SPECPRO| RULE 76| 1

G.R. No. L-23135

December 26, 1967

Petitioner filed his opposition to the motion for dismissal on July 17, 1961
supplemented it by another opposition on August 14, 1961, and by a
rejoinder on August 21, 1961. Finally, on October 22, 1962 petitioner
moved to strike out the oppositors' pleadings on two grounds, namely:

TESTATE
ESTATE
OF
HILARION
RAMAGOSA.
MARIANO
SUMILANG, petitioner-appellee,
vs.
SATURNINA
RAMAGOSA,
SANTIAGO
RAMAGOSA,
ENRIQUE 1. That oppositors have no legal standing in court and they are bereft of
PABELLA, LICERIA PABELLA and ANDREA RAVALO, oppositors- personality to oppose the probate of the last will and testament of the
appellants.
testators; and
Gatchalian and Sison and J. A. Bardelosa, Jr. for petitioner-appellee.
Jose L. Desvarro Jr. for oppositors-appellants

2. That oppositors have no valid claim and interest in the distribution of

(the) estate of the aforesaid testator and no existing valid right whatsoever.

MAKALINTAL, J.:

On October 18, 1963 the court a quo issued the order now subject of this
appeal, which read as follows:

On July 5, 1960 Mariano Sumilang filed in the Court of First Instance of

Quezon a petition for the probate of a document alleged to be the last will
and testament of Hilarion Ramagosa, who died on December 1, 1959. Said
document, written in Tagalog and dated February 26, 1949, institutes
petitioner as sole heir of the testator.
The petition for probate was opposed by two (2) of oppositors appellants
herein who questioned the due execution of the document, claiming that
it was made under duress and was not really intended by the deceased to
be his last will and testament. Aside from merely opposing the petition for
probate, the first set of oppositors Saturnino and Santiago Ramagosa
also claimed that they, instead of petitioner, were entitled to inherit the
estate of the deceased. The other oppositors representing themselves
simply as next of kin, appropriately prayed only for the disallowance of the
will.
At the hearings of the petition petitioner adduced his evidence, and then
rested his case on February 16, 1961. Reception of oppositors' evidence
was set for July 14, 1961. However, on July 3, 1961 oppositors moved for
the dismissal of the petition for probate mainly on the ground that "the
court lacks jurisdiction over the subject-matter because the last will and
testament of the decedent, if ever it was really executed by him, was
revoked by implication of law six years before his death." Oppositors
alleged that after making the will Hilarion Ramagosa sold to petitioner
Mariano Sumilang and his brother Mario the parcels of land described
therein, so that at the time of the testator's death the titles to said lands
were no longer in his name.

Acting on the motion to dismiss filed by the oppositors dated July 31, 1961,
the same is hereby denied for the allegations contained therein goes (sic)
to the very intrinsic value of the will and other grounds stated on said
motion to dismiss are without merit.itc-alf With respect to the motion to
strike out opposition and all other pleadings of oppositors filed by the
petitioner, it appears that oppositors have no relationship whatsoever within
the fifth degree as provided by law and therefore the oppositors are totally
strangers to the deceased whose will is under probate. This being so, the
motion to strike out opposition and all other pleadings pertinent thereto is
hereby ordered stricken out of the record.
The petition below being for the probate of a will, the court's area of inquiry
is limited to the extrinsic validity thereof. The testator's testamentary
capacity and the compliance with the formal requisites or solemnities
prescribed by law are the only questions presented for the resolution of the
court. Any inquiry into the intrinsicvalidity or efficacy of the provisions of
the will or the legality of any devise or legacy is premature. (Nuguid vs.
Nuguid, G.R. No. L-23445, June 23, 1966).
To establish conclusively as against everyone and once for all, the facts that
a will was executed with the formalities required by law and that the
testator was in a condition to make a will, is the only purpose of the
proceedings . . . for the probate of a will. The judgment in such proceedings
determines and can determine nothing more. (Alemany, et al. vs. CFI of
Manila, 3 Phil. 424).

SPECPRO| RULE 76| 2

Oppositors would want the court a quo to dismiss petition for probate on
the ground that the testator had impliedly revoked his will by selling, prior
to his death, the lands disposed of therein.
True or not, the alleged sale is no ground for the dismissal of the petition
for probate. Probate is one thing the validity of the testamentary provisions
is another.itc-alf The first decides the execution of the document and the
testamentary capacity of the testator; the second relates to descent and
distribution.
The alleged revocation implied from the execution of the deeds of
conveyance in favor of the testamentary heir is plainly irrelevant to and
separate from the question of whether the testament was duly executed.
For one, if the will is not entitled to probate, or its probate is denied, all
questions of revocation become superfluous: in law, there is no such will
and hence there would be nothing to revoke. Then, again, the revocation
invoked by the oppositors-appellants is not an express one, but merely
implied from subsequent acts of the testatrix allegedly evidencing an
abandonment of the original intention to bequeath or devise the properties
concerned. As such, the revocation would not affect the will itself, but
merely the particular devise or legacy.itc-alf (Fernandez, et al. vs.
Dimagiba, L-23638 and Reyes, et al. vs. Dimagiba, L-23662, October 12,
1967.)
In their brief, oppositors do not take issue with the court a quo's finding
that they "have no relationship whatsoever within the fifth degree as
provided by law and therefore . . . are totally (sic) strangers to the
deceased whose will is under probate." They do not attempt to show that
they have some interest in the estate which must be protected. The
uncontradicted evidence, consisting of certified true copies of the parties'
baptism and marriage certificates, support the said court's finding in this
respect.
It is a well-settled rule that in order that a person may be allowed to
intervene in a probate proceeding he must have an interest in the estate, or
in the will, or in the property to be affected by it either as executor or as a
claimant of the estate (Ngo The Hua vs. Chung Kiat Hua, et al., L-17091,
September 30, 1963); and an interested party has been defined as one
who would be benefited by the estate such as an heir or one who has a
claim against the estate like a creditor. (Teotico vs. Del Val, etc., G.R. No. L18753, March 26, 1965.)

The reason for the rule excluding strangers from contesting the will, is not
that thereby the court may be prevented from learning facts which would
justify or necessitate a denial of probate, but rather that the courts and the
litigants should not be molested by the intervention in the proceedings of
persons with no interest in the estate which would entitle them to be heard
with relation thereto. (Paras vs. Narciso, 35 Phil. 244.)
Sometime after this case was elevated to this Court appellee moved to
dismiss the appeal on the ground that the order appealed from is
interlocutory. We deferred action on the motion until after the brief of both
parties had been filed. The motion, although now practically academic in
view of our resolution of the main issue involved, must be denied, since the
order of the lower court striking out appellants' opposition to the probate of
the will on the ground that they have no personality to intervene in the
case, was final and therefore appealable order insofar as they were
concerned.

SPECPRO| RULE 76| 3

G.R. No. 72706 October 27, 1987

CONSTANTINO
C.
ACAIN, petitioner,
vs.
HON. INTERMEDIATE APPELLATE COURT (Third Special Cases
Division), VIRGINIA A. FERNANDEZ and ROSA DIONGSON,
respondents.

PARAS, J.:
This is a petition for review on certiorari of the decision * of respondent.
Court of Appeals in AC-G.R. SP No. 05744 promulgated on August 30, 1985
(Rollo, p. 108) ordering the dismissal of the petition in Special Proceedings
No, 591 ACEB and its Resolution issued on October 23, 1985 (Rollo, p. 72)
denying respondents' (petitioners herein) motion for reconsideration.
The dispositive portion of the questioned decision reads as follows:
WHEREFORE, the petition is hereby granted and respondent Regional Trial
Court of the Seventh Judicial Region, Branch XIII (Cebu City), is hereby
ordered to dismiss the petition in Special Proceedings No. 591 ACEB No
special pronouncement is made as to costs.
The antecedents of the case, based on the summary of the Intermediate
Appellate Court, now Court of Appeals, (Rollo, pp. 108-109) are as follows:
On May 29, 1984 petitioner Constantino Acain filed on the Regional Trial
Court of Cebu City Branch XIII, a petition for the probate of the will of the
late Nemesio Acain and for the issuance to the same petitioner of letters
testamentary, docketed as Special Proceedings No. 591 ACEB (Rollo, p. 29),
on the premise that Nemesio Acain died leaving a will in which petitioner
and his brothers Antonio, Flores and Jose and his sisters Anita, Concepcion,
Quirina and Laura were instituted as heirs. The will allegedly executed by
Nemesio Acain on February 17, 1960 was written in Bisaya (Rollo, p. 27)
with a translation in English (Rollo, p. 31) submi'tted by petitioner without
objection raised by private respondents. The will contained provisions on
burial rites, payment of debts, and the appointment of a certain Atty.
Ignacio G. Villagonzalo as the executor of the testament. On the disposition
of the testator's property, the will provided:

THIRD: All my shares that I may receive from our properties. house, lands
and money which I earned jointly with my wife Rosa Diongson shall all be
given by me to my brother SEGUNDO ACAIN Filipino, widower, of legal age
and presently residing at 357-C Sanciangko Street, Cebu City. In case my
brother Segundo Acain pre-deceased me, all the money properties, lands,
houses there in Bantayan and here in Cebu City which constitute my share
shall be given to me to his children, namely: Anita, Constantino,
Concepcion, Quirina, laura, Flores, Antonio and Jose, all surnamed Acain.
Obviously, Segundo pre-deceased Nemesio. Thus it is the children of
Segundo who are claiming to be heirs, with Constantino as the petitioner in
Special Proceedings No. 591 ACEB
After the petition was set for hearing in the lower court on June 25, 1984
the oppositors (respondents herein Virginia A. Fernandez, a legally adopted
daughter of tile deceased and the latter's widow Rosa Diongson Vda. de
Acain filed a motion to dismiss on the following grounds for the petitioner
has no legal capacity to institute these proceedings; (2) he is merely a
universal heir and (3) the widow and the adopted daughter have been
pretirited. (Rollo, p. 158). Said motion was denied by the trial judge.
After the denial of their subsequent motion for reconsideration in the lower
court, respondents filed with the Supreme Court a petition for certiorari and
prohibition with preliminary injunction which was subsequently referred to
the Intermediate Appellate Court by Resolution of the Court dated March
11, 1985 (Memorandum for Petitioner, p. 3; Rollo, p. 159).
Respondent Intermediate Appellate Court granted private respondents'
petition and ordered the trial court to dismiss the petition for the probate of
the will of Nemesio Acain in Special Proceedings No. 591 ACEB
His motion for reconsideration having been denied, petitioner filed this
present petition for the review of respondent Court's decision on December
18, 1985 (Rollo, p. 6). Respondents' Comment was filed on June 6, 1986
(Rollo, p. 146).
On August 11, 1986 the Court resolved to give due course to the petition
(Rollo, p. 153). Respondents' Memorandum was filed on September 22,
1986 (Rollo, p. 157); the Memorandum for petitioner was filed on
September 29, 1986 (Rollo, p. 177).
Petitioner raises the following issues (Memorandum for petitioner, p. 4):

SPECPRO| RULE 76| 4

(A) The petition filed in AC-G.R. No. 05744 for certiorari and prohibition
with preliminary injunction is not the proper remedy under the premises;
(B) The authority of the probate courts is limited only to inquiring into the
extrinsic validity of the will sought to be probated and it cannot pass upon
the intrinsic validity thereof before it is admitted to probate;
(C) The will of Nemesio Acain is valid and must therefore, be admitted to
probate. The preterition mentioned in Article 854 of the New Civil Code
refers to preterition of "compulsory heirs in the direct line," and does not
apply to private respondents who are not compulsory heirs in the direct
line; their omission shall not annul the institution of heirs;
(D) DICAT TESTATOR ET MERIT LEX. What the testator says will be the law;
(E) There may be nothing in Article 854 of the New Civil Code, that
suggests that mere institution of a universal heir in the will would give the
heir so instituted a share in the inheritance but there is a definite distinct
intention of the testator in the case at bar, explicitly expressed in his will.
This is what matters and should be in violable.
(F) As an instituted heir, petitioner has the legal interest and standing to file
the petition in Sp. Proc. No. 591 ACEB for probate of the will of Nemesio
Acain and
(G) Article 854 of the New Civil Code is a bill of attainder. It is therefore
unconstitutional and ineffectual.
The pivotal issue in this case is whether or not private respondents have
been pretirited.
Article 854 of the Civil Code provides:
Art. 854. The preterition or omission of one, some, or all of the compulsory
heirs in the direct line, whether living at the time of the execution of the will
or born after the death of the testator, shall annul the institution of heir;
but the devisees and legacies shall be valid insofar as they are not;
inofficious.
If the omitted compulsory heirs should die before the testator, the
institution shall he effectual, without prejudice to the right of
representation.

Preterition consists in the omission in the testator's will of the forced heirs
or anyone of them either because they are not mentioned therein, or,
though mentioned, they are neither instituted as heirs nor are expressly
disinherited (Nuguid v. Nuguid, 17 SCRA 450 [1966]; Maninang v. Court of
Appeals, 114 SCRA 478 [1982]). Insofar as the widow is concerned, Article
854 of the Civil Code may not apply as she does not ascend or descend
from the testator, although she is a compulsory heir. Stated otherwise, even
if the surviving spouse is a compulsory heir, there is no preterition even if
she is omitted from the inheritance, for she is not in the direct line. (Art.
854, Civil code) however, the same thing cannot be said of the other
respondent Virginia A. Fernandez, whose legal adoption by the testator has
not been questioned by petitioner (.Memorandum for the Petitioner, pp. 89). Under Article 39 of P.D. No. 603, known as the Child and Youth Welfare
Code, adoption gives to the adopted person the same rights and duties as if
he were a legitimate child of the adopter and makes the adopted person a
legal heir of the adopter. It cannot be denied that she has totally omitted
and preterited in the will of the testator and that both adopted child and the
widow were deprived of at least their legitime. Neither can it be denied that
they were not expressly disinherited. Hence, this is a clear case of
preterition of the legally adopted child.
Pretention annuls the institution of an heir and annulment throws open to
intestate succession the entire inheritance including "la porcion libre (que)
no hubiese dispuesto en virtual de legado mejora o donacion" Maniesa as
cited in Nuguid v. Nuguid, supra; Maninang v. Court of Appeals, 114 SCRA
[1982]). The only provisions which do not result in intestacy are the
legacies and devises made in the will for they should stand valid and
respected, except insofar as the legitimes are concerned.
The universal institution of petitioner together with his brothers and sisters
to the entire inheritance of the testator results in totally abrogating the will
because the nullification of such institution of universal heirs-without any
other testamentary disposition in the will-amounts to a declaration that
nothing at all was written. Carefully worded and in clear terms, Article 854
of the Civil Code offers no leeway for inferential interpretation (Nuguid v.
Nuguid), supra. No legacies nor devises having been provided in the will the
whole property of the deceased has been left by universal title to petitioner
and his brothers and sisters. The effect of annulling the "Institution of heirs
will be, necessarily, the opening of a total intestacy (Neri v. Akutin, 74 Phil.
185 [1943]) except that proper legacies and devises must, as already
stated above, be respected.

SPECPRO| RULE 76| 5

We now deal with another matter. In order that a person may be allowed to
intervene in a probate proceeding he must have an interest iii the estate, or
in the will, or in the property to be affected by it either as executor or as a
claimant of the estate and an interested party is one who would be
benefited by the estate such as an heir or one who has a claim against the
estate like a creditor (Sumilang v. Ramagosa, 21 SCRA 1369/1967).
Petitioner is not the appointed executor, neither a devisee or a legatee there
being no mention in the testamentary disposition of any gift of an individual
item of personal or real property he is called upon to receive (Article 782,
Civil Code). At the outset, he appears to have an interest in the will as an
heir, defined under Article 782 of the Civil Code as a person called to the
succession either by the provision of a will or by operation of law. However,
intestacy having resulted from the preterition of respondent adopted child
and the universal institution of heirs, petitioner is in effect not an heir of the
testator. He has no legal standing to petition for the probate of the will left
by the deceased and Special Proceedings No. 591 A-CEB must be
dismissed.
As a general rule certiorari cannot be a substitute for appeal, except when
the questioned order is an oppressive exercise of j judicial authority (People
v. Villanueva, 110 SCRA 465 [1981]; Vda. de Caldito v. Segundo, 117 SCRA
573 [1982]; Co Chuan Seng v. Court of Appeals, 128 SCRA 308 [1984];
and Bautista v. Sarmiento, 138 SCRA 587 [1985]). It is axiomatic that the
remedies of certiorari and prohibition are not available where the petitioner
has the remedy of appeal or some other plain, speedy and adequate
remedy in the course of law (DD Comendador Construction Corporation v.
Sayo (118 SCRA 590 [1982]). They are, however, proper remedies to
correct a grave abuse of discretion of the trial court in not dismissing a case
where the dismissal is founded on valid grounds (Vda. de Bacang v. Court
of Appeals, 125 SCRA 137 [1983]).
Special Proceedings No. 591 ACEB is for the probate of a will. As stated by
respondent Court, the general rule is that the probate court's authority is
limited only to the extrinsic validity of the will, the due execution thereof,
the testator's testamentary capacity and the compliance with the requisites
or solemnities prescribed by law. The intrinsic validity of the will normally
comes only after the Court has declared that the will has been duly
authenticated. Said court at this stage of the proceedings is not called upon
to rule on the intrinsic validity or efficacy of the provisions of the will
(Nuguid v. Nuguid, 17 SCRA 449 [1966]; Sumilang v. Ramagosa, supra;
Maninang v. Court of Appeals, 114 SCRA 478 [1982]; Cayetano v. Leonides,

129 SCRA 522 [1984]; and Nepomuceno v. Court of Appeals, 139 SCRA
206 [1985]).
The rule, however, is not inflexible and absolute. Under exceptional
circumstances, the probate court is not powerless to do what the situation
constrains it to do and pass upon certain provisions of the will
(Nepomuceno v. Court of Appeals, supra). In Nuguid v. Nuguid the
oppositors to the probate moved to dismiss on the ground of absolute
preteriton The probate court acting on the motion held that the will in
question was a complete nullity and dismissed the petition without costs.
On appeal the Supreme Court upheld the decision of the probate court,
induced by practical considerations. The Court said:
We pause to reflect. If the case were to be remanded for probate of the
will, nothing will be gained. On the contrary, this litigation will be
protracted. And for aught that appears in the record, in the event of
probate or if the court rejects the will, probability exists that the case will
come up once again before us on the same issue of the intrinsic validity or
nullity of the will. Result: waste of time, effort, expense, plus added
anxiety. These are the practical considerations that induce us to a belief
that we might as well meet head-on the issue of the validity of the
provisions of the will in question. After all there exists a justiciable
controversy crying for solution.
In Saguimsim v. Lindayag (6 SCRA 874 [1962]) the motion to dismiss the
petition by the surviving spouse was grounded on petitioner's lack of legal
capacity to institute the proceedings which was fully substantiated by the
evidence during the hearing held in connection with said motion. The Court
upheld the probate court's order of dismissal.
In Cayetano v. Leonides, supra one of the issues raised in the motion to
dismiss the petition deals with the validity of the provisions of the will.
Respondent Judge allowed the probate of the will. The Court held that as on
its face the will appeared to have preterited the petitioner the respondent
judge should have denied its probate outright. Where circumstances
demand that intrinsic validity of testamentary provisions be passed upon
even before the extrinsic validity of the will is resolved, the probate court
should meet the issue. (Nepomuceno v. Court of Appeals, supra; Nuguid v.
Nuguid, supra).
In the instant case private respondents filed a motion to dismiss the
petition in Sp. Proceedings No. 591 ACEB of the Regional Trial Court of Cebu

SPECPRO| RULE 76| 6

on the following grounds: (1) petitioner has no legal capacity to institute

the proceedings; (2) he is merely a universal heir; and (3) the widow and
the adopted daughter have been preterited (Rollo, p. 158). It was denied by
the trial court in an order dated January 21, 1985 for the reason that "the
grounds for the motion to dismiss are matters properly to be resolved after
a hearing on the issues in the course of the trial on the merits of the case
(Rollo, p. 32). A subsequent motion for reconsideration was denied by the
trial court on February 15, 1985 (Rollo, p. 109).
For private respondents to have tolerated the probate of the will and
allowed the case to progress when on its face the will appears to be
intrinsically void as petitioner and his brothers and sisters were instituted as
universal heirs coupled with the obvious fact that one of the private
respondents had been preterited would have been an exercise in futility. It
would have meant a waste of time, effort, expense, plus added futility. The
trial court could have denied its probate outright or could have passed upon
the intrinsic validity of the testamentary provisions before the extrinsic
validity of the will was resolved (Cayetano v. Leonides, supra; Nuquid v.
Nuguid, supra. The remedies of certiorari and prohibition were properly
availed of by private respondents.
Thus, this Court ruled that where the grounds for dismissal are indubitable,
the defendants had the right to resort to the more speedy, and adequate
remedies of certiorari and prohibition to correct a grave abuse of discretion,
amounting to lack of jurisdiction, committed by the trial court in not
dismissing the case, (Vda. de Bacang v. Court of Appeals, supra) and even
assuming the existence of the remedy of appeal, the Court harkens to the
rule that in the broader interests of justice, a petition for certiorari may be
entertained, particularly where appeal would not afford speedy and
adequate relief. (Maninang Court of Appeals, supra).
PREMISES CONSIDERED, the petition is hereby DENIED for lack of merit
and the questioned decision of respondent Court of Appeals promulgated on
August 30, 1985 and its Resolution dated October 23, 1985 are hereby
AFFIRMED.
SO ORDERED.

G.R. No. L-53546 June 25, 1992

SPECPRO| RULE 76| 7

THE HEIRS OF THE LATE JESUS FRAN and CARMEN MEJIA

RODRIGUEZ, petitioners,
vs.
HON. BERNARDO LL. SALAS, CONCEPCION MEJIA ESPINA and
MARIA MEJIA GANDIONGCO, respondents.

DAVIDE, JR., J.:

This is a petition for certiorari and prohibition under Rule 65 of the Revised
Rules of Court, with prayer for a writ of preliminary injunction, to annul and
set aside, for having been issued without jurisdiction or with grave abuse of
discretion amounting to lack of jurisdiction, the following Orders of the
respondent Judge in Special Proceedings No. 3309-R of Branch VIII of the
then Court of First Instance (now Regional Trial Court) of Cebu entitled "In
The Matter of the Petition for Probate of the Last Will and Testament of
Remedios Mejia Vda. de Tiosejo:"
1. The Order of 26 February 1980 setting for hearing private respondents'
Omnibus Motion for Reconsideration 1 which was filed six (6) years, ten
(10) months and eighteen (18) days after the probate judgment was
rendered and six (6) years and twenty-one (21) days after the testate
proceedings was declared closed and terminated; and
2. The Order of 2 June 1980 finding the signature of the testatrix in the last
will and testament to be a forgery and (a) declaring the testatrix as having
died intestate; (b) declaring the testamentary dispositions in said last will
and testament as null and void; (c) setting aside the order dated 10
September 1973 declaring the testate proceedings closed and terminated;
(d) revoking the appointment of Jesus Fran as executor while appointing
respondent Concepcion M. Espina as administratrix; and (e) ordering the
conversion of the proceedings to one of intestacy. 2 This Order effectively
annulled and set aside the probate judgment of 13 November 1972.
Petitioners would also have this Court nullify all other actions of respondent
Judge in said Sp. Proc. No. 3309-R; restore the status quo therein prior to
the issuance of the foregoing orders; and permanently enjoin respondent
Judge from reopening said proceedings.
The following facts are not controverted:

Remedios M. Vda. de Tiosejo, a widow, died on 10 July 1972 in Cebu City

with neither descendants nor ascendants; she left real and personal
properties located in Cebu City, Ormoc City and Puerto Bello, Merida, Leyte.
Earlier, on 23 April 1972, she executed a last will and testament 3 wherein
she bequeathed to her collateral relatives (brothers, sisters, nephews and
nieces) all her properties, and designated Rosario Tan or, upon the latter's
death, Jesus Fran, as executor to serve without bond. Instrumental
witnesses to the will were Nazario Pacquiao, Alcio Demerre and Primo Miro.
On 15 July 1972, Jesus Fran filed a petition with the Court of First instance
of Cebu for the probate of Remedios' last will and testament. 4 The case
was raffled to the original Branch VIII thereof which was then presided over
by Judge Antonio D. Cinco. The petition alleged that Rosario Tan is not
physically well and, therefore, will not be assuming the position of
administratrix. Tan signed a waiver in favor of Jesus Fran on the third page
of the said petition. The probate court issued an order setting the petition
for hearing on 18 September 1972. Meanwhile, on 31 July 1972, the court
appointed petitioner Jesus Fran as special administrator.
On 10 August 1972, the private respondents, who are sisters of the
deceased, filed a manifestation 5 alleging that they needed time to study
the petition because some heirs who are entitled to receive their respective
shares have been intentionally omitted therein, and praying that they be
given ample time to file their opposition, after which the hearing be reset to
another date.
Private respondents did not file any opposition. Instead, they filed on 18
September 1972 a "Withdrawal of Opposition to the Allowance of Probate
(sic) of the Will" wherein they expressly manifested, with their "full
knowledge and consent that . . . they have no objection of (sic) the
allowance of the . . . will of the late Remedios Mejia Vda. de Tiosejo," and
that they have "no objection to the issuance of letters testamentary in favor
of petitioner, Dr. Jesus Fran." 6
No other party filed an opposition. The petition thus became uncontested.
During the initial hearing, petitioner Fran introduced the requisite evidence
to establish the jurisdictional facts.
Upon a determination that the court had duly acquired jurisdiction over the
uncontested petition for probate, Judge Cinco issued in open court an order
directing counsel for petitioner to present evidence proving the authenticity

SPECPRO| RULE 76| 8

and due execution of the will before the Clerk of Court who was,
accordingly, so authorized to receive the same.
The reception of evidence by the Clerk of Court immediately followed.
Petitioner Fran's first witness was Atty. Nazario R. Pacquiao, one at the
subscribing witnesses to the will. The original of the will, marked as Exhibit
"F", and its English translation, marked as Exhibit "F-Translation", were
submitted to the Clerk of Court. 7 Petitioner Fran was the second and also
the last witness. He enumerated the names of the surviving heirs of the
deceased.
On 13 November 1972, the probate court rendered a decision admitting to
probate the will of the testatrix, Remedios Mejia Vda. de Tiosejo, and
appointing petitioner Fran as executor thereof. 8 The dispositive portion of
the decision reads:

After the hearing on the Project of Partition, the court issued its Order of 10
September 1973 13 approving the same, declaring the parties therein as the
only heirs entitled to the estate of Remedios Mejia Vda. de Tiosejo,
directing the administrator to deliver to the said parties their respective
shares and decreeing the proceedings closed. The dispositive portion
thereof reads:
WHEREFORE, the signers (sic) to the project of partition are declared the
only, heirs entitled to the estate; the project of partition submitted is
ordered approved and the administrator is ordered to deliver to each one of
them their respective aliquot parts as distributed in the said project of
partition. It is understood that if there are expenses incurred or to be
incurred as expenses of partition, Section 3 of Rule 90 shall be followed.
Let this proceedings be now declared closed.

WHEREFORE, in view of all the foregoing, judgment is hereby rendered

declaring the last will and testament of the deceased Remedios Mejia Vda.
de Tiosejo marked as Exhibit F as admitted to probate. Dr. Jesus Fran is
hereby appointed as executor of the will. Let letters testamentary be issued
in favor of Dr. Jesus Fran. The special administrator's bond put up by Dr.
Jesus Fran as special administrator duly approved by this Court shall serve
and be considered as the executor's bond considering that the special
administrator and executor are one and the same person.

SO ORDERED.

The requisite notice to creditors was issued, but despite the expiration of
the period therein fixed, no claim was presented against the estate.

On 1 October 1979, private respondents filed with the new Branch VIII an
Omnibus Motion for Reconsideration of the probate judgment of 13
November 1972 and the Order of partition of 10 September 1973, in said
motion, they ask the court to declare the proceedings still open and admit
their opposition to the allowance of the will, 14 which they filed on 1 October
1979. They allege that: (a) they were not furnished with a copy of the will;
(b) the will is a forgery; (c) they were not notified of any resolution or order
on their manifestation requesting time within which to file their opposition,
or of the order authorizing the clerk of court to receive the evidence for the
petitioner, or of the order closing the proceedings; (d) the reception of
evidence by the clerk of court was void per the ruling in Lim Tanhu vs.
Ramolete; 15 (e) the project of partition contains no notice of hearing and
they were not notified thereof; (f) the petitioner signed the project of
partition as administrator and not as executor, thereby proving that the
decedent died intestate; (g) the petitioner did not submit any accounting as
required by law; and (h) the petitioner never distributed the estate to the
devisees and legatees.

On 4 January 1973, petitioner Fran filed an Inventory of the Estate;

thereof were furnished each of the private respondents.

copies

Subsequently, a Project of Partition based on the dispositions made in the

will and signed by all the devisees and legatees, with the exception of Luis
Fran, Remedios C. Mejia and respondent Concepcion M. Espina, was
submitted by the executor for the court's approval. 10 Said legatees and
devisees submitted certifications wherein they admit receipt of a copy of
the Project of Partition together with the notice of hearing, and state that
they had no objection to its approval. 11
The notice of hearing referred to in these certifications is the 6 August 1973
notice issued by the Clerk of Court setting the hearing on the Project of
Partition for 29 August 1973. 12

Thereafter, the aforesaid Branch VIII of the Court of First Instance of Cebu
was converted to a Juvenile and Domestic Relations Court. On November
1978, by virtue of Presidential Decree No. 1439, Branch XVII (Davao City)
of the Court of First Instance of Cebu, presided over by herein respondent
Judge, was officially transferred to Cebu City and renumbered as Branch
VIII.

SPECPRO| RULE 76| 9

In a detailed opposition 16 to the above Omnibus Motion for

Reconsideration, petitioner Fran refuted all the protestations of private
respondents. Among other reasons, he stresses therein that: (a) private
respondents are in estoppel to question the will because they filed their
Withdrawal Of Opposition To The Allowance of Will which states that after
thoroughly studying the petition, to which was attached a copy of the
English translation of the will, they have no objection to its allowance; the
order directing the clerk of court to receive the evidence was dictated in
open court in the presence of private respondents; private respondent
Maria M. Gandiongco signed the Project of Partition and private respondent
Concepcion M. Espina submitted a certification stating therein that she
received the notice of hearing therefor and has no objection to its approval;
(b) except for some properties, either covered by a usufruct under the will
or agreed upon by the parties to be held in common by reason of its special
circumstance, there was an actual distribution of the estate in accordance
with the Project of Partition; insofar as private respondents are concerned,
they not only received their respective shares, they even purchased the
shares of the other devisees. To top it all, private respondents' children,
namely Rodrigo M. Gandiongco, Jr. and Victor Espina, mortgaged their
respective shares in favor of a bank
Notwithstanding petitioners' objections, respondent Judge issued on 26
February 1980 an Order setting for hearing the said Omnibus Motion for
Reconsideration on 8 April 1980 so that "the witnesses and the exhibits
(may be) properly ventilated." 17
On 25 March 1980, petitioners filed a Motion to Dismiss the Omnibus and to
Reconsider the 26 February 1980 Order setting it for hearing on 17 April
1980, 18 but the respondent Judge prematurely denied it for lack of merit in
his Order of 31 March 1980. 19
Consequently, on 8 April 1980, the instant petition was filed challenging the
jurisdiction of the lower court in taking cognizance of the Omnibus Motion
for Reconsideration considering that the probate judgment and the order
approving the Project of Partition and terminating the proceedings had long
become final and had in fact been executed. Private respondents had long
lost their right to appeal therefrom. The Omnibus Motion for
Reconsideration cannot likewise be treated as a petition for relief from
judgment for under Rule 38 of the Revised Rules of Court, the same must
be filed within sixty (60) days from receipt of notice of the judgment/order
and within six (6) months from the date of said judgment. Therefore, this
remedy can no longer be availed of.

On 8 April 1980, the date the instant petition was filed, respondent Judge
proceeded with the hearing of the Omnibus Motion for Reconsideration. He
received the testimonies of private respondents and one Romeo O. Varena,
an alleged handwriting expert from the Philippine Constabulary, who
averred that the signature of the testatrix on the will is a forgery. The
respondent Judge likewise issued an Order on the same date stating that
unless he received a restraining order from this Court within twenty (20)
days therefrom, he will reopen Sp. Proc. No. 3309-R.
On 14 April 1980, petitioners filed a Supplemental Petition asking this Court
to restrain respondent Judge from reopening the case. 20
In their voluminous Comments and Opposition to the petition and
Supplemental Petition, 21 private respondents not only amplify in great
detail the grounds raised in their Omnibus Motion for Reconsideration, they
also squarely raise for the first time the following issues.
(a) The probate court never acquired jurisdiction over the case since
petitioner Jesus Fran failed to submit to the court the original of the will.
(b) They were deprived of the opportunity to examine the will as petitioner
Jesus Fran did not attach it to the petition; what was attached was only the
English translation of the will.
(c) Even assuming that the probate judge could validly delegate the
reception of evidence to the Clerk of Court, the proceeding before the latter
would still be void as he failed to take an oath of office before entering
upon his duties as commissioner and failed to render a report on the
matters submitted to him.
(d) Respondent Maria M. Vda. de Gandiongco was defrauded into (sic)
signing the Project of Partition and respondent Concepcion M. Espina, her
certification, when they were misled by petitioner Fran into believing that
the Agreement of Petition to be submitted to the court is the Extra Judicial
Partition they signed on 7 May 1973.
(e) Petitioner Fran is guilty of fraud in urdervaluing the estate of the late
Remedios M. Vda. de Tiosejo by reporting properties worth only
P400,000.00 when in truth and in fact the estate has an aggregate value of
P2,094,333.00.
In the Resolution dated 2 June 1980, We issued a restraining order
enjoining respondent Judge from reopening Sp. Proc. No. 3309-R. 22

SPECPRO| RULE 76| 10

However, on the same date, before the restraining order was served on
him; respondent Judge issued the impugned order declaring the
testamentary dispositions of the will void, finding the signature of the late
Remedios M. Vda. de Tiosejo to be a forgery, decreeing the reopening of
Sp. Proc. No. 3309-R and converting the same into an intestate
proceeding. 23

her participation in the Omnibus Motion for Reconsideration and her

Opposition to this petition.

Hence, on 6 June 1980, petitioners filed their Second Supplemental

Petition 24 asking this Court to declare as null and void the Order of 2 June
1980 and, pending such declaration, to restrain respondent Judge from
enforcing the same. Private respondents filed their Comment and
Opposition to the Second Supplemental Petition on 9 July 1980.

On
17
August
1985,
private
respondents
filed
a
joint
manifestation 29 wherein they claim that Maria M. Vda. de Gandiongco does
not remember, executing the affidavit. A few weeks before the affidavit was
filed, particularly on 17 June 1985, Maria M. Vda. de Gandiongco was
confined in the hospital; she could not recall having signed, during this
period, any affidavit or recognized her sisters and other relatives.

Thereafter, as mandated in the resolution of 30 June 1980, 25 this Court

gave due course to this case and required the parties to file their respective
Memoranda, which private respondents complied with on 16 August
1980; 26petitioners filed theirs on 27 August 1980. 27 Consequently, the
parties continued to file several pleadings reiterating substantially the same
allegations and arguments earlier submitted to this Court.
On 22 March 1984, counsel for petitioners filed a manifestation informing
this Court of the death of petitioner Fran on 29 February 1984 and
enumerating therein his surviving heirs. On 2 April 1984, this Court
resolved to have said heirs substitute him in this case.
Over a year later, respondent Maria M. Vda. de Gandiongco filed an
affidavit, 28 sworn to before the acting Clerk of Court of the Regional Trial
Court in Cebu City, disclosing the following material facts: (a) she signed
the Omnibus Motion for Reconsideration dated 1 October 1979 without
knowing or reading the contents thereof; (b) she saw the will of the late
Remedios M. Vda. de Tiosejo written in the Cebuano dialect after the same
was executed by the latter; the said will bearing the authentic signature of
Remedios was the very one presented to the probate court by petitioner's
counsel; (c) she received the notice of hearing of the petition for probate
and because she was convinced that the signature of the testatrix was
genuine, she, together with Concepcion M. Espina, withdrew her opposition;
(d) she received her share of the estate of the late Remedios M. Vda. de
Tiosejo which was distributed in accordance with the provisions of the
latter's will; and (e) she did not authorize Atty. Numeriano Estenzo or other
lawyers to present a motion to this Court after 25 February 1981 when
Estenzo withdrew as counsel for private respondents. She then asks this
Court to consider as withdrawn her Opposition to the Allowance of the Will,

Due to this development, We required private respondent Concepcion M.

Espina to comment on the affidavit of private respondent Maria M. Vda. de
Gandiongco.

On 19 September 1985, respondent Maria M. Vda. de Gandiongco, through

special counsel, filed a Manifestation/Motion with a second Affidavit
attached thereto 30 confessing that she signed the Joint Manifestation dated
16 August 1985 "without knowing or being informed of its contents, and
only upon Mrs. Concepcion Espina's request." She reiterated her desire to
withdraw from the Omnibus Motion for Reconsideration filed in Sp. Proc. No,
3309-R as well as from the instant petition.
Despite the valiant attempt of private respondent Concepcion M. Espina to
influence and control the action of Maria Gandiongco, there is nothing in the
records that would cast any doubt on the irrevocability of the latter's
decision to withdraw her participation in the Omnibus Motion for
Reconsideration and Opposition to this case. That decision, however, is not
a ground for dropping her as a private respondent as the respondent Judge
had already issued the abovementioned Order of 2 June 1980.
The petition and the supplemental petitions are impressed with merit.
We do not hesitate to rule that the respondent Judge committed grave
abuse of discretion amounting to lack of jurisdiction when he granted the
Omnibus Motion for Reconsideration and thereafter set aside the probate
judgment of 13 November 1972 in Sp. Proc. No. 3309-R, declared the
subject will of the testatrix a forgery, nullified the testamentary dispositions
therein and ordered the conversion of the testate proceedings into one of
intestacy.
It is not disputed that private respondents filed on the day of the initial
hearing of the petition their "Withdrawal of Opposition To Allowance of
Probate (sic) Will" wherein they unequivocally state that they have no

SPECPRO| RULE 76| 11

objection to the allowance of the will. For all legal intents and purposes,
they became proponents of the same.
After the probate court rendered its decision on 13 November 1972, and
there having been no claim presented despite publication of notice to
creditors, petitioner Fran submitted a Project of Partition which private
respondent Maria M. Vda. de Gandiongco voluntarily signed and to which
private respondent Espina expressed her conformity through a certification
filed with the probate court. Assuming for the sake of argument that private
respondents did not receive a formal notice of the decision as they claim in
their Omnibus Motion for Reconsideration, these acts nevertheless
constitute indubitable proof of their prior actual knowledge of the same. A
formal notice would have been an idle ceremony. In testate proceedings, a
decision logically precedes the project of partition, which is normally an
implementation of the will and is among the last operative acts to terminate
the proceedings. If private respondents did not have actual knowledge of
the decision, they should have desisted from performing the above acts and
instead demanded from petitioner Fran the fulfillment of his alleged promise
to show them the will. The same conclusion refutes and defeats the plea
that they were not notified of the order authorizing the Clerk of Court to
receive the evidence and that the Clerk of Court did not notify them of the
date of the reception of evidence. Besides, such plea must fail because
private respondents were present when the court dictated the said order.
Neither do We give any weight to the contention that the reception of
evidence by the Clerk of Court is null and void per the doctrine laid, down
in Lim Tanhu vs. Ramolete. 31 In the first place, Lim Tanhu was decided on
29 August 1975, nearly four (4) years after the probate court authorized
the Clerk of Court to receive the evidence for the petitioner in this case. A
month prior to Lim Tanhu, or on 30 July 1975, this Court, in Laluan vs.
Malpaya, 32 recognized and upheld the practice of delegating the reception
of evidence to Clerks of Court. Thus:
No provision of law or principle of public policy prohibits a court from
authorizing its clerk of court to receive the evidence of a party litigant. After
all, the reception of evidence by the clerk of court constitutes but a
ministerial task the taking down of the testimony of the witnesses and
the marking of the pieces of documentary evidence, if any, adduced by the
party present. This task of receiving evidence precludes, on the part of the
clerk of court the exercise of judicial discretion usually called for when the
other party who is present objects to questions propounded and to the
admission of the documentary evidence proffered. 33 More importantly, the

duty to render judgment on the merits of the case still rests with the judge
who is obliged to personally and directly prepare the decision based upon
the evidence reported. 34
But where the proceedings before the clerk of court and the concomitant
result thereof, i.e., the judgment rendered by the court based on the
evidence presented in such limited proceedings, prejudice the substantial
rights of the aggrieved party, then there exists, sufficient justification to
grant the latter complete opportunity to thresh out his case in court. 35
Monserrate vs. Court of Appeals, 36 decided on 29 September 1989,
reiterated this rule. Lim Tanhu then cannot be used as authority to nullify
the order of the probate court authorizing the Clerk of Court to receive the
evidence for the rule is settled that "when a doctrine of this Court is
overruled and a different view is adopted, the new doctrine should be
applied prospectively, and should not apply to parties who had relied on the
old doctrine and acted on the faith thereof." 37 It may also be emphasized in
this connection that Lim Tanhu did not live long; it was subsequently
overruled in Gochangco vs. Court of First Instance of Negros
Occidental, 38 wherein this Court, en banc, through Justice, now Chief
Justice, Andres R. Narvasa, in reference to what the trial court termed as
"the doctrinal rule laid down in the recent case of Lim Tan Hu (sic) vs.
Ramolete," ruled:
Now, that declaration does not reflect long observed and established judicial
practice with respect to default cases. It is not quite consistent, too, with
the several explicitly authorized instances under the Rules where the
function of receiving evidence and even of making recommendatory
findings of facts on the basis thereof may be delegated to commissioners,
inclusive of the Clerk of Court. These instances are set out in Rule 33, . . . ;
Rule 67 and 69, . . . ; Rule 86, . . . ; Rule 136, . . . . In all these instances,
the competence of the clerk of court is assumed. Indeed, there would
seem, to be sure, nothing intrinsically wrong in allowing presentation of
evidence ex parte before a Clerk of Court. Such a procedure certainly does
not foreclose relief to the party adversely affected who, for valid cause and
upon appropriate and seasonable application, may bring about the undoing
thereof or the elimination of prejudice thereby caused to him; and it is,
after all, the Court itself which is duty bound and has the ultimate
responsibility to pass upon the evidence received in this manner, discarding
in the process such proofs as are incompetent and then declare what facts
have thereby been established. In considering and analyzing the evidence
preparatory to rendition of judgment on the merits, it may not

SPECPRO| RULE 76| 12

unreasonably be assumed that any serious error in the exparte presentation of evidence, prejudicial to any absent party, will be
detected and duly remedied by the Court, and/or may always, in any event,
be drawn to its attention by any interested party.
xxx xxx xxx
It was therefore error for the Court a quo to have declared the judgment by
default to be fatally flawed by the fact that the plaintiff's evidence had been
received not by the Judge himself but by the clerk of court.
The alternative claim that the proceedings before the Clerk of Court were
likewise void because said official did not take an oath is likewise untenable.
The Clerk of Court acted as such when he performed the delegated task of
receiving evidence. It was not necessary for him to take an oath for that
purpose; he was bound by his oath of office as a Clerk of Court. Private
respondents are obviously of the impression that by the delegation of the
reception of evidence to the Clerk of Court, the latter became
a commissioner as defined under Rule 33 of the Rules of Court entitled Trial
by Commissioner. This is not correct; as this Court said in Laluan:
The provisions of Rule 33 of the Rules of Court invoked by both parties
properly relate to the reference by a court of any or all of the issues in a
case to a person so commissioned to act or report thereon. These
provisions explicitly spell out the rules governing the conduct of the court,
the commissioner, and the parties before, during, and after the reference
proceedings. Compliance with these rules of conduct becomes imperative
only when the court formally orders a reference of the case to a
commissioner. Strictly speaking then, the provisions of Rule 33 find no
application to the case at bar where the court a quo merely directed the
clerk of court to take down the testimony of the witnesses presented and to
mark the documentary evidence proferred on a date previously set for
hearing.
Belatedly realizing the absence of substance of the above grounds, private
respondents now claim in their Comments to the Petition and the
Supplemental Petition that the trial court never acquired jurisdiction over
the petition because only the English translation of the will and not a
copy of the same was attached to the petition; the will was not even
submitted to the court for their examination within twenty (20) days after
the death of the testatrix; and that there was fraud in the procurement of
the probate judgment principally because they were not given any chance

to examine the signature of the testatrix and were misled into signing the
withdrawal of their opposition on the assurance of petitioner Fran and their
sister, Rosario M. Tan, that the will would be shown to them during the trial.
These two grounds easily serve as the bases for the postulation that the
decision is null and void and so, therefore, their omnibus motion became all
the more timely and proper.
The contentions do not impress this Court.
In Santos vs. Castillo 39 and Salazar vs. Court of First Instance of
Laguna, 40 decided six (6) months apart in 1937, this Court already ruled
that it is not necessary that the original of the will be attached to the
petition. In the first, it ruled: "The original of said document [the will] must
be presented or sufficient reasons given to justify the nonpresentation of
said original and the acceptance of the copy or duplicate thereof." 41 In the
second case, this Court was more emphatic in holding that:
The law is silent as to the specific manner of bringing the jurisdictional
allegations before the court, but practice and jurisprudence have
established that they should be made in the form of an application and filed
with the original of the will attached thereto. It has been the practice in
some courts to permit attachment of a mere copy of the will to the
application, without prejudice to producing the original thereof at the
hearing or when the court so requires. This precaution has been adopted by
some attorneys to forestall its disappearance, which has taken place in
certain cases. 42
That the annexing of the original will to the petition is not a jurisdictional
requirement is clearly evident in Section 1, Rule 76 of the Rules of Court
which allows the filing of a petition for probate by the person named therein
regardless of whether or not he is in possession of the will, or the same is
lost or destroyed. The section reads in full as follows:
Sec. 1. Who may petition for the allowance of will. Any executor, devisee,
or legatee named in a will, or any other person interested in the estate,
may, at any time after the death of the testator, petition the court having
jurisdiction to have the will allowed, whether the same be in his possession
or not, or is lost or destroyed.
In the instant case, a copy of the original will and its English translation
were attached to the petition as Annex "A" and Annex "A-1", respectively,
and made integral parts of the same. It is to be presumed that upon the

SPECPRO| RULE 76| 13

filing of the petition the Clerk of Court, or his duly authorized subordinate,
examined the petition and found that the annexes mentioned were in fact
attached thereto. If they were not, the petition cannot be said to have been
properly presented and the Clerk of Court would not have accepted it for
docketing. Under Section 6, Rule 136 of the Rules of Court, the Clerk of
Court shall receive and file all pleadings and other papers properly
presented, endorsing on each such paper the time when it was filed. The
presumption of regularity in the performance of official duty militates
against private respondents' claim that Annex "A" of the petition was not in
fact attached thereto.
The certification of the Assistant Clerk of Court issued on 8 April
1980, 43 or SIX (6) months after the filing of the motion for reconsideration,
to the effect that as per examination of the records of Sp. Proc. No. 3309R, "the copy of the Will mentioned in the petition as Annex "A" is not found
to be attached as of this date in the said petition; only the English
Translation of said Will is attached thereof (sic) as Annex "A-1" does not
even save the day for private respondents. It is not conclusive because it
fails to state the fact that as hereafter shown, the pages of the records
which correspond to the four (4) pages of Annex "A" were missing or were
detached therefrom. As emphatically asserted by the petitioners in their
Reply to the Comments of private respondents, 44 duly supported by a
certification of the former Clerk of Court of the original Branch VIII of the
court below, 45 and which private respondents merely generally denied in
their motion for reconsideration with comments and opposition to
consolidated reply, 46 the four-page xerox copy of will, marked as Annex "A"
of the petition, became, as properly marked by the personnel of the original
Branch VIII of the court below upon the filing of the petition, pages 5, 6, 7
and 8 while the translation thereof, marked as Annex "A-1", became pages
9, 10, 11 and 12 of the records. The markings were done in long hand. The
records of the case were thereafter sent to the Clerk of Court, 14th Judicial
District, Cebu City on 9 February 1978. These records, now in the
possession of the respondent Judge, show that said pages 5, 6, 7 and 8 in
long are missing. As a consequence thereof, petitioners filed with the
Executive Judge of the court below an administrative complaint.
It is not likewise disputed that the original of the will was submitted in
evidence and marked as Exhibit "F". It forms part of the records of the
special proceedings a fact which private respondents admit in their
Omnibus Motion for Reconsideration, thus:

9. That an examination of the alleged will of our deceased sister has

revealed that the signatures at the left hand margin of Exhibit "F", are
written by (sic) different person than the signature appearing at the bottom
of said alleged will . . . 47
The availability of the will since 18 September 1972 for their examination
renders completely baseless the private respondents' claim of fraud on
petitioner Fran's part in securing the withdrawal of their opposition to the
probate of the will. If indeed such withdrawal was conditioned upon Fran's
promise that the private respondents would be shown the will during the
trial, why weren't the appropriate steps taken by the latter to confront Fran
about this promise before certifications of conformity to the project of
partition were filed?
Granting for the sake of argument that the non-fulfillment of said promise
constitutes fraud, such fraud is not of the kind which provides sufficient
justification for a motion for reconsideration or a petition for relief from
judgment under Rule 37 and Rule 38, respectively, of the Rules of Court, or
even a separate action for annulment of judgment. It is settled that for
fraud to be invested with, sufficiency, it must be extrinsic or collateral to the
matters involved in the issues raised during the trial which resulted in such
judgment. 48
In Our jurisdiction, the following courses of action are open to an aggrieved
party to set aside or attack the validity of a final judgment:
(1) Petition for relief under Rule 38 of the Rules of Court which must be
filed within sixty (60) days after learning of the decision, but not more than
six (6) months after such decision is entered;
(2) By direct action, via a special civil action for certiorari, or by collateral
attack, assuming that the decision is void for want of jurisdiction;
(3) By an independent civil action under Article 1114 of the Civil Code,
assuming that the decision was obtained through fraud and Rule 38 can not
be applied. 49
It is not difficult to see that private respondents had lost their right to file a
petition for relief from judgment, it appearing that their omnibus motion for
reconsideration was filed exactly six (6) years, ten (10) months and twentytwo (22) days after the rendition of the decision, and six (6) years, one (1)
month and thirteen (13) days after the court issued the order approving the

SPECPRO| RULE 76| 14

Project of Partition, to which they voluntarily expressed their conformity

through their respective certifications, and closing the testate proceedings.
Private respondents did not avail of the other two (2) modes of attack.
The probate judgment of 13 November 1972, long final and undisturbed by
any attempt to unsettle it, had inevitably passed beyond the reach of the
court below to annul or set the same aside, by mere motion, on the ground
that the will is a forgery. Settled is the rule that the decree of probate is
conclusive with respect to the due execution of the will and it cannot be
impugned on any of the grounds authorized by law, except that of fraud, in
any separate or independent action or proceeding. 50We wish also to advert
to the related doctrine which holds that final judgments are entitled to
respect and should not be disturbed; otherwise, there would be a wavering
of trust in the courts. 51 In Lee Bun Ting vs. Aligaen, 52 this Court had the
occasion to state the rationale of this doctrine, thus:
Reasons of public policy, judicial orderliness, economy and judicial time and
the interests of litigants, as well as the peace and order of society, all
require that stability be accorded the solemn and final judgments of the
courts or tribunals of competent jurisdiction.
This is so even if the decision is incorrect
penalty imposed is erroneous. 54

53

possession of the share to be delivered, the probate court would have

jurisdiction within the same estate proceeding to order him to transfer that
possession to the person entitled thereto. This is authorized under Section
1, Rule 90 of the Rules of Court. However, if no motion for execution is filed
within the reglementary period, a separate action for the recovery of the
shares would be in order. As We see it, the attack of 10 September 1973 on
the Order was just a clever ploy to give asemblance of strength and
substance to the Omnibus Motion for Reconsideration by depicting therein a
probate court committing a series of fatal, substantive and procedural
blunders, which We find to be imaginary, if not deliberately fabricated.
WHEREFORE, the instant petition and supplemental petitions are GRANTED.
The Order of respondent Judge of 2 June 1980 and all other orders issued
by him in Sp. Proc. No. 3309-R, as well as all other proceedings had therein
in connection with or in relation to the Omnibus Motion for Reconsideration,
are hereby ANNULLED and SET ASIDE.
The restraining order issued on 2 June 1980 is hereby made PERMANENT.
Costs against private respondent Concepcion M. Espina.
SO ORDERED.

or, in criminal cases, the

Equally baseless and unmeritorious is private respondents' contention that

the order approving the Project of Partition and closing the proceedings is
null and void because the Project of Partition did not contain a notice of
hearing and that they were not notified of the hearing thereon. In truth, in
her own certification 55 dated 5 September 1973, private respondent
Concepcion M. Espina admitted that she "received a copy of the Project of
Partition and the Notice of Hearing in the above-entitled proceeding, and
that she has no objection to the approval of the said Project of Partition."
The notice of hearing she referred to is the Notice of Hearing For Approval
of Project of Partition issued on 6 August 1973 by the Clerk of
Court. 56 Private respondent Espina was lying through her teeth when she
claimed otherwise.
The non-distribution of the estate, which is vigorously denied by the
petitioners, is not a ground for the re-opening of the testate proceedings. A
seasonable motion for execution should have been filed. In De Jesus vs.
Daza, 57 this Court ruled that if the executor or administrator has

G.R. No. 78590 June 20, 1988

SPECPRO| RULE 76| 15

PEDRO
DE
GUZMAN, petitioner,
vs.
THE HONORABLE JUDGE ZOSIMO Z. ANGELES, RTC BRANCH 58,
MAKATI, METRO, MANILA; DEPUTY SHERIFFS JOSE B. FLORA and
HONORIO SANTOS and ELAINE G. DE GUZMAN, respondents.
Bautista, Picazo, Cruz, Buyco and Tan for private respondent.
Ponce Enrile, Cayetano, Bautista, Picaso and Reyes, collaborating counsel
for private respondent.

GUTIERREZ, JR., J.:

May a probate court act on and/or grant motions for the appointment of a
special administrator, for the issuance of a writ of possession of alleged
properties of the deceased person, and for assistance to preserve the estate
in a petition for the settlement of the intestate estate even before the court
has caused notice to be served upon all interested parties pursuant to
section 3, Rule 79 of the Revised Rules of Court?
On May 5, 1987, private respondent Elaine G. de Guzman filed a petition for
the settlement of the intestate estate of Manolito de Guzman, before the
Regional Trial Court of Makati, Metro Manila. The case was docketed as
Special Proceedings .No. M-1436.
The petition alleges that: (1) on March 22,1987, Manolito de Guzman died
in Makati, Metro Manila; (2) at the time of his death, the decedent was a
resident of Makati, Metro Manila; (3) decedent left personal and real
properties as part of his estate, listed in Annexes "A," "B," "C" and "D;" (4)
the properties were acquired after the marriage of the petitioner to the
decedent and therefore are included in their conjugal partnership; (5) the
estate of -the decedent has a probable net value which may be
provisionally assessed at P4,000,000.00 more or less; (6) the possible
creditors of the estate, who have accounts payable. and existing claims
against the firm C. SANTOS Construction are listed in Annex "E;" (7) the
compulsory heirs of the decedent are the as the surviving spouse and their
two (2) minor children namely: Charmane Rose de Guzman 11 years and
Peter Brian de Guzman, 9 years old; (8) after diligent search and inquiry to
ascertain whether the decedent left a last will and testament, none has
been found and according to the best knowledge information and belief of
the petitioner, Manolito de Guzman died intestate; and (9) the petitioner as

the survey surviving spouse of the decedent, is most qualified and entitled
to the grant of letters of administration.
On May 22, 1987, the private respondent filed a motion for writ of
possession over five (5) vehicles registered under the name of Manolito
de Guzman, alleged to be conjugal properties of the de Guzman's but which
are at present in the possession of the private respondent's father-in- law,
herein petitioner Pedro de Guzman. The motion stated that as co-owner
and heir, the private respondent must have the possession of said vehicles
in order to preserve the assets of her late husband. On the same day, the
lower court issued an order setting for hearing the motion on May 27, 1987
directing the deputy sheriff to notify petitioner Pedro de Guzman at the
expense of the private respondent.
The scheduled May 27, 1987 hearing was postponed on motion of
petitioner's counsel, Atty. Ricardo Fojas. The petitioner was also given three
(3) days from May 27, 1987 to give his comment on the motion for a writ of
possession. The hearing was reset to June 5, 1987 at 3:00 p.m.
On May 29, 1987, the petitioner's counsel filed a notice of appearance and
an "Urgent Motion For Extension of Time to File an Opposition and for
Resetting of the Hearing."
The motion was granted and the petitioner was given five (5) days from
receipt of the order within which to file his opposition to the motion for a
writ of possession. The hearing was reset to June 15, 1987 at 2:00 in the
afternoon.
In the meantime, on May 28, 1987, the private respondent filed her "ExParte Motion to Appoint Petitioner as Special Administratrix of the Estate of
Manolito de Guzman."
In an order dated May 28,1987, the aforesaid motion was set for hearing
on June 5, 1987. In this same order, the lower court directed that all parties
in the case be notified. However, no notice of the order was given to the
petitioner.
In an order dated June 5, 1987, the lower court granted the private
respondent's motion to be appointed as special administratrix, to wit:
Finding the motion for appointment of special administratrix, on the ground
alleged therein to be well-founded, and finding further that it is to be the
best interest of the Estate of Manolito de Guzman that petitioner-movant

SPECPRO| RULE 76| 16

Elaine G. de Guzman, be appointed as Special Administratrix in this case,

said motion is granted.

Thereafter, the instant petition was filed to annul the lower court's orders
dated June 5, 1987 and June 8, 1987.

WHEREFORE, Elaine G. de Guzman, petitioner-movant, is hereby appointed

as Special Administratrix of the Estate of the deceased Manolito de
Guzman, pending appointment of a regular administrator. The bond for the
said special administratrix is hereby fixed in the amount of P200,000.00.
(Rollo, p. 40)

In a resolution dated June 10, 1987, we issued a temporary restraining

order enjoining the respondent court from enforcing the two questioned
orders. In another resolution dated October 28, 1987, we gave due course
to the petition.

On June 8, 1987, the lower court issued another order, to wit:

Acting on the Urgent Ex-Parte Motion for Assistance" filed by PetitionerSpecial Administratrix Elaine de Guzman for appointment of Deputy Sheriffs
Honorio Santos and Jose B. Flora together with some military men and/or
policemen to assist her in preserving the estate of Manolito de Guzman, the
motion is granted and the Deputy Sheriffs Honorio Santos and Jose B. Flora
are hereby appointed for that purpose, provided that the subject matter of
the motion for writ of possession pending before this Court shall not be
affected. (Rollo, p. 41)
Trouble ensued when the respondents tried to enforce the above order. The
petitioner resisted when Deputy Sheriffs Jose B. Flora and Honorio Santos
tried to take the subject vehicles on the ground that they were his personal
properties. According to the petitioner, this resulted in a "near shoot-out
between members of the Makati Police, who were to maintain peace and
order, and the CAPCOM soldiers who were ostensibly aiding respondent
sheriffs and Elaine G. de Guzman" and that "the timely arrival of Mayor
Jejomar Binay of Makati defused the very volatile situation which resulted in
an agreement between the parties that the bulldozer, sought to be taken,
be temporarily placed in the custody of Mayor Binay, while the parties seek
clarification of the order from respondent Judge Zosimo Angeles the next
day, June 9, 1981 at 10:30 a.m."
In the conference held before the respondent court attended by the
counsels for both parties, the June 8, 1987 order was clarified to the effect
that the order "must be merely to take and preserve assets admittedly
belonging to the estate, but not properties, the ownership of which is
claimed by third persons."
The petitioner then filed a manifestation listing properties which he claimed
to be his own.

The petitioner contends that the June 5, 1987 order is a patent nullity, the
respondent court not having acquired jurisdiction to appoint a special
administratrix because the petition for the settlement of the estate of
Manolito de Guzman was not yet set for hearing and published for three
consecutive weeks, as mandated by the Rules of Court. The petitioner also
stresses that the appointment of a special administratrix constitutes an
abuse of discretion for having been made without giving petitioner and
other parties an opportunity to oppose said appointment.
Anent the June 8, 1987 order, the petitioner alleges that the immediate
grant of the motion praying for the court's assistance in the preservation of
the estate of the deceased, "without notice to the petitioner Pedro de
Guzman, and its immediate implementation on the very same day by
respondent Elaine G. de Guzman with the assistance of respondents deputy
sheriffs, at no other place but at the home of the petitioner Pedro de
Guzman, are eloquent proofs that all the antecedent events were intended
solely to deprive petitioner de Guzman of his property without due process
of law." He also prays that the respondent Judge be disqualified from
further continuing the case.
As stated earlier, the pivotal issue in the instant petition hinges on whether
or not a probate court may appoint a special administratrix and issue a writ
of possession of alleged properties of a decedent for the preservation of the
estate in a petition for the settlement of the intestate estate of the said
deceased person even before the probate court causes notice to be served
upon all interested parties pursuant to section 3, Rule 79 of the Revised
Rules of Court.
As early as March 18, 1937, in the case of Santos v. Castillo (64 Phil. 211)
we ruled that before a court may acquire jurisdiction over the case for the
probate of a will and the administration of the properties left by a deceased
person, the application must allege the residence of the deceased and other
indispensable facts or circumstances and that the applicant is the executor

SPECPRO| RULE 76| 17

named in the will or is the person who had custody of the will to be
probated.

court orders affecting other persons, subsequent to the petition void and
subject to annulment. (See Eusebio v. Valmores, supra)

In the instant case, there is no doubt that the respondent court acquired
jurisdiction over the proceedings upon the filing of a petition for the
settlement of an intestate estate by the private respondent since the
petition had alleged all the jurisdictional facts, the residence of the
deceased person, the possible heirs and creditors and the probable value of
the estate of the deceased Manolito de Guzman pursuant to Section 2, Rule
79 of the Revised Rules of Court.

In the instant case, no notice as mandated by section 3, Rule 79 of the

Revised Rules of Court was caused to be given by the probate court before
it acted on the motions of the private respondent to be appointed as special
administratrix, to issue a writ of possession of alleged properties of the
deceased person in the widow's favor, and to grant her motion for
assistance to preserve the estate of Manolito de Guzman.

We must, however, differentiate between the jurisdiction of the probate

court over the proceedings for the administration of an estate and its
jurisdiction over the persons who are interested in the settlement of the
estate of the deceased person. The court may also have jurisdiction over
the "estate" of the deceased person but the determination of the properties
comprising that estate must follow established rules.
Section 3, Rule 79 of the Revised Rules of Court provides:
Court to set time for hearing. Notice thereof. When a petition for
letters of administration is filed in the court having jurisdiction, such court
shall fix a time and place for hearing the petition, and shall cause notice
thereof to be given to the known heirs and creditors of the decedent, and to
any other persons believed to have an interest in the estate, in the manner
provided in sections 3 and 4 of Rule 76.

The "explanation" which we required of the respondent Judge for his

apparent haste in issuing the questioned orders, states:
xxx xxx xxx
10. In issuing the subject Orders, undersigned acted in the honest
conviction that it would be to the best interest of the estate without unduly
prejudicing any interested party or third person. Any delay in issuing the
said Orders might have prejudiced the estate for the properties may be
lost, wasted or dissipated in the meantime. (Rollo, p. 86)
xxx xxx xxx

This explanation while seemingly plausible does not sufficiently explain the
disregard of the Rule. If indeed, the respondent court had the welfare of
both the estate and the person who have interest in the estate, then it
could have caused notice to be given immediately as mandated by the
It is very clear from this provision that the probate court must cause notice Revised Rules of Court. All interested persons including herein petitioner
through publication of the petition after it receives the same. The purpose who is the biggest creditor of the estate listed in the Petition (P850,240.80)
of this notice is to bring all the interested persons within the court's could have participated in the proceedings especially so, because the
jurisdiction so that the judgment therein becomes binding on all the world. respondent immediately filed a motion to have herself appointed as
(Manalo v. Paredes, 47 Phil. 938; Moran, Comment on the Rules of Court administratrix. A special administrator has been defined as the
Volume 3,1980 Edition) Where no notice as required by Section 3, Rule 79 "representative of decedent appointed by the probate court to care for and
of the Rules of Court has been given to persons believed to have an preserve his estate until an executor or general administrator is appointed."
interest in the estate of the deceased person; the proceeding for the (Jones v. Minnesota Transfer R. Co. 1965 ed., at 106 cited in Fule v. Court
settlement of the estate is void and should be annulled. The requirement as of Appeals, 74 SCRA 189). The petitioner as creditor of the estate has a
to notice is essential to the validity of the proceeding in that no person may similar interest in the preservation of the estate as the private respondent
be deprived of his right to property without due process of law. (Eusebio v. who happens to be the widow of deceased Manolito de Guzman. Hence, the
necessity of notice as mandated by the Rules of Court. It is not clear from
Valmores, 96 Phil. 163).
the records exactly what emergency would have ensued if the appointment
Verily, notice through publication of the petition for the settlement of the of an administrator was deferred at least until the most interested parties
estate of a deceased person is jurisdictional, the absence of which makes

SPECPRO| RULE 76| 18

were given notice of the proposed action. No unavoidable delay in the

appointment of a regular administrator is apparent from the records.
As argued by the petitioner:

The respondent Judge himself explains that the order for the preservation
of the estate was limited to properties not claimed by third parties. If
certain properties are already in the possession of the applicant for special
administratrix and are not claimed by other persons, we see no need to
hurry up and take special action to preserve those properties. As it is, the
sheriffs took advantage of the questioned order to seize by force, properties
found in the residence of the petitioner which he vehemently claims are
owned by him and not by the estate of the deceased person.

The position of special administrator, by the very nature of the powers

granted thereby, is one of trust and confidence. It is a fiduciary position
and, therefore, requires a comprehensive determination of the suitability of
the applicant to such position. Hence, under Philippine jurisprudence, it has
been settled that the same fundamental and legal principles governing the The petitioner also asks that the respondent Judge be disqualified from
choice of a regular administrator should be taken in choosing the special continuing with the proceedings of the case on the ground that he is partial
administrator (Francisco, Vol. VB, page 46 citing the cases of Ozaeta v. to the private respondent.
Pecson, Ibid. and Roxas v. Pecson, Ibid.)
In view of the fact that the respondent Judge in his "Explanation" requests
In order to fully and correctly ascertain the suitability of the applicant to the that he be inhibited from further active on the case, this issue has now
trust, a hearing is obviously necessary wherein the applicant can prove his become academic. We accept Judge Angeles" voluntary inhibition in line
qualifications and at the same time affording oppositors, given notice of with our ruling in Pimentel v. Salanga (21 SCRA 160). As we stated
such hearing and application, the opportunity to oppose or contest such in Query of Executive Judge Estrella T. Estrada, Regional Trial Court of
application.
Malolos, Bulacan on the conflicting views of Regional Trial CourtJudges
Manalo and Elisaga Re: Criminal Case No. 4954 M Administrative Matter
The requirement of a hearing and the notification to all the known heirs and
No. 87-9-3918-RTC, October 26, 1987:
other interested parties as to the date thereof is essential to the validity of
the proceeding for the appointment of an administrator "in order that no xxx xxx xxx
person may be deprived of his right or property without due process of law"
(Eusebio v. Valmores, 97 Phil. 163). Moreover, a hearing is necessary in ... A judge may not be legally prohibited from sitting in a litigation. But
order to fully determine the suitability of the applicant to the trust, by when suggestion is made of record that he might be induced to act in favor
giving him the opportunity to prove his qualifications and affording of one party or with bias or prejudice against a litigant arising out of
oppositors, if any, to contest the said application. (Matute v. Court of circumstances reasonably capable of inciting such a state of mind, he
Appeals, 26 SCRA 770; emphasis supplied).
should conduct a careful self-examination. He should exercise his discretion
in a way that the people's faith in the courts of justice is not impaired. A
Since the position of special administrator is a very sensitive one which salutary norm is that he reflect on the probability that a losing party might
requires trust and confidence, it is essential that the suitability of the nurture at the back of his mind the thought that the judge had
applicant be ascertained in a hearing with due notice to all oppositors who unmeritoriously tilted the scales of justice against him. That passion on the
may object precisely to the applicant's suitability to the trust. (Rollo, pp. part of a judge may be generated because of serious charges of misconduct
103-104)
against him by a suitor or his counsel, is not altogether remote. He is a
man, subject to the frailties of other men. He should, therefore, exercise
If emergency situations threatening the dissipation of the assets of an
great care and caution before making up his mind to act or withdraw from a
estate justify a court's immediately taking some kind of temporary action
suit Where that party or counsel is involved. He could in good grace inhibit
even without the required notice, no such emergency is shown in this case.
himself where that case could be heard by another judge and where no
The need for the proper notice even for the appointment of a special
appreciable prejudice would be occasioned to others involved thereon. On
administrator is apparent from the circumstances of this case.
the result of his decisions to sit or not sit may depend to a great extent that
all-important confidence in the impartiality of the judiciary. If after

SPECPRO| RULE 76| 19

reflection he should resolve to voluntarily desist from sitting in a case

where his motives or fairness might be seriously impugned, his action is to
be interpreted as giving meaning and substance to the second paragraph of
Section 1, Rule 137. He serves the cause of the law who forestalls
miscarriage of justice.
Considering the foregoing, we find no need to discuss the other issues
raised in the petition.
WHEREFORE, the instant petition is GRANTED. The questioned orders of the
Regional Trial Court, Branch 58 of Makati are hereby set aside. The case is
ordered remanded to the lower court for the hearing of the petition with
previous notice to all interested parties as required by law. In view of the
voluntary inhibition of the respondent Judge, the Executive Judge of the
Regional Trial Court, Makati is directed to re-raffle the case to another
branch of the court. The Temporary Restraining Order dated June 10, 1987
is made permanent. No costs.
SO ORDERED.

SPECPRO| RULE 76| 20

EN

BANC appointment of a special co-administrator in the same Special Proceeding

No.
4977
in
view
of
the
value
of
the
estate.
[G.R.
No.
L-23225.
February
27,
1971.]
Appellant Herminio Maravilla, probate petitioner and husband of the
IN THE MATTER OF THE PETITION TO PROBATE OF THE WILL OF decedent, died on 16 July 1966, after the case was submitted for decision.
DIGNA MARAVILLA, HERMINIO MARAVILLA, petitioner-appellant, Upon motion for intervention filed by Concepcion Maravilla Kohlhaas and
and ADELINA SAJO, legatee-appellant, v. PEDRO MARAVILLA, Rose Mary Kohlhaas, this Supreme Court allowed their intervention on 24
ASUNCION MARAVILLA and REGINA MARAVILLA, oppositors- July 1967, upon showing that their interest as substitute heirs was vested
appellees, CONCEPCION KOHLHAAS and ROSE MARY KOHLHAAS, definitely upon the death of Herminio Maravilla, and that said movants for
intervenors.
intervention merely adopt the pleadings and briefs filed in behalf of the
deceased Herminio Maravilla so that the intervention will not delay the
Felino
A.
Garcia
for
legatee-appellant. disposition
of
the
case.
2
Salonga, Ordoez, Yap, Sicat & Associates and Paredes, Poblador, Appellees Pedro, 3 Asuncion and Regina, all surnamed "Maravilla," who are
Cruz
&
Nazareno
for Petitioner-Appellant. allegedly the brother and sisters of the deceased Digna Maravilla and
oppositors to the probate, had moved to require the P. C. Laboratory to
Jose Gutierrez David, Placido C. Ramos, Augurio Abeto, Alex Mirasol submit explanations of the photographs of the will and the signatures
and
Alex
Umadhay,
for
oppositors-appellees. thereon previously filed, 4 but this Court, considering that such explanation
would amount to new evidence not heard at the trial, denied the motion on
Jose M. Luison for intervenors.
3
August
1967.
5

DECISION

REYES, J.B.L., J.:

These are appeals (before Republic Act 5440) from the decision of the Court
of First Instance of Negros Occidental, in its Special Proceeding No. 4977,
denying the probate of the will of the deceased, Digna Maravilla. These
appeals were brought to the Court of Appeals, but said court certified the
same to this Supreme Court on 26 May 1964, in accord with the latters
prior decision in Fernandez, etc., Et. Al. v. Maravilla, L-18799, 31 March
1964, 1 which settled the question of appellate jurisdiction in favor of the
Supreme Court over that of the Court of Appeals, on the appeal from the

Herminio Maravillas petition for probate was opposed by the appellees in an

amended opposition filed in the course of the trial in the court below and
admitted without objection. The opposition alleged the following
grounds:jgc:chanrobles.com.ph
"a) That the deceased, Digna Maravilla, the alleged testatrix and the
instrumental witnesses did not sign the alleged will, each and every page
thereof,
in
the
presence
of
each
other;
"b) That the deceased, Digna Maravilla, the alleged testatrix, affixed her
signature to her alleged will under undue and improper pressure and
influence and/or duress brought to bear upon her by the petitioner, for his
own personal benefit and advantage and that of his nieces, Adelina Sajo
and Rose Marie Kohlhaas and his half-sister Conchita Maravilla Kohlhaas;
"c) That the deceased, Digna Maravilla, at the time she affixed her
signature to her alleged will was not of sound and disposing mind;
"d) That the alleged will, now being offered for probate had already been
revoked
by
the
deceased,
Digna
Maravilla."
6

SPECPRO| RULE 76| 21

After trial, the court below rendered judgment, holding as unsubstantiated

the last three (3) grounds above-enumerated, but sustaining the first, that
is, that the will was not executed in accordance with Section 618 of Act
190,
and,
therefore,
denied
the
probate
of
the
will.

pie de este atestiguamiento los unos en presencia de los otros y todos en

presencia de lo testadora, quien en el acto del otorgamiento y firma de este
documento se halla en plena capacidad intelectual, amenazada ni enganada
par
otorgar
y
firmar
este
testamento.

"Asi lo atestiguamos y firmamos por triplicado de nuestro puo y letra en

The petitioner and one Adelina Sajro, who was named a devisee under the Manila hoy a siete de Octubre de mil novecientos cuarenta y cuatro."cralaw
questioned will, appealed the judgment, as aforesaid, assigning errors of virtua1aw
library
fact and law. The oppositors-appellees did not appeal but counter-assigned
errors
their
brief. At the bottom thereof appear the purported signatures of Timoteo Hernaez,
Aquilino Mansueto and Mariano Buenaflor, attesting witnesses. Their
There is no controversy that the late Digna Maravilla died in Manapla, signatures appear also on the left margin of all the five (5) pages. The
Negros Occidental, on 12 August 1958, leaving an extensive estate. Prior to paging of the will is by handwritten words, such as "Pagina Primera,"
her death, she was a resident of Saravia, same province. It is, likewise, "Pagina Segunda," etc., written at the top of each page. On the lower half
undisputed that, at the time of the probate proceedings, only one (1) of the third page, before the name "CONCEPCION P. MARAVILLA," is the
(Aquilino Mansueto) of the three (3) attesting witnesses to the will had typewritten word "hermana," which was crossed out, and over it was
survived, the two (2) others (Timoteo Hernaez and Mariano Buenaflor) handwritten the word "cuada," bearing, at the left hereof, the initials "D.
having
died
previously. M."cralaw
virtua1aw
library
The will submitted for probate, Exhibit "A," which is typewritten in the
Spanish language, purports to have been executed in Manila on the 7th day
of October, 1944; it consists of five (5) pages, including the page on which
the attestation clause was completed. The purported signatures of the
testatrix appear at the logical end of the will on page four and at the left
margin of all the other pages. The attestation clause reads as
follows:jgc:chanrobles.com.ph
"CLAUSULA

DE

After the legacies in favor of herein appellant Adelina Sajo, a niece of Digna
Maravilla, the latters sister-in-law, Concepcion P. Maravilla de Kohlhaas,
and Concepcions daughter, Rose Mary Kohlhaas, the will named appellant
Herminio Maravilla as universal heir and executor. In case of the heirs
death, or if he should not become heir for any reason, he is to be
substituted by the legatee Adelina Sajo in one-half of the properties
bequeathed, the other half to pass collectively to legatees Concepcion P.
Maravilla and the daughter of the latter, Rose Mary Kohlhaas. All previous
ATESTIGUAMIENTO wills
are
declared
revoked.

"Nosotros, TIMOTEO HERNAEZ, AQUILINO MANSUETO y MARIANO

BUENAFLOR los abajo firmantes todos mayores de edad y sin impedimento
alguno para ser testigo de este testamento, certificamos y atestiguamos:
Que en la fecha y lugar arriba mencionados Da. DIGNA MARAVILLA ha
otorgado el presente documento como su testamento y ultima voluntad que
consta de cinco paginas utiles incluyendo esta pagina de atestiguamiento,
escrito a maquinilla en una sola cara de cada hoja, todas paginadas
correlativamente en letras de puo y letra de la testadora, habiendo dicha
testadora, despues de leido el mismo en nuestra presencia, firmado por
triplicado al pie de este testamento y al margen izquierdo de cada una de
las cinco paginas de que se compone en presencia de todos y cada uno de
nosotros que tambien firmamos en el margen izquierdo de cada pagina y al

In view of the trial courts decision of 8 February 1960 (Record on Appeal,

pages 25-51) refusing probate of the will, the instituted heir, Herminio
Maravilla, and the legatee, Adelina Sajo, perfected their appeal, assigning
as errors the findings of the trial court that (a) instrumental witness
Aquilino Mansueto did not actually see Digna Maravilla sign the will; (b) that
Digna Maravilla was not present when Mansueto signed the will as witness;
(c) that Mansueto "most probably" did not see Mariano Buenaflor sign as
witness to the will; (d) the testimony of attorney Manuel Villanueva on the
due execution of Digna Maravillas testament was biased and not deserving
of credit; and (e) in refusing probate to the alleged will for not having been
executed with the requisites prescribed by Section 618 of Act 190.

SPECPRO| RULE 76| 22

At the hearing before the court a quo, only one of the three instrumental
witnesses, Col. (ret.) Aquilino Mansueto, appeared and testified, inasmuch
as the other two witnesses (Timoteo Hernaez and Mariano Buenaflor)
concededly died prior to the trial of the case. Col. Mansueto identified his
own signature and those of Dr. Timoteo Hernaez and of Digna Maravilla,
and asserted that the latter did sign in the presence of all three witnesses
and attorney Villanueva; 7 that Hernaez signed in his presence and in the
presence of the other witnesses and of Digna Maravilla and that present at
the signing were "Dr. Timoteo Hernaez, Mr. Mariano Buenaflor, attorney
Manuel Villanueva and both Herminio Maravilla and Mrs. Digna Maravilla,
(the testatrix) and identified his signature and those of Digna and Hernaez
8 although, subsequently, the witness admitted that he could not remember
very well whether Mr. Maravilla was there at the time he signed the will.
The witness explained that he could not remember some details because
fourteen years had elapsed, and when he signed as a witness, he did not
give it any importance and because of the time he (Col. Mansueto) was
very worried because of rumours that the Japanese Kempeitai would arrest
officers of the USAFFE who did not want to collaborate. 9
Colonel Mansuetos testimony was supported by that of the husband of the
testatrix, Herminio Maravilla, and of attorney Manuel Villanueva. Herminio
Maravillas evidence is that a week before 7 October 1944 his wife, Digna
Maravilla, told him of her desire to "renew" her will because of the critical
period in Manila before the liberation; 10 he invited Buenaflor, Hernaez and
Mansueto to attest to the will; 11 sent his messenger, Mariano Buenaflor, to
ask attorney Manuel Villanueva to come to his house at Mabini, Ermita,
Manila, in order to prepare the will; 12 at his wifes request, he gave the list
of properties to Villanueva; 13 he knew that the will was executed in the
dining room while he remained in the sala; 14 and Villanueva, Mansueto,
Hernaez and Buenaflor were in his house in the morning of 7 October 1944
and sat with his wife around the table in the dining room, with Villanueva at
one end, Digna beside him and the witnesses facing each other; 15 and
after the signing they had lunch, at his invitation, and when they were
eating, petitioner Maravilla saw the three (3) copies of the will on the dining
table.
16
However,
he
did
not
see
there
sign.
17
Attorney Manuel Villanueva, as third witness for the proponent asserted
that he had been the lawyer of the Maravillas; that 5 or 6 days before 7
October 1944 he had been summoned through Mariano Buenaflor to the
house of the Maravillas at 222 Mabini, Ermita, Manila, and there met Digna
who requested him to draft a new will, revoking her old one, to include as

additional beneficiaries Adelina Sajo, Concepcion Maravilla, and the latters

youngest daughter, Rose Mary Kohlhaas, who lived with her (Digna) and
whom she considered as her real children, having cared for them since
childhood. Digna gave Villanueva instructions concerning the will, and
handed him her old will and a handwritten list of the certificates of title of
her properties, which list she asked and obtained from her husband. Before
leaving, Villanueva asked Digna to look for three witnesses; their names
were furnished him two or three days later and he sent word that the will
could be executed on 7 October 1944 (as it actually was); on that day he
brought one original and 2 copies with him, and handed them to Digna; she
read the document and while doing so the witnesses Mansueto, Hernaez
and Buenaflor came. Villanueva talked with them and satisfied himself that
they were competent, whereupon all proceeded to the dining room table.
Attorney Villanueva sat at the head thereof, Digna at his right, and Hernaez
at the right of Digna; at his left was first Mansueto and then Buenaflor. At
the lawyers behest Digna Maravilla read the will in the presence of the
witnesses; after reading she called his attention to a clerical error on page
3, at the second to the last line of paragraph 9, where Concepcion Maravilla
was designated as "hermana" ; the word was cancelled by the testatrix who
wrote "cuada" above the cancelled word, and placed her initials "D. M."
beside it. She also wrote on top of each page the words "Pagina primera,"
"Pagina Segunda" and so on, upon Villanuevas instructions, and then Digna
and the witnesses signed in the presence of one another and of attorney
Villanueva. 18 The latter did not ask the husband (Herminio) to join the
group when the will was executed, and Herminio remained near the window
in the sala. 19 Digna appeared to the witness very healthy and spoke in
Spanish intelligently. The signing ended around 12:30 p.m., and after it all
ate
lunch.
20
Upon the evidence, the trial judge concluded that Mansueto did not actually
see Digna Maravilla sign the will in question, basing such conclusion upon
the fact that while Mansueto positively identified his own signature ("I
identify this as my signature") but not that of the testatrix, his five answers
to the questions of counsel, in reference thereto, being "this must be the
signature
of
Mrs.
Digna
Maravilla."cralaw
virtua1aw
library
In our opinion, the trial courts conclusion is far fetched, fanciful and
unwarranted. It was but natural that witness Mansueto should be positive
about his own signature, since he was familiar with it. He had to be less
positive about Digna Maravillas signature since he could not be closely
acquainted with the same: for aught the record shows, the signing of the

SPECPRO| RULE 76| 23

will was the only occasion he saw her sign; he had no opportunity to study
her signature before or after the execution of Exhibit "A." Furthermore, he
witnessed Dignas signing not less than fourteen years previously. To
demand that in identifying Dignas signature Mansueto should display a
positiveness equal to the certainty shown by him in recognizing his own,
exceeds the bounds of the reasonable. The variation in the expressions
used by the witness is the best evidence that he was being candid and
careful, and it is a clear badge of truthfulness rather than the reverse.
The trial courts error gains no support from Mansuetos statement on
cross-examination that "I remember and (I) signed the will in the presence
of all the witnesses and in the presence of attorney Villanueva" (page 29,
Volume 1, T.s.n., Amago). In the absence of an assurance that no one else
was present, this assertion does not really contradict Mansuetos testimony
in chief that "I have read the entire document before I signed it in the
presence of the other witnesses, Digna Maravilla and Attorney Villanueva"
(t.s.n., Amago, Volume 1, pages 18-19). It is well to note that the cross
examiner did not ask Mansueto if no one else besides those mentioned by
him had seen him sign. Any contradiction inferred from both statements is
purely conjectural; it did not come from the witness and is insufficient to
impeach his veracity, the difference in the answers being due to no more
than an accidental lapse of memory. A will may be allowed even if some
witnesses not remember having attested it, if other evidence satisfactorily
show due execution (V. Act 190, Section 632), and that failure of witness to
identify
his
signature
does
not
bar
probate.
21
That Mansueto, Hernaez and Buenaflor, together with the testatrix and the
lawyer, sat next to one another around one table when the will was signed
is clearly established by the uncontradicted testimony of both attorney
Villanueva and Herminio Maravilla; and that detail proves beyond doubt
that each one of the parties concerned did sign in the presence of all the
others. It should be remembered, in this connection, that the test is not
whether a witness did see the signing of the will but whether he was in a
position
to
see
if
he
chose
to
do
so.
22
The trial court rejected the evidence of both Herminio Maravilla and Manuel
Villanueva, giving as a reason that they were biased and interested in
having the probate succeed. The reasoning is not warranted: for Herminio
Maravilla certainly stood to gain more under the previous will of his wife
(Exhibit "G") where he was made the sole beneficiary, As to attorney
Villanueva, while he had been a friend of Herminio from boyhood, he also

had been the family lawyer, and his intervention in the execution of the will
of one of his clients became inevitable, for it is not to be expected that the
testatrix should call upon a stranger for the purpose. If Villanueva wished to
perjure in favor of Herminio, all he needed was to color his testimony
against the due execution of the will (Exhibit "A") and not in favor thereof,
since, as previously observed, Dignas first will (Exhibit "G") was more
advantageous
to
the
widower.
We find it difficult to understand the trial courts distrust of a lawyer who
did no more than discharge his professional duty, or its readiness to
attribute improper motives to proponents witnesses. This Court, in Sotelo
v.
Luzan,
59
Phil.
908,
has
remarked
that

"It is hardly conceivable that any attorney of any standing would risk his
professional reputation by falsifying a will and then go before a court and
give
false
testimony."cralaw
virtua1aw
library
And in the Fernandez v.
ruled:jgc:chanrobles.com.ph

Tantoco,

49

Phil.

380,

385,

We

"In weighing the testimony of the attesting witnesses to a will, the

statements of a competent attorney, who has been charged with the
responsibility of seeing to the proper execution of the instrument, is entitled
to greater weight than the testimony of a person casually called to
participate in the act, supposing of course that no motive is revealed that
should induce the attorney to prevaricate. The reason is that the mind of
the attorney, being conversant with the requisites of proper execution of
the instrument, is more likely to become fixed on details, and he is more
likely than other persons to retain those incidents in his memory." (Italics
supplied)
Appellees endeavoured to sustain the courts refusal to probate the will by
referring to the evidence of their witness Marino Tupas, a man of "no
permanent job", 23 who narrated that on the last week of September, 1944
one Mariano Buenaflor had been introduced to him by one Lt. Garaton at
his guerrilla outpost in Montalban and described as a man wanted by the
Japanese. Tupas patently exaggerated testimony is that this Buenaflor
stayed with him at his outpost camp until January, 1945, living and sleeping
with him, and was never for a single moment out of his sight. 24 Why a
civilian refugee should remain at a guerrilla outpost for four months;
without engaging in any particular helpful activity on his part, was not

SPECPRO| RULE 76| 24

explained. Shown photographs and asked to identify Buenaflor, Tupas

hedged by pleading that the Buenaflor who stayed with him had a long
beard. Thus, oppositor-appellees reverse alibi for the instrumental witness,
Mariano Buenaflor, was not only patently mendacious but did not establish
any reliable connection between the instrumental witness of Dignas will and
the Buenaflor who, according to Tupas, stuck to him as a burr in 1944. No
wonder
the
trial
court
gave
no
credit
to
such
evidence.
Oppositors attempts to establish that the testatrix Digna Maravilla was
mentally incompetent to validly execute the will in question met no better
fate in the court below. They introduced one Eufrocina Berja who qualified
Digna Maravilla as insane because she saw Digna Maravilla acting strangely
one morning in 1921 (23 years before the will was executed). In Berjas
own
words

condition. Moreover, the courts duty to reconcile conflicts of evidence

should lead it to hold that the symptoms described by Lopez were due to a
temporary disturbance of the nerves caused by the unsettling effect of a
bombardment not previously experienced, compatible with the due
execution of the will on 7 October 1944. As between the testimony of Lopez
and that of attorney Villanueva, who repeatedly visited and talked to the
testatrix around the time her will was executed, We have no hesitation in
accepting the latters view that Digna Maravilla was competent to make the
will when it was signed. The law itself declares that
"To be of sound mind, it is not necessary that the testator be in full
possession of all his reasoning faculties or that his mind be wholly
unbroken, unimpaired or unshattered by disease, injury or other cause."
(Civil
Code,
Article
799;
Bugnao
v. Ubag,
14
Phil.
163.)

"Would you not call a person insane who is waving a bunch of flowers and
singing along a road, especially taking into consideration their reputation in
the
Community?"
(t.s.n.,
21
May
1959,
page
19)

We are satisfied that the preponderance of evidence is to the effect that the
testament, Exhibit "A," was duly executed by a qualified testatrix and
competent witnesses, in conformity with the statutory requirements.

Even if to this ridiculous appraisal were to be added the fact that (according
to this witness) Digna saw her in 1946, but would not answer her questions
and "was in a deep thought (sic) and her tongue was coming out of her
mouth" (Do., pages 14-15), her evidence would certainly not justify a
finding that Digna Maravilla was not competent to execute the testament in
1944. By Berjas standards, any one could be held insane.

IN VIEW OF THE FOREGOING, the decree of the court below denying

probate of the 1944 will of Digna Maravilla (Exhibit "A") is reversed and the
said testament is hereby ordered probated. Let the records be returned to
the Court of origin for further proceedings conformable to law. Costs
against oppositors-appellees.

Nor is the case for the oppositors improved by the evidence of their witness
Eleazar Lopez, who asserted having visited his aunt, Digna Maravilla (whom
he had not seen since he was four years old), two days after the first
bombing of Manila by the American planes in September, 1944. Lopez
claimed to have seen Digna on that occasion laughing and crying and then
staring blankly at the ceiling, without recognizing the witness; and that he
visited her again toward mid-October of the same year and she had
worsened. 25 Coming from a nephew who expected to succeed if the will in
question * were denied probate, and who sought to become administrator
of the estate, even offering to resign from his position in the government if
appointed, 26 this testimony of Lopez was evidently colored by his
monetary interest, thus leading to its correct discrediting by the trial court.
His recollection after 15 years of the alleged symptoms of his aunt is very
suspicious, as it does not even appear that Lopez at the time bothered to
inquire from other persons what caused his aunts alleged abnormal

SPECPRO| RULE 76| 25

G.R. No. L-29184 January 30, 1989

a) Eleuterio de Jesus

BENEDICTO
LEVISTE, petitioner,
vs.
THE COURT OF APPEALS, HON. JUDGE LUIS B. REYES, COURT OF
FIRST INSTANCE OF MANILA, ROSA DEL ROSARIO, RITA BANU,
CARMEN DE GUZMAN-MARQUEZ, JESUS R. DE GUZMAN, RAMON R.
DE GUZMAN, JACINTO R. DE GUZMAN and ANTONIO R. DE
GUZMAN, respondents.

b) Lucita de Jesus

Benedicto Leviste for and in his own behalf.

Gatchalian, Ignacio & Associates for respondents de Guzman.

GRIO-AQUINO, J.:
The issue in this case is whether or not an attorney who was engaged on a
contingent fee basis may, in order to collect his fees, prosecute an appeal
despite his client's refusal to appeal the decision of the trial court.
On September 7, 1963, the petitioner, a practicing attorney, entered into a
written agreement with the private respondent Rosa del Rosario to appear
as her counsel in a petition for probate of the holographic will of the late
Maxima C. Reselva. Under the will, a piece of real property at Sales Street,
Quiapo, Manila, was bequeathed to Del Rosario. It was agreed that
petitioner's contigent fee would be thirty-five per cent (35%) of the
property that Rosa may receive upon the probate of the will (Annex "A", p.
59, Rollo).
In accordance with their agreement, Leviste performed the following
services as Del Rosario's counsel:
(1) Thoroughly researched and studied the law on probate and succession;
(2) Looked for and interviewed witnesses, and took their affidavits;
(3) Filed the petition for. probate is Special Proceeding No. 58325;
(4) Made the proper publications;
(5) Presented at the trial the following witnesses:

c) Purita L. Llanes
d) Rita Banu
e) Jesus Lulod.
On August 20, 1965, Leviste received a letter from Ms. Del Rosario,
informing him that she was terminating his services as her counsel due to
"conflicting interest." This consisted, according to the letter, in petitioner's
moral obligation to protect the interest of his brother-in-law, Gaudencio M.
Llanes, whom Del Rosario and the other parties in the probate proceeding
intended to eject as lessee of the property which was bequeathed to Del
Rosario under the will (Annex "B", p. 60, Rollo).
On September 20, 1965, petitioner filed a "Motion to Intervene to Protect
His Rights to Fees for Professional Services." (Annex "B", p. 60, Rollo.)
In an order dated November 12, 1965 the trial court denied his motion on
the ground that he had "not filed a claim for attorney's fees nor recorded
his attorney's lien." (p. 3, Rollo.)
On November 23, 1965, petitioner filed a "Formal Statement of Claim for
Attorney's Fees and Recording of Attorney's Lien,' which was noted in the
court's order of December 20, 1965 (Annexes "D" and "E", pp. 63 & 64,
Rollo).
Although the order denying his motion to intervene had become final,
petitioner continued to receive copies of the court's orders, as well the
pleadings of the other parties in the case. He also continued to file
pleadings. The case was submitted for decision without the respondents'
evidence.
On November 23, 1966, Del Rosario and Rita Banu, the special
administratrix-legatee, filed a "Motion To Withdraw Petition for Probate"
alleging that Del Rosario waived her rights to the devise in her favor and
agreed that the De Guzman brothers and sisters who opposed her petition
for probate, shall inherit all the properties left by the decedent. (Annex "F",
p. 65, Rollo.)

SPECPRO| RULE 76| 26

In an order of April 13, 1967 the trial court denied the motion to withdraw
the petition for being contrary to public policy (Annex "G", pp. 66-67,
Rollo).

3. The Court of Appeals erred in not reversing the decision in Sp. Proc. No.
58325 denying the probate of the holographic will of the late Maxima C.
Reselva, said decision being patently erroneous.

Nonetheless, on August 28, 1967, the court disallowed the will, holding that
the legal requirements for its validity were not satisfied as only two
witnesses testified that the will and the testatrix's signature were in the
handwriting of Maxima Reselva.

Under his first assignment of error, petitioner argues that by virtue of his
contract of services with Del Rosario, he is a creditor of the latter, and that
under Article 1052 of the Civil Code which provides:

The petitioner filed an appeal bond, notice of appeal, and record on appeal.
The private respondents filed a motion to dismiss the appeal on the ground
that petitioner was not a party in interest.
The petitioner opposed the motion to dismiss his appeal, claiming that he
has a direct and material interest in the decision sought to be reviewed. He
also asked that he be substituted as party-petitioner, in lieu of his former
client, Ms. Del Rosario.
On March 28, 1968, the trial judge dismissed the appeal and denied
petitioner's motion for substitution.

ART. 1052. If the heir repudiates the inheritance to the prejudice of his own
creditors, the latter may petition the court to authorize them to accept it in
the name of the heir.
The acceptance shall benefit the creditors only to an extent sufficient to
cover the amount of their credits. The excess, should there be any, shall in
no case pertain to the renouncer, but shall be adjudicated to the persons to
whom, in accordance with the rules established in this Code, it may belong.
he has a right to accept for his client Del Rosario to the extent of 35%
thereof the devise in her favor (which she in effect repudiated) to protect
his contigent attorney's fees.

The petitioner filed in the Court of Appeals a petition for mandamus (CA- The argument is devoid of merit. Article 1052 of the Civil Code does not
G.R. No. 41248) praying that the trial court be ordered to give due course apply to this case. That legal provision protects the creditor of a repudiating
to his appeal and to grant his motion for substitution.
heir. Petitioner is not a creditor of Rosa del Rosario. The payment of his fees
is contingent and dependent upon the successful probate of the holographic
On May 22, 1968, the Court of Appeals dismissed the petition for being will. Since the petition for probate was dismissed by the lower court, the
insufficient in form and substance as the petitioner did not appear to be the contingency did not occur. Attorney Leviste is not entitled to his fee.
proper party to appeal the decision in Special Proceeding No. 58325 (Annex
1, p. 77, Rollo).
Furthermore, Article 1052 presupposes that the obligor is an heir. Rosa del
Rosario is not a legal heir of the late Maxima C. Reselva. Upon the dismissal
Upon the denial of his motion for reconsideration, petitioner appealed by of her petition for probate of the decedent's will, she lost her right to inherit
certiorari to this Court, assigning the following errors against the Court of any part of the latter's estate. There is nothing for the petitioner to accept
Appeals' resolution:
in her name.
1. The Court of Appeals erred in finding that the petitioner appears not to
be the proper party to appeal the decision in Sp. Proc. No. 58325 of the
Court of First Instance of Manila.
2. Assuming the petitioner's right of appeal is doubtful, the Court of Appeals
erred in dismissing his petition for mandamus; and

This Court had ruled in the case of Recto vs. Harden, 100 Phil. 1427, that
"the contract (for contingent attorney's fees) neither gives, nor purports to
give, to the appellee (lawyer) any right whatsoever, personal or real, in and
to her (Mrs. Harden's) aforesaid share in the conjugal partnership. The
amount thereof is simply a basis for the computation of said fees."
The Court of Appeals did not err in dismissing the petition for mandamus,
for while it is true that, as contended by the petitioner, public policy favors
the probate of a will, it does not necessarily follow that every will that is

SPECPRO| RULE 76| 27

presented for probate, should be allowed. The law lays down procedures
which should be observed and requisites that should be satisfied before a
will may be probated. Those procedures and requirements were not
followed in this case resulting in the disallowance of the will. There being no
valid will, the motion to withdraw the probate petition was inconsequential.
Petitioner was not a party to the probate proceeding in the lower court. He
had no direct interest in the probate of the will. His only interest in the
estate is an indirect interest as former counsel for a prospective heir.
In Paras vs. Narciso, 35 Phil. 244, We had occassion to rule that one who is
only indirectly interested in a will may not interfere in its probate. Thus:
... the reason for the rule excluding strangers from contesting the will, is
not that thereby the court maybe prevented from learning facts which
would justify or necessitate a denial of probate, but rather that the courts
and the litigants should not be molested by the intervention in the
proceedings of persons with no interest in the estate which would entitle
them to be heard with relation thereto. (Paras vs. Narciso, 35 Phil. 244,
246.)
Similary, in Morente vs. Firmalino, 40 O.G. 21st Supp. 1, We held:
We are of the opinion that the lower court did not err in holding that notice
of an attorney's lien did not entitle the attorney-appellant to subrogate
himself in lieu of his client. It only gives him the right to collect a certain
amount for his services in case his client is awarded a certain sum by the
court.
WHEREFORE, the petition for certiorari is denied for lack of merit. Costs
against the petitioner.
SO ORDERED.

G.R. Nos. 83843-44

April 5, 1990

SPECPRO| RULE 76| 28

IN THE MATTER OF THE PETITION TO APPROVE THE WILL OF

MELECIO LABRADOR. SAGRADO LABRADOR (Deceased), substituted
by ROSITA LABRADOR, ENRICA LABRADOR, and CRISTOBAL
LABRADOR, petitioners-appellants,
vs.
COURT
OF
APPEALS, 1 GAUDENCIO
LABRADOR,
and
JESUS
LABRADOR, respondents-appellees.
Benjamin
C.
Santos
Law
Offices
Rodrigo V. Fontelera for private respondents.

for

petitioners.

sold said parcel of land to Navat for only Five Thousand (P5,000) Pesos.
(Rollo, p. 37)
Sagrado thereupon filed, on November 28, 1975, against his brothers,
Gaudencio and Jesus, for the annulment of said purported Deed of Absolute
Sale over a parcel of land which Sagrado allegedly had already acquired by
devise from their father Melecio Labrador under a holographic will executed
on March 17, 1968, the complaint for annulment docketed as Civil Case No.
934-I, being premised on the fact that the aforesaid Deed of Absolute Sale
is fictitious.

The sole issue in this case is whether or not the alleged holographic will of
one Melecio Labrador is dated, as provided for in Article 810 2 of the New
Civil Code.

After both parties had rested and submitted their respective evidence, the
trial court rendered a joint decision dated February 28, 1985, allowing the
probate of the holographic will and declaring null and void the Deed of
Absolute sale. The court a quo had also directed the respondents (the
defendants in Civil Case No. 934-I) to reimburse to the petitioners the sum
of P5,000.00 representing the redemption price for the property paid by the
plaintiff-petitioner Sagrado with legal interest thereon from December 20,
1976, when it was paid to vendee a retro.

The antecedent and relevant facts are as follows: On June 10, 1972,
Melecio Labrador died in the Municipality of Iba, province of Zambales,
where he was residing, leaving behind a parcel of land designated as Lot
No. 1916 under Original Certificate of Title No. P-1652, and the following
heirs, namely: Sagrado, Enrica, Cristobal, Jesus, Gaudencio, Josefina,
Juliana, Hilaria and Jovita, all surnamed Labrador, and a holographic will.

Respondents appealed the joint decision to the Court of Appeals, which on

March 10, 1988 modified said joint decision of the court a quo by denying
the allowance of the probate of the will for being undated and reversing the
order of reimbursement. Petitioners' Motion for Reconsideration of the
aforesaid decision was denied by the Court of Appeals, in the resolution of
June 13, 1988. Hence, this petition.

On July 28, 1975, Sagrado Labrador (now deceased but substituted by his
heirs), Enrica Labrador and Cristobal Labrador, filed in the court a quo a
petition for the probate docketed as Special Proceeding No. 922-I of the
alleged holographic will of the late Melecio Labrador.

Petitioners now assign the following errors committed by respondent court,

to wit:

Subsequently, on September 30, 1975, Jesus Labrador (now deceased but

substituted by his heirs), and Gaudencio Labrador filed an opposition to the
petition on the ground that the will has been extinguished or revoked by
implication of law, alleging therein that on September 30, 1971, that is,
before Melecio's death, for the consideration of Six Thousand (P6,000)
Pesos, testator Melecio executed a Deed of Absolute Sale, selling,
transferring and conveying in favor of oppositors Jesus and Gaudencio Lot
No. 1916 and that as a matter of fact, O.C.T. No. P-1652 had been
cancelled by T.C.T. No. T-21178. Earlier however, in 1973, Jesus Labrador

THE COURT OF APPEALS ERRED IN NOT ALLOWING AND APPROVING THE

PROBATE OF THE HOLOGRAPHIC WILL OF THE TESTATOR MELECIO
LABRADOR; and

PARAS, J.:

II
THE COURT OF APPEALS ERRED IN FINDING THAT THE ORDER OF THE
LOWER COURT DIRECTING THE REIMBURSEMENT OF THE FIVE THOUSAND
PESOS REPRESENTING THE REDEMPTION PRICE WAS ERRONEOUS.

SPECPRO| RULE 76| 29

The alleged undated holographic will written in Ilocano translated into

English, is quoted as follows:
ENGLISH
INTERPRETATION
OF
LATE
MELECIO
LABRADOR
BY ATTY. FIDENCIO L. FERNANDEZ

THE
WILL
WRITTEN
IN

OF
THE
ILOCANO

I First Page
This is also where it appears in writing of the place which is assigned and
shared or the partition in favor of SAGRADO LABRADOR which is the
fishpond located and known place as Tagale.
And this place that is given as the share to him, there is a measurement of
more or less one hectare, and the boundary at the South is the property
and assignment share of ENRICA LABRADOR, also their sister, and the
boundary in the West is the sea, known as the SEA as it is, and the
boundary on the NORTH is assignment belonging to CRISTOBAL
LABRADOR, who likewise is also their brother. That because it is now the
time for me being now ninety three (93) years, then I feel it is the right
time for me to partition the fishponds which were and had been bought or
acquired by us, meaning with their two mothers, hence there shall be no
differences among themselves, those among brothers and sisters, for it is I
myself their father who am making the apportionment and delivering to
each and everyone of them the said portion and assignment so that there
shall not be any cause of troubles or differences among the brothers and
sisters.
II Second Page
And this is the day in which we agreed that we are making the partitioning
and assigning the respective assignment of the said fishpond, and this
being in the month of March, 17th day, in the year 1968, and this decision
and or instruction of mine is the matter to be followed. And the one who
made this writing is no other than MELECIO LABRADOR, their father.
Now, this is the final disposition that I am making in writing and it is this
that should be followed and complied with in order that any differences or
troubles may be forestalled and nothing will happen along these troubles
among my children, and that they will be in good relations among
themselves, brothers and sisters;

And those improvements and fruits of the land; mangoes, bamboos and all
coconut trees and all others like the other kind of bamboo by name of
Bayog, it is their right to get if they so need, in order that there shall be
nothing that anyone of them shall complain against the other, and against
anyone of the brothers and sisters.
III THIRD PAGE
And that referring to the other places of property, where the said property
is located, the same being the fruits of our earnings of the two mothers of
my children, there shall be equal portion of each share among themselves,
and or to be benefitted with all those property, which property we have
been able to acquire.
That in order that there shall be basis of the truth of this writing (WILL)
which I am here hereof manifesting of the truth and of the fruits of our
labor which their two mothers, I am signing my signature below hereof, and
that this is what should be complied with, by all the brothers and sisters,
the children of their two mothers JULIANA QUINTERO PILARISA and
CASIANA AQUINO VILLANUEVA Your father who made this writing (WILL),
and he is, MELECIO LABRADOR y RALUTIN (p. 46, Rollo)
The petition, which principally alleges that the holographic will is really
dated, although the date is not in its usual place, is impressed with merit.
The will has been dated in the hand of the testator himself in perfect
compliance with Article 810.1wphi1 It is worthy of note to quote the first
paragraph of the second page of the holographic will, viz:
And this is the day in which we agreed that we are making the partitioning
and assigning the respective assignment of the said fishpond, and this
being in the month of March, 17th day, in the year 1968, and this decision
and or instruction of mine is the matter to be followed. And the one who
made this writing is no other than MELECIO LABRADOR, their father.
(emphasis supplied) (p. 46, Rollo)
The law does not specify a particular location where the date should be
placed in the will. The only requirements are that the date be in the will
itself and executed in the hand of the testator. These requirements are
present in the subject will.
Respondents claim that the date 17 March 1968 in the will was when the
testator and his beneficiaries entered into an agreement among themselves

SPECPRO| RULE 76| 30

about "the partitioning and assigning the respective assignments of the said
fishpond," and was not the date of execution of the holographic will; hence,
the will is more of an "agreement" between the testator and the
beneficiaries thereof to the prejudice of other compulsory heirs like the
respondents. This was thus a failure to comply with Article 783 which
defines a will as "an act whereby a person is permitted, with the formalities
prescribed by law, to control to a certain degree the disposition of his
estate, to take effect after his death."
Respondents are in error. The intention to show 17 March 1968 as the date
of the execution of the will is plain from the tenor of the succeeding words
of the paragraph. As aptly put by petitioner, the will was not an agreement
but a unilateral act of Melecio Labrador who plainly knew that what he was
executing was a will. The act of partitioning and the declaration that such
partitioning as the testator's instruction or decision to be followed reveal
that Melecio Labrador was fully aware of the nature of the estate property
to be disposed of and of the character of the testamentary act as a means
to control the disposition of his estate.
Anent the second issue of finding the reimbursement of the P5,000
representing the redemption price as erroneous, respondent court's
conclusion is incorrect. When private respondents sold the property
(fishpond) with right to repurchase to Navat for P5,000, they were actually
selling property belonging to another and which they had no authority to
sell, rendering such sale null and void. Petitioners, thus "redeemed" the
property from Navat for P5,000, to immediately regain possession of the
property for its disposition in accordance with the will. Petitioners therefore
deserve to be reimbursed the P5,000.
PREMISES CONSIDERED, the decision of the Court of Appeals dated March
10, 1988 is hereby REVERSED. The holographic will of Melecio Labrador is
APPROVED and ALLOWED probate. The private respondents are directed to
REIMBURSE the petitioners the sum of Five Thousand Pesos (P5,000.00).
SO ORDERED.

SPECPRO| RULE 76| 31

G.R. No. L-38338 January 28, 1985

IN THE MATTER OF THE INTESTATE ESTATE OF ANDRES G. DE JESUS
AND BIBIANA ROXAS DE JESUS, SIMEON R. ROXAS & PEDRO ROXAS
DE
JESUS, petitioners,
vs.
ANDRES R. DE JESUS, JR., respondent.
Raul S. Sison Law Office for petitioners.
Rafael Dinglasan, Jr. for heir M. Roxas.
Ledesma, Guytingco Velasco and Associates for Ledesa and A. R. de Jesus.

GUTIERREZ, JR., J.:

This is a petition for certiorari to set aside the order of respondent Hon.
Jose C. Colayco, Presiding Judge Court of First Instance of Manila, Branch
XXI disallowing the probate of the holographic Will of the deceased Bibiana
Roxas de Jesus.
The antecedent facts which led to the filing of this petition are undisputed.
After the death of spouses Andres G. de Jesus and Bibiana Roxas de Jesus,
Special Proceeding No. 81503 entitled "In the Matter of the Intestate Estate
of Andres G. de Jesus and Bibiana Roxas de Jesus" was filed by petitioner
Simeon R. Roxas, the brother of the deceased Bibiana Roxas de Jesus.
On March 26, 1973, petitioner Simeon R. Roxas was appointed
administrator. After Letters of Administration had been granted to the
petitioner, he delivered to the lower court a document purporting to be the
holographic Will of the deceased Bibiana Roxas de Jesus. On May 26, 1973,
respondent Judge Jose Colayco set the hearing of the probate of the
holographic Win on July 21, 1973.
Petitioner Simeon R. Roxas testified that after his appointment as
administrator, he found a notebook belonging to the deceased Bibiana R. de
Jesus and that on pages 21, 22, 23 and 24 thereof, a letter-win addressed
to her children and entirely written and signed in the handwriting of the
deceased Bibiana R. de Jesus was found. The will is dated "FEB./61 " and

states: "This is my win which I want to be respected although it is not

written by a lawyer. ...
The testimony of Simeon R. Roxas was corroborated by the testimonies of
Pedro Roxas de Jesus and Manuel Roxas de Jesus who likewise testified that
the letter dated "FEB./61 " is the holographic Will of their deceased mother,
Bibiana R. de Jesus. Both recognized the handwriting of their mother and
positively Identified her signature. They further testified that their deceased
mother understood English, the language in which the holographic Will is
written, and that the date "FEB./61 " was the date when said Will was
executed by their mother.
Respondent Luz R. Henson, another compulsory heir filed an "opposition to
probate" assailing the purported holographic Will of Bibiana R. de Jesus
because a it was not executed in accordance with law, (b) it was executed
through force, intimidation and/or under duress, undue influence and
improper pressure, and (c) the alleged testatrix acted by mistake and/or
did not intend, nor could have intended the said Will to be her last Will and
testament at the time of its execution.
On August 24, 1973, respondent Judge Jose C. Colayco issued an order
allowing the probate of the holographic Will which he found to have been
duly executed in accordance with law.
Respondent Luz Roxas de Jesus filed a motion for reconsideration alleging
inter alia that the alleged holographic Will of the deceased Bibiana R. de
Jesus was not dated as required by Article 810 of the Civil Code. She
contends that the law requires that the Will should contain the day, month
and year of its execution and that this should be strictly complied with.
On December 10, 1973, respondent Judge Colayco reconsidered his earlier
order and disallowed the probate of the holographic Will on the ground that
the word "dated" has generally been held to include the month, day, and
year. The dispositive portion of the order reads:
WHEREFORE, the document purporting to be the holographic Will of Bibiana
Roxas de Jesus, is hereby disallowed for not having been executed as
required by the law. The order of August 24, 1973 is hereby set aside.
The only issue is whether or not the date "FEB./61 " appearing on the
holographic Will of the deceased Bibiana Roxas de Jesus is a valid
compliance with the Article 810 of the Civil Code which reads:

SPECPRO| RULE 76| 32

ART. 810. A person may execute a holographic will which must be entirely
written, dated, and signed by the hand of the testator himself. It is subject
to no other form, and may be made in or out of the Philippines, and need
not be witnessed.

In Justice Capistrano's concurring opinion in Heirs of Raymundo Castro v.

Bustos (27 SCRA 327) he emphasized that:

The petitioners contend that while Article 685 of the Spanish Civil Code and
Article 688 of the Old Civil Code require the testator to state in his
holographic Win the "year, month, and day of its execution," the present
Civil Code omitted the phrase Ao mes y dia and simply requires that the
holographic Will should be dated. The petitioners submit that the liberal
construction of the holographic Will should prevail.

... The law has a tender regard for the will of the testator expressed in his
last will and testament on the ground that any disposition made by the
testator is better than that which the law can make. For this reason,
intestate succession is nothing more than a disposition based upon the
presumed will of the decedent.

Respondent Luz Henson on the other hand submits that the purported
holographic Will is void for non-compliance with Article 810 of the New Civil
Code in that the date must contain the year, month, and day of its
execution. The respondent contends that Article 810 of the Civil Code was
patterned after Section 1277 of the California Code and Section 1588 of the
Louisiana Code whose Supreme Courts had consistently ruled that the
required date includes the year, month, and day, and that if any of these is
wanting, the holographic Will is invalid. The respondent further contends
that the petitioner cannot plead liberal construction of Article 810 of the
Civil Code because statutes prescribing the formalities to be observed in the
execution of holographic Wills are strictly construed.
We agree with the petitioner.
This will not be the first time that this Court departs from a strict and literal
application of the statutory requirements regarding the due execution of
Wills. We should not overlook the liberal trend of the Civil Code in the
manner of execution of Wills, the purpose of which, in case of doubt is to
prevent intestacy
The underlying and fundamental objectives permeating the provisions of
the law on wigs in this Project consists in the liberalization of the manner of
their execution with the end in view of giving the testator more freedom in
expressing his last wishes, but with sufficien safeguards and restrictions to
prevent the commission of fraud and the exercise of undue and improper
pressure and influence upon the testator.
This objective is in accord with the modem tendency with respect to the
formalities in the execution of wills. (Report of the Code Commission, p.
103)

xxx xxx xxx

Thus, the prevailing policy is to require satisfaction of the legal

requirements in order to guard against fraud and bad faith but without
undue or unnecessary curtailment of testamentary privilege Icasiano v.
Icasiano, 11 SCRA 422). If a Will has been executed in substantial
compliance with the formalities of the law, and the possibility of bad faith
and fraud in the exercise thereof is obviated, said Win should be admitted
to probate (Rey v. Cartagena 56 Phil. 282). Thus,
xxx xxx xxx
... More than anything else, the facts and circumstances of record are to be
considered in the application of any given rule. If the surrounding
circumstances point to a regular execution of the wilt and the instrument
appears to have been executed substantially in accordance with the
requirements of the law, the inclination should, in the absence of any
suggestion of bad faith, forgery or fraud, lean towards its admission to
probate, although the document may suffer from some imperfection of
language, or other non-essential defect. ... (Leynez v. Leynez 68 Phil. 745).
If the testator, in executing his Will, attempts to comply with all the
requisites, although compliance is not literal, it is sufficient if the objective
or purpose sought to be accomplished by such requisite is actually attained
by the form followed by the testator.
The purpose of the solemnities surrounding the execution of Wills has been
expounded by this Court in Abangan v. Abanga 40 Phil. 476, where we
ruled that:
The object of the solemnities surrounding the execution of wills is to close
the door against bad faith and fraud, to avoid substitution of wills and
testaments and to guaranty their truth and authenticity. ...

SPECPRO| RULE 76| 33

In particular, a complete date is required to provide against such

contingencies as that of two competing Wills executed on the same day, or
of a testator becoming insane on the day on which a Will was executed
(Velasco v. Lopez, 1 Phil. 720). There is no such contingency in this case.
We have carefully reviewed the records of this case and found no evidence
of bad faith and fraud in its execution nor was there any substitution of
Wins and Testaments. There is no question that the holographic Will of the
deceased Bibiana Roxas de Jesus was entirely written, dated, and signed by
the testatrix herself and in a language known to her. There is also no
question as to its genuineness and due execution. All the children of the
testatrix agree on the genuineness of the holographic Will of their mother
and that she had the testamentary capacity at the time of the execution of
said Will. The objection interposed by the oppositor-respondent Luz Henson
is that the holographic Will is fatally defective because the date "FEB./61 "
appearing on the holographic Will is not sufficient compliance with Article
810 of the Civil Code. This objection is too technical to be entertained.
As a general rule, the "date" in a holographic Will should include the day,
month, and year of its execution. However, when as in the case at bar,
there is no appearance of fraud, bad faith, undue influence and pressure
and the authenticity of the Will is established and the only issue is whether
or not the date "FEB./61" appearing on the holographic Will is a valid
compliance with Article 810 of the Civil Code, probate of the holographic
Will should be allowed under the principle of substantial compliance.
WHEREFORE, the instant petition is GRANTED. The order appealed from is
REVERSED and SET ASIDE and the order allowing the probate of the
holographic Will of the deceased Bibiana Roxas de Jesus is reinstated.
SO ORDERED.

SPECPRO| RULE 76| 34

G.R. No. L-40207 September 28, 1984

ROSA
K.
KALAW, petitioner,
vs.
HON. JUDGE BENJAMIN RELOVA, Presiding Judge of the CFI of
Batangas,
Branch
VI,
Lipa
City,
and
GREGORIO
K.
KALAW, respondents.
Leandro H. Fernandez for petitioner.
Antonio Quintos and Jose M. Yacat for respondents.

MELENCIO-HERRERA, J.:
On September 1, 1971, private respondent GREGORIO K. KALAW, claiming
to be the sole heir of his deceased sister, Natividad K. Kalaw, filed a petition
before the Court of First Instance of Batangas, Branch VI, Lipa City, for the
probate of her holographic Will executed on December 24, 1968.
The holographic Will reads in full as follows:
My Last will and Testament
In the name of God, Amen.
I Natividad K. Kalaw Filipino 63years of age, single, and a resident of Lipa
City, being of sound and disposing mind and memory, do hereby declare
thus to be my last will and testament.

Art. 814. In case of any insertion, cancellation, erasure or alteration in a

holographic will the testator must authenticate the same by his full
signature.
ROSA's position was that the holographic Will, as first written, should be
given effect and probated so that she could be the sole heir thereunder.
After trial, respondent Judge denied probate in an Order, dated September
3, 197 3, reading in part:
The document Exhibit "C" was submitted to the National Bureau of
Investigation for examination. The NBI reported that the handwriting, the
signature, the insertions and/or additions and the initial were made by one
and the same person. Consequently, Exhibit "C" was the handwriting of the
decedent, Natividad K. Kalaw. The only question is whether the win, Exhibit
'C', should be admitted to probate although the alterations and/or
insertions or additions above-mentioned were not authenticated by the full
signature of the testatrix pursuant to Art. 814 of the Civil Code. The
petitioner contends that the oppositors are estopped to assert the provision
of Art. 814 on the ground that they themselves agreed thru their counsel to
submit the Document to the NBI FOR EXAMINATIONS. This is untenable.
The parties did not agree, nor was it impliedly understood, that the
oppositors would be in estoppel.
The Court finds, therefore, that the provision of Article 814 of the Civil Code
is applicable to Exhibit "C". Finding the insertions, alterations and/or
additions in Exhibit "C" not to be authenticated by the full signature of the
testatrix Natividad K. Kalaw, the Court will deny the admission to probate of
Exhibit "C".

1. It is my will that I'll be burried in the cemetery of the catholic church of

Lipa City. In accordance with the rights of said Church, and that my
executrix hereinafter named provide and erect at the expose of my state a
suitable monument to perpetuate my memory.

WHEREFORE, the petition to probate Exhibit "C" as the holographic will of

Natividad K. Kalaw is hereby denied.

xxx xxx xxx

From that Order, GREGORIO moved for reconsideration arguing that since
the alterations and/or insertions were the testatrix, the denial to probate of
her holographic Will would be contrary to her right of testamentary
disposition. Reconsideration was denied in an Order, dated November 2,
1973, on the ground that "Article 814 of the Civil Code being , clear and
explicit, (it) requires no necessity for interpretation."

The holographic Will, as first written, named ROSA K. Kalaw, a sister of the
testatrix as her sole heir. Hence, on November 10, 1971, petitioner ROSA K.
Kalaw opposed probate alleging, in substance, that the holographic Will
contained alterations, corrections, and insertions without the proper
authentication by the full signature of the testatrix as required by Article
814 of the Civil Code reading:

SO ORDERED.

SPECPRO| RULE 76| 35

From that Order, dated September 3, 1973, denying probate, and the Order
dated November 2, 1973 denying reconsideration, ROSA filed this Petition
for Review on certiorari on the sole legal question of whether or not
the original unaltered text after subsequent alterations and insertions were
voided by the Trial Court for lack of authentication by the full signature of
the testatrix, should be probated or not, with her as sole heir.
Ordinarily, when a number of erasures, corrections, and interlineations
made by the testator in a holographic Will litem not been noted under his
signature, ... the Will is not thereby invalidated as a whole, but at most
only
as
respects
the
particular
words
erased,
corrected
or
interlined.1 Manresa gave an Identical commentary when he said "la
omision de la salvedad no anula el testamento, segun la regla de
jurisprudencia establecida en la sentencia de 4 de Abril de 1895." 2
However, when as in this case, the holographic Will in dispute had only one
substantial provision, which was altered by substituting the original heir
with another, but which alteration did not carry the requisite of full
authentication by the full signature of the testator, the effect must be that
the entire Will is voided or revoked for the simple reason that nothing
remains in the Will after that which could remain valid. To state that the Will
as first written should be given efficacy is to disregard the seeming change
of mind of the testatrix. But that change of mind can neither be given effect
because she failed to authenticate it in the manner required by law by
affixing her full signature,

validez del testamento olografo, ya porque, de admitir lo contrario, se

Ilegaria al absurdo de que pequefias enmiendas no salvadas, que en nada
afectasen a la parte esencial y respectiva del testamento, vinieran a anular
este, y ya porque el precepto contenido en dicho parrafo ha de entenderse
en perfecta armonia y congruencia con el art. 26 de la ley del Notariado que
declara nulas las adiciones apostillas entrerrenglonados, raspaduras y
tachados en las escrituras matrices, siempre que no se salven en la forma
prevenida, paro no el documento que las contenga, y con mayor
motivo cuando las palabras enmendadas, tachadas, o entrerrenglonadas no
tengan importancia ni susciten duda alguna acerca del pensamiento del
testador, o constituyan meros accidentes de ortografia o de purez
escrituraria, sin trascendencia alguna(l).
Mas para que sea aplicable la doctrina de excepcion contenida en este
ultimo fallo, es preciso que las tachaduras, enmiendas o entrerrenglonados
sin salvar saan de pala bras que no afecter4 alteren ni uarien de modo
substancial la express voluntad del testador manifiesta en el documento.
Asi lo advierte la sentencia de 29 de Noviembre de 1916, que declara nulo
un testamento olografo por no estar salvada por el testador la enmienda del
guarismo ultimo del ao en que fue extendido 3(Emphasis ours).
WHEREFORE, this Petition is hereby dismissed and the Decision of
respondent Judge, dated September 3, 1973, is hereby affirmed in toto. No
costs.
SO ORDERED.

The ruling in Velasco, supra, must be held confined to such insertions,

cancellations, erasures or alterations in a holographic Will, which affect only
the efficacy of the altered words themselves but not the essence and
validity of the Will itself. As it is, with the erasures, cancellations and
alterations made by the testatrix herein, her real intention cannot be
determined with certitude. As Manresa had stated in his commentary on
Article 688 of the Spanish Civil Code, whence Article 814 of the new Civil
Code was derived:
... No infringe lo dispuesto en este articulo del Codigo (el 688) la sentencia
que no declara la nulidad de un testamento olografo que contenga palabras
tachadas, enmendadas o entre renglones no salvadas por el testador bajo
su firnia segun previene el parrafo tercero del mismo, porque, en
realidad, tal omision solo puede afectar a la validez o eficacia de tales
palabras, y nunca al testamento mismo, ya por estar esa disposicion en
parrafo aparte de aquel que determine las condiciones necesarias para la

G.R. Nos. 75005-06 February 15, 1990

SPECPRO| RULE 76| 36

JOSE
vs.
INTERMEDIATE
APPELLATE
RIVERA, respondents.

RIVERA petitioner,
COURT

and

ADELAIDO

J.

Lorenzo O. Navarro, Jr. for petitioner.

Regalado P. Morales for private respondent.

CRUZ, J.:
Was there only one Venancio Rivera in Mabalacat, Pampanga, or were there
two?
On May 30, 1975, a prominent and wealthy resident of that town named
Venancio Rivera died. On July 28, 1975, Jose Rivera, claiming to be the only
surviving legitimate son of the deceased, filed a petition for the issuance of
letters of administration over Venancio's estate. Docketed as SP No. 1076,
this petition was opposed by Adelaido J. Rivera, who denied that Jose was
the son of the decedent. Adelaido averred that Venancio was his father and
did not die intestate but in fact left two holographic wills. 1
On November 7, 1975, Adelaido J. Rivera filed, also with the Regional Trial
Court of Angeles City, a petition for the probate of the holographic wills.
Docketed as SP No. 1091, this petition was in turn opposed by Jose Rivera,
who reiterated that he was the sole heir of Venancio's intestate estate. 2
On November 11, 1975, the two cases were consolidated. Adelaido J. Rivera
was later appointed special administrator. After joint trial, Judge Eliodoro B.
Guinto found that Jose Rivera was not the son of the decedent but of a
different Venancio Rivera who was married to Maria Vital. The Venancio
Rivera whose estate was in question was married to Maria Jocson, by whom
he had seven children, including Adelaido. Jose Rivera had no claim to this
estate because the decedent was not his father. The holographic wills were
also admitted to probate. 3
On appeal, the decision of the trial court was affirmed by the then
Intermediate Appellate Court. 4 Its decision is now the subject of this
petition, which urges the reversal of the respondent court.

In support of his claim that he was the sole heir of the late Venancio Rivera,
Jose sought to show that the said person was married in 1928 to Maria
Vital, who was his mother. He submitted for this purpose Exhibit A, the
marriage certificate of the couple, and Exhibit B, his own baptismal
certificate where the couple was indicated as his parents. The petitioner
also presented Domingo Santos, who testified that Jose was indeed the son
of the couple and that he saw Venancio and Jose together several
times. 5 Jose himself stressed that Adelaido considered him a half-brother
and kissed his hand as a sign of respect whenever they met. He insisted
that Adelaido and his brothers and sisters were illegitimate children, sired
by Venancio with Maria Jocson. 6
Adelaido, for his part, maintained that he and his brothers and sisters were
born to Venancio Rivera and Maria Jocson, who were legally married and
lived as such for many years. He explained that he could not present his
parents' marriage certificate because the record of marriages for 1942 in
Mabalacat were destroyed when the town was burned during the war, as
certified by Exhibit 6. 7 He also submitted his own birth certificate and those
of his sisters Zenaida and Yolanda Rivera, who were each described therein
as the legimitate children of Venancio Rivera and Maria Jocson. 8 Atty.
Regalado P. Morales, then 71 years of age, affirmed that he knew the
deceased and his parents, Magno Rivera and Gertrudes de los Reyes, and it
was during the Japanese occupation that Venancio introduced to him Maria
Jocson as his wife. 9 To prove that there were in fact two persons by the
same name of Venancio Rivera, Adelaido offered Venancio Rivera's
baptismal certificate showing that his parents were Magno Rivera and
Gertrudes de los Reyes, 10as contrasted with the marriage certificate
submitted by Jose, which indicated that the Venancio Rivera subject thereof
was the son of Florencio Rivera and Estrudez Reyes. 11 He also denied
kissing Jose's hand or recognizing him as a brother. 12
We find in favor of Adelaido J. Rivera.
It is true that Adelaido could not present his parents' marriage certificate
because, as he explained it, the marriage records for 1942 in the Mabalacat
civil registry were burned during the war. Even so, he could still rely on the
presumption of marriage, since it is not denied that Venancio Rivera and
Maria Jocson lived together as husband and wife for many years, begetting
seven children in all during that time.
According to Article 220 of the Civil Code:

SPECPRO| RULE 76| 37

In case of doubt, all presumptions favor the solidarity of the family. Thus
every intendment of the law or fact leans toward the validity of marriage,
the indissolubility of the marriage bonds, the legitimacy of children, ... .
The Rules of Court, in Rule 131, provides:
SEC. 3. Disputable presumptions. The following presumptions are
satisfactory if uncontradicted, but may be contradicted and overcome by
other evidence:
xxx xxx xxx
(aa) That a man and woman deporting themselves as husband and wife
have entered into a lawful contract of marriage.
By contrast, although Jose did present his parents' marriage certificate,
Venancio was described therein as the son of Florencio Rivera. Presumably,
he was not the same Venancio Rivera described in Exhibit 4, his baptismal
certificate, as the son of Magno Rivera. While we realize that such baptismal
certificate is not conclusive evidence of Venancio's filiation (which is not the
issue here) it may nonetheless be considered to determine his real identity.
Jose insists that Magno and Florencio are one and the same person, arguing
that it is not uncommon for a person to be called by different names. The
Court is not convinced. There is no evidence that Venancio's father was
called either Magno or Florencio. What is more likely is that two or more
persons may live at the same time and bear the same name, even in the
same community. That is what the courts below found in the cases at bar.
What this Court considers particularly intriguing is why, if it is true that he
was the legitimate son of Venancio Rivera, Jose did not assert his right as
such when his father was still alive. By his own account, Jose supported
himself and presumably also his mother Maria Vital as a gasoline
attendant and driver for many years. All the time, his father was residing in
the same town and obviously prospering and available for support. His
alleged father was openly living with another woman and raising another
family, but this was apparently accepted by Jose without protest, taking no
step whatsoever to invoke his status. If, as he insists, he and Venancio
Rivera were on cordial terms, there is no reason why the father did not help
the son and instead left Jose to fend for himself as a humble worker while
his other children by Maria Jocson enjoyed a comfortable life. Such paternal
discrimination is difficult to understand, especially if it is considered

assuming the claims to be true that Jose was the oldest and, by his own
account, the only legitimate child of Venancio Rivera.
And there is also Maria Vital, whose attitude is no less incomprehensible. As
Venancio's legitimate wife if indeed she was she should have objected
when her husband abandoned her and founded another family by another
woman, and in the same town at that. Seeing that the children of Maria
Jocson were being raised well while her own son Jose was practically
ignored and neglected, she nevertheless did not demand for him at least
support, if not better treatment, from his legitimate father. It is unnatural
for a lawful wife to say nothing if she is deserted in favor of another woman
and for a caring mother not to protect her son's interests from his wayward
father's neglect. The fact is that this forsaken wife never demanded support
from her wealthy if errant husband. She did not file a complaint for bigamy
or concubinage against Venancio Rivera and Maria Jocson, the alleged
partners in crime and sin. Maria Vital was completely passive and
complaisant.
Significantly, as noted by the respondent court, Maria Vital was not even
presented at the trial to support her son's allegations that she was the
decedent's lawful wife. Jose says this was not done because she was
already old and bedridden then. But there was no impediment to the taking
of her deposition in her own house. No effort was made toward this end
although her testimony was vital to the petitioner's cause. Jose dismisses
such testimony as merely "cumulative," but this Court does not agree.
Having alleged that Maria Jocson's marriage to Venancio Rivera was null
and void, Jose had the burden of proving that serious allegation.
We find from the evidence of record that the respondent court did not err in
holding that the Venancio Rivera who married Maria Jocson in 1942 was not
the same person who married Maria Vital, Jose's legitimate mother, in
1928. Jose belonged to a humbler family which had no relation whatsoever
with the family of Venancio Rivera and Maria Vital. This was more
prosperous and prominent. Except for the curious Identity of names of the
head of each, there is no evidence linking the two families or showing that
the deceased Venancio Rivera was the head of both.
Now for the holographic wills. The respondent court considered them valid
because it found them to have been written, dated and signed by the
testator himself in accordance with Article 810 of the Civil Code. It also held
there was no necessity of presenting the three witnesses required under
Article 811 because the authenticity of the wills had not been questioned.

SPECPRO| RULE 76| 38

The existence and therefore also the authenticity of the holographic wills
were questioned by Jose Rivera. In his own petition in SP No. 1076, he
declared that Venancio Rivera died intestate; and in SP No. 1091, he denied
the existence of the holographic wills presented by Adelaido Rivera for
probate. In both proceedings, Jose Rivera opposed the holographic wills
submitted by Adelaido Rivera and claimed that they were spurious.
Consequently, it may be argued, the respondent court should have applied
Article 811 of the Civil Code, providing as follows:
In the probate of a holographic will, it shall be necessary that at least one
witness who knows the handwriting and signature of the testator explicitly
declare that the will and the signature are in the handwriting of the testator.
If the will is contested, at least three of such witnesses shall be required.
The flaw in this argument is that, as we have already determined, Jose
Rivera is not the son of the deceased Venancio Rivera whose estate is in
question. Hence, being a mere stranger, he had no personality to contest
the wills and his opposition thereto did not have the legal effect of requiring
the three witnesses. The testimony of Zenaida and Venancio Rivera, Jr., who
authenticated the wills as having been written and signed by their father,
was sufficient.
WHEREFORE, the petition is DENIED and the challenged decision is
AFFIRMED, with costs against the petitioner.
SO ORDERED.

SPECPRO| RULE 76| 39

G.R. No. 123486

August 12, 1999

EUGENIA RAMONAL CODOY, and MANUEL RAMONAL, petitioners,

vs.
EVANGELINE R. CALUGAY, JOSEPHINE SALCEDO, and UEFEMIA
PATIGAS, respondents.
PARDO, J.:
Before us is a petition for review on certiorari of the decision of the Court of
Appeals1 and its resolution denying reconsideration, ruling:
Upon the unrebutted testimony of appellant Evangeline Calugay and
witness Matilde Ramonal Binanay, the authenticity of testators holographic
will has been established and the handwriting and signature therein (exhibit
S) are hers, enough to probate said will. Reversal of the judgment appealed
from and the probate of the holographic will in question be called for. The
rule is that after plaintiff has completed presentation of his evidence and
the defendant files a motion for judgment on demurrer to evidence on the
ground that upon the facts and the law plaintiff has shown no right to relief,
if the motion is granted and the order to dismissal is reversed on appeal,
the movant loses his right to present evidence in his behalf (Sec, 1 Rule 35
Revised Rules of Court). Judgment may, therefore, be rendered for
appellant in the instant case.
Wherefore, the order appealed from is REVERSED and judgment rendered
allowing the probate of the holographic will of the testator Matilde Seo
Vda. de Ramonal.2
The facts are as follows:
On April 6, 1990, Evangeline Calugay, Josephine Salcedo and Eufemia
Patigas, devisees and legatees of the holographic will of the deceased
Matilde Seo Vda. de Ramonal, filed with the Regional Trial Court, Misamis
Oriental, Branch 18, a petition3 for probate of the holographic will of the
deceased, who died on January 16, 1990.
In the petition, respondents claimed that the deceased Matilde Seo Vda.
de Ramonal, was of sound and disposing mind when she executed the will
on August 30, 1978, that there was no fraud, undue influence, and duress
employed in the person of the testator, and will was written voluntarily.

The assessed value of the decedent's property, including all real and
personal property was about P400,000.00, at the time of her death. 4
On June 28, 1990, Eugenia Ramonal Codoy and Manuel Ramonal filed an
opposition5 to the petition for probate, alleging that the holographic will was
a forgery and that the same is even illegible. This gives an impression that
a "third hand" of an interested party other than the "true hand" of Matilde
Seo Vda. de Ramonal executed the holographic will.
Petitioners argued that the repeated dates incorporated or appearing on will
after every disposition is out of the ordinary. If the deceased was the one
who executed the will, and was not forced, the dates and the signature
should appear at the bottom after the dispositions, as regularly done and
not after every disposition. And assuming that the holographic will is in the
handwriting of the deceased, it was procured by undue and improper
pressure and influence on the part of the beneficiaries, or through fraud
and trickery.1wphi1.nt
Respondents presented six (6) witnesses and various documentary
evidence. Petitioners instead of presenting their evidence, filed a
demurrer6 to evidence, claiming that respondents failed to establish
sufficient factual and legal basis for the probate of the holographic will of
the deceased Matilde Seo Vda. de Ramonal.
On November 26, 1990, the lower Court issued an order, the dispositive
portion of which reads:
WHEREFORE, in view of the foregoing consideration, the Demurrer to
Evidence having being well taken, same is granted, and the petition for
probate of the document (Exhibit "S") on the purported Holographic Will of
the late Matilde Seo Vda. de Ramonal, is denied for insufficiency of
evidence and lack of merits.7
On December 12, 1990, respondents filed a notice of appeal, 8 and in
support of their appeal, the respondents once again reiterated the
testimony of the following witnesses, namely: (1) Augusto Neri; (2)
Generosa Senon; (3) Matilde Ramonal Binanay; (4) Teresita Vedad; (5)
Fiscal Rodolfo Waga; and (6) Evangeline Calugay.
To have a clear understanding of the testimonies of the witnesses, we recite
an account of their testimonies.

SPECPRO| RULE 76| 40

Augusto Neri, Clerk of Court, Court of First Instance of Misamis Oriental,

where the special proceedings for the probate of the holographic will of the
deceased was filed. He produced and identified the records of the case. The
documents presented bear the signature of the deceased, Matilde Seo
Vda. de Ramonal, for the purpose of laying the basis for comparison of the
handwriting of the testatrix, with the writing treated or admitted as genuine
by the party against whom the evidence is offered.
Generosa Senon, election registrar of Cagayan de Oro, was presented to
produced and identify the voter's affidavit of the decedent. However, the
voters' affidavit was not produced for the same was already destroyed and
no longer available.
Matilde Ramonal Binanay, testified that the deceased Matilde Seo Vda. de
Ramonal was her aunt, and that after the death of Matilde's husband, the
latter lived with her in her parent's house for eleven (11) years from 1958
to 1969. During those eleven (11) years of close association the deceased,
she acquired familiarity with her signature and handwriting as she used to
accompany her (deceased Matilde Seo Vda. de Ramonal) in collecting
rentals from her various tenants of commercial buildings, and deceased
always issued receipts. In addition to this, she (witness Matilde Binanay)
assisted the deceased in posting the records of the accounts, and carried
personal letters of the deceased to her creditors.
Matilde Ramonal Binanay further testified that at the time of the death of
Matilde Vda. de Ramonal, she left a holographic will dated August 30, 1978,
which was personally and entirely written, dated and signed, by the
deceased and that all the dispositions therein, the dates, and the signatures
in said will, were that of the deceased.
Fiscal Rodolfo Waga testified that before he was appointed City Fiscal of
Cagayan de Oro, he was a practicing lawyer, and handled all the pleadings
and documents signed by the deceased in connection with the proceedings
of her late husband, as a result of which he is familiar with the handwriting
of the latter. He testified that the signature appearing in the holographic will
was similar to that of the deceased, Matilde Seo Vda. de Ramonal, but he
can not be sure.
The fifth witness presented was Mrs. Teresita Vedad, an employee of the
Department of Environment and Natural Resources, Region 10. She testified
that she processed the application of the deceased for pasture permit and
was familiar with the signature of the deceased, since the signed

documents in her presence, when the latter was applying for pasture
permit.
Finally, Evangeline Calugay, one of the respondents, testified that she had
lived with the deceased since birth, and was in fact adopted by the latter.
That after a long period of time she became familiar with the signature of
the deceased. She testified that the signature appearing in the holographic
will is the true and genuine signature of Matilde Seo Vda. de Ramonal.
The holographic will which was written in Visayan, is translated in English as
follows:
Instruction
August 30, 1978
1. My share at Cogon, Raminal Street, for Evangeline Calugay.
(Sgd) Matilde Vda de Ramonal
August 30, 1978
2. Josefina Salcedo must be given 1,500 square meters at Pinikan Street.
(Sgd) Matilde Vda de Ramonal
August 30, 1978
3. My jewelry's shall be divided among:
1. Eufemia Patigas
2. Josefina Salcedo
3. Evangeline Calugay
(Sgd) Matilde Vda de Ramonal
August 30, 1978
4. I bequeath my one (1) hectare land at Mandumol, Indahag to Evangeline
R. Calugay
(Sgd) Matilde Vda de Ramonal

SPECPRO| RULE 76| 41

August 30, 1978

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

become an impossibility. That is evidently the reason why the second

paragraph of article 811 prescribes that
in the absence of any competent witness referred to in the preceding
paragraph, and if the court deems it necessary, expert testimony may be
resorted to.
As can be see, the law foresees, the possibility that no qualified witness ma
be found (or what amounts to the same thing, that no competent witness
may be willing to testify to the authenticity of the will), and provides for
resort to expert evidence to supply the deficiency.
It may be true that the rule of this article (requiring that three witnesses be
presented if the will is contested and only one if no contest is had) was
derived from the rule established for ordinary testaments (CF Cabang vs.
Delfianado, 45 PHIL 291; Tolentino v. Francisco, 57 PHIL 742). But it can
not be ignored that the requirement can be considered mandatory only in
case of ordinary testaments, precisely because the presence of at least
three witnesses at the execution of ordinary wills is made by law essential
to their validity (Art. 805). Where the will is holographic, no witness need
be present (art. 10), and the rule requiring production of three witnesses
must be deemed merely permissive if absurd results are to be avoided.
Again, under Art. 811, the resort to expert evidence is conditioned by the
words "if the court deem it necessary", which reveal that what the law
deems essential is that the court should be convinced of the will's
authenticity. Where the prescribed number of witnesses is produced and the
court is convinced by their testimony that the will is genuine, it may
consider it unnecessary to call for expert evidence. On the other hand, if no
competent witness is available, or none of those produced is convincing, the
court may still, and in fact it should resort to handwriting experts. The duty
of the court, in fine, is to exhaust all available lines of inquiry, for the state
is as much interested as the proponent that the true intention of the
testator be carried into effect.
Paraphrasing Azaola vs. Singson, even if the genuineness of the holographic
will were contested, Article 811 of the civil code cannot be interpreted as to
require the compulsory presentation of three witnesses to identify the
handwriting of the testator, under penalty of the having the probate denied.
No witness need be present in the execution of the holographic will. And the
rule requiring the production of three witnesses is merely permissive. What
the law deems essential is that the court is convinced of the authenticity of

SPECPRO| RULE 76| 42

the will. Its duty is to exhaust all available lines of inquiry, for the state is
as much interested in the proponent that the true intention of the testator
be carried into effect. And because the law leaves it to the trial court to
decide if experts are still needed, no unfavorable inference can be drawn
from a party's failure to offer expert evidence, until and unless the court
expresses dissatisfaction with the testimony of the lay witnesses. 10
According to the Court of Appeals, Evangeline Calugay, Matilde Ramonal
Binanay and other witnesses definitely and in no uncertain terms testified
that the handwriting and signature in the holographic will were those of the
testator herself.
Thus, upon the unrebutted testimony of appellant Evangeline Calugay and
witness Matilde Ramonal Binanay, the Court of Appeals sustained the
authenticity of the holographic will and the handwriting and signature
therein, and allowed the will to probate.

and is inconsistent with the idea of discretion and that the presumption is
that the word "shall," when used in a statute is mandatory.11
Laws are enacted to achieve a goal intended and to guide against an evil or
mischief that aims to prevent. In the case at bar, the goal to achieve is to
give effect to the wishes of the deceased and the evil to be prevented is the
possibility that unscrupulous individuals who for their benefit will employ
means to defeat the wishes of the testator.
So, we believe that the paramount consideration in the present petition is
to determine the true intent of the deceased. An exhaustive and objective
consideration of the evidence is imperative to establish the true intent of
the testator.

The petitioners raise the following issues:

It will be noted that not all the witnesses presented by the respondents
testified explicitly that they were familiar with the handwriting of testator.
In the case of Augusto Neri, clerk of court, Court of First Instance, Misamis
Oriental, he merely identified the record of Special Proceedings No. 427
before said court. He was not presented to declare explicitly that the
signature appearing in the holographic was that of the deceased.

(1) Whether or not the ruling of the case of Azaola vs. Singson, 109 Phil.
102, relied upon by the respondent Court of Appeals, was applicable to the
case.

Generosa E. Senon, the election registrar of Cagayan de Oro City, was

presented to identify the signature of the deceased in the voter's affidavit,
which was not even produced as it was no longer available.

(2) Whether or not the Court of Appeals erred in holding that private
respondents had been able to present credible evidence to that the date,
text, and signature on the holographic will written entirely in the hand of
the testatrix.

Matilde Ramonal Binanay, on the other hand, testified that:

Hence, this petition.

(3) Whether or not the Court of Appeals erred in not analyzing the
signatures in the holographic will of Matilde Seo Vda. de Ramonal.
In this petition, the petitioners ask whether the provisions of Article 811 of
the Civil Code are permissive or mandatory. The article provides, as a
requirement for the probate of a contested holographic will, that at least
three witnesses explicitly declare that the signature in the will is the
genuine signature of the testator.1wphi1.nt
We are convinced, based on the language used, that Article 811 of the Civil
Code is mandatory. The word "shall" connotes a mandatory order. We have
ruled that "shall" in a statute commonly denotes an imperative obligation

Q. And you said for eleven (11) years Matilde Vda de Ramonal resided
with your parents at Pinikitan, Cagayan de Oro City. Would you tell the
court what was your occupation or how did Matilde Vda de Ramonal keep
herself busy that time?
A.

Collecting rentals.

Q.

From where?

A.
From the land rentals and commercial buildings at Pabayo-Gomez
streets.12
xxx

xxx

xxx

Q.

Who sometime accompany her?

A.

I sometimes accompany her.

SPECPRO| RULE 76| 43

Q.

In collecting rentals does she issue receipts?

Q.

Letters of whom?

A.

Yes, sir.13

A.

Matilde.

Q.

To whom?

A.

To her creditors.15

xxx

xxx

xxx

Q. Showing to you the receipt dated 23 October 1979, is this the one you
are referring to as one of the receipts which she issued to them?
A.

Yes, sir.

xxx

xxx

xxx

Q.
Now there is that signature of Matilde vda. De Ramonal, whose
signature is that Mrs. Binanay?

Q. You testified that at time of her death she left a will. I am showing to
you a document with its title "tugon" is this the document you are referring
to?

A.

Matilde vda. De Ramonal.

A.

Q.

Why do you say that is the signature of Matilde Vda. De Ramonal?

A.

I am familiar with her signature.

Q.
Showing to you this exhibit "S", there is that handwritten "tugon",
whose handwriting is this?

Q. Now, you tell the court Mrs. Binanay, whether you know Matilde vda de
Ramonal kept records of the accounts of her tenants?

Yes, sir.

A.

My Aunt.

Q.

Why do you say this is the handwriting of your aunt?

Because I am familiar with her signature.16

A.

Yes, sir.

A.

Q.

Why do you say so?

What Ms. Binanay saw were pre-prepared receipts and letters of the
deceased, which she either mailed or gave to her tenants. She did not
declare that she saw the deceased sign a document or write a note.

A. Because we sometimes post a record of accounts in behalf of Matilde

Vda. De Ramonal.
Q.

How is this record of accounts made? How is this reflected?

A.

In handwritten.14

xxx

xxx

xxx

Q.
In addition to collection of rentals, posting records of accounts of
tenants and deed of sale which you said what else did you do to acquire
familiarity of the signature of Matilde Vda De Ramonal?

Further, during the cross-examination, the counsel for petitioners elicited

the fact that the will was not found in the personal belongings of the
deceased but was in the possession of Ms. Binanay. She testified that:
Q. Mrs. Binanay, when you were asked by counsel for the petitioners if the
late Matilde Seno vda de Ramonal left a will you said, yes?
A.

Yes, sir.

Q.

Who was in possession of that will?

A.

Posting records.

A.

I.

Q.

Aside from that?

Q.

Since when did you have the possession of the will?

A.

Carrying letters.

A.

It was in my mother's possession.

SPECPRO| RULE 76| 44

Q.

So, it was not in your possession?

xxx

A.

Sorry, yes.

Q. Now, let us go to the third signature of Matilde Ramonal. Do you know

that there are retracings in the word Vda.?

Q. And when did you come into possession since as you said this was
originally in the possession of your mother?
A.

1985.17

xxx

xxx

xxx

xxx

xxx

A.

Yes, a little. The letter L is continuous.

Q.

And also in Matilde the letter L is continued to letter D?

A.

Yes, sir.

Q. Now, Mrs. Binanay was there any particular reason why your mother
left that will to you and therefore you have that in your possession?

Q. Again the third signature of Matilde Vda de Ramonal the letter L in

Matilde is continued towards letter D.

A. It was not given to me by my mother, I took that in the aparador when

she died.

A.

Yes, sir.

Q.

And there is a retracing in the word Vda.?

A.

Yes, sir.20

Q.

After taking that document you kept it with you?

A.

I presented it to the fiscal.

Q.

For what purpose?

A.

Just to seek advice.

Q.

Advice of what?

A.

About the will.18

In her testimony it was also evident that Ms. Binanay kept the fact about
the will from petitioners, the legally adopted children of the deceased. Such
actions put in issue her motive of keeping the will a secret to petitioners
and revealing it only after the death of Matilde Seo Vda. de Ramonal.

xxx

xxx

xxx

Q. Now, that was 1979, remember one year after the alleged holographic
will. Now, you identified a document marked as Exhibit R. This is dated
January 8, 1978 which is only about eight months from August 30, 1978.
Do you notice that the signature Matilde Vda de Ramonal is beautifully
written and legible?
A.

Yes, sir the handwriting shows that she was very exhausted.

Q. You just say that she was very exhausted while that in 1978 she was
healthy was not sickly and she was agile. Now, you said she was
exhausted?

In the testimony of Ms. Binanay, the following were established:

A.

Q. Now, in 1978 Matilde Seno Vda de Ramonal was not yet a sickly person
is that correct?

Q. How did you know that she was exhausted when you were not present
and you just tried to explain yourself out because of the apparent
inconsistencies?

A.

Yes, sir.

Q. She was up and about and was still uprightly and she could walk agilely
and she could go to her building to collect rentals, is that correct?
A.

Yes, sir.19

A.

In writing.

That was I think. (sic).

Q. Now, you already observed this signature dated 1978, the same year
as the alleged holographic will. In exhibit I, you will notice that there is no

SPECPRO| RULE 76| 45

retracing; there is no hesitancy and the signature was written on a fluid

movement. . . . And in fact, the name Eufemia R. Patigas here refers to one
of the petitioners?

Q. Now, I am showing to you Exhibit S which is captioned "tugon" dated

Agosto 30, 1978 there is a signature here below item No. 1, will you tell
this court whose signature is this?

A.

A.

Yes, sir, that is her signature.

Q.

Why do you say that is her signature?

A.

I am familiar with her signature.23

Yes, sir.

Q. You will also notice Mrs. Binanay that it is not only with the questioned
signature appearing in the alleged holographic will marked as Exhibit X but
in the handwriting themselves, here you will notice the hesitancy and
tremors, do you notice that?
A.

Yes, sir.

21

Evangeline Calugay declared that the holographic will was written, dated
and signed in the handwriting of the testator. She testified that:
Q. You testified that you stayed with the house of the spouses Matilde and
Justo Ramonal for the period of 22 years. Could you tell the court the
services if any which you rendered to Matilde Ramonal?
A. During my stay I used to go with her to the church, to market and then
to her transactions.
Q.

What else? What services that you rendered?

So, the only reason that Evangeline can give as to why she was familiar
with the handwriting of the deceased was because she lived with her since
birth. She never declared that she saw the deceased write a note or sign a
document.
The former lawyer of the deceased, Fiscal Waga, testified that:
Q.

Do you know Matilde Vda de Ramonal?

A. Yes, sir I know her because she is my godmother the husband is my

godfather. Actually I am related to the husband by consanguinity.
Q.

Can you tell the name of the husband?

A.

The late husband is Justo Ramonal.24

A. After my college days I assisted her in going to the bank, paying taxes
and to her lawyer.

xxx

Q.

What was your purpose of going to her lawyer?

Q. Can you tell this court whether the spouses Justo Ramonal and Matilde
Ramonal have legitimate children?

A.

I used to be her personal driver.

Q. In the course of your stay for 22 years did you acquire familiarity of the
handwriting of Matilde Vda de Ramonal?
A.

Yes, sir.

Q.

How come that you acquired familiarity?

A.

Because I lived with her since birth.22

xxx

xxx

xxx

A.

xxx

xxx

As far as I know they have no legitimate children. 25

xxx

xxx

xxx

Q.

You said after becoming a lawyer you practice your profession? Where?

A.

Here in Cagayan de Oro City.

Q.
Do you have services rendered with the deceased Matilde vda de
Ramonal?
A.

I assisted her in terminating the partition, of properties.

SPECPRO| RULE 76| 46

Q. When you said assisted, you acted as her counsel? Any sort of counsel
as in what case is that, Fiscal?

A.
Well, that is similar to that signature appearing in the project of
partition.

A. It is about the project partition to terminate the property, which was

under the court before.26

Q. Also in item no. 3 there is that signature Matilde Vda de Ramonal, can
you tell the court whose signature is that?

xxx

A. As I said, this signature also seems to be the signature of Matilde vda

de Ramonal.

xxx

xxx

Q.
Appearing in special proceeding no. 427 is the amended inventory
which is marked as exhibit N of the estate of Justo Ramonal and there
appears a signature over the type written word Matilde vda de Ramonal,
whose signature is this?
A.

That is the signature of Matilde Vda de Ramonal.

Q.

Also in exhibit n-3, whose signature is this?

A.

This one here that is the signature of Mrs. Matilde vda de Ramonal. 27

xxx

xxx

xxx

Q.

Why do you say that?

A.

Because there is a similarity in the way it is being written.

Q. How about this signature in item no. 4, can you tell the court whose
signature is this?
A. The same is true with the signature in item no. 4. It seems that they
are similar.29
xxx

xxx

xxx

Q. Aside from attending as counsel in that Special Proceeding Case No.

427 what were the other assistance wherein you were rendering
professional service to the deceased Matilde Vda de Ramonal?

Q. Mr. Prosecutor, I heard you when you said that the signature of Matilde
Vda de Ramonal Appearing in exhibit S seems to be the signature of Matilde
vda de Ramonal?

A. I can not remember if I have assisted her in other matters but if there
are documents to show that I have assisted then I can recall. 28

A.

xxx

xxx

xxx

Q. Now, I am showing to you exhibit S which is titled "tugon", kindly go

over this document, Fiscal Waga and tell the court whether you are familiar
with the handwriting contained in that document marked as exhibit "S"?
A.

I am not familiar with the handwriting.

Q.

This one, Matilde Vda de Ramonal, whose signature is this?

A. I think this signature here it seems to be the signature of Mrs. Matilde

vda de Ramonal.
Q.
Now, in item No. 2 there is that signature here of Matilde Vda de
Ramonal, can you tell the court whose signature is this?

Yes, it is similar to the project of partition.

Q. So you are not definite that this is the signature of Matilde vda de
Ramonal. You are merely supposing that it seems to be her signature
because it is similar to the signature of the project of partition which you
have made?
A.

That is true.30

From the testimonies of these witnesses, the Court of Appeals allowed the
will to probate and disregard the requirement of three witnesses in case of
contested holographic will, citing the decision in Azaola vs. Singson,31ruling
that the requirement is merely directory and not mandatory.
In the case of Ajero vs. Court of Appeals,32 we said that "the object of the
solemnities surrounding the execution of wills is to close the door against
bad faith and fraud, to avoid substitution of wills and testaments and to
guaranty their truth and authenticity. Therefore, the laws on this subject
should be interpreted in such a way as to attain these primordial ends. But

SPECPRO| RULE 76| 47

on the other hand, also one must not lose sight of the fact that it is not the
object of the law to restrain and curtail the exercise of the right to make a
will.
However, we cannot eliminate the possibility of a false document being
adjudged as the will of the testator, which is why if the holographic will is
contested, that law requires three witnesses to declare that the will was in
the handwriting of the deceased.
The will was found not in the personal belongings of the deceased but with
one of the respondents, who kept it even before the death of the deceased.
In the testimony of Ms. Binanay, she revealed that the will was in her
possession as early as 1985, or five years before the death of the deceased.
There was no opportunity for an expert to compare the signature and the
handwriting of the deceased with other documents signed and executed by
her during her lifetime. The only chance at comparison was during the
cross-examination of Ms. Binanay when the lawyer of petitioners asked Ms.
Binanay to compare the documents which contained the signature of the
deceased with that of the holographic will and she is not a handwriting
expert. Even the former lawyer of the deceased expressed doubts as to the
authenticity of the signature in the holographic will.
A visual examination of the holographic will convince us that the strokes are
different when compared with other documents written by the testator. The
signature of the testator in some of the disposition is not readable. There
were uneven strokes, retracing and erasures on the will.
Comparing the signature in the holographic will dated August 30,
1978,33 and the signatures in several documents such as the application
letter for pasture permit dated December 30, 1980, 34 and a letter dated
June 16, 1978,35 the strokes are different. In the letters, there are
continuous flows of the strokes, evidencing that there is no hesitation in
writing unlike that of the holographic will. We, therefore, cannot be certain
that ruling holographic will was in the handwriting by the deceased.
IN VIEW WHEREOF, the decision appealed from is SET ASIDE. The records
are ordered remanded to the court of origin with instructions to allow
petitioners to adduce evidence in support of their opposition to the probate
of the holographic will of the deceased Matilde Seo vda. de
Ramonal.1wphi1.nt
No costs.

SO ORDERED.

SPECPRO| RULE 76| 48

G.R. No. 106720 September 15, 1994

SPOUSES
ROBERTO
AND
THELMA
AJERO, petitioners,
vs.
THE COURT OF APPEALS AND CLEMENTE SAND, respondents.
Miguel D. Larida for petitioners.
Montilla Law Office for private respondent.

PUNO, J.:
This is an appeal by certiorari from the Decision of the Court of
Appeals 1 in CA-G.R. CV No. 22840, dated March 30, 1992, the dispositive
portion of which reads;
PREMISES CONSIDERED, the questioned decision of November 19, 1988 of
the trial court is hereby REVERSED and SET ASIDE, and the petition for
probate is hereby DISMISSED. No costs.
The earlier Decision was rendered by the RTC of Quezon City, Branch
94, 2 in Sp. Proc. No. Q-37171, and the instrument submitted for probate is
the holographic will of the late Annie Sand, who died on November 25,
1982.
In the will, decedent named as devisees, the following: petitioners Roberto
and Thelma Ajero, private respondent Clemente Sand, Meriam S. Arong,
Leah Sand, Lilia Sand, Edgar Sand, Fe Sand, Lisa S. Sand, and Dr. Jose
Ajero, Sr., and their children.
On January 20, 1983, petitioners instituted Sp. Proc. No. Q-37171, for
allowance of decedent's holographic will. They alleged that at the time of its
execution, she was of sound and disposing mind, not acting under duress,
fraud or undue influence, and was in every respect capacitated to dispose of
her estate by will.
Private respondent opposed the petition on the grounds that: neither the
testament's body nor the signature therein was in decedent's handwriting;
it contained alterations and corrections which were not duly signed by
decedent; and, the will was procured by petitioners through improper
pressure and undue influence. The petition was likewise opposed by Dr.

Jose Ajero. He contested the disposition in the will of a house and lot
located in Cabadbaran, Agusan Del Norte. He claimed that said property
could not be conveyed by decedent in its entirety, as she was not its sole
owner.
Notwithstanding the oppositions, the trial court admitted the decedent's
holographic will to probate. It found, inter alia:
Considering then that the probate proceedings herein must decide only the
question of identity of the will, its due execution and the testamentary
capacity of the testatrix, this probate court finds no reason at all for the
disallowance of the will for its failure to comply with the formalities
prescribed by law nor for lack of testamentary capacity of the testatrix.
For one, no evidence was presented to show that the will in question is
different from the will actually executed by the testatrix. The only
objections raised by the oppositors . . . are that the will was not written in
the handwriting of the testatrix which properly refers to the question of its
due execution, and not to the question of identity of will. No other will was
alleged to have been executed by the testatrix other than the will herein
presented. Hence, in the light of the evidence adduced, the identity of the
will presented for probate must be accepted, i.e., the will submitted in
Court must be deemed to be the will actually executed by the testatrix.
xxx xxx xxx
While the fact that it was entirely written, dated and signed in the
handwriting of the testatrix has been disputed, the petitioners, however,
have satisfactorily shown in Court that the holographic will in question was
indeed written entirely, dated and signed in the handwriting of the testatrix.
Three (3) witnesses who have convincingly shown knowledge of the
handwriting of the testatrix have been presented and have explicitly and
categorically identified the handwriting with which the holographic will in
question was written to be the genuine handwriting and signature of the
testatrix. Given then the aforesaid evidence, the requirement of the law
that the holographic will be entirely written, dated and signed in the
handwriting of the testatrix has been complied with.
xxx xxx xxx
As to the question of the testamentary capacity of the testratix, (private
respondent) Clemente Sand himself has testified in Court that the testatrix
was completely in her sound mind when he visited her during her birthday

SPECPRO| RULE 76| 49

celebration in 1981, at or around which time the holographic will in question

was executed by the testatrix. To be of sound mind, it is sufficient that the
testatrix, at the time of making the will, knew the value of the estate to be
disposed of, the proper object of her bounty, and the character of the
testamentary act . . . The will itself shows that the testatrix even had
detailed knowledge of the nature of her estate. She even identified the lot
number and square meters of the lots she had conveyed by will. The
objects of her bounty were likewise identified explicitly. And considering
that she had even written a nursing book which contained the law and
jurisprudence on will and succession, there is more than sufficient showing
that she knows the character of the testamentary act.
In this wise, the question of identity of the will, its due execution and the
testamentary capacity of the testatrix has to be resolved in favor of the
allowance of probate of the will submitted herein.
Likewise, no evidence was presented to show sufficient reason for the
disallowance of herein holographic will. While it was alleged that the said
will was procured by undue and improper pressure and influence on the
part of the beneficiary or of some other person, the evidence adduced have
not shown any instance where improper pressure or influence was exerted
on the testatrix. (Private respondent) Clemente Sand has testified that the
testatrix was still alert at the time of the execution of the will, i.e., at or
around the time of her birth anniversary celebration in 1981. It was also
established that she is a very intelligent person and has a mind of her own.
Her independence of character and to some extent, her sense of superiority,
which has been testified to in Court, all show the unlikelihood of her being
unduly influenced or improperly pressured to make the aforesaid will. It
must be noted that the undue influence or improper pressure in question
herein only refer to the making of a will and not as to the specific
testamentary provisions therein which is the proper subject of another
proceeding. Hence, under the circumstances, this Court cannot find
convincing reason for the disallowance of the will herein.
Considering then that it is a well-established doctrine in the law on
succession that in case of doubt, testate succession should be preferred
over intestate succession, and the fact that no convincing grounds were
presented and proven for the disallowance of the holographic will of the late
Annie Sand, the aforesaid will submitted herein must be admitted to
probate. 3 (Citations omitted.)

On appeal, said Decision was reversed, and the petition for probate of
decedent's will was dismissed. The Court of Appeals found that, "the
holographic will fails to meet the requirements for its validity." 4 It held that
the decedent did not comply with Articles 813 and 814 of the New Civil
Code, which read, as follows:
Art. 813: When a number of dispositions appearing in a holographic will are
signed without being dated, and the last disposition has a signature and
date, such date validates the dispositions preceding it, whatever be the
time of prior dispositions.
Art. 814: In case of insertion, cancellation, erasure or alteration in a
holographic will, the testator must authenticate the same by his full
signature.
It alluded to certain dispositions in the will which were either unsigned and
undated, or signed but not dated. It also found that the erasures,
alterations and cancellations made thereon had not been authenticated by
decedent.
Thus, this appeal which is impressed with merit.
Section 9, Rule 76 of the Rules of Court provides that will shall be
disallowed in any of the following cases:
(a) If not executed and attested as required by law;
(b) If the testator was insane, or otherwise mentally incapable to make a
will, at the time of its execution;
(c) If it was executed under duress, or the influence of fear, or threats;
(d) If it was procured by undue and improper pressure and influence, on
the part of the beneficiary, or of some other person for his benefit;
(e) If the signature of the testator was procured by fraud or trick, and he
did not intend that the instrument should be his will at the time of fixing his
signature thereto.
In the same vein, Article 839 of the New Civil Code reads:
Art. 839: The will shall be disallowed in any of the following cases;
(1) If the formalities required by law have not been complied with;

SPECPRO| RULE 76| 50

(2) If the testator was insane, or otherwise mentally incapable of making a

will, at the time of its execution;
(3) If it was executed through force or under duress, or the influence of
fear, or threats;
(4) If it was procured by undue and improper pressure and influence, on
the part of the beneficiary or of some other person;
(5) If the signature of the testator was procured by fraud;
(6) If the testator acted by mistake or did not intend that the instrument he
signed should be his will at the time of affixing his signature thereto.
These lists are exclusive; no other grounds can serve to disallow a
will. 5 Thus, in a petition to admit a holographic will to probate, the only
issues to be resolved are: (1) whether the instrument submitted is, indeed,
the decedent's last will and testament; (2) whether said will was executed
in accordance with the formalities prescribed by law; (3) whether the
decedent had the necessary testamentary capacity at the time the will was
executed; and, (4) whether the execution of the will and its signing were
the voluntary acts of the decedent. 6
In the case at bench, respondent court held that the holographic will of
Anne Sand was not executed in accordance with the formalities prescribed
by law. It held that Articles 813 and 814 of the New Civil Code, ante, were
not complied with, hence, it disallowed the probate of said will. This is
erroneous.
We reiterate what we held in Abangan vs. Abangan, 40 Phil. 476, 479
(1919), that:
The object of the solemnities surrounding the execution of wills is to close
the door against bad faith and fraud, to avoid substitution of wills and
testaments and to guaranty their truth and authenticity. Therefore, the laws
on this subject should be interpreted in such a way as to attain these
primordial ends. But, on the other hand, also one must not lose sight of the
fact that it is not the object of the law to restrain and curtail the exercise of
the right to make a will. So when an interpretation already given assures
such ends, any other interpretation whatsoever, that adds nothing but
demands more requisites entirely unnecessary, useless and frustrative of
the testator's last will, must be disregarded.

For purposes of probating non-holographic wills, these formal solemnities

include the subscription, attestation, and acknowledgment requirements
under Articles 805 and 806 of the New Civil Code.
In the case of holographic wills, on the other hand, what assures
authenticity is the requirement that they be totally autographic or
handwritten by the testator himself, 7 as provided under Article 810 of the
New Civil Code, thus:
A person may execute a holographic will which must be entirely written,
dated, and signed by the hand of the testator himself. It is subject to no
other form, and may be made in or out of the Philippines, and need not be
witnessed. (Emphasis supplied.)
Failure to strictly observe other formalities will not result in the disallowance
of a holographic will that is unquestionably handwritten by the testator.
A reading of Article 813 of the New Civil Code shows that its requirement
affects the validity of the dispositions contained in the holographic will, but
not its probate. If the testator fails to sign and date some of the
dispositions, the result is that these dispositions cannot be effectuated.
Such failure, however, does not render the whole testament void.
Likewise, a holographic will can still be admitted to probate,
notwithstanding non-compliance with the provisions of Article 814. In the
case of Kalaw vs. Relova 132 SCRA 237 242 (1984), this Court held:
Ordinarily, when a number of erasures, corrections, and interlineations
made by the testator in a holographic Will have not been noted under his
signature, . . . the Will is not thereby invalidated as a whole, but at most
only as respects the particular words erased, corrected or interlined.
Manresa gave an identical commentary when he said "la omission de la
salvedad no anula el testamento, segun la regla de jurisprudencia
establecida en la sentencia de 4 de Abril de 1985." 8 (Citations omitted.)
Thus, unless the unauthenticated alterations, cancellations or insertions
were made on the date of the holographic will or on testator's
signature, 9 their presence does not invalidate the will itself. 10 The lack of
authentication will only result in disallowance of such changes.
It is also proper to note that the requirements of authentication of changes
and signing and dating of dispositions appear in provisions (Articles 813 and
814) separate from that which provides for the necessary conditions for the

SPECPRO| RULE 76| 51

validity of the holographic will (Article 810). The distinction can be traced to
Articles 678 and 688 of the Spanish Civil Code, from which the present
provisions covering holographic wills are taken. They read as follows:
Art. 678: A will is called holographic when the testator writes it himself in
the form and with the requisites required in Article 688.
Art. 688: Holographic wills may be executed only by persons of full age.
In order that the will be valid it must be drawn on stamped paper
corresponding to the year of its execution, written in its entirety by the
testator and signed by him, and must contain a statement of the year,
month and day of its execution.
If it should contain any erased, corrected, or interlined words, the testator
must identify them over his signature.
Foreigners may execute holographic wills in their own language.
This separation and distinction adds support to the interpretation that only
the requirements of Article 810 of the New Civil Code and not those
found in Articles 813 and 814 of the same Code are essential to the
probate of a holographic will.
The Court of Appeals further held that decedent Annie Sand could not
validly dispose of the house and lot located in Cabadbaran, Agusan del
Norte, in its entirety. This is correct and must be affirmed.
As a general rule, courts in probate proceedings are limited to pass only
upon the extrinsic validity of the will sought to be probated. However, in
exceptional instances, courts are not powerless to do what the situation
constrains them to do, and pass upon certain provisions of the will. 11 In the
case at bench, decedent herself indubitably stated in her holographic will
that the Cabadbaran property is in the name of her late father, John H.
Sand (which led oppositor Dr. Jose Ajero to question her conveyance of the
same in its entirety). Thus, as correctly held by respondent court, she
cannot validly dispose of the whole property, which she shares with her
father's other heirs.
IN VIEW WHEREOF, the instant petition is GRANTED. The Decision of the
Court of Appeals in CA-G.R. CV No. 22840, dated March 30, 1992, is
REVERSED and SET ASIDE, except with respect to the invalidity of the
disposition of the entire house and lot in Cabadbaran, Agusan del Norte.

The Decision of the Regional Trial Court of Quezon City, Branch 94 in Sp.
Proc. No. Q-37171, dated November 19, 1988, admitting to probate the
holographic will of decedent Annie Sand, is hereby REINSTATED, with the
above qualification as regards the Cabadbaran property. No costs.
SO ORDERED.

SPECPRO| RULE 76| 52

G.R. No. 169144

January 26, 2011

IN RE: IN THE MATTER OF THE PETITION TO APPROVE THE WILL OF

RUPERTA PALAGANAS WITH PRAYER FOR THE APPOINTMENT OF
SPECIAL ADMINISTRATOR, MANUEL MIGUEL PALAGANAS and
BENJAMIN
GREGORIO
PALAGANAS, Petitioners,
vs.
ERNESTO PALAGANAS, Respondent.
DECISION
ABAD, J.:
This case is about the probate before Philippine court of a will executed
abroad by a foreigner although it has not been probated in its place of
execution.
The Facts and the Case

Meantime, since Rupertas foreign-based siblings, Gloria Villaluz and Sergio,

were on separate occasions in the Philippines for a short visit, respondent
Ernesto filed a motion with the RTC for leave to take their deposition, which
it granted. On April, 13, 2004 the RTC directed the parties to submit their
memorandum on the issue of whether or not Rupertas U.S. will may be
probated in and allowed by a court in the Philippines.
On June 17, 2004 the RTC issued an order: 2 (a) admitting to probate
Rupertas last will; (b) appointing respondent Ernesto as special
administrator at the request of Sergio, the U.S.-based executor designated
in the will; and (c) issuing the Letters of Special Administration to Ernesto.
Aggrieved by the RTCs order, petitioner nephews Manuel and Benjamin
appealed to the Court of Appeals (CA), 3arguing that an unprobated will
executed by an American citizen in the U.S. cannot be probated for the first
time in the Philippines.

On July 29, 2005 the CA rendered a decision, 4 affirming the assailed order
of the RTC,5 holding that the RTC properly allowed the probate of the will,
On November 8, 2001 Ruperta C. Palaganas (Ruperta), a Filipino who
subject to respondent Ernestos submission of the authenticated copies of
became a naturalized United States (U.S.) citizen, died single and childless.
the documents specified in the order and his posting of required bond. The
In the last will and testament she executed in California, she designated her
CA pointed out that Section 2, Rule 76 of the Rules of Court does not
brother, Sergio C. Palaganas (Sergio), as the executor of her will for she
require prior probate and allowance of the will in the country of its
had left properties in the Philippines and in the U.S.
execution, before it can be probated in the Philippines. The present case,
On May 19, 2003 respondent Ernesto C. Palaganas (Ernesto), another said the CA, is different from reprobate, which refers to a will already
brother of Ruperta, filed with the Regional Trial Court (RTC) of Malolos, probated and allowed abroad. Reprobate is governed by different rules or
Bulacan, a petition for the probate of Rupertas will and for his appointment procedures. Unsatisfied with the decision, Manuel and Benjamin came to
as special administrator of her estate. 1 On October 15, 2003, however, this Court.
petitioners Manuel Miguel Palaganas (Manuel) and Benjamin Gregorio
The Issue Presented
Palaganas (Benjamin), nephews of Ruperta, opposed the petition on the
ground that Rupertas will should not be probated in the Philippines but in
The key issue presented in this case is whether or not a will executed by a
the U.S. where she executed it. Manuel and Benjamin added that, assuming
foreigner abroad may be probated in the Philippines although it has not
Rupertas will could be probated in the Philippines, it is invalid nonetheless
been previously probated and allowed in the country where it was executed.
for having been executed under duress and without the testators full
understanding of the consequences of such act. Ernesto, they claimed, is The Courts Ruling
also not qualified to act as administrator of the estate.
Petitioners Manuel and Benjamin maintain that wills executed by foreigners
abroad must first be probated and allowed in the country of its execution
before it can be probated here. This, they claim, ensures prior compliance
with the legal formalities of the country of its execution. They insist that
local courts can only allow probate of such wills if the proponent proves
that: (a) the testator has been admitted for probate in such foreign country,

SPECPRO| RULE 76| 53

(b) the will has been admitted to probate there under its laws, (c) the
probate court has jurisdiction over the proceedings, (d) the law on probate
procedure in that foreign country and proof of compliance with the same,
and (e) the legal requirements for the valid execution of a will.
But our laws do not prohibit the probate of wills executed by foreigners
abroad although the same have not as yet been probated and allowed in
the countries of their execution. A foreign will can be given legal effects in
our jurisdiction. Article 816 of the Civil Code states that the will of an alien
who is abroad produces effect in the Philippines if made in accordance with
the formalities prescribed by the law of the place where he resides, or
according to the formalities observed in his country.6
In this connection, Section 1, Rule 73 of the 1997 Rules of Civil Procedure
provides that if the decedent is an inhabitant of a foreign country, the RTC
of the province where he has an estate may take cognizance of the
settlement of such estate. Sections 1 and 2 of Rule 76 further state that the
executor, devisee, or legatee named in the will, or any other person
interested in the estate, may, at any time after the death of the testator,
petition the court having jurisdiction to have the will allowed, whether the
same be in his possession or not, or is lost or destroyed.
Our rules require merely that the petition for the allowance of a will must
show, so far as known to the petitioner: (a) the jurisdictional facts; (b) the
names, ages, and residences of the heirs, legatees, and devisees of the
testator or decedent; (c) the probable value and character of the property
of the estate; (d) the name of the person for whom letters are prayed; and
(e) if the will has not been delivered to the court, the name of the person
having custody of it. Jurisdictional facts refer to the fact of death of the
decedent, his residence at the time of his death in the province where the
probate court is sitting, or if he is an inhabitant of a foreign country, the
estate he left in such province. 7 The rules do not require proof that the
foreign will has already been allowed and probated in the country of its
execution.

In insisting that Rupertas will should have been first probated and allowed
by the court of California, petitioners Manuel and Benjamin obviously have
in mind the procedure for the reprobate of will before admitting it here. But,
reprobate or re-authentication of a will already probated and allowed in a
foreign country is different from that probate where the will is presented for
the first time before a competent court. Reprobate is specifically governed
by Rule 77 of the Rules of Court. Contrary to petitioners stance, since this
latter rule applies only to reprobate of a will, it cannot be made to apply to
the present case. In reprobate, the local court acknowledges as binding the
findings of the foreign probate court provided its jurisdiction over the
matter can be established.
Besides, petitioners stand is fraught with impractically.1wphi1 If the
instituted heirs do not have the means to go abroad for the probate of the
will, it is as good as depriving them outright of their inheritance, since our
law requires that no will shall pass either real or personal property unless
the will has been proved and allowed by the proper court. 8
Notably, the assailed RTC order of June 17, 2004 is nothing more than an
initial ruling that the court can take cognizance of the petition for probate of
Rupertas will and that, in the meantime, it was designating Ernesto as
special administrator of the estate. The parties have yet to present
evidence of the due execution of the will, i.e. the testators state of mind at
the time of the execution and compliance with the formalities required of
wills by the laws of California. This explains the trial courts directive for
Ernesto to submit the duly authenticated copy of Rupertas will and the
certified copies of the Laws of Succession and Probate of Will of California.
WHEREFORE, the Court DENIES the petition and AFFIRMS the Court of
Appeals decision in CA-G.R. CV 83564 dated July 29, 2005.
SO ORDERED.