G.R. No.
L-4963 January 29, 1953 property that may be left by her husband upon his death (Exhibit
MARIA USON, plaintiff-appellee,
vs.
MARIA DEL ROSARIO, CONCEPCION NEBREDA, CONRADO
NEBREDA, DOMINADOR NEBREDA, AND FAUSTINO
NEBREDA, Jr., defendants-appellants.
Priscilo Evangelista for appellee.
Brigido G. Estrada for appellant.
BAUTISTA ANGELO, J.:
This is an action for recovery of the ownership and possession of
five (5) parcels of land situated in the Municipality of Labrador,
Province of Pangasinan, filed by Maria Uson against Maria del
Rosario and her four children named Concepcion, Conrado,
Dominador, and Faustino, surnamed Nebreda, who are all of
minor age, before the Court of First Instance of Pangasinan.
Maria Uson was the lawful wife of Faustino Nebreda who upon
his death in 1945 left the lands involved in this litigation. Faustino
Nebreda left no other heir except his widow Maria Uson.
However, plaintiff claims that when Faustino Nebreda died in
1945, his common-law wife Maria del Rosario took possession
illegally of said lands thus depriving her of their possession and
enjoyment.
Defendants in their answer set up as special defense that on
February 21, 1931, Maria Uson and her husband, the late
Faustino Nebreda, executed a public document whereby they
agreed to separate as husband and wife and, in consideration of
their separation, Maria Uson was given a parcel of land by way of
alimony and in return she renounced her right to inherit any other
1).
After trial, at which both parties presented their respective
evidence, the court rendered decision ordering the defendants to
restore to the plaintiff the ownership and possession of the lands
in dispute without special pronouncement as to costs. Defendants
interposed the present appeal.
There is no dispute that Maria Uson, plaintiff-appellee, is the
lawful wife of Faustino Nebreda, former owner of the five parcels
of lands litigated in the present case. There is likewise no dispute
that Maria del Rosario, one of the defendants-appellants, was
merely a common-law wife of the late Faustino Nebreda with
whom she had four illegitimate children, her now co-defendants. It
likewise appears that Faustino Nebreda died in 1945 much prior
to the effectivity of the new Civil Code. With this background, it is
evident that when Faustino Nebreda died in 1945 the five parcels
of land he was seized of at the time passed from the moment of
his death to his only heir, his widow Maria Uson (Article 657, old
Civil Code).As this Court aptly said, "The property belongs to the
heirs at the moment of the death of the ancestor as completely as
if the ancestor had executed and delivered to them a deed for the
same before his death" (Ilustre vs. Alaras Frondosa, 17 Phil.,
321). From that moment, therefore, the rights of inheritance of
Maria Uson over the lands in question became vested.
The claim of the defendants that Maria Uson had relinquished her
right over the lands in question because she expressly renounced
to inherit any future property that her husband may acquire and
leave upon his death in the deed of separation they had entered
into on February 21, 1931, cannot be entertained for the simple
reason that future inheritance cannot be the subject of a contract
nor can it be renounced (1 Manresa, 123, sixth edition; Tolentino
on Civil Code, p. 12; Osorio vs. Osorio and Ynchausti Steamship
Co., 41 Phil., 531).
But defendants contend that, while it is true that the four minor
defendants are illegitimate children of the late Faustino Nebreda
and under the old Civil Code are not entitled to any successional
rights, however, under the new Civil Code which became in force
in June, 1950, they are given the status and rights of natural
children and are entitled to the successional rights which the law
accords to the latter (article 2264 and article 287, new Civil
Code), and because these successional rights were declared for
the first time in the new code, they shall be given retroactive
effect even though the event which gave rise to them may have
occurred under the prior legislation (Article 2253, new Civil Code).
There is no merit in this claim. Article 2253 above referred to
provides indeed that rights which are declared for the first time
shall have retroactive effect even though the event which gave
rise to them may have occurred under the former legislation, but
this is so only when the new rights do not prejudice any vested or
acquired right of the same origin. Thus, said article provides that
"if a right should be declared for the first time in this Code, it shall
be effective at once, even though the act or event which gives
rise thereto may have been done or may have occurred under the
prior legislation, provided said new right does not prejudice or
impair any vested or acquired right, of the same origin." As
already stated in the early part of this decision, the right of
ownership of Maria Uson over the lands in question became
vested in 1945 upon the death of her late husband and this is so
because of the imperative provision of the law which commands
that the rights to succession are transmitted from the moment of
death (Article 657, old Civil Code). The new right recognized by
the new Civil Code in favor of the illegitimate children of the
deceased cannot, therefore, be asserted to the impairment of the
vested right of Maria Uson over the lands in dispute.
As regards the claim that Maria Uson, while her deceased
husband was lying in state, in a gesture of pity or compassion,
agreed to assign the lands in question to the minor children for
the reason that they were acquired while the deceased was living
with their mother and Maria Uson wanted to assuage somewhat
the wrong she has done to them, this much can be said; apart
from the fact that this claim is disputed, we are of the opinion that
said assignment, if any, partakes of the nature of a donation of
real property, inasmuch as it involves no material consideration,
and in order that it may be valid it shall be made in a public
document and must be accepted either in the same document or
in a separate one (Article 633, old Civil Code). Inasmuch as this
essential formality has not been followed, it results that the
alleged assignment or donation has no valid effect.
WHEREFORE, the decision appealed from is affirmed, without
costs.
G.R. No. L-28040 August 18, 1972
TESTATE ESTATE OF JOSEFA TANGCO, JOSE DE BORJA,
administrator-appellee; JOSE DE BORJA, as administrator,
CAYETANO DE BORJA, MATILDE DE BORJA and CRISANTO
DE BORJA (deceased) as Children of Josefa
Tangco, appellees,
vs.
TASIANA VDA. DE DE BORJA, Special Administratrix of the
Testate Estate of Francisco de Borja, appellant. .
G.R. No L-28568 August 18, 1972
TESTATE ESTATE OF THE LATE FRANCISCO DE BORJA,
TASIANA O. VDA. DE DE BORJA, special Administratrix
appellee,
vs.
JOSE DE BORJA, oppositor-appellant.
G.R. No. L-28611 August 18, 1972
TASIANA 0. VDA. DE BORJA, as Administratrix of the
Testate Estate of the late Francisco de Borja, plaintiff-
appellee,
vs.
JOSE DE BORJA, as Administrator of the Testate Estate of
the late Josefa Tangco, defendant-appellant.
L-28040
Pelaez, Jalandoni & Jamir for administrator-appellee.
Quiogue & Quiogue for appellee Matilde de Borja.
Andres Matias for appellee Cayetano de Borja.
Sevilla & Aquino for appellant.
L-28568
Sevilla & Aquino for special administratrix-appellee.
Pelaez, Jalandoni & Jamir for oppositor-appellant.
L-28611
Sevilla & Aquino for plaintiff-appellee.
Pelaez, Jalandoni & Jamir and David Gueverra for defendant-
appellant.
REYES, J.B.L., J.:p
Of these cases, the first, numbered L-28040 is an appeal by Tasiana Ongsingco Vda. de de
Borja, special administratrix of the testate estate of Francisco de Borja,1 from the approval of
a compromise agreement by the Court of First Instance of Rizal, Branch I, in its Special
Proceeding No. R-7866, entitled, "Testate Estate of Josefa Tangco, Jose de Borja,
Administrator".
Case No. L-28568 is an appeal by administrator Jose Borja from
the disapproval of the same compromise agreement by the Court
of First Instance of Nueva Ecija, Branch II, in its Special
Proceeding No. 832, entitled, "Testate Estate of Francisco de
Borja, Tasiana O. Vda. de de Borja, Special Administratrix".
And Case No. L-28611 is an appeal by administrator Jose de
Borja from the decision of the Court of First Instance of Rizal,
Branch X, in its Civil Case No. 7452, declaring the Hacienda
Jalajala Poblacion, which is the main object of the aforesaid
compromise agreement, as the separate and exclusive property
of the late Francisco de Borja and not a conjugal asset of the
community with his first wife, Josefa Tangco, and that said
hacienda pertains exclusively to his testate estate, which is under
administrator in Special Proceeding No. 832 of the Court of First
Instance of Nueva Ecija, Branch II.
It is uncontested that Francisco de Borja, upon the death of his
wife Josefa Tangco on 6 October 1940, filed a petition for the
probate of her will which was docketed as Special Proceeding
No. R-7866 of the Court of First Instance of Rizal, Branch I. The
will was probated on 2 April 1941. In 1946, Francisco de Borja
was appointed executor and administrator: in 1952, their son,
Jose de Borja, was appointed co-administrator. When Francisco
died, on 14 April 1954, Jose became the sole administrator of the
testate estate of his mother, Josefa Tangco. While a widower
Francisco de Borja allegedly took unto himself a second wife,
Tasiana Ongsingco. Upon Francisco's death, Tasiana instituted
testate proceedings in the Court of First Instance of Nueva Ecija,
where, in 1955, she was appointed special administratrix. The
validity of Tasiana's marriage to Francisco was questioned in said
proceeding.
The relationship between the children of the first marriage and
Tasiana Ongsingco has been plagued with several court suits
and counter-suits; including the three cases at bar, some
eighteen (18) cases remain pending determination in the courts.
The testate estate of Josefa Tangco alone has been unsettled for
more than a quarter of a century. In order to put an end to all
these litigations, a compromise agreement was entered into on
12 October 1963,2 by and between "[T]he heir and son of
Francisco de Borja by his first marriage, namely, Jose de Borja
personally and as administrator of the Testate Estate of Josefa
Tangco," and "[T]he heir and surviving spouse of Francisco de
Borja by his second marriage, Tasiana Ongsingco Vda. de Borja,
assisted by her lawyer, Atty. Luis Panaguiton Jr." The terms and
conditions of the compromise agreement are as follows:
AGREEMENT
THIS AGREEMENT made and entered into by
and between
The heir and son of Francisco de Borja by his first
marriage, namely, Jose de Borja personally and
as administrator of the Testate Estate of Josefa
Tangco,
AND
The heir and surviving spouse of Francisco de
Borja by his second marriage, Tasiana Ongsingco
Vda. de Borja, assisted by her lawyer, Atty. Luis
Panaguiton Jr.
WITNESSETH
THAT it is the mutual desire of all the parties
herein terminate and settle, with finality, the
various court litigations, controversies, claims,
counterclaims, etc., between them in connection
with the administration, settlement, partition,
adjudication and distribution of the assets as well
as liabilities of the estates of Francisco de Borja
and Josefa Tangco, first spouse of Francisco de
Borja.
THAT with this end in view, the parties herein
have agreed voluntarily and without any
reservations to enter into and execute this
agreement under the following terms and
conditions:
1. That the parties agree to sell the Poblacion
portion of the Jalajala properties situated in
Jalajala, Rizal, presently under administration in
the Testate Estate of Josefa Tangco (Sp. Proc.
No. 7866, Rizal), more specifically described as
follows:
Linda al Norte con el Rio Puwang
que la separa de la jurisdiccion del
 Municipio de Pililla de la Provincia
de Rizal, y con el pico del Monte
Zambrano; al Oeste con Laguna
de Bay; por el Sur con los
herederos de Marcelo de Borja; y
por el Este con los terrenos de la
Familia Maronilla
with a segregated area of approximately 1,313
hectares at the amount of P0.30 per square
meter.
2. That Jose de Borja agrees and obligates
himself to pay Tasiana Ongsingco Vda. de de
Borja the total amount of Eight Hundred Thousand
Pesos (P800,000) Philippine Currency, in cash,
which represent P200,000 as his share in the
payment and P600,000 as pro-rata shares of the
heirs Crisanto, Cayetano and Matilde, all
surnamed de Borja and this shall be considered
as full and complete payment and settlement of
her hereditary share in the estate of the late
Francisco de Borja as well as the estate of Josefa
Tangco, Sp. Proc. No. 832-Nueva Ecija and Sp.
Proc. No. 7866-Rizal, respectively, and to any
properties bequeathed or devised in her favor by
the late Francisco de Borja by Last Will and
Testament or by Donation Inter Vivos or Mortis
Causa or purportedly conveyed to her for
consideration or otherwise. The funds for this
payment shall be taken from and shall depend
upon the receipt of full payment of the proceeds of
the sale of Jalajala, "Poblacion."
3. That Tasiana Ongsingco Vda. de de Borja
hereby assumes payment of that particular
obligation incurred by the late Francisco de Borja
in favor of the Rehabilitation Finance Corporation,
now Development Bank of the Philippines,
amounting to approximately P30,000.00 and also
assumes payment of her 1/5 share of the Estate
and Inheritance taxes on the Estate of the late
Francisco de Borja or the sum of P3,500.00, more
or less, which shall be deducted by the buyer of
Jalajala, "Poblacion" from the payment to be
made to Tasiana Ongsingco Vda. de Borja under
paragraph 2 of this Agreement and paid directly to
the Development Bank of the Philippines and the
heirs-children of Francisco de Borja.
4. Thereafter, the buyer of Jalajala "Poblacion" is
hereby authorized to pay directly to Tasiana
Ongsingco Vda. de de Borja the balance of the
payment due her under paragraph 2 of this
Agreement (approximately P766,500.00) and
issue in the name of Tasiana Ongsingco Vda. de
de Borja, corresponding certified checks/treasury
warrants, who, in turn, will issue the
corresponding receipt to Jose de Borja.
5. In consideration of above payment to Tasiana
Ongsingco Vda. de de Borja, Jose de Borja
personally and as administrator of the Testate
Estate of Josefa Tangco, and Tasiana Ongsingco
Vda. de de Borja, for themselves and for their
heirs, successors, executors, administrators, and
assigns, hereby forever mutually renounce,
withdraw, waive, remise, release and discharge
any and all manner of action or actions, cause or
causes of action, suits, debts, sum or sums of
money, accounts, damages, claims and demands
whatsoever, in law or in equity, which they ever
had, or now have or may have against each other,
more specifically Sp. Proceedings Nos. 7866 and
1955, CFI-Rizal, and Sp. Proc. No. 832-Nueva
Ecija, Civil Case No. 3033, CFI Nueva Ecija and
Civil Case No. 7452-CFI, Rizal, as well as the
case filed against Manuel Quijal for perjury with
the Provincial Fiscal of Rizal, the intention being
to completely, absolutely and finally release each
other, their heirs, successors, and assigns, from
any and all liability, arising wholly or partially,
directly or indirectly, from the administration,
settlement, and distribution of the assets as well
as liabilities of the estates of Francisco de Borja
and Josefa Tangco, first spouse of Francisco de
Borja, and lastly, Tasiana Ongsingco Vda. de de
Borja expressly and specifically renounce
absolutely her rights as heir over any hereditary
share in the estate of Francisco de Borja.
6. That Tasiana Ongsingco Vda. de de Borja,
upon receipt of the payment under paragraph 4
hereof, shall deliver to the heir Jose de Borja all
the papers, titles and documents belonging to
Francisco de Borja which are in her possession
and said heir Jose de Borja shall issue in turn the
corresponding receive thereof.
7. That this agreement shall take effect only upon
the fulfillment of the sale of the properties
mentioned under paragraph 1 of this agreement
and upon receipt of the total and full payment of
the proceeds of the sale of the Jalajala property
"Poblacion", otherwise, the non-fulfillment of the
said sale will render this instrument NULL AND
VOID AND WITHOUT EFFECT THEREAFTER.
IN WITNESS WHEREOF, the parties hereto have
her unto set their hands in the City of Manila,
Philippines, the 12th of October, 1963.
On 16 May 1966, Jose de Borja submitted for Court approval the
agreement of 12 October 1963 to the Court of First Instance of
Rizal, in Special Proceeding No. R-7866; and again, on 8 August
1966, to the Court of First Instance of Nueva Ecija, in Special
Proceeding No. 832. Tasiana Ongsingco Vda. de de Borja
opposed in both instances. The Rizal court approved the
compromise agreement, but the Nueva Ecija court declared it
void and unenforceable. Special administratrix Tasiana
Ongsingco Vda. de de Borja appealed the Rizal Court's order of
approval (now Supreme Court G.R. case No. L-28040), while
administrator Jose de Borja appealed the order of disapproval
(G.R. case No. L-28568) by the Court of First Instance of Nueva
Ecija.
The genuineness and due execution of the compromised
agreement of 12 October 1963 is not disputed, but its validity is,
nevertheless, attacked by Tasiana Ongsingco on the ground that:
(1) the heirs cannot enter into such kind of agreement without first
probating the will of Francisco de Borja; (2) that the same
involves a compromise on the validity of the marriage between
Francisco de Borja and Tasiana Ongsingco; and (3) that even if it
were valid, it has ceased to have force and effect.
In assailing the validity of the agreement of 12 October 1963,
Tasiana Ongsingco and the Probate Court of Nueva Ecija rely on
this Court's decision in Guevara vs. Guevara. 74 Phil. 479,
wherein the Court's majority held the view that the presentation of
a will for probate is mandatory and that the settlement and
distribution of an estate on the basis of intestacy when the
decedent left a will, is against the law and public policy. It is
likewise pointed out by appellant Tasiana Ongsingco that Section
1 of Rule 74 of the Revised Rules explicitly conditions the validity
of an extrajudicial settlement of a decedent's estate by agreement
between heirs, upon the facts that "(if) the decedent left no
will and no debts, and the heirs are all of age, or the minors are
represented by their judicial and legal representatives ..." The will
of Francisco de Borja having been submitted to the Nueva Ecija
Court and still pending probate when the 1963 agreement was
made, those circumstances, it is argued, bar the validity of the
agreement.
Upon the other hand, in claiming the validity of the compromise
agreement, Jose de Borja stresses that at the time it was entered
into, on 12 October 1963, the governing provision was Section 1,
Rule 74 of the original Rules of Court of 1940, which allowed the
extrajudicial settlement of the estate of a deceased person
regardless of whether he left a will or not. He also relies on the
dissenting opinion of Justice Moran, in Guevara vs. Guevara, 74
Phil. 479, wherein was expressed the view that if the parties have
already divided the estate in accordance with a decedent's will,
the probate of the will is a useless ceremony; and if they have
divided the estate in a different manner, the probate of the will is
worse than useless.
The doctrine of Guevara vs. Guevara, ante, is not applicable to
the case at bar. This is apparent from an examination of the
terms of the agreement between Jose de Borja and Tasiana
Ongsingco. Paragraph 2 of said agreement specifically stipulates
that the sum of P800,000 payable to Tasiana Ongsingco —
shall be considered as full — complete payment
— settlement of her hereditary share in the estate
of the late Francisco de Borja as well as the
estate of Josefa Tangco, ... and to any properties
bequeathed or devised in her favor by the late
Francisco de Borja by Last Will and Testament or
by Donation Inter Vivos or Mortis Causa or
purportedly conveyed to her for consideration or
otherwise.
This provision evidences beyond doubt that the ruling in the
Guevara case is not applicable to the cases at bar. There was
here no attempt to settle or distribute the estate of Francisco de
Borja among the heirs thereto before the probate of his will. The
clear object of the contract was merely the conveyance by
Tasiana Ongsingco of any and all her individual share and
interest, actual or eventual in the estate of Francisco de Borja and
Josefa Tangco. There is no stipulation as to any other claimant,
creditor or legatee. And as a hereditary share in a decedent's
estate is transmitted or vested immediately from the moment of
the death of such causante or predecessor in interest (Civil Code
of the Philippines, Art. 777)3 there is no legal bar to a successor
(with requisite contracting capacity) disposing of her or his
hereditary share immediately after such death, even if the actual
extent of such share is not determined until the subsequent
liquidation of the estate.4 Of course, the effect of such alienation is
to be deemed limited to what is ultimately adjudicated to the
vendor heir. However, the aleatory character of the contract does
not affect the validity of the transaction; neither does the
coetaneous agreement that the numerous litigations between the
parties (the approving order of the Rizal Court enumerates
fourteen of them, Rec. App. pp. 79-82) are to be considered
settled and should be dismissed, although such stipulation, as
noted by the Rizal Court, gives the contract the character of a
compromise that the law favors, for obvious reasons, if only
because it serves to avoid a multiplicity of suits.
It is likewise worthy of note in this connection that as the surviving
spouse of Francisco de Borja, Tasiana Ongsingco was his
compulsory heir under article 995 et seq. of the present Civil
Code. Wherefore, barring unworthiness or valid disinheritance,
her successional interest existed independent of Francisco de
Borja's last will and testament and would exist even if such will
were not probated at all. Thus, the prerequisite of a previous
probate of the will, as established in the Guevara and analogous
cases, can not apply to the case of Tasiana Ongsingco Vda. de
de Borja.
Since the compromise contract Annex A was entered into by and
between "Jose de Borja personally and as administrator of the
Testate Estate of Josefa Tangco" on the one hand, and on the
other, "the heir and surviving spouse of Francisco de Borja by his
second marriage, Tasiana Ongsingco Vda. de de Borja", it is
clear that the transaction was binding on both in their individual
capacities, upon the perfection of the contract, even without
previous authority of the Court to enter into the same. The only
difference between an extrajudicial compromise and one that is
submitted and approved by the Court, is that the latter can be
enforced by execution proceedings. Art. 2037 of the Civil Code is
explicit on the point:
8. Art. 2037. A compromise has upon the parties
the effect and authority of res judicata; but there
shall be no execution except in compliance with a
judicial compromise.
It is argued by Tasiana Ongsingco that while the
agreement Annex A expressed no definite period
for its performance, the same was intended to
have a resolutory period of 60 days for its
effectiveness. In support of such contention, it is
averred that such a limit was expressly stipulated
in an agreement in similar terms entered into by
said Ongsingco with the brothers and sister of
Jose de Borja, to wit, Crisanto, Matilde and
Cayetano, all surnamed de Borja, except that the
consideration was fixed at P600,000 (Opposition,
Annex/Rec. of Appeal, L-28040, pp. 39- 46) and
which contained the following clause:
III. That this agreement shall take effect only upon
the consummation of the sale of the property
mentioned herein and upon receipt of the total
and full payment of the proceeds of the sale by
the herein owner heirs-children of Francisco de
Borja, namely, Crisanto, Cayetano and Matilde, all
surnamed de Borja; Provided that if no sale of the
said property mentioned herein is consummated,
or the non-receipt of the purchase price thereof by
the said owners within the period of sixty (60)
days from the date hereof, this agreement will
become null and void and of no further effect.
Ongsingco's argument loses validity when it is considered that
Jose de Borja was not a party to this particular contract (Annex
1), and that the same appears not to have been finalized, since it
bears no date, the day being left blank "this — day of October
1963"; and while signed by the parties, it was not notarized,
although plainly intended to be so done, since it carries a
proposed notarial ratification clause. Furthermore, the
compromise contract with Jose de Borja (Annex A), provides in its
par. 2 heretofore transcribed that of the total consideration of
P800, 000 to be paid to Ongsingco, P600,000 represent the
"prorata share of the heirs Crisanto, Cayetano and Matilde all
surnamed de Borja" which corresponds to the consideration of
P600,000 recited in Annex 1, and that circumstance is proof that
the duly notarized contract entered into wit Jose de Borja under
date 12 October 1963 (Annex A), was designed to absorb and
supersede the separate unformalize agreement with the other
three Borja heirs. Hence, the 60 days resolutory term in the
contract with the latter (Annex 1) not being repeated in Annex A,
can not apply to the formal compromise with Jose de Borja. It is
moreover manifest that the stipulation that the sale of the
Hacienda de Jalajala was to be made within sixty days from the
date of the agreement with Jose de Borja's co-heirs (Annex 1)
was plainly omitted in Annex A as improper and ineffective, since
the Hacienda de Jalajala (Poblacion) that was to be sold to raise
the P800,000 to be paid to Ongsingco for her share formed part
of the estate of Francisco de Borja and could not be sold until
authorized by the Probate Court. The Court of First Instance of
Rizal so understood it, and in approving the compromise it fixed a
term of 120 days counted from the finality of the order now under
appeal, for the carrying out by the parties for the terms of the
contract.
This brings us to the plea that the Court of First Instance of Rizal
had no jurisdiction to approve the compromise with Jose de Borja
(Annex A) because Tasiana Ongsingco was not an heir in the
estate of Josefa Tangco pending settlement in the Rizal Court,
but she was an heir of Francisco de Borja, whose estate was the
object of Special Proceeding No. 832 of the Court of First
Instance of Nueva Ecija. This circumstance is irrelevant, since
what was sold by Tasiana Ongsingco was only her eventual
share in the estate of her late husband, not the estate itself; and
as already shown, that eventual share she owned from the time
of Francisco's death and the Court of Nueva Ecija could not bar
her selling it. As owner of her undivided hereditary share, Tasiana
could dispose of it in favor of whomsoever she chose. Such
alienation is expressly recognized and provided for by article
1088 of the present Civil Code:
Art. 1088. Should any of the heirs sell his
hereditary rights to a stranger before the partition,
any or all of the co-heirs may be subrogated to the
rights of the purchaser by reimbursing him for the
price of the sale, provided they do so within the
period of one month from the time they were
notified in writing of the sale of the vendor.
If a sale of a hereditary right can be made to a stranger, then a
fortiori sale thereof to a coheir could not be forbidden.
Tasiana Ongsingco further argues that her contract with Jose de
Borja (Annex "A") is void because it amounts to a compromise as
to her status and marriage with the late Francisco de Borja. The
point is without merit, for the very opening paragraph of the
agreement with Jose de Borja (Annex "A") describes her as "the
heir and surviving spouse of Francisco de Borja by his second
marriage, Tasiana Ongsingco Vda. de de Borja", which is in itself
definite admission of her civil status. There is nothing in the text
of the agreement that would show that this recognition of
Ongsingco's status as the surviving spouse of Francisco de Borja
was only made in consideration of the cession of her hereditary
rights.
It is finally charged by appellant Ongsingco, as well as by the
Court of First Instance of Nueva Ecija in its order of 21
September 1964, in Special Proceedings No. 832 (Amended
Record on Appeal in L-28568, page 157), that the compromise
agreement of 13 October 1963 (Annex "A") had been abandoned,
as shown by the fact that, after its execution, the Court of First
Instance of Nueva Ecija, in its order of 21 September 1964, had
declared that "no amicable settlement had been arrived at by the
parties", and that Jose de Borja himself, in a motion of 17 June
1964, had stated that the proposed amicable settlement "had
failed to materialize".
It is difficult to believe, however, that the amicable settlement
referred to in the order and motion above-mentioned was the
compromise agreement of 13 October 1963, which already had
been formally signed and executed by the parties and duly
notarized. What the record discloses is that some time after its
formalization, Ongsingco had unilaterally attempted to back out
from the compromise agreement, pleading various reasons
restated in the opposition to the Court's approval of Annex "A"
(Record on Appeal, L-20840, page 23): that the same was invalid
because of the lapse of the allegedly intended resolutory period
of 60 days and because the contract was not preceded by the
probate of Francisco de Borja's will, as required by this
Court's Guevarra vs. Guevara ruling; that Annex "A" involved a
compromise affecting Ongsingco's status as wife and widow of
Francisco de Borja, etc., all of which objections have been
already discussed. It was natural that in view of the widow's
attitude, Jose de Borja should attempt to reach a new settlement
or novatory agreement before seeking judicial sanction and
enforcement of Annex "A", since the latter step might ultimately
entail a longer delay in attaining final remedy. That the attempt to
reach another settlement failed is apparent from the letter of
Ongsingco's counsel to Jose de Borja quoted in pages 35-36 of
the brief for appellant Ongsingco in G.R. No. 28040; and it is
more than probable that the order of 21 September 1964 and the
motion of 17 June 1964 referred to the failure of the parties' quest
for a more satisfactory compromise. But the inability to reach a
novatory accord can not invalidate the original compromise
(Annex "A") and justifies the act of Jose de Borja in finally seeking
a court order for its approval and enforcement from the Court of
First Instance of Rizal, which, as heretofore described, decreed
that the agreement be ultimately performed within 120 days from
the finality of the order, now under appeal.
We conclude that in so doing, the Rizal court acted in accordance
with law, and, therefore, its order should be upheld, while the
contrary resolution of the Court of First Instance of Nueva Ecija
should be, and is, reversed.
In her brief, Tasiana Ongsingco also pleads that the time elapsed
in the appeal has affected her unfavorably, in that while the
purchasing power of the agreed price of P800,000 has
diminished, the value of the Jalajala property has increased. But
the fact is that her delay in receiving the payment of the agreed
price for her hereditary interest was primarily due to her attempts
to nullify the agreement (Annex "A") she had formally entered into
with the advice of her counsel, Attorney Panaguiton. And as to
the devaluation de facto of our currency, what We said in Dizon
Rivera vs. Dizon, L-24561, 30 June 1970, 33 SCRA 554, that
"estates would never be settled if there were to be a revaluation
with every subsequent fluctuation in the values of currency and
properties of the estate", is particularly opposite in the present
case.
Coming now to Case G.R. No. L-28611, the issue is whether the
Hacienda de Jalajala (Poblacion), concededly acquired by
Francisco de Borja during his marriage to his first wife, Josefa
Tangco, is the husband's private property (as contended by his
second spouse, Tasiana Ongsingco), or whether it forms part of
the conjugal (ganancial) partnership with Josefa Tangco. The
Court of First Instance of Rizal (Judge Herminio Mariano,
presiding) declared that there was adequate evidence to
overcome the presumption in favor of its conjugal character
established by Article 160 of the Civil Code.
We are of the opinion that this question as between Tasiana
Ongsingco and Jose de Borja has become moot and academic,
in view of the conclusion reached by this Court in the two
preceding cases (G.R. No. L-28568), upholding as valid the
cession of Tasiana Ongsingco's eventual share in the estate of
her late husband, Francisco de Borja, for the sum of P800,000
with the accompanying reciprocal quit-claims between the parties.
But as the question may affect the rights of possible creditors and
legatees, its resolution is still imperative.
It is undisputed that the Hacienda Jalajala, of around 4,363
hectares, had been originally acquired jointly by Francisco de
Borja, Bernardo de Borja and Marcelo de Borja and their title
thereto was duly registered in their names as co-owners in Land
Registration Case No. 528 of the province of Rizal, G.L.R.O. Rec.
No. 26403 (De Barjo vs. Jugo, 54 Phil. 465). Subsequently, in
1931, the Hacienda was partitioned among the co-owners: the
Punta section went to Marcelo de Borja; the Bagombong section
to Bernardo de Borja, and the part in Jalajala proper (Poblacion)
corresponded to Francisco de Borja (V. De Borja vs. De Borja
101 Phil. 911, 932).
The lot allotted to Francisco was described as —
Una Parcela de terreno en Poblacion, Jalajala: N.
Puang River; E. Hermogena Romero; S. Heirs of
Marcelo de Borja O. Laguna de Bay; containing
an area of 13,488,870 sq. m. more or less,
assessed at P297,410. (Record on Appeal, pages
7 and 105)
On 20 November 1962, Tasiana O. Vda. de Borja, as
Administratrix of the Testate Estate of Francisco de Borja,
instituted a complaint in the Court of First Instance of Rizal (Civil
Case No. 7452) against Jose de Borja, in his capacity as
Administrator of Josefa Tangco (Francisco de Borja's first wife),
seeking to have the Hacienda above described declared
exclusive private property of Francisco, while in his answer
defendant (now appellant) Jose de Borja claimed that it was
conjugal property of his parents (Francisco de Borja and Josefa
Tangco), conformably to the presumption established by Article
160 of the Philippine Civil Code (reproducing Article 1407 of the
Civil Code of 1889), to the effect that:
Art. 160. All property of the marriage is presumed
to belong to the conjugal partnership, unless it be
proved that it pertains exclusively to the husband
or to the wife.
Defendant Jose de Borja further counterclaimed for damages,
compensatory, moral and exemplary, as well as for attorney's
fees.
After trial, the Court of First Instance of Rizal, per Judge Herminio
Mariano, held that the plaintiff had adduced sufficient evidence to
rebut the presumption, and declared the Hacienda de Jalajala
(Poblacion) to be the exclusive private property of the late
Francisco de Borja, and his Administratrix, Tasiana Ongsingco
Vda. de Borja, to be entitled to its possession. Defendant Jose de
Borja then appealed to this Court.
The evidence reveals, and the appealed order admits, that the
character of the Hacienda in question as owned by the conjugal
partnership De Borja-Tangco was solemnly admitted by the late
Francisco de Borja no less than two times: first, in the
Reamended Inventory that, as executor of the estate of his
deceased wife Josefa Tangco, he filed in the Special Proceedings
No. 7866 of the Court of First Instance of Rizal on 23 July 1953
(Exhibit "2"); and again, in the Reamended Accounting of the
same date, also filed in the proceedings aforesaid (Exhibit "7").
Similarly, the plaintiff Tasiana O. Vda. de Borja, herself, as
oppositor in the Estate of Josefa Tangco, submitted therein an
inventory dated 7 September 1954 (Exhibit "3") listing the Jalajala
property among the "Conjugal Properties of the Spouses
Francisco de Borja and Josefa Tangco". And once more, Tasiana
Ongsingco, as administratrix of the Estate of Francisco de Borja,
in Special Proceedings No. 832 of the Court of First Instance of
Nueva Ecija, submitted therein in December, 1955, an inventory
wherein she listed the Jalajala Hacienda under the heading
"Conjugal Property of the Deceased Spouses Francisco de Borja
and Josefa Tangco, which are in the possession of the
Administrator of the Testate Estate of the Deceased Josefa
Tangco in Special Proceedings No. 7866 of the Court of First
Instance of Rizal" (Exhibit "4").
Notwithstanding the four statements aforesaid, and the fact that
they are plain admissions against interest made by both
Francisco de Borja and the Administratrix of his estate, in the
course of judicial proceedings in the Rizal and Nueva Ecija
Courts, supporting the legal presumption in favor of the conjugal
community, the Court below declared that the Hacienda de
Jalajala (Poblacion) was not conjugal property, but the private
exclusive property of the late Francisco de Borja. It did so on the
strength of the following evidences: (a) the sworn statement by
Francis de Borja on 6 August 1951 (Exhibit "F") that —
He tomado possession del pedazo de terreno ya
delimitado (equivalente a 1/4 parte, 337
hectareas) adjunto a mi terreno personal y
exclusivo (Poblacion de Jalajala, Rizal).
and (b) the testimony of Gregorio de Borja, son of Bernardo de
Borja, that the entire Hacienda had been bought at a foreclosure
sale for P40,100.00, of which amount P25,100 was contributed by
Bernardo de Borja and P15,000. by Marcelo de Borja; that upon
receipt of a subsequent demand from the provincial treasurer for
realty taxes the sum of P17,000, Marcelo told his brother
Bernardo that Francisco (son of Marcelo) wanted also to be a co-
owner, and upon Bernardo's assent to the proposal, Marcelo
issue a check for P17,000.00 to pay the back taxes and said that
the amount would represent Francisco's contribution in the
purchase of the Hacienda. The witness further testified that —
Marcelo de Borja said that that money was
entrusted to him by Francisco de Borja when he
was still a bachelor and which he derived from his
business transactions. (Hearing, 2 February 1965,
t.s.n., pages 13-15) (Emphasis supplied)
The Court below, reasoning that not only Francisco's sworn
statement overweighed the admissions in the inventories relied
upon by defendant-appellant Jose de Borja since probate courts
can not finally determine questions of ownership of inventoried
property, but that the testimony of Gregorio de Borja showed that
Francisco de Borja acquired his share of the original Hacienda
with his private funds, for which reason that share can not be
regarded as conjugal partnership property, but as exclusive
property of the buyer, pursuant to Article 1396(4) of Civil Code of
1889 and Article 148(4) of the Civil Code of the Philippines.
The following shall be the exclusive property of each spouse:
xxx xxx xxx
(4) That which is purchased with exclusive money
of the wife or of the husband.
We find the conclusions of the lower court to be untenable. In the
first place, witness Gregorio de Borja's testimony as to the source
of the money paid by Francisco for his share was plain hearsay,
hence inadmissible and of no probative value, since he was
merely repeating what Marcelo de Borja had told him (Gregorio).
There is no way of ascertaining the truth of the statement, since
both Marcelo and Francisco de Borja were already dead when
Gregorio testified. In addition, the statement itself is improbable,
since there was no need or occasion for Marcelo de Borja to
explain to Gregorio how and when Francisco de Borja had earned
the P17,000.00 entrusted to Marcelo. A ring of artificiality is
clearly discernible in this portion of Gregorio's testimony.
As to Francisco de Borja's affidavit, Exhibit "F", the quoted portion
thereof (ante, page 14) does not clearly demonstrate that the "mi
terreno personal y exclusivo (Poblacion de Jalajala, Rizal) " refers
precisely to the Hacienda in question. The inventories (Exhibits 3
and 4) disclose that there were two real properties in Jalajala
owned by Francisco de Borja, one of 72.038 sq. m., assessed at
P44,600, and a much bigger one of 1,357.260.70 sq. m., which is
evidently the Hacienda de Jalajala (Poblacion). To which of these
lands did the affidavit of Francisco de Borja (Exhibit "F") refer to?
In addition, Francisco's characterization of the land as "mi terreno
personal y exclusivo" is plainly self-serving, and not admissible in
the absence of cross examination.
It may be true that the inventories relied upon by defendant-
appellant (Exhibits "2", "3", "4" and "7") are not conclusive on the
conjugal character of the property in question; but as already
noted, they are clear admissions against the pecuniary interest of
the declarants, Francisco de Borja and his executor-widow,
Tasiana Ongsingco, and as such of much greater probative
weight than the self-serving statement of Francisco (Exhibit "F").
Plainly, the legal presumption in favor of the conjugal character of
the Hacienda de Jalajala (Poblacion) now in dispute has not been
rebutted but actually confirmed by proof. Hence, the appealed
order should be reversed and the Hacienda de Jalajala
(Poblacion) declared property of the conjugal partnership of
Francisco de Borja and Josefa Tangco.
No error having been assigned against the ruling of the lower
court that claims for damages should be ventilated in the
corresponding special proceedings for the settlement of the
estates of the deceased, the same requires no pro
announcement from this Court.
IN VIEW OF THE FOREGOING, the appealed order of the Court
of First Instance of Rizal in Case No. L-28040 is hereby affirmed;
while those involved in Cases Nos. L-28568 and L-28611 are
reversed and set aside. Costs against the appellant Tasiana
Ongsingco Vda. de Borja in all three (3) cases.
G.R. No. L-41715 June 18, 1976
ROSALIO BONILLA (a minor) SALVACION BONILLA (a
minor) and PONCIANO BONILLA (their father) who
represents the minors, petitioners,
vs.
LEON BARCENA, MAXIMA ARIAS BALLENA, ESPERANZA
BARCENA, MANUEL BARCENA, AGUSTINA NERI, widow of
JULIAN TAMAYO and HON. LEOPOLDO GIRONELLA of the
Court of First Instance of Abra, respondents.
Federico Paredes for petitioners.
Demetrio V. Pre for private respondents.
MARTIN, J:
This is a petition for review 1 of the Order of the Court of First
Instance of Abra in Civil Case No. 856, entitled Fortunata
Barcena vs. Leon Barcena, et al., denying the motions for
reconsideration of its order dismissing the complaint in the
aforementioned case.
On March 31, 1975 Fortunata Barcena, mother of minors Rosalio
Bonilla and Salvacion Bonilla and wife of Ponciano Bonilla,
instituted a civil action in the Court of First Instance of Abra, to
quiet title over certain parcels of land located in Abra.
On May 9, 1975, defendants filed a written motion to dismiss the
complaint, but before the hearing of the motion to dismiss, the
counsel for the plaintiff moved to amend the complaint in order to
include certain allegations therein. The motion to amend the
complaint was granted and on July 17, 1975, plaintiffs filed their
amended complaint.
On August 4, 1975, the defendants filed another motion to
dismiss the complaint on the ground that Fortunata Barcena is
dead and, therefore, has no legal capacity to sue. Said motion to
dismiss was heard on August 14, 1975. In said hearing, counsel
for the plaintiff confirmed the death of Fortunata Barcena, and
asked for substitution by her minor children and her husband, the
petitioners herein; but the court after the hearing immediately
dismissed the case on the ground that a dead person cannot be a
real party in interest and has no legal personality to sue.
On August 19, 1975, counsel for the plaintiff received a copy of
the order dismissing the complaint and on August 23, 1975, he
moved to set aside the order of the dismissal pursuant to
Sections 16 and 17 of Rule 3 of the Rules of Court. 2
On August 28, 1975, the court denied the motion for
reconsideration filed by counsel for the plaintiff for lack of merit.
On September 1, 1975, counsel for deceased plaintiff filed a
written manifestation praying that the minors Rosalio Bonilla and
Salvacion Bonilla be allowed to substitute their deceased mother,
but the court denied the counsel's prayer for lack of merit. From
the order, counsel for the deceased plaintiff filed a second motion
for reconsideration of the order dismissing the complaint claiming
that the same is in violation of Sections 16 and 17 of Rule 3 of the
Rules of Court but the same was denied.
Hence, this petition for review.
The Court reverses the respondent Court and sets aside its order
dismissing the complaint in Civil Case No. 856 and its orders
denying the motion for reconsideration of said order of dismissal.
While it is true that a person who is dead cannot sue in court, yet
he can be substituted by his heirs in pursuing the case up to its
completion. The records of this case show that the death of
Fortunata Barcena took place on July 9, 1975 while the complaint
was filed on March 31, 1975. This means that when the complaint
was filed on March 31, 1975, Fortunata Barcena was still alive,
and therefore, the court had acquired jurisdiction over her person.
If thereafter she died, the Rules of Court prescribes the procedure
whereby a party who died during the pendency of the proceeding
can be substituted. Under Section 16, Rule 3 of the Rules of
Court "whenever a party to a pending case dies ... it shall be the
duty of his attorney to inform the court promptly of such death ...
and to give the name and residence of his executor,
administrator, guardian or other legal representatives." This duty
was complied with by the counsel for the deceased plaintiff when
he manifested before the respondent Court that Fortunata
Barcena died on July 9, 1975 and asked for the proper
substitution of parties in the case. The respondent Court,
however, instead of allowing the substitution, dismissed the
complaint on the ground that a dead person has no legal
personality to sue. This is a grave error. Article 777 of the Civil
Code provides "that the rights to the succession are transmitted
from the moment of the death of the decedent." From the moment
of the death of the decedent, the heirs become the absolute
owners of his property, subject to the rights and obligations of the
decedent, and they cannot be deprived of their rights thereto
except by the methods provided for by law. 3 The moment of
death is the determining factor when the heirs acquire a definite
right to the inheritance whether such right be pure or
contingent. 4 The right of the heirs to the property of the deceased
vests in them even before judicial declaration of their being heirs
in the testate or intestate proceedings. 5 When Fortunata
Barcena, therefore, died her claim or right to the parcels of land in
litigation in Civil Case No. 856, was not extinguished by her death
but was transmitted to her heirs upon her death. Her heirs have
thus acquired interest in the properties in litigation and became
parties in interest in the case. There is, therefore, no reason for
the respondent Court not to allow their substitution as parties in
interest for the deceased plaintiff.
Under Section 17, Rule 3 of the Rules of Court "after a party dies
and the claim is not thereby extinguished, the court shall order,
upon proper notice, the legal representative of the deceased to
appear and be substituted for the deceased, within such time as
may be granted ... ." The question as to whether an action
survives or not depends on the nature of the action and the
damage sued for. 6 In the causes of action which survive the
wrong complained affects primarily and principally property and
property rights, the injuries to the person being merely incidental,
while in the causes of action which do not survive the injury
complained of is to the person, the property and rights of property
affected being incidental. 7 Following the foregoing criterion the
claim of the deceased plaintiff which is an action to quiet title over
the parcels of land in litigation affects primarily and principally
property and property rights and therefore is one that survives
even after her death. It is, therefore, the duty of the respondent
Court to order the legal representative of the deceased plaintiff to
appear and to be substituted for her. But what the respondent
Court did, upon being informed by the counsel for the deceased
plaintiff that the latter was dead, was to dismiss the complaint.
This should not have been done for under the same Section 17,
Rule 3 of the Rules of Court, it is even the duty of the court, if the
legal representative fails to appear, to order the opposing party to
procure the appointment of a legal representative of the
deceased. In the instant case the respondent Court did not have
to bother ordering the opposing party to procure the appointment
of a legal representative of the deceased because her counsel
has not only asked that the minor children be substituted for her
but also suggested that their uncle be appointed as guardian ad
litem for them because their father is busy in Manila earning a
living for the family. But the respondent Court refused the request
for substitution on the ground that the children were still minors
and cannot sue in court. This is another grave error because the
respondent Court ought to have known that under the same
Section 17, Rule 3 of the Rules of Court, the court is directed to
appoint a guardian ad litem for the minor heirs. Precisely in the
instant case, the counsel for the deceased plaintiff has suggested
to the respondent Court that the uncle of the minors be appointed
to act as guardian ad litem for them. Unquestionably, the
respondent Court has gravely abused its discretion in not
complying with the clear provision of the Rules of Court in
dismissing the complaint of the plaintiff in Civil Case No. 856 and
refusing the substitution of parties in the case.
IN VIEW OF THE FOREGOING, the order of the respondent
Court dismissing the complaint in Civil Case No. 856 of the Court
of First Instance of Abra and the motions for reconsideration of
the order of dismissal of said complaint are set aside and the
respondent Court is hereby directed to allow the substitution of
the minor children, who are the petitioners therein for the
deceased plaintiff and to appoint a qualified person as
guardian ad litem for them. Without pronouncement as to costs.
SO ORDERED.
Teehankee (Chairman), Makasiar, Esguerra and Muñoz Palma,
JJ., concur.
Footnotes
1 Which this Court treats as special civil action as
per its Resolution dated February 11, 1976.
2 Section 16. Duty of Attorney upon which death,
incapacity or incompetency of party. - Whenever a
party to a pending case dies, becomes
incapacitated or incompetent, it shall be the duty
of his attorney to inform the court promptly of such
death, incapacity or incompetency, and to give the
name and residence of his executor,
administrator, guardian or other legal
representative.
Section 17. Death of party.—After a party dies
and the claim is not thereby extinguished, the
court shall order, upon proper notice, the legal
representative of the deceased to appear and to
be substituted for deceased, within a period of
thirty (30) days, or within such time as may be
granted. If the legal representative fails to appear
within said time, the court may order the opposing
party to procure the appointment of a legal
representative of the within a time to be specified
by the court, and the representative shall
immediately appear for and on behalf of the
interest of the deceased. The court charges
involved in procuring such appointment, if
defrayed by the opposing party, may be recovered
as costs. The heirs of the deceased may be
allowed to be substituted for the deceased,
without requiring the appointment of an executor
or administrator and the court may appoint
guardian ad litemfor the minor heirs.
G.R. No. L-41171 July 23, 1987
INTESTATE ESTATE OF THE LATE VITO BORROMEO,
PATROCINIO BORROMEO-HERRERA, petitioner,
vs.
FORTUNATO BORROMEO and HON. FRANCISCO P.
BURGOS, Judge of the Court of First Instance of Cebu,
Branch II, respondents.
x - - - - - - - - - - - - - - - - - - - - - - -x
No. L-55000 July 23, 1987
IN THE MATTER OF THE ESTATE OF VITO BORROMEO,
DECEASED, PILAR N. BORROMEO, MARIA B. PUTONG,
FEDERICO V. BORROMEO, JOSE BORROMEO, CONSUELO
B. MORALES, AND CANUTO V. BORROMEO, JR., heirs-
appellants,
vs.
FORTUNATO BORROMEO, claimant-appellee.
x - - - - - - - - - - - - - - - - - - - - - - -x
No. L-62895 July 23, 1987
JOSE CUENCO BORROMEO, petitioner,
vs.
HONORABLE COURT OF APPEALS, HON. FRANCISCO P.
BURGOS, As presiding Judge of the (now) Regional Trial
Court, Branch XV, Region VII, RICARDO V. REYES, as
Administrator of the Estate of Vito Borromeo in Sp. Proc. No.
916-R, NUMERIANO G. ESTENZO and DOMINGO L.
ANTIGUA, respondents.
x - - - - - - - - - - - - - - - - - - - - - - -x
No. L-63818 July 23, 1987
DOMINGO ANTIGUA AND RICARDO V. REYES, as
Administrator of the Intestate Estate of VITO BORROMEO,
Sp. Proceedings No. 916-R, Regional Trial Court of Cebu,
joined by HON. JUDGE FRANCISCO P. BURGOS, as
Presiding Judge of Branch XV of the Regional Trial Court of
Cebu, as a formal party, and ATTYS. FRANCIS M. ZOSA,
GAUDIOSO RUIZ and NUMERIANO ESTENZO, petitioners,
vs.
HONORABLE INTERMEDIATE APPELLATE COURT, JOSE
CUENCO BORROMEO, and PETRA O.
BORROMEO, respondents.
x - - - - - - - - - - - - - - - - - - - - - - -x
No. L-65995 July 23, 1987
PETRA BORROMEO, VITALIANA BORROMEO, AMELINDA
BORROMEO, and JOSE CUENCO BORROMEO,petitioners,
vs.
HONORABLE FRANCISCO P. BURGOS, Presiding Judge of
Branch XV, Regional Trial Court of Cebu; RICARDO V.
REYES, Administrator of the Estate of VITO BORROMEO in
Sp. Proc. No. 916-R; and DOMINGO L. ANTIGUA, respondents.
GUTIERREZ, JR., J.:
These cases before us all stem from SP. PROC. NO. 916-R of
the then Court of First Instance of Cebu.
G.R. No. 41171
Vito Borromeo, a widower and permanent resident of Cebu City,
died on March 13, 1952, in Paranaque, Rizal at the age of 88
years, without forced heirs but leaving extensive properties in the
province of Cebu.
On April 19, 1952, Jose Junquera filed with the Court of First
Instance of Cebu a petition for the probate of a one page
document as the last will and testament left by the said deceased,
devising all his properties to Tomas, Fortunato and Amelia, all
surnamed Borromeo, in equal and undivided shares, and
designating Junquera as executor thereof. The case was
docketed as Special Proceedings No. 916-R. The document,
drafted in Spanish, was allegedly signed and thumbmarked by
the deceased in the presence of Cornelio Gandionco, Eusebio
Cabiluna, and Felixberto Leonardo who acted as witnesses.
Oppositions to the probate of the will were filed. On May 28,
1960, after due trial, the probate court held that the document
presented as the will of the deceased was a forgery.
On appeal to this Court, the decision of the probate court
disallowing the probate of the will was affirmed in Testate Estate
of Vito Borromeo, Jose H. Junquera et al. v. Crispin Borromeo et
al. (19 SCRA 656).
The testate proceedings was converted into an intestate
proceedings. Several parties came before the court filing claims
or petitions alleging themselves as heirs of the intestate estate of
Vito Borromeo.
The following petitions or claims were filed:
1. On August 29, 1967, the heirs of Jose Ma. Borromeo
and Cosme Borromeo filed a petition for declaration of
 heirs and determination of heirship. There was no
opposition filed against said petition.
2. On November 26, 1967, Vitaliana Borromeo also filed a
petition for declaration as heir. The heirs of Jose Ma.
Borromeo and Cosme Borromeo filed an opposition to this
petition.
3. On December 13, 1967, Jose Barcenilla, Jr., Anecita
Ocampo de Castro, Ramon Ocampo, Lourdes Ocampo,
Elena Ocampo, Isagani Morre, Rosario Morre, Aurora
Morre, Lila Morre, Lamberto Morre, and Patricia Morre,
filed a petition for declaration of heirs and determination of
shares. The petition was opposed by the heirs of Jose
and Cosme Borromeo.
4. On December 2, 1968, Maria Borromeo Atega, Luz
Borromeo, Hermenegilda Borromeo Nonnenkamp,
Rosario Borromeo, and Fe Borromeo Queroz filed a
claim. Jose Cuenco Borromeo, Crispin Borromeo,
Vitaliana Borromeo and the heirs of Carlos Borromeo
represented by Jose Talam filed oppositions to this claim.
When the aforementioned petitions and claims were heard jointly,
the following facts were established:
1. Maximo Borromeo and Hermenegilda Galan, husband and wife
(the latter having predeceased the former), were survived by their
eight (8) children, namely,
Jose Ma. Borromeo
Cosme Borromeo
Pantaleon Borromeo
Vito Borromeo
Paulo Borromeo
Anecita Borromeo
Quirino Borromeo and
Julian Borromeo
2. Vito Borromeo died a widower on March 13, 1952, without any
issue, and all his brothers and sisters predeceased him.
3. Vito's brother Pantaleon Borromeo died leaving the following
children:
a. Ismaela Borromeo,who died on Oct. 16, 1939
b. Teofilo Borromeo, who died on Aug. 1, 1955, or 3 years
after the death of Vito Borromeo. He was married to
Remedios Cuenco Borromeo, who died on March 28,
1968. He had an only son-Atty. Jose Cuenco Borromeo
one of the petitioners herein.
c. Crispin Borromeo, who is still alive.
4. Anecita Borromeo, sister of Vito Borromeo, died ahead of him
and left an only daughter, Aurora B. Ocampo, who died on Jan.
30, 1950 leaving the following children:
a. Anecita Ocampo Castro
 b. Ramon Ocampo b. Canuto Borromeo, who died on Dec. 31, 1959, leaving
the following children:
c. Lourdes Ocampo
aa. Federico Borromeo
d. Elena Ocampo, all living, and
bb. Marisol Borromeo (Maria B. Putong, Rec. p.
e. Antonieta Ocampo Barcenilla (deceased), survived by 85)
claimant Jose Barcenilla, Jr.
cc. Canuto Borromeo, Jr.
5. Cosme Borromeo, another brother of Vito Borromeo, died
before the war and left the following children: dd. Jose Borromeo

a. Marcial Borromeo ee. Consuelo Borromeo

b. Carlos Borromeo,who died on Jan. 18, 1965,survived ff. Pilar Borromeo

by his wife, Remedios Alfonso, and his only daughter,
Amelinda Borromeo Talam gg. Salud Borromeo

c. Asuncion Borromeo hh. Patrocinio Borromeo Herrera

d. Florentina Borromeo, who died in 1948. c. Maximo Borromeo, who died in July, 1948

e. Amilio Borromeo, who died in 1944. d. Matilde Borromeo, who died on Aug. 6, 1946

f. Carmen Borromeo, who died in 1925. e. Andres Borromeo, who died on Jan. 3, 1923, but
survived by his children:
The last three died leaving no issue.
aa. Maria Borromeo Atega
6. Jose Ma. Borromeo, another brother of Vito Borromeo, died
before the war and left the following children: bb. Luz Borromeo

a. Exequiel Borromeo,who died on December 29, 1949 cc. Hermenegilda Borromeo Nonnenkamp
 dd. Rosario Borromeo
ee. Fe Borromeo Queroz
On April 10, 1969, the trial court, invoking Art. 972 of the Civil
Code, issued an order declaring the following, to the exclusion of
all others, as the intestate heirs of the deceased Vito Borromeo:
1. Jose Cuenco Borromeo
2. Judge Crispin Borromeo
3. Vitaliana Borromeo
4. Patrocinio Borromeo Herrera
5. Salud Borromeo
6. Asuncion Borromeo
7. Marcial Borromeo
8. Amelinda Borromeo de Talam, and
9. The heirs of Canuto Borromeo
The court also ordered that the assets of the intestate estate of
Vito Borromeo shall be divided into 4/9 and 5/9 groups and
distributed in equal and equitable shares among the 9
abovenamed declared intestate heirs.
On April 21 and 30, 1969, the declared heirs, with the exception
of Patrocinio B. Herrera, signed an agreement of partition of the
properties of the deceased Vito Borromeo which was approved
by the trial court, in its order of August 15, 1969. In this same
order, the trial court ordered the administrator, Atty Jesus
Gaboya, Jr., to partition the properties of the deceased in the way
and manner they are divided and partitioned in the said
Agreement of Partition and further ordered that 40% of the market
value of the 4/9 and 5/9 of the estate shall be segregated. All
attorney's fees shall be taken and paid from this segregated
portion.
On August 25, 1972, respondent Fortunato Borromeo, who had
earlier claimed as heir under the forged will, filed a motion before
the trial court praying that he be declared as one of the heirs of
the deceased Vito Borromeo, alleging that he is an illegitimate
son of the deceased and that in the declaration of heirs made by
the trial court, he was omitted, in disregard of the law making him
a forced heir entitled to receive a legitime like all other forced
heirs. As an acknowledged illegitimate child, he stated that he
was entitled to a legitime equal in every case to four-fifths of the
legitime of an acknowledged natural child.
Finding that the motion of Fortunato Borromeo was already
barred by the order of the court dated April 12, 1969 declaring the
persons named therein as the legal heirs of the deceased Vito
Borromeo, the court dismissed the motion on June 25, 1973.
Fortunato Borromeo filed a motion for reconsideration. In the
memorandum he submitted to support his motion for
reconsideration, Fortunato changed the basis for his claim to a
portion of the estate. He asserted and incorporated a Waiver of
Hereditary Rights dated July 31, 1967, supposedly signed by
Pilar N. Borromeo, Maria B. Putong, Jose Borromeo, Canuto V.
Borromeo, Jr., Salud Borromeo, Patrocinio Borromeo-Herrera,
Marcial Borromeo, Asuncion Borromeo, Federico V. Borromeo,
Consuelo B. Morales, Remedios Alfonso and Amelinda B. Talam
In the waiver, five of the nine heirs relinquished to Fortunato their
shares in the disputed estate. The motion was opposed on the
ground that the trial court, acting as a probate court, had no
jurisdiction to take cognizance of the claim; that respondent
Fortunato Borromeo is estopped from asserting the waiver
agreement; that the waiver agreement is void as it was executed
before the declaration of heirs; that the same is void having been
executed before the distribution of the estate and before the
acceptance of the inheritance; and that it is void ab initio and
inexistent for lack of subject matter.
On December 24, 1974, after due hearing, the trial court
concluding that the five declared heirs who signed the waiver
agreement assigning their hereditary rights to Fortunato
Borromeo had lost the same rights, declared the latter as entitled
to 5/9 of the estate of Vito Borromeo.
A motion for reconsideration of this order was denied on July 7,
1975.
In the present petition, the petitioner seeks to annul and set aside
the trial court's order dated December 24, 1974, declaring
respondent Fortunato Borromeo entitled to 5/9 of the estate of
Vito Borromeo and the July 7, 1975 order, denying the motion for
reconsideration.
The petitioner argues that the trial court had no jurisdiction to take
cognizance of the claim of respondent Fortunato Borromeo
because it is not a money claim against the decedent but a claim
for properties, real and personal, which constitute all of the
shares of the heirs in the decedent's estate, heirs who allegedly
waived their rights in his favor. The claim of the private
respondent under the waiver agreement, according to the
petitioner, may be likened to that of a creditor of the heirs which is
improper. He alleges that the claim of the private respondent
under the waiver agreement was filed beyond the time allowed for
filing of claims as it was filed only sometime in 1973, after there
had been a declaration of heirs (April 10, 1969), an agreement of
partition (April 30, 1969), the approval of the agreement of
partition and an order directing the administrator to partition the
estate (August 15, 1969), when in a mere memorandum, the
existence of the waiver agreement was brought out.
It is further argued by the petitioner that the document entitled "
waiver of Hereditary Rights" executed on July 31, 1967, aside
from having been cancelled and revoked on June 29, 1968, by
Tomas L. Borromeo, Fortunato Borromeo and Amelia Borromeo,
is without force and effect because there can be no effective
waiver of hereditary rights before there has been a valid
acceptance of the inheritance the heirs intend to transfer.
Pursuant to Article 1043 of the Civil Code, to make acceptance or
repudiation of inheritance valid, the person must be certain of the
death of the one from whom he is to inherit and of his right to the
inheritance. Since the petitioner and her co-heirs were not certain
of their right to the inheritance until they were declared heirs, their
rights were, therefore, uncertain. This view, according to the
petitioner, is also supported by Article 1057 of the same Code
which directs heirs, devicees, and legatees to signify their
acceptance or repudiation within thirty days after the court has
issued an order for the distribution of the estate.
Respondent Fortunato Borromeo on the other hand, contends
that under Article 1043 of the Civil Code there is no need for a
person to be first declared as heir before he can accept or
repudiate an inheritance. What is required is that he must first be
certain of the death of the person from whom he is to inherit and
that he must be certain of his right to the inheritance. He points
out that at the time of the signing of the waiver document on July
31, 1967, the signatories to the waiver document were certain
that Vito Borromeo was already dead as well as of their rights to
the inheritance as shown in the waiver document itself.
With respect to the issue of jurisdiction of the trial court to pass
upon the validity of the waiver of hereditary rights, respondent
Borromeo asserts that since the waiver or renunciation of
hereditary rights took place after the court assumed jurisdiction
over the properties of the estate it partakes of the nature of a
partition of the properties of the estate needing approval of the
court because it was executed in the course of the proceedings.
lie further maintains that the probate court loses jurisdiction of the
estate only after the payment of all the debts of the estate and the
remaining estate is distributed to those entitled to the same.
The prevailing jurisprudence on waiver of hereditary rights is that
"the properties included in an existing inheritance cannot be
considered as belonging to third persons with respect to the heirs,
who by fiction of law continue the personality of the former. Nor
do such properties have the character of future property, because
the heirs acquire a right to succession from the moment of the
death of the deceased, by principle established in article 657 and
applied by article 661 of the Civil Code, according to which the
heirs succeed the deceased by the mere fact of death. More or
less, time may elapse from the moment of the death of the
deceased until the heirs enter into possession of the hereditary
property, but the acceptance in any event retroacts to the
moment of the death, in accordance with article 989 of the Civil
Code. The right is vested, although conditioned upon the
adjudication of the corresponding hereditary portion." (Osorio v.
Osorio and Ynchausti Steamship Co., 41 Phil., 531). The heirs,
therefore, could waive their hereditary rights in 1967 even if the
order to partition the estate was issued only in 1969.
In this case, however, the purported "Waiver of Hereditary Rights"
cannot be considered to be effective. For a waiver to exist, three
elements are essential: (1) the existence of a right; (2) the
knowledge of the existence thereof; and (3) an intention to
relinquish such right. (People v. Salvador, (CA) 53 O.G. No. 22,
p. 8116, 8120). The intention to waive a right or advantage must
be shown clearly and convincingly, and when the only proof of
intention rests in what a party does, his act should be so
manifestly consistent with, and indicative of an intent to,
voluntarily relinquish the particular right or advantage that no
other reasonable explanation of his conduct is possible (67 C.J.,
311). (Fernandez v. Sebido, et al., 70 Phil., 151, 159).
The circumstances of this case show that the signatories to the
waiver document did not have the clear and convincing intention
to relinquish their rights, Thus: (1) On October 27, 1967.
Fortunato, Tomas, and Amelia Borromeo filed a pleading entitled
"Compliance" wherein they submitted a proposal for the amicable
settlement of the case. In that Compliance, they proposed to
concede to all the eight (8) intestate heirs of Vito Borromeo all
properties, personal and real, including all cash and sums of
money in the hands of the Special Administrator, as of October
31, 1967, not contested or claimed by them in any action then
pending in the Court of First Instance of Cebu. In turn, the heirs
would waive and concede to them all the 14 contested lots. In this
document, the respondent recognizes and concedes that the
petitioner, like the other signatories to the waiver document, is an
heir of the deceased Vito Borromeo, entitled to share in the
estate. This shows that the "Waiver of Hereditary Rights" was
never meant to be what the respondent now purports it to be. Had
the intent been otherwise, there would not be any reason for
Fortunato, Tomas, and Amelia Borromeo to mention the heirs in
the offer to settle the case amicably, and offer to concede to them
parts of the estate of the deceased; (2) On April 21 and 30, 1969,
the majority of the declared heirs executed an Agreement on how
the estate they inherited shall be distributed. This Agreement of
Partition was approved by the trial court on August 15, 1969; (3)
On June 29, 1968, the petitioner, among others, signed a
document entitled Deed of Assignment" purporting to transfer and
assign in favor of the respondent and Tomas and Amelia
Borromeo all her (Patrocinio B. Herrera's) rights, interests, and
participation as an intestate heir in the estate of the deceased
Vito Borromeo. The stated consideration for said assignment was
P100,000.00; (4) On the same date, June 29, 1968, the
respondent Tomas, and Amelia Borromeo (assignees in the
aforementioned deed of assignment) in turn executed a "Deed of
Reconveyance" in favor of the heirs-assignors named in the same
deed of assignment. The stated consideration was P50,000.00;
(5) A Cancellation of Deed of Assignment and Deed of
Reconveyance was signed by Tomas Borromeo and Amelia
Borromeo on October 15, 1968, while Fortunato Borromeo signed
this document on March 24, 1969.
With respect to the issue of jurisdiction, we hold that the trial court
had jurisdiction to pass upon the validity of the waiver agreement.
It must be noted that in Special Proceedings No. 916-R the lower
court disallowed the probate of the will and declared it as fake.
Upon appeal, this Court affirmed the decision of the lower court
on March 30, 1967, in G.R. No. L-18498. Subsequently, several
parties came before the lower court filing claims or petitions
alleging themselves as heirs of the intestate estate of Vito
Borromeo. We see no impediment to the trial court in exercising
jurisdiction and trying the said claims or petitions. Moreover, the
jurisdiction of the trial court extends to matters incidental and
collateral to the exercise of its recognized powers in handling the
settlement of the estate.
In view of the foregoing, the questioned order of the trial court
dated December 24, 1974, is hereby SET ASIDE.
G.R. No. 55000
This case was originally an appeal to the Court of Appeals from
an order of the Court of First Instance of Cebu, Branch 11, dated
December 24, 1974, declaring the waiver document earlier
discussed in G.R. No. 41171 valid. The appellate court certified
this case to this Court as the questions raised are all of law.
The appellants not only assail the validity of the waiver
agreement but they also question the jurisdiction of the lower
court to hear and decide the action filed by claimant Fortunato
Borromeo.
The appellants argue that when the waiver of hereditary right was
executed on July 31, 1967, Pilar Borromeo and her children did
not yet possess or own any hereditary right in the intestate estate
of the deceased Vito Borromeo because said hereditary right was
only acquired and owned by them on April 10, 1969, when the
estate was ordered distributed.
They further argue that in contemplation of law, there is no such
contract of waiver of hereditary right in the present case because
there was no object, which is hereditary right, that could be the
subject matter of said waiver, and, therefore, said waiver of
hereditary right was not only null and void ab initio but was
inexistent.
With respect to the issue of jurisdiction, the appellants contend
that without any formal pleading filed by the lawyers of Fortunato
Borromeo for the approval of the waiver agreement and without
notice to the parties concerned, two things which are necessary
so that the lower court would be vested with authority and
jurisdiction to hear and decide the validity of said waiver
agreement, nevertheless, the lower court set the hearing on
September 25, 1973 and without asking for the requisite pleading.
This resulted in the issuance of the appealed order of December
24, 1974, which approved the validity of the waiver agreement.
The appellants contend that this constitutes an error in the
exercise of jurisdiction.
The appellee on the other hand, maintains that by waiving their
hereditary rights in favor of Fortunato Borromeo, the signatories
to the waiver document tacitly and irrevocably accepted the
inheritance and by virtue of the same act, they lost their rights
because the rights from that moment on became vested in
Fortunato Borromeo.
It is also argued by the appellee that under Article 1043 of the
Civil Code there is no need for a person to be declared as heir
first before he can accept or repudiate an inheritance. What is
required is that he is certain of the death of the person from
whom he is to inherit, and of his right to the inheritance. At the
time of the signing of the waiver document on July 31, 1967, the
signatories to the waiver document were certain that Vito
Borromeo was already dead and they were also certain of their
right to the inheritance as shown by the waiver document itself.
On the allegation of the appellants that the lower court did not
acquire jurisdiction over the claim because of the alleged lack of a
pleading invoking its jurisdiction to decide the claim, the appellee
asserts that on August 23, 1973, the lower court issued an order
specifically calling on all oppositors to the waiver document to
submit their comments within ten days from notice and setting the
same for hearing on September 25, 1973. The appellee also
avers that the claim as to a 5/9 share in the inheritance involves
no question of title to property and, therefore, the probate court
can decide the question.
The issues in this case are similar to the issues raised in G.R. No.
41171. The appellants in this case, who are all declared heirs of
the late Vito Borromeo are contesting the validity of the trial
court's order dated December 24, 1974, declaring Fortunato
Borromeo entitled to 5/9 of the estate of Vito Borromeo under the
waiver agreement.
As stated in G.R. No. 41171, the supposed waiver of hereditary
rights can not be validated. The essential elements of a waiver,
especially the clear and convincing intention to relinquish
hereditary rights, are not found in this case.
The October 27, 1967 proposal for an amicable settlement
conceding to all the eight (8) intestate heirs various properties in
consideration for the heirs giving to the respondent and to Tomas,
and Amelia Borromeo the fourteen (14) contested lots was filed
inspite of the fact that on July 31, 1967, some of the heirs had
allegedly already waived or sold their hereditary rights to the
respondent.
The agreement on how the estate is to be distributed, the June
29, 1968 deed of assignment, the deed of reconveyance, and the
subsequent cancellation of the deed of assignment and deed of
reconveyance all argue against the purported waiver of hereditary
rights.
Concerning the issue of jurisdiction, we have already stated in
G.R. No. 41171 that the trial court acquired jurisdiction to pass
upon the validity of the waiver agreement because the trial court's
jurisdiction extends to matters incidental and collateral to the
exercise of its recognized powers in handling the settlement of
the estate.
The questioned order is, therefore, SET ASIDE.
G.R. No. 62895
A motion dated April 28, 1972, was filed by Atty. Raul M.
Sesbreno, representative of some of the heirs-distributees,
praying for the immediate closure of Special Proceeding No. 916-
R. A similar motion dated May 29, 1979 was filed by Atty. Jose
Amadora. Both motions were grounded on the fact that there was
nothing more to be done after the payment of all the obligations of
the estate since the order of partition and distribution had long
become final.
Alleging that respondent Judge Francisco P. Burgos failed or
refused to resolve the aforesaid motions, petitioner Jose Cuenco
Borromeo-filed a petition for mandamus before the Court of
Appeals to compel the respondent judge to terminate and close
Special Proceedings No. 916-R.
Finding that the inaction of the respondent judge was due to
pending motions to compel the petitioner, as co-administrator, to
submit an inventory of the real properties of the estate and an
accounting of the cash in his hands, pending claims for attorney's
fees, and that mandamus will not lie to compel the performance
of a discretionary function, the appellate court denied the petition
on May 14, 1982. The petitioner's motion for reconsideration was
likewise denied for lack of merit. Hence, this petition.
The petitioner's stand is that the inaction of the respondent judge
on the motion filed on April 28, 1972 for the closure of the
administration proceeding cannot be justified by the filing of the
motion for inventory and accounting because the latter motion
was filed only on March 2, 1979. He claimed that under the then
Constitution, it is the duty of the respondent judge to decide or
resolve a case or matter within three months from the date of its
submission.
The respondents contend that the motion to close the
administration had already been resolved when the respondent
judge cancelled all settings of all incidents previously set in his
court in an order dated June 4, 1979, pursuant to the resolution
and restraining order issued by the Court of Appeals enjoining
him to maintain status quo on the case.
As stated in G.R. No. 41171, on April 21 and 30, 1969, the
declared heirs, with the exception of Patrocinio B. Herrera, signed
an agreement of partition of the properties of the deceased Vito
Borromeo which was approved by the trial court, in its order dated
August 15, 1969. In this same order, the trial court ordered the
administrator, Atty. Jesus Gaboya, Jr., to partition the properties
of the deceased in the way and manner they are divided and
partitioned in the said Agreement of Partition and further ordered
that 40% of the market value of the 4/9 and 5/9 of the estate shall
be segregated and reserved for attorney's fees.
According to the manifestation of Judge Francisco Burgos dated
July 5, 1982, (p. 197, Rollo, G. R. No. 41171) his court has not
finally distributed to the nine (9) declared heirs the properties due
to the following circumstances:
1. The court's determination of the market value of the
estate in order to segregate the 40% reserved for
attorney's fees;
2. The order of December 24, 1974, declaring Fortunato
Borromeo as beneficiary of the 5/9 of the estate because
of the waiver agreement signed by the heirs representing
the 5/9 group which is still pending resolution by this
Court (G.R. No. 4117 1);
3. The refusal of administrator Jose Cuenco Borromeo to
render his accounting; and
 4. The claim of Marcela Villegas for 1/2 of the estate
causing annotations of notices of lis pendens on the
different titles of the properties of the estate.
Since there are still real properties of the estate that were not vet
distributed to some of the declared heirs, particularly the 5/9
group of heirs due to the pending resolution of the waiver
agreement, this Court in its resolution of June 15, 1983, required
the judge of the Court of First Instance of Cebu, Branch 11, to
expedite the determination of Special Proceedings No. 916-R and
ordered the co-administrator Jose Cuenco Borromeo to submit an
inventory of real properties of the estate and to render an
accounting of cash and bank deposits realized from rents of
several properties.
The matter of attorney's fees shall be discussed in G.R. No.
65995.
Considering the pronouncements stated in:
1. G.R. No. 41171 & G.R. No. 55000, setting aside the
Order of the trial court dated December 24, 1974;
2. G.R. No. 63818, denying the petition for review seeking
to modify the decision of the Intermediate Appellate Court
insofar as it disqualifies and inhibits Judge Francisco P.
Burgos from further hearing the Intestate Estate of Vito
Borromeo and ordering the remand of the case to the
Executive,Judge of the Regional trial Court of Cebu for re-
raffling; and
3. G.R. No. 65995, granting the petition to restrain the
respondents from further acting on any and all incidents in
Special proceedings No. 916-11 because of the
affirmation of the decision of the Intermediate Appellate
Court in G.R. No. 63818.
the trial court may now terminate and close Special Proceedings
No. 916-R, subject to the submission of an inventory of the real
properties of the estate and an accounting of the call and bank
deposits of the petitioner, as co-administrator of the estate, if he
has not vet done so, as required by this Court in its Resolution
dated June 15, 1983. This must be effected with all deliberate
speed.
G.R. No. 63818
On June 9, 1979, respondents Jose Cuenco Borromeo and Petra
0. Borromeo filed a motion for inhibition in the Court of First
Instance of Cebu, Branch 11, presided over by Judge Francisco
P. Burgos to inhibit the judge from further acting in Special
Proceedings No. 916-R. 'The movants alleged, among others, the
following:
xxx xxx xxx
6. To keep the agitation to sell moving, Atty. Antigua filed
a motion for the production of the certificates of title and to
deposit the same with the Branch Clerk of Court,
presumably for the ready inspection of interested buyers.
Said motion was granted by the Hon. Court in its order of
October 2, 1978 which, however, became the subject of
various motions for reconsideration from heirs-distributees
who contended that as owners they cannot be deprived of
their titles for the flimsy reasons advanced by Atty,
Antigua. In view of the motions for reconsideration, Atty
Antigua ultimately withdraw his motions for production of
titles.
7. The incident concerning the production of titles
triggered another incident involving Atty. Raul H.
Sesbreno who was then the counsel of herein movants
Petra O. Borromeo and Amelinda B. Talam In connection
with said incident, Atty. Sesbreno filed a pleading which
the tion. presiding, Judge Considered direct contempt
because among others, Atty. Sesbreno insinuated that the
Hon. Presiding Judge stands to receive "fat commission"
from the sale of the entire property. Indeed, Atty.
Sesbreno was seriously in danger of being declared in
contempt of court with the dim prospect of suspension
from the practice of his profession. But obviously to
extricate himself from the prospect of contempt and
suspension. Atty. Sesbreno chose rapproachment and
ultimately joined forces with Atty. Antigua, et al., who,
together, continued to harass administrator
xxx xxx xxx
9. The herein movants are informed and so they allege,
that a brother of the Hon. Presiding Judge is married to a
sister of Atty. Domingo L. Antigua.
10. There is now a clear tug of war bet ween Atty.
Antigua, et al. who are agitating for the sale of the entire
estate or to buy out the individual heirs, on the one hand,
and the herein movants, on the other, who are not willing
to sell their distributive shares under the terms and
conditions presently proposed. In this tug of war, a pattern
of harassment has become apparent against the herein
movants, especially Jose Cuenco Borromeo. Among the
harassments employed by Atty Antigua et al. are the
pending motions for the removal of administrator Jose
Cuenco Borromeo, the subpoena duces tecum issued to
the bank which seeks to invade into the privacy of the
personal account of Jose Cuenco Borromeo, and the
other matters mentioned in paragraph 8 hereof. More
harassment motions are expected until the herein
movants shall finally yield to the proposed sale. In such a
situation, the herein movants beg for an entirely
independent and impartial judge to pass upon the merits
of said incidents.
11. Should the Hon. Presiding Judge continue to sit and
take cognizance of this proceeding, including the
incidents above-mentioned, he is liable to be
misunderstood as being biased in favor of Atty Antigua, et
al. and prejudiced against the herein movants. Incidents
which may create this impression need not be
enumerated herein. (pp. 39-41, Rollo)
The motion for inhibition was denied by Judge Francisco P.
Burgos. Their motion for reconsideration having been denied, the
private respondents filed a petition for certiorari and/or prohibition
with preliminary injunction before the Intermediate Appellate
Court.
In the appellate court, the private respondents alleged, among
others, the following:
xxx xxx xxx
16. With all due respect, petitioners regret the necessity of
having to state herein that respondent Hon. Francisco P.
Burgos has shown undue interest in pursing the sale
initiated by Atty. Domingo L. Antigua, et al. Significantly, a
brother of respondent Hon. Francisco P. Burgos is
married to a sister of Atty. Domingo L. Antigua.
17. Evidence the proposed sale of the entire properties of
the estate cannot be legally done without the conformity
of the heirs-distributees because the certificates of title
are already registered in their names Hence, in pursuit of
the agitation to sell, respondent Hon. Francisco P. Burgos
urged the heirs-distributees to sell the entire property
based on the rationale that proceeds thereof deposited in
the bank will earn interest more than the present income
of the so called estate. Most of the heirs-distributees,
however. have been petitioner timid to say their piece.
Only the 4/9 group of heirs led by Jose Cuenco Borromeo
have had the courage to stand up and refuse the proposal
to sell clearly favored by respondent Hon. Francisco P.
Burgos.
xxx xxx xxx
20. Petitioners will refrain from discussing herein the
merits of the shotgun motion of Atty. Domingo L. Antigua
as well as other incidents now pending in the court below
which smack of harassment against the herein petitioners.
For, regardless of the merits of said incidents, petitioners
respectfully contend that it is highly improper for
respondent Hon. Francisco P. Burgos to continue to
preside over Sp. Proc. No. 916-R by reason of the
following circumstances:
(a) He has shown undue interest in the sale of the
properties as initiated by Atty. Domingo L. Antigua
whose sister is married to a brother of respondent.
(b) The proposed sale cannot be legally done
without the conformity of the heirs-distributees,
and petitioners have openly refused the sale, to
the great disappointment of respondent.
(c) The shot gun motion of Atty. Antigua and
similar incidents are clearly intended to harass
and embarrass administrator Jose Cuenco
Borromeo in order to pressure him into acceding
to the proposed sale.
(d) Respondent has shown bias and prejudice
against petitioners by failing to resolve the claim
for attorney's fees filed by Jose Cuenco Borromeo
and the late Crispin Borromeo. Similar claims by
the other lawyers were resolved by respondent
after petitioners refused the proposed sale. (pp.
41-43, Rollo)
On March 1, 1983, the appellate court rendered its decision
granting the petition for certiorari and/or prohibition and
disqualifying Judge Francisco P. Burgos from taking further
cognizance of Special Proceedings No. 916-R. The court also
ordered the transmission of the records of the case to the
Executive Judge of the Regional Trial Court of Region VII for re-
raffling.
A motion for reconsideration of the decision was denied by the
appellate court on April 11, 1983. Hence, the present petition for
review seeking to modify the decision of the Intermediate
Appellate Court insofar as it disqualifies and inhibits Judge
Francisco P. Burgos from further hearing the case of Intestate
Estate of Vito Borromeo and orders the remand of the case to the
Executive Judge of the Regional Trial Court of Cebu for re-
raffling.
The principal issue in this case has become moot and academic
because Judge Francisco P. Burgos decided to retire from the
Regional Trial Court of Cebu sometime before the latest
reorganization of the judiciary. However, we decide the petition
on its merits for the guidance of the judge to whom this case will
be reassigned and others concerned.
The petitioners deny that respondent Jose Cuenco Borromeo has
been harassed. They contend that Judge Burgos has benn
shown unusual interest in the proposed sale of the entire estate
for P6,700,000.00 in favor of the buyers of Atty. Antigua. They
claim that this disinterest is shown by the judge's order of March
2, 1979 assessing the property of the estate at P15,000,000.00.
They add that he only ordered the administrator to sell so much of
the properties of the estate to pay the attorney's fees of the
lawyers-claimants. To them, the inhibition of Judge Burgos would
have been unreasonable because his orders against the failure of
Jose Cuenco Borromeo, as administrator, to give an accounting
and inventory of the estate were all affirmed by the appellate
court. They claim that the respondent court, should also have
taken judicial notice of the resolution of this Court directing the
said judge to "expedite the settlement and adjudication of the
case" in G.R. No. 54232. And finally, they state that the
disqualification of judge Burgos would delay further the closing of
the administration proceeding as he is the only judge who is
conversant with the 47 volumes of the records of the case.
Respondent Jose Cuenco Borromeo, to show that he had been
harassed. countered that Judge Burgos appointed Ricardo V.
Reyes as co-administrator of the estate on October 11, 1972, yet
Borromeo was singled out to make an accounting of what t he
was supposed to have received as rentals for the land upon
which the Juliana Trade Center is erected, from January, 1977 to
February 1982, inclusive, without mentioning the withholding tax
for the Bureau of Internal Revenue. In order to bolster the
agitation to sell as proposed by Domingo L. Antigua, Judge
Burgos invited Antonio Barredo, Jr., to a series of conferences
from February 26 to 28, 1979. During the conferences, Atty.
Antonio Barredo, Jr., offered to buy the shares of the heirs-
distributees presumably to cover up the projected sale initiated by
Atty. Antigua.
On March 2, 1979, or two days after the conferences, a motion
was filed by petitioner Domingo L. Antigua praying that Jose
Cuenco Borromeo be required to file an inventory when he has
already filed one to account for cash, a report on which the
administrators had already rendered: and to appear and be
examined under oath in a proceeding conducted by Judge
Burgos lt was also prayed that subpoena duces tecum be issued
for the appearance of the Manager of the Consolidated Bank and
Trust Co., bringing all the bank records in the name of Jose
Cuenco Borromeo jointly with his wife as well as the appearance
of heirs-distributees Amelinda Borromeo Talam and another heir
distributee Vitaliana Borromeo. Simultaneously with the filing of
the motion of Domingo Antigua, Atty. Raul H. Sesbreno filed a
request for the issuance of subpoena duces tecum to the
Manager of Consolidated Bank and 'Trust Co., Inc.; Register of
Deeds of Cebu City; Register of Deeds for the Province of Cebu
and another subpoena duces tecum to Atty. Jose Cuenco
Borromeo.
On the same date, the Branch Clerk of Court issued a subpoena
duces tecum to the Managert of the bank, the Register of deeds
for the City of Cebu, the Register of Deeds for the Province, of
Cebu. and to Jose Cuenco Borromeo.
On the following day, March 3, 1979, Atty Gaudioso v.
Villagonzalo in behalf of the heirs of Marcial Borromeo who had a
common cause with Atty Barredo, Jr., joined petitioner Domingo
L. Antigua by filing a motion for relief of the administrator.
On March 5, 1979, Atty. Villagonzalo filed a request for the
issuance of a subpoena duces tecum to private respondent Jose
Cuenco Borromeo to bring and produce all the owners" copies of
the titles in the court presided order by Judge Burgos.
Consequently. the Branch Clerk of Court issued a
subpoena duces tecum commanding Atty. Jose Cuenco
Borromeo to bring and produce the titles in court.
All the above-incidents were set for hearing on June 7, 1979 but
on June 14, 1979, before the date of the hearing, Judge Burgos
issued an order denying the private respondents' motion for
reconsideration and the motion to quash the subpoena. 1avvphi1
It was further argued by the private respondents that if ,judge
Francisco P. Burgos is not inhibited or disqualified from trying Sp.
Proc. No. 916-R, there would be a miscarriage of justice Because
for the past twelve years, he had not done anything towards the
closure of the estate proceedings except to sell the properties of
the heirs-distributees as initiated by petitioner Domingo L. Antigua
at 6.7 million pesos while the Intestate Court had already
evaluated it at 15 million pesos.
The allegations of the private respondents in their motion for
inhibition, more specifically, the insistence of the trial judge to sell
the entire estate at P6,700,000.00, where 4/9 group of heirs
objected, cannot easily be ignored. Suspicion of partiality on the
part of a trial judge must be avoided at all costs. In the case
of Bautista v. Rebeuno (81 SCRA 535), this Court stated:
... The Judge must maintain and preserve the trust and
faith of the parties litigants. He must hold himself above
reproach and suspicion. At the very first sign of lack of
faith and trust to his actions, whether well grounded or
not, the Judge has no other alternative but inhibit himself
from the case. A judge may not be legally Prohibited from
sitting in a litigation, but when circumstances appear that
will induce doubt to his honest actuations and probity in
favor or of either partly or incite such state of mind, he
should conduct a careful self-examination. He should
exercise his discretion in a way that the people's faith in
the Courts of Justice is not impaired, "The better course
for the Judge under such circumstances is to disqualify
himself "That way he avoids being misunderstood, his
reputation for probity and objectivity is preserve ed. what
is more important, the Ideal of impartial administration of
justice is lived up to.
In this case, the fervent distrust of the private respondents is
based on sound reasons. As Earlier stated, however, the petition
for review seeking to modify the decision of the Intermediate
Appellate Court insofar as it disqualifies and inhibits Judge
Francisco P. Burgos from further hearing the Intestate Estate of
Vito Borromeo case and ordering the remand of the case to the
Executive Judge of the Regional Trial Court for re-raffling should
be DENIED for the decision is not only valid but the issue itself
has become moot and academic.
G.R. No. 65995
The petitioners seek to restrain the respondents from further
acting on any and all incidents in Special Proceedings No. 916-R
during the pendency of this petition and No. 63818. They also
pray that all acts of the respondents related to the said special
proceedings after March 1, 1983 when the respondent Judge was
disqualified by the appellate court be declared null and void and
without force and effect whatsoever.
The petitioners state that the respondent Judge has set for
hearing all incidents in Special Proceedings No. 916-R, including
the reversion from the heirs-distributees to the estate, of the
distributed properties already titled in their names as early as
1970, notwithstanding the pending inhibition case elevated before
this Court which is docketed as G.R. No. 63818.
The petitioners further argue that the present status of Special
Proceeding No. 916-R requires only the appraisal of the
attorney's fees of the lawyers-claimants who were individually
hired by their respective heirs-clients, so their attorney's fees
should be legally charged against their respective clients and not
against the estate.
On the other hand, the respondents maintain that the petition is a
dilatory one and barred by res judicata because this Court on July
8, 1981, in G.R. No. 54232 directed the respondent Judge to
expedite the settlement and liquidation of the decedent's estate.
They claim that this resolution, which was already final and
executory, was in effect reversed and nullified by the Intermediate
Appellate Court in its case-AC G.R.-No. SP - 11145 — when it
granted the petition for certiorari and or prohibition and
disqualified Judge Francisco P. Burgos from taking further
cognizance of Special Proceedings No. 916R as well as ordering
the transmission of the records of the case to the Executive
Judge of the Regional Trial Court of Region VII for re-raffling on
March 1, 1983, which was appealed to this Court by means of a
Petition for Review (G.R. No. 63818).
We agree with the petitioners' contention that attorney's fees are
not the obligation of the estate but of the individual heirs who
individually hired their respective lawyers. The portion, therefore,
of the Order of August 15, 1969, segregating the exhorbitantly
excessive amount of 40% of the market value of the estate from
which attorney's fees shall be taken and paid should be deleted.
Due to our affirmance of the decision of the Intermediate
Appellate Court in G.R. No. 63818, we grant the petition.
WHEREFORE, —
(1) In G.R. No. 41171, the order of the respondent judge
dated December 24, 1974, declaring the respondent
entitled to 5/9 of the estate of the late Vito Borromeo and
the order dated July 7, 1975, denying the petitioner's
motion for reconsideration of the aforementioned order
are hereby SET ASIDE for being NULL and VOID;
(2) In G.R. No. 55000, the order of the trial court declaring
the waiver document valid is hereby SET ASIDE;
(3) In G.R. No. 63818, the petition is hereby DENIED. The
issue in the decision of the Intermediate Appellate Court
disqualifying and ordering the inhibition of Judge
Francisco P. Burgos from further hearing Special
Proceedings No. 916-R is declared moot and academic.
The judge who has taken over the sala of retired Judge
Francisco P. Burgos shall immediately conduct hearings
with a view to terminating the proceedings. In the event
that the successor-judge is likewise disqualified, the order
of the Intermediate Appellate Court directing the
Executive Judge of the Regional Trial Court of Cebu to re-
raffle the case shall be implemented:
(4) In G.R. No. 65995, the petition is hereby GRANTED.
'The issue seeking to restrain Judge Francisco P. Burgos
from further acting in G.R. No. 63818 is MOOT and
ACADEMIC:
(5) In G.R, No, 62895, the trial court is hereby ordered to
speedily terminate the close Special Proceedings No.
916-R, subject to the submission of an inventory of the
real properties of the estate and an accounting of the
 cash and bank deposits by the petitioner-administrator of
the estate as required by this Court in its Resolution dated
June 15, 1983; and
(6) The portion of the Order of August 15, 1969,
segregating 40% of the market value of the estate from
which attorney's fees shall be taken and paid should be,
as it is hereby DELETED. The lawyers should collect from
the heirs-distributees who individually hired them,
attorney's fees according to the nature of the services
rendered but in amounts which should not exceed more
than 20% of the market value of the property the latter
acquired from the estate as beneficiaries.
SO ORDERED.
G.R. No. 129008 January 13, 2004
TEODORA A. RIOFERIO, VERONICA O. EVANGELISTA
assisted by her husband ZALDY EVANGELISTA, ALBERTO
ORFINADA, and ROWENA O. UNGOS, assisted by her
husband BEDA UNGOS, petitioners,
vs.
COURT OF APPEALS, ESPERANZA P. ORFINADA,
LOURDES P. ORFINADA, ALFONSO ORFINADA, NANCY P.
ORFINADA, ALFONSO JAMES P. ORFINADA, CHRISTOPHER
P. ORFINADA and ANGELO P. ORFINADA,respondents.
DECISION
TINGA, J.:
Whether the heirs may bring suit to recover property of the estate
pending the appointment of an administrator is the issue in this
case.
This Petition for Review on Certiorari, under Rule 45 of the Rules
of Court, seeks to set aside the Decision1 of the Court of Appeals
in CA-G.R. SP No. 42053 dated January 31, 1997, as well as
its Resolution2 dated March 26, 1997, denying petitioners’ motion
for reconsideration.
On May 13, 1995, Alfonso P. Orfinada, Jr. died without a will in
Angeles City leaving several personal and real properties located
in Angeles City, Dagupan City and Kalookan City.3 He also left a
widow, respondent Esperanza P. Orfinada, whom he married on
July 11, 1960 and with whom he had seven children who are the
herein respondents, namely: Lourdes P. Orfinada, Alfonso
"Clyde" P. Orfinada, Nancy P. Orfinada-Happenden, Alfonso
James P. Orfinada, Christopher P. Orfinada, Alfonso Mike P.
Orfinada (deceased) and Angelo P. Orfinada.4
Apart from the respondents, the demise of the decedent left in
mourning his paramour and their children. They are petitioner
Teodora Riofero, who became a part of his life when he entered
into an extra-marital relationship with her during the subsistence
of his marriage to Esperanza sometime in 1965, and co-
petitioners Veronica5, Alberto and Rowena.6
On November 14, 1995, respondents Alfonso James and Lourdes
Orfinada discovered that on June 29, 1995, petitioner Teodora
Rioferio and her children executed an Extrajudicial Settlement of
Estate of a Deceased Person with Quitclaim involving the
properties of the estate of the decedent located in Dagupan City
and that accordingly, the Registry of Deeds in Dagupan issued
Certificates of Titles Nos. 63983, 63984 and 63985 in favor of
petitioners Teodora Rioferio, Veronica Orfinada-Evangelista,
Alberto Orfinada and Rowena Orfinada-Ungos. Respondents also
found out that petitioners were able to obtain a loan
of P700,000.00 from the Rural Bank of Mangaldan Inc. by
executing a Real Estate Mortgage over the properties subject of
the extra-judicial settlement.7
On December 1, 1995, respondent Alfonso "Clyde" P. Orfinada III
filed a Petition for Letters of Administration docketed as S.P.
Case No. 5118 before the Regional Trial Court of Angeles City,
praying that letters of administration encompassing the estate of
Alfonso P. Orfinada, Jr. be issued to him.8
On December 4, 1995, respondents filed a Complaint for the
Annulment/Rescission of Extra Judicial Settlement of Estate of a
Deceased Person with Quitclaim, Real Estate Mortgage and
Cancellation of Transfer Certificate of Titles with Nos. 63983,
63985 and 63984 and Other Related Documents with Damages
against petitioners, the Rural Bank of Mangaldan, Inc. and the
Register of Deeds of Dagupan City before the Regional Trial
Court, Branch 42, Dagupan City.9
On February 5, 1996, petitioners filed their Answer to the
aforesaid complaint interposing the defense that the property
subject of the contested deed of extra-judicial settlement
pertained to the properties originally belonging to the parents of
Teodora Riofero10 and that the titles thereof were delivered to her
as an advance inheritance but the decedent had managed to
register them in his name.11 Petitioners also raised the affirmative
defense that respondents are not the real parties-in-interest but
rather the Estate of Alfonso O. Orfinada, Jr. in view of the
pendency of the administration proceedings.12 On April 29, 1996,
petitioners filed a Motion to Set Affirmative Defenses for
Hearing13 on the aforesaid ground.
The lower court denied the motion in its Order14 dated June 27,
1996, on the ground that respondents, as heirs, are the real
parties-in-interest especially in the absence of an administrator
who is yet to be appointed in S.P. Case No. 5118. Petitioners
moved for its reconsideration15 but the motion was likewise
denied.16
This prompted petitioners to file before the Court of Appeals
their Petition for Certiorari under Rule 65 of the Rules of Court
docketed as CA G.R. S.P. No. 42053.17 Petitioners averred that
the RTC committed grave abuse of discretion in issuing the
assailed order which denied the dismissal of the case on the
ground that the proper party to file the complaint for the
annulment of the extrajudicial settlement of the estate of the
deceased is the estate of the decedent and not the respondents.18
The Court of Appeals rendered the assailed Decision19 dated
January 31, 1997, stating that it discerned no grave abuse of
discretion amounting to lack or excess of jurisdiction by the public
respondent judge when he denied petitioners’ motion to set
affirmative defenses for hearing in view of its discretionary nature.
A Motion for Reconsideration was filed by petitioners but it was
denied.20 Hence, the petition before this Court.
The issue presented by the petitioners before this Court is
whether the heirs have legal standing to prosecute the rights
belonging to the deceased subsequent to the commencement of
the administration proceedings.21
Petitioners vehemently fault the lower court for denying their
motion to set the case for preliminary hearing on their affirmative
defense that the proper party to bring the action is the estate of
the decedent and not the respondents. It must be stressed that
the holding of a preliminary hearing on an affirmative defense lies
in the discretion of the court. This is clear from the Rules of Court,
thus:
SEC. 5. Pleadings grounds as affirmative defenses.- Any
of the grounds for dismissal provided for in this rule,
except improper venue, may be pleaded as an affirmative
defense, and a preliminary hearing may be had thereon
as if a motion to dismiss had been filed.22 (Emphasis
supplied.)
Certainly, the incorporation of the word "may" in the provision is
clearly indicative of the optional character of the preliminary
hearing. The word denotes discretion and cannot be construed as
having a mandatory effect.23Subsequently, the electivity of the
proceeding was firmed up beyond cavil by the 1997 Rules of Civil
Procedure with the inclusion of the phrase "in the discretion of the
Court", apart from the retention of the word "may" in Section 6,24in
Rule 16 thereof.
Just as no blame of abuse of discretion can be laid on the lower
court’s doorstep for not hearing petitioners’ affirmative defense, it
cannot likewise be faulted for recognizing the legal standing of
the respondents as heirs to bring the suit.
Pending the filing of administration proceedings, the heirs without
doubt have legal personality to bring suit in behalf of the estate of
the decedent in accordance with the provision of Article 777 of
the New Civil Code "that (t)he rights to succession are transmitted
from the moment of the death of the decedent." The provision in
turn is the foundation of the principle that the property, rights and
obligations to the extent and value of the inheritance of a person
are transmitted through his death to another or others by his will
or by operation of law.25
Even if administration proceedings have already been
commenced, the heirs may still bring the suit if an administrator
has not yet been appointed. This is the proper modality despite
the total lack of advertence to the heirs in the rules on party
representation, namely Section 3, Rule 326 and Section 2, Rule
8727 of the Rules of Court. In fact, in the case of Gochan v.
Young,28 this Court recognized the legal standing of the heirs to
represent the rights and properties of the decedent under
administration pending the appointment of an administrator. Thus:
The above-quoted rules,29 while permitting an executor or
administrator to represent or to bring suits on behalf of the
deceased, do not prohibit the heirs from representing the
deceased. These rules are easily applicable to cases
in which an administrator has already been
appointed. But no rule categorically addresses the
situation in which special proceedings for the
settlement of an estate have already been instituted,
yet no administrator has been appointed. In such
instances, the heirs cannot be expected to wait for the
appointment of an administrator; then wait further to see if
the administrator appointed would care enough to file a
suit to protect the rights and the interests of the deceased;
and in the meantime do nothing while the rights and the
properties of the decedent are violated or dissipated.
Even if there is an appointed administrator, jurisprudence
recognizes two exceptions, viz: (1) if the executor or administrator
is unwilling or refuses to bring suit;30 and (2) when the
administrator is alleged to have participated in the act complained
of31 and he is made a party defendant.32 Evidently, the necessity
for the heirs to seek judicial relief to recover property of the estate
is as compelling when there is no appointed administrator, if not
more, as where there is an appointed administrator but he is

either disinclined to bring suit or is one of the guilty parties
himself.
All told, therefore, the rule that the heirs have no legal standing to
sue for the recovery of property of the estate during the pendency
of administration proceedings has three exceptions, the third
being when there is no appointed administrator such as in this
case.
4
Ibid.
5
The Complaint for Annulment/Rescission of the
Extrajudicial Settlement of the Estate of a Deceased
Person dated December 2, 1995 contains an allegation
under paragraph 9 that Veronica is not one of the
illegitimate children of the decedent Alfonso P. Orfinada,
Jr. by Teodora Riofero but of one Alonzo Orfinada.

6
As the appellate court did not commit an error of law in upholding Rollo, p. 95.
the order of the lower court, recourse to this Court is not
warranted. 7
Id. at 95-96.

WHEREFORE, the petition for review is DENIED. The assailed 8

Id. at 96.
decision and resolution of the Court of Appeals are hereby
AFFIRMED. No costs. 9
Id. at 28-37.

SO ORDERED. 10
CA Rollo, p. 38.

Puno, (Chairman), Quisumbing, Austria-Martinez, and Callejo, 11

Id. at 10.
Sr., JJ., concur.
12
Id. at 38.

13
Rollo, pp. 107-108.
Footnotes
14
CA Rollo, pp. 113-116.

15
1 Id. at 32-34.
Rollo, pp. 17-20.
16
2 Id. at 39-40.
Id, at 21-22.
17
3 Id. at 1-12.
Id. at 95.
18
Id. at 7.
19
Rollo, pp. 17-20.
20
Id. at 21-22.
21
Id. at 124.
22
Rule 16 of the Rules of Court. It is Section 6, Rule 16 of
the 1997 Rules of Civil Procedure which reads:
Section 6. Pleading grounds as affirmative
defenses. – If no motion to dismiss has been filed,
any of the grounds for dismissal provided for in
this Rule may be pleaded as an affirmative
defense in the answer and, in the discretion of
the court, a preliminary hearing may be had
thereon as if a motion to dismiss had been filed.
The dismissal of the complaint under this section
shall be without prejudice to the prosecution in the
same or separate action of a counterclaim
pleaded in the answer. (Emphasis supplied)
23
Republic Planters Bank v. Agana, Sr., G.R. No. 51765,
269 SCRA 1, 12 (1997).
24
Supra note 22.
25
Coronel v. Court of Appeals, G.R. No. 103577, October
7, 1996, 263 SCRA 15.
26
Section 3 of Rule 3 of the Rules of Court:
Sec. 3. Representatives as parties. - Where the
action is allowed to be prosecuted or defended by
a representative or someone acting in a fiduciary
capacity, the beneficiary shall be included in the
title of the case and shall be deemed to be the
real party in interest. A representative may be a
trustee of an express trust, a guardian, an
executor or administrator, or a party authorized by
law or these Rules. An agent acting in his own
name and for the benefit of an undisclosed
principal may sue or be sued without joining the
principal except when the contract involves things
belonging to the principal.
27
Section 2 of Rule 87:
Sec. 2. Executor or administrator may bring or
defend actions which survive. — For the recovery
or protection of the property or rights of the
deceased, an executor or administrator may bring
or defend, in the right of the deceased, actions for
causes which survive."
G.R. No. L-54919 May 30, 1984
POLLY CAYETANO, petitioner,
vs.
HON. TOMAS T. LEONIDAS, in his capacity as the Presiding
Judge of Branch XXXVIII, Court of First Instance of Manila
and NENITA CAMPOS PAGUIA, respondents.
Ermelo P. Guzman for petitioner.
Armando Z. Gonzales for private respondent.

GUTIERREZ, JR., J.:
This is a petition for review on certiorari, seeking to annul the
order of the respondent judge of the Court of First Instance of
Manila, Branch XXXVIII, which admitted to and allowed the
probate of the last will and testament of Adoracion C. Campos,
after an ex-parte presentation of evidence by herein private
respondent.
On January 31, 1977, Adoracion C. Campos died, leaving her
father, petitioner Hermogenes Campos and her sisters, private
respondent Nenita C. Paguia, Remedios C. Lopez and Marieta C.
Medina as the surviving heirs. As Hermogenes Campos was the
only compulsory heir, he executed an Affidavit of Adjudication
under Rule 74, Section I of the Rules of Court whereby he
adjudicated unto himself the ownership of the entire estate of the
deceased Adoracion Campos.
Eleven months after, on November 25, 1977, Nenita C. Paguia
filed a petition for the reprobate of a will of the deceased,
Adoracion Campos, which was allegedly executed in the United
States and for her appointment as administratrix of the estate of
the deceased testatrix.
In her petition, Nenita alleged that the testatrix was an American
citizen at the time of her death and was a permanent resident of
4633 Ditman Street, Philadelphia, Pennsylvania, U.S.A.; that the
testatrix died in Manila on January 31, 1977 while temporarily
residing with her sister at 2167 Leveriza, Malate, Manila; that
during her lifetime, the testatrix made her last wig and testament
on July 10, 1975, according to the laws of Pennsylvania, U.S.A.,
nominating Wilfredo Barzaga of New Jersey as executor; that
after the testatrix death, her last will and testament was
presented, probated, allowed, and registered with the Registry of
Wins at the County of Philadelphia, U.S.A., that Clement L.
McLaughlin, the administrator who was appointed after Dr.
Barzaga had declined and waived his appointment as executor in
favor of the former, is also a resident of Philadelphia, U.S.A., and
that therefore, there is an urgent need for the appointment of an
administratrix to administer and eventually distribute the
properties of the estate located in the Philippines.
On January 11, 1978, an opposition to the reprobate of the will
was filed by herein petitioner alleging among other things, that he
has every reason to believe that the will in question is a forgery;
that the intrinsic provisions of the will are null and void; and that
even if pertinent American laws on intrinsic provisions are
invoked, the same could not apply inasmuch as they would work
injustice and injury to him.
On December 1, 1978, however, the petitioner through his
counsel, Atty. Franco Loyola, filed a Motion to Dismiss Opposition
(With Waiver of Rights or Interests) stating that he "has been able
to verify the veracity thereof (of the will) and now confirms the
same to be truly the probated will of his daughter Adoracion."
Hence, an ex-partepresentation of evidence for the reprobate of
the questioned will was made.
On January 10, 1979, the respondent judge issued an order, to
wit:
At the hearing, it has been satisfactorily
established that Adoracion C. Campos, in her
lifetime, was a citizen of the United States of
America with a permanent residence at 4633
Ditman Street, Philadelphia, PA 19124, (Exhibit D)
that when alive, Adoracion C. Campos executed a
 Last Will and Testament in the county of
Philadelphia, Pennsylvania, U.S.A., according to
the laws thereat (Exhibits E-3 to E-3-b) that while
in temporary sojourn in the Philippines, Adoracion
C. Campos died in the City of Manila (Exhibit C)
leaving property both in the Philippines and in the
United States of America; that the Last Will and
Testament of the late Adoracion C. Campos was
admitted and granted probate by the Orphan's
Court Division of the Court of Common Pleas, the
probate court of the Commonwealth of
Pennsylvania, County of Philadelphia, U.S.A., and
letters of administration were issued in favor of
Clement J. McLaughlin all in accordance with the
laws of the said foreign country on procedure and
allowance of wills (Exhibits E to E-10); and that
the petitioner is not suffering from any
disqualification which would render her unfit as
administratrix of the estate in the Philippines of
the late Adoracion C. Campos.
WHEREFORE, the Last Will and Testament of the
late Adoracion C. Campos is hereby admitted to
and allowed probate in the Philippines, and Nenita
Campos Paguia is hereby appointed
Administratrix of the estate of said decedent; let
Letters of Administration with the Will annexed
issue in favor of said Administratrix upon her filing
of a bond in the amount of P5,000.00 conditioned
under the provisions of Section I, Rule 81 of the
Rules of Court.
Another manifestation was filed by the petitioner on April 14,
1979, confirming the withdrawal of his opposition, acknowledging
the same to be his voluntary act and deed.
On May 25, 1979, Hermogenes Campos filed a petition for relief,
praying that the order allowing the will be set aside on the ground
that the withdrawal of his opposition to the same was secured
through fraudulent means. According to him, the "Motion to
Dismiss Opposition" was inserted among the papers which he
signed in connection with two Deeds of Conditional Sales which
he executed with the Construction and Development Corporation
of the Philippines (CDCP). He also alleged that the lawyer who
filed the withdrawal of the opposition was not his counsel-of-
record in the special proceedings case.
The petition for relief was set for hearing but the petitioner failed
to appear. He made several motions for postponement until the
hearing was set on May 29, 1980.
On May 18, 1980, petitioner filed another motion entitled "Motion
to Vacate and/or Set Aside the Order of January 10, 1979, and/or
dismiss the case for lack of jurisdiction. In this motion, the notice
of hearing provided:
Please include this motion in your calendar for
hearing on May 29, 1980 at 8:30 in the morning
for submission for reconsideration and resolution
of the Honorable Court. Until this Motion is
resolved, may I also request for the future setting
of the case for hearing on the Oppositor's motion
to set aside previously filed.
The hearing of May 29, 1980 was re-set by the court for June 19,
1980. When the case was called for hearing on this date, the
counsel for petitioner tried to argue his motion to vacate instead
of adducing evidence in support of the petition for relief. Thus, the
respondent judge issued an order dismissing the petition for relief
for failure to present evidence in support thereof. Petitioner filed a
motion for reconsideration but the same was denied. In the same
order, respondent judge also denied the motion to vacate for lack
of merit. Hence, this petition.
Meanwhile, on June 6,1982, petitioner Hermogenes Campos died
and left a will, which, incidentally has been questioned by the
respondent, his children and forced heirs as, on its face, patently
null and void, and a fabrication, appointing Polly Cayetano as the
executrix of his last will and testament. Cayetano, therefore, filed
a motion to substitute herself as petitioner in the instant case
which was granted by the court on September 13, 1982.
A motion to dismiss the petition on the ground that the rights of
the petitioner Hermogenes Campos merged upon his death with
the rights of the respondent and her sisters, only remaining
children and forced heirs was denied on September 12, 1983.
Petitioner Cayetano persists with the allegations that the
respondent judge acted without or in excess of his jurisdiction
when:
1) He ruled the petitioner lost his standing in court
deprived the Right to Notice (sic) upon the filing of
the Motion to Dismiss opposition with waiver of
rights or interests against the estate of deceased
Adoracion C. Campos, thus, paving the way for
the hearing ex-parte of the petition for the probate
of decedent will.
2) He ruled that petitioner can waive, renounce or
repudiate (not made in a public or authenticated
instrument), or by way of a petition presented to
the court but by way of a motion presented prior to
an order for the distribution of the estate-the law
especially providing that repudiation of an
inheritance must be presented, within 30 days
after it has issued an order for the distribution of
the estate in accordance with the rules of Court.
3) He ruled that the right of a forced heir to his
legitime can be divested by a decree admitting a
will to probate in which no provision is made for
the forced heir in complete disregard of Law of
Succession
4) He denied petitioner's petition for Relief on the
ground that no evidence was adduced to support
the Petition for Relief when no Notice nor hearing
was set to afford petitioner to prove the merit of
his petition — a denial of the due process and a
grave abuse of discretion amounting to lack of
jurisdiction.
5) He acquired no jurisdiction over the testate
case, the fact that the Testator at the time of
death was a usual resident of Dasmariñas, Cavite,
consequently Cavite Court of First Instance has
exclusive jurisdiction over the case (De Borja vs.
Tan, G.R. No. L-7792, July 1955).
The first two issues raised by the petitioner are anchored on the
allegation that the respondent judge acted with grave abuse of
discretion when he allowed the withdrawal of the petitioner's
opposition to the reprobate of the will.
We find no grave abuse of discretion on the part of the
respondent judge. No proof was adduced to support petitioner's
contention that the motion to withdraw was secured through
fraudulent means and that Atty. Franco Loyola was not his
counsel of record. The records show that after the firing of the
contested motion, the petitioner at a later date, filed a
manifestation wherein he confirmed that the Motion to Dismiss
Opposition was his voluntary act and deed. Moreover, at the time
the motion was filed, the petitioner's former counsel, Atty. Jose P.
Lagrosa had long withdrawn from the case and had been
substituted by Atty. Franco Loyola who in turn filed the motion.
The present petitioner cannot, therefore, maintain that the old
man's attorney of record was Atty. Lagrosa at the time of filing the
motion. Since the withdrawal was in order, the respondent judge
acted correctly in hearing the probate of the will ex-parte, there
being no other opposition to the same.
The third issue raised deals with the validity of the provisions of
the will. As a general rule, the probate court's authority is limited
only to the extrinsic validity of the will, the due execution thereof,
the testatrix's testamentary capacity and the compliance with the
requisites or solemnities prescribed by law. The intrinsic validity
of the will normally comes only after the court has declared that
the will has been duly authenticated. However, where practical
considerations demand that the intrinsic validity of the will be
passed upon, even before it is probated, the court should meet
the issue. (Maninang vs. Court of Appeals, 114 SCRA 478).
In the case at bar, the petitioner maintains that since the
respondent judge allowed the reprobate of Adoracion's will,
Hermogenes C. Campos was divested of his legitime which was
reserved by the law for him.
This contention is without merit.
Although on its face, the will appeared to have preterited the
petitioner and thus, the respondent judge should have denied its
reprobate outright, the private respondents have sufficiently
established that Adoracion was, at the time of her death, an
American citizen and a permanent resident of Philadelphia,
Pennsylvania, U.S.A. Therefore, under Article 16 par. (2) and
1039 of the Civil Code which respectively provide:
Art. 16 par. (2).
xxx xxx xxx
However, intestate and testamentary successions,
both with respect to the order of succession and
to the amount of successional rights and to the
intrinsic validity of testamentary provisions, shall
be regulated by the national law of the person
whose succession is under consideration,
whatever may be the nature of the property and
regardless of the country wherein said property
may be found.
Art. 1039.
Capacity to succeed is governed by the law of the
nation of the decedent.
the law which governs Adoracion Campo's will is the law of
Pennsylvania, U.S.A., which is the national law of the decedent.
Although the parties admit that the Pennsylvania law does not
provide for legitimes and that all the estate may be given away by
the testatrix to a complete stranger, the petitioner argues that
such law should not apply because it would be contrary to the
sound and established public policy and would run counter to the
specific provisions of Philippine Law.
It is a settled rule that as regards the intrinsic validity of the
provisions of the will, as provided for by Article 16(2) and 1039 of
the Civil Code, the national law of the decedent must apply. This
was squarely applied in the case of Bellis v. Bellis (20 SCRA 358)
wherein we ruled:
It is therefore evident that whatever public policy
or good customs may be involved in our system of
legitimes, Congress has not intended to extend
the same to the succession of foreign nationals.
For it has specifically chosen to leave, inter alia,
the amount of successional rights, to the
decedent's national law. Specific provisions must
prevail over general ones.
xxx xxx xxx
The parties admit that the decedent, Amos G.
Bellis, was a citizen of the State of Texas, U.S.A.,
and under the law of Texas, there are no forced
heirs or legitimes. Accordingly, since the intrinsic
validity of the provision of the will and the amount
of successional rights are to be determined under
Texas law, the Philippine Law on legitimes cannot
be applied to the testacy of Amos G. Bellis.
As regards the alleged absence of notice of hearing for the
petition for relief, the records wig bear the fact that what was
repeatedly scheduled for hearing on separate dates until June 19,
1980 was the petitioner's petition for relief and not his motion to
vacate the order of January 10, 1979. There is no reason why the
petitioner should have been led to believe otherwise. The court
even admonished the petitioner's failing to adduce evidence when
his petition for relief was repeatedly set for hearing. There was no
denial of due process. The fact that he requested "for the future
setting of the case for hearing . . ." did not mean that at the next
hearing, the motion to vacate would be heard and given
preference in lieu of the petition for relief. Furthermore, such
request should be embodied in a motion and not in a mere notice
of hearing.
Finally, we find the contention of the petition as to the issue of
jurisdiction utterly devoid of merit. Under Rule 73, Section 1, of
the Rules of Court, it is provided that:
SECTION 1. Where estate of deceased persons
settled. — If the decedent is an inhabitant of the
Philippines at the time of his death, whether a
citizen or an alien, his will shall be proved, or
letters of administration granted, and his estate
settled, in the Court of First Instance in the
province in which he resided at the time of his
death, and if he is an inhabitant of a foreign
country, the Court of First Instance of any
province in which he had estate. The court first
taking cognizance of the settlement of the estate
of a decedent, shall exercise jurisdiction to the
exclusion of all other courts. The jurisdiction
assumed by a court, so far as it depends on the
place of residence of the decedent, or of the
location of his estate, shall not be contested in a
suit or proceeding, except in an appeal from that
court, in the original case, or when the want of
jurisdiction appears on the record.
Therefore, the settlement of the estate of Adoracion Campos was
correctly filed with the Court of First Instance of Manila where she
had an estate since it was alleged and proven that Adoracion at
the time of her death was a citizen and permanent resident of
Pennsylvania, United States of America and not a "usual resident
of Cavite" as alleged by the petitioner. Moreover, petitioner is now
estopped from questioning the jurisdiction of the probate court in
the petition for relief. It is a settled rule that a party cannot invoke
the jurisdiction of a court to secure affirmative relief, against his
opponent and after failing to obtain such relief, repudiate or
question that same jurisdiction. (See Saulog Transit, Inc. vs. Hon.
Manuel Lazaro, et al., G. R. No. 63 284, April 4, 1984).
WHEREFORE, the petition for certiorari and prohibition is hereby
dismissed for lack of merit.
SO ORDERED.
G.R. No. L-22036 April 30, 1979
TESTATE ESTATE OF THE LATE REVEREND FATHER
PASCUAL RIGOR. THE PARISH PRIEST OF THE ROMAN
CATHOLIC CHURCH OF VICTORIA, TARLAC, petitioner-
appellant,
vs.
BELINA RIGOR, NESTORA RIGOR, FRANCISCA ESCOBAR
DE RIGOR and JOVITA ESCOBAR DE FAUSTO, respondents-
appellees.
D. Tañedo, Jr. for appellants.
J. Palanca, Sr. for appellee.
AQUINO, J.:
This case is about the efficaciousness or enforceability of a
devise of ricelands located at Guimba, Nueva Ecija, with a total
area of around forty- four hectares That devise was made in the
will of the late Father Pascual Rigor, a native of Victoria Tarlac, in
favor of his nearest male relative who would study for the
priesthood.
The parish priest of Victoria, who claimed to be a trustee of the
said lands, appealed to this Court from the decision of the Court
of Appeals affirming the order of the probate court declaring that
the said devise was inoperative (Rigor vs. Parish Priest of the
Roman Catholic Church of Victoria, Tarlac, CA-G.R. No. 24319-
R, August 1, 1963).
The record discloses that Father Rigor, the parish priest of
Pulilan, Bulacan, died on August 9, 1935, leaving a will executed
on October 29, 1933 which was probated by the Court of First
Instance of Tarlac in its order of December 5, 1935. Named as
devisees in the will were the testators nearest relatives, namely,
his three sisters: Florencia Rigor-Escobar, Belina Rigor-Manaloto
and Nestora Rigor-Quiambao. The testator gave a devise to his
cousin, Fortunato Gamalinda.
In addition, the will contained the following controversial bequest
(paragraphing supplied to facilitate comprehension of the
testamentary provisions):
Doy y dejo como legado CUATRO (4)
PARCELAS de terreno palayeros situados en el
municipiooo de Guimba de la provinciaaa de
NUEVA ECIJA, cuyo num. de CERTIFICADO DE
TRANSFERENCIA DE TITULO SON; — Titulo
Num. 6530, mide 16,249 m. cuadrados de
superficie Titulo Num. 6548, mide 242,998 m.
cuadrados de superficie y annual 6525, mide
62,665 m. cuadrados de superficie; y Titulo Num.
6521, mide 119,251 m. cuadrados de superficie;
a cualquier pariente mio varon mas cercano que
estudie la carrera eclesiatica hasta ordenarse de
Presbiterado o sea Sacerdote; las condiciones de
estate legado son;
(1.a) Prohibe en absoluto la venta de estos
terrenos arriba situados objectos de este legado;
(2.a) Que el legatario pariente mio mas cercano
tendra derecho de empezar a gozar y administrar
de este legado al principiar a curzar la Sagrada
Teologio, y ordenado de Sacerdote, hasta su
muerte; pero que pierde el legatario este derecho
de administrar y gozar de este legado al dejar de
continuar sus estudios para ordenarse de
Presbiterado (Sacerdote).
Que el legatario una vez Sacerdote ya estara
obligado a celebrar cada año VEINTE (20) Misas
rezadas en sufragio de mi alma y de mis padres
difuntos, y si el actual legatario, quedase
excomulgado, IPSO FACTO se le despoja este
legado, y la administracion de esto pasara a
Title
cargo del actual Parroco y sus sucesores deNo.la
Iglecia Catolica de Victoria, Tarlac.
para su administracion, y los derechos
correspondientes de las VEINTE (20) Misas
rezadas que debiera el Parroco celebrar cada
año, depositando todo lo restante de los
productos de estate legado, en un banco, a
nombre de estate legado.
To implement the foregoing bequest, the administratix in 1940
submitted a project containing the following item:
5. LEGACY OF THE CHURCH
That it be adjudicated in favor of the legacy
purported to be given to the nearest male relative
who shall take the priesthood, and in the interim to
be administered by the actual Catholic Priest of
the Roman Catholic Church of Victoria, Tarlac,
Philippines, or his successors, the real properties
hereinbelow indicated, to wit:
Lot Area in Tax
No. Has. Dec.

T-
Y en intervalo de tiempo que no haya legatario 3663 1.6249 18740
6530
acondicionado segun lo arriba queda expresado,
pasara la administracion de este legado a cargo
del actual Parroco Catolico y sus sucesores,T-de 3445- 24.2998 18730
Victoria, Tarlac. 6548 C

El Parroco administrador de estate legado, T- 3670 6.2665 18736

acumulara, anualmente todos los productos6525
que
puede tener estate legado, ganando o sacando
de los productos anuales el CINCO (5) por ciento
T- 3666 11.9251 18733

6521
Total amount and value — 44.1163 P13,090.00
Judge Roman A. Cruz in his order of August 15, 1940, approving
the project of partition, directed that after payment of the
obligations of the estate (including the sum of P3,132.26 due to
the church of the Victoria parish) the administratrix should deliver
to the devisees their respective shares.
It may be noted that the administratrix and Judge Cruz did not
bother to analyze the meaning and implications of Father Rigor's
bequest to his nearest male relative who would study for the
priesthood. Inasmuch as no nephew of the testator claimed the
devise and as the administratrix and the legal heirs believed that
the parish priest of Victoria had no right to administer the
ricelands, the same were not delivered to that ecclesiastic. The
testate proceeding remained pending.
About thirteen years after the approval of the project of partition,
or on February 19, 1954, the parish priest of Victoria filed in the
pending testate proceeding a petition praying for the appointment
of a new administrator (succeeding the deceased administration
Florencia Rigor), who should deliver to the church the said
ricelands, and further praying that the possessors thereof be
ordered to render an accounting of the fruits. The probate court
granted the petition. A new administrator was appointed. On
January 31, 1957 the parish priest filed another petition for the
delivery of the ricelands to the church as trustee.
The intestate heirs of Father Rigor countered with a petition dated
March 25, 1957 praying that the bequest be d inoperative and
that they be adjudged as the persons entitled to the said ricelands
since, as admitted by the parish priest of Victoria, "no nearest
male relative of" the testator "has ever studied for the priesthood"
(pp. 25 and 35, Record on Appeal). That petition was opposed by
the parish priest of Victoria.
Finding that petition to be meritorious, the lower court, through
Judge Bernabe de Aquino, declared the bequest inoperative and
adjudicated the ricelands to the testator's legal heirs in his order
of June 28, 1957. The parish priest filed two motions for
reconsideration.
Judge De Aquino granted the respond motion for reconsideration
in his order of December 10, 1957 on the ground that the testator
had a grandnephew named Edgardo G. Cunanan (the grandson
of his first cousin) who was a seminarian in the San Jose
Seminary of the Jesuit Fathers in Quezon City. The administrator
was directed to deliver the ricelands to the parish priest of Victoria
as trustee.
The legal heirs appealed to the Court of Appeals. It reversed that
order. It held that Father Rigor had created a testamentary trust
for his nearest male relative who would take the holy orders but
that such trust could exist only for twenty years because to
enforce it beyond that period would violate "the rule against
perpetuities. It ruled that since no legatee claimed the ricelands
within twenty years after the testator's death, the same should
pass to his legal heirs, citing articles 888 and 912(2) of the old
Civil Code and article 870 of the new Civil Code.
The parish priest in this appeal contends that the Court of
Appeals erred in not finding that the testator created a public
charitable trust and in not liberally construing the testamentary
provisions so as to render the trust operative and to prevent
intestacy.
As refutation, the legal heirs argue that the Court of Appeals d the
bequest inoperative because no one among the testator's nearest
male relatives had studied for the priesthood and not because the
trust was a private charitable trust. According to the legal heirs,
that factual finding is binding on this Court. They point out that
appellant priest's change of theory cannot be countenanced in
this appeal .
In this case, as in cases involving the law of contracts and
statutory construction, where the intention of the contracting
parties or of the lawmaking body is to be ascertained, the primary
issue is the determination of the testator's intention which is the
law of the case (dicat testor et erit lex. Santos vs. Manarang, 27
Phil. 209, 215; Rodriguez vs. Court of Appeals, L-28734, March
28, 1969, 27 SCRA 546).
The will of the testator is the first and principal law in the matter of
testaments. When his intention is clearly and precisely
expressed, any interpretation must be in accord with the plain and
literal meaning of his words, except when it may certainly appear
that his intention was different from that literally expressed (In
re Estate of Calderon, 26 Phil. 333).
The intent of the testator is the cardinal rule in the construction of
wills." It is "the life and soul of a will It is "the first greatest rule, the
sovereign guide, the polestar, in giving effect to a will". (See
Dissent of Justice Moreland in Santos vs. Manarang, 27 Phil.
209, 223, 237-8.)
One canon in the interpretation of the testamentary provisions is
that "the testator's intention is to be ascertained from the words of
the wilt taking into consideration the circumstances under which it
was made", but excluding the testator's oral declarations as to his
intention (Art. 789, Civil Code of the Philippines).
To ascertain Father Rigor's intention, it may be useful to make the
following re-statement of the provisions of his will.
1. that he bequeathed the ricelands to anyone of his nearest male
relatives who would pursue an ecclesiastical career until his
ordination as a priest.
2. That the devisee could not sell the ricelands.
3. That the devisee at the inception of his studies in sacred
theology could enjoy and administer the ricelands, and once
ordained as a priest, he could continue enjoying and
administering the same up to the time of his death but the
devisee would cease to enjoy and administer the ricelands if he
discontinued his studies for the priesthood.
4. That if the devisee became a priest, he would be obligated to
celebrate every year twenty masses with prayers for the repose
of the souls of Father Rigor and his parents.
5. That if the devisee is excommunicated, he would be divested
of the legacy and the administration of the riceland would pass to
the incumbent parish priest of Victoria and his successors.
6. That during the interval of time that there is no qualified
devisee as contemplated above, the administration of the
ricelands would be under the responsibility of the incumbent
parish priest of Victoria and his successors, and
7. That the parish priest-administrator of the ricelands would
accumulate annually the products thereof, obtaining or getting
from the annual produce five percent thereof for his
administration and the fees corresponding to the twenty masses
with prayers that the parish priest would celebrate for each year,
depositing the balance of the income of the devise in the bank in
the name of his bequest.
From the foregoing testamentary provisions, it may be deduced
that the testator intended to devise the ricelands to his nearest
male relative who would become a priest, who was forbidden to
sell the ricelands, who would lose the devise if he discontinued
his studies for the priesthood, or having been ordained a priest,
he was excommunicated, and who would be obligated to say
annually twenty masses with prayers for the repose of the souls
of the testator and his parents.
On the other hand, it is clear that the parish priest of Victoria
would administer the ricelands only in two situations: one, during
the interval of time that no nearest male relative of the testator
was studying for the priesthood and two, in case the testator's
nephew became a priest and he was excommunicated.
What is not clear is the duration of "el intervalo de tiempo que no
haya legatario acondicionado", or how long after the testator's
death would it be determined that he had a nephew who would
pursue an ecclesiastical vocation. It is that patent ambiguity that
has brought about the controversy between the parish priest of
Victoria and the testator's legal heirs.
Interwoven with that equivocal provision is the time when the
nearest male relative who would study for the priesthood should
be determined. Did the testator contemplate only his nearest
male relative at the time of his death? Or did he have in mind any
of his nearest male relatives at anytime after his death?
We hold that the said bequest refers to the testator's nearest
male relative living at the time of his death and not to any
indefinite time thereafter. "In order to be capacitated to inherit, the
heir, devisee or legatee must be living at the moment the
succession opens, except in case of representation, when it is
proper" (Art. 1025, Civil Code).
The said testamentary provisions should be sensibly or
reasonably construed. To construe them as referring to the
testator's nearest male relative at anytime after his death would
render the provisions difficult to apply and create uncertainty as to
the disposition of his estate. That could not have been his
intention.
In 1935, when the testator died, his nearest leagal heirs were his
three sisters or second-degree relatives, Mrs. Escobar, Mrs.
Manaloto and Mrs. Quiambao. Obviously, when the testator
specified his nearest male relative, he must have had in mind his
nephew or a son of his sister, who would be his third-degree
relative, or possibly a grandnephew. But since he could not
prognosticate the exact date of his death or state with certitude
what category of nearest male relative would be living at the time
of his death, he could not specify that his nearest male relative
would be his nephew or grandnephews (the son of his nephew or
niece) and so he had to use the term "nearest male relative".
It is contended by the legal heirs that the said devise was in
reality intended for Ramon Quiambao, the testator's nephew and
godchild, who was the son of his sister, Mrs. Quiambao. To prove
that contention, the legal heirs presented in the lower court the
affidavit of Beatriz Gamalinda, the maternal grandmother of
Edgardo Cunanan, who deposed that after Father Rigor's death
her own son, Valentin Gamalinda, Jr., did not claim the devise,
although he was studying for the priesthood at the San Carlos
Seminary, because she (Beatriz) knew that Father Rigor had
intended that devise for his nearest male relative beloning to the
Rigor family (pp. 105-114, Record on Appeal).
Mrs. Gamalinda further deposed that her own grandchild,
Edgardo G. Cunanan, was not the one contemplated in Father
Rigor's will and that Edgardo's father told her that he was not
consulted by the parish priest of Victoria before the latter filed his
second motion for reconsideration which was based on the
ground that the testator's grandnephew, Edgardo, was studying
for the priesthood at the San Jose Seminary.
Parenthetically, it should be stated at this juncture that Edgardo
ceased to be a seminarian in 1961. For that reason, the legal
heirs apprised the Court of Appeals that the probate court's order
adjudicating the ricelands to the parish priest of Victoria had no
more leg to stand on (p. 84, Appellant's brief).
Of course, Mrs. Gamalinda's affidavit, which is tantamount to
evidence aliunde as to the testator's intention and which is
hearsay, has no probative value. Our opinion that the said
bequest refers to the testator's nephew who was living at the time
of his death, when his succession was opened and the
successional rights to his estate became vested, rests on a
judicious and unbiased reading of the terms of the will.
Had the testator intended that the "cualquier pariente mio varon
mas cercano que estudie la camera eclesiatica" would include
indefinitely anyone of his nearest male relatives born after his
death, he could have so specified in his will He must have known
that such a broad provision would suspend for an unlimited period
of time the efficaciousness of his bequest.
What then did the testator mean by "el intervalo de tiempo que no
haya legatario acondicionado"? The reasonable view is that he
was referring to a situation whereby his nephew living at the time
of his death, who would like to become a priest, was still in grade
school or in high school or was not yet in the seminary. In that
case, the parish priest of Victoria would administer the ricelands
before the nephew entered the seminary. But the moment the
testator's nephew entered the seminary, then he would be entitled
to enjoy and administer the ricelands and receive the fruits
thereof. In that event, the trusteeship would be terminated.
Following that interpretation of the will the inquiry would be
whether at the time Father Rigor died in 1935 he had a nephew
who was studying for the priesthood or who had manifested his
desire to follow the ecclesiastical career. That query is
categorically answered in paragraph 4 of appellant priest's
petitions of February 19, 1954 and January 31, 1957. He
unequivocally alleged therein that "not male relative of the late
(Father) Pascual Rigor has ever studied for the priesthood" (pp.
25 and 35, Record on Appeal).
Inasmuch as the testator was not survived by any nephew who
became a priest, the unavoidable conclusion is that the bequest
in question was ineffectual or inoperative. Therefore, the
administration of the ricelands by the parish priest of Victoria, as
envisaged in the wilt was likewise inoperative.
The appellant in contending that a public charitable trust was
constituted by the testator in is favor assumes that he was a
trustee or a substitute devisee That contention is untenable. A
reading of the testamentary provisions regarding the disputed
bequest not support the view that the parish priest of Victoria was
a trustee or a substitute devisee in the event that the testator was
not survived by a nephew who became a priest.
It should be understood that the parish priest of Victoria could
become a trustee only when the testator's nephew living at the
time of his death, who desired to become a priest, had not yet
entered the seminary or, having been ordained a priest, he was
excommunicated. Those two contingencies did not arise, and
could not have arisen in this case because no nephew of the
testator manifested any intention to enter the seminary or ever
became a priest.
The Court of Appeals correctly ruled that this case is covered by
article 888 of the old Civil Code, now article 956, which provides
that if "the bequest for any reason should be inoperative, it shall
be merged into the estate, except in cases of substitution and
those in which the right of accretion exists" ("el legado ... por
qualquier causa, no tenga efecto se refundira en la masa de la
herencia, fuera de los casos de sustitucion y derecho de
acrecer").
This case is also covered by article 912(2) of the old Civil Code,
now article 960 (2), which provides that legal succession takes
place when the will "does not dispose of all that belongs to the
testator." There being no substitution nor accretion as to the said
ricelands the same should be distributed among the testator's
legal heirs. The effect is as if the testator had made no disposition
as to the said ricelands.
The Civil Code recognizes that a person may die partly testate
and partly intestate, or that there may be mixed succession. The
old rule as to the indivisibility of the testator's win is no longer
valid. Thus, if a conditional legacy does not take effect, there will
be intestate succession as to the property recovered by the said
legacy (Macrohon Ong Ham vs. Saavedra, 51 Phil. 267).
We find no merit in the appeal The Appellate Court's decision is
affirmed. Costs against the petitioner.
SO ORDERED
G.R. No. 145545 June 30, 2008
PAZ SAMANIEGO-CELADA, petitioner,
vs.
LUCIA D. ABENA, respondent.
DECISION
QUISUMBING, J.:
This is a petition for review under Rule 45 of the 1997 Rules of
Civil Procedure seeking to reverse the Decision1dated October
13, 2000 of the Court of Appeals in CA-G.R. CV No. 41756,
which affirmed the Decision2 dated March 2, 1993 of the Regional
Trial Court (RTC), Branch 66, Makati City. The RTC had declared
the last will and testament of Margarita S. Mayores probated and
designated respondent Lucia D. Abena as the executor of her
will. It also ordered the issuance of letters testamentary in favor of
respondent.
The facts are as follows:
Petitioner Paz Samaniego-Celada was the first cousin of
decedent Margarita S. Mayores (Margarita) while respondent was
the decedent’s lifelong companion since 1929.
On April 27, 1987, Margarita died single and without any
ascending nor descending heirs as her parents, grandparents
and siblings predeceased her. She was survived by her first
cousins Catalina Samaniego-Bombay, Manuelita Samaniego
Sajonia, Feliza Samaniego, and petitioner.
Before her death, Margarita executed a Last Will and
Testament3 on February 2, 1987 where she bequeathed one-half
of her undivided share of a real property located at Singalong
Manila, consisting of 209.8 square meters, and covered by
Transfer Certificate of Title (TCT) No. 1343 to respondent, Norma
A. Pahingalo, and Florentino M. Abena in equal shares or one-
third portion each. She likewise bequeathed one-half of her
undivided share of a real property located at San Antonio Village,
Makati, consisting of 225 square meters, and covered by TCT No.
68920 to respondent, Isabelo M. Abena, and Amanda M. Abena
in equal shares or one-third portion each. Margarita also left all
her personal properties to respondent whom she likewise
designated as sole executor of her will.
On August 11, 1987, petitioner filed a petition for letters of
administration of the estate of Margarita before the RTC of
Makati. The case was docketed as SP Proc. No. M-1531.
On October 27, 1987, respondent filed a petition for probate of
the will of Margarita before the RTC of Makati. The case was
docketed as SP Proc. No. M-1607 and consolidated with SP
Proc. No. M-1531.
On March 2, 1993, the RTC rendered a decision declaring the
last will and testament of Margarita probated and respondent as
the executor of the will. The dispositive portion of the decision
states:
In view of the foregoing, judgment is hereby rendered:
1) declaring the will as probated;
2) declaring Lucia Abena as the executor of the will who
will serve as such without a bond as stated in paragraph
VI of the probated will;
3) ordering the issuance of letters testamentary in favor of
Lucia Abena.
So ordered.4
Petitioner appealed the RTC decision to the Court of Appeals. But
the Court of Appeals, in a decision dated October 13, 2000,
affirmed in toto the RTC ruling. The dispositive portion of the
Court of Appeals’ decision states:
WHEREFORE, foregoing premises considered, the
appeal having no merit in fact and in law, is
hereby ORDERED DISMISSED and the appealed
Decision of the trial court AFFIRMED IN TOTO, with cost
to oppositors-appellants.
SO ORDERED.5
Hence, the instant petition citing the following issues:
I.
WHETHER OR NOT THE COURT OF APPEALS
COMMITTED A REVERSIBLE ERROR IN NOT
INVALIDATING THE WILL SINCE IT DID NOT
CONFORM TO THE FORMALITIES REQUIRED BY
LAW;
II.
WHETHER OR NOT THE COURT OF APPEALS
COMMITTED ERROR IN NOT INVALIDATING THE WILL
BECAUSE IT WAS PROCURED THROUGH UNDUE
INFLUENCE AND PRESSURE[;] AND
III.
 WHETHER OR NOT THE COURT OF APPEALS
GRAVELY ERRED IN NOT DECLARING PETITIONER,
HER SIBLINGS AND COUSIN AS THE LEGAL HEIRS
OF MARGARITA S. MAYORES AND IN NOT ISSUING
LETTERS OF ADMINISTRATION TO HER.6
Briefly stated, the issues are (1) whether the Court of Appeals
erred in not declaring the will invalid for failure to comply with the
formalities required by law, (2) whether said court erred in not
declaring the will invalid because it was procured through undue
influence and pressure, and (3) whether it erred in not declaring
petitioner and her siblings as the legal heirs of Margarita, and in
not issuing letters of administration to petitioner.
Petitioner, in her Memorandum,7 argues that Margarita’s will failed
to comply with the formalities required under Article 8058 of the
Civil Code because the will was not signed by the testator in the
presence of the instrumental witnesses and in the presence of
one another. She also argues that the signatures of the testator
on pages A, B, and C of the will are not the same or similar,
indicating that they were not signed on the same day. She further
argues that the will was procured through undue influence and
pressure because at the time of execution of the will, Margarita
was weak, sickly, jobless and entirely dependent upon
respondent and her nephews for support, and these alleged
handicaps allegedly affected her freedom and willpower to decide
on her own. Petitioner thus concludes that Margarita’s total
dependence on respondent and her nephews compelled her to
sign the will. Petitioner likewise argues that the Court of Appeals
should have declared her and her siblings as the legal heirs of
Margarita since they are her only living collateral relatives in
accordance with Articles 10099 and 101010 of the Civil Code.
Respondent, for her part, argues in her Memorandum11 that the
petition for review raises questions of fact, not of law and as a
rule, findings of fact of the Court of Appeals are final and
conclusive and cannot be reviewed on appeal to the Supreme
Court. She also points out that although the Court of Appeals at
the outset opined there was no compelling reason to review the
petition, the Court of Appeals proceeded to tackle the assigned
errors and rule that the will was validly executed, sustaining the
findings of the trial court that the formalities required by law were
duly complied with. The Court of Appeals also concurred with the
findings of the trial court that the testator, Margarita, was of sound
mind when she executed the will.
After careful consideration of the parties’ contentions, we rule in
favor of respondent.
We find that the issues raised by petitioner concern pure
questions of fact, which may not be the subject of a petition for
review on certiorari under Rule 45 of the Rules of Civil Procedure.
The issues that petitioner is raising now i.e., whether or not the
will was signed by the testator in the presence of the witnesses
and of one another, whether or not the signatures of the
witnesses on the pages of the will were signed on the same day,
and whether or not undue influence was exerted upon the testator
which compelled her to sign the will, are all questions of fact.
This Court does not resolve questions of fact in a petition for
review under Rule 45 of the 1997 Rules of Civil Procedure.
Section 112 of Rule 45 limits this Court’s review to questions of
law only.
Well-settled is the rule that the Supreme Court is not a trier of
facts. When supported by substantial evidence, the findings of
fact of the Court of Appeals are conclusive and binding on the
parties and are not reviewable by this Court, unless the case falls
under any of the following recognized exceptions:
(1) When the conclusion is a finding grounded entirely on
speculation, surmises and conjectures;
(2) When the inference made is manifestly mistaken,
absurd or impossible;
(3) Where there is a grave abuse of discretion;
(4) When the 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;
(7) When the findings are contrary to those of the trial
court;
(8) When the findings of fact are conclusions without
citation of specific evidence on which they are based;
(9) When the facts set forth in the petition as well as in the
petitioners’ main and reply briefs are not disputed by the
respondents; and
(10) When the findings of fact of the Court of Appeals are
premised on the supposed absence of evidence and
contradicted by the evidence on record.13
We find that this case does not involve any of the
abovementioned exceptions.
Nonetheless, a review of the findings of the RTC as upheld by the
Court of Appeals, reveal that petitioner’s arguments lack basis.
The RTC correctly held:
With [regard] to the contention of the oppositors [Paz
Samaniego-Celada, et al.] that the testator [Margarita
Mayores] was not mentally capable of making a will at the
time of the execution thereof, the same is without merit.
The oppositors failed to establish, by preponderance of
evidence, said allegation and contradict the presumption
that the testator was of sound mind (See Article 800 of the
Civil Code). In fact, witness for the oppositors, Dr. Ramon
Lamberte, who, in some occasions, attended to the
testator months before her death, testified that Margarita
Mayores could engage in a normal conversation and he
even stated that the illness of the testator does not
warrant hospitalization…. Not one of the oppositor’s
witnesses has mentioned any instance that they observed
act/s of the testator during her lifetime that could be
construed as a manifestation of mental incapacity. The
testator may be admitted to be physically weak but it does
not necessarily follow that she was not of sound mind.
[The] testimonies of contestant witnesses are pure
aforethought.
Anent the contestants’ submission that the will is fatally
defective for the reason that its attestation clause states
that the will is composed of three (3) pages while in truth
and in fact, the will consists of two (2) pages only because
the attestation is not a part of the notarial will, the same is
not accurate. While it is true that the attestation clause is
not a part of the will, the court, after examining the totality
of the will, is of the considered opinion that error in the
number of pages of the will as stated in the attestation
clause is not material to invalidate the subject will. It must
be noted that the subject instrument is consecutively
lettered with pages A, B, and C which is a sufficient
safeguard from the possibility of an omission of some of
the pages. The error must have been brought about by
the honest belief that the will is the whole instrument
consisting of three (3) pages inclusive of the attestation
clause and the acknowledgement. The position of the
court is in consonance with the "doctrine of liberal
interpretation" enunciated in Article 809 of the Civil
Code which reads:
"In the absence of bad faith, forgery or fraud,
or undue [and] improper pressure and
influence, defects and imperfections in the
form of attestation or in the language used
therein shall not render the will invalid if it is
proved that the will was in fact executed and
attested in substantial compliance with all the
requirements of Article 805."
The court also rejects the contention of the oppositors that
the signatures of the testator were affixed on different
occasions based on their observation that the signature
on the first page is allegedly different in size, texture and
appearance as compared with the signatures in the
succeeding pages. After examination of the signatures,
the court does not share the same observation as the
oppositors. The picture (Exhibit "H-3") shows that the
testator was affixing her signature in the presence of the
instrumental witnesses and the notary. There is no
evidence to show that the first signature was procured
earlier than February 2, 1987.
Finally, the court finds that no pressure nor undue
influence was exerted on the testator to execute the
subject will. In fact, the picture reveals that the testator
was in a good mood and smiling with the other witnesses
while executing the subject will (See Exhibit "H").
In fine, the court finds that the testator was mentally
capable of making the will at the time of its execution, that
the notarial will presented to the court is the same notarial
will that was executed and that all the formal requirements
(See Article 805 of the Civil Code) in the execution of a
will have been substantially complied with in the subject
notarial will.14 (Emphasis supplied.)
Thus, we find no reason to disturb the abovementioned findings
of the RTC. Since, petitioner and her siblings are not compulsory
heirs of the decedent under Article 88715 of the Civil Code and as
the decedent validly disposed of her properties in a will duly
executed and probated, petitioner has no legal right to claim any
part of the decedent’s estate.
WHEREFORE, the petition is DENIED. The assailed Decision
dated October 13, 2000 of the Court of Appeals in CA-G.R. CV
No. 41756 is AFFIRMED.
Costs against petitioner.
SO ORDERED.
LEONARDO A. QUISUMBING
Associate Justice
 WE CONCUR: REYNATO S. PUNO
Chief Justice

CONCHITA CARPIO MORALES

Associate Justice

DANTE O. TINGA PRESBITERO J. VELASCO, Footnotes

JR.
Associate Justice Associate Justice
1
Rollo, pp. 41-48. Penned by Associate Justice Jose L.
ARTURO D. BRION Sabio, Jr., with Associate Justices Salvador J. Valdez, Jr.
Associate Justice and Eliezer R. delos Santos concurring.

2
Id. at 34-40. Penned by Judge Eriberto U. Rosario, Jr.

3
ATTESTATION Id. at 31-33.

4
I attest that the conclusions in the above Decision had been Id. at 40.
reached in consultation before the case was assigned to the
5
writer of the opinion of the Court’s Division. Id. at 47.

6
LEONARDO A. QUISUMBING Id. at 85.
Associate Justice
Chairperson 7
Id. at 82-102.

CERTIFICATION
Pursuant to Section 13, Article VIII of the Constitution, and the
Division Chairperson’s Attestation, it is hereby certified that the
conclusions in the above Decision were reached in consultation
before the case was assigned to the writer of the opinion of the
Court’s Division.
8
Art. 805. Every will, other than a holographic will, must
be subscribed at the end thereof by the testator himself or
by the testator’s name written by some other person in his
presence, and by his express direction, and attested and
subscribed by three or more credible witnesses in the
presence of the testator and of one another.
The testator or the person requested by him to write his
name and the instrumental witnesses of the will, shall also
sign, as aforesaid, each and every page thereof, except
the last, on the left margin, and all the pages shall be
numbered correlatively in letters placed on the upper part
of each page.
The attestation shall state the number of pages used
upon which the will is written, and the fact that the testator
signed the will and every page thereof, or caused some
other person to write his name, under his express
direction, in the presence of the instrumental witnesses,
and that the latter witnessed and signed the will and all
the pages thereof in the presence of the testator and of
one another.
If the attestation clause is in a language not known to the
witnesses, it shall be interpreted to them.
9
Art. 1009. Should there be neither brothers nor sisters
nor children of brothers or sisters, the other collateral
relatives shall succeed to the estate.
The latter shall succeed without distinction of lines or
preference among them by reason of relationship by the
whole blood.
10
Art. 1010. The right to inherit ab intestato shall not
extend beyond the fifth degree of relationship in the
collateral line.
11
Rollo, pp. 108-111.
12
SECTION 1. Filing of petition with Supreme Court.— A
party desiring to appeal by certiorari from a judgment or
final order or resolution of the Court of Appeals, the
Sandiganbayan, the Regional Trial Court or other courts
whenever authorized by law, may file with the Supreme
Court a verified petition for review on certiorari. The
petition shall raise only questions of law which must be
distinctly set forth.
13
Ontimare, Jr. v. Elep, G.R. No. 159224, January 20,
2006, 479 SCRA 257, 265.
14
Rollo, pp. 38-40.
15
Art. 887. The following are compulsory heirs:
(1) Legitimate children and descendants, with
respect to their legitimate parents and
ascendants;
(2) In default of the foregoing, legitimate parents
and ascendants, with respect to their legitimate
children and descendants;
(3) The widow or widower;
(4) Acknowledged natural children, and natural
children by legal fiction;
(5) Other illegitimate children referred to in article
287.
Compulsory heirs mentioned in Nos. 3, 4 and 5
are not excluded by those in Nos. 1 and 2; neither
do they exclude one another.
In all cases of illegitimate children, their filiation
must be duly proved.
 The father or mother of illegitimate children of the
three classes mentioned, shall inherit from them in
the manner and to the extent established by this
Code.
G.R. No. L-7188 August 9, 1954
In re: Will and Testament of the deceased REVEREND
SANCHO ABADIA.
SEVERINA A. VDA. DE ENRIQUEZ, ET AL., petitioners-
appellees,
vs.
MIGUEL ABADIA, ET AL., oppositors-appellants.
Manuel A. Zosa, Luis B. Ladonga, Mariano A. Zosa and B. G.
Advincula for appellants.
C. de la Victoria for appellees.
MONTEMAYOR, J.:
On September 6, 1923, Father Sancho Abadia, parish priest of
Talisay, Cebu, executed a document purporting to be his Last Will
and Testament now marked Exhibit "A". Resident of the City of
Cebu, he died on January 14, 1943, in the municipality of
Aloguinsan, Cebu, where he was an evacuee. He left properties
estimated at P8,000 in value. On October 2, 1946, one Andres
Enriquez, one of the legatees in Exhibit "A", filed a petition for its
probate in the Court of First Instance of Cebu. Some cousins and
nephews who would inherit the estate of the deceased if he left
no will, filed opposition.
During the hearing one of the attesting witnesses, the other two
being dead, testified without contradiction that in his presence
and in the presence of his co-witnesses, Father Sancho wrote out
in longhand Exhibit "A" in Spanish which the testator spoke and
understood; that he (testator) signed on he left hand margin of the
front page of each of the three folios or sheets of which the
document is composed, and numbered the same with Arabic
numerals, and finally signed his name at the end of his writing at
the last page, all this, in the presence of the three attesting
witnesses after telling that it was his last will and that the said
three witnesses signed their names on the last page after the
attestation clause in his presence and in the presence of each
other. The oppositors did not submit any evidence.
The learned trial court found and declared Exhibit "A" to be a
holographic will; that it was in the handwriting of the testator and
that although at the time it was executed and at the time of the
testator's death, holographic wills were not permitted by law still,
because at the time of the hearing and when the case was to be
decided the new Civil Code was already in force, which Code
permitted the execution of holographic wills, under a liberal view,
and to carry out the intention of the testator which according to
the trial court is the controlling factor and may override any defect
in form, said trial court by order dated January 24, 1952, admitted
to probate Exhibit "A", as the Last Will and Testament of Father
Sancho Abadia. The oppositors are appealing from that decision;
and because only questions of law are involved in the appeal, the
case was certified to us by the Court of Appeals.
The new Civil Code (Republic Act No. 386) under article 810
thereof provides that a person may execute a holographic will
which must be entirely written, dated and signed by the testator
himself and need not be witnessed. It is a fact, however, that at
the time that Exhibit "A" was executed in 1923 and at the time
that Father Abadia died in 1943, holographic wills were not
permitted, and the law at the time imposed certain requirements
for the execution of wills, such as numbering correlatively each
page (not folio or sheet) in letters and signing on the left hand
margin by the testator and by the three attesting witnesses,
requirements which were not complied with in Exhibit "A" because
the back pages of the first two folios of the will were not signed by
any one, not even by the testator and were not numbered, and as
to the three front pages, they were signed only by the testator.
Interpreting and applying this requirement this Court in the case
of In re Estate of Saguinsin, 41 Phil., 875, 879, referring to the
failure of the testator and his witnesses to sign on the left hand
margin of every page, said:
. . . . This defect is radical and totally vitiates the
testament. It is not enough that the signatures
guaranteeing authenticity should appear upon two folios
or leaves; three pages having been written on, the
authenticity of all three of them should be guaranteed by
the signature of the alleged testatrix and her witnesses.
And in the case of Aspe vs. Prieto, 46 Phil., 700, referring to the
same requirement, this Court declared:
From an examination of the document in question, it
appears that the left margins of the six pages of the
document are signed only by Ventura Prieto. The
noncompliance with section 2 of Act No. 2645 by the
attesting witnesses who omitted to sign with the testator
at the left margin of each of the five pages of the
document alleged to be the will of Ventura Prieto, is a
fatal defect that constitutes an obstacle to its probate.
What is the law to apply to the probate of Exh. "A"? May we apply
the provisions of the new Civil Code which not allows holographic
wills, like Exhibit "A" which provisions were invoked by the
appellee-petitioner and applied by the lower court? But article 795
of this same new Civil Code expressly provides: "The validity of a
will as to its form depends upon the observance of the law in
force at the time it is made." The above provision is but an
expression or statement of the weight of authority to the affect
that the validity of a will is to be judged not by the law enforce at
the time of the testator's death or at the time the supposed will is
presented in court for probate or when the petition is decided by
the court but at the time the instrument was executed. One
reason in support of the rule is that although the will operates
upon and after the death of the testator, the wishes of the testator
about the disposition of his estate among his heirs and among the
legatees is given solemn expression at the time the will is
executed, and in reality, the legacy or bequest then becomes a
completed act. This ruling has been laid down by this court in the
case of In re Will of Riosa, 39 Phil., 23. It is a wholesome doctrine
and should be followed.
Of course, there is the view that the intention of the testator
should be the ruling and controlling factor and that all adequate
remedies and interpretations should be resorted to in order to
carry out said intention, and that when statutes passed after the
execution of the will and after the death of the testator lessen the
formalities required by law for the execution of wills, said
subsequent statutes should be applied so as to validate wills
defectively executed according to the law in force at the time of
execution. However, we should not forget that from the day of the
death of the testator, if he leaves a will, the title of the legatees
and devisees under it becomes a vested right, protected under
the due process clause of the constitution against a subsequent
change in the statute adding new legal requirements of execution
of wills which would invalidate such a will. By parity of reasoning,
when one executes a will which is invalid for failure to observe
and follow the legal requirements at the time of its execution then
upon his death he should be regarded and declared as having
died intestate, and his heirs will then inherit by intestate
succession, and no subsequent law with more liberal
requirements or which dispenses with such requirements as to
execution should be allowed to validate a defective will and
thereby divest the heirs of their vested rights in the estate by
intestate succession. The general rule is that the Legislature can
not validate void wills (57 Am. Jur., Wills, Sec. 231, pp. 192-193).
In view of the foregoing, the order appealed from is reversed
G.R. No. L-32636 March 17, 1930
In the matter Estate of Edward Randolph Hix, deceased.
A.W. FLUEMER, petitioner-appellant,
vs.
ANNIE COUSHING HIX, oppositor-appellee.
C.A. Sobral for appellant.
Harvey & O' Brien and Gibbs & McDonough for appellee.
MALCOLM, J.:
The special administrator of the estate of Edward Randolph Hix
appeals from a decision of Judge of First Instance Tuason
denying the probate of the document alleged to by the last will
and testament of the deceased. Appellee is not authorized to
carry on this appeal. We think, however, that the appellant, who
appears to have been the moving party in these proceedings,
was a "person interested in the allowance or disallowance of a
will by a Court of First Instance," and so should be permitted to
appeal to the Supreme Court from the disallowance of the will
(Code of Civil Procedure, sec. 781, as amended; Villanueva vs.
De Leon [1925], 42 Phil., 780).
It is theory of the petitioner that the alleged will was executed in
Elkins, West Virginia, on November 3, 1925, by Hix who had his
residence in that jurisdiction, and that the laws of West Verginia
Code, Annotated, by Hogg, Charles E., vol. 2, 1914, p. 1690, and
as certified to by the Director of the National Library. But this was
far from a compliance with the law. The laws of a foreign
jurisdiction do not prove themselves in our courts. the courts of
the Philippine Islands are not authorized to take American Union.
Such laws must be proved as facts. (In re Estate of Johnson
[1918], 39 Phil., 156.) Here the requirements of the law were not
met. There was no was printed or published under the authority of
the State of West Virginia, as provided in section 300 of the Code
of Civil Procedure. Nor was the extract from the law attested by
the certificate of the officer having charge of the original, under
the sale of the State of West Virginia, as provided in section 301
of the Code of Civil Procedure. No evidence was introduced to
show that the extract from the laws of West Virginia was in force
at the time the alleged will was executed.
In addition, the due execution of the will was not established. The
only evidence on this point is to be found in the testimony of the
petitioner. Aside from this, there was nothing to indicate that the
will was acknowledged by the testator in the presence of two
competent witnesses, of that these witnesses subscribed the will
in the presence of the testator and of each other as the law of
West Virginia seems to require. On the supposition that the
witnesses to the will reside without the Philippine Islands, it would
then the duty of the petitioner to prove execution by some other
means (Code of Civil Procedure, sec. 633.)
It was also necessary for the petitioner to prove that the testator
had his domicile in West Virginia and not establish this fact
consisted of the recitals in the CATHY will and the testimony of
the petitioner. Also in beginning administration proceedings
orginally in the Philippine Islands, the petitioner violated his own
theory by attempting to have the principal administration in the
Philippine Islands.
While the appeal pending submission in this court, the attorney
for the appellant presented an unverified petition asking the court
to accept as part of the evidence the documents attached to the
petition. One of these documents discloses that a paper writing
purporting to be the was presented for probate on June 8, 1929,
to the clerk of Randolph Country, State of West Virginia, in
vacation, and was duly proven by the oaths of Dana Wamsley
and Joseph L. MAdden, the subscribing witnesses thereto , and
ordered to be recorded and filed. It was shown by another
document that, in vacation, on June 8, 1929, the clerk of court of
Randolph Country, West Virginia, appointed Claude W. Maxwell
as administrator, cum testamento annexo, of the estate of
Edward Randolph Hix, deceased. In this connection, it is to be
noted that the application for the probate of the will in the
Philippines was filed on February 20, 1929, while the proceedings
in West Virginia appear to have been initiated on June 8, 1929.
These facts are strongly indicative of an intention to make the
Philippines the principal administration and West Virginia the
ancillary administration. However this may be, no attempt has
been made to comply with Civil Procedure, for no hearing on the
question of the allowance of a will said to have been proved and
allowed in West Virginia has been requested. There is no
showing that the deceased left any property at any place other
than the Philippine Islands and no contention that he left any in
West Virginia.
Reference has been made by the parties to a divorce purported
to have been awarded Edward Randolph Hix from Annie Cousins
Hix on October 8, 1925, in the State of West specific
pronouncements on the validity or validity of this alleged divorce.
For all of the foregoing, the judgment appealed from will be
affirmed, with the costs of this instance against the appellant.
G.R. No. L-20234 December 23, 1964
PAULA DE LA CERNA, ET AL., petitioners,
vs.
MANUELA REBACA POTOT, ET AL., and THE HONORABLE
COURT OF APPEALS, respondents.
Philip M. Alo and Crispin M. Menchavez for petitioners.
Nicolas Jumapao for respondents.
REYES, J.B.L., J.:
Appeal by Paula de la Cerna and others from a decision of the
Court of Appeals, Sixth Division (C.A.-G.R. No. 23763-R)
reversing that of the Court of First Instance of Cebu (Civ. Case
No. R-3819) and ordering the dismissal of an action for partition.
The factual background appears in the following portion of the
decision of the Court of Appeals (Petition, Annex A, pp. 2-4):
It appears that on May 9, 1939, the spouses, Bernabe de
la Serna and Gervasia Rebaca, executed a joint last will
and testament in the local dialect whereby they willed that
"our two parcels of land acquired during our marriage
together with all improvements thereon shall be given to
Manuela Rebaca, our niece, whom we have nurtured
since childhood, because God did not give us any child in
our union, Manuela Rebaca being married to Nicolas
Potot", and that "while each of the testators is yet living,
he or she will continue to enjoy the fruits of the two lands
aforementioned", the said two parcels of land being
covered by Tax No. 4676 and Tax No. 6677, both situated
in sitio Bucao, barrio Lugo, municipality of Borbon,
province of Cebu. Bernabe dela Serna died on August 30,
1939, and the aforesaid will was submitted to probate by
said Gervasia and Manuela before the Court of First
Instance of Cebu which, after due publication as required
by law and there being no opposition, heard the evidence,
and, by Order of October 31, 1939; in Special
Proceedings No. 499, "declara legalizado el documento
Exhibit A como el testamento y ultima voluntad del finado
Bernabe de la Serna con derecho por parte du su viuda
superstite Gervasia Rebaca y otra testadora al propio
tiempo segun el Exhibit A de gozar de los frutos de los
terranos descritos en dicho documents; y habido
consideracion de la cuantia de dichos bienes, se decreta
la distribucion sumaria de los mismos en favor de la
logataria universal Manuela Rebaca de Potot previa
prestacion por parte de la misma de una fianza en la sum
de P500.00 para responder de cualesquiera
reclamaciones que se presentare contra los bienes del
finado Bernabe de la Serna de los años desde esta
fecha" (Act Esp. 499, Testamentaria Finado Bernabe de
la Serna) Upon the death of Gervasia Rebaca on October
14, 1952, another petition for the probate of the same will
insofar as Gervasia was concerned was filed on
November 6, 1952, being Special Proceedings No. 1016-
R of the same Court of First Instance of Cebu, but for
failure of the petitioner, Manuela R. Potot and her
attorney, Manuel Potot to appear, for the hearing of said
petition, the case was dismissed on March 30, 1954
Spec. Proc. No. 1016-R, In the matter of the Probate of
the Will of Gervasia Rebaca).
The Court of First Instance ordered the petition heard and
declared the testament null and void, for being executed contrary
to the prohibition of joint wills in the Civil Code (Art. 669, Civil
Code of 1889 and Art. 818, Civil Code of the Philippines); but on
appeal by the testamentary heir, the Court of Appeals reversed,
on the ground that the decree of probate in 1939 was issued by a
court of probate jurisdiction and conclusive on the due execution
of the testament. Further, the Court of Appeals declared that:
... . It is true the law (Art. 669, old Civil Code; Art. 818,
new Civil Code). prohibits the making of a will jointly by
two or more persons either for their reciprocal benefit or
for the benefit of a third person. However, this form of will
has long been sanctioned by use, and the same has
continued to be used; and when, as in the present case,
one such joint last will and testament has been admitted
to probate by final order of a Court of competent
jurisdiction, there seems to be no alternative except to
give effect to the provisions thereof that are not contrary
to law, as was done in the case of Macrohon vs.
Saavedra, 51 Phil. 267, wherein our Supreme Court gave
effect to the provisions of the joint will therein mentioned,
saying, "assuming that the joint will in question is valid."
Whence this appeal by the heirs intestate of the deceased
husband, Bernabe de la Cerna.
The appealed decision correctly held that the final decree of
probate, entered in 1939 by the Court of First Instance of Cebu
(when the testator, Bernabe de la Cerna, died), has conclusive
effect as to his last will and testament despite the fact that even
then the Civil Code already decreed the invalidity of joint wills,
whether in favor of the joint testators, reciprocally, or in favor of a
third party (Art. 669, old Civil Code). The error thus committed by
the probate court was an error of law, that should have been
corrected by appeal, but which did not affect the jurisdiction of the
probate court, nor the conclusive effect of its final decision,
however erroneous. A final judgment rendered on a petition for
the probate of a will is binding upon the whole world (Manalo vs.
Paredes, 47 Phil. 938; In re Estates of Johnson, 39 Phil. 156);
and public policy and sound practice demand that at the risk of
occasional errors judgment of courts should become final at some
definite date fixed by law. Interest rei publicae ut finis set
litium (Dy Cay vs. Crossfield, 38 Phil, 521, and other cases cited
in 2 Moran, Comments on the Rules of Court (1963 Ed., p. 322).
Petitioners, as heirs and successors of the late Bernabe de la
Cerna, are concluded by the 1939 decree admitting his will to
probate. The contention that being void the will cannot be
validated, overlooks that the ultimate decision on Whether an act
is valid or void rests with the courts, and here they have spoken
with finality when the will was probated in 1939. On this court, the
dismissal of their action for partition was correct.
But the Court of Appeals should have taken into account also, to
avoid future misunderstanding, that the probate decree in 1989
could only affect the share of the deceased husband, Bernabe de
la Cerna. It could not include the disposition of the share of the
wife, Gervasia Rebaca, who was then still alive, and over whose
interest in the conjugal properties the probate court acquired no
jurisdiction, precisely because her estate could not then be in
issue. Be it remembered that prior to the new Civil Code, a will
could not be probated during the testator's lifetime.
It follows that the validity of the joint will, in so far as the estate of
the wife was concerned, must be, on her death, reexamined and
adjudicated de novo, since a joint will is considered a separate
will of each testator. Thus regarded, the holding of the court of
First Instance of Cebu that the joint will is one prohibited by law
was correct as to the participation of the deceased Gervasia
Rebaca in the properties in question, for the reasons extensively
discussed in our decision in Bilbao vs. Bilbao, 87 Phil. 144, that
explained the previous holding in Macrohon vs. Saavedra, 51
Phil. 267.
Therefore, the undivided interest of Gervasia Rebaca should pass
upon her death to her heirs intestate, and not exclusively to the
testamentary heir, unless some other valid will in her favor is
shown to exist, or unless she be the only heir intestate of said
Gervasia.
It is unnecessary to emphasize that the fact that joint wills should
be in common usage could not make them valid when our Civil
Codes consistently invalidated them, because laws are only
repealed by other subsequent laws, and no usage to the contrary
may prevail against their observance (Art. 5, Civ. Code of 1889;
Art. 7, Civil Code of the Philippines of 1950).
WITH THE FOREGOING MODIFICATION, the judgment of the
Court of Appeals in CA-G.R. No. 23763-R is affirmed. No Costs.
G.R. No. L-23678 June 6, 1967
TESTATE ESTATE OF AMOS G. BELLIS, deceased.
PEOPLE'S BANK and TRUST COMPANY, executor.
MARIA CRISTINA BELLIS and MIRIAM PALMA
BELLIS, oppositors-appellants,
vs.
EDWARD A. BELLIS, ET AL., heirs-appellees.
Vicente R. Macasaet and Jose D. Villena for oppositors
appellants.
Paredes, Poblador, Cruz and Nazareno for heirs-appellees E. A.
Bellis, et al.
Quijano and Arroyo for heirs-appellees W. S. Bellis, et al.
J. R. Balonkita for appellee People's Bank & Trust Company.
Ozaeta, Gibbs and Ozaeta for appellee A. B. Allsman.
BENGZON, J.P., J.:
This is a direct appeal to Us, upon a question purely of law, from
an order of the Court of First Instance of Manila dated April 30,
1964, approving the project of partition filed by the executor in
Civil Case No. 37089 therein. 1äwphï1.ñët
The facts of the case are as follows:
Amos G. Bellis, born in Texas, was "a citizen of the State of
Texas and of the United States." By his first wife, Mary E. Mallen,
whom he divorced, he had five legitimate children: Edward A.
Bellis, George Bellis (who pre-deceased him in infancy), Henry A.
Bellis, Alexander Bellis and Anna Bellis Allsman; by his second
wife, Violet Kennedy, who survived him, he had three legitimate
children: Edwin G. Bellis, Walter S. Bellis and Dorothy Bellis; and
finally, he had three illegitimate children: Amos Bellis, Jr., Maria
Cristina Bellis and Miriam Palma Bellis.
On August 5, 1952, Amos G. Bellis executed a will in the
Philippines, in which he directed that after all taxes, obligations,
and expenses of administration are paid for, his distributable
estate should be divided, in trust, in the following order and
manner: (a) $240,000.00 to his first wife, Mary E. Mallen; (b)
P120,000.00 to his three illegitimate children, Amos Bellis, Jr.,
Maria Cristina Bellis, Miriam Palma Bellis, or P40,000.00 each
and (c) after the foregoing two items have been satisfied, the
remainder shall go to his seven surviving children by his first and
second wives, namely: Edward A. Bellis, Henry A. Bellis,
Alexander Bellis and Anna Bellis Allsman, Edwin G. Bellis, Walter
S. Bellis, and Dorothy E. Bellis, in equal shares. 1äwphï1.ñët
Subsequently, or on July 8, 1958, Amos G. Bellis died a resident
of San Antonio, Texas, U.S.A. His will was admitted to probate in
the Court of First Instance of Manila on September 15, 1958.
The People's Bank and Trust Company, as executor of the will,
paid all the bequests therein including the amount of $240,000.00
in the form of shares of stock to Mary E. Mallen and to the three
(3) illegitimate children, Amos Bellis, Jr., Maria Cristina Bellis and
Miriam Palma Bellis, various amounts totalling P40,000.00 each
in satisfaction of their respective legacies, or a total of
P120,000.00, which it released from time to time according as the
lower court approved and allowed the various motions or petitions
filed by the latter three requesting partial advances on account of
their respective legacies.
On January 8, 1964, preparatory to closing its administration, the
executor submitted and filed its "Executor's Final Account, Report
of Administration and Project of Partition" wherein it
reported, inter alia, the satisfaction of the legacy of Mary E.
Mallen by the delivery to her of shares of stock amounting to
$240,000.00, and the legacies of Amos Bellis, Jr., Maria Cristina
Bellis and Miriam Palma Bellis in the amount of P40,000.00 each
or a total of P120,000.00. In the project of partition, the executor
— pursuant to the "Twelfth" clause of the testator's Last Will and
Testament — divided the residuary estate into seven equal
portions for the benefit of the testator's seven legitimate children
by his first and second marriages.
On January 17, 1964, Maria Cristina Bellis and Miriam Palma
Bellis filed their respective oppositions to the project of partition
on the ground that they were deprived of their legitimes as
illegitimate children and, therefore, compulsory heirs of the
deceased.
Amos Bellis, Jr. interposed no opposition despite notice to him,
proof of service of which is evidenced by the registry receipt
submitted on April 27, 1964 by the executor.1
After the parties filed their respective memoranda and other
pertinent pleadings, the lower court, on April 30, 1964, issued an
order overruling the oppositions and approving the executor's
final account, report and administration and project of partition.
Relying upon Art. 16 of the Civil Code, it applied the national law
of the decedent, which in this case is Texas law, which did not
provide for legitimes.
Their respective motions for reconsideration having been denied
by the lower court on June 11, 1964, oppositors-appellants
appealed to this Court to raise the issue of which law must apply
— Texas law or Philippine law.
In this regard, the parties do not submit the case on, nor even
discuss, the doctrine of renvoi, applied by this Court in Aznar v.
Christensen Garcia, L-16749, January 31, 1963. Said doctrine is
usually pertinent where the decedent is a national of one country,
and a domicile of another. In the present case, it is not disputed
that the decedent was both a national of Texas and a domicile
thereof at the time of his death.2 So that even assuming Texas
has a conflict of law rule providing that the domiciliary system
(law of the domicile) should govern, the same would not result in
a reference back (renvoi) to Philippine law, but would still refer to
Texas law. Nonetheless, if Texas has a conflicts rule adopting the
situs theory (lex rei sitae) calling for the application of the law of
the place where the properties are situated, renvoi would arise,
since the properties here involved are found in the Philippines. In
the absence, however, of proof as to the conflict of law rule of
Texas, it should not be presumed different from ours.3 Appellants'
position is therefore not rested on the doctrine of renvoi. As
stated, they never invoked nor even mentioned it in their
arguments. Rather, they argue that their case falls under the
circumstances mentioned in the third paragraph of Article 17 in
relation to Article 16 of the Civil Code.
Article 16, par. 2, and Art. 1039 of the Civil Code, render
applicable the national law of the decedent, in intestate or
testamentary successions, with regard to four items: (a) the order
of succession; (b) the amount of successional rights; (e) the
intrinsic validity of the provisions of the will; and (d) the capacity
to succeed. They provide that —
ART. 16. Real property as well as personal property is
subject to the law of the country where it is situated.
However, intestate and testamentary successions, both
with respect to the order of succession and to the amount
of successional rights and to the intrinsic validity of
testamentary provisions, shall be regulated by the
national law of the person whose succession is under
consideration, whatever may he the nature of the property
and regardless of the country wherein said property may
be found.
ART. 1039. Capacity to succeed is governed by the law of
the nation of the decedent.
Appellants would however counter that Art. 17, paragraph three,
of the Civil Code, stating that —
Prohibitive laws concerning persons, their acts or
property, and those which have for their object public
 order, public policy and good customs shall not be
rendered ineffective by laws or judgments promulgated, or
by determinations or conventions agreed upon in a
foreign country.
prevails as the exception to Art. 16, par. 2 of the Civil Code afore-
quoted. This is not correct. Precisely, Congress deleted the
phrase, "notwithstanding the provisions of this and the next
preceding article" when they incorporated Art. 11 of the old Civil
Code as Art. 17 of the new Civil Code, while reproducing without
substantial change the second paragraph of Art. 10 of the old
Civil Code as Art. 16 in the new. It must have been their purpose
to make the second paragraph of Art. 16 a specific provision in
itself which must be applied in testate and intestate succession.
As further indication of this legislative intent, Congress added a
new provision, under Art. 1039, which decrees that capacity to
succeed is to be governed by the national law of the decedent.
It is therefore evident that whatever public policy or good customs
may be involved in our System of legitimes, Congress has not
intended to extend the same to the succession of foreign
nationals. For it has specifically chosen to leave, inter alia,
the amount of successional rights, to the decedent's national law.
Specific provisions must prevail over general ones.
Appellants would also point out that the decedent executed two
wills — one to govern his Texas estate and the other his
Philippine estate — arguing from this that he intended Philippine
law to govern his Philippine estate. Assuming that such was the
decedent's intention in executing a separate Philippine will, it
would not alter the law, for as this Court ruled in Miciano v. Brimo,
50 Phil. 867, 870, a provision in a foreigner's will to the effect that
his properties shall be distributed in accordance with Philippine
law and not with his national law, is illegal and void, for his
national law cannot be ignored in regard to those matters that
Article 10 — now Article 16 — of the Civil Code states said
national law should govern.
The parties admit that the decedent, Amos G. Bellis, was a citizen
of the State of Texas, U.S.A., and that under the laws of Texas,
there are no forced heirs or legitimes. Accordingly, since the
intrinsic validity of the provision of the will and the amount of
successional rights are to be determined under Texas law, the
Philippine law on legitimes cannot be applied to the testacy of
Amos G. Bellis.
Wherefore, the order of the probate court is hereby affirmed in
toto, with costs against appellants. So ordered.
Concepcion, C.J., Reyes, J.B.L., Dizon, Regala, Makalintal,
Zaldivar, Sanchez and Castro, JJ., concur.
Footnotes
1
He later filed a motion praying that as a legal heir he be
included in this case as one of the oppositors-appellants;
to file or adopt the opposition of his sisters to the project
of partition; to submit his brief after paying his
proportionate share in the expenses incurred in the
printing of the record on appeal; or to allow him to adopt
the briefs filed by his sisters — but this Court resolved to
deny the motion.
2
San Antonio, Texas was his legal residence.
3
Lim vs. Collector, 36 Phil. 472; In re Testate Estate of
Suntay, 95 Phil. 500.
A.M. No. 2026-CFI December 19, 1981
NENITA DE VERA SUROZA, complainant,
vs.
JUDGE REYNALDO P. HONRADO of the Court of First
Instance of Rizal, Pasig Branch 25 and EVANGELINE S.
YUIPCO, Deputy Clerk of Court, respondents.
AQUINO, J.:
Should disciplinary action be taken against respondent judge for
having admitted to probate a will, which on its face
is void because it is written in English, a language not known to
the illiterate testatrix, and which is probably a forged will because
she and the attesting witnesses did not appear before the notary
as admitted by the notary himself?
That question arises under the pleadings filed in the testate case
and in the certiorari case in the Court of Appeals which reveal the
following tangled strands of human relationship:
Mauro Suroza, a corporal in the 45th Infantry of the U.S. Army
(Philippine Scouts), Fort McKinley, married Marcelina Salvador in
1923 (p. 150, Spec. Proc. No. 7816). They were childless. They
reared a boy named Agapito who used the surname Suroza and
who considered them as his parents as shown in his 1945
marriage contract with Nenita de Vera (p. 15, Rollo of CA-G.R.
No. 08654-R; p. 148, Rollo of Testate Case showing that Agapito
was 5 years old when Mauro married Marcelina in 1923).
Mauro died in 1942. Marcelina, as a veteran's widow, became a
pensioner of the Federal Government. That explains why on her
death she had accumulated some cash in two banks.
Agapito and Nenita begot a child named Lilia who became a
medical technologist and went abroad. Agapito also became a
soldier. He was disabled and his wife Nenita was appointed as
his guardian in 1953 when he was declared an incompetent in
Special Proceeding No. 1807 of the Court of First Instance of
Rizal, Pasig Branch I (p. 16, Rollo of CA-G.R. No. 08654-R).
In that connection, it should be noted that a woman named
Arsenia de la Cruz wanted also to be his guardian in another
proceeding. Arsenia tried to prove that Nenita was living
separately from Agapito and that she (Nenita) admitted to
Marcelina that she was unfaithful to Agapito (pp. 61-63, Record of
testate case).
Judge Bienvenido A. Tan dismissed the second guardianship
proceeding and confirmed Nenita's appointment as guardian of
Agapito (p. 16, Rollo of CA case). Agapito has been staying in a
veteran's hospital in San Francisco or Palo Alto, California (p. 87,
Record).
On a date not indicated in the record, the spouses Antonio Sy
and Hermogena Talan begot a child named Marilyn Sy, who,
when a few days old, was entrusted to Arsenia de la Cruz
(apparently a girl friend of Agapito) and who was later delivered to
Marcelina Salvador Suroza who brought her up as a supposed
daughter of Agapito and as her granddaughter (pp. 23-26, Rollo
of CA-G.R. No.SP-08654-R). Marilyn used the surname Suroza.
She stayed with Marcelina but was not legally adopted by
Agapito. She married Oscar Medrano and is residing at 7666 J.B.
Roxas Street, Makati, apparently a neighbor of Marina Paje, a
resident of 7668 J.B. Roxas Street.
Marcelina supposedly executed a notarial will in Manila on July
23, 1973, when she was 73 years old. That will which is in
English was thumbmarked by her. She was illiterate. Her letters in
English to the Veterans Administration were also thumbmarked
by her (pp. 38-39, CA Rollo). In that wig, Marcelina bequeathed
all her estate to her supposed granddaughter Marilyn.
Marcelina died on November 15, 1974 at the Veterans Hospital in
Quezon City. At the time of her death, she was a resident of 7374
San Maximo Street, Olimpia, Makati, Rizal. She owned a 150-
square meter lot and house in that place. She acquired the lot in
1966 (p. 134, Record of testate case).
On January 13, 1975, Marina Paje, alleged to be a laundrywoman
of Marcelina (P. 97, CA Rollo) and the executrix in her will (the
alternate executrix was Juanita Macaraeg, mother of Oscar,
Marilyn's husband), filed with the Court of First Instance of Rizal,
Pasig Branch 25, a petition for the probate of Marcelina's alleged
will. The case was assigned to Judge Reynaldo P. Honrado.
As there was no opposition, Judge Honrado commissioned his
deputy clerk of court, Evangeline S. Yuipco, to hear the evidence.
The transcripts of the stenographic notes taken at the hearing
before the deputy clerk of court are not in the record.
In an order dated March 31, 1975, Judge Honrado appointed
Marina as administratrix. On the following day, April 1, Judge
Honrado issued two orders directing the Merchants Banking
Corporation and the Bank of America to allow Marina to withdraw
the sum of P10,000 from the savings accounts of Marcelina S.
Suroza and Marilyn Suroza and requiring Corazon Castro, the
custodian of the passbooks, to deliver them to Marina.
Upon motion of Marina, Judge Honrado issued another order
dated April 11, 1975, instructing a deputy sheriff to eject the
occupants of the testatrix's house, among whom was Nenita V.
Suroza, and to place Marina in possession thereof.
That order alerted Nenita to the existence of the testamentary
proceeding for the settlement of Marcelina's estate. She and the
other occupants of the decedent's house filed on April 18 in the
said proceeding a motion to set aside the order of April 11
ejecting them. They alleged that the decedent's son Agapito was
the sole heir of the deceased, that he has a daughter named Lilia,
that Nenita was Agapito's guardian and that Marilyn was not
Agapito's daughter nor the decedent's granddaughter (pp. 52-68,
Record of testate case). Later, they questioned the probate
court's jurisdiction to issue the ejectment order.
In spite of the fact that Judge Honrado was already apprised that
persons, other than Marilyn, were claiming Marcelina's estate, he
issued on April 23 an order probating her supposed will wherein
Marilyn was the instituted heiress (pp. 74-77, Record).
On April 24, Nenita filed in the testate case an omnibus petition
"to set aside proceedings, admit opposition with counter-petition
for administration and preliminary injunction". Nenita in that
motion reiterated her allegation that Marilyn was a stranger to
Marcelina, that the will was not duly executed and attested, that it
was procured by means of undue influence employed by Marina
and Marilyn and that the thumbmarks of the testatrix were
procured by fraud or trick.
Nenita further alleged that the institution of Marilyn as heir is void
because of the preterition of Agapito and that Marina was not
qualified to act as executrix (pp. 83-91, Record).
To that motion was attached an affidavit of Zenaida A. Penaojas
the housemaid of Marcelina, who swore that the alleged will was
falsified (p. 109, Record).
Not content with her motion to set aside the ejectment order (filed
on April 18) and her omnibus motion to set aside the proceedings
(filed on April 24), Nenita filed the next day, April 25, an
opposition to the probate of the will and a counter-petition for
letters of administration. In that opposition, Nenita assailed the
due execution of the will and stated the names and addresses of
Marcelina's intestate heirs, her nieces and nephews (pp. 113-121,
Record). Nenita was not aware of the decree of probate dated
April 23, 1975.
To that opposition was attached an affidavit of Dominga Salvador
Teodocio, Marcelina's niece, who swore that Marcelina never
executed a win (pp. 124-125, Record).
Marina in her answer to Nenita's motion to set aside the
proceedings admitted that Marilyn was not Marcelina's
granddaughter but was the daughter of Agapito and Arsenia de la
Cruz and that Agapito was not Marcelina's sonbut merely
an anak-anakan who was not legally adopted (p. 143, Record).
Judge Honrado in his order of July 17, 1975 dismissed Nenita's
counter-petition for the issuance of letters of administration
because of the non-appearance of her counsel at the hearing.
She moved for the reconsideration of that order.
In a motion dated December 5, 1975, for the consolidation of all
pending incidents, Nenita V. Suroza reiterated her contention that
the alleged will is void because Marcelina did not appear before
the notary and because it is written in English which is not known
to her (pp. 208-209, Record).
Judge Honrado in his order of June 8, 1976 "denied" the various
incidents "raised" by Nenita (p. 284, Record).
Instead of appealing from that order and the order probating the
wig, Nenita "filed a case to annul" the probate proceedings (p.
332, Record). That case, Civil Case No. 24276, Suroza vs. Paje
and Honrado (p. 398, Record), was also assigned to Judge
Honrado. He dismissed it in his order of February 16, 1977 (pp.
398-402, Record).
Judge Honrado in his order dated December 22, 1977, after
noting that the executrix had delivered the estate to Marilyn, and
that the estate tax had been paid, closed the testamentary
proceeding.
About ten months later, in a verified complaint dated October 12,
1978, filed in this Court, Nenita charged Judge Honrado with
having probated the fraudulent will of Marcelina. The complainant
reiterated her contention that the testatrix was illiterate as shown
by the fact that she affixed her thumbmark to the will and that she
did not know English, the language in which the win was written.
(In the decree of probate Judge Honrado did not make any
finding that the will was written in a language known to the
testatrix.)
Nenita further alleged that Judge Honrado, in spite of his
knowledge that the testatrix had a son named Agapito (the
testatrix's supposed sole compulsory and legal heir), who was
preterited in the will, did not take into account the consequences
of such a preterition.
Nenita disclosed that she talked several times with Judge
Honrado and informed him that the testatrix did not know the
executrix Marina Paje, that the beneficiary's real name is Marilyn
Sy and that she was not the next of kin of the testatrix.
Nenita denounced Judge Honrado for having acted corruptly in
allowing Marina and her cohorts to withdraw from various banks
the deposits Marcelina.
She also denounced Evangeline S. Yuipco, the deputy clerk of
court, for not giving her access to the record of the probate case
by alleging that it was useless for Nenita to oppose the probate
since Judge Honrado would not change his decision. Nenita also
said that Evangeline insinuated that if she (Nenita) had ten
thousand pesos, the case might be decided in her favor.
Evangeline allegedly advised Nenita to desist from claiming the
properties of the testatrix because she (Nenita) had no rights
thereto and, should she persist, she might lose her pension from
the Federal Government.
Judge Honrado in his brief comment did not deal specifically with
the allegations of the complaint. He merely pointed to the fact that
Nenita did not appeal from the decree of probate and that in a
motion dated July 6, 1976 she asked for a thirty day period within
which to vacate the house of the testatrix.
Evangeline S. Yuipco in her affidavit said that she never talked
with Nenita and that the latter did not mention Evangeline in her
letter dated September 11, 1978 to President Marcos.
Evangeline branded as a lie Nenita's imputation that she
(Evangeline) prevented Nenita from having access to the record
of the testamentary proceeding. Evangeline was not the
custodian of the record. Evangeline " strongly, vehemently and
flatly denied" Nenita's charge that she (Evangeline) said that the
sum of ten thousand pesos was needed in order that Nenita could
get a favorable decision. Evangeline also denied that she has any
knowledge of Nenita's pension from the Federal Government.
The 1978 complaint against Judge Honorado was brought to
attention of this Court in the Court Administrator's memorandum
of September 25, 1980. The case was referred to Justice Juan A.
Sison of the Court of Appeals for investigation, report and
recommendation. He submitted a report dated October 7, 1981.
On December 14, 1978, Nenita filed in the Court of Appeals
against Judge Honrado a petition for certiorari and prohibition
wherein she prayed that the will, the decree of probate and all the
proceedings in the probate case be declared void.
Attached to the petition was the affidavit of Domingo P. Aquino,
who notarized the will. He swore that the testatrix and the three
attesting witnesses did not appear before him and that he
notarized the will "just to accommodate a brother lawyer on the
condition" that said lawyer would bring to the notary the testatrix
and the witnesses but the lawyer never complied with his
commitment.
The Court of Appeals dismissed the petition because Nenita's
remedy was an appeal and her failure to do so did not entitle her
to resort to the special civil action of certiorari (Suroza vs.
Honrado, CA-G.R. No. SP-08654, May 24, 1981).
Relying on that decision, Judge Honrado filed on November 17,
1981 a motion to dismiss the administrative case for having
allegedly become moot and academic.
We hold that disciplinary action should be taken against
respondent judge for his improper disposition of the testate case
which might have resulted in a miscarriage of justice because the
decedent's legal heirs and not the instituted heiress in the void
win should have inherited the decedent's estate.
A judge may be criminally liable or knowingly rendering an unjust
judgment or interlocutory order or rendering a manifestly unjust
judgment or interlocutory order by reason of inexcusable
negligence or ignorance (Arts. 204 to 206, Revised Penal Code).
Administrative action may be taken against a judge of the court of
first instance for serious misconduct or inefficiency ( Sec. 67,
Judiciary Law). Misconduct implies malice or a wrongful intent,
not a mere error of judgment. "For serious misconduct to exist,
there must be reliable evidence showing that the judicial acts
complained of were corrupt or inspired by an intention to violate
the law, or were in persistent disregard of well-known legal rules"
(In relmpeachment of Horrilleno, 43 Phil. 212, 214-215).
Inefficiency implies negligence, incompetence, ignorance and
carelessness. A judge would be inexcusably negligent if he failed
to observe in the performance of his duties that diligence,
prudence and circumspection which the law requires in the
rendition of any public service (In re Climaco, Adm. Case No.
134-J, Jan. 21, 1974, 55 SCRA 107, 119).
In this case, respondent judge, on perusing the will and noting
that it was written in English and was thumbmarked by an
obviously illiterate testatrix, could have readily perceived that the
will is void.
In the opening paragraph of the will, it was stated that English
was a language "understood and known" to the testatrix. But in its
concluding paragraph, it was stated that the will was read to the
testatrix "and translated into Filipino language". (p. 16, Record of
testate case). That could only mean that the will was written in a
language not known to the illiterate testatrix and, therefore, it is
void because of the mandatory provision of article 804 of the Civil
Code that every will must be executed in a language or dialect
known to the testator. Thus, a will written in English, which was
not known to the Igorot testator, is void and was disallowed (Acop
vs. Piraso, 52 Phil. 660).
The hasty preparation of the will is shown in the attestation clause
and notarial acknowledgment where Marcelina Salvador Suroza
is repeatedly referred to as the "testator" instead of "testatrix".
Had respondent judge been careful and observant, he could have
noted not only the anomaly as to the language of the will but also
that there was something wrong in instituting the supposed
granddaughter as sole heiress and giving nothing at all to her
supposed father who was still alive.
Furthermore, after the hearing conducted by respondent deputy
clerk of court, respondent judge could have noticed that the
notary was not presented as a witness.
In spite of the absence of an opposition, respondent judge should
have personally conducted the hearing on the probate of the will
so that he could have ascertained whether the will was validly
executed.
Under the circumstances, we find his negligence and dereliction
of duty to be inexcusable.
WHEREFORE, for inefficiency in handling the testate case of
Marcelina S. Suroza, a fine equivalent to his salary for one month
is imposed on respondent judge (his compulsory retirement falls
on December 25, 1981).
The case against respondent Yuipco has become moot and
academic because she is no longer employed in the judiciary.
Since September 1, 1980 she has been assistant city fiscal of
Surigao City. She is beyond this Court's disciplinary jurisdiction
(Peralta vs. Firm Adm. Matter No. 2044-CFI November 21, 1980,
101 SCRA 225).
SO ORDERED.
G.R. No. L-4067 November 29, 1951
(Sgd.) NUMERIANO EVANGELISTA
In the Matter of the will of ANTERO MERCADO, deceased.
ROSARIO GARCIA, petitioner,
vs. (Sgd.) BIBIANA ILLEGIBLE
JULIANA LACUESTA, ET AL., respondents.
Elviro L. Peralta and Hermenegildo A. Prieto for petitioner.
Faustino B. Tobia, Juan I. Ines and Federico Tacason for
respondents.
PARAS, C.J.:
This is an appeal from a decision of the Court of Appeals
disallowing the will of Antero Mercado dated January 3, 1943.
The will is written in the Ilocano dialect and contains the following
attestation clause:
We, the undersigned, by these presents to declare that
the foregoing testament of Antero Mercado was signed by
himself and also by us below his name and of this
attestation clause and that of the left margin of the three
pages thereof. Page three the continuation of this
attestation clause; this will is written in Ilocano dialect
which is spoken and understood by the testator, and it
bears the corresponding number in letter which compose
of three pages and all them were signed in the presence
of the testator and witnesses, and the witnesses in the
presence of the testator and all and each and every one
of us witnesses.
In testimony, whereof, we sign this statement, this the
third day of January, one thousand nine hundred forty
three, (1943) A.D.
(Sgd.) "ROSENDA CORTES
The will appears to have been signed by Atty. Florentino Javier
who wrote the name of Antero Mercado, followed below by "A
reugo del testator" and the name of Florentino Javier. Antero
Mercado is alleged to have written a cross immediately after his
name. The Court of Appeals, reversing the judgement of the
Court of First Instance of Ilocos Norte, ruled that the attestation
clause failed (1) to certify that the will was signed on all the left
margins of the three pages and at the end of the will by Atty.
Florentino Javier at the express request of the testator in the
presence of the testator and each and every one of the
witnesses; (2) to certify that after the signing of the name of the
testator by Atty. Javier at the former's request said testator has
written a cross at the end of his name and on the left margin of
the three pages of which the will consists and at the end thereof;
(3) to certify that the three witnesses signed the will in all the
pages thereon in the presence of the testator and of each other.
In our opinion, the attestation clause is fatally defective for failing
to state that Antero Mercado caused Atty. Florentino Javier to
write the testator's name under his express direction, as required
by section 618 of the Code of Civil Procedure. The herein
petitioner (who is appealing by way of certiorari from the decision
of the Court of Appeals) argues, however, that there is no need
for such recital because the cross written by the testator after his
name is a sufficient signature and the signature of Atty. Florentino
Javier is a surplusage. Petitioner's theory is that the cross is as
much a signature as a thumbmark, the latter having been held
sufficient by this Court in the cases of De Gala vs. Gonzales and
Ona, 53 Phil., 104; Dolar vs. Diancin, 55 Phil., 479;
Payad vs. Tolentino, 62 Phil., 848; Neyra vs. Neyra, 76 Phil., 296
and Lopez vs. Liboro, 81 Phil., 429.
It is not here pretended that the cross appearing on the will is the
usual signature of Antero Mercado or even one of the ways by
which he signed his name. After mature reflection, we are not
prepared to liken the mere sign of the cross to a thumbmark, and
the reason is obvious. The cross cannot and does not have the
trustworthiness of a thumbmark.
What has been said makes it unnecessary for us to determine
there is a sufficient recital in the attestation clause as to the
signing of the will by the testator in the presence of the witnesses,
and by the latter in the presence of the testator and of each other.
Wherefore, the appealed decision is hereby affirmed, with against
the petitioner. So ordered.
IN RE PROBATE OF THE WILL OF GABINA RAQUEL,
deceased,
AUREA MATIAS, Petitioner-Appellant,
- versus –
BASILIA SALUD, Oppositor-Appellee.
G. R. NO. L-10751 Present:
Paras, C. J. Bengzon, Montemayor, Reyes, A., Bautista Angelo,
Labrador, Concepcion, Reyes, J. B. L., Endencia, and Feliz, JJ.
Promulgated: June 23, 1958
REPUBLIC OF THE PHILIPPINES SUPREME COURT MANILA
x ------------------------------------------------------------------ x DECISION
REYES, J. B. L., J.:
Appeal from an order of the Court of First Instance of Cavite
(issued in its Special Proceedings No. 5253 on February 10,
1956) denying probate of the purported will of the late Gabina
Raquel.
Admittedly the deceased left no ascendants or descendants, and
according to the proponents she executed the testamentary
document on January 27, 1950, in the City of Cavite, in the
presence of Modesta Gonzales, Felipa Samala and Lourdes
Samonte, who signed as instrumental witnesses, and of attorney
Ricardo Agbunag, who prepared the instrument.
The document in question appears to be composed of three
pages. On the lower half of the second page, preceding the
attestation clause, appears the signature “Gabina Raquel” which
is apparently of admitted authenticity. Alongside it is a smudge in
violet ink, with blurred ridge lines, claimed by the proponents to
be a thumbmark affixed by the testatrix. On the third page, at the
end of the attestation clause appear the signatures appearing on
the left margin of each page; and on the upper part of each
page’s left margin appears a violet ink smudge similar to the one
previously described,
-1-
- 2 - G. R. NO. L-10751
accompanied by the written words “Gabina Raquel” and
underneath said name “by Lourdes Samonte.”
In the purported testament, most of the properties of the testatrix
(appraised at over P160,000.00) are bequeathed to her niece
Aurea Matias, “in recompense for the services rendered to me for
more than 30 years;” some legacies are made to her other
nephews and nieces surnamed Salud and Matias; Aurea Matias
is appointed executrix without bond. Below the signature Gabina
Raquel set at the foot of the will proper, is an attestation clause in
the Spanish language (like the will itself) and reading as follows:
“ATESTIGUAMIENTO
Nosotros, Modesta Gonzales, Felipe Zabala y Lourdes Samonte,
por la presente certificamos que este Testamento compueto de
tres (3) paginas utiles fue otorgado como la ultima voluntad y
testament de Gavina Raquel, quien ha suscrito y firmado en su
margen izquierdo y al pie del mismo, en presencia de todos y
cada uno de nosotros, y tambien nosotros hemos firmado y
atestiguado este testamento compuesto de tres (3) paginas cada
uno en presencia de otros y en la de la testadora, en su margen
izquierdo y al pie del atestiguamiento.
(SGD) MODESTA GONZALES (SGD) FELIPE SAMALA (SGD)
LOURDES SAMONTE”
The testamentary capacity of the testatrix Gabina Raquel despite
her ninety years of age and her disease (herpes zoster), is
conceded. It is also undisputed that she mastered Spanish (the
language in which the document is drawn) and that she could
sign her name.
The proponent’s evidence is to the effect that the deceased
instructed attorney Agbunag to draft her will; that it was brought to
her in the morning of January 27, 1950; that she had the
witnesses summoned and received them in the “ante sala” of her
house; that when the witnesses were seated around a table with
her and attorney Agbunag, the will was read by the latter; that
Gabina Raquel manifested conformity thereto and thumbmarked
the foot of the document and the left margin of each page.
Allegedly upon Agbunag’s insistence, she attempted to sign with
his fountain pen, but was only able to affix the signature at the
end of the testamentary dispositions (in the lower half of page
two) because immediately after, she dropped the pen, grasping
her right shoulder and complaining of pain. After 20 minutes,
attorney Agbunag, seeing that Gabina Raquel could not proceed,
instructed Lourdes Samonte to write “Gabina Raquel by Lourdes
Samonte” next to each thumbmark, and thereafter witnesses
Lourdes Samonte, Felipa Samala and Modesta Gonzalez signed,
in that order, at the foot of the attestation clause and at the left
margin of each page. It is to be noted that witness Modesta
Gonzalez, a 64-year old woman did not testify, as she was
- 3 - G. R. NO. L-10751
found to be suffering from high blood pressure, and proponent’s
expert evidence was to the effect that her memory was impaired,
and unusual excitement might cost her life.
The probate having been opposed by Basilia Salud, a niece of
Gabina Raquel, the case was set for trial. After hearing, Judge
Primitivo Gonzales of the Court of First Instance of Cavite
rendered judgment upholding the contentions of the oppositor
and denied the document’s admission to probate, principally on
the following grounds:
(1) That the attestation clause did not state that the testatrix and
the witnesses signed each and every page of the will; and while
the left margins of each page exhibit the words “Gabina Raquel
by Lourdes Samonte,” the attestation does not express that
Lourdes was expressly directed to sign for the testatrix;
(2) That the proponent did not adequately explain the non-
production of witness Modesta Gonzalez, contrary to sec. 11,
Rule 77 of the Rules of Court;
(3) That the alleged signing and thumbmarking by the deceased
was not done in the presence of the witnesses, nor did the latter
sign in the presence of Gabina Raquel;
(4) That fraud and bad faith attended the execution of the will.
From the adverse decision of the trial court, the proponent
appealed directly to this Court, because the value of the
properties involved in the litigation exceeded P50,000.00.
The trial court refused credence to the evidence for the
proponents on the basis of the expert testimony of Captain José
Fernandez of the Philippine Constabulary’s Criminal Laboratory,
to the effect that (1) the fingerprints appearing at the end and left
margins of the will were impressed over the name of the testatrix,
and after the name was written, contrary to what the proponent’s
witnesses asserted; (2) that the words “Gabina Raquel by
Lourdes Samonte” on the upper left hand margin of page two of
the will were falsified and appear to have been written over a
previous tracing; (3) that the person who wrote “Gabina Raquel
by Lourdes Samonte” is different from the one who wrote
“Lourdes Samonte” as signature of an attesting witness; (4) that
the signature “Lourdes Samonte” on the left margin of page 3 of
the testament was written only after that of Felipa Samala when
the testimony for the proponent was that they were written in the
reverse order; and (5) that the pen used in signing “Gabina
Raquel” at the foot of the will had separated nibs, while the other
signatures in the document were written with a round point pen,
again contrary to the contention for the proponent that only one
pen was used.
After careful consideration of the testimony on record, we are of
the opinion that the facts adverted to by the expert for the
contestant do not clearly support the conclusions drawn by him.
Thus,
- 4 - G. R. NO. L-10751
his assertion that the fingerprints were affixed after writing the
name of the testatrix appears to be an inference drawn from the
fact that the ink of the writing failed to spread along the ridge lines
of the fingerprints. This conclusion obviously failed to take into
account the fact that the evidence is that some 10 or 20 minutes
elapsed between the affixing of the fingerprints and the writing of
the marginal signatures, due to the fact that they were not written
until after a long wait for the testatrix’s attack of pain to subside.
There was sufficient time for the fingerprint (which was made in
rubber stamp ink) to dry, and recognized authorities on the matter
point out that “ink lines over rubber stamps will spread out if the
stamp is not dry” (Soderman O’Connel, Modern Criminal
Investigation, 2d Ed., p. 453); and “if the stamp impression is
allowed to dry thoroughly before the writing is written over it, the
ink will not run out as it does on a damp ink line” (Osborn,
Questioned Documents, 2d Ed., p. 514). To such effect, the only
composition of the rubber stamp ink no doubt contributes. Thus,
while the spreading out or running out of the writing ink along the
stamping ink lines proves that the writing was made later, the
absence of spread does not prove that stamping ink lines were
made after the writing was done.
As to the alleged forgery of Samonte’s signature in page 3, the
lighter shade of the underlying characters strongly indicates that
the overwriting was made to correct ink failure or other
imperfection in the first writing. The expert’s opinion is also
discredited by the fact that Samonte being available to the
proponent (since she testified in favor of the will), there would be
no sense in forging Samonte’s signature, when an authentic one
was at proponent’s disposal all the time. And assuming it to be
true that in page 3 of the will Exh. “D”, Samonte signed after
Samala, while in the other pages she had signed ahead, such
occasional departure from the order usually followed does not
signify that the execution of the testament was in any way
abnormal or fraudulent. As to the alleged use of two different
pens, expert Fernandez’ conclusions are backed more by opinion
than by facts, besides being contradicted by expert Espinosa, and
the proponent’s other witnesses.
The basis for the conclusions of expert Fernandez, who admitted
having been engaged on a contingent basis, not being
satisfactorily established and his testimony being contradicted by
the two witnesses to the will and the expert for the defense, the
lower court erred in considering that the preponderance of the
evidence lay with contestants (Roxas vs. Roxas, 48 O. G. 2177;
cf Galvez vs. Galvez, 26 Phil. 243; Samson vs. Tan Quintin, 44
Phil. 573).
“We do not venture to impute bias to the experts introduced
during the trial, but we hasten to state that the positive testimony
of the three attesting witnesses ought to prevail over the expert
opinions which cannot be mathematically precise but which on
the contrary, are ‘subject to inherent infirmities’. x x x”
- 5 - G. R. NO. L-10751
“Speculations on these matters should give way to the positive
declarations of the attesting witnesses. The law impliedly
recognizes the almost conclusive weight of the testimony of
attesting witnesses when it provides that ‘if the will is contested,
all the subscribing witnesses present in the Philippines and not
insane, must be produced and examined, and the death,
absence, or insanity or any of them must be satisfactorily shown
to the court.’ (Section 11, Rule 77, Rules of Court.)” (Roxas vs.
Roxas, supra)
We are aware that the bequest of the greater portion of
decedent’s estate in favor of proponent Aurea Matias is contained
in the first page of the contested will, while the only authentic
signature of the deceased appeared in the second page; but the
appointment of proponent as executrix of the will without bond
(con relevacion de fianza) appearing in the very same page (page
2) fully bespeaks the affection of the testatrix for the proponent,
who had lived with the deceased, helped and served her for thirty
years, and morally confirms the contested bequest.
The court below likewise held against the proponent the fact that
the subscribing witness Modesta Gonzalez was not a witness;
claiming that such failure was a violation of sec. 11, Rule 77 of
the Rules of Court. But while Modesta Gonzalez was not placed
on the stand, the proponent made no secret of her whereabouts,
nor of the reason why she was not asked to testify: the record
shows that both Dr. Bellaflor and Dr. Sanchez agreed that
Gonzalez was suffering from hypertension, that she was in the
danger zone, and might collapse and die as a consequence of a
little excitement on her part. The trial court, having expressly
made of record that “it would not like to assume responsibility for
whatever might happen to this woman” (t.s.n. p. 301), could not
logically hold proponent to account for not risking Modesta’s
death. At any rate, contestants were free to call her as their own
witness, had they felt justified in so doing; so that no unfavorable
inference can be drawn from the fact that Modesta Gonzalez was
not called by the proponent to the witness stand.
Finally, the contestant urges that the fingermark of the testatrix
can not be regarded as her valid signature since it does not show
distinct identifying ridge lines; and thence, that the attestation
clause, transcribed earlier in this opinion, should be held
defective because it fails to state that Lourdes Samonte signed
for the testator. This Court has repeatedly held that the legal
requisite that the will should be signed by the testator is satisfied
by a thumbprint or other mark affixed by him (De Gala vs. Ona,
53 Phil. 105; Dolor vs. Diancin, 55 Phil. 479; Neyra vs. Neyra, 42
O. G. 2817; Lopez vs. Liboro, 46 O. G. (Supp. to No. 1) 211); and
that where such mark is affixed by the decedent, it is
unnecessary to state in the attestation clause that another person
wrote the testator’s name at his request (Payad vs. Tolentino, 62
Phil. 849). While in some of these cases the signing by mark was
described in the will or in the attestation clause, it does not
appear that the Court ever held that the absence of such
description is a fatal defect.
sablan
So Ordered.
WE CONCUR:
- 6 - G. R. NO. L-10751
Appellant relies on the case of Garcia vs. Lacuesta, G. R. L-
4067, Nov. 29, 1951, wherein this Court denied probate holding
that a will signed with a cross written after the testator’s name is
not a sufficient signature. But in that case no showing was made
that the cross mark was the testator’s habitual signature nor was
any explanation given why he should use a cross when he knew
how to sign. In the case now before us, it was shown that the
herpes zoster that afflicted the right arm and shoulder of testatrix
made writing a difficult and painful act, to the extent that, after
writing one signature on the second page, she dropped the pen
because of an attack of pain that lasted many minutes and
evidently discourage attempts to sign.
As to the clarity of the ridge impressions, it is so dependent on
aleatory circumstances (consistency of the ink, overinking,
slipping of the finger, etc.) as to require a dexterity that can be
expected of very few persons; and we do not believe testators
should be required to possess the skill of trained officers. It is to
be conceded that where a testator employs an unfamiliar way of
signing, and both the attestation clause and the will are silent on
the matter, such silence is a factor to be considered against the
authenticity of the testament; but the failure to describe the
unusual signature by itself alone is not sufficient to refuse probate
when the evidence for the proponent fully satisfies the court (as it
does satisfy us in this case) that the will was executed and
witnessed as required by law.
WHEREFORE, the judgment appealed from is reversed, and the
document Exh. “D” ordered admitted to probate. Let the records
be returned to the court of origin for further proceedings in
accordance with this opinion. Costs against appellees.
(Sgd.) JOSE B. L. REYES
(Sgd.) RICARDO PARAS (Sgd.) CESAR BENGZON (Sgd.)
MARCELINO R. MONTEMAYOR (Sgd.) ALEX. REYES (Sgd.)
FELIX BAUTISTA ANGELO (Sgd.) ROBERTO CONCEPCION
(Sgd.) ALFONSO FELIX
Transcriber’s Notes:
This case was transcribed from a copy available in the Reserve
Section of the UP College of Law Library .
An Unreported Case
Determined case searchers will find that the Philippine Reports
series has an entry of this case in 104 Phil. 1046, but a reading of
that entry will show that the case is one of those unreported in
the series. Hence, a search for the case in other sources, such as
the Law Library, needs be resorted to.
Formal Characteristics of the Original Copy
The original copy of the case is typewritten and contained in six
pages of long sheets of paper, bound together with other cases in
a compilation available in the library archives.
The first page is numbered by hand at the bottom, while the
succeeding pages are numbered by type at the top. All pages,
except the first, are labeled with the locator or G. R. No. on the
upper right hand corner. On the other hand, beginning the first
page, successive numbers can be seen on the lower right hand
corner, which starts from the number 16 and ends with the
number 21. The latter numbering may refer to the pagination for
the whole bound case compilation.
Formal Changes
The transcription was done as close as possible to the original
text as it was typewritten in the original copy, disregarding the
notations made by some readers of the original copy.
Slight modifications were made in the process of transcription,
such as font face, font size, document size, and page layout.
No Substantial Changes
On the other hand, no substantial changes from the copy were
made.
Filled In Word
In page 5 of the transcription, the last words of the last paragraph
read, “the absence of such description...” However, in page 5 of
the original copy containing the same words, the lower part of the
page is slightly torn off, so that the word between “absence” and
“such” is missing. The most logical word that would fill the blank
which will preserve the sense of the statement is “of”, and hence,
the insertion of this word in the transcription.
Possible Mistakes or Errors in the Original Copy
If slight mistakes or errors were present in the original copy of the
case, then most likely, these mistakes or errors are the following:
1. In the quoted Atestiguamiento found in page 2, a. “Felipe” in
the paragraph should be “Felipa”; b. “compueto” should be
“compuesto”;
2. The las t nam e Gon zale s is usual ly in terch anged with Gonz
alez thro ughou t the whol e cop y; 3. In page 5, in the last
paragraph mentioning a list of case citations:
a. The Phil. citation for De Gala vs. Ona should be 53 Phil. 104,
and not 53 Phil. 105; b. Dolor vs. Diancin should be Dolar vs.
Diancin; c. The Phil. citation for Payad vs. Tolentino should be 62
Phil. 848, and not 62 Phil.
849.
On the other hand, a possible substantial mistake can be found in
page 6, where the first paragraph opens with the word
“Appellant”. A reading of the other parts of the decision (and the
judgment of the Court) would reveal that this word should have
been “Appellee”, because the argument following the word is
more consistent with the contentions of the appellee in the case.
(In fact, a reader of the original copy made a handwritten
correction of the word, striking out the letters “ant” and placing
above it the letters “ee”, so that the word would read “Appellee”.)
The Signature “sablan” It appears that the word “sablan” typed at
the end of the original copy is the signature or marking of the one
who prepared the copy.
Henry C. Flordeliza
Transcr iber
G.R. No. L-5971 February 27, 1911
BEATRIZ NERA, ET AL., plaintiffs-appellees,
vs.
NARCISA RIMANDO, defendant-appellant.
Valerio Fontanilla and Andres Asprer for appellant.
Anacleto Diaz for appellees.
CARSON, J.:
The only question raised by the evidence in this case as to the
due execution of the instrument propounded as a will in the court
below, is whether one of the subscribing witnesses was present
in the small room where it was executed at the time when the
testator and the other subscribing witnesses attached their
signatures; or whether at that time he was outside, some eight or
ten feet away, in a large room connecting with the smaller room
by a doorway, across which was hung a curtain which made it
impossible for one in the outside room to see the testator and the
other subscribing witnesses in the act of attaching their
signatures to the instrument.
A majority of the members of the court is of opinion that this
subscribing witness was in the small room with the testator and
the other subscribing witnesses at the time when they attached
their signatures to the instrument, and this finding, of course,
disposes of the appeal and necessitates the affirmance of the
decree admitting the document to probate as the last will and
testament of the deceased.
The trial judge does not appear to have considered the
determination of this question of fact of vital importance in the
determination of this case, as he was of opinion that under the
doctrine laid down in the case of Jaboneta vs. Gustilo (5 Phil.
Rep., 541) the alleged fact that one of the subscribing witnesses
was in the outer room when the testator and the other describing
witnesses signed the instrument in the inner room, had it been
proven, would not be sufficient in itself to invalidate the execution
of the will. But we are unanimously of opinion that had this
subscribing witness been proven to have been in the outer room
at the time when the testator and the other subscribing witnesses
attached their signatures to the instrument in the inner room, it
would have been invalid as a will, the attaching of those
signatures under circumstances not being done "in the presence"
of the witness in the outer room. This because the line of vision
from this witness to the testator and the other subscribing
witnesses would necessarily have been impeded by the curtain
separating the inner from the outer one "at the moment of
inscription of each signature."
In the case just cited, on which the trial court relied, we held that:
The true test of presence of the testator and the
witnesses in the execution of a will is not whether they
actually saw each other sign, but whether they might have
been seen each other sign, had they chosen to do so,
considering their mental and physical condition and
position with relation to each other at the moment of
inscription of each signature.
But it is especially to be noted that the position of the parties with
relation to each other at the moment of the subscription of each
signature, must be such that they may see each other sign if they
choose to do so. This, of course, does not mean that the testator
and the subscribing witnesses may be held to have executed the
instrument in the presence of each other if it appears that they
would not have been able to see each other sign at that moment,
without changing their relative positions or existing conditions.
The evidence in the case relied upon by the trial judge discloses
that "at the moment when the witness Javellana signed the
document he was actually and physically present and in such
position with relation to Jaboneta that he could see everything
that took place by merely casting his eyes in the proper direction
and without any physical obstruction to prevent his doing so." And
the decision merely laid down the doctrine that the question
whether the testator and the subscribing witnesses to an alleged
will sign the instrument in the presence of each other does not
depend upon proof of the fact that their eyes were actually cast
upon the paper at the moment of its subscription by each of them,
but that at that moment existing conditions and their position with
relation to each other were such that by merely casting the eyes
in the proper direction they could have seen each other sign. To
extend the doctrine further would open the door to the possibility
of all manner of fraud, substitution, and the like, and would defeat
the purpose for which this particular condition is prescribed in the
code as one of the requisites in the execution of a will.
The decree entered by the court below admitting the instrument
propounded therein to probate as the last will and testament of
Pedro Rimando, deceased, is affirmed with costs of this instance
against the appellant.
G.R. No. L-18979 June 30, 1964
IN THE MATTER OF THE TESTATE ESTATE OF THE LATE
JOSEFA VILLACORTE.
CELSO ICASIANO, petitioner-appellee,
vs.
NATIVIDAD ICASIANO and ENRIQUE ICASIANO, oppositors-
appellants.
Jose W. Diokno for petitioner-appellee.
Rosendo J. Tansinin for oppositor-appellant Natividad Icasiano.
Jaime R. Nuevas for oppositor-appellant Enrique Icasiano.
REYES, J.B.L., J.:
Appeal from an order of the Court of First Instance of Manila
admitting to probate the document and its duplicate, marked as
Exhibits "A" and "A-1", as the true last will and testament of
Josefa Villacorte, deceased, and appointing as executor Celso
Icasiano, the person named therein as such.
This special proceeding was begun on October 2, 1958 by a
petition for the allowance and admission to probate of the original,
Exhibit "A" as the alleged will of Josefa Villacorte, deceased, and
for the appointment of petitioner Celso Icasiano as executor
thereof.
The court set the proving of the alleged will for November 8,
1958, and caused notice thereof to be published for three (3)
successive weeks, previous to the time appointed, in the
newspaper "Manila chronicle", and also caused personal service
of copies thereof upon the known heirs.
On October 31, 1958, Natividad Icasiano, a daughter of the
testatrix, filed her opposition; and on November 10, 1958, she
petitioned to have herself appointed as a special administrator, to
which proponent objected. Hence, on November 18, 1958, the
court issued an order appointing the Philippine Trust Company as
special administrator. 1äwphï1.ñët
On February 18, 1959, Enrique Icasiano, a son of the testatrix,
also filed a manifestation adopting as his own Natividad's
opposition to the probate of the alleged will.
On March 19, 1959, the petitioner proponent commenced the
introduction of his evidence; but on June 1, 1959, he filed a
motion for the admission of an amended and supplemental
petition, alleging that the decedent left a will executed in duplicate
with all the legal requirements, and that he was, on that date,
submitting the signed duplicate (Exhibit "A-1"), which he allegedly
found only on or about May 26, 1959. On June 17, 1959,
oppositors Natividad Icasiano de Gomez and Enrique Icasiano
filed their joint opposition to the admission of the amended and
supplemental petition, but by order of July 20, 1959, the court
admitted said petition, and on July 30, 1959, oppositor Natividad
Icasiano filed her amended opposition. Thereafter, the parties
presented their respective evidence, and after several hearings
the court issued the order admitting the will and its duplicate to
probate. From this order, the oppositors appealed directly to this
Court, the amount involved being over P200,000.00, on the
ground that the same is contrary to law and the evidence.
The evidence presented for the petitioner is to the effect that
Josefa Villacorte died in the City of Manila on September 12,
1958; that on June 2, 1956, the late Josefa Villacorte executed a
last will and testament in duplicate at the house of her daughter
Mrs. Felisa Icasiano at Pedro Guevara Street, Manila, published
before and attested by three instrumental witnesses, namely:
attorneys Justo P. Torres, Jr. and Jose V. Natividad, and Mr.
Vinicio B. Diy; that the will was acknowledged by the testatrix and
by the said three instrumental witnesses on the same date before
attorney Jose Oyengco Ong, Notary Public in and for the City of
Manila; and that the will was actually prepared by attorney Fermin
Samson, who was also present during the execution and signing
of the decedent's last will and testament, together with former
Governor Emilio Rustia of Bulacan, Judge Ramon Icasiano and a
little girl. Of the said three instrumental witnesses to the execution
of the decedent's last will and testament, attorneys Torres and
Natividad were in the Philippines at the time of the hearing, and
both testified as to the due execution and authenticity of the said
will. So did the Notary Public before whom the will was
acknowledged by the testatrix and attesting witnesses, and also
attorneys Fermin Samson, who actually prepared the document.
The latter also testified upon cross examination that he prepared
one original and two copies of Josefa Villacorte last will and
testament at his house in Baliuag, Bulacan, but he brought only
one original and one signed copy to Manila, retaining one
unsigned copy in Bulacan.
The records show that the original of the will, which was
surrendered simultaneously with the filing of the petition and
marked as Exhibit "A" consists of five pages, and while signed at
the end and in every page, it does not contain the signature of
one of the attesting witnesses, Atty. Jose V. Natividad, on page
three (3) thereof; but the duplicate copy attached to the amended
and supplemental petition and marked as Exhibit "A-1" is signed
by the testatrix and her three attesting witnesses in each and
every page.
The testimony presented by the proponents of the will tends to
show that the original of the will and its duplicate were subscribed
at the end and on the left margin of each and every page thereof
by the testatrix herself and attested and subscribed by the three
mentioned witnesses in the testatrix's presence and in that of one
another as witnesses (except for the missing signature of attorney
Natividad on page three (3) of the original); that pages of the
original and duplicate of said will were duly numbered; that the
attestation clause thereof contains all the facts required by law to
be recited therein and is signed by the aforesaid attesting
witnesses; that the will is written in the language known to and
spoken by the testatrix that the attestation clause is in a language
also known to and spoken by the witnesses; that the will was
executed on one single occasion in duplicate copies; and that
both the original and the duplicate copies were duly
acknowledged before Notary Public Jose Oyengco of Manila on
the same date June 2, 1956.
Witness Natividad who testified on his failure to sign page three
(3) of the original, admits that he may have lifted two pages
instead of one when he signed the same, but affirmed that page
three (3) was signed in his presence.
Oppositors-appellants in turn introduced expert testimony to the
effect that the signatures of the testatrix in the duplicate (Exhibit
"A-1") are not genuine nor were they written or affixed on the
same occasion as the original, and further aver that granting that
the documents were genuine, they were executed through
mistake and with undue influence and pressure because the
testatrix was deceived into adopting as her last will and testament
the wishes of those who will stand to benefit from the provisions
of the will, as may be inferred from the facts and circumstances
surrounding the execution of the will and the provisions and
dispositions thereof, whereby proponents-appellees stand to
profit from properties held by them as attorneys-in-fact of the
deceased and not enumerated or mentioned therein, while
oppositors-appellants are enjoined not to look for other properties
not mentioned in the will, and not to oppose the probate of it, on
penalty of forfeiting their share in the portion of free disposal.
We have examined the record and are satisfied, as the trial court
was, that the testatrix signed both original and duplicate copies
(Exhibits "A" and "A-1", respectively) of the will spontaneously, on
the same in the presence of the three attesting witnesses, the
notary public who acknowledged the will; and Atty. Samson, who
actually prepared the documents; that the will and its duplicate
were executed in Tagalog, a language known to and spoken by
both the testator and the witnesses, and read to and by the
testatrix and Atty. Fermin Samson, together before they were
actually signed; that the attestation clause is also in a language
known to and spoken by the testatrix and the witnesses. The
opinion of expert for oppositors, Mr. Felipe Logan, that the
signatures of the testatrix appearing in the duplicate original were
not written by the same had which wrote the signatures in the
original will leaves us unconvinced, not merely because it is
directly contradicted by expert Martin Ramos for the proponents,
but principally because of the paucity of the standards used by
him to support the conclusion that the differences between the
standard and questioned signatures are beyond the writer's range
of normal scriptural variation. The expert has, in fact, used as
standards only three other signatures of the testatrix besides
those affixed to the original of the testament (Exh. A); and we feel
that with so few standards the expert's opinion and the signatures
in the duplicate could not be those of the testatrix becomes
extremely hazardous. This is particularly so since the comparison
charts Nos. 3 and 4 fail to show convincingly that the are radical
differences that would justify the charge of forgery, taking into
account the advanced age of the testatrix, the evident variability
of her signatures, and the effect of writing fatigue, the duplicate
being signed right the original. These, factors were not discussed
by the expert.
Similarly, the alleged slight variance in blueness of the ink in the
admitted and questioned signatures does not appear reliable,
considering the standard and challenged writings were affixed to
different kinds of paper, with different surfaces and reflecting
power. On the whole, therefore, we do not find the testimony of
the oppositor's expert sufficient to overcome that of the notary
and the two instrumental witnesses, Torres and Natividad (Dr. Diy
being in the United States during the trial, did not testify).
Nor do we find adequate evidence of fraud or undue influence.
The fact that some heirs are more favored than others is proof of
neither (see In re Butalid, 10 Phil. 27; Bugnao vs. Ubag, 14 Phil.
163; Pecson vs. Coronal, 45 Phil. 216). Diversity of
apportionment is the usual reason for making a testament;
otherwise, the decedent might as well die intestate. The
testamentary dispositions that the heirs should not inquire into
other property and that they should respect the distribution made
in the will, under penalty of forfeiture of their shares in the free
part do not suffice to prove fraud or undue influence. They appear
motivated by the desire to prevent prolonged litigation which, as
shown by ordinary experience, often results in a sizeable portion
of the estate being diverted into the hands of non-heirs and
speculators. Whether these clauses are valid or not is a matter to
be litigated on another occassion. It is also well to note that, as
remarked by the Court of Appeals in Sideco vs. Sideco, 45 Off.
Gaz. 168, fraud and undue influence are mutually repugnant and
exclude each other; their joining as grounds for opposing probate
shows absence of definite evidence against the validity of the
will.
On the question of law, we hold that the inadvertent failure of one
witness to affix his signature to one page of a testament, due to
the simultaneous lifting of two pages in the course of signing, is
not per se sufficient to justify denial of probate. Impossibility of
substitution of this page is assured not only the fact that the
testatrix and two other witnesses did sign the defective page, but
also by its bearing the coincident imprint of the seal of the notary
public before whom the testament was ratified by testatrix and all
three witnesses. The law should not be so strictly and literally
interpreted as to penalize the testatrix on account of the
inadvertence of a single witness over whose conduct she had no
control, where the purpose of the law to guarantee the identity of
the testament and its component pages is sufficiently attained, no
intentional or deliberate deviation existed, and the evidence on
record attests to the full observance of the statutory requisites.
Otherwise, as stated in Vda. de Gil. vs. Murciano, 49 Off. Gaz.
1459, at 1479 (decision on reconsideration) "witnesses may
sabotage the will by muddling or bungling it or the attestation
clause".
That the failure of witness Natividad to sign page three (3) was
entirely through pure oversight is shown by his own testimony as
well as by the duplicate copy of the will, which bears a complete
set of signatures in every page. The text of the attestation clause
and the acknowledgment before the Notary Public likewise
evidence that no one was aware of the defect at the time.
This would not be the first time that this Court departs from a
strict and literal application of the statutory requirements, where
the purposes of the law are otherwise satisfied. Thus, despite the
literal tenor of the law, this Court has held that a testament, with
the only page signed at its foot by testator and witnesses, but not
in the left margin, could nevertheless be probated (Abangan vs.
Abangan, 41 Phil. 476); and that despite the requirement for the
correlative lettering of the pages of a will, the failure to make the
first page either by letters or numbers is not a fatal defect (Lopez
vs. Liboro, 81 Phil. 429). These precedents exemplify the Court's
policy to require satisfaction of the legal requirements in order to
guard against fraud and bid faith but without undue or
unnecessary curtailment of the testamentary privilege.
The appellants also argue that since the original of the will is in
existence and available, the duplicate (Exh. A-1) is not entitled to
probate. Since they opposed probate of original because it lacked
one signature in its third page, it is easily discerned that
oppositors-appellants run here into a dilemma; if the original is
defective and invalid, then in law there is no other will but the duly
signed carbon duplicate (Exh. A-1), and the same is probatable. If
the original is valid and can be probated, then the objection to the
signed duplicate need not be considered, being superfluous and
irrelevant. At any rate, said duplicate, Exhibit A-1, serves to prove
that the omission of one signature in the third page of the original
testament was inadvertent and not intentional.
That the carbon duplicate, Exhibit A-1, was produced and
admitted without a new publication does not affect the jurisdiction
of the probate court, already conferred by the original publication
of the petition for probate. The amended petition did not
substantially alter the one first filed, but merely supplemented it
by disclosing the existence of the duplicate, and no showing is
made that new interests were involved (the contents of Exhibit A
and A-1 are admittedly identical); and appellants were duly
notified of the proposed amendment. It is nowhere proved or
claimed that the amendment deprived the appellants of any
substantial right, and we see no error in admitting the amended
petition.
IN VIEW OF THE FOREGOING, the decision appealed from is
affirmed, with costs against appellants.
G.R. No. L-32213 November 26, 1973
AGAPITA N. CRUZ, petitioner,
vs.
HON. JUDGE GUILLERMO P. VILLASOR, Presiding Judge of
Branch I, Court of First Instance of Cebu, and MANUEL B.
LUGAY, respondents.
Paul G. Gorrez for petitioner.
Mario D. Ortiz for respondent Manuel B. Lugay.
ESGUERRA, J.:
Petition to review on certiorari the judgment of the Court First
Instance of Cebu allowing the probate of the last will a testament
of the late Valente Z. Cruz. Petitioner-appellant Agapita N. Cruz,
the surviving spouse of the said decease opposed the allowance
of the will (Exhibit "E"), alleging the will was executed through
fraud, deceit, misrepresentation and undue influence; that the
said instrument was execute without the testator having been fully
informed of the content thereof, particularly as to what properties
he was disposing and that the supposed last will and testament
was not executed in accordance with law. Notwithstanding her
objection, the Court allowed the probate of the said last will and
testament Hence this appeal by certiorari which was given due
course.
The only question presented for determination, on which the
decision of the case hinges, is whether the supposed last will and
testament of Valente Z. Cruz (Exhibit "E") was executed in
accordance with law, particularly Articles 805 and 806 of the new
Civil Code, the first requiring at least three credible witnesses to
attest and subscribe to the will, and the second requiring the
testator and the witnesses to acknowledge the will before a
notary public.
Of the three instrumental witnesses thereto, namely Deogracias
T. Jamaloas Jr., Dr. Francisco Pañares and Atty. Angel H. Teves,
Jr., one of them, the last named, is at the same time the Notary
Public before whom the will was supposed to have been
acknowledged. Reduced to simpler terms, the question was
attested and subscribed by at least three credible witnesses in
the presence of the testator and of each other, considering that
the three attesting witnesses must appear before the notary
public to acknowledge the same. As the third witness is the
notary public himself, petitioner argues that the result is that only
two witnesses appeared before the notary public to acknowledge
the will. On the other hand, private respondent-appellee, Manuel
B. Lugay, who is the supposed executor of the will, following the
reasoning of the trial court, maintains that there is substantial
compliance with the legal requirement of having at least three
attesting witnesses even if the notary public acted as one of
them, bolstering up his stand with 57 American Jurisprudence, p.
227 which, insofar as pertinent, reads as follows:
It is said that there are, practical reasons for
upholding a will as against the purely technical
reason that one of the witnesses required by law
signed as certifying to an acknowledgment of the
testator's signature under oath rather than as
attesting the execution of the instrument.
After weighing the merits of the conflicting claims of the parties,
We are inclined to sustain that of the appellant that the last will
and testament in question was not executed in accordance with
law. The notary public before whom the will was acknowledged
cannot be considered as the third instrumental witness since he
cannot acknowledge before himself his having signed the will. To
acknowledge before means to avow (Javellana v. Ledesma, 97
Phil. 258, 262; Castro v. Castro, 100 Phil. 239, 247); to own as
genuine, to assent, to admit; and "before" means in front or
preceding in space or ahead of. (The New Webster Encyclopedic
Dictionary of the English Language, p. 72; Funk & Wagnalls New
Standard Dictionary of the English Language, p. 252; Webster's
New International Dictionary 2d. p. 245.) Consequently, if the
third witness were the notary public himself, he would have to
avow assent, or admit his having signed the will in front of
himself. This cannot be done because he cannot split his
personality into two so that one will appear before the other to
acknowledge his participation in the making of the will. To permit
such a situation to obtain would be sanctioning a sheer absurdity.
Furthermore, the function of a notary public is, among others, to
guard against any illegal or immoral arrangement Balinon v. De
Leon, 50 0. G. 583.) That function would defeated if the notary
public were one of the attesting instrumental witnesses. For them
he would be interested sustaining the validity of the will as it
directly involves him and the validity of his own act. It would place
him in inconsistent position and the very purpose of
acknowledgment, which is to minimize fraud (Report of Code
Commission p. 106-107), would be thwarted.
Admittedly, there are American precedents holding that notary
public may, in addition, act as a witness to the executive of the
document he has notarized. (Mahilum v. Court Appeals, 64 0. G.
4017; 17 SCRA 482; Sawyer v. Cox, 43 Ill. 130). There are others
holding that his signing merely as notary in a will nonetheless
makes him a witness thereon (Ferguson v. Ferguson, 47 S. E. 2d.
346; In Re Douglas Will, N. Y. S. 2d. 641; Ragsdal v. Hill, 269 S.
W. 2d. 911, Tyson Utterback, 122 So. 496; In Re Baybee's Estate
160 N. 900; W. Merill v. Boal, 132 A. 721; See also Trenwith v.
Smallwood, 15 So. 1030). But these authorities do not serve the
purpose of the law in this jurisdiction or are not decisive of the
issue herein because the notaries public and witnesses referred
to aforecited cases merely acted as instrumental, subscribing
attesting witnesses, and not as acknowledging witnesses. He the
notary public acted not only as attesting witness but also
acknowledging witness, a situation not envisaged by Article 805
of the Civil Code which reads:
ART. 806. Every will must be acknowledged
before a notary public by the testator and the
witnesses. The notary public shall not be required
to retain a copy of the will or file another with the
office of the Clerk of Court. [Emphasis supplied]
To allow the notary public to act as third witness, or one the
attesting and acknowledging witnesses, would have the effect of
having only two attesting witnesses to the will which would be in
contravention of the provisions of Article 80 be requiring at least
three credible witnesses to act as such and of Article 806 which
requires that the testator and the required number of witnesses
must appear before the notary public to acknowledge the will. The
result would be, as has been said, that only two witnesses
appeared before the notary public for or that purpose. In the
circumstances, the law would not be duly in observed.
FOR ALL THE FOREGOING, the judgment appealed from is
hereby reversed and the probate of the last will and testament of
Valente Z. Cruz (Exhibit "E") is declared not valid and hereby set
aside.
Cost against the appellee.
G.R. No. L-7179 June 30, 1955
Testate Estate of the Late Apolinaria Ledesma. FELICIDAD
JAVELLANA, petitioner-appellee,
vs.
DOÑA MATEA LEDESMA, oppositor-appellant.
Fulgencio Vega and Felix D. Bacabac for appellant.
Benjamin H. Tirot for appellee.
REYES, J.B.L., J.:
By order of July 23, 1953, the Court of First Instance of Iloilo
admitted to probate the documents in the Visayan dialect, marked
Exhibits D and E, as the testament and codicil duly executed by
the deceased Da. Apolinaria Ledesma Vda. de Javellana, on
March 30, 1950, and May 29, 1952, respectively, with Ramon
Tabiana, Gloria Montinola de Tabiana and Vicente Yap as
witnesses. The contestant, Da. Matea Ledesma, sister and
nearest surviving relative of said deceased, appealed from the
decision, insisting that the said exhibits were not executed in
conformity with law. The appeal was made directly to this Court
because the value of the properties involved exceeded two
hundred thousand pesos.
Originally the opposition to the probate also charged that the
testatrix lacked testamentary capacity and that the dispositions
were procured through undue influence. These grounds were
abandoned at the hearing in the court below, where the issue was
concentrated into three specific questions: (1) whether the
testament of 1950 was executed by the testatrix in the presence
of the instrumental witnesses; (2) whether the acknowledgment
clause was signed and the notarial seal affixed by the notary
without the presence of the testatrix and the witnesses; and (3) if
so, whether the codicil was thereby rendered invalid and
ineffective. These questions are the same ones presented to us
for resolution.
The contestant argues that the Court below erred in refusing
credence to her witnesses Maria Paderogao and Vidal Allado,
cook and driver, respectively, of the deceased Apolinaria
Ledesma. Both testified that on March 30, 1950, they saw and
heard Vicente Yap (one of the witnesses to the will) inform the
deceased that he had brought the "testamento" and urge her to
go to attorney Tabiana's office to sign it; that Da. Apolinaria
manifested that she could not go, because she was not feeling
well; and that upon Yap's insistence that the will had to be signed
in the attorney's office and not elsewhere, the deceased took the
paper and signed it in the presence of Yap alone, and returned it
with the statement that no one would question it because the
property involved was exclusively hers.
Our examination of the testimony on record discloses no grounds
for reversing the trial Court's rejection of the improbable story of
the witnesses. It is squarely contradicted by the concordant
testimony of the instrumental witnesses, Vicente Yap, Atty.
Ramon Tabiana, and his wife Gloria Montinola, who asserted
under oath that the testament was executed by testatrix and
witnesses in the presence of each other, at the house of the
decedent on General Hughes St., Iloilo City, on March 30, 1950.
And it is highly unlikely, and contrary to usage, that either
Tabiana or Yap should have insisted that Da. Apolinaria, an infirm
lady then over 80 years old, should leave her own house in order
to execute her will, when all three witnesses could have easily
repaired thither for the purpose. Moreover, the cross-examination
has revealed fatal flaws in the testimony of Contestant's
witnesses. Both claim to have heard the word "testamento" for the
first time when Yap used it; and they claimed ability to recall that
word four years later, despite the fact that the term meant nothing
to either. It is well known that what is to be remembered must first
be rationally conceived and assimilated (II Moore on Facts, p.
884). Likewise, Maria Paderogao was positive that Yap brought
the will, and that the deceased alone signed it, precisely on
March 30, 1950; but she could remember no other date, nor give
satisfactory explanation why that particular day stuck in her mind.
Worse still, Allado claimed to have heard what allegedly
transpired between Yap and Da. Apolinaria from the kitchen of
the house, that was later proved to have been separated from the
deceased's quarters, and standing at a much lower level, so that
conversations in the main building could not be distinctly heard
from the kitchen. Later, on redirect examination, Allado sought to
cure his testimony by claiming that he was upstairs in a room
where the servants used to eat when he heard Yap converse with
his mistress; but this correction is unavailing, since it was plainly
induced by two highly leading questions from contestant's
counsel that had been previously ruled out by the trial Court.
Besides, the contradiction is hardly consonant with this witness'
18 years of service to the deceased.
Upon the other hand, the discrepancies in the testimony of the
instrumental witnesses urged upon us by the contestant-
appellant, concerning the presence or absence of Aurelio
Montinola at the signing of the testament or of the codicil, and the
identity of the person who inserted the date therein, are not
material and are largely imaginary, since the witness Mrs.
Tabiana confessed inability to remember all the details of the
transaction. Neither are we impressed by the argument that the
use of some Spanish terms in the codicil and testament
(like legado, partes iguales, plena propiedad) is proof that its
contents were not understood by the testatrix, it appearing in
evidence that those terms are of common use even in the
vernacular, and that the deceased was a woman of wide
business interests.
The most important variation noted by the contestants concerns
that signing of the certificate of acknowledgment (in Spanish)
appended to the Codicil in Visayan, Exhibit E. Unlike the
testament, this codicil was executed after the enactment of the
new Civil Code, and, therefore, had to be acknowledged before a
notary public (Art. 806). Now, the instrumental witnesses (who
happen to be the same ones who attested the will of 1950)
asserted that after the codicil had been signed by the testatrix
and the witnesses at the San Pablo Hospital, the same was
signed and sealed by notary public Gimotea on the same
occasion. On the other hand, Gimotea affirmed that he did not do
so, but brought the codicil to his office, and signed and sealed it
there. The variance does not necessarily imply conscious
perversion of truth on the part of the witnesses, but appears
rather due to a well-established phenomenon, the tendency of the
mind, in recalling past events, to substitute the usual and habitual
for what differs slightly from it (II Moore on Facts, p. 878; The
Ellen McGovern, 27 Fed. 868, 870).
At any rate, as observed by the Court below, whether or not the
notary signed the certification of acknowledgment in the presence
of the testatrix and the witnesses, does not affect the validity of
the codicil. Unlike the Code of 1889 (Art. 699), the new Civil Code
does not require that the signing of the testator, witnesses and
notary should be accomplished in one single act. A comparison of
Articles 805 and 806 of the new Civil Code reveals that while
testator and witnesses sign in the presence of each other, all that
is thereafter required is that "every will must be acknowledged
before a notary public by the testator and the witnesses" (Art.
806); i.e., that the latter should avow to the certifying officer the
authenticity of their signatures and the voluntariness of their
actions in executing the testamentary disposition. This was done
in the case before us. The subsequent signing and sealing by the
notary of his certification that the testament was duly
acknowledged by the participants therein is no part of the
acknowledgment itself nor of the testamentary act. Hence their
separate execution out of the presence of the testatrix and her
witnesses can not be said to violate the rule that testaments
should be completed without interruption (Andalis vs. Pulgueras,
59 Phil. 643), or, as the Roman maxim puts it, "uno codem die ac
tempore in eadem loco", and no reversible error was committed
by the Court in so holding. It is noteworthy that Article 806 of the
new Civil Code does not contain words requiring that the testator
and the witnesses should acknowledge the testament on the
same day or occasion that it was executed.
The decision admitting the will to probate is affirmed, with costs
against appellant.
G.R. No. 103554 May 28, 1993
TEODORO CANEDA, LORENZA CANEDA, TERESA CANEDA,
JUAN CABALLERO, AUREA CABALLERO, OSCAR LAROSA,
HELEN CABALLERO, SANTOS CABALLERO, PABLO
CABALLERO, VICTOR RAGA, MAURICIA RAGA, QUIRICA
RAGA, RUPERTO ABAPO, represented herein by his
Attorney-in-Fact, ARMSTICIA * ABAPO VELANO, and
CONSESO CANEDA, represented herein by his heirs, JESUS
CANEDA, NATIVIDAD CANEDA and ARTURO
CANEDA, petitioners,
vs.
HON. COURT OF APPEALS and WILLIAM CABRERA, as
Special Administrator of the Estate of Mateo
Caballero, respondents.
Palma, Palma & Associates for petitioners.
Emilio Lumontad, Jr. for private respondents.
REGALADO, J.:
Presented for resolution by this Court in the present petition for
review on certiorari is the issue of whether or not the attestation
clause contained in the last will and testament of the late Mateo
Caballero complies with the requirements of Article 805, in
relation to Article 809, of the Civil Code.
The records show that on December 5, 1978, Mateo Caballero, a
widower without any children and already in the twilight years of
his life, executed a last will and testament at his residence in
Talisay, Cebu before three attesting witnesses, namely, Cipriano
Labuca, Gregorio Cabando and Flaviano Toregosa. The said
testator was duly assisted by his lawyer, Atty. Emilio Lumontad,
and a notary public, Atty. Filoteo Manigos, in the preparation of
that last will.1 It was declared therein, among other things, that the
testator was leaving by way of legacies and devises his real and
personal properties to Presentacion Gaviola, Angel Abatayo,
Rogelio Abatayo, Isabelito Abatayo, Benoni G. Cabrera and
Marcosa Alcantara, all of whom do not appear to be related to the
testator.2
Four months later, or on April 4, 1979, Mateo Caballero himself
filed a petition docketed as Special Proceeding No. 3899-R
before Branch II of the then Court of First Instance of Cebu
seeking the probate of his last will and testament. The probate
court set the petition for hearing on August 20, 1979 but the same
and subsequent scheduled hearings were postponed for one
reason to another. On May 29, 1980, the testator passed away
before his petition could finally be heard by the probate court.3 On
February 25, 1981, Benoni Cabrera, on of the legatees named in
the will, sough his appointment as special administrator of the
testator's estate, the estimated value of which was P24,000.00,
and he was so appointed by the probate court in its order of
March 6, 1981.4
Thereafter, herein petitioners, claiming to be nephews and nieces
of the testator, instituted a second petition, entitled "In the Matter
of the Intestate Estate of Mateo Caballero" and docketed as
Special Proceeding No. 3965-R, before Branch IX of the
aforesaid Court of First Instance of Cebu. On October 18, 1982,
herein petitioners had their said petition intestate proceeding
consolidated with Special Proceeding No. 3899-R in Branch II of
the Court of First Instance of Cebu and opposed thereat the
probate of the Testator's will and the appointment of a special
administrator for his estate.5
Benoni Cabrera died on February 8, 1982 hence the probate
court, now known as Branch XV of the Regional Trial Court of
Cebu, appointed William Cabrera as special administrator on
June 21, 1983. Thereafter, on July 20, 1983, it issued an order for
the return of the records of Special Proceeding No. 3965-R to the
archives since the testate proceeding for the probate of the will
had to be heard and resolved first. On March 26, 1984 the case
was reraffled and eventually assigned to Branch XII of the
Regional Trial Court of Cebu where it remained until the
conclusion of the probate proceedings.6
In the course of the hearing in Special Proceeding No. 3899-R,
herein petitioners appeared as oppositors and objected to the
allowance of the testator's will on the ground that on the alleged
date of its execution, the testator was already in the poor state of
health such that he could not have possibly executed the same.
Petitioners likewise reiterated the issue as to the genuineness of
the signature of the testator therein.7
On the other hand, one of the attesting witnesses, Cipriano
Labuca, and the notary public Atty. Filoteo Manigos, testified that
the testator executed the will in question in their presence while
he was of sound and disposing mind and that, contrary to the
assertions of the oppositors, Mateo Caballero was in good health
and was not unduly influenced in any way in the execution of his
will. Labuca also testified that he and the other witnesses attested
and signed the will in the presence of the testator and of each
other. The other two attesting witnesses were not presented in
the probate hearing as the had died by then.8
On April 5, 1988, the probate court rendered a decision declaring
the will in question as the last will and testament of the late Mateo
Caballero, on the ratiocination that:
. . . The self-serving testimony of the two
witnesses of the oppositors cannot overcome the
positive testimonies of Atty. Filoteo Manigos and
Cipriano Labuca who clearly told the Court that
indeed Mateo Caballero executed the Last Will
and Testament now marked Exhibit "C" on
December 5, 1978. Moreover, the fact that it was
Mateo Caballero who initiated the probate of his
Will during his lifetime when he caused the filing
of the original petition now marked Exhibit "D"
clearly underscores the fact that this was indeed
his Last Will. At the start, counsel for the
oppositors manifested that he would want the
signature of Mateo Caballero in Exhibit "C"
examined by a handwriting expert of the NBI but it
would seem that despite their avowal and
intention for the examination of this signature of
Mateo Caballero in Exhibit "C", nothing came out
of it because they abandoned the idea and
instead presented Aurea Caballero and Helen
Caballero Campo as witnesses for the oppositors.
All told, it is the finding of this Court that Exhibit
"C" is the Last Will and Testament of Mateo
Caballero and that it was executed in accordance
with all the requisites of the law.9
Undaunted by the said judgment of the probate court, petitioners
elevated the case in the Court of Appeals in CA-G.R. CV No.
19669. They asserted therein that the will in question is null and
void for the reason that its attestation clause is fatally defective
since it fails to specifically state that the instrumental witnesses to
the will witnessed the testator signing the will in their presence
and that they also signed the will and all the pages thereof in the
presence of the testator and of one another.
On October 15, 1991, respondent court promulgated its
decision 10 affirming that of the trial court, and ruling that the
attestation clause in the last will of Mateo Caballero substantially
complies with Article 805 of the Civil Code, thus:
The question therefore is whether the attestation
clause in question may be considered as having
substantialy complied with the requirements of
Art. 805 of the Civil Code. What appears in the
attestation clause which the oppositors claim to be
defective is "we do certify that the testament was
read by him and the attestator, Mateo Caballero,
has published unto us the foregoing will consisting
of THREE PAGES, including the
acknowledgment, each page numbered
correlatively in letters of the upper part of each
 page, as his Last Will and Testament, and he has
signed the same and every page thereof, on the
spaces provided for his signature and on the left
hand margin in the presence of the said testator
and in the presence of each and all of
us (emphasis supplied).
To our thinking, this is sufficient compliance and
no evidence need be presented to indicate the
meaning that the said will was signed by the
testator and by them (the witnesses) in the
presence of all of them and of one another. Or as
the language of the law would have it that the
testator signed the will "in the presence of the
instrumental witnesses, and that the latter
witnessed and signed the will and all the pages
thereof in the presence of the testator and of one
another." If not completely or ideally perfect in
accordance with the wordings of Art. 805 but (sic)
the phrase as formulated is in substantial
compliance with the requirement of the law." 11
Petitioners moved for the reconsideration of the said ruling of
respondent court, but the same was denied in the latter's
resolution of January 14, 1992, 12 hence this appeal now before
us. Petitioners assert that respondent court has ruled upon said
issue in a manner not in accord with the law and settled
jurisprudence on the matter and are now questioning once more,
on the same ground as that raised before respondent court, the
validity of the attestation clause in the last will of Mateo Caballero.
We find the present petition to be meritorious, as we shall shortly
hereafter, after some prefatory observations which we feel should
be made in aid of the rationale for our resolution of the
controversy.
1. A will has been defined as a species of conveyance whereby a
person is permitted, with the formalities prescribed by law, to
control to a certain degree the disposition of his estate after his
death. 13 Under the Civil Code, there are two kinds of wills which a
testator may execute.14 the first kind is the ordinary or attested
will, the execution of which is governed by Articles 804 to 809 of
the Code. Article 805 requires that:
Art. 805. Every will, other than a holographic will,
must be subscribed at the end thereof by the
testator himself or by the testator's name written
by some other person in his presence, and by his
express direction, and attested and subscribed by
three or more credible witnesses in the presence
of the testator and of one another.
The testator or the person requested by him to
write his name and the instrumental witnesses of
the will, shall also sign, as aforesaid, each and
every page thereof, except the last, on the left
margin, and all the pages shall be numbered
correlatively in letters placed on the upper part of
each page.
The attestation should state the number of pages
used upon which the will is written, and the fact
that the testator signed the will and every page
thereof, or caused some other person to write his
name, under his express direction, in the
presence of the instrumental witnesses, and that
the latter witnessed and signed the will and all the
pages thereof in the presence of the testator and
of one another.
 If the attestation clause is in a language not
known to the witness, it shall be interpreted to
them.
In addition, the ordinary will must be acknowledged before a
notary public by a testator and the attesting witness. 15hence it is
likewise known as notarial will. Where the attestator is deaf or
deaf-mute, Article 807 requires that he must personally read the
will, if able to do so. Otherwise, he should designate two persons
who would read the will and communicate its contents to him in a
practicable manner. On the other hand, if the testator is blind, the
will should be read to him twice; once, by anyone of the
witnesses thereto, and then again, by the notary public before
whom it is acknowledged. 16
The other kind of will is the holographic will, which Article 810
defines as one that is entirely written, dated, and signed by the
testator himself. This kind of will, unlike the ordinary type,
requires no attestation by witnesses. A common requirement in
both kinds of will is that they should be in writing and must have
been executed in a language or dialect known to the testator. 17
However, in the case of an ordinary or attested will, its attestation
clause need not be written in a language or dialect known to the
testator since it does not form part of the testamentary
disposition. Furthermore, the language used in the attestation
clause likewise need not even be known to the attesting
witnesses. 18 The last paragraph of Article 805 merely requires
that, in such a case, the attestation clause shall be interpreted to
said witnesses.
An attestation clause refers to that part of an ordinary will
whereby the attesting witnesses certify that the instrument has
been executed before them and to the manner of the execution
the same. 19 It is a separate memorandum or record of the facts
surrounding the conduct of execution and once signed by the
witnesses, it gives affirmation to the fact that compliance with the
essential formalities required by law has been observed. 20 It is
made for the purpose of preserving in a permanent form a record
of the facts that attended the execution of a particular will, so that
in case of failure of the memory of the attesting witnesses, or
other casualty, such facts may still be proved. 21
Under the third paragraph of Article 805, such a clause, the
complete lack of which would result in the invalidity of the
will, 22 should state (1) the number of the pages used upon which
the will is written; (2) that the testator signed, or expressly caused
another to sign, the will and every page thereof in the presence of
the attesting witnesses; and (3) that the attesting witnesses
witnessed the signing by the testator of the will and all its
pages, and that saidwitnesses also signed the will and every
page thereof in the presence of the testator and of one another.
The purpose of the law in requiring the clause to state the number
of pages on which the will is written is to safeguard against
possible interpolation or omission of one or some of its pages and
to prevent any increase or decrease in the pages;23 whereas the
subscription of the signature of the testator and the attesting
witnesses is made for the purpose of authentication and
identification, and thus indicates that the will is the very same
instrument executed by the testator and attested to by the
witnesses.24
Further, by attesting and subscribing to the will, the witnesses
thereby declare the due execution of the will as embodied in the
attestation clause.25 The attestation clause, therefore, provide
strong legal guaranties for the due execution of a will and to
insure the authenticity thereof.26 As it appertains only to the
witnesses and not to the testator, it need be signed only by
them.27 Where it is left unsigned, it would result in the invalidation
of the will as it would be possible and easy to add the clause on a
subsequent occasion in the absence of the testator and its
witnesses.28
In its report, the Code Commission commented on the reasons of
the law for requiring the formalities to be followed in the execution
of wills, in the following manner:
The underlying and fundamental objectives
permeating the provisions on the law on wills in
this Project consists in the liberalization of the
manner of their execution with the end in view of
giving the testator more freedom in expressing his
last wishes, but with sufficient safeguards and
restrictions to prevent the commission of fraud
and the exercise of undue and improper pressure
and influence upon the testator.
This objective is in accord with the modern
tendency with respect to the formalities in the
execution of wills. . . .29
2. An examination of the last will and testament of Mateo
Caballero shows that it is comprised of three sheets all of which
have been numbered correlatively, with the left margin of each
page thereof bearing the respective signatures of the testator and
the three attesting witnesses. The part of the will containing the
testamentary dispositions is expressed in the Cebuano-Visayan
dialect and is signed at the foot thereof by the testator. The
attestation clause in question, on the other hand, is recited in the
English language and is likewise signed at the end thereof by the
three attesting witnesses hereto.30 Since it is the proverbial bone
of contention, we reproduce it again for facility of reference:
We, the undersigned attesting Witnesses, whose
Residences and postal addresses appear on the
Opposite of our respective names, we do hereby
certify that the Testament was read by him and
the testator, MATEO CABALLERO; has published
unto us the foregoing Will consisting of THREE
PAGES, including the Acknowledgment, each
page numbered correlatively in the letters on the
upper part of each page, as his Last Will and
Testament and he has the same and every page
thereof, on the spaces provided for his signature
and on the left hand margin, in the presence of
the said testator and in the presence of each and
all of us.
It will be noted that Article 805 requires that the witness should
both attest and subscribe to the will in the presence of the testator
and of one another. "Attestation" and "subscription" differ in
meaning. Attestation is the act of senses, while subscription is the
act of the hand. The former is mental, the latter mechanical, and
to attest a will is to know that it was published as such, and to
certify the facts required to constitute an actual and legal
publication; but to subscribe a paper published as a will is only to
write on the same paper the names of the witnesses, for the sole
purpose of identification.31
In Taboada vs. Rizal,32 we clarified that attestation consists in
witnessing the testator's execution of the will in order to see and
take note mentally that those things are done which the statute
requires for the execution of a will and that the signature of the
testator exists as a fact. On the other hand, subscription is the
signing of the witnesses' names upon the same paper for the
purpose of identification of such paper as the will which was
executed by the testator. As it involves a mental act, there would
be no means, therefore, of ascertaining by a physical examination
of the will whether the witnesses had indeed signed in the
presence of the testator and of each other unless this is
substantially expressed in the attestation.
It is contended by petitioners that the aforequoted attestation
clause, in contravention of the express requirements of the third
paragraph of Article 805 of the Civil Code for attestation clauses,
fails to specifically state the fact that the attesting witnesses the
testator sign the will and all its pages in their presence and that
they, the witnesses, likewise signed the will and every page
thereof in the presence of the testator and of each other. We
agree.
What is fairly apparent upon a careful reading of the attestation
clause herein assailed is the fact that while it recites that the
testator indeed signed the will and all its pages in the presence of
the three attesting witnesses and states as well the number of
pages that were used, the same does not expressly state therein
the circumstance that said witnesses subscribed their respective
signatures to the will in the presence of the testator and of each
other.
The phrase "and he has signed the same and every page thereof,
on the spaces provided for his signature and on the left hand
margin," obviously refers to the testator and not the instrumental
witnesses as it is immediately preceded by the words "as his Last
Will and Testament." On the other hand, although the words "in
the presence of the testator and in the presence of each and all of
us" may, at first blush, appear to likewise signify and refer to the
witnesses, it must, however, be interpreted as referring only to
the testator signing in the presence of the witnesses since said
phrase immediately follows the words "he has signed the same
and every page thereof, on the spaces provided for his signature
and on the left hand margin." What is then clearly lacking, in the
final logical analysis , is the statement that the witnesses signed
the will and every page thereof in the presence of the testator and
of one another.
It is our considered view that the absence of that statement
required by law is a fatal defect or imperfection which must
necessarily result in the disallowance of the will that is here
sought to be admitted to probate. Petitioners are correct in
pointing out that the aforestated defect in the attestation clause
obviously cannot be characterized as merely involving the form of
the will or the language used therein which would warrant the
application of the substantial compliance rule, as contemplated in
the pertinent provision thereon in the Civil Code, to wit:
Art. 809. In the absence of bad faith, forgery, or
fraud, or undue and improper pressure and
influence, defects and imperfections in the form of
attestation or in the language used therein shall
not render the will invalid if it is not proved that the
will was in fact executed and attested in
substantial compliance with all the requirements
of article 805" (Emphasis supplied.)
While it may be true that the attestation clause is indeed
subscribed at the end thereof and at the left margin of each page
by the three attesting witnesses, it certainly cannot be
conclusively inferred therefrom that the said witness affixed their
respective signatures in the presence of the testator and of each
other since, as petitioners correctly observed, the presence of
said signatures only establishes the fact that it was indeed
signed, but it does not prove that the attesting witnesses did
subscribe to the will in the presence of the testator and of each
other. The execution of a will is supposed to be one act so that
where the testator and the witnesses sign on various days or
occasions and in various combinations, the will cannot be
stamped with the imprimatur of effectivity.33
We believe that the further comment of former Justice J.B.L.
Reyes34 regarding Article 809, wherein he urged caution in the
application of the substantial compliance rule therein, is correct
and should be applied in the case under consideration, as well as
to future cases with similar questions:
. . . The rule must be limited to disregarding those
defects that can be supplied by an examination of
the will itself: whether all the pages are
consecutively numbered; whether the signatures
appear in each and every page; whether the
subscribing witnesses are three or the will was
notarized. All theses are facts that the will itself
can reveal, and defects or even omissions
concerning them in the attestation clause can be
safely disregarded. But the total number of
pages, and whether all persons required to sign
did so in the presence of each other must
substantially appear in the attestation clause,
being the only check against perjury in the
probate proceedings. (Emphasis ours.)
3. We stress once more that under Article 809, the defects and
imperfections must only be with respect to the form of the
attestation or the language employed therein. Such defects or
imperfections would not render a will invalid should it be proved
that the will was really executed and attested in compliance with
Article 805. In this regard, however, the manner of proving the
due execution and attestation has been held to be limited to
merely an examination of the will itself without resorting to
evidence aliunde, whether oral or written.
The foregoing considerations do not apply where the attestation
clause totally omits the fact that the attesting witnesses signed
each and every page of the will in the presence of the testator
and of each other.35 In such a situation, the defect is not only in
the form or language of the attestation clause but the total
absence of a specific element required by Article 805 to be
specifically stated in the attestation clause of a will. That is
precisely the defect complained of in the present case since there
is no plausible way by which we can read into the questioned
attestation clause statement, or an implication thereof, that the
attesting witness did actually bear witness to the signing by the
testator of the will and all of its pages and that said instrumental
witnesses also signed the will and every page thereof in the
presence of the testator and of one another.
Furthermore, the rule on substantial compliance in Article 809
cannot be revoked or relied on by respondents since it
presupposes that the defects in the attestation clause can be
cured or supplied by the text of the will or a consideration of
matters apparent therefrom which would provide the data not
expressed in the attestation clause or from which it may
necessarily be gleaned or clearly inferred that the acts not stated
in the omitted textual requirements were actually complied within
the execution of the will. In other words, defects must be
remedied by intrinsic evidence supplied by the will itself.
In the case at bar, contrarily, proof of the acts required to have
been performed by the attesting witnesses can be supplied by
only extrinsic evidence thereof, since an overall appreciation of
the contents of the will yields no basis whatsoever from with such
facts may be plausibly deduced. What private respondent insists
on are the testimonies of his witnesses alleging that they saw the
compliance with such requirements by the instrumental
witnesses, oblivious of the fact that he is thereby resorting to
extrinsic evidence to prove the same and would accordingly be
doing by the indirection what in law he cannot do directly.
4. Prior to the advent of the Civil Code on August 30, 1950, there
was a divergence of views as to which manner of interpretation
should be followed in resolving issues centering on compliance
with the legal formalities required in the execution of wills. The
formal requirements were at that time embodied primarily in
Section 618 of Act No. 190, the Code of Civil Procedure. Said
section was later amended by Act No. 2645, but the provisions
respecting said formalities found in Act. No. 190 and the
amendment thereto were practically reproduced and adopted in
the Civil Code.
One view advance the liberal or substantial compliance rule. This
was first laid down in the case of Abangan vs. Abangan,36 where it
was held that the object of the solemnities surrounding the
execution of wills is to close the door against bad faith and fraud,
to avoid substitution of wills and testaments and to guarantee
their truth and authenticity. Therefore, the laws on this subject
should be interpreted in such a way as to attain these primordial
ends. Nonetheless, it was also emphasized that 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, hence when an
interpretation already given assures such ends, any other
interpretation whatsoever that adds nothing but demands more
requisites entirely unnecessary, useless and frustrative of the
testator's last will, must be disregarded. The subsequent cases
of Avera vs. Garcia,37 Aldaba vs. Roque,38 Unson vs.
Abella,39 Pecson vs. Coronel,40 Fernandez vs. Vergel de Dios, et
al.,41and Nayve vs. Mojal, et al.42 all adhered to this position.
The other view which advocated the rule that statutes which
prescribe the formalities that should be observed in the execution
of wills are mandatory in nature and are to be strictly construed
was followed in the subsequent cases of In the Matter of the
Estate of Saguinsin,43 In re Will of Andrada,44 Uy Coque vs.
Sioca,45 In re Estate of Neumark, 46and Sano vs. Quintana.47
Gumban vs. Gorecho, et al.,48 provided the Court with the
occasion to clarify the seemingly conflicting decisions in the
aforementioned cases. In said case of Gumban, the attestation
clause had failed to state that the witnesses signed the will and
each and every page thereof on the left margin in the presence of
the testator. The will in question was disallowed, with these
reasons therefor:
In support of their argument on the assignment of
error above-mentioned, appellants rely on a series
of cases of this court beginning with (I)n the
Matter of the (E)state of Saguinsin ([1920], 41
Phil., 875), continuing with In re Will of Andrada
[1921], 42 Phil., 180), Uy Coque vs. Navas L.
Sioca [1922], 43 Phil., 405), and In re Estate of
Neumark ([1923], 46 Phil., 841), and ending
with Sano vs. Quintana ([1925], 48 Phil., 506).
Appellee counters with the citation of a series of
cases beginning with Abangan vs.
Abangan ([1919], 40 Phil., 476), continuing
through Aldaba vs. Roque ([1922], 43 Phil., 378),
and Fernandez vs. Vergel de Dios ([1924], 46
Phil., 922), and culminating in Nayve vs. Mojal
and Aguilar ([1924], 47 Phil., 152). In its last
analysis, our task is to contrast and, if possible,
conciliate the last two decisions cited by opposing
counsel, namely, those of Sano vs.
Quintana, supra, and Nayve vs. Mojal and
Aguilar, supra.
In the case of Sano vs. Quintana, supra, it was
decided that an attestation clause which does not
recite that the witnesses signed the will and each
and every page thereof on the left margin in the
presence of the testator is defective, and such a
defect annuls the will. The case of Uy Coque vs.
Sioca, supra, was cited, but the case of Nayve vs.
Mojal and Aguilar, supra, was not mentioned. In
contrast, is the decision in Nayve vs. Mojal and
Aguilar, supra, wherein it was held that the
attestation clause must estate the fact that the
testator and the witnesses reciprocally saw the
signing of the will, for such an act cannot be
proved by the mere exhibition of the will, if it is not
stated therein. It was also held that the fact that
the testator and the witnesses signed each and
every page of the will can be proved also by the
mere examination of the signatures appearing on
the document itself, and the omission to state
such evident facts does not invalidate the will.
It is a habit of courts to reaffirm or distinguish
previous cases; seldom do they admit
inconsistency in doctrine. Yet here, unless aided
impossible to reconcile the Mojal and Quintana
decisions. They are fundamentally at variance. If
we rely on one, we affirm. If we rely on the other,
we reverse.
In resolving this puzzling question of authority,
three outstanding points may be mentioned. In the
first place, the Mojal, decision was concurred in by
only four members of the court, less than a
majority, with two strong dissenting opinions; the
Quintana decision was concurred in by seven
members of the court, a clear majority, with one
formal dissent. In the second place, the Mojal
decision was promulgated in December, 1924,
while the Quintana decision was promulgated in
December, 1925; the Quintana decision was thus
subsequent in point of time. And in the third place,
the Quintana decision is believed more nearly to
conform to the applicable provisions of the law.
The right to dispose of property by will is governed
entirely by statute. The law of the case is here
found in section 61 of the Code of Civil Procedure
as amended by Act No. 2645, and in section 634
of the same Code, as unamended. It is in part
provided in section 61, as amended that "No will .
. . shall be valid . . . unless . . .." It is further
provided in the same section that "The
attestation shall state the number of sheets or
pages used, upon which the will is written, and the
fact that the testator signed the will and every
page thereof, or caused some other person to
write his name, under his express direction, in the
presence of three witnesses, and the latter
witnessed and signed the will and all pages
thereof in the presence of the testator and of each
other." Codal section 634 provides that "The
will shall be disallowed in either of the following
case: 1. If not executed and attested as in this Act
provided." The law not alone carefully makes use
of the imperative, but cautiously goes further and
makes use of the negative, to enforce legislative
intention. It is not within the province of the courts
to disregard the legislative purpose so
emphatically and clearly expressed.
We adopt and reaffirm the decision in the case
of Sano vs. Quintana, supra, and, to the extent
necessary, modify the decision in the case
of Nayve vs. Mojal and Aguilar, supra. (Emphases
in the original text).
But after the Gumban clarificatory pronouncement, there were
decisions of the Court that once more appeared to revive the
seeming diversity of views that was earlier threshed out therein.
The cases of Quinto vs. Morata,49Rodriguez vs.
Alcala,50 Enchevarria vs. Sarmiento,51 and Testate Estate of
Toray52 went the way of the ruling as restated in Gumban. But De
Gala vs. Gonzales, et al.,53 Rey vs. Cartagena,54 De Ticson vs. De
Gorostiza,55Sebastian vs. Panganiban,56 Rodriguez vs. Yap,57 Grey
vs. Fabia,58 Leynez vs. Leynez,59 Martir vs. Martir,60 Alcala vs. De
Villa,61 Sabado vs.
Fernandez,62 Mendoza vs. Pilapil, 63 and Lopez vs. Liboro,64 veered
away from the strict interpretation rule and established a trend
toward an application of the liberal view.
The Code Commission, cognizant of such a conflicting welter of
views and of the undeniable inclination towards a liberal
construction, recommended the codification of the substantial
compliance rule, as it believed this rule to be in accord with the
modern tendency to give a liberal approach to the interpretation
of wills. Said rule thus became what is now Article 809 of the Civil
Code, with this explanation of the Code Commission:
The present law provides for only one form of
executing a will, and that is, in accordance with
the formalities prescribed by Section 618 of the
Code of Civil Procedure as amended by Act No.
2645. The Supreme Court of the Philippines had
previously upheld the strict compliance with the
legal formalities and had even said that the
provisions of Section 618 of the Code of Civil
Procedure, as amended regarding the contents of
the attestation clause were mandatory, and non-
compliance therewith invalidated the will (Uy
Coque vs. Sioca, 43 Phil. 405). These decisions
necessarily restrained the freedom of the testator
in disposing of his property.
However, in recent years the Supreme Court
changed its attitude and has become more liberal
in the interpretation of the formalities in the
execution of wills. This liberal view is enunciated
in the cases of Rodriguez vs. Yap, G.R. No.
45924, May 18, 1939; Leynez vs. Leynez, G.R.
No. 46097, October 18, 1939; Martir vs. Martir,
G.R. No. 46995, June 21, 1940; and Alcala vs.
Villa, G.R. No. 47351, April 18, 1941.
In the above mentioned decisions of our Supreme
Court, it has practically gone back to the original
provisions of Section 618 of the Code of Civil
Procedure before its amendment by Act No. 2645
in the year 1916. To turn this attitude into a
legislative declaration and to attain the main
objective of the proposed Code in the
liberalization of the manner of executing wills,
article 829 of the Project is recommended, which
reads:
"Art. 829. In the absence of bad
faith, forgery, or fraud, or undue
and improper pressure and
influence, defects and
imperfections in the form of
attestation or in the language used
therein shall not render the will
invalid if it is proved that the will
was in fact executed and attested
in substantial compliance with all
the requirements of article 829."65
The so-called liberal rule, the Court said in Gil vs.
Murciano,66 "does not offer any puzzle or difficulty, nor does it
open the door to serious consequences. The later decisions do
tell us when and where to stop; they draw the dividing line with
precision. They do not allow evidence aliunde to fill a void in any
part of the document or supply missing details that should appear
in the will itself. They only permit a probe into the will, an
exploration into its confines, to ascertain its meaning or to
determine the existence or absence of the requisite formalities of
law. This clear, sharp limitation eliminates uncertainty and ought
to banish any fear of dire results."
It may thus be stated that the rule, as it now stands, is that
omissions which can be supplied by an examination of the will
itself, without the need of resorting to extrinsic evidence, will not
be fatal and, correspondingly, would not obstruct the allowance to
probate of the will being assailed. However, those omissions
which cannot be supplied except by evidence aliunde would
result in the invalidation of the attestation clause and ultimately, of
the will itself.67
WHEREFORE, the petition is hereby GRANTED and the
impugned decision of respondent court is hereby REVERSED
and SET ASIDE. The court a quo is accordingly directed to
forthwith DISMISS its Special Proceeding No. 3899-R (Petition for
the Probate of the Last Will and Testament of Mateo Caballero)
and to REVIVE Special Proceeding No. 3965-R (In the matter of
the Intestate Estate of Mateo Caballero) as an active case and
thereafter duly proceed with the settlement of the estate of the
said decedent.
SO ORDERED.
G.R. No. L-36033 November 5, 1982
IN THE MATTER OF THE PETITION FOR THE PROBATE OF
THE WILL OF DOROTEA PEREZ, (deceased): APOLONIO
TABOADA, petitioner,
vs.
HON. AVELINO S. ROSAL, as Judge of Court of First
Instance of Southern Leyte, (Branch III, Maasin), respondent.
Erasmo M. Diola counsel for petition.
Hon. Avelino S. Rosal in his own behalf.
GUTIERREZ, JR. J.:
This is a petition for review of the orders issued by the Court of
First Instance of Southern Leyte, Branch III, in Special
Proceedings No. R-1713, entitled "In the Matter of the Petition for
Probate of the Will of Dorotea Perez, Deceased; Apolonio
Taboada, Petitioner", which denied the probate of the will, the
motion for reconsideration and the motion for appointment of a
special administrator.
In the petition for probate filed with the respondent court, the
petitioner attached the alleged last will and testament of the late
Dorotea Perez. Written in the Cebuano-Visayan dialect, the will
consists of two pages. The first page contains the entire
testamentary dispositions and is signed at the end or bottom of
the page by the testatrix alone and at the left hand margin by the
three (3) instrumental witnesses. The second page which
contains the attestation clause and the acknowledgment is signed
at the end of the attestation clause by the three (3) attesting
witnesses and at the left hand margin by the testatrix.
Since no opposition was filed after the petitioner's compliance
with the requirement of publication, the trial court commissioned
the branch clerk of court to receive the petitioner's evidence.
Accordingly, the petitioner submitted his evidence and presented
Vicente Timkang, one of the subscribing witnesses to the will,
who testified on its genuineness and due execution.
The trial court, thru then Presiding Judge Ramon C. Pamatian
issued the questioned order denying the probate of the will of
Dorotea Perez for want of a formality in its execution. In the same
order, the petitioner was also required to submit the names of the
intestate heirs with their corresponding addresses so that they
could be properly notified and could intervene in the summary
settlement of the estate.
Instead of complying with the order of the trial court, the petitioner
filed a manifestation and/or motion, ex partepraying for a thirty-
day period within which to deliberate on any step to be taken as a
result of the disallowance of the will. He also asked that the ten-
day period required by the court to submit the names of intestate
heirs with their addresses be held in abeyance.
The petitioner filed a motion for reconsideration of the order
denying the probate of the will. However, the motion together with
the previous manifestation and/or motion could not be acted upon
by the Honorable Ramon C. Pamatian due to his transfer to his
new station at Pasig, Rizal. The said motions or incidents were
still pending resolution when respondent Judge Avelino S. Rosal
assumed the position of presiding judge of the respondent court.
Meanwhile, the petitioner filed a motion for the appointment of
special administrator.
Subsequently, the new Judge denied the motion for
reconsideration as well as the manifestation and/or motion
filed ex parte. In the same order of denial, the motion for the
appointment of special administrator was likewise denied
because of the petitioner's failure to comply with the order
requiring him to submit the names of' the intestate heirs and their
addresses.
The petitioner decided to file the present petition.
For the validity of a formal notarial will, does Article 805 of the
Civil Code require that the testatrix and all the three instrumental
and attesting witnesses sign at the end of the will and in the
presence of the testatrix and of one another?
Article 805 of the Civil Code provides:
Every will, other than a holographic will, must be
subscribed at the end thereof by the testator
himself or by the testator's name written by some
other person in his presence, and by his express
direction, and attested and subscribed by three or
more credible witnesses in the presence of the
testator and of one another.
The testator or the person requested by him to
write his name and the instrumental witnesses of
the will, shall also sign, as aforesaid, each and
every page thereof, except the last, on the left
margin, and all the pages shall be numbered
 correlatively in letters placed on the upper part of
each page.
The attestation shall state the number of pages
used upon which the will is written, and the fact
that the testator signed the will and every page
thereof, or caused some other person to write his
name, under his express direction, in the
presence of the instrumental witnesses, and that
the lacier witnesses and signed the will and the
pages thereof in the presence of the testator and
of one another.
If the attestation clause is in a language not
known to the witnesses, it shall be interpreted to
the witnesses, it shall be interpreted to them.
The respondent Judge interprets the above-quoted provision of
law to require that, for a notarial will to be valid, it is not enough
that only the testatrix signs at the "end" but an the three
subscribing witnesses must also sign at the same place or at the
end, in the presence of the testatrix and of one another because
the attesting witnesses to a will attest not merely the will itself but
also the signature of the testator. It is not sufficient compliance to
sign the page, where the end of the will is found, at the left hand
margin of that page.
On the other hand, the petitioner maintains that Article 805 of the
Civil Code does not make it a condition precedent or a matter of
absolute necessity for the extrinsic validity of the wig that the
signatures of the subscribing witnesses should be specifically
located at the end of the wig after the signature of the testatrix.
He contends that it would be absurd that the legislature intended
to place so heavy an import on the space or particular location
where the signatures are to be found as long as this space or
particular location wherein the signatures are found is consistent
with good faith and the honest frailties of human nature.
We find the petition meritorious.
Undoubtedly, under Article 805 of the Civil Code, the will must be
subscribed or signed at its end by the testator himself or by the
testator's name written by another person in his presence, and by
his express direction, and attested and subscribed by three or
more credible witnesses in the presence of the testator and of
one another.
It must be noted that the law uses the
terms attested and subscribed Attestation consists in witnessing
the testator's execution of the will in order to see and take note
mentally that those things are, done which the statute requires for
the execution of a will and that the signature of the testator exists
as a fact. On the other hand, subscription is the signing of the
witnesses' names upon the same paper for the purpose of
Identification of such paper as the will which was executed by the
testator. (Ragsdale v. Hill, 269 SW 2d 911).
Insofar as the requirement of subscription is concerned, it is our
considered view that the will in this case was subscribed in a
manner which fully satisfies the purpose of Identification.
The signatures of the instrumental witnesses on the left margin of
the first page of the will attested not only to the genuineness of
the signature of the testatrix but also the due execution of the will
as embodied in the attestation clause.
While perfection in the drafting of a will may be desirable,
unsubstantial departure from the usual forms should be ignored,
especially where the authenticity of the will is not assailed.
(Gonzales v. Gonzales, 90 Phil. 444, 449).
The law is to be liberally construed, "the underlying and
fundamental objective permeating the provisions on the law on
wills in this project consists in the liberalization of the manner of
their execution with the end in view of giving the testator more
freedom in expressing his last wishes but with sufficient
safeguards and restrictions to prevent the commission of fraud
and the exercise of undue and improper pressure and influence
upon the testator. This objective is in accord with the modern
tendency in respect to the formalities in the execution of a will"
(Report of the Code commission, p. 103).
Parenthetically, Judge Ramon C. Pamatian stated in his
questioned order that were not for the defect in the place of
signatures of the witnesses, he would have found the testimony
sufficient to establish the validity of the will.
The objects of attestation and of subscription were fully met and
satisfied in the present case when the instrumental witnesses
signed at the left margin of the sole page which contains all the
testamentary dispositions, especially so when the will was
properly Identified by subscribing witness Vicente Timkang to be
the same will executed by the testatrix. There was no question of
fraud or substitution behind the questioned order.
We have examined the will in question and noticed that the
attestation clause failed to state the number of pages used in
writing the will. This would have been a fatal defect were it not for
the fact that, in this case, it is discernible from the entire wig that it
is really and actually composed of only two pages duly signed by
the testatrix and her instrumental witnesses. As earlier stated, the
first page which contains the entirety of the testamentary
dispositions is signed by the testatrix at the end or at the bottom
while the instrumental witnesses signed at the left margin. The
other page which is marked as "Pagina dos" comprises the
attestation clause and the acknowledgment. The
acknowledgment itself states that "This Last Will and Testament
consists of two pages including this page".
In Singson v. Florentino, et al. (92 Phil. 161, 164), this Court
made the following observations with respect to the purpose of
the requirement that the attestation clause must state the number
of pages used:
The law referred to is article 618 of the Code of
Civil Procedure, as amended by Act No. 2645,
which requires that the attestation clause shall
state the number of pages or sheets upon which
the win is written, which requirement has been
held to be mandatory as an effective safeguard
against the possibility of interpolation or omission
of some of the pages of the will to the prejudice of
the heirs to whom the property is intended to be
bequeathed (In re will of Andrada, 42 Phil., 180;
Uy Coque vs. Navas L. Sioca, 43 Phil. 405;
Gumban vs. Gorecho, 50 Phil. 30; Quinto vs.
Morata, 54 Phil. 481; Echevarria vs. Sarmiento,
66 Phil. 611). The ratio decidendi of these cases
seems to be that the attestation clause must
contain a statement of the number of sheets or
pages composing the will and that if this is
missing or is omitted, it will have the effect of
invalidating the will if the deficiency cannot be
supplied, not by evidence aliunde, but by a
consideration or examination of the will itself. But
here the situation is different. While the attestation
clause does not state the number of sheets or
pages upon which the will is written, however, the
 last part of the body of the will contains a
statement that it is composed of eight pages,
which circumstance in our opinion takes this case
out of the rigid rule of construction and places it
within the realm of similar cases where a broad
and more liberal view has been adopted to
prevent the will of the testator from being defeated
by purely technical considerations.
Icasiano v. Icasiano (11 SCRA 422, 429) has the following ruling
which applies a similar liberal approach:
... Impossibility of substitution of this page is
assured not only (sic) the fact that the testatrix
and two other witnesses did sign the defective
page, but also by its bearing the coincident imprint
of the seal of the notary public before whom the
testament was ratified by testatrix and all three
witnesses. The law should not be so strictly and
literally interpreted as to penalize the testatrix on
account of the inadvertence of a single witness
over whose conduct she had no control where the
purpose of the law to guarantee the Identity of the
testament and its component pages is sufficiently
attained, no intentional or deliberate deviation
existed, and the evidence on record attests to the
fun observance of the statutory requisites.
Otherwise, as stated in Vda. de Gil. Vs. Murciano,
49 Off. Gaz. 1459, at 1479 (decision on
reconsideration) 'witnesses may sabotage the will
by muddling or bungling it or the attestation
clause.
WHEREFORE, the present petition is hereby granted. The orders
of the respondent court which denied the probate of tile will, the
motion for reconsideration of the denial of probate, and the
motion for appointment of a special administrator are set aside.
The respondent court is ordered to allow the probate of the wig
and to conduct further proceedings in accordance with this
decision. No pronouncement on costs.
SO ORDERED.
G.R. No. 74695 September 14, 1993
In the Matter of the Probate of the Last Will and Testament of
the Deceased Brigido Alvarado, CESAR
ALVARADO, petitioner,
vs.
HON. RAMON G. GAVIOLA, JR., Presiding Justice, HON. MA.
ROSARIO QUETULIO LOSA and HON. LEONOR INES
LUCIANO, Associate Justices, Intermediate Appellate Court,
First Division (Civil Cases), and BAYANI MA.
RINO, respondents.
Vicente R. Redor for petitioner.
Bayani Ma. Rino for and in his own behalf.
BELLOSILLO, J.:
Before us is an appeal from the Decision dated 11 April 19861 of
the First Civil Cases Division of the then Intermediate Appellate
Court, now Court of Appeals, which affirmed the Order dated 27
June 19832 of the Regional Trial Court of Sta. Cruz, Laguna,
admitting to probate the last will and testament3 with codicil4 of the
late Brigido Alvarado.
On 5 November 1977, the 79-year old Brigido Alvarado executed
a notarial will entitled "Huling Habilin" wherein he disinherited an
illegitimate son (petitioner) and expressly revoked a previously
executed holographic will at the time awaiting probate before
Branch 4 of the Regional Trial Court of sta. Cruz, Laguna.
As testified to by the three instrumental witnesses, the notary
public and by private respondent who were present at the
execution, the testator did not read the final draft of the will
himself. Instead, private respondent, as the lawyer who drafted
the eight-paged document, read the same aloud in the presence
of the testator, the three instrumental witnesses and the notary
public. The latter four followed the reading with their own
respective copies previously furnished them.
Meanwhile, Brigido's holographic will was subsequently admitted
to probate on 9 December 1977. On the 29th day of the same
month, a codicil entitled "Kasulatan ng Pagbabago sa Ilang
Pagpapasiya na Nasasaad sa Huling Habilin na may Petsa
Nobiembre 5, 1977 ni Brigido Alvarado" was executed changing
some dispositions in the notarial will to generate cash for the
testator's eye operation. Brigido was then suffering from
glaucoma. But the disinheritance and revocatory clauses were
unchanged. As in the case of the notarial will, the testator did not
personally read the final draft of the codicil. Instead, it was private
respondent who read it aloud in his presence and in the presence
of the three instrumental witnesses (same as those of the notarial
will) and the notary public who followed the reading using their
own copies.
A petition for the probate of the notarial will and codicil was filed
upon the testator's death on 3 January 1979 by private
respondent as executor with the Court of First Instance, now
Regional Trial Court, of Siniloan, Laguna.5Petitioner, in turn, filed
an Opposition on the following grounds: that the will sought to be
probated was not executed and attested as required by law; that
the testator was insane or otherwise mentally incapacitated to
make a will at the time of its execution due to senility and old age;
that the will was executed under duress, or influence of fear and
threats; that it was procured by undue and improper pressure and
influence on the part of the beneficiary who stands to get the
lion's share of the testator's estate; and lastly, that the signature
of the testator was procured by fraud or trick.
When the oppositor (petitioner) failed to substantiate the grounds
relied upon in the Opposition, a Probate Order was issued on 27
June 1983 from which an appeal was made to respondent court.
The main thrust of the appeal was that the deceased was blind
within the meaning of the law at the time his "Huling Habilin" and
the codicil attached thereto was executed; that since the reading
required by Art. 808 of the Civil Code was admittedly not
complied with, probate of the deceased's last will and codicil
should have been denied.
On 11 April 1986, the Court of Appeals rendered the decision
under review with the following findings: that Brigido Alvarado
was not blind at the time his last will and codicil were executed;
that assuming his blindness, the reading requirement of Art. 808
was substantially complied with when both documents were read
aloud to the testator with each of the three instrumental witnesses
and the notary public following the reading with their respective
copies of the instruments. The appellate court then concluded
that although Art. 808 was not followed to the letter, there was
substantial compliance since its purpose of making known to the
testator the contents of the drafted will was served.
The issues now before us can be stated thus: Was Brigido
Alvarado blind for purpose of Art, 808 at the time his "Huling
Habilin" and its codicil were executed? If so, was the double-
reading requirement of said article complied with?
Regarding the first issue, there is no dispute on the following
facts: Brigido Alvarado was not totally blind at the time the will
and codicil were executed. However, his vision on both eyes was
only of "counting fingers at three (3) feet" by reason of the
glaucoma which he had been suffering from for several years and
even prior to his first consultation with an eye specialist on
14 December 1977.
The point of dispute is whether the foregoing circumstances
would qualify Brigido as a "blind" testator under Art. 808 which
reads:
Art. 808. If the testator is blind, the will shall be
read to him twice; once, by one of the subscribing
witnesses, and again, by the notary public before
whom the will is acknowledged.
Petitioner contends that although his father was not totally blind
when the will and codicil were executed, he can be so considered
within the scope of the term as it is used in Art. 808. To support
his stand, petitioner presented before the trial court a medical
certificate issued by Dr. Salvador R. Salceda, Director of the
Institute of Opthalmology (Philippine Eye Research Institute),6 the
contents of which were interpreted in layman's terms by Dr.
Ruperto Roasa, whose expertise was admitted by private
respondent.7 Dr. Roasa explained that although the testator could
visualize fingers at three (3) feet, he could no longer read either
printed or handwritten matters as of 14 December 1977, the day
of his first consultation.8
On the other hand, the Court of Appeals, contrary to the medical
testimony, held that the testator could still read on the day the will
and the codicil were executed but chose not to do so because of
"poor eyesight."9 Since the testator was still capable of reading at
that time, the court a quo concluded that Art. 808 need not be
complied with.
We agree with petitioner in this respect.
Regardless of respondent's staunch contention that the testator
was still capable of reading at the time his will and codicil were
prepared, the fact remains and this was testified to by his
witnesses, that Brigido did not do so because of his
"poor," 10 "defective," 11 or "blurred"12 vision making it necessary for
private respondent to do the actual reading for him.
The following pronouncement in Garcia vs. Vasquez 13 provides
an insight into the scope of the term "blindness" as used in Art.
808, to wit:
The rationale behind the requirement of reading
the will to the testator if he is blind or incapable of
reading the will himself (as when he is illiterate), is
to make the provisions thereof known to him, so
that he may be able to object if they are not in
accordance with his wishes . . .
Clear from the foregoing is that Art. 808 applies not only to blind
testators but also to those who, for one reason or another, are
"incapable of reading the(ir) will(s)." Since Brigido Alvarado was
incapable of reading the final drafts of his will and codicil on the
separate occasions of their execution due to his "poor,"
"defective," or "blurred" vision, there can be no other course for
us but to conclude that Brigido Alvarado comes within the scope
of the term "blind" as it is used in Art. 808. Unless the contents
were read to him, he had no way of ascertaining whether or not
the lawyer who drafted the will and codicil did so confortably with
his instructions. Hence, to consider his will as validly executed
and entitled to probate, it is essential that we ascertain whether
Art. 808 had been complied with.
Article 808 requires that in case of testators like Brigido Alvarado,
the will shall be read twice; once, by one of the instrumental
witnesses and, again, by the notary public before whom the will
was acknowledged. The purpose is to make known to the
incapacitated testator the contents of the document before
signing and to give him an opportunity to object if anything is
contrary to his instructions.
That Art. 808 was not followed strictly is beyond cavil. Instead of
the notary public and an instrumental witness, it was the lawyer
(private respondent) who drafted the eight-paged will and the five-
paged codicil who read the same aloud to the testator, and read
them only once, not twice as Art. 808 requires.
Private respondent however insists that there was substantial
compliance and that the single reading suffices for purposes of
the law. On the other hand, petitioner maintains that the only valid
compliance or compliance to the letter and since it is admitted
that neither the notary public nor an instrumental witness read the
contents of the will and codicil to Brigido, probate of the latter's
will and codicil should have been disallowed.
We sustain private respondent's stand and necessarily, the
petition must be denied.
This Court has held in a number of occasions that substantial
compliance is acceptable where the purpose of the law has been
satisfied, the reason being that the solemnities surrounding the
execution of wills are intended to protect the testator from all
kinds of fraud and trickery but are never intended to be so rigid
and inflexible as to destroy the testamentary privilege. 14
In the case at bar, private respondent read the testator's will and
codicil aloud in the presence of the testator, his three instrumental
witnesses, and the notary public. Prior and subsequent thereto,
the testator affirmed, upon being asked, that the contents read
corresponded with his instructions. Only then did the signing and
acknowledgement take place. There is no evidence, and
petitioner does not so allege, that the contents of the will and
codicil were not sufficiently made known and communicated to
the testator. On the contrary, with respect to the "Huling Habilin,"
the day of the execution was not the first time that Brigido had
affirmed the truth and authenticity of the contents of the draft. The
uncontradicted testimony of Atty. Rino is that Brigido Alvarado
already acknowledged that the will was drafted in accordance
with his expressed wishes even prior to 5 November 1977 when
Atty. Rino went to the testator's residence precisely for the
purpose of securing his conformity to the draft. 15
Moreover, it was not only Atty. Rino who read the documents on
5 November and 29 December 1977. The notary public and the
three instrumental witnesses likewise read the will and codicil,
albeit silently. Afterwards, Atty. Nonia de la Pena (the notary
public) and Dr. Crescente O. Evidente (one of the three
instrumental witnesses and the testator's physician) asked the
testator whether the contents of the document were of his own
free will. Brigido answered in the affirmative. 16 With four persons
following the reading word for word with their own copies, it can
be safely concluded that the testator was reasonably assured that
what was read to him (those which he affirmed were in
accordance with his instructions), were the terms actually
appearing on the typewritten documents. This is especially true
when we consider the fact that the three instrumental witnesses
were persons known to the testator, one being his physician (Dr.
Evidente) and another (Potenciano C. Ranieses) being known to
him since childhood.
The spirit behind the law was served though the letter was not.
Although there should be strict compliance with the substantial
requirements of the law in order to insure the authenticity of the
will, the formal imperfections should be brushed aside when they
do not affect its purpose and which, when taken into account,
may only defeat the testator's will. 17
As a final word to convince petitioner of the propriety of the trial
court's Probate Order and its affirmance by the Court of Appeals,
we quote the following pronouncement in Abangan
v. Abangan, 18 to wit:
The object of the solemnities surrounding the
execution of wills is to close the door against bad
faith and fraud, to avoid the substitution of wills
and testaments and to guaranty their truth and
authenticity. Therefore the laws on the subject
should be interpreted in such a way as to attain
these primordial ends. But, on the other hand,
also one must not lose sight of the fact that it is
not the object of the law to restrain and curtail the
exercise of the right to make a will. So when an
interpretation already given assures such ends,
any other interpretation whatsoever, that adds
nothing but demands more requisites entirely
unnecessary, useless and frustrative of the
testator's will, must be disregarded(emphasis
supplied).
Brigido Alvarado had expressed his last wishes in clear and
unmistakable terms in his "Huling Habilin" and the codicil
attached thereto. We are unwilling to cast these aside fro the
mere reason that a legal requirement intended for his protection
was not followed strictly when such compliance had been
rendered unnecessary by the fact that the purpose of the law, i.e.,
to make known to the incapacitated testator the contents of the
draft of his will, had already been accomplished. To reiterate,
substantial compliance suffices where the purpose has been
served.
WHEREFORE, the petition is DENIED and the assailed Decision
of respondent Court of Appeals dated 11 April 1986 is
AFFIRMED. Considering the length of time that this case has
remained pending, this decision is immediately executory. Costs
against petitioner.
SO ORDERED.
EN BANC
[G.R. No. L-26615. April 30, 1970.]
REV. FATHER LUCIO V. GARCIA, ANTONIO JESUS DE
PRAGA, MARIA NATIVIDAD DE JESUS AND DR. JAIME
ROSARIO, Petitioners, v. HON. CONRADO M. VASQUEZ, as
Judge of the Court of First Instance of Manila, Branch and
CONSUELO GONZALES VDA. DE PRECILLA, Respondents.
[G.R. No. L-26884. April 30, 1970.]
REV. FATHER LUCIO V. GARCIA, ANTONIO JESUS DE
PRAGA, MARIA NATIVIDAD DE JESUS AND DR. JAIME
ROSARIO, Petitioners, v. HON. CONRADO M. VASQUEZ, as
Judge of the Court of First Instance of Manila, Branch V,
REGISTER OF DEEDS OF MANILA, and CONSUELO
GONZALES VDA. DE PRECILLA, Respondents.
[G.R. No. L-27200. April 30, 1970.]
TESTATE ESTATE OF GLICERIA A. DEL ROSARIO, deceased
CONSUELO S. GONZALES VDA. DE PRECILLA, petitioner
administratrix, v. SEVERINA NARCISO, ROSA NARCISO,
JOSEFINA NARCISO, VICENTE MAURICIO, DELFIN
MAURICIO, REMEDIOS NARCISO, ENCARNACION,
NARCISO, MARIA NARCISO, EDUARDO NARCISO, FR.
LUCIO V. GARCIA, ANTONIO JESUS DE PRAGA, MARIA
NATIVIDAD DE JESUS, DR. JAIME DEL ROSARIO, ET AL.,
NATIVIDAD DEL ROSARIO-SARMIENTO and PASCUALA
NARCISO-MANAHAN, Oppositors-Appellants.
Antonio Enrile Inton for petitioner Rev. Father Lucio V.
Garcia.
Pedro V. Garcia for petitioner Antonio Jesus de Praga, Et. Al.
Leandro Sevilla & Ramon C. Aquino and Melquiades M.
Virata, Jr. for respondent Consuelo S. Gonzales Vda. de
Precilla.
Lorenzo C. Gella for respondent Register of Deeds of Manila.
Leandro Sevilla & Ramon C. Aquino for petitioner
administratrix.
Castro, Makalintal & Associates for oppositors-appellants
Encarnacion Narciso, Et. Al.
Pedro Garcia for oppositors-appellants Dr. Jaime Rosario,
Et. Al.
Antonio Enrile Inton for oppositors-appellants Fr. Lucio V.
Garcia and Antonio Jesus de Praga.
Salonga, Ordoñez, Yap, Sicat & Associates for oppositors-
appellants Severina Narciso, Et. Al.
George G. Arbolario and Sixto R. Reyes & Vicente Redor for
oppositors-appellants Natividad del Rosario Sarmiento, Et.
Al.
SYLLABUS
1. CIVIL LAW; SUCCESSION, WILLS; PROBATE OF WILLS;
GROUND FOR DISALLOWANCE; TESTATRIX’S DEFECTIVE
EYESIGHT AS UNABLING HER TO READ THE PROVISIONS
OF LATER WILL.— The declarations in court of the
opthalmologist as to the condition of the testatrix’s eyesight fully
establish the fact that her vision remained mainly for viewing
distant objects and not for reading print; that she was, at the time
of the execution of the second will on December 29, 1960,
incapable of reading and could not have read the provisions of
the will supposedly signed by her.
2. ID.; ID.; ID.; ID.; ID.; IRREGULARITIES IN THE EXECUTION
OF THE WILL; CASE AT BAR.— Upon its face, the testamentary
provisions, the attestation clause and acknowledgment were
crammed together into a single sheet of paper, apparently to save
on space. Plainly, the testament was not prepared with any
regard for the defective vision of Dña. Gliceria, the typographical
errors remained uncorrected thereby indicating that the execution
thereof must have been characterized by haste. It is difficult to
understand that so important a document containing the final
disposition of one’s worldly possessions should be embodied in
an informal and untidy written instrument; or that the glaring
spelling errors should have escaped her notice if she had actually
retained the ability to read the purported will and had done so.
3. ID.; ID.; ID.; EXECUTION OF WILLS; REQUISITES FOR
VALIDITY; ART. 808, NEW CIVIL CODE — READING OF THE
WILL TWICE TO A BLIND TESTATOR; PURPOSE.— The
rationale behind the requirement of reading the will to the testator
if he is blind or incapable of reading the will himself is to make the
provisions thereof known to him, so that he may be able to object
if they are not in accordance with his wishes.
4. ID.; ID.; ID.; ID.; ID.; ID.; NOT COMPLIED WITH IN INSTANT
CASE.— Where as in the 1960 will there is nothing in the record
to show that the requisites of Art. 808 of the Civil Code of the
Philippines that "if the testator is blind, the will shall be read to
him twice," have not been complied with, the said 1960 will suffer
from infirmity that affects its due execution.
5. REMEDIAL LAW; SETTLEMENT OF ESTATE OF DECEASED
PERSONS; ADMINISTRATORS; GROUNDS FOR REMOVAL;
ACQUISITION OF INTEREST ADVERSE TO THAT OF THE
ESTATE MAKES THE ADMINISTRATOR UNSUITABLE TO
DISCHARGE THE TRUST; CASE AT BAR.— Considering that
the alleged deed of sale was executed when Gliceria del Rosario
was already practically blind and that the consideration given
seems unconscionably small for the properties, there was
likelihood that a case for annulment might be filed against the
estate or heirs of Alfonso Precilla. And the administratrix being
the widow and heir of the alleged transferee, cannot be expected
to sue herself in an action to recover property that may turn out to
belong to the estate. This, plus her conduct in securing new
copies of the owner’s duplicate of titles without the court’s
knowledge and authority and having the contract bind the land
through issuance of new titles in her husband’s name, cannot but
expose her to the charge of unfitness or unsuitability to discharge
the trust, justifying her removal from the administration of the
estate.
6. REMEDIAL LAW; NOTICE OF LIS PENDENS; ACTION MUST
AFFECT "THE TITLE OR THE RIGHT OF POSSESSION OF
REAL PROPERTY." — On the matter of lis pendens, the
provisions of the Rules of Court are clear: notice of the pendency
of an action may be recorded in the office of the register of deeds
of the province in which the property is situated, if the action
affects "the title or the right of possession of (such) real
property."cralaw virtua1aw library
7. ID.; ID.; ID.; NOT APPLICABLE TO INSTANT CASE.— The
issue in controversy here is simply the fitness or unfitness of said
special administratrix to continue holding the trust, it does not
involve or affect at all the title to, or possession of, the properties
covered by TCT Nos. 81735, 81736 and 81737. Clearly, the
pendency of such case (L-26615) is not an action that can
properly be annotated in the record of the titles to the properties.
DECISION
REYES, J.B.L., J.:
G.R. No. L-27200 is an appeal from the order of the Court of First
Instance of Manila (in Sp. Proc. No. 62618) admitting to probate
the alleged last will an, testament of the late Gliceria Avelino del
Rosario dated 29 December 1960. G.R. Nos. L-26615 and L-
2684 are separate petitions for mandamus filed by certain alleged
heirs of said decedent seeking (1) to compel the probate court to
remove Consuelo S. Gonzales-Precilla as special administratrix
of the estate, for conflict of interest, to appoint a new one in her
stead; and (2) to order the Register of Deeds of Manila to
annotate notice of lis pendens in TCT Nos. 81735, 81736 ,and
81737, registered in the name of Alfonso Precilla, married to
Consuelo Gonzales y Narciso, and said to be properly belonging
to the estate of the deceased Gliceria A. del Rosario.

Insofar as pertinent to the issues involved herein, the facts of
these cases may be stated as follows:chanrob1es virtual 1aw
library
Gliceria Avelino del Rosario died unmarried in the City of Manila
on 2 September 1965, leaving no descendents, ascendants,
brother or sister. At the time of her death, she was said to be 90
years old more or less, and possessed of an estate consisting
mostly of real properties.
On 17 September 1965, Consuelo S. Gonzales Vda. de Precilla,
a niece of the deceased, petitioned the Court of First Instance of
Manila for probate of the alleged last will and testament of
Gliceria A. del Rosario, executed on 29 December 1960, and for
her appointment as special administratrix of the latter’s estate,
said to be valued at about P100,000.00, pending the appointment
of a regular administrator thereof.
The petition was opposed separately by several groups of alleged
heirs: (1) Rev. Fr. Lucio V. Garcia, a legatee named in an earlier
will executed by Gliceria A. del Rosario on 9 June 1956; (2)
Jaime Rosario and children, relatives and legatees in both the
1956 and 1960 wills; Antonio Jesus de Praga and Marta
Natividad de Jesus, wards of the deceased and legatees in the
1956 and 1960 wills; (3) Remedios, Encarnacion, and Eduardo,
all surnamed Narciso; (4) Natividad del Rosario-Sarmiento; (5)
Maria Narciso; (6) Pascuala Narciso de Manahan; (7) Severina,
Rosa and Josefa, surnamed Narciso, and Vicente and Delfin,
surnamed Mauricio, — the latter five groups of persons all
claiming to be relatives of Doña Gliceria within the fifth civil
degree. The oppositions invariably charged that the instrument
executed in 1960 was not intended by the deceased to be her
true will; that the signatures of the deceased appearing in the will
was procured through undue and improper pressure and
influence the part of the beneficiaries and/or other persons; that
the testatrix did not know the object of her bounty; that the
instrument itself reveals irregularities in its execution, and that the
formalities required by law for such execution have not been
complied with.
Oppositor Lucio V. Garcia, who also presented for probate the
1956 will of the deceased, joined the group of Dr. Jaime Rosario
in registering opposition to the appointment of petitioner Consuelo
S. Gonzales Vda. de Precilla as special administratrix, on the
ground that the latter possesses interest adverse to the estate.
After the parties were duly heard, the probate court, in its order of
2 October 1965, granted petitioner’s prayer and appointed her
special administratrix of the estate upon a bond for P30,000.00.
The order was premised on the fact the petitioner was managing
the properties belonging to the estate even during the lifetime of
the deceased, and to appoint another person as administrator or
co administrator at that stage of the proceeding would only result
in further confusion and difficulties.
On 30 September 1965, oppositors Jaime Rosario, Et. Al. filed
with the probate court an urgent motion to require the Hongkong
& Shanghai Bank to report all withdrawals made against the
funds of the deceased after 2 September 1965. The court denied
this motion on 22 October 1965 for being premature, it being
unaware that such deposit in the name of the deceased existed.
1
On 14 December 1965, the same sets of oppositors, Dr. Jaime
Rosario and children, Antonio Jesus de Praga, Natividad de
Jesus and Fr. Lucio V. Garcia, petitioned the court for the
immediate removal of the special administratrix. It was their claim
that the special administratrix and her deceased husband,
Alfonso Precilla, 2 had caused Gliceria A. del Rosario to execute
a simulated and fraudulent deed of absolute sale dated 10
January 1961 allegedly conveying unto said spouses for the
paltry sum of P30,000.00 ownership of 3 parcels of land and the
improvements thereon located on Quiapo and San Nicolas,
Manila, with a total assessed value of P334,050.00. Oppositors
contended that since it is the duty of the administrator to protect
and conserve the properties of the estate, and it may become
necessary that, an action for the annulment of the deed of sale
land for recovery of the aforementioned parcels of land be filed
against the special administratrix, as wife and heir of Alfonso
Precilla, the removal of the said administratrix was imperative.
On 17 December 1965, the same oppositors prayed the court for
an order directing the Special Administratrix to deposit with the
Clerk of Court all certificates of title belonging to the estate. It was
alleged that on 22 October 1965, or after her appointment,
petitioner Consuelo Gonzales Vda. de Precilla, in her capacity as
special administratrix of the estate of the deceased Gliceria A. del
Rosario, filed with Branch IV of the Court of First Instance of
Manila a motion for the issuance of new copies of the owner’s
duplicates of certain certificates of title in the name of Gliceria del
Rosario, supposedly needed by her "in the preparation of the
inventory" of the properties constituting the estate. The motion
having been granted, new copies of the owner’s duplicates of
certificates appearing the name of Gliceria del Rosario (among
which were TCT Nos. 66201, 66202 and 66204) were issued on
15 November 1965. On 8 December 1965, according to the
oppositors, the same special administratrix presented to the
Register of Deeds the deed of sale involving properties covered
by TCT Nos. 66201, 66202 and 66204 supposedly executed by
Gliceria del Rosario on 10 January 1961 in favor of Alfonso
Precilla, and, in consequence, said certificates of title were
cancelled and new certificates (Nos. 81735, 81736 and 81737)
were issued in the name of Alfonso Precilla, married to Consuelo
S. Gonzales y Narciso.
On 25 August 1966, the Court issued an order admitting to
probate the 1960 will of Gliceria A. del Rosario (Exhibit "D"). In
declaring the due execution of the will, the probate court took
note that no evidence had been presented to establish that the
testatrix was not of sound mind when the will was executed; that
the fact that she had prepared an earlier will did not, prevent her
from executing another one thereafter; that the fact that the 1956
will consisted of 12 pages whereas the 1960 testament was
contained in one page does not render the latter invalid; that, the
erasures and alterations in the instrument were insignificant to
warrant rejection; that the inconsistencies in the testimonies of
the instrumental witnesses which were noted by the oppositors
are even indicative of their truthfulness. The probate court, also
considering that petitioner had already shown capacity to
administer the properties of the estate and that from the
provisions of the will she stands as the person most concerned
and interested therein, appointed said petitioner regular
administratrix with a bond for P50,000.00. From this order all the
oppositors appealed, the case being docketed in this Court as
G.R. No. L-27200.
Then, on 13 September 1966, the probate court resolved the
oppositors’ motion of 14 December 1965 for the removal of the
then special administratrix, as follows:jgc:chanrobles.com.ph
"It would seem that the main purpose of the motion to remove the
special administratrix and to appoint another one in her stead, is
in order that an action may be filed against the special
administratrix for the annulment of the deed of sale executed by
the decedent on January 10, 1961. Under existing documents,
the properties sold pursuant to the said deed of absolute sale no
longer forms part of the estate. The alleged conflict of interest is
accordingly not between different claimants of the same estate. If
it is desired by the movants that an action be filed by them to
annul the aforesaid deed absolute sale, it is not necessary that
the special administratrix be removed and that another one be
appointed to file such action. Such a course of action would only
produce confusion and difficulties in the settlement of the estate.
The movants may file the aforesaid proceedings, preferably in an
independent action, to secure the nullity of the deed of absolute
even without leave of this court:"
As regard the motion of 17 December 1965 asking for the deposit
in court of the titles in the name of the decedent, the same was
also denied, for the reason that if the movants were referring to
the old titles, they could no longer be produced, and if they meant
the new duplicate copies thereof that were issued at the instance
of the special administratrix, there would be no necessity therefor,
because they were already cancelled and other certificates were
issued in the name of Alfonso Precilla. This order precipitated the
oppositors’ filing in this Court of a petition for mandamus (G.R.
No. L-26615, Rev. Fr. Lucio V. Garcia, Et. Al. v. Hon. Judge
Conrado M. Vasquez, Et. Al.), which was given due course on 6
October 1966.
On 15 December 1965, with that motion for removal pending in
the court, the oppositors requested the Register of Deeds of
Manila to annotate a notice of lis pendens in the records of TCT
Nos. 81735, 81736, and 81737 in the name of Alfonso Precilla.
And when said official refused to do so, they applied to the
probate court (in Sp. Proc. No. 62618) for an order to compel the
Register of Deeds to annotate a lis pendens notice in the
aforementioned titles contending that the matter of removal and
appointment of the administratrix, involving TCT Nos. 81735,
81736, and 81737, was already before the Supreme Court. Upon
denial of this motion on 12 November 1966, oppositors filed
another mandamus action, this time against the probate court and
the Register of Deeds. The case was docketed and given due
course in this Court as G.R. No. L-26864.
Foremost of the questions to be determined here concerns the
correctness of the order allowing the probate of the 1960 will.
The records of the probate proceeding fully establish the fact that
the testatrix, Gliceria A. del Rosario, during her lifetime, executed
two wills: one on 9 June 1956 consisting of 12 pages and written
in Spanish, a language that she knew and spoke, witnessed by
Messrs. Antonio Cabrera, Jesus Y. Ayala and Valentin Marquez,
and acknowledged before notary public Jose Ayala; and another
dated 29 December 1960, consisting of 1 page and written in
Tagalog, witnessed by Messrs. Vicente Rosales, Francisco
Decena, and Francisco Lopez and acknowledged before notary
public Remigio M. Tividad.
Called to testify on the due execution of the 1960 will,
instrumental witnesses Decena, Lopez and Rosales uniformly
declared that they were individually requested by Alfonso Precilla
(the late husband of petitioner special administratrix) to witness
the execution of the last will of Doña Gliceria A. del Rosario; that
they arrived at the house of the old lady at No. 2074 Azcarraga,
Manila, one after the other, in the afternoon of 29 December
1960; that the testatrix at the time was apparently of clear and
sound mind, although she was being aided by Precilla when she
walked; 3 that the will, which was already prepared, was first read
"silently" by the testatrix herself before she signed it; 4 that he
three witnesses thereafter signed the will in the presence of the
testatrix and the notary public and of one another. There is also
testimony that after the testatrix and the witnesses to the will
acknowledged the instrument to be their voluntary act and deed,
the notary public asked for their respective residence certificates
which were handed to him by Alfonso Precilla, clipped together; 5
that after comparing them with the numbers already written on the
will, the notary public filled in the blanks in the instrument with the
date, 29 January 1960, before he affixed his signature and seal
thereto. 6 They also testified that on that occasion no pressure or
influence has been exerted by any person upon the testatrix to
execute the will.
Of course, the interest and active participation of Alfonso Precilla
in the signing of this 1960 will are evident from the records. The
will appeared to have been prepared by one who is not
conversant with the spelling of Tagalog words, and it has been
shown that Alfonso Precilla is a Cebuano who speaks Tagalog
with a Visayan accent. 7 The witnesses to the will, two of whom
are fellow Visayans, 8 admitted their relationship or closeness to
Precilla. 9 It was Precilla who instructed them to go to the house
of Gliceria del Rosario on 29 December 1960 to witness an
important document, 10 and who took their residence certificates
from them a few days before the will was signed. 11 Precilla had
met the notary public and witnesses Rosales and Lopez at the
door of the residence of the old woman; he ushered them to the
room at the second floor where the signing of the document took
place; 12 then he fetched witness Decena from the latter’s
haberdashery shop a few doors away and brought him to, the
house the testatrix. 13 And when the will was actually executed
Precilla was present. 14
The oppositors-appellants in the present case, however,
challenging the correctness of the probate court’s ruling, maintain
that on 29 December 1960 the eyesight of Gliceria del Rosario
was so poor and defective that she could not have read the
provisions of the will, contrary to the testimonies of witnesses
Decena, Lopez and Rosales.
On this point, we find the declarations in court of Dr. Jesus V.
Tamesis very material and illuminating. Said ophthalmologist,
whose expertise was admitted by both parties, testified, among
other things, that when Doña Gliceria del Rosario saw him for
consultation on 11 March 1960 he found her left eye to have
cataract (opaque lens), 15 and that it was "above normal in
pressure", denoting a possible glaucoma, a disease that leads to
blindness 16 As to the conditions of her right eye, Dr. Tamesis
declared:jgc:chanrobles.com.ph
"Q But is there anything here in the entry appearing in the other
documents Exhibits 3-B, 3-C and 3-D from which you could
inform the court as to the condition of the vision of the patient as
to the right eve?
"A Under date of August 30, 1960, is the record of refraction. that
is setting of glass by myself which showed that the right eye with
my prescription of glasses had a vision of 2 over 60 (20/60) and
for the left eye with her correction 20 over 300 (20/300).
"Q In layman’s language, Doctor, what is the significance of that
notation that the right had a degree of 20 over 60 (20/60)?
"A It meant that eye at least would be able to recognize objects or
persons at a minimum distance of twenty feet.
"Q But would that grade enable the patient to read print?
"A Apparently that is only a record for distance vision, for distance
sight, not for near."cralaw virtua1aw library
(pages 20-21, t.s.n., hearing of 23 March 1966)
The records also show that although Dr. Tamesis operated of the
left eye of the decedent at the Lourdes Hospital on 8 August
1960; as of 23 August 1960, inspite of the glasses her vision was
only "counting fingers," 17 at five feet. The cross-examination of
the doctor further elicited the following
responses:jgc:chanrobles.com.ph
"Q After she was discharged from the hospital you prescribed
lenses for her, or glasses?
"A After her discharge from the hospital, she was coming to my
clinic for further examination and then sometime later glasses
were prescribed.
x x x "Q What about the vision in the right eve, was that corrected by
"Q And the glasses prescribed by you enabled her to read,
Doctor?
"A As far as my record is concerned, with the glasses for the left
eye which I prescribed — the eye which I operated — she could
see only forms but not read. That is on the left eye.
"Q How about the right eye?
"A The same, although the vision on the right eye is even better
than the left eye." (pages 34. 85. t.s.n., hearing of 23 March
1966).
Then, confronted with a medical certificate (Exhibit H) issued by
him on 29 November 1965 certifying that Gliceria del Rosario was
provided with aphakic lenses and "had been under medical
supervision up to 1963 with apparently good vision", the doctor
had this to say:jgc:chanrobles.com.ph
"Q When yon said that she had apparently good vision you mean
that she was able to read?
"A No, not necessarily, only able to go around, take care of
herself and see. This I can tell you, this report was made on pure
recollections and I recall she was using her glasses although I
recall also that we have to give her medicines to improve her
vision, some medicines to improve her identification some more.
x x x
the glasses?
"A Yes, with the new prescription which I issued on 80 August
1960. It is in the clinical record.
"Q The vision in the right eye was corrected?
"A Yes That is the vision for distant objects."cralaw virtua1aw
library
(pages 38, 39, 40. t.s.n., hearing of 23 March 1966).
The foregoing testimony of the ophthalmologist who treated the
deceased and, therefore, has first hand knowledge of the actual
condition of her eyesight from August, 1960 up to 1963, fully
establish the fact that notwithstanding the operation and removal
of the cataract in her left eye and her being fitted with aphakic
lens (used by cataract patients), her vision remained mainly for
viewing distant objects and not for reading print. Thus, the
conclusion is inescapable that with the condition of her eyesight
in August, 1960, and there is no evidence that it had improved by
29 December 1960, Gliceria del Rosario was incapable f reading,
and could not have read the provisions of the will supposedly
signed by her on 29 December 1960. It is worth noting that the
instrumental witnesses stated that she read the instrument
"silently" (t.s.n., pages 164-165). which is a conclusion and not a
fact.
Against the background of defective eyesight of the alleged
testatrix, the appearance of the will, Exhibit "D", acquires striking
significance. Upon its face, the testamentary provisions, the
attestation clause and acknowledgment were crammed together
into a single sheet of paper, to much so that the words had to be
written very close on the top, bottom and two sides of the paper,
leaving no margin whatsoever; the word "and" had to be written
by the symbol" &", apparently to save on space. Plainly, the
testament was not prepared with any regard for the defective
vision of Doña Gliceria. Further, typographical errors like
"HULINH" for "HULING" (last), "Alfonsa" ;or "Alfonso",
"MERCRDRS" for MERCEDES", "instrumental" for "Instrumental",
and "acknowledged" for "acknowledge’’, remained uncorrected,
thereby indicating that execution thereof must have been
characterized by haste. It is difficult to understand that so
important a document containing the final disposition of one’s
worldly possessions should be embodied in an informal and
untidily written instrument; or that the glaring spelling errors
should have escaped her notice if she had actually retained the
ability to read the purported will and had done so. The record is
thus convincing that the supposed testatrix could not have
physically read or understood the alleged testament, Exhibit "D",
and that its admission to probate was erroneous and should be
reversed.
That Doña Gliceria should be able to greet her guests on her
birthday, arrange flowers and attend to kitchen tasks shortly prior
to the alleged execution of the testament Exhibit "D", as appears
from the photographs, Exhibits "E" to "E-1", in no way proves; that
she was able to read a closely typed page, since the acts shown
do not require vision at close range. It must be remembered that
with the natural lenses removed, her eyes had lost the power of
adjustment to near vision, the substituted glass lenses being rigid
and uncontrollable by her. Neither is the signing of checks
(Exhibits "G" to "G-3") by her indicative of ability to see at normal
reading distances. Writing or signing of one’s name, when
sufficiently practiced, becomes automatic, so that one need only
to have a rough indication of the place where the signature is to
be affixed in order to be able to write it. Indeed, a close
examination of the checks, amplified in the photograph, Exhibit
"O", et seq., reinforces the contention of oppositors that the
alleged testatrix could not see at normal reading distance: the
signatures in the checks are written far above the printed base,
lines, and the names of the payees as well as the amounts
written do not appear to be in the handwriting of the alleged
testatrix, being in a much firmer and more fluid hand than hers.
Thus, for all intents and purpose of the rules on probate, the
deceased Gliceria del Rosario was, as appellant oppositors
contend, not unlike a blind testator, and the due execution of her
will would have required observance of the provisions of Article
808 of the Civil Code.
"ART. 808. If the testator is blind, the will shall be read to him
twice; once, by one of the subscribing witnesses, and again, by
the notary public before whom the will is acknowledged."cralaw
virtua1aw library
The rationale behind the requirement of reading the will to the
testator if he is blind or incapable of reading the will himself (as
when he is illiterate), 18 is to make the provisions thereof known
to him, so that he may be able to object if they are not in
accordance with his wishes. That the aim of the law is to insure
that the dispositions of the will are properly communicated to and
understood by the handicapped testator, thus making them truly
reflective of his desire, is evidenced by the requirement that the
will should be read to the latter, not only once but twice, by two
different persons, and that the witnesses have to act within the
range of his (the testator’s) other senses. 19
In connection with the will here in question, there is nothing in the
records to show that the above requisites have been complied
with. Clearly, as already stated, the 1960 will sought to be
probated suffers from infirmity that affects its due execution.
We also find merit in the complaint of oppositors Lucio V. Garcia,
Et Al., against the denial by the probate court of their petition for
the removal of Consuelo Gonzales Vda. de Precilla as special
administratrix of the estate of the deceased Doña Gliceria
(Petition, G.R. No. L-26615, Annex "B").
The oppositors’ petition was based allegedly on the existence in
the special administratrix of an interest adverse to that of the
estate. It was their contention that through fraud her husband had
caused the deceased Gliceria del Rosario to execute a deed of
sale, dated 10 January 1961, by virtue of which the latter
purportedly conveyed unto said Alfonso D. Precilla, married to
Consuelo Gonzales y Narciso, the ownership of 3 parcels of land
and the improvements thereon, assessed at P334,050.00, for the
sum of P30,000.00.
In denying the petition, the probate court, in its order of 13
September 1966 (Annex "P", Petition) reasoned out that since the
properties were already sold no longer form part of the estate.
The conflict of interest would not be between the estate and third
parties, but among the different claimants of said properties, in
which case, according to the court, the participation of the special
administratrix in the action for annulment that may be brought
would not be necessary.
The error in this line of reasoning lies in the fact that what was
being questioned was precisely the validity of the conveyance or
sale of the properties. In short, if proper, the action for annulment
would have to be undertaken on behalf of the estate by the
special administratrix, affecting as it does the property or rights of
the deceased. 20 For the rule is that only where there is no
special proceeding for the settlement of the estate of the
deceased may the legal heirs commence an action arising out of
a right belonging to their ancestor. 21
There is no doubt that to settle the question of the due execution
and validity of the deed of sale, an ordinary and separate action
would have to be instituted, the matter not falling within the
competence of the probate court. 22 Considering the facts then
before it, i.e., the alleged deed of sale having been executed by
Gliceria del Rosario on 10 January 1961, when she was already
practically blind; and that the consideration of P30,000.00 seems
to be unconscionably small for properties with a total assessed
value of P334,050.00, there was likelihood that a case for
annulment might indeed be filed against the estate or heirs of
Alfonso Precilla. And the administratrix, being the widow and heir
of the alleged transferee, cannot be expected to sue herself in an
action to recover property that may turn out to belong to the
estate. 22 Not only this, but the conduct of the special
administratrix in securing new copies of the owner’s duplicates of
TCT Nos. 66201, 66202, and 66204, without the court’s
knowledge or authority, and on the pretext that she needed them
in the preparation of the inventory of the estate, when she must
have already known by then that the properties covered therein
were already "conveyed" to her husband by the deceased, being
the latter’s successor, and having the contract bind the land
through issuance of new titles in her husband’s name cannot but
expose her to the charge of unfitness or unsuitableness to
discharge the trust, justifying her removal from the administration
of the estate.
With respect to the orders of the court a quo denying (1) the
oppositors’ motion to require the Hongkong and Shanghai Bank
to report all withdrawals made against the funds of the deceased
after 2 September 1965 and (2) the motion for annotation of a lis
pendens notice on TCT Nos. 81735, 81736 and 81737, the same
are to be affirmed.
The probate court pointed out in its order of 22 October 1965
(Annex "H") that it could not have taken action on the complaint
against the alleged withdrawals from the bank deposits of the
deceased, because as of that time the court had not yet been
apprised that such deposits exist. Furthermore, as explained by
the special administratrix in her pleading of 30 October 1965, the
withdrawals referred to by the oppositors could be those covered
by checks issued in the name of Gliceria del Rosario during her
lifetime but cleared only after her death. That explanation, which
not only appears plausible but has not been rebutted by the
petitioners-oppositors, negates any charge of grave abuse in
connection with the issuance of the order here in question.
On the matter of lis pendens (G.R. No. L-26864), the provisions
of the Rules of Court are clear: notice of the pendency of an
action may be recorded in the office of the register of deeds of the
province in which the property is situated, if the action affects "the
title or the right of possession of (such) real property." 23 In the
case at bar, the pending action which oppositors seek to annotate
in the records of TCT Nos. 81735, 81736, and 81737 is the
mandamus proceeding filed in this Court (G.R. No. L-26615). As
previously discussed in this opinion, however, that case is
concerned merely with the correctness of the denial by the
probate court of the motion for the removal of Consuelo Gonzales
Vda. de Precilla as special administratrix of the estate of the late
Gliceria del Rosario. In short, the issue in controversy there is
simply the fitness or unfitness of said special administratrix to
continue holding the trust; it does not involve or affect at all the
title to, or possession of, the properties covered by said TCT Nos.
81735, 81736 and 81737. Clearly, the pendency of such case (L-
26615) is not an action that can properly be annotated in the
record of the titles to the properties.
FOR THE FOREGOING REASONS, the order of the court below
allowing to probate the alleged 1960 will of Gliceria A. del Rosario
is hereby reversed and set aside. The petition in G.R. No. L-
26615 being meritorious, the appealed order is set aside and the
court below is ordered to remove the administratrix, Consuelo
Gonzales Vda. de Precilla, and appoint one of the heirs intestate
of the deceased Doña Gliceria Avelino del Rosario as special
administrator for the purpose of instituting action on behalf of her
estate to recover the properties allegedly sold by her to the late
Alfonso D. Precilla. And in Case G.R. No. L-26864, petition is
dismissed. No costs.
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 nito, ay pagpapatutuo na ipinakilala
ipinaalam at ipinahayag sa amin ni Isabel Gabriel
na ang kasulatang ito na binubuo ng Limang
Dahon (Five Pages) pati na ang dahong ito, na
siya niyang TESTAMENTO AT HULING HABILIN,
ngayong ika 15 ng Abril, 1961, ay nilagdaan ng
nasabing testadora na si Isabel Gabriel ang
nasabing testamento sa ibaba o ilalim ng
kasulatan na nasa ika apat na dahon (page four)
at nasa itaas ng patunay naming ito, at sa
kaliwang panig ng lahat at bawat dahon (and on
the left hand margin of each and every page), sa
harap ng lahat at bawat isa sa amin, at kami
namang mga saksi ay lumagda sa harap ng
nasabing testadora, at sa harap ng lahat at bawat
isa sa amin, sa ilalim ng patunay ng mga saksi at
sa kaliwang panig ng lahat at bawa't dahon ng
testamentong ito.
At the bottom thereof, under the heading "Pangalan", are written
the signatures of Matilde D. Orobia, Celso D. Gimpaya and Maria
R. Gimpaya, and opposite the same, under the heading
"Tirahan", are their respective places of residence, 961 Highway
54, Philamlife, for Miss Orobia, and 12 Dagala St., Navotas,
Rizal, for the two Gimpayas. Their signatures also appear on the
left margin of all the other pages. The 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, 5and 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.
A.C. No. 5281 February 12, 2008
MANUEL L. LEE, petitioner,
vs.
ATTY. REGINO B. TAMBAGO, respondent.
RESOLUTION
CORONA, J.:
In a letter-complaint dated April 10, 2000, complainant Manuel L.
Lee charged respondent Atty. Regino B. Tambago with violation
of the Notarial Law and the ethics of the legal profession for
notarizing a spurious last will and testament.
In his complaint, complainant averred that his father, the
decedent Vicente Lee, Sr., never executed the contested will.
Furthermore, the spurious will contained the forged signatures of
Cayetano Noynay and Loreto Grajo, the purported witnesses to
its execution.
In the said will, the decedent supposedly bequeathed his entire
estate to his wife Lim Hock Lee, save for a parcel of land which
he devised to Vicente Lee, Jr. and Elena Lee, half-siblings of
complainant.
The will was purportedly executed and acknowledged before
respondent on June 30, 1965.1 Complainant, however, pointed
out that the residence certificate2 of the testator noted in the
acknowledgment of the will was dated January 5,
1962.3 Furthermore, the signature of the testator was not the
same as his signature as donor in a deed of donation4 (containing
his purported genuine signature). Complainant averred that the
signatures of his deceased father in the will and in the deed of
donation were "in any way (sic) entirely and diametrically
opposed from (sic) one another in all angle[s]."5
Complainant also questioned the absence of notation of the
residence certificates of the purported witnesses Noynay and
Grajo. He alleged that their signatures had likewise been forged
and merely copied from their respective voters’ affidavits.
Complainant further asserted that no copy of such purported will
was on file in the archives division of the Records Management
and Archives Office of the National Commission for Culture and
the Arts (NCCA). In this connection, the certification of the chief of
the archives division dated September 19, 1999 stated:
Doc. 14, Page No. 4, Book No. 1, Series of 1965 refers to
an AFFIDAVIT executed by BARTOLOME RAMIREZ on
June 30, 1965 and is available in this Office[’s] files.6
Respondent in his comment dated July 6, 2001 claimed that the
complaint against him contained false allegations: (1) that
complainant was a son of the decedent Vicente Lee, Sr. and (2)
that the will in question was fake and spurious. He alleged that
complainant was "not a legitimate son of Vicente Lee, Sr. and the
last will and testament was validly executed and actually
notarized by respondent per affidavit7 of Gloria Nebato, common-
law wife of Vicente Lee, Sr. and corroborated by the joint
affidavit8 of the children of Vicente Lee, Sr., namely Elena N. Lee
and Vicente N. Lee, Jr. xxx."9
Respondent further stated that the complaint was filed simply to
harass him because the criminal case filed by complainant
against him in the Office of the Ombudsman "did not prosper."
Respondent did not dispute complainant’s contention that no
copy of the will was on file in the archives division of the NCCA.
He claimed that no copy of the contested will could be found
there because none was filed.
Lastly, respondent pointed out that complainant had no valid
cause of action against him as he (complainant) did not first file
an action for the declaration of nullity of the will and demand his
share in the inheritance.
In a resolution dated October 17, 2001, the Court referred the
case to the Integrated Bar of the Philippines (IBP) for
investigation, report and recommendation.10
In his report, the investigating commissioner found respondent
guilty of violation of pertinent provisions of the old Notarial Law as
found in the Revised Administrative Code. The violation
constituted an infringement of legal ethics, particularly Canon
111 and Rule 1.0112 of the Code of Professional Responsibility
(CPR).13 Thus, the investigating commissioner of the IBP
Commission on Bar Discipline recommended the suspension of
respondent for a period of three months.
The IBP Board of Governors, in its Resolution No. XVII-2006-285
dated May 26, 2006, resolved:
[T]o ADOPT and APPROVE, as it is hereby ADOPTED
and APPROVED, with modification, the Report and
Recommendation of the Investigating Commissioner of
the above-entitled case, herein made part of this
Resolution as Annex "A"; and, finding the
recommendation fully supported by the evidence on
record and the applicable laws and rules, and considering
Respondent’s failure to comply with the laws in the
discharge of his function as a notary public, Atty. Regino
B. Tambago is hereby suspended from the practice of law
for one year and Respondent’s notarial commission
is Revoked and Disqualified from reappointment as
Notary Public for two (2) years.14
We affirm with modification.
A will is an act whereby a person is permitted, with the formalities
prescribed by law, to control to a certain degree the disposition of
his estate, to take effect after his death.15 A will may either be
notarial or holographic.
The law provides for certain formalities that must be followed in
the execution of wills. The object of solemnities surrounding the
execution of wills is to close the door on bad faith and fraud, to
avoid substitution of wills and testaments and to guarantee their
truth and authenticity.16
A notarial will, as the contested will in this case, is required by law
to be subscribed at the end thereof by the testator himself. In
addition, it should be attested and subscribed by three or more
credible witnesses in the presence of the testator and of one
another.17
The will in question was attested by only two witnesses, Noynay
and Grajo. On this circumstance alone, the will must be
considered void.18 This is in consonance with the rule that acts
executed against the provisions of mandatory or prohibitory laws
shall be void, except when the law itself authorizes their validity.
The Civil Code likewise requires that a will must be
acknowledged before a notary public by the testator and the
witnesses.19 The importance of this requirement is highlighted by
the fact that it was segregated from the other requirements under
Article 805 and embodied in a distinct and separate provision.20
An acknowledgment is the act of one who has executed a deed in
going before some competent officer or court and declaring it to
be his act or deed. It involves an extra step undertaken whereby
the signatory actually declares to the notary public that the same
is his or her own free act and deed.21 The acknowledgment in a
notarial will has a two-fold purpose: (1) to safeguard the testator’s
wishes long after his demise and (2) to assure that his estate is
administered in the manner that he intends it to be done.
A cursory examination of the acknowledgment of the will in
question shows that this particular requirement was neither
strictly nor substantially complied with. For one, there was the
conspicuous absence of a notation of the residence certificates of
the notarial witnesses Noynay and Grajo in the acknowledgment.
Similarly, the notation of the testator’s old residence certificate in
the same acknowledgment was a clear breach of the law. These
omissions by respondent invalidated the will.
As the acknowledging officer of the contested will, respondent
was required to faithfully observe the formalities of a will and
those of notarization. As we held in Santiago v. Rafanan:22
The Notarial Law is explicit on the obligations and duties
of notaries public. They are required to certify that the
party to every document acknowledged before him had
presented the proper residence certificate (or exemption
from the residence tax); and to enter its number, place of
issue and date as part of such certification.
These formalities are mandatory and cannot be disregarded,
considering the degree of importance and evidentiary weight
attached to notarized documents.23 A notary public, especially a
lawyer,24 is bound to strictly observe these elementary
requirements.
The Notarial Law then in force required the exhibition of the
residence certificate upon notarization of a document or
instrument:
 Section 251. Requirement as to notation of payment of
[cedula] residence tax. – Every contract, deed, or other
document acknowledged before a notary public shall have
certified thereon that the parties thereto have presented
their proper [cedula] residence certificate or are exempt
from the [cedula] residence tax, and there shall be
entered by the notary public as a part of such certificate
the number, place of issue, and date of each [cedula]
residence certificate as aforesaid.25
The importance of such act was further reiterated by Section 6 of
the Residence Tax Act26 which stated:
When a person liable to the taxes prescribed in this Act
acknowledges any document before a notary public xxx it
shall be the duty of such person xxx with whom such
transaction is had or business done, to require the
exhibition of the residence certificate showing payment of
the residence taxes by such person xxx.
In the issuance of a residence certificate, the law seeks to
establish the true and correct identity of the person to whom it is
issued, as well as the payment of residence taxes for the current
year. By having allowed decedent to exhibit an expired residence
certificate, respondent failed to comply with the requirements of
both the old Notarial Law and the Residence Tax Act. As much
could be said of his failure to demand the exhibition of the
residence certificates of Noynay and Grajo.
On the issue of whether respondent was under the legal
obligation to furnish a copy of the notarized will to the archives
division, Article 806 provides:
Art. 806. Every will must be acknowledged before a
notary public by the testator and the witness. The notary
public shall not be required to retain a copy of the
will, or file another with the office of the Clerk of
Court. (emphasis supplied)
Respondent’s failure, inadvertent or not, to file in the archives
division a copy of the notarized will was therefore not a cause for
disciplinary action.
Nevertheless, respondent should be faulted for having failed to
make the necessary entries pertaining to the will in his notarial
register. The old Notarial Law required the entry of the following
matters in the notarial register, in chronological order:
1. nature of each instrument executed, sworn to, or
acknowledged before him;
2. person executing, swearing to, or acknowledging the
instrument;
3. witnesses, if any, to the signature;
4. date of execution, oath, or acknowledgment of the
instrument;
5. fees collected by him for his services as notary;
6. give each entry a consecutive number; and
7. if the instrument is a contract, a brief description of the
substance of the instrument.27
In an effort to prove that he had complied with the
abovementioned rule, respondent contended that he had crossed
out a prior entry and entered instead the will of the decedent. As
proof, he presented a photocopy of his notarial register. To
reinforce his claim, he presented a photocopy of a
certification28 stating that the archives division had no copy of the
affidavit of Bartolome Ramirez.
A photocopy is a mere secondary evidence. It is not admissible
unless it is shown that the original is unavailable. The proponent
must first prove the existence and cause of the unavailability of
the original,29 otherwise, the evidence presented will not be
admitted. Thus, the photocopy of respondent’s notarial register
was not admissible as evidence of the entry of the execution of
the will because it failed to comply with the requirements for the
admissibility of secondary evidence.
In the same vein, respondent’s attempt to controvert the
certification dated September 21, 199930 must fail. Not only did he
present a mere photocopy of the certification dated March 15,
2000;31 its contents did not squarely prove the fact of entry of the
contested will in his notarial register.
32
Notaries public must observe with utmost care and utmost
fidelity the basic requirements in the performance of their duties,
otherwise, the confidence of the public in the integrity of notarized
deeds will be undermined.33
Defects in the observance of the solemnities prescribed by law
render the entire will invalid. This carelessness cannot be taken
lightly in view of the importance and delicate nature of a will,
considering that the testator and the witnesses, as in this case,
are no longer alive to identify the instrument and to confirm its
contents.34 Accordingly, respondent must be held accountable for
his acts. The validity of the will was seriously compromised as a
consequence of his breach of duty.35
In this connection, Section 249 of the old Notarial Law provided:
Grounds for revocation of commission. — The following
derelictions of duty on the part of a notary public shall, in
the discretion of the proper judge of first instance, be
sufficient ground for the revocation of his commission:
xxx xxx xxx
(b) The failure of the notary to make the proper entry or
entries in his notarial register touching his notarial acts in
the manner required by law.
xxx xxx xxx
(f) The failure of the notary to make the proper notation
regarding cedula certificates.36
These gross violations of the law also made respondent liable for
violation of his oath as a lawyer and constituted transgressions of
Section 20 (a), Rule 138 of the Rules of Court37 and Canon
138 and Rule 1.0139 of the CPR.
The first and foremost duty of a lawyer is to maintain allegiance to
the Republic of the Philippines, uphold the Constitution and obey
the laws of the land.40 For a lawyer is the servant of the law and
belongs to a profession to which society has entrusted the
administration of law and the dispensation of justice.41
While the duty to uphold the Constitution and obey the law is an
obligation imposed on every citizen, a lawyer assumes
responsibilities well beyond the basic requirements of good
citizenship. As a servant of the law, a lawyer should moreover
make himself an example for others to emulate.42 Being a lawyer,
he is supposed to be a model in the community in so far as
respect for the law is concerned.43
The practice of law is a privilege burdened with conditions.44 A
breach of these conditions justifies disciplinary action against the
erring lawyer. A disciplinary sanction is imposed on a lawyer upon
a finding or acknowledgment that he has engaged in professional
misconduct.45 These sanctions meted out to errant lawyers
include disbarment, suspension and reprimand.
Disbarment is the most severe form of disciplinary sanction.46 We
have held in a number of cases that the power to disbar must be
exercised with great caution47 and should not be decreed if any
punishment less severe – such as reprimand, suspension, or fine
– will accomplish the end desired.48 The rule then is that
disbarment is meted out only in clear cases of misconduct that
seriously affect the standing and character of the lawyer as an
officer of the court.49
Respondent, as notary public, evidently failed in the performance
of the elementary duties of his office. Contrary to his claims that
he "exercised his duties as Notary Public with due care and with
due regard to the provision of existing law and had complied with
the elementary formalities in the performance of his duties xxx,"
we find that he acted very irresponsibly in notarizing the will in
question. Such recklessness warrants the less severe
punishment of suspension from the practice of law. It is, as well, a
sufficient basis for the revocation of his commission50 and his
perpetual disqualification to be commissioned as a notary
public.51
WHEREFORE, respondent Atty. Regino B. Tambago is hereby
found guilty of professional misconduct. He violated (1) the
Lawyer’s Oath; (2) Rule 138 of the Rules of Court; (3) Canon 1
and Rule 1.01 of the Code of Professional Responsibility; (4) Art.
806 of the Civil Code and (5) the provisions of the old Notarial
Law.
Atty. Regino B. Tambago is hereby SUSPENDED from the
practice of law for one year and his notarial
commission REVOKED. Because he has not lived up to the
trustworthiness expected of him as a notary public and as an
officer of the court, he is PERPETUALLY DISQUALIFIED from
reappointment as a notary public.
Let copies of this Resolution be furnished to all the courts of the
land, the Integrated Bar of the Philippines and the Office of the
Bar Confidant, as well as made part of the personal records of
respondent.
SO ORDERED.
G.R. No. 145545 June 30, 2008
PAZ SAMANIEGO-CELADA, petitioner,
vs.
LUCIA D. ABENA, respondent.
DECISION
QUISUMBING, J.:
This is a petition for review under Rule 45 of the 1997 Rules of
Civil Procedure seeking to reverse the Decision1dated October
13, 2000 of the Court of Appeals in CA-G.R. CV No. 41756,
which affirmed the Decision2 dated March 2, 1993 of the Regional
Trial Court (RTC), Branch 66, Makati City. The RTC had declared
the last will and testament of Margarita S. Mayores probated and
designated respondent Lucia D. Abena as the executor of her
will. It also ordered the issuance of letters testamentary in favor of
respondent.
The facts are as follows:
Petitioner Paz Samaniego-Celada was the first cousin of
decedent Margarita S. Mayores (Margarita) while respondent was
the decedent’s lifelong companion since 1929.
On April 27, 1987, Margarita died single and without any
ascending nor descending heirs as her parents, grandparents
and siblings predeceased her. She was survived by her first
cousins Catalina Samaniego-Bombay, Manuelita Samaniego
Sajonia, Feliza Samaniego, and petitioner.
Before her death, Margarita executed a Last Will and
Testament3 on February 2, 1987 where she bequeathed one-half
of her undivided share of a real property located at Singalong
Manila, consisting of 209.8 square meters, and covered by
Transfer Certificate of Title (TCT) No. 1343 to respondent, Norma
A. Pahingalo, and Florentino M. Abena in equal shares or one-
third portion each. She likewise bequeathed one-half of her
undivided share of a real property located at San Antonio Village,
Makati, consisting of 225 square meters, and covered by TCT No.
68920 to respondent, Isabelo M. Abena, and Amanda M. Abena
in equal shares or one-third portion each. Margarita also left all
her personal properties to respondent whom she likewise
designated as sole executor of her will.
On August 11, 1987, petitioner filed a petition for letters of
administration of the estate of Margarita before the RTC of
Makati. The case was docketed as SP Proc. No. M-1531.
On October 27, 1987, respondent filed a petition for probate of
the will of Margarita before the RTC of Makati. The case was
docketed as SP Proc. No. M-1607 and consolidated with SP
Proc. No. M-1531.
On March 2, 1993, the RTC rendered a decision declaring the
last will and testament of Margarita probated and respondent as
the executor of the will. The dispositive portion of the decision
states:
In view of the foregoing, judgment is hereby rendered:
1) declaring the will as probated;
2) declaring Lucia Abena as the executor of the will who
will serve as such without a bond as stated in paragraph
VI of the probated will;
3) ordering the issuance of letters testamentary in favor of
Lucia Abena.
So ordered.4
Petitioner appealed the RTC decision to the Court of Appeals. But
the Court of Appeals, in a decision dated October 13, 2000,
affirmed in toto the RTC ruling. The dispositive portion of the
Court of Appeals’ decision states:
WHEREFORE, foregoing premises considered, the
appeal having no merit in fact and in law, is
 hereby ORDERED DISMISSED and the appealed
Decision of the trial court AFFIRMED IN TOTO, with cost
to oppositors-appellants.
SO ORDERED.5
Hence, the instant petition citing the following issues:
I.
WHETHER OR NOT THE COURT OF APPEALS
COMMITTED A REVERSIBLE ERROR IN NOT
INVALIDATING THE WILL SINCE IT DID NOT
CONFORM TO THE FORMALITIES REQUIRED BY
LAW;
II.
WHETHER OR NOT THE COURT OF APPEALS
COMMITTED ERROR IN NOT INVALIDATING THE WILL
BECAUSE IT WAS PROCURED THROUGH UNDUE
INFLUENCE AND PRESSURE[;] AND
III.
WHETHER OR NOT THE COURT OF APPEALS
GRAVELY ERRED IN NOT DECLARING PETITIONER,
HER SIBLINGS AND COUSIN AS THE LEGAL HEIRS
OF MARGARITA S. MAYORES AND IN NOT ISSUING
LETTERS OF ADMINISTRATION TO HER.6
Briefly stated, the issues are (1) whether the Court of Appeals
erred in not declaring the will invalid for failure to comply with the
formalities required by law, (2) whether said court erred in not
declaring the will invalid because it was procured through undue
influence and pressure, and (3) whether it erred in not declaring
petitioner and her siblings as the legal heirs of Margarita, and in
not issuing letters of administration to petitioner.
Petitioner, in her Memorandum,7 argues that Margarita’s will failed
to comply with the formalities required under Article 8058 of the
Civil Code because the will was not signed by the testator in the
presence of the instrumental witnesses and in the presence of
one another. She also argues that the signatures of the testator
on pages A, B, and C of the will are not the same or similar,
indicating that they were not signed on the same day. She further
argues that the will was procured through undue influence and
pressure because at the time of execution of the will, Margarita
was weak, sickly, jobless and entirely dependent upon
respondent and her nephews for support, and these alleged
handicaps allegedly affected her freedom and willpower to decide
on her own. Petitioner thus concludes that Margarita’s total
dependence on respondent and her nephews compelled her to
sign the will. Petitioner likewise argues that the Court of Appeals
should have declared her and her siblings as the legal heirs of
Margarita since they are her only living collateral relatives in
accordance with Articles 10099 and 101010 of the Civil Code.
Respondent, for her part, argues in her Memorandum11 that the
petition for review raises questions of fact, not of law and as a
rule, findings of fact of the Court of Appeals are final and
conclusive and cannot be reviewed on appeal to the Supreme
Court. She also points out that although the Court of Appeals at
the outset opined there was no compelling reason to review the
petition, the Court of Appeals proceeded to tackle the assigned
errors and rule that the will was validly executed, sustaining the
findings of the trial court that the formalities required by law were
duly complied with. The Court of Appeals also concurred with the
findings of the trial court that the testator, Margarita, was of sound
mind when she executed the will.
After careful consideration of the parties’ contentions, we rule in
favor of respondent.
We find that the issues raised by petitioner concern pure
questions of fact, which may not be the subject of a petition for
review on certiorari under Rule 45 of the Rules of Civil Procedure.
The issues that petitioner is raising now i.e., whether or not the
will was signed by the testator in the presence of the witnesses
and of one another, whether or not the signatures of the
witnesses on the pages of the will were signed on the same day,
and whether or not undue influence was exerted upon the testator
which compelled her to sign the will, are all questions of fact.
(3) Where there is a grave abuse of discretion;
(4) When the 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;
(7) When the findings are contrary to those of the trial
court;
(8) When the findings of fact are conclusions without
citation of specific evidence on which they are based;

This Court does not resolve questions of fact in a petition for (9) When the facts set forth in the petition as well as in the
review under Rule 45 of the 1997 Rules of Civil Procedure. petitioners’ main and reply briefs are not disputed by the
Section 112 of Rule 45 limits this Court’s review to questions of respondents; and
law only.
(10) When the findings of fact of the Court of Appeals are
Well-settled is the rule that the Supreme Court is not a trier of premised on the supposed absence of evidence and
facts. When supported by substantial evidence, the findings of contradicted by the evidence on record.13
fact of the Court of Appeals are conclusive and binding on the
parties and are not reviewable by this Court, unless the case falls
We find that this case does not involve any of the
under any of the following recognized exceptions:
abovementioned exceptions.
(1) When the conclusion is a finding grounded entirely on
Nonetheless, a review of the findings of the RTC as upheld by the
speculation, surmises and conjectures;
Court of Appeals, reveal that petitioner’s arguments lack basis.
The RTC correctly held:
(2) When the inference made is manifestly mistaken,
absurd or impossible;
With [regard] to the contention of the oppositors [Paz
Samaniego-Celada, et al.] that the testator [Margarita
Mayores] was not mentally capable of making a will at the
time of the execution thereof, the same is without merit.
The oppositors failed to establish, by preponderance of
evidence, said allegation and contradict the presumption
that the testator was of sound mind (See Article 800 of the
Civil Code). In fact, witness for the oppositors, Dr. Ramon
Lamberte, who, in some occasions, attended to the
testator months before her death, testified that Margarita
Mayores could engage in a normal conversation and he
even stated that the illness of the testator does not
warrant hospitalization…. Not one of the oppositor’s
witnesses has mentioned any instance that they observed
act/s of the testator during her lifetime that could be
construed as a manifestation of mental incapacity. The
testator may be admitted to be physically weak but it does
not necessarily follow that she was not of sound mind.
[The] testimonies of contestant witnesses are pure
aforethought.
Anent the contestants’ submission that the will is fatally
defective for the reason that its attestation clause states
that the will is composed of three (3) pages while in truth
and in fact, the will consists of two (2) pages only because
the attestation is not a part of the notarial will, the same is
not accurate. While it is true that the attestation clause is
not a part of the will, the court, after examining the totality
of the will, is of the considered opinion that error in the
number of pages of the will as stated in the attestation
clause is not material to invalidate the subject will. It must
be noted that the subject instrument is consecutively
lettered with pages A, B, and C which is a sufficient
safeguard from the possibility of an omission of some of
the pages. The error must have been brought about by
the honest belief that the will is the whole instrument
consisting of three (3) pages inclusive of the attestation
clause and the acknowledgement. The position of the
court is in consonance with the "doctrine of liberal
interpretation" enunciated in Article 809 of the Civil
Code which reads:
"In the absence of bad faith, forgery or fraud,
or undue [and] improper pressure and
influence, defects and imperfections in the
form of attestation or in the language used
therein shall not render the will invalid if it is
proved that the will was in fact executed and
attested in substantial compliance with all the
requirements of Article 805."
The court also rejects the contention of the oppositors that
the signatures of the testator were affixed on different
occasions based on their observation that the signature
on the first page is allegedly different in size, texture and
appearance as compared with the signatures in the
succeeding pages. After examination of the signatures,
the court does not share the same observation as the
oppositors. The picture (Exhibit "H-3") shows that the
testator was affixing her signature in the presence of the
instrumental witnesses and the notary. There is no
evidence to show that the first signature was procured
earlier than February 2, 1987.
Finally, the court finds that no pressure nor undue
influence was exerted on the testator to execute the
subject will. In fact, the picture reveals that the testator
was in a good mood and smiling with the other witnesses
while executing the subject will (See Exhibit "H").
In fine, the court finds that the testator was mentally
capable of making the will at the time of its execution, that

the notarial will presented to the court is the same notarial
will that was executed and that all the formal requirements
(See Article 805 of the Civil Code) in the execution of a
will have been substantially complied with in the subject
notarial will.14 (Emphasis supplied.)
Thus, we find no reason to disturb the abovementioned findings
of the RTC. Since, petitioner and her siblings are not compulsory
heirs of the decedent under Article 88715 of the Civil Code and as
the decedent validly disposed of her properties in a will duly
executed and probated, petitioner has no legal right to claim any
part of the decedent’s estate.
WHEREFORE, the petition is DENIED. The assailed Decision
dated October 13, 2000 of the Court of Appeals in CA-G.R. CV
No. 41756 is AFFIRMED.
Costs against petitioner.
SO ORDERED.
Footnotes
1
Rollo, pp. 41-48. Penned by Associate Justice Jose L.
Sabio, Jr., with Associate Justices Salvador J. Valdez, Jr.
and Eliezer R. delos Santos concurring.
2
Id. at 34-40. Penned by Judge Eriberto U. Rosario, Jr.
3
Id. at 31-33.
4 nor children of brothers or sisters, the other collateral
Id. at 40.
5
Id. at 47.
6
Id. at 85.
7
Id. at 82-102.
8
Art. 805. Every will, other than a holographic will, must
be subscribed at the end thereof by the testator himself or
by the testator’s name written by some other person in his
presence, and by his express direction, and attested and
subscribed by three or more credible witnesses in the
presence of the testator and of one another.
The testator or the person requested by him to write his
name and the instrumental witnesses of the will, shall also
sign, as aforesaid, each and every page thereof, except
the last, on the left margin, and all the pages shall be
numbered correlatively in letters placed on the upper part
of each page.
The attestation shall state the number of pages used
upon which the will is written, and the fact that the testator
signed the will and every page thereof, or caused some
other person to write his name, under his express
direction, in the presence of the instrumental witnesses,
and that the latter witnessed and signed the will and all
the pages thereof in the presence of the testator and of
one another.
If the attestation clause is in a language not known to the
witnesses, it shall be interpreted to them.
9
Art. 1009. Should there be neither brothers nor sisters
relatives shall succeed to the estate.
The latter shall succeed without distinction of lines or (3) The widow or widower;
preference among them by reason of relationship by the
whole blood. (4) Acknowledged natural children, and natural
children by legal fiction;
10
Art. 1010. The right to inherit ab intestato shall not
extend beyond the fifth degree of relationship in the (5) Other illegitimate children referred to in article
collateral line. 287.
11
Rollo, pp. 108-111. Compulsory heirs mentioned in Nos. 3, 4 and 5
are not excluded by those in Nos. 1 and 2; neither
12
SECTION 1. Filing of petition with Supreme Court.— A do they exclude one another.
party desiring to appeal by certiorari from a judgment or
final order or resolution of the Court of Appeals, the In all cases of illegitimate children, their filiation
Sandiganbayan, the Regional Trial Court or other courts must be duly proved.
whenever authorized by law, may file with the Supreme
Court a verified petition for review on certiorari. The The father or mother of illegitimate children of the
petition shall raise only questions of law which must be three classes mentioned, shall inherit from them in
distinctly set forth. the manner and to the extent established by this
Code.
13
Ontimare, Jr. v. Elep, G.R. No. 159224, January 20,
2006, 479 SCRA 257, 265.

14
Rollo, pp. 38-40.

15
Art. 887. The following are compulsory heirs:

(1) Legitimate children and descendants, with

respect to their legitimate parents and
ascendants;

(2) In default of the foregoing, legitimate parents

and ascendants, with respect to their legitimate
children and descendants;