1.Yes.
The petitioner submits that the term credible in
SUCCESSION
AY 2019-2020
Assignment
Study:
1. Articles 820-824, Witnesses to Wills
2. Cases
a. Gonzales vs CA, 90 SCRA 183
3. Articles 825-827, Codicils and Incorporation
by Reference
4. Articles 828-837, Revocation of Wills and
Testamentary Dispositions
6. Cases
a. Testate Estate of Adriana Maloto vs
CA, 158 SCRA 451
b. Gago vs Mamuyac, 49 Phil 902
c. Molo vs Molo, 90 Phil 37
d. Diaz vs De Leon, 43 Phil 413
a. Gonzales vs CA, 90 SCRA 183
FACTS:
Isabel Gabriel died on June 7, 1961 without issue.
Lutgarda Santiago (respondent), niece of Isabel, filed
a petition for probate of Isabel’s will designating her as
the principal beneficiary and executrix. The will was
typewritten in Tagalog and was executed 2 months
prior to death of Isabel.
The petition was opposed by Rizalina Gonzales
(petitioner), also a niece of Isabel, on the
following grounds: 1. the will is not genuine, 2. will was
not executed and attested as required by law, 3. the
decedent at the time of the making of the will did not
have testamentary capacity due to her age and
sickness, and 4. the will was procured through undue
influence.
The trial court disallowed the probate of the will but the
Court of Appeals Reversed the said decision of the
trial court. The petitioner filed a petition for review with
SC claiming that the CA erred in holding that the will
of the decedent was executed and attested as
required by law when there was absolutely no proof
that the 3 instrumental witnesses are credible.
ISSUE:
1. 1. Can a witness be considered competent under
Art 820-821 and still not be considered credible as
required by Art. 805?
2. Is it required that there must be evidence on record
that the witness to a will has good standing in his/her
community or that he/she is honest or upright?
HELD:
Succcession Cases Set 4
Article 805 requires something more than just being
competent and, therefore, a witness in addition to
being competent under Articles 820-821 must also be
credible under Art. 805. The competency of a person
to be an instrumental witness to a will is determined
by the statute (Art. 820 and 821), 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. 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.”
2.No. 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 trustworthiness and for being reliable, his honesty
and uprightness (such attributes are presumed of the
witness unless the contrary is proved otherwise by the
opposing party) in order that his testimony may be
believed and accepted by the trial court. It is enough
that the qualifications enumerated in Article 820 of the
Civil Code are complied with, such that the soundness
of his mind can be shown by or deduced from
his answers to the questions propounded to him, that
his age (18 years or more) is shown from his
appearance, testimony , or competently proved
otherwise, as well as the fact that he is not
blind, deaf or dumb and that he is able to read and
write to the satisfaction of the Court, and that he has
none of the disqualifications under Article 821 of the
Civil Code.
Gonzales vs. Court of Appeals
No. L-37453. May 25, 1979.*
RIZALINA GABRIEL GONZALES, petitioner, vs.
HONORABLE COURT OF APPEALS and
LUTGARDA SANTIAGO, respondents.
Court of Appeals; Evidence; Factual findings of Court
of Appeals not generally reviewable.—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.
Same; Same; Same.—Stated otherwise, findings of
facts by the Court of Appeals, when supported by
Page 1 of 23
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 ventiliated 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.
Will; Settlement of Estate; It is presumed that a
witness to a will has the qualifications prescribed by
law, unless the contrary is established by the
oppositor.—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.
Same; Same; Evidence; Naturalization Law; Word
“credible” with regards to witnesses to a will does not
have the meaning of term “credible witness” used in
the Naturalization Law.—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.
Same; Same; Same; Words “competent witness” and
“credible witness” compared.—In the strict sense, the
competency of a person to be an instrumental witness
to a will is determined by the statute, that is Arts. 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.”
Same; Same; To be considered a “credible witness”
to a will it is not mandatory that witness’ good
Succcession Cases Set 4
community standing and probity be first established.—
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.
Same; Same; Same; Attorneys; Contracts; A will duly
acknowledged before a notary public has in its favor
the presumption of regularity, as for example,
regarding the date when the notary was furnished the
residence certificates of the witnesses.—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.
Same; Same; Same; Findings that testatrix dictated
her will to her attorney without any note is a finding of
fact.—It is also a factual findings 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.
Same; Same; Same; Attestation clause best evidence
of date the will was signed.—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.
Page 2 of 23
Same; Same; Same; Fact that there was conflict of
testimony as to identity of photographer who took a
photograph of the signing and attestation of the will,
not a requirement of law, is of minor importance. What
matters most is the photograph itself.—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 and
Maria Gimpaya, Isabel Gabriel and Atty. Paraiso.”
Same; Same; It cannot be expected that the testimony
of all the witness will be identical in all their minutest
details.—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, (Pascua vs. de la
Cruz, 28 SCRA 421, 424) for it cannot be expected
that the testimony of every person will 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.
Same; Same; Findings of facts of trial court may be
reviewed and reversed where it overlooked and
misinterpreted the facts on record.—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 lies
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.
Same; Same; The three instrumental witnesses to the
will constitute the best evidence to the making of the
will.—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
Succcession Cases Set 4
to the rule that the Supreme Court cannot review and
revise the findings of fact of the respondent Court of
Appeals.
PETITION for review of the decision of the Court of
Appeals.
The facts are stated in the opinion of the Court.
Francisco D. Rilloraza, Jr. for petitioners.
Angel A. Sison for private respondent.
GUERRERO, J.:
This is a petition for review of the decision of the Court
of Appeals, First Division,1 promulgated on May 4,
1973 in CA G.R. No. 36523-R which reversed the
decision of the Court of First Instance of Rizal dated
December 15, 1964 and allowed the probate of the
last will and testament of the deceased Isabel
Gabriel. *
It appears that on June 24, 1961, herein private
respondent Lutgarda Santiago filed a petition with the
Court of First Instance of Rizal docketed as Special
Proceedings No. 3617, for the probate of a will alleged
to have been executed by the deceased Isabel Gabriel
and designating therein petitioner as the principal
beneficiary and executrix.
There is no dispute in the records that the late Isabel
Andres Gabriel died as a widow and without issue in
the municipality of Navotas, province of Rizal her
place of residence, on June 7, 1961 at the age of
eighty-five (85), having been born in 1876. It is
likewise not controverted that herein private
respondent Lutgarda Santiago and petitioner Rizalina
Gabriel Gonzales are nieces of the deceased, and that
private respondent, with her husband and children,
lived with the deceased at the latters residence prior
an- d up to the time of her death.
The will submitted for probate, Exhibit "F", which is
typewritten and in Tagalog, appears to have been
executed in Manila on the 15th day of April, 1961, or
barely two (2) months prior to the death of Isabel
Gabriel. It consists of five (5) pages, including the
pages whereon the attestation clause and the
acknowledgment of the notary public were written.
The signatures of the deceased Isabel Gabriel appear
at the end of the will on page four and at the left margin
of all the pages. The attestation clause, which is found
on page four, reads as follows:
PATUNAY NG MGA SAKSI
Kaming mga nakalagdang mga saksi o testigo na
ang aming mga tinitirahan ay nakasulat sa
gawing kanan at kahilira ng aming mga pangalan
sa ibaba nito, ay pagpapatutuo na ipinakilala
Page 3 of 23
 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;
Succcession Cases Set 4
3. that, at the time of the alleged execution of the
purported wilt the decedent lacked testamentary
capacity due to old age and sickness; and in the
second alternative
4. That the purported WW was procured through
undue and improper pressure and influence on the
part of the principal beneficiary, and/or of some
other person for her benefit.
Lutgarda Santiago filed her Answer to the Opposition
on February 1, 1962. After trial, the court a
quo rendered judgment, the summary and dispositive
portions of which read:
Passing in summary upon the grounds advanced
by the oppositor, this Court finds:
1. That there is no iota of evidence to support the
contentio that the purported will of the deceased
was procured through undue and improper
pressure and influence on the part of the petitioner,
or of some other person for her benefit;
2. That there is insufficient evidence to sustain the
contention that at the time of the alleged execution
of the purported will, the deceased lacked
testamentary capacity due to old age and sickness;
3. That sufficient and abundant evidence warrants
conclusively the fact that the purported will of the
deceased was not executed and attested as
required by law;
4. That the evidence is likewise conclusive that the
document presented for probate, Exhibit 'F' is not
the purported win allegedly dictated by the
deceased, executed and signed by her, and
attested by her three attesting witnesses on April
15, 1961.
WHEREFORE, Exhibit "F", the document
presented for probate as the last wig and testament
of the deceased Isabel Gabriel is here by
DISALLOWED.
From this judgment of disallowance, Lutgarda
Santiago appealed to respondent Court, hence, the
only issue decided on appeal was whether or not the
will in question was executed and attested as required
by law. The Court of Appeals, upon consideration of
the evidence adduced by both parties, rendered the
decision now under review, holding that the will in
question was signed and executed by the deceased
Isabel Gabriel on April 15, 1961 in the presence of the
three attesting witnesses, Matilde Orobia, Celso
Gimpaya and Maria Gimpaya, signing and witnessing
the document in the presence of the deceased and of
each other as required by law, hence allow ed
probate.
Oppositor Rizalina Gabriel Gonzales moved for
reconsideration 3 of the aforesaid decision and such
Page 4 of 23
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
Succcession Cases Set 4
of the win Exhibit "F", was unexpected and
coincidental.
III. The Court of Appeals erred in finding that Atty,
Paraiso was not previously furnished with the names
and residence certificates of the witnesses as to
enable him to type such data into the document
Exhibit "F".
IV. The Court of Appeals erred in holding that the fact
that the three typewritten lines under the typewritten
words "Pangalan" and "Tinitirahan" were left blank
shows beyond cavil that the three attesting witnesses
were all present in the same occasion.
V. The Court of Appeals erred in reversing the trial
court's finding that it was incredible that Isabel Gabriel
could have dictated the wilt Exhibit "F , without any
note or document, to Atty. Paraiso.
VI. The Court of Appeals erred in reversing the finding
of the trial court that Matilde Orobia was not physically
present when the Will Exhibit "F" was allegedly signed
on April 15, 1961 by the deceased Isabel Gabriel and
the other witnesses Celso Gimpaya and Maria
Gimpaya.
VII. The Court of Appeals erred in holding that the trial
court gave undue importance to the picture takings as
proof that the win was improperly executed.
VIII. The Court of Appeals erred in holding that the
grave contradictions, evasions, and
misrepresentations of witnesses (subscribing and
notary) presented by the petitioner had been
explained away, and that the trial court erred in
rejecting said testimonies.
IX. The Court of Appeals acted in excess of its
appellate jurisdiction or has so far departed from the
accepted and usual course of judicial proceedings, as
to call for an exercise of the power of supervision.
X. The Court of Appeals erred in reversing the
decision of the trial court and admitting to probate
Exhibit "F", the alleged last will and testament of the
deceased Isabel Gabriel.
It will be noted from the above assignments of errors
that the same are substantially factual in character
and content. Hence, at the very outset, We must again
state the oft-repeated and well-established rule that in
this jurisdiction, the factual findings of the Court of
Appeals are not reviewable, the same being binding
and conclusive on this Court. This rule has been
stated and reiterated in a long line of cases
enumerated in Chan vs. CA (L-27488, June 30, 1970,
33 SCRA 737, 743) 12 and Tapas vs. CA (L-22202,
February 27; 1976, 69 SCRA 393), 13 and in the more
recent cases of Baptisia vs. Carillo and CA (L32192,
July 30, 1976, 72 SCRA 214, 217) and Vda. de
Catindig vs. Heirs of Catalina Roque (L-25777,
Page 5 of 23
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
Succcession Cases Set 4
meaning it has under the Naturalization Law, the latter
being a kindred legislation with the Civil Code
provisions on wigs with respect to the qualifications of
witnesses.
We find no merit to petitioner's first assignment of
error. Article 820 of the Civil Code provides the
qualifications of a witness to the execution of wills
while Article 821 sets forth the disqualification from
being a witness to a win. These Articles state:
Art. 820. Any person of sound mind and of the age
of eighteen years or more, and not blind, deaf or
dumb, and able to read and write, may be a witness
to the execution of a will mentioned in article 806 of
this Code. "Art. 821. The following are disqualified
from being witnesses to a will:
(1) Any person not domiciled in the Philippines,
(2) Those who have been convicted of falsification
of a document, perjury or false testimony.
Under the law, there is no mandatory requirement that
the witness testify initially or at any time during the trial
as to his good standing in the community, his
reputation for trustworthythiness and reliableness, his
honesty and uprightness in order that his testimony
may be believed and accepted by the trial court. It is
enough that the qualifications enumerated in Article
820 of the Civil Code are complied with, such that the
soundness of his mind can be shown by or deduced
from his answers to the questions propounded to him,
that his age (18 years or more) is shown from his
appearance, testimony , or competently proved
otherwise, as well as the fact that he is not blind, deaf
or dumb and that he is able to read and write to the
satisfaction of the Court, and that he has none of the
disqualifications under Article 821 of the Civil Code.
We reject petitioner's contention that it must first be
established in the record the good standing of the
witness in the community, his reputation for
trustworthiness and reliableness, his honesty and
uprightness, because such attributes are presumed of
the witness unless the contrary is proved otherwise by
the opposing party.
We also reject as without merit petitioner's contention
that the term "credible" as used in the Civil Code
should be given the same meaning it has under the
Naturalization Law where the law is mandatory that
the petition for naturalization must be supported by
two character witnesses who must prove their good
standing in the community, reputation for
trustworthiness and reliableness, their honesty and
uprightness. The two witnesses in a petition for
naturalization are character witnesses in that being
citizens of the Philippines, they personally know the
petitioner to be a resident of the Philippines for the
period of time required by the Act and a person of
good repute and morally irreproachable and that said
petitioner has in their opinion all the qualifications
Page 6 of 23
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
Succcession Cases Set 4
vs. Tanchuco, et al., 100 Phil. 344; Testate Estate of
Raymundo, Off. Gaz., March 18,1941, p. 788).
Private respondent maintains that the qualifications of
the three or more credible witnesses mentioned in
Article 805 of the Civil Code are those mentioned in
Article 820 of the same Code, this being obvious from
that portion of Article 820 which says "may be Q
witness to the execution of a will mentioned in Article
805 of this Code," and cites authorities that the word
"credible" insofar as witnesses to a will are concerned
simply means " competent." Thus, in the case
of Suntay vs. Suntay, 95 Phil. 500, the Supreme Court
held that "Granting that a will was duly executed and
that it was in existence at the time of, and not revoked
before, the death of the testator, still the provisions of
the lost wig must be clearly and distinctly proved by at
least two credible witnesses. 'Credible witnesses'
mean competent witnesses and not those who testify
to facts from or upon hearsay. " emphasis supplied).
In Molo Pekson and Perez Nable vs. Tanchuco, et al.,
100 Phil. 344, the Supreme Court held that "Section
620 of the same Code of Civil Procedure provides that
any person of sound mind, and of the age of eighteen
years or more, and not blind, deaf, or dumb and able
to read and write, may be a witness to the execution
of a will. This same provision is reproduced in our New
Civil Code of 1950, under Art. 820. The relation of
employer and employee, or being a relative to the
beneficiary in a win, does not disqualify one to be a
witness to a will. The main qualification of a witness in
the attestation of wills, if other qualifications as to age,
mental capacity and literacy are present, is that said
witness must be credible, that is to say, his testimony
may be entitled to credence. There is a long line of
authorities on this point, a few of which we may cite:
A 'credible witness is one who is not is not to testify
by mental incapacity, crime, or other cause.
Historical Soc of Dauphin County vs. Kelker 74 A.
619, 226 Pix 16, 134 Am. St. Rep. 1010. (Words
and Phrases, Vol. 10, p. 340).
As construed by the common law, a 'credible
witness' to a will means a 'competent witness.'
Appeal of Clark, 95 A. 517, 114 Me. 105, Ann. Cas.
1917A, 837. (lbid, p. 341).
Expression 'credible witness' in relation to
attestation of wins means 'competent witness that
is, one competent under the law to testify to fact of
execution of will. Vernon's Ann. Civ St. art.
8283. Moos vs. First State Bank of Uvalde, Tex .
Civ. App. 60 S.W. 2nd 888, 889. (Ibid, p. 342)
The term 'credible', used in the statute of wills
requiring that a will shall be attested by two credible
witnesses means competent; witnesses who, at
the time of attesting the will, are legally competent
to testify, in a court of justice, to the facts attested
by subscribing the will, the competency being
Page 7 of 23
 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
Succcession Cases Set 4
typewritten lines under the typewritten words
"pangalan" and "tinitirahan" were left blank shows
beyond cavil that the three attesting witnesses were
all present in the same occasion, in holding credible
that Isabel Gabriel could have dictated the will without
note or document to Atty. Paraiso, in holding that
Matilde Orobia was physically present when the will
was signed on April 15, 1961 by the deceased Isabel
Gabriel and the other witnesses Celso Gimpaya and
Maria Gimpaya, in holding that the trial court gave
undue importance to the picture takings as proof that
the will was improperly executed, and in holding that
the grave contradictions, evasions and
misrepresentations of the witnesses (subscribing and
notary) presented by the petitioner had been
explained away.
Since the above errors are factual We must repeat
what We have previously laid down that the findings
of fact of the appellate court are binding and
controlling which We cannot review, subject to certain
exceptions which We win consider and discuss
hereinafter. We are convinced that the appellate
court's findings are sufficiently justified and supported
by the evidence on record. Thus, the alleged
unnaturalness characterizing the trip of the testatrix to
the office of Atty. Paraiso and bringing all the
witnesses without previous appointment for the
preparation and execution of the win and that it was
coincidental that Atty. Paraiso was available at the
moment impugns the finding of the Court of Appeals
that although Atty. Paraiso admitted the visit of Isabel
Gabriel and of her companions to his office on April
15, 1961 was unexpected as there was no prior
appointment with him, but he explained that he was
available for any business transaction on that day and
that Isabel Gabriel had earlier requested him to help
her prepare her will. The finding of the appellate court
is amply based on the testimony of Celso Gimpaya
that he was not only informed on the morning of the
day that he witnessed the will but that it was the third
time when Isabel Gabriel told him that he was going to
witness the making of her will, as well as the testimony
of Maria Gimpaya that she was called by her husband
Celso Gimpaya to proceed to Isabel Gabriel's house
which was nearby and from said house, they left in a
car to the lawyer's office, which testimonies are recited
in the respondent Court's decision.
The respondent Court further found the following
facts: that Celso Gimpaya and his wife Maria Gimpaya
obtained residence certificates a few days before
Exhibit "F" was executed. Celso Gimpaya's residence
certificate No. A-5114942 was issued at Navotas,
Rizal on April 13, 1961 while Maria Gimpaya's
residence certificate No. A-5114974 was issued also
at Navotas, Rizal on April 14, 1961. The respondent
Court correctly observed that there was nothing
surprising in these facts and that the securing of these
residence certificates two days and one day,
respectively, before the execution of the will on April
15, 1961, far from showing an amazing coincidence,
Page 8 of 23
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,
Succcession Cases Set 4
1961 following the attestation clause duly executed
and signed on the same occasion, April 15, 1961. And
since Exhibit "F" is a notarial will duly acknowledged
by the testatrix and the witnesses before a notary
public, the same is a public document executed and
attested through the intervention of the notary public
and as such public document is evidence of the facts
in clear, unequivocal manner therein expressed. It has
in its favor the presumption of regularity. To contradict
all these, there must be evidence that is clear,
convincing and more than merely preponderant.
(Yturalde vs. Azurin, 28 SCRA 407). We find no such
evidence pointed by petitioner in the case at bar.
Likewise, the conclusion of the Court of Appeals in
holding that the fact that the three typewritten lines
under the typewritten words "pangalan ' and
"tinitirahan" were left blank shows beyond cavil that
the three attesting witnesses were all present in the
same occasion merits Our approval because tills
conclusion is supported and borne out by the evidence
found by the appellate court, thus: "On page 5 of
Exhibit "F", beneath the typewritten words "names",
"Res. Tax Cert. date issued" and place issued the only
name of Isabel Gabriel with Residence Tax certificate
No. A-5113274 issued on February 24, 1961 at
Navotas Rizal appears to be in typewritten form while
the names, residence tax certificate numbers, dates
and places of issuance of said certificates pertaining
to the three (3) witnesses were personally handwritten
by Atty. Paraiso. Again, this coincides with Atty.
Paraiso's even the sale must be made to close
relatives; and the seventh was the appointment of the
appellant Santiago as executrix of the will without
bond. The technical description of the properties in
paragraph 5 of Exhibit F was not given and the
numbers of the certificates of title were only supplied
by Atty. Paraiso. "
It is true that in one disposition, the numbers of the
Torrens titles of the properties disposed and the
docket number of a special proceeding are indicated
which Atty. Paraiso candidly admitted were supplied
by him, whereupon petitioner contends that it was
incredible that Isabel Gabriel could have dictated the
will Exhibit "F" without any note or document to Atty.
Paraiso, considering that Isabel Gabriel was an old
and sickly woman more than eighty-one years old and
had been suffering from a brain injury caused by two
severe blows at her head and died of terminal cancer
a few weeks after the execution of Exhibit "F". While
we can rule that this is a finding of fact which is within
the competency of the respondent appellate court in
determining the testamentary capacity of the testatrix
and is, therefore, beyond Our power to revise and
review, We nevertheless hold that the conclusion
reached by the Court of Appeals that the testatrix
dictated her will without any note or memorandum
appears to be fully supported by the following facts or
evidence appearing on record. Thus, Isabel Gabriel,
despite her age, was particularly active in her
business affairs as she actively managed the affairs of
Page 9 of 23
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
Succcession Cases Set 4
attending the execution of the will, so that in case of
failure in the memory of the subscribing witnesses, or
other casualty they may still be proved. (Thompson on
Wills, 2nd ed., Sec. 132; Leynez vs. Leynez, 68 Phil.
745).
As to the seventh error assigned by petitioner faulting
the Court of Appeals in holding that the trial court gave
undue importance to the picture-takings as proof that
the win was improperly executed, We agree with the
reasoning of the respondent court that: "Matilde
Orobia's Identification of the photographer as "Cesar
Mendoza", contrary to what the other two witnesses
(Celso and Maria Gimpaya) and Atty. Paraiso said that
the photographer was Benjamin Cifra, Jr., is at worst
a minor mistake attributable to lapse of time. The law
does not require a photographer for the execution and
attestation of the will. The fact that Miss Orobia
mistakenly Identified the photographer as Cesar
Mendoza scarcely detracts from her testimony that
she was present when the will was signed because
what matters here is not the photographer but the
photograph taken which clearly portrays Matilde
Orobia herself, her co-witnesses Celso Gimpaya. "
Further, the respondent Court correctly held: "The trial
court gave undue importance to the picture takings,
jumping therefrom to the conclusion that the will was
improperly executed. The evidence however, heavily
points to only one occasion of the execution of the will
on April 15, 1961 which was witnessed by Matilde
Orobia, Celso Gimpaya and Maria Gimpaya. These
witnesses were quite emphatic and positive when they
spoke of this occasion. Hence, their Identification of
some photographs wherein they all appeared along
with Isabel Gabriel and Atty. Paraiso was
superfluous."
Continuing, the respondent Court declared: "It is true
that the second picture-taking was disclosed at the
cross examination of Celso Gimpaya. But this was
explained by Atty. Paraiso as a reenactment of the first
incident upon the insistence of Isabel Gabriel. Such
reenactment where Matilde Orobia was admittedly no
longer present was wholly unnecessary if not
pointless. What was important was that the will was
duly executed and witnessed on the first occasion on
April 15, 1961 , " and We agree with the Court's
rationalization in conformity with logic, law and
jurisprudence which do not require picture-taking as
one of the legal requisites for the execution or probate
of a will.
Petitioner points to alleged grave contradictions,
evasions and misrepresentations of witnesses in their
respective testimonies before the trial court. On the
other hand, the respondent Court of Appeals held that
said contradictions, evasions and misrepresentations
had been explained away. Such discrepancies as in
the description of the typewriter used by Atty. Paraiso
which he described as "elite" which to him meant big
letters which are of the type in which the will was
typewritten but which was Identified by witness Jolly
Page 10 of 23
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
Succcession Cases Set 4
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
Page 11 of 23
attesting witnesses until the latter showed up at his
law office with Isabel Gabriel on April 15, 1961. Atty.
Paraiso's claim which was not controverted that he
wrote down in his own hand the date appearing on
page 5 of Exhibit "F" dissipates any lingering doubt
that he prepared and ratified the will on the date in
question."
It is also a factual finding of the Court of Appeals in
holding that it was credible that Isabel Gabriel could
have dictated the will, Exhibit "F", without any note or
document to Atty. Paraiso as against the contention of
petitioner that it was incredible. This ruling of the
respondent court is fully supported by the evidence on
record as stated in the decision under review, thus:
"Nothing in the record supports the trial court's
unbelief that Isabel Gabriel dictated her will without
any note or document to Atty. Paraiso. On the
contrary, all the three attesting witnesses uniformly
testified that Isabel Gabriel dictated her will to Atty.
Paraiso and that other than the piece of paper that she
handed to said lawyer she had no note or document.
This fact jibes with the evidence — which the trial court
itself believed was unshaken — that Isabel Gabriel
was of sound disposing memory when she executed
her will.
Exhibit "F" reveals only seven (7) dispositions which
are not complicated but quite simple. The first was
Isabel Gabriel's wish to be interred according to
Catholic rites the second was a general directive to
pay her debts if any; the third provided for P1,000.00
for her sister Praxides Gabriel Vda. de Santiago and
P2,000.00 for her brother Santiago Gabriel; the fourth
was a listing of her 13 nephews and nieces including
oppositor-appellee Rizalina Gabriel and the amount
for each legatee the fifth was the institution of the
petitioner-appellant, Lutgarda Santiago as the
principal heir mentioning in general terms seven (7)
types of properties; the sixth disposed of the
remainder of her estate which she willed in favor of
appellant Lutgarda Santiago but prohibiting the sale of
such properties to anyone except in extreme
situations in which judgment is based on a
misapprehension of facts; (5) when the findings of fact
are conflicting, (6) when the Court of Appeals, in
making its findings, went beyond the issues of the
case and the same is contrary to the admissions of
both appellant and appellee. (Roque vs. Buan, et al.,
G.R. No. L-22459, Oct. 31, 1967; Ramos vs. Pepsi
Cola Bottling Co., G.R. No. L-22533, Feb. 9, 1967;
Hilarion Jr. vs. City of Manila, G.R. No. L-19570; Sept.
14, 1967).
Petitioner's insistence is without merit. We hold that
the case at bar does not fall within any of the
exceptions enumerated above. We likewise hold that
the findings of fact of the respondent appellate court
are fully supported by the evidence on record. The
conclusions are fully sustained by substantial
evidence. We find no abuse of discretion and We
discern no misapprehension of facts. The respondent
Succcession Cases Set 4
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.
Page 12 of 23
WHEREFORE, IN VIEW OF THE FOREGOING, the
judgment appealed from is hereby AFFIRMED, with Gonzales vs. Court of Appeals, 90 SCRA 183, No. L-
costs against the petitioner. 37453 May 25, 1979

SO ORDERED.

Teehankee, Makasiar, De Castro and Herrera, JJ.,

concur.

Judgment affirmed.

Notes.—The cumulative effect of circumstances may

lead to the conclusion that the testator was indeed
mentally in capacitated to make a will, that is, to know
the nature of his estate which is to be disposed of the
proper objects of his bounty, and the character of the
testamentary act. (Ramirez vs. Ramirez, 39 SCRA
147.)

An acknowledging notary cannot serve as a witness

to a will at the same time. (Cruz vs. Villasor, 54 SCRA
31.)

Even if its allowance is not opposed, the court must be

convinced of the authenticity and due execution of the
will which requires that in such a situation at least one
attesting witness must testify. (Vda. de Precilla vs.
Narciso, 46 SCRA 538.)

Nothing less than the best evidence should be

required to be presented to the court before a
document purporting to be a will is to be admitted to
probate or be denied probate. (Vda. de Precilla vs.
Narciso, 46 SCRA 538.)

The jurisdiction of a probate court becomes vested

upon the delivery thereto of the will even if no petition
for its allowance was filed until later, because, upon
the will being deposited, the court could, motu proprio
have taken steps to fix the time and place for proving
the will and issued the corresponding notices
conformably to what is prescribed by Section 3, Rule
76, of the Revised Rules of Court (Section 3, Rule 77,
of the Old Rules of Court.) (Rodriguez vs. Borja, 17
SCRA 418.)

Where intestate proceedings before a court of first

instance had already been commenced, the probate
of the will should be filed in the same court, either in a
separate special proceeding or in an appropriate
motion for said purpose filed is already pending
intestate proceeding. (Uriarte vs. Court of First
Instance of Negros Occidental, 33 SCRA 252.)

A will maybe allowed even if some witnesses do not

remember having attested to it, if other evidence
satisfactorily show due execution, and that failure of
witness to identify his signature does not provate.
(Maravilla vs. Maravilla, 37 SCRA 672.)

——o0o——
Succcession Cases Set 4 Page 13 of 23
6. Cases
a. Testate Estate of Adriana Maloto
vs CA, 158 SCRA 451
Testate Estate of Adriana Maloto vs. Court of Appeals
No. L-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.
Civil Law; Wills; Revocation of Will; To constitute an
effective revocation, the physical act of destruction of
a will must be coupled with animus revocandi on the
part of the testator.—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 the express
direction and in the presence of the testator. Of
course, it goes without saying that the document
destroyed must be the will itself.
Same; Same; Same; Same; Intention to revoke must
be accompanied by overt physical act of burning,
tearing, obliterating or cancelling the will by the
testator or by another person in his presence and
under his express direction.—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 proferred
as a will were burned.
Civil Procedure; Res Adjudicata; Doctrine of res
adjudicata finds no application in the case at bar;
Requisites of res adjudicata.—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
Succcession Cases Set 4
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. We do not find here the
presence of all the enumerated requisites.
Same; Same; Same; Strictly speaking, no final
judgment rendered insofar as the probate of Adriana
Maloto's will is concerned.—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 Adria iana. As such, that j
udgment 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. 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.
PETITION for certiorari to review the decision of the
Court of Appeals.
The facts are stated in the opinion of the Court.
Testate Estate of Adriana Maloto vs. Court of Appeals,
158 SCRA 451, No. L-76464 February 29, 1988
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
Page 14 of 23
and Felino both surnamed Maloto. The trial court
dismissed the petition on April 30, 1970. Complaining
against the dismissal, again, the petitioners came to
this Court on a petition for review by certiorari. 2 Acting
on the said petition, we set aside the trial court's order
and directed it to proceed to hear the case on the
merits. The trial court, after hearing, found the will to
have already been revoked by the testatrix. Adriana
Maloto, and thus, denied the petition. The petitioners
appealed the trial court's decision to the Intermediate
Appellate Court which, on June 7, 1985, affirmed the
order. The petitioners' motion for reconsideration of
the adverse decision proved to be of no avail, hence,
this petition.
For a better understanding of the controversy, a
factual account would be a great help.
On October 20, 1963, Adriana Maloto died leaving as
heirs her niece and nephews, the petitioners Aldina
Maloto-Casiano and Constancio, Maloto, and the
private respondents Panfilo Maloto and Felino Maloto.
Believing that the deceased did not leave behind a last
will and testament, these four heirs commenced on
November 4, 1963 an intestate proceeding for the
settlement of their aunt's estate. The case was
instituted in the then Court of First Instance of Iloilo
and was docketed as Special Proceeding No. 1736.
However, while the case was still in progress, or to be
exact on February 1, 1964, the parties — Aldina,
Constancio, Panfilo, and Felino — executed an
agreement of extrajudicial settlement of Adriana's
estate. The agreement provided for the division of the
estate into four equal parts among the parties. The
Malotos then presented the extrajudicial settlement
agreement to the trial court for approval which the
court did on March 21, 1964. That should have
signalled the end of the controversy, but,
unfortunately, it had not.
Three years later, or sometime in March 1967, Atty.
Sulpicio Palma, a former associate of Adriana's
counsel, the late Atty. Eliseo Hervas, discovered a
document entitled "KATAPUSAN NGA
PAGBUBULAT-AN (Testamento)," dated January
3,1940, and purporting to be the last will and
testament of Adriana. Atty. Palma claimed to have
found the testament, the original copy, while he was
going through some materials inside the cabinet
drawer formerly used by Atty. Hervas. The document
was submitted to the office of the clerk of the Court of
First Instance of Iloilo on April 1, 1967. Incidentally,
while Panfilo and Felino are still named as heirs in the
said will, Aldina and Constancio are bequeathed much
bigger and more valuable shares in the estate of
Adriana than what they received by virtue of the
agreement of extrajudicial settlement they had earlier
signed. The will likewise gives devises and legacies to
other parties, among them being the petitioners Asilo
de Molo, the Roman Catholic Church of Molo, and
Purificacion Miraflor.
Succcession Cases Set 4
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.)
Page 15 of 23
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
Succcession Cases Set 4
timely from the order dated November 16, 1968 of the
trial court in the intestate proceeding (Special
Proceeding No. 1736) denying their (petitioners')
motion to reopen the case, and their prayer to annul
the previous proceedings therein and to allow the last
will and testament of the late Adriana Maloto. This is
untenable.
The doctrine of res adjudicata finds no application in
the present controversy. For a judgment to be a bar to
a subsequent case, the following requisites must
concur: (1) the presence of a final former judgment;
(2) the former judgment was rendered by a court
having jurisdiction over the subject matter and the
parties; (3) the former judgment is a judgment on the
merits; and (4) there is, between the first and the
second action, Identity of parties, of subject matter,
and of cause of action. 5 We do not find here the
presence of all the enumerated requisites.
For one, there is yet, strictly speaking, no final
judgment rendered insofar as the probate of Adriana
Maloto's will is concerned. The decision of the trial
court in Special Proceeding No. 1736, although final,
involved only the intestate settlement of the estate of
Adriana. As such, that judgment could not in any
manner be construed to be final with respect to the
probate of the subsequently discovered will of the
decedent. Neither is it a judgment on the merits of the
action for probate. This is understandably so because
the trial court, in the intestate proceeding, was without
jurisdiction to rule on the probate of the contested will
. 6 After all, an action for probate, as it implies, is
founded on the presence of a will and with the
objective of proving its due execution and validity,
something which can not be properly done in an
intestate settlement of estate proceeding which is
predicated on the assumption that the decedent left no
will. Thus, there is likewise no Identity between the
cause of action in intestate proceeding and that in an
action for probate. Be that as it may, it would be
remembered that it was precisely because of our
ruling in G.R. No. L-30479 that the petitioners
instituted this separate action for the probate of the
late Adriana Maloto's will. Hence, on these grounds
alone, the position of the private respondents on this
score can not be sustained.
One last note. The private respondents point out that
revocation could be inferred from the fact that "(a)
major and substantial bulk of the properties mentioned
in the will had been disposed of: while an insignificant
portion of the properties remained at the time of death
(of the testatrix); and, furthermore, more valuable
properties have been acquired after the execution of
the will on January 3,1940." 7 Suffice it to state here
that as these additional matters raised by the private
respondents are extraneous to this special
proceeding, they could only be appropriately taken up
after the will has been duly probated and a certificate
of its allowance issued.
Page 16 of 23
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.
Yap (Chairman), Melencio-Herrera, and Paras JJ.,
concur.
Padilla, J., took no part.
b. Gago vs Mamuyac, 49 Phil 902
[No. 26317. January 29, 1927]
Estate of Miguel Mamuyac, deceased. FRANCISCO
GAGO, petitioner and appellant, vs. CORNELIO
MAMUYAC, AMBROSIO LARIOSA, FELICIANA
BAUZON, and CATALINA MAMUYAC, opponents
and appellees.
WILLS, CANCELLATION OF; PRESUMPTION.—The
law does not require any evidence of the revocation or
cancellation of the will to be preserved. It therefore
becomes difficult at times to prove the cancellation or
revocation of wills. The fact that such cancellation or
revocation has taken place must either remain
unproved or 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.
APPEAL from a judgment of the Court of First
Instance of La Union. Teodoro, J.
The facts are stated in the opinion of the court.
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
Succcession Cases Set 4
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 f or 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
Anastasio 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 copy of its original
which remained in the possession of the deceased
testator Miguel Mamuyac, who revoked it before his
death as per testimony of witnesses Jose Fenoy, who
typed the will of the testator on April 16, 1919, and
Carlos Bejar, who saw on December 30, 1920, the
original of Exhibit A (will of 1919) actually cancelled by
the testator Miguel Mamuyac, who assured 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 of 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
Page 17 of 23
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 f rom alleging that f act.
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 the 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 or 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 fact that the original will of 1919 could
not be f ound af ter the death of the testator Miguel
Mamuyac and in view of the positive proof that the
same had been cancelled, we are f orced 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 proof 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. 26063.)1
Succcession Cases Set 4
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
VillaReal, JJ., concur.
Judgment affirmed. Gago vs. Mamuyac, 49 Phil. 902,
No. 26317 January 29, 1927
c. Molo vs Molo, 90 Phil 37
[No. L-2538. September 21, 1951]
Testate Estate of the Deceased MARIANO MOLO Y
LEGASPI. JUANA JUAN VDA. DE MOLO, petitioner
and appellee, vs. Luz, GLICERIA and CORNELIO
MOLO, oppositors and appellants.
1.WILLS; REVOCATION BY SUBSEQUENT WILL;
EFFECT OF VOID REVOCATORY CLAUSE.—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 annuling the previous will, inasmuch as
said revocatory clause is void (Samson vs. Naval, 41
Phil., 838).
2.ID.; PROBATE; DEPENDENT RELATIVE
REVOCATION.—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 where it is founded on the
mistaken belief that the later will has been validly
executed and would be given due effect. The earlier
will can still be admitted to probate under the principle
of "dependent relative revocation". The theory on
which this principle is predicated is that the testator did
not intend to die intestate. And this intention is clearly
manifest where he executed two wills on two different
occasions and instituted his wife as his universal heir.
APPEAL from an order of the Court of First Instance
of Rizal. Tan, J.
The facts are stated in the opinion of the Court.
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
Page 18 of 23
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 latter will contains a clause
which expressly revokes the 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 f or 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
as 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,
Succcession Cases Set 4
in special proceeding No, 8022, in order to enable her
to obtain the probate of another alleged will of Molo
dated 1918.
"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 which in their opinion
indicate that petitioner connived with witness Canuto
Perez in an effort to defeat and frustrate the probate
of the 1939 will because of her knowledge that said
will was intrinsically defective in that "the one and only
testamentary disposition thereof was a 'disposición
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 deceased.
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 presumptions
and conjectures not supported by any proof. For this
reason, counsel contends, the lower court was
justified in disregarding them and in passing them sub
silentio in its decision.
A careful examination of the evidence available in this
case seems to justify this contention. There is indeed
no evidence which may justify the insinuation that
petitioner had deliberately intended to frustrate the
probate of the 1939 will of the deceased to enable her
to seek the probate of another will other than a mere
conjecture drawn from the apparently unexpected
testimony of Canuto Perez that he went out of the
room to answer an urgent call of nature when Artemio
Reyes was signing the will and the failure of petitioner
Page 19 of 23
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 rehearing has also
been explained, and it appears that petitioner has
failed because his whereabouts could not be found.
Whether this is true or not is not 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 take 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 f or 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 the
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 strength 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 "disposición captatoria", which
knowledge she may easily acquire through
consultation with a lawyer, there was no need for her
to go through the ordeal 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 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
Succcession Cases Set 4
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 to
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 of
estoppel which would prevent her from seeking the
probate of the 1918 will simply because her effort to
obtain the allowance of the 1939 will has failed
considering that in both the 1918 and 1939 wills she
was instituted 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 for being zealous
in protecting her interest.
The next contention of appellants refers to the
revocatory clause contained in the 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 will 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
in that case is here controlling.
There is merit in this contention. We have carefully
read the facts involved in the Samson case and 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 why 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
Page 20 of 23
archaic or antiquated and runs counter to the modern
trend prevailing in American jurisprudence. They
maintain that said ruling is no longer controlling but
merely represents the point of view of the minority and
should, therefore, be abandoned, more so if we
consider the fact that section 623 of our Code of Civil
Procedure, which governs the revocation of wills, is of
American origin and as such should follow the
prevailing trend of the majority view in the United
States. A long line of authorities is cited in support of
this contention. And these authorities hold the view,
that "an express revocation is immediately effective
upon the execution of the subsequent will, and does
not require that it first undergo the formality of a
probate proceeding". (p. 63, appellants' brief).
While there are many cases which uphold the view
entertained by counsel for oppositors, and that view
appears to be controlling in the states where the
decisions had been promulgated, however, we are
reluctant to fall in line with the assertion that 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 on the
subject of revocation of wills. But the impression we
gathered from a review and 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 prior 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
nontestamentary 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
Succcession Cases Set 4
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 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 (1935) 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 abandoning it as now suggested by
counsel for the oppositors.
It is true that our law on the matter (sec. 623, Code of
Civil Procedure) provides that a will may be revoked
"by some will, codicil, or other writing executed as
provided 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 contend 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 revocatory
clause contained in said will, himself deliberately
Page 21 of 23
destroyed the original of the 1918 will, and that for this
reason the will submitted by petitioner for probate in
these proceedings is only a duplicate of said original.
There is no evidence which may directly indicate that
the testator deliberately destroyed the original of the
1918 will because of his knowledge of the revocatory
clause contained in the will he executed in 1939. The
only evidence we have is that when the first will was
executed in 1918, Juan Salcedo, who prepared it,
gave the original and copies to the testator himself and
apparently they remained in his possession until he
executed his second will in 1939. And when the 1939
will was denied probate on November 29, 1943, and
petitioner was asked by her attorney to look for
another will, she found the duplicate copy (Exhibit A)
among the papers or files of the testator. She did not
find the original.
If it can be inferred that the testator deliberately
destroyed the 1918 will because of his knowledge of
the revocatory clause of the 1939 will, and it is true
that he gave a duplicate copy thereof to his wife, the
herein petitioner, the most logical step for the testator
to take is to recall said duplicate copy in order that it
may likewise be destroyed. But this was not done as
shown by the fact that said duplicate copy remained in
the possession of petitioner. It is possible that
because of the long lapse of twenty-one (21) years
since the first will was executed, the original of the will
had been misplaced or lost, and forgetting that there
was a copy, the testator deemed it wise to execute
another will containing exactly the same testamentary
dispositions. Whatever may be the conclusion we may
draw from this chain of circumstances, the stubborn
fact is that there is no direct evidence of voluntary or
deliberate destruction of the first will by the testator.
This matter cannot be left to mere inference or
conjecture.
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 some reason. The doctrine is
Succcession Cases Set 4
not 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 the 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 the new testamentary disposition, upon
whose validity the revocation depends, is equivalent
to the non-fulfillment of a suspensive condition, and
hence prevents the revocation of the original will. But
a mere intent to make at some time a will in 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. 233.)
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 occasions 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
Page 22 of 23
readiness and sincerity. We are convinced that they
told the truth.
Wherefore, the order appealed from is hereby
affirmed, with costs against the appellants.
Parás, C. J., Feria, Pablo, Bengzon, Tuason, and
Jugo, JJ., concur.
Reyes, J., concurs in the result.
Order affirmed. Molo vs. Molo, 90 Phil. 37, No. L-2538
September 21, 1951
d. Diaz vs De Leon, 43 Phil 413
[No. 17714. May 31, 1922]
In the matter of the estate of Jesus de Leon. IGNACIA
DIAZ, petitioner and appellant, vs. ANA DE LEON,
opponent and appellee.
WILLS; REVOCATION; "ANIMO REVOCANDI."—
According to the statute governing the subject in this
jurisdiction the destruction animo revocandi of a will
constitutes, in itself, a sufficient revocation. (Sec. 623,
Code of Civil Procedure.) The original will herein
presented for probate having been destroyed animo
revocandi, cannot be declared the will and last
testament of the testator.
APPEAL from a judgment of the Court of First
Instance of Iloilo. Camus, J.
From the evidence submitted in this case, it appears
that the testator, shortly after the execution cution 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 h&d 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. Judgment is affirmed with costs against the
petitioner. So ordered.
Araullo, C. J., Malcolm, Avanceña, Ostrand, and
Johns, JJ., concur.
Villamor, J., did not take part.
Judgment affirmed. Diaz vs. De Leon, 43 Phil. 413,
No. 17714 May 31, 1922

The facts are stated in the opinion of the court.

Montinola, Montinola & Hontiveros and Jose Lopez

Vito for appellant.

Francisco A. Delgado, Powell & Hill and Padilla &

Trenas for appellee.

ROMUALDEZ, J.:

The only question raised in this case is whether or not

the will executed by Jesus de Leon, now deceased,
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 clothed with all the necessary
rSquisites to constitute a sufficient revocation.

But according to the statute governing the subject in

this jurisdiction, the destruction of a will with animo
revocandi constitutes, in itself, a sufficient revocation.
(Sec. 623, Code of Civil Procedure.)

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