Republic of the Philippines

SUPREME COURT
Manila
SECOND DIVISION
G.R. No. 82027 March 29, 1990
ROMARICO G. VITUG, petitioner,
vs.
THE HONORABLE COURT OF APPEALS and ROWENA FAUSTINO-CORONA, respondents.
Rufino B. Javier Law Office for petitioner.
Quisumbing, Torres & Evangelista for private respondent.

SARMIENTO, J.:
This case is a chapter in an earlier suit decided by this Court 1 involving the probate of the two wills of the
late Dolores Luchangco Vitug, who died in New York, U. S.A., on November 10, 1980, naming private
respondent Rowena Faustino-Corona executrix. In our said decision, we upheld the appointment of
Nenita Alonte as co-special administrator of Mrs. Vitug's estate with her (Mrs. Vitug's) widower, petitioner
Romarico G. Vitug, pending probate.
On January 13, 1985, Romarico G. Vitug filed a motion asking for authority from the probate court to sell
certain shares of stock and real properties belonging to the estate to cover allegedly his advances to the
estate in the sum of P667,731.66, plus interests, which he claimed were personal funds. As found by the
Court of Appeals, 2the alleged advances consisted of P58,147.40 spent for the payment of estate tax,
P518,834.27 as deficiency estate tax, and P90,749.99 as "increment thereto." 3 According to Mr. Vitug, he
withdrew the sums of P518,834.27 and P90,749.99 from savings account No. 35342-038 of the Bank of
America, Makati, Metro Manila.
On April 12, 1985, Rowena Corona opposed the motion to sell on the ground that the same funds
withdrawn from savings account No. 35342-038 were conjugal partnership properties and part of the
estate, and hence, there was allegedly no ground for reimbursement. She also sought his ouster for
failure to include the sums in question for inventory and for "concealment of funds belonging to the
estate." 4
Vitug insists that the said funds are his exclusive property having acquired the same through a
survivorship agreement executed with his late wife and the bank on June 19, 1970. The agreement
provides:
We hereby agree with each other and with the BANK OF AMERICAN NATIONAL TRUST
AND SAVINGS ASSOCIATION (hereinafter referred to as the BANK), that all money now
or hereafter deposited by us or any or either of us with the BANK in our joint savings
current account shall be the property of all or both of us and shall be payable to and

collectible or withdrawable by either or any of us during our lifetime, and after the death of
either or any of us shall belong to and be the sole property of the survivor or survivors,
and shall be payable to and collectible or withdrawable by such survivor or survivors.
We further agree with each other and the BANK that the receipt or check of either, any or
all of us during our lifetime, or the receipt or check of the survivor or survivors, for any
payment or withdrawal made for our above-mentioned account shall be valid and
sufficient release and discharge of the BANK for such payment or withdrawal. 5
The trial courts 6 upheld the validity of this agreement and granted "the motion to sell some of the estate
of Dolores L. Vitug, the proceeds of which shall be used to pay the personal funds of Romarico Vitug in
the total sum of P667,731.66 ... ."7
On the other hand, the Court of Appeals, in the petition for certiorari filed by the herein private respondent,
held that the above-quoted survivorship agreement constitutes a conveyance mortis causa which "did not
comply with the formalities of a valid will as prescribed by Article 805 of the Civil Code," 8 and secondly,
assuming that it is a mere donation inter vivos, it is a prohibited donation under the provisions of Article
133 of the Civil Code. 9
The dispositive portion of the decision of the Court of Appeals states:
WHEREFORE, the order of respondent Judge dated November 26, 1985 (Annex II,
petition) is hereby set aside insofar as it granted private respondent's motion to sell
certain properties of the estate of Dolores L. Vitug for reimbursement of his alleged
advances to the estate, but the same order is sustained in all other respects. In addition,
respondent Judge is directed to include provisionally the deposits in Savings Account No.
35342-038 with the Bank of America, Makati, in the inventory of actual properties
possessed by the spouses at the time of the decedent's death. With costs against private
respondent. 10
In his petition, Vitug, the surviving spouse, assails the appellate court's ruling on the strength of our
decisions inRivera v. People's Bank and Trust Co. 11 and Macam v. Gatmaitan 12 in which we sustained
the validity of "survivorship agreements" and considering them as aleatory contracts. 13
The petition is meritorious.
The conveyance in question is not, first of all, one of mortis causa, which should be embodied in a will. A
will has been defined as "a personal, solemn, revocable and free act by which a capacitated person
disposes of his property and rights and declares or complies with duties to take effect after his
death." 14 In other words, the bequest or device must pertain to the testator. 15 In this case, the monies
subject of savings account No. 35342-038 were in the nature of conjugal funds In the case relied
on, Rivera v. People's Bank and Trust Co., 16 we rejected claims that a survivorship agreement purports to
deliver one party's separate properties in favor of the other, but simply, their joint holdings:
xxx xxx xxx
... Such conclusion is evidently predicated on the assumption that Stephenson was the
exclusive owner of the funds-deposited in the bank, which assumption was in turn based

on the facts (1) that the account was originally opened in the name of Stephenson alone
and (2) that Ana Rivera "served only as housemaid of the deceased." But it not
infrequently happens that a person deposits money in the bank in the name of another;
and in the instant case it also appears that Ana Rivera served her master for about
nineteen years without actually receiving her salary from him. The fact that subsequently
Stephenson transferred the account to the name of himself and/or Ana Rivera and
executed with the latter the survivorship agreement in question although there was no
relation of kinship between them but only that of master and servant, nullifies the
assumption that Stephenson was the exclusive owner of the bank account. In the
absence, then, of clear proof to the contrary, we must give full faith and credit to the
certificate of deposit which recites in effect that the funds in question belonged to Edgar
Stephenson and Ana Rivera; that they were joint (and several) owners thereof; and that
either of them could withdraw any part or the whole of said account during the lifetime of
both, and the balance, if any, upon the death of either, belonged to the survivor. 17
xxx xxx xxx
In Macam v. Gatmaitan, 18 it was held:
xxx xxx xxx
This Court is of the opinion that Exhibit C is an aleatory contract whereby, according to
article 1790 of the Civil Code, one of the parties or both reciprocally bind themselves to
give or do something as an equivalent for that which the other party is to give or do in
case of the occurrence of an event which is uncertain or will happen at an indeterminate
time. As already stated, Leonarda was the owner of the house and Juana of the Buick
automobile and most of the furniture. By virtue of Exhibit C, Juana would become the
owner of the house in case Leonarda died first, and Leonarda would become the owner
of the automobile and the furniture if Juana were to die first. In this manner Leonarda and
Juana reciprocally assigned their respective property to one another conditioned upon
who might die first, the time of death determining the event upon which the acquisition of
such right by the one or the other depended. This contract, as any other contract, is
binding upon the parties thereto. Inasmuch as Leonarda had died before Juana, the latter
thereupon acquired the ownership of the house, in the same manner as Leonarda would
have acquired the ownership of the automobile and of the furniture if Juana had died
first. 19
xxx xxx xxx
There is no showing that the funds exclusively belonged to one party, and hence it must be presumed to
be conjugal, having been acquired during the existence of the marita. relations. 20
Neither is the survivorship agreement a donation inter vivos, for obvious reasons, because it was to take
effect after the death of one party. Secondly, it is not a donation between the spouses because it involved
no conveyance of a spouse's own properties to the other.
It is also our opinion that the agreement involves no modification petition of the conjugal partnership, as
held by the Court of Appeals, 21 by "mere stipulation" 22 and that it is no "cloak" 23 to circumvent the law on

conjugal property relations. Certainly, the spouses are not prohibited by law to invest conjugal property,
say, by way of a joint and several bank account, more commonly denominated in banking parlance as an
"and/or" account. In the case at bar, when the spouses Vitug opened savings account No. 35342-038,
they merely put what rightfully belonged to them in a money-making venture. They did not dispose of it in
favor of the other, which would have arguably been sanctionable as a prohibited donation. And since the
funds were conjugal, it can not be said that one spouse could have pressured the other in placing his or
her deposits in the money pool.
The validity of the contract seems debatable by reason of its "survivor-take-all" feature, but in reality, that
contract imposed a mere obligation with a term, the term being death. Such agreements are permitted by
the Civil Code.24
Under Article 2010 of the Code:
ART. 2010. By an aleatory contract, one of the parties or both reciprocally bind
themselves to give or to do something in consideration of what the other shall give or do
upon the happening of an event which is uncertain, or which is to occur at an
indeterminate time.
Under the aforequoted provision, the fulfillment of an aleatory contract depends on either the happening
of an event which is (1) "uncertain," (2) "which is to occur at an indeterminate time." A survivorship
agreement, the sale of a sweepstake ticket, a transaction stipulating on the value of currency, and
insurance have been held to fall under the first category, while a contract for life annuity or pension under
Article 2021, et sequentia, has been categorized under the second. 25 In either case, the element of risk is
present. In the case at bar, the risk was the death of one party and survivorship of the other.
However, as we have warned:
xxx xxx xxx
But although the survivorship agreement is per se not contrary to law its operation or
effect may be violative of the law. For instance, if it be shown in a given case that such
agreement is a mere cloak to hide an inofficious donation, to transfer property in fraud of
creditors, or to defeat the legitime of a forced heir, it may be assailed and annulled upon
such grounds. No such vice has been imputed and established against the agreement
involved in this case. 26
xxx xxx xxx
There is no demonstration here that the survivorship agreement had been executed for such unlawful
purposes, or, as held by the respondent court, in order to frustrate our laws on wills, donations, and
conjugal partnership.
The conclusion is accordingly unavoidable that Mrs. Vitug having predeceased her husband, the latter
has acquired upon her death a vested right over the amounts under savings account No. 35342-038 of
the Bank of America. Insofar as the respondent court ordered their inclusion in the inventory of assets left
by Mrs. Vitug, we hold that the court was in error. Being the separate property of petitioner, it forms no
more part of the estate of the deceased.

WHEREFORE, the decision of the respondent appellate court, dated June 29, 1987, and its resolution,
dated February 9, 1988, are SET ASIDE.
No costs.
SO ORDERED.

Republic of the Philippines

SUPREME COURT
Manila
THIRD DIVISION
G.R. No. 113725

June 29, 2000

JOHNNY S. RABADILLA,1 petitioner,

vs.
COURT OF APPEALS AND MARIA MARLENA2 COSCOLUELLA Y BELLEZA
VILLACARLOS, respondents.
DECISION
PURISIMA, J.:
This is a petition for review of the decision of the Court of Appeals, 3 dated December 23, 1993, in CAG.R. No. CV-35555, which set aside the decision of Branch 52 of the Regional Trial Court in Bacolod City,
and ordered the defendants-appellees (including herein petitioner), as heirs of Dr. Jorge Rabadilla, to
reconvey title over Lot No. 1392, together with its fruits and interests, to the estate of Aleja Belleza.
The antecedent facts are as follows:
In a Codicil appended to the Last Will and Testament of testatrix Aleja Belleza, Dr. Jorge Rabadilla,
predecessor-in-interest of the herein petitioner, Johnny S. Rabadilla, was instituted as a devisee of 511,
855 square meters of that parcel of land surveyed as Lot No. 1392 of the Bacolod Cadastre. The said
Codicil, which was duly probated and admitted in Special Proceedings No. 4046 before the then Court of
First Instance of Negros Occidental, contained the following provisions:
"FIRST

I give, leave and bequeath the following property owned by me to Dr. Jorge Rabadilla resident of 141 P.
Villanueva, Pasay City:
(a) Lot No. 1392 of the Bacolod Cadastre, covered by Transfer Certificate of Title No. RT-4002
(10942), which is registered in my name according to the records of the Register of Deeds of
Negros Occidental.
(b) That should Jorge Rabadilla die ahead of me, the aforementioned property and the rights
which I shall set forth hereinbelow, shall be inherited and acknowledged by the children and
spouse of Jorge Rabadilla.
xxx
FOURTH
(a)....It is also my command, in this my addition (Codicil), that should I die and Jorge Rabadilla shall have
already received the ownership of the said Lot No. 1392 of the Bacolod Cadastre, covered by Transfer
Certificate of Title No. RT-4002 (10942), and also at the time that the lease of Balbinito G. Guanzon of the
said lot shall expire, Jorge Rabadilla shall have the obligation until he dies, every year to give to Maria
Marlina Coscolluela y Belleza, Seventy (75) (sic) piculs of Export sugar and Twenty Five (25) piculs of
Domestic sugar, until the said Maria Marlina Coscolluela y Belleza dies.
FIFTH
(a) Should Jorge Rabadilla die, his heir to whom he shall give Lot No. 1392 of the Bacolod Cadastre,
covered by Transfer Certificate of Title No. RT-4002 (10492), shall have the obligation to still give yearly,
the sugar as specified in the Fourth paragraph of his testament, to Maria Marlina Coscolluela y Belleza on
the month of December of each year.
SIXTH
I command, in this my addition (Codicil) that the Lot No. 1392, in the event that the one to whom I have
left and bequeathed, and his heir shall later sell, lease, mortgage this said Lot, the buyer, lessee,
mortgagee, shall have also the obligation to respect and deliver yearly ONE HUNDRED (100) piculs of
sugar to Maria Marlina Coscolluela y Belleza, on each month of December, SEVENTY FIVE (75) piculs of
Export and TWENTY FIVE (25) piculs of Domestic, until Maria Marlina shall die, lastly should the buyer,
lessee or the mortgagee of this lot, not have respected my command in this my addition (Codicil), Maria
Marlina Coscolluela y Belleza, shall immediately seize this Lot No. 1392 from my heir and the latter's
heirs, and shall turn it over to my near desendants, (sic) and the latter shall then have the obligation to
give the ONE HUNDRED (100) piculs of sugar until Maria Marlina shall die. I further command in this my
addition (Codicil) that my heir and his heirs of this Lot No. 1392, that they will obey and follow that should
they decide to sell, lease, mortgage, they cannot negotiate with others than my near descendants and my
sister."4
Pursuant to the same Codicil, Lot No. 1392 was transferred to the deceased, Dr. Jorge Rabadilla, and
Transfer Certificate of Title No. 44498 thereto issued in his name.

Dr. Jorge Rabadilla died in 1983 and was survived by his wife Rufina and children Johnny (petitioner),
Aurora, Ofelia and Zenaida, all surnamed Rabadilla.
On August 21, 1989, Maria Marlena Coscolluela y Belleza Villacarlos brought a complaint, docketed as
Civil Case No. 5588, before Branch 52 of the Regional Trial Court in Bacolod City, against the abovementioned heirs of Dr. Jorge Rabadilla, to enforce the provisions of subject Codicil. The Complaint
alleged that the defendant-heirs violated the conditions of the Codicil, in that:
1. Lot No. 1392 was mortgaged to the Philippine National Bank and the Republic Planters Bank in
disregard of the testatrix's specific instruction to sell, lease, or mortgage only to the near
descendants and sister of the testatrix.
2. Defendant-heirs failed to comply with their obligation to deliver one hundred (100) piculs of
sugar (75 piculs export sugar and 25 piculs domestic sugar) to plaintiff Maria Marlena Coscolluela
y Belleza from sugar crop years 1985 up to the filing of the complaint as mandated by the Codicil,
despite repeated demands for compliance.
3. The banks failed to comply with the 6th paragraph of the Codicil which provided that in case of
the sale, lease, or mortgage of the property, the buyer, lessee, or mortgagee shall likewise have
the obligation to deliver 100 piculs of sugar per crop year to herein private respondent.
The plaintiff then prayed that judgment be rendered ordering defendant-heirs to reconvey/return-Lot No.
1392 to the surviving heirs of the late Aleja Belleza, the cancellation of TCT No. 44498 in the name of the
deceased, Dr. Jorge Rabadilla, and the issuance of a new certificate of title in the names of the surviving
heirs of the late Aleja Belleza.
On February 26, 1990, the defendant-heirs were declared in default but on March 28, 1990 the Order of
Default was lifted, with respect to defendant Johnny S. Rabadilla, who filed his Answer, accordingly.
During the pre-trial, the parties admitted that:
On November 15, 1998, the plaintiff (private respondent) and a certain Alan Azurin, son-in-law of the
herein petitioner who was lessee of the property and acting as attorney-in-fact of defendant-heirs, arrived
at an amicable settlement and entered into a Memorandum of Agreement on the obligation to deliver one
hundred piculs of sugar, to the following effect:
"That for crop year 1988-89, the annuity mentioned in Entry No. 49074 of TCT No. 44489 will be delivered
not later than January of 1989, more specifically, to wit:
75 piculs of 'A' sugar, and 25 piculs of 'B' sugar, or then existing in any of our names, Mary Rose
Rabadilla y Azurin or Alan Azurin, during December of each sugar crop year, in Azucar Sugar Central;
and, this is considered compliance of the annuity as mentioned, and in the same manner will compliance
of the annuity be in the next succeeding crop years.
That the annuity above stated for crop year 1985-86, 1986-87, and 1987-88, will be complied in cash
equivalent of the number of piculs as mentioned therein and which is as herein agreed upon, taking into
consideration the composite price of sugar during each sugar crop year, which is in the total amount of
ONE HUNDRED FIVE THOUSAND PESOS (P105,000.00).

That the above-mentioned amount will be paid or delivered on a staggered cash installment, payable on
or before the end of December of every sugar crop year, to wit:
For 1985-86, TWENTY SIX THOUSAND TWO HUNDRED FIFTY (P26,250.00) Pesos, payable on or
before December of crop year 1988-89;
For 1986-87, TWENTY SIX THOUSAND TWO HUNDRED FIFTY (P26,250.00) Pesos, payable on or
before December of crop year 1989-90;
For 1987-88, TWENTY SIX THOUSAND TWO HUNDRED FIFTY (P26,250.00) Pesos, payable on or
before December of crop year 1990-91; and
For 1988-89, TWENTY SIX THOUSAND TWO HUNDRED FIFTY (P26,250.00) Pesos, payable on or
before December of crop year 1991-92."5
However, there was no compliance with the aforesaid Memorandum of Agreement except for a partial
delivery of 50.80 piculs of sugar corresponding to sugar crop year 1988 -1989.
On July 22, 1991, the Regional Trial Court came out with a decision, dismissing the complaint and
disposing as follows:
"WHEREFORE, in the light of the aforegoing findings, the Court finds that the action is prematurely filed
as no cause of action against the defendants has as yet arose in favor of plaintiff. While there maybe the
non-performance of the command as mandated exaction from them simply because they are the children
of Jorge Rabadilla, the title holder/owner of the lot in question, does not warrant the filing of the present
complaint. The remedy at bar must fall. Incidentally, being in the category as creditor of the left estate, it is
opined that plaintiff may initiate the intestate proceedings, if only to establish the heirs of Jorge Rabadilla
and in order to give full meaning and semblance to her claim under the Codicil.
In the light of the aforegoing findings, the Complaint being prematurely filed is DISMISSED without
prejudice.
SO ORDERED."6
On appeal by plaintiff, the First Division of the Court of Appeals reversed the decision of the trial court;
ratiocinating and ordering thus:
"Therefore, the evidence on record having established plaintiff-appellant's right to receive 100 piculs of
sugar annually out of the produce of Lot No. 1392; defendants-appellee's obligation under Aleja Belleza's
codicil, as heirs of the modal heir, Jorge Rabadilla, to deliver such amount of sugar to plaintiff-appellant;
defendants-appellee's admitted non-compliance with said obligation since 1985; and, the punitive
consequences enjoined by both the codicil and the Civil Code, of seizure of Lot No. 1392 and its
reversion to the estate of Aleja Belleza in case of such non-compliance, this Court deems it proper to
order the reconveyance of title over Lot No. 1392 from the estates of Jorge Rabadilla to the estate of Aleja
Belleza. However, plaintiff-appellant must institute separate proceedings to re-open Aleja Belleza's estate,
secure the appointment of an administrator, and distribute Lot No. 1392 to Aleja Belleza's legal heirs in
order to enforce her right, reserved to her by the codicil, to receive her legacy of 100 piculs of sugar per
year out of the produce of Lot No. 1392 until she dies.

Accordingly, the decision appealed from is SET ASIDE and another one entered ordering defendantsappellees, as heirs of Jorge Rabadilla, to reconvey title over Lot No. 1392, together with its fruits and
interests, to the estate of Aleja Belleza.
SO ORDERED."7
Dissatisfied with the aforesaid disposition by the Court of Appeals, petitioner found his way to this
Court via the present petition, contending that the Court of Appeals erred in ordering the reversion of Lot
1392 to the estate of the testatrix Aleja Belleza on the basis of paragraph 6 of the Codicil, and in ruling
that the testamentary institution of Dr. Jorge Rabadilla is a modal institution within the purview of Article
882 of the New Civil Code.
The petition is not impressed with merit.
Petitioner contends that the Court of Appeals erred in resolving the appeal in accordance with Article 882
of the New Civil Code on modal institutions and in deviating from the sole issue raised which is the
absence or prematurity of the cause of action. Petitioner maintains that Article 882 does not find
application as there was no modal institution and the testatrix intended a mere simple substitution - i.e.
the instituted heir, Dr. Jorge Rabadilla, was to be substituted by the testatrix's "near descendants" should
the obligation to deliver the fruits to herein private respondent be not complied with. And since the
testatrix died single and without issue, there can be no valid substitution and such testamentary provision
cannot be given any effect.
The petitioner theorizes further that there can be no valid substitution for the reason that the substituted
heirs are not definite, as the substituted heirs are merely referred to as "near descendants" without a
definite identity or reference as to who are the "near descendants" and therefore, under Articles 843 8 and
8459 of the New Civil Code, the substitution should be deemed as not written.
The contentions of petitioner are untenable. Contrary to his supposition that the Court of Appeals deviated
from the issue posed before it, which was the propriety of the dismissal of the complaint on the ground of
prematurity of cause of action, there was no such deviation. The Court of Appeals found that the private
respondent had a cause of action against the petitioner. The disquisition made on modal institution was,
precisely, to stress that the private respondent had a legally demandable right against the petitioner
pursuant to subject Codicil; on which issue the Court of Appeals ruled in accordance with law.
It is a general rule under the law on succession that successional rights are transmitted from the moment
of death of the decedent10 and compulsory heirs are called to succeed by operation of law. The legitimate
children and descendants, in relation to their legitimate parents, and the widow or widower, are
compulsory heirs.11 Thus, the petitioner, his mother and sisters, as compulsory heirs of the instituted heir,
Dr. Jorge Rabadilla, succeeded the latter by operation of law, without need of further proceedings, and the
successional rights were transmitted to them from the moment of death of the decedent, Dr. Jorge
Rabadilla.
Under Article 776 of the New Civil Code, inheritance includes all the property, rights and obligations of a
person, not extinguished by his death. Conformably, whatever rights Dr. Jorge Rabadilla had by virtue of
subject Codicil were transmitted to his forced heirs, at the time of his death. And since obligations not
extinguished by death also form part of the estate of the decedent; corollarily, the obligations imposed by

the Codicil on the deceased Dr. Jorge Rabadilla, were likewise transmitted to his compulsory heirs upon
his death.
In the said Codicil, testatrix Aleja Belleza devised Lot No. 1392 to Dr. Jorge Rabadilla, subject to the
condition that the usufruct thereof would be delivered to the herein private respondent every year. Upon
the death of Dr. Jorge Rabadilla, his compulsory heirs succeeded to his rights and title over the said
property, and they also assumed his (decedent's) obligation to deliver the fruits of the lot involved to
herein private respondent. Such obligation of the instituted heir reciprocally corresponds to the right of
private respondent over the usufruct, the fulfillment or performance of which is now being demanded by
the latter through the institution of the case at bar. Therefore, private respondent has a cause of action
against petitioner and the trial court erred in dismissing the complaint below.
Petitioner also theorizes that Article 882 of the New Civil Code on modal institutions is not applicable
because what the testatrix intended was a substitution - Dr. Jorge Rabadilla was to be substituted by the
testatrix's near descendants should there be noncompliance with the obligation to deliver the piculs of
sugar to private respondent.
Again, the contention is without merit.
Substitution is the designation by the testator of a person or persons to take the place of the heir or heirs
first instituted. Under substitutions in general, the testator may either (1) provide for the designation of
another heir to whom the property shall pass in case the original heir should die before him/her, renounce
the inheritance or be incapacitated to inherit, as in a simple substitution, 12 or (2) leave his/her property to
one person with the express charge that it be transmitted subsequently to another or others, as in a
fideicommissary substitution.13 The Codicil sued upon contemplates neither of the two.
In simple substitutions, the second heir takes the inheritance in default of the first heir by reason of
incapacity, predecease or renunciation.14 In the case under consideration, the provisions of subject Codicil
do not provide that should Dr. Jorge Rabadilla default due to predecease, incapacity or renunciation, the
testatrix's near descendants would substitute him. What the Codicil provides is that, should Dr. Jorge
Rabadilla or his heirs not fulfill the conditions imposed in the Codicil, the property referred to shall be
seized and turned over to the testatrix's near descendants.
Neither is there a fideicommissary substitution here and on this point, petitioner is correct. In a
fideicommissary substitution, the first heir is strictly mandated to preserve the property and to
transmit the same later to the second heir.15 In the case under consideration, the instituted heir is in fact
allowed under the Codicil to alienate the property provided the negotiation is with the near descendants or
the sister of the testatrix. Thus, a very important element of a fideicommissary substitution is lacking; the
obligation clearly imposing upon the first heir the preservation of the property and its transmission to the
second heir. "Without this obligation to preserve clearly imposed by the testator in his will, there is no
fideicommissary substitution."16 Also, the near descendants' right to inherit from the testatrix is not
definite. The property will only pass to them should Dr. Jorge Rabadilla or his heirs not fulfill the obligation
to deliver part of the usufruct to private respondent.
Another important element of a fideicommissary substitution is also missing here. Under Article 863, the
second heir or the fideicommissary to whom the property is transmitted must not be beyond one degree
from the first heir or the fiduciary. A fideicommissary substitution is therefore, void if the first heir is not

related by first degree to the second heir.17 In the case under scrutiny, the near descendants are not at all
related to the instituted heir, Dr. Jorge Rabadilla.
The Court of Appeals erred not in ruling that the institution of Dr. Jorge Rabadilla under subject Codicil is
in the nature of a modal institution and therefore, Article 882 of the New Civil Code is the provision of law
in point. Articles 882 and 883 of the New Civil Code provide:
Art. 882. The statement of the object of the institution or the application of the property left by the testator,
or the charge imposed on him, shall not be considered as a condition unless it appears that such was his
intention.
That which has been left in this manner may be claimed at once provided that the instituted heir or his
heirs give security for compliance with the wishes of the testator and for the return of anything he or they
may receive, together with its fruits and interests, if he or they should disregard this obligation.
Art. 883. When without the fault of the heir, an institution referred to in the preceding article cannot take
effect in the exact manner stated by the testator, it shall be complied with in a manner most analogous to
and in conformity with his wishes.
The institution of an heir in the manner prescribed in Article 882 is what is known in the law of succession
as aninstitucion sub modo or a modal institution. In a modal institution, the testator states (1) the object of
the institution, (2) the purpose or application of the property left by the testator, or (3) the charge imposed
by the testator upon the heir.18 A "mode" imposes an obligation upon the heir or legatee but it does not
affect the efficacy of his rights to the succession.19 On the other hand, in a conditional testamentary
disposition, the condition must happen or be fulfilled in order for the heir to be entitled to succeed the
testator. The condition suspends but does not obligate; and the mode obligates but does not
suspend.20 To some extent, it is similar to a resolutory condition. 21
From the provisions of the Codicil litigated upon, it can be gleaned unerringly that the testatrix intended
that subject property be inherited by Dr. Jorge Rabadilla. It is likewise clearly worded that the testatrix
imposed an obligation on the said instituted heir and his successors-in-interest to deliver one hundred
piculs of sugar to the herein private respondent, Marlena Coscolluela Belleza, during the lifetime of the
latter. However, the testatrix did not make Dr. Jorge Rabadilla's inheritance and the effectivity of his
institution as a devisee, dependent on the performance of the said obligation. It is clear, though, that
should the obligation be not complied with, the property shall be turned over to the testatrix's near
descendants. The manner of institution of Dr. Jorge Rabadilla under subject Codicil is evidently modal in
nature because it imposes a charge upon the instituted heir without, however, affecting the efficacy of
such institution.
Then too, since testamentary dispositions are generally acts of liberality, an obligation imposed upon the
heir should not be considered a condition unless it clearly appears from the Will itself that such was the
intention of the testator. In case of doubt, the institution should be considered as modal and not
conditional.22
Neither is there tenability in the other contention of petitioner that the private respondent has only a right
of usufruct but not the right to seize the property itself from the instituted heir because the right to seize
was expressly limited to violations by the buyer, lessee or mortgagee.

In the interpretation of Wills, when an uncertainty arises on the face of the Will, as to the application of
any of its provisions, the testator's intention is to be ascertained from the words of the Will, taking into
consideration the circumstances under which it was made. 23 Such construction as will sustain and uphold
the Will in all its parts must be adopted.24
Subject Codicil provides that the instituted heir is under obligation to deliver One Hundred (100) piculs of
sugar yearly to Marlena Belleza Coscuella. Such obligation is imposed on the instituted heir, Dr. Jorge
Rabadilla, his heirs, and their buyer, lessee, or mortgagee should they sell, lease, mortgage or otherwise
negotiate the property involved. The Codicil further provides that in the event that the obligation to deliver
the sugar is not respected, Marlena Belleza Coscuella shall seize the property and turn it over to the
testatrix's near descendants. The non-performance of the said obligation is thus with the sanction of
seizure of the property and reversion thereof to the testatrix's near descendants. Since the said obligation
is clearly imposed by the testatrix, not only on the instituted heir but also on his successors-in-interest, the
sanction imposed by the testatrix in case of non-fulfillment of said obligation should equally apply to the
instituted heir and his successors-in-interest.
Similarly unsustainable is petitioner's submission that by virtue of the amicable settlement, the said
obligation imposed by the Codicil has been assumed by the lessee, and whatever obligation petitioner
had become the obligation of the lessee; that petitioner is deemed to have made a substantial and
constructive compliance of his obligation through the consummated settlement between the lessee and
the private respondent, and having consummated a settlement with the petitioner, the recourse of the
private respondent is the fulfillment of the obligation under the amicable settlement and not the seizure of
subject property.
Suffice it to state that a Will is a personal, solemn, revocable and free act by which a person disposes of
his property, to take effect after his death.25 Since the Will expresses the manner in which a person
intends how his properties be disposed, the wishes and desires of the testator must be strictly followed.
Thus, a Will cannot be the subject of a compromise agreement which would thereby defeat the very
purpose of making a Will.
WHEREFORE, the petition is hereby DISMISSED and the decision of the Court of Appeals, dated
December 23, 1993, in CA-G.R. No. CV-35555 AFFIRMED. No pronouncement as to costs
SO ORDERED.

Republic of the Philippines

SUPREME COURT
Manila
EN BANC

G.R. Nos. L-21938-39 May 29, 1970

VICENTE URIARTE, petitioner,
vs.
THE COURT OF FIRST INSTANCE OF NEGROS OCCIDENTAL (12th Judicial District) THE COURT
OF FIRST INSTANCE OF MANILA, BRANCH IV, JUAN URIARTE ZAMACONA and HIGINIO
URIARTE, respondents.
Norberto J. Quisumbing for petitioner.
Taada, Teehankee & Carreon for respondents.

DIZON, J.:
On October 3, 1963 petitioner Vicente Uriarte filed an original petition for certiorari docketed as G.R. L21938 against the respondents Juan Uriarte Zamacona, Higinio Uriarte, and the Courts of First
Instance of Negros Occidental and of Manila, Branch IV, who will be referred to hereinafter as the Negros
Court and the Manila Court, respectively praying:
... that after due proceedings judgment be rendered annulling the orders of 19 April 1963
(Annex 'H') and 11 July 1963 (Annex 'I') of respondent Negros court dismissing the first
instituted Special Proceeding No. 6344, supra, and the order of 1 July 1963 (Annex 'K') of
respondent Manila court denying petitioner's omnibus motion to intervene and to dismiss
the later-instituted Special Proceeding No. 51396, supra, both special proceedings
pertaining to the settlement of the same estate of the same deceased, and consequently
annulling all proceedings had in Special Proceeding No. 51396; supra, of the respondent
Manila court as all taken without jurisdiction.
For the preservation of the rights of the parties pending these proceedings, petitioner
prays for the issuance of a writ of preliminary injunction enjoining respondents Manila

court, Juan Uriarte Zamacona and Higinio Uriarte from proceeding with Special
Proceeding No. 51396, supra, until further orders of this Court.
Reasons in support of said petition are stated therein as follows:
6. Respondent Negros court erred in dismissing its Special Proceeding No. 6344, supra,
and failing to declare itself 'the court first taking cognizance of the settlement of the estate
of' the deceased Don Juan Uriarte y Goite as prescribed in Rule 75 section 1 of the Rules
of Court. Respondent Manila court erred in failing to dismiss its Special Proceeding No.
51396, supra, notwithstanding proof of prior filing of Special Proceeding No. 6344, supra,
in the Negros court.
The writ of preliminary injunction prayed for was granted and issued by this Court on October 24, 1963.
On April 22, 1964 petitioner filed against the same respondents a pleading entitled SUPPLEMENTAL
PETITION FOR MANDAMUS docketed in this Court as G.R. No. L-21939 praying, for the reasons
therein stated, that judgment be rendered annulling the orders issued by the Negros Court on December
7, 1963 and February 26, 1964, the first disapproving his record on appeal and the second denying his
motion for reconsideration, and further commanding said court to approve his record on appeal and to
give due course to his appeal. On July 15, 1964 We issued a resolution deferring action on this
Supplemental Petition until the original action for certiorari (G.R. L-21938) is taken up on the merits.
On October 21, 1963 the respondents in G.R. L-21938 filed their answer traversing petitioner's contention
that the respondent courts had committed grave abuse of discretion in relation to the matters alleged in
the petition forcertiorari.
It appears that on November 6, 1961 petitioner filed with the Negros Court a petition for the settlement of
the estate of the late Don Juan Uriarte y Goite (Special Proceeding No. 6344) alleging therein, inter alia,
that, as a natural son of the latter, he was his sole heir, and that, during the lifetime of said decedent,
petitioner had instituted Civil Case No. 6142 in the same Court for his compulsory acknowledgment as
such natural son. Upon petitioner's motion the Negros Court appointed the Philippine National Bank as
special administrator on November 13, 1961 and two days later it set the date for the hearing of the
petition and ordered that the requisite notices be published in accordance with law. The record discloses,
however, that, for one reason or another, the Philippine, National Bank never actually qualified as special
administrator.
On December 19, 1961, Higinio Uriarte, one of the two private respondents herein, filed an opposition to
the above-mentioned petition alleging that he was a nephew of the deceased Juan Uriarte y Goite who
had "executed a Last Will and Testament in Spain, a duly authenticated copy whereof has been requested
and which shall be submitted to this Honorable Court upon receipt thereof," and further questioning
petitioner's capacity and interest to commence the intestate proceeding.
On August 28, 1962, Juan Uriarte Zamacona, the other private respondent, commenced Special
Proceeding No. 51396 in the Manila Court for the probate of a document alleged to be the last will of the
deceased Juan Uriarte y Goite, and on the same date he filed in Special Proceeding No. 6344 of the
Negros Court a motion to dismiss the same on the following grounds: (1) that, as the deceased Juan
Uriarte y Goite had left a last will, there was no legal basis to proceed with said intestate proceedings, and
(2) that petitioner Vicente Uriarte had no legal personality and interest to initiate said intestate

proceedings, he not being an acknowledged natural son of the decedent. A copy of the Petition for
Probate and of the alleged Will were attached to the Motion to Dismiss.
Petitioner opposed the aforesaid motion to dismiss contending that, as the Negros Court was first to take
cognizance of the settlement of the estate of the deceased Juan Uriarte y Goite, it had acquired exclusive
jurisdiction over same pursuant to Rule 75, Section 1 of the Rules of Court.
On April 19, 1963, the Negros Court sustained Juan Uriarte Zamacona's motion to dismiss and dismissed
the Special Proceeding No. 6344 pending before it. His motion for reconsideration of said order having
been denied on July 27, 1963, petitioner proceeded to file his notice of appeal, appeal bond and record
on appeal for the purpose of appealing from said orders to this court on questions of law. The
administrator with the will annexed appointed by the Manila Court in Special Proceeding No. 51396
objected to the approval of the record on appeal, and under date of December 7, 1963 the Negros Court
issued the following order:
Oppositor prays that the record on appeal filed by the petitioner on July 27, 1963, be
dismissed for having been filed out of time and for being incomplete. In the meantime,
before the said record on appeal was approved by this Court, the petitioner filed a petition
for certiorari before the Supreme Court entitled Vicente Uriarte, Petitioner, vs. Court of
First Instance of Negros Occidental, et al., G.R. No. L-21938, bringing this case squarely
before the Supreme Court on questions of law which is tantamount to petitioner's
abandoning his appeal from this Court.
WHEREFORE, in order to give way to the certiorari, the record on appeal filed by the
petitioner is hereby disapproved.
In view of the above-quoted order, petitioner filed the supplemental petition for mandamus mentioned
heretofore.
On April 15, 1963 Vicente Uriarte filed an Omnibus Motion in Special Proceeding No. 51396 pending in
the Manila Court, asking for leave to intervene therein; for the dismissal of the petition and the annulment
of the proceedings had in said special proceeding. This motion was denied by said court in its order of
July 1 of the same year.
It is admitted that, as alleged in the basic petition filed in Special Proceeding No. 6344 of the Negros
Court, Vicente Uriarte filed in the same court, during the lifetime of Juan Uriarte y Goite, Civil Case No.
6142 to obtain judgment for his compulsory acknowledgment as his natural child. Clearly inferrable from
this is that at the time he filed the action, as well as when he commenced the aforesaid special
proceeding, he had not yet been acknowledged as natural son of Juan Uriarte y Goite. Up to this time, no
final judgment to that effect appears to have been rendered.
The record further discloses that the special proceeding before the Negros Court has not gone farther
than the appointment of a special administrator in the person of the Philippine National Bank who, as
stated heretofore, failed to qualify.
On the other hand, it is not disputed that, after proper proceedings were had in Special Proceeding No.
51396, the Manila Court admitted to probate the document submitted to, it as the last will of Juan Uriarte y
Goite, the petition for probate appearing not to have been contested. It appears further that, as stated

heretofore, the order issued by the Manila Court on July 1, 1963 denied petitioner. Vicente Uriarte's
Omnibus Motion for Intervention, Dismissal of Petition and Annulment of said proceedings.
Likewise, it is not denied that to the motion to dismiss the special proceeding pending before the Negros
Court filed by Higinio Uriarte were attached a copy of the alleged last will of Juan Uriarte y Goite and of
the petition filed with the Manila Court for its probate. It is clear, therefore, that almost from the start of
Special Proceeding No. 6344, the Negros Court and petitioner Vicente Uriarte knew of the existence of
the aforesaid last will and of the proceedings for its probate.
The principal legal questions raised in the petition for certiorari are (a) whether or not the Negros Court
erred in dismissing Special Proceeding No. 6644, on the one hand, and on the other, (b) whether the
Manila Court similarly erred in not dismissing Special Proceeding No. 51396 notwithstanding proof of the
prior filing of Special Proceeding No. 6344 in the Negros Court.
Under the Judiciary Act of 1948 [Section 44, paragraph (e)], Courts of First Instance have original
exclusive jurisdiction over "all matters of probate," that is, over special proceedings for the settlement of
the estate of deceased persons whether they died testate or intestate. While their jurisdiction over such
subject matter is beyond question, the matter of venue, or the particular Court of First Instance where the
special proceeding should be commenced, is regulated by former Rule 75, Section 1 of the Rules of
Court, now Section 1, Rule 73 of the Revised Rules of Court, which provides that the estate of a decedent
inhabitant of the Philippines at the time of his death, whether a citizen or an alien, shall be in the court of
first instance in the province in which he resided at the time of his death, and if he is an inhabitant of a
foreign country, the court of first instance of any province in which he had estate. Accordingly, when the
estate to be settled is that of a non-resident alien like the deceased Juan Uriarte y Goite the Courts
of First Instance in provinces where the deceased left any property have concurrent jurisdiction to take
cognizance of the proper special proceeding for the settlement of his estate. In the case before Us, these
Courts of First Instance are the Negros and the Manila Courts province and city where the deceased
Juan Uriarte y Goite left considerable properties. From this premise petitioner argues that, as the Negros
Court had first taken cognizance of the special proceeding for the settlement of the estate of said
decedent (Special Proceeding No. 6344), the Manila Court no longer had jurisdiction to take cognizance
of Special Proceeding No. 51396 intended to settle the estate of the same decedent in accordance with
his alleged will, and that consequently, the first court erred in dismissing Special Proceeding No. 6344,
while the second court similarly erred in not dismissing Special Proceeding No. 51396.
It can not be denied that a special proceeding intended to effect the distribution of the estate of a
deceased person, whether in accordance with the law on intestate succession or in accordance with his
will, is a "probate matter" or a proceeding for the settlement of his estate. It is equally true, however, that
in accordance with settled jurisprudence in this jurisdiction, testate proceedings, for the settlement of the
estate of a deceased person take precedence over intestate proceedings for the same purpose. Thus it
has been held repeatedly that, if in the course of intestate proceedings pending before a court of first
instance it is found it hat the decedent had left a last will, proceedings for the probate of the latter should
replace the intestate proceedings even if at that stage an administrator had already been appointed, the
latter being required to render final account and turn over the estate in his possession to the executor
subsequently appointed. This, however, is understood to be without prejudice that should the alleged last
will be rejected or is disapproved, the proceeding shall continue as an intestacy. As already adverted to,
this is a clear indication that proceedings for the probate of a will enjoy priority over intestate proceedings.

Upon the facts before Us the question arises as to whether Juan Uriarte Zamacona should have filed the
petition for the probate of the last will of Juan Uriarte y Goite with the Negros Court particularly in
Special Proceeding No. 6344 or was entitled to commence the corresponding separate proceedings,
as he did, in the Manila Court.
The following considerations and the facts of record would seem to support the view that he should have
submitted said will for probate to the Negros Court, either in a separate special proceeding or in an
appropriate motion for said purpose filed in the already pending Special Proceeding No. 6344. In the first
place, it is not in accord with public policy and the orderly and inexpensive administration of justice to
unnecessarily multiply litigation, especially if several courts would be involved. This, in effect, was the
result of the submission of the will aforesaid to the Manila Court. In the second place, when respondent
Higinio Uriarte filed an opposition to Vicente Uriarte's petition for the issuance of letters of administration,
he had already informed the Negros Court that the deceased Juan Uriarte y Goite had left a will in Spain,
of which a copy had been requested for submission to said court; and when the other respondent, Juan
Uriarte Zamacona, filed his motion to dismiss Special Proceeding No. 6344, he had submitted to the
Negros Court a copy of the alleged will of the decedent, from which fact it may be inferred that, like
Higinio Uriarte, he knew before filing the petition for probate with the Manila Court that there was already
a special proceeding pending in the Negros Court for the settlement of the estate of the same deceased
person. As far as Higinio Uriarte is concerned, it seems quite clear that in his opposition to petitioner's
petition in Special Proceeding No. 6344, he had expressly promised to submit said will for probate to the
Negros Court.
But the fact is that instead of the aforesaid will being presented for probate to the Negros Court, Juan
Uriarte Zamacona filed the petition for the purpose with the Manila Court. We can not accept petitioner's
contention in this regard that the latter court had no jurisdiction to consider said petition, albeit we say that
it was not the proper venue therefor.
It is well settled in this jurisdiction that wrong venue is merely a waiveable procedural defect, and, in the
light of the circumstances obtaining in the instant case, we are of the opinion, and so hold, that petitioner
has waived the right to raise such objection or is precluded from doing so by laches. It is enough to
consider in this connection that petitioner knew of the existence of a will executed by Juan Uriarte y Goite
since December 19, 1961 when Higinio Uriarte filed his opposition to the initial petition filed in Special
Proceeding No. 6344; that petitioner likewise was served with notice of the existence (presence) of the
alleged last will in the Philippines and of the filing of the petition for its probate with the Manila Court since
August 28, 1962 when Juan Uriarte Zamacona filed a motion for the dismissal of Special Proceeding No.
6344. All these notwithstanding, it was only on April 15, 1963 that he filed with the Manila Court in Special
Proceeding No. 51396 an Omnibus motion asking for leave to intervene and for the dismissal and
annulment of all the proceedings had therein up to that date; thus enabling the Manila Court not only to
appoint an administrator with the will annexed but also to admit said will to probate more than five months
earlier, or more specifically, on October 31, 1962. To allow him now to assail the exercise of jurisdiction
over the probate of the will by the Manila Court and the validity of all the proceedings had in Special
Proceeding No. 51396 would put a premium on his negligence. Moreover, it must be remembered that
this Court is not inclined to annul proceedings regularly had in a lower court even if the latter was not
the proper venue therefor, if the net result would be to have the same proceedings repeated in some
other court of similar jurisdiction; more so in a case like the present where the objection against said
proceedings is raised too late.

In his order of April 19, 1963 dismissing Special Proceeding No. 6344, Judge Fernandez of the Negros
Court said that he was "not inclined to sustain the contention of the petitioner that inasmuch as the herein
petitioner has instituted Civil Case No. 6142 for compulsory acknowledgment by the decedent such action
justifies the institution by him of this proceedings. If the petitioner is to be consistent with the authorities
cited by him in support of his contention, the proper thing for him to do would be to intervene in the testate
estate proceedings entitled Special Proceedings No. 51396 in the Court of First Instance of Manila
instead of maintaining an independent action, for indeed his supposed interest in the estate of the
decedent is of his doubtful character pending the final decision of the action for compulsory
acknowledgment."
We believe in connection with the above matter that petitioner is entitled to prosecute Civil Case No. 6142
until it is finally determined, or intervene in Special Proceeding No. 51396 of the Manila Court, if it is still
open, or to ask for its reopening if it has already been closed, so as to be able to submit for determination
the question of his acknowledgment as natural child of the deceased testator, said court having, in its
capacity as a probate court, jurisdiction to declare who are the heirs of the deceased testator and whether
or not a particular party is or should be declared his acknowledged natural child (II Moran on Rules of
Court, 1957 Ed., p. 476; Conde vs. Abaya, 13 Phil. 249; Severino vs. Severino, 44 Phil. 343; Lopez vs.
Lopez, 68 Phil. 227, and Jimoga-on vs. Belmonte, 47 O. G. 1119).
Coming now to the supplemental petition for mandamus (G.R. No. L-21939), We are of the opinion, and
so hold, that in view of the conclusions heretofore stated, the same has become moot and academic. If
the said supplemental petition is successful, it will only result in compelling the Negros Court to give due
course to the appeal that petitioner was taking from the orders of said court dated December 7, 1963 and
February 26, 1964, the first being the order of said court dismissing Special Proceeding No. 6344, and the
second being an order denying petitioner's motion for the reconsideration of said order of dismissal. Said
orders being, as a result of what has been said heretofore beyond petitioner's power to contest, the
conclusion can not be other than that the intended appeal would serve no useful purpose, or, worse still,
would enable petitioner to circumvent our ruling that he can no longer question the validity of said orders.
IN VIEW OF THE FOREGOING CONSIDERATIONS, judgment is hereby rendered denying the writs
prayed for and, as a result, the petition for certiorari filed in G.R. No. L-21938, as well as the supplemental
petition formandamus docketed as G.R. No. L-21939, are hereby dismissed. The writ of preliminary
injunction heretofore issued is set aside. With costs against petitioner.

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. L-6801

March 14, 1912

JULIANA BAGTAS, plaintiffs-appellee,

vs.
ISIDRO PAGUIO, ET AL., defendants-appellants.
Salas and Kalaw for appellants.
Jose Santiago for appellee.
TRENT, J.:
This is an appeal from an order of the Court of First Instance of the Province of Bataan, admitting to
probate a document which was offered as the last will and testament of Pioquinto Paguio y Pizarro. The
will purports to have been executed in the pueblo of Pilar, Province of Bataan, on the 19th day of April,
1908. The testator died on the 28th of September, 1909, a year and five months following the date of the
execution of the will. The will was propounded by the executrix, Juliana Bagtas, widow of the decedent,
and the opponents are a son and several grandchildren by a former marriage, the latter being the children
of a deceased daughter.
The basis of the opposition to the probation of the will is that the same was not executed according to the
formalities and requirements of the law touching wills, and further that the testator was not in the full of
enjoyment and use of his mental faculties and was without the mental capacity necessary to execute a
valid will.
The record shows that the testator, Pioquinto Paguio, for some fourteen of fifteen years prior to the time of
his death suffered from a paralysis of the left side of his body; that a few years prior to his death his
hearing became impaired and that he lost the power of speech. Owing to the paralysis of certain muscles
his head fell to one side, and saliva ran from his mouth. He retained the use of his right hand, however,
and was able to write fairly well. Through the medium of signs he was able to indicate his wishes to his
wife and to other members of his family.
At the time of the execution of the will there were present the four testamentary witnesses, Agustin
Paguio, Anacleto Paguio, and Pedro Paguio, and attorney, Seor Marco, and one Florentino Ramos.
Anacleto Paguio and the attorney have since died, and consequently their testimony was not available
upon the trial of the case in the lower court. The other three testamentary witnesses and the witness
Florentino Ramos testified as to the manner in which the will was executed. According to the
uncontroverted testimony of these witnesses the will was executed in the following manner:
Pioquinto Paguio, the testator, wrote out on pieces of paper notes and items relating to the disposition of
his property, and these notes were in turn delivered to Seor Marco, who transcribed them and put them
in form. The witnesses testify that the pieces of paper upon which the notes were written are delivered to
attorney by the testator; that the attorney read them to the testator asking if they were his testamentary
dispositions; that the testator assented each time with an affirmative movement of his head; that after the
will as a whole had been thus written by the attorney, it was read in a loud voice in the presence of the
testator and the witnesses; that Seor Marco gave the document to the testator; that the latter, after
looking over it, signed it in the presence of the four subscribing witnesses; and that they in turn signed it in
the presence of the testator and each other.

These are the facts of record with reference to the execution of the will and we are in perfect accord with
the judgment of the lower court that the formalities of the Code of Civil Procedure have been fully
complied with.
This brings us now to a consideration of appellants' second assignment of error, viz, the testator's alleged
mental incapacity at the time of the execution of the will. Upon this point considerable evidence was
adduced at the trial. One of the attesting witnesses testified that at the time of the execution of the will the
testator was in his right mind, and that although he was seriously ill, he indicated by movements of his
head what his wishes were. Another of the attesting witnesses stated that he was not able to say whether
decedent had the full use of his mental faculties or not, because he had been ill for some years, and that
he (the witnesses) was not a physician. The other subscribing witness, Pedro Paguio, testified in the
lower court as a witness for the opponents. He was unable to state whether or not the will was the wish of
the testator. The only reasons he gave for his statement were the infirmity and advanced age of the
testator and the fact that he was unable to speak. The witness stated that the testator signed the will, and
he verified his own signature as a subscribing witness.
Florentino Ramos, although not an attesting witness, stated that he was present when the will was
executed and his testimony was cumulative in corroboration of the manner in which the will was executed
and as to the fact that the testator signed the will. This witness also stated that he had frequently
transacted matters of business for the decedent and had written letters and made inventories of his
property at his request, and that immediately before and after the execution of the will he had performed
offices of his character. He stated that the decedent was able to communicate his thoughts by writing. The
testimony of this witness clearly indicates the presence of mental capacity on the part of the testator.
Among other witnesses for the opponents were two physician, Doctor Basa and Doctor Viado. Doctor
Basa testified that he had attended the testator some four or five years prior to his death and that the
latter had suffered from a cerebral congestion from which the paralysis resulted. The following question
was propounded to Doctor Basa:
Q.
Referring to mental condition in which you found him the last time you attended him, do
you think he was in his right mind?
A.
I can not say exactly whether he was in his right mind, but I noted some mental disorder,
because when I spoke to him he did not answer me.
Doctor Basa testified at more length, but the substance of his testimony is that the testator had suffered a
paralysis and that he had noticed some mental disorder. He does not say that the testator was not in his
right mind at the time of the execution of the will, nor does he give it at his opinion that he was without the
necessary mental capacity to make a valid will. He did not state in what way this mental disorder had
manifested itself other than that he had noticed that the testator did not reply to him on one occasion
when he visited him.
Doctor Viado, the other physician, have never seen the testator, but his answer was in reply to a
hypothetical question as to what be the mental condition of a person who was 79 years old and who had
suffered from a malady such as the testator was supposed to have had according to the testimony of
Doctor Basa, whose testimony Doctor Viado had heard. He replied and discussed at some length the
symptoms and consequences of the decease from which the testator had suffered; he read in support of
his statements from a work by a German Physician, Dr. Herman Eichost. In answer, however, to a direct

question, he stated that he would be unable to certify to the mental condition of a person who was
suffering from such a disease.
We do not think that the testimony of these two physicians in any way strengthens the contention of the
appellants. Their testimony only confirms the fact that the testator had been for a number of years prior to
his death afflicted with paralysis, in consequence of which his physician and mental strength was greatly
impaired. Neither of them attempted to state what was the mental condition of the testator at the time he
executed the will in question. There can be no doubt that the testator's infirmities were of a very serious
character, and it is quite evident that his mind was not as active as it had been in the earlier years of his
life. However, we can not include from this that he wanting in the necessary mental capacity to dispose of
his property by will.
The courts have been called upon frequently to nullify wills executed under such circumstances, but the
weight of the authority is in support if the principle that it is only when those seeking to overthrow the will
have clearly established the charge of mental incapacity that the courts will intervene to set aside a
testamentary document of this character. In the case of Bugnao vs. Ubag (14 Phil. Rep., 163), the
question of testamentary capacity was discussed by this court. The numerous citations there given from
the decisions of the United States courts are especially applicable to the case at bar and have our
approval. In this jurisdiction the presumption of law is in favor of the mental capacity of the testator and
the burden is upon the contestants of the will to prove the lack of testamentary capacity. (In the matter of
the will of Cabigting, 14 Phil. Rep., 463; in the matter of the will of Butalid, 10 Phil. Rep., 27;
Hernaez vs. Hernaez, 1 Phil. Rep., 689.)
The rule of law relating to the presumption of mental soundness is well established, and the testator in the
case at bar never having been adjudged insane by a court of competent jurisdiction, this presumption
continues, and it is therefore incumbent upon the opponents to overcome this legal presumption by
proper evidence. This we think they have failed to do. There are many cases and authorities which we
might cite to show that the courts have repeatedly held that mere weakness of mind and body, induced by
age and disease do not render a person incapable of making a will. The law does not require that a
person shall continue in the full enjoyment and use of his pristine physical and mental powers in order to
execute a valid will. If such were the legal standard, few indeed would be the number of wills that could
meet such exacting requirements. The authorities, both medical and legal, are universal in statement that
the question of mental capacity is one of degree, and that there are many gradations from the highest
degree of mental soundness to the lowest conditions of diseased mentality which are denominated as
insanity and idiocy.
The right to dispose of property by testamentary disposition is as sacred as any other right which a
person may exercise and this right should not be nullified unless mental incapacity is established in a
positive and conclusive manner. In discussing the question of testamentary capacity, it is stated in volume
28, 70, of the American and English Encyclopedia of Law, that
Contrary to the very prevalent lay impression, perfect soundness of mind is not essential to
testamentary capacity. A testator may be afflicted with a variety of mental weaknesses, disorders,
or peculiarities and still be capable in law of executing a valid will. (See the numerous cases there
cited in support of this statement.)
The rule relating to testamentary capacity is stated in Buswell on Insanity, section 365, and quoted with
approval in Campbell vs. Campbell (130 Ill., 466), as follows:

To constitute a sound and disposing mind, it is not necessary that the mind shall be wholly
unbroken, unimpaired, or unshattered by disease or otherwise, or that the testator should be in
the full possession of his reasoning faculties.
In note, 1 Jarman on Wills, 38, the rule is thus stated:
The question is not so much, that was the degree of memory possessed by the testator, as, had
he a disposing memory? Was he able to remember the property he was about to bequeath, the
manner of disturbing it, and the objects of his bounty? In a word, were his mind and memory
sufficiently sound to enable him to know and understand the business in which he was engaged
at the time when he executed his will. (See authorities there cited.)
In Wilson vs. Mitchell (101 Penn., 495), the following facts appeared upon the trial of the case: The
testator died at the age of nearly 102 years. In his early years he was an intelligent and well informed
man. About seven years prior to his death he suffered a paralytic stroke and from that time his mind and
memory were mush enfeebled. He became very dull of hearing and in consequence of the shrinking of his
brain he was affected with senile cataract causing total blindness. He became filthy and obscene in his
habits, although formerly he was observant of the properties of life. The court, in commenting upon the
case, said:
Neither age, nor sickness, nor extreme distress, nor debility of body will affect the capacity to
make a will, if sufficient intelligence remains. The failure of memory is not sufficient to create the
incapacity, unless it be total, or extend to his immediate family or property. . . .
xxx

xxx

xxx

Dougal (the testator) had lived over one hundred years before he made the will, and his physical
and mental weakness and defective memory were in striking contrast with their strength in the
meridian of his life. He was blind; not deaf, but hearing impaired; his mind acted slowly, he was
forgetful or recent events, especially of names, and repeated questions in conversation; and
sometimes, when aroused for sleep or slumber, would seem bewildered. It is not singular that
some of those who had known him when he was remarkable for vigor and intelligence, are of the
opinion that his reason was so far gone that he was incapable of making a will, although they
never heard him utter an irrational expression.
In the above case the will was sustained. In the case at bar we might draw the same contrast as was
pictured by the court in the case just quoted. The striking change in the physical and mental vigor of the
testator during the last years of his life may have led some of those who knew him in his earlier days to
entertain doubts as to his mental capacity to make a will, yet we think that the statements of the witnesses
to the execution of the will and statements of the conduct of the testator at that time all indicate that he
unquestionably had mental capacity and that he exercised it on this occasion. At the time of the execution
of the will it does not appear that his conduct was irrational in any particular. He seems to have
comprehended clearly what the nature of the business was in which he was engaged. The evidence show
that the writing and execution of the will occupied a period several hours and that the testator was present
during all this time, taking an active part in all the proceedings. Again, the will in the case at bar is
perfectly reasonable and its dispositions are those of a rational person.

For the reasons above stated, the order probating the will should be and the same is hereby affirmed,
with costs of this instance against the appellants.

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. 4445

September 18, 1909

CATALINA BUGNAO, proponent-appellee,

vs.
FRANCISCO UBAG, ET AL., contestants-appellants.
Rodriguez and Del Rosario for appellants.
Fernando Salas for appellee.
CARSON, J.:
This is an appeal from an order of the Court of First Instance of Oriental Negros, admitting to probate a
document purporting to be the last will and testament of Domingo Ubag, deceased. The instrument was
propounded by his widow, Catalina Bugnao, the sole beneficiary thereunder, and probate was contested
by the appellants, who are brothers and sisters of the deceased, and who would be entitled to share in
the distribution of his estate, if probate were denied, as it appears that the deceased left no heirs in the
direct ascending or descending line.
Appellants contend that the evidence of record is not sufficient to establish the execution of the alleged
will in the manner and form prescribed in section 618 of the Code of Civil Procedure; and that at the time
when it is alleged that the will was executed, Ubag was not of sound mind and memory, and was
physically and mentally incapable of making a will.
The instrument propounded for probate purports to be the last will and testament of Domingo Ubag,
signed by him in the presence of three subscribing and attesting witnesses, and appears upon its face to

have been duly executed in accordance with the provisions of the Code of Civil Procedure touching the
making of wills.
Two of the subscribing witnesses, Victor J. Bingtoy and Catalino Mario, testified in support of the will, the
latter being the justice of the peace of the municipality wherein it was executed; and their testimony was
corroborated in all important details by the testimony of the proponent herself, who was present when the
will was made. It does not appear from the record why the third subscribing witness was not called; but
since counsel for the contestants makes no comment upon his absence, we think it may safely be inferred
that there was some good and sufficient reason therefore. In passing, however, it may be well to observe
that, when because of death, sickness, absence, or for any other reason, it is not practicable to call to the
witness stand all the subscribing witnesses to a will offered for probate, the reason for the absence of any
of these witnesses should be made to appear of record, and this especially in cases such as the one at
bar, wherein there is a contests.
The subscribing witnesses gave full and detailed accounts of the execution of the will and swore that the
testator, at the time of its execution, was of sound mind and memory, and in their presence attached his
signature thereto as his last will and testament, and that in his presence and in the presence of each
other, they as well as the third subscribing witness. Despite the searching and exhaustive crossexamination to which they were subjected, counsel for appellants could point to no flaw in their testimony
save an alleged contradiction as to a single incident which occurred at or about the time when the will was
executed a contradiction, however, which we think is more apparent than real. One of the witnesses
stated that the deceased sat up in bed and signed his name to the will, and that after its execution food
was given him by his wife; while the other testified that he was assisted into a sitting position, and was
given something to eat before he signed his name. We think the evidence discloses that his wife aided
the sick man to sit up in bed at the time when he signed his name to the instrument, and that he was
given nourishment while he was in that position, but it is not quite clear whether this was immediately
before or after, or both before and after he attached his signature to the will. To say that the sick man sat
up or raised himself up in bed is not necessarily in conflict with the fact that he received assistance in
doing so; and it is not at all improbable or impossible that nourishment might have been given to him both
before and after signing the will, and that one witness might remember the former occasion and the other
witness might recall the latter, although neither witness could recall both. But, however this may have
been, we do not think that a slight lapse of memory on the part of one or the other witness, as to the
precise details of an unimportant incident, to which his attention may not have been particularly directed,
is sufficient to raise a doubt as to the veracity of these witnesses, or as to the truth and accuracy of their
recollection of the fact of the execution of the instrument. Of course, a number of contradictions in the
testimony of alleged subscribing witnesses to a will as to the circumstances under which it was executed,
or even a single contradiction as to a particular incident, where the incident was of such a nature that the
intention of any person who was present must have been directed to it, and where the contradictory
statements in regard to it are so clear and explicit as to negative the possibility or probability of mistake,
might well be sufficient to justify the conclusion that the witnesses could not possibly have been present,
together, at the time when it is alleged the will was executed; but the apparent contradictions in the
testimony of the witnesses in the case at bar fall far short of raising a doubt a to their veracity, and on the
other hand their testimony as a whole gives such clear, explicit, and detailed account of all that occurred,
and is so convincing and altogether satisfactory that we have no doubt that the trial judge who heard them
testify properly accepted their testimony as worthy of entire confidence and belief.
The contestants put upon the stand four witnesses for the purpose of proving that at the time and on the
occasion when the subscribing witnesses testified that the will was executed, these witnesses were not in
the house with the testator, and that the alleged testator was at that time in such physical and mental

condition that it was impossible for him to have made a will. Two of these witnesses, upon crossexamination, admitted that they were not in the house at or between the hours of four and six in the
afternoon of the day on which the will is alleged to have been made, this being the time at which the
witnesses in support of the will testified that it was executed. Of the other witnesses, one is a contestant
of the will, Macario Ubag, a brother of the testator, and the other, Canuto Sinoy, his close relative. These
witnesses swore that they were in the house of the deceased, where he was lying ill, at or about the time
when it is alleged that the will was executed, and that at that time the alleged subscribing witnesses were
not in the house, and the alleged testator was so sick that he was unable to speak, to understand, or to
make himself understood, and that he was wholly incapacitated to make a will. But the testimony of
Macario Ubag is in our opinion wholly unworthy of credence. In addition to his manifest interest in the
result of the investigation, it clearly discloses a fixed and settled purpose to overthrow the will at all costs,
and to that end an utter disregard of the truth, and readiness to swear to any fact which he imagined
would aid in securing his object. An admittedly genuine and authentic signature of the deceased was
introduced in evidence for comparison with the signature attached to the will, but this witness in his
anxiety to deny the genuineness of the signature of his brother to the will, promptly and positively swore
that the admittedly genuine signature was not his brother's signature, and only corrected his erroneous
statement in response to a somewhat suggestive question by his attorney which evidently gave him to
understand that his former answer was likely to prejudice his own cause. On cross-examination, he was
forced to admit that because his brother and his brother's wife (in those favor the will was made) were
Aglipayanos, he and his other brothers and sisters had not visited them for many months prior to the one
particular occasion as to which testified; and he admitted further, that, although he lived near at hand, at
no time thereafter did he or any of the other members of his family visit their dying brother, and that they
did not even attend the funeral. If the testimony of this witness could be accepted as true, it would be a
remarkable coincidence indeed, that the subscribing witnesses to the alleged will should have falsely
pretended to have joined in its execution on the very day, and at the precise hour, when this interested
witness happened to pay his only visit to his brother during his last illness, so that the testimony of this
witness would furnish conclusive evidence in support of the allegations of the contestants that the alleged
will was not executed at the time and place or in the manner and form alleged by the subscribing
witnesses. We do not think that the testimony of this witness nor any of the other witnesses for the
contestants is sufficient to raise even a doubt as to the truth of the testimony of the subscribing witnesses
as to the fact of the execution of the will, or as to the manner and from in which it was executed.
In the course of the proceedings, an admittedly genuine signature of the deceased was introduced in
evidence, and upon a comparison of this signature with the signature attached to the instrument in
question, we are wholly of the opinion of the trial judge, who held in this connection as follows:
No expert evidence has been adduced with regard to these two signatures, and the presiding
judge of this court does not claim to possess any special expert knowledge in the matter of
signatures; nevertheless, the court has compared these two signatures, and does not find that
any material differences exists between the same. It is true that the signature which appears in
the document offered for authentication discloses that at the time of writing the subscriber was
more deliberate in his movements, but two facts must be acknowledge: First, that the testator was
seriously ill, and the other fact, that for some reason which is not stated the testator was unable to
see, and was a person who was not in the habit of signing his name every day.
These facts should sufficiently explain whatever difference may exist between the two signatures,
but the court finds that the principal strokes in the two signatures are identical.

That the testator was mentally capable of making the will is in our opinion fully established by the
testimony of the subscribing witnesses who swore positively that, at the time of its execution, he was of
sound mind and memory. It is true that their testimony discloses the fact that he was at that time
extremely ill, in an advanced stage of tuberculosis complicated with severe intermittent attacks of asthma;
that he was too sick to rise unaided from his bed; that he needed assistance even to rise himself to a
sitting position; and that during the paroxysms of asthma to which he was subject he could not speak; but
all this evidence of physical weakness in no wise establishes his mental incapacity or a lack of
testamentary capacity, and indeed the evidence of the subscribing witnesses as to the aid furnished them
by the testator in preparing the will, and his clear recollection of the boundaries and physical description
of the various parcels of land set out therein, taken together with the fact that he was able to give to the
person who wrote the will clear and explicit instructions as to his desires touching the disposition of his
property, is strong evidence of his testamentary capacity.
Counsel for appellant suggests that the fact that the alleged will leaves all the property of the testator to
his widow, and wholly fails to make any provision for his brothers or sisters, indicates a lack of
testamentary capacity and undue influence; and because of the inherent improbability that a man would
make so unnatural and unreasonable a will, they contend that this fact indirectly corroborates their
contention that the deceased never did in fact execute the will. But when it is considered that the
deceased at the time of his death had no heirs in the ascending or descending line; that a bitter family
quarrel had long separated him from his brothers and sisters, who declined to have any relations with the
testator because he and his wife were adherents of the Aglipayano Church; and that this quarrel was so
bitter that none of his brothers or sisters, although some of them lived in the vicinity, were present at the
time of his death or attended his funeral; we think the fact that the deceased desired to leave and did
leave all of his property to his widow and made no provision for his brothers and sisters, who themselves
were grown men and women, by no means tends to disclose either an unsound mind or the presence of
undue influence on the part of his wife, or in any wise corroborates contestants' allegation that the will
never was executed.
It has been said that "the difficulty of stating standards or tests by which to determine the degree of
mental capacity of a particular person has been everywhere recognized, and grows out of the inherent
impossibility of measuring mental capacity, or its impairment by disease or other causes"
(Greene vs. Greene, 145 III., 264, 276); and that "it is probable that no court has ever attempted to lay
down any definite rule in respect to the exact amount of mental capacity requisite for the making of a valid
will, without appreciating the difficulty of the undertaking" (Trish vs. Newell, 62 III., 196, 203).
Between the highest degree of soundness of mind and memory which unquestionably carries with it full
testamentary capacity, and that degree of mental aberration generally known as insanity or idiocy, there
are numberless degrees of mental capacity or incapacity, and while on one hand it has been held that
"mere weakness of mind, or partial imbecility from the disease of body, or from age, will not render a
person incapable of making a will, a weak or feeble minded person may make a valid will, provided he
has understanding memory sufficient to enable him to know what he is about, and how or to whom he is
disposing of his property" (Lodge vs.Lodge, 2 Houst. (Del.), 418); that, "To constitute a sound and
disposing mind, it is not necessary that the mind should be unbroken or unimpaired, unshattered by
disease or otherwise" (Sloan vs. Maxwell, 3 N. J. Eq., 563); that "it has not been understood that a
testator must possess these qualities (of sound and disposing mind and memory) in the highest
degree. . . . Few indeed would be the wills confirmed, if this is correct. Pain, sickness, debility of body,
from age or infirmity, would, according to its violence or duration, in a greater or less degree, break in
upon, weaken, or derange the mind, but the derangement must be such as deprives him of the rational
faculties common to man" (Den. vs. Vancleve, 5 N. J. L.,680); and, that "Sound mind does not mean a

perfectly balanced mind. The question of soundness is one of degree" (Boughton vs. Knight, L. R.,3 P. &
D., 64; 42 L. J. P., 25); on the other hand, it has been held that "testamentary incapacity does not
necessarily require that a person shall actually be insane or of an unsound mind. Weakness of intellect,
whether it arises from extreme old age from disease, or great bodily infirmities or suffering, or from all
these combined, may render the testator incapable of making a valid will, providing such weakness really
disqualifies her from knowing or appreciating the nature, effects, or consequences of the act she is
engaged in" (Manatt vs. Scott, 106 Iowa, 203; 68 Am. St. Rep., 293, 302).
But for the purposes of this decision it is not necessary for us to attempt to lay down a definition of
testamentary capacity which will cover all possible cases which may present themselves, because, as will
be seen from what has already been said, the testator was, at the time of making the instrument under
consideration, endowed with all the elements of mental capacity set out in the following definition of
testamentary capacity which has been frequently announced in courts of last resort in England and the
United States; and while is some cases testamentary capacity has been held to exist in the absence of
proof of some of these elements, there can be no question that, in the absence of proof of very
exceptional circumstances, proof of the existence of all these elements in sufficient to establish the
existence of testamentary capacity.
Testamentary capacity is the capacity to comprehend the nature of the transaction which the
testator is engaged at the time, to recollect the property to be disposed of and the person who
would naturally be supposed to have claims upon the testator, and to comprehend the manner in
which the instrument will distribute his property among the objects of his bounty.
(Cf. large array of cases cited in support of this definition in the Encyclopedia of Law, vol. 23, p. 71,
second edition.)
In our opinion, the evidence of record establishes in a strikingly conclusive manner the execution of the
instrument propounded as the last will and testament of the deceased; that it was made in strict
conformity with the requisites prescribed by law; and that, at the time of its execution, the deceased was
of sound mind and memory, and executed the instrument of his own free will and accord.
The order probating the will should be land is hereby affirmed, with the cost of this instance against the
appellants.

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

June 8, 1922

G.R. No. 17627

In re will of Marcelo Jocson, deceased,
RAFAEL JOCSON, ET AL., petitioners-appellees,
vs.
ROSAURO JOCSON, ET AL., opponents-appellants.

Araneta & Zaragoza for appellants.

M. Fernandez Yanson, Pio Sian Melliza and Montinola, Montinola & Hontiveros for appellees.

VILLAMOR, J.:

On June 10, 19120, Rafael Jocson, Cirilo Manlaque, and Filomena Goza presented a petition in the court
below for the probate of the document Exhibit A, as the last will and testament of the deceased Marcelo
Jocson. This petitioner was opposed by Rosauro, Asuncion, and Dominga Jocson, alleging that: (a) The
supposed will was not the last will of the deceased, and the signatures appearing thereon, and which are
said to be of the testator, are not authentic; (b) the testator, that is, the deceased, was not of sound mind
and was seriously ill at the time of its execution; and (c) the supposed will was not executed in
accordance with the law.

After trial the lower court rendered decision finding, among other things, as follows:

For all of the foregoing reasons the court finds that some hours before, during and one hour after, the
execution of his will, Marcelo Jocson was of sound mind; that he dictated his will in Visaya, his own
dialect; that he signed his will in the presence of three witnesses at the bottom, and on each of the left
margins of the three sheets in which it was written; that said three witnesses signed the will in the
presence of the testator and of each other, all of which requirements make the documents Exhibit A a
valid will, in accordance with the provision of section 618 of the Code of Civil Procedure, as amended by
Act No. 2645.

By virtue thereof, it is adjudged and decreed that the document Exhibit A Is the last will and testament of
the deceased Marcelo Jocson, and it is ordered that the same be admitted to probate, and Rafael Jocson

is hereby appointed administrator of the estate left by said deceased, upon the filing of a bond in the sum
of fifteen thousand pesos (P15,000).

The appellants allege that the trial court erred in holding that Exhibit A is the last will and testament of the
deceased Marcelo Jocson, and in ordering and decreeing the probate thereof as his last will.

All the arguments advanced by the appellants tend to show that the testator Marcelo Jocson, at the time
of executing the will, did not have the mental capacity necessary therefor; that said will was not signed b
the witnesses in the presence of the testator; that the witnesses did not sign the will in the presence of
each other; and that the attestation of the supposed will does not state that the witnesses signed in the
presence of the testator.

All of these points raised by the appellants were discussed at length by the trial court upon the evidence
introduced by the parties. After an examination of said evidence, we are of the opinion, and so hold, that
the findings made by the trial court upon the aforesaid point are supported by the preponderance of
evidence.

We have noticed certain conflicts between the declarations of the witnesses on some details prior to, and
simultaneous with, the execution of the will, but to our mind such discrepancies are not sufficient to raise
any doubt as to the veracity of their testimony. In the case of Bugnao vs. Ubag (14 Phil., 163), it was held:

While a number of contradictions in the testimony of alleged subscribing witnesses to a will as to the
circumstances under which it was executed, or a single contradiction as to a particular incident to which
the attention of such witnesses must have been directed, may in certain cases justify the conclusion that
the alleged witnesses were not present, together, at the time when the alleged will was executed, a mere
lapse of memory on the part of one of these witnesses as to the precise details of an unimportant
incident, to which his attention was not directed, does not necessarily put in doubt the truth and veracity of
the testimony in support of the execution of the will.

As to the mental capacity of the testator at the time of executing his will, the finding of the trial court that
the testator was of sound mind at the time of dictating and signing his will is supported by the evidence.
This court, in the case of Bagtas vs. Paguio (22 Phil., 227), held:

To constitute a sound mind and disposing memory it is not necessary that the mind shall be wholly
unbroken, unimpaired, and unshattered by disease or otherwise, or that the testator be in full possession
of all his reasoning faculties. Failure of memory is not sufficient unless it be total or extend to his
immediate family or property.

And in Bugnao vs. Ubag, supra, it was declared:

Proof of the existence of all the elements in the following definition of testamentary capacity, which has
frequently been adopted in the United States, held sufficient to establish the existence of such capacity in
the absence of proof of very exceptional circumstances: "Testamentary capacity is the capacity to
comprehend the nature of the transaction in which the testator is engaged at the time, to recollect the
property to be disposed of and the persons who would naturally be supposed to have claims upon the
testator, and to comprehend the manner in which the instrument will distribute his property among the
objects of this bounty."

Whether or not the witnesses signed the will in the presence of the testator and whether or not they
signed in the presence of each other, are questions of fact that must be decided in accordance with the
evidence. The trial judge, who tried this case and saw and heard the witnesses while testifying, held that
these solemnities were complied with at the execution of the will in question and we find no reason for
altering his conclusions.

The objection to the attestation of Exhibit A is groundless if the terms thereof are considered, which,
translated from the Visayan dialect, in which the will was written, into English, says:

We, witnesses, do hereby state that the document written on each side of the three sheets of paper was
executed, acknowledged, signed, and published by the testator abovenamed, Marcelo Jocson, who
declared that it was his last will and testament in our presence and, at his request and all of us being
present, we signed our named on the three sheets of paper as witnesses to this will in the presence of
each other. (Translation of Exhibit A, page 18, documentary evidence.)

The judgment appealed from is affirmed with the costs against the appellants. So ordered.