FIRST DIVISION nito, ay pagpapatutuo na ipinakilala ipinaalam at ipinahayag sa amin ni
Isabel Gabriel na ang kasulatang ito na binubuo ng Limang Dahon (Five
G.R. No. L-37453 May 25, 1979
RIZALINA GABRIEL GONZALES, petitioner,
vs.
HONORABLE COURT OF APPEALS and LUTGARDA SANTIAGO, respondents.
Francisco D. Rilloraza, Jr. for petitioners.
Angel A. Sison for private respondent.
GUERRERO, J.:
This is a petition for review of the decision of the Court of Appeals, First
Division, 1 promulgated on May 4, 1973 in CA G.R. No. 36523-R which reversed the decision
of the Court of First Instance of Rizal dated December 15, 1964 and allowed the probate of
the last will and testament of the deceased Isabel Gabriel. *
It appears that on June 24, 1961, herein private respondent Lutgarda Santiago filed a petition
with the Court of First Instance of Rizal docketed as Special Proceedings No. 3617, for the
probate of a will alleged to have been executed by the deceased Isabel Gabriel and
designating therein petitioner as the principal beneficiary and executrix.
There is no dispute in the records that the late Isabel Andres Gabriel died as a widow and
without issue in the municipality of Navotas, province of Rizal her place of residence, on June
7, 1961 at the age of eighty-five (85), having been born in 1876. It is likewise not controverted
that herein private respondent Lutgarda Santiago and petitioner Rizalina Gabriel Gonzales
are nieces of the deceased, and that private respondent, with her husband and children, lived
with the deceased at the latters residence prior an- d up to the time of her death.
The will submitted for probate, Exhibit "F", which is typewritten and in Tagalog, appears to
have been executed in Manila on the 15th day of April, 1961, or barely two (2) months prior to
the death of Isabel Gabriel. It consists of five (5) pages, including the pages whereon the
attestation clause and the acknowledgment of the notary public were written. The signatures
of the deceased Isabel Gabriel appear at the end of the will on page four and at the left
margin of all the pages. The attestation clause, which is found on page four, reads as follows:
PATUNAY NG MGA SAKSI
Kaming mga nakalagdang mga saksi o testigo na ang aming mga tinitirahan
ay nakasulat sa gawing kanan at kahilira ng aming mga pangalan sa ibaba
Pages) pati na ang dahong ito, na siya niyang TESTAMENTO AT HULING
HABILIN, ngayong ika 15 ng Abril, 1961, ay nilagdaan ng nasabing testadora
na si Isabel Gabriel ang nasabing testamento sa ibaba o ilalim ng kasulatan
na nasa ika apat na dahon (page four) at nasa itaas ng patunay naming ito,
at sa kaliwang panig ng lahat at bawat dahon (and on the left hand margin of
each and every page), sa harap ng lahat at bawat isa sa amin, at kami
namang mga saksi ay lumagda sa harap ng nasabing testadora, at sa harap
ng lahat at bawat isa sa amin, sa ilalim ng patunay ng mga saksi at sa
kaliwang panig ng lahat at bawa't dahon ng testamentong ito.
At the bottom thereof, under the heading "Pangalan", are written the signatures of Matilde D.
Orobia, Celso D. Gimpaya and Maria R. Gimpaya, and opposite the same, under the heading
"Tirahan", are their respective places of residence, 961 Highway 54, Philamlife, for Miss
Orobia, and 12 Dagala St., Navotas, Rizal, for the two Gimpayas. Their signatures also
appear on the left margin of all the other pages. The WW is paged by typewritten words as
follows: "Unang Dahon" and underneath "(Page One)", "Ikalawang Dahon" and underneath
"(Page Two)", etc., appearing at the top of each page.
The will itself provides that the testatrix desired to be buried in the Catholic Cemetery of
Navotas, Rizal in accordance with the rites of the Roman Catholic Church, all expenses to be
paid from her estate; that all her obligations, if any, be paid; that legacies in specified
amounts be given to her sister, Praxides Gabriel Vda. de Santiago, her brother Santiago
Gabriel, and her nephews and nieces, Benjamin, Salud, Rizalina (herein petitioner), Victoria,
Ester, Andres, all surnamed Gabriel, and Evangeline, Rudyardo Rosa, Andrea, Marcial,
Numancia, Verena an surnamed Santiago. To herein private respondent Lutgarda Santiago,
who was described in the will by the testatrix as "aking mahal na pamangkin na aking
pinalaki, inalagaan at minahal na katulad ng isang tunay na anak" and named as universal
heir and executor, were bequeathed all properties and estate, real or personal already
acquired, or to be acquired, in her testatrix name, after satisfying the expenses, debts and
legacies as aforementioned.
The petition was opposed by Rizalina Gabriel Gonzales, herein petitioner, assailing the
document purporting to be the will of the deceased on the following grounds:
1. that the same is not genuine; and in the alternative
2. that the same was not executed and attested as required by law;
3. that, at the time of the alleged execution of the purported wilt the decedent
lacked testamentary capacity due to old age and sickness; and in the second
alternative
 4. That the purported WW was procured through undue and improper
pressure and influence on the part of the principal beneficiary, and/or of
some other person for her benefit.
Lutgarda Santiago filed her Answer to the Opposition on February 1, 1962. After trial, the
court a quo rendered judgment, the summary and dispositive portions of which read:
Passing in summary upon the grounds advanced by the oppositor, this Court
finds:
1. That there is no iota of evidence to support the contentio that the
purported will of the deceased was procured through undue and improper
pressure and influence on the part of the petitioner, or of some other person
for her benefit;
2. That there is insufficient evidence to sustain the contention that at the time
of the alleged execution of the purported will, the deceased lacked
testamentary capacity due to old age and sickness;
3. That sufficient and abundant evidence warrants conclusively the fact that
the purported will of the deceased was not executed and attested as required
by law;
4. That the evidence is likewise conclusive that the document presented for
probate, Exhibit 'F' is not the purported win allegedly dictated by the
deceased, executed and signed by her, and attested by her three attesting
witnesses on April 15, 1961.
WHEREFORE, Exhibit "F", the document presented for probate as the last
wig and testament of the deceased Isabel Gabriel is here by DISALLOWED.
From this judgment of disallowance, Lutgarda Santiago appealed to respondent Court,
hence, the only issue decided on appeal was whether or not the will in question was
executed and attested as required by law. The Court of Appeals, upon consideration of the
evidence adduced by both parties, rendered the decision now under review, holding that the
will in question was signed and executed by the deceased Isabel Gabriel on April 15, 1961 in
the presence of the three attesting witnesses, Matilde Orobia, Celso Gimpaya and Maria
Gimpaya, signing and witnessing the document in the presence of the deceased and of each
other as required by law, hence allow ed probate.
Oppositor Rizalina Gabriel Gonzales moved for reconsideration 3 of the aforesaid decision
and such motion was opposed 4 by petitioner-appellant Lutgarda Santiago. Thereafter.
parties submitted their respective Memoranda, 5 and on August 28, 1973, respondent Court,
Former Special First Division, by Resolution 6 denied the motion for reconsideration stating
that:
The oppositor-appellee contends that the preponderance of evidence shows
that the supposed last wig and testament of Isabel Gabriel was not executed
in accordance with law because the same was signed on several occasions,
that the testatrix did not sign the will in the presence of all the instrumental
witnesses did not sign the will in the presence of each other.
The resolution of the factual issue raised in the motion for reconsideration
hinges on the appreciation of the evidence. We have carefully re-examined
the oral and documentary evidence of record, There is no reason to alter the
findings of fact in the decision of this Court sought to be set aside. 7
In her petition before this Court, oppositor Rizalina Gabriel Gonzales contends that
respondent Court abused its discretion and/or acted without or in excess of its jurisdiction in
reverssing the findings of fact and conclusions of the trial court. The Court, after deliberating
on the petition but without giving due course resolved, in the Resolution dated Oct. 11, 1973
to require the respondents to comment thereon, which comment was filed on Nov. 14, 1973.
Upon consideration of the allegations, the issues raised and the arguments adduced in the
petition, as well as the Comment 8 of private respondent thereon, We denied the petition by
Resolution on November 26, 1973, 9 the question raised being factual and for insufficient
showing that the findings of fact by respondent Court were unsupported by substantial
evidence.
Subsequently, or on December 17, 1973, petitioner Rim Gabriel Goes fried a Motion for
Reconsideration 10 which private respondent answered by way of her Comment or
Opposition 11 filed on January 15, 1974. A Reply and Rejoinder to Reply followed. Finally, on
March 27, 1974, We resolved to give due course to the petition.
The petitioner in her brief makes the following assignment of errors:
I. The respondent Court of Appeals erred in holding that the document, Exhibit "F" was
executed and attested as required by law when there was absolutely no proof that the three
instrumental witnesses were credible witness
II. The Court of Appeals erred in reversing the finding of the lower court that the preparation
and execution of the win Exhibit "F", was unexpected and coincidental.
III. The Court of Appeals erred in finding that Atty, Paraiso was not previously furnished with
the names and residence certificates of the witnesses as to enable him to type such data into
the document Exhibit "F".
IV. The Court of Appeals erred in holding that the fact that the three typewritten lines under
the typewritten words "Pangalan" and "Tinitirahan" were left blank shows beyond cavil that
the three attesting witnesses were all present in the same occasion.
V. The Court of Appeals erred in reversing the trial court's finding that it was incredible that
Isabel Gabriel could have dictated the wilt Exhibit "F , without any note or document, to Atty.
Paraiso.
VI. The Court of Appeals erred in reversing the finding of the trial court that Matilde Orobia
was not physically present when the Will Exhibit "F" was allegedly signed on April 15, 1961
by the deceased Isabel Gabriel and the other witnesses Celso Gimpaya and Maria Gimpaya.
VII. The Court of Appeals erred in holding that the trial court gave undue importance to the
picture takings as proof that the win was improperly executed.
VIII. The Court of Appeals erred in holding that the grave contradictions, evasions, and
misrepresentations of witnesses (subscribing and notary) presented by the petitioner had
been explained away, and that the trial court erred in rejecting said testimonies.
IX. The Court of Appeals acted in excess of its appellate jurisdiction or has so far departed
from the accepted and usual course of judicial proceedings, as to call for an exercise of the
power of supervision.
X. The Court of Appeals erred in reversing the decision of the trial court and admitting to
probate Exhibit "F", the alleged last will and testament of the deceased Isabel Gabriel.
It will be noted from the above assignments of errors that the same are substantially factual in
character and content. Hence, at the very outset, We must again state the oft-repeated and
well-established rule that in this jurisdiction, the factual findings of the Court of Appeals are
not reviewable, the same being binding and conclusive on this Court. This rule has been
stated and reiterated in a long line of cases enumerated in Chan vs. CA (L-27488, June 30,
1970, 33 SCRA 737, 743) 12 and Tapas vs. CA (L-22202, February 27; 1976, 69 SCRA
393), 13 and in the more recent cases of Baptisia vs. Carillo and CA (L32192, July 30, 1976,
72 SCRA 214, 217) and Vda. de Catindig vs. Heirs of Catalina Roque (L-25777, November
26, 1976, 74 SCRA 83, 88). In the case of Chan vs. CA, this Court said:
... from Guico v. Mayuga, a 1936 decision, the opinion being penned by the then Justice
Recto, it has been well-settled that the jurisdiction of tills Court in cases brought to us from
the Court of Appeals is limited to reviewing and revising the errors of law imputed to it, its
findings of fact being conclusive. More specifically, in a decision exactly a month later, this
Court, speaking through the then Justice Laurel, it was held that the same principle is
applicable, even if the Court of Appeals was in disagreement with the lower court as to the
weight of the evidence with a consequent reversal of its findings of fact ...
Stated otherwise, findings of facts by the Court of Appeals, when supported by substantive
evidence are not reviewable on appeal by certiorari. Said findings of the appellate court are
final and cannot be disturbed by Us particularly because its premises are borne out by the
record or based upon substantial evidence and what is more, when such findings are correct.
Assignments of errors involving factual issues cannot be ventilated in a review of the decision
of the Court of Appeals because only legal questions may be raised. The Supreme Court is
not at liberty to alter or modify the facts as set forth in the decision of the Court of Appeals
sought to be reversed. Where the findings of the Court of Appeals are contrary to those of the
trial court, a minute scrutiny by the Supreme Court is in order, and resort to duly-proven
evidence becomes necessary. The general rule We have thus stated above is not without
some recognized exceptions.
Having laid down the above legal precepts as Our foundation, We now proceed to consider
petitioner's assignments of errors.
Petitioner, in her first assignment, contends that the respondent Court of Appeals erred in
holding that the document, Exhibit "F", was executed and attested as required by law when
there was absolutely no proof that the three instrumental witnesses were credible witnesses.
She argues that the require. ment in Article 806, Civil Code, that the witnesses must be
credible is an absolute requirement which must be complied with before an alleged last will
and testament may be admitted to probate and that to be a credible witness, there must be
evidence on record that the witness has a good standing in his community, or that he is
honest and upright, or reputed to be trustworthy and reliable. According to petitioner, unless
the qualifications of the witness are first established, his testimony may not be favorably
considered. Petitioner contends that the term "credible" is not synonymous with "competent"
for a witness may be competent under Article 820 and 821 of the Civil Code and still not be
credible as required by Article 805 of the same Code. It is further urged that the term
"credible" as used in the Civil Code should receive the same settled and well- known
meaning it has under the Naturalization Law, the latter being a kindred legislation with the
Civil Code provisions on wigs with respect to the qualifications of witnesses.
We find no merit to petitioner's first assignment of error. Article 820 of the Civil Code provides
the qualifications of a witness to the execution of wills while Article 821 sets forth the
disqualification from being a witness to a win. These Articles state:
Art. 820. Any person of sound mind and of the age of eighteen years or
more, and not blind, deaf or dumb, and able to read and write, may be a
witness to the execution of a will mentioned in article 806 of this Code. "Art.
821. The following are disqualified from being witnesses to a will:
(1) Any person not domiciled in the Philippines,
(2) Those who have been convicted of falsification of a document, perjury or
false testimony.
Under the law, there is no mandatory requirement that the witness testify initially or at any
time during the trial as to his good standing in the community, his reputation for
trustworthythiness and reliableness, his honesty and uprightness in order that his testimony
may be believed and accepted by the trial court. It is enough that the qualifications
enumerated in Article 820 of the Civil Code are complied with, such that the soundness of his
mind can be shown by or deduced from his answers to the questions propounded to him, that
his age (18 years or more) is shown from his appearance, testimony , or competently proved
otherwise, as well as the fact that he is not blind, deaf or dumb and that he is able to read
and write to the satisfaction of the Court, and that he has none of the disqualifications under
Article 821 of the Civil Code. We reject petitioner's contention that it must first be established
in the record the good standing of the witness in the community, his reputation for
trustworthiness and reliableness, his honesty and uprightness, because such attributes are
presumed of the witness unless the contrary is proved otherwise by the opposing party.
We also reject as without merit petitioner's contention that the term "credible" as used in the
Civil Code should be given the same meaning it has under the Naturalization Law where the
law is mandatory that the petition for naturalization must be supported by two character
witnesses who must prove their good standing in the community, reputation for
trustworthiness and reliableness, their honesty and uprightness. The two witnesses in a
petition for naturalization are character witnesses in that being citizens of the Philippines,
they personally know the petitioner to be a resident of the Philippines for the period of time
required by the Act and a person of good repute and morally irreproachable and that said
petitioner has in their opinion all the qualifications necessary to become a citizen of the
Philippines and is not in any way disqualified under the provisions of the Naturalization Law
(Section 7, Commonwealth Act No. 473 as amended).
In probate proceedings, the instrumental witnesses are not character witnesses for they
merely attest the execution of a will or testament and affirm the formalities attendant to said
execution. And We agree with the respondent that the rulings laid down in the cases cited by
petitioner concerning character witnesses in naturalization proceedings are not applicable to
instrumental witnesses to wills executed under the Civil Code of the Philippines.
In the case at bar, the finding that each and everyone of the three instrumental witnesses,
namely, Matilde Orobia, Celso Gimpaya and Maria Gimpaya, are competent and credible is
satisfactorily supported by the evidence as found by the respondent Court of Appeals, which
findings of fact this Tribunal is bound to accept and rely upon. Moreover, petitioner has not
pointed to any disqualification of any of the said witnesses, much less has it been shown that
anyone of them is below 18 years of age, of unsound mind, deaf or dumb, or cannot read or
write.
It is true that under Article 805 of the New Civil Code, every will, other than a holographic will,
must be subscribed at the end thereof by the testator himself or by the testator's name written
by some other person in his presence, and by his express direction, and attested and
subscribed by three or more credible witnesses in the presence of the testator and of one
another, While the petitioner submits that Article 820 and 821 of the New Civil Code speak of
the competency of a witness due to his qualifications under the first Article and none of the
disqualifications under the second Article, whereas Article 805 requires the attestation of
three or more credible witnesses, petitioner concludes that the term credible requires
something more than just being competent and, therefore, a witness in addition to
being competent under Articles 820 and 821 must also be a credible witness under Article
805.
Petitioner cites American authorities that competency and credibility of a witness are not
synonymous terms and one may be a competent witness and yet not a credible one. She
exacerbates that there is no evidence on record to show that the instrumental witnesses are
credible in themselves, that is, that they are of good standing in the community since one was
a family driver by profession and the second the wife of the driver, a housekeeper. It is true
that Celso Gimpaya was the driver of the testatrix and his wife Maria Gimpaya, merely a
housekeeper, and that Matilde Orobia was a piano teacher to a grandchild of the testatrix But
the relation of employer and employee much less the humble or financial position of a person
do not disqualify him to be a competent testamentary witness. (Molo Pekson and Perez
Nable vs. Tanchuco, et al., 100 Phil. 344; Testate Estate of Raymundo, Off. Gaz., March
18,1941, p. 788).
Private respondent maintains that the qualifications of the three or more credible witnesses
mentioned in Article 805 of the Civil Code are those mentioned in Article 820 of the same
Code, this being obvious from that portion of Article 820 which says "may be Q witness to the
execution of a will mentioned in Article 805 of this Code," and cites authorities that the word
"credible" insofar as witnesses to a will are concerned simply means " competent." Thus, in
the case of Suntay vs. Suntay, 95 Phil. 500, the Supreme Court held that "Granting that a will
was duly executed and that it was in existence at the time of, and not revoked before, the
death of the testator, still the provisions of the lost wig must be clearly and distinctly proved
by at least two credible witnesses. 'Credible witnesses' mean competent witnesses and not
those who testify to facts from or upon hearsay. " emphasis supplied).
In Molo Pekson and Perez Nable vs. Tanchuco, et al., 100 Phil. 344, the Supreme Court held
that "Section 620 of the same Code of Civil Procedure provides that any person of sound
mind, and of the age of eighteen years or more, and not blind, deaf, or dumb and able to read
and write, may be a witness to the execution of a will. This same provision is reproduced in
our New Civil Code of 1950, under Art. 820. The relation of employer and employee, or being
a relative to the beneficiary in a win, does not disqualify one to be a witness to a will. The
main qualification of a witness in the attestation of wills, if other qualifications as to age,
mental capacity and literacy are present, is that said witness must be credible, that is to say,
his testimony may be entitled to credence. There is a long line of authorities on this point, a
few of which we may cite:
A 'credible witness is one who is not is not to testify by mental incapacity,
crime, or other cause. Historical Soc of Dauphin County vs. Kelker 74 A. 619,
226 Pix 16, 134 Am. St. Rep. 1010. (Words and Phrases, Vol. 10, p. 340).
As construed by the common law, a 'credible witness' to a will means a
'competent witness.' Appeal of Clark, 95 A. 517, 114 Me. 105, Ann. Cas.
1917A, 837. (lbid, p. 341).
Expression 'credible witness' in relation to attestation of wins means
'competent witness that is, one competent under the law to testify to fact of
 execution of will. Vernon's Ann. Civ St. art. 8283. Moos vs. First State Bank
of Uvalde, Tex . Civ. App. 60 S.W. 2nd 888, 889. (Ibid, p. 342)
The term 'credible', used in the statute of wills requiring that a will shall be
attested by two credible witnesses means competent; witnesses who, at the
time of attesting the will, are legally competent to testify, in a court of justice,
to the facts attested by subscribing the will, the competency being
determined as of the date of the execution of the will and not of the timr it is
offered for probate, Smith vs. Goodell 101 N.E. 255, 256, 258 111. 145.
(Ibid.)
Credible witnesses as used in the statute relating to wills, means competent
witnesses that is, such persons as are not legally disqualified from
testifying in courts of justice, by reason of mental incapacity, interest, or the
commission of crimes, or other cause excluding them from testifying
generally, or rendering them incompetent in respect of the particular subject
matter or in the particular suit. Hill vs. Chicago Title & Trust co 152 N.E. 545,
546, 322 111. 42. (Ibid. p, 343)
In the strict sense, the competency of a person to be an instrumental witness to a will is
determined by the statute, that is Art. 820 and 821, Civil Code, whereas his credibility
depends On the appreciation of his testimony and arises from the belief and conclusion of the
Court that said witness is telling the truth. Thus, in the case of Vda. de Aroyo v. El Beaterio
del Santissimo Rosario de Molo, No. L-22005, May 3, 1968, the Supreme Court held and
ruled that: "Competency as a witness is one thing, and it is another to be a credible witness,
so credible that the Court must accept what he says. Trial courts may allow a person to testify
as a witness upon a given matter because he is competent, but may thereafter decide
whether to believe or not to believe his testimony." In fine, We state the rule that the
instrumental witnesses in Order to be competent must be shown to have the qualifications
under Article 820 of the Civil Code and none of the disqualifications under Article 821 and for
their testimony to be credible, that is worthy of belief and entitled to credence, it is not
mandatory that evidence be first established on record that the witnesses have a good
standing in the community or that they are honest and upright or reputed to be trustworthy
and reliable, for a person is presumed to be such unless the contrary is established
otherwise. In other words, the instrumental witnesses must be competent and their
testimonies must be credible before the court allows the probate of the will they have
attested. We, therefore, reject petitioner's position that it was fatal for respondent not to have
introduced prior and independent proof of the fact that the witnesses were "credible
witnesses that is, that they have a good standing in the community and reputed to be
trustworthy and reliable.
Under the second, third, fourth, fifth, sixth, seventh and eighth assignments of errors,
petitioner disputes the findings of fact of the respondent court in finding that the preparation
and execution of the will was expected and not coincidental, in finding that Atty. Paraiso was
not previously furnished with the names and residence certificates of the witnesses as to
enable him to type such data into the document Exhibit "F", in holding that the fact that the
three typewritten lines under the typewritten words "pangalan" and "tinitirahan" were left blank
shows beyond cavil that the three attesting witnesses were all present in the same occasion,
in holding credible that Isabel Gabriel could have dictated the will without note or document to
Atty. Paraiso, in holding that Matilde Orobia was physically present when the will was signed
on April 15, 1961 by the deceased Isabel Gabriel and the other witnesses Celso Gimpaya
and Maria Gimpaya, in holding that the trial court gave undue importance to the picture
takings as proof that the will was improperly executed, and in holding that the grave
contradictions, evasions and misrepresentations of the witnesses (subscribing and notary)
presented by the petitioner had been explained away.
Since the above errors are factual We must repeat what We have previously laid down that
the findings of fact of the appellate court are binding and controlling which We cannot review,
subject to certain exceptions which We win consider and discuss hereinafter. We are
convinced that the appellate court's findings are sufficiently justified and supported by the
evidence on record. Thus, the alleged unnaturalness characterizing the trip of the testatrix to
the office of Atty. Paraiso and bringing all the witnesses without previous appointment for the
preparation and execution of the win and that it was coincidental that Atty. Paraiso was
available at the moment impugns the finding of the Court of Appeals that although Atty.
Paraiso admitted the visit of Isabel Gabriel and of her companions to his office on April 15,
1961 was unexpected as there was no prior appointment with him, but he explained that he
was available for any business transaction on that day and that Isabel Gabriel had earlier
requested him to help her prepare her will. The finding of the appellate court is amply based
on the testimony of Celso Gimpaya that he was not only informed on the morning of the day
that he witnessed the will but that it was the third time when Isabel Gabriel told him that he
was going to witness the making of her will, as well as the testimony of Maria Gimpaya that
she was called by her husband Celso Gimpaya to proceed to Isabel Gabriel's house which
was nearby and from said house, they left in a car to the lawyer's office, which testimonies
are recited in the respondent Court's decision.
The respondent Court further found the following facts: that Celso Gimpaya and his wife
Maria Gimpaya obtained residence certificates a few days before Exhibit "F" was executed.
Celso Gimpaya's residence certificate No. A-5114942 was issued at Navotas, Rizal on April
13, 1961 while Maria Gimpaya's residence certificate No. A-5114974 was issued also at
Navotas, Rizal on April 14, 1961. The respondent Court correctly observed that there was
nothing surprising in these facts and that the securing of these residence certificates two
days and one day, respectively, before the execution of the will on April 15, 1961, far from
showing an amazing coincidence, reveals that the spouses were earlier notified that they
would be witnesses to the execution of Isabel Gabriel's will.
We also agree with the respondent Court's conclusion that the excursion to the office of Atty.
Paraiso was planned by the deceased, which conclusion was correctly drawn from the
testimony of the Gimpaya spouses that they started from the Navotas residence of the
deceased with a photographer and Isabel Gabriel herself, then they proceeded by car to
Matilde Orobia's house in Philamlife, Quezon City to fetch her and from there, all the three
witnesses (the Gimpayas and Orobia) passed by a place where Isabel Gabriel stayed for
about ten to fifteen minutes at the clinic of Dr. Chikiamco before they proceeded to Atty.
Cipriano Paraiso's office.
It is also evident from the records, as testified to by Atty. Paraiso, that previous to the day
that. the will was executed on April 15, 1961, Isabel Gabriel had requested him to help her in
the execution of her will and that he told her that if she really wanted to execute her will, she
should bring with her at least the Mayor of Navotas, Rizal and a Councilor to be her
witnesses and that he (Atty. Paraiso) wanted a medical certificate from a physician
notwithstanding the fact that he believed her to be of sound and disposition mind. From this
evidence, the appellate court rightly concluded, thus: "It is, therefore, clear that the presence
of Isabel Gabriel and her witnesses Matilde Orobia, Celso Gimpaya and Maria Gimpaya
including the photographer in the law office of Atty. Paraiso was not coincidental as their
gathering was pre-arranged by Isabel Gabriel herself."
As to the appellate court's finding that Atty. Paraiso was not previously furnished with the
names and residence certificates of the witnesses as to enable him to type such data into the
document Exhibit ' L which the petitioner assails as contradictory and irreconcilable with the
statement of the Court that Atty. Paraiso was handed a list (containing the names of the
witnesses and their respective residence certificates) immediately upon their arrival in the law
office by Isabel Gabriel and this was corroborated by Atty. Paraiso himself who testified that it
was only on said occasion that he received such list from Isabel Gabriel, We cannot agree
with petitioner's contention. We find no contradiction for the, respondent Court held that on
the occasion of the will making on April 15, 1961, the list was given immediately to Atty.
Paraiso and that no such list was given the lawyer in any previous occasion or date prior to
April 15, 1961.
But whether Atty. Paraiso was previously furnished with the names and residence certificates
of the witnesses on a prior occasion or on the very occasion and date in April 15, 1961 when
the will was executed, is of no moment for such data appear in the notarial acknowledgment
of Notary Public Cipriano Paraiso, subscribed and sworn to by the witnesses on April 15,
1961 following the attestation clause duly executed and signed on the same occasion, April
15, 1961. And since Exhibit "F" is a notarial will duly acknowledged by the testatrix and the
witnesses before a notary public, the same is a public document executed and attested
through the intervention of the notary public and as such public document is evidence of the
facts in clear, unequivocal manner therein expressed. It has in its favor the presumption of
regularity. To contradict all these, there must be evidence that is clear, convincing and more
than merely preponderant. (Yturalde vs. Azurin, 28 SCRA 407). We find no such evidence
pointed by petitioner in the case at bar.
Likewise, the conclusion of the Court of Appeals in holding that the fact that the three
typewritten lines under the typewritten words "pangalan ' and "tinitirahan" were left blank
shows beyond cavil that the three attesting witnesses were all present in the same occasion
merits Our approval because tills conclusion is supported and borne out by the evidence
found by the appellate court, thus: "On page 5 of Exhibit "F", beneath the typewritten words
"names", "Res. Tax Cert. date issued" and place issued the only name of Isabel Gabriel with
Residence Tax certificate No. A-5113274 issued on February 24, 1961 at Navotas Rizal
appears to be in typewritten form while the names, residence tax certificate numbers, dates
and places of issuance of said certificates pertaining to the three (3) witnesses were
personally handwritten by Atty. Paraiso. Again, this coincides with Atty. Paraiso's even the
sale must be made to close relatives; and the seventh was the appointment of the appellant
Santiago as executrix of the will without bond. The technical description of the properties in
paragraph 5 of Exhibit F was not given and the numbers of the certificates of title were only
supplied by Atty. Paraiso. "
It is true that in one disposition, the numbers of the Torrens titles of the properties disposed
and the docket number of a special proceeding are indicated which Atty. Paraiso candidly
admitted were supplied by him, whereupon petitioner contends that it was incredible that
Isabel Gabriel could have dictated the will Exhibit "F" without any note or document to Atty.
Paraiso, considering that Isabel Gabriel was an old and sickly woman more than eighty-one
years old and had been suffering from a brain injury caused by two severe blows at her head
and died of terminal cancer a few weeks after the execution of Exhibit "F". While we can rule
that this is a finding of fact which is within the competency of the respondent appellate court
in determining the testamentary capacity of the testatrix and is, therefore, beyond Our power
to revise and review, We nevertheless hold that the conclusion reached by the Court of
Appeals that the testatrix dictated her will without any note or memorandum appears to be
fully supported by the following facts or evidence appearing on record. Thus, Isabel Gabriel,
despite her age, was particularly active in her business affairs as she actively managed the
affairs of the movie business ISABELITA Theater, paying the aparatistas herself until June 4,
1961, 3 days before her death. She was the widow of the late Eligio Naval, former Governor
of Rizal Province and acted as coadministratrix in the Intestate Estate of her deceased
husband Eligio Naval. The text of the win was in Tagalog, a dialect known and understood by
her and in the light of all the circumstances, We agree with the respondent Court that the
testatrix dictated her will without any note or memorandum, a fact unanimously testified to by
the three attesting witnesses and the notary public himself.
Petitioner's sixth assignment of error is also bereft of merit. The evidence, both testimonial
and documentary is, according to the respondent court, overwhelming that Matilde Orobia
was physically present when the will was signed on April 15, 1961 by the testatrix and the
other two witnesses, Celso Gimpaya and Maria Gimpaya. Such factual finding of the
appellate court is very clear, thus: "On the contrary, the record is replete with proof that
Matilde Orobia was physically present when the will was signed by Isabel Gabriel on April '15,
1961 along with her co-witnesses Celso Gimpaya and Maria Gimpaya. The trial court's
conclusion that Orobia's admission that she gave piano lessons to the child of the appellant
on Wednesdays and Saturdays and that April 15, 1961 happened to be a Saturday for which
reason Orobia could not have been present to witness the will on that day is purely
conjectural. Witness Orobia did not admit having given piano lessons to the appellant's child
every Wednesday and Saturday without fail. It is highly probable that even if April 15, 1961
were a Saturday, she gave no piano lessons on that day for which reason she could have
witnessed the execution of the will. Orobia spoke of occasions when she missed giving piano
lessons and had to make up for the same. Anyway, her presence at the law office of Atty.
Paraiso was in the morning of April 15, 1961 and there was nothing to preclude her from
giving piano lessons on the afternoon of the same day in Navotas, Rizal."
In addition to the testimony of Matilde Orobia, Celso Gimpaya and Maria Gimpaya that
Matilde was present on April 15, 1961 and that she signed the attestation clause to the will
and on the left-hand margin of each of the pages of the will, the documentary evidence which
is the will itself, the attestation clause and the notarial acknowledgment overwhelmingly and
convincingly prove such fact that Matilde Orobia was present on that day of April 15, 1961
and that she witnessed the will by signing her name thereon and acknowledged the same
before the notary public, Atty. Cipriano P. Paraiso. The attestation clause which Matilde
Orobia signed is the best evidence as to the date of signing because it preserves in
permanent form a recital of all the material facts attending the execution of the will. This is the
very purpose of the attestation clause which is made for the purpose of preserving in
permanent form a record of the facts attending the execution of the will, so that in case of
failure in the memory of the subscribing witnesses, or other casualty they may still be proved.
(Thompson on Wills, 2nd ed., Sec. 132; Leynez vs. Leynez, 68 Phil. 745).
As to the seventh error assigned by petitioner faulting the Court of Appeals in holding that the
trial court gave undue importance to the picture-takings as proof that the win was improperly
executed, We agree with the reasoning of the respondent court that: "Matilde Orobia's
Identification of the photographer as "Cesar Mendoza", contrary to what the other two
witnesses (Celso and Maria Gimpaya) and Atty. Paraiso said that the photographer was
Benjamin Cifra, Jr., is at worst a minor mistake attributable to lapse of time. The law does not
require a photographer for the execution and attestation of the will. The fact that Miss Orobia
mistakenly Identified the photographer as Cesar Mendoza scarcely detracts from her
testimony that she was present when the will was signed because what matters here is not
the photographer but the photograph taken which clearly portrays Matilde Orobia herself, her
co-witnesses Celso Gimpaya. " Further, the respondent Court correctly held: "The trial court
gave undue importance to the picture takings, jumping therefrom to the conclusion that the
will was improperly executed. The evidence however, heavily points to only one occasion of
the execution of the will on April 15, 1961 which was witnessed by Matilde Orobia, Celso
Gimpaya and Maria Gimpaya. These witnesses were quite emphatic and positive when they
spoke of this occasion. Hence, their Identification of some photographs wherein they all
appeared along with Isabel Gabriel and Atty. Paraiso was superfluous."
Continuing, the respondent Court declared: "It is true that the second picture-taking was
disclosed at the cross examination of Celso Gimpaya. But this was explained by Atty. Paraiso
as a reenactment of the first incident upon the insistence of Isabel Gabriel. Such reenactment
where Matilde Orobia was admittedly no longer present was wholly unnecessary if not
pointless. What was important was that the will was duly executed and witnessed on the first
occasion on April 15, 1961 , " and We agree with the Court's rationalization in conformity with
logic, law and jurisprudence which do not require picture-taking as one of the legal requisites
for the execution or probate of a will.
Petitioner points to alleged grave contradictions, evasions and misrepresentations of
witnesses in their respective testimonies before the trial court. On the other hand, the
respondent Court of Appeals held that said contradictions, evasions and misrepresentations
had been explained away. Such discrepancies as in the description of the typewriter used by
Atty. Paraiso which he described as "elite" which to him meant big letters which are of the
type in which the will was typewritten but which was Identified by witness Jolly Bugarin of the
N.B.I. as pica the mistake in mentioning the name of the photographer by Matilde Orobia to
be Cesar Mendoza when actually it was Benjamin Cifra, Jr. these are indeed unimportant
details which could have been affected by the lapse of time and the treachery of human
memory such that by themselves would not alter the probative value of their testimonies on
the true execution of the will, (Pascual vs. dela Cruz, 28 SCRA 421, 424) for it cannot be
expected that the testimony of every person win be Identical and coinciding with each other
with regard to details of an incident and that witnesses are not expected to remember all
details. Human experience teach us "that contradictions of witnesses generally occur in the
details of certain incidents, after a long series of questionings, and far from being an evidence
of falsehood constitute a demonstration of good faith. In as much as not all those who
witness an incident are impressed in like manner, it is but natural that in relating their
impressions, they should not agree in the minor details; hence the contradictions in their
testimony." (Lopez vs. Liboro, 81 Phil. 429).
It is urged of Us by the petitioner that the findings of the trial court should not have been
disturbed by the respondent appellate court because the trial court was in a better position to
weigh and evaluate the evidence presented in the course of the trial. As a general rule,
petitioner is correct but it is subject to well-established exceptions. The right of the Court of
Appeals to review, alter and reverse the findings of the trial court where the appellate court, in
reviewing the evidence has found that facts and circumstances of weight and influence have
been ignored and overlooked and the significance of which have been misinterpreted by the
trial court, cannot be disputed. Findings of facts made by trial courts particularly when they
are based on conflicting evidence whose evaluation hinges on questions of credibility of
contending witnesses hes peculiarly within the province of trial courts and generally, the
appellate court should not interfere with the same. In the instant case, however, the Court of
Appeals found that the trial court had overlooked and misinterpreted the facts and
circumstances established in the record. Whereas the appellate court said that "Nothing in
the record supports the trial court's unbelief that Isabel Gabriel dictated her will without any
note or document to Atty. Paraiso;" that the trial court's conclusion that Matilde Orobia could
not have witnessed anybody signing the alleged will or that she could not have witnessed
Celso Gimpaya and Maria Gimpaya sign the same or that she witnessed only the deceased
signing it, is a conclusion based not on facts but on inferences; that the trial court gave undue
importance to the picture-takings, jumping therefrom to the conclusion that the will was
improperly executed and that there is nothing in the entire record to support the conclusion of
the court a quo that the will signing occasion was a mere coincidence and that Isabel Gabriel
made an appointment only with Matilde Orobia to witness the signing of her will, then it
becomes the duty of the appellate court to reverse findings of fact of the trial court in the
exercise of its appellate jurisdiction over the lower courts.
Still the petitioner insists that the case at bar is an exception to the rule that the judgment of
the Court of Appeals is conclusive as to the facts and cannot be reviewed by the Supreme
Court. Again We agree with the petitioner that among the exceptions are: (1) when the
conclusion is a finding grounded entirely on speculations, surmises or conjectures; (2) when
the inference is manifestly mistaken, absurd or impossible; (3) when there is a grave abuse of
discretion; (4) when the presence of each other as required by law. " Specifically, We affirm
that on April 15, 1961 the testatrix Isabel Gabriel, together with Matilde Orobia, Celso
Gimpaya and his wife Maria Gimpaya, and a photographer proceeded in a car to the office of
Atty. Cipriano Paraiso at the Bank of P.I. Building, Manila in the morning of that day; that on
the way, Isabel Gabriel obtained a medical certificate from one Dr. Chikiamko which she gave
to Atty. Paraiso upon arriving at the latter's office and told the lawyer that she wanted her will
to be made; that Atty. Paraiso asked Isabel Gabriel to dictate what she wanted to be written
in the will and the attorney wrote down the dictation of Isabel Gabriel in Tagalog, a language
known to and spoken by her; that Atty. Paraiso read back to her what he wrote as dictated
and she affirmed their correctness; the lawyer then typed the will and after finishing the
document, he read it to her and she told him that it was alright; that thereafter, Isabel Gabriel
signed her name at the end of the will in the presence of the three witnesses Matilde Orobia,
Celso Gimpaya and Maria Gimpaya and also at the left-hand margin of each and every page
of the document in the presence also of the said three witnesses; that thereafter Matilde
Orobia attested the will by signing her name at the end of the attestation clause and at the
left-hand margin of pages 1, 2, 3 and 5 of the document in the presence of Isabel Gabriel and
the other two witnesses, Celso Gimpaya and Maria Gimpaya; then, Celso Gimpaya signed
also the will at the bottom of the attestation clause and at the left-hand margin of the other
pages of the document in the presence of Isabel Gabriel, Matilde Orobia and Maria Gimpaya;
that Maria Gimpaya followed suit, signing her name at the foot of the attestation clause and at
the left-hand margin of every page in the presence of Isabel Gabriel, Matilde Orobia and
Celso Gimpaya; that thereafter, Atty. Paraiso notarized the will as Page No. 94, Book No. IV,
Series of 1961, in his Notarial Register. On the occasion of the execution and attestation of
the will, a photographer took pictures, one Exhibit "G", depicting Matilde Orobia, the testatrix
Isabel Gabriel, Celso Gimpaya, Maria Gimpaya and Atty. Paraiso, taken on said occasion of
the signing of the will, and another, Exhibit "H", showing Matilde Orobia signing testimony that
he had earlier advised Isabel Gabriel to bring with her at least the Mayor and a Councilor of
Navotas, Rizal to be her witnesses for he did not know beforehand the Identities of the three
attesting witnesses until the latter showed up at his law office with Isabel Gabriel on April 15,
1961. Atty. Paraiso's claim which was not controverted that he wrote down in his own hand
the date appearing on page 5 of Exhibit "F" dissipates any lingering doubt that he prepared
and ratified the will on the date in question."
It is also a factual finding of the Court of Appeals in holding that it was credible that Isabel
Gabriel could have dictated the will, Exhibit "F", without any note or document to Atty. Paraiso
as against the contention of petitioner that it was incredible. This ruling of the respondent
court is fully supported by the evidence on record as stated in the decision under review,
thus: "Nothing in the record supports the trial court's unbelief that Isabel Gabriel dictated her
will without any note or document to Atty. Paraiso. On the contrary, all the three attesting
witnesses uniformly testified that Isabel Gabriel dictated her will to Atty. Paraiso and that
other than the piece of paper that she handed to said lawyer she had no note or document.
This fact jibes with the evidence which the trial court itself believed was unshaken that
Isabel Gabriel was of sound disposing memory when she executed her will.
Exhibit "F" reveals only seven (7) dispositions which are not complicated but quite simple.
The first was Isabel Gabriel's wish to be interred according to Catholic rites the second was a
general directive to pay her debts if any; the third provided for P1,000.00 for her sister
Praxides Gabriel Vda. de Santiago and P2,000.00 for her brother Santiago Gabriel; the fourth
was a listing of her 13 nephews and nieces including oppositor-appellee Rizalina Gabriel and
the amount for each legatee the fifth was the institution of the petitioner-appellant, Lutgarda
Santiago as the principal heir mentioning in general terms seven (7) types of properties; the
sixth disposed of the remainder of her estate which she willed in favor of appellant Lutgarda
Santiago but prohibiting the sale of such properties to anyone except in extreme situations in
which judgment is based on a misapprehension of facts; (5) when the findings of fact are
conflicting, (6) when the Court of Appeals, in making its findings, went beyond the issues of
the case and the same is contrary to the admissions of both appellant and appellee. (Roque
vs. Buan, et al., G.R. No. L-22459, Oct. 31, 1967; Ramos vs. Pepsi Cola Bottling Co., G.R.
No. L-22533, Feb. 9, 1967; Hilarion Jr. vs. City of Manila, G.R. No. L-19570; Sept. 14, 1967).
Petitioner's insistence is without merit. We hold that the case at bar does not fall within any of
the exceptions enumerated above. We likewise hold that the findings of fact of the
respondent appellate court are fully supported by the evidence on record. The conclusions
are fully sustained by substantial evidence. We find no abuse of discretion and We discern no
misapprehension of facts. The respondent Court's findings of fact are not conflicting. Hence,
the well-established rule that the decision of the Court of Appeals and its findings of fact are
binding and conclusive and should not be disturbed by this Tribunal and it must be applied in
the case at bar in its full force and effect, without qualification or reservation. The above
holding simply synthesize the resolutions we have heretofore made in respect ' to petitioner's
previous assignments of error and to which We have disagreed and, therefore, rejected.
The last assignments of error of petitioner must necessarily be rejected by Us as We find the
respondent Court acted properly and correctly and has not departed from the accepted and
usual course of judicial proceedings as to call for the exercise of the power of supervision by
the Supreme Court, and as We find that the Court of Appeals did not err in reversing the
decision of the trial court and admitting to probate Exhibit "F", the last will and testament of
the deceased Isabel Gabriel.
We rule that the respondent Court's factual findings upon its summation and evaluation of the
evidence on record is unassailable that: "From the welter of evidence presented, we are
convinced that the will in question was executed on April 15, 1961 in the presence of Matilde
Orobia, Celso Gimpaya and Maria Gimpaya signing and witnessing the same in the the will
on a table with Isabel Gabriel, Celso Gimpaya and Maria Gimpaya sitting around the table.
Atty. Paraiso, after finishing the notarial act, then delivered the original to Isabel Gabriel and
retained the other copies for his file and notarial register. A few days following the signing of
the will, Isabel Gabriel, Celso Gimpaya and another photographer arrived at the office of Atty.
Paraiso and told the lawyer that she wanted another picture taken because the first picture
did not turn out good. The lawyer told her that this cannot be done because the will was
already signed but Isabel Gabriel insisted that a picture be taken, so a simulated signing was
performed during which incident Matilde Orobia was not present.
Petitioner's exacerbation centers on the supposed incredibility of the testimonies of the
witnesses for the proponent of the will, their alleged evasions, inconsistencies and
contradictions. But in the case at bar, the three instrumental witnesses who constitute the
best evidence of the will making have testified in favor of the probate of the will. So has the
lawyer who prepared it, one learned in the law and long in the practice thereof, who thereafter
notarized it. All of them are disinterested witnesses who stand to receive no benefit from the
testament. The signatures of the witnesses and the testatrix have been identified on the will
and there is no claim whatsoever and by anyone, much less the petitioner, that they were not
genuine. In the last and final analysis, the herein conflict is factual and we go back to the rule
that the Supreme Court cannot review and revise the findings of facts of the respondent
Court of Appeals.

WHEREFORE, IN VIEW OF THE FOREGOING, the judgment appealed from is hereby

AFFIRMED, with costs against the petitioner.

SO ORDERED.
 EN BANC
G.R. No. 17857 June 12, 1922
In re will of Josefa Zalamea y Abella, deceased.
PEDRO UNSON, petitioner-appellee,
vs.
ANTONIO ABELLA, ET AL., opponents-appellants.
Crispin Oben for appellants.
Pedro Guevarra and Carlos Ledesma for appellee.
VILLAMOR, J.:
On July 19, 1918, Doa Josefa Zalamea y Abella, single, 60 years old, who was residing in
the municipality of Pagsanjan, Province of Laguna, executed her last will and testament with
an attached inventory of her properties, Exhibits A and A-1, in the presence of three
witnesses, who signed with her all the pages of said documents. The testatrix died on the 6th
of January, 1921, and, as the record shows, the executor appointed in the will, Pedro Unson,
filed in the court of First Instance of Laguna on the 19th of January of the same year an
application for the probate of the will and the issuance of the proper letters of administration
in his favor.
To said application an opposition was presently by Antonio Abella, Ignacia Abella, Avicencia
Abella, and Santiago Vito, alleging that the supposed will of the deceased Zalamea was not
executed in conformity with the provinces of the law, inasmuch as it was not paged
correlatively in letters, nor was there any attestation clause in it, nor was it signed by the
testatrix and the witnesses in the presence of each other.
Trial having been held, the judge a quo overruled the opposition of the contestants, and
ordered the probate of the will, Exhibit A, and the inventory, Exhibit A-1, holding that both
documents contained the true and last will of the deceased Josefa Zalamea.
From the judgment of the court below, the contestants have appealed, and in their brief they
assign three errors, which, in their opinion, justify the reversal of the judgment appealed from.
The first error assigned by the appellants as committed by the court below is its finding to the
effect that Exhibit A, said to be the will of the deceased Josefa Zalamea, was executed with
all the solemnities required by the law.
The arguments advanced by appellants' counsel in support of the first assignment of error
tend to impeach the credibility of the witnesses for the proponent, specially that of Eugenio
Zalamea. We have made a careful examination of the evidence, but have not found anything
that would justify us in disturbing the finding of the court a quo. The attesting witnesses,
Eugenio Zalamea and Gonzalo Abaya, clearly testify that together with the other witness to
the will, Pedro de Jesus, they did sign each and every page of the will and of the inventory in
the presence of each other and of the testatrix, as the latter did likewise sign all the pages of
the will and of the inventory in their presence.
In their brief the appellants intimate that one of the pages of the will was not signed by the
testatrix, nor by the witnesses on the day of the execution of the will, that is, on the 19th of
July, 1918, basing their contention on the testimony of Aurelio Palileo, who says that on one
occasion Gonzalo Abaya told him that one of the pages of the will had not been signed by the
witnesses, nor by the testatrix on the day of its execution. Palileo's testimony is entirely
contradicted by Gonzalo Abaya not only in the direct, but in the rebuttal, evidence as well. To
our mind, Palileo's testimony cannot prevail over that of the attesting witnesses, Gonzalo
Avaya and Eugenio Zalamea. The appellants impeach the credibility of Eugenio Zalamea, for
having made a sworn declaration before the justice of the peace of Santa Cruz, Laguna,
before the trial of this case, to the effect that he was really one of the witnesses to the will in
question, which fact was corroborated by himself at the trial. The appellants take Zalamea's
testimony in connection with the dismissal of a criminal case against a nephew of his, in
whose success he was interested, and infer from this fact the partiality of his testimony. We
deem this allegation of little importance to impeach the credibility of the witness Zalamea,
especially because his testimony is corroborated by the other attesting witness. Gonzalo
Abaya, and by attorney Luis Abaya, who had prepared the testament at the instance of the
testatrix. The foregoing is sufficient for us to conclude that the first assignment of error made
by the appellants is groundless.
The appellants contend that the court below erred in admitting the will to probate
notwithstanding the omission of the proponent to produce one of the attesting witnesses.
At the trial of this case the attorneys for the proponent stated to the court that they had
necessarily to omit the testimony of Pedro de Jesus, one of the persons who appear to have
witnessed the execution of the will, for there were reasonable grounds to believe that said
witness was openly hostile to the proponent, inasmuch as since the announcement of the trial
of the petition for the probate of the will, said witness has been in frequent communication
with the contestants and their attorney, and has refused to hold any conference with the
attorneys for the proponent. In reply to this, the attorney for the contestants, said to the court,
"without discussing for the present whether or not in view of those facts (the facts mentioned
by the attorneys for the petitioner), in the hypothesis that the same are proven, they are
relieved from producing that witness, for while it is a matter not decided, it is a recognized
rule that the fact that a witness is hostile does not justify a party to omit his testimony; without
discussing this, I say, I move that said statement be stricken out, and if the proponent wants
these facts to stand to stand in the record, let him prove them." The court a quo ruled, saying,
"there is no need."
To this ruling of the court, the attorney for the appellants did not take any exception.
In the case of Avera vs. Garcia and Rodriguez (42 Phil., 145), recently decided by this court,
in deciding the question whether a will can be admitted to probate, where opposition is made,
upon the proof of a single attesting witness, without producing or accounting for the absence
of the other two, it was said; "while it is undoubtedly true that an uncontested will may be
proved by the testimony of only one of the three attesting witnesses, nevertheless in Cabang
vs. Delfinado (34 Phil., 291), this court declared after an elaborate examination of the
American and English authorities that when a contest is instituted, all of the attesting
witnesses must be examined, if alive and within reach of the process of the court.
In the present case no explanation was made at the trial as to why all three of the
attesting witnesses were not produced, but the probable reason is found in the fact
that, although the petition for the probate of this will had been pending from
December 21, 1917, until the date set for the hearing, which was April 5, 1919, no
formal contest was entered until the very day set for the hearing; and it is probable
that the attorney for the proponent, believing in good faith that probate would not
be contested, repaired to the court with only one of the three attesting witnesses at
hand, and upon finding that the will was contested, incautiously permitted the case to
go to proof without asking for a postponement of the trial in order that he might
produce all the attesting witnesses.
Although this circumstance may explain why the three witnesses were not produced,
it does not in itself supply any basis for changing the rule expounded in the case
above referred to; and were it not for a fact now to be mentioned, this court would
probably be compelled to reverse this case on the ground that the execution of the
will had not been proved by a sufficient number of attesting witnesses.
It appears, however, that this point was not raised by the appellant in the lower court
either upon the submission of the cause for determination in that court or upon the
occasion of the filing of the motion for a new trial. Accordingly it is insisted for the
appellee that this question cannot now be raised for t he first time in this court. We
believe this point is well taken, and the first assignment of error must be declared not
to be well taken. This exact question has been decided by the Supreme Court of
California adversely to the contention of the appellant, and we see no reason why the
same rule of practice should not be observed by us. (Estate of McCarty, 58 Cal., 335,
337.)
There are at least two reasons why the appellate tribunals are disinclined to permit
certain questions to be raised for the first time in the second instance. In the first
place it eliminates the judicial criterion of the Court of First Instance upon the point
there presented and makes the appellate court in effect a court of first instance with
reference to that point, unless the case is remanded for a new trial. In the second
place, it permits, if it does not encourage, attorneys to trifle with the administration of
justice by concealing from the trial court and from their opponent the actual point
upon which reliance is placed, while they are engaged in other discussions more
simulated than real. These considerations are, we think, decisive.
In ruling upon the point above presented we do not wish to be understood as laying
down any hard and fast rule that would prove an embarrassment to this court in the
administration of justice in the future. In one way or another we are constantly here
considering aspects of cases and applying doctrines which have escaped the
attention of all persons concerned in the litigation below; and this is necessary if this
court is to contribute the part due from it in the correct decision of the cases brought
before it. What we mean to declare is that when we believe that substantial justice
has been done in the Court of First Instance, and the point relied on for reversal in
this court appears to be one which ought properly to have been presented in that
court, we will in the exercise of a sound discretion ignore such question upon appeal;
and this is the more proper when the question relates to a defect which might have
been cured in the Court of First Instance if attention had been called to it there. In the
present case, if the appellant had raised this question in the lower court, either at the
hearing or upon a motion for a new trial, that court would have had the power, and it
would have been its duty, considering the tardy institution of the contest, to have
granted a new trial in order that all the witnesses to the will might be brought into
court. But instead of thus calling the error to the attention of the court and his
adversary, the point is first raised by the appellant in this court. We hold that this is
too late.
Properly understood, the case of Cabang vs. Delfinado, supra, contains nothing
inconsistent with the ruling we now make, for it appears from the opinion in that case
that the proponent of the will had obtained an order for a republication and new trial
for the avowed purpose of presenting the two additional attesting witnesses who had
not been previously examined, but nevertheless subsequently failed without any
apparent reason to take their testimony. Both parties in that case were therefore fully
apprised that the question of the number of witnesses necessar to prove the will was
in issue in the lower court.
In the case at bar, we do not think this question properly to have been raised at the trial, but
in the memorandum submitted by the attorney for the appellants to the trial court, he
contended that the will could not be admitted to probate because one of the witnesses to the
will was not produced, and that the voluntary non-production of this witness raises a
presumption against the pretension of the proponent. The trial court found that the evidence
introduced by the proponent, consisting of the testimony of the two attesting witnesses and
the other witness who was present at the execution, and had charge of the preparation of the
will and the inventory, Exhibits A and A-1, was sufficient. As announced in Cabang vs.
Delfinado, supra, the general rule is that, where opposition is made to the probate of a will,
the attesting witnesses must be produced. But there are exceptions to this rule, for instance,
when a witness is dead, or cannot be served with process of the court, or his reputation for
truth has been questioned or he appears hostile to the cause of the proponent. In such
cases, the will may be admitted to probate without the testimony of said witness, if, upon the
other proofs adduced in the case, the court is satisfied that the will has been duly executed.
Wherefore, we find that the non-production of the attesting witness, Pedro de Jesus, as
accounted for by the attorney for the proponent at the trial, does not render void the decree of
the court a quo, allowing the probate.
But supposing that said witness, when cited, had testified adversely to the application, this
would not by itself have change the result reached by the court a quo, for section 632 of the
Code of Civil Procedure provides that a will can be admitted to probate, notwithstanding that
one or more witnesses do not remember having attested it, provided the court is satisfied
upon the evidence adduced that the will has been executed and signed in the manner
prescribed by the law.
The last error assigned by the appellants is made to consist in the probate of the inventory,
Exhibit A-1, despite the fact that this exhibit has no attestation clause in it, and its paging is
made in Arabic numerals and not in letters.
In the third paragraph of the will, reference is made to the inventory, Exhibit A-1, and at the
bottom of said will, the testatrix Josefa Zalamea says:
In witness whereof, I sign this will composed of ten folios including the page
containing the signatures and the attestation of the witnesses; I have likewise signed
the inventory attached to this will composed of ten folios in the presence of Messrs.
Gonzalo Abaya, Eugenio Zalamea, Pedro de Jesus, in this municipality of Pagsanjan,
Laguna, Philippine Islands, this 19th of July, 1918.
And the attestation clause is as follows:
The foregoing will composed of ten folios including this one whereunto we have
affixed our signatures, as well as the inventory of the properties of Doa Josefa
Zalamea y Abella, was read to Doa Josefa Zalamea y Abella, and the latter affixed
her name to the last, and each and every page of this will and inventory composed of
ten folios in our presence; and she declared this to be her last will and testament and
at her request we have affixed hereunto our respective signatures in her presence
and in the presence of each other as witnesses to the will and the inventory this 19th
of July, 1918, at Pagsanjan, Laguna, P.I.
(Sgd.) GONZALO ABAYA,
EUGENIO ZALAMEA,
PEDRO DE JESUS.
In view of the fact that the inventory is referred to in the will as an integral part of it, we find
that the foregoing attestation clause is in compliance with section 1 of Act No. 2645, which
requires this solemnity for the validity of a will, and makes unnecessary any other attestation
clause at the end of the inventory.
As to the paging of the will in Arabic numerals, instead of in letters, we adhere to the doctrine
announced in the case of Aldaba vs. Roque (p. 378, ante), recently decided by this court. In
that case the validity of the will was assailed on the ground that its folios were paged with the
letters A, B, C, etc., instead of with the letters "one," two," "three," etc. It was held that this
way of numbering the pages of a will is in compliance with the spirit of the law, inasmuch as
either one of these methods indicates the correlation of the pages and serves to prevent the
abstraction of any of them. In the course of the decision, we said: "It might be said that the
object of the law in requiring that the paging be made in letters is to make falsification more
difficult, but it should be noted that since all the pages of the testament are signed at the
margin by the testatrix and the witnesses, the difficulty of forging the signatures in either case
remains the same. In other words the more or less degree of facility to imitate the writing of
the letters A, B, C, etc., does not make for the easiness to forge the signatures. And as in the
present case there exists the guaranty of the authenticity of the testament, consisting in the
signatures on the left margins of the testament and the paging thereof as declared in the
attestation clause, the holding of this court in Abangan vs. Abangan (40 Phil., 476), might as
well be repeated:
"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
whatsoever, that adds nothing but demands more requisites entirely unnecessary,
useless, and frustrative of the testator's last will, must be disregarded."
In that case the testament was written on one page, and the attestation clause on another.
Neither one of these pages was numbered in any way, and it was held: "In a will consisting of
two sheets the first of which contains all the testamentary dispositions and is signed at the
bottom by the testator and three witnesses, and the second contains only the attestation
clause and is signed also at the bottom by the three witnesses it is not necessary that both
sheets be further signed on their margins by the testator and the witnesses, or be paged."
This means that, according to the particular case, the emission of paging does not
necessarily render the testament invalid.
The law provides that the numbering of the pages should be in letters placed on the upper
part of the sheet, but if the paging should be placed in the lower part, would the testament be
void for this sole reason? We believe not. The law also provides that the testator and the
witnesses must sign the left margin of each of the sheets of the testament; but if they should
sign on the right margin, would this fact also annul the testament? Evidently not. This court
has already held in Avera vs. Garcia and Rodriguez (42 Phi., 145):
"It is true that the statute says that the testator and the instrumental witnesses shall
sign their names on the left margin of each and every page; and it is undeniable that
the general doctrine is to the effect that all statutory requirements as to the execution
of wills must be fully complied with. The same execution for wills must be fully
complied with. The same doctrine is also deducible from cases heretofore decided by
this court."
 "Still some details at time creep into legislative enactments which are so trivial that it
would be absurd to suppose that the Legislature could have attached any decisive
importance to them. The provision to the effect that the signatures of the testator and
witnesses shall be written on the left margin of each page rather than on the
margin seems to be of this character. So far as concerns the authentication of the
will, and of every part thereof, it can make no possible difference whether the names
appear on the left or on the right margin, provided they are on one or the other. In
Craig vs. Tatlonghari (G. R. No. 12558, decided March 23, 1918, not reported), this
court declared a will void which was totally lacking in the signatures required to be
written on its several pages; and in the case of Re Estate of Saguinsin (41 Phil., 875)
a will was likewise declared void which contained the necessary signatures on the
margin of each leaf (folio), but not in the margin of each page containing written
matter."

We do not desire to intimate that the numbering in letters is a requisite of no importance. But
since its principal object is to give the correlation of the pages, we hold that his object may be
attained by writing one, two, three, etc., as well as by writing A, B, C, etc.

We see no reason why the same rule should not be applied where the paging is in Arabic
numerals, instead of in letters, as in the inventory in question. So that, adhering to the view
taken by this court in the case of Abangan vs. Abangan, and followed in Aldava vs. Roque,
with regard to the appreciation of the solemnities of a will, we find that the judgement
appealed from should be, as is hereby, affirmed with the costs against the appellants. So
ordered.

Araullo, C.J., Malcolm, Avancea, Ostrand, Johns and Romualdez, JJ., concur.
 SECOND DIVISION
G.R. No. 76464 February 29, 1988
TESTATE ESTATE OF THE LATE ADRIANA MALOTO, ALDINA MALOTO CASIANO,
CONSTANCIO MALOTO, PURIFICACION MIRAFLOR, ROMAN CATHOLIC CHURCH OF
MOLO, AND ASILO DE MOLO, petitioners,
vs.
COURT OF APPEALS, PANFILO MALOTO AND FELINO MALOTO, respondents.
SARMIENTO, J.:
This is not the first time that the parties to this case come to us. In fact, two other cases
directly related to the present one and involving the same parties had already been decided
by us in the past. In G.R. No. L-30479, 1which was a petition for certiorari and mandamus
instituted by the petitioners herein, we dismissed the petition ruling that the more appropriate
remedy of the petitioners is a separate proceeding for the probate of the will in question.
Pursuant to the said ruling, the petitioners commenced in the then Court of First Instance of
Iloilo, Special Proceeding No. 2176, for the probate of the disputed will, which was opposed
by the private respondents presently, Panfilo and Felino both surnamed Maloto. The trial
court dismissed the petition on April 30, 1970. Complaining against the dismissal, again, the
petitioners came to this Court on a petition for review by certiorari. 2 Acting on the said
petition, we set aside the trial court's order and directed it to proceed to hear the case on the
merits. The trial court, after hearing, found the will to have already been revoked by the
testatrix. Adriana Maloto, and thus, denied the petition. The petitioners appealed the trial
court's decision to the Intermediate Appellate Court which, on June 7, 1985, affirmed the
order. The petitioners' motion for reconsideration of the adverse decision proved to be of no
avail, hence, this petition.
For a better understanding of the controversy, a factual account would be a great help.
On October 20, 1963, Adriana Maloto died leaving as heirs her niece and nephews, the
petitioners Aldina Maloto-Casiano and Constancio, Maloto, and the private respondents
Panfilo Maloto and Felino Maloto. Believing that the deceased did not leave behind a last will
and testament, these four heirs commenced on November 4, 1963 an intestate proceeding
for the settlement of their aunt's estate. The case was instituted in the then Court of First
Instance of Iloilo and was docketed as Special Proceeding No. 1736. However, while the
case was still in progress, or to be exact on February 1, 1964, the parties Aldina,
Constancio, Panfilo, and Felino executed an agreement of extrajudicial settlement of
Adriana's estate. The agreement provided for the division of the estate into four equal parts
among the parties. The Malotos then presented the extrajudicial settlement agreement to the
trial court for approval which the court did on March 21, 1964. That should have signalled the
end of the controversy, but, unfortunately, it had not.
Three years later, or sometime in March 1967, Atty. Sulpicio Palma, a former associate of
Adriana's counsel, the late Atty. Eliseo Hervas, discovered a document entitled
"KATAPUSAN NGA PAGBUBULAT-AN (Testamento)," dated January 3,1940, and purporting
to be the last will and testament of Adriana. Atty. Palma claimed to have found the testament,
the original copy, while he was going through some materials inside the cabinet drawer
formerly used by Atty. Hervas. The document was submitted to the office of the clerk of the
Court of First Instance of Iloilo on April 1, 1967. Incidentally, while Panfilo and Felino are still
named as heirs in the said will, Aldina and Constancio are bequeathed much bigger and
more valuable shares in the estate of Adriana than what they received by virtue of the
agreement of extrajudicial settlement they had earlier signed. The will likewise gives devises
and legacies to other parties, among them being the petitioners Asilo de Molo, the Roman
Catholic Church of Molo, and Purificacion Miraflor.
Thus, on May 24, 1967, Aldina and Constancio, joined by the other devisees and legatees
named in the will, filed in Special Proceeding No. 1736 a motion for reconsideration and
annulment of the proceedings therein and for the allowance of the will When the trial court
denied their motion, the petitioner came to us by way of a petition for certiorari and
mandamus assailing the orders of the trial court . 3 As we stated earlier, we dismissed that
petition and advised that a separate proceeding for the probate of the alleged will would be
the appropriate vehicle to thresh out the matters raised by the petitioners.
Significantly, the appellate court while finding as inconclusive the matter on whether or not
the document or papers allegedly burned by the househelp of Adriana, Guadalupe Maloto
Vda. de Coral, upon instructions of the testatrix, was indeed the will, contradicted itself and
found that the will had been revoked. The respondent court stated that the presence
of animus revocandi in the destruction of the will had, nevertheless, been sufficiently proven.
The appellate court based its finding on the facts that the document was not in the two safes
in Adriana's residence, by the testatrix going to the residence of Atty. Hervas to retrieve a
copy of the will left in the latter's possession, and, her seeking the services of Atty. Palma in
order to have a new will drawn up. For reasons shortly to be explained, we do not view such
facts, even considered collectively, as sufficient bases for the conclusion that Adriana
Maloto's will had been effectively revoked.
There is no doubt as to the testamentary capacity of the testatrix and the due execution of the
will. The heart of the case lies on the issue as to whether or not the will was revoked by
Adriana.
The provisions of the new Civil Code pertinent to the issue can be found in Article 830.
Art. 830. No will shall be revoked except in the following cases:
(1) By implication of law; or
(2) By some will, codicil, or other writing executed as provided in case of
wills: or
 (3) By burning, tearing, cancelling, or obliterating the will with the intention of
revoking it, by the testator himself, or by some other person in his presence,
and by his express direction. If burned, torn cancelled, or obliterated by some
other person, without the express direction of the testator, the will may still be
established, and the estate distributed in accordance therewith, if its
contents, and due execution, and the fact of its unauthorized destruction,
cancellation, or obliteration are established according to the Rules of Court.
(Emphasis Supplied.)
It is clear that the physical act of destruction of a will, like burning in this case, does not per
se constitute an effective revocation, unless the destruction is coupled with animus
revocandi on the part of the testator. It is not imperative that the physical destruction be done
by the testator himself. It may be performed by another person but under theexpress
direction and in the presence of the testator. Of course, it goes without saying that the
document destroyed must be the will itself.
In this case, while animus revocandi or the intention to revoke, may be conceded, for that is a
state of mind, yet that requisite alone would not suffice. "Animus revocandi is only one of the
necessary elements for the effective revocation of a last will and testament. The intention to
revoke must be accompanied by the overt physical act of burning, tearing, obliterating, or
cancelling the will carried out by the testator or by another person in his presence and under
his express direction. There is paucity of evidence to show compliance with these
requirements. For one, the document or papers burned by Adriana's maid, Guadalupe, was
not satisfactorily established to be a will at all, much less the will of Adriana Maloto. For
another, the burning was not proven to have been done under the express direction of
Adriana. And then, the burning was not in her presence. Both witnesses, Guadalupe and
Eladio, were one in stating that they were the only ones present at the place where the stove
(presumably in the kitchen) was located in which the papers proffered as a will were burned.
The respondent appellate court in assessing the evidence presented by the private
respondents as oppositors in the trial court, concluded that the testimony of the two
witnesses who testified in favor of the will's revocation appear "inconclusive." We share the
same view. Nowhere in the records before us does it appear that the two witnesses,
Guadalupe Vda. de Corral and Eladio Itchon, both illiterates, were unequivocably positive that
the document burned was indeed Adriana's will. Guadalupe, we think, believed that the
papers she destroyed was the will only because, according to her, Adriana told her so.
Eladio, on the other hand, obtained his information that the burned document was the will
because Guadalupe told him so, thus, his testimony on this point is double hearsay.
At this juncture, we reiterate that "(it) is an important matter of public interest that a purported
win is not denied legalization on dubious grounds. Otherwise, the very institution of
testamentary succession will be shaken to its very foundations ...." 4
The private respondents in their bid for the dismissal of the present action for probate
instituted by the petitioners argue that the same is already barred by res adjudicata. They
claim that this bar was brought about by the petitioners' failure to appeal timely from the order
dated November 16, 1968 of the trial court in the intestate proceeding (Special Proceeding
No. 1736) denying their (petitioners') motion to reopen the case, and their prayer to annul the
previous proceedings therein and to allow the last will and testament of the late Adriana
Maloto. This is untenable.
The doctrine of res adjudicata finds no application in the present controversy. For a judgment
to be a bar to a subsequent case, the following requisites must concur: (1) the presence of a
final former judgment; (2) the former judgment was rendered by a court having jurisdiction
over the subject matter and the parties; (3) the former judgment is a judgment on the merits;
and (4) there is, between the first and the second action, Identity of parties, of subject matter,
and of cause of action. 5 We do not find here the presence of all the enumerated requisites.
For one, there is yet, strictly speaking, no final judgment rendered insofar as the probate of
Adriana Maloto's will is concerned. The decision of the trial court in Special Proceeding No.
1736, although final, involved only the intestate settlement of the estate of Adriana. As such,
that judgment could not in any manner be construed to be final with respect to the probate of
the subsequently discovered will of the decedent. Neither is it a judgment on the merits of the
action for probate. This is understandably so because the trial court, in the intestate
proceeding, was without jurisdiction to rule on the probate of the contested will . 6 After all, an
action for probate, as it implies, is founded on the presence of a will and with the objective of
proving its due execution and validity, something which can not be properly done in an
intestate settlement of estate proceeding which is predicated on the assumption that the
decedent left no will. Thus, there is likewise no Identity between the cause of action in
intestate proceeding and that in an action for probate. Be that as it may, it would be
remembered that it was precisely because of our ruling in G.R. No. L-30479 that the
petitioners instituted this separate action for the probate of the late Adriana Maloto's will.
Hence, on these grounds alone, the position of the private respondents on this score can not
be sustained.
One last note. The private respondents point out that revocation could be inferred from the
fact that "(a) major and substantial bulk of the properties mentioned in the will had been
disposed of: while an insignificant portion of the properties remained at the time of death (of
the testatrix); and, furthermore, more valuable properties have been acquired after the
execution of the will on January 3,1940." 7 Suffice it to state here that as these additional
matters raised by the private respondents are extraneous to this special proceeding, they
could only be appropriately taken up after the will has been duly probated and a certificate of
its allowance issued.
WHEREFORE, judgment is hereby rendered REVERSING and SETTING ASIDE the
Decision dated June 7, 1985 and the Resolution dated October 22, 1986, of the respondent
Court of Appeals, and a new one ENTERED for the allowance of Adriana Maloto's last will
and testament. Costs against the private respondents.
This Decision is IMMEDIATELY EXECUTORY.
 EN BANC
G.R. No. L-2538 September 21, 1951
Testate Estate of the Deceased MARIANO MOLO Y LEGASPI. JUANA JUAN VDA. DE
MOLO, petitioner-appellee,
vs.
LUZ, GLICERIA and CORNELIO MOLO, oppositors-appellants.
Claro M. Recto and Serafin C. Dizon for appellants.
Delgado & Flores for appellee.
BAUTISTA ANGELO, J.:
This is an appeal from an order of the Court of First Instance of Rizal admitting to probate the
last will and testament of the deceased Mariano Molo y Legaspi executed on August 17,
1918. The oppositors-appellants brought the case on appeal to this Court for the reason that
the value of the properties involved exceeds P50,000.
Mariano Molo y Legaspi died on January 24, 1941, in the municipality of Pasay, province of
Rizal, without leaving any forced heir either in the descending or ascending line. He was
survived, however, by his wife, the herein petitioner Juana Juan Vda. de Molo, and by his
nieces and nephew, the oppositors-appellants, Luz Gliceria and Cornelio, all surnamed Molo,
who were the legitimate children of Candido Molo y Legaspi, deceased brother of the
testator. Mariano Molo y Legaspi left two wills, one executed on August 17, 1918, (Exhibit A)
and another executed on June 20, 1939. (Exhibit I). The later will executed in 1918.
On February 7, 1941, Juana Juan Vda. de Molo, filed in the Court of First Instance of Rizal a
petition, which was docketed as special proceeding No. 8022 seeking the probate of the will
executed by the deceased on June 20, 1939. There being no opposition, the will was
probated. However, upon petition filed by the herein oppositors, the order of the court
admitting the will to probate was set aside and the case was reopened. After hearing, at
which both parties presented their evidence, the court rendered decision denying the probate
of said will on the ground that the petitioner failed to prove that the same was executed in
accordance with law.
In view of the disallowance of the will executed on June 20, 1939, the widow on February 24,
1944, filed another petition for the probate of the will executed by the deceased on August
17, 1918, which was docketed as special proceeding No. 56, in the same court. Again, the
same oppositors filed an opposition to the petition based on three grounds: (1) that petitioner
is now estopped from seeking the probate of the will of 1918; (2) that said will has not been
executed in the manner required by law and (3) that the will has been subsequently revoked.
But before the second petition could be heard, the battle for liberation came and the records
of the case were destroyed. Consequently, a petition for reconstitution was filed, but the
same was found to be impossible because neither petitioner nor oppositors could produce
the copies required for its reconstitution. As a result, petitioner filed a new petition on
September 14, 1946, similar to the one destroyed, to which the oppositors filed an opposition
based on the same grounds as those contained in their former opposition. Then, the case
was set for trial, and on May 28, 1948, the court issued an order admitting the will to probate
already stated in the early part of this decision. From this order the oppositors appealed
assigning six errors, to wit.
I. The probate court erred in not holding that the present petitioner voluntarily and
deliberately frustrated the probate of the will dated June 20, 1939, in special
proceeding No. 8022, in order to enable her to obtain the probate of another alleged
will of Molo dated 191.
II. The court a quo erred in not holding that the petitioner is now estopped from
seeking the probate of Molo's alleged will of 1918.
III. The lower court erred in not holding that petitioner herein has come to court with
"unclean hands" and as such is not entitled to relief.
IV. The probate court erred in not holding that Molo's alleged will of August 17, 1918
was not executed in the manner required by law.
V. The probate court erred in not holding that the alleged will of 1918 was
deliberately revoked by Molo himself.
VI. The lower court erred in not holding that Molo's will of 1918 was subsequently
revoked by the decedent's will of 1939.
In their first assignment of error, counsel for oppositors contend that the probate court erred
in not holding that the petitioner voluntarily and deliberately frustrated the probate of the will
dated June 20, 1939, in order to enable her to obtain the probate of the will executed by the
deceased on August 17, 1918, pointing out certain facts and circumstances with their opinion
indicate that petitioner connived with the witness Canuto Perez in an effort to defeat and
frustrate the probate of the 1939 will because of her knowledge that said will intrinsically
defective in that "the one and only testamentory disposition thereof was a "disposicion
captatoria". These circumstances, counsel for the appellants contend, constitute a series of
steps deliberately taken by petitioner with a view to insuring the realization of her plan of
securing the probate of the 1918 will which she believed would better safeguard her right to
inherit from the decease.
These imputations of fraud and bad faith allegedly committed in connection with special
proceedings No. 8022, now closed and terminated, are vigorously met by counsel for
petitioner who contends that to raise them in these proceedings which are entirely new and
distinct and completely independent from the other is improper and unfair as they find no
support whatsoever in any evidence submitted by the parties in this case. They are merely
based on the presumptions and conjectures not supported by any proof. For this reason,
counsel, contends, the lower court was justified in disregarding them and in passing them sub
silentio in its decision.
A careful examination of the evidence available in this case seems to justify this contention.
There is indeed no evidence which may justify the insinuation that petitioner had deliberately
intended to frustrate the probate of the 1939 will of the deceased to enable her to seek the
probate of another will other than a mere conjecture drawn from the apparently unexpected
testimony of Canuto Perez that he went out of the room to answer an urgent call of nature
when Artemio Reyes was signing the will and the failure of petitioner later to impeach the
character of said witness in spite of the opportunity given her by the court to do so. Apart
from this insufficiency of evidence, the record discloses that this failure has been explained
by petitioner when she informed the court that she was unable to impeach the character of
her witness Canuto Perez because of her inability to find witnesses who may impeach him,
and this explanation stands uncontradicted. Whether this explanation is satisfactory or not, it
is not now, for us to determine. It is an incident that comes within the province of the former
case. The failure of petitioner to present the testimony of Artemio Reyes at the hearing has
also been explained, and it appears that petitioner has filed because his whereabouts could
not be found. Whether this is true or not is also for this Court to determine. It is likewise within
the province and function of the court in the former case. And the unfairness of this
imputation becomes more glaring when we stock of the developments that had taken place in
these proceedings which show in bold relief the true nature of the conduct, behavior and
character of the petitioner so bitterly assailed and held in disrepute by the oppositors.
It should be recalled that the first petition for the probate of the will executed on June 20,
1939, was filed on February 7, 1941, by the petitioner. There being no opposition, the will
was probated. Subsequently, however, upon petition of the herein oppositors, the order of the
court admitting said will to probate was set aside, over the vigorous opposition of the herein
petitioner, and the case was reopened. The reopening was ordered because of the strong
opposition of the oppositors who contended that he will had not been executed as required by
law. After the evidence of both parties had been presented, the oppositors filed an extensive
memorandum wherein they reiterated their view that the will should be denied probate. And
on the strenght of this opposition, the court disallowed the will.
If petitioner then knew that the 1939 will was inherently defective and would make the
testamentary disposition in her favor invalid and ineffective, because it is a "disposicion
captatoria", which knowledge she may easily acquire through consultation with a lawyer,
there was no need her to go through the order of filing the petition for the probate of the will.
She could accomplish her desire by merely suppressing the will or tearing or destroying it,
and then take steps leading to the probate of the will executed in 1918. But for her
conscience was clear and bade her to take the only proper step possible under the
circumstances, which is to institute the necessary proceedings for the probate of the 1939
will. This she did and the will was admitted to probate. But then the unexpected happened.
Over her vigorous opposition, the herein appellants filed a petition for reopening, and over
her vigorous objection, the same was granted and the case was reopened. Her motion for
reconsideration was denied. Is it her fault that the case was reopened? Is it her fault that the
order admitting the will to probate was set aside? That was a contingency which petitioner
never expected. Had appellants not filed their opposition to the probate of the will and had
they limited their objection to the intrinsic validity of said will, their plan to defeat the will and
secure the intestacy of the deceased would have perhaps been accomplished. But they failed
in their strategy. If said will was denied probate it is due to their own effort. It is now unfair to
impute bad faith petitioner simply because she exerted every effort to protect her own interest
and prevent the intestacy of the deceased to happen.
Having reached the foregoing conclusions, it is obvious that the court did not commit the
second and third errors imputed to it by the counsel for appellants. Indeed, petitioner cannot
be considered guilty or estoppel which would prevent her from seeking the probate of the
1918 will simply because of her effort to obtain the allowance of the 1939 will has failed
considering that in both the 1918 and 1939 wills she was in by her husband as his universal
heir. Nor can she be charged with bad faith far having done so because of her desire to
prevent the intestacy of her husband. She cannot be blamed being zealous in protecting her
interest.
The next contention of appellants refers to the revocatory clause contained in 1939 will of the
deceased which was denied probate. They contend that, notwithstanding the disallowance of
said will, the revocatory clause is valid and still has the effect of nullifying the prior of 1918.
Counsel for petitioner meets this argument by invoking the doctrine laid down in the case
of Samson vs. Naval, (41 Phil., 838). He contends that the facts involved in that case are on
all fours with the facts of this case. Hence, the doctrine is that case is here controlling.
There is merit in this contention. We have carefully read the facts involved in the Samson
case we are indeed impressed by their striking similarity with the facts of this case. We do not
need to recite here what those facts are; it is enough to point out that they contain many
points and circumstances in common. No reason, therefore, is seen by the doctrine laid down
in that case (which we quote hereunder) should not apply and control the present case.
A subsequent will, containing a clause revoking a previous will, having been
disallowed, for the reason that it was not executed in conformity with the provisions of
section 618 of the Code of Civil Procedure as to the making of wills, cannot produce
the effect of annulling the previous will, inasmuch as said revocatory clause is void.
(41 Phil., 838.)
Apropos of this question, counsel for oppositors make the remark that, while they do not
disagree with the soundness of the ruling laid down in the Samson case, there is reason to
abandon said ruling because it is archaic or antiquated and runs counter to the modern trend
prevailing in American jurisprudence. They maintain that said ruling is no longer controlling
but merely represents the point of view of the minority and should, therefore, be abandoned,
more so if we consider the fact that section 623 of our Code of Civil Procedure, which
governs the revocation of wills, is of American origin and as such should follow the prevailing
trend of the majority view in the United States. A long line of authorities is cited in support of
this contention. And these authorities hold the view, that "an express revocation is
immediately effective upon the execution of the subsequent will, and does not require that it
first undergo the formality of a probate proceeding". (p. 63, appellants' brief .
While they are many cases which uphold the view entertained by counsel for oppositors, and
that view appears to be in controlling the states where the decisions had been promulgated,
however, we are reluctant to fall in line with the assertion that is now the prevailing view in the
United States. In the search we have made of American authorities on the subject, we found
ourselves in a pool of conflicting opinions perhaps because of the peculiar provisions
contained in the statutes adopted by each State in the subject of revocation of wills. But the
impression we gathered from a review and the study of the pertinent authorities is that the
doctrine laid down in the Samson case is still a good law. On page 328 of the American
Jurisprudence Vol. 57, which is a revision Published in 1948, we found the following
passages which in our opinion truly reflect the present trend of American jurisprudence on
this matter affecting the revocation of wills:
SEC. 471. Observance of Formalities in Execution of Instrument. Ordinarily,
statutes which permit the revocation of a will by another writing provide that to be
effective as a revocation, the writing must be executed with the same formalities
which are required to be observed in the execution of a will. Accordingly, where,
under the statutes, attestation is necessary to the making of a valid will, an
unattested non testamentary writing is not effective to revoke a prior will. It has been
held that a writing fails as a revoking instrument where it is not executed with the
formalities requisite for the execution of a will, even though it is inscribed on the will
itself, although it may effect a revocation by cancellation or obliteration of the words
of the will. A testator cannot reserve to himself the power to modify a will by a written
instrument subsequently prepared but not executed in the manner required for a will.
SEC, 472. Subsequent Unexecuted, Invalid, or Ineffective Will or Codicil. A will
which is invalid because of the incapacity of the testator, or of undue influence can
have no effect whatever as a revoking will. Moreover, a will is not revoked by the
unexecuted draft of a later one. Nor is a will revoked by a defectively executed will or
codicil, even though the latter contains a clause expressly revoking the former will, in
a jurisdiction where it is provided by a controlling statute that no writing other than a
testamentary instrument is sufficient to revoke a will, for the simple reason that there
is no revoking will. Similarly where the statute provides that a will may be revoked by
a subsequent will or other writing executed with the same formalities as are required
in the execution of wills, a defectively executed will does not revoke a prior will, since
it cannot be said that there is a writing which complies with the statute. Moreover, a
will or codicil which, on account of the manner in which it is executed, is sufficient to
pass only personally does not affect dispositions of real estate made by a former will,
even though it may expressly purport to do so. The intent of the testator to revoke is
immaterial, if he has not complied with the statute. (57 Am. Jur., 328, 329.)
We find the same opinion in the American Law Reports, Annotated, edited in 1939. On page
1400, Volume 123, there appear many authorities on the "application of rules where second
will is invalid", among which a typical one is the following:
It is universally agreed that where the second will is invalid on account of not being
executed in accordance with the provisions of the statute, or where the testator who
has not sufficient mental capacity to make a will or the will is procured through undue
influence, or the such, in other words, where the second will is really no will, it does
not revoke the first will or affect it in any manner. Mort vs. Baker University (193-5)
229 Mo. App., 632, 78 S.W. (2d), 498.
These treaties cannot be mistaken. They uphold the view on which the ruling in the Samson
case is predicated. They reflect the opinion that this ruling is sound and good and for this
reason, we see no justification for abondoning it as now suggested by counsel for the
oppositors.
It is true that our law on the matter (sec. 623, Code Civil Procedure) provides that a will may
be some will, codicil, or other writing executed as proved in case of wills" but it cannot be said
that the 1939 will should be regarded, not as a will within the meaning of said word, but as
"other writing executed as provided in the case of wills", simply because it was denied
probate. And even if it be regarded as any other writing within the meaning of said clause,
there is authority for holding that unless said writing is admitted to probate, it cannot have the
effect of revocation. (See 57 Am. Jur. pp. 329-330).
But counsel for oppositors contemned that, regardless of said revocatory clause, said will of
1918 cannot still be given effect because of the presumption that it was deliberately revoked
by the testator himself. The oppositors contend that the testator, after executing the 1939 will,
and with full knowledge of the recovatory clause contained said will, himself deliberately
destroyed the original of the 1918 will, and for that reason the will submitted by petitioner for
probate in these proceedings is only a duplicate of said original.
There is no evidence which may directly indicate that the testator deliberately destroyed the
original of the 1918 will because of his knowledge of the revocatory clause contained in the
will he executed in 1939. The only evidence we have is that when the first will was executed
in 1918, Juan Salcedo, who prepared it, gave the original and copies to the testator himself
and apparently they remained in his possession until he executed his second will in 1939.
And when the 1939 will was denied probate on November 29, 1943, and petitioner was asked
by her attorney to look for another will, she found the duplicate copy (Exhibit A) among the
papers or files of the testator. She did not find the original.
If it can be inferred that the testator deliberately destroyed the 1918 will because of his
knowledge of the revocatory clause of the 1939 will, and it is true that he gave a duplicate
copy thereof to his wife, the herein petitioner, the most logical step for the testator to take is
to recall said duplicate copy in order that it may likewise be destroyed. But this was not done
as shown by the fact that said duplicate copy remained in the possession of petitioner. It is
possible that because of the long lapse of twenty-one (21) years since the first will was
executed, the original of the will had been misplaced or lost, and forgetting that there was a
copy, the testator deemed it wise to execute another will containing exactly the same
testamentary dispositions. Whatever may be the conclusion we may draw from this chain of
circumstances, the stubborn fact is that there is no direct evidence of voluntary or deliberate The remaining question to be determined refers to the sufficiency of the evidence to prove
destruction of the first will by the testator. This matter cannot be inference or conjectur. the due execution of the will.

Granting for the sake of argument that the earlier will was voluntarily destroyed by the
testator after the execution of the second will, which revoked the first, could there be any
doubt, under this theory, that said earlier will was destroyed by the testator in the honest
belief that it was no longer necessary because he had expressly revoked it in his will of
1939? In other words, can we not say that the destruction of the earlier will was but the
necessary consequence of the testator's belief that the revocatory clause contained in the
subsequent will was valid and the latter would be given effect? If such is the case, then it is
our opinion that the earlier will can still be admitted to probate under the principle of
"dependent relative revocation".
This doctrine is known as that of dependent relative revocation, and is usually
applied where the testator cancels or destroys a will or executes an instrument
intended to revoke a will with a present intention to make a new testamentary
disposition as a substitute for the old, and the new disposition is not made or, if
made, fails of effect for same reason. The doctrine is n limited to the existence of
some other document, however, and has been applied where a will was destroyed as
a consequence of a mistake of law. . . . (68 C.J.P. 799).
The will in question was attested, as required by law, by three witnesses, Lorenzo Morales,
Rufino Enriquez, and Angel Cuenca. The first two witnesses died before the commencement
of the present proceedings. So the only instrumental witness available was Angel Cuenca
and under our law and precedents, his testimony is sufficient to prove the due execution of
the will. However, petitioner presented not only the testimony of Cuenca but placed on the
witness stand Juan Salcedo, the notary public who prepared and notarized the will upon the
express desire and instruction of the testator, The testimony of these witnesses shows that
the will had been executed in the manner required by law. We have read their testimony and
we were impressed by their readiness and sincerity. We are convinced that they told the
truth.
Wherefore, the order appealed from is hereby affirmed, with costs against the
appellants.1wphl.nt
Paras, C.J. Feria, Pablo Bengzon, Tuason and Jugo JJ., concur.

The rule is established that where the act of destruction is connected with the making
of another will so as fairly to raise the inference that the testator meant the revocation
of the old to depend upon the efficacy of a new disposition intended to be substituted,
the revocation will be conditional and dependent upon the efficacy of the new
disposition; and if, for any reason, the new will intended to be made as a substitute is
inoperative, the revocation fails and the original will remains in full force. (Gardner,
pp. 232, 233.)

This is the doctrine of dependent relative revocation. The failure of a new

testamentary disposition upon whose validity the revocation depends, is equivalent to
the non-fulfillment of a suspensive conditions, and hence prevents the revocation of
the original will. But a mere intent to make at some time a will in the place of that
destroyed will not render the destruction conditional. It must appear that the
revocation is dependent upon the valid execution of a new will. (1 Alexander, p. 751;
Gardner, p. 253.)

We hold therefore, that even in the supposition that the destruction of the original will by the
testator could be presumed from the failure of the petitioner to produce it in court, such
destruction cannot have the effect of defeating the prior will of 1918 because of the fact that it
is founded on the mistaken belief that the will of 1939 has been validly executed and would
be given due effect. The theory on which this principle is predicated is that the testator did not
intend to die intestate. And this intention is clearly manifest when he executed two wills on
two different occasion and instituted his wife as his universal heir. There can therefore be no
mistake as to his intention of dying testate.
 EN BANC
G.R. No. 45629 September 22, 1938
ANTILANO G. MERCADO, petitioner,
vs.
ALFONSO SANTOS, Judge of First Instance of Pampanga, respondents.
ROSARIO BASA DE LEON, ET AL., intervenors.
Claro M. Recto and Benigno S. Aquino for petitioner.
Esperanza de la Cruz and Heracio Abistao for respondents.
Sotto and Sotto for intervenors.
LAUREL, J.:
On May 28, 1931, the petitioner herein filed in the Court of First Instance of Pampanga a
petition for the probate of the will of his deceased wife, Ines Basa. Without any opposition,
and upon the testimony of Benigno F. Gabino, one of the attesting witnesses, the probate
court, on June 27,1931, admitted the will to probate. Almost three years later, on April 11,
1934, the five intervenors herein moved ex parte to reopen the proceedings, alleging lack of
jurisdiction of the court to probate the will and to close the proceedings. Because filed ex
parte, the motion was denied. The same motion was filed a second time, but with notice to
the adverse party. The motion was nevertheless denied by the probate court on May 24,
1934. On appeal to this court, the order of denial was affirmed on July 26, 1935.
(Basa vs. Mercado, 33 Off. Gaz., 2521.)
It appears that on October 27, 1932, i. e., sixteen months after the probate of the will of Ines
Basa, intervenor Rosario Basa de Leon filed with the justice of the peace court of San
Fernando, Pampanga, a complaint against the petitioner herein, for falsification or forgery of
the will probated as above indicated. The petitioner was arrested. He put up a bond in the
sum of P4,000 and engaged the services of an attorney to undertake his defense. Preliminary
investigation of the case was continued twice upon petition of the complainant. The complaint
was finally dismissed, at the instance of the complainant herself, in an order dated December
8, 1932. Three months later, or on March 2, 1933, the same intervenor charged the petitioner
for the second time with the same offense, presenting the complaint this time in the justice of
the peace court of Mexico, Pampanga. The petitioner was again arrested, again put up a
bond in the sum of P4,000, and engaged the services of counsel to defend him. This second
complaint, after investigation, was also dismissed, again at the instance of the complainant
herself who alleged that the petitioner was in poor health. That was on April 27, 1933. Some
nine months later, on February 2, 1934, to be exact, the same intervenor accused the same
petitioner for the third time of the same offense. The information was filed by the provincial
fiscal of Pampanga in the justice of the peace court of Mexico. The petitioner was again
arrested, again put up a bond of P4,000, and engaged the services of defense counsel. The
case was dismissed on April 24, 1934, after due investigation, on the ground that the will
alleged to have been falsified had already been probated and there was no evidence that the
petitioner had forged the signature of the testatrix appearing thereon, but that, on the
contrary, the evidence satisfactorily established the authenticity of the signature aforesaid.
Dissatisfied with the result, the provincial fiscal, on May 9, 1934, moved in the Court of First
Instance of Pampanga for reinvestigation of the case. The motion was granted on May 23,
1934, and, for the fourth time, the petitioner was arrested, filed a bond and engaged the
services of counsel to handle his defense. The reinvestigation dragged on for almost a year
until February 18, 1934, when the Court of First Instance ordered that the case be tried on
the merits. The petitioner interposed a demurrer on November 25, 1935, on the ground that
the will alleged to have been forged had already been probated. This demurrer was overruled
on December 24, 1935, whereupon an exception was taken and a motion for reconsideration
and notice of appeal were filed. The motion for reconsideration and the proposed appeal
were denied on January 14, 1936. The case proceeded to trial, and forthwith petitioner
moved to dismiss the case claiming again that the will alleged to have been forged had
already been probated and, further, that the order probating the will is conclusive as to the
authenticity and due execution thereof. The motion was overruled and the petitioner filed with
the Court of Appeals a petition for certiorari with preliminary injunction to enjoin the trial court
from further proceedings in the matter. The injunction was issued and thereafter, on June 19,
1937, the Court of Appeals denied the petition for certiorari, and dissolved the writ of
preliminary injunction. Three justices dissented in a separate opinion. The case is now before
this court for review on certiorari.
Petitioner contends (1) that the probate of the will of his deceased wife is a bar to his criminal
prosecution for the alleged forgery of the said will; and, (2) that he has been denied the
constitutional right to a speedy trial.
1. Section 306 of our Code of Civil Procedure provides as to the effect of judgments.
SEC. 306. Effect of judgment. The effect of a judgment or final order in an action
or special proceeding before a court or judge of the Philippine Islands or of the
United States, or of any State or Territory of the United States, having jurisdiction to
pronounce the judgment or order, may be as follows.
1. In case of a judgment or order against a specific thing, or in respect to the probate
of a will, or the administration of the estate of a deceased person, or in respect to the
personal, political, or legal condition or relation of a particular person, the judgment or
order is conclusive upon the title of the thing, the will or administration, or the
condition or relation of the person Provided, That the probate of a will or granting of
letters of administration shall only be prima facie evidence of the death of the testator
or intestate.
xxx xxx xxx
(Emphasis ours.)
Section 625 of the same Code is more explicit as to the conclusiveness of the due execution
of a probate will. It says.
SEC. 625. Allowance Necessary, and Conclusive as to Execution. No will shall
pass either the real or personal estate, unless it is proved and allowed in the Court of
First Instance, or by appeal to the Supreme Court; and the allowance by the court of
a will of real and personal estate shall be conclusive as to its due execution.
(Emphasis ours.)
(In Manahan vs. Manahan 58 Phil., 448, 451), we held:
. . . The decree of probate is conclusive with respect to the due execution thereof 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. Sec. 625, Code of Civil
Procedure; Castaeda vs. Alemany, 3 Phil., 426; Pimentel vs. Palanca, 5 Phil., 436;
Sahagun vs. De Gorostiza, 7 Phil., 347; Limjuco vs. Ganara, 11 Phil., 393;
Montaano vs. Suesa, 14 Phil., 676; in re Estate of Johnson, 39 Phil, 156;
Riera vs. Palmaroli, 40 Phil., 105; Austria vs. Ventenilla, 21 Phil., 180;
Ramirez vs. Gmur, 42 Phil., 855; and Chiong Jocsoy vs. Vano, 8 Phil., 119.
In 28 R. C. L., p. 377, section 378, it is said.
The probate of a will by the probate court having jurisdiction thereof is usually
considered as conclusive as to its due execution and validity, and is also conclusive
that the testator was of sound and disposing mind at the time when he executed the
will, and was not acting under duress, menace, fraud, or undue influence, and that
the will is genuine and not a forgery. (Emphasis ours.)
As our law on wills, particularly section 625 of our Code of Civil Procedure aforequoted, was
taken almost bodily from the Statutes of Vermont, the decisions of the Supreme Court of the
State relative to the effect of the probate of a will are of persuasive authority in this
jurisdiction. The Vermont statute as to the conclusiveness of the due execution of a probated
will reads as follows.
SEC. 2356. No will shall pass either real or personal estate, unless it is proved and
allowed in the probate court, or by appeal in the county or supreme court; and the
probate of a will of real or personal estate shall be conclusive as to its due execution.
(Vermont Statutes, p. 451.)
Said the Supreme Court of Vermont in the case of Missionary Society vs. Eells (68 Vt., 497,
504): "The probate of a will by the probate court having jurisdiction thereof, upon the due
notice, is conclusive as to its due execution against the whole world. (Vt. St., sec. 2336;
Fosters Exrs. vs. Dickerson, 64 Vt., 233.)"
The probate of a will in this jurisdiction is a proceeding in rem. The provision of notice by
Publication as a prerequisite to the allowance of a will is constructive notice to the whole
world, and when probate is granted, the judgment of the court is binding upon everybody,
even against the State. This court held in the case of Manalo vs. Paredes and Philippine
Food Co. (47 Phil., 938):
The proceeding for the probate of a will is one in rem (40 Cyc., 1265), and the court
acquires jurisdiction over all the persons interested, through the publication of the
notice prescribed by section 630 of the Code of Civil Procedure, and any order that
may be entered therein is binding against all of them.
Through the publication of the petition for the probate of the will, the court acquires
jurisdiction over all such persons as are interested in said will; and any judgment that
may be rendered after said proceeding is binding against the whole world.
In Everrett vs. Wing (103 Vt., 488, 492), the Supreme Court of Vermont held.
In this State the probate of a will is a proceeding in rem being in form and substance
upon the will itself to determine its validity. The judgment determines the status of the
instrument, whether it is or is not the will of the testator. When the proper steps
required by law have been taken the judgment is binding upon everybody, and
makes the instrument as to all the world just what the judgment declares it to be.
(Woodruff vs. Taylor, 20 Vt., 65, 73; Burbeck vs. Little, 50 Vt., 713, 715; Missionary
Society vs. Eells, 68 Vt., 497, 504; 35 Atl., 463.) The proceedings before the probate
court are statutory and are not governed by common law rules as to parties or
causes of action. (Holdrige vs. Holdriges Estate, 53 Vt., 546, 550; Purdy vs. Estate of
Purdy, 67 Vt. 50, 55; 30 Atl., 695.) No process is issued against anyone in such
proceedings, but all persons interested in determining the state or conditions of the
instrument are constructively notified by the publication of notice as required by G. L.
3219. (Woodruff vs. Taylor, supra; In re Warners Estate 98 Vt., 254; 271; 127 Atl.,
362.)
Section 333, paragraph 4, of the Code of Civil Procedure establishes an incontrovertible
presumption in favor of judgments declared by it to be conclusive.
SEC. 333. Conclusive Presumptions. The following presumptions or deductions,
which the law expressly directs to be made from particular facts, are deemed
conclusive.
xxx xxx xxx
4. The judgment or order of a court, when declared by this code to be conclusive.
Conclusive presumptions are inferences which the law makes so peremptory that it will not
allow them to be overturned by any contrary proof however strong. (Brant vs. Morning
Journal Assn., 80 N.Y.S., 1002, 1004; 81 App. Div., 183; see, also, Joslyn vs. Puloer, 59
Hun., 129, 140, 13 N.Y.S., 311.) The will in question having been probated by a competent
court, the law will not admit any proof to overthrow the legal presumption that it is genuine
and not a forgery.
The majority decision of the Court of Appeals cites English decisions to bolster up its
conclusion that "the judgment admitting the will to probate is binding upon the whole world as
to the due execution and genuineness of the will insofar as civil rights and liabilities are
concerned, but not for the purpose of punishment of a crime." The cases of Dominus
Rex vs. Vincent, 93 English Reports, Full Reprint, 795, the first case being decided in 1721,
were cited to illustrate the earlier English decisions to the effect that upon indictment for
forging a will, the probating of the same is conclusive evidence in the defendants favor of its
genuine character. Reference is made, however, to the cases of Rex vs. Gibson, 168 English
Reports, Full Reprint, 836, footnote (a), decided in 1802, and Rex vs. Buttery and
Macnamarra, 168 English Reports, Full Reprint, 836, decided in 1818, which establish a
contrary rule. Citing these later cases, we find the following quotation from Black on
Judgments, Vol. II, page 764.
A judgment admitting a will to probate cannot be attacked collaterally although the
will was forged; and a payment to the executor named therein of a debt due the
decedent will discharge the same, notwithstanding the spurious character of the
instrument probated. It has also been held that, upon an indictment for forging a will,
the probate of the paper in question is conclusive evidence in the defendants favor of
its genuine character. But this particular point has lately been ruled otherwise.
It was the case of Rex vs. Buttery, supra, which induced the Supreme Court of
Massachussetts in the case of Waters vs. Stickney (12 Allen 1; 90 Am. Dec., 122) also cited
by the majority opinion, to hold that "according to later and sounder decisions, the probate,
though conclusive until set aside of the disposition of the property, does not protect the forger
from punishment." This was reproduced in 28 R.C.L., p. 376, and quoted in Barry vs. Walker
(103 Fla., 533; 137 So., 711, 715), and Thompson vs. Freeman (149 So., 740, 742), also
cited in support of the majority opinion of the Court of Appeals. The dissenting opinion of the
Court of Appeals in the instant case under review makes a cursory study of the statutes
obtaining in England, Massachussetts and Florida, and comes to the conclusion that the
decisions cited in the majority opinion do not appear to "have been promulgated in the face of
statutes similar to ours." The dissenting opinion cites Whartons Criminal Evidence (11th ed.,
sec. 831), to show that the probate of a will in England is only prima facie proof of the validity
of the will (Op. Cit. quoting Marriot vs. Marriot, 93 English Reprint, 770); and 21 L.R.A. (pp.
686689 and note), to show that in Massachussetts there is no statute making the probate of a
will conclusive, and that in Florida the statute(sec. 1810, Revised Statutes) makes the
probate conclusive evidence as to the validity of the will with regard to personal, and prima
facie as to real estate. The cases decided by the Supreme Court of Florida cited by the
majority opinion, supra, refer to wills of both personal and real estate.
The petitioner cites the case of State vs. McGlynn (20 Cal., 233, decided in 1862), in which
Justice Norton of the Supreme Court of California, makes the following review of the nature of
probate proceedings in England with respect to wills personal and real property.
In England, the probate of wills of personal estate belongs to the Ecclesiastical
Courts. No probate of a will relating to real estate is there necessary. The real estate,
upon the death of the party seized, passes immediately to the devisee under the will
if there be one; or if there be no will, to the heir at law. The person who thus becomes
entitled takes possession. If one person claims to be the owner under a will, and
another denies the validity of the will and claims to be the owner as heir at law, an
action of ejectment is brought against the party who may be in possession by the
adverse claimant; and on the trial of such an action, the validity of the will is
contested, and evidence may be given by the respective parties as to the capacity of
the testator to make a will, or as to any fraud practiced upon him, or as to the actual
execution of it, or as to any other circumstance affecting its character as a valid
devise of the real estate in dispute. The decision upon the validity of the will in such
action becomes res adjudicata, and is binding and conclusive upon the parties to that
action and upon any person who may subsequently acquire the title from either of
those parties; but the decision has no effect upon other parties, and does not settle
what may be called the status or character of the will, leaving it subject to be
enforced as a valid will, or defeated as invalid, whenever other parties may have a
contest depending upon it. A probate of a will of personal property, on the contrary, is
a judicial determination of the character of the will itself. It does not necessarily or
ordinarily arise from any controversy between adverse claimants, but is necessary in
order to authorize a disposition of the personal estate in pursuance of its provisions.
In case of any controversy between adverse claimants of the personal estate, the
probate is given in evidence and is binding upon the parties, who are not at liberty to
introduce any other evidence as to the validity of the will.
The intervenors, on the other hand, attempt to show that the English law on wills is different
from that stated in the case of State vs. McGlynn, supra, citing the following statutes.
1. The Wills Act, 1837 (7 Will. 4 E 1 Vict. c. 26).
2. The Court of Probate Act, 1857 (20 and 21 Vict. c. 77).
3. The Judicature Act, 1873 (36 and 37 Vict. c. 66).
The Wills Act of 1837 provides that probate may be granted of "every instrumental purporting
to be testamentary and executed in accordance with the statutory requirements . . . if it
disposes of property, whether personal or real." The Ecclesiastical Courts which took charge
of testamentary causes (Ewells Blackstone [1910], p. 460), were determined by the Court of
Probate Act of 1857, and the Court of Probate in turn was, together with other courts,
incorporated into the Supreme Court of Judicature, and transformed into the Probate Division
thereof, by the Judicature Act of 1873. (Lord Halsbury, The Laws of England[1910], pp.
151156.) The intervenors overlook the fact, however, that the case of Rex vs. Buttery and
Macnamarra, supra, upon which they rely in support of their theory that the probate of a
forged will does not protect the forger from punishment, was decided long before the
foregoing amendatory statutes to the English law on wills were enacted. The case of
State vs. McGlynn may be considered, therefore, as more or less authoritative on the law of
England at the time of the promulgation of the decision in the case of Rex vs. Buttery and
Macnamarra.
In the case of State vs. McGlynn, the Attorney General of California filed an information to set
aside the probate of the will of one Broderick, after the lapse of one year provided by the law
of California for the review of an order probating a will, in order that the estate may be
escheated to the State of California for the review of an probated will was forged and that
Broderick therefore died intestate, leaving no heirs, representatives or devisees capable of
inheriting his estate. Upon these facts, the Supreme Court of California held.
The fact that a will purporting to be genuine will of Broderick, devising his estate to a
devisee capable of inheriting and holding it, has been admitted to probate and
established as a genuine will by the decree of a Probate Court having jurisdiction of
the case, renders it necessary to decide whether that decree, and the will established
by it, or either of them, can be set aside and vacated by the judgment of any other
court. If it shall be found that the decree of the Probate Court, not reversed by the
appellate court, is final and conclusive, and not liable to be vacated or questioned by
any other court, either incidentally or by any direct proceeding, for the purpose of
impeaching it, and that so long as the probate stands the will must be recognized and
admitted in all courts to be valid, then it will be immaterial and useless to inquire
whether the will in question was in fact genuine or forged. (State vs. McGlynn, 20
Cal., 233; 81 Am. Dec., 118, 121.).
Although in the foregoing case the information filed by the State was to set aside the decree
of probate on the ground that the will was forged, we see no difference in principle between
that case and the case at bar. A subtle distinction could perhaps be drawn between setting
aside a decree of probate, and declaring a probated will to be a forgery. It is clear, however,
that a duly probated will cannot be declared to be a forgery without disturbing in a way the
decree allowing said will to probate. It is at least anomalous that a will should be regarded as
genuine for one purpose and spurious for another.
The American and English cases show a conflict of authorities on the question as to whether
or not the probate of a will bars criminal prosecution of the alleged forger of the probate will.
We have examined some important cases and have come to the conclusion that no fixed
standard maybe adopted or drawn therefrom, in view of the conflict no less than of diversity
of statutory provisions obtaining in different jurisdictions. It behooves us, therefore, as the
court of last resort, to choose that rule most consistent with our statutory law, having in view
the needed stability of property rights and the public interest in general. To be sure, we have
seriously reflected upon the dangers of evasion from punishment of culprits deserving of the
severity of the law in cases where, as here, forgery is discovered after the probate of the will
and the prosecution is had before the prescription of the offense. By and large, however, the
balance seems inclined in favor of the view that we have taken. Not only does the law
surround the execution of the will with the necessary formalities and require probate to be
made after an elaborate judicial proceeding, but section 113, not to speak of section 513, of
our Code of Civil Procedure provides for an adequate remedy to any party who might have
been adversely affected by the probate of a forged will, much in the same way as other
parties against whom a judgment is rendered under the same or similar circumstances.
(Pecson vs.Coronel, 43 Phil., 358.)The aggrieved party may file an application for relief with
the proper court within a reasonable time, but in no case exceeding six months after said
court has rendered the judgment of probate, on the ground of mistake, inadvertence, surprise
or excusable neglect. An appeal lies to review the action of a court of first instance when that
court refuses to grant relief. (Banco Espaol Filipino vs. Palanca, 37 Phil., 921; Philippine
Manufacturing Co. vs. Imperial, 47 Phil., 810; Samia vs. Medina, 56 Phil., 613.) After a
judgment allowing a will to be probated has become final and unappealable, and after the
period fixed by section 113 of the Code of Civil Procedure has expired, the law as an
expression of the legislative wisdom goes no further and the case ends there.
. . . The court of chancery has no capacity, as the authorities have settled, to judge or
decide whether a will is or is not a forgery; and hence there would be an incongruity
in its assuming to set aside a probate decree establishing a will, on the ground that
the decree was procured by fraud, when it can only arrive at the fact of such fraud by
first deciding that the will was a forgery. There seems, therefore, to be a substantial
reason, so long as a court of chancery is not allowed to judge of the validity of a will,
except as shown by the probate, for the exception of probate decrees from the
jurisdiction which courts of chancery exercise in setting aside other judgments
obtained by fraud. But whether the exception be founded in good reason or
otherwise, it has become too firmly established to be disregarded. At the present day,
it would not be a greater assumption to deny the general rule that courts of chancery
may set aside judgments procured by fraud, than to deny the exception to that rule in
the case of probate decrees. We must acquiesce in the principle established by the
authorities, if we are unable to approve of the reason. Judge Story was a staunch
advocate for the most enlarged jurisdiction of courts of chancery, and was compelled
to yield to the weight of authority. He says "No other excepted case is known to exist;
and it is not easy to discover the grounds upon which this exception stands, in point
of reason or principle, although it is clearly settled by authority. (1 Storys Eq. Jur. sec.
440.)" (State vs. McGlynn, 20 Cal., 233; 81 Am. Dec., 118, 129. See, also,
Tracy vs. Muir, 121 American State Reports, 118, 125.)
We hold, therefore, that in view of the provisions of sections 306, 333 and 625 of our Code of
Civil Procedure, criminal action will not lie in this jurisdiction against the forger of a will which
had been duly admitted to probate by a court of competent jurisdiction.
The resolution of the foregoing legal question is sufficient to dispose of the case. However,
the other legal question with reference to the denial to the accused of his right to a speedy
trial having been squarely raised and submitted, we shall proceed to consider the same in the
light of cases already adjudicated by this court.
2. The Constitution of the Philippines provides that "In all criminal prosecutions the accused .
. . shall enjoy the right . . . to have a speedy . . . trial. . . . (Art. III, sec. 1, par. 17. See, also,
G.O. No. 58, sec. 15, No. 7.) Similar provisions are to be found in the Presidents Instructions
to the Second Philippine Commission (par. 11), the Philippine Bill of July 1, 1902 (sec. 5, par.
2) and the Jones Act of August 29, 1916 (sec. 3, par. 2). The provisions in the foregoing
organic acts appear to have been taken from similar provisions in the Constitution of the
United States (6th Amendment) and those of the various states of the American Union. A
similar injunction is contained in the Malolos Constitution (art. 8, Title IV), not to speak of
other constitutions. More than once this court had occasion to set aside the proceedings in
criminal cases to give effect to the constitutional injunction of speedy trial. (Conde vs. Judge
of First Instance and Fiscal of Tayabas [1923], 45 Phil., 173; Conde vs. Rivera and
Unson[1924], 45 Phil., 650; People vs. Castaeda and Fernandez[1936]), 35 Off. Gaz., 1269;
Kalaw vs. Apostol, Oct. 15, 1937, G.R. No. 45591; Esguerra vs. De la Costa, Aug. 30,1938,
G.R. No. 46039.).
In Conde vs. Rivera and Unson, supra, decided before the adoption of our Constitution, we
said.
Philippine organic and statutory law expressly guarantee that in all criminal
prosecutions the accused shall enjoy the right to have a speedy trial. Aurelia Conde,
like all other accused persons, has a right to a speedy trial in order that if innocent
she may go free, and she has been deprived of that right in defiance of law.
Dismissed from her humble position, and compelled to dance attendance on courts
while investigations and trials are arbitrarily postponed without her consent, is
palpably and openly unjust to her and a detriment to the public. By the use of
reasonable diligence, the prosecution could have settled upon the appropriate
information, could have attended to the formal preliminary examination, and could
have prepared the case for a trial free from vexatious, capricious, and oppressive
delays.
In People vs. Castaeda and Fernandez, supra, this court found that the accused had not
been given a fair and impartial trial. The case was to have been remanded to the court a quo
for a new trial before an impartial judge. This step, however, was found unnecessary. A
review of the evidence convinced this court that a judgment of conviction for theft, as
charged, could not be sustained and, having in view the right to a speedy trial guaranteed by
the Constitution to every person accused of crime, entered a judgment acquitting the
accused, with costs de oficio. We said.
. . . The Constitution, Article III, section 1, paragraph 17, guarantees to every
accused person the right to a speedy trial. This criminal proceeding has been
dragging on for almost five years now. The accused have twice appealed to this court
for redress from the wrong that they have suffered at the hands of the trial court. At
least one of them, namely Pedro Fernandez alias Piro, had been con-fined in prison
from July 20, 1932 to November 27, 1934, for inability to post the required bond of
P3,000 which was finally reduced to P300. The Government should be the last to set
an example of delay and oppression in the administration of justice and it is the moral
and legal obligation of this court to see that the criminal proceedings against the
accused come to an end and that they be immediately dis-charged from the custody
of the law. (Conde vs. Rivera and Unson, 45 Phil., 651.)
In Kalaw vs. Apostol, supra, the petitioner invoked and this court applied and gave effect to
the doctrines stated in the second Conde case, supra. In granting the writs prayed for, this
court, after referring to the constitutional and statutory provisions guaranteeing to persons
accused of crime the right to a speedy trial, said:
Se infiere de los preceptos legales transcritos que todo acusado en causa criminal
tiene derecho a ser juzgado pronta y publicamente. Juicio rapido significa un
juicioque se celebra de acuerdo con la ley de procedimiento criminal y los
reglamentos, libre de dilaciones vejatorias, caprichosas y opersivas
(Burnett vs.State, 76 Ark., 295; 88S. W., 956; 113 AMSR, 94; Stewart vs. State, 13
Ark., 720; Peo. vs. Shufelt, 61 Mich., 237; 28 N. W., 79; Nixon vs. State, 10 Miss.,
497; 41 AMD., 601; State vs. Cole, 4 Okl. Cr., 25; 109 P., 736; State vs. Caruthers, 1
Okl. Cr., 428; 98 P., 474; State vs. Keefe, 17 Wyo., 227, 98 p., 122;22 IRANS, 896;
17 Ann. Cas., 161). Segun los hechos admitidos resulta que al recurrente se le
concedio vista parcial del asunto, en el Juzgado de Primera Instancia de Samar, solo
despues de haber transcurrido ya mas de un ao y medio desde la presentacion de
la primera querella y desde la recepcion de la causa en dicho Juzgado, y despues de
haberse transferido dos veces la vista delasunto sin su consentimiento. A esto debe
aadirse que laprimera transferencia de vista era claramente injustificadaporque el
motivo que se alego consistio unicamente en laconveniencia personal del ofendido y
su abogado, no habiendose probado suficientemente la alegacion del primero de
quese hallaba enfermo. Es cierto que el recurrente habia pedido que, en vez de
sealarse a vista el asunto para el mayo de 1936, lo fuera para el noviembre del
mismo ao; pero,aparte de que la razon que alego era bastante fuerte porquesu
abogado se oponia a comparecer por compromisos urgentes contraidos con
anterioridad y en tal circunstancia hubiera quedado indefenso si hubiese sido
obligado a entraren juicio, aparece que la vista se pospuso por el Juzgado amotu
proprio, por haber cancelado todo el calendario judicial preparado por el Escribano
para el mes de junio. Declaramos, con visto de estos hechos, que al recurrents se
leprivo de su derecho fundamental de ser juzgado prontamente.
Esguerra vs. De la Costa, supra, was a petition for mandamus to compel the respondent
judge of the Court of First Instance of Rizal to dismiss the complaint filed in a criminal case
against the petitioner, to cancel the bond put up by the said petitioner and to declare the
costs de oficio. In accepting the contention that the petitioner had been denied speedy trial,
this court said:
Consta que en menos de un ao el recurrente fue procesado criminalmente por el
alegado delito de abusos deshonestos, en el Juzgado de Paz del Municipio de
Cainta, Rizal. Como consecuencia de las denuncias que contra el se presentaron fue
arrestado tres veces y para gozar de libertad provisional, en espera de los juicios, se
vio obligado a prestartres fianzas por la suma de P1,000 cada una. Si no se da fin al
 proceso que ultimamente se ha incoado contra el recurrente la incertidumbre
continuara cerniendose sobre el y las consiguientes molestias y preocupaciones
continuaran igualmente abrumandole. El Titulo III, articulo 1, No. 17,de la
Constitucion preceptua que en todo proceso criminalel acusado tiene derecho de ser
juzgado pronta y publicamente. El Articulo 15, No. 7, de la Orden General No. 58
dispone asimismo que en las causas criminales el acusado tendra derecho a ser
juzgado pronta y publicamente. Si el recurrente era realmente culpable del delito que
se le imputo, tenia de todos modos derechos a que fuera juzgado pronta y
publicamente y sin dilaciones arbitrarias y vejatorias. Hemos declarado
reiteradamente que existe un remedio positivo para los casos en que se viola el
derecho constitucional del acusado de ser juzgado prontamente. El acusado que
esprivado de su derecho fundomental de ser enjuiciado rapidamente tiene derecho a
pedir que se le ponga en libertad, si estuviese detenido, o a que la causa que pende
contra el sea sobreseida definitivamente. (Conde contra Rivera y Unson, 45 Jur. Fil.,
682; In the matter of Ford [1911], 160 Cal., 334; U. S. vs. Fox [1880], 3 Mont., 512;
Kalaw contra Apostol, R. G. No. 45591, Oct. 15, 1937; Pueblo contra Castaeda y
Fernandez, 35 Gac. Of., 1357.)
We are again called upon to vindicate the fundamental right to a speedy trial. The facts of the
present case may be at variance with those of the cases hereinabove referred to.
Nevertheless, we are of the opinion that, under the circumstances, we should consider the
substance of the right instead of indulging in more or less academic or undue factual
differentiations. The petitioner herein has been arrested four times, has put up a bond in the
sum of P4,000 and has engaged the services of counsel to undertake his defense an equal
number of times. The first arrest was made upon a complaint filed by one of the intervenors
herein for alleged falsification of a will which, sixteen months before, had been probated in
court. This complaint, after investigation, was dismissed at the complainant's own request.
The second arrest was made upon a complaint charging the same offense and this
complaint, too, was dismissed at the behest of the complainant herself who alleged the quite
startling ground that the petitioner was in poor health. The third arrest was made following the
filing of an information by the provincial fiscal of Pampanga, which information was
dismissed, after due investigation, because of insufficiency of the evidence. The fourth arrest
was made when the provincial fiscal secured a reinvestigation of the case against the
petitioner on the pretext that he had additional evidence to present, although such evidence
does not appear to have ever been presented.
It is true that the provincial fiscal did not intervene in the case until February 2, 1934, when he
presented an information charging the petitioner, for the third time, of the offense of
falsification. This, however, does not matter. The prosecution of offenses is a matter of public
interest and it is the duty of the government or those acting in its behalf to prosecute all cases
to their termination without oppressive, capricious and vexatious delay. The Constitution does
not say that the right to a speedy trial may be availed of only where the prosecution for crime
is commenced and undertaken by the fiscal. It does not exclude from its operation cases
commenced by private individuals. Where once a person is prosecuted criminally, he is
entitled to a speedy trial, irrespective of the nature of the offense or the manner in which it is
authorized to be commenced. In any event, even the actuations of the fiscal himself in this
case is not entirely free from criticism. From October 27, 1932, when the first complaint was
filed in the justice of the peace court of San Fernando, to February 2, 1934, when the
provincial fiscal filed his information with the justice of the peace of Mexico, one year, three
months and six days transpired; and from April 27, 1933, when the second criminal complaint
was dismissed by the justice of the peace of Mexico, to February 2, 1934, nine months and
six days elapsed. The investigation following the fourth arrest, made after the fiscal had
secured a reinvestigation of the case, appears also to have dragged on for about a year.
There obviously has been a delay, and considering the antecedent facts and circumstances
within the knowledge of the fiscal, the delay may not at all be regarded as permissible.
In Kalaw vs. Apostol, supra, we observed that the prosecuting officer all prosecutions for
public offenses (secs. 1681 and 2465 of the Rev. Adm. Code), and that it is his duty to see
that criminal cases are heard without vexatious, capricious and oppressive delays so that the
courts of justice may dispose of them on the merits and determine whether the accused is
guilty or not. This is as clear an admonition as could be made. An accused person is entitled
to a trial at the earliest opportunity. (Sutherland on the Constitution, p. 664; United
States vs. Fox, 3 Mont., 512.) He cannot be oppressed by delaying he commencement of trial
for an unreasonable length of time. If the proceedings pending trial are deferred, the trial itself
is necessarily delayed. It is not to be supposed, of course, that the Constitution intends to
remove from the prosecution every reasonable opportunity to prepare for trial. Impossibilities
cannot be expected or extraordinary efforts required on the part of the prosecutor or the
court. As stated by the Supreme Court of the United States, "The right of a speedy trial is
necessarily relative. It is consistent with delays and depends upon circumstances. It secures
rights to a defendant. It does not preclude the rights of public justice." (Beavers vs. Haubert
[1905], 198 U. S., 86; 25 S. Ct., 573; 49 Law. ed., 950, 954.).
It may be true, as seems admitted by counsel for the intervenors, in paragraph 8, page 3 of
his brief, that the delay was due to "the efforts towards reaching an amicable extrajudicial
compromise," but this fact, we think, casts doubt instead upon the motive which led the
intervenors to bring criminal action against the petitioner. The petitioner claims that the
intention of the intervenors was to press upon settlement, with the continuous threat of
criminal prosecution, notwithstanding the probate of the will alleged to have been falsified.
Argument of counsel for the petitioner in this regard is not without justification. Thus after the
filing of the second complaint with the justice of the peace court of Mexico, complainant
herself, as we have seen, asked for dismissal of the complaint, on the ground that "el
acusado tenia la salud bastante delicada," and, apparently because of failure to arrive at any
settlement, she decided to renew her complaint.
Counsel for the intervenors contend and the contention is sustained by the Court of
Appeals that the petitioner did not complain heretofore of the denial of his constitutional
right to a speedy trial. This is a mistake. When the petitioner, for the fourth time, was ordered
arrested by the Court of First Instance of Pampanga, he moved for reconsideration of the
order of arrest, alleging, among other things, "Que por estas continuas acusaciones e
investigaciones, el acusado compareciente no obstante su mal estado de salud desde el ao
1932 en que tuvo que ser operado por padecer de tuberculosis ha tenido que sostener
litigios y ha sufrido la mar de humiliaciones y zozobras y ha incudo en enormes gastos y
molestias y ha desatendido su quebrantada salud." The foregoing allegation was inserted on
page 6 of the amended petition for certiorari presented to the Court of Appeals. The
constitutional issue also appears to have been actually raised and considered in the Court of
Appeals. In the majority opinion of that court, it is stated:

Upon the foregoing facts, counsel for the petitioner submits for the consideration of
this court the following questions of law: First, that the respondent court acted
arbitrarily and with abuse of its authority, with serious damage and prejudice to the
rights and interests of the petitioner, in allowing that the latter be prosecuted and
arrested for the fourth time, and that he be subjected, also for the fourth time, to a
preliminary investigation for the same offense, hereby converting the court into an
instrument of oppression and vengeance on the part of the alleged offended parties,
Rosario Basa et al.; . . . .

And in the dissenting opinion, we find the following opening paragraph:

We cannot join in a decision declining to stop a prosecution that has dragged for
about five years and caused the arrest on four different occasions of a law abiding
citizen for the alleged offense of falsifying a will that years be competent jurisdiction.

From the view we take of the instant case, the petitioner is entitled to have the criminal
proceedings against him quashed. The judgment of the Court of Appeals is hereby reversed,
without pronouncement regarding costs. So ordered.

Avancea, C.J., Villa-Real, Imperial, Diaz and Concepcion, JJ., concur.

 FIRST DIVISION
G.R. No. 95329 January 27, 1993
HERACIO R. REVILLA, petitioner,
vs.
HON. COURT OF APPEALS, FORTUNATO REVILLA, LUZ REVILLA DAVID, LORETO
REVILLA GUTIERREZ, VENERANDA REVILLA MANIQUEZ, NICASIO REVILLA,
PERFECTA REVILLA BALACANIA, JUSTINA REVILLA DEL ROSARIO and AGRIPINA
REVILLA CHACON, respondents.
Manahan, Conrado De Vera, Aquino & Associates Law Offices for petitioner.
Abad, Bautista & Associates for private respondents.
GRIO-AQUINO, J.:
This is a petition for review of the decision dated September 13, 1990 of the Court of Appeals
in CA-G.R. CV No. 18190 affirming the decision of the Regional Trial Court of Manila, Branch
39, in Special Proceeding No. 86-38444 which disallowed the second will supposedly
executed on September 13, 1982 by the late Don Cayetano Revilla whose first Will dated
January 28, 1978 had been probated on March 21, 1980 on his own petition in Special
Proceeding No. 128828 of the same court, while he was still alive.
In our resolution of November 19, 1990, we denied the petition for review for it raises only
factual issues. However, upon the petitioner's motion for reconsideration, we set aside that
resolution and gave due course to the petition so that the parties may argue their respective
positions with more depth and scope. After a more thorough consideration of those
arguments, we are persuaded that the decision of the Court of Appeals should not be
changed.
Don Cayetano Revilla y De la Fuente owned two valuable pieces of land with buildings on
Calle Azcarraga (now C.M. Recto Street) in the City of Manila, and six (6) parcels of land in
his hometown of San Miguel, Bulacan. These properties, now worth some P30 million, are
registered in his name and more particularly described as follows:
a) TRANSFER CERTIFICATE OF TITLE NO. 76620 (not TCT No. 170750-
ind.) REGISTRY OF DEEDS FOR THE CITY OF MANILA
A PARCEL OF LAND (Lot. No. 22 of Block No. 2565 of the
Cadastral Survey of the City of Manila, Cadastral Case No.
46, G.L.R.O. Cadastral Record No. 229) with the buildings
and other improvements now found thereon, situated on the
SW, line of Calle Azcarraga, District of Quiapo, . . .
containing an area of ONE THOUSAND ONE HUNDRED
NINETY THREE SQUARE METERS AND SEVENTY
SQUARE DECIMETERS (1,193.70), more or less, Assessed
value P1,834,980.00.
b) TRANSFER CERTIFICATE OF TITLE NO. 66173 (now TCT No. 170751-
ind.) REGISTRY OF DEEDS FOR THE CITY OF MANILA
A PARCEL OF LAND ( Lot No. 24 of Block No. 2565 of the
Cadastral Survey of the City of Manila, Cadastral Case No.
46, G.L.R.O. Cadastral Record No. 229) with the buildings
and improvements now found thereon, situated on the SW.
line of Calle Azcarraga; District of Quiapo. . . . containing an
area of SEVEN HUNDRED SQUARE METERS AND
SEVENTY SQUARE DECIMETERS (700.70), MORE OR
LESS.
Assessed value P3,297,150.00
c) TRANSFER CERTIFICATE OF TITLE NO. T-192136 REGISTRY OF
DEEDS FOR THE PROVINCE OF BULACAN
A parcel of land (Lot 1245-A-6 of the subd. plan (LRC) Psd-
177051, being a portion of Lot 1245-A, Psd-11366, LRC
Cad. Rec. No. 700), situated in the Barrio of Salacot, Mun. of
San Miguel, Prov. of Bulacan, Island of Luzon. . . .
containing an area of TEN THOUSAND (10,000) SQUARE
METERS, more or less.
Assessed value P4.000.00
d) TRANSFER CERTIFICATE OF TITLE NO. T-192137 REGISTRY OF
DEEDS FOR THE PROVINCE OF BULACAN
A parcel of land [Lot 1245-A-7 of the subd. plan (LRC) Psd-
177051, being a portion of Lot 1245-A, Psd-11366, LRC
Cad. Rec. No. 700], situated in the Barrio of Salacot, Mun. of
San Miguel, Prov. of Bulacan, Island of Luzon, . . .
containing an area of SEVEN THOUSAND EIGHT
 HUNDRED NINETY (7,890) SQUARE METERS, more or
less.
Assessed value P3,790.00
e) TRANSFER CERTIFICATE OF TITLE NO. T-22049 REGISTRY OF
DEEDS FOR THE PROVINCE OF BULACAN
A parcel of land (Lot 1245-A-9 of the subd. plan (LRC) Psd-
177051, being a portion of Lot 1245-A, Psd-11366, LRC
Cad. Rec. No. 700), situated in the Barrio of Salacot,
Municipality of San Miguel, Prov. of Bulacan, . . . containing
an area of ONE THOUSAND FIVE HUNDRED FOURTEEN
(1,514) SQUARE METERS, more or less.
Assessed value P4,000.00
f) TRANSFER CERTIFICATE OF TITLE NO. 22263 REGISTRY OF DEEDS
FOR THE PROVINCE OF BULACAN
A parcel of land (Lot No. 722 of the Cadastral Survey of San
Miguel), situated in the Municipality of San Miguel. . . .
containing an area of SEVENTEEN THOUSAND AND
EIGHTY SIX (17,086) SQUARE METERS, more or less.
Assessed value P4,190.00
g) TRANSFER CERTIFICATE OF TITLE NO. T-242301 REGISTRY OF
DEEDS FOR THE PROVINCE OF BULACAN
A parcel of land (Lot 108 of the Cad. Survey of San Miguel),
situated in the Municipality of San Miguel. . . . containing an
area of FIVE HUNDRED AND SEVENTY THREE SQUARE
METERS more or less.
Assessed value P8,600.00
h) Cemetery lots with a mausoleum (Lots Nos. 66, 67, 68, 69, 70 and 71,
Block No. 3) situated at the Sta. Rita Memorial Park, San Miguel, Bulacan
(no commercial value). (pp. 63-64, Rollo.)
On January 28, 1978, Don Cayetano Revilla, a bachelor, without issue nor any surviving
ascendants, executed a last will and testament bequeathing all his properties to his nine (9)
nephews and nieces, the parties herein, who are full blood brothers and sisters, including the
petitioner, Heracio Revilla. To each of them, he bequeathed an undivided one-tenth (1/10) of
his estate reserving the last tenth for masses to be said after his death, and for the care of
the religious images which he kept in a chapel in San Miguel, Bulacan, where masses could
be held also (p. 126, Records).
During his lifetime, Don Cayetano had himself sought the probate of his will and on March 21,
1980 the Court of First Instance of Manila, Branch X, after due hearing in Special Proceeding
No. 128828, allowed and admitted said will to probate.
On November 19, 1981, however, the City Hall of Manila was destroyed by fire. The records
of Special Proceeding No. 128828 also went up in flames. Shortly thereafter, a petition for the
reconstitution of the records of Special Proceeding No. 128828 was filed, and after a proper
hearing wherein Don Cayetano testified again, the petition for reconstitution was granted.
(Exh. "34"). (pp. 51-52, 179, Rollo.)
Don Cayetano died on November 11, 1986 at the age of 91.
On November 19, 1986, Heracio Revilla, the oldest nephew, filed a petition for probate of
another will, allegedly executed by Don Cayetano on September 13, 1982 wherein he
(Heracio) was instituted as sole heir of his uncle's estate and executor of the will.
The probate of the second will was opposed by Heracio's eight (8) brothers and sisters, the
private respondents herein. As grounds for their opposition, they alleged:
. . . a) that on March 21, 1980 in Special Proceeding No. 128828, the then
Court of First Instance of Manila, Branch 10, allowed and admitted to probate
the last will and testament of the deceased Cayetano Revilla and that since
then and up to the time of his death, Cayetano Revilla never informed that he
revoked the will dated January 28, 1978; (b) that the will sought to be
probated was not executed in accordance with law and that the signature of
Cayetano Revilla was different from his usual and customary signature; (c)
that when the will was allegedly executed the decedent was already of
unsound mind or otherwise mentally incapable of making a will or was
already incompetent and could not, without outside aid, take care of himself
and manage his properties becoming thereby an easy prey of deceit and
exploitation; d) that the alleged will was executed with undue and improper
pressure and influence on the part of he beneficiaries thereon or some other
persons for their benefit; e) that the will is void and ineffective for the reason
that it was executed under duress or the influence of fear or of threats; and f)
that the decedent acted by mistake and the signatures in the alleged will
were procured by fraud or trick, and he did not intend that the instrument
should be his will at the time of fixing (sic) his signatures thereto (Opposition
to Probate of Alleged Will, pp. 7-8, Records).
The private respondents also opposed Heracio's petition for appointment as executor and/or
special administrator of the estate on the ground that the alleged will is null and void, hence
the designation therein of Heracio as executor is likewise null and void, and that moreover,
he is unfit for the trust (pp. 9-12. Records).
In an order dated May 7, 1987, the lower court held in abeyance the resolution of the issue
with regard to the propriety of Heracio's being appointed as executor (pp. 34-36, Records),
but ordered the parties to present their evidence pro and con vis-a-vis the probate of the
second will (Ibid).
On December 1, 1987, the trial court rendered a decision disallowing the second will and,
accordingly, dismissed the case with costs against the petitioner (Decision. pp. 144-184,
Records; pp. 52-53. Rollo.)
On appeal to the Court of Appeals (CA-G.R. CV No. 18190, Sept. 19, 1990), the decision of
the lower court was affirmed. This petition for review was filed by Heracio under Rule 45 of
the Rules of Court.
The lone issue in this case is whether the Court of Appeals (and the trial court) erred in
disallowing the alleged second will of Don Cayetano Revilla.
After a careful examination of the records, we share the appellate court's doubts regarding
the authenticity and due execution of the second will. Indeed, when Don Cayetano testified
on November 27, 1982 in the reconstitution proceedings, he was unaware of the second will
which he supposedly made only two months previous on September 13, 1982. He identified
his first will and declared that it was his true and only will. He denied having subsequently
made another will. He could not have executed a second will on September 13, 1982
because he was sick in the hospital at that time for two (2) months before October 21,
1982, or, in August to September 1982, and he did not, and could not, sign any papers while
he was confined in the hospital.
ATTY. DAVID
May I request that this letter dated October 21, 1982, be
marked Exhibit "C" . . .
xxx xxx xxx
By the way Mr. Revilla, will you tell us whether you can still
read when you signed this letter?
A Yes, I can.
Q Did you read the contents of this letter?
A Yes, I did.
Q When you were sick, before you signed this letter on
October 21, 1982, were you confined at the hospital?
A Yes.
Q How long were you confined at the hospital, was it for
one month?
A More than one month, may be two months.
Q When you were in the hospital you cannot sign
because you were sick?
A No, I cannot sign.
xxx xxx xxx
Q Will you tell us Don Cayetano if you ever executed a
last will and testament after this one has been probated by
the Court?
A None, sir. (pp. 20-30, tsn, November 27, 1982.)
He recognized the original will and acknowledged that he signed it.
ATTY. DAVID
. . . we were granted by the Court permission to come here
to find out from you about your will approved by the Court
which was burned which needs to be reconstituted which
Atty. Dacanay undertook as your counsel and I was included
because your heirs requested me, . . . Since the documents
were burned, we have here a brown envelope which states
on its face "Buksan ito pagkalibing ko" then a signature
Cayetano Revilla that one in the Court which was
approved by the Court we would like to request from you if
this is the envelope which contains a copy of the will and if
this is your signature?
xxx xxx xxx
 Q And at the back of this envelope are four signatures,
are these your signatures?
A (Looking over the four signatures at the back of the
envelope) Yes, these are all my signatures.
Q And your instructions were to open this envelope . . .
"Buksan ito pagkalibing ko."
A Yes, that is right.
Q And since you are still alive you asked the Court that
your last will and testament be approved and allowed and
what is in the last will and testament is what will prevail?
A Yes, sir. (pp. 119-120, Rollo; Emphasis ours.)
He identified his first will and directed Atty. David to deliver it to the Court: "siyang ibigay sa
husgado" (p. 122. Rollo).
ATTY. DAVID
Now that I have told you in the presence of your grandson-
in-law, Atty. Latosa, that the last will and testament which the
court admitted and allowed to probate was burned, why I
asked you if this is the envelope and you remember this is
the envelope and you said you do, and that the five
signatures appearing in this envelope are your signatures,
now are you willing to have this envelope opened?
A Yes, kung anong nandiyan, siyang ibigay sa husgado.
(p. 122, Rollo.)
Although the envelope containing a copy of the first will was sealed, with instructions to open
it after his funeral, Don Cayetano wanted "to open it now" (p. 123, Rollo).
ATTY. LATOSA
Can you please read what is written in that envelope which
you allowed to be opened.
A Yes, "buksan ito pagkalibing ko."
ATTY. DAVID
Do you want to open this now?
A Yes.
Q Do you wish to open this envelope now?
A Yes, I want to open it now.
(p. 23, Rollo.)
Don Cayetano declared that he understood that the document inside the envelope was his
will ["naiintindihan ko po iyon" (p. 131, Rollo)].
Q This envelope which contained the last will and
testament which I took the contents in your presence and in
the presence of the other representation here including the
representatives of the Court, the document contained therein
is entitled, "Unang Pahina, Huling Habilin Ni Don Cayetano
Revilla," consisting of fourteen pages, the title means that
this is your last will and testament?
A Yes, Naiintindihan ko po iyon.
Q And you executed this on the 28 of January as
appearing . . . 28th of January 1978, as appearing on the
13th page of this last will and testament?
A Yes.
Q And all pages of this last will and testament were all
signed by you which reads Cayetano Revilla, will you go
over these fourteen pages and tell us if the signatures here
reading Cayetano Revilla are your signatures?
A (After going over the document, page by page and
looking at the signature reading Cayetano Revilla in every
page) Yes, these are all my signatures, the ones reading
Cayetano Revilla. (p 131, Rollo; Emphasis supplied.)
He recognized himself and his lawyer, Attorney Benjamin Dacanay, in the pictures that were
taken during the signing of his first will.
 Q Now, in this envelope there are pictures five pictures in
all, will you go over these and tell us if you can remember
any of those persons appearing in the pictures?
A This one, (testator pointing to a person in the picture) is
Mr. Dacanay.
ATTY. DAVID
May I request that this picture wherein Don Cayetano Revilla
identified Atty. Dacanay, be marked as Exhibit "D".
There is a person in this picture, the one second from the
left, will you go over it and see if you remember that person?
A I am that person.
Q Now in this second picture, do you recognize anybody
here?
A Yes, I can recognize myself when I was signing the will.
Q Who else do you know is present in that picture?
A This one, he is Mr. Dacanay.
Q How about the other one?
A I don't know the others. (p. 133, Rollo; Emphasis
supplied.)
Don Cayetano assured Attorney David that his original will was his "genuine will and
testament and not changed" (p. 134, Rollo).
ATTY. DAVID
xxx xxx xxx
We are doing this Mr. Revilla because in case there will be
an opposition to this last will and testament we can prove
that this is the genuine will and testament and not changed.
A Yes, that is true sir, that is the truth. (p. 134, Rollo.)
He declared that he did not execute another last will and testament after the original will had
been probated.
Q Will you tell us Don Cayetano if you ever executed a
last will and testament after this one has been probated by
the Court?
A None, sir. (p. 135. Rollo.)
The petitioner's contention that Don Cayetano's denial constitutes "negative declaration"
which has no "probative value under the rules of evidence" (p. 73, Rollo) is not correct. Don
Cayetano's assertion that he did not execute another will, was not negative evidence.
Evidence is negative when the witness states that he did not see or know the occurrence of a
fact, and positive when the witness affirms that a fact did or did not occur (2 Moore an Facts,
p 1338). Don Cayetano's declaration that he did not execute a second will, constitutes
positive evidence of a fact personally known to himself: that he did not make a second will.
As correctly held by the Court of Appeals:
This categorical denial by the late Cayetano Revilla must be believed by
everybody. If he denied having executed another will, who are we to insist
that he made another or second will after the probate of his will dated
January 28, 1978? The testimonies of the alleged notary public as well as the
three instrumental witnesses of the alleged second will of the late Cayetano
Revilla cannot outweigh the denial of the late Cayetano Revilla. . . . . (p.
95, Rollo.)
Significantly, although the petitioner opposed the reconstitution of Don Cayetano's first will,
he did not reveal the second will which Don Cayetano supposedly made only two (2) months
before he testified in the reconstitution proceeding. Why was the second will kept under
wraps? Did Heracio fear that if Don Cayetano were confronted with the document, he would
have disowned it? The explanation of the petitioner that an inquiry into the existence of the
second will "was totally uncalled for, immaterial, and irrelevant" (p. 96, Rollo), is
unconvincing. For if the second will already existed on November 27, 1982, it would have
been Heracio's strongest argument against the reconstitution of the probate of the first will.
The petitioner's argument that Don Cayetano's testimony is inadmissible because petitioner's
counsel, Attorney Layosa, had no opportunity to
cross-examine him (p. 146, Rollo), does not wash. The opportunity was there all the time.
Attorney Layosa simply made no attempt to exercise his right to
cross-examine Don Cayetano.
If Don Cayetano's testimony was "an honest mistake due to a misapprehension of fact" as
the petitioner insists (p. 35, Rollo), that mistake would have been rectified by inviting his
attention to the second will. It seems, however, that Attorney Layosa was under constraint not
to disclose the second will to Don Cayetano.
Even the letter that Don Cayetano supposedly sent to the court disowning the petition for
reconstitution of the records of the first probate proceeding, did not disclose that he had
already made another will. As pointedly observed by the Court of Appeals, if Don Cayetano
were aware that he made a second will, he "could have easily told the Court that the
reconstitution proceeding was useless" because he had already made a second will revoking
the first
(pp. 54-55, Rollo).
The testimonies of the notary and attesting witnesses and even the photographs of what
purported to be the signing of the second will were not given credit by the trial court and the
Court of Appeals. The court's observation that the photographs do not show the nature of the
document that was being signed, nor the date of the transaction, is valid. The lower court's
distrust for the testimonies of the attesting witnesses to the second will deserves our highest
respect (People vs. Sarol, 139 SCRA 125; Guita vs. CA., 139 SCRA 576; People vs. Cabanit,
139 SCRA 94).
Since the execution of the second will could not have occurred on the date (September 13,
1982) appearing therein (for Don Cayetano was admittedly sick in the hospital then) it must
have been procured at the time when the testator was a virtual prisoner,
held incommunicado, in his house. The Honorable Judge (later Court of Appeals Justice)
Eduardo Bengson had to issue an order commanding the petitioner to allow his eight (8)
brothers and sisters to visit Don Cayetano. Only then were they able to penetrate the iron
curtain that Heracio had placed around their uncle. A videotape, taken during their pleasant
visit with the old man and shown in court, belied Heracio's allegation that Don Cayetano was
displeased with his said nephews and nieces, that was why he left them out of his second
will.
Despite Judge Bengzon's order, Heracio did not cease his efforts to monopolize Don
Cayetano and his estate. To isolate Don Cayetano and make him inacessible to the private
respondents, Heracio transferred him from his own house on Claro M. Recto Avenue in
Manila to Heracio's house in Novaliches, Quezon City.
The execution of the second will in an environment of secrecy and seclusion and the
disinheritance of his eight (8) other nephews and nieces of whom he was equally fond,
justified the trial court's and the Court of Appeals' belief that undue influence was exercised
by Horacio over Don Cayetano to make him sign the second will (which Don Cayetano did
not know to be such) in order to deprive his brothers and sisters of their rightful share in their
uncle's estate.
The employment of undue influence by Heracio was not "mutually repugnant" to fraud (p.
172, Rollo) as the petitioner insists, for it was the means employed by Heracio to defraud his
brothers and sisters of their share in Don Cayetano's estate.
There was fraud because Don Cayetano was not apprised that the document he was signing
with Co, Barredo and Lim was a second will revoking the dispositions of property that he
made in his first will. Had he been aware that it was a second will, and if it were prepared at
his own behest, he would not have denied that he made it. He would probably have caused it
to be probated while he was still alive, as he did with his first will.
But apparently, the instrument was foisted on him without his being aware of its true nature
which the petitioner assiduously concealed, not only from the court and the private
respondents, but from Don Cayetano himself.
That the dispositions in the second will were not made by Don Cayetano is proven by the
omission therefrom of Don Cayetano's reservation of one-tenth of his properties and the
income thereof to pay for holy masses for the repose of his soul and to be spent for the
maintenance of his family chapel which houses the religious images he owned in San Miguel,
Bulacan. That provision in his first will, for his personal benefit, would not have been deleted
by Don Cayetano if his only purpose in making a second will was to disinherit his eight
nephews and nieces. But Heracio overdid himself. He wanted everything.
The objection to the deposition of Don Cayetano for want of an oath before he testified, is
tardy. Objection to the lack of an oath should have been made at the taking of his deposition.
Section 29(d), Rule 24 of the Rules of Court provides:
(d) As to oral examination and other particulars
Errors and irregularities occurring at the oral examination in the manner of
taking the deposition, in the form of the questions or answers, in the oath or
affirmation, or in the conduct of the parties and errors of any kind which might
be obviated, removed, or cured if promptly prosecuted, are waived unless
reasonable objection thereto is made at the taking of the deposition.
(Emphasis ours.)
While the petitioner puts much stock in the supposed due execution of the will and the
competence of the attesting witnesses Co, Barredo and
Lim the trial court, with whom the Court of Appeals agreed, gave them low marks for
credibility. The factual observations of the Court of Appeals on this point are quoted below:
Assuming for the sake of arguments that the second will was executed, the
testimonies of the notary public who prepared and before whom the will was
acknowledged, as well as those of the three (3) instrumental witnesses
thereof were not given credit by the lower court, and so with this Court,
because of major contradictions in testimonies.
As regards notary public Atty. Mendoza, the court a quo doubted his
credibility as follows:
The prevarications on the testimonies of witnesses are not
difficult to find especially if we consider that in a second
 meeting only with Don Cayetano, Atty. Mendoza would The above citations of the inconsistencies and contradictions fatally made by
readily be entrusted with the delicate and confidential said witnesses are only some of the more important ones as discussed in the
preparation of a second will, designed to disinherit his eight decision of the lower court. But they are enough, to say the least, to convince
nephews and nieces in favor of Heracio, the operator of the this Court that indeed said witnesses crossed the boundaries of their
bowling alley where witness Mendoza always play; . . . (p. credibilities. (pp. 56-57, Rollo.)
36, Decision; p. 179, Records)
WHEREFORE, finding no reversible error in the decision of the Court of Appeals, the petition
. . . Added to this is the statement of Atty. Mendoza that the for review is DENIED. Costs against the petitioner.
old man could understood (sic) both English or Tagalog. On
this score, this Court entertains doubt as to its truthfulness SO ORDERED.
because it was testified to by Barredo, prosecution witness
and corroborated by Ms. Bingel, principal witness for the
oppositors, that the old man is versatile in Tagalog as he is a
Bulakeo but could not speak English except to say word,
yes, sir. . . . . (p. 33, Decision, p. 176, Records).

With respect to witness Alfredo Barredo, the truthfulness of his testimonies

was doubted by the lower court in this wise:

. . . . Another point noticed by this Court is the testimony of

Alfredo Barredo that after talking with Atty. Mendoza at the
phone he was asked by the old man to fetch the 2 witnesses
however when asked on direct examination, he stated that
he stayed all along with the old man and did not leave him
even after talking with Atty. Mendoza, which spells a whale
of difference in time element and enormously distanced from
the truth. So also, his exaggerated demonstration of the
ability of the old man in answering even small children yes,
sir, is too good to be true. . . . . (pp. 33-34, Decision, pp. 176-
177, Records).

Witness Dr. Co's testimony that he did not charge the late Cayetano Revilla
for two services rendered by him and that he only charged when a third
service was made was also doubted by the lower court. Said the court a quo:

. . . witnesses Co, a practicing dentist was munificent

enough not to charge Don Cayetano for two time services
and only charged him the 3rd time.

It may be added here that the testimony of Dr. Co that the testator read his
will in silence before they were asked to affix their signatures (tsn., Aug. 17,
1987, pp. 30-31, 45) is completely different from the testimony of another
witness (Fernando Lim) who testified that the late Don Cayetano read his will
aloud before he gave it to the witnesses for their signatures (tsn., Aug. 13,
1987, pp. 47, 52).
 [G.R. No. 139587. November 22, 2000]
IN THE MATTER OF THE INTESTATE ESTATE OF DECEASED ISMAEL REYES, THE
HEIRS OF OSCAR R. REYES, petitioners, vs. CESAR R. REYES, respondent.
DECISION
GONZAGA-REYES, J.:
In this petition for review on certiorari, petitioners seek to annul the decision of the
respondent Court of Appeals in CA-G.R. CV No. 46761[1] which affirmed the Order[2] dated
January 26, 1994 of the Regional Trial Court, Branch 96, Quezon City, in Special Proceeding
No. 89-2519, a petition for issuance of letters of administration, and the resolution dated July
28, 1999 denying their motion for reconsideration.[3]
Spouses Ismael Reyes and Felisa Revita Reyes are the registered owners of parcels of
land situated in Arayat Street, Cubao, Quezon City covered by Transfer Certificates of Title
Nos. 4983 and 3598 (39303). The spouses have seven children, namely: Oscar, Araceli,
Herminia, Aurora, Emmanuel, Cesar and Rodrigo, all surnamed Reyes.
On April 18, 1973, Ismael Reyes died intestate. Prior to his death, Ismael Reyes was
notified by the Bureau of Internal Revenue (BIR) of his income tax deficiency which arose out
of his sale of a parcel land located in Tandang Sora, Quezon City. For failure to settle his tax
liability, the amount increased to about P172,724.40 and since no payment was made by the
heirs of deceased Ismael Reyes, the property covered by TCT No. 4983 was levied [4] sold and
eventually forfeited by the Bureau of Internal Revenue in favor of the government. [5]
Sometime in 1976, petitioners predecessor Oscar Reyes availed of the BIRs tax amnesty
and he was able to redeem the property covered by TCT No. 4983[6] upon payment of the
reduced tax liability in the amount of about P18,000.[7]
On May 18, 1982, the Office of the City Treasurer of Quezon City sent a notice to Felisa
Revita Reyes informing her that the Arayat properties will be sold at public auction on August
25, 1982 for her failure to settle the real estate tax delinquency from 1974-1981.[8]
On December 15, 1986, petitioners predecessor Oscar Reyes entered into an amnesty
compromise agreement with the City Treasurer and settled the accounts of Felisa R. Reyes. [9]
On May 10, 1989, private respondent Cesar Reyes, brother of Oscar Reyes, filed a petition
for issuance of letters of administration with the Regional Trial Court of Quezon City praying
for his appointment as administrator of the estate of the deceased Ismael Reyes which estate
included 50% of the Arayat properties covered by TCT Nos. 4983 and 3598. [10] Oscar Reyes
filed his conditional opposition thereto on the ground that the Arayat properties do not form part
of the estate of the deceased as he (Oscar) had acquired the properties by redemption and or
purchase.[11]
The probate court subsequently issued letters of administration in favor of Cesar Reyes
where the latter was ordered to submit a true and complete inventory of properties pertaining
to the estate of the deceased and the special powers of attorney executed by the other heirs
who reside in the USA and that of Aurora Reyes-Dayot conforming to his appointment as
administrator.[12]Cesar Reyes filed an inventory of real and personal properties of the deceased
which included the Arayat properties with a total area of 1,009 sq. meters.[13] On the other hand,
Oscar Reyes filed his objection to the inventory reiterating that the Arayat properties had been
forfeited in favor of the government and he was the one who subsequently redeemed the same
from the BIR using his own funds.[14]
A hearing on the inventory was scheduled where administrator Cesar Reyes was required
to present evidence to establish that the properties belong to the estate of Ismael Reyes and
the oppositor to adduce evidence in support of his objection to the inclusion of certain properties
in the inventory.[15] After hearing the parties respective arguments, the probate court issued its
Order dated January 26, 1994, the dispositive portion of which reads: [16]
WHEREFORE, pursuant to the foregoing findings, the Court hereby modifies the inventory
submitted by the administrator and declares to belong to the estate of the late Ismael Reyes
the following properties, to wit:
1. One half (1/2) of the agricultural land located in Montalban, Rizal containing an
area of 31,054 square meters, covered by TCT 72730 with an approximate value
of P405,270.00;
2. One half (1/2) of two (2) adjoining residential lots located on Arayat Street, Cubao,
Quezon City, with total area of 1,009 square meters, more or less, covered by
TCTs No. 4983 AND 3598 (39303), with an approximate value of P3,027,000.00;
but this determination is provisional in character and shall be without prejudice to
the outcome of any action to be brought hereafter in the proper Court on the issue
of ownership of the properties; and,
3. The building constructed by and leased to Sonny Bernardo and all its rental income
from the inception of the lease, whether such income be in the possession of
oppositor, in which case he is hereby directed to account therefor, or if such
income be still unpaid by Bernardo, in which case the administrator should move
to collect the same.
Consistent with the foregoing things, either of the administrator oppositor, or heir Felisa R.
Reyes, in her personal capacity as apparent co-owner of the Arayat Street properties, may
commence the necessary proper action for settling the issue of ownership of such properties
in the Regional Trial Court in Quezon City and to inform the Court of the commencement
thereof by any of them as soon as possible.
The administrator is hereby directed to verify and check carefully on whether other properties,
particularly the real properties allegedly situated in Montalban, Rizal; in Marikina, Metro
Manila (near Boys Town); and in Bulacan, otherwise referred to as the Hi-Cement property
truly pertained to the estate; to determine their present condition and the status of their
ownership; and to render a report thereon in writing within thirty (30) days from receipt of this
Order.
The motion demanding for accounting to be done by oppositor Oscar Reyes is hereby denied
for being unwarranted, except whatever incomes he might have received from Sonny
Bernardo, which he is hereby directed to turn over to the administrator within thirty (30) days
from finality of this Order.
A motion for reconsideration was filed by Oscar Reyes which was denied in an Order
dated May 30, 1994.[17] He then filed his appeal with the respondent Court of Appeals. While
the appeal was pending, Oscar died and he was substituted by his heirs, herein petitioners.
On May 6, 1999, the respondent Court issued its assailed decision which affirmed the
probate courts order. It ruled that the probate courts order categorically stated that the inclusion
of the subject properties in the inventory of the estate of the deceased Ismael Reyes is
provisional in character and shall be without prejudice to the outcome of any action to be
brought hereafter in the proper court on the issue of ownership of the properties; that the
provisional character of the inclusion of the contested properties in the inventory as stressed
in the order is within the jurisdiction of intestate court. It further stated that although the general
rule that question of title to property cannot be passed upon in the probate court admits of
exceptions, i.e. if the claimant and all other parties having legal interest in the property consent,
expressly or impliedly, to the submission of the question to the probate court for adjudication,
such has no application in the instant case since petitioner-appellee and oppositor-appellant
are not the only parties with legal interest in the subject property as they are not the only heirs
of the decedent; that it was never shown that all parties interested in the subject property or all
the heirs of the decedent consented to the submission of the question of ownership to the
intestate court.
Petitioners filed their motion for reconsideration which was denied in a resolution dated
July 28, 1999. Hence this petition for review on certiorari alleging that the respondent Court
erred (1) in ruling that the court a quo correctly included one half (1/2) of the Arayat properties
covered by TCT Nos. 4983 and 3598 (39303) in the inventory of the estate of the deceased
Ismael Reyes (2) in upholding that the court a quo has no jurisdiction to determine the issue of
ownership.
Petitioners argue that a probate courts jurisdiction is not limited to the determination of
who the heirs are and what shares are due them as regards the estate of a deceased person
since the probate court has the power and competence to determine whether a property should
be excluded from the inventory of the estate or not, thus the Court a quo committed a reversible
error when it included the Arayat properties in the inventory of the estate of Ismael Reyes
despite the overwhelming evidence presented by petitioner-oppositor Oscar Reyes proving his
claim of ownership.Petitioners contend that their claim of ownership over the Arayat properties
as testified to by their predecessor Oscar Reyes was based on two (2) grounds, to wit (1) his
redemption of the Arayat properties and (2) the abandonment of the properties by his co-heirs;
that his act of redeeming the properties from the BIR in 1976 and therefter from the City
Treasurer of Quezon City using his own funds have the effect of vesting ownership to
him. Petitioners claim that private respondent is already barred from claiming the Arayat
properties since he only filed this petition 16 years after the death of Ismael Reyes and after
the prices of the real properties in Cubao have already escalated tremendously.
We find no merit in this argument.
The jurisdiction of the probate court merely relates to matters having to do with the
settlement of the estate and the probate of wills of deceased persons, and the appointment
and removal of administrators, executors, guardians and trustees. [18] The question of
ownership is as a rule, an extraneous matter which the Probate Court cannot resolve with
finality.[19] Thus, for the purpose of determining whether a certain property should or should not
be included in the inventory of estate proceeding, the probate court may pass upon the title
thereto, but such determination is provisional, not conclusive, and is subject to the final decision
in a separate action to resolve title.[20]
We find that the respondent Court did not err in affirming the provisional inclusion of the
subject properties to the estate of the deceased Ismael Reyes without prejudice to the outcome
of any action to be brought thereafter in the proper court on the issue of ownership considering
that the subject properties are still titled under the torrens system in the names of spouses
Ismael and Felisa Revita Reyes which under the law is endowed with incontestability until after
it has been set aside in the manner indicated in the law. [21] The declaration of the provisional
character of the inclusion of the subject properties in the inventory as stressed in the order is
within the jurisdiction of the Probate Court.
Petitioners next claim that as an exception to the rule that the probate court is of limited
jurisdiction, the court has jurisdiction to resolve the issue of ownership when the parties
interested are all heirs of the deceased and they submitted the question of title to the property,
without prejudice to third persons. Petitioners allege that the parties before the probate court
were all the heirs of deceased Ismael Reyes and they were allowed to present evidence proving
ownership over the subject properties, thus private respondent cannot argue that he did not in
any way consent to the submission of the issue of ownership to the probate court as the records
of this case is replete with evidence that he presented evidence in an attempt to prove
ownership of the subject properties.
We are not persuaded.
Settled is the rule that the Regional Trial Court acting as a probate court exercises but
limited jurisdiction, thus it has no power to take cognizance of and determine the issue of title
to property claimed by a third person adversely to the decedent, unless the claimant and all
other parties having legal interest in the property consent, expressly or impliedly, to the
submission of the question to the Probate Court for adjudgment, or the interests of third persons
are not thereby prejudiced.[22]
The facts obtaining in this case, however, do not call for the application of the exception
to the rule. It bears stress that the purpose why the probate court allowed the introduction of
evidence on ownership was for the sole purpose of determining whether the subject properties
should be included in the inventory which is within the probate courts competence. Thus, when
private respondent Cesar Reyes was appointed as administrator of the properties in the courts
Order dated July 26, 1989, he was ordered to submit a true inventory and appraisal of the real
and personal properties of the estate which may come into his possession or knowledge which
private respondent complied with. However, petitioner Oscar Reyes submitted his objection to
the inventory on the ground that it included the subject properties which had been forfeited in
favor of the government on April 21, 1975 and which he subsequently redeemed on August 19,
1976. The Court resolved the opposition as follows:
At the hearing today of the pending incidents, it was agreed that the said incidents could not
be resolved without introduction of evidence.
Accordingly, the hearing on the inventory of real and personal properties is hereby set on
April 24, 1990 at 10:00 A.M. at which date and time the petitioner/administrator shall be
required to present evidence to establish that the properties stated in the inventory belong to
the estate of Ismael Reyes. The oppositor shall thereafter adduce his evidence in support of
his objection to the inclusion of certain properties of the estates in the inventory.
Notably, the Probate Court stated, from the start of the hearing, that the hearing was for
the merits of accounting and inventory, thus it had jurisdiction to hear the opposition of Oscar
Reyes to the inventory as well as the respective evidence of the parties to determine for
purposes of inventory alone if they should be included therein or excluded therefrom. In fact,
the probate court in its Order stated that for resolution is the matter of the inventory of the
estate, mainly to consider what properties should be included in the inventory and what should
not be included. There was nothing on record that both parties submitted the issue of ownership
for its final resolution. Thus the respondent Court did not err in ruling that the trial court has no
jurisdiction to pass upon the issue of ownership conclusively.
In fact, the probate court, aware of its limited jurisdiction declared that its determination of
the ownership was merely provisional and suggested that either the administrator or the widow
Felisa Reyes may commence the proper action in the Regional Trial Court. Moreover, the court
admitted that it was not competent to pass upon the ownership of the subject properties, thus:
Although the testimony of the oppositor should have greater persuasive value than that of the
petitioner/administrator, mainly because it agrees closely with the recitals of facts found in the
several public documents submitted as evidence in this case and is corroborated to the
greatest extent by the fact that the properties were, indeed, abandoned in his possession
since 1975 until the present, his alleged ownership of the Arayat Street properties cannot still
be sustained in a manner which would warrant their exclusion from the administrators
inventory.
To begin with, there are portions in the records which show that the oppositor himself was
somehow uncertain about his rights on the properties and the basis therefor. During his
cross-examination (tsn, Oct. 4, 1991), he gave the following statements:
xx xx xx
(Atty. Habitan)
Q: And if we will add the other taxes you have paid, (you) are now claiming to be the owner
of the Arayat property because you have paid all these taxes?
A: The amounts I have paid and all the expenses I have and if I had not paid all these
amounts the property in question would have been lost, sir.
Q: So, in effect, you are now claiming ownership over the property, I want a categorical
answer, Mr. Witness?
A: If I am going to sum up all these expenses, my share in the Hi-Cement property, my
share in the Bulacan property, the amount of the property in Cubao is small and also
all my sufferings because of the property in Cubao, this cannot be paid in terms of
money, sir. (tsn, Oct. 4, 1991, pp. 10-12)
On re-direct examination (tsn, Sept. 18, 1992), he clarified his statements as follows:
xx xx xx
(Atty, Javellana)
Q: Mr. Reyes, on cross-examination, you were asked by the petitioners counsel whether
because you had paid the BIR P17,872.44 you are now claiming to be the owner of
the property in Arayat Street to which you answered no, will you explain your answer?
A: When I paid almost P18,000.00, it does not mean that I claim the property already; on
the contrary, I have my own reasons to claim it now on other conditions which
are the following: number one, there was a levy by the BIR on the property, it was
forfeited due to delinquency of real estate taxes; number two, for abandonment, when
my mother, brother(s) and sisters left the property, they told me it is my problem and I
should take care of it. Number three, the disposition, my mother, my brothers and
sisters sold the property of my father, the Hi-Cement and the property in Visayas Street
without giving my share. And another thing I have to sell my own property, my own
assets so that I can redeem from the BIR the Arayat property and which I did with my
personal funds, and number five, nobody helped me in my problems regarding those
properties, I was alone and so I felt that the property in Arayat is mine.
xx xx xx
(tsn, Sept. 18, 1992, pp. 2-3)
Notwithstanding his clarifying statements on redirect examination, the impression of the Court
on the issue is not entirely favorable to him. Apart from the absence of a specific document of
transfer, the circumstances and factors he gave may not suffice in and by themselves to
convey or transfer title, for, at best, they may only be the basis of such transfer. They may be
considered as proof of the intention to dispose in his favor or as evidence of a set off among
the heirs, which seems to be what he has in mind. There might also be substance in his
assertions about the abandonment in his favor, which, if raised in the proper action, could
constitute either prescription or laches. It is hardly needed to stress, therefore, that more than
these are required to predicate the exclusion of the properties from the inventory.
Another obtrusive reality stands out to invite notice: the BIR levy was only made on the
property covered in TCT 4983 and did not include the property covered in TCT 3598
(39303). This somehow detracts from the logic of the oppositors assertion of ownership of
the entire Arayat Street properties; even if his assertion is valid and true, it can encompass, SO ORDERED
at most, only the property subject of the BIRs levy and declaration of forfeiture (i.e., TCT
4983), not the property covered by TCT 3598 (39303).

These pronouncements should not by any means diminish or deprive the oppositor of
whatever rights or properties he believes or considers to be rightfully his. Although the
circumstances and factors he has given to the Court herein may have legal consequences
that could have defeated opposing-claims and rendered oppositors claim on the properties
unassailable, this Courts competence to adjudicate thus in this proceedings is clearly non-
existent. In Baybayan vs. Aquino (149 SCRA 186), it was held that the question of
ownership of a property alleged to be part of the estate must be submitted to the Regional
Trial Court in the exercise of its general jurisdiction.

This ruling then, cannot be a final adjudication on the present and existing legal ownership of
the properties. Whatever is declared herein ought not to preclude oppositor from prosecuting
an ordinary action for the purpose of having his claims or rights established over the
properties. If he still cares hereafter to prosecute such claim of ownership adversely to the
estate and the apparent co-owner, his mother Felisa. As stated in Valera, et al. vs. Judge
Inserto, et al. (149 SCRA 533), this Court, acting as a probate court, exercises but limited
jurisdiction; accordingly, its determination that property should be included in the inventory or
not is within its probate jurisdiction, but such determination is only provisional in character,
not conclusive, and is subject to the final decision in a separate action that may be instituted
by the parties.

xx xx xx

The aforecited findings clarify that there were several reasons for having the issue of
ownership ventilated elsewhere. Apart from the fact that only one-half of the two lots known
as the Arayat property (i.e., the half that could pertain to the estate) could be settled herein,
there was the realization that the evidence adduced so far (including that bearing on the
oppositors basis for excluding from the estate the property) was inadequate or otherwise
inconclusive.

A practical way of looking at the problem is that this Court, sitting herein as an intestate court,
does not consider itself competent to rule on the ownership of the entire Arayat property.

Finally, anent private respondents allegation that the instant petition was filed one day
late, hence should be dismissed, we find the same to be devoid of merit. Petitioners received
copy of the decision denying their motion for reconsideration on August 13, 1999, thus they
have until August 28, 1999 within which to file petition for review. Petitioners filed their motion
for extension on August 27, 1999 praying for 30 days extension from August 28, 1999 or until
September 27, 1999 to file their petition which this Court granted. Petitioners filed their petition
on September 27, 1999, which is within the period given by the Court.
WHEREFORE, premises considered, the petition for review is DENIED.
 THIRD DIVISION
G.R. No. 157451 December 16, 2005
LETICIA VALMONTE ORTEGA, Petitioner,
vs.
JOSEFINA C. VALMONTE, Respondent.
DECISION
PANGANIBAN, J.:
The law favors the probate of a will. Upon those who oppose it rests the burden of showing
why it should not be allowed. In the present case, petitioner has failed to discharge this
burden satisfactorily. For this reason, the Court cannot attribute any reversible error on the
part of the appellate tribunal that allowed the probate of the will.
The Case
Before the Court is a Petition for Review1 under Rule 45 of the Rules of Court, seeking to
reverse and set aside the December 12, 2002 Decision 2 and the March 7, 2003
Resolution3 of the Court of Appeals (CA) in CA-GR CV No. 44296. The assailed Decision
disposed as follows:
"WHEREFORE, the appeal is GRANTED, and the Decision appealed from
is REVERSED and SET ASIDE. In its place judgment is rendered approving and allowing
probate to the said last will and testament of Placido Valmonte and ordering the issuance of
letters testamentary to the petitioner Josefina Valmonte. Let this case be remanded to the
court a quo for further and concomitant proceedings."4
The assailed Resolution denied petitioners Motion for Reconsideration.
The Facts
The facts were summarized in the assailed Decision of the CA, as follows:
"x x x: Like so many others before him, Placido toiled and lived for a long time in the United
States until he finally reached retirement. In 1980, Placido finally came home to stay in the
Philippines, and he lived in the house and lot located at #9200 Catmon St., San Antonio
Village, Makati, which he owned in common with his sister Ciriaca Valmonte and titled in their
names in TCT 123468. Two years after his arrival from the United States and at the age of 80
he wed Josefina who was then 28 years old, in a ceremony solemnized by Judge Perfecto
Laguio, Jr. on February 5, 1982. But in a little more than two years of wedded bliss, Placido
died on October 8, 1984 of a cause written down as COR PULMONALE.
"Placido executed a notarial last will and testament written in English and consisting of two
(2) pages, and dated June 15, 1983 but acknowledged only on August 9, 1983. The first page
contains the entire testamentary dispositions and a part of the attestation clause, and was
signed at the end or bottom of that page by the testator and on the left hand margin by the
three instrumental witnesses. The second page contains the continuation of the attestation
clause and the acknowledgment, and was signed by the witnesses at the end of the
attestation clause and again on the left hand margin. It provides in the body that:
LAST WILL AND TESTAMENT OF PLACIDO VALMONTE IN THE NAME OF THE LORD
AMEN:
I, PLACIDO VALMONTE, of legal age, married to Josefina Cabansag Valmonte, and a
resident of 9200 Catmon Street, Makati, Metro Manila, 83 years of age and being of sound
and disposing mind and memory, do hereby declare this to be my last will and testament:
1. It is my will that I be buried in the Catholic Cemetery, under the auspices of the Catholic
Church in accordance with the rites and said Church and that a suitable monument to be
erected and provided my by executrix (wife) to perpetuate my memory in the minds of my
family and friends;
2. I give, devise and bequeath unto my loving wife, JOSEFINA C. VALMONTE, one half (1/2)
portion of the follow-described properties, which belongs to me as [co-owner]:
a. Lot 4-A, Block 13 described on plan Psd-28575, LRC, (GLRO), situated in Makati, Metro
Manila, described and covered by TCT No. 123468 of the Register of Deeds of Pasig, Metro-
Manila registered jointly as co-owners with my deceased sister (Ciriaca Valmonte), having
share and share alike;
b. 2-storey building standing on the above-described property, made of strong and mixed
materials used as my residence and my wife and located at No. 9200 Catmon Street, Makati,
Metro Manila also covered by Tax Declaration No. A-025-00482, Makati, Metro-Manila, jointly
in the name of my deceased sister, Ciriaca Valmonte and myself as co-owners, share and
share alike or equal co-owners thereof;
3. All the rest, residue and remainder of my real and personal properties, including my
savings account bank book in USA which is in the possession of my nephew, and all others
whatsoever and wherever found, I give, devise and bequeath to my said wife, Josefina C.
Valmonte;
4. I hereby appoint my wife, Josefina C. Valmonte as sole executrix of my last will and
testament, and it is my will that said executrix be exempt from filing a bond;
IN WITNESS WHEREOF, I have hereunto set my hand this 15th day of June 1983 in Quezon
City, Philippines.
"The allowance to probate of this will was opposed by Leticia on the grounds that:
1. Petitioner failed to allege all assets of the testator, especially those found in the USA;
2. Petitioner failed to state the names, ages, and residences of the heirs of the testator; or to
give them proper notice pursuant to law;
3. Will was not executed and attested as required by law and legal solemnities and formalities
were not complied with;
4. Testator was mentally incapable to make a will at the time of the alleged execution he
being in an advance sate of senility;
5. Will was executed under duress, or the influence of fear or threats;
6. Will was procured by undue and improper influence and pressure on the part of the
petitioner and/or her agents and/or assistants; and/or
7. Signature of testator was procured by fraud, or trick, and he did not intend that the
instrument should be his will at the time of affixing his signature thereto;
and she also opposed the appointment as Executrix of Josefina alleging her want of
understanding and integrity.
"At the hearing, the petitioner Josefina testified and called as witnesses the notary public Atty.
Floro Sarmiento who prepared and notarized the will, and the instrumental witnesses
spouses Eugenio Gomez, Jr. and Feliza Gomez and Josie Collado. For the opposition, the
oppositor Leticia and her daughter Mary Jane Ortega testified.
"According to Josefina after her marriage with the testator they lived in her parents house at
Salingcob, Bacnotan, La Union but they came to Manila every month to get his $366.00
monthly pension and stayed at the said Makati residence. There were times though when to
shave off on expenses, the testator would travel alone. And it was in one of his travels by his
lonesome self when the notarial will was made. The will was witnessed by the spouses
Eugenio and Feliza Gomez, who were their wedding sponsors, and by Josie Collado.
Josefina said she had no knowledge of the existence of the last will and testament of her
husband, but just serendipitously found it in his attache case after his death. It was only then
that she learned that the testator bequeathed to her his properties and she was named the
executrix in the said will. To her estimate, the value of property both real and personal left by
the testator is worth more or less P100,000.00. Josefina declared too that the testator never
suffered mental infirmity because despite his old age he went alone to the market which is
two to three kilometers from their home cooked and cleaned the kitchen and sometimes if
she could not accompany him, even traveled to Manila alone to claim his monthly pension.
Josefina also asserts that her husband was in good health and that he was hospitalized only
because of a cold but which eventually resulted in his death.
"Notary Public Floro Sarmiento, the notary public who notarized the testators will, testified
that it was in the first week of June 1983 when the testator together with the three witnesses
of the will went to his house cum law office and requested him to prepare his last will and
testament. After the testator instructed him on the terms and dispositions he wanted on the
will, the notary public told them to come back on June 15, 1983 to give him time to prepare it.
After he had prepared the will the notary public kept it safely hidden and locked in his drawer.
The testator and his witnesses returned on the appointed date but the notary public was out
of town so they were instructed by his wife to come back on August 9, 1983, and which they
did. Before the testator and his witnesses signed the prepared will, the notary public
explained to them each and every term thereof in Ilocano, a dialect which the testator spoke
and understood. He likewise explained that though it appears that the will was signed by the
testator and his witnesses on June 15, 1983, the day when it should have been executed had
he not gone out of town, the formal execution was actually on August 9, 1983. He reasoned
that he no longer changed the typewritten date of June 15, 1983 because he did not like the
document to appear dirty. The notary public also testified that to his observation the testator
was physically and mentally capable at the time he affixed his signature on the will.
"The attesting witnesses to the will corroborated the testimony of the notary public, and
testified that the testator went alone to the house of spouses Eugenio and Feliza Gomez at
GSIS Village, Quezon City and requested them to accompany him to the house of Atty. Floro
Sarmiento purposely for his intended will; that after giving his instructions to Atty. Floro
Sarmiento, they were told to return on June 15, 1983; that they returned on June 15, 1983 for
the execution of the will but were asked to come back instead on August 9, 1983 because of
the absence of the notary public; that the testator executed the will in question in their
presence while he was of sound and disposing mind and that he was strong and in good
health; that the contents of the will was explained by the notary public in the Ilocano and
Tagalog dialect and that all of them as witnesses attested and signed the will in the presence
of the testator and of each other. And that during the execution, the testators wife, Josefina
was not with them.
"The oppositor Leticia declared that Josefina should not inherit alone because aside from her
there are other children from the siblings of Placido who are just as entitled to inherit from
him. She attacked the mental capacity of the testator, declaring that at the time of the
execution of the notarial will the testator was already 83 years old and was no longer of
sound mind. She knew whereof she spoke because in 1983 Placido lived in the Makati
residence and asked Leticias family to live with him and they took care of him. During that
time, the testators physical and mental condition showed deterioration, aberrations and
senility. This was corroborated by her daughter Mary Jane Ortega for whom Placido took a
fancy and wanted to marry.
"Sifting through the evidence, the court a quo held that [t]he evidence adduced, reduces the
opposition to two grounds, namely:
1. Non-compliance with the legal solemnities and formalities in the execution and attestation
of the will; and
2. Mental incapacity of the testator at the time of the execution of the will as he was then in
an advanced state of senility
"It then found these grounds extant and proven, and accordingly disallowed probate." 5
Ruling of the Court of Appeals
Reversing the trial court, the appellate court admitted the will of Placido Valmonte to probate.
The CA upheld the credibility of the notary public and the subscribing witnesses who had
acknowledged the due execution of the will. Moreover, it held that the testator had
testamentary capacity at the time of the execution of the will. It added that his "sexual
exhibitionism and unhygienic, crude and impolite ways"6 did not make him a person of
unsound mind.
Hence, this Petition.7
Issues
Petitioner raises the following issues for our consideration:
"I.
Whether or not the findings of the probate court are entitled to great respect.
"II.
Whether or not the signature of Placido Valmonte in the subject will was procured by fraud or
trickery, and that Placido Valmonte never intended that the instrument should be his last will
and testament.
"III.
Whether or not Placido Valmonte has testamentary capacity at the time he allegedly
executed the subject will."8
In short, petitioner assails the CAs allowance of the probate of the will of Placido Valmonte.
This Courts Ruling
The Petition has no merit.
Main Issue:
Probate of a Will
At the outset, we stress that only questions of law may be raised in a Petition for Review
under Section 1 of Rule 45 of the Rules of Court. As an exception, however, the evidence
presented during the trial may be examined and the factual matters resolved by this Court
when, as in the instant case, the findings of fact of the appellate court differ from those of the
trial court.9
The fact that public policy favors the probate of a will does not necessarily mean that every
will presented for probate should be allowed. The law lays down the procedures and
requisites that must be satisfied for the probate of a will.10 Verily, Article 839 of the Civil Code
states the instances when a will may be disallowed, as follows:
"Article 839. The will shall be disallowed in any of the following cases:
(1) If the formalities required by law have not been complied with;
(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."
In the present case, petitioner assails the validity of Placido Valmontes will by imputing fraud
in its execution and challenging the testators state of mind at the time.
Existence of Fraud in the
Execution of a Will
Petitioner does not dispute the due observance of the formalities in the execution of the will,
but maintains that the circumstances surrounding it are indicative of the existence of fraud.
Particularly, she alleges that respondent, who is the testators wife and sole beneficiary,
conspired with the notary public and the three attesting witnesses in deceiving Placido to sign
it. Deception is allegedly reflected in the varying dates of the execution and the attestation of A Yes sir.
the will.
Q On June 15, 1983, did the testator and his witnesses come to your house?
Petitioner contends that it was "highly dubious for a woman at the prime of her young life [to]
almost immediately plunge into marriage with a man who [was] thrice her age x x x and who A They did as of agreement but unfortunately, I was out of town.
happened to be [a] Fil-American pensionado,"11 thus casting doubt on the intention of
respondent in seeking the probate of the will. Moreover, it supposedly "defies human reason, xxxxxxxxx
logic and common experience"12 for an old man with a severe psychological condition to have
willingly signed a last will and testament.
Q The document has been acknowledged on August 9, 1983 as per acknowledgement
appearing therein. Was this the actual date when the document was acknowledged?
We are not convinced. Fraud "is a trick, secret device, false statement, or pretense, by which
the subject of it is cheated. It may be of such character that the testator is misled or deceived
as to the nature or contents of the document which he executes, or it may relate to some A Yes sir.
extrinsic fact, in consequence of the deception regarding which the testator is led to make a
certain will which, but for the fraud, he would not have made."13 Q What about the date when the testator and the three witnesses affixed their respective
signature on the first and second pages of exhibit C?
We stress that the party challenging the will bears the burden of proving the existence of
fraud at the time of its execution.14 The burden to show otherwise shifts to the proponent of A On that particular date when it was acknowledged, August 9, 1983.
the will only upon a showing of credible evidence of fraud.15 Unfortunately in this case, other
than the self-serving allegations of petitioner, no evidence of fraud was ever presented. Q Why did you not make the necessary correction on the date appearing on the body of the
document as well as the attestation clause?
It is a settled doctrine that the omission of some relatives does not affect the due execution of
a will.16 That the testator was tricked into signing it was not sufficiently established by the fact A Because I do not like anymore to make some alterations so I put it in my own handwriting
that he had instituted his wife, who was more than fifty years his junior, as the sole August 9, 1983 on the acknowledgement. (tsn, June 11, 1985, pp. 8-10)
beneficiary; and disregarded petitioner and her family, who were the ones who had taken "the
cudgels of taking care of [the testator] in his twilight years."17 Eugenio Gomez:

Moreover, as correctly ruled by the appellate court, the conflict between the dates appearing Q It appears on the first page Mr. Witness that it is dated June 15, 1983, whereas in the
on the will does not invalidate the document, "because the law does not even require that a acknowledgement it is dated August 9, 1983, will you look at this document and tell us this
[notarial] will x x x be executed and acknowledged on the same occasion." 18 More important, discrepancy in the date?
the will must be subscribed by the testator, as well as by three or more credible witnesses
who must also attest to it in the presence of the testator and of one another. 19Furthermore,
A We went to Atty. Sarmiento together with Placido Valmonte and the two witnesses; that
the testator and the witnesses must acknowledge the will before a notary public.20 In any
was first week of June and Atty. Sarmiento told us to return on the 15th of June but when we
event, we agree with the CA that "the variance in the dates of the will as to its supposed
returned, Atty. Sarmiento was not there.
execution and attestation was satisfactorily and persuasively explained by the notary public
and the instrumental witnesses."21
Q When you did not find Atty. Sarmiento on June 15, 1983, did you again go back?
The pertinent transcript of stenographic notes taken on June 11, 1985, November 25, 1985,
October 13, 1986, and October 21, 1987 -- as quoted by the CA -- are reproduced A We returned on the 9th of August and there we signed.
respectively as follows:
Q This August 9, 1983 where you said it is there where you signed, who were your
"Atty. Floro Sarmiento: companions?

Q You typed this document exhibit C, specifying the date June 15 when the testator and his A The two witnesses, me and Placido Valmonte. (tsn, November 25, 1985, pp. 7-8)
witnesses were supposed to be in your office?
Felisa Gomez on cross-examination:
Q Why did you have to go to the office of Atty. Floro Sarmiento, three times?
xxxxxxxxx
A The reason why we went there three times is that, the first week of June was out first time.
We went there to talk to Atty. Sarmiento and Placido Valmonte about the last will and
testament. After that what they have talked what will be placed in the testament, what Atty.
Sarmiento said was that he will go back on the 15th of June. When we returned on June 15,
Atty. Sarmiento was not there so we were not able to sign it, the will. That is why, for the third
time we went there on August 9 and that was the time we affixed our signature. (tsn, October
13, 1986, pp. 4-6)
Josie Collado:
Q When you did not find Atty. Sarmiento in his house on June 15, 1983, what transpired?
A The wife of Atty. Sarmiento told us that we will be back on August 9, 1983.
Q And on August 9, 1983 did you go back to the house of Atty. Sarmiento?
A Yes, Sir.
Q For what purpose?
A Our purpose is just to sign the will.
Q Were you able to sign the will you mentioned?
A Yes sir. (tsn, October 21, 1987, pp. 4-5)"22
Notably, petitioner failed to substantiate her claim of a "grand conspiracy" in the commission
of a fraud. There was no showing that the witnesses of the proponent stood to receive any
benefit from the allowance of the will. The testimonies of the three subscribing witnesses and
the notary are credible evidence of its due execution.23 Their testimony favoring it and the
finding that it was executed in accordance with the formalities required by law should be
affirmed, absent any showing of ill motives.24
Capacity to Make a Will
In determining the capacity of the testator to make a will, the Civil Code gives the following
guidelines:
"Article 798. In order to make a will it is essential that the testator be of sound mind at the
time of its execution.
"Article 799. 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 shattered by
disease, injury or other cause.
"It shall be sufficient if the testator was able at the time of making the will to know the nature
of the estate to be disposed of, the proper objects of his bounty, and the character of the
testamentary act.
"Article 800. The law presumes that every person is of sound mind, in the absence of proof to
the contrary.
"The burden of proof that the testator was not of sound mind at the time of making his
dispositions is on the person who opposes the probate of the will; but if the testator, one
month, or less, before making his will was publicly known to be insane, the person who
maintains the validity of the will must prove that the testator made it during a lucid interval."
According to Article 799, the three things that the testator must have the ability to know to be
considered of sound mind are as follows: (1) the nature of the estate to be disposed of, (2)
the proper objects of the testators bounty, and (3) the character of the testamentary act.
Applying this test to the present case, we find that the appellate court was correct in holding
that Placido had testamentary capacity at the time of the execution of his will.
It must be noted that despite his advanced age, he was still able to identify accurately the
kinds of property he owned, the extent of his shares in them and even their locations. As
regards the proper objects of his bounty, it was sufficient that he identified his wife as sole
beneficiary. As we have stated earlier, the omission of some relatives from the will did not
affect its formal validity. There being no showing of fraud in its execution, intent in its
disposition becomes irrelevant.
Worth reiterating in determining soundness of mind is Alsua-Betts v. CA,25 which held thus:
"Between the highest degree of soundness of mind and memory which unquestionably
carries with it full testamentary capacity, and that degrees of mental aberration generally
known as insanity or idiocy, there are numberless degrees of mental capacity or incapacity
and while on one hand it has been held that mere weakness of mind, or partial imbecility from
disease of body, or from age, will not render a person incapable of making a will; a weak or
feebleminded person may make a valid will, provided he has understanding and memory
sufficient to enable him to know what he is about to do and how or to whom he is disposing of
his property. To constitute a sound and disposing mind, it is not necessary that the mind be
unbroken or unimpaired or unshattered by disease or otherwise. It has been held that
testamentary incapacity does not necessarily require that a person shall actually be insane or
of unsound mind."26
WHEREFORE, the Petition is DENIED, and the assailed Decision and Resolution of the
Court of Appeals are AFFIRMED. Costs against petitioner.

SO ORDERED.