G.R. No.
L-1787 August 27, 1948 The purpose of the law in prescribing the paging of wills is guard against fraud,
Testacy of Sixto Lopez. JOSE S. LOPEZ, petitioner-appellee,
vs.
AGUSTIN LIBORO, oppositor-appellant.
Tirona, Gutierrez and Adorable for appellant.
Ramon Diokno for appellee.
TUASON, J.:
In the Court of First Instance of Batangas the appellant opposed
unsuccessfully the probate of what purports to be the last will and testament
(Exhibit A) of Don Sixto Lopez, who died at the age of 83 in Balayan,
Batangas, on March 3, 1947, almost six months after the document in question
was executed. In the court below, the present appellant specified five grounds
for his opposition, to wit: (1) that the deceased never executed the alleged will;
(2) that his signature appearing in said will was a forgery; (3) that at the time of
the execution of the will, he was wanting in testamentary as well as mental
capacity due to advanced age; (4) that, if he did ever execute said will, it was
not executed and attested as required by law, and one of the alleged
instrumental witnesses was incapacitated to act as such; and it was procured
by duress, influence of fear and threats and undue and improper pressure and
influence on the part of the beneficiaries instituted therein, principally the
testator's sister, Clemencia Lopez, and the herein proponent, Jose S. Lopez;
and (5) that the signature of the testator was procured by fraud or trick.
In this instance only one of these objections is reiterated, formulated in these
words: "That the court a quo erred in holding that the document Exhibit "A"
was executed in all particulars as required by law." To this objection is added
the alleged error of the court "in allowing the petitioner to introduce evidence
that Exhibit "A" was written in a language known to the
decedent after petitioner rested his case and over the vigorous objection of the
oppositor.
The will in question comprises two pages, each of which is written on one side
of a separate sheet. The first sheet is not paged either in letters or in Arabic
numerals. This, the appellant believes, is a fatal defect.
and to afford means of preventing the substitution or of defecting the loss of
any of its pages. (Abangan vs. Abangan, 40 Phil., 476.) In the present case,
the omission to put a page number on the first sheet, if that be necessary, is
supplied by other forms of identification more trustworthy than the conventional
numerical words or characters. The unnumbered page is clearly identified as
the first page by the internal sense of its contents considered in relation to the
contents of the second page. By their meaning and coherence, the first and
second lines on the second page are undeniably a continuation of the last
sentence of the testament, before the attestation clause, which starts at the
bottom of the preceding page. Furthermore, the unnumbered page contains
the caption "TESTAMENTO," the invocation of the Almighty, and a recital that
the testator was in full use of his testamentary faculty, — all of which, in the
logical order of sequence, precede the direction for the disposition of the
marker's property. Again, as page two contains only the two lines above
mentioned, the attestation clause, the mark of the testator and the signatures
of the witnesses, the other sheet can not by any possibility be taken for other
than page one. Abangan vs. Abangan, supra, and Fernandez vs. Vergel de
Dios, 46 Phil., 922 are decisive of this issue.
Although not falling within the purview and scope of the first assignment of
error, the matter of the credibility of the witnesses is assailed under this
heading. On the merits we do not believe that the appellant's contention
deserves serious consideration. Such contradictions in the testimony of the
instrumental witnesses as are set out in the appellant's brief are incidents not
all of which every one of the witnesses can be supposed to have perceived, or
to recall in the same order in which they occurred.
Everyday life and the result of investigations made in the field of
experimental psychology show that the contradictions of witnesses
generally occur in the details of a certain incident, after a long series of
questioning, and far from being an evidence of falsehood constitute a
demonstration of good faith. Inasmuch as not all those who witness an
incident are impressed in like manner, it is but natural that in relating
their impressions they should not agree in the minor details; hence, the
contradictions in their testimony. (People vs. Limbo, 49 Phil., 99.)
The testator affixed his thumbmark to the instrument instead of signing his
name. The reason for this was that the testator was suffering from "partial
paralysis." While another in testator's place might have directed someone else
to sign for him, as appellant contends should have been done, there is nothing
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curious or suspicious in the fact that the testator chose the use of mark as the
means of authenticating his will. It was a matter of taste or preference. Both
ways are good. A statute requiring a will to be "signed" is satisfied if the
signature is made by the testator's mark. (De Gala vs. Gonzales and Ona, 53
Phil., 108; 28 R. C. L., 117.)
With reference to the second assignment of error, we do not share the opinion
that the trial court communicated an abuse of discretion in allowing the
appellant to offer evidence to prove knowledge of Spanish by the testator, the
language in which the will is drawn, after the petitioner had rested his case and
after the opponent had moved for dismissal of the petition on the ground of
insufficiency of evidence. It is within the discretion of the court whether or not
to admit further evidence after the party offering the evidence has rested, and
this discretion will not be reviewed except where it has clearly been abused.
(64 C. J., 160.) More, it is within the sound discretion of the court whether or
not it will allow the case to be reopened for the further introduction of evidence
after a motion or request for a nonsuit, or a demurrer to the evidence, and the
case may be reopened after the court has announced its intention as to its
ruling on the request, motion, or demurrer, or has granted it or has denied the
same, or after the motion has been granted, if the order has not been written,
or entered upon the minutes or signed. (64 C. J., 164.)
In this jurisdiction this rule has been followed. After the parties have produced
their respective direct proofs, they are allowed to offer rebutting evidence only,
but, it has been held, the court, for good reasons, in the furtherance of justice,
may permit them to offer evidence upon their original case, and its ruling will
not be disturbed in the appellate court where no abuse of discretion appears.
(Siuliong and Co. vs. Ylagan, 43 Phil., 393; U. S. vs. Alviar, 36 Phil., 804.) So,
generally, additional evidence is allowed when it is newly discovered, or where
it has been omitted through inadvertence or mistake, or where the purpose of
the evidence is to the evidence is to correct evidence previously offered. (I
Moran's Comments on the Rules of Court, 2d ed., 545; 64 C. J., 160-163.) The
omission to present evidence on the testator's knowledge of Spanish had not
been deliberate. It was due to a misapprehension or oversight.
Although alien to the second assignment of error, the appellant impugns the
will for its silence on the testator's understanding of the language used in the
testament. There is no statutory requirement that such knowledge be
expressly stated in the will itself. It is a matter that may be established by proof
aliunde. This Court so impliedly ruled in Gonzales vs. Laurel, 46 Phil., 781, in
which the probate of a will written in Tagalog was ordered although it did not
say that the testator knew that idiom. In fact, there was not even extraneous
proof on the subject other than the fact that the testator resided in a Tagalog
region, from which the court said "a presumption arises that said Maria Tapia
knew the Tagalog dialect.
The order of the lower court ordering the probate of the last will and testament
of Don Sixto Lopez is affirmed, with costs.
A.M. No. 2026-CFI December 19, 1981
NENITA DE VERA SUROZA, complainant,
vs.
JUDGE REYNALDO P. HONRADO of the Court of First Instance of Rizal,
Pasig Branch 25 and EVANGELINE S. YUIPCO, Deputy Clerk of
Court, respondents.
AQUINO, J.:
Should disciplinary action be taken against respondent judge for having
admitted to probate a will, which on its face is void because it is written in
English, a language not known to the illiterate testatrix, and which is probably
a forged will because she and the attesting witnesses did not appear before
the notary as admitted by the notary himself?
That question arises under the pleadings filed in the testate case and in the
certiorari case in the Court of Appeals which reveal the following tangled
strands of human relationship:
Mauro Suroza, a corporal in the 45th Infantry of the U.S. Army (Philippine
Scouts), Fort McKinley, married Marcelina Salvador in 1923 (p. 150, Spec.
Proc. No. 7816). They were childless. They reared a boy named Agapito who
used the surname Suroza and who considered them as his parents as shown
in his 1945 marriage contract with Nenita de Vera (p. 15, Rollo of CA-G.R. No.
08654-R; p. 148, Rollo of Testate Case showing that Agapito was 5 years old
when Mauro married Marcelina in 1923).
Mauro died in 1942. Marcelina, as a veteran's widow, became a pensioner of
the Federal Government. That explains why on her death she had
accumulated some cash in two banks.
Page 2 of 62
Agapito and Nenita begot a child named Lilia who became a medical
technologist and went abroad. Agapito also became a soldier. He was disabled
and his wife Nenita was appointed as his guardian in 1953 when he was
declared an incompetent in Special Proceeding No. 1807 of the Court of First
Instance of Rizal, Pasig Branch I (p. 16, Rollo of CA-G.R. No. 08654-R).
In that connection, it should be noted that a woman named Arsenia de la Cruz
wanted also to be his guardian in another proceeding. Arsenia tried to prove
that Nenita was living separately from Agapito and that she (Nenita) admitted
to Marcelina that she was unfaithful to Agapito (pp. 61-63, Record of testate
case).
Judge Bienvenido A. Tan dismissed the second guardianship proceeding and
confirmed Nenita's appointment as guardian of Agapito (p. 16, Rollo of CA
case). Agapito has been staying in a veteran's hospital in San Francisco or
Palo Alto, California (p. 87, Record).
On a date not indicated in the record, the spouses Antonio Sy and Hermogena
Talan begot a child named Marilyn Sy, who, when a few days old, was
entrusted to Arsenia de la Cruz (apparently a girl friend of Agapito) and who
was later delivered to Marcelina Salvador Suroza who brought her up as a
supposed daughter of Agapito and as her granddaughter (pp. 23-26, Rollo of
CA-G.R. No.SP-08654-R). Marilyn used the surname Suroza. She stayed with
Marcelina but was not legally adopted by Agapito. She married Oscar Medrano
and is residing at 7666 J.B. Roxas Street, Makati, apparently a neighbor of
Marina Paje, a resident of 7668 J.B. Roxas Street.
Marcelina supposedly executed a notarial will in Manila on July 23, 1973, when
she was 73 years old. That will which is in English was thumbmarked by
her. She was illiterate. Her letters in English to the Veterans Administration
were also thumbmarked by her (pp. 38-39, CA Rollo). In that wig, Marcelina
bequeathed all her estate to her supposed granddaughter Marilyn.
Marcelina died on November 15, 1974 at the Veterans Hospital in Quezon City.
At the time of her death, she was a resident of 7374 San Maximo Street,
Olimpia, Makati, Rizal. She owned a 150-square meter lot and house in that
place. She acquired the lot in 1966 (p. 134, Record of testate case).
On January 13, 1975, Marina Paje, alleged to be a laundrywoman of Marcelina
(P. 97, CA Rollo) and the executrix in her will (the alternate executrix was
Juanita Macaraeg, mother of Oscar, Marilyn's husband), filed with the Court of
First Instance of Rizal, Pasig Branch 25, a petition for the probate of
Marcelina's alleged will. The case was assigned to Judge Reynaldo P.
Honrado.
As there was no opposition, Judge Honrado commissioned his deputy clerk of
court, Evangeline S. Yuipco, to hear the evidence. The transcripts of the
stenographic notes taken at the hearing before the deputy clerk of court are
not in the record.
In an order dated March 31, 1975, Judge Honrado appointed Marina as
administratrix. On the following day, April 1, Judge Honrado issued two orders
directing the Merchants Banking Corporation and the Bank of America to allow
Marina to withdraw the sum of P10,000 from the savings accounts of
Marcelina S. Suroza and Marilyn Suroza and requiring Corazon Castro, the
custodian of the passbooks, to deliver them to Marina.
Upon motion of Marina, Judge Honrado issued another order dated April 11,
1975, instructing a deputy sheriff to eject the occupants of the testatrix's
house, among whom was Nenita V. Suroza, and to place Marina in possession
thereof.
That order alerted Nenita to the existence of the testamentary proceeding for
the settlement of Marcelina's estate. She and the other occupants of the
decedent's house filed on April 18 in the said proceeding a motion to set aside
the order of April 11 ejecting them. They alleged that the decedent's son
Agapito was the sole heir of the deceased, that he has a daughter named Lilia,
that Nenita was Agapito's guardian and that Marilyn was not Agapito's
daughter nor the decedent's granddaughter (pp. 52-68, Record of testate
case). Later, they questioned the probate court's jurisdiction to issue the
ejectment order.
In spite of the fact that Judge Honrado was already apprised that persons,
other than Marilyn, were claiming Marcelina's estate, he issued on April 23 an
order probating her supposed will wherein Marilyn was the instituted heiress
(pp. 74-77, Record).
On April 24, Nenita filed in the testate case an omnibus petition "to set aside
proceedings, admit opposition with counter-petition for administration and
preliminary injunction". Nenita in that motion reiterated her allegation that
Marilyn was a stranger to Marcelina, that the will was not duly executed and
attested, that it was procured by means of undue influence employed by
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Marina and Marilyn and that the thumbmarks of the testatrix were procured by
fraud or trick.
Nenita further alleged that the institution of Marilyn as heir is void because of
the preterition of Agapito and that Marina was not qualified to act as executrix
(pp. 83-91, Record).
To that motion was attached an affidavit of Zenaida A. Penaojas the
housemaid of Marcelina, who swore that the alleged will was falsified (p. 109,
Record).
Not content with her motion to set aside the ejectment order (filed on April 18)
and her omnibus motion to set aside the proceedings (filed on April 24), Nenita
filed the next day, April 25, an opposition to the probate of the will and a
counter-petition for letters of administration. In that opposition, Nenita assailed
the due execution of the will and stated the names and addresses of
Marcelina's intestate heirs, her nieces and nephews (pp. 113-121, Record).
Nenita was not aware of the decree of probate dated April 23, 1975.
To that opposition was attached an affidavit of Dominga Salvador Teodocio,
Marcelina's niece, who swore that Marcelina never executed a win (pp. 124-
125, Record).
Marina in her answer to Nenita's motion to set aside the proceedings admitted
that Marilyn was not Marcelina's granddaughter but was the daughter of
Agapito and Arsenia de la Cruz and that Agapito was not Marcelina's son but
merely an anak-anakan who was not legally adopted (p. 143, Record).
Judge Honrado in his order of July 17, 1975 dismissed Nenita's counter-
petition for the issuance of letters of administration because of the non-
appearance of her counsel at the hearing. She moved for the reconsideration
of that order.
In a motion dated December 5, 1975, for the consolidation of all pending
incidents, Nenita V. Suroza reiterated her contention that the alleged will is
void because Marcelina did not appear before the notary and because it is
written in English which is not known to her (pp. 208-209, Record).
Judge Honrado in his order of June 8, 1976 "denied" the various incidents
"raised" by Nenita (p. 284, Record).
Instead of appealing from that order and the order probating the wig, Nenita
"filed a case to annul" the probate proceedings (p. 332, Record). That case,
Civil Case No. 24276, Suroza vs. Paje and Honrado (p. 398, Record), was
also assigned to Judge Honrado. He dismissed it in his order of February 16,
1977 (pp. 398-402, Record).
Judge Honrado in his order dated December 22, 1977, after noting that the
executrix had delivered the estate to Marilyn, and that the estate tax had been
paid, closed the testamentary proceeding.
About ten months later, in a verified complaint dated October 12, 1978, filed in
this Court, Nenita charged Judge Honrado with having probated the fraudulent
will of Marcelina. The complainant reiterated her contention that the testatrix
was illiterate as shown by the fact that she affixed her thumbmark to the will
and that she did not know English, the language in which the win was written.
(In the decree of probate Judge Honrado did not make any finding that the will
was written in a language known to the testatrix.)
Nenita further alleged that Judge Honrado, in spite of his knowledge that the
testatrix had a son named Agapito (the testatrix's supposed sole compulsory
and legal heir), who was preterited in the will, did not take into account the
consequences of such a preterition.
Nenita disclosed that she talked several times with Judge Honrado and
informed him that the testatrix did not know the executrix Marina Paje, that the
beneficiary's real name is Marilyn Sy and that she was not the next of kin of
the testatrix.
Nenita denounced Judge Honrado for having acted corruptly in allowing
Marina and her cohorts to withdraw from various banks the deposits Marcelina.
She also denounced Evangeline S. Yuipco, the deputy clerk of court, for not
giving her access to the record of the probate case by alleging that it was
useless for Nenita to oppose the probate since Judge Honrado would not
change his decision. Nenita also said that Evangeline insinuated that if she
(Nenita) had ten thousand pesos, the case might be decided in her favor.
Evangeline allegedly advised Nenita to desist from claiming the properties of
the testatrix because she (Nenita) had no rights thereto and, should she
persist, she might lose her pension from the Federal Government.
Page 4 of 62
Judge Honrado in his brief comment did not deal specifically with the
allegations of the complaint. He merely pointed to the fact that Nenita did not
appeal from the decree of probate and that in a motion dated July 6, 1976 she
asked for a thirty day period within which to vacate the house of the testatrix.
Evangeline S. Yuipco in her affidavit said that she never talked with Nenita and
that the latter did not mention Evangeline in her letter dated September 11,
1978 to President Marcos.
Evangeline branded as a lie Nenita's imputation that she (Evangeline)
prevented Nenita from having access to the record of the testamentary
proceeding. Evangeline was not the custodian of the record. Evangeline "
strongly, vehemently and flatly denied" Nenita's charge that she (Evangeline)
said that the sum of ten thousand pesos was needed in order that Nenita could
get a favorable decision. Evangeline also denied that she has any knowledge
of Nenita's pension from the Federal Government.
The 1978 complaint against Judge Honorado was brought to attention of this
Court in the Court Administrator's memorandum of September 25, 1980. The
case was referred to Justice Juan A. Sison of the Court of Appeals for
investigation, report and recommendation. He submitted a report dated
October 7, 1981.
On December 14, 1978, Nenita filed in the Court of Appeals against Judge
Honrado a petition for certiorari and prohibition wherein she prayed that the
will, the decree of probate and all the proceedings in the probate case be
declared void.
Attached to the petition was the affidavit of Domingo P. Aquino, who notarized
the will. He swore that the testatrix and the three attesting witnesses did not
appear before him and that he notarized the will "just to accommodate a
brother lawyer on the condition" that said lawyer would bring to the notary the
testatrix and the witnesses but the lawyer never complied with his
commitment.
The Court of Appeals dismissed the petition because Nenita's remedy was an
appeal and her failure to do so did not entitle her to resort to the special civil
action of certiorari (Suroza vs. Honrado, CA-G.R. No. SP-08654, May 24,
1981).
Relying on that decision, Judge Honrado filed on November 17, 1981 a motion
to dismiss the administrative case for having allegedly become moot and
academic.
We hold that disciplinary action should be taken against respondent judge for
his improper disposition of the testate case which might have resulted in a
miscarriage of justice because the decedent's legal heirs and not the instituted
heiress in the void win should have inherited the decedent's estate.
A judge may be criminally liable or knowingly rendering an unjust judgment or
interlocutory order or rendering a manifestly unjust judgment or interlocutory
order by reason of inexcusable negligence or ignorance (Arts. 204 to 206,
Revised Penal Code).
Administrative action may be taken against a judge of the court of first instance
for serious misconduct or inefficiency ( Sec. 67, Judiciary Law). Misconduct
implies malice or a wrongful intent, not a mere error of judgment. "For serious
misconduct to exist, there must be reliable evidence showing that the judicial
acts complained of were corrupt or inspired by an intention to violate the law,
or were in persistent disregard of well-known legal rules" (In re lmpeachment
of Horrilleno, 43 Phil. 212, 214-215).
Inefficiency implies negligence, incompetence, ignorance and carelessness. A
judge would be inexcusably negligent if he failed to observe in the
performance of his duties that diligence, prudence and circumspection which
the law requires in the rendition of any public service (In re Climaco, Adm.
Case No. 134-J, Jan. 21, 1974, 55 SCRA 107, 119).
In this case, respondent judge, on perusing the will and noting that it was
written in English and was thumbmarked by an obviously illiterate testatrix,
could have readily perceived that the will is void.
In the opening paragraph of the will, it was stated that English was a language
"understood and known" to the testatrix. But in its concluding paragraph, it was
stated that the will was read to the testatrix "and translated into Filipino
language". (p. 16, Record of testate case). That could only mean that the will
was written in a language not known to the illiterate testatrix and, therefore, it
is void because of the mandatory provision of article 804 of the Civil Code that
every will must be executed in a language or dialect known to the testator.
Thus, a will written in English, which was not known to the Igorot testator, is
void and was disallowed (Acop vs. Piraso, 52 Phil. 660).
Page 5 of 62
The hasty preparation of the will is shown in the attestation clause and notarial
acknowledgment where Marcelina Salvador Suroza is repeatedly referred to
as the "testator" instead of "testatrix".
Had respondent judge been careful and observant, he could have noted not
only the anomaly as to the language of the will but also that there was
something wrong in instituting the supposed granddaughter as sole heiress
and giving nothing at all to her supposed father who was still alive.
Furthermore, after the hearing conducted by respondent deputy clerk of court,
respondent judge could have noticed that the notary was not presented as a
witness.
In spite of the absence of an opposition, respondent judge should have
personally conducted the hearing on the probate of the will so that he could
have ascertained whether the will was validly executed.
Under the circumstances, we find his negligence and dereliction of duty to be
inexcusable.
WHEREFORE, for inefficiency in handling the testate case of Marcelina S.
Suroza, a fine equivalent to his salary for one month is imposed on respondent
judge (his compulsory retirement falls on December 25, 1981).
The case against respondent Yuipco has become moot and academic
because she is no longer employed in the judiciary. Since September 1, 1980
she has been assistant city fiscal of Surigao City. She is beyond this Court's
disciplinary jurisdiction (Peralta vs. Firm Adm. Matter No. 2044-CFI November
21, 1980, 101 SCRA 225).
SO ORDERED.
G.R. No. L-13431 November 12, 1919
In re will of Ana Abangan.
GERTRUDIS ABANGAN, executrix-appellee,
vs.
ANASTACIA ABANGAN, ET AL., opponents-appellants.
Filemon Sotto for appellants.
M. Jesus Cuenco for appellee.
AVANCEÑA, J.:
On September 19, 1917, the Court of First Instance of Cebu admitted to
probate Ana Abangan's will executed July, 1916. From this decision the
opponent's appealed.
Said document, duly probated as Ana Abangan's will, consists of two sheets,
the first of which contains all of the disposition of the testatrix, duly signed at
the bottom by Martin Montalban (in the name and under the direction of the
testatrix) and by three witnesses. The following sheet contains only the
attestation clause duly signed at the bottom by the three instrumental
witnesses. Neither of these sheets is signed on the left margin by the testatrix
and the three witnesses, nor numbered by letters; and these omissions,
according to appellants' contention, are defects whereby the probate of the will
should have been denied. We are of the opinion that the will was duly admitted
to probate.
In requiring that each and every sheet of the will should also be signed on the
left margin by the testator and three witnesses in the presence of each other,
Act No. 2645 (which is the one applicable in the case) evidently has for its
object (referring to the body of the will itself) to avoid the substitution of any of
said sheets, thereby changing the testator's dispositions. But when these
dispositions are wholly written on only one sheet signed at the bottom by the
testator and three witnesses (as the instant case), their signatures on the left
margin of said sheet would be completely purposeless. In requiring this
signature on the margin, the statute took into consideration, undoubtedly, the
case of a will written on several sheets and must have referred to the sheets
which the testator and the witnesses do not have to sign at the bottom. A
different interpretation would assume that the statute requires that this sheet,
already signed at the bottom, be signed twice. We cannot attribute to the
statute such an intention. As these signatures must be written by the testator
and the witnesses in the presence of each other, it appears that, if the
signatures at the bottom of the sheet guaranties its authenticity, another
signature on its left margin would be unneccessary; and if they do not
guaranty, same signatures, affixed on another part of same sheet, would add
nothing. We cannot assume that the statute regards of such importance the
place where the testator and the witnesses must sign on the sheet that it would
consider that their signatures written on the bottom do not guaranty the
authenticity of the sheet but, if repeated on the margin, give sufficient security.
Page 6 of 62
In requiring that each and every page of a will must be numbered correlatively For the foregoing considerations, the judgment appealed from is hereby
in letters placed on the upper part of the sheet, it is likewise clear that the affirmed with costs against the appellants. So ordered.
object of Act No. 2645 is to know whether any sheet of the will has been
removed. But, when all the dispositive parts of a will are written on one sheet
only, the object of the statute disappears because the removal of this single
sheet, although unnumbered, cannot be hidden.
G.R. No. 42258 September 5, 1936
What has been said is also applicable to the attestation clause. Wherefore,
without considering whether or not this clause is an essential part of the will, In re Will of the deceased Leoncia Tolentino. VICTORIO PAYAD, petitioner-
we hold that in the one accompanying the will in question, the signatures of the appellant,
testatrix and of the three witnesses on the margin and the numbering of the vs.
pages of the sheet are formalities not required by the statute. Moreover, AQUILINA TOLENTINO, oppositor-appellant.
referring specially to the signature of the testatrix, we can add that same is not
necessary in the attestation clause because this, as its name implies, Vicente Foz, Marciano Almario, and Leonardo Abola for petitioner-appellant.
appertains only to the witnesses and not to the testator since the latter does Leodegario Azarraga for oppositor-appellant.
not attest, but executes, the will.
DIAZ, J.:
Synthesizing our opinion, we hold that in a will consisting of two sheets the first
of which contains all the testamentary dispositions and is signed at the bottom There are two motions filed by the oppositor Aquilina Tolentino, pending
by the testator and three witnesses and the second contains only the resolution: That of January 29, 1935, praying for the reconsideration of the
attestation clause and is signed also at the bottom by the three witnesses, it is decision of the court and that of the same date, praying for a new trial.
not necessary that both sheets be further signed on their margins by the
testator and the witnesses, or be paged. The oppositor bases her motion for reconsideration upon the following facts
relied upon in her pleading:
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 1. That the testatrix did not personally place her thumbmark on her alleged will;
and to guaranty their truth and authenticity. Therefore the laws on this subject
should be interpreted in such a way as to attain these primordal ends. But, on 2. That the testatrix did not request Attorney Almario to write her name and
the other hand, also one must not lose sight of the fact that it is not the object surname on the spaces of the will where she should place her thumbmarks;
of the law to restrain and curtail the exercise of the right to make a will. So
when an interpretation already given assures such ends, any other
3. That the will in question was not signed by the testatrix on the date indicated
interpretation whatsoever, that adds nothing but demands more requisites
therein;
entirely unnecessary, useless and frustative of the testator's last will, must be
disregarded.
4. That the testatrix never made the will in question; and
lawphil.net

As another ground for this appeal, it is alleged the records do not show that the
testarix knew the dialect in which the will is written. But the circumstance
appearing in the will itself that same was executed in the city of Cebu and in
the dialect of this locality where the testatrix was a neighbor is enough, in the
absence of any proof to the contrary, to presume that she knew this dialect in
which this will is written.
5. That on the date the will in question was executed, the testatrix was no
longer in a physical or mental condition to make it.
We have again reviewed the evidence to determine once more whether the
errors assigned by the oppositor in her brief have not been duly considered,
whether some fact or detail which might have led us to another conclusion has
Page 7 of 62
been overlooked, or whether the conclusions arrived at in our decision are not
supported by the evidence. We have found that the testatrix Leoncia Tolentino,
notwithstanding her advanced age of 92 years, was in good health until
September 1, 1933. She had a slight cold on said date for which reason she
was visited by her physician, Dr. Florencio Manuel. Said physician again
visited her three or four days later and found her still suffering from said illness
but there was no indication that she had but a few days to live. She ate
comparatively well and conserved her mind and memory at least long after
noon of September 7, 1933. She took her last nourishment of milk in the
morning of the following day, September 8, 1933, and death did not come to
her until 11 o'clock sharp that morning.
The will in question was prepared by Attorney Marciano Almario between 11
and 12 o'clock noon on September 7, 1933, in the house of the testatrix
Leoncia Tolentino, after she had expressed to said attorney her desire to make
a will and bequeath her property to the petitioner Victorio Payad in
compensation according to her, for his diligent and faithful services rendered to
her. Victorio Payad had grown up under the care of the testatrix who had been
in her home from childhood. The will was written by Attorney Almario in his
own handwriting, and was written in Spanish because he had been instructed
to do so by the testatrix. It was later read to her in the presence of Pedro L.
Cruz, Jose Ferrer Cruz, Perfecto L. Ona and other persons who were then
present. The testatrix approved all the contents of the document and
requested Attorney Almario to write her name where she had to sign by means
of her thumbmark in view of the fact that her fingers no longer had the
necessary strength to hold a pen. She did after having taken the pen and tried
to sign without anybody's help. Attorney Almario proceeded to write the name
of the testatrix on the three pages composing the will and the testatrix placed
her thumbmark on said writing with the help of said attorney, said help
consisting in guiding her thumb in order to place the mark between her name
and surname, after she herself had moistened the tip of her thumb with which
she made such mark, on the ink pad which was brought to her for said
purpose. Said attorney later signed the three pages of the will in the presence
of the testatrix and also of Pedro L. Cruz, and Jose Ferrer Cruz and Perfecto
L. Ona, who, in turn, forthwith signed it successively and exactly under the
same circumstances above stated.
In support of her claim that the testatrix did not place her thumbmark on the
will on September 7, 1983, and that she never made said will because she
was no longer physically or mentally in a condition do so, the oppositor cites
the testimony of Julian Rodriguez, Gliceria Quisonia, Paz de Leon and her
own.
Julian Rodriguez and Gliceria Quisonia testified that they had not seen
Attorney Almario in the morning of September 7, 1933, in the house of the
deceased where they were then living, and that the first time that they saw him
there was at about 12 o'clock noon on September 8th of said year, when
Leoncia Tolentino was already dead, Gliceria Quisonia stating that on that
occasion Almario arrived there accompanied only by woman named Pacing.
They did not state that Almario was accompanied by Pedro L. Cruz, Jose
Ferrer Cruz and Perfecto L. Ona, the instrumental witnesses of the will. Said
two witnesses, however, could not but admit that their room was situated at the
other end of the rooms occupied by the deceased herself and by the petitioner
Victorio Payad, and that their said room and that of Victorio Payad are
separated by the stairs of the house; that Gliceria Quisonia saw the deceased
only once on the 7th and twice on the 8th, and that Julian Rodriguez stayed in
his room, without leaving it, from 9 to 12 o'clock a. m. on the 7th of said month.
Gliceria Quisonia further stated that in the morning of September 7th, she
prepared the noonday meal in the kitchen which was situated under the house.
Under such circumstances it is not strange that the two did not see the testatrix
when, according to the evidence for the petitioner, she made her will and
signed it by means of her thumbmark. In order to be able to see her and also
Almario and the instrumental witnesses of the will, on that occasion, it was
necessary for them to enter the room where the deceased was, or at least the
adjoining room where the will was prepared by Attorney Almario, but they did
not do so.
Gliceria Quisonia and Julian Rodriguez also testified that on the 7th the
testatrix was already so weak that she could not move and that she could
hardly be understood because she could no longer enunciate, making it
understood thereby, that in such condition it was absolutely impossible for her
to make any will. The attorney for the oppositor insists likewise and more so
because, according to him and his witness Paz de Leon, two days before the
death of the testatrix, or on September 6, 1933, she could not even open her
eyes or make herself understood.
The testimony of said witnesses is not sufficient to overthrow, or discredit the
testimony of the petitioner-appellant or that of Attorney Almario and the three
instrumental witnesses of the will because, to corroborate them, we have of
record the testimony of the physician of the deceased and the accountant
Ventura Loreto who are two disinterested witnesses, inasmuch as the outcome
of these proceedings does not affect them in the least. The two testified that
two, three or four days before the death of the testatrix, they visited her in her
home, the former professionally, and the latter as an acquaintance, and they
then found her not so ill as to be unable to move or hold a conversation. They
Page 8 of 62
stated that she spoke to them intelligently; that she answered all the questions
which they had put to her, and that she could still move in spite of her
weakness.
In view of the foregoing facts and considerations, we deem it clear that the
oppositor's motion for reconsideration is unfounded.
The oppositor's motion for a new trial is based upon the following facts: (1)
That upon her death, the deceased left a letter signed by herself, placed in a
stamped envelope and addressed to Teodoro R. Yangco, with instructions not
to open it until after her death; (2) that there are witnesses competent to testify
on the letter in question, in addition to other evidence discovered later, which
could not be presented at the trial; (3) that in the letter left by the deceased,
she transfers all her property to Teodoro R. Yangco stating therein that, upon
her death, all the property in question should become Yangco's. From this
alleged fact, the oppositor infers that the deceased never had and could not
have had the intention to make the will in question, and (4) that said oppositor
knew of the existence of said letter only after her former attorney, Alejandro
Panis, had been informed thereof in May, 1935, by one of Teodoro R. Yangco's
attorneys named Jose Cortes.
Subsequent to the presentation of the motion for a new trial, the oppositor filed
another supplementary motion alleging that she had discovered some
additional new evidence consisting in the affidavit of Attorney Gabino
Fernando Viola wherein the latter affirms that Victorio Payad had called him on
September 5, 1933, to prepare the will of the deceased but he did not do so
because after seeing her he had been convinced that she could not make a
will because she had lost her speech and her eyes were already closed.
The affidavits of Attorneys Jose Cortes and Gabino Fernando Viola,
substantially affirming the facts alleged by the oppositor, are attached to both
motions for a new trial.
The affidavits of Attorneys Jose Cortes and Gabino Fernando Viola are not and
cannot be newly discovered evidence, and are not admissible to warrant the
holding of a new trial, because the oppositor had been informed of the facts
affirmed by Attorney Jose Cortes in his affidavit long before this case was
decided by this court. It is stated in said affidavit that in May, 1935, Attorney
Jose Cortes revealed to the attorney for oppositor the fact that the deceased
had left a letter whereby she transferred all her property to Teodoro R. Yangco,
and the judgment was rendered only on January 15, 1936, or eight months
later.
The oppositor contends that she had no reason to inform the court of said
newly discovered evidence inasmuch as the judgment of the lower court was
favorable to her. She, however, overlooks the fact that she also appealed from
the decision of the lower court and it was her duty, under the circumstances, to
inform this court of the discovery of said allegedly newly discovered evidence
and to take advantage of the effects thereof because, by so doing, she could
better support her claim that the testatrix made no will, much less the will in
question. Said evidence, is not new and is not of the nature of that which gives
rise to a new trial because, under the law, in order that evidence may be
considered newly discovered evidence and may serve as a ground for a new
trial, it is necessary (a) that it could not have been discovered in time, even by
the exercise of due diligence; (b) that it be material, and (c) that it also be of
such a character as probably to change the result if admitted (section 497, Act
No. 190; Banal vs. Safont, 8 Phil., 276).
The affidavit of Attorney Cortes is neither material nor important in the sense
that, even considering it newly discovered evidence, it will be sufficient to
support the decision of the lower court and modify that of this court. It is simply
hearsay or, at most, corroborative evidence. The letter of the deceased
Leoncia Tolentino to Teodoro R. Yangco would, in the eyes of the law, be
considered important or material evidence but this court has not the letter in
question before it, and no attempt was ever made to present a copy thereof.
The affidavit of Attorney Gabino Fernando Viola or testimony he may give
pursuant thereto is not more competent than that of Attorney Jose Cortes
because, granting that when he was called by Victorio Payad to help the
deceased Leoncia Tolentino to make her will and he went to her house on
September 5, 1933, the deceased was almost unconscious, was unintelligible
and could not speak, it does not necessarily mean that on the day she made
her will, September 7, 1933, she had not recovered consciousness and all her
mental faculties to capacitate her to dispose of all her property. What Attorney
Gabino Fernando Viola may testify pursuant to his affidavit in question is not
and can not be newly discovered evidence of the character provided for by
law, not only because it does not exclude the possibility that testatrix had
somewhat improved in health, which possibility became a reality at the time
she made her will because she was then in the full enjoyment of her mental
faculties, according to the testimony of Pedro L. Cruz, Jose Ferrer Cruz,
Perfecto L. Ona, Victorio Payad and Marciano Almario, but also because
during the hearing of these proceedings in the Court of First Instance, Attorney
Page 9 of 62
Viola was present, and the oppositor then could have very well called him to
the witness stand, inasmuch as her attorney already knew what Attorney Viola
was to testify about, yet she did not call him. The last fact is shown by the
following excerpt from pages 148 to 150 of the transcript:
Mr. PANIS (attorney for the oppositor, addressing the court): Your
Honor, I should like to present as the last witness Attorney Fernando
Viola who was called by the petitioner Victoria Payad to prepare the
will of the deceased in his favor on September 5, 1933.
COURT: But, Mr. Panis, are you going to testify for Attorney Fernando
Viola? — Mr. PANIS: No, Your Honor.
COURT: Well, where is that attorney? Where is that witness whom you
wish to call to the witness stand? — Mr. PANIS: Your Honor, he is busy
in the branch, presided over by Judge Sison.
COURT: And when can he come? Mr. — PANIS. I am now going to find
out, Your Honor. If the other party, Your Honor, is willing to admit what
said witness is going to testify in the sense that said Attorney Fernando
Viola went to the house of the deceased on September 5, 1933, for the
purpose of talking to the deceased to draft the will upon petition of Mr.
Victorio Payad; if the other party admits that, then I am going waive the
presentation of the witness Mr. Fernando Viola.
Mr. ALMARIO (attorney for the petitioner): We cannot admit that.
COURT: The court had already assumed beforehand that the other
party would not admit that proposition.
Mr. PANIS: I request Your Honor to reserve us the right to call the
witness, Mr. Viola, without prejudice to the other party's calling the
witness it may wish to call.
COURT: The court reserves to the oppositor its right to call Attorney
Viola to the witness stand.
If, after all, the oppositor did not decide to call Attorney Viola to testify as a
witness in her favor, it might have been because she considered his testimony
unimportant and unnecessary, and at the present stage of the proceedings, it
is already too late to claim that what said attorney may now testify is a newly
discovered evidence.
For the foregoing considerations, those stated by this court in the original
decision, and the additional reason that, as held in the case of Chung Kiat vs.
Lim Kio (8 Phil., 297), the right to a new trial on the ground of newly discovered
evidence is limited to ordinary cases pending in this court on bills of
exceptions, the motion for reconsideration and a new trial filed by the oppositor
are hereby denied, ordering that the record be remanded immediately to the
lower court. So ordered.
G.R. No. L-4067 November 29, 1951
In the Matter of the will of ANTERO MERCADO, deceased. ROSARIO
GARCIA, petitioner,
vs.
JULIANA LACUESTA, ET AL., respondents.
Elviro L. Peralta and Hermenegildo A. Prieto for petitioner.
Faustino B. Tobia, Juan I. Ines and Federico Tacason for respondents.
PARAS, C.J.:
This is an appeal from a decision of the Court of Appeals disallowing the will of
Antero Mercado dated January 3, 1943. The will is written in the Ilocano dialect
and contains the following attestation clause:
We, the undersigned, by these presents to declare that the foregoing
testament of Antero Mercado was signed by himself and also by us
below his name and of this attestation clause and that of the left
margin of the three pages thereof. Page three the continuation of this
attestation clause; this will is written in Ilocano dialect which is spoken
and understood by the testator, and it bears the corresponding number
in letter which compose of three pages and all them were signed in the
presence of the testator and witnesses, and the witnesses in the
presence of the testator and all and each and every one of us
witnesses.
Page 10 of 62
 In testimony, whereof, we sign this statement, this the third day of
January, one thousand nine hundred forty three, (1943) A.D.
(Sgd.) NUMERIANO EVANGELISTA (Sgd.) "ROSENDA CORTES
(Sgd.) BIBIANA ILLEGIBLE
The will appears to have been signed by Atty. Florentino Javier who wrote the
name of Antero Mercado, followed below by "A reugo del testator" and the
name of Florentino Javier. Antero Mercado is alleged to have written a cross
immediately after his name. The Court of Appeals, reversing the judgement of
the Court of First Instance of Ilocos Norte, ruled that the attestation clause
failed (1) to certify that the will was signed on all the left margins of the three
pages and at the end of the will by Atty. Florentino Javier at the express
request of the testator in the presence of the testator and each and every one
of the witnesses; (2) to certify that after the signing of the name of the testator
by Atty. Javier at the former's request said testator has written a cross at the
end of his name and on the left margin of the three pages of which the will
consists and at the end thereof; (3) to certify that the three witnesses signed
the will in all the pages thereon in the presence of the testator and of each
other.
In our opinion, the attestation clause is fatally defective for failing to state that
Antero Mercado caused Atty. Florentino Javier to write the testator's name
under his express direction, as required by section 618 of the Code of Civil
Procedure. The herein petitioner (who is appealing by way of certiorari from
the decision of the Court of Appeals) argues, however, that there is no need for
such recital because the cross written by the testator after his name is a
sufficient signature and the signature of Atty. Florentino Javier is a surplusage.
Petitioner's theory is that the cross is as much a signature as a thumbmark, the
latter having been held sufficient by this Court in the cases of De
Gala vs. Gonzales and Ona, 53 Phil., 104; Dolar vs. Diancin, 55 Phil., 479;
Payad vs. Tolentino, 62 Phil., 848; Neyra vs. Neyra, 76 Phil., 296 and
Lopez vs. Liboro, 81 Phil., 429.
It is not here pretended that the cross appearing on the will is the usual
signature of Antero Mercado or even one of the ways by which he signed his
name. After mature reflection, we are not prepared to liken the mere sign of the
cross to a thumbmark, and the reason is obvious. The cross cannot and does
not have the trustworthiness of a thumbmark.
What has been said makes it unnecessary for us to determine there is a
sufficient recital in the attestation clause as to the signing of the will by the
testator in the presence of the witnesses, and by the latter in the presence of
the testator and of each other.
Wherefore, the appealed decision is hereby affirmed, with against the
petitioner. So ordered.
G.R. No. L-6285 February 15, 1912
PEDRO BARUT, petitioner-appellant,
vs.
FAUSTINO CABACUNGAN, ET AL., opponents-appellees.
A. M. Jimenez for appellant.
Ramon Querubin for appellees.
MORELAND, J.:
This case is closely connected with the case of Faustino Cabacungan vs.
Pedro Barut and another, No. 6284,1just decided by this court, wherein there
was an application for the probate of an alleged last will and testament of the
same person the probate of whose will is involved in this suit.
This appeal arises out of an application on the part of Pedro Barut to probate
the last will and testament of Maria Salomon, deceased. It is alleged in the
petition of the probate that Maria Salomon died on the 7th day of November,
1908, in the pueblo of Sinait, Ilocos Sur, leaving a last will and testament
bearing date March 2, 1907. Severo Agayan, Timotea Inoselda, Catalino
Ragasa, and A. M. Jimenez are alleged to have been witnesses to the
execution thereof. By the terms of said will Pedro Barut received the larger part
of decedent's property.
Page 11 of 62
The original will appears on page 3 of the record and is in the Ilocano dialect.
Its translation into Spanish appears at page 11. After disposing of her property
the testatrix revoked all former wills by her made. She also stated in said will
that being unable to read or write, the same had been read to her by Ciriaco
Concepcion and Timotea Inoselda and that she had instructed Severo Agayan
to sign her name to it as testatrix.
The probate of the will was contested and opposed by a number of the
relatives of the deceased on various grounds, among them that a later will had
been executed by the deceased. The will referred to as being a later will is the
one involved in case No. 6284 already referred to. Proceeding for the probate
of this later will were pending at the time. The evidence of the proponents and
of the opponents was taken by the court in both cases for the purpose of
considering them together.
In the case before us the learned probate court found that the will was not
entitled to probate upon the sole ground that the handwriting of the person who
it is alleged signed the name of the testatrix to the will for and on her behalf
looked more like the handwriting of one of the other witnesses to the will than
that of the person whose handwriting it was alleged to be. We do not believe
that the mere dissimilarity in writing thus mentioned by the court is sufficient to
overcome the uncontradicted testimony of all the witnesses to the will that the
signature of the testatrix was written by Severo Agayan at her request and in
her presence and in the presence of all the witnesses to the will. It is
immaterial who writes the name of the testatrix provided it is written at her
request and in her presence and in the presence of all the witnesses to the
execution of the will.
The court seems , by inference at least, to have had in mind that under the law
relating to the execution of a will it is necessary that the person who signs the
name of the testatrix must afterwards sign his own name; and that, in view of
the fact that, in the case at bar, the name signed below that of the testatrix as
the person who signed her name, being, from its appearance, not the same
handwriting as that constituting the name of the testatrix, the will is accordingly
invalid, such fact indicating that the person who signed the name of the
testatrix failed to sign his own. We do not believe that this contention can be
sustained. Section 618 of the Code of Civil Procedure reads as follows:
No will, except as provided in the preceding section, shall be valid to
pass any estate, real or personal, nor charge or effect the same,
unless it be in writing and signed by the testator, or by the testator's
name written by some other person in his presence, and by his
expenses direction, and attested and subscribed by three or more
credible witnesses in the presence of the testator and of each. . . .
This is the important part of the section under the terms of which the court
holds that the person who signs the name of the testator for him must also sign
his own name The remainder of the section reads:
The attestation shall state the fact that the testator signed the will, or
caused it to be signed by some other person, at his express direction,
in the presence of three witnesses, and that they attested and
subscribed it in his presence and in the presence of each other. But the
absence of such form of attestation shall not render the will invalid if it
is proven that the will was in fact signed and attested as in this section
provided.
From these provisions it is entirely clear that, with respect to the validity of the
will, it is unimportant whether the person who writes the name of the testatrix
signs his own or not. The important thing is that it clearly appears that the
name of the testatrix was signed at her express direction in the presence of
three witnesses and that they attested and subscribed it in her presence and in
the presence of each other. That is all the statute requires. It may be wise as a
practical matter that the one who signs the testator's name signs also his own;
but that it is not essential to the validity of the will. Whether one parson or
another signed the name of the testatrix in this case is absolutely unimportant
so far as the validity of her will is concerned. The plain wording of the statute
shows that the requirement laid down by the trial court, if it did lay down, is
absolutely unnecessary under the law; and the reasons underlying the
provisions of the statute relating to the execution of wills do not in any sense
require such a provision. From the standpoint of language it is an impossibility
to draw from the words of the law the inference that the persons who signs the
name of the testator must sign his own name also. The law requires only three
witnesses to a will, not four.
Nor is such requirement found in any other branch of the law. The name of a
person who is unable to write may be signed by another by express direction
to any instrument known to the law. There is no necessity whatever, so far as
the validity of the instrument is concerned, for the person who writes the name
of the principal in the document to sign his own name also. As a matter of
policy it may be wise that he do so inasmuch as it would give such intimation
as would enable a person proving the document to demonstrate more readily
the execution by the principal. But as a matter of essential validity of the
document, it is unnecessary. The main thing to be established in the execution
Page 12 of 62
of the will is the signature of the testator. If that signature is proved, whether it
be written by himself or by another at his request, it is none the less valid, and
the fact of such signature can be proved as perfectly and as completely when
the person signing for the principal omits to sign his own name as it can when
he actually signs. To hold a will invalid for the lack of the signature of the
person signing the name of the principal is, in the particular case, a complete
abrogation of the law of wills, as it rejects and destroys a will which the statute
expressly declares is valid.
There have been cited three cases which it is alleged are in opposition to the
doctrine which we have herein laid down. They are Ex parte Santiago (4 Phil.
Rep., 692), Ex parte Arcenas (4 Phil. Rep., 700), and Guison vs. Concepcion
(5 Phil. Rep., 551). Not one of these cases is in point. The headnote in the
case last above stated gives an indication of what all of cases are and the
question involved in each one of them. It says:
The testatrix was not able to sign it for her. Instead of writing her name
he wrote his own upon the will. Held, That the will was not duly
executed.
All of the above cases are precisely of this character. Every one of them was a
case in which the person who signed the will for the testator wrote his own
name to the will instead of writing that of the testator, so that the testator's
name nowhere appeared attached to the will as the one who executed it. The
case of Ex parte Arcenas contains the following paragraph:
Where a testator does not know, or is unable for any reason, to sign
the will himself, it shall be signed in the following manner: "John Doe,
by the testator, Richard Roe;" or in this form: "By the testator. John
Doe, Richard Roe." All this must be written by the witness signing at
the request of the testator.
The only question for decision in that case, as we have before stated, was
presented by the fact that the person who was authorized to sign the name of
the testator to the will actually failed to sign such name but instead signed his
own thereto. The decision in that case related only to that question.
Aside from the presentation of an alleged subsequent will the contestants in
this case have set forth no reason whatever why the will involved in the
present litigation should not be probated. The due and legal execution of the
will by the testatrix is clearly established by the proofs in this case. Upon the
facts, therefore, the will must be probated. As to the defense of a subsequent
will, that is resolved in case No. 6284 of which we have already spoken. We
there held that said later will not the will of the deceased.
The judgment of the probate court must be and is hereby reversed and that
court is directed to enter an order in the usual form probating the will involved
in this litigation and to proceed with such probate in accordance with law.
Arellano, C.J., Mapa and Carson, JJ., concur.
Separate Opinions
TORRES, J., concurring:
The undersigned agrees and admits that section 618 of the Code of Civil
Procedure does not expressly require that, when the testator or testatrix is
unable or does not know how to sign, the person who, in the presence and
under the express direction of either of them, writes in the name of the said
testator or testatrix must also sign his own name thereto, it being sufficient for
the validity of the will that the said person so requested to sign the testator or
testatrix write the name of either in his own handwriting.
Since this court began to decide cases with regard to the form, conditions and
validity of wills executed in accordance with the provisions of the Code of Civil
Procedure, never has the specific point just above mentioned been brought
into question. Now for the first time is affirmed in the majority opinion, written
by the learned and distinguished Hon. Justice Moreland, that, not being
required by the said code, the signature of the name of the person who, at the
request of the testator or testatrix, writes the name of either of the latter to the
will executed, is not necessary.
Various and considerable in number have been the decisions rendered by this
court in which, as will be seen further on, upon applying the said section 618 of
Code of Civil Procedure and requiring its observance in cases where the
testator or testatrix is unable or does not know how to sign his or her name,
expressly prescribed the practical method of complying with the provisions of
the law on the subject. Among these decisions several were written by various
justices of this court, some of whom are no longer on this bench, as they have
ceased to hold such position.
Page 13 of 62
Paragraph 2 of the syllabus of case No. 2002, Ex parte Delfin
Santiago,1 concerning the probate of a will, reads as follows:
Wills, authentication of . — Where a will is not signed by a testator but
by some other person in his presence and by his direction, such other
person should affix the name of the testator thereto, and it is not
sufficient that he sign his own name for and instead of the name of the
testator.
Paragraph 1 of the syllabus of case No. 1708, Ex parte Arcenas,2 in the matter
of the probate of a will, states:
1. Wills, requisites of; Civil Code, article repealed. — Article 695 of the
Civil Procedure; consequently where a testator is unable to sign his
name, the person signing at his request must write at the bottom of the
will the full name of the testator in the latter's presence, and by his
express direction, and then sign his own name in full.
In the syllabus of decision No. 2586, Tomas Guison vs. Maria Concepcion,3 the
following statements appear:
Wills; inability to sign; signature by another. — The testatrix was not
able to sign her name to the will, and she requested another person to
sign it for her. Held, That the will was not duly executed. (Following Ex
parte Arcenas et al., No. 1708, August 24, 1905; Ex parte Arcenas et
al., No. 1708, August 24, 1905; Ex parte Santiago, No. 2002, August
18, 1905.)
The following syllabus precedes decision No. 3907:4
Execution of wills. — Where it appears in a will that the testator has
stated that by reason of his inability to sign his name he requested one
of the three witnesses present to do so, and that as a matter of fact,
the said witness wrote the name and surname of the testator who,
stating that the instrument executed by him contained his last will, put
the sign of the cross between his said name and surname, all of which
details are set forth in a note which the witnesses forthwith subscribed
in the presence of the testator and of each other, said will may be
probated.
When the essential requisites of section 618 of the Code of Civil
Procedure for the execution and validity of a will have been complied
with, the fact that the witness who was requested to sign the name of
the testator, omitted to state the words 'by request of .......... the
testator,' when writing with his own hand the name and surname of the
said testator, and the fact that said witness subscribed his name
together with the other witnesses and not below the name of the
testator, does not constitute a defect nor invalidate the said will.
The following statement appears in the syllabus of case No. 4132, in the
matter of the will of Maria Siason:5
The recital of the name of the testator as written below the will at his
request serves as a signature by a third person.
Moreover among the grounds given as a basis for this same decision, the
following appears:
In sustaining this form of signature, this court does not intend to qualify
the decisions in Ex parte Santiago (4 Phil. Rep., 692), Ex
parte Arcenas, above quoted, or in Abaya vs. Zalamero. In the Arcenas
case the court pointed out the correct formula for a signature which
ought to be followed, but did not mean to exclude any other for
substantially equivalent.
In the syllabus of decision No. 4454,6 Ex parte Ondevilla et al., the following
appears:
The testatrix was unable to sign her will with her own hand and
requested another person to sign for her in her presence. This the
latter did, first writing the name of the testatrix and signing his own
name below: Held, That the signature of the testatrix so affixed is
sufficient and a will thus executed is admissible to probate. (Ex
parte Arcenas, 4 Phil. Rep., 700.)
The syllabus of decision No. 51497 sets forth that:
The legality of a will is not affected by the insertion, supposed to have been
made subsequently, of another name before that of the testator when such
name may be treated as nonexistent without affecting its validity.
Page 14 of 62
Among the conclusions contained in this last decision the following is found:
Although the said words "For Simplicia de los Santos" be considered
as inserted subsequently, which we neither affirm nor deny, because a
specific determination either way is unnecessary, in our opinion the
signature for the testatrix placed outside of the body of the will contains
the name of the testatrix as if she signed the will, and also the
signature of the witness who, at her request, wrote the name of the
testatrix and signed for her, affirming the truth of this fact, attested by
the other witnesses then present. And this fully complies with the
provisions of section 618 of the Act.
It is true that in none of the decisions above quoted was the rule established
that the person who, at the request of the testator or testatrix, signed the
latter's or the former's name and surname to the will must affix his own
signature; but it no less true that, in prescribing the method in which the
provisions of the said section 618 to be complied with, it was stated that, in
order that a will so executed might be admitted to probate, it was an
indispensable requisite that the person requested to sign in place of the
testator or testatrix, should write the latter's or the former's name and surname
at the foot of the will in the presence and under the direction of either, as the
case might be, and should afterwards sign the instrument with his own name
and surname.
The statement that the person who writes the name and surname of the
testator or testatrix at the foot of the will should likewise affix his own signature
thereto, name and surname, though it be considered to be neither a rule nor a
requisite necessary to follow for the admission of the will to probate, yet it is
unquestionable that, in inserting this last above-mentioned detail in the
aforesaid decisions, it was deemed to be a complement and integral part of the
required conditions for the fulfillment of the provisions of the law.
It is undisputable that the latter does not require the said subscription and
signature of the person requested to affix to the will the name of the testator or
testatrix who is not able to sign; but by stating in the decisions hereinabove
quoted that the name and surname of the said person should be affixed by
him, no act prohibited by law was recommended or suggested, nor may such a
detail be understood to be contrary or opposed to the plain provisions thereof.
In the preceding decision itself, it is recognized to be convenient and even
prudent to require that the person requested to write the name of the testator
or testatrix in the will also sign the instrument with his own name and surname.
This statement induces us to believe that, in behalf of the inhabitants of this
country and for sake of an upright administration of justice, it should be
maintained that such a signature must appear in the will, since no harm could
accrue to anyone thereby and, on the contrary, it would serve as a guarantee
of the certainty of the act performed and also might eliminate some possible
cause of controversy between the interested parties.
The undersigned feels it his duty to admit that, though convinced of the
complete repeal of article 695 of the Civil Code and, while he conceded that, in
the examination and qualification of a will for the purpose of its probate, one
has but to abide by the provisions of said section 618 of the Code of Civil
Procedure, the sole law applicable in the matter, yet, perhaps imbued with the
strongly impelled by a traditional conception of the laws which he has known
since youth, relative to the form of execution of testaments, he believed it to be
a vary natural and common sense requisite that the signature, with his own
name and surname, of the person requested to write in the will the name and
surname of the testator or testatrix should form a part of the provisions of the
aforementioned section 618.
He undoubtedly thought, perhaps mistakenly, that such a requisite of the
signature of the person before referred to — a requisite deemed to be
convenient and prudent in the majority opinion — formed a part of the
provisions of the law, since the latter contains nothing that prohibits it. The
aforementioned different decisions were drawn up in the form in which they
appear, and signed without dissent by all the justices of the court on various
dates. None of them hesitated to sign the decisions, notwithstanding that it
was expressly held therein that the person above mentioned should, besides
writing in the will the name and surname of the testator or testatrix, also sign
the said instrument with his own name and surname.
Without being understood to criticize the provision contained in the said
section 618 of the Code of Civil Procedure it will not be superfluous to mention
that the system adopted in this section is the same as was in vogue under the
former laws that governed in these Islands, with respect to witnesses who
were not able or did not know how to sign their testimony given in criminal or
civil cases, in which event any person at all might write the name and surname
of the witness who was unable or did not know how to sign, at the foot of his
deposition, where a cross was then drawn, and, this done, it was considered
that the instrument had been signed by the witness, though it is true that all
these formalities were performed before the judge and the clerk or secretary of
Page 15 of 62
the court, which thereupon certified that such procedure was had in
accordance with the law.
The difference is that in the will, pursuant to section 618 of the Code of Civil
Procedure, the person who writes the name and surname of the testator or
testatrix does so by the order and express direction of the one or of the other,
and this fact must be recorded in the will; but in the matter of the signature of a
deposition, the witness, who could not or did not know how to sign, did not
need to designate anyone to write the deponent's name and surname, and in
practice the witness merely made a cross beside his name and surname,
written by whomever it be.
With regard to the execution of wills in accordance with the provisions of
previous statutes, among them those of the Civil Code, the person or witness
requested by the testator or testatrix who was not able or did not know how to
sign, authenticated the will by signing it with his own name and surname,
preceded by the words "at the request of the testator or testatrix." Paragraph 2
of article 695 of the Civil Code contains the following provisions bearing on the
subject:
Should the testator declare that he does not know how, or is not able to
sign, one of the attesting witnesses or another person shall do so for
him at his request, the notary certifying thereto. This shall be done if
any one of the witnesses can not sign.
So that, prior to the enforcement in this country in 1901 of the Code of Civil
procedure prescribed by the old laws with respect to the signing of a will by a
testator or testatrix who did not know how or who could not sign, consisted in
that the person appointed and requested by the testator or testatrix to sign in
his or her stead, such fact being recorded in the will, merely affixed at the
bottom of the will and after the words "at the request of the testator," his own
name, surname and paragraph.
It is not at all strange that the attorneys of this country, imbued with and
inspired by these legal provisions, which it may said, are traditional to them in
the ideas they have formed of the existing laws in the matter of procedure in
compliance therewith as regards the execution and signing of a will, should
have believed that, after the name and surname of the testator or testatrix had
been written at the foot of the will, the person who signed the instrument in the
manner mentioned should likewise sign the same with his own name and
surname.
If in various decisions it has been indicated that the person who, under the
express direction of the testator or testatrix, wrote the latter's or the former's
name and surname, should also sign the will with his own name and surname,
and since this suggestion is not opposed or contrary to the law, the
undersigned is of opinion that it ought not to be modified or amended, but that,
on the contrary, it should be maintained as a requisite established by the
jurisprudence of this court, inasmuch as such a requisite is not contrary to law,
to public order, or to good custom, is in consonance with a tradition of this
country, does not prejudice the testator nor those interested in an inheritance,
and, on the contrary, constitutes another guarantee of the truth and
authenticity of the letters with which the name and surname of the testator of
testatrix are written, in accordance with his or her desire as expressed in the
will.
Even though the requisites referred to were not recognized in jurisprudence
and were unsupported by any legal doctrine whatever, yet, since it is in
harmony with the juridical usages and customs observed in this country, it
ought, in the humble opinion of the writer, to be maintained for the benefit of
the inhabitants of the Islands and for the sake of a good administration of
justice, because it is not a question of a dangerous innovation or of one
prejudicial to the public good, but a matter of the observance of a convenient, if
not a necessary detail, introduced by the jurisprudence of the courts and which
in the present case has filed a vacancy left by the positive written law.
The foregoing considerations, which perhaps have not the support of better
premises, but in the opinion of the undersigned, are conducive to the
realization of the purposes of justice, have impelled him to believe that the
proposition should be enforced that the witness requested or invited by the
testator or testatrix to write his or her name to the will, should also subscribed
the instrument by signing thereto his own name and surname; and therefore,
with the proper finding in this sense, and reversal of the judgment appealed
from, that the court below should be ordered to proceed with the probate of the
will of the decedent, Maria Salomon, in accordance with the law.
G.R. No. L-5971 February 27, 1911
BEATRIZ NERA, ET AL., plaintiffs-appellees,
vs.
NARCISA RIMANDO, defendant-appellant.
Page 16 of 62
Valerio Fontanilla and Andres Asprer for appellant.
Anacleto Diaz for appellees.
CARSON, J.:
The only question raised by the evidence in this case as to the due execution
of the instrument propounded as a will in the court below, is whether one of the
subscribing witnesses was present in the small room where it was executed at
the time when the testator and the other subscribing witnesses attached their
signatures; or whether at that time he was outside, some eight or ten feet
away, in a large room connecting with the smaller room by a doorway, across
which was hung a curtain which made it impossible for one in the outside room
to see the testator and the other subscribing witnesses in the act of attaching
their signatures to the instrument.
A majority of the members of the court is of opinion that this subscribing
witness was in the small room with the testator and the other subscribing
witnesses at the time when they attached their signatures to the instrument,
and this finding, of course, disposes of the appeal and necessitates the
affirmance of the decree admitting the document to probate as the last will and
testament of the deceased.
The trial judge does not appear to have considered the determination of this
question of fact of vital importance in the determination of this case, as he was
of opinion that under the doctrine laid down in the case of Jaboneta vs.
Gustilo (5 Phil. Rep., 541) the alleged fact that one of the subscribing
witnesses was in the outer room when the testator and the other describing
witnesses signed the instrument in the inner room, had it been proven, would
not be sufficient in itself to invalidate the execution of the will. But we are
unanimously of opinion that had this subscribing witness been proven to have
been in the outer room at the time when the testator and the other subscribing
witnesses attached their signatures to the instrument in the inner room, it
would have been invalid as a will, the attaching of those signatures under
circumstances not being done "in the presence" of the witness in the outer
room. This because the line of vision from this witness to the testator and the
other subscribing witnesses would necessarily have been impeded by the
curtain separating the inner from the outer one "at the moment of inscription of
each signature."
In the case just cited, on which the trial court relied, we held that:
The true test of presence of the testator and the witnesses in the
execution of a will is not whether they actually saw each other sign, but
whether they might have been seen each other sign, had they chosen
to do so, considering their mental and physical condition and position
with relation to each other at the moment of inscription of each
signature.
But it is especially to be noted that the position of the parties with relation to
each other at the moment of the subscription of each signature, must be such
that they may see each other sign if they choose to do so. This, of course,
does not mean that the testator and the subscribing witnesses may be held to
have executed the instrument in the presence of each other if it appears that
they would not have been able to see each other sign at that moment, without
changing their relative positions or existing conditions. The evidence in the
case relied upon by the trial judge discloses that "at the moment when the
witness Javellana signed the document he was actually and physically present
and in such position with relation to Jaboneta that he could see everything that
took place by merely casting his eyes in the proper direction and without any
physical obstruction to prevent his doing so." And the decision merely laid
down the doctrine that the question whether the testator and the subscribing
witnesses to an alleged will sign the instrument in the presence of each other
does not depend upon proof of the fact that their eyes were actually cast upon
the paper at the moment of its subscription by each of them, but that at that
moment existing conditions and their position with relation to each other were
such that by merely casting the eyes in the proper direction they could have
seen each other sign. To extend the doctrine further would open the door to
the possibility of all manner of fraud, substitution, and the like, and would
defeat the purpose for which this particular condition is prescribed in the code
as one of the requisites in the execution of a will.
The decree entered by the court below admitting the instrument propounded
therein to probate as the last will and testament of Pedro Rimando, deceased,
is affirmed with costs of this instance against the appellant.
G.R. No. L-7179 June 30, 1955
Testate Estate of the Late Apolinaria Ledesma. FELICIDAD
JAVELLANA, petitioner-appellee,
Page 17 of 62
vs.
DOÑA MATEA LEDESMA, oppositor-appellant.
Fulgencio Vega and Felix D. Bacabac for appellant.
Benjamin H. Tirot for appellee.
REYES, J.B.L., J.:
By order of July 23, 1953, the Court of First Instance of Iloilo admitted to
probate the documents in the Visayan dialect, marked Exhibits D and E, as the
testament and codicil duly executed by the deceased Da. Apolinaria Ledesma
Vda. de Javellana, on March 30, 1950, and May 29, 1952, respectively, with
Ramon Tabiana, Gloria Montinola de Tabiana and Vicente Yap as witnesses.
The contestant, Da. Matea Ledesma, sister and nearest surviving relative of
said deceased, appealed from the decision, insisting that the said exhibits
were not executed in conformity with law. The appeal was made directly to this
Court because the value of the properties involved exceeded two hundred
thousand pesos.
Originally the opposition to the probate also charged that the testatrix lacked
testamentary capacity and that the dispositions were procured through undue
influence. These grounds were abandoned at the hearing in the court below,
where the issue was concentrated into three specific questions: (1) whether
the testament of 1950 was executed by the testatrix in the presence of the
instrumental witnesses; (2) whether the acknowledgment clause was signed
and the notarial seal affixed by the notary without the presence of the testatrix
and the witnesses; and (3) if so, whether the codicil was thereby rendered
invalid and ineffective. These questions are the same ones presented to us for
resolution.
The contestant argues that the Court below erred in refusing credence to her
witnesses Maria Paderogao and Vidal Allado, cook and driver, respectively, of
the deceased Apolinaria Ledesma. Both testified that on March 30, 1950, they
saw and heard Vicente Yap (one of the witnesses to the will) inform the
deceased that he had brought the "testamento" and urge her to go to attorney
Tabiana's office to sign it; that Da. Apolinaria manifested that she could not go,
because she was not feeling well; and that upon Yap's insistence that the will
had to be signed in the attorney's office and not elsewhere, the deceased took
the paper and signed it in the presence of Yap alone, and returned it with the
statement that no one would question it because the property involved was
exclusively hers.
Our examination of the testimony on record discloses no grounds for reversing
the trial Court's rejection of the improbable story of the witnesses. It is squarely
contradicted by the concordant testimony of the instrumental witnesses,
Vicente Yap, Atty. Ramon Tabiana, and his wife Gloria Montinola, who asserted
under oath that the testament was executed by testatrix and witnesses in the
presence of each other, at the house of the decedent on General Hughes St.,
Iloilo City, on March 30, 1950. And it is highly unlikely, and contrary to usage,
that either Tabiana or Yap should have insisted that Da. Apolinaria, an infirm
lady then over 80 years old, should leave her own house in order to execute
her will, when all three witnesses could have easily repaired thither for the
purpose. Moreover, the cross-examination has revealed fatal flaws in the
testimony of Contestant's witnesses. Both claim to have heard the word
"testamento" for the first time when Yap used it; and they claimed ability to
recall that word four years later, despite the fact that the term meant nothing to
either. It is well known that what is to be remembered must first be rationally
conceived and assimilated (II Moore on Facts, p. 884). Likewise, Maria
Paderogao was positive that Yap brought the will, and that the deceased alone
signed it, precisely on March 30, 1950; but she could remember no other date,
nor give satisfactory explanation why that particular day stuck in her mind.
Worse still, Allado claimed to have heard what allegedly transpired between
Yap and Da. Apolinaria from the kitchen of the house, that was later proved to
have been separated from the deceased's quarters, and standing at a much
lower level, so that conversations in the main building could not be distinctly
heard from the kitchen. Later, on redirect examination, Allado sought to cure
his testimony by claiming that he was upstairs in a room where the servants
used to eat when he heard Yap converse with his mistress; but this correction
is unavailing, since it was plainly induced by two highly leading questions from
contestant's counsel that had been previously ruled out by the trial Court.
Besides, the contradiction is hardly consonant with this witness' 18 years of
service to the deceased.
Upon the other hand, the discrepancies in the testimony of the instrumental
witnesses urged upon us by the contestant-appellant, concerning the presence
or absence of Aurelio Montinola at the signing of the testament or of the
codicil, and the identity of the person who inserted the date therein, are not
material and are largely imaginary, since the witness Mrs. Tabiana confessed
inability to remember all the details of the transaction. Neither are we
impressed by the argument that the use of some Spanish terms in the codicil
and testament (like legado, partes iguales, plena propiedad) is proof that its
contents were not understood by the testatrix, it appearing in evidence that
those terms are of common use even in the vernacular, and that the deceased
was a woman of wide business interests.
Page 18 of 62
The most important variation noted by the contestants concerns that signing of
the certificate of acknowledgment (in Spanish) appended to the Codicil in
Visayan, Exhibit E. Unlike the testament, this codicil was executed after the
enactment of the new Civil Code, and, therefore, had to be acknowledged
before a notary public (Art. 806). Now, the instrumental witnesses (who
happen to be the same ones who attested the will of 1950) asserted that after
the codicil had been signed by the testatrix and the witnesses at the San Pablo
Hospital, the same was signed and sealed by notary public Gimotea on the
same occasion. On the other hand, Gimotea affirmed that he did not do so, but
brought the codicil to his office, and signed and sealed it there. The variance
does not necessarily imply conscious perversion of truth on the part of the
witnesses, but appears rather due to a well-established phenomenon, the
tendency of the mind, in recalling past events, to substitute the usual and
habitual for what differs slightly from it (II Moore on Facts, p. 878; The Ellen
McGovern, 27 Fed. 868, 870).
At any rate, as observed by the Court below, whether or not the notary signed
the certification of acknowledgment in the presence of the testatrix and the
witnesses, does not affect the validity of the codicil. Unlike the Code of 1889
(Art. 699), the new Civil Code does not require that the signing of the testator,
witnesses and notary should be accomplished in one single act. A comparison
of Articles 805 and 806 of the new Civil Code reveals that while testator and
witnesses sign in the presence of each other, all that is thereafter required is
that "every will must be acknowledged before a notary public by the testator
and the witnesses" (Art. 806); i.e., that the latter should avow to the certifying
officer the authenticity of their signatures and the voluntariness of their actions
in executing the testamentary disposition. This was done in the case before us.
The subsequent signing and sealing by the notary of his certification that the
testament was duly acknowledged by the participants therein is no part of the
acknowledgment itself nor of the testamentary act. Hence their separate
execution out of the presence of the testatrix and her witnesses can not be
said to violate the rule that testaments should be completed without
interruption (Andalis vs. Pulgueras, 59 Phil. 643), or, as the Roman maxim
puts it, "uno codem die ac tempore in eadem loco", and no reversible error
was committed by the Court in so holding. It is noteworthy that Article 806 of
the new Civil Code does not contain words requiring that the testator and the
witnesses should acknowledge the testament on the same day or occasion
that it was executed.
The decision admitting the will to probate is affirmed, with costs against
appellant.
G.R. No. L-26808 May 23, 1969
REV. FATHER LUCIO V. GARCIA, petitioner,
vs.
HON. CONRADO M. VASQUEZ, respondent.
R E S O L U T I O N*
FERNANDO, J.:
This is a motion for the reconsideration of our decision of March 28, 1969, filed
by petitioner. In the opinion rendered in that case, we stated: "Petitioner should
have been aware that there is no escape from the payment of the
corresponding docket fee, otherwise, the Court is not called upon to act on a
complaint or petition. Nor does it suffice to vary the rule simply because there
is only one decedent whose estate is thus to be disposed of by will that must
first be probated. It is not farfetched or implausible that a decedent could have
left various wills. Under such circumstances, there is nothing inherently
objectionable in thus exacting the payment of a docket fee, every time a will is
sought to be probated. Petitioner here could have sought the probate of the
will presented by him in the same proceeding. He did not; he filed instead a
separate action."
While not disputing the correctness of the above principle announced,
petitioner, in this motion for reconsideration, would assert that he did not file a
separate action "but instead elected to file the probate of the decedent's 1956
Will in the same Sp. Proc. 62618, then pending before the respondent Court."
Petitioner's statement of fact is correct. Under the circumstances then, while
the doctrine to the effect that a court of justice is not called upon to act on a
complaint will petition in the absence of a payment of the corresponding docket
fee every time a will is sought to be probated must be considered as
subsisting, it finds no application to the present case, as petitioner did not file a
separate action but instead sought to have the other will probated in the same
special proceedings then pending before respondent Court. He is therefore
entitled to have our decision reconsidered.
WHEREFORE, the decision of March 28, 1969 is set aside and the petition for
certiorari granted, with petitioner being thus entitled to the refund of the second
docket fee of P940.00 paid under Receipt No. J-1459986 issued on December
Page 19 of 62
2, 1965, and the order of respondent Court of November 6, 1965 ordering such
payment of the second docket fee annulled. Without pronouncement as to
costs.lawphi1.ñet
G.R. No. 74695 September 14, 1993
In the Matter of the Probate of the Last Will and Testament of the
Deceased Brigido Alvarado, CESAR ALVARADO, petitioner,
vs.
HON. RAMON G. GAVIOLA, JR., Presiding Justice, HON. MA. ROSARIO
QUETULIO LOSA and HON. LEONOR INES LUCIANO, Associate Justices,
Intermediate Appellate Court, First Division (Civil Cases), and BAYANI
MA. RINO, respondents.
Vicente R. Redor for petitioner.
Bayani Ma. Rino for and in his own behalf.
BELLOSILLO, J.:
Before us is an appeal from the Decision dated 11 April 1986 1 of the First Civil
Cases Division of the then Intermediate Appellate Court, now Court of Appeals,
which affirmed the Order dated 27 June 1983 2 of the Regional Trial Court of Sta.
Cruz, Laguna, admitting to probate the last will and testament 3 with codicil 4 of the
late Brigido Alvarado.
On 5 November 1977, the 79-year old Brigido Alvarado executed a notarial will
entitled "Huling Habilin" wherein he disinherited an illegitimate son (petitioner)
and expressly revoked a previously executed holographic will at the time
awaiting probate before Branch 4 of the Regional Trial Court of sta. Cruz,
Laguna.
As testified to by the three instrumental witnesses, the notary public and by
private respondent who were present at the execution, the testator did not read
the final draft of the will himself. Instead, private respondent, as the lawyer who
drafted the eight-paged document, read the same aloud in the presence of the
testator, the three instrumental witnesses and the notary public. The latter four
followed the reading with their own respective copies previously furnished
them.
Meanwhile, Brigido's holographic will was subsequently admitted to probate on
9 December 1977. On the 29th day of the same month, a codicil entitled
"Kasulatan ng Pagbabago sa Ilang Pagpapasiya na Nasasaad sa Huling
Habilin na may Petsa Nobiembre 5, 1977 ni Brigido Alvarado" was executed
changing some dispositions in the notarial will to generate cash for the
testator's eye operation. Brigido was then suffering from glaucoma. But the
disinheritance and revocatory clauses were unchanged. As in the case of the
notarial will, the testator did not personally read the final draft of the codicil.
Instead, it was private respondent who read it aloud in his presence and in the
presence of the three instrumental witnesses (same as those of the notarial
will) and the notary public who followed the reading using their own copies.
A petition for the probate of the notarial will and codicil was filed upon the
testator's death on 3 January 1979 by private respondent as executor with the
Court of First Instance, now Regional Trial Court, of Siniloan,
Laguna. 5Petitioner, in turn, filed an Opposition on the following grounds: that the
will sought to be probated was not executed and attested as required by law; that
the testator was insane or otherwise mentally incapacitated to make a will at the
time of its execution due to senility and old age; that the will was executed under
duress, or influence of fear and threats; that it was procured by undue and
improper pressure and influence on the part of the beneficiary who stands to get
the lion's share of the testator's estate; and lastly, that the signature of the testator
was procured by fraud or trick.
When the oppositor (petitioner) failed to substantiate the grounds relied upon
in the Opposition, a Probate Order was issued on 27 June 1983 from which an
appeal was made to respondent court. The main thrust of the appeal was that
the deceased was blind within the meaning of the law at the time his "Huling
Habilin" and the codicil attached thereto was executed; that since the reading
required by Art. 808 of the Civil Code was admittedly not complied with,
probate of the deceased's last will and codicil should have been denied.
On 11 April 1986, the Court of Appeals rendered the decision under review
with the following findings: that Brigido Alvarado was not blind at the time his
last will and codicil were executed; that assuming his blindness, the reading
requirement of Art. 808 was substantially complied with when both documents
were read aloud to the testator with each of the three instrumental witnesses
and the notary public following the reading with their respective copies of the
Page 20 of 62
instruments. The appellate court then concluded that although Art. 808 was not
followed to the letter, there was substantial compliance since its purpose of
making known to the testator the contents of the drafted will was served.
The issues now before us can be stated thus: Was Brigido Alvarado blind for
purpose of Art, 808 at the time his "Huling Habilin" and its codicil were
executed? If so, was the double-reading requirement of said article complied
with?
Regarding the first issue, there is no dispute on the following facts: Brigido
Alvarado was not totally blind at the time the will and codicil were executed.
However, his vision on both eyes was only of "counting fingers at three (3)
feet" by reason of the glaucoma which he had been suffering from for several
years and even prior to his first consultation with an eye specialist on
14 December 1977.
The point of dispute is whether the foregoing circumstances would qualify
Brigido as a "blind" testator under Art. 808 which reads:
Art. 808. If the testator is blind, the will shall be read to him
twice; once, by one of the subscribing witnesses, and again, by
the notary public before whom the will is acknowledged.
Petitioner contends that although his father was not totally blind when the will
and codicil were executed, he can be so considered within the scope of the
term as it is used in Art. 808. To support his stand, petitioner presented before
the trial court a medical certificate issued by Dr. Salvador R. Salceda, Director
of the Institute of Opthalmology (Philippine Eye Research Institute), 6 the
contents of which were interpreted in layman's terms by Dr. Ruperto Roasa, whose
expertise was admitted by private respondent. 7 Dr. Roasa explained that although
the testator could visualize fingers at three (3) feet, he could no longer read either
printed or handwritten matters as of 14 December 1977, the day of his first
consultation. 8
On the other hand, the Court of Appeals, contrary to the medical testimony,
held that the testator could still read on the day the will and the codicil were
executed but chose not to do so because of "poor eyesight." 9 Since the testator
was still capable of reading at that time, the court a quo concluded that Art. 808
need not be complied with.
We agree with petitioner in this respect.
Regardless of respondent's staunch contention that the testator was still
capable of reading at the time his will and codicil were prepared, the fact
remains and this was testified to by his witnesses, that Brigido did not do so
because of his "poor," 10 "defective," 11 or "blurred" 12 vision making it necessary for
private respondent to do the actual reading for him.
The following pronouncement in Garcia vs. Vasquez 13 provides an insight into
the scope of the term "blindness" as used in Art. 808, to wit:
The rationale behind the requirement of reading the will to the
testator if he is blind or incapable of reading the will himself (as
when he is illiterate), is to make the provisions thereof known to
him, so that he may be able to object if they are not in
accordance with his wishes . . .
Clear from the foregoing is that Art. 808 applies not only to blind testators but
also to those who, for one reason or another, are "incapable of reading the(ir)
will(s)." Since Brigido Alvarado was incapable of reading the final drafts of his
will and codicil on the separate occasions of their execution due to his "poor,"
"defective," or "blurred" vision, there can be no other course for us but to
conclude that Brigido Alvarado comes within the scope of the term "blind" as it
is used in Art. 808. Unless the contents were read to him, he had no way of
ascertaining whether or not the lawyer who drafted the will and codicil did so
confortably with his instructions. Hence, to consider his will as validly executed
and entitled to probate, it is essential that we ascertain whether Art. 808 had
been complied with.
Article 808 requires that in case of testators like Brigido Alvarado, the will shall
be read twice; once, by one of the instrumental witnesses and, again, by the
notary public before whom the will was acknowledged. The purpose is to make
known to the incapacitated testator the contents of the document before
signing and to give him an opportunity to object if anything is contrary to his
instructions.
That Art. 808 was not followed strictly is beyond cavil. Instead of the notary
public and an instrumental witness, it was the lawyer (private respondent) who
drafted the eight-paged will and the five-paged codicil who read the same
aloud to the testator, and read them only once, not twice as Art. 808 requires.
Private respondent however insists that there was substantial compliance and
that the single reading suffices for purposes of the law. On the other hand,
Page 21 of 62
petitioner maintains that the only valid compliance or compliance to the letter
and since it is admitted that neither the notary public nor an instrumental
witness read the contents of the will and codicil to Brigido, probate of the
latter's will and codicil should have been disallowed.
We sustain private respondent's stand and necessarily, the petition must be
denied.
This Court has held in a number of occasions that substantial compliance is
acceptable where the purpose of the law has been satisfied, the reason being
that the solemnities surrounding the execution of wills are intended to protect
the testator from all kinds of fraud and trickery but are never intended to be so
rigid and inflexible as to destroy the testamentary privilege. 14
In the case at bar, private respondent read the testator's will and codicil aloud
in the presence of the testator, his three instrumental witnesses, and the notary
public. Prior and subsequent thereto, the testator affirmed, upon being asked,
that the contents read corresponded with his instructions. Only then did the
signing and acknowledgement take place. There is no evidence, and petitioner
does not so allege, that the contents of the will and codicil were not sufficiently
made known and communicated to the testator. On the contrary, with respect
to the "Huling Habilin," the day of the execution was not the first time that
Brigido had affirmed the truth and authenticity of the contents of the draft. The
uncontradicted testimony of Atty. Rino is that Brigido Alvarado already
acknowledged that the will was drafted in accordance with his expressed
wishes even prior to 5 November 1977 when Atty. Rino went to the testator's
residence precisely for the purpose of securing his conformity to the draft. 15
Moreover, it was not only Atty. Rino who read the documents on
5 November and 29 December 1977. The notary public and the three
instrumental witnesses likewise read the will and codicil, albeit silently.
Afterwards, Atty. Nonia de la Pena (the notary public) and Dr. Crescente O.
Evidente (one of the three instrumental witnesses and the testator's physician)
asked the testator whether the contents of the document were of his own free
will. Brigido answered in the affirmative. 16 With four persons following the
reading word for word with their own copies, it can be safely concluded that the
testator was reasonably assured that what was read to him (those which he
affirmed were in accordance with his instructions), were the terms actually
appearing on the typewritten documents. This is especially true when we consider
the fact that the three instrumental witnesses were persons known to the testator,
one being his physician (Dr. Evidente) and another (Potenciano C. Ranieses)
being known to him since childhood.
The spirit behind the law was served though the letter was not. Although there
should be strict compliance with the substantial requirements of the law in
order to insure the authenticity of the will, the formal imperfections should be
brushed aside when they do not affect its purpose and which, when taken into
account, may only defeat the testator's will. 17
As a final word to convince petitioner of the propriety of the trial court's Probate
Order and its affirmance by the Court of Appeals, we quote the following
pronouncement in Abangan v. Abangan, 18 to wit:
The object of the solemnities surrounding the execution of wills
is to close the door against bad faith and fraud, to avoid the
substitution of wills and testaments and to guaranty their truth
and authenticity. Therefore the laws on the subject should be
interpreted in such a way as to attain these primordial ends.
But, on the other hand, also one must not lose sight of the fact
that it is not the object of the law to restrain and curtail the
exercise of the right to make a will. So when an interpretation
already given assures such ends, any other interpretation
whatsoever, that adds nothing but demands more requisites
entirely unnecessary, useless and frustrative of the testator's
will, must be disregarded (emphasis supplied).
Brigido Alvarado had expressed his last wishes in clear and unmistakable
terms in his "Huling Habilin" and the codicil attached thereto. We are unwilling
to cast these aside fro the mere reason that a legal requirement intended for
his protection was not followed strictly when such compliance had been
rendered unnecessary by the fact that the purpose of the law, i.e., to make
known to the incapacitated testator the contents of the draft of his will, had
already been accomplished. To reiterate, substantial compliance suffices
where the purpose has been served.
WHEREFORE, the petition is DENIED and the assailed Decision of
respondent Court of Appeals dated 11 April 1986 is AFFIRMED. Considering
the length of time that this case has remained pending, this decision is
immediately executory. Costs against petitioner.
SO ORDERED.
Page 22 of 62
G.R. No. L-18979 June 30, 1964
IN THE MATTER OF THE TESTATE ESTATE OF THE LATE JOSEFA
VILLACORTE.
CELSO ICASIANO, petitioner-appellee,
vs.
NATIVIDAD ICASIANO and ENRIQUE ICASIANO, oppositors-appellants.
Jose W. Diokno for petitioner-appellee.
Rosendo J. Tansinin for oppositor-appellant Natividad Icasiano.
Jaime R. Nuevas for oppositor-appellant Enrique Icasiano.
REYES, J.B.L., J.:
Appeal from an order of the Court of First Instance of Manila admitting to
probate the document and its duplicate, marked as Exhibits "A" and "A-1", as
the true last will and testament of Josefa Villacorte, deceased, and appointing
as executor Celso Icasiano, the person named therein as such.
This special proceeding was begun on October 2, 1958 by a petition for the
allowance and admission to probate of the original, Exhibit "A" as the alleged
will of Josefa Villacorte, deceased, and for the appointment of petitioner Celso
Icasiano as executor thereof.
The court set the proving of the alleged will for November 8, 1958, and caused
notice thereof to be published for three (3) successive weeks, previous to the
time appointed, in the newspaper "Manila chronicle", and also caused personal
service of copies thereof upon the known heirs.
On October 31, 1958, Natividad Icasiano, a daughter of the testatrix, filed her
opposition; and on November 10, 1958, she petitioned to have herself
appointed as a special administrator, to which proponent objected. Hence, on
November 18, 1958, the court issued an order appointing the Philippine Trust
Company as special administrator. 1äwphï1.ñët
On February 18, 1959, Enrique Icasiano, a son of the testatrix, also filed a
manifestation adopting as his own Natividad's opposition to the probate of the
alleged will.
On March 19, 1959, the petitioner proponent commenced the introduction of
his evidence; but on June 1, 1959, he filed a motion for the admission of an
amended and supplemental petition, alleging that the decedent left a will
executed in duplicate with all the legal requirements, and that he was, on that
date, submitting the signed duplicate (Exhibit "A-1"), which he allegedly found
only on or about May 26, 1959. On June 17, 1959, oppositors Natividad
Icasiano de Gomez and Enrique Icasiano filed their joint opposition to the
admission of the amended and supplemental petition, but by order of July 20,
1959, the court admitted said petition, and on July 30, 1959, oppositor
Natividad Icasiano filed her amended opposition. Thereafter, the parties
presented their respective evidence, and after several hearings the court
issued the order admitting the will and its duplicate to probate. From this order,
the oppositors appealed directly to this Court, the amount involved being over
P200,000.00, on the ground that the same is contrary to law and the evidence.
The evidence presented for the petitioner is to the effect that Josefa Villacorte
died in the City of Manila on September 12, 1958; that on June 2, 1956, the
late Josefa Villacorte executed a last will and testament in duplicate at the
house of her daughter Mrs. Felisa Icasiano at Pedro Guevara Street, Manila,
published before and attested by three instrumental witnesses, namely:
attorneys Justo P. Torres, Jr. and Jose V. Natividad, and Mr. Vinicio B. Diy; that
the will was acknowledged by the testatrix and by the said three instrumental
witnesses on the same date before attorney Jose Oyengco Ong, Notary Public
in and for the City of Manila; and that the will was actually prepared by attorney
Fermin Samson, who was also present during the execution and signing of the
decedent's last will and testament, together with former Governor Emilio Rustia
of Bulacan, Judge Ramon Icasiano and a little girl. Of the said three
instrumental witnesses to the execution of the decedent's last will and
testament, attorneys Torres and Natividad were in the Philippines at the time of
the hearing, and both testified as to the due execution and authenticity of the
said will. So did the Notary Public before whom the will was acknowledged by
the testatrix and attesting witnesses, and also attorneys Fermin Samson, who
actually prepared the document. The latter also testified upon cross
examination that he prepared one original and two copies of Josefa Villacorte
last will and testament at his house in Baliuag, Bulacan, but he brought only
one original and one signed copy to Manila, retaining one unsigned copy in
Bulacan.
The records show that the original of the will, which was surrendered
simultaneously with the filing of the petition and marked as Exhibit "A" consists
of five pages, and while signed at the end and in every page, it does not
contain the signature of one of the attesting witnesses, Atty. Jose V. Natividad,
on page three (3) thereof; but the duplicate copy attached to the amended and
Page 23 of 62
supplemental petition and marked as Exhibit "A-1" is signed by the testatrix
and her three attesting witnesses in each and every page.
The testimony presented by the proponents of the will tends to show that the
original of the will and its duplicate were subscribed at the end and on the left
margin of each and every page thereof by the testatrix herself and attested
and subscribed by the three mentioned witnesses in the testatrix's presence
and in that of one another as witnesses (except for the missing signature of
attorney Natividad on page three (3) of the original); that pages of the original
and duplicate of said will were duly numbered; that the attestation clause
thereof contains all the facts required by law to be recited therein and is signed
by the aforesaid attesting witnesses; that the will is written in the language
known to and spoken by the testatrix that the attestation clause is in a
language also known to and spoken by the witnesses; that the will was
executed on one single occasion in duplicate copies; and that both the original
and the duplicate copies were duly acknowledged before Notary Public Jose
Oyengco of Manila on the same date June 2, 1956.
Witness Natividad who testified on his failure to sign page three (3) of the
original, admits that he may have lifted two pages instead of one when he
signed the same, but affirmed that page three (3) was signed in his presence.
Oppositors-appellants in turn introduced expert testimony to the effect that the
signatures of the testatrix in the duplicate (Exhibit "A-1") are not genuine nor
were they written or affixed on the same occasion as the original, and further
aver that granting that the documents were genuine, they were executed
through mistake and with undue influence and pressure because the testatrix
was deceived into adopting as her last will and testament the wishes of those
who will stand to benefit from the provisions of the will, as may be inferred from
the facts and circumstances surrounding the execution of the will and the
provisions and dispositions thereof, whereby proponents-appellees stand to
profit from properties held by them as attorneys-in-fact of the deceased and
not enumerated or mentioned therein, while oppositors-appellants are enjoined
not to look for other properties not mentioned in the will, and not to oppose the
probate of it, on penalty of forfeiting their share in the portion of free disposal.
We have examined the record and are satisfied, as the trial court was, that the
testatrix signed both original and duplicate copies (Exhibits "A" and "A-1",
respectively) of the will spontaneously, on the same in the presence of the
three attesting witnesses, the notary public who acknowledged the will; and
Atty. Samson, who actually prepared the documents; that the will and its
duplicate were executed in Tagalog, a language known to and spoken by both
the testator and the witnesses, and read to and by the testatrix and Atty.
Fermin Samson, together before they were actually signed; that the attestation
clause is also in a language known to and spoken by the testatrix and the
witnesses. The opinion of expert for oppositors, Mr. Felipe Logan, that the
signatures of the testatrix appearing in the duplicate original were not written
by the same had which wrote the signatures in the original will leaves us
unconvinced, not merely because it is directly contradicted by expert Martin
Ramos for the proponents, but principally because of the paucity of the
standards used by him to support the conclusion that the differences between
the standard and questioned signatures are beyond the writer's range of
normal scriptural variation. The expert has, in fact, used as standards only
three other signatures of the testatrix besides those affixed to the original of
the testament (Exh. A); and we feel that with so few standards the expert's
opinion and the signatures in the duplicate could not be those of the testatrix
becomes extremely hazardous. This is particularly so since the comparison
charts Nos. 3 and 4 fail to show convincingly that the are radical differences
that would justify the charge of forgery, taking into account the advanced age
of the testatrix, the evident variability of her signatures, and the effect of writing
fatigue, the duplicate being signed right the original. These, factors were not
discussed by the expert.
Similarly, the alleged slight variance in blueness of the ink in the admitted and
questioned signatures does not appear reliable, considering the standard and
challenged writings were affixed to different kinds of paper, with different
surfaces and reflecting power. On the whole, therefore, we do not find the
testimony of the oppositor's expert sufficient to overcome that of the notary and
the two instrumental witnesses, Torres and Natividad (Dr. Diy being in the
United States during the trial, did not testify).
Nor do we find adequate evidence of fraud or undue influence. The fact that
some heirs are more favored than others is proof of neither (see In re Butalid,
10 Phil. 27; Bugnao vs. Ubag, 14 Phil. 163; Pecson vs. Coronal, 45 Phil. 216).
Diversity of apportionment is the usual reason for making a testament;
otherwise, the decedent might as well die intestate. The testamentary
dispositions that the heirs should not inquire into other property and that they
should respect the distribution made in the will, under penalty of forfeiture of
their shares in the free part do not suffice to prove fraud or undue influence.
They appear motivated by the desire to prevent prolonged litigation which, as
shown by ordinary experience, often results in a sizeable portion of the estate
being diverted into the hands of non-heirs and speculators. Whether these
clauses are valid or not is a matter to be litigated on another occassion. It is
also well to note that, as remarked by the Court of Appeals in Sideco vs.
Page 24 of 62
Sideco, 45 Off. Gaz. 168, fraud and undue influence are mutually repugnant
and exclude each other; their joining as grounds for opposing probate shows
absence of definite evidence against the validity of the will.
On the question of law, we hold that the inadvertent failure of one witness to
affix his signature to one page of a testament, due to the simultaneous lifting of
two pages in the course of signing, is not per se sufficient to justify denial of
probate. Impossibility of substitution of this page is assured not only the fact
that the testatrix and two other witnesses did sign the defective page, but also
by its bearing the coincident imprint of the seal of the notary public before
whom the testament was ratified by testatrix and all three witnesses. The law
should not be so strictly and literally interpreted as to penalize the testatrix on
account of the inadvertence of a single witness over whose conduct she had
no control, where the purpose of the law to guarantee the identity of the
testament and its component pages is sufficiently attained, no intentional or
deliberate deviation existed, and the evidence on record attests to the full
observance of the statutory requisites. Otherwise, as stated in Vda. de Gil. vs.
Murciano, 49 Off. Gaz. 1459, at 1479 (decision on reconsideration) "witnesses
may sabotage the will by muddling or bungling it or the attestation clause".
That the failure of witness Natividad to sign page three (3) was entirely through
pure oversight is shown by his own testimony as well as by the duplicate copy
of the will, which bears a complete set of signatures in every page. The text of
the attestation clause and the acknowledgment before the Notary Public
likewise evidence that no one was aware of the defect at the time.
This would not be the first time that this Court departs from a strict and literal
application of the statutory requirements, where the purposes of the law are
otherwise satisfied. Thus, despite the literal tenor of the law, this Court has
held that a testament, with the only page signed at its foot by testator and
witnesses, but not in the left margin, could nevertheless be probated (Abangan
vs. Abangan, 41 Phil. 476); and that despite the requirement for the correlative
lettering of the pages of a will, the failure to make the first page either by letters
or numbers is not a fatal defect (Lopez vs. Liboro, 81 Phil. 429). These
precedents exemplify the Court's policy to require satisfaction of the legal
requirements in order to guard against fraud and bid faith but without undue or
unnecessary curtailment of the testamentary privilege.
The appellants also argue that since the original of the will is in existence and
available, the duplicate (Exh. A-1) is not entitled to probate. Since they
opposed probate of original because it lacked one signature in its third page, it
is easily discerned that oppositors-appellants run here into a dilemma; if the
original is defective and invalid, then in law there is no other will but the duly
signed carbon duplicate (Exh. A-1), and the same is probatable. If the original
is valid and can be probated, then the objection to the signed duplicate need
not be considered, being superfluous and irrelevant. At any rate, said
duplicate, Exhibit A-1, serves to prove that the omission of one signature in the
third page of the original testament was inadvertent and not intentional.
That the carbon duplicate, Exhibit A-1, was produced and admitted without a
new publication does not affect the jurisdiction of the probate court, already
conferred by the original publication of the petition for probate. The amended
petition did not substantially alter the one first filed, but merely supplemented it
by disclosing the existence of the duplicate, and no showing is made that new
interests were involved (the contents of Exhibit A and A-1 are admittedly
identical); and appellants were duly notified of the proposed amendment. It is
nowhere proved or claimed that the amendment deprived the appellants of any
substantial right, and we see no error in admitting the amended petition.
IN VIEW OF THE FOREGOING, the decision appealed from is affirmed, with
costs against appellants.
G.R. No. L-5826 April 29, 1953
Testate estate of the late VICENTE CAGRO. JESUSA CAGRO, petitioner-
appellee,
vs.
PELAGIO CAGRO, ET AL., oppositors-appellants.
Clouduallo Lucero and Vicente C. Santos for appellants.
Marciano Chitongco and Zosimo B. Echanova for appellee.
PARAS, C.J.:
This is an appeal interposed by the oppositors from a decision of the Court of
First Instance of Samar, admitting to probate the will allegedly executed by
Vicente Cagro who died in Laoangan, Pambujan, Samar, on February 14,
1949.
Page 25 of 62
The main objection insisted upon by the appellant in that the will is fatally
defective, because its attestation clause is not signed by the attesting
witnesses. There is no question that the signatures of the three witnesses to
the will do not appear at the bottom of the attestation clause, although the
page containing the same is signed by the witnesses on the left-hand margin.
We are of the opinion that the position taken by the appellant is correct. The
attestation clause is 'a memorandum of the facts attending the execution of the
will' required by law to be made by the attesting witnesses, and it must
necessarily bear their signatures. An unsigned attestation clause cannot be
considered as an act of the witnesses, since the omission of their signatures at
the bottom thereof negatives their participation.
The petitioner and appellee contends that signatures of the three witnesses on
the left-hand margin conform substantially to the law and may be deemed as
their signatures to the attestation clause. This is untenable, because said
signatures are in compliance with the legal mandate that the will be signed on
the left-hand margin of all its pages. If an attestation clause not signed by the
three witnesses at the bottom thereof, be admitted as sufficient, it would be
easy to add such clause to a will on a subsequent occasion and in the
absence of the testator and any or all of the witnesses.
Wherefore, the appealed decision is reversed and the probate of the will in
question denied. So ordered with costs against the petitioner and appellee.
Pablo, Bengzon, Montemayor, Jugo and Labrador, JJ., concur.
Separate Opinions
BAUTISTA ANGELO, J., dissenting:
I dissent. In my opinion the will in question has substantially complied with the
formalities of the law and, therefore, should be admitted to probate . It appears
that the will was signed by the testator and was attested by three instrumental
witnesses, not only at the bottom, but also on the left-hand margin. The
witnesses testified not only that the will was signed by the testator in their
presence and in the presence of each other but also that when they did so, the
attestation clause was already written thereon. Their testimony has not been
contradicted. The only objection set up by the oppositors to the validity of the
will is the fact that the signatures of the instrumental witnesses do not appear
immediately after the attestation clause.
This objection is too technical to be entertained. In the case of Abangan vs.
Abangan, (40 Phil., 476), this court said that when the testamentary
dispositions "are wholly written on only one sheet signed at the bottom by the
testator and three witnesses (as the instant case),their signatures on the left
margin of said sheet would be completely purposeless." In such a case, the
court said, the requirement of the signatures on the left hand margin was not
necessary because the purpose of the law — which is to avoid the substitution
of any of the sheets of the will, thereby changing the testator's dispositions —
has already been accomplished. We may say the same thing in connection
with the will under consideration because while the three instrumental
witnesses did not sign immediately by the majority that it may have been only
added on a subsequent occasion and not at the uncontradicted testimony of
said witnesses to the effect that such attestation clause was already written in
the will when the same was signed.
The following observation made by this court in the Abangan case is very
fitting:
The object of the solemnities surrounding the execution of wills is to
close the door against bad faith and fraud to avoid substitution of wills
and testaments and to guaranty their truth and authenticity. Therefore
the laws on this subject should be interpreted in such a way as to
attain these primordial ends. But, on the other hand, also one must not
lose sight of the fact that it i not the object of the law to restrain and
curtail the exercise of the right to make a will. So when an
interpretation already given assures such ends, any other
interpretation already given assures such ends, any other
interpretation whatsoever, that adds nothing but demands more
requisites entirely unnecessary useless and frustrative of the testator's
last will, must be disregarded. (supra)
We should not also overlook the liberal trend of the New Civil Code in the
matter of interpretation of wills, the purpose of which, in case of doubt, is to
give such interpretation that would have the effect of preventing intestacy
(article 788 and 791, New Civil Code)
I am therefore of the opinion that the will in question should be admitted to
probate.
Feria, J., concurs.
Page 26 of 62
TUASON, J., dissenting:
I cuncur in Mr. Justice Bautista's dissenting opinion and may add that the
majority decision erroneously sets down as a fact that the attestation clause
was no signed when the witnesses signatures appear on the left margin and
the real and only question is whether such signatures are legally sufficient.
The only answers, in our humble opinion, is yes. The law on wills does not
provide that the attesting witness should sign the clause at the bottom. In the
absence of such provision, there is no reason why signatures on the margin
are not good. A letter is not any the less the writter's simply because it was
signed, not at the conventional place but on the side or on top.
Feria, J., concurs.
G.R. No. L-7179 June 30, 1955
Testate Estate of the Late Apolinaria Ledesma. FELICIDAD
JAVELLANA, petitioner-appellee,
vs.
DOÑA MATEA LEDESMA, oppositor-appellant.
Fulgencio Vega and Felix D. Bacabac for appellant.
Benjamin H. Tirot for appellee.
REYES, J.B.L., J.:
By order of July 23, 1953, the Court of First Instance of Iloilo admitted to
probate the documents in the Visayan dialect, marked Exhibits D and E, as the
testament and codicil duly executed by the deceased Da. Apolinaria Ledesma
Vda. de Javellana, on March 30, 1950, and May 29, 1952, respectively, with
Ramon Tabiana, Gloria Montinola de Tabiana and Vicente Yap as witnesses.
The contestant, Da. Matea Ledesma, sister and nearest surviving relative of
said deceased, appealed from the decision, insisting that the said exhibits
were not executed in conformity with law. The appeal was made directly to this
Court because the value of the properties involved exceeded two hundred
thousand pesos.
Originally the opposition to the probate also charged that the testatrix lacked
testamentary capacity and that the dispositions were procured through undue
influence. These grounds were abandoned at the hearing in the court below,
where the issue was concentrated into three specific questions: (1) whether
the testament of 1950 was executed by the testatrix in the presence of the
instrumental witnesses; (2) whether the acknowledgment clause was signed
and the notarial seal affixed by the notary without the presence of the testatrix
and the witnesses; and (3) if so, whether the codicil was thereby rendered
invalid and ineffective. These questions are the same ones presented to us for
resolution.
The contestant argues that the Court below erred in refusing credence to her
witnesses Maria Paderogao and Vidal Allado, cook and driver, respectively, of
the deceased Apolinaria Ledesma. Both testified that on March 30, 1950, they
saw and heard Vicente Yap (one of the witnesses to the will) inform the
deceased that he had brought the "testamento" and urge her to go to attorney
Tabiana's office to sign it; that Da. Apolinaria manifested that she could not go,
because she was not feeling well; and that upon Yap's insistence that the will
had to be signed in the attorney's office and not elsewhere, the deceased took
the paper and signed it in the presence of Yap alone, and returned it with the
statement that no one would question it because the property involved was
exclusively hers.
Our examination of the testimony on record discloses no grounds for reversing
the trial Court's rejection of the improbable story of the witnesses. It is squarely
contradicted by the concordant testimony of the instrumental witnesses,
Vicente Yap, Atty. Ramon Tabiana, and his wife Gloria Montinola, who asserted
under oath that the testament was executed by testatrix and witnesses in the
presence of each other, at the house of the decedent on General Hughes St.,
Iloilo City, on March 30, 1950. And it is highly unlikely, and contrary to usage,
that either Tabiana or Yap should have insisted that Da. Apolinaria, an infirm
lady then over 80 years old, should leave her own house in order to execute
her will, when all three witnesses could have easily repaired thither for the
purpose. Moreover, the cross-examination has revealed fatal flaws in the
testimony of Contestant's witnesses. Both claim to have heard the word
"testamento" for the first time when Yap used it; and they claimed ability to
recall that word four years later, despite the fact that the term meant nothing to
either. It is well known that what is to be remembered must first be rationally
conceived and assimilated (II Moore on Facts, p. 884). Likewise, Maria
Paderogao was positive that Yap brought the will, and that the deceased alone
signed it, precisely on March 30, 1950; but she could remember no other date,
nor give satisfactory explanation why that particular day stuck in her mind.
Page 27 of 62
Worse still, Allado claimed to have heard what allegedly transpired between
Yap and Da. Apolinaria from the kitchen of the house, that was later proved to
have been separated from the deceased's quarters, and standing at a much
lower level, so that conversations in the main building could not be distinctly
heard from the kitchen. Later, on redirect examination, Allado sought to cure
his testimony by claiming that he was upstairs in a room where the servants
used to eat when he heard Yap converse with his mistress; but this correction
is unavailing, since it was plainly induced by two highly leading questions from
contestant's counsel that had been previously ruled out by the trial Court.
Besides, the contradiction is hardly consonant with this witness' 18 years of
service to the deceased.
Upon the other hand, the discrepancies in the testimony of the instrumental
witnesses urged upon us by the contestant-appellant, concerning the presence
or absence of Aurelio Montinola at the signing of the testament or of the
codicil, and the identity of the person who inserted the date therein, are not
material and are largely imaginary, since the witness Mrs. Tabiana confessed
inability to remember all the details of the transaction. Neither are we
impressed by the argument that the use of some Spanish terms in the codicil
and testament (like legado, partes iguales, plena propiedad) is proof that its
contents were not understood by the testatrix, it appearing in evidence that
those terms are of common use even in the vernacular, and that the deceased
was a woman of wide business interests.
The most important variation noted by the contestants concerns that signing of
the certificate of acknowledgment (in Spanish) appended to the Codicil in
Visayan, Exhibit E. Unlike the testament, this codicil was executed after the
enactment of the new Civil Code, and, therefore, had to be acknowledged
before a notary public (Art. 806). Now, the instrumental witnesses (who
happen to be the same ones who attested the will of 1950) asserted that after
the codicil had been signed by the testatrix and the witnesses at the San Pablo
Hospital, the same was signed and sealed by notary public Gimotea on the
same occasion. On the other hand, Gimotea affirmed that he did not do so, but
brought the codicil to his office, and signed and sealed it there. The variance
does not necessarily imply conscious perversion of truth on the part of the
witnesses, but appears rather due to a well-established phenomenon, the
tendency of the mind, in recalling past events, to substitute the usual and
habitual for what differs slightly from it (II Moore on Facts, p. 878; The Ellen
McGovern, 27 Fed. 868, 870).
At any rate, as observed by the Court below, whether or not the notary signed
the certification of acknowledgment in the presence of the testatrix and the
witnesses, does not affect the validity of the codicil. Unlike the Code of 1889
(Art. 699), the new Civil Code does not require that the signing of the testator,
witnesses and notary should be accomplished in one single act. A comparison
of Articles 805 and 806 of the new Civil Code reveals that while testator and
witnesses sign in the presence of each other, all that is thereafter required is
that "every will must be acknowledged before a notary public by the testator
and the witnesses" (Art. 806); i.e., that the latter should avow to the certifying
officer the authenticity of their signatures and the voluntariness of their actions
in executing the testamentary disposition. This was done in the case before us.
The subsequent signing and sealing by the notary of his certification that the
testament was duly acknowledged by the participants therein is no part of the
acknowledgment itself nor of the testamentary act. Hence their separate
execution out of the presence of the testatrix and her witnesses can not be
said to violate the rule that testaments should be completed without
interruption (Andalis vs. Pulgueras, 59 Phil. 643), or, as the Roman maxim
puts it, "uno codem die ac tempore in eadem loco", and no reversible error
was committed by the Court in so holding. It is noteworthy that Article 806 of
the new Civil Code does not contain words requiring that the testator and the
witnesses should acknowledge the testament on the same day or occasion
that it was executed.
The decision admitting the will to probate is affirmed, with costs against
appellant.
G.R. No. L-32213 November 26, 1973
AGAPITA N. CRUZ, petitioner,
vs.
HON. JUDGE GUILLERMO P. VILLASOR, Presiding Judge of Branch I,
Court of First Instance of Cebu, and MANUEL B. LUGAY, respondents.
Paul G. Gorrez for petitioner.
Mario D. Ortiz for respondent Manuel B. Lugay.
ESGUERRA, J.:
Petition to review on certiorari the judgment of the Court First Instance of Cebu
allowing the probate of the last will a testament of the late Valente Z. Cruz.
Page 28 of 62
Petitioner-appellant Agapita N. Cruz, the surviving spouse of the said decease
opposed the allowance of the will (Exhibit "E"), alleging the will was executed
through fraud, deceit, misrepresentation and undue influence; that the said
instrument was execute without the testator having been fully informed of the
content thereof, particularly as to what properties he was disposing and that
the supposed last will and testament was not executed in accordance with law.
Notwithstanding her objection, the Court allowed the probate of the said last
will and testament Hence this appeal by certiorari which was given due course.
The only question presented for determination, on which the decision of the
case hinges, is whether the supposed last will and testament of Valente Z.
Cruz (Exhibit "E") was executed in accordance with law, particularly Articles
805 and 806 of the new Civil Code, the first requiring at least three credible
witnesses to attest and subscribe to the will, and the second requiring the
testator and the witnesses to acknowledge the will before a notary public.
Of the three instrumental witnesses thereto, namely Deogracias T. Jamaloas
Jr., Dr. Francisco Pañares and Atty. Angel H. Teves, Jr., one of them, the last
named, is at the same time the Notary Public before whom the will was
supposed to have been acknowledged. Reduced to simpler terms, the
question was attested and subscribed by at least three credible witnesses in
the presence of the testator and of each other, considering that the three
attesting witnesses must appear before the notary public to acknowledge the
same. As the third witness is the notary public himself, petitioner argues that
the result is that only two witnesses appeared before the notary public to
acknowledge the will. On the other hand, private respondent-appellee, Manuel
B. Lugay, who is the supposed executor of the will, following the reasoning of
the trial court, maintains that there is substantial compliance with the legal
requirement of having at least three attesting witnesses even if the notary
public acted as one of them, bolstering up his stand with 57 American
Jurisprudence, p. 227 which, insofar as pertinent, reads as follows:
It is said that there are, practical reasons for upholding a will as
against the purely technical reason that one of the witnesses
required by law signed as certifying to an acknowledgment of
the testator's signature under oath rather than as attesting the
execution of the instrument.
After weighing the merits of the conflicting claims of the parties, We are
inclined to sustain that of the appellant that the last will and testament in
question was not executed in accordance with law. The notary public before
whom the will was acknowledged cannot be considered as the third
instrumental witness since he cannot acknowledge before himself his having
signed the will. To acknowledge before means to avow (Javellana v. Ledesma,
97 Phil. 258, 262; Castro v. Castro, 100 Phil. 239, 247); to own as genuine, to
assent, to admit; and "before" means in front or preceding in space or ahead
of. (The New Webster Encyclopedic Dictionary of the English Language, p. 72;
Funk & Wagnalls New Standard Dictionary of the English Language, p. 252;
Webster's New International Dictionary 2d. p. 245.) Consequently, if the third
witness were the notary public himself, he would have to avow assent, or
admit his having signed the will in front of himself. This cannot be done
because he cannot split his personality into two so that one will appear before
the other to acknowledge his participation in the making of the will. To permit
such a situation to obtain would be sanctioning a sheer absurdity.
Furthermore, the function of a notary public is, among others, to guard against
any illegal or immoral arrangement Balinon v. De Leon, 50 0. G. 583.) That
function would defeated if the notary public were one of the attesting
instrumental witnesses. For them he would be interested sustaining the validity
of the will as it directly involves him and the validity of his own act. It would
place him in inconsistent position and the very purpose of acknowledgment,
which is to minimize fraud (Report of Code Commission p. 106-107), would be
thwarted.
Admittedly, there are American precedents holding that notary public may, in
addition, act as a witness to the executive of the document he has notarized.
(Mahilum v. Court Appeals, 64 0. G. 4017; 17 SCRA 482; Sawyer v. Cox, 43 Ill.
130). There are others holding that his signing merely as notary in a will
nonetheless makes him a witness thereon (Ferguson v. Ferguson, 47 S. E. 2d.
346; In Re Douglas Will, N. Y. S. 2d. 641; Ragsdal v. Hill, 269 S. W. 2d. 911,
Tyson Utterback, 122 So. 496; In Re Baybee's Estate 160 N. 900; W. Merill v.
Boal, 132 A. 721; See also Trenwith v. Smallwood, 15 So. 1030). But these
authorities do not serve the purpose of the law in this jurisdiction or are not
decisive of the issue herein because the notaries public and witnesses referred
to aforecited cases merely acted as instrumental, subscribing attesting
witnesses, and not as acknowledging witnesses. He the notary public acted
not only as attesting witness but also acknowledging witness, a situation not
envisaged by Article 805 of the Civil Code which reads:
ART. 806. Every will must be acknowledged before a notary
public by the testator and the witnesses. The notary public shall
not be required to retain a copy of the will or file another with
the office of the Clerk of Court. [Emphasis supplied]
Page 29 of 62
To allow the notary public to act as third witness, or one the attesting and
acknowledging witnesses, would have the effect of having only two attesting
witnesses to the will which would be in contravention of the provisions of
Article 80 be requiring at least three credible witnesses to act as such and of
Article 806 which requires that the testator and the required number of
witnesses must appear before the notary public to acknowledge the will. The
result would be, as has been said, that only two witnesses appeared before
the notary public for or that purpose. In the circumstances, the law would not
be duly in observed.
FOR ALL THE FOREGOING, the judgment appealed from is hereby reversed
and the probate of the last will and testament of Valente Z. Cruz (Exhibit "E") is
declared not valid and hereby set aside.
Cost against the appellee.
G.R. No. 103554 May 28, 1993
TEODORO CANEDA, LORENZA CANEDA, TERESA CANEDA, JUAN
CABALLERO, AUREA CABALLERO, OSCAR LAROSA, HELEN
CABALLERO, SANTOS CABALLERO, PABLO CABALLERO, VICTOR
RAGA, MAURICIA RAGA, QUIRICA RAGA, RUPERTO ABAPO,
represented herein by his Attorney-in-Fact, ARMSTICIA * ABAPO
VELANO, and CONSESO CANEDA, represented herein by his heirs,
JESUS CANEDA, NATIVIDAD CANEDA and ARTURO
CANEDA, petitioners,
vs.
HON. COURT OF APPEALS and WILLIAM CABRERA, as Special
Administrator of the Estate of Mateo Caballero, respondents.
Palma, Palma & Associates for petitioners.
Emilio Lumontad, Jr. for private respondents.
REGALADO, J.:
Presented for resolution by this Court in the present petition for review
on certiorari is the issue of whether or not the attestation clause contained in
the last will and testament of the late Mateo Caballero complies with the
requirements of Article 805, in relation to Article 809, of the Civil Code.
The records show that on December 5, 1978, Mateo Caballero, a widower
without any children and already in the twilight years of his life, executed a last
will and testament at his residence in Talisay, Cebu before three attesting
witnesses, namely, Cipriano Labuca, Gregorio Cabando and Flaviano
Toregosa. The said testator was duly assisted by his lawyer, Atty. Emilio
Lumontad, and a notary public, Atty. Filoteo Manigos, in the preparation of that
last will. 1 It was declared therein, among other things, that the testator was leaving
by way of legacies and devises his real and personal properties to Presentacion
Gaviola, Angel Abatayo, Rogelio Abatayo, Isabelito Abatayo, Benoni G. Cabrera
and Marcosa Alcantara, all of whom do not appear to be related to the testator. 2
Four months later, or on April 4, 1979, Mateo Caballero himself filed a petition
docketed as Special Proceeding No. 3899-R before Branch II of the then Court
of First Instance of Cebu seeking the probate of his last will and testament.
The probate court set the petition for hearing on August 20, 1979 but the same
and subsequent scheduled hearings were postponed for one reason to
another. On May 29, 1980, the 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
administrator of the testator's estate, the estimated value of which was
P24,000.00, and he was so appointed by the probate court in its order of March 6,
1981. 4
Thereafter, herein petitioners, claiming to be nephews and nieces of the
testator, instituted a second petition, entitled "In the Matter of the Intestate
Estate of Mateo Caballero" and docketed as Special Proceeding No. 3965-R,
before Branch IX of the aforesaid Court of First Instance of Cebu. On October
18, 1982, herein petitioners had their said petition intestate proceeding
consolidated with Special Proceeding No. 3899-R in Branch II of the Court of
First Instance of Cebu and opposed thereat the probate of the Testator's will
and the appointment of a special administrator for his estate. 5
Benoni Cabrera died on February 8, 1982 hence the probate court, now known
as Branch XV of the Regional Trial Court of Cebu, appointed William Cabrera
as special administrator on June 21, 1983. Thereafter, on July 20, 1983, it
issued an order for the return of the 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 resolved first. On March 26, 1984 the case was reraffled and
Page 30 of 62
eventually assigned to Branch XII of the Regional Trial Court of Cebu where it
remained until the conclusion of the probate proceedings. 6
In the course of the hearing in Special Proceeding No. 3899-R, herein
petitioners appeared as oppositors and objected to the allowance of the
testator's will on the ground that on the alleged date of its execution, the
testator was already in the poor state of health such that he could not have
possibly executed the same. Petitioners likewise reiterated the issue as to the
genuineness of the signature of the testator therein. 7
On the other hand, one of the attesting witnesses, Cipriano Labuca, and the
notary public Atty. Filoteo Manigos, testified that the testator executed the will
in question in their presence while he was of sound and disposing mind and
that, contrary to the assertions of the oppositors, Mateo Caballero was in good
health and was not unduly 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
witnesses were not presented in the probate hearing as the had died by then. 8
On April 5, 1988, the probate court rendered a decision declaring the will in
question as the last will and testament of the late Mateo Caballero, on the
ratiocination that:
. . . The self-serving testimony of the two witnesses of the
oppositors cannot overcome the positive testimonies of Atty.
Filoteo Manigos and Cipriano Labuca who clearly told the
Court that indeed Mateo Caballero executed the Last Will and
Testament now marked Exhibit "C" on December 5, 1978.
Moreover, the fact that it was Mateo Caballero who initiated the
probate of his Will during his lifetime when he caused the filing
of the original petition now marked Exhibit "D" clearly
underscores the fact that this was indeed his Last Will. At the
start, counsel for the oppositors manifested that he would want
the signature of Mateo Caballero in Exhibit "C" examined by a
handwriting expert of the NBI but it would seem that despite
their avowal and intention for the examination of this signature
of Mateo Caballero in Exhibit "C", nothing came out of it
because they abandoned the idea and instead presented
Aurea Caballero and Helen Caballero Campo as witnesses for
the oppositors.
All told, it is the finding of this Court that Exhibit "C" is the Last
Will and Testament of Mateo Caballero and that it was
executed in accordance with all the requisites of the law. 9
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. They asserted therein
that the will in question is null and void for the reason that its attestation clause
is fatally defective since it fails to specifically state that the instrumental
witnesses to the will witnessed the testator signing the will in their presence
and that they also signed the will and all the pages thereof in the presence of
the testator and of one another.
On October 15, 1991, respondent court promulgated its decision 10 affirming
that of the trial court, and ruling that the attestation clause in the last will of Mateo
Caballero substantially complies with Article 805 of the Civil Code, thus:
The question therefore is whether the attestation clause in
question may be considered as having substantialy complied
with the requirements of Art. 805 of the Civil Code. What
appears in the attestation clause which the oppositors claim to
be defective is "we do certify that the testament was read by
him and the attestator, Mateo Caballero, has published unto us
the foregoing will consisting of THREE PAGES, including the
acknowledgment, each page numbered correlatively in letters
of the upper part of each page, as his Last Will and
Testament, and he has signed the same and every page
thereof, on the spaces provided for his signature and on the
left hand margin in the presence of the said testator and in the
presence of each and all of us (emphasis supplied).
To our thinking, this is sufficient compliance and no evidence
need be presented to indicate the 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 the language
of the law would have it that the testator signed the will "in the
presence of the instrumental witnesses, and that the latter
witnessed and signed the will and all the pages thereof in the
presence of the testator and of one another." If not completely
or ideally perfect in accordance with the wordings of Art. 805
but (sic) the phrase as formulated is in substantial compliance
with the requirement of the law." 11
Page 31 of 62
Petitioners moved for the reconsideration of the said ruling of respondent
court, but the same was denied in the latter's resolution of January 14,
1992, 12 hence this appeal now before us. Petitioners assert that respondent court
has ruled upon said issue in a manner not in accord with the law and settled
jurisprudence on the matter and are now questioning once more, on the same
ground as that raised before respondent court, the validity of the attestation clause
in the last will of Mateo Caballero.
We find the present petition to be meritorious, as we shall shortly hereafter,
after some prefatory observations which we feel should be made in aid of the
rationale for our resolution of the controversy.
1. A will has been defined as a species of conveyance whereby a person is
permitted, with the formalities prescribed by law, to control to a certain degree
the disposition of his estate after his death. 13 Under the Civil Code, there are two
kinds of wills which a testator may execute. 14 the first kind is the ordinary or
attested will, the execution of which is governed by Articles 804 to 809 of the Code.
Article 805 requires that:
Art. 805. Every will, other than a holographic will, must be
subscribed at the end thereof by the testator himself or by the
testator's name written by some other person in his presence,
and by his express direction, and attested and subscribed by
three or more credible witnesses in the presence of the testator
and of one another.
The testator or the person requested by him to write his name
and the instrumental witnesses of the will, shall also sign, as
aforesaid, each and every page thereof, except the last, on the
left margin, and all the pages shall be numbered correlatively in
letters placed on the upper part of each page.
The attestation should state the number of pages used upon
which the will is written, and the fact that the testator signed the
will and every page thereof, or caused some other person to
write his name, under his express direction, in the presence of
the instrumental witnesses, and that the latter witnessed and
signed the will and all the pages thereof in the presence of the
testator and of one another.
If the attestation clause is in a language not known to the
witness, it shall be interpreted to them.
In addition, the ordinary will must be acknowledged before a notary public by a
testator and the attesting witness. 15 hence it is likewise 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 so. Otherwise, he should designate two
persons who would read the will and communicate its contents to him in a
practicable manner. On the other hand, if the testator is blind, the will should be
read to him twice; once, by anyone of the witnesses thereto, and then again, by
the notary public before whom it is acknowledged. 16
The other kind of will is the holographic will, which Article 810 defines as one
that is entirely written, dated, and signed by the testator himself. This kind of
will, unlike the ordinary type, requires no attestation by witnesses. A common
requirement in both kinds of will is that they should be in writing and must have
been executed in a language or dialect known to the testator. 17
However, in the case of an ordinary or attested will, its attestation clause need
not be written in a language or dialect known to the testator since it does not
form part of the testamentary disposition. Furthermore, the language used in
the attestation clause likewise need not even be known to the attesting
witnesses. 18 The last paragraph of Article 805 merely requires that, in such a
case, the attestation clause shall be interpreted to said witnesses.
An attestation clause refers to that part of an ordinary will whereby the
attesting witnesses certify that the instrument has been executed before them
and to the manner of the execution the same. 19 It is a separate memorandum or
record of the facts surrounding the conduct of execution and once signed by the
witnesses, it gives affirmation to the fact that compliance with the essential
formalities required by law has been observed. 20 It is made for the purpose of
preserving in a permanent form a record of the facts that attended the execution of
a particular will, so that in case of failure of the memory of the attesting witnesses,
or other casualty, such facts may still be proved. 21
Under the third paragraph of Article 805, such a clause, the complete lack of
which would result in the invalidity of the will, 22 should state (1) the number of
the pages used upon which the will is written; (2) that the testator signed, or
expressly caused another to sign, the will and every page thereof in the presence
of the attesting witnesses; and (3) that the attesting witnesses witnessed the
signing by the testator 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
another.
Page 32 of 62
The purpose of the law in requiring the clause to state the number of pages on
which the will is written is to safeguard against possible interpolation or
omission of one or some of its pages and to prevent any increase or decrease
in the pages; 23 whereas the subscription of the signature of the testator and the
attesting witnesses is made for the purpose of authentication and identification,
and thus indicates that the will is the very same instrument executed by the
testator and attested to by the witnesses. 24
Further, by attesting and subscribing to the will, the witnesses thereby declare
the due execution of the will as embodied in the attestation clause. 25 The
attestation clause, therefore, provide strong legal guaranties for the due execution
of a will and to insure the authenticity thereof. 26 As it appertains only to the
witnesses and not to the 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
easy to add the clause on a subsequent occasion in the absence of the testator
and its witnesses. 28
In its report, the Code Commission commented on the reasons of the law for
requiring the formalities to be followed in the execution of wills, in the following
manner:
The underlying and fundamental objectives permeating the
provisions on the law on wills in this Project consists in the
liberalization of the manner of their execution with the end in
view of giving the testator more freedom in expressing his last
wishes, but with sufficient safeguards and restrictions to
prevent the commission of fraud and the exercise of undue and
improper pressure and influence upon the testator.
This objective is in accord with the modern tendency with
respect to the formalities in the execution of wills. . . . 29
2. An examination of the last will and testament of Mateo Caballero shows that
it is comprised of three sheets all of which have been numbered correlatively,
with the left margin of each page thereof bearing the respective signatures of
the testator and the three attesting witnesses. The part of the will containing
the testamentary dispositions is expressed in the Cebuano-Visayan dialect and
is signed 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 signed at
the end thereof by the three attesting witnesses hereto. 30 Since it is the
proverbial bone of contention, we reproduce it again for facility of reference:
We, the undersigned attesting Witnesses, whose Residences
and postal addresses appear on the Opposite of our respective
names, we do hereby certify that the Testament was read by
him and the testator, MATEO CABALLERO; has published unto
us the foregoing Will consisting of THREE PAGES, including
the Acknowledgment, each page numbered correlatively in the
letters on the upper part of each page, as his Last Will and
Testament and he has the same and every page thereof, on
the spaces provided for his signature and on the left hand
margin, in the presence of the said testator and in the presence
of each and all of us.
It will be noted that Article 805 requires that the witness should both attest and
subscribe to the will in the presence of the testator and of one another.
"Attestation" and "subscription" differ in meaning. Attestation is the act of
senses, while subscription is the act of the hand. The former is mental, the
latter mechanical, and to attest a will is to know that it was published as such,
and to certify the facts required to constitute an actual and legal publication;
but to subscribe a paper published as a will is only to write on the same paper
the names of the witnesses, for the sole purpose of identification. 31
In Taboada vs. Rizal, 32 we clarified that attestation consists in witnessing the
testator's execution of the will in order to see and take note mentally 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 fact. On the other hand, subscription is the
signing of the witnesses' names upon the same paper for the purpose of
identification of such paper as the will which was executed by the testator. As it
involves a mental act, there would be no means, therefore, of ascertaining by a
physical examination of the will whether the witnesses had indeed signed in the
presence of the testator and of each other unless this is substantially expressed in
the attestation.
It is contended by petitioners that the aforequoted attestation clause, in
contravention of the express requirements of the third paragraph of Article 805
of the Civil Code for attestation clauses, fails to specifically state the fact that
the attesting witnesses the testator sign the will and all its pages in their
presence and that they, the witnesses, likewise signed the will and every page
thereof in the presence of the testator and of each other. We agree.
What is fairly apparent upon a careful reading of the attestation clause herein
assailed is the fact that while it recites that the testator indeed signed the will
and all its pages in the presence of the three attesting witnesses and states as
Page 33 of 62
well the number of pages that were used, the same does not expressly state
therein the circumstance that said witnesses subscribed their respective
signatures to the will in the presence of the testator and of each other.
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 it is immediately
preceded by the words "as his Last Will and Testament." On the other hand,
although the words "in the presence of the testator and in the presence of each
and all of us" may, at first blush, appear to likewise signify and refer to the
witnesses, it must, however, be interpreted as referring only to the testator
signing in the presence of the witnesses since said phrase immediately follows
the words "he has signed the same and every page thereof, on the spaces
provided for his signature and on the left hand margin." What is then 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 testator and of one
another.
It is our considered view that the absence of that statement required by law is
a fatal defect or imperfection which must necessarily result in the disallowance
of the will that is here sought to be admitted to probate. Petitioners are correct
in pointing out that the aforestated defect in the attestation clause obviously
cannot be characterized as merely involving the form of the will or the
language used therein which would warrant the application of the substantial
compliance rule, as contemplated in the pertinent provision thereon in the Civil
Code, to wit:
Art. 809. In the absence of bad faith, forgery, or fraud, or undue
and improper pressure and influence, defects and
imperfections in the form of attestation or in the language used
therein shall not render the will invalid if it is not proved that the
will was in fact executed and attested in substantial compliance
with all the requirements of article 805" (Emphasis supplied.)
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 therefrom that the said witness affixed
their respective signatures in the presence of the testator and of each other
since, as petitioners correctly observed, the presence of said signatures only
establishes the fact that it was indeed signed, but it does not prove that the
attesting witnesses did subscribe to the will in the presence of the testator and
of each other. The execution of a will is supposed to be one act so that where
the testator and the witnesses sign on various days or occasions and in
various combinations, the will cannot be stamped with the imprimatur of
effectivity. 33
We believe that the further comment of former Justice J.B.L. Reyes 34 regarding
Article 809, wherein he urged caution in the application of the substantial
compliance rule therein, is correct and should be applied in the case under
consideration, as well as to future cases with similar questions:
. . . The rule must be limited to disregarding those defects that
can be supplied by an examination of the will itself: whether all
the pages are consecutively numbered; whether the signatures
appear in each and every page; whether the subscribing
witnesses are three or the will was notarized. All theses are
facts that the will itself can reveal, and defects or even
omissions concerning them in the attestation clause can be
safely disregarded. But the total number of pages, and whether
all persons required to sign did so in the presence of each
other must substantially appear in the attestation clause, being
the only check against perjury in the probate proceedings.
(Emphasis ours.)
3. We stress once more that under Article 809, the defects and imperfections
must only be with respect to the form of the attestation or the language
employed therein. Such defects or imperfections would not render a will invalid
should it be proved that the will was really executed and attested in
compliance with Article 805. In this regard, however, the manner of proving the
due execution and attestation has been held to be limited to merely an
examination of the will itself without resorting to evidence aliunde, whether oral
or written.
The foregoing considerations do not apply where the attestation clause 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 other. 35 In such a situation, the
defect is not only in the form or language of the attestation clause but the total
absence of a specific element required by Article 805 to be specifically stated in
the attestation clause of a will. That is precisely the defect complained of in the
present case since there is no plausible way by which we can read into the
questioned attestation clause statement, or an implication thereof, that the
attesting witness did actually bear witness to the signing by the testator of the will
and all of its pages and that said instrumental witnesses also signed the will and
every page thereof in the presence of the testator and of one another.
Page 34 of 62
Furthermore, the rule on substantial compliance in Article 809 cannot be
revoked or relied on by respondents since it presupposes that the defects in
the attestation clause can be cured or supplied by the text of the will or a
consideration of matters apparent therefrom which would provide the data not
expressed in the attestation clause or from which it may necessarily be
gleaned or clearly inferred that the acts 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.
In the case at bar, contrarily, proof of the acts required to have been performed
by the attesting witnesses can be supplied by only extrinsic evidence thereof,
since an overall appreciation of the contents of the will yields no basis
whatsoever from with such facts may be plausibly deduced. What private
respondent insists on are the testimonies of his witnesses alleging that they
saw the compliance with such requirements by the instrumental witnesses,
oblivious of the fact that he is thereby resorting to extrinsic evidence to prove
the same and would accordingly be doing by the indirection what in law he
cannot do directly.
4. Prior to the advent of the Civil Code on August 30, 1950, there was a
divergence of views as to which manner of interpretation should be followed in
resolving issues centering on compliance with the legal formalities required in
the execution of wills. The formal requirements were at that time embodied
primarily in Section 618 of Act No. 190, the Code of Civil Procedure. Said
section was later amended by Act No. 2645, but the provisions respecting said
formalities found in Act. No. 190 and the amendment thereto were practically
reproduced and adopted in the Civil Code.
One view advance the liberal or substantial compliance rule. This was first laid
down in the case of Abangan vs. Abangan, 36 where it was held that the object of
the solemnities surrounding the execution of wills is to close the door against bad
faith and fraud, to avoid substitution of wills and testaments and to guarantee their
truth and authenticity. Therefore, the laws on this subject should be interpreted in
such a way as to attain these primordial ends. Nonetheless, it was also
emphasized that one must not lose sight of the fact that it is not the object of the
law to restrain and curtail the exercise of the right to make a will, hence when an
interpretation already given assures such ends, any other interpretation
whatsoever that adds nothing but demands more requisites entirely unnecessary,
useless and frustrative of the testator's last will, must be disregarded. The
subsequent cases of Avera 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. Mojal, et al. 42 all adhered to this position.
The other view which advocated the rule that statutes which prescribe the
formalities that should be observed in the execution of wills are mandatory in
nature and are to be strictly construed was followed in the subsequent cases
of In the Matter of the Estate of Saguinsin, 43 In re Will of Andrada, 44 Uy Coque
vs. Sioca, 45 In re Estate of Neumark, 46 and Sano vs. Quintana. 47
Gumban vs. Gorecho, et al., 48 provided the Court with the occasion to clarify the
seemingly conflicting decisions in the aforementioned cases. In said case
of Gumban, the attestation clause had failed to state that the witnesses signed the
will and each and every page thereof on the left margin in the presence of the
testator. The will in question was disallowed, with these reasons therefor:
In support of their argument on the assignment of error above-
mentioned, appellants rely on a series of cases of this court
beginning with (I)n the Matter of the (E)state of Saguinsin
([1920], 41 Phil., 875), continuing with 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 Sano vs. Quintana ([1925], 48 Phil., 506).
Appellee counters with the citation of a series of cases
beginning with Abangan vs. Abangan ([1919], 40 Phil., 476),
continuing through Aldaba vs. Roque ([1922], 43 Phil., 378),
and Fernandez vs. Vergel de Dios ([1924], 46 Phil., 922), and
culminating in Nayve vs. Mojal and Aguilar ([1924], 47 Phil.,
152). In its last analysis, our task is to contrast and, if possible,
conciliate the last two decisions cited by opposing counsel,
namely, those of Sano vs. Quintana, supra, and Nayve vs.
Mojal and Aguilar, supra.
In the case of Sano vs. Quintana, supra, it was decided that an
attestation clause which does not recite that the witnesses
signed the will and each and every page thereof on the left
margin in the presence of the testator is defective, and such a
defect annuls the will. The case of Uy Coque vs. Sioca, supra,
was cited, but the case of Nayve vs. Mojal and Aguilar, supra,
was not mentioned. In contrast, is the decision in Nayve vs.
Mojal and Aguilar, supra, wherein it was held that the
attestation clause must estate the fact that the testator and the
witnesses reciprocally saw the signing of the will, for such an
Page 35 of 62
act cannot be 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 and every page of the will can
be proved also by the mere examination of the signatures
appearing on the document itself, and the omission to state
such evident facts does not invalidate the will.
It is a habit of courts to reaffirm or distinguish previous cases;
seldom do they admit inconsistency in doctrine. Yet here,
unless aided 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.
In resolving this puzzling question of authority, three
outstanding points may be mentioned. In the first place, the
Mojal, decision was concurred in by only four members of the
court, less than a majority, with two strong dissenting opinions;
the Quintana decision was concurred in by seven members of
the court, a clear majority, with one formal dissent. In the
second place, the Mojal decision was promulgated in
December, 1924, while the Quintana decision was promulgated
in December, 1925; the Quintana decision was thus
subsequent in point of time. And in the third place, the
Quintana decision is believed more nearly to conform to the
applicable provisions of the law.
The right to dispose of property by will is governed entirely by
statute. The law of the case is here found in section 61 of the
Code of Civil Procedure as amended by Act No. 2645, and in
section 634 of the same Code, as unamended. It is in part
provided in section 61, as amended that "No will . . . shall be
valid . . . unless . . .." It is further provided in the same section
that "The attestation shall state the number of sheets or pages
used, upon which the will is written, and the fact that the
testator signed the will and every page thereof, or caused
some other person to write his name, under his express
direction, in the presence of three witnesses, and the latter
witnessed and signed the will and all pages thereof in the
presence of the testator and of each other." Codal section 634
provides that "The will shall be disallowed in either of the
following case: 1. If not executed and attested as in this Act
provided." The law not alone carefully makes use of the
imperative, but cautiously goes further and makes use of the
negative, to enforce legislative intention. It is not within the
province of the courts to disregard the legislative purpose so
emphatically and clearly expressed.
We adopt and reaffirm the decision in the case of Sano vs.
Quintana, supra, and, to the extent necessary, modify the
decision in the case of Nayve vs. Mojal and Aguilar, supra.
(Emphases in the original text).
But after the Gumban clarificatory pronouncement, there were decisions of the
Court that once more appeared to revive the seeming 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 as restated in Gumban. But De Gala vs. Gonzales, et al., 53 Rey
vs. Cartagena, 54 De Ticson vs. De Gorostiza, 55 Sebastian vs.
Panganiban, 56 Rodriguez vs. Yap, 57 Grey vs. Fabia, 58 Leynez vs. Leynez, 59 Martir
vs. Martir, 60 Alcala vs. De Villa, 61Sabado vs.
Fernandez, 62 Mendoza vs. Pilapil, 63 and Lopez vs. Liboro, 64 veered away from the
strict interpretation rule and established a trend toward an application of the liberal
view.
The Code Commission, cognizant of such a conflicting welter of views and of
the undeniable inclination towards a liberal construction, recommended the
codification of the substantial compliance rule, as it believed this rule to be in
accord with the modern tendency to give a liberal approach to the
interpretation of wills. Said rule thus became what is now Article 809 of the
Civil Code, with this explanation of the Code Commission:
The present law provides for only one form of executing a will,
and that is, in accordance with the formalities prescribed by
Section 618 of the Code of Civil Procedure as amended by Act
No. 2645. The Supreme Court of the Philippines had previously
upheld the strict compliance with the legal formalities and had
even said that the provisions of Section 618 of the Code of Civil
Procedure, as amended regarding the contents of the
attestation clause were mandatory, and non-compliance
therewith invalidated the will (Uy Coque vs. Sioca, 43 Phil.
405). These decisions necessarily restrained the freedom of
the testator in disposing of his property.
Page 36 of 62
 However, in recent years the Supreme Court changed its
attitude and has become more liberal in the interpretation of the
formalities in the execution of wills. This liberal view is
enunciated in the cases of Rodriguez vs. Yap, G.R. No. 45924,
May 18, 1939; Leynez vs. Leynez, G.R. No. 46097, October
18, 1939; Martir vs. Martir, G.R. No. 46995, June 21, 1940;
and Alcala vs. Villa, G.R. No. 47351, April 18, 1941.
In the above mentioned decisions of our Supreme Court, it has
practically gone back to the original provisions of Section 618
of the Code of Civil Procedure before its amendment by Act
No. 2645 in the year 1916. To turn this attitude into a legislative
declaration and to attain the main objective of the proposed
Code in the liberalization of the manner of executing wills,
article 829 of the Project is recommended, which reads:
"Art. 829. In the absence of bad faith, forgery,
or fraud, or undue and improper pressure and
influence, defects and imperfections in the form
of attestation or in the language used therein
shall not render the will invalid if it is proved that
the will was in fact executed and attested in
substantial compliance with all the
requirements of article 829." 65
The so-called liberal rule, the Court said in Gil vs. Murciano, 66 "does not offer
any puzzle or difficulty, nor does it open the door to serious consequences. The
later decisions do tell us when and where to stop; they draw the dividing line with
precision. They do not allow evidence aliunde to fill a void in any part of the
document or supply missing details that should appear in the will itself. They only
permit a probe into the will, an exploration into its confines, to ascertain its
meaning or to determine the existence or absence of the requisite formalities of
law. This clear, sharp limitation eliminates uncertainty and ought to banish any fear
of dire results."
It may thus be stated that the rule, as it now stands, is that omissions which
can be supplied by an examination of the will itself, without the need of
resorting to extrinsic evidence, will not be fatal and, correspondingly, would not
obstruct the allowance to probate of the will being assailed. However, those
omissions which cannot be supplied except by evidence aliunde would result
in the invalidation of the attestation clause and ultimately, of the will itself. 67
WHEREFORE, the petition is hereby GRANTED and the impugned decision of
respondent court is hereby REVERSED and SET ASIDE. The court a quo is
accordingly directed to forthwith DISMISS its Special Proceeding No. 3899-R
(Petition for the Probate of the Last Will and Testament of Mateo Caballero)
and to REVIVE Special Proceeding No. 3965-R (In the matter of the Intestate
Estate of Mateo Caballero) as an active case and thereafter duly proceed with
the settlement of the estate of the said decedent.
SO ORDERED.
G.R. No. L-12190 August 30, 1958
TESTATE ESTATE OF FELICIDAD ESGUERRA ALTO-YAP deceased.
FAUSTO E. GAN, petitioner-appellant,
vs.
ILDEFONSO YAP, oppositor-appellee.
Benedicto C. Belran, Crispin D. Baizas and Roberto H. Benitez for appellant.
Arturo M. Tolentino for appellee.
BENGZON, J.:
On November 20, 1951, Felicidad Esguerra Alto Yap died of heart failure in the
University of Santo Tomas Hospital, leaving properties in Pulilan, Bulacan, and
in the City of Manila.
On March 17, 1952, Fausto E. Gan initiated them proceedings in the Manila
court of first instance with a petition for the probate of a holographic will
allegedly executed by the deceased, substantially in these words:
Nobyembre 5, 1951.
Page 37 of 62
Ako, si Felicidad E. Alto-Yap, may asawa, at ganap na pag-iisip, ay
nagsasalaysay na ang aking kayamanan sa bayan ng Pulilan, Bulacan
ay aking ipinamamana sa aking mga kamag-anakang sumusunod:
Vicente Esguerra, 5 Bahagi
Sr. .............................................
Fausto E. 2 Bahagi
Gan .........................................................
Rosario E. 2 Bahagi
Gan .........................................................
Filomena 1 Bahagi
Alto ..........................................................
Beatriz 1 Bahagi
Alto ..............................................................
At ang aking lahat ng ibang kayamanan sa Maynila at iba panglugar ay
aking ipinamamana sa aking asawang si Idelfonso D. Yap sa
kondisyong siya'y magpapagawa ng isang Health Center na
nagkakahalaga ng di kukulangin sa halagang P60,000.00 sa bayan ng
Pulilan, Bulacan, na nakaukit ang aking pangalang Felicidad Esguerra-
Alto. At kung ito ay may kakulangan man ay bahala na ang aking
asawa ang magpuno upang matupad ang aking kagustuhan.
(Lagda) Felicidad E. Alto-Yap.
Opposing the petition, her surviving husband Ildefonso Yap asserted that the
deceased had not left any will, nor executed any testament during her lifetime.
After hearing the parties and considering their evidence, the Hon. Ramon R.
San Jose, Judge,1 refused to probate the alleged will. A seventy-page motion
for reconsideration failed. Hence this appeal.
The will itself was not presented. Petitioner tried to establish its contents and
due execution by the statements in open court of Felina Esguerra, Primitivo
Reyes, Socorro Olarte and Rosario Gan Jimenez, whose testimonies may be
summarized as follows:
Sometime in 1950 after her last trip abroad, Felicidad Esguerra mentioned to
her first cousin, Vicente Esguerra, her desire to make a will. She confided
however that it would be useless if her husband discovered or knew about it.
Vicente consulted with Fausto E. Gan, nephew of Felicidad, who was then
preparing for the bar examinations. The latter replied it could be done without
any witness, provided the document was entirely in her handwriting, signed
and dated by her. Vicente Esguerra lost no time in transmitting the information,
and on the strength of it, in the morning of November 5, 1951, in her residence
at Juan Luna Street, Manila, Felicidad wrote, signed and dated a holographic
will substantially of the tenor above transcribed, in the presence of her niece,
Felina Esguerra (daughter of Vicente), who was invited to read it. In the
afternoon of that day, Felicidad was visited by a distant relative, Primitivo
Reyes, and she allowed him to read the will in the presence of Felina
Esguerra, who again read it.
Nine days later, he had other visitors: Socorro Olarte a cousin, and Rosario
Gan Jimenez, a niece. To these she showed the will, again in the presence of
Felina Esguerra, who read it for the third time.
When on November 19, 1951, Felicidad was confined at the U.S.T. Hospital for
her last illness, she entrusted the said will, which was contained in a purse, to
Felina Esguerra. But a few hours later, Ildefonso Yap, her husband, asked
Felina for the purse: and being afraid of him by reason of his well-known
violent temper, she delivered it to him. Thereafter, in the same day, Ildefonso
Yap returned the purse to Felina, only to demand it the next day shortly before
the death of Felicidad. Again, Felina handed it to him but not before she had
taken the purse to the toilet, opened it and read the will for the last time. 2
Page 38 of 62
From the oppositor's proof it appears that Felicidad Esguerra had been
suffering from heart disease for several years before her death; that she had
been treated by prominent physicians, Dr. Agerico Sison, Dr. Agustin Liboro
and others; that in May 1950 husband and wife journeyed to the United States
wherein for several weeks she was treated for the disease; that thereafter she
felt well and after visiting interesting places, the couple returned to this country
in August 1950. However, her ailment recurred, she suffered several attacks,
the most serious of which happened in the early morning of the first Monday of
November 1951 (Nov. 5). The whole household was surprised and alarmed,
even the teachers of the Harvardian Colleges occupying the lower floors and
of by the Yap spouses. Physician's help was hurriedly called, and Dr.
Tanjuaquio arrived at about 8:00 a.m., found the patient hardly breathing, lying
in bed, her head held high by her husband. Injections and oxygen were
administered. Following the doctor's advice the patient stayed in bed, and did
nothing the whole day, her husband and her personal attendant, Mrs.
Bantique, constantly at her side. These two persons swore that Mrs. Felicidad
Esguerra Yap made no will, and could have made no will on that day.
The trial judge refused to credit the petitioner's evidence for several reasons,
the most important of which were these: (a) if according to his evidence, the
decedent wanted to keep her will a secret, so that her husband would not
know it, it is strange she executed it in the presence of Felina Esguerra,
knowing as she did that witnesses were unnecessary; (b) in the absence of a
showing that Felina was a confidant of the decedent it is hard to believe that
the latter would have allowed the former to see and read the will several times;
(c) it is improbable that the decedent would have permitted Primitivo Reyes,
Rosario Gan Jimenez and Socorro Olarte to read her will, when she precisely
wanted its contents to remain a secret during her lifetime; (d) it is also
improbable that her purpose being to conceal the will from her husband she
would carry it around, even to the hospital, in her purse which could for one
reason or another be opened by her husband; (e) if it is true that the husband
demanded the purse from Felina in the U.S.T. Hospital and that the will was
there, it is hard to believe that he returned it without destroying the will, the
theory of the petitioner being precisely that the will was executed behind his
back for fear he will destroy it.
In the face of these improbabilities, the trial judge had to accept the oppositor's
evidence that Felicidad did not and could not have executed such holographic
will.
In this appeal, the major portion of appellant's brief discussed the testimony of
the oppositor and of his witnesses in a vigorous effort to discredit them. It
appears that the same arguments, or most of them, were presented in the
motion to reconsider; but they failed to induce the court a quo to change its
mind. The oppositor's brief, on the other hand, aptly answers the criticisms. We
deem it unnecessary to go over the same matters, because in our opinion the
case should be decided not on the weakness of the opposition but on the
strength of the evidence of the petitioner, who has the burden of proof.
The Spanish Civil Code permitted the execution of holographic wills along with
other forms. The Code of Civil Procedure (Act 190) approved August 7, 1901,
adopted only one form, thereby repealing the other forms, including
holographic wills.
The New Civil Code effective in 1950 revived holographic wills in its arts. 810-
814. "A person may execute a holographic will which must be entirely written,
dated, and signed by the hand of the testator himself. It is subject to no other
form and may be made in or out of the Philippines, and need not be
witnessed."
This is indeed a radical departure from the form and solemnities provided for
wills under Act 190, which for fifty years (from 1901 to 1950) required wills to
be subscribed by the testator and three credible witnesses in each and every
page; such witnesses to attest to the number of sheets used and to the fact
that the testator signed in their presence and that they signed in the presence
of the testator and of each other.
The object of such requirements it has been said, is to close the door against
bad faith and fraud, to prevent substitution of wills, to guarantee their truth and
authencity (Abangan vs. Abangan, 40 Phil., 476) and to avoid those who have
no right to succeed the testator would succeed him and be benefited with the
probate of same. (Mendoza vs. Pilapil, 40 Off. Gaz., 1855). However, formal
imperfections may be brushed aside when authenticity of the instrument is duly
proved. (Rodriguez vs Yap, 40 Off. Gaz. 1st Supp. No. 3 p. 194.)
Authenticity and due execution is the dominant requirements to be fulfilled
when such will is submitted to the courts for allowance. For that purpose the
testimony of one of the subscribing witnesses would be sufficient if there is no
opposition (Sec. 5, Rule 77). If there is, the three must testify, if available.
(Cabang vs. Delfinado, 34 Phil., 291; Tolentino vs. Francisco, 57 Phil., 742).
From the testimony of such witnesses (and of other additional witnesses) the
court may form its opinion as to the genuineness and authenticity of the
testament, and the circumstances its due execution.
Page 39 of 62
Now, in the matter of holographic wills, no such guaranties of truth and veracity
are demanded, since as stated, they need no witnesses; provided however,
that they are "entirely written, dated, and signed by the hand of the testator
himself." The law, it is reasonable to suppose, regards the document itself as
material proof of authenticity, and as its own safeguard, since it could at any
time, be demonstrated to be — or not to be — in the hands of the testator
himself. "In the probate of a holographic will" says the New Civil Code, "it shall
be necessary that at least one witness who knows the handwriting and
signature of the testator explicitly declare that the will and the signature are in
the handwriting of the testator. If the will is contested, at least three such
witnesses shall be required. In the absence of any such witnesses, (familiar
with decedent's handwriting) and if the court deem it necessary, expert
testimony may be resorted to."
The witnesses so presented do not need to have seen the execution of the
holographic will. They may be mistaken in their opinion of the handwriting, or
they may deliberately lie in affirming it is in the testator's hand. However, the
oppositor may present other witnesses who also know the testator's
handwriting, or some expert witnesses, who after comparing the will with other
writings or letters of the deceased, have come to the conclusion that such will
has not been written by the hand of the deceased. (Sec. 50, Rule 123). And
the court, in view of such contradictory testimony may use its own visual
sense, and decide in the face of the document, whether the will submitted to it
has indeed been written by the testator.
Obviously, when the will itself is not submitted, these means of opposition,
and of assessing the evidence are not available. And then the only guaranty of
authenticity3 — the testator's handwriting — has disappeared.
Therefore, the question presents itself, may a holographic will be probated
upon the testimony of witnesses who have allegedly seen it and who declare
that it was in the handwriting of the testator? How can the oppositor prove that
such document was not in the testator's handwriting? His witnesses who know
testator's handwriting have not examined it. His experts can not testify,
because there is no way to compare the alleged testament with other
documents admittedly, or proven to be, in the testator's hand. The oppositor
will, therefore, be caught between the upper millstone of his lack of knowledge
of the will or the form thereof, and the nether millstone of his inability to prove
its falsity. Again the proponent's witnesses may be honest and truthful; but they
may have been shown a faked document, and having no interest to check the
authenticity thereof have taken no pains to examine and compare. Or they
may be perjurers boldly testifying, in the knowledge that none could convict
them of perjury, because no one could prove that they have not "been shown"
a document which they believed was in the handwriting of the deceased. Of
course, the competency of such perjured witnesses to testify as to the
handwriting could be tested by exhibiting to them other writings sufficiently
similar to those written by the deceased; but what witness or lawyer would not
foresee such a move and prepare for it? His knowledge of the handwriting
established, the witness (or witnesses) could simply stick to his statement: he
has seen and read a document which he believed was in the deceased's
handwriting. And the court and the oppositor would practically be at the mercy
of such witness (or witnesses) not only as to the execution, but also as to the
contents of the will. Does the law permit such a situation?
The Rules of Court, (Rule 77) approved in 1940 allow proof (and probate) of a
lost or destroyed will by secondary — evidence the testimony of witnesses, in
lieu of the original document. Yet such Rules could not have contemplated
holographic wills which could not then be validly made here. (See also Sec.
46, Rule 123; Art. 830-New Civil Code.)
Could Rule 77 be extended, by analogy, to holographic wills?
Spanish commentators agree that one of the greatest objections to the
holographic will is that it may be lost or stolen4 — an implied admission that
such loss or theft renders it useless..
This must be so, because the Civil Code requires it to be protocoled and
presented to the judge, (Art. 689) who shall subscribe it and require its identity
to be established by the three witnesses who depose that they have no
reasonable doubt that the will was written by the testator (Art. 691). And if the
judge considers that the identity of the will has been proven he shall order that
it be filed (Art. 693). All these, imply presentation of the will itself. Art. 692
bears the same implication, to a greater degree. It requires that the surviving
spouse and the legitimate ascendants and descendants be summoned so that
they may make "any statement they may desire to submit with respect to the
authenticity of the will." As it is universally admitted that the holographic will is
usually done by the testator and by himself alone, to prevent others from
knowing either its execution or its contents, the above article 692 could not
have the idea of simply permitting such relatives to state whether they know of
the will, but whether in the face of the document itself they think the testator
wrote it. Obviously, this they can't do unless the will itself is presented to the
Court and to them.
Page 40 of 62
Undoubtedly, the intention of the law is to give the near relatives the choice of
either complying with the will if they think it authentic, or to oppose it, if they
think it spurious.5 Such purpose is frustrated when the document is not
presented for their examination. If it be argued that such choice is not
essential, because anyway the relatives may oppose, the answer is that their
opposition will be at a distinct disadvantage, and they have the right and
privilege to comply with the will, if genuine, a right which they should not be
denied by withholding inspection thereof from them.
We find confirmation of these ideas--about exhibition of the document itself--in
the decision of the Supreme Court of Spain of June 5, 1925,
which denied protocolization or probate to a document containing testamentary
dispositions in the handwriting of the deceased, but apparently mutilated, the
signature and some words having been torn from it. Even in the face of
allegations and testimonial evidence (which was controverted), ascribing the
mutilation to the opponents of the will. The aforesaid tribunal declared that, in
accordance with the provision of the Civil Code (Spanish) the will itself, whole
and unmutilated, must be presented; otherwise, it shall produce no effect.
Considerando que sentado lo anterior, y estableciendose en el parrafo
segundo del articulo 688 del Codigo civil, que para que sea valido el
testamento olografo debera estar escrito todo el y firmado por testador,
con expression del año, mes y dia en que se otorque, resulta evidente
que para la validez y eficacia de esos testamentos, no basta la
demostracion mas o menos cumplida de que cuando se otorgaron se
Ilenaron todos esos requisitos, sino que de la expresada redaccion el
precepto legal, y por el tiempo en que el verbo se emplea,
se desprende la necesidad de que el documento se encuentre en
dichas condiciones en el momento de ser presentado a la Autoridad
competente, para au adveracion y protocolizacion; y como
consecuencia ineludible de ello, forzoso es affirmar que el de autos
carece de validez y aficacia, por no estarfirmado por el testador,
cualquiera que sea la causa de la falta de firma, y sin perjuicio de las
acciones que puedan ejercitar los perjudicados, bien para pedir
indemnizacion por el perjuicio a la persona culpable, si la hubiere, o su
castigo en via criminal si procediere, por constituir dicha omision un
defecto insubsanable . . . .
This holding aligns with the ideas on holographic wills in the Fuero Juzgo,
admittedly the basis of the Spanish Civil Code provisions on the matter.6
PRECEDENTES LEGALES--Fuero Juzgo, libro segundo, titulo V, ley
15--E depues que los herederos e sus fijos ovieren esta manda,
fasta ... annos muestrenla al obispo de la tierra, o al juez fasta VI
meses y el obispo o el juez tomen otros tales tres escritos, que fuesen
fechos por su mano daquel que fizo la manda; e por aquellos
escriptos, si semjara la letra de la manda, sea confirmada la manda. E
depues que todo esto fuere connoscido, el obispo o el juez, o otras
testimonios confirmen el escripto de la manda otra vez, y en esta
manera vala la manda. (Art. 689, Scaevola--Codigo Civil.)
(According to the Fuero above, the will itself must be compared with
specimens of the testators handwriting.)
All of which can only mean: the courts will not distribute the property of the
deceased in accordance with his holographic will, unless they are shown his
handwriting and signature.7
Parenthetically, it may be added that even the French Civil Law considers the
loss of the holographic will to be fatal. (Planiol y Ripert, Derecho Civil Frances,
traduccion por Diaz Cruz, 1946, Tomo V, page 555).
Taking all the above circumstances together, we reach the conclusion that the
execution and the contents of a lost or destroyed holographic will may not be
proved by the bare testimony of witnesses who have seen and/or read such
will.8
Under the provisions of Art. 838 of the New Civil Code, we are empowered to
adopt this opinion as a Rule of Court for the allowance of such holographic
wills. We hesitate, however, to make this Rule decisive of this controversy,
simultaneously with its promulgation. Anyway, decision of the appeal may rest
on the sufficiency, rather the insufficiency, of the evidence presented by
petitioner Fausto E. Gan.
At this point, before proceeding further, it might be convenient to explain why,
unlike holographic wills, ordinary wills may be proved by testimonial evidence
when lost or destroyed. The difference lies in the nature of the wills. In the first,
the only guarantee of authenticity is the handwriting itself; in the second, the
testimony of the subscribing or instrumental witnesses (and of the notary,
now). The loss of the holographic will entails the loss of the only medium of
proof; if the ordinary will is lost, the subscribing witnesses are available to
authenticate.
Page 41 of 62
In the case of ordinary wills, it is quite hard to convince three witnesses (four
with the notary) deliberately to lie. And then their lies could be checked and
exposed, their whereabouts and acts on the particular day, the likelihood that
they would be called by the testator, their intimacy with the testator, etc. And if
they were intimates or trusted friends of the testator they are not likely to end
themselves to any fraudulent scheme to distort his wishes. Last but not least,
they can not receive anything on account of the will.
Whereas in the case of holographic wills, if oral testimony were
admissible9 only one man could engineer the fraud this way: after making a
clever or passable imitation of the handwriting and signature of the deceased,
he may contrive to let three honest and credible witnesses see and read the
forgery; and the latter, having no interest, could easily fall for it, and in court
they would in all good faith affirm its genuineness and authenticity. The will
having been lost — the forger may have purposely destroyed it in an
"accident" — the oppositors have no way to expose the trick and the error,
because the document itself is not at hand. And considering that the
holographic will may consist of two or three pages, and only one of them need
be signed, the substitution of the unsigned pages, which may be the most
important ones, may go undetected.
If testimonial evidence of holographic wills be permitted, one more
objectionable feature — feasibility of forgery — would be added to the several
objections to this kind of wills listed by Castan, Sanchez Roman and Valverde
and other well-known Spanish Commentators and teachers of Civil Law. 10
One more fundamental difference: in the case of a lost will, the three
subscribing witnesses would be testifying to a fact which they saw, namely the
act of the testator of subscribing the will; whereas in the case of a lost
holographic will, the witnesses would testify as to their opinion of the
handwriting which they allegedly saw, an opinion which can not be tested in
court, nor directly contradicted by the oppositors, because the handwriting
itself is not at hand.
Turning now to the evidence presented by the petitioner, we find ourselves
sharing the trial judge's disbelief. In addition to the dubious circumstances
described in the appealed decision, we find it hard to believe that the
deceased should show her will precisely to relatives who had received nothing
from it: Socorro Olarte and Primitivo Reyes. These could pester her into
amending her will to give them a share, or threaten to reveal its execution to
her husband Ildefonso Yap. And this leads to another point: if she wanted so
much to conceal the will from her husband, why did she not entrust it to her
beneficiaries? Opportunity to do so was not lacking: for instance, her
husband's trip to Davao, a few days after the alleged execution of the will.
In fine, even if oral testimony were admissible to establish and probate a lost
holographic will, we think the evidence submitted by herein petitioner is so
tainted with improbabilities and inconsistencies that it fails to measure up to
that "clear and distinct" proof required by Rule 77, sec. 6. 11
Wherefore, the rejection of the alleged will must be sustained.
Judgment affirmed, with costs against petitioner.
G.R. No. L-58509 December 7, 1982
IN THE MATTER OF THE PETITION TO APPROVE THE WILL OF RICARDO
B. BONILLA deceased, MARCELA RODELAS, petitioner-appellant,
vs.
AMPARO ARANZA, ET AL., oppositors-appellees, ATTY. LORENZO
SUMULONG, intervenor.
Luciano A. Joson for petitioner-appellant.
Cesar Paralejo for oppositor-appellee.
RELOVA, J.:
This case was certified to this Tribunal by the Court of Appeals for final
determination pursuant to Section 3, Rule 50 of the Rules of Court.
As found by the Court of Appeals:
... On January 11, 1977, appellant filed a petition with the Court
of First Instance of Rizal for the probate of the holographic will
of Ricardo B. Bonilla and the issuance of letters testamentary
in her favor. The petition, docketed as Sp. Proc. No. 8432, was
opposed by the appellees Amparo Aranza Bonilla, Wilferine
Page 42 of 62
Bonilla Treyes Expedita Bonilla Frias and Ephraim Bonilla on
the following grounds:
(1) Appellant was estopped from claiming that the deceased
left a will by failing to produce the will within twenty days of the
death of the testator as required by Rule 75, section 2 of the
Rules of Court;
(2) The alleged copy of the alleged holographic will did not
contain a disposition of property after death and was not
intended to take effect after death, and therefore it was not a
will
(3) The alleged hollographic will itself,and not an alleged copy
thereof, must be produced, otherwise it would produce no
effect, as held in Gam v. Yap, 104 Phil. 509; and
(4 ) The deceased did not leave any will, holographic or
otherwise, executed and attested as required by law.
The appellees likewise moved for the consolidation of the case
with another case Sp. Proc. No, 8275). Their motion was
granted by the court in an order dated April 4, 1977.
On November 13, 1978, following the consolidation of the
cases, the appellees moved again to dismiss the petition for
the probate of the will. They argued that:
(1) The alleged holographic was not a last will but merely an
instruction as to the management and improvement of the
schools and colleges founded by decedent Ricardo B. Bonilla;
and
(2) Lost or destroyed holographic wills cannot be proved by
secondary evidence unlike ordinary wills.
Upon opposition of the appellant, the motion to dismiss was
denied by the court in its order of February 23, 1979.
The appellees then filed a motion for reconsideration on the
ground that the order was contrary to law and settled
pronouncements and rulings of the Supreme Court, to which
the appellant in turn filed an opposition. On July 23, 1979, the
court set aside its order of February 23, 1979 and dismissed
the petition for the probate of the will of Ricardo B. Bonilla. The
court said:
... It is our considered opinion that once the original copy of the
holographic will is lost, a copy thereof cannot stand in lieu of
the original.
In the case of Gam vs. Yap, 104 Phil. 509, 522, the Supreme
Court held that 'in the matter of holographic wills the law, it is
reasonable to suppose, regards the document itself as the
material proof of authenticity of said wills.
MOREOVER, this Court notes that the alleged holographic will
was executed on January 25, 1962 while Ricardo B. Bonilla
died on May 13, 1976. In view of the lapse of more than 14
years from the time of the execution of the will to the death of
the decedent, the fact that the original of the will could not be
located shows to our mind that the decedent had discarded
before his death his allegedly missing Holographic Will.
Appellant's motion for reconsideration was denied. Hence, an appeal to the
Court of Appeals in which it is contended that the dismissal of appellant's
petition is contrary to law and well-settled jurisprudence.
On July 7, 1980, appellees moved to forward the case to this Court on the
ground that the appeal does not involve question of fact and alleged that the
trial court committed the following assigned errors:
I. THE LOWER COURT ERRED IN HOLDING THAT A LOST
HOLOGRAPHIC WILL MAY NOT BE PROVED BY A COPY
THEREOF;
II. THE LOWER COURT ERRED IN HOLDING THAT THE
DECEDENT HAS DISCARDED BEFORE HIS DEATH THE
MISSING HOLOGRAPHIC WILL;
III. THE LOWER COURT ERRED IN DISMISSING
APPELLANT'S WILL.
Page 43 of 62
The only question here is whether a holographic will which was lost or cannot
be found can be proved by means of a photostatic copy. Pursuant to Article
811 of the Civil Code, probate of holographic wills is the allowance of the will
by the court after its due execution has been proved. The probate may be
uncontested or not. If uncontested, at least one Identifying witness is required
and, if no witness is available, experts may be resorted to. If contested, at least
three Identifying witnesses are required. However, if the holographic will has
been lost or destroyed and no other copy is available, the will can not be
probated because the best and only evidence is the handwriting of the testator
in said will. It is necessary that there be a comparison between sample
handwritten statements of the testator and the handwritten will. But, a
photostatic copy or xerox copy of the holographic will may be allowed because
comparison can be made with the standard writings of the testator. In the case
of Gam vs. Yap, 104 PHIL. 509, the Court ruled that "the execution and the
contents of a lost or destroyed holographic will may not be proved by the bare
testimony of witnesses who have seen and/or read such will. The will itself
must be presented; otherwise, it shall produce no effect. The law regards the
document itself as material proof of authenticity." But, in Footnote 8 of said
decision, it says that "Perhaps it may be proved by a photographic or
photostatic copy. Even a mimeographed or carbon copy; or by other similar
means, if any, whereby the authenticity of the handwriting of the deceased
may be exhibited and tested before the probate court," Evidently, the
photostatic or xerox copy of the lost or destroyed holographic will may be
admitted because then the authenticity of the handwriting of the deceased can
be determined by the probate court.
WHEREFORE, the order of the lower court dated October 3, 1979, denying
appellant's motion for reconsideration dated August 9, 1979, of the Order
dated July 23, 1979, dismissing her petition to approve the will of the late
Ricardo B. Bonilla, is hereby SET ASIDE.
SO ORDERED.
G.R. Nos. 83843-44 April 5, 1990
IN THE MATTER OF THE PETITION TO APPROVE THE WILL OF MELECIO
LABRADOR. SAGRADO LABRADOR (Deceased), substituted by ROSITA
LABRADOR, ENRICA LABRADOR, and CRISTOBAL
LABRADOR, petitioners-appellants,
vs.
COURT OF APPEALS, GAUDENCIO LABRADOR, and JESUS
1
LABRADOR, respondents-appellees.
Benjamin C. Santos Law Offices for petitioners.
Rodrigo V. Fontelera for private respondents.
PARAS, J.:
The sole issue in this case is whether or not the alleged holographic will of one
Melecio Labrador is dated, as provided for in Article 810 of the New Civil
2
Code.
The antecedent and relevant facts are as follows: On June 10, 1972, Melecio
Labrador died in the Municipality of Iba, province of Zambales, where he was
residing, leaving behind a parcel of land designated as Lot No. 1916 under
Original Certificate of Title No. P-1652, and the following heirs, namely:
Sagrado, Enrica, Cristobal, Jesus, Gaudencio, Josefina, Juliana, Hilaria and
Jovita, all surnamed Labrador, and a holographic will.
On July 28, 1975, Sagrado Labrador (now deceased but substituted by his
heirs), Enrica Labrador and Cristobal Labrador, filed in the court a quo a
petition for the probate docketed as Special Proceeding No. 922-I of the
alleged holographic will of the late Melecio Labrador.
Subsequently, on September 30, 1975, Jesus Labrador (now deceased but
substituted by his heirs), and Gaudencio Labrador filed an opposition to the
petition on the ground that the will has been extinguished or revoked by
implication of law, alleging therein that on September 30, 1971, that is, before
Melecio's death, for the consideration of Six Thousand (P6,000) Pesos,
testator Melecio executed a Deed of Absolute Sale, selling, transferring and
conveying in favor of oppositors Jesus and Gaudencio Lot No. 1916 and that
as a matter of fact, O.C.T. No. P-1652 had been cancelled by T.C.T. No. T-
21178. Earlier however, in 1973, Jesus Labrador sold said parcel of land to
Navat for only Five Thousand (P5,000) Pesos. (Rollo, p. 37)
Sagrado thereupon filed, on November 28, 1975, against his brothers,
Gaudencio and Jesus, for the annulment of said purported Deed of Absolute
Sale over a parcel of land which Sagrado allegedly had already acquired by
devise from their father Melecio Labrador under a holographic will executed on
March 17, 1968, the complaint for annulment docketed as Civil Case No. 934-
Page 44 of 62
I, being premised on the fact that the aforesaid Deed of Absolute Sale is
fictitious.
After both parties had rested and submitted their respective evidence, the trial
court rendered a joint decision dated February 28, 1985, allowing the probate
of the holographic will and declaring null and void the Deed of Absolute sale.
The court a quo had also directed the respondents (the defendants in Civil
Case No. 934-I) to reimburse to the petitioners the sum of P5,000.00
representing the redemption price for the property paid by the plaintiff-
petitioner Sagrado with legal interest thereon from December 20, 1976, when it
was paid to vendee a retro.
Respondents appealed the joint decision to the Court of Appeals, which on
March 10, 1988 modified said joint decision of the court a quo by denying the
allowance of the probate of the will for being undated and reversing the order
of reimbursement. Petitioners' Motion for Reconsideration of the aforesaid
decision was denied by the Court of Appeals, in the resolution of June 13,
1988. Hence, this petition.
Petitioners now assign the following errors committed by respondent court, to
wit:
I
THE COURT OF APPEALS ERRED IN NOT ALLOWING AND
APPROVING THE PROBATE OF THE HOLOGRAPHIC WILL OF THE
TESTATOR MELECIO LABRADOR; and
II
THE COURT OF APPEALS ERRED IN FINDING THAT THE ORDER
OF THE LOWER COURT DIRECTING THE REIMBURSEMENT OF
THE FIVE THOUSAND PESOS REPRESENTING THE REDEMPTION
PRICE WAS ERRONEOUS.
The alleged undated holographic will written in Ilocano translated into English,
is quoted as follows:
ENGLISH INTERPRETATION OF THE WILL OF THE
LATE MELECIO LABRADOR WRITTEN IN ILOCANO
BY ATTY. FIDENCIO L. FERNANDEZ
I — First Page
This is also where it appears in writing of the place which is assigned
and shared or the partition in favor of SAGRADO LABRADOR which is
the fishpond located and known place as Tagale.
And this place that is given as the share to him, there is a
measurement of more or less one hectare, and the boundary at the
South is the property and assignment share of ENRICA LABRADOR,
also their sister, and the boundary in the West is the sea, known as the
SEA as it is, and the boundary on the NORTH is assignment belonging
to CRISTOBAL LABRADOR, who likewise is also their brother. That
because it is now the time for me being now ninety three (93) years,
then I feel it is the right time for me to partition the fishponds which
were and had been bought or acquired by us, meaning with their two
mothers, hence there shall be no differences among themselves, those
among brothers and sisters, for it is I myself their father who am
making the apportionment and delivering to each and everyone of
them the said portion and assignment so that there shall not be any
cause of troubles or differences among the brothers and sisters.
II — Second Page
And this is the day in which we agreed that we are making the
partitioning and assigning the respective assignment of the said
fishpond, and this being in the month of March, 17th day, in the year
1968, and this decision and or instruction of mine is the matter to be
followed. And the one who made this writing is no other than MELECIO
LABRADOR, their father.
Now, this is the final disposition that I am making in writing and it is this
that should be followed and complied with in order that any differences
or troubles may be forestalled and nothing will happen along these
troubles among my children, and that they will be in good relations
among themselves, brothers and sisters;
And those improvements and fruits of the land; mangoes, bamboos
and all coconut trees and all others like the other kind of bamboo by
name of Bayog, it is their right to get if they so need, in order that there
shall be nothing that anyone of them shall complain against the other,
and against anyone of the brothers and sisters.
Page 45 of 62
 III — THIRD PAGE
And that referring to the other places of property, where the said
property is located, the same being the fruits of our earnings of the two
mothers of my children, there shall be equal portion of each share
among themselves, and or to be benefitted with all those property,
which property we have been able to acquire.
That in order that there shall be basis of the truth of this writing (WILL)
which I am here hereof manifesting of the truth and of the fruits of our
labor which their two mothers, I am signing my signature below hereof,
and that this is what should be complied with, by all the brothers and
sisters, the children of their two mothers — JULIANA QUINTERO
PILARISA and CASIANA AQUINO VILLANUEVA Your father who made
this writing (WILL), and he is, MELECIO LABRADOR y RALUTIN (p.
46, Rollo)
The petition, which principally alleges that the holographic will is really dated,
although the date is not in its usual place, is impressed with merit.
The will has been dated in the hand of the testator himself in perfect
compliance with Article 810. It is worthy of note to quote the first paragraph of
1âwphi1
the second page of the holographic will, viz:
And this is the day in which we agreed that we are making the
partitioning and assigning the respective assignment of the said
fishpond, and this being in the month of March, 17th day, in the year
1968, and this decision and or instruction of mine is the matter to be
followed. And the one who made this writing is no other than MELECIO
LABRADOR, their father. (emphasis supplied) (p. 46, Rollo)
The law does not specify a particular location where the date should be placed
in the will. The only requirements are that the date be in the will itself and
executed in the hand of the testator. These requirements are present in the
subject will.
Respondents claim that the date 17 March 1968 in the will was when the
testator and his beneficiaries entered into an agreement among themselves
about "the partitioning and assigning the respective assignments of the said
fishpond," and was not the date of execution of the holographic will; hence, the
will is more of an "agreement" between the testator and the beneficiaries
thereof to the prejudice of other compulsory heirs like the respondents. This
was thus a failure to comply with Article 783 which defines a will as "an act
whereby a person is permitted, with the formalities prescribed by law, to control
to a certain degree the disposition of his estate, to take effect after his death."
Respondents are in error. The intention to show 17 March 1968 as the date of
the execution of the will is plain from the tenor of the succeeding words of the
paragraph. As aptly put by petitioner, the will was not an agreement but a
unilateral act of Melecio Labrador who plainly knew that what he was
executing was a will. The act of partitioning and the declaration that such
partitioning as the testator's instruction or decision to be followed reveal that
Melecio Labrador was fully aware of the nature of the estate property to be
disposed of and of the character of the testamentary act as a means to control
the disposition of his estate.
Anent the second issue of finding the reimbursement of the P5,000
representing the redemption price as erroneous, respondent court's conclusion
is incorrect. When private respondents sold the property (fishpond) with right to
repurchase to Navat for P5,000, they were actually selling property belonging
to another and which they had no authority to sell, rendering such sale null and
void. Petitioners, thus "redeemed" the property from Navat for P5,000, to
immediately regain possession of the property for its disposition in accordance
with the will. Petitioners therefore deserve to be reimbursed the P5,000.
PREMISES CONSIDERED, the decision of the Court of Appeals dated March
10, 1988 is hereby REVERSED. The holographic will of Melecio Labrador is
APPROVED and ALLOWED probate. The private respondents are directed to
REIMBURSE the petitioners the sum of Five Thousand Pesos (P5,000.00).
SO ORDERED.
G.R. No. L-14003 August 5, 1960
FEDERICO AZAOLA, petitioner-appellant,
vs.
CESARIO SINGSON, oppositor-appellee.
F. Lavides and L.B. Alcuaz for appellant.
Vicente J. Cuna and P.S. Singson for appellee.
Page 46 of 62
REYES, J.B.L., J.:
This appeal, taken on points of law from a decision rendered on 15 January
1958 by the Court of First Instance of Quezon City in its Special Proceedings
No. Q-2640, involves the determination of the quantity of evidence required for
the probate of a holographic will.
The established facts are thus summarized in the decision appealed from
(Rec. App. pp. 22-24):
"Briefly speaking, the following facts were established by the petitioner;
that on September 9, 1957, Fortunata S. Vda. de Yance died at 13
Luskot, Quezon City, known to be the last residence of said testatrix;
that Francisco Azaola, petitioner herein for probate of the holographic
will, submitted the said holographic will (Exh. C) whereby Maria
Milagros Azaola was made the sole heir as against the nephew of
deceased Cesario Singson; that witness Francisco Azaola testified that
he saw the holographic will (Exh. C) one month, more or less, before
the death of the testatrix, as the same was handed to him and his wife;
that the witness testified also that he recognized all the signatures
appearing in the holographic will (Exh. C) as the handwriting of the
testatrix and to reinforce said statement, witness presented the
mortgage (Exh. E), the special power of the attorney (Exh. F), and the
general power of attorney (Exh. F-1), besides the deeds of sale (Exhs.
G and G-1) including an affidavit (Exh. G-2), and that there were
further exhibited in court two residence certificates (Exhs. H and H-1)
to show the signatures of the testatrix, for comparison purposes; that
said witness, Azaola, testified that the penmanship appearing in the
aforesaid documentary evidence is in the handwriting of the testatrix as
well as the signatures appearing in the aforesaid documentary
evidence is in the handwriting of the testatrix as well as the signatures
appearing therein are the signatures of the testatrix; that said witness,
in answer to a question of his counsel admitted that the holographic
will was handed to him by the testatrix. "apparently it must have been
written by her" (t.s.n., p. 11). However, on page 16 on the same
transcript of the stenographic notes, when the same witness was
asked by counsel if he was familiar with the penmanship and
handwriting of the deceased Fortunata Vda. de Yance, he answered
positively in the affirmative and when he was asked again whether the
penmanship referred to in the previous answer as appearing in the
holographic will (Exh. C) was hers (testatrix'), he answered, "I would
definitely say it is hers"; that it was also established in the proceedings
that the assessed value of the property of the deceased in Luskot,
Quezon City, is in the amount of P7,000.00.
The opposition to the probate was on the ground that (1) the execution of the
will was procured by undue and improper pressure and influence on the part of
the petitioner and his wife, and (2) that the testatrix did not seriously intend the
instrument to be her last will, and that the same was actually written either on
the 5th or 6th day of August 1957 and not on November 20, 1956 as appears
on the will.
The probate was denied on the ground that under Article 811 of the Civil Code,
the proponent must present three witnesses who could declare that the will
and the signature are in the writing of the testatrix, the probate being
contested; and because the lone witness presented by the proponent "did not
prove sufficiently that the body of the will was written in the handwriting of the
testatrix."
The proponent appealed, urging: first, that he was not bound to produce more
than one witness because the will's authenticity was not questioned; and
second, that Article 811 does not mandatorily require the production of three
witnesses to identify the handwriting and signature of a holographic will, even if
its authenticity should be denied by the adverse party.
Article 811 of the Civil Code of the Philippines is to the following effect:
ART. 811. In the probate of a holographic will, it shall be necessary that
at least one witness who knows the handwriting and signature of the
testator explicitly declare that the will and the signature are in the
handwriting of the testator. If the will is contested, at least three of such
witnesses shall be required.
In the absence of any competent witnesses referred to in the preceding
paragraph, and if the court deems it necessary, expert testimony may
be resorted to. (691a).
We agree with the appellant that since the authenticity of the will was not
contested, he was not required to produce more than one witness; but even if
the genuineness of the holographic will were contested, we are of the opinion
that Article 811 of our present Civil Code can not be interpreted as to require
the compulsory presentation of three witnesses to identify the handwriting of
the testator, under penalty of having the probate denied. Since no witness may
Page 47 of 62
have been present at the execution of a holographic will, none being required
by law (Art. 810, new Civil Code), it becomes obvious that the existence of
witness possessing the requisite qualifications is a matter beyond the control
of the proponent. For it is not merely a question of finding and producing any
three witnesses; they must be witnesses "who know the handwriting and
signature of the testator" and who can declare (truthfully, of course, even if the
law does not so express) "that the will and the signature are in the handwriting
of the testator". There may be no available witness of the testator's hand; or
even if so familiarized, the witnesses may be unwilling to give a positive
opinion. Compliance with the rule of paragraph 1 of Article 811 may thus
become an impossibility. That is evidently the reason why the second
paragraph of Article 811 prescribes that —
in the absence of any competent witness referred to in the preceding
paragraph, and if the court deems it necessary, expert testimony may
be resorted to.
As can be seen, the law foresees the possibility that no qualified witness may
be found (or what amounts to the same thing, that no competent witness may
be willing to testify to the authenticity of the will), and provides for resort to
expert evidence to supply the deficiency.
It may be true that the rule of this article (requiring that three witnesses be
presented if the will is contested and only one if no contest is had) was derived
from the rule established for ordinary testaments (cf. Cabang vs. Delfinado, 45
Phil., 291; Tolentino vs. Francisco, 57 Phil., 742). But it can not be ignored that
the requirement can be considered mandatory only in the case of ordinary
testaments, precisely because the presence of at least three witnesses at the
execution of ordinary wills is made by law essential to their validity (Art. 805).
Where the will is holographic, no witness need be present (Art. 10), and the
rule requiring production of three witnesses must be deemed merely
permissive if absurd results are to be avoided.
Again, under Article 811, the resort to expert evidence is conditioned by the
words "if the Court deem it necessary", which reveal that what the law deems
essential is that the Court should be convinced of the will's authenticity. Where
the prescribed number of witnesses is produced and the court is convinced by
their testimony that the ill is genuine, it may consider it unnecessary to call for
expert evidence. On the other hand, if no competent witness is available, or
none of those produced is convincing, the Court may still, and in fact it should,
resort to handwriting experts. The duty of the Court, in fine, is to exhaust all
available lines of inquiry, for the state is as much interested as the proponent
that the true intention of the testator be carried into effect.
Commenting on analogous provisions of Article 691 of the Spanish Civil Code
of 1889, the noted Commentator, Mucuis Scaevola (Vol. 12, 2nd Ed., p.421),
sagely remarks:
La manera como esta concebida la redaccion del ultimo apartado de
dicho precepto induce la conclusion de que siempre o por lo menos,
en la mayor parte de los casos, el Juez debe acudir al criterio pericial
para que le ilustre acerca de la autenticidad del testamento olografo,
aunque ya esten insertas en los autos del expediente las
declaraciones testificales. La prudencia con que el Juez debe de
proceder en resoluciones de transcendencia asi lo exige, y la indole
delicada y peligrosa del testamento olografo lo hace necesario para
mayor garantia de todos los interes comprometidos en aquel.
En efecto, el cotejo pericial de letras puede ser una confirmacion
facultativa del dicho profano de los testigos y un modo de desvanecer
las ultimas dudas que pudieran ocurrir al Juez acerca de la
autenticidad que trata de averigaur y declarar. Para eso se ha escrito
la frase del citado ultimo apartado, (siempre que el Juez lo estime
conveniente), haya habido o no testigos y dudaran o no estos respecto
de los extremos por que son preguntados.
El arbitrio judicial en este caso debe formarse con independencia de
los sucesos y de su significacion, para responder debidamente de las
resoluciones que haya de dictar.
And because the law leaves it to the trial court if experts are still needed, no
unfavourable inference can be drawn from a party's failure to offer expert
evidence, until and unless the court expresses dissatisfaction with the
testimony of the lay witnesses.
Our conclusion is that the rule of the first paragraph of Article 811 of the Civil
Code is merely directory and is not mandatory.
Considering, however, that this is the first occasion in which this Court has
been called upon to construe the import of said article, the interest of justice
would be better served, in our opinion, by giving the parties ample opportunity
Page 48 of 62
to adduce additional evidence, including expert witnesses, should the Court
deem them necessary.
In view of the foregoing, the decision appealed from is set aside, and the
records ordered remanded to the Court of origin, with instructions to hold a
new trial in conformity with this opinion. But evidence already on record shall
not be retaken. No costs.
G.R. No. 123486 August 12, 1999
EUGENIA RAMONAL CODOY, and MANUEL RAMONAL, petitioners,
vs.
EVANGELINE R. CALUGAY, JOSEPHINE SALCEDO, and UEFEMIA
PATIGAS, respondents.
PARDO, J.:
Before us is a petition for review on certiorari of the decision of the Court of
Appeals1 and its resolution denying reconsideration, ruling:
Upon the unrebutted testimony of appellant Evangeline Calugay and
witness Matilde Ramonal Binanay, the authenticity of testators
holographic will has been established and the handwriting and
signature therein (exhibit S) are hers, enough to probate said will.
Reversal of the judgment appealed from and the probate of the
holographic will in question be called for. The rule is that after plaintiff
has completed presentation of his evidence and the defendant files a
motion for judgment on demurrer to evidence on the ground that upon
the facts and the law plaintiff has shown no right to relief, if the motion
is granted and the order to dismissal is reversed on appeal, the movant
loses his right to present evidence in his behalf (Sec, 1 Rule 35
Revised Rules of Court). Judgment may, therefore, be rendered for
appellant in the instant case.
Wherefore, the order appealed from is REVERSED and judgment
rendered allowing the probate of the holographic will of the testator
Matilde Seño Vda. de Ramonal.2
The facts are as follows:
On April 6, 1990, Evangeline Calugay, Josephine Salcedo and Eufemia
Patigas, devisees and legatees of the holographic will of the deceased Matilde
Seño Vda. de Ramonal, filed with the Regional Trial Court, Misamis Oriental,
Branch 18, a petition3 for probate of the holographic will of the deceased, who
died on January 16, 1990.
In the petition, respondents claimed that the deceased Matilde Seño Vda. de
Ramonal, was of sound and disposing mind when she executed the will on
August 30, 1978, that there was no fraud, undue influence, and duress
employed in the person of the testator, and will was written voluntarily.
The assessed value of the decedent's property, including all real and personal
property was about P400,000.00, at the time of her death.4
On June 28, 1990, Eugenia Ramonal Codoy and Manuel Ramonal filed an
opposition5 to the petition for probate, alleging that the holographic will was a
forgery and that the same is even illegible. This gives an impression that a
"third hand" of an interested party other than the "true hand" of Matilde Seño
Vda. de Ramonal executed the holographic will.
Petitioners argued that the repeated dates incorporated or appearing on will
after every disposition is out of the ordinary. If the deceased was the one who
executed the will, and was not forced, the dates and the signature should
appear at the bottom after the dispositions, as regularly done and not after
every disposition. And assuming that the holographic will is in the handwriting
of the deceased, it was procured by undue and improper pressure and
influence on the part of the beneficiaries, or through fraud and trickery.1âwphi1.nêt
Respondents presented six (6) witnesses and various documentary evidence.
Petitioners instead of presenting their evidence, filed a demurrer6 to evidence,
claiming that respondents failed to establish sufficient factual and legal basis
for the probate of the holographic will of the deceased Matilde Seño Vda. de
Ramonal.
On November 26, 1990, the lower Court issued an order, the dispositive
portion of which reads:
WHEREFORE, in view of the foregoing consideration, the Demurrer to
Evidence having being well taken, same is granted, and the petition for
Page 49 of 62
 probate of the document (Exhibit "S") on the purported Holographic
Will of the late Matilde Seño Vda. de Ramonal, is denied for
insufficiency of evidence and lack of merits.7
On December 12, 1990, respondents filed a notice of appeal, 8 and in support
of their appeal, the respondents once again reiterated the testimony of the
following witnesses, namely: (1) Augusto Neri; (2) Generosa Senon; (3)
Matilde Ramonal Binanay; (4) Teresita Vedad; (5) Fiscal Rodolfo Waga; and
(6) Evangeline Calugay.
To have a clear understanding of the testimonies of the witnesses, we recite an
account of their testimonies.
Augusto Neri, Clerk of Court, Court of First Instance of Misamis Oriental,
where the special proceedings for the probate of the holographic will of the
deceased was filed. He produced and identified the records of the case. The
documents presented bear the signature of the deceased, Matilde Seño Vda.
de Ramonal, for the purpose of laying the basis for comparison of the
handwriting of the testatrix, with the writing treated or admitted as genuine by
the party against whom the evidence is offered.
Generosa Senon, election registrar of Cagayan de Oro, was presented to
produced and identify the voter's affidavit of the decedent. However, the voters'
affidavit was not produced for the same was already destroyed and no longer
available.
Matilde Ramonal Binanay, testified that the deceased Matilde Seño Vda. de
Ramonal was her aunt, and that after the death of Matilde's husband, the latter
lived with her in her parent's house for eleven (11) years from 1958 to 1969.
During those eleven (11) years of close association the deceased, she
acquired familiarity with her signature and handwriting as she used to
accompany her (deceased Matilde Seño Vda. de Ramonal) in collecting
rentals from her various tenants of commercial buildings, and deceased
always issued receipts. In addition to this, she (witness Matilde Binanay)
assisted the deceased in posting the records of the accounts, and carried
personal letters of the deceased to her creditors.
Matilde Ramonal Binanay further testified that at the time of the death of
Matilde Vda. de Ramonal, she left a holographic will dated August 30, 1978,
which was personally and entirely written, dated and signed, by the deceased
and that all the dispositions therein, the dates, and the signatures in said will,
were that of the deceased.
Fiscal Rodolfo Waga testified that before he was appointed City Fiscal of
Cagayan de Oro, he was a practicing lawyer, and handled all the pleadings
and documents signed by the deceased in connection with the proceedings of
her late husband, as a result of which he is familiar with the handwriting of the
latter. He testified that the signature appearing in the holographic will was
similar to that of the deceased, Matilde Seño Vda. de Ramonal, but he can not
be sure.
The fifth witness presented was Mrs. Teresita Vedad, an employee of the
Department of Environment and Natural Resources, Region 10. She testified
that she processed the application of the deceased for pasture permit and was
familiar with the signature of the deceased, since the signed documents in her
presence, when the latter was applying for pasture permit.
Finally, Evangeline Calugay, one of the respondents, testified that she had
lived with the deceased since birth, and was in fact adopted by the latter. That
after a long period of time she became familiar with the signature of the
deceased. She testified that the signature appearing in the holographic will is
the true and genuine signature of Matilde Seño Vda. de Ramonal.
The holographic will which was written in Visayan, is translated in English as
follows:
Instruction
August 30, 1978
1. My share at Cogon, Raminal Street, for Evangeline Calugay.
(Sgd) Matilde Vda de Ramonal
August 30, 1978
2. Josefina Salcedo must be given 1,500 square meters at Pinikan
Street.
(Sgd) Matilde Vda de Ramonal
Page 50 of 62
August 30, 1978 Mama

3. My jewelry's shall be divided among: Matilde Vda de Ramonal

1. Eufemia Patigas On October 9, 1995, the Court of Appeals, rendered decision9 ruling that the
appeal was meritorious. Citing the decision in the case of Azaola vs. Singson,
2. Josefina Salcedo 109 Phil. 102, penned by Mr. Justice J. B. L. Reyes, a recognized authority in
civil law, the Court of Appeals held:
3. Evangeline Calugay
. . . even if the genuineness of the holographic will were contested, we
(Sgd) Matilde Vda de Ramonal are of the opinion that Article 811 of our present civil code can not be
interpreted as to require the compulsory presentation of three
witnesses to identify the handwriting of the testator, under penalty of
August 30, 1978
having the probate denied. Since no witness may have been present at
the execution of the holographic will, none being required by law (art.
4. I bequeath my one (1) hectare land at Mandumol, Indahag to 810, new civil code), it becomes obvious that the existence of
Evangeline R. Calugay witnesses possessing the requisite qualifications is a matter beyond
the control of the proponent. For it is not merely a question of finding
(Sgd) Matilde Vda de Ramonal and producing any three witnesses; they must be witnesses "who know
the handwriting and signature of the testator" and who can declare
August 30, 1978 (truthfully, of course, even if the law does not express) "that the will and
the signature are in the handwriting of the testator." There may be no
5. Give the 2,500 Square Meters at Sta. Cruz Ramonal Village in favor available witness acquainted with the testator's hand; or even if so
of Evangeline R. Calugay, Helen must continue with the Sta. Cruz, familiarized, the witness maybe unwilling to give a positive opinion.
once I am no longer around. Compliance with the rule of paragraph 1 of article 811 may thus
become an impossibility. That is evidently the reason why the second
(Sgd) Matilde Vda de Ramonal paragraph of article 811 prescribes that —

August 30, 1978 in the absence of any competent witness referred to in the preceding
paragraph, and if the court deems it necessary, expert testimony may
6. Bury me where my husband Justo is ever buried. be resorted to.

(Sgd) Matilde Vda de Ramonal As can be see, the law foresees, the possibility that no qualified
witness ma be found (or what amounts to the same thing, that no
competent witness may be willing to testify to the authenticity of the
August 30, 1978 will), and provides for resort to expert evidence to supply the
deficiency.
Gene and Manuel:
It may be true that the rule of this article (requiring that three witnesses
Follow my instruction in order that I will rest peacefully. be presented if the will is contested and only one if no contest is had)
was derived from the rule established for ordinary testaments (CF

Page 51 of 62
 Cabang vs. Delfianado, 45 PHIL 291; Tolentino v. Francisco, 57 PHIL
742). But it can not be ignored that the requirement can be considered
mandatory only in case of ordinary testaments, precisely because the
presence of at least three witnesses at the execution of ordinary wills is
made by law essential to their validity (Art. 805). Where the will is
holographic, no witness need be present (art. 10), and the rule
requiring production of three witnesses must be deemed merely
permissive if absurd results are to be avoided.
Again, under Art. 811, the resort to expert evidence is conditioned by
the words "if the court deem it necessary", which reveal that what the
law deems essential is that the court should be convinced of the will's
authenticity. Where the prescribed number of witnesses is produced
and the court is convinced by their testimony that the will is genuine, it
may consider it unnecessary to call for expert evidence. On the other
hand, if no competent witness is available, or none of those produced
is convincing, the court may still, and in fact it should resort to
handwriting experts. The duty of the court, in fine, is to exhaust all
available lines of inquiry, for the state is as much interested as the
proponent that the true intention of the testator be carried into effect.
Paraphrasing Azaola vs. Singson, even if the genuineness of the
holographic will were contested, Article 811 of the civil code cannot be
interpreted as to require the compulsory presentation of three
witnesses to identify the handwriting of the testator, under penalty of
the having the probate denied. No witness need be present in the
execution of the holographic will. And the rule requiring the production
of three witnesses is merely permissive. What the law deems essential
is that the court is convinced of the authenticity of the will. Its duty is to
exhaust all available lines of inquiry, for the state is as much interested
in the proponent that the true intention of the testator be carried into
effect. And because the law leaves it to the trial court to decide if
experts are still needed, no unfavorable inference can be drawn from a
party's failure to offer expert evidence, until and unless the court
expresses dissatisfaction with the testimony of the lay witnesses.10
According to the Court of Appeals, Evangeline Calugay, Matilde Ramonal
Binanay and other witnesses definitely and in no uncertain terms testified that
the handwriting and signature in the holographic will were those of the testator
herself.
Thus, upon the unrebutted testimony of appellant Evangeline Calugay and
witness Matilde Ramonal Binanay, the Court of Appeals sustained the
authenticity of the holographic will and the handwriting and signature therein,
and allowed the will to probate.
Hence, this petition.
The petitioners raise the following issues:
(1) Whether or not the ruling of the case of Azaola vs. Singson, 109
Phil. 102, relied upon by the respondent Court of Appeals, was
applicable to the case.
(2) Whether or not the Court of Appeals erred in holding that private
respondents had been able to present credible evidence to that the
date, text, and signature on the holographic will written entirely in the
hand of the testatrix.
(3) Whether or not the Court of Appeals erred in not analyzing the
signatures in the holographic will of Matilde Seño Vda. de Ramonal.
In this petition, the petitioners ask whether the provisions of Article 811 of the
Civil Code are permissive or mandatory. The article provides, as a requirement
for the probate of a contested holographic will, that at least three witnesses
explicitly declare that the signature in the will is the genuine signature of the
testator.
1âwphi1.nêt
We are convinced, based on the language used, that Article 811 of the Civil
Code is mandatory. The word "shall" connotes a mandatory order. We have
ruled that "shall" in a statute commonly denotes an imperative obligation and is
inconsistent with the idea of discretion and that the presumption is that the
word "shall," when used in a statute is mandatory.11
Laws are enacted to achieve a goal intended and to guide against an evil or
mischief that aims to prevent. In the case at bar, the goal to achieve is to give
effect to the wishes of the deceased and the evil to be prevented is the
possibility that unscrupulous individuals who for their benefit will employ
means to defeat the wishes of the testator.
So, we believe that the paramount consideration in the present petition is to
determine the true intent of the deceased. An exhaustive and objective
Page 52 of 62
consideration of the evidence is imperative to establish the true intent of the Q. Showing to you the receipt dated 23 October 1979, is this the one
testator. you are referring to as one of the receipts which she issued to them?

It will be noted that not all the witnesses presented by the respondents testified A. Yes, sir.
explicitly that they were familiar with the handwriting of testator. In the case of
Augusto Neri, clerk of court, Court of First Instance, Misamis Oriental, he Q. Now there is that signature of Matilde vda. De Ramonal, whose
merely identified the record of Special Proceedings No. 427 before said court. signature is that Mrs. Binanay?
He was not presented to declare explicitly that the signature appearing in the
holographic was that of the deceased. A. Matilde vda. De Ramonal.

Generosa E. Senon, the election registrar of Cagayan de Oro City, was Q. Why do you say that is the signature of Matilde Vda. De Ramonal?
presented to identify the signature of the deceased in the voter's affidavit,
which was not even produced as it was no longer available.
A. I am familiar with her signature.
Matilde Ramonal Binanay, on the other hand, testified that:
Q. Now, you tell the court Mrs. Binanay, whether you know Matilde
vda de Ramonal kept records of the accounts of her tenants?
Q. And you said for eleven (11) years Matilde Vda de Ramonal
resided with your parents at Pinikitan, Cagayan de Oro City. Would you
A. Yes, sir.
tell the court what was your occupation or how did Matilde Vda de
Ramonal keep herself busy that time?
Q. Why do you say so?
A. Collecting rentals.
A. Because we sometimes post a record of accounts in behalf of
Matilde Vda. De Ramonal.
Q. From where?
Q. How is this record of accounts made? How is this reflected?
A. From the land rentals and commercial buildings at Pabayo-Gomez
streets.12
A. In handwritten.14
xxx xxx xxx
xxx xxx xxx
Q. Who sometime accompany her?
Q. In addition to collection of rentals, posting records of accounts of
tenants and deed of sale which you said what else did you do to
A. I sometimes accompany her.
acquire familiarity of the signature of Matilde Vda De Ramonal?
Q. In collecting rentals does she issue receipts?
A. Posting records.
A. Yes, sir.13
Q. Aside from that?
xxx xxx xxx
A. Carrying letters.

Page 53 of 62
 Q. Letters of whom? A. I.

A. Matilde. Q. Since when did you have the possession of the will?

Q. To whom? A. It was in my mother's possession.

A. To her creditors.15 Q. So, it was not in your possession?

xxx xxx xxx A. Sorry, yes.

Q. You testified that at time of her death she left a will. I am showing Q. And when did you come into possession since as you said this
to you a document with its title "tugon" is this the document you are was originally in the possession of your mother?
referring to?
A. 1985.17
A. Yes, sir.
xxx xxx xxx
Q. Showing to you this exhibit "S", there is that handwritten "tugon",
whose handwriting is this? Q. Now, Mrs. Binanay was there any particular reason why your
mother left that will to you and therefore you have that in your
A. My Aunt. possession?

Q. Why do you say this is the handwriting of your aunt? A. It was not given to me by my mother, I took that in the aparador
when she died.
A. Because I am familiar with her signature.16
Q. After taking that document you kept it with you?
What Ms. Binanay saw were pre-prepared receipts and letters of the
deceased, which she either mailed or gave to her tenants. She did not declare A. I presented it to the fiscal.
that she saw the deceased sign a document or write a note.
Q. For what purpose?
Further, during the cross-examination, the counsel for petitioners elicited the
fact that the will was not found in the personal belongings of the deceased but A. Just to seek advice.
was in the possession of Ms. Binanay. She testified that:
Q. Advice of what?
Q. Mrs. Binanay, when you were asked by counsel for the petitioners
if the late Matilde Seno vda de Ramonal left a will you said, yes? A. About the will.18

A. Yes, sir. In her testimony it was also evident that Ms. Binanay kept the fact about the
will from petitioners, the legally adopted children of the deceased. Such
Q. Who was in possession of that will? actions put in issue her motive of keeping the will a secret to petitioners and
revealing it only after the death of Matilde Seño Vda. de Ramonal.
Page 54 of 62
In the testimony of Ms. Binanay, the following were established: A. Yes, sir the handwriting shows that she was very exhausted.

Q. Now, in 1978 Matilde Seno Vda de Ramonal was not yet a sickly Q. You just say that she was very exhausted while that in 1978 she
person is that correct? was healthy was not sickly and she was agile. Now, you said she was
exhausted?
A. Yes, sir.
A. In writing.
Q. She was up and about and was still uprightly and she could walk
agilely and she could go to her building to collect rentals, is that Q. How did you know that she was exhausted when you were not
correct? present and you just tried to explain yourself out because of the
apparent inconsistencies?
A. Yes, sir.19
A. That was I think. (sic).
xxx xxx xxx
Q. Now, you already observed this signature dated 1978, the same
Q. Now, let us go to the third signature of Matilde Ramonal. Do you year as the alleged holographic will. In exhibit I, you will notice that
know that there are retracings in the word Vda.? there is no retracing; there is no hesitancy and the signature was
written on a fluid movement. . . . And in fact, the name Eufemia R.
A. Yes, a little. The letter L is continuous. Patigas here refers to one of the petitioners?

Q. And also in Matilde the letter L is continued to letter D? A. Yes, sir.

A. Yes, sir. Q. You will also notice Mrs. Binanay that it is not only with the
questioned signature appearing in the alleged holographic will marked
as Exhibit X but in the handwriting themselves, here you will notice the
Q. Again the third signature of Matilde Vda de Ramonal the letter L in
hesitancy and tremors, do you notice that?
Matilde is continued towards letter D.
A. Yes, sir.21
A. Yes, sir.
Evangeline Calugay declared that the holographic will was written, dated and
Q. And there is a retracing in the word Vda.?
signed in the handwriting of the testator. She testified that:
A. Yes, sir.20
Q. You testified that you stayed with the house of the spouses Matilde
and Justo Ramonal for the period of 22 years. Could you tell the court
xxx xxx xxx the services if any which you rendered to Matilde Ramonal?

Q. Now, that was 1979, remember one year after the alleged A. During my stay I used to go with her to the church, to market and
holographic will. Now, you identified a document marked as Exhibit R. then to her transactions.
This is dated January 8, 1978 which is only about eight months from
August 30, 1978. Do you notice that the signature Matilde Vda de
Q. What else? What services that you rendered?
Ramonal is beautifully written and legible?
Page 55 of 62
 A. After my college days I assisted her in going to the bank, paying
taxes and to her lawyer.
Q. What was your purpose of going to her lawyer?
A. I used to be her personal driver.
Q. In the course of your stay for 22 years did you acquire familiarity of
the handwriting of Matilde Vda de Ramonal?
A. Yes, sir.
Q. How come that you acquired familiarity?
A. Because I lived with her since birth.22
xxx xxx xxx
Q. Now, I am showing to you Exhibit S which is captioned "tugon"
dated Agosto 30, 1978 there is a signature here below item No. 1, will
you tell this court whose signature is this?
A. Yes, sir, that is her signature.
Q. Why do you say that is her signature?
A. I am familiar with her signature.23
So, the only reason that Evangeline can give as to why she was familiar with
the handwriting of the deceased was because she lived with her since birth.
She never declared that she saw the deceased write a note or sign a
document.
The former lawyer of the deceased, Fiscal Waga, testified that:
Q. Do you know Matilde Vda de Ramonal?
A. Yes, sir I know her because she is my godmother the husband is
my godfather. Actually I am related to the husband by consanguinity.
Q. Can you tell the name of the husband?
A. The late husband is Justo Ramonal.24
xxx xxx xxx
Q. Can you tell this court whether the spouses Justo Ramonal and
Matilde Ramonal have legitimate children?
A. As far as I know they have no legitimate children.25
xxx xxx xxx
Q. You said after becoming a lawyer you practice your profession?
Where?
A. Here in Cagayan de Oro City.
Q. Do you have services rendered with the deceased Matilde vda de
Ramonal?
A. I assisted her in terminating the partition, of properties.
Q. When you said assisted, you acted as her counsel? Any sort of
counsel as in what case is that, Fiscal?
A. It is about the project partition to terminate the property, which was
under the court before.26
xxx xxx xxx
Q. Appearing in special proceeding no. 427 is the amended inventory
which is marked as exhibit N of the estate of Justo Ramonal and there
appears a signature over the type written word Matilde vda de
Ramonal, whose signature is this?
A. That is the signature of Matilde Vda de Ramonal.
Q. Also in exhibit n-3, whose signature is this?
Page 56 of 62
A. This one here that is the signature of Mrs. Matilde vda de
Ramonal.27
xxx xxx xxx
Q. Aside from attending as counsel in that Special Proceeding Case
No. 427 what were the other assistance wherein you were rendering
professional service to the deceased Matilde Vda de Ramonal?
A. I can not remember if I have assisted her in other matters but if
there are documents to show that I have assisted then I can recall.28
xxx xxx xxx
Q. Now, I am showing to you exhibit S which is titled "tugon", kindly
go over this document, Fiscal Waga and tell the court whether you are
familiar with the handwriting contained in that document marked as
exhibit "S"?
A. I am not familiar with the handwriting.
Q. This one, Matilde Vda de Ramonal, whose signature is this?
A. I think this signature here it seems to be the signature of Mrs.
Matilde vda de Ramonal.
Q. Now, in item No. 2 there is that signature here of Matilde Vda de
Ramonal, can you tell the court whose signature is this?
A. Well, that is similar to that signature appearing in the project of
partition.
Q. Also in item no. 3 there is that signature Matilde Vda de Ramonal,
can you tell the court whose signature is that?
A. As I said, this signature also seems to be the signature of Matilde
vda de Ramonal.
Q. Why do you say that?
A. Because there is a similarity in the way it is being written.
Q. How about this signature in item no. 4, can you tell the court
whose signature is this?
A. The same is true with the signature in item no. 4. It seems that they
are similar.29
xxx xxx xxx
Q. Mr. Prosecutor, I heard you when you said that the signature of
Matilde Vda de Ramonal Appearing in exhibit S seems to be the
signature of Matilde vda de Ramonal?
A. Yes, it is similar to the project of partition.
Q. So you are not definite that this is the signature of Matilde vda de
Ramonal. You are merely supposing that it seems to be her signature
because it is similar to the signature of the project of partition which
you have made?
A. That is true.30
From the testimonies of these witnesses, the Court of Appeals allowed the will
to probate and disregard the requirement of three witnesses in case of
contested holographic will, citing the decision in Azaola vs. Singson,31ruling
that the requirement is merely directory and not mandatory.
In the case of Ajero vs. Court of Appeals,32 we said that "the object of the
solemnities surrounding the execution of wills is to close the door against bad
faith and fraud, to avoid substitution of wills and testaments and to guaranty
their truth and authenticity. Therefore, the laws on this subject should be
interpreted in such a way as to attain these primordial ends. But on the other
hand, also one must not lose sight of the fact that it is not the object of the law
to restrain and curtail the exercise of the right to make a will.
However, we cannot eliminate the possibility of a false document being
adjudged as the will of the testator, which is why if the holographic will is
contested, that law requires three witnesses to declare that the will was in the
handwriting of the deceased.
Page 57 of 62
The will was found not in the personal belongings of the deceased but with one
of the respondents, who kept it even before the death of the deceased. In the
testimony of Ms. Binanay, she revealed that the will was in her possession as
early as 1985, or five years before the death of the deceased.
There was no opportunity for an expert to compare the signature and the
handwriting of the deceased with other documents signed and executed by her
during her lifetime. The only chance at comparison was during the cross-
examination of Ms. Binanay when the lawyer of petitioners asked Ms. Binanay
to compare the documents which contained the signature of the deceased with
that of the holographic will and she is not a handwriting expert. Even the
former lawyer of the deceased expressed doubts as to the authenticity of the
signature in the holographic will.
A visual examination of the holographic will convince us that the strokes are
different when compared with other documents written by the testator. The
signature of the testator in some of the disposition is not readable. There were
uneven strokes, retracing and erasures on the will.
Comparing the signature in the holographic will dated August 30, 1978, 33 and
the signatures in several documents such as the application letter for pasture
permit dated December 30, 1980,34 and a letter dated June 16, 1978,35the
strokes are different. In the letters, there are continuous flows of the strokes,
evidencing that there is no hesitation in writing unlike that of the holographic
will. We, therefore, cannot be certain that ruling holographic will was in the
handwriting by the deceased.
IN VIEW WHEREOF, the decision appealed from is SET ASIDE. The records
are ordered remanded to the court of origin with instructions to allow
petitioners to adduce evidence in support of their opposition to the probate of
the holographic will of the deceased Matilde Seño vda. de Ramonal. 1âwphi1.nêt
No costs.
SO ORDERED.
G.R. No. 76464 February 29, 1988
TESTATE ESTATE OF THE LATE ADRIANA MALOTO, ALDINA MALOTO
CASIANO, CONSTANCIO MALOTO, PURIFICACION MIRAFLOR, ROMAN
CATHOLIC CHURCH OF MOLO, AND ASILO DE MOLO, petitioners,
vs.
COURT OF APPEALS, PANFILO MALOTO AND FELINO
MALOTO, respondents.
SARMIENTO, J.:
This is not the first time that the parties to this case come to us. In fact, two
other cases directly related to the present one and involving the same parties
had already been decided by us in the past. In G.R. No. L-30479, 1which was a
petition for certiorari and mandamus instituted by the petitioners herein, we
dismissed the petition ruling that the more appropriate remedy of the petitioners is
a separate proceeding for the probate of the will in question. Pursuant to the said
ruling, the petitioners commenced in the then Court of First Instance of Iloilo,
Special Proceeding No. 2176, for the probate of the disputed will, which was
opposed by the private respondents presently, Panfilo and Felino both surnamed
Maloto. The trial court dismissed the petition on April 30, 1970. Complaining
against the dismissal, again, the petitioners came to this Court on a petition for
review by certiorari. 2 Acting on the said petition, we set aside the trial court's order
and directed it to proceed to hear the case on the merits. The trial court, after
hearing, found the will to have already been revoked by the testatrix. Adriana
Maloto, and thus, denied the petition. The petitioners appealed the trial court's
decision to the Intermediate Appellate Court which, on June 7, 1985, affirmed the
order. The petitioners' motion for reconsideration of the adverse decision proved to
be of no avail, hence, this petition.
For a better understanding of the controversy, a factual account would be a
great help.
On October 20, 1963, Adriana Maloto died leaving as heirs her niece and
nephews, the petitioners Aldina Maloto-Casiano and Constancio, Maloto, and
the private respondents Panfilo Maloto and Felino Maloto. Believing that the
deceased did not leave behind a last will and testament, these four heirs
commenced on November 4, 1963 an intestate proceeding for the settlement
of their aunt's estate. The case was instituted in the then Court of First
Instance of Iloilo and was docketed as Special Proceeding No. 1736. However,
while the case was still in progress, or to be exact on February 1, 1964, the
parties — Aldina, Constancio, Panfilo, and Felino — executed an agreement of
extrajudicial settlement of Adriana's estate. The agreement provided for the
division of the estate into four equal parts among the parties. The Malotos then
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presented the extrajudicial settlement agreement to the trial court for approval
which the court did on March 21, 1964. That should have signalled the end of
the controversy, but, unfortunately, it had not.
Three years later, or sometime in March 1967, Atty. Sulpicio Palma, a former
associate of Adriana's counsel, the late Atty. Eliseo Hervas, discovered a
document entitled "KATAPUSAN NGA PAGBUBULAT-AN (Testamento)," dated
January 3,1940, and purporting to be the last will and testament of Adriana.
Atty. Palma claimed to have found the testament, the original copy, while he
was going through some materials inside the cabinet drawer formerly used by
Atty. Hervas. The document was submitted to the office of the clerk of the
Court of First Instance of Iloilo on April 1, 1967. Incidentally, while Panfilo and
Felino are still named as heirs in the said will, Aldina and Constancio are
bequeathed much bigger and more valuable shares in the estate of Adriana
than what they received by virtue of the agreement of extrajudicial settlement
they had earlier signed. The will likewise gives devises and legacies to other
parties, among them being the petitioners Asilo de Molo, the Roman Catholic
Church of Molo, and Purificacion Miraflor.
Thus, on May 24, 1967, Aldina and Constancio, joined by the other devisees
and legatees named in the will, filed in Special Proceeding No. 1736 a motion
for reconsideration and annulment of the proceedings therein and for the
allowance of the will When the trial court denied their motion, the petitioner
came to us by way of a petition for certiorari and mandamus assailing the
orders of the trial court . 3 As we stated earlier, we dismissed that petition and
advised that a separate proceeding for the probate of the alleged will would be the
appropriate vehicle to thresh out the matters raised by the petitioners.
Significantly, the appellate court while finding as inconclusive the matter on
whether or not the document or papers allegedly burned by the househelp of
Adriana, Guadalupe Maloto Vda. de Coral, upon instructions of the testatrix,
was indeed the will, contradicted itself and found that the will had been
revoked. The respondent court stated that the presence of animus revocandi in
the destruction of the will had, nevertheless, been sufficiently proven. The
appellate court based its finding on the facts that the document was not in the
two safes in Adriana's residence, by the testatrix going to the residence of Atty.
Hervas to retrieve a copy of the will left in the latter's possession, and, her
seeking the services of Atty. Palma in order to have a new will drawn up. For
reasons shortly to be explained, we do not view such facts, even considered
collectively, as sufficient bases for the conclusion that Adriana Maloto's will had
been effectively revoked.
There is no doubt as to the testamentary capacity of the testatrix and the due
execution of the will. The heart of the case lies on the issue as to whether or
not the will was revoked by Adriana.
The provisions of the new Civil Code pertinent to the issue can be found in
Article 830.
Art. 830. No will shall be revoked except in the following cases:
(1) By implication of law; or
(2) By some will, codicil, or other writing executed as provided
in case of wills: or
(3) By burning, tearing, cancelling, or obliterating the will with
the intention of revoking it, by the testator himself, or by some
other person in his presence, and by his express direction. If
burned, torn cancelled, or obliterated by some other person,
without the express direction of the testator, the will may still be
established, and the estate distributed in accordance therewith,
if its contents, and due execution, and the fact of its
unauthorized destruction, cancellation, or obliteration are
established according to the Rules of Court. (Emphasis
Supplied.)
It is clear that the physical act of destruction of a will, like burning in this case,
does not per se constitute an effective revocation, unless the destruction is
coupled with animus revocandi on the part of the testator. It is not imperative
that the physical destruction be done by the testator himself. It may be
performed by another person but under the express direction and in
the presence of the testator. Of course, it goes without saying that the
document destroyed must be the will itself.
In this case, while animus revocandi or the intention to revoke, may be
conceded, for that is a state of mind, yet that requisite alone would not suffice.
"Animus revocandi is only one of the necessary elements for the effective
revocation of a last will and testament. The intention to revoke must be
accompanied by the overt physical act of burning, tearing, obliterating, or
cancelling the will carried out by the testator or by another person in his
presence and under his express direction. There is paucity of evidence to
show compliance with these requirements. For one, the document or papers
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burned by Adriana's maid, Guadalupe, was not satisfactorily established to be
a will at all, much less the will of Adriana Maloto. For another, the burning was
not proven to have been done under the express direction of Adriana. And
then, the burning was not in her presence. Both witnesses, Guadalupe and
Eladio, were one in stating that they were the only ones present at the place
where the stove (presumably in the kitchen) was located in which the papers
proffered as a will were burned.
The respondent appellate court in assessing the evidence presented by the
private respondents as oppositors in the trial court, concluded that the
testimony of the two witnesses who testified in favor of the will's revocation
appear "inconclusive." We share the same view. Nowhere in the records
before us does it appear that the two witnesses, Guadalupe Vda. de Corral
and Eladio Itchon, both illiterates, were unequivocably positive that the
document burned was indeed Adriana's will. Guadalupe, we think, believed
that the papers she destroyed was the will only because, according to her,
Adriana told her so. Eladio, on the other hand, obtained his information that the
burned document was the will because Guadalupe told him so, thus, his
testimony on this point is double hearsay.
At this juncture, we reiterate that "(it) is an important matter of public interest
that a purported win is not denied legalization on dubious grounds. Otherwise,
the very institution of testamentary succession will be shaken to its very
foundations ...." 4
The private respondents in their bid for the dismissal of the present action for
probate instituted by the petitioners argue that the same is already barred
by res adjudicata. They claim that this bar was brought about by the
petitioners' failure to appeal timely from the order dated November 16, 1968 of
the trial court in the intestate proceeding (Special Proceeding No. 1736)
denying their (petitioners') motion to reopen the case, and their prayer to annul
the previous proceedings therein and to allow the last will and testament of the
late Adriana Maloto. This is untenable.
The doctrine of res adjudicata finds no application in the present controversy.
For a judgment to be a bar to a subsequent case, the following requisites must
concur: (1) the presence of a final former judgment; (2) the former judgment
was rendered by a court having jurisdiction over the subject matter and the
parties; (3) the former judgment is a judgment on the merits; and (4) there is,
between the first and the second action, Identity of parties, of subject matter,
and of cause of action. 5 We do not find here the presence of all the enumerated
requisites.
For one, there is yet, strictly speaking, no final judgment rendered insofar as
the probate of Adriana Maloto's will is concerned. The decision of the trial court
in Special Proceeding No. 1736, although final, involved only the intestate
settlement of the estate of Adriana. As such, that judgment could not in any
manner be construed to be final with respect to the probate of the
subsequently discovered will of the decedent. Neither is it a judgment on the
merits of the action for probate. This is understandably so because the trial
court, in the intestate proceeding, was without jurisdiction to rule on the
probate of the contested will . 6 After all, an action for probate, as it implies, is
founded on the presence of a will and with the objective of proving its due
execution and validity, something which can not be properly done in an intestate
settlement of estate proceeding which is predicated on the assumption that the
decedent left no will. Thus, there is likewise no Identity between the cause of
action in intestate proceeding and that in an action for probate. Be that as it may, it
would be remembered that it was precisely because of our ruling in G.R. No. L-
30479 that the petitioners instituted this separate action for the probate of the late
Adriana Maloto's will. Hence, on these grounds alone, the position of the private
respondents on this score can not be sustained.
One last note. The private respondents point out that revocation could be
inferred from the fact that "(a) major and substantial bulk of the properties
mentioned in the will had been disposed of: while an insignificant portion of the
properties remained at the time of death (of the testatrix); and, furthermore,
more valuable properties have been acquired after the execution of the will on
January 3,1940." 7 Suffice it to state here that as these additional matters raised
by the private respondents are extraneous to this special proceeding, they could
only be appropriately taken up after the will has been duly probated and a
certificate of its allowance issued.
WHEREFORE, judgment is hereby rendered REVERSING and SETTING
ASIDE the Decision dated June 7, 1985 and the Resolution dated October 22,
1986, of the respondent Court of Appeals, and a new one ENTERED for the
allowance of Adriana Maloto's last will and testament. Costs against the private
respondents.
This Decision is IMMEDIATELY EXECUTORY.
SO ORDERED.
Page 60 of 62
G.R. No. L-26317 January 29, 1927
Estate of Miguel Mamuyac, deceased.
FRANCISCO GAGO, petitioner-appellant,
vs.
CORNELIO MAMUYAC, AMBROSIO LARIOSA,
FELICIANA BAUZON, and CATALINA MAMUYAC, opponents-appellees.
Nicanor Tavora for appellant.
Jose Rivera for appellees.
JOHNSON, J.:
The purpose of this action was to obtain the probation of a last will and
testament of Miguel Mamuyac, who died on the 2d day of January, 1922, in the
municipality of Agoo of the Province of La Union. It appears from the record
that on or about the 27th day of July, 1918, the said Miguel Mamuyac executed
a last will and testament (Exhibit A). In the month of January, 1922, the said
Francisco Gago presented a petition in the Court of First Instance of the
Province of La Union for the probation of that will. The probation of the same
was opposed by Cornelio Mamuyac, Ambrosio Lariosa, Feliciana Bauzon, and
Catalina Mamuyac (civil cause No. 1144, Province of La Union). After hearing
all of the parties the petition for the probation of said will was denied by the
Honorable C. M. Villareal on the 2d day of November, 1923, upon the ground
that the deceased had on the 16th day of April, 1919, executed a new will and
testament.
On the 21st day of February, 1925, the present action was commenced. Its
purpose was to secure the probation of the said will of the 16th day of April,
1919 (Exhibit 1). To said petition Cornelio Mamuyac, Ambrosio Lariosa,
Feliciana Bauzon, and Catalina Mamuyac presented their oppositions, alleging
(a) that the said will is a copy of the second will and testament executed by the
said Miguel Mamuyac; (b) that the same had been cancelled and revoked
during the lifetime of Miguel Mamuyac and (c) that the said will was not the last
will and testament of the deceased Miguel Mamuyac.
Upon the issue thus presented, the Honorable Anastacio R. Teodoro, judge,
after hearing the respective parties, denied the probation of said will of April
16, 1919, upon the ground that the same had been cancelled and revoked in
the year 1920. Judge Teodoro, after examining the evidence adduced, found
that the following facts had been satisfactorily proved:
That Exhibit A is a mere carbon of its original which remained in the
possession of the deceased testator Miguel Mamuyac, who revoked it
before his death as per testimony of witness Jose Fenoy, who typed
the will of the testator on April 16, 1919, and Carlos Bejar, who saw on
December 30, 1920, the original Exhibit A (will of 1919) actually
cancelled by the testator Miguel Mamuyac, who assured Carlos Bejar
that inasmuch as he had sold him a house and the land where the
house was built, he had to cancel it (the will of 1919), executing
thereby a new testament. Narcisa Gago in a way corroborates the
testimony of Jose Fenoy, admitting that the will executed by the
deceased (Miguel Mamuyac) in 1919 was found in the possession of
father Miguel Mamuyac. The opponents have successfully established
the fact that father Miguel Mamuyac had executed in 1920 another will.
The same Narcisa Gago, the sister of the deceased, who was living in
the house with him, when cross-examined by attorney for the
opponents, testified that the original Exhibit A could not be found. For
the foregoing consideration and for the reason that the original of
Exhibit A has been cancelled by the deceased father Miguel Mamuyac,
the court disallows the probate of Exhibit A for the applicant." From that
order the petitioner appealed.
The appellant contends that the lower court committed an error in not finding
from the evidence that the will in question had been executed with all the
formalities required by the law; that the same had been revoked and cancelled
in 1920 before his death; that the said will was a mere carbon copy and that
the oppositors were not estopped from alleging that fact.
With reference to the said cancellation, it may be stated that there is positive
proof, not denied, which was accepted by the lower court, that will in question
had been cancelled in 1920. The law does not require any evidence of the
revocation or cancellation of a will to be preserved. It therefore becomes
difficult at times to prove the revocation or cancellation of wills. The fact that
such cancellation or revocation has taken place must either remain unproved
of be inferred from evidence showing that after due search the original will
cannot be found. Where a will which cannot be found is shown to have been in
the possession of the testator, when last seen, the presumption is, in the
absence of other competent evidence, that the same was cancelled or
destroyed. The same presumption arises where it is shown that the testator
had ready access to the will and it cannot be found after his death. It will not be
presumed that such will has been destroyed by any other person without the
knowledge or authority of the testator. The force of the presumption of
cancellation or revocation by the testator, while varying greatly, being weak or
Page 61 of 62
strong according to the circumstances, is never conclusive, but may be
overcome by proof that the will was not destroyed by the testator with intent to
revoke it.

In view of the fat that the original will of 1919 could not be found after the death
of the testator Miguel Mamuyac and in view of the positive proof that the same
had been cancelled, we are forced to the conclusion that the conclusions of
the lower court are in accordance with the weight of the evidence. In a
proceeding to probate a will the burden of proofs is upon the proponent clearly
to establish not only its execution but its existence. Having proved its
execution by the proponents, the burden is on the contestant to show that it
has been revoked. In a great majority of instances in which wills are destroyed
for the purpose of revoking them there is no witness to the act of cancellation
or destruction and all evidence of its cancellation perishes with the testator.
Copies of wills should be admitted by the courts with great caution. When it is
proven, however, by proper testimony that a will was executed in duplicate and
each copy was executed with all the formalities and requirements of the law,
then the duplicate may be admitted in evidence when it is made to appear that
the original has been lost and was not cancelled or destroyed by the testator.
(Borromeo vs. Casquijo, G.R. No. L-26063.)1

After a careful examination of the entire record, we are fully persuaded that the
will presented for probate had been cancelled by the testator in 1920.
Therefore the judgment appealed from is hereby affirmed. And without any
finding as to costs, it is so ordered.

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