required by Rule 75, section 2 of the Rules of
Court;
(2) The alleged copy of the alleged holographic
will did not contain a disposition of property after
death and was not intended to take effect after
death, and therefore it was not a will
(3) The alleged hollographic will itself,and not an
alleged copy thereof, must be produced,
otherwise it would produce no effect, as held in
Gam v. Yap, 104 Phil. 509; and
(4 ) The deceased did not leave any will,
holographic or otherwise, executed and attested
as required by law.
The appellees likewise moved for the
consolidation of the case with another case Sp.
Proc. No, 8275). Their motion was granted by the
court in an order dated April 4, 1977.
On November 13, 1978, following the
consolidation of the cases, the appellees moved
again to dismiss the petition for the probate of the
will. They argued that:
(1) The alleged holographic was not a last will but
merely an instruction as to the management and
improvement of the schools and colleges
founded by decedent Ricardo B. Bonilla; and
(2) Lost or destroyed holographic wills cannot be
proved by secondary evidence unlike ordinary
wills.
IN THE MATTER OF THE PETITION TO
APPROVE THE WILL OF RICARDO B.
BONILLA deceased, MARCELA RODELAS,
petitioner-appellant,
vs.
AMPARO ARANZA, ET AL., oppositors-
appellees, ATTY. LORENZO SUMULONG,
intervenor.
Luciano A. Joson for petitioner-appellant.
Cesar Paralejo for oppositor-appellee.
RELOVA, J.:
This case was certified to this Tribunal by the
Court of Appeals for final determination pursuant
to Section 3, Rule 50 of the Rules of Court.
As found by the Court of Appeals:
... On January 11, 1977, appellant filed a petition
with the Court of First Instance of Rizal for the
probate of the holographic will of Ricardo B.
Bonilla and the issuance of letters testamentary
in her favor. The petition, docketed as Sp. Proc.
No. 8432, was opposed by the appellees Amparo
Aranza Bonilla, Wilferine Bonilla Treyes Expedita
Bonilla Frias and Ephraim Bonilla on the following
grounds:
(1) Appellant was estopped from claiming that the
deceased left a will by failing to produce the will
within twenty days of the death of the testator as
Appellant's motion for reconsideration was
denied. Hence, an appeal to the Court of Appeals
in which it is contended that the dismissal of
appellant's petition is contrary to law and well-
settled jurisprudence.
On July 7, 1980, appellees moved to forward the
case to this Court on the ground that the appeal
does not involve question of fact and alleged that
the trial court committed the following assigned
errors:
I. THE LOWER COURT ERRED IN HOLDING
THAT A LOST HOLOGRAPHIC WILL MAY NOT
BE PROVED BY A COPY THEREOF;
II. THE LOWER COURT ERRED IN HOLDING
THAT THE DECEDENT HAS DISCARDED
BEFORE HIS DEATH THE MISSING
HOLOGRAPHIC WILL;
III. THE LOWER COURT ERRED IN
DISMISSING APPELLANT'S WILL.
The only question here is whether a holographic
will which was lost or cannot be found can be
proved by means of a photostatic copy. Pursuant
to Article 811 of the Civil Code, probate of
holographic wills is the allowance of the will by
the court after its due execution has been proved.
The probate may be uncontested or not. If
uncontested, at least one Identifying witness is
required and, if no witness is available, experts
may be resorted to. If contested, at least three
Upon opposition of the appellant, the motion to
dismiss was denied by the court in its order of
February 23, 1979.
The appellees then filed a motion for
reconsideration on the ground that the order was
contrary to law and settled pronouncements and
rulings of the Supreme Court, to which the
appellant in turn filed an opposition. On July 23,
1979, the court set aside its order of February 23,
1979 and dismissed the petition for the probate of
the will of Ricardo B. Bonilla. The court said:
... It is our considered opinion that once the
original copy of the holographic will is lost, a copy
thereof cannot stand in lieu of the original.
In the case of Gam vs. Yap, 104 Phil. 509, 522,
the Supreme Court held that 'in the matter of
holographic wills the law, it is reasonable to
suppose, regards the document itself as the
material proof of authenticity of said wills.
MOREOVER, this Court notes that the alleged
holographic will was executed on January 25,
1962 while Ricardo B. Bonilla died on May 13,
1976. In view of the lapse of more than 14 years
from the time of the execution of the will to the
death of the decedent, the fact that the original of
the will could not be located shows to our mind
that the decedent had discarded before his death
his allegedly missing Holographic Will.
of the deceased can be determined by the
probate court.
WHEREFORE, the order of the lower court dated
October 3, 1979, denying appellant's motion for
reconsideration dated August 9, 1979, of the
Order dated July 23, 1979, dismissing her
petition to approve the will of the late Ricardo B.
Bonilla, is hereby SET ASIDE.
SO ORDERED.
FEDERICO AZAOLA, petitioner-appellant,
vs.
CESARIO SINGSON, oppositor-appellee.
F. Lavides and L.B. Alcuaz for appellant.
Vicente J. Cuna and P.S. Singson for appellee.
REYES, J.B.L., J.:
This appeal, taken on points of law from a
decision rendered on 15 January 1958 by the
Court of First Instance of Quezon City in its
Special Proceedings No. Q-2640, involves the
determination of the quantity of evidence required
for the probate of a holographic will.
The established facts are thus summarized in the
decision appealed from (Rec. App. pp. 22-24):
"Briefly speaking, the following facts were
established by the petitioner; that on September
9, 1957, Fortunata S. Vda. de Yance died at 13
Luskot, Quezon City, known to be the last
Identifying witnesses are required. However, if
the holographic will has been lost or destroyed
and no other copy is available, the will can not be
probated because the best and only evidence is
the handwriting of the testator in said will. It is
necessary that there be a comparison between
sample handwritten statements of the testator
and the handwritten will. But, a photostatic copy
or xerox copy of the holographic will may be
allowed because comparison can be made with
the standard writings of the testator. In the case
of Gam vs. Yap, 104 PHIL. 509, the Court ruled
that "the execution and the contents of a lost or
destroyed holographic will may not be proved by
the bare testimony of witnesses who have seen
and/or read such will. The will itself must be
presented; otherwise, it shall produce no effect.
The law regards the document itself as material
proof of authenticity." But, in Footnote 8 of said
decision, it says that "Perhaps it may be proved
by a photographic or photostatic copy. Even a
mimeographed or carbon copy; or by other
similar means, if any, whereby the authenticity of
the handwriting of the deceased may be
exhibited and tested before the probate court,"
Evidently, the photostatic or xerox copy of the lost
or destroyed holographic will may be admitted
because then the authenticity of the handwriting
counsel admitted that the holographic will was
handed to him by the testatrix. "apparently it must
have been written by her" (t.s.n., p. 11). However,
on page 16 on the same transcript of the
stenographic notes, when the same witness was
asked by counsel if he was familiar with the
penmanship and handwriting of the deceased
Fortunata Vda. de Yance, he answered positively
in the affirmative and when he was asked again
whether the penmanship referred to in the
previous answer as appearing in the holographic
will (Exh. C) was hers (testatrix'), he answered, "I
would definitely say it is hers"; that it was also
established in the proceedings that the assessed
value of the property of the deceased in Luskot,
Quezon City, is in the amount of P7,000.00.
The opposition to the probate was on the ground
that (1) the execution of the will was procured by
undue and improper pressure and influence on
the part of the petitioner and his wife, and (2) that
the testatrix did not seriously intend the
instrument to be her last will, and that the same
was actually written either on the 5th or 6th day
of August 1957 and not on November 20, 1956
as appears on the will.
The probate was denied on the ground that under
Article 811 of the Civil Code, the proponent must
present three witnesses who could declare that
the will and the signature are in the writing of the
residence of said testatrix; that Francisco Azaola,
petitioner herein for probate of the holographic
will, submitted the said holographic will (Exh. C)
whereby Maria Milagros Azaola was made the
sole heir as against the nephew of deceased
Cesario Singson; that witness Francisco Azaola
testified that he saw the holographic will (Exh. C)
one month, more or less, before the death of the
testatrix, as the same was handed to him and his
wife; that the witness testified also that he
recognized all the signatures appearing in the
holographic will (Exh. C) as the handwriting of the
testatrix and to reinforce said statement, witness
presented the mortgage (Exh. E), the special
power of the attorney (Exh. F), and the general
power of attorney (Exh. F-1), besides the deeds
of sale (Exhs. G and G-1) including an affidavit
(Exh. G-2), and that there were further exhibited
in court two residence certificates (Exhs. H and
H-1) to show the signatures of the testatrix, for
comparison purposes; that said witness, Azaola,
testified that the penmanship appearing in the
aforesaid documentary evidence is in the
handwriting of the testatrix as well as the
signatures appearing in the aforesaid
documentary evidence is in the handwriting of the
testatrix as well as the signatures appearing
therein are the signatures of the testatrix; that
said witness, in answer to a question of his
not required to produce more than one witness;
but even if the genuineness of the holographic
will were contested, we are of the opinion that
Article 811 of our present Civil Code can not be
interpreted as to require the compulsory
presentation of three witnesses to identify the
handwriting of the testator, under penalty of
having the probate denied. Since no witness may
have been present at the execution of a
holographic will, none being required by law (Art.
810, new Civil Code), it becomes obvious that the
existence of witness possessing the requisite
qualifications is a matter beyond the control of
the proponent. For it is not merely a question of
finding and producing any three witnesses; they
must be witnesses "who know the handwriting
and signature of the testator" and who can
declare (truthfully, of course, even if the law does
not so express) "that the will and the signature
are in the handwriting of the testator". There may
be no available witness of the testator's hand; or
even if so familiarized, the witnesses may be
unwilling to give a positive opinion. Compliance
with the rule of paragraph 1 of Article 811 may
thus become an impossibility. That is evidently
the reason why the second paragraph of Article
811 prescribes that
testatrix, the probate being contested; and
because the lone witness presented by the
proponent "did not prove sufficiently that the body
of the will was written in the handwriting of the
testatrix."
The proponent appealed, urging: first, that he
was not bound to produce more than one witness
because the will's authenticity was not
questioned; and second, that Article 811 does not
mandatorily require the production of three
witnesses to identify the handwriting and
signature of a holographic will, even if its
authenticity should be denied by the adverse
party.
Article 811 of the Civil Code of the Philippines is
to the following effect:
ART. 811. In the probate of a holographic will, it
shall be necessary that at least one witness who
knows the handwriting and signature of the
testator explicitly declare that the will and the
signature are in the handwriting of the testator. If
the will is contested, at least three of such
witnesses shall be required.
In the absence of any competent witnesses
referred to in the preceding paragraph, and if the
court deems it necessary, expert testimony may
be resorted to. (691a).
We agree with the appellant that since the
authenticity of the will was not contested, he was
law deems essential is that the Court should be
convinced of the will's authenticity. Where the
prescribed number of witnesses is produced and
the court is convinced by their testimony that the
ill is genuine, it may consider it unnecessary to
call for expert evidence. On the other hand, if no
competent witness is available, or none of those
produced is convincing, the Court may still, and
in fact it should, resort to handwriting experts.
The duty of the Court, in fine, is to exhaust all
available lines of inquiry, for the state is as much
interested as the proponent that the true intention
of the testator be carried into effect.
Commenting on analogous provisions of Article
691 of the Spanish Civil Code of 1889, the noted
Commentator, Mucuis Scaevola (Vol. 12, 2nd
Ed., p.421), sagely remarks:
La manera como esta concebida la redaccion del
ultimo apartado de dicho precepto induce la
conclusion de que siempre o por lo menos, en la
mayor parte de los casos, el Juez debe acudir al
criterio pericial para que le ilustre acerca de la
autenticidad del testamento olografo, aunque ya
esten insertas en los autos del expediente las
declaraciones testificales. La prudencia con que
el Juez debe de proceder en resoluciones de
transcendencia asi lo exige, y la indole delicada y
peligrosa del testamento olografo lo hace
in the absence of any competent witness referred
to in the preceding paragraph, and if the court
deems it necessary, expert testimony may be
resorted to.
As can be seen, the law foresees the possibility
that no qualified witness may be found (or what
amounts to the same thing, that no competent
witness may be willing to testify to the
authenticity of the will), and provides for resort to
expert evidence to supply the deficiency.
It may be true that the rule of this article
(requiring that three witnesses be presented if the
will is contested and only one if no contest is had)
was derived from the rule established for ordinary
testaments (cf. Cabang vs. Delfinado, 45 Phil.,
291; Tolentino vs. Francisco, 57 Phil., 742). But it
can not be ignored that the requirement can be
considered mandatory only in the case of
ordinary testaments, precisely because the
presence of at least three witnesses at the
execution of ordinary wills is made by law
essential to their validity (Art. 805). Where the will
is holographic, no witness need be present (Art.
10), and the rule requiring production of three
witnesses must be deemed merely permissive if
absurd results are to be avoided.
Again, under Article 811, the resort to expert
evidence is conditioned by the words "if the Court
deem it necessary", which reveal that what the
expresses dissatisfaction with the testimony of
the lay witnesses.
Our conclusion is that the rule of the first
paragraph of Article 811 of the Civil Code is
merely directory and is not mandatory.
Considering, however, that this is the first
occasion in which this Court has been called
upon to construe the import of said article, the
interest of justice would be better served, in our
opinion, by giving the parties ample opportunity
to adduce additional evidence, including expert
witnesses, should the Court deem them
necessary.
In view of the foregoing, the decision appealed
from is set aside, and the records ordered
remanded to the Court of origin, with instructions
to hold a new trial in conformity with this opinion.
But evidence already on record shall not be
retaken. No costs.
necesario para mayor garantia de todos los
interes comprometidos en aquel.
En efecto, el cotejo pericial de letras puede ser
una confirmacion facultativa del dicho profano de
los testigos y un modo de desvanecer las ultimas
dudas que pudieran ocurrir al Juez acerca de la
autenticidad que trata de averigaur y declarar.
Para eso se ha escrito la frase del citado ultimo
apartado, (siempre que el Juez lo estime
conveniente), haya habido o no testigos y
dudaran o no estos respecto de los extremos por
que son preguntados.
El arbitrio judicial en este caso debe formarse
con independencia de los sucesos y de su
significacion, para responder debidamente de las
resoluciones que haya de dictar.
And because the law leaves it to the trial court if
experts are still needed, no unfavourable
inference can be drawn from a party's failure to
offer expert evidence, until and unless the court