Vous êtes sur la page 1sur 206

Wills and Succession Case Digests

1 - Ramirez vs. Ramirez donor partake of the nature of testamentary provisions, and shall be
SECOND DIVISION governed by the rules established in the Title on Succession. (620)
[G.R. No. L-27952. February 15, 1982.]
TESTATE ESTATE OF JOSE EUGENIO RAMIREZ, MARIA LUISA
PALACIOS, Administratrix, petitioner-appellee, vs. MARCELLE D. VDA. 2 - Cuevas vs Cuevas
DE RAMIREZ, ET AL., oppositors, JORGE and ROBERTO RAMIREZ, G.R. No. L-8327 December 14, 1955
Legatees, oppositors-appellants. ANTONINA CUEVAS, plaintiff-appellant, vs. CRISPULO
The main issue in this appeal is the manner of partitioning the testate CUEVAS,defendant-appellee.
estate of Jose Eugenio Ramirez among the principal beneficiaries, FACTS: On September 18, 1950, Antonina Cuevas executed a
namely: his widow Marcelle Demoron de Ramirez; his two notarizedconveyance entitled “Donacion Mortis Causa”, ceding to her
grandnephews Roberto and Jorge Ramirez; and his companion Wanda nephew CrispuloCuevas the northern half of a parcel of unregistered
de Wrobleski. land.
The widow Marcelle is a French who lives in Paris, while the Subsequently on May 26, 1952, the donor executed anothernotarial
companion Wanda is an Austrian who lives in Spain. Moreover, the instrument entitled “Revocacion de Donacion Mortis Causa”
testator provided for substitutions. purportingto set aside the conveyance. She brought an action in the
Jose Eugenio Ramirez, a Filipino national, died in Spain on December CFI to recover theland conveyed, on the ground (1) that the donation
11, 1964, with only his widow as compulsory heir. His will was being mortis causa, it hadbeen lawfully revoked by the donor; and (2)
admitted to probate by the Court of First Instance Maria Luisa Palacios even it if were a donation intervivos, the same was invalidated
was appointed administratrix of the estate. In due time she submitted because (a) it was not properly accepted; (b)because the donor did
an inventory of the estate. not reserve sufficient property for her own maintenance,and (c)
because the donee was guilty of ingratitude, for having refused
On June 23, 1966, the administratrix submitted a project of partition tosupport the donor.
as follows, the property of the deceased is to be divided into two
parts: The crux of the controversy revolves around the followingprovisions of
the deed of donation:
1. One part shall go to the widow "en pleno dominio" in satisfaction of
her legitime; Dapat maalaman niCrispulo Cuevas na samantalang ako ay
nabubuhay, and lupa na ipinagkakaloob kosa kaniya ay ako pa rin and
2. the other part or "free portion" shall go to Jorge and Roberto patuloy na mamomosecion, makapagparatrabaho,makikinabang at ang
Ramirez "en nuda propriedad." iba pang karapatan sa pagmamayari ay sa akin pa rinhanggang hindo
Furthermore, one third (1/3) of the free portion is charged with the ko binabawian ny buhay ng Maykapal at ito naman ay hindi ko ngaiya-
widow's usufruct and the remaining two-third (2/3) with a usufruct in alis pagkat kung ako ay mamatay na ay inilalaan ko sa kaniya.
favor of Wanda. ISSUE: WON thedonation is a donation inter vivos YES
Jorge and Roberto opposed the project of partition: HELD: The decisive proof that the present donation is
operativeinter vivor lies in the final phrase to the effect that the donor
1. xxx
2. xxx will notdispose or take away ("hindi ko nga iya-alis" in the original)
theland "because I am reserving it to him upon my death." By these
3. that the grant of a usufruct over real property in the
Philippines in favor of Wanda de Wrobleski, who is an alien, violates wordsthe donor expressly renounced the right to freely dispose of the
the Constitution property infavor of another (a right essential to full ownership) and
4. xxx manifested the irrevocability of the conveyance of the naked title to
the property in favor ofthe donee. As stated in our decision in Bonsato
Nonetheless, the lower court approved the project of partition. Hence, vs. Court of Appeals, ante,such irrevocability is characteristic of
this appeal. donations inter vivos, because it isincompatible with the idea of a
disposition post mortem.
WON the grant of a usufruct over real property in the Philippines in
favor of Wanda is violative of the Constitution. It is apparent from the entire context of the deed ofdonation that the
donor intended that she should retain the entire beneficialownership
Held: No, it is not violative of the Constitution.
during her lifetime, but that the naked title should irrevocably passto
The 1935 Constitution which is controlling provides as follows: the donee. It is only thus that all the expressions heretofore discussed
canbe given full effect; and when the donor stated that she would
"SEC. 5. Save in cases of hereditary succession, no private agricultural
continue toretain the "possession, cultivation, harvesting and all other
land shall be transferred or assigned except to individuals,
rights andattributes of ownership," she meant only the dominium utile,
corporations, or associations qualified to acquire or hold lands of the
not the fullownership.
public domain in the Philippines." (Art. XIII.).
As the Court below correctly observed, the words "rightsand attributes
The court a quo upheld the validity of the usufruct given to Wanda on
of ownership" should be construed ejusdem generis with thepreceding
the ground that the Constitution covers not only succession by
rights of "possession, cultivation and harvesting"expressly enumerated
operation of law but also testamentary succession.
in the deed. Had the donor meant to retain full orabsolute ownership
The Constitutional provision which enables aliens to acquire private she had no need to specify possession, cultivation andharvesting, since
lands does not extend to testamentary succession for otherwise the all these rights are embodied in full or absolute ownership;nor would
prohibition will be for naught and meaningless. Any alien would be she then have excluded the right of free disposition from the"rights
able to circumvent the prohibition by paying money to a Philippine and attributes of ownership" that she reserved for herself. Hence, the
landowner in exchange for a devise of a piece of land. Court rightly concluded that the deed was a validdonation inter vivos.
This opinion notwithstanding, We uphold the usufruct in favor of 3 - Jutic v CA August 27, 1987
Wanda because a usufruct, albeit a real right, does not vest title to the
CONSUELO SEVILLE JUTIC, JUAN JUTIC, CELESTINO SEVILLE,
land in the usufructuary and it is the vesting of title to land in favor of
TIBURCIO SEVILLE, RAVELLO SEVILLE, SONITA SEVILLE,
aliens which is proscribed by the Constitution.
LUCY SEVILLE, EPIFANIA SEVILLE, NARACY SEVILLE,
Art. 728. Donations which are to take effect upon the death of the EMMANUEL SEVILLE, ORLANDO MANICAN, and PACIFICO
1
Wills and Succession Case Digests
MANICAN, petitioners, vs. THE COURT OF APPEALS, MANILA, House and Lot" covering one-half (½) portion of the former's house
VICENTE SULLAN, TRINIDAD SULLAN, TERESITA SULLAN, and lot located in Mandaue, Cebu.
ULYSSES SULLAN, ALEJANDRINO SULLAN, BUENAVENTURA
4 other deeds of donation were executed in favor of herein petitioners.
SEVILLE, and ZOILO SEVILLE, respondents.
Such deeds contained the following provisions:
The petitioners are the surviving heirs of Melquiades Seville.
"That for and in consideration of the love and affection of the DONOR
Melquiades in turn is the brother of the deceased Arsenio Seville.
for the DONEE, x x x the DONOR does hereby, by these presents,
Arsenio died ahead. Melquiades died later and was survived by his
transfer, convey, by way of donation, unto the DONEE the above-
children (petitioners). During the lifetime of Arsenio Seville he
described property, together with the buildings and all improvements
executed an affidavit which reads:
existing thereon, to become effective upon the death of the DONOR;
I, ARSENIO SEVILLE, of legal age, WIDOWER, Filipino, and a resident PROVIDED, HOWEVER, that in the event that the DONEE should die
of Anquibit, Cambanogoy, Saug, Davao, Philippines, after having been before the DONOR, the present donation shall be deemed
duly sworn to in accordance with law do hereby depose and say, as automatically rescinded and of no further force and effect;
follows:
On May 9, 1995, Conchita Cabatingan died.
xxx
The respondents, heirs of Cabatingan filed an action for annulment
That I am a widower as indicated above and that I have no one to and/or declaration of nullity of deeds of donations and accounting.
inherit all my properties except my brother Melquiades Seville who They alleged that petitioners, through their sinister machinations and
appears to be the only and rightful person upon whom I have the most strategies and taking advantage of Conchita Cabatingan's fragile
sympathy since I have no wife and children; condition, caused the execution of the deeds of donation, and, that the
documents are void for failing to comply with the provisions of the Civil
That it is my desire that in case I will die I will assign all my rights,
Code regarding formalities of wills and testaments, considering that
interest, share and participation over the above- mentioned property
these are donations mortis causa.
and that he shall succeed to me in case of my death, however, as long
as I am alive I will be the one to possess, enjoy and benefit from the The trial Court rendered partial judgment in favor of respondents.
produce of my said land and that whatever benefits it will give me in
Petitioners instituted this present petition insisting that the donations
the future I shall be the one to enjoy it;
are inter vivos donations as these were made by the late Conchita
xxx Cabatingan "in consideration of the love and affection of the donor" for
the donee, and there is nothing in the deeds which indicate that the
The children of Melquiades are now claiming exclusive ownership of
donations were made in consideration of Cabatingan's death. In
the properties and improvements thereon on the basis of the affidavit
addition, petitioners contend that the stipulation on rescission in case
executed by Arsenio in favor of Melquiades, alleging that the affidavit
petitioners die ahead of Cabatingan is a resolutory condition that
was a donation inter vivos.
confirms the nature of the donation as inter vivos.
Vicente Sullan and the other respondents filed a complaint against the
ISSUE: Was the donation inter vivos or mortis causa? Mortis Causa
petitioners for partition and accounting of the properties of Arsenio,
alleging they are heirs of the decedent. HELD: In a donation mortis causa, "the right of disposition is not
transferred to the donee while the donor is still alive."In determining
ISSUE: WON the affidavit was a donation inter vivos. No.
whether a donation is one of mortis causa, the following characteristics
A close reading reveals that the affidavit is not a donation inter vivos must be taken into account:
or mortis causa but a mere declaration of an intention and a desire.
(1) It conveys no title or ownership to the transferee before the death
Certainly, it is not a concrete and formal act of giving or donating. The
of the transferor; or what amounts to the same thing, that the
form and contents of said affidavit amply support this conclusion.
transferor should retain the ownership (full or naked) and control of
A discussion of the different kinds of donations and the requisites for the property while alive;
their effectivity is irrelevant in the case at bar. There clearly was no (2) That before his death, the transfer should be revocable by the
intention to transfer ownership from Arsenio Seville to Melquiades transferor at will, ad nutum; but revocability may be provided for
Seville at the time of the instrument's execution. It was a mere indirectly by means of a reserved power in the donor to dispose of the
intention or a desire on the part of Arsenio Seville that in the event of properties conveyed;
his death at some future time, his properties should go to Melquiades And
Seville.
(3) That the transfer should be void if the transferor should survive the
It is quite apparent that Arsenio Seville was thinking of succession ("... transferee.
in case I win die, I will assign all my rights, share and participation
In the present case, the nature of the donations as mortis causa is
over the above-mentioned properties and that he shall succeed to me
confirmed by the fact that the donations do not contain any clear
in case of my death ..."). Donations which are to take effect upon the
provision that intends to pass proprietary rights to petitioners prior to
death of the donor partake of the nature of testamentary provisions
Cabatingan's death. The phrase "to become effective upon the death
and shall be governed by the rules established in the title on
of the DONOR" admits of no other interpretation but that Cabatingan
succession (Art. 728, Civil Code).
did not intend to transfer the ownership of the properties to petitioners
The petitioners likewise contend that the document was a valid during her lifetime. Petitioners themselves expressly confirmed the
donation as only donations are accepted by the donees. However, the donations as mortis causa in the following Acceptance and Attestation
petitioners could not have accepted something, which by the terms of clauses, uniformly found in the subject deeds of donation, to wit:
the supposed "donation" was not given to them at the time. The
"That the DONEE does hereby accept the foregoing donation mortis
affidavit could not transmit ownership except in clear and express
causa under the terms and conditions set forth therein, and avail
terms.
herself of this occasion to express her profound gratitude for the
4 - Maglasang v Cabatingan kindness and generosity of the DONOR."
G.R.No. 131953, June 5 2002 x x x
"SIGNED by the above-named DONOR and DONEE at the foot of this
FACTS: Conchita Cabatingan executed in favor of her brother,
Deed of Donation mortis causa, which consists of two (2) pages x x x."
Nicolas Cabatingan, a "Deed of Conditional of Donation Inter Vivos for

2
Wills and Succession Case Digests
Also, a transfer mortis causa can also be made "in consideration of the the property above, described, to become effective upon the death of
love and affection of the donor” so the contention of the petitioner the DONOR; but in the event that the DONEE should die before the
does not stand. DONOR, the present donation shall be deemed rescinded and of no
further force and effect. xxx
This is similar to the case of National Treasurer of the Phils. v. Vda. de
• On June 10, 1967, Celestina executed a document denominated as
Meimban which held that the donation is a mortis causa donation and
Revocation of Donation purporting to set aside the deed of donation.
the formalities of a will should have been complied with under Article
More than a month later or on August 18, 1967, Celestina died without
728 of the Civil Code, otherwise, the donation is void and would
issue and any surviving ascendants and siblings.
produce no effect. As we have held in Alejandro v. Geraldez (78 SCRA
• In 1982, or twenty-four years after the execution of the Deed of
245,253), "If the donation is made in contemplation of the donor's
Donation, Ursulina secured the corresponding tax declarations, in her
death, meaning that the full or naked ownership of the donated
name, over the donated properties and since then, she refused to give
properties will pass to the donee because of the donor's death, then it
private respondents (other nieces of Clestina) any share in the produce
is at that time that the donation takes effect, and it is a donation
of the properties despite repeated demands.
mortis causa which should be embodied in a last will and testament.
• Private respondents filed a complaint against Ursulina et al. The
(Citing Bonsato v. Court of Appeals, 95 Phil. 481)."
complaint alleged that the Deed of Donation executed by Celestina in
In the present case, subject deeds expressly provide that the donation favor of Ursulina was void for lack of acknowledgment by the attesting
shall be rescinded in case petitioners predecease Conchita Cabatingan. witnesses thereto before notary public Atty. Henry Valmonte, and the
As stated in Reyes v. Mosqueda, one of the decisive characteristics of donation was a disposition mortis causa which failed to comply with
a donation mortis causa is that the transfer should be considered void the provisions of the Civil Code regarding formalities of wills and
if the donor should survive the donee. This is exactly what Cabatingan testaments, hence, it was void. The plaintiffs-herein private
provided for in her donations. If she really intended that the donation respondents thus prayed that judgment be rendered ordering Ursulina
should take effect during her lifetime and that the ownership of the to return to them as intestate heirs the possession and ownership of
properties donated be transferred to the donee or independently of, the properties.
and not by reason of her death, she would have not expressed such • Ursulina et al argue that the donation contained in the deed is inter
proviso in the subject deeds. vivos as the main consideration for its execution was the donor’s
Considering that the disputed donations are donations mortis causa, affection for the donee rather than the donor’s death; that the
the same partake of the nature of testamentary provisions and as provision on the effectivity of the donation—after the donor’s death—
such, said deeds must be executed in accordance with the requisites simply meant that absolute ownership would pertain to the donee on
on solemnities of wills and testaments under Articles 805 and 806 of the donor’s death; and that since the donation is inter vivos, it may be
the Civil Code, to wit: revoked only for the reasons provided in Articles 760, 764[ and 765 of
the Civil Code.
"ART. 805. Every will, other than a holographic will, must be
subscribed at the end thereof by the testator himself or by the
testator's name written by some other person in his presence, and by ISSUE: Whether the donation was mortis causa or inter vivos? MORTIS
his express direction, and attested and subscribed by three or more CAUSA
credible witnesses in the presence of the testator and of one another.
HELD: Crucial in the resolution of the issue is the determination of
The testator or the person requested by him to write his name and the
whether the donor intended to transfer the ownership over the
instrumental witnesses of the will, shall also sign, as aforesaid, each
properties upon the execution of the deed.
and every page thereof, except the last, on the left margin, and all the
pages shall be numbered correlatively in letters placed on the upper Donation inter vivos differs from donation mortis causa in that in the
part of each page. former, the act is immediately operative even if the actual execution
The attestation shall state the number of pages used upon which the may be deferred until the death of the donor, while in the latter,
will is written , and the fact that the testator signed the will and every nothing is conveyed to or acquired by the donee until the death of the
page thereof, or caused some other person to write his name, under donor-testator.
his express direction, in the presence of the instrumental witnesses,
The following ruling of this Court in Alejandro v. Geraldez is
and that the latter witnessed and signed the will and all the pages
illuminating:
thereof in the presence of the testator and of one another.
If the donation is made in contemplation of the donor’s death,
If the attestation clause is in a language not known to the witnesses, it
meaning that the full or naked ownership of the donated properties
shall be interpreted to them. (n)
will pass to the donee only because of the donor’s death, then it is at
ART. 806. Every will must be acknowledged before a notary public by
that time that the donation takes effect, and it is a donation mortis
the testator and the witnesses. The notary public shall not be required
causa which should be embodied in a last will and testament.
to retain a copy of the will, or file another with the office of the Clerk
But if the donation takes effect during the donor’s lifetime or
of Court. (n)"
independently of the donor’s death, meaning that the full or naked
The deeds in question although acknowledged before a notary public ownership (nuda proprietas) of the donated properties passes to the
of the donor and the donee, the documents were not executed in the donee during the donor’s lifetime, not by reason of his death but
manner provided for under the above-quoted provisions of law. because of the deed of donation, then the donation is inter vivos.
5 - GANUELAS VS CAWED The distinction between a transfer inter vivos and mortis causa is
[G. R. No. 123968. April 24, 2003] important as the validity or revocation of the donation depends upon
its nature. If the donation is inter vivos, it must be executed and
Facts: • On April 11, 1958, Celestina Ganuelas Vda. de Valin
accepted with the formalities prescribed by Articles 748 and 749 of the
(Celestina) executed a Deed of Donation of Real Property (7 parcels of
Civil Code, except when it is onerous in which case the rules on
land) in favor of her niece Ursulina Ganuelas (Ursulina.
contracts will apply. If it is mortis causa, the donation must be in the
The pertinent provision of the deed of donation reads, quoted
form of a will, with all the formalities for the validity of wills, otherwise
verbatim:
it is void and cannot transfer ownership.
xxx
That, for and in consideration of the love and affection which the The distinguishing characteristics of a donation mortis causa are the
DONOR has for the DONEE, and of the faithful services the latter has following:
rendered in the past to the former, the said DONOR does by these 1. It conveys no title or ownership to the transferee before the death
presents transfer and convey, by way of DONATION, unto the DONEE of the transferor; or, what amounts to the same thing, that the
3
Wills and Succession Case Digests
transferor should retain the ownership (full or naked) and control of THE COURT OF APPEALS, CONCEPCION D. ALCARAZ, and
the property while alive; RAMONA PATRICIA ALCARAZ, assisted by GLORIA F. NOEL as
2. That before his death, the transfer should be revocable by the attorney-in-fact, respondents.
transferor at will, ad nutum; but revocability may be provided for MELO, J.:p
indirectly by means of a reserved power in the donor to dispose of the
The petition before us has its roots in a complaint for specific
properties conveyed;
performance to compel herein petitioners (except the last named,
3. That the transfer should be void if the transferor should survive the
Catalina Balais Mabanag) to consummate the sale of a parcel of land
transferee.
with its improvements located along Roosevelt Avenue in Quezon City
In the donation subject of the present case, there is nothing therein entered into by the parties sometime in January 1985 for the price of
which indicates that any right, title or interest in the donated P1,240,000.00.
properties was to be transferred to Ursulina prior to the death of
FACTS: On January 19, 1985, defendants-appellants Romulo
Celestina.
Coronel, et al. executed a document entitled "Receipt of Down
The phrase “to become effective upon the death of the DONOR” Payment" in favor of plaintiff Ramona Patricia Alcaraz which is
admits of no other interpretation but that Celestina intended to reproduced hereunder:
transfer the ownership of the properties to Ursulina on her death, not
during her lifetime. RECEIPT OF DOWN PAYMENT
More importantly, the provision in the deed stating that if the donee
should die before the donor, the donation shall be deemed rescinded P1,240,000.00 — Total amount
and of no further force and effect shows that the donation is a 50,000 — Down payment
postmortem disposition. ———————————
As stated in a long line of cases, one of the decisive characteristics of a P1,190,000.00 — Balance
donation mortis causa is that the transfer should be considered void if
the donor should survive the donee. Received from Miss Ramona Patricia Alcaraz of 146 Timog,
Quezon City, the sum of Fifty Thousand Pesos purchase
More. The deed contains an attestation clause expressly confirming the price of our inherited house and lot, covered by TCT No.
donation as mortis causa: 119627 of the Registry of Deeds of Quezon City, in the total
SIGNED by the above-named donor, Celestina Ganuelas, at the foot of amount of P1,240,000.00.
this deed of donation mortis causa, consisting of two (2) pages and on
the left margin of each and every page thereof in the joint presence of We bind ourselves to effect the transfer in our names from
all of us who at her request and in her presence and that of each other our deceased father, Constancio P. Coronel, the transfer
have in like manner subscribed our names as witnesses. (Emphasis certificate of title immediately upon receipt of the down
supplied) payment above-stated.

To classify the donation as inter vivos simply because it is founded on On our presentation of the TCT already in or name, We will
considerations of love and affection is erroneous. That the donation immediately execute the deed of absolute sale of said
was prompted by the affection of the donor for the donee and the property and Miss Ramona Patricia Alcaraz shall immediately
services rendered by the latter is of no particular significance in pay the balance of the P1,190,000.00.
determining whether the deed constitutes a transfer inter vivos or not, Clearly, the conditions appurtenant to the sale are the
because a legacy may have an identical motivation. In other words, following:
love and affection may also underline transfers mortis causa.
1. Ramona will make a down payment of Fifty Thousand
In the case of Maglasang v. Heirs of Cabatingan, this Court held that (P50,000.00) Pesos upon execution of the document
the donations were mortis causa, for the above-quoted provision aforestated;
conclusively establishes the donor’s intention to transfer the ownership
and possession of the donated property to the donee only after the 2. The Coronels will cause the transfer in their names of the
former’s death. Like in the present case, the deeds therein did not title of the property registered in the name of their deceased
contain any clear provision that purports to pass proprietary rights to father upon receipt of the Fifty Thousand (P50,000.00)
the donee prior to the donor’s death. Pesos down payment;

As the subject deed then is in the nature of a mortis causa disposition, 3. Upon the transfer in their names of the subject property,
the formalities of a will under Article 728 of the Civil Code should have the Coronels will execute the deed of absolute sale in favor
been complied with, failing which the donation is void and produces no of Ramona and the latter will pay the former the whole
effect. balance of One Million One Hundred Ninety Thousand
(P1,190,000.00) Pesos.
As noted by the trial court, the attesting witnesses failed to
acknowledge the deed before the notary public, thus violating Article On the same date, plaintiff-appellee Concepcion D. Alcaraz (hereinafter
806 of the Civil Code. referred to as Concepcion), mother of Ramona, paid the down
Art. 774. Succession is a mode of acquisition by virtue of which the payment of P50,000.00. On February 6, 1985, the property originally
property, rights and obligations to the extent of the value of the registered in the name of the Coronels' father was transferred in their
inheritance, of a person are transmitted through his death to another names under TCT No. 327043.
or others either by his will or by operation of law. (n) On February 18, 1985, the Coronels sold the property covered by TCT
No. 327043 to intervenor-appellant Catalina B. Mabanag
P1,580,000.00 after the latter has paid P300,000.00. For this reason,
6 - G.R. No. 103577 October 7, 1996 Coronels canceled and rescinded the contract with Ramona by
ROMULO A. CORONEL, ALARICO A. CORONEL, ANNETTE A. depositing the down payment paid by Concepcion in the bank in trust
CORONEL, ANNABELLE C. GONZALES (for herself and on for Ramona Patricia Alcaraz.
behalf of Florida C. Tupper, as attorney-in-fact), CIELITO A.
CORONEL, FLORAIDA A. ALMONTE, and CATALINA BALAIS On February 22, 1985, Concepcion, et al., filed a complaint for specific
MABANAG, petitioners, performance against the Coronels and caused the annotation of a
vs. notice of lis pendens at the back of TCT No. 327403.

4
Wills and Succession Case Digests
On April 2, 1985, Catalina caused the annotation of a notice of adverse TERESITA A. LOY and ESTATE OF JOSE VAÑO, [G.R. No.
claim covering the same property with the Registry of Deeds of 145982. September 13, 2004]
Quezon City. On April 25, 1985, the Coronels executed a Deed of
FACTS: The Loys seek a reconsideration of the Decision dated 3 July
Absolute Sale over the subject property in favor of Catalina. On June
2003 of this Court declaring void the deeds of sale of Lot Nos. 5 and 6
5, 1985, a new title over the subject property was issued in the name
executed by Teodoro Vaño in favor of Alfredo Loy, Jr. and Teresita
of Catalina under TCT No. 351582.
Loy.
In the course of the proceedings before the trial court the parties
The Loys insist that the transaction between Teodoro Vaño and Benito
agreed to submit the case for decision solely on the basis of
Liu, the predecessor-in-interest of Frank Liu, is a
documentary exhibits. The judgment is in favor of the plaintiffs. MFR
contract to sell. In contrast, the transactions between Teodoro Vaño
was denied. concepcion and ramona - and Alfredo Loy, Jr. and Teresita A. Loy were contracts of sale.
Petitioners thereupon interposed an appeal, but on December 16, According to the Loys, the contract to sell did not transfer ownership
1991, the Court of Appeals rendered its decision fully agreeing with the of Lot Nos. 5 and 6 to Benito Liu or Frank Liu because it was only a
trial court. promise to sell subject to the full payment of the consideration. On the
other hand, the contracts of sale in favor of the Loys transferred
Petitioners also argue there could been no perfected contract
ownership, as the conveyances were absolute.
on January 19, 1985 because they were then not yet the
absolute owners of the inherited property. The Loys reiterate their contention that Teodoro Vaño, as
administrator and sole heir to the properties, can sell the lots to them
We cannot sustain this argument.
since the rights of an heir are transmitted from the moment of death
RULING: Article 774 of the Civil Code defines Succession as a mode of of the testator. Although a property under estate proceedings cannot
transferring ownership as follows: be sold without judicial approval, the Loys allege that in their case, the
probate court later approved the sales to them, thereby ratifying the
Art. 774. Succession is a mode of acquisition by
sales.
virtue of which the property, rights and obligations
to be extent and value of the inheritance of a ISSUE: W/N there was a valid sale byTeodoro to the Loys. None
person are transmitted through his death to
HELD: The orders of the probate court dated 19 and 23 March 1976
another or others by his will or by operation of
approving the contracts of the Loys are void. The orders did not ratify
law.
the sales because there was already a prior order of the probate court
Petitioners-sellers in the case at bar being the sons and dated 24 February 1976 approving the sale of Lot Nos. 5 and 6 to
daughters of the decedent Constancio P. Coronel are Frank Liu. Hence, the probate court had already lost jurisdiction over
compulsory heirs who were called to succession by operation Lot Nos. 5 and 6 since the lots no longer formed part of the Estate of
of law. Thus, at the point their father drew his last Jose Vaño. In fact, the administratrix of the estate filed a motion for
breath, petitioners stepped into his shoes insofar as reconsideration of the orders of the probate court approving the
the subject property is concerned, such that any contracts of the Loys because she already executed a deed of sale
rights or obligations pertaining thereto became covering Lot Nos. 5 and 6 in favor of Frank Liu.
binding and enforceable upon them. It is expressly
As we held in our Decision, a prior contract to sell made by the
provided that rights to the succession are
decedent during his lifetime prevails over a subsequent contract of sale
transmitted from the moment of death of the
made by the administrator without probate court approval. It is
decedent (Article 777, Civil Code; Cuison vs. Villanueva, 90
immaterial if the prior contract is a mere contract to sell and does not
Phil. 850 [1952]).
immediately convey ownership. Frank Liu’s contract to sell became
Be it also noted that petitioners' claim that succession may not be valid and effective upon its execution and bound the estate to convey
declared unless the creditors have been paid is rendered moot by the the property upon full payment of the consideration.
fact that they were able to effect the transfer of the title to the
It is apparent from Teodoro Vaño’s letter dated 16 October 1954 that
property from the decedent's name to their names on February 6,
the reason why Frank Liu stopped further payments on the lots,
1985.
leaving a balance of P1,000, was because Teodoro Vaño could not yet
Aside from this, petitioners are precluded from raising their supposed transfer the titles to Benito Liu, the predecessor-in-interest of Frank
lack of capacity to enter into an agreement at that time and they Liu. It would appear that Frank Liu and Teodoro Vaño lost contact with
cannot be allowed to now take a posture contrary to that which they each other thereafter and it was only on 25 January 1964 that Frank
took when they entered into the agreement with private respondent Liu wrote Teodoro Vaño informing the latter that he was ready to pay
Ramona P. Alcaraz. The Civil Code expressly states that: the balance of the purchase price of the lots. Teodoro Vaño did not
reply to Frank Liu’s letter. On 22 April 1966, Benito Liu sold to Frank
Art. 1431. Through estoppel an admission or
Liu the lots, including Lot Nos. 5 and 6, which Benito Liu purchased
representation is rendered conclusive upon the
from Teodoro Vaño on 13 January 1950. Frank Liu sent three letters
person making it, and cannot be denied or
dated 21 March 1968, 7 June 1968 and 29 July 1968 to Teodoro Vaño
disproved as against the person relying thereon.
reiterating his request for the execution of the deed of sale covering
Having represented themselves as the true owners of the subject the lots in his favor but to no avail. On 19 August 1968, Teodoro Vaño
property at the time of sale, petitioners cannot claim now that they sold Lot No. 6 to Teresita Loy and on 16 December 1969, he sold Lot
were not yet the absolute owners thereof at that time. No. 5 to Alfredo Loy, Jr. The sales to the Loys were made after Frank
Liu offered to pay the balance of the purchase price of the lots and
Art. 776. The inheritance includes all the property, rights and after he repeatedly requested for the execution of the deeds of sale in
obligations of a person which are not extinguished by his death. (659) his favor.
The sale of the lots by Teodoro Vaño to Benito Liu was valid. The sale
7 - FRANK N. LIU, deceased, substituted by his surviving was made by Teodoro Vaño on 13 January 1950 in his capacity as
spouse Diana Liu, and children, namely: Walter, Milton, Frank, attorney-in-fact of Jose Vaño. The sale to Benito Liu was made during
Jr., Henry and Jockson, all surnamed Liu, Rebecca Liu Shui the lifetime of Jose Vaño, not after the death of Jose Vaño who died
and Pearl Liu Rodriguez, petitioners, vs. ALFREDO LOY, JR., on 28 January 1950.The power of attorney executed by Jose Vaño in
favor of Teodoro Vaño remained valid during the lifetime of Jose Vaño.
5
Wills and Succession Case Digests
In his letter dated 16 October 1954, Teodoro Vaño stated that on 30 ISSUE: W/N the widow and the legitimate minor children of a
June 1954, the Supreme Court allowed the probate of the will of Jose deceased resident Chinese merchant have the right to enter the
Vaño. Teodoro Vaño likewise mentioned in the letter that in July 1954, Philippine Islands.
the Supreme Court held that all the sales made by Teodoro Vaño of
RULING: We have held in the case of Ng Hian vs. Collector of
the properties of his father were legal.[6] Thus, Benito Liu’s deed of
Customs that the widow and minor children of a deceased Chinese
sale in favor of Frank Liu covering the lots sold to him by Teodoro
merchant resident and doing business in the Philippine Islands at the
Vaño constitutes a valid charge or claim against the estate of Jose
time of his death are not entitled to enter the Philippine Islands solely
Vaño.
by reason of such relationship. Counsel for the appellant asks us to
8 - CONDE vs. ABAYA overrule that decision and admit the applicants in this case, setting
G. R. No. 4275 forth with ability arguments to that end. We must say, however, that,
March 23, 1909 after a careful consideration of such arguments, we are unable to see
our way clear to overrule the former decision and accordingly decline
Casiano Abaya died on April 6, 1899. Paula Conde, as the mother of
to do so.
the natural children Jose and Teopista Conde [both deceased], whom
she states she had by Casiano Abaya claimed succession to the With regard to the second question, it may be said that it does not
hereditary rights of her children with respect to the inheritance of their appear in the record of this case that the applicant is a merchant. It
deceased father Jose and Teopista were unacknowledge natural appears simply that her husband was, at the time of his death, a
children. resident Chinese merchant doing business in the Philippine Islands,
and that he died leaving property including a mercantile business. The
Roman Abaya, Casiano’s brother, opposed Paula’s claim, saying that
assumption of the appellant is that the mere fact of the death of a
he is the nearest relative of the deceased and should therefore be
merchant makes his wife and children also merchants, as it leaves to
declared his sole heir.
them as heirs and next of kin a mercantile business as a part of their
W/N after the death of a person claimed to be an unacknowledged inheritance. We do not believe that this necessarily follows. But if it
natural child, the mother of such presumed natural child, as heir to the does, the fact remains that she is not a resident merchant. She is still
latter, may bring an action to enforce acknowledgment of her outside of the Philippine Islands and has never held the status of
deceased child. a resident merchant. She must, therefore, establish her right to enter
as a merchant in the first instance. This she did not do. She did not
NO. The right of action pertaining to the child to claim his legitimacy is
present the section six certificate which is the only evidence upon
in all respects superior to that of the child who claims
which her right to enter can be based.
acknowledgement as a natural child. And it is evident that the right of
action to claim his legitimacy is not one of those rights which the From these observations it necessarily follows that the applicant is not
legitimate child may transmit by inheritance to his heirs; it forms no entitled to enter the Philippine Islands upon the status of her deceased
part of those rights which the legitimate child may transmit by husband; and that when she seeks to enter upon her own personal
inheritance to his heirs; it forms no part of the component rights of his status she must produce the evidence which the law requires to
inheritance. If it were so, there would have been no necessity to establish that status. Not having done this her application to enter was
establish its transmissibility to heirs as an exception in the terms and properly denied.
conditions of Article 118 [now Article 268] of the Civil Code. So that, in
10 - GREAT PACIFIC LIFE ASSURANCE vs. CA
order that it may constitute a portion of the child’s inheritance, it is
necessary that the conditions and the terms contained in Article 118 FACTS: A contract of group life insurance was executed between Great
[now Article 268] shall be present since without them, the right that Pacific Life Assurance Corporation (Grepalife) and Development Bank
the child held during his lifetime, being personal and exclusive in of the Philippines (DBP)) where Grepalife agreed to insure the lives of
principle and therefore as a general rule not susceptible of eligible housing loan mortgagors of DBP.
transmission would and should have been extinguished by his death.
In 1983, Dr. Wilfredo Leuterio, a physician and a housing debtor of DB
Therefore where no express provision like that of Article 118 [now P applied for membership in the group life insurance plan where he de
268] exists, the right of action for the acknowledment of a natural clared himself as physically healthy.
child is, in principle and without exception, extinguished by his death,
Grepalife issued Certificate No. B18558, as insurance coverage of Dr. L
and can not be transmitted as a portion of the inheritance of the
euterio, to the extent of his DBP mortgage indebtedness of 86,200.00.
deceased child.
In 1984, Dr. Leuterio died due to "massive cerebral hemorrhage." Cons
9 - LAO HU NIU v. THE INSULAR COLLECTOR OF CUSTOMS
equently, DBP submitted a death claim to Grepalife.
FACTS: This case involves the exclusion from the Philippine Islands of
Grepalife denied the claim alleging that Dr. Leuterio’s non-
a Chinese woman and her minor children. She claims to be the wife of
disclosure that he had been suffering from hypertension
a former resident Chinese merchant who, prior to the attempt of the
(which caused his death) constituted concealment that justified the de
appellant to enter, died in the Philippine Islands owning property
nial of the claim.
therein and leaving as his only heirs at law and next of kin his widow,
the appellant herein, and her minor children. In1986, the widow of the late Dr. Leuterio, Medarda Leuterio,
filed a complaint with the RTC against Grepalife for specific
The board of special inquiry refused them permission to enter and that
performance with damages.
refusal was affirmed by the CFI of Manila. This appeal is from the
action taken by the CFI. Grepalife alleges, among other things, that the complaint was institute
d by the widow of Dr. Leuterio, not the real party in
Counsel for appellant says in his brief that: "The question involved
interest, hence the trial court acquired no jurisdiction over the case.
here is a double one: First, as to the right of the widow and the
legitimate minor children of a deceased resident Chinese merchant to (While the case was pending before the SC, DBP collected the debt fro
enter the Philippine Islands as such widow and children; and, second, m the mortgagor and took the necessary action of foreclosure on the r
the right of such widow, as a merchant and the successor to her esidential lot of the Leuterios.)
husband, to enter the said Islands and to bring her children with her."
ISSUE: WON the widow of the decedent Dr. Leuterio may file the suit
Counsel then says: "It would appear that the first part of the foregoing against the insurer, Grepalife. YES.
questions has been resolved by this honorable tribunal against such
RULING:
right of entrance."
6
Wills and Succession Case Digests
A policy of insurance upon life or health may pass by FACTS:
transfer, will or succession to any person, whether he -GSIS sold to a certain Macaria Vda. de Caiquep a parcel of residential
has an insurable interest or not, and such person may land of the GSIS low cost Housing Project. This was evidenced by a
recover it whatever the insured might have recovered. The wid Deed of Absolute Sale.
ow of the decedent Dr. Leuterio may therefore file the suit against the -An encumbrance was annotated at the back of the title, not to sell,
insurer, Grepalife. convey, lease or sublease, or otherwise encumber the property within
5 years from the time that the final and absolute ownership thereof
The rationale of a group insurance policy of mortgagors,
becomes vested in the vendee.
otherwise known as the "mortgage redemption insurance," is
- A day after the issuance of TCT in favor of Macaria, she sold the
device for the protection of both the mortgagee and the
subject lot to private respondent, Maximo Menez, Jr., as evidenced by
mortgagor. On the part of the mortgagee (DBP herein), it has
a Deed of Absolute Sale.
to enter into such form of contract so that in the event of the
-GSIS prohibited him from registering it since it was prohibited but he
unexpected demise of the mortgagor (Dr. Leuterio herein)
was able to get a TCT later. The said TCT was lost, but private
during the subsistence of the mortgage contract, the proceeds from su
respondent subsequently obtained a duplicate after judicial
ch insurance will be applied to the payment of the
proceedings.
mortgage debt, thereby relieving the heirs of the mortgagor
-Petitioner San Agustin, nephew of Macaria, who was the present
from paying the obligation. In a similar vein, ample protection
occupant and heir of Macaria, claimed that he was not notified and so
is given to the mortgagor under such a concept so that in the event of
he file a motion to reopen a Reconstitution Proceedings. Both RTC and
death; the mortgage obligation will be extinguished
CA ruled in favor of private respondent.
by the application of the insurance proceeds to the mortgage
indebtedness. ISSUE:
Whether or not the Deed of Sale between Macaria Vda. de Caiquep
Grepalife failed to clearly and satisfactorily establish that there was con
and private respondent is valid upon San Agustin being an heir of
cealment made by the insured, hence, it cannot refuse
Macaria. YES
payment of the claim. However, the SC noted that while the
case was pending before it, DBP foreclosed the residential lot RULING:
of the Leuterios, in satisfaction of Dr. Leuterio’s outstanding -The said contract of sale is binding upon the heirs of Macaria Vda. de
loan. Considering this supervening event, the insurance Caiquep, including petitioner who alleges to be one of her heirs, in line
proceeds shall inure to the benefit of the heirs of the deceased with the rule that heirs are bound by contracts entered into by their
person or his beneficiaries. Equity dictates that DBP should notunjustly predecessors-in-interest. The general rule is that a party’s contractual
enrich itself at the expense of another. Hence, it rights and obligations are transmissible to the successors. Moreover,
cannot collect the insurance proceeds, after it already obligations arising from sale is transmissible.
foreclosed on the mortgage. The proceeds now rightly belong - San Agustin is said to be not entitled to a notice having no interest in
to Dr. Leuterio's heirs represented by his widow, Medarda Leuterio. the property based on the memorandum annotated at the back of the
TCT.
11 - ERNESTO ROBLES, petitioner,
-The contract of sale remains valid between the parties, unless and
vs.
until annulled in the proper suit filed by the rightful party, the GSIS. In
HON. DELFIN FL. BATACAN, HON. CONRADO M. VASQUEZ,
this case, the GSIS, the proper party, has not filed any action for the
HON. JOSE B. JIMENEZ. ATANACIO GERONIMO and
annulment of Deed of Sale between them and Macaria Vda. de
BENEDICTO GERONIMO, respondents.
Caiquep, nor for the forfeiture of the lot in question.
FACTS: Severino Geronimo worked in the petitioner’s land for twenty -Since, both were aware of the existence of the stipulated condition in
years until 1969. Following Severino’s death, an ejectment suit was favor of the original seller, GSIS, yet both entered into an agreement
filed by petitioner, Robles, against Severino’s two sons – Benedicto and violating said condition and nullifying its effects, said parties should be
Atanacio. held in estoppel to assail and annul their own deliberate acts.
Benedicto did not choose to answer and was declared in default.
Atanacio, however, averred that he was entitled to succeed his father,
as Robles’ agricultural tenant, in accordance with R.A. No. 1199 and
Sec. 9 of R.A. No. 3844 which provides that he could remain in Robles’
13 - JOHNNY S. RABADILLA, petitioner, vs. COURT OF APPEALS
land under the same terms and conditions of the original tenancy
AND MARIA MARLENA COSCOLUELLA Y BELLEZA
share arrangement entered into between his father and Robles.
VILLACARLOS, respondents.
Robles, for his part, insists that Severino was never an agricultural
[G.R. No. 113725. June 29, 2000]
tenant but worked merely as a watcher in his land.
Court of Agrarian Relations (CAR) rendered judgment in favor of FACTS: In a Codicil appended to the Last Will and Testament
Atanacio. CA affirmed the decision of CAR. of testatrix Aleja Belleza, Dr. Jorge Rabadilla, (predecessor-in-
interest of Johnny S. Rabadilla) was instituted as a devisee of 511,
ISSUE: WON Atanacio has the right to succeed his father as an
855 square meters of that parcel of land surveyed as Lot No. 1392 of
agricultural tenant. YES
the Bacolod Cadastre. The said Codicil was duly probated and
HELD: As the son of Severino Geronimo, Atanacio had the right to admitted. The relevant provision of the said Codicil which is put to
take over as agricultural tenant in the petitioner’s land in accordance issue is:
with R.A. No. 1199 and R.A. No. 3844.
SIXTH
Obviously, Atanacio was the only heir interested in succeeding his
father as his brother, Benedicto, had not seen fit to claim his right and I command, in this my addition (Codicil) that the Lot No. 1392, in the
in fact defaulted in resisting the petitioner’s claims in the ejectment event that the one to whom I have left and bequeathed, and his heir
suit. Significantly, when in his prayer the petitioner asks for authority shall later sell, lease, mortgage this said Lot, the buyer, lessee,
to appoint the said Benedicto to succeed his father, it is presumably as mortgagee, shall have also the obligation to respect and deliver yearly
his watcher only and not as agricultural tenant. The petitioner’s ONE HUNDRED (100) piculs of sugar to Maria Marlina Coscolluela y
consistent claim, it should be noted, is that Severino Geronimo was not Belleza, on each month of December, SEVENTY FIVE (75) piculs of
his tenant but only his watcher. Export and TWENTY FIVE (25) piculs of Domestic, until Maria Marlina
shall die, lastly should the buyer, lessee or the mortgagee of this lot,
12 - San Agustin vs CA, 371 SCRA 346, December 4, 2001
not have respected my command in this my addition (Codicil), Maria
7
Wills and Succession Case Digests
Marlina Coscolluela y Belleza, shall immediately seize this Lot No. 1392 Aniceto died and was survived by his children, Rufino, Felipe
from my heir and the latter's heirs, and shall turn it over to my near and Teodora, who inherited said lots.
desendants, (sic) and the latter shall then have the obligation to give
Record, however, showed that Fortunato Santiago was
the ONE HUNDRED (100) piculs of sugar until Maria Marlina shall die. I
issued a TCT covering Lot 773 and that he,
further command in this my addition (Codicil) that my heir and his
MonicoFuentebella and Rosendo Alvarez were in possession
heirs of this Lot No. 1392, that they will obey and follow that should
of the same.
they decide to sell, lease, mortgage, they cannot negotiate with others
than my near descendants and my sister. Subsequently, the lots were sold by Santiago to
MonicoFuentebella.
Pursuant to the same Codicil, the lot in dispute was
transferred to Dr. Jorge Rabanilla (deceased) who was survived by his When Fuentebella died, his administratix sold the lots to
wife Rufina and children,Johnny, Aurora, Ofelia and Zenaida. Rosendo Alvarez.
On August 21, 1989, Maria Marlena Coscolluela y Belleza Villacarlos In 1960, the Yanes heirs filed a complaint before the CFI
brought a complaint against the heirs of Dr. Jorge Rabadilla, to enforce against Santiago, Fuentebella and Alvarez for the return of
the provisions of subject Codicil. The plaintiff then prayed that the ownership and possession of the lots.
judgment be rendered ordering defendant-heirs to reconvey/return-Lot
During the pendency of the case, Alvarez sold the lots to
No. 1392 to the surviving heirs of the late Aleja Belleza, the
Rodolfo Siason, and a TCT was issued in Sison’s name.
cancellation of TCT in the name of the deceased, Dr. Jorge Rabadilla,
and the issuance of a new certificate of title in the names of the CFI ruled in favor of Yanes heirs. However, the decision
surviving heirs of the late Aleja Belleza. could not be executed because Siason was in possession and
had a TCT over the lots issued in his name. The CFI had to
On November 15, 1998, an amicable settlement was entered into a
nullify its previous order.
Memorandum of Agreement on the obligation to deliver one hundred
piculs of sugar to Maria. However, there was no compliance with the In 1968, the Yanes heirs filed another action for the
aforesaid Memorandum of Agreement except for a partial delivery of recovery of the lots with damages. They prayed that the TCT
50.80 piculs of sugar corresponding to sugar crop year 1988 -1989. issued to Siason be cancelled for being null and void.
ISSUE: Whether or not the rights and obligations of Dr. Jorge The lower court dismissed the case against Siason for being
Rabadilla were transferred/transmitted to his heirs upon his death. a buyer in good faith. However, Alvarez, who sold the land
to Siason, was adjudged to pay the Yanes heirs P20,000 for
HELD: YES. It is a general rule under the law on succession
the value of the lots with damages.
that successional rights are transmitted from the moment of
death of the decedent and compulsory heirs are called to Rosendo Alvarez died and was succeeded by his heirs.
succeed by operation of law. The legitimate children and
descendants, in relation to their legitimate parents, and the According to the Alvarez heirs, the liability incurred by the
widow or widower, are compulsory heirs. Thus, the petitioner, deceased Rosendo Alvarez and his obligation to pay the
his mother and sisters, as compulsory heirs of the instituted heir, Dr. Yanes heirs should be his sole liability alone or of his estate,
Jorge Rabadilla, succeeded the latter by operation of law, without need after his death and that such obligations are not
of further proceedings, and the successional rights were transmitted to transmissible to his heirs.
them from the moment of death of the decedent, Dr. Jorge Rabadilla. ISSUE:
Under Article 776 of the New Civil Code, inheritance includes all WON the liability of Rosendo Alvarez to pay the
the property, rights and obligations of a person, not Yanes heirs as adjudged by the court is transmissible
extinguished by his death. Conformably, whatever rights Dr. Jorge by operation of law to his legal heirs? – YES.
Rabadilla had by virtue of subject Codicil were transmitted to his
forced heirs, at the time of his death. And since obligations not HELD:
extinguished by death also form part of the estate of the decedent; YES. The liability or obligation of Rosendo Alvarez to pay the
corollarily, the obligations imposed by the Codicil on the deceased Dr. Yanes heirs as adjudged by the court is transmissible by
Jorge Rabadilla, were likewise transmitted to his compulsory heirs operation of law to his legal heirs.
upon his death.
The following are the bases for the ruling:
In the said Codicil, testatrix Aleja Belleza devised Lot No. 1392 to Dr.
Jorge Rabadilla, subject to the condition that the usufruct thereof Art. 774. Succession is a mode of acquisition by virtue
would be delivered to the herein private respondent every year. Upon of which the property, rights and obligations to the
the death of Dr. Jorge Rabadilla, his compulsory heirs succeeded to his extent of the value of the inheritance, of a person are
rights and title over the said property, and they also assumed his transmitted through his death to another or others
(decedent's) obligation to deliver the fruits of the lot involved to herein either by his will or by operation of law.
private respondent. Such obligation of the instituted heir reciprocally Art. 776. The inheritance includes all the property,
corresponds to the right of private respondent over the usufruct, the rights and obligations of a person which are not
fulfillment or performance of which is now being demanded by the extinguished by his death.
latter through the institution of the case at bar. Therefore, private
respondent has a cause of action against petitioner and the trial court Art. 1311. Contracts take effect only between the
erred in dismissing the complaint below. parties, their assigns and heirs except in case where
the rights and obligations arising from the contract are
14 - ALVAREZ vs. IAC and YANES not transmissible by their nature, or by stipulation or by
GR No. L-68053 May 7, 1990 provision of law. The heir is not liable beyond the value
FACTS: of the property received from the decedent.
In 1917, two parcels of land, Lot 773-A and Lot 773-B, The general rule is that a party's contractual rights and
originally known as Lot 773, were registered in the name of obligations are transmissible to the successors.
the heirs of AnicetoYanes.
The binding effect of contracts upon the heirs of the
deceased party is not altered by the provision of Rule 89 of
8
Wills and Succession Case Digests
the Rules of Court that money debts of a deceased must be At the time of the sale, the co-ownership constituted or covered
liquidated and paid from his estate before the residue is these three lots adjacent to each other. And since Flaviano
distributed among said heirs. Moreto was entitled to one-half pro-indiviso of the entire land area or
1,173 sq. meters as his share, he had a perfect legal and lawful right
The reason is that whatever payment is made from the
to dispose of 781 sq.meters of his share to the Pamplona spouses.
estate is ultimately a payment by the heirs, since the
Indeed, there was still a remainder of some 392 sq. meters belonging
amount of the paid claim in fact diminishes or reduces the
to him at the time of the sale.
shares that the heirs would have been entitled to receive.
Under Article 776, New Civil Code, the inheritance which
The rule is a consequence of the progressive private respondents received from their deceased parents
"depersonalization" of patrimonial rights and duties that, as and/or predecessors-in-interest included all the property
observed by VictorioPolacco, has characterized the history of rights and obligations which were not extinguished by their
these institutions. From the Roman concept of a relation parents' death. And under Art. 1311, paragraph1, New Civil
from person to person, the obligation has evolved into a Code, the contract of sale executed by the deceased
relation from patrimony to patrimony with the persons FlavianoMoreto took effect between the parties, their assigns
occupying only a representative position, barring those rare and heirs, who are the private respondents
cases where the obligation is strictly personal, in herein. Accordingly, to the private respondents is transmitted
consideration of its performance by a specific person and by the obligation to deliver in full ownership the whole area of
no other. 781sq. meters to the petitioners (which was the original
obligation of their predecessor Flaviano Moreto) and not only
Petitioners, being the heirs of the late Rosendo Alvarez,
one-half thereof. Private respondents must comply with said
cannot escape the legal consequences of their father's
obligation.
transaction, which gave rise to the present claim for
damages. It is of no moment that petitioners did not inherit 16 - G.R. No. L-44837 November 23, 1938
the property herein because,by legal fiction, the monetary SOCORRO LEDESMA and ANA QUITCO LEDESMA, plaintiffs-
equivalent thereof became their father's hereditary estate, appellees,
vs.
We have ruled that the hereditary assets are always liable in
CONCHITA MCLACHLIN, ET AL., defendants-appellants
their totality for the payment of debts of the estate.
Facts: In the year 1916, the plaintiff Socorro Ledesma lived
It must, however, be made clear that petitioners are liable only to the
maritally with Lorenzo M. Quitco. Out of the cohabitation, a child was
extent of the value of their inheritance.
born, plaintiff Ana Quitco Ledesma, who was acknowledged by Lorenzo
15 - PAMPLONA V MORETO as his natural daughter. Subsequently, Lorenzo issued in favor of
FACTS: Flaviano Moreto and Monica Maniega werehusband and wife. Socorro a promissory note amounting to P2000.00 which remained
During their marriage, they acquired adjacent lots Nos. 1495,4545, unpaid.
and 1496 situated in Calamba, Laguna. They begot 6 children during
Lorenzo died in 1930 without any property, leaving defendant
theirmarriage.
Mclachlin and her children as her compulsory heirs. Two years later,
On May 6, 1946, Monica Maniega died intestatein Calamba, Laguna.
Lorenzo's father Eusebio died, and because Eusebio left some personal
On July 30, 1952, Flaviano Moreto, withoutthe consent of the heirs of
and real properties without a will, an intestate proceeding was
his Monica, and before any liquidation of theconjugal partnership could
instituted.
be effected, executed in favor of GeminianoPamplona, married to
defendant Apolonia Onte, a deed of absolute sale coveringlot No. 1495 Upon the institution of the intestate of the deceased Eusebio Quitco
for P900.00. As a result of the sale, a new transfer certificateof title and the appointment of the committee on claims and appraisal,
was issued in the name of Geminiano Pamplona married to Apolonia Socorro Ledesma filed for the payment of the promissory note before
Onte. the Committee. Subsequently, the court issued an order of declaration
After the execution of the deed of sale, thePamplona and Onte as well of heirs in the intestate of the deceased Eusebio Quitco but however,
as their son, Rafael Pamplona, constructed theirhouse on the eastern Ana Quitco Ledesma was not included among the declared heirs.
part of lot 1496 as Flaviano Moreto, at the time of thesale, pointed to
Plaintiffs now sought recovery of the sum out of the properties
it as the land which he sold to Geminiano Pamplona.
inherited by the defendants from their deceased grandfather by
On August 12, 1956, Flaviano Moreto diedintestate.
representation which were subject to the payment of debts and
In 1961, the plaintiffs demandedon the defendants to vacate the
obligations of their deceased father, who died without leaving any
premises where they had their house and piggeryon the ground that
property.
Flaviano Moreto had no right to sell the lot which he soldto Geminiano
Pamplona as the same belongs to the conjugal partnership ofFlaviano Issue: WON the plaintiffs may recover from the defendants the debt
and his deceased wife and the latter was already dead when the contracted by Lorenzo.
salewas executed without the consent of the plaintiffs who are the
Held: While it is true that under the provisions of articles 924 to
heirs of Monica.
927 of the Civil Code, a child presents his father or mother who died
Pamplona and Onte refused tovacate the premises occupied by them
before him in the properties of his grandfather or grandmother, this
and hence, this suit was instituted by theheirs of Monica Maniega
right of representation does not make the said child answerable for the
seeking for the declaration of thenullity of the deed of sale as regards
obligations contracted by his deceased father or mother, because, as
one-half of the property subject matter of said deed and among
may be seen from the provisions of the Code of Civil Procedure
others.
referring to partition of inheritances, the inheritance is received with
RTC ruled in favor of plaintiffs. CA affirmed.
the benefit of inventory, that is to say, the heirs only answer with the
ISSUE: WON PLAINTIFFS AS MONICA'S HEIRSARE OBLIGED
properties received from their predecessor.
TO DELIVER THE PROPERTY TO PAMPLONA; YES
We have ruled that at the time of the sale in 1952, the conjugal The herein defendants, as heirs of Eusebio Quitco, in representation of
partnership was already dissolved six years before (upon death of their father Lorenzo M. Quitco, are not bound to pay the indebtedness
Monica) and therefore, the estate became a co- of their said father from whom they did not inherit anything.
ownership between Flaviano Moreto, the surviving husband, and the
Therefore, the claim for the payment of an indebtedness contracted by
heirs of his deceased wife, Monica Maniega.
a deceased person cannot be filed for its collection before the
committee on claims and appraisal, appointed in the intestate of his
9
Wills and Succession Case Digests
father, and the properties inherited from the latter by the children of Even if there is an appointed administrator, jurisprudence recognizes
said deceased do not answer for the payment of the indebtedness two exceptions, viz: (1) if the executor or administrator is unwilling or
contracted during the lifetime of said person. refuses to bring suit and (2) when the administrator is alleged to have
participated in the act complained of and he is made a party
Art. 777. The rights to the succession are transmitted from the
defendant. Evidently, the necessity for the heirs to seek judicial relief
moment of the death of the decedent. (657a)
to recover property of the estate is as compelling when there is no
appointed administrator, if not more, as where there is an appointed
17 - RIOFERIO vs CA administrator but he is either disinclined to bring suit or is one of the
FACTS: On May 13, 1995, Alfonso P. Orfinada, Jr. died without a will. guilty parties himself.
He also left a widow, respondent Esperanza P. Orfinada, and 7 children All told, therefore, the rule that the heirs have no legal standing to sue
(respondents). Apart from the respondents, he has a paramour for the recovery of property of the estate during the pendency of
Teodora Riofero, and co-petitioners Veronica, Alberto and Rowena. administration proceedings has three exceptions, the third being when
Respondents discovered that on June 29, 1995, petitioners executed there is no appointed administrator such as in this case.
anExtrajudicial Settlement of Estate of a Deceased Person with
Quitclaim involving the properties of the estate of the decedent and 18 - HEIRS OF CALPATURA, SR vs. PRADO
that accordingly, the Registry of Deeds in Dagupan issued Certificates January 20, 2004
of Titles in favor of petitioners Teodora. Petitioners were able to obtain FACTS: Spouses Patricio Prado Sr. and Narcisa Prado owned a
a loan of P700,000.00 from the Rural Bank of Mangaldan Inc. by residential land. Subsequently, Patricio died. Narcisa subsequently
executing a Real Estate Mortgage over the properties subject of the married Bonifacio Calpatura. In order to support her minor children
extra-judicial settlement. with her first husband, Narcisa sold to her brother-in-law, Tomas
Respondent Alfonso “Clyde” P. Orfinada III filed a Petition for Letters Calpatura, Sr., the northern half portion of the said property.
of Administration before the RTC of Angeles City, praying that letters
of administration be issued to him. Respondents filed a Complaint for On April 8, 1991, respondents, Prado, et al, filed a complaint for
the Annulment/Rescission of Extra Judicial Settlement of Estate of a declaration of nullity of sale and delivery of possession of the northern
Deceased Person with Quitclaim, Real Estate Mortgage and half portion of the subject property against petitioners Calpatura, et al.
Cancellation of Transfer Certificate of Titles with and Other Related Respondents alleged among others that Narcisa, as natural guardian of
Documents with Damages against petitioners, the Rural Bank of her children, had no authority to sell the northern half portion of the
Mangaldan, Inc. and the Register of Deeds of Dagupan City before the property which she and her children co-owned.
Regional Trial Court. ISSUE: WON the sale of Narcisa’s conjugal share is valid.
PETITIONERS contend that the property pertained to the properties
originally belonging to the parents of Teodora Riofero and that the RULING: YES. The property being conjugal, upon the death of Patricio
titles thereof were delivered to her as an advance inheritance but the Prado, Sr., one-half of the subject property was automatically reserved
decedent had managed to register them in his name. They contend to the surviving spouse, Narcisa, as her share in the conjugal
that the respondents are not the real parties-in-interest but rather the partnership. Patricio’s rights to the other half, in turn, were transmitted
Estate of Alfonso O. Orfinada, Jr. in view of the pendency of the upon his death to his heirs, which includes his widow Narcisa, who is
administration proceedings entitled to the same share as that of each of the legitimate children.
TC: court denied the motion saying that respondents, as heirs, are the
Inasmuch as Narcisa inherited one-seventh (1/7) of her husband's
real parties-in-interest especially in the absence of an administrator
conjugal share in the said property and is the owner of one-half (1/2)
who is yet to be appointed in S.P. Case No. 5118.
thereof as her conjugal share, she owns a total of 9/14 of the subject
CA: affirmed the decision.
property. Hence, Narcisa could validly convey her total undivided share
ISSUE: WON the heirs may bring suit to recover property of the
in the entire property to Tomas. Narcisa and her children are deemed
estate pending the appointment of an administrator? YES
co-owners of the subject property.
HELD: Pending the filing of administration proceedings, the heirs
without doubt have legal personality to bring suit in behalf of the While Narcisa could validly sell one half of the subject property, her
estate of the decedent in accordance with the provision of Article 777 share being 9/14 of the same, she could not have particularly
of the New Civil Code “that (t)he rights to succession are conveyed the northern portion thereof before the partition, the terms
transmitted from the moment of the death of the of which was still to be determined by the parties before the trial
decedent.” The provision in turn is the foundation of the principle court.
that the property, rights and obligations to the extent and value of the
19 - EDUARDO FELIPE, HERMOGENA V. FELIPE AND VICENTE
inheritance of a person are transmitted through his death to another
V. FELIPE, petitioners,
or others by his will or by operation of law
vs.
Even if administration proceedings have already been commenced, the
HEIRS OF MAXIMO ALDON, NAMELY: GIMENA ALMOSARA,
heirs may still bring the suit if an administrator has not yet been
SOFIA ALDON, SALVADOR ALDON, AND THE HONORABLE
appointed. This is the proper modality despite the total lack of
COURT OF APPEALS, respondents.
advertence to the heirs in the rules on party representation, namely
Section 3, Rule 3 and Section 2, Rule 8] of the Rules of Court. FACTS: Maximo Aldon married Gimena Almosara in 1936. The spouses
Gochan v. Young this Court recognized the legal standing of the heirs bought several pieces of land in Masbate. In 1951, Gimena Almosara
to represent the rights and properties of the decedent under sold the THREE lots to the spouses Eduardo Felipe and Hermogena V.
administration pending the appointment of an administrator. Thus: Felipe. The sale was made without the consent of her husband,
These rules are easily applicable to cases in which an Maximo.
administrator has already been appointed. But no rule
On 1976, the heirs of Aldon filed a complaint against the Felipes to
categorically addresses the situation in which special
recover the said properties alleging that were the owners of the lots
proceedings for the settlement of an estate have already been
that they had orally mortgaged the same to the defendants and an
instituted, yet no administrator has been appointed.
offer to redeem the mortgage had been refused.
In such instances, the heirs cannot be expected to wait for the
appointment of an administrator; then wait further to see if the The RTC ruled in favor of the Felipes however, this was reversed by
administrator appointed would care enough to file a suit to protect the the CA ruling that the plaintiffs are entitled to recover the ownership of
rights and the interests of the deceased; and in the meantime do the lots in question. Concerning the sale made in 1951 of the disputed
nothing while the rights and the properties of the decedent are lots, it is not a forgery. The fact is that the sale made by Gimena
violated or dissipated.
10
Wills and Succession Case Digests
Almosara is "invalid" having been executed without the needed for four years since the loss of the vessel" before he can be presumed
consent of her husband, the lots being conjugal. dead for all purposes. Applied to Capt. LUCERO, it is evidently
premature to presume him dead as four years has not yet expired.
ISSUE 1: What is the nature of the contract
Indeed, by the terms of the appointment of Capt. LUCERO, his
HELD: VOIDABLE . According to Article 166 of the CC, subject to
engagement terminates upon the return of the vessel at the Port of
certain exceptions, the husband cannot alienate or encumber any real
Manila. He is considered to be still working entitling his spouse to
property of the conjugal partnership without the wife's consent. In this
allotment until the vessel returns or until it is officially declared totally
case, Gimena,the wife, sold lands belonging to the conjugal
lost, or until the presumption of his death becomes effective in which
partnership without the consent of the husband and the sale is not
case the burden of proving that he is alive is shifted to his wife for
covered by the phrase "except in cases provided by law."
purposes of continuing her allotment.
ISSUE 2: Can the heirs of Aldon ask for the annulment said voidable
Article 391 of the Civil Code provides that:
contract?
HELD: NO. The voidable contract of Gimena was subject to annulment Art. 391. The following shall be presumed dead for all purposes,
by her husband only during the marriage because he was the victim including the division of the estate among the heirs: (1) A person on
who had an interest in the contract. Gimena, who was the party board a vessel lost during a sea voyage, or an aeroplane which is
responsible for the defect, could not ask for its annulment. missing, who has not been heard of for four years since the loss of the
vessel or aeroplane.
Their children could not likewise seek the annulment of the contract
while the marriage subsisted because they merely had an inchoate Issue: Whether or not presumption of death under Article 391 (1)
right to the lands sold. would apply. NO
The case of Sofia and Salvador Aldon is DIFFERENT. After the death of Held: It is undisputed that on February 16, 1980, the Company
Maximo they acquired the right to question the defective contract received three (3) radio messages from Capt. Lucero on board the M/V
insofar as it deprived them of their hereditary rights in their father's Eastern Minicon the last of which, received at 9:50 p.m. of that day,
share in the lands. The children's cause of action accrued from the was a call for immediate assistance in view of the existing "danger":
death of their father in 1959 and they had thirty (30) years to institute "sea water was entering the hatch"; the vessel "was listing 50 to 60
it (Art. 1141, Civil Code.) They filed action in 1976 which is well within degrees port," and they were "preparing to abandon the ship any
the period. time.' After this message, nothing more has been heard from the
vessel or its crew until the present time.
20 - G.R. No. L-60101 August 31, 1983
EASTERN SHIPPING LINES, INC There is thus enough evidence to show the circumstances attending
vs. the loss and disappearance of the M/V Eastern Minicon and its
JOSEPHINE LUCERO crew. The foregoing facts, quite logically, are sufficient to lead
us to a moral certainty that the vessel had sunk and that the
Facts: On October 31, 1979, Capt. Julio J. Lucero, Jr. was appointed
persons aboard had perished with it. Upon this premise, the rule
by petitioner Eastern Shipping Lines, Inc, as master/captain to its
on presumption of death under Article 391 (1) of the Civil Code must
vessel M/V Eastern Minicon plying the Hongkong – Manila route. Under
yield to the rule of preponderance of evidence. As this Court said
the contract, his employment was good for one (1) round trip only,
in Joaquin vs. Navarro". Where there are facts, known or knowable,
i.e., the contract would automatically terminate upon arrival of the
from which a rational conclusion can be made, the presumption does
vessel at the Port of Manila, unless renewed. It was further agreed
not step in, and the rule of preponderance of evidence controls."
that part of the captain's salary, while abroad, should be paid to Mrs.
Josephine Lucero, his wife, in Manila. 21 - EMILIO EMNACE, petitioner, vs. COURT OF APPEALS,
ESTATE OF VICENTE TABANAO, SHERWIN TABANAO, VICENTE
On February 16, 1980, while the vessel was enroute from Hongkong to
WILLIAM TABANAO, JANETTE TABANAO DEPOSOY, VICENTA
Manila where it was expected to arrive on February 18, 1980, Capt.
MAY TABANAO VARELA, ROSELA TABANAO and VINCENT
Lucero sent three (3) messages to the Company's Manila office. The
TABANAO, respondents.[G.R. No. 126334. November 23,
last message was:
2001]
FEBRUARY 16/80 2150 HRS
Topic: Article 777. The rights to the succession are transmitted from
PHILIPPINE COAST GUARD the moment of the death of the decedent.
NEED IMMEDIATE ASSISTANCE POSITION 19-35 N 116-40 E Facts:
SEAWATER ENTERING INSIDE HATCH VESSEL INCLINING 15 TO 20
Petitioner Emilio Emnace, Vicente Tabanao and
DEGREES PORT IF POSSIBLE SEND IMMEDIATE ASSISTANCE VESSEL
JacintoDivinagracia were partners in a business, the Ma. Nelma
IN DANGER PREPARING TO ABANDON ANYTIME
Fishing Industry.
MASTER
In 1986, they decided to dissolve their partnership and executed an
On July 16, 1980, Mrs. Lucero filed a complaint with the National agreement of partition and distribution of the partnership properties
Seamen Board, for payment of her accrued monthly allotment and for among them, consequent to Divinagracia’s withdrawal from the
continued payment of said allotments until the M/V Minicon shall have partnership.
returned to the port of Manila. She contended that the contract of
Assets to be distributed: 5 fishing boats, 6 vehicles, 2 parcels of land
employment entered into by her husband with the Company was on a
and cash deposits in BPI and Prudential Bank.
voyage-to-voyage basis, and that the same was to terminate only
upon the vessel's arrival in Manila. Throughout the existence of the partnership, and even after Tabanao’s
untimely demise in 1994, Emnace failed to submit to Tabanao’s heirs
On May 19, 1981, the Board rendered judgment in favor of Mrs.
any statement of assets and liabilities of the partnership, and to render
Josephine Lucero and against petitioner Company. The Board held that
an accounting of the partnership’s finances. Emnace also reneged on
the presumption of death could not be applied because the four-year
his promise to turn over to Tabanao’s heirs the deceased’s 1/3 share in
period provided for by Article 391(l) of the Civil Code had not yet
the total assets of the partnership, amounting to P30M or the sum of
expired.
P10M.
National Labor Relations Commission affirmed the said decision. It held
Tabanao’s heirs, respondents herein, filed against Emnace an action
that the person to be presumed dead should first "not been heard of
for accounting, payment of shares, division of assets and damages. In
11
Wills and Succession Case Digests
the amended complaint, the respondents are asking for Emnace to be Cayetano Dizon, Francisco Rivera, Agripina Ayson, Jolly Jimenez and
ordered to “sell all (the partnership’s) assets and thereafter Laureano Tiambon
pay/remit/deliver/surrender/yield to the plaintiffs” their corresponding
share in the proceeds thereof. In her will, the testatrix divided, distributed and disposed of all her
properties appraised at P1,801,960.00 (except, two small parcels of
Emanace’s defense in relation to Art 777: Lack of capacity of the
land appraised at P5,849.60, household furniture valued at P2,500.00,
estate of Tabanao to sue. Emnace asserts that the surviving spouse of
a bank deposit in the sum of P409.95 and ten shares of Pampanga
Vicente Tabanao has no legal capacity to sue since she was never
Sugar Development Company valued at P350.00) among her
appointed as administratrix or executrix of his estate.
abovenamed heirs.
Issue: W/N the heirs have legal capacity to sue -- YES
The real and personal properties of the testatrix at the time of her
Ruling:
death thus had a total appraised value of P1,811,695.60, and the
Petitioner The surviving spouse does not need to be appointed as legitime of each of the seven compulsory heirs amounted to
executrix or administratrix of the estate before she can file the P129,362.11. 3 (1/7 of the half of the estate reserved for the legitime
action. She and her children are complainants in their own right as of legitimate children and descendants).
successors of Vicente Tabanao.
In her will, the testatrix "commanded that her property be divided" in
From the very moment of Vicente Tabanao’s death, his rights insofar accordance with her testamentary disposition, whereby
as the partnership was concerned were transmitted to his heirs, for she devised and bequeathed specific real properties comprising
rights to the succession are transmitted from the moment of death of practically the entire bulk of her estate among her six children and
the decedent. eight grandchildren.
Whatever claims and rights Vicente Tabanao had against the
partnership and petitioner were transmitted to respondents by Marina as executrix filed a project partition adjudicating the estate of
operation of law, more particularly by succession, which is a mode of the deceased. This was opposed by the other 6 of the 7
acquisition by virtue of which the property, rights and obligations to abovementioned.
the extent of the value of the inheritance of a person are transmitted.
ISSUE: WON the persons named in the will are considered as heirs or
Moreover, respondents became owners of their respective hereditary as devisees or legatees because the repetition of the phrase “I
shares from the moment Vicente Tabanao died. A prior settlement of bequeath”
the estate, or even the appointment of Salvacion Tabanao as executrix
or administratrix, is not necessary for any of the heirs to acquire legal Held: As heirs.
capacity to sue. As successors who stepped into the shoes of their
decedent upon his death, they can commence any action originally Articles 788 and 791 of the NCC provide:
pertaining to the decedent. From the moment of his death, his rights
as a partner and to demand fulfillment of petitioner’s obligations as "(I)f a testamentary disposition admits of different interpretations, in
outlined in their dissolution agreement were transmitted to case of doubt, that interpretation by which the disposition is to be
respondents. operative shall be preferred" and "(T)he words of a will are to receive
They, therefore, had the capacity to sue and seek the court’s an interpretation which will give to every expression some effect,
intervention to compel petitioner to fulfill his obligations. rather than one which will render any of .the expressions inoperative;
and of two modes of interpreting a will, that is to be preferred which
will prevent intestacy."

NO 2nd Set In Villanueva vs. Juico 6 for violation of these rules of interpretation
as well as of Rule 123, section 59 of the old Rules of Court, 7 the
Court, speaking through Mr. Justice J.B.L. Reyes, overturned the lower
3rd Set court's decision and stressed that "the intention and wishes of the
ARTICLE 788 testator, when clearly expressed in his will, constitute the fixed law of
interpretation, and all questions raised at the trial, relative to its
Dizon Rivera vs Dizon execution and fulfillment, must be settled in accordance therewith,
following the plain and literal meaning of the testator's words, unless it
MARINA DIZON-RIVERA, executrix-appellee, vs. ESTELA DIZON, clearly appears that his intention was otherwise."
TOMAS V. DIZON, BERNARDITA DIZON, JOSEFINA DIZON, ANGELINA
DIZON and LILIA DIZON, oppositors-appellants. The testator's wishes and intention constitute the first and principal
law in the matter of testaments, and to paraphrase an early decision of
FACTS: On January 28, 1961, the testatrix, Agripina J. Valdez. a the Supreme Court of Spain. 9 when expressed clearly and precisely in
widow, died in Angeles, Pampanga, and was survived by seven his last will amount to the only law whose mandate must imperatively
compulsory heirs, to wit, six legitimate children named Estela Dizon, be faithfully obeyed and complied with by his executors, heirs and
Tomas V. Dizon, Bernardita Dizon, Marina Dizon (herein executrix- devisees and legatees, and neither these interested parties nor the
appellee), Angelina Dizon and Josefina Dizon, and a legitimate grand- courts may substitute their own criterion for the testator's will. Guided
daughter named Lilia Dizon, who is the only legitimate child and heir of and restricted by these fundamental premises, the Court finds for the
Ramon Dizon, a pre-deceased legitimate son of the said decedent appellee.

Six of these seven compulsory heirs (except Marina Dizon, the Decisive of the issues at bar is the fact that the testatrix'
executrix-appellee) are the oppositors-appellants. testamentary disposition was in the nature of a partition of
her estate by will. Thus, in the third paragraph of her will after
The deceased testatrix left a last will executed on February 2, I960 and commanding that upon her death all her obligations as well as the
written in the Pampango dialect. Named beneficiaries in her will were expenses of her last illness and funeral and the expenses for probate
the above-named compulsory heirs, together with seven other of her last will and for the administration of her property in accordance
legitimate grandchildren, namely Pablo Rivera, Jr., Gilbert D. Garcia, with law, be paid, she expressly provided that "it is my wish and I
12
Wills and Succession Case Digests
command that my property be divided" in accordance with the
dispositions immediately thereafter following, whereby she specified The plaintiff Leonor Villaflor Vda. de Villanueva is admitted to be the
each real property in her estate and designated the particular heir same Leonor Villaflor mentioned by Don Nicolas Villaflor in his will as
among her seven compulsory heirs and seven other grandchildren to his "sobrina nieta Leonor Villaflor".
whom she bequeathed the same. This was a valid partition 10 of her
estate, as contemplated and authorized in the first paragraph of Article
1080 of the Civil Code, providing that "(S)hould a person make a Plaintiff Leonor Villaflor instituted the present action against the
partition of his estate by an act inter vivos or by will, such partition administrator of the estate of the widow Fausta Nepomuceno, on
shall be respected, insofar as it does not prejudice the legitime of the February 8, 1958, contending that upon the widow's death, said
compulsory heirs." This right of a testator to partition his estate is plaintiff became vested with the ownership of the real and personal
subject only to the right of compulsory heirs to their legitime properties bequeathed by the late Nicolas Villaflor to clause 7 of his
will, pursuant to its eight (8th) clause. Defendant's position, adopted
The repeated use of the words — "I bequeath'' in the testamentary by the trial court, is that the title to the properties aforesaid became
dispositions acquire no legal significance, such as to convert the same absolutely vested in the widow upon her death, on account of the fact
into devises to be taken solely from the free one-half disposable that she never remarried.
portion of the estate, where it clearly appears from the whole context
of the will and the disposition by the testatrix of her whole estate that
her clear intention was to partition her whole estate through her will. ISSUE: W/N the subject properties became absolutely vested in the
The testatrix intent that her testamentary dispositions were by way of widow upon her death. NO.
adjudications to her beneficiaries as heirs and not as devisees, and
that said dispositions are on account of the respective legitime of the
RULING: We agree with appellant that the plain desire and intent of
compulsory heirs is expressly borne out in the testamentary
the testator, as manifested in clause 8 of his testament, was to invest
adjudications which state that "in case any of those I name as my
his widow with only a usufruct or life tenure in the properties
heirs in this testament any of them shall die before I do, his forced
described in the seventh clause, subject to the further condition
heirs under the law enforced at the time of my death shall inherit the
(admitted by the appellee) that if the widow remarried, her rights
properties I bequeath to said deceased
would thereupon cease, even during her own lifetime. That the widow
was meant to have no more than a life interest in those properties,
even if she did not remarry at all, is evident from the expressions used
Vda. De Villanueva vs Juico by the deceased "uso y posesion mientras viva" (use and possession
while alive) in which the first half of the phrase "uso y posesion"
G.R. No. L-15737 February 28, 1962 instead of "dominio" or "propiedad") reinforces the second ("mientras
LEONOR VILLAFLOR VDA. DE VILLANUEVA, plaintiff-appellant, viva"). The testator plainly did not give his widow the full ownership of
vs.DELFIN N. JUICO, in his capacity as Judicial Administrator these particular properties, but only the right to their possession and
of the testate estate of FAUSTA NEPOMUCENO,defendant- use (or enjoyment) during her lifetime. This is in contrast with the
appellee. remainder of the estate in which she was instituted universal heir
together with the testator's brother (clause 6).

FACTS: On October 9, 1908, Don Nicolas Villaflor, a wealthy man of


Castillejos, Zambales, executed a will in Spanish in his own The court below, in holding that the appellant Leonor Villaflor, as
handwriting, devising and bequeathing in favor of his wife, Dona reversionary legatee, could succeed to the properties bequeathed by
Fausta Nepomuceno, one-half of all his real and personal properties, clause 7 of the testament only in the event that the widow remarried,
giving the other half to his brother Don Fausto Villaflor. has unwarrantedly discarded the expression "mientras viva," and
The 12th clause of the will provided, however, that Clauses 6th and considered the words "uso y posesion" as equivalent to "dominio"
7th thereof would be deemed annulled from the moment he bore any (ownership). In so doing, the trial court violated Article 791 of the Civil
child with Doña Fausta Nepomuceno. Code of the Philippines.

Don Nicolas Villaflor died on March 3, 1922, without begetting any Speculation as to the motives of the testator in imposing the conditions
child with his wife Doña Fausta Nepomuceno. The latter, already a contained in clause 7 of his testament should not be allowed to
widow, thereupon instituted Special Proceeding No. 203 of the Court of obscure the clear and unambiguous meaning of his plain words, which
First Instance of Zambales, for the settlement of her husband's estate are over the primary source in ascertaining his intent. It is well to note
and in that proceeding, she was appointed judicial administratrix. In that if the testator had intended to impose as sole condition the non-
due course of administration, she submitted a project of partition, In remarriage of his widow, the words "uso y posesion mientras viva"
the order of November 24, 1924, the probate court approved the would have been unnecessary, since the widow could only remarry
project of partition and declared the proceeding closed. As the project during her own lifetime.
of partition now shows Doña Fausta Nepomuceno received by virtue
thereof the ownership and possession of a considerable amount of real Technical words in a will are to be taken in their technical sense,
and personal estate. By virtue also of the said project of partition, she unless the context clearly indicates a contrary intention, or unless it
received the use and possession of all the real and personal properties satisfactorily appears that the will was drawn solely by the testator,
mentioned and referred to in Clause 7th of the will. The order and that he was unacquainted with such technical sense.
approving the project of partition, however, expressly provided that
approval thereof was "sin perjuicio de lo dispuesto en la clausula 8.o
del testamento de Nicolas Villaflor." . The Supreme Court has laid the doctrine in In re Estate of Calderon,
On May 1, 1956, Doña Fausta Nepomuceno died without having 26 Phil., 233, that the intention and wishes of the testator, when
contracted a second marriage, and without having begotten any child clearly expressed in his will, constitute the fixed law of interpretation,
with the deceased Nicolas Villaflor. Her estate is now being settled in and all questions raised at the trial, relative to its execution and
Special Proceeding No. Q-1563 in the lower court, with the defendant fulfillment, must be settled in accordance therewith, following the plain
Delfin N. Juico as the duly appointed and qualified judicial and literal meaning of the testator's words, unless it clearly appears
administrator. that his intention was otherwise.
13
Wills and Succession Case Digests
directed to render accounts and to proceed to the partition of the said
As already shown, the testament of Don Nicolas Villaflor clearly and estates.
unmistakably provided that his widow should have the possession and
use of the legacies while alive and did not remarry. It necessarily The controversy between the parties upon this branch of the case is as
follows that by the express provisions of the 8th clause of his will, the follows:
legacies should pass to the testator's "sobrinanieta", appellant herein, The defendant claims that the plaintiff is entitled to nothing under the
upon the widow's death, even if the widow never remarried in her wills, because the gift to him was conditional, the condition being that
lifetime. Consequently, the widow had no right to retain or dispose of he should be the natural son of Don Clemente, recognized by the latter
the aforesaid properties, and her estate is accountable to the as such in one of the ways pointed out by the Civil Code; that he can
reversionary legatee for their return, unless they had been lost due to not prove such recognition, the parol evidence presented at the trial
fortuitous event, or for their value should rights of innocent third being prohibited by said Code, and that he has therefore not complied
parties have intervened. with the condition.

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
Del Rosario vs Del Rosario that in any event the bequests are made to the plaintiff by name.

RAMON DEL ROSARIO, plaintiff-appellee, vs. CLEMENTE DEL RULING: The court below, holding the parol evidence immaterial,
ROSARIO, defendant-appellant. ordered judgment for the plaintiff as prayed for.
WILLARD, J.: (1) So far as the disposition of that part of the inheritance left in the
aunt's will to Doña Luisa for life is concerned, the question is free from
FACTS: Don Nicolas del Rosario died in this city on July 14, 1897, doubt. It is distinctly declared that Ramon del Rosario and Enrique
leaving a last will, the eighth, ninth, eleventh, and eighteenth clauses Gloria shall take certain parts of it after 1,000 pesos have been
of which are as follows: deducted. They are pointed out by name as the legatees. It is true
that they are called the natural sons of Don Clemente. But this is
 Eight. The testator declares that the 5,000 pesos which he brought to merely a further description of persons already well identified, and, if
his marriage he hereby bequeathes to his nephew Enrique Gloria y false, can be rejected in accordance with the provision of article 773 of
Rosario and Ramon del Rosario, natural children of his brother the Civil Code, which by article 789 is applicable to legatees.
Clemente del Rosario, notwithstanding the fact that they purport to be
the issue of the marriage of Escolastico Gloria and Rosendo del
Rosario, successively. Balanay vs Martinez
 Ninth. The testator declares that the said sum of 5,000 pesos is to be
divided, 3,000 pesos for the first named and 2,000 pesos for the G.R. No. L-39247 June 27, 1975
second named, the delivery of the said sums to be effected by the wife petitioner, vs. HON. ANTONIO M. MARTINEZ, Judge of the
of the testator, provided that these young men behave themselves as Court of First Instance of Davao, Branch VI; AVELINA B.
they have done up to the present time, and do not cease to study until ANTONIO and DELIA B. LANABAN, respondents.
taking the degree of bachelor of arts, and then take a business course,
if their health will permit, their support to be paid out of the Facts:
testamentary estate and they to live in the house of the widow. Leodegaria Julian was survived by her husband, Felix Balanay, Sr., and
by their six legitimate children named Felix Balanay, Jr., Avelina B.
 Eleventh. The testator declares that in a case the said young men
Antonio, Beatriz B. Solamo, Carolina B. Manguiob, Delia B. Lanaban
should be still engaged in study at the time of the death of the
and Emilia B. Pabaonon.
testator's wife, they shall continue to be supported at the expense of
the testamentary estate, without deducting such expenses from their
Felix J. Balanay, Jr. filed a petition for the probate of his mother's
legacies, if they should desire to continue the same studies.
notarial will dated September 5, 1970 which is written in English. In
 Eighteenth. The testator further states that although his wife is at the
that will Leodegaria Julian declared (a) that she was the owner of the
present time fifty-five years of age, and consequently is not likely to
"southern half of nine conjugal lots; (b) that she was the absolute
marry again, as she herself says, nevertheless it is impossible that the
owner of two parcels of land which she inherited from her father, and
opposite of what she asserts might occur, and, if so, then it is to be
(c) that it was her desire that her properties should not be divided
regarded as sufficient reason to authorize the young men Ramon and
among her heirs during her husband's lifetime and that their legitimes
Enrique, so often referred to, separate from their aunt, in which event
should be satisfied out of the fruits of her properties. Then, in
they are to be supported by the testamentary estate on a small
paragraph V of the will she stated that after her husband's death her
allowance of twenty-five pesos per month, provided that they continue
paraphernal lands and all the conjugal lands (which she described as
their studies or should be in poor health, this without in any respect
"my properties") should be divided and distributed in the manner set
reducing the amount of their shares.
forth in that part of her will. She devised and partitioned the conjugal
lands as if they were all owned by her. She disposed of in the will her
Don Ramon del Rosario, one of the persons mentioned in these husband's one half share of the conjugal assets.
clauses, brought this action in 1902 against Don Clemente del Rosario,
the then executor, asking, among other things, that the said executor Felix Balanay, Sr. and Avelina B. Antonio opposed the probate of the
pay him an allowance from the death of the widow of the testator at will. Felix Balanay, Jr., in his reply attached thereto an affidavit of Felix
the rate of 75 pesos a month, and that the executor allow him to live Balanay, Sr. wherein he withdrew his opposition to the probate of the
in the house in which the widow was living at that time. will and signed an instrument captioned "Conformation (sic) of Division
The widow of the testator, Doña Honorata Valdez, died on July 7, and Renunciation of Hereditary Rights" wherein he manifested that he
1900. "waived and renounced' his hereditary rights in her estate in favor of
The court below ordered judgment in respect to this allowance, and their six children. In that same instrument he confirmed the
the right to live in the house as prayed for by the plaintiff. agreement, which he and his wife had perfected before her death, that
Don Ramon del Rosario claims in this action that he is now entitled, by their conjugal properties would be partitioned in the manner indicated
virtue of both wills, to a certain part of the share of the estates left to in her will.
said Doña Luisa during her life, and he asks that the defendant be
14
Wills and Succession Case Digests
Avelina B. Antonio contended that the affidavit and "conformation" of ART. 1080. Should a person make a partition of his estate by an
Felix Balanay, Sr. were void. The lower court "denied" the opposition act inter vivos, or by will, such partition shall be respected, insofar as it
and reset for hearing the probate of the will. It gave effect to the does not prejudice the legitime of the compulsory heirs.
affidavit and conformity of Felix Balanay, Sr. Mrs. Antonio moved for A parent who, in the interest of his or her family, to keep any
the reconsideration of the lower court's order on the grounds (a) that agricultural, industrial, or manufacturing enterprise intact, may avail
the testatrix illegally claimed that she was the owner of the southern himself of the right granted him in this article, by ordering that the
half of the conjugal lots and (b) that she could not partition the legitime of the other children to whom the property is not assigned be
conjugal estate by allocating portions of the nine lots to her children. paid in cash. (1056a)

In the meanwhile, David O. Montaña, Sr., claiming to be the lawyer of The testatrix in her will made a partition of the entire conjugal estate
petitioner Felix Balanay, Jr. (his counsel of record was Atty. Cabreros), among her six children (her husband had renounced his hereditary
filed a motion to withdraw probate of alleged will of Leodegaria Julian rights and his one-half conjugal share). She did not assign the whole
and requesting authority to proceed by intestate estate proceeding." estate to one or more children as envisaged in article 1080. Hence, she
had no right to require that the legitimes be paid in cash. On the other
The lower court, acting on the motions of Atty. Montaña, adopted the hand, her estate may remain undivided only for a period of twenty
view of Attys. Montaña and Guyo that the will was void. So, it years. So, the provision that the estate should not be divided during
dismissed the petition for the probate, converted the testate her husband's lifetime would at most be effective only for twenty years
proceeding into an intestate proceeding, ordered the issuance of a from the date of her death unless there are compelling reasons for
notice to creditors and set the intestate proceeding for hearing. The terminating the coownership (Art. 1083, Civil Code).
lower court did not abrogate its prior orders of June 18 and October Felix Balanay, Sr. could validly renounce his hereditary rights and his
15, 1973. one-half share of the conjugal partnership (Arts. 179[1] and 1041, Civil
Code) but insofar as said renunciation partakes of a donation of his
Felix Balanay, Jr.,asked for the reconsideration on the ground that hereditary rights and his one-half share in the conjugal estate (Art.
Atty. Montaña had no authority to withdraw the petition for the 1060[1] Civil Code), it should be subject to the limitations prescribed in
allowance of the will. Avelina B. Antonio and Delia B. Lanaban opposed articles 750 and 752 of the Civil Code. A portion of the estate should
the motion for reconsideration. The lower court denied the motion. be adjudicated to the widower for his support and maintenance. Or at
Issue: least his legitime should be respected.
Whether the probate court erred in passing upon the intrinsic validity
of the will, before ruling on its allowance or formal validity. NO Subject to the foregoing observations and the rules on collation, the
Whether the probate court erred in declaring the will void. will is intrinsically valid and the partition therein may be given effect if
YES (Article 792) it does not prejudice the creditors and impair the legitimes. The
Held: distribution and partition would become effective upon the death of
The trial court acted correctly in passing upon the will's intrinsic Felix Balanay, Sr. In the meantime, the net income should be equitably
validity even before its formal validity had been established. The divided among the children and the surviving spouse.
probate of a will might become an idle ceremony if on its face it
appears to be intrinsically void. Where practical considerations demand It should be stressed that by reason of the surviving husband's
that the intrinsic validity of the will be passed upon, even before it is conformity to his wife's will and his renunciation of his hereditary
probated, the court should meet the issue. rights, his one-half conjugal share became a part of his deceased
wife's estate. His conformity had the effect of validating the partition
But the probate court erred in declaring that the will was void and in made in paragraph V of the will without prejudice, of course, to the
converting the testate proceeding into an intestate proceeding rights of the creditors and the legitimes of the compulsory heirs.
notwithstanding the fact that in its order of June 18, 1973 , it gave
effect to the surviving husband's conformity to the will and to his Article 793 of the Civil Code provides that "property acquired after the
renunciation of his hereditary rights which presumably included his making of a will shall only pass thereby, as if the testator had it at the
one-half share of the conjugal estate. time of making the will, should it expressly appear by the will that such
was his intention". Under article 930 of the Civil Code "the legacy or
The rule is that "the invalidity of one of several dispositions contained devise of a thing belonging to another person is void, if the testator
in a will does not result in the invalidity of the other dispositions, erroneously believed that the thing pertained to him. But if the thing
unless it is to be presumed that the testator would not have made bequeathed, though not belonging to the testator when he made the
such other dispositions if the first invalid disposition had not been will, afterwards becomes his, by whatever title, the disposition shall
made" (Art. 792, Civil Code). "Where some of the provisions of a take effect."
will are valid and others invalid, the valid parts will be upheld if they
can be separated from the invalid without defeating the intention of In the instant case there is no doubt that the testatrix and her
the testator or interfering with the general testamentary scheme, or husband intended to partition the conjugal estate in the manner set
doing injustice to the beneficiaries" (95 C.J.S. 873). forth in paragraph V of her will. It is true that she could dispose of by
will only her half of the conjugal estate (Art. 170, Civil Code) but since
The statement of the testatrix that she owned the "southern the husband, after the dissolution of the conjugal partnership, had
half of the conjugal lands is contrary to law because, although assented to her testamentary partition of the conjugal estate, such
she was a co-owner thereof, her share was inchoate partition has become valid, assuming that the will may be probated.
and proindiviso (Art. 143, Civil Code). But that illegal
declaration does not nullify the entire will. It may be In the instant case, the preterited heir was the surviving spouse. His
disregarded. preterition did not produce intestacy. Moreover, he signified his
conformity to his wife's will and renounced his hereditary rights. .
The provision of the will that the properties of the testatrix should not It results that the lower court erred in not proceeding with the probate
be divided among her heirs during her husband's lifetime but should of the will as contemplated in its uncancelled order of June 18, 1973.
be kept intact and that the legitimes should be paid in cash is contrary
to article 1080 of the Civil Code which reads:

15
Wills and Succession Case Digests
ARTICLE 789 male relative, he must have had in mind his nephew or a son of his
sister, who would be his third-degree relative, or possibly a
Estate of Rigor vs Rigor grandnephew. But since he could not prognosticate the exact date of
his death or state with certitude what category of nearest male relative
ESTATE OF RIGOR VS RIGOR would be living at the time of his death, he could not specify that his
G.R. No. L-22036 April 30, 1979 nearest male relative would be his nephew or grandnephews (the son
of his nephew or niece) and so he had to use the term "nearest male
FACTS: Father Rigor, the parish priest of Pulilan, Bulacan, died on relative".
August 9, 1935, leaving a will executed on October 29, 1933 which
was probated by the CFI in its order of December 5, 1935 It is contended by the legal heirs that the said devise was in reality
intended for Ramon Quiambao, the testator's nephew and godchild,
This case is about the efficaciousness or enforceability of a devise of who was the son of his sister, Mrs. Quiambao. To prove that
ricelands located at Guimba, Nueva Ecija, with a total area of around contention, the legal heirs presented in the lower court the affidavit of
forty- four hectares That devise was made in the will of the late Father Beatriz Gamalinda, the maternal grandmother of Edgardo Cunanan,
Pascual Rigor, in favor of his nearest male relative who would study for who deposed that after Father Rigor's death her own son, Valentin
the priesthood. Gamalinda, Jr., did not claim the devise, although he was studying for
on February 19, 1954, the parish priest of Victoria filed in the pending the priesthood at the San Carlos Seminary, because she (Beatriz) knew
testate proceeding a petition praying for the appointment of a new that Father Rigor had intended that devise for his nearest male relative
administrator (succeeding the deceased administration Florencia beloning to the Rigor family (pp. 105-114, Record on Appeal).
Rigor), who should deliver to the church the said ricelands, and further Mrs. Gamalinda further deposed that her own grandchild, Edgardo G.
praying that the possessors thereof be ordered to render an Cunanan, was not the one contemplated in Father Rigor's will and that
accounting of the fruits. Edgardo's father told her that he was not consulted by the parish
The intestate heirs of Father Rigor countered with a petition dated priest of Victoria before the latter filed his second motion for
March 25, 1957 praying that the bequest be declared inoperative and reconsideration which was based on the ground that the testator's
that they be adjudged as the persons entitled to the said ricelands grandnephew, Edgardo, was studying for the priesthood at the San
since, as admitted by the parish priest of Victoria, "no nearest male Jose Seminary.
relative of" the testator "has ever studied for the priesthood" Parenthetically, it should be stated at this juncture that Edgardo
ISSUE: WON the will executed was operative? NO ceased to be a seminarian in 1961. For that reason, the legal heirs
apprised the Court of Appeals that the probate court's order
HELD: The will of the testator is the first and principal law in the adjudicating the ricelands to the parish priest of Victoria had no more
matter of testaments. When his intention is clearly and precisely leg to stand on (p. 84, Appellant's brief).
expressed, any interpretation must be in accord with the plain and
literal meaning of his words, except when it may certainly appear that Of course, Mrs. Gamalinda's affidavit, which is tantamount to evidence
his intention was different from that literally expressed. aliunde as to the testator's intention and which is hearsay, has no
probative value. Our opinion that the said bequest refers to the
From the foregoing testamentary provisions, it may be deduced that testator's nephew who was living at the time of his death, when his
the testator intended to devise the ricelands to his nearest male succession was opened and the successional rights to his estate
relative who would become a priest, who was forbidden to sell the became vested, rests on a judicious and unbiased reading of the terms
ricelands, who would lose the devise if he discontinued his studies for of the will.
the priesthood, or having been ordained a priest, he was
excommunicated, and who would be obligated to say annually twenty Had the testator intended that the "cualquier pariente mio varon mas
masses with prayers for the repose of the souls of the testator and his cercano que estudie la camera eclesiatica" would include indefinitely
parents. anyone of his nearest male relatives born after his death, he could
have so specified in his will He must have known that such a broad
On the other hand, it is clear that the parish priest of Victoria would provision would suspend for an unlimited period of time the
administer the ricelands only in two situations: one, during the interval efficaciousness of his bequest.
of time that no nearest male relative of the testator was studying for What then did the testator mean by "el intervalo de tiempo que no
the priesthood and two, in case the testator's nephew became a priest haya legatario acondicionado"? The reasonable view is that he was
and he was excommunicated. referring to a situation whereby his nephew living at the time of his
What is not clear is the duration of "el intervalo de tiempo que no haya death, who would like to become a priest, was still in grade school or
legatario acondicionado", or how long after the testator's death would in high school or was not yet in the seminary. In that case, the parish
it be determined that he had a nephew who would pursue an priest of Victoria would administer the ricelands before the nephew
ecclesiastical vocation. It is that patent ambiguity that has brought entered the seminary. But the moment the testator's nephew entered
about the controversy between the parish priest of Victoria and the the seminary, then he would be entitled to enjoy and administer the
testator's legal heirs. ricelands and receive the fruits thereof. In that event, the trusteeship
would be terminated.
SC held that the said bequest refers to the testator's nearest male
relative living at the time of his death and not to any indefinite time Following that interpretation of the will the inquiry would be whether
thereafter. "In order to be capacitated to inherit, the heir, devisee or at the time Father Rigor died in 1935 he had a nephew who was
legatee must be living at the moment the succession opens, except in studying for the priesthood or who had manifested his desire to follow
case of representation, when it is proper" (Art. 1025, Civil Code). the ecclesiastical career. That query is categorically answered in
paragraph 4 of appellant priest's petitions of February 19, 1954 and
The said testamentary provisions should be sensibly or reasonably January 31, 1957. He unequivocally alleged therein that "not male
construed. To construe them as referring to the testator's nearest male relative of the late (Father) Pascual Rigor has ever studied for the
relative at anytime after his death would render the provisions difficult priesthood" (pp. 25 and 35, Record on Appeal).
to apply and create uncertainty as to the disposition of his estate. That
could not have been his intention. Inasmuch as the testator was not survived by any nephew who
became a priest, the unavoidable conclusion is that the bequest in
In 1935, when the testator died, his nearest leagal heirs were his three question was ineffectual or inoperative. Therefore, the administration
sisters or second-degree relatives, Mrs. Escobar, Mrs. Manaloto and of the ricelands by the parish priest of Victoria, as envisaged in the wilt
Mrs. Quiambao. Obviously, when the testator specified his nearest was likewise inoperative.
16
Wills and Succession Case Digests
The appellant in contending that a public charitable trust was W/N Ramon is entitled to the allowance and the right to live in the
constituted by the testator in is favor assumes that he was a trustee or widow’s house.
a substitute devisee That contention is untenable. A reading of the
W/N Ramon is entitled to his claim over the estate left to Dona Luisa
testamentary provisions regarding the disputed bequest not support
by Don Nicolas.
the view that the parish priest of Victoria was a trustee or a substitute
devisee in the event that the testator was not survived by a nephew Holding:
who became a priest.
1. No. While by the eight clause the support of the plaintiff and of Don
It should be understood that the parish priest of Victoria could become Enrique Gloria is charged against the estate, yet the eleventh clause
a trustee only when the testator's nephew living at the time of his makes it plain that this unconditional right was to last only during the
death, who desired to become a priest, had not yet entered the lifetime of the widow. After her death the right to this allowance is
seminary or, having been ordained a priest, he was excommunicated. made to depend on the continuance of their studies. That this is the
Those two contingencies did not arise, and could not have arisen in correct construction of the will is made more plain by the eighteenth
this case because no nephew of the testator manifested any intention clause above quoted. In the case of their separation from their aunt by
to enter the seminary or ever became a priest. her remarriage, they were entitled to the specified allowance of 25
pesos a month only on condition that they were pursuing their studies
The Court of Appeals correctly ruled that this case is covered by article
or were in poor health. The court did not find that the plaintiff was still
888 of the old Civil Code, now article 956, which provides that if "the
pursuing his studies. On the contrary, he found that the plaintiff had
bequest for any reason should be inoperative, it shall be merged into
fulfilled the condition by obtaining the degree of Bachelor of Arts in
the estate, except in cases of substitution and those in which the right
1898. The right to live in the house of the widow terminated at her
of accretion exists"
death.
This case is also covered by article 912(2) of the old Civil Code, now
2. Yes. So far as the disposition of that part of the inheritance left in
article 960 (2), which provides that legal succession takes place when
the aunt's will to Doña Luisa for life is concerned, the question is free
the will "does not dispose of all that belongs to the testator." There
from doubt. It is distinctly declared that Ramon del Rosario and
being no substitution nor accretion as to the said ricelands the same
Enrique Gloria shall take certain parts of it after 1,000 pesos have been
should be distributed among the testator's legal heirs. The effect is as
deducted. They are pointed out by name as the legatees. It is true
if the testator had made no disposition as to the said ricelands.
that they are called the natural sons of Don Clemente. But this is
The Civil Code recognizes that a person may die partly testate and merely a further description of persons already well identified, and, if
partly intestate, or that there may be mixed succession. The old rule false, can be rejected in accordance with the provision of article 773 of
as to the indivisibility of the testator's win is no longer valid. Thus, if a the Civil Code, which by article 789 is applicable to legatees.
conditional legacy does not take effect, there will be intestate
succession as to the property recovered by the said legacy (Macrohon
Ong Ham vs. Saavedra, 51 Phil. 267). Rabadilla vs CA

Note: This is the same case under Article 776.


Del Rosario vs Del Rosario
Art. 783. A will is an act whereby a person is permitted, with the
formalities prescribed by law, to control to a certain degree the
Facts:
disposition of this estate, to take effect after his death. (667a)
1. Don Nicolas del Rosario died in this city on July 14, 1897, leaving a
FACTS:
last will. The ninth clause of the will states:
Ninth. The testator declares that the said sum of 5,000 pesos is to be In a Codicil appended to the Last Will and Testament of testatrix Aleja
divided, 3,000 pesos Ramon del Rosario and 2,000 pesos to Clemente Belleza, Dr. Jorge Rabadilla, predecessor-in-interest of Johnny S.
del Rosario, the delivery of the said sums to be effected by the wife of Rabadilla) was instituted as a devisee of a parcel of land with specific
the testator, provided that these young men behave themselves as obligation (deliver 100 piculs of sugar) which on the event of latter's
they have done up to the present time, and do not cease to study until death is to be performed by his heirs.
taking the degree of bachelor of arts, and then take a business course,
Maria Marlena Coscolluela y Belleza Villacarlos (private respondent)
if their health will permit, their support to be paid out of the
brought complaint against heir of Dr. Jorge Rabadilla to enforce
testamentary estate and they to live in the house of the widow.
provisions of codicil. It was alleged that they violated the conditions
2. Don Ramon del Rosario, one of the persons mentioned in these when the land was mortgaged to Republic Planter's bank and upon
clauses, brought this action in 1902 against Don Clemente del Rosario, failure to comply with the specific obligation.
the then executor, asking, among other things, that the said executor
Thereafter, petitioner entered into amicable settlement and MOA on
pay him an allowance from the death of the widow of the testator at
the obligation to deliver 100 piculs of sugar. However, there was no
the rate of 75 pesos a month, and that the executor allow him to live
compliance with MOA except for partial delivery.
in the house in which the widow was living at that time.
Before SC, Petitioner contends that the private respondent has only a
3. Likewise, Ramon del Rosario further claimed that he is entitled to a
right of usufruct but not the right to seize the property itself from the
certain share in the estate left to Dona Luisa, sister of Don Nicolas. In
instituted heir because the right to seize was expressly limited to
his will, Don Nicolas bequeathed to Dona Luisa the usufruct of the
violations by the buyer, lessee or mortgagee.
revenue of certain property and that upon her death, P 1,000 shall be
given to her male children while the remainder will be paid to Enrique ISSUE: WON Maria may seize the property; YES
and Ramon.
HELD: In the interpretation of Wills, when an uncertainty arises on the
4. Respondent, Clemente del Rosario argues that Ramon is not entitled face of the Will, as to the application of any of its provisions, the
to any estate because the gifts to him were conditional, that Ramon testator's intention is to be ascertained from the words of the Will,
del Rosario should be natural child of Don Nicolas, recognized by the taking into consideration the circumstances under which it was made.
latter as such based on the Civil Code However, Ramon del Rosario Such construction as will sustain and uphold the Will in all its parts
cannot prove the same. must be adopted.
Issue:

17
Wills and Succession Case Digests
Subject Codicil provides that the instituted heir is under obligation to Vda De Villaflor vs Juico
deliver One Hundred (100) piculs of sugar yearly to Marlena Belleza
Coscuella. Such obligation is imposed on the instituted heir, Dr. Jorge LEONOR VILLAFLOR VDA. DE VILLANUEVA, plaintiff-appellant,
Rabadilla, his heirs, and their buyer, lessee, or mortgagee should they vs. DELFIN N. JUICO, in his capacity as Judicial Administrator
sell, lease, mortgage or otherwise negotiate the property involved. The of the testate estate of FAUSTA NEPOMUCENO,defendant-
Codicil further provides that in the event that the obligation to deliver appellee.
the sugar is not respected, Marlena Belleza Coscuella shall seize the
property and turn it over to the testatrix's near descendants. The non- FACTS: On October 9, 1908, Don Nicolas Villaflor, a wealthy man of
performance of the said obligation is thus with the sanction of seizure Castillejos, Zambales, executed a will in Spanish in his own
of the property and reversion thereof to the testatrix's near handwriting, devising and bequeathing in favor of his wife, Dona
descendants. Since the said obligation is clearly imposed by the Fausta Nepomuceno, one-half of all his real and personal properties,
testatrix, not only on the instituted heir but also on his successors-in- giving the other half to his brother Don Fausto Villaflor.
interest, the sanction imposed by the testatrix in case of non- The 12th clause of the will provided, however, that Clauses 6th and
fulfillment of said obligation should equally apply to the instituted heir 7th thereof would be deemed annulled from the moment he bore any
and his successors-in-interest. child with Doña Fausta Nepomuceno.
ISSUE 2: WON the will may be subject to compromise agreement; NO
Don Nicolas Villaflor died on March 3, 1922, without begetting any
Similarly unsustainable is petitioner's submission that by virtue of the child with his wife Doña Fausta Nepomuceno. The latter, already a
amicable settlement, the said obligation imposed by the Codicil has widow, thereupon instituted Special Proceeding No. 203 of the Court of
been assumed by the lessee, and whatever obligation petitioner had First Instance of Zambales, for the settlement of her husband's estate
become the obligation of the lessee; that petitioner is deemed to have and in that proceeding, she was appointed judicial administratrix. In
made a substantial and constructive compliance of his obligation due course of administration, she submitted a project of partition, In
through the consummated settlement between the lessee and the the order of November 24, 1924, the probate court approved the
private respondent, and having consummated a settlement with the project of partition and declared the proceeding closed. As the project
petitioner, the recourse of the private respondent is the fulfillment of of partition now shows Doña Fausta Nepomuceno received by virtue
the obligation under the amicable settlement and not the seizure of thereof the ownership and possession of a considerable amount of real
subject property. and personal estate. By virtue also of the said project of partition, she
received the use and possession of all the real and personal properties
Suffice it to state that a Will is a personal, solemn, revocable and free
mentioned and referred to in Clause 7th of the will. The order
act by which a person disposes of his property, to take effect after his
approving the project of partition, however, expressly provided that
death. Since the Will expresses the manner in which a person intends
approval thereof was "sin perjuicio de lo dispuesto en la clausula 8.o
how his properties be disposed, the wishes and desires of the testator
del testamento de Nicolas Villaflor." .
must be strictly followed. Thus, a Will cannot be the subject of a
On May 1, 1956, Doña Fausta Nepomuceno died without having
compromise agreement which would thereby defeat the very purpose
contracted a second marriage, and without having begotten any child
of making a Will.
with the deceased Nicolas Villaflor. Her estate is now being settled in
Special Proceeding No. Q-1563 in the lower court, with the defendant
Delfin N. Juico as the duly appointed and qualified judicial
administrator.
ARTICLE 791 The plaintiff Leonor Villaflor Vda. de Villanueva is admitted to be the
same Leonor Villaflor mentioned by Don Nicolas Villaflor in his will as
Dizon Rivera vs Dizon his "sobrina nieta Leonor Villaflor".
FACTS: Agripina J. Valdez's testamentary disposition was in the nature Plaintiff Leonor Villaflor instituted the present action against the
of a partition of her estate by will. Thus, in the third paragraph of her administrator of the estate of the widow Fausta Nepomuceno, on
will, after commanding that upon her death all her obligations as well February 8, 1958, contending that upon the widow's death, said
as the expenses of her last illness and funeral and the expenses for plaintiff became vested with the ownership of the real and personal
probate of her last will and for the administration of her property in properties bequeathed by the late Nicolas Villaflor to clause 7 of his
accordance with law, be paid, she expressly provided that "it is my will, pursuant to its eight (8th) clause. Defendant's position, adopted
wish and I command that my property be divided" in accordance with by the trial court, is that the title to the properties aforesaid became
the dispositions immediately thereafter following, whereby she absolutely vested in the widow upon her death, on account of the fact
specified each real property in her estate and designated the particular that she never remarried.
heir among her seven compulsory heirs and seven other grandchildren
to whom she bequeathed the same. ISSUE: W/N the subject properties became absolutely vested in the
In her will, the testatrix "commanded that her property be divided" in widow upon her death. NO.
accordance with her testamentary disposition, whereby she devised
and bequeathed specific real properties comprising practically the RULING: We agree with appellant that the plain desire and intent of
entire bulk of her estate among her six children and eight the testator, as manifested in clause 8 of his testament, was to invest
grandchildren. his widow with only a usufruct or life tenure in the properties
described in the seventh clause, subject to the further condition
It clearly appears from the whole context of the will and the (admitted by the appellee) that if the widow remarried, her rights
disposition by the testatrix of her whole estate (save for some small would thereupon cease, even during her own lifetime. That the widow
properties of little value already noted at the beginning of this opinion) was meant to have no more than a life interest in those properties,
that her clear intention was to partition her whole estate through her even if she did not remarry at all, is evident from the expressions used
will. The repeated use of the words "I bequeath" in her testamentary by the deceased "uso y posesion mientras viva" (use and possession
dispositions acquire no legal significance, such as to convert the same while alive) in which the first half of the phrase "uso y posesion"
into devises to be taken solely from the free one-half disposable instead of "dominio" or "propiedad") reinforces the second ("mientras
portion of the estate. viva"). The testator plainly did not give his widow the full ownership of
these particular properties, but only the right to their possession and
18
Wills and Succession Case Digests
use (or enjoyment) during her lifetime. This is in contrast with the ISSUE: WON the Trial Court erred in its interpretation of the will. YES
remainder of the estate in which she was instituted universal heir
HELD:
together with the testator's brother (clause 6).
The trial court has not properly interpreted the real import of the wish
of the testatrix. Analyzing it carefully we will find that the same
The court below, in holding that the appellant Leonor Villaflor, as
contains a clear directive to employ appellant as may be seen from the
reversionary legatee, could succeed to the properties bequeathed by
words preceding the word "pahihintulutan", which say: "Dapat din
clause 7 of the testament only in the event that the widow remarried,
naman malaman ng dalawa kong tagapagmana na sila MARIA PABLO
has unwarrantedly discarded the expression "mientras viva," and
at ANGELINA GONZALES na sila ay may dapat TUNGKULIN O
considered the words "uso y posesion" as equivalent to "dominio"
GANGPANAN GAYA ng mga sumusunod." The words 'dapat
(ownership). In so doing, the trial court violated Article 791 of the Civil
TUNGKULIN O GANGPANAN" mean to do or to carry out as a mandate
Code of the Philippines.
or directive, and having reference to the word "pahihintulutan", can
convey no other meaning than to impose a duty upon appellees. To
Speculation as to the motives of the testator in imposing the conditions
follow the interpretation given by the trial court would be to devoid the
contained in clause 7 of his testament should not be allowed to
wish of the testatrix of its real and true meaning.
obscure the clear and unambiguous meaning of his plain words, which
are over the primary source in ascertaining his intent. It is well to note Article 797 of the old Civil Code, invoked by the trial court, is
that if the testator had intended to impose as sole condition the non- inapplicable. That refers to an institution of an heir intended to be
remarriage of his widow, the words "uso y posesion mientras viva" conditional by providing that a statement to the effect cannot be
would have been unnecessary, since the widow could only remarry considered as a condition unless it appears clearly that such is the
during her own lifetime. intention of the testator. We are not faced here with any conditional
institution of heirship. What we have is a clear-cut mandate which the
Technical words in a will are to be taken in their technical sense, heirs cannot fail to carry out.
unless the context clearly indicates a contrary intention, or unless it
ARTICLE 792
satisfactorily appears that the will was drawn solely by the testator,
and that he was unacquainted with such technical sense.
Balanay, Jr. vs Martinez
The Supreme Court has laid the doctrine in In re Estate of Calderon,
26 Phil., 233, that the intention and wishes of the testator, when BALANAY vs. MARTINEZ
clearly expressed in his will, constitute the fixed law of interpretation, GR No. L-39247 June 27, 1975
and all questions raised at the trial, relative to its execution and
fulfillment, must be settled in accordance therewith, following the plain ART 780. Mixed succession is that effected partly by will and
and literal meaning of the testator's words, unless it clearly appears partly by operation of law.
that his intention was otherwise.
FACTS:
As already shown, the testament of Don Nicolas Villaflor clearly and
unmistakably provided that his widow should have the possession and  Leodegaria Julian died and was survived by Felix Balanay Sr. and their
use of the legacies while alive and did not remarry. It necessarily 6 children.
follows that by the express provisions of the 8th clause of his will, the  Felix Balanay Jr, one of the 6 children, filed a petition for the probate
legacies should pass to the testator's "sobrinanieta", appellant herein, of their mother’s notarial will.
upon the widow's death, even if the widow never remarried in her  Their mother’s will declared that:
lifetime. Consequently, the widow had no right to retain or dispose of
the aforesaid properties, and her estate is accountable to the
reversionary legatee for their return, unless they had been lost due to 1. She owned the “southern half” of the conjugal lots.
fortuitous event, or for their value should rights of innocent third 2. Her paraphernal lands and all the conjugal lands be divided
parties have intervened. and distributed in the manner set forth in the will.

 Avelina Antonio and Felix Balanay Sr. opposed Balanay Jr’s petition,
Yambao vs Gonzales but an affidavit was filed where Felix Balanay Sr. withdrew his
opposition and renounced his hereditary rights over the estate of his
FACTS: wife.
Delfin Yambao brought the present action to have the Court order  Avelina contended that the affidavit of renunciation was void.
Angelina Gonzales and Maria Pablo to appoint him as tenant on the
parcels of land inherited by them from Maria Gonzales.
 A new lawyer, Atty. Montana, appeared in behalf of Felix Balanay Jr,
withdrawing the petition for probate of will and requesting for an
The basis of Yambao in the present action is the following provisions of intestate proceeding instead. Such was granted by the probate court.
Maria Gonzales’ will:  Felix Balanay Jr. with a new lawyer filed a motion for reconsideration
Dapat din naman malaman ng dalawa kong tagapagmana na sila on the ground that Atty. Montana had no authority to withdraw the
MARIA PABLO at ANGELINA GONZALES na sila ay may dapat petition.
TUNGKULIN O GANGPANAN GAYA ng mga sumusunod:  The probate court denied the motion and the will was declared void
x x x x x x x x x because of the disposition where the mother declared that she owned
(2) Pahihintulutan nila na si Delfin Yambao ang makapagtrabajo ng the “southern half” of the properties.
bukid habang panahon, at ang nasabing bukid ay isasailalim ng  The disposition was declared illegal because she cannot declare
pamamahala ng Albasea samantalang ang bukid ay nasa usapin at ownership over the undivided conjugal properties, as her right as a co-
may utang pa. owner was inchoate and pro-indiviso.
Defendants averred that the provisions of the will relied upon by  The court then ordered for intestate proceedings to commence instead
plaintiff is not mandatory; that the determination of who should be the of testate.
tenant of the land is vested in a special court.
The Court held that the defendants are not legally compelled to follow
such provisions invoking Art. 797 of the Civil Code. ISSUE:
19
Wills and Succession Case Digests
 WON mixed succession may occur in this case? YES page, nor did the attestation state these facts. The new law, therefore,
went into effect after the making of the will and before the death of
the testator, without the testator having left a will that conforms to the
new requirements.
HELD:
Issue: The issue which this appeal presents is whether in the
Philippine Islands the law existing on the date of the execution of a
 For mixed succession to occur, the invalid disposition must be
will, or the law existing at the death of the testator, controls.
separable from the valid dispositions. The invalid disposition must not
be a condition to the valid disposition. Ruling:
 The probate court acted correctly in passing upon the intrinsic validity The rule prevailing in many other jurisdictions is that the validity of the
of the will before establishing its formal validity. execution of a will must be tested by the statutes in force at the time
 Where practical considerations demand that the intrinsic validity of the of its execution and that statutes subsequently enacted have no
will be passed upon, even before it is probated, the court should meet retrospective effect.
the issues. We cannot lose sight of the fact that the testator has provided in detail
for the disposition of his property and that his desires should be
respected by the courts. Justice is a powerful pleader for the second
and third rules on the subject.
In reality, the will becomes a completed act when the will is executed
 But the probate court erred in declaring that the will was void and in and attested according to the law, although it does not take effect on
converting the testate proceeding into an intestate proceeding. the property until a future time.
 The rule is that the invalidity of one of several dispositions contained in The language of Act No. 2645 gives no indication of retrospective
a will does not result in the invalidity of the other disposition, unless it effect. The will in question is admittedly not executed and attested as
is presumed that the testator would not have made such other provided by the Code of Civil Procedure as amended. Nevertheless, it
dispositions if the first invalid disposition had not been made. is proper to observe that the general principle in the law of wills inserts
 Hence, if there are certain dispositions in a will that are not valid, it will itself even within the provisions of said section 634. Our statute
not render the whole will invalid. The will remains valid, and the valid announces a positive rule for the transference of property which must
dispositions should be followed. be complied with as completed act at the time of the execution, so far
as the act of the testator is concerned, as to all testaments made
subsequent to the enactment of Act No. 2645, but is not effective as to
testaments made antecedent to that date.
Therefore, the will of Jose Riosa is valid.
 The rule is testacy is favored over intestacy. The policy of the State is
to give effect to the wishes of the testator as much as possible.
 The illegal disposition of Leodegaria declaring that she owned the
“southern half” of the properties can be rendered invalid, but the Enriquez vs Abadia
entire will is not nullified.
 Where some of the provisions of a will are valid and others invalid, the In re: Will and Testament of the deceased REVEREND SANCHO
valid parts will be upheld if they can be separated from the invalid ABADIA. SEVERINA A. VDA. DE ENRIQUEZ, ET AL., petitioners-
without defeating the intention of the testator or interfering with the appellees, vs. MIGUEL ABADIA, ET AL., oppositors-appellants.
general testamentary scheme, or doing injustice to the beneficiaries. G.R. No. L-7188 August 9, 1954
 The statement of the testatrix that she owned the "southern half of
the conjugal lands is contrary to law because, although she was a co-
owner thereof, her share was inchoate and pro-indiviso. But That FACTS: On September 6, 1923, Fr. Sancho Abadia executed a
illegal declaration does not nullify the entire will. It may be document purporting to be his Last Will and Testament. He died
disregarded. subsequently on January 14, 1943. He left properties estimated at
 Hence, testacy should be favored over intestacy. The valid dispositions P8,000 in value.
of Leodegaria in her will should be followed, while the invalid ones On October 2, 1946, Andres Enriquez, one of the legatees
shall be effected by operation of law. (mixed succession) in said will filed a petition for its probate, in the same proceedings; no
opposition was filed by the other heirs. The trial court found and
declared that said will is a holographic will; that it was in the
handwriting of the testator and that although at the time it was
executed and at the time of the testator’s death, holographic wills
were not permitted by law. Still the court upheld its validity reasoning
ARTICLE 795 that at the time of the hearing and when the case was decided, the
New Civil Code was already in force, and such code permitted the
execution of holographic wills. The TC’s ruling is in line with the liberal
In Re Will of Riosa
view and in order to carry out the intention of the testator which
according to the TC is the controlling factor and may override any
Facts:
defect in form.
Jose Riosa died on 1917. He left a will made on 1908, in which he
disposed of an estate. The will was duly executed in accordance with
the law then in force, namely, section 618 of the Code of Civil ISSUE: WON the provisions of the new Civil Code allowing
Procedure . The will was not executed in accordance with Act No. holographic wills may be applied in order to validate Fr. Abadia’s will?
2645, amendatory of said section 618, prescribing certain additional
formalities for the signing and attestation of wills, in force on and after
July 1, 1916. In other words, the will was in writing, signed by the HELD: NO.
testator, and attested and subscribed by three credible witnesses in
the presence of the testator and of each other; but was not signed by
the testator and the witnesses on the left margin of each and every
20
Wills and Succession Case Digests
Article 795 of this same new Civil Code expressly provides:
"The validity of a will as to its form depends upon the observance of HELD:
the law in force at the time it is made."
The above provision is but an expression or  NO, the sale was void as it deprived the children of their right to the
statement of the weight of authority to the affect that the inheritance, which was transmitted upon the death of Winstanley.
validity of a will is to be judged not by the law enforce at the  When Catalina Navarro Vda. de Winstanley sold the entire parcel to
time of the testator's death or at the time the supposed will is the Canoy spouses, one-half of it already belonged to the seller's
presented in court for probate or when the petition is decided children.
by the court but at the time the instrument was executed. One  No formal or judicial declaration being needed to confirm the children's
reason in support of the rule is that although the will operates upon title, it follows that the first sale was null and void in so far as it
and after the death of the testator, the wishes of the testator about included the children's share.
the disposition of his estate among his heirs and among the legatees is
given solemn expression at the time the will is executed, and in reality,
 It is immaterial whether a short or long period of time lapses between
the death of the predecessor and the entry into possession of the
the legacy or bequest then becomes a completed act. (In re Will of
property of the inheritance because the right is always deemed to be
Riosa, 39 Phil., 23.)
retroactive from the moment of death.
Of course, there is the view that the intention of the
testator should be the ruling and controlling factor and that all
adequate remedies and interpretations should be resorted to in order
to carry out said intention, and that when statutes passed after the
execution of the will and after the death of the testator lessen the  Article 657 of the old Civil Code provides that the rights to the
formalities required by law for the execution of wills, said subsequent succession of a person are transmitted from the moment of his death.
statutes should be applied so as to validate wills defectively executed in a slightly different language, this article is incorporated in the new
according to the law in force at the time of execution. Civil Code as article 777.
However, we should not forget that from the day of the  The moment of death is the determining factor when the heirs acquire
death of the testator, if he leaves a will, the title of the a definite right to the inheritance, whether such right is pure or
legatees and devisees under it becomes a vested right, contingent.
protected under the due process clause of the constitution  On the other hand, the sale to Po having been made by authority of
against a subsequent change in the statute adding new legal the competent court was undeniably legal and effective. The fact that
requirements of execution of wills which would invalidate it has not been recorded is of no consequence. If registration were
such a will. necessary, still the non-registration would not avail in favor of Ibarle.
By parity of reasoning, when one executes a will which is
invalid for failure to observe and follow the legal requirements at the
time of its execution then upon his death he should be regarded and
declared as having died intestate, and his heirs will then inherit by Testate Estate of the Late Alipio Abada vs Abaja
intestate succession, and no subsequent law with more liberal
requirements or which dispenses with such requirements as to In re: Will and Testament of the deceased REVEREND SANCHO
execution should be allowed to validate a defective will and thereby ABADIA. SEVERINA A. VDA. DE ENRIQUEZ, ET AL., petitioners-
divest the heirs of their vested rights in the estate by intestate appellees, vs. MIGUEL ABADIA, ET AL., oppositors-appellants.
succession. The general rule is that the Legislature cannot G.R. No. L-7188 August 9, 1954
validate void wills. (57 Am. Jur., Wills, Sec. 231, pp. 192-193).
FACTS: On September 6, 1923, Fr. Sancho Abadia executed a
document purporting to be his Last Will and Testament. He died
Ibarle vs Po subsequently on January 14, 1943. He left properties estimated at
P8,000 in value.
BIENVENIDO IBARLE vs. ESPERANZA PO On October 2, 1946, Andres Enriquez, one of the legatees
GR No. L-5064 February 27, 1953 in said will filed a petition for its probate, in the same proceedings; no
opposition was filed by the other heirs. The trial court found and
FACTS: declared that said will is a holographic will; that it was in the
handwriting of the testator and that although at the time it was
executed and at the time of the testator’s death, holographic wills
 Winstanley and Navarro were husband and wife. Winstanley died, were not permitted by law. Still the court upheld its validity reasoning
leaving Navarro and their minor children as heirs. that at the time of the hearing and when the case was decided, the
 Winstanley left a parcel of land in Cebu, which was conjugal property. New Civil Code was already in force, and such code permitted the
 Subsequently, Navarro sold the land to spouses Canoy. Canoy sold the execution of holographic wills. The TC’s ruling is in line with the liberal
land to Ibarle. view and in order to carry out the intention of the testator which
 The two deeds of the two sales above were not registered. according to the TC is the controlling factor and may override any
 Navarro, after being appointed guardian of her minor children, sold defect in form.
one-half of the subject land to Po.
 The children alleged that they are the rightful owners of the property ISSUE: WON the provisions of the new Civil Code allowing
and filed an action to annul the sale. holographic wills may be applied in order to validate Fr. Abadia’s will?

HELD: NO.
Article 795 of this same new Civil Code expressly provides:
ISSUE: "The validity of a will as to its form depends upon the observance of
the law in force at the time it is made."
 WON the sale of the property to Po was valid? NO. The above provision is but an expression or
statement of the weight of authority to the affect that the
validity of a will is to be judged not by the law enforce at the
21
Wills and Succession Case Digests
time of the testator's death or at the time the supposed will is 1.) WON the provision in the will of an alien which provides that his
presented in court for probate or when the petition is decided estate be disposed in accordance with Philippine law may be given
by the court but at the time the instrument was executed. One effect. NO.
reason in support of the rule is that although the will operates upon
and after the death of the testator, the wishes of the testator about 2.) WON the failure of the legatee to comply with the provisions of the
the disposition of his estate among his heirs and among the legatees is will prevented him from receiving his legacy. NO.
given solemn expression at the time the will is executed, and in reality,
the legacy or bequest then becomes a completed act. (In re Will of HELD:
Riosa, 39 Phil., 23.)
Of course, there is the view that the intention of the 1.) A provision of foreigner’s will to the effect that his properties shall
testator should be the ruling and controlling factor and that all be distributed in accordance with Philippine law and not with the
adequate remedies and interpretations should be resorted to in order national law, is illegal and void, for his national law cannot be ignored.
to carry out said intention, and that when statutes passed after the
execution of the will and after the death of the testator lessen the 2.) The institution of legatees in this will is conditional, and the
formalities required by law for the execution of wills, said subsequent condition is that the instituted legatees must respect the testator's will
statutes should be applied so as to validate wills defectively executed to distribute his property, not in accordance with the laws of his
according to the law in force at the time of execution. nationality, but in accordance with the laws of the Philippines.
However, we should not forget that from the day of the If this condition as it is expressed were legal and valid, any legatee
death of the testator, if he leaves a will, the title of the who fails to comply with it, as the herein oppositor who, by his attitude
legatees and devisees under it becomes a vested right, in these proceedings has not respected the will of the testator, as
protected under the due process clause of the constitution expressed, is prevented from receiving his legacy.
against a subsequent change in the statute adding new legal
requirements of execution of wills which would invalidate The fact is, however, that the said condition is void, being contrary to
such a will. law, for article 792 of the civil Code provides the following:
By parity of reasoning, when one executes a will which is Impossible conditions and those contrary to law or good morals shall
invalid for failure to observe and follow the legal requirements at the be considered as not imposed and shall not prejudice the heir or
time of its execution then upon his death he should be regarded and legatee in any manner whatsoever, even should the testator otherwise
declared as having died intestate, and his heirs will then inherit by provide.
intestate succession, and no subsequent law with more liberal
requirements or which dispenses with such requirements as to And said condition is contrary to law because it expressly
execution should be allowed to validate a defective will and thereby ignores the testator's national law when, according to article
divest the heirs of their vested rights in the estate by intestate 10 of the civil Code above quoted, such national law of the
succession.The general rule is that the Legislature cannot testator is the one to govern his testamentary dispositions.
validate void wills. (57 Am. Jur., Wills, Sec. 231, pp. 192-193).
Said condition then, in the light of the legal provisions above cited, is
considered unwritten, and the institution of legatees in said will is
unconditional and consequently valid and effective even as to the
herein oppositor.
ARTICLE 16

Miciano vs Brimo Bellis vs Bellis

Testate Estate of Joseph G. Brimo, JUAN MICIANO, FACTS


administrator, petitioner-appellee, vs. ANDRE BRIMO, opponent- Mr. Bellis was a citizen and resident of Texas at the time of his death.
appellant. He had five (5) legitimate children with his first wife, Mary Mallen,
whom he divorced. He had three (3) legitimate daughters with his
FACTS: second wife, Violet, who survived him, and another three (3)
illegitimate children with another woman. Before he died, he executed
The judicial administrator of the estate of Joseph Brimo (Turkish two (2) wills, disposing of his Texas properties, the other disposing his
national) filed a scheme of partition. The testator provided in his will Philippine properties. In both wills, he recognized his illegitimate
that – children but they were not given anything. Under Texas law, there are
no compulsory heirs or legitime reserved to illegitimate children.
xx“it is my wish that the distribution of my property and everything in Naturally, the illegitimate children, Maria Cristina and Merriam Palma,
connection with this, my will, be made and disposed of in accordance opposed the wills on the ground that they were deprived of their
with the laws in force in the Philippine islands, requesting all of my legitime as illegitimate children. Under Philippine law, they are entitled
relatives to respect this wish, otherwise, I annul and cancel to inherit even if they are illegitimate children. They claim that
beforehand whatever disposition found in this will favorable to the Philippine law should be applied.
person or persons who fail to comply with this request.”
ISSUE
What law should be applied, the Philippine law or the Texas law? May
Andre Brimo, one of the brothers of the deceased, opposed the
the illegitimate daughters inherit?
approval of the said scheme of partition on the ground that the
partition in question puts into effect the provisions of Joseph G. HELD
Brimo's will which are not in accordance with the laws of his Turkish What applies is the Texas law. Mr. Bellis is a national and domicile of
nationality, for which reason they are void as being in violation or Texas at the time of his death. Hence, both the intrinsic validity of the
article 10 of the Civil Code (Now Art. 16 of NCC). will (substance or successional rights) and the extrinsic validity (forms
of the will) are governed by Texas law. Since under Texas law, the
ISSUES: decedent may dispose of his property as he wishes, the Will should be
respected. The illegitimate daughters are not entitled to any legitime.

22
Wills and Succession Case Digests
Assuming that Texas law is in conflict of law rule providing that the he executed an Affidavit of Adjudication whereby he adjudicated unto
domiciliary system (law of domicile) should govern, the same should himself the ownership of the entire estate of the deceased Adoracion.
not result in a reference back (renvoi) to the Philippine law since Mr.
Nenita C. Paguia filed a petition for the reprobate of a will of the
Bellis was both a national and domicile of Texas at the time of his
deceased, Adoracion Campos, which was allegedly executed in the
death. Nonetheless, if Texas law has a conflict rule, renvoi would not
United States and for her appointment as administratrix of the estate
arise, since the properties covered by the second will are found in the
of the deceased testatrix. She alleges among others that the testatrix
Philippines. The renvoi doctrine applied in the case of Aznar v. Garcia
was a perminent resident of Pennsylvania, USA and was only
cannot be applied since said doctrine is pertinent where the decedent
temporarily residing with her sister in Manila when she died; that
is a national of one country and domiciliary of another country.
during her lifetime, the testatrix made her last will and testament
Moreover, it has been pointed out that the decedent executed two (2)
according to the laws of Pennsylvania, U.S.A., nominating Wilfredo
wills- one to govern his Texas properties and the other his Philippine
Barzaga of New Jersey as executor; that after the testatrix death, her
estate; the latter being the basis of the argument of illegitimate
last will and testament was presented, probated, allowed, and
children that he intended Philippine law to govern. Assuming that such
registered with the Registry of Wins at the County of Philadelphia,
was the intention of the decedent in executing a separate Philippine
U.S.A., that Clement L. McLaughlin, the administrator who was
will, it would not alter the law. As rule in Miciano v. Brimo, a provision
appointed after Dr. Barzaga had declined and waived his appointment
of foreigner’s will to the effect that his properties shall be distributed in
as executor in favor of the former, is also a resident of Philadelphia,
accordance with Philippine law and not with the national law, is illegal
U.S.A., and that therefore, there is an urgent need for the
and void, for his national law cannot be ignored.
appointment of an administratrix to administer and eventually
distribute the properties of the estate located in the Philippines.
The reprobate was opposed by Polly Cayetano alleging among other
Testate Estate of Christensen vs Garcia
things, that the will in question is a forgery; that the intrinsic
provisions of the will are null and void; and that even if pertinent
FACTS:
American laws on intrinsic provisions are invoked, the same could not
Edward E. Christensen, though born in New York, migrated to
apply inasmuch as they would work injustice and injury to him.
California, where he resided and consequently was considered a
California citizen. In 1913, he came to the Philippines where he Respondent judge issued an order stating that the Last Will and
became a domiciliary until his death. However, during the entire period Testament of the late Adoracion C. Campos is hereby admitted to and
of his residence in this country he had always considered himself a allowed probate in the Philippines, and Nenita Campos Paguia is
citizen of California. In his will executed on March 5, 1951, he hereby appointed Administratrix of the estate of said decedent.
instituted an acknowledged natural daughter, Maria Lucy Christensen
as his only heir, but left a legacy of sum of money in favor of Helen
Christensen Garcia who was rendered to have been declared ISSUE: WON the respondent judge erred in allowing the reprobate of
acknowledged natural daughter. Counsel for appellant claims that Adoracion's will, divesting Hermogenes of own his legitime which was
California law should be applied; that under California law, the matter reserved by the law for him.
is referred back to the law of the domicile; that therefore Philippine
law is ultimately applicable; that finally, the share of Helen must be
increased in view of the success ional rights of illegitimate children HELD: NO. Although on its face, the will appeared to have preterited
under Philippine law. On the other hand, counsel for the heir of the petitioner and thus, the respondent judge should have denied its
Christensen contends that inasmuch as it is clear that under Article 16 reprobate outright, the private respondents have sufficiently
of our Civil Code, the national law of the deceased must apply, our established that Adoracion was, at the time of her death, an American
courts must immediately apply the internal law of California on the citizen and a permanent resident of Philadelphia, Pennsylvania, U.S.A.
matter; that under California law there are no compulsory heirs and Therefore, under Article 16 par. (2) and 1039 of the Civil Code which
consequently a testator could dispose of any property possessed by respectively provide:
him in absolute dominion and that finally, illegitimate children not
Art. 16 par. (2).
being entitled to anything and his will remain undisturbed.
xxx xxx xxx
ISSUE:
Whether or not the Philippine law should prevail in administering the However, intestate and testamentary successions, both with respect to
estate of Christensen? the order of succession and to the amount of successional rights and
to the intrinsic validity of testamentary provisions, shall be regulated
RULING:
by the national law of the person whose succession is under
The court in deciding to grant more successional rights to Helen said in
consideration, whatever may be the nature of the property and
effect that there are two rules in California on the matter: the internal
regardless of the country wherein said property may be found.
law which should apply to Californians domiciled in California; and the
conflict rule which should apply to Californians domiciled outside of Art. 1039.
California. The California conflict rule says: “If there is no law to the
contrary in the place where personal property is situated, is deemed to Capacity to succeed is governed by the law of the nation of the
decedent.
follow the person of its owner and is governed by the law of his
domicile.” Christensen being domiciled outside California, the law of his the law which governs Adoracion Campo's will is the law of
domicile, the Philippines, ought to be followed. Where it is referred Pennsylvania, U.S.A., which is the national law of the decedent.
back to California, it will form a circular pattern referring to both Although the parties admit that the Pennsylvania law does not provide
country back and forth. for legitimes and that all the estate may be given away by the testatrix
to a complete stranger, the petitioner argues that such law should not
apply because it would be contrary to the sound and established public
policy and would run counter to the specific provisions of Philippine
Cayetano vs Leonidas
Law.
FACTS: Adoracion Campos died, leaving her father, petitioner It is a settled rule that as regards the intrinsic validity of the provisions
Hermogenes Campos and her sisters (private respondents) as of the will, as provided for by Article 16(2) and 1039 of the Civil Code,
surviving heirs. As Hermogenes Campos was the only compulsory heir, the national law of the decedent must apply.
23
Wills and Succession Case Digests
conjugal estate constituted the estate of Linnie Jane Hodges. This is
the only portion of the conjugal estate capable of inheritance by her
PCIB vs Escolin heirs.

G.R. Nos. L-27860 and L-27896 March 29, 1974


Avelina Magno filed her own "Motion for the Official Declaration of
PHILIPPINE COMMERCIAL AND INDUSTRIAL BANK, Heirs of the Estate of Linnie Jane Hodges" stating that the applicable
Administrator of the Testate Estate of Charles Newton law to the will of Mrs. Hodges is that of Texas, under which, she
Hodges, petitioner, vs. THE HONORABLE VENICIO ESCOLIN and alleges, there is no system of legitime, hence, she prayed that:
AVELINA A. MAGNO, respondents.
BARREDO, J.:p
That of all the assets of the combined conjugal estate of Linnie Jane
Facts: On May 23, 1957, Linnie Jane Hodges died in Iloilo City leaving Hodges and Charles Newton Hodges as they exist today, the estate of
a will executed on November 22, 1952 bequeathing everything to her Linnie Jane Hodges is clearly entitled to a portion more than fifty
husband, Charles Newton Hodges. In the will of Mrs Hodges it was percent (50%) as compared to the portion to which the estate of
provided that: Charles Newton Hodges may be entitled.
I give, devise and bequeath all of the rest, residue and remainder of Issues:
my estate to my husband Charles Newton Hodges; that he shall have
the right to manage, control, use and enjoy said estate during his
lifetime; that at the death of my said husband, Charles Newton 1. What law shall govern the distribution of Mrs. Hodges’
Hodges, I give, devise and bequeath all of the rest, residue and estate?
remainder of my estate, to be equally divided among my brothers and 2. How do you prove the laws of foreign countries?
sisters, share and share alike; that I appoint my said husband, Charles
Newton Hodges, to be executor of this, my last will and testament. Held:
When Mr. Hodges died, Philippine Commercial and Industrial Bank 1) Philippine Law. Since there is no reliable evidence as to what are
(PCIB) became the administrator of the estate of C. N. Hodges. PCIB the applicable laws of Texas, U.S.A. "with respect to the order of
respectfully states that: succession and to the amount of successional rights" that may be
willed by a testator which, under Article 16 of the Civil Code, are
controlling in the instant cases, in view of the undisputed Texan
The Spouses are American citizens originally from State of Texas USA
nationality of the deceased Mrs. Hodges, these cases should be
and acquired assets which constitutes their conjugal estate; that
returned to the court a quo, so that the parties may prove what said
Although Texas was the domicile of origin of the Hodges spouses, this
law provides, it is premature for Us to make any specific ruling now on
Honorable Court, conclusively found and categorically ruled that said
either the validity of the testamentary dispositions herein involved or
spouses had lived and worked for more than 50 years in Iloilo City and
the amount of inheritance to which the brothers and sisters of Mrs.
had, therefore, acquired a domicile of choice in said city, which they
Hodges are entitled. But the law of Texas, in its conflicts of law rules,
retained until the time of their respective deaths; that Linnie executed
provides that the domiciliary law governs the testamentary dispositions
her Last Will and Testament; that The Will of Linnie Jane Hodges, with
and successional rights over movables or personal property, while the
respect to the order of succession, the amount of successional rights,
law of the situs governs with respect to immovable property. Such that
and the intrinsic of its testamentary provisions, should be governed by
with respect to both movable property, as well as immovable property
Philippine laws because:
situated in the Philippines, the law of Texas points to the law of the
Philippines. Applying, therefore, the so-called "renvoi doctrine", as
(a) The testatrix, Linnie Jane Hodges, intended Philippine laws to enunciated and applied by this Honorable Court in the case of "In re
govern her Will; Christensen" (G.R. No. L-16749, Jan. 31, 1963), there can be no
question that Philippine law governs the testamentary provisions in the
Last Will and Testament of the deceased Linnie Jane Hodges, as well
(b) Article 16 of the Civil Code provides that "the national law of the as the successional rights to her estate, both with respect to movables,
person whose succession is under consideration, whatever may be the as well as immovables situated in the Philippines.
nature of the property and regardless of the country wherein said
property may be found", shall prevail. However, the Conflict of Law of
Texas, which is the "national law" of the testatrix, Linnie Jane Hodges, 2) The question of what are the laws of Texas governing the matters
provide that the domiciliary law (Philippine law) should govern the herein issue is, in the first instance, one of fact, not of law. Elementary
testamentary dispositions and successional rights over movables is the rule that foreign laws may not be taken judicial notice of and
(personal properties), and the law of the situs of the property (also have to be proven like any other fact in dispute between the parties in
Philippine law as to properties located in the Philippines) with regards any proceeding, with the rare exception in instances when the said
immovable (real properties). Thus applying the "Renvoi Doctrine, laws are already within the actual knowledge of the court, such as
Philippine law should apply to the Will of Linnie Jane Hodges and to when they are well and generally known or they have been actually
the successional rights to her estate insofar as ruled upon in other cases before it and none of the parties concerned
her movable andimmovable assets in the Philippines are concerned. do not claim otherwise.

xxx If one alleged that a certain provision in the national law of the
decedent, then he must prove that law as a fact like you prove any
other fact in dispute. The exceptions are:
8. Under Philippine and Texas law, the conjugal or community estate
of spouses shall, upon dissolution, be divided equally between them.
1. If the foreign laws are within the actual knowledge of the
Thus, upon the death of Linnie Jane Hodges on May 23, 1957, one-half
court.
(1/2) of the entirety of the assets of the Hodges spouses constituting
2. When the court has considered before these laws in a
their conjugal estate pertained automatically to Charles Newton
previous case and the parties do not oppose as to the
Hodges, not by way of inheritance, but in his own right as partner in
the conjugal partnership. The other one-half (1/2) portion of the
24
Wills and Succession Case Digests
consideration of the court as to the existence of the foreign Upon the liberation of the Philippines by the American Forces in 1945,
law. Lorenzo was granted an accrued leave by the U. S. Navy, to visit his
wife and he visited the Philippines. He discovered that his wife Paula
was pregnant and was “living in” and having an adulterous relationship
with his brother, Ceferino Llorente.
Malang vs Moson
On December 4, 1945, Paula gave birth to a boy registered in the
Office of the Registrar of Nabua as “Crisologo Llorente,” with the
FACTS: Abdula contracted marriage with Aida and had 3
certificate stating that the child was not legitimate and the line for the
sons with her. Adbula then married for a second time with
father’s name was left blank.
Jubaida and no child was born out of that marriage.
Abdula divorced Aida. Abdula then married Nayo and they
Lorenzo refused to forgive Paula and live with her.
also had no child. Thereafter, he contracted another
marriage with Mabay and had a daughter with her. Not long
On February 2, 1946, the couple drew a written agreement to the
after, Abdula married 3 other Muslim women but eventually
effect that (1) all the family allowances allotted by the United States
divorced them. Abdula then married his 4th wife Neng,
Navy as part of Lorenzo’s salary and all other obligations for Paula’s
excluding the wives he divorced. They were childless.
daily maintenance and support would be suspended; (2) they would
Abdula died without leaving a will.
dissolve their marital union in accordance with judicial proceedings; (3)
they would make a separate agreement regarding their conjugal
property acquired during their marital life; and (4) Lorenzo would not
HELD: Abdula died intestate on December 1993. It is the
prosecute Paula for her adulterous act since she voluntarily admitted
Muslim Code which should determine the identification
her fault and agreed to separate from Lorenzo peacefully. The
of the heirs in the order of intestate succession and the
agreement was signed by both Lorenzo and Paula and was witnessed
respective shares of the heirs. The Muslim Code took
by Paula’s father and stepmother. The agreement was notarized by
effect on February 4, 1977. If a Muslim died before the
Notary Public Pedro Osabel
effectivity of the Muslim Code, the order of succession shall
be governed by the Civil Code.
Lorenzo returned to the United States and on November 16, 1951 filed
The status and capacity to succeed on the part of
for divorce with the Superior Court of the State of California in and
the individual parties who entered into each and every
for the County of San Diego. After due proceedings, the Court issued
marriage ceremony will depend upon the law in force at
an interlocutory judgment of divorce. On December 4, 1952, the
the time of the performance of the marriage rite. If the
divorce decree became final.
Muslim marriage took place during the effectivity of the Civil
Code and before the effectivity of the Muslim Code, he
Subsequently, Lorenzo returned to the Philippines and married Alicia F.
cannot marry again because under the Civil Code, only one
Llorente in Manila.[13] Apparently, Alicia had no knowledge of the first
marriage is valid. But when the marriage took place when
marriage even if they resided in the same town as Paula, who did not
the Muslim Code has taken effect, subsequent marriages are
oppose the marriage or cohabitation
allowed and valid. The right of the spouses to inherit will
depend on whether or not they have been validly married. If
From 1958 to 1985, Lorenzo and Alicia lived together as husband and
they are not validly married, then they do not have
wife. Their twenty-five (25) year union produced three children, Raul,
successional rights over their partner.
Luz and Beverly, all surnamed Llorente.
The status and capacity to succeed of the children
will depend upon the law in force at the time of
On March 13, 1981, Lorenzo executed a Last Will and Testament.
conception or birth of the child.
[read full text for specific contents; in summary, all properties were
As to property relations, it is the Civil Code that
bequeathed to Alicia and their children with Lorenzo, also making
determines and governs the property relations of the
Alicia the sole executor of the said will]
marriages in this case, for the reason that at the time of the
celebration of the marriages in question, the Civil Code was
On December 14, 1983, Lorenzo filed with the Regional Trial Court,
the only on marriage relations, including property relations
Iriga, Camarines Sur, a petition for the probate and allowance of his
between spouses, whether Muslim or non-Muslim.
last will and testament. On January 24, 1984, finding that the will was
duly executed, the trial court admitted the will to probate.[20]
Llorente vs CA
On June 11, 1985, before the proceedings could be terminated,
PAULA T. LLORENTE, petitioner, vs. COURT OF APPEALS and ALICIA F. Lorenzo died.
LLORENTE, respondents.
On September 4, 1985, Paula filed with the same court a petition.
Deceased Lorenzo N. Llorente was an enlisted serviceman of the Paula contended (1) that she was Lorenzo’s surviving spouse, (2) that
United States Navy from March 10, 1927 to September 30, 1957 the various property were acquired during their marriage, (3) that
Lorenzo’s will disposed of all his property in favor of Alicia and her
On February 22, 1937, Lorenzo and petitioner Paula Llorente were children, encroaching on her legitime and 1/2 share in the conjugal
married in Nabua, Camarines Sur. property
Before the outbreak of the Pacific War, Lorenzo departed for the RTC: the divorce decree granted to the late Lorenzo Llorente is void
United States and Paula stayed in the conjugal home in barrio and inapplicable in the Philippines, therefore the marriage he
Antipolo, Nabua, Camarines Sur. contracted with Alicia Fortunato on January 16, 1958 at Manila is
likewise void. ... Alicia is not entitled to receive any share from the
On November 30, 1943, Lorenzo was admitted to United States estate even if the will especially said so her relationship with Lorenzo
citizenship and Certificate of Naturalization No. 5579816 was issued in having gained the status of paramour which is under Art. 739 (1)
his favor by the United States District Court, Southern District of New
York.

25
Wills and Succession Case Digests
the court finds the petition of Paula Titular Llorente, meritorious, and Each State of the union has its own law applicable to its citizens and in
so declares the intrinsic disposition of the will of Lorenzo Llorente force only within the State. It can therefore refer to no other than the
dated March 13, 1981 as void and declares her entitled as conjugal law of the State of which the decedent was a resident.[39] Second,
partner and entitled to one-half of their conjugal properties, and as there is no showing that the application of the renvoi doctrine is called
primary compulsory heir, Paula T. Llorente is also entitled to one-third for or required by New York State law.
of the estate and then one-third should go to the illegitimate children,
Raul, Luz and Beverly The trial court held that the will was intrinsically invalid since it
contained dispositions in favor of Alice, who in the trial court’s
After the denial of Alicia's MR, the RTC modified its earlier decision, opinion was a mere paramour. The trial court threw the will out,
stating that Raul and Luz Llorente are not children “legitimate or leaving Alice, and her two children, Raul and Luz, with nothing.
otherwise” of Lorenzo since they were not legally adopted by him.[29]
Amending its decision of May 18, 1987, the trial court declared Beverly The Court of Appeals also disregarded the will. It declared Alice
Llorente as the only illegitimate child of Lorenzo, entitling her to one- entitled to one half (1/2) of whatever property she and Lorenzo
third (1/3) of the estate and one-third (1/3) of the free portion of the acquired during their cohabitation, applying Article 144 of the Civil
estate. Code of the Philippines.
The hasty application of Philippine law and the complete disregard of
CA affirmed RTC decision with a modification that Alicia is declared as the will, already probated as duly executed in accordance with the
co-owner of whatever properties she and the deceased may have formalities of Philippine law, is fatal, especially in light of the factual
acquired during the twenty-five (25) years of cohabitation and legal circumstances here obtaining.

ISSUE: WON the divorce decree was invalid. For failing to apply these doctrines, the decision of the Court of
Appeals must be reversed:
Held: No.

The fact that the late Lorenzo N. Llorente became an American citizen
 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
long before and at the time of: (1) his divorce from Paula; (2)
nationals are covered by the policy against absolute divorces, the same
marriage to Alicia; (3) execution of his will; and (4) death, is duly
being considered contrary to our concept of public policy and morality.
established, admitted and undisputed.
In the same case, the Court ruled that aliens may obtain divorces
abroad, provided they are valid according to their national law.
Thus, as a rule, issues arising from these incidents are necessarily
governed by foreign law.  Citing this landmark case, the Court held in Quita v. Court of
Appeals,[41] that once proven that respondent was no longer a Filipino
The Civil Code clearly provides: citizen when he obtained the divorce from petitioner, the ruling in Van
“Art. 15. Laws relating to family rights and duties, or to the status, Dorn would become applicable and petitioner could “very well lose her
condition and legal capacity of persons are binding upon citizens of right to inherit” from him.
the Philippines, even though living abroad.  In Pilapil v. Ibay-Somera,[42] we recognized the divorce obtained by
the respondent in his country, the Federal Republic of Germany.
“Art. 16. Real property as well as personal property is subject to the There, we stated that divorce and its legal effects may be recognized
law of the country where it is situated. in the Philippines insofar as respondent is concerned in view of the
nationality principle in our civil law on the status of persons.
“However, intestate and testamentary succession, both with
respect to the order of succession and to the amount of
successional rights and to the intrinsic validity of We hold that the divorce obtained by Lorenzo H. Llorente from his first
testamentary provisions, shall be regulated by the national wife Paula was valid and recognized in this jurisdiction as a
law of the personwhose succession is under consideration, whatever matter of comity. Now, the effects of this divorce (as to the
may be the nature of the property and regardless of the country succession to the estate of the decedent) are matters best left
wherein said property may be found.” (emphasis ours) to the determination of the trial court.

Note: foreign laws do not prove themselves in our jurisdiction and our The clear intent of Lorenzo to bequeath his property to his second wife
courts are not authorized to take judicial notice of them. Like any and children by her is glaringly shown in the will he executed. We do
other fact, they must be alleged and proved 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
While the substance of the foreign law was pleaded, the Court capacity.”
of Appeals did not admit the foreign law. The Court of Appeals and
the trial court called to the fore the renvoi doctrine, where the case Whether the will is intrinsically valid and who shall inherit from Lorenzo
was “referred back” to the law of the decedent’s domicile, in this case, are issues best proved by foreign law which must be pleaded and
Philippine law proved. Whether the will was executed in accordance with the
formalities required is answered by referring to Philippine law. In fact,
While the trial court stated that the law of New York was not the will was duly probated.
sufficiently proven, in the same breath it made the categorical, albeit
equally unproven statement that “American law follows the ‘domiciliary This case was remanded to the trial court.
theory’ hence, Philippine law applies when determining the validity of
Lorenzo’s will
Testate Estate of Suntay
First, there is no such thing as one American law.
FACTS:
The "national law" indicated in Article 16 of the Civil Code cannot On May 14, 1934, Jose Suntay, a Filipino citizen and resident of the
possibly apply to general American law. There is no such law Philippines, died in Amoy, China, leaving real and personal properties
governing the validity of testamentary provisions in the United States. in the Philippines and a house in China. On Oct 15, 1934, the surviving
26
Wills and Succession Case Digests
widow filed a petition in CFI of Bulacan for the probate of a last will The Case
and testament claimed to have been executed and signed on the
Philippines on Nov 1929 by the late Jose Suntay. The petition was
Before the Court is a petition for review1 assailing the Decision2 of the
denied because of the loss of said will after the filing of the petition
Court of Appeals of 12 January 2001 in CA-G.R. CV No. 47644. The
A few years after, Silvino Suntay, one of the surviving sons, claimed Court of Appeals sustained the Resolution3 of the Regional Trial Court
that he had found among the documents of his late father, a will and of Kabankalan, Negros Occidental, Branch 61 ("RTC-Kabankalan"),
testament in Chinese characters and executed by the deceased on Jan admitting to probate the last will and testament of Alipio Abada
4, 1931, and that the same was filed, recorded and probated in China. ("Abada").
Silvino Suntay filed a petition in the intestate proceedings praying for
the probate of the will executed in the Philippines on November 1929 The Antecedent Facts
(Exhibit B) or of the will executed in Amoy, Fookien, China, on 4
January 1931.
Abada died sometime in May 1940.4 His widow Paula Toray ("Toray")
ISSUE: WON the will executed in China can be probated in the died sometime in September 1943. Both died without legitimate
Philippines NO children.
HELD:
The fact that the municipal district court of Amoy, China, is a probate On 13 September 1968, Alipio C. Abaja ("Alipio") filed with the then
court must be proved. The law of China on procedure in the probate or Court of First Instance of Negros Occidental (now RTC-Kabankalan) a
allowance of wills must also be proved. The legal requirements for the petition,5 docketed as SP No. 070 (313-8668), for the probate of the
execution of a valid will in China in 1931 should also be established by last will and testament ("will") of Abada. Abada allegedly named as his
competent evidence. There is no proof on these points. testamentary heirs his natural children Eulogio Abaja ("Eulogio") and
In the absence of proof that the municipal district court of Amoy is a Rosario Cordova. Alipio is the son of Eulogio.
probate court and on the Chinese law of procedure in probate matters,
it may be presumed that the proceedings in the matter of probating or Nicanor Caponong ("Caponong") opposed the petition on the ground
allowing a will in the Chinese courts are the a deposition or to a that Abada left no will when he died in 1940. Caponong further alleged
perpetuation of testimony, and even if it were so it does not measure that the will, if Abada really executed it, should be disallowed for the
same as those provided for in our laws on the subject. It is a following reasons: (1) it was not executed and attested as required by
proceedings in rem and for the validity of such proceedings personal law; (2) it was not intended as the last will of the testator; and (3) it
notice or by publication or both to all interested parties must be made. was procured by undue and improper pressure and influence on the
The interested parties in the case were known to reside in the part of the beneficiaries. Citing the same grounds invoked by
Philippines. The evidence shows that no such notice was received by Caponong, the alleged intestate heirs of Abada, namely, Joel, Julian,
the interested parties residing in the Philippines. Paz, Evangeline, Geronimo, Humberto, Teodora and Elena Abada
The order of the municipal district court of Amoy, China does not ("Joel Abada, et al."), and Levi, Leandro, Antonio, Florian, Hernani and
purport to probate or allow the will which was the subject of the Carmela Tronco ("Levi Tronco, et al."), also opposed the petition. The
proceedings. In view thereof, the will and the alleged probate thereof oppositors are the nephews, nieces and grandchildren of Abada and
cannot be said to have been done in accordance with the accepted Toray.
basic and fundamental concepts and principles followed in the probate
and allowance of wills. Consequently, the authenticated transcript of On 13 September 1968, Alipio filed another petition6 before the RTC-
proceedings held in the municipal district court of Amoy, China, cannot Kabankalan, docketed as SP No. 071 (312-8669), for the probate of
be deemed and accepted as proceedings leading to the probate or the last will and testament of Toray. Caponong, Joel Abada, et al., and
allowance of a will and, therefore, the will referred to therein cannot Levi Tronco, et al. opposed the petition on the same grounds they
be allowed, filed and recorded by a competent court of this country. cited in SP No. 070 (313-8668).

On 20 September 1968, Caponong filed a petition7 before the RTC-


No 4th and 5th Set Kabankalan, docketed as SP No. 069 (309), praying for the issuance in
his name of letters of administration of the intestate estate of Abada
and Toray.
6th Set
In an Order dated 14 August 1981, the RTC-Kabankalan admitted to
probate the will of Toray. Since the oppositors did not file any motion
ARTICLE 804 for reconsideration, the order allowing the probate of Toray’s will
became final and executory.8

FIRST DIVISION
In an order dated 23 November 1990, the RTC-Kabankalan designated
Belinda Caponong-Noble ("Caponong-Noble") Special Administratrix of
G.R. No. 147145 January 31, 2005 the estate of Abada and Toray.9 Caponong-Noble moved for the
dismissal of the petition for probate of the will of Abada. The RTC-
TESTATE ESTATE OF THE LATE ALIPIO ABADA, BELINDA Kabankalan denied the motion in an Order dated 20 August 1991.10
CAPONONG-NOBLE, petitioner,
vs. Sometime in 1993, during the proceedings, Presiding Judge Rodolfo S.
ALIPIO ABAJA and NOEL ABELLAR, respondents. Layumas discovered that in an Order dated 16 March 1992, former
Presiding Judge Edgardo Catilo had already submitted the case for
DECISION decision. Thus, the RTC-Kabankalan rendered a Resolution dated 22
June 1994, as follows:
CARPIO, J.:
27
Wills and Succession Case Digests
There having been sufficient notice to the heirs as required by law; The Court of Appeals did not err in sustaining the RTC-Kabankalan in
that there is substantial compliance with the formalities of a Will as the admitting to probate the will of Abada.
law directs and that the petitioner through his testimony and the
deposition of Felix Gallinero was able to establish the regularity of the
The Applicable Law
execution of the said Will and further, there being no evidence of bad
faith and fraud, or substitution of the said Will, the Last Will and
Testament of Alipio Abada dated June 4, 1932 is admitted and allowed Abada executed his will on 4 June 1932. The laws in force at that time
probate. are the Civil Code of 1889 or the Old Civil Code, and Act No. 190 or
the Code of Civil Procedure14 which governed the execution of wills
before the enactment of the New Civil Code.
As prayed for by counsel, Noel Abbellar11 is appointed administrator of
the estate of Paula Toray who shall discharge his duties as such after
letters of administration shall have been issued in his favor and after The matter in dispute in the present case is the attestation clause in
taking his oath and filing a bond in the amount of Ten Thousand the will of Abada. Section 618 of the Code of Civil Procedure, as
(P10,000.00) Pesos. amended by Act No. 2645,15 governs the form of the attestation clause
of Abada’s will.16Section 618 of the Code of Civil Procedure, as
amended, provides:
Mrs. Belinda C. Noble, the present administratrix of the estate of Alipio
Abada shall continue discharging her duties as such until further orders
from this Court. SEC. 618. Requisites of will. – No will, except as provided in the
preceding section,17 shall be valid to pass any estate, real or personal,
nor charge or affect the same, unless it be written in the language or
SO ORDERED.12
dialect known by the testator and signed by him, or by the testator’s
name written by some other person in his presence, and by his
The RTC-Kabankalan ruled on the only issue raised by the oppositors express direction, and attested and subscribed by three or more
in their motions to dismiss the petition for probate, that is, whether the credible witnesses in the presence of the testator and of each other.
will of Abada has an attestation clause as required by law. The RTC- The testator or the person requested by him to write his name and the
Kabankalan further held that the failure of the oppositors to raise any instrumental witnesses of the will, shall also sign, as aforesaid, each
other matter forecloses all other issues. and every page thereof, on the left margin, and said pages shall be
numbered correlatively in letters placed on the upper part of each
sheet. The attestation shall state the number of sheets or pages used,
Not satisfied with the Resolution, Caponong-Noble filed a notice of
upon which the will is written, and the fact that the testator signed the
appeal.
will and every page thereof, or caused some other person to write his
name, under his express direction, in the presence of three witnesses,
In a Decision promulgated on 12 January 2001, the Court of Appeals and the latter witnessed and signed the will and all pages thereof in
affirmed the Resolution of the RTC-Kabankalan. The appellate court the presence of the testator and of each other.
found that the RTC-Kabankalan properly admitted to probate the will
of Abada.
Requisites of a Will under the Code of Civil Procedure

Hence, the present recourse by Caponong-Noble.


Under Section 618 of the Code of Civil Procedure, the requisites of a
will are the following:
The Issues
(1) The will must be written in the language or dialect
The petition raises the following issues: known by the testator;

1. What laws apply to the probate of the last will of Abada; (2) The will must be signed by the testator, or by the
testator’s name written by some other person in his
2. Whether the will of Abada requires acknowledgment presence, and by his express direction;
before a notary public;13
(3) The will must be attested and subscribed by three or
3. Whether the will must expressly state that it is written in more credible witnesses in the presence of the testator and
a language or dialect known to the testator; of each other;

4. Whether the will of Abada has an attestation clause, and (4) The testator or the person requested by him to write his
if so, whether the attestation clause complies with the name and the instrumental witnesses of the will must sign
requirements of the applicable laws; each and every page of the will on the left margin;

5. Whether Caponong-Noble is precluded from raising the (5) The pages of the will must be numbered correlatively in
issue of whether the will of Abada is written in a language letters placed on the upper part of each sheet;
known to Abada;
(6) The attestation shall state the number of sheets or pages
6. Whether evidence aliunde may be resorted to in the used, upon which the will is written, and the fact that the
probate of the will of Abada. testator signed the will and every page of the will, or caused
some other person to write his name, under his express
direction, in the presence of three witnesses, and the
The Ruling of the Court witnesses witnessed and signed the will and all pages of the
will in the presence of the testator and of each other.
28
Wills and Succession Case Digests
Caponong-Noble asserts that the will of Abada does not indicate that it Suscrito y declarado por el testador Alipio Abada como su ultima
is written in a language or dialect known to the testator. Further, she voluntad y testamento en presencia de nosotros, habiendo tambien el
maintains that the will is not acknowledged before a notary public. She testador firmado en nuestra presencia en el margen izquierdo de todas
cites in particular Articles 804 and 805 of the Old Civil Code, thus: y cada una de las hojas del mismo. Y en testimonio de ello, cada uno
de nosotros lo firmamos en presencia de nosotros y del testador al pie
de este documento y en el margen izquierdo de todas y cada una de
Art. 804. Every will must be in writing and executed in [a] language or
las dos hojas de que esta compuesto el mismo, las cuales estan
dialect known to the testator.
paginadas correlativamente con las letras "UNO" y "DOS’ en la parte
superior de la carrilla.28
Art. 806. Every will must be acknowledged before a notary public by
the testator and the witnesses. xxx18
Caponong-Noble proceeds to point out several defects in the
attestation clause. Caponong-Noble alleges that the attestation clause
Caponong-Noble actually cited Articles 804 and 806 of the New Civil fails to state the number of pages on which the will is written.
Code.19 Article 804 of the Old Civil Code is about the rights and
obligations of administrators of the property of an absentee, while
The allegation has no merit. The phrase "en el margen izquierdo de
Article 806 of the Old Civil Code defines a legitime.
todas y cada una de las dos hojas de que esta compuesto el mismo"
which means "in the left margin of each and every one of the two
Articles 804 and 806 of the New Civil Code are new provisions. Article pages consisting of the same" shows that the will consists of two
804 of the New Civil Code is taken from Section 618 of the Code of pages. The pages are numbered correlatively with the letters "ONE"
Civil Procedure.20 Article 806 of the New Civil Code is taken from Article and "TWO" as can be gleaned from the phrase "las cuales estan
685 of the Old Civil Code21 which provides: paginadas correlativamente con las letras "UNO" y "DOS."

Art. 685. The notary and two of the witnesses who authenticate the Caponong-Noble further alleges that the attestation clause fails to
will must be acquainted with the testator, or, should they not know state expressly that the testator signed the will and its every page in
him, he shall be identified by two witnesses who are acquainted with the presence of three witnesses. She then faults the Court of Appeals
him and are known to the notary and to the attesting witnesses. The for applying to the present case the rule on substantial compliance
notary and the witnesses shall also endeavor to assure themselves that found in Article 809 of the New Civil Code.29
the testator has, in their judgment, the legal capacity required to make
a will.
The first sentence of the attestation clause reads: "Suscrito y
declarado por el testador Alipio Abada como su ultima voluntad y
Witnesses authenticating a will without the attendance of a notary, in testamento en presencia de nosotros, habiendo tambien el testador
cases falling under Articles 700 and 701, are also required to know the firmado en nuestra presencia en el margen izquierdo de todas y cada
testator. una de las hojas del mismo." The English translation is: "Subscribed
and professed by the testator Alipio Abada as his last will and
However, the Code of Civil Procedure22 repealed Article 685 of the Old testament in our presence, the testator having also signed it in our
Civil Code. Under the Code of Civil Procedure, the intervention of a presence on the left margin of each and every one of the pages of the
notary is not necessary in the execution of any will.23 Therefore, same." The attestation clause clearly states that Abada signed the will
Abada’s will does not require acknowledgment before a notary and its every page in the presence of the witnesses.
public.1awphi1.nét
However, Caponong-Noble is correct in saying that the attestation
Caponong-Noble points out that nowhere in the will can one discern clause does not indicate the number of witnesses. On this point, the
that Abada knew the Spanish language. She alleges that such defect is Court agrees with the appellate court in applying the rule on
fatal and must result in the disallowance of the will. On this issue, the substantial compliance in determining the number of witnesses. While
Court of Appeals held that the matter was not raised in the motion to the attestation clause does not state the number of witnesses, a close
dismiss, and that it is now too late to raise the issue on appeal. We inspection of the will shows that three witnesses signed it.
agree with Caponong-Noble that the doctrine of estoppel does not
apply in probate proceedings.24 In addition, the language used in the This Court has applied the rule on substantial compliance even before
will is part of the requisites under Section 618 of the Code of Civil the effectivity of the New Civil Code. InDichoso de Ticson v. De
Procedure and the Court deems it proper to pass upon this issue. Gorostiza,30 the Court recognized that there are two divergent
tendencies in the law on wills, one being based on strict construction
Nevertheless, Caponong-Noble’s contention must still fail. There is no and the other on liberal construction. In Dichoso, the Court noted
statutory requirement to state in the will itself that the testator knew thatAbangan v. Abangan,31 the basic case on the liberal construction,
the language or dialect used in the will.25 This is a matter that a party is cited with approval in later decisions of the Court.
may establish by proof aliunde.26 Caponong-Noble further argues that
Alipio, in his testimony, has failed, among others, to show that Abada In Adeva vda. De Leynez v. Leynez,32 the petitioner, arguing for
knew or understood the contents of the will and the Spanish language liberal construction of applicable laws, enumerated a long line of cases
used in the will. However, Alipio testified that Abada used to gather to support her argument while the respondent, contending that the
Spanish-speaking people in their place. In these gatherings, Abada and rule on strict construction should apply, also cited a long series of
his companions would talk in the Spanish language.27 This sufficiently cases to support his view. The Court, after examining the cases
proves that Abada speaks the Spanish language. invoked by the parties, held:

The Attestation Clause of Abada’s Will x x x It is, of course, not possible to lay down a general rule, rigid and
inflexible, which would be applicable to all cases. More than anything
A scrutiny of Abada’s will shows that it has an attestation clause. The else, the facts and circumstances of record are to be considered in the
attestation clause of Abada’s will reads: application of any given rule. If the surrounding circumstances point to
a regular execution of the will, and the instrument appears to have
29
Wills and Succession Case Digests
been executed substantially in accordance with the requirements of EN BANC
the law, the inclination should, in the absence of any suggestion of
bad faith, forgery or fraud, lean towards its admission to probate,
G.R. No. L-1787 August 27, 1948
although the document may suffer from some imperfection of
language, or other non-essential defect. x x x.
Testacy of Sixto Lopez. JOSE S. LOPEZ, petitioner-appellee,
vs.
An attestation clause is made for the purpose of preserving, in
AGUSTIN LIBORO, oppositor-appellant.
permanent form, a record of the facts attending the execution of the
will, so that in case of failure of the memory of the subscribing
witnesses, or other casualty, they may still be proved. (Thompson on TUASON, J.:
Wills, 2d ed., sec. 132.) A will, therefore, should not be rejected where
its attestation clause serves the purpose of the law. x x In the Court of First Instance of Batangas the appellant opposed
x 331a\^/phi1.net unsuccessfully the probate of what purports to be the last will and
testament (Exhibit A) of Don Sixto Lopez, who died at the age of 83 in
We rule to apply the liberal construction in the probate of Abada’s will. Balayan, Batangas, on March 3, 1947, almost six months after the
Abada’s will clearly shows four signatures: that of Abada and of three document in question was executed. In the court below, the present
other persons. It is reasonable to conclude that there are three appellant specified five grounds for his opposition, to wit: (1) that the
witnesses to the will. The question on the number of the witnesses is deceased never executed the alleged will; (2) that his signature
answered by an examination of the will itself and without the need for appearing in said will was a forgery; (3) that at the time of the
presentation of evidence aliunde. The Court explained the extent and execution of the will, he was wanting in testamentary as well as
limits of the rule on liberal construction, thus: mental capacity due to advanced age; (4) that, if he did ever execute
said will, it was not executed and attested as required by law, and one
of the alleged instrumental witnesses was incapacitated to act as such;
[T]he so-called liberal rule does not offer any puzzle or difficulty, nor
and it was procured by duress, influence of fear and threats and undue
does it open the door to serious consequences. The later decisions do
and improper pressure and influence on the part of the beneficiaries
tell us when and where to stop; they draw the dividing line with
instituted therein, principally the testator's sister, Clemencia Lopez,
precision.They do not allow evidence aliunde to fill a void in any
and the herein proponent, Jose S. Lopez; and (5) that the signature of
part of the document or supply missing details that should
the testator was procured by fraud or trick.
appear in the will itself.l^vvphi1.net They only permit a probe
into the will, an exploration within its confines, to ascertain its
meaning or to determine the existence or absence of the In this instance only one of these objections is reiterated, formulated
requisite formalities of law. This clear, sharp limitation eliminates in these words: "That the court a quo erred in holding that the
uncertainty and ought to banish any fear of dire results.34 (Emphasis document Exhibit "A" was executed in all particulars as required by
supplied) law." To this objection is added the alleged error of the court "in
allowing the petitioner to introduce evidence that Exhibit "A" was
written in a language known to the decedent after petitioner rested his
The phrase "en presencia de nosotros" or "in our presence" coupled
case and over the vigorous objection of the oppositor.
with the signatures appearing on the will itself and after the attestation
clause could only mean that: (1) Abada subscribed to and professed
before the three witnesses that the document was his last will, and (2) The will in question comprises two pages, each of which is written on
Abada signed the will and the left margin of each page of the will in one side of a separate sheet. The first sheet is not paged either in
the presence of these three witnesses. letters or in Arabic numerals. This, the appellant believes, is a fatal
defect.
Finally, Caponong-Noble alleges that the attestation clause does not
expressly state the circumstances that the witnesses witnessed and The purpose of the law in prescribing the paging of wills is guard
signed the will and all its pages in the presence of the testator and of against fraud, and to afford means of preventing the substitution or of
each other. This Court has ruled: defecting the loss of any of its pages. (Abangan vs. Abangan, 40 Phil.,
476.) In the present case, the omission to put a page number on the
first sheet, if that be necessary, is supplied by other forms of
Precision of language in the drafting of an attestation clause is
identification more trustworthy than the conventional numerical words
desirable. However, it is not imperative that a parrot-like copy of the
or characters. The unnumbered page is clearly identified as the first
words of the statute be made. It is sufficient if from the language
page by the internal sense of its contents considered in relation to the
employed it can reasonably be deduced that the attestation clause
contents of the second page. By their meaning and coherence, the first
fulfills what the law expects of it.35
and second lines on the second page are undeniably a continuation of
the last sentence of the testament, before the attestation clause,
The last part of the attestation clause states "en testimonio de ello, which starts at the bottom of the preceding page. Furthermore, the
cada uno de nosotros lo firmamos en presencia de nosotros y del unnumbered page contains the caption "TESTAMENTO," the invocation
testador." In English, this means "in its witness, every one of us also of the Almighty, and a recital that the testator was in full use of his
signed in our presence and of the testator." This clearly shows that the testamentary faculty, — all of which, in the logical order of sequence,
attesting witnesses witnessed the signing of the will of the testator, precede the direction for the disposition of the marker's property.
and that each witness signed the will in the presence of one another Again, as page two contains only the two lines above mentioned, the
and of the testator. attestation clause, the mark of the testator and the signatures of the
witnesses, the other sheet can not by any possibility be taken for other
than page one. Abangan vs. Abangan,supra, and Fernandez vs. Vergel
WHEREFORE, we AFFIRM the Decision of the Court of Appeals of 12
de Dios, 46 Phil., 922 are decisive of this issue.
January 2001 in CA-G.R. CV No. 47644.

Although not falling within the purview and scope of the first
SO ORDERED.
assignment of error, the matter of the credibility of the witnesses is
assailed under this heading. On the merits we do not believe that the
30
Wills and Succession Case Digests
appellant's contention deserves serious consideration. Such written in Tagalog was ordered although it did not say that the testator
contradictions in the testimony of the instrumental witnesses as are set knew that idiom. In fact, there was not even extraneous proof on the
out in the appellant's brief are incidents not all of which every one of subject other than the fact that the testator resided in a Tagalog
the witnesses can be supposed to have perceived, or to recall in the region, from which the court said "a presumption arises that said Maria
same order in which they occurred. Tapia knew the Tagalog dialect.

Everyday life and the result of investigations made in the The order of the lower court ordering the probate of the last will and
field of experimental psychology show that the testament of Don Sixto Lopez is affirmed, with costs.
contradictions of witnesses generally occur in the details of a
certain incident, after a long series of questioning, and far
EN BANC
from being an evidence of falsehood constitute a
demonstration of good faith. Inasmuch as not all those who
witness an incident are impressed in like manner, it is but G.R. No. L-13431 November 12, 1919
natural that in relating their impressions they should not
agree in the minor details; hence, the contradictions in their In re will of Ana Abangan.
testimony. (People vs. Limbo, 49 Phil., 99.) GERTRUDIS ABANGAN, executrix-appellee,
vs.
The testator affixed his thumbmark to the instrument instead of ANASTACIA ABANGAN, ET AL., opponents-appellants.
signing his name. The reason for this was that the testator was
suffering from "partial paralysis." While another in testator's place AVANCEÑA, J.:
might have directed someone else to sign for him, as appellant
contends should have been done, there is nothing curious or
suspicious in the fact that the testator chose the use of mark as the On September 19, 1917, the Court of First Instance of Cebu
means of authenticating his will. It was a matter of taste or admitted to probate Ana Abangan's will executed July, 1916. From this
preference. Both ways are good. A statute requiring a will to be decision the opponent's appealed.
"signed" is satisfied if the signature is made by the testator's mark.
(De Gala vs. Gonzales and Ona, 53 Phil., 108; 28 R. C. L., 117.) Said document, duly probated as Ana Abangan's will, consists of
two sheets, the first of which contains all of the disposition of the
With reference to the second assignment of error, we do not share the testatrix, duly signed at the bottom by Martin Montalban (in the name
opinion that the trial court communicated an abuse of discretion in and under the direction of the testatrix) and by three witnesses. The
allowing the appellant to offer evidence to prove knowledge of Spanish following sheet contains only the attestation clause duly signed at the
by the testator, the language in which the will is drawn, after the bottom by the three instrumental witnesses. Neither of these sheets is
petitioner had rested his case and after the opponent had moved for signed on the left margin by the testatrix and the three witnesses, nor
dismissal of the petition on the ground of insufficiency of evidence. It numbered by letters; and these omissions, according to appellants'
is within the discretion of the court whether or not to admit further contention, are defects whereby the probate of the will should have
evidence after the party offering the evidence has rested, and this been denied. We are of the opinion that the will was duly admitted to
discretion will not be reviewed except where it has clearly been probate.
abused. (64 C. J., 160.) More, it is within the sound discretion of the
court whether or not it will allow the case to be reopened for the In requiring that each and every sheet of the will should also be
further introduction of evidence after a motion or request for a signed on the left margin by the testator and three witnesses in the
nonsuit, or a demurrer to the evidence, and the case may be reopened presence of each other, Act No. 2645 (which is the one applicable in
after the court has announced its intention as to its ruling on the the case) evidently has for its object (referring to the body of the will
request, motion, or demurrer, or has granted it or has denied the itself) to avoid the substitution of any of said sheets, thereby changing
same, or after the motion has been granted, if the order has not been the testator's dispositions. But when these dispositions are wholly
written, or entered upon the minutes or signed. (64 C. J., 164.) written on only one sheet signed at the bottom by the testator and
three witnesses (as the instant case), their signatures on the left
In this jurisdiction this rule has been followed. After the parties have margin of said sheet would be completely purposeless. In requiring
produced their respective direct proofs, they are allowed to offer this signature on the margin, the statute took into consideration,
rebutting evidence only, but, it has been held, the court, for good undoubtedly, the case of a will written on several sheets and must
reasons, in the furtherance of justice, may permit them to offer have referred to the sheets which the testator and the witnesses do
evidence upon their original case, and its ruling will not be disturbed in not have to sign at the bottom. A different interpretation would
the appellate court where no abuse of discretion appears. (Siuliong assume that the statute requires that this sheet, already signed at the
and Co. vs. Ylagan, 43 Phil., 393; U. S. vs. Alviar, 36 Phil., 804.) So, bottom, be signed twice. We cannot attribute to the statute such an
generally, additional evidence is allowed when it is newly discovered, intention. As these signatures must be written by the testator and the
or where it has been omitted through inadvertence or mistake, or witnesses in the presence of each other, it appears that, if the
where the purpose of the evidence is to the evidence is to correct signatures at the bottom of the sheet guaranties its authenticity,
evidence previously offered. (I Moran's Comments on the Rules of another signature on its left margin would be unneccessary; and if
Court, 2d ed., 545; 64 C. J., 160-163.) The omission to present they do not guaranty, same signatures, affixed on another part of
evidence on the testator's knowledge of Spanish had not been same sheet, would add nothing. We cannot assume that the statute
deliberate. It was due to a misapprehension or oversight. regards of such importance the place where the testator and the
witnesses must sign on the sheet that it would consider that their
signatures written on the bottom do not guaranty the authenticity of
Although alien to the second assignment of error, the appellant the sheet but, if repeated on the margin, give sufficient security.
impugns the will for its silence on the testator's understanding of the
language used in the testament. There is no statutory requirement
that such knowledge be expressly stated in the will itself. It is a matter In requiring that each and every page of a will must be
that may be established by proof aliunde. This Court so impliedly ruled numbered correlatively in letters placed on the upper part of the sheet,
in Gonzales vs. Laurel, 46 Phil., 781, in which the probate of a will it is likewise clear that the object of Act No. 2645 is to know whether
31
Wills and Succession Case Digests
any sheet of the will has been removed. But, when all the dispositive 1. In holding that in order to be valid the will in question
parts of a will are written on one sheet only, the object of the statute should have been drawn up in the Ilocano dialect.
disappears because the removal of this single sheet, although
unnumbered, cannot be hidden.
2. In not holding that the testator Piraso did not know the
Ilocano dialect well enough to understand a will drawn up in
What has been said is also applicable to the attestation clause. said dialect.
Wherefore, without considering whether or not this clause is an
essential part of the will, we hold that in the one accompanying the
3. In refusing to admit the will in question to probate.
will in question, the signatures of the testatrix and of the three
witnesses on the margin and the numbering of the pages of the sheet
are formalities not required by the statute. Moreover, referring The fundamental errors assigned refer chiefly to the part of the
specially to the signature of the testatrix, we can add that same is not judgment which reads as follows:
necessary in the attestation clause because this, as its name implies,
appertains only to the witnesses and not to the testator since the latter The evidence shows that Piraso knew how to speak the
does not attest, but executes, the will. Ilocano dialect, although imperfectly, and could make
himself understood in that dialect, and the court is of the
Synthesizing our opinion, we hold that in a will consisting of opinion that his will should have been written in that dialect.
two sheets the first of which contains all the testamentary dispositions
and is signed at the bottom by the testator and three witnesses and Such statements were not unnecessary for the decision of the case,
the second contains only the attestation clause and is signed also at once it has been proved without contradiction, that the said deceased
the bottom by the three witnesses, it is not necessary that both sheets Piraso did not know English, in which language the instrument Exhibit
be further signed on their margins by the testator and the witnesses, A, alleged to be his will, is drawn. Section 628 of the Code of Civil
or be paged. Procedure, strictly provides that:

The object of the solemnities surrounding the execution of wills "No will, except as provides in the preceding section" (as to wills
is to close the door against bad faith and fraud, to avoid substitution of executed by a Spaniard or a resident of the Philippine Islands, before
wills and testaments and to guaranty their truth and authenticity. the present Code of Civil Procedure went into effect), "shall be valid to
Therefore the laws on this subject should be interpreted in such a way pass any estate, real or personal, nor charge or affect the
as to attain these primordal ends. But, on the other hand, also one same, unless it be written in the language or dialect known by the
must not lose sight of the fact that it is not the object of the law to testator," etc. (Emphasis supplied.) Nor can the presumption in favor
restrain and curtail the exercise of the right to make a will. So when an of the will established by this court in Abangan vs. Abangan (40 Phil.,
interpretation already given assures such ends, any other 476), to the effect that the testator is presumed to know the dialect of
interpretation whatsoever, that adds nothing but demands more the locality where he resides, unless there is proof to the contrary,
requisites entirely unnecessary, useless and frustative of the testator's even he invoked in support of the probate of said document Exhibit A,
last will, must be disregarded. lawphil.net as a will, because, in the instant case, not only is it not proven that
English is the language of the City of Baguio where the deceased
As another ground for this appeal, it is alleged the records do Piraso lived and where Exhibit A was drawn, but that the record
not show that the testarix knew the dialect in which the will is written. contains positive proof that said Piraso knew no other language than
But the circumstance appearing in the will itself that same was the Igorrote dialect, with a smattering of Ilocano; that is, he did not
executed in the city of Cebu and in the dialect of this locality where the know the English language in which Exhibit A is written. So that even if
testatrix was a neighbor is enough, in the absence of any proof to the such a presumption could have been raised in this case it would have
contrary, to presume that she knew this dialect in which this will is been wholly contradicted and destroyed.
written.
We consider the other question raised in this appeal needless and
For the foregoing considerations, the judgment appealed from immaterial to the adjudication of this case, it having been, as it was,
is hereby affirmed with costs against the appellants. So ordered. proven, that the instrument in question could not be probated as the
last will and testament of the deceased Piraso, having been written in
the English language with which the latter was unacquainted.
EN BANC

Such a result based upon solidly established facts would be the same
G.R. No. L-28946 January 16, 1929
whether or not it be technically held that said will, in order to be valid,
must be written in the Ilocano dialect; whether or not the Igorrote or
In re estate of Piraso, deceased. Inibaloi dialect is a cultivated language and used as a means of
SIXTO ACOP, petitioner-appellant, communication in writing, and whether or not the testator Piraso knew
vs. the Ilocano dialect well enough to understand a will written in said
SALMING PIRASO, ET AL., opponents-appellees. dialect. The fact is, we repeat, that it is quite certain that the
instrument Exhibit A was written in English which the supposed
testator Piraso did not know, and this is sufficient to invalidate said will
ROMUALDEZ, J.:
according to the clear and positive provisions of the law, and inevitably
prevents its probate.
This appeal was taken from the judgment of the Court of First
Instance of Benguet, denying the probate of the instrument Exhibit A,
EN BANC
as the last will and testament of the deceased Piraso.

G.R. No. L-2862 April 21, 1952


The proponent-appellant assigns the following as alleged errors of the
lower court:

32
Wills and Succession Case Digests
TESTATE ESTATE OF MARIA ZUÑIGA VDA. DE PANDO, the same hand that wrote the genuine signatures he had examined
deceased. JUAN REYES, petitioner-administrator-appellant, and which he used as basis of his analytical study, thereby concluding
vs. that said signatures are not genuine. The lower court gave full faith
DOLORES ZUÑIGA VDA. DE VIDAL, oppositor-appellee. and credit to the opinion of this expert witness, and decreed as a
result that the will cannot be admitted to probate.
BAUTISTA ANGELO, J.:
There are, however, certain important facts and circumstances which
make us differ from this opinion of the lower court. In the first place,
This concerns the admission to probate of a document claimed to be
we find that the opinion of this expert witness has been rebutted by
the last will and testament of Maria Zuñiga Vda. de Pando who died in
another expert witness Jose C. Espinosa, whose opinion, to our mind,
the City of Manila on October 29, 1945.
deserves more weight and credence. And our reason for reaching this
conclusion is the fact that the standards of the comparison used by
On November 6, 1945, a petition for the probate of said will was filed Espinosa are more reliable than those used by Villanueva in the
in the Court of First Instance of Manila. On December 21, 1945, comparison are two signatures appearing in two documents executed
Dolores Zuñiga Vda. de Vidal, sister of the deceased, filed an on November 10, 1942, one signature in an identification card affixed
opposition based on several grounds. And, after several days of trial, in April 1940, a half signature appearing in a letter written on October
at which both parties presented their respective evidence, the court 8, 1943, one signature appearing in a letter written on July 16, 1945,
rendered its decision disallowing the will on the ground that the and one signature appearing in a letter written on January, 1945,
signatures of the deceased appearing therein are not genuine, that it whereas the disputed signatures appearing in the will were affixed on
was not proven that the deceased knew the Spanish language in which October 29, 1945. On the other hand, the standards used by Espinosa
it was written, and that even if the signatures are genuine, the same in making his comparative study bear dates much closer to that of the
reveal that the deceased was not of sound mind when she signed the disputed signatures. Thus, he examined four genuine signatures that
will. From this decision petitioner appealed to this Court. were affixed on October 16, 1945, other four signatures that were
affixed in October 1945, one on January 2, 1945, on January 24, 1945,
While petitioner imputes nine errors to the lower court, we believe, and one on September 24 1945, He also examined one affixed on
however, that for purposes of this appeal of discussion of some would March 12, 1941, only for emphasis. The closeness or proximity of the
be sufficient. Thus, the issues may be boiled down as follows: 1) time in which the standards used had been written to that of the
Whether or not the signatures of the deceased appearing in the will suspected signature or document is very important to bring about an
(Exhibit "C") are genuine; 2) whether or not there is evidence to show accurate analysis and conclusion. the selection of the proper standards
that the testatrix knew the language in which the will was written; and of comparison is of paramount importance especially if we consider the
3) whether or not the testatrix was of sound and disposing mind when age and the state of the health of the author of the questioned
she signed the will. signatures. a signature affixed in 1941 may involved characteristics
different from those borne by a signature affixed in 1945. And this is
because the passing of time and the increase in age may have a
1. To prove that the will was signed by the testatrix in accordance with decisive influence in the writing characteristics of a person. It for this
law, petitioner presented as witnesses the three persons who attested reasons that the authorities of the opinion that in order to bring about
to the execution of the will. These witnesses are: Cornelia Gonzales de an accurate comparison and analysis, the standard of comparison must
Romero, Quintin Ulpindo and Consuelo B. de Catindig. The first used to be as close as possible in point of time to the suspected signature.
provide the deceased with ice every day, and in one of those occasions Such was not followed in the study made by Villanueva. But such was
she went to her house to bring ice, she requested to act witness to the observed in the study made by Espinosa. He followed the standard
execution of the will. The second was a laborer whose job was is to fix practice in handwriting analysis. It is for this reason that we hold that
bed made of rattan, and in one of those days he went to the house of Espinosa's opinion deserves more weight and consideration.
the deceased to work, he was asked also to witness the signing of the
will. And the third was a neighbor of the deceased for many years who
was also requested to act as an instrumental witness. These witnesses The standards should, if possible, have been made by the
testified in their own simple and natural way that the deceased signed same time as the suspected document. It is preferable that
the will seated on her bed but over a small table placed near the bed the standards embraced the time of the origin of the
in their presence, and after she had signed it in the places where her document, so that one part comes from the time after the
signatures appear, they in turn signed it in the presence and in the origin. (Page 423 "Modern Criminal Investigation" by
presence of each other. This is the substance of what they have Soderman and O' Connell, 1936, Funk and Wagnalls
testified and from an examination of their testimony to the court Company, New York and London.)
entertains no doubt that they had told the truth. There is nothing in
their testimony which may in any way reflect against their credibility If possible less than five or six signatures should always be
nor has the oppositor proven fact or circumstance which may give rise examined and preferably double that number." (Page 139,
to the suspicion that they testified out of personal interest or pecuniary Forensic Chemistry and Scientific Criminal Investigation by
consideration. They have impressed the court as simple persons who Lucas, 1935, Edward Arnold & Co., London.)
had intervened in the execution of the will out merely of deference to
the testatrix whom they had served for sometime and had known to
2. Another ground on which the lower court base the disallowance of
be a good and respectable woman.
the will is the failure of the petitioner to prove that the testratrix knew
and spoke the language in which the will in question appears to have
What evidence has the oppositor presented to contradict the testimony been written. According to the lower court, the law requires that the
of these instrumental witnesses? only one expert witness, Jose G. will should be written in the dialect or language known to the testator
Villanueva, who made a comparative analysis of the signatures and this fact having been proven, the probate of the will must fail. And
appearing in the will in relation to some genuine signatures of the the wall was disallowed.
deceased, and in fact testified on the analysis and study he has made
of said signatures and submitted a memorandum on the study and
There is indeed nothing in the testimony of the witnesses presented by
comparison he has made. And in his testimony as well as in his
the petitioner which would indicate that the testatrix knew and spoke
memorandum, this witness has reached the conclusion that the hand
the Spanish language used in the preparation of the will in question.
that wrote the signatures of the deceased appearing in the will is not
33
Wills and Succession Case Digests
But, in our opinion, this failure alone does not in itself suffice to unusual and not exactly like those in the standard writing.
conclude that this important requirement of the law has not been Those who write of difficulty or hesitation through some
complied with, it appearing that there is enough evidence on record physical infirmity may sometimes produced broken and
which supplies this technical omission. In the first place, we have the unfinished signatures and these results, which in themselves
undisputed fact that the deceased was a mestiza española, was are distinctly divergent as compared with signatures
married to a Spaniard, Recaredo Pando, and made several trips to produced under conditions of strength and health, may
Spain. In the second place, we have the very letters submitted as forcefully indicate genuineness . Under conditions of
evidence by the oppositor written in Spanish by the deceased weakness due to diseased or age, parts of a genuine
possessed the Spanish language, oppositor cannot now be allowed to signature may be clumsily written over a second time not at
allege the contrary. These facts give rise to the presumption that the just the same place and in a way when clearly shows that
testatrix knew the language in which the testament has been written, the writer either could not see or was so week and
which presumption should stand unless the contrary is proven inattentive as not to care what the result might be. This
(Abangan vs. Abangan, 40 Phil., 476; Gonzales vs. Laurel, 46 Phil. careless, perfectly evident repetition (figure 184), unlike the
750). And this presumption has not been overcome. And finally, we painstaking and delicate retouching of the forger, often
have the very attestation clause of the will which states that the indicates genuineness. (Page 365, Questioned Documents by
testatrix knew and possessed the Spanish language. It is true that this Osborne, 2nd Edition, 1927.)
matter is not required to be stated in the attestation clause, but its
inclusion can only mean that the instrumental witnesses wanted to
We are, therefore, of the opinion that the lower court erred in
make it of record that the deceased knew the language in which the
disallowing the will Exhibit C.
will was written. There is, therefore, no valid reason why the will
should be avoided on this ground.
Wherefore, the decision appealed from is hereby reversed. The Court
admits the will Exhibit C to probate, and remands these case to the
3. The remaining ground which the lower court has considered in
lower court for further proceedings, with costs against the appellee.
disallowing the will is the fact that the deceased was not of sound and
disposing mind when she signed the will, and it reached this
conclusion, not because of any direct evidence on the matter, but EN BANC
simply because the deceased signed the will in a somewhat varied
form. On this point the lower court said: G.R. No. L-13781 January 30, 1960

El Juzgado es de opinion que aunque se admita que las Testate Estate of JOSE J. JAVELLANA, Deceased. CRISTETA
firmas arriba indicadas feuran de Maria Zuñiga Vda. de JIMENEA VDA. DE JAVELLANA, and BENJAMIN
Pando, las mismas revelan que ella no estabe en el pleno de JAVELLANA, petitioners-appellees,
sus facultades mentales cuando la hicieron firmar el vs.
documento, Exhibit C, pues el hecho de que en una sola JOSE JAVELLANA y AZAOLA and JOSE JAVELLANA,
ocasion la repetida Maria Zuñiga Vda. de Pando firmo dos JR., oppositors-appellants.
veces, sin escribir su verdadero nombre, demuestra que ella
no se daba cuenta de sus actos por no hallarse mentalmente
sana. Si esto es asi, no se debe legalizar como testamento y BARRERA, J.:
ultima voluntad de la finada Maria Zuñiga Vda. de Pando el
documento, Exhibit C, porque el Articulo 614 de la Ley 190 y On June 29, 1957, a petition to probate the alleged last will and
el Articulo 12, Reglamentos de los Tribunales, disponen que testament of Jose J. Javellana, who died on May 24 of the same year,
solamente pueden otorgar testamento las personas que al was presented in the Court of First Instance of Rizal by Crsiteta
tiempo de su otorgamiento estaban en el pleno goce de sus Jimenea Vda. de Javellana and Benjamin Javellana, widow and brother
facultades mentales. respectively of the deceased, alleging that the aforesaid Jose J.
Javellana, at the time of his death, a resident of Ssan Juan Rizal, left
The above conclusion is contrary to what the instrumental witnesses porperties with an approximate value of P400,000.00; that he also left
have said on this point. Cornelio Gonzales de Romero stated that she a will which was delivered to the clerk of court pursuant to the Rules
spoke to the deceased before the signing of the will, and judging from of Court; that Oscar Ledesma, therein named executor, had agreed to
the way she spoke she was of the impression that the deceased was of act as such; that the decedent's next of kin were; the wido., Criteta J.
sound mind at the time. To the same effect is the testimony of Vda. de Javellana, his children — Erlinda Javellana, Jose Javellana y
Consuelo B. de Catindig. She said that her impression when the Azaola, and Jose Javellana, Jr. (Pepito), his sister Juanito J. de
deceased signed the will was that she could still talk and read, only Ledesma, and brother Benjamin Javellana, whose respective addresses
that she was weak. In fact she read the will before signing it. These wre given in the petition.
statements had not been contradicted. They give an idea of the mental
had not contradicted. They give an idea of mental condition of the To this petition, Jose Javellana y Azaola and Jose Javellana, Jr.
deceased in the will differ from each other in certain respects, this is (Pepito) filed separate opposiytions, both claiming that the alleged will
only due to her age and state of health rather than to a defective of Jose J. Javellana deposited by peittioners with the clerk of court was
mental condition. They do not reveal a condition of forgery or lack of null and void, the same not having been executed "in accordance with
genuineness. These differences or irregularities are common in the the formalities required by law" and that "the legal requirements
writings of old people and, far from showing lack of genuineness, are necessary for its validit" had not been complied with.
indicative of the age, sickness, or weak condition of the writer. A
comparison of the three disputed signatures in the will readily give this
impression. At the hearing, petitioners introduced as evidence in support of the
petition, a copy of the will; certification of the date and cause of death
of the testator; proof of publication of the petition, once a week for 3
Abbreviated, distorted and illegible, forms, which are consecutive weeks, in a newspaper of general circulation, and thre
sufficiently free and rapid, often actually indicate testimonies of Jose G. Guevarra, Eloisa Villanueva and Jose Yulo, Jr.,
genuineness rather than forgery even though they are very the 3 instrumental witnesses to the will, whi, in sustancer, testified
34
Wills and Succession Case Digests
that sometime in April, 1956, they were asked to witness the execution that she knew the language in which the will was written, in the
of the will of the late Jose. J. Javellana; that on the said occasion, Jose absence of proof to the contrary.4
J. Javellana signed the 4 pages of the will in their presence, and they,
in turn, also signed each and evey page thereof in the presence of the
In the case before us, no such or similar circumstances exist. On the
testator and of one another; and that these acts wetre acknowledge
contrary, there is evidence that the testator is a Visayan although
before notary public Fernando Grey, Jr. on the same occasion.
residing in San Juan, Rizal at the time of his death. The will was
executed in the City of Manila. Undoubtedly, it cannot be said, and
For their part, the oppositor limited their evidence to the presentation there is no evidence, that Spaniards is the language currently used
of two letters in the Visayan dialect allegedly written by the deceased, either in San Juan, Rizal, or Manila. It follows, therefore, that no
the signatures appearing thereon being identified by Jose Javellana, Jr. presumption can rise that the testator knew the Spanish Language.
(Pepito) and Manuel Azaola, as those of the deceased, for the sole
purpose of comparing said signatures woth those appearing in the will.
But petitioner-appellees insist in their brief that the burden is on the
oppositors to allege and prove that the testator did not know the
On December 10, 1957, the court a quo issued an order allowing the Spanish language in the face of the legal presumption that "the law
probate of the will and directing the issuance of letters testamentary to has been obeyed", "that a will executed in the Philippines must be
Oscar Ledesma as executor thereoif, upon the latter's filing a bond in presumed to have been executed in conformity with the laws of the
the sum of P10,000.00. From this order, oppositors appealed to this Philippines".5 and "that things have happened in accordance with the
Court charging the lower court of committing error in allowing ordinary course of nature and the ordinary habits of life", concluding
oprobate of the will, Exhibit C, on 2 grounds: (1) that the 3 sttesting that it woiuld certainly be contrary to the ordinary habits of life for a
witnesses failed to clearly and convincingly estabish the due execution person to execute his will in a language unknown to him. This, we
of the will; and (2) that petitioners failed to prove that the will was believe, is, to use a colloquial term, being the question. If the
written in a language known to the testator. argument of counsel is correct, then every unopposed will may be
probated upon its mere presentation in court, without need of
producing evidence regarding its execution. Counsel's statement is its
The first basis of oppositor's appeal has no merit. It is true that
own refutation.
witnesses, particularly Miss Eloisa Villanueva, apparently found
difficulty recalling who arrived first at the appointed place, or the order
of the witnesses' signing the will, or failed to mention by name the We find, in the record stone indicia, although insufficient to give rise to
persons present at the time of the witnesses was signing the the presumption, that the testator might, in fact, have known the
document. These details, however, are minor and significant and do Spanish language. In oppositor's own Exhibit 3 (a letter admittedly
not enervate their positive testimony that at the execution of the will written by the testator) appear the salutation "Querido Primo" and the
the testator, the 3 witnesses, the notary public and Atty. Vicente complimentary ending "Su primo" which are Spanish terms. Having
Hilado were all together in the private office of the latter; that Jose found that al the formal requisites for the validity of the will have been
Guevarra, Eloisa Villanueva and Jose Yulo, Jr., the instrumental satisfactorily establishment, except the language requirement, we
witnesses, were unanimous in declaring that they actually saw the deem it in the interest of justice to afford the parties a opportunity to
testator sign the will as well as each and every page thereof, and they, present evidence, if they so desire, on this controverted issue.
in turen, affixed their signatures to all of its 4 pages. For the purpose
of determining tjhe due execution of a will, it is not necessary that the
Wherefore, let the records of this case be remanded to the court of
instrumental witnesses should give an accurate and detailed account
origin for furhter proceedings as above indicated, without costs. It is
of the proceeding, such as recalling the order of the signing of the
so ordered.
document by the dsaid wirtneese. It is sufficient that they have seen
or at least were so situated at the moment that they could have seen
each other sign, had they wnated to do so.1 In fact, in the instant SECOND DIVISION
case, at least two witnesses, Yulo and Guevarra, both testified hat the
testator and the 3 witnesses signed in the presence of each and every A.M. No. 2026-CFI December 19, 1981
one of them.

NENITA DE VERA SUROZA, complainant,


With respect to the second ground, there is some merit in appellant's vs.
contention that the language requirement of the law on wills has not JUDGE REYNALDO P. HONRADO of the Court of First Instance
been satisfactorily complied with in this case. Admittedly, there is want of Rizal, Pasig Branch 25 and EVANGELINE S. YUIPCO, Deputy
of expression in the body of the will itself or in its attestation clause Clerk of Court, respondents.
that the testator knew Spanish, the language in which it is written. It is
true that there is no statutory provision requiring this and that proof
thereof may be established by evidence aliunde.2 But here, there is AQUINO, J.:
absolutely no such evidence presented by the petitioners-appellees.
Not even the petition for probate contains any allegation to this effect. Should disciplinary action be taken against respondent judge for
No reference to it whatsoever is made in the appealed order. having admitted to probate a will, which on its face is void because it
is written in English, a language not known to the illiterate testatrix,
In some cases, it is true, this lack of evidence was considered cured by and which is probably aforged will because she and the attesting
presumptioin of knowledge of the language or dialect used in the will, witnesses did not appear before the notary as admitted by the notary
as where the will is executed in a certain province or locality, in the himself?
dialect currently used in such provimnce or locality in which the
testator is a native or resident, the presumption arises that the testator That question arises under the pleadings filed in the testate case and
knew the dialect so used, in the absence of evidence to the contrary; 3 in the certiorari case in the Court of Appeals which reveal the following
or where the will is in Spanish, the fact that the testratrix was a tangled strands of human relationship:
"mestiza española", was married to a Spaniard, made several trips to
Spain, and some of her letters in her own handwriting submitted as
evidence by the oppositor, are in Spanish, give rise to the presumption
35
Wills and Succession Case Digests
Mauro Suroza, a corporal in the 45th Infantry of the U.S. Army transcripts of the stenographic notes taken at the hearing before the
(Philippine Scouts), Fort McKinley, married Marcelina Salvador in 1923 deputy clerk of court are not in the record.
(p. 150, Spec. Proc. No. 7816). They were childless. They reared a boy
named Agapito who used the surname Suroza and who considered
In an order dated March 31, 1975, Judge Honrado appointed Marina
them as his parents as shown in his 1945 marriage contract with
as administratrix. On the following day, April 1, Judge Honrado issued
Nenita de Vera (p. 15, Rollo of CA-G.R. No. 08654-R; p. 148, Rollo of
two orders directing the Merchants Banking Corporation and the Bank
Testate Case showing that Agapito was 5 years old when Mauro
of America to allow Marina to withdraw the sum of P10,000 from the
married Marcelina in 1923).
savings accounts of Marcelina S. Suroza and Marilyn Suroza and
requiring Corazon Castro, the custodian of the passbooks, to deliver
Mauro died in 1942. Marcelina, as a veteran's widow, became a them to Marina.
pensioner of the Federal Government. That explains why on her death
she had accumulated some cash in two banks.
Upon motion of Marina, Judge Honrado issued another order dated
April 11, 1975, instructing a deputy sheriff to eject the occupants of
Agapito and Nenita begot a child named Lilia who became a medical the testatrix's house, among whom was Nenita V. Suroza, and to place
technologist and went abroad. Agapito also became a soldier. He was Marina in possession thereof.
disabled and his wife Nenita was appointed as his guardian in 1953
when he was declared an incompetent in Special Proceeding No. 1807
That order alerted Nenita to the existence of the testamentary
of the Court of First Instance of Rizal, Pasig Branch I (p. 16, Rollo of
proceeding for the settlement of Marcelina's estate. She and the other
CA-G.R. No. 08654-R).
occupants of the decedent's house filed on April 18 in the said
proceeding a motion to set aside the order of April 11 ejecting them.
In that connection, it should be noted that a woman named Arsenia de They alleged that the decedent's son Agapito was the sole heir of the
la Cruz wanted also to be his guardian in another proceeding. Arsenia deceased, that he has a daughter named Lilia, that Nenita was
tried to prove that Nenita was living separately from Agapito and that Agapito's guardian and that Marilyn was not Agapito's daughter nor
she (Nenita) admitted to Marcelina that she was unfaithful to Agapito the decedent's granddaughter (pp. 52-68, Record of testate case).
(pp. 61-63, Record of testate case). Later, they questioned the probate court's jurisdiction to issue the
ejectment order.
Judge Bienvenido A. Tan dismissed the second guardianship
proceeding and confirmed Nenita's appointment as guardian of Agapito In spite of the fact that Judge Honrado was already apprised that
(p. 16, Rollo of CA case). Agapito has been staying in a veteran's persons, other than Marilyn, were claiming Marcelina's estate, he
hospital in San Francisco or Palo Alto, California (p. 87, Record). issued on April 23 an order probating her supposed will wherein
Marilyn was the instituted heiress (pp. 74-77, Record).
On a date not indicated in the record, the spouses Antonio Sy and
Hermogena Talan begot a child named Marilyn Sy, who, when a few On April 24, Nenita filed in the testate case an omnibus petition "to set
days old, was entrusted to Arsenia de la Cruz (apparently a girl friend aside proceedings, admit opposition with counter-petition for
of Agapito) and who was later delivered to Marcelina Salvador Suroza administration and preliminary injunction". Nenita in that motion
who brought her up as a supposed daughter of Agapito and as her reiterated her allegation that Marilyn was a stranger to Marcelina, that
granddaughter (pp. 23-26, Rollo of CA-G.R. No.SP-08654-R). Marilyn the will was not duly executed and attested, that it was procured by
used the surname Suroza. She stayed with Marcelina but was not means of undue influence employed by Marina and Marilyn and that
legally adopted by Agapito. She married Oscar Medrano and is residing the thumbmarks of the testatrix were procured by fraud or trick.
at 7666 J.B. Roxas Street, Makati, apparently a neighbor of Marina
Paje, a resident of 7668 J.B. Roxas Street.
Nenita further alleged that the institution of Marilyn as heir is void
because of the preterition of Agapito and that Marina was not qualified
Marcelina supposedly executed a notarial will in Manila on July 23, to act as executrix (pp. 83-91, Record).
1973, when she was 73 years old. That will which is in English was
thumbmarked by her. She was illiterate. Her letters in English to the
To that motion was attached an affidavit of Zenaida A. Penaojas the
Veterans Administration were also thumbmarked by her (pp. 38-39, CA
housemaid of Marcelina, who swore that the alleged will was
Rollo). In that wig, Marcelina bequeathed all her estate to her
falsified (p. 109, Record).
supposed granddaughter Marilyn.

Not content with her motion to set aside the ejectment order (filed on
Marcelina died on November 15, 1974 at the Veterans Hospital in
April 18) and her omnibus motion to set aside the proceedings (filed
Quezon City. At the time of her death, she was a resident of 7374 San
on April 24), Nenita filed the next day, April 25, an opposition to the
Maximo Street, Olimpia, Makati, Rizal. She owned a 150-square meter
probate of the will and a counter-petition for letters of administration.
lot and house in that place. She acquired the lot in 1966 (p. 134,
In that opposition, Nenita assailed the due execution of the will and
Record of testate case).
stated the names and addresses of Marcelina's intestate heirs, her
nieces and nephews (pp. 113-121, Record). Nenita was not aware of
On January 13, 1975, Marina Paje, alleged to be a laundrywoman of the decree of probate dated April 23, 1975.
Marcelina (P. 97, CA Rollo) and the executrix in her will (the alternate
executrix was Juanita Macaraeg, mother of Oscar, Marilyn's husband),
To that opposition was attached an affidavit of Dominga Salvador
filed with the Court of First Instance of Rizal, Pasig Branch 25, a
Teodocio, Marcelina's niece, who swore that Marcelina never executed
petition for the probate of Marcelina's alleged will. The case was
a win (pp. 124-125, Record).
assigned to Judge Reynaldo P. Honrado.

Marina in her answer to Nenita's motion to set aside the proceedings


As there was no opposition, Judge Honrado commissioned his deputy
admitted that Marilyn was not Marcelina's granddaughter but was the
clerk of court, Evangeline S. Yuipco, to hear the evidence. The
daughter of Agapito and Arsenia de la Cruz and that Agapito was not

36
Wills and Succession Case Digests
Marcelina's sonbut merely an anak-anakan who was not legally July 6, 1976 she asked for a thirty day period within which to vacate
adopted (p. 143, Record). the house of the testatrix.

Judge Honrado in his order of July 17, 1975 dismissed Nenita's Evangeline S. Yuipco in her affidavit said that she never talked with
counter-petition for the issuance of letters of administration because of Nenita and that the latter did not mention Evangeline in her letter
the non-appearance of her counsel at the hearing. She moved for the dated September 11, 1978 to President Marcos.
reconsideration of that order.
Evangeline branded as a lie Nenita's imputation that she (Evangeline)
In a motion dated December 5, 1975, for the consolidation of all prevented Nenita from having access to the record of the testamentary
pending incidents, Nenita V. Suroza reiterated her contention that the proceeding. Evangeline was not the custodian of the record.
alleged will is void because Marcelina did not appear before the notary Evangeline " strongly, vehemently and flatly denied" Nenita's charge
and because it is written in English which is not known to her (pp. that she (Evangeline) said that the sum of ten thousand pesos was
208-209, Record). needed in order that Nenita could get a favorable decision. Evangeline
also denied that she has any knowledge of Nenita's pension from the
Federal Government.
Judge Honrado in his order of June 8, 1976 "denied" the various
incidents "raised" by Nenita (p. 284, Record).
The 1978 complaint against Judge Honorado was brought to attention
of this Court in the Court Administrator's memorandum of September
Instead of appealing from that order and the order probating the wig,
25, 1980. The case was referred to Justice Juan A. Sison of the Court
Nenita "filed a case to annul" the probate proceedings (p. 332,
of Appeals for investigation, report and recommendation. He submitted
Record). That case, Civil Case No. 24276, Suroza vs. Paje and Honrado
a report dated October 7, 1981.
(p. 398, Record), was also assigned to Judge Honrado. He dismissed it
in his order of February 16, 1977 (pp. 398-402, Record).
On December 14, 1978, Nenita filed in the Court of Appeals against
Judge Honrado a petition for certiorari and prohibition wherein she
Judge Honrado in his order dated December 22, 1977, after noting
prayed that the will, the decree of probate and all the proceedings in
that the executrix had delivered the estate to Marilyn, and that the
the probate case be declared void.
estate tax had been paid, closed the testamentary proceeding.

Attached to the petition was the affidavit of Domingo P. Aquino, who


About ten months later, in a verified complaint dated October 12,
notarized the will. He swore that the testatrix and the three attesting
1978, filed in this Court, Nenita charged Judge Honrado with having
witnesses did not appear before him and that he notarized the will
probated the fraudulent will of Marcelina. The complainant reiterated
"just to accommodate a brother lawyer on the condition" that said
her contention that the testatrix was illiterate as shown by the fact
lawyer would bring to the notary the testatrix and the witnesses but
that she affixed her thumbmark to the will and that she did not know
the lawyer never complied with his commitment.
English, the language in which the win was written. (In the decree of
probate Judge Honrado did not make any finding that the will was
written in a language known to the testatrix.) The Court of Appeals dismissed the petition because Nenita's remedy
was an appeal and her failure to do so did not entitle her to resort to
the special civil action of certiorari (Suroza vs. Honrado, CA-G.R. No.
Nenita further alleged that Judge Honrado, in spite of his knowledge
SP-08654, May 24, 1981).
that the testatrix had a son named Agapito (the testatrix's supposed
sole compulsory and legal heir), who was preterited in the will, did not
take into account the consequences of such a preterition. Relying on that decision, Judge Honrado filed on November 17, 1981 a
motion to dismiss the administrative case for having allegedly become
moot and academic.
Nenita disclosed that she talked several times with Judge Honrado and
informed him that the testatrix did not know the executrix Marina Paje,
that the beneficiary's real name is Marilyn Sy and that she was not the We hold that disciplinary action should be taken against respondent
next of kin of the testatrix. judge for his improper disposition of the testate case which might have
resulted in a miscarriage of justice because the decedent's legal heirs
and not the instituted heiress in the void win should have inherited the
Nenita denounced Judge Honrado for having acted corruptly in
decedent's estate.
allowing Marina and her cohorts to withdraw from various banks the
deposits Marcelina.
A judge may be criminally liable or knowingly rendering an unjust
judgment or interlocutory order or rendering a manifestly unjust
She also denounced Evangeline S. Yuipco, the deputy clerk of court,
judgment or interlocutory order by reason of inexcusable negligence or
for not giving her access to the record of the probate case by alleging
ignorance (Arts. 204 to 206, Revised Penal Code).
that it was useless for Nenita to oppose the probate since Judge
Honrado would not change his decision. Nenita also said that
Evangeline insinuated that if she (Nenita) had ten thousand pesos, the Administrative action may be taken against a judge of the court of first
case might be decided in her favor. Evangeline allegedly advised instance for serious misconduct or inefficiency ( Sec. 67, Judiciary
Nenita to desist from claiming the properties of the testatrix because Law). Misconduct implies malice or a wrongful intent, not a mere error
she (Nenita) had no rights thereto and, should she persist, she might of judgment. "For serious misconduct to exist, there must be reliable
lose her pension from the Federal Government. evidence showing that the judicial acts complained of were corrupt or
inspired by an intention to violate the law, or were in persistent
disregard of well-known legal rules" (In re lmpeachment of Horrilleno,
Judge Honrado in his brief comment did not deal specifically with the
43 Phil. 212, 214-215).
allegations of the complaint. He merely pointed to the fact that Nenita
did not appeal from the decree of probate and that in a motion dated

37
Wills and Succession Case Digests
Inefficiency implies negligence, incompetence, ignorance and G.R. No. L-18979 June 30, 1964
carelessness. A judge would be inexcusably negligent if he failed to
observe in the performance of his duties that diligence, prudence and
IN THE MATTER OF THE TESTATE ESTATE OF THE LATE JOSEFA
circumspection which the law requires in the rendition of any public
VILLACORTE.
service (In re Climaco, Adm. Case No. 134-J, Jan. 21, 1974, 55 SCRA
CELSO ICASIANO, petitioner-appellee,
107, 119).
vs.
NATIVIDAD ICASIANO and ENRIQUE ICASIANO, oppositors-
In this case, respondent judge, on perusing the will and noting that it appellants.
was written in English and was thumbmarked by an obviously illiterate
testatrix, could have readily perceived that the will is void.
REYES, J.B.L., J.:

In the opening paragraph of the will, it was stated that English was a
Appeal from an order of the Court of First Instance of Manila admitting
language "understood and known" to the testatrix. But in its
to probate the document and its duplicate, marked as Exhibits "A" and
concluding paragraph, it was stated that the will was read to the
"A-1", as the true last will and testament of Josefa Villacorte,
testatrix "and translated into Filipino language". (p. 16, Record of
deceased, and appointing as executor Celso Icasiano, the person
testate case). That could only mean that the will was written in a
named therein as such.
language not known to the illiterate testatrix and, therefore, it is void
because of the mandatory provision of article 804 of the Civil Code
that every will must be executed in a language or dialect known to the This special proceeding was begun on October 2, 1958 by a petition
testator. Thus, a will written in English, which was not known to the for the allowance and admission to probate of the original, Exhibit "A"
Igorot testator, is void and was disallowed (Acop vs. Piraso, 52 Phil. as the alleged will of Josefa Villacorte, deceased, and for the
660). appointment of petitioner Celso Icasiano as executor thereof.

The hasty preparation of the will is shown in the attestation clause and The court set the proving of the alleged will for November 8, 1958,
notarial acknowledgment where Marcelina Salvador Suroza is and caused notice thereof to be published for three (3) successive
repeatedly referred to as the "testator" instead of "testatrix". weeks, previous to the time appointed, in the newspaper "Manila
chronicle", and also caused personal service of copies thereof upon the
known heirs.
Had respondent judge been careful and observant, he could have
noted not only the anomaly as to the language of the will but also that
there was something wrong in instituting the supposed granddaughter On October 31, 1958, Natividad Icasiano, a daughter of the testatrix,
as sole heiress and giving nothing at all to her supposed father who filed her opposition; and on November 10, 1958, she petitioned to
was still alive. have herself appointed as a special administrator, to which proponent
objected. Hence, on November 18, 1958, the court issued an order
appointing the Philippine Trust Company as special
Furthermore, after the hearing conducted by respondent deputy clerk
administrator.1äwphï1.ñët
of court, respondent judge could have noticed that the notary was not
presented as a witness.
On February 18, 1959, Enrique Icasiano, a son of the testatrix, also
filed a manifestation adopting as his own Natividad's opposition to the
In spite of the absence of an opposition, respondent judge should
probate of the alleged will.
have personally conducted the hearing on the probate of the will so
that he could have ascertained whether the will was validly executed.
On March 19, 1959, the petitioner proponent commenced the
introduction of his evidence; but on June 1, 1959, he filed a motion for
Under the circumstances, we find his negligence and dereliction of
the admission of an amended and supplemental petition, alleging that
duty to be inexcusable.
the decedent left a will executed in duplicate with all the legal
requirements, and that he was, on that date, submitting the signed
WHEREFORE, for inefficiency in handling the testate case of Marcelina duplicate (Exhibit "A-1"), which he allegedly found only on or about
S. Suroza, a fine equivalent to his salary for one month is imposed on May 26, 1959. On June 17, 1959, oppositors Natividad Icasiano de
respondent judge (his compulsory retirement falls on December 25, Gomez and Enrique Icasiano filed their joint opposition to the
1981). admission of the amended and supplemental petition, but by order of
July 20, 1959, the court admitted said petition, and on July 30, 1959,
oppositor Natividad Icasiano filed her amended opposition. Thereafter,
The case against respondent Yuipco has become moot and academic
the parties presented their respective evidence, and after several
because she is no longer employed in the judiciary. Since September
hearings the court issued the order admitting the will and its duplicate
1, 1980 she has been assistant city fiscal of Surigao City. She is
to probate. From this order, the oppositors appealed directly to this
beyond this Court's disciplinary jurisdiction (Peralta vs. Firm Adm.
Court, the amount involved being over P200,000.00, on the ground
Matter No. 2044-CFI November 21, 1980, 101 SCRA 225).
that the same is contrary to law and the evidence.

SO ORDERED.
The evidence presented for the petitioner is to the effect that Josefa
Villacorte died in the City of Manila on September 12, 1958; that on
ARTICLE 805 June 2, 1956, the late Josefa Villacorte executed a last will and
testament in duplicate at the house of her daughter Mrs. Felisa
Abangan vs. Abangan – go to Article 804 Icasiano at Pedro Guevara Street, Manila, published before and
attested by three instrumental witnesses, namely: attorneys Justo P.
Torres, Jr. and Jose V. Natividad, and Mr. Vinicio B. Diy; that the will
EN BANC was acknowledged by the testatrix and by the said three instrumental
witnesses on the same date before attorney Jose Oyengco Ong,
38
Wills and Succession Case Digests
Notary Public in and for the City of Manila; and that the will was acknowledged the will; and Atty. Samson, who actually prepared the
actually prepared by attorney Fermin Samson, who was also present documents; that the will and its duplicate were executed in Tagalog, a
during the execution and signing of the decedent's last will and language known to and spoken by both the testator and the witnesses,
testament, together with former Governor Emilio Rustia of Bulacan, and read to and by the testatrix and Atty. Fermin Samson, together
Judge Ramon Icasiano and a little girl. Of the said three instrumental before they were actually signed; that the attestation clause is also in
witnesses to the execution of the decedent's last will and testament, a language known to and spoken by the testatrix and the witnesses.
attorneys Torres and Natividad were in the Philippines at the time of The opinion of expert for oppositors, Mr. Felipe Logan, that the
the hearing, and both testified as to the due execution and authenticity signatures of the testatrix appearing in the duplicate original were not
of the said will. So did the Notary Public before whom the will was written by the same had which wrote the signatures in the original will
acknowledged by the testatrix and attesting witnesses, and also leaves us unconvinced, not merely because it is directly contradicted
attorneys Fermin Samson, who actually prepared the document. The by expert Martin Ramos for the proponents, but principally because of
latter also testified upon cross examination that he prepared one the paucity of the standards used by him to support the conclusion
original and two copies of Josefa Villacorte last will and testament at that the differences between the standard and questioned signatures
his house in Baliuag, Bulacan, but he brought only one original and are beyond the writer's range of normal scriptural variation. The expert
one signed copy to Manila, retaining one unsigned copy in Bulacan. has, in fact, used as standards only three other signatures of the
testatrix besides those affixed to the original of the testament (Exh.
A); and we feel that with so few standards the expert's opinion and
The records show that the original of the will, which was surrendered
the signatures in the duplicate could not be those of the testatrix
simultaneously with the filing of the petition and marked as Exhibit "A"
becomes extremely hazardous. This is particularly so since the
consists of five pages, and while signed at the end and in every page,
comparison charts Nos. 3 and 4 fail to show convincingly that the are
it does not contain the signature of one of the attesting witnesses,
radical differences that would justify the charge of forgery, taking into
Atty. Jose V. Natividad, on page three (3) thereof; but the duplicate
account the advanced age of the testatrix, the evident variability of her
copy attached to the amended and supplemental petition and marked
signatures, and the effect of writing fatigue, the duplicate being signed
as Exhibit "A-1" is signed by the testatrix and her three attesting
right the original. These, factors were not discussed by the expert.
witnesses in each and every page.

Similarly, the alleged slight variance in blueness of the ink in the


The testimony presented by the proponents of the will tends to show
admitted and questioned signatures does not appear reliable,
that the original of the will and its duplicate were subscribed at the
considering the standard and challenged writings were affixed to
end and on the left margin of each and every page thereof by the
different kinds of paper, with different surfaces and reflecting power.
testatrix herself and attested and subscribed by the three mentioned
On the whole, therefore, we do not find the testimony of the
witnesses in the testatrix's presence and in that of one another as
oppositor's expert sufficient to overcome that of the notary and the
witnesses (except for the missing signature of attorney Natividad on
two instrumental witnesses, Torres and Natividad (Dr. Diy being in the
page three (3) of the original); that pages of the original and duplicate
United States during the trial, did not testify).
of said will were duly numbered; that the attestation clause thereof
contains all the facts required by law to be recited therein and is
signed by the aforesaid attesting witnesses; that the will is written in Nor do we find adequate evidence of fraud or undue influence. The
the language known to and spoken by the testatrix that the attestation fact that some heirs are more favored than others is proof of neither
clause is in a language also known to and spoken by the witnesses; (see In re Butalid, 10 Phil. 27; Bugnao vs. Ubag, 14 Phil. 163; Pecson
that the will was executed on one single occasion in duplicate copies; vs. Coronal, 45 Phil. 216). Diversity of apportionment is the usual
and that both the original and the duplicate copies were duly reason for making a testament; otherwise, the decedent might as well
acknowledged before Notary Public Jose Oyengco of Manila on the die intestate. The testamentary dispositions that the heirs should not
same date June 2, 1956. inquire into other property and that they should respect the
distribution made in the will, under penalty of forfeiture of their shares
in the free part do not suffice to prove fraud or undue influence. They
Witness Natividad who testified on his failure to sign page three (3) of
appear motivated by the desire to prevent prolonged litigation which,
the original, admits that he may have lifted two pages instead of one
as shown by ordinary experience, often results in a sizeable portion of
when he signed the same, but affirmed that page three (3) was signed
the estate being diverted into the hands of non-heirs and speculators.
in his presence.
Whether these clauses are valid or not is a matter to be litigated on
another occassion. It is also well to note that, as remarked by the
Oppositors-appellants in turn introduced expert testimony to the effect Court of Appeals in Sideco vs. Sideco, 45 Off. Gaz. 168, fraud and
that the signatures of the testatrix in the duplicate (Exhibit "A-1") are undue influence are mutually repugnant and exclude each other; their
not genuine nor were they written or affixed on the same occasion as joining as grounds for opposing probate shows absence of definite
the original, and further aver that granting that the documents were evidence against the validity of the will.
genuine, they were executed through mistake and with undue
influence and pressure because the testatrix was deceived into
On the question of law, we hold that the inadvertent failure of one
adopting as her last will and testament the wishes of those who will
witness to affix his signature to one page of a testament, due to the
stand to benefit from the provisions of the will, as may be inferred
simultaneous lifting of two pages in the course of signing, is not per se
from the facts and circumstances surrounding the execution of the will
sufficient to justify denial of probate. Impossibility of substitution of
and the provisions and dispositions thereof, whereby proponents-
this page is assured not only the fact that the testatrix and two other
appellees stand to profit from properties held by them as attorneys-in-
witnesses did sign the defective page, but also by its bearing the
fact of the deceased and not enumerated or mentioned therein, while
coincident imprint of the seal of the notary public before whom the
oppositors-appellants are enjoined not to look for other properties not
testament was ratified by testatrix and all three witnesses. The law
mentioned in the will, and not to oppose the probate of it, on penalty
should not be so strictly and literally interpreted as to penalize the
of forfeiting their share in the portion of free disposal.
testatrix on account of the inadvertence of a single witness over whose
conduct she had no control, where the purpose of the law to
We have examined the record and are satisfied, as the trial court was, guarantee the identity of the testament and its component pages is
that the testatrix signed both original and duplicate copies (Exhibits sufficiently attained, no intentional or deliberate deviation existed, and
"A" and "A-1", respectively) of the will spontaneously, on the same in the evidence on record attests to the full observance of the statutory
the presence of the three attesting witnesses, the notary public who requisites. Otherwise, as stated in Vda. de Gil. vs. Murciano, 49 Off.
39
Wills and Succession Case Digests
Gaz. 1459, at 1479 (decision on reconsideration) "witnesses may and testament of the same person the probate of whose will is
sabotage the will by muddling or bungling it or the attestation clause". involved in this suit.

That the failure of witness Natividad to sign page three (3) was This appeal arises out of an application on the part of Pedro Barut to
entirely through pure oversight is shown by his own testimony as well probate the last will and testament of Maria Salomon, deceased. It is
as by the duplicate copy of the will, which bears a complete set of alleged in the petition of the probate that Maria Salomon died on the
signatures in every page. The text of the attestation clause and the 7th day of November, 1908, in the pueblo of Sinait, Ilocos Sur, leaving
acknowledgment before the Notary Public likewise evidence that no a last will and testament bearing date March 2, 1907. Severo Agayan,
one was aware of the defect at the time. Timotea Inoselda, Catalino Ragasa, and A. M. Jimenez are alleged to
have been witnesses to the execution thereof. By the terms of said will
Pedro Barut received the larger part of decedent's property.
This would not be the first time that this Court departs from a strict
and literal application of the statutory requirements, where the
purposes of the law are otherwise satisfied. Thus, despite the literal The original will appears on page 3 of the record and is in the Ilocano
tenor of the law, this Court has held that a testament, with the only dialect. Its translation into Spanish appears at page 11. After disposing
page signed at its foot by testator and witnesses, but not in the left of her property the testatrix revoked all former wills by her made. She
margin, could nevertheless be probated (Abangan vs. Abangan, 41 also stated in said will that being unable to read or write, the same
Phil. 476); and that despite the requirement for the correlative had been read to her by Ciriaco Concepcion and Timotea Inoselda and
lettering of the pages of a will, the failure to make the first page either that she had instructed Severo Agayan to sign her name to it as
by letters or numbers is not a fatal defect (Lopez vs. Liboro, 81 Phil. testatrix.
429). These precedents exemplify the Court's policy to require
satisfaction of the legal requirements in order to guard against fraud
The probate of the will was contested and opposed by a number of the
and bid faith but without undue or unnecessary curtailment of the
relatives of the deceased on various grounds, among them that a later
testamentary privilege.
will had been executed by the deceased. The will referred to as being
a later will is the one involved in case No. 6284 already referred to.
The appellants also argue that since the original of the will is in Proceeding for the probate of this later will were pending at the time.
existence and available, the duplicate (Exh. A-1) is not entitled to The evidence of the proponents and of the opponents was taken by
probate. Since they opposed probate of original because it lacked one the court in both cases for the purpose of considering them together.
signature in its third page, it is easily discerned that oppositors-
appellants run here into a dilemma; if the original is defective and
In the case before us the learned probate court found that the will was
invalid, then in law there is no other will but the duly signed carbon
not entitled to probate upon the sole ground that the handwriting of
duplicate (Exh. A-1), and the same is probatable. If the original is valid
the person who it is alleged signed the name of the testatrix to the will
and can be probated, then the objection to the signed duplicate need
for and on her behalf looked more like the handwriting of one of the
not be considered, being superfluous and irrelevant. At any rate, said
other witnesses to the will than that of the person whose handwriting
duplicate, Exhibit A-1, serves to prove that the omission of one
it was alleged to be. We do not believe that the mere dissimilarity in
signature in the third page of the original testament was inadvertent
writing thus mentioned by the court is sufficient to overcome the
and not intentional.
uncontradicted testimony of all the witnesses to the will that the
signature of the testatrix was written by Severo Agayan at her request
That the carbon duplicate, Exhibit A-1, was produced and admitted and in her presence and in the presence of all the witnesses to the
without a new publication does not affect the jurisdiction of the will. It is immaterial who writes the name of the testatrix provided it is
probate court, already conferred by the original publication of the written at her request and in her presence and in the presence of all
petition for probate. The amended petition did not substantially alter the witnesses to the execution of the will.
the one first filed, but merely supplemented it by disclosing the
existence of the duplicate, and no showing is made that new interests
The court seems , by inference at least, to have had in mind that
were involved (the contents of Exhibit A and A-1 are admittedly
under the law relating to the execution of a will it is necessary that the
identical); and appellants were duly notified of the proposed
person who signs the name of the testatrix must afterwards sign his
amendment. It is nowhere proved or claimed that the amendment
own name; and that, in view of the fact that, in the case at bar, the
deprived the appellants of any substantial right, and we see no error in
name signed below that of the testatrix as the person who signed her
admitting the amended petition.
name, being, from its appearance, not the same handwriting as that
constituting the name of the testatrix, the will is accordingly invalid,
IN VIEW OF THE FOREGOING, the decision appealed from is affirmed, such fact indicating that the person who signed the name of the
with costs against appellants. testatrix failed to sign his own. We do not believe that this contention
can be sustained. Section 618 of the Code of Civil Procedure reads as
follows:
EN BANC

No will, except as provided in the preceding section, shall be


G.R. No. L-6285 February 15, 1912
valid to pass any estate, real or personal, nor charge or
effect the same, unless it be in writing and signed by the
PEDRO BARUT, petitioner-appellant, testator, or by the testator's name written by some other
vs. person in his presence, and by his expenses direction, and
FAUSTINO CABACUNGAN, ET AL., opponents-appellees. attested and subscribed by three or more credible witnesses
in the presence of the testator and of each. . . .
MORELAND, J.:
This is the important part of the section under the terms of which the
This case is closely connected with the case of Faustino Cabacungan court holds that the person who signs the name of the testator for him
vs. Pedro Barut and another, No. 6284,1just decided by this court, must also sign his own name The remainder of the section reads:
wherein there was an application for the probate of an alleged last will
40
Wills and Succession Case Digests
The attestation shall state the fact that the testator signed Where a testator does not know, or is unable for any reason,
the will, or caused it to be signed by some other person, at to sign the will himself, it shall be signed in the following
his express direction, in the presence of three witnesses, manner: "John Doe, by the testator, Richard Roe;" or in this
and that they attested and subscribed it in his presence and form: "By the testator. John Doe, Richard Roe." All this must
in the presence of each other. But the absence of such form be written by the witness signing at the request of the
of attestation shall not render the will invalid if it is proven testator.
that the will was in fact signed and attested as in this section
provided.
The only question for decision in that case, as we have before stated,
was presented by the fact that the person who was authorized to sign
From these provisions it is entirely clear that, with respect to the name of the testator to the will actually failed to sign such name
the validity of the will, it is unimportant whether the person who writes but instead signedhis own thereto. The decision in that case related
the name of the testatrix signs his own or not. The important thing is only to that question.
that it clearly appears that the name of the testatrix was signed at her
express direction in the presence of three witnesses and that they
Aside from the presentation of an alleged subsequent will the
attested and subscribed it in her presence and in the presence of each
contestants in this case have set forth no reason whatever why the will
other. That is all the statute requires. It may be wise as a practical
involved in the present litigation should not be probated. The due and
matter that the one who signs the testator's name signs also his own;
legal execution of the will by the testatrix is clearly established by the
but that it is not essential to the validity of the will. Whether one
proofs in this case. Upon the facts, therefore, the will must be
parson or another signed the name of the testatrix in this case is
probated. As to the defense of a subsequent will, that is resolved in
absolutely unimportant so far as the validity of her will is concerned.
case No. 6284 of which we have already spoken. We there held that
The plain wording of the statute shows that the requirement laid down
said later will not the will of the deceased.
by the trial court, if it did lay down, is absolutely unnecessary under
the law; and the reasons underlying the provisions of the statute
relating to the execution of wills do not in any sense require such a The judgment of the probate court must be and is hereby reversed
provision. From the standpoint of language it is an impossibility to and that court is directed to enter an order in the usual form probating
draw from the words of the law the inference that the persons who the will involved in this litigation and to proceed with such probate in
signs the name of the testator must sign his own name also. The law accordance with law.
requires only three witnesses to a will, not four.
EN BANC
Nor is such requirement found in any other branch of the law. The
name of a person who is unable to write may be signed by another by G.R. No. L-20475 March 19, 1924
express direction to any instrument known to the law. There is no
necessity whatever, so far as the validity of the instrument is
concerned, for the person who writes the name of the principal in the In re will of TAN DIUCO, deceased. MAMERTA BASE, petitioner-
document to sign his own name also. As a matter of policy it may be appellant.
wise that he do so inasmuch as it would give such intimation as would
enable a person proving the document to demonstrate more readily ARAULLO, C.J.:
the execution by the principal. But as a matter of essential validity of
the document, it is unnecessary. The main thing to be established in
the execution of the will is the signature of the testator. If that On March 3, 1921, Mamerta Base instituted this proceeding in the
signature is proved, whether it be written by himself or by another at Court of First Instance of Leyte for the probate of the will, Exhibit A,
his request, it is none the less valid, and the fact of such signature can executed, according to her, by the Chinaman Tan Diuco, a resident of
be proved as perfectly and as completely when the person signing for the municipality of Malitbog of said province, who died on December 8,
the principal omits to sign his own name as it can when he actually 1920. That court denied the probate of the will on November 2, 1922,
signs. To hold a will invalid for the lack of the signature of the person and the petitioner brought the case on appeal to this court, alleging
signing the name of the principal is, in the particular case, a complete that the lower court erred in holding that said will was not signed by
abrogation of the law of wills, as it rejects and destroys a will which three instrumental witnesses and in not allowing it to probate.
the statute expressly declares is valid.
After a hearing on the petition, the Court of First Instance entered the
There have been cited three cases which it is alleged are in opposition order appealed from, in which it is found that said will was executed
to the doctrine which we have herein laid down. They are Ex with all the solemnities prescribed by Act No. 2645, except that it was
parte Santiago (4 Phil. Rep., 692), Ex parte Arcenas (4 Phil. Rep., not signed by three instrumental witnesses beside the signature of the
700), and Guison vs.Concepcion (5 Phil. Rep., 551). Not one of these testator and before the attestation clause, and this fact is the ground
cases is in point. The headnote in the case last above stated gives an upon which the petition was denied.
indication of what all of cases are and the question involved in each
one of them. It says: The document in question, Exhibit A, appears to have been signed by
Simplicio Sala by order of the testator, whose name is before the said
The testatrix was not able to sign it for her. Instead of signature, by reason of the latter's incapacity on account of his
writing her name he wrote his own upon the will. Held, That weakness and the trembling of his hand, the testator also stating that
the will was not duly executed. he directed said Simplicio Sala to sign it in his name and in the
presence of three witnesses who also signed with him at the bottom of
said document, and on the left margin of each of its three pages
All of the above cases are precisely of this character. Every one of correlatively numbered in letters by Sala in the name of the testator
them was a case in which the person who signed the will for the Tan Diuco and by the witnesses therein mentioned, named Pablo
testator wrote his own name to the will instead of writing that of the Maturan, Ladislao Fenomeno, and Enrique Peñaredondo. After the
testator, so that the testator's name nowhere appeared attached to signature of the testator, Tan Diuco by Simplicio Sala, the following
the will as the one who executed it. The case of Ex parte Arcenas paragraph appears:
contains the following paragraph:
41
Wills and Succession Case Digests
We, the undersigned witnesses to the forgoing will, do margin of each page of the document presented by the testator to
hereby state that the testator signed this will and each of its them as his will, must be the ones who should sign the attestation
sheets in the presence of all and each of us, and we and clause, inasmuch as they alone can certify the facts to be stated in
each of us likewise did sign this will and all of its sheets in said clause, for having taken a direct part therein, as they saw the
the presence of the testator and each of us, witnesses. testator sign the will, or the person requested by him to sign all the
sheets of the will, that is, the document constituting his last will and
testament, and affirm that it was signed under his express direction in
"TAN DIUCO
the presence of said witnesses and that all the sheets thereof had also
By "SIMPLICIO SALA
been signed by them in the presence of said testator and of each of
"LADISLAO FENOMENO
them, as stated in the attestation clause of the will of the deceased
"PABLO MATURAN
Tan Diuco, with the other details appropriate in said clause.
"ENRIQUE PEÑAREDONDO"

Besides, as may be seen, the said three witnesses who signed the
Section 618 of the Code of Civil Procedure, as amended by Act No.
attestation clause, did so also on the left margin and beside the
2645, provides, indeed, among the necessary requirements before a
signature of the testator or of Simplicio Sala who signed by order of
will can be probated, that it be attested and signed by three or more
the latter, and if account is taken of the fact that these witnesses are
credible witnesses in the presence of the testator and of each other.
"instrumental" witnesses, as above demonstrated, and they have made
And said section, as amended, further provides as follows:
reference to their own signatures, as well as that of the testator and of
the person who signed by the latter's order below the attestation
* * * The testator or the person requested by him to write clause, it is evident that in the instant case, it is merely a matter of
his name and the instrumental witnesses of the will, shall technicality devoid of any importance as to the probate of the will that
also sign, as aforesaid, each and every page thereof, on the said witnesses are called instrumental witnesses, as if they were
left margin, and said pages shall be numbered correlatively different from those who have to sign the attestation clause, for all of
in letters placed on the upper part of each sheet. The them are but the same witnesses; and, as this court held in the case of
attestation shall state the number of sheets or pages used, Abangan vs. Abangan (40 Phil., 476), "The object of the solemnities
upon which the will is written, and that fact that the testator surrounding the execution of wills is to close the door against bad faith
signed the will and every page thereof, or caused some and fraud, to avoid substitution of wills and testaments and to
other person to write his name, under his express direction, guarantee their truth and authenticity. Therefore the laws on this
in the presence of three witnesses, and the latter witnessed subject should be interpreted in such a way as to attain these
and signed the will and all pages thereof in the presence of primordial ends. But, on the other hand, also one must not lose sight
the testator and of each other. of the fact that it is not the object of the law to restrain and curtail the
exercise of the right to make a will. So when a interpretation already
Instrumental witness, as defined by Escriche in his Diccionario given assures such ends, any other interpretation whatsoever, that
Razonado de Legislacion y Jurisprudencia, volume 4, page 1115, is one adds nothing but demands more requisites entirely unnecessary,
who takes part in the execution of an instrument or writing. useless and frustative of the testator's last will, must be disregarded;"
which doctrine must be applied in this case, in view of the facts herein
mentioned and what has been above demonstrated.
At present and under the laws now in force, particularly Act No. 2645
amendatory to said section 618 of the Code of Civil Procedure, when a
will is to be executed, the testator draws or writes it personally or For all of the foregoing, the order appealed from is reversed, and the
through another person and signs it also personally, or if he is document, Exhibit A, presented by the proponent as the last will and
physically incapacitated, as in the instant case, through another person testament of the deceased Tan Diuco is admitted to probate, without
who may or may not be the one who prepared or wrote the will, that special finding as to costs of both instances. So ordered.
is, the document constituting the testator's last will and testament.
The will having thus been prepared and before it is signed by the EN BANC
testator or the person acting in his stead, or the one directed by him to
sign it in his name, in which case the name of the testator is written
G.R. No. L-9150 March 31, 1915
before that of the signer, as above stated, in order that said document
may have the character of a valid will, the testator gathers three or
more credible witnesses and tells them that the contents of said MARIANO LEAÑO, petitioner-appellant,
document is his will, without informing them of its contents, and then vs.
the testator, or the person directed by him to do so, signs it in the ARCADIO LEAÑO, objector-appellee.
presence of the testator and of each other, and the testator or the
person acting in his stead, as well as the three witnesses sign on the
CARSON, J.:
left margin of each page or sheet, which must be numbered
correlatively in letters on the upper part of the page. These witnesses
are the witnesses, referred to in the aforesaid law as instrumental The evidence of record satisfactorily discloses that Cristina Valdes,
witnesses, for the simple reason that they took part in the execution of deceased, placed her costs against her name, attached by some other
an instrument or document known as will, their participation being person to the instrument offered for probate which purports to be her
limited to the acts aforementioned. last will and testament, in the presence of three witnesses whose
names are attached to the attesting clause, and that they attested and
subscribed the instrument in her presence and in the presence of each
In dealing with attestation, said section 618 of the Code of Civil
other.
Procedure, as amended by Act No. 2645, does not say that said
witnesses must be different from those who signed the attestation
clause, for in the first part of said section, after speaking of the We are of the opinion that the placing of the cross opposite her name
signature of the testator or the person signing in his place, it at the construction of the instrument was a sufficient compliance with
adds, "and attested and subscribed by three or more credible the requirements of section 618 of the Code of Civil Procedure, which
witnesses in the presence of the testator and of each other," from prescribes that except where wills are signed by some other person
which it clearly follows that the same witnesses who signed on the left than the testator in the manner and from herein indicated, a valid will
42
Wills and Succession Case Digests
must be signed by the testator. The right of a testator to sign his will the end of the will by Atty. Florentino Javier at the express request of
by mark, executed animo testandihas been uniformly sustained by the the testator in the presence of the testator and each and every one of
courts of last resort of the United States in construing statutory the witnesses; (2) to certify that after the signing of the name of the
provisions prescribing the mode of execution of wills in language testator by Atty. Javier at the former's request said testator has written
identical with, or substantially similar to that found in section 618 of a cross at the end of his name and on the left margin of the three
our code, which was taken from section 2349 of the Code of Vermont. pages of which the will consists and at the end thereof; (3) to certify
(Page on Wills, par. 173, and the cases there cited in support of the that the three witnesses signed the will in all the pages thereon in the
doctrine just announced.) presence of the testator and of each other.

The trial judge was of contrary opinion, and declined to admit the In our opinion, the attestation clause is fatally defective for failing to
instrument to probate as the last will and testament of the decedent. state that Antero Mercado caused Atty. Florentino Javier to write the
We are of opinion, however, that the evidence of record satisfactorily testator's name under his express direction, as required by section 618
establishes the execution of that instrument as and for her last will and of the Code of Civil Procedure. The herein petitioner (who is appealing
testament in the manner and form prescribed by law. by way of certiorari from the decision of the Court of Appeals) argues,
however, that there is no need for such recital because the cross
written by the testator after his name is a sufficient signature and the
The judgment entered in the court below should therefore be
signature of Atty. Florentino Javier is a surplusage. Petitioner's theory
reversed, without costs in this instance, and the record remanded to
is that the cross is as much a signature as a thumbmark, the latter
the court below, where judgment will be entered admitting the
having been held sufficient by this Court in the cases of De
instrument in question to probate in accordance with the prayer of the
Gala vs. Gonzales and Ona, 53 Phil., 104; Dolar vs. Diancin, 55 Phil.,
petitioner. So ordered.
479; Payad vs. Tolentino, 62 Phil., 848; Neyra vs. Neyra, 76 Phil., 296
and Lopez vs. Liboro, 81 Phil., 429.
EN BANC
It is not here pretended that the cross appearing on the will is the
G.R. No. L-4067 November 29, 1951 usual signature of Antero Mercado or even one of the ways by which
he signed his name. After mature reflection, we are not prepared to
In the Matter of the will of ANTERO MERCADO, deceased. liken the mere sign of the cross to a thumbmark, and the reason is
ROSARIO GARCIA, petitioner, obvious. The cross cannot and does not have the trustworthiness of a
vs. thumbmark.
JULIANA LACUESTA, ET AL., respondents.
What has been said makes it unnecessary for us to determine there is
PARAS, C.J.: a sufficient recital in the attestation clause as to the signing of the will
by the testator in the presence of the witnesses, and by the latter in
the presence of the testator and of each other.
This is an appeal from a decision of the Court of Appeals disallowing
the will of Antero Mercado dated January 3, 1943. The will is written in
the Ilocano dialect and contains the following attestation clause: Wherefore, the appealed decision is hereby affirmed, with against the
petitioner. So ordered.

We, the undersigned, by these presents to declare that the


foregoing testament of Antero Mercado was signed by EN BANC
himself and also by us below his name and of this
attestation clause and that of the left margin of the three G.R. No. L-15153 August 31, 1960
pages thereof. Page three the continuation of this attestation
clause; this will is written in Ilocano dialect which is spoken
In the Matter of the summary settlement of the Estate of the
and understood by the testator, and it bears the
deceased
corresponding number in letter which compose of three
ANACLETA ABELLANA. LUCIO BALONAN, petitioner-appellee,
pages and all them were signed in the presence of the
vs.
testator and witnesses, and the witnesses in the presence of
EUSEBIA ABELLANA, et al., oppositors-appellants.
the testator and all and each and every one of us witnesses.

LABARADOR, J.:
In testimony, whereof, we sign this statement, this the third
day of January, one thousand nine hundred forty three,
(1943) A.D. Appeal from a decision of the Court of First Instance of Zamboanga
City admitting to probate the will of one Anacleta Abellana. The case
was originally appealed to the Court of Appeals where the following
Sgd.) NUMERIANO EVANGELISTA (Sgd.) "ROSENDA CORTES assignment of error is made:

Sgd.) BIBIANA ILLEGIBLE The appellants respectfully submit that the Trial Court erred
in holding that the supposed testament, Exh. "A", was
signed in accordance with law; and in admitting the will to
The will appears to have been signed by Atty. Florentino Javier who probate.
wrote the name of Antero Mercado, followed below by "A reugo del
testator" and the name of Florentino Javier. Antero Mercado is alleged
In view of the fact that the appeal involves a question of law the said
to have written a cross immediately after his name. The Court of
court has certified the case to us.
Appeals, reversing the judgement of the Court of First Instance of
Ilocos Norte, ruled that the attestation clause failed (1) to certify that
the will was signed on all the left margins of the three pages and at The facts as found by the trial court are as follows:
43
Wills and Succession Case Digests
It appears on record that the last Will and Testament section 618 above referred to, but it is necessary that the
(Exhibit "A"), which is sought to be probated, is written in testator's name be written by the person signing in his stead
the Spanish language and consists of two (2) typewritten in the place where he could have signed if he knew how or
pages (pages 4 and 5 of the record) double space. The first was able to do so, and this in the testator's presence and by
page is signed by Juan Bello and under his name appears his express direction; so that a will signed in a manner
typewritten "Por la testadora Anacleta Abellana, residence different than that prescribed by law shall not be valid and
Certificate A-1167629, Enero 20, 1951, Ciudad de will not be allowed to be probated.
Zamboanga', and on the second page appears the signature
of three (3) instrumental witnesses Blas Sebastian, Faustino
Where a testator does not know how, or is unable for any
Macaso and Rafael Ignacio, at the bottom of which appears
reason, to sign the will himself, it shall be signed in the
the signature of T. de los Santos and below his signature is
following manner:
his official designation as the notary public who notarized
the said testament. On the first page on the left margin of
the said instrument also appear the signatures of the John Doe by the testator, Richard Doe; or in this form: "By
instrumental witnesses. On the second page, which is the the testator, John Doe, Richard Doe." All this must be
last page of said last Will and Testament, also appears the written by the witness signing at the request of the testator.
signature of the three (3) instrumental witnesses and on
that second page on the left margin appears the signature of Therefore, under the law now in force, the witness Naval A.
Juan Bello under whose name appears handwritten the Vidal should have written at the bottom of the will the full
following phrase, "Por la Testadora Anacleta Abellana'. The name of the testator and his own name in one forms given
will is duly acknowledged before Notary Public Attorney above. He did not do so, however, and this is failure to
Timoteo de los Santos. (Emphasis supplied) comply with the law is a substantial defect which affects the
validity of the will and precludes its allowance,
The appeal squarely presents the following issue: Does the signature notwithstanding the fact that no one appeared to oppose it.
of Dr. Juan A. Abello above the typewritten statement "Por la
Testadora Anacleta Abellana . . ., Ciudad de Zamboanga," comply with The same ruling was laid down in the case of Cuison vs. Concepcion, 5
the requirements of law prescribing the manner in which a will shall be Phil., 552. In the case of Barut vs. Cabacungan, 21 Phil., 461, we held
executed? that the important thing is that it clearly appears that the name of the
testatrix was signed at her express direction; it is unimportant whether
The present law, Article 805 of the Civil Code, in part provides as the person who writes the name of the testatrix signs his own or not.
follows: Cases of the same import areas follows: (Ex Parte Juan Ondevilla, 13
Phil., 479, Caluya vs.Domingo, 27 Phil., 330; Garcia vs. Lacuesta, 90
Phil., 489).
Every will, other than a holographic will, must
be subscribed at the end thereof by the testator himself
or by the testator's name written by some other person in In the case at bar the name of the testatrix, Anacleta Abellana, does
his presence, and by his express direction, and attested and not appear written under the will by said Abellana herself, or by Dr.
subscribed by three or more credible witness in the presence Juan Abello. There is, therefore, a failure to comply with the express
of the testator and of one another. (Emphasis supplied.) requirement in the law that the testator must himself sign the will, or
that his name be affixed thereto by some other person in his presence
and by his express direction.
The clause "must be subscribed at the end thereof by the testator
himself or by the testator's name written by some other person in his
presence and by his express direction," is practically the same as the It appearing that the above provision of the law has not been complied
provisions of Section 618 of the Code of Civil Procedure (Act No. 190) with, we are constrained to declare that the said will of the deceased
which reads as follows: Anacleta Abellana may not be admitted to probate.

No will, except as provided in the preceding section shall be WHEREFORE, the decision appealed from is hereby set aside and the
valid to pass any estate, real or personal, nor charge or petition for the probate of the will denied. With costs against
affect the same, unless it be in writing and signed by the petitioner.
testator, or by the testator's name written by some other
person in his presence, and by his express direction, and EN BANC
attested and subscribed by three or more credible witnesses
in the presence of the testator and of each other. . . .
(Emphasis supplied). G.R. No. L-3907 March 12, 1908

Note that the old law as well as the new require that the testator ROMAN ABAYA, petitioner-appellant,
himself sign the will, or if he cannot do so, the testator's name must vs.
be written by some other person in his presence and by his express DONATA ZALAMERO, respondent-appellee.
direction. Applying this provision this Court said in the case of Ex Parte
Pedro Arcenas, et al., Phil., 700: TORRES, J.:

It will be noticed from the above-quoted section 618 of the On the 6th of August, Roman Abaya filed a petition with the Court of
Code of Civil Procedure that where the testator does not First Instance of La Laguna, for the allowance of the will executed by
know how, or is unable, to sign, it will not be sufficient that Juan Zalamero, a resident of Pagsanhan, in said province, on the 29th
one of the attesting witnesses signs the will at the testator's of October, 1905, and produced in court the said will, which was
request, the notary certifying thereto as provided in Article written in Tagalog dialect. Donata Zalamero opposed the petition,
695 of the Civil Code, which, in this respect, was modified by alleging that the will had been executed under pressure and unlawful
44
Wills and Succession Case Digests
and improper influence on the part of those who were to benefit testator, who afterwards placed the cross between them, stating that
thereby, and that it had not been executed and signed in accordance it was his statement, all of which was written immediately after the
with the provisions of section 618 of the Code of Civil Procedure. A day said name and surname of the testator and the cross made by him,
was appointed for the hearing and in the course of the proceedings and the same was subscribed by the three witnesses in the manner
the witnesses offered by both parties were examined; on the 10th of provided by law.
January, 1907, the court refused to admit the will of said Juan
Zalamero, as requested by Roman Abaya; Abaya appealed from the
The essential requisites prescribed by the above-mentioned section
decision and moved for a new trial which motion has not been finally
618 of the law have been complied with, namely, that three witnesses
acted upon by the court; for this reason the petitioner, now before this
were present at the execution of the will of Juan Zalamero at the date
court, still insists thereon for the effects of the appeal which he had
mentioned therein; that they heard his statement that the said
interposed, and has submitted a certified copy of the proceedings to
instrument, written and drawn up under his direction, contained his
which the assignment of errors presented by him refers.
last will; that they saw and witnessed when, at the express request of
the testator, and under his direction, the witness, Mariano Zaguirre,
Two points are presented. The first is, that Juan Zalamero, while in wrote at the foot of the will the name and surname of Juan Zalamero,
life, executed his will on the 29th of October, 1905, under lawful and when the latter put the cross between his written name and
pressure and influence exercised by those who were thereby surname, each of the witnesses subscribing it at the time and in the
benefited; and second, that the said will was not executed and signed presence of each other.
in accordance with the provisions of section 618 of the Code of Civil
Procedure.
For the reasons hereinbefore set forth it is our opinion that the
judgment appealed from should be reversed and that it be declared, as
After an examination of the facts alleged and the evidence adduced by we now do, that the will executed by the late Juan Zalamero while in
both parties, and considering the case according to the rules of life, under date of the 29th of October, 1905, was executed in
common sense and sound criticism, it must necessarily be admitted accordance with the law, and that therefore it should be duly admitted
that the weight and preponderance of the evidence prove in a in order that it may produce all consequent legal effects, and it is so
conclusive manner the authenticity and genuineness of the said will as ordered without any special ruling as to costs.
the real and true expression of the will of the testator, Juan Zalamero,
and for this reason the first point should have been decided by the
EN BANC
court below in a negative sense.

G.R. No. 1641 January 19, 1906


It was not expressly pretended that the said will should be disallowed
under the provisions of section 634 of the Code of Civil Procedure,
either because the testator was insane or otherwise mentally incapable GERMAN JABONETA, plaintiff-appellant,
to execute such instrument at the time of its execution, or because it vs.
was procured by undue and improper pressure and influence on the RICARDO GUSTILO, ET AL., defendants-appellees.
part of the beneficiaries; nor even if such request had been made,
could the nullity of the said will have been judicially declared in view of CARSON, J.:
the lack of satisfactory proof of the presence of such circumstances.
Therefore, the court, in order to disallow the petition, had to disregard
them and rest the decision upon the allegation that the will was not In these proceedings probate was denied the last will and testament of
executed in accordance with the provisions of section 618 of the Code Macario Jaboneta, deceased, because the lower court was of the
of Civil Procedure. opinion from the evidence adduced at the hearing that Julio Javellana,
one of the witnesses, did not attach his signature thereto in the
presence of Isabelo Jena, another of the witnesses, as required by the
Notwithstanding the reasons stated in the judgment appealed from, it provisions of section 618 of the Code of Civil Procedure.
appears that the will in question was executed with the requirements
established by the law in force, and that, therefore, the decision upon
the second point should be against the opponents to the petition. The following is a copy of the evidence which appears of record on this
particular point, being a part of the testimony of the said Isabeo Jena:
It is shown by the evidence, and by the will itself, that for the reasons
set forth by the testator and at his own request, one of the witnesses Q. 1641 Who first signed the will?
to the will, Mariano Zaguirre, wrote with his own hand the name and
surname of Juan Zalamero, the testator, and his presence, and that A. 1641 I signed it first, and afterwards Aniceto and
the latter put a cross between them and a note stating that what had the others.
been written before the name and surname of the said Juan Zalamero,
with the cross placed at the foot thereof, was his testament and
contained his last will as stated by him when he directed the execution Q. 1641 Who were those others to whom you have
thereof in the presence of the three witnesses who subscribed it in his just referred?
presence, and in the presence of each other.
A. 1641 After the witness Aniceto signed the will I left
It is true that the witness Mariano Zaguirre, who was requested by the the house, because I was in a hurry, and at the moment
testator to write his name and surname at the end of his will, did not when I was leaving I saw Julio Javellana with the pen in his
affix his own signature immediately below the name and surname of hand in position ready to sign (en actitud de firmar). I
Juan Zalamero and below the cross placed by the latter with the words believe he signed, because he was at the table. . . .
"by request of the testator Juan Zalamero;" but in the said will are
clearly stated the reason why it was not signed by the testator himself Q. 1641 State positively whether Julio Javellana did
as also the request he made to the witness Zaguirre, and a repetition or did not sign as a witness to the will.
thereof was not necessary; further, that this same witness, upon being
requested, wrote with his own hand the name and surname of the
45
Wills and Succession Case Digests
A. 1641 I can't say certainly, because as I was the testator, had assembled for the purpose of executing the
leaving the house I saw Julio Javellana with the pen in his testament, and were together in the same room for that purpose, and
hand, in position ready to sign. I believe he signed. at the moment when the witness Javellana signed the document he
was actually and physically present and in such position with relation
to Javellana that he could see everything which took place by merely
Q. 1641 Why do you believe Julio Javellana signed?
casting his eyes in the proper direction, and without any physical
obstruction to prevent his doing so, therefore we are of opinion that
A. 1641 Because he had the pen in his hand, which the document was in fact signed before he finally left the room.
was resting on the paper, though I did not actually see him
sign.
The purpose of a statutory requirement that the witness sign
in the presence of the testator is said to be that the testator
Q. 1641 Explain this contradictory statement. may have ocular evidence of the identity of the instrument
subscribed by the witness and himself, and the generally
A. 1641 After I signed I asked permission to leave, accepted tests of presence are vision and mental
because I was in a hurry, and while I was leaving Julio had apprehension. (See Am. & Eng. Enc. of Law, vol. 30, p. 599,
already taken the pen in his hand, as it appeared, for the and cases there cited.)
purpose of signing, and when I was near the door I
happened to turn my face and I saw that he had his hand In the matter of Bedell (2 Connoly (N.Y.), 328) it was held that it is
with the pen resting on the will, moving it as if for the sufficient if the witnesses are together for the purpose of witnessing
purpose of signing. 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
Q. 1641 State positively whether Julio moved his down the rule that the true test of vision is not whether the testator
hand with the pen as if for the purpose of signing, or actually saw the witness sign, but whether he might have seen him
whether he was signing sign, considering his mental and physical condition and position at the
time of the subscription. (Spoonemore vs. Cables, 66 Mo., 579.)

A. I believe he was signing.


The principles on which these cases rest and the tests of presence as
between the testator and the witnesses are equally applicable in
The truth and accuracy of the testimony of this witness does not seem determining whether the witnesses signed the instrument in the
to have been questioned by any of the parties to the proceedings, but presence of each other, as required by the statute, and applying them
the court, nevertheless, found the following facts: to the facts proven in these proceedings we are of opinion that the
statutory requisites as to the execution of the instrument were
On the 26th day of December, 1901, Macario Jaboneta complied with, and that the lower court erred in denying probate to
executed under the following circumstances the document in the will on the ground stated in the ruling appealed from.
question, which has been presented for probate as his will:
We are of opinion from the evidence of record that the instrument
Being in the house of Arcadio Jarandilla, in Jaro, in this propounded in these proceedings was satisfactorily proven to be the
province, he ordered that the document in question be last will and testament of Macario Jaboneta, deceased, and that it
written, and calling Julio Javellana, Aniceto Jalbuena, and should therefore be admitted to probate.
Isabelo Jena as witnesses, executed the said document as
his will. They were all together, and were in the room where The judgment of the trial court is reversed, without especial
Jaboneta was, and were present when he signed the condemnation of costs, and after twenty days the record will be
document, Isabelo Jena signing afterwards as a witness, at returned to the court form whence it came, where the proper orders
his request, and in his presence and in the presence of the will be entered in conformance herewith. So ordered.
other two witnesses. Aniceto Jalbuena then signed as a
witness in the presence of the testator, and in the presence
of the other two persons who signed as witnesses. At that EN BANC
moment Isabelo Jena, being in a hurry to leave, took his hat
and left the room. As he was leaving the house Julio G.R. No. L-5971 February 27, 1911
Javellana took the pen in his hand and put himself in
position to sign the will as a witness, but did not sign in the
BEATRIZ NERA, ET AL., plaintiffs-appellees,
presence of Isabelo Jena; but nevertheless, after Jena had
vs.
left the room the said Julio Javellana signed as a witness in
NARCISA RIMANDO, defendant-appellant.
the presence of the testator and of the witness Aniceto
Jalbuena.
CARSON, J.:
We can not agree with so much of the above finding of facts as holds
that the signature of Javellana was not signed in the presence of Jena, The only question raised by the evidence in this case as to the due
in compliance with the provisions of section 618 of the Code of Civil execution of the instrument propounded as a will in the court below, is
Procedure. The fact that Jena was still in the room when he saw whether one of the subscribing witnesses was present in the small
Javellana moving his hand and pen in the act of affixing his signature room where it was executed at the time when the testator and the
to the will, taken together with the testimony of the remaining other subscribing witnesses attached their signatures; or whether at
witnesses which shows that Javellana did in fact there and then sign that time he was outside, some eight or ten feet away, in a large room
his name to the will, convinces us that the signature was affixed in the connecting with the smaller room by a doorway, across which was
presence of Jena. The fact that he was in the act of leaving, and that hung a curtain which made it impossible for one in the outside room to
his back was turned while a portion of the name of the witness was see the testator and the other subscribing witnesses in the act of
being written, is of no importance. He, with the other witnesses and attaching their signatures to the instrument.
46
Wills and Succession Case Digests
A majority of the members of the court is of opinion that this G.R. No. L-18799 March 31, 1964
subscribing witness was in the small room with the testator and the
other subscribing witnesses at the time when they attached their
HON. JOSE F. FERNANDEZ, Judge of the Court of First
signatures to the instrument, and this finding, of course, disposes of
Instance, Negros Occidental,
the appeal and necessitates the affirmance of the decree admitting the
ASUNCION MARAVILLA, ET AL., petitioners,
document to probate as the last will and testament of the deceased.
vs.
HERMINIO MARAVILLA, respondent.
The trial judge does not appear to have considered the determination
of this question of fact of vital importance in the determination of this
BARRERA, J.:
case, as he was of opinion that under the doctrine laid down in the
case of Jaboneta vs. Gustilo (5 Phil. Rep., 541) the alleged fact that
one of the subscribing witnesses was in the outer room when the Petitioners herein appeal by certiorari from the decision of the Court of
testator and the other describing witnesses signed the instrument in Appeals (in CA-G.R. No. 27200-R) wherein, over their objection, raising
the inner room, had it been proven, would not be sufficient in itself to the question of jurisdiction petition, the appellate court took
invalidate the execution of the will. But we are unanimously of opinion cognizance of the petition for certiorari and prohibition filed by
that had this subscribing witness been proven to have been in the Herminio Maravilla and, in consequence thereof, set aside the
outer room at the time when the testator and the other subscribing appointment of petitioner Eliezar Lopez as a special co-administrator of
witnesses attached their signatures to the instrument in the inner the estate of the deceased Digna Maravilla. The pertinent antecedent
room, it would have been invalid as a will, the attaching of those facts are as follows:
signatures under circumstances not being done "in the presence" of
the witness in the outer room. This because the line of vision from this On August 25, 1958, respondent Herminio Maravilla filed with he Court
witness to the testator and the other subscribing witnesses would of First Instance of Negros Occidental a petition for probate of the will
necessarily have been impeded by the curtain separating the inner (Spec. Proc. No. 4977) of his deceased wife Digna Maravilla who died
from the outer one "at the moment of inscription of each signature." on August 12 of that same year. In the will the surviving spouse was
named as the universal heir and executor.
In the case just cited, on which the trial court relied, we held that:
On September 30, 1958, Pedro, Asuncion, and Regina Maravilla
The true test of presence of the testator and the witnesses (brother and sisters of the deceased Digna Maravilla) filed an
in the execution of a will is not whether they actually saw opposition to the probate of the will, on the ground, inter alia, that the
each other sign, but whether they might have been seen will was not signed on each page by the testatrix in the presence of
each other sign, had they chosen to do so, considering their the attesting witnesses and of one another.
mental and physical condition and position with relation to
each other at the moment of inscription of each signature. On March 16, 1959, on motion of respondent Herminio, which was
opposed by Pedro, Asuncion, and Regina Maravilla, the court issued an
But it is especially to be noted that the position of the parties with order appointing him special administrator of the estate of the
relation to each other at the moment of the subscription of each deceased, for the reason that:
signature, must be such that they may see each other sign if they
choose to do so. This, of course, does not mean that the testator and ... all the properties subject of the will are conjugal
the subscribing witnesses may be held to have executed the properties of the petitioner and his late wife, Digna
instrument in the presence of each other if it appears that they would Maravilla, and before any partition of the conjugal property
not have been able to see each other sign at that moment, without is done, the Court cannot pinpoint which of the property
changing their relative positions or existing conditions. The evidence in subject of the Will belongs to Digna Maravilla, exclusively,
the case relied upon by the trial judge discloses that "at the moment that shall be administered by the special administrator.
when the witness Javellana signed the document he was actually and Hence, although it is true that the petitioner Herminio
physically present and in such position with relation to Jaboneta that Maravilla has an adverse interest in the property subject of
he could see everything that took place by merely casting his eyes in the Will, the Court finds it impossible for the present time to
the proper direction and without any physical obstruction to prevent appoint any person other than the petitioner as special
his doing so." And the decision merely laid down the doctrine that the administrator of the property until after the partition is
question whether the testator and the subscribing witnesses to an ordered, for the reason that the properties mentioned in the
alleged will sign the instrument in the presence of each other does not Will are in the name of the petitioner who is the surviving
depend upon proof of the fact that their eyes were actually cast upon spouse of the deceased.
the paper at the moment of its subscription by each of them, but that
at that moment existing conditions and their position with relation to
each other were such that by merely casting the eyes in the proper On February 8, 1960, the court rendered a decision denying probate of
direction they could have seen each other sign. To extend the doctrine the will, as it was not duly signed on each page by the testatrix in the
further would open the door to the possibility of all manner of fraud, presence of the attesting witnesses and of one another.
substitution, and the like, and would defeat the purpose for which this
particular condition is prescribed in the code as one of the requisites in On February 17, 1960, Pedro, Asuncion, and Regina Maravilla, filed
the execution of a will. with the court a petition for appointment of Eliezar Lopez (son of
Asuncion Maravilla) as special co-administrator to protect their
The decree entered by the court below admitting the instrument interests, on the ground that the will, having been denied probate,
propounded therein to probate as the last will and testament of Pedro they are the legal heirs of the decedent. Said petition was heard on
Rimando, deceased, is affirmed with costs of this instance against the February 20, at which hearing, respondent's counsel orally moved for
appellant. postponement, because respondent's principal counsel (Salonga) had
not been notified and was not present. The court ordered presentation
of oral evidence, consisting of the testimonies of Eliezar Lopez, and
EN BANC Regina and Francisco Maravilla.
47
Wills and Succession Case Digests
On February 26, 1960, respondent filed with the court his notice of On May 16, 1961, the Court of Appeals rendered a decision granting
appeal, appeal bond and record on appeal, from the decision denying the writs (certiorari and prohibition) prayed for by respondent, and
probate of the will. Some devisees under the will, likewise, appealed declaring null and void the appointment of Eliezar Lopez as special co-
from said decision. administrator.

On February 25, 1960, Pedro, Asuncion, and Regina Maravilla, filed Petitioners Regina Maravilla, et al. filed a motion for reconsideration of
with the court a petition for the removal of respondent as special said decision, but it was denied by the Court of Appeals. Hence, this
administrator, as he failed to file an inventory within 3 months from his appeal.
appointment and qualification as special administrator, as provided for
in Section 1, Rule 84, of the Rules of Court. To this petition,
Petitioners claim that the Court of Appeals had no jurisdiction to issue
respondent filed an opposition, on the ground that said provision of
the writs of certiorari and prohibition prayed for by respondent, the
the Rules of Court does not apply to a special administrator, and an
same not being in aid of its appellate jurisdiction.
inventory had already been submitted by him, before said petition for
his removal was filed.1äwphï1.ñët
We agree with petitioners. The Court of Appeals, in the decision
appealed from, assumed jurisdiction over the present case on the
On February 27, 1960, the devisees Conchita and Rose Marie Kohlhaas
theory that "the amount in controversy relative to the appointment of
filed with the court a petition for appointment of Conchita as special
Eliezar Lopez as special co-administrator to protect the interests of
co-administratrix. Devisee Adelina Sajo, likewise, filed a similar petition
respondents (herein petitioners) is only P90,000.00 more or less, i.e.,
February 29.
one fourth of the conjugal property" (of respondent and the deceased
Digna Maravilla) which, is per inventory submitted by respondent as
On March 5, 1960, the court held a joint hearing the (1) petition to special administrator is valued at P362,424.90. This theory is
appoint Eliezar Lopez as special administrator, (2) approval of untenable. Note that the proceedings had on the appointment of
respondent's record appeal and appeal bond, (3) petition to remove Eliezar Lopez as special co-administrator are merely incidental to the
respondent as special administrator, (4) petition to appoint Conchita probate or testate proceedings of the deceased Digna Maravilla
Kohlhaas as special co-administratrix, and (5) petition to appoint presently on appeal before the Court of Appeals (CA-G.R. No. 27478-
Adelina Sajo as special co-administrator. At said hearing, respondent R) where petitioners' motion to elevate the same to the Supreme
objected to the appointment of Eliezar Lopez was special co- Court, on the ground that the amount herein involved is within the
administratrix, on grounds that (a) the law allows only one special co- latter's exclusive jurisdiction, is still pending, resolution. That the Court
administrator (b) the order of March 16, 1959 estops the court from of Appeals has no appellate jurisdiction over said testate proceedings
appointing Eliezar Lopez as special co-administrator (c) such cannot be doubted, considering that the properties therein involved
appointment is unfair to respondent, because owns at least 3/4 of the are valued at P362,424,90, as per inventory of the special
whole property, conjugal nature, which would be subjected to the administrator.
administrate of a stranger, and (d) a deadlock between two special
administrators would ruin the management of the property, including
Under Section 2, Rule 75, of the Rules of Court, the property to be
those of respondent. On cross-examination of Eliezar Lopez,
administered and liquidated in testate or intestate proceedings of the
respondent's counsel elicited the facts that (1) Lopez was employed
deceased spouse is, not only that part of the conjugal estate pertaining
full time in the PCAPE, with office in Manila. and could not discharge
to the deceased spouse, but the entire conjugal estate. This Court has
the functions of a co-administrator, and (2) there was merely intention
already held that even if the deceased had left no debts, upon the
on Lopez part to resign from office.
dissolution of the marriage by the death of the husband or wife, the
community property shall be inventoried, administered, and liquidated
After said joint hearing, the court appointed Eliezar Lopez as special in the testate or intestate proceedings of the deceased spouse (Vda.
co-administrator in an order dictated open court, to protect the de Roxas v. Pecson, et al., L-2211, December 20, 1948; 82 Phil. 407;
interests of Pedro, Asuncion and Regina Maravilla. see also Vda. de Chantengco v. Chantengco, et al., L-10663, October
31, 1958). In a number of cases where appeal was taken from an
order of a probate court disallowing a will, this Court, in effect,
From this order, respondent, on March 7, 1960, filed with the Court of
recognized that the amount or value involved or in controversy therein
Appeals a petition for certiorari and prohibition (with prayer for
is that of the entire estate (Suntay v. Suntay, L-3087, July 31, 1954,
preliminary injunction) to annul the order appointing Eliezar Lopez as
50 O.G. 5321; Vano v. Vda. de Garces, et al., L-6303, June 30, 1954,
special co-administrator, and to prohibit the probate court from further
50 O.G. 3045). Not having appellate jurisdiction over the proceedings
proceeding with the petition for the removal of respondent as special
in probate (CA-G.R. No. 27478-R), considering that the amount
administrator. The Court of Appeals issued a writ of preliminary
involved therein is more than P200,000.00, the Court of Appeals
injunction on March 9, 1960 which was amended on March 11, 1960 to
cannot also have original jurisdiction to grant the writs of certiorari and
make it more specific.
prohibition prayed for by respondent in the instant case, which are
merely incidental thereto.
On October 6, 1960, petitioners Regina Maravilla, et al. filed with the
Court of Appeals a petition to certify the case to the Supreme Court,
In the United States, the rule is that "proceedings in probate are
on the grounds that the principal amount in controversy in this case
appealable where the amount or value involved is reducible to a
exceeds P200,000.00, and the writs (of certiorari and prohibition)
pecuniary standard, the amount involved being either the appellant's
prayed for are not in aid of appellate jurisdiction of the Court of
interest or the value of the entire estate according as the issues on
Appeals, since the probate case is not on appeal before it. To this
appeal involve only the appellant's rights or the entire administration
petition, respondent filed an opposition. on the grounds that the
of the estate. ... In a contest for administration of an estate the
amount in controversy is less than P200,000.00 and the decision of the
amount or value of the assets of the estate is the amount in
probate court (of February 8, 1960) is now on appeal before the Court
controversy for purposes of appeal." (4 C.J.S. 204). In line with this
of Appeals (CA-G.R. No. 27478-R); hence, the writ prayed for is in aid
ruling, it is to be observed that respondent's interest as appellant in
of its appellate jurisdiction, and the present case does not involve title
the probate proceedings (CA-G.R. No. 27478-R) is, according to his
to or possession of real estate exceeding in value P200,000.00.1
theory, the whole estate amounting to P362,424.90, or, at least more
than 3/4 thereof, or approximately P270,000.00. Such interest,
48
Wills and Succession Case Digests
reduced to a pecuniary standard on the basis of the inventory, is the While it is true that questions of fact have been raised in the probate
amount or value of the matter in controversy, and such amount being proceedings (Spec. Proc. No. 4977, CFI of Negros Occidental) which
more than P200,000.00, it follows that the appeal taken in said was appealed by respondent to the Court of Appeals, it becomes
proceedings falls within the exclusive jurisdiction of the Supreme Court immaterial, in view of Sections 17 and 31 of the Judiciary Act of 1948,
and should, therefore, be certified to it pursuant to Section 17 of the as amended, providing that the Supreme Court shall have exclusive
Judiciary Act of 1948, as amended. appellate jurisdiction over "all cases in which the value in controversy
exceeds two hundred thousand pesos, exclusive of interests and
costs", and that "all cases which may be erroneously brought to the
Note also that the present proceedings under review were for the
Supreme Court, or to the Court of Appeals shall be sent to the proper
annulment of the appointment of Eliezar Lopez as special co-
court, which shall hear the same as if it had originally been brought
administrator and to restrain the probate court from removing
before it".
respondent as special administrator. It is therefore, a contest for the
administration of the estate and, consequently, the amount or value of
the assets of the whole estate is the value in controversy (4 C.J.S. On the question of the appointment of petitioner Eliezar Lopez as
204). It appearing that the value of the estate in dispute is much more special administrator, we agree with respondent that there was no
than P200,000.00, the Court of Appeals clearly had no original need for it. Note that the Rules of Court contain no provision on
jurisdiction to issue the writs in question. special co-administrator, the reason being, that the appointment of
such special administrator is merely temporary and subsists only until a
regular executor or administrator is duly appointed. Thus, it would not
The Court of Appeals, in the decision appealed from, arrived at the
only be unnecessary but also impractical, if for the temporary duration
amount of "P90,000.00 more or less", as the amount involved in the
of the need for a special administrator, another one is appointed aside
case, upon authority of the case of Vistan v. Archbishop (73 Phil. 20).
from the husband, in this case, upon whom the duty to liquidate the
But this case is inapplicable, as it does not refer to the question of
community property devolves merely to protect the interests of
administration of the estate, nor to an order denying probate of a will,
petitioners who, in the event that the disputed will is allowed to
but only to the recovery of a particular legacy consisting of the rentals
probate, would even have no right to participate in the proceedings at
of a fishpond belonging to the estate. In an analogous case involving
all. (Roxas v. Pecson, 82 Phil. 407.)
the administration of a trust fund, the United States Supreme Court
held:
In view of the conclusion herein reached, in connection with the
amount involved in the controversy, it is suggested that appropriate
Where the trust fund administered and ordered to be
steps be taken on the appeal pending in the Court of Appeals involving
distributed by the circuit court, in a suit to compel the
the probate of the will (CA-G.R. No. 27478-R) to comply with the
stockholders of a corporation to pay their subscriptions to
provisions of the Judiciary Act on the matter.
stock to realize the fund, amounts to more than $5,000.00,
this court has jurisdiction of the appeal, which is not affected
by the fact that the amounts decreed to some of the WHEREFORE, the decision of the Court of Appeals of May 16, 1961 is
creditors are less than that sum (Handly et al. vs. Stutz, et set aside and another one entered also setting aside the order of the
al., 34 Law Ed. 706). trial court of March 5, 1960, appointing Eliezar Lopez as special co-
administrator. Without costs. So ordered.
Respondent also contends that appeals in special proceedings, as
distinguished from ordinary civil cases, are within the exclusive EN BANC
appellate jurisdiction of the Court of Appeals, since they are not
enumerated in Section 17 of the Judiciary Act, as amended.
G.R. No. L-26545 December 16, 1927
Granting, arguendo, that a special proceeding is not a civil action, it
has never been decided that a special proceeding is not a "civil case"
(Carpenter v. Jones, 121 Cal. 362; 58 p. 842). On the other hand, it Testate Estate of Florencia R. Mateo. PERFECTO
has been held that the term "civil case" includes special proceedings GABRIEL, petitioner-appellee,
(Herkimer v. Keeler, 100 Iowa 680, N.W. 178). Moreover, Section 2, vs.
Rule 73, of the Rules of Court provides that the rules on ordinary civil RITA R. MATEO, ET AL., opponents-appellants.
actions are applicable in special proceedings where they are not
inconsistent with, or when they may serve to supplement the AVANCEÑA, C. J.:
provisions relating to special proceedings. Consequently, the procedure
of appeal is the same in civil actions as in special proceedings. (See
Moran's Comments on the Rules of Court, Vol. II, 1957 Ed., p. 326.) The judgment appealed from allowed the will of Florencia Mateo dated
February 6, 1923, composed of two used sheets to probate. The will
appears to be signed by the testatrix and three witnesses on the left
The cases cited by respondent where this Court ruled that the separate margin of each of the sheets, by the testatrix alone at the bottom, and
total claim of the parties and not the combined claims against each by the three witnesses after the attestation clause. The testatrix died
other determine the appellate jurisdictional amount, are not applicable on August 13, 1925. Opposition to such probate was filed by Rita
to, the instant case, because Section 2, Rule 75 of the Rules of Court is Mateo, the testatrix's sister, and by other relatives.
explicit that the amount or value involved or in controversy in probate
proceedings is that of the entire estate. Assuming, arguendo, that the
rule in the cases cited by respondent is here applicable, it should be The three attesting witnesses to this will, testifying in this case,
noted that respondent claims the whole estate of at least more than declared that the signature of the testatrix were written in their
3/4 thereof. Said claim, reduced to a pecuniary standard, on the basis presence and that they signed their names in the presence of the
of the inventory, would amount to more than P200,000.00 and, testatrix and of each other.
consequently, within the exclusive jurisdiction of the Supreme Court.
The testatrix from girlhood knew how to sign her name and did so with
The case of Ledesma v. Natividad (L-6115, May 10, 1954) cited by her right hand; but as the right side of her body later became
respondent in his brief, is also inapplicable, because unlike the instant paralyzed, she learned to sign with her left hand and for many years
case, it did not involve a contest in the administration of the estate.
49
Wills and Succession Case Digests
thereafter, up to the time of her death, she used to sign with that whether or not they signed with the same pen and ink, these are
hand. Opponents allege that Florencia Mateo did not sign this will. details of such trivial importance, considering that this will was signed
two years before the date on which these witnesses gave their
testimony, that it is not proper to set aside the will for this reason
There are three salient arguments among those adduced by the
alone.
opponents in support of their opposition.

The attesting witnesses to this will, who testified also as witnesses at


The attesting witnesses testified that the testratrix signed before they
the trial of this case, showed themselves to be intelligent and honest,
did. The signatures of the testatrix on the left margin of the two sheets
one of them being a lawyer of twelve year's practice, and there is no
of the will are between the signatures of the two witnesses Vidal
reason to reject their testimony, and to suppose that they were
Rañoa and Julio Gabriel, and below her surname is the signature of the
untruthful in testifying, and that they falsified the will in question.
other witness Felicisimo Gabriel. The signatures of Vidal Rañoa and
Julio Gabriel are on a level with each other, while that of Felicisimo
Gabriel is found a little lower down. The testatrix's signatures start on Lastly, attention is called to the unreasonableness of the testatrix in
the line with Felicisimo Gabriel's signature, but tend to rise and her not leaving anything to the principal opponent, her sister Rita Mateo,
surname reaches a level with Julio Gabriel's signature. and to her nephews and nieces, to whom she had been so affectionate
during life. But as to the affectionate relations between the deceased
and the opponents, only the opponent Rita Mateo testified, and she
It is said that this direction of the testatrix's signature was due to the
only stated that she was on good terms with her sister during the
fact that when it was written Felicisimo Gabriel's signature was already
latter's lifetime; that the said sister used to give her a sack or some
there, and so she had to write her surname upwards in order to avoid
gantas of rice, and, a times, a little money; that she held all her
interfering with that Felicisimo Gabriel, which would have been the
nephews and nieces in equal regard. But even supposing that this
case had she continued on the horizontal line on which she had written
were so, there is nothing strange in the testatrix having left nothing to
her first name. From this detail it is pretended to draw the inference
the opponents, or in her having left all of her estate to the only heir
that the attesting witnesses signed before testatrix, contrary to their
instituted in her will, Tomas Mateo, who is also one of her nieces. And
testimony that she singed before they did. This deduction, however, is
not only is it not strange, but it seems reasonable, since, according to
unnecessary. It may be inferred with equal, if not greater, logic that
the evidence of the testatrix when the former was but 3 years old, and
the testatrix signed before him, and when it came to the witness
from then on up to the time of her death had never been separated
Gabriel's turn, he, finding the space below the testatrix signature free,
from her.
signed his name there. On the other hand, it may be noted that the
testatrix's other signature at the bottom of the will also shows a more
or less marked tendency to rise, notwithstanding the fact that there The opposition presented Doctor Banks as expert. He testified that the
was no signature with which she might interfere if she continued to signatures of the testatrix in the will are not genuine. The petitioner,
write in a straight horizontal line. Furthermore, if, as the opposition on the other hand, presented another expert, Pedro Serrano Laktao,
alleges, the testatrix's signature is not genuine and was placed there who affirmed that these signatures are genuine. But, over the
by another person, it is strange that the latter should have done so in testimony of these experts, we have the categorical and positive
such a way as to write it above Gabriel's signature while following the declaration of veracious witnesses who affirm that these signatures
horizontal line, when this could have been avoided by simply putting it were written by the testatrix herself.
a little higher. And this may be attributed to carelessness in the first
case, but it cannot be so explained in the second.
The judgment appealed from is affirmed, with costs against the
appellants. So ordered.
Attention is also called to the apparently different kinds of ink used by
the testatrix in her signature and by the attesting witnesses. Really an
FIRST DIVISION
examination of these signature reveals a somewhat deeper intensity of
ink in the signature of the testatrix than in those of the attesting
witnesses. It is alleged that this circumstance cannot be reconciled G.R. No. L-37453 May 25, 1979
with the declaration of the attesting witnesses that they used the same
pen and ink as the testatrix. But, only one of these witnesses declared RIZALINA GABRIEL GONZALES, petitioner,
this. The other one was not sure of it and said that he said that he did vs.
not perfectly remember this detail. The third scarcely made reference HONORABLE COURT OF APPEALS and LUTGARDA
to this particular. At all events, this apparent difference in ink may be SANTIAGO, respondents.
merely
due — supposing that the same ink and pen were used — to the
difference in pressure employed in writing these signatures, as is Francisco D. Rilloraza, Jr. for petitioners.
reasonable to suppose when we consider that the testatrix was a
paralytic and wrote with her left hand; or it may have been due to the Angel A. Sison for private respondent.
fact that the attesting witnesses dipped lightly in the ink while the
testatrix dipped the pen so as to take up the ink from the bottom of
the well. To bring out this irregularity, the opposition presented the
expert Del Rosario who asserted, among other things, that the
signature of the testatrix is more recent than that of the attesting GUERRERO, J.:
witnesses. If this opinion is correct and if, as alleged, the testatrix's
signature is forged, it would mean that the forgers, after having
prepared the will and made the witnesses sign, allowed sometime to This is a petition for review of the decision of the Court of Appeals,
elapsed before forging the testatrix's signature, which supposition is First Division, 1 promulgated on May 4, 1973 in CA G.R. No. 36523-R
not all probable, nor has it been explained.lawphi1.net which reversed the decision of the Court of First Instance of Rizal
dated December 15, 1964 and allowed the probate of the last will and
testament of the deceased Isabel Gabriel. *
At all events, even admitting that there is a certain question as to
whether the attesting witnesses signed before or after the testatrix, or
50
Wills and Succession Case Digests
It appears that on June 24, 1961, herein private respondent Lutgarda Verena an surnamed Santiago. To herein private respondent Lutgarda
Santiago filed a petition with the Court of First Instance of Rizal Santiago, who was described in the will by the testatrix as "aking
docketed as Special Proceedings No. 3617, for the probate of a will mahal na pamangkin na aking pinalaki, inalagaan at minahal na
alleged to have been executed by the deceased Isabel Gabriel and katulad ng isang tunay na anak" and named as universal heir and
designating therein petitioner as the principal beneficiary and executor, were bequeathed all properties and estate, real or personal
executrix. already acquired, or to be acquired, in her testatrix name, after
satisfying the expenses, debts and legacies as aforementioned.
There is no dispute in the records that the late Isabel Andres Gabriel
died as a widow and without issue in the municipality of Navotas, The petition was opposed by Rizalina Gabriel Gonzales, herein
province of Rizal her place of residence, on June 7, 1961 at the age of petitioner, assailing the document purporting to be the will of the
eighty-five (85), having been born in 1876. It is likewise not deceased on the following grounds:
controverted that herein private respondent Lutgarda Santiago and
petitioner Rizalina Gabriel Gonzales are nieces of the deceased, and
1. that the same is not genuine; and in the
that private respondent, with her husband and children, lived with the
alternative
deceased at the latters residence prior an- d up to the time of her
death.
2. that the same was not executed and attested as
required by law;
The will submitted for probate, Exhibit "F", which is typewritten and in
Tagalog, appears to have been executed in Manila on the 15th day of
April, 1961, or barely two (2) months prior to the death of Isabel 3. that, at the time of the alleged execution of the
Gabriel. It consists of five (5) pages, including the pages whereon the purported wilt the decedent lacked testamentary
attestation clause and the acknowledgment of the notary public were capacity due to old age and sickness; and in the
written. The signatures of the deceased Isabel Gabriel appear at the second alternative
end of the will on page four and at the left margin of all the pages.
The attestation clause, which is found on page four, reads as follows: 4. That the purported WW was procured through
undue and improper pressure and influence on the
PATUNAY NG MGA SAKSI part of the principal beneficiary, and/or of some
other person for her benefit.
Kaming mga nakalagdang mga saksi o testigo na
ang aming mga tinitirahan ay nakasulat sa gawing Lutgarda Santiago filed her Answer to the Opposition on February 1,
kanan at kahilira ng aming mga pangalan sa ibaba 1962. After trial, the court a quo rendered judgment, the summary and
nito, ay pagpapatutuo na ipinakilala ipinaalam at dispositive portions of which read:
ipinahayag sa amin ni Isabel Gabriel na ang
kasulatang ito na binubuo ng Limang Dahon (Five Passing in summary upon the grounds advanced
Pages) pati na ang dahong ito, na siya niyang by the oppositor, this Court finds:
TESTAMENTO AT HULING HABILIN, ngayong ika
15 ng Abril, 1961, ay nilagdaan ng nasabing
testadora na si Isabel Gabriel ang nasabing 1. That there is no iota of evidence to support the
testamento sa ibaba o ilalim ng kasulatan na nasa contentio that the purported will of the deceased
ika apat na dahon (page four) at nasa itaas ng was procured through undue and improper
patunay naming ito, at sa kaliwang panig ng lahat pressure and influence on the part of the
at bawat dahon (and on the left hand margin of petitioner, or of some other person for her benefit;
each and every page), sa harap ng lahat at bawat
isa sa amin, at kami namang mga saksi ay 2. That there is insufficient evidence to sustain the
lumagda sa harap ng nasabing testadora, at sa contention that at the time of the alleged
harap ng lahat at bawat isa sa amin, sa ilalim ng execution of the purported will, the deceased
patunay ng mga saksi at sa kaliwang panig ng lacked testamentary capacity due to old age and
lahat at bawa't dahon ng testamentong ito. sickness;

At the bottom thereof, under the heading "Pangalan", are written the 3. That sufficient and abundant evidence warrants
signatures of Matilde D. Orobia, Celso D. Gimpaya and Maria R. conclusively the fact that the purported will of the
Gimpaya, and opposite the same, under the heading "Tirahan", are deceased was not executed and attested as
their respective places of residence, 961 Highway 54, Philamlife, for required by law;
Miss Orobia, and 12 Dagala St., Navotas, Rizal, for the two Gimpayas.
Their signatures also appear on the left margin of all the other pages.
The WW is paged by typewritten words as follows: "Unang Dahon" 4. That the evidence is likewise conclusive that the
and underneath "(Page One)", "Ikalawang Dahon" and underneath document presented for probate, Exhibit 'F' is not
"(Page Two)", etc., appearing at the top of each page. the purported win allegedly dictated by the
deceased, executed and signed by her, and
attested by her three attesting witnesses on April
The will itself provides that the testatrix desired to be buried in the 15, 1961.
Catholic Cemetery of Navotas, Rizal in accordance with the rites of the
Roman Catholic Church, all expenses to be paid from her estate; that
all her obligations, if any, be paid; that legacies in specified amounts WHEREFORE, Exhibit "F", the document presented
be given to her sister, Praxides Gabriel Vda. de Santiago, her brother for probate as the last wig and testament of the
Santiago Gabriel, and her nephews and nieces, Benjamin, Salud, deceased Isabel Gabriel is here by DISALLOWED.
Rizalina (herein petitioner), Victoria, Ester, Andres, all surnamed
Gabriel, and Evangeline, Rudyardo Rosa, Andrea, Marcial, Numancia,
51
Wills and Succession Case Digests
From this judgment of disallowance, Lutgarda Santiago appealed to III. The Court of Appeals erred in finding that Atty, Paraiso was not
respondent Court, hence, the only issue decided on appeal was previously furnished with the names and residence certificates of the
whether or not the will in question was executed and attested as witnesses as to enable him to type such data into the document
required by law. The Court of Appeals, upon consideration of the Exhibit "F".
evidence adduced by both parties, rendered the decision now under
review, holding that the will in question was signed and executed by
IV. The Court of Appeals erred in holding that the fact that the three
the deceased Isabel Gabriel on April 15, 1961 in the presence of the
typewritten lines under the typewritten words "Pangalan" and
three attesting witnesses, Matilde Orobia, Celso Gimpaya and Maria
"Tinitirahan" were left blank shows beyond cavil that the three
Gimpaya, signing and witnessing the document in the presence of the
attesting witnesses were all present in the same occasion.
deceased and of each other as required by law, hence allow ed
probate.
V. The Court of Appeals erred in reversing the trial court's finding that
it was incredible that Isabel Gabriel could have dictated the wilt Exhibit
Oppositor Rizalina Gabriel Gonzales moved for reconsideration of the
3
"F , without any note or document, to Atty. Paraiso.
aforesaid decision and such motion was opposed 4 by petitioner-
appellant Lutgarda Santiago. Thereafter. parties submitted their
respective Memoranda, 5and on August 28, 1973, respondent Court, VI. The Court of Appeals erred in reversing the finding of the trial court
Former Special First Division, by Resolution 6 denied the motion for that Matilde Orobia was not physically present when the Will Exhibit
reconsideration stating that: "F" was allegedly signed on April 15, 1961 by the deceased Isabel
Gabriel and the other witnesses Celso Gimpaya and Maria Gimpaya.
The oppositor-appellee contends that the
preponderance of evidence shows that the VII. The Court of Appeals erred in holding that the trial court gave
supposed last wig and testament of Isabel Gabriel undue importance to the picture takings as proof that the win was
was not executed in accordance with law because improperly executed.
the same was signed on several occasions, that
the testatrix did not sign the will in the presence VIII. The Court of Appeals erred in holding that the grave
of all the instrumental witnesses did not sign the contradictions, evasions, and misrepresentations of witnesses
will in the presence of each other. (subscribing and notary) presented by the petitioner had been
explained away, and that the trial court erred in rejecting said
The resolution of the factual issue raised in the testimonies.
motion for reconsideration hinges on the
appreciation of the evidence. We have carefully IX. The Court of Appeals acted in excess of its appellate jurisdiction or
re-examined the oral and documentary evidence has so far departed from the accepted and usual course of judicial
of record, There is no reason to alter the findings proceedings, as to call for an exercise of the power of supervision.
of fact in the decision of this Court sought to be
set aside. 7
X. The Court of Appeals erred in reversing the decision of the trial
court and admitting to probate Exhibit "F", the alleged last will and
In her petition before this Court, oppositor Rizalina Gabriel Gonzales testament of the deceased Isabel Gabriel.
contends that respondent Court abused its discretion and/or acted
without or in excess of its jurisdiction in reverssing the findings of fact
and conclusions of the trial court. The Court, after deliberating on the It will be noted from the above assignments of errors that the same
petition but without giving due course resolved, in the Resolution are substantially factual in character and content. Hence, at the very
dated Oct. 11, 1973 to require the respondents to comment thereon, outset, We must again state the oft-repeated and well-established rule
which comment was filed on Nov. 14, 1973. Upon consideration of the that in this jurisdiction, the factual findings of the Court of Appeals are
allegations, the issues raised and the arguments adduced in the not reviewable, the same being binding and conclusive on this Court.
petition, as well as the Comment 8 of private respondent thereon, We This rule has been stated and reiterated in a long line of cases
denied the petition by Resolution on November 26, 1973, 9 the enumerated in Chan vs. CA (L-27488, June 30, 1970, 33 SCRA 737,
question raised being factual and for insufficient showing that the 743) 12 and Tapas vs. CA (L-22202, February 27; 1976, 69 SCRA
findings of fact by respondent Court were unsupported by substantial 393), 13and in the more recent cases of Baptisia vs. Carillo and
evidence. CA (L32192, July 30, 1976, 72 SCRA 214, 217) and Vda. de Catindig
vs. Heirs of Catalina Roque (L-25777, November 26, 1976, 74 SCRA
83, 88). In the case of Chan vs. CA, this Court said:
Subsequently, or on December 17, 1973, petitioner Rim Gabriel Goes
fried a Motion for Reconsideration 10 which private respondent
answered by way of her Comment or Opposition 11 filed on January ... from Guico v. Mayuga, a 1936 decision, the opinion being penned
15, 1974. A Reply and Rejoinder to Reply followed. Finally, on March by the then Justice Recto, it has been well-settled that the jurisdiction
27, 1974, We resolved to give due course to the petition. of tills Court in cases brought to us from the Court of Appeals is limited
to reviewing and revising the errors of law imputed to it, its findings of
fact being conclusive. More specifically, in a decision exactly a month
The petitioner in her brief makes the following assignment of errors: later, this Court, speaking through the then Justice Laurel, it was held
that the same principle is applicable, even if the Court of Appeals was
I. The respondent Court of Appeals erred in holding that the in disagreement with the lower court as to the weight of the evidence
document, Exhibit "F" was executed and attested as required by law with a consequent reversal of its findings of fact ...
when there was absolutely no proof that the three instrumental
witnesses were credible witness Stated otherwise, findings of facts by the Court of Appeals, when
supported by substantive evidence are not reviewable on appeal by
II. The Court of Appeals erred in reversing the finding of the lower certiorari. Said findings of the appellate court are final and cannot be
court that the preparation and execution of the win Exhibit "F", was disturbed by Us particularly because its premises are borne out by the
unexpected and coincidental. record or based upon substantial evidence and what is more, when
52
Wills and Succession Case Digests
such findings are correct. Assignments of errors involving factual honesty and uprightness, because such attributes are presumed of the
issues cannot be ventilated in a review of the decision of the Court of witness unless the contrary is proved otherwise by the opposing party.
Appeals because only legal questions may be raised. The Supreme
Court is not at liberty to alter or modify the facts as set forth in the
We also reject as without merit petitioner's contention that the term
decision of the Court of Appeals sought to be reversed. Where the
"credible" as used in the Civil Code should be given the same meaning
findings of the Court of Appeals are contrary to those of the trial court,
it has under the Naturalization Law where the law is mandatory that
a minute scrutiny by the Supreme Court is in order, and resort to duly-
the petition for naturalization must be supported by two character
proven evidence becomes necessary. The general rule We have thus
witnesses who must prove their good standing in the community,
stated above is not without some recognized exceptions.
reputation for trustworthiness and reliableness, their honesty and
uprightness. The two witnesses in a petition for naturalization are
Having laid down the above legal precepts as Our foundation, We now character witnesses in that being citizens of the Philippines, they
proceed to consider petitioner's assignments of errors. personally know the petitioner to be a resident of the Philippines for
the period of time required by the Act and a person of good repute
and morally irreproachable and that said petitioner has in their opinion
Petitioner, in her first assignment, contends that the respondent Court
all the qualifications necessary to become a citizen of the Philippines
of Appeals erred in holding that the document, Exhibit "F", was
and is not in any way disqualified under the provisions of the
executed and attested as required by law when there was absolutely
Naturalization Law (Section 7, Commonwealth Act No. 473 as
no proof that the three instrumental witnesses were credible
amended).
witnesses. She argues that the require. ment in Article 806, Civil Code,
that the witnesses must be credible is an absolute requirement which
must be complied with before an alleged last will and testament may In probate proceedings, the instrumental witnesses are not character
be admitted to probate and that to be a credible witness, there must witnesses for they merely attest the execution of a will or testament
be evidence on record that the witness has a good standing in his and affirm the formalities attendant to said execution. And We agree
community, or that he is honest and upright, or reputed to be with the respondent that the rulings laid down in the cases cited by
trustworthy and reliable. According to petitioner, unless the petitioner concerning character witnesses in naturalization proceedings
qualifications of the witness are first established, his testimony may are not applicable to instrumental witnesses to wills executed under
not be favorably considered. Petitioner contends that the term the Civil Code of the Philippines.
"credible" is not synonymous with "competent" for a witness may be
competent under Article 820 and 821 of the Civil Code and still not be
In the case at bar, the finding that each and everyone of the three
credible as required by Article 805 of the same Code. It is further
instrumental witnesses, namely, Matilde Orobia, Celso Gimpaya and
urged that the term "credible" as used in the Civil Code should receive
Maria Gimpaya, are competent and credible is satisfactorily supported
the same settled and well- known meaning it has under the
by the evidence as found by the respondent Court of Appeals, which
Naturalization Law, the latter being a kindred legislation with the Civil
findings of fact this Tribunal is bound to accept and rely upon.
Code provisions on wigs with respect to the qualifications of witnesses.
Moreover, petitioner has not pointed to any disqualification of any of
the said witnesses, much less has it been shown that anyone of them
We find no merit to petitioner's first assignment of error. Article 820 of is below 18 years of age, of unsound mind, deaf or dumb, or cannot
the Civil Code provides the qualifications of a witness to the execution read or write.
of wills while Article 821 sets forth the disqualification from being a
witness to a win. These Articles state:
It is true that under Article 805 of the New Civil Code, every will, other
than a holographic will, must be subscribed at the end thereof by the
Art. 820. Any person of sound mind and of the testator himself or by the testator's name written by some other
age of eighteen years or more, and not blind, deaf person in his presence, and by his express direction, and attested and
or dumb, and able to read and write, may be a subscribed by three or more credible witnesses in the presence of the
witness to the execution of a will mentioned in testator and of one another, While the petitioner submits that Article
article 806 of this Code. "Art. 821. The following 820 and 821 of the New Civil Code speak of the competency of a
are disqualified from being witnesses to a will: witness due to his qualifications under the first Article and none of the
disqualifications under the second Article, whereas Article 805 requires
the attestation of three or more credible witnesses, petitioner
(1) Any person not domiciled in the Philippines,
concludes that the term credible requires something more than just
being competent and, therefore, a witness in addition to
(2) Those who have been convicted of falsification being competent under Articles 820 and 821 must also be a credible
of a document, perjury or false testimony. witness under Article 805.

Under the law, there is no mandatory requirement that the witness Petitioner cites American authorities that competency and credibility of
testify initially or at any time during the trial as to his good standing in a witness are not synonymous terms and one may be a competent
the community, his reputation for trustworthythiness and reliableness, witness and yet not a credible one. She exacerbates that there is no
his honesty and uprightness in order that his testimony may be evidence on record to show that the instrumental witnesses are
believed and accepted by the trial court. It is enough that the credible in themselves, that is, that they are of good standing in the
qualifications enumerated in Article 820 of the Civil Code are complied community since one was a family driver by profession and the second
with, such that the soundness of his mind can be shown by or deduced the wife of the driver, a housekeeper. It is true that Celso Gimpaya
from his answers to the questions propounded to him, that his age (18 was the driver of the testatrix and his wife Maria Gimpaya, merely a
years or more) is shown from his appearance, testimony , or housekeeper, and that Matilde Orobia was a piano teacher to a
competently proved otherwise, as well as the fact that he is not blind, grandchild of the testatrix But the relation of employer and employee
deaf or dumb and that he is able to read and write to the satisfaction much less the humble or financial position of a person do not
of the Court, and that he has none of the disqualifications under Article disqualify him to be a competent testamentary witness. (Molo Pekson
821 of the Civil Code. We reject petitioner's contention that it must and Perez Nable vs. Tanchuco, et al., 100 Phil. 344; Testate Estate of
first be established in the record the good standing of the witness in Raymundo, Off. Gaz., March 18,1941, p. 788).
the community, his reputation for trustworthiness and reliableness, his
53
Wills and Succession Case Digests
Private respondent maintains that the qualifications of the three or In the strict sense, the competency of a person to be an instrumental
more credible witnesses mentioned in Article 805 of the Civil Code are witness to a will is determined by the statute, that is Art. 820 and 821,
those mentioned in Article 820 of the same Code, this being obvious Civil Code, whereas his credibility depends On the appreciation of his
from that portion of Article 820 which says "may be Q witness to the testimony and arises from the belief and conclusion of the Court that
execution of a will mentioned in Article 805 of this Code," and cites said witness is telling the truth. Thus, in the case of Vda. de Aroyo v.
authorities that the word "credible" insofar as witnesses to a will are El Beaterio del Santissimo Rosario de Molo, No. L-22005, May 3, 1968,
concerned simply means " competent." Thus, in the case of Suntay vs. the Supreme Court held and ruled that: "Competency as a witness is
Suntay, 95 Phil. 500, the Supreme Court held that "Granting that a will one thing, and it is another to be a credible witness, so credible that
was duly executed and that it was in existence at the time of, and not the Court must accept what he says. Trial courts may allow a person
revoked before, the death of the testator, still the provisions of the lost to testify as a witness upon a given matter because he is competent,
wig must be clearly and distinctly proved by at least two credible but may thereafter decide whether to believe or not to believe his
witnesses. 'Credible witnesses' mean competent witnesses and not testimony." In fine, We state the rule that the instrumental witnesses
those who testify to facts from or upon hearsay. " emphasis supplied). in Order to be competent must be shown to have the qualifications
under Article 820 of the Civil Code and none of the disqualifications
under Article 821 and for their testimony to be credible, that is worthy
In Molo Pekson and Perez Nable vs. Tanchuco, et al., 100 Phil. 344,
of belief and entitled to credence, it is not mandatory that evidence be
the Supreme Court held that "Section 620 of the same Code of Civil
first established on record that the witnesses have a good standing in
Procedure provides that any person of sound mind, and of the age of
the community or that they are honest and upright or reputed to be
eighteen years or more, and not blind, deaf, or dumb and able to read
trustworthy and reliable, for a person is presumed to be such unless
and write, may be a witness to the execution of a will. This same
the contrary is established otherwise. In other words, the instrumental
provision is reproduced in our New Civil Code of 1950, under Art. 820.
witnesses must be competent and their testimonies must be credible
The relation of employer and employee, or being a relative to the
before the court allows the probate of the will they have attested. We,
beneficiary in a win, does not disqualify one to be a witness to a will.
therefore, reject petitioner's position that it was fatal for respondent
The main qualification of a witness in the attestation of wills, if other
not to have introduced prior and independent proof of the fact that the
qualifications as to age, mental capacity and literacy are present, is
witnesses were "credible witnesses that is, that they have a good
that said witness must be credible, that is to say, his testimony may be
standing in the community and reputed to be trustworthy and reliable.
entitled to credence. There is a long line of authorities on this point, a
few of which we may cite:
Under the second, third, fourth, fifth, sixth, seventh and eighth
assignments of errors, petitioner disputes the findings of fact of the
A 'credible witness is one who is not is not to
respondent court in finding that the preparation and execution of the
testify by mental incapacity, crime, or other cause.
will was expected and not coincidental, in finding that Atty. Paraiso
Historical Soc of Dauphin County vs. Kelker 74 A.
was not previously furnished with the names and residence certificates
619, 226 Pix 16, 134 Am. St. Rep. 1010. (Words
of the witnesses as to enable him to type such data into the document
and Phrases, Vol. 10, p. 340).
Exhibit "F", in holding that the fact that the three typewritten lines
under the typewritten words "pangalan" and "tinitirahan" were left
As construed by the common law, a 'credible blank shows beyond cavil that the three attesting witnesses were all
witness' to a will means a 'competent witness.' present in the same occasion, in holding credible that Isabel Gabriel
Appeal of Clark, 95 A. 517, 114 Me. 105, Ann. Cas. could have dictated the will without note or document to Atty. Paraiso,
1917A, 837. (lbid, p. 341). in holding that Matilde Orobia was physically present when the will was
signed on April 15, 1961 by the deceased Isabel Gabriel and the other
Expression 'credible witness' in relation to witnesses Celso Gimpaya and Maria Gimpaya, in holding that the trial
attestation of wins means 'competent witness that court gave undue importance to the picture takings as proof that the
is, one competent under the law to testify to fact will was improperly executed, and in holding that the grave
of execution of will. Vernon's Ann. Civ St. art. contradictions, evasions and misrepresentations of the witnesses
8283. Moos vs. First State Bank of Uvalde, Tex . (subscribing and notary) presented by the petitioner had been
Civ. App. 60 S.W. 2nd 888, 889. (Ibid, p. 342) explained away.

The term 'credible', used in the statute of wills Since the above errors are factual We must repeat what We have
requiring that a will shall be attested by two previously laid down that the findings of fact of the appellate court are
credible witnesses means competent; witnesses binding and controlling which We cannot review, subject to certain
who, at the time of attesting the will, are legally exceptions which We win consider and discuss hereinafter. We are
competent to testify, in a court of justice, to the convinced that the appellate court's findings are sufficiently justified
facts attested by subscribing the will, the and supported by the evidence on record. Thus, the alleged
competency being determined as of the date of unnaturalness characterizing the trip of the testatrix to the office of
the execution of the will and not of the timr it is Atty. Paraiso and bringing all the witnesses without previous
offered for probate, Smith vs. Goodell 101 N.E. appointment for the preparation and execution of the win and that it
255, 256, 258 111. 145. (Ibid.) was coincidental that Atty. Paraiso was available at the moment
impugns the finding of the Court of Appeals that although Atty. Paraiso
admitted the visit of Isabel Gabriel and of her companions to his office
Credible witnesses as used in the statute relating on April 15, 1961 was unexpected as there was no prior appointment
to wills, means competent witnesses — that is, with him, but he explained that he was available for any business
such persons as are not legally disqualified from transaction on that day and that Isabel Gabriel had earlier requested
testifying in courts of justice, by reason of mental him to help her prepare her will. The finding of the appellate court is
incapacity, interest, or the commission of crimes, amply based on the testimony of Celso Gimpaya that he was not only
or other cause excluding them from testifying informed on the morning of the day that he witnessed the will but that
generally, or rendering them incompetent in it was the third time when Isabel Gabriel told him that he was going to
respect of the particular subject matter or in the witness the making of her will, as well as the testimony of Maria
particular suit. Hill vs. Chicago Title & Trust co 152 Gimpaya that she was called by her husband Celso Gimpaya to
N.E. 545, 546, 322 111. 42. (Ibid. p, 343)
54
Wills and Succession Case Digests
proceed to Isabel Gabriel's house which was nearby and from said notary public and as such public document is evidence of the facts in
house, they left in a car to the lawyer's office, which testimonies are clear, unequivocal manner therein expressed. It has in its favor the
recited in the respondent Court's decision. presumption of regularity. To contradict all these, there must be
evidence that is clear, convincing and more than merely preponderant.
(Yturalde vs. Azurin, 28 SCRA 407). We find no such evidence pointed
The respondent Court further found the following facts: that Celso
by petitioner in the case at bar.
Gimpaya and his wife Maria Gimpaya obtained residence certificates a
few days before Exhibit "F" was executed. Celso Gimpaya's residence
certificate No. A-5114942 was issued at Navotas, Rizal on April 13, Likewise, the conclusion of the Court of Appeals in holding that the
1961 while Maria Gimpaya's residence certificate No. A-5114974 was fact that the three typewritten lines under the typewritten words
issued also at Navotas, Rizal on April 14, 1961. The respondent Court "pangalan ' and "tinitirahan" were left blank shows beyond cavil that
correctly observed that there was nothing surprising in these facts and the three attesting witnesses were all present in the same occasion
that the securing of these residence certificates two days and one day, merits Our approval because tills conclusion is supported and borne
respectively, before the execution of the will on April 15, 1961, far out by the evidence found by the appellate court, thus: "On page 5 of
from showing an amazing coincidence, reveals that the spouses were Exhibit "F", beneath the typewritten words "names", "Res. Tax Cert.
earlier notified that they would be witnesses to the execution of Isabel date issued" and place issued the only name of Isabel Gabriel with
Gabriel's will. Residence Tax certificate No. A-5113274 issued on February 24, 1961
at Navotas Rizal appears to be in typewritten form while the names,
residence tax certificate numbers, dates and places of issuance of said
We also agree with the respondent Court's conclusion that the
certificates pertaining to the three (3) witnesses were personally
excursion to the office of Atty. Paraiso was planned by the deceased,
handwritten by Atty. Paraiso. Again, this coincides with Atty. Paraiso's
which conclusion was correctly drawn from the testimony of the
even the sale must be made to close relatives; and the seventh was
Gimpaya spouses that they started from the Navotas residence of the
the appointment of the appellant Santiago as executrix of the will
deceased with a photographer and Isabel Gabriel herself, then they
without bond. The technical description of the properties in paragraph
proceeded by car to Matilde Orobia's house in Philamlife, Quezon City
5 of Exhibit F was not given and the numbers of the certificates of title
to fetch her and from there, all the three witnesses (the Gimpayas and
were only supplied by Atty. Paraiso. "
Orobia) passed by a place where Isabel Gabriel stayed for about ten to
fifteen minutes at the clinic of Dr. Chikiamco before they proceeded to
Atty. Cipriano Paraiso's office. It is true that in one disposition, the numbers of the Torrens titles of
the properties disposed and the docket number of a special proceeding
are indicated which Atty. Paraiso candidly admitted were supplied by
It is also evident from the records, as testified to by Atty. Paraiso, that
him, whereupon petitioner contends that it was incredible that Isabel
previous to the day that. the will was executed on April 15, 1961,
Gabriel could have dictated the will Exhibit "F" without any note or
Isabel Gabriel had requested him to help her in the execution of her
document to Atty. Paraiso, considering that Isabel Gabriel was an old
will and that he told her that if she really wanted to execute her will,
and sickly woman more than eighty-one years old and had been
she should bring with her at least the Mayor of Navotas, Rizal and a
suffering from a brain injury caused by two severe blows at her head
Councilor to be her witnesses and that he (Atty. Paraiso) wanted a
and died of terminal cancer a few weeks after the execution of Exhibit
medical certificate from a physician notwithstanding the fact that he
"F". While we can rule that this is a finding of fact which is within the
believed her to be of sound and disposition mind. From this evidence,
competency of the respondent appellate court in determining the
the appellate court rightly concluded, thus: "It is, therefore, clear that
testamentary capacity of the testatrix and is, therefore, beyond Our
the presence of Isabel Gabriel and her witnesses Matilde Orobia, Celso
power to revise and review, We nevertheless hold that the conclusion
Gimpaya and Maria Gimpaya including the photographer in the law
reached by the Court of Appeals that the testatrix dictated her will
office of Atty. Paraiso was not coincidental as their gathering was pre-
without any note or memorandum appears to be fully supported by the
arranged by Isabel Gabriel herself."
following facts or evidence appearing on record. Thus, Isabel Gabriel,
despite her age, was particularly active in her business affairs as she
As to the appellate court's finding that Atty. Paraiso was not previously actively managed the affairs of the movie business ISABELITA Theater,
furnished with the names and residence certificates of the witnesses as paying the aparatistas herself until June 4, 1961, 3 days before her
to enable him to type such data into the document Exhibit ' L which death. She was the widow of the late Eligio Naval, former Governor of
the petitioner assails as contradictory and irreconcilable with the Rizal Province and acted as coadministratrix in the Intestate Estate of
statement of the Court that Atty. Paraiso was handed a list (containing her deceased husband Eligio Naval. The text of the win was in
the names of the witnesses and their respective residence certificates) Tagalog, a dialect known and understood by her and in the light of all
immediately upon their arrival in the law office by Isabel Gabriel and the circumstances, We agree with the respondent Court that the
this was corroborated by Atty. Paraiso himself who testified that it was testatrix dictated her will without any note or memorandum, a fact
only on said occasion that he received such list from Isabel Gabriel, unanimously testified to by the three attesting witnesses and the
We cannot agree with petitioner's contention. We find no contradiction notary public himself.
for the, respondent Court held that on the occasion of the will making
on April 15, 1961, the list was given immediately to Atty. Paraiso and
Petitioner's sixth assignment of error is also bereft of merit. The
that no such list was given the lawyer in any previous occasion or date
evidence, both testimonial and documentary is, according to the
prior to April 15, 1961.
respondent court, overwhelming that Matilde Orobia was physically
present when the will was signed on April 15, 1961 by the testatrix
But whether Atty. Paraiso was previously furnished with the names and the other two witnesses, Celso Gimpaya and Maria Gimpaya. Such
and residence certificates of the witnesses on a prior occasion or on factual finding of the appellate court is very clear, thus: "On the
the very occasion and date in April 15, 1961 when the will was contrary, the record is replete with proof that Matilde Orobia was
executed, is of no moment for such data appear in the notarial physically present when the will was signed by Isabel Gabriel on April
acknowledgment of Notary Public Cipriano Paraiso, subscribed and '15, 1961 along with her co-witnesses Celso Gimpaya and Maria
sworn to by the witnesses on April 15, 1961 following the attestation Gimpaya. The trial court's conclusion that Orobia's admission that she
clause duly executed and signed on the same occasion, April 15, 1961. gave piano lessons to the child of the appellant on Wednesdays and
And since Exhibit "F" is a notarial will duly acknowledged by the Saturdays and that April 15, 1961 happened to be a Saturday for
testatrix and the witnesses before a notary public, the same is a public which reason Orobia could not have been present to witness the will
document executed and attested through the intervention of the on that — day is purely conjectural. Witness Orobia did not admit
55
Wills and Succession Case Digests
having given piano lessons to the appellant's child every Wednesday the trial court. On the other hand, the respondent Court of Appeals
and Saturday without fail. It is highly probable that even if April 15, held that said contradictions, evasions and misrepresentations had
1961 were a Saturday, she gave no piano lessons on that day for been explained away. Such discrepancies as in the description of the
which reason she could have witnessed the execution of the will. typewriter used by Atty. Paraiso which he described as "elite" which to
Orobia spoke of occasions when she missed giving piano lessons and him meant big letters which are of the type in which the will was
had to make up for the same. Anyway, her presence at the law office typewritten but which was Identified by witness Jolly Bugarin of the
of Atty. Paraiso was in the morning of April 15, 1961 and there was N.B.I. as pica the mistake in mentioning the name of the photographer
nothing to preclude her from giving piano lessons on the afternoon of by Matilde Orobia to be Cesar Mendoza when actually it was Benjamin
the same day in Navotas, Rizal." Cifra, Jr.— these are indeed unimportant details which could have
been affected by the lapse of time and the treachery of human
memory such that by themselves would not alter the probative value
In addition to the testimony of Matilde Orobia, Celso Gimpaya and
of their testimonies on the true execution of the will, (Pascual vs. dela
Maria Gimpaya that Matilde was present on April 15, 1961 and that she
Cruz, 28 SCRA 421, 424) for it cannot be expected that the testimony
signed the attestation clause to the will and on the left-hand margin of
of every person win be Identical and coinciding with each other with
each of the pages of the will, the documentary evidence which is the
regard to details of an incident and that witnesses are not expected to
will itself, the attestation clause and the notarial acknowledgment
remember all details. Human experience teach us "that contradictions
overwhelmingly and convincingly prove such fact that Matilde Orobia
of witnesses generally occur in the details of certain incidents, after a
was present on that day of April 15, 1961 and that she witnessed the
long series of questionings, and far from being an evidence of
will by signing her name thereon and acknowledged the same before
falsehood constitute a demonstration of good faith. In as much as not
the notary public, Atty. Cipriano P. Paraiso. The attestation clause
all those who witness an incident are impressed in like manner, it is
which Matilde Orobia signed is the best evidence as to the date of
but natural that in relating their impressions, they should not agree in
signing because it preserves in permanent form a recital of all the
the minor details; hence the contradictions in their testimony." (Lopez
material facts attending the execution of the will. This is the very
vs. Liboro, 81 Phil. 429).
purpose of the attestation clause which is made for the purpose of
preserving in permanent form a record of the facts attending the
execution of the will, so that in case of failure in the memory of the It is urged of Us by the petitioner that the findings of the trial court
subscribing witnesses, or other casualty they may still be proved. should not have been disturbed by the respondent appellate court
(Thompson on Wills, 2nd ed., Sec. 132; Leynez vs. Leynez, 68 Phil. because the trial court was in a better position to weigh and evaluate
745). the evidence presented in the course of the trial. As a general rule,
petitioner is correct but it is subject to well-established exceptions. The
right of the Court of Appeals to review, alter and reverse the findings
As to the seventh error assigned by petitioner faulting the Court of
of the trial court where the appellate court, in reviewing the evidence
Appeals in holding that the trial court gave undue importance to the
has found that facts and circumstances of weight and influence have
picture-takings as proof that the win was improperly executed, We
been ignored and overlooked and the significance of which have been
agree with the reasoning of the respondent court that: "Matilde
misinterpreted by the trial court, cannot be disputed. Findings of facts
Orobia's Identification of the photographer as "Cesar Mendoza",
made by trial courts particularly when they are based on conflicting
contrary to what the other two witnesses (Celso and Maria Gimpaya)
evidence whose evaluation hinges on questions of credibility of
and Atty. Paraiso said that the photographer was Benjamin Cifra, Jr., is
contending witnesses hes peculiarly within the province of trial courts
at worst a minor mistake attributable to lapse of time. The law does
and generally, the appellate court should not interfere with the same.
not require a photographer for the execution and attestation of the
In the instant case, however, the Court of Appeals found that the trial
will. The fact that Miss Orobia mistakenly Identified the photographer
court had overlooked and misinterpreted the facts and circumstances
as Cesar Mendoza scarcely detracts from her testimony that she was
established in the record. Whereas the appellate court said that
present when the will was signed because what matters here is not the
"Nothing in the record supports the trial court's unbelief that Isabel
photographer but the photograph taken which clearly portrays Matilde
Gabriel dictated her will without any note or document to Atty.
Orobia herself, her co-witnesses Celso Gimpaya. " Further, the
Paraiso;" that the trial court's conclusion that Matilde Orobia could not
respondent Court correctly held: "The trial court gave undue
have witnessed anybody signing the alleged will or that she could not
importance to the picture takings, jumping therefrom to the conclusion
have witnessed Celso Gimpaya and Maria Gimpaya sign the same or
that the will was improperly executed. The evidence however, heavily
that she witnessed only the deceased signing it, is a conclusion based
points to only one occasion of the execution of the will on April 15,
not on facts but on inferences; that the trial court gave undue
1961 which was witnessed by Matilde Orobia, Celso Gimpaya and
importance to the picture-takings, jumping therefrom to the conclusion
Maria Gimpaya. These witnesses were quite emphatic and positive
that the will was improperly executed and that there is nothing in the
when they spoke of this occasion. Hence, their Identification of some
entire record to support the conclusion of the court a quo that the will
photographs wherein they all appeared along with Isabel Gabriel and
signing occasion was a mere coincidence and that Isabel Gabriel made
Atty. Paraiso was superfluous."
an appointment only with Matilde Orobia to witness the signing of her
will, then it becomes the duty of the appellate court to reverse findings
Continuing, the respondent Court declared: "It is true that the second of fact of the trial court in the exercise of its appellate jurisdiction over
picture-taking was disclosed at the cross examination of Celso the lower courts.
Gimpaya. But this was explained by Atty. Paraiso as a reenactment of
the first incident upon the insistence of Isabel Gabriel. Such
Still the petitioner insists that the case at bar is an exception to the
reenactment where Matilde Orobia was admittedly no longer present
rule that the judgment of the Court of Appeals is conclusive as to the
was wholly unnecessary if not pointless. What was important was that
facts and cannot be reviewed by the Supreme Court. Again We agree
the will was duly executed and witnessed on the first occasion on April
with the petitioner that among the exceptions are: (1) when the
15, 1961 , " and We agree with the Court's rationalization in
conclusion is a finding grounded entirely on speculations, surmises or
conformity with logic, law and jurisprudence which do not require
conjectures; (2) when the inference is manifestly mistaken, absurd or
picture-taking as one of the legal requisites for the execution or
impossible; (3) when there is a grave abuse of discretion; (4) when
probate of a will.
the presence of each other as required by law. " Specifically, We affirm
that on April 15, 1961 the testatrix Isabel Gabriel, together with
Petitioner points to alleged grave contradictions, evasions and Matilde Orobia, Celso Gimpaya and his wife Maria Gimpaya, and a
misrepresentations of witnesses in their respective testimonies before photographer proceeded in a car to the office of Atty. Cipriano Paraiso

56
Wills and Succession Case Digests
at the Bank of P.I. Building, Manila in the morning of that day; that on Appeals, in making its findings, went beyond the issues of the case
the way, Isabel Gabriel obtained a medical certificate from one Dr. and the same is contrary to the admissions of both appellant and
Chikiamko which she gave to Atty. Paraiso upon arriving at the latter's appellee. (Roque vs. Buan, et al., G.R. No. L-22459, Oct. 31, 1967;
office and told the lawyer that she wanted her will to be made; that Ramos vs. Pepsi Cola Bottling Co., G.R. No. L-22533, Feb. 9, 1967;
Atty. Paraiso asked Isabel Gabriel to dictate what she wanted to be Hilarion Jr. vs. City of Manila, G.R. No. L-19570; Sept. 14, 1967).
written in the will and the attorney wrote down the dictation of Isabel
Gabriel in Tagalog, a language known to and spoken by her; that Atty.
Petitioner's insistence is without merit. We hold that the case at bar
Paraiso read back to her what he wrote as dictated and she affirmed
does not fall within any of the exceptions enumerated above. We
their correctness; the lawyer then typed the will and after finishing the
likewise hold that the findings of fact of the respondent appellate court
document, he read it to her and she told him that it was alright; that
are fully supported by the evidence on record. The conclusions are
thereafter, Isabel Gabriel signed her name at the end of the will in the
fully sustained by substantial evidence. We find no abuse of discretion
presence of the three witnesses Matilde Orobia, Celso Gimpaya and
and We discern no misapprehension of facts. The respondent Court's
Maria Gimpaya and also at the left-hand margin of each and every
findings of fact are not conflicting. Hence, the well-established rule
page of the document in the presence also of the said three witnesses;
that the decision of the Court of Appeals and its findings of fact are
that thereafter Matilde Orobia attested the will by signing her name at
binding and conclusive and should not be disturbed by this Tribunal
the end of the attestation clause and at the left-hand margin of pages
and it must be applied in the case at bar in its full force and effect,
1, 2, 3 and 5 of the document in the presence of Isabel Gabriel and
without qualification or reservation. The above holding simply
the other two witnesses, Celso Gimpaya and Maria Gimpaya; then,
synthesize the resolutions we have heretofore made in respect ' to
Celso Gimpaya signed also the will at the bottom of the attestation
petitioner's previous assignments of error and to which We have
clause and at the left-hand margin of the other pages of the document
disagreed and, therefore, rejected.
in the presence of Isabel Gabriel, Matilde Orobia and Maria Gimpaya;
that Maria Gimpaya followed suit, signing her name at the foot of the
attestation clause and at the left-hand margin of every page in the The last assignments of error of petitioner must necessarily be rejected
presence of Isabel Gabriel, Matilde Orobia and Celso Gimpaya; that by Us as We find the respondent Court acted properly and correctly
thereafter, Atty. Paraiso notarized the will as Page No. 94, Book No. and has not departed from the accepted and usual course of judicial
IV, Series of 1961, in his Notarial Register. On the occasion of the proceedings as to call for the exercise of the power of supervision by
execution and attestation of the will, a photographer took pictures, one the Supreme Court, and as We find that the Court of Appeals did not
Exhibit "G", depicting Matilde Orobia, the testatrix Isabel Gabriel, Celso err in reversing the decision of the trial court and admitting to probate
Gimpaya, Maria Gimpaya and Atty. Paraiso, taken on said occasion of Exhibit "F", the last will and testament of the deceased Isabel Gabriel.
the signing of the will, and another, Exhibit "H", showing Matilde
Orobia signing testimony that he had earlier advised Isabel Gabriel to We rule that the respondent Court's factual findings upon its
bring with her at least the Mayor and a Councilor of Navotas, Rizal to summation and evaluation of the evidence on record is unassailable
be her witnesses for he did not know beforehand the Identities of the that: "From the welter of evidence presented, we are convinced that
three attesting witnesses until the latter showed up at his law office the will in question was executed on April 15, 1961 in the presence of
with Isabel Gabriel on April 15, 1961. Atty. Paraiso's claim which was Matilde Orobia, Celso Gimpaya and Maria Gimpaya signing and
not controverted that he wrote down in his own hand the date witnessing the same in the the will on a table with Isabel Gabriel,
appearing on page 5 of Exhibit "F" dissipates any lingering doubt that Celso Gimpaya and Maria Gimpaya sitting around the table. Atty.
he prepared and ratified the will on the date in question." Paraiso, after finishing the notarial act, then delivered the original to
Isabel Gabriel and retained the other copies for his file and notarial
It is also a factual finding of the Court of Appeals in holding that it was register. A few days following the signing of the will, Isabel Gabriel,
credible that Isabel Gabriel could have dictated the will, Exhibit "F", Celso Gimpaya and another photographer arrived at the office of Atty.
without any note or document to Atty. Paraiso as against the Paraiso and told the lawyer that she wanted another picture taken
contention of petitioner that it was incredible. This ruling of the because the first picture did not turn out good. The lawyer told her
respondent court is fully supported by the evidence on record as that this cannot be done because the will was already signed but
stated in the decision under review, thus: "Nothing in the record Isabel Gabriel insisted that a picture be taken, so a simulated signing
supports the trial court's unbelief that Isabel Gabriel dictated her will was performed during which incident Matilde Orobia was not present.
without any note or document to Atty. Paraiso. On the contrary, all the
three attesting witnesses uniformly testified that Isabel Gabriel Petitioner's exacerbation centers on the supposed incredibility of the
dictated her will to Atty. Paraiso and that other than the piece of paper testimonies of the witnesses for the proponent of the will, their alleged
that she handed to said lawyer she had no note or document. This fact evasions, inconsistencies and contradictions. But in the case at bar, the
jibes with the evidence — which the trial court itself believed was three instrumental witnesses who constitute the best evidence of the
unshaken — that Isabel Gabriel was of sound disposing memory when will making have testified in favor of the probate of the will. So has the
she executed her will. lawyer who prepared it, one learned in the law and long in the practice
thereof, who thereafter notarized it. All of them are disinterested
Exhibit "F" reveals only seven (7) dispositions which are not witnesses who stand to receive no benefit from the testament. The
complicated but quite simple. The first was Isabel Gabriel's wish to be signatures of the witnesses and the testatrix have been identified on
interred according to Catholic rites the second was a general directive the will and there is no claim whatsoever and by anyone, much less
to pay her debts if any; the third provided for P1,000.00 for her sister the petitioner, that they were not genuine. In the last and final
Praxides Gabriel Vda. de Santiago and P2,000.00 for her brother analysis, the herein conflict is factual and we go back to the rule that
Santiago Gabriel; the fourth was a listing of her 13 nephews and the Supreme Court cannot review and revise the findings of facts of
nieces including oppositor-appellee Rizalina Gabriel and the amount for the respondent Court of Appeals.
each legatee the fifth was the institution of the petitioner-appellant,
Lutgarda Santiago as the principal heir mentioning in general terms WHEREFORE, IN VIEW OF THE FOREGOING, the judgment appealed
seven (7) types of properties; the sixth disposed of the remainder of from is hereby AFFIRMED, with costs against the petitioner.
her estate which she willed in favor of appellant Lutgarda Santiago but
prohibiting the sale of such properties to anyone except in extreme
situations in which judgment is based on a misapprehension of facts; SO ORDERED.
(5) when the findings of fact are conflicting, (6) when the Court of

57
Wills and Succession Case Digests
EN BANC Applying that doctrine to the instant case, we hold that, as each and
every page used of the will bears the signatures of the testator and
the witnesses, the fact that said signatures do not all appear on the
G.R. No. L-21755 December 29, 1924
left margin of each page does not detract from the validity of the
will.lawphi1.net
In the matter of the testate estate of Antonio Mojal, deceased.
FILOMENA NAYVE, petitioner-appellee,
Turning to the second defect alleged, that is to say, the fact that the
vs.
sheets of the document are not paged with letters, suffice it to cite the
LEONA MOJAL and LUCIANA AGUILAR, opponents-appellants.
case of Unson vs. Abella (43 Phil., 494), where this court held that
paging with Arabic numerals and not with letters, as in the case before
ROMUALDEZ, J.: us, is within the spirit of the law and is just as valid as paging with
letters.
This is a proceeding for the probate of the will of the deceased Antonio
Mojal instituted by his surviving spouse, Filomena Nayve. The probate As to the proposition that the attestation clause does not state the
is opposed by Leona Mojal and Luciana Aguilar, sister and niece, number of sheets or pages of the will, which is the third defect
respectively, of the deceased. assigned, it must be noted that the last paragraph of the will here in
question and the attestation clause, coming next to it, are of the
The Court of First Instance of Albay, which tried the case, overruled following tenor:
the objections to the will, and ordered the probate thereof, holding
that the document in controversy was the last will and testament of In witness
Antonio Mojal, executed in accordance with law. From this judgment whereof, I set
the opponents appeal, assigning error to the decree of the court my hand unto
allowing the will to probate and overruling their opposition. this will here in
the town of
The will in question, Exhibit A, is composed of four sheets with written Camalig, Albay,
matter on only side of each, that is, four pages written on four sheets. Philippine
The four sides or pages containing written matter are paged "Pag. 1," Islands, this
"Pag. 2," "Pag. 3," "Pag. 4," successively. Each of the first two sides or 26th day of
pages, which was issued, was signed by the testator and the three November,
witnesses on the margin, left side of the reader. On the third page nineteen
actually used, the signatures of the three witnesses appear also on the hundred and
margin, left side of the reader, but the signature of the testator is not eighteen,
on the margin, but about the middle of the page, at the end of the will composed of
and before the attestation clause. On the fourth page, the signatures four sheets,
of the witnesses do not appear on the margin, but at the bottom of including the
the attestation clause, it being the signature of the testator that is on next:
the margin, left side of the reader. ANTONIO MOJAL

The defects attributed to the will are:


(Signed and
(a) The fact of not having been signed by the testator and the declared by the
witnesses on each and every sheet on the left margin; ( b) the fact of testator Don
the sheets of the document not being paged with letters; (c) the fact Antonio Mojal
that the attestation clause does not state the number of sheets or to be his last
pages actually used of the will; and (d) the fact that the testator does will and
not appear to have signed all the sheets in the presence of the three testament in
witnesses, and the latter to have attested and signed all the sheets in the presence of
the presence of the testator and of each other. each of us, and
at the request
As to the signatures on the margin, it is true, as above stated, that the of said testator
third page actually used was signed by the testator, not on the left Don Antonio
margin, as it was by the witnesses, but about the middle of the page Mojal, we
and the end of the will; and that the fourth page was signed by the signed this will
witnesses, not on the left margin, as it was by the testator, but about in the presence
the middle of the page and at the end of the attestation clause. of each other
and of the
testator.)
In this respect the holding of this court in the case of Avera vs. Garcia
PEDRO CARO
and Rodriguez (42 Phil., 145), is applicable, wherein the will in
SILVERIO MORCO
question was signed by the testator and the witnesses, not on the left,
ZOILO MASINAS
but right, margin. The rule laid down in that case is that the document
contained the necessary signatures on each page, whereby each page
of the will was authenticated and safeguarded against any possible As may be seen, the number of sheets is stated in said last paragraph
alteration. In that case, the validity of the will was sustained, and of the will. It is true that in the case of Uy Coque vs. Navas L.
consequently it was allowed to probate. Sioca (43 Phil., 405), it was held that the attestation clause must state
the number of sheets or pages composing the will; but when, as in the
case before us, such fact, while it is not stated in the attestation
58
Wills and Succession Case Digests
clause, appears at the end of the will proper, so that no herself." (Testigo que escribio este testamento a ruego y bajo la libre y
proof aliunde is necessary of the number of the sheets of the will, then voluntaria direccion personal de la misma testadora.) (Sgd.) Lino
there can be no doubt that it complies with the intention of the law Mendoza — "Attesting witnesses." (Testigos del testamento.) Then
that the number of sheets of which the will is composed be shown by come three signatures.
the document itself, to prevent the number of the sheets of the will
from being unduly increased or decreased.
These three signature together with that of the alleged testatrix are
written also on the left margin of the firs page or folio and on the third
With regard to the last defect pointed out, namely, that the testator page or second folio, but not on the second page or reverse side of
does not appear to have signed on all the sheets of the will in the the first page where, as is seen, the manuscript is continued, the
presence of the three witnesses, and the latter to have attested and second folio not containing anything but the date and the and of the
signed on all the sheets in the presence of the testator and of each manuscript.
other, it must be noted that in the attestation clause above set out it is
said that the testator signed the will "in the presence of each of the
Under these, conditions the instrument was impugned by a sister of
witnesses" and the latter signed "in the presence of each other and of
the alleged testatrix and after the taking of the declaration of the
the testator." So that, as to whether the testator and the attesting
authors of the signatures which appear three times and in different
witnesses saw each other sign the will, such a requirement was clearly
parts of the manuscript, the court declared that the document
and sufficiently complied with. What is not stated in this clause is
attached to the record could not be allowed as a will.
whether the testator and the witnesses signed all the sheets of the
will.
Certain person who allege themselves to be legatees appealed jointly
with the lawyer for the petitioner.
The act of the testator and the witnesses seeing reciprocally the
signing of the will is one which cannot be proven by the mere
exhibition of the will unless it is stated in the document. And this fact And upon considering the case on appeal, this court decides:
is expressly stated in the attestation clause now before us. But the fact
of the testator and the witnesses having signed all the sheets of the That, in conformity with Act No. 2645, amendatory to section 618 of
will may be proven by the mere examination of the document, the Code of Civil Procedure, the concluding part of the will does not
although it does not say anything about this, and if that is the fact, as express what that law, under pain of nullity, requires. Section 618, as
it is in the instant case, the danger of fraud in this respect, which is amended, says: "The attestation shall state the number of sheets or
what the law tries to avoid, does not exist. pages used upon which the will is written . . . ." None of these
requirements appear in the attesting clause at the end of the
Therefore, as in the instant case the fact that the testator and the document presented. The second page, i.e., what is written on the
witnesses signed each and every page of the will is proven by the reverse side of the first, engenders the doubt whether what is written
mere examination of the signatures in the will, the omission to thereon was ordered written by the alleged testatrix or was
expressly state such evident fact does not invalidate the will nor subsequently added by the same hand that drew the first page and the
prevent its probate. date that appears on the third. With this non-fulfillment alone of Act
No. 2645 it is impossible to allow the so-called will which violates said
law.
The order appealed from is affirmed with the costs against the
appellants. So ordered.
That besides this violation there is another as evident as the
preceding. Said Act No. 2645 provides: "The testator or the person
EN BANC
requested by him to write his name and the instrumental witnesses of
the will shall also sign, as aforesaid, each and every page thereof, on
G.R. No. L-15025 March 15, 1920 the left margin, and said pages shall be numbered correlatively in
letters placed on the upper part of each sheet." The English text differs
from the Spanish text: the former say only pages (paginas) while the
In the matter of the estate of REMIGIA SAGUINSIN,
latter puts (hojas). "Hoja," according to the Diccionario de la
deceased.
Academia, "is with respect to books or notebooks folio." According to
ARCADIO DEL ROSARIO, applicant-appellant,
the same dictionary "pagina (page) is each of one of the two faces or
JOSE A. DEL PRADO, ET. AL., legatees-appellants,
planes of the leaf of a book or notebook; that which is written or
vs.
printed on each page, for example I have read only two pages of this
RUFINA SAGUINSIN, opponent-appellee.
book." Two pages constitute one leaf. One page represents only one-
half of one leaf. The English text requires that the signature which
ARELLANO, C.J.: guarantees the genuineness of the testament shall be placed on the
left hand margin of each page and that each page should be
There was presented in the Court of First Instance of the city of Manila numbered by letter in the upper part This requirement is entirely
for allowance an instrument which the petitioner calls the will of lacking on the second page that is, on the reverse side of the first.
Remigia Saguinsin. It is a manuscript signed by the alleged testatrix According to the old method of paging "folio 1.º y su vto." that is, first
and three witnesses on October 3, 1918, the conclusion of which says: folio and the reverse side, should have been stated, and the second
"I, the testatrix, sign in the presence of the witnesses this will written page would then have been included in the citation. By the failure to
by D. Lino Mendoza at my request and under my direction." (Yo, la comply with this requisite the law has been obviously violated. In the
testadora, firmo en presencia de los testigos este testamento que ha English text the word "pages" does not leave any room for doubt and
escrito D. Lino Mendoza a mi ruego y bajo mi direccion.)--Then follows it is invariably used in the text of the law, whereas in the Spanish text,
a signature and then these expressions: "The testatrix signed in our "hoja" and "pagina" are used indifferently as may be seen in the
presence and each of us signed in the presence of the others." (La following part which says: "el atestiguamiento hara constar el numero
testadora ha firmado en nuestra presencia y cada uno de nosotros en de hojas o paginas utiles en que esta extendido el testamento." This
presencia de los demas.) — "Witness who wrote this will at the request failure to comply with the law also vitiates the will and invalidates it, as
and under the free and voluntary personal direction of the testatrix the second page is lacking in authenticity.

59
Wills and Succession Case Digests
This is a defect so radical that there is no way by which what is written From this judgment an appeal was taken in behalf of the persons
on the reverse side of the first folio may be held valid. It is possible contesting the will, and the only errors here assigned have reference
that this document consists of only the two folios numbered 1 and 2, to the two following points, namely, first, whether a will can be
and that on the reverse side of number 2 nothing may have been admitted to probate, where opposition is made, upon the proof of a
written upon the order of the testatrix, the testament ending at the single attesting witness, without producing or accounting for the
foot of the first folio with the legacy "To my nephew Catalino Ignacio, absence of the other two; and, secondly, whether the will in question
pesos 200" (A mi sobrino Catalino Ignacio doscientos pesos) and from is rendered invalid by reason of the fact that the signature of the
that part then immediately follows folio No. 2 — "Manila a tres de testator and of the three attesting witnesses are written on the right
Octubre de mil novecientos diez y ocho.--Yo la testadora firmo en margin of each page of the will instead of the left margin.
presencia etc." (Manila, October 3, 1918, — I, the testatrix, sign in the
presence of etc.) There is nothing which guarantees all the contents of
Upon the first point, while it is undoubtedly true that an uncontested
page 2. The margin of this page is absolutely blank. there is nothing
will bay be proved by the testimony of only one of the three attesting
which gives the assurance that the testatrix ordered the insertion of all
witnesses, nevertheless in Cabang vs. Delfinado (34 Phil., 291), this
the contents of page 2. It may very well be that it was subsequently
court declared after an elaborate examination of the American and
added thereby substituting the will of the testatrix, a result for the
English authorities that when a contest is instituted, all of the attesting
prevention of which this manner of authenticity by affixing the
witnesses must be examined, if alive and within reach of the process
signature on each page and not merely on each folio was provided for
of the court.
by law. This defect is radical and totally vitiates the testament. It is not
enough that the signatures guaranteeing authenticity should appear
upon two folios or leaves; three pages having been written, the In the present case no explanation was made at the trial as to why all
authenticity of all three of them should be guaranteed with the three of the attesting witnesses were not produced, but the probable
signature of the alleged testatrix and her witnesses. The English text reason is found in the fact that, although the petition for the probate
which requires the signing of pages and not merely leaves or folios of this will had been pending from December 21, 1917, until the date
should prevail. it is so provided in section 15 of the Administrative set for the hearing, which was April 5, 1919, no formal contest was
Code (Act No. 2711). entered until the very day set for the hearing; and it is probable that
the attorney for the proponent, believing in good faith the probate
would not be contested, repaired to the court with only one of the
The judgment appealed from is affirmed, with costs of this instance
three attesting witnesses at hand, and upon finding that the will was
against the appellant.
contested, incautiously permitted the case to go to proof without
asking for a postponement of the trial in order that he might produce
EN BANC all the attesting witnesses.

G.R. No. 15566 September 14, 1921 Although this circumstance may explain why the three witnesses were
not produced, it does not in itself supply any basis for changing the
rule expounded in the case above referred to; and were it not for a
EUTIQUIA AVERA, petitioner-appellee,
fact now to be mentioned, this court would probably be compelled to
vs.
reverse this case on the ground that the execution of the will had not
MARINO GARCIA, and JUAN RODRIGUEZ, as guardian of the
been proved by a sufficient number of attesting witnesses.
minors Cesar Garcia and Jose Garcia,objectors-appellants.

It appears, however, that this point was not raised by the appellant in
STREET, J.:
the lower court either upon the submission of the cause for
determination in that court or upon the occasion of the filing of the
In proceedings in the court below, instituted by Eutiquia Avera for motion for a new trial. Accordingly it is insisted for the appellee that
probate of the will of one Esteban Garcia, contest was made by Marino this question cannot now be raised for the first time in this court. We
Garcia and Juan Rodriguez, the latter in the capacity of guardian for believe this point is well taken, and the first assignment of error must
the minors Jose Garcia and Cesar Garcia. Upon the date appointed for be declared not be well taken. This exact question has been decided
the hearing, the proponent of the will introduced one of the three by the Supreme Court of California adversely to the contention of the
attesting witnesses who testified — with details not necessary to be appellant, and we see no reason why the same rule of practice should
here specified — that the will was executed with all necessary external not be observed by us. (Estate of McCarty, 58 Cal., 335, 337.)
formalities, and that the testator was at the time in full possession of
disposing faculties. Upon the latter point the witness was corroborated
There are at least two reason why the appellate tribunals are
by the person who wrote the will at the request of the testator. Two of
disinclined to permit certain questions to be raised for the first time in
the attesting witnesses were not introduced, nor was their absence
the second instance. In the first place it eliminates the judicial criterion
accounted for by the proponent of the will.
of the Court of First Instance upon the point there presented and
makes the appellate court in effect a court of first instance with
When the proponent rested the attorney for the opposition introduced reference to that point, unless the case is remanded for a new trial. In
a single witness whose testimony tended to show in a vague and the second place, it permits, if it does not encourage, attorneys to
indecisive manner that at the time the will was made the testator was trifle with the administration of justice by concealing from the trial
so debilitated as to be unable to comprehend what he was about. court and from their opponent the actual point upon which reliance is
placed, while they are engaged in other discussions more simulated
After the cause had been submitted for determination upon the proof than real. These considerations are, we think, decisive.
thus presented, the trial judge found that the testator at the time of
the making of the will was of sound mind and disposing memory and In ruling upon the point above presented we do not wish to be
that the will had been properly executed. He accordingly admitted the understood as laying down any hard and fast rule that would prove an
will to probate. embarrassment to this court in the administration of justice in the
future. In one way or another we are constantly here considering
aspects of cases and applying doctrines which have escaped the
attention of all persons concerned in the litigation below; and this is
60
Wills and Succession Case Digests
necessary if this court is to contribute the part due from it in the The same could not be said of a case like that of Estate of
correct decision of the cases brought before it. What we mean to Saguinsin, supra, where only the leaves, or alternate pages, were
declare is that when we believe that substantial justice has been done signed and not each written page; for as observed in that case by our
in the Court of First Instance, and the point relied on for reversal in late lamented Chief Justice, it was possible that in the will as there
this court appears to be one which ought properly to have been originally executed by the testratrix only the alternative pages had
presented in that court, we will in the exercise of a sound discretion been used, leaving blanks on the reverse sides, which conceivably
ignore such question relates a defect which might have been cured in might have been filled in subsequently.
the Court of First Instance if attention had been called to it there. In
the present case, if the appellant had raised this question in the lower
The controlling considerations on the point now before us were well
court, either at the hearing or upon a motion for a new trial, that court
stated In Re will of Abangan (40 Phil., 476, 479), where the court,
would have had the power, and it would have been is duty,
speaking through Mr. Justice Avanceña, in a case where the signatures
considering the tardy institution of the contest, to have granted a new
were placed at the bottom of the page and not in the margin, said:
trial in order that all the witnesses to the will might be brought into
court. But instead of thus calling the error to the attention of the court
and his adversary, the point is first raised by the appellant in this The object of the solemnities surrounding the execution of
court. We hold that this is too late. wills is to close the door against bad faith and fraud, to
avoid substitution o will and testaments and to guarantee
their truth and authenticity. Therefore the laws on this
Properly understood, the case of Cabang vs. Delfinado, supra, contains
subject should be interpreted in such a way as to attain
nothing inconsistent with the ruling we now make, for it appears from
these primordial ends. But, on the other hand, also one must
the opinion in that case that the proponent of the will had obtained an
not lose sight of the fact that it is not the object of the law
order for a republication and new trial for the avowed purpose of
to restrain and curtail the exercise of the right to make a
presenting the two additional attesting witnesses who had not been
will. So when an interpretation already given assures such
previously examined, but nevertheless subsequently failed without any
ends, any other interpretation whatsoever, that adds nothing
apparent reason to take their testimony. Both parties in that case were
but demands more requisites entirely unnecessary, useless
therefore fully apprised that the question of the number of witnesses
and frustrative of the testator's last will, must be
necessary to prove the will was in issue in the lower court.
disregarded.

The second point involved in this case is whether, under section 618 of
In the case before us, where ingenuity could not suggest any possible
the Code of Civil Procedure, as amended by Act No. 2645, it is
prejudice to any person, as attendant upon the actual deviation from
essential to the validity of a will in this jurisdiction that the names of
the letter of the law, such deviation must be considered too trivial to
the testator and the instrumental witnesses should be written on the
invalidate the instrument.
left margin of each page, as required in said Act, and not upon the
right margin, as in the will now before us; and upon this we are of the
opinion that the will in question is valid. It is true that the statute says It results that the legal errors assigned are not sustainable, and the
that the testator and the instrumental witnesses shall sign their names judgment appealed from will be affirmed. It is so ordered, with costs
on the left margin of each and every page; and it is undeniable that against the appellants.
the general doctrine is to the effect that all statutory requirements as
to the execution of wills must be fully complied with. The same EN BANC
doctrine is also deducible from cases heretofore decided by this court.

G.R. No. L-14322 February 25, 1960


Still some details at times creep into legislative enactments which are
so trivial it would be absurd to suppose that the Legislature could have
attached any decisive importance to them. The provision to the effect In the matter of the TESTATE ESTATE OF PETRONILA TAMPOY,
that the signatures of the testator and witnesses shall be written on deceased,
the left margin of each page — rather than on the right margin — vs.
seems to be this character. So far as concerns the authentication of DIOSDADA ALBERASTINE, petitioner-appellant.
the will, and of every part thereof, it can make no possible difference
whether the names appear on the left or no the right margin, provided BAUTISTA ANGELO, J.:
they are on one or the other. In Caraig vs. Tatlonghari (R. G. No.
12558, decided March 23, 1918, not reported), this court declared a
will void which was totally lacking in the signatures required to be This concerns the probate of a document which purports to be the last
written on its several pages; and in the case of Re estate of Saguinsin will and testament of one Petronila Tampoy. After the petition was
(41 Phil., 875), a will was likewise declared void which contained the published in accordance with law and petitioner had presented oral
necessary signatures on the margin of each leaf ( folio), but not in the and documentaryevidence, the trial court denied the petition on the
margin of each page containing written matter. ground that the left hand margin of the first of the will does not bear
the thumbmark of the testatrix. Petitioner appealed from this ruling
but the Court of Appeals certified the case to us because it involves
The instrument now before us contains the necessary signatures on purely a question of law.
every page, and the only point of deviation from the requirement of
the statute is that these signatures appear in the right margin instead
of the left. By the mode of signing adopted every page and provision The facts of this case as found by the trial court as follows:
of the will is authenticated and guarded from possible alteration in
exactly the same degree that it would have been protected by being De las pruebas resulta que Petronila Tampoy, ya viuda y sin
signed in the left margin; and the resources of casuistry could be hijos, rogo a Bonigfacio Miñoza que la leyera el testamento
exhausted without discovering the slightest difference between the Exhibito A y la expicara su contenido en su casa en al calle
consequences of affixing the signatures in one margin or the other. San Miguel, del municipio de Argao, provincia de Cebu, en
19 de noviember de 1939, y lasi lo hizo Bonifacio Miñoza en
presencia de los tres testigos instrumentales, Rosario K.

61
Wills and Succession Case Digests
Chan, Mauricio de la Peña y Simeon Omboy, y despues de the signature of the three instrumental witnesses, we cannot escape
conformarse con el contendido del testamento, ella rogo a the conclusion that the same fails to comply with the law and
Bonifacio Miñoza, que escribiera su nombre al pie del therefore, cannot be admitted to probate.
testamento, en la pagina segunda, y asi lo hizo Bonifacio
Miñoza, y despues ella estampo su marca digital entra su
Wherefore, the order appealed from is affirmed, without
nombre y apelido en presencia de todos y cada uno de los
pronouncement as to costs.
tres testigos instrumentales, Rosario K. Chan, Mauricio de la
Peña y Simeon Omboy y de Bonifacio Miñoza, y despues,
Bonifacio Miñoza firmo tambien al pie del todos y cada uno EN BANC
de lo tres testigos arriba nombrados. La testadora asi como
Bonifacio Miñoza parte de la primera pagina del testamento G.R. No. 17857 June 12, 1922
qeu se halla compuesto de dos paginas. Todos y cada uno
de los tres testigos instrumentales, Rosario K. Chan,
Mauricio de la Peña y Simeon Omboy, firmaron al pie de la In re will of Josefa Zalamea y Abella, deceased.
clausula de atestiguamiento que esta escrita en la pagina PEDRO UNSON, petitioner-appellee,
segunda del testamento y en la margen izquierda de la vs.
misma pagina 2 y de la pagina primera en presencia de la ANTONIO ABELLA, ET AL., opponents-appellants.
testadora, de Bonifacio Miñoza, del abogado Kintanar y de
todos y cada uno de ellos. El testamento fue otorgado por la VILLAMOR, J.:
testadora libre y expontaneament, sin haber sido
amenazada, forzada o intimidada, y sin haberse ejercido
sobre ella influencia indebida, estando la misma en pleno On July 19, 1918, Doña Josefa Zalamea y Abella, single, 60 years old,
uso de sus facultades mentales y disfrutando de buena who was residing in the municipality of Pagsanjan, Province of Laguna,
salud. La testadore fallecio en su case en Argao en 22 de executed her last will and testament with an attached inventory of her
febrero de 1957 (Vease certificado de defuncion Exhibito B). properties, Exhibits A and A-1, in the presence of three witnesses, who
La heredera instituida en el testamento, Carmen Alberastine, signed with her all the pages of said documents. The testatrix died on
murio dos semanas despues que la testadora, o sea en 7 de the 6th of January, 1921, and, as the record shows, the executor
Marzo de 1957, dejando a su madre, la solicitante Diosdada appointed in the will, Pedro Unson, filed in the court of First Instance
Alberastine. 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 letters of
administration in his favor.
The above facts are not controverted, there being no opposition to the
probate of the will. However, the trial court denied the petition on the
ground that the first page of the will does not bear the thumbmark of To said application an opposition was presently by Antonio Abella,
the testatrix. Petitioner now prays that this ruling be set aside for the Ignacia Abella, Avicencia Abella, and Santiago Vito, alleging that the
reason that, although the first page of the will does not bear the supposed will of the deceased Zalamea was not executed in conformity
thumbmark of the testatrix, the same however expresses her true with the provinces of the law, inasmuch as it was not paged
intention to givethe property to her whose claims remains undisputed. correlatively in letters, nor was there any attestation clause in it, nor
She wishes to emphasize that no one has filed any to the opposition to was it signed by the testatrix and the witnesses in the presence of
the probate of the will and that while the first page does not bear the each other.
thumbmark of the testatrix, the second however bears her thumbmark
and both pages were signed by the three testimonial witnesses. Trial having been held, the judge a quo overruled the opposition of the
Moreover, despite the fact that the petition for probate is unoppossed, contestants, and ordered the probate of the will, Exhibit A, and the
the three testimonial witnesses testified and manifested to the court inventory, Exhibit A-1, holding that both documents contained the true
that the document expresses the true and voluntary will of the and last will of the deceased Josefa Zalamea.
deceased.
From the judgment of the court below, the contestants have appealed,
This contention cannot be sustained as it runs counter to the express and in their brief they assign three errors, which, in their opinion,
provision of the law. Thus, Section 618 of Act 190, as amended, justify the reversal of the judgment appealed from.
requires that the testator sign the will and each and every page
thereof in the presence of the witnesses, and that the latter sign the
will and each and every page thereof in the presence of the testator The first error assigned by the appellants as committed by the court
and of each other, which requirement should be expressed in the below is its finding to the effect that Exhibit A, said to be the will of
attestation clause. This requirement is mandatory, for failure to comply the deceased Josefa Zalamea, was executed with all the solemnities
with it is fatal to the validity of the will (Rodriguez vs. Alcala, 55 Phil., required by the law.
150). Thus, it has been held that "Statutes prescribing the formalities
to be observed in the execution of wills are very strictly construed. As The arguments advanced by appellants' counsel in support of the first
stated in 40 Cyc., at page 1097, 'A will must be executed in assignment of error tend to impeach the credibility of the witnesses for
accordance with the statutory requirements; otherwise it is entirely the proponent, specially that of Eugenio Zalamea. We have made a
void.' All these requirements stand as of equal importance and must be careful examination of the evidence, but have not found anything that
observed, and courts cannot supply the defective execution of a will. would justify us in disturbing the finding of the courta quo. The
No power or discretion is vested in them, either to superadd other attesting witnesses, Eugenio Zalamea and Gonzalo Abaya, clearly
conditions or dispence with those enumerated in the statutes" (Uy testify that together with the other witness to the will, Pedro de Jesus,
Coque vs. Navas L. Sioca, 43 Phil., 405, 407; See also Saño vs. they did sign each and every page of the will and of the inventory in
Quintana, 48 Phil., 506; Gumban vs. Gorecho, 50 Phil., 30; Quinto vs. the presence of each other and of the testatrix, as the latter did
Morata, 54 Phil., 481). likewise sign all the pages of the will and of the inventory in their
presence.
Since the will in question suffers from the fatal defect that it does not
bear the thumbmark of the testatrix on its first page even if it bears
62
Wills and Succession Case Digests
In their brief the appellants intimate that one of the pages of the will pending from December 21, 1917, until the date set for the
was not signed by the testatrix, nor by the witnesses on the day of the hearing, which was April 5, 1919, no formal contest was
execution of the will, that is, on the 19th of July, 1918, basing their entered until the very day set for the hearing; and it is
contention on the testimony of Aurelio Palileo, who says that on one probable that the attorney for the • proponent, believing in
occasion Gonzalo Abaya told him that one of the pages of the will had good faith that probate would not be contested, repaired to
not been signed by the witnesses, nor by the testatrix on the day of its the court with only one of the three attesting witnesses at
execution. Palileo's testimony is entirely contradicted by Gonzalo Abaya hand, and upon finding that the will was contested,
not only in the direct, but in the rebuttal, evidence as well. To our incautiously permitted the case to go to proof without asking
mind, Palileo's testimony cannot prevail over that of the attesting for a postponement of the trial in order that he might
witnesses, Gonzalo Avaya and Eugenio Zalamea. The appellants produce all the attesting witnesses.
impeach the credibility of Eugenio Zalamea, for having made a sworn
declaration before the justice of the peace of Santa Cruz, Laguna,
Although this circumstance may explain why the three
before the trial of this case, to the effect that he was really one of the
witnesses were not produced, it does not in itself supply any
witnesses to the will in question, which fact was corroborated by
basis for changing the rule expounded in the case above
himself at the trial. The appellants take Zalamea's testimony in
referred to; and were it not for a fact now to be mentioned,
connection with the dismissal of a criminal case against a nephew of
this court would probably be compelled to reverse this case
his, in whose success he was interested, and infer from this fact the
on the ground that the execution of the will had not been
partiality of his testimony. We deem this allegation of little importance
proved by a sufficient number of attesting witnesses.
to impeach the credibility of the witness Zalamea, especially because
his testimony is corroborated by the other attesting witness. Gonzalo
Abaya, and by attorney Luis Abaya, who had prepared the testament It appears, however, that this point was not raised by the
at the instance of the testatrix. The foregoing is sufficient for us to appellant in the lower court either upon the submission of
conclude that the first assignment of error made by the appellants is the cause for determination in that court or upon the
groundless. occasion of the filing of the motion for a new trial.
Accordingly it is insisted for the appellee that this question
cannot now be raised for t he first time in this court. We
The appellants contend that the court below erred in admitting the will
believe this point is well taken, and the first assignment of
to probate notwithstanding the omission of the proponent to produce
error must be declared not to be well taken. This exact
one of the attesting witnesses.
question has been decided by the Supreme Court of
California adversely to the contention of the appellant, and
At the trial of this case the attorneys for the proponent stated to the we see no reason why the same rule of practice should not
court that they had necessarily to omit the testimony of Pedro de be observed by us. (Estate of McCarty, 58 Cal., 335, 337.)
Jesus, one of the persons who appear to have witnessed the execution
of the will, for there were reasonable grounds to believe that said
There are at least two reasons why the appellate tribunals
witness was openly hostile to the proponent, inasmuch as since the
are disinclined to permit certain questions to be raised for
announcement of the trial of the petition for the probate of the will,
the first time in the second instance. In the first place it
said witness has been in frequent communication with the contestants
eliminates the judicial criterion of the Court of First Instance
and their attorney, and has refused to hold any conference with the
upon the point there presented and makes the appellate
attorneys for the proponent. In reply to this, the attorney for the
court in effect a court of first instance with reference to that
contestants, said to the court, "without discussing for the present
point, unless the case is remanded for a new trial. In the
whether or not in view of those facts (the facts mentioned by the
second place, it permits, if it does not encourage, attorneys
attorneys for the petitioner), in the hypothesis that the same are
to trifle with the administration of justice by concealing from
proven, they are relieved from producing that witness, for while it is a
the trial court and from their opponent the actual point upon
matter not decided, it is a recognized rule that the fact that a witness
which reliance is placed, while they are engaged in other
is hostile does not justify a party to omit his testimony; without
discussions more simulated than real. These considerations
discussing this, I say, I move that said statement be stricken out, and
are, we think, decisive.
if the proponent wants these facts to stand to stand in the record, let
him prove them." The court a quo ruled, saying, "there is no need."
In ruling upon the point above presented we do not wish to
be understood as laying down any hard and fast rule that
To this ruling of the court, the attorney for the appellants did not take
would prove an embarrassment to this court in the
any exception.
administration of justice in the future. In one way or another
we are constantly here considering aspects of cases and
In the case of Avera vs. Garcia and Rodriguez (42 Phil., 145), recently applying doctrines which have escaped the attention of all
decided by this court, in deciding the question whether a will can be persons concerned in the litigation below; and this is
admitted to probate, where opposition is made, upon the proof of a necessary if this court is to contribute the part due from it in
single attesting witness, without producing or accounting for the the correct decision of the cases brought before it. What we
absence of the other two, it was said; "while it is undoubtedly true that mean to declare is that when we believe that substantial
an uncontested will may be proved by the testimony of only one of the justice has been done in the Court of First Instance, and the
three attesting witnesses, nevertheless in Cabang vs. Delfinado (34 point relied on for reversal in this court appears to be one
Phil., 291), this court declared after an elaborate examination of the which ought properly to have been presented in that court,
American and English authorities that when a contest is instituted, all we will in the exercise of a sound discretion ignore such
of the attesting witnesses must be examined, if alive and within reach question upon appeal; and this is the more proper when the
of the process of the court. question relates to a defect which might have been cured in
the Court of First Instance if attention had been called to it
there. In the present case, if the appellant had raised this
In the present case no explanation was made at the trial as
question in the lower court, either at the hearing or upon a
to why all three of the attesting witnesses were not
motion for a new trial, that court would have had the power,
produced, but the probable reason is found in the fact that,
and it would have been its duty, considering the tardy
although the petition for the probate of this will had been
63
Wills and Succession Case Digests
institution of the contest, to have granted a new trial in And the attestation clause is as follows:
order that all the witnesses to the will might be brought into
court. But instead of thus calling the error to the attention of
The foregoing will composed of ten folios including this one
the court and his adversary, the point is first raised by the
whereunto we have affixed our signatures, as well as the
appellant in this court. We hold that this is too late.
inventory of the properties of Doña Josefa Zalamea y Abella,
was read to Doña Josefa Zalamea y Abella, and the latter
Properly understood, the case of Cabang vs. Delfinado, affixed her name to the last, and each and every page of
supra, contains nothing inconsistent with the ruling we now this will and inventory composed of ten folios in our
make, for it appears from the opinion in that case that the presence; and she declared this to be her last will and
proponent of the will had obtained an order for a testament and at her request we have affixed hereunto our
republication and new trial for the avowed purpose of respective signatures in her presence and in the presence of
presenting the two additional attesting witnesses who had each other as witnesses to the will and the inventory this
not been previously examined, but nevertheless 19th of July, 1918, at Pagsanjan, Laguna, P.I.
subsequently failed without any apparent reason to take
their testimony. Both parties in that case were therefore fully
(Sgd.) GONZALO ABAYA,
apprised that the question of the number of witnesses
EUGENIO ZALAMEA,
necessar to prove the will was in issue in the lower court.
PEDRO DE JESUS.

In the case at bar, we do not think this question properly to have been
In view of the fact that the inventory is referred to in the will as an
raised at the trial, but in the memorandum submitted by the attorney
integral part of it, we find that the foregoing attestation clause is in
for the appellants to the trial court, he contended that the will could
compliance with section 1 of Act No. 2645, which requires this
not be admitted to probate because one of the witnesses to the will
solemnity for the validity of a will, and makes unnecessary any other
was not produced, and that the voluntary non-production of this
attestation clause at the end of the inventory.
witness raises a presumption against the pretension of the proponent.
The trial court found that the evidence introduced by the proponent,
consisting of the testimony of the two attesting witnesses and the As to the paging of the will in Arabic numerals, instead of in letters, we
other witness who was present at the execution, and had charge of adhere to the doctrine announced in the case of Aldaba vs. Roque (p.
the preparation of the will and the inventory, Exhibits A and A-1, was 378, ante), recently decided by this court. In that case the validity of
sufficient. As announced in Cabang vs. Delfinado, supra, the general the will was assailed on the ground that its folios were paged with the
rule is that, where opposition is made to the probate of a will, the letters A, B, C, etc., instead of with the letters "one," two," "three,"
attesting witnesses must be produced. But there are exceptions to this etc. It was held that this way of numbering the pages of a will is in
rule, for instance, when a witness is dead, or cannot be served with compliance with the spirit of the law, inasmuch as either one of these
process of the court, or his reputation for truth has been questioned or methods indicates the correlation of the pages and serves to prevent
he appears hostile to the cause of the proponent. In such cases, the the abstraction of any of them. In the course of the decision, we said:
will may be admitted to probate without the testimony of said witness, "It might be said that the object of the law in requiring that the paging
if, upon the other proofs adduced in the case, the court is satisfied be made in letters is to make falsification more difficult, but it should
that the will has been duly executed. Wherefore, we find that the non- be noted that since all the pages of the testament are signed at the
production of the attesting witness, Pedro de Jesus, as accounted for margin by the testatrix and the witnesses, the difficulty of forging the
by the attorney for the proponent at the trial, does not render void the signatures in either case remains the same. In other words the more
decree of the court a quo, allowing the probate. or less degree of facility to imitate the writing of the letters A, B, C,
etc., does not make for the easiness to forge the signatures. And as in
the present case there exists the guaranty of the authenticity of the
But supposing that said witness, when cited, had testified adversely to
testament, consisting in the signatures on the left margins of the
the application, this would not by itself have change the result reached
testament and the paging thereof as declared in the attestation clause,
by the court a quo, for section 632 of the Code of Civil Procedure
the holding of this court in Abangan vs. Abangan (40 Phil., 476), might
provides that a will can be admitted to probate, notwithstanding that
as well be repeated:
one or more witnesses do not remember having attested it, provided
the court is satisfied upon the evidence adduced that the will has been
executed and signed in the manner prescribed by the law. "The object of the solemnities surrounding the execution of
wills is to close the door against bad faith and fraud, to
avoid substitution of wills and testaments and to guaranty
The last error assigned by the appellants is made to consist in the
their truth and authenticity. Therefore the laws on this
probate of the inventory, Exhibit A-1, despite the fact that this exhibit
subject should be interpreted in such a way as to attain
has no attestation clause in it, and its paging is made in Arabic
these primordial ends. But, on the other hand, also one must
numerals and not in letters.
not lose sight of the fact that it is not the object of the law
to restrain and curtail the exercise of the right to make a
In the third paragraph of the will, reference is made to the inventory, will. So when an interpretation whatsoever, that adds
Exhibit A-1, and at the bottom of said will, the testatrix Josefa Zalamea nothing but demands more requisites entirely unnecessary,
says: useless, and frustrative of the testator's last will, must be
disregarded."
In witness whereof, I sign this will composed of ten folios
including the page containing the signatures and the In that case the testament was written on one page, and the
attestation of the witnesses; I have likewise signed the attestation clause on another. Neither one of these pages was
inventory attached to this will composed of ten folios in the numbered in any way, and it was held: "In a will consisting of two
presence of Messrs. Gonzalo Abaya, Eugenio Zalamea, Pedro sheets the first of which contains all the testamentary dispositions and
de Jesus, in this municipality of Pagsanjan, Laguna, is signed at the bottom by the testator and three witnesses, and the
Philippine Islands, this 19th of July, 1918. second contains only the attestation clause and is signed also at the
bottom by the three witnesses it is not necessary that both sheets be

64
Wills and Succession Case Digests
further signed on their margins by the testator and the witnesses, or VILLAMOR, J.:
be paged."
It appears from the record of the case that on July 9, 1918, Maria
This means that, according to the particular case, the emission of Roque y Paraiso, the widow of Bruno Valenzuela, resident of the barrio
paging does not necessarily render the testament invalid. of Mambog, municipality of Malolos, Province of Bulacan, executed her
last will and testament in the Tagalog dialect with the help of Vicente
Platon and in the presence of three witnesses who signed the
The law provides that the numbering of the pages should be in letters
attestation clause and each of the four pages of the testament. Maria
placed on the upper part of the sheet, but if the paging should be
Roque died on December 3, 1919, and when her will was filed in court
placed in the lower part, would the testament be void for this sole
for probate, it was contested by Ludovico Roque on the ground that it
reason? We believe not. The law also provides that the testator and
had not been prepared nor executed in conformity with the
the witnesses must sign the left margin of each of the sheets of the
requirements and solemnities prescribed by law.
testament; but if they should sign on the right margin, would this fact
also annul the testament? Evidently not. This court has already held
in Avera vs. Garcia and Rodriguez (42 Phi., 145): After due proceedings had been had, the Court of First Instance of
Bulacan by its decision rendered on February 27th of the following
year, pronounced the testament in question valid, and ordered its
"It is true that the statute says that the testator and the
probate, appointing Ceferino Aldaba as the administrator of the estate.
instrumental witnesses shall sign their names on the left
margin of each and every page; and it is undeniable that the
general doctrine is to the effect that all statutory The errors assigned by the appellant are two, to wit: "That each and
requirements as to the execution of wills must be fully every folio of the said testament is not paged correlatively in letter,"
complied with. The same execution for wills must be fully and "that the said will lacks the attestation clause required by law."
complied with. The same doctrine is also deducible from
cases heretofore decided by this court."
We have examined document Exhibit 4 which is the will in question
and we find at the end thereof the following in Tagalog which
"Still some details at time creep into legislative enactments translated into English reads:
which are so trivial that it would be absurd to suppose that
the Legislature could have attached any decisive importance
This document expresses my last and spontaneous will, and
to them. The provision to the effect that the signatures of
is my last will and testament, which was drawn by the
the testator and witnesses shall be written on the left margin
lawyer, Don Vicente Platon, at my direction, and everything
of each page — rather than on the margin — seems to be of
contained in this testament has been ordained and directed
this character. So far as concerns the authentication of the
by me to said Vicente Platon in order that it might be
will, and of every part thereof, it can make no possible
embodied in this testament, and after this testament has
difference whether the names appear on the left or on the
been drawn up, I directed him to read it so that I might hear
right margin, provided they are on one or the other. In Craig
all its contents, and I have heard and understood all the
vs. Tatlonghari (G. R. No. 12558, decided March 23, 1918,
contents of this document which is my last will, wherefore,
not reported), this court declared a will void which was
and not knowing how to write, I have requested Don Vicente
totally lacking in the signatures required to be written on its
Platon to write and sign my name in my stead hereon; I
several pages; and in the case of Re Estate of Saguinsin (41
declare that this testament is composed of four sheets,
Phil., 875) a will was likewise declared void which contained
actually used, that the sheets are paged with the letter A, B,
the necessary signatures on the margin of each leaf (folio),
C, and d, and above my name I have placed the thumb
but not in the margin of each page containing written
mark of my right hand in the presence of the subscribing
matter."
witnesses, and that all the witnesses have signed in my
presence and of each other here at Malolos, Bulacan, this
We do not desire to intimate that the numbering in letters is a 9th day of the month of July, 1918; and I also declare that
requisite of no importance. But since its principal object is to give the at my request Don Vicente Platon has written my name on
correlation of the pages, we hold that his object may be attained by the left margin of all pages of this testament, in the
writing one, two, three, etc., as well as by writing A, B, C, etc. presence of the witnesses, and all the witnesses have also
signed all the pages of this testament on the left margin in
my presence and that of each other.
We see no reason why the same rule should not be applied where the
paging is in Arabic numerals, instead of in letters, as in the inventory
in question. So that, adhering to the view taken by this court in the X (Her thumb mark)
case of Abangan vs. Abangan, and followed in Aldava vs. Roque, with MARIA ROQUE Y PARAISO,
regard to the appreciation of the solemnities of a will, we find that the Per VICENTE PLATON.
judgement appealed from should be, as is hereby, affirmed with the (Sgd.) REGINO E. MENDOZA,
costs against the appellants. So ordered. Witness.

EN BANC (Sgd.) IGNACIO ANIAG,


Witness.
G.R. No. L-17304 May 22, 1922
(Sgd.) CEFERINO ALDABA.
Witness.
In re will of Maria Roque y Paraiso, deceased.
CEFERINO ALDABA, petitioner-appellee,
vs. In reality, it appears that it is the testatrix who makes the declaration
LUDOVICO ROQUE, opponent-appellant. about the points contained in the above described paragraph;
however, as the witnesses, together with the testatrix, have signed the
65
Wills and Succession Case Digests
said declaration, we are of the opinion and so hold that the words also annul the testament? Evidently not. This court has already held
above quoted of the testament constitute a sufficient compliance with in Avera vs. Garcia and Rodriguez (42 Phil., 145):lävvphì1·né+
the requirements of section 1 of Act No. 2645 which provides that:
It is true that the statute says that the testator and the
The attestation shall state the number of sheets or pages instrumental witnesses shall sign their names on the left
used, upon which the will is written, and the fact that the margin of each and every page; and it is undeniable that the
testator signed the will and every page thereof, or caused general doctrine is to the effect that all statutory
some other person to write his name, under his express requirements as to the execution of wills must be fully
direction, in the presence of three witnesses, and the latter complied with. The same doctrine is also deducible from
witnessed and signed the will and all the pages thereof in cases heretofore decided by this court
the presence of the testator and of each other.
Still some details at times creep into legislative enactments
In regard to the other assignment of error, to wit, that each of the which are so trivial that it would be absurd to suppose that
folios of the said testament is not paged correlatively in letters "one." the Legislature could have attached any decisive importance
"two," "three," etc., but only with the letters A, B, C, etc., we are of to them. The provision to the effect that the signatures of
the opinion that this method of indicating the paging of the testament the testator and witnesses shall be written on the left margin
is a compliance with the spirit of the law, since either one of the two of each page — rather than on the right margin — seems to
ways above-mentioned indicates the correlation of the pages and be of this character. So far as concerns the authentication of
serves to prevent the loss of any of them. It might be said that the the will, and of every part thereof, it can make no possible
object of the law in requiring that the paging be made in letters is to different whether the names appear on the left or on the
make falsification more difficult, but it should be noted that since all right margin, provided they are on one or the other.
the pages of the testament are signed at the margin by the testatrix In Caraig vs. Tatlonghari (R. G. No. 12558, decided March
and the witnesses, the difficulty of forging the signatures in either case 23, 1918, not reported), this court declared a will void which
remains the same. In other words the more or less degree of facility to was totally lacking in the signatures required to be written
imitate the writing of the letters A, B, C, etc., does not make for the on its several pages; and in the case of Re estate of
easiness to forge the signature. And as in the present case there exists Saguinsin (41 Phil., 875), a will was likewise declared void
the guaranty of the authenticity of the testament, consisting in the which contained the necessary signature on the margin of
signatures on the left marging of the testament and the paging thereof each left (folio), but not on the margin of each page
as declared in the attestation clause, the holding of this court in containing written matter.
Abangan vs. Abangan (40 Phil, 476), might as well be repeated:
We do not desire to intimate that the numbering in letters is a
The object of the solemnities surrounding the execution of requisite of no importance. But since its principal object is to give the
wills is to close the door against bad faith and fraud, to correlation of the pages, we hold that this object may be attained by
avoid substitution of wills and testaments and to guarantee writing "one." "two," "three," etc., well as by writing A, B, C, etc.
their truth and authenticity. Therefore the laws on this Following, therefore, the view maintained by this court in the case
subject should be interpreted in such a way as to attain ofAbangan vs. Abangan, supra, as regards the appreciation of the
these primordial ends. But, on the other hand, also one must solemnities of a testament, we decide that the judgment appealed
not lose sight of the fact that it is not the object of the law from must be, as is hereby, affirmed with costs against the appellant.
to restrain and curtail the exercise of the right to make a So ordered.
will. So when an interpretation already given assures such
ends, any other interpretation whatsoever, that adds nothing
In Re: Pilapil – I did not include this because it’s entirely written in
but demands more requisites entirely unnecesary, useless,
Spanish. 
and frustrative of the testator's last will, must be
disregarded.
EN BANC
In that case the testament was written on one page, and the
attestation clause on another. Neither one of these pages was G.R. No. L-21151 February 25, 1924
numbered in any way; and it was held:
In re will of Antonio Vergel de Dios, deceased.
In a will consisting of two sheets the first of which contains RAMON J. FERNANDEZ, petitioner-appellant,
all the testamentary dispositions and is signed at the bottom HERMELO VERGEL DE DIOS and SEVERINA JAVIER, legatees-
by the testator and three witnesses and the second contains appellants,
only the attestation clause and is signed also at the bottom vs.
by the three witnesses, it is not necessary that both sheets FERNANDO VERGEL DE DIOS, ET AL., opponents-appellees.
be further signed on their margings by the testator and the
witnesses, or be paged. ROMUALDEZ, J.:

This means that, according to the particular case, the omission of The question in this case is as to the validity of the document Exhibit A
paging does not necessarily render the testament invalid. as a will, which was propounded by Ramon J. Fernandez for probate,
and contested by Fernando Vergel de Dios and Francisco, Ricardo and
The law provides that the numbering of the pages should be in letters Virgilio Rustia, the court of First Instance of Manila having denied its
placed on the upper part of the sheet, but if the paging should be probate.
place din the lower part, would the testament be void for his sole
reason? We believe not. The law also provides that the testator and The applicant takes this appeal, assigning error to the action of the
the witnesses must sign the left margin of each of the sheets of the lower court in holding the attestation fatally defective and in not
testament; but if they should sign on the right margin, would this fact finding Act No. 2645 void.
66
Wills and Succession Case Digests
The defects attributed to the will by the contestants are as follows, to As to the numbering of the sheet containing the attestation clause, it is
wit: true that it does not appeal on the upper part of the sheet, but it does
not appear in its text, the pertinent part of which is copied hereinafter,
with the words, having reference to the number of sheets of the will,
(a) It was not sufficiently proven that the testator knew the
underscored, including the page number of the attestation:
contents of the will.

* * * We certify that the foregoing document written in


(b) The testator did not sign all the pages of the will.
Spanish, a language known by the testator Antonino Vergel
de Dios, consisting of three sheet actually used, correlatively
(c) He did not request anybody to attest the document as enumerated, besides this sheet . . . .
his last will.
If, as stated in this clause, the foregoing document consists
(d) He did not sign it in the presence of any witness. of three sheets, besides that of the clause itself, which is in singular, it
is clear that such a sheet of the attestation clause is the fourth and
(e) The witnesses did not sign it in the presence of the that the will, including said sheet, has four sheets. This description
testator, or of each other, nor with knowledge on the part of contained in the clause in question constitutes substantial compliance
the testator that they were signing his will. with the requirements prescribed by the law regarding the paging. So
it was held by this Court in the case of Abangan vs. Abangan (40 Phil.,
476), where the sheet containing the attestation, as well as the
(f ) The witnesses did not sign the attestation clause before preceding one, was also not paged. Furthermore the law, as we shall
the death of the testator. see later on, does not require that the sheet containing nothing but
the attestation clause, wholly or in part, be numbered or paged.
(g) This clause was written after the execution of the Consequently this lack of paging on the attestation sheet does not take
dispositive part of the will and was attached to the will after anything from the validity of the will.
the death of the testator.
Turning now to the question whether or not in this clause it is stated
(h) The signatures of the testator on page 3 of Exhibit A are that the testator signed on the margin of each sheet of the will, in the
not authentic. presence of the witnesses and the latter in the presence of each other,
let us see what is said in said clause on this point, and to this end its
pertinent part is hereinafter transcribed and is as follows:
The evidence sufficiently shows that when Attorney Lopez Lizo read
the will to the testator, the latter's mind was perfectly sane and he
understood it: that he signed all the pages of the will proper, although * * * and he (the testator) signed at the bottom of the
he did not sign the page containing the attestation clause; that while aforesaid will in our presence and we at his request did the
he did not personally call the witnesses, yet the latter were invited by same in his presence and in that of each other as witnesses
Attorney Lopez Lizo to act as such in his presence. The law does not to the will, and lastly, the testator, as well as we, as
require that the testator precisely be the person to request the witnesses, signed in the same manner on the left margin of
witnesses to attest his will. It was also sufficiently established in the each sheet. (Emphasis ours.)
record, beside being stated in the attestation clause, that the testator
signed the will in the presence of the three witnesses and that the The underscored phrase "in the same manner" cannot in the instant
latter, in turn, signed it in the presence of the testator and of each case mean, and it in fact means nothing, but that the testator and the
other, the testator knowing that the witnesses were signing his will; witnesses signed on the left margin of each sheet of the will "in the
that the witnesses signed the attestation clause before the death of same manner" in which they signed at the bottom thereof, that is, the
the testator; that this clause, with the names of the witnesses in blank, testator in the presence of the witnesses and the latter in the presence
was prepared before the testator signed the will, and that the sheet of the testator and of each other. This phrase in the same
containing said clause, just as those of the will proper, was a loose manner cannot, in view of the context of the pertinent part, refer to
sheet, and that all the four sheets of which the will Exhibit A was another thing, and was used here as a suppletory phrase to include
actually composed were kept together and are the very ones everything and avoid the repetition of a long and difficult one, such as
presented in this case; and finally, that the signatures of the testator what is meant by it. The same section 618 of the Code of Civil
on page 3 of said exhibit are authentic. Procedure, in order to avoid the repetition of the same long phrase
about the testator having signed in the presence of the witnesses and
It thus appearing from the record that there are no such defects as the latter in the presence of each other, resorts to a similar expression
those mentioned by the opponents, and it having been proven that the in the second paragraph and says, "as aforesaid."
testator executed said will in a language known by him and
consciously, freely and spontaneously, it would seen unnecessary to go Concerning the absolute absence of the signature of the testator from
further, and the matter might be brought to a close right here, by the sheet containing the attestation clause, this point was already
holding the will in question valid and allowable to probate, were it not decided in the above cited case of Abangan vs. Abangan, where this
for the fact that the trial court and the opponents questioned the court held that:
sufficiency and validity of the attestation clause because the sheet on
which it is written is not numbered, and it is not stated there that the
testator signed on the margin of each sheet of the will in the presence The testator's signature is not necessary in the attestation
of the three witnesses, or that the latter signed it is the presence of clause because this, as its name implies, appertains only to
the testator and of each other, and specially because said attestation the witnesses and not to the testator.
clause is not signed by the testator either at the margin or the bottom
thereof. In that case of Abangan vs. Abangan it was held that the signature of
the testator is not necessary in the attestation clause, but the theory is
not announced that such a clause is unnecessary to the validity to the
will.
67
Wills and Succession Case Digests
For this reason such doctrine does not annul the judgment in the case this section 618 of the Code which already deals with the requirements
of Uy Coque vs. Navas L. Sioca (43 Phil., 405), where in effect the for the attestation clause. This last paragraph reads thus:
doctrine, among others, was laid down that the attestation clause is
necessary to the validity of the will. One of the points on which
The attestation shall state the number of sheets or pages
greatest stress was laid in that case Uy Coque is that the requirements
used, upon which the will is written, and the fact that the
of the law regarding the number of the pages used, the signing of the
testator signed the will and every page thereof, or caused
will and of each of its pages by the testator in the presence of three
some other person to write his name, under his express
witnesses, and the attestation and signing of the will and of each of its
direction, in the presence of three witnesses, and the latter
pages by the witnesses in the presence of each other cannot be
witnessed and signed the will and all pages thereof in the
proven aliunde but by the attestation clause itself which must express
presence of the testator and of each other.
the complaince of the will with such requirements. But it was not held
in that case of Uy Coque that the signature of the testator was
necessary in the attestation clause, nor was such point discussed As may be seen this last paragraph refers to the contents of the text of
there, which was the point at issue in the case of Abangan vs. the attestation, not the requirements or signatures thereof outside of
Abangan, supra. its text. It does not require that the attestation be signed by the
testator or that the page or sheet containing it be numbered.
The appellees, however, argue that such clause in the case
of Abangan vs. Abangan begins at the bottom and on the same sheet From this analysis of our law now in force it appears:
in which the testamentary provision terminated, that is to say, the will
properly speaking. Even then if it is intended to commit First. That the will must have an attestation clause as a
misrepresentation or fraud, which are the things that with the complement, without which it cannot be probate and with
requirements of the law for the making and attesting of wills it is which only not aliunde (Uy Coque vs. Navas L. Sioca , supra)
intended to avoid, it is just the same that the clause; as in the case may the requirements to be stated in its text be proven. The
ofAbangan vs. Abangan, begins at the bottom of the will properly attestation clause must be prepared and signed, as in the
speaking, as, like the case before us, it is wholly contained in a instant case, on the same occasion on which the will is
separate sheet. The fact is that this separate sheet, containing the prepared and signed, in such a way that the possibility of
attestation clause wholly or in part, is not signed any place by the fraud, deceit or suppression of the will or the attestation
testator in the case of Abangan vs. Abangan, as it is not in the present clause be reduced to a minimum; which possibility always
case. exists, as experience shows, in spite of the many
precautions taken by the legislator to insure the true and
Section 618 of the code of Civil Procedure, as amended by Act No. free expression of one's last will.
2645, contains three paragraphs, of which the first enumerates in
general terms the requirements to be met by a will executed after said Second. That the will is distinct and different from the
Code took effect, to wit, that the language or dialect in which it is attestation, although both are necessary to the validity of
written be known by the testator, that it be signed by the latter or by the will, similar, in our opinion, to a document which is not
another person in the name of the testator by his express direction public so long as it is not acknowledged before a notary, the
and in his presence, and that it be attested and signed by three or document being a distinct and different thing from the
more credible witnesses in the presence of the testator and of each acknowledgment, each of which must comply with different
other. requisites, among which is the signature of the maker which
is necessary in the document but not in the acknowledgment
These general rules are amplified in the next two paragraphs as to the and both things being necessary to the existence of the
special requirements for the execution of the will by the testator and public document.
the signing thereof by the witnesses, with which the second paragraph
of the section deals, and as to the attestation clause treated in the Third. That the will proper must meet the requirements
third and last paragraph of said section 618. enumerated in the second paragraph of section 618 of the
Code of Civil Procedure.
For this reason the second paragraph of this section 618 says:
Fourth. That the text of the attestation clause must express
The testator or the person requested by him to write his compliance with the requirements prescribed for the will.
name and the instrumental witnesses of the will, shall also
sign, as aforesaid, each and every page thereof, on the left In the case at bar the attestation clause in question states that the
margin, and said pages shall be numbered correlatively in requirements prescribed for the will were complied with, and this is
letters placed on the upper part of each sheet. enough for it, as such attestation clause, to be held as meeting the
requirements prescribed by the law for it.
These are the solemnities that must surround the execution of the will
properly speaking, without any reference whatsoever to the attestation The fact that in said clause the signature of the testator does not
clause not treated in this second paragraph. It is in this second appear does not affect its validity, for, as above stated, the law does
paragraph which deals only with the will (without including the not require that it be signed by the testator.
attestation clause), that the signature or name of the testator and
those of the witnesses are mentioned as necessary on the left margin
of each and everyone of the sheets of the will (not of the attestation We find no merit in the assignment of error raising the question as to
clause), as well as the paging of said sheet (of the will, and not of the the validity of Act No. 2645, which is valid. For the purposes of this
attestation clause which is not yet spoken of). decision, it is not necessary to reason out this conclusion, it being
sufficient for the adjudication of this case to hold the first error
assigned by the appellants to have been demonstrated.
Now, are the signatures of the testator and the paging of the will also
necessary in the attestation clause? Let us see the last paragraph of
68
Wills and Succession Case Digests
The foregoing conclusions lead us to hold, as we do here by hold, that of the Almighty, and a recital that the testator was in full use of his
the documents Exhibit A, as the last will and testament of the testamentary faculty, — all of which, in the logical order of sequence,
deceased Antonio Vergel de Dios, meets all the requirements precede the direction for the disposition of the marker's property.
prescribed by the low now in force and therefore it must be allowed to Again, as page two contains only the two lines above mentioned, the
probate as prayed for by the petitioner. attestation clause, the mark of the testator and the signatures of the
witnesses, the other sheet can not by any possibility be taken for other
than page one. Abangan vs. Abangan,supra, and Fernandez vs. Vergel
The judgment appealed from is reversed, and it is ordered that the
de Dios, 46 Phil., 922 are decisive of this issue.
lower court proceed with the probate of the will Exhibit A in
accordance with law, without express pronouncement as to costs. So
ordered. Although not falling within the purview and scope of the first
assignment of error, the matter of the credibility of the witnesses is
assailed under this heading. On the merits we do not believe that the
EN BANC
appellant's contention deserves serious consideration. Such
contradictions in the testimony of the instrumental witnesses as are set
G.R. No. L-1787 August 27, 1948 out in the appellant's brief are incidents not all of which every one of
the witnesses can be supposed to have perceived, or to recall in the
Testacy of Sixto Lopez. JOSE S. LOPEZ, petitioner-appellee, same order in which they occurred.
vs.
AGUSTIN LIBORO, oppositor-appellant. Everyday life and the result of investigations made in the
field of experimental psychology show that the
TUASON, J.: contradictions of witnesses generally occur in the details of a
certain incident, after a long series of questioning, and far
from being an evidence of falsehood constitute a
In the Court of First Instance of Batangas the appellant opposed demonstration of good faith. Inasmuch as not all those who
unsuccessfully the probate of what purports to be the last will and witness an incident are impressed in like manner, it is but
testament (Exhibit A) of Don Sixto Lopez, who died at the age of 83 in natural that in relating their impressions they should not
Balayan, Batangas, on March 3, 1947, almost six months after the agree in the minor details; hence, the contradictions in their
document in question was executed. In the court below, the present testimony. (People vs. Limbo, 49 Phil., 99.)
appellant specified five grounds for his opposition, to wit: (1) that the
deceased never executed the alleged will; (2) that his signature
appearing in said will was a forgery; (3) that at the time of the The testator affixed his thumbmark to the instrument instead of
execution of the will, he was wanting in testamentary as well as signing his name. The reason for this was that the testator was
mental capacity due to advanced age; (4) that, if he did ever execute suffering from "partial paralysis." While another in testator's place
said will, it was not executed and attested as required by law, and one might have directed someone else to sign for him, as appellant
of the alleged instrumental witnesses was incapacitated to act as such; contends should have been done, there is nothing curious or
and it was procured by duress, influence of fear and threats and undue suspicious in the fact that the testator chose the use of mark as the
and improper pressure and influence on the part of the beneficiaries means of authenticating his will. It was a matter of taste or
instituted therein, principally the testator's sister, Clemencia Lopez, preference. Both ways are good. A statute requiring a will to be
and the herein proponent, Jose S. Lopez; and (5) that the signature of "signed" is satisfied if the signature is made by the testator's mark.
the testator was procured by fraud or trick. (De Gala vs. Gonzales and Ona, 53 Phil., 108; 28 R. C. L., 117.)

In this instance only one of these objections is reiterated, formulated With reference to the second assignment of error, we do not share the
in these words: "That the court a quo erred in holding that the opinion that the trial court communicated an abuse of discretion in
document Exhibit "A" was executed in all particulars as required by allowing the appellant to offer evidence to prove knowledge of Spanish
law." To this objection is added the alleged error of the court "in by the testator, the language in which the will is drawn, after the
allowing the petitioner to introduce evidence that Exhibit "A" was petitioner had rested his case and after the opponent had moved for
written in a language known to the decedent after petitioner rested his dismissal of the petition on the ground of insufficiency of evidence. It
case and over the vigorous objection of the oppositor. is within the discretion of the court whether or not to admit further
evidence after the party offering the evidence has rested, and this
discretion will not be reviewed except where it has clearly been
The will in question comprises two pages, each of which is written on abused. (64 C. J., 160.) More, it is within the sound discretion of the
one side of a separate sheet. The first sheet is not paged either in court whether or not it will allow the case to be reopened for the
letters or in Arabic numerals. This, the appellant believes, is a fatal further introduction of evidence after a motion or request for a
defect. nonsuit, or a demurrer to the evidence, and the case may be reopened
after the court has announced its intention as to its ruling on the
The purpose of the law in prescribing the paging of wills is guard request, motion, or demurrer, or has granted it or has denied the
against fraud, and to afford means of preventing the substitution or of same, or after the motion has been granted, if the order has not been
defecting the loss of any of its pages. (Abangan vs. Abangan, 40 Phil., written, or entered upon the minutes or signed. (64 C. J., 164.)
476.) In the present case, the omission to put a page number on the
first sheet, if that be necessary, is supplied by other forms of In this jurisdiction this rule has been followed. After the parties have
identification more trustworthy than the conventional numerical words produced their respective direct proofs, they are allowed to offer
or characters. The unnumbered page is clearly identified as the first rebutting evidence only, but, it has been held, the court, for good
page by the internal sense of its contents considered in relation to the reasons, in the furtherance of justice, may permit them to offer
contents of the second page. By their meaning and coherence, the first evidence upon their original case, and its ruling will not be disturbed in
and second lines on the second page are undeniably a continuation of the appellate court where no abuse of discretion appears. (Siuliong
the last sentence of the testament, before the attestation clause, and Co. vs. Ylagan, 43 Phil., 393; U. S. vs. Alviar, 36 Phil., 804.) So,
which starts at the bottom of the preceding page. Furthermore, the generally, additional evidence is allowed when it is newly discovered,
unnumbered page contains the caption "TESTAMENTO," the invocation or where it has been omitted through inadvertence or mistake, or
69
Wills and Succession Case Digests
where the purpose of the evidence is to the evidence is to correct It is pointed out, however, that the attestation clause states that the
evidence previously offered. (I Moran's Comments on the Rules of testatrix declared in the presence of the three witnesses that the
Court, 2d ed., 545; 64 C. J., 160-163.) The omission to present document in question was her last will or testament, and it is argued
evidence on the testator's knowledge of Spanish had not been that this testament taken together with the preceding clause which
deliberate. It was due to a misapprehension or oversight. reads: "En fe de todo lo cual firmo con mi nombre este mi testamento
o ultima voluntad, escrito en dialecto visayo que es el dialecto que
poseo y hablo, en Inayauan, comprension de Cawayan, Filipinas, hoy a
Although alien to the second assignment of error, the appellant
16 de Agosto de 1943," expresses the idea that the testatrix signed
impugns the will for its silence on the testator's understanding of the
the will in the presence of the witnesses. The argument is not only far-
language used in the testament. There is no statutory requirement
fetched but it also overlooks the fact that it is in the attestation clause
that such knowledge be expressly stated in the will itself. It is a matter
signed the will in the presence of the subscribing witnesses, since that
that may be established by proof aliunde. This Court so impliedly ruled
is one of the statements by law required to be embodied in the
in Gonzales vs. Laurel, 46 Phil., 781, in which the probate of a will
attestation clause. The words above quoted, which, in the will in
written in Tagalog was ordered although it did not say that the testator
question, are written above the signature of the testator and come
knew that idiom. In fact, there was not even extraneous proof on the
before the attestation clause, do not form a part of the latter. By the
subject other than the fact that the testator resided in a Tagalog
attestation clause is meant "that clause wherein the witnesses certify
region, from which the court said "a presumption arises that said Maria
that the instrument has been executed before them, and the manner
Tapia knew the Tagalog dialect.
of the execution of the same." (Black, Law Dictionary.) It is signed not
by the testator but by the witnesses, for it is a declaration made by the
The order of the lower court ordering the probate of the last will and witnesses and not by the testator. And the law is clear that it is the
testament of Don Sixto Lopez is affirmed, with costs. attestation clause that must contain a statement, among others, that
the testator signed the will in the presence of the witnesses. Without
EN BANC that statement, the attestation clause is fatally defective.

G.R. No. L-2415 July 31, 1950 This defect is not cured by proof aliunde or even by a judicial finding
based upon such proof that the testator did in fact sign the will in the
presence of the subscribing witnesses. That is a fact required by law to
Testatee estate of the late Paula Toray. EUSTAQUIA be stated in the attestation clause itself, and it is settled that where it
TENEFRANCIA, petitioner-appellant, is not so stated it cannot be established by evidence aliunde, and that
vs. where such evidence has been admitted, even without opposition, it
ROSA ABAJA, oppositor-appellee. should not be given the effect intended. (Uy Coque vs. Navas L. Sioca,
43 Phil., 405; Quinto vs. Morata, 54 Phil., 481.) In the case last cited
REYES, J.: this Court had the following to say:

This is an appeal from an order of the Court of First Instance of It is vigorously contended on behalf of the appellant, that
Negros Occidental denying probate of a will. the alleged defect of the attestation clause1 has been cured
by oral evidence, which was admitted without opposition on
the part of the appellee. This contention cannot be
The will in question purports to have been executed in August, 1943, sustained. The doctrine of this court with reference to
by Paula Toray, who died the following month. Presented for probate statute of frauds is not applicable to wills. The statute of
by one of the legatees, the herein appellant Eustaquia Tenefrancia, it frauds relates to contracts and agreements. The subject of
was opposed by Rosa Abaja, daughter of the deceased Eulogia Abaja, wills and testaments and the formalities surrounding their
instituted heir in an earlier will executed by the same testatrix and her execution are governed by separate and specific provisions
deceased husband. The lower court disallowed the will on the ground of Act No. 190.
that it was not executed in accordance with law in that the attestation
clause did not state that the testatrix signed the will in the presence of
the instrumental witnesses. An examination of section 618 of Act No. 190, prior to, and
after its amendment by Act No. 2645, shows clearly that the
legislature intended to exclude evidence aliunde tending to
Among the formalities prescribed by law (section 618 of Act 190, as establish that the will has been executed and attested in
amended by Act No. 2645) to a valid will is the requirement that the conformity with the requirements of the law, where such
attestation clause should state "the fact that the testator signed the compliance does not appear on the face of the will itself.
will and every page thereof, or caused some other person to write his Prior to its amendments, section 618 contained the following
name, under his express direction, in the presence of three witnesses." saving clause: "But the absence of such form of attestation
This requirement was not complied with in the present case, for the shall not render the will invalid if is as proven that the will
attestation clause fails to state that fact. This is obvious from the was in fact signed and attested as in this section provided."
following agreed translation of the said attestation clause:

The most outstanding feature of the amendment of said


Nosotros Antonio T. Abanilla, Juan G. Mission y Juan Tullao section 618 by Act No. 2645 is the elimination of said saving
todos vecinos del Barrio Inayauan, Cawayan, Negros clause and the greater emphasis laid on the formalities as to
occidental, Filipinas, testigos de este testamento, signatures and the attestation clause. There can be no
Testificamos que Paula Toray, la testadora que declaro que doubt, therefore, that the intention of the legislature, in
este es su testamento o ultima voluntad y que cuando eleminating said clause, was to exclude
otorgo este testamento, ella estaba en su sano y cabal evidence aliunde, and that where such evidence was
juicio, habiendo hecho constar el mismo, en dos pliegos de admitted without opposition, it should not be given effect
papel, firmados por nosotros en presencia de la testadora, y and thus defeat the manifest intention of the legislation in
de nosotros tres testigos en todos los peligros de este amending said section 618.
testamento.

70
Wills and Succession Case Digests
Section 618 of Act No. 190, as amended, should be given a de los demas y de la del mismo testador Valerio Leynez . El
strict interpretation. In the case of Uy Coque vs. Navas L. testamento consta de los (2) paginas solamente.
Sioca (43 Phil., 405) this court, speaking of the construction
to be given to said section, said:
The question presented is, under section 618, as amended, of
the Code of Civil Procedure, is this attestation clause legally sufficient?
Statutes prescribing the formalities to be observed The pertinent portion of this section of the Code is as follows:
in the execution of wills are very strictly construed.
As stated in 40 Cyc., at page 1097, "A will must be
. . . the attestation shall state the number of sheets
executed in accordance with the statutory
or pages used, upon which the will is written, and the fact
requirements; otherwise it is entirely void. All
that the testator signed the will and every page thereof, or
these requirements stand as of equal importance
caused some other person to write his name, under his
and must be observed, and courts cannot supply
express direction, in the presence of three witnesses, an the
the defective execution of a will. No power or
later witnessed and signed the will and all pages thereof in
discretion is vested in them, either to superadd
the presence of the testator and of each other.
other conditions or dispense with those
enumerated in the statutes. (Uy Coque vs. Navas
L. Sioca, 43 Phil., 405, 407.) The alleged defect in the attestation clause of the controverted
will is that it fails to state that the testator and the three witnesses
signed each and every page of the will in the manner prescribed by
It is also urged that the lower court should not have entertained the
law, because it merely states "firmanos el presente cada uno en
opposition of Rosa Abaja, who had no legal interest in the proceeding.
presencia de los otros, o de los demas y de la del mismo testador
But it does not appear that timely objection to the said opposition was
Valerio Leynez." In deciding this question the Court of Appeals,
made in the court below, and it is settled that the mere fact that a
however, ruled:
stranger has been permitted to oppose the allowance of a will is not a
reversible error and does not invalidate the proceedings where no
objection is interposed by any of the parties in interest. (Paras vs. A la luz de las jurisprudencias arriba citadas en la
Narciso, 35 Phil., 244.) It is true that in the course of Rosa Abaja's clausada de atestiguamiento discutida en el asunto de autos
declaration, counsel for appellant made some manifestation tending to no encontramos un cumplimiento sustantial del requisito
question the admissibility of her testimony. But it is not clear that the exigido por la ley, de que en ella se haga constar que el
remark was meant to be an objection to the opposition itself. And in testador y los testigos han firmado unos en presencia de
any event, even without opposition, the lower court could not have otros, todas y cada una de las paginas usadas del
legally allowed the will in question, for under section 618 of Act No. testamento, requisito que no se puede establecer por medio
190, as amended by Act No. 2645, no will shall be valid to pass any de su prueba aliunde.
estate, real or personal., nor charge or affect the same unless the
attestation clause conforms to the requirements therein provided, and Against this conclusion of the Court of Appeals, petitioner puts
the imperactive language of the Rules of Court (Rule 77, section 9 [a]) forward the contention that it has decided a question of substance in a
directs that the will "shall be disallowed" if not executed and "attested way not probably in accord with the law and the applicable decisions
as required by law." of this court (Rule 47, paragraph e [1] of Supreme Court.) The rule of
liberal construction of the applicable law should, petitioner avers, be
In view of the foregoing, the order appealed from is affirmed, with held to apply in the case at bar, and in support of her content on she
costs against the appellant. invokes a long array of cases (Abangan vs .Abangan, 40 Phil., 476;
Avera vs. Garcia and Rodriguez, 42 Phil., 145; Aldaba vs. Roque, 43
Phil., 378; Unson vs .Abella, 43 Phil., 494; Fernandez vs. Vergel de
EN BANC
Dios, 46 Phil., 922; Nayve vs. Mojal, 47 Phil., 152; De Gala vs
.Gonzalez, 53 Phil., 104; Rey vs. Cartagena, 56 Phil., 282; Dichoso de
G.R. No. L-46097 October 18, 1939 Ticson vs. De Gorostiza, 57 Phil., 437; Sebastian vs. Paganiban, 59
Phil., 653; De Guzman vs. Celestino, G.R. No. 35273, April 25, 1932;
Policarpio vs. Baltazar, G.R. No. 36349, November 14, 1932;
TEOFILA ADEVA VIUDA DE LEYNEZ, petitioner,
Malate vs. Olea, G.R. No. 36154, December 16, 1932; In re Estate of
vs.
Jennings, 1933, G.R. No. 38758). To this line of cases those of
IGNACIO LEYNEZ, respondent.
Rodriguez vs. Yap, G.R. No. 45924, May 18, 1939, and Grey vs. Fabie,
G.R. No. 45160, May 23, 1939, may perhaps be added. Respondent,
LAUREL, J.: on the other hand, equally invokes a number of cases wherein, he
contends, the rule of strict construction was made to prevail. (Uy
This is a petition for a writ of certiorari to review the decision of Coque vs. Navas L. Sioca, 43 Phil., 405; In re Estate of Neuark, 46
the Court of Appeals affirming the decision of the Court of First Phil., 841; Saño vs.Quintana, 48 Phil., 506; Gumban vs. Gorecho, 50
Instance of Mindoro denying probate of the will of the deceased Phil., 30; Quinto vs. Morata, 54 Phil., 481; Rodriguez vs. Alcala, 55
Valerio Leynez, on the ground that its attestation clause does not Phil., 150.)
conform to the requirements section 618, as amended, of the Code of
Civil Procedure. This Court has already taken notice of these different views
within, in Dichoso de Ticson vs. De Gorostiza(57 Phil., 437, 439-440),
The attestation clause of the will is worded as follows: it frankly made the following observation : "The truth is that there
have been, noticeable in the Philippines two divergent tendencies in
the law of wills — the one being planted on strict construction and the
Suscrito y declarado por el testador Valerio Leynez, other on liberal construction. A late example of the former views may
como su ultima voluntad y testamento en presencia de todos be found in the decision in Rodriguez vs. Alcala ([1930], 55 Phil., 150),
y cada uno de nosotros, y a ruego de dicho testador, sanctioning a literal enforcement of the law. The basic case in the
firmamos el presente cada uno en presencia de los otros, o other direction, predicated on reason, is Abangan vs.
Abangan ([1919], 40 Phil., 476), oft-cited approvingly in later
71
Wills and Succession Case Digests
decisions." It is fairness to recognize the existence of opposing but demands more requisites entirely unnecessary, useless
currents of legal thought, a situation which perhaps has brought about and frustrative of the testator's last will, must be
a certain degree of confusion in this field. It is also fairness to avow, disregarded.
however, that a more careful examination of the cases will show that,
while the two tendencies mentioned in easily discernible, the conflict in
It follows that the writ of certiorari should be, as it is hereby,
many cases is more apparent than real, and the variance, if at all, in
granted and the judgment of the Court of Appeals reversed, with the
the application of the principles involved was due in some instances to
result that the controverted will, Exhibit A, of the deceased Valerio
the marked differentiation of facts and the consequent personal or
Leynez, shall be admitted to probate. So ordered, with costs against
collective criteria in particular cases.lâwphi1.nêt
the respondent-appellee. So ordered.

We have taken pains to examine the numerous cases relied


FIRST DIVISION
upon by the petitioner and those relied upon by the respondent, and
while we do not deem it necessary to make a detailed comparison
between them, we find no difficulty in selecting what we consider is G.R. No. L-36033 November 5, 1982
the reasonable rule to apply in this case at bar. It is, of course, not IN THE MATTER OF THE PETITION FOR THE PROBATE OF THE
possible to lay down a general rule, rigid and inflexible, which would WILL OF DOROTEA PEREZ, (deceased): APOLONIO
be applicable to all cases. More than anything else, the facts and TABOADA, petitioner,
circumstances of record are to be considered in the application of any vs.
given rule. If the surrounding circumstances point to a regular HON. AVELINO S. ROSAL, as Judge of Court of First Instance
execution of the will, and the instrument appears to have been of Southern Leyte, (Branch III, Maasin),respondent.
executed substantially in accordance with the requirements of the law,
the inclination should, in the absence of any suggestion of bad faith, GUTIERREZ, JR. J.:
forgery or fraud, lean towards its admission to probate, although the
document may suffer from some imperfection of language, or other
non-essential defect. This, in our opinion, is the situation in the This is a petition for review of the orders issued by the Court of First
present case, and we, therefore, hold that the requirement that the Instance of Southern Leyte, Branch III, in Special Proceedings No. R-
attestation clause, among other things, shall state "that the testator 1713, entitled "In the Matter of the Petition for Probate of the Will of
signed the will and every page thereof in the presence of three Dorotea Perez, Deceased; Apolonio Taboada, Petitioner", which denied
witnesses, and that the witnesses signed the will in the presence of the probate of the will, the motion for reconsideration and the motion
the testator and of each other," is sufficiently complied with, it for appointment of a special administrator.
appearing that the testator and the witnesses signed each and every
page of the will according to the stipulation of the parties. (Record on In the petition for probate filed with the respondent court, the
Appeal, stipulation, pp. 10, 14, 15); and this fact being shown in the petitioner attached the alleged last will and testament of the late
will itself, and there being, furthermore, no question raised as to the Dorotea Perez. Written in the Cebuano-Visayan dialect, the will
authenticity of the signature of the testator and the witnesses. consists of two pages. The first page contains the entire testamentary
dispositions and is signed at the end or bottom of the page by the
An attestation clause is made for the purpose of preserving, in testatrix alone and at the left hand margin by the three (3)
permanent form, a record of the facts attending the execution of the instrumental witnesses. The second page which contains the
will, so that in case of failure of the memory of the subscribing attestation clause and the acknowledgment is signed at the end of the
witnesses, or other casualty, they may still be proved. (Thompson on attestation clause by the three (3) attesting witnesses and at the left
Wills, 2 ed., sec. 132.) A will, therefore, should not be rejected where hand margin by the testatrix.
its attestation clause serves the purpose of the law. The law-making
body, in recognition of the dangers to which testamentary dispositions Since no opposition was filed after the petitioner's compliance with the
are apt to be subject in the hands of unscrupulous individuals, has requirement of publication, the trial court commissioned the branch
surrounded the execution of the wills with every solemnity deemed clerk of court to receive the petitioner's evidence. Accordingly, the
necessary to safeguard it. This purpose was indicated when our petitioner submitted his evidence and presented Vicente Timkang, one
legislature provided for the exclusion of evidence aliunde to prove the of the subscribing witnesses to the will, who testified on its
execution of the will. We should not, however, attribute the prohibition genuineness and due execution.
as indicative of a desire to impose unreasonable restraint or beyond
what reason and justice permit. It could not have been the intention of
the legislature in providing for the essential safeguards in the The trial court, thru then Presiding Judge Ramon C. Pamatian issued
execution of a will to shackle the very right of testamentary disposition the questioned order denying the probate of the will of Dorotea Perez
which the law recognizes and holds sacred. The pronouncement of this for want of a formality in its execution. In the same order, the
Court in Abangan vs. Abangan (40 Phil., 476, 479), expresses the petitioner was also required to submit the names of the intestate heirs
sound rule to which we have recently adhered in principle. with their corresponding addresses so that they could be properly
(Rodriguez vs. Yap, G.R. No. 45924, promulgated May 18, 1939; and notified and could intervene in the summary settlement of the estate.
Grey vs. Fabie, G.R. No. 45160, promulgated May 23, 1939):
Instead of complying with the order of the trial court, the petitioner
The object of the solemnities surrounding the filed a manifestation and/or motion, ex partepraying for a thirty-day
execution of wills is to close the door against bad faith and period within which to deliberate on any step to be taken as a result of
fraud, to avoid substitution of wills and testaments and to the disallowance of the will. He also asked that the ten-day period
guaranty their truth and authenticity. Therefore the laws on required by the court to submit the names of intestate heirs with their
this subject should be interpreted in such a way as to attain addresses be held in abeyance.
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 The petitioner filed a motion for reconsideration of the order denying
to restrain and curtail the exercise of the right to make a the probate of the will. However, the motion together with the
will. So when an interpretation already given assures such previous manifestation and/or motion could not be acted upon by the
ends, any other interpretation whatsoever, that adds nothing Honorable Ramon C. Pamatian due to his transfer to his new station at
72
Wills and Succession Case Digests
Pasig, Rizal. The said motions or incidents were still pending resolution necessity for the extrinsic validity of the wig that the signatures of the
when respondent Judge Avelino S. Rosal assumed the position of subscribing witnesses should be specifically located at the end of the
presiding judge of the respondent court. wig after the signature of the testatrix. He contends that it would be
absurd that the legislature intended to place so heavy an import on the
space or particular location where the signatures are to be found as
Meanwhile, the petitioner filed a motion for the appointment of special
long as this space or particular location wherein the signatures are
administrator.
found is consistent with good faith and the honest frailties of human
nature.
Subsequently, the new Judge denied the motion for reconsideration as
well as the manifestation and/or motion filed ex parte. In the same
We find the petition meritorious.
order of denial, the motion for the appointment of special
administrator was likewise denied because of the petitioner's failure to
comply with the order requiring him to submit the names of' the Undoubtedly, under Article 805 of the Civil Code, the will must be
intestate heirs and their addresses. subscribed or signed at its end by the testator himself or by the
testator's name written by another person in his presence, and by his
express direction, and attested and subscribed by three or more
The petitioner decided to file the present petition.
credible witnesses in the presence of the testator and of one another.

For the validity of a formal notarial will, does Article 805 of the Civil
It must be noted that the law uses the
Code require that the testatrix and all the three instrumental and
terms attested and subscribed Attestation consists in witnessing the
attesting witnesses sign at the end of the will and in the presence of
testator's execution of the will in order to see and take note mentally
the testatrix and of one another?
that those things are, done which the statute requires for the
execution of a will and that the signature of the testator exists as a
Article 805 of the Civil Code provides: fact. On the other hand, subscription is the signing of the witnesses'
names upon the same paper for the purpose of Identification of such
Every will, other than a holographic will, must be paper as the will which was executed by the testator. (Ragsdale v. Hill,
subscribed at the end thereof by the testator 269 SW 2d 911).
himself or by the testator's name written by some
other person in his presence, and by his express Insofar as the requirement of subscription is concerned, it is our
direction, and attested and subscribed by three or considered view that the will in this case was subscribed in a manner
more credible witnesses in the presence of the which fully satisfies the purpose of Identification.
testator and of one another.
The signatures of the instrumental witnesses on the left margin of the
The testator or the person requested by him to first page of the will attested not only to the genuineness of the
write his name and the instrumental witnesses of signature of the testatrix but also the due execution of the will as
the will, shall also sign, as aforesaid, each and embodied in the attestation clause.
every page thereof, except the last, on the left
margin, and all the pages shall be numbered
While perfection in the drafting of a will may be desirable,
correlatively in letters placed on the upper part of
unsubstantial departure from the usual forms should be ignored,
each page.
especially where the authenticity of the will is not assailed. (Gonzales
v. Gonzales, 90 Phil. 444, 449).
The attestation shall state the number of pages
used upon which the will is written, and the fact
The law is to be liberally construed, "the underlying and fundamental
that the testator signed the will and every page
objective permeating the provisions on the law on wills in this project
thereof, or caused some other person to write his
consists in the liberalization of the manner of their execution with the
name, under his express direction, in the presence
end in view of giving the testator more freedom in expressing his last
of the instrumental witnesses, and that the lacier
wishes but with sufficient safeguards and restrictions to prevent the
witnesses and signed the will and the pages
commission of fraud and the exercise of undue and improper pressure
thereof in the presence of the testator and of one
and influence upon the testator. This objective is in accord with the
another.
modern tendency in respect to the formalities in the execution of a
will" (Report of the Code commission, p. 103).
If the attestation clause is in a language not
known to the witnesses, it shall be interpreted to
Parenthetically, Judge Ramon C. Pamatian stated in his questioned
the witnesses, it shall be interpreted to them.
order that were not for the defect in the place of signatures of the
witnesses, he would have found the testimony sufficient to establish
The respondent Judge interprets the above-quoted provision of law to the validity of the will.
require that, for a notarial will to be valid, it is not enough that only
the testatrix signs at the "end" but an the three subscribing witnesses
The objects of attestation and of subscription were fully met and
must also sign at the same place or at the end, in the presence of the
satisfied in the present case when the instrumental witnesses signed at
testatrix and of one another because the attesting witnesses to a will
the left margin of the sole page which contains all the testamentary
attest not merely the will itself but also the signature of the testator. It
dispositions, especially so when the will was properly Identified by
is not sufficient compliance to sign the page, where the end of the will
subscribing witness Vicente Timkang to be the same will executed by
is found, at the left hand margin of that page.
the testatrix. There was no question of fraud or substitution behind the
questioned order.
On the other hand, the petitioner maintains that Article 805 of the Civil
Code does not make it a condition precedent or a matter of absolute

73
Wills and Succession Case Digests
We have examined the will in question and noticed that the attestation attests to the fun observance of the statutory
clause failed to state the number of pages used in writing the will. This requisites. Otherwise, as stated in Vda. de Gil. Vs.
would have been a fatal defect were it not for the fact that, in this Murciano, 49 Off. Gaz. 1459, at 1479 (decision on
case, it is discernible from the entire wig that it is really and actually reconsideration) 'witnesses may sabotage the will
composed of only two pages duly signed by the testatrix and her by muddling or bungling it or the attestation
instrumental witnesses. As earlier stated, the first page which contains clause.
the entirety of the testamentary dispositions is signed by the testatrix
at the end or at the bottom while the instrumental witnesses signed at
WHEREFORE, the present petition is hereby granted. The orders of the
the left margin. The other page which is marked as "Pagina dos"
respondent court which denied the probate of tile will, the motion for
comprises the attestation clause and the acknowledgment. The
reconsideration of the denial of probate, and the motion for
acknowledgment itself states that "This Last Will and Testament
appointment of a special administrator are set aside. The respondent
consists of two pages including this page".
court is ordered to allow the probate of the wig and to conduct further
proceedings in accordance with this decision. No pronouncement on
In Singson v. Florentino, et al. (92 Phil. 161, 164), this Court made the costs.
following observations with respect to the purpose of the requirement
that the attestation clause must state the number of pages used:
SO ORDERED.

The law referred to is article 618 of the Code of


EN BANC
Civil Procedure, as amended by Act No. 2645,
which requires that the attestation clause shall
state the number of pages or sheets upon which G.R. No. L-42258 January 15, 1936
the win is written, which requirement has been
held to be mandatory as an effective safeguard In re Will of the deceased Leoncia Tolentino.
against the possibility of interpolation or omission VICTORIO PAYAD, petitioner-appellant,
of some of the pages of the will to the prejudice of vs.
the heirs to whom the property is intended to be AQUILINA TOLENTINO, oppositor-appellant.
bequeathed (In re will of Andrada, 42 Phil., 180;
Uy Coque vs. Navas L. Sioca, 43 Phil. 405;
Gumban vs. Gorecho, 50 Phil. 30; Quinto vs. GODDARD, J.:
Morata, 54 Phil. 481; Echevarria vs. Sarmiento, 66
Phil. 611). The ratio decidendi of these cases Both parties in this case appeal from an order of the trial court denying
seems to be that the attestation clause must the probate of the alleged will of Leoncia Tolentino, deceased. That
contain a statement of the number of sheets or court found that the will in question was executed by the deceased on
pages composing the will and that if this is missing the date appearing thereon, September 7, 1933, one day before the
or is omitted, it will have the effect of invalidating death of the testatrix, contrary to the contention of the oppositor that
the will if the deficiency cannot be supplied, not by it was executed after her death. The court, however, denied probate
evidence aliunde, but by a consideration or on the ground that the attestation clause was not in conformity with
examination of the will itself. But here the the requirements of law in that it is not stated therein that the testatrix
situation is different. While the attestation clause caused Attorney Almario to write her name at her express direction.
does not state the number of sheets or pages
upon which the will is written, however, the last
part of the body of the will contains a statement The appeal of the oppositor-appellant is based upon the alleged failure
that it is composed of eight pages, which of the trial court in not finding that the will in question was executed
circumstance in our opinion takes this case out of after the death of Leoncia Tolentino, or that she was mentally and
the rigid rule of construction and places it within physically incapable of executing said will one day before her death.
the realm of similar cases where a broad and After a careful examination of the evidence on these points we find no
more liberal view has been adopted to prevent the reason for setting aside the conclusion of the trial court as set forth
will of the testator from being defeated by purely above. The assignments of the oppositor-appellant are therefore
technical considerations. overruled.

Icasiano v. Icasiano (11 SCRA 422, 429) has the following ruling which As to the contention of the petitioner-appellant, as stated above, the
applies a similar liberal approach: trial court denied probate of the will on the sole ground that the
attestation clause does not state that the testratrix requested Attorney
Almario to write her name.
... Impossibility of substitution of this page is
assured not only (sic) the fact that the testatrix
and two other witnesses did sign the defective The last paragraph of the questioned will reads in part as follows:
page, but also by its bearing the coincident imprint
of the seal of the notary public before whom the En prueba de todo lo cual, firmo el presente testamento con
testament was ratified by testatrix and all three mi marcha digital, poque no puedo estampar mi firma a
witnesses. The law should not be so strictly and causa de mi debilidad, rogando al abogado M. Almario que
literally interpreted as to penalize the testatrix on poga mi nombre en el sitio donde he de estampar mi
account of the inadvertence of a single witness marcha digital . . ..
over whose conduct she had no control where the
purpose of the law to guarantee the Identity of
the testament and its component pages is The evidence of record established the fact that Leoncia Tolentino,
sufficiently attained, no intentional or deliberate assisted by Attorney Almario, placed her thumb mark on each and
deviation existed, and the evidence on record every age of time questioned will and the said attorney merely wrote
her name to indicate the place where she placed said thumb mark. In
74
Wills and Succession Case Digests
other words Attorney Almario did not sign for the testatrix. She signed will and all pages thereof in the presence of the testator and
for placing her thumb mark on each and every page thereof "A statute of each other.
requiring a will to be 'signed' is satisfied if the signature is made by the
testator's mark." (Quoted by this court from 28 R.C.L., p, 117; De
The formal deffects of the will in question occur in its attestation
Gala vs.Gonzales and Ona, 53 Phil., 104, 108.) It is clear, therefore,
clause which, in translation, read as follows:
that it was not necessary that the attestation clause in question should
state that the testatrix requested Attorney Almario to sign her name
inasmuch as the testratrix signed the will in question in accordance We, the undersigned witnesses of this will, state that it has
with law. been shown to us by the testatrix as her last will and
testament. And as she cannot sign her name, she asked that
Mr. Filomeno Piczon sign her name in the presence of each
The appealed order of the trial court is reversed and the questioned
of us, and each of us, the witnesses, also signed in the
will of Leoncia Tolentino, deceased, is hereby admitted to probate with
presence of the testatrix.
the costs of this appeal against the oppositor-appellant.

It will be noted that the attestation clause does not state the number
Jallores. Vs. Interino – cannot be located in the internet and in the
of pages contained in the will nor does it state that the witnesses
SCRA. 
signed in the presence of each other. Neither do these facts appear in
any other part of the will.
EN BANC
Statutes prescribing the formalities to be observed in the execution of
G.R. No. 17430 May 31, 1922 wills are very strictly construed. As stated in 40 Cyc., at page 1097, "A
will must be executed in accordance with the statutory requirements;
otherwise it is entirely void. All these requirements stand as of equal
In the matter of the estate of Geronima Uy Coque, deceased.
importance and must be observed, and courts cannot supply the
ANDREA UY COQUE, ET AL., petitioners-appellees,
defective execution of a will. No power or discretion is vested in them,
vs.
either to superadd other conditions or dispose with those enumerated
JUAN NAVAS L. SIOCA, special administrator of the estate of
in the statutes."
Geronima Uy Coque, deceased, opponent-appellant.

This court has also frequently held that a will should not be probated
OSTRAND, J.:
unless in its execution there has been a strict complaince with all the
requisites prescribed in section 618 of the Code of Civil Produre. It is
This is an appeal from an order of the Court of First Instance of true that in the case of Abangan vs. Abangan (40 Phil., 476) the court
Samar, admitting a will to probate. upheld the validity of a will consisting of only two pages, the first
containing all the testamentary dispositions and being signed by the
The validity of the will is attacked on the ground that the testatrix was testator at the bottom and by both the testator and the witnesses in
mentally incapacitated at the time of its execution and on the further the margin, the second page containing only the attestaiton clause
ground that it was not executed on the form prescribed by section 618 with the signatures of the witnesses at the bottom but without
of the Code of Civil Procedure as amended by Act No. 2645, marginal signatures. The decision was based on the ground that it
could not have been the intention of the legislator to require, as an
essential to the validity of the will, that all the signatures appear twice
The transcript of the testimony taken in the probate proceedings not on the same page as such a requirement would be entirely
appearing in the record, we cannot review the findings of the court purposeless. This decision is no doubt sound; that in statutory
below as to the sanity of the testatrix. This leaves for our consideration construction the evident intent of the legislator controls will probably
only the question as to whether the omission of certain formalities in not be disputed.
the execution of the will are fatal to its validity.
But it must not be forgotten that in construing statutory provisions in
Section 618 of the Code of Civil Procedure as amended by Act No. regard to the formal requisites of a will, we are seeking to ascertain
2645 reads: the intent, of the legislator and not that the testator; the latter's
intention is frequently defeated through non-observance of the statue.
No will, except as provided in the preceding section, shall be
valid to pass any estate, real or personal, nor charge or The purpose of the Legislature in prescribing the rather strict
affect the same, unless it be written in the language or formalities now required in the execution of a will are clearly revealed
dialect known by the testator and signed by him, or by the by comparing section 618, supra, as originally enacted with the
testator's name written by some other person in his amended section quoted above. The original section reads:
presence, and by his express direction, and attested and
subscribed by three or more credible witnesses in the
presence of the testator and of each other. The testator or No will, except as provided in the preceding section, shall be
the person requested by him to write his name and the valid to pass any estate, real or personal, nor charge or
instrumental witnesses of the will, shall also sign, as affect the same, unless it be in writing and signed by the
aforesaid, each and every page thereof, on the left margin, testator, or by the testator's name written by some other
and said pages shall be numbered correlatively in letters person in his presence, and by his express direction, and
placed on the upper part of each sheet. The attestation shall attested and subscribed by three or more credible witnesses
state the number of sheets or pages used, upon which the in the presence of the testator and of each other. The
will is written, and the fact that the testator signed the will attestation shall state the fact that the testator signed the
and every page thereof, or caused some other person to will, or caused it to be signed by some other person, at this
write his name, under his express direction, in the presence express direction, in the presence of three witnesses, and
of three witnesses, and the latter witnessed and signed the that they attested and subscribed it is his presence and in
the presence of each other. But the absence of such form of
75
Wills and Succession Case Digests
attestation shall not render the will in valid if it is proven that presence of the testatrix. Section 618 of Act No. 190, as amended by
the will was in fact signed and attested as in this section Act No. 2645, provides that he attestation clause shall state the fact
provided. that the testator signed the will and all the pages thereof, or caused
another persons to place his name thereon at his expressed direction
in the presence of the three witnesses to the will, and that the latter
The amendments or changes introduced by Act No. 2645 are ( a) that
signed the will and all its pages in the presence of the testator and of
the will must now be executed in a language or dialect known to the
each other. In the case of Uy Coque vs. Navas L. Sioca (43 Phil., 405),
testator; (b) that the testator and witnesses must sign each page on
this court has held that the requirement that the attestation clause
the left margin; (c) that the pages be numbered correclatively; (d) that
must contain the statement that the witnesses signed in the presence
the attestation clause shall state the number sheets or page used in
of each other is imperative and non-comfort in said case in support of
the will and (e) that it must appear from the attestation clause itself
this doctrine may be adduced for holding that the will is also null and
that the testator and witnesses signed in the form and manner
void when in the attestation clause it does not appear that the
required by law and that is this can no longer be proven by evidence
witnesses to the will signed it and every page thereof on the left
aliunde.
margin and in the presence of the testatrix. In order to insure the
authenticity of a will, which is the object of the law, it is just as
The changes mentioned under (d) and (e) are the only ones which important, if not the most important, that the witnesses should sign in
need be considered in the present case. The purpose of requiring the the presence of the testator and of each other.lawphi1.net
number of sheets to be stated in the attestation clause is obvious; the
document might easily be so prepared that the removal of a sheet
The judgment appealed from is reversed, and the probate of the will of
would completely change the testamentary dispositions of the will and
Victoria Quintana is denied, without special pronouncement as to
in the absence of a statement of the total number of sheets such
costs. So ordered.
removal might be effected by taking out the sheet and changing the
numbers at the top of the following sheets or pages. If, on the other
hand, the total number of sheets is stated in the attestation clause the EN BANC
falsification of the document will involve the inserting of new pages
and the forgoing of the signatures of the testator and witnesses in the
G.R. No. L-26135 March 3, 1927
margin, a matter attended with much greater difficulty.

In re will of Eustaquio Hagoriles. PETRONILO


The purpose of the new requirement that it must appear in the
GUMBAN, petitioner-appellee,
attestation clause that the testator and the witnesses signed in the
vs.
presence of each other and that the fact cannot be proved by
INOCENCIA GORECHO, ET AL., opponents-appellants.
evidence aliunde is, perhaps, less obvious, but, in view of the well-
known unreliability of oral evidence, it is clear that a statement in the
attestation clause will afford more satisfatory evidence of the fact to be MALCOLM, J.:
proven. In any event, the fact that the old rule in regard to
admissibility or oral evidence to prove that the testator and witnesses This is an appeal by the widow, Inocencia Gorecho, and eighteen other
signed in the manner prescribed by the law evidently had been found opponents, from an order of the Court of First Instance of Iloilo
unsatisfactory and was deliberately varied by amendment shows that probating the document presented by Petronilo Gumban as the last will
the Legislature attached importance to the mater. If so, the courts will and testament of the deceased Eustaquio Hagoriles. Among the errors
not be justified in enervating the amendment by too liberal a assigned is included the finding of the trial court that the alleged will
construction. was prepared in conformity with the law, notwithstanding it did not
contain an attestation clause stating that the testator and the
We therefore hold that the two defects noted in the attestation clause witnesses signed all the pages of the will.
of the alleged will renders it null and void and that it cannot be
admitted to probate. The order appealed from is reversed with the In support of their argument on the assignment of error above-
costs against the appellee. So ordered. mentioned, appellants rely on a series of cases of this court beginning
with in the Matter of the Estate of Saguinsin ([1920], 41 Phil., 875),
EN BANC continuing with in In re Will of Andrada ([1921], 42 Phil., 180), Uy
Coque vs. Navas L. Sioca ([1922], 43 Phil., 405), and In re Estate of
Neumark ([1923], 46 Phil., 841), and ending with in Saño vs.
G.R. No. L-24556 December 18, 1925
Quintana ([1925]), 48 Phil., 506). Appelle counters with the citation of
a series of cases beginning with Abangan vs. Abangan ([1919], 40
In re will of Victoria Quintana, deceased. EMILIANO S. Phil., 476), continuing through Aldaba vs. Roque ([1922], 43 Phil.,
SAÑO, petitioner-appellee, 378), and Fernandez vs. Vergel de Dios ([1924], 46 Phil., 922, and
vs. culminating in Nayve vs. Mojal and Aguilar ([1924], 47 Phil., 152). In
MAMERTO QUINTANA, ET AL., opponents-appellants. its last analysis, our task is to contrast and, if possible, conciliate, the
last two decisions cited by opposing counsel, namely, those of Saño
vs. Quintana, supra, and Nayve vs. Mojal and Aguilar, supra.
AVANCEÑA, C.J.:

In the case of Saño vs. Quintana, supra, it was decided that an


The judgment appealed from allowed the probate of the will of the
attestation clause which does not recite that the witnesses signed the
deceased Victoria Quintana executed on March 22, 1924. Without
will and each and every page thereof on the left margin in the
going into discussion of the points raised by the parties as to the
presence of the testator is defective, and such a defect annuls the will.
formalities of this will we find a sufficient reason for reversing the
The case of Uy Coque vs. Sioca, supra, was cited, but the case
judgment appealed from and denying the probate thereof.
ofNayve vs. Mojal and Aguilar, supra, was not mentioned. In contrast,
is the decision in Nayve vs. Mojal and Aguilar,supra, wherein it was
In the attestation clause there is no statement that the witnesses to held that the attestation clause must state the fact that the testator
the will have signed on the left margin of each page of the will in the and the witnesses reciprocally saw the signing of the will, for such an
76
Wills and Succession Case Digests
act cannot be proved by the mere exhibition of the will, if it is not MARGARITA MORATA, in substitution of Mateo Pueblo,
stated therein. It was also held that the fact that the testator and the deceased, contestant-appellee.
witnesses signed each and every page of the will can be proved also
by the mere examination of the signatures appearing on the document
JOHNSON, J.:
itself, and the omission to state such evident fact does not invalidate
the will.
This is an appeal from a decision of the Honorable Manuel V. Moran,
judge of the Court of first Instance of Cavite, denying the application
It is a habit of courts to reaffirm or distinguish previous cases; seldom
of Carmen Quinto for the probate of the alleged will of the deceased
do they admit inconsistency in doctrine. Yet here, unless aided by
Gregorio Pueblo, her husband.
casuistry of the extreme type, it would be impossible to reconcile the
Mojal and Quintana decisions. They are fundamentally at variance. If
we rely on one, we affirm. If we rely on the other, we reverse. The application for probate was filed on October 26, 1928 by Carmen
Quinto, executrix of said will. It was a joint and mutual will of Gregorio
Pueblo and his said wife Carmen Quinto and contained a provision that
In resolving this puzzling question of authority, three outstanding
the surviving spouse shall take charge of the properties therein
points may be mentioned. In the first place, the Mojal decision was
described and that they shall pass to the heirs and legatees at the time
concurred in by only four members of the court, less than a majority,
of the death of the surviving spouse.
with two strong dissenting opinions; the Quintana decisions was
concurred in by seven members of the court, a clear majority, with one
formal dissent. In the second place, the Mojal decision was To said application an opposition was filed by Mateo Pueblo, a brother
promulgated in December, 1924; the Quintana decision was thus of the deceased, on the following grounds: (1) That the attestation
subsequent in point of time. And in the third place, the Quintana clause of said will does not state the number of pages of which the will
decision is believed more nearly to conform to the applicable is composed, and (2) that the attestation clause does not state that
provisions of the law. each and every page of the will was signed by the testators in the
presence of the witnesses, and that the latter signed the same in the
presence of the testators and in the presence of each other.
The right to dispose of property by will is governed entirely by statute.
The law of the case is here found in section 618 of the Code of Civil
procedure, as amended by Act No. 2645, and in section 634 of the Upon the issue thus raised, and after hearing the evidence, the court
same Code, as unamended. It is part provided in section 618, as rendered a judgment denying the petition on the ground that the
amended, that "No will . . . shall be valid . . . unless . . . ." It is further attestation clause did not state that the witnesses signed the will in the
provided in the same section that "The attestation shall state the presence of the testators, or that both the testators and the witnesses
number of sheets or pages used, upon which the will and every page signed the will and each and every page thereof in the presence of
thereof, or caused some other person to write his name, under his each other. In this connection the lower court said:
express direction, in the presence of three witnesses, and the latter
witnessed and signed the will and all pages thereof in the presence of . . . En la clausula de atestiguamiento del testamento en
the testator and of each other." Codal section 634 provides that " The cuestion, se hace constar que los testadores firmaron el
will shall be disallowed in either of the following cases: 1. testamento en presencia de los tres testigos instrumentales
If not executed and attested as in this Act provided." The law not y que estos firmaron el testamento los unos en presencia de
alone carefully makes use of the imperative, but cautiously goes los otros, pero no se hace constar que dichos testigos
further and makes use of the negative, to enforce legislative intention. firmaron el testamento enpresencia de los testadores, ni que
It is not within the province of the courts to disregard the legislative estos y aquellos firmaron today y cada una de las paginas
purpose so emphatically and clearly expressed. del testamento los primeros en presencia de los segundos y
vice-versa.
We adopt and reaffirm the decision in the case of Saño vs.
Quintana, supra, and, to the extent necessary, modify the decision in En su virtud, se deniega la solicitud en la que se pide la
the case of Nayve vs. Mojal and Aguilar, supra. legalizacion del alegado testamento Exhibit A de Gregorio
Pueblo y Carmen Quinto, y se declara que Gregorio Pueblo
It may not be said here that our ruling is predicated on technicality or murio intestado.
injustice. The will in question was formulated in a medley of three
languages, Visayan, English , and Spanish. Suspicious circumstances From the judgment the petitioner appealed and now contends:
surrounded the making of the will by the bedridden old man, who is
alleged to have signed it. However, no express pronouncements on the
two important questions relating to the language of the will and the That the lower court committed an error in denying the application of
testamentary capacity of the deceased are required. the petitioner for the probate of the will of the deceased Gregorio
Pueblo.
The order appealed from will be reversed, and the document Exhibit A
disallowed as a will, without special pronouncement as to costs in The attestation clause of the will in question (Exhibit A-1) reads as
either instance. So ordered. follows:

EN BANC Nosotros los que firmamos al final de este testamento,


Florentino Joya, Aguedo Soriano y Teodoro Bleza damos fe,
de haber visto o presenciado el acto de firmar en esta
G.R. No. L-31732 February 19, 1930 escritura o testamento de los esposes Gregorio Pueblo y
Carmen Quinto; lo firmaron ellos en nuestra presencia, y que
Estate of the deceased Gregorio Pueblo. nosotros los testigos, lo firmamos en presencia de cade uno
CARMEN QUINTO, applicant-appellant, de nostros, hoy 3 de noviembre de 1920. Este testamento
vs. esta compuesto de tres fojas utiles.

77
Wills and Succession Case Digests
As will be noted, the attestation clause contravenes the express TEODORO CANEDA, LORENZA CANEDA, TERESA CANEDA,
requirements of section 618 of Act No. 190, as amended by Act No. JUAN CABALLERO, AUREA CABALLERO, OSCAR LAROSA,
2645, in two ways: First, it fails to state that each and every page of HELEN CABALLERO, SANTOS CABALLERO, PABLO CABALLERO,
the will was signed by the testators and the witnesses; and, second, it VICTOR RAGA, MAURICIA RAGA, QUIRICA RAGA, RUPERTO
fails to state that the witnesses signed each and every page of the will ABAPO, represented herein by his Attorney-in-Fact,
in the presence of the testators. ARMSTICIA * ABAPO VELANO, and CONSESO CANEDA,
represented herein by his heirs, JESUS CANEDA, NATIVIDAD
CANEDA and ARTURO CANEDA, petitioners,
In the case of Saño vs. Quintana (48 Phil., 506) this court held that
vs.
"an attestation clause which does not recite that the witnesses signed
HON. COURT OF APPEALS and WILLIAM CABRERA, as Special
the will and each and every page thereof on the left margin in the
Administrator of the Estate of Mateo Caballero, respondents.
presence of the testator is defective, and such defect annuls the will."
This doctrine was restated and reaffirmed in the case of
Gumban vs. Gorecho (50 Phil., 30). REGALADO, J.:

It is vigorously contended on behalf of the appellant, that the alleged Presented for resolution by this Court in the present petition for review
defect of the attestation clause has been cured by oral evidence, which on certiorari is the issue of whether or not the attestation clause
was admitted without opposition on the part of the appellee. This contained in the last will and testament of the late Mateo Caballero
contention cannot be sustained. The doctrine of this court with complies with the requirements of Article 805, in relation to Article
reference to statute of frauds is not applicable to wills. The statue of 809, of the Civil Code.
frauds relates to contracts and agreements. The subject of will and
testaments and the formalities surrounding their execution are
The records show that on December 5, 1978, Mateo Caballero, a
governed by separate and specific provisions of Act No. 190.
widower without any children and already in the twilight years of his
life, executed a last will and testament at his residence in Talisay,
An examination of section 618 of Act No. 190, prior to, and after its Cebu before three attesting witnesses, namely, Cipriano Labuca,
amendment by Act No. 2645, shows clearly that the Legislature Gregorio Cabando and Flaviano Toregosa. The said testator was duly
intended to exclude evidence aliunde, tending to establish that the will assisted by his lawyer, Atty. Emilio Lumontad, and a notary public,
has been executed and attested in conformity with the requirements of Atty. Filoteo Manigos, in the preparation of that last will. 1 It was
the law, where such compliance does not appear on the face of the, declared therein, among other things, that the testator was leaving by
will itself. Prior to its amendment, section 618 contained the following way of legacies and devises his real and personal properties to
saving clause: "But the absence of such form of attestation shall not Presentacion Gaviola, Angel Abatayo, Rogelio Abatayo, Isabelito
render the will invalid if it is proven that the will was in fact signed and Abatayo, Benoni G. Cabrera and Marcosa Alcantara, all of whom do not
attested as in this section provided." appear to be related to the testator. 2

The most outstanding feature of the amendment of said section 618 Four months later, or on April 4, 1979, Mateo Caballero himself filed a
by Act No. 2645 is the elimination of said saving clause and the petition docketed as Special Proceeding No. 3899-R before Branch II
greater emphasis laid on the formalities as to signatures and the of the then Court of First Instance of Cebu seeking the probate of his
attestation clause. There can be no doubt, therefore, that the intention last will and testament. The probate court set the petition for hearing
of the Legislature, in eliminating said clause, was admitted without on August 20, 1979 but the same and subsequent scheduled hearings
opposition, it should not be given effect and thus defeat the manifest were postponed for one reason to another. On May 29, 1980, the
intention of the Legislature in amending said section 618. testator passed away before his petition could finally be heard by the
probate court. 3 On February 25, 1981, Benoni Cabrera, on of the
legatees named in the will, sough his appointment as special
Section 618 of Act No. 190, as amended, should be given a strict
administrator of the testator's estate, the estimated value of which was
interpretation. In the case of Uy Coque vs. Navas L. Sioca (43 Phil.,
P24,000.00, and he was so appointed by the probate court in its order
405) this court, speaking of the construction to be given to said
of March 6, 1981. 4
section, said:

Thereafter, herein petitioners, claiming to be nephews and nieces of


Statutes prescribing the formalities to be observed in the
the testator, instituted a second petition, entitled "In the Matter of the
execution of wills are very strictly construed. As stated in 40
Intestate Estate of Mateo Caballero" and docketed as Special
Cyc., at page 1097, "A will must be executed in accordance
Proceeding No. 3965-R, before Branch IX of the aforesaid Court of
with the statutory requirements; otherwise it is entirely void.
First Instance of Cebu. On October 18, 1982, herein petitioners had
All these requirements stand as of equal importance and
their said petition intestate proceeding consolidated with Special
must be observed, and courts cannot supply the defective
Proceeding No. 3899-R in Branch II of the Court of First Instance of
execution of a will. No power or discretion is vested in them,
Cebu and opposed thereat the probate of the Testator's will and the
either to superadd other conditions or dispense with those
appointment of a special administrator for his estate. 5
enumerated in the statutes." (Uy Coque vs. Navas L. Sioca,
43 Phil., 405, 407.)
Benoni Cabrera died on February 8, 1982 hence the probate court,
now known as Branch XV of the Regional Trial Court of Cebu,
The judgment appealed from, disallowing the will of Gregorio Pueblo,
appointed William Cabrera as special administrator on June 21, 1983.
is in confirmity with the facts and the law, and the same should be and
Thereafter, on July 20, 1983, it issued an order for the return of the
in hereby affirmed, with costs. So ordered.
records of Special Proceeding No. 3965-R to the archives since the
testate proceeding for the probate of the will had to be heard and
SECOND DIVISION resolved first. On March 26, 1984 the case was reraffled and
eventually assigned to Branch XII of the Regional Trial Court of Cebu
G.R. No. 103554 May 28, 1993 where it remained until the conclusion of the probate proceedings. 6

78
Wills and Succession Case Digests
In the course of the hearing in Special Proceeding No. 3899-R, herein substantialy complied with the requirements of
petitioners appeared as oppositors and objected to the allowance of Art. 805 of the Civil Code. What appears in the
the testator's will on the ground that on the alleged date of its attestation clause which the oppositors claim to be
execution, the testator was already in the poor state of health such defective is "we do certify that the testament was
that he could not have possibly executed the same. Petitioners likewise read by him and the attestator, Mateo Caballero,
reiterated the issue as to the genuineness of the signature of the has published unto us the foregoing will consisting
testator therein. 7 of THREE PAGES, including the acknowledgment,
each page numbered correlatively in letters of the
upper part of each page, as his Last Will and
On the other hand, one of the attesting witnesses, Cipriano Labuca,
Testament, and he has signed the same and every
and the notary public Atty. Filoteo Manigos, testified that the testator
page thereof, on the spaces provided for his
executed the will in question in their presence while he was of sound
signature and on the left hand margin in the
and disposing mind and that, contrary to the assertions of the
presence of the said testator and in the presence
oppositors, Mateo Caballero was in good health and was not unduly
of each and all of us (emphasis supplied).
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
presence of the testator and of each other. The other two attesting To our thinking, this is sufficient compliance and
witnesses were not presented in the probate hearing as the had died no evidence need be presented to indicate the
by then. 8 meaning that the said will was signed by the
testator and by them (the witnesses) in the
presence of all of them and of one another. Or as
On April 5, 1988, the probate court rendered a decision declaring the
the language of the law would have it that the
will in question as the last will and testament of the late Mateo
testator signed the will "in the presence of the
Caballero, on the ratiocination that:
instrumental witnesses, and that the latter
witnessed and signed the will and all the pages
. . . The self-serving testimony of the two thereof in the presence of the testator and of one
witnesses of the oppositors cannot overcome the another." If not completely or ideally perfect in
positive testimonies of Atty. Filoteo Manigos and accordance with the wordings of Art. 805 but (sic)
Cipriano Labuca who clearly told the Court that the phrase as formulated is in substantial
indeed Mateo Caballero executed the Last Will and compliance with the requirement of the law." 11
Testament now marked Exhibit "C" on December
5, 1978. Moreover, the fact that it was Mateo
Petitioners moved for the reconsideration of the said ruling of
Caballero who initiated the probate of his Will
respondent court, but the same was denied in the latter's resolution of
during his lifetime when he caused the filing of the
January 14, 1992, 12 hence this appeal now before us. Petitioners
original petition now marked Exhibit "D" clearly
assert that respondent court has ruled upon said issue in a manner not
underscores the fact that this was indeed his Last
in accord with the law and settled jurisprudence on the matter and are
Will. At the start, counsel for the oppositors
now questioning once more, on the same ground as that raised before
manifested that he would want the signature of
respondent court, the validity of the attestation clause in the last will
Mateo Caballero in Exhibit "C" examined by a
of Mateo Caballero.
handwriting expert of the NBI but it would seem
that despite their avowal and intention for the
examination of this signature of Mateo Caballero We find the present petition to be meritorious, as we shall shortly
in Exhibit "C", nothing came out of it because they hereafter, after some prefatory observations which we feel should be
abandoned the idea and instead presented Aurea made in aid of the rationale for our resolution of the controversy.
Caballero and Helen Caballero Campo as witnesses
for the oppositors.
1. A will has been defined as a species of conveyance whereby a
person is permitted, with the formalities prescribed by law, to control
All told, it is the finding of this Court that Exhibit to a certain degree the disposition of his estate after his
"C" is the Last Will and Testament of Mateo death. 13 Under the Civil Code, there are two kinds of wills which a
Caballero and that it was executed in accordance testator may execute. 14 the first kind is the ordinary or attested will,
with all the requisites of the law. 9 the execution of which is governed by Articles 804 to 809 of the Code.
Article 805 requires that:
Undaunted by the said judgment of the probate court, petitioners
elevated the case in the Court of Appeals in CA-G.R. CV No. 19669. Art. 805. Every will, other than a holographic will,
They asserted therein that the will in question is null and void for the must be subscribed at the end thereof by the
reason that its attestation clause is fatally defective since it fails to testator himself or by the testator's name written
specifically state that the instrumental witnesses to the will witnessed by some other person in his presence, and by his
the testator signing the will in their presence and that they also signed express direction, and attested and subscribed by
the will and all the pages thereof in the presence of the testator and of three or more credible witnesses in the presence
one another. of the testator and of one another.

On October 15, 1991, respondent court promulgated its The testator or the person requested by him to
decision 10 affirming that of the trial court, and ruling that the write his name and the instrumental witnesses of
attestation clause in the last will of Mateo Caballero substantially the will, shall also sign, as aforesaid, each and
complies with Article 805 of the Civil Code, thus: every page thereof, except the last, on the left
margin, and all the pages shall be numbered
correlatively in letters placed on the upper part of
The question therefore is whether the attestation
each page.
clause in question may be considered as having
79
Wills and Succession Case Digests
The attestation should state the number of pages that the will is the very same instrument executed by the testator and
used upon which the will is written, and the fact attested to by the witnesses. 24
that the testator signed the will and every page
thereof, or caused some other person to write his
Further, by attesting and subscribing to the will, the witnesses thereby
name, under his express direction, in the presence
declare the due execution of the will as embodied in the attestation
of the instrumental witnesses, and that the latter
clause. 25 The attestation clause, therefore, provide strong legal
witnessed and signed the will and all the pages
guaranties for the due execution of a will and to insure the authenticity
thereof in the presence of the testator and of one
thereof. 26 As it appertains only to the witnesses and not to the
another.
testator, it need be signed only by them. 27 Where it is left unsigned, it
would result in the invalidation of the will as it would be possible and
If the attestation clause is in a language not easy to add the clause on a subsequent occasion in the absence of the
known to the witness, it shall be interpreted to testator and its witnesses. 28
them.
In its report, the Code Commission commented on the reasons of the
In addition, the ordinary will must be acknowledged before a notary law for requiring the formalities to be followed in the execution of
public by a testator and the attesting witness.15 hence it is likewise wills, in the following manner:
known as notarial will. Where the attestator is deaf or deaf-mute,
Article 807 requires that he must personally read the will, if able to do
The underlying and fundamental objectives
so. Otherwise, he should designate two persons who would read the
permeating the provisions on the law on wills in
will and communicate its contents to him in a practicable manner. On
this Project consists in the liberalization of the
the other hand, if the testator is blind, the will should be read to him
manner of their execution with the end in view of
twice; once, by anyone of the witnesses thereto, and then again, by
giving the testator more freedom in expressing his
the notary public before whom it is acknowledged. 16
last wishes, but with sufficient safeguards and
restrictions to prevent the commission of fraud
The other kind of will is the holographic will, which Article 810 defines and the exercise of undue and improper pressure
as one that is entirely written, dated, and signed by the testator and influence upon the testator.
himself. This kind of will, unlike the ordinary type, requires no
attestation by witnesses. A common requirement in both kinds of will
This objective is in accord with the modern
is that they should be in writing and must have been executed in a
tendency with respect to the formalities in the
language or dialect known to the testator. 17
execution of wills. . . . 29

However, in the case of an ordinary or attested will, its attestation


2. An examination of the last will and testament of Mateo Caballero
clause need not be written in a language or dialect known to the
shows that it is comprised of three sheets all of which have been
testator since it does not form part of the testamentary disposition.
numbered correlatively, with the left margin of each page thereof
Furthermore, the language used in the attestation clause likewise need
bearing the respective signatures of the testator and the three
not even be known to the attesting witnesses. 18 The last paragraph of
attesting witnesses. The part of the will containing the testamentary
Article 805 merely requires that, in such a case, the attestation clause
dispositions is expressed in the Cebuano-Visayan dialect and is signed
shall be interpreted to said witnesses.
at the foot thereof by the testator. The attestation clause in question,
on the other hand, is recited in the English language and is likewise
An attestation clause refers to that part of an ordinary will whereby the signed at the end thereof by the three attesting witnesses
attesting witnesses certify that the instrument has been executed hereto. 30 Since it is the proverbial bone of contention, we reproduce it
before them and to the manner of the execution the same. 19 It is a again for facility of reference:
separate memorandum or record of the facts surrounding the conduct
of execution and once signed by the witnesses, it gives affirmation to
We, the undersigned attesting Witnesses, whose
the fact that compliance with the essential formalities required by law
Residences and postal addresses appear on the
has been observed. 20 It is made for the purpose of preserving in a
Opposite of our respective names, we do hereby
permanent form a record of the facts that attended the execution of a
certify that the Testament was read by him and
particular will, so that in case of failure of the memory of the attesting
the testator, MATEO CABALLERO; has published
witnesses, or other casualty, such facts may still be proved. 21
unto us the foregoing Will consisting of THREE
PAGES, including the Acknowledgment, each page
Under the third paragraph of Article 805, such a clause, the complete numbered correlatively in the letters on the upper
lack of which would result in the invalidity of the will, 22 should state part of each page, as his Last Will and Testament
(1) the number of the pages used upon which the will is written; (2) and he has the same and every page thereof, on
that the testator signed, or expressly caused another to sign, the will the spaces provided for his signature and on the
and every page thereof in the presence of the attesting witnesses; and left hand margin, in the presence of the said
(3) that the attesting witnesses witnessed the signing by the testator testator and in the presence of each and all of us.
of the will and all its pages,and that said witnesses also signed the
will and every page thereof in the presence of the testator and of one
It will be noted that Article 805 requires that the witness should both
another.
attest and subscribe to the will in the presence of the testator and of
one another. "Attestation" and "subscription" differ in meaning.
The purpose of the law in requiring the clause to state the number of Attestation is the act of senses, while subscription is the act of the
pages on which the will is written is to safeguard against possible hand. The former is mental, the latter mechanical, and to attest a will
interpolation or omission of one or some of its pages and to prevent is to know that it was published as such, and to certify the facts
any increase or decrease in the pages; 23 whereas the subscription of required to constitute an actual and legal publication; but to subscribe
the signature of the testator and the attesting witnesses is made for a paper published as a will is only to write on the same paper the
the purpose of authentication and identification, and thus indicates names of the witnesses, for the sole purpose of identification. 31
80
Wills and Succession Case Digests
In Taboada vs. Rizal, 32 we clarified that attestation consists in correctly observed, the presence of said signatures only establishes the
witnessing the testator's execution of the will in order to see and take fact that it was indeed signed, but it does not prove that the attesting
note mentally that those things are done which the statute requires for witnesses did subscribe to the will in the presence of the testator and
the execution of a will and that the signature of the testator exists as a of each other. The execution of a will is supposed to be one act so that
fact. On the other hand, subscription is the signing of the witnesses' where the testator and the witnesses sign on various days or occasions
names upon the same paper for the purpose of identification of such and in various combinations, the will cannot be stamped with the
paper as the will which was executed by the testator. As it involves a imprimatur of effectivity. 33
mental act, there would be no means, therefore, of ascertaining by a
physical examination of the will whether the witnesses had indeed
We believe that the further comment of former Justice J.B.L.
signed in the presence of the testator and of each other unless this is
Reyes 34 regarding Article 809, wherein he urged caution in the
substantially expressed in the attestation.
application of the substantial compliance rule therein, is correct and
should be applied in the case under consideration, as well as to future
It is contended by petitioners that the aforequoted attestation clause, cases with similar questions:
in contravention of the express requirements of the third paragraph of
Article 805 of the Civil Code for attestation clauses, fails to specifically
. . . The rule must be limited to disregarding those
state the fact that the attesting witnesses the testator sign the will and
defects that can be supplied by an examination of
all its pages in their presence and that they, the witnesses, likewise
the will itself: whether all the pages are
signed the will and every page thereof in the presence of the testator
consecutively numbered; whether the signatures
and of each other. We agree.
appear in each and every page; whether the
subscribing witnesses are three or the will was
What is fairly apparent upon a careful reading of the attestation clause notarized. All theses are facts that the will itself
herein assailed is the fact that while it recites that the testator indeed can reveal, and defects or even omissions
signed the will and all its pages in the presence of the three attesting concerning them in the attestation clause can be
witnesses and states as well the number of pages that were used, the safely disregarded. But the total number of
same does not expressly state therein the circumstance that said pages, and whether all persons required to sign
witnesses subscribed their respective signatures to the will in the did so in the presence of each other must
presence of the testator and of each other. substantially appear in the attestation clause,
being the only check against perjury in the
probate proceedings. (Emphasis ours.)
The phrase "and he has signed the same and every page thereof, on
the spaces provided for his signature and on the left hand margin,"
obviously refers to the testator and not the instrumental witnesses as 3. We stress once more that under Article 809, the defects and
it is immediately preceded by the words "as his Last Will and imperfections must only be with respect to the form of the attestation
Testament." On the other hand, although the words "in the presence or the language employed therein. Such defects or imperfections
of the testator and in the presence of each and all of us" may, at first would not render a will invalid should it be proved that the will was
blush, appear to likewise signify and refer to the witnesses, it must, really executed and attested in compliance with Article 805. In this
however, be interpreted as referring only to the testator signing in the regard, however, the manner of proving the due execution and
presence of the witnesses since said phrase immediately follows the attestation has been held to be limited to merely an examination of the
words "he has signed the same and every page thereof, on the spaces will itself without resorting to evidence aliunde, whether oral or
provided for his signature and on the left hand margin." What is then written.
clearly lacking, in the final logical analysis , is the statement that the
witnesses signed the will and every page thereof in the presence of
The foregoing considerations do not apply where the attestation clause
the testator and of one another.
totally omits the fact that the attesting witnesses signed each and
every page of the will in the presence of the testator and of each
It is our considered view that the absence of that statement required other. 35 In such a situation, the defect is not only in the form or
by law is a fatal defect or imperfection which must necessarily result in language of the attestation clause but the total absence of a specific
the disallowance of the will that is here sought to be admitted to element required by Article 805 to be specifically stated in the
probate. Petitioners are correct in pointing out that the aforestated attestation clause of a will. That is precisely the defect complained of
defect in the attestation clause obviously cannot be characterized as in the present case since there is no plausible way by which we can
merely involving the form of the will or the language used therein read into the questioned attestation clause statement, or an
which would warrant the application of the substantial compliance rule, implication thereof, that the attesting witness did actually bear witness
as contemplated in the pertinent provision thereon in the Civil Code, to to the signing by the testator of the will and all of its pages and that
wit: said instrumental witnesses also signed the will and every page thereof
in the presence of the testator and of one another.
Art. 809. In the absence of bad faith, forgery, or
fraud, or undue and improper pressure and Furthermore, the rule on substantial compliance in Article 809 cannot
influence, defects and imperfections in the form of be revoked or relied on by respondents since it presupposes that the
attestation or in the language used therein shall defects in the attestation clause can be cured or supplied by the text
not render the will invalid if it is not proved that of the will or a consideration of matters apparent therefrom which
the will was in fact executed and attested in would provide the data not expressed in the attestation clause or from
substantial compliance with all the requirements of which it may necessarily be gleaned or clearly inferred that the acts
article 805" (Emphasis supplied.) not stated in the omitted textual requirements were actually complied
within the execution of the will. In other words, defects must be
remedied by intrinsic evidence supplied by the will itself.
While it may be true that the attestation clause is indeed subscribed at
the end thereof and at the left margin of each page by the three
attesting witnesses, it certainly cannot be conclusively inferred In the case at bar, contrarily, proof of the acts required to have been
therefrom that the said witness affixed their respective signatures in performed by the attesting witnesses can be supplied by only extrinsic
the presence of the testator and of each other since, as petitioners evidence thereof, since an overall appreciation of the contents of the
81
Wills and Succession Case Digests
will yields no basis whatsoever from with such facts may be plausibly namely, those of Sano vs. Quintana,supra,
deduced. What private respondent insists on are the testimonies of his and Nayve vs. Mojal and Aguilar, supra.
witnesses alleging that they saw the compliance with such
requirements by the instrumental witnesses, oblivious of the fact that
In the case of Sano vs. Quintana, supra, it was
he is thereby resorting to extrinsic evidence to prove the same and
decided that an attestation clause which does not
would accordingly be doing by the indirection what in law he cannot
recite that the witnesses signed the will and each
do directly.
and every page thereof on the left margin in the
presence of the testator is defective, and such a
4. Prior to the advent of the Civil Code on August 30, 1950, there was defect annuls the will. The case of Uy Coque vs.
a divergence of views as to which manner of interpretation should be Sioca, supra, was cited, but the case of Nayve vs.
followed in resolving issues centering on compliance with the legal Mojal and Aguilar, supra, was not mentioned. In
formalities required in the execution of wills. The formal requirements contrast, is the decision in Nayve vs. Mojal and
were at that time embodied primarily in Section 618 of Act No. 190, Aguilar, supra, wherein it was held that the
the Code of Civil Procedure. Said section was later amended by Act No. attestation clause must estate the fact that the
2645, but the provisions respecting said formalities found in Act. No. testator and the witnesses reciprocally saw the
190 and the amendment thereto were practically reproduced and signing of the will, for such an act cannot be
adopted in the Civil Code. proved by the mere exhibition of the will, if it is
not stated therein. It was also held that the fact
that the testator and the witnesses signed each
One view advance the liberal or substantial compliance rule. This was
and every page of the will can be proved also by
first laid down in the case of Abangan vs. Abangan, 36 where it was
the mere examination of the signatures appearing
held that the object of the solemnities surrounding the execution of
on the document itself, and the omission to state
wills is to close the door against bad faith and fraud, to avoid
such evident facts does not invalidate the will.
substitution of wills and testaments and to guarantee their truth and
authenticity. Therefore, the laws on this subject should be interpreted
in such a way as to attain these primordial ends. Nonetheless, it was It is a habit of courts to reaffirm or distinguish
also emphasized that one must not lose sight of the fact that it is not previous cases; seldom do they admit
the object of the law to restrain and curtail the exercise of the right to inconsistency in doctrine. Yet here, unless aided
make a will, hence when an interpretation already given assures such impossible to reconcile the Mojal and Quintana
ends, any other interpretation whatsoever that adds nothing but decisions. They are fundamentally at variance. If
demands more requisites entirely unnecessary, useless and frustrative we rely on one, we affirm. If we rely on the other,
of the testator's last will, must be disregarded. The subsequent cases we reverse.
ofAvera vs. Garcia, 37 Aldaba vs. Roque, 38 Unson vs. Abella, 39 Pecson
vs. Coronel, 40 Fernandez vs. Vergel de Dios, et al., 41 and Nayve vs.
In resolving this puzzling question of authority,
Mojal, et al. 42 all adhered to this position.
three outstanding points may be mentioned. In
the first place, the Mojal, decision was concurred
The other view which advocated the rule that statutes which prescribe in by only four members of the court, less than a
the formalities that should be observed in the execution of wills are majority, with two strong dissenting opinions; the
mandatory in nature and are to be strictly construed was followed in Quintana decision was concurred in by seven
the subsequent cases of In the Matter of the Estate of Saguinsin, 43 In members of the court, a clear majority, with one
re Will of Andrada, 44 Uy Coque vs. Sioca, 45 In re Estate of formal dissent. In the second place, the Mojal
Neumark, 46 and Sano vs. Quintana. 47 decision was promulgated in December, 1924,
while the Quintana decision was promulgated in
December, 1925; the Quintana decision was thus
Gumban vs. Gorecho, et al., 48 provided the Court with the occasion to
subsequent in point of time. And in the third
clarify the seemingly conflicting decisions in the aforementioned cases.
place, the Quintana decision is believed more
In said case of Gumban, the attestation clause had failed to state that
nearly to conform to the applicable provisions of
the witnesses signed the will and each and every page thereof on the
the law.
left margin in the presence of the testator. The will in question was
disallowed, with these reasons therefor:
The right to dispose of property by will is
governed entirely by statute. The law of the case
In support of their argument on the assignment of
is here found in section 61 of the Code of Civil
error above-mentioned, appellants rely on a series
Procedure as amended by Act No. 2645, and in
of cases of this court beginning with (I)n the
section 634 of the same Code, as unamended. It
Matter of the (E)state of Saguinsin ([1920], 41
is in part provided in section 61, as amended that
Phil., 875), continuing with In re Will of Andrada
"No will . . . shall be valid . . . unless . . .." It is
[1921], 42 Phil., 180), Uy Coque vs. Navas L.
further provided in the same section that "The
Sioca [1922], 43 Phil., 405), and In re Estate of
attestation shall state the number of sheets or
Neumark ([1923], 46 Phil., 841), and ending
pages used, upon which the will is written, and
with Sano vs. Quintana([1925], 48 Phil., 506).
the fact that the testator signed the will and every
Appellee counters with the citation of a series of
page thereof, or caused some other person to
cases beginning withAbangan vs.
write his name, under his express direction, in the
Abangan ([1919], 40 Phil., 476), continuing
presence of three witnesses, and the latter
through Aldaba vs. Roque ([1922], 43 Phil., 378),
witnessed and signed the will and all pages
and Fernandez vs. Vergel de Dios ([1924], 46
thereof in the presence of the testator and of each
Phil., 922), and culminating in Nayve vs. Mojal and
other." Codal section 634 provides that "The
Aguilar ([1924], 47 Phil., 152). In its last analysis,
will shall be disallowed in either of the following
our task is to contrast and, if possible, conciliate
case: 1. If not executed and attested as in this Act
the last two decisions cited by opposing counsel,
82
Wills and Succession Case Digests
provided." The law not alone carefully makes use of the manner of executing wills, article 829 of the
of the imperative, but cautiously goes further and Project is recommended, which reads:
makes use of the negative, to enforce legislative
intention. It is not within the province of the
"Art. 829. In the absence of
courts to disregard the legislative purpose so
bad faith, forgery, or fraud, or
emphatically and clearly expressed.
undue and improper pressure
and influence, defects and
We adopt and reaffirm the decision in the case imperfections in the form of
of Sano vs. Quintana, supra, and, to the extent attestation or in the language
necessary, modify the decision in the case used therein shall not render
of Nayve vs. Mojal and Aguilar, supra. (Emphases the will invalid if it is proved
in the original text). that the will was in fact
executed and attested in
substantial compliance with all
But after the Gumban clarificatory pronouncement, there were
the requirements of article
decisions of the Court that once more appeared to revive the seeming
829." 65
diversity of views that was earlier threshed out therein. The cases
of Quinto vs. Morata, 49Rodriguez vs. Alcala, 50 Enchevarria vs.
Sarmiento, 51 and Testate Estate of Toray 52 went the way of the ruling The so-called liberal rule, the Court said in Gil vs. Murciano, 66 "does
as restated in Gumban. But De Gala vs. Gonzales, et al., 53 Rey vs. not offer any puzzle or difficulty, nor does it open the door to serious
Cartagena, 54 De Ticson vs. De Gorostiza, 55Sebastian vs. consequences. The later decisions do tell us when and where to stop;
Panganiban, 56 Rodriguez vs. Yap, 57 Grey vs. Fabia, 58 Leynez vs. they draw the dividing line with precision. They do not allow
Leynez, 59 Martir vs. Martir, 60Alcala vs. De Villa, 61 Sabado vs. evidence aliunde to fill a void in any part of the document or supply
Fernandez, 62 Mendoza vs. Pilapil, 63 and Lopez vs. Liboro, 64 veered missing details that should appear in the will itself. They only permit a
away from the strict interpretation rule and established a trend toward probe into the will, an exploration into its confines, to ascertain its
an application of the liberal view. meaning or to determine the existence or absence of the requisite
formalitie