EN BANC

[G.R. No. L-4067. November 29, 1951.]

In the Matter of the Will of ANTERO MERCADO, deceased. ROSARIO
GARCIA, petitioner, vs. JULIANA LACUESTA, ET AL., respondents.
Elviro L. Peralta and Hermenegildo A. Prieto, for petitioner.
Faustino B. Tobia, Juan I. Ines and Federico Tacason, for respondents.
SYLLABUS
1. WILLS; ATTESTATION CLAUSE; SIGNING BY ANOTHER OF TESTATOR'S NAME AT
LATTER'S DIRECTION. When the testator expressly caused another to sign the former's name,
this fact must be recited in the attestation clause. Otherwise, the will is fatally defective.
2. ID.; SIGNATURE OF TESTATOR; CROSS. Where the cross appearing on a will is not
the usual signature of the testator or even one of the ways by which he signed his name, that
cross cannot be considered a valid signature.
D E C I S I O N
PARAS, C.J p:
This is an appeal from a decision of the Court of Appeals disallowing the will of
Antero Mercado dated January 3, 1943. The will is written in the Ilocano dialect and contains the
following attestation clause:
"We, the undersigned, by these presents do declare that the
foregoing testament of Antero Mercado was signed by himself and also by us
below his name and of this attestation clause and that of the left margin of
the three pages thereof. Page three the continuation of this attestation
clause; this will is written in Ilocano dialect which is spoken and understood
by the testator, and it bears the corresponding number in letter which
compose of three pages and all of them were signed in the presence of the
testator and witnesses, and the witnesses in the presence of the testator and
all and each and every one of us witnesses.
"In testimony, whereof, we sign this testament, this the third day
of January, one thousand nine hundred forty three, (1943) A.D.

(Sgd.) "NUMERIANO EVANGELISTA (Sgd.) ROSENDO CORTES
(Sgd.) BIBIANA ILLEGIBLE"

The will appears to have been signed by Atty. Florentino Javier who wrote the name
of Antero Mercado, followed below by "A ruego del testador" and the name of Florentino Javier.
Antero Mercado is alleged to have written a cross immediately after his name. The Court of
Appeals, reversing the judgment of the Court of First Instance of Ilocos Norte, ruled that the
attestation clause failed (1) to certify that the will was signed on all the left margins of the three
pages and at the end of the will by Atty. Florentino Javier at the express request of the testator in
the presence of the testator and each and every one of the witnesses; (2) to certify that after the
signing of the name of the testator by Atty. Javier at the former's request said testator has
written a cross at the end of his name and on the left margin of the three pages of which the will
consists and at the end thereof; (3) to certify that the three witnesses signed the will in all the
pages thereon in the presence of the testator and of each other.
In our opinion, the attestation clause is fatally defective for failing to state that
Antero Mercado caused Atty. Florentino Javier to write the testator's name under his express
direction, as required by section 618 of the Code of Civil Procedure. The herein petitioner (who is
appealing by way of certiorari from the decision of the Court of Appeals) argues, however, that
there is no need for such recital because the cross written by the testator after his name is a
sufficient signature and the signature of Atty. Florentino Javier is a surplusage. Petitioner's theory
is that the cross is as much a signature as a thumbmark, the latter having been held sufficient by
this Court in the cases of De Gala vs. Gonzales and Ona, 53 Phil., 104; Dolar vs. Diancin, 55 Phil.,
479; Payad vs. Tolentino, 62 Phil., 848; Neyra vs. Neyra, 76 Phil., 296 and Lopez vs. Liboro, 81
Phil., 429.
It is not here pretended that the cross appearing on the will is the usual signature of
Antero Mercado or even one of the ways by which he signed his name. After mature reflection,
we are not prepared to liken the mere sign of a cross to a thumbmark, and the reason is obvious.
The cross cannot and does not have the trustworthiness of a thumbmark.
What has been said makes it unnecessary for us to determine whether there is a
sufficient recital in the attestation clause as to the signing of the will by the testator in the
presence of the witnesses, and by the latter in the presence of the testator and of each other.
Wherefore, the appealed decision is hereby affirmed, with costs against the
petitioner. So ordered.
Feria, Pablo, Bengzon, Padilla, Reyes, Jugo and Bautista Angelo, JJ., concur.
||| (In re: Mercado v. Lacuesta, G.R. No. L-4067, November 29, 1951)

FIRST DIVISION
[G.R. No. 6845. September 1, 1914.]
YAP TUA, petitioner-appellee, vs. YAP CA KUAN and YAP CA LLU, objectors-
appellants.
Chicote & Miranda for appellants.
O'Brien & DeWitt for appellee.
SYLLABUS
1. WILLS; FORM OF SIGNATURE; FIRST NAME OF TESTATOR ONLY. It has been held
time again that one who makes a will may sign the same by the use of a mark, the name having
been written by others. If the writing of a mark simply upon a will is sufficient indication of the
intention of the person to make and execute it, then certainly the writing of a portion or all of the
name ought to be accepted as a clear indication of intention to execute it. The man who cannot
write and who is obliged to make his mark simply therefore upon the will, is held to "sign" as
effectually as if he had written his initials or his full name. It would seem to be sufficient, under
the law requiring a signature by the person making a will to make his mark, to place his initials or
all or any part of his name thereon.
2. ID.; SIGNATURE OF TESTATOR AND WITNESSES. While the rule is absolute that
one who makes a will must sign the same in the presence of the witnesses and that the witnesses
must sign in the presence of each other, as well as in the presence of the one making the will,
yet, nevertheless, the actual seeing of the signature made is not necessary. It is sufficient if the
signatures are made where it is possible for each of the necessary parties, if they so desire, to see
the signatures placed upon the will.
D E C I S I O N
JOHNSON, J p:
It appears from the record that on the 23d of August, 1909, one Perfecto Gabriel,
representing the petitioner, Yap Tua, presented a petition in the Court of First Instance of the city
of Manila, asking that the will of Tomasa Elizaga Yap Caong be admitted to probate, as the last
will and testament of Tomasa Elizaga Yap Caong, deceased. It appears that the said Tomasa
Elizaga Yap Caong died in the city of Manila on the 11th day of August, 1909. Accompanying said
petition and attached thereto was the alleged will of the deceased. It appears that the will was
signed by deceased, as well as Anselmo Zacarias, Severo Tabora, and Timoteo Paez.
Said petition, after due notice was given, was brought on for hearing on the 18th day
of September, 1909. At that hearing several witnesses were sworn. Timoteo Paez declared that
he was 48 years of age; that he had known the said Tomasa ElizagaYap Caong; that she had died
on the 11th day of August, 1909; that before her death she had executed a last will and
testament; that he was present at the time of the execution of the same; that he had signed the
will as a witness; that Aselmo Zacarias and Severo Tabora had also signed said will as witnesses
and that they had signed the will in the presence of the deceased.
Pablo Agustin also declared as a witness and said that he was 40 years of age; that he
knew Tomasa Elizaga Yap Caong during her lifetime; that she died on the 11th day of August,
1909, in the city of Manila; that before her death she had executed a last will and testament; that
he was present at the time said last will was executed; that there were also present Timoteo
Paez and Severo Tabora and a person called Anselmo; that the said Tomasa Elizaga Yap Caong
signed the will in the presence of the witnesses; that he had seen her sign the will with his own
eyes; that the witnesses has signed the will in the presence of the said Tomasa Elizaga Yap Caong
and in the presence of each other; that the said Tomasa Elizaga Yap Caong signed the will
voluntarily; and in his judgment, she was in the possession of her faculties; that there were no
threats or intimidation used to induce her to sign the will; that she signed it voluntarily.
No further witnesses were called and there was no further opposition presented to
the legalization of the said will.
After hearing the foregoing witnesses, the Honorable A. S. Crossfield, judge, on the
29th day of September, 1909, ordered that the last will and testament of Tomasa
Elizaga Yap Caong be allowed and admitted to probate. The will was attached to the record and
marked Exhibit A. The court further ordered that one Yap Tua be a appointed as executor of the
will, upon the giving of a bond, the amount of which was to be fixed later.
From the record it appears that no further proceedings were had until the 28th of
February, 1910, when Yap Ca Kuan andYap Ca Llu appeared and presented a petition, alleging
that they were interested in the matters of the sail will and desired to intervene asked that a
guardian ad litem be appointed to represented them in the cause.
On the 1st day of March, 1910, the court appointed Gabriel La O as guardian ad
litem of said parties. Gabriel La O accepted said appointment, took the oath of office and entered
upon the performance of his duties as guardian ad litem of said parties. On the 2d day of March,
1910, the said Gabriel La O appeared in court and presented a motion in which he alleged, in
substance:
First. That the will dated the 11th day of August, 1909, and admitted to probate by
order of the court on the 29th day of September, 1909, was null, for the following reasons:
"(a) Because the same had not been authorized nor signed by the
witnesses as the law prescribes.
"(b) Because at the time of the execution of the will, the said
Tomasa Elizaga Yap Caong was not then mentally capacitated to execute the
same, due to her sickness.
"(c) Because her signature to the will had been obtained through
fraud and illegal influence upon the part of persons who were to receive a
benefit from the same, and because the said Tomasa Elizaga Yap Caong had
no intention of executing the same."
Second. That before the execution of the said will, which they alleged to be null, the
said Tomasa Elizaga Yap Caong had executed another will, with all the formalities required by
law, upon the 6th day of August, 1909.
Third. That the said Yap Ca Kuan and Yap Ca Llu were minors and that, even though
they had been negligent in presenting their opposition to the legalization of the will, said
negligent was excusable, on account of their age.
Upon the foregoing facts the court was requested to annul and set aside the order of
the 29th day of September, 1909, and to grant to said minors an opportunity to present new
proof relating to the due execution of said will. Said petition was based upon the provisions of
section 113 of the Code of Procedure in Civil Actions.
While it is not clear from the record, apparently the said minors in their petition for a
new trial, attached to said petition the alleged will of August 6, 1909, of the said Tomasa
Elizaga Yap Caong, and the affidavits of Severo Tabora, Cleotilde and Cornelia Serrano.
Upon the 10th day of March, 1910, upon the hearing of said motion for rehearing, the
Honorable A. S. Crossfield, judge, granted said motion and ordered that the rehearing should
take place upon the 18th day of March, 1910, and directed that notice should be given to the
petitioners of said rehearing and to all other persons interested in the will. At the rehearing a
number of witnesses were examined.
It will be remembered that one of the grounds upon which the new trial was
requested was that the deceased, Tomasa Elizaga Yap Caong, had not signed the will (Exhibit A)
of the 11th of August, 1909; that it support of that allegation, the protestants, during the
rehearing, presented a witness called Tomasa Puzon. Puzon testified that he was a professor and
an expert in handwriting, and upon being shown the will (of August 11, 1909) Exhibit A, testified
that the name and surname on Exhibit A, in his judgment were written by two different hands,
though the given name is the same as that upon Exhibit 1 (the will of August 6, 1909), because he
found in the name "Tomasa" in Exhibit A a similarity in the tracing to the "Tomasa" in Exhibit 1;
that comparing the surname on Exhibit A with the surname on Exhibit 1 he found that the
character of the writing was thoroughly distinguished and different by the tracing and by the
direction of the letters in the said two exhibits; that from his experience and observation he
believed that the name "Tomasa" and "Yap Caong," appearing in the signature on Exhibit A were
written by different persons.
Puzon, being cross-questioned with reference to his capacity as an expert in
handwriting, testified that while he was a student in the Ateneo de Manila, he had studied
penmanship; that he could not tell exactly when that was, except that he had concluded his
course in the year 1882; that since that time he had been telegraph operator for seventeen years
and that he had acted as an expert in handwriting in the courts in the provinces.
Gabriel La O was called as a witness during the rehearing and testified that he had
drawn the will of the 6th of August, 1909, at the request of Tomasa Elizaga Yap Caong; that it was
drawn in accordance with her request and under her directions; that she had signed it; that the
same had been signed by three witnesses in her presence and in the presence of each other; that
the will was written in her house; that she was sick and was lying in her bed, but that she sat up
to sign the will; that she signed the will with great difficulty; that she was in her right mind.
The said Severo Tabora was also called as a witness again during the rehearing. He
testified that he knew Tomasa ElizagaYap Caong during her lifetime; that she was dead; that his
signature as a witness to Exhibit A (the will of August 11, 1909) was placed there by him; that the
deceased, Tomasa Elizaga Yap Caong, became familiar with the contents of the will because she
signed it before he (the witness) did; that he did not know whether anybody there told her to
sign the will or not; that he signed two wills; that he did not know La O; that he did not believe
that Tomasa had signed the will (Exhibit A) before he arrived at the house; that he was not sure
that he had seen Tomasa Elizaga Yap Caong sign Exhibit A because there were many people and
there was a screen at the door and he could not see; that he was called as a witness to sign the
second will and was told by the people there that it was the same as the first; that the will
(Exhibit A) was on a table, far from the patient, in the house but outside the room where the
patient was; that the will was signed by Paez and himself; that Anselmo Zacarias was there; that
he was not sure whether Anselmo Zacarias signed the will or not; that he was not sure whether
Tomasa Elizaga Yap Caong could see the table on which the will was written at the time it was
signed or not; that there were many people in the house; that he remembered the names of
Pedro and Lorenzo; that he could not remember the names of any others; that the will remained
on the table after he signed it; that after he signed the will he went into the room where Tomasa
was lying; that the will was left on the table outside; that Tomasa was very ill; that he heard the
people asking Tomasa to sign the will after he (the witness) has signed it; that he saw Paez sign
the will; that he could not remember whether Anselmo Zacarias had signed the will, because
immediately after he and Paez signed it, he left because he was hungry; that the place where the
table was located was in the same house, on the floor, about two steps down from the floor on
which Tomasa was.

Rufino R. Papa was called as a witness for the purpose of supporting the allegation
that Tomasa Elizaga Yap Caong was mentally incapacitated to make the will dated August 11,
1909 (Exhibit A). Papa declared that he was a physician; that he knew Tomasa Elizaga Yap Caong;
that he had treated her in the month of August; that he visited her first on the 8th day of August;
that he visited her again on the 9th and 10th days of August; that on the first visit he found the
sick woman completely weak very weak from her sickness, in the third stage tuberculosis; that
she was lying in bed; that on the first visit he found her with but little sense, the second day also,
and on the third day she had lost all her intelligence; that she died on the 11th of August; that he
was requested to issue the death certificate; that when he asked her (Tomasa) whether she was
feeling any pain or anything of that kind, she did not answer at all; that she was in a condition of
stupor, induced, as he believed, by the stage of uraemia from which she was suffering.
Anselmo Zacarias, who had signed the will of August 11, 1909, also called as a witness
during the rehearing. He testified that he had known Tomasa Elizaga Yap Caong since he was a
child; that Tomasa was dead; that he had written the will Exhibit A; that it was all in his writing
except the last part, which was written by Carlos Sobaco; that he had written the will Exhibit A at
the request of the uncle of Tomasa; that Lorenzo, the brother of the deceased, was the one who
had instructed him as to the terms of the will; that the deceased had not spoken to him
concerning the terms of the will; that the will was written in the dining room of the residence of
the deceased; that Tomasa was in another room different from that in which the will was
written; that the will was not written in the presence of Tomasa; that he signed the will as a
witness in the room where Tomasa was lying; that the other witnesses signed the will in the
same room; that when he went into the room where the sick woman was (Tomasa
Elizaga Yap Caong) Lorenzo had the will in his hands; that when Lorenzo came to the bed he
showned the will to his sister (Tomasa) and requested her to sign it; that she was lying stretched
out on the bed and two women, who were taking care of her, helped her to sit up, supporting
her by placing their hands at her back; that when she started to write her name, he withdrew
from the bed on account of the heat inside the room; when he came back again to the sick bed
the will was signed as was again in the hands of Lorenzo; that he did not see Tomasa sign the will
because he withdrew from the room; that he did not know whether Tomasa had been informed
of the contests of the will or not; he supposed she must have read it because Lorenzo turned the
will over to her; that when Lorenzo asked her to sign the will, he did not know what she said
he could not hear her voice; that he did not know whether the sick woman saw him sign the will
or not; that he believed that Tomasa died the next day after the will had been signed; that the
other two witnesses, Timoteo Paez and Severo Tabora, had signed the will in the room with the
sick woman; that he saw them sign the will and that they saw him sign it; that he was not sure
whether the testatrix could have seen them at the time they signed the will or not; that there
was a screen before the bed; that he did not think that Lorenzo had been giving instructions as to
the contents of the will; that bout ten or fifteen minutes elapsed from the time Lorenzo handed
the will to Tomasa before she started to sign it; that the pen with which she signed the will was
given to her and she held it.
Cleotilde Mariano testified that he was a cigarette maker; that he knew Tomasa
Elizaga Yap Caong and that she was dead; that she had made two wills; that the first one was
written by La O and the second by Zacarias; that he was present at the time Zacarias wrote the
second one; that he was present when the second will was taken to Tomasa for signature; that
Lorenzo had told Tomasa that the second will was exactly like the first; that Tomasa said she
could not sign it.
On cross examination he testified that there was a lot of visitors there; that Zacarias
was not there; that Paez and Tabora were there; that he had told Tomasa that the second will
was exactly like the first.
During the rehearing Cornelia
Serrano and Pedro Francisco were also examined as witnesses. There is nothing in
their testimony, however, which in our opinion is important.
In rebuttal Julia de la Cruz was called as a witness. She testified that she was 19 years
of age; that she knew Tomasa Elizaga Yap Caong during her lifetime; that she lived in the house
of Tomasa during the last week of her illness; that Tomasa had made two wills; that she was
present when the second one was executed; that a lawyer had drawn the will in the dining room
and after it had been drawn and everything finished, it was taken to where Doa Tomasa was,
for her signature; that it was taken her by Anselmo Zacarias; that she was present at the time
Tomasa signed the will that there were many other people present also; that she did not see
Timoteo Paez there; that she saw Severo Tabora that Anselmo Zacarias was present; that she did
not hear Cleotilde Mariano ask Tomasa to sign the will; that she did not hear Lorenzo say to
Tomasa that the second will was the same as the first; that Tomasa asked her to help her to sit
up and to put a pillow to her back when Zacarias gave her some paper or document and asked
her to sign it; that she saw Tomasa take hold of the pen and try to sign it but she did not see the
place she signed the document, for the reason that she left room; that she saw Tomasa sign the
document but did not see on what place of document she signed; that she heard Tomasa ask for
another notary public and that a notary public came the next morning that Tomasa was able to
move about in the bed; that she had seen Tomasa in the act of starting to write her signature
when she told her to get her some water.
Yap Cao Quiang was also called as a witness in rebuttal. He testified that he knew
Tomasa Elizaga Yap Caong and knew that she had made a will; that he saw the will at the time it
was written; that he saw Tomasa sign it on her bed he did not hear Lorenzo ask Tomasa to sign
the will that Lorenzo had handed the will to Tomasa to sign; that he saw the witnesses sign the
will on a table near the bed; that the table was outside the curtain or screen and near the
entrance to the room where Tomasa was lying.
Lorenzo Yap Caong testified as a witness on rebuttal. He said that he knew Anselmo
Zacarias and that Zacarias wrote the will of Tomasa Elizaga Yap Caong; that Tomasa had given
him instructions; that Tomasa had said that she wanted to make another will; that he had seen
the witnesses sign the will; that the will was on the table near the bed of Tomasa; that Tomasa,
from where she was lying in the bed, could see the table where the witnesses had signed the will.
During the rehearing certain other witnesses were also examined; in our opinion,
however, it is unnecessary to quote from them for the reason that their testimony in no way
affects the preponderance of proof above quoted.
At the close of the rehearing the Honorable A. S. Crossfield, judge, in an extended
opinion, reached the conclusion that the last will and testament of Tomasa Elizaga Yap Caong,
which was attached to the record and marked Exhibit A was the last will and testament of the
said Tomasa Elizaga Yap Caong and admitted it to probate and ordered that the administrator
therefore appointed should continue as such administrator. From that order the protestants
appealed to this court, and made the following assignments of or error:
"I. The court erred in declaring that the will, Exhibit A, was
executed by the deceased Tomasa Yap Caong, without the intervention of any
external influence on the part of other persons.
"II. The court erred in declaring that the testator had clear
knowledge and knew what she was doing at the time of signing the will.
"III. The court erred in declaring that the signature of the deceased
Tomasa Yap Caong in the first will, Exhibit 1, is identical with that which
appears in the second will, Exhibit A.
"IV. The court erred in declaring that the will, Exhibit A, was
executed in accordance with the law."
With reference to the first assignment of error, to wit, that undue influence was
brought to bear upon Tomasa Elizaga YapCaong in the execution of her will of August 11th 1909
(Exhibit A), the lower court found that no undue influence had been exercised over the mind of
the said Tomasa Elizaga Yap Caong. While it is true that some of the witnesses testified that the
brother of Tomasa, one Lorenzo, had attempted to unduly influence he mind in the execution of
her will, upon the other hand, there were several witnesses who testified that Lorenzo did not
attempt, at the time of the execution of the will, to influence her mind in any way. The lower
court having had an opportunity to see, to hear, and the note the witnesses during their
examination, reached the conclusion that a preponderance of the evidence showed that no
undue influence had been used. We find no good reason in the record for reversing his
conclusions upon that question.
With the reference to the second assignment of error, to wit, that Tomasa
Elizaga Yap Caong was not sound mind and memory at the time of the execution of the will, we
find the same conflict in the declarations of the witnesses which we found with reference to the
undue influence. While the testimony of Dr. Papa is very strong relating to the mental condition
of Tomasa Elizaga Yap Caong, yet, nevertheless, his testimony related to a time perhaps twenty-
four hours before the execution of the will in question (Exhibit A). Several witnesses testified that
at the time the will was presented to her for her signature, she was of sound mind and memory
and asked for a pen and ink and kept the will in her possession for ten or fifteen minutes and
finally signed it. The lower court found that there was a preponderance of evidence sustaining
the conclusion that Tomasa Elizaga Yap Caong was of sound mind and memory and in the
possession of her faculties at the time she signed this will. In view of the conflict in the testimony
of the witnesses and the finding of the lower court, we do not feel justified in reversing his
conclusions upon that question.

With reference to the third assignment of error, to wit, that the lower court
committed an error in declaring that the signature of Tomasa Elizaga Yap Caong, on her first will
(August 6, 1909, Exhibit 1), is identical with that which appears in the second will (August 11,
1909, Exhibit A), it may be said:
First. That whether or not Tomasa Elizaga Yap Caong executed the will of August 6,
1909 (Exhibit 1), was not the question presented to the court. The question presented was
whether or not she had duly executed the will of August 11, 1909 (Exhibit A).
Second. There appears to be but little doubt that Tomasa Elizaga Yap Caong did
execute the will of August 6, 1909.
Several witnesses testified to that fact. The mere fact, however, that she executed a
former will is no proof that she did not execute a later will. She had perfect right, by will, to
dispose of her property, in accordance with the provisions of law, up to the very last moment her
life. She had a perfect right to change, alter, modify or revoke any and all of her former wills and
to make a new one. Neither will the fact that the new will fails to expressly revoke all former
wills, in any way sustain the charge that she did not make the new will.
Third. In said third assignment of error there is involved in the testament that "The
signature of Tomasa Elizaga YapCaong, in her first will (Exhibit 1) was not identical with that
which appears in her second will (Exhibit A)" the inference that she had not signed the second
will and all the argument of the appellants relating to said third assignment of error is based
upon the alleged fact that Tomasa Elizaga Yap Caong did not sign Exhibit A. Several witnesses
testified that they saw her write the name "Tomasa." One of the witnesses testified that she had
written he full name. We are of the opinion, and we think the law sustains our conclusion, that if
Tomasa Elizaga Yap Caong signed any portion of her name to the will, with the intention to sign
the same, that will amount to a signature. It has been held time and time again that one who
makes a will may sign the same by using a mark, the name having been written by others. If
writing a mark simply upon a will is sufficient indication of the intention of the person to make
and execute a will, then certainly the writing of a portion or all of her name ought to be accepted
as a clear indication of her intention to execute the will. (Re Goods of Savory, 15 Jur., 1042;
Addy vs. Grix, 8 Ves. Jr., 504; Baker vs.Dening, 8 Ad. & El., 94; Long vs. Zook, 13 Penn., 400;
Vernon vs. Kirk, 30 Penn., 218; Cozzen's Will, 61 Penn., 196; Re Goods of Emerson, L. R. 9 Ir., 443;
Main vs. Ryder, 84 Penn., 217.)
We find a very interesting case reported in 131 Pennsylavania State, 220 (6 L. R. A.,
353), and cited by the appellees, which was known as "Knox's Appeal." In this case one Harriett S.
Knox died very suddenly on the 17th of October, 1888, at the residence of her father. After her
death a paper was found in her room, wholly in her handwriting, written with a lead pencil, upon
three sides of an ordinary folded sheet of note paper and bearing the signature simply of
"Herriett." In this paper the deceased attempted to make certain disposition of her property. The
will was presented for probate. The probation was opposed upon the ground that the same did
not contain the signature of the deceased. That was the only question presented to the court,
whether the signature, in the form above indicated, was a sufficient signature to constitute said
paper the last will and testament of Harriett S. Knox. It was admitted that the entire paper was in
the handwriting of the deceased. In deciding that question, Justice Mitchell said:
"The precise case of a signature by the first name only, does
appear to have arisen either in England or the United States; but the principle
on which the decisions already referred to were based, especially those in
regard to signing by initials only, are equally applicable to the present case,
and additional force is given to them by the decisions as to what constitutes a
binding signature to a contract. (Palmer vs. Stephens, 1 Denio, 478;
Sanborne vs. Flager, 9 Allen, 474; Weston vs. Myers, 33 Ill., 424; Salmon Falls,
etc. Co. vs. Goddard, 14 How. (U. S.,), 446.)"
The man who cannot write and who is obliged to make his mark simply therefor, upon
the will, is held to "sign" as effectually as if he had written his initials or his full name. It would
seem to be sufficient, under the law requiring a signature by the person making a will, to make
his mark, to place his initials or all or any part of his name thereon. In the present case we think
the proof shows, by a large preponderance, that Tomasa Elizaga Yap Caong, if she did not sign
her full name, did at least sign he given name "Tomas," and that is sufficient to satisfy the
statute.
With reference to the fourth assignment of error, it may be said that the argument
which has preceded is sufficient to answer it also.
During the trial of the cause protestants made a strong effort to show that Tomasa
Elizaga Yap Caong did not sign her name in the presence of the witnesses and that they did not
sign their names in her presence nor in the presence of each other. Upon that question there is
considerable conflict of proof. An effort was made to show that the will was signed by the
witnesses in one room and by Tomasa in another. A plan of the room or rooms in which the will
was signed was presented as proof and it was shown that there was but one room; that one part
of the room was one or two steps below the floor or the other; that the table on which the
witnesses signed the will was located upon the lower floor of the room. It was also shown that
from the bed in which Tomasa was lying, it was possible for her to see the table on which the
witnesses signed the will. While the rule is absolute that one who makes a will must sign the
same in the presence of the witnesses and that the witnesses must sign in the presence of each
other, as well as in the presence of the one making the will, yet, nevertheless, the actual seeing
of the signatures made is not necessary. It is sufficient if the signatures are made where it is
possible for each of the necessary parties, if they desire to see, may see the signature placed
upon the will.
In case like the present where there is no much conflict in the proof, it is very difficult
for the courts to reach conclusions that are absolutely free from doubt. Great weight must be
given by appellate courts who do not see or hear the witnesses, to the conclusions of the trial
courts who had that opportunity.
Upon a full consideration of the record, we find that a preponderance of the proof
shows that Tomasa Elizaga Yap Caong did execute, freely and voluntarily, while she was in the
right use of all of her faculties, the will dated August 11, 1909 (Exhibit A). Therefore the judgment
of the lower court admitting said will to probate is hereby affirmed with costs.
Arellano, C. J., Torres, Carson, Moreland and Araullo, JJ., concur.
||| (Yap Tua v. Yap Ca Kuan, G.R. No. 6845, September 01, 1914)

FIRST DIVISION
[G.R. No. 13431. November 12, 1919.]
In re will of Ana Abangan. GERTRUDIS ABANGAN, executrix-appellee, vs.
ANASTACIA ABANGAN ET AL.,opponents-appellants.
Filemon Sotto for appellants.
M. Jesus Cuenco for appellee.
SYLLABUS
1. WILLS; ATTESTATION. In a will consisting of two sheets the first of which contains
all the testamentary dispositions and is signed at the bottom by the testator and three witnesses
and the second contains only the attestation clause and is signed also at the bottom by the three
witnesses, it is not necessary that both sheets be further signed on their margins by the testator
and the witnesses, or be paged.
2. ID.; ID; TESTATOR'S SIGNATURE. The testator's signature is not necessary in the
attestation clause because this, as its name implies, appertains only to the witnesses and not to
the testator.
3. ID.; DIALECT IN WHICH WRITTEN; PRESUMPTION. The circumstance appearing in
the will itself that same was executed in the city of Cebu and in the dialect of this locality where
the testatrix was a neighbor is enough, in the absence of any proof to the contrary, to presume
that she knew this dialect in which her will is written.
D E C I S I O N
AVANCEA, J p:
On September 19, 1917, the Court of First Instance of Cebu admitted to probate
Ana Abangan's will executed July, 1916. From this decision the opponents appealed.
Said document, duly probated as Ana Abangan's will, consists of two sheets, the first
of which contains all of the disposition of the testatrix, duly signed at the bottom by Martin
Montalban (in the name and under the direction of the testatrix) and by three witnesses. The
following sheet contains only the attestation clause duly signed at the bottom by the three
instrumental witnesses. Neither of these sheets is signed on the left margin by the testatrix and
the three witnesses, nor numbered by letters; and these omissions, according to appellants'
contention, are defects whereby the probate of the will should have been denied. We are of the
opinion that the will was duly admitted to probate.
In requiring that each and every sheet of the will should also be signed on the left
margin by the testator and three witnesses in the presence of each other, Act No. 2645 (which is
the one applicable in the case) evidently has for its object (referring to the body of the will itself)
to avoid the substitution of any of said sheets, thereby changing the testator's dispositions. But
when these dispositions are wholly written on only one sheet signed at the bottom by the
testator and three witnesses (as the instant case), their signatures on the left margin of said
sheet would be completely purposeless. In requiring this signature on the margin, the statute
took into consideration, undoubtedly, the case of a will written on several sheets and must have
referred to the sheets which the testator and the witnesses do not have to sign at the bottom. A
different interpretation would assume that the statute requires that this sheet, already signed at
the bottom, be signed twice. We cannot attribute to the statute such an intention. As these
signatures must be written by the testator and the witnesses in the presence of each other, it
appears that, if the signatures at the bottom of the sheet guaranties its authenticity, another
signature on its left margin would be unnecessary; and if they do not guaranty, same signatures,
affixed on another part of same sheet, would add nothing. We cannot assume that the statute
regards of such importance the place where the testator and the witnesses must sign on the
sheet that it would consider that their signatures written on the bottom do not guaranty the
authenticity of the sheet but, if repeated on the margin, give sufficient security.
In requiring that each and every page of a will must be numbered correlatively in
letters placed on the upper part of the sheet, it is likewise clear that the object of Act No. 2645 is
to know whether any sheet of the will has been removed. But, when all the dispositive parts of a
will are written .on one sheet only, the object of the statute disappears because the removal of
this single sheet, although unnumbered, cannot be hidden.
What has been said is also applicable to the attestation clause. Wherefore, without
considering whether or not this clause is an essential part of the will, we hold that in the one
accompanying the will in question, the signatures of the testatrix and of the three witnesses on
the margin and the numbering of the pages of the sheet are formalities not required by the
statute. Moreover, referring specially to the signature of the testatrix, we can add that same is
not necessary in the attestation clause because this, as its name implies, appertains only to the
witnesses and not to the testator since the latter does not attest, but executes, the will.
Synthesizing our opinion, we hold that in a will consisting of two sheets the first of
which contains all the testamentary dispositions and is signed at the bottom by the testator and
three witnesses and the second contains only the attestation clause and is signed also at the
bottom by the three witnesses, it is not necessary that both sheets be further signed on their
margins by the testator and the witnesses, or be paged.
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.
So when an interpretation already given assures such ends, any other interpretation whatsoever,
that adds nothing but demands more requisites entirely unnecessary, useless and frustrative of
the testator's last will, must be disregarded.
As another ground for this appeal, it is alleged the records do not show that the
testatrix knew the dialect in which the will is written. But the circumstance appearing in the will
itself that same was executed in the city of Cebu and in the dialect of this locality where the
testatrix was a neighbor is enough, in the absence of any proof to the contrary, to presume that
she knew this dialect in which this will is written.
For the foregoing considerations, the judgment appealed from is hereby affirmed with
costs against the appellants. So ordered.
Arellano, C. J., Torres, Johnson, Araullo, Street and Malcolm, JJ., concur.
||| (In re: Abangan v. Abangan, G.R. No. 13431, November 12, 1919)

FIRST DIVISION
[G.R. No. L-1787. August 27, 1948.]
Testacy of Sixto Lopez. JOSE S. LOPEZ, petitioner-appellee, vs. AGUSTIN
LIBORO, oppositor-appellant.
Tirona, Gutierrez & Adorable for appellant.
Ramon Diokno for appellee.
SYLLABUS
1. WILLS; PAGING; PURPOSE; OMISSION OF PAGE NUMBER SUPPLIED BY OTHER
MEANS OF IDENTIFICATION. The purpose of the law in prescribing the paging of wills is to
guard against fraud, and to afford means of preventing the substitution or of detecting the loss
of any of its pages. (Abangan vs. Abangan, 40 Phil., 476.) The omission to put a page number on a
sheet, if that be necessary, may be supplied by other forms of identification more trustworthy
than the conventional numeral words or characters.
2. ID.; EVIDENCE; WITNESSES, CREDIBILITY OF; CONTRADICTIONS ON INCIDENTS.
contradictions in the testimony of the instrumental witnesses as are set out in the appellant's
brief are incidents, not all of which every one of the witnesses can be supposed to have
perceived, or to recall in the same order in which they occurred. Far from being an evidence of
falsehood, the contradictions constitute an evidence of good faith.
3. ID.; SIGNATURE BY MARK. A statute requiring a will to be "signed" is satisfied if
the signature is made by the testator's mark.
4. ID.; EVIDENCE; ADMISSION OF FURTHER EVIDENCE AFTER PARTY HAS RESTED;
DISCRETION OF COURT. It is within the discretion of the court whether or not to admit further
evidence after the party offering the evidence has rested, and this discretion will not be reviewed
except where it has clearly been abused.
5. ID.; ID.; ADMISSION OF FURTHER EVIDENCE AFTER MOTION FOR NONSUIT OF
DEMURRER TO EVIDENCE; DISCRETION OF COURT. It is within the sound discretion of the
court whether or not it will allow the case to be reopened for the further introduction of
evidence after a motion or request for a nonsuit, or a demurrer to the evidence, and the case
may be reopened after the court has announced its intention as to its ruling on the request,
motion, or demurrer, or has granted it or has denied the same, or after the motion has been
granted, if the order has not been written, or entered upon the minutes or signed.
6. ID.; ID.; EVIDENCE ALLOWABLE AFTER DIRECT PROOFS. After the parties have
produced their respective direct proofs, they are allowed to offer rebutting evidence only, but
the court, for good reasons, in the furtherance of justice, may permit them to offer evidence
upon their original case, and its ruling will not be disturbed in the appellate court where no
abuse of discretion appears. (Siuliong & Co. vs. Ylagan, 43 Phil., 393; U. S. vs. Alviar, 36 Phil., 804.)
So, generally, additional evidence is allowed when it is newly discovered, or where it has been
omitted through inadvertence or mistake, or where the purpose of the evidence is to correct
evidence previously offered.
7. ID.; LANGUAGE; KNOWLEDGE OF TESTATOR NEED NOT BE EXPRESSED IN WILL;
PROOF "ALIUNDE." There is no statutory requirement that the testator's understanding of the
language used in the will be expressed therein. It is a matter that may be established by
proof aliunde.
D E C I S I O N
TUASON, J p:
In the Court of First Instance of Batangas the appellant opposed unsuccessfully the
probate of what purports to be the last will and testament (Exhibit A) of Don Sixto Lopez, who
died at the age of 83 in Balayan, Batangas, on March 3, 1947, almost six months after the
document in question was executed. In the court below, the present appellant specified five
grounds for his opposition, to wit: (1) that the deceased never executed the alleged will; (2) that
his signature appearing in said will was a forgery; (3) that at the time of the execution of the will,
he was wanting in testamentary as well as mental capacity due to advanced age; (4) that, if he
did ever execute said will, it was not executed and attested as required by law, and one of the
alleged instrumental witnesses was incapacitated to act as such; and it was procured by duress,
influence of fear and threats and undue and improper pressure and influence on the part of the
beneficiaries instituted therein, principally the testator's sister, Clemencia Lopez, and the herein
proponent, Jose S. Lopez; and (5) that the signature of the testator was procured by fraud or
trick.
In this instance only one of these objections is reiterated, formulated in these words:
"That the court a quo erred in holding that the document Exhibit "A" was executed in all
particulars as required by law." To this objection is added the alleged error of the court "in
allowing the petitioner to introduce evidence that Exhibit "A" was written in a language known to
the decedent after petitioner rested his case and over the vigorous objection of the oppositor."
The will in question comprises two pages, each of which is written on one side of a
separate sheet. The first sheet is not paged either in letters or in Arabic numerals. This, the
appellant believes, is a fatal defect.
The purpose of the law in prescribing the paging of wills is to guard against fraud, and
to afford means of preventing the substitution or of detecting the loss of any of its pages.
(Abangan vs. Abangan, 40 Phil., 476.) In the present case, the omission to put a page number on
the first sheet, if that be necessary, is supplied by other forms of identification more trustworthy
than the conventional numeral words or characters. The unnumbered page is clearly identified as
the first page by the internal sense of its contents considered in relation to the contents of the
second page. By their meaning and coherence, the first and second lines on the second page are
undeniably a continuation of the last sentence of the testament, before the attestation clause,
which starts at the bottom of the preceding page. Furthermore, the unnumbered page contains
the caption "TESTAMENTO," the invocation of the Almighty, and a recital that the testator was in
full use of his testamentary faculty, all of which, in the logical order of sequence, precede the
direction for the disposition of the maker's property. Again, as page two contains only the two
lines above mentioned, the attestation clause, the mark of the testator and the signatures of the
witnesses, the other sheet can not by any possibility be taken for other than page one.
Abangan vs. Abangan, supra, and Fernandez vs. Vergel de Dios, 46 Phil., 922 are decisive of this
issue.
Although not falling within the purview and scope of the first assignment of error, the
matter of the credibility of the witnesses is assailed under this heading. On the merits we do not
believe that the appellant's contention deserves serious consideration. Such contradictions in the
testimony of the instrumental witnesses as are set out in the appellant's brief are incidents not
all of which every one of the witnesses can be supposed to have perceived, or to recall in the
same order in which they occurred.
"Everyday life and the result of investigations made in the field of
experimental psychology show that the contradictions of witnesses generally
occur in the details of a certain incident, after a long series of questionings,
and far from being an evidence of falsehood constitute a demonstration of
good faith. Inasmuch as not all those who witness an incident are impressed
in like manner, it is but natural that in relating their impressions they should
not agree in the minor details; hence, the contradictions in their testimony."
(People vs. Limbo, 49 Phil., 99.)
The testator affixed his thumbmark to the instrument instead of signing his name. The
reason for this was that the testator was suffering from "partial paralysis." While another in
testator's place might have directed someone else to sign for him, as appellant contends should
have been done, there is nothing curious or suspicious in the fact that the testator chose the use
of mark as the means of authenticating his will. It was a matter of taste or preference. Both ways
are good. A statute requiring a will to be "signed" is satisfied if the signature is made by the
testator's mark. (De Gala vs. Gonzales and Ona, 53 Phil., 108; 28 R. C. L., 117.)
With reference to the second assignment of error, we do not share the opinion that
the trial court committed an abuse of discretion in allowing the appellant to offer evidence to
prove knowledge of Spanish by the testator, the language in which the will is drawn, after the
petitioner had rested his case and after the opponent had moved for dismissal of the petition on
the ground of insufficiency of evidence. It is within the discretion of the court whether or not to
admit further evidence after the party offering the evidence has rested, and this discretion will
not be reviewed except where it has clearly been abused. (64 C. J., 160.) More, it is within the
sound discretion of the court whether or not it will allow the case to be reopened for the further
introduction of evidence after a motion or request for a nonsuit, or a demurrer to the evidence,
and the case may be reopened after the court has announced its intention as to its ruling on the
request, motion, or demurrer, or has granted it or has denied the same, or after the motion has
been granted, if the order has not been written, or entered upon the minutes or signed. (64 C. J.,
164.)
In this jurisdiction this rule has been followed. After the parties have produced their
respective direct proofs, they are allowed to offer rebutting evidence only, but, it has been held,
the court, for good reasons, in the furtherance of justice, may permit them to offer evidence
upon their original case, and its ruling will not be disturbed in the appellate court where no
abuse of discretion appears. (Siuliong & Co. vs. Ylagan, 43 Phil., 393; U. S. vs. Alviar, 36 Phil., 804.)
So, generally, additional evidence is allowed when it is newly discovered, or where it has been
omitted through inadvertence or mistake, or where the purpose of the evidence is to correct
evidence previously offered. (I Moran's Comments on the Rules of Court, 2d ed., 545; 64 C. J.,
160-163.) The omission to present evidence on the testator's knowledge of Spanish had not been
deliberate. It was due to a misapprehension or oversight.

Although alien to the second assignment of error, the appellant impugns the will for
its silence on the testator's understanding of the language used in the testament. There is no
statutory requirement that such knowledge be expressly stated in the will itself. It is a matter
that may be established by proof aliunde. This Court so impliedly ruled in Gonzales vs. Laurel, 46
Phil., 781, in which the probate of a will written in Tagalog was ordered although it did not say
that the testator knew that idiom. In fact, there was not even extraneous proof on the subject
other than the fact that the testator resided in a Tagalog region, from which the court said "a
presumption arises that said Maria Tapia knew the Tagalog dialect."
The order of the lower court ordering the probate of the last will and testament of
Don Sixto Lopez is affirmed, with costs.
Paras, Actg. C.J., Pablo, Perfecto, Bengzon, Briones, and Padilla, JJ., concur.
||| (Lopez v. Liboro, G.R. No. L-1787, August 27, 1948)

FIRST DIVISION
[G.R. No. L-36033. November 5, 1982.]
IN THE MATTER OF THE PETITION FOR THE PROBATE OF THE WILL OF
DOROTEA PEREZ, (deceased): APOLONIO TABOADA, petitioner, vs. HON.
AVELINO S. ROSAL, as Judge of the Court of First Instance of Southern Leyte,
(Branch III, Maasin), respondent.
Erasmo M. Diola for petitioner.
Aurelio S. Rosal in his own behalf.
SYNOPSIS
Petitioner filed a petition for probate of the will of the late Dorotea Perez and presented as evidence
the alleged will and the testimony of one of the subscribing witnesses thereto. However, the trial court
disallowed the will for want of formality in its execution because the will was signed at the bottom of
the page solely by the testatrix and at the left hand margin by three instrumental witnesses.
Respondent judge interpreted Article 805 of the Civil Code to require that, for a notarial will to be
valid, it is not enough that only the testatrix signs at the "end" of the will but all the three subscribing
witnesses must also sign at the same place or at the end, in the presence of the testatrix and of one
another, because the attesting witnesses to the will attest not merely the will itself but also the
signature of the testator. Petitioner's motion for reconsideration and subsequent motion for the
appointment of special administrator were likewise denied.
On certiorari, the Supreme Court held a) that the objects of attestation and subscription were fully
met and satisfied in the present case when the instrumental witnesses signed at the left margin of the
sole page which contains all the testamentary dispositions, especially so when the will was properly
identified by a subscribing witness to be the same will executed by the testatrix; and b) that the failure
of the attestation clause to state the number of pages used in writing the will would have been a fatal
defect were it not for the fact that it is really and actually composed of only two pages duly signed by
the testatrix and her instrumental witnesses.
Petition granted. Assailed orders of probate court set aside. Respondent court is ordered to allow
probate of the will and to conduct further proceedings.
SYLLABUS
1. CIVIL LAW; WILLS AND TESTAMENTS; NOTARIAL WILL; FORMALITIES; ATTESTATION AND
SUBSCRIPTION; DEFINED. Under Article 805 of the Civil Code, the will must be subscribed or signed
at its end by the testator himself or by the testator's name written by another person in his presence,
and by his express direction, and attested and subscribed by three or more credible witnesses in the
presence of the testator and of one another. Attestation consists in witnessing the testator's execution
of the will in order to see and take note mentally that those things are done which the statute requires
for the execution of a will and that the signature of the testator exists as a fact. On the other hand,
subscription is the signing of the witnesses' names upon the same paper for the purpose of
identification of such paper as the will which was executed by the testator (Ragsdale v. Hill, 269 SW 2d
911).
2. ID.; ID.; ID.; ID.; ID.; FULLY COMPLIED WITH IN CASE AT BAR. The objects of attestation and of
subscription were fully met and satisfied in the present case when the instrumental witnesses signed
at the left margin of the sole page which contains all the testamentary dispositions, especially so when
the will was properly identified by subscribing witness Vicente Timkang to be the same will executed
by the testatrix. There was no question of fraud or substitution behind the questioned order.
3. ID.; ID.; ID.; ID.; TREND TOWARDS LIBERAL CONSTRUCTION. While perfection in the drafting of a
will may be desirable, unsubstantial departure from the usual forms should be ignored, especially
where the authenticity of the will is not assailed. (Gonzales vs. Gonzales, 90 Phil. 444, 449) The law is
to be liberally construed, "the underlying and fundamental objective permeating the provision on the
law on wills in this project consists in the liberalization of the manner of their execution with the end
in view of giving the testator more freedom in expressing his last wishes but with sufficient safeguards
and restrictions to prevent the commission of fraud and the exercise of undue and improper pressure
and influence upon the testator. This objective is in accord with the modern tendency in respect to the
formalities in the execution of a will" (Report of the Code Commission, p. 103).
4. ID.; ID.; ID.; ID.; ATTESTATION CLAUSE; FAILURE TO STATE THE NUMBER OF PAGES USED IN
WRITING THE WILL IS FATAL; EXCEPTION; CASE AT BAR. The failure of the will's attestation clause to
state the number of pages used in writing the will would have been a fatal defect were it not for the
fact that, in this case, it is discernible from the entire will that it is really and actually composed of only
two pages duly signed by the testatrix and her instrumental witnesses (See Singson vs. Florentino, et
al. (192 Phil. 161, 1641 and Icasiano vs. Icasiano, [11 SCRA 422, 429].)
D E C I S I O N
GUTIERREZ, JR., J p:
This is a petition for review of the orders issued by the Court of First Instance of Southern Leyte,
Branch III, in Special Proceedings No. R-1713, entitled "In the Matter of the Petition for Probate of the
Will of Dorotea Perez, Deceased; Apolonio Taboada, Petitioner," which denied the probate of the will,
the motion for reconsideration and the motion for appointment of a special administrator.
In the petition for probate filed with the respondent court, the petitioner attached the alleged last will
and testament of the late Dorotea Perez. Written in Cebuano-Visayan dialect, the will consists of two
pages. The first page contains the entire testamentary dispositions and is signed at the end or bottom
of the page by the testatrix alone and at the left hand margin by the three (3) instrumental witnesses.
The second page which contains the attestation clause and the acknowledgment is signed at the end
of the attestation clause by the three 13) attesting witnesses and at the left hand margin by the
testatrix.
Since no opposition was filed after the petitioner's compliance with the requirement of publications,
the trial court commissioned the branch clerk of court to receive the petitioner's evidence.
Accordingly, the petitioner submitted his evidence and presented Vicente Timkang, one of the
subscribing witnesses to the will, who testified on its genuineness and due execution.
The trial court, thru then Presiding Judge Ramon C. Pamatian issued the questioned order denying the
probate of the will of Dorotea Perez for want of a formality in its execution. In the same order, the
petitioner was also required to submit the names of the intestate heirs with their corresponding
addresses so that they could be properly notified and could intervene in the summary settlement of
the estate.
Instead of complying with the order of the trial court, the petitioner filed a manifestation and/or
motion ex parte praying for a thirty-day period within which to deliberate on any step to be taken as a
result of the disallowance of the will. He also asked that the ten-day period required by the court to
submit the names of intestate heirs with their addresses be held in abeyance.
The petitioner filed a motion for reconsideration of the order denying the probate of the will.
However, the motion together with the previous manifestation and/or motion could not be acted
upon by the Honorable Ramon C. Pamatian due to his transfer to his new station at Pasig, Rizal. The
said motions or incidents were still pending resolution when respondent Judge Avelino S. Rosal
assumed the position of presiding judge of the respondent court.
Meanwhile, the petitioner filed a motion for the appointment of special administrator.
Subsequently, the new Judge denied the motion for reconsideration as well as the manifestation
and/or motion filed ex parte. In the same order of denial, the motion for the appointment of special
administrator was likewise denied because of the petitioner's failure to comply with the order
requiring him to submit the names of the intestate heirs and their addresses.
The petitioner decided to file the present petition.
For the validity of a formal notarial will, does Article 805 of the Civil Code require that the testatrix and
all the three instrumental and attesting witnesses sign at the end of the will and in the presence of the
testatrix and of one another?
Article 805 of the Civil Code provides:
"Every will, other than a holographic will, must be subscribed at the end
thereof by the testator himself or by the testator's name written by some
other person in his presence, and by his express direction, and attested and
subscribed by three or more credible witnesses in the presence of the
testator and of one another.
"The testator or the person requested by him to write his name and the
instrumental witnesses of the will, shall also sign, as aforesaid, each and every
page thereof, except the last, on the left margin, and all the pages shall be
numbered correlatively in letters placed on the upper part of each page.
"The attestation shall state the number of pages used upon which the will is
written, and the fact that the testator signed the will and every page thereof,
or caused some other person to write his name, under his express direction,
in the presence of the instrumental witnesses, and that the latter witnessed
and signed the with and the pages thereof in the presence of the testator and
of one another.
"If the attestation clause is in a language not known to the witnesses, it shall
be interpreted to them."
The respondent Judge interprets the above-quoted provision of law to require that, for a notarial will
to be valid, it is not enough that only the testatrix signs at the "end" but all the three subscribing
witnesses must also sign at the same place or at the end, in the presence of the testatrix and of one
another because the attesting witnesses to a will attest not merely the will itself but also the signature
of the testator. It is not sufficient compliance to sign the page, where the end of the will is found, at
the left hand margin of that page.

On the other hand, the petitioner maintains that Article 805 of the Civil Code does not make it a
condition precedent or a matter of absolute necessity for the extrinsic validity of the will that the
signatures of the subscribing witnesses should be specifically located at the end of the will after the
signature of the testatrix. He contends that it would be absurd that the legislature intended to place so
heavy an import on the space or particular location where the signatures are to be found as long as
this space or particular location wherein the signatures are found is consistent with good faith and the
honest frailties of human nature.
We find the petition meritorious.
Undoubtedly, under Article 805 of the Civil Code, the will must be subscribed or signed at its end by
the testator himself or by the testator's name written by another person in his presence, and by his
express direction, and attested and subscribed by three or more credible witnesses in the presence of
the testator and of one another.
It must be noted that the law uses the terms attested and subscribed. Attestation consists in
witnessing the testator's execution of the will in order to see and take note mentally that those things
are done which the statute requires for the execution of a will and that the signature of the testator
exists as a fact. On the other hand, subscription is the signing of the witnesses' names upon the same
paper for the purpose of identification of such paper as the will which was executed by the testator.
(Ragsdale v. Hill, 269 SW 2d 911).
Insofar as the requirement of subscription is concerned, it is our considered view that the will in this
case was subscribed in a manner which fully satisfies the purpose of identification.
The signatures of the instrumental witnesses on the left margin of the first page of the will attested
not only to the genuineness of the signature of the testatrix but also the due execution of the will as
embodied in the attestation clause.
While perfection in the drafting of a will may be desirable, unsubstantial departure from the usual
forms should be ignored, especially where the authenticity of the will is not assailed.
(Gonzales v. Gonzales, 90 Phil. 444, 449).
The law is to be liberally construed, "the underlying and fundamental objective permeating the
provisions on the law on wills in this project consists in the liberalization of the manner of their
execution with the end in view of giving the testator more freedom in expressing his last wishes but
with sufficient safeguards and restrictions to prevent the commission of fraud and the exercise of
undue and improper pressure and influence upon the testator. This objective is in accord with the
modern tendency in respect to the formalities in the execution of a will" (Report of the Code
Commission, p. 103).
Parenthetically, Judge Ramon C. Pamatian stated in his questioned order that were it not for the
defect in the place of signatures of the witnesses, he would have found the testimony sufficient to
establish the validity of the will.
The objects of attestation and of subscription were fully met and satisfied in the present case when
the instrumental witnesses signed at the left margin of the sole page which contains all the
testamentary dispositions, especially so when the will was properly identified by subscribing witness
Vicente Timkang to be the same will executed by the testatrix. There was no question of fraud or
substitution behind the questioned order. prLL
We have examined the will in question and noticed that the attestation clause failed to state the
number of pages used in writing the will. This would have been a fatal defect were it not for the fact
that, in this case, it is discernible from the entire will that it is really and actually composed of only two
pages duly signed by the testatrix and her instrumental witnesses. As earlier stated, the first page
which contains the entirety of the testamentary dispositions is signed by the testatrix at the end or at
the bottom while the instrumental witnesses signed at the left margin. The other page which is
marked as "Pagina dos" comprises the attestation clause and the acknowledgment. The
acknowledgment itself states that "This Last Will and Testament consists of two pages including this
page."
In Singson v. Florentino, et al. (92 Phil. 161, 164), this Court made the following observations with
respect to the purpose of the requirement that the attestation clause must state the number of pages
used:
"The law referred to is Article 618 of the Code of Civil Procedure, as amended
by Act No. 2645, which requires that the attestation clause shall state the
number of pages or sheets upon which the will is written, which requirement
has been held to be mandatory as an effective safeguard against the
possibility of interpolation or omission of some of the pages of the will to the
prejudice of the heirs to whom the property is intended to be bequeathed (In
re will of Andrada, 42 Phil. 180; Uy Coque vs. Navas L. Sioca, 43 Phil. 405;
Gumban vs. Gorecho, 50 Phil. 30; Quinto vs. Morata, 54 Phil. 481;
Echevarria vs. Sarmiento, 66 Phil. 611). The ratio decidendi of these cases
seems to be that the attestation clause must contain a statement of the
number of sheets or passes composing the will and that if this is missing or is
omitted, it will have the effect of invalidating the will if the deficiency cannot
be supplied, not by evidence aliunde, but by a consideration or examination
of the will itself. But here the situation is different. While the attestation
clause does not state the number of sheets or pages upon which the will is
written, however, the last part of the body of the will contains a statement
that it is composed of eight pages, which circumstance in our opinion takes
this case out of the rigid rule of construction and places it within the realm of
similar cases where a broad and more liberal view has been adopted to
prevent the will of the testator from being defeated by purely technical
considerations."
Icasiano v. Icasiano (11 SCRA 422, 429) has the following ruling which applies a similar liberal
approach: Cdpr
" . . . Impossibility of substitution of this page is assured not only (sic) the fact
that the testatrix and two other witnesses, did sign the defective page, but
also by its bearing the coincident imprint of the seal of the notary public
before whom the testament was ratified by testatrix and all three witnesses.
The law should not be so strictly and literally interpreted as to penalize the
testatrix on account of the inadvertence of a single witness over whose
conduct she had no control, where the purpose of the law to guarantee the
identity of the testament and its component pages is sufficiently attained, no
intentional or deliberate deviation existed, and the evidence on record attest
to the full observance of the statutory requisites. Otherwise, as stated in Vda.
de Gil. vs. Murciano, 49 Off. Gaz 1459, at 1479 (decision on reconsideration)
'witnesses may sabotage the will by muddling or bungling it or the attestation
clause.'"
WHEREFORE, the present petition is hereby granted. The orders of the respondent Court which denied
the probate of the will, the motion for reconsideration of the denial of probate, and the motion for
appointment of a special administrator are set aside. The respondent court is ordered to allow the
probate of the will and to conduct further proceedings in accordance with this decision. No
pronouncement of costs.
SO ORDERED.
Melencio-Herrera (Acting Chairman), Plana, Vasquez and Relova, JJ., concur.
Teehankee (Chairman), J., is on leave.
||| (In Re: Taboada v. Rosal, G.R. No. L-36033, November 05, 1982)

EN BANC
[G.R. No. L-5971. February 27, 1911.]
BEATRIZ NERA, ET AL., plaintiffs-appellees, vs. NARCISA
RIMANDO, defendant-appellant.
Valerio Fontanilla and Andres Asprer for appellant.
Anacleto Diaz for appellees.
SYLLABUS
1. EXECUTION OF WILLS; POSITION OF TESTATOR AND WITNESS WHEN WILL IS
SUBSCRIBED. The position of testator and of the witnesses to a will, at the moment of the
subscription by each, must be such that they may see each other sign if they choose to do so.
2. ID.; ID.; SIGNING IN THE PRESENCE OF EACH OTHER. The question whether the
testator and the subscribing witnesses to an alleged will sign the instrument in the presence of
each other does not depend upon proof of the fact that their eyes were actually cast upon the
paper at the moment of its subscription by each of them, but whether at that moment existing
conditions and the position of the parties, with relation to each other, were such that by merely
casting their eyes in the proper direction they could have seen each other sign.
3. ID.; ID.; ID.; ONE WITNESS IN OUTER ROOM WHEN WH.L IS SIGNED. If one
subscribing witness to a will is shown to have been in an outer room at the time when the
testator and the other witnesses attach their signatures to the instrument in an inner room, the
will would be held invalid the attaching of the said signatures, under such circumstances, not
being done "in the presence" of the witness in the outer room.
D E C I S I O N
CARSON, J p:
The only question raised by the evidence in this case as to the due execution of the
instrument propounded as a will in the court below, is whether one of the subscribing witnesses
was present in the small room where it was executed at the time when the testator and the other
subscribing witnesses attached their signatures; or whether at that time he was outside, some
eight or ten feet away, in a large room connecting with the smaller room by a doorway, across
which was hung a curtain which made it impossible for one in the outside room to see the
testator and the other subscribing witnesses in the act of attaching their signatures to the
instrument.
A majority of the members of the court is of opinion that this subscribing witness was
in the small room with the testator and the other subscribing witnesses at the time when they
attached their signatures to the instrument, and this finding, of course, disposes of the appeal
and necessitates the affirmance of the decree admitting the document to probate as the last will
and testament of the deceased.
The trial judge does not appear to have considered the determination of this question
of fact of vital importance in the determination of this case, as he was of opinion that under the
doctrine laid down in the case of Jaboneta vs. Gustilo (5 Phil. Rep., 541) the alleged fact that one
of the subscribing witnesses was in the outer room when the testator and the other describing
witnesses signed the instrument in the inner room, had it been proven, would not be sufficient in
itself to invalidate the execution of the will. But we are unanimously of opinion that had this
subscribing witness been proven to have been in the outer room at the time when the testator
and the other subscribing witnesses attached their signatures to the instrument in the inner
room, it would have been invalid as a will, the attaching of those signatures under circumstances
not being done "in the presence" of the witness in the outer room. This because the line of vision
from this witness to the testator and the other subscribing witnesses would necessarily have been
impeded by the curtain separating the inner from the outer one "at the moment of inscription of
each signature."
In the case just cited, on which the trial court relied, we held that:
"The true test of presence of the testator and the witnesses in the
execution of a will is not whether they actually saw each other sign, but
whether they might have been seen each other sign, had they chosen to do
so, considering their mental and physical condition and position with relation
to each other at the moment of inscription of each signature."
But it is especially to be noted that the position of the parties with relation to each
other at the moment of the subscription of each signature, must be such that they may see each
other sign if they choose to do so. This, of course, does not mean that the testator and the
subscribing witnesses may be held to have executed the instrument in the presence of each other
if it appears that they would not have been able to see each other sign at that moment, without
changing their relative positions or existing conditions. The evidence in the case relied upon by
the trial judge discloses that "at the moment when the witness Javellana signed the document he
was actually and physically present and in such position with relation to Jaboneta that he could
see everything that took place by merely casting his eyes in the proper direction and without any
physical obstruction to prevent his doing so." And the decision merely laid down the doctrine that
the question whether the testator and the subscribing witnesses to an alleged will sign the
instrument in the presence of each other does not depend upon proof of the fact that their eyes
were actually cast upon the paper at the moment of its subscription by each of them, but that at
that moment existing conditions and their position with relation to each other were such that by
merely casting the eyes in the proper direction they could have seen each other sign. To extend
the doctrine further would open the door to the possibility of all manner of fraud, substitution,
and the like, and would defeat the purpose for which this particular condition is prescribed in the
code as one of the requisites in the execution of a will.
The decree entered by the court below admitting the instrument propounded therein
to probate as the last will and testament of Pedro Rimando, deceased, is affirmed with costs of
this instance against the appellant.
Arellano, C.J., Mapa, Moreland and Trent, JJ., concur.
||| (Nera v. Rimando, G.R. No. L-5971, February 27, 1911)

FIRST DIVISION
[G.R. No. 124371. November 23, 2000.]
PAULA T. LLORENTE, petitioner, vs. COURT OF APPEALS and ALICIA F.
LLORENTE, respondents.
E.A. Dacanay for petitioner.
Pardalis, Navarro & Sales for private respondents.
SYNOPSIS
The deceased Lorenzo N. Llorente was an enlisted serviceman of the United States Navy from 1927 to
1957 and a naturalized American citizen. On February 22, 1937, Lorenzo married petitioner Paula
Llorente. Before the outbreak of the Pacific War, Lorenzo departed for the United States and Paula
stayed in the conjugal home in barrio Antipolo, Nabua, Camarines Sur. When Lorenzo returned to the
Philippines to visit his wife in 1945, he discovered that his wife Paula was pregnant and was "living in"
and having an adulterous relationship with his brother, Ceferino Llorente. Lorenzo refused to forgive
Paula and live with her. Lorenzo returned to the United States and filed for divorce with the Superior
Court of the State of California in and for the County of San Diego. Paula was represented by counsel,
John Riley, and actively participated in the proceedings. The Superior Court of the State of California,
for the County of San Diego found all factual allegations to be true and issued an interlocutory
judgment of divorce. The divorce decree became final in 1952. On January 16, 1958, Lorenzo married
Alicia F. Llorente in Manila. Apparently, Alicia had no knowledge of the first marriage even if they
resided in the same town as Paula, who did not oppose the marriage or cohabitation. From 1958 to
1985, Lorenzo and Alicia lived together as husband and wife and produced three children, Raul, Luz
and Beverly, all surnamed Llorente. On March 13, 1981, Lorenzo executed a Last Will and Testament.
In the will, Lorenzo bequeathed all his property to Alicia and their three children. On December 14,
1983, Lorenzo filed with the Regional Trial Court, Iriga, Camarines Sur, a petition for the probate and
allowance of his last will and testament wherein Lorenzo moved that Alicia be appointed Special
Administratrix of his estate. The trial court admitted the will to probate. On June 11, 1985, before the
proceedings could be terminated, Lorenzo died. Paula filed with the same court a petition for letters of
administration over Lorenzo's estate in her favor. Alicia also filed in the testate proceeding a petition
for the issuance of letters testamentary. The trial court denied Alicia's petition and ruled that the
divorce decree granted to the late Lorenzo Llorente was void and inapplicable in the Philippines,
therefore, her marriage to Lorenzo was likewise void. The trial court appointed Paula Llorente as legal
administrator of the estate of the deceased, Lorenzo Llorente. Respondent Alicia filed with the trial
court a motion for reconsideration, but was denied. Alicia appealed to the Court of Appeals. The
appellate court promulgated its decision, affirming with modification the decision of the trial court.
The trial court declared Alicia as co-owner of whatever properties she and the deceased Lorenzo may
have acquired during the twenty-five (25) years of cohabitation. Petitioner Paula moved for
reconsideration, but was denied for lack of merit. Hence, the present petition.
The Supreme Court reversed and set aside the ruling of the trial court and recognized as valid and as a
matter of comity the decree of divorce granted in favor of the deceased Lorenzo N. Llorente by the
Superior Court of the State of California in and for the County of San Diego, made final on December 4,
1952. According to the Court, the "national law" indicated in Article 16 of the Civil Code cannot
possibly apply to the general American law. There is no such law governing the validity of
testamentary provisions in the United States. Each State of the union has its own law applicable to its
citizens and in force only within the State. It can, therefore, refer to no other than the law of the State
of which the decedent was a resident and there was also no showing that the application of
the renvoi doctrine was called for or required by New York State law. The Court also said that the clear
intent of Lorenzo to bequeath his property to his second wife and children by her was glaringly shown
in the will he executed and the Court did not wish to frustrate Lorenzo's wishes, since he was a
foreigner, not covered by Philippine laws on family rights and duties, status, condition and legal
capacity. The Court remanded the cases to the court of origin for determination of the intrinsic validity
of Lorenzo N. Llorente's will and determination of the parties' successional rights allowing proof of
foreign law.
SYLLABUS
1. CIVIL LAW; PRIVATE INTERNATIONAL LAW; RENVOI DOCTRINE; NOT APPLICABLE IN CASE AT BAR.
True, foreign laws do not prove themselves in our jurisdiction and our courts are not authorized to
take judicial notice of them. Like any other fact, they must be alleged and proved. While the substance
of the foreign law was pleaded, the Court of Appeals did not admit the foreign law. The Court of
Appeals and the trial court called to the fore the renvoi doctrine, where the case was "referred back"
to the law of the decedent's domicile, in this case, Philippine law. We note that while the trial court
stated that the law of New York was not sufficiently proven, in the same breath it made the
categorical, albeit equally unproven statement that "American law follows the 'domiciliary theory,
hence, Philippine law applies when determining the validity of Lorenzo's will. First, there is no such
thing as one American law. The "national law" indicated in Article 16 of the Civil Code cannot possibly
apply to general American law. There is no such law governing the validity of testamentary provisions
in the United States. Each State of the union has its own law applicable to its citizens and in force only
within the State. It can therefore refer to no other than the law of the State of which the decedent was
a resident. Second, there is no showing that the application of the renvoi doctrine is called for or
required by New York State law. The trial court held that the will was intrinsically invalid since it
contained dispositions in favor of Alice, who in the trial court's opinion was a mere paramour. The trial
court threw the will out, leaving Alice, and her two children, Raul and Luz, with nothing. The Court of
Appeals also disregarded the will. It declared Alice entitled to one half () of whatever property she
and Lorenzo acquired during their cohabitation, applying Article 144 of the Civil Code of the
Philippines. The hasty application of Philippine law and the complete disregard of the will, already
probated as duly executed in accordance with the formalities of Philippine law, is fatal, especially in
light of the factual and legal circumstances here obtaining.
2. ID.; ID.; VALIDITY OF FOREIGN DIVORCE; DIVORCE OBTAINED BY PETITIONER'S HUSBAND ABROAD
VALID AND RECOGNIZED BY PHILIPPINE LAWS AS A MATTER OF COMITY; SETTLED DOCTRINES.
In Van Dorn v. Romillo, Jr., we held that owing to the nationality principle embodied in Article 15 of the
Civil Code, only Philippine nationals are covered by the policy against absolute divorces, the same
being considered contrary to our concept of public policy and morality. In the same case, the Court
ruled that aliens may obtain divorces abroad, provided they are valid according to their national law.
Citing this landmark case, the Court held in Quita v. Court of Appeals, that once proven that
respondent was no longer a Filipino citizen when he obtained the divorce from petitioner, the ruling in
Van Dorn would become applicable and petitioner could "very well lose her right to inherit" from him.
In Pilapil v. Ibay-Somera, we recognized the divorce obtained by the respondent in his country, the
Federal Republic of Germany. There, we stated that divorce and its legal effects may be recognized in
the Philippines insofar as respondent is concerned in view of the nationality principle in our civil law on
the status of persons. For failing to apply these doctrines, the decision of the Court of Appeals must be
reversed. We hold that the divorce obtained by Lorenzo H. Llorente from his first wife Paula was valid
and recognized in this jurisdiction as a matter of comity. Now, the effects of this divorce (as to the
succession to the estate of the decedent) are matters best left to the determination of the trial court.
3. ID.; ID.; FORMALITIES OF WILL EXECUTED BY FOREIGN NATIONALS SHALL BE GOVERNED BY
PHILIPPINE LAW; DETERMINATION OF SUCCESSIONAL RIGHTS BEST PROVED BY FOREIGN LAW WHICH
MUST BE DULY PLEADED AND PROVED; CASE AT BAR. The clear intent of Lorenzo to bequeath his
property to his second wife and children by her is glaringly shown in the will he executed. We do not
wish to frustrate his wishes, since he was a foreigner, not covered by our laws on "family rights and
duties, status, condition and legal capacity." Whether the will is intrinsically valid and who shall inherit
from Lorenzo are issues best proved by foreign law which must be pleaded and proved. Whether the
will was executed in accordance with the formalities required is answered by referring to Philippine
law. In fact, the will was duly probated. As a guide however, the trial court should note that whatever
public policy or good customs may be involved in our system of legitimes, Congress did not intend to
extend the same to the succession of foreign nationals. Congress specifically left the amount of
successional rights to the decedent's national law.
D E C I S I O N
PARDO, J p:
The Case
The case raises a conflict of laws issue.
What is before us is an appeal from the decision of the Court of Appeals 1 modifying that of the
Regional Trial Court, Camarines Sur, Branch 35, Iriga City 2 declaring respondent Alicia F. Llorente
(hereinafter referred to as "Alicia"), as co-owners of whatever property she and the deceased Lorenzo
N. Llorente (hereinafter referred to as "Lorenzo") may have acquired during the twenty-five (25) years
that they lived together as husband and wife.

The Facts
The deceased Lorenzo N. Llorente was an enlisted serviceman of the United States Navy from March
10, 1927 to September 30, 1957. 3
On February 22, 1937, Lorenzo and petitioner Paula Llorente (hereinafter referred to as "Paula") were
married before a parish priest, Roman Catholic Church, in Nabua, Camarines Sur. 4
Before the outbreak of the Pacific War, Lorenzo departed for the United States and Paula stayed in the
conjugal home in barrio Antipolo, Nabua, Camarines Sur. 5
On November 30, 1943, Lorenzo was admitted to United States citizenship and Certificate of
Naturalization No. 5579816 was issued in his favor by the United States District Court, Southern
District of New York. 6
Upon the liberation of the Philippines by the American Forces in 1945, Lorenzo was granted an
accrued leave by the U.S. Navy, to visit his wife and he visited the Philippines. 7 He discovered that his
wife Paula was pregnant and was "living in" and having an adulterous relationship with his brother,
Ceferino Llorente. 8
On December 4, 1945, Paula gave birth to a boy registered in the Office of the Registrar of Nabua as
"Crisologo Llorente," with the certificate stating that the child was not legitimate and the line for the
father's name was left blank. 9
Lorenzo refused to forgive Paula and live with her. In fact, on February 2, 1946, the couple drew a
written agreement to the effect that (1) all the family allowances allotted by the United States Navy as
part of Lorenzo's salary and all other obligations for Paula's daily maintenance and support would be
suspended; (2) they would dissolve their marital union in accordance with judicial proceedings; (3)
they would make a separate agreement regarding their conjugal property acquired during their marital
life; and (4) Lorenzo would not prosecute Paula for her adulterous act since she voluntarily admitted
her fault and agreed to separate from Lorenzo peacefully. The agreement was signed by both Lorenzo
and Paula and was witnessed by Paula's father and stepmother. The agreement was notarized by
Notary Public Pedro Osabel. 10
Lorenzo returned to the United States and on November 16, 1951 filed for divorce with the Superior
Court of the State of California in and for the County of San Diego. Paula was represented by counsel,
John Riley, and actively participated in the proceedings. On November 27, 1951, the Superior Court of
the State of California, for the County of San Diego found all factual allegations to be true and issued
an interlocutory judgment of divorce. 11
On December 4, 1952, the divorce decree became final. 12
In the meantime, Lorenzo returned to the Philippines. CADHcI
On January 16, 1958, Lorenzo married Alicia F. Llorente in Manila. 13 Apparently, Alicia had no
knowledge of the first marriage even if they resided in the same town as Paula, who did not oppose
the marriage or cohabitation. 14
From 1958 to 1985, Lorenzo and Alicia lived together as husband and wife. 15 Their twenty-five (25)
year union produced three children, Raul, Luz and Beverly, all surnamed Llorente. 16
On March 13, 1981, Lorenzo executed a Last Will and Testament. The will was notarized by Notary
Public Salvador M. Occiano, duly signed by Lorenzo with attesting witnesses Francisco Hugo, Francisco
Neibres and Tito Trajano. In the will, Lorenzo bequeathed all his property to Alicia and their three
children, to wit:
"(1) I give and bequeath to my wife ALICIA R. FORTUNO exclusively my
residential house and lot, located at San Francisco, Nabua, Camarines Sur,
Philippines, including ALL the personal properties and other movables or
belongings that may be found or existing therein;
"(2) I give and bequeath exclusively to my wife Alicia R. Fortuno and to my
children, Raul F. Llorente, Luz F. Llorente and Beverly F. Llorente, in equal
shares, all my real properties whatsoever and wheresoever located,
specifically my real properties located at Barangay Aro-Aldao, Nabua,
Camarines Sur; Barangay Paloyon, Nabua, Camarines Sur; Barangay Baras,
Sitio Puga, Nabua, Camarines Sur; and Barangay Paloyon, Sitio Nalilidong,
Nabua, Camarines Sur;
"(3) I likewise give and bequeath exclusively unto my wife Alicia R. Fortuno
and unto my children, Raul F. Llorente, Luz F. Llorente and Beverly F. Llorente,
in equal shares, my real properties located in Quezon City Philippines, and
covered by Transfer Certificate of Title No. 188652; and my lands in Antipolo,
Rizal, Philippines, covered by Transfer Certificate of Title Nos. 124196 and
165188, both of the Registry of Deeds of the province of Rizal, Philippines;
"(4) That their respective shares in the above-mentioned properties, whether
real or personal properties, shall not be disposed of, ceded, sold and
conveyed to any other persons, but could only be sold, ceded, conveyed and
disposed of by and among themselves;
"(5) I designate my wife ALICIA R. FORTUNO to be the sole executor of this my
Last Will and Testament, and in her default or incapacity of the latter to act,
any of my children in the order of age, if of age;
"(6) I hereby direct that the executor named herein or her lawful substitute
should served (sic) without bond;
"(7) I hereby revoke any and all my other wills, codicils, or testamentary
dispositions heretofore executed, signed, or published, by me;
"(8) It is my final wish and desire that if I die, no relatives of mine in any
degree in the Llorente's Side should ever bother and disturb in any manner
whatsoever my wife Alicia R. Fortunato and my children with respect to any
real or personal properties I gave and bequeathed respectively to each one of
them by virtue of this Last Will and Testament."17
On December 14, 1983, Lorenzo filed with the Regional Trial Court, Iriga, Camarines Sur, a petition for
the probate and allowance of his last will and testament wherein Lorenzo moved that Alicia be
appointed Special Administratrix of his estate. 18
On January 18, 1984, the trial court denied the motion for the reason that the testator Lorenzo was
still alive. 19
On January 24, 1984, finding that the will was duly executed, the trial court admitted the will to
probate. 20
On June 11, 1985, before the proceedings could be terminated, Lorenzo died. 21
On September 4, 1985, Paula filed with the same court a petition 22 for letters of administration over
Lorenzo's estate in her favor. Paula contended (1) that she was Lorenzo's surviving spouse, (2) that the
various property were acquired during their marriage, (3) that Lorenzo's will disposed of all his
property in favor of Alicia and her children, encroaching on her legitime and 1/2 share in the conjugal
property. 23
On December 13, 1985, Alicia filed in the testate proceeding (Sp. Proc. No. IR-755), a petition for the
issuance of letters testamentary. 24
On October 14, 1985, without terminating the testate proceedings, the trial court gave due course to
Paula's petition in Sp. Proc. No. IR-888. 25
On November 6, 13 and 20, 1985, the order was published in the newspaper "Bicol Star". 26
On May 18, 1987, the Regional Trial Court issued a joint decision, thus: ISaCTE
"Wherefore, considering that this court has so found that the divorce decree
granted to the late Lorenzo Llorente is void and inapplicable in the
Philippines, therefore the marriage he contracted with Alicia Fortunato on
January 16, 1958 at Manila is likewise void. This being so the petition of Alicia
F. Llorente for the issuance of letters testamentary is denied. Likewise, she is
not entitled to receive any share from the estate even if the will especially
said so her relationship with Lorenzo having gained the status of paramour
which is under Art. 739 (1).
"On the other hand, the court finds the petition of Paula Titular Llorente,
meritorious, and so declares the intrinsic disposition of the will of Lorenzo
Llorente dated March 13, 1981 as void and declares her entitled as conjugal
partner and entitled to one-half of their conjugal properties, and as primary
compulsory heir, Paula T. Llorente is also entitled to one-third of the estate
and then one-third should go to the illegitimate children, Raul, Luz and
Beverly, all surname (sic) Llorente, for them to partition in equal shares and
also entitled to the remaining free portion in equal shares.
"Petitioner, Paula Llorente is appointed legal administrator of the estate of
the deceased, Lorenzo Llorente. As such let the corresponding letters of
administration issue in her favor upon her filing a bond in the amount (sic) of
P100,000.00 conditioned for her to make a return to the court within three
(3) months a true and complete inventory of all goods, chattels, rights, and
credits, and estate which shall at any time come to her possession or to the
possession of any other person for her, and from the proceeds to pay and
discharge all debts, legacies and charges on the same, or such dividends
thereon as shall be decreed or required by this court; to render a true and
just account of her administration to the court within one (1) year, and at any
other time when required by the court and to perform all orders of this court
by her to be performed.
"On the other matters prayed for in respective petitions for want of evidence
could not be granted.
"SO ORDERED." 27
In time, Alicia filed with the trial court a motion for reconsideration of the aforequoted decision. 28
On September 14, 1987, the trial court denied Alicia's motion for reconsideration but modified its
earlier decision, stating that Raul and Luz Llorente are not children "legitimate or otherwise" of
Lorenzo since they were not legally adopted by him. 29 Amending its decision of May 18, 1987, the
trial court declared Beverly Llorente as the only illegitimate child of Lorenzo, entitling her to one-third
(1/3) of the estate and one-third (1/3) of the free portion of the estate. 30

On September 28, 1987, respondent appealed to the Court of Appeals. 31
On July 31, 1995, the Court of Appeals promulgated its decision, affirming with modification the
decision of the trial court in this wise:
"WHEREFORE, the decision appealed from is hereby AFFIRMED with the
MODIFICATION that Alicia is declared as co-owner of whatever properties she
and the deceased may have acquired during the twenty-five (25) years of
cohabitation.
"SO ORDERED." 32
On August 25, 1995, petitioner filed with the Court of Appeals a motion for reconsideration of the
decision. 33
On March 21, 1996, the Court of Appeals, 34 denied the motion for lack of merit.
Hence, this petition. 35
The Issue
Stripping the petition of its legalese and sorting through the various arguments raised, 36 the issue is
simple. Who are entitled to inherit from the late Lorenzo N. Llorente?
We do not agree with the decision of the Court of Appeals. We remand the case to the trial court for
ruling on the intrinsic validity of the will of the deceased.
The Applicable Law
The fact that the late Lorenzo N. Llorente became an American citizen long before and at the time of:
(1) his divorce from Paula; (2) marriage to Alicia; (3) execution of his will; and (4) death, is duly
established, admitted and undisputed.
Thus, as a rule, issues arising from these incidents are necessarily governed by foreign law.
The Civil Code clearly provides:
"ARTICLE 15. Laws relating to family rights and duties, or to the status,
condition and legal capacity of persons arebinding upon citizens of the
Philippines, even though living abroad. SCcHIE
"ARTICLE 16. Real property as well as personal property is subject to the law
of the country where it is situated.
"However, intestate and testamentary succession, both with respect to the
order of succession and to the amount of successional rights and to the
intrinsic validity of testamentary provisions, shall be regulated by the national
law of the person whose succession is under consideration, whatever may be
the nature of the property and regardless of the country wherein said
property may be found." (italics ours)
True, foreign laws do not prove themselves in our jurisdiction and our courts are not authorized to
take judicial notice of them. Like any other fact, they must be alleged and proved. 37
While the substance of the foreign law was pleaded, the Court of Appeals did not admit the foreign
law. The Court of Appeals and the trial court called to the fore the renvoi doctrine, where the case was
"referred back" to the law of the decedent's domicile, in this case, Philippine law.
We note that while the trial court stated that the law of New York was not sufficiently proven, in the
same breath it made the categorical, albeit equally unproven statement that "American law" follows
the 'domiciliary theory' hence, Philippine law applies when determining the validity of Lorenzo's
will. 38
First, there is no such thing as one American law. The "national law" indicated in Article 16 of the Civil
Code cannot possibly apply to general American law. There is no such law governing the validity of
testamentary provisions in the United States. Each State of the union has its own law applicable to its
citizens and in force only within the State. It can therefore refer to no other than the law of the State
of which the decedent was a resident. 39 Second, there is no showing that the application of
the renvoi doctrine is called for or required by New York State law.
The trial court held that the will was intrinsically invalid since it contained dispositions in favor of Alice,
who in the trial court's opinion was a mere paramour. The trial court threw the will out, leaving Alice,
and her two children, Raul and Luz, with nothing.
The Court of Appeals also disregarded the will. It declared Alice entitled to one half (1/2) of whatever
property she and Lorenzo acquired during their cohabitation, applying Article 144 of the Civil Code of
the Philippines.
The hasty application of Philippine law and the complete disregard of the will, already probated as
duly executed in accordance with the formalities of Philippine law, is fatal, especially in light of the
factual and legal circumstances here obtaining.
Validity of the Foreign Divorce
In Van Dorn v. Romillo, Jr. 40 we held that owing to the nationality principle embodied in Article 15 of
the Civil Code, only Philippine nationals are covered by the policy against absolute divorces, the same
being considered contrary to our concept of public policy and morality. In the same case, the Court
ruled that aliens may obtain divorces abroad, provided they are valid according to their national law.
Citing this landmark case, the Court held in Quita v. Court of Appeals, 41 that once proven that
respondent was no longer a Filipino citizen when he obtained the divorce from petitioner, the ruling in
Van Dorn would become applicable and petitioner could "very well lose her right to inherit" from him.
In Pilapil v. Ibay-Somera, 42 we recognized the divorce obtained by the respondent in his country, the
Federal Republic of Germany. There, we stated that divorce and its legal effects may be recognized in
the Philippines insofar as respondent is concerned in view of the nationality principle in our civil law on
the status of persons.
For failing to apply these doctrines, the decision of the Court of Appeals must be reversed. 43 We hold
that the divorce obtained by Lorenzo H. Llorente from his first wife Paula was valid and recognized in
this jurisdiction as a matter of comity. Now, the effects of this divorce (as to the succession to the
estate of the decedent) are matters best left to the determination of the trial court.
Validity of the Will
The Civil Code provides:
"ARTICLE 17. The forms and solemnities of contracts, wills, and other public
instruments shall be governed by the laws of the country in which they are
executed.
"When the acts referred to are executed before the diplomatic or consular
officials of the Republic of the Philippines in a foreign country, the solemnities
established by Philippine laws shall be observed in their execution." (italics
ours)
The clear intent of Lorenzo to bequeath his property to his second wife and children by her is glaringly
shown in the will he executed. We do not wish to frustrate his wishes, since he was a foreigner, not
covered by our laws on "family rights and duties, status, condition and legal capacity." 44
Whether the will is intrinsically valid and who shall inherit from Lorenzo are issues best proved by
foreign law which must be pleaded and proved. Whether the will was executed in accordance with the
formalities required is answered by referring to Philippine law. In fact, the will was duly
probated. HAICcD
As a guide however, the trial court should note that whatever public policy or good customs may be
involved in our system of legitimes, Congress did not intend to extend the same to the succession of
foreign nationals. Congress specifically left the amount of successional rights to the decedent's
national law. 45
Having thus ruled, we find it unnecessary to pass upon the other issues raised.
The Fallo
WHEREFORE, the petition is GRANTED. The decision of the Court of Appeals in CA-G. R. SP No. 17446
promulgated on July 31, 1995 is SET ASIDE.
In lieu thereof, the Court REVERSES the decision of the Regional Trial Court and RECOGNIZES as VALID
the decree of divorce granted in favor of the deceased Lorenzo N. Llorente by the Superior Court of
the State of California in and for the County of San Diego, made final on December 4, 1952.
Further, the Court REMANDS the cases to the court of origin for determination of the intrinsic validity
of Lorenzo N. Llorente's will and determination of the parties' successional rights allowing proof of
foreign law with instructions that the trial court shall proceed with all deliberate dispatch to settle the
estate of the deceased within the framework of the Rules of Court.
No costs.
SO ORDERED.
Davide, Jr., C.J., Puno, Kapunan, and Ynares-Santiago, JJ., concur.
||| (Llorente v. Court of Appeals, G.R. No. 124371, November 23, 2000)

FIRST DIVISION
[G.R. No. L-37453. May 25, 1979]
RIZALINA GABRIEL GONZALES, petitioner, vs. HONORABLE COURT OF
APPEALS and LUTGARDA SANTIAGO,respondents.
Francisco D. Rilloraza, Jr. for petitioners.
Angel A. Sison for private respondent.
SYNOPSIS
Isabel Gabriel executed a 5-page will two months prior to her death. The signatures of the deceased
appear at the end of the will and at the left margin of all the pages. The signatures of the three
attesting witnesses appear at the bottom of the attestation clause and on the left margin of all the
other pages. The will named private respondent as universal heir and executor, and gave legacies in
specified amounts to certain persons including the petitioner herein. The petition for the probate of
the will filed by private respondent was opposed by petitioner. The trial court disallowed the will on
the grounds that the will of the deceased was not executed and attested as required by law and that
the document presented for probate is not the purported will allegedly dictated by the deceased,
executed and signed by her, and attested by the three attesting witnesses. Respondent appealed. The
Court of Appeals, upon consideration of the evidence, reversed the trial court's decision and allowed
the probate of the will.
In this petition for review, petitioner assigned ten errors which are substantially factual in character
and content. Affirming the decision of the Court of Appeals, the Supreme Court held that the factual
finding of the Court of Appeals are not reviewable and are binding upon the Supreme Court.
SYLLABUS
1. APPEAL; FACTUAL FINDINGS OF THE COURT OF APPEALS ARE NOT REVIEWABLE. The factual
findings of the Court of Appeals are not reviewable the same being binding and conclusive on the
Supreme Court, particularly where the premises are borne by the record or based upon substantial
evidence. Assignments of errors involving factual issues cannot be ventilated in a review of the
decision of the Court of Appeals because only legal question may be raised.
2. WILLS; ATTESTING WITNESSES; QUALIFICATIONS. Under the law, there is no mandatory
requirement that the witnesses testify initially at any time during the trial as to his good standing in
the community, his reputation for trustworthiness and reliability, his honesty and uprightness in order
that his testimony may be believed and accepted by the trial court. It is enough that the qualifications
enumerated in Article 820 of the Civil Code are complied with, such that the soundness of his mind can
be shown by or deduced from his answers to the questions propounded to him, that his age (18 years
or more) is shown from his appearance, testimony, or competently proved otherwise, as well as the
fact that he is not blind, deaf or dumb and that he is able to read and write to the satisfaction of the
court, and that he has none of the disqualifications under Article 821 of the Civil Code.
3. ID.; ATTESTING WITNESSES ARE NOT CHARACTER WITNESSES. The instrumental witnesses are not
character witnesses for they merely attest the execution of a will or testament and affirm the
formalities attendant to said execution. The rulings concerning character witnesses in naturalization
proceedings are not applicable to instrumental witnesses to wills executed under the Civil Code.
4. ID.; ID.; CREDIBLE WITNESSES MEAN COMPETENT WITNESSES. "Credible witnesses" mean
competent witnesses and not those who testify to facts from or upon hearsay. In the strict sense, the
competency of a person to be an instrumental witness to a will is determined by the statute, that is
Art. 820 and 821, Civil Code, whereas his credibility depends on the appreciation of his testimony and
arises from the belief and conclusion of the court that said witness is telling the truth. It is not
necessary to introduce prior and independent proof of the fact that the witnesses are "credible
witnesses", that is, that they have a good standing in the community and reputed to be trustworthy
and reliable.
5. ID.; NOTARIAL WILLS, NATURE OF. A notarial will duly acknowledged by the testatrix and the
witnesses before a notary public is a public document executed and attested through the intervention
of the notary public and as such public document is evidence of the facts in clear, unequivocal manner
therein expressed. It has in its favor the presumption of regularity. To contradict all these, there must
be evidence that is clear, convincing the more than merely preponderant.
6. ID.; ATTESTATION CLAUSE. The attestation clause which the attesting witness signed is the best
evidence as to date of signing because it preserves in permanent form a recital of all the material facts
attending the execution of the will. This is the very purpose of the attestation clause which is made for
the purpose of preserving in permanent form, a record of the facts attending the execution of the will,
so that in case of failure in the memory of the subscribing witnesses, or other casualty they may still be
proved.
7. ID.; EVIDENCE; WITNESSES; PHOTOGRAPHER NOT REQUIRED FOR EXECUTION OF WILL. The law
does not require a photographer for the execution and attestation of the will. The fact that an
attesting witness mistakenly identified the photographer scarcely detracts from her testimony that she
was present when the will was signed because what matters here is not the photographer but the
photograph taken which clearly portrays the attesting witnesses and her co-witnesses.
8. ID.; ID.; MINOR INCONSISTENCIES. The discrepancy in the description of the typewriter used by
the notary which he described as "elate" which to him meant big letters which are of the type in which
the will was typewritten but which was identified by an experts as "pica", and the mistake by the
instrumental witness in mentioning the name of the photographer-these are unimportant details
which could have been affected by the lapse of time and the treachery of human memory such as by
themselves would not alter the probative value of the testimonies of the witnesses on the true
execution of the will, for it cannot be expected that the testimony of every person will be identical and
coinciding with each other with regard to details in an incident and that witnesses are not expected to
remember all details.
9. APPEAL; FINDING OF FACT OF TRIAL COURT. The right of the Court of Appeals to review, alter and
reverse the findings of the trial court where the appellate court, in reviewing the evidence has found
that facts and circumstances of weight and influence have been ignored and overlooked and the
significance of which have been misinterpreted by the trial court, cannot be disputed. Find of facts
made by the trial court, particularly when they are based on conflicting evidence whose evaluation
hinges on questions of credibility of contending witnesses lies particularly within the province of trial
courts and generally, the appellate court should not interfere with the same, unless the trial court has
overlooked and misinterpreted the facts and circumstances established in the record.
10. ID.; ID.; EXCEPTION TO THE RULE THAT JUDGMENT OF COURT OF APPEALS IS CONCLUSIVE AS TO
FACTS. Among the exceptions to the rule that the judgment of the Court of Appeals is conclusive as
to the facts and cannot be reviewed by the Supreme Court are: (1) when the conclusion as a finding
grounded entirely on speculations, surmises or conjectures; (2) when the inference is manifestly
mistaken, absurd or impossible; (3) when there is a grave abuse of discretion; (4) when the judgment is
based on a misapprehension of facts; (5) when the findings of facts are conflicting; (6) when the Court
of Appeals, in making its findings, went beyond the issues of the case and the same is contrary to the
admissions of both appellant and appellee.
11. WILLS; DUE EXECUTION. Where the tree instrumental witnesses, who constitute the best
evidence of the will-making, as well as the lawyer who prepared it and who thereafter notarized it
have testified in favor of the will, and where all of them are disinterested witnesses who stand to
received no benefit from the testament, and the signatures of the witnesses and the testatrix have
been identified on the will and there is no claim whatsoever and by any one, much less the petitioner
that they are not genuine, the decision holding that the will was executed in accordance with the
formalities required by law should be affirmed.
D E C I S I O N
GUERRERO, J p:
This is a petition for review of the decision of the Court of Appeals, First Division, 1 promulgated on
May 4, 1973 in CA-G. R. No. 36523-R which reversed the decision of the Court of First Instance of Rizal
dated December 15, 1964 and allowed the probate of the last will and testament of the deceased
Isabel Gabriel.
It appears that on June 24, 1961, herein private respondent Lutgarda Santiago filed a petition with the
Court of First Instance of Rizal docketed as Special Proceedings No. 3617, for the probate of a will
alleged to have been executed by the deceased Isabel Gabriel and designating therein petitioner as
the principal beneficiary and executrix.
There is no dispute in the records that the late Isabel Andres Gabriel died as a widow and without
issue in the municipality of Navotas, province of Rizal her place of residence, on June 7, 1961 at the
age of eighty-five (85), having been born in 1876. It is likewise not controverted that herein private
respondent Lutgarda Santiago and petitioner Rizalina Gabriel Gonzales are nieces of the deceased, and
that private respondent, with her husband and children, lived with the deceased at the latter's
residence prior and up to the time of her death.
The will submitted for probate, Exhibit "F", which is typewritten and in Tagalog, appears to have been
executed in Manila on the 15th day of April, 1961, or barely two (2) months prior to the death of Isabel
Gabriel. It consists of five (5) pages, including the pages whereon the attestation clause and the
acknowledgment of the notary public were written. The signatures of the deceased Isabel Gabriel
appear at the end of the will on page four and at the left margin of all the pages. The attestation
clause, which is found on page four, reads as follows:

"PATUNAY NG MGA SAKSI
"Kaming mga nakalagdang mga saksi o testigo na ang aming mga tinitirahan
ay nakasulat sa gawing kanan at kahilira ng aming mga pangalan sa ibaba nito,
ay pagpapatutuo na ipinakilala, ipinaalam at ipinahayag sa amin ni Isabel
Gabriel na ang kasulatang ito na binubuo ng Limang Dahon (Five Pages) pati
na ang dahong ito, na siya niyang TESTAMENTO AT HULING HABILIN, ngayong
ika 15 ng Abril, 1961, ay nilagdaan ng nasabing testadora na si Isabel Gabriel
ang nasabing testamento sa ibaba o ilalim ng kasulatan na nasa ika apat na
dahon (page four) at nasa itaas ng patunay naming ito, at sa kaliwang panig
ng lahat at bawat dahon (and on the left hand margin of each and every
page), sa harap ng lahat at bawat isa sa amin, at kami namang mga saksi ay
lumagda sa harap ng nasabing testadora, at sa harap ng lahat at bawat isa sa
amin, sa ilalim ng patunay ng mga saksi at sa kaliwang panig ng lahat at
bawa't dahon ng testamentong ito."
At the bottom thereof, under the heading "Pangalan", are written the signatures of Matilde D.
Orobia, Celso D. Gimpaya and Maria R. Gimpaya, and opposite the same, under the heading
"Tirahan", are their respective places of residence, 961 Highway 54, Philamlife, for Miss Orobia,
and 12 Dagala St., Navotas, Rizal, for the two Gimpayas. Their signatures also appear on the left
margin of all the other pages. The will is paged by typewritten words as follows: "Unang Dahon"
and underneath "(Page One)", "Ikalawang Dahon" and underneath "(Page Two)", etc., appearing
at the top of each page. prLL
The will itself provides that the testatrix desired to be buried in the Catholic Cemetery of Navotas, Rizal
in accordance with the rites of the Roman Catholic Church, all expenses to be paid from her estate;
that all her obligations, if any, be paid; that legacies in specified amounts be given to her sister,
Praxides Gabriel Vda. de Santiago, her brother Santiago Gabriel, and her nephews and nieces,
Benjamin, Salud, Rizalina (herein petitioner), Victoria, Ester, Andres, all surnamed Gabriel, and
Evangelina, Rudyardo, Rosa, Andrea, Marcial, Numancia, Verena, all surnamed Santiago. The herein
private respondent Lutgarda Santiago, who was described in the will by the testatrix as "aking mahal
na pamangkin na aking pinalaki, inalagaan at minahal na katulad ng isang tunay na anak" and named
as universal heir and executor, were bequeathed all properties and estate, real or personal, already
acquired, or to be acquired, in her (testatrix's) name, after satisfying the expenses, debts and legacies
as aforementioned.
The petition was opposed by Rizalina Gabriel Gonzales, herein petitioner, assailing the document
purporting to be the will of the deceased on the following grounds:
1. that the same is not genuine; and in the alternative
2. that the same was not executed and attested as required by law;
3. that, at the time of the alleged execution of the purported will, the
decedent lacked testamentary capacity due to old age and sickness; and in
the second alternative
4. that the purported will was procured through undue and improper
pressure and influence on the part of the principal beneficiary, and/or of
some other person for her benefit.
Lutgarda Santiago filed her Answer to the Opposition on February 1, 1962. After trial the court a
quo rendered judgment, the summary and dispositive portions of which read:
"Passing in summary upon the grounds advanced by the oppositor, this Court
finds:
"1. That there is no iota of evidence to support the contention that the
purported will of the deceased was procured through undue and improper
pressure and influence on the part of the petitioner, or of some other person
for her benefit;
"2. That there is insufficient evidence to sustain the contention that at the
time of the alleged execution of the purported will, the deceased lacked
testamentary capacity due to old age and sickness;
"3. That sufficient and abundant evidence warrants conclusively the fact that
the purported will of the deceased was not executed and attested as required
by law;
"4. That the evidence is likewise conclusive that the document presented for
probate, Exhibit 'F' is not the purported will allegedly dictated by the
deceased, executed and signed by her, and attested by her three attesting
witnesses on April 15, 1961.
"WHEREFORE, Exhibit 'F', the document presented for probate as the last will
and testament of the deceased Isabel Gabriel, is hereby DISALLOWED."
From this judgment of disallowance, Lutgarda Santiago appealed to respondent Court, hence, the only
issue decided on appeal was whether or not the will in question was executed and attested as
required by law. The Court of Appeals, upon consideration of the evidence adduced by both parties,
rendered the decision now under review, holing that the will in question was signed and executed by
the deceased Isabel Gabriel on April 15, 1961 in the presence of the three attesting witnesses, Matilde
Orobia, Celso Gimpaya and Maria Gimpaya, signing and witnessing the document in the presence of
the deceased and of each other as required by law, 2 hence allowed probate.
Oppositor Rizalina Gabriel Gonzales moved for reconsideration 3 of the aforesaid decision and such
motion was opposed 4 by petitioner-appellant Lutgarda Santiago. Thereafter, parties submitted their
respective Memoranda, 5 and on August 28, 1973, respondent Court, Former Special First Division, by
Resolution 6 denied the motion for reconsideration stating that:
"The oppositor-appellee contends that the preponderance of evidence shows
that the supposed last will and testament of Isabel Gabriel was not executed
in accordance with law because the same was signed on several occasions,
that the testatrix did not sign the will in the presence of all the instrumental
witnesses did not sign the will in the presence of each other.
"The resolution of the factual issue raised in the motion for reconsideration
hinges on the appreciation of the evidence. We have carefully re-examined
the oral and documentary evidence of record. There is no reason to alter the
findings of fact in the decision of this Court sought to be set aside. 7
In her petition before this Court, oppositor Rizalina Gabriel Gonzales contends that respondent Court
abused its discretion and/or acted without or in excess of its jurisdiction in reversing the findings of
fact and conclusions of the trial court. The Court, after deliberating on the petition but without giving
due course resolved, in the Resolution dated Oct. 11, 1973 to require the respondents to comment
thereon, which comment was filed on Nov. 14, 1973. Upon consideration of the allegations, the issues
raised and the arguments adduced in the petition, as well as the Comment 8 of private respondent
thereon, We denied the petition by Resolution on November 26, 1973, 9 the question raised being
factual and for insufficient showing that the findings of fact by respondent Court were unsupported by
substantial evidence.
Subsequently, or on December 17, 1973, petitioner Rizalina Gabriel Gonzales filed a Motion for
Reconsideration 10 which private respondent answered by way of her Comment or Opposition 11 filed
on January 15, 1974. A Reply and Rejoinder to Reply followed. Finally, on March 27, 1974, We resolved
to give due course to the petition.
The petitioner in her brief makes the following assignment of errors:
I. The respondent Court of Appeals erred in holding that the document, Exhibit "F" was executed and
attested as required by law when there was absolutely no proof that the three instrumental witnesses
were credible witnesses.
II. The Court of Appeals erred in reversing the finding of the lower court that the preparation and
execution of the will Exhibit "F", was unexpected and coincidental.
III. The Court of Appeals erred in finding that Atty. Paraiso was not previously furnished with the
names and residence certificates of the witnesses as to enable him to type such data into the
document Exhibit "F".
IV. The Court of Appeals erred in holding that the fact that the three typewritten lines under the
typewritten words "Pangalan" and "Tinitirahan" were left blank shows beyond cavil that the three
attesting witnesses were all present in the same occasion.
V. The Court of Appeals erred in reversing the trial court's finding that it was incredible that Isabel
Gabriel could have dictated the will, Exhibit "F", without any note or document, to Atty. Paraiso.
VI. The Court of Appeals erred in reversing the finding of the trial court that Matilde Orubia was not
physically present when the will, Exhibit "F" was allegedly signed on April 15, 1961 by the deceased
Isabel Gabriel and the other witnesses Celso Gimpaya and Maria Gimpaya.
VII. The Court of Appeals erred in holding that the trial court gave undue importance to the picture
takings as proof that the will was improperly executed.
VIII. The Court of Appeals erred in holding that the grave contradictions, evasions, and
misrepresentations of witnesses (subscribing and notary) presented by the petitioner had been
explained away, and that the trial court erred in rejecting said testimonies.
IX. The Court of Appeals acted in excess of its appellate jurisdiction or has so far departed from the
accepted and usual course of judicial proceedings, as to call for an exercise of the power of
supervision.
X. The Court of Appeals erred in reversing the decision of the trial court and admitting to probate
Exhibit "F", the alleged last will and testament of the deceased Isabel Gabriel.
It will be noted from the above assignments of errors that the same are substantially factual in
character and content. Hence, at the very outset, We must again state the oft-repeated and well-
established rule that in this jurisdiction, the factual findings of the Court of Appeals are not reviewable,
the same being binding and conclusive on this Court. This rule has been stated and reiterated in a long
line of cases enumerated in Chan vs. CA (L-27488, June 30, 1970, 33 SCRA 737, 743) 12 and Tapas vs.
CA (L-22202, February 27; 1976, 69 SCRA 393), 13 and in the more recent cases of Baptista vs. Carillo
and CA (L-32192, July 30, 1976, 72 SCRA 214, 217) and Vda. de Catindig vs. Heirs of Catalina Roque (L-
25777, November 26, 1976, 74 SCRA 83, 88). In the case of Chan vs. CA, this Court said: LibLex

". . . from Guico v. Mayuga, a 1936 decision, the opinion being penned by the
then Justice Recto, it has been well-settled that the jurisdiction of this Court
in cases brought to us from the Court of Appeals is limited to reviewing and
revising the errors of law imputed to it, its findings of fact being conclusive.
More specifically, in a decision exactly a month later, this Court, speaking
through the then Justice Laurel it was held that the same principle is
applicable, even if the Court of Appeals was in disagreement with the lower
court as to the weight of the evidence with a consequent reversal of its
findings of fact. . . .
Stated otherwise, findings of facts by the Court of Appeals, when supported by substantive evidence
are not reviewable on appeal by certiorari. Said findings of the appellate court are final and cannot be
disturbed by Us particularly because its premises are borne out by the record or based upon
substantial evidence and what is more, when such findings are correct. Assignments of errors involving
factual issues cannot be ventilated in a review of the decision of the Court of Appeals because only
legal questions may be raised. The Supreme Court is not at liberty to alter or modify the facts as set
forth in the decision of the Court of Appeals sought to be reversed. Where the findings of the Court of
Appeals are contrary to that of the trial court, a minute scrutiny by the Supreme Court is in order, and
resort to duly-proven evidence becomes necessary. The general rule We have thus stated above is not
without some recognized exceptions.
Having laid down the above legal precepts as Our foundation, We now proceed to consider
petitioner's assignments of errors.
Petitioner, in her first assignment, contends that the respondent Court of Appeals erred in holding that
the document, Exhibit "F", was executed and attested as required by law when there was absolutely
no proof that the three instrumental witnesses were credible witnesses. She argues that the
requirement in Article 806, Civil Code, that the witnesses must be credible is an absolute requirement
which must be complied with before an alleged last will and testament may be admitted to probate
and that to be a credible witness, there must be evidence on record that the witness has a good
standing in his community, or that he is honest and upright, or reputed to be trustworthy and reliable.
According to petitioner, unless the qualifications of the witness are first established, his testimony may
not be favorably considered. Petitioner contends that the term "credible" is not synonymous with
"competent" for a witness may be competent under Article 820 and 821 of the Civil Code and still not
be credible as required by Article 805 of the same Code. It is further urged that the term "credible" as
used in the Civil Code should receive the same settled and well-known meaning it has under the
Naturalization Law, the latter being a kindred legislation with the Civil Code provisions on wills with
respect to the qualifications of witnesses.
We find no merit to petitioner's first assignment of error. Article 820 of the Civil Code provides the
qualifications of a witness to the execution of wills while Article 821 sets forth the disqualification from
being a witness to a will. These Articles state:
"Art. 820. Any person of sound mind and of the age of eighteen years or
more, and not blind, deaf or dumb, and able to read and write, may be a
witness to the execution of a will mentioned in article 805 of this Code.
"Art. 821. The following are disqualified from being witnesses to a will:
(1) Any person not domiciled in the Philippines,
(2) Those who have been convicted of falsification of a
document, perjury or false testimony.
Under the law, there is no mandatory requirement that the witness testify initially or at any time
during the trial as to his good standing in the community, his reputation for trustworthiness and
reliableness, his honesty and uprightness in order that his testimony may be believed and accepted by
the trial court. It is enough that the qualifications enumerated in Article 820 of the Civil Code are
complied with, such that the soundness of his mind can be shown by or deduced from his answers to
the questions propounded to him, that his age (18 years or more) is shown from his appearance,
testimony, or competently proved otherwise, as well as the fact that he is not blind, deaf or dumb and
that he is able to read and write to the satisfaction of the Court, and that he has none of the
disqualifications under Article 821 of the Civil Code. We reject petitioner's contention that it must first
be established in the record the good standing of the witness in the community, his reputation for
trustworthiness and reliableness, his honesty and uprightness, because such attributes are presumed
of the witness unless the contrary is proved otherwise by the opposing party.
We also reject as without merit petitioner's contention that the term "credible" as used in the Civil
Code should be given the same meaning it has under the Naturalization Law where the law is
mandatory that the petition for naturalization must be supported by two character witnesses who
must prove their good standing in the community, reputation for trustworthiness and reliableness,
their honesty and uprightness. The two witnesses in a petition for naturalization are character
witnesses in that being citizens of the Philippines, they personally know the petitioner to be a resident
of the Philippines for the period of time required by the Act and a person of good repute and morally
irreproachable and that said petitioner has in their opinion all the qualifications necessary to become a
citizen of the Philippines and is not in any way disqualified under the provisions of the Naturalization
Law (Section 7,Commonwealth Act No. 473 as amended).
In probate proceedings, the instrumental witnesses are not character witnesses for they merely attest
the execution of a will or testament and affirm the formalities attendant to said execution. And We
agree with the respondent that the rulings laid down in the cases cited by petitioner concerning
character witnesses in naturalization proceedings are not applicable to instrumental witnesses to wills
executed under the Civil Code of the Philippines.
In the case at bar, the finding that each and everyone of the three instrumental witnesses, namely,
Matilde Orobia, Celso Gimpaya and Maria Gimpaya, are competent and credible is satisfactorily
supported by the evidence as found by the respondent Court of Appeals, which findings of fact this
Tribunal is bound to accept and rely upon. Moreover, petitioner has not pointed to any disqualification
of any of the said witnesses, much less has it been shown that anyone of them is below 18 years of
age, of unsound mind, deaf or dumb, or cannot read or write.
It is true that under Article 805 of the New Civil Code, every will, other than a holographic will, must be
subscribed at the end thereof by the testator himself or by the testator's name written by some other
person in his presence, and by his express direction, and attested and subscribed by three or
more credible witnesses in the presence of the testator and of one another. While the petitioner
submits that Article 820 and 821 of the New Civil Code speak of the competency of a witness due to his
qualifications under the first Article and none of the disqualifications under the second Article,
whereas Article 805 requires the attestation of three or more credible witnesses, petitioner concludes
that the term credible requires something more than just being competent and, therefore, a witness in
addition to being competent under Articles 820 and 821 must also be a credible witness under Article
805.
Petitioner cites American authorities that competency and credibility of a witness are not synonymous
terms and one may be a competent witness and yet not a credible one. She exacerbates that there is
no evidence on record to show that the instrumental witnesses are credible in themselves, that is, that
they are of good standing in the community since one was a family driver by profession and the
second the wife of the driver, a housekeeper. It is true that Celso Gimpaya was the driver of the
testatrix and his wife Maria Gimpaya, merely a housekeeper, and that Matilde Orobia was a piano
teacher to a grandchild of the testatrix. But the relation of employer and employee much less the
humble social or financial position of a person do not disqualify him to be a competent testamentary
witness. (Molo-Pekson and Perez-Nable vs. Tanchuco, et al., 100 Phil. 344; Testate Estate of
Raymundo, Off. Gaz., March 18, 1941, p. 788). llcd
Private respondent maintains that the qualifications of the three or more credible witnesses
mentioned in Article 805 of the Civil Code are those mentioned in Article 820 of the same Code, this
being obvious from that portion of Article 820 which says "may be a witness to the execution of a will
mentioned in Article 805 of this Code," and cites authorities that the word "credible" insofar as
witnesses to a will are concerned simply means "competent." Thus, in the case of Suntay vs. Suntay, 95
Phil. 500, the Supreme Court held that "Granting that a will was duly executed and that it was in
existence at the time of, and not revoked before, the death of the testator, still the provisions of the
lost will must be clearly and distinctly proved by at least two credible witnesses. 'Credible
witnesses' mean competent witnesses and not those who testify to facts from or upon hearsay."
(emphasis supplied).
In Molo Pekson and Perez-Nable vs. Tanchuco, et al., 100 Phil. 344, the Supreme Court held that
"Section 620 of the same Code of Civil Procedure provides that any person of sound mind, and of the
age of eighteen years or more, and not blind, deaf, or dumb and able to read and write, may be a
witness to the execution of a will. This same provision is reproduced in our New Civil Code of 1950,
under Art. 820. The relation of employer and employee, or being a relative to the beneficiary in a will,
does not disqualify one to be a witness to a will. The main qualification of a witness in the attestation
of wills, if other qualifications as to age, mental capacity and literacy are present, is that said witness
must be credible, that is to say, his testimony may be entitled to credence. There is a long line of
authorities on this point, a few of which we may cite:

"A 'credible witness' is one who is not disqualified to testify by mental
incapacity, crime, or other cause. Historical Soc. of Dauphin County vs. Kelker,
74 A. 619, 226 Pa. 16, 134 Am. St. Rep. 1010." (Words and Phrases, Vol. 10, p.
340).
"As construed by the common law, a 'credible witness' to a will means a
'competent witness.' Appeal of Clark, 95 A. 517, 114 Me. 105, Ann. Cas.
1917A, 837." (Ibid, p. 341).
"Expression 'credible witness' in relation to attestation of wills means
'competent witness'; that is, one competent under the law to testify to fact of
execution of will. Vernon's Ann. Civ. St. art. 8283. Moos vs. First State Bank of
Uvalde, Tex. Civ. App. 60 S. W. 2nd 888, 889." (Ibid, p. 342)
"The term 'credible', used in the statute of wills requiring that a will shall be
attested by two credible witnesses means competent; witnesses who, at the
time of attesting the will, are legally competent to testify, in a court of justice,
to the facts attested by subscribing the will, the competency being
determined as of the date of the execution of the will and not of the time it is
offered for probate. Smith vs. Goodell, 101 N.E. 255, 266, 258 Ill. 145." (Ibid.)
"'Credible witnesses', as used in the statute relating to wills, means
competent witnesses that is, such persons as are not legally disqualified
from testifying in courts of justice, by reason of mental incapacity, interest, or
the commission of crimes, or other cause excluding them from testifying
generally, or rendering them incompetent in respect of the particular subject
matter or in the particular suit. Hill vs. Chicago Title & Trust co., 152 N.E. 545,
546, 322 Ill. 42." (Ibid. p. 343)
In the strict sense, the competency of a person to be an instrumental witness to a will is determined
by the statute, that is Art. 820 and 821, Civil Code, whereas his credibility depends on the appreciation
of his testimony and arises from the belief and conclusion of the Court that said witness is telling the
truth. Thus, in the case of Vda. de Aroyo v. El Beaterio del Santissimo Rosario de Molo, No. L-22005,
May 3, 1968, the Supreme Court held and ruled that: "Competency as a witness is one thing, and it is
another to be a credible witness, so credible that the Court must accept what he says. Trial courts may
allow a person to testify as a witness upon a given matter because he is competent, but may
thereafter decide whether to believe or not to believe his testimony."
In fine, We state the rule that the instrumental witnesses in order to be competent must be shown to
have the qualifications under Article 820 of the Civil Code and none of the disqualifications under
Article 821 and for their testimony to be credible, that is worthy of belief and entitled to credence, it is
not mandatory that evidence be first established on record that the witnesses have a good standing in
the community or that they are honest and upright or reputed to be trustworthy and reliable, for a
person is presumed to be such unless the contrary is established otherwise. In other words, the
instrumental witnesses must be competent and their testimonies must be credible before the court
allows the probate of the will they have attested. We, therefore, reject petitioner's position that it was
fatal for respondent not to have introduced prior and independent proof of the fact that the witnesses
were "credible witnesses", that is, that they have a good standing in the community and reputed to be
trustworthy and reliable.
Under the second, third, fourth, fifth, sixth, seventh and eighth assignments of errors, petitioner
disputes the findings of fact of the respondent court in finding that the preparation and execution of
the will was expected and not coincidental, in finding that Atty. Paraiso was not previously furnished
with the names and residence certificates of the witnesses as to enable him to type such data into the
document Exhibit "F", in holding that the fact that the three typewritten lines under the typewritten
words "pangalan" and "tinitirahan" were left blank shows beyond cavil that the three attesting
witnesses were all present in the same occasion, in holding credible that Isabel Gabriel could have
dictated the will without note or document to Atty. Paraiso, in holding that Matilde Orobia was
physically present when the will was signed on April 15, 1961 by the deceased Isabel Gabriel and the
other witnesses Celso Gimpaya and Maria Gimpaya, in holding that the trial court gave undue
importance to the picture takings as proof that the will was improperly executed, and in holding that
the grave contradictions, evasions and misrepresentations of the witnesses (subscribing and notary)
presented by the petitioner had been explained away.
Since the above errors are factual, We must repeat what We have previously laid down that the
findings of fact of the appellate court are binding and controlling which We cannot review, subject to
certain exceptions which We will consider and discuss hereinafter. We are convinced that the
appellate court's findings are sufficiently justified and supported by the evidence on record. Thus, the
alleged unnaturalness characterizing the trip of the testatrix to the office of Atty. Paraiso and bringing
all the witnesses without previous appointment for the preparation and execution of the will and that
it was coincidental that Atty. Paraiso was available at the moment impugns the finding of the Court of
Appeals that although Atty. Paraiso admitted the visit of Isabel Gabriel and of her companions to his
office on April 15, 1961 was unexpected as there was no prior appointment with him, but he explained
that he was available for any business transaction on that day and that Isabel Gabriel had earlier
requested him to help her prepare her will. The finding of the appellate court is amply based on the
testimony of Celso Gimpaya that he was not only informed on the morning of the day that he
witnessed the will but that it was the third time when Isabel Gabriel told him that he was going to
witness the making of her will, as well as the testimony of Maria Gimpaya that she was called by her
husband Celso Gimpaya to proceed to Isabel Gabriel's house which was nearby and from said house,
they left in a car to the lawyer's office, which testimonies are recited in the respondent Court's
decision.
The respondent Court further found the following facts: that Celso Gimpaya and his wife Maria
Gimpaya obtained residence certificates a few days before Exhibit "F" was executed. Celso Gimpaya's
residence certificate No. A-5114942 was issued at Navotas, Rizal on April 13, 1961 while Maria
Gimpaya's residence certificate No. A-5114974 was issued also at Navotas, Rizal on April 14, 1961. The
respondent Court correctly observed that there was nothing surprising in these facts and that the
securing of these residence certificates two days and one day, respectively, before the execution of
the will on April 15, 1961, far from showing an amazing coincidence, reveals that the spouses were
earlier notified that they would be witnesses to the execution of Isabel Gabriel's will. LLphil
We also agree with the respondent Court's conclusion that the excursion to the office of Atty. Paraiso
was planned by the deceased, which conclusion was correctly drawn from the testimony of the
Gimpaya spouses that they started from the Navotas residence of the deceased with a photographer
and Isabel Gabriel herself, then they proceeded by car to Matilde Orobia's house in Philamlife, Quezon
City to fetch her and from there, all the three witnesses (the Gimpayas and Orobia) passed by a place
where Isabel Gabriel stayed for about ten to fifteen minutes at the clinic of Dr. Chikiamco before they
proceeded to Atty. Cipriano Paraiso's office.
It is also evident from the records, as testified to by Atty. Paraiso, that previous to the day that the will
was executed on April 15, 1961, Isabel Gabriel had requested him to help her in the execution of her
will and that he told her that if she really wanted to execute her will, she should bring with her at least
the Mayor of Navotas, Rizal and a Councilor to be her witnesses and that he (Atty. Paraiso) wanted a
medical certificate from a physician notwithstanding the fact that he believed her to be of sound and
disposition mind. From this evidence, the appellate court rightly concluded, thus: "It is, therefore, clear
that the presence of Isabel Gabriel and her witnesses Matilde Orobia, Celso Gimpaya and Maria
Gimpaya including the photographer in the law office of Atty. Paraiso was not coincidental as their
gathering was pre-arranged by Isabel Gabriel herself."
As to the appellate court's finding that Atty. Paraiso was not previously furnished with the names and
residence certificates of the witnesses as to enable him to type such data into the document Exhibit
"F", which the petitioner assails as contradictory and irreconcilable with the statement of the Court
that Atty. Paraiso was handed a list (containing the names of the witnesses and their respective
residence certificates) immediately upon their arrival in the law office by Isabel Gabriel and this was
corroborated by Atty. Paraiso himself who testified that it was only on said occasion that he received
such list from Isabel Gabriel, We cannot agree with petitioner's contention. We find no contradiction
for the respondent Court held that on the occasion of the will-making on April 15, 1961, the list was
given immediately to Atty. Paraiso and that no such list was given the lawyer in any previous occasion
or date prior to April 15, 1961.
But whether Atty. Paraiso was previously furnished with the names and residence certificates of the
witnesses on a prior occasion or on the very occasion and date in April 15, 1961 when the will was
executed, is of no moment for such data appear in the notarial acknowledgment of Notary Public
Cipriano Paraiso, subscribed and sworn to by the witnesses on April 15, 1961 following the attestation
clause duly executed and signed on the same occasion, April 15, 1961. And since Exhibit "F" is a
notarial will duly acknowledged by the testatrix and the witnesses before a notary public, the same is a
public document executed and attested through the intervention of the notary public and as such
public document is evidence of the facts in clear, unequivocal manner therein expressed. It has in its
favor the presumption of regularity. To contradict all these, there must be evidence that is clear,
convincing and more than merely preponderant. (Yturalde vs. Azurin, 28 SCRA 407). We find no such
evidence pointed by petitioner in the case at bar.

Likewise, the conclusion of the Court of Appeals in holding that the fact that the three typewritten
lines under the typewritten words "pangalan" and "tinitirahan" were left blank shows beyond cavil
that the three attesting witnesses were all present in the same occasion merits Our approval because
this conclusion is supported and borne out by the evidence found by the appellate court, thus: "On
page 5 of Exhibit "F", beneath the typewritten words "names", "Res. Tax Cert.", "date issued" and
"place issued" the only name of Isabel Gabriel with Residence Tax Certificate No. A-5113274 issued on
February 24, 1961 at Navotas, Rizal appears to be in typewritten form while the names, residence tax
certificate numbers, dates and places of issuance of said certificates pertaining to the three (3)
witnesses were personally handwritten by Atty. Paraiso. Again, this coincides with Atty. Paraiso's even
the sale must be made to close relatives; and the seventh was the appointment of the appellant
Santiago as executrix of the will without bond. The technical description of the properties in paragraph
5 of Exhibit F was not given and the numbers of the certificates of title were only supplied by Atty.
Paraiso."
It is true that in one disposition, the numbers of the Torrens titles of the properties disposed and the
docket number of a special proceeding are indicated which Atty. Paraiso candidly admitted were
supplied by him, whereupon petitioner contends that it was incredible that Isabel Gabriel could have
dictated the will Exhibit "F" without any note or document to Atty. Paraiso, considering that Isabel
Gabriel was an old and sickly woman more than eighty-one years old and had been suffering from a
brain injury caused by two severe blows at her head and died of terminal cancer a few weeks after the
execution of Exhibit "F". While we can rule that this is a finding of fact which is within the competency
of the respondent appellate court in determining the testamentary capacity of the testatrix and is,
therefore, beyond Our power to revise and review, We nevertheless hold that the conclusion reached
by the Court of Appeals that the testatrix dictated her will without any note or memorandum appears
to be fully supported by the following facts or evidence appearing on record. Thus, Isabel Gabriel,
despite her age, was particularly active in her business affairs as she actively managed the affairs of
the movie business Isabelita Theater, paying the aparatistas herself until June 4, 1961, 3 days before
her death. She was the widow of the late Eligio Naval, former Governor of Rizal Province and acted as
co-administratrix in the Intestate Estate of her deceased husband Eligio Naval. The text of the will was
in Tagalog, a dialect known and understood by her and in the light of all the circumstances, We agree
with the respondent Court that the testatrix dictated her will without any note or memorandum, a fact
unanimously testified to by the three attesting witnesses and the notary public himself.
Petitioner's sixth assignment of error is also benefit of merit. The evidence, both testimonial and
documentary is, according to the respondent court, overwhelming that Matilde Orobia was physically
present when the will was signed on April 15, 1961 by the testatrix and the other two witnesses, Celso
Gimpaya and Maria Gimpaya. Such factual finding of the appellate court is very clear, thus: "On the
contrary, the record is replete with proof that Matilde Orobia was physically present when the will was
signed by Isabel Gabriel on April 15, 1961 along with her co-witnesses Celso Gimpaya and Maria
Gimpaya. The trial court's conclusion that Orobia's admission that she gave piano lessons to the child
of the appellant on Wednesdays and Saturdays and that April 15, 1961 happened to be a Saturday for
which reason Orobia could not have been present to witness the will on that day is purely
conjectural. Witness Orobia did not admit having given piano lessons to the appellant's child every
Wednesday and Saturday without fail. It is highly probable that even if April 15, 1961 were a Saturday,
she gave no piano lessons on that day for which reason she could have witnessed the execution of the
will. Orobia spoke of occasions when she missed giving piano lessons and had to make up for the
same. Anyway, her presence at the law office of Atty. Paraiso was in the morning of April 15, 1961 and
there was nothing to preclude her from giving piano lessons on the afternoon of the same day in
Navotas, Rizal."
In addition to the testimony of Matilde Orobia, Celso Gimpaya and Maria Gimpaya that Matilde was
present on April 15, 1961 and that she signed the attestation clause to the will and on the left-hand
margin of each of the pages of the will, the documentary evidence which is the will itself, the
attestation clause and the notarial acknowledgment overwhelmingly and convincingly prove such fact
that Matilde Orobia was present on that day of April 15, 1961 and that she witnessed the will by
signing her name thereon and acknowledged the same before the notary public, Atty. Cipriano P.
Paraiso. The attestation clause which Matilde Orobia signed is the best evidence as to the date of
signing because it preserves in permanent form a recital of all the material facts attending the
execution of the will. This is the very purpose of the attestation clause which is made for the purpose
of preserving in permanent form, a record of the facts attending the execution of the will, so that in
case of failure in the memory of the subscribing witnesses, or other casualty they may still be
proved.(Thompson on Wills, 2nd ed., Sec. 132; Leynez vs. Leynez, 68 Phil. 745). LLpr
As to the seventh error assigned by petitioner faulting the Court of Appeals in holding that the trial
court gave undue importance to the picture-takings as proof that the will was improperly executed,
We agree with the reasoning of the respondent court that: "Matilde Orobia's identification of the
photographer as "Cesar Mendoza", contrary to what the other two witnesses (Celso and Maria
Gimpaya) and Atty. Paraiso said that the photographer was Benjamin Cifra, Jr., is at worst a minor
mistake attributable to lapse of time. The law does not require a photographer for the execution and
attestation of the will. The fact that Miss Orobia mistakenly identified the photographer as Cesar
Mendoza scarcely detracts from her testimony that she was present when the will was signed because
what matters here is not the photographer but the photograph taken which clearly portrays Matilde
Orobia herself, her co-witnesses Celso Gimpaya." Further, the respondent Court correctly held: "The
trial court gave undue importance to the picture-takings, jumping therefrom to the conclusion that the
will was improperly executed. The evidence however, heavily points to only one occasion of the
execution of the will on April 15, 1961 which was witnessed by Matilde Orobia, Celso Gimpaya and
Maria Gimpaya. These witnesses were quite emphatic and positive when they spoke of this occasion.
Hence, their identification of some photographs wherein they all appeared along with Isabel Gabriel
and Atty. Paraiso was superfluous."
Continuing, the respondent Court declared: "It is true that the second picture-taking was disclosed at
the cross examination of Celso Gimpaya. But this was explained by Atty. Paraiso as a reenactment of
the first incident upon the insistence of Isabel Gabriel. Such reenactment where Matilde Orobia was
admittedly no longer present was wholly unnecessary if not pointless. What was important was that
the will was duly executed and witnessed on the first occasion on April 15, 1961," and We agree with
the Court's rationalization in conformity with logic, law and jurisprudence which do not require
picture-taking as one of the legal requisites for the execution or probate of a will.
Petitioner points to alleged grave contradictions, evasions and misrepresentations of witnesses in their
respective testimonies before the trial court. On the other hand, the respondent Court of Appeals held
that said contradictions, evasions and misrepresentations had been explained away. Such
discrepancies as in the description of the typewriter used by Atty. Paraiso which he described as "elite"
which to him meant big letters which are of the type in which the will was typewritten but which was
identified by witness Jolly Bugarin of the N.B.I as "pica", the mistake in mentioning the name of the
photographer by Matilde Orobia to be Cesar Mendoza when actually it was Benjamin Cifra, Jr. these
are indeed unimportant details which could have been affected by the lapse of time and the treachery
of human memory such that by themselves would not alter the probative value of their testimonies on
the true execution of the will, (Pascual vs. dela Cruz, 28 SCRA 421, 424) for it cannot be expected that
the testimony of every person will be identical and coinciding with each other with regard to details of
an incident and that witnesses are not expected to remember all details. Human experience teach us
"that contradictions of witnesses generally occur in the details of certain incidents, after a long series
of questionings, and far from being an evidence of falsehood constitute a demonstration of good faith.
Inasmuch as not all those who witness an incident are impressed in like manner, it is but natural that
in relating their impressions, they should not agree in the minor details; hence the contradiction in
their testimony." (Lopez vs. Liboro, 81 Phil. 429).
It is urged of Us by the petitioner that the findings of the trial court should not have been disturbed by
the respondent appellate court because the trial court was in a better position to weigh and evaluate
the evidence presented in the course of the trial. As a general rule, petitioner is correct but it is subject
to well-established exceptions. The right of the Court of Appeals to review, alter and reverse the
findings of the trial court where the appellate court, in reviewing the evidence has found that facts and
circumstances of weight and influence have been ignored and overlooked and the significance of
which have been misinterpreted by the trial court, cannot be disputed. Findings of facts made by trial
courts particularly when they are based on conflicting evidence whose evaluation hinges on questions
of credibility of contending witnesses lies peculiarly within the province of trial courts and generally,
the appellate court should not interfere with the same. In the instant case, however, the Court of
Appeals found that the trial court had overlooked and misinterpreted the facts and circumstances
established in the record. Whereas the appellate court said that "Nothing in the record supports the
trial court's unbelief that Isabel Gabriel dictated her will without any note or document to Atty.
Paraiso;" that the trial court's conclusion that Matilde Orobia could not have witnessed anybody
signing the alleged will or that she could not have witnessed Celso Gimpaya and Maria Gimpaya sign
the same or that she witnessed only the deceased signing it, is a conclusion based not on facts but on
inferences; that the trial court gave undue importance to the picture-takings, jumping therefrom to
the conclusion that the will was improperly executed and that there is nothing in the entire record to
support the conclusion of the court a quo that the will-signing occasion was a mere coincidence and
that Isabel Gabriel made an appointment only with Matilde Orobia to witness the signing of her will,
then it becomes the duty of the appellate court to reverse findings of fact of the trial court in the
exercise of its appellate jurisdiction over the lower courts. LLpr

Still the petitioner insists that the case at bar is an exception to the rule that the judgment of the Court
of Appeals is conclusive as to the facts and cannot be reviewed by the Supreme Court. Again We agree
with the petitioner that among the exceptions are: (1) when the conclusion is a finding grounded
entirely on speculations, surmises or conjectures; (2) when the inference is manifestly mistaken,
absurd or impossible; (3) when there is a grave abuse of discretion; (4) when the presence of each
other as required by law. " Specifically, We affirm that on April 15, 1961 the testatrix Isabel Gabriel,
together with Matilde Orobia, Celso Gimpaya and his wife Maria Gimpaya, and a photographer
proceeded in a car to the office of Atty. Cipriano Paraiso at the Bank of P.I. Building, Manila in the
morning of that day; that on the way, Isabel Gabriel obtained a medical certificate from one Dr.
Chikiamko which she gave to Atty. Paraiso upon arriving at the latter's office and told the lawyer that
she wanted her will to be made; that Atty. Paraiso asked Isabel Gabriel to dictate what she wanted to
be written in the will and the attorney wrote down the dictation of Isabel Gabriel in Tagalog, a
language known to and spoken by her; that Atty. Paraiso read back to her what he wrote as dictated
and she affirmed their correctness; the lawyer then typed the will and after finishing the document, he
read it to her and she told him that it was alright; that thereafter, Isabel Gabriel signed her name at
the end of the will in the presence of the three witnesses Matilde Orobia, Celso Gimpaya and Maria
Gimpaya and also at the left-hand margin of each and every page of the document in the presence
also of the said three witnesses; that thereafter Matilde Orobia attested the will by signing her name
at the end of the attestation clause and at the left-hand margin of pages 1, 2, 3 and 5 of the document
in the presence of Isabel Gabriel and the other two witnesses, Celso Gimpaya and Maria Gimpaya;
then, Celso Gimpaya signed also the will at the bottom of the attestation clause and at the left-hand
margin of the other pages of the document in the presence of Isabel Gabriel, Matilde Orobia and
Maria Gimpaya; that Maria Gimpaya followed suit, signing her name at the foot of the attestation
clause and at the left-hand margin of every page in the presence of Isabel Gabriel, Matilde Orobia and
Celso Gimpaya; that thereafter, Atty. Paraiso notarized the will as Page No. 94, Book No. IV, Series of
1961, in his Notarial Register. On the occasion of the execution and attestation of the will, a
photographer took pictures, one Exhibit "G", depicting Matilde Orobia, the testatrix Isabel Gabriel,
Celso Gimpaya, Maria Gimpaya and Atty. Paraiso, taken on said occasion of the signing of the will, and
another, Exhibit "H", showing Matilde Orobia signing testimony that he had earlier advised Isabel
Gabriel to bring with her at least the Mayor and a Councilor of Navotas, Rizal to be her witnesses for
he did not know beforehand the identities of the three attesting witnesses until the latter showed up
at his law office with Isabel Gabriel on April 15, 1961. Atty. Paraiso's claim-which was not controverted
that he wrote down in his own hand the date appearing on page 5 of Exhibit "F" dissipates any
lingering doubt that he prepared and ratified the will on the date in question."
It is also a factual finding of the Court of Appeals in holding that it was credible that Isabel Gabriel
could have dictated the will, Exhibit "F", without any note or document to Atty. Paraiso as against the
contention of petitioner that it was incredible. This ruling of the respondent court is fully supported by
the evidence on record as stated in the decision under review, thus: "Nothing in the record supports
the trial court's unbelief that Isabel Gabriel dictated her will without any note or document to Atty.
Paraiso. On the contrary, all the three attesting witnesses uniformly testified that Isabel Gabriel
dictated her will to Atty. Paraiso and that other than the piece of paper that she handed to said lawyer
she had no note or document. This fact jibes with the evidence which the trial court itself believed
was unshaken that Isabel Gabriel was of sound disposing memory when she executed her will.
Exhibit "F" reveals only seven (7) dispositions which are not complicated but quite simple. The first was
Isabel Gabriel's wish to be interred according to Catholic rites; the second was a general directive to
pay her debts if any; the third provided for P1,000.00 for her sister Praxides Gabriel Vda. de Santiago
and P2,000.00 for her brother Santiago Gabriel; the fourth was a listing of her 13 nephews and nieces
including oppositor-appellee Rizalina Gabriel and the amount for each legatee; the fifth was the
institution of the petitioner-appellant, Lutgarda Santiago as the principal heir mentioning in general
terms seven (7) types of properties; the sixth disposed of the remainder of her estate which she willed
in favor of appellant Lutgarda Santiago but prohibiting the sale of such properties to anyone except in
extreme situations in which judgment is based on a misapprehension of facts; (5) when the findings of
fact are conflicting; (6) when the Court of Appeals, in making its findings, went beyond the issues of
the case and the same is contrary to the admissions of both appellant and appellee. (Roque vs. Buan,
et al., G.R. No. L-22459, Oct. 31, 1967; Ramos vs. Pepsi Cola Bottling Co., G.R. No. L-22533, Feb. 9,
1967; Hilario, Jr. vs. City of Manila, G.R. No. L-19570; Sept. 14, 1967).
Petitioner's insistence is without merit. We hold that the case at bar does not fall within any of the
exceptions enumerated above. We likewise hold that the findings of fact of the respondent appellate
court are fully supported by the evidence on record. The conclusions are fully sustained by substantial
evidence. We find no abuse of discretion and We discern no misapprehension of facts. The respondent
Court's findings of fact are not conflicting. Hence, the well-established rule that the decision of the
Court of Appeals and its findings of fact are binding and conclusive and should not be disturbed by this
Tribunal and it must be applied in the case at bar in its full force and effect, without qualification or
reservation. The above holding simply synthesizes the resolutions we have heretofore made in respect
to petitioner's previous assignments of error and to which We have disagreed and, therefore, rejected.
The last assignments of error of petitioner must necessarily be rejected by Us as We find the
respondent Court acted properly and correctly and has not departed from the accepted and usual
course of judicial proceedings as to call for the exercise of the power of supervision by the Supreme
Court, and as We find that the Court of Appeals did not err in reversing the decision of the trial court
and admitting to probate Exhibit "F", the last will and testament of the deceased Isabel Gabriel.
We rule that the respondent Court's factual findings upon its summation and evaluation of the
evidence on record is unassailable that: "From the welter of evidence presented, we are convinced
that the will in question was executed on April 15, 1961 in the presence of Matilde Orobia, Celso
Gimpaya and Maria Gimpaya signing and witnessing the same in the will on a table with Isabel Gabriel,
Celso Gimpaya and Maria Gimpaya sitting around the table. Atty. Paraiso, after finishing the notarial
act, then delivered the original to Isabel Gabriel and retained the other copies for his file and notarial
register. A few days following the signing of the will, Isabel Gabriel, Celso Gimpaya and another
photographer arrived at the office of Atty. Paraiso and told the lawyer that she wanted another
picture taken because the first picture did not turn out good. The lawyer told her that this cannot be
done because the will was already signed but Isabel Gabriel insisted that a picture be taken, so a
simulated signing was performed during which incident Matilde Orobia was not present." Cdpr
Petitioner's exacerbation centers on the supposed incredibility of the testimonies of the witnesses for
the proponent of the will, their alleged evasions, inconsistencies and contradictions. But in the case at
bar, the three instrumental witnesses who constitute the best evidence of the will-making have
testified in favor of the probate of the will. So has the lawyer who prepared it, one learned in the law
and long in the practice thereof, who thereafter notarized it. All of them are disinterested witnesses
who stand to receive no benefit from the testament. The signatures of the witnesses and the testatrix
have been identified on the will and there is no claim whatsoever and by anyone, much less the
petitioner, that they were not genuine. In the last and final analysis, the herein conflict is factual and
we go back to the rule that the Supreme Court cannot review and revise the findings of facts of the
respondent Court of Appeals.
WHEREFORE, IN VIEW OF THE FOREGOING, the judgment appealed from is hereby AFFIRMED, with
costs against the petitioner.
SO ORDERED.
Teehankee, Makasiar, De Castro and Herrera, JJ., concur.
||| (Gonzales v. Court of Appeals, G.R. No. L-37453, May 25, 1979)

SECOND DIVISION
[G.R. No. 76464. February 29, 1988.]
TESTATE ESTATE OF THE LATE ADRIANA MALOTO,
ALDINA MALOTO CASIANO, CONSTANCIO MALOTO, PURIFICACION
MIRAFLOR, ROMAN CATHOLIC CHURCH OF MOLO, AND ASILO DE
MOLO, petitioners, vs.COURT OF APPEALS, PANFILO MALOTO AND
FELINO MALOTO, respondents.
SYLLABUS
1. CIVIL LAW; SUCCESSION; WILLS; REVOCATION THEREOF; PHYSICAL ACT OF DESTRUCTION; ANIMUS
REVOCANDI, A NECESSARY ELEMENT. The physical act of destruction of a will, like burning in this
case, does not per se constitute an effective revocation, unless the destruction is coupled with animus
revocandi on the part of the testator. It is not imperative that the physical destruction be done by the
testator himself. It may be performed by another person but under the express direction and in
the presence of the testator. Of course, it goes without saying that the document destroyed must be
the will itself. In this case, while animus revocandi, or the intention to revoke, may be conceded, for
that is a state of mind, yet that requisite alone would not suffice. "Animus revocandi is only one of the
necessary elements for the effective revocation of a last will and testament. The intention to revoke
must be accompanied by the overt physical act of burning, tearing, obliterating, or cancelling the will
carried out by the testator or by another person in his presence and under his express direction.
2. REMEDIAL LAW; CIVIL ACTIONS; RES JUDICATA; ELEMENTS. For a judgment to be a bar to a
subsequent case, the following requisites must concur: (1) the presence of a final former judgment; (2)
the former judgment was rendered by a court having jurisdiction over the subject matter and the
parties; (3) the former judgment is a judgment on the merits; and (4) there is, between the first and
the second action, identity of parties, of subject matter, and of cause of action. We do not find here
the presence of all the enumerated requisites.
3. ID.; ID.; ID.; DOCTRINE NOT APPLICABLE IN CASE AT BAR. There is yet, strictly speaking, no final
judgment rendered insofar as the probate of Adriana Maloto's will is concerned. The decision of the
trial court in Special Proceeding No. 1736, although final, involved only the intestate settlement of the
estate of Adriana. As such, that judgment could not in any manner be construed to be final with
respect to the probate of the subsequently discovered will of the decedent. Neither is it a judgment on
the meritsof the action for probate. This is understandably so because the trial court, in the intestate
proceeding, was without jurisdiction to rule on the probate of the contested will. After all, an action
for probate, as it implies, is founded on the presence of a will and with the objective of proving its due
execution and validity, something which can not be properly done in an intestate settlement ofestate
proceeding which is predicated on the assumption that the decedent left no will. Thus, there is
likewise no identity between the cause of action in intestate proceeding and that in an action for
probate. Be that as it may, it would be remembered that it was precisely because of our ruling in G.R.
No. L-30479 that the petitioners instituted this separate action for the probate of the late
Adriana Maloto's will. Hence, on these grounds alone, the position of the private respondents on this
score can not be sustained.
D E C I S I O N
SARMIENTO, J p:
This is not the first time that the parties to this case come to us. In fact, two other cases directly
related to the present one and involving the same parties had already been decided by us in the past.
In G.R. No. L-30479, 1 which was a petition for certiorari and mandamus instituted by the petitioners
herein, we dismissed the petition ruling that the more appropriate remedy of the petitioners is a
separate proceeding for the probate of the will in question. Pursuant to the said ruling, the petitioners
commenced in the then Court of First Instance of Iloilo, Special Proceeding No. 2176, for the
probate of the disputed will, which was opposed by the private respondents presently, Panfilo and
Felino, both surnamed Maloto. The trial court dismissed the petition on April 30, 1970. Complaining
against the dismissal, again, the petitioners came to this Court on a petition for review by
certiorari. 2 Acting on the said petition, we set aside the trial court's order and directed it to proceed
to hear the case on the merits. The trial court, after hearing, found the will to have already been
revoked by the testatrix. Adriana Maloto, and thus, denied the petition. The petitioners appealed the
trial court's decision to the Intermediate Appellate Court which, on June 7, 1985, affirmed the order.
The petitioners' motion for reconsideration of the adverse decision proved to be of no avail, hence,
this petition.
For a better understanding of the controversy, a factual account would be a great help.
On October 20, 1963, Adriana Maloto died leaving as heirs her niece and nephews, the petitioners
Aldina Maloto-Casiano and Constancio Maloto, and the private respondents Panfilo Maloto and
Felino Maloto. Believing that the deceased did not leave behind a last will and testament, these four
heirs commenced on November 4, 1963 an intestate proceeding for the settlement oftheir aunt's
estate. The case was instituted in the then Court of First Instance of Iloilo and was docketed as Special
Proceeding No. 1736. However, while the case was still in progress, or to be exact on February 1, 1964,
the parties Aldina, Constancio, Panfilo, and Felino executed an agreement of extrajudicial
settlement of Adriana's estate. The agreement provided for the division ofthe estate into four equal
parts among the parties. The Malotos then presented the extrajudicial settlement agreement to the
trialcourt for approval which the court did on March 21, 1964. That should have signalled the
end of the controversy, but, unfortunately, it had not.
Three years later, or sometime in March 1967, Atty. Sulpicio Palma, a former associate of Adriana's
counsel, the late Atty. Eliseo Hervas, discovered a document entitled "KATAPUSAN NGA PAGBULUT-AN
(Testamento)," dated January 3, 1940, and purporting to be the last will and testament of Adriana.
Atty. Palma claimed to have found the testament, the original copy, while he was going through some
materials inside the cabinet drawer formerly used by Atty. Hervas. The document was submitted to
the office ofthe clerk of the Court of First Instance of Iloilo on April 1, 1967. Incidentally, while Panfilo
and Felino are still named as heirs in the said will, Aldina and Constancio are bequeathed much bigger
and more valuable shares in the estate of Adriana than what they received by virtue of the
agreement of extrajudicial settlement they had earlier signed. The will likewise gives devises and
legacies to other parties, among them being the petitioners Asilo de Molo, the Roman Catholic
Church of Molo, and Purificacion Miraflor.
Thus, on May 24, 1967, Aldina and Constancio, joined by the other devisees and legatees named in the
will, filed in Special Proceeding No. 1736 a motion for reconsideration and annulment of the
proceedings therein and for the allowance of the will. When the trial court denied their motion, the
petitioner came to us by way of a petition for certiorari and mandamus assailing the orders of the
trial court. 3 As we stated earlier, we dismissed that petition and advised that a separate proceeding
for the probateof the alleged will would be the appropriate vehicle to thresh out the matters raised by
the petitioners.
Significantly, the appellate court while finding as inconclusive the matter on whether or not the
document or papers allegedly burned by the househelp of Adriana, Guadalupe Maloto Vda. de Coral,
upon instructions of the testatrix, was indeed the will, contradicted itself and found that the will had
been revoked. The respondent court stated that the presence of animus revocandiin the
destruction of the will had, nevertheless, been sufficiently proven. The appellate court based its
finding on the facts that the document was not in the two safes in Adriana's residence, by the testatrix
going to the residence of Atty. Hervas to retrieve a copyof the will left in the latter's possession, and,
her seeking the services of Atty. Palma in order to have a new will drawn up. For reasons shortly to be
explained, we do not view such facts, even considered collectively, as sufficient bases for the
conclusion that Adriana Maloto's will had been effectively revoked.
There is no doubt as to the testamentary capacity of the testatrix and the due execution of the will.
The heart of the case lies on the issue as to whether or not the will was revoked by Adriana.
The provisions of the new Civil Code pertinent to the issue can be found in Article 830.
Art. 830. No will shall be revoked except in the following cases:
(1) By implication of law; or
(2) By some will, codicil, or other writing executed as provided in case of wills:
or
(3) By burning, tearing, cancelling, or obliterating the will with the
intention of revoking it, by the testator himself, or by some other person in his
presence, and by his express direction. If burned, torn, cancelled, or
obliterated by some other person, without the express direction of the
testator, the will may still be established, and the estate distributed in
accordance therewith, if its contents, and due execution, and the fact of its
unauthorized destruction, cancellation, or obliteration are established
according to the Rules of Court. (Emphasis Supplied.)
It is clear that the physical act of destruction of a will, like burning in this case, does not per
se constitute an effective revocation, unless the destruction is coupled with animus revocandi on the
part of the testator. It is not imperative that the physical destruction be done by the testator himself.
It may be performed by another person but under the express direction and in thepresence of the
testator. Of course, it goes without saying that the document destroyed must be the will itself.

In this case, while animus revocandi, or the intention to revoke, may be conceded, for that is a
state of mind, yet that requisite alone would not suffice. "Animus revocandi is only one of the
necessary elements for the effective revocation of a last will and testament. The intention to revoke
must be accompanied by the overt physical act of burning, tearing, obliterating, or cancelling the will
carried out by the testator or by another person in his presence and under his express direction. There
is paucity ofevidence to show compliance with these requirements. For one, the document or papers
burned by Adriana's maid, Guadalupe, was not satisfactorily established to be a will at all, much less
the will of Adriana Maloto. For another, the burning was not proven to have been done under the
express direction of Adriana. And then, the burning was not in her presence. Both witnesses,
Guadalupe and Eladio, were one in stating that they were the only ones present at the place where the
stove (presumably in the kitchen) was located in which the papers proffered as a will were burned.
The respondent appellate court in assessing the evidence presented by the private respondents as
oppositors in the trial court, concluded that the testimony of the two witnesses who testified in
favor of the will's revocation appear "inconclusive." We share the same view. Nowhere in the records
before us does it appear that the two witnesses, Guadalupe Vda. de Corral and Eladio Itchon, both
illiterates, were unequivocably positive that the document burned was indeed Adriana's will.
Guadalupe, we think, believed that the papers she destroyed was the will only because, according to
her, Adriana told her so. Eladio, on the other hand, obtained his information that the burned
document was the will because Guadalupe told him so, thus, his testimony on this point is double
hearsay.
At this juncture, we reiterate that "(it) is an important matter of public interest that a purported will is
not denied legalization on dubious grounds. Otherwise, the very institution of testamentary succession
will be shaken to its very foundations . . . " 4
The private respondents in their bid for the dismissal of the present action for probate instituted by
the petitioners argue that the same is already barred by res adjudicata. They claim that this bar was
brought about by the petitioners' failure to appeal timely from the order dated November 16,
1968 of the trial court in the intestate proceeding (Special Proceeding No. 1736) denying their
(petitioners') motion to reopen the case, and their prayer to annul the previous proceedings therein
and to allow the last will and testament of the late Adriana Maloto. This is untenable.
The doctrine of res adjudicata finds no application in the present controversy. For a judgment to be a
bar to a subsequent case, the following requisites must concur: (1) the presence of a final former
judgment; (2) the former judgment was rendered by a courthaving jurisdiction over the subject matter
and the parties; (3) the former judgment is a judgment on the merits; and (4) there is, between the
first and the second action, identity of parties, of subject matter, and of cause of action. 5 We do not
find here the presence of all the enumerated requisites.
For one, there is yet, strictly speaking, no final judgment rendered insofar as the
probate of Adriana Maloto's will is concerned. The decision of the trial court in Special Proceeding No.
1736, although final, involved only the intestate settlement of the estate ofAdriana. As such, that
judgment could not in any manner be construed to be final with respect to the probate of the
subsequently discovered will of the decedent. Neither is it a judgment on the merits of the action for
probate. This is understandably so because the trial court, in the intestate proceeding, was without
jurisdiction to rule on the probate of the contested will. 6 After all, an action for probate, as it implies,
is founded on the presence of a will and with the objective of proving its due execution and validity,
something which can not be properly done in an intestate settlement of estate proceeding which is
predicated on the assumption that the decedent left no will. Thus, there is likewise no identity
between the cause of action in intestate proceeding and that in an action for probate. Be that as it
may, it would be remembered that it was precisely because of our ruling in G.R. No. L-30479 that the
petitioners instituted this separate action for the probate of the late Adriana Maloto's will. Hence, on
these grounds alone, the position of the private respondents on this score can not be sustained.
One last note. The private respondents point out that revocation could be inferred from the fact that
"(a) major and substantial bulk of the properties mentioned in the will had been disposed of; while an
insignificant portion of the properties remained at the time of death (of the testatrix); and,
furthermore, more valuable properties have been acquired after the execution of the will on January
3, 1940." 7 Suffice it to state here that as these additional matters raised by the private respondents
are extraneous to this special proceeding, they could only be appropriately taken up after the will has
been duly probated and a certificate of its allowance issued.
WHEREFORE, judgment is hereby rendered REVERSING and SETTING ASIDE the Decision dated June 7,
1985 and the Resolution dated October 22, 1986, of the respondent Court of Appeals, and a new one
ENTERED for the allowance of Adriana Maloto's last will and testament. Costs against the private
respondents.
This Decision is IMMEDIATELY EXECUTORY.
SO ORDERED.
Yap, Melencio-Herrera and Paras JJ., concur.
Padilla, J., took no part in the deliberation.
||| (Testate Estate of Maloto v. Court of Appeals, G.R. No. 76464, February 29, 1988)

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. Balderrama, Crispn D. Baizas and Roberto H. Benitez for appellant.
Arturo M. Tolentino for appellee.
SYLLABUS
1. HOLOGRAPHIC WILLS; PROBATE OF; EXECUTION AND CONTENTS OF WILL, HOW
PROVED. 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.
D E C I S I O N
BENGZON, J p:
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 these 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 pagiisip, ay
nagsasalaysay na ang aking kayamanan sa bayan ng Pulilan, Bulacan ay aking
ipinamamana sa aking mga kamaganakang 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 pang
lugar ay aking ipinamamana sa aking asawang si Ildefonso 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 pagalang Felicidad Esguerra-Alto. At kung ito ay may
kakulagan 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 owned 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 permited 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 authenticity (Abangan vs.
Abangan, 40 Phil., 476) and to avoid that 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. Ist Supp. No. 3 p. 194.).
Authenticity and due execution is the dominant requirement 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 of 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 decidein 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 llenaron 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 su adveracion y protocolizacion;
y como consecuencia ineludible de ello, forzoso es affirmar que el de autos
carece de validez y aficacia, por no estar firmado 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 Vl 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 lend 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 whole 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 factwhich 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.
||| (Gan v. Yap, G.R. No. L-12190, August 30, 1958)

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, MARCELARODELAS, petitioner-
appellant, vs. AMPARO ARANZA, ET AL., oppositors-appellees, ATTY.
LORENZO SUMULONG, intervenor.
Luciano A. Joson for petitioner-appellant.
Cesar C. Paralejo for oppositor-appellee.
SYNOPSIS
The probate court ordered the dismissal of appellant's petition for the
allowance of the holographic will of deceased Ricardo B. Bonilla on the ground that the
alleged photostatic copy of the will which was presented for probate, cannot stand in
lieu of the lost original, for the law regards the document itself as the material proof of
the authenticity of the said will, citing the case of Gan vs. Yap, 104 Phil. 509, 522. On
appeal, the only question is whether a holographic will which was lost or cannot be
found can be proved by means of a photostatic copy.
The Supreme Court, in setting aside the lower court's order of dismissal, held
that a photostatic or xerox copy of a lost or destroyed holographic will may be admitted
because the authenticity of the handwriting of the deceased can he determined by the
probate court, as comparison can be made with the standard writings of the testator.
Assailed order of dismissal, set aside.
SYLLABUS
1. CIVIL LAW; SUCCESSION; HOLOGRAPHIC WILLS; PROBATE THEREOF; DEFINITION. 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.
2. ID.; ID.; ID.; ID.; NUMBER OF WITNESSES REQUIRED. The probate of holographic wills 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.
3. ID.; ID.; ID.; ID.; NOT POSSIBLE WHERE ORIGINAL WILL HAS BEEN LOST OR DESTROYED AND NO
OTHER COPY IS AVAILABLE; REASON. If the holographic will has been lost or destroyed and no other
copy is available, the will cannot be probated because the best and only evidence is the handwriting of
the testator in said will. It is necessary that there be a comparison between sample handwritten
statements of the testator and the handwritten will.
4. ID.; ID.; ID.; ID.; ID.; PHOTOSTATIC COPY OR XEROX COPY MAY BE ALLOWED; CASE AT BAR. 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 Gan 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.
D E C I S I O N
RELOVA, J p:
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 holographic will itself, and not an alleged
copy thereof, must be produced, otherwise it would produce no
effect, as held in Gan 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 Gan 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 can
not 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
Gan 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.
||| (In Re: Bonilla v. Aranza, G.R. No. L-58509, December 07, 1982)

SECOND DIVISION
[G.R. No. 26317. January 29, 1927.]
Estate of Miguel Mamuyac, deceased. FRANCISCO GAGO, petitioner-
appellant, vs. CORNELIO MAMUYAC, AMBROSIO LARIOSA, FELICIANA
BAUZON, and CATALINA MAMUYAC, opponents-appellees.
Nicanor Tavora for appellant.
Jose Rivera for appellees.
SYLLABUS
1. WILLS, CANCELLATION OF; PRESUMPTION. The law does not require any
evidence of the revocation or cancellation of the will to be preserved. It therefore becomes
difficult at times to prove the cancellation or revocation of wills. The fact that such cancellation
or revocation has taken place must either remain unproved or be inferred from evidence
showing that after due search the original will cannot be found. Where a will which cannot be
found is shown to have been in the possession of the testator, when last seen, the presumption
is in the absence of other competent evidence, that the same was cancelled or destroyed. The
same presumption arises where it is shown that the testator had ready access to the will and it
cannot be found after his death. It will not be presumed that such will has been destroyed by any
other person without the knowledge or authority of the testator.
D E C I S I O N
JOHNSON, J p:
The purpose of this action was to obtain the probation of a last will and testament of
Miguel Mamuyac, who died on the 2d day of January, 1922, in the municipality of Agoo of the
Province of La Union. It appears from the record that on or about the 27th day of July, 1918, the
said Miguel Mamuyac executed a last will and testament (Exhibit A). In the month of January,
1922, the said Francisco Gago presented a petition in the Court of First Instance of the Province
of La Union for the probation of that will. The probation of the same was opposed by Cornelio
Mamuyac, Ambrosio Lariosa, Feliciana Bauzon, and Catalina Mamuyac (civil cause No. 1144,
Province of La Union). After hearing all of the parties the petition for the probation of said will
was denied by the Honorable C. M. Villareal on the 2d day of November, 1923, upon the ground
that the deceased had on the 16th day of April, 1919, executed a new will and testament.
On the 21st day of February, 1925, the present action was commenced. Its purpose
was to secure the probation of the said will of the 16th day of April, 1919 (Exhibit 1). To said
petition Cornelio Mamuyac, Ambrosio Lariosa, Feliciana Bauzon, and Catalina Mamuyac
presented their oppositions, alleging (a) that the said will is a copy of the second will and
testament executed by the said Miguel Mamuyac; (b) that the same had been cancelled and
revoked during the lifetime of Miguel Mamuyac and (c) that the said will was not the last will and
testament of the deceased Miguel Mamuyac.
Upon the issue thus presented, the Honorable Anastasio R. Teodoro, judge, after
hearing the respective parties, denied the probation of said will of April 16, 1919, upon the
ground that the same had been cancelled and revoked in the year 1920. Judge Teodoro, after
examining the evidence adduced, found that the following facts had been satisfactorily proved:
"That Exhibit A is a mere carbon copy of its original which
remained in the possession of the deceased testator Miguel Mamuyac, who
revoked it before his death as per testimony of witnesses Jose Fenoy, who
typed the will of the testator on April 16, 1919, and Carlos Bejar, who saw on
December 30, 1920, the original of Exhibit A (will of 1919) actually cancelled
by the testator Miguel Mamuyac, who assured Carlos Bejar that inasmuch as
he had sold him a house and the land where the house was built, he had to
cancel it the will of 1919), executing thereby a new testament. Narcisa Gago
in a way corroborates the testimony of Jose Fenoy, admitting that the will
executed by the deceased (Miguel Mamuyac) in 1919 was found in the
possession of father Miguel Mamuyac. The opponents have successfully
established the fact that father Miguel Mamuyac had executed in 1920
another will. The same Narcisa Gago, the sister of the deceased, who was
living in the house with him, when cross-examined by attorney for the
opponents, testified that the original of Exhibit A could not be found. For the
foregoing consideration and for the reason that the original of Exhibit A has
been cancelled by the deceased father Miguel Mamuyac, the court disallows
the probate of Exhibit A for the applicant." From that order the petitioner
appealed.
The appellant contends that the lower court committed an error in not finding from
the evidence that the will in question had been executed with all the formalities required by the
law; that the same had been revoked and cancelled in 1920 before his death; that the said will
was a mere carbon copy and that the oppositors were not estopped from alleging that fact.
With reference to the said cancellation, it may be stated that there is positive proof,
not denied, which was accepted by the lower court, that the will in question had been cancelled
in 1920. The law does not require any evidence of the revocation or cancellation of a will to. be
preserved. It therefore becomes difficult at times to prove the revocation or cancellation of wills.
The fact that such cancellation or revocation has taken place must either remain unproved or be
inferred from evidence showing that after due search the original will cannot be found. Where a
will which cannot be found is shown to have been in the possession of the testator, when last
seen, the presumption is, in the absence of other competent evidence, that the same was
cancelled or destroyed. The same presumption arises where it is shown that the testator had
ready access to the will and it cannot be found after his death. It will not be presumed that such
will has been destroyed by any other person without the knowledge or authority of the testator.
The force of the presumption of cancellation or revocation by the testator, while varying greatly,
being weak or strong according to the circumstances, is never conclusive, but may be overcome
by proof that the will was not destroyed by the testator with intent to revoke it.
In view of the fact that the original will of 1919 could not be found after the death of
the testator Miguel Mamuyac and in view of the positive proof that the same had been
cancelled, we are forced to the conclusion that the conclusions of the lower court are in
accordance with the weight of the evidence. In a proceeding to probate a will the burden of
proof is upon the proponent clearly to establish not only its execution but its existence. Having
proved its execution by the proponents, the burden is on the contestant to show that it has been
revoked. In a great majority of instances in which wills are destroyed for the purpose of revoking
them there is no witness to the act of cancellation or destruction and all evidence of its
cancellation perishes with the testator. Copies of wills should be admitted by the courts with
great caution. When it is proven, however, by proper testimony that a will was executed in
duplicate and each copy was executed with all the formalities and requirements of the law, the
duplicate may be admitted in evidence when it is made to appear that the original has been lost
and was not cancelled or destroyed by the testator. (Borromeo vs. Casquijo, G.R. No. 26063.) 1
After a careful examination of the entire record, we are fully persuaded that the will
presented for probate had been cancelled by the testator in 1920. Therefore the judgment
appealed from is hereby affirmed. And without any finding as to costs, it is so ordered.
Street, Malcolm, Villamor, Ostrand, Romualdez and Villa-Real, JJ., concur.
||| (Gago v. Mamuyac, G.R. No. 26317, January 29, 1927)

EN BANC
[G.R. No. L-18788. January 31, 1964.]
ROMULO LOPEZ, ET AL., plaintiffs-appellants, vs. LUIS GONZAGA, ET
AL., defendants. LUIS GONZAGA and ASUNCION GONZAGA, defendants-
appellants.
Lakandola G. Lopez and Romulo Lopez for plaintiffs-appellants.
Amalia K. del Rosario for defendants-appellants.
SYLLABUS
1. WILLS; PROBATE; ORDER OF ADJUDICATION BY COURT DISTINGUISHED FROM TESTAMENTARY
INSTITUTION OF HEIR; CASE AT BAR. The order of adjudication is the judicial recognition that in
appointing a person as her only heir the testatrix did not contravene the law, and that the heir was in
no way disqualified to inherit; just as a final order admitting a will to probate concludes all and sundry
from thereafter contending that statutory formal requirements have not been observed in executing
the testament. In the case at bar, instead of contradicting the testamentary institution of heir, the
order of adjudication confirms it.
2. ID.; ID.; NOTICE TO INTERESTED PARTIES; RECORDING OF JUDICIAL ORDER SUFFICIENT. The
failure of the defendant heir, in the case at bar, to file with the Register of Deeds a certified copy of his
letters of administration and the will, as provided in Sec. 90 of Act 496, and to record the attested
copies of the will and of the allowance thereof by the court under Section 624 of Act 190, does not
negate the validity of the judgment or decree of probate nor the rights of the devises under the will,
because said Section 90 refers to the dealings with registered lands by an administrator, and
defendant heir in the case at bar sought and obtained the change in the certificates of title in his own
behalf and capacity, and the recording of the judicial orders sufficed as notice to interested parties,
and was a substantial compliance with the required recording of the will itself.
3. ID.; ID.; ADMINISTRATOR AS TRUSTEE; TERMINATION OF TRUSTS; BY APPROVAL OF FINAL ACCOUNT
AND BY TRANSFER OF TITLE TO FORMER TRUSTEE THRU REPUDIATION AND PRESCRIPTION. The
contention that defendant-appellee in the case at bar, having been appointed administrator, must be
deemed a trustee up to the present is infantile, because first, no administration could continue to exist
after the order of the court had approved the final account, adjudicated the property to the only heir,
cancelled the bond of the administrator, and ordered the case "archivado el mismo por terminado,"
and no proof exists that the proceedings were ever reopened; and secondly, the transfer of the
certificates of title to the defendant's own name in 1936 would constitute an open and clear
repudiation of any trust, and the lapse of more than twenty years' open and adverse possession as
owner would certainly suffice to vest title by prescription in the defendant-appellee, since appellants,
who knew of the death of the testatrix in 1935, never made any move to require the defendant to
reconvey the property.
4. ID.; ID.; DUE PROCESS; DAY IN COURT NOT DENIED TO PARTIES REPRESENTED BY COUNSEL.
Where the authority of their counsel to appear for them was never questioned by appellants until the
adverse decision was rendered by the court below, their contention that they were denied their day in
court is incredible, and appears to be but a last minute attempt to escape the adverse effect of the
appealed decision.
D E C I S I O N
REYES, J.B.L., J p:
Joint and direct appeal by both parties-plaintiffs and parties-defendants from the decision of the Court
of First Instance of Negros Occidental (in its Civil Case No. 5033) to this Supreme Court, because the
properties involved are valued at more than P200,000.00. The appealed decision dismissed the
petition of plaintiffs (appellants) for partition and cancellation of titles of registered lands, and ordered
them to pay defendants (appellees) P1,000.00. by way of attorney's fees, but refused to award moral
damages in favor of the defendants.
The original petition was filed with the court a quo on 6 October 1958, alleging among other things,
that one Soledad Gonzaga Vda. de Ferrer died intestate on 11 April 1935 without any issue and leaving
real and personal properties worth P400,000.00; that she was survived by the plaintiffs, who are her
nearest of kin, being her brothers, sisters, nephews, and nieces; that during the lifetime of the
deceased, she expressed the wish that as long as her brother, Luis Gonzaga, the principal defendant,
was engaged in his coconut oil experimentation he could use the products and rentals of her
properties in furtherance of his experiments; that the said scientific venture by the said defendant was
discontinued when be became totally blind in October, 1955, in view of which the plaintiffs now ask a
partition of the estate and the cancellation of titles of lands allegedly fraudulently transferred by, and
in the name of, the defendant.
The defendant filed a motion to dismiss on the grounds of res judicata and non-inclusion of
indispensable parties. The plaintiffs amended their petition to include the omitted parties. After
hearing on the motion to dismiss, the court denied the said motion. Thereupon, the defendants filed
their answer repleading a denial as to the intestacy of the deceased, and alleging, among others, that a
will of Soledad Gonzaga Vda. de Ferrer instituted Luis Gonzaga as the sole heir to her entire estate,
and that the will was duly allowed and probated.
After trial, the court a quo rendered judgment, and both parties appealed, as aforesaid.
The genuineness of the following documents, and the jurisdiction of the court, with respect to them,
are not disputed:
"REPUBLIC OF THE PHILIPPINES
COURT OF FIRST INSTANCE OF ILOILO
11th Judicial District
December 11, 1958.
TO WHOM IT MAY CONCERN:
This is to certify that according to the records of this office there is no
Expediente No. 2163 entitled Estate of Doa Soledad Gonzaga Vda. de Ferrer,
as all pre-war records were burned, lost or destroyed during the World War II.
(Sgd) CIPRIANO
CABALUNA
Clerk of Court"
"UNITED STATES OF AMERICA
COMMONWEALTH OF THE PHILIPPINES
COURT OF FIRST INSTANCE
OF OCCIDENTAL NEGROS
18th Judicial District.
G.L.R.O. CAD. RECORD No. 214
LOTS NOS. 414 and 424
CAD. SURVEY OF MANAPLA
PETITION
Luis Gonzaga y Jesena through the undersigned attorney, to the Honorable
Court respectfully follows:
That Soledad Gonzaga Vda. de Ferrer is the registered owner of Lots Nos. 414
and 424, Cadastral Survey of Manapla, which parcel of land are described in
Transfer Certificate of Title Nos. 11460 and 13855, respectively.
That Soledad Gonzaga Vda. de Ferrer died on April 11, 1935, and she left all
her properties in favor of Luis Gonzaga y Jesena in her will, which will was
probated on May 17, 1935, in the Court of First Instance of Iloilo (Exp. No.
2163, Iloilo).
That the project of partition dated February 3, 1936, (Exp. No. 2163, Iloilo) a
copy of which is hereto attached in which the petitioner Luis Gonzaga y
Jesena is the only heir, was approved by the Honorable Court of Iloilo in its
order dated February 8, 1936, a copy of the said order is hereto attached.
WHEREFORE, in view of the foregoing, the petitioner respectfully prays the
Honorable Court to order the cancellation of Transfer Certificate of Title Nos.
11460 and 13855, Office of the Register of Deeds of Occidental Negros,
wherein Lots Nos. 414 and 424 are described, and in lieu thereof to issue
Transfer Certificate of Titles for Lots 414 and 424, Cadastral Survey of
Manapla, Occidental Negros, in favor of Luis Gonzaga y Jesena, single, of legal
age, Filipino and a resident of Manila, P. I.
Iloilo, Iloilo, for Bacolod, Occ. Neg. P. I. March 11, 1936.
(Sgd.) FRANCISCO S.
HORTILLAS
Attorney for the
petitioner
2 General Luna, Iloilo.
I, Francisco S. Hortillas, of legal age, after having been duly sworn, depose and
say: That I am the attorney for the petitioner in the above case, and that all
the allegations contained in the foregoing petition are true to the best of my
information and belief.
(Sgd) FRANCISCO
HORTILLAS
Subscribed and Sworn to before me this 11th day of March 1936. He
exhibited to me his cedula No. E-1250120, issued at Jaro, Iloilo, P.I., on
January 16, 1936.
(Sgd) ILLEGIBLE
NOTARY PUBLIC
Until Dec. 31, 1937
Doc. No. 49
Page No. 60
Book No. 1
Series of 1936
The Register of Deeds
Bacolod City, Occ. Negros
S i r :
Please take notice that on Saturday, March 21, 1936, at 8:00 a.m. or soon
thereafter as the undersigned may be heard, he will submit the foregoing
petition to this Honorable Court for approval.
(Sgd) FRANCISCO S.
HORTILLAS
I hereby certify that I have sent a copy of the foregoing petition to the
Register of Deeds of Occidental Negros evidenced by the registry receipt
hereto attached.
(Sgd) FRANCISCO S.
HORTILLAS
"UNITED STATES OF AMERICA
COMMONWEALTH OF THE PHILIPPINES
COURT OF FIRST INSTANCE OF ILOILO
17th Judicial District
TESTATE PROCEEDINGS OF
THE DECEASED SOLEDAD
GONZAGA VDA. DE FERRER, CIVIL CASE NO. 2163.
LUIS GONZAGA Y JESENA,
Petitioner.
PETITION FOR ADJUDICATION
The undersigned administrator to the Honorable Court respectfully states:
That the undersigned administrator, Luis Gonzaga y Jesena is the only heir
mentioned in the probated will of the late Sra. Soledad G. Vda. de Ferrer.
TOWN TITLE NO. PROVINCE VALUE
Manapla Trans. Cert. 8433 Occ. Neg. P25,230.00
Manapla Trans. Cert. 11460 Occ. Neg. 5,210.00
Manapla Trans. Cert. 13855 Occ. Neg. 7,310.00
Jaro Trans. Cert. 13051 Iloilo 510.00
Jaro Trans. Cert. 13054 Iloilo 500.00

P38,760.00
ACCOUNTS COLLECTIBLE AND CASH
Roman Sopena P1,100.00
Juan Sornito 330.00
Quintin Mejorada and others 2,800.00
Maria Ledesma and others 600.00
and Cash 1,018.54.
That there is a pending civil complaint against the administrator by
Consolacion G. de Lopez, et al., Civil Case No. 10321, Court of First Instance of
Iloilo, demanding payment of the sum of P833.40. The undersigned
administrator is willing to file a cash bond for the sum object of the complaint
in case this expediente will be closed before the trial of the Civil Case No.
10321, Iloilo.

Iloilo, P.I., February 3, 1936.
(Sgd.) FRANCISCO S.
HORTILLAS
Attorney for the
Administrator
2 General Luna, Iloilo
The Clerk of Court
Iloilo, Iloilo
S i r :
Please include the foregoing petition for adjudication in the calendar for
Saturday, February 8, 1936.
(Sgd.) FRANCISCO S.
HORTILLAS
A TRUE COPY:
(Sgd) TELESFORO GEDANG
Deputy Clerk of Court
17th Judicial District
Iloilo, P. I."
"ESTADOS UNIDOS DE AMERICA
COMMONWEALTH DE FILIPINAS
JUZGADO DE PRIMERA INSTANCIA DE
ILOILO
17.0 Distrito Judicial
TESTAMENTARIA GONZAGA
Expediente No. 2163.
AUTO
Previa prestacion por Luis Gonzaga y Jesena de una fianza por valor de
P1,000.00 que tendra por objecto responder al resultado de la causa civil No.
10321 de este Juzgado, titulada 'Consolacion G. de Lopez, et al.,
demandantes, contra Luis Gonzaga', se aprueba la cuenta final de fecha enero
29, 1936, asi como el proyecto de particion de fecha 3 del actual. Queda
cancelada la fianza prestada por el administrador en este expediente, y
archivado el mismo por terminado.
Asi se ordena.
Iloilo, Iloilo, febrero 8, 1936.
M. BUYSON
LAMPA
Juez.
A TRUE COPY:
(Sgd) TELESFORO GEDANG
Deputy Clerk of Court
17th Judicial District
Iloilo, P. I."
"ESTADOS UNIDOS DE AMERICA
MANCOMUNIDAD DE FILIPINAS
JUZGADO DE PRIMERA INSTANCIA DE
NEGROS OCCIDENTAL
18.0 Distrito Judicial
Expediente Cadastral No. 26 G.L.R.O. Cad. Rec.
ELGOBIERNO DE LAS ISLAS No. 214
FILIPINAS Lotes Nos. 414 y 424
Solicitante. CATASTRO DE MANAPLA
AUTO
Vista la peticion del solicitante Sr. Luis Gonzaga y Jesena, de fecha 11 de
marzo de 1936, el Juzgado, hallando de misma bien fundada;
Por el presente, ordena la cancelacion de los certificados de transferencia de
titulo Nos. 11460 y 13855, sobre los lotes Nos. 414 y 424, respectivamente,
del Catastro de Manapla, Negros Occidental, y la expedicion de otros a favor
de Luis Gozaga y Jesena, filipino, mayor de edad, soltero y vecino de la ciudad
de Manila, I. F, haciendose constar en los certificados que se han de expedir
todos los gravamenes que existen el los certificados de transferencia Nos.
11460 y 13855.
Asi se ordena.
Bacolod, Occ. Negros, 21 de marzo, 1936,
(FDO.)
BRAULIO
BAJASA
Juez.
"ESTADOS UNIDOS DE AMERICA
MANCOMUNIDAD DE FILIPINAS
JUZGADO DE PRIMERA INSTANCIA
DE NEGROS OCCIDENTAL
18.0 Distrito Judicial
EL GOBIERNO DE LAS Exp. de Reg. No. 72
ISLAS FILIPINAS, G.L.R.O. Rec, No. 10822
Solicitante Lote No, 313
LUIS GONZAGA Y JESENA, MANAPLA
Mocionante.
AUTO
Vista y considerada la mocion del solicitante Luis Gozaga y Jesena, de Fecha
11 de marzo de 1936, el Juzgado, hallando la misma bien fundada;
Por el presente, ordena la cancelacion del certificado de transferencia de
titulo No, 8422 sobre el Lote No. 313 del catastro de Manapla, Negros
Occidental, y la expedicion de otro a favor de Luis Gonzaga y Jesena, filipino,
mayor de edad; soltero y vecino de la ciudad de Manila, I.F., haciendose
constar en la certificado que se ha de expedir todos los gravamente que
existen en el certificado de transferencia candelado, se tuviere alguno.
Asi se ordena.
Bacolod, Occidental Negros, 21 de marzo, 1936.
(Sgd.)
BRAULIO
BEJASA
Juez.
BB/spm.
Received the foregoing document at 9:00 A.M. on May 7, 1936, and
registered under Act 496 as follows:
Day Book, Vol. 6, Entry No. 49684.
Inscribed on page 101 of Book Vol. 87 of Transfer Certificate of Title as
Certificate No. 21151.
Bacolod, Occ. Negros, May 7, 1936.
(Sgd.) MARIANO
COREOVA
Register of Deeds"
"ESTADOS UNIDOS DE AMERICA
MANCOMUNIDAD DE FILIPINAS
JUZGADO DE PRIMERA INSTANCIA DE
ILOILO
17.0 Distrito Judicial
G.L.R.O. RECORD NO. 9959
ZOTES NOS. 1129-B y 1129-C
SITUADO EN EL MUNICIPIO DE
JARO
AUTO
Vista la peticion de Luis Gonzaga y Jesena cancelacion de los Certificados de
Transferencia de titulo numeros 10051 y 13054, por las razones expuestas en
la misma, y encontrando el Juzgado la misma bien fundada, por la presente
ordena el Registrado de Titulos de la Provincial del Iloilo cancela los
Certificados de Transferencia de Titulos numeros 10051 y 13054 y expiden
otros en su lugar a nombre de Luis Gonzaga y Jesena, soltero, mayor de edad,
filipino y vecino de Manila, P.I.
Asi se ordena.
Iloilo, Iloilo, Marzo 25, 1936. M. BUYSON LAMPA
Juez
As a witness, the defendant's counsel, Atty. Amelia K. del Rosario, testified that the aforequoted
records of the probate court of Iloilo were discovered by her among the records of the cadastral court
in Negros Occidental.
Due to the destruction of the court and property records of Iloilo as a result of the last war, as attested
by the Clerk of Court, no will or probate order was produced, and neither were attested copies
registered with the Office of the Register of Deeds other than those previously copied in this opinion;
but the testimony of appellee and the copies of judicial pleadings and orders obtained by him from the
Registry of Deeds of Negros Occidental leave little room for doubt that Doa Soledad Gonzaga died
leaving a will instituting her nephew, the appellee Luis Gonzaga y Jesena, as her sole testamentary
heir, in default of forced heirs; that said will was duly probated in 1935 or 1936 by the Court of First
Instance of Iloilo in its Special Proceeding No. 2163; that the net residue of the estate was adjudicated
by the court to said appellee, subject only to a claim of Consolacion G. de Lopez for P1,000.00 (Exh. 2);
and that, thereafter, upon sworn petition of appellee, through his counsel, Francisco S. Hortillas, the
Courts of First Instance of Iloilo (Exhibit 12) and Occidental Negros (Exhibit 3) ordered the respective
Provincial Registers of Deeds to cancel the Certificates of Title standing then in the name of the
deceased Soledad Gonzaga, and in lieu thereof to issue new certificates in the name of appellee Luis
Gonzaga y Jesena, as admittedly was done. In the course of the years prior to the institution of this
case in 1958, appellee held the properties and dealt with them as sole owner, leasing, encumbering,
and selling some of them.
We can not fail to be impressed by the statements of attorney Francisco Hortillas, averring under oath
in clear and unmistakable terms, not only once but twice, before the Courts of First Instance of Iloilo
and Negros (Exhibits 1 and 9), that the deceased Doa Soledad, in her probated will, made Luis
Gonzaga y Jesena the sole heir to her properties. These manifestations are nigh conclusive, for the
reason that attorney Hortillas was himself married to Monserrat Gonzaga, a sister of Soledad, who
would have been one of the latter's heirs intestate had it not been for the testament in favor of the
appellee. It taxes credulity beyond all reason to imply (as appellants do) that attorney Hortillas,
violating family ties and affection, conspired with appellee to deprive his own wife and children (now
some of present appellants) of their lawful share by intestacy in the properties left by Doa Soledad, if
it were untrue that the latter had duly and properly bequeathed all her estate to appellee Luis
Gonzaga. The authenticity of the sworn petitions of the late attorney Hortillas (Exhibits a and 1) are
not impugned, and they were actually acted upon and granted by the two courts of first instance to
which he addressed his petitions.
Coupled with his undoubted possession as owner and with his own dominical acts exercised over the
former properties of Doa Soledad Gonzaga for twenty-two years (1936-1958), the exhibits
aforementioned constitute practically conclusive proof of the truth of appellee's defenses, as found by
the court below, despite the destruction of the original will and decree of probate.
Plaintiffs-appellants, however, assail the trial court's admission of the said court records on the ground
that defendant-appellee failed to lay proper basis, or predicate, for their admission. Granting that the
original will was destroyed with the court records in the last war, it is averred that appellee was duty-
bound to produce the copy that, according to appellee's deposition, was in the custody of Encarnacion
Gonzaga, as well as that left with attorney Hortillas. The argument is misleading. There is no proof that
copies of the will ever existed other than the one burned while in appellee's possession (Dep. p. 23),
Page 24 of the appellee's deposition is to the effect that
"My sister Encarnacion had the custody of the will because she was the one
who was at the bedside of my sister (referring to the testatrix Doa Soledad);
but by "the will" was obviously meant the one signed by the testatrix and the witnesses, not a
copy.
Similarly, the witness was asked,
"When you filed this petition through your lawyer for the probate of the will,
am I correct that you also presented a copy of the will?"
to which question the witness answered.
"The original was the one submitted".
From this answer, it certainly can not be inferred that Attorney Hortillas kept a copy of the
original submitted to the court.
Neither do we see that appellee was bound to call, or account, for the witnesses to the testament. He
was not trying to show that the will complied with the statutory requirements, but that the will had
been admitted to probate; and of course, the probate decree conclusively established the due
execution.
Appellants contend that if it were true that the will constituted Luis Gonzaga as sole heir, he had no
need to ask the court for an order of adjudication. There is no merit to this contention. The order of
adjudication is the judicial recognition that in appointing Luis as her only heir the testatrix did not
contravene the law, and that the heir was in no way disqualified to inherit; just as a final order
admitting a will to probate concludes all and sundry from thereafter contending that statutory formal
requirements have not been observed in executing the testament. Instead of contradicting the
testamentary institution of heir, the order of adjudication confirms it in this case. It may well be noted,
in passing, that the order of February 8, 1936 (Exhibit 1 or B) speaks of approval of a "project of
partition", while the petition of January 29, 1936 referred to therein spoke of an order of adjudication
to a single heir. Since the order made evident reference to the petition of January 29, we agree with
the court below that the difference in terminology was an inadvertent mistake. Anyway, appellants do
not claim under the will or the partition; their theory is that Doa Soledad Gonzaga died intestate.

The failure of the defendant, Luis Gonzaga, to file with the Register of Deeds a certified copy of his
letters of administration and the will, as provided in Section 90 of Act 496, and to record the attested
copies of the will and of the allowance thereof by the court under Section 624 of Act 190, does not
negate the validity of the judgment or decree of probate nor the rights of the devisee under the will.
Section 90 of Act 496 refers to the dealings with registered lands by an executor or administrator; and
while Luis Gonzaga was an administrator, this is beside the point, because his dealings with the lands,
if any, during his tenure as an administrator are not here in question. That the defendant sought
judicial orders to effect the transfers to his name of the certificates of title after the will was probated,
and succeeded in having them so transferred, are not "dealings" with the property as administrator
under section 90 of the Registration Act. The defendant sought and obtained the change in title in his
own behalf and capacity. Although the step taken is not exactly what Section 624 of Act 190 directs,
the same purpose was achieved that of notice to all strangers of the cause and nature of the
transfers; and it does not appear that anyone was prejudiced by the defect in registration complained
of. At any rate, the recording of the judicial orders sufficed as notice to interested parties, and was
substantial compliance with the required recording of the will itself. No one faced by the recorded
documents could ignore the reference therein to the probated testament; and the rule is that
knowledge of what might have been revealed by proper inquiry is imputable to the inquirer (cf. Emas
vs. De Zuzuarregui, 53 Phil. 197, 204).
As to the fact that Luis Gonzaga paid the inheritance taxes as "executor or administrator", the same is
of no importance. It is usual for an Administrator to pay these taxes, since by law no delivery of
properties can be made to the heirs until and unless the inheritance taxes are paid [Internal Revenue
Code, Section 95(c)].
The contention that defendant-appellee, having been appointed Administrator, must be deemed a
trustee up to the present is infantile. In the first place, no administration could continue to exist after
the order of February 8, 1936 had approved the final account, adjudicated the property to the only
heir, cancelled the bond of the administrator, and ordered the case "archivado el mismo por
terminado". No proof exists that the proceedings were ever reopened. Secondly, the transfer of the
certificates of title to Luis Gonzaga's own name in 1936 would constitute an open and clear
repudiation of any trust, and the lapse of more than twenty years' open and adverse possession as
owner would certainly suffice to vest title by prescription in the appellee, since appellants, who knew
of the death of Doa Soledad in 1935, never made any move to require Luis to reconvey the property,
or any part thereof. The lame explanation that Doa Soledad Gonzaga had expressed the wish that all
the income should go to Luis while he conducted experimental studies on coconut products is wholly
unconvincing as an excuse for the laches; his right to the income could not have blocked a partition of
the capital assets among appellants, if they had been at all entitled to them.
That some of the plaintiffs were denied their day in court is incredible, since all the plaintiffs were
represented by counsel Vicente Delfin, who claimed, and is presumed, to have been authorized to
appear in their behalf, and who did appear for them from the inception of the case until after the
lower court's decision was rendered. The authority of said counsel was never questioned until the
adverse decision was rendered by the court below; and the complainant's failure to appear by
themselves, or by other counsel, prior to the judgment is mute but eloquent proof that their allegation
that Delfin was not their attorney is but a last minute attempt to escape the adverse effect of the
appealed decision, a maneuver that deserves no consideration.
Coming to the defendants' appeal: It is grounded on the disallowance of attorney's fees, expenses, and
moral damages. The lower court granted only P1,000.00 for attorney's fees, but the defendants urge
that the amount should be P41,000.00, based on an agreement of P1,000.00 plus 10% of the value of
the properties if the case is decided in their favor. The other expenses refer to transportation, board
and lodging, stenographic notes, photostatic copies of exhibits, securing documents, and taking of
deposition in the sum of P1,205.00. Moral damages asked is P100,000.00.
The award of attorney's fees against the adverse party is essentially discretionary with the trial court
(Francisco vs. GSIS, L-18287, 30 March 1963), and, in the absence of an abuse of discretion, the same
should not be disturbed. The other expenses, unless recoverable as judicial costs, cannot be allowed
because the complaint, although unmeritorious, is not clearly unfounded; moral damages, likewise,
are not allowable because the suit is not a malicious prosecution under No. 8 of Article 2219 of the
Civil Code. The issue is one primarily addressed to the discretion of the court below, which we are not
inclined to disturb.
FOR THE FOREGOING REASONS, the appealed decision is hereby affirmed, with costs against the
plaintiffs-appellants.
Bengzon, C . J ., Padilla, Bautista Angelo, Labrador, Concepcion, Barrera, Paredes, Dizon,
Regala and Makalintal, JJ ., concur.
||| (Lopez v. Gonzaga, G.R. No. L-18788, January 31, 1964)

THIRD DIVISION
[G.R. No. 110427. February 24, 1997.]
The Incompetent, CARMEN CAIZA, represented by her legal guardian,
AMPARO EVANGELISTA, petitioner,vs. COURT OF APPEALS (SPECIAL FIRST
DIVISION), PEDRO ESTRADA and his wife, LEONORA ESTRADA,respondents.
Priscilla A. Villacorta for petitioner.
Montilla Law Office for private respondents.
SYLLABUS
1. REMEDIAL LAW; JURISDICTION; DETERMINED BY THE ALLEGATIONS IN THE COMPLAINT. It is
axiomatic that what determines the nature of an action as well as which court has jurisdiction over it,
are the allegations of the complaint and the character of the relief sought. An inquiry into the
averments of the amended complaint in the Court of origin is thus in order.
2. ID.; PROVISIONAL REMEDIES; ACTION FOR UNLAWFUL DETAINER; IT IS SUFFICIENT TO ALLEGE THAT
THE DEFENDANT IS UNLAWFULLY WITHHOLDING POSSESSION FROM THE PLAINTIFF. It is settled
that in an action for unlawful detainer, to allege that the defendant is unlawfully withholding
possession from the plaintiff is deemed sufficient, and a complaint for unlawful detainer is sufficient if
it alleges that the withholding of possession or the refusal to vacate is unlawful without necessarily
employing the terminology of the law.
3. ID.; ID.; ID.; PROPER WHEN A PERSON WHO OCCUPIES, OUT OF GENEROSITY, THE LAND OF
ANOTHER AND FAILS TO VACATE THE SAME UPON DEMAND BY THE OWNER; CASE AT BAR. More
than once has this Court adjudged that a person who occupies the land of another at the latter's
tolerance or permission without any contract between them is necessarily bound by an implied
promise that he will vacate upon demand, failing which a summary action for ejectment is the proper
remedy against him, The situation is not much different from that of a tenant whose lease expires but
who continues in occupancy by tolerance of the owner, in which case there is deemed to be an
unlawful deprivation or withholding of possession as of the date of the demand to vacate. In other
words, one whose stay is merely tolerated becomes a deforciant illegally occupying the land or
property the moment he is required to leave. Thus, in Asset Privatization Trust vs. Court of Appeals,
229 SCRA 627, 636 [1994] where a company, having lawfully obtained possession of a plant upon its
undertaking to buy the same, refused to return it after failing to fulfill its promise of payment despite
demands this Court held that "(a)fter demand and its repudiation, . . . (its) continuing possession . . .
became illegal and the complaint for unlawful detainer filed by the . . . (plant's owner) was its proper
remedy." It may not be amiss to point out in this connection that where there had been more than
one demand to vacate, the one-year period for filing the complaint for unlawful detainer must be
reckoned from the date of the last demand the reason being that the lessor has the option to waive his
right of action based on previous demands and let the lessee remain meanwhile in the premises.
4. CIVIL LAW; SUCCESSION; A WILL HAS NO EFFECT WHATEVER AND NO RIGHT CAN BE CLAIMED
THEREUNDER UNTIL IT IS ADMITTED TO PROBATE. A will is essentially ambulatory; at any time prior
to the testator's death, it may be changed or revoked; and until admitted to probate, it has no effect
whatever and no right can be claimed thereunder, the law being quite explicit: "No will shall pass
either real or personal property unless it is proved and allowed in accordance with the Rules of Court"
(ART. 838, CIVIL CODE). An owner's intention to confer title on the future to persons possessing
property by his tolerance, is not inconsistent with the former's taking back possession in the meantime
for any reason deemed sufficient. And that in this case there was sufficient cause for the owner's
resumption of possession is apparent: she needed to generate income from the house on account of
the physical infirmities afflicting her, arising from her extreme age.
5. REMEDIAL LAW; SPECIAL PROCEEDINGS; GUARDIANSHIP; DUTIES OF THE GUARDIAN; CASE AT BAR.
Amparo Evangelista was appointed by a competent court the general guardian of both the person
and the estate of her aunt, Carmen Caiza. Her Letters of Guardianship dated December 19, 1989
clearly installed her as the "guardian over the person and properties of the incompetent CARMEN
CAIZA with full authority to take possession of the property of said incompetent in any province or
provinces in which it may be situated and to perform all other acts necessary for the management of
her properties . . ." By that appointment, it became Evangelista's duty to care for her aunt's person, to
attend to her physical and spiritual needs, to assure her well-being, with right to custody of her person
in preference to relatives and friends. It also became her right and duty to get possession of, and
exercise control over, Caiza's property, both real and personal, it being recognized principle that the
ward has no right to possession or control of his property during his incompetency. That right to
manage the ward's estate carried with it right to take possession thereof and recover it from anyone
who retains it and bring and defend such actions as may be needful for this purpose. Actually, in
bringing the action of desahucio, Evangelista was merely discharging the duty to attend to "the
comfortable and suitable maintenance of the ward" explicitly imposed on her by Section 4, Rule 96 of
the Rules of Court.
6. ID.; PROVISIONAL REMEDIES; EJECTMENT CASE; EFFECT OF THE DEATH OF A PARTY; CASE AT BAR.
While it is indeed well-established rule that the relationship of guardian and ward is necessarily
terminated by the death of either the guardian or the ward, the rule affords no advantage to the
Estradas. Amparo Evangelista, as niece of Carmen Caiza, is one of the latter's only two (2) surviving
heirs, the other being Caiza's nephew, Ramon C. Nevado. On their motion and by resolution of this
Court of June 20, 1994, they were in fact substituted as parties in the appeal at bar in place of the
deceased, in accordance with Section 17, Rule 3 of the Rules of Court. To be sure, an EJECTMENT case
survives the death of a party. Caiza's demise did not extinguish the desahuciosuit instituted by her
through her guardian. That action, not being a purely personal one, survived her death; her heirs have
taken her place and now represent her interests in the appeal at bar.
D E C I S I O N
NARVASA, C .J p:
On November 20, 1989, being then ninety-four (94) years of age, Carmen Caiza, a spinster, a retired
pharmacist, and former professor of the College of Chemistry and Pharmacy of the University of the
Philippines, was declared incompetent by judgment 1of the Regional Trial Court of Quezon City,
Branch 107, 2 in a guardianship proceeding instituted by her niece, Amparo A. Evangelista. 3 She was
so adjudged because of her advanced age and physical infirmities which included cataracts in both
eyes and senile dementia. Amparo A. Evangelista was appointed legal guardian of her person and
estate.
Caiza was the owner of a house and lot at No. 61 Tobias St., Quezon City. On September 17, 1990, her
guardian Amparo Evangelista commenced a suit in the Metropolitan Trial Court (MetroTC) of Quezon
City (Branch 35) to eject the spouses Pedro and Leonora Estrada from said premises. 4 The complaint
was later amended to identify the incompetent Caiza as plaintiff, suing through her legal guardian,
Amparo Evangelista.
The amended Complaint 5 pertinently alleged that plaintiff Caiza was the absolute owner of the
property in question, covered by TCT No. 27147; that out of kindness, she had allowed the Estrada
Spouses, their children, grandchildren and sons-in-law to temporarily reside in her house, rent-free;
that Caiza already had urgent need of the house on account of her advanced age and failing health,
"so funds could be raised to meet her expenses for support, maintenance and medical treatment.;"
that through her guardian, Caiza had asked the Estradas verbally and in writing to vacate the house
but they had refused to do so; and that "by the defendants' act of unlawfully depriving plaintiff of the
possession of the house in question, they . . . (were) enriching themselves at the expense of the
incompetent, because, while they . . . (were) saving money by not paying any rent for the house, the
incompetent . . . (was) losing much money as her house could not be rented by others." Also alleged
was that the complaint was "filed within one (1) year from the date of first letter of demand dated
February 3, 1990."
In their Answer with Counterclaim, the defendants declared that they had been living in Caiza's house
since the 1960's; that in consideration of their faithful service they had been considered by Caiza as
her own family, and the latter had in fact executed a holographic will on September 4, 1988 by which
she "bequeathed" to the Estradas the house and lot in question.
Judgment was rendered by the MetroTC on April 13, 1992 in Caiza's favor, 6 the Estradas being
ordered to vacate the premises and pay Caiza P5,000.00 by way of attorney's fees.
But on appeal, 7 the decision was reversed by the Quezon City Regional Trial Court, Branch 96. 8 By
judgment rendered on October 21, 1992, 9 the RTC held that the "action by which the issue of
defendants' possession should be resolved is accion publiciana, the obtaining factual and legal
situation . . . demanding adjudication by such plenary action for recovery of possession cognizable in
the first instance by the Regional Trial Court." cdphil
Caiza sought to have the Court of Appeals reverse the decision of October 21, 1992, but failed in that
attempt. In a decision 10promulgated on June 2, 1993, the Appellate Court 11 affirmed the RTC's
judgment in toto . It ruled that (a) the proper remedy for Caiza was indeed an accion publiciana in the
RTC, not an accion interdictal in the MetroTC, since the "defendants have not been in the subject
premises as mere tenants or occupants by tolerance, they have been there as a sort of adopted family
of Carmen Caiza," as evidenced by what purports to be the holographic will of the plaintiff; and (b)
while "said will, unless and until it has passed probate by the proper court, could not be the basis of
defendants' claim to the property, . . . it is indicative of intent and desire on the part of Carmen Caiza
that defendants are to remain and are to continue in their occupancy and possession, so much so that
Caiza's supervening incompetency can not be said to have vested in her guardian the right or
authority to drive the defendants out." 12

Through her guardian, Caiza came to this Court praying for reversal of the Appellate Court's
judgment. She contends in the main that the latter erred in (a) holding that she should have pursued
an accion publiciana, and not an accion interdictal; and in (b) giving much weight to "a xerox copy of
an alleged holographic will, which is irrelevant to this case." 13
In the responsive pleading filed by them on this Court's requirement, 14 the Estradas insist that the
case against them was really not one of unlawful detainer; they argue that since possession of the
house had not been obtained by them by any "contract, express or implied," as contemplated by
Section 1, Rule 70 of the Rules of Court, their occupancy of the premises could not be deemed one
"terminable upon mere demand (and hence never became unlawful) within the context of the law."
Neither could the suit against them be deemed one of forcible entry, they add, because they had been
occupying the property with the prior consent of the "real owner," Carmen Caiza, which "occupancy
can even ripen into full ownership once the holographic will of petitioner Carmen Caiza is admitted to
probate." They conclude, on those postulates, that it is beyond the power of Caiza's legal guardian to
oust them from the disputed premises.
Carmen Caiza died on March 19, 1994, 15 and her heirs the aforementioned guardian, Amparo
Evangelista, and Ramon C. Nevado, her niece and nephew, respectively were by this Court's leave,
substituted for her. 16
Three issues have to be resolved: (a) whether or not an ejectment action is the appropriate judicial
remedy for recovery of possession of the property in dispute; (b) assuming desahucio to be proper,
whether or not Evangelista, as Caiza's legal guardian had authority to bring said action; and (c)
assuming an affirmative answer to both questions, whether or not Evangelista may continue to
represent Caiza after the latter's death.
I
It is axiomatic that what determines the nature of an action as well as which court has jurisdiction over
it, are the allegations of the complaint and the character of the relief sought. 17 An inquiry into the
averments of the amended complaint in the Court of origin is thus in order. 18
The amended Complaint alleges:19
"6. That the plaintiff, Carmen Caiza, is the sole and absolute owner of a
house and lot at No. 61 Scout Tobias, Quezon City, which property is now the
subject of this complaint;
xxx xxx xxx
9. That the defendants, their children, grandchildren and sons-in-law, were
allowed to live temporarily in the house of plaintiff, Carmen Caiza, for free,
out of her kindness;
10. That the plaintiff, through her legal guardian, has duly notified the
defendants, for them to vacate the said house, but the two (2) letters of
demand were ignored and the defendants refused to vacate the same. . .
11. That the plaintiff, represented by her legal guardian, Amparo Evangelista,
made another demand on the defendants for them to vacate the premises,
before Barangay Captain Angelina A. Diaz of Barangay Laging Handa, Quezon
City, but after two (2) conferences, the result was negative and no settlement
was reached. A photocopy of the Certification to File Action dated July 4,
1990; issued by said Barangay Captain is attached, marked Annex "D" and
made an integral part hereof;
12. That the plaintiff has given the defendants more than thirty (30) days to
vacate the house, but they still refused to vacate the premises, and they are
up to this time residing in the said place;
13. That this complaint is filed within one (1) year from the date of first letter
of demand dated February 3, 1990 (Annex "B") sent by the plaintiff to the
defendants, by her legal guardian Amparo Evangelista;
14. By the defendants' act of unlawfully depriving the plaintiff of the
possession of the house in question, they are enriching themselves at the
expense of the incompetent plaintiff, because, while they are saving money
by not paying any rent for the house, the plaintiff is losing much money as her
house could not be rented by others;
15. That the plaintiff's health is failing and she needs the house urgently, so
that funds could be raised to meet her expenses for her support,
maintenance and medical treatment;
16. That because of defendants' refusal to vacate the house at No. 61 Scout
Tobias, Quezon City, the plaintiff,through her legal guardian, was compelled
to go to court for justice, and she has to spend P10,000.00 as attorney's fees."
Its prayer 20 is quoted below:
"WHEREFORE, in the interest of justice and the rule of law, plaintiff, Carmen
Caiza, represented by her legal guardian.Amparo Evangelista, respectfully
prays to this Honorable Court, to render judgment in favor of plaintiff and
against the defendants as follows:
1. To order the defendants, their children, grandchildren, sons-in-law and
other persons claiming under them, to vacate the house and premises at No.
61 Scout Tobias, Quezon City, so that its possession can be restored to the
plaintiff, Carmen Caiza: and
2. To pay attorney's fees in the amount of P10,000.00;
3. To pay the costs of the suit."
In essence, the amended complaint states:
1) that the Estradas were occupying Caiza's house by tolerance having
been "allowed to live temporarily . . . (therein) for free, out of . . .
(Caiza's) kindness;"
2) that Caiza needed the house "urgently" because her "health . . . (was)
failing and she . . . (needed) funds . . . to meet her expenses for her
support, maintenance and medical treatment;"
3) that through her general guardian, Caiza requested the Estradas several
times, orally and in writing, to give back possession of the house;
4) that the Estradas refused and continue to refuse to give back the house to
Caiza, to her continuing prejudice; and
5) that the action was filed within one (1) year from the last demand to
vacate.
Undoubtedly, a cause of action for desahucio has been adequately set out. It is settled that in an
action for unlawful detainer, it suffices to allege that the defendant is unlawfully withholding
possession from the plaintiff is deemed sufficient, 21 and a complaint for unlawful detainer is
sufficient if it alleges that the withholding of possession or the refusal to vacate is unlawful without
necessarily employing the terminology of the law. 22
The Estradas' first proffered defense derives from a literal construction of Section 1, Rule 70 of the
Rules of Court which inter aliaauthorizes the institution of an unlawful detainer suit when "the
possession of any land or building is unlawfully withheld after the expiration or termination of the
right to hold possession, by virtue of any contract, express or implied." They contend that since they
did not acquire possession of the property in question "by virtue of any contract, express or implied"
they having been, to repeat, "allowed to live temporarily . . . (therein) for free, out of . . . (Caiza's)
kindness" in no sense could there be an "expiration or termination of . . . (their) right to hold
possession, by virtue of any contract, express or implied." Nor would an action for forcible entry lie
against them, since there is no claim that they had "deprived (Caiza) of the possession of . . . (her
property) by force, intimidation, threat, strategy, or stealth."
The argument is arrant sophistry. Caiza's act of allowing the Estradas to occupy her house, rent-free,
did not create a permanent and indefeasible right of possession in the latter's favor. Common sense,
and the most rudimentary sense of fairness clearly require that act of liberality be implicitly, but no
less certainly, accompanied by the necessary burden on the Estradas of returning the house to Caiza
upon her demand. More than once has this Court adjudged that a person who occupies the land of
another at the latter's tolerance or permission without any contract between them is necessarily
bound by an implied promise that he will vacate upon demand, failing which a summary action for
ejectment is the proper remedy against him. 23 The situation is not much different from that of a
tenant whose lease expires but who continues in occupancy by tolerance of the owner, in which case
there is deemed to be an unlawful deprivation or withholding of possession as of the date of the
demand to vacate. 24 In other words, one whose stay is merely tolerated becomes a deforciant
illegally occupying the land or property the moment he is required to leave. 25 Thus, in Asset
Privatization Trust vs. Court of Appeals, 26 where a company, having lawfully obtained possession of a
plant upon its undertaking to buy the same, refused to return it after failing to fulfill its promise of
payment despite demands, this Court held that "(a)fter demand and its repudiation, . . . (its)
continuing possession . . . became illegal and the complaint for unlawful detainer filed by the . . .
(plant's owner) was its proper remedy."
It may not be amiss to point out in this connection that where there had been more than one demand
to vacate, the one-year period for filing the complaint for unlawful detainer must be reckoned from
the date of the last demand, 27 the reason being that the lessor has the option to waive his right of
action based on previous demands and let the lessee remain meanwhile in the premises. 28 Now, the
complaint filed by Caiza's guardian alleges that the same was "filed within one (1) year from the date
of the first letter of demand dated February 3, 1990." Although this averment is not in accord with law
because there is in fact a secondletter of demand to vacate, dated February 27, 1990, the mistake is
inconsequential, since the complaint was actually filed on September 17, 1990, well within one year
from the second (last) written demand to vacate.
The Estradas' possession of the house stemmed from the owner's express permission. That permission
was subsequently withdrawn by the owner, as was her right; and it is immaterial that the withdrawal
was made through her judicial guardian, the latter being indisputably clothed with authority to do so.
Nor is it of any consequence that Carmen Caiza had executed a will bequeathing the disputed
property to the Estradas; that circumstance did not give them the right to stay in the premises after
demand to vacate on the theory that they might in future become owners thereof, that right of
ownership being at best inchoate, no transfer of ownership being possible unless and until the will is
duly probated.

Thus, at the time of the institution of the action of desahucio, the Estradas had no legal right to the
property, whether as possessors by tolerance or sufferance, or as owners. They could not claim the
right of possession by sufferance, that had been legally ended. They could not assert any right of
possession flowing from their ownership of the house; their status as owners is dependent on the
probate of the holographic will by which the property had allegedly been bequeathed to them an
event which still has to take place; in other words; prior to the probate of the will, any assertion of
possession by them would be premature and inefficacious.
In any case, the only issue that could legitimately be raised under the circumstances was that involving
the Estradas' possession by tolerance, i.e., possession de facto, not de jure. It is therefore incorrect to
postulate that the proper remedy for Caiza is not ejectment but accion publiciana, a plenary action in
the RTC or an action that is one for recovery of the right to possession de jure.
II
The Estradas insist that the devise of the house to them by Caiza clearly denotes her intention that
they remain in possession thereof, and legally incapacitated her judicial guardian, Amparo Evangelista,
from evicting them therefrom, since their ouster would be inconsistent with the ward's will.
A will is essentially ambulatory; at any time prior to the testator's death, it may be changed or
revoked; 29 and until admitted to probate, it has no effect whatever and no right can be claimed
thereunder, the law being quite explicit: "No will shall pass either real or personal property unless it is
proved and allowed in accordance with the Rules of Court" (ART. 838, Id.). 30 An owner's intention to
confer title in the future to persons possessing property by his tolerance, is not inconsistent with the
former's taking back possession in the meantime for any reason deemed sufficient. And that in this
case there was sufficient cause for the owner's resumption of possession is apparent: she needed to
generate income from the house on account of the physical infirmities afflicting her, arising from her
extreme age.
Amparo Evangelista was appointed by a competent court the general guardian of both the person and
the estate of her aunt, Carmen Caiza. Her Letters of Guardianship 31 dated December 19, 1989
clearly installed her as the "guardian over the person and properties of the incompetent CARMEN
CAIZA with full authority to take possession of the property of said incompetent in any province or
provinces in which it may be situated and to perform all other acts necessary for the management of
her properties . . ." 32 By that appointment, it became Evangelista's duty to care for her aunt's person,
to attend to her physical and spiritual needs, to assure her well-being, with right to custody of her
person in preference to relatives and friends. 33 It also became her right and duty to get possession of,
and exercise control over, Caiza's property, both real and personal, it being recognized principle that
the ward has no right to possession or control of his property during her incompetency. 34 That right
to manage the ward's estate carries with it the right to take possession thereof and recover it from
anyone who retains it, 35 and bring and defend such actions as may be needful for this purpose. 36
Actually, in bringing the action of desahucio, Evangelista was merely discharging the duty to attend to
"the comfortable and suitable maintenance of the ward" explicitly imposed on her by Section 4, Rule
96 of the Rules of Court, viz.:
"SEC. 4. Estate to be managed frugally, and proceeds applied to maintenance
of ward. A guardian must manage the estate of his ward frugally and
without waste, and apply the income and profits thereof, so far as maybe
necessary, to the comfortable and suitable maintenance of the ward and his
family, if there be any; and if such income and profits be insufficient for that
purpose, the guardian may sell or encumber the real estate, upon being
authorized by order to do so, and apply to such of the proceeds as may be
necessary to such maintenance."
Finally, it may be pointed out in relation to the Estradas' defenses in the ejectment action, that as the
law now stands, even when, in forcible entry and unlawful detainer cases, the defendant raises the
question of ownership in his pleadings and the question of possession cannot be resolved without
deciding the issue of ownership, the Metropolitan Trial Courts, Municipal Trial Courts, and Municipal
Circuit Trial Courts nevertheless have the undoubted competence to resolve. "the issue of ownership .
. . only to determine the issue of possession." 37
III
As already stated, Carmen Caiza passed away during the pendency of this appeal. The Estradas
thereupon moved to dismiss the petition, arguing that Caiza's death automatically terminated the
guardianship, Amparo Evangelista lost all authority as her judicial guardian, and ceased to have legal
personality to represent her in the present appeal. The motion is without merit.
While it is indeed well-established rule that the relationship of guardian and ward is necessarily
terminated by the death of either the guardian or the ward, 38 the rule affords no advantage to the
Estradas. Amparo Evangelista, as niece of Carmen Caiza, is one of the latter's only two (2) surviving
heirs, the other being Caiza's nephew, Ramon C. Nevado. On their motion and by Resolution of this
Court 39 of June 20, 1994, they were in fact substituted as parties in the appeal at bar in place of the
deceased, in accordance with Section 17, Rule 3 of the Rules of Court, viz.: 40
"SEC. 17. Death of a party. After a party dies and the claim is not thereby
extinguished, the court shall order, upon proper notice, the legal
representative of the deceased to appear and be substituted for the
deceased within a period of thirty (30) days, or within such time as may be
granted. If the legal representative fails to appear within said time, the court
may order the opposing party to procure the appointment of a legal
representative of the deceased within a time to be specified by the court, and
the representative shall immediately appear for and on behalf of the interest
of the deceased. The court charges involved in procuring such appointment, if
defrayed by the opposing party, may be recovered as costs. The heirs of the
deceased may be allowed to be substituted for the deceased, without
requiring the appointment of an executor or administrator and the court may
appoint guardian ad litem for the minor heirs.
To be sure, an ejectment case survives the death of a party. Caiza's demise did not extinguish
the desahucio suit instituted by her through her guardian. 41 That action, not being a purely personal
one, survived her death; her heirs have taken her place and now represent her interests in the appeal
at bar.
WHEREFORE, the petition is GRANTED. The Decision of the Court of Appeals promulgated on June 2,
1993 affirming the Regional Trial Court's judgment and dismissing petitioner's petition
for certiorari is REVERSED and SET ASIDE, and the Decision dated April 13, 1992 of the Metropolitan
Trial Court of Quezon City, Branch 35, in Civil Case No. 3410 is REINSTATED and AFFIRMED. Costs
against private respondents. cda
SO ORDERED.
Davide, Jr., Melo, Francisco and Panganiban, JJ., concur.
||| (Ca, G.R. No. 110427, February 24, 1997)