Today is Monday, July 21, 2014

Republic of the Philippines

SUPREME COURT
Manila
SECOND DIVISION
G.R. Nos. 83843-44 April 5, 1990
IN THE MATTER OF THE PETITION TO APPROVE THE WILL OF MELECIO LABRADOR. SAGRADO
LABRADOR (Deceased), substituted by ROSITA LABRADOR, ENRICA LABRADOR, and CRISTOBAL
LABRADOR, petitioners-appellants,
vs.
COURT OF APPEALS,
1
GAUDENCIO LABRADOR, and JESUS LABRADOR, respondents-appellees.
Benjamin C. Santos Law Offices for petitioners.
Rodrigo V. Fontelera for private respondents.

PARAS, J .:
The sole issue in this case is whether or not the alleged holographic will of one Melecio Labrador is dated, as provided for in Article 810
2
of the New Civil Code.
The antecedent and relevant facts are as follows: On June 10, 1972, Melecio Labrador died in the Municipality of Iba, province of
Zambales, where he was residing, leaving behind a parcel of land designated as Lot No. 1916 under Original Certificate of Title No. P-
1652, and the following heirs, namely: Sagrado, Enrica, Cristobal, Jesus, Gaudencio, Josefina, Juliana, Hilaria and Jovita, all surnamed
Labrador, and a holographic will.
On July 28, 1975, Sagrado Labrador (now deceased but substituted by his heirs), Enrica Labrador and Cristobal Labrador, filed in the
court a quo a petition for the probate docketed as Special Proceeding No. 922-I of the alleged holographic will of the late Melecio
Labrador.
Subsequently, on September 30, 1975, Jesus Labrador (now deceased but substituted by his heirs), and Gaudencio Labrador filed an
opposition to the petition on the ground that the will has been extinguished or revoked by implication of law, alleging therein that on
September 30, 1971, that is, before Melecio's death, for the consideration of Six Thousand (P6,000) Pesos, testator Melecio executed a
Deed of Absolute Sale, selling, transferring and conveying in favor of oppositors Jesus and Gaudencio Lot No. 1916 and that as a
matter of fact, O.C.T. No. P-1652 had been cancelled by T.C.T. No. T-21178. Earlier however, in 1973, Jesus Labrador sold said parcel
of land to Navat for only Five Thousand (P5,000) Pesos. (Rollo, p. 37)
Sagrado thereupon filed, on November 28, 1975, against his brothers, Gaudencio and Jesus, for the annulment of said purported Deed
of Absolute Sale over a parcel of land which Sagrado allegedly had already acquired by devise from their father Melecio Labrador
under a holographic will executed on March 17, 1968, the complaint for annulment docketed as Civil Case No. 934-I, being premised on
the fact that the aforesaid Deed of Absolute Sale is fictitious.
After both parties had rested and submitted their respective evidence, the trial court rendered a joint decision dated February 28, 1985,
allowing the probate of the holographic will and declaring null and void the Deed of Absolute sale. The court a quo had also directed the
respondents (the defendants in Civil Case No. 934-I) to reimburse to the petitioners the sum of P5,000.00 representing the redemption
price for the property paid by the plaintiff-petitioner Sagrado with legal interest thereon from December 20, 1976, when it was paid to
vendee a retro.
Respondents appealed the joint decision to the Court of Appeals, which on March 10, 1988 modified said joint decision of the court a
quo by denying the allowance of the probate of the will for being undated and reversing the order of reimbursement. Petitioners' Motion
for Reconsideration of the aforesaid decision was denied by the Court of Appeals, in the resolution of June 13, 1988. Hence, this
petition.
Petitioners now assign the following errors committed by respondent court, to wit:
I
THE COURT OF APPEALS ERRED IN NOT ALLOWING AND APPROVING THE PROBATE OF THE
HOLOGRAPHIC WILL OF THE TESTATOR MELECIO LABRADOR; and
II
THE COURT OF APPEALS ERRED IN FINDING THAT THE ORDER OF THE LOWER COURT DIRECTING
THE REIMBURSEMENT OF THE FIVE THOUSAND PESOS REPRESENTING THE REDEMPTION PRICE
WAS ERRONEOUS.
The alleged undated holographic will written in Ilocano translated into English, is quoted as follows:
ENGLISH INTERPRETATION OF THE WILL OF THE
LATE MELECIO LABRADOR WRITTEN IN ILOCANO
BY ATTY. FIDENCIO L. FERNANDEZ
I First Page
This is also where it appears in writing of the place which is assigned and shared or the partition in favor of
SAGRADO LABRADOR which is the fishpond located and known place as Tagale.
And this place that is given as the share to him, there is a measurement of more or less one hectare, and the
boundary at the South is the property and assignment share of ENRICA LABRADOR, also their sister, and the
boundary in the West is the sea, known as the SEA as it is, and the boundary on the NORTH is assignment
belonging to CRISTOBAL LABRADOR, who likewise is also their brother. That because it is now the time for
me being now ninety three (93) years, then I feel it is the right time for me to partition the fishponds which were
and had been bought or acquired by us, meaning with their two mothers, hence there shall be no differences
among themselves, those among brothers and sisters, for it is I myself their father who am making the
apportionment and delivering to each and everyone of them the said portion and assignment so that there shall
not be any cause of troubles or differences among the brothers and sisters.
II Second Page
And this is the day in which we agreed that we are making the partitioning and assigning the respective
assignment of the said fishpond, and this being in the month of March, 17th day, in the year 1968, and this
decision and or instruction of mine is the matter to be followed. And the one who made this writing is no other
than MELECIO LABRADOR, their father.
Now, this is the final disposition that I am making in writing and it is this that should be followed and complied
with in order that any differences or troubles may be forestalled and nothing will happen along these troubles
among my children, and that they will be in good relations among themselves, brothers and sisters;
And those improvements and fruits of the land; mangoes, bamboos and all coconut trees and all others like the
other kind of bamboo by name of Bayog, it is their right to get if they so need, in order that there shall be
nothing that anyone of them shall complain against the other, and against anyone of the brothers and sisters.
III THIRD PAGE
And that referring to the other places of property, where the said property is located, the same being the fruits
of our earnings of the two mothers of my children, there shall be equal portion of each share among
themselves, and or to be benefitted with all those property, which property we have been able to acquire.
That in order that there shall be basis of the truth of this writing (WILL) which I am here hereof manifesting of
the truth and of the fruits of our labor which their two mothers, I am signing my signature below hereof, and that
this is what should be complied with, by all the brothers and sisters, the children of their two mothers
JULIANA QUINTERO PILARISA and CASIANA AQUINO VILLANUEVA Your father who made this writing
(WILL), and he is, MELECIO LABRADOR y RALUTIN (p. 46, Rollo)
The petition, which principally alleges that the holographic will is really dated, although the date is not in its usual place, is impressed
with merit.
The will has been dated in the hand of the testator himself in perfect compliance with Article 810. It is worthy of note to quote the first
paragraph of the second page of the holographic will, viz:
And this is the day in which we agreed that we are making the partitioning and assigning the respective
assignment of the said fishpond, and this being in the month of March, 17th day, in the year 1968, and this
decision and or instruction of mine is the matter to be followed. And the one who made this writing is no other
than MELECIO LABRADOR, their father. (emphasis supplied) (p. 46, Rollo)
The law does not specify a particular location where the date should be placed in the will. The only requirements are that the date be in
the will itself and executed in the hand of the testator. These requirements are present in the subject will.
Respondents claim that the date 17 March 1968 in the will was when the testator and his beneficiaries entered into an agreement
among themselves about "the partitioning and assigning the respective assignments of the said fishpond," and was not the date of
execution of the holographic will; hence, the will is more of an "agreement" between the testator and the beneficiaries thereof to the
prejudice of other compulsory heirs like the respondents. This was thus a failure to comply with Article 783 which defines a will as "an
act whereby a person is permitted, with the formalities prescribed by law, to control to a certain degree the disposition of his estate, to
take effect after his death."
Respondents are in error. The intention to show 17 March 1968 as the date of the execution of the will is plain from the tenor of the
succeeding words of the paragraph. As aptly put by petitioner, the will was not an agreement but a unilateral act of Melecio Labrador
who plainly knew that what he was executing was a will. The act of partitioning and the declaration that such partitioning as the
testator's instruction or decision to be followed reveal that Melecio Labrador was fully aware of the nature of the estate property to be
disposed of and of the character of the testamentary act as a means to control the disposition of his estate.
Anent the second issue of finding the reimbursement of the P5,000 representing the redemption price as erroneous, respondent court's
conclusion is incorrect. When private respondents sold the property (fishpond) with right to repurchase to Navat for P5,000, they were
actually selling property belonging to another and which they had no authority to sell, rendering such sale null and void. Petitioners,
thus "redeemed" the property from Navat for P5,000, to immediately regain possession of the property for its disposition in accordance
with the will. Petitioners therefore deserve to be reimbursed the P5,000.
PREMISES CONSIDERED, the decision of the Court of Appeals dated March 10, 1988 is hereby REVERSED. The holographic will of
Melecio Labrador is APPROVED and ALLOWED probate. The private respondents are directed to REIMBURSE the petitioners the sum
of Five Thousand Pesos (P5,000.00).
SO ORDERED.
Melencio-Herrera, Padilla, Sarmiento and Regalado, JJ., concur.

Footnotes
1 Penned by Justice Jorge S. Imperial and concurred in by Justices Jose A.R. Melo and Manuel C. Herrera
2 Article 810 provides: A person may execute a holographic will which must be entirely written, dated and signed by the hand of the testator himself.
It is subject to no other form, and may be made in or out of the Philippines, and need not be witnessed.

The Lawphil Project - Arellano Law Foundation





Today is Monday, July 21, 2014






Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-12190 August 30, 1958
TESTATE ESTATE OF FELICIDAD ESGUERRA ALTO-YAP deceased. FAUSTO E. GAN, petitioner-appellant,
vs.
ILDEFONSO YAP, oppositor-appellee.
Benedicto C. Belran, Crispin D. Baizas and Roberto H. Benitez for appellant.
Arturo M. Tolentino for appellee.
BENGZON, J .:
On November 20, 1951, Felicidad Esguerra Alto Yap died of heart failure in the University of Santo Tomas Hospital,
leaving properties in Pulilan, Bulacan, and in the City of Manila.
On March 17, 1952, Fausto E. Gan initiated them proceedings in the Manila court of first instance with a petition for the
probate of a holographic will allegedly executed by the deceased, substantially in these words:
Nobyembre 5, 1951.
Ako, si Felicidad E. Alto-Yap, may asawa, at ganap na pag-iisip, ay nagsasalaysay na ang aking kayamanan
sa bayan ng Pulilan, Bulacan ay aking ipinamamana sa aking mga kamag-anakang sumusunod:
Vicente Esguerra, Sr.
.............................................
5 Bahagi
Fausto E. Gan
.........................................................
2 Bahagi
Rosario E. Gan
.........................................................
2 Bahagi
Filomena Alto
..........................................................
1 Bahagi
Beatriz Alto
..............................................................
1 Bahagi
At ang aking lahat ng ibang kayamanan sa Maynila at iba panglugar ay aking ipinamamana sa aking asawang
si Idelfonso D. Yap sa kondisyong siya'y magpapagawa ng isang Health Center na nagkakahalaga ng di
kukulangin sa halagang P60,000.00 sa bayan ng Pulilan, Bulacan, na nakaukit ang aking pangalang Felicidad
Esguerra-Alto. At kung ito ay may kakulangan man ay bahala na ang aking asawa ang magpuno upang
matupad ang aking kagustuhan.
(Lagda) Felicidad E. Alto-Yap.
Opposing the petition, her surviving husband Ildefonso Yap asserted that the deceased had not left any will, nor executed
any testament during her lifetime.
After hearing the parties and considering their evidence, the Hon. Ramon R. San Jose, Judge,
1
refused to probate the alleged
will. A seventy-page motion for reconsideration failed. Hence this appeal.
The will itself was not presented. Petitioner tried to establish its contents and due execution by the statements in open court
of Felina Esguerra, Primitivo Reyes, Socorro Olarte and Rosario Gan Jimenez, whose testimonies may be summarized as
follows:
Sometime in 1950 after her last trip abroad, Felicidad Esguerra mentioned to her first cousin, Vicente Esguerra, her desire to
make a will. She confided however that it would be useless if her husband discovered or knew about it. Vicente consulted
with Fausto E. Gan, nephew of Felicidad, who was then preparing for the bar examinations. The latter replied it could be
done without any witness, provided the document was entirely in her handwriting, signed and dated by her. Vicente
Esguerra lost no time in transmitting the information, and on the strength of it, in the morning of November 5, 1951, in her
residence at Juan Luna Street, Manila, Felicidad wrote, signed and dated a holographic will substantially of the tenor above
transcribed, in the presence of her niece, Felina Esguerra (daughter of Vicente), who was invited to read it. In the afternoon
of that day, Felicidad was visited by a distant relative, Primitivo Reyes, and she allowed him to read the will in the presence
of Felina Esguerra, who again read it.
Nine days later, he had other visitors: Socorro Olarte a cousin, and Rosario Gan Jimenez, a niece. To these she showed the
will, again in the presence of Felina Esguerra, who read it for the third time.
When on November 19, 1951, Felicidad was confined at the U.S.T. Hospital for her last illness, she entrusted the said will,
which was contained in a purse, to Felina Esguerra. But a few hours later, Ildefonso Yap, her husband, asked Felina for the
purse: and being afraid of him by reason of his well-known violent temper, she delivered it to him. Thereafter, in the same
day, Ildefonso Yap returned the purse to Felina, only to demand it the next day shortly before the death of Felicidad. Again,
Felina handed it to him but not before she had taken the purse to the toilet, opened it and read the will for the last time.
2

From the oppositor's proof it appears that Felicidad Esguerra had been suffering from heart disease for several years before
her death; that she had been treated by prominent physicians, Dr. Agerico Sison, Dr. Agustin Liboro and others; that in May
1950 husband and wife journeyed to the United States wherein for several weeks she was treated for the disease; that
thereafter she felt well and after visiting interesting places, the couple returned to this country in August 1950. However, her
ailment recurred, she suffered several attacks, the most serious of which happened in the early morning of the first Monday
of November 1951 (Nov. 5). The whole household was surprised and alarmed, even the teachers of the Harvardian Colleges
occupying the lower floors and of by the Yap spouses. Physician's help was hurriedly called, and Dr. Tanjuaquio arrived at
about 8:00 a.m., found the patient hardly breathing, lying in bed, her head held high by her husband. Injections and oxygen
were administered. Following the doctor's advice the patient stayed in bed, and did nothing the whole day, her husband and
her personal attendant, Mrs. Bantique, constantly at her side. These two persons swore that Mrs. Felicidad Esguerra Yap
made no will, and could have made no will on that day.
The trial judge refused to credit the petitioner's evidence for several reasons, the most important of which were these: (a) if
according to his evidence, the decedent wanted to keep her will a secret, so that her husband would not know it, it is strange
she executed it in the presence of Felina Esguerra, knowing as she did that witnesses were unnecessary; (b) in the absence of
a showing that Felina was a confidant of the decedent it is hard to believe that the latter would have allowed the former to
see and read the will several times; (c) it is improbable that the decedent would have permitted Primitivo Reyes, Rosario
Gan Jimenez and Socorro Olarte to read her will, when she precisely wanted its contents to remain a secret during her
lifetime; (d) it is also improbable that her purpose being to conceal the will from her husband she would carry it around,
even to the hospital, in her purse which could for one reason or another be opened by her husband; (e) if it is true that the
husband demanded the purse from Felina in the U.S.T. Hospital and that the will was there, it is hard to believe that he
returned it without destroying the will, the theory of the petitioner being precisely that the will was executed behind his back
for fear he will destroy it.
In the face of these improbabilities, the trial judge had to accept the oppositor's evidence that Felicidad did not and could not
have executed such holographic will.
In this appeal, the major portion of appellant's brief discussed the testimony of the oppositor and of his witnesses in a
vigorous effort to discredit them. It appears that the same arguments, or most of them, were presented in the motion to
reconsider; but they failed to induce the court a quo to change its mind. The oppositor's brief, on the other hand, aptly
answers the criticisms. We deem it unnecessary to go over the same matters, because in our opinion the case should be
decided not on the weakness of the opposition but on the strength of the evidence of the petitioner, who has the burden of
proof.
The Spanish Civil Code permitted the execution of holographic wills along with other forms. The Code of Civil Procedure
(Act 190) approved August 7, 1901, adopted only one form, thereby repealing the other forms, including holographic wills.
The New Civil Code effective in 1950 revived holographic wills in its arts. 810-814. "A person may execute a holographic
will which must be entirely written, dated, and signed by the hand of the testator himself. It is subject to no other form and
may be made in or out of the Philippines, and need not be witnessed."
This is indeed a radical departure from the form and solemnities provided for wills under Act 190, which for fifty years
(from 1901 to 1950) required wills to be subscribed by the testator and three credible witnesses in each and every page; such
witnesses to attest to the number of sheets used and to the fact that the testator signed in their presence and that they signed
in the presence of the testator and of each other.
The object of such requirements it has been said, is to close the door against bad faith and fraud, to prevent substitution of
wills, to guarantee their truth and authencity (Abangan vs. Abangan, 40 Phil., 476) and to avoid those who have no right to
succeed the testator would succeed him and be benefited with the probate of same. (Mendoza vs. Pilapil, 40 Off. Gaz.,
1855). However, formal imperfections may be brushed aside when authenticity of the instrument is duly proved. (Rodriguez
vs Yap, 40 Off. Gaz. 1st Supp. No. 3 p. 194.)
Authenticity and due execution is the dominant requirements to be fulfilled when such will is submitted to the courts for
allowance. For that purpose the testimony of one of the subscribing witnesses would be sufficient if there is no opposition
(Sec. 5, Rule 77). If there is, the three must testify, if available. (Cabang vs. Delfinado, 34 Phil., 291; Tolentino vs.
Francisco, 57 Phil., 742). From the testimony of such witnesses (and of other additional witnesses) the court may form its
opinion as to the genuineness and authenticity of the testament, and the circumstances its due execution.
Now, in the matter of holographic wills, no such guaranties of truth and veracity are demanded, since as stated, they need no
witnesses; provided however, that they are "entirely written, dated, and signed by the hand of the testator himself." The law,
it is reasonable to suppose, regards the document itself as material proof of authenticity, and as its own safeguard, since it
could at any time, be demonstrated to be or not to be in the hands of the testator himself. "In the probate of a
holographic will" says the New Civil Code, "it shall be necessary that at least one witness who knows the handwriting and
signature of the testator explicitly declare that the will and the signature are in the handwriting of the testator. If the will is
contested, at least three such witnesses shall be required. In the absence of any such witnesses, (familiar with decedent's
handwriting) and if the court deem it necessary, expert testimony may be resorted to."
The witnesses so presented do not need to have seen the execution of the holographic will. They may be mistaken in their
opinion of the handwriting, or they may deliberately lie in affirming it is in the testator's hand. However, the oppositor may
present other witnesses who also know the testator's handwriting, or some expert witnesses, who after comparing the will
with other writings or letters of the deceased, have come to the conclusion that such will has not been written by the hand of
the deceased. (Sec. 50, Rule 123). And the court, in view of such contradictory testimony may use its own visual sense, and
decide in the face of the document, whether the will submitted to it has indeed been written by the testator.
Obviously, when the will itself is not submitted, these means of opposition, and of assessing the evidence are not available.
And then the only guaranty of authenticity
3
the testator's handwriting has disappeared.
Therefore, the question presents itself, may a holographic will be probated upon the testimony of witnesses who have
allegedly seen it and who declare that it was in the handwriting of the testator? How can the oppositor prove that such
document was not in the testator's handwriting? His witnesses who know testator's handwriting have not examined it. His
experts can not testify, because there is no way to compare the alleged testament with other documents admittedly, or
proven to be, in the testator's hand. The oppositor will, therefore, be caught between the upper millstone of his lack of
knowledge of the will or the form thereof, and the nether millstone of his inability to prove its falsity. Again the proponent's
witnesses may be honest and truthful; but they may have been shown a faked document, and having no interest to check the
authenticity thereof have taken no pains to examine and compare. Or they may be perjurers boldly testifying, in the
knowledge that none could convict them of perjury, because no one could prove that they have not "been shown" a
document which they believed was in the handwriting of the deceased. Of course, the competency of such perjured witnesses
to testify as to the handwriting could be tested by exhibiting to them other writings sufficiently similar to those written by
the deceased; but what witness or lawyer would not foresee such a move and prepare for it? His knowledge of the
handwriting established, the witness (or witnesses) could simply stick to his statement: he has seen and read a document
which he believed was in the deceased's handwriting. And the court and the oppositor would practically be at the mercy of
such witness (or witnesses) not only as to the execution, but also as to the contents of the will. Does the law permit such a
situation?
The Rules of Court, (Rule 77) approved in 1940 allow proof (and probate) of a lost or destroyed will by secondary
evidence the testimony of witnesses, in lieu of the original document. Yet such Rules could not have contemplated
holographic wills which could not then be validly made here. (See also Sec. 46, Rule 123; Art. 830-New Civil Code.)
Could Rule 77 be extended, by analogy, to holographic wills?
Spanish commentators agree that one of the greatest objections to the holographic will is that it may be lost or stolen
4
an
implied admission that such loss or theft renders it useless..
This must be so, because the Civil Code requires it to be protocoled and presented to the judge, (Art. 689) who shall
subscribe it and require its identity to be established by the three witnesses who depose that they have no reasonable doubt
that the will was written by the testator (Art. 691). And if the judge considers that the identity of the will has been proven he
shall order that it be filed (Art. 693). All these, imply presentation of the will itself. Art. 692 bears the same implication, to a
greater degree. It requires that the surviving spouse and the legitimate ascendants and descendants be summoned so that they
may make "any statement they may desire to submit with respect to the authenticity of the will." As it is universally
admitted that the holographic will is usually done by the testator and by himself alone, to prevent others from knowing
either its execution or its contents, the above article 692 could not have the idea of simply permitting such relatives to state
whether they know of the will, but whether in the face of the document itself they think the testator wrote it. Obviously, this
they can't do unless the will itself is presented to the Court and to them.
Undoubtedly, the intention of the law is to give the near relatives the choice of either complying with the will if they think it
authentic, or to oppose it, if they think it spurious.
5
Such purpose is frustrated when the document is not presented for their
examination. If it be argued that such choice is not essential, because anyway the relatives may oppose, the answer is that
their opposition will be at a distinct disadvantage, and they have the right and privilege to comply with the will, if genuine,
a right which they should not be denied by withholding inspection thereof from them.
We find confirmation of these ideas--about exhibition of the document itself--in the decision of the Supreme Court of Spain
of June 5, 1925, which denied protocolization or probate to a document containing testamentary dispositions in the
handwriting of the deceased, but apparently mutilated, the signature and some words having been torn from it. Even in the
face of allegations and testimonial evidence (which was controverted), ascribing the mutilation to the opponents of the will.
The aforesaid tribunal declared that, in accordance with the provision of the Civil Code (Spanish) the will itself, whole and
unmutilated, must be presented; otherwise, it shall produce no effect.
Considerando que sentado lo anterior, y estableciendose en el parrafo segundo del articulo 688 del Codigo
civil, que para que sea valido el testamento olografo debera estar escrito todo el y firmado por testador, con
expression del ao, mes y dia en que se otorque, resulta evidente que para la validez y eficacia de esos
testamentos, no basta la demostracion mas o menos cumplida de que cuando se otorgaron se Ilenaron todos
esos requisitos, sino que de la expresada redaccion el precepto legal, y por el tiempo en que el verbo se
emplea, se desprende la necesidad de que el documento se encuentre en dichas condiciones en el momento
de ser presentado a la Autoridad competente, para au adveracion y protocolizacion; y como consecuencia
ineludible de ello, forzoso es affirmar que el de autos carece de validez y aficacia, por no estarfirmado por el
testador, cualquiera que sea la causa de la falta de firma, y sin perjuicio de las acciones que puedan ejercitar
los perjudicados, bien para pedir indemnizacion por el perjuicio a la persona culpable, si la hubiere, o su
castigo en via criminal si procediere, por constituir dicha omision un defecto insubsanable . . . .
This holding aligns with the ideas on holographic wills in the Fuero Juzgo, admittedly the basis of the Spanish Civil Code
provisions on the matter.
6

PRECEDENTES LEGALES--Fuero Juzgo, libro segundo, titulo V, ley 15--E depues que los herederos e sus
fijos ovieren esta manda, fasta ... annos muestrenla al obispo de la tierra, o al juez fasta VI meses y el obispo
o el juez tomen otros tales tres escritos, que fuesen fechos por su mano daquel que fizo la manda; e por
aquellos escriptos, si semjara la letra de la manda, sea confirmada la manda. E depues que todo esto fuere
connoscido, el obispo o el juez, o otras testimonios confirmen el escripto de la manda otra vez, y en esta
manera vala la manda. (Art. 689, Scaevola--Codigo Civil.)
(According to the Fuero above, the will itself must be compared with specimens of the testators handwriting.)
All of which can only mean: the courts will not distribute the property of the deceased in accordance with his holographic
will, unless they are shown his handwriting and signature.
7

Parenthetically, it may be added that even the French Civil Law considers the loss of the holographic will to be fatal.
(Planiol y Ripert, Derecho Civil Frances, traduccion por Diaz Cruz, 1946, Tomo V, page 555).
Taking all the above circumstances together, we reach the conclusion that the execution and the contents of a lost or
destroyed holographic will may not be proved by the bare testimony of witnesses who have seen and/or read such will.
8

Under the provisions of Art. 838 of the New Civil Code, we are empowered to adopt this opinion as a Rule of Court for the
allowance of such holographic wills. We hesitate, however, to make this Rule decisive of this controversy, simultaneously
with its promulgation. Anyway, decision of the appeal may rest on the sufficiency, rather the insufficiency, of the evidence
presented by petitioner Fausto E. Gan.
At this point, before proceeding further, it might be convenient to explain why, unlike holographic wills, ordinary wills may
be proved by testimonial evidence when lost or destroyed. The difference lies in the nature of the wills. In the first, the only
guarantee of authenticity is the handwriting itself; in the second, the testimony of the subscribing or instrumental witnesses
(and of the notary, now). The loss of the holographic will entails the loss of the only medium of proof; if the ordinary will is
lost, the subscribing witnesses are available to authenticate.
In the case of ordinary wills, it is quite hard to convince three witnesses (four with the notary) deliberately to lie. And then
their lies could be checked and exposed, their whereabouts and acts on the particular day, the likelihood that they would be
called by the testator, their intimacy with the testator, etc. And if they were intimates or trusted friends of the testator they
are not likely to end themselves to any fraudulent scheme to distort his wishes. Last but not least, they can not receive
anything on account of the will.
Whereas in the case of holographic wills, if oral testimony were admissible
9
only one man could engineer the fraud this
way: after making a clever or passable imitation of the handwriting and signature of the deceased, he may contrive to let
three honest and credible witnesses see and read the forgery; and the latter, having no interest, could easily fall for it, and in
court they would in all good faith affirm its genuineness and authenticity. The will having been lost the forger may have
purposely destroyed it in an "accident" the oppositors have no way to expose the trick and the error, because the
document itself is not at hand. And considering that the holographic will may consist of two or three pages, and only one of
them need be signed, the substitution of the unsigned pages, which may be the most important ones, may go undetected.
If testimonial evidence of holographic wills be permitted, one more objectionable feature feasibility of forgery would
be added to the several objections to this kind of wills listed by Castan, Sanchez Roman and Valverde and other well-known
Spanish Commentators and teachers of Civil Law.
10

One more fundamental difference: in the case of a lost will, the three subscribing witnesses would be testifying to a fact
which they saw, namely the act of the testator of subscribing the will; whereas in the case of a lost holographic will, the
witnesses would testify as to their opinion of the handwriting which they allegedly saw, an opinion which can not be tested
in court, nor directly contradicted by the oppositors, because the handwriting itself is not at hand.
Turning now to the evidence presented by the petitioner, we find ourselves sharing the trial judge's disbelief. In addition to
the dubious circumstances described in the appealed decision, we find it hard to believe that the deceased should show her
will precisely to relatives who had received nothing from it: Socorro Olarte and Primitivo Reyes. These could pester her into
amending her will to give them a share, or threaten to reveal its execution to her husband Ildefonso Yap. And this leads to
another point: if she wanted so much to conceal the will from her husband, why did she not entrust it to her beneficiaries?
Opportunity to do so was not lacking: for instance, her husband's trip to Davao, a few days after the alleged execution of the
will.
In fine, even if oral testimony were admissible to establish and probate a lost holographic will, we think the evidence
submitted by herein petitioner is so tainted with improbabilities and inconsistencies that it fails to measure up to that "clear
and distinct" proof required by Rule 77, sec. 6.
11

Wherefore, the rejection of the alleged will must be sustained.
Judgment affirmed, with costs against petitioner.
Paras, C. J., Padilla, Montemayor, Reyes, A., Bautista Angelo, Concepcion, Reyes, J. B. L., Endencia and Felix, JJ., concur.

Footnotes
1
Now a member of the Court of Appeals.
2
The contents of the alleged will are for the purposes of this decision, immaterial.
3
"Una forma de testamento" (holographic will) "en la que toda la garantia consiste en la letra del testador."
(Scaevola, Codigo Civil, Tomo 12, p. 348.)
4
V. Sanchez Roam, Derecho Civil (2nd Ed.) (1910) Vol. 6 pp. 343, 350; Castan, Derecho Civil Espaol
(1944) Tomo 4 p. 337; Valverde, Derecho Civil (1939) Vol. 5, p. 77.
5
V. Sanchez Roman Op. Cit. Vol. 6, p. 357.
6
Manresa, Codigo Civil, 1932, Vol. 5, p. 481.
7
We have no doubt that this concept and these doctrines concerning the Spanish Civil Code apply to our
New Civil Code, since the Commission in its Report (p. 52) merely "revived" holographic wills, i.e., those
known to the Spanish Civil Law, before Act 190.
8
Perhaps it may be proved by a photographic or photostatic copy. Evena mimeographed or carbon copy; or
by other similar means, if any, whereby the authenticity of the handwriting of the deceased may be exhibited
and tested before the probate court.
9
We are aware of some American cases that admitted lost holographic wills, upon verbal testimony. (Sec. 41,
American Law Reports, 2d. pp. 413, 414.) But the point here raised was not discussed. Anyway it is safer to
follow, in this matter, the theories of the Spanish law.
10
Justice Jose B. L. Reyes, professor of Civil Law, makes this Comment:
"Holographic wills are peculiarly dangerous kin case of persons who have written very title. The validity of
these wills depends, exclusively on the authenticity of handwriting, and if writing standards are not
procurable, or not contemporaneous, the courts are left to the mercy of the mendacity of witnesses. It is
questionable whether the recreation of the holographic testament will prove wise." (Lawyer's Journal, Nov.
30, 1950, pp. 556-557.)
11
Intestate of Suntay, 50 Off. Gaz., 5321.

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Republic of the Philippines
SUPREME COURT
Manila
FIRST DIVISION
G.R. No. L-58509 December 7, 1982
IN THE MATTER OF THE PETITION TO APPROVE THE WILL OF RICARDO B. BONILLA deceased,
MARCELA RODELAS, petitioner-appellant,
vs.
AMPARO ARANZA, ET AL., oppositors-appellees, ATTY. LORENZO SUMULONG, intervenor.
Luciano A. Joson for petitioner-appellant.
Cesar Paralejo for oppositor-appellee.

RELOVA, J .:
This case was certified to this Tribunal by the Court of Appeals for final determination pursuant to Section 3, Rule
50 of the Rules of Court.
As found by the Court of Appeals:
... On January 11, 1977, appellant filed a petition with the Court of First Instance of Rizal for
the probate of the holographic will of Ricardo B. Bonilla and the issuance of letters
testamentary in her favor. The petition, docketed as Sp. Proc. No. 8432, was opposed by the
appellees Amparo Aranza Bonilla, Wilferine Bonilla Treyes Expedita Bonilla Frias and
Ephraim Bonilla on the following grounds:
(1) Appellant was estopped from claiming that the deceased left a will by failing to produce
the will within twenty days of the death of the testator as required by Rule 75, section 2 of
the Rules of Court;
(2) The alleged copy of the alleged holographic will did not contain a disposition of property
after death and was not intended to take effect after death, and therefore it was not a will
(3) The alleged hollographic will itself,and not an alleged copy thereof, must be produced,
otherwise it would produce no effect, as held in Gam v. Yap, 104 Phil. 509; and
(4 ) The deceased did not leave any will, holographic or otherwise, executed and attested as
required by law.
The appellees likewise moved for the consolidation of the case with another case Sp. Proc.
No, 8275). Their motion was granted by the court in an order dated April 4, 1977.
On November 13, 1978, following the consolidation of the cases, the appellees moved again
to dismiss the petition for the probate of the will. They argued that:
(1) The alleged holographic was not a last will but merely an instruction as to the
management and improvement of the schools and colleges founded by decedent Ricardo B.
Bonilla; and
(2) Lost or destroyed holographic wills cannot be proved by secondary evidence unlike
ordinary wills.
Upon opposition of the appellant, the motion to dismiss was denied by the court in its order
of February 23, 1979.
The appellees then filed a motion for reconsideration on the ground that the order was
contrary to law and settled pronouncements and rulings of the Supreme Court, to which the
appellant in turn filed an opposition. On July 23, 1979, the court set aside its order of
February 23, 1979 and dismissed the petition for the probate of the will of Ricardo B. Bonilla.
The court said:
... It is our considered opinion that once the original copy of the holographic will is lost, a
copy thereof cannot stand in lieu of the original.
In the case of Gam vs. Yap, 104 Phil. 509, 522, the Supreme Court held that 'in the matter of
holographic wills the law, it is reasonable to suppose, regards the document itself as the
material proof of authenticity of said wills.
MOREOVER, this Court notes that the alleged holographic will was executed on January 25,
1962 while Ricardo B. Bonilla died on May 13, 1976. In view of the lapse of more than 14
years from the time of the execution of the will to the death of the decedent, the fact that the
original of the will could not be located shows to our mind that the decedent had discarded
before his death his allegedly missing Holographic Will.
Appellant's motion for reconsideration was denied. Hence, an appeal to the Court of Appeals in which it is
contended that the dismissal of appellant's petition is contrary to law and well-settled jurisprudence.
On July 7, 1980, appellees moved to forward the case to this Court on the ground that the appeal does not
involve question of fact and alleged that the trial court committed the following assigned errors:
I. THE LOWER COURT ERRED IN HOLDING THAT A LOST HOLOGRAPHIC WILL MAY
NOT BE PROVED BY A COPY THEREOF;
II. THE LOWER COURT ERRED IN HOLDING THAT THE DECEDENT HAS DISCARDED
BEFORE HIS DEATH THE MISSING HOLOGRAPHIC WILL;
III. THE LOWER COURT ERRED IN DISMISSING APPELLANT'S WILL.
The only question here is whether a holographic will which was lost or cannot be found can be proved by means
of a photostatic copy. Pursuant to Article 811 of the Civil Code, probate of holographic wills is the allowance of
the will by the court after its due execution has been proved. The probate may be uncontested or not. If
uncontested, at least one Identifying witness is required and, if no witness is available, experts may be resorted
to. If contested, at least three Identifying witnesses are required. However, if the holographic will has been lost or
destroyed and no other copy is available, the will can not be probated because the best and only evidence is the
handwriting of the testator in said will. It is necessary that there be a comparison between sample handwritten
statements of the testator and the handwritten will. But, a photostatic copy or xerox copy of the holographic will
may be allowed because comparison can be made with the standard writings of the testator. In the case of Gam
vs. Yap, 104 PHIL. 509, the Court ruled that "the execution and the contents of a lost or destroyed holographic
will may not be proved by the bare testimony of witnesses who have seen and/or read such will. The will itself
must be presented; otherwise, it shall produce no effect. The law regards the document itself as material proof of
authenticity." But, in Footnote 8 of said decision, it says that "Perhaps it may be proved by a photographic or
photostatic copy. Even a mimeographed or carbon copy; or by other similar means, if any, whereby the
authenticity of the handwriting of the deceased may be exhibited and tested before the probate court," Evidently,
the photostatic or xerox copy of the lost or destroyed holographic will may be admitted because then the
authenticity of the handwriting of the deceased can be determined by the probate court.
WHEREFORE, the order of the lower court dated October 3, 1979, denying appellant's motion for
reconsideration dated August 9, 1979, of the Order dated July 23, 1979, dismissing her petition to approve the
will of the late Ricardo B. Bonilla, is hereby SET ASIDE.
SO ORDERED.
Teehankee, Actg. C.J., Melencio-Herrera, Plana, Vasquez and Gutierrez, Jr., JJ., concur.

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Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-14003 August 5, 1960
FEDERICO AZAOLA, petitioner-appellant,
vs.
CESARIO SINGSON, oppositor-appellee.
F. Lavides and L.B. Alcuaz for appellant.
Vicente J. Cuna and P.S. Singson for appellee.
REYES, J.B.L., J .:
This appeal, taken on points of law from a decision rendered on 15 January 1958 by the Court of First Instance of Quezon
City in its Special Proceedings No. Q-2640, involves the determination of the quantity of evidence required for the probate
of a holographic will.
The established facts are thus summarized in the decision appealed from (Rec. App. pp. 22-24):
"Briefly speaking, the following facts were established by the petitioner; that on September 9, 1957,
Fortunata S. Vda. de Yance died at 13 Luskot, Quezon City, known to be the last residence of said testatrix;
that Francisco Azaola, petitioner herein for probate of the holographic will, submitted the said holographic
will (Exh. C) whereby Maria Milagros Azaola was made the sole heir as against the nephew of deceased
Cesario Singson; that witness Francisco Azaola testified that he saw the holographic will (Exh. C) one month,
more or less, before the death of the testatrix, as the same was handed to him and his wife; that the witness
testified also that he recognized all the signatures appearing in the holographic will (Exh. C) as the
handwriting of the testatrix and to reinforce said statement, witness presented the mortgage (Exh. E), the
special power of the attorney (Exh. F), and the general power of attorney (Exh. F-1), besides the deeds of sale
(Exhs. G and G-1) including an affidavit (Exh. G-2), and that there were further exhibited in court two
residence certificates (Exhs. H and H-1) to show the signatures of the testatrix, for comparison purposes; that
said witness, Azaola, testified that the penmanship appearing in the aforesaid documentary evidence is in the
handwriting of the testatrix as well as the signatures appearing in the aforesaid documentary evidence is in
the handwriting of the testatrix as well as the signatures appearing therein are the signatures of the testatrix;
that said witness, in answer to a question of his counsel admitted that the holographic will was handed to him
by the testatrix. "apparently it must have been written by her" (t.s.n., p. 11). However, on page 16 on the
same transcript of the stenographic notes, when the same witness was asked by counsel if he was familiar
with the penmanship and handwriting of the deceased Fortunata Vda. de Yance, he answered positively in the
affirmative and when he was asked again whether the penmanship referred to in the previous answer as
appearing in the holographic will (Exh. C) was hers (testatrix'), he answered, "I would definitely say it is
hers"; that it was also established in the proceedings that the assessed value of the property of the deceased in
Luskot, Quezon City, is in the amount of P7,000.00.
The opposition to the probate was on the ground that (1) the execution of the will was procured by undue and improper
pressure and influence on the part of the petitioner and his wife, and (2) that the testatrix did not seriously intend the
instrument to be her last will, and that the same was actually written either on the 5th or 6th day of August 1957 and not on
November 20, 1956 as appears on the will.
The probate was denied on the ground that under Article 811 of the Civil Code, the proponent must present three witnesses
who could declare that the will and the signature are in the writing of the testatrix, the probate being contested; and because
the lone witness presented by the proponent "did not prove sufficiently that the body of the will was written in the
handwriting of the testatrix."
The proponent appealed, urging: first, that he was not bound to produce more than one witness because the will's
authenticity was not questioned; and second, that Article 811 does not mandatorily require the production of three witnesses
to identify the handwriting and signature of a holographic will, even if its authenticity should be denied by the adverse party.
Article 811 of the Civil Code of the Philippines is to the following effect:
ART. 811. In the probate of a holographic will, it shall be necessary that at least one witness who knows the
handwriting and signature of the testator explicitly declare that the will and the signature are in the
handwriting of the testator. If the will is contested, at least three of such witnesses shall be required.
In the absence of any competent witnesses referred to in the preceding paragraph, and if the court deems it
necessary, expert testimony may be resorted to. (691a).
We agree with the appellant that since the authenticity of the will was not contested, he was not required to produce more
than one witness; but even if the genuineness of the holographic will were contested, we are of the opinion that Article 811
of our present Civil Code can not be interpreted as to require the compulsory presentation of three witnesses to identify the
handwriting of the testator, under penalty of having the probate denied. Since no witness may have been present at the
execution of a holographic will, none being required by law (Art. 810, new Civil Code), it becomes obvious that the
existence of witness possessing the requisite qualifications is a matter beyond the control of the proponent. For it is not
merely a question of finding and producing any three witnesses; they must be witnesses "who know the handwriting and
signature of the testator" and who can declare (truthfully, of course, even if the law does not so express) "that the will and
the signature are in the handwriting of the testator". There may be no available witness of the testator's hand; or even if so
familiarized, the witnesses may be unwilling to give a positive opinion. Compliance with the rule of paragraph 1 of Article
811 may thus become an impossibility. That is evidently the reason why the second paragraph of Article 811 prescribes that

in the absence of any competent witness referred to in the preceding paragraph, and if the court deems it
necessary, expert testimony may be resorted to.
As can be seen, the law foresees the possibility that no qualified witness may be found (or what amounts to the same thing,
that no competent witness may be willing to testify to the authenticity of the will), and provides for resort to expert evidence
to supply the deficiency.
It may be true that the rule of this article (requiring that three witnesses be presented if the will is contested and only one if
no contest is had) was derived from the rule established for ordinary testaments (cf. Cabang vs. Delfinado, 45 Phil., 291;
Tolentino vs. Francisco, 57 Phil., 742). But it can not be ignored that the requirement can be considered mandatory only in
the case of ordinary testaments, precisely because the presence of at least three witnesses at the execution of ordinary wills
is made by law essential to their validity (Art. 805). Where the will is holographic, no witness need be present (Art. 10), and
the rule requiring production of three witnesses must be deemed merely permissive if absurd results are to be avoided.
Again, under Article 811, the resort to expert evidence is conditioned by the words "if the Court deem it necessary", which
reveal that what the law deems essential is that the Court should be convinced of the will's authenticity. Where the
prescribed number of witnesses is produced and the court is convinced by their testimony that the ill is genuine, it may
consider it unnecessary to call for expert evidence. On the other hand, if no competent witness is available, or none of those
produced is convincing, the Court may still, and in fact it should, resort to handwriting experts. The duty of the Court, in
fine, is to exhaust all available lines of inquiry, for the state is as much interested as the proponent that the true intention of
the testator be carried into effect.
Commenting on analogous provisions of Article 691 of the Spanish Civil Code of 1889, the noted Commentator, Mucuis
Scaevola (Vol. 12, 2nd Ed., p.421), sagely remarks:
La manera como esta concebida la redaccion del ultimo apartado de dicho precepto induce la conclusion de
que siempre o por lo menos, en la mayor parte de los casos, el Juez debe acudir al criterio pericial para que le
ilustre acerca de la autenticidad del testamento olografo, aunque ya esten insertas en los autos del expediente
las declaraciones testificales. La prudencia con que el Juez debe de proceder en resoluciones de
transcendencia asi lo exige, y la indole delicada y peligrosa del testamento olografo lo hace necesario para
mayor garantia de todos los interes comprometidos en aquel.
En efecto, el cotejo pericial de letras puede ser una confirmacion facultativa del dicho profano de los testigos
y un modo de desvanecer las ultimas dudas que pudieran ocurrir al Juez acerca de la autenticidad que trata de
averigaur y declarar. Para eso se ha escrito la frase del citado ultimo apartado, (siempre que el Juez lo estime
conveniente), haya habido o no testigos y dudaran o no estos respecto de los extremos por que son
preguntados.
El arbitrio judicial en este caso debe formarse con independencia de los sucesos y de su significacion, para
responder debidamente de las resoluciones que haya de dictar.
And because the law leaves it to the trial court if experts are still needed, no unfavourable inference can be drawn from a
party's failure to offer expert evidence, until and unless the court expresses dissatisfaction with the testimony of the lay
witnesses.
Our conclusion is that the rule of the first paragraph of Article 811 of the Civil Code is merely directory and is not
mandatory.
Considering, however, that this is the first occasion in which this Court has been called upon to construe the import of said
article, the interest of justice would be better served, in our opinion, by giving the parties ample opportunity to adduce
additional evidence, including expert witnesses, should the Court deem them necessary.
In view of the foregoing, the decision appealed from is set aside, and the records ordered remanded to the Court of origin,
with instructions to hold a new trial in conformity with this opinion. But evidence already on record shall not be retaken. No
costs.
Bengzon, Padilla, Bautista Angelo, Labrador, Concepcion, Barrera and Gutierrez David, JJ., concur.

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Republic of the Philippines
SUPREME COURT
Manila
FIRST DIVISION
G.R. No. 123486 August 12, 1999
EUGENIA RAMONAL CODOY, and MANUEL RAMONAL, petitioners,
vs.
EVANGELINE R. CALUGAY, JOSEPHINE SALCEDO, and UEFEMIA PATIGAS, respondents.
PARDO, J .:
Before us is a petition for review on certiorari of the decision of the Court of Appeals
1
and its resolution denying
reconsideration, ruling:
Upon the unrebutted testimony of appellant Evangeline Calugay and witness Matilde Ramonal Binanay, the
authenticity of testators holographic will has been established and the handwriting and signature therein
(exhibit S) are hers, enough to probate said will. Reversal of the judgment appealed from and the probate of
the holographic will in question be called for. The rule is that after plaintiff has completed presentation of his
evidence and the defendant files a motion for judgment on demurrer to evidence on the ground that upon the
facts and the law plaintiff has shown no right to relief, if the motion is granted and the order to dismissal is
reversed on appeal, the movant loses his right to present evidence in his behalf (Sec, 1 Rule 35 Revised Rules
of Court). Judgment may, therefore, be rendered for appellant in the instant case.
Wherefore, the order appealed from is REVERSED and judgment rendered allowing the probate of the
holographic will of the testator Matilde Seo Vda. de Ramonal.
2

The facts are as follows:
On April 6, 1990, Evangeline Calugay, Josephine Salcedo and Eufemia Patigas, devisees and legatees of the holographic
will of the deceased Matilde Seo Vda. de Ramonal, filed with the Regional Trial Court, Misamis Oriental, Branch 18, a
petition
3
for probate of the holographic will of the deceased, who died on January 16, 1990.
In the petition, respondents claimed that the deceased Matilde Seo Vda. de Ramonal, was of sound and disposing mind
when she executed the will on August 30, 1978, that there was no fraud, undue influence, and duress employed in the person
of the testator, and will was written voluntarily.
The assessed value of the decedent's property, including all real and personal property was about P400,000.00, at the time of
her death.
4

On June 28, 1990, Eugenia Ramonal Codoy and Manuel Ramonal filed an opposition
5
to the petition for probate, alleging
that the holographic will was a forgery and that the same is even illegible. This gives an impression that a "third hand" of an
interested party other than the "true hand" of Matilde Seo Vda. de Ramonal executed the holographic will.
Petitioners argued that the repeated dates incorporated or appearing on will after every disposition is out of the ordinary. If
the deceased was the one who executed the will, and was not forced, the dates and the signature should appear at the bottom
after the dispositions, as regularly done and not after every disposition. And assuming that the holographic will is in the
handwriting of the deceased, it was procured by undue and improper pressure and influence on the part of the beneficiaries,
or through fraud and trickery.1wphi1.nt
Respondents presented six (6) witnesses and various documentary evidence. Petitioners instead of presenting their evidence,
filed a demurrer
6
to evidence, claiming that respondents failed to establish sufficient factual and legal basis for the probate
of the holographic will of the deceased Matilde Seo Vda. de Ramonal.
On November 26, 1990, the lower Court issued an order, the dispositive portion of which reads:
WHEREFORE, in view of the foregoing consideration, the Demurrer to Evidence having being well taken,
same is granted, and the petition for probate of the document (Exhibit "S") on the purported Holographic Will
of the late Matilde Seo Vda. de Ramonal, is denied for insufficiency of evidence and lack of merits.
7

On December 12, 1990, respondents filed a notice of appeal,
8
and in support of their appeal, the respondents once again
reiterated the testimony of the following witnesses, namely: (1) Augusto Neri; (2) Generosa Senon; (3) Matilde Ramonal
Binanay; (4) Teresita Vedad; (5) Fiscal Rodolfo Waga; and (6) Evangeline Calugay.
To have a clear understanding of the testimonies of the witnesses, we recite an account of their testimonies.
Augusto Neri, Clerk of Court, Court of First Instance of Misamis Oriental, where the special proceedings for the probate of
the holographic will of the deceased was filed. He produced and identified the records of the case. The documents presented
bear the signature of the deceased, Matilde Seo Vda. de Ramonal, for the purpose of laying the basis for comparison of the
handwriting of the testatrix, with the writing treated or admitted as genuine by the party against whom the evidence is
offered.
Generosa Senon, election registrar of Cagayan de Oro, was presented to produced and identify the voter's affidavit of the
decedent. However, the voters' affidavit was not produced for the same was already destroyed and no longer available.
Matilde Ramonal Binanay, testified that the deceased Matilde Seo Vda. de Ramonal was her aunt, and that after the death
of Matilde's husband, the latter lived with her in her parent's house for eleven (11) years from 1958 to 1969. During those
eleven (11) years of close association the deceased, she acquired familiarity with her signature and handwriting as she used
to accompany her (deceased Matilde Seo Vda. de Ramonal) in collecting rentals from her various tenants of commercial
buildings, and deceased always issued receipts. In addition to this, she (witness Matilde Binanay) assisted the deceased in
posting the records of the accounts, and carried personal letters of the deceased to her creditors.
Matilde Ramonal Binanay further testified that at the time of the death of Matilde Vda. de Ramonal, she left a holographic
will dated August 30, 1978, which was personally and entirely written, dated and signed, by the deceased and that all the
dispositions therein, the dates, and the signatures in said will, were that of the deceased.
Fiscal Rodolfo Waga testified that before he was appointed City Fiscal of Cagayan de Oro, he was a practicing lawyer, and
handled all the pleadings and documents signed by the deceased in connection with the proceedings of her late husband, as a
result of which he is familiar with the handwriting of the latter. He testified that the signature appearing in the holographic
will was similar to that of the deceased, Matilde Seo Vda. de Ramonal, but he can not be sure.
The fifth witness presented was Mrs. Teresita Vedad, an employee of the Department of Environment and Natural
Resources, Region 10. She testified that she processed the application of the deceased for pasture permit and was familiar
with the signature of the deceased, since the signed documents in her presence, when the latter was applying for pasture
permit.
Finally, Evangeline Calugay, one of the respondents, testified that she had lived with the deceased since birth, and was in
fact adopted by the latter. That after a long period of time she became familiar with the signature of the deceased. She
testified that the signature appearing in the holographic will is the true and genuine signature of Matilde Seo Vda. de
Ramonal.
The holographic will which was written in Visayan, is translated in English as follows:
Instruction
August 30, 1978
1. My share at Cogon, Raminal Street, for Evangeline Calugay.
(Sgd) Matilde Vda de Ramonal
August 30, 1978
2. Josefina Salcedo must be given 1,500 square meters at Pinikan Street.
(Sgd) Matilde Vda de Ramonal
August 30, 1978
3. My jewelry's shall be divided among:
1. Eufemia Patigas
2. Josefina Salcedo
3. Evangeline Calugay
(Sgd) Matilde Vda de Ramonal
August 30, 1978
4. I bequeath my one (1) hectare land at Mandumol, Indahag to Evangeline R. Calugay
(Sgd) Matilde Vda de Ramonal
August 30, 1978
5. Give the 2,500 Square Meters at Sta. Cruz Ramonal Village in favor of Evangeline R. Calugay, Helen
must continue with the Sta. Cruz, once I am no longer around.
(Sgd) Matilde Vda de Ramonal
August 30, 1978
6. Bury me where my husband Justo is ever buried.
(Sgd) Matilde Vda de Ramonal
August 30, 1978
Gene and Manuel:
Follow my instruction in order that I will rest peacefully.
Mama
Matilde Vda de Ramonal
On October 9, 1995, the Court of Appeals, rendered decision
9
ruling that the appeal was meritorious. Citing the decision in
the case of Azaola vs. Singson, 109 Phil. 102, penned by Mr. Justice J. B. L. Reyes, a recognized authority in civil law, the
Court of Appeals held:
. . . even if the genuineness of the holographic will were contested, we are of the opinion that Article 811 of
our present civil code can not be interpreted as to require the compulsory presentation of three witnesses to
identify the handwriting of the testator, under penalty of having the probate denied. Since no witness may
have been present at the execution of the holographic will, none being required by law (art. 810, new civil
code), it becomes obvious that the existence of witnesses possessing the requisite qualifications is a matter
beyond the control of the proponent. For it is not merely a question of finding and producing any three
witnesses; they must be witnesses "who know the handwriting and signature of the testator" and who can
declare (truthfully, of course, even if the law does not express) "that the will and the signature are in the
handwriting of the testator." There may be no available witness acquainted with the testator's hand; or even if
so familiarized, the witness maybe unwilling to give a positive opinion. Compliance with the rule of
paragraph 1 of article 811 may thus become an impossibility. That is evidently the reason why the second
paragraph of article 811 prescribes that
in the absence of any competent witness referred to in the preceding paragraph, and if the court deems it
necessary, expert testimony may be resorted to.
As can be see, the law foresees, the possibility that no qualified witness ma be found (or what amounts to the
same thing, that no competent witness may be willing to testify to the authenticity of the will), and provides
for resort to expert evidence to supply the deficiency.
It may be true that the rule of this article (requiring that three witnesses be presented if the will is contested
and only one if no contest is had) was derived from the rule established for ordinary testaments (CF Cabang
vs. Delfianado, 45 PHIL 291; Tolentino v. Francisco, 57 PHIL 742). But it can not be ignored that the
requirement can be considered mandatory only in case of ordinary testaments, precisely because the presence
of at least three witnesses at the execution of ordinary wills is made by law essential to their validity (Art.
805). Where the will is holographic, no witness need be present (art. 10), and the rule requiring production of
three witnesses must be deemed merely permissive if absurd results are to be avoided.
Again, under Art. 811, the resort to expert evidence is conditioned by the words "if the court deem it
necessary", which reveal that what the law deems essential is that the court should be convinced of the will's
authenticity. Where the prescribed number of witnesses is produced and the court is convinced by their
testimony that the will is genuine, it may consider it unnecessary to call for expert evidence. On the other
hand, if no competent witness is available, or none of those produced is convincing, the court may still, and
in fact it should resort to handwriting experts. The duty of the court, in fine, is to exhaust all available lines of
inquiry, for the state is as much interested as the proponent that the true intention of the testator be carried
into effect.
Paraphrasing Azaola vs. Singson, even if the genuineness of the holographic will were contested, Article 811
of the civil code cannot be interpreted as to require the compulsory presentation of three witnesses to identify
the handwriting of the testator, under penalty of the having the probate denied. No witness need be present in
the execution of the holographic will. And the rule requiring the production of three witnesses is merely
permissive. What the law deems essential is that the court is convinced of the authenticity of the will. Its duty
is to exhaust all available lines of inquiry, for the state is as much interested in the proponent that the true
intention of the testator be carried into effect. And because the law leaves it to the trial court to decide if
experts are still needed, no unfavorable inference can be drawn from a party's failure to offer expert evidence,
until and unless the court expresses dissatisfaction with the testimony of the lay witnesses.
10

According to the Court of Appeals, Evangeline Calugay, Matilde Ramonal Binanay and other witnesses definitely and in no
uncertain terms testified that the handwriting and signature in the holographic will were those of the testator herself.
Thus, upon the unrebutted testimony of appellant Evangeline Calugay and witness Matilde Ramonal Binanay, the Court of
Appeals sustained the authenticity of the holographic will and the handwriting and signature therein, and allowed the will to
probate.
Hence, this petition.
The petitioners raise the following issues:
(1) Whether or not the ruling of the case of Azaola vs. Singson, 109 Phil. 102, relied upon by the respondent
Court of Appeals, was applicable to the case.
(2) Whether or not the Court of Appeals erred in holding that private respondents had been able to present
credible evidence to that the date, text, and signature on the holographic will written entirely in the hand of
the testatrix.
(3) Whether or not the Court of Appeals erred in not analyzing the signatures in the holographic will of
Matilde Seo Vda. de Ramonal.
In this petition, the petitioners ask whether the provisions of Article 811 of the Civil Code are permissive or mandatory. The
article provides, as a requirement for the probate of a contested holographic will, that at least three witnesses explicitly
declare that the signature in the will is the genuine signature of the testator.1wphi1.nt
We are convinced, based on the language used, that Article 811 of the Civil Code is mandatory. The word "shall" connotes a
mandatory order. We have ruled that "shall" in a statute commonly denotes an imperative obligation and is inconsistent with
the idea of discretion and that the presumption is that the word "shall," when used in a statute is mandatory.
11

Laws are enacted to achieve a goal intended and to guide against an evil or mischief that aims to prevent. In the case at bar,
the goal to achieve is to give effect to the wishes of the deceased and the evil to be prevented is the possibility that
unscrupulous individuals who for their benefit will employ means to defeat the wishes of the testator.
So, we believe that the paramount consideration in the present petition is to determine the true intent of the deceased. An
exhaustive and objective consideration of the evidence is imperative to establish the true intent of the testator.
It will be noted that not all the witnesses presented by the respondents testified explicitly that they were familiar with the
handwriting of testator. In the case of Augusto Neri, clerk of court, Court of First Instance, Misamis Oriental, he merely
identified the record of Special Proceedings No. 427 before said court. He was not presented to declare explicitly that the
signature appearing in the holographic was that of the deceased.
Generosa E. Senon, the election registrar of Cagayan de Oro City, was presented to identify the signature of the deceased in
the voter's affidavit, which was not even produced as it was no longer available.
Matilde Ramonal Binanay, on the other hand, testified that:
Q. And you said for eleven (11) years Matilde Vda de Ramonal resided with your parents at Pinikitan,
Cagayan de Oro City. Would you tell the court what was your occupation or how did Matilde Vda de
Ramonal keep herself busy that time?
A. Collecting rentals.
Q. From where?
A. From the land rentals and commercial buildings at Pabayo-Gomez streets.
12

x x x x x x x x x
Q. Who sometime accompany her?
A. I sometimes accompany her.
Q. In collecting rentals does she issue receipts?
A. Yes, sir.
13

x x x x x x x x x
Q. Showing to you the receipt dated 23 October 1979, is this the one you are referring to as one of the
receipts which she issued to them?
A. Yes, sir.
Q. Now there is that signature of Matilde vda. De Ramonal, whose signature is that Mrs. Binanay?
A. Matilde vda. De Ramonal.
Q. Why do you say that is the signature of Matilde Vda. De Ramonal?
A. I am familiar with her signature.
Q. Now, you tell the court Mrs. Binanay, whether you know Matilde vda de Ramonal kept records of the
accounts of her tenants?
A. Yes, sir.
Q. Why do you say so?
A. Because we sometimes post a record of accounts in behalf of Matilde Vda. De Ramonal.
Q. How is this record of accounts made? How is this reflected?
A. In handwritten.
14

x x x x x x x x x
Q. In addition to collection of rentals, posting records of accounts of tenants and deed of sale which you said
what else did you do to acquire familiarity of the signature of Matilde Vda De Ramonal?
A. Posting records.
Q. Aside from that?
A. Carrying letters.
Q. Letters of whom?
A. Matilde.
Q. To whom?
A. To her creditors.
15

x x x x x x x x x
Q. You testified that at time of her death she left a will. I am showing to you a document with its title
"tugon" is this the document you are referring to?
A. Yes, sir.
Q. Showing to you this exhibit "S", there is that handwritten "tugon", whose handwriting is this?
A. My Aunt.
Q. Why do you say this is the handwriting of your aunt?
A. Because I am familiar with her signature.
16

What Ms. Binanay saw were pre-prepared receipts and letters of the deceased, which she either mailed or gave to her
tenants. She did not declare that she saw the deceased sign a document or write a note.
Further, during the cross-examination, the counsel for petitioners elicited the fact that the will was not found in the personal
belongings of the deceased but was in the possession of Ms. Binanay. She testified that:
Q. Mrs. Binanay, when you were asked by counsel for the petitioners if the late Matilde Seno vda de
Ramonal left a will you said, yes?
A. Yes, sir.
Q. Who was in possession of that will?
A. I.
Q. Since when did you have the possession of the will?
A. It was in my mother's possession.
Q. So, it was not in your possession?
A. Sorry, yes.
Q. And when did you come into possession since as you said this was originally in the possession of your
mother?
A. 1985.
17

x x x x x x x x x
Q. Now, Mrs. Binanay was there any particular reason why your mother left that will to you and therefore
you have that in your possession?
A. It was not given to me by my mother, I took that in the aparador when she died.
Q. After taking that document you kept it with you?
A. I presented it to the fiscal.
Q. For what purpose?
A. Just to seek advice.
Q. Advice of what?
A. About the will.
18

In her testimony it was also evident that Ms. Binanay kept the fact about the will from petitioners, the legally adopted
children of the deceased. Such actions put in issue her motive of keeping the will a secret to petitioners and revealing it only
after the death of Matilde Seo Vda. de Ramonal.
In the testimony of Ms. Binanay, the following were established:
Q. Now, in 1978 Matilde Seno Vda de Ramonal was not yet a sickly person is that correct?
A. Yes, sir.
Q. She was up and about and was still uprightly and she could walk agilely and she could go to her building
to collect rentals, is that correct?
A. Yes, sir.
19

x x x x x x x x x
Q. Now, let us go to the third signature of Matilde Ramonal. Do you know that there are retracings in the
word Vda.?
A. Yes, a little. The letter L is continuous.
Q. And also in Matilde the letter L is continued to letter D?
A. Yes, sir.
Q. Again the third signature of Matilde Vda de Ramonal the letter L in Matilde is continued towards letter
D.
A. Yes, sir.
Q. And there is a retracing in the word Vda.?
A. Yes, sir.
20

x x x x x x x x x
Q. Now, that was 1979, remember one year after the alleged holographic will. Now, you identified a
document marked as Exhibit R. This is dated January 8, 1978 which is only about eight months from August
30, 1978. Do you notice that the signature Matilde Vda de Ramonal is beautifully written and legible?
A. Yes, sir the handwriting shows that she was very exhausted.
Q. You just say that she was very exhausted while that in 1978 she was healthy was not sickly and she was
agile. Now, you said she was exhausted?
A. In writing.
Q. How did you know that she was exhausted when you were not present and you just tried to explain
yourself out because of the apparent inconsistencies?
A. That was I think. (sic).
Q. Now, you already observed this signature dated 1978, the same year as the alleged holographic will. In
exhibit I, you will notice that there is no retracing; there is no hesitancy and the signature was written on a
fluid movement. . . . And in fact, the name Eufemia R. Patigas here refers to one of the petitioners?
A. Yes, sir.
Q. You will also notice Mrs. Binanay that it is not only with the questioned signature appearing in the
alleged holographic will marked as Exhibit X but in the handwriting themselves, here you will notice the
hesitancy and tremors, do you notice that?
A. Yes, sir.
21

Evangeline Calugay declared that the holographic will was written, dated and signed in the handwriting of the testator. She
testified that:
Q. You testified that you stayed with the house of the spouses Matilde and Justo Ramonal for the period of
22 years. Could you tell the court the services if any which you rendered to Matilde Ramonal?
A. During my stay I used to go with her to the church, to market and then to her transactions.
Q. What else? What services that you rendered?
A. After my college days I assisted her in going to the bank, paying taxes and to her lawyer.
Q. What was your purpose of going to her lawyer?
A. I used to be her personal driver.
Q. In the course of your stay for 22 years did you acquire familiarity of the handwriting of Matilde Vda de
Ramonal?
A. Yes, sir.
Q. How come that you acquired familiarity?
A. Because I lived with her since birth.
22

x x x x x x x x x
Q. Now, I am showing to you Exhibit S which is captioned "tugon" dated Agosto 30, 1978 there is a
signature here below item No. 1, will you tell this court whose signature is this?
A. Yes, sir, that is her signature.
Q. Why do you say that is her signature?
A. I am familiar with her signature.
23

So, the only reason that Evangeline can give as to why she was familiar with the handwriting of the deceased was because
she lived with her since birth. She never declared that she saw the deceased write a note or sign a document.
The former lawyer of the deceased, Fiscal Waga, testified that:
Q. Do you know Matilde Vda de Ramonal?
A. Yes, sir I know her because she is my godmother the husband is my godfather. Actually I am related to
the husband by consanguinity.
Q. Can you tell the name of the husband?
A. The late husband is Justo Ramonal.
24

x x x x x x x x x
Q. Can you tell this court whether the spouses Justo Ramonal and Matilde Ramonal have legitimate
children?
A. As far as I know they have no legitimate children.
25

x x x x x x x x x
Q. You said after becoming a lawyer you practice your profession? Where?
A. Here in Cagayan de Oro City.
Q. Do you have services rendered with the deceased Matilde vda de Ramonal?
A. I assisted her in terminating the partition, of properties.
Q. When you said assisted, you acted as her counsel? Any sort of counsel as in what case is that, Fiscal?
A. It is about the project partition to terminate the property, which was under the court before.
26

x x x x x x x x x
Q. Appearing in special proceeding no. 427 is the amended inventory which is marked as exhibit N of the
estate of Justo Ramonal and there appears a signature over the type written word Matilde vda de Ramonal,
whose signature is this?
A. That is the signature of Matilde Vda de Ramonal.
Q. Also in exhibit n-3, whose signature is this?
A. This one here that is the signature of Mrs. Matilde vda de Ramonal.
27

x x x x x x x x x
Q. Aside from attending as counsel in that Special Proceeding Case No. 427 what were the other assistance
wherein you were rendering professional service to the deceased Matilde Vda de Ramonal?
A. I can not remember if I have assisted her in other matters but if there are documents to show that I have
assisted then I can recall.
28

x x x x x x x x x
Q. Now, I am showing to you exhibit S which is titled "tugon", kindly go over this document, Fiscal Waga
and tell the court whether you are familiar with the handwriting contained in that document marked as exhibit
"S"?
A. I am not familiar with the handwriting.
Q. This one, Matilde Vda de Ramonal, whose signature is this?
A. I think this signature here it seems to be the signature of Mrs. Matilde vda de Ramonal.
Q. Now, in item No. 2 there is that signature here of Matilde Vda de Ramonal, can you tell the court whose
signature is this?
A. Well, that is similar to that signature appearing in the project of partition.
Q. Also in item no. 3 there is that signature Matilde Vda de Ramonal, can you tell the court whose signature
is that?
A. As I said, this signature also seems to be the signature of Matilde vda de Ramonal.
Q. Why do you say that?
A. Because there is a similarity in the way it is being written.
Q. How about this signature in item no. 4, can you tell the court whose signature is this?
A. The same is true with the signature in item no. 4. It seems that they are similar.
29

x x x x x x x x x
Q. Mr. Prosecutor, I heard you when you said that the signature of Matilde Vda de Ramonal Appearing in
exhibit S seems to be the signature of Matilde vda de Ramonal?
A. Yes, it is similar to the project of partition.
Q. So you are not definite that this is the signature of Matilde vda de Ramonal. You are merely supposing
that it seems to be her signature because it is similar to the signature of the project of partition which you
have made?
A. That is true.
30

From the testimonies of these witnesses, the Court of Appeals allowed the will to probate and disregard the requirement of
three witnesses in case of contested holographic will, citing the decision in Azaola vs. Singson,
31
ruling that the requirement
is merely directory and not mandatory.
In the case of Ajero vs. Court of Appeals,
32
we said that "the object of the solemnities surrounding the execution of wills is
to close the door against bad faith and fraud, to avoid substitution of wills and testaments and to guaranty their truth and
authenticity. Therefore, the laws on this subject should be interpreted in such a way as to attain these primordial ends. But
on the other hand, also one must not lose sight of the fact that it is not the object of the law to restrain and curtail the
exercise of the right to make a will.
However, we cannot eliminate the possibility of a false document being adjudged as the will of the testator, which is why if
the holographic will is contested, that law requires three witnesses to declare that the will was in the handwriting of the
deceased.
The will was found not in the personal belongings of the deceased but with one of the respondents, who kept it even before
the death of the deceased. In the testimony of Ms. Binanay, she revealed that the will was in her possession as early as 1985,
or five years before the death of the deceased.
There was no opportunity for an expert to compare the signature and the handwriting of the deceased with other documents
signed and executed by her during her lifetime. The only chance at comparison was during the cross-examination of Ms.
Binanay when the lawyer of petitioners asked Ms. Binanay to compare the documents which contained the signature of the
deceased with that of the holographic will and she is not a handwriting expert. Even the former lawyer of the deceased
expressed doubts as to the authenticity of the signature in the holographic will.
A visual examination of the holographic will convince us that the strokes are different when compared with other documents
written by the testator. The signature of the testator in some of the disposition is not readable. There were uneven strokes,
retracing and erasures on the will.
Comparing the signature in the holographic will dated August 30, 1978,
33
and the signatures in several documents such as
the application letter for pasture permit dated December 30, 1980,
34
and a letter dated June 16, 1978,
35
the strokes are
different. In the letters, there are continuous flows of the strokes, evidencing that there is no hesitation in writing unlike that
of the holographic will. We, therefore, cannot be certain that ruling holographic will was in the handwriting by the deceased.
IN VIEW WHEREOF, the decision appealed from is SET ASIDE. The records are ordered remanded to the court of origin
with instructions to allow petitioners to adduce evidence in support of their opposition to the probate of the holographic will
of the deceased Matilde Seo vda. de Ramonal.1wphi1.nt
No costs.
SO ORDERED.
Davide, Jr., C.J., Puno, Kapunan and Ynares-Santiago, JJ., concur.

Footnotes

1
In CA-G.R. CV No. 31365, promulgated on October 9, 1995, Justice Pedro A. Ramirez, ponente, Justices
Angelina Sandoval Gutierrez and Conrado M. Vasquez, Jr., concurring, CA Rollo, pp. 83-92.
2
Decision, Court of Appeals Records, pp. 83-93.
3
Original Records, Petition, pp. 1-7.
4
Ibid., p. 4.
5
Original Record, Opposition, pp. 13-17.
6
Demurrer to Evidence, pp. 140-155, October 13, 1990.
7
Original Records, Order, p. 192.
8
Ibid., Notice of Appeal (November 29, 1990), p. 194.
9
Court of Appeals Rollo, Decision, pp. 83-92.
10
Ibid.
11
Pioneer Texturing Corporation vs. National Labor Relations Commission, 280 SCRA 806 [1997]; see also
Director of Lands vs. Court of Appeals, 276 SCRA 276 [1997]; Cecilleville Realty and Service Corporation
vs. Court of Appeals, 278 SCRA 819 [1997]; Barabada vs. Gustilo, 165 SCRA 757 [1988].
12
TSN, September 5, 1990, p. 23.
13
Ibid., p. 24.
14
TSN, September 5, 1990, pp. 24-26.
15
Ibid., pp. 28-29.
16
TSN, September 5, 1990, pp. 28-29.
17
TSN, September 5, 1990, p. 48.
18
TSN, September 5, 1990, p. 49.
19
TSN, p. 62.
20
TSN, pp. 58-59.
21
TSN, pp. 64-66.
22
TSN, September 27, 1990, pp. 145-147.
23
TSN, p. 148.
24
TSN, September 6, 1990, p. 74.
25
Ibid.
26
TSN, September 6, 1990, pp. 76-77.
27
Ibid.
28
TSN, September 6, 1990, pp. 79-80.
29
TSN, pp. 80-82.
30
TSN, September 6, 1990, pp. 83-84.
31
Supra.
32
236 SCRA 489 [1994].
33
Original Record, Exhibit "S", p. 101.
34
Ibid., Exhibit "T", p. 103.
35
Ibid., Exhibit "V", p. 105.

The Lawphil Project - Arellano Law Foundation





Today is Monday, July 21, 2014






Republic of the Philippines
SUPREME COURT
Manila
FIRST DIVISION
G.R. No. L-40207 September 28, 1984
ROSA K. KALAW, petitioner,
vs.
HON. JUDGE BENJAMIN RELOVA, Presiding Judge of the CFI of Batangas, Branch VI, Lipa City, and
GREGORIO K. KALAW, respondents.
Leandro H. Fernandez for petitioner.
Antonio Quintos and Jose M. Yacat for respondents.

MELENCIO-HERRERA, J .:
On September 1, 1971, private respondent GREGORIO K. KALAW, claiming to be the sole heir of his deceased
sister, Natividad K. Kalaw, filed a petition before the Court of First Instance of Batangas, Branch VI, Lipa City, for
the probate of her holographic Will executed on December 24, 1968.
The holographic Will reads in full as follows:
My Last will and Testament
In the name of God, Amen.
I Natividad K. Kalaw Filipino 63years of age, single, and a resident of Lipa City, being of sound and disposing
mind and memory, do hereby declare thus to be my last will and testament.
1. It is my will that I'll be burried in the cemetery of the catholic church of Lipa City. In accordance with the rights
of said Church, and that my executrix hereinafter named provide and erect at the expose of my state a suitable
monument to perpetuate my memory.
xxx xxx xxx
The holographic Will, as first written, named ROSA K. Kalaw, a sister of the testatrix as her sole heir. Hence, on
November 10, 1971, petitioner ROSA K. Kalaw opposed probate alleging, in substance, that the holographic Will
contained alterations, corrections, and insertions without the proper authentication by the full signature of the
testatrix as required by Article 814 of the Civil Code reading:
Art. 814. In case of any insertion, cancellation, erasure or alteration in a holographic will the
testator must authenticate the same by his full signature.
ROSA's position was that the holographic Will, as first written, should be given effect and probated so that she
could be the sole heir thereunder.
After trial, respondent Judge denied probate in an Order, dated September 3, 197 3, reading in part:
The document Exhibit "C" was submitted to the National Bureau of Investigation for
examination. The NBI reported that the handwriting, the signature, the insertions and/or
additions and the initial were made by one and the same person. Consequently, Exhibit "C"
was the handwriting of the decedent, Natividad K. Kalaw. The only question is whether the
win, Exhibit 'C', should be admitted to probate although the alterations and/or insertions or
additions above-mentioned were not authenticated by the full signature of the testatrix
pursuant to Art. 814 of the Civil Code. The petitioner contends that the oppositors are
estopped to assert the provision of Art. 814 on the ground that they themselves agreed thru
their counsel to submit the Document to the NBI FOR EXAMINATIONS. This is untenable.
The parties did not agree, nor was it impliedly understood, that the oppositors would be in
estoppel.
The Court finds, therefore, that the provision of Article 814 of the Civil Code is applicable to
Exhibit "C". Finding the insertions, alterations and/or additions in Exhibit "C" not to be
authenticated by the full signature of the testatrix Natividad K. Kalaw, the Court will deny the
admission to probate of Exhibit "C".
WHEREFORE, the petition to probate Exhibit "C" as the holographic will of Natividad K.
Kalaw is hereby denied.
SO ORDERED.
From that Order, GREGORIO moved for reconsideration arguing that since the alterations and/or insertions were
the testatrix, the denial to probate of her holographic Will would be contrary to her right of testamentary
disposition. Reconsideration was denied in an Order, dated November 2, 1973, on the ground that "Article 814 of
the Civil Code being , clear and explicit, (it) requires no necessity for interpretation."
From that Order, dated September 3, 1973, denying probate, and the Order dated November 2, 1973 denying
reconsideration, ROSA filed this Petition for Review on certiorari on the sole legal question of whether or not the
original unaltered text after subsequent alterations and insertions were voided by the Trial Court for lack of
authentication by the full signature of the testatrix, should be probated or not, with her as sole heir.
Ordinarily, when a number of erasures, corrections, and interlineations made by the testator in a holographic Will
litem not been noted under his signature, ... the Will is not thereby invalidated as a whole, but at most only as
respects the particular words erased, corrected or interlined.1 Manresa gave an Identical commentary when he said "la omision de la salvedad
no anula el testamento, segun la regla de jurisprudencia establecida en la sentencia de 4 de Abril de 1895."
2

However, when as in this case, the holographic Will in dispute had only one substantial provision, which was altered by substituting the
original heir with another, but which alteration did not carry the requisite of full authentication by the full signature of the testator, the
effect must be that the entire Will is voided or revoked for the simple reason that nothing remains in the Will after that which could
remain valid. To state that the Will as first written should be given efficacy is to disregard the seeming change of mind of the testatrix.
But that change of mind can neither be given effect because she failed to authenticate it in the manner required by law by affixing her
full signature,
The ruling in Velasco, supra, must be held confined to such insertions, cancellations, erasures or alterations in a holographic Will, which
affect only the efficacy of the altered words themselves but not the essence and validity of the Will itself. As it is, with the erasures,
cancellations and alterations made by the testatrix herein, her real intention cannot be determined with certitude. As Manresa had
stated in his commentary on Article 688 of the Spanish Civil Code, whence Article 814 of the new Civil Code was derived:
... No infringe lo dispuesto en este articulo del Codigo (el 688) la sentencia que no declara la nulidad de un
testamento olografo que contenga palabras tachadas, enmendadas o entre renglones no salvadas por el
testador bajo su firnia segun previene el parrafo tercero del mismo, porque, en realidad, tal omision solo puede
afectar a la validez o eficacia de tales palabras, y nunca al testamento mismo, ya por estar esa disposicion en
parrafo aparte de aquel que determine las condiciones necesarias para la validez del testamento olografo, ya
porque, de admitir lo contrario, se Ilegaria al absurdo de que pequefias enmiendas no salvadas, que en nada
afectasen a la parte esencial y respectiva del testamento, vinieran a anular este, y ya porque el precepto
contenido en dicho parrafo ha de entenderse en perfecta armonia y congruencia con el art. 26 de la ley del
Notariado que declara nulas las adiciones apostillas entrerrenglonados, raspaduras y tachados en las
escrituras matrices, siempre que no se salven en la forma prevenida, paro no el documento que las contenga,
y con mayor motivo cuando las palabras enmendadas, tachadas, o entrerrenglonadas no tengan importancia
ni susciten duda alguna acerca del pensamiento del testador, o constituyan meros accidentes de ortografia o
de purez escrituraria, sin trascendencia alguna(l).
Mas para que sea aplicable la doctrina de excepcion contenida en este ultimo fallo, es preciso que las
tachaduras, enmiendas o entrerrenglonados sin salvar saan de pala bras que no afecter4 alteren ni uarien de
modo substancial la express voluntad del testador manifiesta en el documento. Asi lo advierte la sentencia de
29 de Noviembre de 1916, que declara nulo un testamento olografo por no estar salvada por el testador la
enmienda del guarismo ultimo del ao en que fue extendido
3
(Emphasis ours).
WHEREFORE, this Petition is hereby dismissed and the Decision of respondent Judge, dated September 3, 1973, is hereby affirmed in
toto. No costs.
SO ORDERED.
Plana, Gutierrez, Jr. and De la Fuente, JJ., concur.
Relova, J., took no part.


Separate Opinions

TEEHANKEE, J ., concurring:
I concur. Rosa, having appealed to this Court on a sole question of law, is bound by the trial court's factual
finding that the peculiar alterations in the holographic will crossing out Rosa's name and instead inserting her
brother Gregorio's name as sole heir and "sole executrix" were made by the testatrix in her own handwriting. (I
find it peculiar that the testatrix who was obviously an educated person would unthinkingly make such crude
alterations instead of consulting her lawyer and writing an entirely new holographic wig in order to avoid any
doubts as to her change of heir. It should be noted that the first alteration crossing out "sister Rosa K. Kalaw"
and inserting "brother Gregorio Kalaw" as sole heir is not even initialed by the testatrix. Only the second
alteration crossing out "sister Rosa K. Kalaw" and inserting "brother Gregorio Kalaw" as "sole executrix" is
initialed.) Probate of the radically altered will replacing Gregorio for Rosa as sole heir is properly denied, since
the same was not duly authenticated by the full signature of the executrix as mandatorily required by Article 814
of the Civil Code. The original unaltered will naming Rosa as sole heir cannot, however, be given effect in view of
the trial court's factual finding that the testatrix had by her own handwriting substituted Gregorio for Rosa, so that
there is no longer any will naming Rosa as sole heir. The net result is that the testatrix left no valid will and both
Rosa and Gregorio as her next of kill succeed to her intestate estate.


Separate Opinions
TEEHANKEE, J ., concurring:
I concur. Rosa, having appealed to this Court on a sole question of law, is bound by the trial court's factual
finding that the peculiar alterations in the holographic will crossing out Rosa's name and instead inserting her
brother Gregorio's name as sole heir and "sole executrix" were made by the testatrix in her own handwriting. (I
find it peculiar that the testatrix who was obviously an educated person would unthinkingly make such crude
alterations instead of consulting her lawyer and writing an entirely new holographic wig in order to avoid any
doubts as to her change of heir. It should be noted that the first alteration crossing out "sister Rosa K. Kalaw"
and inserting "brother Gregorio Kalaw" as sole heir is not even initialed by the testatrix. Only the second
alteration crossing out "sister Rosa K. Kalaw" and inserting "brother Gregorio Kalaw" as "sole executrix" is
initialed.) Probate of the radically altered will replacing Gregorio for Rosa as sole heir is properly denied, since
the same was not duly authenticated by the full signature of the executrix as mandatorily required by Article 814
of the Civil Code. The original unaltered will naming Rosa as sole heir cannot, however, be given effect in view of
the trial court's factual finding that the testatrix had by her own handwriting substituted Gregorio for Rosa, so that
there is no longer any will naming Rosa as sole heir. The net result is that the testatrix left no valid will and both
Rosa and Gregorio as her next of kill succeed to her intestate estate.
Footnotes
1 Velasco vs. Lopez, 1 Phil. 720, 725 (1903), citing a Decision of the Supreme Court of Spain of April 4, 1895.
2 Comentarios al Codigo Civil Espaol, Quinta edicion, Tomo 5, Lib. III Tit. III Cap. I Art. 688; pag. 483.
3 Ibid.

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