Vous êtes sur la page 1sur 104

G.R. No.

12099 October 30, 1997 The trial court declared that the will was executed in accordance with
the formalities prescribed by law. It, however, ruled that Asuncion
MANUEL G. REYES, MILA G. REYES, DANILO G. REYES, Reyes, based on the testimonies of the witnesses, was never married to
LYN AGAPE, ESTEBANA GALOLO, and CELSA the deceased Reyes and, therefore, their relationship was an adulterous
AGAPE, petitioners, vs. one.
COURT OF APPEALS AND JULIO VIVARES, respondent.
Thus:
TORRES, JR., J.: The admission in the will by the testator to the illicit
relationship between him and ASUNCION REYES
Unless legally flawed, a testator's intention in his last will and EBARLE who is somebody else's wife, is further bolstered,
testament is its "life and soul" which deserves reverential observance. strengthened, and confirmed by the direct testimonies of the
petitioner himself and his two "attesting" witnesses during
The controversy before us deals with such a case. the trial.
In both cases, the common denominator is the immoral,
Petitioners Manuel G. Reyes, Mila G. Reyes, Danilo G. Reyes, Lyn meretrecious, adulterous and illicit relationship existing
Agape, Marites Agape, Estebana Galolo and Celsa Agape, the between the testator and the devisee prior to the death of the
oppositors in Special Proceedings No. 112 for the probate of the will testator, which constituted the sole and primary
of Torcuato J. Reyes, assail in this petition for review the decision of consideration for the devise or legacy, thus making the will
the Court of Appeals 1 dated November 29, 1995, the dispositive intrinsically invalid. 4
portion of which reads:
Wherefore, premises considered, the judgment appealed The will of Reyes was admitted to probate except for paragraph II (a)
from allowing or admitting the will of Torcuato J. Reyes to and (b) of the will which was declared null and void for being contrary
probate and directing the issuance of Letters Testamentary to law and morals. Hence, Julio Vivares filed an appeal before the
in favor of petition Julio A. Vivares as executor without Court of Appeals with the allegation that the oppositors failed to
bond is AFFIRMED but modified in that the declaration that present any competent evidence that Asuncion Reyes was legally
paragraph II of the Torcuato Reyes' last will and testament, married to another person during the period of her cohabitation with
including subparagraphs (a) and (b) are null and void for Torcuato Reyes.
being contrary to law is hereby SET ASIDE, said paragraph
II and subparagraphs (a) and (b) are declared VALID. On November 29, 1995, the Court of Appeals promulgated the assailed
Except as above modified, the judgment appealed from is decision which affirmed the trial court's decision admitting the will for
AFFIRMED. SO ORDERED. 2 probate but with the modification that paragraph II including
subparagraphs (a) and (b) were declared valid. The appellate court
The antecedent facts: stated:
On January 3, 1992, Torcuato J. Reyes executed his last will and Considering that the oppositors never showed any
testament declaring therein in part, to wit: competent, documentary or otherwise during the trial to
xxx xxx xxx show that Asuncion "Oning" Reyes' marriage to the testator
II. I give and bequeath to my wife Asuncion "Oning" R. was inexistent or void, either because of a pre-existing
Reyes the following properties to wit: marriage or adulterous relationship, the trial court gravely
a. All my shares of our personal properties consisting among erred in striking down paragraph II (a) and (b) of the subject
others of jewelries, coins, antiques, statues, tablewares, Last Will and Testament, as void for being contrary to law
furnitures, fixtures and the building; and morals. Said declarations are not sufficient to destroy the
b. All my shares consisting of one half (1/2) or 50% of all presumption of marriage. Nor is it enough to overcome the
the real estates I own in common with my brother Jose, very declaration of the testator that Asuncion Reyes is his
situated in Municipalities of Mambajao, Mahinog, wife. 5
Guinsiliban, Sagay all in Camigiun; real estates in Lunao,
Gingoog, Caamulan, Sugbongcogon, Boloc-Boloc, Dissatisfied with the decision of the Court of Appeals, the oppositors
Kinoguitan, Balingoan, Sta. Ines, Talisay, all in the province filed this petition for review.
of Misamis Oriental. 3
Petitioners contend that the findings and conclusion of the Court of
The will consisted of two pages and was signed by Torcuato Reyes in Appeals was contrary to law, public policy and evidence on record.
the presence of three witnesses: Antonio Veloso, Gloria Borromeo, Torcuato Reyes and Asuncion "Oning" Reyes were collateral relatives
and Soledad Gaputan. Private respondent Julio A. Vivares was up to the fourth civil degree. Witness Gloria Borromeo testified that
designated the executor and in his default or incapacity, his son Roch Oning Reyes was her cousin as her mother and the latter's father were
Alan S. Vivares. sister and brother. They were also nieces of the late Torcuato Reyes.
Thus, the purported marriage of the deceased Reyes and Oning Reyes
Reyes died on May 12, 1992 and on May 21, 1992, private respondent was void ab initio as it was against public policy pursuant to Article
filed a petition for probate of the will before the Regional Trial Court 38 (1) of the Family Code. Petitioners further alleged that Oning Reyes
of Mambajao, Camiguin. The petition was set for hearing and the order was already married to Lupo Ebarle at the time she was cohabiting with
was published in the Mindanao Daily Post, a newspaper of general the testator hence, she could never contract any valid marriage with the
circulation, once a week for three consecutive weeks. Notices were latter. Petitioners argued that the testimonies of the witnesses as well
likewise sent to all the persons named in the petition. as the personal declaration of the testator, himself, were sufficient to
destroy the presumption of marriage. To further support their
On July 21, 1992, the recognized natural children of Torcuato Reyes contention, petitioners attached a copy of the marriage certificate of
with Estebana Galolo, namely Manuel, Mila, and Danilo all surnamed Asuncion Reyes and Lupo Ebarle. 6
Reyes, and the deceased's natural children with Celsa Agape, namely
Lyn and Marites Agape, filed an opposition with the following The petition is devoid of merit.
allegations: a) that the last will and testament of Reyes was not
executed and attested in accordance with the formalities of law; and b) As a general rule, courts in probate proceedings are limited to pass only
that Asuncion Reyes Ebarle exerted undue and improper influence upon the extrinsic validity of the will sought to be probated. 7 Thus,
upon the testator at the time of the execution of the will. The opposition the court merely inquires on its due execution, whether or not it
further averred that Reyes was never married to and could never marry complies with the formalities prescribed by law, and the testamentary
Asuncion Reyes, the woman he claimed to be his wife in the will, capacity of the testator. It does not determine nor even by implication
because the latter was already married to Lupo Ebarle who was still prejudge the validity or efficacy of the will's provisions. 8 The intrinsic
then alive and their marriage was never annulled. Thus, Asuncion can validity is not considered since the consideration thereof usually comes
not be a compulsory heir for her open cohabitation with Reyes was only after the will has been proved and allowed. There are, however,
violative of public morals. notable circumstances wherein the intrinsic validity was first
determined as when the defect of the will is apparent on its face and
On July 22, 1992, the trial court issued an order declaring that it had the probate of the will may become a useless ceremony if it is
Acquired jurisdiction over the petition and, therefore, allowed the intrinsically invalid. 9 The intrinsic validity of a will may be passed
presentation of evidence. After the presentation of evidence and upon because "practical considerations" demanded it as when there is
submission of the respective memoranda, the trial court issued its preterition of heirs or the testamentary provisions are of doubtful
decision on April 23, 1993. legality. 10 Where the parties agree that the intrinsic validity be first
determined, the probate court may also do so. 11 Parenthetically, the

1
rule on probate is not inflexible and absolute. Under exceptional before the probate court to support their position that Asuncion Reyes
circumstances, the probate court is not powerless to do what the had an existing marriage with Ebarle constituted a waiver and the same
situation constrains it to do and pass upon certain provisions of the evidence can no longer be entertained on appeal, much less in this
will. 12 petition for review. This Court would not try the case anew or settle
The case at bar arose from the institution of the petition for the probate factual issues since its jurisdiction is confined to resolving questions
of the will of the late Torcuato Reyes. Perforce, the only issues to be of law which have been passed upon by the lower courts. The settled
settled in the said proceeding were: (1) whether or not the testator rule is that the factual findings of the appellate court will not be
had animus testandi; (2) whether or not vices of consent attended the disturbed unless shown to be contrary to the evidence on the record,
execution of the will; and (3) whether or not the formalities of the will which petitioners have not shown in this case. 15
had been complied with. Thus, the lower court was not asked to rule Considering the foregoing premises, we sustain the findings of the
upon the intrinsic validity or efficacy of the provisions of the will. As appellate court it appearing that it did not commit a reversible error in
a result, the declaration of the testator that Asuncion "Oning" Reyes issuing the challenged decision.
was his wife did not have to be scrutinized during the probate
proceedings. The propriety of the institution of Oning Reyes as one of ACCORDINGLY, decision appealed from dated November 29, 1995,
the devisees/legatees already involved inquiry on the will's intrinsic is hereby AFFIRMED and the instant petition for review is DENIED
validity and which need not be inquired upon by the probate court. for lack of merit. SO ORDERED.

The lower court erroneously invoked the ruling in Nepomuceno G.R. No. L-62952 October 9, 1985
vs. Court of Appeals (139 SCRA 206) in the instant case. In the case
aforesaid, the testator himself, acknowledged his illicit relationship SOFIA J. NEPOMUCENO, petitioner, vs.
with the devisee, to wit: THE HONORABLE COURT OF APPEALS, RUFINA GOMEZ,
Art. IV. That since 1952, I have been living, as man and wife, OSCAR JUGO ANG, CARMELITA JUGO, respondents.
with one Sofia J. Nepomuceno, whom I declared and avow
to be entitled to my love an [sic] affection, for all the things GUTIERREZ, JR., J.:
which she has done for me, now and in the past; that while
Sofia J. Nepomuceno has with my full knowledge and This is a petition for certiorari to set aside that portion of the decision
consent, did comfort and represent myself as her own of the respondent Court of Appeals (now intermediate Appellate
husband, in truth and in fact, as well as in the eyes of the law, Court) dated June 3, 1982, as amended by the resolution dated August
I could not bind her to me in the holy bonds of matrimony 10, 1982, declaring as null and void the devise in favor of the petitioner
because of my aforementioned previous marriage. and the resolution dated December 28, 1982 denying petitioner's
motion for reconsideration.
Thus, the very tenor of the will invalidates the legacy because the
testator admitted he was disposing of the properties to a person with Martin Jugo died on July 16, 1974 in Malabon, Rizal. He left a last
whom he had been living in concubinage. 13 To remand the case would Will and Testament duly signed by him at the end of the Will on page
only be a waste of time and money since the illegality or defect was three and on the left margin of pages 1, 2 and 4 thereof in the presence
already patent. This case is different from the Nepomuceno case. of Celestina Alejandro, Myrna C. Cortez, and Leandro Leano, who in
Testator Torcuato Reyes merely stated in his will that he was turn, affixed their signatures below the attestation clause and on the
bequeathing some of his personal and real properties to his wife, left margin of pages 1, 2 and 4 of the Will in the presence of the testator
Asuncion "Oning" Reyes. There was never an open admission of any and of each other and the Notary Public. The Will was acknowledged
illicit relationship. In the case of Nepomuceno, the testator admitted before the Notary Public Romeo Escareal by the testator and his three
that he was already previously married and that he had an adulterous attesting witnesses.
relationship with the devisee.
In the said Will, the testator named and appointed herein petitioner
We agree with the Court of Appeals that the trial court relied on Sofia J. Nepomuceno as his sole and only executor of his estate. It is
uncorroborated testimonial evidence that Asuncion Reyes was still clearly stated in the Will that the testator was legally married to a
married to another during the time she cohabited with the testator. The certain Rufina Gomez by whom he had two legitimate children, Oscar
testimonies of the witnesses were merely hearsay and even uncertain and Carmelita, but since 1952, he had been estranged from his lawfully
as to the whereabouts or existence of Lupo Ebarle, the supposed wedded wife and had been living with petitioner as husband and wife.
husband of Asuncion. Thus: In fact, on December 5, 1952, the testator Martin Jugo and the
The foregoing testimony cannot go against the declaration of petitioner herein, Sofia J. Nepomuceno were married in Victoria,
the testator that Asuncion "Oning" Reyes is his wife. Tarlac before the Justice of the Peace. The testator devised to his forced
In Alvarado v. City Government of Tacloban (supra) the heirs, namely, his legal wife Rufina Gomez and his children Oscar and
Supreme Court stated that the declaration of the of the Carmelita his entire estate and the free portion thereof to herein
husband is competent evidence to show the fact of marriage. petitioner. The Will reads in part:
Art. III. That I have the following legal heirs, namely: my
Considering that the oppositors never showed any competent aforementioned legal wife, Rufina Gomez, and our son,
evidence, documentary or otherwise during the trial to show Oscar, and daughter Carmelita, both surnamed Jugo, whom
that Asuncion "Oning" Reyes' marriage to the testator was I declare and admit to be legally and properly entitled to
inexistent or void, either because of a pre-existing marriage inherit from me; that while I have been estranged from my
or adulterous relationship, the trial court gravely erred in above-named wife for so many years, I cannot deny that I
striking down paragraph II (a) and (b) of the subject Last was legally married to her or that we have been separated up
Will and Testament, as void for being contrary to law and to the present for reasons and justifications known fully well
morals. Said declarations are not sufficient to destroy the by them:
presumption of marriage. Nor is it enough to overcome the
very declaration of the testator that Asuncion Reyes is his Art. IV. That since 1952, 1 have been living, as man and
wife. 14 wife with one Sofia J. Nepomuceno, whom I declare and
avow to be entitled to my love and affection, for all the things
In the elegant language of Justice Moreland written decades ago, he which she has done for me, now and in the past; that while
said Sofia J. Nepomuceno has with my full knowledge and
A will is the testator speaking after death. Its provisions have consent, did comport and represent myself as her own
substantially the same force and effect in the probate court husband, in truth and in fact, as well as in the eyes of the law,
as if the testator stood before the court in full life making the I could not bind her to me in the holy bonds of matrimony
declarations by word of mouth as they appear in the will. because of my aforementioned previous marriage;
That was the special purpose of the law in the creation of the
instrument known as the last will and testament. Men wished On August 21, 1974, the petitioner filed a petition for the probate of
to speak after they were dead and the law, by the creation of the last Will and Testament of the deceased Martin Jugo in the Court
that instrument, permitted them to do so. . . . All doubts must of First Instance of Rizal, Branch XXXIV, Caloocan City and asked
be resolved in favor of the testator's having meant just what for the issuance to her of letters testamentary.
he said. (Santos vs. Manarang, 27 Phil. 209).
On May 13, 1975, the legal wife of the testator, Rufina Gomez and her
Petitioners tried to refute this conclusion of the Court of Appeals by children filed an opposition alleging inter alia that the execution of the
presenting belatedly a copy of the marriage certificate of Asuncion Will was procured by undue and improper influence on the part of the
Reyes and Lupo Ebarle. Their failure to present the said certificate petitioner; that at the time of the execution of the Will, the testator was
2
already very sick and that petitioner having admitted her living in valid and enforceable or otherwise. (Fernandez v.
concubinage with the testator, she is wanting in integrity and thus, Dimagiba, 21 SCRA 428)
letters testamentary should not be issued to her.
The petition below being for the probate of a Will, the court's
On January 6, 1976, the lower court denied the probate of the Will on area of inquiry is limited to the extrinsic validity thereof. The
the ground that as the testator admitted in his Will to cohabiting with testators testamentary capacity and the compliance with the
the petitioner from December 1952 until his death on July 16, 1974, formal requisites or solemnities prescribed by law are the
the Will's admission to probate will be an Idle exercise because on the only questions presented for the resolution of the court. Any
face of the Will, the invalidity of its intrinsic provisions is evident. inquiry into the intrinsic validity or efficacy of the
provisions of the will or the legality of any devise or legacy
The petitioner appealed to the respondent-appellate court. is premature.
xxx xxx xxx
On June 2, 1982, the respondent court set aside the decision of the
Court of First Instance of Rizal denying the probate of the will. The True or not, the alleged sale is no ground for the dismissal of
respondent court declared the Will to be valid except that the devise in the petition for probate. Probate is one thing; the validity of
favor of the petitioner is null and void pursuant to Article 739 in the testamentary provisions is another. The first decides the
relation with Article 1028 of the Civil Code of the Philippines. The execution of the document and the testamentary capacity of
dispositive portion of the decision reads: the testator; the second relates to descent and distribution
WHEREFORE, the decision a quo is hereby set aside, the (Sumilang v. Ramagosa, 21 SCRA 1369)
will in question declared valid except the devise in favor of xxx xxx xxx
the appellant which is declared null and void. The properties
so devised are instead passed on in intestacy to the appellant To establish conclusively as against everyone, and once for
in equal shares, without pronouncement as to cost. all, the facts that a will was executed with the formalities
required by law and that the testator was in a condition to
On June 15, 1982, oppositors Rufina Gomez and her children filed a make a will, is the only purpose of the proceedings under the
"Motion for Correction of Clerical Error" praying that the word new code for the probate of a will. (Sec. 625). The judgment
"appellant" in the last sentence of the dispositive portion of the in such proceedings determines and can determine nothing
decision be changed to "appellees" so as to read: "The properties so more. In them the court has no power to pass upon the
devised are instead passed on intestacy to the appellees in equal shares, validity of any provisions made in the will. It can not decide,
without pronouncement as to costs." The motion was granted by the for example, that a certain legacy is void and another one
respondent court on August 10, 1982. valid. ... (Castaneda v. Alemany, 3 Phil. 426)

On August 23, 1982, the petitioner filed a motion for reconsideration. The rule, however, is not inflexible and absolute. Given exceptional
This was denied by the respondent court in a resolution dated circumstances, the probate court is not powerless to do what the
December 28, 1982. situation constrains it to do and pass upon certain provisions of the
Will.
The main issue raised by the petitioner is whether or not the respondent
court acted in excess of its jurisdiction when after declaring the last In Nuguid v. Nuguid (17 SCRA 449) cited by the trial court, the
Will and Testament of the deceased Martin Jugo validly drawn, it went testator instituted the petitioner as universal heir and completely
on to pass upon the intrinsic validity of the testamentary provision in preterited her surviving forced heirs. A will of this nature, no matter
favor of herein petitioner. how valid it may appear extrinsically, would be null and void. Separate
or latter proceedings to determine the intrinsic validity of the
The petitioner submits that the validity of the testamentary provision testamentary provisions would be superfluous.
in her favor cannot be passed upon and decided in the probate
proceedings but in some other proceedings because the only purpose Even before establishing the formal validity of the will, the Court
of the probate of a Will is to establish conclusively as against everyone in Balanay .Jr. v. Martinez (64 SCRA 452) passed upon the validity of
that a Will was executed with the formalities required by law and that its intrinsic provisions.
the testator has the mental capacity to execute the same. The petitioner
further contends that even if the provisions of paragraph 1 of Article Invoking "practical considerations", we stated:
739 of the Civil Code of the Philippines were applicable, the The basic issue is whether the probate court erred in passing
declaration of its nullity could only be made by the proper court in a upon the intrinsic validity of the will, before ruling on its
separate action brought by the legal wife for the specific purpose of allowance or formal validity, and in declaring it void.
obtaining a declaration of the nullity of the testamentary provision in
the Will in favor of the person with whom the testator was allegedly We are of the opinion that in view of certain unusual
guilty of adultery or concubinage. provisions of the will, which are of dubious legality, and
because of the motion to withdraw the petition for probate
The respondents on the other hand contend that the fact that the last (which the lower court assumed to have been filed with the
Will and Testament itself expressly admits indubitably on its face the petitioner's authorization) the trial court acted correctly in
meretricious relationship between the testator and the petitioner and passing upon the will's intrinsic validity even before its
the fact that petitioner herself initiated the presentation of evidence on formal validity had been established. The probate of a will
her alleged ignorance of the true civil status of the testator, which led might become an Idle ceremony if on its face it appears to
private respondents to present contrary evidence, merits the be intrinsically void. Where practical considerations demand
application of the doctrine enunciated in Nuguid v. Felix Nuguid, et that the intrinsic validity of the will be passed upon, even
al. (17 SCRA 449) and Felix Balanay, Jr. v. Hon. Antonio Martinez, before it is probated, the court should meet the issue.
et al. (G.R. No. L- 39247, June 27, 1975). Respondents also submit
that the admission of the testator of the illicit relationship between him There appears to be no more dispute at this time over the extrinsic
and the petitioner put in issue the legality of the devise. We agree with validity of the Will. Both parties are agreed that the Will of Martin
the respondents. Jugo was executed with all the formalities required by law and that the
testator had the mental capacity to execute his Will. The petitioner
The respondent court acted within its jurisdiction when after declaring states that she completely agrees with the respondent court when in
the Will to be validly drawn, it went on to pass upon the intrinsic resolving the question of whether or not the probate court correctly
validity of the Will and declared the devise in favor of the petitioner denied the probate of Martin Jugo's last Will and Testament, it ruled:
null and void. This being so, the will is declared validly drawn. (Page 4,
Decision, Annex A of Petition.)
The general rule is that in probate proceedings, the court's area of
inquiry is limited to an examination and resolution of the extrinsic On the other hand the respondents pray for the affirmance of the Court
validity of the Will. The rule is expressed thus: of Appeals' decision in toto.
xxx xxx xxx
... It is elementary that a probate decree finally and The only issue, therefore, is the jurisdiction of the respondent court to
definitively settles all questions concerning capacity of the declare the testamentary provision in favor of the petitioner as null and
testator and the proper execution and witnessing of his last void.
Will and testament, irrespective of whether its provisions are

3
We sustain the respondent court's jurisdiction. As stated in Nuguid v.
Nuguid, (supra): Instead of limiting herself to proving the extrinsic validity of
We pause to reflect. If the case were to be remanded for the will, it was petitioner who opted to present evidence on
probate of the will, nothing will be gained. On the contrary, her alleged good faith in marrying the testator. (Testimony
this litigation will be protracted. And for aught that appears of Petitioner, TSN of August 1, 1982, pp. 56-57 and pp. 62-
in the record, in the record, in the event of probate or if the 64).
court rejects the will, probability exists that the case will
come up once again before us on the same issue of the Private respondents, naturally, presented evidence that
intrinsic validity or nullity of the will. Result, waste of time, would refute the testimony of petitioner on the point.
effort, expense, plus added anxiety. These are the practical
considerations that induce us to a belief that we might as well Sebastian Jugo, younger brother of the deceased testator,
meet head-on the issue of the validity of the provisions of the testified at length on the meretricious relationship of his
will in question. (Section 2, Rule 1, Rules of Court. Case, et brother and petitioner. (TSN of August 18,1975).
al. v. Jugo, et al., 77 Phil. 517, 522). After all, there exists a
justiciable controversy crying for solution. Clearly, the good faith of petitioner was by option of the
parties made a decisive issue right at the inception of the
We see no useful purpose that would be served if we remand the case.
nullified provision to the proper court in a separate action for that
purpose simply because, in the probate of a will, the court does not Confronted by the situation, the trial court had to make a
ordinarily look into the intrinsic validity of its provisions. ruling on the question.

Article 739 of the Civil Code provides: When the court a quo held that the testator Martin Jugo and
The following donations shall be void: petitioner 'were deemed guilty of adultery or concubinage',
(1) Those made between persons who were guilty of it was a finding that petitioner was not the innocent woman
adultery or concubinage at the time of the she pretended to be.
donation; xxx xxx xxx
(2) Those made between persons found guilty of the 3. If a review of the evidence must be made nonetheless, then
same criminal offense, in consideration thereof; private respondents respectfully offer the following analysis:
(3) Those made to a public officer or his wife, FIRST: The secrecy of the marriage of petitioner with the
descendants and ascendants, by reason of his deceased testator in a town in Tarlac where neither she nor
office. the testator ever resided. If there was nothing to hide from,
In the case referred to in No. 1, the action for declaration of why the concealment' ? Of course, it maybe argued that the
nullity may be brought by the spouse of the donor or donee; marriage of the deceased with private respondent Rufina
and the guilt of the donor and donee may be proved by Gomez was likewise done in secrecy. But it should be
preponderance of evidence in the same action. remembered that Rufina Gomez was already in the family
way at that time and it would seem that the parents of Martin
Article 1028 of the Civil Code provides: Jugo were not in favor of the marriage so much so that an
The prohibitions mentioned in Article 739, concerning action in court was brought concerning the marriage.
donations inter vivos shall apply to testamentary provisions. (Testimony of Sebastian Jugo, TSN of August 18, 1975, pp.
29-30)
In Article III of the disputed Will, executed on August 15, 1968, or
almost six years before the testator's death on July 16, 1974, Martin SECOND: Petitioner was a sweetheart of the deceased
Jugo stated that respondent Rufina Gomez was his legal wife from testator when they were still both single. That would be in
whom he had been estranged "for so many years." He also declared 1922 as Martin Jugo married respondent Rufina Gomez on
that respondents Carmelita Jugo and Oscar Jugo were his legitimate November 29, 1923 (Exh. 3). Petitioner married the testator
children. In Article IV, he stated that he had been living as man and only on December 5, 1952. There was a space of about 30
wife with the petitioner since 1952. Testator Jugo declared that the years in between. During those 30 years, could it be believed
petitioner was entitled to his love and affection. He stated that that she did not even wonder why Martin Jugo did not marry
Nepomuceno represented Jugo as her own husband but "in truth and in her nor contact her anymore after November, 1923 - facts
fact, as well as in the eyes of the law, I could not bind her to me in the that should impel her to ask her groom before she married
holy bonds of matrimony because of my aforementioned previous him in secrecy, especially so when she was already about 50
marriage. years old at the time of marriage.

There is no question from the records about the fact of a prior existing THIRD: The fact that petitioner broke off from Martin Jugo
marriage when Martin Jugo executed his Will. There is also no dispute in 1923 is by itself conclusive demonstration that she new
that the petitioner and Mr. Jugo lived together in an ostensible marital that the man she had openly lived for 22 years as man and
relationship for 22 years until his death. wife was a married man with already two children.
It is also a fact that on December 2, 1952, Martin Jugo and Sofia J.
Nepomuceno contracted a marriage before the Justice of the Peace of FOURTH: Having admitted that she knew the children of
Victoria, Tarlac. The man was then 51 years old while the woman was respondent Rufina Gomez, is it possible that she would not
48. Nepomuceno now contends that she acted in good faith for 22 years have asked Martin Jugo whether or not they were his
in the belief that she was legally married to the testator. illegitimate or legitimate children and by whom? That is un-
Filipino.
The records do not sustain a finding of innocence or good faith. As
argued by the private respondents: FIFTH: Having often gone to Pasig to the residence of the
First. The last will and testament itself expressly admits parents of the deceased testator, is it possible that she would
indubitably on its face the meretricious relationship between not have known that the mother of private respondent Oscar
the testator and petitioner, the devisee. Jugo and Carmelita Jugo was respondent Rufina Gomez,
considering that the houses of the parents of Martin Jugo
Second. Petitioner herself initiated the presentation of (where he had lived for many years) and that of respondent
evidence on her alleged ignorance of the true civil status of Rufina Gomez were just a few meters away?
the testator, which led private respondents to present
contrary evidence. Such pretentions of petitioner Sofia Nepomuceno are
unbelievable. They are, to say the least, inherently
In short, the parties themselves dueled on the intrinsic improbable, for they are against the experience in common
validity of the legacy given in the will to petitioner by the life and the ordinary instincts and promptings of human
deceased testator at the start of the proceedings. nature that a woman would not bother at all to ask the man
she was going to marry whether or not he was already
Whether or not petitioner knew that testator Martin Jugo, the married to another, knowing that her groom had children. It
man he had lived with as man and wife, as already married, would be a story that would strain human credulity to the
was an important and specific issue brought by the parties limit if petitioner did not know that Martin Jugo was already
before the trial court, and passed upon by the Court of a married man in view of the irrefutable fact that it was
Appeals. precisely his marriage to respondent Rufina Gomez that led

4
petitioner to break off with the deceased during their testator, provided that these young men behave themselves as they
younger years. have done up to the present time, and do not cease to study until taking
the degree of bachelor of arts, and then take a business course, if their
Moreover, the prohibition in Article 739 of the Civil Code is against health will permit, their support to be paid out of the testamentary
the making of a donation between persons who are living in adultery estate and they to live in the house of the widow.
or concubinage. It is the donation which becomes void. The giver
cannot give even assuming that the recipient may receive. The very "Eleventh. The testator declares that in case the said young men should
wordings of the Will invalidate the legacy because the testator be still engaged in study at the time of the death of the testators wife,
admitted he was disposing the properties to a person with whom he they shall continue to be supported at the expense of the testamentary
had been living in concubinage. estate, without deducting such expenses from their legacies, if they
should desire to continue the same studies.
WHEREFORE, the petition is DISMISSED for lack of merit. The
decision of the Court of Appeals, now Intermediate Appellate Court, "Eighteenth. The testator further states that although his wife is at the
is AFFIRMED. No costs. SO ORDERED. present time fifty-five years of age, and consequently is not likely to
marry again, as she herself says, nevertheless it is possible that the
[G.R. No. 1027. May 19, 1903. ] opposite of what she asserts might occur, and, if so, then it is to be
regarded as sufficient reason to authorize the young men Ramon and
RAMON DEL ROSARIO, Plaintiff-Appellee, v. CLEMENTE Enrique, so often referred to, to separate from their aunt, in which event
DEL ROSARIO, Defendant-Appellant. they are to be supported by the testamentary estate on a small
allowance of twenty-five pesos per month, provided that they continue
SYLLABUS their studies or should be in poor health, this without in any respect
reducing the amount of their shares."
1. WILLS; CONSTRUCTION. In the interpretation and
construction of testamentary provisions the intention of the testator Don Ramon del Rosario, one of the persons mentioned in these
controls. clauses, brought this action in 1902 against Don Clemente del Rosario,
the then executor, asking, among other things, that the said executor
2. ID.; ID.; DESCRIPTION OF LEGATEES. Where legatees are pay him an allowance from the death of the widow of the testator at
pointed out by name in the will the fact that they are referred to as the the rate of 75 pesos a month, and that the executor allow him to live in
natural sons of a third person does not make the legacy conditional the house in which the widow was living at that time.
upon proof of such relationship but is descriptive merely.
The widow of the testator, Doa Honorata Valdez, died on July 7,
3. ID.; ID.; ACCRETION. A legacy of a certain sum to two 1900.
nephews in equal shares is payable in its entirety to the survivor of
them in case one dies before the testator. The court below ordered judgment in respect to this allowance, and the
right to live in the house as prayed for by the plaintiff. In this we think
4. ID.; ID.; LEGACIES. The reservation of property in a will to the that the court erred.
children of the legatee thereof in case of the latters death must be
regarded as a legacy if made so by express words; otherwise the While by the eighth clause the support of the plaintiff and of Don
children of the legatee take by inheritance. Enrique Gloria is charged against the estate, yet the eleventh clause
makes it plain that this unconditional right was to last only during the
5. ID.; ID.; PAYMENT OF LEGACIES. Where the will authorizes lifetime of the widow. After her death the right to this allowance is
the executor to pay legacies, expressly or by natural inference, action made to depend on the continuance of their studies. That this is the
will lie by the legatee against the executor to compel allowance and correct construction of the will is made more plain by the eighteenth
payment thereof. clause above quoted. In the case of their separation from their aunt by
her remarriage, they were entitled to the specified allowance of 25
6. ID.; ID.; ID. In an action to compel payment of legacies the pesos a month only on condition that they were pursuing, their studies
defense that an inventory is being formed or that creditors have not or were in poor health.
been paid must be set up in the answer in order to be availed of.
The court did not find that the plaintiff was still pursuing his studies.
7. ID.; ID.; PARTITION OF ESTATE. An executor who is also an On the contrary, he found that the plaintiff had fulfilled the condition
heir is not qualified to make partition of the estate, and a legatee who by obtaining the degree of Bachelor of Arts in 1898.
seeks the payment of a legacy involving a partition must sue all persons
interested in the estate. The right to live in the house of the widow terminated at her death.

8. ID.; ID. Where the executor of an estate dies pending the II. The seventh clause of the will of Don Nicolas is as follows:
determination of an appeal from a judgment rendered against him and
in favor of a legatee, and the latter succeeding as executor dismisses "Seventh. The testator states that in the present condition of his affairs
the appeal, an order may be granted permitting any interested party to he has acquired, during his married life, some tens of thousands of
prosecute the appeal. dollars, of which one-half belongs to his wife as her share of the profits
of the conjugal partnership, and the other half belongs to him as his
9. CIVIL PROCEDURE; ASSIGNMENT OF ERROR ON APPEAL. share of such profits; but, in view of the agreement entered into
Where the appellant places his assignment of errors in the bill of between the two spouses, the property will not be partitioned, and upon
exceptions instead of in his brief, and no objection is made at the the death of the testator all the said property will pass to his wife, in
opportune time, the judgment will not be affirmed upon the ground of order that she may enjoy the revenue therefrom during her lifetime, but
this nonprejudicial error. without authority to convey any of such property, inasmuch as she,
being grateful for the benefit resulting, to her, binds herself in turn to
DECISION deliver said property at her death to the testators brothers, Don
WILLARD, J. : Clemente del Rosario and Don Rosendo del Rosario, and his sister,
Doa Luisa del Rosario, who shall enjoy the revenue from the said
I. Don Nicolas del Rosario died in this city on July 14, 1897, leaving a property during their respective lives, and shall then, in turn, transmit
last will, the eighth, ninth, eleventh, and eighteenth clauses of which the same to their male children, both those born in wedlock and natural
are as follows: children who may be known."

"Eighth. The testator declares that the 5,000 pesos which he brought to This was later modified by a codicil, as follows:
his marriage he hereby bequeathes to his nephews Enrique Gloria y
Rosario and Ramon del Rosario, natural children of his brother "That in the seventh clause of said testament he desires and wills that
Clemente del Rosario, notwithstanding the fact that they purport to be in the distribution of his property and that of his wife among the male
the issue of the marriage of Escolastico Gloria and Rosendo del children of his brothers, Clemente and Rosendo del Rosario, and those
Rosario, successively. of his sister, Luisa del Rosario, in such distribution his nephews
Enrique Gloria and Ramon del Rosario must be understood to be
"Ninth. The testator declares that the said sum of 5,000 pesos is to be included, in addition to the legacies mentioned in his said testament."
divided, 3,000 pesos for the first named and 2,000 pesos for the second
named, the delivery of the said sums to be effected by the wife of the The thirteenth clause of his will was as follows:

5
The plaintiff was entitled to one-half of this legacy in his own right.
"The testator declares that in case Doa Luisa del Rosario should die This has been paid to him. Don Enrique Gloria died before the testatrix.
before or after the wife of the testator, then the legacy due her by virtue By the provisions of articles 982 and 983 of the Civil Code the right of
of this will shall not pass in its entirety to her male children, except as accretion exists as to the other half in favor of the plaintiff and he is
to the sum of 1,000 pesos, the remainder to pass to Don Enrique Gloria entitled to have it paid to him.
Rosario and Don Ramon del Rosario, natural sons of Don Clemente
del Rosario, as already stated." (3) The will of Doa Honorata plainly declares that, on the death of
any one of the life tenants, the male children of such tenant shall
This was modified by the codicil as follows: inherit, and in respect to Doa Luisa it is expressly declared that this
shall take place whether she dies before or after the testatrix. The
"That in the thirteenth clause the testator provided that upon the death derecho de acrecer did not therefore exist in favor of the other two life
of his sister, Luisa del Rosario, her male children were to inherit from tenants, Don Clemente and Don Rosendo. "En la sucesion testada es
her up to the sum of 1,000 pesos, and this he rectifies, for better ley preferente la voluntad del testador, de modo que este prohibiendo
understanding, to the effect that it is his will that the remainder of all expresamente el derecho de acrecer, nombrando sustitutos, o marcando
her portion should be divided into equal parts, one-third to go to his el destino especial de cada porcion vacante, excluye la aplicacion de
brother Don Clemente del Rosario and the other two thirds to be los articulos que vamos a examinar." (Manresa, Comentarios al Codigo
divided equally among his said nephews, Enrique Gloria and Ramon Civil, p. 276.)
del Rosario."
This right does, however, exist in the share of Doa Luisa in favor of
Doa Honorata Valdez made her will three days after that of her the plaintiff, for the reasons stated in connection with the legacy of
husband. The seventh clause is as follows: 3,000 pesos.

"The testatrix declares that she institutes her beloved husband, Don (4) We have passed upon the rights of the plaintiff to the share of Doa
Nicolas del Rosario y Alejo, as her heir to all the property which she Luisa under the will of Doa Honorata, because the interest is
may have at her death, and in the unexpected case of the death of her expressly left to him (en concepto de legado) as a legacy. This is
said husband then she institutes as heirs her brothers-in-law, Don controlling. (Manresa, 315.)
Rosendo and Don Clemente del Rosario y Alejo, and her sister-in-law,
Doa Luisa del Rosario, who shall enjoy the usufruct during their These or equivalent words are wanting in the will of Don Nicolas.
lifetime of all the revenue of the said property. Upon the death of any Applying article 668 of the Civil Code, we must hold that any interest
of them, then the property shall pass to the male children of her said which the plaintiff may have taken in the share of Doa Luisa under
brothers-in-law and sister-in-law, the issue of lawful marriage or the will of Don Nicolas he took as an heir and not as a legatee.
natural children who may be known; but upon the death of her sister-
in-law, Doa Luisa, then her share shall not pass in its entirety to her The distinction between the two is constantly maintained throughout
male children, except the sum of 1,000 pesos, and the remainder shall the Code, and their rights and obligations differ materially. (Arts. 660,
be paid to her nephews, Don Enrique Gloria and Don Ramon del 668, 768, 790, 858, 891, 1003.)
Rosario, natural children of her brother-in-law Don Clemente del
Rosario." (5) The legatee can demand his legacy from the heir or from the
executor, when the latter is authorized to give it. (Art. 885.) The
Doa Luisa died one year after Don Nicolas and two years before the powers given to the executors by the will of Doa Honorata are
death of Doa Honorata, which, as has been said, occurred on July 7, contained in the fourteenth clause, which is as follows:
1900.
"The testatrix appoints as the executors of her will, in the first place,
Don Enrique Gloria died on July 6, 1900. her beloved husband, Nicolas del Rosario y Alejo, in the second place
her brother-in-law Clemente del Rosario, in the third place her brother-
Don Ramon del Rosario claims in this action that he is now entitled, in-law Rosendo del Rosario, in the fourth place Don Ramon del
by virtue of both wills, to a certain part of the share of the estates left Rosario when he shall attain his majority, all of them without bond and
to said Doa Luisa during her life, and he asks that the defendant be free from the obligation of terminating the administration within the
directed to render accounts and to proceed to the partition of the said legal term. At her death they shall take possession of all such goods
estates. The controversy between the parties upon this branch of the and things as may be her property, and are hereby authorized fully and
case is as follows: as required by law to prepare an inventory of said property, and to
effect the division and partition of the estate among her heirs. She also
The defendant claims that the plaintiff is entitled to nothing under the authorizes them to execute and sign deeds of partition, sales with a
wills, because the gift to him was conditional, the condition being that resolutory condition, cancellations, receipts, acquittances, and such
he should be the natural son of Don Clemente, recognized by the latter other documents as may be necessary."
as such in one of the ways pointed out by the Civil Code; that he can
not prove such recognition, the parol evidence presented at the trial The twenty-first clause of the will of Don Nicolas is substantially the
being prohibited by said Code, and that he has therefore not complied same Each will prohibited any judicial intervention in the settlement
with the condition. of the estates.

The plaintiff claims that such evidence was proper, that both wills state
that Don Ramon del Rosario is the natural son of Don Clemente, and The clause in the will of Doa Honorata which is a copy of that in the
that in any event the bequests are made to the plaintiff by name. will of Don Nicolas is as follows:

The court below, holding the parol evidence immaterial, ordered "The testatrix declares that she expressly prohibits any judicial
judgment for the plaintiff as prayed for. intervention in this her will, although minors, absentees, or persons
under disability be interested therein, as it is her wish and will that all
(1) So far as the disposition of that part of the inheritance left in the the proceedings be conducted extrajudicially, and in case a family
aunts will to Doa Luisa for life is concerned, the question is free from council should be necessary, she designates the persons who, in
doubt. It is distinctly declared that Ramon del Rosario and Enrique accordance with the provisions of the Civil Code now in force, should
Gloria shall take certain parts of it after 1,000 pesos have been form such council, or else leaves their appointment to the discretion of
deducted. They are pointed out by name as the legatees. It is true that her executors."
they are called the natural sons of Don Clemente. But this is merely a
further description of persons already w ell identified, and, if false, can If the executor was not authorized to pay these legacies, the heirs must
be rejected in accordance with the provision of article 773 of the Civil pay them.
de, which by article 789 is applicable to legatees.
The life tenants and the heirs who take the remainder under these wills
(2) The ninth clause of the will of Doa Honorata is as follows: are numerous. If they did not pay the legacies and did not agree upon
an administrator, judicial intervention would be necessary, the very
"The testatrix bequeaths the sum of 3,000 pesos to her nephews thing which the testators had expressly prohibited. The important
Enrique Gloria and Ramon del Rosario in equal parts that is, 1,500 power of making the partition was attempted to be given to the
pesos each." executors. In view of these considerations and a study of the whole
will, we hold that the executors are given power to pay the legacies.

6
executor to submit his accounts to one who has no interest in the estate
The action, therefore, was properly directed against the executor so far except to a money legacy when there is no suggestion that it will not
as it related to the allowance and the legacy of 3,000 pesos. As to these be paid when the right to it is established.
legacies, the action may be supported also under article 902,2, which
allows executors to pay money legacies. In respect to the share of Doa Luisa, there is reason for saying that a
legatee of an aliquot part is entitled to an accounting. But, inasmuch as
It was also properly directed against him, so far as it related to the share in this case there can be no final determination of the rights of the
to which the plaintiff is entitled under the will of Doa Honorata in the parties interested in the estate, because they are not all parties to this
portion left to Doa Luisa for life. suit, the executor should not in this suit be ordered to submit his
accounts.
The provisions of articles 1025-1027 are no obstacle to this suit. That
an inventory is being formed. or that the creditors have not been paid, (8) The plaintiff in his complaint has limited himself to claiming the
is a matter of defense which should have been set up in the answer. allowance, his rights to the share of Doa Luisa, and the legacies left
to him.
It was not properly directed against him in so far as it related to the
similar share left to him by the will of Don Nicolas. He took that as The question as to whether he would be entitled to any part of the share
heir and not as legatee, and the heir can maintain no such action against of Don Clemente upon the latters death, under the seventh clause of
the executor. the two wills, was not presented by the complaint nor passed upon by
the court and is not before us for decision.
The fact that the plaintiff under the will of Doa Honorata is a legatee
of an aliquot part of the estate, having become entitled to receive one- (9) The result of the foregoing considerations is:
third of it on the death of Doa Luisa, does not prevent him from 1. The plaintiff is not entitled to any allowance under either
maintaining this action against the executor. Though such a legatee will.
closely resembles an heir, yet, like all other legatees, he must seek his 2. He is not entitled to live in the house No. 128 Calle Clavel.
share from the heir or executor. (6 Manresa, 561.) 3. He is entitled to be paid, under the ninth clause of the will of
Doa Honorata, the sum of 1,500 pesos, in addition to the
(6) While in this action he has a right to have his interest as legatee 1,500 pesos already received under that clause.
declared, yet it can not be delivered to him without a partition of the 4. He is entitled to the share of the estate left by the will of
estate. Doa Honorata to Doa Luisa during her life, after deducting
1,000 pesos.
It remains to be considered whether the executor has power to make 5. This share can not be set off to him in this suit, but only in a
the partition such power is expressly given by the will. This provision proceeding to which all persons interested in the estate are
is, however, void under the terms of article 1057 of the Civil Code, parties.
which is as follows: 6. His interest in the share left to Doa Luisa during her life by
the will of Don Nicolas can not be determine in this suit.
"The testator may, be an act inter vivos or causa mortis, intrust the 7. The executor can not be required to render in this suit his
mere power of making the division after his death to any person who accounts as such executor.
is not one of the coheirs. 8. The plaintiffs rights under the seventh clause of the two
wins, to the share left to Don Clemente for life are not before
"The provisions of this and the foregoing articles shall be observed us for decision.
even should there be a minor or a person subject to guardianship
among the coheirs; but the trustee must in such case make an inventory III. After judgment had been rendered in the court below and a bill of
of the property of the inheritance, citing the coheirs, the creditors, and exceptions allowed, but before the record had been sent to this court,
the legatees." Don Clemente del Rosario, the defendant, died. After his death Don
Rosendo del Rosario, who was named in both wins to succeed to the
Don Clemente, the executor, against whom the action was directed, executorship on the death of Don Clemente, appeared in the court
was not only an heir as a life tenant but also in fee after the death of below and withdrew the appeal and bill of exceptions. Thereupon the
Don Rosendo if the latter died without issue. Upon the death of the widow of non Clemente, for herself and in representation of the minor
widow, Doa Luisa then being dead, it became his duty to divide the son of her late husband, asked and was granted leave to prosecute the
estate into three parts, or at least to set off the third, which was to pass appeal.
to the plaintiff by the death of the widow and Doa Luisa. In this
partition he was directly interested, for, with his brother Don Rosendo, This ruling was correct. According to the Spanish authorities, anyone
he had a life interest in the part of the estate not set off to the plaintiff legally affected by the judgment might appeal. According to the
Article 1057 prohibited all heir from being contador for this very American authorities, if a trustee refuses to appeal, the beneficiary may
reason, namely, that the partition should be made impartially. do so in his name.

Although the executor has no power to make the partition, the heirs That the son of Don Clemente has a direct interest in the question of
can do so. (Arts. 1058-1060, Civil Code.) the allowance of 75 pesos a month to the plaintiff is plain. We have
held that in respect to this allowance the executor represents the estate
The plaintiff is not bound to remain a coowner with the other heirs. and the judgment against him binds it.
Being a legatee of an aliquot part, he has the same right to seek a
partition that an heir has. (7 Manresa, 578; art. 1051, Codigo Civil.) It would be manifestly unjust to allow an executor, with perhaps only
But in so seeking it he must make parties to his suit all persons a slight personal interest in an estate, by withdrawing an appeal, to
interested in the estate (7 Manresa, 577). This he has not done in this fasten upon the estate a claim which, as we hold, it should not bear.
suit, and he consequently is not entitled to the partition ordered by the
court below. IV. At the argument of this case on the merits, after the appellant had
closed, the respondent made the point for the first time that the
(7) We have held that the only thing that can be decided in this case is appellants brief contained no assignment of errors.
the rights of the plaintiff as legatee.
This is true. But a full assignment of errors is found in the bill of
The court below ordered the executor to render accounts of his exceptions at pages 14 and 15. The appellee answered the brief of the
administration of both estates. appellant without making any suggestion of this mistake. He has been
in no way prejudiced by it, and are can not affirm the judgment on this
As to the estate of Don Nicolas, the only thing here in question is the ground.
right to the allowance. As we hold that the plaintiff is not entitled to it,
he is not entitled to any statement of accounts as such pretended The judgment of the court below is reversed and the case remanded
legatee. with directions to the court below to enter judgment in accordance with
this opinion. The costs of this instance will be equally divided between
As to the estate of Doa Honorata, he is entitled to be paid a legacy of the parties. So ordered.
1,500 pesos. Article 907 requires the executor to render accounts to the
heir, not to the legatee; and although by article 789 all of the provisions
of Chapter II (in which both articles are found) relating to heirs are
made applicable to legatees, we can not hold that this requires an

7
G.R. No. 113725 June 29, 2000 Dr. Jorge Rabadilla died in 1983 and was survived by his wife Rufina
and children Johnny (petitioner), Aurora, Ofelia and Zenaida, all
JOHNNY S. RABADILLA, petitioner, vs. surnamed Rabadilla.
COURT OF APPEALS AND MARIA
MARLENA COSCOLUELLA Y BELLEZA On August 21, 1989, Maria Marlena Coscolluela y Belleza Villacarlos
VILLACARLOS, respondents. brought a complaint, docketed as Civil Case No. 5588, before Branch
52 of the Regional Trial Court in Bacolod City, against the above-
DECISION mentioned heirs of Dr. Jorge Rabadilla, to enforce the provisions of
PURISIMA, J.: subject Codicil. The Complaint alleged that the defendant-heirs
violated the conditions of the Codicil, in that:
This is a petition for review of the decision of the Court of 1. Lot No. 1392 was mortgaged to the Philippine National
Appeals,3 dated December 23, 1993, in CA-G.R. No. CV-35555, Bank and the Republic Planters Bank in disregard of the
which set aside the decision of Branch 52 of the Regional Trial Court testatrix's specific instruction to sell, lease, or mortgage only
in Bacolod City, and ordered the defendants-appellees (including to the near descendants and sister of the testatrix.
herein petitioner), as heirs of Dr. Jorge Rabadilla, to reconvey title 2. Defendant-heirs failed to comply with their obligation to
over Lot No. 1392, together with its fruits and interests, to the estate deliver one hundred (100) piculs of sugar (75 piculs export
of Aleja Belleza. sugar and 25 piculs domestic sugar) to plaintiff Maria
Marlena Coscolluela y Belleza from sugar crop years 1985
The antecedent facts are as follows: up to the filing of the complaint as mandated by the Codicil,
despite repeated demands for compliance.
In a Codicil appended to the Last Will and Testament of testatrix Aleja 3. The banks failed to comply with the 6th paragraph of the
Belleza, Dr. Jorge Rabadilla, predecessor-in-interest of the herein Codicil which provided that in case of the sale, lease, or
petitioner, Johnny S. Rabadilla, was instituted as a devisee of 511, 855 mortgage of the property, the buyer, lessee, or mortgagee
square meters of that parcel of land surveyed as Lot No. 1392 of the shall likewise have the obligation to deliver 100 piculs of
Bacolod Cadastre. The said Codicil, which was duly probated and sugar per crop year to herein private respondent.
admitted in Special Proceedings No. 4046 before the then Court of
First Instance of Negros Occidental, contained the following The plaintiff then prayed that judgment be rendered ordering
provisions: defendant-heirs to reconvey/return-Lot No. 1392 to the surviving heirs
of the late Aleja Belleza, the cancellation of TCT No. 44498 in the
"FIRST name of the deceased, Dr. Jorge Rabadilla, and the issuance of a new
I give, leave and bequeath the following property owned by me to Dr. certificate of title in the names of the surviving heirs of the late Aleja
Jorge Rabadilla resident of 141 P. Villanueva, Pasay City: Belleza.
(a) Lot No. 1392 of the Bacolod Cadastre, covered by
Transfer Certificate of Title No. RT-4002 (10942), which is On February 26, 1990, the defendant-heirs were declared in default but
registered in my name according to the records of the on March 28, 1990 the Order of Default was lifted, with respect to
Register of Deeds of Negros Occidental. defendant Johnny S. Rabadilla, who filed his Answer, accordingly.
(b) That should Jorge Rabadilla die ahead of me, the
aforementioned property and the rights which I shall set During the pre-trial, the parties admitted that:
forth hereinbelow, shall be inherited and acknowledged by
the children and spouse of Jorge Rabadilla. On November 15, 1998, the plaintiff (private respondent) and a certain
xxx Alan Azurin, son-in-law of the herein petitioner who was lessee of the
FOURTH property and acting as attorney-in-fact of defendant-heirs, arrived at an
(a)....It is also my command, in this my addition (Codicil), that should amicable settlement and entered into a Memorandum of Agreement on
I die and Jorge Rabadilla shall have already received the ownership of the obligation to deliver one hundred piculs of sugar, to the following
the said Lot No. 1392 of the Bacolod Cadastre, covered by Transfer effect:
Certificate of Title No. RT-4002 (10942), and also at the time that the
lease of Balbinito G. Guanzon of the said lot shall expire, Jorge "That for crop year 1988-89, the annuity mentioned in Entry No. 49074
Rabadilla shall have the obligation until he dies, every year to give to of TCT No. 44489 will be delivered not later than January of 1989,
Maria Marlina Coscolluela y Belleza, Seventy (75) (sic) piculs of more specifically, to wit:
Export sugar and Twenty Five (25) piculs of Domestic sugar, until the
said Maria Marlina Coscolluela y Belleza dies. 75 piculs of 'A' sugar, and 25 piculs of 'B' sugar, or then existing in any
of our names, Mary Rose Rabadilla y Azurin or Alan Azurin, during
FIFTH December of each sugar crop year, in Azucar Sugar Central; and, this
(a) Should Jorge Rabadilla die, his heir to whom he shall give Lot No. is considered compliance of the annuity as mentioned, and in the same
1392 of the Bacolod Cadastre, covered by Transfer Certificate of Title manner will compliance of the annuity be in the next succeeding crop
No. RT-4002 (10492), shall have the obligation to still give yearly, the years.
sugar as specified in the Fourth paragraph of his testament, to Maria
Marlina Coscolluela y Belleza on the month of December of each year. That the annuity above stated for crop year 1985-86, 1986-87, and
1987-88, will be complied in cash equivalent of the number of piculs
SIXTH as mentioned therein and which is as herein agreed upon, taking into
I command, in this my addition (Codicil) that the Lot No. 1392, in the consideration the composite price of sugar during each sugar crop year,
event that the one to whom I have left and bequeathed, and his heir which is in the total amount of ONE HUNDRED FIVE THOUSAND
shall later sell, lease, mortgage this said Lot, the buyer, lessee, PESOS (P105,000.00).
mortgagee, shall have also the obligation to respect and deliver yearly
ONE HUNDRED (100) piculs of sugar to Maria Marlina Coscolluela That the above-mentioned amount will be paid or delivered on a
y Belleza, on each month of December, SEVENTY FIVE (75) piculs staggered cash installment, payable on or before the end of December
of Export and TWENTY FIVE (25) piculs of Domestic, until Maria of every sugar crop year, to wit:
Marlina shall die, lastly should the buyer, lessee or the mortgagee of
this lot, not have respected my command in this my addition (Codicil), For 1985-86, TWENTY SIX THOUSAND TWO HUNDRED FIFTY
Maria Marlina Coscolluela y Belleza, shall immediately seize this Lot (P26,250.00) Pesos, payable on or before December of crop year 1988-
No. 1392 from my heir and the latter's heirs, and shall turn it over to 89;
my near desendants, (sic) and the latter shall then have the obligation For 1986-87, TWENTY SIX THOUSAND TWO HUNDRED FIFTY
to give the ONE HUNDRED (100) piculs of sugar until Maria Marlina (P26,250.00) Pesos, payable on or before December of crop year 1989-
shall die. I further command in this my addition (Codicil) that my heir 90;
and his heirs of this Lot No. 1392, that they will obey and follow that For 1987-88, TWENTY SIX THOUSAND TWO HUNDRED FIFTY
should they decide to sell, lease, mortgage, they cannot negotiate with (P26,250.00) Pesos, payable on or before December of crop year 1990-
others than my near descendants and my sister."4 91; and
For 1988-89, TWENTY SIX THOUSAND TWO HUNDRED FIFTY
Pursuant to the same Codicil, Lot No. 1392 was transferred to the (P26,250.00) Pesos, payable on or before December of crop year 1991-
deceased, Dr. Jorge Rabadilla, and Transfer Certificate of Title No. 92."5
44498 thereto issued in his name.

8
However, there was no compliance with the aforesaid Memorandum The Court of Appeals found that the private respondent had a cause of
of Agreement except for a partial delivery of 50.80 piculs of sugar action against the petitioner. The disquisition made on modal
corresponding to sugar crop year 1988 -1989. institution was, precisely, to stress that the private respondent had a
legally demandable right against the petitioner pursuant to subject
On July 22, 1991, the Regional Trial Court came out with a decision, Codicil; on which issue the Court of Appeals ruled in accordance with
dismissing the complaint and disposing as follows: law.

"WHEREFORE, in the light of the aforegoing findings, the Court finds It is a general rule under the law on succession that successional rights
that the action is prematurely filed as no cause of action against the are transmitted from the moment of death of the decedent10 and
defendants has as yet arose in favor of plaintiff. While there maybe the compulsory heirs are called to succeed by operation of law. The
non-performance of the command as mandated exaction from them legitimate children and descendants, in relation to their legitimate
simply because they are the children of Jorge Rabadilla, the title parents, and the widow or widower, are compulsory heirs.11 Thus, the
holder/owner of the lot in question, does not warrant the filing of the petitioner, his mother and sisters, as compulsory heirs of the instituted
present complaint. The remedy at bar must fall. Incidentally, being in heir, Dr. Jorge Rabadilla, succeeded the latter by operation of law,
the category as creditor of the left estate, it is opined that plaintiff may without need of further proceedings, and the successional rights were
initiate the intestate proceedings, if only to establish the heirs of Jorge transmitted to them from the moment of death of the decedent, Dr.
Rabadilla and in order to give full meaning and semblance to her claim Jorge Rabadilla.
under the Codicil.
Under Article 776 of the New Civil Code, inheritance includes all the
In the light of the aforegoing findings, the Complaint being property, rights and obligations of a person, not extinguished by his
prematurely filed is DISMISSED without prejudice. death. Conformably, whatever rights Dr. Jorge Rabadilla had by virtue
SO ORDERED."6 of subject Codicil were transmitted to his forced heirs, at the time of
his death. And since obligations not extinguished by death also form
On appeal by plaintiff, the First Division of the Court of Appeals part of the estate of the decedent; corollarily, the obligations imposed
reversed the decision of the trial court; ratiocinating and ordering thus: by the Codicil on the deceased Dr. Jorge Rabadilla, were likewise
transmitted to his compulsory heirs upon his death.
"Therefore, the evidence on record having established plaintiff-
appellant's right to receive 100 piculs of sugar annually out of the In the said Codicil, testatrix Aleja Belleza devised Lot No. 1392 to Dr.
produce of Lot No. 1392; defendants-appellee's obligation under Aleja Jorge Rabadilla, subject to the condition that the usufruct thereof
Belleza's codicil, as heirs of the modal heir, Jorge Rabadilla, to deliver would be delivered to the herein private respondent every year. Upon
such amount of sugar to plaintiff-appellant; defendants-appellee's the death of Dr. Jorge Rabadilla, his compulsory heirs succeeded to his
admitted non-compliance with said obligation since 1985; and, the rights and title over the said property, and they also assumed his
punitive consequences enjoined by both the codicil and the Civil Code, (decedent's) obligation to deliver the fruits of the lot involved to herein
of seizure of Lot No. 1392 and its reversion to the estate of Aleja private respondent. Such obligation of the instituted heir reciprocally
Belleza in case of such non-compliance, this Court deems it proper to corresponds to the right of private respondent over the usufruct, the
order the reconveyance of title over Lot No. 1392 from the estates of fulfillment or performance of which is now being demanded by the
Jorge Rabadilla to the estate of Aleja Belleza. However, plaintiff- latter through the institution of the case at bar. Therefore, private
appellant must institute separate proceedings to re-open Aleja respondent has a cause of action against petitioner and the trial court
Belleza's estate, secure the appointment of an administrator, and erred in dismissing the complaint below.
distribute Lot No. 1392 to Aleja Belleza's legal heirs in order to enforce
her right, reserved to her by the codicil, to receive her legacy of 100 Petitioner also theorizes that Article 882 of the New Civil Code on
piculs of sugar per year out of the produce of Lot No. 1392 until she modal institutions is not applicable because what the testatrix intended
dies. was a substitution - Dr. Jorge Rabadilla was to be substituted by the
testatrix's near descendants should there be noncompliance with the
Accordingly, the decision appealed from is SET ASIDE and another obligation to deliver the piculs of sugar to private respondent.
one entered ordering defendants-appellees, as heirs of Jorge Rabadilla,
to reconvey title over Lot No. 1392, together with its fruits and Again, the contention is without merit.
interests, to the estate of Aleja Belleza.
SO ORDERED."7 Substitution is the designation by the testator of a person or persons to
take the place of the heir or heirs first instituted. Under substitutions in
Dissatisfied with the aforesaid disposition by the Court of Appeals, general, the testator may either (1) provide for the designation of
petitioner found his way to this Court via the present petition, another heir to whom the property shall pass in case the original heir
contending that the Court of Appeals erred in ordering the reversion of should die before him/her, renounce the inheritance or be incapacitated
Lot 1392 to the estate of the testatrix Aleja Belleza on the basis of to inherit, as in a simple substitution,12 or (2) leave his/her property to
paragraph 6 of the Codicil, and in ruling that the testamentary one person with the express charge that it be transmitted subsequently
institution of Dr. Jorge Rabadilla is a modal institution within the to another or others, as in a fideicommissary substitution.13 The
purview of Article 882 of the New Civil Code. Codicil sued upon contemplates neither of the two.

The petition is not impressed with merit. In simple substitutions, the second heir takes the inheritance in default
of the first heir by reason of incapacity, predecease or
Petitioner contends that the Court of Appeals erred in resolving the renunciation.14 In the case under consideration, the provisions of
appeal in accordance with Article 882 of the New Civil Code on modal subject Codicil do not provide that should Dr. Jorge Rabadilla default
institutions and in deviating from the sole issue raised which is the due to predecease, incapacity or renunciation, the testatrix's near
absence or prematurity of the cause of action. Petitioner maintains that descendants would substitute him. What the Codicil provides is that,
Article 882 does not find application as there was no modal institution should Dr. Jorge Rabadilla or his heirs not fulfill the conditions
and the testatrix intended a mere simple substitution - i.e. the instituted imposed in the Codicil, the property referred to shall be seized and
heir, Dr. Jorge Rabadilla, was to be substituted by the testatrix's "near turned over to the testatrix's near descendants.
descendants" should the obligation to deliver the fruits to herein private
respondent be not complied with. And since the testatrix died single Neither is there a fideicommissary substitution here and on this point,
and without issue, there can be no valid substitution and such petitioner is correct. In a fideicommissary substitution, the first heir is
testamentary provision cannot be given any effect. strictly mandated to preserve the property and to transmit the same
later to the second heir.15 In the case under consideration, the instituted
The petitioner theorizes further that there can be no valid substitution heir is in fact allowed under the Codicil to alienate the property
for the reason that the substituted heirs are not definite, as the provided the negotiation is with the near descendants or the sister of
substituted heirs are merely referred to as "near descendants" without the testatrix. Thus, a very important element of a fideicommissary
a definite identity or reference as to who are the "near descendants" substitution is lacking; the obligation clearly imposing upon the first
and therefore, under Articles 8438 and 8459 of the New Civil Code, the heir the preservation of the property and its transmission to the second
substitution should be deemed as not written. heir. "Without this obligation to preserve clearly imposed by the
testator in his will, there is no fideicommissary substitution."16 Also,
The contentions of petitioner are untenable. Contrary to his supposition the near descendants' right to inherit from the testatrix is not definite.
that the Court of Appeals deviated from the issue posed before it, The property will only pass to them should Dr. Jorge Rabadilla or his
which was the propriety of the dismissal of the complaint on the heirs not fulfill the obligation to deliver part of the usufruct to private
ground of prematurity of cause of action, there was no such deviation. respondent.

9
the sugar is not respected, Marlena Belleza Coscuella shall seize the
Another important element of a fideicommissary substitution is also property and turn it over to the testatrix's near descendants. The non-
missing here. Under Article 863, the second heir or the performance of the said obligation is thus with the sanction of seizure
fideicommissary to whom the property is transmitted must not be of the property and reversion thereof to the testatrix's near descendants.
beyond one degree from the first heir or the fiduciary. A Since the said obligation is clearly imposed by the testatrix, not only
fideicommissary substitution is therefore, void if the first heir is not on the instituted heir but also on his successors-in-interest, the sanction
related by first degree to the second heir.17 In the case under scrutiny, imposed by the testatrix in case of non-fulfillment of said obligation
the near descendants are not at all related to the instituted heir, Dr. should equally apply to the instituted heir and his successors-in-
Jorge Rabadilla. interest.

The Court of Appeals erred not in ruling that the institution of Dr. Jorge Similarly unsustainable is petitioner's submission that by virtue of the
Rabadilla under subject Codicil is in the nature of a modal institution amicable settlement, the said obligation imposed by the Codicil has
and therefore, Article 882 of the New Civil Code is the provision of been assumed by the lessee, and whatever obligation petitioner had
law in point. Articles 882 and 883 of the New Civil Code provide: become the obligation of the lessee; that petitioner is deemed to have
made a substantial and constructive compliance of his obligation
Art. 882. The statement of the object of the institution or the through the consummated settlement between the lessee and the
application of the property left by the testator, or the charge imposed private respondent, and having consummated a settlement with the
on him, shall not be considered as a condition unless it appears that petitioner, the recourse of the private respondent is the fulfillment of
such was his intention. the obligation under the amicable settlement and not the seizure of
subject property.
That which has been left in this manner may be claimed at once
provided that the instituted heir or his heirs give security for Suffice it to state that a Will is a personal, solemn, revocable and free
compliance with the wishes of the testator and for the return of act by which a person disposes of his property, to take effect after his
anything he or they may receive, together with its fruits and interests, death.25 Since the Will expresses the manner in which a person intends
if he or they should disregard this obligation. how his properties be disposed, the wishes and desires of the testator
must be strictly followed. Thus, a Will cannot be the subject of a
Art. 883. When without the fault of the heir, an institution referred to compromise agreement which would thereby defeat the very purpose
in the preceding article cannot take effect in the exact manner stated of making a Will.
by the testator, it shall be complied with in a manner most analogous
to and in conformity with his wishes. WHEREFORE, the petition is hereby DISMISSED and the decision
of the Court of Appeals, dated December 23, 1993, in CA-G.R. No.
The institution of an heir in the manner prescribed in Article 882 is CV-35555 AFFIRMED. No pronouncement as to costs. SO
what is known in the law of succession as an institucion sub modo or ORDERED.
a modal institution. In a modal institution, the testator states (1) the
object of the institution, (2) the purpose or application of the property G.R. No. L-15737 February 28, 1962
left by the testator, or (3) the charge imposed by the testator upon the
heir.18 A "mode" imposes an obligation upon the heir or legatee but it LEONOR VILLAFLOR VDA. DE VILLANUEVA, plaintiff-
does not affect the efficacy of his rights to the succession. 19 On the appellant, vs.
other hand, in a conditional testamentary disposition, the condition DELFIN N. JUICO, in his capacity as Judicial Administrator of
must happen or be fulfilled in order for the heir to be entitled to succeed the testate estate of FAUSTA NEPOMUCENO, defendant-
the testator. The condition suspends but does not obligate; and the appellee.
mode obligates but does not suspend.20 To some extent, it is similar to
a resolutory condition.21 REYES, J.B.L., J.:
From the provisions of the Codicil litigated upon, it can be gleaned Subject to this direct appeal to us on points of law is the decision of
unerringly that the testatrix intended that subject property be inherited the Court of First Instance of Rizal, in its Civil Case No. Q-2809,
by Dr. Jorge Rabadilla. It is likewise clearly worded that the testatrix dismissing plaintiff-appellant's complaint for the recovery of certain
imposed an obligation on the said instituted heir and his successors-in- properties that were originally owned by the plaintiff's granduncle,
interest to deliver one hundred piculs of sugar to the herein private Nicolas Villaflor, and which he granted to his widow, Doa Fausta
respondent, Marlena Coscolluela Belleza, during the lifetime of the Nepomuceno, bequeathing to her "su uso y posesion mientras viva y
latter. However, the testatrix did not make Dr. Jorge Rabadilla's no se case en segundas nupcias".
inheritance and the effectivity of his institution as a devisee, dependent
on the performance of the said obligation. It is clear, though, that The following facts appear of record: On October 9, 1908, Don Nicolas
should the obligation be not complied with, the property shall be turned Villaflor, a wealthy man of Castillejos, Zambales, executed a will in
over to the testatrix's near descendants. The manner of institution of Spanish in his own handwriting, devising and bequeathing in favor of
Dr. Jorge Rabadilla under subject Codicil is evidently modal in nature his wife, Dona Fausta Nepomuceno, one-half of all his real and
because it imposes a charge upon the instituted heir without, however, personal properties, giving the other half to his brother Don Fausto
affecting the efficacy of such institution. Villaflor.
Then too, since testamentary dispositions are generally acts of Clause 6th, containing the institution of heirs, reads as follows:
liberality, an obligation imposed upon the heir should not be SEXTO En virtud de las facultades que me conceden las
considered a condition unless it clearly appears from the Will itself that leyes, instituyo per mis unicos y universales herederos de
such was the intention of the testator. In case of doubt, the institution todos mis derechos y acciones a mi hermano D. Fausto
should be considered as modal and not conditional.22 Villaflor y a mi esposa Da. Fausta Nepomuceno para que
partan todos mis bienes que me pertenescan, en iguales
Neither is there tenability in the other contention of petitioner that the partes, para despues de mi muerte, exceptuando las
private respondent has only a right of usufruct but not the right to seize donaciones y legados que, abajo mi mas expontanea
the property itself from the instituted heir because the right to seize voluntad, lo hago en la forma siguiente: .
was expressly limited to violations by the buyer, lessee or mortgagee. SEPTIMO: Lego para dispues de mi muerte a mi esposa
Da. Fausta Nepomuceno, en prueba de mi amor y carino, los
In the interpretation of Wills, when an uncertainty arises on the face of bienes, alhajas y muebles que a continuacion se expresan; .
the Will, as to the application of any of its provisions, the testator's OCTAVO: Que estos legades disfrutaria mi referida
intention is to be ascertained from the words of the Will, taking into esposa Da. Fausta Nepomuceno su uso y posesion mientras
consideration the circumstances under which it was made.23 Such viva y no se case en segundas nupcias, de la contrario, pasara
construction as will sustain and uphold the Will in all its parts must be a ser propiedad estos dichos legados de mi sobrina nieta
adopted.24 Leonor Villaflor.
Subject Codicil provides that the instituted heir is under obligation to The 12th clause of the will provided, however, that Clauses 6th and
deliver One Hundred (100) piculs of sugar yearly to Marlena Belleza 7th thereof would be deemed annulled from the moment he bore any
Coscuella. Such obligation is imposed on the instituted heir, Dr. Jorge child with Doa Fausta Nepomuceno. Said Clause 12th reads as
Rabadilla, his heirs, and their buyer, lessee, or mortgagee should they follows: .
sell, lease, mortgage or otherwise negotiate the property involved. The DUODECIMO: Quedan anulados las parrafos 6.0 y 7.0
Codicil further provides that in the event that the obligation to deliver de este testamento que tratan de institucion de herederos y
10
los legados que se haran despues de mi muerte a favor de mi SEC. 59. Instrument construed so as to give effect to all
esposa, en el momento que podre tener la dicha de contrar provisions. In the construction of an instrument where
con hijo y hijos legitimos o legitimados, pues estos, there are several provisions or particulars, such a
conforme a ley seran mis herederos. construction is, if possible, to be adopted as will give effect
to all." .
Don Nicolas Villaflor died on March 3, 1922, without begetting any
child with his wife Doa Fausta Nepomuceno. The latter, already a Speculation as to the motives of the testator in imposing the conditions
widow, thereupon instituted Special Proceeding No. 203 of the Court contained in clause 7 of his testament should not be allowed to obscure
of First Instance of Zambales, for the settlement of her husband's estate the clear and unambiguous meaning of his plain words, which are over
and in that proceeding, she was appointed judicial administratrix. In the primary source in ascertaining his intent. It is well to note that if
due course of administration, she submitted a project of partition, now the testator had intended to impose as sole condition the non-
Exhibit "E". In the order of November 24, 1924, now exhibit "C", the remarriage of his widow, the words "uso y posesion mientras viva"
probate court approved the project of partition and declared the would have been unnecessary, since the widow could only remarry
proceeding closed. As the project of partition, Exhibit "E", now shows during her own lifetime.
Doa Fausta Nepomuceno received by virtue thereof the ownership
and possession of a considerable amount of real and personal estate. The Civil Code, in Article 790, p. 1 (Article 675 of the Code of 1889),
By virtue also of the said project of partition, she received the use and expressly enjoins the following: .
possession of all the real and personal properties mentioned and ART. 790. The words of a will are to be taken in their
referred to in Clause 7th of the will. The order approving the project of ordinary and grammatical sense, unless a clear intention to
partition (Exh. "C"), however, expressly provided that approval use them in another sense can be gathered, and that other can
thereof was "sin perjuicio de lo dispuesto en la clausula 8.o del be ascertained." .
testamento de Nicolas Villaflor." . Technical words in a will are to be taken in their technical
sense, unless the context clearly indicates a contrary
On May 1, 1956, Doa Fausta Nepomuceno died without having intention, or unless it satisfactorily appears that the will was
contracted a second marriage, and without having begotten any child drawn solely by the testator, and that he was unacquainted
with the deceased Nicolas Villaflor. Her estate is now being settled in with such technical sense. (675a)
Special Proceeding No. Q-1563 in the lower court, with the defendant
Delfin N. Juico as the duly appointed and qualified judicial In consonance with this rule, this Supreme Court has laid the doctrine
administrator. in In re Estate of Calderon, 26 Phil., 233, that the intention and wishes
of the testator, when clearly expressed in his will, constitute the fixed
The plaintiff Leonor Villaflor Vda. de Villanueva is admitted to be the law of interpretation, and all questions raised at the trial, relative to its
same Leonor Villaflor mentioned by Don Nicolas Villaflor in his will execution and fulfillment, must be settled in accordance therewith,
as his "sobrina nieta Leonor Villaflor". following the plain and literal meaning of the testator's words, unless
it clearly appears that his intention was otherwise. The same rule is
Plaintiff Leonor Villaflor instituted the present action against the adopted by the Supreme Court of Spain (TS. Sent. 20 Marzo 1918; 28
administrator of the estate of the widow Fausta Nepomuceno, on Mayo 1918; 30 Abril 1913; 16 Enero 1915; 23 Oct. 1925).
February 8, 1958, contending that upon the widow's death, said La voluntad del testador, clara, precisa y constantemente
plaintiff became vested with the ownership of the real and personal expresada al ordenar su ultimo voluntad, es ley unica,
properties bequeathed by the late Nicolas Villaflor to clause 7 of his imperativa y obligatoria que han de obedecer y cumplir
will, pursuant to its eight (8th) clause. Defendant's position, adopted fieldmente albaceas, legatarios y heredera, hoy sus
by the trial court, is that the title to the properties aforesaid became sucesores, sin que esa voluntad patente, que no ha menester
absolutely vested in the widow upon her death, on account of the fact de interpretaciones, pues no ofrece la menor duda, pueda
that she never remarried. sustituirse, pues no ofrece la menor duda, pueda sustituirse
por ningun otro criterio de alguna de los interesados, ni
We agree with appellant that the plain desire and intent of the testator, tampoco por el judicial. (Tribunal Supremo of Spain, Sent.
as manifested in clause 8 of his testament, was to invest his widow 20 March 1918) .
with only a usufruct or life tenure in the properties described in the
seventh clause, subject to the further condition (admitted by the The American decisions invoked by appellee in his brief inapplicable,
appellee) that if the widow remarried, her rights would thereupon because they involve cases where the only condition imposed on the
cease, even during her own lifetime. That the widow was meant to have legatee was that she should remain a widow. As already shown, the
no more than a life interest in those properties, even if she did not testament of Don Nicolas Villaflor clearly and unmistakably provided
remarry at all, is evident from the expressions used by the deceased that his widow should have the possession and use of the legacies while
"uso y posesion mientras viva" (use and possession while alive) in alive and did not remarry. It necessarily follows that by the express
which the first half of the phrase "uso y posesion" instead of "dominio" provisions of the 8th clause of his will, the legacies should pass to the
or "propiedad") reinforces the second ("mientras viva"). The testator testator's "sobrinanieta", appellant herein, upon the widow's death,
plainly did not give his widow the full ownership of these particular even if the widow never remarried in her lifetime. Consequently, the
properties, but only the right to their possession and use (or enjoyment) widow had no right to retain or dispose of the aforesaid properties, and
during her lifetime. This is in contrast with the remainder of the estate her estate is accountable to the reversionary legatee for their return,
in which she was instituted universal heir together with the testator's unless they had been lost due to fortuitous event, or for their value
brother (clause 6). 1wph1.t should rights of innocent third parties have intervened.
SEXTO: En virtud de las facultades que me conceden las
leyes, instituyo por mis unicos y universales herederos de PREMISES CONSIDERED, the decision appealed from is reversed,
todos mis derechos y acciones a mi hermano D. Fausto and the appellant Leonor Villaflor Vda. de VILLANUEVA is declared
Villaflor y a mi esposa Da. Fausta Nepomuceno para que entitled to the ownership and fruits of the properties described in clause
parten todos mis bienes que me pertenescan, en iguales 7 of the will or testament, from the date of the death of Doa Fausta
partes, para despues de mi muerte, exceptuando las Nepomuceno. The records are ordered remanded to the court of origin
donaciones y legados que, abajo mi mas expontanea for liquidation, accounting and further proceedings conformably to this
voluntad, lo hago en la forma siguiente. decision. Costs against the Administrator-appellee.

The court below, in holding that the appellant Leonor Villaflor, as G.R. No. L-7188 August 9, 1954
reversionary legatee, could succeed to the properties bequeathed by
clause 7 of the testament only in the event that the widow remarried, In re: Will and Testament of the deceased REVEREND
has unwarrantedly discarded the expression "mientras viva," and SANCHO ABADIA.
considered the words "uso y posesion" as equivalent to "dominio"
(ownership). In so doing, the trial court violated Article 791 of the SEVERINA A. VDA. DE ENRIQUEZ, ET AL., petitioners-
Civil Code of the Philippines, as well as section 59 of Rule 123 of the appellees, vs. MIGUEL ABADIA, ET AL., oppositors-appellants.
Rules of Court.
ART. 791. The words of a will are to receive an MONTEMAYOR, J.:
interpretation which will give to every expression some
effect, rather than one which will render any of the On September 6, 1923, Father Sancho Abadia, parish priest of Talisay,
expressions inoperative; and of two modes of interpreting a Cebu, executed a document purporting to be his Last Will and
will, that one is to be preferred which will prevent intestacy." Testament now marked Exhibit "A". Resident of the City of Cebu, he
. died on January 14, 1943, in the municipality of Aloguinsan, Cebu,
11
where he was an evacuee. He left properties estimated at P8,000 in given solemn expression at the time the will is executed, and in reality,
value. On October 2, 1946, one Andres Enriquez, one of the legatees the legacy or bequest then becomes a completed act. This ruling has
in Exhibit "A", filed a petition for its probate in the Court of First been laid down by this court in the case of In re Will of Riosa, 39 Phil.,
Instance of Cebu. Some cousins and nephews who would inherit the 23. It is a wholesome doctrine and should be followed.
estate of the deceased if he left no will, filed opposition.
Of course, there is the view that the intention of the testator should be
During the hearing one of the attesting witnesses, the other two being the ruling and controlling factor and that all adequate remedies and
dead, testified without contradiction that in his presence and in the interpretations should be resorted to in order to carry out said intention,
presence of his co-witnesses, Father Sancho wrote out in longhand and that when statutes passed after the execution of the will and after
Exhibit "A" in Spanish which the testator spoke and understood; that the death of the testator lessen the formalities required by law for the
he (testator) signed on he left hand margin of the front page of each of execution of wills, said subsequent statutes should be applied so as to
the three folios or sheets of which the document is composed, and validate wills defectively executed according to the law in force at the
numbered the same with Arabic numerals, and finally signed his name time of execution. However, we should not forget that from the day of
at the end of his writing at the last page, all this, in the presence of the the death of the testator, if he leaves a will, the title of the legatees and
three attesting witnesses after telling that it was his last will and that devisees under it becomes a vested right, protected under the due
the said three witnesses signed their names on the last page after the process clause of the constitution against a subsequent change in the
attestation clause in his presence and in the presence of each other. The statute adding new legal requirements of execution of wills which
oppositors did not submit any evidence. would invalidate such a will. By parity of reasoning, when one
executes a will which is invalid for failure to observe and follow the
The learned trial court found and declared Exhibit "A" to be a legal requirements at the time of its execution then upon his death he
holographic will; that it was in the handwriting of the testator and that should be regarded and declared as having died intestate, and his heirs
although at the time it was executed and at the time of the testator's will then inherit by intestate succession, and no subsequent law with
death, holographic wills were not permitted by law still, because at the more liberal requirements or which dispenses with such requirements
time of the hearing and when the case was to be decided the new Civil as to execution should be allowed to validate a defective will and
Code was already in force, which Code permitted the execution of thereby divest the heirs of their vested rights in the estate by intestate
holographic wills, under a liberal view, and to carry out the intention succession. The general rule is that the Legislature can not validate
of the testator which according to the trial court is the controlling factor void wills (57 Am. Jur., Wills, Sec. 231, pp. 192-193).
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 In view of the foregoing, the order appealed from is reversed, and
and Testament of Father Sancho Abadia. The oppositors are appealing Exhibit "A" is denied probate. With costs.
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. G.R. No. L-5064 February 27, 1953
The new Civil Code (Republic Act No. 386) under article 810 thereof BIENVENIDO A. IBARLE, plaintiff-appellant, vs.
provides that a person may execute a holographic will which must be ESPERANZA M. PO, defendant-appellant.
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 TUASON, J.:
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 This action commenced in the Court of First Instance of Cebu to annul
certain requirements for the execution of wills, such as numbering a deed of sale conveying to the defendant, in consideration of P1,700,
correlatively each page (not folio or sheet) in letters and signing on the one undivided half of a parcel of land which previously had been sold,
left hand margin by the testator and by the three attesting witnesses, along with the other half, by the same vendor to the plaintiff's grantors.
requirements which were not complied with in Exhibit "A" because Judgment was against the plaintiff.
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 The case was submitted for decision upon an agreed statement of facts,
front pages, they were signed only by the testator. the pertinent parts of which are thus summarized in the appealed
decision:
Interpreting and applying this requirement this Court in the case of In 1st. That Leonard j. Winstanley and Catalina Navarro
re Estate of Saguinsin, 41 Phil., 875, 879, referring to the failure of the were husband and wife, the former having died on June 6,
testator and his witnesses to sign on the left hand margin of every page, 1946 leaving heir the surviving spouse and some minor
said: children;
. . . . This defect is radical and totally vitiates the testament. 2nd. hat upon the death of L.J. Winstanley, he left a parcel
It is not enough that the signatures guaranteeing authenticity of land described under Transfer Certificate of title No. 2391
should appear upon two folios or leaves; three pages having of the Registry of Deeds of the Province of Cebu;
been written on, the authenticity of all three of them should 3rd. That the above mentioned property was a conjugal
be guaranteed by the signature of the alleged testatrix and property;
her witnesses. 4th. That on April 15, 1946, the surviving spouse Catalina
Navarro Vda. de Winstanley sold the entire parcel of land to
And in the case of Aspe vs. Prieto, 46 Phil., 700, referring to the same the spouses Maria Canoy, alleging among other things, that
requirement, this Court declared: she needed money for the support of her children;
From an examination of the document in question, it appears 5th. That on May 24, 1947, the spouses Maria Canoy and
that the left margins of the six pages of the document are Roberto Canoy sold the same parcel of land to the plaintiff
signed only by Ventura Prieto. The noncompliance with in this case named Bienvenido A. Ebarle;
section 2 of Act No. 2645 by the attesting witnesses who 6th. That the two deeds of sale referred to above were not
omitted to sign with the testator at the left margin of each of registered and have never been registered up to the date;
the five pages of the document alleged to be the will of 7th. That on January 17, 1948 surviving spouse Catalina
Ventura Prieto, is a fatal defect that constitutes an obstacle Navarro Vda. de Winstanley, after her appointment as
to its probate. guardian of her children by this court (Special proceeding
no. 212-R) sold one-half of the land mentioned above to
What is the law to apply to the probate of Exh. "A"? May we apply the Esperanza M. Po, defendant in the instant case, which
provisions of the new Civil Code which not allows holographic wills, portion belongs to the children of the above named spouses.
like Exhibit "A" which provisions were invoked by the appellee-
petitioner and applied by the lower court? But article 795 of this same As stated by the trial Judge, the sole question for determination is the
new Civil Code expressly provides: "The validity of a will as to its validity of the sale to Esperanza M. Po, the last purchaser. This
form depends upon the observance of the law in force at the time it is question in turn depends upon the validity of the prior ale to Maria
made." The above provision is but an expression or statement of the Canoy and Roberto Canoy.
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 Article 657 of the old Civil Code provides: "The rights to the
the supposed will is presented in court for probate or when the petition succession of a person are transmitted from the moment of his death."
is decided by the court but at the time the instrument was executed. in a slightly different language, this article is incorporated in the new
One reason in support of the rule is that although the will operates upon Civil Code as article 777.
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 Manresa, commending on article 657 of the Civil Code of Spain, says:
12
The moment of death is the determining factor when the from the clerk of court the sum of P690 corresponding to
heirs acquire a definite right to the inheritance, whether such reimbursement of the price paid by them for four-fifths (4/5)
right be pure or contingent. It is immaterial whether a short of the lot which their co-defendant Feliza Luz Paulino could
or long period of time lapses between the death of the legally convey; and the additional sum of P50 to cover their
predecessor and the entry into possession of the property of expenses in the preparation of the deed of sale;
the inheritance because the right is always deemed to be
retroactive from the moment of death. (5 Manresa, 317.) c. Ordering the defendants Maximo Dalaja, Juana Lucas,
Nemesio Lucas and Donata Guillermo to execute a deed of
The above provision and comment make it clear that when Catalina reconveyance of what they could legally buy from their co-
Navarro Vda. de Winstanley sold the entire parcel to the Canoy defendant Feliza Luz Paulino of the lot in question, in favor
spouses, one-half of it already belonged to the seller's children. No of the herein plaintiff; and
formal or judicial declaration being needed to confirm the children's
title, it follows that the first sale was null and void in so far as it d. Ordering the aforesaid defendants to pay damages in the sum
included the children's share. of P1,000 annually to plaintiff until the reconveyance is
effected, and an additional sum of P1,000 as damages to be
On the other hand, the sale to the defendant having been made by paid by all of the defendants for their malicious acts, and cost
authority of the competent court was undeniably legal and effective. of the suit.
The fact that it has not been recorded is of no consequence. If
registration were necessary, still the non-registration would not avail For such other remedies and relief just and equitable in the premises.
the plaintiff because it was due to no other cause than his own
opposition. On November 14, 1945, defendants answered the complaint with
counterclaim, which was amended on December 12 of the same year,
The decision will be affirmed subject to the reservation, made in said wherein it is alleged, among other things, that on April 25, 1937, at the
decision, of the right of the plaintitff and/or the Canoy spouses to bring municipality of Laoag, province of Ilocos Norte, all their inheritance
such action against Catalina Navarro Vda. de Winstanley as may be from the deceased Jaime Luz Paulino had been divided in accordance
appropriate for such damages as they may have incurred by reason of with Section 596 of the Code of Civil Procedure and the last verbal
the voiding of the sale in their favor. wish of the decedent before his death, giving the residential lot in
question together with the house of strong materials constructed
G.R. No. L-7385 May 19, 1955 thereon to Feliza Luz Paulino as her exclusive and only share, and
leaving her brothers, Timoteo, Esteban and Macario, and their nephew
QUIRICO L. SATURNINO, petitioner, vs. Quirino Saturnino to divide all the agricultural lands among
FELIZA LUZ PAULINO, MAXIMO DALEJA, JUANA LUCAS, themselves, which division was duly effected. Defendants Maximo
NEMESIO LUCAS, DONATA GUILLERMO, and COURT OF Daleja, Juana Lucas, Nemesio Lucas and Donata Guillermo allege that
APPEALS, respondents. they are engaged in business and purposely bought said lot to erect
thereon a "camarin' for a rice mill and for use as a warehouse of rice,
CONCEPCION, J.: "bagoong", coconuts and other articles of commerce and to deposit
logs and lumber, and that because of their inability to realize this plan
This is an appeal by certiorari from a decision of the Court of Appeals. due to action of the plaintiff, they will suffer damages in the sum of
The pertinent facts are: P3,000 yearly unit this case is terminated. Wherefore all the defendants
pray the court:
Upon the death of Jaime Luz Paulino, on February 10, 1937, he was 1. To dismiss the complaint;
survived by his children Timoteo Esteban, Macario and Feliza, all 2. To declare Feliza Luz Paulino as the exclusive owner of
surnamed Luz Paulino and a grandson-Quirico L. Saturnino, son of the whole lot in question;
his deceased daughter Antonia Luz Paulino. Among the properties left 3. To declare the sale made by Feliza Luz Paulino of the
by Jaime Luz Paulino is a house and lot, situated in Barrio No. 13, whole lot in question to her co-defendants valid in full force
municipality of Laoag, province of Ilocos Norte, and more particularly and effect;
known as Lot No. 11366 of the Laoag Cadastre. On October 22, 1945, 4. To order the plaintiff to pay three thousand pesos (P3,000)
his daughter Feliza Luz Paulino executed a deed of absolute sale of annually until this case is terminated and the further sum of
said property in favor of the spouses Maxima Daleja and Juana Lucas one thousand pesos (P1,000) for the malicious acts of the
and Nemesio Lucas and Donata Guillermo, for the aggregate sum of plaintiff and the costs of this suit; and
P1,200.00. In the language of a decision of the Court of Appeals. 5. Any other relief just and equitable. (Roll, pp. 17-20)

As said sale was made without the knowledge or consent of Quirino L. This case was docketed as Civil Case No. 23 of the Court of First
Saturnino who, according to him, learned of it in the early morning of Instance of Ilocos Norte.
October 23, 1945 (Exhs. B and I), and being desirous of exercising his
right of subrogation as co-heir of the vendor, on October 23, 1945, and Meanwhile, or on November 19, 1945, Quirino L. Saturnino had filed,
again on the 29th of the month, in the presence and with the assistance with said court, a petition, which was docketed as Special Proceeding
of his lawyer, offered verbally and in writing to the vendees to return Case No. 37, for the probate of the will and testament of Jaime Luz
then and there to them, in actual case, 4/5 of the purchase price of said Paulino. Although, at first, all of the other heirs objected to said
property, together with the expenses incurred by them in the petition, on June 30, 1949, they eventually withdrew their opposition
preparation of the document, and tendered to them in their respective thereto, and the probate of the will was allowed by an order dated July
houses in Laoag, Ilocos Norte, written copies of the offer and the 6, 1949. Said will provided that the property in dispute in Case No. 23,
money in actual cash, Philippine currency, but defendants Juana Lucas be distributed, share and share alike among the heirs of the testator.
and Donato Guillermo, for themselves and in representation of their On or about March 10, 1950, the defendant in said Case No. 23
respective husbands who were absent, refused acceptance thereof. For respondents herein filed a supplemental answer alleging the
this reason on the following day, October 30, 1945, Quirino L. plaintiff petitioner herein has no legal capacity to sue, because
Saturnino instituted this action in the Court of First Instance of Ilocos the property in litigation therein is part of the estate which is the subject
Norte against the defendants mentioned in the captain hereof, matter of Case No. 37, in which an administrator was appointed but no
depositing with the Clerk of said Court the sum of P960, Philippine adjudication had, as yet, been made. In due course, a decision was
currency, for delivery to the defendant vendees by way of rendered in Case No. 23, on December 2, 1950, the dispositive part of
reimbursement, together with the amount of P50 Philippine currency, which reads as follows:
to cover the expenses incurred in the preparation of the deed of sale, FOR ALL THE FOREGOING CONSIDERATIONS, the
and stating that he was ready and willing to deposit other additional Court renders judgment declaring the sale made by
sums that the court may deem just and necessary. On these averments defendant Feliza Luz Paulino to her co-defendants null and
plaintiff prayed in the omplaint that judgment be rendered in his favor void with respect to one-fifth (1/5) of the lot in question and
and against the defendants: the plaintiff is declared owner thereof as his undivided share;
that the defendants are ordered to receive from the Clerk of
a. Declaring the sale made by defendant Feliza Luz Paulino to Court the sum of P960 corresponding to the reimbursement
her co-defendants illegal with respect to one-fifth of the lot of the price paid by them for four-fifths (4/5) of the lot in
and to declare said one-fifth undivided share of the plaintiff; question which their co-defendant Feliza Luz Paulino could
legally convey to them, and to execute a deed of
b. To order the defendants Maximo Daleja, Juana Lucas, reconveyance in favor of the plaintiff. (Roll, pp. 20-21).
Nemesio Lucas and Donato Guillermo to accept and receive
13
On appeal from this decision, that defendants contended in the Court him for the purchase price, provided it be done within the
of Appeals, that the lower court had erred: period of one month, to be counted from the time they were
1. In not dismissing the complaint in so far as the recovery informed thereof. (Emphasis supplied.)
of one-fifth undivided interest in the lot in question is
concerned; With reference to the adjudication, which the Court of Appeals
2. In not finding that there was an agreement between the seemingly considers essential to the enjoyment of the right of
defendant Feliza Luz Paulino on one hand and Esteban, redemption among co-heirs, it should be noted that a property may be
Timoteo and Macario Luz Paulino on the other by virtue of adjudicated either to one heir only or to several heirs pro-indiviso. In
which the house and lot on question were given and the first case, the adjudication partakes, at the same time, of the nature
delivered to Feliza Luz Paulino; of a partition. Hence, if the property is sold by the heir to whom it was
3. In not finding the plaintiff-appellee fully confirmed the adjudicated, the other heirs are not entitled to redeem the property, for,
abovementioned agreement; as regards, the same, they are neither co-heirs nor co-owners. In the
4. In not upholding the validity of said agreement duly second case, the heirs to whom the property was adjudicated pro-
confirmed by the plaintiff-appellee and in not giving its indiviso are, thereafter, no longer co-heirs, but merely co-owners.
effects and efficacy; Consequently, neither may assert the right of redemption conferred to
5. In declaring the sale of the lot in question invalid with co-heirs, although, in proper cases, they may redeem as co-owners,
respect to one-fifth share of the appellee; under Article 1522 of the Civil Code of Spain (Article 1620, Civil
6. In holding that there exists co-ownership in the lot Code of the Philippines. Hence, commenting on said Article 1067,
between the appellee and appellants-purchasers; and Manresa says:
7. In ordering the appellants-purchaser to let redemption La venta del derecho hereditario ha de hacerse antes de que
prayed for by the appellee. (Roll, p. 21). sepractique la particion. Esto es evidente, porque despues al
derecho hereditario en abstracto sustituyen las cosas o
None of this questions was, however, decided by the Court of Appeals, derechos determinados comprendidos en la respectiva
which found it necessary to pass instead, upon what it regarded a adjudicacion, cesa la comunidad en la herencia, y podra
"prejudicial question." Said of the Court of Appeals: proceder otro retracto, mas no el retracto especiala que el art.
1067 se refiere. (7 Manresa [6th ed. Revised] p. 719.)
Before delving into the merits of the appeal, we have first to
pass upon a prejudicial question. There is no dispute in this Again, the house and lot involved in the case at bar are not in custodia
case that the properties left by the late Jaime Luz Paulino are legis. Said property was sold by Feliza Luz Paulino to Maximo Daleja,
in custodia legis, for they are subject to testate proceedings Juana Lucas, Nemesio Lucas and Donata Guillermo on October 22,
in said Civil Case No. 37 which is still pending in the Court 1945, or almost a month before Special Proceeding Case No. 37 was
of First Instance of Ilocos Norte. Although the will of the instituted (November 19, 1945). At that time, the buyers of said
testator had been allowed, no settlement of accounts has property were in possession thereof. They still held it when the judicial
been effected, no partition of the properties left by the administrator was appointed in Case No. 37, and this must have taken
decedent has been made, and the heirs have not legally place after the probate of the will on July 6, 1949 (Rule 78, section 4,
received or been adjudicated or assigned any particular piece Rule 79, sections 4 and 6, and Rule 80, section 5, Rules of Court). Up
of the mass of their inheritance. This being the case, and to the present, said buyers remain in possession of the property in
pending such partition, adjudication or assignment to the litigation. Neither the court, taking cognizance of Case No. 37, nor the
heirs of the residue of the estate of the testator Jaime Luz judicial administrator therein appointed, has even tried to divest them
Paulino, none of his heirs can properly allege or claim to of said possession. In fact, if they were as they are unwilling to yield
have inherited any portion of said residue, if there may be it and the administrator wished to take the property under his custody,
any, because of his or her right of inheritance remains to be it would be necessary for him to institute a separate civil action
in the nature of hope. Consequently, neither Feliza Luz therefor.
Paulino, nor any of her co-heirs, can legally represent the
estate of the decedent, or dispose as his or hers of the In view of the foregoing, and considering that the Court of Appeals has
property involved in this case, included as item No. 20 of the not passed upon the issues raised therein by respondents herein and
inventory (Exh. 4), or institute any case in court to demand that the decision of said court does not state the facts essential to the
any part of such estate as his own, or claim any right of legal determination of those issues, said decision is hereby reversed, and let
redemption as co-heir in the sale of any piece of the mass of the records of this case be remanded to the Court of Appeals for further
the inheritance that may have been disposed of by any of the proceedings, not inconsistent with this decision. Respondents, except
heirs. In the case at bar, even if it were true that by agreement the Court of Appeals, shall pay the costs of this instance. It is so
of the heirs the property involved herein had been assigned ordered.
to Feliza Luz Paulino as her share, that agreement and
subsequent sale are of no legal effect without the sanction or
approval of the court before which Civil Case No. 37 is G.R. No. L-46364 April 6, 1990
pending.
SULPICIA JIMENEZ and TORIBIO MATIAS, petitioners, vs.
The foregoing conclusion relieves Us from considering the VICENTE FERNANDEZ alias HOSPICIO FERNANDEZ and
other points raised in the present controversy. TEODORA GRADO, respondents.
WHEREFORE, the decision appealed from is hereby PARAS, J.:
reversed and the complaint dismissed, without
pronouncement as to costs. IT IS SO ORDERED. Before Us is a petition for review on certiorari of the following
Decision 1 and Resolution 2 of the Honorable Court of Appeals: (1)
The present petition for review by certiorari filed by Quirico L. Decision, dated March 1, 1977 in C.A.-G.R. No. 49178-R entitled
Saturnino, is directed against this decision of the Court of Appeals. It "Sulpicia Jimenez, et al., v. Vicente Fernandez, et al." affirming in
is clear, to our mind, that said petition must be granted. Pending toto the judgment of the Court of First Instance of Pangasinan, Third
"partition, adjudication or assignment to the heirs" of a deceased Judicial District in Civil Case No. 14802-I between the same parties
estator, their "right of inheritance" is not merely" in the nature of and (2) Resolution dated June 3, 1977 denying plaintiffs-appellants'
hope," for pursuant to Article 657 of the Civil Code of Spain, which motion for reconsideration.
was in force in the Philippines at the time of the death of Jaime Luz
Paulino "the rights to the succession of a person are transmitted As gathered from the records, the factual background of this case is as
from the moment of his death" and the heirs pursuant to Article 661 follows:
of the same Code "succeed to the deceased in all his rights and
obligations by the mere fact of his death." In other words, the person The land in question is the Eastern portion with an area of Four
concerned is an heir and he may exercise his rights as such, from the Hundred Thirty Six (436) square meters of that parcel of residential
very moment of the death of the decedent. One of those rights is that land situated in Barrio Dulig (now Magsaysay), Municipality of
of redemption under Article 1067 of the aforesaid code (Article 1088 Labrador, Pangasinan actually covered by Transfer Certificate of Title
of the Civil Code of the Philippines). What is more, this right of No. 82275 (Exhibit A) issued in the name of Sulpicia Jimenez.
redemption may be exercised only before partition, for said provision
declares explicitly: The entire parcel of land with an area of 2,932 square meters, formerly
If either of the heirs should sell his hereditary rights to a belonged to Fermin Jimenez. Fermin Jimenez has two (2) sons named
stranger before the partition, any or all of his co-heirs may Fortunato and Carlos Jimenez. This Fortunato Jimenez who
be subrogated to the rights of the purchaser by reimbursing predeceased his father has only one child, the petitioner Sulpicia
14
Jimenez. After the death of Fermin Jimenez, the entire parcel of land THE LOWER COURT ERRED IN NOT DECLARING
was registered under Act 496 in the name of Carlos Jimenez and THAT THE TITLE OF APPELLANT SULPICIA
Sulpicia Jimenez (uncle and niece) in equal shares pro-indiviso. As a JIMENEZ OVER THE LAND IN QUESTION CAN NOT
result of the registration case Original Certificate of Title No. 50933 BE DEFEATED BY THE ADVERSE OPEN AND
(Exhibit 8) was issued on February 28, 1933, in the names of Carlos NOTORIOUS POSSESSION OF APPELLEE TEODORA
Jimenez and Sulpicia Jimenez, in equal shares pro-indiviso. GRADO.

Carlos Jimenez died on July 9, 1936 and his illegitimate daughter, VI


Melecia Cayabyab, also known as Melecia Jimenez, took possession THE LOWER COURT ERRED IN DECLARING THAT
of the eastern portion of the property consisting of 436 square meters. THE APPELLEE TEODORA GRADO IS THE
ABSOLUTE OWNER OF THE LAND IN QUESTION IN
On January 20, 1944, Melecia Jimenez sold said 436 square meter- THE LIGHT OF THE DECISION OF THE SUPREME
portion of the property to Edilberto Cagampan and defendant Teodora COURT IN THE CASE OF LOURDES ARCUINO, ET
Grado executed a contract entitled "Exchange of Real Properties" AL., V. RUFINA APARIS AND CASIANO PURAY, G.R.
whereby the former transferred said 436 square meter-portion to the NO. L-23424, PROMULGATED JANUARY 31, 1968,
latter, who has been in occupation since. WHICH CASE IS NOT APPLICABLE TO THE CASE AT
BAR.
On August 29, 1969, plaintiff Sulpicia Jimenez executed an affidavit
adjudicating unto herself the other half of the property appertaining to VII
Carlos Jimenez, upon manifestation that she is the only heir of her THE LOWER COURT ERRED IN DISMISSING THE
deceased uncle. Consequently Transfer Certificate of Title No. 82275 COMPLAINT AND ORDERING THE APPELLANTS TO
was issued on October 1, 1969 in petitioner's name alone over the PAY THE APPELLEES THE SUM OF P500.00 AS
entire 2,932 square meter property. ATTORNEYS FEES PLUS THE COSTS.

On April 1, 1970, Sulpicia Jimenez, joined by her husband, instituted From the foregoing, this petition for review was filed.
the present action for the recovery of the eastern portion of the property
consisting of 436 square meters occupied by defendant Teodora Grado We find merit in the petition.
and her son.
From the start the respondent court erred in not declaring that Melecia
After trial on the merits, the lower court rendered judgment, the Jimenez Cayabyab also known as Melecia Jimenez, is not the daughter
dispositive portion of which reads: of Carlos Jimenez and therefore, had no right over the property in
WHEREFORE, decision is hereby rendered dismissing the question. Respondents failed to present concrete evidence to prove that
complaint and holding the defendant, Teodora Grado, the Melecia Cayabyab was really the daughter of Carlos Jimenez.
absolute owner of the land in question; ordering the plaintiffs Nonetheless, assuming for the sake of argument that Melecia
to pay to the defendant the amount of P500.00 as damages, Cayabyab was the illegitimate daughter of Carlos Jimenez there can be
as attorney's fees, and to pay the costs of suit. no question that Melecia Cayabyab had no right to succeed to the estate
SO ORDERED. (Rollo, p. 20) of Carlos Jimenez and could not have validly acquired, nor legally
transferred to Edilberto Cagampan that portion of the property subject
Petitioner appealed the above judgment to the respondent Court of of this petition.
Appeals and on March 1, 1977, respondent Court of Appeals rendered
a decision affirming the same in toto. Said decision was rendered by a It is well-settled in this jurisdiction that the rights to the succession are
special division of five (5) justices, with the Hon. Lourdes San Diego, transmitted from the moment of the death of the decedent (Art. 777,
dissenting. Civil Code). Moreover, Art. 2263 of the Civil Code provides as
follows:
Petitioners within the reglementary period granted by the Honorable Rights to the inheritance of a person who died with or
Court of Appeals, filed therewith a motion for reconsideration. But without a will, before the effectivity of this Code, shall be
said motion for reconsideration was denied by the Court of Appeals in governed by the Civil Code of 1889, by other previous laws,
its resolution dated June 3, 1977. and by the Rules of Court . . . (Rollo, p. 17)

In their appeal to the respondent Court of Appeals from the Thus, since Carlos Jimenez, owner of one-half pro-indiviso portion of
aforequoted decision of the trial court, herein petitioner raised the that parcel of land then covered by Original Certificate of title No.
following assignments of error to wit: 50933, died on July 9, 1936 (Exhibit "F") way before the effectivity of
ASSIGNMENTS OF ERROR the Civil Code of the Philippines, the successional rights pertaining to
his estate must be determined in accordance with the Civil Code of
I 1889.
THE LOWER COURT ERRED IN NOT DECLARING
THAT MELECIA CAYABYAB, ALSO KNOWN AS Citing the case of Cid v. Burnaman (24 SCRA 434) wherein this Court
MELECIA JIMENEZ, IS NOT THE DAUGHTER OF categorically held that:
CARLOS JIMENEZ. To be an heir under the rules of Civil Code of 1889 (which
was the law in force when Carlos Jimenez died and which
II should be the governing law in so far as the right to inherit
THE LOWER COURT ERRED IN NOT DECLARING from his estate was concerned), a child must be either a child
THAT MELECIA CAYABYAB, ALSO KNOWN AS legitimate, legitimated, or adopted, or else an acknowledged
MELECIA JIMENEZ, HAS NO RIGHT TO SELL THE natural child for illegitimate not natural are disqualified
LAND IN QUESTION TO EDILBERTO CAGAMPAN. to inherit. (Civil Code of 1889, Art. 807, 935)

III Even assuming that Melecia Cayabyab was born out of the common-
THE LOWER COURT ERRED IN NOT DECLARING law-relationship between her mother (Maria Cayabyab) and Carlos
THAT EDILBERTO CAGAMPAN DID NOT BECOME Jimenez, she could not even be considered an acknowledged natural
THE OWNER OF THE LAND IN QUESTION BY child because Carlos Jimenez was then legally married to Susana
VIRTUE OF THE DEED OF SALE (EXH. "1") Abalos and therefore not qualified to marry Maria Cayabyab and
EXECUTED BY MELECIA CAYABYAB, ALIAS consequently Melecia Cayabyab was an illegitimate spurious child and
MELECIA JIMENEZ, IN HIS FAVOR. not entitled to any successional rights in so far as the estate of Carlos
Jimenez was concerned.
IV
THE LOWER COURT ERRED IN NOT DECLARING Melecia Cayabyab in the absence of any voluntary conveyance to her
THAT TEODORA GRADO DID NOT BECOME THE by Carlos Jimenez or Sulpicia Jimenez of the litigated portion of the
OWNER OF THE LAND IN QUESTION BY VIRTUE OF land could not even legally transfer the parcel of land to Edilberto
THE DEED OF EXCHANGE (EXH. "7") EXECUTED BY Cagampan who accordingly, could not also legally transfer the same
HER AND EDILBERTO CAGAMPAN. to herein private respondents.

V Analyzing the case before Us in this manner, We can immediately


discern another error in the decision of the respondent court, which is

15
that the said court sustained and made applicable to the case at bar the G.R. No. L-16749 January 31, 1963
ruling in the case of Arcuino, et al., v. Aparis and Puray, No. L-23424,
January 31, 1968, 22 SCRA 407, wherein We held that: IN THE MATTER OF THE TESTATE ESTATE OF EDWARD
. . . it is true that the lands registered under the Torrens E. CHRISTENSEN, DECEASED.
System may not be acquired by prescription but plaintiffs ADOLFO C. AZNAR, Executor and LUCY CHRISTENSEN,
herein are not the registered owners. They merely claim to Heir of the deceased, Executor and Heir-appellees, vs. HELEN
have acquired by succession, their alleged title or interest in CHRISTENSEN GARCIA, oppositor-appellant.
lot No. 355. At any rate plaintiffs herein are guilty of laches.
LABRADOR, J.:
The respondent court relying on the Arcuino case, concluded that
respondents had acquired the property under litigation by prescription. This is an appeal from a decision of the Court of First Instance of
We cannot agree with such conclusion, because there is one very Davao, Hon. Vicente N. Cusi, Jr., presiding, in Special Proceeding No.
marked and important difference between the case at bar and that of 622 of said court, dated September 14, 1949, approving among things
the Arcuino case, and that is, that since 1933 petitioner Sulpicia the final accounts of the executor, directing the executor to reimburse
Jimenez was a title holder, the property then being registered in her Maria Lucy Christensen the amount of P3,600 paid by her to Helen
and her uncle Carlos Jimenez' name. In the Arcuino case, this Supreme Christensen Garcia as her legacy, and declaring Maria Lucy
Court held. "(I)t is true that lands registered under the Torrens System Christensen entitled to the residue of the property to be enjoyed during
may not be acquired by prescription but plaintiffs herein are not the her lifetime, and in case of death without issue, one-half of said residue
registered owners." (Rollo, p. 38) Even in the said cited case the to be payable to Mrs. Carrie Louise C. Borton, etc., in accordance with
principle of imprescriptibility of Torrens Titles was respected. the provisions of the will of the testator Edward E. Christensen. The
will was executed in Manila on March 5, 1951 and contains the
Melecia Cayabyab's possession or of her predecessors-in-interest following provisions:
would be unavailing against the petitioner Sulpicia Jimenez who was 3. I declare ... that I have but ONE (1) child, named MARIA
the holder pro-indiviso with Carlos Jimenez of the Torrens Certificate LUCY CHRISTENSEN (now Mrs. Bernard Daney), who
of Title covering a tract of land which includes the portion now in was born in the Philippines about twenty-eight years ago,
question, from February 28, 1933, when the Original Certificate of and who is now residing at No. 665 Rodger Young Village,
Title No. 50933 (Exhibit 8) was issued. Los Angeles, California, U.S.A.
4. I further declare that I now have no living ascendants, and
No possession by any person of any portion of the land covered by said no descendants except my above named daughter, MARIA
original certificate of titles, could defeat the title of the registered LUCY CHRISTENSEN DANEY.
owner of the land covered by the certificate of title. xxx xxx xxx
7. I give, devise and bequeath unto MARIA HELEN
Sulpicia's title over her one-half undivided property remained good CHRISTENSEN, now married to Eduardo Garcia, about
and continued to be good when she segregated it into a new title (T.C.T eighteen years of age and who, notwithstanding the fact that
No. 82275, Exhibit "A") in 1969. Sulpicia's ownership over her one- she was baptized Christensen, is not in any way related to
half of the land and which is the land in dispute was always covered me, nor has she been at any time adopted by me, and who,
by a Torrens title, and therefore, no amount of possession thereof by from all information I have now resides in Egpit, Digos,
the respondents, could ever defeat her proprietary rights thereon. It is Davao, Philippines, the sum of THREE THOUSAND SIX
apparent, that the right of plaintiff (now petitioner) to institute this HUNDRED PESOS (P3,600.00), Philippine Currency the
action to recover possession of the portion of the land in question based same to be deposited in trust for the said Maria Helen
on the Torrens Title of Sulpicia Jimenez, T.C.T. No. 82275 (Exhibit Christensen with the Davao Branch of the Philippine
"A") is imprescriptible and not barred under the doctrine of laches. National Bank, and paid to her at the rate of One Hundred
Pesos (P100.00), Philippine Currency per month until the
The respondent Court of Appeals declared the petitioner Sulpicia principal thereof as well as any interest which may have
Jimenez guilty of laches and citing the ruling in the case of Heirs of accrued thereon, is exhausted..
Lacamen v. Heirs of Laruan (65 SCRA 605), held that, since petitioner xxx xxx xxx
Sulpicia Jimenez executed her Affidavit of Self-Adjudication only in 12. I hereby give, devise and bequeath, unto my well-
1969, she lost the right to recover possession of the parcel of land beloved daughter, the said MARIA LUCY CHRISTENSEN
subject of the litigation. DANEY (Mrs. Bernard Daney), now residing as aforesaid at
No. 665 Rodger Young Village, Los Angeles, California,
In this instance, again, We rule for the petitioner. There is no absolute U.S.A., all the income from the rest, remainder, and residue
rule as to what constitutes laches or staleness of demand; each case is of my property and estate, real, personal and/or mixed, of
to be determined according to its particular circumstances. The whatsoever kind or character, and wheresoever situated, of
question of laches is addressed to the sound discretion of the court and which I may be possessed at my death and which may have
since laches is an equitable doctrine, its application is controlled by come to me from any source whatsoever, during her lifetime:
equitable considerations. It cannot be worked to defeat justice or to ....
perpetrate fraud and injustice. It would be rank injustice and patently
inequitous to deprive the lawful heirs of their rightful inheritance. It is in accordance with the above-quoted provisions that the executor
in his final account and project of partition ratified the payment of only
Petitioner Sulpicia Jimenez is entitled to the relief prayed for, declaring P3,600 to Helen Christensen Garcia and proposed that the residue of
her to be the sole and absolute owner of the land in question with right the estate be transferred to his daughter, Maria Lucy Christensen.
to its possession and enjoyment. Since her uncle Carlos Jimenez died
in 1936, his pro-indiviso share in the properties then owned in co- Opposition to the approval of the project of partition was filed by
ownership with his niece Sulpicia descended by intestacy to Sulpicia Helen Christensen Garcia, insofar as it deprives her (Helen) of her
Jimenez alone because Carlos died without any issue or other heirs. legitime as an acknowledged natural child, she having been declared
by Us in G.R. Nos. L-11483-84 an acknowledged natural child of the
After all, the professed objective of Act No. 496, otherwise known as deceased Edward E. Christensen. The legal grounds of opposition are
the Land Registration Act or the law which established the Torrens (a) that the distribution should be governed by the laws of the
System of Land Registration in the Philippines is that the stability of Philippines, and (b) that said order of distribution is contrary thereto
the landholding system in the Philippines depends on the confidence insofar as it denies to Helen Christensen, one of two acknowledged
of the people in the titles covering the properties. And to this end, this natural children, one-half of the estate in full ownership. In
Court has invariably upheld the indefeasibility of the Torrens Title and amplification of the above grounds it was alleged that the law that
in, among others, J.M. Tuason and Co., Inc. v. Macalindong (6 SCRA should govern the estate of the deceased Christensen should not be the
938), held that "the right of the appellee to file an action to recover internal law of California alone, but the entire law thereof because
possession based on its Torrens Title is imprescriptible and not barred several foreign elements are involved, that the forum is the Philippines
under the doctrine of laches. and even if the case were decided in California, Section 946 of the
California Civil Code, which requires that the domicile of the decedent
WHEREFORE, the Petition for Review is hereby GRANTED. The should apply, should be applicable. It was also alleged that Maria
Decision and Resolution dated March 1, 1977 and June 3, 1977 in CA Helen Christensen having been declared an acknowledged natural
G.R. No. L-49178-R are SET ASIDE. SO ORDERED. child of the decedent, she is deemed for all purposes legitimate from
the time of her birth.

16
The court below ruled that as Edward E. Christensen was a citizen of 622, as Exhibits "AA", "BB" and "CC-Daney"; Exhs. "MM",
the United States and of the State of California at the time of his death, "MM-l", "MM-2-Daney" and p. 473, t.s.n., July 21, 1953.)
the successional rights and intrinsic validity of the provisions in his
will are to be governed by the law of California, in accordance with In April, 1951, Edward E. Christensen returned once more
which a testator has the right to dispose of his property in the way he to California shortly after the making of his last will and
desires, because the right of absolute dominion over his property is testament (now in question herein) which he executed at his
sacred and inviolable (In re McDaniel's Estate, 77 Cal. Appl. 2d 877, lawyers' offices in Manila on March 5, 1951. He died at the
176 P. 2d 952, and In re Kaufman, 117 Cal. 286, 49 Pac. 192, cited in St. Luke's Hospital in the City of Manila on April 30, 1953.
page 179, Record on Appeal). Oppositor Maria Helen Christensen, (pp. 2-3)
through counsel, filed various motions for reconsideration, but these
were denied. Hence, this appeal. In arriving at the conclusion that the domicile of the deceased is the
Philippines, we are persuaded by the fact that he was born in New
The most important assignments of error are as follows: York, migrated to California and resided there for nine years, and since
I he came to the Philippines in 1913 he returned to California very rarely
THE LOWER COURT ERRED IN IGNORING THE DECISION OF and only for short visits (perhaps to relatives), and considering that he
THE HONORABLE SUPREME COURT THAT HELEN IS THE appears never to have owned or acquired a home or properties in that
ACKNOWLEDGED NATURAL CHILD OF EDWARD E. state, which would indicate that he would ultimately abandon the
CHRISTENSEN AND, CONSEQUENTLY, IN DEPRIVING HER Philippines and make home in the State of California.
OF HER JUST SHARE IN THE INHERITANCE. Sec. 16. Residence is a term used with many shades of
meaning from mere temporary presence to the most
II permanent abode. Generally, however, it is used to denote
THE LOWER COURT ERRED IN ENTIRELY IGNORING something more than mere physical presence. (Goodrich on
AND/OR FAILING TO RECOGNIZE THE EXISTENCE OF Conflict of Laws, p. 29)
SEVERAL FACTORS, ELEMENTS AND CIRCUMSTANCES
CALLING FOR THE APPLICATION OF INTERNAL LAW. As to his citizenship, however, We find that the citizenship that he
acquired in California when he resided in Sacramento, California from
III 1904 to 1913, was never lost by his stay in the Philippines, for the latter
THE LOWER COURT ERRED IN FAILING TO RECOGNIZE was a territory of the United States (not a state) until 1946 and the
THAT UNDER INTERNATIONAL LAW, PARTICULARLY deceased appears to have considered himself as a citizen of California
UNDER THE RENVOI DOCTRINE, THE INTRINSIC VALIDITY by the fact that when he executed his will in 1951 he declared that he
OF THE TESTAMENTARY DISPOSITION OF THE was a citizen of that State; so that he appears never to have intended to
DISTRIBUTION OF THE ESTATE OF THE DECEASED abandon his California citizenship by acquiring another. This
EDWARD E. CHRISTENSEN SHOULD BE GOVERNED BY THE conclusion is in accordance with the following principle expounded by
LAWS OF THE PHILIPPINES. Goodrich in his Conflict of Laws.
The terms "'residence" and "domicile" might well be taken
IV to mean the same thing, a place of permanent abode. But
THE LOWER COURT ERRED IN NOT DECLARING THAT THE domicile, as has been shown, has acquired a technical
SCHEDULE OF DISTRIBUTION SUBMITTED BY THE meaning. Thus one may be domiciled in a place where he
EXECUTOR IS CONTRARY TO THE PHILIPPINE LAWS. has never been. And he may reside in a place where he has
no domicile. The man with two homes, between which he
V divides his time, certainly resides in each one, while living
THE LOWER COURT ERRED IN NOT DECLARING THAT in it. But if he went on business which would require his
UNDER THE PHILIPPINE LAWS HELEN CHRISTENSEN presence for several weeks or months, he might properly be
GARCIA IS ENTITLED TO ONE-HALF (1/2) OF THE ESTATE IN said to have sufficient connection with the place to be called
FULL OWNERSHIP. a resident. It is clear, however, that, if he treated his
settlement as continuing only for the particular business in
There is no question that Edward E. Christensen was a citizen of the hand, not giving up his former "home," he could not be a
United States and of the State of California at the time of his death. But domiciled New Yorker. Acquisition of a domicile of choice
there is also no question that at the time of his death he was domiciled requires the exercise of intention as well as physical
in the Philippines, as witness the following facts admitted by the presence. "Residence simply requires bodily presence of an
executor himself in appellee's brief: inhabitant in a given place, while domicile requires bodily
In the proceedings for admission of the will to probate, the presence in that place and also an intention to make it one's
facts of record show that the deceased Edward E. domicile." Residence, however, is a term used with many
Christensen was born on November 29, 1875 in New York shades of meaning, from the merest temporary presence to
City, N.Y., U.S.A.; his first arrival in the Philippines, as an the most permanent abode, and it is not safe to insist that any
appointed school teacher, was on July 1, 1901, on board the one use et the only proper one. (Goodrich, p. 29)
U.S. Army Transport "Sheridan" with Port of Embarkation
as the City of San Francisco, in the State of California, The law that governs the validity of his testamentary dispositions is
U.S.A. He stayed in the Philippines until 1904. defined in Article 16 of the Civil Code of the Philippines, which is as
follows:
In December, 1904, Mr. Christensen returned to the United ART. 16. Real property as well as personal property is
States and stayed there for the following nine years until subject to the law of the country where it is situated.
1913, during which time he resided in, and was teaching However, intestate and testamentary successions, both with
school in Sacramento, California. respect to the order of succession and to the amount of
successional rights and to the intrinsic validity of
Mr. Christensen's next arrival in the Philippines was in July testamentary provisions, shall be regulated by the national
of the year 1913. However, in 1928, he again departed the law of the person whose succession is under consideration,
Philippines for the United States and came back here the whatever may be the nature of the property and regardless of
following year, 1929. Some nine years later, in 1938, he the country where said property may be found.
again returned to his own country, and came back to the
Philippines the following year, 1939. The application of this article in the case at bar requires the
determination of the meaning of the term "national law" is used
Wherefore, the parties respectfully pray that the foregoing therein.
stipulation of facts be admitted and approved by this
Honorable Court, without prejudice to the parties adducing There is no single American law governing the validity of testamentary
other evidence to prove their case not covered by this provisions in the United States, each state of the Union having its own
stipulation of facts. 1wph1.t private law applicable to its citizens only and in force only within the
state. The "national law" indicated in Article 16 of the Civil Code
Being an American citizen, Mr. Christensen was interned by above quoted can not, therefore, possibly mean or apply to any general
the Japanese Military Forces in the Philippines during World American law. So it can refer to no other than the private law of the
War II. Upon liberation, in April 1945, he left for the United State of California.
States but returned to the Philippines in December, 1945.
Appellees Collective Exhibits "6", CFI Davao, Sp. Proc.

17
The next question is: What is the law in California governing the X, a citizen of Massachusetts, dies intestate, domiciled in
disposition of personal property? The decision of the court below, France, leaving movable property in Massachusetts,
sustains the contention of the executor-appellee that under the England, and France. The question arises as to how this
California Probate Code, a testator may dispose of his property by will property is to be distributed among X's next of kin.
in the form and manner he desires, citing the case of Estate of Assume (1) that this question arises in a Massachusetts court.
McDaniel, 77 Cal. Appl. 2d 877, 176 P. 2d 952. But appellant invokes There the rule of the conflict of laws as to intestate
the provisions of Article 946 of the Civil Code of California, which is succession to movables calls for an application of the law of
as follows: the deceased's last domicile. Since by hypothesis X's last
If there is no law to the contrary, in the place where personal domicile was France, the natural thing for the Massachusetts
property is situated, it is deemed to follow the person of its court to do would be to turn to French statute of distributions,
owner, and is governed by the law of his domicile. or whatever corresponds thereto in French law, and decree a
distribution accordingly. An examination of French law,
The existence of this provision is alleged in appellant's opposition and however, would show that if a French court were called upon
is not denied. We have checked it in the California Civil Code and it is to determine how this property should be distributed, it
there. Appellee, on the other hand, relies on the case cited in the would refer the distribution to the national law of the
decision and testified to by a witness. (Only the case of Kaufman is deceased, thus applying the Massachusetts statute of
correctly cited.) It is argued on executor's behalf that as the deceased distributions. So on the surface of things the Massachusetts
Christensen was a citizen of the State of California, the internal law court has open to it alternative course of action: (a) either to
thereof, which is that given in the abovecited case, should govern the apply the French law is to intestate succession, or (b) to
determination of the validity of the testamentary provisions of resolve itself into a French court and apply the
Christensen's will, such law being in force in the State of California of Massachusetts statute of distributions, on the assumption
which Christensen was a citizen. Appellant, on the other hand, insists that this is what a French court would do. If it accepts the so-
that Article 946 should be applicable, and in accordance therewith and called renvoi doctrine, it will follow the latter course, thus
following the doctrine of the renvoi, the question of the validity of the applying its own law.
testamentary provision in question should be referred back to the law
of the decedent's domicile, which is the Philippines. This is one type of renvoi. A jural matter is presented which
the conflict-of-laws rule of the forum refers to a foreign law,
The theory of doctrine of renvoi has been defined by various authors, the conflict-of-laws rule of which, in turn, refers the matter
thus: back again to the law of the forum. This is renvoi in the
The problem has been stated in this way: "When the Conflict narrower sense. The German term for this judicial process is
of Laws rule of the forum refers a jural matter to a foreign 'Ruckverweisung.'" (Harvard Law Review, Vol. 31, pp. 523-
law for decision, is the reference to the purely internal rules 571.)
of law of the foreign system; i.e., to the totality of the foreign
law minus its Conflict of Laws rules?" After a decision has been arrived at that a foreign law is to
be resorted to as governing a particular case, the further
On logic, the solution is not an easy one. The Michigan court question may arise: Are the rules as to the conflict of laws
chose to accept the renvoi, that is, applied the Conflict of contained in such foreign law also to be resorted to? This is
Laws rule of Illinois which referred the matter back to a question which, while it has been considered by the courts
Michigan law. But once having determined the the Conflict in but a few instances, has been the subject of frequent
of Laws principle is the rule looked to, it is difficult to see discussion by textwriters and essayists; and the doctrine
why the reference back should not have been to Michigan involved has been descriptively designated by them as the
Conflict of Laws. This would have resulted in the "endless "Renvoyer" to send back, or the "Ruchversweisung", or the
chain of references" which has so often been criticized be "Weiterverweisung", since an affirmative answer to the
legal writers. The opponents of the renvoi would have question postulated and the operation of the adoption of the
looked merely to the internal law of Illinois, thus rejecting foreign law in toto would in many cases result in returning
the renvoi or the reference back. Yet there seems no the main controversy to be decided according to the law of
compelling logical reason why the original reference should the forum. ... (16 C.J.S. 872.)
be the internal law rather than to the Conflict of Laws rule.
It is true that such a solution avoids going on a merry-go- Another theory, known as the "doctrine of renvoi", has been
round, but those who have accepted the renvoi theory avoid advanced. The theory of the doctrine of renvoi is that the
this inextricabilis circulas by getting off at the second court of the forum, in determining the question before it,
reference and at that point applying internal law. Perhaps the must take into account the whole law of the other
opponents of the renvoi are a bit more consistent for they jurisdiction, but also its rules as to conflict of laws, and then
look always to internal law as the rule of reference. apply the law to the actual question which the rules of the
other jurisdiction prescribe. This may be the law of the
Strangely enough, both the advocates for and the objectors forum. The doctrine of the renvoi has generally been
to the renvoi plead that greater uniformity will result from repudiated by the American authorities. (2 Am. Jur. 296)
adoption of their respective views. And still more strange is
the fact that the only way to achieve uniformity in this The scope of the theory of renvoi has also been defined and the reasons
choice-of-law problem is if in the dispute the two states for its application in a country explained by Prof. Lorenzen in an article
whose laws form the legal basis of the litigation disagree as in the Yale Law Journal, Vol. 27, 1917-1918, pp. 529-531. The
to whether the renvoi should be accepted. If both reject, or pertinent parts of the article are quoted herein below:
both accept the doctrine, the result of the litigation will vary The recognition of the renvoi theory implies that the rules of
with the choice of the forum. In the case stated above, had the conflict of laws are to be understood as incorporating not
the Michigan court rejected the renvoi, judgment would only the ordinary or internal law of the foreign state or
have been against the woman; if the suit had been brought in country, but its rules of the conflict of laws as well.
the Illinois courts, and they too rejected the renvoi, judgment According to this theory 'the law of a country' means the
would be for the woman. The same result would happen, whole of its law.
though the courts would switch with respect to which would xxx xxx xxx
hold liability, if both courts accepted the renvoi.
Von Bar presented his views at the meeting of the Institute
The Restatement accepts the renvoi theory in two instances: of International Law, at Neuchatel, in 1900, in the form of
where the title to land is in question, and where the validity the following theses:
of a decree of divorce is challenged. In these cases the (1) Every court shall observe the law of its country as regards
Conflict of Laws rule of the situs of the land, or the domicile the application of foreign laws.
of the parties in the divorce case, is applied by the forum, but (2) Provided that no express provision to the contrary exists,
any further reference goes only to the internal law. Thus, a the court shall respect:
person's title to land, recognized by the situs, will be (a) The provisions of a foreign law which
recognized by every court; and every divorce, valid by the disclaims the right to bind its nationals abroad as
domicile of the parties, will be valid everywhere. (Goodrich, regards their personal statute, and desires that said
Conflict of Laws, Sec. 7, pp. 13-14.) personal statute shall be determined by the law of
the domicile, or even by the law of the place where
the act in question occurred.

18
(b) The decision of two or more foreign systems such action would leave the issue incapable of determination because
of law, provided it be certain that one of them is the case will then be like a football, tossed back and forth between the
necessarily competent, which agree in attributing two states, between the country of which the decedent was a citizen
the determination of a question to the same system and the country of his domicile. The Philippine court must apply its
of law. own law as directed in the conflict of laws rule of the state of the
xxx xxx xxx decedent, if the question has to be decided, especially as the application
of the internal law of California provides no legitime for children while
If, for example, the English law directs its judge to distribute the Philippine law, Arts. 887(4) and 894, Civil Code of the Philippines,
the personal estate of an Englishman who has died domiciled makes natural children legally acknowledged forced heirs of the parent
in Belgium in accordance with the law of his domicile, he recognizing them.
must first inquire whether the law of Belgium would
distribute personal property upon death in accordance with The Philippine cases (In re Estate of Johnson, 39 Phil. 156; Riera vs.
the law of domicile, and if he finds that the Belgian law Palmaroli, 40 Phil. 105; Miciano vs. Brimo, 50 Phil. 867; Babcock
would make the distribution in accordance with the law of Templeton vs. Rider Babcock, 52 Phil. 130; and Gibbs vs.
nationality that is the English law he must accept this Government, 59 Phil. 293.) cited by appellees to support the decision
reference back to his own law. can not possibly apply in the case at bar, for two important reasons,
i.e., the subject in each case does not appear to be a citizen of a state in
We note that Article 946 of the California Civil Code is its conflict of the United States but with domicile in the Philippines, and it does not
laws rule, while the rule applied in In re Kaufman, Supra, its internal appear in each case that there exists in the state of which the subject is
law. If the law on succession and the conflict of laws rules of California a citizen, a law similar to or identical with Art. 946 of the California
are to be enforced jointly, each in its own intended and appropriate Civil Code.
sphere, the principle cited In re Kaufman should apply to citizens
living in the State, but Article 946 should apply to such of its citizens We therefore find that as the domicile of the deceased Christensen, a
as are not domiciled in California but in other jurisdictions. The rule citizen of California, is the Philippines, the validity of the provisions
laid down of resorting to the law of the domicile in the determination of his will depriving his acknowledged natural child, the appellant,
of matters with foreign element involved is in accord with the general should be governed by the Philippine Law, the domicile, pursuant to
principle of American law that the domiciliary law should govern in Art. 946 of the Civil Code of California, not by the internal law of
most matters or rights which follow the person of the owner. California..

When a man dies leaving personal property in one or more WHEREFORE, the decision appealed from is hereby reversed and the
states, and leaves a will directing the manner of distribution case returned to the lower court with instructions that the partition be
of the property, the law of the state where he was domiciled made as the Philippine law on succession provides. Judgment reversed,
at the time of his death will be looked to in deciding legal with costs against appellees.
questions about the will, almost as completely as the law of
situs is consulted in questions about the devise of land. It is G.R. No. L-22595 November 1, 1927
logical that, since the domiciliary rules control devolution of
the personal estate in case of intestate succession, the same Testate Estate of Joseph G. Brimo, JUAN MICIANO,
rules should determine the validity of an attempted administrator, petitioner-appellee, vs.
testamentary dispostion of the property. Here, also, it is not ANDRE BRIMO, opponent-appellant.
that the domiciliary has effect beyond the borders of the
domiciliary state. The rules of the domicile are recognized ROMUALDEZ, J.:
as controlling by the Conflict of Laws rules at the situs
property, and the reason for the recognition as in the case of The partition of the estate left by the deceased Joseph G. Brimo is in
intestate succession, is the general convenience of the question in this case.
doctrine. The New York court has said on the point: 'The
general principle that a dispostiton of a personal property, The judicial administrator of this estate filed a scheme of partition.
valid at the domicile of the owner, is valid anywhere, is one Andre Brimo, one of the brothers of the deceased, opposed it. The
of the universal application. It had its origin in that court, however, approved it.
international comity which was one of the first fruits of
civilization, and it this age, when business intercourse and The errors which the oppositor-appellant assigns are:
the process of accumulating property take but little notice of (1) The approval of said scheme of partition; (2) denial of his
boundary lines, the practical wisdom and justice of the rule participation in the inheritance; (3) the denial of the motion for
is more apparent than ever. (Goodrich, Conflict of Laws, reconsideration of the order approving the partition; (4) the approval
Sec. 164, pp. 442-443.) of the purchase made by the Pietro Lana of the deceased's business and
the deed of transfer of said business; and (5) the declaration that the
Appellees argue that what Article 16 of the Civil Code of the Turkish laws are impertinent to this cause, and the failure not to
Philippines pointed out as the national law is the internal law of postpone the approval of the scheme of partition and the delivery of
California. But as above explained the laws of California have the deceased's business to Pietro Lanza until the receipt of the
prescribed two sets of laws for its citizens, one for residents therein depositions requested in reference to the Turkish laws.
and another for those domiciled in other jurisdictions. Reason demands
that We should enforce the California internal law prescribed for its The appellant's opposition is based on the fact that the partition in
citizens residing therein, and enforce the conflict of laws rules for the question puts into effect the provisions of Joseph G. Brimo's will which
citizens domiciled abroad. If we must enforce the law of California as are not in accordance with the laws of his Turkish nationality, for
in comity we are bound to go, as so declared in Article 16 of our Civil which reason they are void as being in violation or article 10 of the
Code, then we must enforce the law of California in accordance with Civil Code which, among other things, provides the following:
the express mandate thereof and as above explained, i.e., apply the Nevertheless, legal and testamentary successions, in respect
internal law for residents therein, and its conflict-of-laws rule for those to the order of succession as well as to the amount of the
domiciled abroad. successional rights and the intrinsic validity of their
provisions, shall be regulated by the national law of the
It is argued on appellees' behalf that the clause "if there is no law to the person whose succession is in question, whatever may be the
contrary in the place where the property is situated" in Sec. 946 of the nature of the property or the country in which it may be
California Civil Code refers to Article 16 of the Civil Code of the situated.
Philippines and that the law to the contrary in the Philippines is the
provision in said Article 16 that the national law of the deceased But the fact is that the oppositor did not prove that said testimentary
should govern. This contention can not be sustained. As explained in dispositions are not in accordance with the Turkish laws, inasmuch as
the various authorities cited above the national law mentioned in he did not present any evidence showing what the Turkish laws are on
Article 16 of our Civil Code is the law on conflict of laws in the the matter, and in the absence of evidence on such laws, they are
California Civil Code, i.e., Article 946, which authorizes the reference presumed to be the same as those of the Philippines. (Lim and Lim vs.
or return of the question to the law of the testator's domicile. The Collector of Customs, 36 Phil., 472.)
conflict of laws rule in California, Article 946, Civil Code, precisely
refers back the case, when a decedent is not domiciled in California, to It has not been proved in these proceedings what the Turkish laws are.
the law of his domicile, the Philippines in the case at bar. The court of He, himself, acknowledges it when he desires to be given an
the domicile can not and should not refer the case back to California; opportunity to present evidence on this point; so much so that he
19
assigns as an error of the court in not having deferred the approval of G.R. No. 124371 November 23, 2000
the scheme of partition until the receipt of certain testimony requested
regarding the Turkish laws on the matter. PAULA T. LLORENTE, petitioner, vs.
COURT OF APPEALS and ALICIA F.
The refusal to give the oppositor another opportunity to prove such LLORENTE, respondents.
laws does not constitute an error. It is discretionary with the trial court,
and, taking into consideration that the oppositor was granted ample DECISION
opportunity to introduce competent evidence, we find no abuse of PARDO, J.:
discretion on the part of the court in this particular. There is, therefore,
no evidence in the record that the national law of the testator Joseph The Case
G. Brimo was violated in the testamentary dispositions in question The case raises a conflict of laws issue.
which, not being contrary to our laws in force, must be complied with
and executed. lawphil.net What is before us is an appeal from the decision of the Court of
Appeals1 modifying that of the Regional Trial Court, Camarines Sur,
Therefore, the approval of the scheme of partition in this respect was Branch 35, Iriga City2 declaring respondent Alicia F. Llorente
not erroneous. (herinafter referred to as "Alicia"), as co-owners of whatever property
she and the deceased Lorenzo N. Llorente (hereinafter referred to as
In regard to the first assignment of error which deals with the exclusion "Lorenzo") may have acquired during the twenty-five (25) years that
of the herein appellant as a legatee, inasmuch as he is one of the they lived together as husband and wife.
persons designated as such in will, it must be taken into consideration
that such exclusion is based on the last part of the second clause of the The Facts
will, which says: The deceased Lorenzo N. Llorente was an enlisted serviceman of the
Second. I like desire to state that although by law, I am a United States Navy from March 10, 1927 to September 30, 1957.3
Turkish citizen, this citizenship having been conferred upon
me by conquest and not by free choice, nor by nationality On February 22, 1937, Lorenzo and petitioner Paula Llorente
and, on the other hand, having resided for a considerable (hereinafter referred to as "Paula") were married before a parish priest,
length of time in the Philippine Islands where I succeeded in Roman Catholic Church, in Nabua, Camarines Sur.4
acquiring all of the property that I now possess, it is my wish
that the distribution of my property and everything in Before the outbreak of the Pacific War, Lorenzo departed for the
connection with this, my will, be made and disposed of in United States and Paula stayed in the conjugal home in barrio
accordance with the laws in force in the Philippine islands, Antipolo, Nabua, Camarines Sur.5
requesting all of my relatives to respect this wish, otherwise,
I annul and cancel beforehand whatever disposition found in On November 30, 1943, Lorenzo was admitted to United States
this will favorable to the person or persons who fail to citizenship and Certificate of Naturalization No. 5579816 was issued
comply with this request. in his favor by the United States District Court, Southern District of
New York.6
The institution of legatees in this will is conditional, and the condition
is that the instituted legatees must respect the testator's will to Upon the liberation of the Philippines by the American Forces in 1945,
distribute his property, not in accordance with the laws of his Lorenzo was granted an accrued leave by the U. S. Navy, to visit his
nationality, but in accordance with the laws of the Philippines. wife and he visited the Philippines.7 He discovered that his wife Paula
was pregnant and was "living in" and having an adulterous relationship
If this condition as it is expressed were legal and valid, any legatee with his brother, Ceferino Llorente.8
who fails to comply with it, as the herein oppositor who, by his attitude
in these proceedings has not respected the will of the testator, as On December 4, 1945, Paula gave birth to a boy registered in the Office
expressed, is prevented from receiving his legacy. of the Registrar of Nabua as "Crisologo Llorente," with the certificate
stating that the child was not legitimate and the line for the fathers
The fact is, however, that the said condition is void, being contrary to name was left blank.9
law, for article 792 of the civil Code provides the following:
Impossible conditions and those contrary to law or good Lorenzo refused to forgive Paula and live with her. In fact, on February
morals shall be considered as not imposed and shall not 2, 1946, the couple drew a written agreement to the effect that (1) all
prejudice the heir or legatee in any manner whatsoever, even the family allowances allotted by the United States Navy as part of
should the testator otherwise provide. Lorenzos salary and all other obligations for Paulas daily
maintenance and support would be suspended; (2) they would dissolve
And said condition is contrary to law because it expressly ignores the their marital union in accordance with judicial proceedings; (3) they
testator's national law when, according to article 10 of the civil Code would make a separate agreement regarding their conjugal property
above quoted, such national law of the testator is the one to govern his acquired during their marital life; and (4) Lorenzo would not prosecute
testamentary dispositions. Paula for her adulterous act since she voluntarily admitted her fault and
agreed to separate from Lorenzo peacefully. The agreement was signed
Said condition then, in the light of the legal provisions above cited, is by both Lorenzo and Paula and was witnessed by Paulas father and
considered unwritten, and the institution of legatees in said will is stepmother. The agreement was notarized by Notary Public Pedro
unconditional and consequently valid and effective even as to the Osabel.10
herein oppositor.
Lorenzo returned to the United States and on November 16, 1951 filed
It results from all this that the second clause of the will regarding the for divorce with the Superior Court of the State of California in and for
law which shall govern it, and to the condition imposed upon the the County of San Diego. Paula was represented by counsel, John
legatees, is null and void, being contrary to law. Riley, and actively participated in the proceedings. On November 27,
1951, the Superior Court of the State of California, for the County of
All of the remaining clauses of said will with all their dispositions and San Diego found all factual allegations to be true and issued an
requests are perfectly valid and effective it not appearing that said interlocutory judgment of divorce.11
clauses are contrary to the testator's national law.
On December 4, 1952, the divorce decree became final. 12
Therefore, the orders appealed from are modified and it is directed that
the distribution of this estate be made in such a manner as to include In the meantime, Lorenzo returned to the Philippines.
the herein appellant Andre Brimo as one of the legatees, and the
scheme of partition submitted by the judicial administrator is approved On January 16, 1958, Lorenzo married Alicia F. Llorente in
in all other respects, without any pronouncement as to costs. So Manila.13 Apparently, Alicia had no knowledge of the first marriage
ordered. even if they resided in the same town as Paula, who did not oppose the
marriage or cohabitation.14

From 1958 to 1985, Lorenzo and Alicia lived together as husband and
wife.15 Their twenty-five (25) year union produced three children,
Raul, Luz and Beverly, all surnamed Llorente.16

20
On March 13, 1981, Lorenzo executed a Last Will and Testament. The
will was notarized by Notary Public Salvador M. Occiano, duly signed On November 6, 13 and 20, 1985, the order was published in the
by Lorenzo with attesting witnesses Francisco Hugo, Francisco newspaper "Bicol Star".26
Neibres and Tito Trajano. In the will, Lorenzo bequeathed all his
property to Alicia and their three children, to wit: On May 18, 1987, the Regional Trial Court issued a joint decision,
"(1) I give and bequeath to my wife ALICIA R. FORTUNO thus:
exclusively my residential house and lot, located at San "Wherefore, considering that this court has so found that the divorce
Francisco, Nabua, Camarines Sur, Philippines, including decree granted to the late Lorenzo Llorente is void and inapplicable in
ALL the personal properties and other movables or the Philippines, therefore the marriage he contracted with Alicia
belongings that may be found or existing therein; Fortunato on January 16, 1958 at Manila is likewise void. This being
so the petition of Alicia F. Llorente for the issuance of letters
"(2) I give and bequeath exclusively to my wife Alicia R. testamentary is denied. Likewise, she is not entitled to receive any
Fortuno and to my children, Raul F. Llorente, Luz F. share from the estate even if the will especially said so her relationship
Llorente and Beverly F. Llorente, in equal shares, all my real with Lorenzo having gained the status of paramour which is under Art.
properties whatsoever and wheresoever located, specifically 739 (1).
my real properties located at Barangay Aro-Aldao, Nabua,
Camarines Sur; Barangay Paloyon, Nabua, Camarines Sur; "On the other hand, the court finds the petition of Paula Titular
Barangay Baras, Sitio Puga, Nabua, Camarines Sur; and Llorente, meritorious, and so declares the intrinsic disposition of the
Barangay Paloyon, Sitio Nalilidong, Nabua, Camarines Sur; will of Lorenzo Llorente dated March 13, 1981 as void and declares
her entitled as conjugal partner and entitled to one-half of their
"(3) I likewise give and bequeath exclusively unto my wife conjugal properties, and as primary compulsory heir, Paula T. Llorente
Alicia R. Fortuno and unto my children, Raul F. Llorente, is also entitled to one-third of the estate and then one-third should go
Luz F. Llorente and Beverly F. Llorente, in equal shares, my to the illegitimate children, Raul, Luz and Beverly, all surname (sic)
real properties located in Quezon City Philippines, and Llorente, for them to partition in equal shares and also entitled to the
covered by Transfer Certificate of Title No. 188652; and my remaining free portion in equal shares.
lands in Antipolo, Rizal, Philippines, covered by Transfer
Certificate of Title Nos. 124196 and 165188, both of the "Petitioner, Paula Llorente is appointed legal administrator of the
Registry of Deeds of the province of Rizal, Philippines; estate of the deceased, Lorenzo Llorente. As such let the corresponding
letters of administration issue in her favor upon her filing a bond in the
"(4) That their respective shares in the above-mentioned amount (sic) of P100,000.00 conditioned for her to make a return to
properties, whether real or personal properties, shall not be the court within three (3) months a true and complete inventory of all
disposed of, ceded, sold and conveyed to any other persons, goods, chattels, rights, and credits, and estate which shall at any time
but could only be sold, ceded, conveyed and disposed of by come to her possession or to the possession of any other person for her,
and among themselves; and from the proceeds to pay and discharge all debts, legacies and
charges on the same, or such dividends thereon as shall be decreed or
"(5) I designate my wife ALICIA R. FORTUNO to be the required by this court; to render a true and just account of her
sole executor of this my Last Will and Testament, and in her administration to the court within one (1) year, and at any other time
default or incapacity of the latter to act, any of my children when required by the court and to perform all orders of this court by
in the order of age, if of age; her to be performed.

"(6) I hereby direct that the executor named herein or her "On the other matters prayed for in respective petitions for want of
lawful substitute should served (sic) without bond; evidence could not be granted.
"SO ORDERED."27
"(7) I hereby revoke any and all my other wills, codicils, or
testamentary dispositions heretofore executed, signed, or In time, Alicia filed with the trial court a motion for reconsideration of
published, by me; the aforequoted decision.28

"(8) It is my final wish and desire that if I die, no relatives of On September 14, 1987, the trial court denied Alicias motion for
mine in any degree in the Llorentes Side should ever bother reconsideration but modified its earlier decision, stating that Raul and
and disturb in any manner whatsoever my wife Alicia R. Luz Llorente are not children "legitimate or otherwise" of Lorenzo
Fortunato and my children with respect to any real or since they were not legally adopted by him.29 Amending its decision
personal properties I gave and bequeathed respectively to of May 18, 1987, the trial court declared Beverly Llorente as the only
each one of them by virtue of this Last Will and illegitimate child of Lorenzo, entitling her to one-third (1/3) of the
Testament."17 estate and one-third (1/3) of the free portion of the estate.30

On December 14, 1983, Lorenzo filed with the Regional Trial Court, On September 28, 1987, respondent appealed to the Court of
Iriga, Camarines Sur, a petition for the probate and allowance of his Appeals.31
last will and testament wherein Lorenzo moved that Alicia be
appointed Special Administratrix of his estate.18 On July 31, 1995, the Court of Appeals promulgated its decision,
affirming with modification the decision of the trial court in this wise:
On January 18, 1984, the trial court denied the motion for the reason "WHEREFORE, the decision appealed from is hereby AFFIRMED
that the testator Lorenzo was still alive.19 with the MODIFICATION that Alicia is declared as co-owner of
whatever properties she and the deceased may have acquired during
On January 24, 1984, finding that the will was duly executed, the trial the twenty-five (25) years of cohabitation.
court admitted the will to probate.20 "SO ORDERED."32

On June 11, 1985, before the proceedings could be terminated, On August 25, 1995, petitioner filed with the Court of Appeals a
Lorenzo died.21 motion for reconsideration of the decision.33

On September 4, 1985, Paula filed with the same court a petition22 for On March 21, 1996, the Court of Appeals,34 denied the motion for lack
letters of administration over Lorenzos estate in her favor. Paula of merit.
contended (1) that she was Lorenzos surviving spouse, (2) that the
various property were acquired during their marriage, (3) that Hence, this petition.35
Lorenzos will disposed of all his property in favor of Alicia and her
children, encroaching on her legitime and 1/2 share in the conjugal The Issue
property.23 Stripping the petition of its legalese and sorting through the various
arguments raised,36 the issue is simple. Who are entitled to inherit from
On December 13, 1985, Alicia filed in the testate proceeding (Sp. Proc. the late Lorenzo N. Llorente?
No. IR-755), a petition for the issuance of letters testamentary.24
We do not agree with the decision of the Court of Appeals. We remand
On October 14, 1985, without terminating the testate proceedings, the the case to the trial court for ruling on the intrinsic validity of the will
trial court gave due course to Paulas petition in Sp. Proc. No. IR- of the deceased.
888.25

21
The Applicable Law Philippines insofar as respondent is concerned in view of the
The fact that the late Lorenzo N. Llorente became an American citizen nationality principle in our civil law on the status of persons.
long before and at the time of: (1) his divorce from Paula; (2) marriage
to Alicia; (3) execution of his will; and (4) death, is duly established, For failing to apply these doctrines, the decision of the Court of
admitted and undisputed. Appeals must be reversed.43 We hold that the divorce obtained by
Lorenzo H. Llorente from his first wife Paula was valid and recognized
Thus, as a rule, issues arising from these incidents are necessarily in this jurisdiction as a matter of comity. Now, the effects of this
governed by foreign law. divorce (as to the succession to the estate of the decedent) are matters
best left to the determination of the trial court.
The Civil Code clearly provides:
"Art. 15. Laws relating to family rights and duties, or to the status, Validity of the Will
condition and legal capacity of persons are binding upon citizens of The Civil Code provides:
the Philippines, even though living abroad. "Art. 17. The forms and solemnities of contracts, wills, and other
public instruments shall be governed by the laws of the country in
"Art. 16. Real property as well as personal property is subject to the which they are executed.
law of the country where it is situated.
"When the acts referred to are executed before the diplomatic or
"However, intestate and testamentary succession, both with respect to consular officials of the Republic of the Philippines in a foreign
the order of succession and to the amount of successional rights and to country, the solemnities established by Philippine laws shall be
the intrinsic validity of testamentary provisions, shall be regulated by observed in their execution." (underscoring ours)
the national law of the person whose succession is under
consideration, whatever may be the nature of the property and The clear intent of Lorenzo to bequeath his property to his second wife
regardless of the country wherein said property may be found." and children by her is glaringly shown in the will he executed. We do
(emphasis ours) not wish to frustrate his wishes, since he was a foreigner, not covered
by our laws on "family rights and duties, status, condition and legal
True, foreign laws do not prove themselves in our jurisdiction and our capacity."44
courts are not authorized to take judicial notice of them. Like any other
fact, they must be alleged and proved.37 Whether the will is intrinsically valid and who shall inherit from
Lorenzo are issues best proved by foreign law which must be pleaded
While the substance of the foreign law was pleaded, the Court of and proved. Whether the will was executed in accordance with the
Appeals did not admit the foreign law. The Court of Appeals and the formalities required is answered by referring to Philippine law. In fact,
trial court called to the fore the renvoi doctrine, where the case was the will was duly probated.
"referred back" to the law of the decedents domicile, in this case, As a guide however, the trial court should note that whatever public
Philippine law. policy or good customs may be involved in our system of legitimes,
Congress did not intend to extend the same to the succession of foreign
We note that while the trial court stated that the law of New York was nationals. Congress specifically left the amount of successional rights
not sufficiently proven, in the same breath it made the categorical, to the decedent's national law.45
albeit equally unproven statement that "American law follows the
domiciliary theory hence, Philippine law applies when determining Having thus ruled, we find it unnecessary to pass upon the other issues
the validity of Lorenzos will.38 raised.

First, there is no such thing as one American law. The "national law" The Fallo
indicated in Article 16 of the Civil Code cannot possibly apply to WHEREFORE, the petition is GRANTED. The decision of the Court
general American law. There is no such law governing the validity of of Appeals in CA-G. R. SP No. 17446 promulgated on July 31, 1995
testamentary provisions in the United States. Each State of the union is SET ASIDE.
has its own law applicable to its citizens and in force only within the
State. It can therefore refer to no other than the law of the State of In lieu thereof, the Court REVERSES the decision of the Regional
which the decedent was a resident.39 Second, there is no showing that Trial Court and RECOGNIZES as VALID the decree of divorce
the application of the renvoi doctrine is called for or required by New granted in favor of the deceased Lorenzo N. Llorente by the Superior
York State law. Court of the State of California in and for the County of San Diego,
made final on December 4, 1952.
The trial court held that the will was intrinsically invalid since it
contained dispositions in favor of Alice, who in the trial courts Further, the Court REMANDS the cases to the court of origin for
opinion was a mere paramour. The trial court threw the will out, determination of the intrinsic validity of Lorenzo N. Llorentes will
leaving Alice, and her two children, Raul and Luz, with nothing. and determination of the parties successional rights allowing proof of
foreign law with instructions that the trial court shall proceed with all
The Court of Appeals also disregarded the will. It declared Alice deliberate dispatch to settle the estate of the deceased within the
entitled to one half (1/2) of whatever property she and Lorenzo framework of the Rules of Court. No costs. SO ORDERED.
acquired during their cohabitation, applying Article 144 of the Civil
Code of the Philippines. G.R. No. 108581 December 8, 1999
The hasty application of Philippine law and the complete disregard of LOURDES L. DOROTHEO, petitioner, vs.
the will, already probated as duly executed in accordance with the COURT OF APPEALS, NILDA D. QUINTANA, for Herself and
formalities of Philippine law, is fatal, especially in light of the factual as Attorney-in-Fact of VICENTE DOROTHEO and JOSE
and legal circumstances here obtaining. DOROTHEO, respondents.
Validity of the Foreign Divorce YNARES-SANTIAGO, J.:
In Van Dorn v. Romillo, Jr.40 we held that owing to the nationality
principle embodied in Article 15 of the Civil Code, only Philippine May a last will and testament admitted to probate but declared
nationals are covered by the policy against absolute divorces, the same intrinsically void in an order that has become final and executory still
being considered contrary to our concept of public policy and morality. be given effect? This is the issue that arose from the following
In the same case, the Court ruled that aliens may obtain divorces antecedents:
abroad, provided they are valid according to their national law.
Private respondents were the legitimate children of Alejandro
Citing this landmark case, the Court held in Quita v. Court of Dorotheo and Aniceta Reyes. The latter died in 1969 without her estate
Appeals,41 that once proven that respondent was no longer a Filipino being settled. Alejandro died thereafter. Sometime in 1977, after
citizen when he obtained the divorce from petitioner, the ruling in Van Alejandro's death, petitioner, who claims to have taken care of
Dorn would become applicable and petitioner could "very well lose Alejandro before he died, filed a special proceeding for the probate of
her right to inherit" from him. the latter's last will and testament. In 1981, the court issued an order
admitting Alejandro's will to probate. Private respondents did not
In Pilapil v. Ibay-Somera,42 we recognized the divorce obtained by the appeal from said order. In 1983, they filed a "Motion To Declare The
respondent in his country, the Federal Republic of Germany. There, Will Intrinsically Void." The trial court granted the motion and issued
we stated that divorce and its legal effects may be recognized in the an order, the dispositive portion of which reads:
22
WHEREFORE, in view of the foregoing, Order is hereby 3. On the testamentary capacity of the testator; 8
issued declaring Lourdes Legaspi not the wife of the late 4. On and the due execution of the last will and
Alejandro Dorotheo, the provisions of the last will and testament. 9
testament of Alejandro Dorotheo as intrinsically void, and
declaring the oppositors Vicente Dorotheo, Jose Dorotheo Under the Civil Code, due execution includes a determination of
and Nilda Dorotheo Quintana as the only heirs of the late whether the testator was of sound and disposing mind at the time of its
spouses Alejandro Dorotheo and Aniceta Reyes, whose execution, that he had freely executed the will and was not acting under
respective estates shall be liquidated and distributed duress, fraud, menace or undue influence and that the will is genuine
according to the laws on intestacy upon payment of estate and not a forgery, 10 that he was of the proper testamentary age and
and other taxes due to the government. 1 that he is a person not expressly prohibited by law from making a
will. 11
Petitioner moved for reconsideration arguing that she is entitled to
some compensation since she took care of Alejandro prior to his death The intrinsic validity is another matter and questions regarding the
although she admitted that they were not married to each other. Upon same may still be raised even after the will has been
denial of her motion for reconsideration, petitioner appealed to the authenticated. 12 Thus, it does not necessarily follow that an
Court of Appeals, but the same was dismissed for failure to file extrinsically valid last will and testament is always intrinsically valid.
appellant's brief within the extended period granted. 2 This dismissal Even if the will was validly executed, if the testator provides for
became final and executory on February 3, 1989 and a corresponding dispositions that deprives or impairs the lawful heirs of their legitime
entry of judgment was forthwith issued by the Court of Appeals on or rightful inheritance according to the laws on succession, 13 the
May 16, 1989. A writ of execution was issued by the lower court to unlawful provisions/dispositions thereof cannot be given effect. This
implement the final and executory Order. Consequently, private is specially so when the courts had already determined in a final and
respondents filed several motions including a motion to compel executory decision that the will is intrinsically void. Such
petitioner to surrender to them the Transfer Certificates of Titles (TCT) determination having attained that character of finality is binding on
covering the properties of the late Alejandro. When petitioner refused this Court which will no longer be disturbed. Not that this Court finds
to surrender the TCT's, private respondents filed a motion for the will to be intrinsically valid, but that a final and executory decision
cancellation of said titles and for issuance of new titles in their names. of which the party had the opportunity to challenge before the higher
Petitioner opposed the motion. tribunals must stand and should no longer be reevaluated. Failure to
avail of the remedies provided by law constitutes waiver. And if the
An Order was issued on November 29, 1990 by Judge Zain B. Angas party does not avail of other remedies despite its belief that it was
setting aside the final and executory Order dated January 30, 1986, as aggrieved by a decision or court action, then it is deemed to have fully
well as the Order directing the issuance of the writ of execution, on the agreed and is satisfied with the decision or order. As early as 1918, it
ground that the order was merely "interlocutory", hence not final in has been declared that public policy and sound practice demand that,
character. The court added that the dispositive portion of the said Order at the risk of occasional errors, judgments of courts must at some point
even directs the distribution of the estate of the deceased spouses. of time fixed by law 14 become final otherwise there will be no end to
Private respondents filed a motion for reconsideration which was litigation. Interes rei publicae ut finis sit litium the very object of
denied in an Order dated February 1, 1991. Thus, private respondents which the courts were constituted was to put an end to
filed a petition before the Court of Appeals, which nullified the two controversies. 15 To fulfill this purpose and to do so speedily, certain
assailed Orders dated November 29, 1990 and February 1, 1991. time limits, more or less arbitrary, have to be set up to spur on the
slothful. 16 The only instance where a party interested in a probate
Aggrieved, petitioner instituted a petition for review arguing that the proceeding may have a final liquidation set aside is when he is left out
case filed by private respondents before the Court of Appeals was a by reason of circumstances beyond his control or through mistake or
petition under Rule 65 on the ground of grave abuse of discretion or inadvertence not imputable to negligence, 17 which circumstances do
lack of jurisdiction. Petitioner contends that in issuing the two assailed not concur herein.
orders, Judge Angas cannot be said to have no jurisdiction because he
was particularly designated to hear the case. Petitioner likewise assails Petitioner was privy to the suit calling for the declaration of the
the Order of the Court of Appeals upholding the validity of the January intrinsic invalidity of the will, as she precisely appealed from an
30, 1986 Order which declared the intrinsic invalidity of Alejandro's unfavorable order therefrom. Although the final and executory Order
will that was earlier admitted to probate. of January 30, 1986 wherein private respondents were declared as the
only heirs do not bind those who are not parties thereto such as the
Petitioner also filed a motion to reinstate her as executrix of the estate alleged illegitimate son of the testator, the same constitutes res
of the late Alejandro and to maintain the status quo or lease of the judicata with respect to those who were parties to the probate
premises thereon to third parties. 3 Private respondents opposed the proceedings. Petitioner cannot again raise those matters anew for
motion on the ground that petitioner has no interest in the estate since relitigation otherwise that would amount to forum-shopping. It should
she is not the lawful wife of the late Alejandro. be remembered that forum shopping also occurs when the same issue
had already been resolved adversely by some other court. 18 It is clear
The petition is without merit. A final and executory decision or order from the executory order that the estates of Alejandro and his spouse
can no longer be disturbed or reopened no matter how erroneous it may should be distributed according to the laws of intestate succession.
be. In setting aside the January 30, 1986 Order that has attained
finality, the trial court in effect nullified the entry of judgment made Petitioner posits that the January 30, 1986 Order is merely
by the Court of Appeals. It is well settled that a lower court cannot interlocutory, hence it can still be set aside by the trial court. In support
reverse or set aside decisions or orders of a superior court, for to do so thereof, petitioner argues that "an order merely declaring who are heirs
would be to negate the hierarchy of courts and nullify the essence of and the shares to which set of heirs is entitled cannot be the basis of
review. It has been ruled that a final judgment on probated will, albeit execution to require delivery of shares from one person to another
erroneous, is binding on the whole world. 4 particularly when no project of partition has been filed." 19 The trial
court declared in the January 30, 1986 Order that petitioner is not the
It has been consistently held that if no appeal is taken in due time from legal wife of Alejandro, whose only heirs are his three legitimate
a judgment or order of the trial court, the same attains finality by mere children (petitioners herein), and at the same time it nullified the will.
lapse of time. Thus, the order allowing the will became final and the But it should be noted that in the same Order, the trial court also said
question determined by the court in such order can no longer be raised that the estate of the late spouses be distributed according to the laws
anew, either in the same proceedings or in a different motion. The of intestacy. Accordingly, it has no option but to implement that order
matters of due execution of the will and the capacity of the testator of intestate distribution and not to reopen and again re-examine the
acquired the character of res judicata and cannot again be brought into intrinsic provisions of the same will.
question, all juridical questions in connection therewith being for once
and forever closed. 5 Such final order makes the will conclusive against It can be clearly inferred from Article 960 of the Civil Code, on the
the whole world as to its extrinsic validity and due execution. 6 law of successional rights that testacy is preferred to intestacy. 20 But
before there could be testate distribution, the will must pass the
It should be noted that probate proceedings deals generally with the scrutinizing test and safeguards provided by law considering that the
extrinsic validity of the will sought to be probated, 7 particularly on deceased testator is no longer available to prove the voluntariness of
three aspects: his actions, aside from the fact that the transfer of the estate is usually
1. On whether the will submitted is indeed, the decedent's onerous in nature and that no one is presumed to give Nemo
last will and testament; praesumitur donare. 21 No intestate distribution of the estate can be
2. On compliance with the prescribed formalities for the done until and unless the will had failed to pass both its extrinsic and
execution of wills; intrinsic validity. If the will is extrinsically void, the rules of intestacy

23
apply regardless of the intrinsic validity thereof. If it is extrinsically amount of P40,000.00 each or a total of P120,000.00. In the project of
valid, the next test is to determine its intrinsic validity that is partition, the executor pursuant to the "Twelfth" clause of the
whether the provisions of the will are valid according to the laws of testator's Last Will and Testament divided the residuary estate into
succession. In this case, the court had ruled that the will of Alejandro seven equal portions for the benefit of the testator's seven legitimate
was extrinsically valid but the intrinsic provisions thereof were void. children by his first and second marriages.
Thus, the rules of intestacy apply as correctly held by the trial court.
On January 17, 1964, Maria Cristina Bellis and Miriam Palma Bellis
Furthermore, Alejandro's disposition in his will of the alleged share in filed their respective oppositions to the project of partition on the
the conjugal properties of his late spouse, whom he described as his ground that they were deprived of their legitimes as illegitimate
"only beloved wife", is not a valid reason to reverse a final and children and, therefore, compulsory heirs of the deceased.
executory order. Testamentary dispositions of properties not belonging
exclusively to the testator or properties which are part of the conjugal Amos Bellis, Jr. interposed no opposition despite notice to him, proof
regime cannot be given effect. Matters with respect to who owns the of service of which is evidenced by the registry receipt submitted on
properties that were disposed of by Alejandro in the void will may still April 27, 1964 by the executor.1
be properly ventilated and determined in the intestate proceedings for
the settlement of his and that of his late spouse's estate. After the parties filed their respective memoranda and other pertinent
pleadings, the lower court, on April 30, 1964, issued an order
Petitioner's motion for appointment as administratrix is rendered moot overruling the oppositions and approving the executor's final account,
considering that she was not married to the late Alejandro and, report and administration and project of partition. Relying upon Art.
therefore, is not an heir. 16 of the Civil Code, it applied the national law of the decedent, which
in this case is Texas law, which did not provide for legitimes.
WHEREFORE, the petition is DENIED and the decision appealed
from is AFFIRMED. SO ORDERED. Their respective motions for reconsideration having been denied by the
lower court on June 11, 1964, oppositors-appellants appealed to this
G.R. No. L-23678 June 6, 1967 Court to raise the issue of which law must apply Texas law or
Philippine law.
TESTATE ESTATE OF AMOS G. BELLIS, deceased.
PEOPLE'S BANK and TRUST COMPANY, executor. In this regard, the parties do not submit the case on, nor even discuss,
MARIA CRISTINA BELLIS and MIRIAM PALMA the doctrine of renvoi, applied by this Court in Aznar v. Christensen
BELLIS, oppositors-appellants, vs. Garcia, L-16749, January 31, 1963. Said doctrine is usually pertinent
EDWARD A. BELLIS, ET AL., heirs-appellees. where the decedent is a national of one country, and a domicile of
another. In the present case, it is not disputed that the decedent was
BENGZON, J.P., J.: both a national of Texas and a domicile thereof at the time of his
death.2 So that even assuming Texas has a conflict of law rule
This is a direct appeal to Us, upon a question purely of law, from an providing that the domiciliary system (law of the domicile) should
order of the Court of First Instance of Manila dated April 30, 1964, govern, the same would not result in a reference back (renvoi) to
approving the project of partition filed by the executor in Civil Case Philippine law, but would still refer to Texas law. Nonetheless, if
No. 37089 therein.1wph1.t Texas has a conflicts rule adopting the situs theory (lex rei sitae)
calling for the application of the law of the place where the properties
The facts of the case are as follows: are situated, renvoi would arise, since the properties here involved are
Amos G. Bellis, born in Texas, was "a citizen of the State of Texas and found in the Philippines. In the absence, however, of proof as to the
of the United States." By his first wife, Mary E. Mallen, whom he conflict of law rule of Texas, it should not be presumed different from
divorced, he had five legitimate children: Edward A. Bellis, George ours.3 Appellants' position is therefore not rested on the doctrine of
Bellis (who pre-deceased him in infancy), Henry A. Bellis, Alexander renvoi. As stated, they never invoked nor even mentioned it in their
Bellis and Anna Bellis Allsman; by his second wife, Violet Kennedy, arguments. Rather, they argue that their case falls under the
who survived him, he had three legitimate children: Edwin G. Bellis, circumstances mentioned in the third paragraph of Article 17 in
Walter S. Bellis and Dorothy Bellis; and finally, he had three relation to Article 16 of the Civil Code.
illegitimate children: Amos Bellis, Jr., Maria Cristina Bellis and
Miriam Palma Bellis. Article 16, par. 2, and Art. 1039 of the Civil Code, render applicable
the national law of the decedent, in intestate or testamentary
On August 5, 1952, Amos G. Bellis executed a will in the Philippines, successions, with regard to four items: (a) the order of succession; (b)
in which he directed that after all taxes, obligations, and expenses of the amount of successional rights; (e) the intrinsic validity of the
administration are paid for, his distributable estate should be divided, provisions of the will; and (d) the capacity to succeed. They provide
in trust, in the following order and manner: (a) $240,000.00 to his first that
wife, Mary E. Mallen; (b) P120,000.00 to his three illegitimate ART. 16. Real property as well as personal property is
children, Amos Bellis, Jr., Maria Cristina Bellis, Miriam Palma Bellis, subject to the law of the country where it is situated.
or P40,000.00 each and (c) after the foregoing two items have been However, intestate and testamentary successions, both with
satisfied, the remainder shall go to his seven surviving children by his respect to the order of succession and to the amount of
first and second wives, namely: Edward A. Bellis, Henry A. Bellis, successional rights and to the intrinsic validity of
Alexander Bellis and Anna Bellis Allsman, Edwin G. Bellis, Walter S. testamentary provisions, shall be regulated by the national
Bellis, and Dorothy E. Bellis, in equal shares.1wph1.t law of the person whose succession is under consideration,
whatever may he the nature of the property and regardless of
Subsequently, or on July 8, 1958, Amos G. Bellis died a resident of the country wherein said property may be found.
San Antonio, Texas, U.S.A. His will was admitted to probate in the ART. 1039. Capacity to succeed is governed by the law of
Court of First Instance of Manila on September 15, 1958. the nation of the decedent.

The People's Bank and Trust Company, as executor of the will, paid Appellants would however counter that Art. 17, paragraph three, of the
all the bequests therein including the amount of $240,000.00 in the Civil Code, stating that
form of shares of stock to Mary E. Mallen and to the three (3) Prohibitive laws concerning persons, their acts or property,
illegitimate children, Amos Bellis, Jr., Maria Cristina Bellis and and those which have for their object public order, public
Miriam Palma Bellis, various amounts totalling P40,000.00 each in policy and good customs shall not be rendered ineffective by
satisfaction of their respective legacies, or a total of P120,000.00, laws or judgments promulgated, or by determinations or
which it released from time to time according as the lower court conventions agreed upon in a foreign country.
approved and allowed the various motions or petitions filed by the prevails as the exception to Art. 16, par. 2 of the Civil Code afore-
latter three requesting partial advances on account of their respective quoted. This is not correct. Precisely, Congress deleted the phrase,
legacies. "notwithstanding the provisions of this and the next preceding article"
when they incorporated Art. 11 of the old Civil Code as Art. 17 of the
On January 8, 1964, preparatory to closing its administration, the new Civil Code, while reproducing without substantial change the
executor submitted and filed its "Executor's Final Account, Report of second paragraph of Art. 10 of the old Civil Code as Art. 16 in the new.
Administration and Project of Partition" wherein it reported, inter alia, It must have been their purpose to make the second paragraph of Art.
the satisfaction of the legacy of Mary E. Mallen by the delivery to her 16 a specific provision in itself which must be applied in testate and
of shares of stock amounting to $240,000.00, and the legacies of Amos intestate succession. As further indication of this legislative intent,
Bellis, Jr., Maria Cristina Bellis and Miriam Palma Bellis in the Congress added a new provision, under Art. 1039, which decrees that

24
capacity to succeed is to be governed by the national law of the the testator and the witnesses; that Seor Marco gave the document to
decedent. 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 is therefore evident that whatever public policy or good customs may it in the presence of the testator and each other.
be involved in our System of legitimes, Congress has not intended to
extend the same to the succession of foreign nationals. For it has These are the facts of record with reference to the execution of the will
specifically chosen to leave, inter alia, the amount of successional and we are in perfect accord with the judgment of the lower court that
rights, to the decedent's national law. Specific provisions must prevail the formalities of the Code of Civil Procedure have been fully
over general ones. complied with.

Appellants would also point out that the decedent executed two wills This brings us now to a consideration of appellants' second assignment
one to govern his Texas estate and the other his Philippine estate of error, viz, the testator's alleged mental incapacity at the time of the
arguing from this that he intended Philippine law to govern his execution of the will. Upon this point considerable evidence was
Philippine estate. Assuming that such was the decedent's intention in adduced at the trial. One of the attesting witnesses testified that at the
executing a separate Philippine will, it would not alter the law, for as time of the execution of the will the testator was in his right mind, and
this Court ruled in Miciano v. Brimo, 50 Phil. 867, 870, a provision in that although he was seriously ill, he indicated by movements of his
a foreigner's will to the effect that his properties shall be distributed in head what his wishes were. Another of the attesting witnesses stated
accordance with Philippine law and not with his national law, is illegal that he was not able to say whether decedent had the full use of his
and void, for his national law cannot be ignored in regard to those mental faculties or not, because he had been ill for some years, and that
matters that Article 10 now Article 16 of the Civil Code states he (the witnesses) was not a physician. The other subscribing witness,
said national law should govern. Pedro Paguio, testified in the lower court as a witness for the
The parties admit that the decedent, Amos G. Bellis, was a citizen of opponents. He was unable to state whether or not the will was the wish
the State of Texas, U.S.A., and that under the laws of Texas, there are of the testator. The only reasons he gave for his statement were the
no forced heirs or legitimes. Accordingly, since the intrinsic validity infirmity and advanced age of the testator and the fact that he was
of the provision of the will and the amount of successional rights are unable to speak. The witness stated that the testator signed the will,
to be determined under Texas law, the Philippine law on legitimes and he verified his own signature as a subscribing witness.
cannot be applied to the testacy of Amos G. Bellis.
Florentino Ramos, although not an attesting witness, stated that he was
Wherefore, the order of the probate court is hereby affirmed in toto, present when the will was executed and his testimony was cumulative
with costs against appellants. So ordered. 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
G.R. No. L-6801 March 14, 1912 he had frequently transacted matters of business for the decedent and
had written letters and made inventories of his property at his request,
JULIANA BAGTAS, plaintiffs-appellee, vs. and that immediately before and after the execution of the will he had
ISIDRO PAGUIO, ET AL., defendants-appellants. performed offices of his character. He stated that the decedent was able
TRENT, J.: to communicate his thoughts by writing. The testimony of this witness
clearly indicates the presence of mental capacity on the part of the
This is an appeal from an order of the Court of First Instance of the testator. Among other witnesses for the opponents were two physician,
Province of Bataan, admitting to probate a document which was Doctor Basa and Doctor Viado. Doctor Basa testified that he had
offered as the last will and testament of Pioquinto Paguio y Pizarro. attended the testator some four or five years prior to his death and that
The will purports to have been executed in the pueblo of Pilar, the latter had suffered from a cerebral congestion from which the
Province of Bataan, on the 19th day of April, 1908. The testator died paralysis resulted. The following question was propounded to Doctor
on the 28th of September, 1909, a year and five months following the Basa:
date of the execution of the will. The will was propounded by the Q. Referring to mental condition in which you found him
executrix, Juliana Bagtas, widow of the decedent, and the opponents the last time you attended him, do you think he was in his
are a son and several grandchildren by a former marriage, the latter right mind?
being the children of a deceased daughter. A. I can not say exactly whether he was in his right mind,
but I noted some mental disorder, because when I spoke to
The basis of the opposition to the probation of the will is that the same him he did not answer me.
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 Doctor Basa testified at more length, but the substance of his testimony
enjoyment and use of his mental faculties and was without the mental is that the testator had suffered a paralysis and that he had noticed some
capacity necessary to execute a valid will. 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
The record shows that the testator, Pioquinto Paguio, for some fourteen opinion that he was without the necessary mental capacity to make a
of fifteen years prior to the time of his death suffered from a paralysis valid will. He did not state in what way this mental disorder had
of the left side of his body; that a few years prior to his death his manifested itself other than that he had noticed that the testator did not
hearing became impaired and that he lost the power of speech. Owing reply to him on one occasion when he visited him.
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, Doctor Viado, the other physician, have never seen the testator, but his
and was able to write fairly well. Through the medium of signs he was answer was in reply to a hypothetical question as to what be the mental
able to indicate his wishes to his wife and to other members of his condition of a person who was 79 years old and who had suffered from
family. a malady such as the testator was supposed to have had according to
the testimony of Doctor Basa, whose testimony Doctor Viado had
At the time of the execution of the will there were present the four heard. He replied and discussed at some length the symptoms and
testamentary witnesses, Agustin Paguio, Anacleto Paguio, and Pedro consequences of the decease from which the testator had suffered; he
Paguio, and attorney, Seor Marco, and one Florentino Ramos. read in support of his statements from a work by a German Physician,
Anacleto Paguio and the attorney have since died, and consequently Dr. Herman Eichost. In answer, however, to a direct question, he stated
their testimony was not available upon the trial of the case in the lower that he would be unable to certify to the mental condition of a person
court. The other three testamentary witnesses and the witness who was suffering from such a disease.
Florentino Ramos testified as to the manner in which the will was
executed. According to the uncontroverted testimony of these We do not think that the testimony of these two physicians in any way
witnesses the will was executed in the following manner: strengthens the contention of the appellants. Their testimony only
confirms the fact that the testator had been for a number of years prior
Pioquinto Paguio, the testator, wrote out on pieces of paper notes and to his death afflicted with paralysis, in consequence of which his
items relating to the disposition of his property, and these notes were physician and mental strength was greatly impaired. Neither of them
in turn delivered to Seor Marco, who transcribed them and put them attempted to state what was the mental condition of the testator at the
in form. The witnesses testify that the pieces of paper upon which the time he executed the will in question. There can be no doubt that the
notes were written are delivered to attorney by the testator; that the testator's infirmities were of a very serious character, and it is quite
attorney read them to the testator asking if they were his testamentary evident that his mind was not as active as it had been in the earlier
dispositions; that the testator assented each time with an affirmative years of his life. However, we can not include from this that he wanting
movement of his head; that after the will as a whole had been thus in the necessary mental capacity to dispose of his property by will.
written by the attorney, it was read in a loud voice in the presence of
25
The courts have been called upon frequently to nullify wills executed questions in conversation; and sometimes, when aroused for
under such circumstances, but the weight of the authority is in support sleep or slumber, would seem bewildered. It is not singular
if the principle that it is only when those seeking to overthrow the will that some of those who had known him when he was
have clearly established the charge of mental incapacity that the courts remarkable for vigor and intelligence, are of the opinion that
will intervene to set aside a testamentary document of this character. his reason was so far gone that he was incapable of making
In the case of Bugnao vs. Ubag (14 Phil. Rep., 163), the question of a will, although they never heard him utter an irrational
testamentary capacity was discussed by this court. The numerous expression.
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 In the above case the will was sustained. In the case at bar we might
jurisdiction the presumption of law is in favor of the mental capacity draw the same contrast as was pictured by the court in the case just
of the testator and the burden is upon the contestants of the will to quoted. The striking change in the physical and mental vigor of the
prove the lack of testamentary capacity. 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
The rule of law relating to the presumption of mental soundness is well capacity to make a will, yet we think that the statements of the
established, and the testator in the case at bar never having been witnesses to the execution of the will and statements of the conduct of
adjudged insane by a court of competent jurisdiction, this presumption the testator at that time all indicate that he unquestionably had mental
continues, and it is therefore incumbent upon the opponents to capacity and that he exercised it on this occasion. At the time of the
overcome this legal presumption by proper evidence. This we think execution of the will it does not appear that his conduct was irrational
they have failed to do. There are many cases and authorities which we in any particular. He seems to have comprehended clearly what the
might cite to show that the courts have repeatedly held that mere nature of the business was in which he was engaged. The evidence
weakness of mind and body, induced by age and disease do not render show that the writing and execution of the will occupied a period
a person incapable of making a will. The law does not require that a several hours and that the testator was present during all this time,
person shall continue in the full enjoyment and use of his pristine taking an active part in all the proceedings. Again, the will in the case
physical and mental powers in order to execute a valid will. If such at bar is perfectly reasonable and its dispositions are those of a rational
were the legal standard, few indeed would be the number of wills that person.
could meet such exacting requirements. The authorities, both medical
and legal, are universal in statement that the question of mental For the reasons above stated, the order probating the will should be and
capacity is one of degree, and that there are many gradations from the the same is hereby affirmed, with costs of this instance against the
highest degree of mental soundness to the lowest conditions of appellants.
diseased mentality which are denominated as insanity and idiocy.
G.R. No. 174489 April 11, 2012
The right to dispose of property by testamentary disposition is as
sacred as any other right which a person may exercise and this right ANTONIO B. BALTAZAR, SEBASTIAN M. BALTAZAR,
should not be nullified unless mental incapacity is established in a ANTONIO L. MANGALINDAN, ROSIE M. MATEO, NENITA
positive and conclusive manner. In discussing the question of A. PACHECO, VIRGILIO REGALA, JR., and RAFAEL
testamentary capacity, it is stated in volume 28, 70, of the American TITCO, Petitioners, vs.
and English Encyclopedia of Law, that LORENZO LAXA, Respondent.
Contrary to the very prevalent lay impression, perfect
soundness of mind is not essential to testamentary capacity. DECISION
A testator may be afflicted with a variety of mental DEL CASTILLO, J.:
weaknesses, disorders, or peculiarities and still be capable in
law of executing a valid will. (See the numerous cases there It is incumbent upon those who oppose the probate of a will to clearly
cited in support of this statement.) 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
The rule relating to testamentary capacity is stated in Buswell on to give full effect to the wishes of the testator to distribute his estate in
Insanity, section 365, and quoted with approval in Campbell vs. the manner provided in his will so long as it is legally tenable.1
Campbell (130 Ill., 466), as follows:
To constitute a sound and disposing mind, it is not necessary Before us is a Petition for Review on Certiorari2 of the June 15, 2006
that the mind shall be wholly unbroken, unimpaired, or Decision3 of the Court of Appeals (CA) in CA-G.R. CV No. 80979
unshattered by disease or otherwise, or that the testator which reversed the September 30, 2003 Decision 4 of the Regional
should be in the full possession of his reasoning faculties. Trial Court (RTC), Branch 52, Guagua, Pampanga in Special
Proceedings No. G-1186. The assailed CA Decision granted the
In note, 1 Jarman on Wills, 38, the rule is thus stated: petition for probate of the notarial will of Paciencia Regala (Paciencia),
The question is not so much, that was the degree of memory to wit:
possessed by the testator, as, had he a disposing memory?
Was he able to remember the property he was about to WHEREFORE, premises considered, finding the appeal to be
bequeath, the manner of disturbing it, and the objects of his impressed with merit, the decision in SP. PROC. NO. G-1186 dated 30
bounty? In a word, were his mind and memory sufficiently September 2003, is hereby SET ASIDE and a new one entered
sound to enable him to know and understand the business in GRANTING the petition for the probate of the will of PACIENCIA
which he was engaged at the time when he executed his will. REGALA.
(See authorities there cited.) SO ORDERED.5
In Wilson vs. Mitchell (101 Penn., 495), the following facts appeared Also assailed herein is the August 31, 2006 CA Resolution 6 which
upon the trial of the case: The testator died at the age of nearly 102 denied the Motion for Reconsideration thereto.
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 Petitioners call us to reverse the CAs assailed Decision and instead
from that time his mind and memory were mush enfeebled. He became affirm the Decision of the RTC which disallowed the notarial will of
very dull of hearing and in consequence of the shrinking of his brain Paciencia.
he was affected with senile cataract causing total blindness. He became
filthy and obscene in his habits, although formerly he was observant of Factual Antecedents
the properties of life. The court, in commenting upon the case, said: Paciencia was a 78 year old spinster when she made her last will and
Neither age, nor sickness, nor extreme distress, nor debility testament entitled "Tauli Nang Bilin o Testamento Miss Paciencia
of body will affect the capacity to make a will, if sufficient Regala"7 (Will) in the Pampango dialect on September 13, 1981. The
intelligence remains. The failure of memory is not sufficient Will, executed in the house of retired Judge Ernestino G. Limpin
to create the incapacity, unless it be total, or extend to his (Judge Limpin), was read to Paciencia twice. After which, Paciencia
immediate family or property. . . . expressed in the presence of the instrumental witnesses that the
xxx xxx xxx document is her last will and testament. She thereafter affixed her
Dougal (the testator) had lived over one hundred years signature at the end of the said document on page 38 and then on the
before he made the will, and his physical and mental left margin of pages 1, 2 and 4 thereof.9
weakness and defective memory were in striking contrast
with their strength in the meridian of his life. He was blind; The witnesses to the Will were Dra. Maria Lioba A. Limpin (Dra.
not deaf, but hearing impaired; his mind acted slowly, he was Limpin), Francisco Garcia (Francisco) and Faustino R. Mercado
forgetful or recent events, especially of names, and repeated (Faustino). The three attested to the Wills due execution by affixing
26
their signatures below its attestation clause10 and on the left margin of Later still on September 26, 2000, petitioners filed an Amended
pages 1, 2 and 4 thereof,11 in the presence of Paciencia and of one Opposition28 asking the RTC to deny the probate of Paciencias Will
another and of Judge Limpin who acted as notary public. on the following grounds: the Will was not executed and attested to in
accordance with the requirements of the law; that Paciencia was
Childless and without any brothers or sisters, Paciencia bequeathed all mentally incapable to make a Will at the time of its execution; that she
her properties to respondent Lorenzo R. Laxa (Lorenzo) and his wife was forced to execute the Will under duress or influence of fear or
Corazon F. Laxa and their children Luna Lorella Laxa and Katherine threats; that the execution of the Will had been procured by undue and
Ross Laxa, thus: improper pressure and influence by Lorenzo or by some other persons
xxxx for his benefit; that the signature of Paciencia on the Will was forged;
Fourth - In consideration of their valuable services to me since then up that assuming the signature to be genuine, it was obtained through
to the present by the spouses LORENZO LAXA and CORAZON F. fraud or trickery; and, that Paciencia did not intend the document to be
LAXA, I hereby BEQUEATH, CONVEY and GIVE all my properties her Will. Simultaneously, petitioners filed an Opposition and
enumerated in parcels 1 to 5 unto the spouses LORENZO R. LAXA Recommendation29 reiterating their opposition to the appointment of
and CORAZON F. LAXA and their children, LUNA LORELLA Lorenzo as administrator of the properties and requesting for the
LAXA and KATHERINE LAXA, and the spouses Lorenzo R. Laxa appointment of Antonio in his stead.
and Corazon F. Laxa both of legal age, Filipinos, presently residing at
Barrio Sta. Monica, [Sasmuan], Pampanga and their children, LUNA On January 29, 2001, the RTC issued an Order30 denying the requests
LORELLA and KATHERINE ROSS LAXA, who are still not of legal of both Lorenzo and Antonio to be appointed administrator since the
age and living with their parents who would decide to bequeath since former is a citizen and resident of the USA while the latters claim as
they are the children of the spouses; a co-owner of the properties subject of the Will has not yet been
xxxx established.
[Sixth] - Should other properties of mine may be discovered aside from
the properties mentioned in this last will and testament, I am also Meanwhile, proceedings on the petition for the probate of the Will
bequeathing and giving the same to the spouses Lorenzo R. Laxa and continued. Dra. Limpin was recalled for cross-examination by the
Corazon F. Laxa and their two children and I also command them to petitioners. She testified as to the age of her father at the time the latter
offer masses yearly for the repose of my soul and that of D[]a notarized the Will of Paciencia; the living arrangements of Paciencia
Nicomeda Regala, Epifania Regala and their spouses and with respect at the time of the execution of the Will; and the lack of photographs
to the fishpond situated at San Antonio, I likewise command to fulfill when the event took place. 31
the wishes of D[]a Nicomeda Regala in accordance with her
testament as stated in my testament. x x x12 Aside from Dra. Limpin, Lorenzo and Monico Mercado (Monico) also
took the witness stand. Monico, son of Faustino, testified on his
The filial relationship of Lorenzo with Paciencia remains undisputed. fathers condition. According to him his father can no longer talk and
Lorenzo is Paciencias nephew whom she treated as her own son. express himself due to brain damage. A medical certificate was
Conversely, Lorenzo came to know and treated Paciencia as his own presented to the court to support this allegation. 32
mother.13Paciencia lived with Lorenzos family in Sasmuan,
Pampanga and it was she who raised and cared for Lorenzo since his For his part, Lorenzo testified that: from 1944 until his departure for
birth. Six days after the execution of the Will or on September 19, the USA in April 1980, he lived in Sasmuan, Pampanga with his family
1981, Paciencia left for the United States of America (USA). There, and his aunt, Paciencia; in 1981 Paciencia went to the USA and lived
she resided with Lorenzo and his family until her death on January 4, with him and his family until her death in January 1996; the
1996. 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
In the interim, the Will remained in the custody of Judge Limpin. an adopted son; Paciencia was a spinster without children, and without
brothers and sisters; at the time of Paciencias death, she did not suffer
More than four years after the death of Paciencia or on April 27, 2000, from any mental disorder and was of sound mind, was not blind, deaf
Lorenzo filed a petition14 with the RTC of Guagua, Pampanga for the or mute; the Will was in the custody of Judge Limpin and was only
probate of the Will of Paciencia and for the issuance of Letters of given to him after Paciencias death through Faustino; and he was
Administration in his favor, docketed as Special Proceedings No. G- already residing in the USA when the Will was executed.33 Lorenzo
1186. positively identified the signature of Paciencia in three different
documents and in the Will itself and stated that he was familiar with
There being no opposition to the petition after its due publication, the Paciencias signature because he accompanied her in her
RTC issued an Order on June 13, 200015allowing Lorenzo to present transactions.34 Further, Lorenzo belied and denied having used force,
evidence on June 22, 2000. On said date, Dra. Limpin testified that she intimidation, violence, coercion or trickery upon Paciencia to execute
was one of the instrumental witnesses in the execution of the last will the Will as he was not in the Philippines when the same was
and testament of Paciencia on September 13, 1981. 16The Will was executed.35 On cross-examination, Lorenzo clarified that Paciencia
executed in her fathers (Judge Limpin) home office, in her presence informed him about the Will shortly after her arrival in the USA but
and of two other witnesses, Francisco and Faustino.17 Dra. Limpin that he saw a copy of the Will only after her death.36
positively identified the Will and her signatures on all its four
pages.18 She likewise positively identified the signature of her father As to Francisco, he could no longer be presented in court as he already
appearing thereon.19 Questioned by the prosecutor regarding Judge died on May 21, 2000.
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 For petitioners, Rosie testified that her mother and Paciencia were first
walk but can no longer talk and remember her name. Because of this, cousins.37 She claimed to have helped in the household chores in the
Dra. Limpin stated that her father can no longer testify in court. 21 house of Paciencia thereby allowing her to stay therein from morning
until evening and that during the period of her service in the said
The following day or on June 23, 2000, petitioner Antonio Baltazar household, Lorenzos wife and his children were staying in the same
(Antonio) filed an opposition22 to Lorenzos petition. Antonio averred house.38 She served in the said household from 1980 until Paciencias
that the properties subject of Paciencias Will belong to Nicomeda departure for the USA on September 19, 1981.39
Regala Mangalindan, his predecessor-in-interest; hence, Paciencia had
no right to bequeath them to Lorenzo.23 On September 13, 1981, Rosie claimed that she saw Faustino bring
"something" for Paciencia to sign at the latters house.40 Rosie
Barely a month after or on July 20, 2000, Antonio, now joined by admitted, though, that she did not see what that "something" was as
petitioners Sebastian M. Baltazar, Virgilio Regala, Jr., Nenita A. same was placed inside an envelope.41 However, she remembered
Pacheco, Felix B. Flores, Rafael Titco, Rosie M. Mateo (Rosie) and Paciencia instructing Faustino to first look for money before she signs
Antonio L. Mangalindan filed a Supplemental them.42 A few days after or on September 16, 1981, Paciencia went to
Opposition24 contending that Paciencias Will was null and void the house of Antonios mother and brought with her the said
because ownership of the properties had not been transferred and/or envelope.43 Upon going home, however, the envelope was no longer
titled to Paciencia before her death pursuant to Article 1049, paragraph with Paciencia.44Rosie further testified that Paciencia was referred to
3 of the Civil Code.25 Petitioners also opposed the issuance of Letters as "magulyan" or "forgetful" because she would sometimes leave her
of Administration in Lorenzos favor arguing that Lorenzo was wallet in the kitchen then start looking for it moments later.45 On cross
disqualified to be appointed as such, he being a citizen and resident of examination, it was established that Rosie was neither a doctor nor a
the USA.26Petitioners prayed that Letters of Administration be instead psychiatrist, that her conclusion that Paciencia was "magulyan" was
issued in favor of Antonio.27 based on her personal assessment,46 and that it was Antonio who
requested her to testify in court.47

27
Faithful compliance with the formalities laid down by law is apparent
In his direct examination, Antonio stated that Paciencia was his from the face of the Will.
aunt.48 He identified the Will and testified that he had seen the said
document before because Paciencia brought the same to his mothers Courts are tasked to determine nothing more than the extrinsic validity
house and showed it to him along with another document on of a Will in probate proceedings.64 This is expressly provided for in
September 16, 1981.49 Antonio alleged that when the documents were Rule 75, Section 1 of the Rules of Court, which states:
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 Rule 75
rice lands,51 and it was he who explained that the documents were Production of Will. Allowance of Will Necessary.
actually a special power of attorney to lease and sell her fishpond and Section 1. Allowance necessary. Conclusive as to execution. No will
other properties upon her departure for the USA, and a Will which shall pass either real or personal estate unless it is proved and allowed
would transfer her properties to Lorenzo and his family upon her in the proper court. Subject to the right of appeal, such allowance of
death.52 Upon hearing this, Paciencia allegedly uttered the following the will shall be conclusive as to its due execution.
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 Due execution of the will or its extrinsic validity pertains to whether
[who should] benefit from my properties. Why should I die the testator, being of sound mind, freely executed the will in
already?"53 Thereafter, Antonio advised Paciencia not to sign the accordance with the formalities prescribed by law.65 These formalities
documents if she does not want to, to which the latter purportedly are enshrined in Articles 805 and 806 of the New Civil Code, to wit:
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 Art. 805. Every will, other than a holographic will, must be subscribed
documents with Antonio. Antonio kept the unsigned documents and at the end thereof by the testator himself or by the testator's name
eventually turned them over to Faustino on September 18, 1981. 55 written by some other person in his presence, and by his express
direction, and attested and subscribed by three or more credible
Ruling of the Regional Trial Court witnesses in the presence of the testator and of one another.
On September 30, 2003, the RTC rendered its Decision 56 denying the
petition thus: The testator or the person requested by him to write his name and the
WHEREFORE, this court hereby (a) denies the petition instrumental witnesses of the will, shall also sign, as aforesaid, each
dated April 24, 2000; and (b) disallows the notarized will and every page thereof, except the last, on the left margin, and all the
dated September 13, 1981 of Paciencia Regala. SO pages shall be numbered correlatively in letters placed on the upper
ORDERED.57 part of each page.

The trial court gave considerable weight to the testimony of Rosie and The attestation shall state the number of pages used upon which the
concluded that at the time Paciencia signed the Will, she was no longer will is written, and the fact that the testator signed the will and every
possessed of sufficient reason or strength of mind to have testamentary page thereof, or caused some other person to write his name, under his
capacity.58 express direction, in the presence of the instrumental witnesses, and
that the latter witnessed and signed the will and all the pages thereof in
Ruling of the Court of Appeals the presence of the testator and of one another.
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 If the attestation clause is in a language not known to the witnesses, it
RTCs conclusion that Paciencia was of unsound mind when she shall be interpreted to them.
executed the Will. It ratiocinated that "the state of being magulyan
does not make a person mentally unsound so [as] to render [Paciencia] Art. 806. Every will must be acknowledged before a notary public by
unfit for executing a Will."59 Moreover, the oppositors in the probate the testator and the witnesses. The notary public shall not be required
proceedings were not able to overcome the presumption that every to retain a copy of the will, or file another with the Office of the Clerk
person is of sound mind. Further, no concrete circumstances or events of Court.
were given to prove the allegation that Paciencia was tricked or forced
into signing the Will.60 Here, a careful examination of the face of the Will shows faithful
compliance with the formalities laid down by law. The signatures of
Petitioners moved for reconsideration61 but the motion was denied by the testatrix, Paciencia, her instrumental witnesses and the notary
the CA in its Resolution62 dated August 31, 2006. public, are all present and evident on the Will. Further, the attestation
clause explicitly states the critical requirement that the testatrix and her
Hence, this petition. instrumental witnesses signed the Will in the presence of one another
and that the witnesses attested and subscribed to the Will in the
Issues presence of the testator and of one another. In fact, even the petitioners
Petitioners come before this Court by way of Petition for Review on acceded that the signature of Paciencia in the Will may be authentic
Certiorari ascribing upon the CA the following errors: although they question her state of mind when she signed the same as
I. well as the voluntary nature of said act.
THE HONORABLE COURT OF APPEALS SERIOUSLY
ERRED WHEN IT ALLOWED THE PROBATE OF The burden to prove that Paciencia was of unsound mind at the time of
PACIENCIAS WILL DESPITE RESPONDENTS the execution of the will lies on the shoulders of the petitioners.
UTTER FAILURE TO COMPLY WITH SECTION 11,
RULE 76 OF THE RULES OF COURT; Petitioners, through their witness Rosie, claim that Paciencia was
"magulyan" or forgetful so much so that it effectively stripped her of
II. testamentary capacity. They likewise claimed in their Motion for
THE HONORABLE COURT OF APPEALS GRAVELY Reconsideration66 filed with the CA that Paciencia was not only
ERRED IN MAKING CONCLUSIONS NOT IN "magulyan" but was actually suffering from paranoia.67
ACCORDANCE WITH THE EVIDENCE ON RECORD;
We are not convinced.
III.
THE HONORABLE COURT OF APPEALS GRAVELY We agree with the position of the CA that the state of being forgetful
ERRED IN RULING THAT PETITIONERS FAILED TO does not necessarily make a person mentally unsound so as to render
PROVE THAT PACIENCIA WAS NOT OF SOUND him unfit to execute a Will.68 Forgetfulness is not equivalent to being
MIND AT THE TIME THE WILL WAS ALLEGEDLY of unsound mind. Besides, Article 799 of the New Civil Code states:
EXECUTED63
Art. 799. To be of sound mind, it is not necessary that the testator be
The pivotal issue is whether the authenticity and due execution of the in full possession of all his reasoning faculties, or that his mind be
notarial Will was sufficiently established to warrant its allowance for wholly unbroken, unimpaired, or unshattered by disease, injury or
probate. other cause.

Our Ruling It shall be sufficient if the testator was able at the time of making the
We deny the petition. 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.

28
In this case, apart from the testimony of Rosie pertaining to Paciencias allegations.71 Furthermore, "a purported will is not [to be] denied
forgetfulness, there is no substantial evidence, medical or otherwise, legalization on dubious grounds. Otherwise, the very institution of
that would show that Paciencia was of unsound mind at the time of the testamentary succession will be shaken to its foundation, for even if a
execution of the Will. On the other hand, we find more worthy of will has been duly executed in fact, whether x x x it will be probated
credence Dra. Limpins testimony as to the soundness of mind of would have to depend largely on the attitude of those interested in [the
Paciencia when the latter went to Judge Limpins house and estate of the deceased]."72
voluntarily executed the Will. "The testimony of subscribing witnesses
to a Will concerning the testators mental condition is entitled to great Court should be convinced by the evidence presented before it that the
weight where they are truthful and intelligent."69 More importantly, a Will was duly executed.
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. Petitioners dispute the authenticity of Paciencias Will on the ground
Article 800 of the New Civil Code states: that Section 11 of Rule 76 of the Rules of Court was not complied with.
It provides:
Art. 800. The law presumes that every person is of sound mind, in the
absence of proof to the contrary. RULE 76
Allowance or Disallowance of Will
The burden of proof that the testator was not of sound mind at the time Section 11. Subscribing witnesses produced or accounted for where
of making his dispositions is on the person who opposes the probate of will contested. If the will is contested, all the subscribing witnesses,
the will; but if the testator, one month, or less, before making his will and the notary in the case of wills executed under the Civil Code of the
was publicly known to be insane, the person who maintains the validity Philippines, if present in the Philippines and not insane, must be
of the will must prove that the testator made it during a lucid interval. 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
Here, there was no showing that Paciencia was publicly known to be witnesses are present in the Philippines but outside the province where
insane one month or less before the making of the Will. Clearly, thus, the will has been filed, their deposition must be taken. If any or all of
the burden to prove that Paciencia was of unsound mind lies upon the them testify against the due execution of the will, or do not remember
shoulders of petitioners. However and as earlier mentioned, no having attested to it, or are otherwise of doubtful credibility, the will
substantial evidence was presented by them to prove the same, thereby may nevertheless, be allowed if the court is satisfied from the
warranting the CAs finding that petitioners failed to discharge such testimony of other witnesses and from all the evidence presented that
burden. the will was executed and attested in the manner required by law.

Furthermore, we are convinced that Paciencia was aware of the nature If a holographic will is contested, the same shall be allowed if at least
of her estate to be disposed of, the proper objects of her bounty and the three (3) witnesses who know the handwriting of the testator explicitly
character of the testamentary act. As aptly pointed out by the CA: 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
A scrutiny of the Will discloses that [Paciencia] was aware of the deem it necessary, expert testimony may be resorted to. (Emphasis
nature of the document she executed. She specially requested that the supplied.)
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 They insist that all subscribing witnesses and the notary public should
she is bequeathing to LORENZO, to his wife CORAZON and to his have been presented in court since all but one witness, Francisco, are
two (2) children. A third child was born after the execution of the will still living.
and was not included therein as devisee.70
We cannot agree with petitioners.
Bare allegations of duress or influence of fear or threats, undue and
improper influence and pressure, fraud and trickery cannot be used as We note that the inability of Faustino and Judge Limpin to appear and
basis to deny the probate of a will. testify before the court was satisfactorily explained during the probate
proceedings. As testified to by his son, Faustino had a heart attack, was
An essential element of the validity of the Will is the willingness of already bedridden and could no longer talk and express himself due to
the testator or testatrix to execute the document that will distribute brain damage. To prove this, said witness presented the corresponding
his/her earthly possessions upon his/her death. Petitioners claim that medical certificate. For her part, Dra. Limpin testified that her father,
Paciencia was forced to execute the Will under duress or influence of Judge Limpin, suffered a stroke in 1991 and had to undergo brain
fear or threats; that the execution of the Will had been procured by surgery. At that time, Judge Limpin could no longer talk and could not
undue and improper pressure and influence by Lorenzo or by some even remember his daughters name so that Dra. Limpin stated that
other persons for his benefit; and that assuming Paciencias signature given such condition, her father could no longer testify. It is well to
to be genuine, it was obtained through fraud or trickery. These are note that at that point, despite ample opportunity, petitioners neither
grounded on the alleged conversation between Paciencia and Antonio interposed any objections to the testimonies of said witnesses nor
on September 16, 1981 wherein the former purportedly repudiated the challenged the same on cross examination. We thus hold that for all
Will and left it unsigned. intents and purposes, Lorenzo was able to satisfactorily account for the
incapacity and failure of the said subscribing witness and of the notary
We are not persuaded. public to testify in court. Because of this the probate of Paciencias
Will may be allowed on the basis of Dra. Limpins testimony proving
We take into consideration the unrebutted fact that Paciencia loved and her sanity and the due execution of the Will, as well as on the proof of
treated Lorenzo as her own son and that love even extended to her handwriting. It is an established rule that "[a] testament may not be
Lorenzos wife and children. This kind of relationship is not unusual. disallowed just because the attesting witnesses declare against its due
It is in fact not unheard of in our culture for old maids or spinsters to execution; neither does it have to be necessarily allowed just because
care for and raise their nephews and nieces and treat them as their own all the attesting witnesses declare in favor of its legalization; what is
children. Such is a prevalent and accepted cultural practice that has decisive is that the court is convinced by evidence before it, not
resulted in many family discords between those favored by the necessarily from the attesting witnesses, although they must testify,
testamentary disposition of a testator and those who stand to benefit in that the will was or was not duly executed in the manner required by
case of intestacy. law."731wphi1

In this case, evidence shows the acknowledged fact that Paciencias Moreover, it bears stressing that "[i]rrespective x x x of the posture of
relationship with Lorenzo and his family is different from her any of the parties as regards the authenticity and due execution of the
relationship with petitioners. The very fact that she cared for and raised will x x x in question, it is the mandate of the law that it is the evidence
Lorenzo and lived with him both here and abroad, even if the latter was before the court and/or [evidence that] ought to be before it that is
already married and already has children, highlights the special bond controlling."74 "The very existence of [the Will] is in itself prima facie
between them. This unquestioned relationship between Paciencia and proof that the supposed [testatrix] has willed that [her] estate be
the devisees tends to support the authenticity of the said document as distributed in the manner therein provided, and it is incumbent upon
against petitioners allegations of duress, influence of fear or threats, the state that, if legally tenable, such desire be given full effect
undue and improper influence, pressure, fraud, and trickery which, independent of the attitude of the parties affected thereby."75 This,
aside from being factual in nature, are not supported by concrete, coupled with Lorenzos established relationship with Paciencia, the
substantial and credible evidence on record. It is worth stressing that evidence and the testimonies of disinterested witnesses, as opposed to
bare arguments, no matter how forceful, if not based on concrete and the total lack of evidence presented by petitioners apart from their self-
substantial evidence cannot suffice to move the Court to uphold said

29
serving testimonies, constrain us to tilt the balance in favor of the
authenticity of the Will and its allowance for probate. PATUNAY NG MGA SAKSI
Ang kasulatang ito, na binubuo ng ____ dahon pati ang huling dahong
WHEREFORE, the petition is DENIED. The Decision dated June 15, ito, na ipinahayag sa amin ni Eugenia E. Igsolo, tagapagmana na siya
2006 and the Resolution dated August 31, 2006 of the Court of Appeals niyang Huling Habilin, ngayon ika-10 ng Hunyo 1981, ay nilagdaan
in CA-G.R. CV No. 80979 are AFFIRMED. SO ORDERED. ng nasabing tagapagmana sa ilalim ng kasulatang nabanggit at sa
kaliwang panig ng lahat at bawat dahon, sa harap ng lahat at bawat
G.R. No. 122880 April 12, 2006 sa amin, at kami namang mga saksi ay lumagda sa harap ng nasabing
tagapagmana at sa harap ng lahat at bawat isa sa amin, sa ilalim ng
FELIX AZUELA, Petitioner, vs. nasabing kasulatan at sa kaliwang panig ng lahat at bawat dahon ng
COURT OF APPEALS, GERALDA AIDA CASTILLO kasulatan ito.
substituted by ERNESTO G. CASTILLO, Respondents. EUGENIA E. IGSOLO
address: 500 San Diego St.
DECISION Sampaloc, Manila Res. Cert. No. A-7717-37
TINGA, J.: Issued at Manila on March 10, 1981.

The core of this petition is a highly defective notarial will, purportedly QUIRINO AGRAVA
executed by Eugenia E. Igsolo (decedent), who died on 16 December address: 1228-Int. 3, Kahilum
1982 at the age of 80. In refusing to give legal recognition to the due Pandacan, Manila Res. Cert. No. A-458365
execution of this document, the Court is provided the opportunity to Issued at Manila on Jan. 21, 1981
assert a few important doctrinal rules in the execution of notarial wills,
all self-evident in view of Articles 805 and 806 of the Civil Code. LAMBERTO C. LEAO
address: Avenue 2, Blcok 7,
A will whose attestation clause does not contain the number of Lot 61, San Gabriel, G.MA., Cavite Res.
pages on which the will is written is fatally defective. A will whose Cert. No. A-768277 issued at Carmona, Cavite on Feb. 7, 1981
attestation clause is not signed by the instrumental witnesses is
fatally defective. And perhaps most importantly, a will which does JUANITO ESTRERA
not contain an acknowledgment, but a mere jurat, is fatally address: City Court Compound,
defective. Any one of these defects is sufficient to deny probate. A City of Manila Res. Cert. No. A574829
notarial will with all three defects is just aching for judicial Issued at Manila on March 2, 1981.
rejection.
There is a distinct and consequential reason the Civil Code provides a Nilagdaan ko at ninotario ko ngayong 10 ng Hunyo 10, 1981 dito sa
comprehensive catalog of imperatives for the proper execution of a Lungsod ng Maynila.
notarial will. Full and faithful compliance with all the detailed
requisites under Article 805 of the Code leave little room for doubt as (Sgd.)
to the validity in the due execution of the notarial will. Article 806 PETRONIO Y. BAUTISTA
likewise imposes another safeguard to the validity of notarial wills Doc. No. 1232 ; NOTARIO PUBLIKO
that they be acknowledged before a notary public by the testator and Page No. 86 ; Until Dec. 31, 1981
the witnesses. A notarial will executed with indifference to these two Book No. 43 ; PTR-152041-1/2/81-Manila
codal provisions opens itself to nagging questions as to its legitimacy. Series of 1981 TAN # 1437-977-81

The case stems from a petition for probate filed on 10 April 1984 with The three named witnesses to the will affixed their signatures on the
the Regional Trial Court (RTC) of Manila. The petition filed by left-hand margin of both pages of the will, but not at the bottom of the
petitioner Felix Azuela sought to admit to probate the notarial will of attestation clause.
Eugenia E. Igsolo, which was notarized on 10 June 1981. Petitioner is
the son of the cousin of the decedent. The probate petition adverted to only two (2) heirs, legatees and
devisees of the decedent, namely: petitioner himself, and one Irene
The will, consisting of two (2) pages and written in the vernacular Lynn Igsolo, who was alleged to have resided abroad. Petitioner
Pilipino, read in full: prayed that the will be allowed, and that letters testamentary be issued
to the designated executor, Vart Prague.
HULING HABILIN NI EUGENIA E. IGSOLO The petition was opposed by Geralda Aida Castillo (Geralda Castillo),
SA NGALAN NG MAYKAPAL, AMEN: who represented herself as the attorney-in-fact of "the 12 legitimate
AKO, si EUGENIA E. IGSOLO, nakatira sa 500 San Diego St., heirs" of the decedent.2 Geralda Castillo claimed that the will is a
Sampaloc, Manila, pitongput siyam (79) na gulang, nasa hustong pagi- forgery, and that the true purpose of its emergence was so it could be
isip, pag-unawa at memoria ay nag-hahayag na ito na ang aking huling utilized as a defense in several court cases filed by oppositor against
habilin at testamento, at binabali wala ko lahat ang naunang ginawang petitioner, particularly for forcible entry and usurpation of real
habilin o testamento: property, all centering on petitioners right to occupy the properties of
the decedent.3 It also asserted that contrary to the representations of
Una-Hinihiling ko na ako ay mailibing sa Sementerio del Norte, La petitioner, the decedent was actually survived by 12 legitimate heirs,
Loma sang-ayong sa kaugalian at patakaran ng simbahang katoliko at namely her grandchildren, who were then residing abroad. Per records,
ang taga-pag-ingat (Executor) ng habiling ito ay magtatayo ng it was subsequently alleged that decedent was the widow of Bonifacio
bantayog upang silbing ala-ala sa akin ng aking pamilya at kaibigan; Igsolo, who died in 1965,4 and the mother of a legitimate child,
Asuncion E. Igsolo, who predeceased her mother by three (3) months.5
Pangalawa-Aking ipinagkakaloob at isinasalin ang lahat ng karapatan Oppositor Geralda Castillo also argued that the will was not executed
sa aking pamangkin na si Felix Azuela, na siyang nag-alaga sa akin sa and attested to in accordance with law. She pointed out that decedents
mahabang panahon, yaong mga bahay na nakatirik sa lote numero 28, signature did not appear on the second page of the will, and the will
Block 24 at nakapangalan sa Pechaten Korporasyon, ganoon din was not properly acknowledged. These twin arguments are among the
ibinibigay ko ang lahat ng karapatan sa bahay na nakatirik sa central matters to this petition.
inoopahan kong lote, numero 43, Block 24 na pag-aari ng Pechaten
Corporation. Ipinagkakaloob kong buong buo ang lahat ng karapatan After due trial, the RTC admitted the will to probate, in an Order dated
sa bahay at lupa na nasa 500 San Diego St., Lot 42, Block 24, 10 August 1992.6 The RTC favorably took into account the testimony
Sampaloc, Manila kay Felix Azuela at ang pagkakaloob kong ito ay of the three (3) witnesses to the will, Quirino Agrava, Lamberto Leano,
walang pasubalit at kondiciones; and Juanito Estrada. The RTC also called to fore "the modern tendency
in respect to the formalities in the execution of a will x x x with the
Pangatlo- Na ninunumbrahan ko si VART PAGUE na siyang end in view of giving the testator more freedom in expressing his last
nagpapatupad ng huling habiling ito at kagustuhan ko rin na hindi na wishes;"7 and from this perspective, rebutted oppositors arguments
kailanman siyang mag-lagak ng piyansiya. that the will was not properly executed and attested to in accordance
with law.
Aking nilagdaan ang Huling Habilin na ito dito sa Maynila ika 10 ng
Hunyo, 1981. After a careful examination of the will and consideration of the
(Sgd.) testimonies of the subscribing and attesting witnesses, and having in
EUGENIA E. IGSOLO mind the modern tendency in respect to the formalities in the execution
(Tagapagmana) of a will, i.e., the liberalization of the interpretation of the law on the

30
formal requirements of a will with the end in view of giving the testator
more freedom in expressing his last wishes, this Court is persuaded to If the attestation clause is in a language not known to the witnesses, it
rule that the will in question is authentic and had been executed by the shall be interpreted to them.
testatrix in accordance with law.
Art. 806. Every will must be acknowledged before a notary public by
On the issue of lack of acknowledgement, this Court has noted that at the testator and the witnesses. The notary public shall not be required
the end of the will after the signature of the testatrix, the following to retain a copy of the will, or file another with the office of the Clerk
statement is made under the sub-title, "Patunay Ng Mga Saksi": of Court.

"Ang kasulatang ito, na binubuo ng _____ dahon pati ang huling The appellate court, in its Decision, considered only one defect, the
dahong ito, na ipinahayag sa amin ni Eugenia N. Igsolo, tagapagmana failure of the attestation clause to state the number of pages of the will.
na siya niyang Huling Habilin, ngayong ika-10 ng Hunyo 1981, ay But an examination of the will itself reveals several more deficiencies.
nilagdaan ng nasabing tagapagmana sa ilalim ng kasulatang nabanggit
at sa kaliwang panig ng lahat at bawat dahon, sa harap ng lahat at As admitted by petitioner himself, the attestation clause fails to state
bawat sa amin, at kami namang mga saksi ay lumagda sa harap ng the number of pages of the will.12 There was an incomplete attempt to
nasabing tagapagmana at sa harap ng lahat at bawat isa sa amin, sa comply with this requisite, a space having been allotted for the
ilalim ng nasabing kasulatan at sa kaliwang panig ng lahat at bawat insertion of the number of pages in the attestation clause. Yet the blank
dahon ng kasulatan ito." was never filled in; hence, the requisite was left uncomplied with.
The aforequoted declaration comprises the attestation clause and the
acknowledgement and is considered by this Court as a substantial The Court of Appeals pounced on this defect in reversing the trial
compliance with the requirements of the law. court, citing in the process Uy Coque v. Navas L. Sioca13 and In re:
Will of Andrada.14 In Uy Coque, the Court noted that among the
On the oppositors contention that the attestation clause was not signed defects of the will in question was the failure of the attestation clause
by the subscribing witnesses at the bottom thereof, this Court is of the to state the number of pages contained in the will.15 In ruling that the
view that the signing by the subscribing witnesses on the left margin will could not be admitted to probate, the Court made the following
of the second page of the will containing the attestation clause and consideration which remains highly relevant to this day: "The purpose
acknowledgment, instead of at the bottom thereof, substantially of requiring the number of sheets to be stated in the attestation clause
satisfies the purpose of identification and attestation of the will. is obvious; the document might easily be so prepared that the
removal of a sheet would completely change the testamentary
With regard to the oppositors argument that the will was not numbered dispositions of the will and in the absence of a statement of the total
correlatively in letters placed on upper part of each page and that the number of sheets such removal might be effected by taking out the
attestation did not state the number of pages thereof, it is worthy to sheet and changing the numbers at the top of the following sheets
note that the will is composed of only two pages. The first page or pages. If, on the other hand, the total number of sheets is stated in
contains the entire text of the testamentary dispositions, and the second the attestation clause the falsification of the document will involve the
page contains the last portion of the attestation clause and inserting of new pages and the forging of the signatures of the testator
acknowledgement. Such being so, the defects are not of a serious and witnesses in the margin, a matter attended with much greater
nature as to invalidate the will. For the same reason, the failure of the difficulty."16
testatrix to affix her signature on the left margin of the second page,
which contains only the last portion of the attestation clause and The case of In re Will of Andrada concerned a will the attestation
acknowledgment is not a fatal defect. clause of which failed to state the number of sheets or pages used. This
consideration alone was sufficient for the Court to declare
As regards the oppositors assertion that the signature of the testatrix "unanim[ity] upon the point that the defect pointed out in the attesting
on the will is a forgery, the testimonies of the three subscribing clause is fatal."17 It was further observed that "it cannot be denied that
witnesses to the will are convincing enough to establish the the x x x requirement affords additional security against the danger that
genuineness of the signature of the testatrix and the due execution of the will may be tampered with; and as the Legislature has seen fit to
the will.8 prescribe this requirement, it must be considered material."18

The Order was appealed to the Court of Appeals by Ernesto Castillo, Against these cited cases, petitioner cites Singson v.
who had substituted his since deceased mother-in-law, Geralda Florentino19 and Taboada v. Hon. Rosal,20 wherein the Court allowed
Castillo. In a Decision dated 17 August 1995, the Court of Appeals probate to the wills concerned therein despite the fact that the
reversed the trial court and ordered the dismissal of the petition for attestation clause did not state the number of pages of the will. Yet the
probate.9 The Court of Appeals noted that the attestation clause failed appellate court itself considered the import of these two cases, and
to state the number of pages used in the will, thus rendering the will made the following distinction which petitioner is unable to rebut, and
void and undeserving of probate.10 which we adopt with approval:
Even a cursory examination of the Will (Exhibit "D"), will readily
Hence, the present petition. show that the attestation does not state the number of pages used upon
which the will is written. Hence, the Will is void and undeserving of
Petitioner argues that the requirement under Article 805 of the Civil probate.
Code that "the number of pages used in a notarial will be stated in the
attestation clause" is merely directory, rather than mandatory, and thus We are not impervious of the Decisions of the Supreme Court in
susceptible to what he termed as "the substantial compliance rule."11 "Manuel Singson versus Emilia Florentino, et al., 92 Phil. 161 and
Apolonio [Taboada] versus Hon. Avelino Rosal, et al., 118 SCRA
The solution to this case calls for the application of Articles 805 and 195," to the effect that a will may still be valid even if the attestation
806 of the Civil Code, which we replicate in full. does not contain the number of pages used upon which the Will is
written. However, the Decisions of the Supreme Court are not
Art. 805. Every will, other than a holographic will, must be subscribed applicable in the aforementioned appeal at bench. This is so because,
at the end thereof by the testator himself or by the testator's name in the case of "Manuel Singson versus Emilia Florentino, et al., supra,"
written by some other person in his presence, and by his express although the attestation in the subject Will did not state the number of
direction, and attested and subscribed by three or more credible pages used in the will, however, the same was found in the last part of
witnesses in the presence of the testator and of one another. the body of the Will:
"x x x
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 The law referred to is article 618 of the Code of Civil Procedure, as
and every page thereof, except the last, on the left margin, and all the amended by Act No. 2645, which requires that the attestation clause
pages shall be numbered correlatively in letters placed on the upper shall state the number of pages or sheets upon which the will is written,
part of each page. which requirement has been held to be mandatory as an effective
safeguard against the possibility of interpolation or omission of some
The attestation shall state the number of pages used upon which the of the pages of the will to the prejudice of the heirs to whom the
will is written, and the fact that the testator signed the will and every property is intended to be bequeathed (In re Will of Andrada, 42 Phil.
page thereof, or caused some other person to write his name, under his 180; Uy Coque vs. Navas L. Sioca, 43 Phil., 405; Gumban vs. Gorcho,
express direction, in the presence of the instrumental witnesses, and 50 Phil. 30; Quinto vs. Morata, 54 Phil. 481; Echevarria vs. Sarmiento,
that the latter witnessed and signed the will and all the pages thereof in 66 Phil. 611). The ratio decidendi of these cases seems to be that the
the presence of the testator and of one another. attestation clause must contain a statement of the number of sheets or

31
pages composing the will and that if this is missing or is omitted, it or even omissions concerning them in the attestation clause can be
will have the effect of invalidating the will if the deficiency cannot be safely disregarded. But the total number of pages, and whether all
supplied, not by evidence aliunde, but by a consideration or persons required to sign did so in the presence of each other must
examination of the will itself. But here the situation is different. While substantially appear in the attestation clause, being the only check
the attestation clause does not state the number of sheets or pages upon against perjury in the probate proceedings.29 (Emphasis supplied.)
which the will is written, however, the last part of the body of the will
contains a statement that it is composed of eight pages, which The Court of Appeals did cite these comments by Justice J.B.L. Reyes
circumstance in our opinion takes this case out of the rigid rule of in its assailed decision, considering that the failure to state the number
construction and places it within the realm of similar cases where a of pages of the will in the attestation clause is one of the defects which
broad and more liberal view has been adopted to prevent the will of cannot be simply disregarded. In Caneda itself, the Court refused to
the testator from being defeated by purely technical considerations." allow the probate of a will whose attestation clause failed to state that
(page 165-165, supra) (Underscoring supplied) the witnesses subscribed their respective signatures to the will in the
presence of the testator and of each other,30 the other omission cited by
In "Apolonio Tabaoda versus Hon. Avelino Rosal, et al." supra, the Justice J.B.L. Reyes which to his estimation cannot be lightly
notarial acknowledgement in the Will states the number of pages used disregarded.
in the:
"x x x Caneda suggested: "[I]t may thus be stated that the rule, as it now
stands, is that omission which can be supplied by an examination of
We have examined the will in question and noticed that the attestation the will itself, without the need of resorting to extrinsic evidence, will
clause failed to state the number of pages used in writing the will. This not be fatal and, correspondingly, would not obstruct the allowance to
would have been a fatal defect were it not for the fact that, in this case, probate of the will being assailed. However, those omissions which
it is discernible from the entire will that it is really and actually cannot be supplied except by evidence aliunde would result in the
composed of only two pages duly signed by the testatrix and her invalidation of the attestation clause and ultimately, of the will
instrumental witnesses. As earlier stated, the first page which contains itself."31 Thus, a failure by the attestation clause to state that the
the entirety of the testamentary dispositions is signed by the testatrix testator signed every page can be liberally construed, since that fact
at the end or at the bottom while the instrumental witnesses signed at can be checked by a visual examination; while a failure by the
the left margin. The other page which is marked as "Pagina dos" attestation clause to state that the witnesses signed in one anothers
comprises the attestation clause and the acknowledgment. The presence should be considered a fatal flaw since the attestation is the
acknowledgment itself states that "this Last Will and Testament only textual guarantee of compliance.32
consists of two pages including this page" (pages 200-201, supra)
(Underscoring supplied). The failure of the attestation clause to state the number of pages on
which the will was written remains a fatal flaw, despite Article 809.
However, in the appeal at bench, the number of pages used in the will The purpose of the law in requiring the clause to state the number of
is not stated in any part of the Will. The will does not even contain any pages on which the will is written is to safeguard against possible
notarial acknowledgment wherein the number of pages of the will interpolation or omission of one or some of its pages and to prevent
should be stated.21 any increase or decrease in the pages.33 The failure to state the number
of pages equates with the absence of an averment on the part of the
Both Uy Coque and Andrada were decided prior to the enactment of instrumental witnesses as to how many pages consisted the will, the
the Civil Code in 1950, at a time when the statutory provision execution of which they had ostensibly just witnessed and subscribed
governing the formal requirement of wills was Section 618 of the Code to. Following Caneda, there is substantial compliance with this
of Civil Procedure.22 Reliance on these cases remains apropos, requirement if the will states elsewhere in it how many pages it is
considering that the requirement that the attestation state the number comprised of, as was the situation in Singson and Taboada. However,
of pages of the will is extant from Section 618.23 However, the in this case, there could have been no substantial compliance with the
enactment of the Civil Code in 1950 did put in force a rule of requirements under Article 805 since there is no statement in the
interpretation of the requirements of wills, at least insofar as the attestation clause or anywhere in the will itself as to the number of
attestation clause is concerned, that may vary from the philosophy that pages which comprise the will.
governed these two cases. Article 809 of the Civil Code states: "In the
absence of bad faith, forgery, or fraud, or undue and improper pressure At the same time, Article 809 should not deviate from the need to
and influence, defects and imperfections in the form of attestation or comply with the formal requirements as enumerated under Article 805.
in the language used therein shall not render the will invalid if it is Whatever the inclinations of the members of the Code Commission in
proved that the will was in fact executed and attested in substantial incorporating Article 805, the fact remains that they saw fit to prescribe
compliance with all the requirements of article 805." substantially the same formal requisites as enumerated in Section 618
of the Code of Civil Procedure, convinced that these remained
In the same vein, petitioner cites the report of the Civil Code effective safeguards against the forgery or intercalation of notarial
Commission, which stated that "the underlying and fundamental wills.34 Compliance with these requirements, however picayune in
objective permeating the provisions on the [law] on [wills] in this impression, affords the public a high degree of comfort that the testator
project consists in the [liberalization] of the manner of their execution himself or herself had decided to convey property post mortem in the
with the end in view of giving the testator more [freedom] in manner established in the will.35 The transcendent legislative intent,
[expressing] his last wishes. This objective is in accord with the even as expressed in the cited comments of the Code Commission,
[modern tendency] in respect to the formalities in the execution of is for the fruition of the testators incontestable desires, and not
wills."24 However, petitioner conveniently omits the qualification for the indulgent admission of wills to probate.
offered by the Code Commission in the very same paragraph he cites
from their report, that such liberalization be "but with sufficient The Court could thus end here and affirm the Court of Appeals.
safeguards and restrictions to prevent the commission of fraud and the However, an examination of the will itself reveals a couple of even
exercise of undue and improper pressure and influence upon the more critical defects that should necessarily lead to its rejection.
testator."25
For one, the attestation clause was not signed by the instrumental
Caneda v. Court of Appeals26 features an extensive discussion made witnesses. While the signatures of the instrumental witnesses appear
by Justice Regalado, speaking for the Court on the conflicting views on the left-hand margin of the will, they do not appear at the bottom of
on the manner of interpretation of the legal formalities required in the the attestation clause which after all consists of their averments before
execution of the attestation clause in wills.27 Uy the notary public.
Coque and Andrada are cited therein, along with several other cases,
as examples of the application of the rule of strict Cagro v. Cagro36 is material on this point. As in this case, "the
construction.28 However, the Code Commission opted to recommend signatures of the three witnesses to the will do not appear at the bottom
a more liberal construction through the "substantial compliance rule" of the attestation clause, although the page containing the same is
under Article 809. A cautionary note was struck though by Justice signed by the witnesses on the left-hand margin."37 While three (3)
J.B.L. Reyes as to how Article 809 should be applied: Justices38 considered the signature requirement had been substantially
complied with, a majority of six (6), speaking through Chief Justice
x x x The rule must be limited to disregarding those defects that can be Paras, ruled that the attestation clause had not been duly signed,
supplied by an examination of the will itself: whether all the pages are rendering the will fatally defective.
consecutively numbered; whether the signatures appear in each and
every page; whether the subscribing witnesses are three or the will was There is no question that the signatures of the three witnesses to the
notarized. All these are facts that the will itself can reveal, and defects will do not appear at the bottom of the attestation clause, although the

32
page containing the same is signed by the witnesses on the left-hand averred that he himself "signed and notarized" the document. Possibly
margin. though, the word "ninotario" or "notarized" encompasses the signing
of and swearing in of the executors of the document, which in this case
We are of the opinion that the position taken by the appellant is correct. would involve the decedent and the instrumental witnesses.
The attestation clause is "a memorandum of the facts attending the
execution of the will" required by law to be made by the attesting Yet even if we consider what was affixed by the notary public as
witnesses, and it must necessarily bear their signatures. An unsigned a jurat, the will would nonetheless remain invalid, as the express
attestation clause cannot be considered as an act of the witnesses, since requirement of Article 806 is that the will be "acknowledged", and not
the omission of their signatures at the bottom thereof negatives their merely subscribed and sworn to. The will does not present any textual
participation. proof, much less one under oath, that the decedent and the instrumental
witnesses executed or signed the will as their own free act or deed. The
The petitioner and appellee contends that signatures of the three acknowledgment made in a will provides for another all-important
witnesses on the left-hand margin conform substantially to the law and legal safeguard against spurious wills or those made beyond the free
may be deemed as their signatures to the attestation clause. This is consent of the testator. An acknowledgement is not an empty
untenable, because said signatures are in compliance with the legal meaningless act.43 The acknowledgment coerces the testator and the
mandate that the will be signed on the left-hand margin of all its pages. instrumental witnesses to declare before an officer of the law that they
If an attestation clause not signed by the three witnesses at the bottom had executed and subscribed to the will as their own free act or deed.
thereof, be admitted as sufficient, it would be easy to add such clause Such declaration is under oath and under pain of perjury, thus allowing
to a will on a subsequent occasion and in the absence of the testator for the criminal prosecution of persons who participate in the execution
and any or all of the witnesses.39 of spurious wills, or those executed without the free consent of the
testator. It also provides a further degree of assurance that the testator
The Court today reiterates the continued efficacy of Cagro. Article 805 is of certain mindset in making the testamentary dispositions to those
particularly segregates the requirement that the instrumental witnesses persons he/she had designated in the will.
sign each page of the will, from the requisite that the will be "attested It may not have been said before, but we can assert the rule, self-
and subscribed by [the instrumental witnesses]." The respective intents evident as it is under Article 806. A notarial will that is not
behind these two classes of signature are distinct from each other. The acknowledged before a notary public by the testator and the
signatures on the left-hand corner of every page signify, among others, witnesses is fatally defective, even if it is subscribed and sworn to
that the witnesses are aware that the page they are signing forms part before a notary public.
of the will. On the other hand, the signatures to the attestation clause
establish that the witnesses are referring to the statements contained in There are two other requirements under Article 805 which were not
the attestation clause itself. Indeed, the attestation clause is separate fully satisfied by the will in question. We need not discuss them at
and apart from the disposition of the will. An unsigned attestation length, as they are no longer material to the disposition of this case.
clause results in an unattested will. Even if the instrumental witnesses The provision requires that the testator and the instrumental witnesses
signed the left-hand margin of the page containing the unsigned sign each and every page of the will on the left margin, except the last;
attestation clause, such signatures cannot demonstrate these witnesses and that all the pages shall be numbered correlatively in letters placed
undertakings in the clause, since the signatures that do appear on the on the upper part of each page. In this case, the decedent, unlike the
page were directed towards a wholly different avowal. witnesses, failed to sign both pages of the will on the left margin, her
only signature appearing at the so-called "logical end"44 of the will on
The Court may be more charitably disposed had the witnesses in this its first page. Also, the will itself is not numbered correlatively in
case signed the attestation clause itself, but not the left-hand margin of letters on each page, but instead numbered with Arabic numerals.
the page containing such clause. Without diminishing the value of the There is a line of thought that has disabused the notion that these two
instrumental witnesses signatures on each and every page, the fact requirements be construed as mandatory.45 Taken in isolation, these
must be noted that it is the attestation clause which contains the omissions, by themselves, may not be sufficient to deny probate to a
utterances reduced into writing of the testamentary witnesses will. Yet even as these omissions are not decisive to the adjudication
themselves. It is the witnesses, and not the testator, who are required of this case, they need not be dwelt on, though indicative as they may
under Article 805 to state the number of pages used upon which the be of a general lack of due regard for the requirements under Article
will is written; the fact that the testator had signed the will and every 805 by whoever executed the will.
page thereof; and that they witnessed and signed the will and all the
pages thereof in the presence of the testator and of one another. The All told, the string of mortal defects which the will in question suffers
only proof in the will that the witnesses have stated these elemental from makes the probate denial inexorable.
facts would be their signatures on the attestation clause. WHEREFORE, the petition is DENIED. Costs against petitioner. SO
ORDERED.
Thus, the subject will cannot be considered to have been validly
attested to by the instrumental witnesses, as they failed to sign the G.R. No. 157451 December 16, 2005
attestation clause.
LETICIA VALMONTE ORTEGA, Petitioner, vs.
Yet, there is another fatal defect to the will on which the denial of this JOSEFINA C. VALMONTE, Respondent.
petition should also hinge. The requirement under Article 806 that
"every will must be acknowledged before a notary public by the DECISION
testator and the witnesses" has also not been complied with. The PANGANIBAN, J.:
importance of this requirement is highlighted by the fact that it had
been segregated from the other requirements under Article 805 and The law favors the probate of a will. Upon those who oppose it rests
entrusted into a separate provision, Article 806. The non-observance the burden of showing why it should not be allowed. In the present
of Article 806 in this case is equally as critical as the other cited flaws case, petitioner has failed to discharge this burden satisfactorily. For
in compliance with Article 805, and should be treated as of equivalent this reason, the Court cannot attribute any reversible error on the part
import. of the appellate tribunal that allowed the probate of the will.
In lieu of an acknowledgment, the notary public, Petronio Y. Bautista, The Case
wrote "Nilagdaan ko at ninotario ko ngayong 10 ng Hunyo 10 (sic), Before the Court is a Petition for Review1 under Rule 45 of the Rules
1981 dito sa Lungsod ng Maynila."40 By no manner of contemplation of Court, seeking to reverse and set aside the December 12, 2002
can those words be construed as an acknowledgment. An Decision2 and the March 7, 2003 Resolution3 of the Court of Appeals
acknowledgment is the act of one who has executed a deed in going (CA) in CA-GR CV No. 44296. The assailed Decision disposed as
before some competent officer or court and declaring it to be his act or follows:
deed.41 It involves an extra step undertaken whereby the signor
actually declares to the notary that the executor of a document has "WHEREFORE, the appeal is GRANTED, and the Decision appealed
attested to the notary that the same is his/her own free act and deed. from is REVERSED and SET ASIDE. In its place judgment is
rendered approving and allowing probate to the said last will and
It might be possible to construe the averment as a jurat, even though it testament of Placido Valmonte and ordering the issuance of letters
does not hew to the usual language thereof. A jurat is that part of an testamentary to the petitioner Josefina Valmonte. Let this case be
affidavit where the notary certifies that before him/her, the document remanded to the court a quo for further and concomitant
was subscribed and sworn to by the executor.42 Ordinarily, the proceedings."4
language of the jurat should avow that the document was subscribed
and sworn before the notary public, while in this case, the notary public

33
The assailed Resolution denied petitioners Motion for 7. Signature of testator was procured by fraud, or trick, and he did not
Reconsideration. intend that the instrument should be his will at the time of affixing his
signature thereto;
The Facts and she also opposed the appointment as Executrix of Josefina alleging
The facts were summarized in the assailed Decision of the CA, as her want of understanding and integrity.
follows:
"x x x: Like so many others before him, Placido toiled and lived for a "At the hearing, the petitioner Josefina testified and called as witnesses
long time in the United States until he finally reached retirement. In the notary public Atty. Floro Sarmiento who prepared and notarized
1980, Placido finally came home to stay in the Philippines, and he lived the will, and the instrumental witnesses spouses Eugenio Gomez, Jr.
in the house and lot located at #9200 Catmon St., San Antonio Village, and Feliza Gomez and Josie Collado. For the opposition, the oppositor
Makati, which he owned in common with his sister Ciriaca Valmonte Leticia and her daughter Mary Jane Ortega testified.
and titled in their names in TCT 123468. Two years after his arrival
from the United States and at the age of 80 he wed Josefina who was "According to Josefina after her marriage with the testator they lived
then 28 years old, in a ceremony solemnized by Judge Perfecto Laguio, in her parents house at Salingcob, Bacnotan, La Union but they came
Jr. on February 5, 1982. But in a little more than two years of wedded to Manila every month to get his $366.00 monthly pension and stayed
bliss, Placido died on October 8, 1984 of a cause written down as COR at the said Makati residence. There were times though when to shave
PULMONALE. off on expenses, the testator would travel alone. And it was in one of
his travels by his lonesome self when the notarial will was made. The
"Placido executed a notarial last will and testament written in English will was witnessed by the spouses Eugenio and Feliza Gomez, who
and consisting of two (2) pages, and dated June 15, 1983 but were their wedding sponsors, and by Josie Collado. Josefina said she
acknowledged only on August 9, 1983. The first page contains the had no knowledge of the existence of the last will and testament of her
entire testamentary dispositions and a part of the attestation clause, and husband, but just serendipitously found it in his attache case after his
was signed at the end or bottom of that page by the testator and on the death. It was only then that she learned that the testator bequeathed to
left hand margin by the three instrumental witnesses. The second page her his properties and she was named the executrix in the said will. To
contains the continuation of the attestation clause and the her estimate, the value of property both real and personal left by the
acknowledgment, and was signed by the witnesses at the end of the testator is worth more or less P100,000.00. Josefina declared too that
attestation clause and again on the left hand margin. It provides in the the testator never suffered mental infirmity because despite his old age
body that: he went alone to the market which is two to three kilometers from their
home cooked and cleaned the kitchen and sometimes if she could not
LAST WILL AND TESTAMENT OF PLACIDO VALMONTE IN accompany him, even traveled to Manila alone to claim his monthly
THE NAME OF THE LORD AMEN: pension. Josefina also asserts that her husband was in good health and
I, PLACIDO VALMONTE, of legal age, married to Josefina that he was hospitalized only because of a cold but which eventually
Cabansag Valmonte, and a resident of 9200 Catmon Street, Makati, resulted in his death.
Metro Manila, 83 years of age and being of sound and disposing mind
and memory, do hereby declare this to be my last will and testament: "Notary Public Floro Sarmiento, the notary public who notarized the
testators will, testified that it was in the first week of June 1983 when
1. It is my will that I be buried in the Catholic Cemetery, under the the testator together with the three witnesses of the will went to his
auspices of the Catholic Church in accordance with the rites and said house cum law office and requested him to prepare his last will and
Church and that a suitable monument to be erected and provided my testament. After the testator instructed him on the terms and
by executrix (wife) to perpetuate my memory in the minds of my dispositions he wanted on the will, the notary public told them to come
family and friends; back on June 15, 1983 to give him time to prepare it. After he had
prepared the will the notary public kept it safely hidden and locked in
his drawer. The testator and his witnesses returned on the appointed
2. I give, devise and bequeath unto my loving wife, JOSEFINA C. date but the notary public was out of town so they were instructed by
VALMONTE, one half (1/2) portion of the follow-described his wife to come back on August 9, 1983, and which they did. Before
properties, which belongs to me as [co-owner]: the testator and his witnesses signed the prepared will, the notary
a. Lot 4-A, Block 13 described on plan Psd-28575, LRC, (GLRO), public explained to them each and every term thereof in Ilocano, a
situated in Makati, Metro Manila, described and covered by TCT No. dialect which the testator spoke and understood. He likewise explained
123468 of the Register of Deeds of Pasig, Metro-Manila registered that though it appears that the will was signed by the testator and his
jointly as co-owners with my deceased sister (Ciriaca Valmonte), witnesses on June 15, 1983, the day when it should have been executed
having share and share alike; had he not gone out of town, the formal execution was actually on
b. 2-storey building standing on the above-described property, made August 9, 1983. He reasoned that he no longer changed the typewritten
of strong and mixed materials used as my residence and my wife and date of June 15, 1983 because he did not like the document to appear
located at No. 9200 Catmon Street, Makati, Metro Manila also covered dirty. The notary public also testified that to his observation the testator
by Tax Declaration No. A-025-00482, Makati, Metro-Manila, jointly was physically and mentally capable at the time he affixed his
in the name of my deceased sister, Ciriaca Valmonte and myself as co- signature on the will.
owners, share and share alike or equal co-owners thereof;
"The attesting witnesses to the will corroborated the testimony of the
3. All the rest, residue and remainder of my real and personal notary public, and testified that the testator went alone to the house of
properties, including my savings account bank book in USA which is spouses Eugenio and Feliza Gomez at GSIS Village, Quezon City and
in the possession of my nephew, and all others whatsoever and requested them to accompany him to the house of Atty. Floro
wherever found, I give, devise and bequeath to my said wife, Josefina Sarmiento purposely for his intended will; that after giving his
C. Valmonte; instructions to Atty. Floro Sarmiento, they were told to return on June
15, 1983; that they returned on June 15, 1983 for the execution of the
4. I hereby appoint my wife, Josefina C. Valmonte as sole executrix of will but were asked to come back instead on August 9, 1983 because
my last will and testament, and it is my will that said executrix be of the absence of the notary public; that the testator executed the will
exempt from filing a bond; in question in their presence while he was of sound and disposing mind
and that he was strong and in good health; that the contents of the will
IN WITNESS WHEREOF, I have hereunto set my hand this 15th day was explained by the notary public in the Ilocano and Tagalog dialect
of June 1983 in Quezon City, Philippines. and that all of them as witnesses attested and signed the will in the
"The allowance to probate of this will was opposed by Leticia on the presence of the testator and of each other.
grounds that: And that during the execution, the testators wife, Josefina was not
1. Petitioner failed to allege all assets of the testator, especially those with them.
found in the USA;
2. Petitioner failed to state the names, ages, and residences of the heirs "The oppositor Leticia declared that Josefina should not inherit alone
of the testator; or to give them proper notice pursuant to law; because aside from her there are other children from the siblings of
3. Will was not executed and attested as required by law and legal Placido who are just as entitled to inherit from him. She attacked the
solemnities and formalities were not complied with; mental capacity of the testator, declaring that at the time of the
4. Testator was mentally incapable to make a will at the time of the execution of the notarial will the testator was already 83 years old and
alleged execution he being in an advance sate of senility; was no longer of sound mind. She knew whereof she spoke because in
5. Will was executed under duress, or the influence of fear or threats; 1983 Placido lived in the Makati residence and asked Leticias family
6. Will was procured by undue and improper influence and pressure on to live with him and they took care of him. During that time, the
the part of the petitioner and/or her agents and/or assistants; and/or testators physical and mental condition showed deterioration,

34
aberrations and senility. This was corroborated by her daughter Mary Placido to sign it. Deception is allegedly reflected in the varying dates
Jane Ortega for whom Placido took a fancy and wanted to marry. of the execution and the attestation of the will.

"Sifting through the evidence, the court a quo held that [t]he evidence Petitioner contends that it was "highly dubious for a woman at the
adduced, reduces the opposition to two grounds, namely: prime of her young life [to] almost immediately plunge into marriage
1. Non-compliance with the legal solemnities and formalities in the with a man who [was] thrice her age x x x and who happened to be [a]
execution and attestation of the will; and Fil-American pensionado,"11 thus casting doubt on the intention of
2. Mental incapacity of the testator at the time of the execution of the respondent in seeking the probate of the will. Moreover, it supposedly
will as he was then in an advanced state of senility "defies human reason, logic and common experience"12 for an old man
"It then found these grounds extant and proven, and accordingly with a severe psychological condition to have willingly signed a last
disallowed probate."5 will and testament.

Ruling of the Court of Appeals We are not convinced. Fraud "is a trick, secret device, false statement,
Reversing the trial court, the appellate court admitted the will of or pretense, by which the subject of it is cheated. It may be of such
Placido Valmonte to probate. The CA upheld the credibility of the character that the testator is misled or deceived as to the nature or
notary public and the subscribing witnesses who had acknowledged contents of the document which he executes, or it may relate to some
the due execution of the will. Moreover, it held that the testator had extrinsic fact, in consequence of the deception regarding which the
testamentary capacity at the time of the execution of the will. It added testator is led to make a certain will which, but for the fraud, he would
that his "sexual exhibitionism and unhygienic, crude and impolite not have made."13
ways"6 did not make him a person of unsound mind.
We stress that the party challenging the will bears the burden of
Hence, this Petition.7 proving the existence of fraud at the time of its execution.14 The burden
to show otherwise shifts to the proponent of the will only upon a
Issues showing of credible evidence of fraud.15 Unfortunately in this case,
Petitioner raises the following issues for our consideration: other than the self-serving allegations of petitioner, no evidence of
"I. fraud was ever presented.
Whether or not the findings of the probate court are entitled to great
respect. It is a settled doctrine that the omission of some relatives does not
affect the due execution of a will.16 That the testator was tricked into
"II. signing it was not sufficiently established by the fact that he had
Whether or not the signature of Placido Valmonte in the subject will instituted his wife, who was more than fifty years his junior, as the sole
was procured by fraud or trickery, and that Placido Valmonte never beneficiary; and disregarded petitioner and her family, who were the
intended that the instrument should be his last will and testament. ones who had taken "the cudgels of taking care of [the testator] in his
twilight years."17
"III.
Whether or not Placido Valmonte has testamentary capacity at the time Moreover, as correctly ruled by the appellate court, the conflict
he allegedly executed the subject will."8 between the dates appearing on the will does not invalidate the
document, "because the law does not even require that a [notarial] will
In short, petitioner assails the CAs allowance of the probate of the will x x x be executed and acknowledged on the same occasion."18 More
of Placido Valmonte. important, the will must be subscribed by the testator, as well as by
three or more credible witnesses who must also attest to it in the
This Courts Ruling presence of the testator and of one another.19 Furthermore, the testator
The Petition has no merit. and the witnesses must acknowledge the will before a notary
public.20 In any event, we agree with the CA that "the variance in the
Main Issue: dates of the will as to its supposed execution and attestation was
Probate of a Will satisfactorily and persuasively explained by the notary public and the
At the outset, we stress that only questions of law may be raised in a instrumental witnesses."21
Petition for Review under Section 1 of Rule 45 of the Rules of Court.
As an exception, however, the evidence presented during the trial may The pertinent transcript of stenographic notes taken on June 11, 1985,
be examined and the factual matters resolved by this Court when, as in November 25, 1985, October 13, 1986, and October 21, 1987 -- as
the instant case, the findings of fact of the appellate court differ from quoted by the CA -- are reproduced respectively as follows:
those of the trial court.9 "Atty. Floro Sarmiento:
The fact that public policy favors the probate of a will does not Q You typed this document exhibit C, specifying the date June 15
necessarily mean that every will presented for probate should be when the testator and his witnesses were supposed to be in your office?
allowed. The law lays down the procedures and requisites that must be A Yes sir.
satisfied for the probate of a will.10 Verily, Article 839 of the Civil Q On June 15, 1983, did the testator and his witnesses come to your
Code states the instances when a will may be disallowed, as follows: house?
A They did as of agreement but unfortunately, I was out of town.
"Article 839. The will shall be disallowed in any of the following xxxxxxxxx
cases: Q The document has been acknowledged on August 9, 1983 as per
(1) If the formalities required by law have not been complied with; acknowledgement appearing therein. Was this the actual date when the
(2) If the testator was insane, or otherwise mentally incapable of document was acknowledged?
making a will, at the time of its execution; A Yes sir.
(3) If it was executed through force or under duress, or the influence Q What about the date when the testator and the three witnesses affixed
of fear, or threats; their respective signature on the first and second pages of exhibit C?
(4) If it was procured by undue and improper pressure and influence, A On that particular date when it was acknowledged, August 9, 1983.
on the part of the beneficiary or of some other person; Q Why did you not make the necessary correction on the date
(5) If the signature of the testator was procured by fraud; appearing on the body of the document as well as the attestation
(6) If the testator acted by mistake or did not intend that the instrument clause?
he signed should be his will at the time of affixing his signature A Because I do not like anymore to make some alterations so I put it
thereto." in my own handwriting August 9, 1983 on the acknowledgement. (tsn,
June 11, 1985, pp. 8-10)
In the present case, petitioner assails the validity of Placido Eugenio Gomez:
Valmontes will by imputing fraud in its execution and challenging the Q It appears on the first page Mr. Witness that it is dated June 15, 1983,
testators state of mind at the time. whereas in the acknowledgement it is dated August 9, 1983, will you
look at this document and tell us this discrepancy in the date?
Existence of Fraud in the Execution of a Will A We went to Atty. Sarmiento together with Placido Valmonte and the
Petitioner does not dispute the due observance of the formalities in the two witnesses; that was first week of June and Atty. Sarmiento told us
execution of the will, but maintains that the circumstances surrounding to return on the 15th of June but when we returned, Atty. Sarmiento
it are indicative of the existence of fraud. Particularly, she alleges that was not there.
respondent, who is the testators wife and sole beneficiary, conspired Q When you did not find Atty. Sarmiento on June 15, 1983, did you
with the notary public and the three attesting witnesses in deceiving again go back?
A We returned on the 9th of August and there we signed.

35
Q This August 9, 1983 where you said it is there where you signed, there are numberless degrees of mental capacity or incapacity and
who were your companions? while on one hand it has been held that mere weakness of mind, or
A The two witnesses, me and Placido Valmonte. (tsn, November 25, partial imbecility from disease of body, or from age, will not render a
1985, pp. 7-8) person incapable of making a will; a weak or feebleminded person may
Felisa Gomez on cross-examination: make a valid will, provided he has understanding and memory
Q Why did you have to go to the office of Atty. Floro Sarmiento, three sufficient to enable him to know what he is about to do and how or to
times? whom he is disposing of his property. To constitute a sound and
xxxxxxxxx disposing mind, it is not necessary that the mind be unbroken or
A The reason why we went there three times is that, the first week of unimpaired or unshattered by disease or otherwise. It has been held
June was out first time. We went there to talk to Atty. Sarmiento and that testamentary incapacity does not necessarily require that a person
Placido Valmonte about the last will and testament. After that what shall actually be insane or of unsound mind."26
they have talked what will be placed in the testament, what Atty.
Sarmiento said was that he will go back on the 15th of June. When we WHEREFORE, the Petition is DENIED, and the assailed Decision
returned on June 15, Atty. Sarmiento was not there so we were not able and Resolution of the Court of Appeals are AFFIRMED. Costs
to sign it, the will. That is why, for the third time we went there on against petitioner. SO ORDERED.
August 9 and that was the time we affixed our signature. (tsn, October
13, 1986, pp. 4-6) G.R. No. 1641 January 19, 1906
Josie Collado:
Q When you did not find Atty. Sarmiento in his house on June 15, GERMAN JABONETA, plaintiff-appellant, vs.
1983, what transpired? RICARDO GUSTILO, ET AL., defendants-appellees.
A The wife of Atty. Sarmiento told us that we will be back on August
9, 1983. CARSON, J.:
Q And on August 9, 1983 did you go back to the house of Atty.
Sarmiento? In these proceedings probate was denied the last will and testament of
A Yes, Sir. Macario Jaboneta, deceased, because the lower court was of the
Q For what purpose? opinion from the evidence adduced at the hearing that Julio Javellana,
A Our purpose is just to sign the will. one of the witnesses, did not attach his signature thereto in the presence
Q Were you able to sign the will you mentioned? of Isabelo Jena, another of the witnesses, as required by the provisions
A Yes sir. (tsn, October 21, 1987, pp. 4-5)"22 of section 618 of the Code of Civil Procedure.
Notably, petitioner failed to substantiate her claim of a "grand
conspiracy" in the commission of a fraud. There was no showing that The following is a copy of the evidence which appears of record on
the witnesses of the proponent stood to receive any benefit from the this particular point, being a part of the testimony of the said Isabeo
allowance of the will. The testimonies of the three subscribing Jena:
witnesses and the notary are credible evidence of its due Q. 1641 Who first signed the will?
execution.23 Their testimony favoring it and the finding that it was A. 1641 I signed it first, and afterwards Aniceto and
executed in accordance with the formalities required by law should be the others.
affirmed, absent any showing of ill motives.24 Q. 1641 Who were those others to whom you have just
referred?
Capacity to Make a Will A. 1641 After the witness Aniceto signed the will I left
In determining the capacity of the testator to make a will, the Civil the house, because I was in a hurry, and at the moment when
Code gives the following guidelines: 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
"Article 798. In order to make a will it is essential that the testator be signed, because he was at the table. . . .
of sound mind at the time of its execution. Q. 1641 State positively whether Julio Javellana did
or did not sign as a witness to the will.
"Article 799. To be of sound mind, it is not necessary that the testator A. 1641 I can't say certainly, because as I was leaving
be in full possession of all his reasoning faculties, or that his mind be the house I saw Julio Javellana with the pen in his hand, in
wholly unbroken, unimpaired, or shattered by disease, injury or other position ready to sign. I believe he signed.
cause. Q. 1641 Why do you believe Julio Javellana signed?
"It shall be sufficient if the testator was able at the time of making the A. 1641 Because he had the pen in his hand, which
will to know the nature of the estate to be disposed of, the proper was resting on the paper, though I did not actually see him
objects of his bounty, and the character of the testamentary act. sign.
Q. 1641 Explain this contradictory statement.
"Article 800. The law presumes that every person is of sound mind, in A. 1641 After I signed I asked permission to leave,
the absence of proof to the contrary. because I was in a hurry, and while I was leaving Julio had
"The burden of proof that the testator was not of sound mind at the already taken the pen in his hand, as it appeared, for the
time of making his dispositions is on the person who opposes the purpose of signing, and when I was near the door I happened
probate of the will; but if the testator, one month, or less, before to turn my face and I saw that he had his hand with the pen
making his will was publicly known to be insane, the person who resting on the will, moving it as if for the purpose of signing.
maintains the validity of the will must prove that the testator made it Q. 1641 State positively whether Julio moved his hand
during a lucid interval." with the pen as if for the purpose of signing, or whether he
was signing
According to Article 799, the three things that the testator must have A. I believe he was signing.
the ability to know to be considered of sound mind are as follows: (1)
the nature of the estate to be disposed of, (2) the proper objects of the The truth and accuracy of the testimony of this witness does not seem
testators bounty, and (3) the character of the testamentary act. to have been questioned by any of the parties to the proceedings, but
Applying this test to the present case, we find that the appellate court the court, nevertheless, found the following facts:
was correct in holding that Placido had testamentary capacity at the On the 26th day of December, 1901, Macario Jaboneta
time of the execution of his will. executed under the following circumstances the document in
question, which has been presented for probate as his will:
It must be noted that despite his advanced age, he was still able to
identify accurately the kinds of property he owned, the extent of his Being in the house of Arcadio Jarandilla, in Jaro, in this
shares in them and even their locations. As regards the proper objects province, he ordered that the document in question be
of his bounty, it was sufficient that he identified his wife as sole written, and calling Julio Javellana, Aniceto Jalbuena, and
beneficiary. As we have stated earlier, the omission of some relatives Isabelo Jena as witnesses, executed the said document as his
from the will did not affect its formal validity. There being no showing will. They were all together, and were in the room where
of fraud in its execution, intent in its disposition becomes irrelevant. Jaboneta was, and were present when he signed the
document, Isabelo Jena signing afterwards as a witness, at
Worth reiterating in determining soundness of mind is Alsua-Betts v. his request, and in his presence and in the presence of the
CA,25 which held thus: other two witnesses. Aniceto Jalbuena then signed as a
"Between the highest degree of soundness of mind and memory which witness in the presence of the testator, and in the presence of
unquestionably carries with it full testamentary capacity, and that the other two persons who signed as witnesses. At that
degrees of mental aberration generally known as insanity or idiocy, moment Isabelo Jena, being in a hurry to leave, took his hat
36
and left the room. As he was leaving the house Julio
Javellana took the pen in his hand and put himself in position The records show that on December 5, 1978, Mateo Caballero, a
to sign the will as a witness, but did not sign in the presence widower without any children and already in the twilight years of his
of Isabelo Jena; but nevertheless, after Jena had left the room life, executed a last will and testament at his residence in Talisay, Cebu
the said Julio Javellana signed as a witness in the presence before three attesting witnesses, namely, Cipriano Labuca, Gregorio
of the testator and of the witness Aniceto Jalbuena. Cabando and Flaviano Toregosa. The said testator was duly assisted
by his lawyer, Atty. Emilio Lumontad, and a notary public, Atty.
We can not agree with so much of the above finding of facts as holds Filoteo Manigos, in the preparation of that last will. 1 It was declared
that the signature of Javellana was not signed in the presence of Jena, therein, among other things, that the testator was leaving by way of
in compliance with the provisions of section 618 of the Code of Civil legacies and devises his real and personal properties to Presentacion
Procedure. The fact that Jena was still in the room when he saw Gaviola, Angel Abatayo, Rogelio Abatayo, Isabelito Abatayo, Benoni
Javellana moving his hand and pen in the act of affixing his signature G. Cabrera and Marcosa Alcantara, all of whom do not appear to be
to the will, taken together with the testimony of the remaining related to the testator. 2
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 Four months later, or on April 4, 1979, Mateo Caballero himself filed
presence of Jena. The fact that he was in the act of leaving, and that his a petition docketed as Special Proceeding No. 3899-R before Branch
back was turned while a portion of the name of the witness was being II of the then Court of First Instance of Cebu seeking the probate of his
written, is of no importance. He, with the other witnesses and the last will and testament. The probate court set the petition for hearing
testator, had assembled for the purpose of executing the testament, and on August 20, 1979 but the same and subsequent scheduled hearings
were together in the same room for that purpose, and at the moment were postponed for one reason to another. On May 29, 1980, the
when the witness Javellana signed the document he was actually and testator passed away before his petition could finally be heard by the
physically present and in such position with relation to Javellana that probate court. 3 On February 25, 1981, Benoni Cabrera, on of the
he could see everything which took place by merely casting his eyes legatees named in the will, sough his appointment as special
in the proper direction, and without any physical obstruction to prevent administrator of the testator's estate, the estimated value of which was
his doing so, therefore we are of opinion that the document was in fact P24,000.00, and he was so appointed by the probate court in its order
signed before he finally left the room. of March 6, 1981. 4
The purpose of a statutory requirement that the witness sign
in the presence of the testator is said to be that the testator Thereafter, herein petitioners, claiming to be nephews and nieces of
may have ocular evidence of the identity of the instrument the testator, instituted a second petition, entitled "In the Matter of the
subscribed by the witness and himself, and the generally Intestate Estate of Mateo Caballero" and docketed as Special
accepted tests of presence are vision and mental Proceeding No. 3965-R, before Branch IX of the aforesaid Court of
apprehension. (See Am. & Eng. Enc. of Law, vol. 30, p. 599, First Instance of Cebu. On October 18, 1982, herein petitioners had
and cases there cited.) their said petition intestate proceeding consolidated with Special
Proceeding No. 3899-R in Branch II of the Court of First Instance of
In the matter of Bedell (2 Connoly (N.Y.), 328) it was held that it is Cebu and opposed thereat the probate of the Testator's will and the
sufficient if the witnesses are together for the purpose of witnessing appointment of a special administrator for his estate. 5
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 Benoni Cabrera died on February 8, 1982 hence the probate court, now
the rule that the true test of vision is not whether the testator actually known as Branch XV of the Regional Trial Court of Cebu, appointed
saw the witness sign, but whether he might have seen him sign, William Cabrera as special administrator on June 21, 1983. Thereafter,
considering his mental and physical condition and position at the time on July 20, 1983, it issued an order for the return of the records of
of the subscription. (Spoonemore vs. Cables, 66 Mo., 579.) Special Proceeding No. 3965-R to the archives since the testate
proceeding for the probate of the will had to be heard and resolved
The principles on which these cases rest and the tests of presence as first. On March 26, 1984 the case was reraffled and eventually assigned
between the testator and the witnesses are equally applicable in to Branch XII of the Regional Trial Court of Cebu where it remained
determining whether the witnesses signed the instrument in the until the conclusion of the probate proceedings. 6
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 In the course of the hearing in Special Proceeding No. 3899-R, herein
statutory requisites as to the execution of the instrument were complied petitioners appeared as oppositors and objected to the allowance of the
with, and that the lower court erred in denying probate to the will on testator's will on the ground that on the alleged date of its execution,
the ground stated in the ruling appealed from. the testator was already in the poor state of health such that he could
not have possibly executed the same. Petitioners likewise reiterated the
We are of opinion from the evidence of record that the instrument issue as to the genuineness of the signature of the testator therein. 7
propounded in these proceedings was satisfactorily proven to be the
last will and testament of Macario Jaboneta, deceased, and that it On the other hand, one of the attesting witnesses, Cipriano Labuca, and
should therefore be admitted to probate. the notary public Atty. Filoteo Manigos, testified that the testator
The judgment of the trial court is reversed, without especial executed the will in question in their presence while he was of sound
condemnation of costs, and after twenty days the record will be and disposing mind and that, contrary to the assertions of the
returned to the court form whence it came, where the proper orders will oppositors, Mateo Caballero was in good health and was not unduly
be entered in conformance herewith. So ordered. influenced in any way in the execution of his will. Labuca also testified
that he and the other witnesses attested and signed the will in the
G.R. No. 103554 May 28, 1993 presence of the testator and of each other. The other two attesting
witnesses were not presented in the probate hearing as the had died by
TEODORO CANEDA, LORENZA CANEDA, TERESA then. 8
CANEDA, JUAN CABALLERO, AUREA CABALLERO,
OSCAR LAROSA, HELEN CABALLERO, SANTOS On April 5, 1988, the probate court rendered a decision declaring the
CABALLERO, PABLO CABALLERO, VICTOR RAGA, will in question as the last will and testament of the late Mateo
MAURICIA RAGA, QUIRICA RAGA, RUPERTO ABAPO, Caballero, on the ratiocination that:
represented herein by his Attorney-in-Fact, ARMSTICIA * . . . The self-serving testimony of the two witnesses of the
ABAPO VELANO, and CONSESO CANEDA, represented oppositors cannot overcome the positive testimonies of Atty.
herein by his heirs, JESUS CANEDA, NATIVIDAD CANEDA Filoteo Manigos and Cipriano Labuca who clearly told the
and ARTURO CANEDA, petitioners, vs. Court that indeed Mateo Caballero executed the Last Will
HON. COURT OF APPEALS and WILLIAM CABRERA, as and Testament now marked Exhibit "C" on December 5,
Special Administrator of the Estate of Mateo 1978. Moreover, the fact that it was Mateo Caballero who
Caballero, respondents. initiated the probate of his Will during his lifetime when he
caused the filing of the original petition now marked Exhibit
REGALADO, J.: "D" clearly underscores the fact that this was indeed his Last
Will. At the start, counsel for the oppositors manifested that
Presented for resolution by this Court in the present petition for review he would want the signature of Mateo Caballero in Exhibit
on certiorari is the issue of whether or not the attestation clause "C" examined by a handwriting expert of the NBI but it
contained in the last will and testament of the late Mateo Caballero would seem that despite their avowal and intention for the
complies with the requirements of Article 805, in relation to Article examination of this signature of Mateo Caballero in Exhibit
809, of the Civil Code. "C", nothing came out of it because they abandoned the idea

37
and instead presented Aurea Caballero and Helen Caballero the will and every page thereof, or caused some other person
Campo as witnesses for the oppositors. to write his name, under his express direction, in the
presence of the instrumental witnesses, and that the latter
All told, it is the finding of this Court that Exhibit "C" is the witnessed and signed the will and all the pages thereof in the
Last Will and Testament of Mateo Caballero and that it was presence of the testator and of one another.
executed in accordance with all the requisites of the law. 9
If the attestation clause is in a language not known to the
Undaunted by the said judgment of the probate court, petitioners witness, it shall be interpreted to them.
elevated the case in the Court of Appeals in CA-G.R. CV No. 19669.
They asserted therein that the will in question is null and void for the In addition, the ordinary will must be acknowledged before a notary
reason that its attestation clause is fatally defective since it fails to public by a testator and the attesting witness. 15 hence it is likewise
specifically state that the instrumental witnesses to the will witnessed known as notarial will. Where the attestator is deaf or deaf-mute,
the testator signing the will in their presence and that they also signed Article 807 requires that he must personally read the will, if able to do
the will and all the pages thereof in the presence of the testator and of so. Otherwise, he should designate two persons who would read the
one another. will and communicate its contents to him in a practicable manner. On
the other hand, if the testator is blind, the will should be read to him
On October 15, 1991, respondent court promulgated its twice; once, by anyone of the witnesses thereto, and then again, by the
decision 10 affirming that of the trial court, and ruling that the notary public before whom it is acknowledged. 16
attestation clause in the last will of Mateo Caballero substantially
complies with Article 805 of the Civil Code, thus: The other kind of will is the holographic will, which Article 810
The question therefore is whether the attestation clause in defines as one that is entirely written, dated, and signed by the testator
question may be considered as having substantialy complied himself. This kind of will, unlike the ordinary type, requires no
with the requirements of Art. 805 of the Civil Code. What attestation by witnesses. A common requirement in both kinds of will
appears in the attestation clause which the oppositors claim is that they should be in writing and must have been executed in a
to be defective is "we do certify that the testament was read language or dialect known to the testator. 17
by him and the attestator, Mateo Caballero, has published
unto us the foregoing will consisting of THREE PAGES, However, in the case of an ordinary or attested will, its attestation
including the acknowledgment, each page numbered clause need not be written in a language or dialect known to the testator
correlatively in letters of the upper part of each page, as his since it does not form part of the testamentary disposition.
Last Will and Testament, and he has signed the same and Furthermore, the language used in the attestation clause likewise need
every page thereof, on the spaces provided for his signature not even be known to the attesting witnesses. 18 The last paragraph of
and on the left hand margin in the presence of the said Article 805 merely requires that, in such a case, the attestation clause
testator and in the presence of each and all of us (emphasis shall be interpreted to said witnesses.
supplied).
An attestation clause refers to that part of an ordinary will whereby the
To our thinking, this is sufficient compliance and no attesting witnesses certify that the instrument has been executed before
evidence need be presented to indicate the meaning that the them and to the manner of the execution the same. 19 It is a separate
said will was signed by the testator and by them (the memorandum or record of the facts surrounding the conduct of
witnesses) in the presence of all of them and of one another. execution and once signed by the witnesses, it gives affirmation to the
Or as the language of the law would have it that the testator fact that compliance with the essential formalities required by law has
signed the will "in the presence of the instrumental been observed. 20 It is made for the purpose of preserving in a
witnesses, and that the latter witnessed and signed the will permanent form a record of the facts that attended the execution of a
and all the pages thereof in the presence of the testator and particular will, so that in case of failure of the memory of the attesting
of one another." If not completely or ideally perfect in witnesses, or other casualty, such facts may still be proved. 21
accordance with the wordings of Art. 805 but (sic) the phrase
as formulated is in substantial compliance with the Under the third paragraph of Article 805, such a clause, the complete
requirement of the law." 11 lack of which would result in the invalidity of the will, 22 should state
(1) the number of the pages used upon which the will is written; (2)
Petitioners moved for the reconsideration of the said ruling of that the testator signed, or expressly caused another to sign, the will
respondent court, but the same was denied in the latter's resolution of and every page thereof in the presence of the attesting witnesses; and
January 14, 1992, 12 hence this appeal now before us. Petitioners assert (3) that the attesting witnesses witnessed the signing by the testator of
that respondent court has ruled upon said issue in a manner not in the will and all its pages, and that said witnesses also signed the
accord with the law and settled jurisprudence on the matter and are will and every page thereof in the presence of the testator and of one
now questioning once more, on the same ground as that raised before another.
respondent court, the validity of the attestation clause in the last will
of Mateo Caballero. The purpose of the law in requiring the clause to state the number of
pages on which the will is written is to safeguard against possible
We find the present petition to be meritorious, as we shall shortly interpolation or omission of one or some of its pages and to prevent
hereafter, after some prefatory observations which we feel should be any increase or decrease in the pages; 23 whereas the subscription of
made in aid of the rationale for our resolution of the controversy. the signature of the testator and the attesting witnesses is made for the
purpose of authentication and identification, and thus indicates that the
1. A will has been defined as a species of conveyance whereby a person will is the very same instrument executed by the testator and attested
is permitted, with the formalities prescribed by law, to control to a to by the witnesses. 24
certain degree the disposition of his estate after his death. 13 Under the
Civil Code, there are two kinds of wills which a testator may Further, by attesting and subscribing to the will, the witnesses thereby
execute. 14 the first kind is the ordinary or attested will, the execution declare the due execution of the will as embodied in the attestation
of which is governed by Articles 804 to 809 of the Code. Article 805 clause. 25 The attestation clause, therefore, provide strong legal
requires that: guaranties for the due execution of a will and to insure the authenticity
Art. 805. Every will, other than a holographic will, must be thereof. 26 As it appertains only to the witnesses and not to the testator,
subscribed at the end thereof by the testator himself or by the it need be signed only by them. 27Where it is left unsigned, it would
testator's name written by some other person in his presence, result in the invalidation of the will as it would be possible and easy to
and by his express direction, and attested and subscribed by add the clause on a subsequent occasion in the absence of the testator
three or more credible witnesses in the presence of the and its witnesses. 28
testator and of one another.
In its report, the Code Commission commented on the reasons of the
The testator or the person requested by him to write his name law for requiring the formalities to be followed in the execution of
and the instrumental witnesses of the will, shall also sign, as wills, in the following manner:
aforesaid, each and every page thereof, except the last, on The underlying and fundamental objectives permeating the
the left margin, and all the pages shall be numbered provisions on the law on wills in this Project consists in the
correlatively in letters placed on the upper part of each page. liberalization of the manner of their execution with the end
in view of giving the testator more freedom in expressing his
The attestation should state the number of pages used upon last wishes, but with sufficient safeguards and restrictions to
which the will is written, and the fact that the testator signed

38
prevent the commission of fraud and the exercise of undue It is our considered view that the absence of that statement required by
and improper pressure and influence upon the testator. law is a fatal defect or imperfection which must necessarily result in
the disallowance of the will that is here sought to be admitted to
This objective is in accord with the modern tendency with probate. Petitioners are correct in pointing out that the aforestated
respect to the formalities in the execution of wills. . . . 29 defect in the attestation clause obviously cannot be characterized as
merely involving the form of the will or the language used therein
2. An examination of the last will and testament of Mateo Caballero which would warrant the application of the substantial compliance
shows that it is comprised of three sheets all of which have been rule, as contemplated in the pertinent provision thereon in the Civil
numbered correlatively, with the left margin of each page thereof Code, to wit:
bearing the respective signatures of the testator and the three attesting Art. 809. In the absence of bad faith, forgery, or fraud, or
witnesses. The part of the will containing the testamentary dispositions undue and improper pressure and influence, defects and
is expressed in the Cebuano-Visayan dialect and is signed at the foot imperfections in the form of attestation or in the
thereof by the testator. The attestation clause in question, on the other language used therein shall not render the will invalid if it is
hand, is recited in the English language and is likewise signed at the not proved that the will was in fact executed and attested in
end thereof by the three attesting witnesses hereto. 30 Since it is the substantial compliance with all the requirements of article
proverbial bone of contention, we reproduce it again for facility of 805" (Emphasis supplied.)
reference:
We, the undersigned attesting Witnesses, whose Residences While it may be true that the attestation clause is indeed subscribed at
and postal addresses appear on the Opposite of our the end thereof and at the left margin of each page by the three attesting
respective names, we do hereby certify that the Testament witnesses, it certainly cannot be conclusively inferred therefrom that
was read by him and the testator, MATEO CABALLERO; the said witness affixed their respective signatures in the presence of
has published unto us the foregoing Will consisting of the testator and of each other since, as petitioners correctly observed,
THREE PAGES, including the Acknowledgment, each page the presence of said signatures only establishes the fact that it was
numbered correlatively in the letters on the upper part of indeed signed, but it does not prove that the attesting witnesses did
each page, as his Last Will and Testament and he has the subscribe to the will in the presence of the testator and of each other.
same and every page thereof, on the spaces provided for his The execution of a will is supposed to be one act so that where the
signature and on the left hand margin, in the presence of the testator and the witnesses sign on various days or occasions and in
said testator and in the presence of each and all of us. various combinations, the will cannot be stamped with the imprimatur
of effectivity. 33
It will be noted that Article 805 requires that the witness should both
attest and subscribe to the will in the presence of the testator and of We believe that the further comment of former Justice J.B.L.
one another. "Attestation" and "subscription" differ in meaning. Reyes 34 regarding Article 809, wherein he urged caution in the
Attestation is the act of senses, while subscription is the act of the hand. application of the substantial compliance rule therein, is correct and
The former is mental, the latter mechanical, and to attest a will is to should be applied in the case under consideration, as well as to future
know that it was published as such, and to certify the facts required to cases with similar questions:
constitute an actual and legal publication; but to subscribe a paper . . . The rule must be limited to disregarding those defects
published as a will is only to write on the same paper the names of the that can be supplied by an examination of the will itself:
witnesses, for the sole purpose of identification. 31 whether all the pages are consecutively numbered; whether
the signatures appear in each and every page; whether the
In Taboada vs. Rizal, 32 we clarified that attestation consists in subscribing witnesses are three or the will was notarized. All
witnessing the testator's execution of the will in order to see and take theses are facts that the will itself can reveal, and defects or
note mentally that those things are done which the statute requires for even omissions concerning them in the attestation clause can
the execution of a will and that the signature of the testator exists as a be safely disregarded. But the total number of pages, and
fact. On the other hand, subscription is the signing of the witnesses' whether all persons required to sign did so in the presence
names upon the same paper for the purpose of identification of such of each other must substantially appear in the attestation
paper as the will which was executed by the testator. As it involves a clause, being the only check against perjury in the probate
mental act, there would be no means, therefore, of ascertaining by a proceedings. (Emphasis ours.)
physical examination of the will whether the witnesses had indeed
signed in the presence of the testator and of each other unless this is 3. We stress once more that under Article 809, the defects and
substantially expressed in the attestation. imperfections must only be with respect to the form of the attestation
or the language employed therein. Such defects or imperfections would
It is contended by petitioners that the aforequoted attestation clause, in not render a will invalid should it be proved that the will was really
contravention of the express requirements of the third paragraph of executed and attested in compliance with Article 805. In this regard,
Article 805 of the Civil Code for attestation clauses, fails to however, the manner of proving the due execution and attestation has
specifically state the fact that the attesting witnesses the testator sign been held to be limited to merely an examination of the will itself
the will and all its pages in their presence and that they, the witnesses, without resorting to evidence aliunde, whether oral or written.
likewise signed the will and every page thereof in the presence of the
testator and of each other. We agree. The foregoing considerations do not apply where the attestation clause
totally omits the fact that the attesting witnesses signed each and every
What is fairly apparent upon a careful reading of the attestation clause page of the will in the presence of the testator and of each other. 35 In
herein assailed is the fact that while it recites that the testator indeed such a situation, the defect is not only in the form or language of the
signed the will and all its pages in the presence of the three attesting attestation clause but the total absence of a specific element required
witnesses and states as well the number of pages that were used, the by Article 805 to be specifically stated in the attestation clause of a
same does not expressly state therein the circumstance that said will. That is precisely the defect complained of in the present case since
witnesses subscribed their respective signatures to the will in the there is no plausible way by which we can read into the questioned
presence of the testator and of each other. attestation clause statement, or an implication thereof, that the attesting
witness did actually bear witness to the signing by the testator of the
The phrase "and he has signed the same and every page thereof, on the will and all of its pages and that said instrumental witnesses also signed
spaces provided for his signature and on the left hand margin," the will and every page thereof in the presence of the testator and of
obviously refers to the testator and not the instrumental witnesses as it one another.
is immediately preceded by the words "as his Last Will and
Testament." On the other hand, although the words "in the presence of Furthermore, the rule on substantial compliance in Article 809 cannot
the testator and in the presence of each and all of us" may, at first blush, be revoked or relied on by respondents since it presupposes that the
appear to likewise signify and refer to the witnesses, it must, however, defects in the attestation clause can be cured or supplied by the text of
be interpreted as referring only to the testator signing in the presence the will or a consideration of matters apparent therefrom which would
of the witnesses since said phrase immediately follows the words provide the data not expressed in the attestation clause or from which
"he has signed the same and every page thereof, on the spaces provided it may necessarily be gleaned or clearly inferred that the acts not stated
for his signature and on the left hand margin." What is then clearly in the omitted textual requirements were actually complied within the
lacking, in the final logical analysis , is the statement that the witnesses execution of the will. In other words, defects must be remedied by
signed the will and every page thereof in the presence of the testator intrinsic evidence supplied by the will itself.
and of one another.
In the case at bar, contrarily, proof of the acts required to have been
performed by the attesting witnesses can be supplied by only extrinsic

39
evidence thereof, since an overall appreciation of the contents of the document itself, and the omission to state such evident facts
will yields no basis whatsoever from with such facts may be plausibly does not invalidate the will.
deduced. What private respondent insists on are the testimonies of his
witnesses alleging that they saw the compliance with such It is a habit of courts to reaffirm or distinguish previous
requirements by the instrumental witnesses, oblivious of the fact that cases; seldom do they admit inconsistency in doctrine. Yet
he is thereby resorting to extrinsic evidence to prove the same and here, unless aided impossible to reconcile the Mojal and
would accordingly be doing by the indirection what in law he cannot Quintana decisions. They are fundamentally at variance. If
do directly. we rely on one, we affirm. If we rely on the other, we reverse.

4. Prior to the advent of the Civil Code on August 30, 1950, there was In resolving this puzzling question of authority, three
a divergence of views as to which manner of interpretation should be outstanding points may be mentioned. In the first place, the
followed in resolving issues centering on compliance with the legal Mojal, decision was concurred in by only four members of
formalities required in the execution of wills. The formal requirements the court, less than a majority, with two strong dissenting
were at that time embodied primarily in Section 618 of Act No. 190, opinions; the Quintana decision was concurred in by seven
the Code of Civil Procedure. Said section was later amended by Act members of the court, a clear majority, with one formal
No. 2645, but the provisions respecting said formalities found in Act. dissent. In the second place, the Mojal decision was
No. 190 and the amendment thereto were practically reproduced and promulgated in December, 1924, while the Quintana
adopted in the Civil Code. decision was promulgated in December, 1925; the Quintana
decision was thus subsequent in point of time. And in the
One view advance the liberal or substantial compliance rule. This was third place, the Quintana decision is believed more nearly to
first laid down in the case of Abangan vs. Abangan, 36 where it was conform to the applicable provisions of the law.
held that the object of the solemnities surrounding the execution of
wills is to close the door against bad faith and fraud, to avoid The right to dispose of property by will is governed entirely
substitution of wills and testaments and to guarantee their truth and by statute. The law of the case is here found in section 61 of
authenticity. Therefore, the laws on this subject should be interpreted the Code of Civil Procedure as amended by Act No. 2645,
in such a way as to attain these primordial ends. Nonetheless, it was and in section 634 of the same Code, as unamended. It is in
also emphasized that one must not lose sight of the fact that it is not part provided in section 61, as amended that "No will . .
the object of the law to restrain and curtail the exercise of the right to . shall be valid . . . unless . . .." It is further provided in the
make a will, hence when an interpretation already given assures such same section that "The attestation shall state the number of
ends, any other interpretation whatsoever that adds nothing but sheets or pages used, upon which the will is written, and the
demands more requisites entirely unnecessary, useless and frustrative fact that the testator signed the will and every page thereof,
of the testator's last will, must be disregarded. The subsequent cases or caused some other person to write his name, under his
of Avera vs. Garcia, 37 Aldaba vs. Roque,38 Unson vs. express direction, in the presence of three witnesses, and the
Abella, 39 Pecson vs. Coronel, 40 Fernandez vs. Vergel de Dios, et latter witnessed and signed the will and all pages thereof in
al., 41 and Nayve vs. Mojal, et al. 42 all adhered to this position. the presence of the testator and of each other." Codal section
634 provides that "The will shall be disallowed in either of
The other view which advocated the rule that statutes which prescribe the following case: 1. If not executed and attested as in this
the formalities that should be observed in the execution of wills are Act provided." The law not alone carefully makes use of the
mandatory in nature and are to be strictly construed was followed in imperative, but cautiously goes further and makes use of the
the subsequent cases of In the Matter of the Estate of Saguinsin, 43 In negative, to enforce legislative intention. It is not within the
re Will of Andrada, 44 Uy Coque vs. Sioca, 45 In re Estate of province of the courts to disregard the legislative purpose so
Neumark, 46 and Sano vs. Quintana. 47 emphatically and clearly expressed.

Gumban vs. Gorecho, et al., 48 provided the Court with the occasion to We adopt and reaffirm the decision in the case of Sano vs.
clarify the seemingly conflicting decisions in the aforementioned Quintana, supra, and, to the extent necessary, modify the
cases. In said case of Gumban, the attestation clause had failed to state decision in the case of Nayve vs. Mojal and Aguilar, supra.
that the witnesses signed the will and each and every page thereof on (Emphases in the original text).
the left margin in the presence of the testator. The will in question was
disallowed, with these reasons therefor: But after the Gumban clarificatory pronouncement, there were
In support of their argument on the assignment of error decisions of the Court that once more appeared to revive the seeming
above-mentioned, appellants rely on a series of cases of this diversity of views that was earlier threshed out therein. The cases
court beginning with (I)n the Matter of the (E)state of of Quinto vs. Morata, 49Rodriguez vs. Alcala, 50 Enchevarria vs.
Saguinsin ([1920], 41 Phil., 875), continuing with In re Will Sarmiento, 51 and Testate Estate of Toray 52 went the way of the ruling
of Andrada [1921], 42 Phil., 180), Uy Coque vs. Navas L. as restated in Gumban. But De Gala vs. Gonzales, et al., 53 Rey vs.
Sioca [1922], 43 Phil., 405), and In re Estate of Neumark Cartagena, 54 De Ticson vs. De Gorostiza, 55 Sebastian vs.
([1923], 46 Phil., 841), and ending with Sano vs. Panganiban, 56 Rodriguez vs. Yap, 57 Grey vs. Fabia, 58 Leynez vs.
Quintana ([1925], 48 Phil., 506). Appellee counters with the Leynez, 59 Martir vs. Martir, 60 Alcala vs. De Villa, 61Sabado vs.
citation of a series of cases beginning with Abangan vs. Fernandez, 62 Mendoza vs. Pilapil, 63 and Lopez vs. Liboro, 64 veered
Abangan ([1919], 40 Phil., 476), continuing through Aldaba away from the strict interpretation rule and established a trend toward
vs. Roque ([1922], 43 Phil., 378), and Fernandez vs. Vergel an application of the liberal view.
de Dios ([1924], 46 Phil., 922), and culminating in Nayve vs.
Mojal and Aguilar ([1924], 47 Phil., 152). In its last analysis, The Code Commission, cognizant of such a conflicting welter of views
our task is to contrast and, if possible, conciliate the last two and of the undeniable inclination towards a liberal construction,
decisions cited by opposing counsel, namely, those of Sano recommended the codification of the substantial compliance rule, as it
vs. Quintana, supra, and Nayve vs. Mojal and believed this rule to be in accord with the modern tendency to give a
Aguilar, supra. liberal approach to the interpretation of wills. Said rule thus became
what is now Article 809 of the Civil Code, with this explanation of the
In the case of Sano vs. Quintana, supra, it was decided that Code Commission:
an attestation clause which does not recite that the witnesses The present law provides for only one form of executing a
signed the will and each and every page thereof on the left will, and that is, in accordance with the formalities
margin in the presence of the testator is defective, and such prescribed by Section 618 of the Code of Civil Procedure as
a defect annuls the will. The case of Uy Coque vs. amended by Act No. 2645. The Supreme Court of the
Sioca, supra, was cited, but the case of Nayve vs. Mojal and Philippines had previously upheld the strict compliance with
Aguilar, supra, was not mentioned. In contrast, is the the legal formalities and had even said that the provisions of
decision in Nayve vs. Mojal and Aguilar, supra, wherein it Section 618 of the Code of Civil Procedure, as amended
was held that the attestation clause must estate the fact that regarding the contents of the attestation clause were
the testator and the witnesses reciprocally saw the signing of mandatory, and non-compliance therewith invalidated the
the will, for such an act cannot be proved by the mere will (Uy Coque vs. Sioca, 43 Phil. 405). These decisions
exhibition of the will, if it is not stated therein. It was also necessarily restrained the freedom of the testator in
held that the fact that the testator and the witnesses signed disposing of his property.
each and every page of the will can be proved also by the
mere examination of the signatures appearing on the However, in recent years the Supreme Court changed its
attitude and has become more liberal in the interpretation of

40
the formalities in the execution of wills. This liberal view is Polomolok Credit Cooperative, Inc., (PCCI), entrusted with
enunciated in the cases of Rodriguez vs. Yap, G.R. No. the duty of managing the aff[a]irs of the cooperative,
45924, May 18, 1939; Leynez vs. Leynez, G.R. No. 46097, receiving payments to, and collections of, the same, and
October 18, 1939; Martir vs. Martir, G.R. No. 46995, June paying out loans to members, taking advantage of her
21, 1940; and Alcala vs. Villa, G.R. No. 47351, April 18, position and with intent to prejudice and defraud the
1941. cooperative, did then and there willfully, unlawfully and
feloniously falsify a commercial document, namely:
In the above mentioned decisions of our Supreme Court, it Cash/Check Voucher No. 30-A of PCCI in the name of
has practically gone back to the original provisions of Erlinda Omadlao by then and there making an entry therein
Section 618 of the Code of Civil Procedure before its that the said Erlinda Omadlao was granted a loan of P4,160,
amendment by Act No. 2645 in the year 1916. To turn this Philippine Currency, and by signing on the appropriate line
attitude into a legislative declaration and to attain the main thereon the signature of Erlinda Omadlao showing that she
objective of the proposed Code in the liberalization of the received the loan, thus making it appear that the said Erlinda
manner of executing wills, article 829 of the Project is Omadlao was granted a loan and received the amount of
recommended, which reads: P4,160 when in truth and in fact the said person was never
"Art. 829. In the absence of bad faith, forgery, or granted a loan, never received the same, and never signed
fraud, or undue and improper pressure and the cash/check voucher issued in her name, and in
influence, defects and imperfections in the form of furtherance of her criminal intent and fraudulent design to
attestation or in the language used therein shall not defraud PCCI said accused did then and there release to
render the will invalid if it is proved that the will herself the same and received the loan of P4,160 and
was in fact executed and attested in substantial thereafter misappropriate and convert to her own use and
compliance with all the requirements of article benefit the said amount, and despite demands, refused and
829."65 still refuses to restitute the same, to the damage and
prejudice of PCCI, in the aforementioned amount of P4,160,
The so-called liberal rule, the Court said in Gil vs. Murciano, 66 "does Philippine Currency.5
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; Criminal Case No. 3626
they draw the dividing line with precision. They do not allow That on or about the 24th day of September, 1982 at
evidence aliunde to fill a void in any part of the document or supply Poblacion, Municipality of Polomolok, Province of South
missing details that should appear in the will itself. They only permit a Cotabato, Philippines, and within the jurisdiction of the
probe into the will, an exploration into its confines, to ascertain its Honorable Court, said accused being then the manager-
meaning or to determine the existence or absence of the requisite cashier of Polomolok Credit Cooperative, Inc. (PCCI),
formalities of law. This clear, sharp limitation eliminates uncertainty entrusted with the duty of managing the affairs of the
and ought to banish any fear of dire results." cooperative, receiving payments to, and collections of, the
same, and paying out loans to members taking advantage of
It may thus be stated that the rule, as it now stands, is that omissions her position and with intent to prejudice and defraud the
which can be supplied by an examination of the will itself, without the cooperative, did then and there willfully, unlawfully and
need of resorting to extrinsic evidence, will not be fatal and, feloniously falsify a commercial document, namely:
correspondingly, would not obstruct the allowance to probate of the Cash/Check Voucher No. 237 A of PCCI in the name of
will being assailed. However, those omissions which cannot be Gonafreda Oracion by then and there making an entry
supplied except by evidence aliunde would result in the invalidation of therein that the said Gonafreda Oracion was granted a loan
the attestation clause and ultimately, of the will itself.67 of P4,000.00 and by signals on the appropriate line thereon
the signature of Gonafreda Oracion showing that she
WHEREFORE, the petition is hereby GRANTED and the impugned received the loan, thus making it appear that the said
decision of respondent court is hereby REVERSED and SET ASIDE. Gonafreda Oracion was granted a loan, received the loan of
The court a quo is accordingly directed to forthwith DISMISS its P4,000.00 when in truth and in fact said person was never
Special Proceeding No. 3899-R (Petition for the Probate of the Last granted a loan, never received the same, and never signed
Will and Testament of Mateo Caballero) and to REVIVE Special the Cash/Check voucher issued in her name, and in
Proceeding No. 3965-R (In the matter of the Intestate Estate of Mateo furtherance of her criminal intent and fraudulent design to
Caballero) as an active case and thereafter duly proceed with the defraud PCCI said accused did then and there release to
settlement of the estate of the said decedent. SO ORDERED. herself the same and received the amount of P4,000.00 and
thereafter misappropriate and convert to her own use and
G.R. No. 139857 September 15, 2006 benefit the said amount, and despite demands, refused and
still refuses to restitute the same, to the damage and
LEONILA BATULANON, petitioner, vs. prejudice of PCCI, in the aforementioned amount of P4,000,
PEOPLE OF THE PHILIPPINES, respondent. Philippine Currency.
DECISION CONTRARY TO LAW.6

YNARES-SANTIAGO, J.: Criminal Case No. 3453


That on or about the 10th day of October 1982 at Poblacion,
This petition assails the October 30, 1998 Decision1 of the Court of Municipality of Polomolok, Province of South Cotabato,
Appeals in CA-G.R. CR No. 15221, affirming with modification the Philippines, and within the jurisdiction of the Honorable
April 15, 1993 Decision2 of the Regional Trial Court of General Santos Court, the said accused being then the manager-cashier of
City, Branch 22 in Criminal Case Nos. 3453, 3625, 3626 and 3627, Polomolok Credit Cooperative, Inc., (PCCI), entrusted with
convicting Leonila Batulanon of estafa through falsification of the duty of managing the affairs of the cooperative, receiving
commercial documents, and the July 29, 1999 Resolution3 denying the payments to, and collection of the same and paying out loans
motion for reconsideration. to members, taking advantage of her position and with intent
to prejudice and defraud the cooperative, did then and there
Complainant Polomolok Credit Cooperative Incorporated (PCCI) willfully, unlawfully and feloniously falsify a commercial
employed Batulanon as its Cashier/Manager from May 1980 up to document, namely: an Individual Deposits and Loan Ledger
December 22, 1982. She was in charge of receiving deposits from and of one Ferlyn Arroyo with the PCCI by then and there
releasing loans to the member of the cooperative. entering on the appropriate column of the ledger the entry
that the said Ferlyn Arroyo had a fixed deposit of P1,000.00
During an audit conducted in December 1982, certain irregularities with the PCCI and was granted a loan in the amount of
concerning the release of loans were discovered.4 P3,500.00, thus making it appear that the said person made
Thereafter, four informations for estafa thru falsification of a fixed deposit on the aforesaid date with, and was granted a
commercial documents were filed against Batulanon, to wit: loan by the PCCI when in truth and in fact Ferlyn Arroyo
never made such a deposit and was never granted loan and
Criminal Case No. 3625 after the document was so falsified in the manner set forth,
That on or about the 2nd day of June, 1982 at Poblacion said accused did then and there again falsify the Cash/Check
Municipality of Polomolok, Province of South Cotabato, Voucher of the PCCI in the name of Ferlyn Arroyo by
Philippines, and within the jurisdiction of the Honorable signing therein the signature of Ferlyn Arroyo, thus making
Court said accused being then the manager-cashier of it appear that the said Ferlyn Arroyo received the loan of

41
P3,500, Philippine Currency, when in truth and in fact said Medallo categorically stated that she saw Batulanon sign the names of
Ferlyn Arroyo never received the loan, and in furtherance of Oracion and Arroyo in their respective cash vouchers and made it
her criminal intent and fraudulent design to defraud PCCI appear in the records that they were payees and recipients of the
said accused did then and there release to herself the same, amount stated therein.18 As to the signature of Omadlao in Cash
and received the amount of P3,500, and thereafter, did then Voucher No. 30A, she declared that the same was actually the
and there, wilfully, unlawfully and feloniously handwriting of appellant.19
misappropriate and convert to her own personal use and
benefit the said amount, and despite demands, refused and Gopio, Jr. was a member of PCCI since 1975 and a member of its board
still refuses to restitute the same, to the damage and of directors since 1979. He corroborated Medallo's testimony that
prejudice of the PCCI in the aforementioned amount of Omadlao, Arroyo, Oracion and Dennis Batulanon are not members of
P3,500, Philippine Currency. PCCI. He stated that Oracion is Batulanon's sister-in-law while Dennis
CONTRARY TO LAW.7 Batulanon is her son who was only 3 years old in 1982. He averred that
membership in the cooperative is not open to minors.20
Criminal Case No. 3627
That on or about the 7th day of December, 1982 at Jayoma was the Vice-Chairman of the PCCI Board of Directors in
Poblacion, Municipality of Polomolok, Province of South 1980 before becoming its Chairman in 1982 until 1983. He testified
Cotabato, Philippines, and within the jurisdiction of the that the loans made to Oracion, Omadlao, Arroyo and Dennis
Honorable Court, the said accused being then the manager- Batulanon did not pass through the cooperative's Credit Committee
cashier of Polomolok Credit Cooperative, Inc., (PCCI) and PCCI's Board of Directors for screening purposes. He claimed that
entrusted with the duty of managing the affairs of the Oracion's signature on Cash Voucher No. 237A is Batulanon's
cooperative, receiving payments to, and collection of, the handwriting.21 Jayoma also testified that among the four loans taken,
same and paying out loans to members, taking advantage of only that in Arroyo's name was settled.22
her position and with intent to prejudice and defraud the
cooperative, did then and there willfully, unlawfully and The defense presented two witnesses, namely, Maria Theresa Medallo
feloniously falsify a commercial document, namely: an who was presented as a hostile witness and Batulanon.
Individual Deposits and Loan Ledger of one Dennis
Batulanon with the PCCI by then and there entering on the Medallo was subpoenaed by the trial court on behalf of the defense and
appropriate column of the ledger the entry that the said was asked to bring with her the PCCI General Journal for the year
Dennis Batulanon had a fixed deposit of P2,000.00 with the 1982. After certifying that the said document reflected all the financial
PCCI and was granted a loan in the amount of P5,000.00 transactions of the cooperative for that year, she was asked to identify
thus making it appear that the said person made fixed deposit the entries in the Journal with respect to the vouchers in question.
on the aforesaid date with, and was granted a loan by the Medallo was able to identify only Cash Voucher No. 237A in the name
PCCI when in truth and in fact Dennis Batulanon never made of Gonafreda Oracion. She failed to identify the other vouchers
such a deposit and was never granted loan and offer the because the Journal had missing pages and she was not the one who
document was so falsified in the manner set forth, said prepared the entries.23
accused did then and there again falsify the Cash/Check
Voucher No. 374 A of PCCI in the name of Dennis Batulanon denied all the charges against her. She claimed that she did
Batulanon by signing therein the signature of Dennis not sign the vouchers in the names of Omadlao, Oracion and Arroyo;
Batulanon, thus making it appear that the said Dennis that the same were signed by the loan applicants in her presence at the
Batulanon received the loan of P5,000.00 when in truth and PCCI office after she personally released the money to them;24 that the
in fact said Dennis Batulanon never received the loan and in three were members of the cooperative as shown by their individual
furtherance of her criminal intent and fraudulent design to deposits and the ledger; that the board of directors passed a resolution
defraud PCCI said accused did then and there release to in August 1982 authorizing her to certify to the correctness of the
herself the same and receive the loan of P5,000, and entries in the vouchers; that it has become an accepted practice in the
thereafter, did then and there willfully, unlawfully and cooperative for her to release loans and dispense with the approval of
feloniously misappropriate and convert to her own personal Gopio Jr., in case of his absence;25that she signed the loan application
use and benefit the said amount, and [despite] demands, and voucher of her son Dennis Batulanon because he was a minor but
refused and still refuses to restitute the same to the damage she clarified that she asked Gopio, Jr., to add his signature on the
and prejudice of the PCCI in the aforementioned amount of documents to avoid suspicion of irregularity;26 that contrary to the
P5,000, Philippine Currency. testimony of Gopio, Jr., minors are eligible for membership in the
CONTRARY TO LAW.8 cooperative provided they are children of regular members.

The cases were raffled to Branch 22 of the Regional Trial Court of Batulanon admitted that she took out a loan in her son's name because
General Santos City and docketed as Criminal Case Nos. 3453, 3625, she is no longer qualified for another loan as she still has to pay off an
3626 and 3627. existing loan; that she had started paying off her son's loan but the
cooperative refused to accept her payments after the cases were filed
Batulanon pleaded not guilty to the charges, afterwhich a joint trial on in court.27 She also declared that one automatically becomes a member
the merits ensued. when he deposits money with the cooperative.28 When she was
Cashier/Manager of PCCI from 1980 to 1982, the cooperative did not
The prosecution presented Maria Theresa Medallo, Benedicto Gopio, have by-laws yet.29
Jr., and Bonifacio Jayoma as witnesses.
On rebuttal, Jayoma belied that PCCI had no by-laws from 1980-1982,
Medallo, the posting clerk whose job was to assist Batulanon in the because the cooperative had been registered since 1967.30
preparation of cash vouchers9 testified that on certain dates in 1982,
Batulanon released four Cash Vouchers representing varying amounts On April 15, 1993, the trial court rendered a Decision convicting
to four different individuals as follows: On June 2, 1982, Cash Batulanon as follows:
Voucher No. 30A10 for P4,160.00 was released to Erlinda Omadlao; WHEREFORE, premises considered, finding the accused
on September 24, 1982, Cash Voucher No. 237A11 for P4,000.00 was Leonila Batulanon guilty beyond reasonable doubt in all the
released to Gonafreda12Oracion; P3, 500.00 thru Cash Voucher No. above-entitled case, she is sentenced in each of the four cases
276A13 was released to Ferlyn Arroyo on October 16, 1982 and on to 4 months of ARRESTO MAYOR to 1 year and 2 months
December 7, 1982, P5,000.00 was released to Dennis Batulanon thru of PRISION CORRECTIONAL, to indemnify the PCCI in
Cash Voucher No. 374A.14 the total sum of P16,660.00 with legal interest from the
institution of the complaints until fully paid, plus costs. SO
Medallo testified that Omadlao, Oracion, and Dennis Batulanon were ORDERED.31
not eligible to apply for loan because they were not bona fide members
of the cooperative.15 Ferlyn Arroyo on the other hand, was a member The Court of Appeals affirmed with modification the decision of the
of the cooperative but there was no proof that she applied for a loan trial court, thus:
with PCCI in 1982. She subsequently withdrew her membership in WHEREFORE, the decision appealed from is MODIFIED.
1983.16 Medallo stated that pursuant to the cooperative's by-laws, only Appellant LEONILA BATULANON is found guilty beyond
bona fide members who must have a fixed deposit are eligible for reasonable doubt of Falsification of Private Documents
loans.17 under Par. 2, Article 172 of the Revised Penal Code; and is
hereby sentenced to suffer the indeterminate penalty of six
(6) months of arresto mayor maximum, AS MINIMUM, to

42
four (4) years and two (2) months of prision upon which the witness has acted or been charged, and has thus
correccional medium, AS MAXIMUM; to pay a fine of five acquired knowledge of the handwriting of such person.
thousand (P5,000.00) pesos; and to indemnify the
Polomolok Cooperative Credit , Inc. the sum of thirteen Her insistence that Medallo is a biased witness is without basis. There
thousand one hundred sixty (P13,160.00), plus legal is no evidence showing that Medallo was prompted by any ill motive.
interests from the filing of the complaints until fully paid,
plus costs. SO ORDERED.32 The claim that Batulanon's letter to the cooperative asking for a
compromise was not an admission of guilt is untenable. Section 27,
The motion for reconsideration was denied, hence this petition. Rule 130 of the Rules of Court provides that in criminal cases, except
Batulanon argues that in any falsification case, the best witness is the those involving quasi-offenses or criminal negligence or those allowed
person whose signature was allegedly forged, thus the prosecution by law to be compromised, an offer of compromise by the accused may
should have presented Erlinda Omadlao, Gonafreda Oracion and be received in evidence as an implied admission of guilt.
Ferlyn Arroyo instead of relying on the testimony of an unreliable and
biased witness such as Medallo.33 She avers that the crime of There is no merit in Batulanon's assertion that PCCI has not been
falsification of private document requires as an element prejudice to a prejudiced because the loan transactions are reflected in its books as
third person. She insists that PCCI has not been prejudiced by these accounts receivable. It has been established that PCCI only grants
loan transactions because these loans are accounts receivable by the loans to its bona fide members with no subsisting loan. These alleged
cooperative.34 borrowers are not members of PCCI and neither are they eligible for a
loan. Of the four accounts, only that in Ferlyn Arroyo's name was
The petition lacks merit. settled because her mother, Erlinda, agreed to settle the loan to avoid
legal prosecution with the understanding however, that she will be
Although the offense charged in the information is estafa through reimbursed once the money is collected from Batulanon.39
falsification of commercial document, appellant could be convicted of
falsification of private document under the well-settled rule that it is The Court of Appeals40 correctly ruled that the subject vouchers are
the allegations in the information that determines the nature of the private documents and not commercial documents because they are not
offense and not the technical name given in the preamble of the documents used by merchants or businessmen to promote or facilitate
information. In Andaya v. People,35 we held: trade or credit transactions41 nor are they defined and regulated by the
From a legal point of view, and in a very real sense, it is of Code of Commerce or other commercial law.42Rather, they are private
no concern to the accused what is the technical name of the documents, which have been defined as deeds or instruments executed
crime of which he stands charged. It in no way aids him in a by a private person without the intervention of a public notary or of
defense on the merits. x x x That to which his attention other person legally authorized, by which some disposition or
should be directed, and in which he, above all things else, agreement is proved, evidenced or set forth. 43
should be most interested, are the facts alleged. The real
question is not did he commit a crime given in the law some In all criminal prosecutions, the burden of proof is on the prosecution
technical and specific name, but did he perform the acts to establish the guilt of the accused beyond reasonable doubt. It has the
alleged in the body of the information in the manner therein duty to prove each and every element of the crime charged in the
set forth. x x x The real and important question to him is, information to warrant a finding of guilt for the said crime or for any
"Did you perform the acts alleged in the manner alleged?" other crime necessarily included therein.44 The prosecution in this case
not, "Did you commit a crime named murder?" If he was able to discharge its burden completely.
performed the acts alleged, in the manner stated, the law
determines what the name of the crime is and fixes the As there is no complex crime of estafa through falsification of private
penalty therefor. x x x If the accused performed the acts document,45 it is important to ascertain whether the offender is to be
alleged in the manner alleged, then he ought to be punished charged with falsification of a private document or with estafa. If the
and punished adequately, whatever may be the name of the falsification of a private document is committed as a means to commit
crime which those acts constitute. estafa, the proper crime to be charged is falsification. If the estafa can
be committed without the necessity of falsifying a document, the
The elements of falsification of private document under Article 172, proper crime to be charged is estafa. Thus, in People v. Reyes,46 the
paragraph 236 of the Revised Penal Code are: (1) that the offender accused made it appear in the time book of the Calamba Sugar Estate
committed any of the acts of falsification, except those in paragraph 7, that a laborer, Ciriaco Sario, worked 21 days during the month of July,
Article 171; (2) that the falsification was committed in any private 1929, when in reality he had worked only 11 days, and then charged
document; and (3) that the falsification caused damage to a third party the offended party, the Calamba Sugar Estate, the wages of the laborer
or at least the falsification was committed with intent to cause such for 21 days. The accused misappropriated the wages during which the
damage.37 laborer did not work for which he was convicted of falsification of
private document.
In Criminal Case Nos. 3625, 3626, and 3453, Batulanon's act 38 of
falsification falls under paragraph 2 of Article 171, i.e., causing it to In U.S. v. Infante,47 the accused changed the description of the pawned
appear that persons have participated in any act or proceeding when article on the face of the pawn ticket and made it appear that the article
they did not in fact so participate. This is because by signing the name is of greatly superior value, and thereafter pawned the falsified ticket
of Omadlao, Oracion, and Arroyo in Cash Voucher Nos. 30A, 237A, in another pawnshop for an amount largely in excess of the true value
and 267A, respectively, as payee of the amounts appearing in the of the article pawned. He was found guilty of falsification of a private
corresponding cash vouchers, Batulanon made it appear that they document. In U.S. v. Chan Tiao,48 the accused presented a document
obtained a loan and received its proceeds when they did not in fact of guaranty purportedly signed by Ortigas Hermanos for the payment
secure said loan nor receive the amounts reflected in the cash vouchers. of P2,055.00 as the value of 150 sacks of sugar, and by means of said
falsified documents, succeeded in obtaining the sacks of sugar, was
The prosecution established that Batulanon caused the preparation of held guilty of falsification of a private document.
the Cash Vouchers in the name of Omadlao and Oracion knowing that
they are not PCCI members and not qualified for a loan from the In view of the foregoing, we find that the Court of Appeals correctly
cooperative. In the case of Arroyo, Batulanon was aware that while the held Batulanon guilty beyond reasonable doubt of Falsification of
former is a member, she did not apply for a loan with the cooperative. Private Documents in Criminal Case Nos. 3625, 3626 and 3453.

Medallo categorically declared that she saw Batulanon forge the Article 172 punishes the crime of Falsification of a Private Document
signatures of Oracion and Arroyo in the vouchers and made it appear with the penalty of prision correccional in its medium and maximum
that the amounts stated therein were actually received by these persons. periods with a duration of two (2) years, four (4) months and one (1)
As to the signature of Arroyo, Medallo's credible testimony and her day to six (6) years. There being no aggravating or mitigating
familiarity with the handwriting of Batulanon proved that it was indeed circumstances, the penalty should be imposed in its medium period,
the latter who signed the name of Arroyo. Contrary to Batulanon's which is three (3) years, six (6) months and twenty-one (21) days to
contention, the prosecution is not duty-bound to present the persons four (4) years, nine (9) months and ten (10) days. Taking into
whose signatures were forged as Medallo's eyewitness account of the consideration the Indeterminate Sentence Law, Batulanon is entitled to
incident was sufficient. Moreover, under Section 22, Rule 132 of the an indeterminate penalty the minimum of which must be within the
Rules of Court, the handwriting of a person may be proved by any range of arresto mayor in its maximum period to prision correccional
witness who believes it to be the handwriting of such person because in its minimum period, or four (4) months and one (1) day to two (2)
he has seen the person write, or has seen writing purporting to be his years and four (4) months.49 Thus, in Criminal Case Nos. 3625, 3626
and 3453, the Court of Appeals correctly imposed the penalty of six

43
(6) months of arresto mayor, as minimum, to four (4) years and two he deposited in his account with the PNB sufficient sum to cover the
(2) months of prision correccional, as maximum, which is within the check. In handing down a judgment of conviction, the Court explained
range of the allowed imposable penalty. that:
Fraudulent intent in committing the conversion or diversion
Since Batulanon's conviction was for 3 counts of falsification of is very evidently not a necessary element of the form of
private documents, she shall suffer the aforementioned penalties for estafa here discussed; the breach of confidence involved in
each count of the offense charged. She is also ordered to indemnify the conversion or diversion of trust funds takes the place of
PCCI the amount of P11,660.00 representing the aggregate amount of fraudulent intent and is in itself sufficient. The reason for this
the 3 loans without deducting the amount of P3,500.00 paid by Ferlyn is obvious: Grave as the offense is, comparatively few men
Arroyo's mother as the same was settled with the understanding that misappropriate trust funds with the intention of defrauding
PCCI will reimburse the former once the money is recovered. The the owner; in most cases the offender hopes to be able to
amount shall earn interest at the rate of 6% per annum from the filing restore the funds before the defalcation is discovered. x x x
of the complaints on November 28, 1994 until the finality of this Applying the legal principles here stated to the facts of the
judgment. From the time the decision becomes final and executory, the case, we find all of the necessary elements of estafa x x x.
interest rate shall be 12% per annum until its satisfaction. That the money for which the appellant's checks were
substituted was received by him for safe-keeping or
However, in Criminal Case No. 3627, the crime committed by administration, or both, can hardly be disputed. He was the
Batulanon is estafa and not falsification. Under Article 171 of the responsible financial officer of the corporation and as such
Revised Penal Code, the acts that may constitute falsification are the had immediate control of the current funds for the purposes
following: of safe-keeping and was charged with the custody of the
1. Counterfeiting or imitating any handwriting, signature, or same. That he, in the exercise of such control and custody,
rubric; was aided by subordinates cannot alter the case nor can the
2. Causing it to appear that persons have participated in any act fact that one of the subordinates, the cashier, was a bonded
or proceeding when they did not in fact so participate; employee who, if he had acted on his own responsibility,
3. Attributing to persons who have participated in an act or might also have misappropriated the same funds and thus
proceeding statements other than those in fact made by them; have become guilty of estafa.
4. Making untruthful statements in a narration of facts;
5. Altering true dates; Neither can there be any doubt that, in taking money for his
6. Making any alteration or intercalation in a genuine document personal use, from the funds entrusted to him for safekeeping
which changes its meaning; and substituting his personal checks therefor with
7. Issuing in an authenticated form a document purporting to instructions that the checks were to be retained by the cashier
be a copy of an original document when no such original for a certain period, the appellant misappropriated and
exists, or including in such copy a statement contrary to, or diverted the funds for that period. The checks did not
different from, that of the genuine original; or; constitute cash and as long as they were retained by the
8. Intercalating any instrument or note relative to the issuance appellant or remained under his personal control they were
thereof in a protocol, registry, or official book. of no value to the corporation; he might as well have kept
them in his pocket as to deliver them to his subordinate with
In Criminal Case No. 3627, the trial court convicted petitioner instructions to retain them.
Batulanon for falsifying Dennis Batulanon's signature in the cash xxxx
voucher based on the Information charging her of signing the name of
her 3 year old son, Dennis. The records, however, reveal that in Cash But it is argued in the present case that it was not the
Voucher No. 374A, petitioner Batulanon did not falsify the signature intention of the accused to permanently misappropriate the
of Dennis. What she did was to sign: "by: lbatulanon" to indicate that funds to himself. As we have already stated, such intention
she received the proceeds of the loan in behalf of Dennis. Said act does rarely exists in cases of this nature and, as we have seen, it
not fall under any of the modes of falsification under Article 171 is not a necessary element of the crime. Though authorities
because there in nothing untruthful about the fact that she used the have been cited who, at first sight, appear to hold that
name of Dennis and that as representative of the latter, obtained the misappropriation of trust funds for short periods does not
proceeds of the loan from PCCI. The essence of falsification is the act always amount to estafa, we are not disposed to extend this
of making untruthful or false statements, which is not attendant in this interpretation of the law to cases where officers of
case. As to whether, such representation involves fraud which caused corporations convert corporate funds to their own use,
damage to PCCI is a different matter which will make her liable especially where, as in this case, the corporation is of a quasi-
for estafa, but not for falsification. Hence, it was an error for the courts public character. The statute is clear and makes no
below to hold that petitioner Batulanon is also guilty of falsification of distinction between permanent misappropriations and
private document with respect to Criminal Case No. 3627 involving temporary ones. We can see no reason in the present case
the cash voucher of Dennis.50 why it should not be applied in its literal sense.

The elements of estafa through conversion or misappropriation under The third element of the crime with which the appellant is
Art. 315 (1) (b) of the Revised Penal Code are: charged is injury to another. The appellant's counsel argues
(1) that money, goods or other personal property is received that the only injury in this case is the loss of interest suffered
by the offender in trust, or on commission, or for by the Railroad Company during the period the funds were
administration, or under any other obligation involving the withheld by the appellant. It is, however, well settled by
duty to make delivery of, or to return, the same; former adjudications of this court that the disturbance in
(2) that there be misappropriation or conversion of such property rights caused by the misappropriation, though only
money or property by the offender or denial on his part of temporary, is in itself sufficient to constitute injury within
such receipt; the meaning of paragraph 5, supra. (U.S. vs. Goyenechea, 8
(3) that such misappropriation or conversion or denial is to Phil., 117 U.S. vs. Malong, 36 Phil., 821.)53
the prejudice of another;
(4) that there is a demand made by the offended party on the In the instant case, there is no doubt that as Cashier/Manager,
offender. (Note: The 4th element is not necessary when there Batulanon holds the money for administration and in trust for PCCI.
is evidence of misappropriation of the goods by the Knowing that she is no longer qualified to obtain a loan, she
defendant)51 fraudulently used the name of her son who is likewise disqualified to
secure a loan from PCCI. Her misappropriation of the amount she
Thus in the case of U.S. v. Sevilla,52 the Court convicted the appellant obtained from the loan is also not disputed as she even admitted
of estafa by misappropriation. The latter, a treasurer of the Manila Rail receiving the same for personal use. Although the amount received by
Road Company, took the sum of P8,330.00 out of the funds of the Batulanon is reflected in the records as part of the receivables of PCCI,
company and used it for personal purposes. He replaced said cash with damage was still caused to the latter because the sum misappropriated
his personal check of the same amount drawn on the Philippine by her could have been loaned by PCCI to qualified members, or used
National Bank (PNB), with instruction to his cashier not to deposit the in other productive undertakings. At any rate, the disturbance in
same in the current account of the Manila Rail Road Company until property rights caused by Batulaono's misappropriation is in itself
the end of the month. When an audit was conducted, the check of sufficient to constitute injury within the meaning of Article 315.
appellant was discovered to have been carried in the accounts as part
of the cash on hand. An inquiry with the PNB disclosed that he had Considering that the amount misappropriated by Batulanon was
only P125.66 in his account, although in the afternoon of the same day, P5,000.00, the applicable provision is paragraph (3) of Article 315 of

44
the Revised Penal Code, which imposes the penalty of arresto witnesses is indispensable for its validity (In re: Testate Estate of
mayor in its maximum period to prision correccional in its minimum Alberto, G. R. No. L-11948, April 29, 1959). As the document under
period, where the amount defrauded is over P200.00 but does not consideration does not comply with this requirement, it is obvious that
exceed P6,000.00. There being no modifying circumstances, the the same may not be probated.
penalty shall be imposed in its medium period. With the application of
the Indeterminate Sentence Law, Batulaon is entitled to an WHEREFORE, the decision appealed from is affirmed, with costs.
indeterminate penalty of three (3) months of arresto mayor, as
minimum, to one (1) year and eight (8) months of prision correccional, G.R. No. L-32213 November 26, 1973
as maximum.
AGAPITA N. CRUZ, petitioner, vs.
WHEREFORE, the Decision appealed from is AFFIRMED with the HON. JUDGE GUILLERMO P. VILLASOR, Presiding Judge of
following MODIFICATIONS: Branch I, Court of First Instance of Cebu, and MANUEL B.
LUGAY, respondents.
(1) In Criminal Case Nos. 3625, 3626 and 3453, Leonila Batulanon is
found GUILTY of three counts of falsification of private documents ESGUERRA, J.:
and is sentenced to suffer the penalty of six (6) months of arresto
mayor, as minimum, to four (4) years and two (2) months of prision Petition to review on certiorari the judgment of the Court First
correccional, as maximum, for each count, and to indemnify Instance of Cebu allowing the probate of the last will a testament of
complainant Polomolok Credit Cooperative Incorporated the amount the late Valente Z. Cruz. Petitioner-appellant Agapita N. Cruz, the
of P11,660.00 with interest at the rate of 6% per annum from surviving spouse of the said decease opposed the allowance of the will
November 28, 1994 until finality of this judgment. The interest rate of (Exhibit "E"), alleging the will was executed through fraud, deceit,
12% per annum shall be imposed from finality of this judgment until misrepresentation and undue influence; that the said instrument was
its satisfaction; and execute without the testator having been fully informed of the content
thereof, particularly as to what properties he was disposing and that the
(2) In Criminal Case No. 3627, Leonila Batulanon is found GUILTY supposed last will and testament was not executed in accordance with
of estafa and is sentenced to suffer the penalty of three (3) months law. Notwithstanding her objection, the Court allowed the probate of
of arresto mayor, as minimum, to one (1) year and eight (8) months the said last will and testament Hence this appeal by certiorari which
of prision correccional, as maximum. She is likewise ordered to was given due course.
indemnify Polomolok Credit Cooperative Incorporated the sum of
P5,000.00 with interest at the rate of 6% per annum from November The only question presented for determination, on which the decision
28, 1994 until finality of this judgment. The interest rate of 12% per of the case hinges, is whether the supposed last will and testament of
annum shall be imposed from finality of this judgment until its Valente Z. Cruz (Exhibit "E") was executed in accordance with law,
satisfaction. SO ORDERED. particularly Articles 805 and 806 of the new Civil Code, the first
requiring at least three credible witnesses to attest and subscribe to the
G.R. No. L-20357 November 25, 1967 will, and the second requiring the testator and the witnesses to
acknowledge the will before a notary public.
IN THE MATTER OF THE PETITION FOR THE
ALLOWANCE OF THE WILL OF GREGORIO Of the three instrumental witnesses thereto, namely Deogracias T.
GATCHALIAN, deceased. PEDRO REYES GARCIA, petitioner- Jamaloas Jr., Dr. Francisco Paares and Atty. Angel H. Teves, Jr., one
appellant, vs. of them, the last named, is at the same time the Notary Public before
FELIPE GATCHALIAN, AURORA G. CAMINS, ANGELES G. whom the will was supposed to have been acknowledged. Reduced to
COSCA, FEDERICO G. TUBOG, VIRGINIA G. TALANAY simpler terms, the question was attested and subscribed by at least
and ANGELES G. TALANAY, oppositors-appellees. three credible witnesses in the presence of the testator and of each
other, considering that the three attesting witnesses must appear before
DIZON, J.: the notary public to acknowledge the same. As the third witness is the
notary public himself, petitioner argues that the result is that only two
This is an appeal taken by Pedro Reyes Garcia from the decision of the witnesses appeared before the notary public to acknowledge the will.
Court of First Instance of Rizal in Special Proceedings No. 2623 On the other hand, private respondent-appellee, Manuel B. Lugay, who
denying the allowance of the will of the late Gregorio Gatchalian, on is the supposed executor of the will, following the reasoning of the trial
the ground that the attesting witnesses did not acknowledge it before a court, maintains that there is substantial compliance with the legal
notary public, as required by law. requirement of having at least three attesting witnesses even if the
notary public acted as one of them, bolstering up his stand with 57
On March 15, 1967, Gregorio Gatchalian, a widower of 71 years of American Jurisprudence, p. 227 which, insofar as pertinent, reads as
age, died in the municipality of Pasig, Province of Rizal, leaving no follows:
forced heirs. On April 2 of the same year, appellant filed a petition with It is said that there are, practical reasons for upholding a will
the above named court for the probate of said alleged will (Exhibit "C") as against the purely technical reason that one of the
wherein he was instituted as sole heir. Felipe Gatchalian, Aurora G. witnesses required by law signed as certifying to an
Camins, Angeles G. Cosca, Federico G. Tubog, Virginia G. Talanay acknowledgment of the testator's signature under oath rather
and Angeles G. Talanay, appellees herein, opposed the petition on the than as attesting the execution of the instrument.
ground, among others, that the will was procured by fraud; that the
deceased did not intend the instrument signed by him to be as his will; After weighing the merits of the conflicting claims of the parties, We
and that the deceased was physically and mentally incapable of making are inclined to sustain that of the appellant that the last will and
a will at the time of the alleged execution of said will. testament in question was not executed in accordance with law. The
notary public before whom the will was acknowledged cannot be
After due trial, the court rendered the appealed decision finding the considered as the third instrumental witness since he cannot
document Exhibit "C" to be the authentic last will of the deceased but acknowledge before himself his having signed the will. To
disallowing it for failure to comply with the mandatory requirement of acknowledge before means to avow (Javellana v. Ledesma, 97 Phil.
Article 806 of the New Civil Code that the will must be 258, 262; Castro v. Castro, 100 Phil. 239, 247); to own as genuine, to
acknowledged before a notary public by the testator and the witnesses. assent, to admit; and "before" means in front or preceding in space or
ahead of. (The New Webster Encyclopedic Dictionary of the English
An examination of the document (Exhibit "C") shows that the same Language, p. 72; Funk & Wagnalls New Standard Dictionary of the
was acknowledged before a notary public by the testator but not by the English Language, p. 252; Webster's New International Dictionary 2d.
instrumental witnesses. p. 245.) Consequently, if the third witness were the notary public
himself, he would have to avow assent, or admit his having signed the
Article 806 of the New Civil Code reads as follows: will in front of himself. This cannot be done because he cannot split
Every will must be acknowledged before a notary public by his personality into two so that one will appear before the other to
the testator and the witnesses. The notary public shall not be acknowledge his participation in the making of the will. To permit such
required to retain a copy of the will, or file another with the a situation to obtain would be sanctioning a sheer absurdity.
office of the Clerk of Court.
Furthermore, the function of a notary public is, among others, to guard
We have held heretofore that compliance with the requirement against any illegal or immoral arrangement Balinon v. De Leon, 50 0.
contained in the above legal provision to the effect that a will must be G. 583.) That function would defeated if the notary public were one of
acknowledged before a notary public by the testator and also by the the attesting instrumental witnesses. For them he would be interested
45
sustaining the validity of the will as it directly involves him and the Respondent Judge refused to reconsider the dismissal in spite of
validity of his own act. It would place him in inconsistent position and petitioner's manifestation that he had already attached the documentary
the very purpose of acknowledgment, which is to minimize fraud stamp to the original of the will. (See Mahilum vs. Court of Appeals,
(Report of Code Commission p. 106-107), would be thwarted. 64 O. G. 4017, 17 SCRA 482, 486.)

Admittedly, there are American precedents holding that notary public The case was brought to this Court by means of a petition for
may, in addition, act as a witness to the executive of the document he mandamus to compel the lower court to allow petitioner's appeal from
has notarized. (Mahilum v. Court Appeals, 64 0. G. 4017; 17 SCRA its decision. In this Court's resolution of January 21, 1980 the petition
482; Sawyer v. Cox, 43 Ill. 130). There are others holding that his for mandamus was treated in the interest of substantial and speedy
signing merely as notary in a will nonetheless makes him a witness justice as an appeal under Republic Act No. 5440 as well as a special
thereon (Ferguson v. Ferguson, 47 S. E. 2d. 346; In Re Douglas Will, civil action of certiorari under Rule 65 of the Rules of Court.
N. Y. S. 2d. 641; Ragsdal v. Hill, 269 S. W. 2d. 911, Tyson Utterback,
122 So. 496; In Re Baybee's Estate 160 N. 900; W. Merill v. Boal, 132 We hold that the lower court manifestly erred in declaring that, because
A. 721; See also Trenwith v. Smallwood, 15 So. 1030). But these no documentary stamp was affixed to the will, there was "no will and
authorities do not serve the purpose of the law in this jurisdiction or testament to probate" and, consequently, the alleged "action must of
are not decisive of the issue herein because the notaries public and necessity be dismissed".
witnesses referred to aforecited cases merely acted as instrumental,
subscribing attesting witnesses, and not as acknowledging witnesses. What the probate court should have done was to require the petitioner
He the notary public acted not only as attesting witness but also or proponent to affix the requisite thirty-centavo documentary stamp
acknowledging witness, a situation not envisaged by Article 805 of the to the notarial acknowledgment of the will which is the taxable portion
Civil Code which reads: of that document.
ART. 806. Every will must be acknowledged before a notary
public by the testator and the witnesses. The notary public That procedure may be implied from the provision of section 238 that
shall not be required to retain a copy of the will or file the non-admissibility of the document, which does not bear the
another with the office of the Clerk of Court. [Emphasis requisite documentary stamp, subsists only "until the requisite stamp
supplied] or stamps shall have been affixed thereto and cancelled."

To allow the notary public to act as third witness, or one the attesting Thus, it was held that the documentary stamp may be affixed at the
and acknowledging witnesses, would have the effect of having only time the taxable document is presented in evidence (Del Castillo vs.
two attesting witnesses to the will which would be in contravention of Madrilena 49 Phil. 749). If the promissory note does not bear a
the provisions of Article 80 be requiring at least three credible documentary stamp, the court should have allowed plaintiff's tender of
witnesses to act as such and of Article 806 which requires that the a stamp to supply the deficiency.
testator and the required number of witnesses must appear before the
notary public to acknowledge the will. The result would be, as has been WHEREFORE, the lower court's dismissal of the petition for probate
said, that only two witnesses appeared before the notary public for or is reversed and set aside. It is directed to decide the case on the merits
that purpose. In the circumstances, the law would not be duly in in the light of the parties' evidence. No costs. SO ORDERED.
observed.
[G.R. No. L-26615. April 30, 1970.]
FOR ALL THE FOREGOING, the judgment appealed from is hereby
reversed and the probate of the last will and testament of Valente Z. REV. FATHER LUCIO V. GARCIA, ANTONIO JESUS DE
Cruz (Exhibit "E") is declared not valid and hereby set aside. Cost PRAGA, MARIA NATIVIDAD DE JESUS AND DR. JAIME
against the appellee. ROSARIO, Petitioners, v. HON. CONRADO M. VASQUEZ, as
Judge of the Court of First Instance of Manila, Branch and
G.R. No. L-51546 January 28, 1980 CONSUELO GONZALES VDA. DE PRECILLA, Respondents.
JOSE ANTONIO GABUCAN, petitioner-appellant, vs.
HON. JUDGE LUIS D. MANTA JOSEFA G. VDA. DE [G.R. No. L-26884. April 30, 1970.]
YSALINA and NELDA G. ENCLONAR, respondents-appellees.
REV. FATHER LUCIO V. GARCIA, ANTONIO JESUS DE
AQUINO, J.: PRAGA, MARIA NATIVIDAD DE JESUS AND DR. JAIME
ROSARIO, Petitioners, v. HON. CONRADO M. VASQUEZ, as
This case is about the dismissal of a petition for the probate of a Judge of the Court of First Instance of Manila, Branch V,
notarial will on the ground that it does not bear a thirty-centavo REGISTER OF DEEDS OF MANILA, and CONSUELO
documentary stamp. GONZALES VDA. DE PRECILLA, Respondents.

The Court of First Instance of Camiguin in its "decision" of December [G.R. No. L-27200. April 30, 1970.]
28, 1977 in Special Proceeding No. 41 for the probate of the will of the
late Rogaciano Gabucan, dismissed the proceeding (erroneously TESTATE ESTATE OF GLICERIA A. DEL ROSARIO,
characterizes as an "action") deceased CONSUELO S. GONZALES VDA. DE PRECILLA,
petitioner administratrix, v. SEVERINA NARCISO, ROSA
The proceeding was dismissed because the requisite documentary NARCISO, JOSEFINA NARCISO, VICENTE MAURICIO,
stamp was not affixed to the notarial acknowledgment in the will and, DELFIN MAURICIO, REMEDIOS NARCISO,
hence, according to respondent Judge, it was not admissible in ENCARNACION, NARCISO, MARIA NARCISO, EDUARDO
evidence, citing section 238 of the Tax Code, now section 250 of the NARCISO, FR. LUCIO V. GARCIA, ANTONIO JESUS DE
1977 Tax Code, which reads: PRAGA, MARIA NATIVIDAD DE JESUS, DR. JAIME DEL
SEC. 238. Effect of failure to stamp taxable document. ROSARIO, ET AL., NATIVIDAD DEL ROSARIO-
An instrument, document, or paper which is required by law SARMIENTO and PASCUALA NARCISO-
to be stamped and which has been signed, issued, accepted, MANAHAN, Oppositors-Appellants.
or transferred without being duly stamped, shall not be
recorded, nor shall it or any copy thereof or any record of
transfer of the same be admitted or used in evidence in SYLLABUS
any court until the requisite stamp or stamps shall have been
affixed thereto and cancelled. 1. CIVIL LAW; SUCCESSION, WILLS; PROBATE OF WILLS;
GROUND FOR DISALLOWANCE; TESTATRIXS DEFECTIVE
No notary public or other officer authorized to administer EYESIGHT AS UNABLING HER TO READ THE PROVISIONS
oaths shall add his jurat or acknowledgment to any document OF LATER WILL. The declarations in court of the opthalmologist
subject to documentary stamp tax unless the proper as to the condition of the testatrixs eyesight fully establish the fact that
documentary stamps are affixed thereto and cancelled. 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
The probate court assumed that the notarial acknowledgment of the will on December 29, 1960, incapable of reading and could not have
said will is subject to the thirty-centavo documentary stamp tax fixed read the provisions of the will supposedly signed by her.
in section 225 of the Tax Code, now section 237 of the 1977 Tax Code.
2. ID.; ID.; ID.; ID.; ID.; IRREGULARITIES IN THE EXECUTION
OF THE WILL; CASE AT BAR. Upon its face, the testamentary
46
provisions, the attestation clause and acknowledgment were crammed sister. At the time of her death, she was said to be 90 years old more
together into a single sheet of paper, apparently to save on space. or less, and possessed of an estate consisting mostly of real properties.
Plainly, the testament was not prepared with any regard for the
defective vision of Da. Gliceria, the typographical errors remained On 17 September 1965, Consuelo S. Gonzales Vda. de Precilla, a niece
uncorrected thereby indicating that the execution thereof must have of the deceased, petitioned the Court of First Instance of Manila for
been characterized by haste. It is difficult to understand that so probate of the alleged last will and testament of Gliceria A. del
important a document containing the final disposition of ones worldly Rosario, executed on 29 December 1960, and for her appointment as
possessions should be embodied in an informal and untidy written special administratrix of the latters estate, said to be valued at about
instrument; or that the glaring spelling errors should have escaped her P100,000.00, pending the appointment of a regular administrator
notice if she had actually retained the ability to read the purported will thereof.
and had done so.
The petition was opposed separately by several groups of alleged heirs:
3. ID.; ID.; ID.; EXECUTION OF WILLS; REQUISITES FOR (1) Rev. Fr. Lucio V. Garcia, a legatee named in an earlier will
VALIDITY; ART. 808, NEW CIVIL CODE READING OF THE executed by Gliceria A. del Rosario on 9 June 1956; (2) Jaime Rosario
WILL TWICE TO A BLIND TESTATOR; PURPOSE. The and children, relatives and legatees in both the 1956 and 1960 wills;
rationale behind the requirement of reading the will to the testator if he Antonio Jesus de Praga and Marta Natividad de Jesus, wards of the
is blind or incapable of reading the will himself is to make the deceased and legatees in the 1956 and 1960 wills; (3) Remedios,
provisions thereof known to him, so that he may be able to object if Encarnacion, and Eduardo, all surnamed Narciso; (4) Natividad del
they are not in accordance with his wishes. Rosario-Sarmiento; (5) Maria Narciso; (6) Pascuala Narciso de
Manahan; (7) Severina, Rosa and Josefa, surnamed Narciso, and
4. ID.; ID.; ID.; ID.; ID.; ID.; NOT COMPLIED WITH IN INSTANT Vicente and Delfin, surnamed Mauricio, the latter five groups of
CASE. Where as in the 1960 will there is nothing in the record to persons all claiming to be relatives of Doa Gliceria within the fifth
show that the requisites of Art. 808 of the Civil Code of the Philippines civil degree. The oppositions invariably charged that the instrument
that "if the testator is blind, the will shall be read to him twice," have executed in 1960 was not intended by the deceased to be her true will;
not been complied with, the said 1960 will suffer from infirmity that that the signatures of the deceased appearing in the will was procured
affects its due execution. through undue and improper pressure and influence the part of the
beneficiaries and/or other persons; that the testatrix did not know the
5. REMEDIAL LAW; SETTLEMENT OF ESTATE OF DECEASED object of her bounty; that the instrument itself reveals irregularities in
PERSONS; ADMINISTRATORS; GROUNDS FOR REMOVAL; its execution, and that the formalities required by law for such
ACQUISITION OF INTEREST ADVERSE TO THAT OF THE execution have not been complied with.
ESTATE MAKES THE ADMINISTRATOR UNSUITABLE TO
DISCHARGE THE TRUST; CASE AT BAR. Considering that the Oppositor Lucio V. Garcia, who also presented for probate the 1956
alleged deed of sale was executed when Gliceria del Rosario was will of the deceased, joined the group of Dr. Jaime Rosario in
already practically blind and that the consideration given seems registering opposition to the appointment of petitioner Consuelo S.
unconscionably small for the properties, there was likelihood that a Gonzales Vda. de Precilla as special administratrix, on the ground that
case for annulment might be filed against the estate or heirs of Alfonso the latter possesses interest adverse to the estate. After the parties were
Precilla. And the administratrix being the widow and heir of the duly heard, the probate court, in its order of 2 October 1965, granted
alleged transferee, cannot be expected to sue herself in an action to petitioners prayer and appointed her special administratrix of the
recover property that may turn out to belong to the estate. This, plus estate upon a bond for P30,000.00. The order was premised on the fact
her conduct in securing new copies of the owners duplicate of titles the petitioner was managing the properties belonging to the estate even
without the courts knowledge and authority and having the contract during the lifetime of the deceased, and to appoint another person as
bind the land through issuance of new titles in her husbands name, administrator or co administrator at that stage of the proceeding would
cannot but expose her to the charge of unfitness or unsuitability to only result in further confusion and difficulties.
discharge the trust, justifying her removal from the administration of
the estate. On 30 September 1965, oppositors Jaime Rosario, Et. Al. filed with
the probate court an urgent motion to require the Hongkong &
6. REMEDIAL LAW; NOTICE OF LIS PENDENS; ACTION MUST Shanghai Bank to report all withdrawals made against the funds of the
AFFECT "THE TITLE OR THE RIGHT OF POSSESSION OF REAL deceased after 2 September 1965. The court denied this motion on 22
PROPERTY." On the matter of lis pendens, the provisions of the October 1965 for being premature, it being unaware that such deposit
Rules of Court are clear: notice of the pendency of an action may be in the name of the deceased existed.
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 On 14 December 1965, the same sets of oppositors, Dr. Jaime Rosario
possession of (such) real property." and children, Antonio Jesus de Praga, Natividad de Jesus and Fr. Lucio
V. Garcia, petitioned the court for the immediate removal of the special
7. ID.; ID.; ID.; NOT APPLICABLE TO INSTANT CASE. The administratrix. It was their claim that the special administratrix and her
issue in controversy here is simply the fitness or unfitness of said deceased husband, Alfonso Precilla, 2 had caused Gliceria A. del
special administratrix to continue holding the trust, it does not involve Rosario to execute a simulated and fraudulent deed of absolute sale
or affect at all the title to, or possession of, the properties covered by dated 10 January 1961 allegedly conveying unto said spouses for the
TCT Nos. 81735, 81736 and 81737. Clearly, the pendency of such case paltry sum of P30,000.00 ownership of 3 parcels of land and the
(L-26615) is not an action that can properly be annotated in the record improvements thereon located on Quiapo and San Nicolas, Manila,
of the titles to the properties. 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
DECISION 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
REYES, J.B.L., J.: aforementioned parcels of land be filed against the special
administratrix, as wife and heir of Alfonso Precilla, the removal of the
G.R. No. L-27200 is an appeal from the order of the Court of First said administratrix was imperative.
Instance of Manila (in Sp. Proc. No. 62618) admitting to probate the
alleged last will an, testament of the late Gliceria Avelino del Rosario On 17 December 1965, the same oppositors prayed the court for an
dated 29 December 1960. G.R. Nos. L-26615 and L-2684 are separate order directing the Special Administratrix to deposit with the Clerk of
petitions for mandamus filed by certain alleged heirs of said decedent Court all certificates of title belonging to the estate. It was alleged that
seeking (1) to compel the probate court to remove Consuelo S. on 22 October 1965, or after her appointment, petitioner Consuelo
Gonzales-Precilla as special administratrix of the estate, for conflict of Gonzales Vda. de Precilla, in her capacity as special administratrix of
interest, to appoint a new one in her stead; and (2) to order the Register the estate of the deceased Gliceria A. del Rosario, filed with Branch
of Deeds of Manila to annotate notice of lis pendens in TCT Nos. IV of the Court of First Instance of Manila a motion for the issuance
81735, 81736 ,and 81737, registered in the name of Alfonso Precilla, of new copies of the owners duplicates of certain certificates of title
married to Consuelo Gonzales y Narciso, and said to be properly in the name of Gliceria del Rosario, supposedly needed by her "in the
belonging to the estate of the deceased Gliceria A. del Rosario. preparation of the inventory" of the properties constituting the estate.
The motion having been granted, new copies of the owners duplicates
Insofar as pertinent to the issues involved herein, the facts of these of certificates appearing the name of Gliceria del Rosario (among
cases may be stated as follows:chanrob1es virtual 1aw library which were TCT Nos. 66201, 66202 and 66204) were issued on 15
Gliceria Avelino del Rosario died unmarried in the City of Manila on November 1965. On 8 December 1965, according to the oppositors,
2 September 1965, leaving no descendents, ascendants, brother or the same special administratrix presented to the Register of Deeds the

47
deed of sale involving properties covered by TCT Nos. 66201, 66202 Francisco Lopez and acknowledged before notary public Remigio M.
and 66204 supposedly executed by Gliceria del Rosario on 10 January Tividad.
1961 in favor of Alfonso Precilla, and, in consequence, said certificates
of title were cancelled and new certificates (Nos. 81735, 81736 and Called to testify on the due execution of the 1960 will, instrumental
81737) were issued in the name of Alfonso Precilla, married to witnesses Decena, Lopez and Rosales uniformly declared that they
Consuelo S. Gonzales y Narciso. were individually requested by Alfonso Precilla (the late husband of
petitioner special administratrix) to witness the execution of the last
On 25 August 1966, the Court issued an order admitting to probate the will of Doa Gliceria A. del Rosario; that they arrived at the house of
1960 will of Gliceria A. del Rosario (Exhibit "D"). In declaring the due the old lady at No. 2074 Azcarraga, Manila, one after the other, in the
execution of the will, the probate court took note that no evidence had afternoon of 29 December 1960; that the testatrix at the time was
been presented to establish that the testatrix was not of sound mind apparently of clear and sound mind, although she was being aided by
when the will was executed; that the fact that she had prepared an Precilla when she walked; 3 that the will, which was already prepared,
earlier will did not, prevent her from executing another one thereafter; was first read "silently" by the testatrix herself before she signed it; 4
that the fact that the 1956 will consisted of 12 pages whereas the 1960 that he three witnesses thereafter signed the will in the presence of the
testament was contained in one page does not render the latter invalid; testatrix and the notary public and of one another. There is also
that, the erasures and alterations in the instrument were insignificant to testimony that after the testatrix and the witnesses to the will
warrant rejection; that the inconsistencies in the testimonies of the acknowledged the instrument to be their voluntary act and deed, the
instrumental witnesses which were noted by the oppositors are even notary public asked for their respective residence certificates which
indicative of their truthfulness. The probate court, also considering that were handed to him by Alfonso Precilla, clipped together; 5 that after
petitioner had already shown capacity to administer the properties of comparing them with the numbers already written on the will, the
the estate and that from the provisions of the will she stands as the notary public filled in the blanks in the instrument with the date, 29
person most concerned and interested therein, appointed said petitioner January 1960, before he affixed his signature and seal thereto. 6 They
regular administratrix with a bond for P50,000.00. From this order all also testified that on that occasion no pressure or influence has been
the oppositors appealed, the case being docketed in this Court as G.R. exerted by any person upon the testatrix to execute the will.
No. L-27200.
Of course, the interest and active participation of Alfonso Precilla in
Then, on 13 September 1966, the probate court resolved the the signing of this 1960 will are evident from the records. The will
oppositors motion of 14 December 1965 for the removal of the then appeared to have been prepared by one who is not conversant with the
special administratrix, as follows: spelling of Tagalog words, and it has been shown that Alfonso Precilla
is a Cebuano who speaks Tagalog with a Visayan accent. 7 The
"It would seem that the main purpose of the motion to remove the witnesses to the will, two of whom are fellow Visayans, 8 admitted
special administratrix and to appoint another one in her stead, is in their relationship or closeness to Precilla. 9 It was Precilla who
order that an action may be filed against the special administratrix for instructed them to go to the house of Gliceria del Rosario on 29
the annulment of the deed of sale executed by the decedent on January December 1960 to witness an important document, 10 and who took
10, 1961. Under existing documents, the properties sold pursuant to their residence certificates from them a few days before the will was
the said deed of absolute sale no longer forms part of the estate. The signed. 11 Precilla had met the notary public and witnesses Rosales
alleged conflict of interest is accordingly not between different and Lopez at the door of the residence of the old woman; he ushered
claimants of the same estate. If it is desired by the movants that an them to the room at the second floor where the signing of the document
action be filed by them to annul the aforesaid deed absolute sale, it is took place; 12 then he fetched witness Decena from the latters
not necessary that the special administratrix be removed and that haberdashery shop a few doors away and brought him to, the house the
another one be appointed to file such action. Such a course of action testatrix. 13 And when the will was actually executed Precilla was
would only produce confusion and difficulties in the settlement of the present.
estate. The movants may file the aforesaid proceedings, preferably in
an independent action, to secure the nullity of the deed of absolute even The oppositors-appellants in the present case, however, challenging
without leave of this court:" the correctness of the probate courts ruling, maintain that on 29
December 1960 the eyesight of Gliceria del Rosario was so poor and
As regard the motion of 17 December 1965 asking for the deposit in defective that she could not have read the provisions of the will,
court of the titles in the name of the decedent, the same was also contrary to the testimonies of witnesses Decena, Lopez and Rosales.
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 On this point, we find the declarations in court of Dr. Jesus V. Tamesis
copies thereof that were issued at the instance of the special very material and illuminating. Said ophthalmologist, whose expertise
administratrix, there would be no necessity therefor, because they were was admitted by both parties, testified, among other things, that when
already cancelled and other certificates were issued in the name of Doa Gliceria del Rosario saw him for consultation on 11 March 1960
Alfonso Precilla. This order precipitated the oppositors filing in this he found her left eye to have cataract (opaque lens), 15 and that it was
Court of a petition for mandamus (G.R. No. L-26615, Rev. Fr. Lucio "above normal in pressure", denoting a possible glaucoma, a disease
V. Garcia, Et. Al. v. Hon. Judge Conrado M. Vasquez, Et. Al.), which that leads to blindness 16 As to the conditions of her right eye, Dr.
was given due course on 6 October 1966. Tamesis declared:jgc:chanrobles.com.ph

On 15 December 1965, with that motion for removal pending in the "Q But is there anything here in the entry appearing in the other
court, the oppositors requested the Register of Deeds of Manila to documents Exhibits 3-B, 3-C and 3-D from which you could inform
annotate a notice of lis pendens in the records of TCT Nos. 81735, the court as to the condition of the vision of the patient as to the right
81736, and 81737 in the name of Alfonso Precilla. And when said eve?
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 "A Under date of August 30, 1960, is the record of refraction. that is
lis pendens notice in the aforementioned titles contending that the setting of glass by myself which showed that the right eye with my
matter of removal and appointment of the administratrix, involving prescription of glasses had a vision of 2 over 60 (20/60) and for the left
TCT Nos. 81735, 81736, and 81737, was already before the Supreme eye with her correction 20 over 300 (20/300).
Court. Upon denial of this motion on 12 November 1966, oppositors
filed another mandamus action, this time against the probate court and "Q In laymans language, Doctor, what is the significance of that
the Register of Deeds. The case was docketed and given due course in notation that the right had a degree of 20 over 60 (20/60)?
this Court as G.R. No. L-26864.
"A It meant that eye at least would be able to recognize objects or
Foremost of the questions to be determined here concerns the persons at a minimum distance of twenty feet.
correctness of the order allowing the probate of the 1960 will.
"Q But would that grade enable the patient to read print?
The records of the probate proceeding fully establish the fact that the
testatrix, Gliceria A. del Rosario, during her lifetime, executed two "A Apparently that is only a record for distance vision, for distance
wills: one on 9 June 1956 consisting of 12 pages and written in sight, not for near."
Spanish, a language that she knew and spoke, witnessed by Messrs.
Antonio Cabrera, Jesus Y. Ayala and Valentin Marquez, and The records also show that although Dr. Tamesis operated of the left
acknowledged before notary public Jose Ayala; and another dated 29 eye of the decedent at the Lourdes Hospital on 8 August 1960; as of 23
December 1960, consisting of 1 page and written in Tagalog, August 1960, inspite of the glasses her vision was only "counting
witnessed by Messrs. Vicente Rosales, Francisco Decena, and

48
fingers," 17 at five feet. The cross-examination of the doctor further
elicited the following responses: 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
"Q After she was discharged from the hospital you prescribed lenses execution of the testament Exhibit "D", as appears from the
for her, or glasses? 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
"A After her discharge from the hospital, she was coming to my clinic vision at close range. It must be remembered that with the natural
for further examination and then sometime later glasses were lenses removed, her eyes had lost the power of adjustment to near
prescribed. vision, the substituted glass lenses being rigid and uncontrollable by
x x x her. Neither is the signing of checks (Exhibits "G" to "G-3") by her
indicative of ability to see at normal reading distances. Writing or
"Q And the glasses prescribed by you enabled her to read, Doctor? signing of ones name, when sufficiently practiced, becomes
automatic, so that one need only to have a rough indication of the place
"A As far as my record is concerned, with the glasses for the left eye where the signature is to be affixed in order to be able to write it.
which I prescribed the eye which I operated she could see only Indeed, a close examination of the checks, amplified in the photograph,
forms but not read. That is on the left eye. Exhibit "O", et seq., reinforces the contention of oppositors that the
alleged testatrix could not see at normal reading distance: the
"Q How about the right eye? 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
"A The same, although the vision on the right eye is even better than appear to be in the handwriting of the alleged testatrix, being in a much
the left eye." (pages 34. 85. t.s.n., hearing of 23 March 1966). firmer and more fluid hand than hers.

Then, confronted with a medical certificate (Exhibit H) issued by him Thus, for all intents and purpose of the rules on probate, the deceased
on 29 November 1965 certifying that Gliceria del Rosario was Gliceria del Rosario was, as appellant oppositors contend, not unlike a
provided with aphakic lenses and "had been under medical supervision blind testator, and the due execution of her will would have required
up to 1963 with apparently good vision", the doctor had this to observance of the provisions of Article 808 of the Civil Code.
say:jgc:chanrobles.com.ph
"ART. 808. If the testator is blind, the will shall be read to him twice;
"Q When yon said that she had apparently good vision you mean that once, by one of the subscribing witnesses, and again, by the notary
she was able to read? public before whom the will is acknowledged."cralaw virtua1aw
library
"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 The rationale behind the requirement of reading the will to the testator
I recall she was using her glasses although I recall also that we have to if he is blind or incapable of reading the will himself (as when he is
give her medicines to improve her vision, some medicines to improve illiterate), 18 is to make the provisions thereof known to him, so that
her identification some more. he may be able to object if they are not in accordance with his wishes.
x x x 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,
"Q What about the vision in the right eve, was that corrected by the thus making them truly reflective of his desire, is evidenced by the
glasses? 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
"A Yes, with the new prescription which I issued on 80 August 1960. within the range of his (the testators) other senses
It is in the clinical record.
In connection with the will here in question, there is nothing in the
"Q The vision in the right eye was corrected? records to show that the above requisites have been complied with.
Clearly, as already stated, the 1960 will sought to be probated suffers
"A Yes That is the vision for distant objects."cralaw virtua1aw library from infirmity that affects its due execution.
The foregoing testimony of the ophthalmologist who treated the
deceased and, therefore, has first hand knowledge of the actual We also find merit in the complaint of oppositors Lucio V. Garcia, Et
condition of her eyesight from August, 1960 up to 1963, fully establish Al., against the denial by the probate court of their petition for the
the fact that notwithstanding the operation and removal of the cataract removal of Consuelo Gonzales Vda. de Precilla as special
in her left eye and her being fitted with aphakic lens (used by cataract administratrix of the estate of the deceased Doa Gliceria (Petition,
patients), her vision remained mainly for viewing distant objects and G.R. No. L-26615, Annex "B").
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 The oppositors petition was based allegedly on the existence in the
it had improved by 29 December 1960, Gliceria del Rosario was special administratrix of an interest adverse to that of the estate. It was
incapable f reading, and could not have read the provisions of the will their contention that through fraud her husband had caused the
supposedly signed by her on 29 December 1960. It is worth noting that deceased Gliceria del Rosario to execute a deed of sale, dated 10
the instrumental witnesses stated that she read the instrument "silently" January 1961, by virtue of which the latter purportedly conveyed unto
(t.s.n., pages 164-165). Which is a conclusion and not a fact. said Alfonso D. Precilla, married to Consuelo Gonzales y Narciso, the
ownership of 3 parcels of land and the improvements thereon, assessed
Against the background of defective eyesight of the alleged testatrix, at P334,050.00, for the sum of P30,000.00.
the appearance of the will, Exhibit "D", acquires striking significance.
Upon its face, the testamentary provisions, the attestation clause and In denying the petition, the probate court, in its order of 13 September
acknowledgment were crammed together into a single sheet of paper, 1966 (Annex "P", Petition) reasoned out that since the properties were
to much so that the words had to be written very close on the top, already sold no longer form part of the estate. The conflict of interest
bottom and two sides of the paper, leaving no margin whatsoever; the would not be between the estate and third parties, but among the
word "and" had to be written by the symbol" &", apparently to save on different claimants of said properties, in which case, according to the
space. Plainly, the testament was not prepared with any regard for the court, the participation of the special administratrix in the action for
defective vision of Doa Gliceria. Further, typographical errors like annulment that may be brought would not be necessary.
"HULINH" for "HULING" (last), "Alfonsa" ;or "Alfonso",
"MERCRDRS" for MERCEDES", "instrumental" for "Instrumental", The error in this line of reasoning lies in the fact that what was being
and "acknowledged" for "acknowledge, remained uncorrected, questioned was precisely the validity of the conveyance or sale of the
thereby indicating that execution thereof must have been characterized properties. In short, if proper, the action for annulment would have to
by haste. It is difficult to understand that so important a document be undertaken on behalf of the estate by the special administratrix,
containing the final disposition of ones worldly possessions should be affecting as it does the property or rights of the deceased. 20 For the
embodied in an informal and untidily written instrument; or that the rule is that only where there is no special proceeding for the settlement
glaring spelling errors should have escaped her notice if she had of the estate of the deceased may the legal heirs commence an action
actually retained the ability to read the purported will and had done so. arising out of a right belonging to their ancestor.
The record is thus convincing that the supposed testatrix could not have
physically read or understood the alleged testament, Exhibit "D", and There is no doubt that to settle the question of the due execution and
that its admission to probate was erroneous and should be reversed. 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

49
probate court. 22 Considering the facts then before it, i.e., the alleged Before us is an appeal from the Decision dated 11 April 1986 1 of the
deed of sale having been executed by Gliceria del Rosario on 10 First Civil Cases Division of the then Intermediate Appellate Court,
January 1961, when she was already practically blind; and that the now Court of Appeals, which affirmed the Order dated 27 June
consideration of P30,000.00 seems to be unconscionably small for 1983 2 of the Regional Trial Court of Sta. Cruz, Laguna, admitting to
properties with a total assessed value of P334,050.00, there was probate the last will and testament 3 with codicil 4 of the late Brigido
likelihood that a case for annulment might indeed be filed against the Alvarado.
estate or heirs of Alfonso Precilla. And the administratrix, being the
widow and heir of the alleged transferee, cannot be expected to sue On 5 November 1977, the 79-year old Brigido Alvarado executed a
herself in an action to recover property that may turn out to belong to notarial will entitled "Huling Habilin" wherein he disinherited an
the estate. 22 Not only this, but the conduct of the special illegitimate son (petitioner) and expressly revoked a previously
administratrix in securing new copies of the owners duplicates of TCT executed holographic will at the time awaiting probate before Branch
Nos. 66201, 66202, and 66204, without the courts knowledge or 4 of the Regional Trial Court of sta. Cruz, Laguna.
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 As testified to by the three instrumental witnesses, the notary public
that the properties covered therein were already "conveyed" to her and by private respondent who were present at the execution, the
husband by the deceased, being the latters successor, and having the testator did not read the final draft of the will himself. Instead, private
contract bind the land through issuance of new titles in her husbands respondent, as the lawyer who drafted the eight-paged document, read
name cannot but expose her to the charge of unfitness or unsuitableness the same aloud in the presence of the testator, the three instrumental
to discharge the trust, justifying her removal from the administration witnesses and the notary public. The latter four followed the reading
of the estate. with their own respective copies previously furnished them.

With respect to the orders of the court a quo denying (1) the oppositors Meanwhile, Brigido's holographic will was subsequently admitted to
motion to require the Hongkong and Shanghai Bank to report all probate on 9 December 1977. On the 29th day of the same month, a
withdrawals made against the funds of the deceased after 2 September codicil entitled "Kasulatan ng Pagbabago sa Ilang Pagpapasiya na
1965 and (2) the motion for annotation of a lis pendens notice on TCT Nasasaad sa Huling Habilin na may Petsa Nobiembre 5, 1977 ni
Nos. 81735, 81736 and 81737, the same are to be affirmed. Brigido Alvarado" was executed changing some dispositions in the
notarial will to generate cash for the testator's eye operation. Brigido
The probate court pointed out in its order of 22 October 1965 (Annex was then suffering from glaucoma. But the disinheritance and
"H") that it could not have taken action on the complaint against the revocatory clauses were unchanged. As in the case of the notarial will,
alleged withdrawals from the bank deposits of the deceased, because the testator did not personally read the final draft of the codicil. Instead,
as of that time the court had not yet been apprised that such deposits it was private respondent who read it aloud in his presence and in the
exist. Furthermore, as explained by the special administratrix in her presence of the three instrumental witnesses (same as those of the
pleading of 30 October 1965, the withdrawals referred to by the notarial will) and the notary public who followed the reading using
oppositors could be those covered by checks issued in the name of their own copies.
Gliceria del Rosario during her lifetime but cleared only after her
death. That explanation, which not only appears plausible but has not A petition for the probate of the notarial will and codicil was filed upon
been rebutted by the petitioners-oppositors, negates any charge of the testator's death on 3 January 1979 by private respondent as
grave abuse in connection with the issuance of the order here in executor with the Court of First Instance, now Regional Trial Court, of
question. Siniloan, Laguna. 5Petitioner, in turn, filed an Opposition on the
following grounds: that the will sought to be probated was not
On the matter of lis pendens (G.R. No. L-26864), the provisions of the executed and attested as required by law; that the testator was insane
Rules of Court are clear: notice of the pendency of an action may be or otherwise mentally incapacitated to make a will at the time of its
recorded in the office of the register of deeds of the province in which execution due to senility and old age; that the will was executed under
the property is situated, if the action affects "the title or the right of duress, or influence of fear and threats; that it was procured by undue
possession of (such) real property." 23 In the case at bar, the pending and improper pressure and influence on the part of the beneficiary who
action which oppositors seek to annotate in the records of TCT Nos. stands to get the lion's share of the testator's estate; and lastly, that the
81735, 81736, and 81737 is the mandamus proceeding filed in this signature of the testator was procured by fraud or trick.
Court (G.R. No. L-26615). As previously discussed in this opinion,
however, that case is concerned merely with the correctness of the When the oppositor (petitioner) failed to substantiate the grounds
denial by the probate court of the motion for the removal of Consuelo relied upon in the Opposition, a Probate Order was issued on 27 June
Gonzales Vda. de Precilla as special administratrix of the estate of the 1983 from which an appeal was made to respondent court. The main
late Gliceria del Rosario. In short, the issue in controversy there is thrust of the appeal was that the deceased was blind within the meaning
simply the fitness or unfitness of said special administratrix to continue of the law at the time his "Huling Habilin" and the codicil attached
holding the trust; it does not involve or affect at all the title to, or thereto was executed; that since the reading required by Art. 808 of the
possession of, the properties covered by said TCT Nos. 81735, 81736 Civil Code was admittedly not complied with, probate of the
and 81737. Clearly, the pendency of such case (L-26615) is not an deceased's last will and codicil should have been denied.
action that can properly be annotated in the record of the titles to the
properties. On 11 April 1986, the Court of Appeals rendered the decision under
review with the following findings: that Brigido Alvarado was not
FOR THE FOREGOING REASONS, the order of the court below blind at the time his last will and codicil were executed; that assuming
allowing to probate the alleged 1960 will of Gliceria A. del Rosario is his blindness, the reading requirement of Art. 808 was substantially
hereby reversed and set aside. The petition in G.R. No. L-26615 being complied with when both documents were read aloud to the testator
meritorious, the appealed order is set aside and the court below is with each of the three instrumental witnesses and the notary public
ordered to remove the administratrix, Consuelo Gonzales Vda. de following the reading with their respective copies of the instruments.
Precilla, and appoint one of the heirs intestate of the deceased Doa The appellate court then concluded that although Art. 808 was not
Gliceria Avelino del Rosario as special administrator for the purpose followed to the letter, there was substantial compliance since its
of instituting action on behalf of her estate to recover the properties purpose of making known to the testator the contents of the drafted
allegedly sold by her to the late Alfonso D. Precilla. And in Case G.R. will was served.
No. L-26864, petition is dismissed. No costs.
The issues now before us can be stated thus: Was Brigido Alvarado
G.R. No. 74695 September 14, 1993 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
In the Matter of the Probate of the Last Will and Testament of said article complied with?
the Deceased Brigido Alvarado, CESAR
ALVARADO, petitioner, vs. Regarding the first issue, there is no dispute on the following facts:
HON. RAMON G. GAVIOLA, JR., Presiding Justice, HON. MA. Brigido Alvarado was not totally blind at the time the will and codicil
ROSARIO QUETULIO LOSA and HON. LEONOR INES were executed. However, his vision on both eyes was only of "counting
LUCIANO, Associate Justices, Intermediate Appellate Court, fingers at three (3) feet" by reason of the glaucoma which he had been
First Division (Civil Cases), and BAYANI MA. suffering from for several years and even prior to his first consultation
RINO, respondents. with an eye specialist on 14 December 1977.

BELLOSILLO, J.: The point of dispute is whether the foregoing circumstances would
qualify Brigido as a "blind" testator under Art. 808 which reads:

50
Art. 808. If the testator is blind, the will shall be read to him In the case at bar, private respondent read the testator's will and codicil
twice; once, by one of the subscribing witnesses, and again, aloud in the presence of the testator, his three instrumental witnesses,
by the notary public before whom the will is acknowledged. and the notary public. Prior and subsequent thereto, the testator
affirmed, upon being asked, that the contents read corresponded with
Petitioner contends that although his father was not totally blind when his instructions. Only then did the signing and acknowledgement take
the will and codicil were executed, he can be so considered within the place. There is no evidence, and petitioner does not so allege, that the
scope of the term as it is used in Art. 808. To support his stand, contents of the will and codicil were not sufficiently made known and
petitioner presented before the trial court a medical certificate issued communicated to the testator. On the contrary, with respect to the
by Dr. Salvador R. Salceda, Director of the Institute of Opthalmology "Huling Habilin," the day of the execution was not the first time that
(Philippine Eye Research Institute), 6 the contents of which were Brigido had affirmed the truth and authenticity of the contents of the
interpreted in layman's terms by Dr. Ruperto Roasa, whose expertise draft. The uncontradicted testimony of Atty. Rino is that Brigido
was admitted by private respondent. 7 Dr. Roasa explained that Alvarado already acknowledged that the will was drafted in
although the testator could visualize fingers at three (3) feet, he could accordance with his expressed wishes even prior to 5 November 1977
no longer read either printed or handwritten matters as of 14 December when Atty. Rino went to the testator's residence precisely for the
1977, the day of his first consultation. 8 purpose of securing his conformity to the draft. 15

On the other hand, the Court of Appeals, contrary to the medical Moreover, it was not only Atty. Rino who read the documents on 5
testimony, held that the testator could still read on the day the will and November and 29 December 1977. The notary public and the three
the codicil were executed but chose not to do so because of "poor instrumental witnesses likewise read the will and codicil, albeit
eyesight." 9 Since the testator was still capable of reading at that time, silently. Afterwards, Atty. Nonia de la Pena (the notary public) and Dr.
the court a quo concluded that Art. 808 need not be complied with. Crescente O. Evidente (one of the three instrumental witnesses and the
testator's physician) asked the testator whether the contents of the
We agree with petitioner in this respect. document were of his own free will. Brigido answered in the
affirmative. 16 With four persons following the reading word for word
Regardless of respondent's staunch contention that the testator was still with their own copies, it can be safely concluded that the testator was
capable of reading at the time his will and codicil were prepared, the reasonably assured that what was read to him (those which he affirmed
fact remains and this was testified to by his witnesses, that Brigido did were in accordance with his instructions), were the terms actually
not do so because of his "poor," 10 "defective," 11 or "blurred" 12 vision appearing on the typewritten documents. This is especially true when
making it necessary for private respondent to do the actual reading for we consider the fact that the three instrumental witnesses were persons
him. known to the testator, one being his physician (Dr. Evidente) and
another (Potenciano C. Ranieses) being known to him since childhood.
The following pronouncement in Garcia vs. Vasquez 13 provides an
insight into the scope of the term "blindness" as used in Art. 808, to The spirit behind the law was served though the letter was not.
wit: Although there should be strict compliance with the substantial
The rationale behind the requirement of reading the will to requirements of the law in order to insure the authenticity of the will,
the testator if he is blind or incapable of reading the will the formal imperfections should be brushed aside when they do not
himself (as when he is illiterate), is to make the provisions affect its purpose and which, when taken into account, may only defeat
thereof known to him, so that he may be able to object if they the testator's will. 17
are not in accordance with his wishes . . .
As a final word to convince petitioner of the propriety of the trial
Clear from the foregoing is that Art. 808 applies not only to blind court's Probate Order and its affirmance by the Court of Appeals, we
testators but also to those who, for one reason or another, are quote the following pronouncement in Abangan v. Abangan, 18 to wit:
"incapable of reading the(ir) will(s)." Since Brigido Alvarado was The object of the solemnities surrounding the execution of
incapable of reading the final drafts of his will and codicil on the wills is to close the door against bad faith and fraud, to avoid
separate occasions of their execution due to his "poor," "defective," or the substitution of wills and testaments and to guaranty their
"blurred" vision, there can be no other course for us but to conclude truth and authenticity. Therefore the laws on the subject
that Brigido Alvarado comes within the scope of the term "blind" as it should be interpreted in such a way as to attain these
is used in Art. 808. Unless the contents were read to him, he had no primordial ends. But, on the other hand, also one must not
way of ascertaining whether or not the lawyer who drafted the will and lose sight of the fact that it is not the object of the law to
codicil did so confortably with his instructions. Hence, to consider his restrain and curtail the exercise of the right to make a
will as validly executed and entitled to probate, it is essential that we will. So when an interpretation already given assures such
ascertain whether Art. 808 had been complied with. ends, any other interpretation whatsoever, that adds nothing
but demands more requisites entirely unnecessary, useless
Article 808 requires that in case of testators like Brigido Alvarado, the and frustrative of the testator's will, must be
will shall be read twice; once, by one of the instrumental witnesses disregarded (emphasis supplied).
and, again, by the notary public before whom the will was
acknowledged. The purpose is to make known to the incapacitated Brigido Alvarado had expressed his last wishes in clear and
testator the contents of the document before signing and to give him unmistakable terms in his "Huling Habilin" and the codicil attached
an opportunity to object if anything is contrary to his instructions. thereto. We are unwilling to cast these aside fro the mere reason that a
legal requirement intended for his protection was not followed strictly
That Art. 808 was not followed strictly is beyond cavil. Instead of the when such compliance had been rendered unnecessary by the fact that
notary public and an instrumental witness, it was the lawyer (private the purpose of the law, i.e., to make known to the incapacitated testator
respondent) who drafted the eight-paged will and the five-paged the contents of the draft of his will, had already been accomplished. To
codicil who read the same aloud to the testator, and read them only reiterate, substantial compliance suffices where the purpose has been
once, not twice as Art. 808 requires. served.
Private respondent however insists that there was substantial
compliance and that the single reading suffices for purposes of the law. WHEREFORE, the petition is DENIED and the assailed Decision of
On the other hand, petitioner maintains that the only valid compliance respondent Court of Appeals dated 11 April 1986 is AFFIRMED.
or compliance to the letter and since it is admitted that neither the Considering the length of time that this case has remained pending,
notary public nor an instrumental witness read the contents of the will this decision is immediately executory. Costs against petitioner. SO
and codicil to Brigido, probate of the latter's will and codicil should ORDERED.
have been disallowed.
G.R. No. 106720 September 15, 1994
We sustain private respondent's stand and necessarily, the petition
must be denied. SPOUSES ROBERTO AND THELMA AJERO, petitioners, vs.
THE COURT OF APPEALS AND CLEMENTE
This Court has held in a number of occasions that substantial SAND, respondents.
compliance is acceptable where the purpose of the law has been
satisfied, the reason being that the solemnities surrounding the PUNO, J.:
execution of wills are intended to protect the testator from all kinds of
fraud and trickery but are never intended to be so rigid and inflexible This is an appeal by certiorari from the Decision of the Court
as to destroy the testamentary privilege. 14 of Appeals 1 in CA-G.R. CV No. 22840, dated March 30, 1992, the
dispositive portion of which reads;
51
PREMISES CONSIDERED, the questioned decision of likewise identified explicitly. And considering that she had
November 19, 1988 of the trial court is hereby REVERSED even written a nursing book which contained the law and
and SET ASIDE, and the petition for probate is hereby jurisprudence on will and succession, there is more than
DISMISSED. No costs. sufficient showing that she knows the character of the
testamentary act.
The earlier Decision was rendered by the RTC of Quezon City, Branch
94, 2 in Sp. Proc. No. Q-37171, and the instrument submitted for In this wise, the question of identity of the will, its due
probate is the holographic will of the late Annie Sand, who died on execution and the testamentary capacity of the testatrix has
November 25, 1982. to be resolved in favor of the allowance of probate of the will
submitted herein.
In the will, decedent named as devisees, the following: petitioners
Roberto and Thelma Ajero, private respondent Clemente Sand, Likewise, no evidence was presented to show sufficient
Meriam S. Arong, Leah Sand, Lilia Sand, Edgar Sand, Fe Sand, Lisa reason for the disallowance of herein holographic will.
S. Sand, and Dr. Jose Ajero, Sr., and their children. While it was alleged that the said will was procured by undue
and improper pressure and influence on the part of the
On January 20, 1983, petitioners instituted Sp. Proc. No. Q-37171, for beneficiary or of some other person, the evidence adduced
allowance of decedent's holographic will. They alleged that at the time have not shown any instance where improper pressure or
of its execution, she was of sound and disposing mind, not acting under influence was exerted on the testatrix. (Private respondent)
duress, fraud or undue influence, and was in every respect capacitated Clemente Sand has testified that the testatrix was still alert
to dispose of her estate by will. at the time of the execution of the will, i.e., at or around the
time of her birth anniversary celebration in 1981. It was also
Private respondent opposed the petition on the grounds that: neither established that she is a very intelligent person and has a
the testament's body nor the signature therein was in decedent's mind of her own. Her independence of character and to some
handwriting; it contained alterations and corrections which were not extent, her sense of superiority, which has been testified to
duly signed by decedent; and, the will was procured by petitioners in Court, all show the unlikelihood of her being unduly
through improper pressure and undue influence. The petition was influenced or improperly pressured to make the aforesaid
likewise opposed by Dr. Jose Ajero. He contested the disposition in will. It must be noted that the undue influence or improper
the will of a house and lot located in Cabadbaran, Agusan Del Norte. pressure in question herein only refer to the making of a will
He claimed that said property could not be conveyed by decedent in its and not as to the specific testamentary provisions therein
entirety, as she was not its sole owner. which is the proper subject of another proceeding. Hence,
under the circumstances, this Court cannot find convincing
Notwithstanding the oppositions, the trial court admitted the decedent's reason for the disallowance of the will herein.
holographic will to probate. It found, inter alia:
Considering then that the probate proceedings herein must Considering then that it is a well-established doctrine in the
decide only the question of identity of the will, its due law on succession that in case of doubt, testate succession
execution and the testamentary capacity of the testatrix, this should be preferred over intestate succession, and the fact
probate court finds no reason at all for the disallowance of that no convincing grounds were presented and proven for
the will for its failure to comply with the formalities the disallowance of the holographic will of the late Annie
prescribed by law nor for lack of testamentary capacity of Sand, the aforesaid will submitted herein must be admitted
the testatrix. to probate. 3 (Citations omitted.)

For one, no evidence was presented to show that the will in On appeal, said Decision was reversed, and the petition for probate of
question is different from the will actually executed by the decedent's will was dismissed. The Court of Appeals found that, "the
testatrix. The only objections raised by the oppositors . . . are holographic will fails to meet the requirements for its validity." 4 It
that the will was not written in the handwriting of the held that the decedent did not comply with Articles 813 and 814 of the
testatrix which properly refers to the question of its due New Civil Code, which read, as follows:
execution, and not to the question of identity of will. No Art. 813: When a number of dispositions appearing in a
other will was alleged to have been executed by the testatrix holographic will are signed without being dated, and the last
other than the will herein presented. Hence, in the light of disposition has a signature and date, such date validates the
the evidence adduced, the identity of the will presented for dispositions preceding it, whatever be the time of prior
probate must be accepted, i.e., the will submitted in Court dispositions.
must be deemed to be the will actually executed by the
testatrix. Art. 814: In case of insertion, cancellation, erasure or
xxx xxx xxx alteration in a holographic will, the testator must
authenticate the same by his full signature.
While the fact that it was entirely written, dated and signed
in the handwriting of the testatrix has been disputed, the It alluded to certain dispositions in the will which were either unsigned
petitioners, however, have satisfactorily shown in Court that and undated, or signed but not dated. It also found that the erasures,
the holographic will in question was indeed written entirely, alterations and cancellations made thereon had not been authenticated
dated and signed in the handwriting of the testatrix. Three by decedent.
(3) witnesses who have convincingly shown knowledge of
the handwriting of the testatrix have been presented and have Thus, this appeal which is impressed with merit.
explicitly and categorically identified the handwriting with
which the holographic will in question was written to be the Section 9, Rule 76 of the Rules of Court provides that will shall be
genuine handwriting and signature of the testatrix. Given disallowed in any of the following cases:
then the aforesaid evidence, the requirement of the law that (a) If not executed and attested as required by law;
the holographic will be entirely written, dated and signed in (b) If the testator was insane, or otherwise mentally
the handwriting of the testatrix has been complied with. incapable to make a will, at the time of its execution;
xxx xxx xxx (c) If it was executed under duress, or the influence of fear,
or threats;
As to the question of the testamentary capacity of the (d) If it was procured by undue and improper pressure and
testratix, (private respondent) Clemente Sand himself has influence, on the part of the beneficiary, or of some
testified in Court that the testatrix was completely in her other person for his benefit;
sound mind when he visited her during her birthday (e) If the signature of the testator was procured by fraud or
celebration in 1981, at or around which time the holographic trick, and he did not intend that the instrument should
will in question was executed by the testatrix. To be of sound be his will at the time of fixing his signature thereto.
mind, it is sufficient that the testatrix, at the time of making
the will, knew the value of the estate to be disposed of, the In the same vein, Article 839 of the New Civil Code reads:
proper object of her bounty, and the character of the Art. 839: The will shall be disallowed in any of the following
testamentary act . . . The will itself shows that the testatrix cases;
even had detailed knowledge of the nature of her estate. She (a) If the formalities required by law have not been
even identified the lot number and square meters of the lots complied with;
she had conveyed by will. The objects of her bounty were

52
(b) If the testator was insane, or otherwise mentally Thus, unless the unauthenticated alterations, cancellations or insertions
incapable of making a will, at the time of its were made on the date of the holographic will or on testator's
execution; signature, 9 their presence does not invalidate the will itself. 10 The
(c) If it was executed through force or under duress, lack of authentication will only result in disallowance of such changes.
or the influence of fear, or threats;
(d) If it was procured by undue and improper pressure It is also proper to note that the requirements of authentication of
and influence, on the part of the beneficiary or of changes and signing and dating of dispositions appear in provisions
some other person; (Articles 813 and 814) separate from that which provides for the
(e) If the signature of the testator was procured by necessary conditions for the validity of the holographic will (Article
fraud; 810). The distinction can be traced to Articles 678 and 688 of the
(f) If the testator acted by mistake or did not intend Spanish Civil Code, from which the present provisions covering
that the instrument he signed should be his will at holographic wills are taken. They read as follows:
the time of affixing his signature thereto. Art. 678: A will is called holographic when the testator
writes it himself in the form and with the requisites required
These lists are exclusive; no other grounds can serve to disallow a in Article 688.
will. 5 Thus, in a petition to admit a holographic will to probate, the
only issues to be resolved are: (1) whether the instrument submitted is, Art. 688: Holographic wills may be executed only by
indeed, the decedent's last will and testament; (2) whether said will was persons of full age.
executed in accordance with the formalities prescribed by law; (3)
whether the decedent had the necessary testamentary capacity at the In order that the will be valid it must be drawn on stamped
time the will was executed; and, (4) whether the execution of the will paper corresponding to the year of its execution, written in
and its signing were the voluntary acts of the decedent. 6 its entirety by the testator and signed by him, and must
contain a statement of the year, month and day of its
In the case at bench, respondent court held that the holographic will of execution.
Anne Sand was not executed in accordance with the formalities
prescribed by law. It held that Articles 813 and 814 of the New Civil If it should contain any erased, corrected, or interlined
Code, ante, were not complied with, hence, it disallowed the probate words, the testator must identify them over his signature.
of said will. This is erroneous.
Foreigners may execute holographic wills in their own
We reiterate what we held in Abangan vs. Abangan, 40 Phil. 476, 479 language.
(1919), that:
The object of the solemnities surrounding the execution of This separation and distinction adds support to the interpretation that
wills is to close the door against bad faith and fraud, to avoid only the requirements of Article 810 of the New Civil Code and not
substitution of wills and testaments and to guaranty their those found in Articles 813 and 814 of the same Code are essential
truth and authenticity. Therefore, the laws on this subject to the probate of a holographic will.
should be interpreted in such a way as to attain these
primordial ends. But, on the other hand, also one must not The Court of Appeals further held that decedent Annie Sand could not
lose sight of the fact that it is not the object of the law to validly dispose of the house and lot located in Cabadbaran, Agusan del
restrain and curtail the exercise of the right to make a will. Norte, in its entirety. This is correct and must be affirmed.
So when an interpretation already given assures such ends,
any other interpretation whatsoever, that adds nothing but As a general rule, courts in probate proceedings are limited to pass only
demands more requisites entirely unnecessary, useless and upon the extrinsic validity of the will sought to be probated. However,
frustrative of the testator's last will, must be disregarded. in exceptional instances, courts are not powerless to do what the
situation constrains them to do, and pass upon certain provisions of the
For purposes of probating non-holographic wills, these formal will. 11 In the case at bench, decedent herself indubitably stated in her
solemnities include the subscription, attestation, and acknowledgment holographic will that the Cabadbaran property is in the name of her
requirements under Articles 805 and 806 of the New Civil Code. late father, John H. Sand (which led oppositor Dr. Jose Ajero to
question her conveyance of the same in its entirety). Thus, as correctly
In the case of holographic wills, on the other hand, what assures held by respondent court, she cannot validly dispose of the whole
authenticity is the requirement that they be totally autographic or property, which she shares with her father's other heirs.
handwritten by the testator himself, 7 as provided under Article 810 of
the New Civil Code, thus: IN VIEW WHEREOF, the instant petition is GRANTED. The
A person may execute a holographic will which must be Decision of the Court of Appeals in CA-G.R. CV No. 22840, dated
entirely written, dated, and signed by the hand of the testator March 30, 1992, is REVERSED and SET ASIDE, except with respect
himself. It is subject to no other form, and may be made in to the invalidity of the disposition of the entire house and lot in
or out of the Philippines, and need not be witnessed. Cabadbaran, Agusan del Norte. The Decision of the Regional Trial
(Emphasis supplied.) Court of Quezon City, Branch 94 in Sp. Proc. No. Q-37171, dated
November 19, 1988, admitting to probate the holographic will of
Failure to strictly observe other formalities will not result in decedent Annie Sand, is hereby REINSTATED, with the above
the disallowance of a holographic will that is unquestionably qualification as regards the Cabadbaran property. No costs. SO
handwritten by the testator. ORDERED.

A reading of Article 813 of the New Civil Code shows that its G.R. No. L-40207 September 28, 1984
requirement affects the validity of the dispositions contained in the
holographic will, but not its probate. If the testator fails to sign and ROSA K. KALAW, petitioner, vs.
date some of the dispositions, the result is that these HON. JUDGE BENJAMIN RELOVA, Presiding Judge of the
dispositions cannot be effectuated. Such failure, however, does not CFI of Batangas, Branch VI, Lipa City, and GREGORIO K.
render the whole testament void. KALAW, respondents.
Likewise, a holographic will can still be admitted to probate, MELENCIO-HERRERA, J.:
notwithstanding non-compliance with the provisions of Article 814. In
the case of Kalaw vs. Relova 132 SCRA 237 242 (1984), this Court On September 1, 1971, private respondent GREGORIO K. KALAW,
held: claiming to be the sole heir of his deceased sister, Natividad K. Kalaw,
Ordinarily, when a number of erasures, corrections, and filed a petition before the Court of First Instance of Batangas, Branch
interlineations made by the testator in a holographic Will VI, Lipa City, for the probate of her holographic Will executed on
have not been noted under his signature, . . . the Will is not December 24, 1968.
thereby invalidated as a whole, but at most only as respects The holographic Will reads in full as follows:
the particular words erased, corrected or interlined. Manresa
gave an identical commentary when he said "la omission de My Last will and Testament
la salvedad no anula el testamento, segun la regla de In the name of God, Amen.
jurisprudencia establecida en la sentencia de 4 de Abril de I Natividad K. Kalaw Filipino 63years of age, single, and a resident of
1985." 8 (Citations omitted.) Lipa City, being of sound and disposing mind and memory, do hereby
declare thus to be my last will and testament.
53
1. It is my will that I'll be burried in the cemetery of the catholic church authenticate it in the manner required by law by affixing her full
of Lipa City. In accordance with the rights of said Church, and that my signature,
executrix hereinafter named provide and erect at the expose of my state
a suitable monument to perpetuate my memory. The ruling in Velasco, supra, must be held confined to such insertions,
xxx xxx xxx cancellations, erasures or alterations in a holographic Will, which
affect only the efficacy of the altered words themselves but not the
The holographic Will, as first written, named ROSA K. Kalaw, a sister essence and validity of the Will itself. As it is, with the erasures,
of the testatrix as her sole heir. Hence, on November 10, 1971, cancellations and alterations made by the testatrix herein, her real
petitioner ROSA K. Kalaw opposed probate alleging, in substance, that intention cannot be determined with certitude. As Manresa had stated
the holographic Will contained alterations, corrections, and insertions in his commentary on Article 688 of the Spanish Civil Code, whence
without the proper authentication by the full signature of the testatrix Article 814 of the new Civil Code was derived:
as required by Article 814 of the Civil Code reading: ... No infringe lo dispuesto en este articulo del Codigo (el
Art. 814. In case of any insertion, cancellation, erasure or 688) la sentencia que no declara la nulidad de un testamento
alteration in a holographic will the testator must authenticate olografo que contenga palabras tachadas, enmendadas o
the same by his full signature. entre renglones no salvadas por el testador bajo su firnia
segun previene el parrafo tercero del mismo, porque, en
ROSA's position was that the holographic Will, as first written, should realidad, tal omision solo puede afectar a la validez o
be given effect and probated so that she could be the sole heir eficacia de tales palabras, y nunca al testamento mismo, ya
thereunder. por estar esa disposicion en parrafo aparte de aquel que
determine las condiciones necesarias para la validez del
After trial, respondent Judge denied probate in an Order, dated testamento olografo, ya porque, de admitir lo contrario, se
September 3, 197 3, reading in part: Ilegaria al absurdo de que pequefias enmiendas no salvadas,
The document Exhibit "C" was submitted to the National que en nada afectasen a la parte esencial y respectiva del
Bureau of Investigation for examination. The NBI reported testamento, vinieran a anular este, y ya porque el precepto
that the handwriting, the signature, the insertions and/or contenido en dicho parrafo ha de entenderse en perfecta
additions and the initial were made by one and the same armonia y congruencia con el art. 26 de la ley del Notariado
person. Consequently, Exhibit "C" was the handwriting of que declara nulas las adiciones apostillas entrerrenglonados,
the decedent, Natividad K. Kalaw. The only question is raspaduras y tachados en las escrituras matrices, siempre que
whether the win, Exhibit 'C', should be admitted to probate no se salven en la forma prevenida, paro no el documento
although the alterations and/or insertions or additions above- que las contenga, y con mayor motivo cuando las palabras
mentioned were not authenticated by the full signature of the enmendadas, tachadas, o entrerrenglonadas no tengan
testatrix pursuant to Art. 814 of the Civil Code. The importancia ni susciten duda alguna acerca del pensamiento
petitioner contends that the oppositors are estopped to assert del testador, o constituyan meros accidentes de ortografia o
the provision of Art. 814 on the ground that they themselves de purez escrituraria, sin trascendencia alguna(l).
agreed thru their counsel to submit the Document to the NBI
FOR EXAMINATIONS. This is untenable. The parties did Mas para que sea aplicable la doctrina de excepcion
not agree, nor was it impliedly understood, that the contenida en este ultimo fallo, es preciso que las tachaduras,
oppositors would be in estoppel. enmiendas o entrerrenglonados sin salvar saan de pala bras
que no afecter4 alteren ni uarien de modo substancial la
The Court finds, therefore, that the provision of Article 814 express voluntad del testador manifiesta en el documento.
of the Civil Code is applicable to Exhibit "C". Finding the Asi lo advierte la sentencia de 29 de Noviembre de 1916,
insertions, alterations and/or additions in Exhibit "C" not to que declara nulo un testamento olografo por no estar salvada
be authenticated by the full signature of the testatrix por el testador la enmienda del guarismo ultimo del ao en
Natividad K. Kalaw, the Court will deny the admission to que fue extendido 3(Emphasis ours).
probate of Exhibit "C".
WHEREFORE, this Petition is hereby dismissed and the Decision of
WHEREFORE, the petition to probate Exhibit "C" as the respondent Judge, dated September 3, 1973, ishereby affirmed in toto.
holographic will of Natividad K. Kalaw is hereby denied. No costs. SO ORDERED.
SO ORDERED.
G.R. No. L-58509 December 7, 1982
From that Order, GREGORIO moved for reconsideration arguing that
since the alterations and/or insertions were the testatrix, the denial to IN THE MATTER OF THE PETITION TO APPROVE THE
probate of her holographic Will would be contrary to her right of WILL OF RICARDO B. BONILLA deceased, MARCELA
testamentary disposition. Reconsideration was denied in an Order, RODELAS, petitioner-appellant, vs.
dated November 2, 1973, on the ground that "Article 814 of the Civil AMPARO ARANZA, ET AL., oppositors-appellees, ATTY.
Code being , clear and explicit, (it) requires no necessity for LORENZO SUMULONG, intervenor.
interpretation."
RELOVA, J.:
From that Order, dated September 3, 1973, denying probate, and the
Order dated November 2, 1973 denying reconsideration, ROSA filed This case was certified to this Tribunal by the Court of Appeals for
this Petition for Review on certiorari on the sole legal question of final determination pursuant to Section 3, Rule 50 of the Rules of
whether or not the original unaltered text after subsequent alterations Court.
and insertions were voided by the Trial Court for lack of authentication
by the full signature of the testatrix, should be probated or not, with As found by the Court of Appeals:
her as sole heir. ... On January 11, 1977, appellant filed a petition with the
Court of First Instance of Rizal for the probate of the
Ordinarily, when a number of erasures, corrections, and interlineations holographic will of Ricardo B. Bonilla and the issuance of
made by the testator in a holographic Will litem not been noted under letters testamentary in her favor. The petition, docketed as
his signature, ... the Will is not thereby invalidated as a whole, but at Sp. Proc. No. 8432, was opposed by the appellees Amparo
most only as respects the particular words erased, corrected or Aranza Bonilla, Wilferine Bonilla Treyes Expedita Bonilla
interlined.1 Manresa gave an Identical commentary when he said "la Frias and Ephraim Bonilla on the following grounds:
omision de la salvedad no anula el testamento, segun la regla de (1) Appellant was estopped from claiming that the
jurisprudencia establecida en la sentencia de 4 de Abril de 1895." 2 deceased left a will by failing to produce the will
within twenty days of the death of the testator as
However, when as in this case, the holographic Will in dispute had required by Rule 75, section 2 of the Rules of
only one substantial provision, which was altered by substituting the Court;
original heir with another, but which alteration did not carry the (2) The alleged copy of the alleged holographic will
requisite of full authentication by the full signature of the testator, the did not contain a disposition of property after
effect must be that the entire Will is voided or revoked for the simple death and was not intended to take effect after
reason that nothing remains in the Will after that which could remain death, and therefore it was not a will
valid. To state that the Will as first written should be given efficacy is (3) The alleged hollographic will itself,and not an
to disregard the seeming change of mind of the testatrix. But that alleged copy thereof, must be produced, otherwise
change of mind can neither be given effect because she failed to

54
it would produce no effect, as held in Gam v. Yap, holographic will may not be proved by the bare testimony of witnesses
104 Phil. 509; and who have seen and/or read such will. The will itself must be presented;
(4) The deceased did not leave any will, holographic otherwise, it shall produce no effect. The law regards the document
or otherwise, executed and attested as required by itself as material proof of authenticity." But, in Footnote 8 of said
law. decision, it says that "Perhaps it may be proved by a photographic or
The appellees likewise moved for the consolidation of the photostatic copy. Even a mimeographed or carbon copy; or by other
case with another case Sp. Proc. No, 8275). Their motion similar means, if any, whereby the authenticity of the handwriting of
was granted by the court in an order dated April 4, 1977. the deceased may be exhibited and tested before the probate court,"
Evidently, the photostatic or xerox copy of the lost or destroyed
On November 13, 1978, following the consolidation of the holographic will may be admitted because then the authenticity of the
cases, the appellees moved again to dismiss the petition for handwriting of the deceased can be determined by the probate court.
the probate of the will. They argued that:
(1) The alleged holographic was not a last will but WHEREFORE, the order of the lower court dated October 3, 1979,
merely an instruction as to the management and denying appellant's motion for reconsideration dated August 9, 1979,
improvement of the schools and colleges founded of the Order dated July 23, 1979, dismissing her petition to approve
by decedent Ricardo B. Bonilla; and the will of the late Ricardo B. Bonilla, is hereby SET ASIDE. SO
(2) Lost or destroyed holographic wills cannot be ORDERED.
proved by secondary evidence unlike ordinary
wills. G.R. No. L-38338 January 28, 1985
Upon opposition of the appellant, the motion to dismiss was IN THE MATTER OF THE INTESTATE ESTATE OF
denied by the court in its order of February 23, 1979. ANDRES G. DE JESUS AND BIBIANA ROXAS DE JESUS,
SIMEON R. ROXAS & PEDRO ROXAS DE
The appellees then filed a motion for reconsideration on the JESUS, petitioners, vs.
ground that the order was contrary to law and settled ANDRES R. DE JESUS, JR., respondent.
pronouncements and rulings of the Supreme Court, to which
the appellant in turn filed an opposition. On July 23, 1979, GUTIERREZ, JR., J.:
the court set aside its order of February 23, 1979 and
dismissed the petition for the probate of the will of Ricardo This is a petition for certiorari to set aside the order of respondent Hon.
B. Bonilla. The court said: Jose C. Colayco, Presiding Judge Court of First Instance of Manila,
Branch XXI disallowing the probate of the holographic Will of the
... It is our considered opinion that once the original copy of deceased Bibiana Roxas de Jesus.
the holographic will is lost, a copy thereof cannot stand in The antecedent facts which led to the filing of this petition are
lieu of the original. undisputed.
In the case of Gam vs. Yap, 104 Phil. 509, 522, the Supreme After the death of spouses Andres G. de Jesus and Bibiana Roxas de
Court held that 'in the matter of holographic wills the law, it Jesus, Special Proceeding No. 81503 entitled "In the Matter of the
is reasonable to suppose, regards the document itself as the Intestate Estate of Andres G. de Jesus and Bibiana Roxas de Jesus"
material proof of authenticity of said wills. was filed by petitioner Simeon R. Roxas, the brother of the deceased
Bibiana Roxas de Jesus.
MOREOVER, this Court notes that the alleged holographic
will was executed on January 25, 1962 while Ricardo B. On March 26, 1973, petitioner Simeon R. Roxas was appointed
Bonilla died on May 13, 1976. In view of the lapse of more administrator. After Letters of Administration had been granted to the
than 14 years from the time of the execution of the will to petitioner, he delivered to the lower court a document purporting to be
the death of the decedent, the fact that the original of the will the holographic Will of the deceased Bibiana Roxas de Jesus. On May
could not be located shows to our mind that the decedent had 26, 1973, respondent Judge Jose Colayco set the hearing of the probate
discarded before his death his allegedly missing Holographic of the holographic Win on July 21, 1973.
Will.
Petitioner Simeon R. Roxas testified that after his appointment as
Appellant's motion for reconsideration was denied. Hence, an appeal administrator, he found a notebook belonging to the deceased Bibiana
to the Court of Appeals in which it is contended that the dismissal of R. de Jesus and that on pages 21, 22, 23 and 24 thereof, a letter-win
appellant's petition is contrary to law and well-settled jurisprudence. addressed to her children and entirely written and signed in the
handwriting of the deceased Bibiana R. de Jesus was found. The will
On July 7, 1980, appellees moved to forward the case to this Court on is dated "FEB./61 " and states: "This is my win which I want to be
the ground that the appeal does not involve question of fact and alleged respected although it is not written by a lawyer. ...
that the trial court committed the following assigned errors:
I. THE LOWER COURT ERRED IN HOLDING THAT A The testimony of Simeon R. Roxas was corroborated by the
LOST HOLOGRAPHIC WILL MAY NOT BE PROVED testimonies of Pedro Roxas de Jesus and Manuel Roxas de Jesus who
BY A COPY THEREOF; likewise testified that the letter dated "FEB./61 " is the holographic
Will of their deceased mother, Bibiana R. de Jesus. Both recognized
II. THE LOWER COURT ERRED IN HOLDING THAT the handwriting of their mother and positively Identified her signature.
THE DECEDENT HAS DISCARDED BEFORE HIS They further testified that their deceased mother understood English,
DEATH THE MISSING HOLOGRAPHIC WILL; the language in which the holographic Will is written, and that the date
"FEB./61 " was the date when said Will was executed by their mother.
III. THE LOWER COURT ERRED IN DISMISSING
APPELLANT'S WILL. Respondent Luz R. Henson, another compulsory heir filed an
"opposition to probate" assailing the purported holographic Will of
The only question here is whether a holographic will which was lost or Bibiana R. de Jesus because a it was not executed in accordance with
cannot be found can be proved by means of a photostatic copy. law, (b) it was executed through force, intimidation and/or under
Pursuant to Article 811 of the Civil Code, probate of holographic wills duress, undue influence and improper pressure, and (c) the alleged
is the allowance of the will by the court after its due execution has been testatrix acted by mistake and/or did not intend, nor could have
proved. The probate may be uncontested or not. If uncontested, at least intended the said Will to be her last Will and testament at the time of
one Identifying witness is required and, if no witness is available, its execution.
experts may be resorted to. If contested, at least three Identifying
witnesses are required. However, if the holographic will has been lost On August 24, 1973, respondent Judge Jose C. Colayco issued an order
or destroyed and no other copy is available, the will can not be allowing the probate of the holographic Will which he found to have
probated because the best and only evidence is the handwriting of the been duly executed in accordance with law.
testator in said will. It is necessary that there be a comparison between
sample handwritten statements of the testator and the handwritten will. Respondent Luz Roxas de Jesus filed a motion for reconsideration
But, a photostatic copy or xerox copy of the holographic will may be alleging inter alia that the alleged holographic Will of the deceased
allowed because comparison can be made with the standard writings Bibiana R. de Jesus was not dated as required by Article 810 of the
of the testator. In the case of Gam vs. Yap, 104 PHIL. 509, the Court Civil Code. She contends that the law requires that the Will should
ruled that "the execution and the contents of a lost or destroyed

55
contain the day, month and year of its execution and that this should of the law, the inclination should, in the absence of any
be strictly complied with. suggestion of bad faith, forgery or fraud, lean towards its
admission to probate, although the document may suffer
On December 10, 1973, respondent Judge Colayco reconsidered his from some imperfection of language, or other non-essential
earlier order and disallowed the probate of the holographic Will on the defect. ... (Leynez v. Leynez 68 Phil. 745).
ground that the word "dated" has generally been held to include the
month, day, and year. The dispositive portion of the order reads: If the testator, in executing his Will, attempts to comply with all the
WHEREFORE, the document purporting to be the requisites, although compliance is not literal, it is sufficient if the
holographic Will of Bibiana Roxas de Jesus, is hereby objective or purpose sought to be accomplished by such requisite is
disallowed for not having been executed as required by the actually attained by the form followed by the testator.
law. The order of August 24, 1973 is hereby set aside.
The purpose of the solemnities surrounding the execution of Wills has
The only issue is whether or not the date "FEB./61 " appearing on the been expounded by this Court in Abangan v. Abanga 40 Phil. 476,
holographic Will of the deceased Bibiana Roxas de Jesus is a valid where we ruled that:
compliance with the Article 810 of the Civil Code which reads: The object of the solemnities surrounding the execution of
ART. 810. A person may execute a holographic will which wills is to close the door against bad faith and fraud, to avoid
must be entirely written, dated, and signed by the hand of the substitution of wills and testaments and to guaranty their
testator himself. It is subject to no other form, and may be truth and authenticity. ...
made in or out of the Philippines, and need not be witnessed.
In particular, a complete date is required to provide against such
The petitioners contend that while Article 685 of the Spanish Civil contingencies as that of two competing Wills executed on the same
Code and Article 688 of the Old Civil Code require the testator to state day, or of a testator becoming insane on the day on which a Will was
in his holographic Win the "year, month, and day of its execution," the executed (Velasco v. Lopez, 1 Phil. 720). There is no such contingency
present Civil Code omitted the phrase Ao mes y dia and simply in this case.
requires that the holographic Will should be dated. The petitioners
submit that the liberal construction of the holographic Will should We have carefully reviewed the records of this case and found no
prevail. evidence of bad faith and fraud in its execution nor was there any
substitution of Wins and Testaments. There is no question that the
Respondent Luz Henson on the other hand submits that the purported holographic Will of the deceased Bibiana Roxas de Jesus was entirely
holographic Will is void for non-compliance with Article 810 of the written, dated, and signed by the testatrix herself and in a language
New Civil Code in that the date must contain the year, month, and day known to her. There is also no question as to its genuineness and due
of its execution. The respondent contends that Article 810 of the Civil execution. All the children of the testatrix agree on the genuineness of
Code was patterned after Section 1277 of the California Code and the holographic Will of their mother and that she had the testamentary
Section 1588 of the Louisiana Code whose Supreme Courts had capacity at the time of the execution of said Will. The objection
consistently ruled that the required date includes the year, month, and interposed by the oppositor-respondent Luz Henson is that the
day, and that if any of these is wanting, the holographic Will is invalid. holographic Will is fatally defective because the date "FEB./61 "
The respondent further contends that the petitioner cannot plead liberal appearing on the holographic Will is not sufficient compliance with
construction of Article 810 of the Civil Code because statutes Article 810 of the Civil Code. This objection is too technical to be
prescribing the formalities to be observed in the execution of entertained.
holographic Wills are strictly construed.
As a general rule, the "date" in a holographic Will should include the
We agree with the petitioner. day, month, and year of its execution. However, when as in the case at
bar, there is no appearance of fraud, bad faith, undue influence and
This will not be the first time that this Court departs from a strict and pressure and the authenticity of the Will is established and the only
literal application of the statutory requirements regarding the due issue is whether or not the date "FEB./61" appearing on the
execution of Wills. We should not overlook the liberal trend of the holographic Will is a valid compliance with Article 810 of the Civil
Civil Code in the manner of execution of Wills, the purpose of which, Code, probate of the holographic Will should be allowed under the
in case of doubt is to prevent intestacy principle of substantial compliance.
The underlying and fundamental objectives permeating the
provisions of the law on wigs in this Project consists in the WHEREFORE, the instant petition is GRANTED. The order appealed
liberalization of the manner of their execution with the end from is REVERSED and SET ASIDE and the order allowing the
in view of giving the testator more freedom in expressing his probate of the holographic Will of the deceased Bibiana Roxas de Jesus
last wishes, but with sufficien safeguards and restrictions to is reinstated. SO ORDERED.
prevent the commission of fraud and the exercise of undue
and improper pressure and influence upon the testator. G.R. No. 176831 January 15, 2010
This objective is in accord with the modem tendency with UY KIAO ENG, Petitioner, vs.
respect to the formalities in the execution of wills. (Report NIXON LEE, Respondent.
of the Code Commission, p. 103)
DECISION
In Justice Capistrano's concurring opinion in Heirs of Raymundo NACHURA, J.:
Castro v. Bustos (27 SCRA 327) he emphasized that:
xxx xxx xxx Before the Court is a petition for review on certiorari under Rule 45 of
... The law has a tender regard for the will of the testator the Rules of Court, assailing the August 23, 2006 Amended
expressed in his last will and testament on the ground that Decision1 of the Court of Appeals (CA) in CA-G.R. SP No. 91725 and
any disposition made by the testator is better than that which the February 23, 2007 Resolution,2 denying the motion for
the law can make. For this reason, intestate succession is reconsideration thereof.
nothing more than a disposition based upon the presumed
will of the decedent. The relevant facts and proceedings follow.
Thus, the prevailing policy is to require satisfaction of the legal Alleging that his father passed away on June 22, 1992 in Manila and
requirements in order to guard against fraud and bad faith but without left a holographic will, which is now in the custody of petitioner Uy
undue or unnecessary curtailment of testamentary privilege Icasiano Kiao Eng, his mother, respondent Nixon Lee filed, on May 28, 2001,
v. Icasiano, 11 SCRA 422). If a Will has been executed in substantial a petition for mandamus with damages, docketed as Civil Case No.
compliance with the formalities of the law, and the possibility of bad 01100939, before the Regional Trial Court (RTC) of Manila, to compel
faith and fraud in the exercise thereof is obviated, said Win should be petitioner to produce the will so that probate proceedings for the
admitted to probate (Rey v. Cartagena 56 Phil. 282). Thus, allowance thereof could be instituted. Allegedly, respondent had
xxx xxx xxx already requested his mother to settle and liquidate the patriarchs
... More than anything else, the facts and circumstances of estate and to deliver to the legal heirs their respective inheritance, but
record are to be considered in the application of any given petitioner refused to do so without any justifiable reason.3
rule. If the surrounding circumstances point to a regular
execution of the wilt and the instrument appears to have been In her answer with counterclaim, petitioner traversed the allegations in
executed substantially in accordance with the requirements the complaint and posited that the same be dismissed for failure to state
56
a cause of action, for lack of cause of action, and for non-compliance the performance of a public duty, most especially when the public right
with a condition precedent for the filing thereof. Petitioner denied that involved is mandated by the Constitution.16 As the quoted provision
she was in custody of the original holographic will and that she knew instructs, mandamus will lie if the tribunal, corporation, board, officer,
of its whereabouts. She, moreover, asserted that photocopies of the will or person unlawfully neglects the performance of an act which the law
were given to respondent and to his siblings. As a matter of fact, enjoins as a duty resulting from an office, trust or station.17
respondent was able to introduce, as an exhibit, a copy of the will in
Civil Case No. 224-V-00 before the RTC of Valenzuela City. The writ of mandamus, however, will not issue to compel an official
Petitioner further contended that respondent should have first exerted to do anything which is not his duty to do or which it is his duty not to
earnest efforts to amicably settle the controversy with her before he do, or to give to the applicant anything to which he is not entitled by
filed the suit.4 law.18 Nor will mandamus issue to enforce a right which is in
substantial dispute or as to which a substantial doubt exists, although
The RTC heard the case. After the presentation and formal offer of objection raising a mere technical question will be disregarded if the
respondents evidence, petitioner demurred, contending that her son right is clear and the case is meritorious.19 As a rule, mandamus will
failed to prove that she had in her custody the original holographic will. not lie in the absence of any of the following grounds: [a] that the court,
Importantly, she asserted that the pieces of documentary evidence officer, board, or person against whom the action is taken unlawfully
presented, aside from being hearsay, were all immaterial and irrelevant neglected the performance of an act which the law specifically enjoins
to the issue involved in the petitionthey did not prove or disprove as a duty resulting from office, trust, or station; or [b] that such court,
that she unlawfully neglected the performance of an act which the law officer, board, or person has unlawfully excluded petitioner/relator
specifically enjoined as a duty resulting from an office, trust or station, from the use and enjoyment of a right or office to which he is
for the court to issue the writ of mandamus.5 entitled.20 On the part of the relator, it is essential to the issuance of a
writ of mandamus that he should have a clear legal right to the thing
The RTC, at first, denied the demurrer to evidence.6 In its February 4, demanded and it must be the imperative duty of respondent to perform
2005 Order,7 however, it granted the same on petitioners motion for the act required.21
reconsideration. Respondents motion for reconsideration of this latter
order was denied on September 20, 2005.8 Hence, the petition was Recognized further in this jurisdiction is the principle that mandamus
dismissed. cannot be used to enforce contractual obligations.22 Generally,
mandamus will not lie to enforce purely private contract rights, and
Aggrieved, respondent sought review from the appellate court. On will not lie against an individual unless some obligation in the nature
April 26, 2006, the CA initially denied the appeal for lack of merit. It of a public or quasi-public duty is imposed.23 The writ is not
ruled that the writ of mandamus would issue only in instances when no appropriate to enforce a private right against an individual.24 The writ
other remedy would be available and sufficient to afford redress. of mandamus lies to enforce the execution of an act, when, otherwise,
Under Rule 76, in an action for the settlement of the estate of his justice would be obstructed; and, regularly, issues only in cases
deceased father, respondent could ask for the presentation or relating to the public and to the government; hence, it is called a
production and for the approval or probate of the holographic will. The prerogative writ.25 To preserve its prerogative character, mandamus is
CA further ruled that respondent, in the proceedings before the trial not used for the redress of private wrongs, but only in matters relating
court, failed to present sufficient evidence to prove that his mother had to the public.26
in her custody the original copy of the will.91avvphi1
Moreover, an important principle followed in the issuance of the writ
Respondent moved for reconsideration. The appellate court, in the is that there should be no plain, speedy and adequate remedy in the
assailed August 23, 2006 Amended Decision,10 granted the motion, set ordinary course of law other than the remedy of mandamus being
aside its earlier ruling, issued the writ, and ordered the production of invoked.27 In other words, mandamus can be issued only in cases
the will and the payment of attorneys fees. It ruled this time that where the usual modes of procedure and forms of remedy are
respondent was able to show by testimonial evidence that his mother powerless to afford relief.28 Although classified as a legal remedy,
had in her possession the holographic will. mandamus is equitable in its nature and its issuance is generally
controlled by equitable principles.29 Indeed, the grant of the writ of
Dissatisfied with this turn of events, petitioner filed a motion for mandamus lies in the sound discretion of the court.
reconsideration. The appellate court denied this motion in the further
assailed February 23, 2007 Resolution.11 In the instant case, the Court, without unnecessarily ascertaining
whether the obligation involved herethe production of the original
Left with no other recourse, petitioner brought the matter before this holographic willis in the nature of a public or a private duty, rules
Court, contending in the main that the petition for mandamus is not the that the remedy of mandamus cannot be availed of by respondent Lee
proper remedy and that the testimonial evidence used by the appellate because there lies another plain, speedy and adequate remedy in the
court as basis for its ruling is inadmissible.12 ordinary course of law. Let it be noted that respondent has a photocopy
of the will and that he seeks the production of the original for purposes
The Court cannot sustain the CAs issuance of the writ. of probate. The Rules of Court, however, does not prevent him from
instituting probate proceedings for the allowance of the will whether
The first paragraph of Section 3 of Rule 65 of the Rules of Court the same is in his possession or not. Rule 76, Section 1 relevantly
pertinently provides that provides:

SEC. 3. Petition for mandamus.When any tribunal, corporation, Section 1. Who may petition for the allowance of will.Any executor,
board, officer or person unlawfully neglects the performance of an act devisee, or legatee named in a will, or any other person interested in
which the law specifically enjoins as a duty resulting from an office, the estate, may, at any time, after the death of the testator, petition the
trust, or station, or unlawfully excludes another from the use and court having jurisdiction to have the will allowed, whether the same be
enjoyment of a right or office to which such other is entitled, and there in his possession or not, or is lost or destroyed.
is no other plain, speedy and adequate remedy in the ordinary course
of law, the person aggrieved thereby may file a verified petition in the An adequate remedy is further provided by Rule 75, Sections 2 to 5,
proper court, alleging the facts with certainty and praying that for the production of the original holographic will. Thus
judgment be rendered commanding the respondent, immediately or at SEC. 2. Custodian of will to deliver.The person who has custody of
some other time to be specified by the court, to do the act required to a will shall, within twenty (20) days after he knows of the death of the
be done to protect the rights of the petitioner, and to pay the damages testator, deliver the will to the court having jurisdiction, or to the
sustained by the petitioner by reason of the wrongful acts of the executor named in the will.
respondent.13
SEC. 3. Executor to present will and accept or refuse trust.A person
Mandamus is a command issuing from a court of law of competent named as executor in a will shall within twenty (20) days after he
jurisdiction, in the name of the state or the sovereign, directed to some knows of the death of the testator, or within twenty (20) days after he
inferior court, tribunal, or board, or to some corporation or person knows that he is named executor if he obtained such knowledge after
requiring the performance of a particular duty therein specified, which the death of the testator, present such will to the court having
duty results from the official station of the party to whom the writ is jurisdiction, unless the will has reached the court in any other manner,
directed or from operation of law.14 This definition recognizes the and shall, within such period, signify to the court in writing his
public character of the remedy, and clearly excludes the idea that it acceptance of the trust or his refusal to accept it.
may be resorted to for the purpose of enforcing the performance of
duties in which the public has no interest.15 The writ is a proper SEC. 4. Custodian and executor subject to fine for neglect.A person
recourse for citizens who seek to enforce a public right and to compel who neglects any of the duties required in the two last preceding

57
sections without excuse satisfactory to the court shall be fined not Interpreting and applying this requirement this Court in the case of In
exceeding two thousand pesos. 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,
SEC. 5. Person retaining will may be committed.A person having said:
custody of a will after the death of the testator who neglects without . . . . This defect is radical and totally vitiates the testament.
reasonable cause to deliver the same, when ordered so to do, to the It is not enough that the signatures guaranteeing authenticity
court having jurisdiction, may be committed to prison and there kept should appear upon two folios or leaves; three pages having
until he delivers the will.30 been written on, the authenticity of all three of them should
be guaranteed by the signature of the alleged testatrix and
There being a plain, speedy and adequate remedy in the ordinary her witnesses.
course of law for the production of the subject will, the remedy of
mandamus cannot be availed of. Suffice it to state that respondent Lee And in the case of Aspe vs. Prieto, 46 Phil., 700, referring to the same
lacks a cause of action in his petition. Thus, the Court grants the requirement, this Court declared:
demurrer. From an examination of the document in question, it appears
that the left margins of the six pages of the document are
WHEREFORE, premises considered, the petition for review on signed only by Ventura Prieto. The noncompliance with
certiorari is GRANTED. The August 23, 2006 Amended Decision and section 2 of Act No. 2645 by the attesting witnesses who
the February 23, 2007 Resolution of the Court of Appeals in CA-G.R. omitted to sign with the testator at the left margin of each of
SP No. 91725 are REVERSED and SET ASIDE. Civil Case No. the five pages of the document alleged to be the will of
01100939 before the Regional Trial Court of Manila is DISMISSED. Ventura Prieto, is a fatal defect that constitutes an obstacle
SO ORDERED. to its probate.

G.R. No. L-7188 August 9, 1954 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,
In re: Will and Testament of the deceased REVEREND like Exhibit "A" which provisions were invoked by the appellee-
SANCHO ABADIA. 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
SEVERINA A. VDA. DE ENRIQUEZ, ET AL., petitioners- form depends upon the observance of the law in force at the time it is
appellees, vs. MIGUEL ABADIA, ET AL., oppositors-appellants. 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
MONTEMAYOR, J.: 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
On September 6, 1923, Father Sancho Abadia, parish priest of Talisay, is decided by the court but at the time the instrument was executed.
Cebu, executed a document purporting to be his Last Will and One reason in support of the rule is that although the will operates upon
Testament now marked Exhibit "A". Resident of the City of Cebu, he and after the death of the testator, the wishes of the testator about the
died on January 14, 1943, in the municipality of Aloguinsan, Cebu, disposition of his estate among his heirs and among the legatees is
where he was an evacuee. He left properties estimated at P8,000 in given solemn expression at the time the will is executed, and in reality,
value. On October 2, 1946, one Andres Enriquez, one of the legatees the legacy or bequest then becomes a completed act. This ruling has
in Exhibit "A", filed a petition for its probate in the Court of First been laid down by this court in the case of In re Will of Riosa, 39 Phil.,
Instance of Cebu. Some cousins and nephews who would inherit the 23. It is a wholesome doctrine and should be followed.
estate of the deceased if he left no will, filed opposition.
Of course, there is the view that the intention of the testator should be
During the hearing one of the attesting witnesses, the other two being the ruling and controlling factor and that all adequate remedies and
dead, testified without contradiction that in his presence and in the interpretations should be resorted to in order to carry out said intention,
presence of his co-witnesses, Father Sancho wrote out in longhand and that when statutes passed after the execution of the will and after
Exhibit "A" in Spanish which the testator spoke and understood; that the death of the testator lessen the formalities required by law for the
he (testator) signed on he left hand margin of the front page of each of execution of wills, said subsequent statutes should be applied so as to
the three folios or sheets of which the document is composed, and validate wills defectively executed according to the law in force at the
numbered the same with Arabic numerals, and finally signed his name time of execution. However, we should not forget that from the day of
at the end of his writing at the last page, all this, in the presence of the the death of the testator, if he leaves a will, the title of the legatees and
three attesting witnesses after telling that it was his last will and that devisees under it becomes a vested right, protected under the due
the said three witnesses signed their names on the last page after the process clause of the constitution against a subsequent change in the
attestation clause in his presence and in the presence of each other. The statute adding new legal requirements of execution of wills which
oppositors did not submit any evidence. would invalidate such a will. By parity of reasoning, when one
executes a will which is invalid for failure to observe and follow the
The learned trial court found and declared Exhibit "A" to be a legal requirements at the time of its execution then upon his death he
holographic will; that it was in the handwriting of the testator and that should be regarded and declared as having died intestate, and his heirs
although at the time it was executed and at the time of the testator's will then inherit by intestate succession, and no subsequent law with
death, holographic wills were not permitted by law still, because at the more liberal requirements or which dispenses with such requirements
time of the hearing and when the case was to be decided the new Civil as to execution should be allowed to validate a defective will and
Code was already in force, which Code permitted the execution of thereby divest the heirs of their vested rights in the estate by intestate
holographic wills, under a liberal view, and to carry out the intention succession. The general rule is that the Legislature can not validate
of the testator which according to the trial court is the controlling factor void wills (57 Am. Jur., Wills, Sec. 231, pp. 192-193).
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 In view of the foregoing, the order appealed from is reversed, and
and Testament of Father Sancho Abadia. The oppositors are appealing Exhibit "A" is denied probate. With costs.
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. G.R. Nos. 140371-72 November 27, 2006

The new Civil Code (Republic Act No. 386) under article 810 thereof DY YIENG SEANGIO, BARBARA D. SEANGIO and
provides that a person may execute a holographic will which must be VIRGINIA D. SEANGIO, Petitioners, vs.
entirely written, dated and signed by the testator himself and need not HON. AMOR A. REYES, in her capacity as Presiding Judge,
be witnessed. It is a fact, however, that at the time that Exhibit "A" was Regional Trial Court, National Capital Judicial Region, Branch
executed in 1923 and at the time that Father Abadia died in 1943, 21, Manila, ALFREDO D. SEANGIO, ALBERTO D. SEANGIO,
holographic wills were not permitted, and the law at the time imposed ELISA D. SEANGIO-SANTOS, VICTOR D. SEANGIO,
certain requirements for the execution of wills, such as numbering ALFONSO D. SEANGIO, SHIRLEY D. SEANGIO-LIM,
correlatively each page (not folio or sheet) in letters and signing on the BETTY D. SEANGIO-OBAS and JAMES D.
left hand margin by the testator and by the three attesting witnesses, SEANGIO, Respondents.
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 DECISION
one, not even by the testator and were not numbered, and as to the three AZCUNA, J.:
front pages, they were signed only by the testator.

58
This is a petition for certiorari1 with application for the issuance of a On May 29, 1999, upon petitioners motion, SP. Proc. No. 9890870
writ of preliminary injunction and/or temporary restraining order and SP. Proc. No. 9993396 were consolidated.4
seeking the nullification of the orders, dated August 10, 1999 and
October 14, 1999, of the Regional Trial Court of Manila, Branch 21 On July 1, 1999, private respondents moved for the dismissal of the
(the RTC), dismissing the petition for probate on the ground of probate proceedings5 primarily on the ground that the document
preterition, in the consolidated cases, docketed as SP. Proc. No. 98- purporting to be the holographic will of Segundo does not contain any
90870 and SP. Proc. No. 99-93396, and entitled, "In the Matter of the disposition of the estate of the deceased and thus does not meet the
Intestate Estate of Segundo C. Seangio v. Alfredo D. Seangio, et al." definition of a will under Article 783 of the Civil Code. According to
and "In the Matter of the Probate of the Will of Segundo C. Seangio v. private respondents, the will only shows an alleged act of
Dy Yieng Seangio, Barbara D. Seangio and Virginia Seangio." disinheritance by the decedent of his eldest son, Alfredo, and nothing
else; that all other compulsory heirs were not named nor instituted as
The facts of the cases are as follows: heir, devisee or legatee, hence, there is preterition which would result
to intestacy. Such being the case, private respondents maintained that
On September 21, 1988, private respondents filed a petition for the while procedurally the court is called upon to rule only on the extrinsic
settlement of the intestate estate of the late Segundo Seangio, docketed validity of the will, it is not barred from delving into the intrinsic
as Sp. Proc. No. 9890870 of the RTC, and praying for the validity of the same, and ordering the dismissal of the petition for
appointment of private respondent Elisa D. SeangioSantos as special probate when on the face of the will it is clear that it contains no
administrator and guardian ad litem of petitioner Dy Yieng Seangio. testamentary disposition of the property of the decedent.

Petitioners Dy Yieng, Barbara and Virginia, all surnamed Seangio, Petitioners filed their opposition to the motion to dismiss contending
opposed the petition. They contended that: 1) Dy Yieng is still very that: 1) generally, the authority of the probate court is limited only to
healthy and in full command of her faculties; 2) the deceased Segundo a determination of the extrinsic validity of the will; 2) private
executed a general power of attorney in favor of Virginia giving her respondents question the intrinsic and not the extrinsic validity of the
the power to manage and exercise control and supervision over his will; 3) disinheritance constitutes a disposition of the estate of a
business in the Philippines; 3) Virginia is the most competent and decedent; and, 4) the rule on preterition does not apply because
qualified to serve as the administrator of the estate of Segundo because Segundos will does not constitute a universal heir or heirs to the
she is a certified public accountant; and, 4) Segundo left a holographic exclusion of one or more compulsory heirs.6
will, dated September 20, 1995, disinheriting one of the private
respondents, Alfredo Seangio, for cause. In view of the purported On August 10, 1999, the RTC issued its assailed order, dismissing the
holographic will, petitioners averred that in the event the decedent is petition for probate proceedings:
found to have left a will, the intestate proceedings are to be
automatically suspended and replaced by the proceedings for the A perusal of the document termed as "will" by oppositors/petitioners
probate of the will. Dy Yieng Seangio, et al., clearly shows that there is preterition, as the
only heirs mentioned thereat are Alfredo and Virginia. [T]he other
On April 7, 1999, a petition for the probate of the holographic will of heirs being omitted, Article 854 of the New Civil Code thus applies.
Segundo, docketed as SP. Proc. No. 9993396, was filed by petitioners However, insofar as the widow Dy Yieng Seangio is concerned,
before the RTC. They likewise reiterated that the probate proceedings Article 854 does not apply, she not being a compulsory heir in the
should take precedence over SP. Proc. No. 9890870 because testate direct line.
proceedings take precedence and enjoy priority over intestate
proceedings.2 As such, this Court is bound to dismiss this petition, for to do otherwise
would amount to an abuse of discretion. The Supreme Court in the case
The document that petitioners refer to as Segundos holographic will of Acain v. Intermediate Appellate Court [155 SCRA 100 (1987)] has
is quoted, as follows: made its position clear: "for respondents to have tolerated the
probate of the will and allowed the case to progress when, on its face,
Kasulatan sa pag-aalis ng mana the will appears to be intrinsically void would have been an exercise
Tantunin ng sinuman in futility. It would have meant a waste of time, effort, expense, plus
added futility. The trial court could have denied its probate outright or
Ako si Segundo Seangio Filipino may asawa naninirahan sa could have passed upon the intrinsic validity of the testamentary
465-A Flores St., Ermita, Manila at nagtatalay ng maiwanag na pag- provisions before the extrinsic validity of the will was
iisip at disposisyon ay tahasan at hayagang inaalisan ko ng lahat at resolved (underscoring supplied).
anumang mana ang paganay kong anak na si Alfredo Seangio dahil
siya ay naging lapastangan sa akin at isan beses siya ng sasalita ng WHEREFORE, premises considered, the Motion to Suspend
masama harapan ko at mga kapatid niya na si Virginia Seangio labis Proceedings is hereby DENIED for lack of merit. Special Proceedings
kong kinasama ng loob ko at sasabe rin ni Alfredo sa akin na ako nasa No. 9993396 is hereby DISMISSED without pronouncement as to
ibabaw gayon gunit daratin ang araw na ako nasa ilalim siya at siya costs.
nasa ibabaw. SO ORDERED.7

Labis kong ikinasama ng loob ko ang gamit ni Alfredo ng Petitioners motion for reconsideration was denied by the RTC in its
akin pagalan para makapagutang na kuarta siya at kanya asawa na si order dated October 14, 1999.
Merna de los Reyes sa China Bangking Corporation na millon pesos
at hindi ng babayad at hindi ng babayad ito ay nagdulot sa aking ng Petitioners contend that:
malaking kahihiya sa mga may-ari at stockholders ng China Banking. THE RESPONDENT JUDGE ACTED IN EXCESS OF HER
JURISDICTION OR WITH GRAVE ABUSE OF DISCRETION
At ikinagalit ko pa rin ang pagkuha ni Alfredo at ng kanyang AMOUNTING TO LACK OR EXCESS OF JURISDICTION AND
asawa na mga custome[r] ng Travel Center of the Philippines na DECIDED A QUESTION OF LAW NOT IN ACCORD WITH LAW
pinagasiwaan ko at ng anak ko si Virginia. AND JURISPRUDENCE IN ISSUING THE QUESTIONED
ORDERS, DATED 10 AUGUST 1999 AND 14 OCTOBER 1999
Dito ako nagalit din kaya gayon ayoko na bilanin si Alfredo (ATTACHMENTS "A" AND "B" HEREOF) CONSIDERING
ng anak ko at hayanan kong inaalisan ng lahat at anoman mana na si THAT:
Alfredo at si Alfredo Seangio ay hindi ko siya anak at hindi siya
makoha mana. I
THE RESPONDENT JUDGE, WITHOUT EVEN COMPLYING
Nila[g]daan ko ngayon ika 20 ng Setyembre 1995 sa longsod ng WITH SECTIONS 3 AND 4 OF RULE 76 OF THE RULES OF
Manila sa harap ng tatlong saksi. 3 COURT ON THE PROPER PROCEDURE FOR SETTING THE
(signed) CASE FOR INITIAL HEARING FOR THE ESTABLISHMENT OF
Segundo Seangio THE JURISDICTIONAL FACTS, DISMISSED THE TESTATE
Nilagdaan sa harap namin CASE ON THE ALLEGED GROUND THAT THE TESTATORS
(signed) WILL IS VOID ALLEGEDLY BECAUSE OF THE EXISTENCE OF
Dy Yieng Seangio (signed) PRETERITION, WHICH GOES INTO THE INTRINSIC VALIDITY
Unang Saksi ikalawang saksi OF THE WILL, DESPITE THE FACT THAT IT IS A SETTLED
(signed) RULE THAT THE AUTHORITY OF PROBATE COURTS IS
ikatlong saksi LIMITED ONLY TO A DETERMINATION OF THE EXTRINSIC
VALIDITY OF THE WILL, I.E., THE DUE EXECUTION

59
THEREOF, THE TESTATORS TESTAMENTARY CAPACITY (6) Maltreatment of the testator by word or deed, by the child
AND THE COMPLIANCE WITH THE REQUISITES OR or descendant;8
SOLEMNITIES PRESCRIBED BY LAW; (7) When a child or descendant leads a dishonorable or
disgraceful life;
II (8) Conviction of a crime which carries with it the penalty of
EVEN ASSUMING ARGUENDO THAT THE RESPONDENT civil interdiction.
JUDGE HAS THE AUTHORITY TO RULE UPON THE INTRINSIC
VALIDITY OF THE WILL OF THE TESTATOR, IT IS Now, the critical issue to be determined is whether the document
INDUBITABLE FROM THE FACE OF THE TESTATORS WILL executed by Segundo can be considered as a holographic will.
THAT NO PRETERITON EXISTS AND THAT THE WILL IS
BOTH INTRINSICALLY AND EXTRINSICALLY VALID; AND, A holographic will, as provided under Article 810 of the Civil Code,
must be entirely written, dated, and signed by the hand of the testator
III himself. It is subject to no other form, and may be made in or out of
RESPONDENT JUDGE WAS DUTY BOUND TO SUSPEND THE the Philippines, and need not be witnessed.
PROCEEDINGS IN THE INTESTATE CASE CONSIDERING
THAT IT IS A SETTLED RULE THAT TESTATE PROCEEDINGS Segundos document, although it may initially come across as a mere
TAKE PRECEDENCE OVER INTESTATE PROCEEDINGS. disinheritance instrument, conforms to the formalities of a holographic
will prescribed by law. It is written, dated and signed by the hand of
Petitioners argue, as follows: Segundo himself. An intent to dispose mortis causa[9] can be clearly
First, respondent judge did not comply with Sections 3 and 4 of Rule deduced from the terms of the instrument, and while it does not make
76 of the Rules of Court which respectively mandate the court to: a) an affirmative disposition of the latters property, the disinheritance of
fix the time and place for proving the will when all concerned may Alfredo, nonetheless, is an act of disposition in itself. In other words,
appear to contest the allowance thereof, and cause notice of such time the disinheritance results in the disposition of the property of the
and place to be published three weeks successively previous to the testator Segundo in favor of those who would succeed in the absence
appointed time in a newspaper of general circulation; and, b) cause the of Alfredo.10
mailing of said notice to the heirs, legatees and devisees of the testator
Segundo; Moreover, it is a fundamental principle that the intent or the will of the
testator, expressed in the form and within the limits prescribed by law,
Second, the holographic will does not contain any institution of an heir, must be recognized as the supreme law in succession. All rules of
but rather, as its title clearly states, Kasulatan ng Pag-Aalis ng construction are designed to ascertain and give effect to that intention.
Mana, simply contains a disinheritance of a compulsory heir. Thus, It is only when the intention of the testator is contrary to law, morals,
there is no preterition in the decedents will and the holographic will or public policy that it cannot be given effect.11
on its face is not intrinsically void;
Holographic wills, therefore, being usually prepared by one who is not
Third, the testator intended all his compulsory heirs, petitioners and learned in the law, as illustrated in the present case, should be
private respondents alike, with the sole exception of Alfredo, to inherit construed more liberally than the ones drawn by an expert, taking into
his estate. None of the compulsory heirs in the direct line of Segundo account the circumstances surrounding the execution of the instrument
were preterited in the holographic will since there was no institution of and the intention of the testator.12 In this regard, the Court is convinced
an heir; that the document, even if captioned as Kasulatan ng Pag-Aalis ng
Mana, was intended by Segundo to be his last testamentary act and was
Fourth, inasmuch as it clearly appears from the face of the holographic executed by him in accordance with law in the form of a holographic
will that it is both intrinsically and extrinsically valid, respondent judge will. Unless the will is probated,13 the disinheritance cannot be given
was mandated to proceed with the hearing of the testate case; and, effect.14

Lastly, the continuation of the proceedings in the intestate case will With regard to the issue on preterition,15 the Court believes that the
work injustice to petitioners, and will render nugatory the compulsory heirs in the direct line were not preterited in the will. It
disinheritance of Alfredo. was, in the Courts opinion, Segundos last expression to bequeath his
estate to all his compulsory heirs, with the sole exception of Alfredo.
The purported holographic will of Segundo that was presented by Also, Segundo did not institute an heir16 to the exclusion of his other
petitioners was dated, signed and written by him in his own compulsory heirs. The mere mention of the name of one of the
handwriting. Except on the ground of preterition, private respondents petitioners, Virginia, in the document did not operate to institute her as
did not raise any issue as regards the authenticity of the document. the universal heir. Her name was included plainly as a witness to the
altercation between Segundo and his son, Alfredo.1wphi1
The document, entitled Kasulatan ng Pag-Aalis ng Mana,
unmistakably showed Segundos intention of excluding his eldest son, Considering that the questioned document is Segundos holographic
Alfredo, as an heir to his estate for the reasons that he cited therein. In will, and that the law favors testacy over intestacy, the probate of the
effect, Alfredo was disinherited by Segundo. will cannot be dispensed with. Article 838 of the Civil Code provides
that no will shall pass either real or personal property unless it is proved
For disinheritance to be valid, Article 916 of the Civil Code requires and allowed in accordance with the Rules of Court. Thus, unless the
that the same must be effected through a will wherein the legal cause will is probated, the right of a person to dispose of his property may be
therefor shall be specified. With regard to the reasons for the rendered nugatory.17
disinheritance that were stated by Segundo in his document, the Court
believes that the incidents, taken as a whole, can be considered a form In view of the foregoing, the trial court, therefore, should have allowed
of maltreatment of Segundo by his son, Alfredo, and that the matter the holographic will to be probated. It is settled that testate proceedings
presents a sufficient cause for the disinheritance of a child or for the settlement of the estate of the decedent take precedence over
descendant under Article 919 of the Civil Code: intestate proceedings for the same purpose.18

Article 919. The following shall be sufficient causes for the WHEREFORE, the petition is GRANTED. The Orders of the
disinheritance of children and descendants, legitimate as well as Regional Trial Court of Manila, Branch 21, dated August 10, 1999 and
illegitimate: October 14, 1999, are set aside. Respondent judge is directed to
(1) When a child or descendant has been found guilty of an reinstate and hear SP Proc. No. 99-93396 for the allowance of the
attempt against the life of the testator, his or her spouse, holographic will of Segundo Seangio. The intestate case or SP. Proc.
descendants, or ascendants; No. 98-90870 is hereby suspended until the termination of the
(2) When a child or descendant has accused the testator of a aforesaid testate proceedings. No costs. SO ORDERED.
crime for which the law prescribes imprisonment for six
years or more, if the accusation has been found groundless; G.R. No. 123486 August 12, 1999
(3) When a child or descendant has been convicted of
adultery or concubinage with the spouse of the testator; EUGENIA RAMONAL CODOY, and MANUEL
(4) When a child or descendant by fraud, violence, RAMONAL, petitioners, vs.
intimidation, or undue influence causes the testator to make EVANGELINE R. CALUGAY, JOSEPHINE SALCEDO, and
a will or to change one already made; UEFEMIA PATIGAS, respondents.
(5) A refusal without justifiable cause to support the parents
or ascendant who disinherit such child or descendant; PARDO, J.:
60
the basis for comparison of the handwriting of the testatrix, with the
Before us is a petition for review on certiorari of the decision of the writing treated or admitted as genuine by the party against whom the
Court of Appeals1 and its resolution denying reconsideration, ruling: evidence is offered.
Upon the unrebutted testimony of appellant Evangeline
Calugay and witness Matilde Ramonal Binanay, the Generosa Senon, election registrar of Cagayan de Oro, was presented
authenticity of testators holographic will has been to produced and identify the voter's affidavit of the decedent. However,
established and the handwriting and signature therein the voters' affidavit was not produced for the same was already
(exhibit S) are hers, enough to probate said will. Reversal of destroyed and no longer available.
the judgment appealed from and the probate of the
holographic will in question be called for. The rule is that Matilde Ramonal Binanay, testified that the deceased Matilde Seo
after plaintiff has completed presentation of his evidence and Vda. de Ramonal was her aunt, and that after the death of Matilde's
the defendant files a motion for judgment on demurrer to husband, the latter lived with her in her parent's house for eleven (11)
evidence on the ground that upon the facts and the law years from 1958 to 1969. During those eleven (11) years of close
plaintiff has shown no right to relief, if the motion is granted association the deceased, she acquired familiarity with her signature
and the order to dismissal is reversed on appeal, the movant and handwriting as she used to accompany her (deceased Matilde Seo
loses his right to present evidence in his behalf (Sec, 1 Rule Vda. de Ramonal) in collecting rentals from her various tenants of
35 Revised Rules of Court). Judgment may, therefore, be commercial buildings, and deceased always issued receipts. In addition
rendered for appellant in the instant case. to this, she (witness Matilde Binanay) assisted the deceased in posting
the records of the accounts, and carried personal letters of the deceased
Wherefore, the order appealed from is REVERSED and to her creditors.
judgment rendered allowing the probate of the holographic
will of the testator Matilde Seo Vda. de Ramonal.2 Matilde Ramonal Binanay further testified that at the time of the death
of Matilde Vda. de Ramonal, she left a holographic will dated August
The facts are as follows: 30, 1978, which was personally and entirely written, dated and signed,
by the deceased and that all the dispositions therein, the dates, and the
On April 6, 1990, Evangeline Calugay, Josephine Salcedo and signatures in said will, were that of the deceased.
Eufemia Patigas, devisees and legatees of the holographic will of the
deceased Matilde Seo Vda. de Ramonal, filed with the Regional Trial Fiscal Rodolfo Waga testified that before he was appointed City Fiscal
Court, Misamis Oriental, Branch 18, a petition 3 for probate of the of Cagayan de Oro, he was a practicing lawyer, and handled all the
holographic will of the deceased, who died on January 16, 1990. pleadings and documents signed by the deceased in connection with
the proceedings of her late husband, as a result of which he is familiar
In the petition, respondents claimed that the deceased Matilde Seo with the handwriting of the latter. He testified that the signature
Vda. de Ramonal, was of sound and disposing mind when she executed appearing in the holographic will was similar to that of the deceased,
the will on August 30, 1978, that there was no fraud, undue influence, Matilde Seo Vda. de Ramonal, but he can not be sure.
and duress employed in the person of the testator, and will was written
voluntarily. The fifth witness presented was Mrs. Teresita Vedad, an employee of
the Department of Environment and Natural Resources, Region 10.
The assessed value of the decedent's property, including all real and She testified that she processed the application of the deceased for
personal property was about P400,000.00, at the time of her death.4 pasture permit and was familiar with the signature of the deceased,
since the signed documents in her presence, when the latter was
On June 28, 1990, Eugenia Ramonal Codoy and Manuel Ramonal filed applying for pasture permit.
an opposition5 to the petition for probate, alleging that the holographic Finally, Evangeline Calugay, one of the respondents, testified that she
will was a forgery and that the same is even illegible. This gives an had lived with the deceased since birth, and was in fact adopted by the
impression that a "third hand" of an interested party other than the "true latter. That after a long period of time she became familiar with the
hand" of Matilde Seo Vda. de Ramonal executed the holographic will. signature of the deceased. She testified that the signature appearing in
Petitioners argued that the repeated dates incorporated or appearing on the holographic will is the true and genuine signature of Matilde Seo
will after every disposition is out of the ordinary. If the deceased was Vda. de Ramonal.
the one who executed the will, and was not forced, the dates and the
signature should appear at the bottom after the dispositions, as The holographic will which was written in Visayan, is translated in
regularly done and not after every disposition. And assuming that the English as follows:
holographic will is in the handwriting of the deceased, it was procured
by undue and improper pressure and influence on the part of the Instruction
beneficiaries, or through fraud and trickery.1wphi1.nt August 30, 1978
1. My share at Cogon, Raminal Street, for Evangeline
Respondents presented six (6) witnesses and various documentary Calugay.
evidence. Petitioners instead of presenting their evidence, filed a (Sgd) Matilde Vda de Ramonal
demurrer6 to evidence, claiming that respondents failed to establish August 30, 1978
sufficient factual and legal basis for the probate of the holographic will 2. Josefina Salcedo must be given 1,500 square meters at
of the deceased Matilde Seo Vda. de Ramonal. Pinikan Street.
(Sgd) Matilde Vda de Ramonal
On November 26, 1990, the lower Court issued an order, the August 30, 1978
dispositive portion of which reads: 3. My jewelry's shall be divided among:
WHEREFORE, in view of the foregoing consideration, the 1. Eufemia Patigas
Demurrer to Evidence having being well taken, same is 2. Josefina Salcedo
granted, and the petition for probate of the document 3. Evangeline Calugay
(Exhibit "S") on the purported Holographic Will of the late (Sgd) Matilde Vda de Ramonal
Matilde Seo Vda. de Ramonal, is denied for insufficiency August 30, 1978
of evidence and lack of merits.7 4. I bequeath my one (1) hectare land at Mandumol, Indahag
to Evangeline R. Calugay
On December 12, 1990, respondents filed a notice of appeal, 8 and in (Sgd) Matilde Vda de Ramonal
support of their appeal, the respondents once again reiterated the August 30, 1978
testimony of the following witnesses, namely: (1) Augusto Neri; (2) 5. Give the 2,500 Square Meters at Sta. Cruz Ramonal
Generosa Senon; (3) Matilde Ramonal Binanay; (4) Teresita Vedad; Village in favor of Evangeline R. Calugay, Helen must
(5) Fiscal Rodolfo Waga; and (6) Evangeline Calugay. continue with the Sta. Cruz, once I am no longer around.
(Sgd) Matilde Vda de Ramonal
To have a clear understanding of the testimonies of the witnesses, we August 30, 1978
recite an account of their testimonies. 6. Bury me where my husband Justo is ever buried.
(Sgd) Matilde Vda de Ramonal
Augusto Neri, Clerk of Court, Court of First Instance of Misamis August 30, 1978
Oriental, where the special proceedings for the probate of the Gene and Manuel:
holographic will of the deceased was filed. He produced and identified Follow my instruction in order that I will rest peacefully.
the records of the case. The documents presented bear the signature of Mama
the deceased, Matilde Seo Vda. de Ramonal, for the purpose of laying Matilde Vda de Ramonal

61
According to the Court of Appeals, Evangeline Calugay, Matilde
On October 9, 1995, the Court of Appeals, rendered decision 9 ruling Ramonal Binanay and other witnesses definitely and in no uncertain
that the appeal was meritorious. Citing the decision in the case terms testified that the handwriting and signature in the holographic
of Azaola vs. Singson, 109 Phil. 102, penned by Mr. Justice J. B. L. will were those of the testator herself.
Reyes, a recognized authority in civil law, the Court of Appeals held:
. . . even if the genuineness of the holographic will were Thus, upon the unrebutted testimony of appellant Evangeline Calugay
contested, we are of the opinion that Article 811 of our and witness Matilde Ramonal Binanay, the Court of
present civil code can not be interpreted as to require the Appeals sustained the authenticity of the holographic will and the
compulsory presentation of three witnesses to identify the handwriting and signature therein, and allowed the will to probate.
handwriting of the testator, under penalty of having the
probate denied. Since no witness may have been present at Hence, this petition.
the execution of the holographic will, none being required
by law (art. 810, new civil code), it becomes obvious that the The petitioners raise the following issues:
existence of witnesses possessing the requisite qualifications (1) Whether or not the ruling of the case of Azaola
is a matter beyond the control of the proponent. For it is not vs. Singson, 109 Phil. 102, relied upon by the respondent
merely a question of finding and producing any three Court of Appeals, was applicable to the case.
witnesses; they must be witnesses "who know the (2) Whether or not the Court of Appeals erred in holding that
handwriting and signature of the testator" and who can private respondents had been able to present credible
declare (truthfully, of course, even if the law does not evidence to that the date, text, and signature on the
express) "that the will and the signature are in the holographic will written entirely in the hand of the testatrix.
handwriting of the testator." There may be no available (3) Whether or not the Court of Appeals erred in not
witness acquainted with the testator's hand; or even if so analyzing the signatures in the holographic will of Matilde
familiarized, the witness maybe unwilling to give a positive Seo Vda. de Ramonal.
opinion. Compliance with the rule of paragraph 1 of article
811 may thus become an impossibility. That is evidently the In this petition, the petitioners ask whether the provisions of Article
reason why the second paragraph of article 811 prescribes 811 of the Civil Code are permissive or mandatory. The article
that provides, as a requirement for the probate of a contested holographic
in the absence of any competent witness referred to in the will, that at least three witnesses explicitly declare that the signature in
preceding paragraph, and if the court deems it necessary, the will is the genuine signature of the testator.1wphi1.nt
expert testimony may be resorted to.
We are convinced, based on the language used, that Article 811 of the
As can be see, the law foresees, the possibility that no Civil Code is mandatory. The word "shall" connotes a mandatory
qualified witness ma be found (or what amounts to the same order. We have ruled that "shall" in a statute commonly denotes an
thing, that no competent witness may be willing to testify to imperative obligation and is inconsistent with the idea of discretion and
the authenticity of the will), and provides for resort to expert that the presumption is that the word "shall," when used in a statute is
evidence to supply the deficiency. mandatory.11

It may be true that the rule of this article (requiring that three Laws are enacted to achieve a goal intended and to guide against an
witnesses be presented if the will is contested and only one evil or mischief that aims to prevent. In the case at bar, the goal to
if no contest is had) was derived from the rule established achieve is to give effect to the wishes of the deceased and the evil to
for ordinary testaments (CF Cabang vs. Delfianado, 45 PHIL be prevented is the possibility that unscrupulous individuals who for
291; Tolentino v. Francisco, 57 PHIL 742). But it can not be their benefit will employ means to defeat the wishes of the testator.
ignored that the requirement can be considered mandatory
only in case of ordinary testaments, precisely because the So, we believe that the paramount consideration in the present petition
presence of at least three witnesses at the execution of is to determine the true intent of the deceased. An exhaustive and
ordinary wills is made by law essential to their validity (Art. objective consideration of the evidence is imperative to establish the
805). Where the will is holographic, no witness need be true intent of the testator.
present (art. 10), and the rule requiring production of three
witnesses must be deemed merely permissive if absurd It will be noted that not all the witnesses presented by the respondents
results are to be avoided. testified explicitly that they were familiar with the handwriting of
testator. In the case of Augusto Neri, clerk of court, Court of First
Again, under Art. 811, the resort to expert evidence is Instance, Misamis Oriental, he merely identified the record of Special
conditioned by the words "if the court deem it necessary", Proceedings No. 427 before said court. He was not presented to declare
which reveal that what the law deems essential is that the explicitly that the signature appearing in the holographic was that of
court should be convinced of the will's authenticity. Where the deceased.
the prescribed number of witnesses is produced and the court Generosa E. Senon, the election registrar of Cagayan de Oro City, was
is convinced by their testimony that the will is genuine, it presented to identify the signature of the deceased in the voter's
may consider it unnecessary to call for expert evidence. On affidavit, which was not even produced as it was no longer available.
the other hand, if no competent witness is available, or none
of those produced is convincing, the court may still, and in Matilde Ramonal Binanay, on the other hand, testified that:
fact it should resort to handwriting experts. The duty of the Q. And you said for eleven (11) years Matilde Vda de
court, in fine, is to exhaust all available lines of inquiry, for Ramonal resided with your parents at Pinikitan, Cagayan de
the state is as much interested as the proponent that the true Oro City. Would you tell the court what was your occupation
intention of the testator be carried into effect. or how did Matilde Vda de Ramonal keep herself busy that
time?
Paraphrasing Azaola vs. Singson, even if the genuineness of A. Collecting rentals.
the holographic will were contested, Article 811 of the civil Q. From where?
code cannot be interpreted as to require the compulsory A. From the land rentals and commercial buildings at
presentation of three witnesses to identify the handwriting of Pabayo-Gomez streets.12
the testator, under penalty of the having the probate denied. xxx xxx xxx
No witness need be present in the execution of the Q. Who sometime accompany her?
holographic will. And the rule requiring the production of A. I sometimes accompany her.
three witnesses is merely permissive. What the law deems Q. In collecting rentals does she issue receipts?
essential is that the court is convinced of the authenticity of A. Yes, sir.13
the will. Its duty is to exhaust all available lines of inquiry, xxx xxx xxx
for the state is as much interested in the proponent that the Q. Showing to you the receipt dated 23 October 1979, is
true intention of the testator be carried into effect. And this the one you are referring to as one of the receipts which
because the law leaves it to the trial court to decide if experts she issued to them?
are still needed, no unfavorable inference can be drawn from A. Yes, sir.
a party's failure to offer expert evidence, until and unless the Q. Now there is that signature of Matilde vda. De Ramonal,
court expresses dissatisfaction with the testimony of the lay whose signature is that Mrs. Binanay?
witnesses.10 A. Matilde vda. De Ramonal.

62
Q. Why do you say that is the signature of Matilde Vda. De A. Yes, sir.19
Ramonal? xxx xxx xxx
A. I am familiar with her signature. Q. Now, let us go to the third signature of Matilde Ramonal.
Q. Now, you tell the court Mrs. Binanay, whether you know Do you know that there are retracings in the word Vda.?
Matilde vda de Ramonal kept records of the accounts of her A. Yes, a little. The letter L is continuous.
tenants? Q. And also in Matilde the letter L is continued to letter D?
A. Yes, sir. A. Yes, sir.
Q. Why do you say so? Q. Again the third signature of Matilde Vda de Ramonal
A. Because we sometimes post a record of accounts in the letter L in Matilde is continued towards letter D.
behalf of Matilde Vda. De Ramonal. A. Yes, sir.
Q. How is this record of accounts made? How is this Q. And there is a retracing in the word Vda.?
reflected? A. Yes, sir.20
A. In handwritten.14 xxx xxx xxx
xxx xxx xxx Q. Now, that was 1979, remember one year after the alleged
Q. In addition to collection of rentals, posting records of holographic will. Now, you identified a document marked as
accounts of tenants and deed of sale which you said what Exhibit R. This is dated January 8, 1978 which is only about
else did you do to acquire familiarity of the signature of eight months from August 30, 1978. Do you notice that the
Matilde Vda De Ramonal? signature Matilde Vda de Ramonal is beautifully written and
A. Posting records. legible?
Q. Aside from that? A. Yes, sir the handwriting shows that she was very
A. Carrying letters. exhausted.
Q. Letters of whom? Q. You just say that she was very exhausted while that in
A. Matilde. 1978 she was healthy was not sickly and she was agile. Now,
Q. To whom? you said she was exhausted?
A. To her creditors.15 A. In writing.
xxx xxx xxx Q. How did you know that she was exhausted when you
Q. You testified that at time of her death she left a will. I were not present and you just tried to explain yourself out
am showing to you a document with its title "tugon" is this because of the apparent inconsistencies?
the document you are referring to? A. That was I think. (sic).
A. Yes, sir. Q. Now, you already observed this signature dated 1978,
Q. Showing to you this exhibit "S", there is that handwritten the same year as the alleged holographic will. In exhibit I,
"tugon", whose handwriting is this? you will notice that there is no retracing; there is no hesitancy
A. My Aunt. and the signature was written on a fluid movement. . . . And
Q. Why do you say this is the handwriting of your aunt? in fact, the name Eufemia R. Patigas here refers to one of the
A. Because I am familiar with her signature.16 petitioners?
A. Yes, sir.
What Ms. Binanay saw were pre-prepared receipts and letters of the Q. You will also notice Mrs. Binanay that it is not only with
deceased, which she either mailed or gave to her tenants. She did not the questioned signature appearing in the alleged
declare that she saw the deceased sign a document or write a note. holographic will marked as Exhibit X but in the handwriting
themselves, here you will notice the hesitancy and tremors,
Further, during the cross-examination, the counsel for petitioners do you notice that?
elicited the fact that the will was not found in the personal belongings A. Yes, sir.21
of the deceased but was in the possession of Ms. Binanay. She testified
that: Evangeline Calugay declared that the holographic will was written,
Q. Mrs. Binanay, when you were asked by counsel for the dated and signed in the handwriting of the testator. She testified that:
petitioners if the late Matilde Seno vda de Ramonal left a Q. You testified that you stayed with the house of the
will you said, yes? spouses Matilde and Justo Ramonal for the period of 22
A. Yes, sir. years. Could you tell the court the services if any which you
Q. Who was in possession of that will? rendered to Matilde Ramonal?
A. I. A. During my stay I used to go with her to the church, to
Q. Since when did you have the possession of the will? market and then to her transactions.
A. It was in my mother's possession. Q. What else? What services that you rendered?
Q. So, it was not in your possession? A. After my college days I assisted her in going to the bank,
A. Sorry, yes. paying taxes and to her lawyer.
Q. And when did you come into possession since as you Q. What was your purpose of going to her lawyer?
said this was originally in the possession of your mother? A. I used to be her personal driver.
A. 1985.17 Q. In the course of your stay for 22 years did you acquire
xxx xxx xxx familiarity of the handwriting of Matilde Vda de Ramonal?
Q. Now, Mrs. Binanay was there any particular reason why A. Yes, sir.
your mother left that will to you and therefore you have that Q. How come that you acquired familiarity?
in your possession? A. Because I lived with her since birth.22
A. It was not given to me by my mother, I took that in the xxx xxx xxx
aparador when she died. Q. Now, I am showing to you Exhibit S which is captioned
Q. After taking that document you kept it with you? "tugon" dated Agosto 30, 1978 there is a signature here
A. I presented it to the fiscal. below item No. 1, will you tell this court whose signature is
Q. For what purpose? this?
A. Just to seek advice. A. Yes, sir, that is her signature.
Q. Advice of what? Q. Why do you say that is her signature?
A. About the will.18 A. I am familiar with her signature.23

In her testimony it was also evident that Ms. Binanay kept the fact So, the only reason that Evangeline can give as to why she was familiar
about the will from petitioners, the legally adopted children of the with the handwriting of the deceased was because she lived with her
deceased. Such actions put in issue her motive of keeping the will a since birth. She never declared that she saw the deceased write a note
secret to petitioners and revealing it only after the death of Matilde or sign a document.
Seo Vda. de Ramonal.
The former lawyer of the deceased, Fiscal Waga, testified that:
In the testimony of Ms. Binanay, the following were established: Q. Do you know Matilde Vda de Ramonal?
Q. Now, in 1978 Matilde Seno Vda de Ramonal was not A. Yes, sir I know her because she is my godmother the
yet a sickly person is that correct? husband is my godfather. Actually I am related to the
A. Yes, sir. husband by consanguinity.
Q. She was up and about and was still uprightly and she Q. Can you tell the name of the husband?
could walk agilely and she could go to her building to collect A. The late husband is Justo Ramonal.24
rentals, is that correct? xxx xxx xxx

63
Q. Can you tell this court whether the spouses Justo However, we cannot eliminate the possibility of a false document
Ramonal and Matilde Ramonal have legitimate children? being adjudged as the will of the testator, which is why if the
A. As far as I know they have no legitimate children.25 holographic will is contested, that law requires three witnesses to
xxx xxx xxx declare that the will was in the handwriting of the deceased.
Q. You said after becoming a lawyer you practice your
profession? Where? The will was found not in the personal belongings of the deceased but
A. Here in Cagayan de Oro City. with one of the respondents, who kept it even before the death of the
Q. Do you have services rendered with the deceased deceased. In the testimony of Ms. Binanay, she revealed that the will
Matilde vda de Ramonal? was in her possession as early as 1985, or five years before the death
A. I assisted her in terminating the partition, of properties. of the deceased.
Q. When you said assisted, you acted as her counsel? Any
sort of counsel as in what case is that, Fiscal? There was no opportunity for an expert to compare the signature and
A. It is about the project partition to terminate the property, the handwriting of the deceased with other documents signed and
which was under the court before.26 executed by her during her lifetime. The only chance at comparison
xxx xxx xxx was during the cross-examination of Ms. Binanay when the lawyer of
Q. Appearing in special proceeding no. 427 is the amended petitioners asked Ms. Binanay to compare the documents which
inventory which is marked as exhibit N of the estate of Justo contained the signature of the deceased with that of the holographic
Ramonal and there appears a signature over the type written will and she is not a handwriting expert. Even the former lawyer of the
word Matilde vda de Ramonal, whose signature is this? deceased expressed doubts as to the authenticity of the signature in the
A. That is the signature of Matilde Vda de Ramonal. holographic will.
Q. Also in exhibit n-3, whose signature is this?
A. This one here that is the signature of Mrs. Matilde vda A visual examination of the holographic will convince us that the
de Ramonal.27 strokes are different when compared with other documents written by
xxx xxx xxx the testator. The signature of the testator in some of the disposition is
Q. Aside from attending as counsel in that Special not readable. There were uneven strokes, retracing and erasures on the
Proceeding Case No. 427 what were the other assistance will.
wherein you were rendering professional service to the
deceased Matilde Vda de Ramonal? Comparing the signature in the holographic will dated August 30,
A. I can not remember if I have assisted her in other matters 1978,33 and the signatures in several documents such as the application
but if there are documents to show that I have assisted then letter for pasture permit dated December 30, 1980,34 and a letter dated
I can recall.28 June 16, 1978,35 the strokes are different. In the letters, there are
xxx xxx xxx continuous flows of the strokes, evidencing that there is no hesitation
Q. Now, I am showing to you exhibit S which is titled in writing unlike that of the holographic will. We, therefore, cannot be
"tugon", kindly go over this document, Fiscal Waga and tell certain that ruling holographic will was in the handwriting by the
the court whether you are familiar with the handwriting deceased.
contained in that document marked as exhibit "S"?
A. I am not familiar with the handwriting. IN VIEW WHEREOF, the decision appealed from is SET ASIDE. The
Q. This one, Matilde Vda de Ramonal, whose signature is records are ordered remanded to the court of origin with instructions
this? to allow petitioners to adduce evidence in support of their opposition
A. I think this signature here it seems to be the signature of to the probate of the holographic will of the deceased Matilde Seo
Mrs. Matilde vda de Ramonal. vda. de Ramonal. No costs. SO ORDERED.
Q. Now, in item No. 2 there is that signature here of Matilde
Vda de Ramonal, can you tell the court whose signature is G.R. No. L-20234 December 23, 1964
this?
A. Well, that is similar to that signature appearing in the PAULA DE LA CERNA, ET AL., petitioners, vs.
project of partition. MANUELA REBACA POTOT, ET AL., and THE
Q. Also in item no. 3 there is that signature Matilde Vda de HONORABLE COURT OF APPEALS, respondents.
Ramonal, can you tell the court whose signature is that?
A. As I said, this signature also seems to be the signature REYES, J.B.L., J.:
of Matilde vda de Ramonal.
Q. Why do you say that? Appeal by Paula de la Cerna and others from a decision of the Court
A. Because there is a similarity in the way it is being of Appeals, Sixth Division (C.A.-G.R. No. 23763-R) reversing that of
written. the Court of First Instance of Cebu (Civ. Case No. R-3819) and
Q. How about this signature in item no. 4, can you tell the ordering the dismissal of an action for partition.
court whose signature is this?
A. The same is true with the signature in item no. 4. It seems The factual background appears in the following portion of the
that they are similar.29 decision of the Court of Appeals (Petition, Annex A, pp. 2-4):
xxx xxx xxx It appears that on May 9, 1939, the spouses, Bernabe de la
Q. Mr. Prosecutor, I heard you when you said that the Serna and Gervasia Rebaca, executed a joint last will and
signature of Matilde Vda de Ramonal Appearing in exhibit testament in the local dialect whereby they willed that "our
S seems to be the signature of Matilde vda de Ramonal? two parcels of land acquired during our marriage together
A. Yes, it is similar to the project of partition. with all improvements thereon shall be given to Manuela
Q. So you are not definite that this is the signature of Rebaca, our niece, whom we have nurtured since childhood,
Matilde vda de Ramonal. You are merely supposing that it because God did not give us any child in our union, Manuela
seems to be her signature because it is similar to the signature Rebaca being married to Nicolas Potot", and that "while each
of the project of partition which you have made? of the testators is yet living, he or she will continue to enjoy
A. That is true.30 the fruits of the two lands aforementioned", the said two
parcels of land being covered by Tax No. 4676 and Tax No.
From the testimonies of these witnesses, the Court of Appeals allowed 6677, both situated in sitio Bucao, barrio Lugo, municipality
the will to probate and disregard the requirement of three witnesses in of Borbon, province of Cebu. Bernabe dela Serna died on
case of contested holographic will, citing the decision in Azaola August 30, 1939, and the aforesaid will was submitted to
vs. Singson,31ruling that the requirement is merely directory and not probate by said Gervasia and Manuela before the Court of
mandatory. First Instance of Cebu which, after due publication as
required by law and there being no opposition, heard the
In the case of Ajero vs. Court of Appeals,32 we said that "the object of evidence, and, by Order of October 31, 1939; in Special
the solemnities surrounding the execution of wills is to close the door Proceedings No. 499, "declara legalizado el documento
against bad faith and fraud, to avoid substitution of wills and Exhibit A como el testamento y ultima voluntad del finado
testaments and to guaranty their truth and authenticity. Therefore, the Bernabe de la Serna con derecho por parte du su viuda
laws on this subject should be interpreted in such a way as to attain superstite Gervasia Rebaca y otra testadora al propio tiempo
these primordial ends. But on the other hand, also one must not lose segun el Exhibit A de gozar de los frutos de los terranos
sight of the fact that it is not the object of the law to restrain and curtail descritos en dicho documents; y habido consideracion de la
the exercise of the right to make a will. cuantia de dichos bienes, se decreta la distribucion sumaria
de los mismos en favor de la logataria universal Manuela
64
Rebaca de Potot previa prestacion por parte de la misma de the participation of the deceased Gervasia Rebaca in the properties in
una fianza en la sum de P500.00 para responder de question, for the reasons extensively discussed in our decision
cualesquiera reclamaciones que se presentare contra los in Bilbao vs. Bilbao, 87 Phil. 144, that explained the previous holding
bienes del finado Bernabe de la Serna de los aos desde esta in Macrohon vs. Saavedra, 51 Phil. 267.
fecha" (Act Esp. 499, Testamentaria Finado Bernabe de la
Serna) Upon the death of Gervasia Rebaca on October 14, Therefore, the undivided interest of Gervasia Rebaca should pass upon
1952, another petition for the probate of the same will her death to her heirs intestate, and not exclusively to the testamentary
insofar as Gervasia was concerned was filed on November heir, unless some other valid will in her favor is shown to exist, or
6, 1952, being Special Proceedings No. 1016-R of the same unless she be the only heir intestate of said Gervasia.
Court of First Instance of Cebu, but for failure of the
petitioner, Manuela R. Potot and her attorney, Manuel Potot It is unnecessary to emphasize that the fact that joint wills should be in
to appear, for the hearing of said petition, the case was common usage could not make them valid when our Civil Codes
dismissed on March 30, 1954 Spec. Proc. No. 1016-R, In the consistently invalidated them, because laws are only repealed by other
matter of the Probate of the Will of Gervasia Rebaca). subsequent laws, and no usage to the contrary may prevail against their
observance (Art. 5, Civ. Code of 1889; Art. 7, Civil Code of the
The Court of First Instance ordered the petition heard and declared the Philippines of 1950).
testament null and void, for being executed contrary to the prohibition
of joint wills in the Civil Code (Art. 669, Civil Code of 1889 and Art. WITH THE FOREGOING MODIFICATION, the judgment of the
818, Civil Code of the Philippines); but on appeal by the testamentary Court of Appeals in CA-G.R. No. 23763-R is affirmed. No Costs.
heir, the Court of Appeals reversed, on the ground that the decree of
probate in 1939 was issued by a court of probate jurisdiction and G.R. No. L-37453 May 25, 1979
conclusive on the due execution of the testament. Further, the Court of
Appeals declared that: RIZALINA GABRIEL GONZALES, petitioner, vs.
... . It is true the law (Art. 669, old Civil Code; Art. 818, new HONORABLE COURT OF APPEALS and LUTGARDA
Civil Code). prohibits the making of a will jointly by two or SANTIAGO, respondents.
more persons either for their reciprocal benefit or for the
benefit of a third person. GUERRERO, J.:
However, this form of will has long been sanctioned by use, This is a petition for review of the decision of the Court of Appeals,
and the same has continued to be used; and when, as in the First Division, 1 promulgated on May 4, 1973 in CA G.R. No. 36523-
present case, one such joint last will and testament has been R which reversed the decision of the Court of First Instance of Rizal
admitted to probate by final order of a Court of competent dated December 15, 1964 and allowed the probate of the last will and
jurisdiction, there seems to be no alternative except to give testament of the deceased Isabel Gabriel. *
effect to the provisions thereof that are not contrary to law,
as was done in the case of Macrohon vs. Saavedra, 51 Phil. It appears that on June 24, 1961, herein private respondent Lutgarda
267, wherein our Supreme Court gave effect to the Santiago filed a petition with the Court of First Instance of Rizal
provisions of the joint will therein mentioned, saying, docketed as Special Proceedings No. 3617, for the probate of a will
"assuming that the joint will in question is valid." alleged to have been executed by the deceased Isabel Gabriel and
designating therein petitioner as the principal beneficiary and
Whence this appeal by the heirs intestate of the deceased husband, executrix.
Bernabe de la Cerna.
There is no dispute in the records that the late Isabel Andres Gabriel
The appealed decision correctly held that the final decree of probate, died as a widow and without issue in the municipality of Navotas,
entered in 1939 by the Court of First Instance of Cebu (when the province of Rizal her place of residence, on June 7, 1961 at the age of
testator, Bernabe de la Cerna, died), has conclusive effect as to his last eighty-five (85), having been born in 1876. It is likewise not
will and testament despite the fact that even then the Civil Code controverted that herein private respondent Lutgarda Santiago and
already decreed the invalidity of joint wills, whether in favor of the petitioner Rizalina Gabriel Gonzales are nieces of the deceased, and
joint testators, reciprocally, or in favor of a third party (Art. 669, old that private respondent, with her husband and children, lived with the
Civil Code). The error thus committed by the probate court was an deceased at the latters residence prior an- d up to the time of her death.
error of law, that should have been corrected by appeal, but which did
not affect the jurisdiction of the probate court, nor the conclusive effect The will submitted for probate, Exhibit "F", which is typewritten and
of its final decision, however erroneous. A final judgment rendered on in Tagalog, appears to have been executed in Manila on the 15th day
a petition for the probate of a will is binding upon the whole world of April, 1961, or barely two (2) months prior to the death of Isabel
(Manalo vs. Paredes, 47 Phil. 938; In re Estates of Johnson, 39 Phil. Gabriel. It consists of five (5) pages, including the pages whereon the
156); and public policy and sound practice demand that at the risk of attestation clause and the acknowledgment of the notary public were
occasional errors judgment of courts should become final at some written. The signatures of the deceased Isabel Gabriel appear at the end
definite date fixed by law. Interest rei publicae ut finis set litium (Dy of the will on page four and at the left margin of all the pages. The
Cay vs. Crossfield, 38 Phil, 521, and other cases cited in 2 Moran, attestation clause, which is found on page four, reads as follows:
Comments on the Rules of Court (1963 Ed., p. 322).
PATUNAY NG MGA SAKSI
Petitioners, as heirs and successors of the late Bernabe de la Cerna, are Kaming mga nakalagdang mga saksi o testigo na ang aming
concluded by the 1939 decree admitting his will to probate. The mga tinitirahan ay nakasulat sa gawing kanan at kahilira ng
contention that being void the will cannot be validated, overlooks that aming mga pangalan sa ibaba nito, ay pagpapatutuo na
the ultimate decision on Whether an act is valid or void rests with the ipinakilala ipinaalam at ipinahayag sa amin ni Isabel Gabriel
courts, and here they have spoken with finality when the will was na ang kasulatang ito na binubuo ng Limang Dahon (Five
probated in 1939. On this court, the dismissal of their action for Pages) pati na ang dahong ito, na siya niyang
partition was correct. TESTAMENTO AT HULING HABILIN, ngayong ika 15
ng Abril, 1961, ay nilagdaan ng nasabing testadora na si
But the Court of Appeals should have taken into account also, to avoid Isabel Gabriel ang nasabing testamento sa ibaba o ilalim ng
future misunderstanding, that the probate decree in 1989 could only kasulatan na nasa ika apat na dahon (page four) at nasa itaas
affect the share of the deceased husband, Bernabe de la Cerna. It could ng patunay naming ito, at sa kaliwang panig ng lahat at
not include the disposition of the share of the wife, Gervasia Rebaca, bawat dahon (and on the left hand margin of each and every
who was then still alive, and over whose interest in the conjugal page), sa harap ng lahat at bawat isa sa amin, at kami namang
properties the probate court acquired no jurisdiction, precisely because mga saksi ay lumagda sa harap ng nasabing testadora, at sa
her estate could not then be in issue. Be it remembered that prior to the harap ng lahat at bawat isa sa amin, sa ilalim ng patunay ng
new Civil Code, a will could not be probated during the testator's mga saksi at sa kaliwang panig ng lahat at bawa't dahon ng
lifetime. testamentong ito.
It follows that the validity of the joint will, in so far as the estate of the At the bottom thereof, under the heading "Pangalan", are written the
wife was concerned, must be, on her death, reexamined and signatures of Matilde D. Orobia, Celso D. Gimpaya and Maria R.
adjudicated de novo, since a joint will is considered a separate will of Gimpaya, and opposite the same, under the heading "Tirahan", are
each testator. Thus regarded, the holding of the court of First Instance their respective places of residence, 961 Highway 54, Philamlife, for
of Cebu that the joint will is one prohibited by law was correct as to Miss Orobia, and 12 Dagala St., Navotas, Rizal, for the two Gimpayas.
65
Their signatures also appear on the left margin of all the other pages. because the same was signed on several occasions, that the
The WW is paged by typewritten words as follows: "Unang Dahon" testatrix did not sign the will in the presence of all the
and underneath "(Page One)", "Ikalawang Dahon" and underneath instrumental witnesses did not sign the will in the presence
"(Page Two)", etc., appearing at the top of each page. of each other.

The will itself provides that the testatrix desired to be buried in the The resolution of the factual issue raised in the motion for
Catholic Cemetery of Navotas, Rizal in accordance with the rites of reconsideration hinges on the appreciation of the evidence.
the Roman Catholic Church, all expenses to be paid from her estate; We have carefully re-examined the oral and documentary
that all her obligations, if any, be paid; that legacies in specified evidence of record, There is no reason to alter the findings
amounts be given to her sister, Praxides Gabriel Vda. de Santiago, her of fact in the decision of this Court sought to be set aside. 7
brother Santiago Gabriel, and her nephews and nieces, Benjamin,
Salud, Rizalina (herein petitioner), Victoria, Ester, Andres, all In her petition before this Court, oppositor Rizalina Gabriel Gonzales
surnamed Gabriel, and Evangeline, Rudyardo Rosa, Andrea, Marcial, contends that respondent Court abused its discretion and/or acted
Numancia, Verena an surnamed Santiago. To herein private without or in excess of its jurisdiction in reverssing the findings of fact
respondent Lutgarda Santiago, who was described in the will by the and conclusions of the trial court. The Court, after deliberating on the
testatrix as "aking mahal na pamangkin na aking pinalaki, inalagaan at petition but without giving due course resolved, in the Resolution
minahal na katulad ng isang tunay na anak" and named as universal dated Oct. 11, 1973 to require the respondents to comment thereon,
heir and executor, were bequeathed all properties and estate, real or which comment was filed on Nov. 14, 1973. Upon consideration of the
personal already acquired, or to be acquired, in her testatrix name, after allegations, the issues raised and the arguments adduced in the petition,
satisfying the expenses, debts and legacies as aforementioned. as well as the Comment 8 of private respondent thereon, We denied the
petition by Resolution on November 26, 1973, 9 the question raised
The petition was opposed by Rizalina Gabriel Gonzales, herein being factual and for insufficient showing that the findings of fact by
petitioner, assailing the document purporting to be the will of the respondent Court were unsupported by substantial evidence.
deceased on the following grounds:
1. that the same is not genuine; and in the alternative Subsequently, or on December 17, 1973, petitioner Rim Gabriel Goes
2. that the same was not executed and attested as required fried a Motion for Reconsideration 10which private respondent
by law; answered by way of her Comment or Opposition 11 filed on January
3. that, at the time of the alleged execution of the 15, 1974. A Reply and Rejoinder to Reply followed. Finally, on March
purported wilt the decedent lacked testamentary 27, 1974, We resolved to give due course to the petition.
capacity due to old age and sickness; and in the second
alternative The petitioner in her brief makes the following assignment of errors:
4. That the purported WW was procured through undue
and improper pressure and influence on the part of the I. The respondent Court of Appeals erred in holding that the document,
principal beneficiary, and/or of some other person for Exhibit "F" was executed and attested as required by law when there
her benefit. was absolutely no proof that the three instrumental witnesses were
credible witness
Lutgarda Santiago filed her Answer to the Opposition on February 1,
1962. After trial, the court a quo rendered judgment, the summary and II. The Court of Appeals erred in reversing the finding of the lower
dispositive portions of which read: court that the preparation and execution of the win Exhibit "F", was
Passing in summary upon the grounds advanced by the unexpected and coincidental.
oppositor, this Court finds:
1. That there is no iota of evidence to support the contentio III. The Court of Appeals erred in finding that Atty, Paraiso was not
that the purported will of the deceased was procured previously furnished with the names and residence certificates of the
through undue and improper pressure and influence on witnesses as to enable him to type such data into the document Exhibit
the part of the petitioner, or of some other person for "F".
her benefit;
2. That there is insufficient evidence to sustain the IV. The Court of Appeals erred in holding that the fact that the three
contention that at the time of the alleged execution of typewritten lines under the typewritten words "Pangalan" and
the purported will, the deceased lacked testamentary "Tinitirahan" were left blank shows beyond cavil that the three
capacity due to old age and sickness; attesting witnesses were all present in the same occasion.
3. That sufficient and abundant evidence warrants
conclusively the fact that the purported will of the V. The Court of Appeals erred in reversing the trial court's finding that
deceased was not executed and attested as required by it was incredible that Isabel Gabriel could have dictated the wilt
law; Exhibit "F , without any note or document, to Atty. Paraiso.
4. That the evidence is likewise conclusive that the
document presented for probate, Exhibit 'F' is not the VI. The Court of Appeals erred in reversing the finding of the trial
purported win allegedly dictated by the deceased, court that Matilde Orobia was not physically present when the Will
executed and signed by her, and attested by her three Exhibit "F" was allegedly signed on April 15, 1961 by the deceased
attesting witnesses on April 15, 1961. Isabel Gabriel and the other witnesses Celso Gimpaya and Maria
WHEREFORE, Exhibit "F", the document presented for Gimpaya.
probate as the last wig and testament of the deceased Isabel
Gabriel is here by DISALLOWED. 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
From this judgment of disallowance, Lutgarda Santiago appealed to improperly executed.
respondent Court, hence, the only issue decided on appeal was whether
or not the will in question was executed and attested as required by VIII. The Court of Appeals erred in holding that the grave
law. The Court of Appeals, upon consideration of the evidence contradictions, evasions, and misrepresentations of witnesses
adduced by both parties, rendered the decision now under review, (subscribing and notary) presented by the petitioner had been
holding that the will in question was signed and executed by the explained away, and that the trial court erred in rejecting said
deceased Isabel Gabriel on April 15, 1961 in the presence of the three testimonies.
attesting witnesses, Matilde Orobia, Celso Gimpaya and Maria
Gimpaya, signing and witnessing the document in the presence of the IX. The Court of Appeals acted in excess of its appellate jurisdiction
deceased and of each other as required by law, hence allow ed probate. 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.
Oppositor Rizalina Gabriel Gonzales moved for reconsideration 3 of
the aforesaid decision and such motion was opposed4 by petitioner- X. The Court of Appeals erred in reversing the decision of the trial
appellant Lutgarda Santiago. Thereafter. parties submitted their court and admitting to probate Exhibit "F", the alleged last will and
respective Memoranda, 5 and on August 28, 1973, respondent Court, testament of the deceased Isabel Gabriel.
Former Special First Division, by Resolution 6 denied the motion for
reconsideration stating that: It will be noted from the above assignments of errors that the same are
The oppositor-appellee contends that the preponderance of substantially factual in character and content. Hence, at the very outset,
evidence shows that the supposed last wig and testament of We must again state the oft-repeated and well-established rule that in
Isabel Gabriel was not executed in accordance with law this jurisdiction, the factual findings of the Court of Appeals are not

66
reviewable, the same being binding and conclusive on this Court. This proved otherwise, as well as the fact that he is not blind, deaf or dumb
rule has been stated and reiterated in a long line of cases enumerated and that he is able to read and write to the satisfaction of the Court, and
in Chan vs. CA (L-27488, June 30, 1970, 33 SCRA 737, that he has none of the disqualifications under Article 821 of the Civil
743) 12 and Tapas vs. CA (L-22202, February 27; 1976, 69 SCRA Code. We reject petitioner's contention that it must first be established
393), 13 and in the more recent cases of Baptisia vs. Carillo and in the record the good standing of the witness in the community, his
CA (L32192, July 30, 1976, 72 SCRA 214, 217) and Vda. de Catindig reputation for trustworthiness and reliableness, his honesty and
vs. Heirs of Catalina Roque (L-25777, November 26, 1976, 74 SCRA uprightness, because such attributes are presumed of the witness unless
83, 88). In the case of Chan vs. CA, this Court said: the contrary is proved otherwise by the opposing party.
... from Guico v. Mayuga, a 1936 decision, the opinion being
penned by the then Justice Recto, it has been well-settled that We also reject as without merit petitioner's contention that the term
the jurisdiction of tills Court in cases brought to us from the "credible" as used in the Civil Code should be given the same meaning
Court of Appeals is limited to reviewing and revising the it has under the Naturalization Law where the law is mandatory that
errors of law imputed to it, its findings of fact being the petition for naturalization must be supported by two character
conclusive. More specifically, in a decision exactly a month witnesses who must prove their good standing in the community,
later, this Court, speaking through the then Justice Laurel, it reputation for trustworthiness and reliableness, their honesty and
was held that the same principle is applicable, even if the uprightness. The two witnesses in a petition for naturalization are
Court of Appeals was in disagreement with the lower court character witnesses in that being citizens of the Philippines, they
as to the weight of the evidence with a consequent reversal personally know the petitioner to be a resident of the Philippines for
of its findings of fact ... 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
Stated otherwise, findings of facts by the Court of Appeals, when the qualifications necessary to become a citizen of the Philippines and
supported by substantive evidence are not reviewable on appeal by is not in any way disqualified under the provisions of the
certiorari. Said findings of the appellate court are final and cannot be Naturalization Law (Section 7, Commonwealth Act No. 473 as
disturbed by Us particularly because its premises are borne out by the amended).
record or based upon substantial evidence and what is more, when such
findings are correct. Assignments of errors involving factual issues In probate proceedings, the instrumental witnesses are not character
cannot be ventilated in a review of the decision of the Court of Appeals witnesses for they merely attest the execution of a will or testament
because only legal questions may be raised. The Supreme Court is not and affirm the formalities attendant to said execution. And We agree
at liberty to alter or modify the facts as set forth in the decision of the with the respondent that the rulings laid down in the cases cited by
Court of Appeals sought to be reversed. Where the findings of the petitioner concerning character witnesses in naturalization
Court of Appeals are contrary to those of the trial court, a minute proceedings are not applicable to instrumental witnesses to wills
scrutiny by the Supreme Court is in order, and resort to duly-proven executed under the Civil Code of the Philippines.
evidence becomes necessary. The general rule We have thus stated
above is not without some recognized exceptions. In the case at bar, the finding that each and everyone of the three
instrumental witnesses, namely, Matilde Orobia, Celso Gimpaya and
Having laid down the above legal precepts as Our foundation, We now Maria Gimpaya, are competent and credible is satisfactorily supported
proceed to consider petitioner's assignments of errors. by the evidence as found by the respondent Court of Appeals, which
findings of fact this Tribunal is bound to accept and rely upon.
Petitioner, in her first assignment, contends that the respondent Court Moreover, petitioner has not pointed to any disqualification of any of
of Appeals erred in holding that the document, Exhibit "F", was the said witnesses, much less has it been shown that anyone of them is
executed and attested as required by law when there was absolutely no below 18 years of age, of unsound mind, deaf or dumb, or cannot read
proof that the three instrumental witnesses were credible witnesses. or write.
She argues that the require. ment in Article 806, Civil Code, that the
witnesses must be credible is an absolute requirement which must be It is true that under Article 805 of the New Civil Code, every will, other
complied with before an alleged last will and testament may be than a holographic will, must be subscribed at the end thereof by the
admitted to probate and that to be a credible witness, there must be testator himself or by the testator's name written by some other person
evidence on record that the witness has a good standing in his in his presence, and by his express direction, and attested and
community, or that he is honest and upright, or reputed to be subscribed by three or more credible witnesses in the presence of the
trustworthy and reliable. According to petitioner, unless the testator and of one another, While the petitioner submits that Article
qualifications of the witness are first established, his testimony may 820 and 821 of the New Civil Code speak of the competency of a
not be favorably considered. Petitioner contends that the term witness due to his qualifications under the first Article and none of the
"credible" is not synonymous with "competent" for a witness may be disqualifications under the second Article, whereas Article 805
competent under Article 820 and 821 of the Civil Code and still not be requires the attestation of three or more credible witnesses, petitioner
credible as required by Article 805 of the same Code. It is further urged concludes that the term credible requires something more than just
that the term "credible" as used in the Civil Code should receive the being competent and, therefore, a witness in addition to
same settled and well- known meaning it has under the Naturalization being competent under Articles 820 and 821 must also be a credible
Law, the latter being a kindred legislation with the Civil Code witness under Article 805.
provisions on wigs with respect to the qualifications of witnesses.
Petitioner cites American authorities that competency and credibility
We find no merit to petitioner's first assignment of error. Article 820 of a witness are not synonymous terms and one may be a competent
of the Civil Code provides the qualifications of a witness to the witness and yet not a credible one. She exacerbates that there is no
execution of wills while Article 821 sets forth the disqualification from evidence on record to show that the instrumental witnesses are credible
being a witness to a win. These Articles state: in themselves, that is, that they are of good standing in the community
Art. 820. Any person of sound mind and of the age of since one was a family driver by profession and the second the wife of
eighteen years or more, and not blind, deaf or dumb, and able the driver, a housekeeper. It is true that Celso Gimpaya was the driver
to read and write, may be a witness to the execution of a will of the testatrix and his wife Maria Gimpaya, merely a housekeeper,
mentioned in article 806 of this Code. " and that Matilde Orobia was a piano teacher to a grandchild of the
testatrix But the relation of employer and employee much less the
Art. 821. The following are disqualified from being humble or financial position of a person do not disqualify him to be a
witnesses to a will: competent testamentary witness. (Molo Pekson and Perez Nable vs.
(1) Any person not domiciled in the Philippines, Tanchuco, et al., 100 Phil. 344; Testate Estate of Raymundo, Off. Gaz.,
(2) Those who have been convicted of falsification of March 18,1941, p. 788).
a document, perjury or false testimony.
Private respondent maintains that the qualifications of the three or
Under the law, there is no mandatory requirement that the witness more credible witnesses mentioned in Article 805 of the Civil Code are
testify initially or at any time during the trial as to his good standing in those mentioned in Article 820 of the same Code, this being obvious
the community, his reputation for trustworthythiness and reliableness, from that portion of Article 820 which says "may be Q witness to the
his honesty and uprightness in order that his testimony may be believed execution of a will mentioned in Article 805 of this Code," and cites
and accepted by the trial court. It is enough that the qualifications authorities that the word "credible" insofar as witnesses to a will are
enumerated in Article 820 of the Civil Code are complied with, such concerned simply means " competent." Thus, in the case of Suntay vs.
that the soundness of his mind can be shown by or deduced from his Suntay, 95 Phil. 500, the Supreme Court held that "Granting that a will
answers to the questions propounded to him, that his age (18 years or was duly executed and that it was in existence at the time of, and not
more) is shown from his appearance, testimony , or competently revoked before, the death of the testator, still the provisions of the lost

67
wig must be clearly and distinctly proved by at least two credible of the witnesses as to enable him to type such data into the document
witnesses. 'Credible witnesses' mean competent witnesses and not Exhibit "F", in holding that the fact that the three typewritten lines
those who testify to facts from or upon hearsay. " under the typewritten words "pangalan" and "tinitirahan" were left
blank shows beyond cavil that the three attesting witnesses were all
In Molo Pekson and Perez Nable vs. Tanchuco, et al., 100 Phil. 344, present in the same occasion, in holding credible that Isabel Gabriel
the Supreme Court held that "Section 620 of the same Code of Civil could have dictated the will without note or document to Atty. Paraiso,
Procedure provides that any person of sound mind, and of the age of in holding that Matilde Orobia was physically present when the will
eighteen years or more, and not blind, deaf, or dumb and able to read was signed on April 15, 1961 by the deceased Isabel Gabriel and the
and write, may be a witness to the execution of a will. This same other witnesses Celso Gimpaya and Maria Gimpaya, in holding that
provision is reproduced in our New Civil Code of 1950, under Art. the trial court gave undue importance to the picture takings as proof
820. The relation of employer and employee, or being a relative to the that the will was improperly executed, and in holding that the grave
beneficiary in a win, does not disqualify one to be a witness to a will. contradictions, evasions and misrepresentations of the witnesses
The main qualification of a witness in the attestation of wills, if other (subscribing and notary) presented by the petitioner had been
qualifications as to age, mental capacity and literacy are present, is that explained away.
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 Since the above errors are factual We must repeat what We have
few of which we may cite: previously laid down that the findings of fact of the appellate court are
A 'credible witness is one who is not is not to testify by binding and controlling which We cannot review, subject to certain
mental incapacity, crime, or other cause. Historical Soc of exceptions which We win consider and discuss hereinafter. We are
Dauphin County vs. Kelker 74 A. 619, 226 Pix 16, 134 Am. convinced that the appellate court's findings are sufficiently justified
St. Rep. 1010. (Words and Phrases, Vol. 10, p. 340). and supported by the evidence on record. Thus, the alleged
unnaturalness characterizing the trip of the testatrix to the office of
As construed by the common law, a 'credible witness' to a Atty. Paraiso and bringing all the witnesses without previous
will means a 'competent witness.' Appeal of Clark, 95 A. appointment for the preparation and execution of the win and that it
517, 114 Me. 105, Ann. Cas. 1917A, 837. (lbid, p. 341). was coincidental that Atty. Paraiso was available at the moment
impugns the finding of the Court of Appeals that although Atty.
Expression 'credible witness' in relation to attestation of wins Paraiso admitted the visit of Isabel Gabriel and of her companions to
means 'competent witness that is, one competent under the his office on April 15, 1961 was unexpected as there was no prior
law to testify to fact of execution of will. Vernon's Ann. Civ appointment with him, but he explained that he was available for any
St. art. 8283. Moos vs. First State Bank of Uvalde, Tex . Civ. business transaction on that day and that Isabel Gabriel had earlier
App. 60 S.W. 2nd 888, 889. (Ibid, p. 342) 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
The term 'credible', used in the statute of wills requiring that not only informed on the morning of the day that he witnessed the will
a will shall be attested by two credible witnesses means but that it was the third time when Isabel Gabriel told him that he was
competent; witnesses who, at the time of attesting the will, going to witness the making of her will, as well as the testimony of
are legally competent to testify, in a court of justice, to the Maria Gimpaya that she was called by her husband Celso Gimpaya to
facts attested by subscribing the will, the competency being proceed to Isabel Gabriel's house which was nearby and from said
determined as of the date of the execution of the will and not house, they left in a car to the lawyer's office, which testimonies are
of the timr it is offered for probate, Smith vs. Goodell 101 recited in the respondent Court's decision.
N.E. 255, 256, 258 111. 145. (Ibid.)
The respondent Court further found the following facts: that Celso
Credible witnesses as used in the statute relating to wills, Gimpaya and his wife Maria Gimpaya obtained residence certificates
means competent witnesses that is, such persons as are a few days before Exhibit "F" was executed. Celso Gimpaya's
not legally disqualified from testifying in courts of justice, residence certificate No. A-5114942 was issued at Navotas, Rizal on
by reason of mental incapacity, interest, or the commission April 13, 1961 while Maria Gimpaya's residence certificate No. A-
of crimes, or other cause excluding them from testifying 5114974 was issued also at Navotas, Rizal on April 14, 1961. The
generally, or rendering them incompetent in respect of the respondent Court correctly observed that there was nothing surprising
particular subject matter or in the particular suit. Hill vs. in these facts and that the securing of these residence certificates two
Chicago Title & Trust co 152 N.E. 545, 546, 322 111. 42. days and one day, respectively, before the execution of the will on
April 15, 1961, far from showing an amazing coincidence, reveals that
In the strict sense, the competency of a person to be an instrumental the spouses were earlier notified that they would be witnesses to the
witness to a will is determined by the statute, that is Art. 820 and 821, execution of Isabel Gabriel's will.
Civil Code, whereas his credibility depends On the appreciation of his
testimony and arises from the belief and conclusion of the Court that We also agree with the respondent Court's conclusion that the
said witness is telling the truth. Thus, in the case of Vda. de Aroyo v. excursion to the office of Atty. Paraiso was planned by the deceased,
El Beaterio del Santissimo Rosario de Molo, No. L-22005, May 3, which conclusion was correctly drawn from the testimony of the
1968, the Supreme Court held and ruled that: "Competency as a Gimpaya spouses that they started from the Navotas residence of the
witness is one thing, and it is another to be a credible witness, so deceased with a photographer and Isabel Gabriel herself, then they
credible that the Court must accept what he says. Trial courts may proceeded by car to Matilde Orobia's house in Philamlife, Quezon City
allow a person to testify as a witness upon a given matter because he to fetch her and from there, all the three witnesses (the Gimpayas and
is competent, but may thereafter decide whether to believe or not to Orobia) passed by a place where Isabel Gabriel stayed for about ten to
believe his testimony." In fine, We state the rule that the instrumental fifteen minutes at the clinic of Dr. Chikiamco before they proceeded
witnesses in Order to be competent must be shown to have the to Atty. Cipriano Paraiso's office.
qualifications under Article 820 of the Civil Code and none of the
disqualifications under Article 821 and for their testimony to be It is also evident from the records, as testified to by Atty. Paraiso, that
credible, that is worthy of belief and entitled to credence, it is not previous to the day that. the will was executed on April 15, 1961, Isabel
mandatory that evidence be first established on record that the Gabriel had requested him to help her in the execution of her will and
witnesses have a good standing in the community or that they are that he told her that if she really wanted to execute her will, she should
honest and upright or reputed to be trustworthy and reliable, for a bring with her at least the Mayor of Navotas, Rizal and a Councilor to
person is presumed to be such unless the contrary is established be her witnesses and that he (Atty. Paraiso) wanted a medical
otherwise. In other words, the instrumental witnesses must be certificate from a physician notwithstanding the fact that he believed
competent and their testimonies must be credible before the court her to be of sound and disposition mind. From this evidence, the
allows the probate of the will they have attested. We, therefore, reject appellate court rightly concluded, thus: "It is, therefore, clear that the
petitioner's position that it was fatal for respondent not to have presence of Isabel Gabriel and her witnesses Matilde Orobia, Celso
introduced prior and independent proof of the fact that the witnesses Gimpaya and Maria Gimpaya including the photographer in the law
were "credible witnesses that is, that they have a good standing in the office of Atty. Paraiso was not coincidental as their gathering was pre-
community and reputed to be trustworthy and reliable. arranged by Isabel Gabriel herself."

Under the second, third, fourth, fifth, sixth, seventh and eighth As to the appellate court's finding that Atty. Paraiso was not previously
assignments of errors, petitioner disputes the findings of fact of the furnished with the names and residence certificates of the witnesses as
respondent court in finding that the preparation and execution of the to enable him to type such data into the document Exhibit ' L which
will was expected and not coincidental, in finding that Atty. Paraiso the petitioner assails as contradictory and irreconcilable with the
was not previously furnished with the names and residence certificates statement of the Court that Atty. Paraiso was handed a list (containing

68
the names of the witnesses and their respective residence certificates) Gimpaya. The trial court's conclusion that Orobia's admission that she
immediately upon their arrival in the law office by Isabel Gabriel and gave piano lessons to the child of the appellant on Wednesdays and
this was corroborated by Atty. Paraiso himself who testified that it was Saturdays and that April 15, 1961 happened to be a Saturday for which
only on said occasion that he received such list from Isabel Gabriel, reason Orobia could not have been present to witness the will on that
We cannot agree with petitioner's contention. We find no contradiction day is purely conjectural. Witness Orobia did not admit having
for the, respondent Court held that on the occasion of the will making given piano lessons to the appellant's child every Wednesday and
on April 15, 1961, the list was given immediately to Atty. Paraiso and Saturday without fail. It is highly probable that even if April 15, 1961
that no such list was given the lawyer in any previous occasion or date were a Saturday, she gave no piano lessons on that day for which
prior to April 15, 1961. reason she could have witnessed the execution of the will. Orobia
spoke of occasions when she missed giving piano lessons and had to
But whether Atty. Paraiso was previously furnished with the names make up for the same. Anyway, her presence at the law office of Atty.
and residence certificates of the witnesses on a prior occasion or on the Paraiso was in the morning of April 15, 1961 and there was nothing to
very occasion and date in April 15, 1961 when the will was executed, preclude her from giving piano lessons on the afternoon of the same
is of no moment for such data appear in the notarial acknowledgment day in Navotas, Rizal."
of Notary Public Cipriano Paraiso, subscribed and sworn to by the
witnesses on April 15, 1961 following the attestation clause duly In addition to the testimony of Matilde Orobia, Celso Gimpaya and
executed and signed on the same occasion, April 15, 1961. And since Maria Gimpaya that Matilde was present on April 15, 1961 and that
Exhibit "F" is a notarial will duly acknowledged by the testatrix and she signed the attestation clause to the will and on the left-hand margin
the witnesses before a notary public, the same is a public document of each of the pages of the will, the documentary evidence which is the
executed and attested through the intervention of the notary public and will itself, the attestation clause and the notarial acknowledgment
as such public document is evidence of the facts in clear, unequivocal overwhelmingly and convincingly prove such fact that Matilde Orobia
manner therein expressed. It has in its favor the presumption of was present on that day of April 15, 1961 and that she witnessed the
regularity. To contradict all these, there must be evidence that is clear, will by signing her name thereon and acknowledged the same before
convincing and more than merely preponderant. (Yturalde vs. Azurin, the notary public, Atty. Cipriano P. Paraiso. The attestation clause
28 SCRA 407). We find no such evidence pointed by petitioner in the which Matilde Orobia signed is the best evidence as to the date of
case at bar. signing because it preserves in permanent form a recital of all the
material facts attending the execution of the will. This is the very
Likewise, the conclusion of the Court of Appeals in holding that the purpose of the attestation clause which is made for the purpose of
fact that the three typewritten lines under the typewritten words preserving in permanent form a record of the facts attending the
"pangalan ' and "tinitirahan" were left blank shows beyond cavil that execution of the will, so that in case of failure in the memory of the
the three attesting witnesses were all present in the same occasion subscribing witnesses, or other casualty they may still be proved.
merits Our approval because tills conclusion is supported and borne
out by the evidence found by the appellate court, thus: "On page 5 of As to the seventh error assigned by petitioner faulting the Court of
Exhibit "F", beneath the typewritten words "names", "Res. Tax Cert. Appeals in holding that the trial court gave undue importance to the
date issued" and place issued the only name of Isabel Gabriel with picture-takings as proof that the win was improperly executed, We
Residence Tax certificate No. A-5113274 issued on February 24, 1961 agree with the reasoning of the respondent court that: "Matilde
at Navotas Rizal appears to be in typewritten form while the names, Orobia's Identification of the photographer as "Cesar Mendoza",
residence tax certificate numbers, dates and places of issuance of said contrary to what the other two witnesses (Celso and Maria Gimpaya)
certificates pertaining to the three (3) witnesses were personally and Atty. Paraiso said that the photographer was Benjamin Cifra, Jr.,
handwritten by Atty. Paraiso. Again, this coincides with Atty. Paraiso's is at worst a minor mistake attributable to lapse of time. The law does
even the sale must be made to close relatives; and the seventh was the not require a photographer for the execution and attestation of the will.
appointment of the appellant Santiago as executrix of the will without The fact that Miss Orobia mistakenly Identified the photographer as
bond. The technical description of the properties in paragraph 5 of Cesar Mendoza scarcely detracts from her testimony that she was
Exhibit F was not given and the numbers of the certificates of title were present when the will was signed because what matters here is not the
only supplied by Atty. Paraiso. " photographer but the photograph taken which clearly portrays Matilde
Orobia herself, her co-witnesses Celso Gimpaya. " Further, the
It is true that in one disposition, the numbers of the Torrens titles of respondent Court correctly held: "The trial court gave undue
the properties disposed and the docket number of a special proceeding importance to the picture takings, jumping therefrom to the conclusion
are indicated which Atty. Paraiso candidly admitted were supplied by that the will was improperly executed. The evidence however, heavily
him, whereupon petitioner contends that it was incredible that Isabel points to only one occasion of the execution of the will on April 15,
Gabriel could have dictated the will Exhibit "F" without any note or 1961 which was witnessed by Matilde Orobia, Celso Gimpaya and
document to Atty. Paraiso, considering that Isabel Gabriel was an old Maria Gimpaya. These witnesses were quite emphatic and positive
and sickly woman more than eighty-one years old and had been when they spoke of this occasion. Hence, their Identification of some
suffering from a brain injury caused by two severe blows at her head photographs wherein they all appeared along with Isabel Gabriel and
and died of terminal cancer a few weeks after the execution of Exhibit Atty. Paraiso was superfluous."
"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 Continuing, the respondent Court declared: "It is true that the second
testamentary capacity of the testatrix and is, therefore, beyond Our picture-taking was disclosed at the cross examination of Celso
power to revise and review, We nevertheless hold that the conclusion Gimpaya. But this was explained by Atty. Paraiso as a reenactment of
reached by the Court of Appeals that the testatrix dictated her will the first incident upon the insistence of Isabel Gabriel. Such
without any note or memorandum appears to be fully supported by the reenactment where Matilde Orobia was admittedly no longer present
following facts or evidence appearing on record. Thus, Isabel Gabriel, was wholly unnecessary if not pointless. What was important was that
despite her age, was particularly active in her business affairs as she the will was duly executed and witnessed on the first occasion on April
actively managed the affairs of the movie business ISABELITA 15, 1961 , " and We agree with the Court's rationalization in conformity
Theater, paying the aparatistas herself until June 4, 1961, 3 days before with logic, law and jurisprudence which do not require picture-taking
her death. She was the widow of the late Eligio Naval, former as one of the legal requisites for the execution or probate of a will.
Governor of Rizal Province and acted as coadministratrix in the
Intestate Estate of her deceased husband Eligio Naval. The text of the Petitioner points to alleged grave contradictions, evasions and
win was in Tagalog, a dialect known and understood by her and in the misrepresentations of witnesses in their respective testimonies before
light of all the circumstances, We agree with the respondent Court that the trial court. On the other hand, the respondent Court of Appeals held
the testatrix dictated her will without any note or memorandum, a fact that said contradictions, evasions and misrepresentations had been
unanimously testified to by the three attesting witnesses and the notary explained away. Such discrepancies as in the description of the
public himself. 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
Petitioner's sixth assignment of error is also bereft of merit. The typewritten but which was Identified by witness Jolly Bugarin of the
evidence, both testimonial and documentary is, according to the N.B.I. as pica the mistake in mentioning the name of the photographer
respondent court, overwhelming that Matilde Orobia was physically by Matilde Orobia to be Cesar Mendoza when actually it was Benjamin
present when the will was signed on April 15, 1961 by the testatrix and Cifra, Jr. these are indeed unimportant details which could have
the other two witnesses, Celso Gimpaya and Maria Gimpaya. Such been affected by the lapse of time and the treachery of human memory
factual finding of the appellate court is very clear, thus: "On the such that by themselves would not alter the probative value of their
contrary, the record is replete with proof that Matilde Orobia was testimonies on the true execution of the will, (Pascual vs. dela Cruz,
physically present when the will was signed by Isabel Gabriel on April 28 SCRA 421, 424) for it cannot be expected that the testimony of
'15, 1961 along with her co-witnesses Celso Gimpaya and Maria every person win be Identical and coinciding with each other with

69
regard to details of an incident and that witnesses are not expected to signing of the will, and another, Exhibit "H", showing Matilde Orobia
remember all details. Human experience teach us "that contradictions signing testimony that he had earlier advised Isabel Gabriel to bring
of witnesses generally occur in the details of certain incidents, after a with her at least the Mayor and a Councilor of Navotas, Rizal to be her
long series of questionings, and far from being an evidence of witnesses for he did not know beforehand the Identities of the three
falsehood constitute a demonstration of good faith. In as much as not attesting witnesses until the latter showed up at his law office with
all those who witness an incident are impressed in like manner, it is Isabel Gabriel on April 15, 1961. Atty. Paraiso's claim which was not
but natural that in relating their impressions, they should not agree in controverted that he wrote down in his own hand the date appearing on
the minor details; hence the contradictions in their testimony." (Lopez page 5 of Exhibit "F" dissipates any lingering doubt that he prepared
vs. Liboro, 81 Phil. 429). and ratified the will on the date in question."

It is urged of Us by the petitioner that the findings of the trial court It is also a factual finding of the Court of Appeals in holding that it was
should not have been disturbed by the respondent appellate court credible that Isabel Gabriel could have dictated the will, Exhibit "F",
because the trial court was in a better position to weigh and evaluate without any note or document to Atty. Paraiso as against the contention
the evidence presented in the course of the trial. As a general rule, of petitioner that it was incredible. This ruling of the respondent court
petitioner is correct but it is subject to well-established exceptions. The is fully supported by the evidence on record as stated in the decision
right of the Court of Appeals to review, alter and reverse the findings under review, thus: "Nothing in the record supports the trial court's
of the trial court where the appellate court, in reviewing the evidence unbelief that Isabel Gabriel dictated her will without any note or
has found that facts and circumstances of weight and influence have document to Atty. Paraiso. On the contrary, all the three attesting
been ignored and overlooked and the significance of which have been witnesses uniformly testified that Isabel Gabriel dictated her will to
misinterpreted by the trial court, cannot be disputed. Findings of facts Atty. Paraiso and that other than the piece of paper that she handed to
made by trial courts particularly when they are based on conflicting said lawyer she had no note or document. This fact jibes with the
evidence whose evaluation hinges on questions of credibility of evidence which the trial court itself believed was unshaken that
contending witnesses hes peculiarly within the province of trial courts Isabel Gabriel was of sound disposing memory when she executed her
and generally, the appellate court should not interfere with the same. will.
In the instant case, however, the Court of Appeals found that the trial
court had overlooked and misinterpreted the facts and circumstances Exhibit "F" reveals only seven (7) dispositions which are not
established in the record. Whereas the appellate court said that complicated but quite simple. The first was Isabel Gabriel's wish to be
"Nothing in the record supports the trial court's unbelief that Isabel interred according to Catholic rites the second was a general directive
Gabriel dictated her will without any note or document to Atty. to pay her debts if any; the third provided for P1,000.00 for her sister
Paraiso;" that the trial court's conclusion that Matilde Orobia could not Praxides Gabriel Vda. de Santiago and P2,000.00 for her brother
have witnessed anybody signing the alleged will or that she could not Santiago Gabriel; the fourth was a listing of her 13 nephews and nieces
have witnessed Celso Gimpaya and Maria Gimpaya sign the same or including oppositor-appellee Rizalina Gabriel and the amount for each
that she witnessed only the deceased signing it, is a conclusion based legatee the fifth was the institution of the petitioner-appellant,
not on facts but on inferences; that the trial court gave undue Lutgarda Santiago as the principal heir mentioning in general terms
importance to the picture-takings, jumping therefrom to the conclusion seven (7) types of properties; the sixth disposed of the remainder of
that the will was improperly executed and that there is nothing in the her estate which she willed in favor of appellant Lutgarda Santiago but
entire record to support the conclusion of the court a quo that the will prohibiting the sale of such properties to anyone except in extreme
signing occasion was a mere coincidence and that Isabel Gabriel made situations in which judgment is based on a misapprehension of facts;
an appointment only with Matilde Orobia to witness the signing of her (5) when the findings of fact are conflicting, (6) when the Court of
will, then it becomes the duty of the appellate court to reverse findings Appeals, in making its findings, went beyond the issues of the case and
of fact of the trial court in the exercise of its appellate jurisdiction over the same is contrary to the admissions of both appellant and appellee.
the lower courts.
Petitioner's insistence is without merit. We hold that the case at bar
Still the petitioner insists that the case at bar is an exception to the rule does not fall within any of the exceptions enumerated above. We
that the judgment of the Court of Appeals is conclusive as to the facts likewise hold that the findings of fact of the respondent appellate court
and cannot be reviewed by the Supreme Court. Again We agree with are fully supported by the evidence on record. The conclusions are
the petitioner that among the exceptions are: (1) when the conclusion fully sustained by substantial evidence. We find no abuse of discretion
is a finding grounded entirely on speculations, surmises or conjectures; and We discern no misapprehension of facts. The respondent Court's
(2) when the inference is manifestly mistaken, absurd or impossible; findings of fact are not conflicting. Hence, the well-established rule
(3) when there is a grave abuse of discretion; (4) when the presence of that the decision of the Court of Appeals and its findings of fact are
each other as required by law. " Specifically, We affirm that on April binding and conclusive and should not be disturbed by this Tribunal
15, 1961 the testatrix Isabel Gabriel, together with Matilde Orobia, and it must be applied in the case at bar in its full force and effect,
Celso Gimpaya and his wife Maria Gimpaya, and a photographer without qualification or reservation. The above holding simply
proceeded in a car to the office of Atty. Cipriano Paraiso at the Bank synthesize the resolutions we have heretofore made in respect ' to
of P.I. Building, Manila in the morning of that day; that on the way, petitioner's previous assignments of error and to which We have
Isabel Gabriel obtained a medical certificate from one Dr. Chikiamko disagreed and, therefore, rejected.
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 The last assignments of error of petitioner must necessarily be rejected
asked Isabel Gabriel to dictate what she wanted to be written in the will by Us as We find the respondent Court acted properly and correctly
and the attorney wrote down the dictation of Isabel Gabriel in Tagalog, and has not departed from the accepted and usual course of judicial
a language known to and spoken by her; that Atty. Paraiso read back proceedings as to call for the exercise of the power of supervision by
to her what he wrote as dictated and she affirmed their correctness; the the Supreme Court, and as We find that the Court of Appeals did not
lawyer then typed the will and after finishing the document, he read it err in reversing the decision of the trial court and admitting to probate
to her and she told him that it was alright; that thereafter, Isabel Gabriel Exhibit "F", the last will and testament of the deceased 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 We rule that the respondent Court's factual findings upon its
also at the left-hand margin of each and every page of the document in summation and evaluation of the evidence on record is unassailable
the presence also of the said three witnesses; that thereafter Matilde that: "From the welter of evidence presented, we are convinced that the
Orobia attested the will by signing her name at the end of the attestation will in question was executed on April 15, 1961 in the presence of
clause and at the left-hand margin of pages 1, 2, 3 and 5 of the Matilde Orobia, Celso Gimpaya and Maria Gimpaya signing and
document in the presence of Isabel Gabriel and the other two witnessing the same in the the will on a table with Isabel Gabriel, Celso
witnesses, Celso Gimpaya and Maria Gimpaya; then, Celso Gimpaya Gimpaya and Maria Gimpaya sitting around the table. Atty. Paraiso,
signed also the will at the bottom of the attestation clause and at the after finishing the notarial act, then delivered the original to Isabel
left-hand margin of the other pages of the document in the presence of Gabriel and retained the other copies for his file and notarial register.
Isabel Gabriel, Matilde Orobia and Maria Gimpaya; that Maria A few days following the signing of the will, Isabel Gabriel, Celso
Gimpaya followed suit, signing her name at the foot of the attestation Gimpaya and another photographer arrived at the office of Atty.
clause and at the left-hand margin of every page in the presence of Paraiso and told the lawyer that she wanted another picture taken
Isabel Gabriel, Matilde Orobia and Celso Gimpaya; that thereafter, because the first picture did not turn out good. The lawyer told her that
Atty. Paraiso notarized the will as Page No. 94, Book No. IV, Series this cannot be done because the will was already signed but Isabel
of 1961, in his Notarial Register. On the occasion of the execution and Gabriel insisted that a picture be taken, so a simulated signing was
attestation of the will, a photographer took pictures, one Exhibit "G", performed during which incident Matilde Orobia was not present.
depicting Matilde Orobia, the testatrix Isabel Gabriel, Celso Gimpaya,
Maria Gimpaya and Atty. Paraiso, taken on said occasion of the

70
Petitioner's exacerbation centers on the supposed incredibility of the witnesses to the will in question, which fact was corroborated by
testimonies of the witnesses for the proponent of the will, their alleged himself at the trial. The appellants take Zalamea's testimony in
evasions, inconsistencies and contradictions. But in the case at bar, the connection with the dismissal of a criminal case against a nephew of
three instrumental witnesses who constitute the best evidence of the his, in whose success he was interested, and infer from this fact the
will making have testified in favor of the probate of the will. So has partiality of his testimony. We deem this allegation of little importance
the lawyer who prepared it, one learned in the law and long in the to impeach the credibility of the witness Zalamea, especially because
practice thereof, who thereafter notarized it. All of them are his testimony is corroborated by the other attesting witness. Gonzalo
disinterested witnesses who stand to receive no benefit from the Abaya, and by attorney Luis Abaya, who had prepared the testament
testament. The signatures of the witnesses and the testatrix have been at the instance of the testatrix. The foregoing is sufficient for us to
identified on the will and there is no claim whatsoever and by anyone, conclude that the first assignment of error made by the appellants is
much less the petitioner, that they were not genuine. In the last and groundless.
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 The appellants contend that the court below erred in admitting the will
of the respondent Court of Appeals. to probate notwithstanding the omission of the proponent to produce
one of the attesting witnesses.
WHEREFORE, IN VIEW OF THE FOREGOING, the judgment
appealed from is hereby AFFIRMED, with costs against the petitioner. At the trial of this case the attorneys for the proponent stated to the
SO ORDERED. court that they had necessarily to omit the testimony of Pedro de Jesus,
one of the persons who appear to have witnessed the execution of the
G.R. No. 17857 June 12, 1922 will, for there were reasonable grounds to believe that said witness was
openly hostile to the proponent, inasmuch as since the announcement
In re will of Josefa Zalamea y Abella, deceased. of the trial of the petition for the probate of the will, said witness has
PEDRO UNSON, petitioner-appellee, vs. been in frequent communication with the contestants and their
ANTONIO ABELLA, ET AL., opponents-appellants. attorney, and has refused to hold any conference with the attorneys for
the proponent. In reply to this, the attorney for the contestants, said to
VILLAMOR, J.: the court, "without discussing for the present whether or not in view of
those facts (the facts mentioned by the attorneys for the petitioner), in
On July 19, 1918, Doa Josefa Zalamea y Abella, single, 60 years old, the hypothesis that the same are proven, they are relieved from
who was residing in the municipality of Pagsanjan, Province of producing that witness, for while it is a matter not decided, it is a
Laguna, executed her last will and testament with an attached recognized rule that the fact that a witness is hostile does not justify a
inventory of her properties, Exhibits A and A-1, in the presence of party to omit his testimony; without discussing this, I say, I move that
three witnesses, who signed with her all the pages of said documents. said statement be stricken out, and if the proponent wants these facts
The testatrix died on the 6th of January, 1921, and, as the record shows, to stand to stand in the record, let him prove them." The court a
the executor appointed in the will, Pedro Unson, filed in the court of quo ruled, saying, "there is no need."
First Instance of Laguna on the 19th of January of the same year an
application for the probate of the will and the issuance of the proper To this ruling of the court, the attorney for the appellants did not take
letters of administration in his favor. any exception.

To said application an opposition was presently by Antonio Abella, In the case of Avera vs. Garcia and Rodriguez (42 Phil., 145), recently
Ignacia Abella, Avicencia Abella, and Santiago Vito, alleging that the decided by this court, in deciding the question whether a will can be
supposed will of the deceased Zalamea was not executed in conformity admitted to probate, where opposition is made, upon the proof of a
with the provinces of the law, inasmuch as it was not paged single attesting witness, without producing or accounting for the
correlatively in letters, nor was there any attestation clause in it, nor absence of the other two, it was said; "while it is undoubtedly true that
was it signed by the testatrix and the witnesses in the presence of each an uncontested will may be proved by the testimony of only one of the
other. three attesting witnesses, nevertheless in Cabang vs. Delfinado (34
Phil., 291), this court declared after an elaborate examination of the
Trial having been held, the judge a quo overruled the opposition of the American and English authorities that when a contest is instituted, all
contestants, and ordered the probate of the will, Exhibit A, and the of the attesting witnesses must be examined, if alive and within reach
inventory, Exhibit A-1, holding that both documents contained the true of the process of the court.
and last will of the deceased Josefa Zalamea. In the present case no explanation was made at the trial as to
From the judgment of the court below, the contestants have appealed, why all three of the attesting witnesses were not produced,
and in their brief they assign three errors, which, in their opinion, but the probable reason is found in the fact that, although the
justify the reversal of the judgment appealed from. petition for the probate of this will had been pending from
December 21, 1917, until the date set for the hearing, which
The first error assigned by the appellants as committed by the court was April 5, 1919, no formal contest was entered until the
below is its finding to the effect that Exhibit A, said to be the will of very day set for the hearing; and it is probable that the
the deceased Josefa Zalamea, was executed with all the solemnities attorney for the proponent, believing in good faith that
required by the law. probate would not be contested, repaired to the court with
only one of the three attesting witnesses at hand, and upon
The arguments advanced by appellants' counsel in support of the first finding that the will was contested, incautiously permitted
assignment of error tend to impeach the credibility of the witnesses for the case to go to proof without asking for a postponement of
the proponent, specially that of Eugenio Zalamea. We have made a the trial in order that he might produce all the attesting
careful examination of the evidence, but have not found anything that witnesses.
would justify us in disturbing the finding of the court a quo. The
attesting witnesses, Eugenio Zalamea and Gonzalo Abaya, clearly Although this circumstance may explain why the three
testify that together with the other witness to the will, Pedro de Jesus, witnesses were not produced, it does not in itself supply any
they did sign each and every page of the will and of the inventory in basis for changing the rule expounded in the case above
the presence of each other and of the testatrix, as the latter did likewise referred to; and were it not for a fact now to be mentioned,
sign all the pages of the will and of the inventory in their presence. this court would probably be compelled to reverse this case
on the ground that the execution of the will had not been
In their brief the appellants intimate that one of the pages of the will proved by a sufficient number of attesting witnesses.
was not signed by the testatrix, nor by the witnesses on the day of the
execution of the will, that is, on the 19th of July, 1918, basing their It appears, however, that this point was not raised by the
contention on the testimony of Aurelio Palileo, who says that on one appellant in the lower court either upon the submission of
occasion Gonzalo Abaya told him that one of the pages of the will had the cause for determination in that court or upon the occasion
not been signed by the witnesses, nor by the testatrix on the day of its of the filing of the motion for a new trial. Accordingly it is
execution. Palileo's testimony is entirely contradicted by Gonzalo insisted for the appellee that this question cannot now be
Abaya not only in the direct, but in the rebuttal, evidence as well. To raised for t he first time in this court. We believe this point
our mind, Palileo's testimony cannot prevail over that of the attesting is well taken, and the first assignment of error must be
witnesses, Gonzalo Avaya and Eugenio Zalamea. The appellants declared not to be well taken. This exact question has been
impeach the credibility of Eugenio Zalamea, for having made a sworn decided by the Supreme Court of California adversely to the
declaration before the justice of the peace of Santa Cruz, Laguna, contention of the appellant, and we see no reason why the
before the trial of this case, to the effect that he was really one of the
71
same rule of practice should not be observed by us. (Estate the court is satisfied upon the evidence adduced that the will has been
of McCarty, 58 Cal., 335, 337.) executed and signed in the manner prescribed by the law.

There are at least two reasons why the appellate tribunals are The last error assigned by the appellants is made to consist in the
disinclined to permit certain questions to be raised for the probate of the inventory, Exhibit A-1, despite the fact that this exhibit
first time in the second instance. In the first place it has no attestation clause in it, and its paging is made in Arabic
eliminates the judicial criterion of the Court of First Instance numerals and not in letters.
upon the point there presented and makes the appellate court
in effect a court of first instance with reference to that point, In the third paragraph of the will, reference is made to the inventory,
unless the case is remanded for a new trial. In the second Exhibit A-1, and at the bottom of said will, the testatrix Josefa Zalamea
place, it permits, if it does not encourage, attorneys to trifle says:
with the administration of justice by concealing from the In witness whereof, I sign this will composed of ten folios
trial court and from their opponent the actual point upon including the page containing the signatures and the
which reliance is placed, while they are engaged in other attestation of the witnesses; I have likewise signed the
discussions more simulated than real. These considerations inventory attached to this will composed of ten folios in the
are, we think, decisive. presence of Messrs. Gonzalo Abaya, Eugenio Zalamea,
Pedro de Jesus, in this municipality of Pagsanjan, Laguna,
In ruling upon the point above presented we do not wish to Philippine Islands, this 19th of July, 1918.
be understood as laying down any hard and fast rule that
would prove an embarrassment to this court in the And the attestation clause is as follows:
administration of justice in the future. In one way or another The foregoing will composed of ten folios including this one
we are constantly here considering aspects of cases and whereunto we have affixed our signatures, as well as the
applying doctrines which have escaped the attention of all inventory of the properties of Doa Josefa Zalamea y Abella,
persons concerned in the litigation below; and this is was read to Doa Josefa Zalamea y Abella, and the latter
necessary if this court is to contribute the part due from it in affixed her name to the last, and each and every page of this
the correct decision of the cases brought before it. What we will and inventory composed of ten folios in our presence;
mean to declare is that when we believe that substantial and she declared this to be her last will and testament and at
justice has been done in the Court of First Instance, and the her request we have affixed hereunto our respective
point relied on for reversal in this court appears to be one signatures in her presence and in the presence of each other
which ought properly to have been presented in that court, as witnesses to the will and the inventory this 19th of July,
we will in the exercise of a sound discretion ignore such 1918, at Pagsanjan, Laguna, P.I.
question upon appeal; and this is the more proper when the (Sgd.) GONZALO ABAYA,
question relates to a defect which might have been cured in EUGENIO ZALAMEA,
the Court of First Instance if attention had been called to it PEDRO DE JESUS.
there. In the present case, if the appellant had raised this
question in the lower court, either at the hearing or upon a In view of the fact that the inventory is referred to in the will as an
motion for a new trial, that court would have had the power, integral part of it, we find that the foregoing attestation clause is in
and it would have been its duty, considering the tardy compliance with section 1 of Act No. 2645, which requires this
institution of the contest, to have granted a new trial in order solemnity for the validity of a will, and makes unnecessary any other
that all the witnesses to the will might be brought into court. attestation clause at the end of the inventory.
But instead of thus calling the error to the attention of the
court and his adversary, the point is first raised by the As to the paging of the will in Arabic numerals, instead of in letters,
appellant in this court. We hold that this is too late. we adhere to the doctrine announced in the case of Aldaba vs.
Properly understood, the case of Cabang vs. Delfinado, Roque (p. 378, ante), recently decided by this court. In that case the
supra, contains nothing inconsistent with the ruling we now validity of the will was assailed on the ground that its folios were paged
make, for it appears from the opinion in that case that the with the letters A, B, C, etc., instead of with the letters "one," two,"
proponent of the will had obtained an order for a "three," etc. It was held that this way of numbering the pages of a will
republication and new trial for the avowed purpose of is in compliance with the spirit of the law, inasmuch as either one of
presenting the two additional attesting witnesses who had these methods indicates the correlation of the pages and serves to
not been previously examined, but nevertheless prevent the abstraction of any of them. In the course of the decision,
subsequently failed without any apparent reason to take their we said: "It might be said that the object of the law in requiring that
testimony. Both parties in that case were therefore fully the paging be made in letters is to make falsification more difficult, but
apprised that the question of the number of witnesses it should be noted that since all the pages of the testament are signed
necessar to prove the will was in issue in the lower court. at the margin by the testatrix and the witnesses, the difficulty of forging
the signatures in either case remains the same. In other words the more
In the case at bar, we do not think this question properly to have been or less degree of facility to imitate the writing of the letters A, B, C,
raised at the trial, but in the memorandum submitted by the attorney etc., does not make for the easiness to forge the signatures. And as in
for the appellants to the trial court, he contended that the will could not the present case there exists the guaranty of the authenticity of the
be admitted to probate because one of the witnesses to the will was not testament, consisting in the signatures on the left margins of the
produced, and that the voluntary non-production of this witness raises testament and the paging thereof as declared in the attestation clause,
a presumption against the pretension of the proponent. The trial court the holding of this court in Abangan vs. Abangan (40 Phil., 476), might
found that the evidence introduced by the proponent, consisting of the as well be repeated:
testimony of the two attesting witnesses and the other witness who was "The object of the solemnities surrounding the execution of
present at the execution, and had charge of the preparation of the will wills is to close the door against bad faith and fraud, to avoid
and the inventory, Exhibits A and A-1, was sufficient. As announced substitution of wills and testaments and to guaranty their
in Cabang vs. Delfinado, supra, the general rule is that, where truth and authenticity. Therefore the laws on this subject
opposition is made to the probate of a will, the attesting witnesses must should be interpreted in such a way as to attain these
be produced. But there are exceptions to this rule, for instance, when a primordial ends. But, on the other hand, also one must not
witness is dead, or cannot be served with process of the court, or his lose sight of the fact that it is not the object of the law to
reputation for truth has been questioned or he appears hostile to the restrain and curtail the exercise of the right to make a will.
cause of the proponent. In such cases, the will may be admitted to So when an interpretation whatsoever, that adds nothing but
probate without the testimony of said witness, if, upon the other proofs demands more requisites entirely unnecessary, useless, and
adduced in the case, the court is satisfied that the will has been duly frustrative of the testator's last will, must be disregarded."
executed. Wherefore, we find that the non-production of the attesting
witness, Pedro de Jesus, as accounted for by the attorney for the In that case the testament was written on one page, and the attestation
proponent at the trial, does not render void the decree of the court a clause on another. Neither one of these pages was numbered in any
quo, allowing the probate. way, and it was held: "In a will consisting of two sheets the first of
which contains all the testamentary dispositions and is signed at the
But supposing that said witness, when cited, had testified adversely to bottom by the testator and three witnesses, and the second contains
the application, this would not by itself have change the result reached only the attestation clause and is signed also at the bottom by the three
by the court a quo, for section 632 of the Code of Civil Procedure witnesses it is not necessary that both sheets be further signed on their
provides that a will can be admitted to probate, notwithstanding that margins by the testator and the witnesses, or be paged."
one or more witnesses do not remember having attested it, provided

72
This means that, according to the particular case, the emission of
paging does not necessarily render the testament invalid. For a better understanding of the controversy, a factual account would
be a great help.
The law provides that the numbering of the pages should be in letters
placed on the upper part of the sheet, but if the paging should be placed On October 20, 1963, Adriana Maloto died leaving as heirs her niece
in the lower part, would the testament be void for this sole reason? We and nephews, the petitioners Aldina Maloto-Casiano and Constancio,
believe not. The law also provides that the testator and the witnesses Maloto, and the private respondents Panfilo Maloto and Felino Maloto.
must sign the left margin of each of the sheets of the testament; but if Believing that the deceased did not leave behind a last will and
they should sign on the right margin, would this fact also annul the testament, these four heirs commenced on November 4, 1963 an
testament? Evidently not. This court has already held in Avera vs. intestate proceeding for the settlement of their aunt's estate. The case
Garcia and Rodriguez (42 Phi., 145): was instituted in the then Court of First Instance of Iloilo and was
"It is true that the statute says that the testator and the docketed as Special Proceeding No. 1736. However, while the case
instrumental witnesses shall sign their names on the left was still in progress, or to be exact on February 1, 1964, the parties
margin of each and every page; and it is undeniable that the Aldina, Constancio, Panfilo, and Felino executed an agreement of
general doctrine is to the effect that all statutory extrajudicial settlement of Adriana's estate. The agreement provided
requirements as to the execution of wills must be fully for the division of the estate into four equal parts among the parties.
complied with. The same execution for wills must be fully The Malotos then presented the extrajudicial settlement agreement to
complied with. The same doctrine is also deducible from the trial court for approval which the court did on March 21, 1964.
cases heretofore decided by this court." That should have signalled the end of the controversy, but,
unfortunately, it had not.
"Still some details at time creep into legislative enactments
which are so trivial that it would be absurd to suppose that Three years later, or sometime in March 1967, Atty. Sulpicio Palma, a
the Legislature could have attached any decisive importance former associate of Adriana's counsel, the late Atty. Eliseo Hervas,
to them. The provision to the effect that the signatures of the discovered a document entitled "KATAPUSAN NGA
testator and witnesses shall be written on the left margin of PAGBUBULAT-AN (Testamento)," dated January 3,1940, and
each page rather than on the margin seems to be of this purporting to be the last will and testament of Adriana. Atty. Palma
character. So far as concerns the authentication of the will, claimed to have found the testament, the original copy, while he was
and of every part thereof, it can make no possible difference going through some materials inside the cabinet drawer formerly used
whether the names appear on the left or on the right margin, by Atty. Hervas. The document was submitted to the office of the clerk
provided they are on one or the other. In Craig vs. of the Court of First Instance of Iloilo on April 1, 1967. Incidentally,
Tatlonghari (G. R. No. 12558, decided March 23, 1918, not while Panfilo and Felino are still named as heirs in the said will, Aldina
reported), this court declared a will void which was totally and Constancio are bequeathed much bigger and more valuable shares
lacking in the signatures required to be written on its several in the estate of Adriana than what they received by virtue of the
pages; and in the case of Re Estate of Saguinsin (41 Phil., agreement of extrajudicial settlement they had earlier signed. The will
875) a will was likewise declared void which contained the likewise gives devises and legacies to other parties, among them being
necessary signatures on the margin of each leaf (folio), but the petitioners Asilo de Molo, the Roman Catholic Church of Molo,
not in the margin of each page containing written matter." and Purificacion Miraflor.

We do not desire to intimate that the numbering in letters is a requisite Thus, on May 24, 1967, Aldina and Constancio, joined by the other
of no importance. But since its principal object is to give the correlation devisees and legatees named in the will, filed in Special Proceeding
of the pages, we hold that his object may be attained by writing one, No. 1736 a motion for reconsideration and annulment of the
two, three, etc., as well as by writing A, B, C, etc. proceedings therein and for the allowance of the will When the trial
court denied their motion, the petitioner came to us by way of a petition
We see no reason why the same rule should not be applied where the for certiorari and mandamus assailing the orders of the trial court . 3 As
paging is in Arabic numerals, instead of in letters, as in the inventory we stated earlier, we dismissed that petition and advised that a separate
in question. So that, adhering to the view taken by this court in the case proceeding for the probate of the alleged will would be the appropriate
of Abangan vs. Abangan, and followed in Aldava vs. Roque, with vehicle to thresh out the matters raised by the petitioners.
regard to the appreciation of the solemnities of a will, we find that the
judgement appealed from should be, as is hereby, affirmed with the Significantly, the appellate court while finding as inconclusive the
costs against the appellants. So ordered. matter on whether or not the document or papers allegedly burned by
the househelp of Adriana, Guadalupe Maloto Vda. de Coral, upon
G.R. No. 76464 February 29, 1988 instructions of the testatrix, was indeed the will, contradicted itself and
found that the will had been revoked. The respondent court stated that
TESTATE ESTATE OF THE LATE ADRIANA MALOTO, the presence of animus revocandi in the destruction of the will had,
ALDINA MALOTO CASIANO, CONSTANCIO MALOTO, nevertheless, been sufficiently proven. The appellate court based its
PURIFICACION MIRAFLOR, ROMAN CATHOLIC finding on the facts that the document was not in the two safes in
CHURCH OF MOLO, AND ASILO DE MOLO, petitioners, vs. Adriana's residence, by the testatrix going to the residence of Atty.
COURT OF APPEALS, PANFILO MALOTO AND FELINO Hervas to retrieve a copy of the will left in the latter's possession, and,
MALOTO, respondents. her seeking the services of Atty. Palma in order to have a new will
drawn up. For reasons shortly to be explained, we do not view such
SARMIENTO, J.: facts, even considered collectively, as sufficient bases for the
conclusion that Adriana Maloto's will had been effectively revoked.
This is not the first time that the parties to this case come to us. In fact,
two other cases directly related to the present one and involving the There is no doubt as to the testamentary capacity of the testatrix and
same parties had already been decided by us in the past. In G.R. No. the due execution of the will. The heart of the case lies on the issue as
L-30479, 1which was a petition for certiorari and mandamus instituted to whether or not the will was revoked by Adriana.
by the petitioners herein, we dismissed the petition ruling that the more The provisions of the new Civil Code pertinent to the issue can be
appropriate remedy of the petitioners is a separate proceeding for the found in Article 830.
probate of the will in question. Pursuant to the said ruling, the Art. 830. No will shall be revoked except in the following
petitioners commenced in the then Court of First Instance of Iloilo, cases:
Special Proceeding No. 2176, for the probate of the disputed will, (1) By implication of law; or
which was opposed by the private respondents presently, Panfilo and (2) By some will, codicil, or other writing
Felino both surnamed Maloto. The trial court dismissed the petition on executed as provided in case of wills: or
April 30, 1970. Complaining against the dismissal, again, the (3) By burning, tearing, cancelling, or obliterating
petitioners came to this Court on a petition for review by the will with the intention of revoking it, by the
certiorari. 2 Acting on the said petition, we set aside the trial court's testator himself, or by some other person in his
order and directed it to proceed to hear the case on the merits. The trial presence, and by his express direction. If burned,
court, after hearing, found the will to have already been revoked by the torn cancelled, or obliterated by some other
testatrix. Adriana Maloto, and thus, denied the petition. The petitioners person, without the express direction of the
appealed the trial court's decision to the Intermediate Appellate Court testator, the will may still be established, and the
which, on June 7, 1985, affirmed the order. The petitioners' motion for estate distributed in accordance therewith, if its
reconsideration of the adverse decision proved to be of no avail, hence, contents, and due execution, and the fact of its
this petition. unauthorized destruction, cancellation, or

73
obliteration are established according to the Rules it was precisely because of our ruling in G.R. No. L-30479 that the
of Court. (Emphasis Supplied.) petitioners instituted this separate action for the probate of the late
Adriana Maloto's will. Hence, on these grounds alone, the position of
It is clear that the physical act of destruction of a will, like burning in the private respondents on this score can not be sustained.
this case, does not per se constitute an effective revocation, unless the
destruction is coupled with animus revocandi on the part of the One last note. The private respondents point out that revocation could
testator. It is not imperative that the physical destruction be done by be inferred from the fact that "(a) major and substantial bulk of the
the testator himself. It may be performed by another person but under properties mentioned in the will had been disposed of: while an
the express direction and in the presence of the testator. Of course, it insignificant portion of the properties remained at the time of death (of
goes without saying that the document destroyed must be the will the testatrix); and, furthermore, more valuable properties have been
itself. acquired after the execution of the will on January 3,1940." 7 Suffice it
to state here that as these additional matters raised by the private
In this case, while animus revocandi or the intention to revoke, may be respondents are extraneous to this special proceeding, they could only
conceded, for that is a state of mind, yet that requisite alone would not be appropriately taken up after the will has been duly probated and a
suffice. "Animus revocandi is only one of the necessary elements for certificate of its allowance issued.
the effective revocation of a last will and testament. The intention to
revoke must be accompanied by the overt physical act of burning, WHEREFORE, judgment is hereby rendered REVERSING and
tearing, obliterating, or cancelling the will carried out by the testator SETTING ASIDE the Decision dated June 7, 1985 and the Resolution
or by another person in his presence and under his express direction. dated October 22, 1986, of the respondent Court of Appeals, and a new
There is paucity of evidence to show compliance with these one ENTERED for the allowance of Adriana Maloto's last will and
requirements. For one, the document or papers burned by Adriana's testament. Costs against the private respondents. This Decision is
maid, Guadalupe, was not satisfactorily established to be a will at all, IMMEDIATELY EXECUTORY. SO ORDERED.
much less the will of Adriana Maloto. For another, the burning was not
proven to have been done under the express direction of Adriana. And G.R. No. L-2538 September 21, 1951
then, the burning was not in her presence. Both witnesses, Guadalupe
and Eladio, were one in stating that they were the only ones present at Testate Estate of the Deceased MARIANO MOLO Y LEGASPI.
the place where the stove (presumably in the kitchen) was located in JUANA JUAN VDA. DE MOLO, petitioner-appellee, vs. LUZ,
which the papers proffered as a will were burned. GLICERIA and CORNELIO MOLO, oppositors-appellants.
The respondent appellate court in assessing the evidence presented by BAUTISTA ANGELO, J.:
the private respondents as oppositors in the trial court, concluded that
the testimony of the two witnesses who testified in favor of the will's This is an appeal from an order of the Court of First Instance of Rizal
revocation appear "inconclusive." We share the same view. Nowhere admitting to probate the last will and testament of the deceased
in the records before us does it appear that the two witnesses, Mariano Molo y Legaspi executed on August 17, 1918. The
Guadalupe Vda. de Corral and Eladio Itchon, both illiterates, were oppositors-appellants brought the case on appeal to this Court for the
unequivocably positive that the document burned was indeed reason that the value of the properties involved exceeds P50,000.
Adriana's will. Guadalupe, we think, believed that the papers she
destroyed was the will only because, according to her, Adriana told her Mariano Molo y Legaspi died on January 24, 1941, in the municipality
so. Eladio, on the other hand, obtained his information that the burned of Pasay, province of Rizal, without leaving any forced heir either in
document was the will because Guadalupe told him so, thus, his the descending or ascending line. He was survived, however, by his
testimony on this point is double hearsay. wife, the herein petitioner Juana Juan Vda. de Molo, and by his nieces
and nephew, the oppositors-appellants, Luz Gliceria and Cornelio, all
At this juncture, we reiterate that "(it) is an important matter of public surnamed Molo, who were the legitimate children of Candido Molo y
interest that a purported win is not denied legalization on dubious Legaspi, deceased brother of the testator. Mariano Molo y Legaspi left
grounds. Otherwise, the very institution of testamentary succession two wills, one executed on August 17, 1918, (Exhibit A) and another
will be shaken to its very foundations ...." 4 executed on June 20, 1939. (Exhibit I). The later will executed in 1918.
The private respondents in their bid for the dismissal of the present On February 7, 1941, Juana Juan Vda. de Molo, filed in the Court of
action for probate instituted by the petitioners argue that the same is First Instance of Rizal a petition, which was docketed as special
already barred by res adjudicata. They claim that this bar was brought proceeding No. 8022 seeking the probate of the will executed by the
about by the petitioners' failure to appeal timely from the order dated deceased on June 20, 1939. There being no opposition, the will was
November 16, 1968 of the trial court in the intestate proceeding probated. However, upon petition filed by the herein oppositors, the
(Special Proceeding No. 1736) denying their (petitioners') motion to order of the court admitting the will to probate was set aside and the
reopen the case, and their prayer to annul the previous proceedings case was reopened. After hearing, at which both parties presented their
therein and to allow the last will and testament of the late Adriana evidence, the court rendered decision denying the probate of said will
Maloto. This is untenable. on the ground that the petitioner failed to prove that the same was
executed in accordance with law.
The doctrine of res adjudicata finds no application in the present
controversy. For a judgment to be a bar to a subsequent case, the In view of the disallowance of the will executed on June 20, 1939, the
following requisites must concur: (1) the presence of a final former widow on February 24, 1944, filed another petition for the probate of
judgment; (2) the former judgment was rendered by a court having the will executed by the deceased on August 17, 1918, which was
jurisdiction over the subject matter and the parties; (3) the former docketed as special proceeding No. 56, in the same court. Again, the
judgment is a judgment on the merits; and (4) there is, between the first same oppositors filed an opposition to the petition based on three
and the second action, Identity of parties, of subject matter, and of grounds: (1) that petitioner is now estopped from seeking the probate
cause of action. 5 We do not find here the presence of all the of the will of 1918; (2) that said will has not been executed in the
enumerated requisites. manner required by law and (3) that the will has been subsequently
revoked. But before the second petition could be heard, the battle for
For one, there is yet, strictly speaking, no final judgment rendered liberation came and the records of the case were destroyed.
insofar as the probate of Adriana Maloto's will is concerned. The Consequently, a petition for reconstitution was filed, but the same was
decision of the trial court in Special Proceeding No. 1736, although found to be impossible because neither petitioner nor oppositors could
final, involved only the intestate settlement of the estate of Adriana. produce the copies required for its reconstitution. As a result, petitioner
As such, that judgment could not in any manner be construed to be filed a new petition on September 14, 1946, similar to the one
final with respect to the probate of the subsequently discovered will of destroyed, to which the oppositors filed an opposition based on the
the decedent. Neither is it a judgment on the merits of the action for same grounds as those contained in their former opposition. Then, the
probate. This is understandably so because the trial court, in the case was set for trial, and on May 28, 1948, the court issued an order
intestate proceeding, was without jurisdiction to rule on the probate of admitting the will to probate already stated in the early part of this
the contested will . 6 After all, an action for probate, as it implies, is decision. From this order the oppositors appealed assigning six errors,
founded on the presence of a will and with the objective of proving its to wit.
due execution and validity, something which can not be properly done I. The probate court erred in not holding that the present
in an intestate settlement of estate proceeding which is predicated on petitioner voluntarily and deliberately frustrated the probate
the assumption that the decedent left no will. Thus, there is likewise no of the will dated June 20, 1939, in special proceeding No.
Identity between the cause of action in intestate proceeding and that in 8022, in order to enable her to obtain the probate of another
an action for probate. Be that as it may, it would be remembered that alleged will of Molo dated 191.
74
their view that the will should be denied probate. And on the strenght
II. The court a quo erred in not holding that the petitioner is of this opposition, the court disallowed the will.
now estopped from seeking the probate of Molo's alleged
will of 1918. If petitioner then knew that the 1939 will was inherently defective and
would make the testamentary disposition in her favor invalid and
III. The lower court erred in not holding that petitioner ineffective, because it is a "disposicion captatoria", which knowledge
herein has come to court with "unclean hands" and as such she may easily acquire through consultation with a lawyer, there was
is not entitled to relief. no need her to go through the order of filing the petition for the probate
of the will. She could accomplish her desire by merely suppressing the
IV. The probate court erred in not holding that Molo's will or tearing or destroying it, and then take steps leading to the
alleged will of August 17, 1918 was not executed in the probate of the will executed in 1918. But for her conscience was clear
manner required by law. and bade her to take the only proper step possible under the
circumstances, which is to institute the necessary proceedings for the
V. The probate court erred in not holding that the alleged probate of the 1939 will. This she did and the will was admitted to
will of 1918 was deliberately revoked by Molo himself. probate. But then the unexpected happened. Over her vigorous
opposition, the herein appellants filed a petition for reopening, and
VI. The lower court erred in not holding that Molo's will of over her vigorous objection, the same was granted and the case was
1918 was subsequently revoked by the decedent's will of reopened. Her motion for reconsideration was denied. Is it her fault
1939. that the case was reopened? Is it her fault that the order admitting the
will to probate was set aside? That was a contingency which petitioner
In their first assignment of error, counsel for oppositors contend that never expected. Had appellants not filed their opposition to the probate
the probate court erred in not holding that the petitioner voluntarily and of the will and had they limited their objection to the intrinsic validity
deliberately frustrated the probate of the will dated June 20, 1939, in of said will, their plan to defeat the will and secure the intestacy of the
order to enable her to obtain the probate of the will executed by the deceased would have perhaps been accomplished. But they failed in
deceased on August 17, 1918, pointing out certain facts and their strategy. If said will was denied probate it is due to their own
circumstances with their opinion indicate that petitioner connived with effort. It is now unfair to impute bad faith petitioner simply because
the witness Canuto Perez in an effort to defeat and frustrate the probate she exerted every effort to protect her own interest and prevent the
of the 1939 will because of her knowledge that said will intrinsically intestacy of the deceased to happen.
defective in that "the one and only testamentory disposition thereof
was a "disposicion captatoria". These circumstances, counsel for the Having reached the foregoing conclusions, it is obvious that the court
appellants contend, constitute a series of steps deliberately taken by did not commit the second and third errors imputed to it by the counsel
petitioner with a view to insuring the realization of her plan of securing for appellants. Indeed, petitioner cannot be considered guilty or
the probate of the 1918 will which she believed would better safeguard estoppel which would prevent her from seeking the probate of the 1918
her right to inherit from the decease. will simply because of her effort to obtain the allowance of the 1939
will has failed considering that in both the 1918 and 1939 wills she was
These imputations of fraud and bad faith allegedly committed in in by her husband as his universal heir. Nor can she be charged with
connection with special proceedings No. 8022, now closed and bad faith far having done so because of her desire to prevent the
terminated, are vigorously met by counsel for petitioner who contends intestacy of her husband. She cannot be blamed being zealous in
that to raise them in these proceedings which are entirely new and protecting her interest.
distinct and completely independent from the other is improper and
unfair as they find no support whatsoever in any evidence submitted The next contention of appellants refers to the revocatory clause
by the parties in this case. They are merely based on the presumptions contained in 1939 will of the deceased which was denied probate. They
and conjectures not supported by any proof. For this reason, counsel, contend that, notwithstanding the disallowance of said will, the
contends, the lower court was justified in disregarding them and in revocatory clause is valid and still has the effect of nullifying the prior
passing them sub silentio in its decision. of 1918.

A careful examination of the evidence available in this case seems to Counsel for petitioner meets this argument by invoking the doctrine
justify this contention. There is indeed no evidence which may justify laid down in the case of Samson vs. Naval, (41 Phil., 838). He contends
the insinuation that petitioner had deliberately intended to frustrate the that the facts involved in that case are on all fours with the facts of this
probate of the 1939 will of the deceased to enable her to seek the case. Hence, the doctrine is that case is here controlling.
probate of another will other than a mere conjecture drawn from the
apparently unexpected testimony of Canuto Perez that he went out of There is merit in this contention. We have carefully read the facts
the room to answer an urgent call of nature when Artemio Reyes was involved in the Samson case we are indeed impressed by their striking
signing the will and the failure of petitioner later to impeach the similarity with the facts of this case. We do not need to recite here what
character of said witness in spite of the opportunity given her by the those facts are; it is enough to point out that they contain many points
court to do so. Apart from this insufficiency of evidence, the record and circumstances in common. No reason, therefore, is seen by the
discloses that this failure has been explained by petitioner when she doctrine laid down in that case (which we quote hereunder) should not
informed the court that she was unable to impeach the character of her apply and control the present case.
witness Canuto Perez because of her inability to find witnesses who A subsequent will, containing a clause revoking a previous
may impeach him, and this explanation stands uncontradicted. will, having been disallowed, for the reason that it was not
Whether this explanation is satisfactory or not, it is not now, for us to executed in conformity with the provisions of section 618 of
determine. It is an incident that comes within the province of the the Code of Civil Procedure as to the making of wills, cannot
former case. The failure of petitioner to present the testimony of produce the effect of annulling the previous will, inasmuch
Artemio Reyes at the hearing has also been explained, and it appears as said revocatory clause is void. (41 Phil., 838.)
that petitioner has filed because his whereabouts could not be found.
Whether this is true or not is also for this Court to determine. It is Apropos of this question, counsel for oppositors make the remark that,
likewise within the province and function of the court in the former while they do not disagree with the soundness of the ruling laid down
case. And the unfairness of this imputation becomes more glaring in the Samson case, there is reason to abandon said ruling because it is
when we stock of the developments that had taken place in these archaic or antiquated and runs counter to the modern trend prevailing
proceedings which show in bold relief the true nature of the conduct, in American jurisprudence. They maintain that said ruling is no longer
behavior and character of the petitioner so bitterly assailed and held in controlling but merely represents the point of view of the minority and
disrepute by the oppositors. should, therefore, be abandoned, more so if we consider the fact that
section 623 of our Code of Civil Procedure, which governs the
It should be recalled that the first petition for the probate of the will revocation of wills, is of American origin and as such should follow
executed on June 20, 1939, was filed on February 7, 1941, by the the prevailing trend of the majority view in the United States. A long
petitioner. There being no opposition, the will was probated. line of authorities is cited in support of this contention. And these
Subsequently, however, upon petition of the herein oppositors, the authorities hold the view, that "an express revocation is immediately
order of the court admitting said will to probate was set aside, over the effective upon the execution of the subsequent will, and does not
vigorous opposition of the herein petitioner, and the case was require that it first undergo the formality of a probate proceeding". (p.
reopened. The reopening was ordered because of the strong opposition 63, appellants' brief .
of the oppositors who contended that he will had not been executed as
required by law. After the evidence of both parties had been presented, While they are many cases which uphold the view entertained by
the oppositors filed an extensive memorandum wherein they reiterated counsel for oppositors, and that view appears to be in controlling the

75
states where the decisions had been promulgated, however, we are But counsel for oppositors contemned that, regardless of said
reluctant to fall in line with the assertion that is now the prevailing revocatory clause, said will of 1918 cannot still be given effect because
view in the United States. In the search we have made of American of the presumption that it was deliberately revoked by the testator
authorities on the subject, we found ourselves in a pool of conflicting himself. The oppositors contend that the testator, after executing the
opinions perhaps because of the peculiar provisions contained in the 1939 will, and with full knowledge of the recovatory clause contained
statutes adopted by each State in the subject of revocation of wills. But said will, himself deliberately destroyed the original of the 1918 will,
the impression we gathered from a review and the study of the and for that reason the will submitted by petitioner for probate in these
pertinent authorities is that the doctrine laid down in the Samson case proceedings is only a duplicate of said original.
is still a good law. On page 328 of the American Jurisprudence Vol.
57, which is a revision Published in 1948, we found the following There is no evidence which may directly indicate that the testator
passages which in our opinion truly reflect the present trend of deliberately destroyed the original of the 1918 will because of his
American jurisprudence on this matter affecting the revocation of knowledge of the revocatory clause contained in the will he executed
wills: in 1939. The only evidence we have is that when the first will was
SEC. 471. Observance of Formalities in Execution of executed in 1918, Juan Salcedo, who prepared it, gave the original and
Instrument. Ordinarily, statutes which permit the copies to the testator himself and apparently they remained in his
revocation of a will by another writing provide that to be possession until he executed his second will in 1939. And when the
effective as a revocation, the writing must be executed with 1939 will was denied probate on November 29, 1943, and petitioner
the same formalities which are required to be observed in the was asked by her attorney to look for another will, she found the
execution of a will. Accordingly, where, under the statutes, duplicate copy (Exhibit A) among the papers or files of the testator.
attestation is necessary to the making of a valid will, an She did not find the original.
unattested non testamentary writing is not effective to revoke
a prior will. It has been held that a writing fails as a revoking If it can be inferred that the testator deliberately destroyed the 1918
instrument where it is not executed with the formalities will because of his knowledge of the revocatory clause of the 1939
requisite for the execution of a will, even though it is will, and it is true that he gave a duplicate copy thereof to his wife, the
inscribed on the will itself, although it may effect a herein petitioner, the most logical step for the testator to take is to recall
revocation by cancellation or obliteration of the words of the said duplicate copy in order that it may likewise be destroyed. But this
will. A testator cannot reserve to himself the power to was not done as shown by the fact that said duplicate copy remained
modify a will by a written instrument subsequently prepared in the possession of petitioner. It is possible that because of the long
but not executed in the manner required for a will. lapse of twenty-one (21) years since the first will was executed, the
original of the will had been misplaced or lost, and forgetting that there
SEC, 472. Subsequent Unexecuted, Invalid, or Ineffective was a copy, the testator deemed it wise to execute another will
Will or Codicil. A will which is invalid because of the containing exactly the same testamentary dispositions. Whatever may
incapacity of the testator, or of undue influence can have no be the conclusion we may draw from this chain of circumstances, the
effect whatever as a revoking will. Moreover, a will is not stubborn fact is that there is no direct evidence of voluntary or
revoked by the unexecuted draft of a later one. Nor is a will deliberate destruction of the first will by the testator. This matter
revoked by a defectively executed will or codicil, even cannot be inference or conjectur.
though the latter contains a clause expressly revoking the
former will, in a jurisdiction where it is provided by a Granting for the sake of argument that the earlier will was voluntarily
controlling statute that no writing other than a testamentary destroyed by the testator after the execution of the second will, which
instrument is sufficient to revoke a will, for the simple revoked the first, could there be any doubt, under this theory, that said
reason that there is no revoking will. Similarly where the earlier will was destroyed by the testator in the honest belief that it was
statute provides that a will may be revoked by a subsequent no longer necessary because he had expressly revoked it in his will of
will or other writing executed with the same formalities as 1939? In other words, can we not say that the destruction of the earlier
are required in the execution of wills, a defectively executed will was but the necessary consequence of the testator's belief that the
will does not revoke a prior will, since it cannot be said that revocatory clause contained in the subsequent will was valid and the
there is a writing which complies with the statute. Moreover, latter would be given effect? If such is the case, then it is our opinion
a will or codicil which, on account of the manner in which it that the earlier will can still be admitted to probate under the principle
is executed, is sufficient to pass only personally does not of "dependent relative revocation".
affect dispositions of real estate made by a former will, even This doctrine is known as that of dependent relative
though it may expressly purport to do so. The intent of the revocation, and is usually applied where the testator cancels
testator to revoke is immaterial, if he has not complied with or destroys a will or executes an instrument intended to
the statute. (57 Am. Jur., 328, 329.) revoke a will with a present intention to make a new
testamentary disposition as a substitute for the old, and the
We find the same opinion in the American Law Reports, Annotated, new disposition is not made or, if made, fails of effect for
edited in 1939. On page 1400, Volume 123, there appear many same reason. The doctrine is n limited to the existence of
authorities on the "application of rules where second will is invalid", some other document, however, and has been applied where
among which a typical one is the following: a will was destroyed as a consequence of a mistake of law. .
It is universally agreed that where the second will is invalid . . (68 C.J.P. 799).
on account of not being executed in accordance with the
provisions of the statute, or where the testator who has not The rule is established that where the act of destruction is
sufficient mental capacity to make a will or the will is connected with the making of another will so as fairly to
procured through undue influence, or the such, in other raise the inference that the testator meant the revocation of
words, where the second will is really no will, it does not the old to depend upon the efficacy of a new disposition
revoke the first will or affect it in any manner. Mort vs. intended to be substituted, the revocation will be conditional
Baker University (193-5) 229 Mo. App., 632, 78 S.W. (2d), and dependent upon the efficacy of the new disposition; and
498. if, for any reason, the new will intended to be made as a
substitute is inoperative, the revocation fails and the original
These treaties cannot be mistaken. They uphold the view on which the will remains in full force. (Gardner, pp. 232, 233.)
ruling in the Samson case is predicated. They reflect the opinion that
this ruling is sound and good and for this reason, we see no justification This is the doctrine of dependent relative revocation. The
for abondoning it as now suggested by counsel for the oppositors. failure of a new testamentary disposition upon whose
validity the revocation depends, is equivalent to the non-
It is true that our law on the matter (sec. 623, Code Civil Procedure) fulfillment of a suspensive conditions, and hence prevents
provides that a will may be some will, codicil, or other writing the revocation of the original will. But a mere intent to make
executed as proved in case of wills" but it cannot be said that the 1939 at some time a will in the place of that destroyed will not
will should be regarded, not as a will within the meaning of said word, render the destruction conditional. It must appear that the
but as "other writing executed as provided in the case of wills", simply revocation is dependent upon the valid execution of a new
because it was denied probate. And even if it be regarded as any other will. (1 Alexander, p. 751; Gardner, p. 253.)
writing within the meaning of said clause, there is authority for holding
that unless said writing is admitted to probate, it cannot have the effect We hold therefore, that even in the supposition that the destruction of
of revocation. (See 57 Am. Jur. pp. 329-330). the original will by the testator could be presumed from the failure of
the petitioner to produce it in court, such destruction cannot have the
effect of defeating the prior will of 1918 because of the fact that it is

76
founded on the mistaken belief that the will of 1939 has been validly formerly belonged to Juanito Frias but which passed to Consolacion
executed and would be given due effect. The theory on which this de la Torre upon the latter's death, be declaredas a reservable property
principle is predicated is that the testator did not intend to die intestate. for the reason that the lot in questionn was subject to reserval
And this intention is clearly manifest when he executed two wills on troncal pursuant to Article 981 of the New Civil Code, Private
two different occasion and instituted his wife as his universal heir. respondent as administratrix of the estate of individually the complaint
There can therefore be no mistake as to his intention of dying testate. of petitioners 4

The remaining question to be determined refers to the sufficiency of On July 29, 1986, the respondent Court rendered a decision dismissing
the evidence to prove the due execution of the will. the complaint of petitioner. Hence this instant.

The will in question was attested, as required by law, by three The pertinent provision of reserva troncal under the New Civil Code
witnesses, Lorenzo Morales, Rufino Enriquez, and Angel Cuenca. The provides:
first two witnesses died before the commencement of the present ART. 891. The ascendant who inheritts from his descendant
proceedings. So the only instrumental witness available was Angel any property which the latter may have acquired by
Cuenca and under our law and precedents, his testimony is sufficient gratuitous title from another ascendat, or a brother or sister,
to prove the due execution of the will. However, petitioner presented is obliged to reserve such property as he may have acquired
not only the testimony of Cuenca but placed on the witness stand Juan by operation of law for the benefit of relatives who are within
Salcedo, the notary public who prepared and notarized the will upon the third degree and belong to the line from which said
the express desire and instruction of the testator, The testimony of property came.
these witnesses shows that the will had been executed in the manner
required by law. We have read their testimony and we were impressed Persuant to the foregoing provision, in order that a property may be
by their readiness and sincerity. We are convinced that they told the impressed with a reservable character the following requisites must
truth. exist, to wit: (1) that the property was acquired by a descendant from
an asscendant or from a brother or sister by gratuitous title; (2) that
Wherefore, the order appealed from is hereby affirmed, with costs said descendant died without an issue; (3) that the property is inherited
against the appellants.1wphl.n by another ascendant by operation of law; and (4) that there are
relatives within the third degree belonging to the line from which said
G.R. No. L-29901 August 31, 1977 property came. 5 In the case before Us, all of the foregoing requisites
are present. Thus, as borne out by the records, Juanoito Frias Chua of
IGNACIO FRIAS CHUA, DOMINADOR CHUA and the second marriage died intestate in 1952; he died withour leaving any
REMEDIOS CHUA, petitioners, vs. issue; his pro-indiviso of 1/2 share of Lot No. 399 was acquired by his
THE COURT OF FIRST INSTANCE OF NEGROS mother, Consolacion de la Torre died, Juannnito Frias Chua who died
OCCIDENTAL, BRANCH V and SUSANA DE LA TORRE, in intestate had relatives within the third degree. These relatives are
her capacity as Administratrix of the Intestate Estate of Ignacio Frias Chua and Dominador Chua and Remidios Chua, the
Consolacion de la Torre, respondents. suppose legitimate children of the deceased Lorenzo Frias Chua, who
are the petitioners herein.
MARTIN, J.:
The crux of the problem in instant petition is focused on the first
Petition for review of the decision of the respondent Court which requisit of reserva troncal whether the property in question was
dismissed the complaint of petitioners in Civil Case No. 7839-A, acquired by Juanito Frias Chua from his father Jose Frias Chua,
entitled "Ignacio Frias Chua, et al. vs. Susana de la Torre, gratuitously or not. In resolving this point, the respondent Court said:
Administratrix of the Intestate Estate of Consolacion de la Torre." It appears from Exh. "3", which is part of Exh. "D", that the
property in question was not acquired by Consolacion de la
It appears that in the first marriage of Jose Frias Chua with Patricia S. Torre and Juanito Frias Chua gratuitously but for a
Militar alias Sy Quio he sired three children, namely: Ignacio, Lorenzo consideration, namely, that the legatees were to pay the
and Manuel, all surnamed Frias Chua. When Patricia S. Militar died, interest and cost and other fees resulting from Civil Case No.
Jose Frias Chua contracted a second marriage with Consolacion de la 5300 of this Court. As such it is undeniable that the lot in
Torre with whom he had a child by the name of Juanita Frias Chua. question is not subject tot a reserva troncal, under Art. 891
Manuel Frias Chua died without leaving any issue. Then in 1929, Jose of the New Civil Code, and as such the plaintiff's complaint
Frias Chua died intestate leaving his widow Consolacion de la Torre must fail.
and his son Juanito Frias Chua of the second marriage and sons Ignacio
Frias Chua and Lorenzo Frias Chua of his first marriage. In Intestate We are not prepared to sustain the respondent Court's conclusion that
Proceeding No. 4816, the lower court issued an order dated January the lot in question is not subject to a reserva troncal under Art. 891 of
15, 1931 1 adjudicating, among others, the one-half (1/2,) portion of the New Civil Code. It is, As explained by Manresa which this Court
Lot No. 399 and the sum of P8,000.00 in favor of Jose Frias Chua's quoted with approval in Cabardo v. Villanueva, 44 Phil. 186, "The
widow, Consolacion de la Torre, the other half of Lot No. 399 in favor transmission is gratuitous or by gratuitous title when the recipient does
of Juanito Frias Chua, his son in the second marriage; P3,000.00 in not give anything in return." It matters not whether the property
favor of Lorenze Frias chua; and P1,550.00 in favor of Ignacio Frias, transmitted be or be not subject to any prior charges; what is essential
Chua, his sons of the first marriage. By virtue of said adjudication, is that the transmission be made gratuitously, or by an act of mere
Transfer Certificate of Title No. TR-980 (14483) 2 dated April 28, liberality of the person making it, without imposing any obligation on
1932 was issued by the Register of Deeds in the names of Consolacion the part of the recipient; and that the person receiving the property
de la Torre and Juanito Frias Chua as owners pro-indiviso of Lot No. gives or does nothing in return; or, as ably put by an eminent Filipino
399. commentator, 6 "the essential thing is that the person who transmits it
does so gratuitously, from pure generosity, without requiring from the
On February 27, 1952, Juanito Frias Chua of the second marriage died transferee any prestation." It is evident from the record that the
intestate without any issue. After his death, his mother Consolacion de transmission of the property in question to Juanito Frias Chua of the
la Torre succeeded to his pro-indivisio share of Lot No. 399. In a second marriage upon the death of his father Jose Frias Chua was by
week's time or on March 6, 1952, Consolacion de la Torre executed a means of a hereditary succession and therefore gratuitous. It is true that
declaration of heirship adjudicating in her favor the pro-indiviso share there is the order (Exh. "D") of the probate Court in Intestate
of her son Juanito as a result of which Transfer Certificate of Title No. Proceeding No. 4816 which estates in express terms;
31796 covering the whole Lot No. 399 was issued in her name. Then 2. Se adjudicada pro el presente a favor de Consolacion
on March 5, 1966, Consolacion de la Torre died intestate leaving no de la Torre, viuda, mayor de edad, y de su hiju, Juanito Frias
direct heir either in the descending or ascending line except her brother Chua, menor de edad, todos residente de San Enrique,
and sisters. Negros Occidental, I.F.,como herederos del finado Jose
Frias Chua Choo, estas propiadades:
In the "Intestate Estate of Consolacion de la Torre", docketed as Sp. 14483
Proc. No. 7839-A, the petitioners herein, Ignacio Frias Chua, of the La parcela de terrenno concida por Lote No. 399
first marriage and dominador and Remedios Chua, the supposed del Catsatro de la Carlota, Negros Occidental, de
legitimate children of the deceased Lorenzo Frias Chua, also of the first 191.954 metros cuadddrados y cubierto por el
marriage filed the complaint a quo 3 (subseqently segregated as a Certificado de Titulo No. 11759, en partes equales
distinct suit and docketed as Civil Case No. 7839-A) on May 11, 1966 pro-indiviso; por con la obligscion de pagar a las
before the respondent Court of First Instance of Negros Occidental, Standard Oil Co. of New York la deuda de
Branch V, praying that the one-half (1/2) portion of Lot No. 399 which P3971.20, sus intereses, costas y demas gastos

77
resultantes del asunto civil No. 5300de este herein petitioner, and their two (2) minor sons, Mariano Jesus, Jr. and
jusgado Jesus Salvador, both surnamed Cuenco, all residing at 69 Pi y Margal
St., Sta. Mesa Heights, Quezon City, and by his children of the first
But the obligation of paying the Standard Oil Co. of New York the marriage, respondents herein, namely, Manuel Cuenco, Lourdes
amount of P3,971.20 is imposed upon Consolacion de la Torre and Cuenco, Concepcion Cuenco Manguera, Carmen Cuenco, Consuelo
Juanito Frias Chua not personally by the deceased Jose Frias Chua in Cuenco Reyes and Teresita Cuenco Gonzales, all of legal age and
his last will and testament but by an order of the court in the Testate residing in Cebu.
Proceeding No.4816 dated January 15, 1931. As long as the
transmission of the property to the heirs is free from any condition On 5 March 1964, (the 9th day after the death of the late
imposed by the deceased himself and the property is given out of pure Senator) 1 respondent Lourdes Cuenco filed a Petition for Letters of
generosity, itg is gratuitous. it does not matter if later the court orders Administration with the court of first instance of Cebu (Sp. Proc. No.
one of the heirs, in this case Juanito Frias Chua, to pay the Standare oil 2433-R), alleging among other things, that the late senator
co. of New York the amount of P3,971.20. This does not change the died intestate in Manila on 25 February 1964; that he was a resident of
gratuitous nature of the transmission of the property to him. This being Cebu at the time of his death; and that he left real and personal
the case the lot in question is subject to reserva troncal under Art, 891 properties in Cebu and Quezon City. On the same date, the Cebu court
of the New Civil Code. issued an order setting the petition for hearing on 10 April 1964,
directing that due notice be given to all the heirs and interested persons,
It is contented that the distribution of the shares of the estate of Jose and ordering the requisite publication thereof at LA PRENSA, a
Frias Chua to the respondent heirs or legatees was agreed upon by the newspaper of general circulation in the City and Province of Cebu.
heirs in their project of partition based on the last will and testament of
Jose Frias Chua. But petitioners claim that the supposed Last Will and The aforesaid order, however, was later suspended and cancelled and
Testament of Jose Frias Chua was never probated. The fact that the a new and modified one released on 13 March 1964, in view of the fact
will was not probated was admitted in paragraph 6 of the respondents' that the petition was to be heard at Branch II instead of Branch I of the
answer. 7There is nothing mentioned in the decision of the trial court said Cebu court. On the same date, a third order was further issued
in Civil Case No. 7839 A which is the subject of the present appeal nor stating that respondent Lourdes Cuenco's petition for the appointment
in the order of January 15, 1931 of the trial court in the Testate Estate of a special administrator dated 4 March 1964 was not yet ready for
Proceeding No. 4816 nor in the private respondent's brief, that the Last the consideration of the said court, giving as reasons the following:
Will and Testament of Jose Frias Chua has ever been probated. With It will be premature for this Court to act thereon, it not
the foregoing, it is easy to deduce that if the Last Will and Testament having yet regularly acquired jurisdiction to try this
has in fact been probated there would have been no need for the proceeding, the requisite publication of the notice of hearing
testamentary heirs to prepare a project of partition among themselves. not yet having been complied with. Moreover, copies of the
The very will itself could be made the basis for the adjudication of the petition have not been served on all of the heirs specified in
estate as in fact they did in their project of partition with Juanito Frias the basic petition for the issuance of letters of
Chua getting one-half of Lot 399 by inheritance as a sone of the administration. 2
deceased Jose Frias Chua by the latter's second marriage.
In the meantime, or specifically on 12 March 1964, (a week after the
According to the record, Juanito Frias Chua died on February 27, 1952 filing of the Cebu petition) herein petitioner Rosa Cayetano Cuenco
without any issue. After his death his mother Consolation de la Torre filed a petition with the court of first instance of Rizal (Quezon City)
succeeded to his one-half pro-indiviso share of Lot 399. This was, for the probate of the deceased's last will and testament and for the
however, subject to the condition that the property was reservable in issuance of letters testamentary in her favor, as the surviving widow
character under Art. 891 of the Civil Code in favor of relatives within and executrix in the said last will and testament. The said proceeding
the third degree of Jose Frias Chua from whom the property came. was docketed as Special Proceeding No. Q-7898.
These relatives are the petitioner herein.
Having learned of the intestate proceeding in the Cebu court, petitioner
It is claimed that the complaint of petitioners to recover the one-half Rosa Cayetano Cuenco filed in said Cebu court an Opposition and
portion of Lot 399 which originally belonged to Juanito Frias Chua has Motion to Dismiss, dated 30 March 1964, as well as an Opposition to
already prescribed when it was filed on May 11, 1966. We do not Petition for Appointment of Special Administrator, dated 8 April 1964.
believe so. It must be remembered that the petitioners herein are On 10 April 1964, the Cebu court issued an order holding in abeyance
claiming as reservees did not arise until the time the reservor, its resolution on petitioner's motion to dismiss "until after the Court of
Consolacion de la Torre, died in March 1966. When the petitioners First Instance of Quezon City shall have acted on the petition
therefore filed their complaint to recover the one-half (1/2) portion of for probate of that document purporting to be the last will and
Lot 399, they were very much in time to do so. testament of the deceased Don Mariano Jesus Cuenco." 3 Such order of
the Cebu court deferring to the probate proceedings in the Quezon
IN VIEW OF THE FOREGOING, the decision appealed from is City court was neither excepted to nor sought by respondents to be
hereby set aside. The petitioners Ignacio Frias Chua, Dominador Chua reconsidered or set aside by the Cebu court nor did they challenge the
and Remedios Chua are declared owners of 1/2 undivided portion of same by certiorari or prohibition proceedings in the appellate courts.
Lot 399; and the Register of Deeds of Negros Occidental is hereby
ordered to cancel. Transfer Certificate of Title No. 31796 covering Lot Instead, respondents filed in the Quezon City court an Opposition and
No. 399 issued in the name of Consolacion de la Torre and to issue a Motion to Dismiss, dated 10 April 1964, opposing probate of the will
new Certificate of Title in the names of Consolacion de la Torre, 1/2 and assailing the jurisdiction of the said Quezon City court to entertain
undivided portion; Ignacio Frias Chua, 1/4 undivided portion; and petitioner's petition for probate and for appointment as executrix in Sp.
Dominador Chua and Remedios Chua, 1/4 undivided portion, of said Proc. No. Q-7898 in view of the alleged exclusive jurisdiction vested
lot. Without pronouncement as to costs. SO ORDERED. by her petition in the Cebu court in Sp. Proc. No. 2433-R. Said
respondent prayed that Sp. Proc. No. Q-7898 be dismissed for lack of
G.R. No. L-24742 October 26, 1973 jurisdiction and/or improper venue.

ROSA CAYETANO CUENCO, petitioners, vs. In its order of 11 April 1964, the Quezon City court denied the motion
THE HONORABLE COURT OF APPEALS, THIRD to dismiss, giving as a principal reason the "precedence of probate
DIVISION, MANUEL CUENCO, LOURDES CUENCO, proceeding over an intestate proceeding." 4 The said court further
CONCEPCION CUENCO MANGUERRA, CARMEN found in said order that the residence of the late senator at the time of
CUENCO, CONSUELO CUENCO REYES, and TERESITA his death was at No. 69 Pi y Margal, Sta. Mesa Heights, Quezon City.
CUENCO GONZALEZ, respondents. The pertinent portion of said order follows:
On the question of residence of the decedent, paragraph 5 of
TEEHANKEE, J.: the opposition and motion to dismiss reads as follows: "that
since the decedent Don Mariano Jesus Cuenco was a resident
Petition for certiorari to review the decision of respondent Court of of the City of Cebu at the time of his death, the aforesaid
Appeals in CA-G.R. No. 34104-R, promulgated 21 November 1964, petition filed by Rosa Cayetano Cuenco on 12 March 1964
and its subsequent Resolution promulgated 8 July 1964 denying was not filed with the proper Court (wrong venue) in view
petitioner's Motion for Reconsideration. of the provisions of Section 1 of Rule 73 of the New Rules
of Court ...". From the aforequoted allegation, the Court is
The pertinent facts which gave rise to the herein petition follow: made to understand that the oppositors do not mean to say
On 25 February 1964 Senator Mariano Jesus Cuenco died at the that the decedent being a resident of Cebu City when he died,
Manila Doctors' Hospital, Manila. He was survived by his widow, the the intestate proceedings in Cebu City should prevail over

78
the probate proceedings in Quezon City, because as stated or did not leave a valid will, and (2) whether or not the
above the probate of the will should take precedence, but that decedent was a resident of Cebu at the time of his death.
the probate proceedings should be filed in the Cebu City
Court of First Instance. If the last proposition is the desire of Considering therefore that the first proceeding was instituted
the oppositors as understood by this Court, that could not in the Cebu CFI (Special Proceeding 2433-R), it follows that
also be entertained as proper because paragraph 1 of the the said court must exercise jurisdiction to the exclusion of
petition for the probate of the will indicates that Don the Rizal CFI, in which the petition for probate was filed by
Mariano Jesus Cuenco at the time of his death was a resident the respondent Rosa Cayetano Cuenco (Special Proceeding
of Quezon City at 69 Pi y Margal. Annex A (Last Will and Q-7898). The said respondent should assert her rights within
Testament of Mariano Jesus Cuenco) of the petition for the framework of the proceeding in the Cebu CFI, instead of
probate of the will shows that the decedent at the time when invoking the jurisdiction of another court.
he executed his Last Will clearly stated that he is a resident
of 69 Pi y Margal, Sta. Mesa Heights, Quezon City, and also The respondents try to make capital of the fact that on March
of the City of Cebu. He made the former as his first choice 13, 1964, Judge Amador Gomez of the Cebu CFI, acting in
and the latter as his second choice of residence." If a party Sp. Proc. 2433-R, stated that the petition for appointment of
has two residences, the one will be deemed or presumed to special administrator was "not yet ready for the
his domicile which he himself selects or considers to be his consideration of the Court today. It would be premature for
home or which appears to be the center of his affairs. The this Court to act thereon, it not having yet regularly acquired
petitioner, in thus filing the instant petition before this Court, jurisdiction to try this proceeding ... . " It is sufficient to state
follows the first choice of residence of the decedent and once in this connection that the said judge was certainly not
this court acquires jurisdiction of the probate proceeding it referring to the court's jurisdiction over the res, not to
is to the exclusion of all others. 5 jurisdiction itself which is acquired from the moment a
petition is filed, but only to the exercise of jurisdiction in
Respondent Lourdes Cuenco's motion for reconsideration of the relation to the stage of the proceedings. At all events,
Quezon City court's said order of 11 April 1964 asserting its exclusive jurisdiction is conferred and determined by law and does not
jurisdiction over the probate proceeding as deferred to by the Cebu depend on the pronouncements of a trial judge.
court was denied on 27 April 1964 and a second motion for
reconsideration dated 20 May 1964 was likewise denied. The dispositive part of respondent appellate court's judgment provided
as follows:
On 11 May 1964, pursuant to its earlier order of 11 April 1964, the ACCORDINGLY, the writ of prohibition will issue,
hearing for probate of the last will of the decedent was called three commanding and directing the respondent Court of First
times at half-hour intervals, but notwithstanding due notification none Instance of Rizal, Branch IX, Quezon City, and the
of the oppositors appeared and the Quezon City court