CivRev Succession Cases

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Stevenson S. Yu, XU Law, 2 Semester 2018-2019 Civil Law Review II (Atty. Jugador)
Cases on Succession
1. Caneda vs CA (G.R. No. 103554, May 28, 1993)
TEODORO CANEDA, LORENZA CANEDA, TERESA CANEDA, JUAN CABALLERO,

AUREA CABALLERO, OSCAR LAROSA, HELEN CABALLERO, SANTOS CABALLERO,
PABLO CABALLERO, VICTOR RAGA, MAURICIA RAGA, QUIRICA RAGA, RUPERTO
ABAPO, represented herein by his Attorney-in-Fact, ARMSTICIA * ABAPO VELANO, and
CONSESO CANEDA, represented herein by his heirs, JESUS CANEDA, NATIVIDAD
CANEDA and ARTURO CANEDA, petitioners, vs. HON. COURT OF APPEALS and
WILLIAM CABRERA, as Special Administrator of the Estate of Mateo Caballero,
respondents.
REGALADO, J.:
Presented for resolution by this Court in the present petition for review on certiorari is the
issue of whether or not the attestation clause contained in the last will and testament of the late
Mateo Caballero complies with the requirements of Article 805, in relation to Article 809, of the
Civil Code.
The records show that on December 5, 1978, Mateo Caballero, a widower without any children
and already in the twilight years of his life, executed a last will and testament at his residence
in Talisay, Cebu before three attesting witnesses, namely, Cipriano Labuca, Gregorio Cabando
and Flaviano Toregosa. The said testator was duly assisted by his lawyer, Atty. Emilio
Lumontad, and a notary public, Atty. Filoteo Manigos, in the preparation of that last will.1 It
was declared therein, among other things, that the testator was leaving by way of legacies and
devises his real and personal properties to Presentacion Gaviola, Angel Abatayo, Rogelio
Abatayo, Isabelito Abatayo, Benoni G. Cabrera and Marcosa Alcantara, all of whom do not
appear to be related to the testator.2
Four months later, or on April 4, 1979, Mateo Caballero himself filed a petition docketed as
Special Proceeding No. 3899-R before Branch II of the then Court of First Instance of Cebu
seeking the probate of his last will and testament. The probate court set the petition for hearing
on August 20, 1979 but the same and subsequent scheduled hearings were postponed for one
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reason to another. On May 29, 1980, the testator passed away before his petition could finally
be heard by the probate court.3 On February 25, 1981, Benoni Cabrera, on of the legatees
named in the will, sough his appointment as special administrator of the testator's estate, the
estimated value of which was P24,000.00, and he was so appointed by the probate court in its
order of March 6, 1981.4
Thereafter, herein petitioners, claiming to be nephews and nieces of the testator, instituted a
second petition, entitled "In the Matter of the Intestate Estate of Mateo Caballero" and
docketed as Special Proceeding No. 3965-R, before Branch IX of the aforesaid Court of First
Instance of Cebu. On October 18, 1982, herein petitioners had their said petition intestate
proceeding consolidated with Special Proceeding No. 3899-R in Branch II of the Court of First
Instance of Cebu and opposed thereat the probate of the Testator's will and the appointment of
a special administrator for his estate.5
Benoni Cabrera died on February 8, 1982 hence the probate court, now known as Branch XV of
the Regional Trial Court of Cebu, appointed William Cabrera as special administrator on June
21, 1983. Thereafter, on July 20, 1983, it issued an order for the return of the records of Special
Proceeding No. 3965-R to the archives since the testate proceeding for the probate of the will
had to be heard and resolved first. On March 26, 1984 the case was reraffled and eventually
assigned to Branch XII of the Regional Trial Court of Cebu where it remained until the
conclusion of the probate proceedings.6
In the course of the hearing in Special Proceeding No. 3899-R, herein petitioners appeared as
oppositors and objected to the allowance of the testator's will on the ground that on the alleged
date of its execution, the testator was already in the poor state of health such that he could not
have possibly executed the same. Petitioners likewise reiterated the issue as to the genuineness
of the signature of the testator therein.7
On the other hand, one of the attesting witnesses, Cipriano Labuca, and the notary public Atty.
Filoteo Manigos, testified that the testator executed the will in question in their presence while
he was of sound and disposing mind and that, contrary to the assertions of the oppositors,
Mateo Caballero was in good health and was not unduly influenced in any way in the
execution of his will. Labuca also testified that he and the other witnesses attested and signed
the will in the presence of the testator and of each other. The other two attesting witnesses
were not presented in the probate hearing as the had died by then.8
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On April 5, 1988, the probate court rendered a decision declaring the will in question as the
last will and testament of the late Mateo Caballero, on the ratiocination that:
. . . The self-serving testimony of the two witnesses of the oppositors cannot overcome the
positive testimonies of Atty. Filoteo Manigos and Cipriano Labuca who clearly told the Court
that indeed Mateo Caballero executed the Last Will and Testament now marked Exhibit "C" on
December 5, 1978. Moreover, the fact that it was Mateo Caballero who initiated the probate of
his Will during his lifetime when he caused the filing of the original petition now marked
Exhibit "D" clearly underscores the fact that this was indeed his Last Will. At the start, counsel
for the oppositors manifested that he would want the signature of Mateo Caballero in Exhibit
"C" examined by a handwriting expert of the NBI but it would seem that despite their avowal
and intention for the examination of this signature of Mateo Caballero in Exhibit "C", nothing
came out of it because they abandoned the idea and instead presented Aurea Caballero and
Helen Caballero Campo as witnesses for the oppositors.
All told, it is the finding of this Court that Exhibit "C" is the Last Will and Testament of Mateo
Caballero and that it was executed in accordance with all the requisites of the law.9
Undaunted by the said judgment of the probate court, petitioners elevated the case in the
Court of Appeals in CA-G.R. CV No. 19669. They asserted therein that the will in question is
null and void for the reason that its attestation clause is fatally defective since it fails to
specifically state that the instrumental witnesses to the will witnessed the testator signing the
will in their presence and that they also signed the will and all the pages thereof in the
presence of the testator and of one another.
On October 15, 1991, respondent court promulgated its decision 10 affirming that of the trial
court, and ruling that the attestation clause in the last will of Mateo Caballero substantially
complies with Article 805 of the Civil Code, thus:
The question therefore is whether the attestation clause in question may be considered as
having substantialy complied with the requirements of Art. 805 of the Civil Code. What
appears in the attestation clause which the oppositors claim to be defective is "we do certify
that the testament was read by him and the attestator, Mateo Caballero, has published unto us
the foregoing will consisting of THREE PAGES, including the acknowledgment, each page
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numbered correlatively in letters of the upper part of each page, as his Last Will and
Testament, and he has signed the same and every page thereof, on the spaces provided for his
signature and on the left hand margin in the presence of the said testator and in the presence
of each and all of us (emphasis supplied).
To our thinking, this is sufficient compliance and no evidence need be presented to indicate
the meaning that the said will was signed by the testator and by them (the witnesses) in the
presence of all of them and of one another. Or as the language of the law would have it that
the testator signed the will "in the presence of the instrumental witnesses, and that the latter
witnessed and signed the will and all the pages thereof in the presence of the testator and of
one another." If not completely or ideally perfect in accordance with the wordings of Art. 805
but (sic) the phrase as formulated is in substantial compliance with the requirement of the
law." 11
Petitioners moved for the reconsideration of the said ruling of respondent court, but the same
was denied in the latter's resolution of January 14, 1992, 12 hence this appeal now before us.
Petitioners assert that respondent court has ruled upon said issue in a manner not in accord
with the law and settled jurisprudence on the matter and are now questioning once more, on
the same ground as that raised before respondent court, the validity of the attestation clause in
the last will of Mateo Caballero.
We find the present petition to be meritorious, as we shall shortly hereafter, after some
prefatory observations which we feel should be made in aid of the rationale for our resolution
of the controversy.
1. A will has been defined as a species of conveyance whereby a person is permitted, with the
formalities prescribed by law, to control to a certain degree the disposition of his estate after
his death. 13 Under the Civil Code, there are two kinds of wills which a testator may
execute.14 the first kind is the ordinary or attested will, the execution of which is governed by
Articles 804 to 809 of the Code. Article 805 requires that:
Art. 805. Every will, other than a holographic will, must be subscribed at the end thereof by the
testator himself or by the testator's name written by some other person in his presence, and by
his express direction, and attested and subscribed by three or more credible witnesses in the
presence of the testator and of one another.
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The testator or the person requested by him to write his name and the instrumental witnesses
of the will, shall also sign, as aforesaid, each and every page thereof, except the last, on the left
margin, and all the pages shall be numbered correlatively in letters placed on the upper part of
each page.
The attestation should state the number of pages used upon which the will is written, and the
fact that the testator signed the will and every page thereof, or caused some other person to
write his name, under his express direction, in the presence of the instrumental witnesses, and
that the latter witnessed and signed the will and all the pages thereof in the presence of the
testator and of one another.
If the attestation clause is in a language not known to the witness, it shall be interpreted to
them.
In addition, the ordinary will must be acknowledged before a notary public by a testator and
the attesting witness. 15 hence it is likewise known as notarial will. Where the attestator is deaf
or deaf-mute, Article 807 requires that he must personally read the will, if able to do so.
Otherwise, he should designate two persons who would read the will and communicate its
contents to him in a practicable manner. On the other hand, if the testator is blind, the will
should be read to him twice; once, by anyone of the witnesses thereto, and then again, by the
notary public before whom it is acknowledged. 16
The other kind of will is the holographic will, which Article 810 defines as one that is entirely
written, dated, and signed by the testator himself. This kind of will, unlike the ordinary type,
requires no attestation by witnesses. A common requirement in both kinds of will is that they
should be in writing and must have been executed in a language or dialect known to the
testator. 17
However, in the case of an ordinary or attested will, its attestation clause need not be written
in a language or dialect known to the testator since it does not form part of the testamentary
disposition. Furthermore, the language used in the attestation clause likewise need not even be
known to the attesting witnesses. 18 The last paragraph of Article 805 merely requires that, in
such a case, the attestation clause shall be interpreted to said witnesses.
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An attestation clause refers to that part of an ordinary will whereby the attesting witnesses
certify that the instrument has been executed before them and to the manner of the execution
the same. 19 It is a separate memorandum or record of the facts surrounding the conduct of
execution and once signed by the witnesses, it gives affirmation to the fact that compliance
with the essential formalities required by law has been observed. 20 It is made for the purpose
of preserving in a permanent form a record of the facts that attended the execution of a
particular will, so that in case of failure of the memory of the attesting witnesses, or other
casualty, such facts may still be proved. 21
Under the third paragraph of Article 805, such a clause, the complete lack of which would
result in the invalidity of the will, 22 should state (1) the number of the pages used upon which
the will is written; (2) that the testator signed, or expressly caused another to sign, the will and
every page thereof in the presence of the attesting witnesses; and (3) that the attesting
witnesses witnessed the signing by the testator of the will and all its pages, and that said
witnesses also signed the will and every page thereof in the presence of the testator and of one
another.
The purpose of the law in requiring the clause to state the number of pages on which the will
is written is to safeguard against possible interpolation or omission of one or some of its pages
and to prevent any increase or decrease in the pages;23 whereas the subscription of the
signature of the testator and the attesting witnesses is made for the purpose of authentication
and identification, and thus indicates that the will is the very same instrument executed by the
testator and attested to by the witnesses.24
Further, by attesting and subscribing to the will, the witnesses thereby declare the due
execution of the will as embodied in the attestation clause.25 The attestation clause, therefore,
provide strong legal guaranties for the due execution of a will and to insure the authenticity
thereof.26 As it appertains only to the witnesses and not to the testator, it need be signed only
by them.27 Where it is left unsigned, it would result in the invalidation of the will as it would
be possible and easy to add the clause on a subsequent occasion in the absence of the testator
and its witnesses.28
In its report, the Code Commission commented on the reasons of the law for requiring the
formalities to be followed in the execution of wills, in the following manner:
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The underlying and fundamental objectives permeating the provisions on the law on wills in
this Project consists in the liberalization of the manner of their execution with the end in view
of giving the testator more freedom in expressing his last wishes, but with sufficient
safeguards and restrictions to prevent the commission of fraud and the exercise of undue and
improper pressure and influence upon the testator.
This objective is in accord with the modern tendency with respect to the formalities in the
execution of wills. . . .29
2. An examination of the last will and testament of Mateo Caballero shows that it is comprised
of three sheets all of which have been numbered correlatively, with the left margin of each
page thereof bearing the respective signatures of the testator and the three attesting witnesses.
The part of the will containing the testamentary dispositions is expressed in the Cebuano-
Visayan dialect and is signed at the foot thereof by the testator. The attestation clause in
question, on the other hand, is recited in the English language and is likewise signed at the end
thereof by the three attesting witnesses hereto.30 Since it is the proverbial bone of contention,
we reproduce it again for facility of reference:
We, the undersigned attesting Witnesses, whose Residences and postal addresses appear on
the Opposite of our respective names, we do hereby certify that the Testament was read by
him and the testator, MATEO CABALLERO; has published unto us the foregoing Will
consisting of THREE PAGES, including the Acknowledgment, each page numbered
correlatively in the letters on the upper part of each page, as his Last Will and Testament and
he has the same and every page thereof, on the spaces provided for his signature and on the
left hand margin, in the presence of the said testator and in the presence of each and all of us.
It will be noted that Article 805 requires that the witness should both attest and subscribe to
the will in the presence of the testator and of one another. "Attestation" and "subscription"
differ in meaning. Attestation is the act of senses, while subscription is the act of the hand. The
former is mental, the latter mechanical, and to attest a will is to know that it was published as
such, and to certify the facts required to constitute an actual and legal publication; but to
subscribe a paper published as a will is only to write on the same paper the names of the
witnesses, for the sole purpose of identification.31
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In Taboada vs. Rizal,32 we clarified that attestation consists in witnessing the testator's
execution of the will in order to see and take note mentally that those things are done which
the statute requires for the execution of a will and that the signature of the testator exists as a
fact. On the other hand, subscription is the signing of the witnesses' names upon the same
paper for the purpose of identification of such paper as the will which was executed by the
testator. As it involves a mental act, there would be no means, therefore, of ascertaining by a
physical examination of the will whether the witnesses had indeed signed in the presence of
the testator and of each other unless this is substantially expressed in the attestation.
It is contended by petitioners that the aforequoted attestation clause, in contravention of the

express requirements of the third paragraph of Article 805 of the Civil Code for attestation
clauses, fails to specifically state the fact that the attesting witnesses the testator sign the will
and all its pages in their presence and that they, the witnesses, likewise signed the will and
every page thereof in the presence of the testator and of each other. We agree.
What is fairly apparent upon a careful reading of the attestation clause herein assailed is the
fact that while it recites that the testator indeed signed the will and all its pages in the presence
of the three attesting witnesses and states as well the number of pages that were used, the
same does not expressly state therein the circumstance that said witnesses subscribed their
respective signatures to the will in the presence of the testator and of each other.
The phrase "and he has signed the same and every page thereof, on the spaces provided for his
signature and on the left hand margin," obviously refers to the testator and not the
instrumental witnesses as it is immediately preceded by the words "as his Last Will and
Testament." On the other hand, although the words "in the presence of the testator and in the
presence of each and all of us" may, at first blush, appear to likewise signify and refer to the
witnesses, it must, however, be interpreted as referring only to the testator signing in the
presence of the witnesses since said phrase immediately follows the words "he has signed the
same and every page thereof, on the spaces provided for his signature and on the left hand
margin." What is then clearly lacking, in the final logical analysis , is the statement that the
witnesses signed the will and every page thereof in the presence of the testator and of one
another.
It is our considered view that the absence of that statement required by law is a fatal defect or
imperfection which must necessarily result in the disallowance of the will that is here sought
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to be admitted to probate. Petitioners are correct in pointing out that the aforestated defect in
the attestation clause obviously cannot be characterized as merely involving the form of the
will or the language used therein which would warrant the application of the substantial
compliance rule, as contemplated in the pertinent provision thereon in the Civil Code, to wit:
Art. 809. In the absence of bad faith, forgery, or fraud, or undue and improper pressure and
influence, defects and imperfections in the form of attestation or in the language used therein
shall not render the will invalid if it is not proved that the will was in fact executed and
attested in substantial compliance with all the requirements of article 805" (Emphasis
supplied.)
While it may be true that the attestation clause is indeed subscribed at the end thereof and at
the left margin of each page by the three attesting witnesses, it certainly cannot be conclusively
inferred therefrom that the said witness affixed their respective signatures in the presence of
the testator and of each other since, as petitioners correctly observed, the presence of said
signatures only establishes the fact that it was indeed signed, but it does not prove that the
attesting witnesses did subscribe to the will in the presence of the testator and of each other.
The execution of a will is supposed to be one act so that where the testator and the witnesses
sign on various days or occasions and in various combinations, the will cannot be stamped
with the imprimatur of effectivity.33
We believe that the further comment of former Justice J.B.L. Reyes34 regarding Article 809,
wherein he urged caution in the application of the substantial compliance rule therein, is
correct and should be applied in the case under consideration, as well as to future cases with
similar questions:
. . . The rule must be limited to disregarding those defects that can be supplied by an
examination of the will itself: whether all the pages are consecutively numbered; whether the
signatures appear in each and every page; whether the subscribing witnesses are three or the
will was notarized. All theses are facts that the will itself can reveal, and defects or even
omissions concerning them in the attestation clause can be safely disregarded. But the total
number of pages, and whether all persons required to sign did so in the presence of each other
must substantially appear in the attestation clause, being the only check against perjury in the
probate proceedings. (Emphasis ours.)
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3. We stress once more that under Article 809, the defects and imperfections must only be with
respect to the form of the attestation or the language employed therein. Such defects or
imperfections would not render a will invalid should it be proved that the will was really
executed and attested in compliance with Article 805. In this regard, however, the manner of
proving the due execution and attestation has been held to be limited to merely an
examination of the will itself without resorting to evidence aliunde, whether oral or written.
The foregoing considerations do not apply where the attestation clause totally omits the fact
that the attesting witnesses signed each and every page of the will in the presence of the
testator and of each other.35 In such a situation, the defect is not only in the form or language
of the attestation clause but the total absence of a specific element required by Article 805 to be
specifically stated in the attestation clause of a will. That is precisely the defect complained of
in the present case since there is no plausible way by which we can read into the questioned
attestation clause statement, or an implication thereof, that the attesting witness did actually
bear witness to the signing by the testator of the will and all of its pages and that said
instrumental witnesses also signed the will and every page thereof in the presence of the
testator and of one another.
Furthermore, the rule on substantial compliance in Article 809 cannot be revoked or relied on
by respondents since it presupposes that the defects in the attestation clause can be cured or
supplied by the text of the will or a consideration of matters apparent therefrom which would
provide the data not expressed in the attestation clause or from which it may necessarily be
gleaned or clearly inferred that the acts not stated in the omitted textual requirements were
actually complied within the execution of the will. In other words, defects must be remedied
by intrinsic evidence supplied by the will itself.
In the case at bar, contrarily, proof of the acts required to have been performed by the attesting
witnesses can be supplied by only extrinsic evidence thereof, since an overall appreciation of
the contents of the will yields no basis whatsoever from with such facts may be plausibly
deduced. What private respondent insists on are the testimonies of his witnesses alleging that
they saw the compliance with such requirements by the instrumental witnesses, oblivious of
the fact that he is thereby resorting to extrinsic evidence to prove the same and would
accordingly be doing by the indirection what in law he cannot do directly.
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4. Prior to the advent of the Civil Code on August 30, 1950, there was a divergence of views as
to which manner of interpretation should be followed in resolving issues centering on
compliance with the legal formalities required in the execution of wills. The formal
requirements were at that time embodied primarily in Section 618 of Act No. 190, the Code of
Civil Procedure. Said section was later amended by Act No. 2645, but the provisions
respecting said formalities found in Act. No. 190 and the amendment thereto were practically
reproduced and adopted in the Civil Code.
One view advance the liberal or substantial compliance rule. This was first laid down in the
case of Abangan vs. Abangan,36 where it was held that the object of the solemnities
surrounding the execution of wills is to close the door against bad faith and fraud, to avoid
substitution of wills and testaments and to guarantee their truth and authenticity. Therefore,
the laws on this subject should be interpreted in such a way as to attain these primordial ends.
Nonetheless, it was also emphasized that one must not lose sight of the fact that it is not the
object of the law to restrain and curtail the exercise of the right to make a will, hence when an
interpretation already given assures such ends, any other interpretation whatsoever that adds
nothing but demands more requisites entirely unnecessary, useless and frustrative of the
testator's last will, must be disregarded. The subsequent cases of Avera vs. Garcia,37 Aldaba
vs. Roque,38 Unson vs. Abella,39 Pecson vs. Coronel,40 Fernandez vs. Vergel de Dios, et al.,41
and Nayve vs. Mojal, et al.42 all adhered to this position.
The other view which advocated the rule that statutes which prescribe the formalities that
should be observed in the execution of wills are mandatory in nature and are to be strictly
construed was followed in the subsequent cases of In the Matter of the Estate of Saguinsin,43
In re Will of Andrada,44 Uy Coque vs. Sioca,45 In re Estate of Neumark, 46 and Sano vs.
Quintana.47
Gumban vs. Gorecho, et al.,48 provided the Court with the occasion to clarify the seemingly
conflicting decisions in the aforementioned cases. In said case of Gumban, the attestation
clause had failed to state that the witnesses signed the will and each and every page thereof on
the left margin in the presence of the testator. The will in question was disallowed, with these
reasons therefor:
In support of their argument on the assignment of error above-mentioned, appellants rely on a

series of cases of this court beginning with (I)n the Matter of the (E)state of Saguinsin ([1920],
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41 Phil., 875), continuing with In re Will of Andrada [1921], 42 Phil., 180), Uy Coque vs. Navas
L. Sioca [1922], 43 Phil., 405), and In re Estate of Neumark ([1923], 46 Phil., 841), and ending
with Sano vs. Quintana ([1925], 48 Phil., 506). Appellee counters with the citation of a series of
cases beginning with Abangan vs. Abangan ([1919], 40 Phil., 476), continuing through Aldaba
vs. Roque ([1922], 43 Phil., 378), and Fernandez vs. Vergel de Dios ([1924], 46 Phil., 922), and
culminating in Nayve vs. Mojal and Aguilar ([1924], 47 Phil., 152). In its last analysis, our task
is to contrast and, if possible, conciliate the last two decisions cited by opposing counsel,
namely, those of Sano vs. Quintana, supra, and Nayve vs. Mojal and Aguilar, supra.
In the case of Sano vs. Quintana, supra, it was decided that an attestation clause which does
not recite that the witnesses signed the will and each and every page thereof on the left margin
in the presence of the testator is defective, and such a defect annuls the will. The case of Uy
Coque vs. Sioca, supra, was cited, but the case of Nayve vs. Mojal and Aguilar, supra, was not
mentioned. In contrast, is the decision in Nayve vs. Mojal and Aguilar, supra, wherein it was
held that the attestation clause must estate the fact that the testator and the witnesses
reciprocally saw the signing of the will, for such an act cannot be proved by the mere
exhibition of the will, if it is not stated therein. It was also held that the fact that the testator
and the witnesses signed each and every page of the will can be proved also by the mere
examination of the signatures appearing on the document itself, and the omission to state such
evident facts does not invalidate the will.
It is a habit of courts to reaffirm or distinguish previous cases; seldom do they admit

inconsistency in doctrine. Yet here, unless aided impossible to reconcile the Mojal and
Quintana decisions. They are fundamentally at variance. If we rely on one, we affirm. If we
rely on the other, we reverse.
In resolving this puzzling question of authority, three outstanding points may be mentioned.
In the first place, the Mojal, decision was concurred in by only four members of the court, less
than a majority, with two strong dissenting opinions; the Quintana decision was concurred in
by seven members of the court, a clear majority, with one formal dissent. In the second place,
the Mojal decision was promulgated in December, 1924, while the Quintana decision was
promulgated in December, 1925; the Quintana decision was thus subsequent in point of time.
And in the third place, the Quintana decision is believed more nearly to conform to the
applicable provisions of the law.
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The right to dispose of property by will is governed entirely by statute. The law of the case is
here found in section 61 of the Code of Civil Procedure as amended by Act No. 2645, and in
section 634 of the same Code, as unamended. It is in part provided in section 61, as amended
that "No will . . . shall be valid . . . unless . . .." It is further provided in the same section that
"The attestation shall state the number of sheets or pages used, upon which the will is written,
and the fact that the testator signed the will and every page thereof, or caused some other
person to write his name, under his express direction, in the presence of three witnesses, and
the latter witnessed and signed the will and all pages thereof in the presence of the testator
and of each other." Codal section 634 provides that "The will shall be disallowed in either of
the following case: 1. If not executed and attested as in this Act provided." The law not alone
carefully makes use of the imperative, but cautiously goes further and makes use of the
negative, to enforce legislative intention. It is not within the province of the courts to disregard
the legislative purpose so emphatically and clearly expressed.
We adopt and reaffirm the decision in the case of Sano vs. Quintana, supra, and, to the extent
necessary, modify the decision in the case of Nayve vs. Mojal and Aguilar, supra. (Emphases
in the original text).
But after the Gumban clarificatory pronouncement, there were decisions of the Court that once
more appeared to revive the seeming diversity of views that was earlier threshed out therein.
The cases of Quinto vs. Morata,49 Rodriguez vs. Alcala,50 Enchevarria vs. Sarmiento,51 and
Testate Estate of Toray52 went the way of the ruling as restated in Gumban. But De Gala vs.
Gonzales, et al.,53 Rey vs. Cartagena,54 De Ticson vs. De Gorostiza,55 Sebastian vs.
Panganiban,56 Rodriguez vs. Yap,57 Grey vs. Fabia,58 Leynez vs. Leynez,59 Martir vs.
Martir,60 Alcala vs. De Villa,61 Sabado vs.
Fernandez,62 Mendoza vs. Pilapil, 63 and Lopez vs. Liboro,64 veered away from the strict
interpretation rule and established a trend toward an application of the liberal view.
The Code Commission, cognizant of such a conflicting welter of views and of the undeniable
inclination towards a liberal construction, recommended the codification of the substantial
compliance rule, as it believed this rule to be in accord with the modern tendency to give a
liberal approach to the interpretation of wills. Said rule thus became what is now Article 809 of
the Civil Code, with this explanation of the Code Commission:
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The present law provides for only one form of executing a will, and that is, in accordance with
the formalities prescribed by Section 618 of the Code of Civil Procedure as amended by Act
No. 2645. The Supreme Court of the Philippines had previously upheld the strict compliance
with the legal formalities and had even said that the provisions of Section 618 of the Code of
Civil Procedure, as amended regarding the contents of the attestation clause were mandatory,
and non-compliance therewith invalidated the will (Uy Coque vs. Sioca, 43 Phil. 405). These
decisions necessarily restrained the freedom of the testator in disposing of his property.
However, in recent years the Supreme Court changed its attitude and has become more liberal
in the interpretation of the formalities in the execution of wills. This liberal view is enunciated
in the cases of Rodriguez vs. Yap, G.R. No. 45924, May 18, 1939; Leynez vs. Leynez, G.R. No.
46097, October 18, 1939; Martir vs. Martir, G.R. No. 46995, June 21, 1940; and Alcala vs. Villa,
G.R. No. 47351, April 18, 1941.
In the above mentioned decisions of our Supreme Court, it has practically gone back to the
original provisions of Section 618 of the Code of Civil Procedure before its amendment by Act
No. 2645 in the year 1916. To turn this attitude into a legislative declaration and to attain the
main objective of the proposed Code in the liberalization of the manner of executing wills,
article 829 of the Project is recommended, which reads:
"Art. 829. In the absence of bad faith, forgery, or fraud, or undue and improper pressure and
influence, defects and imperfections in the form of attestation or in the language used therein
shall not render the will invalid if it is proved that the will was in fact executed and attested in
substantial compliance with all the requirements of article 829."65
The so-called liberal rule, the Court said in Gil vs. Murciano,66 "does not offer any puzzle or
difficulty, nor does it open the door to serious consequences. The later decisions do tell us
when and where to stop; they draw the dividing line with precision. They do not allow
evidence aliunde to fill a void in any part of the document or supply missing details that
should appear in the will itself. They only permit a probe into the will, an exploration into its
confines, to ascertain its meaning or to determine the existence or absence of the requisite
formalities of law. This clear, sharp limitation eliminates uncertainty and ought to banish any
fear of dire results."
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nd
It may thus be stated that the rule, as it now stands, is that omissions which can be supplied by
an examination of the will itself, without the need of resorting to extrinsic evidence, will not be
fatal and, correspondingly, would not obstruct the allowance to probate of the will being
assailed. However, those omissions which cannot be supplied except by evidence aliunde
would result in the invalidation of the attestation clause and ultimately, of the will itself.67
WHEREFORE, the petition is hereby GRANTED and the impugned decision of respondent
court is hereby REVERSED and SET ASIDE. The court a quo is accordingly directed to
forthwith DISMISS its Special Proceeding No. 3899-R (Petition for the Probate of the Last Will
and Testament of Mateo Caballero) and to REVIVE Special Proceeding No. 3965-R (In the
matter of the Intestate Estate of Mateo Caballero) as an active case and thereafter duly proceed
with the settlement of the estate of the said decedent.
SO ORDERED.
Narvasa, C.J., Padilla, Regalado, and Nocon, JJ., concur.
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2. Gan vs Yap (G.R. No. L-12190, August 30, 1958)
TESTATE ESTATE OF FELICIDAD ESGUERRA ALTO-YAP deceased. FAUSTO E. GAN,

Petitioner-Appellant, v. ILDEFONSO YAP, Oppositor-Appellee.
SYLLABUS
1. HOLOGRAPHIC WILLS; PROBATE OF; EXECUTION AND CONTENTS OF WILL, HOW
PROVED. — 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.
DECISION
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, Bulacan, and in the City of Manila.
On March 17, 1952, Fausto E. Gan initiated these proceedings in the Manila court of first
instance with a petition for the probate of a holographic will allegedly executed by the
deceased, substantially in these words:jgc:chanrobles.com.ph
"Nobyembre 5, 1951
Ako, si Felicidad E. Alto-Yap, may asawa, at ganap na pagiisip, ay nagsasalaysay na ang aking
kayamanan sa bayan ng Pulilan, Bulacan ay aking ipinamamana sa aking mga kamaganakang
sumusunod:
Vicente Esguerra, Sr. 5 Bahagi

Fausto E. Gan 2 Bahagi
Rosario E. Gan 2 Bahagi
Filomena Alto 1 Bahagi
Beatriz Alto 1 Bahagi
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nd
‘At ang aking lahat ng ibang kayamanan sa Maynila at iba pang lugar ay aking ipinamamana
sa aking asawang si Ildefonso D. Yap sa kondisyong siya’y magpapagawa ng isang Health
Center na nagkakahalaga ng di kukulangin sa halagang P60,000.00 sa bayan ng Pulilan,
Bulacan, na nakaukit ang aking pañgalang Felicidad Esguerra-Alto. At kung ito ay may
kakulañgan man ay bahala na ang aking asawa ang magpuno upang matupad ang aking
kagustuhan.’
(Lagda) Felicidad E. Alto-Yap"
Opposing the petition, her surviving husband Ildefonso Yap asserted that the deceased had
not left any will, nor executed any testament during her lifetime.
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:chanrob1es virtual 1aw
library
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.
17
nd
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 owned by the Yap spouses. Physician’s 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
18
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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 permited 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."cralaw virtua1aw library
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.
19
nd
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 authenticity (Abangan v.
Abangan, 40 Phil., 476) and to avoid that those who have no right to succeed the testator
would succeed him and be benefited with the probate of same. (Mendoza v. Pilapil, 40 off.
Gaz., 1855). However, formal imperfections may be brushed aside when authenticity of the
instrument is duly proved. (Rodriguez v. Yap, 40 Off. Gaz. Ist Supp. No. 3 p. 194.) .
Authenticity and due execution is the dominant requirement 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 v. Delfinado 34 Phil., 291; Tolentino v. 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
of 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."cralaw virtua1aw library
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 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.
20
nd
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 authenticity 3 — 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.
21
nd
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
22
nd
cumplida de que cuando se otorgaron se llenaron 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 su adveracion y protocolizacion; y como
consecuencia ineludible de ello, forzoso es affirmar que el de autos carece de validez y aficacia,
por no estar firmado por el testador, cualquiera que sea la causa de la falta 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 Vl 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
23
nd
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 lend 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 admissible 9 only one man
could engineer the whole 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
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nd
Castan, Sanchez Roman and Valverde and other well-known Spanish Commentators and
teachers of Civil Law.
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
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.
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nd
3. Rodelas vs Aranza (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.
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.
26
nd
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.
27
nd
On July 7, 1980, appellees moved to forward the case to this Court on the ground that the
appeal does not involve question of fact and alleged that the trial court committed the
following assigned errors:
I. THE LOWER COURT ERRED IN HOLDING THAT A LOST HOLOGRAPHIC WILL MAY
NOT BE PROVED BY A COPY THEREOF;
II. THE LOWER COURT ERRED IN HOLDING THAT THE DECEDENT HAS DISCARDED
BEFORE HIS DEATH THE MISSING HOLOGRAPHIC WILL;
III. THE LOWER COURT ERRED IN DISMISSING APPELLANT'S WILL.
The only question here is whether a holographic will which was lost or cannot be found can be
proved by means of a photostatic copy. Pursuant to Article 811 of the Civil Code, probate of
holographic wills is the allowance of the will by the court after its due execution has been
proved. The probate may be uncontested or not. If uncontested, at least one Identifying
witness is required and, if no witness is available, experts may be resorted to. If contested, at
least three 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.
28
nd
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.
29
nd
4. Nuguid vs Nuguid (G.R. No. L-23445, June 23, 1966)
REMEDIOS NUGUID, petitioner and appellant, vs. FELIX NUGUID and PAZ SALONGA
NUGUID, oppositors and appellees.
SANCHEZ, J.:
Rosario Nuguid, a resident of Quezon City, died on December 30, 1962, single, without
descendants, legitimate or illegitimate. Surviving her were her legitimate parents, Felix
Nuguid and Paz Salonga Nuguid, and six (6) brothers and sisters, namely: Alfredo, Federico,
Remedios, Conrado, Lourdes and Alberto, all surnamed Nuguid.
On May 18, 1963, petitioner Remedios Nuguid filed in the Court of First Instance of Rizal a
holographic will allegedly executed by Rosario Nuguid on November 17, 1951, some 11 years
before her demise. Petitioner prayed that said will be admitted to probate and that letters of
administration with the will annexed be issued to her.
On June 25, 1963, Felix Nuguid and Paz Salonga Nuguid, concededly the legitimate father and
mother of the deceased Rosario Nuguid, entered their opposition to the probate of her will.
Ground therefor, inter alia, is that by the institution of petitioner Remedios Nuguid as
universal heir of the deceased, oppositors — who are compulsory heirs of the deceased in the
direct ascending line — were illegally preterited and that in consequence the institution is
void.
On August 29, 1963, before a hearing was had on the petition for probate and objection thereto,
oppositors moved to dismiss on the ground of absolute preterition.
On September 6, 1963, petitioner registered her opposition to the motion to

dismiss.1äwphï1.ñët
The court's order of November 8, 1963, held that "the will in question is a complete nullity and
will perforce create intestacy of the estate of the deceased Rosario Nuguid" and dismissed the
petition without costs.
A motion to reconsider having been thwarted below, petitioner came to this Court on appeal.
30
nd
1. Right at the outset, a procedural aspect has engaged our attention. The case is for the
probate of a will. The court's area of inquiry is limited — to an examination of, and resolution
on, the extrinsic validity of the will. The due execution thereof, the testatrix's testamentary
capacity, and the compliance with the requisites or solemnities by law prescribed, are the
questions solely to be presented, and to be acted upon, by the court. Said court at this stage of
the proceedings — is not called upon to rule on the intrinsic validity or efficacy of the
provisions of the will, the legality of any devise or legacy therein.1
A peculiar situation is here thrust upon us. The parties shunted aside the question of whether
or not the will should be allowed probate. For them, the meat of the case is the intrinsic
validity of the will. Normally, this comes only after the court has declared that the will has
been duly authenticated.2 But petitioner and oppositors, in the court below and here on
appeal, travelled on the issue of law, to wit: Is the will intrinsically a nullity?
We pause to reflect. If the case were to be remanded for probate of the will, nothing will be
gained. On the contrary, this litigation will be protracted. And for aught that appears in the
record, in the event of probate or if the court rejects the will, probability exists that the case
will come up once again before us on the same issue of the intrinsic validity or nullity of the
will. Result: waste of time, effort, expense, plus added anxiety. These are the practical
considerations that induce us to a belief that we might as well meet head-on the issue of the
validity of the provisions of the will in question.3 After all, there exists a justiciable
controversy crying for solution.
2. Petitioner's sole assignment of error challenges the correctness of the conclusion below that
the will is a complete nullity. This exacts from us a study of the disputed will and the
applicable statute.
Reproduced hereunder is the will:
Nov. 17, 1951
I, ROSARIO NUGUID, being of sound and disposing mind and memory, having amassed a
certain amount of property, do hereby give, devise, and bequeath all of the property which I
may have when I die to my beloved sister Remedios Nuguid, age 34, residing with me at 38-B
31
nd
Iriga, Q.C. In witness whereof, I have signed my name this seventh day of November, nineteen
hundred and fifty-one.
(Sgd.) Illegible
T/ ROSARIO NUGUID
The statute we are called upon to apply in Article 854 of the Civil Code which, in part,
provides:
ART. 854. The preterition or omission of one, some, or all of the compulsory heirs in the direct
line, whether living at the time of the execution of the will or born after the death of the
testator, shall annul the institution of heir; but the devises and legacies shall be valid insofar as
they are not inofficious. ...
Except for inconsequential variation in terms, the foregoing is a reproduction of Article 814 of
the Civil Code of Spain of 1889, which is similarly herein copied, thus —
Art. 814. The preterition of one or all of the forced heirs in the direct line, whether living at the
time of the execution of the will or born after the death of the testator, shall void the institution
of heir; but the legacies and betterments4 shall be valid, in so far as they are not inofficious. ...
A comprehensive understanding of the term preterition employed in the law becomes a

necessity. On this point Manresa comments:
La pretericion consiste en omitar al heredero en el testamento. O no se le nombra siquiera o

aun nombrandole como padre, hijo, etc., no se le instituya heredero ni se le deshereda
expresamente ni se le asigna parte alguna de los bienes, resultando privado de un modo tacito
de su derecho a legitima.
Para que exista pretericion, con arreglo al articulo 814, basta que en el testamento omita el
testador a uno cualquiera de aquellos a quienes por su muerte corresponda la herencia forzosa.
Se necesita, pues, a) Que la omision se refiera a un heredero forzoso. b) Que la omision sea
completa; que el heredero forzoso nada reciba en el testamento.
32
nd
It may now appear trite bat nonetheless helpful in giving us a clear perspective of the problem
before us, to have on hand a clear-cut definition of the word annul:
To "annul" means to abrogate, to make void ... In re Morrow's Estate, 54 A. 342, 343, 204 Pa.
484.6
The word "annul" as used in statute requiring court to annul alimony provisions of divorce
decree upon wife's remarriage means to reduce to nothing; to annihilate; obliterate; blot out; to
make void or of no effect; to nullify; to abolish. N.J.S.A. 2:50 — 38 (now N.J.S. 2A:34-35).
Madden vs. Madden, 40 A. 2d 611, 614, 136 N..J Eq. 132.7
ANNUL. To reduce to nothing; annihilate; obliterate; to make void or of no effect; to nullify; to

abolish; to do away with. Ex parte Mitchell, 123 W. Va. 283, 14 S.E. 2d. 771, 774.8
And now, back to the facts and the law. The deceased Rosario Nuguid left no descendants,
legitimate or illegitimate. But she left forced heirs in the direct ascending line her parents, now
oppositors Felix Nuguid and Paz Salonga Nuguid. And, the will completely omits both of
them: They thus received nothing by the testament; tacitly, they were deprived of their
legitime; neither were they expressly disinherited. This is a clear case of preterition. Such
preterition in the words of Manresa "anulara siempre la institucion de heredero, dando
caracter absoluto a este ordenamiento referring to the mandate of Article 814, now 854 of the
Civil Code.9 The one-sentence will here institutes petitioner as the sole, universal heir —
nothing more. No specific legacies or bequests are therein provided for. It is in this posture
that we say that the nullity is complete. Perforce, Rosario Nuguid died intestate. Says Manresa:
En cuanto a la institucion de heredero, se anula. Lo que se anula deja de existir, en todo o en

parte? No se añade limitacion alguna, como en el articulo 851, en el que se expresa que se
anulara la institucion de heredero en cuanto prejudique a la legitima del deseheredado Debe,
pues, entenderse que la anulacion es completa o total, y que este articulo como especial en el
caso que le motiva rige con preferencia al 817. 10
The same view is expressed by Sanchez Roman: —
La consecuencia de la anulacion o nulidad de la institucion de heredero por pretericion de

uno, varios o todos los forzosos en linea recta, es la apertura de la sucesion intestada total o
33
nd
parcial. Sera total, cuando el testador que comete la pretericion, hubiese dispuesto de todos los
bienes por titulo universal de herencia en favor de los herederos instituidos, cuya institucion
se anula, porque asi lo exige la generalidad del precepto legal del art. 814, al determinar, como
efecto de la pretericion, el de que "anulara la institucion de heredero." ... 11
Really, as we analyze the word annul employed in the statute, there is no escaping the
conclusion that the universal institution of petitioner to the entire inheritance results in totally
abrogating the will. Because, the nullification of such institution of universal heir — without
any other testamentary disposition in the will — amounts to a declaration that nothing at all
was written. Carefully worded and in clear terms, Article 854 offers no leeway for inferential
interpretation. Giving it an expansive meaning will tear up by the roots the fabric of the
statute. On this point, Sanchez Roman cites the "Memoria annual del Tribunal Supreme,
correspondiente a 1908", which in our opinion expresses the rule of interpretation, viz:
... El art. 814, que preceptua en tales casos de pretericion la nulidad de la institucion de
heredero, no consiente interpretacion alguna favorable a la persona instituida en el sentido
antes expuesto aun cuando parezca, y en algun caso pudiera ser, mas o menos equitativa,
porque una nulidad no significa en Derecho sino la suposicion de que el hecho o el acto no se
ha realizado, debiendo por lo tanto procederse sobre tal base o supuesto, y consiguientemente,
en un testamento donde falte la institucion, es obligado llamar a los herederos forzosos en todo
caso, como habria que llamar a los de otra clase, cuando el testador no hubiese distribudo
todos sus bienes en legados, siendo tanto mas obligada esta consecuencia legal cuanto que, en
materia de testamentos, sabido es, segun tiene declarado la jurisprudencia, con repeticion, que
no basta que sea conocida la voluntad de quien testa si esta voluntad no aparece en la forma y
en las condiciones que la ley ha exigido para que sea valido y eficaz, por lo que constituiria
una interpretacion arbitraria, dentro del derecho positivo, reputar como legatario a un
heredero cuya institucion fuese anulada con pretexto de que esto se acomodaba mejor a la
voluntad del testador, pues aun cuando asi fuese, sera esto razon para modificar la ley, pero
no autoriza a una interpretacion contraria a sus terminos y a los principios que informan la
testamentifaccion, pues no porque parezca mejor una cosa en el terreno del Derecho
constituyente, hay razon para convereste juicio en regla de interpretacion, desvirtuando y
anulando por este procedimiento lo que el legislador quiere establecer. 12
3. We should not be led astray by the statement in Article 854 that, annullment
notwithstanding, "the devises and legacies shall be valid insofar as they are not inofficious".
34
nd
Legacies and devises merit consideration only when they are so expressly given as such in a
will. Nothing in Article 854 suggests that the mere institution of a universal heir in a will —
void because of preterition — would give the heir so instituted a share in the inheritance. As to
him, the will is inexistent. There must be, in addition to such institution, a testamentary
disposition granting him bequests or legacies apart and separate from the nullified institution
of heir. Sanchez Roman, speaking of the two component parts of Article 814, now 854, states
that preterition annuls the institution of the heir "totalmente por la pretericion"; but added (in
reference to legacies and bequests) "pero subsistiendo ... todas aquellas otras disposiciones que
no se refieren a la institucion de heredero ... . 13 As Manresa puts it, annulment throws open to
intestate succession the entire inheritance including "la porcion libre (que) no hubiese
dispuesto en virtud de legado, mejora o donacion. 14
As aforesaid, there is no other provision in the will before us except the institution of petitioner
as universal heir. That institution, by itself, is null and void. And, intestate succession ensues.
4. Petitioner's mainstay is that the present is "a case of ineffective disinheritance rather than
one of preterition". 15 From this, petitioner draws the conclusion that Article 854 "does not
apply to the case at bar". This argument fails to appreciate the distinction between pretention
and disinheritance.
Preterition "consists in the omission in the testator's will of the forced heirs or anyone of them,
either because they are not mentioned therein, or, though mentioned, they are neither
instituted as heirs nor are expressly disinherited." 16 Disinheritance, in turn, "is a testamentary
disposition depriving any compulsory heir of his share in the legitime for a cause authorized
by law. " 17 In Manresa's own words: "La privacion expresa de la legitima constituye la
desheredacion. La privacion tacita de la misma se denomina pretericion." 18 Sanchez Roman
emphasizes the distinction by stating that disinheritance "es siempre voluntaria"; preterition,
upon the other hand, is presumed to be "involuntaria". 19 Express as disinheritance should be,
the same must be supported by a legal cause specified in the will itself. 20
The will here does not explicitly disinherit the testatrix's parents, the forced heirs. It simply
omits their names altogether. Said will rather than be labeled ineffective disinheritance is
clearly one in which the said forced heirs suffer from preterition.
35
nd
On top of this is the fact that the effects flowing from preterition are totally different from
those of disinheritance. Preterition under Article 854 of the Civil Code, we repeat, "shall annul
the institution of heir". This annulment is in toto, unless in the will there are, in addition,
testamentary dispositions in the form of devises or legacies. In ineffective disinheritance under
Article 918 of the same Code, such disinheritance shall also "annul the institution of heirs", put
only "insofar as it may prejudice the person disinherited", which last phrase was omitted in the
case of preterition. 21 Better stated yet, in disinheritance the nullity is limited to that portion of
the estate of which the disinherited heirs have been illegally deprived. Manresa's expressive
language, in commenting on the rights of the preterited heirs in the case of preterition on the
one hand and legal disinheritance on the other, runs thus: "Preteridos, adquiren el derecho a
todo; desheredados, solo les corresponde un tercio o dos tercios, 22 el caso. 23
5. Petitioner insists that the compulsory heirs ineffectively disinherited are entitled to receive
their legitimes, but that the institution of heir "is not invalidated," although the inheritance of
the heir so instituted is reduced to the extent of said legitimes. 24
This is best answered by a reference to the opinion of Mr. Chief Justice Moran in the Neri case
heretofore cited, viz:
But the theory is advanced that the bequest made by universal title in favor of the children by
the second marriage should be treated as legado and mejora and, accordingly, it must not be
entirely annulled but merely reduced. This theory, if adopted, will result in a complete
abrogation of Articles 814 and 851 of the Civil Code. If every case of institution of heirs may be
made to fall into the concept of legacies and betterments reducing the bequest accordingly,
then the provisions of Articles 814 and 851 regarding total or partial nullity of the institution,
would. be absolutely meaningless and will never have any application at all. And the
remaining provisions contained in said article concerning the reduction of inofficious legacies
or betterments would be a surplusage because they would be absorbed by Article 817. Thus,
instead of construing, we would be destroying integral provisions of the Civil Code.
The destructive effect of the theory thus advanced is due mainly to a failure to distinguish
institution of heirs from legacies and betterments, and a general from a special provision. With
reference to article 814, which is the only provision material to the disposition of this case, it
must be observed that the institution of heirs is therein dealt with as a thing separate and
distinct from legacies or betterments. And they are separate and distinct not only because they
36
nd
are distinctly and separately treated in said article but because they are in themselves different.
Institution of heirs is a bequest by universal title of property that is undetermined. Legacy
refers to specific property bequeathed by a particular or special title. ... But again an institution
of heirs cannot be taken as a legacy. 25
The disputed order, we observe, declares the will in question "a complete nullity". Article 854
of the Civil Code in turn merely nullifies "the institution of heir". Considering, however, that
the will before us solely provides for the institution of petitioner as universal heir, and nothing
more, the result is the same. The entire will is null.
Upon the view we take of this case, the order of November 8, 1963 under review is hereby
affirmed. No costs allowed. So ordered.
37

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nd

1. Caneda vs CA (G.R. No. 103554, May 28, 1993)

TEODORO CANEDA, LORENZA CANEDA, TERESA CANEDA, JUAN CABALLERO,

It is contended by petitioners that the aforequoted attestation clause, in contravention of the

In support of their argument on the assignment of error above-mentioned, appellants rely on a

It is a habit of courts to reaffirm or distinguish previous cases; seldom do they admit

Narvasa, C.J., Padilla, Regalado, and Nocon, JJ., concur.

TESTATE ESTATE OF FELICIDAD ESGUERRA ALTO-YAP deceased. FAUSTO E. GAN,

Vicente Esguerra, Sr. 5 Bahagi

(Lagda) Felicidad E. Alto-Yap"

Could Rule 77 be extended, by analogy, to holographic wills?

"Considerando que sentado lo anterior, y estableciendose en el parrafo segundo del articulo

If testimonial evidence of holographic wills be permitted, one more objectionable feature —

Wherefore, the rejection of the alleged will must be sustained.

Judgment affirmed, with costs against petitioner.

IN THE MATTER OF THE PETITION TO APPROVE THE WILL OF RICARDO B.

As found by the Court of Appeals:

III. THE LOWER COURT ERRED IN DISMISSING APPELLANT'S WILL.

On September 6, 1963, petitioner registered her opposition to the motion to

Reproduced hereunder is the will:

Nov. 17, 1951

A comprehensive understanding of the term preterition employed in the law becomes a

La pretericion consiste en omitar al heredero en el testamento. O no se le nombra siquiera o

ANNUL. To reduce to nothing; annihilate; obliterate; to make void or of no effect; to nullify; to

En cuanto a la institucion de heredero, se anula. Lo que se anula deja de existir, en todo o en

The same view is expressed by Sanchez Roman: —

La consecuencia de la anulacion o nulidad de la institucion de heredero por pretericion de

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