CASE DIGEST: CASIANO V.

CA (158 SCRA 451)

Published by paul on July 2, 2013 | Leave a response
Casiano v. CA
158 SCRA 451
FACTS:
On October 20, 1963, Adriana Maloto died leaving as heirs her niece and nephews, the
petitioners Aldina Maloto-Casiano and Constancio, Maloto, and the private respondents
Panfilo Maloto and Felino Maloto. Believing that the deceased did not leave behind a last will
and testament, these four heirs commenced on November 4, 1963 an intestate proceeding for
the settlement of their aunts estate in the CFI of Iloilo. While the case was still pending the
parties Aldina, Constancio, Panfilo, and Felino executed an agreement of extrajudicial
settlement of Adrianas estate. The agreement provided for the division of the estate into four
equal parts among the parties. The Malotos then presented the extrajudicial settlement
agreement to the trial court for approval which the court did on March 21, 1964.
3 years later, Atty. Sulpicio Palma, a former associate of Adrianas counsel, the late
Atty. Eliseo Hervas, discovered a document entitled KATAPUSAN NGA PAGBUBULAT-AN
(Testamento), dated January 3,1940, and purporting to be the last will and testament of
Adriana. Atty. Palma claimed to have found the testament, the original copy, while he was
going through some materials inside the cabinetdrawer formerly used by Atty. Hervas.
The document was submitted to the clerk of court of the Iloilo CFI. Incidentally, while Panfilo
and Felino are still named as heirs in the said will, Aldina and Constancio are bequeathed
much bigger and more valuable shares in the estate of Adriana than what they received by
virtue of the agreement of extrajudicial settlement they had earlier signed. The will likewise
gives devises and legacies to other parties, among them being the petitioners Asilo de Molo,
the Roman Catholic Church of Molo, and Purificacion Miraflor.
Aldina and Constancio, joined by the other devisees and legatees named in the will, filed in
the same court which approved the EJ settelement a motion for reconsideration and
annulment of the proceedings therein and for the allowance of the will which was denied by
the CFI. Upon petition to the SC for certiorari and mandamus, the SC dismissed that petition
and advised that a separate proceeding for the probate of the alleged will would be the
appropriate vehicle to thresh out the matters raised by the petitioners. The CFI and CA found
that the will to be probated had been revoked by the burning thereof by the housemaid upon
instruction of the testatrix.
ISSUE:
W/N the will was revoked by Adriana.
HELD:
No. The provisions of the new Civil Code pertinent to the issue can be found in Article 830.
The physical act of destruction of a will, like burning in this case, does not per se constitute an
effective revocation, unless the destruction is coupled with animus revocandi on the part of
the testator. It is not imperative that the physical destruction be done by the testator himself.
It may be performed by another person but under the express direction and in the presence of
the testator. Of course, it goes without saying that the document destroyed must be the will
itself.
Animus revocandi is only one of the necessary elements for the effective revocation of a last
will and testament. The intention to revoke must be accompanied by the overt physical act of
burning, tearing, obliterating, or cancelling the will carried out by the testator or by another
person in his presence and under his express direction.

1
There is paucity of evidence to show compliance with these requirements. For one,
the document or papers burned by Adrianas maid, Guadalupe, was not satisfactorily
established to be a will at all, much less the will of Adriana Maloto. For another, the burning
was not proven to have been done under the express direction of Adriana. And then, the
burning was not in her presence. Both witnesses, Guadalupe and Eladio, were one in stating
that they were the only ones present at the place where the stove (presumably in the kitchen)
was located in which the papers proffered as a will were burned.
The two witnesses were illiterate and does not appear to be unequivocably positive that
the document burned was indeed Adrianas will. Guadalupe believed that the papers she
destroyed was the will only because, according to her, Adriana told her so. Eladio, on the other
hand, obtained his information that the burned documentwas the will because Guadalupe told
him so, thus, his testimony on this point is double hearsay.
It is an important matter of public interest that a purported win is not denied legalization on
dubious grounds. Otherwise, the very institution of testamentary succession will be shaken to
its very foundations.
Molo v. Molo Digest
Molo vs. Molo
G.R. No. L-2538 September 21, 1951
Bautista Angelo, J. (Ponente)

Doctrine of Dependent Relative Revocation

Facts:
1. Marcos Molo executed 2 wills, one in August 1918 and another in June 1939. The latter
will contained a revocation clause which expressly revoked the will in 1918. He died without
any forced heirs but he was survived by his wife, herein petitioner Juana. The oppositors to
the probate were his nephews and nieces.

2. Only a carbon copy of the second will was found. The widow filed a petition for the probate
of the 1939 will. It was admitted to probate but subsequently set aside on ground that the
petitioner failed to prove its due execution.

3. As a result, the petitioner filed another petition for the probate of the 1918 will this time.
Again the oppositors alleged that said will had already been revoked under the 1939 will.
They contended that despite the disallowance of the 1939 will, the revocation clause is valid
and thus effectively nullified the 1918 will.

Issue: Whether or not the 1918 will can still be valid despite the revocation in the
subsequent disallowed 1939 will

RULING: Yes.The court applied the doctrine laid down in Samson v. Naval that a subsequent
will,containing a clause revoking a previous will, having been disallowed for the reason that it

2
was not executed in accordance with law cannot produce the effect of annulling the previous
will, inasmuch as the said revocatory clause is void.

There was no valid revocation in this case. No evidence was shown that the testator
deliberately destroyed the original 1918 will because of his knowledge of the revocatory
clause contained in the will executed in 1939.The earlier will can still be probated under
the principle of dependent relative revocation.The doctrine applies when a testator
cancels or destroys a will or executes an instrument intended to revoke a will with the
intention to make a new testamentary disposition as substitute for the old, and the new
disposition fails of effect for some reason.
TESTATE ESTATE OF THE DECEASED MARIANO MOLO Y LEGASPI. JUANA
JUAN VDA. DE MOLO v. LUZ, GLICERIA AND CORNELIO MOLO
G.R. No. L-2538 September 21, 1951
Facts:
Mariano Molo y Legaspi died on January 24, 1941, in the municipality of Pasay, province of
Rizal, without leaving any forced heir either in the descending or ascending line. He was
survived, however, by his wife, the herein petitioner Juana Juan Vda. de Molo, and by his
nieces and nephew, the oppositors-appellants, Luz Gliceria and Cornelio, all surnamed Molo,
who were the legitimate children of Candido Molo y Legaspi, deceased brother of the testator.
Mariano Molo y Legaspi left two wills, one executed on August 17, 1918 and another executed
on June 20, 1939.
On February 7, 1941, Juana Juan Vda. de Molo, filed in the Court of First Instance of Rizal a
petition, seeking the probate of the will executed by the deceased on June 20, 1939. There
being no opposition, the will was probated. However, upon petition filed by the herein
oppositors, the order of the court admitting the will to probate was set aside and the case was
reopened. After hearing, at which both parties presented their evidence, the court rendered
decision denying the probate of said will on the ground that the petitioner failed to prove that
the same was executed in accordance with law.
In view of the disallowance of the will executed on June 20, 1939, the widow on February 24,
1944, filed another petition for the probate of the will executed by the deceased on August 17,
1918, in the same court. Again, the same oppositors filed an opposition to the petition based
on three grounds: (1) that petitioner is now estopped from seeking the probate of the will of
1918; (2) that said will has not been executed in the manner required by law and (3) that the
will has been subsequently revoked.
Issues:
1. Was Molos will of 1918 subsequently revoked by his will of 1939?
2. Assuming that the destruction of the earlier will was but the necessary consequence of
the testators belief that the revocatory clause contained in the subsequent will was
valid and the latter would be given effect, can the earlier will be admitted to probate?
Doctrines:
1. NO. In the case of Samson vs. Naval, the court laid down the doctrine that a
subsequent will, containing a clause revoking a previous will, having been disallowed,
for the reason that it was not executed in conformity with the provisions of section 618
of the Code of Civil Procedure as to the making of wills, cannot produce the effect of
annulling the previous will, inasmuch as said revocatory clause is void.
Although American authorities on the subject have a pool of conflicting opinions perhaps
because of the peculiar provisions contained in the statutes adopted by each State in the

3
subject of revocation of wills, the court is of the impression from a review and the study of the
pertinent authorities that the doctrine laid down in the Samson case is still a good law.
1. YES. The earlier will can still be admitted to probate under the principle of dependent
relative revocation. The failure of a new testamentary disposition upon whose validity
the revocation depends, is equivalent to the non-fulfillment of a suspensive condition,
and hence prevents the revocation of the original will. But a mere intent to make at
some time a will in the place of that destroyed will not render the destruction
conditional. It must appear that the revocation is dependent upon the valid execution
of a new will.
2.
CASE DIGEST: RODELAS V. ARANZA (119 SCRA 16)
3. Published by paul on July 1, 2013 | Leave a response
4. Rodelas v. Aranza
119 SCRA 16
5. FACTS:
6. Rodelas filed a petition with the CFI of Rizal for the probate of the holographic will of
Ricardo B. Bonilla and the issuance of letters testamentary in her favor.
Aranza, et al. filed a MTD on the grounds of:
7. 1.Rodelas was estopped from claiming that the deceased left a will by failing to produce
the will within twenty days of the death of the testator as required by Rule 75, section 2
of the Rules of Court;
8. 2.the copy of the alleged holographic will did not contain a disposition of property after
death and was not intended to take effect after death, and therefore it was not a will, it
was merely an instruction as to the management and improvement of the schools and
colleges founded by the decedent;
9. 3.the hollographic will itself, and not an alleged copy thereof, must be produced,
otherwise it would produce no effect because lost or destroyed holographic wills cannot
be proved by secondary evidence unlike ordinary wills.
10. 4.the deceased did not leave any will, holographic or otherwise, executed and attested
as required by law.
11. MTD was denied. Aranza et al. filed an MR, Rodelas filed an opposition.
12. The CFI set aside its order and dismissed the petition for the probate of the will stating
that in the case of Gam vs. Yap, 104 Phil. 509, 522, the Supreme Court held that in the
matter of holographic wills the law, it is reasonable to suppose, regards
the document itself as the material proof of authenticity of said wills.
13. And that the alleged holographic will was executed on January 25, 1962 while Ricardo
B. Bonilla died on May 13, 1976. The lapse of more than 14 years from the time of the
execution of the will to the death of the decedent and the fact that the original of the
will could not be located shows to that the decedent had discarded the alleged
holographic will before his death.
14. Rodelas filed an MR which was denied. Rodelas appealed to the CA. Aranza et al.
moved to forward the case to the SC as it involves a question of law not of fact.
15.ISSUE:
16. W/N a holographic will which was lost or cannot be found can be proved by means of a
photostatic copy.
17. HELD:
18. If the holographic will has been lost or destroyed and no other copy is available, the will
cannot be probated because the best and only evidence is the handwriting of the

4
 testator in said will. It is necessary that there be a comparison between
sample handwritten statements of the testator and the handwritten will.
19. But, a photostatic copy or xerox copy of the holographic will may be allowed
because comparison can be made by the probate court with the standard writings of the
testator. The probate court would be able to determine the authenticity of the
handwriting of the testator.
20.In the case of Gam vs. Yap, 104 PHIL. 509, the Court ruled that the execution and
the contents of a lost or destroyed holographic will may not be proved by the bare
testimony of witnesses who have seen and/or read such will. The will itself must be
presented; otherwise, it shall produce no effect. The law regards the document itself as
material proof of authenticity. But, in Footnote 8 of said decision, it says that Perhaps
it may be proved by a photographic or photostatic copy. Even a mimeographed
or carbon copy; or by other similar means, if any, whereby the authenticity of the
handwriting of the deceased may be exhibited and tested before the probate court,
Rodelas v. Aranza Digest
Rodelas v. Aranza
G.R. No. L-58509 December 7, 1982
Relova, J. (Ponente)

Facts:
1. The appellant filed a petition for the probate of the holographic will of Ricardo Bonilla in
1977. The petition was opposed by the appellees on the ground that the deceased did not
leave any will, holographic or otherwise.

2. The lower court dismissed the petition for probate and held that since the original will was
lost, a photostatic copy cannot stand in the place of the original.

Issue: Whether or not a holographic will can be proved by means of a photocopy

RULING: Yes. A photocopy of the lost or destroyed holographic will may be admitted because
the authenticity of the handwriting of the deceased can be determined by the probate court
with the standard writings of the testator.

CASE DIGEST: AZAOLA V. SINGSON (109 P 102)

Published by paul on July 2, 2013 | Leave a response
Azaola v. Singson
109 P 102
FACTS:
Fortunata S. Vda. De Yance died in Quezon City on September 9, 1957. Petitioner submitted
for probate her holographic will, in which Maria Azaola was made the sole heir as against
the nephew, who is the defendant. Only one witness, Francisoco Azaola, was presented to

5
testify on the handwriting of the testatrix. He testified that he had seen it one month, more or
less, before the death of the testatrix, as it was given to him and his wife; and that it was in the
testatrixs handwriting. He presented the mortgage, the special power of the attorney, and
the general power of attorney, and the deeds of sale including an affidavit to reinforce his
statement. Two residence certificates showing the testatrixs signature were also exhibited
for comparison purposes.
The probate was opposed on the ground that (1) the execution of the will was procured by
undue and improper pressure and influence on the part of the petitioner and his wife, and (2)
that the testatrix did not seriously intend the instrument to be her last will, and that the same
was actually written either on the 5th or 6th day of August 1957 and not on November 20,
1956 as appears on the will.
The probate was denied on the ground that under Article 811 of the Civil Code, the proponent
must present three witnesses who could declare that the will and the signature are in the
writing of the testatrix, the probate being contested; and because the lone witness presented
did not prove sufficiently that the body of the will was written in the handwriting of the
testatrix.
Petitioner appealed, urging: first, that he was not bound to produce more than one witness
because the wills authenticity was not questioned; and second, that Article 811 does not
mandatorily require the production of three witnesses to identify the handwriting and
signature of a holographic will, even if its authenticity should be denied by the adverse party.
ISSUE:
W/N Article 811 of the Civil Code is mandatory or permissive.
HELD:
Article 811 is merely permissive and not mandatory. Since the authenticity of the will was not
contested, petitioner was not required to produce more than one witness; but even if the
genuineness of the holographic will were contested, Article 811 can not be interpreted to
require the compulsory presentation of three witnesses to identify the handwriting of the
testator, under penalty of having the probate denied. Since no witness may have been present
at the execution of a holographic will, none being required by law (Art. 810, new Civil Code), it
becomes obvious that the existence of witness possessing the requisite qualifications is a
matter beyond the control of the proponent. For it is not merely a question of finding and
producing any three witnesses; they must be witnesses who know the handwriting and
signature of the testator and who can declare (truthfully, of course, even if the law does not
so express) that the will and the signature are in the handwriting of the testator. There may
be no available witness of the testators hand; or even if so familiarized, the witnesses may be
unwilling to give a positive opinion. Compliance with the rule of paragraph 1 of Article 811
may thus become an impossibility.
This is the reason why the 2nd paragraph of Article 811 allows the court to resort to expert
evidence. The law foresees the possibility that no qualified witness may be found (or
what amounts to the same thing, that no competent witness may be willing to testify to the
authenticity of the will), and provides for resort to expert evidence to supply the deficiency.
What the law deems essential is that the court should be convinced of the wills authenticity.
Where the prescribed number of witnesses is produced and the court is convinced by
their testimony that the will is genuine, it may consider it unnecessary to call for expert
evidence. On the other hand, if no competent witness is available, or none of those produced
is convincing, the Court may still, and in fact it should, resort to handwriting experts. The
duty of the Court, in fine, is to exhaust all available lines of inquiry, for the state is as much
interested as the proponent that the true intention of the testator be carried into effect.

6
 Federico Azaola v. Cesario Singson
G.R. No. L-14003; August 5, 1960
FACTS:
When Fortunata Vda de Yance died, Francisco Azaola filed a petition for the
probate of the formers will, whereby Maria Milgaros Azaola was made the sole
heir as against the nephew of the deceased Cesario Singson. Francisco witnessed
that one month before the death of the testator, the same was handed to him and
his wife.
The opposition to the probate was on the ground that (1) the execution of the will
was procured by undue and improper pressure and influence on the part of the
petitioner and his wife, and (2) that the testatrix did not seriously intend the
instrument to be her last will, and that the same was actually written either on the
5th or 6th day of August 1957and not on November 20, 1956 as appears on the
will.
The probate was denied on the ground that under Article 811 of the Civil Code,
the proponent must present three witnesses who could declare that the will and
the signature are in the writing of the testatrix, the probate being contested.
ISSUE/S:
1. WON the proponent was bound to produce more than one witness
2. WON 811 is mandatory
HELD:
1. No. Since the authenticity of the will was not being contested. But even if the
genuineness of the holographic will were contested, we are of the opinion that
Article 811 of our present Civil Code cannot be interpreted as to require the
compulsory presentation of three witnesses to identify the handwriting of the
testator, under penalty of having the probate denied. Since no witness may have
been present at the execution of a holographic will, none being required by law
(Art. 810, new Civil Code), it becomes obvious that the existence of witness
possessing the requisite qualifications is a matter beyond the control of the
proponent.
It may be true that the rule of this article (requiring that three witnesses be
presented if the will is contested and only one if no contest is had) was derived
from the rule established for ordinary testaments. But it cannot be ignored that
the requirement can be considered mandatory only in the case of ordinary
testaments, precisely because the presence of at least three witnesses at the
execution of ordinary wills is made by law essential to their validity (Art. 805).
Where the will is holographic, no witness need be present (Art. 10), and the rule
requiring production of three witnesses must be deemed merely permissive if
absurd results are to be avoided.
Again, under Article 811, the resort to expert evidence is conditioned by the words
if the Court deem it necessary, which reveal that what the law deems essential
is that the Court should be convinced of the wills authenticity. Where the
prescribed number of witnesses is produced and the court is convinced by their
testimony that the ill is genuine, it may consider it unnecessary to call for expert
evidence. On the other hand, if no competent witness is available, or none of
those produced is convincing, the Court may still, and in fact it should, resort to
handwriting experts. The duty of the Court, in fine, is to exhaust all available lines

7
 of inquiry, for the state is as much interested as the proponent that the true
intention of the testator be carried into effect.
2. The rule of the first paragraph of Article 811 of the Civil Code is merely
directory and is not mandatory.
Considering, however, that this is the first occasion in which this Court has been
called upon to construe the import of said article, the interest of justice would be
better served, in our opinion, by giving the parties ample opportunity to adduce
additional evidence, including expert witnesses, should the Court deem them
necessary.

Cuenco vs. CA
on 7:00 AM in Case Digests, Remedial Law
0
G.R. No. L-24742, October 26, 1973

o The court first taking cognizance of the settlement of the estate of a

decedent, shall exercise jurisdiction to the exclusion of all other courts

FACTS:

Senator Mariano Jesus Cuenco died in Manila. He was survived by his widow and
two minor sons, residing in Quezon City, and children of the first marriage,
residing in Cebu. Lourdes, one of the children from the first marriage, filed a
Petition for Letters of Administration with the Court of First Instance (CFI) Cebu,
alleging that the senator died intestate in Manila but a resident of Cebu with
properties in Cebu and Quezon City.

The petition still pending with CFI Cebu, Rosa Cayetano Cuenco, the second wife,
filed a petition with CFI Rizal for the probate of the last will and testament, where
she was named executrix. Rosa also filed an opposition and motion to dismiss in
CFI Cebu but this court held in abeyance resolution over the opposition until CFI
Quezon shall have acted on the probate proceedings.

Lourdes filed an opposition and motion to dismiss in CFI Quezon, on ground of lack
of jurisdiction and/or improper venue, considering that CFI Cebu already acquired
exclusive jurisdiction over the case. The opposition and motion to dismiss were
denied. Upon appeal CA ruled in favor of Lourdes and issued a writ of prohibition
to CFI Quezon.

ISSUEs:

o Whether or not CA erred in issuing the writ of prohibition

o Whether or not CFI Quezon acted without jurisdiction or grave abuse of
discretion in taking cognizance and assuming exclusive jurisdiction over the
probate proceedings in pursuance to CFI Cebu's order expressly consenting in
deference to the precedence of probate over intestate proceedings
8
HELD:

The Supreme Court found that CA erred in law in issuing the writ of prohibition
against the Quezon City court from proceeding with the testate proceedings and
annulling and setting aside all its orders and actions, particularly its admission to
probate of the last will and testament of the deceased and appointing petitioner-
widow as executrix thereof without bond pursuant to the deceased testator's wish.

On Venue and Jurisdiction

Under Rule 73, the court first taking cognizance of the settlement of the estate of
a decent, shall exercise jurisdiction to the exclusion of all other courts.

The residence of the decent or the location of his estate is not an element of
jurisdiction over the subject matter but merely of venue. If this were otherwise, it
would affect the prompt administration of justice.

The court with whom the petition is first filed must also first take cognizance of
the settlement of the estate in order to exercise jurisdiction over it to the
exclusion of all other courts.

CASE DIGEST: CODOY V. CALUGAY (312 SCRA 333)

Published by paul on July 2, 2013 | Leave a response
Codoy v. Calugay
312 SCRA 333
FACTS:
On 6 April 1990, Evangeline Calugay, Josephine Salcedo and Eufemia Patigas, devisees and
legatees of the holographic will of the deceased Matilde Seo Vda. de Ramonal, filed a petition
for probate of the said will. They attested to the genuineness and due execution of the will on
30 August 1978.
Eugenio Ramonal Codoy and Manuel Ramonal filed their opposition claiming that the will
was a forgery and that the same is even illegible. They raised doubts as regards the repeated
appearing on the will after every disposition, calling the same out of the ordinary. If the will
was in the handwriting of the deceased, it was improperly procured.
Evangeline Calugay, etc. presented 6 witnesses and various documentary evidence.
The first witness was the clerk of court of the probate court who produced and identified the
records of the case bearing the signature of the deceased.
The second witness was election registrar who was made to produce and identify the voters
affidavit, but failed to as the same was already destroyed and no longer available.
The third, the deceaseds niece, claimed that she had acquired familiarity with the deceaseds
signature and handwriting as she used to accompany her in collecting rentals from
her various tenants of commercial buildings and the deceased always issued receipts. The
niece also testified that the deceased left a holographic will entirely written, dated and signed
by said deceased.
The fourth witness was a former lawyer for the deceased in the intestate proceedings of her
late husband, who said that the signature on the will was similar to that of the deceased but
that he can not be sure.

9
The fifth was an employee of the DENR who testified that she was familiar with the signature
of the deceased which appeared in the latters application for pasture permit. The fifth,
respondent Evangeline Calugay, claimed that she had lived with the deceased since birth
where she had become familiar with her signature and that the one appearing on the will was
genuine.
Codoy and Ramonals demurrer to evidence was granted by the lower court. It was reversed
on appeal with the Court of Appeals which granted the probate.
ISSUE:
1. W/N Article 811 of the Civil Code, providing that at least three witnesses explicitly declare
the signature in a contested will as the genuine signature of the testator, is mandatory or
directory.
2. Whether or not the witnesses sufficiently establish the authenticity and due execution of the
deceaseds holographic will.
HELD:
1. YES. The word shall connotes a mandatory order, an imperative obligation and is
inconsistent with the idea of discretion and that the presumption is that the word shall,
when used in a statute, is mandatory.
In the case at bar, the goal to be achieved by the law, is to give effect to the wishes of the
deceased and the evil to be prevented is the possibility that unscrupulous individuals who for
their benefit will employ means to defeat the wishes of the testator.
The paramount consideration in the present petition is to determine the true intent of the
deceased.
2. NO. We cannot be certain that the holographic will was in the handwriting of the deceased.
The clerk of court was not presented to declare explicitly that the signature appearing in the
holographic will was that of the deceased.
The election registrar was not able to produce the voters affidavit for verification as it was no
longer available.
The deceaseds niece saw pre-prepared receipts and letters of the deceased and did not declare
that she saw the deceased sign a document or write a note.
The will was not found in the personal belongings of the deceased but was in the possession of
the said niece, who kept the fact about the will from the children of the deceased, putting in
issue her motive.
Evangeline Calugay never declared that she saw the decreased write a note or sign
a document.
The former lawyer of the deceased expressed doubts as to the authenticity of the signature in
the holographic will.
(As it appears in the foregoing, the three-witness requirement was not complied with.)
A visual examination of the holographic will convinces that the strokes are different when
compared with other documents written by the testator.
The records are remanded to allow the oppositors to adduce evidence in support of their
opposition.
The object of solemnities surrounding the execution of wills is to close the door against bad
faith and fraud, to avoid substitution of wills and testaments and to guaranty their truth and
authenticity. Therefore, the laws on this subject should be interpreted in such a way as to
attain these primordial ends. But, on the other hand, also one must not lose sight of the fact
that it is not the object of the law to restrain and curtail the exercise the right to make a will.
However, we cannot eliminate the possibility of a false document being adjudged as the will of
the testator, which is why if the holographic will is contested, the law requires three witnesses
to declare that the will was in the handwriting of the deceased.

10
Article 811, paragraph 1. provides: In the probate of a holographic will, it shall be necessary
that at least one witness who knows the handwriting and signature of the testator explicitly
declare that the will and the signature are in the handwriting of the testator. If the will is
contested, at least three of such witnesses shall be required.
The word shall connotes a mandatory order, an imperative obligation and is inconsistent
with the idea of discretion and that the presumption is that the word shall, when used in a
statute, is mandatory.

CASE DIGEST: ROBERTS V. LEONIDAS (129 SCRA 754)

Published by paul on July 2, 2013 | Leave a response
Roberts v. Leonidas
129 SCRA 754
FACTS:
Grimm, an American resident of Manila, died in 1977. He was survived by his second wife
(Maxine), their two children (Pete and Linda), and by his two children by a first marriage
(Juanita and Ethel) which ended by divorce.
Grimm executed two wills in San Francisco, California on January 23, 1959. One will disposed
of his Philippine estate described as conjugal property of himself and his second wife. The
second will disposed of his estate outside the Philippines. The two wills and a codicil were
presented for probate in Utah by Maxine on March 1978. Maxine admitted that she received
notice of the intestate petition filed in Manila by Ethel in January 1978. The Utah Court
admitted the two wills and codicil to probate on April 1978 and was issued upon consideration
of the stipulation between the attorneys for Maxine and Ethel.
Also in April 1978, Maxine and Ethel, with knowledge of the intestate proceeding in Manila,
entered into a compromise agreement in Utah regarding the estate.
As mentioned, in January 1978, an intestate proceeding was instituted by Ethel. On March
1978, Maxine filed an opposition and motion to dismiss the intestate proceeding on the
ground of pendency of the Utah probate proceedings. She submitted to the court a copy of
Grimms will. However, pursuant to the compromise agreement, Maxine withdrew the
opposition and the motion to dismiss. The court ignored the will found in the record.The
estate was partitioned.
In 1980, Maxine filed a petition praying for the probate of the two wills (already probated in
Utah), that the partition approved by the intestate court be set aside and the letters of
administration revoked, that Maxine be appointed executrix and Ethel be ordered to account
for the properties received by them and return the same to Maxine. Maxine alleged that they
were defrauded due to the machinations of Ethel, that the compromise agreement was illegal
and the intestate proceeding was void because Grimm died testate so partition was contrary to
the decedents wills.
Ethel filed a motion to dismiss the petition which was denied by Judge Leonidas for lack
of merit.
ISSUE:
Whether the judge committed grave abuse of discretion amounting to lack of jurisdiction in
denying Ethels motion to dismiss.
HELD:
We hold that respondent judge did not commit any grave abuse of discretion, amounting to
lack of jurisdiction, in denying Ethels motion to dismiss.
A testate proceeding is proper in this case because Grimm died with two wills and no will
shall pass either real or personal property unless it is proved and allowed (Art. 838, Civil
Code; sec. 1, Rule 75, Rules of Court).

11
The probate of the will is mandatory. It is anomalous that the estate of a person who died
testate should be settled in an intestate proceeding. Therefore, the intestate case should be
consolidated with the testate proceeding and the judge assigned to the testate proceeding
should continue hearing the two cases.
Nepomuceno v. CA Digests
Nepomuceno v. Court of Appeals

Facts:
1. Martin Hugo died on 1974 and he left a will wherein he instituted Sofia Nepomuceno as the
sole and only executor. It was also provided therein that he was married to Rufina Gomez
with whom he had 3 children.

2. Petitioner (Sofia) filed for the probate of the will but the legal wife and her children opposed
alleging that the will was procured through improper and undue influence and that there was
an admission of concubinage with the petitioner.

3. The lower court denied the probate on the ground of the testator's admission of
cohabitation, hence making the will invalid on its face. The Court of Appeals reversed and
held that the will is valid except the devise in favor of the petitioner which is null and void in
violation of Art. 739 and 1028.

Issue: Whether or not the court can pass on the intrinsic validity of a will

RULING: Yes, as an exception. But the general rule is that the court's area of inquiry is limited
to the an examination and resolution of the extrinsic validity of the will. This general rule is
however not inflexible and absolute. Given exceptional circumstances, the probate court is
not powerless to do what the situation constrains it to do and may pass upon certain
provisions of the will. The will itself admitted on its face the relationship between the testator
and the petitioner.

The will was validly executed in accordance with law but the court didn't find it to serve a
practical purpose to remand the nullified provision in a separate action for that purpose only
since in the probate of a will, the court does not ordinarily look into the intrinsic validity of its
provisions.

The devisee is invalid by virtue of Art. 739 which voids a donation made between persons
guilty of adultery/concubinage at the time of the donations. Under Art, 1028 it is also
prohibited.

12
Nepomuceno v. CA
139 SCRA 206
FACTS:
Martin Jugo left a duly executed and notarized Last Will and Testament before he died.
Petitioner was named as sole executor. It is clearly stated in the Will that he
was legally married to a certain Rufina Gomez by whom he had two legitimate children, but he
had been estranged from his lawful wife. In fact, the testator Martin Jugo and the petitioner
were married despite the subsisting first marriage. The testator devised the free portion of his
estate to petitioner. On August 21, 1974, the petitioner filed a petition for probate. On May 13,
1975, Rufina Gomez and her children filed an opposition alleging undue and improper
influence on the part of the petitioner; that at the time of the execution of the Will, the testator
was already very sick and that petitioner having admitted her living in concubinage with the
testator.
The lower court denied the probate of the Will on the ground that as the testator admitted in
his Will to cohabiting with the petitioner. Petitioner appealed to CA. 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 respondent court declared the Will to be valid except that the devise in
favor of the petitioner is null and void.
ISSUE:
W/N the CA acted in excess of its jurisdiction when after declaring the last Will and
Testament of the deceased Martin Jugo validly drawn, it went on to pass upon
the intrinsic validity of the testamentary provision.
HELD:
No. The respondent court acted within its jurisdiction when after declaring the Will to be
validly drawn, it went on to pass upon the intrinsic validity of the Will and declared the devise
in favor of the petitioner null and void. The general rule is that in probate proceedings, the
courts area of inquiry is limited to an examination and resolution of the extrinsic validity of
the Will. The rule, however, is not inflexible and absolute. Given exceptional circumstances,
the probate court is not powerless to do what the situation constrains it to do and pass upon
certain provisions of the Will.
The probate of a will might become an idle ceremony if on its face it appears to be intrinsically
void. Where practical considerations demand that the intrinsic validity of the will be passed
upon, even before it is probated, the court should meet the issue (Nuguid v. Nuguid)
The Will is void under Article 739. The following donations shall be void: (1) Those made
between persons who were guilty of adultery or concubinage at the time of the donation; and
Article 1028. The prohibitions mentioned in Article 739, concerning donations inter vivos
shall apply to testamentary provisions.
There is no question from the records about the fact of a prior existing marriage when Martin
Jugo executed his Will. The very wordings of the Will invalidate the legacy because the
testator admitted he was disposing the properties to a person with whom he had been living in
concubinage.
Nuguid vs Nuguid, No. L-23445, June 23, 1966; 17 SCRA 449, digested

Posted by Pius Morados on January 4, 2012

(Special Proceedings Difference between Preterition and Disinheritance)

13
Facts: Rosario died without descendants, legitimate or illegitimate. Surviving her were her
legitimate parents Felix and Paz, and 6 brothers and sisters.

Remedios, one of the sister filed in court a holographic will allegedly executed by Rosario
instituting the former as the sole, universal heir of all her properties. She prayed that said will be
admitted to probate and that letter of administration be issued to her.

Felix and Paz opposed to the probate of the will on the ground that by the institution of Remedios
as universal heir of the deceased, oppositors who are compulsory heirs in the direct ascending
line were illegally preterited and that in consequence, the institution is void.

Article 854 provides that preterition of one, some or all of the compulsory heirs in the direct line,
whether living at the time of the execution of the will or born after the death of the testator, shall
annul the institution of heir.

Petitioners contention is that the present is a case of ineffective disinheritance rather than one of
preterition drawing the conclusion that Article 854 does not apply in the case at bar.

Issue: WON the institution of one of the sister of the deceased as the sole, universal heir
preterited the compulsory heirs.

Held: Yes. Where the deceased left no descendants, legitimate or illegitimate, but she left forced
heirs in the direct ascending line her parents, and her holographic will does not explicitly
disinherit them but simply omits their names altogether, the case is one of preterition of the
parents, not a case of ineffective disinheritance.

Preterition consists in the omission in the testators will of the forced heirs or anyone of them,
either because they are not mentioned therein, or, through mentioned, they are neither instituted
as heirs nor are expressly disinherited. Disinheritance, in turn, is a testamentary disposition
depriving any compulsory heir of his share in the legitime for a cause authorized by law.

Where the one sentence will institutes the petitioner as the sole, universal heir and preterits the
parents of the testatrix, and it contains no specific legacies or bequests, such universal institution
of petitioner, by itself, is void. And intestate succession ensues.

14
 Nuguid v. Nuguid
GR L-23445, June 23, 1966
FACTS:
Rosario died single, without descendants, legitimate or illegitimate. Surviving were her
legitimate parents, Felix and Paz, and 6 brothers and sisters. One of the siblings filed a
holographic will allegedly executed by Rosario 11 years before her death and prayed that she
be admitted to the probate and be appointed administrator. The parents opposed saying that
they are the compulsory heirs of the decedent in the direct ascending line and that the will
should be void on the ground of absolute preterition.
ISSUE:
Is the will void on the ground of preterition?
RULING:
YES. The decedent left no descendants, legitimate or illegitimate. But she left forced heirs in
the direct ascending line her parents. And, the will completely omits both of them; thus
receiving nothing by the testament, depriving them of their legitime; neither were they
expressly disinherited. This is a clear case of preterition. Note that A. 854 of the NCC merely
nullifies the institution of heir. Considering that the will presented solely provides for the
institution of the petitioner as universal heir and nothing more, the result is the same. The will
is null and void.
NUGUID vs. NUGUID

REMEDIOS NUGUID vs. FELIX NUGUID and PAZ SALONGA NUGUID

G.R. No. L-23445 June 23, 1966

SANCHEZ, J.:

Facts:

Rosario Nuguid died on December 30, 1962, single, without descendants, legitimate or
illegitimate. Surviving her were her legitimate parents, Felix Nuguid and Paz Salonga Nuguid, and
six (6) brothers and sisters, namely: Alfredo, Federico, Remedios, Conrado, Lourdes and Alberto,
all surnamed Nuguid.

On May 18, 1963, petitioner Remedios Nuguid filed in the Court of First Instance of Rizal a
holographic will allegedly executed by Rosario Nuguid on November 17, 1951, some 11 years
before her demise. On June 25, 1963, Felix Nuguid and Paz Salonga Nuguid, concededly the
legitimate father and mother of the deceased Rosario Nuguid, entered their opposition to the
probate of her will. Ground therefor, inter alia, is that by the institution of petitioner Remedios
Nuguid as universal heir of the deceased, oppositors who are compulsory heirs of the deceased
in the direct ascending line were illegally preterited and that in consequence the institution is
void.

Issue:

Whether or not the omission of parents of the deceased in the will constitute preterition

15
Ruling:

The deceased Rosario Nuguid left no descendants, legitimate or illegitimate. But she left forced
heirs in the direct ascending line her parents, now oppositors Felix Nuguid and Paz Salonga
Nuguid. And, the will completely omits both of them: They thus received nothing by the
testament; tacitly, they were deprived of their legitime; neither were they expressly disinherited.
This is a clear case of preterition. Such preterition in the words of Manresa "anulara siempre la
institucion de heredero, dando caracter absoluto a este ordenamiento referring to the mandate of
Article 814, now 854 of the Civil Code. The one-sentence will here institutes petitioner as the sole,
universal heir nothing more. No specific legacies or bequests are therein provided for. It is in
this posture that we say that the nullity is complete. Perforce, Rosario Nuguid died intestate. The
word annul employed in the statute, there is no escaping the conclusion that the universal
institution of petitioner to the entire inheritance results in totally abrogating the will. Because,
the nullification of such institution of universal heir without any other testamentary
disposition in the will amounts to a declaration that nothing at all was written.
Kalaw v. Relova Digest
Kalaw v. Relova
G.R. No. L-40207 September 28, 1984
Melencio-Herrera, J. (Ponente)

Facts:

1. Gregorio Kalaw, the private respondent, claiming to be the sole heir of sister Natividad, filed
a peition for probate of the latter's holographic will in 1968. The will contained 2 alterations: a)
Rosa's name, designated as the sole heir was crossed out and instead "Rosario" was written
above it. Such was not initialed, b) Rosa's name was crossed out as sole executrix and
Gregorio's ma,e was written above it. This alteration was initialed by the testator.

2. Rosa contended that the will as first written should be given effect so that she would be the
sole heir. The lower court denied the probate due to the unauthenticated alterations and
additions.

Issue: Whether or not the will is valid

RULING: No, the will is voided or revoked since nothing remains in the will which could
remain valid as there was only one disposition in it. Such was altered by the substitution of
the original heir with another. To rule that the first will should be given effect is to disregard the

16
testatrix' change of mind. However, this change of mind cannot be given effect either as she
failed to authenticate it in accordance with Art. 814, or by affixing her full signature.
Kalaw v. Relova
132 SCRA 237
FACTS:
On September 1, 1971,Gregorio Kalaw, claiming to be the sole heir of his deceased sister,
Natividad Kalaw, filed a petition for the probate of her holographic Will executed on
December 24, 1968.
The holographic Will, as first written, named Rosa Kalaw, a sister of the testatrix as her sole
heir. She opposed probate alleging that the holographic Will contained alterations,
corrections, and insertions without the proper authentication by the full signature of the
testatrix as required by Article 814 of the Civil Code reading: Art. 814. In case of any insertion,
cancellation, erasure or alteration in a holographic will the testator must authenticate the
same by his full signature.
ROSAs position was that the holographic Will, as first written, should be given effect and
probated so that she could be the sole heir thereunder.
Trial Court denied petition to probate the holographic will. Reconsideration denied.
ISSUE:
W/N the original unaltered text after subsequent alterations and insertions were voided by
the Trial Court for lack of authentication by the full signature of the testatrix, should be
probated or not, with Rosa as sole heir.
HELD:
Ordinarily, when a number of erasures, corrections, and interlineations made by the testator
in a holographic Will litem not been noted under his signature, the Will is not thereby
invalidated as a whole, but at most only as respects the particular words erased, corrected or
interlined.
However, when as in this case, the holographic Will in dispute had only
one substantial provision, which was altered by substituting the original heir with another,
but which alteration did not carry the requisite of full authentication by the full signature of
the testator, the effect must be that the entire Will is voided or revoked for the simple reason
that nothing remains in the Will after that which could remain valid. To state that the Will as
first written should be given efficacy is to disregard the seeming change of mind of the
testatrix. But that change of mindcan neither be given effect because she failed to authenticate
it in the manner required by law by affixing her full signature,
The ruling in Velasco, supra, must be held confined to such insertions, cancellations, erasures
or alterations in a holographic Will, which affect only the efficacy of the altered words
themselves but not the essence and validity of the Will itself. As it is, with the
erasures, cancellations and alterations made by the testatrix herein, her real intention cannot
be determined with certitude.

17