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Succession On January 13, 1975, Marina Paje, alleged to be a laundrywoman of

Cases for Articles 804-814 Marcelina (P. 97, CA Rollo) and the executrix in her will (the alternate
executrix was Juanita Macaraeg, mother of Oscar, Marilyn's husband),
1. Suroza vs. Honrado (December 19, 1981) filed with the Court of First Instance of Rizal, Pasig Branch 25, a
AQUINO, J.: petition for the probate of Marcelina's alleged will. The case was
assigned to Judge Reynaldo P. Honrado.
Should disciplinary action be taken against respondent judge for
having admitted to probate a will, which on its face is void because it is As there was no opposition, Judge Honrado commissioned his deputy
written in English, a language not known to the illiterate testatrix, and clerk of court, Evangeline S. Yuipco, to hear the evidence. The
which is probably a forged will because she and the attesting transcripts of the stenographic notes taken at the hearing before the
witnesses did not appear before the notary as admitted by the notary deputy clerk of court are not in the record.
himself?
In an order dated March 31, 1975, Judge Honrado appointed Marina
That question arises under the pleadings filed in the testate case and as administratrix. On the following day, April 1, Judge Honrado issued
in the certiorari case in the Court of Appeals which reveal the following two orders directing the Merchants Banking Corporation and the Bank
tangled strands of human relationship: 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
Mauro Suroza, a corporal in the 45th Infantry of the U.S. Army
them to Marina.
(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 Upon motion of Marina, Judge Honrado issued another order dated
considered them as his parents as shown in his 1945 marriage April 11, 1975, instructing a deputy sheriff to eject the occupants of the
contract with Nenita de Vera (p. 15, Rollo of CA-G.R. No. 08654-R; p. testatrix's house, among whom was Nenita V. Suroza, and to place
148, Rollo of Testate Case showing that Agapito was 5 years old when Marina in possession thereof.
Mauro married Marcelina in 1923).
That order alerted Nenita to the existence of the testamentary
Mauro died in 1942. Marcelina, as a veteran's widow, became a proceeding for the settlement of Marcelina's estate. She and the other
pensioner of the Federal Government. That explains why on her death occupants of the decedent's house filed on April 18 in the said
she had accumulated some cash in two banks. 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 and Nenita begot a child named Lilia who became a medical
Agapito's guardian and that Marilyn was not Agapito's daughter nor the
technologist and went abroad. Agapito also became a soldier. He was
decedent's granddaughter (pp. 52-68, Record of testate case). Later,
disabled and his wife Nenita was appointed as his guardian in 1953
they questioned the probate court's jurisdiction to issue the ejectment
when he was declared an incompetent in Special Proceeding No. 1807
order.
of the Court of First Instance of Rizal, Pasig Branch I (p. 16, Rollo of
CA-G.R. No. 08654-R).
In spite of the fact that Judge Honrado was already apprised that
persons, other than Marilyn, were claiming Marcelina's estate, he
In that connection, it should be noted that a woman named Arsenia de
issued on April 23 an order probating her supposed will wherein
la Cruz wanted also to be his guardian in another proceeding. Arsenia
Marilyn was the instituted heiress (pp. 74-77, Record).
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). 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
Judge Bienvenido A. Tan dismissed the second guardianship
reiterated her allegation that Marilyn was a stranger to Marcelina, that
proceeding and confirmed Nenita's appointment as guardian of Agapito
the will was not duly executed and attested, that it was procured by
(p. 16, Rollo of CA case). Agapito has been staying in a veteran's
means of undue influence employed by Marina and Marilyn and that
hospital in San Francisco or Palo Alto, California (p. 87, Record).
the thumbmarks of the testatrix were procured by fraud or trick.

On a date not indicated in the record, the spouses Antonio Sy and


Nenita further alleged that the institution of Marilyn as heir is void
Hermogena Talan begot a child named Marilyn Sy, who, when a few
because of the preterition of Agapito and that Marina was not qualified
days old, was entrusted to Arsenia de la Cruz (apparently a girl friend
to act as executrix (pp. 83-91, Record).
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 To that motion was attached an affidavit of Zenaida A. Penaojas the
used the surname Suroza. She stayed with Marcelina but was not housemaid of Marcelina, who swore that the alleged will was
legally adopted by Agapito. She married Oscar Medrano and is falsified (p. 109, Record).
residing at 7666 J.B. Roxas Street, Makati, apparently a neighbor of
Marina Paje, a resident of 7668 J.B. Roxas Street.
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
Marcelina supposedly executed a notarial will in Manila on July 23, April 24), Nenita filed the next day, April 25, an opposition to the
1973, when she was 73 years old. That will which is in English was probate of the will and a counter-petition for letters of administration. In
thumbmarked by her. She was illiterate. Her letters in English to the that opposition, Nenita assailed the due execution of the will and stated
Veterans Administration were also thumbmarked by her (pp. 38-39, CA the names and addresses of Marcelina's intestate heirs, her nieces
Rollo). In that wig, Marcelina bequeathed all her estate to her and nephews (pp. 113-121, Record). Nenita was not aware of the
supposed granddaughter Marilyn. decree of probate dated April 23, 1975.

Marcelina died on November 15, 1974 at the Veterans Hospital in To that opposition was attached an affidavit of Dominga Salvador
Quezon City. At the time of her death, she was a resident of 7374 San Teodocio, Marcelina's niece, who swore that Marcelina never executed
Maximo Street, Olimpia, Makati, Rizal. She owned a 150-square meter a win (pp. 124-125, Record).
lot and house in that place. She acquired the lot in 1966 (p. 134,
Record of testate case).
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 Evangeline branded as a lie Nenita's imputation that she (Evangeline)
Marcelina's sonbut merely an anak-anakan who was not legally prevented Nenita from having access to the record of the testamentary
adopted (p. 143, Record). 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
Judge Honrado in his order of July 17, 1975 dismissed Nenita's
needed in order that Nenita could get a favorable decision. Evangeline
counter-petition for the issuance of letters of administration because of
also denied that she has any knowledge of Nenita's pension from the
the non-appearance of her counsel at the hearing. She moved for the
Federal Government.
reconsideration of that order.

The 1978 complaint against Judge Honorado was brought to attention


In a motion dated December 5, 1975, for the consolidation of all
of this Court in the Court Administrator's memorandum of September
pending incidents, Nenita V. Suroza reiterated her contention that the
25, 1980. The case was referred to Justice Juan A. Sison of the Court
alleged will is void because Marcelina did not appear before the notary
of Appeals for investigation, report and recommendation. He submitted
and because it is written in English which is not known to her (pp. 208-
a report dated October 7, 1981.
209, Record).

On December 14, 1978, Nenita filed in the Court of Appeals against


Judge Honrado in his order of June 8, 1976 "denied" the various
Judge Honrado a petition for certiorari and prohibition wherein she
incidents "raised" by Nenita (p. 284, Record).
prayed that the will, the decree of probate and all the proceedings in
the probate case be declared void.
Instead of appealing from that order and the order probating the wig,
Nenita "filed a case to annul" the probate proceedings (p. 332,
Attached to the petition was the affidavit of Domingo P. Aquino, who
Record). That case, Civil Case No. 24276, Suroza vs. Paje and
notarized the will. He swore that the testatrix and the three attesting
Honrado (p. 398, Record), was also assigned to Judge Honrado. He
witnesses did not appear before him and that he notarized the will "just
dismissed it in his order of February 16, 1977 (pp. 398-402, Record).
to accommodate a brother lawyer on the condition" that said lawyer
would bring to the notary the testatrix and the witnesses but the lawyer
Judge Honrado in his order dated December 22, 1977, after noting that never complied with his commitment.
the executrix had delivered the estate to Marilyn, and that the estate
tax had been paid, closed the testamentary proceeding.
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
About ten months later, in a verified complaint dated October 12, 1978, the special civil action of certiorari (Suroza vs. Honrado, CA-G.R. No.
filed in this Court, Nenita charged Judge Honrado with having probated SP-08654, May 24, 1981).
the fraudulent will of Marcelina. The complainant reiterated her
contention that the testatrix was illiterate as shown by the fact that she
Relying on that decision, Judge Honrado filed on November 17, 1981 a
affixed her thumbmark to the will and that she did not know English,
motion to dismiss the administrative case for having allegedly become
the language in which the win was written. (In the decree of probate
moot and academic.
Judge Honrado did not make any finding that the will was written in a
language known to the testatrix.)
We hold that disciplinary action should be taken against respondent
judge for his improper disposition of the testate case which might have
Nenita further alleged that Judge Honrado, in spite of his knowledge
resulted in a miscarriage of justice because the decedent's legal heirs
that the testatrix had a son named Agapito (the testatrix's supposed
and not the instituted heiress in the void win should have inherited the
sole compulsory and legal heir), who was preterited in the will, did not
decedent's estate.
take into account the consequences of such a preterition.

A judge may be criminally liable or knowingly rendering an unjust


Nenita disclosed that she talked several times with Judge Honrado and
judgment or interlocutory order or rendering a manifestly unjust
informed him that the testatrix did not know the executrix Marina Paje,
judgment or interlocutory order by reason of inexcusable negligence or
that the beneficiary's real name is Marilyn Sy and that she was not the
ignorance (Arts. 204 to 206, Revised Penal Code).
next of kin of the testatrix.

Administrative action may be taken against a judge of the court of first


Nenita denounced Judge Honrado for having acted corruptly in
instance for serious misconduct or inefficiency ( Sec. 67, Judiciary
allowing Marina and her cohorts to withdraw from various banks the
Law). Misconduct implies malice or a wrongful intent, not a mere error
deposits Marcelina.
of judgment. "For serious misconduct to exist, there must be reliable
evidence showing that the judicial acts complained of were corrupt or
She also denounced Evangeline S. Yuipco, the deputy clerk of court, inspired by an intention to violate the law, or were in persistent
for not giving her access to the record of the probate case by alleging disregard of well-known legal rules" (In relmpeachment of Horrilleno,
that it was useless for Nenita to oppose the probate since Judge 43 Phil. 212, 214-215).
Honrado would not change his decision. Nenita also said that
Evangeline insinuated that if she (Nenita) had ten thousand pesos, the
Inefficiency implies negligence, incompetence, ignorance and
case might be decided in her favor. Evangeline allegedly advised
carelessness. A judge would be inexcusably negligent if he failed to
Nenita to desist from claiming the properties of the testatrix because
observe in the performance of his duties that diligence, prudence and
she (Nenita) had no rights thereto and, should she persist, she might
circumspection which the law requires in the rendition of any public
lose her pension from the Federal Government.
service (In re Climaco, Adm. Case No. 134-J, Jan. 21, 1974, 55 SCRA
107, 119).
Judge Honrado in his brief comment did not deal specifically with the
allegations of the complaint. He merely pointed to the fact that Nenita
In this case, respondent judge, on perusing the will and noting that it
did not appeal from the decree of probate and that in a motion dated
was written in English and was thumbmarked by an obviously illiterate
July 6, 1976 she asked for a thirty day period within which to vacate
testatrix, could have readily perceived that the will is void.
the house of the testatrix.

In the opening paragraph of the will, it was stated that English was a
Evangeline S. Yuipco in her affidavit said that she never talked with
language "understood and known" to the testatrix. But in its concluding
Nenita and that the latter did not mention Evangeline in her letter dated
paragraph, it was stated that the will was read to the testatrix "and
September 11, 1978 to President Marcos.
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 bottom. A different interpretation would assume that the statute
provision of article 804 of the Civil Code that every will must be requires that this sheet, already signed at the bottom, be signed twice.
executed in a language or dialect known to the testator. Thus, a will We cannot attribute to the statute such an intention. As these
written in English, which was not known to the Igorot testator, is void signatures must be written by the testator and the witnesses in the
and was disallowed (Acop vs. Piraso, 52 Phil. 660). 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
The hasty preparation of the will is shown in the attestation clause and
signatures, affixed on another part of same sheet, would add nothing.
notarial acknowledgment where Marcelina Salvador Suroza is
We cannot assume that the statute regards of such importance the
repeatedly referred to as the "testator" instead of "testatrix".
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
Had respondent judge been careful and observant, he could have guaranty the authenticity of the sheet but, if repeated on the margin,
noted not only the anomaly as to the language of the will but also that give sufficient security.
there was something wrong in instituting the supposed granddaughter
as sole heiress and giving nothing at all to her supposed father who
In requiring that each and every page of a will must be numbered
was still alive.
correlatively in letters placed on the upper part of the sheet, it is
likewise clear that the object of Act No. 2645 is to know whether any
Furthermore, after the hearing conducted by respondent deputy clerk sheet of the will has been removed. But, when all the dispositive parts
of court, respondent judge could have noticed that the notary was not of a will are written on one sheet only, the object of the statute
presented as a witness. disappears because the removal of this single sheet, although
unnumbered, cannot be hidden.
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 What has been said is also applicable to the attestation clause.
could have ascertained whether the will was validly executed. Wherefore, without considering whether or not this clause is an
essential part of the will, we hold that in the one accompanying the will
in question, the signatures of the testatrix and of the three witnesses
Under the circumstances, we find his negligence and dereliction of on the margin and the numbering of the pages of the sheet are
duty to be inexcusable. formalities not required by the statute. Moreover, referring specially to
the signature of the testatrix, we can add that same is not necessary in
WHEREFORE, for inefficiency in handling the testate case of the attestation clause because this, as its name implies, appertains
Marcelina S. Suroza, a fine equivalent to his salary for one month is only to the witnesses and not to the testator since the latter does not
imposed on respondent judge (his compulsory retirement falls on attest, but executes, the will.
December 25, 1981).
Synthesizing our opinion, we hold that in a will consisting of two sheets
The case against respondent Yuipco has become moot and academic the first of which contains all the testamentary dispositions and is
because she is no longer employed in the judiciary. Since September signed at the bottom by the testator and three witnesses and the
1, 1980 she has been assistant city fiscal of Surigao City. She is second contains only the attestation clause and is signed also at the
beyond this Court's disciplinary jurisdiction (Peralta vs. Firm Adm. bottom by the three witnesses, it is not necessary that both sheets be
Matter No. 2044-CFI November 21, 1980, 101 SCRA 225). further signed on their margins by the testator and the witnesses, or be
paged.
SO ORDERED.
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
2. Abangan vs. Abangan (November 12, 1919) and testaments and to guaranty their truth and authenticity. Therefore
the laws on this subject should be interpreted in such a way as to
AVANCEÑA, J.: attain these primordal 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
On September 19, 1917, the Court of First Instance of Cebu admitted interpretation already given assures such ends, any other
to probate Ana Abangan's will executed July, 1916. From this decision interpretation whatsoever, that adds nothing but demands more
the opponent's appealed. requisites entirely unnecessary, useless and frustative of the testator's
last will, must be disregarded. lawphil.net
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, As another ground for this appeal, it is alleged the records do not show
duly signed at the bottom by Martin Montalban (in the name and under that the testarix knew the dialect in which the will is written. But the
the direction of the testatrix) and by three witnesses. The following circumstance appearing in the will itself that same was executed in the
sheet contains only the attestation clause duly signed at the bottom by city of Cebu and in the dialect of this locality where the testatrix was a
the three instrumental witnesses. Neither of these sheets is signed on neighbor is enough, in the absence of any proof to the contrary, to
the left margin by the testatrix and the three witnesses, nor numbered presume that she knew this dialect in which this will is written.
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. For the foregoing considerations, the judgment appealed from is
hereby affirmed with costs against the appellants. So ordered.
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) 3. Gonzales vs. Laurel (January 15, 1923)
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 ROMUALDEZ, J.:
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 By an order dated December 16, 1921, the Court of First Instance of
said sheet would be completely purposeless. In requiring this signature Batangas allowed the document, Exhibit A, to probate as the last will
on the margin, the statute took into consideration, undoubtedly, the and testament of the deceased Maria Tapia, thus granting the petition
case of a will written on several sheets and must have referred to the of Primitivo L. Gonzalez and overruling the opposition presented by
sheets which the testator and the witnesses do not have to sign at the Jovita Laurel.chanroblesvirtualawlibrary chanrobles virtual law library
Jovita Laurel now appeals to this court from that ruling of the court The order appealed from is affirmed, with the costs against the
below, alleging that court erred: appellant. So ordered.

1. In Holding that Exhibit A, the supposed will of the deceased Maria


Tapia y Castillo, was executed with the solemnities prescribed by the
law, notwithstanding that there was no proof of the dialect known by
the said deceased and of the fact that it was the same in which said
Exhibit A was written.chanroblesvirtualawlibrary chanrobles virtual law
library

2. In not holding that the signatures of Maria Tapia appearing in said


Exhibit A had been obtained through deceipt, surprise, fraud, and in an
illegal and improper manner.chanroblesvirtualawlibrary chanrobles
virtual law library

3. In not finding that said Exhibit A was obtained through unlawful


pressure, influence and machinations of the applicant, Primitivo L.
Gonzalez, one of the legatees, in connivance with Attorney Modesto
Castillo.chanroblesvirtualawlibrary chanrobles virtual law library

4. In not finding that the deceased Maria Tapia was physically and
mentally incapacitated at the time she is said to have executed Exhibit
A.chanroblesvirtualawlibrary chanrobles virtual law library

5. In declaring said Exhibit A valid and authentic and allowing it to


probate as the will and testament of the deceased Maria Tapia y
Castillo.

Concerning the first error assigned, it appears that the deceased Maria
Tapia was a resident of the Province of Batangas, a Tagalog region,
where said deceased had real properties for several years. It also
appears that she requested Modesto Castillo to draw her will in
Tagalog. From the record taken as a whole, a presumption arises that
said Maria Tapia knew the Tagalog dialect, which presumption is now
conclusive for not having been overthrown nor
rebutted.chanroblesvirtualawlibrary chanrobles virtual law library

The three following errors have reference to the question whether or


not the testatrix acted voluntarily and with full knowledge in executing
and signing the will. The preponderance of evidence in this respect is
that said document was executed and signed by Maria Tapia
voluntarily and with full knowledge, without fraud, deceit, surprise, or
undue influence or machinations of anybody, she being then mentally
capacitated and free. Such is the fact established by the evidence,
which we have carefully
examined.chanroblesvirtualawlibrary chanrobles virtual law library

In connection with the evidence, our attention was called to an


irreconcilable conflict between the transcript of an answer of the
witness Primitivo L. Gonzalez, presented by the appellant as "Annex 1"
to his motion filed in this court (fol. 16 of the Rollo), and the official
transcript, in that while said answer is " Yes, sir," according to the
transcript of the appellant, it is " Certainly, that is not true," according to
the official transcript of the stenographic notes attached to the record.
But it is to be noted that at the continuation of the hearing held on a
subsequent date, in which said witness Primitivo L. Gonzalez was
examined on this contradiction, he said in the course of the rebuttal
evidence of the applicant: " No, sir. I did not answer in that way. I did
not take her hand to make her sign. I did not by any means answer
that question to that effect. I very well remember that fact, because it
affects much the probate of the will." (Fols. 56 and 57 of transcript and
documentary evidence.) chanrobles virtual law library

It appearing from the record that the document Exhibit A is the will of
the deceased Maria Tapia, executed with all the formalities and
solemnities required by the law, the trial court did not commit any error
in admitting it to probate.chanroblesvirtualawlibrary chanrobles virtual
law library

For the purposes of this decision, we deem it unnecessary to pass


upon the question raised by the appellee as to whether or not this
appeal was perfected within the time fixed by the
law.chanroblesvirtualawlibrary chanrobles virtual law library
Attorney Agbunag, seeing that Gabina Raquel could not proceed,
4. Matias vs. Salud (June 23, 1958) instructed Lourdes Samonte to write “Gabina Raquel by Lourdes
Samonte” next to each thumbmark, and thereafter witnesses Lourdes
In re Probate of the Will of Gabina Raquel, deceased. Samonte, Felipa Samala and Modesta Gonzales signed, in that order,
at the foot of the attestation clause and at the left margin of each page.
REYES, J.B.L., J.:
It is to be noted that witnesses Modesta Gonzales, a 64-year old
Appeal from an order of the Court of First Instance of Cavite (issued in woman did not testify, as she was found to be suffering from high
its Special Proceedings No. 5253 on February 10, 1956) denying the blood pressure, and proponent’s expert evidence was to the effect that
probate of the purported will of the late Gabina Raquel. her memory was impaired and unusual excitement might cost her life.

Admittedly the deceased left no ascendants or descendants, and The probate having been opposed by Basilia Salud, a niece of Gabina
according to the proponents she executed the testamentary document Raquel, the case was set for trial. After hearing, Judge Primitivo
on January 27, 1950, in the City of Cavite, in the presence of Modesta Gonzales of the Court of First Instance of Cavite rendered judgment
Gonzales, Felipa Samala, and Lourdes Samonte, who signed as upholding the contentions of the oppositor and denied the document’s
instrumental witnesses, and of attorney Ricardo Agbunag, who admission to probate, principally on the following grounds:
prepared the instrument.
1. That the attestation clause did not state that the
The document in question appears to be composed of three pages. On testatrix and the witnesses signed each and every
the lower half of the second page, preceding the attestation clause page of the will; and while the left margins of each
appears the signature “Gabina Raquel” which is apparently of admitted page exhibit the words “Gabina Raquel by
authenticity. Alongside it is a smudge in violet ink, with blurred ridge Lourdes Samonte,” the attestation does not
lines, claimed by the proponents to be a thumbmark affixed by the express that Lourdes was expressly directed to
testatrix. On the third page, at the end of the attestation clause appear sign for the testatrix;
the signatures appearing on the left margin of each page; and on the 2. That the proponent did not adequately explain the
upper part of each page’s left margin appears a violet ink smudge non-production of witness Modesta Gonzales,
similar to the one previously described, accompanied by the written contrary to sec. 11, Rule 77 of the Rules of Court;
words “Gabina Raquel” and underneath said name “by Lourdes 3. That the alleged signing and thummarking by the
Samonte.” deceased was not done in the presence of the
witnesses, nor did the latter sign in the presence
In the purported testament, most of the properties of the testatrix of Gabina Raquel;
(appraised at over Php 160,000.00) are bequeathed to her niece Aurea 4. That fraud and bad faith attended the execution of
Matias, “in recompense for the services rendered to me for more than the will.
30 years;” some legacies are made o her other nephews and nieces
surnamed Salud and Matias; Aurea Matias is appointed executrix From the adverse decision of the trial court, the proponent appealed
without bond. Below the signature Gabina Raquel set at the foot of the directly to this Court, because the value of the properties involved in
will proper, is an attestation clause in the Spanish language (like the the litigation exceeded Php 50,000.00.
will itself) and reading as follows:
The trial court refused credence to the evidence for the proponents on
the basis of the expert testimony of Captain Jose Fernandez of the
Philippine Constabulary’s
Criminal Laboratory, to the
effect that (1) the
fingerprints appearing at
the end and let margins of
the will were impressed
over the name of the
testatrix, and after the
name was written,
contrary to what the
proponent’s witnesses
asserted; (2) that the
words “Gabina Raquel by
Lourdes Samonte” on the
upper left hand margin of
page two of the wil were
The testamentary
falsified and appear to
capacity of the testatrix Gabina Raquel despite her 90 years of age
have been written over a previous tracing; (3) that the person who
and her disease (herpes zoster), is concealed. It is also undisputed
wrote “Gabina Raquel by Lourdes Samonte” is different from the one
that she mastered Spanish (the language in which the document is
who wrote “Lourdes Samonte” as signature of an attesting witness; (4)
drawn) and that she could sign her name.
that the signature “Lourdes Samonte” on the left margin of page 3 of
The proponent’s evidence is to the effect that the deceased instructed the testament was written only after that of Felipa Samala when the
attorney Agbunag to draft her will; that it was brought to her in the testimony for the proponent was that they were written in the reverse
morning of January 27, 1950; that she had the witnesses summoned order; and (5) that the pen used in signing “Gabina Raquel” at the food
and received them in the “ante sala” of her house; that when the of the will had separated nibs, while the other signatures in the
witnesses were seated around a table with her and attorney Agbunag, document were written with a round point pen, again contrary to the
the will was read by the latter; that Gabina Raquel manifested contention for the proponent that only one pen was used.
conformity thereto and thumbmarked the foot of the document and the
After careful consideration of the testimony on record, we are of the
left margin of each page. Allegedly upon Agbunag’s insistence, she
opinion that the facts adverted to by the expert for the contestant do
attempted to sign with his fountain pen, but was only able to affix the
not clearly support the conclusions drawn by him. Thus, his assertion
signature at the end of the testamentary dispositions (in the lower half
that the fingerprints were affixed after writing the name of the testatrix
of page two) because immediately after, she dropped the pen,
appears to be an inference drawn from the fact that the ink of the
grasping her right shoulder and complaining of pain. After 20 minutes,
writing failed to spread along the ridge lines of the fingerprints. This
conclusion obviously failed to take into account the fact that the hypertension, that she was in the danger zone, and might collapse and
evidence is that some 10 or 20 minutes elapsed between the affixing of die as a consequence of a little excitement on her part. The trial court,
the fingerprints and the writing of the marginal signatures, due to the having expressly made of record that “it would not like to assume
fact that they were not written until after a long wait for the testatrix’s responsibility for whatever might happen to this woman”, could not
attack of paint to subside. There was sufficient time for the fingerprint logically hold proponent to account for not risking Modesta’s death. At
(which was made in rubber stamp ink) to dry, and recognized any rate, contestants were free to call her as their own witness, had
authorities on the matter point out that “ink lines over rubber stamps they felt justified in so doing; so that no unfavorable inference can be
will spread out if the stamp is not dry”; and “if the stamp impression is drawn from the fact that Modesta Gonzalez was not called by the
allowed to dry thoroughly before the writing is written over it, the ink will proponent to the witness stand.
not run out as it does on a damp ink line”. To such effect, the only
composition of the rubber stamp ink no doubt contributes. Thus, while Finally, the contestant urges that the fingermark of the testatrix cannot
the spreading out or running out of the writing ink along the stamping be regarded as her valid signature since it does not show distinct
ink lines proves that the writing was made later, the absence of spread identifying ridge lines; and hence, that the attestation clause,
does not prove that stamping ink lines were made after the writing was transcribed earlier in this opinion, should be held defective because it
done. fails to state that Lourdes Samonte signed for the testator. This Court
has repeatedly held that the legal requisite that the will should be
As to the alleged forgery of Samonte’s signature in page 3, the lighter signed by the testator is satisfied by a thumbprint or other mark affixed
shade of the underlying characters strongly indicates that the by him; and that where such mark is affixed by the decedent, it is
overwriting was made to correct ink failure or other imperfection in the unnecessary to state in the attestation clause that another person
first writing. The expert’s opinion is also discredited by the fact that wrote the testator’s name at his request. While in some of these cases
Samonte being available to the proponent (since she testified in favor the signing by mark was described in the will or in the attestation
of the will), there would be no sense in forging Samonte’s signature, clause, it does not appear that the Court ever held that the absence of
when an authentic one was at proponent’s disposal all the time. And such description is a fatal defect.
assuming it to be true that in page 3 of the will Exh. “D”, Samonte
signed after Samala, while in the other pages she had signed ahead, Appellant relies on the case of Garcia vs. Lacuesta, G.R. L-4067, Nov.
such occasional departure from the order usually followed does not 29, 1951, wherein this Court denied probate holding that a will signed
signify that the execution of the testament was in any way abnormal or with a cross written after the testator’s name is not a sufficient
fraudulent. As to the alleged use of two different pens, expert signature. But in that case no showing was made that the cross mark
Fernandez’ conclusions are backed more by opinion than by facts, was the testator’s habitual signature nor was any explanation given
besides being contradicted by expert Espinosa, and the proponent’s why he should use a cross when he knew how to sign. In the case now
other witnesses. before us, it was shown that the herpes zoster that afflicted the right
arm and shoulder of testatrix made writing a difficult and painful act, to
The basis for the conclusions of expert Fernandez, who admitted the extent that, after writing one signature on the second page, she
having been engaged on a contingent basis, not being satisfactorily dropped the pen because of an attack of pain that lasted many minutes
established and his testimony being contradicted by the two witnesses and evidently discourage attempts to sign.
to the will and the expert for the defense, the lower court erred in
considering that the preponderance of the evidence lay with As to the clarity of the ridge impressions, it is so dependent on aleatory
contestants. circumstances (consistency of the ink, overinking, slipping of the finger,
etc.) as to require a dexterity that can be expected of very few persons;
“We do not venture to impute bias to the experts introduced and we do not believe testators should be required to possess the skill
during the trial, but we hasten to state that the positive of trained officers. It is to be conceded that where a testator employs
testimony of the three attesting witnesses ought to prevail an unfamiliar way of signing, and both the attestation clause and the
over the expert opinions which cannot be mathematically will are silent on the matter, such silence is a factor to be considered
precise but which on the contrary, are ‘subject to inherent against the authenticity of the testament; but the failure to describe the
infirmities’.x x x” unusual signature by itself alone is not sufficient to refuse probate
when the evidence for the proponent fully satisfies the court (as it does
“Speculations on these matters should give way to the satisfy us in this case) that the will was executed and witnessed as
positive declarations of the attesting witnesses. The law required by law.
impliedly recognizes the almost conclusive weight of the
testimony of attesting witnesses when it provides that ‘if the WHEREFORE, the judgment appealed from is reversed, and the
will is contested, all the subscribing witnesses present in the document Exh. “D” ordered admitted to probate. Let the records be
Philippines and not insane, must be produced and returned to the court of origin for further proceedings in accordance
examined, and the death, absence, or insanity or any of with this opinion. Costs against appellees.
them must be satisfactorily shown to the court.’ (Section 11,
Rule 77, Rules of Court.)” (Roxas vs. Roxas). So Ordered.

We are aware that the bequest of the greater portion of decedent’s


estate in favor of proponent Aurea Matias is contained in the first page 5. Garcia vs. Lacuesta (November 29, 1951)
of the contested will, while the only authentic signature of the
deceased appeared in the second page; but the appointment of PARAS, C.J.:
proponent as executrix of the will without bon (con relevacion de
fianza) appearing in the very same page (page 2) fully bespeaks the
This is an appeal from a decision of the Court of Appeals disallowing
affection of the testatrix for the proponent, who had lived with the the will of Antero Mercado dated January 3, 1943. The will is written in
deceased, helped and served her for 30 years, and morally confirms the Ilocano dialect and contains the following attestation clause:
the contested bequest.

The court below likewise held against the proponent that fact that the We, the undersigned, by these presents to declare that the foregoing
subscribing witnesses Modesta Gonzalez was not a witness; claiming testament of Antero Mercado was signed by himself and also by us
that such failure was a violation of Sec. 11, Rule 77 of the Rules of 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
Court. But while Modesta Gonzalez was not placed on the stand, the
attestation clause; this will is written in Ilocano dialect which is spoken
proponent made no secret of her whereabouts, nor of the reason why
and understood by the testator, and it bears the corresponding number
she was not asked to testify; the record shows that both Dr. Bellaflor in letter which compose of three pages and all them were signed in the
and Dr. Sanchez agreed that Gonzales was suffering from presence of the testator and witnesses, and the witnesses in the
presence of the testator and all and each and every one of us Said petition, after due notice was given, was brought on for hearing
witnesses. on the 18th day of September, 1909. Timoteo Paez declared that he
was 48 years of age; that he had known the said Tomasa Elizaga Yap
Caong; that she had died on the 11th day of August, 1909; that before
In testimony, whereof, we sign this statement, this the third day of
her death she had executed a last will and testament; that he was
January, one thousand nine hundred forty three, (1943) A.D.
present at the time of the execution of the same; that he had signed
the will as a witness; that Anselmo Zacarias and Severo Tabora had
also signed said will as witnesses and that they had signed the will in
Sgd.) NUMERIANO EVANGELISTA (Sgd.) "ROSENDA CORTES the presence of the deceased.

Sgd.) BIBIANA ILLEGIBLE


Pablo Agustin also declared as a witness and said that he was 40
years of age; that he knew Tomasa Elizaga Yap Caong during her
lifetime; that she died on the 11th day of August, 1909, in the city of
The will appears to have been signed by Atty. Florentino Javier who Manila; that before her death she had executed a last will and
wrote the name of Antero Mercado, followed below by "A reugo del testament; that he was present at the time said last will was executed;
testator" and the name of Florentino Javier. Antero Mercado is alleged that there were also present Timoteo Paez and Severo Tabora and a
to have written a cross immediately after his name. The Court of person called Anselmo; that the said Tomasa Elizaga Yap Caong
Appeals, reversing the judgement of the Court of First Instance of signed the will in the presence of the witnesses; that he had seen her
Ilocos Norte, ruled that the attestation clause failed (1) to certify that sign the will with his own eyes; that the witnesses had signed the will in
the will was signed on all the left margins of the three pages and at the the presence of the said Tomasa Elizaga Yap Caong and in the
end of the will by Atty. Florentino Javier at the express request of the presence of each other; that the said Tomasa Elizaga Yap Caong
testator in the presence of the testator and each and every one of the signed the will voluntarily, and in his judgment, she was in the
witnesses; (2) to certify that after the signing of the name of the possession of her faculties; that there were no threats or intimidation
testator by Atty. Javier at the former's request said testator has written used to induce her to sign the will; that she signed it voluntarily.
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 No further witnesses were called and there was no further opposition
presence of the testator and of each other. presented to the legalization of the said will.

In our opinion, the attestation clause is fatally defective for failing to After hearing the foregoing witnesses, the Honorable A. S. Crossfield,
state that Antero Mercado caused Atty. Florentino Javier to write the judge, on the 29th day of September, 1909, ordered that the last will
testator's name under his express direction, as required by section 618 and testament of Tomasa Elizaga Yap Caong be allowed and admitted
of the Code of Civil Procedure. The herein petitioner (who is appealing to probate. The will was attached to the record and marked Exhibit A.
by way of certiorari from the decision of the Court of Appeals) argues, The court further ordered that one Yap Tua be appointed as executor
however, that there is no need for such recital because the cross of the will, upon the giving of a bond, the amount of which was to be
written by the testator after his name is a sufficient signature and the fixed later.
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 From the record it appears that no further proceedings were had until
having been held sufficient by this Court in the cases of De the 28th of February, 1910, when Yap Ca Kuan and Yap Ca Llu
Gala vs. Gonzales and Ona, 53 Phil., 104; Dolar vs. Diancin, 55 Phil., appeared and presented a petition, alleging that they were interested
479; Payad vs. Tolentino, 62 Phil., 848; Neyra vs. Neyra, 76 Phil., 296 in the matters of the said will and desired to intervene and asked that a
and Lopez vs. Liboro, 81 Phil., 429. guardian ad litem be appointed to represent them in the cause.

It is not here pretended that the cross appearing on the will is the usual On the 1st day of March, 1910, the court appointed Gabriel La O as
signature of Antero Mercado or even one of the ways by which he guardian ad litem of said parties. Gabriel La O accepted said
signed his name. After mature reflection, we are not prepared to liken appointment, took the oath of office and entered upon the performance
the mere sign of the cross to a thumbmark, and the reason is obvious. of his duties as guardian ad litem of said parties. On the 2d day of
The cross cannot and does not have the trustworthiness of a March, 1910, the said Gabriel La O appeared in court and presented a
thumbmark. motion in which he alleged, in substance:

What has been said makes it unnecessary for us to determine there is First. That the will dated the 11th day of August, 1909, and admitted to
a sufficient recital in the attestation clause as to the signing of the will probate by order of the court on the 29th day of September, 1909, was
by the testator in the presence of the witnesses, and by the latter in the null, for the following reasons:
presence of the testator and of each other.

(a) Because the same had not been authorized nor signed by the
Wherefore, the appealed decision is hereby affirmed, with against the witnesses as the law prescribes.
petitioner. So ordered.

(b) Because at the time of the execution of the will, the said Tomasa
Elizaga Yap Caong was not then mentally capacitated to execute the
6. Yap Tua vs. Yap Ca Kuan (September 1, 1914) same, due to her sickness.

JOHNSON, J.: (c) Because her signature to the will had been obtained through fraud
and illegal influence upon the part of persons who were to receive a
It appears from the record that on the 23d day of August, 1909, one benefit from the same, and because the said Tomasa Elizaga Yap
Perfecto Gabriel, representing the petitioner, Yap Tua, presented a Caong had no intention of executing the same.
petition in the Court of First Instance of the city of Manila, asking that
the will of Tomasa Elizaga Yap Caong be admitted to probate, as the Second. That before the execution of the said will, which they alleged
last will and testament of Tomasa Elizaga Yap Caong, deceased. It to be null, the said Tomasa Elizaga Yap Caong had executed another
appears that the said Tomasa Elizaga Yap Caong died in the city of will, with all the formalities required by law, upon the 6th day of August,
Manila on the 11th day of August, 1909. Accompanying said petition 1909.
and attached thereto was the alleged will of the deceased. It appears
that the will was signed by the deceased, as well as Anselmo Zacarias,
Severo Tabora, and Timoteo Paez. Third. That the said Yap Ca Kuan and Yap Ca Llu were minors and
that, even though they had been negligent in presenting their
opposition to the legalization of the will, said negligence was signed the will or not; that he was not sure whether Tomasa Elizaga
excusable, on account of their age. Yap Caong could see the table on which the will was written at the time
it was signed or not; that there were many people in the house; that he
remembered the names of Pedro and Lorenzo; that he could not
Upon the foregoing facts the court was requested to annul and set
remember the names of any others; that the will remained on the table
aside the order of the 29th day of September, 1909, and to grant to
after he signed it; that after he signed the will he went to the room
said minors an opportunity to present new proof relating to the due
where Tomasa was lying; that the will was left on the table outside; that
execution of said will. Said petition was based upon the provisions of
Tomasa was very ill; that he heard the people asking Tomasa to sign
section 113 of the Code of Procedure in Civil Actions.
the will after he was (the witness) had signed it; that he saw Paez sign
the will, that he could not remember whether Anselmo Zacarias had
While it is not clear from the record, apparently the said minors in their signed the will, because immediately after he and Paez signed it, he
petition for a new trial, attached to said petition the alleged will of left because he was hungry; that the place where the table was located
August 6, 1909, of the said Tomasa Elizaga Yap Caong, and the was in the same house, on the floor, about two steps down from the
affidavits of Severo Tabora, Clotilde and Cornelia Serrano. floor on which Tomasa was.

Upon the 10th day of March, 1910, upon the hearing of said motion for Rufino R. Papa, was called as a witness for the purpose of supporting
a rehearing, the Honorable A. S. Crossfield, judge, granted said motion the allegation that Tomasa Elizaga Yap Caong was mentally
and ordered that the rehearing should take place upon the 18th day of incapacitated to make the will dated August 11, 1909 (Exhibit A). Papa
March, 1910, and directed that notice should be given to the petitioners declared that he was a physician; that he knew Tomasa Elizaga Yap
of said rehearing and to all other persons interested in the will. At the Caong; that he had treated her in the month of August; that he visited
rehearing a number of witnesses were examined. her first on the 8th day of August; that he visited her again on the 9th
and 10th days of August; that on the first visit he found the sick woman
completely weak — very weak from her sickness, in the third stage of
It will be remembered that one of the grounds upon which the new trial tuberculosis; that she was lying in bed; that on the first visit he found
was requested was that the deceased, Tomasa Elizaga Yap Caong, her with but little sense, the second day also, and on the third day she
had not signed the will (Exhibit A) of the 11th of August, 1909; that in
had lost all her intelligence; that she died on the 11th of August; tat he
support of that allegation, the protestants, during the rehearing, was requested to issue the death certificate; that when he asked her
presented a witness called Tomas Puzon. Puzon testified that he was (Tomasa) whether she was feeling any pain or anything of that kind,
a professor and an expert in handwriting, and upon being shown the she did not answer at all; that she was in a condition of stupor,
will (of August 11, 1909) Exhibit A, testified that the name and surname induced, as he believed, by the stage of uraemia from which she was
on Exhibit A, in his judgment were written by two different hands, suffering.
though the given name is the same as that upon Exhibit 1 (the will of
August 6, 1909), because he found in the name "Tomasa" on Exhibit A
a similarity in the tracing to the "Tomasa" in Exhibit 1; that comparing Anselmo Zacarias, who had signed the will of August 11, 1909, was
the surname on Exhibit A with the surname on Exhibit 1 he found that also called as a witnesses during the rehearing. He testified that he
the character of the writing was thoroughly distinguished and different had known Tomasa Elizaga Yap Caong since he was a child; that
by the tracing and by the direction of the letters in the said two exhibits; Tomasa was dead; that he had written the will exhibit A; that it was all
that from his experience and observation he believed that the name in his writing except the last part, which was written by Carlos Sobaco;
"Tomasa" and "Yap Caong," appearing in the signature on Exhibit A that he had written the will Exhibit A at the request of the uncle of
were written by different person. Tomasa; that Lorenzo, the brother of the deceased, was the one who
had instructed him as to the terms of the will ; that the deceased had
not spoken to him concerning the terms of the will; that the will was
Puzon, being cross-examined with reference to his capacity as an written in the dining room of the residence of the deceased; that
expert in handwriting, testified that while he was a student in the
Tomasa was in another room different from that in which the will was
Ateneo de Manila, he had studied penmanship; that he could not tell written; that the will was not written in the presence of Tomasa; that he
exactly when that was, except that he had concluded his course in the signed the will as a witness in the room where Tomasa was lying; that
year 1882; that since that time he had been a telegraph operator for
the other witnesses signed the will in the same room that when he
seventeen years and that he had acted as an expert in hand- writing in went into the room where the sick woman was (Tomasa Elizaga Yap
the courts in the provinces. Caong) Lorenzo had the will in his hands; that when Lorenzo came to
the bed he showed the will to his sister (Tomasa) and requested her to
Gabriel La O was called as a witness during the rehearing and testified sign it; that she was lying stretched out on the bed and two women,
that he had drawn the will of the 6th of August, 1909, at the request of who were taking care of her, helped her to sit up, supporting her by
Tomasa Elizaga Yap Caong; that it was drawn in accordance with her lacing their hands at her back; that when she started to write her name,
request and under her directions; that she had signed it; that the same he withdrew from the bed on account of the best inside the room; when
had been signed by three witnesses in her presence and in the he came back again to the sick bed the will was signed and was again
presence of each other; that the will was written in her house; that she in the hands of Lorenzo; that he did not see Tomasa sign the will
was sick and was lying in her bed, but that she sat up to sign the will; because he withdrew from the room; that he did not know whether
that she signed the will with great difficulty; that she was signed in her Tomasa had been informed of the contents of the will or not; he
right mind. supposed she must have read it because Lorenzo turned the will over
to her; that when Lorenzo asked her to sign the will, he did not know
what she said — he could not hear her voice; that he did not know
The said Severo Tabora was also called as a witness again during the whether the sick woman was him sign the will or not; that he believed
rehearing. He testified that he knew Tomasa Elizaga Yap Caong that Tomasa died the next day after the will had been signed; that the
during her lifetime; that she was dead; that his signature as a witness other two witnesses, Timoteo Paez and Severo Tabora, had signed the
to Exhibit A (the will of August 11, 1909) was placed there by him; that will in the room with the sick woman; that he saw them sign the will and
the deceased, Tomasa Elizaga Yap Caong, became familiar with the that they saw him sign it; that he was not sure whether the testatrix
contents of the will because she signed it before he (the witness) did; could have seen them at the time they signed the will or not; that there
that he did not know whether anybody there told her to sign the will or was a screen before the bed; that he did not think that Lorenzo had
not; that he signed two bills; that he did not know La O; that he did not been giving instructions as to the contents of the will; that about ten or
believe that Tomasa had signed the will (Exhibit A) before he arrived at fifteen minutes elapsed from the time Lorenzo handed the will to
the house; that he was not sure that he had seen Tomasa Elizaga Yap Tomasa before she started to sign it; that the pen with which she
Caong sign Exhibit A because there were many people and there was signed the will as given to her and she held it.
a screen at the door and he could not see; that he was called a a
witness to sign the second will and was told by the people there that it
was the same as the first; that the will (Exhibit A) was on a table, far Clotilde Mariano testified that he was a cigarette maker; that he knew
from the patient, in the house but outside the room where the patient Tomasa Elizaga Yap Caong and that she was dead; that she had
was; that the will was signed by Paez and himself; that Anselmo made two wills; that the first one was written by La O and the second
Zacarias was there; that he was not sure whether Anselmo Zacarias by Zacarias; that he was present at the time Zacarias wrote the second
one; that he was present when the second will was taken to Tomasa III. The court erred in declaring that the signature of the deceased
for signature; that Lorenzo had told Tomasa that the second will was Tomasa Yap Caong in the first will, Exhibit 1, is identical with that
exactly like the first; that Tomasa said she could not sign it. which appears in the second will, Exhibit A.

On cross examination he testified that there was a lot of visitors there; IV. The court erred in declaring that the will, Exhibit A, was executed in
that Zacarias was not there; that Paez and Tabora were there; that he accordance with the law.
had told Tomasa that the second will was exactly like the first.
With reference to the first assignment of error, to wit, that undue
During the rehearing Cornelia Serrano and Pedro Francisco were also influence was brought to bear upon Tomasa Elizaga Yap Caong in the
examined as witnesses. There is nothing in their testimony, however, execution of her will of August 11th, 1909 (Exhibit A), the lower court
which in our opinion is important. found that no undue influence had been exercised over the mind of the
said Tomasa Elizaga Yap Caong. While it is true that some of the
witnesses testified that the brother of Tomasa, one Lorenzo, had
In rebuttal Julia e la Cruz was called as a witness. She testified that
attempted to unduly influence her mind in the execution of he will, upon
she was 19 years of age; that she knew Tomasa Elizaga Yap Caong
the other hand, there were several witnesses who testified that
during her lifetime; that she lived in the house of Tomasa during the
Lorenzo did not attempt, at the time of the execution of the will, to
last week of her illness; that Tomasa had made two wills; that she was
influence her mind in any way. The lower court having had an
present when the second one was executed; that a lawyer had drawn
opportunity to see, to hear, and to note the witnesses during their
the will in the dining room and after it had been drawn and everything
examination reached the conclusion that a preponderance of the
finished , it was taken to where Doña Tomasa was, for her signature;
evidence showed that no undue influence had been used. we find no
that it was taken to her by Anselmo Zacarias; that she was present at
good reason in the record for reversing his conclusions upon that
the time Tomasa signed the will that there were many other people
question.
present also; that she did not see Timoteo Paez there; that she saw
Severo Tabora; that Anselmo Zacarias was present; that she did not
hear Clotilde Mariano ask Tomasa to sign the will; that she did not hear With reference to the second assignment of error to wit, that Tomasa
Lorenzo say to Tomasa that the second will was the same sa the first; Elizaga Yap Caong was not of sound mind and memory at the time of
that Tomasa asked her to help her to sit up and to put a pillow to her the execution of the will, we find the same conflict in the declarations of
back when Zacarias gave her some paper or document and asked her the witnesses which we found with reference to the undue influence.
to sign it; that she saw Tomasa take hold of the pen and try to sign it While the testimony of Dr. Papa is very strong relating to the mental
but she did not see the place she signed the document, for the reason condition of Tomasa Elizaga Yap Caong, yet, nevertheless, his
that she left the room; that she saw Tomasa sign the document but did testimony related to a time perhaps twenty-four hours before the
not see on what place on the document she signed; and that a notary execution of the will in question (Exhibit A). Several witnesses testified
public came the next morning; that Tomasa was able to move about in that at the time the will was presented to her for her signature, she was
the bed; that she had seen Tomasa in the act of starting to write her of sound mind and memory and asked for a pen and ink and kept the
signature when she told her to get her some water. will in her possession for ten or fifteen minutes and finally signed it.
The lower court found that there was a preponderance of evidence
sustaining the conclusion that Tomasa Elizaga Yap Caong was of
Yap Cao Quiang was also called as a witness in rebuttal. He testified
sound mind and memory and in the possession of her faculties at the
that he knew Tomasa Elizaga Yap Caong and knew that she had
time she signed this will. In view of the conflict in the testimony of the
made a will; that he saw the will at the time it was written; that he saw
witnesses and the finding of the lower court, we do not feel justified in
Tomasa sign it on her head; that he did not hear Lorenzo ask Tomasa
reversing his conclusions upon that question.
to sign the will; that Lorenzo had handed the will to Tomasa to sign;
that he saw the witnesses sign the will on a table near the bed; that the
table was outside the curtain or screen and near the entrance to the With reference to the third assignment of error, to wit, that the lower
room where Tomasa was lying. court committed an error in declaring that the signature of Tomasa
Elizaga Yap Caong, on her first will (August 6, 1909, Exhibit 1), is
identical with that which appears in the second will (August 11, 1909,
Lorenzo Yap Caong testified as a witness on rebuttal. He said that he
Exhibit A), it may be said:
knew Anselmo Zacarias and that Zacarias wrote the will of Tomasa
Elizaga Yap Caong; that Tomasa had given him instructions; that
Tomasa had said that she sign the will; that the will was on a table First. That whether or not Tomasa Elizaga Yap Caong executed the
near the bed of Tomasa; that Tomasa, from where she was lying in the will of August 6, 1909 (Exhibit 1), was not the question presented to
bed, could seethe table where the witnesses had signed the will. the court. The question presented was whether or not she had duly
executed the will of August 11, 1909 (Exhibit A).
During the rehearing certain other witnesses were also examined; in
our opinion, however, it is necessary to quote from them for the reason Second. There appears to be but little doubt that Tomasa Elizaga Yap
that their testimony in no way affects the preponderance of proof Caong did execute the will of August 6, 1909. Several witnesses
above quoted. testified to that fact. The mere fact, however, that she executed a
former will is no proof that she did not execute a later will. She had a
perfect right, by will, to dispose of her property, in accordance with the
At the close of the rehearing the Honorable A. S. Crossfield, judge, in
provisions of law, up to the very last of moment her life. She had a
an extended opinion, reached the conclusion that the last will and
perfect right to change, alter, modify or revoke any and all of her
testament of Tomasa Elizaga Yap Caong, which was attached to the
former wills and to make a new one. Neither will the fact that the new
record and marked Exhibit A was the last will and testament of the said
will fails to expressly revoke all former wills, in any way sustain the
Tomasa Elizaga Yap Caong and admitted it to probate and ordered
charge that she did not make the new will.
that the administrator therefore appointed should continue as such
administrator. From that order the protestants appealed to this court,
and made the following assignments of error: Third. In said third assignment of error there is involved in the
statement that "The signature of Tomasa Elizaga Yap Caong, in her
first will (Exhibit 1) was not identical with that which appears in her
I. The court erred in declaring that the will, Exhibit A, was executed by
second will (Exhibit A)" the inference that she had not signed the
the deceased Tomasa Yap Caong, without the intervention of any
second will and all the argument of the appellants relating to said third
external influence on the part of other persons.
assignment of error is based upon the alleged fact that Tomasa
Elizaga Yap Caong did not sign Exhibit A. Several witnesses testified
II. The court erred in declaring that the testator had clear knowledge that they saw her write the name "Tomasa." One of the witnesses
and knew what she was doing at the time of signing the will. testified that she had written her full name. We are of the opinion, and
we think the law sustains our conclusion, that if Tomasa Elizaga Yap
Caong signed any portion of her name tot he will, with the intention to
sign the same, that the will amount to a signature. It has been held do not see or hear the witnesses, to the conclusions of the trial courts
time and time again that one who makes a will may sign the same by who had that opportunity.
using a mark, the name having been written by others. If writing a mark
simply upon a will is sufficient indication of the intention of the person
Upon a full consideration of the record, we find that a preponderance
to make and execute a will, then certainly the writing of a portion or all
of the proof shows that Tomasa Elizaga Yap Caong did execute, freely
of her name ought to be accepted as a clear indication of her intention
and voluntarily, while she was in the right use of all her faculties, the
to execute the will. (Re Goods of Savory, 15 Jur., 1042; Addy vs. Grix,
will dated August 11, 1909 (Exhibit A). Therefore the judgment of the
8 Ves. Jr., 504; Baker vs. Dening, 8 Ad. and El., 94 Long vs. Zook, 13
lower court admitting said will to probate is hereby affirmed with costs.
Penn., 400; Vernon vs. Kirk, 30 Penn., 218; Cozzen's Will, 61 Penn.,
196; Re Goods of Emerson, L. R. 9 Ir., 443; Main vs. Ryder, 84 Penn.,
217.) 7. Barut vs. Cabacungan (February 12, 1912)

We find a very interesting case reported in 131 Pennsylvania State, MORELAND, J.:
220 (6 L. R. A., 353), and cited by the appellees, which was known as
"Knox's Appeal." In this case one Harriett S. Knox died very suddenly
on the 17th of October, 1888, at the residence of her father. After her This case is closely connected with the case of Faustino Cabacungan
vs. Pedro Barut and another, No. 6284,1 just decided by this court,
death a paper was found in her room, wholly in her handwriting, written
with a lead pencil, upon three sides of an ordinary folded sheet of note wherein there was an application for the probate of an alleged last will
paper and bearing the signature simply of "Harriett." In this paper the and testament of the same person the probate of whose will is involved
in this suit.
deceased attempted to make certain disposition of her property. The
will was presented for probate. The probation was opposed upon the
ground that the same did not contain the signature of the deceased. This appeal arises out of an application on the part of Pedro Barut to
That was the only question presented to the court, whether the probate the last will and testament of Maria Salomon, deceased. It is
signature, in the form above indicated, was a sufficient signature to alleged in the petition of the probate that Maria Salomon died on the
constitute said paper the last will and testament of Harriett S. Knox. It 7th day of November, 1908, in the pueblo of Sinait, Ilocos Sur, leaving
was admitted that the entire paper was in the handwriting of the a last will and testament bearing date March 2, 1907. Severo Agayan,
deceased. In deciding that question, Justice Mitchell said: Timotea Inoselda, Catalino Ragasa, and A. M. Jimenez are alleged to
have been witnesses to the execution thereof. By the terms of said will
The precise case of a signature by the first name only, does not Pedro Barut received the larger part of decedent's property.
appear to have arisen either in England or the United States; but the
principle on which the decisions already referred to were based, The original will appears on page 3 of the record and is in the Ilocano
especially those in regard to signing by initials only, are equally dialect. Its translation into Spanish appears at page 11. After disposing
applicable to the present case, and additional force is given to them by of her property the testatrix revoked all former wills by her made. She
the decisions as to what constitutes a binding signature to a contract. also stated in said will that being unable to read or write, the same had
(Palmer vs. Stephens, 1 Denio, 478; Sanborne vs. Flager, 9 Alle, 474; been read to her by Ciriaco Concepcion and Timotea Inoselda and that
Weston vs. Myers, 33 Ill., 424; Salmon Falls, etc. Co. vs. Goddard, 14 she had instructed Severo Agayan to sign her name to it as testatrix.
How. (U. S.), 446.)
The probate of the will was contested and opposed by a number of the
The man who cannot write and who is obliged to make his mark simply relatives of the deceased on various grounds, among them that a later
therefor, upon the will, is held to "sign" as effectually as if he had will had been executed by the deceased. The will referred to as being
written his initials or his full name. It would seem to be sufficient, under a later will is the one involved in case No. 6284 already referred to.
the law requiring a signature by the person making a will, to make his Proceeding for the probate of this later will were pending at the time.
mark, to place his initials or all or any part of his name thereon. In the The evidence of the proponents and of the opponents was taken by
present case we think the proof shows, by a large preponderance, that the court in both cases for the purpose of considering them together.
Tomasa Elizaga Yap Caong, if she did not sign her full name, did at
least sign her given name "Tomasa," and that is sufficient to satisfy the
statute. 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
With reference to the fourth assignment of error, it may be said that the and on her behalf looked more like the handwriting of one of the other
argument which was preceded is sufficient to answer it also. 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
During the trial of the cause the protestants made a strong effort to
show that Tomasa Elizaga Yap Caong did not sign her name in the uncontradicted testimony of all the witnesses to the will that the
presence of the witnesses and that they did not sign their names in 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.
their presence nor in the presence of each other. Upon that question
there is considerable conflict of proof. An effort was made to show that It is immaterial who writes the name of the testatrix provided it is
the will was signed by the witnesses in one room and by Tomasa in written at her request and in her presence and in the presence of all
the witnesses to the execution of the will.
another. A plan of the room or rooms in which the will was signed was
presented as proof and it was shown that there was but one room; that
one part of the room was one or two steps below the floor of the other; The court seems , by inference at least, to have had in mind that under
that the table on which the witnesses signed the will was located upon the law relating to the execution of a will it is necessary that the person
the lower floor of the room. It was also shown that from the bed in who signs the name of the testatrix must afterwards sign his own
which Tomasa was lying, it was possible for her to see the table on name; and that, in view of the fact that, in the case at bar, the name
which the witnesses signed the will. While the rule is absolute that one signed below that of the testatrix as the person who signed her name,
who makes a will must sign the same in the presence of the witnesses being, from its appearance, not the same handwriting as that
and that the witnesses must sign in the presence of each other, as well constituting the name of the testatrix, the will is accordingly invalid,
as in the presence of the one making the will, yet, nevertheless, the such fact indicating that the person who signed the name of the
actual seeing of the signatures made is not necessary. It is sufficient if testatrix failed to sign his own. We do not believe that this contention
the signatures are made where it is possible for each of the necessary can be sustained. Section 618 of the Code of Civil Procedure reads as
parties, if they desire to see, may see the signatures placed upon the follows:
will.
No will, except as provided in the preceding section, shall be valid to
In cases like the present where there is so much conflict in the proof, it pass any estate, real or personal, nor charge or effect the same,
is very difficult for the courts to reach conclusions that are absolutely unless it be in writing and signed by the testator, or by the testator's
free from doubt. Great weight must be given by appellate courts who name written by some other person in his presence, and by his
expenses direction, and attested and subscribed by three or more Where a testator does not know, or is unable for any reason, to sign
credible witnesses in the presence of the testator and of each. . . . 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
This is the important part of the section under the terms of which the
the request of the testator.
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 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 attestation shall state the fact that the testator signed the will, or
the name of the testator to the will actually failed to sign such name but
caused it to be signed by some other person, at his express direction,
instead signed his own thereto. The decision in that case related only
in the presence of three witnesses, and that they attested and
to that question.
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 Aside from the presentation of an alleged subsequent will the
section provided. 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
From these provisions it is entirely clear that, with respect to
proofs in this case. Upon the facts, therefore, the will must be
the validity of the will, it is unimportant whether the person who writes
probated. As to the defense of a subsequent will, that is resolved in
the name of the testatrix signs his own or not. The important thing is
case No. 6284 of which we have already spoken. We there held that
that it clearly appears that the name of the testatrix was signed at her
said later will not the will of the deceased.
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 The judgment of the probate court must be and is hereby reversed and
matter that the one who signs the testator's name signs also his own; that court is directed to enter an order in the usual form probating the
but that it is not essential to the validity of the will. Whether one parson will involved in this litigation and to proceed with such probate in
or another signed the name of the testatrix in this case is absolutely accordance with law.
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
8. Balonan vs. Abellana (August 31, 1960)
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 LABARADOR, J.:
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. Appeal from a decision of the Court of First Instance of Zamboanga
City admitting to probate the will of one Anacleta Abellana. The case
was originally appealed to the Court of Appeals where the following
Nor is such requirement found in any other branch of the law. The assignment of error is made:
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 The appellants respectfully submit that the Trial Court erred in holding
that the supposed testament, Exh. "A", was signed in accordance with
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 law; and in admitting the will to probate.
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 In view of the fact that the appeal involves a question of law the said
execution by the principal. But as a matter of essential validity of the court has certified the case to us.
document, it is unnecessary. The main thing to be established in the
execution 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 The facts as found by the trial court are as follows:
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 It appears on record that the last Will and Testament (Exhibit "A"),
omits to sign his own name as it can when he actually signs. To hold a which is sought to be probated, is written in the Spanish language and
will invalid for the lack of the signature of the person signing the name consists of two (2) typewritten pages (pages 4 and 5 of the record)
of the principal is, in the particular case, a complete abrogation of the double space. The first page is signed by Juan Bello and under his
law of wills, as it rejects and destroys a will which the statute expressly name appears typewritten "Por la testadora Anacleta Abellana,
declares is valid. residence Certificate A-1167629, Enero 20, 1951, Ciudad de
Zamboanga', and on the second page appears the signature of three
There have been cited three cases which it is alleged are in opposition (3) instrumental witnesses Blas Sebastian, Faustino Macaso and
to the doctrine which we have herein laid down. They are Ex Rafael Ignacio, at the bottom of which appears the signature of T. de
parte Santiago (4 Phil. Rep., 692), Ex parte Arcenas (4 Phil. Rep., los Santos and below his signature is his official designation as the
700), and Guison vs.Concepcion (5 Phil. Rep., 551). Not one of these notary public who notarized the said testament. On the first page on
cases is in point. The headnote in the case last above stated gives an the left margin of the said instrument also appear the signatures of the
indication of what all of cases are and the question involved in each instrumental witnesses. On the second page, which is the last page of
one of them. It says: said last Will and Testament, also appears the signature of the three
(3) instrumental witnesses and on that second page on the left margin
appears the signature of Juan Bello under whose name appears
The testatrix was not able to sign it for her. Instead of writing her name handwritten the following phrase, "Por la Testadora Anacleta Abellana'.
he wrote his own upon the will. Held, That the will was not duly The will is duly acknowledged before Notary Public Attorney Timoteo
executed. de los Santos. (Emphasis supplied)

All of the above cases are precisely of this character. Every one of The appeal squarely presents the following issue: Does the signature
them was a case in which the person who signed the will for the of Dr. Juan A. Abello above the typewritten statement "Por la
testator wrote his own name to the will instead of writing that of the Testadora Anacleta Abellana . . ., Ciudad de Zamboanga," comply with
testator, so that the testator's name nowhere appeared attached to the the requirements of law prescribing the manner in which a will shall be
will as the one who executed it. The case of Ex parte Arcenas contains executed?
the following paragraph:
The present law, Article 805 of the Civil Code, in part provides as It appearing that the above provision of the law has not been complied
follows: with, we are constrained to declare that the said will of the deceased
Anacleta Abellana may not be admitted to probate.
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 WHEREFORE, the decision appealed from is hereby set aside and the
some other person in his presence, and by his express direction, and petition for the probate of the will denied. With costs against petitioner.
attested and subscribed by three or more credible witness in the
presence of the testator and of one another. (Emphasis supplied.)
9. In re Will of Siason (March 23, 1908)

The clause "must be subscribed at the end thereof by the testator In the matter of the will of MARIA SIASON Y MADRID DE
himself or by the testator's name written by some other person in his LEDESMA, Probate proceedings.
presence and by his express direction," is practically the same as the Antonio Jayme for petitioner.
provisions of Section 618 of the Code of Civil Procedure (Act No. 190) TRACEY, J.:
which reads as follows:

In this special proceedings for the legalization of a will, the Court of


No will, except as provided in the preceding section shall be valid to First Instance refused probate on the ground that the instrument was
pass any estate, real or personal, nor charge or affect the same, not subscribed by the witnesses in the presence of the testatrix and of
unless it be in writing and signed by the testator, or by the testator's each other as required by section 618 of the Code of Civil Procedure.
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 each other. . . The testatrix was ill and confined to her house, the execution of the will
. (Emphasis supplied). taking place in the sala where she lay upon a sofa. The witnesses
differ as to whether the testatrix from where she lay could read what
was written at the table; and the first witness, after signing, went away
Note that the old law as well as the new require that the testator from the table. These two circumstances do not impair the validity of
himself sign the will, or if he cannot do so, the testator's name must be the execution of the will. The witnesses being in the same apartment
written by some other person in his presence and by his express were all present and the statute does not exact that either they are the
direction. Applying this provision this Court said in the case of Ex Parte testator shall read what has been written. Had one of the witnesses left
Pedro Arcenas, et al., Phil., 700: the room or placed himself so remotely therein as to be cut off from
actual participation in the proceedings, then the subscription might not
It will be noticed from the above-quoted section 618 of the Code of have taken place in his presence within the meaning of the law.
Civil Procedure that where the testator does not know how, or is
unable, to sign, it will not be sufficient that one of the attesting A second objection is suggested on this appeal, that the signature to
witnesses signs the will at the testator's request, the notary certifying the instrument is defective. It ends in this form:
thereto as provided in Article 695 of the Civil Code, which, in this
respect, was modified by section 618 above referred to, but it is
necessary that the testator's name be written by the person signing in At the request of Señora Maria Siason.
his stead in the place where he could have signed if he knew how or
was able to do so, and this in the testator's presence and by his CATALINO GEVA.
express direction; so that a will signed in a manner different than that
prescribed by law shall not be valid and will not be allowed to be
probated. T. SILVERIO. FRUCTUOSO G. MORIN.

Where a testator does not know how, or is unable for any reason, to RAFAEL ESPINOS.
sign the will himself, it shall be signed in the following manner:
Section 618 of the Code of Civil Procedure reads as follows:
John Doe by the testator, Richard Doe; or in this form: "By the testator,
John Doe, Richard Doe." All this must be written by the witness signing Requisites of will. — No will, except as provided in the
at the request of the testator. preceding section, shall be valid to pass any estate, real of
personal, nor charge or effect the same, unless it be in
Therefore, under the law now in force, the witness Naval A. Vidal writing and signed by the testator, or by the testator's name
should have written at the bottom of the will the full name of the written by some other person in his presence, and by his
testator and his own name in one forms given above. He did not do so, express direction, and attested and subscribed by three or
however, and this is failure to comply with the law is a substantial more credible witnesses in the presence of the testator and
defect which affects the validity of the will and precludes its allowance, each of the other. The attestation shall estate the fact that
notwithstanding the fact that no one appeared to oppose it. 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
The same ruling was laid down in the case of Cuison vs. Concepcion, in his presence and in the presence of each other. But the
5 Phil., 552. In the case of Barut vs. Cabacungan, 21 Phil., 461, we absence of such form of attestation shall not render the will
held that the important thing is that it clearly appears that the name of invalid if it is proven that the will was in fact signed and
the testatrix was signed at her express direction; it is unimportant attested as in this section provided.
whether the person who writes the name of the testatrix signs his own
or not. Cases of the same import areas follows: (Ex Parte Juan
Ondevilla, 13 Phil., 479, Caluya vs.Domingo, 27 Phil., 330; The misunderstanding of this section arising from the incorrect
Garcia vs. Lacuesta, 90 Phil., 489). rendering of into Spanish in the official translation was corrected by
what was said in the decision of this court in Ex parte Arcenas (4 Phil.
Rep., 700). Confusion has also come out of the different wording of the
In the case at bar the name of the testatrix, Anacleta Abellana, does two clauses of this section, the one specifying the requisites of
not appear written under the will by said Abellana herself, or by Dr. execution and the other those of the attestation clause. The concluding
Juan Abello. There is, therefore, a failure to comply with the express sentence of the section, however, makes clear that the former and not
requirement in the law that the testator must himself sign the will, or the latter is to control. Consequently the will must be signed by the
that his name be affixed thereto by some other person in his presence testator, or by the testator's name written by some other person in his
and by his express direction. presence, and by his express direction," and the question presented in
this case is, Are the words "Señora Maria Siason" her name written by
some other person? They undoubtedly are her name, but occurring as other subscribing witnesses at the time when they attached their
they do after the words "at request of," it is contended that they form a signatures to the instrument, and this finding, of course, disposes of
part of the recital and not a signature, the only signature being the the appeal and necessitates the affirmance of the decree admitting the
names of the witnesses themselves. In Guison vs. Concepcion (5 Phil. document to probate as the last will and testament of the deceased.
Rep., 551) it was held that there was no signature, although the
attestation clause which followed the will contained the name of the The trial judge does not appear to have considered the determination
testatrix and was thereafter signed by the witnesses. The distinction of this question of fact of vital importance in the determination of this
between that case and the present one is one of the extreme nicety, case, as he was of opinion that under the doctrine laid down in the
and in the judgment of the writer of this opinion should not be case of Jaboneta v. Gustilo (5 Phil. Rep., 541) the alleged fact that one
attempted. The majority of the court, however, are of the opinion that of the subscribing witnesses was in the outer room when the testator
the distinction is a tenable one inasmuch as in the Concepcion will the and the other describing witnesses signed the instrument in the inner
name of the testatrix occurred only in the body of the attestation room, had it been proven, would not be sufficient in itself to invalidate
clause, after the first signatures of the witnesses, whereas in this will it the execution of the will. But we are unanimously of opinion that had
immediately follows the testament itself and precedes the names of the this subscribing witness been proven to have been in the outer room at
witnesses. 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
In sustaining this form of signature, this court does not intend to qualify
circumstances not being done "in the presence" of the witness in the
the decisions in Ex parte Santiago (4 Phil. Rep., 692), Ex
outer room. This because the line of vision from this witness to the
parte Arcenas, above quoted, or in Abaya vs. Zalamero.1 In the
testator and the other subscribing witnesses would necessarily have
Arcenas case the court pointed out the correct formula for a signature
been impeded by the curtain separating the inner from the outer one
which ought to be followed, but did not mean to exclude any other form
"at the moment of inscription of each signature."
substantially equivalent.
In the case just cited, on which the trial court relied, we held that:
The decision of the court below is reversed, without costs, and that
court is directed to admit the instrument before it to probate as the last "The true test of presence of the testator and the witnesses in the
will of the testatrix. So ordered. 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


10. Nera vs. Rimando (February 27, 1911)
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
SYLLABUS
choose to do so. This, of course, does not mean that the testator and
the subscribing witnesses may be held to have executed the
1. EXECUTION OF WILLS; POSITION OF TESTATOR AND instrument in the presence of each other if it appears that they would
WITNESS WHEN WILL IS SUBSCRIBED. — The position of testator not have been able to see each other sign at that moment, without
and of the witnesses to a will, at the moment of the subscription by changing their relative positions or existing conditions. The evidence in
each, must be such that they may see each other sign if they choose the case relied upon by the trial judge discloses that "at the moment
to do so. when the witness Javellana signed the document he was actually and
physically present and in such position with relation to Jaboneta that
2. ID.; ID.; SIGNING IN THE PRESENCE OF EACH OTHER. — The he could see everything that took place by merely casting his eyes in
question whether the testator and the subscribing witnesses to an the proper direction and without any physical obstruction to prevent his
alleged will sign the instrument in the presence of each other does not doing so." And the decision merely laid down the doctrine that the
depend upon proof of the fact that their eyes were actually cast upon question whether the testator and the subscribing witnesses to an
the paper at the moment of its subscription by each of them, but alleged will sign the instrument in the presence of each other does not
whether at that moment existing conditions and the position of the depend upon proof of the fact that their eyes were actually cast upon
parties, with relation to each other, were such that by merely casting the paper at the moment of its subscription by each of them, but that at
their eyes in the proper direction they could have seen each other that moment existing conditions and their position with relation to each
sign. 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
3. ID.; ID.; ID.; ONE WITNESS IN OUTER ROOM WHEN WH.L IS would open the door to the possibility of all manner of fraud,
SIGNED. — If one subscribing witness to a will is shown to have been substitution, and the like, and would defeat the purpose for which this
in an outer room at the time when the testator and the other witnesses particular condition is prescribed in the code as one of the requisites in
attach their signatures to the instrument in an inner room, the will the execution of a will.
would be held invalid — the attaching of the said signatures, under
such circumstances, not being done "in the presence" of the witness in The decree entered by the court below admitting the instrument
the outer room. propounded therein to probate as the last will and testament of Pedro
Rimando, deceased, is affirmed with costs of this instance against
DECISION the Appellant.

CARSON, J.:
11. Jaboneta vs. Gustilo (January 19, 1906)
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 CARSON, J.:
room where it was executed at the time when the testator and the
other subscribing witnesses attached their signatures; or whether at In these proceedings probate was denied the last will and testament of
that time he was outside, some eight or ten feet away, in a large room Macario Jaboneta, deceased, because the lower court was of the
connecting with the smaller room by a doorway, across which was opinion from the evidence adduced at the hearing that Julio Javellana,
hung a curtain which made it impossible for one in the outside room to one of the witnesses, did not attach his signature thereto in the
see the testator and the other subscribing witnesses in the act of presence of Isabelo Jena, another of the witnesses, as required by the
attaching their signatures to the instrument. provisions of section 618 of the Code of Civil Procedure.

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
The following is a copy of the evidence which appears of record on this Javellana moving his hand and pen in the act of affixing his signature
particular point, being a part of the testimony of the said Isabeo Jena: to the will, taken together with the testimony of the remaining
witnesses which shows that Javellana did in fact there and then sign
his name to the will, convinces us that the signature was affixed in the
Q. 1641 Who first signed the will?
presence of Jena. The fact that he was in the act of leaving, and that
his back was turned while a portion of the name of the witness was
A. 1641 I signed it first, and afterwards Aniceto and the others. being written, is of no importance. He, with the other witnesses and the
testator, had assembled for the purpose of executing the testament,
and were together in the same room for that purpose, and at the
Q. 1641 Who were those others to whom you have just referred? moment when the witness Javellana signed the document he was
actually and physically present and in such position with relation to
A. 1641 After the witness Aniceto signed the will I left the house, Javellana that he could see everything which took place by merely
because I was in a hurry, and at the moment when I was leaving I saw casting his eyes in the proper direction, and without any physical
Julio Javellana with the pen in his hand in position ready to sign (en obstruction to prevent his doing so, therefore we are of opinion that the
actitud de firmar). I believe he signed, because he was at the table. . . . document was in fact signed before he finally left the room.

Q. 1641 State positively whether Julio Javellana did or did not The purpose of a statutory requirement that the witness sign in the
sign as a witness to the will. presence of the testator is said to be that the testator may have ocular
evidence of the identity of the instrument subscribed by the witness
and himself, and the generally accepted tests of presence are vision
A. 1641 I can't say certainly, because as I was leaving the house and mental apprehension. (See Am. & Eng. Enc. of Law, vol. 30, p.
I saw Julio Javellana with the pen in his hand, in position ready to sign. 599, and cases there cited.)
I believe he signed.

In the matter of Bedell (2 Connoly (N.Y.), 328) it was held that it is


Q. 1641 Why do you believe Julio Javellana signed? sufficient if the witnesses are together for the purpose of witnessing the
execution of the will, and in a position to actually see the testator write,
A. 1641 Because he had the pen in his hand, which was resting if they choose to do so; and there are many cases which lay down the
on the paper, though I did not actually see him sign. rule that the true test of vision is not whether the testator actually saw
the witness sign, but whether he might have seen him sign,
considering his mental and physical condition and position at the time
Q. 1641 Explain this contradictory statement. of the subscription. (Spoonemore vs. Cables, 66 Mo., 579.)

A. 1641 After I signed I asked permission to leave, because I The principles on which these cases rest and the tests of presence as
was in a hurry, and while I was leaving Julio had already taken the pen between the testator and the witnesses are equally applicable in
in his hand, as it appeared, for the purpose of signing, and when I was determining whether the witnesses signed the instrument in the
near the door I happened to turn my face and I saw that he had his presence of each other, as required by the statute, and applying them
hand with the pen resting on the will, moving it as if for the purpose of to the facts proven in these proceedings we are of opinion that the
signing. statutory requisites as to the execution of the instrument were
complied with, and that the lower court erred in denying probate to the
Q. 1641 State positively whether Julio moved his hand with the will on the ground stated in the ruling appealed from.
pen as if for the purpose of signing, or whether he was signing
We are of opinion from the evidence of record that the instrument
A. I believe he was signing. propounded in these proceedings was satisfactorily proven to be the
last will and testament of Macario Jaboneta, deceased, and that it
should therefore be admitted to probate.
The truth and accuracy of the testimony of this witness does not seem
to have been questioned by any of the parties to the proceedings, but
the court, nevertheless, found the following facts: The judgment of the trial court is reversed, without especial
condemnation of costs, and after twenty days the record will be
returned to the court from whence it came, where the proper orders will
On the 26th day of December, 1901, Macario Jaboneta executed be entered in conformance herewith. So ordered.
under the following circumstances the document in question, which
has been presented for probate as his will:

12. Taboada vs. Rosal (November 5, 1982)


Being in the house of Arcadio Jarandilla, in Jaro, in this province, he GUTIERREZ, JR. J.:
ordered that the document in question be written, and calling Julio This is a petition for review of the orders issued by the Court of First
Javellana, Aniceto Jalbuena, and Isabelo Jena as witnesses, executed Instance of Southern Leyte, Branch III, in Special Proceedings No. R-
the said document as his will. They were all together, and were in the 1713, entitled "In the Matter of the Petition for Probate of the Will of
room where Jaboneta was, and were present when he signed the Dorotea Perez, Deceased; Apolonio Taboada, Petitioner", which
document, Isabelo Jena signing afterwards as a witness, at his denied the probate of the will, the motion for reconsideration and the
request, and in his presence and in the presence of the other two motion for appointment of a special administrator.
witnesses. Aniceto Jalbuena then signed as a witness in the presence
of the testator, and in the presence of the other two persons who
signed as witnesses. At that moment Isabelo Jena, being in a hurry to In the petition for probate filed with the respondent court, the petitioner
leave, took his hat and left the room. As he was leaving the house Julio attached the alleged last will and testament of the late Dorotea Perez.
Javellana took the pen in his hand and put himself in position to sign Written in the Cebuano-Visayan dialect, the will consists of two pages.
the will as a witness, but did not sign in the presence of Isabelo Jena; The first page contains the entire testamentary dispositions and is
but nevertheless, after Jena had left the room the said Julio Javellana signed at the end or bottom of the page by the testatrix alone and at
signed as a witness in the presence of the testator and of the witness the left hand margin by the three (3) instrumental witnesses. The
Aniceto Jalbuena. second page which contains the attestation clause and the
acknowledgment is signed at the end of the attestation clause by the
three (3) attesting witnesses and at the left hand margin by the
We can not agree with so much of the above finding of facts as holds testatrix.
that the signature of Javellana was not signed in the presence of Jena,
in compliance with the provisions of section 618 of the Code of Civil
Procedure. The fact that Jena was still in the room when he saw Since no opposition was filed after the petitioner's compliance with the
requirement of publication, the trial court commissioned the branch
clerk of court to receive the petitioner's evidence. Accordingly, the If the attestation clause is in a language not known
petitioner submitted his evidence and presented Vicente Timkang, one to the witnesses, it shall be interpreted to the
of the subscribing witnesses to the will, who testified on its witnesses, it shall be interpreted to them.
genuineness and due execution.
The respondent Judge interprets the above-quoted provision of law to
The trial court, thru then Presiding Judge Ramon C. Pamatian issued require that, for a notarial will to be valid, it is not enough that only the
the questioned order denying the probate of the will of Dorotea Perez testatrix signs at the "end" but an the three subscribing witnesses must
for want of a formality in its execution. In the same order, the petitioner also sign at the same place or at the end, in the presence of the
was also required to submit the names of the intestate heirs with their testatrix and of one another because the attesting witnesses to a will
corresponding addresses so that they could be properly notified and attest not merely the will itself but also the signature of the testator. It is
could intervene in the summary settlement of the estate. not sufficient compliance to sign the page, where the end of the will is
found, at the left hand margin of that page.
Instead of complying with the order of the trial court, the petitioner filed
a manifestation and/or motion, ex partepraying for a thirty-day period On the other hand, the petitioner maintains that Article 805 of the Civil
within which to deliberate on any step to be taken as a result of the Code does not make it a condition precedent or a matter of absolute
disallowance of the will. He also asked that the ten-day period required necessity for the extrinsic validity of the wig that the signatures of the
by the court to submit the names of intestate heirs with their addresses subscribing witnesses should be specifically located at the end of the
be held in abeyance. wig after the signature of the testatrix. He contends that it would be
absurd that the legislature intended to place so heavy an import on the
space or particular location where the signatures are to be found as
The petitioner filed a motion for reconsideration of the order denying
long as this space or particular location wherein the signatures are
the probate of the will. However, the motion together with the previous
found is consistent with good faith and the honest frailties of human
manifestation and/or motion could not be acted upon by the Honorable
nature.
Ramon C. Pamatian due to his transfer to his new station at Pasig,
Rizal. The said motions or incidents were still pending resolution when
respondent Judge Avelino S. Rosal assumed the position of presiding We find the petition meritorious.
judge of the respondent court.
Undoubtedly, under Article 805 of the Civil Code, the will must be
Meanwhile, the petitioner filed a motion for the appointment of special subscribed or signed at its end by the testator himself or by the
administrator. testator's name written by another 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.
Subsequently, the new Judge denied the motion for reconsideration as
well as the manifestation and/or motion filed ex parte. In the same
order of denial, the motion for the appointment of special administrator It must be noted that the law uses the
was likewise denied because of the petitioner's failure to comply with terms attested and subscribed Attestation consists in witnessing the
the order requiring him to submit the names of' the intestate heirs and testator's execution of the will in order to see and take note mentally
their addresses. 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 petitioner decided to file the present petition.
the same paper for the purpose of Identification of such paper as the
will which was executed by the testator. (Ragsdale v. Hill, 269 SW 2d
For the validity of a formal notarial will, does Article 805 of the Civil 911).
Code require that the testatrix and all the three instrumental and
attesting witnesses sign at the end of the will and in the presence of
Insofar as the requirement of subscription is concerned, it is our
the testatrix and of one another?
considered view that the will in this case was subscribed in a manner
which fully satisfies the purpose of Identification.
Article 805 of the Civil Code provides:
The signatures of the instrumental witnesses on the left margin of the
Every will, other than a holographic will, must be first page of the will attested not only to the genuineness of the
subscribed at the end thereof by the testator signature of the testatrix but also the due execution of the will as
himself or by the testator's name written by some embodied in the attestation clause.
other person in his presence, and by his express
direction, and attested and subscribed by three or
While perfection in the drafting of a will may be desirable, unsubstantial
more credible witnesses in the presence of the
departure from the usual forms should be ignored, especially where
testator and of one another.
the authenticity of the will is not assailed. (Gonzales v. Gonzales, 90
Phil. 444, 449).
The testator or the person requested by him to
write his name and the instrumental witnesses of
The law is to be liberally construed, "the underlying and fundamental
the will, shall also sign, as aforesaid, each and
objective permeating the provisions on the law on wills in this project
every page thereof, except the last, on the left
consists in the liberalization of the manner of their execution with the
margin, and all the pages shall be numbered
end in view of giving the testator more freedom in expressing his last
correlatively in letters placed on the upper part of
wishes but with sufficient safeguards and restrictions to prevent the
each page.
commission of fraud and the exercise of undue and improper pressure
and influence upon the testator. This objective is in accord with the
The attestation shall state the number of pages modern tendency in respect to the formalities in the execution of a will"
used upon which the will is written, and the fact (Report of the Code commission, p. 103).
that the testator signed the will and every page
thereof, or caused some other person to write his
Parenthetically, Judge Ramon C. Pamatian stated in his questioned
name, under his express direction, in the presence
order that were not for the defect in the place of signatures of the
of the instrumental witnesses, and that the lacier
witnesses, he would have found the testimony sufficient to establish
witnesses and signed the will and the pages
the validity of the will.
thereof in the presence of the testator and of one
another.
The objects of attestation and of subscription were fully met and fun observance of the statutory requisites.
satisfied in the present case when the instrumental witnesses signed at Otherwise, as stated in Vda. de Gil. Vs. Murciano,
the left margin of the sole page which contains all the testamentary 49 Off. Gaz. 1459, at 1479 (decision on
dispositions, especially so when the will was properly Identified by reconsideration) 'witnesses may sabotage the will
subscribing witness Vicente Timkang to be the same will executed by by muddling or bungling it or the attestation
the testatrix. There was no question of fraud or substitution behind the clause.
questioned order.
WHEREFORE, the present petition is hereby granted. The orders of
We have examined the will in question and noticed that the attestation the respondent court which denied the probate of tile will, the motion
clause failed to state the number of pages used in writing the will. This for reconsideration of the denial of probate, and the motion for
would have been a fatal defect were it not for the fact that, in this case, appointment of a special administrator are set aside. The respondent
it is discernible from the entire wig that it is really and actually court is ordered to allow the probate of the wig and to conduct further
composed of only two pages duly signed by the testatrix and her proceedings in accordance with this decision. No pronouncement on
instrumental witnesses. As earlier stated, the first page which contains costs.
the entirety of the testamentary dispositions is signed by the testatrix at
the end or at the bottom while the instrumental witnesses signed at the
SO ORDERE
left margin. The other page which is marked as "Pagina dos"
comprises the attestation clause and the acknowledgment. The
acknowledgment itself states that "This Last Will and Testament 13. Icasiano vs. Icasiano (June 30, 1964)
consists of two pages including this page".
REYES, J.B.L., J.:
In Singson v. Florentino, et al. (92 Phil. 161, 164), this Court made the
following observations with respect to the purpose of the requirement
that the attestation clause must state the number of pages used: 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,
The law referred to is article 618 of the Code of deceased, and appointing as executor Celso Icasiano, the person
Civil Procedure, as amended by Act No. 2645, named therein as such.
which requires that the attestation clause shall
state the number of pages or sheets upon which
the win is written, which requirement has been This special proceeding was begun on October 2, 1958 by a petition
held to be mandatory as an effective safeguard for the allowance and admission to probate of the original, Exhibit "A"
against the possibility of interpolation or omission as the alleged will of Josefa Villacorte, deceased, and for the
of some of the pages of the will to the prejudice of appointment of petitioner Celso Icasiano as executor thereof.
the heirs to whom the property is intended to be
bequeathed (In re will of Andrada, 42 Phil., 180; The court set the proving of the alleged will for November 8, 1958, and
Uy Coque vs. Navas L. Sioca, 43 Phil. 405; caused notice thereof to be published for three (3) successive weeks,
Gumban vs. Gorecho, 50 Phil. 30; Quinto vs. previous to the time appointed, in the newspaper "Manila chronicle",
Morata, 54 Phil. 481; Echevarria vs. Sarmiento, 66 and also caused personal service of copies thereof upon the known
Phil. 611). The ratio decidendi of these cases heirs.
seems to be that the attestation clause must
contain a statement of the number of sheets or
pages composing the will and that if this is missing On October 31, 1958, Natividad Icasiano, a daughter of the testatrix,
or is omitted, it will have the effect of invalidating filed her opposition; and on November 10, 1958, she petitioned to have
the will if the deficiency cannot be supplied, not by herself appointed as a special administrator, to which proponent
evidence aliunde, but by a consideration or objected. Hence, on November 18, 1958, the court issued an order
examination of the will itself. But here the situation appointing the Philippine Trust Company as special
is different. While the attestation clause does not administrator. 1äwphï1.ñët
state the number of sheets or pages upon which
the will is written, however, the last part of the On February 18, 1959, Enrique Icasiano, a son of the testatrix, also
body of the will contains a statement that it is filed a manifestation adopting as his own Natividad's opposition to the
composed of eight pages, which circumstance in probate of the alleged will.
our opinion takes this case out of the rigid rule of
construction and places it within the realm of
similar cases where a broad and more liberal view On March 19, 1959, the petitioner proponent commenced the
has been adopted to prevent the will of the testator introduction of his evidence; but on June 1, 1959, he filed a motion for
from being defeated by purely technical the admission of an amended and supplemental petition, alleging that
considerations. 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
Icasiano v. Icasiano (11 SCRA 422, 429) has the following ruling which May 26, 1959. On June 17, 1959, oppositors Natividad Icasiano de
applies a similar liberal approach: Gomez and Enrique Icasiano filed their joint opposition to the
admission of the amended and supplemental petition, but by order of
... Impossibility of substitution of this page is July 20, 1959, the court admitted said petition, and on July 30, 1959,
assured not only (sic) the fact that the testatrix and oppositor Natividad Icasiano filed her amended opposition. Thereafter,
two other witnesses did sign the defective page, the parties presented their respective evidence, and after several
but also by its bearing the coincident imprint of the hearings the court issued the order admitting the will and its duplicate
seal of the notary public before whom the to probate. From this order, the oppositors appealed directly to this
testament was ratified by testatrix and all three Court, the amount involved being over P200,000.00, on the ground
witnesses. The law should not be so strictly and that the same is contrary to law and the evidence.
literally interpreted as to penalize the testatrix on
account of the inadvertence of a single witness The evidence presented for the petitioner is to the effect that Josefa
over whose conduct she had no control where the Villacorte died in the City of Manila on September 12, 1958; that on
purpose of the law to guarantee the Identity of the June 2, 1956, the late Josefa Villacorte executed a last will and
testament and its component pages is sufficiently testament in duplicate at the house of her daughter Mrs. Felisa
attained, no intentional or deliberate deviation Icasiano at Pedro Guevara Street, Manila, published before and
existed, and the evidence on record attests to the attested by three instrumental witnesses, namely: attorneys Justo P.
Torres, Jr. and Jose V. Natividad, and Mr. Vinicio B. Diy; that the will opinion of expert for oppositors, Mr. Felipe Logan, that the signatures
was acknowledged by the testatrix and by the said three instrumental of the testatrix appearing in the duplicate original were not written by
witnesses on the same date before attorney Jose Oyengco Ong, the same had which wrote the signatures in the original will leaves us
Notary Public in and for the City of Manila; and that the will was unconvinced, not merely because it is directly contradicted by expert
actually prepared by attorney Fermin Samson, who was also present Martin Ramos for the proponents, but principally because of the
during the execution and signing of the decedent's last will and paucity of the standards used by him to support the conclusion that the
testament, together with former Governor Emilio Rustia of Bulacan, differences between the standard and questioned signatures are
Judge Ramon Icasiano and a little girl. Of the said three instrumental beyond the writer's range of normal scriptural variation. The expert
witnesses to the execution of the decedent's last will and testament, has, in fact, used as standards only three other signatures of the
attorneys Torres and Natividad were in the Philippines at the time of testatrix besides those affixed to the original of the testament (Exh. A);
the hearing, and both testified as to the due execution and authenticity and we feel that with so few standards the expert's opinion and the
of the said will. So did the Notary Public before whom the will was signatures in the duplicate could not be those of the testatrix becomes
acknowledged by the testatrix and attesting witnesses, and also extremely hazardous. This is particularly so since the comparison
attorneys Fermin Samson, who actually prepared the document. The charts Nos. 3 and 4 fail to show convincingly that the are radical
latter also testified upon cross examination that he prepared one differences that would justify the charge of forgery, taking into account
original and two copies of Josefa Villacorte last will and testament at the advanced age of the testatrix, the evident variability of her
his house in Baliuag, Bulacan, but he brought only one original and signatures, and the effect of writing fatigue, the duplicate being signed
one signed copy to Manila, retaining one unsigned copy in Bulacan. right the original. These, factors were not discussed by the expert.

The records show that the original of the will, which was surrendered Similarly, the alleged slight variance in blueness of the ink in the
simultaneously with the filing of the petition and marked as Exhibit "A" admitted and questioned signatures does not appear reliable,
consists of five pages, and while signed at the end and in every page, considering the standard and challenged writings were affixed to
it does not contain the signature of one of the attesting witnesses, Atty. different kinds of paper, with different surfaces and reflecting power.
Jose V. Natividad, on page three (3) thereof; but the duplicate copy On the whole, therefore, we do not find the testimony of the oppositor's
attached to the amended and supplemental petition and marked as expert sufficient to overcome that of the notary and the two
Exhibit "A-1" is signed by the testatrix and her three attesting instrumental witnesses, Torres and Natividad (Dr. Diy being in the
witnesses in each and every page. United States during the trial, did not testify).

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

That the failure of witness Natividad to sign page three (3) was entirely
We have examined the record and are satisfied, as the trial court was,
through pure oversight is shown by his own testimony as well as by the
that the testatrix signed both original and duplicate copies (Exhibits "A"
duplicate copy of the will, which bears a complete set of signatures in
and "A-1", respectively) of the will spontaneously, on the same in the
every page. The text of the attestation clause and the acknowledgment
presence of the three attesting witnesses, the notary public who
before the Notary Public likewise evidence that no one was aware of
acknowledged the will; and Atty. Samson, who actually prepared the
the defect at the time.
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 This would not be the first time that this Court departs from a strict and
before they were actually signed; that the attestation clause is also in a literal application of the statutory requirements, where the purposes of
language known to and spoken by the testatrix and the witnesses. The 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 Wherefore, the appealed decision is reversed and the probate of the
its foot by testator and witnesses, but not in the left margin, could will in question denied. So ordered with costs against the petitioner and
nevertheless be probated (Abangan vs. Abangan, 41 Phil. 476); and appellee.
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
15. Abangan vs. Abangan, supra
not a fatal defect (Lopez vs. Liboro, 81 Phil. 429). These precedents
exemplify the Court's policy to require satisfaction of the legal
16. Cruz vs. Villasor (November 26, 1973)
requirements in order to guard against fraud and bid faith but without
undue or unnecessary curtailment of the testamentary privilege.
ESGUERRA, J.:
Petition to review on certiorari the judgment of the Court of First
The appellants also argue that since the original of the will is in Instance of Cebu allowing the probate of the last will and testament of
existence and available, the duplicate (Exh. A-1) is not entitled to the late Valente Z. Cruz. Petitioner-appellant Agapita N. Cruz, the
probate. Since they opposed probate of original because it lacked one surviving spouse of the said deceased, opposed the allowance of the
signature in its third page, it is easily discerned that oppositors- will (Exhibit "E"), alleging that the will was executed through fraud,
appellants run here into a dilemma; if the original is defective and deceit, misrepresentation and undue influence; that the said instrument
invalid, then in law there is no other will but the duly signed carbon was executed without the testator having been fully informed of the
duplicate (Exh. A-1), and the same is probatable. If the original is valid contents thereof, particularly as to what properties he was disposing;
and can be probated, then the objection to the signed duplicate need and that the supposed last will and testament was not executed in
not be considered, being superfluous and irrelevant. At any rate, said accordance with law. Notwithstanding her objection, the Court allowed
duplicate, Exhibit A-1, serves to prove that the omission of one the probate of the said last will and testament. Hence this appeal
signature in the third page of the original testament was inadvertent by certiorari which was given due course.
and not intentional.
The only question presented for determination, on which the decision
of the case hinges, is whether the supposed last will and testament of
That the carbon duplicate, Exhibit A-1, was produced and admitted
Valente Z. Cruz (Exhibit "E") was executed in accordance with law,
without a new publication does not affect the jurisdiction of the probate
particularly Articles 805 and 806 of the new Civil Code, the first
court, already conferred by the original publication of the petition for
requiring at least three credible witnesses to attest and subscribe to
probate. The amended petition did not substantially alter the one first
the will, and the second requiring the testator and the witnesses to
filed, but merely supplemented it by disclosing the existence of the
acknowledge the will before a notary public.
duplicate, and no showing is made that new interests were involved
(the contents of Exhibit A and A-1 are admittedly identical); and
Of the three instrumental witnesses thereto, namely, Deogracias T.
appellants were duly notified of the proposed amendment. It is
Jamaoas, Jr., Dr. Francisco Pañares, and Atty. Angel H. Teves, Jr.,
nowhere proved or claimed that the amendment deprived the
one of them, the last named, is at the same time the Notary Public
appellants of any substantial right, and we see no error in admitting the
before whom the will was supposed to have been acknowledged.
amended petition.
Reduced to simpler terms, the question was attested and subscribed
by at least three credible witnesses in the presence of the testator and
IN VIEW OF THE FOREGOING, the decision appealed from is of each other, considering that the three attesting witnesses must
affirmed, with costs against appellants. 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
14. Cagro vs. Cagro (April 29, 1953)
acknowledge the will. On the other hand, private respondent-appellee,
Manuel B. Lugay, who is the supposed executor of the will, following
PARAS, C.J.: 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
This is an appeal interposed by the oppositors from a decision of the his stand with 57 American Jurisprudence, p. 227 which, insofar as
Court of First Instance of Samar, admitting to probate the will allegedly pertinent, reads as follows:
executed by Vicente Cagro who died in Laoangan, Pambujan, Samar,
on February 14, 1949. "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
The main objection insisted upon by the appellant in that the will is signed as certifying to an acknowledgment of the testator’s signature
fatally defective, because its attestation clause is not signed by the under oath rather than as attesting the execution of the instrument."
attesting witnesses. There is no question that the signatures of the
three witnesses to the will do not appear at the bottom of the After weighing the merits of the conflicting claims of the parties, We are
attestation clause, although the page containing the same is signed by inclined to sustain that of the appellant that the last will and testament
the witnesses on the left-hand margin. 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
We are of the opinion that the position taken by the appellant is his having signed the will. To acknowledge before means to avow
correct. The attestation clause is 'a memorandum of the facts attending (Javellana v. Ledesma, 97 Phil. 258, 262; Castro v Castro, 100 Phil.
the execution of the will' required by law to be made by the attesting 239, 247); to own as genuine, to assent, to admit; and "before" means
witnesses, and it must necessarily bear their signatures. An unsigned in front or preceding in space or ahead of. (The New Webster
attestation clause cannot be considered as an act of the witnesses, Encyclopedic Dictionary of the English Language, p. 72; Funk &
since the omission of their signatures at the bottom thereof negatives Wagnalls New Standard Dictionary of the English Language, p. 252;
their participation. Webster’s New International Dictionary 2d. p. 245.) Consequently, if
the third witness were the notary public himself, he would have to
The petitioner and appellee contends that signatures of the three avow, assent, or admit his having signed the will in front of himself.
witnesses on the left-hand margin conform substantially to the law and This cannot be done because he cannot split his personality into two
may be deemed as their signatures to the attestation clause. This is so that one will appear before the other to acknowledge his
untenable, because said signatures are in compliance with the legal participation in the making of the will. To permit such a situation to
mandate that the will be signed on the left-hand margin of all its pages. obtain would be sanctioning a sheer absurdity.
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 Furthermore, the function of a notary public is, among others, to guard
to a will on a subsequent occasion and in the absence of the testator against any illegal or immoral arrangements. Balinon v. De Leon, 50 O.
and any or all of the witnesses. G. 583.) That function would be defeated if the notary public were one
of the attesting or instrumental witnesses. For them he would be
interested in sustaining the validity of the will as it directly involves
himself and the validity of his own act. It would place him in an The probate court assumed that the notarial acknowledgment of the
inconsistent position and the very purpose of the acknowledgment, said will is subject to the thirty-centavo documentary stamp tax fixed in
which is to minimize fraud (Report of the Code Commission p. 106- section 225 of the Tax Code, now section 237 of the 1977 Tax Code.
107), would be thwarted.
Respondent Judge refused to reconsider the dismissal in spite of
Admittedly, there are American precedents holding that a notary public
petitioner's manifestation that he had already attached the
may, in addition, act as a witness to the execution of the document he
documentary stamp to the original of the will. (See Mahilum vs. Court
has notarized. (Mahilum v. Court of Appeals, 64 O. G. 4017; 17 SCRA
of Appeals, 64 O. G. 4017, 17 SCRA 482, 486.)
482; Sawyer v. Cox, 43 Ill. 130) There are others holding that his
signing merely as a notary in a will nonetheless makes him a witness
thereunder (Ferguson v. Ferguson, 47 S. E. 2d. 346; In Re Douglas’ The case was brought to this Court by means of a petition for
Will, 83 N. Y. S. 2d. 641; Ragsdal v. Hill, 269 S. W. 2d. 911, Tyson v. mandamus to compel the lower court to allow petitioner's appeal from
Utterback, 122 So. 496; In Re Baybee’s Estate 160 N. W. 900; Merill v. its decision. In this Court's resolution of January 21, 1980 the petition
Boal, 132 A. 721; See also Trenwith v. Smallwood, 15 So. 1030). But for mandamus was treated in the interest of substantial and speedy
these authorities do not serve the purpose of the law in this jurisdiction justice as an appeal under Republic Act No. 5440 as well as a special
or are not decisive of the issue herein, because the notaries public and civil action of certiorari under Rule 65 of the Rules of Court.
witnesses referred to in the aforecited cases merely acted as
instrumental, subscribing or attesting witnesses, and not as
acknowledging witnesses. Here the notary public acted not only as We hold that the lower court manifestly erred in declaring that,
because no documentary stamp was affixed to the will, there was "no
attesting witness but also as acknowledging witness, a situation not
envisaged by Article 805 of the Civil Code which reads: will and testament to probate" and, consequently, the alleged "action
must of necessity be dismissed".
"ART. 806. Every will must be acknowledged before a notary public by
the testator and the witnesses. The notary public shall not be required What the probate court should have done was to require the petitioner
to retain a copy of the will or file another with the office of the Clerk of or proponent to affix the requisite thirty-centavo documentary stamp to
Court." [Emphasis supplied] the notarial acknowledgment of the will which is the taxable portion of
that document.
To allow the notary public to act as third witness, or one of the attesting
and acknowledging witnesses, would have the effect of having only
two attesting witnesses to the will which would be in contravention of That procedure may be implied from the provision of section 238 that
the provisions of Article 805 requiring at least three credible witnesses the non-admissibility of the document, which does not bear the
to act as such and of Article 806 which requires that the testator and requisite documentary stamp, subsists only "until the requisite stamp or
the required number of witnesses must appear before the notary public stamps shall have been affixed thereto and cancelled."
to acknowledge the will. The result would be, as has been said, that
only two witnesses appeared before the notary public for that purpose. Thus, it was held that the documentary stamp may be affixed at the
In the circumstances, the law would not be duly observed. time the taxable document is presented in evidence (Del Castillo vs.
Madrilena 49 Phil. 749). If the promissory note does not bear a
FOR ALL THE FOREGOING, the judgment appealed from is hereby documentary stamp, the court should have allowed plaintiff's tender of
reversed and the probate of the last will and testament of Valente Z. a stamp to supply the deficiency. (Rodriguez vs. Martinez, 5 Phil. 67,
Cruz (Exhibit "E") is declared not valid and hereby set aside. 71. Note the holding in Azarraga vs. Rodriguez, 9 Phil. 637, that the
lack of the documentary stamp on a document does not invalidate
Cost against the appellee. such document. See Cia. General de Tabacos vs. Jeanjaquet 12 Phil.
195, 201-2 and Delgado and Figueroa vs. Amenabar 16 Phil. 403, 405-
17. Gabucan vs. Manta (January 28, 1980) 6.)
AQUINO, J.:
This case is about the dismissal of a petition for the probate of a
notarial will on the ground that it does not bear a thirty-centavo WHEREFORE, the lower court's dismissal of the petition for probate is
documentary stamp. reversed and set aside. It is directed to decide the case on the merits
in the light of the parties' evidence. No costs.

The Court of First Instance of Camiguin in its "decision" of December


28, 1977 in Special Proceeding No. 41 for the probate of the will of the SO ORDERED.
late Rogaciano Gabucan, dismissed the proceeding (erroneously
characterizes as an "action") 18. Javellana vs. Ledesma (June 30, 1955)

The proceeding was dismissed because the requisite documentary REYES, J.B.L., J.:
stamp was not affixed to the notarial acknowledgment in the will and, By order of July 23, 1953, the Court of First Instance of Iloilo admitted
hence, according to respondent Judge, it was not admissible in to probate the documents in the Visayan dialect, marked Exhibits D
evidence, citing section 238 of the Tax Code, now section 250 of the and E, as the testament and codicil duly executed by the deceased Da.
1977 Tax Code, which reads: 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
SEC. 238. Effect of failure to stamp taxable document. — An Ledesma, sister and nearest surviving relative of said deceased,
instrument, document, or paper which is required by law to appealed from the decision, insisting that the said exhibits were not
be stamped and which has been signed, issued, accepted, executed in conformity with law. The appeal was made directly to this
or transferred without being duly stamped, shall not be Court because the value of the properties involved exceeded two
recorded, nor shall it or any copy thereof or any record of hundred thousand pesos.
transfer of the same be admitted or used in evidence in
any court until the requisite stamp or stamps shall have been
affixed thereto and cancelled. 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
No notary public or other officer authorized to administer oaths shall hearing in the court below, where the issue was concentrated into
add his jurat or acknowledgment to any document subject to three specific questions: (1) whether the testament of 1950 was
documentary stamp tax unless the proper documentary stamps are executed by the testatrix in the presence of the instrumental witnesses;
affixed thereto and cancelled. (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 the tendency of the mind, in recalling past events, to substitute the
to us for resolution. usual and habitual for what differs slightly from it (II Moore on Facts, p.
878; The Ellen McGovern, 27 Fed. 868, 870).
The contestant argues that the Court below erred in refusing credence
to her witnesses Maria Paderogao and Vidal Allado, cook and driver, At any rate, as observed by the Court below, whether or not the notary
respectively, of the deceased Apolinaria Ledesma. Both testified that signed the certification of acknowledgment in the presence of the
on March 30, 1950, they saw and heard Vicente Yap (one of the testatrix and the witnesses, does not affect the validity of the codicil.
witnesses to the will) inform the deceased that he had brought the Unlike the Code of 1889 (Art. 699), the new Civil Code does not
"testamento" and urge her to go to attorney Tabiana's office to sign it; require that the signing of the testator, witnesses and notary should be
that Da. Apolinaria manifested that she could not go, because she was accomplished in one single act. A comparison of Articles 805 and 806
not feeling well; and that upon Yap's insistence that the will had to be of the new Civil Code reveals that while testator and witnesses sign in
signed in the attorney's office and not elsewhere, the deceased took the presence of each other, all that is thereafter required is that "every
the paper and signed it in the presence of Yap alone, and returned it will must be acknowledged before a notary public by the testator and
with the statement that no one would question it because the property the witnesses" (Art. 806); i.e., that the latter should avow to the
involved was exclusively hers. 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
Our examination of the testimony on record discloses no grounds for
sealing by the notary of his certification that the testament was duly
reversing the trial Court's rejection of the improbable story of the
acknowledged by the participants therein is no part of the
witnesses. It is squarely contradicted by the concordant testimony of
acknowledgment itself nor of the testamentary act. Hence their
the instrumental witnesses, Vicente Yap, Atty. Ramon Tabiana, and his
separate execution out of the presence of the testatrix and her
wife Gloria Montinola, who asserted under oath that the testament was
witnesses can not be said to violate the rule that testaments should be
executed by testatrix and witnesses in the presence of each other, at
completed without interruption (Andalis vs. Pulgueras, 59 Phil. 643), or,
the house of the decedent on General Hughes St., Iloilo City, on March
as the Roman maxim puts it, "uno codem die ac tempore in eadem
30, 1950. And it is highly unlikely, and contrary to usage, that either
loco", and no reversible error was committed by the Court in so
Tabiana or Yap should have insisted that Da. Apolinaria, an infirm lady
holding. It is noteworthy that Article 806 of the new Civil Code does not
then over 80 years old, should leave her own house in order to execute
contain words requiring that the testator and the witnesses should
her will, when all three witnesses could have easily repaired thither for
acknowledge the testament on the same day or occasion that it was
the purpose. Moreover, the cross-examination has revealed fatal flaws
executed.
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 decision admitting the will to probate is affirmed, with costs against
the term meant nothing to either. It is well known that what is to be appellant.
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
19. Garcia vs. Vasquez
on March 30, 1950; but she could remember no other date, nor give
satisfactory explanation why that particular day stuck in her mind.
SYLLABUS
Worse still, Allado claimed to have heard what allegedly transpired
1. CIVIL LAW; SUCCESSION, WILLS; PROBATE OF WILLS;
between Yap and Da. Apolinaria from the kitchen of the house, that
GROUND FOR DISALLOWANCE; TESTATRIX’S DEFECTIVE
was later proved to have been separated from the deceased's
EYESIGHT AS UNABLING HER TO READ THE PROVISIONS OF
quarters, and standing at a much lower level, so that conversations in
LATER WILL.— The declarations in court of the opthalmologist as to
the main building could not be distinctly heard from the kitchen. Later,
the condition of the testatrix’s eyesight fully establish the fact that her
on redirect examination, Allado sought to cure his testimony by
vision remained mainly for viewing distant objects and not for reading
claiming that he was upstairs in a room where the servants used to eat
print; that she was, at the time of the execution of the second will on
when he heard Yap converse with his mistress; but this correction is
December 29, 1960, incapable of reading and could not have read the
unavailing, since it was plainly induced by two highly leading questions
provisions of the will supposedly signed by her.
from contestant's counsel that had been previously ruled out by the
trial Court. Besides, the contradiction is hardly consonant with this
2. ID.; ID.; ID.; ID.; ID.; IRREGULARITIES IN THE EXECUTION OF
witness' 18 years of service to the deceased.
THE WILL; CASE AT BAR.— Upon its face, the testamentary
provisions, the attestation clause and acknowledgment were crammed
Upon the other hand, the discrepancies in the testimony of the together into a single sheet of paper, apparently to save on space.
instrumental witnesses urged upon us by the contestant-appellant, Plainly, the testament was not prepared with any regard for the
concerning the presence or absence of Aurelio Montinola at the defective vision of Dña. Gliceria, the typographical errors remained
signing of the testament or of the codicil, and the identity of the person uncorrected thereby indicating that the execution thereof must have
who inserted the date therein, are not material and are largely been characterized by haste. It is difficult to understand that so
imaginary, since the witness Mrs. Tabiana confessed inability to important a document containing the final disposition of one’s worldly
remember all the details of the transaction. Neither are we impressed possessions should be embodied in an informal and untidy written
by the argument that the use of some Spanish terms in the codicil and instrument; or that the glaring spelling errors should have escaped her
testament (like legado, partes iguales, plena propiedad) is proof that its notice if she had actually retained the ability to read the purported will
contents were not understood by the testatrix, it appearing in evidence and had done so.
that those terms are of common use even in the vernacular, and that
the deceased was a woman of wide business interests. 3. ID.; ID.; ID.; EXECUTION OF WILLS; REQUISITES FOR VALIDITY;
ART. 808, NEW CIVIL CODE — READING OF THE WILL TWICE TO
A BLIND TESTATOR; PURPOSE.— The rationale behind the
The most important variation noted by the contestants concerns that
requirement of reading the will to the testator if he is blind or incapable
signing of the certificate of acknowledgment (in Spanish) appended to
of reading the will himself is to make the provisions thereof known to
the Codicil in Visayan, Exhibit E. Unlike the testament, this codicil was
him, so that he may be able to object if they are not in accordance with
executed after the enactment of the new Civil Code, and, therefore,
his wishes.
had to be acknowledged before a notary public (Art. 806). Now, the
instrumental witnesses (who happen to be the same ones who attested
4. ID.; ID.; ID.; ID.; ID.; ID.; NOT COMPLIED WITH IN INSTANT
the will of 1950) asserted that after the codicil had been signed by the
CASE.— Where as in the 1960 will there is nothing in the record to
testatrix and the witnesses at the San Pablo Hospital, the same was
show that the requisites of Art. 808 of the Civil Code of the Philippines
signed and sealed by notary public Gimotea on the same occasion. On
that "if the testator is blind, the will shall be read to him twice," have not
the other hand, Gimotea affirmed that he did not do so, but brought the
been complied with, the said 1960 will suffer from infirmity that affects
codicil to his office, and signed and sealed it there. The variance does
its due execution.
not necessarily imply conscious perversion of truth on the part of the
witnesses, but appears rather due to a well-established phenomenon,
5. REMEDIAL LAW; SETTLEMENT OF ESTATE OF DECEASED Manahan; (7) Severina, Rosa and Josefa, surnamed Narciso, and
PERSONS; ADMINISTRATORS; GROUNDS FOR REMOVAL; Vicente and Delfin, surnamed Mauricio, — the latter five groups of
ACQUISITION OF INTEREST ADVERSE TO THAT OF THE ESTATE persons all claiming to be relatives of Doña Gliceria within the fifth civil
MAKES THE ADMINISTRATOR UNSUITABLE TO DISCHARGE THE degree. The oppositions invariably charged that the instrument
TRUST; CASE AT BAR.— Considering that the alleged deed of sale executed in 1960 was not intended by the deceased to be her true will;
was executed when Gliceria del Rosario was already practically blind that the signatures of the deceased appearing in the will was procured
and that the consideration given seems unconscionably small for the through undue and improper pressure and influence the part of the
properties, there was likelihood that a case for annulment might be beneficiaries and/or other persons; that the testatrix did not know the
filed against the estate or heirs of Alfonso Precilla. And the object of her bounty; that the instrument itself reveals irregularities in
administratrix being the widow and heir of the alleged transferee, its execution, and that the formalities required by law for such
cannot be expected to sue herself in an action to recover property that execution have not been complied with.
may turn out to belong to the estate. This, plus her conduct in securing
new copies of the owner’s duplicate of titles without the court’s Oppositor Lucio V. Garcia, who also presented for probate the 1956
knowledge and authority and having the contract bind the land through will of the deceased, joined the group of Dr. Jaime Rosario in
issuance of new titles in her husband’s name, cannot but expose her to registering opposition to the appointment of petitioner Consuelo S.
the charge of unfitness or unsuitability to discharge the trust, justifying Gonzales Vda. de Precilla as special administratrix, on the ground that
her removal from the administration of the estate. the latter possesses interest adverse to the estate. After the parties
were duly heard, the probate court, in its order of 2 October 1965,
6. REMEDIAL LAW; NOTICE OF LIS PENDENS; ACTION MUST granted petitioner’s prayer and appointed her special administratrix of
AFFECT "THE TITLE OR THE RIGHT OF POSSESSION OF REAL the estate upon a bond for P30,000.00. The order was premised on the
PROPERTY." — On the matter of lis pendens, the provisions of the fact the petitioner was managing the properties belonging to the estate
Rules of Court are clear: notice of the pendency of an action may be even during the lifetime of the deceased, and to appoint another
recorded in the office of the register of deeds of the province in which person as administrator or co administrator at that stage of the
the property is situated, if the action affects "the title or the right of proceeding would only result in further confusion and difficulties.
possession of (such) real property."cralaw virtua1aw library
On 30 September 1965, oppositors Jaime Rosario, Et. Al. filed with the
7. ID.; ID.; ID.; NOT APPLICABLE TO INSTANT CASE.— The issue in probate court an urgent motion to require the Hongkong & Shanghai
controversy here is simply the fitness or unfitness of said special Bank to report all withdrawals made against the funds of the deceased
administratrix to continue holding the trust, it does not involve or affect after 2 September 1965. The court denied this motion on 22 October
at all the title to, or possession of, the properties covered by TCT Nos. 1965 for being premature, it being unaware that such deposit in the
81735, 81736 and 81737. Clearly, the pendency of such case (L- name of the deceased existed.
26615) is not an action that can properly be annotated in the record of
the titles to the properties. On 14 December 1965, the same sets of oppositors, Dr. Jaime Rosario
and children, Antonio Jesus de Praga, Natividad de Jesus and Fr.
Lucio V. Garcia, petitioned the court for the immediate removal of the
special administratrix. It was their claim that the special administratrix
DECISION and her deceased husband, Alfonso Precilla, 2 had caused Gliceria A.
del Rosario to execute a simulated and fraudulent deed of absolute
REYES, J.B.L., J.: sale dated 10 January 1961 allegedly conveying unto said spouses for
G.R. No. L-27200 is an appeal from the order of the Court of First the paltry sum of P30,000.00 ownership of 3 parcels of land and the
Instance of Manila (in Sp. Proc. No. 62618) admitting to probate the improvements thereon located on Quiapo and San Nicolas, Manila,
alleged last will an, testament of the late Gliceria Avelino del Rosario with a total assessed value of P334,050.00. Oppositors contended that
dated 29 December 1960. G.R. Nos. L-26615 and L-2684 are separate since it is the duty of the administrator to protect and conserve the
petitions for mandamus filed by certain alleged heirs of said decedent properties of the estate, and it may become necessary that, an action
seeking (1) to compel the probate court to remove Consuelo S. for the annulment of the deed of sale land for recovery of the
Gonzales-Precilla as special administratrix of the estate, for conflict of aforementioned parcels of land be filed against the special
interest, to appoint a new one in her stead; and (2) to order the administratrix, as wife and heir of Alfonso Precilla, the removal of the
Register of Deeds of Manila to annotate notice of lis pendens in TCT said administratrix was imperative.
Nos. 81735, 81736 ,and 81737, registered in the name of Alfonso
Precilla, married to Consuelo Gonzales y Narciso, and said to be On 17 December 1965, the same oppositors prayed the court for an
properly belonging to the estate of the deceased Gliceria A. del order directing the Special Administratrix to deposit with the Clerk of
Rosario. Court all certificates of title belonging to the estate. It was alleged that
on 22 October 1965, or after her appointment, petitioner Consuelo
Insofar as pertinent to the issues involved herein, the facts of these Gonzales Vda. de Precilla, in her capacity as special administratrix of
cases may be stated as follows:chanrob1es virtual 1aw library the estate of the deceased Gliceria A. del Rosario, filed with Branch IV
of the Court of First Instance of Manila a motion for the issuance of
Gliceria Avelino del Rosario died unmarried in the City of Manila on 2 new copies of the owner’s duplicates of certain certificates of title in the
September 1965, leaving no descendents, ascendants, brother or name of Gliceria del Rosario, supposedly needed by her "in the
sister. At the time of her death, she was said to be 90 years old more preparation of the inventory" of the properties constituting the estate.
or less, and possessed of an estate consisting mostly of real The motion having been granted, new copies of the owner’s duplicates
properties. of certificates appearing the name of Gliceria del Rosario (among
which were TCT Nos. 66201, 66202 and 66204) were issued on 15
On 17 September 1965, Consuelo S. Gonzales Vda. de Precilla, a November 1965. On 8 December 1965, according to the oppositors,
niece of the deceased, petitioned the Court of First Instance of Manila the same special administratrix presented to the Register of Deeds the
for probate of the alleged last will and testament of Gliceria A. del deed of sale involving properties covered by TCT Nos. 66201, 66202
Rosario, executed on 29 December 1960, and for her appointment as and 66204 supposedly executed by Gliceria del Rosario on 10 January
special administratrix of the latter’s estate, said to be valued at about 1961 in favor of Alfonso Precilla, and, in consequence, said certificates
P100,000.00, pending the appointment of a regular administrator of title were cancelled and new certificates (Nos. 81735, 81736 and
thereof. 81737) were issued in the name of Alfonso Precilla, married to
Consuelo S. Gonzales y Narciso.
The petition was opposed separately by several groups of alleged
heirs: (1) Rev. Fr. Lucio V. Garcia, a legatee named in an earlier will On 25 August 1966, the Court issued an order admitting to probate the
executed by Gliceria A. del Rosario on 9 June 1956; (2) Jaime Rosario 1960 will of Gliceria A. del Rosario (Exhibit "D"). In declaring the due
and children, relatives and legatees in both the 1956 and 1960 wills; execution of the will, the probate court took note that no evidence had
Antonio Jesus de Praga and Marta Natividad de Jesus, wards of the been presented to establish that the testatrix was not of sound mind
deceased and legatees in the 1956 and 1960 wills; (3) Remedios, when the will was executed; that the fact that she had prepared an
Encarnacion, and Eduardo, all surnamed Narciso; (4) Natividad del earlier will did not, prevent her from executing another one thereafter;
Rosario-Sarmiento; (5) Maria Narciso; (6) Pascuala Narciso de that the fact that the 1956 will consisted of 12 pages whereas the 1960
testament was contained in one page does not render the latter invalid; apparently of clear and sound mind, although she was being aided by
that, the erasures and alterations in the instrument were insignificant to Precilla when she walked; 3 that the will, which was already prepared,
warrant rejection; that the inconsistencies in the testimonies of the was first read "silently" by the testatrix herself before she signed it; 4
instrumental witnesses which were noted by the oppositors are even that he three witnesses thereafter signed the will in the presence of the
indicative of their truthfulness. The probate court, also considering that testatrix and the notary public and of one another. There is also
petitioner had already shown capacity to administer the properties of testimony that after the testatrix and the witnesses to the will
the estate and that from the provisions of the will she stands as the acknowledged the instrument to be their voluntary act and deed, the
person most concerned and interested therein, appointed said notary public asked for their respective residence certificates which
petitioner regular administratrix with a bond for P50,000.00. From this were handed to him by Alfonso Precilla, clipped together; 5 that after
order all the oppositors appealed, the case being docketed in this comparing them with the numbers already written on the will, the
Court as G.R. No. L-27200. notary public filled in the blanks in the instrument with the date, 29
January 1960, before he affixed his signature and seal thereto. 6 They
Then, on 13 September 1966, the probate court resolved the also testified that on that occasion no pressure or influence has been
oppositors’ motion of 14 December 1965 for the removal of the then exerted by any person upon the testatrix to execute the will.
special administratrix, as follows:jgc:chanrobles.com.ph
Of course, the interest and active participation of Alfonso Precilla in the
"It would seem that the main purpose of the motion to remove the signing of this 1960 will are evident from the records. The will
special administratrix and to appoint another one in her stead, is in appeared to have been prepared by one who is not conversant with
order that an action may be filed against the special administratrix for the spelling of Tagalog words, and it has been shown that Alfonso
the annulment of the deed of sale executed by the decedent on Precilla is a Cebuano who speaks Tagalog with a Visayan accent. 7
January 10, 1961. Under existing documents, the properties sold The witnesses to the will, two of whom are fellow Visayans, 8 admitted
pursuant to the said deed of absolute sale no longer forms part of the their relationship or closeness to Precilla. 9 It was Precilla who
estate. The alleged conflict of interest is accordingly not between instructed them to go to the house of Gliceria del Rosario on 29
different claimants of the same estate. If it is desired by the movants December 1960 to witness an important document, 10 and who took
that an action be filed by them to annul the aforesaid deed absolute their residence certificates from them a few days before the will was
sale, it is not necessary that the special administratrix be removed and signed. 11 Precilla had met the notary public and witnesses Rosales
that another one be appointed to file such action. Such a course of and Lopez at the door of the residence of the old woman; he ushered
action would only produce confusion and difficulties in the settlement of them to the room at the second floor where the signing of the
the estate. The movants may file the aforesaid proceedings, preferably document took place; 12 then he fetched witness Decena from the
in an independent action, to secure the nullity of the deed of absolute latter’s haberdashery shop a few doors away and brought him to, the
even without leave of this court:" house the testatrix. 13 And when the will was actually executed
Precilla was present. 14
As regard the motion of 17 December 1965 asking for the deposit in
court of the titles in the name of the decedent, the same was also The oppositors-appellants in the present case, however, challenging
denied, for the reason that if the movants were referring to the old the correctness of the probate court’s ruling, maintain that on 29
titles, they could no longer be produced, and if they meant the new December 1960 the eyesight of Gliceria del Rosario was so poor and
duplicate copies thereof that were issued at the instance of the special defective that she could not have read the provisions of the will,
administratrix, there would be no necessity therefor, because they contrary to the testimonies of witnesses Decena, Lopez and Rosales.
were already cancelled and other certificates were issued in the name
of Alfonso Precilla. This order precipitated the oppositors’ filing in this On this point, we find the declarations in court of Dr. Jesus V. Tamesis
Court of a petition for mandamus (G.R. No. L-26615, Rev. Fr. Lucio V. very material and illuminating. Said ophthalmologist, whose expertise
Garcia, Et. Al. v. Hon. Judge Conrado M. Vasquez, Et. Al.), which was was admitted by both parties, testified, among other things, that when
given due course on 6 October 1966. Doña Gliceria del Rosario saw him for consultation on 11 March 1960
he found her left eye to have cataract (opaque lens), 15 and that it was
On 15 December 1965, with that motion for removal pending in the "above normal in pressure", denoting a possible glaucoma, a disease
court, the oppositors requested the Register of Deeds of Manila to that leads to blindness 16 As to the conditions of her right eye, Dr.
annotate a notice of lis pendens in the records of TCT Nos. 81735, Tamesis declared:jgc:chanrobles.com.ph
81736, and 81737 in the name of Alfonso Precilla. And when said
official refused to do so, they applied to the probate court (in Sp. Proc. "Q But is there anything here in the entry appearing in the other
No. 62618) for an order to compel the Register of Deeds to annotate a documents Exhibits 3-B, 3-C and 3-D from which you could inform the
lis pendens notice in the aforementioned titles contending that the court as to the condition of the vision of the patient as to the right eve?
matter of removal and appointment of the administratrix, involving TCT
Nos. 81735, 81736, and 81737, was already before the Supreme "A Under date of August 30, 1960, is the record of refraction. that is
Court. Upon denial of this motion on 12 November 1966, oppositors setting of glass by myself which showed that the right eye with my
filed another mandamus action, this time against the probate court and prescription of glasses had a vision of 2 over 60 (20/60) and for the left
the Register of Deeds. The case was docketed and given due course eye with her correction 20 over 300 (20/300).
in this Court as G.R. No. L-26864.
"Q In layman’s language, Doctor, what is the significance of that
Foremost of the questions to be determined here concerns the notation that the right had a degree of 20 over 60 (20/60)?
correctness of the order allowing the probate of the 1960 will.
"A It meant that eye at least would be able to recognize objects or
The records of the probate proceeding fully establish the fact that the persons at a minimum distance of twenty feet.
testatrix, Gliceria A. del Rosario, during her lifetime, executed two wills:
one on 9 June 1956 consisting of 12 pages and written in Spanish, a "Q But would that grade enable the patient to read print?
language that she knew and spoke, witnessed by Messrs. Antonio
Cabrera, Jesus Y. Ayala and Valentin Marquez, and acknowledged "A Apparently that is only a record for distance vision, for distance
before notary public Jose Ayala; and another dated 29 December sight, not for near."cralaw virtua1aw library
1960, consisting of 1 page and written in Tagalog, witnessed by
Messrs. Vicente Rosales, Francisco Decena, and Francisco Lopez and (pages 20-21, t.s.n., hearing of 23 March 1966)
acknowledged before notary public Remigio M. Tividad.
The records also show that although Dr. Tamesis operated of the left
Called to testify on the due execution of the 1960 will, instrumental eye of the decedent at the Lourdes Hospital on 8 August 1960; as of
witnesses Decena, Lopez and Rosales uniformly declared that they 23 August 1960, inspite of the glasses her vision was only "counting
were individually requested by Alfonso Precilla (the late husband of fingers," 17 at five feet. The cross-examination of the doctor further
petitioner special administratrix) to witness the execution of the last will elicited the following responses:jgc:chanrobles.com.ph
of Doña Gliceria A. del Rosario; that they arrived at the house of the
old lady at No. 2074 Azcarraga, Manila, one after the other, in the "Q After she was discharged from the hospital you prescribed lenses
afternoon of 29 December 1960; that the testatrix at the time was for her, or glasses?
containing the final disposition of one’s worldly possessions should be
"A After her discharge from the hospital, she was coming to my clinic embodied in an informal and untidily written instrument; or that the
for further examination and then sometime later glasses were glaring spelling errors should have escaped her notice if she had
prescribed. actually retained the ability to read the purported will and had done so.
The record is thus convincing that the supposed testatrix could not
x x x have physically read or understood the alleged testament, Exhibit "D",
and that its admission to probate was erroneous and should be
reversed.
"Q And the glasses prescribed by you enabled her to read, Doctor?
That Doña Gliceria should be able to greet her guests on her birthday,
"A As far as my record is concerned, with the glasses for the left eye arrange flowers and attend to kitchen tasks shortly prior to the alleged
which I prescribed — the eye which I operated — she could see only execution of the testament Exhibit "D", as appears from the
forms but not read. That is on the left eye. photographs, Exhibits "E" to "E-1", in no way proves; that she was able
to read a closely typed page, since the acts shown do not require
"Q How about the right eye? vision at close range. It must be remembered that with the natural
lenses removed, her eyes had lost the power of adjustment to near
"A The same, although the vision on the right eye is even better than vision, the substituted glass lenses being rigid and uncontrollable by
the left eye." (pages 34. 85. t.s.n., hearing of 23 March 1966). her. Neither is the signing of checks (Exhibits "G" to "G-3") by her
indicative of ability to see at normal reading distances. Writing or
Then, confronted with a medical certificate (Exhibit H) issued by him on signing of one’s name, when sufficiently practiced, becomes automatic,
29 November 1965 certifying that Gliceria del Rosario was provided so that one need only to have a rough indication of the place where the
with aphakic lenses and "had been under medical supervision up to signature is to be affixed in order to be able to write it. Indeed, a close
1963 with apparently good vision", the doctor had this to examination of the checks, amplified in the photograph, Exhibit "O", et
say:jgc:chanrobles.com.ph seq., reinforces the contention of oppositors that the alleged testatrix
could not see at normal reading distance: the signatures in the checks
"Q When yon said that she had apparently good vision you mean that are written far above the printed base, lines, and the names of the
she was able to read? payees as well as the amounts written do not appear to be in the
handwriting of the alleged testatrix, being in a much firmer and more
"A No, not necessarily, only able to go around, take care of herself and fluid hand than hers.
see. This I can tell you, this report was made on pure recollections and
I recall she was using her glasses although I recall also that we have to Thus, for all intents and purpose of the rules on probate, the deceased
give her medicines to improve her vision, some medicines to improve Gliceria del Rosario was, as appellant oppositors contend, not unlike a
her identification some more. blind testator, and the due execution of her will would have required
observance of the provisions of Article 808 of the Civil Code.
x x x "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."cralaw virtua1aw library
"Q What about the vision in the right eve, was that corrected by the
glasses? 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
"A Yes, with the new prescription which I issued on 80 August 1960. It illiterate), 18 is to make the provisions thereof known to him, so that he
is in the clinical record. may be able to object if they are not in accordance with his wishes.
That the aim of the law is to insure that the dispositions of the will are
"Q The vision in the right eye was corrected? properly communicated to and understood by the handicapped
testator, thus making them truly reflective of his desire, is evidenced by
"A Yes That is the vision for distant objects."cralaw virtua1aw library the requirement that the will should be read to the latter, not only once
but twice, by two different persons, and that the witnesses have to act
(pages 38, 39, 40. t.s.n., hearing of 23 March 1966). within the range of his (the testator’s) other senses. 19
The foregoing testimony of the ophthalmologist who treated the In connection with the will here in question, there is nothing in the
deceased and, therefore, has first hand knowledge of the actual records to show that the above requisites have been complied with.
condition of her eyesight from August, 1960 up to 1963, fully establish Clearly, as already stated, the 1960 will sought to be probated suffers
the fact that notwithstanding the operation and removal of the cataract from infirmity that affects its due execution.
in her left eye and her being fitted with aphakic lens (used by cataract
patients), her vision remained mainly for viewing distant objects and We also find merit in the complaint of oppositors Lucio V. Garcia, Et
not for reading print. Thus, the conclusion is inescapable that with the Al., against the denial by the probate court of their petition for the
condition of her eyesight in August, 1960, and there is no evidence that removal of Consuelo Gonzales Vda. de Precilla as special
it had improved by 29 December 1960, Gliceria del Rosario was administratrix of the estate of the deceased Doña Gliceria (Petition,
incapable f reading, and could not have read the provisions of the will G.R. No. L-26615, Annex "B").
supposedly signed by her on 29 December 1960. It is worth noting that
the instrumental witnesses stated that she read the instrument The oppositors’ petition was based allegedly on the existence in the
"silently" (t.s.n., pages 164-165). which is a conclusion and not a fact. special administratrix of an interest adverse to that of the estate. It was
their contention that through fraud her husband had caused the
Against the background of defective eyesight of the alleged testatrix, deceased Gliceria del Rosario to execute a deed of sale, dated 10
the appearance of the will, Exhibit "D", acquires striking significance. January 1961, by virtue of which the latter purportedly conveyed unto
Upon its face, the testamentary provisions, the attestation clause and said Alfonso D. Precilla, married to Consuelo Gonzales y Narciso, the
acknowledgment were crammed together into a single sheet of paper, ownership of 3 parcels of land and the improvements thereon,
to much so that the words had to be written very close on the top, assessed at P334,050.00, for the sum of P30,000.00.
bottom and two sides of the paper, leaving no margin whatsoever; the
word "and" had to be written by the symbol" &", apparently to save on In denying the petition, the probate court, in its order of 13 September
space. Plainly, the testament was not prepared with any regard for the 1966 (Annex "P", Petition) reasoned out that since the properties were
defective vision of Doña Gliceria. Further, typographical errors like already sold no longer form part of the estate. The conflict of interest
"HULINH" for "HULING" (last), "Alfonsa" ;or "Alfonso", "MERCRDRS" would not be between the estate and third parties, but among the
for MERCEDES", "instrumental" for "Instrumental", and different claimants of said properties, in which case, according to the
"acknowledged" for "acknowledge’’, remained uncorrected, thereby court, the participation of the special administratrix in the action for
indicating that execution thereof must have been characterized by annulment that may be brought would not be necessary.
haste. It is difficult to understand that so important a document
The error in this line of reasoning lies in the fact that what was being instituting action on behalf of her estate to recover the properties
questioned was precisely the validity of the conveyance or sale of the allegedly sold by her to the late Alfonso D. Precilla. And in Case G.R.
properties. In short, if proper, the action for annulment would have to No. L-26864, petition is dismissed. No costs.
be undertaken on behalf of the estate by the special administratrix,
affecting as it does the property or rights of the deceased. 20 For the 20. Alvarado vs. Gaviola (September 14, 1993)
rule is that only where there is no special proceeding for the settlement BELLOSILLO, J.:
of the estate of the deceased may the legal heirs commence an action Before us is an appeal from the Decision dated 11 April 19861 of the
arising out of a right belonging to their ancestor. 21 First Civil Cases Division of the then Intermediate Appellate Court, now
Court of Appeals, which affirmed the Order dated 27 June 19832 of the
There is no doubt that to settle the question of the due execution and Regional Trial Court of Sta. Cruz, Laguna, admitting to probate the last
validity of the deed of sale, an ordinary and separate action would will and testament3 with codicil4 of the late Brigido Alvarado.
have to be instituted, the matter not falling within the competence of
the probate court. 22 Considering the facts then before it, i.e., the
On 5 November 1977, the 79-year old Brigido Alvarado executed a
alleged deed of sale having been executed by Gliceria del Rosario on
notarial will entitled "Huling Habilin" wherein he disinherited an
10 January 1961, when she was already practically blind; and that the
illegitimate son (petitioner) and expressly revoked a previously
consideration of P30,000.00 seems to be unconscionably small for
executed holographic will at the time awaiting probate before Branch 4
properties with a total assessed value of P334,050.00, there was
of the Regional Trial Court of sta. Cruz, Laguna.
likelihood that a case for annulment might indeed be filed against the
estate or heirs of Alfonso Precilla. And the administratrix, being the
widow and heir of the alleged transferee, cannot be expected to sue As testified to by the three instrumental witnesses, the notary public
herself in an action to recover property that may turn out to belong to and by private respondent who were present at the execution, the
the estate. 22 Not only this, but the conduct of the special testator did not read the final draft of the will himself. Instead, private
administratrix in securing new copies of the owner’s duplicates of TCT respondent, as the lawyer who drafted the eight-paged document, read
Nos. 66201, 66202, and 66204, without the court’s knowledge or the same aloud in the presence of the testator, the three instrumental
authority, and on the pretext that she needed them in the preparation witnesses and the notary public. The latter four followed the reading
of the inventory of the estate, when she must have already known by with their own respective copies previously furnished them.
then that the properties covered therein were already "conveyed" to
her husband by the deceased, being the latter’s successor, and having
the contract bind the land through issuance of new titles in her Meanwhile, Brigido's holographic will was subsequently admitted to
husband’s name cannot but expose her to the charge of unfitness or probate on 9 December 1977. On the 29th day of the same month, a
unsuitableness to discharge the trust, justifying her removal from the codicil entitled "Kasulatan ng Pagbabago sa Ilang Pagpapasiya na
administration of the estate. 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
With respect to the orders of the court a quo denying (1) the
oppositors’ motion to require the Hongkong and Shanghai Bank to was then suffering from glaucoma. But the disinheritance and
report all withdrawals made against the funds of the deceased after 2 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,
September 1965 and (2) the motion for annotation of a lis pendens
notice on TCT Nos. 81735, 81736 and 81737, the same are to be it was private respondent who read it aloud in his presence and in the
affirmed. presence of the three instrumental witnesses (same as those of the
notarial will) and the notary public who followed the reading using their
The probate court pointed out in its order of 22 October 1965 (Annex own copies.
"H") that it could not have taken action on the complaint against the
alleged withdrawals from the bank deposits of the deceased, because A petition for the probate of the notarial will and codicil was filed upon
as of that time the court had not yet been apprised that such deposits the testator's death on 3 January 1979 by private respondent as
exist. Furthermore, as explained by the special administratrix in her executor with the Court of First Instance, now Regional Trial Court, of
pleading of 30 October 1965, the withdrawals referred to by the Siniloan, Laguna.5Petitioner, in turn, filed an Opposition on the
oppositors could be those covered by checks issued in the name of following grounds: that the will sought to be probated was not executed
Gliceria del Rosario during her lifetime but cleared only after her death. and attested as required by law; that the testator was insane or
That explanation, which not only appears plausible but has not been otherwise mentally incapacitated to make a will at the time of its
rebutted by the petitioners-oppositors, negates any charge of grave execution due to senility and old age; that the will was executed under
abuse in connection with the issuance of the order here in question. 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
On the matter of lis pendens (G.R. No. L-26864), the provisions of the stands to get the lion's share of the testator's estate; and lastly, that the
Rules of Court are clear: notice of the pendency of an action may be signature of the testator was procured by fraud or trick.
recorded in the office of the register of deeds of the province in which
the property is situated, if the action affects "the title or the right of
possession of (such) real property." 23 In the case at bar, the pending When the oppositor (petitioner) failed to substantiate the grounds relied
action which oppositors seek to annotate in the records of TCT Nos. upon in the Opposition, a Probate Order was issued on 27 June 1983
81735, 81736, and 81737 is the mandamus proceeding filed in this from which an appeal was made to respondent court. The main thrust
Court (G.R. No. L-26615). As previously discussed in this opinion, of the appeal was that the deceased was blind within the meaning of
however, that case is concerned merely with the correctness of the the law at the time his "Huling Habilin" and the codicil attached thereto
denial by the probate court of the motion for the removal of Consuelo was executed; that since the reading required by Art. 808 of the Civil
Gonzales Vda. de Precilla as special administratrix of the estate of the Code was admittedly not complied with, probate of the deceased's last
late Gliceria del Rosario. In short, the issue in controversy there is will and codicil should have been denied.
simply the fitness or unfitness of said special administratrix to continue
holding the trust; it does not involve or affect at all the title to, or On 11 April 1986, the Court of Appeals rendered the decision under
possession of, the properties covered by said TCT Nos. 81735, 81736 review with the following findings: that Brigido Alvarado was not blind
and 81737. Clearly, the pendency of such case (L-26615) is not an at the time his last will and codicil were executed; that assuming his
action that can properly be annotated in the record of the titles to the blindness, the reading requirement of Art. 808 was substantially
properties. complied with when both documents were read aloud to the testator
with each of the three instrumental witnesses and the notary public
FOR THE FOREGOING REASONS, the order of the court below following the reading with their respective copies of the instruments.
allowing to probate the alleged 1960 will of Gliceria A. del Rosario is The appellate court then concluded that although Art. 808 was not
hereby reversed and set aside. The petition in G.R. No. L-26615 being followed to the letter, there was substantial compliance since its
meritorious, the appealed order is set aside and the court below is purpose of making known to the testator the contents of the drafted will
ordered to remove the administratrix, Consuelo Gonzales Vda. de was served.
Precilla, and appoint one of the heirs intestate of the deceased Doña
Gliceria Avelino del Rosario as special administrator for the purpose of
The issues now before us can be stated thus: Was Brigido Alvarado acknowledged. The purpose is to make known to the incapacitated
blind for purpose of Art, 808 at the time his "Huling Habilin" and its testator the contents of the document before signing and to give him
codicil were executed? If so, was the double-reading requirement of an opportunity to object if anything is contrary to his instructions.
said article complied with?
That Art. 808 was not followed strictly is beyond cavil. Instead of the
Regarding the first issue, there is no dispute on the following facts: notary public and an instrumental witness, it was the lawyer (private
Brigido Alvarado was not totally blind at the time the will and codicil respondent) who drafted the eight-paged will and the five-paged codicil
were executed. However, his vision on both eyes was only of "counting who read the same aloud to the testator, and read them only once, not
fingers at three (3) feet" by reason of the glaucoma which he had been twice as Art. 808 requires.
suffering from for several years and even prior to his first consultation
with an eye specialist on
Private respondent however insists that there was substantial
14 December 1977.
compliance and that the single reading suffices for purposes of the law.
On the other hand, petitioner maintains that the only valid compliance
The point of dispute is whether the foregoing circumstances would or compliance to the letter and since it is admitted that neither the
qualify Brigido as a "blind" testator under Art. 808 which reads: 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.
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. We sustain private respondent's stand and necessarily, the petition
must be denied.
Petitioner contends that although his father was not totally blind when
the will and codicil were executed, he can be so considered within the This Court has held in a number of occasions that substantial
scope of the term as it is used in Art. 808. To support his stand, compliance is acceptable where the purpose of the law has been
petitioner presented before the trial court a medical certificate issued satisfied, the reason being that the solemnities surrounding the
by Dr. Salvador R. Salceda, Director of the Institute of Opthalmology execution of wills are intended to protect the testator from all kinds of
(Philippine Eye Research Institute),6 the contents of which were fraud and trickery but are never intended to be so rigid and inflexible as
interpreted in layman's terms by Dr. Ruperto Roasa, whose expertise to destroy the testamentary privilege. 14
was admitted by private respondent.7 Dr. Roasa explained that
although the testator could visualize fingers at three (3) feet, he could
In the case at bar, private respondent read the testator's will and codicil
no longer read either printed or handwritten matters as of 14
aloud in the presence of the testator, his three instrumental witnesses,
December 1977, the day of his first consultation.8
and the notary public. Prior and subsequent thereto, the testator
affirmed, upon being asked, that the contents read corresponded with
On the other hand, the Court of Appeals, contrary to the medical his instructions. Only then did the signing and acknowledgement take
testimony, held that the testator could still read on the day the will and place. There is no evidence, and petitioner does not so allege, that the
the codicil were executed but chose not to do so because of "poor contents of the will and codicil were not sufficiently made known and
eyesight."9 Since the testator was still capable of reading at that time, communicated to the testator. On the contrary, with respect to the
the court a quo concluded that Art. 808 need not be complied with. "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
We agree with petitioner in this respect.
Alvarado already acknowledged that the will was drafted in accordance
with his expressed wishes even prior to 5 November 1977 when Atty.
Regardless of respondent's staunch contention that the testator was Rino went to the testator's residence precisely for the purpose of
still capable of reading at the time his will and codicil were prepared, securing his conformity to the draft. 15
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
Moreover, it was not only Atty. Rino who read the documents on
"blurred"12 vision making it necessary for private respondent to do the
5 November and 29 December 1977. The notary public and the three
actual reading for him.
instrumental witnesses likewise read the will and codicil, albeit silently.
Afterwards, Atty. Nonia de la Pena (the notary public) and Dr.
The following pronouncement in Garcia vs. Vasquez 13 provides an Crescente O. Evidente (one of the three instrumental witnesses and
insight into the scope of the term "blindness" as used in Art. 808, to wit: 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
The rationale behind the requirement of reading the will to the with their own copies, it can be safely concluded that the testator was
testator if he is blind or incapable of reading the will himself (as when reasonably assured that what was read to him (those which he
he is illiterate), is to make the provisions thereof known to him, so that
affirmed were in accordance with his instructions), were the terms
he may be able to object if they are not in accordance with his wishes . 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.
Clear from the foregoing is that Art. 808 applies not only to blind Evidente) and another (Potenciano C. Ranieses) being known to him
testators but also to those who, for one reason or another, are since childhood.
"incapable of reading the(ir) will(s)." Since Brigido Alvarado was
incapable of reading the final drafts of his will and codicil on the The spirit behind the law was served though the letter was not.
separate occasions of their execution due to his "poor," "defective," or Although there should be strict compliance with the substantial
"blurred" vision, there can be no other course for us but to conclude
requirements of the law in order to insure the authenticity of the will,
that Brigido Alvarado comes within the scope of the term "blind" as it is the formal imperfections should be brushed aside when they do not
used in Art. 808. Unless the contents were read to him, he had no way affect its purpose and which, when taken into account, may only defeat
of ascertaining whether or not the lawyer who drafted the will and
the testator's will. 17
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. 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:
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
The object of the solemnities surrounding the execution of wills is to signing; this testament is written in three (3) sheets marked
close the door against bad faith and fraud, to avoid the substitution of by letter "A", "B" and "C" consecutively on top of each sheet
wills and testaments and to guaranty their truth and authenticity. and upon my request and in my presence and also in the
Therefore the laws on the subject should be interpreted in such a way presence of each of the aforesaid instrumental witnesses,
as to attain these primordial ends. But, on the other hand, also one they also signed this testament already reffered to.
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
I hereby manifest that every sheet of the aforesaid
interpretation already given assures such ends, any other
testament, on the left-hand margin as well as the testament
interpretation whatsoever, that adds nothing but demands more
itself have been signed by me as also each of the witnesses
requisites entirely unnecessary, useless and frustrative of the testator's
has also signed in my presence and in the presence of each
will, must be disregarded(emphasis supplied).
other.

Brigido Alvarado had expressed his last wishes in clear and


unmistakable terms in his "Huling Habilin" and the codicil attached (Sgd.) JOSE VENZON
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 Witnesses:
testator the contents of the draft of his will, had already been
accomplished. To reiterate, substantial compliance suffices where the (Sgd.)NESTORIO TRINIDAD
purpose has been served. (Sgd.) BALDOMERO L. ACHACOSO
(Sgd.) PROCESO CABAL.
WHEREFORE, the petition is DENIED and the assailed Decision of
respondent Court of Appeals dated 11 April 1986 is AFFIRMED. The clause above quoted is the attestation clause reffered to in the law
Considering the length of time that this case has remained pending, which, in our opinion, substantially complies with its requirements. The
this decision is immediately executory. Costs against petitioner. only apparent anomaly we find is that it appears to be an attestation
made by the testator himself more than by the instrumental witnesses.
SO ORDERED. This apparent anomaly, as to affect the validity of the will, it appearing
that right under the signature of the testator, there appear the
signatures of the three instrumental witnesses.

21. Cuevas vs. Achacoso (May 18, 1951) "Instrumental witness, as define by Escriche in his Diccionario
Razonado de Legislacion y Jurisprudencia, Vol. 4, p. 1115, is one who
takes part in the execution of an instrument or writing" (In re will of Tan
BAUTISTA ANGELO, J.: Diuco, 45 Phil., 807, 809). An instrumental witness, therefore, does not
merely attest to the signature of the testator but also to the proper
This is an appeal from an order of the Court of First Instance of execution of the will. The fact that the three instrumental witnesses
Zambales admitting to probate the last will and testament of the late have signed the will immediately under the signature of the testator,
Jose Venzon. shows that they have in fact attested not only to the genuineness of his
signature but also to the due execution of the will as embodied in the
attestation clause.
On January 19, 1946, Jose Venzon died in Iba, Zambales, leaving a
will. In said will the deceased instituted as his heirs, Valentina Cuevas,
his widow and Rosario Asera Venzon, his daughter. He named therein The attestation clause in question bears close similarity with the
his widow as executrix of the will. On February 1, 1946, Valentina attestation clause in the will involved in Aldaba vs. Roque, (43 Phil.,
Cuevas filed a petition for the probate of said will. 378). In that case, the attestation claused formed part of the body of
the will and its recital was made by the testratrix himself and was
signed by her and by the three instrumental witnesses. In upholding
On May 10, 1946, one Pilar Achacoso filed an alternative petition for the validity of the will, the court said:
the probate of a previous will executed by the deceased praying
therein that, if the will submitted by the widow be rejected, the other will
be admitted to probate in lieu thereof. In the previous will there are In reality it appears that it is the testratrix who makes the declaration
other heirs instituted, among them petitioner Pilar Achacoso. Pilar about the points in the last paragraph of the will; however as the
Achacoso objected to the probate of the second will executed by the witnesses together with the testratrix, have signed the said declaration,
deceased on October 10, 1945. After due hearing, the court found that we are of the opinion and so hold that the words above quoted of the
the latter will was executed in accordance with law and ordered that it testament constitute a sufficient compliance with the requirements of
be admitted to probate. Pilar Achacoso took the case to the Court of Act No. 2645.
Appeals, but the latter certified it to this Court on the ground that it
involves purely questions of law. As was said in one case, "the object of the solemnities surrounding the
execution of the wills is to close the door against bad faith and fraud, to
The main error assigned refers to the alleged lack of attestation clause avoid substitution of wills and testaments and to guarantee their truth
in the will under consideration, or to the fact that, if there is such and authenticity. Therefore the laws on this subject should be
attestation clause, the same has not been signed by the instrumental intrepreted in such a way as to attain this premordial ends. But on the
witnesses, but by the testator himself, and it is claimed that this defect other hand, also one must not lose sight of the fact that it is not the
has the effect of invalidating the will. 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
The will in question, after reciting in separate paragraphs, and under requisites entirely unnecessary, useless and frustrative of the testator's
correlative numbers, the provisions of the will, winds up with the will, must be disregarded." (In re will of Tan Diuco, supra, p. 811.)
following clause: (Emphasis supplied.)

IN WITNESS WHEREOF, I sign this testament or last will in Expressive of this liberal view of interpretation, are also the following
the municipality of Iba, Zambales, Philippines, this 10th day rules embodied in the new Civil Code. These provisions, although not
of October, 1945, in the presence of the three witnesses, directly applicable, are however, significant because they project the
namely Dr. Nestorio Trinidad, Don Baldomero Achacoso, point of view of our legislature when it adopted them having in view the
and Mr. Proceso Cabal as instrumental witnesses to my existing law and jurisprudence on the matter.
. 788. If a testamentary disposition admits of different interpretations, in clause must show on its face a compliance with the law. But this does
case of doubt, that interpretation by which the disposition is to be not preclude an examination of the will, and here the will itself shows
operative shall be preferred. that the testatrix and the witnesses signed on the left-hand margin of
the two pages; that the testatrix signed at the end of the will, and that
the witnesses signed at the end of the attestation clause. The
Art. 791. The words of a will are to receive an interpretation which will
attestation clause is a part of the instrument which so closely, if not
give to every expressions inoperative; and of two modes of interpreting
literally, adheres to the law of wills.
a will, that is to be preferred which will prevent intestacy.

It has been observed during our deliberations that a decision upholding


Wherefore, the order appealed from is hereby affirmed, with costs
the will before us would run counter to a uniform line of authorities to
against the appellant.
the contrary. That is hardly an exact statement. The truth is that there
have been noticeable in the Philippines two divergent tendencies in the
law of wills — the one being planted on strict construction and the
22. Dichoso vs. Gorostiza (October 31, 1932) other on liberal construction. A late example of the former views may
MALCOLM, J.: be found in the decision in Rodriguez vs. Alcala ([1930], 55 Phil., 150),
The will of the deceased Caridad Alcantara de Gorostiza was denied sanctioning a literal enforcement of the law. The basic case in the
probate in the trial court, for the reason that the attestation clause other direction, predicated on reason, is Abangan vs. Abangan ([1919],
failed to state that the testatrix signed every page of the will as 40 Phil., 476), oft-cited approvingly in later decisions.
required by section 618, as amended, of the Code of Civil Procedure.
The attestation clause in question reads:
The attestation clause here is an exact transcription of the form found
in former Justice Fisher's New Encyclopedia of Philippine Legal Forms,
"We the undersigned attesting witnesses, whose residences are stated third edition, page 495, except that, by typographical error, the word
opposite our respective names, do hereby certify that the testatrix, "published" has been written "publish". So it would be a safe
whose name is signed hereinabove, has publish unto us the foregoing assumption that there are other wills in this jurisdiction having similar
will consisting of two pages as her Last Will and Testament and has attestation clauses. A decision against the will in this case might
signed the same in our presence, and in witness whereof we have accordingly have far-reaching and disastrous results.
each signed the same and each page thereof in the presence of said
testatrix and in the presence of each other." The single question is, if
Legalistic formalities should not be permitted to obscure the use of
the attestation clause above quoted is fatally defective and so annuls
good sound common sense in the consideration of wills and to
the will, or if the said attestation clause conforms to the law and so
frustrate the wishes of deceased persons solemnly expressed in
permits the court to respect the wishes of the deceased and to sustain
testaments, regarding the execution of which there is not even a hint of
the will.
bad faith or fraud. We find the attestation clause legally sufficient, and
order that the will of the deceased Caridad Alcantara de Gorostiza be
The theses of the appellant and the appellee are as far apart as the admitted to probate.
poles. Appellant says that when the attestation clause mentions "the
testratrix, whose name is signed hereinabove", the word "hereinabove"
Judgment reversed, the costs of both instances to be paid by the
should be taken as not only referring to the signature at the end of the
appellee.
will but to the signatures on the margin of its two pages, and that when
later the attestation clause mentions "the foregoing will consisting of
two pages as her Last Will and Testament, and has signed the same", 23. Merza vs. Porras (May 25, 1953)
the word "same" refers to the two pages of the will and not to the will
itself. Appellee on the other hand maintains that in the attestation
TUAZON , J.:
clause, all that has been said about the testatrix, "whose name is
signed hereinabove" is that "she has signed the same (will) in our
(witnesses) presence", and that the attestation clause does not set This is an appeal from the Court of Appeals which affirmed an order of
forth that the testatrix has signed every page of the will in the presence the Court of First Instance of Zambales denying the probate of the last
of the attesting witnesses. will and testament and so-called codicil, identified as Exhibits A and B,
of Pilar Montealegre, deceased. The testatrix was survived by the
husband and collateral relatives, some of whom, along with the
Placing the attestation clause under the judicial microscope, we
husband, were disinherited in Exhibit B for the reasons set forth
observe, after analytical study, that it shows compliance with statutory
therein.
provisions. We must reject as untenable the interpretation of the
appellant relative to the word "hereinabove", for this simply has
reference to the signature of the testatrix at the end of the will. We The opposition to Exhibit A was predicated on alleged defects of the
must reject also as untenable the interpretation of the appellant that attestation clause. Written in the local dialect known to the testatrix, the
the word "same" refers back to "pages" and not to "will", for such an attestation clause, as translated into English in the record on appeal,
interpretation would be inconsistent with the language used further on reads:
in the attestation clause where mention is made of the signing by the
witnesses of "the same and each page thereof", meaning the will and
The foregoing instrument consisting of three pages, on the
each page thereof. We are, however, clear that when the attestation
clause states that the testatrix "has publish unto us the foregoing will date above-mentioned, was executed, signed and published
consisting of two pages as her Last Will and Testament, and has by testatrix Pilar Montealegre and she declared that the said
instrument is her last will and testament; that in our presence
signed the same", the word "same" signifies the foregoing will
consisting of two pages, which necessarily implies the signature by the and also in the very presence of the said testatrix as likewise
testatrix of the will and every page thereof. In our judgment, an in the presence of two witnesses and the testatrix each of us
three witnesses signed this a testament.
interpretation sustaining the validity of the attestation clause is neither
forced nor illogical.
The opponent objected that this clause did not estate that the tetratrix
and the witnesses had signed each and every page of the will or that
Precision of language in the drafting of an attestation clause is
desirable. However, it is not imperative that a parrot-like copy of the she had signed the instrument in the presence of the witnesses. The
words of the statute be made. It is sufficient if from the language Appellate Court dismissed the first objection, finding that "failure to
estate in the attestation clause in question that the testatrix and/or the
employed it can reasonably de deduced that the attestation clause
fulfills what the law expects of it. witnesses had signed each and every page of Exhibit A were cured by
the fact that each one of the page of the instrument appears to be
signed by the testatrix and the three attesting witnesses
There is another aspect to the case. Evidence of course may not be (Nayve vs. Mojal, 47 Phil., 152, (1924); Ticson vs. Gorostiza, 57 Phil.,
admitted to supply omissions in an attestation clause. The attestation (1932); Leynes vs. Leynes, 40 Off. Gaz., 3rd Suppl. (October 18,
1939), 510, 528; Rallos vs. Rallos, 44 Off. Gaz., 4938, 4940)." But contrary — and there is none in this jurisdiction — it is the general,
granting the correctness of the premise, the court held the second well-established rule that two separate and distinct wills may be
objection well taken and thus concluded: "The question whether the probated if one does not revoke the other (68 C.J., 885) and provided
testatrix had signed in the presence of said witnesses can not be that the statutory requirements relative to the execution of wills have
verified upon physical examination of the instrument. Hence, the been complied with (Id. 881). As seen, Exhibit B embodied all the
absence of the require statement in said clause may not, pursuant to requisites of a will, even free of such formal of literary imperfections as
the decisions of the Supreme Court, be offset by proof aliunde even if are found in Exhibit A.
admitted without any objection."
It also follows that Exhibit B is a legal and effective vehicle for
The premise of the conclusion is, in our opinion, incorrect. excluding lawful heirs from testate or intestate succession. Article 849
of the Civil Code of Spain does not, as the appealed decision seems to
insinuate, require that the disinheritance should be accomplished in the
It must be admitted that the attestation clause was very poor drawn, its
same instrument by which the maker provides the disposition of his or
language exceedingly ungrammatical to the point of being difficult to
her property after his or death. This article merely provides that
understand; but from a close examination of the whole context in
"disinheritance can be affected only by a will (any will) in which the
relation to its purpose the implication seems clear that the testatrix
legal cause upon which it is based is expressly stated."
signed in the presence of the witnesses. Considering that the
witnesses' only business at hand was to sign and attest to the
testatrix's signing of the document, and that the only actors of the It is our judgment therefore that the instruments Exhibit A and B
proceeding were the maker and the witnesses acting and speaking admitted to probate, subject of courts to the right of the disinherited
collectively and in the first person, the phrase "in our presence," used person under particle 850 to contest the disinheritance, and it is so
as it was in connection with the process of signing, can not imply ordered, with costs against the appellee.
anything but the testatrix signed before them. No other inference is
possible. The prepositional phrase "in our presence" denotes an active
24. Gan vs. Yap (August 30, 1958)
verb and the verb a subject. The verb could not be other than signed
and the subject no other than the testatrix.
BENGZON, J.:
On November 20, 1951, Felicidad Esguerra Alto Yap died of heart
The use of the word "also" is no less enlightening. It denotes that, as failure in the University of Santo Tomas Hospital, leaving properties in
each of the witnesses sign in the presence of the testatrix and of one Pulilan, Bulacan, and in the City of Manila.
another, so the testatrix sign in similar or like manner — in their
presence.
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
In consonance with the principle of the liberal interpretation, adhered to holographic will allegedly executed by the deceased, substantially in
in numerous later decision of this Court and affirmed and translated these words:
into inactment in the new Civil Code (Article 827), we are constrained
to hold the attestation clause under consideration sufficient and valid.
Nobyembre 5, 1951.
"Precision of language in the drafting of the attestation clause is
desirable. However, it is not imperative that a parrot-like copy of the
word of the statue be made. It is sufficient if from the language Ako, si Felicidad E. Alto-Yap, may asawa, at ganap na pag-
employed it can reasonably be deduced that the attestation clause iisip, ay nagsasalaysay na ang aking kayamanan sa bayan
fulfills what the law expects of it." (Ticson vs. Gorostiza, supra.) ng Pulilan, Bulacan ay aking ipinamamana sa aking mga
kamag-anakang sumusunod:
"It could have been the intention of the legislature in providing for the
essential safeguards in the execution of a will to shackle the very right
of the testamentary disposition which the law recognizes and holds Vicente Esguerra, Sr. ............................................. 5
sacred." (Leynes vs.Leynes, supra.) Fausto E. Gan ......................................................... 2
Rosario E. Gan ......................................................... 2
With reference of Exhibit B the Court of Appeal agreed with the trial
Filomena Alto .......................................................... 1
court that the document having been executed one day before Exhibit
A could not be considered as a codicil "because a codicil, as the word Beatriz Alto .............................................................. 1
implies, is only an addition to, or modification of, the will." The Court of
Appeals added that "the content of Exhibit B are couched in the
language of ordinarily used in a simple affidavit and as such, may not At ang aking lahat ng ibang kayamanan sa Maynila at iba
have the legal effect and force to a testamentary disposition." panglugar ay aking ipinamamana sa aking asawang si
Furthermore, the Court of Appeals observed, disinheritance "may not Idelfonso D. Yap sa kondisyong siya'y magpapagawa ng
be made in any instrument other than the will of Exhibit A, as expressly isang Health Center na nagkakahalaga ng di kukulangin sa
provided for in article 849 of the Civil Code," and, "there being no halagang P60,000.00 sa bayan ng Pulilan, Bulacan, na
disposition as to the disinheritance of the oppositor, Pedro Lopez nakaukit ang aking pangalang Felicidad Esguerra-Alto. At
Porras (the surviving spouse), in the said Exhibit A, it is quite clear that kung ito ay may kakulangan man ay bahala na ang aking
he can not be disinherited in any other instrument including Exhibit B, asawa ang magpuno upang matupad ang aking kagustuhan.
which is, as above stated, a simple affidavit."

(Lagda) Felicidad E. Alto-Yap.


Exhibit B does partake of the nature of a will. A will is defined in article
667 of the Civil code of Spain as "the act by which a persons dispose
of all his property or a portion of it," and in article 783 of the new Civil
Code as "an act whereby a person is permitted, with the formalities Opposing the petition, her surviving husband Ildefonso Yap asserted
prescribed by law, to control to a certain degree the disposition of his that the deceased had not left any will, nor executed any testament
estate, to take effect after his death. Exhibit B comes within this during her lifetime.
definition.
After hearing the parties and considering their evidence, the Hon.
Being of testamentary character and having been made with all the Ramon R. San Jose, Judge,1 refused to probate the alleged will. A
formalities of law, Exhibit B is entitled to probate as an independent seventy-page motion for reconsideration failed. Hence this appeal.
testementary desposition. In the absence of any legal provision to the
The will itself was not presented. Petitioner tried to establish its In the face of these improbabilities, the trial judge had to accept the
contents and due execution by the statements in open court of Felina oppositor's evidence that Felicidad did not and could not have
Esguerra, Primitivo Reyes, Socorro Olarte and Rosario Gan Jimenez, executed such holographic will.
whose testimonies may be summarized as follows:
In this appeal, the major portion of appellant's brief discussed the
Sometime in 1950 after her last trip abroad, Felicidad Esguerra testimony of the oppositor and of his witnesses in a vigorous effort to
mentioned to her first cousin, Vicente Esguerra, her desire to make a discredit them. It appears that the same arguments, or most of them,
will. She confided however that it would be useless if her husband were presented in the motion to reconsider; but they failed to induce
discovered or knew about it. Vicente consulted with Fausto E. Gan, the court a quo to change its mind. The oppositor's brief, on the other
nephew of Felicidad, who was then preparing for the bar examinations. hand, aptly answers the criticisms. We deem it unnecessary to go over
The latter replied it could be done without any witness, provided the the same matters, because in our opinion the case should be decided
document was entirely in her handwriting, signed and dated by her. not on the weakness of the opposition but on the strength of the
Vicente Esguerra lost no time in transmitting the information, and on evidence of the petitioner, who has the burden of proof.
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
The Spanish Civil Code permitted the execution of holographic wills
holographic will substantially of the tenor above transcribed, in the
along with other forms. The Code of Civil Procedure (Act 190)
presence of her niece, Felina Esguerra (daughter of Vicente), who was
approved August 7, 1901, adopted only one form, thereby repealing
invited to read it. In the afternoon of that day, Felicidad was visited by a
the other forms, including holographic wills.
distant relative, Primitivo Reyes, and she allowed him to read the will in
the presence of Felina Esguerra, who again read it.
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
Nine days later, he had other visitors: Socorro Olarte a cousin, and
entirely written, dated, and signed by the hand of the testator himself. It
Rosario Gan Jimenez, a niece. To these she showed the will, again in
is subject to no other form and may be made in or out of the
the presence of Felina Esguerra, who read it for the third time.
Philippines, and need not be witnessed."

When on November 19, 1951, Felicidad was confined at the U.S.T.


This is indeed a radical departure from the form and solemnities
Hospital for her last illness, she entrusted the said will, which was
provided for wills under Act 190, which for fifty years (from 1901 to
contained in a purse, to Felina Esguerra. But a few hours later,
1950) required wills to be subscribed by the testator and three credible
Ildefonso Yap, her husband, asked Felina for the purse: and being
witnesses in each and every page; such witnesses to attest to the
afraid of him by reason of his well-known violent temper, she delivered
number of sheets used and to the fact that the testator signed in their
it to him. Thereafter, in the same day, Ildefonso Yap returned the purse
presence and that they signed in the presence of the testator and of
to Felina, only to demand it the next day shortly before the death of
each other.
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
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
From the oppositor's proof it appears that Felicidad Esguerra had been
guarantee their truth and authencity (Abangan vs. Abangan, 40 Phil.,
suffering from heart disease for several years before her death; that
476) and to avoid those who have no right to succeed the testator
she had been treated by prominent physicians, Dr. Agerico Sison, Dr.
would succeed him and be benefited with the probate of same.
Agustin Liboro and others; that in May 1950 husband and wife
(Mendoza vs. Pilapil, 40 Off. Gaz., 1855). However, formal
journeyed to the United States wherein for several weeks she was
imperfections may be brushed aside when authenticity of the
treated for the disease; that thereafter she felt well and after visiting
instrument is duly proved. (Rodriguez vs Yap, 40 Off. Gaz. 1st Supp.
interesting places, the couple returned to this country in August 1950.
No. 3 p. 194.)
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 Authenticity and due execution is the dominant requirements to be
alarmed, even the teachers of the Harvardian Colleges occupying the fulfilled when such will is submitted to the courts for allowance. For that
lower floors and of by the Yap spouses. Physician's help was hurriedly purpose the testimony of one of the subscribing witnesses would be
called, and Dr. Tanjuaquio arrived at about 8:00 a.m., found the patient sufficient if there is no opposition (Sec. 5, Rule 77). If there is, the three
hardly breathing, lying in bed, her head held high by her husband. must testify, if available. (Cabang vs. Delfinado, 34 Phil., 291;
Injections and oxygen were administered. Following the doctor's advice Tolentino vs. Francisco, 57 Phil., 742). From the testimony of such
the patient stayed in bed, and did nothing the whole day, her husband witnesses (and of other additional witnesses) the court may form its
and her personal attendant, Mrs. Bantique, constantly at her side. opinion as to the genuineness and authenticity of the testament, and
These two persons swore that Mrs. Felicidad Esguerra Yap made no the circumstances its due execution.
will, and could have made no will on that day.
Now, in the matter of holographic wills, no such guaranties of truth and
The trial judge refused to credit the petitioner's evidence for several veracity are demanded, since as stated, they need no witnesses;
reasons, the most important of which were these: (a) if according to his provided however, that they are "entirely written, dated, and signed by
evidence, the decedent wanted to keep her will a secret, so that her the hand of the testator himself." The law, it is reasonable to suppose,
husband would not know it, it is strange she executed it in the regards the document itself as material proof of authenticity, and as its
presence of Felina Esguerra, knowing as she did that witnesses were own safeguard, since it could at any time, be demonstrated to be — or
unnecessary; (b) in the absence of a showing that Felina was a not to be — in the hands of the testator himself. "In the probate of a
confidant of the decedent it is hard to believe that the latter would have holographic will" says the New Civil Code, "it shall be necessary that at
allowed the former to see and read the will several times; (c) it is least one witness who knows the handwriting and signature of the
improbable that the decedent would have permitted Primitivo Reyes, testator explicitly declare that the will and the signature are in the
Rosario Gan Jimenez and Socorro Olarte to read her will, when she handwriting of the testator. If the will is contested, at least three such
precisely wanted its contents to remain a secret during her lifetime; (d) witnesses shall be required. In the absence of any such witnesses,
it is also improbable that her purpose being to conceal the will from her (familiar with decedent's handwriting) and if the court deem it
husband she would carry it around, even to the hospital, in her purse necessary, expert testimony may be resorted to."
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 The witnesses so presented do not need to have seen the execution of
returned it without destroying the will, the theory of the petitioner being the holographic will. They may be mistaken in their opinion of the
handwriting, or they may deliberately lie in affirming it is in the
precisely that the will was executed behind his back for fear he will
destroy it. 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 document is not presented for their examination. If it be argued that
written by the hand of the deceased. (Sec. 50, Rule 123). And the such choice is not essential, because anyway the relatives may
court, in view of such contradictory testimony may use its own visual oppose, the answer is that their opposition will be at a distinct
sense, and decide in the face of the document, whether the will disadvantage, and they have the right and privilege to comply with the
submitted to it has indeed been written by the testator. will, if genuine, a right which they should not be denied by withholding
inspection thereof from them.
Obviously, when the will itself is not submitted, these means of
opposition, and of assessing the evidence are not available. And then We find confirmation of these ideas--about exhibition of the document
the only guaranty of authenticity3 — the testator's handwriting — has itself--in the decision of the Supreme Court of Spain of June 5, 1925,
disappeared. 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
Therefore, the question presents itself, may a holographic will be
from it. Even in the face of allegations and testimonial evidence (which
probated upon the testimony of witnesses who have allegedly seen it
was controverted), ascribing the mutilation to the opponents of the will.
and who declare that it was in the handwriting of the testator? How can
The aforesaid tribunal declared that, in accordance with the provision
the oppositor prove that such document was not in the testator's
of the Civil Code (Spanish) the will itself, whole and unmutilated, must
handwriting? His witnesses who know testator's handwriting have not
be presented; otherwise, it shall produce no effect.
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 Considerando que sentado lo anterior, y estableciendose en
caught between the upper millstone of his lack of knowledge of the will el parrafo segundo del articulo 688 del Codigo civil, que para
or the form thereof, and the nether millstone of his inability to prove its que sea valido el testamento olografo debera estar escrito
falsity. Again the proponent's witnesses may be honest and truthful; todo el y firmado por testador, con expression del año, mes
but they may have been shown a faked document, and having no y dia en que se otorque, resulta evidente que para la validez
interest to check the authenticity thereof have taken no pains to y eficacia de esos testamentos, no basta la demostracion
examine and compare. Or they may be perjurers boldly testifying, in mas o menos cumplida de que cuando se otorgaron se
the knowledge that none could convict them of perjury, because no Ilenaron todos esos requisitos, sino que de la expresada
one could prove that they have not "been shown" a document redaccion el precepto legal, y por el tiempo en que el verbo
which they believed was in the handwriting of the deceased. Of course, se emplea, se desprende la necesidad de que el documento
the competency of such perjured witnesses to testify as to the se encuentre en dichas condiciones en el momento de ser
handwriting could be tested by exhibiting to them other writings presentado a la Autoridad competente, para au adveracion y
sufficiently similar to those written by the deceased; but what witness protocolizacion; y como consecuencia ineludible de ello,
or lawyer would not foresee such a move and prepare for it? His forzoso es affirmar que el de autos carece de validez y
knowledge of the handwriting established, the witness (or witnesses) aficacia, por no estarfirmado por el testador, cualquiera que
could simply stick to his statement: he has seen and read a document sea la causa de la falta de firma, y sin perjuicio de las
which he believed was in the deceased's handwriting. And the court acciones que puedan ejercitar los perjudicados, bien para
and the oppositor would practically be at the mercy of such witness (or pedir indemnizacion por el perjuicio a la persona culpable, si
witnesses) not only as to the execution, but also as to the contents of la hubiere, o su castigo en via criminal si procediere,
the will. Does the law permit such a situation? por constituir dicha omision un defecto insubsanable . . . .

The Rules of Court, (Rule 77) approved in 1940 allow proof (and This holding aligns with the ideas on holographic wills in the Fuero
probate) of a lost or destroyed will by secondary — evidence the Juzgo, admittedly the basis of the Spanish Civil Code provisions on the
testimony of witnesses, in lieu of the original document. Yet such Rules matter.6
could not have contemplated holographic wills which could not then be
validly made here. (See also Sec. 46, Rule 123; Art. 830-New Civil
PRECEDENTES LEGALES--Fuero Juzgo, libro segundo,
Code.)
titulo V, ley 15--E depues que los herederos e sus fijos
ovieren esta manda, fasta ... annos muestrenla al obispo de
Could Rule 77 be extended, by analogy, to holographic wills? 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
Spanish commentators agree that one of the greatest objections to the
semjara la letra de la manda, sea confirmada la manda. E
holographic will is that it may be lost or stolen4 — an implied admission
depues que todo esto fuere connoscido, el obispo o el juez,
that such loss or theft renders it useless..
o otras testimonios confirmen el escripto de la manda otra
vez, y en esta manera vala la manda. (Art. 689, Scaevola--
This must be so, because the Civil Code requires it to be protocoled Codigo Civil.)
and presented to the judge, (Art. 689) who shall subscribe it and
require its identity to be established by the three witnesses who
(According to the Fuero above, the will itself must be compared with
depose that they have no reasonable doubt that the will was written by
specimens of the testators handwriting.)
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, All of which can only mean: the courts will not distribute the property of
to a greater degree. It requires that the surviving spouse and the the deceased in accordance with his holographic will, unless they are
legitimate ascendants and descendants be summoned so that they shown his handwriting and signature.7
may make "any statement they may desire to submit with respect to
the authenticity of the will." As it is universally admitted that the
Parenthetically, it may be added that even the French Civil Law
holographic will is usually done by the testator and by himself alone, to
considers the loss of the holographic will to be fatal. (Planiol y Ripert,
prevent others from knowing either its execution or its contents, the
Derecho Civil Frances, traduccion por Diaz Cruz, 1946, Tomo V, page
above article 692 could not have the idea of simply permitting such
555).
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 Taking all the above circumstances together, we reach the conclusion
them. 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
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
Under the provisions of Art. 838 of the New Civil Code, we are Judgment affirmed, with costs against petitioner.
empowered to adopt this opinion as a Rule of Court for the allowance
of such holographic wills. We hesitate, however, to make this Rule
25. Azaola vs. Singson (August 5, 1960)
decisive of this controversy, simultaneously with its promulgation.
Anyway, decision of the appeal may rest on the sufficiency, rather the
REYES, J.B.L., J.:
insufficiency, of the evidence presented by petitioner Fausto E. Gan.
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
At this point, before proceeding further, it might be convenient to Special Proceedings No. Q-2640, involves the determination of the
explain why, unlike holographic wills, ordinary wills may be proved by quantity of evidence required for the probate of a holographic will.
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
The established facts are thus summarized in the decision appealed
handwriting itself; in the second, the testimony of the subscribing or
from (Rec. App. pp. 22-24):
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 "Briefly speaking, the following facts were established by the
authenticate. 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
In the case of ordinary wills, it is quite hard to convince three witnesses
herein for probate of the holographic will, submitted the said
(four with the notary) deliberately to lie. And then their lies could be
holographic will (Exh. C) whereby Maria Milagros Azaola
checked and exposed, their whereabouts and acts on the particular
was made the sole heir as against the nephew of deceased
day, the likelihood that they would be called by the testator, their
Cesario Singson; that witness Francisco Azaola testified that
intimacy with the testator, etc. And if they were intimates or trusted
he saw the holographic will (Exh. C) one month, more or
friends of the testator they are not likely to end themselves to any
less, before the death of the testatrix, as the same was
fraudulent scheme to distort his wishes. Last but not least, they can not
handed to him and his wife; that the witness testified also
receive anything on account of the will.
that he recognized all the signatures appearing in the
holographic will (Exh. C) as the handwriting of the testatrix
Whereas in the case of holographic wills, if oral testimony were and to reinforce said statement, witness presented the
admissible9 only one man could engineer the fraud this way: after mortgage (Exh. E), the special power of the attorney (Exh.
making a clever or passable imitation of the handwriting and signature F), and the general power of attorney (Exh. F-1), besides the
of the deceased, he may contrive to let three honest and credible deeds of sale (Exhs. G and G-1) including an affidavit (Exh.
witnesses see and read the forgery; and the latter, having no interest, G-2), and that there were further exhibited in court two
could easily fall for it, and in court they would in all good faith affirm its residence certificates (Exhs. H and H-1) to show the
genuineness and authenticity. The will having been lost — the forger signatures of the testatrix, for comparison purposes; that
may have purposely destroyed it in an "accident" — the oppositors said witness, Azaola, testified that the penmanship
have no way to expose the trick and the error, because the document appearing in the aforesaid documentary evidence is in the
itself is not at hand. And considering that the holographic will may handwriting of the testatrix as well as the signatures
consist of two or three pages, and only one of them need be signed, appearing in the aforesaid documentary evidence is in the
the substitution of the unsigned pages, which may be the most handwriting of the testatrix as well as the signatures
important ones, may go undetected. 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.
If testimonial evidence of holographic wills be permitted, one more
"apparently it must have been written by her" (t.s.n., p. 11).
objectionable feature — feasibility of forgery — would be added to the
However, on page 16 on the same transcript of the
several objections to this kind of wills listed by Castan, Sanchez
stenographic notes, when the same witness was asked by
Roman and Valverde and other well-known Spanish Commentators
counsel if he was familiar with the penmanship and
and teachers of Civil Law.10
handwriting of the deceased Fortunata Vda. de Yance, he
answered positively in the affirmative and when he was
One more fundamental difference: in the case of a lost will, the three asked again whether the penmanship referred to in the
subscribing witnesses would be testifying to a fact which they saw, previous answer as appearing in the holographic will (Exh.
namely the act of the testator of subscribing the will; whereas in the C) was hers (testatrix'), he answered, "I would definitely say
case of a lost holographic will, the witnesses would testify as to their it is hers"; that it was also established in the proceedings that
opinion of the handwriting which they allegedly saw, an opinion which the assessed value of the property of the deceased in
can not be tested in court, nor directly contradicted by the oppositors, Luskot, Quezon City, is in the amount of P7,000.00.
because the handwriting itself is not at hand.
The opposition to the probate was on the ground that (1) the execution
Turning now to the evidence presented by the petitioner, we find of the will was procured by undue and improper pressure and influence
ourselves sharing the trial judge's disbelief. In addition to the dubious on the part of the petitioner and his wife, and (2) that the testatrix did
circumstances described in the appealed decision, we find it hard to not seriously intend the instrument to be her last will, and that the
believe that the deceased should show her will precisely to relatives same was actually written either on the 5th or 6th day of August 1957
who had received nothing from it: Socorro Olarte and Primitivo Reyes. and not on November 20, 1956 as appears on the will.
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
The probate was denied on the ground that under Article 811 of the
leads to another point: if she wanted so much to conceal the will from
Civil Code, the proponent must present three witnesses who could
her husband, why did she not entrust it to her beneficiaries?
declare that the will and the signature are in the writing of the testatrix,
Opportunity to do so was not lacking: for instance, her husband's trip to
the probate being contested; and because the lone witness presented
Davao, a few days after the alleged execution of the will.
by the proponent "did not prove sufficiently that the body of the will was
written in the handwriting of the testatrix."
In fine, even if oral testimony were admissible to establish and probate
a lost holographic will, we think the evidence submitted by herein
The proponent appealed, urging: first, that he was not bound to
petitioner is so tainted with improbabilities and inconsistencies that it
produce more than one witness because the will's authenticity was not
fails to measure up to that "clear and distinct" proof required by Rule
questioned; and second, that Article 811 does not mandatorily require
77, sec. 6.11
the production of three witnesses to identify the handwriting and
signature of a holographic will, even if its authenticity should be denied
Wherefore, the rejection of the alleged will must be sustained. by the adverse party.
Article 811 of the Civil Code of the Philippines is to the following effect: 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
ART. 811. In the probate of a holographic will, it shall be
Juez debe acudir al criterio pericial para que le ilustre acerca
necessary that at least one witness who knows the
de la autenticidad del testamento olografo, aunque ya esten
handwriting and signature of the testator explicitly declare
insertas en los autos del expediente las declaraciones
that the will and the signature are in the handwriting of the
testificales. La prudencia con que el Juez debe de proceder
testator. If the will is contested, at least three of such
en resoluciones de transcendencia asi lo exige, y la indole
witnesses shall be required.
delicada y peligrosa del testamento olografo lo hace
necesario para mayor garantia de todos los interes
In the absence of any competent witnesses referred to in the comprometidos en aquel.
preceding paragraph, and if the court deems it necessary,
expert testimony may be resorted to. (691a).
En efecto, el cotejo pericial de letras puede ser una
confirmacion facultativa del dicho profano de los testigos y
We agree with the appellant that since the authenticity of the will was un modo de desvanecer las ultimas dudas que pudieran
not contested, he was not required to produce more than one witness; ocurrir al Juez acerca de la autenticidad que trata de
but even if the genuineness of the holographic will were contested, we averigaur y declarar. Para eso se ha escrito la frase del
are of the opinion that Article 811 of our present Civil Code can not be citado ultimo apartado, (siempre que el Juez lo estime
interpreted as to require the compulsory presentation of three conveniente), haya habido o no testigos y dudaran o no
witnesses to identify the handwriting of the testator, under penalty of estos respecto de los extremos por que son preguntados.
having the probate denied. Since no witness may have been present at
the execution of a holographic will, none being required by law (Art.
El arbitrio judicial en este caso debe formarse con
810, new Civil Code), it becomes obvious that the existence of witness
independencia de los sucesos y de su significacion, para
possessing the requisite qualifications is a matter beyond the control of
responder debidamente de las resoluciones que haya de
the proponent. For it is not merely a question of finding and producing
dictar.
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 because the law leaves it to the trial court if experts are still
and the signature are in the handwriting of the testator". There may be needed, no unfavourable inference can be drawn from a party's failure
no available witness of the testator's hand; or even if so familiarized, to offer expert evidence, until and unless the court expresses
the witnesses may be unwilling to give a positive opinion. Compliance dissatisfaction with the testimony of the lay witnesses.
with the rule of paragraph 1 of Article 811 may thus become an
impossibility. That is evidently the reason why the second paragraph of
Our conclusion is that the rule of the first paragraph of Article 811 of
Article 811 prescribes that —
the Civil Code is merely directory and is not mandatory.

in the absence of any competent witness referred to in the


Considering, however, that this is the first occasion in which this Court
preceding paragraph, and if the court deems it necessary,
has been called upon to construe the import of said article, the interest
expert testimony may be resorted to.
of justice would be better served, in our opinion, by giving the parties
ample opportunity to adduce additional evidence, including expert
As can be seen, the law foresees the possibility that no qualified witnesses, should the Court deem them necessary.
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
In view of the foregoing, the decision appealed from is set aside, and
will), and provides for resort to expert evidence to supply the
the records ordered remanded to the Court of origin, with instructions
deficiency.
to hold a new trial in conformity with this opinion. But evidence already
on record shall not be retaken. No costs.
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.
26. Rodelas vs. Aranza (December 7, 1982)
Cabang vs. Delfinado, 45 Phil., 291; Tolentino vs. Francisco, 57 Phil.,
RELOVA, J.:
742). But it can not be ignored that the requirement can be considered
This case was certified to this Tribunal by the Court of Appeals for final
mandatory only in the case of ordinary testaments, precisely because
determination pursuant to Section 3, Rule 50 of the Rules of Court.
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 As found by the Court of Appeals:
requiring production of three witnesses must be deemed merely
permissive if absurd results are to be avoided.
... On January 11, 1977, appellant filed a petition with the
Court of First Instance of Rizal for the probate of the
Again, under Article 811, the resort to expert evidence is conditioned holographic will of Ricardo B. Bonilla and the issuance of
by the words "if the Court deem it necessary", which reveal that what letters testamentary in her favor. The petition, docketed as
the law deems essential is that the Court should be convinced of the Sp. Proc. No. 8432, was opposed by the appellees Amparo
will's authenticity. Where the prescribed number of witnesses is Aranza Bonilla, Wilferine Bonilla Treyes Expedita Bonilla
produced and the court is convinced by their testimony that the ill is Frias and Ephraim Bonilla on the following grounds:
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
(1) Appellant was estopped from claiming that the deceased
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 left a will by failing to produce the will within twenty days of
available lines of inquiry, for the state is as much interested as the the death of the testator as required by Rule 75, section 2 of
the Rules of Court;
proponent that the true intention of the testator be carried into effect.

Commenting on analogous provisions of Article 691 of the Spanish (2) The alleged copy of the alleged holographic will did not
contain a disposition of property after death and was not
Civil Code of 1889, the noted Commentator, Mucuis Scaevola (Vol. 12,
2nd Ed., p.421), sagely remarks: intended to take effect after death, and therefore it was not a
will
(3) The alleged hollographic will itself,and not an alleged The only question here is whether a holographic will which was lost or
copy thereof, must be produced, otherwise it would produce cannot be found can be proved by means of a photostatic copy.
no effect, as held in Gam v. Yap, 104 Phil. 509; and 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
(4 ) The deceased did not leave any will, holographic or
least one Identifying witness is required and, if no witness is available,
otherwise, executed and attested as required by law.
experts may be resorted to. If contested, at least three Identifying
witnesses are required. However, if the holographic will has been lost
The appellees likewise moved for the consolidation of the or destroyed and no other copy is available, the will can not be
case with another case Sp. Proc. No, 8275). Their motion probated because the best and only evidence is the handwriting of the
was granted by the court in an order dated April 4, 1977. 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
On November 13, 1978, following the consolidation of the
allowed because comparison can be made with the standard writings
cases, the appellees moved again to dismiss the petition for of the testator. In the case of Gam vs. Yap, 104 PHIL. 509, the Court
the probate of the will. They argued that: ruled that "the execution and the contents of a lost or destroyed
holographic will may not be proved by the bare testimony of witnesses
(1) The alleged holographic was not a last will but merely an who have seen and/or read such will. The will itself must be presented;
instruction as to the management and improvement of the otherwise, it shall produce no effect. The law regards the document
schools and colleges founded by decedent Ricardo B. itself as material proof of authenticity." But, in Footnote 8 of said
Bonilla; and 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
(2) Lost or destroyed holographic wills cannot be proved by deceased may be exhibited and tested before the probate court,"
secondary evidence unlike ordinary wills. Evidently, the photostatic or xerox copy of the lost or destroyed
holographic will may be admitted because then the authenticity of the
Upon opposition of the appellant, the motion to dismiss was handwriting of the deceased can be determined by the probate court.
denied by the court in its order of February 23, 1979.
WHEREFORE, the order of the lower court dated October 3, 1979,
The appellees then filed a motion for reconsideration on the denying appellant's motion for reconsideration dated August 9, 1979,
ground that the order was contrary to law and settled of the Order dated July 23, 1979, dismissing her petition to approve the
pronouncements and rulings of the Supreme Court, to which will of the late Ricardo B. Bonilla, is hereby SET ASIDE.
the appellant in turn filed an opposition. On July 23, 1979,
the court set aside its order of February 23, 1979 and SO ORDERED.
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.