Respondent Luz R.
Henson, another compulsory heir filed an "opposition to
G.R. No. L-38338 January 28, 1985
IN THE MATTER OF THE INTESTATE ESTATE OF ANDRES G. DE JESUS
AND BIBIANA ROXAS DE JESUS, SIMEON R. ROXAS & PEDRO ROXAS
DE JESUS, petitioners,
vs.
ANDRES R. DE JESUS, JR., respondent.
Raul S. Sison Law Office for petitioners.
Rafael Dinglasan, Jr. for heir M. Roxas.
Ledesma, Guytingco Velasco and Associates for Ledesa and A. R. de Jesus.
GUTIERREZ, JR., J.:
This is a petition for certiorari to set aside the order of respondent Hon. Jose
C. Colayco, Presiding Judge Court of First Instance of Manila, Branch XXI
disallowing the probate of the holographic Will of the deceased Bibiana
Roxas de Jesus.
The antecedent facts which led to the filing of this petition are undisputed.
After the death of spouses Andres G. de Jesus and Bibiana Roxas de Jesus,
Special Proceeding No. 81503 entitled "In the Matter of the Intestate Estate
of Andres G. de Jesus and Bibiana Roxas de Jesus" was filed by petitioner
Simeon R. Roxas, the brother of the deceased Bibiana Roxas de Jesus.
On March 26, 1973, petitioner Simeon R. Roxas was appointed
administrator. After Letters of Administration had been granted to the
petitioner, he delivered to the lower court a document purporting to be the
holographic Will of the deceased Bibiana Roxas de Jesus. On May 26, 1973,
respondent Judge Jose Colayco set the hearing of the probate of the
holographic Win on July 21, 1973.
Petitioner Simeon R. Roxas testified that after his appointment as
administrator, he found a notebook belonging to the deceased Bibiana R. de
Jesus and that on pages 21, 22, 23 and 24 thereof, a letter-win addressed to
her children and entirely written and signed in the handwriting of the
deceased Bibiana R. de Jesus was found. The will is dated "FEB./61 " and
states: "This is my win which I want to be respected although it is not written
by a lawyer. ...
The testimony of Simeon R. Roxas was corroborated by the testimonies of
Pedro Roxas de Jesus and Manuel Roxas de Jesus who likewise testified
that the letter dated "FEB./61 " is the holographic Will of their deceased
mother, Bibiana R. de Jesus. Both recognized the handwriting of their mother
and positively Identified her signature. They further testified that their
deceased mother understood English, the language in which the holographic
Will is written, and that the date "FEB./61 " was the date when said Will was
executed by their mother.
SUCCESSION (10 October 2018 Cases) Page 1
probate" assailing the purported holographic Will of Bibiana R. de Jesus
because a it was not executed in accordance with law, (b) it was executed
through force, intimidation and/or under duress, undue influence and
improper pressure, and (c) the alleged testatrix acted by mistake and/or did
not intend, nor could have intended the said Will to be her last Will and
testament at the time of its execution.
On August 24, 1973, respondent Judge Jose C. Colayco issued an order
allowing the probate of the holographic Will which he found to have been
duly executed in accordance with law.
Respondent Luz Roxas de Jesus filed a motion for reconsideration alleging
inter alia that the alleged holographic Will of the deceased Bibiana R. de
Jesus was not dated as required by Article 810 of the Civil Code. She
contends that the law requires that the Will should contain the day, month
and year of its execution and that this should be strictly complied with.
On December 10, 1973, respondent Judge Colayco reconsidered his earlier
order and disallowed the probate of the holographic Will on the ground that
the word "dated" has generally been held to include the month, day, and
year. The dispositive portion of the order reads:
WHEREFORE, the document purporting to be the
holographic Will of Bibiana Roxas de Jesus, is hereby
disallowed for not having been executed as required by the
law. The order of August 24, 1973 is hereby set aside.
The only issue is whether or not the date "FEB./61 " appearing on the
holographic Will of the deceased Bibiana Roxas de Jesus is a valid
compliance with the Article 810 of the Civil Code which reads:
ART. 810. A person may execute a holographic will which
must be entirely written, dated, and signed by the hand of
the testator himself. It is subject to no other form, and may
be made in or out of the Philippines, and need not be
witnessed.
The petitioners contend that while Article 685 of the Spanish Civil Code and
Article 688 of the Old Civil Code require the testator to state in his
holographic Win the "year, month, and day of its execution," the present Civil
Code omitted the phrase Año mes y dia and simply requires that the
holographic Will should be dated. The petitioners submit that the liberal
construction of the holographic Will should prevail.
Respondent Luz Henson on the other hand submits that the purported
holographic Will is void for non-compliance with Article 810 of the New Civil
Code in that the date must contain the year, month, and day of its execution.
The respondent contends that Article 810 of the Civil Code was patterned
after Section 1277 of the California Code and Section 1588 of the Louisiana
Code whose Supreme Courts had consistently ruled that the required date
includes the year, month, and day, and that if any of these is wanting, the
holographic Will is invalid. The respondent further contends that the
petitioner cannot plead liberal construction of Article 810 of the Civil Code
because statutes prescribing the formalities to be observed in the execution
of holographic Wills are strictly construed.
We agree with the petitioner.
This will not be the first time that this Court departs from a strict and literal
application of the statutory requirements regarding the due execution of
Wills. We should not overlook the liberal trend of the Civil Code in the
manner of execution of Wills, the purpose of which, in case of doubt is to
prevent intestacy —
The underlying and fundamental objectives permeating the
provisions of the law on wigs in this Project consists in the
liberalization of the manner of their execution with the end in
view of giving the testator more freedom in expressing his
last wishes, but with sufficien safeguards and restrictions to
prevent the commission of fraud and the exercise of undue
and improper pressure and influence upon the testator.
This objective is in accord with the modem tendency with
respect to the formalities in the execution of wills. (Report of
the Code Commission, p. 103)
In Justice Capistrano's concurring opinion in Heirs of Raymundo Castro v.
Bustos (27 SCRA 327) he emphasized that:
xxx xxx xxx
... The law has a tender regard for the will of the testator
expressed in his last will and testament on the ground that
any disposition made by the testator is better than that which
the law can make. For this reason, intestate succession is
nothing more than a disposition based upon the presumed
will of the decedent.
Thus, the prevailing policy is to require satisfaction of the legal requirements
in order to guard against fraud and bad faith but without undue or
unnecessary curtailment of testamentary privilege Icasiano v. Icasiano, 11
SCRA 422). If a Will has been executed in substantial compliance with the
formalities of the law, and the possibility of bad faith and fraud in the exercise
thereof is obviated, said Win should be admitted to probate (Rey v.
Cartagena 56 Phil. 282). Thus,
xxx xxx xxx
... More than anything else, the facts and circumstances of
record are to be considered in the application of any given
rule. If the surrounding circumstances point to a regular
execution of the wilt and the instrument appears to have
been executed substantially in accordance with the
SUCCESSION (10 October 2018 Cases) Page 2
requirements of the law, the inclination should, in the
absence of any suggestion of bad faith, forgery or fraud, lean
towards its admission to probate, although the document
may suffer from some imperfection of language, or other
non-essential defect. ... (Leynez v. Leynez 68 Phil. 745).
If the testator, in executing his Will, attempts to comply with all the requisites,
although compliance is not literal, it is sufficient if the objective or purpose
sought to be accomplished by such requisite is actually attained by the form
followed by the testator.
The purpose of the solemnities surrounding the execution of Wills has been
expounded by this Court in Abangan v. Abanga 40 Phil. 476, where we ruled
that:
The object of the solemnities surrounding the execution of
wills is to close the door against bad faith and fraud, to avoid
substitution of wills and testaments and to guaranty their
truth and authenticity. ...
In particular, a complete date is required to provide against such
contingencies as that of two competing Wills executed on the same day, or of
a testator becoming insane on the day on which a Will was executed
(Velasco v. Lopez, 1 Phil. 720). There is no such contingency in this case.
We have carefully reviewed the records of this case and found no evidence
of bad faith and fraud in its execution nor was there any substitution of Wins
and Testaments. There is no question that the holographic Will of the
deceased Bibiana Roxas de Jesus was entirely written, dated, and signed by
the testatrix herself and in a language known to her. There is also no
question as to its genuineness and due execution. All the children of the
testatrix agree on the genuineness of the holographic Will of their mother and
that she had the testamentary capacity at the time of the execution of said
Will. The objection interposed by the oppositor-respondent Luz Henson is
that the holographic Will is fatally defective because the date "FEB./61 "
appearing on the holographic Will is not sufficient compliance with Article 810
of the Civil Code. This objection is too technical to be entertained.
As a general rule, the "date" in a holographic Will should include the day,
month, and year of its execution. However, when as in the case at bar, there
is no appearance of fraud, bad faith, undue influence and pressure and the
authenticity of the Will is established and the only issue is whether or not the
date "FEB./61" appearing on the holographic Will is a valid compliance with
Article 810 of the Civil Code, probate of the holographic Will should be
allowed under the principle of substantial compliance.
WHEREFORE, the instant petition is GRANTED. The order appealed from is
REVERSED and SET ASIDE and the order allowing the probate of the
holographic Will of the deceased Bibiana Roxas de Jesus is reinstated.
SO ORDERED.
G.R. Nos. 83843-44 April 5, 1990
IN THE MATTER OF THE PETITION TO APPROVE THE WILL OF
MELECIO LABRADOR. SAGRADO LABRADOR (Deceased), substituted
by ROSITA LABRADOR, ENRICA LABRADOR, and CRISTOBAL
LABRADOR, petitioners-appellants,
vs.
COURT OF APPEALS, 1 GAUDENCIO LABRADOR, and JESUS
LABRADOR, respondents-appellees.
Benjamin C. Santos Law Offices for petitioners.
Rodrigo V. Fontelera for private respondents.
PARAS, J.:
The sole issue in this case is whether or not the alleged holographic will of
one Melecio Labrador is dated, as provided for in Article 8102 of the New Civil
Code.
The antecedent and relevant facts are as follows: On June 10, 1972, Melecio
Labrador died in the Municipality of Iba, province of Zambales, where he was
residing, leaving behind a parcel of land designated as Lot No. 1916 under
Original Certificate of Title No. P-1652, and the following heirs, namely:
Sagrado, Enrica, Cristobal, Jesus, Gaudencio, Josefina, Juliana, Hilaria and
Jovita, all surnamed Labrador, and a holographic will.
On July 28, 1975, Sagrado Labrador (now deceased but substituted by his
heirs), Enrica Labrador and Cristobal Labrador, filed in the court a quo a
petition for the probate docketed as Special Proceeding No. 922-I of the
alleged holographic will of the late Melecio Labrador.
Subsequently, on September 30, 1975, Jesus Labrador (now deceased but
substituted by his heirs), and Gaudencio Labrador filed an opposition to the
petition on the ground that the will has been extinguished or revoked by
implication of law, alleging therein that on September 30, 1971, that is, before
Melecio's death, for the consideration of Six Thousand (P6,000) Pesos,
testator Melecio executed a Deed of Absolute Sale, selling, transferring and
conveying in favor of oppositors Jesus and Gaudencio Lot No. 1916 and that
as a matter of fact, O.C.T. No. P-1652 had been cancelled by T.C.T. No. T-
21178. Earlier however, in 1973, Jesus Labrador sold said parcel of land to
Navat for only Five Thousand (P5,000) Pesos. (Rollo, p. 37)
Sagrado thereupon filed, on November 28, 1975, against his brothers,
Gaudencio and Jesus, for the annulment of said purported Deed of Absolute
Sale over a parcel of land which Sagrado allegedly had already acquired by
devise from their father Melecio Labrador under a holographic will executed
on March 17, 1968, the complaint for annulment docketed as Civil Case No.
934-I, being premised on the fact that the aforesaid Deed of Absolute Sale is
fictitious.
After both parties had rested and submitted their respective evidence, the
trial court rendered a joint decision dated February 28, 1985, allowing the
SUCCESSION (10 October 2018 Cases) Page 3
probate of the holographic will and declaring null and void the Deed of
Absolute sale. The court a quo had also directed the respondents (the
defendants in Civil Case No. 934-I) to reimburse to the petitioners the sum of
P5,000.00 representing the redemption price for the property paid by the
plaintiff-petitioner Sagrado with legal interest thereon from December 20,
1976, when it was paid to vendee a retro.
Respondents appealed the joint decision to the Court of Appeals, which on
March 10, 1988 modified said joint decision of the court a quo by denying the
allowance of the probate of the will for being undated and reversing the order
of reimbursement. Petitioners' Motion for Reconsideration of the aforesaid
decision was denied by the Court of Appeals, in the resolution of June 13,
1988. Hence, this petition.
Petitioners now assign the following errors committed by respondent court, to
wit:
I
THE COURT OF APPEALS ERRED IN NOT ALLOWING AND
APPROVING THE PROBATE OF THE HOLOGRAPHIC WILL OF
THE TESTATOR MELECIO LABRADOR; and
II
THE COURT OF APPEALS ERRED IN FINDING THAT THE
ORDER OF THE LOWER COURT DIRECTING THE
REIMBURSEMENT OF THE FIVE THOUSAND PESOS
REPRESENTING THE REDEMPTION PRICE WAS ERRONEOUS.
The alleged undated holographic will written in Ilocano translated into
English, is quoted as follows:
ENGLISH INTERPRETATION OF THE WILL OF THE
LATE MELECIO LABRADOR WRITTEN IN ILOCANO
BY ATTY. FIDENCIO L. FERNANDEZ
I — First Page
This is also where it appears in writing of the place which is assigned
and shared or the partition in favor of SAGRADO LABRADOR which
is the fishpond located and known place as Tagale.
And this place that is given as the share to him, there is a
measurement of more or less one hectare, and the boundary at the
South is the property and assignment share of ENRICA LABRADOR,
also their sister, and the boundary in the West is the sea, known as
the SEA as it is, and the boundary on the NORTH is assignment
belonging to CRISTOBAL LABRADOR, who likewise is also their
brother. That because it is now the time for me being now ninety
three (93) years, then I feel it is the right time for me to partition the
fishponds which were and had been bought or acquired by us,
meaning with their two mothers, hence there shall be no differences
among themselves, those among brothers and sisters, for it is I
myself their father who am making the apportionment and delivering
 to each and everyone of them the said portion and assignment so
that there shall not be any cause of troubles or differences among
the brothers and sisters.
II — Second Page
And this is the day in which we agreed that we are making the
partitioning and assigning the respective assignment of the said
fishpond, and this being in the month of March, 17th day, in the year
1968, and this decision and or instruction of mine is the matter to be
followed. And the one who made this writing is no other than
MELECIO LABRADOR, their father.
Now, this is the final disposition that I am making in writing and it is
this that should be followed and complied with in order that any
differences or troubles may be forestalled and nothing will happen
along these troubles among my children, and that they will be in
good relations among themselves, brothers and sisters;
And those improvements and fruits of the land; mangoes, bamboos
and all coconut trees and all others like the other kind of bamboo by
name of Bayog, it is their right to get if they so need, in order that
there shall be nothing that anyone of them shall complain against the
other, and against anyone of the brothers and sisters.
III — THIRD PAGE
And that referring to the other places of property, where the said
property is located, the same being the fruits of our earnings of the
two mothers of my children, there shall be equal portion of each
share among themselves, and or to be benefitted with all those
property, which property we have been able to acquire.
That in order that there shall be basis of the truth of this writing
(WILL) which I am here hereof manifesting of the truth and of the
fruits of our labor which their two mothers, I am signing my signature
below hereof, and that this is what should be complied with, by all
the brothers and sisters, the children of their two mothers —
JULIANA QUINTERO PILARISA and CASIANA AQUINO
VILLANUEVA Your father who made this writing (WILL), and he is,
MELECIO LABRADOR y RALUTIN (p. 46, Rollo)
The petition, which principally alleges that the holographic will is really dated,
although the date is not in its usual place, is impressed with merit.
The will has been dated in the hand of the testator himself in perfect
compliance with Article 810.1âwphi1 It is worthy of note to quote the first
paragraph of the second page of the holographic will, viz:
And this is the day in which we agreed that we are making the
partitioning and assigning the respective assignment of the said
fishpond, and this being in the month of March, 17th day, in the year
1968, and this decision and or instruction of mine is the matter to be
followed. And the one who made this writing is no other than
SUCCESSION (10 October 2018 Cases) Page 4
MELECIO LABRADOR, their father. (emphasis supplied) (p.
46, Rollo)
The law does not specify a particular location where the date should be
placed in the will. The only requirements are that the date be in the will itself
and executed in the hand of the testator. These requirements are present in
the subject will.
Respondents claim that the date 17 March 1968 in the will was when the
testator and his beneficiaries entered into an agreement among themselves
about "the partitioning and assigning the respective assignments of the said
fishpond," and was not the date of execution of the holographic will; hence,
the will is more of an "agreement" between the testator and the beneficiaries
thereof to the prejudice of other compulsory heirs like the respondents. This
was thus a failure to comply with Article 783 which defines a will as "an act
whereby a person is permitted, with the formalities prescribed by law, to
control to a certain degree the disposition of his estate, to take effect after his
death."
Respondents are in error. The intention to show 17 March 1968 as the date
of the execution of the will is plain from the tenor of the succeeding words of
the paragraph. As aptly put by petitioner, the will was not an agreement but a
unilateral act of Melecio Labrador who plainly knew that what he was
executing was a will. The act of partitioning and the declaration that such
partitioning as the testator's instruction or decision to be followed reveal that
Melecio Labrador was fully aware of the nature of the estate property to be
disposed of and of the character of the testamentary act as a means to
control the disposition of his estate.
Anent the second issue of finding the reimbursement of the P5,000
representing the redemption price as erroneous, respondent court's
conclusion is incorrect. When private respondents sold the property
(fishpond) with right to repurchase to Navat for P5,000, they were actually
selling property belonging to another and which they had no authority to sell,
rendering such sale null and void. Petitioners, thus "redeemed" the property
from Navat for P5,000, to immediately regain possession of the property for
its disposition in accordance with the will. Petitioners therefore deserve to be
reimbursed the P5,000.
PREMISES CONSIDERED, the decision of the Court of Appeals dated
March 10, 1988 is hereby REVERSED. The holographic will of Melecio
Labrador is APPROVED and ALLOWED probate. The private respondents
are directed to REIMBURSE the petitioners the sum of Five Thousand Pesos
(P5,000.00).
SO ORDERED.
G.R. No. 106720 September 15, 1994
SPOUSES ROBERTO AND THELMA AJERO, petitioners,
vs.
THE COURT OF APPEALS AND CLEMENTE SAND, respondents.
Miguel D. Larida for petitioners.
Montilla Law Office for private respondent.
PUNO, J.:
This is an appeal by certiorari from the Decision of the Court of
Appeals 1 in CA-G.R. CV No. 22840, dated March 30, 1992, the dispositive
portion of which reads;
PREMISES CONSIDERED, the questioned decision of
November 19, 1988 of the trial court is hereby REVERSED
and SET ASIDE, and the petition for probate is hereby
DISMISSED. No costs.
The earlier Decision was rendered by the RTC of Quezon City,
Branch 94, 2 in Sp. Proc. No. Q-37171, and the instrument submitted
for probate is the holographic will of the late Annie Sand, who died
on November 25, 1982.
In the will, decedent named as devisees, the following: petitioners Roberto
and Thelma Ajero, private respondent Clemente Sand, Meriam S. Arong,
Leah Sand, Lilia Sand, Edgar Sand, Fe Sand, Lisa S. Sand, and Dr. Jose
Ajero, Sr., and their children.
On January 20, 1983, petitioners instituted Sp. Proc. No. Q-37171, for
allowance of decedent's holographic will. They alleged that at the time of its
execution, she was of sound and disposing mind, not acting under duress,
fraud or undue influence, and was in every respect capacitated to dispose of
her estate by will.
Private respondent opposed the petition on the grounds that: neither the
testament's body nor the signature therein was in decedent's handwriting; it
contained alterations and corrections which were not duly signed by
decedent; and, the will was procured by petitioners through improper
pressure and undue influence. The petition was likewise opposed by Dr. Jose
Ajero. He contested the disposition in the will of a house and lot located in
Cabadbaran, Agusan Del Norte. He claimed that said property could not be
conveyed by decedent in its entirety, as she was not its sole owner.
Notwithstanding the oppositions, the trial court admitted the decedent's
holographic will to probate. It found, inter alia:
Considering then that the probate proceedings herein must
decide only the question of identity of the will, its due
execution and the testamentary capacity of the testatrix, this
probate court finds no reason at all for the disallowance of
the will for its failure to comply with the formalities prescribed
by law nor for lack of testamentary capacity of the testatrix.
For one, no evidence was presented to show that the will in
question is different from the will actually executed by the
testatrix. The only objections raised by the oppositors . . . are
that the will was not written in the handwriting of the testatrix
SUCCESSION (10 October 2018 Cases) Page 5
which properly refers to the question of its due execution,
and not to the question of identity of will. No other will was
alleged to have been executed by the testatrix other than the
will herein presented. Hence, in the light of the evidence
adduced, the identity of the will presented for probate must
be accepted, i.e., the will submitted in Court must be
deemed to be the will actually executed by the testatrix.
xxx xxx xxx
While the fact that it was entirely written, dated and signed in
the handwriting of the testatrix has been disputed, the
petitioners, however, have satisfactorily shown in Court that
the holographic will in question was indeed written entirely,
dated and signed in the handwriting of the testatrix. Three (3)
witnesses who have convincingly shown knowledge of the
handwriting of the testatrix have been presented and have
explicitly and categorically identified the handwriting with
which the holographic will in question was written to be the
genuine handwriting and signature of the testatrix. Given
then the aforesaid evidence, the requirement of the law that
the holographic will be entirely written, dated and signed in
the handwriting of the testatrix has been complied with.
xxx xxx xxx
As to the question of the testamentary capacity of the
testratix, (private respondent) Clemente Sand himself has
testified in Court that the testatrix was completely in her
sound mind when he visited her during her birthday
celebration in 1981, at or around which time the holographic
will in question was executed by the testatrix. To be of sound
mind, it is sufficient that the testatrix, at the time of making
the will, knew the value of the estate to be disposed of, the
proper object of her bounty, and the characterof the
testamentary act . . . The will itself shows that the testatrix
even had detailed knowledge of the nature of her estate.
She even identified the lot number and square meters of the
lots she had conveyed by will. The objects of her bounty
were likewise identified explicitly. And considering that she
had even written a nursing book which contained the law
and jurisprudence on will and succession, there is more than
sufficient showing that she knows the character of the
testamentary act.
In this wise, the question of identity of the will, its due
execution and the testamentary capacity of the testatrix has
to be resolved in favor of the allowance of probate of the will
submitted herein.
 Likewise, no evidence was presented to show sufficient
reason for the disallowance of herein holographic will. While
it was alleged that the said will was procured by undue and
improper pressure and influence on the part of the
beneficiary or of some other person, the evidence adduced
have not shown any instance where improper pressure or
influence was exerted on the testatrix. (Private respondent)
Clemente Sand has testified that the testatrix was still alert
at the time of the execution of the will, i.e., at or around the
time of her birth anniversary celebration in 1981. It was also
established that she is a very intelligent person and has a
mind of her own. Her independence of character and to
some extent, her sense of superiority, which has been
testified to in Court, all show the unlikelihood of her being
unduly influenced or improperly pressured to make the
aforesaid will. It must be noted that the undue influence or
improper pressure in question herein only refer to the
making of a will and not as to the specific testamentary
provisions therein which is the proper subject of another
proceeding. Hence, under the circumstances, this Court
cannot find convincing reason for the disallowance of the will
herein.
Considering then that it is a well-established doctrine in the
law on succession that in case of doubt, testate succession
should be preferred over intestate succession, and the fact
that no convincing grounds were presented and proven for
the disallowance of the holographic will of the late Annie
Sand, the aforesaid will submitted herein must be admitted
to probate. 3 (Citations omitted.)
On appeal, said Decision was reversed, and the petition for probate of
decedent's will was dismissed. The Court of Appeals found that, "the
holographic will fails to meet the requirements for its validity." 4 It held that the
decedent did not comply with Articles 813 and 814 of the New Civil Code,
which read, as follows:
Art. 813: When a number of dispositions appearing in a
holographic will are signed without being dated, and the last
disposition has a signature and date, such date validates the
dispositions preceding it, whatever be the time of prior
dispositions.
Art. 814: In case of insertion, cancellation, erasure or
alteration in a holographic will, the testator must authenticate
the same by his full signature.
SUCCESSION (10 October 2018 Cases) Page 6
It alluded to certain dispositions in the will which were either unsigned and
undated, or signed but not dated. It also found that the erasures, alterations
and cancellations made thereon had not been authenticated by decedent.
Thus, this appeal which is impressed with merit.
Section 9, Rule 76 of the Rules of Court provides that will shall be disallowed
in any of the following cases:
(a) If not executed and attested as required by law;
(b) If the testator was insane, or otherwise mentally
incapable to make a will, at the time of its execution;
(c) If it was executed under duress, or the influence of fear,
or threats;
(d) If it was procured by undue and improper pressure and
influence, on the part of the beneficiary, or of some other
person for his benefit;
(e) If the signature of the testator was procured by fraud or
trick, and he did not intend that the instrument should be his
will at the time of fixing his signature thereto.
In the same vein, Article 839 of the New Civil Code reads:
Art. 839: The will shall be disallowed in any of the following
cases;
(1) If the formalities required by law have not
been complied with;
(2) If the testator was insane, or otherwise
mentally incapable of making a will, at the
time of its execution;
(3) If it was executed through force or under
duress, or the influence of fear, or threats;
(4) If it was procured by undue and improper
pressure and influence, on the part of the
beneficiary or of some other person;
(5) If the signature of the testator was
procured by fraud;
(6) If the testator acted by mistake or did not
intend that the instrument he signed should
be his will at the time of affixing his signature
thereto.
These lists are exclusive; no other grounds can serve to disallow a
will. 5 Thus, in a petition to admit a holographic will to probate, the only issues
to be resolved are: (1) whether the instrument submitted is, indeed, the
decedent's last will and testament; (2) whether said will was executed in
accordance with the formalities prescribed by law; (3) whether the decedent
had the necessary testamentary capacity at the time the will was executed;
and, (4) whether the execution of the will and its signing were the voluntary
acts of the decedent. 6
In the case at bench, respondent court held that the holographic will of Anne
Sand was not executed in accordance with the formalities prescribed by law.
It held that Articles 813 and 814 of the New Civil Code, ante, were not
complied with, hence, it disallowed the probate of said will. This is erroneous.
We reiterate what we held in Abangan vs. Abangan, 40 Phil. 476, 479
(1919), that:
The object of the solemnities surrounding the execution of
wills is to close the door against bad faith and fraud, to avoid
substitution of wills and testaments and to guaranty their
truth and authenticity. Therefore, the laws on this subject
should be interpreted in such a way as to attain these
primordial ends. But, on the other hand, also one must not
lose sight of the fact that it is not the object of the law to
restrain and curtail the exercise of the right to make a will.
So when an interpretation already given assures such ends,
any other interpretation whatsoever, that adds nothing but
demands more requisites entirely unnecessary, useless and
frustrative of the testator's last will, must be disregarded.
For purposes of probating non-holographic wills, these formal solemnities
include the subscription, attestation, and acknowledgment requirements
under Articles 805 and 806 of the New Civil Code.
In the case of holographic wills, on the other hand, what assures authenticity
is the requirement that they be totally autographic or handwritten by the
testator himself, 7 as provided under Article 810 of the New Civil Code, thus:
A person may execute a holographic will which must be
entirely written, dated, and signed by the hand of the testator
himself. It is subject to no other form, and may be made in or
out of the Philippines, and need not be witnessed.
(Emphasis supplied.)
Failure to strictly observe other formalities will not result in the
disallowance of a holographic will that is unquestionably handwritten
by the testator.
A reading of Article 813 of the New Civil Code shows that its requirement
affects the validity of the dispositions contained in the holographic will, but
not its probate. If the testator fails to sign and date some of the dispositions,
the result is that these dispositions cannot be effectuated. Such failure,
however, does not render the whole testament void.
Likewise, a holographic will can still be admitted to probate, notwithstanding
non-compliance with the provisions of Article 814. In the case of Kalaw
vs. Relova 132 SCRA 237 242 (1984), this Court held:
Ordinarily, when a number of erasures, corrections, and
interlineations made by the testator in a holographic Will
have not been noted under his signature, . . . the Will is not
thereby invalidated as a whole, but at most only as respects
SUCCESSION (10 October 2018 Cases) Page 7
the particular words erased, corrected or interlined. Manresa
gave an identical commentary when he said "la omission de
la salvedad no anula el testamento, segun la regla de
jurisprudencia establecida en la sentencia de 4 de Abril de
1985." 8 (Citations omitted.)
Thus, unless the unauthenticated alterations, cancellations or insertions were
made on the date of the holographic will or on testator's signature, 9 their
presence does not invalidate the will itself. 10 The lack of authentication will
only result in disallowance of such changes.
It is also proper to note that the requirements of authentication of changes
and signing and dating of dispositions appear in provisions (Articles 813 and
814) separate from that which provides for the necessary conditions for the
validity of the holographic will (Article 810). The distinction can be traced to
Articles 678 and 688 of the Spanish Civil Code, from which the present
provisions covering holographic wills are taken. They read as follows:
Art. 678: A will is called holographic when the testator writes
it himself in the form and with the requisites required in
Article 688.
Art. 688: Holographic wills may be executed only by persons
of full age.
In order that the will be valid it must be drawn on stamped
paper corresponding to the year of its execution, written in its
entirety by the testator and signed by him, and must contain
a statement of the year, month and day of its execution.
If it should contain any erased, corrected, or interlined
words, the testator must identify them over his signature.
Foreigners may execute holographic wills in their own
language.
This separation and distinction adds support to the interpretation that only the
requirements of Article 810 of the New Civil Code — and not those found in
Articles 813 and 814 of the same Code — are essential to the probate of a
holographic will.
The Court of Appeals further held that decedent Annie Sand could not validly
dispose of the house and lot located in Cabadbaran, Agusan del Norte, in its
entirety. This is correct and must be affirmed.
As a general rule, courts in probate proceedings are limited to pass only
upon the extrinsic validity of the will sought to be probated. However, in
exceptional instances, courts are not powerless to do what the situation
constrains them to do, and pass upon certain provisions of the will. 11 In the
case at bench, decedent herself indubitably stated in her holographic will that
the Cabadbaran property is in the name of her late father, John H. Sand
(which led oppositor Dr. Jose Ajero to question her conveyance of the same
in its entirety). Thus, as correctly held by respondent court, she cannot validly
dispose of the whole property, which she shares with her father's other heirs.
IN VIEW WHEREOF, the instant petition is GRANTED. The Decision of the
Court of Appeals in CA-G.R. CV No. 22840, dated March 30, 1992, is
REVERSED and SET ASIDE, except with respect to the invalidity of the
disposition of the entire house and lot in Cabadbaran, Agusan del Norte. The
Decision of the Regional Trial Court of Quezon City, Branch 94 in Sp. Proc.
No. Q-37171, dated November 19, 1988, admitting to probate the
holographic will of decedent Annie Sand, is hereby REINSTATED, with the
above qualification as regards the Cabadbaran property. No costs.
SO ORDERED.
G.R. No. L-40207 September 28, 1984
ROSA K. KALAW, petitioner,
vs.
HON. JUDGE BENJAMIN RELOVA, Presiding Judge of the CFI of
Batangas, Branch VI, Lipa City, and GREGORIO K. KALAW, respondents.
Leandro H. Fernandez for petitioner.
Antonio Quintos and Jose M. Yacat for respondents.
MELENCIO-HERRERA, J.:
On September 1, 1971, private respondent GREGORIO K. KALAW, claiming
to be the sole heir of his deceased sister, Natividad K. Kalaw, filed a petition
before the Court of First Instance of Batangas, Branch VI, Lipa City, for the
probate of her holographic Will executed on December 24, 1968.
The holographic Will reads in full as follows:
My Last will and Testament
In the name of God, Amen.
I Natividad K. Kalaw Filipino 63years of age, single, and a resident of Lipa
City, being of sound and disposing mind and memory, do hereby declare thus
to be my last will and testament.
1. It is my will that I'll be burried in the cemetery of the catholic church of Lipa
City. In accordance with the rights of said Church, and that my executrix
hereinafter named provide and erect at the expose of my state a suitable
monument to perpetuate my memory.
xxx xxx xxx
The holographic Will, as first written, named ROSA K. Kalaw, a sister of the
testatrix as her sole heir. Hence, on November 10, 1971, petitioner ROSA K.
Kalaw opposed probate alleging, in substance, that the holographic Will
contained alterations, corrections, and insertions without the proper
authentication by the full signature of the testatrix as required by Article 814
of the Civil Code reading:
Art. 814. In case of any insertion, cancellation, erasure or
alteration in a holographic will the testator must authenticate
the same by his full signature.
ROSA's position was that the holographic Will, as first written, should be
given effect and probated so that she could be the sole heir thereunder.
SUCCESSION (10 October 2018 Cases) Page 8
After trial, respondent Judge denied probate in an Order, dated September 3,
197 3, reading in part:
The document Exhibit "C" was submitted to the National
Bureau of Investigation for examination. The NBI reported
that the handwriting, the signature, the insertions and/or
additions and the initial were made by one and the same
person. Consequently, Exhibit "C" was the handwriting of the
decedent, Natividad K. Kalaw. The only question is whether
the win, Exhibit 'C', should be admitted to probate although
the alterations and/or insertions or additions above-
mentioned were not authenticated by the full signature of the
testatrix pursuant to Art. 814 of the Civil Code. The petitioner
contends that the oppositors are estopped to assert the
provision of Art. 814 on the ground that they themselves
agreed thru their counsel to submit the Document to the NBI
FOR EXAMINATIONS. This is untenable. The parties did not
agree, nor was it impliedly understood, that the oppositors
would be in estoppel.
The Court finds, therefore, that the provision of Article 814 of
the Civil Code is applicable to Exhibit "C". Finding the
insertions, alterations and/or additions in Exhibit "C" not to
be authenticated by the full signature of the testatrix
Natividad K. Kalaw, the Court will deny the admission to
probate of Exhibit "C".
WHEREFORE, the petition to probate Exhibit "C" as the
holographic will of Natividad K. Kalaw is hereby denied.
SO ORDERED.
From that Order, GREGORIO moved for reconsideration arguing that since
the alterations and/or insertions were the testatrix, the denial to probate of
her holographic Will would be contrary to her right of testamentary
disposition. Reconsideration was denied in an Order, dated November 2,
1973, on the ground that "Article 814 of the Civil Code being , clear and
explicit, (it) requires no necessity for interpretation."
From that Order, dated September 3, 1973, denying probate, and the Order
dated November 2, 1973 denying reconsideration, ROSA filed this Petition
for Review on certiorari on the sole legal question of whether or not
the original unaltered text after subsequent alterations and insertions were
voided by the Trial Court for lack of authentication by the full signature of the
testatrix, should be probated or not, with her as sole heir.
Ordinarily, when a number of erasures, corrections, and interlineations made
by the testator in a holographic Will litem not been noted under his signature,
... the Will is not thereby invalidated as a whole, but at most only as respects
the particular words erased, corrected or interlined.1 Manresa gave an
Identical commentary when he said "la omision de la salvedad no anula el
testamento, segun la regla de jurisprudencia establecida en la sentencia de
4 de Abril de 1895." 2
However, when as in this case, the holographic Will in dispute had only one
substantial provision, which was altered by substituting the original heir with
another, but which alteration did not carry the requisite of full authentication
by the full signature of the testator, the effect must be that the entire Will is
voided or revoked for the simple reason that nothing remains in the Will after
that which could remain valid. To state that the Will as first written should be
given efficacy is to disregard the seeming change of mind of the testatrix. But
that change of mind can neither be given effect because she failed to
authenticate it in the manner required by law by affixing her full signature,
The ruling in Velasco, supra, must be held confined to such insertions,
cancellations, erasures or alterations in a holographic Will, which affect only
the efficacy of the altered words themselves but not the essence and validity
of the Will itself. As it is, with the erasures, cancellations and alterations
made by the testatrix herein, her real intention cannot be determined with
certitude. As Manresa had stated in his commentary on Article 688 of the
Spanish Civil Code, whence Article 814 of the new Civil Code was derived:
... No infringe lo dispuesto en este articulo del Codigo (el
688) la sentencia que no declara la nulidad de un
testamento olografo que contenga palabras tachadas,
enmendadas o entre renglones no salvadas por el testador
bajo su firnia segun previene el parrafo tercero del mismo,
porque, en realidad, tal omision solo puede afectar a la
validez o eficacia de tales palabras, y nunca al testamento
mismo, ya por estar esa disposicion en parrafo aparte de
aquel que determine las condiciones necesarias para la
validez del testamento olografo, ya porque, de admitir lo
contrario, se Ilegaria al absurdo de que pequefias
enmiendas no salvadas, que en nada afectasen a la parte
esencial y respectiva del testamento, vinieran a anular este,
y ya porque el precepto contenido en dicho parrafo ha de
entenderse en perfecta armonia y congruencia con el art. 26
de la ley del Notariado que declara nulas las adiciones
apostillas entrerrenglonados, raspaduras y tachados en las
escrituras matrices, siempre que no se salven en la forma
prevenida, paro no el documento que las contenga, y con
mayor motivo cuando las palabras enmendadas, tachadas,
o entrerrenglonadas no tengan importancia ni susciten duda
alguna acerca del pensamiento del testador, o constituyan
meros accidentes de ortografia o de purez escrituraria, sin
trascendencia alguna(l).
Mas para que sea aplicable la doctrina de excepcion
contenida en este ultimo fallo, es preciso que las
SUCCESSION (10 October 2018 Cases) Page 9
tachaduras, enmiendas o entrerrenglonados sin salvar saan
de pala bras que no afecter4 alteren ni uarien de modo
substancial la express voluntad del testador manifiesta en el
documento. Asi lo advierte la sentencia de 29 de Noviembre
de 1916, que declara nulo un testamento olografo por no
estar salvada por el testador la enmienda del guarismo
ultimo del año en que fue extendido3(Emphasis ours).
WHEREFORE, this Petition is hereby dismissed and the Decision of
respondent Judge, dated September 3, 1973, is hereby affirmed in toto. No
costs.
SO ORDERED.
Plana, Gutierrez, Jr. and De la Fuente, JJ., concur.
Relova, J., took no part.
Separate Opinions
TEEHANKEE, J., concurring:
I concur. Rosa, having appealed to this Court on a sole question of law, is
bound by the trial court's factual finding that the peculiar alterations in the
holographic will crossing out Rosa's name and instead inserting her brother
Gregorio's name as sole heir and "sole executrix" were made by the testatrix
in her own handwriting. (I find it peculiar that the testatrix who was obviously
an educated person would unthinkingly make such crude alterations instead
of consulting her lawyer and writing an entirely new holographic wig in order
to avoid any doubts as to her change of heir. It should be noted that the first
alteration crossing out "sister Rosa K. Kalaw" and inserting "brother Gregorio
Kalaw" as sole heir is not even initialed by the testatrix. Only the second
alteration crossing out "sister Rosa K. Kalaw" and inserting "brother Gregorio
Kalaw" as "sole executrix" is initialed.) Probate of the radically altered will
replacing Gregorio for Rosa as sole heir is properly denied, since the same
was not duly authenticated by the full signature of the executrix as
mandatorily required by Article 814 of the Civil Code. The original unaltered
will naming Rosa as sole heir cannot, however, be given effect in view of the
trial court's factual finding that the testatrix had by her own handwriting
substituted Gregorio for Rosa, so that there is no longer any will naming
Rosa as sole heir. The net result is that the testatrix left no valid will and both
Rosa and Gregorio as her next of kill succeed to her intestate estate.
Separate Opinions
TEEHANKEE, J., concurring:
I concur. Rosa, having appealed to this Court on a sole question of law, is
bound by the trial court's factual finding that the peculiar alterations in the
holographic will crossing out Rosa's name and instead inserting her brother
Gregorio's name as sole heir and "sole executrix" were made by the testatrix
in her own handwriting. (I find it peculiar that the testatrix who was obviously
an educated person would unthinkingly make such crude alterations instead
of consulting her lawyer and writing an entirely new holographic wig in order Sr. .............................................
to avoid any doubts as to her change of heir. It should be noted that the first
alteration crossing out "sister Rosa K. Kalaw" and inserting "brother Gregorio
Kalaw" as sole heir is not even initialed by the testatrix. Only the second
alteration crossing out "sister Rosa K. Kalaw" and inserting "brother Gregorio Fausto E. 2 Bahagi
Kalaw" as "sole executrix" is initialed.) Probate of the radically altered will Gan .........................................................
replacing Gregorio for Rosa as sole heir is properly denied, since the same
was not duly authenticated by the full signature of the executrix as
mandatorily required by Article 814 of the Civil Code. The original unaltered
will naming Rosa as sole heir cannot, however, be given effect in view of the Rosario E. 2 Bahagi
trial court's factual finding that the testatrix had by her own handwriting Gan .........................................................
substituted Gregorio for Rosa, so that there is no longer any will naming
Rosa as sole heir. The net result is that the testatrix left no valid will and both
Rosa and Gregorio as her next of kill succeed to her intestate estate.
G.R. No. L-12190 August 30, 1958 Filomena 1 Bahagi
TESTATE ESTATE OF FELICIDAD ESGUERRA ALTO-YAP deceased. Alto ..........................................................
FAUSTO E. GAN, petitioner-appellant,
vs.
ILDEFONSO YAP, oppositor-appellee.
Benedicto C. Belran, Crispin D. Baizas and Roberto H. Benitez for appellant. Beatriz 1 Bahagi
Arturo M. Tolentino for appellee. Alto ..............................................................
BENGZON, J.:
On November 20, 1951, Felicidad Esguerra Alto Yap died of heart failure in
the University of Santo Tomas Hospital, leaving properties in Pulilan, At ang aking lahat ng ibang kayamanan sa Maynila at iba panglugar
Bulacan, and in the City of Manila. ay aking ipinamamana sa aking asawang si Idelfonso D. Yap sa
On March 17, 1952, Fausto E. Gan initiated them proceedings in the Manila kondisyong siya'y magpapagawa ng isang Health Center na
court of first instance with a petition for the probate of a holographic will nagkakahalaga ng di kukulangin sa halagang P60,000.00 sa bayan
allegedly executed by the deceased, substantially in these words: ng Pulilan, Bulacan, na nakaukit ang aking pangalang Felicidad
Esguerra-Alto. At kung ito ay may kakulangan man ay bahala na ang
aking asawa ang magpuno upang matupad ang aking kagustuhan.
Nobyembre 5, 1951.

(Lagda) Felicidad E. Alto-Yap.

Ako, si Felicidad E. Alto-Yap, may asawa, at ganap na pag-iisip, ay
nagsasalaysay na ang aking kayamanan sa bayan ng Pulilan,
Bulacan ay aking ipinamamana sa aking mga kamag-anakang
sumusunod:
Opposing the petition, her surviving husband Ildefonso Yap asserted that the
deceased had not left any will, nor executed any testament during her
lifetime.

Vicente Esguerra, 5 Bahagi

SUCCESSION (10 October 2018 Cases) Page 10

After hearing the parties and considering their evidence, the Hon. Ramon R.
San Jose, Judge,1 refused to probate the alleged will. A seventy-page motion
for reconsideration failed. Hence this appeal.
The will itself was not presented. Petitioner tried to establish its contents and
due execution by the statements in open court of Felina Esguerra, Primitivo
Reyes, Socorro Olarte and Rosario Gan Jimenez, whose testimonies may be
summarized as follows:
Sometime in 1950 after her last trip abroad, Felicidad Esguerra mentioned to
her first cousin, Vicente Esguerra, her desire to make a will. She confided
however that it would be useless if her husband discovered or knew about it.
Vicente consulted with Fausto E. Gan, nephew of Felicidad, who was then
preparing for the bar examinations. The latter replied it could be done without
any witness, provided the document was entirely in her handwriting, signed
and dated by her. Vicente Esguerra lost no time in transmitting the
information, and on the strength of it, in the morning of November 5, 1951, in
her residence at Juan Luna Street, Manila, Felicidad wrote, signed and dated
a holographic will substantially of the tenor above transcribed, in the
presence of her niece, Felina Esguerra (daughter of Vicente), who was
invited to read it. In the afternoon of that day, Felicidad was visited by a
distant relative, Primitivo Reyes, and she allowed him to read the will in the
presence of Felina Esguerra, who again read it.
Nine days later, he had other visitors: Socorro Olarte a cousin, and Rosario
Gan Jimenez, a niece. To these she showed the will, again in the presence of
Felina Esguerra, who read it for the third time.
When on November 19, 1951, Felicidad was confined at the U.S.T. Hospital
for her last illness, she entrusted the said will, which was contained in a
purse, to Felina Esguerra. But a few hours later, Ildefonso Yap, her husband,
asked Felina for the purse: and being afraid of him by reason of his well-
known violent temper, she delivered it to him. Thereafter, in the same day,
Ildefonso Yap returned the purse to Felina, only to demand it the next day
shortly before the death of Felicidad. Again, Felina handed it to him but not
before she had taken the purse to the toilet, opened it and read the will for
the last time.2
From the oppositor's proof it appears that Felicidad Esguerra had been
suffering from heart disease for several years before her death; that she had
been treated by prominent physicians, Dr. Agerico Sison, Dr. Agustin Liboro
and others; that in May 1950 husband and wife journeyed to the United
States wherein for several weeks she was treated for the disease; that
thereafter she felt well and after visiting interesting places, the couple
returned to this country in August 1950. However, her ailment recurred, she
suffered several attacks, the most serious of which happened in the early
morning of the first Monday of November 1951 (Nov. 5). The whole
household was surprised and alarmed, even the teachers of the Harvardian
Colleges occupying the lower floors and of by the Yap spouses. Physician's
SUCCESSION (10 October 2018 Cases) Page 11
help was hurriedly called, and Dr. Tanjuaquio arrived at about 8:00 a.m.,
found the patient hardly breathing, lying in bed, her head held high by her
husband. Injections and oxygen were administered. Following the doctor's
advice the patient stayed in bed, and did nothing the whole day, her husband
and her personal attendant, Mrs. Bantique, constantly at her side. These two
persons swore that Mrs. Felicidad Esguerra Yap made no will, and could
have made no will on that day.
The trial judge refused to credit the petitioner's evidence for several reasons,
the most important of which were these: (a) if according to his evidence, the
decedent wanted to keep her will a secret, so that her husband would not
know it, it is strange she executed it in the presence of Felina Esguerra,
knowing as she did that witnesses were unnecessary; (b) in the absence of a
showing that Felina was a confidant of the decedent it is hard to believe that
the latter would have allowed the former to see and read the will several
times; (c) it is improbable that the decedent would have permitted Primitivo
Reyes, Rosario Gan Jimenez and Socorro Olarte to read her will, when she
precisely wanted its contents to remain a secret during her lifetime; (d) it is
also improbable that her purpose being to conceal the will from her husband
she would carry it around, even to the hospital, in her purse which could for
one reason or another be opened by her husband; (e) if it is true that the
husband demanded the purse from Felina in the U.S.T. Hospital and that the
will was there, it is hard to believe that he returned it without destroying the
will, the theory of the petitioner being precisely that the will was executed
behind his back for fear he will destroy it.
In the face of these improbabilities, the trial judge had to accept the
oppositor's evidence that Felicidad did not and could not have executed such
holographic will.
In this appeal, the major portion of appellant's brief discussed the testimony
of the oppositor and of his witnesses in a vigorous effort to discredit them. It
appears that the same arguments, or most of them, were presented in the
motion to reconsider; but they failed to induce the court a quo to change its
mind. The oppositor's brief, on the other hand, aptly answers the criticisms.
We deem it unnecessary to go over the same matters, because in our
opinion the case should be decided not on the weakness of the opposition
but on the strength of the evidence of the petitioner, who has the burden of
proof.
The Spanish Civil Code permitted the execution of holographic wills along
with other forms. The Code of Civil Procedure (Act 190) approved August 7,
1901, adopted only one form, thereby repealing the other forms, including
holographic wills.
The New Civil Code effective in 1950 revived holographic wills in its arts.
810-814. "A person may execute a holographic will which must be entirely
written, dated, and signed by the hand of the testator himself. It is subject to
no other form and may be made in or out of the Philippines, and need not be
witnessed."
This is indeed a radical departure from the form and solemnities provided for
wills under Act 190, which for fifty years (from 1901 to 1950) required wills to
be subscribed by the testator and three credible witnesses in each and every
page; such witnesses to attest to the number of sheets used and to the fact
that the testator signed in their presence and that they signed in the
presence of the testator and of each other.
The object of such requirements it has been said, is to close the door against
bad faith and fraud, to prevent substitution of wills, to guarantee their truth
and authencity (Abangan vs. Abangan, 40 Phil., 476) and to avoid those who
have no right to succeed the testator would succeed him and be benefited
with the probate of same. (Mendoza vs. Pilapil, 40 Off. Gaz., 1855).
However, formal imperfections may be brushed aside when authenticity of
the instrument is duly proved. (Rodriguez vs Yap, 40 Off. Gaz. 1st Supp. No.
3 p. 194.)
Authenticity and due execution is the dominant requirements to be fulfilled
when such will is submitted to the courts for allowance. For that purpose the
testimony of one of the subscribing witnesses would be sufficient if there is
no opposition (Sec. 5, Rule 77). If there is, the three must testify, if available.
(Cabang vs. Delfinado, 34 Phil., 291; Tolentino vs. Francisco, 57 Phil., 742).
From the testimony of such witnesses (and of other additional witnesses) the
court may form its opinion as to the genuineness and authenticity of the
testament, and the circumstances its due execution.
Now, in the matter of holographic wills, no such guaranties of truth and
veracity are demanded, since as stated, they need no witnesses; provided
however, that they are "entirely written, dated, and signed by the hand of the
testator himself." The law, it is reasonable to suppose, regards the document
itself as material proof of authenticity, and as its own safeguard, since it could
at any time, be demonstrated to be — or not to be — in the hands of the
testator himself. "In the probate of a holographic will" says the New Civil
Code, "it shall be necessary that at least one witness who knows the
handwriting and signature of the testator explicitly declare that the will and
the signature are in the handwriting of the testator. If the will is contested, at
least three such witnesses shall be required. In the absence of any such
witnesses, (familiar with decedent's handwriting) and if the court deem it
necessary, expert testimony may be resorted to."
The witnesses so presented do not need to have seen the execution of the
holographic will. They may be mistaken in their opinion of the handwriting, or
they may deliberately lie in affirming it is in the testator's hand. However, the
oppositor may present other witnesses who also know the testator's
handwriting, or some expert witnesses, who after comparing the will with
other writings or letters of the deceased, have come to the conclusion that
such will has not been written by the hand of the deceased. (Sec. 50, Rule
SUCCESSION (10 October 2018 Cases) Page 12
123). And the court, in view of such contradictory testimony may use its own
visual sense, and decide in the face of the document, whether the will
submitted to it has indeed been written by the testator.
Obviously, when the will itself is not submitted, these means of opposition,
and of assessing the evidence are not available. And then the only guaranty
of authenticity3 — the testator's handwriting — has disappeared.
Therefore, the question presents itself, may a holographic will be probated
upon the testimony of witnesses who have allegedly seen it and who declare
that it was in the handwriting of the testator? How can the oppositor prove
that such document was not in the testator's handwriting? His witnesses who
know testator's handwriting have not examined it. His experts can not testify,
because there is no way to compare the alleged testament with other
documents admittedly, or proven to be, in the testator's hand. The oppositor
will, therefore, be caught between the upper millstone of his lack of
knowledge of the will or the form thereof, and the nether millstone of his
inability to prove its falsity. Again the proponent's witnesses may be honest
and truthful; but they may have been shown a faked document, and having
no interest to check the authenticity thereof have taken no pains to examine
and compare. Or they may be perjurers boldly testifying, in the knowledge
that none could convict them of perjury, because no one could prove that
they have not "been shown" a document which they believed was in the
handwriting of the deceased. Of course, the competency of such perjured
witnesses to testify as to the handwriting could be tested by exhibiting to
them other writings sufficiently similar to those written by the deceased; but
what witness or lawyer would not foresee such a move and prepare for it?
His knowledge of the handwriting established, the witness (or witnesses)
could simply stick to his statement: he has seen and read a document which
he believed was in the deceased's handwriting. And the court and the
oppositor would practically be at the mercy of such witness (or witnesses) not
only as to the execution, but also as to the contents of the will. Does the law
permit such a situation?
The Rules of Court, (Rule 77) approved in 1940 allow proof (and probate) of
a lost or destroyed will by secondary — evidence the testimony of witnesses,
in lieu of the original document. Yet such Rules could not have contemplated
holographic wills which could not then be validly made here. (See also Sec.
46, Rule 123; Art. 830-New Civil Code.)
Could Rule 77 be extended, by analogy, to holographic wills?
Spanish commentators agree that one of the greatest objections to the
holographic will is that it may be lost or stolen 4 — an implied admission that
such loss or theft renders it useless..
This must be so, because the Civil Code requires it to be protocoled and
presented to the judge, (Art. 689) who shall subscribe it and
require its identity to be established by the three witnesses who depose that
they have no reasonable doubt that the will was written by the testator (Art.
691). And if the judge considers that the identity of the will has been proven
he shall order that it be filed (Art. 693). All these, imply presentation of the will
itself. Art. 692 bears the same implication, to a greater degree. It requires
that the surviving spouse and the legitimate ascendants and descendants be
summoned so that they may make "any statement they may desire to submit
with respect to the authenticity of the will." As it is universally admitted that
the holographic will is usually done by the testator and by himself alone, to
prevent others from knowing either its execution or its contents, the above
article 692 could not have the idea of simply permitting such relatives to state
whether they know of the will, but whether in the face of the document
itself they think the testator wrote it. Obviously, this they can't do unless the
will itself is presented to the Court and to them.
Undoubtedly, the intention of the law is to give the near relatives the choice
of either complying with the will if they think it authentic, or to oppose it, if
they think it spurious.5 Such purpose is frustrated when the document is not
presented for their examination. If it be argued that such choice is not
essential, because anyway the relatives may oppose, the answer is that their
opposition will be at a distinct disadvantage, and they have the right and
privilege to comply with the will, if genuine, a right which they should not be
denied by withholding inspection thereof from them.
We find confirmation of these ideas--about exhibition of the document itself--
in the decision of the Supreme Court of Spain of June 5, 1925,
which denied protocolization or probate to a document containing
testamentary dispositions in the handwriting of the deceased, but apparently
mutilated, the signature and some words having been torn from it. Even in
the face of allegations and testimonial evidence (which was controverted),
ascribing the mutilation to the opponents of the will. The aforesaid tribunal
declared that, in accordance with the provision of the Civil Code (Spanish)
the will itself, whole and unmutilated, must be presented; otherwise, it shall
produce no effect.
Considerando que sentado lo anterior, y estableciendose en el
parrafo segundo del articulo 688 del Codigo civil, que para que sea
valido el testamento olografo debera estar escrito todo el y firmado
por testador, con expression del año, mes y dia en que se otorque,
resulta evidente que para la validez y eficacia de esos testamentos,
no basta la demostracion mas o menos cumplida de que cuando
se otorgaron se Ilenaron todos esos requisitos, sino que de la
expresada redaccion el precepto legal, y por el tiempo en que el
verbo se emplea, se desprende la necesidad de que el documento
se encuentre en dichas condiciones en el momento de ser
presentado a la Autoridad competente, para au adveracion y
protocolizacion; y como consecuencia ineludible de ello, forzoso es
affirmar que el de autos carece de validez y aficacia, por no
estarfirmado por el testador, cualquiera que sea la causa de la falta
SUCCESSION (10 October 2018 Cases) Page 13
de firma, y sin perjuicio de las acciones que puedan ejercitar los
perjudicados, bien para pedir indemnizacion por el perjuicio a la
persona culpable, si la hubiere, o su castigo en via criminal si
procediere, por constituir dicha omision un defecto
insubsanable . . . .
This holding aligns with the ideas on holographic wills in the Fuero Juzgo,
admittedly the basis of the Spanish Civil Code provisions on the matter. 6
PRECEDENTES LEGALES--Fuero Juzgo, libro segundo, titulo V, ley
15--E depues que los herederos e sus fijos ovieren esta manda,
fasta ... annos muestrenla al obispo de la tierra, o al juez fasta VI
meses y el obispo o el juez tomen otros tales tres escritos, que
fuesen fechos por su mano daquel que fizo la manda; e por aquellos
escriptos, si semjara la letra de la manda, sea confirmada la manda.
E depues que todo esto fuere connoscido, el obispo o el juez, o
otras testimonios confirmen el escripto de la manda otra vez, y en
esta manera vala la manda. (Art. 689, Scaevola--Codigo Civil.)
(According to the Fuero above, the will itself must be compared with
specimens of the testators handwriting.)
All of which can only mean: the courts will not distribute the property of the
deceased in accordance with his holographic will, unless they are shown his
handwriting and signature.7
Parenthetically, it may be added that even the French Civil Law considers the
loss of the holographic will to be fatal. (Planiol y Ripert, Derecho Civil
Frances, traduccion por Diaz Cruz, 1946, Tomo V, page 555).
Taking all the above circumstances together, we reach the conclusion that
the execution and the contents of a lost or destroyed holographic will may not
be proved by the bare testimony of witnesses who have seen and/or read
such will.8
Under the provisions of Art. 838 of the New Civil Code, we are empowered to
adopt this opinion as a Rule of Court for the allowance of such holographic
wills. We hesitate, however, to make this Rule decisive of this controversy,
simultaneously with its promulgation. Anyway, decision of the appeal may
rest on the sufficiency, rather the insufficiency, of the evidence presented by
petitioner Fausto E. Gan.
At this point, before proceeding further, it might be convenient to explain why,
unlike holographic wills, ordinary wills may be proved by testimonial evidence
when lost or destroyed. The difference lies in the nature of the wills. In the
first, the only guarantee of authenticity is the handwriting itself; in the second,
the testimony of the subscribing or instrumental witnesses (and of the notary,
now). The loss of the holographic will entails the loss of the only medium of
proof; if the ordinary will is lost, the subscribing witnesses are available to
authenticate.
In the case of ordinary wills, it is quite hard to convince three witnesses (four
with the notary) deliberately to lie. And then their lies could be checked and
exposed, their whereabouts and acts on the particular day, the likelihood that
they would be called by the testator, their intimacy with the testator, etc. And
if they were intimates or trusted friends of the testator they are not likely to
end themselves to any fraudulent scheme to distort his wishes. Last but not
least, they can not receive anything on account of the will.
Whereas in the case of holographic wills, if oral testimony were
admissible9 only one man could engineer the fraud this way: after making a
clever or passable imitation of the handwriting and signature of the
deceased, he may contrive to let three honest and credible witnesses see
and read the forgery; and the latter, having no interest, could easily fall for it,
and in court they would in all good faith affirm its genuineness and
authenticity. The will having been lost — the forger may have purposely
destroyed it in an "accident" — the oppositors have no way to expose the
trick and the error, because the document itself is not at hand. And
considering that the holographic will may consist of two or three pages,
and only one of them need be signed, the substitution of the unsigned pages,
which may be the most important ones, may go undetected.
If testimonial evidence of holographic wills be permitted, one more
objectionable feature — feasibility of forgery — would be added to the
several objections to this kind of wills listed by Castan, Sanchez Roman and
Valverde and other well-known Spanish Commentators and teachers of Civil
Law.10
One more fundamental difference: in the case of a lost will, the three
subscribing witnesses would be testifying to a fact which they saw, namely
the act of the testator of subscribing the will; whereas in the case of a lost
holographic will, the witnesses would testify as to their opinion of the
handwriting which they allegedly saw, an opinion which can not be tested in
court, nor directly contradicted by the oppositors, because the handwriting
itself is not at hand.
Turning now to the evidence presented by the petitioner, we find ourselves
sharing the trial judge's disbelief. In addition to the dubious circumstances
described in the appealed decision, we find it hard to believe that the
deceased should show her will precisely to relatives who had received
nothing from it: Socorro Olarte and Primitivo Reyes. These could pester her
into amending her will to give them a share, or threaten to reveal its
execution to her husband Ildefonso Yap. And this leads to another point: if
she wanted so much to conceal the will from her husband, why did she not
entrust it to her beneficiaries? Opportunity to do so was not lacking: for
instance, her husband's trip to Davao, a few days after the alleged execution
of the will.
In fine, even if oral testimony were admissible to establish and probate a lost
holographic will, we think the evidence submitted by herein petitioner is so
tainted with improbabilities and inconsistencies that it fails to measure up to
that "clear and distinct" proof required by Rule 77, sec. 6. 11
SUCCESSION (10 October 2018 Cases) Page 14
Wherefore, the rejection of the alleged will must be sustained.
Judgment affirmed, with costs against petitioner.
Paras, C. J., Padilla, Montemayor, Reyes, A., Bautista Angelo, Concepcion,
Reyes, J. B. L., Endencia and Felix, JJ.,concur.
G.R. No. L-58509 December 7, 1982
IN THE MATTER OF THE PETITION TO APPROVE THE WILL OF
RICARDO B. BONILLA deceased, MARCELA RODELAS, petitioner-
appellant,
vs.
AMPARO ARANZA, ET AL., oppositors-appellees, ATTY. LORENZO
SUMULONG, intervenor.
Luciano A. Joson for petitioner-appellant.
Cesar Paralejo for oppositor-appellee.
RELOVA, J.:
This case was certified to this Tribunal by the Court of Appeals for final
determination pursuant to Section 3, Rule 50 of the Rules of Court.
As found by the Court of Appeals:
... On January 11, 1977, appellant filed a petition with the
Court of First Instance of Rizal for the probate of the
holographic will of Ricardo B. Bonilla and the issuance of
letters testamentary in her favor. The petition, docketed as
Sp. Proc. No. 8432, was opposed by the appellees Amparo
Aranza Bonilla, Wilferine Bonilla Treyes Expedita Bonilla
Frias and Ephraim Bonilla on the following grounds:
(1) Appellant was estopped from claiming that the deceased
left a will by failing to produce the will within twenty days of
the death of the testator as required by Rule 75, section 2 of
the Rules of Court;
(2) The alleged copy of the alleged holographic will did not
contain a disposition of property after death and was not
intended to take effect after death, and therefore it was not a
will
(3) The alleged hollographic will itself,and not an alleged
copy thereof, must be produced, otherwise it would produce
no effect, as held in Gam v. Yap, 104 Phil. 509; and
(4 ) The deceased did not leave any will, holographic or
otherwise, executed and attested as required by law.
The appellees likewise moved for the consolidation of the
case with another case Sp. Proc. No, 8275). Their motion
was granted by the court in an order dated April 4, 1977.
On November 13, 1978, following the consolidation of the
cases, the appellees moved again to dismiss the petition for
the probate of the will. They argued that:
 (1) The alleged holographic was not a last will but merely an
instruction as to the management and improvement of the
schools and colleges founded by decedent Ricardo B.
Bonilla; and
(2) Lost or destroyed holographic wills cannot be proved by
secondary evidence unlike ordinary wills.
Upon opposition of the appellant, the motion to dismiss was
denied by the court in its order of February 23, 1979.
The appellees then filed a motion for reconsideration on the
ground that the order was contrary to law and settled
pronouncements and rulings of the Supreme Court, to which
the appellant in turn filed an opposition. On July 23, 1979,
the court set aside its order of February 23, 1979 and
dismissed the petition for the probate of the will of Ricardo B.
Bonilla. The court said:
... It is our considered opinion that once the original copy of
the holographic will is lost, a copy thereof cannot stand in
lieu of the original.
In the case of Gam vs. Yap, 104 Phil. 509, 522, the Supreme
Court held that 'in the matter of holographic wills the law, it is
reasonable to suppose, regards the document itself as the
material proof of authenticity of said wills.
MOREOVER, this Court notes that the alleged holographic
will was executed on January 25, 1962 while Ricardo B.
Bonilla died on May 13, 1976. In view of the lapse of more
than 14 years from the time of the execution of the will to the
death of the decedent, the fact that the original of the will
could not be located shows to our mind that the decedent
had discarded before his death his allegedly missing
Holographic Will.
Appellant's motion for reconsideration was denied. Hence, an appeal to the
Court of Appeals in which it is contended that the dismissal of appellant's
petition is contrary to law and well-settled jurisprudence.
On July 7, 1980, appellees moved to forward the case to this Court on the
ground that the appeal does not involve question of fact and alleged that the
trial court committed the following assigned errors:
I. THE LOWER COURT ERRED IN HOLDING THAT A LOST
HOLOGRAPHIC WILL MAY NOT BE PROVED BY A COPY
THEREOF;
II. THE LOWER COURT ERRED IN HOLDING THAT THE
DECEDENT HAS DISCARDED BEFORE HIS DEATH THE
MISSING HOLOGRAPHIC WILL;
III. THE LOWER COURT ERRED IN DISMISSING
APPELLANT'S WILL.
SUCCESSION (10 October 2018 Cases) Page 15
The only question here is whether a holographic will which was lost or cannot
be found can be proved by means of a photostatic copy. Pursuant to Article
811 of the Civil Code, probate of holographic wills is the allowance of the will
by the court after its due execution has been proved. The probate may be
uncontested or not. If uncontested, at least one Identifying witness is
required and, if no witness is available, experts may be resorted to. If
contested, at least three Identifying witnesses are required. However, if the
holographic will has been lost or destroyed and no other copy is available,
the will can not be probated because the best and only evidence is the
handwriting of the testator in said will. It is necessary that there be a
comparison between sample handwritten statements of the testator and the
handwritten will. But, a photostatic copy or xerox copy of the holographic will
may be allowed because comparison can be made with the standard writings
of the testator. In the case of Gam vs. Yap, 104 PHIL. 509, the Court ruled
that "the execution and the contents of a lost or destroyed holographic will
may not be proved by the bare testimony of witnesses who have seen and/or
read such will. The will itself must be presented; otherwise, it shall produce
no effect. The law regards the document itself as material proof of
authenticity." But, in Footnote 8 of said decision, it says that "Perhaps it may
be proved by a photographic or photostatic copy. Even a mimeographed or
carbon copy; or by other similar means, if any, whereby the authenticity of
the handwriting of the deceased may be exhibited and tested before the
probate court," Evidently, the photostatic or xerox copy of the lost or
destroyed holographic will may be admitted because then the authenticity of
the handwriting of the deceased can be determined by the probate court.
WHEREFORE, the order of the lower court dated October 3, 1979, denying
appellant's motion for reconsideration dated August 9, 1979, of the Order
dated July 23, 1979, dismissing her petition to approve the will of the late
Ricardo B. Bonilla, is hereby SET ASIDE.
SO ORDERED.
G.R. No. L-14003 August 5, 1960
FEDERICO AZAOLA, petitioner-appellant,
vs.
CESARIO SINGSON, oppositor-appellee.
F. Lavides and L.B. Alcuaz for appellant.
Vicente J. Cuna and P.S. Singson for appellee.
REYES, J.B.L., J.:
This appeal, taken on points of law from a decision rendered on 15 January
1958 by the Court of First Instance of Quezon City in its Special Proceedings
No. Q-2640, involves the determination of the quantity of evidence required
for the probate of a holographic will.
The established facts are thus summarized in the decision appealed from
(Rec. App. pp. 22-24):
"Briefly speaking, the following facts were established by the
petitioner; that on September 9, 1957, Fortunata S. Vda. de Yance
died at 13 Luskot, Quezon City, known to be the last residence of
said testatrix; that Francisco Azaola, petitioner herein for probate of
the holographic will, submitted the said holographic will (Exh. C)
whereby Maria Milagros Azaola was made the sole heir as against
the nephew of deceased Cesario Singson; that witness Francisco
Azaola testified that he saw the holographic will (Exh. C) one month,
more or less, before the death of the testatrix, as the same was
handed to him and his wife; that the witness testified also that he
recognized all the signatures appearing in the holographic will (Exh.
C) as the handwriting of the testatrix and to reinforce said statement,
witness presented the mortgage (Exh. E), the special power of the
attorney (Exh. F), and the general power of attorney (Exh. F-1),
besides the deeds of sale (Exhs. G and G-1) including an affidavit
(Exh. G-2), and that there were further exhibited in court two
residence certificates (Exhs. H and H-1) to show the signatures of
the testatrix, for comparison purposes; that said witness, Azaola,
testified that the penmanship appearing in the aforesaid
documentary evidence is in the handwriting of the testatrix as well as
the signatures appearing in the aforesaid documentary evidence is in
the handwriting of the testatrix as well as the signatures appearing
therein are the signatures of the testatrix; that said witness, in
answer to a question of his counsel admitted that the holographic will
was handed to him by the testatrix. "apparently it must have been
written by her" (t.s.n., p. 11). However, on page 16 on the same
transcript of the stenographic notes, when the same witness was
asked by counsel if he was familiar with the penmanship and
handwriting of the deceased Fortunata Vda. de Yance, he answered
positively in the affirmative and when he was asked again whether
the penmanship referred to in the previous answer as appearing in
the holographic will (Exh. C) was hers (testatrix'), he answered, "I
would definitely say it is hers"; that it was also established in the
proceedings that the assessed value of the property of the deceased
in Luskot, Quezon City, is in the amount of P7,000.00.
The opposition to the probate was on the ground that (1) the execution of the
will was procured by undue and improper pressure and influence on the part
of the petitioner and his wife, and (2) that the testatrix did not seriously intend
the instrument to be her last will, and that the same was actually written
either on the 5th or 6th day of August 1957 and not on November 20, 1956
as appears on the will.
SUCCESSION (10 October 2018 Cases) Page 16
The probate was denied on the ground that under Article 811 of the Civil
Code, the proponent must present three witnesses who could declare that
the will and the signature are in the writing of the testatrix, the probate being
contested; and because the lone witness presented by the proponent "did not
prove sufficiently that the body of the will was written in the handwriting of the
testatrix."
The proponent appealed, urging: first, that he was not bound to produce
more than one witness because the will's authenticity was not questioned;
and second, that Article 811 does not mandatorily require the production of
three witnesses to identify the handwriting and signature of a holographic
will, even if its authenticity should be denied by the adverse party.
Article 811 of the Civil Code of the Philippines is to the following effect:
ART. 811. In the probate of a holographic will, it shall be necessary
that at least one witness who knows the handwriting and signature of
the testator explicitly declare that the will and the signature are in the
handwriting of the testator. If the will is contested, at least three of
such witnesses shall be required.
In the absence of any competent witnesses referred to in the
preceding paragraph, and if the court deems it necessary, expert
testimony may be resorted to. (691a).
We agree with the appellant that since the authenticity of the will was not
contested, he was not required to produce more than one witness; but even if
the genuineness of the holographic will were contested, we are of the opinion
that Article 811 of our present Civil Code can not be interpreted as to require
the compulsory presentation of three witnesses to identify the handwriting of
the testator, under penalty of having the probate denied. Since no witness
may have been present at the execution of a holographic will, none being
required by law (Art. 810, new Civil Code), it becomes obvious that the
existence of witness possessing the requisite qualifications is a matter
beyond the control of the proponent. For it is not merely a question of finding
and producing any three witnesses; they must be witnesses "who know the
handwriting and signature of the testator" and who can declare (truthfully, of
course, even if the law does not so express) "that the will and the signature
are in the handwriting of the testator". There may be no available witness of
the testator's hand; or even if so familiarized, the witnesses may be unwilling
to give a positive opinion. Compliance with the rule of paragraph 1 of Article
811 may thus become an impossibility. That is evidently the reason why the
second paragraph of Article 811 prescribes that —
in the absence of any competent witness referred to in the preceding
paragraph, and if the court deems it necessary, expert testimony may
be resorted to.
As can be seen, the law foresees the possibility that no qualified witness may
be found (or what amounts to the same thing, that no competent witness may
be willing to testify to the authenticity of the will), and provides for resort to
expert evidence to supply the deficiency.
It may be true that the rule of this article (requiring that three witnesses be
presented if the will is contested and only one if no contest is had) was
derived from the rule established for ordinary testaments (cf. Cabang vs.
Delfinado, 45 Phil., 291; Tolentino vs. Francisco, 57 Phil., 742). But it can not
be ignored that the requirement can be considered mandatory only in the
case of ordinary testaments, precisely because the presence of at least three
witnesses at the execution of ordinary wills is made by law essential to their
validity (Art. 805). Where the will is holographic, no witness need be present
(Art. 10), and the rule requiring production of three witnesses must be
deemed merely permissive if absurd results are to be avoided.
Again, under Article 811, the resort to expert evidence is conditioned by the
words "if the Court deem it necessary", which reveal that what the law deems
essential is that the Court should be convinced of the will's authenticity.
Where the prescribed number of witnesses is produced and the court is
convinced by their testimony that the ill is genuine, it may consider it
unnecessary to call for expert evidence. On the other hand, if no competent
witness is available, or none of those produced is convincing, the Court may
still, and in fact it should, resort to handwriting experts. The duty of the Court,
in fine, is to exhaust all available lines of inquiry, for the state is as much
interested as the proponent that the true intention of the testator be carried
into effect.
Commenting on analogous provisions of Article 691 of the Spanish Civil
Code of 1889, the noted Commentator, Mucuis Scaevola (Vol. 12, 2nd Ed.,
p.421), sagely remarks:
La manera como esta concebida la redaccion del ultimo apartado de
dicho precepto induce la conclusion de que siempre o por lo menos,
en la mayor parte de los casos, el Juez debe acudir al criterio
pericial para que le ilustre acerca de la autenticidad del testamento
olografo, aunque ya esten insertas en los autos del expediente las
declaraciones testificales. La prudencia con que el Juez debe de
proceder en resoluciones de transcendencia asi lo exige, y la indole
delicada y peligrosa del testamento olografo lo hace necesario para
mayor garantia de todos los interes comprometidos en aquel.
En efecto, el cotejo pericial de letras puede ser una confirmacion
facultativa del dicho profano de los testigos y un modo de
desvanecer las ultimas dudas que pudieran ocurrir al Juez acerca de
la autenticidad que trata de averigaur y declarar. Para eso se ha
escrito la frase del citado ultimo apartado, (siempre que el Juez lo
estime conveniente), haya habido o no testigos y dudaran o no estos
respecto de los extremos por que son preguntados.
SUCCESSION (10 October 2018 Cases) Page 17
El arbitrio judicial en este caso debe formarse con independencia de
los sucesos y de su significacion, para responder debidamente de
las resoluciones que haya de dictar.
And because the law leaves it to the trial court if experts are still needed, no
unfavourable inference can be drawn from a party's failure to offer expert
evidence, until and unless the court expresses dissatisfaction with the
testimony of the lay witnesses.
Our conclusion is that the rule of the first paragraph of Article 811 of the Civil
Code is merely directory and is not mandatory.
Considering, however, that this is the first occasion in which this Court has
been called upon to construe the import of said article, the interest of justice
would be better served, in our opinion, by giving the parties ample
opportunity to adduce additional evidence, including expert witnesses, should
the Court deem them necessary.
In view of the foregoing, the decision appealed from is set aside, and the
records ordered remanded to the Court of origin, with instructions to hold a
new trial in conformity with this opinion. But evidence already on record shall
not be retaken. No costs.
[G.R. No. 123486. August 12, 1999]
EUGENIA RAMONAL CODOY, and MANUEL
RAMONAL, petitioners, vs. EVANGELINE R. CALUGAY,
JOSEPHINE SALCEDO, and EUFEMIA PATIGAS, respondents.
DECISION
PARDO, J.:
Before us is a petition for review on certiorari of the decision of the Court
of Appeals[1] and its resolution denying reconsideration, ruling:
Upon the unrebutted testimony of appellant Evangeline Calugay and witness
Matilde Ramonal Binanay, the authenticity of testators holographic will has
been established and the handwriting and signature therein (exhibit S) are
hers, enough to probate said will. Reversal of the judgment appealed from
and the probate of the holographic will in question be called for. The rule is
that after plaintiff has completed presentation of his evidence and the
defendant files a motion for judgment on demurrer to evidence on the ground
that upon the facts and the law plaintiff has shown no right to relief, if the
motion is granted and the order to dismissal is reversed on appeal, the
movant loses his right to present evidence in his behalf (Sec. 1 Rule 35
Revised Rules of Court). Judgment may, therefore, be rendered for appellant
in the instant case.
Wherefore, the order appealed from is REVERSED and judgment rendered
allowing the probate of the holographic will of the testator Matilde Seo Vda.
de Ramonal.[2]
The facts are as follows:
On April 6, 1990, Evangeline Calugay, Josephine Salcedo and Eufemia
Patigas, devisees and legatees of the holographic will of the deceased
Matilde Seo Vda. de Ramonal, filed with the Regional Trial Court, Misamis
Oriental, Branch 18, a petition[3] for probate of the holographic will of the
deceased, who died on January 16, 1990.
In the petition, respondents claimed that the deceased Matilde Seo Vda.
de Ramonal, was of sound and disposing mind when she executed the will
on August 30, 1978, that there was no fraud, undue influence, and duress
employed in the person of the testator, and the will was written voluntarily.
The assessed value of the decedents property, including all real and
personal property was about P400,000.00, at the time of her death.[4]
On June 28, 1990, Eugenia Ramonal Codoy and Manuel Ramonal filed
an opposition[5] to the petition for probate, alleging that the holographic will
was a forgery and that the same is even illegible. This gives an impression
that a third hand of an interested party other than the true hand of Matilde
Seo Vda. de Ramonal executed the holographic will.
Petitioners argued that the repeated dates incorporated or appearing on
the will after every disposition is out of the ordinary. If the deceased was the
one who executed the will, and was not forced, the dates and the signature
should appear at the bottom after the dispositions, as regularly done and not
after every disposition. And assuming that the holographic will is in the
handwriting of the deceased, it was procured by undue and improper
pressure and influence on the part of the beneficiaries, or through fraud and
trickery.
Respondents presented six (6) witnesses and various documentary
evidence. Petitioners instead of presenting their evidence, filed a
demurrer[6] to evidence, claiming that respondents failed to establish
sufficient factual and legal basis for the probate of the holographic will of the
deceased Matilde Seo Vda. de Ramonal.
On November 26, 1990, the lower Court issued an order, the dispositive
portion of which reads:
WHEREFORE, in view of the foregoing consideration, the Demurrer to
Evidence having being well taken, same is granted, and the petition for
probate of the document (Exhibit S) on the purported Holographic Will of the
SUCCESSION (10 October 2018 Cases) Page 18
late Matilde Seo Vda. de Ramonal, is denied for insufficiency of evidence
and lack of merits.[7]
On December 12, 1990, respondents filed a notice of appeal, [8] and in
support of their appeal, the respondents once again reiterated the testimony
of the following witnesses, namely: (1) Augusto Neri; (2) Generosa Senon;
(3) Matilde Ramonal Binanay; (4) Teresita Vedad; (5) Fiscal Rodolfo Waga;
and (6) Evangeline Calugay.
To have a clear understanding of the testimonies of the witnesses, we
recite an account of their testimonies.
Augusto Neri, Clerk of Court, Court of First Instance of Misamis
Oriental, where the special proceedings for the probate of the holographic
will of the deceased was filed. He produced and identified the. records of the
case. The documents presented bear the signature of the deceased, Matilde
Seo Vda. de Ramonal, for the purpose of laying the basis for comparison of
the handwriting of the testatrix, with the writing treated or admitted as
genuine by the party against whom the evidence is offered.
Generosa Senon, election registrar of Cagayan de Oro, was presented
to produce and identify the voters affidavit of the decedent. However, the
voters affidavit was not produced for the same was already destroyed and no
longer available.
Matilde Ramonal Binanay, testified that the deceased Matilde Seo
Vda. de Ramonal was her aunt, and that after the death of Matildes husband,
the latter lived with her in her parents house for eleven (11) years, from 1958
to 1969. During those eleven (11) years of close association with the
deceased, she acquired familiarity with her signature and handwriting as she
used to accompany her (deceased Matilde Seo Vda. de Ramonal) in
collecting rentals from her various tenants of commercial buildings, and the
deceased always issued receipts. In addition to this, she (witness Matilde
Binanay) assisted the deceased in posting the records of the accounts, and
carried personal letters of the deceased to her creditors.
Matilde Ramonal Binanay further testified that at the time of the death
of Matilde Vda. de Ramonal, she left a holographic will dated August 30,
1978, which was personally and entirely written, dated and signed, by the
deceased and that all the dispositions therein, the dates, and the signatures
in said will, were that of the deceased.
Fiscal Rodolfo Waga testified that before he was appointed City Fiscal
of Cagayan de Oro, he was a practicing lawyer, and handled all the
pleadings and documents signed by the deceased in connection with the
intestate proceedings of her late husband, as a result of which he is familiar
with the handwriting of the latter. He testified that the signature appearing in
the holographic will was similar to that of the deceased, Matilde Seo Vda. de
Ramonal, but he can not be sure.
 The fifth witness presented was Mrs. Teresita Vedad, an employee of "Follow my instruction in order that I will rest peacefully.
the Department of Environment and Natural Resources, Region 10. She
testified that she processed the application of the deceased for pasture Mama
permit and was familiar with the signature of the deceased, since the Matilde Vda de Ramonal
deceased signed documents in her presence, when the latter was applying
for pasture permit. On October 9, 1995, the Court of Appeals, rendered decision [9] ruling
Finally, Evangeline Calugay, one of the respondents, testified that she that the appeal was meritorious. Citing the decision in the case of Azaola vs.
had lived with the deceased since birth, and was in fact adopted by the Singson, 109 Phil. 102, penned by Mr. Justice J. B. L. Reyes, a recognized
latter. That after a long period of time she became familiar with the signature authority in civil law, the Court of Appeals held:
of the deceased. She testified that the signature appearing in the holographic x x x even if the genuineness of the holographic will were contested, we
will is the true and genuine signature of Matilde Seo Vda. de Ramonal. are of the opinion that Article 811 of our present civil code can not be
The holographic will which was written in Visayan, is translated in interpreted as to require the compulsory presentation of three witnesses to
English as follows: identify the handwriting of the testator, under penalty of having the probate
Instruction denied. Since no witness may have been present at the execution of the
August 30, 1978 holographic will, none being required by law (art. 810, new civil code), it
1. My share at Cogon, Raminal Street, for Evangeline Calugay. becomes obvious that the existence of witnesses possessing the requisite
(Sgd) Matilde Vda de Ramonal qualifications is a matter beyond the control of the proponent. For it is not
August 30, 1978 merely a question of finding and producing any three witnesses; they must
2. Josefina Salcedo must be given 1,500 square meters at Pinikitan Street. be witnesses who know the handwriting and signature of the testator and
(Sgd) Matilde Vda de Ramonal who can declare (truthfully, of course, even if the law does not express) that
August 30, 1978 the will and the signature are in the handwriting of the testator. There may be
3. My jewelrys shall be divided among: no available witness acquainted with the testators hand; or even if so
familiarized, the witness may be unwilling to give a positive
1. Eufemia Patigas opinion.Compliance with the rule of paragraph 1 of article 811 may thus
2. Josefina Salcedo become an impossibility. That is evidently the reason why the second
3. Evangeline Calugay paragraph of article 811 prescribes that
in the absence of any competent witness referred to in the preceding
(Sgd)Matilde Vda de Ramonal paragraph, and if the court deems it necessary, expert testimony may be
August 30, 1978 resorted to.
4. I bequeath my one (1) hectare land at Mandumol, Indahag to Evangeline As can be seen, the law foresees the possibility that no qualified witness may
R. Calugay be found (or what amounts to the same thing, that no competent witness may
(Sgd) Matilde Vda de Ramonal be willing to testify to the authenticity of the will), and provides for resort to
"August 30, 1978 expert evidence to supply the deficiency.
5. Give the 2,500 Square Meters at Sta. Cruz Ramonal Village in favor of It may be true that the rule of this article (requiring that three witnesses be
Evangeline R. Calugay, Helen must continue with the Sta. Cruz, once I am presented if the will is contested and only one if no contest is had) was
no longer around. derived from the rule established for ordinary testaments (CF Cabang vs.
(Sgd) Matilde Vda de Ramonal Delfinado, 45 PHIL 291; Tolentino v. Francisco, 57 PHIL 742). But it can not
August 30, 1978 be ignored that the requirement can be considered mandatory only in case of
6. Bury me where my husband Justo is ever buried. ordinary testaments, precisely because the presence of at least three
(Sgd) Matilde Vda de Ramonal witnesses at the execution of ordinary wills is made by law essential to their
"August 30,1978 validity (Art. 805). Where the will is holographic, no witness need be
Gene and Manuel: present (art.10), and the rule requiring production of three witnesses
must be deemed merely permissive if absurd results are to be avoided.

SUCCESSION (10 October 2018 Cases) Page 19

Again, under Art.811, the resort to expert evidence is conditioned by the
words if the court deem it necessary, which reveal that what the law deems
essential is that the court should be convinced of the wills authenticity. Where
the prescribed number of witnesses is produced and the court is convinced
by their testimony that the will is genuine, it may consider it unnecessary to
call for expert evidence. On the other hand, if no competent witness is
available, or none of those produced is convincing, the court may still, and in
fact it should resort to handwriting experts. The duty of the court, in fine, is to
exhaust all available lines of inquiry, for the state is as much interested as the
proponent that the true intention of the testator be carried into effect.
Paraphrasing Azaola vs. Singson, even if the genuineness of the holographic
will were contested, Article 811 of the civil code cannot be interpreted as to
require the compulsory presentation of three witnesses to identify the
handwriting of the testator, under penalty of the having the probate
denied. No witness need be present in the execution of the holographic
will. And the rule requiring the production of three witnesses is merely
permissive. What the law deems essential is that the court is convinced of
the authenticity of the will. Its duty is to exhaust all available lines of inquiry,
for the state is as much interested in the proponent that the true intention of
the testator be carried into effect. And because the law leaves it to the trial
court to decide if experts are still needed, no unfavorable inference can be
drawn from a partys failure to offer expert evidence, until and unless the
court expresses dissatisfaction with the testimony of the lay witnesses. [10]
According to the Court of Appeals, Evangeline Calugay, Matilde
Ramonal Binanay and other witnesses definitely and in no uncertain terms
testified that the handwriting and signature in the holographic will were those
of the testator herself.
Thus, upon the unrebutted testimony of appellant Evangeline Calugay
and witness Matilde Ramonal Binanay, the Court of Appeals sustained the
authenticity of the holographic will and the handwriting and signature therein,
and allowed the will to probate.
Hence, this petition.
The petitioners raise the following issues:
(1) Whether or not the ruling of the case of Azaola vs. Singson, 109
Phil. 102, relied upon by the respondent Court of Appeals, was
applicable to the case.
(2) Whether or not the Court of Appeals erred in holding that private
respondents had been able to present credible evidence to
prove that the date, text, and signature on the holographic will
were written entirely in the hand of the testatrix.
SUCCESSION (10 October 2018 Cases) Page 20
(3) Whether or not the Court of Appeals erred in not analyzing the
signatures in the holographic will of Matilde Seo Vda. de
Ramonal.
In this petition, the petitioners ask whether the provisions of Article 811
of the Civil Code are permissive or mandatory. The article provides, as a
requirement for the probate of a contested holographic will, that at least three
witnesses explicitly declare that the signature in the will is the genuine
signature of the testator.
We are convinced, based on the language used, that Article 811 of the
Civil Code is mandatory. The word shall connotes a mandatory order. We
have ruled that shall in a statute commonly denotes an imperative obligation
and is inconsistent with the idea of discretion and that the presumption is that
the word shall, when used in a statute is mandatory. [11]
Laws are enacted to achieve a goal intended and to guide against an
evil or mischief that aims to prevent. In the case at bar, the goal to achieve is
to give effect to the wishes of the deceased and the evil to be prevented is
the possibility that unscrupulous individuals who for their benefit will employ
means to defeat the wishes of the testator.
So, we believe that the paramount consideration in the present petition
is to determine the true intent of the deceased. An exhaustive and objective
consideration of the evidence is imperative to establish the true intent of the
testator.
It will be noted that not all the witnesses presented by the respondents
testified explicitly that they were familiar with the handwriting of the
testator. In the case of Augusto Neri, clerk of court, Court of First Instance,
Misamis Oriental, he merely identified the record of Special Proceedings No.
427 before said court. He was not presented to declare explicitly that the
signature appearing in the holographic was that of the deceased.
Generosa E. Senon, the election registrar of Cagayan de Oro City, was
presented to identify the signature of the deceased in the voters affidavit,
which was not even produced as it was no longer available.
Matilde Ramonal Binanay, on the other hand, testified that:
Q. And you said for eleven (11) years Matilde Vda de Ramonal resided
with your parents at Pinikitan, Cagayan de Oro City. Would you tell
the court what was your occupation or how did Matilde Vda de
Ramonal keep herself busy that time?
A. Collecting rentals.
Q. From where?
A. From the land rentals and commercial buildings at Pabayo-Gomez
streets.[12]
xxx
 Q. Who sometime accompany her? A. My aunt.
A. I sometimes accompany her Q. Why do you say this is the handwriting of your aunt?
Q. In collecting rentals does she issue receipts? A. Because I am familiar with her signature.[16]
A. Yes, sir.[13]
What Ms. Binanay saw were pre-prepared receipts and letters of the
xxx deceased, which she either mailed or gave to her tenants. She did not
declare that she saw the deceased sign a document or write a note.
Q. Showing to you the receipt dated 23 October 1979, is this the one you Further, during the cross-examination, the counsel for petitioners elicited
are referring to as one of the receipts which she issued to them? the fact that the will was not found in the personal belongings of the
A. Yes, sir. deceased but was in the possession of Ms. Binanay. She testified that:
Q. Now there is that signature of Matilde vda. De Ramonal, whose
signature is that Mrs. Binanay? Q. Mrs. Binanay, when you were asked by counsel for the petitioners if
A. Matilde vda. De Ramonal. the late Matilde Seno vda de Ramonal left a will you said, yes?
Q. Why do you say that that is a signature of Matilde vda. De A. Yes, sir.
Ramonal? Q. Who was in possession of that will?
A. I am familiar with her signature. A. I.
Q. Now, you tell the court Mrs. Binanay, whether you know Matilde vda de Q. Since when did you have the possession of the will?
Ramonal kept records of the accounts of her tenants? A. It was in my mothers possession.
A. Yes, sir. Q. So, it was not in your possession?
Q. Why do you say so? A. Sorry, yes.
A. Because we sometimes post a record of accounts in behalf of Matilde Q. And when did you come into possession since as you said this was
Vda. De Ramonal. originally in the possession of your mother?
Q. How is this record of accounts made? How is this reflected? A. 1985.[17]
A. In handwritten.[14]
xxx
xxx
Q. Now, Mrs. Binanay was there any particular reason why your mother
Q. In addition to collection of rentals, posting records of accounts of left that will to you and therefore you have that in your possession?
tenants and deed of sale which you said what else did you do to A. It was not given to me by my mother, I took that in the aparador when
acquire familiarity of the signature of Matilde Vda De Ramonal? she died.
A. Posting records. Q. After taking that document you kept it with you?
Q. Aside from that? A. I presented it to the fiscal.
A. Carrying letters. Q. For what purpose?
Q. Letters of whom? A. Just to seek advice.
A. Matilde Q. Advice of what?
Q. To whom? A. About the will.[18]
A. To her creditors.[15]
In her testimony it was also evident that Ms. Binanay kept the fact about
xxx the will from petitioners, the legally adopted children of the deceased. Such
actions put in issue her motive of keeping the will a secret to petitioners and
Q. You testified that at the time of her death she left a will. I am showing revealing it only after the death of Matilde Seo Vda. de Ramonal.
to you a document with its title tugon is this the document you are In the testimony of Ms. Binanay, the following were established:
referring to?
A. Yes, sir. Q. Now, in 1978 Matilde Seno Vda de Ramonal was not yet a sickly
Q. Showing to you this exhibit S, there is that handwritten tugon, person is that correct?
whose handwriting is this? A. Yes, sir.

SUCCESSION (10 October 2018 Cases) Page 21

 Q. She was up and about and was still uprightly and she could walk
agilely and she could go to her building to collect rentals, is that
correct?
A. Yes, sir.[19]
xxx
Q. Now, let us go to the third signature of Matilde Ramonal. Do you know
that there are retracings in the word Vda.?
A. Yes, a little. The letter L is continuous.
Q. And also in Matilde the letter L is continued to letter D?
A. Yes, sir.
Q. Again the third signature of Matilde Vda de Ramonal the letter L in
Matilde is continued towards letter D.
A. Yes, sir.
Q. And there is a retracing in the word Vda.?
A. Yes, sir.[20]
xxx
Q. Now, that was 1979, remember one year after the alleged holographic
will. Now, you identified a document marked as Exhibit R. This is
dated January 8,1978 which is only about eight months from August
30,1978. Do you notice that the signature Matilde Vda de Ramonal is
beautifully written and legible?
A. Yes, sir the handwriting shows that she was very exhausted.
Q. You just say that she was very exhausted while that in 1978 she was
healthy was not sickly and she was agile. Now, you said she was
exhausted?
A. In writing.
Q. How did you know that she was exhausted when you were not present
and you just tried to explain yourself out because of the apparent
inconsistencies?
A. That was I think. (sic)
Q. Now, you already observed this signature dated 1978, the same year
as the alleged holographic will. In exhibit I, you will notice that there
is no retracing; there is no hesitancy and the signature was written
on a fluid movement. x x x And in fact , the name Eufemia R. Patigas
here refers to one of the petitioners?
A. Yes, sir.
Q. You will also notice Mrs. Binanay that it is not only with the questioned
signature appearing in the alleged holographic will marked as Exhibit
X but in the handwriting themselves, here you will notice the
hesitancy and tremors, do you notice that?
A. Yes, sir.[21]
SUCCESSION (10 October 2018 Cases) Page 22
Evangeline Calugay declared that the holographic will was written,
dated and signed in the handwriting of the testator. She testified that:
Q. You testified that you stayed with the house of the spouses Matilde and
Justo Ramonal for the period of 22 years. Could you tell the court the
services if any which you rendered to Matilde Ramonal?
A. During my stay I used to go with her to the church, to the market and
then to her transactions.
Q. What else? What services that you rendered?
A. After my college days I assisted her in going to the bank, paying taxes
and to her lawyer.
Q. What was your purpose of going to her lawyer?
A. I used to be her personal driver.
Q. In the course of your stay for 22 years did you acquire familiarity of the
handwriting of Matilde Vda de Ramonal?
A. Yes, sir.
Q. How come that you acquired familiarity?
A. Because I lived with her since birth.[22]
xxx
Q. Now, I am showing to you Exhibit S which is captioned tugon dated
Agosto 30, 1978 there is a signature here below item No. 1, will you
tell this court whose signature is this?
A. Yes, sir, that is her signature.
Q. Why do you say that is her signature?
A. I am familiar with her signature.[23]
So, the only reason that Evangeline can give as to why she was familiar
with the handwriting of the deceased was because she lived with her since
birth. She never declared that she saw the deceased write a note or sign a
document.
The former lawyer of the deceased, Fiscal Waga, testified that:
Q. Do you know Matilde Vda de Ramonal?
A. Yes, sir I know her because she is my godmother the husband is my
godfather. Actually I am related to the husband by consanguinity.
Q. Can you tell the name of the husband?
A. The late husband is Justo Ramonal.[24]
xxx
Q. Can you tell this court whether the spouses Justo Ramonal and
Matilde Ramonal have legitimate children?
A. As far as I know they have no legitimate children.[25]
xxx
 Q. You said after becoming a lawyer you practice your
profession? Where?
A. Here in Cagayan de Oro City.
Q. Do you have services rendered with the deceased Matilde vda de
Ramonal?
A. I assisted her in terminating the partition, of properties.
Q. When you said assisted, you acted as her counsel? Any sort of
counsel as in what case is that, Fiscal?
A. It is about the project partition to terminate the property, which was
under the court before.[26]
xxx
Q. Appearing in special proceeding no. 427 is the amended inventory
which is marked as exhibit N of the estate of Justo Ramonal and
there appears a signature over the type written word Matilde vda de
Ramonal, whose signature is this?
A. That is the signature of Matilde Vda de Ramonal.
Q. Also in exhibit n-3, whose signature is this?
A. This one here that is the signature of Mrs. Matilde vda de Ramonal. [27]
xxx
Q. Aside from attending as counsel in that Special Proceeding Case No.
427 what were the other assistance wherein you were rendering
professional service to the deceased Matilde Vda de Ramonal?
A. I can not remember if I have assisted her in other matters but if there
are documents to show that I have assisted then I can recall. [28]
xxx
Q. Now, I am showing to you exhibit S which is titled tugon, kindly go over
this document, Fiscal Waga and tell the court whether you are
familiar with the handwriting contained in that document marked as
exhibit S?
A. I am not familiar with the handwriting.
Q. This one, Matilde Vda de Ramonal, whose signature is this?
A. I think this signature here it seems to be the signature of Mrs. Matilde
vda de Ramonal.
Q. Now, in item No. 2 there is that signature here of Matilde Vda de
Ramonal, can you tell the court whose signature is this?
A. Well, that is similar to that signature appearing in the project of
partition.
Q. Also in item no. 3 there is that signature Matilde Vda de Ramonal, can
you tell the court whose signature is that?
SUCCESSION (10 October 2018 Cases) Page 23
A. As I said, this signature also seems to be the signature of Matilde vda
de Ramonal.
Q. Why do you say that?
A. Because there is a similarity in the way it is being written.
Q. How about this signature in item no. 4, can you tell the court whose
signature is this?
A. The same is true with the signature in item no. 4. It seems that they are
similar.[29]
xxx
Q. Mr. Prosecutor, I heard you when you said that the signature of Matilde
Vda de Ramonal Appearing in exhibit S seems to be the signature of
Matilde vda de Ramonal?
A. Yes, it is similar to the project of partition.
Q. So you are not definite that this is the signature of Matilde vda de
Ramonal. You are merely supposing that it seems to be her
signature because it is similar to the signature of the project of
partition which you have made?
A. That is true.[30]
From the testimonies of these witnesses, the Court of Appeals allowed
the will to probate and disregard the requirement of three witnesses in case
of contested holographic will, citing the decision in Azaola vs. Singson,
[31]
ruling that the requirement is merely directory and not mandatory.
In the case of Ajero vs. Court of Appeals, [32] we said that the object of the
solemnities surrounding the execution of wills is to close the door against bad
faith and fraud, to avoid substitution of wills and testaments and to guaranty
their truth and authenticity. Therefore, the laws on this subject should be
interpreted in such a way as to attain these primordial ends. But, on the other
hand, also one must not lose sight of the fact that it is not the object of the
law to restrain and curtail the exercise of the right to make a will.
However, we cannot eliminate the possibility of a false document being
adjudged as the will of the testator, which is why if the holographic will is
contested, that law requires three witnesses to declare that the will was in the
handwriting of the deceased.
The will was found not in the personal belongings of the deceased but
with one of the respondents, who kept it even before the death of the
deceased. In the testimony of Ms. Binanay, she revealed that the will was in
her possession as early as 1985, or five years before the death of the
deceased.
There was no opportunity for an expert to compare the signature and
the handwriting of the deceased with other documents signed and executed
by her during her lifetime. The only chance at comparison was during the
cross-examination of Ms. Binanay when the lawyer of petitioners asked Ms.
Binanay to compare the documents which contained the signature of the
deceased with that of the holographic will and she is not a handwriting
expert. Even the former lawyer of the deceased expressed doubts as to the
authenticity of the signature in the holographic will.
A visual examination of the holographic will convince us that the strokes
are different when compared with other documents written by the
testator. The signature of the testator in some of the disposition is not
readable. There were uneven strokes, retracing and erasures on the will.
Comparing the signature in the holographic will dated August 30, 1978,
[33]
and the signatures in several documents such as the application letter for
pasture permit dated December 30, 1980, [34] and a letter dated June 16,
1978,[35] the strokes are different. In the letters, there are continuous flows of
the strokes, evidencing that there is no hesitation in writing unlike that of the
holographic will. We, therefore, cannot be certain that the holographic will
was in the handwriting by the deceased.
IN VIEW WHEREOF, the decision appealed from is SET ASIDE. The
records are ordered remanded to the court of origin with instructions to allow
petitioners to adduce evidence in support of their opposition to the probate of
the holographic will of the deceased Matilde Seo Vda. de Ramonal.
No costs.
SO ORDERED.
CONFLICTS OF LAW
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
SUCCESSION (10 October 2018 Cases) Page 24
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
SUCCESSION (10 October 2018 Cases) Page 25
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. 76714 June 2, 1994
SALUD TEODORO VDA. DE PEREZ, petitioner,
vs.
HON. ZOTICO A. TOLETE in his capacity as Presiding Judge, Branch
18, RTC, Bulacan, respondent.
Natividad T. Perez for petitioner.
Benedicto T. Librojo for private respondents.
QUIASON, J.:
This is a petition for certiorari under Rule 65 of the Revised Rules of Court to
set aside the Order dated November 19, 1986 of the Regional Trial Court,
Branch 18, Bulacan presided by respondent Judge Zotico A. Tolete, in
Special Proceedings No. 1793-M.
We grant the petition.
II
Dr. Jose F. Cunanan and his wife, Dr. Evelyn Perez-Cunanan, who became
American citizens, established a successful medical practice in New York,
U.S.A. The Cunanans lived at No. 2896 Citation Drive, Pompey, Syracuse,
New York, with their children, Jocelyn, 18; Jacqueline, 16; and Josephine, 14.
On August 23, 1979, Dr. Cunanan executed a last will and testament,
bequeathing to his wife "all the remainder" of his real and personal property
at the time of his death "wheresoever situated" (Rollo, p. 35). In the event he
would survive his wife, he bequeathed all his property to his children and
grandchildren with Dr. Rafael G. Cunanan, Jr. as trustee. He appointed his
wife as executrix of his last will and testament and Dr. Rafael G. Cunanan, Jr.
as substitute executor. Article VIII of his will states:
If my wife, EVELYN PEREZ-CUNANAN, and I shall die
under such circumstances that there is not sufficient
 evidence to determine the order of our deaths, then it shall
be presumed that I predeceased her, and my estate shall be
administered and distributed, in all respects, in accordance
with such presumption (Rollo, p. 41).
Four days later, on August 27, Dr. Evelyn P. Cunanan executed her own last
will and testament containing the same provisions as that of the will of her
husband. Article VIII of her will states:
If my husband, JOSE F. CUNANAN, and I shall die under
such circumstances that there is not sufficient evidence to
determine the order of our deaths, then it shall be presumed
that he predeceased me, and my estate shall be
administered and distributed in all respects, in accordance
with such presumption. (Rollo, p. 31).
On January 9, 1982, Dr. Cunanan and his entire family perished when they
were trapped by fire that gutted their home. Thereafter, Dr. Rafael G.
Cunanan, Jr. as trustee and substitute executor of the two wills, filed
separate proceedings for the probate thereof with the Surrogate Court of the
County of Onondaga, New York. On April 7, these two wills were admitted to
probate and letters testamentary were issued in his favor.
On February 21, 1983, Salud Teodoro Perez, the mother of Dr. Evelyn P.
Cunanan, and petitioner herein, filed with the Regional P. Cunanan, and
petitioner herein, filed with the Regional Trial Court, Malolos, Bulacan a
petition for the reprobate of the two bills ancillary to the probate proceedings
in New York. She also asked that she be appointed the special administratrix
of the estate of the deceased couple consisting primarily of a farm land in
San Miguel, Bulacan.
On March 9, the Regional Trial Court, Branch 16, Malolos, Bulacan, presided
by Judge Gualberto J. de la Llana, issued an order, directing the issuance of
letters of special administration in favor of petitioner upon her filing of a
P10,000.00 bond. The following day, petitioner posted the bond and took her
oath as special administration.
As her first act of administration, petitioner filed a motion, praying that the
Philippine Life Insurance Company be directed to deliver the proceeds in the
amount of P50,000.00 of the life insurance policy taken by Dr. Jose F.
Cunanan with Dr. Evelyn Perez-Cunanan and their daughter Jocelyn as
beneficiaries. The trial court granted the motion.
Counsel for the Philippine American Life Insurance Company then filed a
manifestation, stating that said company then filed a manifestation, stating
that said company had delivered to petitioner the amount of P49,765.85,
representing the proceeds of the life insurance policy of Dr. Jose F. Cunanan.
In a motion dated May 19, 1983, petitioner asked that Dr. Rafael Cunanan,
Sr. be ordered to deliver to her a Philippine Trust Company passbook with
P25,594.00 in savings deposit, and the Family Savings Bank time deposit
certificates in the total amount of P12,412.52.
SUCCESSION (10 October 2018 Cases) Page 26
On May 31, Atty. Federico Alday filed a notice of appearance as counsel for
the heirs of Dr. Jose F. Cunanan, namely, Dr. Rafael Cunanan, Sr., Priscilla
Cunanan Bautista, Lydia Cunanan Ignacio, Felipe F. Cunanan and Loreto
Cunanan Concepcion (Cunanan heirs). He also manifested that before
receiving petitioner's motion of May 19, 1983, his clients were unaware of the
filing of the testate estate case and therefore, "in the interest of simple fair
play," they should be notified of the proceedings (Records, p. 110). He
prayed for deferment of the hearing on the motions of May 19, 1983.
Petitioner then filed a counter manifestation dated June 13, 1983, asserting:
(1) that the "Cunanan collaterals are neither heirs nor creditors of the late Dr.
Jose F. Cunanan" and therefore, they had "no legal or proprietary interests to
protect" and "no right to intervene"; (2) that the wills of Dr. Jose F. Cunanan
and Dr. Evelyn Perez-Cunanan, being American citizens, were executed in
accordance with the solemnities and formalities of New York laws, and
produced "effects in this jurisdiction in accordance with Art. 16 in relation to
Art. 816 of the Civil Code"; (3) that under Article VIII of the two wills, it was
presumed that the husband predeceased the wife; and (4) that "the Cunanan
collaterals are neither distributees, legatees or beneficiaries, much less, heirs
as heirship is only by institution" under a will or by operation of the law of
New York (Records, pp. 112-113).
On June 23, the probate court granted petitioner's motion of May 19, 1983.
However, on July 21, the Cunanan heirs filed a motion to nullify the
proceedings and to set aside the appointment of, or to disqualify, petitioner
as special administratrix of the estates of Dr. Jose F. Cunanan and Dr. Evelyn
Perez-Cunanan. The motion stated: (1) that being the "brothers and sisters
and the legal and surviving heirs" of Dr. Jose F. Cunanan, they had been
"deliberately excluded" in the petition for the probate of the separate wills of
the Cunanan spouses thereby misleading the Bulacan court to believe that
petitioner was the sole heir of the spouses; that such "misrepresentation"
deprived them of their right to "due process in violation of Section 4, Rule 76
of the Revised Rules of Court; (2) that Dr. Rafael G. Cunanan, Jr., the
executor of the estate of the Cunanan spouses, was likewise not notified of
the hearings in the Bulacan court; (3) that the "misrepresentation and
concealment committed by" petitioner rendered her unfit to be a special
administratrix; (4) that Dr. Rafael G. Cunanan, Jr. had, by virtue of a verified
power of attorney, authorized his father,
Dr. Rafael Cunanan, Sr., to be his attorney-in-fact; and (5) that Dr. Rafael
Cunanan, Sr. is qualified to be a regular administrator "as practically all of the
subject estate in the Philippines belongs to their brother, Dr. Jose F.
Cunanan" (Records, pp. 118-122). Hence, they prayed: (1) that the
proceedings in the case be declared null and void; (2) that the appointment
of petitioner as special administratrix be set aside; and (3) that Dr. Rafael
Cunanan, Sr. be appointed the regular administrator of the estate of the
deceased spouses.
Thereafter, the Cunanan heirs filed a motion requiring petitioner to submit an
inventory or accounting of all monies received by her in trust for the estate.
In her opposition, petitioner asserted: (1) that she was the "sole and only
heir" of her daughter, Dr. Evelyn Perez-Cunanan to the exclusion of the
"Cunanan collaterals"; hence they were complete strangers to the
proceedings and were not entitled to notice; (2) that she could not have
"concealed" the name and address of Dr. Rafael G. Cunanan, Jr. because
his name was prominently mentioned not only in the two wills but also in the
decrees of the American surrogate court; (3) that the rule applicable to the
case is Rule 77, not Rule 76, because it involved the allowance of wills
proved outside of the Philippines and that nowhere in Section 2 of Rule 77 is
there a mention of notice being given to the executor who, by the same
provision, should himself file the necessary ancillary proceedings in this
country; (4) that even if the Bulacan estate came from the "capital" of Dr.
Jose F. Cunanan, he had willed all his worldly goods to his wife and nothing
to his brothers and sisters; and (5) that Dr. Rafael G. Cunanan, Jr. had
unlawfully disbursed $215,000.00 to the Cunanan heirs, misappropriated
$15,000.00 for himself and irregularly assigned assets of the estates to his
American lawyer (Records, pp. 151-160).
In their reply, the Cunanan heirs stressed that on November 24, 1982,
petitioner and the Cunanan heirs had entered into an agreement in the
United States "to settle and divide equally the estates," and that under
Section 2 of Rule 77 the "court shall fix a time and place for the hearing and
cause notice thereof to be given as in case of an original will presented for
allowance" (Records, pp. 184-185).
Petitioner asked that Dr. Rafael G. Cunanan, Jr. be cited for contempt of
court for failure to comply with the Order of June 23, 1983 and for
appropriating money of the estate for his own benefit. She also alleged that
she had impugned the agreement of November 24, 1982 before the
Surrogate Court of Onondaga, New York which rendered a decision on April
13, 1983, finding that "all assets are payable to Dr. Evelyn P. Cunanan’s
executor to be then distributed pursuant to EPTL4-1.1 subd [a] par [4]"
(Rollo, p. 52).
On their part, the Cunanan heirs replied that petitioner was estopped from
claiming that they were heirs by the agreement to divide equally the estates.
They asserted that by virtue of Section 2 of Rule 77 of the Rules of Court, the
provisions of Sections 3, 4 and 5 of Rule 76 on the requirement of notice to
all heirs, executors, devisees and legatees must be complied with. They
reiterated their prayer: (1) that the proceedings in the case be nullified; (2)
that petitioner be disqualified as special administratrix; (3) that she be
ordered to submit an inventory of all goods, chattels and monies which she
had received and to surrender the same to the court; and (4) that Dr. Rafael
Cunanan, Sr. be appointed the regular administrator.
SUCCESSION (10 October 2018 Cases) Page 27
Petitioner filed a rejoinder, stating that in violation of the April 13, 1983
decision of the American court Dr. Rafael G. Cunanan, Jr. made
"unauthorized disbursements from the estates as early as July 7, 1982"
(Records, p. 231). Thereafter, petitioner moved for the suspension of the
proceedings as she had "to attend to the settlement proceedings" of the
estate of the Cunanan spouses in New York (Records, p. 242). The
Cunanans heirs opposed this motion and filed a manifestation, stating that
petitioner had received $215,000.00 "from the Surrogate’s Court as part of
legacy" based on the aforesaid agreement of November 24, 1982 (Records,
p. 248).
On February 21, 1984, Judge de la Llana issued an order, disallowing the
reprobate of the two wills, recalling the appointment of petitioner as special
administratrix, requiring the submission of petitioner of an inventory of the
property received by her as special administratrix and declaring all pending
incidents moot and academic. Judge de la Llana reasoned out that petitioner
failed to prove the law of New York on procedure and allowance of wills and
the court had no way of telling whether the wills were executed in
accordance with the law of New York. In the absence of such evidence, the
presumption is that the law of succession of the foreign country is the same
as the law of the Philippines. However, he noted, that there were only two
witnesses to the wills of the Cunanan spouses and the Philippine law
requires three witnesses and that the wills were not signed on each and
every page, a requirement of the Philippine law.
On August 27, 1985, petitioner filed a motion for reconsideration of the Order
dated February 21, 1984, where she had sufficiently proven the applicable
laws of New York governing the execution of last wills and testaments.
On the same day, Judge de la Llana issued another order, denying the
motion of petitioner for the suspension of the proceedings but gave her 15
days upon arrival in the country within which to act on the other order issued
that same day. Contending that the second portion of the second order left its
finality to the discretion of counsel for petitioner, the Cunanans filed a motion
for the reconsideration of the objectionable portion of the said order so that it
would conform with the pertinent provisions of the Judiciary Reorganization
Act of 1980 and the Interim Rules of Court.
On April 30, 1985, the respondent Judge of Branch 18 of the Regional Trial
Court, Malolos, to which the reprobate case was reassigned, issued an order
stating that "(W)hen the last will and testament . . . was denied probate," the
case was terminated and therefore all orders theretofore issued should be
given finality. The same Order amended the February 21, 1984 Order by
requiring petitioner to turn over to the estate the inventoried property. It
considered the proceedings for all intents and purposes, closed (Records,
p. 302).
On August 12, petitioner filed a motion to resume proceedings on account of
the final settlement and termination of the probate cases in New York. Three
days later, petitioner filed a motion praying for the reconsideration of the
Order of April 30, 1985 on the strength of the February 21, 1984 Order
granting her a period of 15 days upon arrival in the country within which to
act on the denial of probate of the wills of the Cunanan spouses. On August
19, respondent Judge granted the motion and reconsidered the Order of April
30, 1985.
On August 29, counsel for petitioner, who happens to be her daughter,
Natividad, filed a motion praying that since petitioner was ailing in Fort Lee,
New Jersey, U.S.A. and therefore incapacitated to act as special
administratrix, she (the counsel) should be named substitute special
administratrix. She also filed a motion for the reconsideration of the Order of
February 21, 1984, denying probate to the wills of the Cunanan spouses,
alleging that respondent Judge "failed to appreciate the significant probative
value of the exhibits . . . which all refer to the offer and admission to probate
of the last wills of the Cunanan spouses including all procedures undertaken
and decrees issued in connection with the said probate" (Records, pp. 313-
323).
Thereafter, the Cunanans heirs filed a motion for reconsideration of the Order
of August 19, 1985, alleging lack of notice to their counsel.
On March 31, 1986, respondent Judge to which the case was reassigned
denied the motion for reconsideration holding that the documents submitted
by petitioner proved "that the wills of the testator domiciled abroad were
properly executed, genuine and sufficient to possess real and personal
property; that letters testamentary were issued; and that proceedings were
held on a foreign tribunal and proofs taken by a competent judge who
inquired into all the facts and circumstances and being satisfied with his
findings issued a decree admitting to probate the wills in question." However,
respondent Judge said that the documents did not establish the law of New
York on the procedure and allowance of wills (Records, p. 381).
On April 9, 1986, petitioner filed a motion to allow her to present further
evidence on the foreign law. After the hearing of the motion on April 25, 1986,
respondent Judge issued an order wherein he conceded that insufficiency of
evidence to prove the foreign law was not a fatal defect and was curable by
adducing additional evidence. He granted petitioner 45 days to submit the
evidence to that effect.
However, without waiting for petitioner to adduce the additional evidence,
respondent Judge ruled in his order dated June 20, 1986 that he found "no
compelling reason to disturb its ruling of March 31, 1986" but allowed
petitioner to "file anew the appropriate probate proceedings for each of the
testator" (Records, p. 391).
The Order dated June 20, 1986 prompted petitioner to file a second motion
for reconsideration stating that she was "ready to submit further evidence on
the law obtaining in the State of New York" and praying that she be granted
SUCCESSION (10 October 2018 Cases) Page 28
"the opportunity to present evidence on what the law of the State of New York
has on the probate and allowance of wills" (Records, p. 393).
On July 18, respondent Judge denied the motion holding that to allow the
probate of two wills in a single proceeding "would be a departure from the
typical and established mode of probate where one petition takes care of one
will." He pointed out that even in New York "where the wills in question were
first submitted for probate, they were dealt with in separate proceedings"
(Records, p. 395).
On August 13, 1986, petitioner filed a motion for the reconsideration of the
Order of July 18, 1986, citing Section 3, Rule 2 of the Rules of Court, which
provides that no party may institute more than one suit for a single cause of
action. She pointed out that separate proceedings for the wills of the spouses
which contain basically the same provisions as they even named each other
as a beneficiary in their respective wills, would go against "the grain of
inexpensive, just and speedy determination of the proceedings" (Records,
pp. 405-407).
On September 11, 1986, petitioner filed a supplement to the motion for
reconsideration, citing Benigno v. De La Peña, 57 Phil. 305 (1932) (Records,
p. 411), but respondent Judge found that this pleading had been filed out of
time and that the adverse party had not been furnished with a copy thereof.
In her compliance, petitioner stated that she had furnished a copy of the
motion to the counsel of the Cunanan heirs and reiterated her motion for a
"final ruling on her supplemental motion" (Records, p. 421).
On November 19, respondent Judge issued an order, denying the motion for
reconsideration filed by petitioner on the grounds that "the probate of
separate wills of two or more different persons even if they are husband and
wife cannot be undertaken in a single petition" (Records, pp. 376-378).
Hence, petitioner instituted the instant petition, arguing that the evidence
offered at the hearing of April 11, 1983 sufficiently proved the laws of the
State of New York on the allowance of wills, and that the separate wills of the
Cunanan spouses need not be probated in separate proceedings.
II
Petitioner contends that the following pieces of evidence she had submitted
before respondent Judge are sufficient to warrant the allowance of the wills:
(a) two certificates of authentication of the respective wills of
Evelyn and Jose by the Consulate General of the Philippines
(Exhs. "F" and "G");
(b) two certifications from the Secretary of State of New York
and Custodian of the Great Seal on the facts that Judge
Bernard L. Reagan is the Surrogate of the Country of
Onondaga which is a court of record, that his signature and
seal of office are genuine, and that the Surrogate is duly
authorized to grant copy of the respective wills of Evelyn and
 Jose
(Exhs. "F-1" and "G-1");
(c) two certificates of Judge Reagan and Chief Clerk Donald
E. Moore stating that they have in their records and files the
said wills which were recorded on April 7, 1982 (Exhs. "F-2"
and "G-2");
(d) the respective wills of Evelyn and Jose (Exhs. "F-3", "F-6"
and Exh. "G-3" — "G-6");
(e) certificates of Judge Reagan and the Chief Clerk
certifying to the genuineness and authenticity of the
exemplified copies of the two wills (Exhs. "F-7" and "F-7");
(f) two certificates of authentication from the Consulate
General of the Philippines in New York (Exh. "H" and "F").
(g) certifications from the Secretary of State that Judge
Reagan is duly authorized to grant exemplified copies of the
decree of probate, letters testamentary and all proceedings
had and proofs duly taken
(Exhs. "H-1" and "I-1");
(h) certificates of Judge Reagan and the Chief Clerk that
letters testamentary were issued to Rafael G. Cunanan
(Exhs. "H-2" and "I-2");
(i) certification to the effect that it was during the term of
Judge Reagan that a decree admitting the wills to probate
had been issued and appointing Rafael G. Cunanan as
alternate executor (Exhs. "H-3" and
"I-10");
(j) the decrees on probate of the two wills specifying that
proceedings were held and proofs duly taken (Exhs. "H-4"
and "I-5");
(k) decrees on probate of the two wills stating that they were
properly executed, genuine and valid and that the said
instruments were admitted to probate and established as
wills valid to pass real and personal property (Exhs. "H-5"
and "I-5"); and
(l) certificates of Judge Reagan and the Chief Clerk on the
genuineness and authenticity of each other’s signatures in
the exemplified copies of the decrees of probate, letters
testamentary and proceedings held in their court (Exhs. "H-
6" and "I-6") (Rollo, pp. 13-16).
Petitioner adds that the wills had been admitted to probate in the Surrogate
Court’s Decision of April 13, 1983 and that the proceedings were terminated
on November 29, 1984.
SUCCESSION (10 October 2018 Cases) Page 29
The respective wills of the Cunanan spouses, who were American citizens,
will only be effective in this country upon compliance with the following
provision of the Civil Code of the Philippines:
Art. 816. The will of an alien who is abroad produces effect in
the Philippines if made with the formalities prescribed by the
law of the place in which he resides, or according to the
formalities observed in his country, or in conformity with
those which this Code prescribes.
Thus, proof that both wills conform with the formalities prescribed by New
York laws or by Philippine laws is imperative.
The evidence necessary for the reprobate or allowance of wills which have
been probated outside of the Philippines are as follows: (1) the due execution
of the will in accordance with the foreign laws; (2) the testator has his
domicile in the foreign country and not in the Philippines; (3) the will has
been admitted to probate in such country; (4) the fact that the foreign tribunal
is a probate court, and (5) the laws of a foreign country on procedure and
allowance of wills (III Moran Commentaries on the Rules of Court, 1970 ed.,
pp. 419-429; Suntay v. Suntay, 95 Phil. 500 [1954]; Fluemer v. Hix, 54 Phil.
610 [1930]). Except for the first and last requirements, the petitioner
submitted all the needed evidence.
The necessity of presenting evidence on the foreign laws upon which the
probate in the foreign country is based is impelled by the fact that our courts
cannot take judicial notice of them (Philippine Commercial and Industrial
Bank v. Escolin, 56 SCRA 266 [1974]).
Petitioner must have perceived this omission as in fact she moved for more
time to submit the pertinent procedural and substantive New York laws but
which request respondent Judge just glossed over. While the probate of a will
is a special proceeding wherein courts should relax the rules on evidence,
the goal is to receive the best evidence of which the matter is susceptible
before a purported will is probated or denied probate (Vda. de Ramos v.
Court of Appeals, 81 SCRA 393 [1978]).
There is merit in petitioner’s insistence that the separate wills of the Cunanan
spouses should be probated jointly. Respondent Judge’s view that the Rules
on allowance of wills is couched in singular terms and therefore should be
interpreted to mean that there should be separate probate proceedings for
the wills of the Cunanan spouses is too literal and simplistic an approach.
Such view overlooks the provisions of Section 2, Rule 1 of the Revised Rules
of Court, which advise that the rules shall be "liberally construed in order to
promote their object and to assist the parties in obtaining just, speedy, and
inexpensive determination of every action and proceeding."
A literal application of the Rules should be avoided if they would only result in
the delay in the administration of justice (Acain v. Intermediate Appellate
Court, 155 SCRA 100 [1987]; Roberts v. Leonidas, 129 SCRA 33 [1984]).
What the law expressly prohibits is the making of joint wills either for the
testator’s reciprocal benefit or for the benefit of a third person (Civil Code of
the Philippines, Article 818). In the case at bench, the Cunanan spouses
executed separate wills. Since the two wills contain essentially the same
provisions and pertain to property which in all probability are conjugal in
nature, practical considerations dictate their joint probate. As this Court has
held a number of times, it will always strive to settle the entire controversy in
a single proceeding leaving no root or branch to bear the seeds of future
litigation (Motoomull v. Dela Paz, 187 SCRA 743 [1990]).
This petition cannot be completely resolved without touching on a very
glaring fact — petitioner has always considered herself the sole heir of
Dr. Evelyn Perez Cunanan and because she does not consider herself an
heir of Dr. Jose F. Cunanan, she noticeably failed to notify his heirs of the
filing of the proceedings. Thus, even in the instant petition, she only
impleaded respondent Judge, forgetting that a judge whose order is being
assailed is merely a nominal or formal party (Calderon v. Solicitor General,
215 SCRA 876 [1992]).
The rule that the court having jurisdiction over the reprobate of a will shall
"cause notice thereof to be given as in case of an original will presented for
allowance" (Revised Rules of Court, Rule 27, Section 2) means that with
regard to notices, the will probated abroad should be treated as if it were an
"original will" or a will that is presented for probate for the first time.
Accordingly, compliance with Sections 3 and 4 of Rule 76, which require
publication and notice by mail or personally to the "known heirs, legatees,
and devisees of the testator resident in the Philippines" and to the executor, if
he is not the petitioner, are required.
The brothers and sisters of Dr. Jose F. Cunanan, contrary to petitioner's
claim, are entitled to notices of the time and place for proving the wills. Under
Section 4 of Rule 76 of the Revised Rules of Court, the "court shall also
cause copies of the notice of the time and place fixed for proving the will to
be addressed to the designated or other known heirs, legatees, and devisees
of the testator, . . . "
WHEREFORE, the questioned Order is SET ASIDE. Respondent Judge shall
allow petitioner reasonable time within which to submit evidence needed for
the joint probate of the wills of the Cunanan spouses and see to it that the
brothers and sisters of Dr. Jose F. Cunanan are given all notices and copies
of all pleadings pertinent to the probate proceedings.
SO ORDERED.
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.
SUCCESSION (10 October 2018 Cases) Page 30
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:
SUCCESSION (10 October 2018 Cases) Page 31
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.
SUCCESSION (10 October 2018 Cases) Page 32
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
SUCCESSION (10 October 2018 Cases) Page 33
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
SUCCESSION (10 October 2018 Cases) Page 34
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
SUCCESSION (10 October 2018 Cases) Page 35
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
SUCCESSION (10 October 2018 Cases) Page 36
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.
SUCCESSION (10 October 2018 Cases) Page 37
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
SUCCESSION (10 October 2018 Cases) Page 38
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.
G.R. No. L-2538 September 21, 1951
SUCCESSION (10 October 2018 Cases) Page 39
Testate Estate of the Deceased MARIANO MOLO Y LEGASPI. JUANA
JUAN VDA. DE MOLO, petitioner-appellee,
vs.
LUZ, GLICERIA and CORNELIO MOLO, oppositors-appellants.
Claro M. Recto and Serafin C. Dizon for appellants.
Delgado & Flores for appellee.
BAUTISTA ANGELO, J.:
This is an appeal from an order of the Court of First Instance of Rizal
admitting to probate the last will and testament of the deceased Mariano
Molo y Legaspi executed on August 17, 1918. The oppositors-appellants
brought the case on appeal to this Court for the reason that the value of the
properties involved exceeds P50,000.
Mariano Molo y Legaspi died on January 24, 1941, in the municipality of
Pasay, province of Rizal, without leaving any forced heir either in the
descending or ascending line. He was survived, however, by his wife, the
herein petitioner Juana Juan Vda. de Molo, and by his nieces and nephew,
the oppositors-appellants, Luz Gliceria and Cornelio, all surnamed Molo, who
were the legitimate children of Candido Molo y Legaspi, deceased brother of
the testator. Mariano Molo y Legaspi left two wills, one executed on August
17, 1918, (Exhibit A) and another executed on June 20, 1939. (Exhibit I). The
later will executed in 1918.
On February 7, 1941, Juana Juan Vda. de Molo, filed in the Court of First
Instance of Rizal a petition, which was docketed as special proceeding No.
8022 seeking the probate of the will executed by the deceased on June 20,
1939. There being no opposition, the will was probated. However, upon
petition filed by the herein oppositors, the order of the court admitting the will
to probate was set aside and the case was reopened. After hearing, at which
both parties presented their evidence, the court rendered decision denying
the probate of said will on the ground that the petitioner failed to prove that
the same was executed in accordance with law.
In view of the disallowance of the will executed on June 20, 1939, the widow
on February 24, 1944, filed another petition for the probate of the will
executed by the deceased on August 17, 1918, which was docketed as
special proceeding No. 56, in the same court. Again, the same oppositors
filed an opposition to the petition based on three grounds: (1) that petitioner
is now estopped from seeking the probate of the will of 1918; (2) that said will
has not been executed in the manner required by law and (3) that the will has
been subsequently revoked. But before the second petition could be heard,
the battle for liberation came and the records of the case were destroyed.
Consequently, a petition for reconstitution was filed, but the same was found
to be impossible because neither petitioner nor oppositors could produce the
copies required for its reconstitution. As a result, petitioner filed a new
petition on September 14, 1946, similar to the one destroyed, to which the
oppositors filed an opposition based on the same grounds as those
contained in their former opposition. Then, the case was set for trial, and on
May 28, 1948, the court issued an order admitting the will to probate already
stated in the early part of this decision. From this order the oppositors
appealed assigning six errors, to wit.
I. The probate court erred in not holding that the present petitioner
voluntarily and deliberately frustrated the probate of the will dated
June 20, 1939, in special proceeding No. 8022, in order to enable
her to obtain the probate of another alleged will of Molo dated 191.
II. The court a quo erred in not holding that the petitioner is now
estopped from seeking the probate of Molo's alleged will of 1918.
III. The lower court erred in not holding that petitioner herein has
come to court with "unclean hands" and as such is not entitled to
relief.
IV. The probate court erred in not holding that Molo's alleged will of
August 17, 1918 was not executed in the manner required by law.
V. The probate court erred in not holding that the alleged will of 1918
was deliberately revoked by Molo himself.
VI. The lower court erred in not holding that Molo's will of 1918 was
subsequently revoked by the decedent's will of 1939.
In their first assignment of error, counsel for oppositors contend that the
probate court erred in not holding that the petitioner voluntarily and
deliberately frustrated the probate of the will dated June 20, 1939, in order to
enable her to obtain the probate of the will executed by the deceased on
August 17, 1918, pointing out certain facts and circumstances with their
opinion indicate that petitioner connived with the witness Canuto Perez in an
effort to defeat and frustrate the probate of the 1939 will because of her
knowledge that said will intrinsically defective in that "the one and only
testamentory disposition thereof was a "disposicion captatoria". These
circumstances, counsel for the appellants contend, constitute a series of
steps deliberately taken by petitioner with a view to insuring the realization of
her plan of securing the probate of the 1918 will which she believed would
better safeguard her right to inherit from the decease.
These imputations of fraud and bad faith allegedly committed in connection
with special proceedings No. 8022, now closed and terminated, are
vigorously met by counsel for petitioner who contends that to raise them in
these proceedings which are entirely new and distinct and completely
independent from the other is improper and unfair as they find no support
whatsoever in any evidence submitted by the parties in this case. They are
merely based on the presumptions and conjectures not supported by any
proof. For this reason, counsel, contends, the lower court was justified in
disregarding them and in passing them sub silentio in its decision.
A careful examination of the evidence available in this case seems to justify
this contention. There is indeed no evidence which may justify the insinuation
that petitioner had deliberately intended to frustrate the probate of the 1939
SUCCESSION (10 October 2018 Cases) Page 40
will of the deceased to enable her to seek the probate of another will other
than a mere conjecture drawn from the apparently unexpected testimony of
Canuto Perez that he went out of the room to answer an urgent call of nature
when Artemio Reyes was signing the will and the failure of petitioner later to
impeach the character of said witness in spite of the opportunity given her by
the court to do so. Apart from this insufficiency of evidence, the record
discloses that this failure has been explained by petitioner when she
informed the court that she was unable to impeach the character of her
witness Canuto Perez because of her inability to find witnesses who may
impeach him, and this explanation stands uncontradicted. Whether this
explanation is satisfactory or not, it is not now, for us to determine. It is an
incident that comes within the province of the former case. The failure of
petitioner to present the testimony of Artemio Reyes at the hearing has also
been explained, and it appears that petitioner has filed because his
whereabouts could not be found. Whether this is true or not is also for this
Court to determine. It is likewise within the province and function of the court
in the former case. And the unfairness of this imputation becomes more
glaring when we stock of the developments that had taken place in these
proceedings which show in bold relief the true nature of the conduct,
behavior and character of the petitioner so bitterly assailed and held in
disrepute by the oppositors.
It should be recalled that the first petition for the probate of the will executed
on June 20, 1939, was filed on February 7, 1941, by the petitioner. There
being no opposition, the will was probated. Subsequently, however, upon
petition of the herein oppositors, the order of the court admitting said will to
probate was set aside, over the vigorous opposition of the herein petitioner,
and the case was reopened. The reopening was ordered because of the
strong opposition of the oppositors who contended that he will had not been
executed as required by law. After the evidence of both parties had been
presented, the oppositors filed an extensive memorandum wherein they
reiterated their view that the will should be denied probate. And on the
strenght of this opposition, the court disallowed the will.
If petitioner then knew that the 1939 will was inherently defective and would
make the testamentary disposition in her favor invalid and ineffective,
because it is a "disposicion captatoria", which knowledge she may easily
acquire through consultation with a lawyer, there was no need her to go
through the order of filing the petition for the probate of the will. She could
accomplish her desire by merely suppressing the will or tearing or destroying
it, and then take steps leading to the probate of the will executed in 1918. But
for her conscience was clear and bade her to take the only proper step
possible under the circumstances, which is to institute the necessary
proceedings for the probate of the 1939 will. This she did and the will was
admitted to probate. But then the unexpected happened. Over her vigorous
opposition, the herein appellants filed a petition for reopening, and over her
vigorous objection, the same was granted and the case was reopened. Her
motion for reconsideration was denied. Is it her fault that the case was
reopened? Is it her fault that the order admitting the will to probate was set
aside? That was a contingency which petitioner never expected. Had
appellants not filed their opposition to the probate of the will and had they
limited their objection to the intrinsic validity of said will, their plan to defeat
the will and secure the intestacy of the deceased would have perhaps been
accomplished. But they failed in their strategy. If said will was denied probate
it is due to their own effort. It is now unfair to impute bad faith petitioner
simply because she exerted every effort to protect her own interest and
prevent the intestacy of the deceased to happen.
Having reached the foregoing conclusions, it is obvious that the court did not
commit the second and third errors imputed to it by the counsel for
appellants. Indeed, petitioner cannot be considered guilty or estoppel which
would prevent her from seeking the probate of the 1918 will simply because
of her effort to obtain the allowance of the 1939 will has failed considering
that in both the 1918 and 1939 wills she was in by her husband as his
universal heir. Nor can she be charged with bad faith far having done so
because of her desire to prevent the intestacy of her husband. She cannot be
blamed being zealous in protecting her interest.
The next contention of appellants refers to the revocatory clause contained in
1939 will of the deceased which was denied probate. They contend that,
notwithstanding the disallowance of said will, the revocatory clause is valid
and still has the effect of nullifying the prior of 1918.
Counsel for petitioner meets this argument by invoking the doctrine laid down
in the case of Samson vs. Naval, (41 Phil., 838). He contends that the facts
involved in that case are on all fours with the facts of this case. Hence, the
doctrine is that case is here controlling.
There is merit in this contention. We have carefully read the facts involved in
the Samson case we are indeed impressed by their striking similarity with the
facts of this case. We do not need to recite here what those facts are; it is
enough to point out that they contain many points and circumstances in
common. No reason, therefore, is seen by the doctrine laid down in that case
(which we quote hereunder) should not apply and control the present case.
A subsequent will, containing a clause revoking a previous will,
having been disallowed, for the reason that it was not executed in
conformity with the provisions of section 618 of the Code of Civil
Procedure as to the making of wills, cannot produce the effect of
annulling the previous will, inasmuch as said revocatory clause is
void. (41 Phil., 838.)
Apropos of this question, counsel for oppositors make the remark that, while
they do not disagree with the soundness of the ruling laid down in the
Samson case, there is reason to abandon said ruling because it is archaic or
antiquated and runs counter to the modern trend prevailing in American
SUCCESSION (10 October 2018 Cases) Page 41
jurisprudence. They maintain that said ruling is no longer controlling but
merely represents the point of view of the minority and should, therefore, be
abandoned, more so if we consider the fact that section 623 of our Code of
Civil Procedure, which governs the revocation of wills, is of American origin
and as such should follow the prevailing trend of the majority view in the
United States. A long line of authorities is cited in support of this contention.
And these authorities hold the view, that "an express revocation is
immediately effective upon the execution of the subsequent will, and does
not require that it first undergo the formality of a probate proceeding". (p. 63,
appellants' brief .
While they are many cases which uphold the view entertained by counsel for
oppositors, and that view appears to be in controlling the states where the
decisions had been promulgated, however, we are reluctant to fall in line with
the assertion that is now the prevailing view in the United States. In the
search we have made of American authorities on the subject, we found
ourselves in a pool of conflicting opinions perhaps because of the peculiar
provisions contained in the statutes adopted by each State in the subject of
revocation of wills. But the impression we gathered from a review and the
study of the pertinent authorities is that the doctrine laid down in the Samson
case is still a good law. On page 328 of the American Jurisprudence Vol. 57,
which is a revision Published in 1948, we found the following passages which
in our opinion truly reflect the present trend of American jurisprudence on this
matter affecting the revocation of wills:
SEC. 471. Observance of Formalities in Execution of Instrument. —
Ordinarily, statutes which permit the revocation of a will by another
writing provide that to be effective as a revocation, the writing must
be executed with the same formalities which are required to be
observed in the execution of a will. Accordingly, where, under the
statutes, attestation is necessary to the making of a valid will, an
unattested non testamentary writing is not effective to revoke a prior
will. It has been held that a writing fails as a revoking instrument
where it is not executed with the formalities requisite for the
execution of a will, even though it is inscribed on the will itself,
although it may effect a revocation by cancellation or obliteration of
the words of the will. A testator cannot reserve to himself the power
to modify a will by a written instrument subsequently prepared but
not executed in the manner required for a will.
SEC, 472. Subsequent Unexecuted, Invalid, or Ineffective Will or
Codicil. — A will which is invalid because of the incapacity of the
testator, or of undue influence can have no effect whatever as a
revoking will. Moreover, a will is not revoked by the unexecuted draft
of a later one. Nor is a will revoked by a defectively executed will or
codicil, even though the latter contains a clause expressly revoking
the former will, in a jurisdiction where it is provided by a controlling
 statute that no writing other than a testamentary instrument is
sufficient to revoke a will, for the simple reason that there is no
revoking will. Similarly where the statute provides that a will may be
revoked by a subsequent will or other writing executed with the same
formalities as are required in the execution of wills, a defectively
executed will does not revoke a prior will, since it cannot be said that
there is a writing which complies with the statute. Moreover, a will or
codicil which, on account of the manner in which it is executed, is
sufficient to pass only personally does not affect dispositions of real
estate made by a former will, even though it may expressly purport to
do so. The intent of the testator to revoke is immaterial, if he has not
complied with the statute. (57 Am. Jur., 328, 329.)
We find the same opinion in the American Law Reports, Annotated, edited in
1939. On page 1400, Volume 123, there appear many authorities on the
"application of rules where second will is invalid", among which a typical one
is the following:
It is universally agreed that where the second will is invalid on
account of not being executed in accordance with the provisions of
the statute, or where the testator who has not sufficient mental
capacity to make a will or the will is procured through undue
influence, or the such, in other words, where the second will is really
no will, it does not revoke the first will or affect it in any manner. Mort
vs. Baker University (193-5) 229 Mo. App., 632, 78 S.W. (2d), 498.
These treaties cannot be mistaken. They uphold the view on which the ruling
in the Samson case is predicated. They reflect the opinion that this ruling is
sound and good and for this reason, we see no justification for abondoning it
as now suggested by counsel for the oppositors.
It is true that our law on the matter (sec. 623, Code Civil Procedure) provides
that a will may be some will, codicil, or other writing executed as proved in
case of wills" but it cannot be said that the 1939 will should be regarded, not
as a will within the meaning of said word, but as "other writing executed as
provided in the case of wills", simply because it was denied probate. And
even if it be regarded as any other writing within the meaning of said clause,
there is authority for holding that unless said writing is admitted to probate, it
cannot have the effect of revocation. (See 57 Am. Jur. pp. 329-330).
But counsel for oppositors contemned that, regardless of said revocatory
clause, said will of 1918 cannot still be given effect because of the
presumption that it was deliberately revoked by the testator himself. The
oppositors contend that the testator, after executing the 1939 will, and with
full knowledge of the recovatory clause contained said will, himself
deliberately destroyed the original of the 1918 will, and for that reason the will
submitted by petitioner for probate in these proceedings is only a duplicate of
said original.
SUCCESSION (10 October 2018 Cases) Page 42
There is no evidence which may directly indicate that the testator deliberately
destroyed the original of the 1918 will because of his knowledge of the
revocatory clause contained in the will he executed in 1939. The only
evidence we have is that when the first will was executed in 1918, Juan
Salcedo, who prepared it, gave the original and copies to the testator himself
and apparently they remained in his possession until he executed his second
will in 1939. And when the 1939 will was denied probate on November 29,
1943, and petitioner was asked by her attorney to look for another will, she
found the duplicate copy (Exhibit A) among the papers or files of the testator.
She did not find the original.
If it can be inferred that the testator deliberately destroyed the 1918 will
because of his knowledge of the revocatory clause of the 1939 will, and it is
true that he gave a duplicate copy thereof to his wife, the herein petitioner,
the most logical step for the testator to take is to recall said duplicate copy in
order that it may likewise be destroyed. But this was not done as shown by
the fact that said duplicate copy remained in the possession of petitioner. It is
possible that because of the long lapse of twenty-one (21) years since the
first will was executed, the original of the will had been misplaced or lost, and
forgetting that there was a copy, the testator deemed it wise to execute
another will containing exactly the same testamentary dispositions. Whatever
may be the conclusion we may draw from this chain of circumstances, the
stubborn fact is that there is no direct evidence of voluntary or deliberate
destruction of the first will by the testator. This matter cannot be inference or
conjectur.
Granting for the sake of argument that the earlier will was voluntarily
destroyed by the testator after the execution of the second will, which
revoked the first, could there be any doubt, under this theory, that said earlier
will was destroyed by the testator in the honest belief that it was no longer
necessary because he had expressly revoked it in his will of 1939? In other
words, can we not say that the destruction of the earlier will was but the
necessary consequence of the testator's belief that the revocatory clause
contained in the subsequent will was valid and the latter would be given
effect? If such is the case, then it is our opinion that the earlier will can still be
admitted to probate under the principle of "dependent relative revocation".
This doctrine is known as that of dependent relative revocation, and
is usually applied where the testator cancels or destroys a will or
executes an instrument intended to revoke a will with a present
intention to make a new testamentary disposition as a substitute for
the old, and the new disposition is not made or, if made, fails of effect
for same reason. The doctrine is n limited to the existence of some
other document, however, and has been applied where a will was
destroyed as a consequence of a mistake of law. . . . (68 C.J.P. 799).
The rule is established that where the act of destruction is connected
with the making of another will so as fairly to raise the inference that
 the testator meant the revocation of the old to depend upon the
efficacy of a new disposition intended to be substituted, the
revocation will be conditional and dependent upon the efficacy of the
new disposition; and if, for any reason, the new will intended to be
made as a substitute is inoperative, the revocation fails and the
original will remains in full force. (Gardner, pp. 232, 233.)
This is the doctrine of dependent relative revocation. The failure of a
new testamentary disposition upon whose validity the revocation
depends, is equivalent to the non-fulfillment of a suspensive
conditions, and hence prevents the revocation of the original will. But
a mere intent to make at some time a will in the place of that
destroyed will not render the destruction conditional. It must appear
that the revocation is dependent upon the valid execution of a new
will. (1 Alexander, p. 751; Gardner, p. 253.)
We hold therefore, that even in the supposition that the destruction of the
original will by the testator could be presumed from the failure of the
petitioner to produce it in court, such destruction cannot have the effect of
defeating the prior will of 1918 because of the fact that it is founded on the
mistaken belief that the will of 1939 has been validly executed and would be
given due effect. The theory on which this principle is predicated is that the
testator did not intend to die intestate. And this intention is clearly manifest
when he executed two wills on two different occasion and instituted his wife
as his universal heir. There can therefore be no mistake as to his intention of
dying testate.
The remaining question to be determined refers to the sufficiency of the
evidence to prove the due execution of the will.
The will in question was attested, as required by law, by three witnesses,
Lorenzo Morales, Rufino Enriquez, and Angel Cuenca. The first two
witnesses died before the commencement of the present proceedings. So
the only instrumental witness available was Angel Cuenca and under our law
and precedents, his testimony is sufficient to prove the due execution of the
will. However, petitioner presented not only the testimony of Cuenca but
placed on the witness stand Juan Salcedo, the notary public who prepared
and notarized the will upon the express desire and instruction of the testator,
The testimony of these witnesses shows that the will had been executed in
the manner required by law. We have read their testimony and we were
impressed by their readiness and sincerity. We are convinced that they told
the truth.
Wherefore, the order appealed from is hereby affirmed, with costs against
the appellants.1âwphïl.nêt
Paras, C.J. Feria, Pablo Bengzon, Tuason and Jugo JJ., concur.
G.R. No. 17714 May 31, 1922
In the mater of the estate of Jesus de Leon.
IGNACIA DIAZ, petitioner-appellant,
SUCCESSION (10 October 2018 Cases) Page 43
vs.
ANA DE LEON, opponent-appellee.
Montinola, Montinola & Hontiveros and Jose Lopez Vito for appellant.
Francisco A. Delgado, Powell & Hill and Padilla & Treñas for appellee.
ROMUALDEZ, J.:
The only question raised in this case is whether or to the will executed by
Jesus de Leon, now, was revoked by him.
The petitioner denies such revocation, while the contestant affirms the same
by alleging that the testator revoked his will by destroying it, and by executing
another will expressly revoking the former.
We find that the second will Exhibit 1 executed by the deceased is not cloth
with all the necessary requisites to constitute a sufficient revocation.
But according to the statute governing the subject in this jurisdiction, the
destruction of a will animo revocandi constitutes, in itself, a sufficient
revocation. (Sec. 623, Code of Civil Procedure.)lävvphì1·né+
From the evidence submitted in this case, it appears that the testator, shortly
after the execution of the first will in question, asked that the same be
returned to him. The instrument was returned to the testator who ordered his
servant to tear the document. This was done in his presence and before a
nurse who testified to this effect. After some time, the testator, being asked
by Dr. Cornelio Mapa about the will, said that it had been destroyed.
The intention of revoking the will is manifest from the established fact that the
testator was anxious to withdraw or change the provisions he had made in
his first will. This fact is disclosed by the testator's own statements to the
witnesses Canto and the Mother Superior of the Hospital where he was
confined.
The original will herein presented for probate having been destroyed
with animo revocandi, cannot now be probated as the will and last testament
of Jesus de Leon.
Judgement is affirmed with costs against the petitioner. So ordered.
G.R. No. 76464 February 29, 1988
TESTATE ESTATE OF THE LATE ADRIANA MALOTO, ALDINA MALOTO
CASIANO, CONSTANCIO MALOTO, PURIFICACION MIRAFLOR, ROMAN
CATHOLIC CHURCH OF MOLO, AND ASILO DE MOLO, petitioners,
vs.
COURT OF APPEALS, PANFILO MALOTO AND FELINO
MALOTO, respondents.
SARMIENTO, J.:
This is not the first time that the parties to this case come to us. In fact, two
other cases directly related to the present one and involving the same parties
had already been decided by us in the past. In G.R. No. L-30479, 1 which
was a petition for certiorari and mandamus instituted by the petitioners
herein, we dismissed the petition ruling that the more appropriate remedy of
the petitioners is a separate proceeding for the probate of the will in question.
Pursuant to the said ruling, the petitioners commenced in the then Court of
First Instance of Iloilo, Special Proceeding No. 2176, for the probate of the
disputed will, which was opposed by the private respondents presently,
Panfilo and Felino both surnamed Maloto. The trial court dismissed the
petition on April 30, 1970. Complaining against the dismissal, again, the
petitioners came to this Court on a petition for review by certiorari. 2 Acting on
the said petition, we set aside the trial court's order and directed it to proceed
to hear the case on the merits. The trial court, after hearing, found the will to
have already been revoked by the testatrix. Adriana Maloto, and thus, denied
the petition. The petitioners appealed the trial court's decision to the
Intermediate Appellate Court which, on June 7, 1985, affirmed the order. The
petitioners' motion for reconsideration of the adverse decision proved to be of
no avail, hence, this petition.
For a better understanding of the controversy, a factual account would be a
great help.
On October 20, 1963, Adriana Maloto died leaving as heirs her niece and
nephews, the petitioners Aldina Maloto-Casiano and Constancio, Maloto, and
the private respondents Panfilo Maloto and Felino Maloto. Believing that the
deceased did not leave behind a last will and testament, these four heirs
commenced on November 4, 1963 an intestate proceeding for the settlement
of their aunt's estate. The case was instituted in the then Court of First
Instance of Iloilo and was docketed as Special Proceeding No. 1736.
However, while the case was still in progress, or to be exact on February 1,
1964, the parties — Aldina, Constancio, Panfilo, and Felino — executed an
agreement of extrajudicial settlement of Adriana's estate. The agreement
provided for the division of the estate into four equal parts among the parties.
The Malotos then presented the extrajudicial settlement agreement to the
trial court for approval which the court did on March 21, 1964. That should
have signalled the end of the controversy, but, unfortunately, it had not.
Three years later, or sometime in March 1967, Atty. Sulpicio Palma, a former
associate of Adriana's counsel, the late Atty. Eliseo Hervas, discovered a
document entitled "KATAPUSAN NGA PAGBUBULAT-AN (Testamento),"
dated January 3,1940, and purporting to be the last will and testament of
Adriana. Atty. Palma claimed to have found the testament, the original copy,
while he was going through some materials inside the cabinet drawer
formerly used by Atty. Hervas. The document was submitted to the office of
the clerk of the Court of First Instance of Iloilo on April 1, 1967. Incidentally,
while Panfilo and Felino are still named as heirs in the said will, Aldina and
Constancio are bequeathed much bigger and more valuable shares in the
estate of Adriana than what they received by virtue of the agreement of
extrajudicial settlement they had earlier signed. The will likewise gives
SUCCESSION (10 October 2018 Cases) Page 44
devises and legacies to other parties, among them being the petitioners Asilo
de Molo, the Roman Catholic Church of Molo, and Purificacion Miraflor.
Thus, on May 24, 1967, Aldina and Constancio, joined by the other devisees
and legatees named in the will, filed in Special Proceeding No. 1736 a
motion for reconsideration and annulment of the proceedings therein and for
the allowance of the will When the trial court denied their motion, the
petitioner came to us by way of a petition for certiorari and mandamus
assailing the orders of the trial court . 3 As we stated earlier, we dismissed
that petition and advised that a separate proceeding for the probate of the
alleged will would be the appropriate vehicle to thresh out the matters raised
by the petitioners.
Significantly, the appellate court while finding as inconclusive the matter on
whether or not the document or papers allegedly burned by the househelp of
Adriana, Guadalupe Maloto Vda. de Coral, upon instructions of the testatrix,
was indeed the will, contradicted itself and found that the will had been
revoked. The respondent court stated that the presence of animus
revocandi in the destruction of the will had, nevertheless, been sufficiently
proven. The appellate court based its finding on the facts that the document
was not in the two safes in Adriana's residence, by the testatrix going to the
residence of Atty. Hervas to retrieve a copy of the will left in the latter's
possession, and, her seeking the services of Atty. Palma in order to have a
new will drawn up. For reasons shortly to be explained, we do not view such
facts, even considered collectively, as sufficient bases for the conclusion that
Adriana Maloto's will had been effectively revoked.
There is no doubt as to the testamentary capacity of the testatrix and the due
execution of the will. The heart of the case lies on the issue as to whether or
not the will was revoked by Adriana.
The provisions of the new Civil Code pertinent to the issue can be found in
Article 830.
Art. 830. No will shall be revoked except in the following
cases:
(1) By implication of law; or
(2) By some will, codicil, or other writing executed as
provided in case of wills: or
(3) By burning, tearing, cancelling, or obliterating the will with
the intention of revoking it, by the testator himself, or by
some other person in his presence, and by his express
direction. If burned, torn cancelled, or obliterated by some
other person, without the express direction of the testator,
the will may still be established, and the estate distributed in
accordance therewith, if its contents, and due execution, and
the fact of its unauthorized destruction, cancellation, or
obliteration are established according to the Rules of Court.
(Emphasis Supplied.)
It is clear that the physical act of destruction of a will, like burning in this
case, does not per se constitute an effective revocation, unless the
destruction is coupled with animus revocandi on the part of the testator. It is
not imperative that the physical destruction be done by the testator himself. It
may be performed by another person but under theexpress direction and in
the presence of the testator. Of course, it goes without saying that the
document destroyed must be the will itself.
In this case, while animus revocandi or the intention to revoke, may be
conceded, for that is a state of mind, yet that requisite alone would not
suffice. "Animus revocandi is only one of the necessary elements for the
effective revocation of a last will and testament. The intention to revoke must
be accompanied by the overt physical act of burning, tearing, obliterating, or
cancelling the will carried out by the testator or by another person in his
presence and under his express direction. There is paucity of evidence to
show compliance with these requirements. For one, the document or papers
burned by Adriana's maid, Guadalupe, was not satisfactorily established to
be a will at all, much less the will of Adriana Maloto. For another, the burning
was not proven to have been done under the express direction of Adriana.
And then, the burning was not in her presence. Both witnesses, Guadalupe
and Eladio, were one in stating that they were the only ones present at the
place where the stove (presumably in the kitchen) was located in which the
papers proffered as a will were burned.
The respondent appellate court in assessing the evidence presented by the
private respondents as oppositors in the trial court, concluded that the
testimony of the two witnesses who testified in favor of the will's revocation
appear "inconclusive." We share the same view. Nowhere in the records
before us does it appear that the two witnesses, Guadalupe Vda. de Corral
and Eladio Itchon, both illiterates, were unequivocably positive that the
document burned was indeed Adriana's will. Guadalupe, we think, believed
that the papers she destroyed was the will only because, according to her,
Adriana told her so. Eladio, on the other hand, obtained his information that
the burned document was the will because Guadalupe told him so, thus, his
testimony on this point is double hearsay.
At this juncture, we reiterate that "(it) is an important matter of public interest
that a purported win is not denied legalization on dubious grounds.
Otherwise, the very institution of testamentary succession will be shaken to
its very foundations ...."4
The private respondents in their bid for the dismissal of the present action for
probate instituted by the petitioners argue that the same is already barred
by res adjudicata. They claim that this bar was brought about by the
petitioners' failure to appeal timely from the order dated November 16, 1968
of the trial court in the intestate proceeding (Special Proceeding No. 1736)
denying their (petitioners') motion to reopen the case, and their prayer to
SUCCESSION (10 October 2018 Cases) Page 45
annul the previous proceedings therein and to allow the last will and
testament of the late Adriana Maloto. This is untenable.
The doctrine of res adjudicata finds no application in the present controversy.
For a judgment to be a bar to a subsequent case, the following requisites
must concur: (1) the presence of a final former judgment; (2) the former
judgment was rendered by a court having jurisdiction over the subject matter
and the parties; (3) the former judgment is a judgment on the merits; and (4)
there is, between the first and the second action, Identity of parties, of
subject matter, and of cause of action. 5 We do not find here the presence of
all the enumerated requisites.
For one, there is yet, strictly speaking, no final judgment rendered insofar as
the probate of Adriana Maloto's will is concerned. The decision of the trial
court in Special Proceeding No. 1736, although final, involved only the
intestate settlement of the estate of Adriana. As such, that judgment could
not in any manner be construed to be final with respect to the probate of the
subsequently discovered will of the decedent. Neither is it a judgment on the
merits of the action for probate. This is understandably so because the trial
court, in the intestate proceeding, was without jurisdiction to rule on the
probate of the contested will . 6 After all, an action for probate, as it implies, is
founded on the presence of a will and with the objective of proving its due
execution and validity, something which can not be properly done in an
intestate settlement of estate proceeding which is predicated on the
assumption that the decedent left no will. Thus, there is likewise no Identity
between the cause of action in intestate proceeding and that in an action for
probate. Be that as it may, it would be remembered that it was precisely
because of our ruling in G.R. No. L-30479 that the petitioners instituted this
separate action for the probate of the late Adriana Maloto's will. Hence, on
these grounds alone, the position of the private respondents on this score
can not be sustained.
One last note. The private respondents point out that revocation could be
inferred from the fact that "(a) major and substantial bulk of the properties
mentioned in the will had been disposed of: while an insignificant portion of
the properties remained at the time of death (of the testatrix); and,
furthermore, more valuable properties have been acquired after the
execution of the will on January 3,1940." 7 Suffice it to state here that as
these additional matters raised by the private respondents are extraneous to
this special proceeding, they could only be appropriately taken up after the
will has been duly probated and a certificate of its allowance issued.
WHEREFORE, judgment is hereby rendered REVERSING and SETTING
ASIDE the Decision dated June 7, 1985 and the Resolution dated October
22, 1986, of the respondent Court of Appeals, and a new one ENTERED for
the allowance of Adriana Maloto's last will and testament. Costs against the
private respondents.
This Decision is IMMEDIATELY EXECUTORY.
SO ORDERED.
G.R. No. L-26317 January 29, 1927
Estate of Miguel Mamuyac, deceased.
FRANCISCO GAGO, petitioner-appellant,
vs.
CORNELIO MAMUYAC, AMBROSIO LARIOSA,
FELICIANA BAUZON, and CATALINA MAMUYAC, opponents-appellees.
Nicanor Tavora for appellant.
Jose Rivera for appellees.
JOHNSON, J.:
The purpose of this action was to obtain the probation of a last will and
testament of Miguel Mamuyac, who died on the 2d day of January, 1922, in
the municipality of Agoo of the Province of La Union. It appears from the
record that on or about the 27th day of July, 1918, the said Miguel Mamuyac
executed a last will and testament (Exhibit A). In the month of January, 1922,
the said Francisco Gago presented a petition in the Court of First Instance of
the Province of La Union for the probation of that will. The probation of the
same was opposed by Cornelio Mamuyac, Ambrosio Lariosa, Feliciana
Bauzon, and Catalina Mamuyac (civil cause No. 1144, Province of La Union).
After hearing all of the parties the petition for the probation of said will was
denied by the Honorable C. M. Villareal on the 2d day of November, 1923,
upon the ground that the deceased had on the 16th day of April, 1919,
executed a new will and testament.
On the 21st day of February, 1925, the present action was commenced. Its
purpose was to secure the probation of the said will of the 16th day of April,
1919 (Exhibit 1). To said petition Cornelio Mamuyac, Ambrosio Lariosa,
Feliciana Bauzon, and Catalina Mamuyac presented their oppositions,
alleging (a) that the said will is a copy of the second will and testament
executed by the said Miguel Mamuyac; (b) that the same had been cancelled
and revoked during the lifetime of Miguel Mamuyac and (c) that the said will
was not the last will and testament of the deceased Miguel Mamuyac.
Upon the issue thus presented, the Honorable Anastacio R. Teodoro, judge,
after hearing the respective parties, denied the probation of said will of April
16, 1919, upon the ground that the same had been cancelled and revoked in
the year 1920. Judge Teodoro, after examining the evidence adduced, found
that the following facts had been satisfactorily proved:
That Exhibit A is a mere carbon of its original which remained in the
possession of the deceased testator Miguel Mamuyac, who revoked
it before his death as per testimony of witness Jose Fenoy, who
typed the will of the testator on April 16, 1919, and Carlos Bejar, who
saw on December 30, 1920, the original Exhibit A (will of 1919)
actually cancelled by the testator Miguel Mamuyac, who assured
SUCCESSION (10 October 2018 Cases) Page 46
Carlos Bejar that inasmuch as he had sold him a house and the land
where the house was built, he had to cancel it (the will of 1919),
executing thereby a new testament. Narcisa Gago in a way
corroborates the testimony of Jose Fenoy, admitting that the will
executed by the deceased (Miguel Mamuyac) in 1919 was found in
the possession of father Miguel Mamuyac. The opponents have
successfully established the fact that father Miguel Mamuyac had
executed in 1920 another will. The same Narcisa Gago, the sister of
the deceased, who was living in the house with him, when cross-
examined by attorney for the opponents, testified that the original
Exhibit A could not be found. For the foregoing consideration and for
the reason that the original of Exhibit A has been cancelled by the
deceased father Miguel Mamuyac, the court disallows the probate of
Exhibit A for the applicant." From that order the petitioner appealed.
The appellant contends that the lower court committed an error in not finding
from the evidence that the will in question had been executed with all the
formalities required by the law; that the same had been revoked and
cancelled in 1920 before his death; that the said will was a mere carbon copy
and that the oppositors were not estopped from alleging that fact.
With reference to the said cancellation, it may be stated that there is positive
proof, not denied, which was accepted by the lower court, that will in question
had been cancelled in 1920. The law does not require any evidence of the
revocation or cancellation of a will to be preserved. It therefore becomes
difficult at times to prove the revocation or cancellation of wills. The fact that
such cancellation or revocation has taken place must either remain unproved
of be inferred from evidence showing that after due search the original will
cannot be found. Where a will which cannot be found is shown to have been
in the possession of the testator, when last seen, the presumption is, in the
absence of other competent evidence, that the same was cancelled or
destroyed. The same presumption arises where it is shown that the testator
had ready access to the will and it cannot be found after his death. It will not
be presumed that such will has been destroyed by any other person without
the knowledge or authority of the testator. The force of the presumption of
cancellation or revocation by the testator, while varying greatly, being weak
or strong according to the circumstances, is never conclusive, but may be
overcome by proof that the will was not destroyed by the testator with intent
to revoke it.
In view of the fat that the original will of 1919 could not be found after the
death of the testator Miguel Mamuyac and in view of the positive proof that
the same had been cancelled, we are forced to the conclusion that the
conclusions of the lower court are in accordance with the weight of the
evidence. In a proceeding to probate a will the burden of proofs is upon the
proponent clearly to establish not only its execution but its existence. Having
proved its execution by the proponents, the burden is on the contestant to
show that it has been revoked. In a great majority of instances in which wills
are destroyed for the purpose of revoking them there is no witness to the act
of cancellation or destruction and all evidence of its cancellation perishes
with the testator. Copies of wills should be admitted by the courts with great
caution. When it is proven, however, by proper testimony that a will was
executed in duplicate and each copy was executed with all the formalities
and requirements of the law, then the duplicate may be admitted in evidence
when it is made to appear that the original has been lost and was not
cancelled or destroyed by the testator. (Borromeo vs. Casquijo, G.R. No. L-
26063.)1
After a careful examination of the entire record, we are fully persuaded that
the will presented for probate had been cancelled by the testator in 1920.
Therefore the judgment appealed from is hereby affirmed. And without any
finding as to costs, it is so ordered.
Street, Malcolm, Villamor, Ostrand, Romualdez and Villa-Real, JJ., concur.

SUCCESSION (10 October 2018 Cases) Page 47