ART.

806
G.R. No. 122880

April 12, 2006

FELIX AZUELA, Petitioner, vs.COURT OF APPEALS,

GERALDA AIDA CASTILLO substituted by ERNESTO
G. CASTILLO, Respondents.
The core of this petition is a highly defective notarial will,
purportedly executed by Eugenia E. Igsolo (decedent),
who died on 16 December 1982 at the age of 80. In
refusing to give legal recognition to the due execution of
this document, the Court is provided the opportunity to
assert a few important doctrinal rules in the execution of
notarial wills, all self-evident in view of Articles 805 and
806 of the Civil Code.
A will whose attestation clause does not contain the
number of pages on which the will is written is
fatally defective. A will whose attestation clause is
not signed by the instrumental witnesses is fatally
defective. And perhaps most importantly, a will
which does not contain an acknowledgment, but a
merejurat, is fatally defective. Any one of these
defects is sufficient to deny probate. A notarial will
with all three defects is just aching for judicial
rejection.
There is a distinct and consequential reason the Civil
Code provides a comprehensive catalog of imperatives
for the proper execution of a notarial will. Full and faithful
compliance with all the detailed requisites under Article
805 of the Code leave little room for doubt as to the
validity in the due execution of the notarial will. Article
806 likewise imposes another safeguard to the validity of
notarial wills that they be acknowledged before a
notary public by the testator and the witnesses. A
notarial will executed with indifference to these two codal
provisions opens itself to nagging questions as to its
legitimacy.
The case stems from a petition for probate filed on 10
April 1984 with the Regional Trial Court (RTC) of Manila.
The petition filed by petitioner Felix Azuela sought to
admit to probate the notarial will of Eugenia E. Igsolo,
which was notarized on 10 June 1981. Petitioner is the
son of the cousin of the decedent.
The will, consisting of two (2) pages and written in the
vernacular Pilipino, read in full:
HULING HABILIN NI EUGENIA E. IGSOLO
SA NGALAN NG MAYKAPAL, AMEN:
AKO, si EUGENIA E. IGSOLO, nakatira sa 500 San
Diego St., Sampaloc, Manila, pitongput siyam (79) na
gulang, nasa hustong pagi-isip, pag-unawa at memoria
ay nag-hahayag na ito na ang aking huling habilin at
testamento, at binabali wala ko lahat ang naunang
ginawang habilin o testamento:
Una-Hinihiling ko na ako ay mailibing sa Sementerio del
Norte, La Loma sang-ayong sa kaugalian at patakaran
ng simbahang katoliko at ang taga-pag-ingat (Executor)
ng habiling ito ay magtatayo ng bantayog upang silbing
ala-ala sa akin ng aking pamilya at kaibigan;

Pangalawa-Aking ipinagkakaloob at isinasalin ang lahat

ng karapatan sa aking pamangkin na si Felix Azuela, na
siyang nag-alaga sa akin sa mahabang panahon, yaong
mga bahay na nakatirik sa lote numero 28, Block 24 at
nakapangalan sa Pechaten Korporasyon, ganoon din
ibinibigay ko ang lahat ng karapatan sa bahay na
nakatirik sa inoopahan kong lote, numero 43, Block 24
na pag-aari ng Pechaten Corporation. Ipinagkakaloob
kong buong buo ang lahat ng karapatan sa bahay at
lupa na nasa 500 San Diego St., Lot 42, Block 24,
Sampaloc, Manila kay Felix Azuela at ang pagkakaloob
kong ito ay walang pasubalit at kondiciones;
Pangatlo- Na ninunumbrahan ko si VART PAGUE na
siyang nagpapatupad ng huling habiling ito at
kagustuhan ko rin na hindi na kailanman siyang maglagak ng piyansiya.
Aking nilagdaan ang Huling Habilin na ito dito sa Maynila
ika 10 ng Hunyo, 1981.
(Sgd.)
EUGENIA E. IGSOLO
(Tagapagmana)
PATUNAY NG MGA SAKSI
Ang kasulatang ito, na binubuo ng ____ dahon pati ang
huling dahong ito, na ipinahayag sa amin ni Eugenia E.
Igsolo, tagapagmana na siya niyang Huling Habilin,
ngayon ika-10 ng Hunyo 1981, ay nilagdaan ng
nasabing tagapagmana sa ilalim ng kasulatang
nabanggit at sa kaliwang panig ng lahat at bawat dahon,
sa harap ng lahat at bawat sa amin, at kami namang
mga saksi ay lumagda sa harap ng nasabing
tagapagmana at sa harap ng lahat at bawat isa sa amin,
sa ilalim ng nasabing kasulatan at sa kaliwang panig ng
lahat at bawat dahon ng kasulatan ito.
EUGENIA E. IGSOLO
address: 500 San Diego St.
Sampaloc, Manila Res. Cert. No. A-7717-37
Issued at Manila on March 10, 1981.
QUIRINO AGRAVA
address: 1228-Int. 3, Kahilum
Pandacan, Manila Res. Cert. No. A-458365
Issued at Manila on Jan. 21, 1981
LAMBERTO C. LEAO
address: Avenue 2, Blcok 7,
Lot 61, San Gabriel, G.MA., Cavite Res.
Cert. No. A-768277 issued at Carmona, Cavite on Feb.
7, 1981
JUANITO ESTRERA
address: City Court Compound,
City of Manila Res. Cert. No. A574829
Issued at Manila on March 2, 1981.
Nilagdaan ko at ninotario ko ngayong 10 ng Hunyo 10,
1981 dito sa Lungsod ng Maynila.
(Sgd.)
PETRONIO Y. BAUTISTA
Doc. No. 1232 ; NOTARIO PUBLIKO
Page No. 86 ; Until Dec. 31, 1981

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Book No. 43 ; PTR-152041-1/2/81-Manila

Series of 1981 TAN # 1437-977-81

testatrix, the following statement is made under the subtitle, "Patunay Ng Mga Saksi":

The three named witnesses to the will affixed their

signatures on the left-hand margin of both pages of the
will, but not at the bottom of the attestation clause.

"Ang kasulatang ito, na binubuo ng _____ dahon pati

ang huling dahong ito, na ipinahayag sa amin ni Eugenia
N. Igsolo, tagapagmana na siya niyang Huling Habilin,
ngayong ika-10 ng Hunyo 1981, ay nilagdaan ng
nasabing tagapagmana sa ilalim ng kasulatang
nabanggit at sa kaliwang panig ng lahat at bawat dahon,
sa harap ng lahat at bawat sa amin, at kami namang
mga saksi ay lumagda sa harap ng nasabing
tagapagmana at sa harap ng lahat at bawat isa sa amin,
sa ilalim ng nasabing kasulatan at sa kaliwang panig ng
lahat at bawat dahon ng kasulatan ito."

The probate petition adverted to only two (2) heirs,

legatees and devisees of the decedent, namely:
petitioner himself, and one Irene Lynn Igsolo, who was
alleged to have resided abroad. Petitioner prayed that
the will be allowed, and that letters testamentary be
issued to the designated executor, Vart Prague.
The petition was opposed by Geralda Aida Castillo
(Geralda Castillo), who represented herself as the
attorney-in-fact of "the 12 legitimate heirs" of the
decedent.2 Geralda Castillo claimed that the will is a
forgery, and that the true purpose of its emergence was
so it could be utilized as a defense in several court
cases filed by oppositor against petitioner, particularly for
forcible entry and usurpation of real property, all
centering on petitioners right to occupy the properties of
the decedent.3 It also asserted that contrary to the
representations of petitioner, the decedent was actually
survived by 12 legitimate heirs, namely her
grandchildren, who were then residing abroad. Per
records, it was subsequently alleged that decedent was
the widow of Bonifacio Igsolo, who died in 1965,4 and
the mother of a legitimate child, Asuncion E. Igsolo, who
predeceased her mother by three (3) months.5
Oppositor Geralda Castillo also argued that the will was
not executed and attested to in accordance with law.
She pointed out that decedents signature did not appear
on the second page of the will, and the will was not
properly acknowledged. These twin arguments are
among the central matters to this petition.
After due trial, the RTC admitted the will to probate, in an
Order dated 10 August 1992.6 The RTC favorably took
into account the testimony of the three (3) witnesses to
the will, Quirino Agrava, Lamberto Leano, and Juanito
Estrada. The RTC also called to fore "the modern
tendency in respect to the formalities in the execution of
a will x x x with the end in view of giving the testator
more freedom in expressing his last wishes;"7 and from
this perspective, rebutted oppositors arguments that the
will was not properly executed and attested to in
accordance with law.
After a careful examination of the will and consideration
of the testimonies of the subscribing and attesting
witnesses, and having in mind the modern tendency in
respect to the formalities in the execution of a will, i.e.,
the liberalization of the interpretation of the law on the
formal requirements of a will with the end in view of
giving the testator more freedom in expressing his last
wishes, this Court is persuaded to rule that the will in
question is authentic and had been executed by the
testatrix in accordance with law.
On the issue of lack of acknowledgement, this Court has
noted that at the end of the will after the signature of the

The aforequoted declaration comprises the attestation

clause and the acknowledgement and is considered by
this Court as a substantial compliance with the
requirements of the law.
On the oppositors contention that the attestation clause
was not signed by the subscribing witnesses at the
bottom thereof, this Court is of the view that the signing
by the subscribing witnesses on the left margin of the
second page of the will containing the attestation clause
and acknowledgment, instead of at the bottom thereof,
substantially satisfies the purpose of identification and
attestation of the will.
With regard to the oppositors argument that the will was
not numbered correlatively in letters placed on upper
part of each page and that the attestation did not state
the number of pages thereof, it is worthy to note that the
will is composed of only two pages. The first page
contains the entire text of the testamentary dispositions,
and the second page contains the last portion of the
attestation clause and acknowledgement. Such being
so, the defects are not of a serious nature as to
invalidate the will. For the same reason, the failure of the
testatrix to affix her signature on the left margin of the
second page, which contains only the last portion of the
attestation clause and acknowledgment is not a fatal
defect.
As regards the oppositors assertion that the signature of
the testatrix on the will is a forgery, the testimonies of the
three subscribing witnesses to the will are convincing
enough to establish the genuineness of the signature of
the testatrix and the due execution of the will.8
The Order was appealed to the Court of Appeals by
Ernesto Castillo, who had substituted his since
deceased mother-in-law, Geralda Castillo. In a Decision
dated 17 August 1995, the Court of Appeals reversed the
trial court and ordered the dismissal of the petition for
probate.9 The Court of Appeals noted that the attestation
clause failed to state the number of pages used in the
will, thus rendering the will void and undeserving of
probate.10
Hence, the present petition.
Petitioner argues that the requirement under Article 805
of the Civil Code that "the number of pages used in a
notarial will be stated in the attestation clause" is merely

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directory, rather than mandatory, and thus susceptible to

what he termed as "the substantial compliance rule."11
The solution to this case calls for the application of
Articles 805 and 806 of the Civil Code, which we
replicate in full.
Art. 805. Every will, other than a holographic will, must
be subscribed at the end thereof by the testator himself
or by the testator's name written by some other person
in his presence, and by his express direction, and
attested and subscribed by three or more credible
witnesses in the presence of the testator and of one
another.
The testator or the person requested by him to write his
name and the instrumental witnesses of the will, shall
also sign, as aforesaid, each and every page thereof,
except the last, on the left margin, and all the pages
shall be numbered correlatively in letters placed on the
upper part of each page.
The attestation shall state the number of pages used
upon which the will is written, and the fact that the
testator signed the will and every page thereof, or
caused some other person to write his name, under his
express direction, in the presence of the instrumental
witnesses, and that the latter witnessed and signed the
will and all the pages thereof in the presence of the
testator and of one another.
If the attestation clause is in a language not known to the
witnesses, it shall be interpreted to them.
Art. 806. Every will must be acknowledged before a
notary public by the testator and the witnesses. The
notary public shall not be required to retain a copy of the
will, or file another with the office of the Clerk of Court.
The appellate court, in its Decision, considered only one
defect, the failure of the attestation clause to state the
number of pages of the will. But an examination of the
will itself reveals several more deficiencies.
As admitted by petitioner himself, the attestation clause
fails to state the number of pages of the will.12 There was
an incomplete attempt to comply with this requisite, a
space having been allotted for the insertion of the
number of pages in the attestation clause. Yet the blank
was never filled in; hence, the requisite was left
uncomplied with.
The Court of Appeals pounced on this defect in reversing
the trial court, citing in the process Uy Coque v. Navas L.
Sioca13 and In re: Will of Andrada.14 In Uy Coque, the
Court noted that among the defects of the will in
question was the failure of the attestation clause to state
the number of pages contained in the will.15 In ruling that
the will could not be admitted to probate, the Court made
the following consideration which remains highly relevant
to this day: "The purpose of requiring the number of
sheets to be stated in the attestation clause is
obvious; the document might easily be so prepared
that the removal of a sheet would completely change
the testamentary dispositions of the will and in the
absence of a statement of the total number of sheets

such removal might be effected by taking out the

sheet and changing the numbers at the top of the
following sheets or pages. If, on the other hand, the
total number of sheets is stated in the attestation clause
the falsification of the document will involve the inserting
of new pages and the forging of the signatures of the
testator and witnesses in the margin, a matter attended
with much greater difficulty."16
The case of In re Will of Andrada concerned a will the
attestation clause of which failed to state the number of
sheets or pages used. This consideration alone was
sufficient for the Court to declare "unanim[ity] upon the
point that the defect pointed out in the attesting clause is
fatal."17 It was further observed that "it cannot be denied
that the x x x requirement affords additional security
against the danger that the will may be tampered with;
and as the Legislature has seen fit to prescribe this
requirement, it must be considered material."18
Against these cited cases, petitioner cites Singson v.
Florentino19 and Taboada v. Hon. Rosal,20 wherein the
Court allowed probate to the wills concerned therein
despite the fact that the attestation clause did not state
the number of pages of the will. Yet the appellate court
itself considered the import of these two cases, and
made the following distinction which petitioner is unable
to rebut, and which we adopt with approval:
Even a cursory examination of the Will (Exhibit "D"), will
readily show that the attestation does not state the
number of pages used upon which the will is written.
Hence, the Will is void and undeserving of probate.
We are not impervious of the Decisions of the Supreme
Court in "Manuel Singson versus Emilia Florentino, et
al., 92 Phil. 161 and Apolonio [Taboada] versus Hon.
Avelino Rosal, et al., 118 SCRA 195," to the effect that a
will may still be valid even if the attestation does not
contain the number of pages used upon which the Will is
written. However, the Decisions of the Supreme Court
are not applicable in the aforementioned appeal at
bench. This is so because, in the case of "Manuel
Singson versus Emilia Florentino, et al., supra," although
the attestation in the subject Will did not state the
number of pages used in the will, however, the same
was found in the last part of the body of the Will:
"x x x
The law referred to is article 618 of the Code of Civil
Procedure, as amended by Act No. 2645, which requires
that the attestation clause shall state the number of
pages or sheets upon which the will is written, which
requirement has been held to be mandatory as an
effective safeguard against the possibility of interpolation
or omission of some of the pages of the will to the
prejudice of the heirs to whom the property is intended to
be bequeathed (In re Will of Andrada, 42 Phil. 180; Uy
Coque vs. Navas L. Sioca, 43 Phil., 405; Gumban vs.
Gorcho, 50 Phil. 30; Quinto vs. Morata, 54 Phil. 481;
Echevarria vs. Sarmiento, 66 Phil. 611). The ratio
decidendi of these cases seems to be that the
attestation clause must contain a statement of the
number of sheets or pages composing the will and that if

!3

this is missing or is omitted, it will have the effect of

invalidating the will if the deficiency cannot be supplied,
not by evidence aliunde, but by a consideration or
examination of the will itself. But here the situation is
different. While the attestation clause does not state the
number of sheets or pages upon which the will is
written,however, the last part of the body of the will
contains a statement that it is composed of eight pages,
which circumstance in our opinion takes this case out of
the rigid rule of construction and places it within the
realm of similar cases where a broad and more liberal
view has been adopted to prevent the will of the testator
from being defeated by purely technical
considerations." (page 165-165, supra) (Underscoring
supplied)

In the same vein, petitioner cites the report of the Civil

Code Commission, which stated that "the underlying and
fundamental objective permeating the provisions on the
[law] on [wills] in this project consists in the
[liberalization] of the manner of their execution with the
end in view of giving the testator more [freedom] in
[expressing] his last wishes. This objective is in accord
with the [modern tendency] in respect to the formalities
in the execution of wills."24 However, petitioner
conveniently omits the qualification offered by the Code
Commission in the very same paragraph he cites from
their report, that such liberalization be "but with sufficient
safeguards and restrictions to prevent the commission of
fraud and the exercise of undue and improper pressure
and influence upon the testator."25

In "Apolonio Tabaoda versus Hon. Avelino Rosal, et

al." supra, the notarial acknowledgement in the Will
states the number of pages used in the:

Caneda v. Court of Appeals26 features an extensive

discussion made by Justice Regalado, speaking for the Court
on the conflicting views on the manner of interpretation of the
legal formalities required in the execution of the attestation
clause in wills.27 Uy Coque and Andrada are cited therein,
along with several other cases, as examples of the application
of the rule of strict construction.28 However, the Code
Commission opted to recommend a more liberal construction
through the "substantial compliance rule" under Article 809. A
cautionary note was struck though by Justice J.B.L. Reyes as
to how Article 809 should be applied:

"x x x
We have examined the will in question and noticed that
the attestation clause failed to state the number of pages
used in writing the will. This would have been a fatal
defect were it not for the fact that, in this case, it is
discernible from the entire will that it is really and actually
composed of only two pages duly signed by the testatrix
and her instrumental witnesses. As earlier stated, the
first page which contains the entirety of the testamentary
dispositions is signed by the testatrix at the end or at the
bottom while the instrumental witnesses signed at the
left margin. The other page which is marked as "Pagina
dos" comprises the attestation clause and the
acknowledgment. The acknowledgment itself states that
"this Last Will and Testament consists of two pages
including this page" (pages 200-201, supra)
(Underscoring supplied).
However, in the appeal at bench, the number of pages
used in the will is not stated in any part of the Will. The
will does not even contain any notarial acknowledgment
wherein the number of pages of the will should be
stated.21
Both Uy Coque and Andrada were decided prior to the
enactment of the Civil Code in 1950, at a time when the
statutory provision governing the formal requirement of
wills was Section
618 of the Code of Civil Procedure.22 Reliance on these
cases remains apropos, considering that the
requirement that the attestation state the number of
pages of the will is extant from Section 618.23 However,
the enactment of the Civil Code in 1950 did put in force a
rule of interpretation of the requirements of wills, at least
insofar as the attestation clause is concerned, that may
vary from the philosophy that governed these two cases.
Article 809 of the Civil Code states: "In the absence of
bad faith, forgery, or fraud, or undue and improper
pressure and influence, defects and imperfections in the
form of attestation or in the language used therein shall
not render the will invalid if it is proved that the will was
in fact executed and attested in substantial compliance
with all the requirements of article 805."

x x x The rule must be limited to disregarding those

defects that can be supplied by an examination of the
will itself: whether all the pages are consecutively
numbered; whether the signatures appear in each and
every page; whether the subscribing witnesses are three
or the will was notarized. All these are facts that the will
itself can reveal, and defects or even omissions
concerning them in the attestation clause can be safely
disregarded. But the total number of pages, and
whether all persons required to sign did so in the
presence of each other must substantially appear in
the attestation clause, being the only check against
perjury in the probate proceedings.29 (Emphasis
supplied.)
The Court of Appeals did cite these comments by Justice
J.B.L. Reyes in its assailed decision, considering that the
failure to state the number of pages of the will in the
attestation clause is one of the defects which cannot be
simply disregarded. In Caneda itself, the Court refused
to allow the probate of a will whose attestation clause
failed to state that the witnesses subscribed their
respective signatures to the will in the presence of the
testator and of each other,30 the other omission cited by
Justice J.B.L. Reyes which to his estimation cannot be
lightly disregarded.
Caneda suggested: "[I]t may thus be stated that the rule,
as it now stands, is that omission which can be supplied
by an examination of the will itself, without the need of
resorting to extrinsic evidence, will not be fatal and,
correspondingly, would not obstruct the allowance to
probate of the will being assailed. However, those
omissions which cannot be supplied except by
evidence aliunde would result in the invalidation of the
attestation clause and ultimately, of the will

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itself."31 Thus, a failure by the attestation clause to state

that the testator signed every page can be liberally
construed, since that fact can be checked by a visual
examination; while a failure by the attestation clause to
state that the witnesses signed in one anothers
presence should be considered a fatal flaw since the
attestation is the only textual guarantee of compliance.32
The failure of the attestation clause to state the number
of pages on which the will was written remains a fatal
flaw, despite Article 809. The purpose of the law in
requiring the clause to state the number of pages on
which the will is written is to safeguard against possible
interpolation or omission of one or some of its pages and
to prevent any increase or decrease in the pages.33 The
failure to state the number of pages equates with the
absence of an averment on the part of the instrumental
witnesses as to how many pages consisted the will, the
execution of which they had ostensibly just witnessed
and subscribed to. Following Caneda, there is
substantial compliance with this requirement if the will
states elsewhere in it how many pages it is comprised
of, as was the situation inSingson and Taboada.
However, in this case, there could have been no
substantial compliance with the requirements under
Article 805 since there is no statement in the attestation
clause or anywhere in the will itself as to the number of
pages which comprise the will.
At the same time, Article 809 should not deviate from the
need to comply with the formal requirements as
enumerated under Article 805. Whatever the inclinations
of the members of the Code Commission in
incorporating Article 805, the fact remains that they saw
fit to prescribe substantially the same formal requisites
as enumerated in Section 618 of the Code of Civil
Procedure, convinced that these remained effective
safeguards against the forgery or intercalation of notarial
wills.34 Compliance with these requirements, however
picayune in impression, affords the public a high degree
of comfort that the testator himself or herself had
decided to convey property post mortem in the manner
established in the will.35 The transcendent legislative
intent, even as expressed in the cited comments of
the Code Commission, is for the fruition of the
testators incontestable desires, and not for the
indulgent admission of wills to probate.
The Court could thus end here and affirm the Court of
Appeals. However, an examination of the will itself
reveals a couple of even more critical defects that should
necessarily lead to its rejection.
For one, the attestation clause was not signed by the
instrumental witnesses. While the signatures of the
instrumental witnesses appear on the left-hand margin of
the will, they do not appear at the bottom of the
attestation clause which after all consists of their
averments before the notary public.
Cagro v. Cagro36 is material on this point. As in this case,
"the signatures of the three witnesses to the will do not
appear at the bottom of the attestation clause, although
the page containing the same is signed by the witnesses

on the left-hand margin."37 While three (3)

Justices38 considered the signature requirement had
been substantially complied with, a majority of six (6),
speaking through Chief Justice Paras, ruled that the
attestation clause had not been duly signed, rendering
the will fatally defective.
There is no question that the signatures of the three
witnesses to the will do not appear at the bottom of the
attestation clause, although the page containing the
same is signed by the witnesses on the left-hand margin.
We are of the opinion that the position taken by the
appellant is correct. The attestation clause is "a
memorandum of the facts attending the execution of the
will" required by law to be made by the attesting
witnesses, and it must necessarily bear their signatures.
An unsigned attestation clause cannot be considered as
an act of the witnesses, since the omission of their
signatures at the bottom thereof negatives their
participation.
The petitioner and appellee contends that signatures of
the three witnesses on the left-hand margin conform
substantially to the law and may be deemed as their
signatures to the attestation clause. This is untenable,
because said signatures are in compliance with the legal
mandate that the will be signed on the left-hand margin
of all its pages. If an attestation clause not signed by the
three witnesses at the bottom thereof, be admitted as
sufficient, it would be easy to add such clause to a will
on a subsequent occasion and in the absence of the
testator and any or all of the witnesses.39
The Court today reiterates the continued efficacy
of Cagro. Article 805 particularly segregates the
requirement that the instrumental witnesses sign each
page of the will, from the requisite that the will be
"attested and subscribed by [the instrumental
witnesses]." The respective intents behind these two
classes of signature are distinct from each other. The
signatures on the left-hand corner of every page signify,
among others, that the witnesses are aware that the
page they are signing forms part of the will. On the other
hand, the signatures to the attestation clause establish
that the witnesses are referring to the statements
contained in the attestation clause itself. Indeed, the
attestation clause is separate and apart from the
disposition of the will. An unsigned attestation clause
results in an unattested will. Even if the instrumental
witnesses signed the left-hand margin of the page
containing the unsigned attestation clause, such
signatures cannot demonstrate these witnesses
undertakings in the clause, since the signatures that do
appear on the page were directed towards a wholly
different avowal.
The Court may be more charitably disposed had the
witnesses in this case signed the attestation clause
itself, but not the left-hand margin of the page containing
such clause. Without diminishing the value of the
instrumental witnesses signatures on each and every
page, the fact must be noted that it is the attestation
clause which contains the utterances reduced into

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writing of the testamentary witnesses themselves. It is

the witnesses, and not the testator, who are required
under Article 805 to state the number of pages used
upon which the will is written; the fact that the testator
had signed the will and every page thereof; and that they
witnessed and signed the will and all the pages thereof
in the presence of the testator and of one another. The
only proof in the will that the witnesses have stated
these elemental facts would be their signatures on the
attestation clause.
Thus, the subject will cannot be considered to have been
validly attested to by the instrumental witnesses, as they
failed to sign the attestation clause.
Yet, there is another fatal defect to the will on which the
denial of this petition should also hinge. The requirement
under Article 806 that "every will must be acknowledged
before a notary public by the testator and the witnesses"
has also not been complied with. The importance of this
requirement is highlighted by the fact that it had been
segregated from the other requirements under Article
805 and entrusted into a separate provision, Article 806.
The non-observance of Article 806 in this case is equally
as critical as the other cited flaws in compliance with
Article 805, and should be treated as of equivalent
import.
In lieu of an acknowledgment, the notary public, Petronio
Y. Bautista, wrote "Nilagdaan ko at ninotario ko
ngayong10 ng Hunyo 10 (sic), 1981 dito sa Lungsod ng
Maynila."40 By no manner of contemplation can those
words be construed as an acknowledgment. An
acknowledgment is the act of one who has executed a
deed in going before some competent officer or court
and declaring it to be his act or deed.41 It involves an
extra step undertaken whereby the signor actually
declares to the notary that the executor of a document
has attested to the notary that the same is his/her own
free act and deed.
It might be possible to construe the averment as a jurat,
even though it does not hew to the usual language
thereof. A jurat is that part of an affidavit where the
notary certifies that before him/her, the document was
subscribed and sworn to by the executor.42 Ordinarily,
the language of the jurat should avow that the document
was subscribed and sworn before the notary public,
while in this case, the notary public averred that he
himself "signed and notarized" the document. Possibly
though, the word "ninotario" or "notarized" encompasses
the signing of and swearing in of the executors of the
document, which in this case would involve the decedent
and the instrumental witnesses.
Yet even if we consider what was affixed by the notary
public as a jurat, the will would nonetheless remain
invalid, as the express requirement of Article 806 is that
the will be "acknowledged", and not merely subscribed
and sworn to. The will does not present any textual
proof, much less one under oath, that the decedent and
the instrumental witnesses executed or signed the will as
their own free act or deed. The acknowledgment made
in a will provides for another all-important legal

safeguard against spurious wills or those made beyond

the free consent of the testator. An acknowledgement is
not an empty meaningless act.43 The acknowledgment
coerces the testator and the instrumental witnesses to
declare before an officer of the law that they had
executed and subscribed to the will as their own free act
or deed. Such declaration is under oath and under pain
of perjury, thus allowing for the criminal prosecution of
persons who participate in the execution of spurious
wills, or those executed without the free consent of the
testator. It also provides a further degree of assurance
that the testator is of certain mindset in making the
testamentary dispositions to those persons he/she had
designated in the will.
It may not have been said before, but we can assert the
rule, self-evident as it is under Article 806. A notarial
will that is not acknowledged before a notary public
by the testator and the witnesses is fatally defective,
even if it is subscribed and sworn to before a notary
public.
There are two other requirements under Article 805
which were not fully satisfied by the will in question. We
need not discuss them at length, as they are no longer
material to the
disposition of this case. The provision requires that the
testator and the instrumental witnesses sign each and
every page of the will on the left margin, except the last;
and that all the pages shall be numbered correlatively in
letters placed on the upper part of each page. In this
case, the decedent, unlike the witnesses, failed to sign
both pages of the will on the left margin, her only
signature appearing at the so-called "logical end"44 of the
will on its first page. Also, the will itself is not numbered
correlatively in letters on each page, but instead
numbered with Arabic numerals. There is a line of
thought that has disabused the notion that these two
requirements be construed as mandatory.45 Taken in
isolation, these omissions, by themselves, may not be
sufficient to deny probate to a will. Yet even as these
omissions are not decisive to the adjudication of this
case, they need not be dwelt on, though indicative as
they may be of a general lack of due regard for the
requirements under Article 805 by whoever executed the
will.
All told, the string of mortal defects which the will in
question suffers from makes the probate denial
inexorable.
WHEREFORE, the petition is DENIED. Costs against
petitioner.
SO ORDERED.
G.R. No. L-20357

November 25, 1967

IN THE MATTER OF THE PETITION FOR THE

ALLOWANCE OF THE WILL OF GREGORIO
GATCHALIAN, deceased. PEDRO REYES
GARCIA, petitioner-appellant,
vs.
FELIPE GATCHALIAN, AURORA G. CAMINS,
ANGELES G. COSCA, FEDERICO G. TUBOG,

!6

VIRGINIA G. TALANAY and ANGELES G.

TALANAY, oppositors-appellees.
This is an appeal taken by Pedro Reyes Garcia from the
decision of the Court of First Instance of Rizal in Special
Proceedings No. 2623 denying the allowance of the will
of the late Gregorio Gatchalian, on the ground that the
attesting witnesses did not acknowledge it before a
notary public, as required by law.
On March 15, 1967, Gregorio Gatchalian, a widower of
71 years of age, died in the municipality of Pasig,
Province of Rizal, leaving no forced heirs. On April 2 of
the same year, appellant filed a petition with the above
named court for the probate of said alleged will (Exhibit
"C") wherein he was instituted as sole heir. Felipe
Gatchalian, Aurora G. Camins, Angeles G. Cosca,
Federico G. Tubog, Virginia G. Talanay and Angeles G.
Talanay, appellees herein, opposed the petition on the
ground, among others, that the will was procured by
fraud; that the deceased did not intend the instrument
signed by him to be as his will; and that the deceased
was physically and mentally incapable of making a will at
the time of the alleged execution of said will.
After due trial, the court rendered the appealed decision
finding the document Exhibit "C" to be the authentic last
will of the deceased but disallowing it for failure to
comply with the mandatory requirement of Article 806 of
the New Civil Code that the will must be
acknowledged before a notary public by the testator and
the witnesses.
An examination of the document (Exhibit "C") shows that
the same was acknowledged before a notary public by
the testator but not by the instrumental witnesses.
Article 806 of the New Civil Code reads as follows:
Every will must be acknowledged before a
notary public by the testator and the witnesses.
The notary public shall not be required to retain
a copy of the will, or file another with the office of
the Clerk of Court.
We have held heretofore that compliance with the
requirement contained in the above legal provision to the
effect that a will must be acknowledged before a notary
public by the testator and also by the witnesses is
indispensable for its validity (In re: Testate Estate of
Alberto, G. R. No. L-11948, April 29, 1959). As the
document under consideration does not comply with this
requirement, it is obvious that the same may not be
probated.
WHEREFORE, the decision appealed from is affirmed,
with costs.
G.R. No. L-7179

June 30, 1955

Testate Estate of the Late Apolinaria Ledesma.

FELICIDAD JAVELLANA, petitioner-appellee,
vs.DOA MATEA LEDESMA, oppositor-appellant.
By order of July 23, 1953, the Court of First Instance of
Iloilo admitted to probate the documents in the Visayan
dialect, marked Exhibits D and E, as the testament and

codicil duly executed by the deceased Da. Apolinaria

Ledesma Vda. de Javellana, on March 30, 1950, and
May 29, 1952, respectively, with Ramon Tabiana, Gloria
Montinola de Tabiana and Vicente Yap as witnesses.
The contestant, Da. Matea Ledesma, sister and nearest
surviving relative of said deceased, appealed from the
decision, insisting that the said exhibits were not
executed in conformity with law. The appeal was made
directly to this Court because the value of the properties
involved exceeded two hundred thousand pesos.
Originally the opposition to the probate also charged that
the testatrix lacked testamentary capacity and that the
dispositions were procured through undue influence.
These grounds were abandoned at the hearing in the
court below, where the issue was concentrated into three
specific questions: (1) whether the testament of 1950
was executed by the testatrix in the presence of the
instrumental witnesses; (2) whether the acknowledgment
clause was signed and the notarial seal affixed by the
notary without the presence of the testatrix and the
witnesses; and (3) if so, whether the codicil was thereby
rendered invalid and ineffective. These questions are the
same ones presented to us for resolution.
The contestant argues that the Court below erred in
refusing credence to her witnesses Maria Paderogao
and Vidal Allado, cook and driver, respectively, of the
deceased Apolinaria Ledesma. Both testified that on
March 30, 1950, they saw and heard Vicente Yap (one of
the witnesses to the will) inform the deceased that he
had brought the "testamento" and urge her to go to
attorney Tabiana's office to sign it; that Da. Apolinaria
manifested that she could not go, because she was not
feeling well; and that upon Yap's insistence that the will
had to be signed in the attorney's office and not
elsewhere, the deceased took the paper and signed it in
the presence of Yap alone, and returned it with the
statement that no one would question it because the
property involved was exclusively hers.
Our examination of the testimony on record discloses no
grounds for reversing the trial Court's rejection of the
improbable story of the witnesses. It is squarely
contradicted by the concordant testimony of the
instrumental witnesses, Vicente Yap, Atty. Ramon
Tabiana, and his wife Gloria Montinola, who asserted
under oath that the testament was executed by testatrix
and witnesses in the presence of each other, at the
house of the decedent on General Hughes St., Iloilo City,
on March 30, 1950. And it is highly unlikely, and contrary
to usage, that either Tabiana or Yap should have insisted
that Da. Apolinaria, an infirm lady then over 80 years old,
should leave her own house in order to execute her will,
when all three witnesses could have easily repaired
thither for the purpose. Moreover, the cross-examination
has revealed fatal flaws in the testimony of Contestant's
witnesses. Both claim to have heard the word
"testamento" for the first time when Yap used it; and they
claimed ability to recall that word four years later, despite
the fact that the term meant nothing to either. It is well
known that what is to be remembered must first be
rationally conceived and assimilated (II Moore on Facts,

!7

p. 884). Likewise, Maria Paderogao was positive that

Yap brought the will, and that the deceased alone signed
it, precisely on March 30, 1950; but she could remember
no other date, nor give satisfactory explanation why that
particular day stuck in her mind. Worse still, Allado
claimed to have heard what allegedly transpired
between Yap and Da. Apolinaria from the kitchen of the
house, that was later proved to have been separated
from the deceased's quarters, and standing at a much
lower level, so that conversations in the main building
could not be distinctly heard from the kitchen. Later, on
redirect examination, Allado sought to cure his testimony
by claiming that he was upstairs in a room where the
servants used to eat when he heard Yap converse with
his mistress; but this correction is unavailing, since it
was plainly induced by two highly leading questions from
contestant's counsel that had been previously ruled out
by the trial Court. Besides, the contradiction is hardly
consonant with this witness' 18 years of service to the
deceased.
Upon the other hand, the discrepancies in the testimony
of the instrumental witnesses urged upon us by the
contestant-appellant, concerning the presence or
absence of Aurelio Montinola at the signing of the
testament or of the codicil, and the identity of the person
who inserted the date therein, are not material and are
largely imaginary, since the witness Mrs. Tabiana
confessed inability to remember all the details of the
transaction. Neither are we impressed by the argument
that the use of some Spanish terms in the codicil and
testament (likelegado, partes iguales, plena propiedad)
is proof that its contents were not understood by the
testatrix, it appearing in evidence that those terms are of
common use even in the vernacular, and that the
deceased was a woman of wide business interests.
The most important variation noted by the contestants
concerns that signing of the certificate of
acknowledgment (in Spanish) appended to the Codicil in
Visayan, Exhibit E. Unlike the testament, this codicil was
executed after the enactment of the new Civil Code, and,
therefore, had to be acknowledged before a notary
public (Art. 806). Now, the instrumental witnesses (who
happen to be the same ones who attested the will of
1950) asserted that after the codicil had been signed by
the testatrix and the witnesses at the San Pablo
Hospital, the same was signed and sealed by notary
public Gimotea on the same occasion. On the other
hand, Gimotea affirmed that he did not do so, but
brought the codicil to his office, and signed and sealed it
there. The variance does not necessarily imply
conscious perversion of truth on the part of the
witnesses, but appears rather due to a well-established
phenomenon, the tendency of the mind, in recalling past
events, to substitute the usual and habitual for what
differs slightly from it (II Moore on Facts, p. 878; The
Ellen McGovern, 27 Fed. 868, 870).
At any rate, as observed by the Court below, whether or
not the notary signed the certification of
acknowledgment in the presence of the testatrix and the
witnesses, does not affect the validity of the codicil.

Unlike the Code of 1889 (Art. 699), the new Civil Code
does not require that the signing of the testator,
witnesses and notary should be accomplished in one
single act. A comparison of Articles 805 and 806 of the
new Civil Code reveals that while testator and witnesses
sign in the presence of each other, all that is thereafter
required is that "every will must be acknowledged before
a notary public by the testator and the witnesses" (Art.
806); i.e., that the latter should avow to the certifying
officer the authenticity of their signatures and the
voluntariness of their actions in executing the
testamentary disposition. This was done in the case
before us. The subsequent signing and sealing by the
notary of his certification that the testament was duly
acknowledged by the participants therein is no part of
the acknowledgment itself nor of the testamentary act.
Hence their separate execution out of the presence of
the testatrix and her witnesses can not be said to violate
the rule that testaments should be completed without
interruption (Andalis vs. Pulgueras, 59 Phil. 643), or, as
the Roman maxim puts it, "uno codem die ac tempore in
eadem loco", and no reversible error was committed by
the Court in so holding. It is noteworthy that Article 806
of the new Civil Code does not contain words requiring
that the testator and the witnesses should acknowledge
the testament on the same day or occasion that it was
executed.
The decision admitting the will to probate is affirmed,
with costs against appellant.
G.R. No. L-32213 November 26, 1973
AGAPITA N. CRUZ, petitioner,
vs. HON. JUDGE GUILLERMO P. VILLASOR,
Presiding Judge of Branch I, Court of First Instance
of Cebu, and MANUEL B. LUGAY, respondents.
Petition to review on certiorari the judgment of the Court
First Instance of Cebu allowing the probate of the last
will a testament of the late Valente Z. Cruz. Petitionerappellant Agapita N. Cruz, the surviving spouse of the
said decease opposed the allowance of the will (Exhibit
"E"), alleging the will was executed through fraud, deceit,
misrepresentation and undue influence; that the said
instrument was execute without the testator having been
fully informed of the content thereof, particularly as to
what properties he was disposing and that the supposed
last will and testament was not executed in accordance
with law. Notwithstanding her objection, the Court
allowed the probate of the said last will and testament
Hence this appeal by certiorari which was given due
course.
The only question presented for determination, on which
the decision of the case hinges, is whether the supposed
last will and testament of Valente Z. Cruz (Exhibit "E")
was executed in accordance with law, particularly
Articles 805 and 806 of the new Civil Code, the first
requiring at least three credible witnesses to attest and
subscribe to the will, and the second requiring the
testator and the witnesses to acknowledge the will
before a notary public.

!8

Of the three instrumental witnesses thereto, namely

Deogracias T. Jamaloas Jr., Dr. Francisco Paares and
Atty. Angel H. Teves, Jr., one of them, the last named, is
at the same time the Notary Public before whom the will
was supposed to have been acknowledged. Reduced to
simpler terms, the question was attested and subscribed
by at least three credible witnesses in the presence of
the testator and of each other, considering that the three
attesting witnesses must appear before the notary public
to acknowledge the same. As the third witness is the
notary public himself, petitioner argues that the result is
that only two witnesses appeared before the notary
public to acknowledge the will. On the other hand,
private respondent-appellee, Manuel B. Lugay, who is
the supposed executor of the will, following the
reasoning of the trial court, maintains that there is
substantial compliance with the legal requirement of
having at least three attesting witnesses even if the
notary public acted as one of them, bolstering up his
stand with 57 American Jurisprudence, p. 227 which,
insofar as pertinent, reads as follows:
It is said that there are, practical
reasons for upholding a will as against
the purely technical reason that one of
the witnesses required by law signed as
certifying to an acknowledgment of the
testator's signature under oath rather
than as attesting the execution of the
instrument.
After weighing the merits of the conflicting claims of the
parties, We are inclined to sustain that of the appellant
that the last will and testament in question was not
executed in accordance with law. The notary public
before whom the will was acknowledged cannot be
considered as the third instrumental witness since he
cannot acknowledge before himself his having signed
the will. To acknowledge before means to avow
(Javellana v. Ledesma, 97 Phil. 258, 262; Castro v.
Castro, 100 Phil. 239, 247); to own as genuine, to
assent, to admit; and "before" means in front or
preceding in space or ahead of. (The New Webster
Encyclopedic Dictionary of the English Language, p. 72;
Funk & Wagnalls New Standard Dictionary of the English
Language, p. 252; Webster's New International
Dictionary 2d. p. 245.) Consequently, if the third witness
were the notary public himself, he would have to avow
assent, or admit his having signed the will in front of
himself. This cannot be done because he cannot split his
personality into two so that one will appear before the
other to acknowledge his participation in the making of
the will. To permit such a situation to obtain would be
sanctioning a sheer absurdity.
Furthermore, the function of a notary public is, among
others, to guard against any illegal or immoral
arrangement Balinon v. De Leon, 50 0. G. 583.) That
function would defeated if the notary public were one of
the attesting instrumental witnesses. For them he would
be interested sustaining the validity of the will as it
directly involves him and the validity of his own act. It
would place him in inconsistent position and the very

purpose of acknowledgment, which is to minimize fraud

(Report of Code Commission p. 106-107), would be
thwarted.
Admittedly, there are American precedents holding that
notary public may, in addition, act as a witness to the
executive of the document he has notarized. (Mahilum v.
Court Appeals, 64 0. G. 4017; 17 SCRA 482; Sawyer v.
Cox, 43 Ill. 130). There are others holding that his
signing merely as notary in a will nonetheless makes him
a witness thereon (Ferguson v. Ferguson, 47 S. E. 2d.
346; In Re Douglas Will, N. Y. S. 2d. 641; Ragsdal v. Hill,
269 S. W. 2d. 911, Tyson Utterback, 122 So. 496; In Re
Baybee's Estate 160 N. 900; W. Merill v. Boal, 132 A.
721; See also Trenwith v. Smallwood, 15 So. 1030). But
these authorities do not serve the purpose of the law in
this jurisdiction or are not decisive of the issue herein
because the notaries public and witnesses referred to
aforecited cases merely acted as instrumental,
subscribing attesting witnesses, and not
as acknowledgingwitnesses. He the notary public acted
not only as attesting witness but also acknowledging
witness, a situation not envisaged by Article 805 of the
Civil Code which reads:
ART. 806. Every will must
be acknowledged before a notary public
by the testator and the witnesses. The
notary public shall not be required to
retain a copy of the will or file another
with the office of the Clerk of Court.
[Emphasis supplied]
To allow the notary public to act as third witness, or one
the attesting and acknowledging witnesses, would have
the effect of having only two attesting witnesses to the
will which would be in contravention of the provisions of
Article 80 be requiring at least three credible witnesses
to act as such and of Article 806 which requires that the
testator and the required number of witnesses must
appear before the notary public to acknowledge the will.
The result would be, as has been said, that only two
witnesses appeared before the notary public for or that
purpose. In the circumstances, the law would not be duly
in observed.
FOR ALL THE FOREGOING, the judgment appealed
from is hereby reversed and the probate of the last will
and testament of Valente Z. Cruz (Exhibit "E") is
declared not valid and hereby set aside.
G.R. No. L-37453 May 25, 1979
RIZALINA GABRIEL GONZALES, petitioner,
vs.HONORABLE COURT OF APPEALS and
LUTGARDA SANTIAGO, respondents.
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

!9

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.

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.

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 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 will submitted for probate, Exhibit "F", which is

typewritten and in Tagalog, appears to have been
executed in Manila on the 15th day of April, 1961, or
barely two (2) months prior to the death of Isabel
Gabriel. It consists of five (5) pages, including the pages
whereon the attestation clause and the acknowledgment
of the notary public were written. The signatures of the
deceased Isabel Gabriel appear at the end of the will on
page four and at the left margin of all the pages. The
attestation clause, which is found on page four, reads as
follows:
PATUNAY NG MGA SAKSI
Kaming mga nakalagdang mga saksi o
testigo na ang aming mga tinitirahan ay
nakasulat sa gawing kanan at kahilira
ng aming mga pangalan sa ibaba nito,
ay pagpapatutuo na ipinakilala
ipinaalam at ipinahayag sa amin ni
Isabel Gabriel na ang kasulatang ito na
binubuo ng Limang Dahon (Five Pages)
pati na ang dahong ito, na siya niyang
TESTAMENTO AT HULING HABILIN,
ngayong ika 15 ng Abril, 1961, ay
nilagdaan ng nasabing testadora na si
Isabel Gabriel ang nasabing testamento
sa ibaba o ilalim ng kasulatan na nasa
ika apat na dahon (page four) at nasa
itaas ng patunay naming ito, at sa
kaliwang panig ng lahat at bawat dahon
(and on the left hand margin of each
and every page), sa harap ng lahat at
bawat isa sa amin, at kami namang mga
saksi ay lumagda sa harap ng nasabing
testadora, at sa harap ng lahat at bawat
isa sa amin, sa ilalim ng patunay ng
mga saksi at sa kaliwang panig ng lahat
at bawa't dahon ng testamentong ito.
At the bottom thereof, under the heading "Pangalan", are
written the signatures of Matilde D. Orobia, Celso D.
Gimpaya and Maria R. Gimpaya, and opposite the
same, under the heading "Tirahan", are their respective
places of residence, 961 Highway 54, Philamlife, for
Miss Orobia, and 12 Dagala St., Navotas, Rizal, for the
two Gimpayas. Their signatures also appear on the left

The petition was opposed by Rizalina Gabriel Gonzales,

herein petitioner, assailing the document purporting to be
the will of the deceased on the following grounds:
1. that the same is not genuine; and in
the alternative
2. that the same was not executed and
attested as required by law;
3. that, at the time of the alleged
execution of the purported wilt the
decedent lacked testamentary capacity
due to old age and sickness; and in the
second alternative
4. That the purported WW was procured
through undue and improper pressure
and influence on the part of the principal
beneficiary, and/or of some other person
for her benefit.
Lutgarda Santiago filed her Answer to the Opposition on
February 1, 1962. After trial, the court a quo rendered
judgment, the summary and dispositive portions of which
read:
Passing in summary upon the grounds
advanced by the oppositor, this Court
finds:
1. That there is no iota of evidence to
support the contentio that the purported
will of the deceased was procured
through undue and improper pressure
and influence on the part of the
petitioner, or of some other person for
her benefit;
2. That there is insufficient evidence to
sustain the contention that at the time of

!10

the alleged execution of the purported

will, the deceased lacked testamentary
capacity due to old age and sickness;
3. That sufficient and abundant evidence
warrants conclusively the fact that the
purported will of the deceased was not
executed and attested as required by
law;
4. That the evidence is likewise
conclusive that the document presented
for probate, Exhibit 'F' is not the
purported win allegedly dictated by the
deceased, executed and signed by her,
and attested by her three attesting
witnesses on April 15, 1961.
WHEREFORE, Exhibit "F", the
document presented for probate as the
last wig and testament of the deceased
Isabel Gabriel is here by DISALLOWED.
From this judgment of disallowance, Lutgarda Santiago
appealed to respondent Court, hence, the only issue
decided on appeal was whether or not the will in
question was executed and attested as required by law.
The Court of Appeals, upon consideration of the
evidence adduced by both parties, rendered the decision
now under review, holding that the will in question was
signed and executed by the deceased Isabel Gabriel on
April 15, 1961 in the presence of the three attesting
witnesses, Matilde Orobia, Celso Gimpaya and Maria
Gimpaya, signing and witnessing the document in the
presence of the deceased and of each other as required
by law, hence allow ed probate.
Oppositor Rizalina Gabriel Gonzales moved for
reconsideration 3 of the aforesaid decision and such
motion was opposed 4 by petitioner-appellant Lutgarda
Santiago. Thereafter. parties submitted their respective
Memoranda, 5 and on August 28, 1973, respondent
Court, Former Special First Division, by
Resolution 6 denied the motion for reconsideration
stating that:
The oppositor-appellee contends that
the preponderance of evidence shows
that the supposed last wig and
testament of Isabel Gabriel was not
executed in accordance with law
because the same was signed on
several occasions, that the testatrix did
not sign the will in the presence of all
the instrumental witnesses did not sign
the will in the presence of each other.
The resolution of the factual issue raised
in the motion for reconsideration hinges
on the appreciation of the evidence. We
have carefully re-examined the oral and
documentary evidence of record, There
is no reason to alter the findings of fact
in the decision of this Court sought to be
set aside. 7

In her petition before this Court, oppositor Rizalina

Gabriel Gonzales contends that respondent Court
abused its discretion and/or acted without or in excess of
its jurisdiction in reverssing the findings of fact and
conclusions of the trial court. The Court, after
deliberating on the petition but without giving due course
resolved, in the Resolution dated Oct. 11, 1973 to
require the respondents to comment thereon, which
comment was filed on Nov. 14, 1973. Upon
consideration of the allegations, the issues raised and
the arguments adduced in the petition, as well as the
Comment 8 of private respondent thereon, We denied
the petition by Resolution on November 26, 1973, 9the
question raised being factual and for insufficient showing
that the findings of fact by respondent Court were
unsupported by substantial evidence.
Subsequently, or on December 17, 1973, petitioner Rim
Gabriel Goes fried a Motion for Reconsideration 10 which
private respondent answered by way of her Comment or
Opposition 11 filed on January 15, 1974. A Reply and
Rejoinder to Reply followed. Finally, on March 27, 1974,
We resolved to give due course to the petition.
The petitioner in her brief makes the following
assignment of errors:
I. The respondent Court of Appeals erred in holding that
the document, Exhibit "F" was executed and attested as
required by law when there was absolutely no proof that
the three instrumental witnesses were credible witness
II. The Court of Appeals erred in reversing the finding of
the lower court that the preparation and execution of the
win Exhibit "F", was unexpected and coincidental.
III. The Court of Appeals erred in finding that Atty,
Paraiso was not previously furnished with the names
and residence certificates of the witnesses as to enable
him to type such data into the document Exhibit "F".
IV. The Court of Appeals erred in holding that the fact
that the three typewritten lines under the typewritten
words "Pangalan" and "Tinitirahan" were left blank
shows beyond cavil that the three attesting witnesses
were all present in the same occasion.
V. The Court of Appeals erred in reversing the trial
court's finding that it was incredible that Isabel Gabriel
could have dictated the wilt Exhibit "F , without any note
or document, to Atty. Paraiso.
VI. The Court of Appeals erred in reversing the finding of
the trial court that Matilde Orobia was not physically
present when the Will Exhibit "F" was allegedly signed
on April 15, 1961 by the deceased Isabel Gabriel and the
other witnesses Celso Gimpaya and Maria Gimpaya.
VII. The Court of Appeals erred in holding that the trial
court gave undue importance to the picture takings as
proof that the win was improperly executed.
VIII. The Court of Appeals erred in holding that the grave
contradictions, evasions, and misrepresentations of
witnesses (subscribing and notary) presented by the
petitioner had been explained away, and that the trial
court erred in rejecting said testimonies.

!11

IX. The Court of Appeals acted in excess of its appellate

jurisdiction or has so far departed from the accepted and
usual course of judicial proceedings, as to call for an
exercise of the power of supervision.
X. The Court of Appeals erred in reversing the decision
of the trial court and admitting to probate Exhibit "F", the
alleged last will and testament of the deceased Isabel
Gabriel.
It will be noted from the above assignments of errors that
the same are substantially factual in character and
content. Hence, at the very outset, We must again state
the oft-repeated and well-established rule that in this
jurisdiction, the factual findings of the Court of Appeals
are not reviewable, the same being binding and
conclusive on this Court. This rule has been stated and
reiterated in a long line of cases enumerated in Chan vs.
CA (L-27488, June 30, 1970, 33 SCRA 737,
743) 12 and Tapas vs. CA (L-22202, February 27; 1976,
69 SCRA 393), 13 and in the more recent cases
of Baptisia vs. Carillo and CA (L32192, July 30, 1976, 72
SCRA 214, 217) and Vda. de Catindig vs. Heirs of
Catalina Roque (L-25777, November 26, 1976, 74 SCRA
83, 88). In the case of Chan vs. CA, this Court said:
... from Guico v. Mayuga, a 1936 decision, the opinion
being penned by the then Justice Recto, it has been
well-settled that the jurisdiction of tills Court in cases
brought to us from the Court of Appeals is limited to
reviewing and revising the errors of law imputed to it, its
findings of fact being conclusive. More specifically, in a
decision exactly a month later, this Court, speaking
through the then Justice Laurel, it was held that the
same principle is applicable, even if the Court of Appeals
was in disagreement with the lower court as to the
weight of the evidence with a consequent reversal of its
findings of fact ...
Stated otherwise, findings of facts by the Court of
Appeals, when supported by substantive evidence are
not reviewable on appeal by certiorari. Said findings of
the appellate court are final and cannot be disturbed by
Us particularly because its premises are borne out by
the record or based upon substantial evidence and what
is more, when such findings are correct. Assignments of
errors involving factual issues cannot be ventilated in a
review of the decision of the Court of Appeals because
only legal questions may be raised. The Supreme Court
is not at liberty to alter or modify the facts as set forth in
the decision of the Court of Appeals sought to be
reversed. Where the findings of the Court of Appeals are
contrary to those of the trial court, a minute scrutiny by
the Supreme Court is in order, and resort to duly-proven
evidence becomes necessary. The general rule We have
thus stated above is not without some recognized
exceptions.
Having laid down the above legal precepts as Our
foundation, We now proceed to consider petitioner's
assignments of errors.
Petitioner, in her first assignment, contends that the
respondent Court of Appeals erred in holding that the
document, Exhibit "F", was executed and attested as

required by law when there was absolutely no proof that

the three instrumental witnesses were credible
witnesses. She argues that the require. ment in Article
806, Civil Code, that the witnesses must be credible is
an absolute requirement which must be complied with
before an alleged last will and testament may be
admitted to probate and that to be a credible witness,
there must be evidence on record that the witness has a
good standing in his community, or that he is honest and
upright, or reputed to be trustworthy and reliable.
According to petitioner, unless the qualifications of the
witness are first established, his testimony may not be
favorably considered. Petitioner contends that the term
"credible" is not synonymous with "competent" for a
witness may be competent under Article 820 and 821 of
the Civil Code and still not be credible as required by
Article 805 of the same Code. It is further urged that the
term "credible" as used in the Civil Code should receive
the same settled and well- known meaning it has under
the Naturalization Law, the latter being a kindred
legislation with the Civil Code provisions on wigs with
respect to the qualifications of witnesses.
We find no merit to petitioner's first assignment of error.
Article 820 of the Civil Code provides the qualifications
of a witness to the execution of wills while Article 821
sets forth the disqualification from being a witness to a
win. These Articles state:
Art. 820. Any person of sound mind and
of the age of eighteen years or more,
and not blind, deaf or dumb, and able to
read and write, may be a witness to the
execution of a will mentioned in article
806 of this Code. "Art. 821. The
following are disqualified from being
witnesses to a will:
(1) Any person not domiciled in the
Philippines,
(2) Those who have been convicted of
falsification of a document, perjury or
false testimony.
Under the law, there is no mandatory requirement that
the witness testify initially or at any time during the trial
as to his good standing in the community, his reputation
for trustworthythiness and reliableness, his honesty and
uprightness in order that his testimony may be believed
and accepted by the trial court. It is enough that the
qualifications enumerated in Article 820 of the Civil Code
are complied with, such that the soundness of his mind
can be shown by or deduced from his answers to the
questions propounded to him, that his age (18 years or
more) is shown from his appearance, testimony , or
competently proved otherwise, as well as the fact that he
is not blind, deaf or dumb and that he is able to read and
write to the satisfaction of the Court, and that he has
none of the disqualifications under Article 821 of the Civil
Code. We reject petitioner's contention that it must first
be established in the record the good standing of the
witness in the community, his reputation for
trustworthiness and reliableness, his honesty and

!12

uprightness, because such attributes are presumed of

the witness unless the contrary is proved otherwise by
the opposing party.
We also reject as without merit petitioner's contention
that the term "credible" as used in the Civil Code should
be given the same meaning it has under the
Naturalization Law where the law is mandatory that the
petition for naturalization must be supported by two
character witnesses who must prove their good standing
in the community, reputation for trustworthiness and
reliableness, their honesty and uprightness. The two
witnesses in a petition for naturalization are character
witnesses in that being citizens of the Philippines, they
personally know the petitioner to be a resident of the
Philippines for the period of time required by the Act and
a person of good repute and morally irreproachable and
that said petitioner has in their opinion all the
qualifications necessary to become a citizen of the
Philippines and is not in any way disqualified under the
provisions of the Naturalization Law (Section 7,
Commonwealth Act No. 473 as amended).
In probate proceedings, the instrumental witnesses are
not character witnesses for they merely attest the
execution of a will or testament and affirm the formalities
attendant to said execution. And We agree with the
respondent that the rulings laid down in the cases cited
by petitioner concerning character witnesses in
naturalization proceedings are not applicable to
instrumental witnesses to wills executed under the Civil
Code of the Philippines.
In the case at bar, the finding that each and everyone of
the three instrumental witnesses, namely, Matilde
Orobia, Celso Gimpaya and Maria Gimpaya, are
competent and credible is satisfactorily supported by the
evidence as found by the respondent Court of Appeals,
which findings of fact this Tribunal is bound to accept
and rely upon. Moreover, petitioner has not pointed to
any disqualification of any of the said witnesses, much
less has it been shown that anyone of them is below 18
years of age, of unsound mind, deaf or dumb, or cannot
read or write.
It is true that under Article 805 of the New Civil Code,
every will, other than a holographic will, must be
subscribed at the end thereof by the testator himself or
by the testator's name written by some other person in
his presence, and by his express direction, and attested
and subscribed by three or more credible witnesses in
the presence of the testator and of one another, While
the petitioner submits that Article 820 and 821 of the
New Civil Code speak of the competency of a
witness due to his qualifications under the first Article
and none of the disqualifications under the second
Article, whereas Article 805 requires the attestation of
three or more credible witnesses, petitioner concludes
that the term credible requires something more than just
being competent and, therefore, a witness in addition to
being competent under Articles 820 and 821 must also
be a credible witness under Article 805.

Petitioner cites American authorities that competency

and credibility of a witness are not synonymous terms
and one may be a competent witness and yet not a
credible one. She exacerbates that there is no evidence
on record to show that the instrumental witnesses are
credible in themselves, that is, that they are of good
standing in the community since one was a family driver
by profession and the second the wife of the driver, a
housekeeper. It is true that Celso Gimpaya was the
driver of the testatrix and his wife Maria Gimpaya,
merely a housekeeper, and that Matilde Orobia was a
piano teacher to a grandchild of the testatrix But the
relation of employer and employee much less the
humble or financial position of a person do not disqualify
him to be a competent testamentary witness. (Molo
Pekson and Perez Nable vs. Tanchuco, et al., 100 Phil.
344; Testate Estate of Raymundo, Off. Gaz., March
18,1941, p. 788).
Private respondent maintains that the qualifications of
the three or more credible witnesses mentioned in Article
805 of the Civil Code are those mentioned in Article 820
of the same Code, this being obvious from that portion of
Article 820 which says "may be Q witness to the
execution of a will mentioned in Article 805 of this Code,"
and cites authorities that the word "credible" insofar as
witnesses to a will are concerned simply means "
competent." Thus, in the case of Suntay vs. Suntay, 95
Phil. 500, the Supreme Court held that "Granting that a
will was duly executed and that it was in existence at the
time of, and not revoked before, the death of the testator,
still the provisions of the lost wig must be clearly and
distinctly proved by at least two credible
witnesses. 'Credible witnesses' mean competent
witnesses and not those who testify to facts from or upon
hearsay. " emphasissupplied).
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

!13

A. 517, 114 Me. 105, Ann. Cas. 1917A,

837. (lbid, p. 341).
Expression 'credible witness' in relation
to attestation of wins means 'competent
witness that is, one competent under the
law to testify to fact of execution of will.
Vernon's Ann. Civ St. art. 8283. Moos
vs. First State Bank of Uvalde, Tex . Civ.
App. 60 S.W. 2nd 888, 889. (Ibid, p.
342)
The term 'credible', used in the statute
of wills requiring that a will shall be
attested by two credible witnesses
means competent; witnesses who, at
the time of attesting the will, are legally
competent to testify, in a court of justice,
to the facts attested by subscribing the
will, the competency being determined
as of the date of the execution of the will
and not of the timr it is offered for
probate,Smith vs. Goodell 101 N.E. 255,
256, 258 111. 145. (Ibid.)
Credible witnesses as used in the
statute relating to wills, means
competent witnesses that is, such
persons as are not legally disqualified
from testifying in courts of justice, by
reason of mental incapacity, interest, or
the commission of crimes, or other
cause excluding them from testifying
generally, or rendering them
incompetent in respect of the particular
subject matter or in the particular suit.
Hill vs. Chicago Title & Trust co 152 N.E.
545, 546, 322 111. 42. (Ibid. p, 343)
In the strict sense, the competency of a person to be an
instrumental witness to a will is determined by the
statute, that is Art. 820 and 821, Civil Code, whereas his
credibility depends On the appreciation of his testimony
and arises from the belief and conclusion of the Court
that said witness is telling the truth. Thus, in the case
ofVda. de Aroyo v. El Beaterio del Santissimo Rosario de
Molo, No. L-22005, May 3, 1968, the Supreme Court
held and ruled that: "Competency as a witness is one
thing, and it is another to be a credible witness, so
credible that the Court must accept what he says. Trial
courts may allow a person to testify as a witness upon a
given matter because he is competent, but may
thereafter decide whether to believe or not to believe his
testimony." In fine, We state the rule that the
instrumental witnesses in Order to be competent must
be shown to have the qualifications under Article 820 of
the Civil Code and none of the disqualifications under
Article 821 and for their testimony to be credible, that is
worthy of belief and entitled to credence, it is not
mandatory that evidence be first established on record
that the witnesses have a good standing in the
community or that they are honest and upright or
reputed to be trustworthy and reliable, for a person is
presumed to be such unless the contrary is established

otherwise. In other words, the instrumental witnesses

must be competent and their testimonies must be
credible before the court allows the probate of the will
they have attested. We, therefore, reject petitioner's
position that it was fatal for respondent not to have
introduced prior and independent proof of the fact that
the witnesses were "credible witnesses that is, that they
have a good standing in the community and reputed to
be trustworthy and reliable.
Under the second, third, fourth, fifth, sixth, seventh and
eighth assignments of errors, petitioner disputes the
findings of fact of the respondent court in finding that the
preparation and execution of the will was expected and
not coincidental, in finding that Atty. Paraiso was not
previously furnished with the names and residence
certificates of the witnesses as to enable him to type
such data into the document Exhibit "F", in holding that
the fact that the three typewritten lines under the
typewritten words "pangalan" and "tinitirahan" were left
blank shows beyond cavil that the three attesting
witnesses were all present in the same occasion, in
holding credible that Isabel Gabriel could have dictated
the will without note or document to Atty. Paraiso, in
holding that Matilde Orobia was physically present when
the will was signed on April 15, 1961 by the deceased
Isabel Gabriel and the other witnesses Celso Gimpaya
and Maria Gimpaya, in holding that the trial court gave
undue importance to the picture takings as proof that the
will was improperly executed, and in holding that the
grave contradictions, evasions and misrepresentations
of the witnesses (subscribing and notary) presented by
the petitioner had been explained away.
Since the above errors are factual We must repeat what
We have previously laid down that the findings of fact of
the appellate court are binding and controlling which We
cannot review, subject to certain exceptions which We
win consider and discuss hereinafter. We are convinced
that the appellate court's findings are sufficiently justified
and supported by the evidence on record. Thus, the
alleged unnaturalness characterizing the trip of the
testatrix to the office of Atty. Paraiso and bringing all the
witnesses without previous appointment for the
preparation and execution of the win and that it was
coincidental that Atty. Paraiso was available at the
moment impugns the finding of the Court of Appeals that
although Atty. Paraiso admitted the visit of Isabel Gabriel
and of her companions to his office on April 15, 1961
was unexpected as there was no prior appointment with
him, but he explained that he was available for any
business transaction on that day and that Isabel Gabriel
had earlier requested him to help her prepare her will.
The finding of the appellate court is amply based on the
testimony of Celso Gimpaya that he was not only
informed on the morning of the day that he witnessed
the will but that it was the third time when Isabel Gabriel
told him that he was going to witness the making of her
will, as well as the testimony of Maria Gimpaya that she
was called by her husband Celso Gimpaya to proceed to
Isabel Gabriel's house which was nearby and from said
house, they left in a car to the lawyer's office, which

!14

testimonies are recited in the respondent Court's

decision.

Paraiso and that no such list was given the lawyer in any
previous occasion or date prior to April 15, 1961.

The respondent Court further found the following facts:

that Celso Gimpaya and his wife Maria Gimpaya
obtained residence certificates a few days before Exhibit
"F" was executed. Celso Gimpaya's residence certificate
No. A-5114942 was issued at Navotas, Rizal on April 13,
1961 while Maria Gimpaya's residence certificate No.
A-5114974 was issued also at Navotas, Rizal on April
14, 1961. The respondent Court correctly observed that
there was nothing surprising in these facts and that the
securing of these residence certificates two days and
one day, respectively, before the execution of the will on
April 15, 1961, far from showing an amazing
coincidence, reveals that the spouses were earlier
notified that they would be witnesses to the execution of
Isabel Gabriel's will.

But whether Atty. Paraiso was previously furnished with

the names and residence certificates of the witnesses on
a prior occasion or on the very occasion and date in April
15, 1961 when the will was executed, is of no moment
for such data appear in the notarial acknowledgment of
Notary Public Cipriano Paraiso, subscribed and sworn to
by the witnesses on April 15, 1961 following the
attestation clause duly executed and signed on the same
occasion, April 15, 1961. And since Exhibit "F" is a
notarial will duly acknowledged by the testatrix and the
witnesses before a notary public, the same is a public
document executed and attested through the
intervention of the notary public and as such public
document is evidence of the facts in clear, unequivocal
manner therein expressed. It has in its favor the
presumption of regularity. To contradict all these, there
must be evidence that is clear, convincing and more than
merely preponderant. (Yturalde vs. Azurin, 28 SCRA
407). We find no such evidence pointed by petitioner in
the case at bar.

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.

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

!15

nevertheless hold that the conclusion reached by the

Court of Appeals that the testatrix dictated her will
without any note or memorandum appears to be fully
supported by the following facts or evidence appearing
on record. Thus, Isabel Gabriel, despite her age, was
particularly active in her business affairs as she actively
managed the affairs of the movie business ISABELITA
Theater, paying the aparatistas herself until June 4,
1961, 3 days before her death. She was the widow of
the late Eligio Naval, former Governor of Rizal Province
and acted as coadministratrix in the Intestate Estate of
her deceased husband Eligio Naval. The text of the win
was in Tagalog, a dialect known and understood by her
and in the light of all the circumstances, We agree with
the respondent Court that the testatrix dictated her will
without any note or memorandum, a fact unanimously
testified to by the three attesting witnesses and the
notary public himself.
Petitioner's sixth assignment of error is also bereft of
merit. The evidence, both testimonial and documentary
is, according to the respondent court, overwhelming that
Matilde Orobia was physically present when the will was
signed on April 15, 1961 by the testatrix and the other
two witnesses, Celso Gimpaya and Maria Gimpaya.
Such factual finding of the appellate court is very clear,
thus: "On the contrary, the record is replete with proof
that Matilde Orobia was physically present when the will
was signed by Isabel Gabriel on April '15, 1961 along
with her co-witnesses Celso Gimpaya and Maria
Gimpaya. The trial court's conclusion that Orobia's
admission that she gave piano lessons to the child of the
appellant on Wednesdays and Saturdays and that April
15, 1961 happened to be a Saturday for which reason
Orobia could not have been present to witness the will
on that day is purely conjectural. Witness Orobia did
not admit having given piano lessons to the appellant's
child every Wednesday and Saturday without fail. It is
highly probable that even if April 15, 1961 were a
Saturday, she gave no piano lessons on that day for
which reason she could have witnessed the execution of
the will. Orobia spoke of occasions when she missed
giving piano lessons and had to make up for the same.
Anyway, her presence at the law office of Atty. Paraiso
was in the morning of April 15, 1961 and there was
nothing to preclude her from giving piano lessons on the
afternoon of the same day in Navotas, Rizal."
In addition to the testimony of Matilde Orobia, Celso
Gimpaya and Maria Gimpaya that Matilde was present
on April 15, 1961 and that she signed the attestation
clause to the will and on the left-hand margin of each of
the pages of the will, the documentary evidence which is
the will itself, the attestation clause and the notarial
acknowledgment overwhelmingly and convincingly prove
such fact that Matilde Orobia was present on that day of
April 15, 1961 and that she witnessed the will by signing
her name thereon and acknowledged the same before
the notary public, Atty. Cipriano P. Paraiso. The
attestation clause which Matilde Orobia signed is the
best evidence as to the date of signing because it
preserves in permanent form a recital of all the material
facts attending the execution of the will. This is the very

purpose of the attestation clause which is made for the

purpose of preserving in permanent form a record of the
facts attending the execution of the will, so that in case
of failure in the memory of the subscribing witnesses, or
other casualty they may still be proved. (Thompson on
Wills, 2nd ed., Sec. 132; Leynez vs. Leynez, 68 Phil.
745).
As to the seventh error assigned by petitioner faulting
the Court of Appeals in holding that the trial court gave
undue importance to the picture-takings as proof that the
win was improperly executed, We agree with the
reasoning of the respondent court that: "Matilde Orobia's
Identification of the photographer as "Cesar Mendoza",
contrary to what the other two witnesses (Celso and
Maria Gimpaya) and Atty. Paraiso said that the
photographer was Benjamin Cifra, Jr., is at worst a minor
mistake attributable to lapse of time. The law does not
require a photographer for the execution and attestation
of the will. The fact that Miss Orobia mistakenly
Identified the photographer as Cesar Mendoza scarcely
detracts from her testimony that she was present when
the will was signed because what matters here is not the
photographer but the photograph taken which clearly
portrays Matilde Orobia herself, her co-witnesses Celso
Gimpaya. " Further, the respondent Court correctly held:
"The trial court gave undue importance to the picture
takings, jumping therefrom to the conclusion that the will
was improperly executed. The evidence however,
heavily points to only one occasion of the execution of
the will on April 15, 1961 which was witnessed by
Matilde Orobia, Celso Gimpaya and Maria Gimpaya.
These witnesses were quite emphatic and positive when
they spoke of this occasion. Hence, their Identification of
some photographs wherein they all appeared along with
Isabel Gabriel and Atty. Paraiso was superfluous."
Continuing, the respondent Court declared: "It is true
that the second picture-taking was disclosed at the cross
examination of Celso Gimpaya. But this was explained
by Atty. Paraiso as a reenactment of the first incident
upon the insistence of Isabel Gabriel. Such reenactment
where Matilde Orobia was admittedly no longer present
was wholly unnecessary if not pointless. What was
important was that the will was duly executed and
witnessed on the first occasion on April 15, 1961 , " and
We agree with the Court's rationalization in conformity
with logic, law and jurisprudence which do not require
picture-taking as one of the legal requisites for the
execution or probate of a will.
Petitioner points to alleged grave contradictions,
evasions and misrepresentations of witnesses in their
respective testimonies before the trial court. On the other
hand, the respondent Court of Appeals held that said
contradictions, evasions and misrepresentations had
been explained away. Such discrepancies as in the
description of the typewriter used by Atty. Paraiso which
he described as "elite" which to him meant big letters
which are of the type in which the will was typewritten
but which was Identified by witness Jolly Bugarin of the
N.B.I. as pica the mistake in mentioning the name of the
photographer by Matilde Orobia to be Cesar Mendoza

!16

when actually it was Benjamin Cifra, Jr. these are

indeed unimportant details which could have been
affected by the lapse of time and the treachery of human
memory such that by themselves would not alter the
probative value of their testimonies on the true execution
of the will, (Pascual vs. dela Cruz, 28 SCRA 421, 424)
for it cannot be expected that the testimony of every
person win be Identical and coinciding with each other
with regard to details of an incident and that witnesses
are not expected to remember all details. Human
experience teach us "that contradictions of witnesses
generally occur in the details of certain incidents, after a
long series of questionings, and far from being an
evidence of falsehood constitute a demonstration of
good faith. In as much as not all those who witness an
incident are impressed in like manner, it is but natural
that in relating their impressions, they should not agree
in the minor details; hence the contradictions in their
testimony." (Lopez vs. Liboro, 81 Phil. 429).
It is urged of Us by the petitioner that the findings of the
trial court should not have been disturbed by the
respondent appellate court because the trial court was in
a better position to weigh and evaluate the evidence
presented in the course of the trial. As a general rule,
petitioner is correct but it is subject to well-established
exceptions. The right of the Court of Appeals to review,
alter and reverse the findings of the trial court where the
appellate court, in reviewing the evidence has found that
facts and circumstances of weight and influence have
been ignored and overlooked and the significance of
which have been misinterpreted by the trial court, cannot
be disputed. Findings of facts made by trial courts
particularly when they are based on conflicting evidence
whose evaluation hinges on questions of credibility of
contending witnesses hes peculiarly within the province
of trial courts and generally, the appellate court should
not interfere with the same. In the instant case, however,
the Court of Appeals found that the trial court had
overlooked and misinterpreted the facts and
circumstances established in the record. Whereas the
appellate court said that "Nothing in the record supports
the trial court's unbelief that Isabel Gabriel dictated her
will without any note or document to Atty. Paraiso;" that
the trial court's conclusion that Matilde Orobia could not
have witnessed anybody signing the alleged will or that
she could not have witnessed Celso Gimpaya and Maria
Gimpaya sign the same or that she witnessed only the
deceased signing it, is a conclusion based not on facts
but on inferences; that the trial court gave undue
importance to the picture-takings, jumping therefrom to
the conclusion that the will was improperly executed and
that there is nothing in the entire record to support the
conclusion of the court a quo that the will signing
occasion was a mere coincidence and that Isabel
Gabriel made an appointment only with Matilde Orobia
to witness the signing of her will, then it becomes the
duty of the appellate court to reverse findings of fact of
the trial court in the exercise of its appellate jurisdiction
over the lower courts.
Still the petitioner insists that the case at bar is an
exception to the rule that the judgment of the Court of

Appeals is conclusive as to the facts and cannot be

reviewed by the Supreme Court. Again We agree with
the petitioner that among the exceptions are: (1) when
the conclusion is a finding grounded entirely on
speculations, surmises or conjectures; (2) when the
inference is manifestly mistaken, absurd or impossible;
(3) when there is a grave abuse of discretion; (4) when
the presence of each other as required by law. "
Specifically, We affirm that on April 15, 1961 the testatrix
Isabel Gabriel, together with Matilde Orobia, Celso
Gimpaya and his wife Maria Gimpaya, and a
photographer proceeded in a car to the office of Atty.
Cipriano Paraiso at the Bank of P.I. Building, Manila in
the morning of that day; that on the way, Isabel Gabriel
obtained a medical certificate from one Dr. Chikiamko
which she gave to Atty. Paraiso upon arriving at the
latter's office and told the lawyer that she wanted her will
to be made; that Atty. Paraiso asked Isabel Gabriel to
dictate what she wanted to be written in the will and the
attorney wrote down the dictation of Isabel Gabriel in
Tagalog, a language known to and spoken by her; that
Atty. Paraiso read back to her what he wrote as dictated
and she affirmed their correctness; the lawyer then typed
the will and after finishing the document, he read it to her
and she told him that it was alright; that thereafter, Isabel
Gabriel signed her name at the end of the will in the
presence of the three witnesses Matilde Orobia, Celso
Gimpaya and Maria Gimpaya and also at the left-hand
margin of each and every page of the document in the
presence also of the said three witnesses; that thereafter
Matilde Orobia attested the will by signing her name at
the end of the attestation clause and at the left-hand
margin of pages 1, 2, 3 and 5 of the document in the
presence of Isabel Gabriel and the other two witnesses,
Celso Gimpaya and Maria Gimpaya; then, Celso
Gimpaya signed also the will at the bottom of the
attestation clause and at the left-hand margin of the
other pages of the document in the presence of Isabel
Gabriel, Matilde Orobia and Maria Gimpaya; that Maria
Gimpaya followed suit, signing her name at the foot of
the attestation clause and at the left-hand margin of
every page in the presence of Isabel Gabriel, Matilde
Orobia and Celso Gimpaya; that thereafter, Atty. Paraiso
notarized the will as Page No. 94, Book No. IV, Series of
1961, in his Notarial Register. On the occasion of the
execution and attestation of the will, a photographer took
pictures, one Exhibit "G", depicting Matilde Orobia, the
testatrix Isabel Gabriel, Celso Gimpaya, Maria Gimpaya
and Atty. Paraiso, taken on said occasion of the signing
of the will, and another, Exhibit "H", showing Matilde
Orobia signing testimony that he had earlier advised
Isabel Gabriel to bring with her at least the Mayor and a
Councilor of Navotas, Rizal to be her witnesses for he
did not know beforehand the Identities of the three
attesting witnesses until the latter showed up at his law
office with Isabel Gabriel on April 15, 1961. Atty.
Paraiso's claim which was not controverted that he wrote
down in his own hand the date appearing on page 5 of
Exhibit "F" dissipates any lingering doubt that he
prepared and ratified the will on the date in question."

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It is also a factual finding of the Court of Appeals in

holding that it was credible that Isabel Gabriel could
have dictated the will, Exhibit "F", without any note or
document to Atty. Paraiso as against the contention of
petitioner that it was incredible. This ruling of the
respondent court is fully supported by the evidence on
record as stated in the decision under review, thus:
"Nothing in the record supports the trial court's unbelief
that Isabel Gabriel dictated her will without any note or
document to Atty. Paraiso. On the contrary, all the three
attesting witnesses uniformly testified that Isabel Gabriel
dictated her will to Atty. Paraiso and that other than the
piece of paper that she handed to said lawyer she had
no note or document. This fact jibes with the evidence
which the trial court itself believed was unshaken that
Isabel Gabriel was of sound disposing memory when
she executed her will.
Exhibit "F" reveals only seven (7) dispositions which are
not complicated but quite simple. The first was Isabel
Gabriel's wish to be interred according to Catholic rites
the second was a general directive to pay her debts if
any; the third provided for P1,000.00 for her sister
Praxides Gabriel Vda. de Santiago and P2,000.00 for
her brother Santiago Gabriel; the fourth was a listing of
her 13 nephews and nieces including oppositor-appellee
Rizalina Gabriel and the amount for each legatee the
fifth was the institution of the petitioner-appellant,
Lutgarda Santiago as the principal heir mentioning in
general terms seven (7) types of properties; the sixth
disposed of the remainder of her estate which she willed
in favor of appellant Lutgarda Santiago but prohibiting
the sale of such properties to anyone except in extreme
situations in which judgment is based on a
misapprehension of facts; (5) when the findings of fact
are conflicting, (6) when the Court of Appeals, in making
its findings, went beyond the issues of the case and the
same is contrary to the admissions of both appellant and
appellee. (Roque vs. Buan, et al., G.R. No. L-22459,
Oct. 31, 1967; Ramos vs. Pepsi Cola Bottling Co., G.R.
No. L-22533, Feb. 9, 1967; Hilarion Jr. vs. City of Manila,
G.R. No. L-19570; Sept. 14, 1967).
Petitioner's insistence is without merit. We hold that the
case at bar does not fall within any of the exceptions
enumerated above. We likewise hold that the findings of
fact of the respondent appellate court are fully supported
by the evidence on record. The conclusions are fully
sustained by substantial evidence. We find no abuse of
discretion and We discern no misapprehension of facts.
The respondent Court's findings of fact are not
conflicting. Hence, the well-established rule that the
decision of the Court of Appeals and its findings of fact
are binding and conclusive and should not be disturbed
by this Tribunal and it must be applied in the case at bar
in its full force and effect, without qualification or
reservation. The above holding simply synthesize the
resolutions we have heretofore made in respect ' to
petitioner's previous assignments of error and to which
We have disagreed and, therefore, rejected.
The last assignments of error of petitioner must
necessarily be rejected by Us as We find the respondent

Court acted properly and correctly and has not departed

from the accepted and usual course of judicial
proceedings as to call for the exercise of the power of
supervision by the Supreme Court, and as We find that
the Court of Appeals did not err in reversing the decision
of the trial court and admitting to probate Exhibit "F", the
last will and testament of the deceased Isabel Gabriel.
We rule that the respondent Court's factual findings upon
its summation and evaluation of the evidence on record
is unassailable that: "From the welter of evidence
presented, we are convinced that the will in question
was executed on April 15, 1961 in the presence of
Matilde Orobia, Celso Gimpaya and Maria Gimpaya
signing and witnessing the same in the the will on a table
with Isabel Gabriel, Celso Gimpaya and Maria Gimpaya
sitting around the table. Atty. Paraiso, after finishing the
notarial act, then delivered the original to Isabel Gabriel
and retained the other copies for his file and notarial
register. A few days following the signing of the will,
Isabel Gabriel, Celso Gimpaya and another
photographer arrived at the office of Atty. Paraiso and
told the lawyer that she wanted another picture taken
because the first picture did not turn out good. The
lawyer told her that this cannot be done because the will
was already signed but Isabel Gabriel insisted that a
picture be taken, so a simulated signing was performed
during which incident Matilde Orobia was not present.
Petitioner's exacerbation centers on the supposed
incredibility of the testimonies of the witnesses for the
proponent of the will, their alleged evasions,
inconsistencies and contradictions. But in the case at
bar, the three instrumental witnesses who constitute the
best evidence of the will making have testified in favor of
the probate of the will. So has the lawyer who prepared
it, one learned in the law and long in the practice thereof,
who thereafter notarized it. All of them are disinterested
witnesses who stand to receive no benefit from the
testament. The signatures of the witnesses and the
testatrix have been identified on the will and there is no
claim whatsoever and by anyone, much less the
petitioner, that they were not genuine. In the last and
final analysis, the herein conflict is factual and we go
back to the rule that the Supreme Court cannot review
and revise the findings of facts of the respondent Court
of Appeals.
WHEREFORE, IN VIEW OF THE FOREGOING, the
judgment appealed from is hereby AFFIRMED, with
costs against the petitioner.
SO ORDERED.
ART. 808 and 809
G.R. No. 74695 September 14, 1993
In the Matter of the Probate of the Last Will and
Testament of the Deceased Brigido Alvarado,
CESAR ALVARADO, petitioner,
vs. HON. RAMON G. GAVIOLA, JR., Presiding
Justice, HON. MA. ROSARIO QUETULIO LOSA and
HON. LEONOR INES LUCIANO, Associate Justices,

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Intermediate Appellate Court, First Division (Civil

Cases), and BAYANI MA. RINO, respondents.
Before us is an appeal from the Decision dated 11 April
1986 1 of the First Civil Cases Division of the then
Intermediate Appellate Court, now Court of Appeals,
which affirmed the Order dated 27 June 1983 2 of the
Regional Trial Court of Sta. Cruz, Laguna, admitting to
probate the last will and testament 3 with codicil 4 of the
late Brigido Alvarado.
On 5 November 1977, the 79-year old Brigido Alvarado
executed a notarial will entitled "Huling Habilin" wherein
he disinherited an illegitimate son (petitioner) and
expressly revoked a previously executed holographic will
at the time awaiting probate before Branch 4 of the
Regional Trial Court of sta. Cruz, Laguna.
As testified to by the three instrumental witnesses, the
notary public and by private respondent who were
present at the execution, the testator did not read the
final draft of the will himself. Instead, private respondent,
as the lawyer who drafted the eight-paged document,
read the same aloud in the presence of the testator, the
three instrumental witnesses and the notary public. The
latter four followed the reading with their own respective
copies previously furnished them.

was that the deceased was blind within the meaning of

the law at the time his "Huling Habilin" and the codicil
attached thereto was executed; that since the reading
required by Art. 808 of the Civil Code was admittedly not
complied with, probate of the deceased's last will and
codicil should have been denied.
On 11 April 1986, the Court of Appeals rendered the
decision under review with the following findings: that
Brigido Alvarado was not blind at the time his last will
and codicil were executed; that assuming his blindness,
the reading requirement of Art. 808 was substantially
complied with when both documents were read aloud to
the testator with each of the three instrumental
witnesses and the notary public following the reading
with their respective copies of the instruments. The
appellate court then concluded that although Art. 808
was not followed to the letter, there was substantial
compliance since its purpose of making known to the
testator the contents of the drafted will was served.
The issues now before us can be stated thus: Was
Brigido Alvarado blind for purpose of Art, 808 at the time
his "Huling Habilin" and its codicil were executed? If so,
was the double-reading requirement of said article
complied with?

Meanwhile, Brigido's holographic will was subsequently

admitted to probate on 9 December 1977. On the 29th
day of the same month, a codicil entitled "Kasulatan ng
Pagbabago sa Ilang Pagpapasiya na Nasasaad sa
Huling Habilin na may Petsa Nobiembre 5, 1977 ni
Brigido Alvarado" was executed changing some
dispositions in the notarial will to generate cash for the
testator's eye operation. Brigido was then suffering from
glaucoma. But the disinheritance and revocatory clauses
were unchanged. As in the case of the notarial will, the
testator did not personally read the final draft of the
codicil. Instead, it was private respondent who read it
aloud in his presence and in the presence of the three
instrumental witnesses (same as those of the notarial
will) and the notary public who followed the reading
using their own copies.

Regarding the first issue, there is no dispute on the

following facts: Brigido Alvarado was not totally blind at
the time the will and codicil were executed. However, his
vision on both eyes was only of "counting fingers at
three (3) feet" by reason of the glaucoma which he had
been suffering from for several years and even prior to
his first consultation with an eye specialist on
14 December 1977.

A petition for the probate of the notarial will and codicil

was filed upon the testator's death on 3 January 1979 by
private respondent as executor with the Court of First
Instance, now Regional Trial Court, of Siniloan,
Laguna. 5Petitioner, in turn, filed an Opposition on the
following grounds: that the will sought to be probated
was not executed and attested as required by law; that
the testator was insane or otherwise mentally
incapacitated to make a will at the time of its execution
due to senility and old age; that the will was executed
under duress, or influence of fear and threats; that it was
procured by undue and improper pressure and influence
on the part of the beneficiary who stands to get the lion's
share of the testator's estate; and lastly, that the
signature of the testator was procured by fraud or trick.

Petitioner contends that although his father was not

totally blind when the will and codicil were executed, he
can be so considered within the scope of the term as it is
used in Art. 808. To support his stand, petitioner
presented before the trial court a medical certificate
issued by Dr. Salvador R. Salceda, Director of the
Institute of Opthalmology (Philippine Eye Research
Institute), 6 the contents of which were interpreted in
layman's terms by Dr. Ruperto Roasa, whose expertise
was admitted by private respondent. 7 Dr. Roasa
explained that although the testator could visualize
fingers at three (3) feet, he could no longer read either
printed or handwritten matters as of 14 December 1977,
the day of his first consultation. 8

When the oppositor (petitioner) failed to substantiate the

grounds relied upon in the Opposition, a Probate Order
was issued on 27 June 1983 from which an appeal was
made to respondent court. The main thrust of the appeal

The point of dispute is whether the foregoing

circumstances would qualify Brigido as a "blind" testator
under Art. 808 which reads:
Art. 808. If the testator is blind, the will
shall be read to him twice; once, by one
of the subscribing witnesses, and again,
by the notary public before whom the
will is acknowledged.

On the other hand, the Court of Appeals, contrary to the

medical testimony, held that the testator could still read
on the day the will and the codicil were executed but
chose not to do so because of "poor eyesight." 9 Since

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the testator was still capable of reading at that time, the

court a quo concluded that Art. 808 need not be
complied with.

probate of the latter's will and codicil should have been

disallowed.

We agree with petitioner in this respect.

We sustain private respondent's stand and necessarily,

the petition must be denied.

Regardless of respondent's staunch contention that the

testator was still capable of reading at the time his will
and codicil were prepared, the fact remains and this was
testified to by his witnesses, that Brigido did not do so
because of his "poor," 10 "defective," 11 or
"blurred" 12 vision making it necessary for private
respondent to do the actual reading for him.

This Court has held in a number of occasions that

substantial compliance is acceptable where the purpose
of the law has been satisfied, the reason being that the
solemnities surrounding the execution of wills are
intended to protect the testator from all kinds of fraud
and trickery but are never intended to be so rigid and
inflexible as to destroy the testamentary privilege. 14

The following pronouncement in Garcia

vs. Vasquez 13 provides an insight into the scope of the
term "blindness" as used in Art. 808, to wit:

In the case at bar, private respondent read the testator's

will and codicil aloud in the presence of the testator, his
three instrumental witnesses, and the notary public. Prior
and subsequent thereto, the testator affirmed, upon
being asked, that the contents read corresponded with
his instructions. Only then did the signing and
acknowledgement take place. There is no evidence, and
petitioner does not so allege, that the contents of the will
and codicil were not sufficiently made known and
communicated to the testator. On the contrary, with
respect to the "Huling Habilin," the day of the execution
was not the first time that Brigido had affirmed the truth
and authenticity of the contents of the draft. The
uncontradicted testimony of Atty. Rino is that Brigido
Alvarado already acknowledged that the will was drafted
in accordance with his expressed wishes even prior to 5
November 1977 when Atty. Rino went to the testator's
residence precisely for the purpose of securing his
conformity to the draft. 15

The rationale behind the requirement of

reading the will to the testator if he
is blind or incapable of reading the will
himself (as when he is illiterate), is to
make the provisions thereof known to
him, so that he may be able to object if
they are not in accordance with his
wishes . . .
Clear from the foregoing is that Art. 808 applies not only
to blind testators but also to those who, for one reason
or another, are "incapable of reading the(ir) will(s)."
Since Brigido Alvarado was incapable of reading the final
drafts of his will and codicil on the separate occasions of
their execution due to his "poor," "defective," or "blurred"
vision, there can be no other course for us but to
conclude that Brigido Alvarado comes within the scope
of the term "blind" as it is used in Art. 808. Unless the
contents were read to him, he had no way of
ascertaining whether or not the lawyer who drafted the
will and codicil did so confortably with his instructions.
Hence, to consider his will as validly executed and
entitled to probate, it is essential that we ascertain
whether Art. 808 had been complied with.
Article 808 requires that in case of testators like Brigido
Alvarado, the will shall be read twice; once, by one of the
instrumental witnesses and, again, by the notary public
before whom the will was acknowledged. The purpose is
to make known to the incapacitated testator the contents
of the document before signing and to give him an
opportunity to object if anything is contrary to his
instructions.
That Art. 808 was not followed strictly is beyond cavil.
Instead of the notary public and an instrumental witness,
it was the lawyer (private respondent) who drafted the
eight-paged will and the five-paged codicil who read the
same aloud to the testator, and read them only once, not
twice as Art. 808 requires.
Private respondent however insists that there was
substantial compliance and that the single reading
suffices for purposes of the law. On the other hand,
petitioner maintains that the only valid compliance or
compliance to the letter and since it is admitted that
neither the notary public nor an instrumental witness
read the contents of the will and codicil to Brigido,

Moreover, it was not only Atty. Rino who read the

documents on
5 November and 29 December 1977. The notary public
and the three instrumental witnesses likewise read the
will and codicil, albeit silently. Afterwards, Atty. Nonia de
la Pena (the notary public) and Dr. Crescente O.
Evidente (one of the three instrumental witnesses and
the testator's physician) asked the testator whether the
contents of the document were of his own free will.
Brigido answered in the affirmative. 16 With four persons
following the reading word for word with their own
copies, it can be safely concluded that the testator was
reasonably assured that what was read to him (those
which he affirmed were in accordance with his
instructions), were the terms actually appearing on the
typewritten documents. This is especially true when we
consider the fact that the three instrumental witnesses
were persons known to the testator, one being his
physician (Dr. Evidente) and another (Potenciano C.
Ranieses) being known to him since childhood.
The spirit behind the law was served though the letter
was not. Although there should be strict compliance with
the substantial requirements of the law in order to insure
the authenticity of the will, the formal imperfections
should be brushed aside when they do not affect its
purpose and which, when taken into account, may only
defeat the testator's will. 17
As a final word to convince petitioner of the propriety of
the trial court's Probate Order and its affirmance by the

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Court of Appeals, we quote the following pronouncement

in Abangan v. Abangan, 18 to wit:
The object of the solemnities
surrounding the execution of wills is to
close the door against bad faith and
fraud, to avoid the substitution of wills
and testaments and to guaranty their
truth and authenticity. Therefore the
laws on the subject should be
interpreted in such a way as to attain
these primordial ends. But, on the other
hand, also one must not lose sight of the
fact that it is not the object of the law to
restrain and curtail the exercise of the
right to make a will. So when an
interpretation already given assures
such ends, any other interpretation
whatsoever, that adds nothing but
demands more requisites entirely
unnecessary, useless and frustrative of
the testator's will, must be
disregarded (emphasis supplied).
Brigido Alvarado had expressed his last wishes in clear
and unmistakable terms in his "Huling Habilin" and the
codicil attached thereto. We are unwilling to cast these
aside fro the mere reason that a legal requirement
intended for his protection was not followed strictly when
such compliance had been rendered unnecessary by the
fact that the purpose of the law, i.e., to make known to
the incapacitated testator the contents of the draft of his
will, had already been accomplished. To reiterate,
substantial compliance suffices where the purpose has
been served.
WHEREFORE, the petition is DENIED and the assailed
Decision of respondent Court of Appeals dated 11 April
1986 is AFFIRMED. Considering the length of time that
this case has remained pending, this decision is
immediately executory. Costs against petitioner.
SO ORDERED.
G.R. No. 103554 May 28, 1993
TEODORO CANEDA, LORENZA CANEDA, TERESA
CANEDA, JUAN CABALLERO, AUREA CABALLERO,
OSCAR LAROSA, HELEN CABALLERO, SANTOS
CABALLERO, PABLO CABALLERO, VICTOR RAGA,
MAURICIA RAGA, QUIRICA RAGA, RUPERTO
ABAPO, represented herein by his Attorney-in-Fact,
ARMSTICIA * ABAPO VELANO, and CONSESO
CANEDA, represented herein by his heirs, JESUS
CANEDA, NATIVIDAD CANEDA and ARTURO
CANEDA, petitioners,
vs.HON. COURT OF APPEALS and WILLIAM
CABRERA, as Special Administrator of the Estate of
Mateo Caballero, respondents.
Presented for resolution by this Court in the present
petition for review on certiorari is the issue of whether or
not the attestation clause contained in the last will and
testament of the late Mateo Caballero complies with the

requirements of Article 805, in relation to Article 809, of

the Civil Code.
The records show that on December 5, 1978, Mateo
Caballero, a widower without any children and already in
the twilight years of his life, executed a last will and
testament at his residence in Talisay, Cebu before three
attesting witnesses, namely, Cipriano Labuca, Gregorio
Cabando and Flaviano Toregosa. The said testator was
duly assisted by his lawyer, Atty. Emilio Lumontad, and a
notary public, Atty. Filoteo Manigos, in the preparation of
that last will. 1 It was declared therein, among other
things, that the testator was leaving by way of legacies
and devises his real and personal properties to
Presentacion Gaviola, Angel Abatayo, Rogelio Abatayo,
Isabelito Abatayo, Benoni G. Cabrera and Marcosa
Alcantara, all of whom do not appear to be related to the
testator. 2
Four months later, or on April 4, 1979, Mateo Caballero
himself filed a petition docketed as Special Proceeding
No. 3899-R before Branch II of the then Court of First
Instance of Cebu seeking the probate of his last will and
testament. The probate court set the petition for hearing
on August 20, 1979 but the same and subsequent
scheduled hearings were postponed for one reason to
another. On May 29, 1980, the testator passed away
before his petition could finally be heard by the probate
court. 3 On February 25, 1981, Benoni Cabrera, on of the
legatees named in the will, sough his appointment as
special administrator of the testator's estate, the
estimated value of which was P24,000.00, and he was
so appointed by the probate court in its order of March 6,
1981. 4
Thereafter, herein petitioners, claiming to be nephews
and nieces of the testator, instituted a second petition,
entitled "In the Matter of the Intestate Estate of Mateo
Caballero" and docketed as Special Proceeding No.
3965-R, before Branch IX of the aforesaid Court of First
Instance of Cebu. On October 18, 1982, herein
petitioners had their said petition intestate proceeding
consolidated with Special Proceeding No. 3899-R in
Branch II of the Court of First Instance of Cebu and
opposed thereat the probate of the Testator's will and the
appointment of a special administrator for his estate. 5
Benoni Cabrera died on February 8, 1982 hence the
probate court, now known as Branch XV of the Regional
Trial Court of Cebu, appointed William Cabrera as
special administrator on June 21, 1983. Thereafter, on
July 20, 1983, it issued an order for the return of the
records of Special Proceeding No. 3965-R to the
archives since the testate proceeding for the probate of
the will had to be heard and resolved first. On March 26,
1984 the case was reraffled and eventually assigned to
Branch XII of the Regional Trial Court of Cebu where it
remained until the conclusion of the probate
proceedings. 6
In the course of the hearing in Special Proceeding No.
3899-R, herein petitioners appeared as oppositors and
objected to the allowance of the testator's will on the
ground that on the alleged date of its execution, the

!21

testator was already in the poor state of health such that

he could not have possibly executed the same.
Petitioners likewise reiterated the issue as to the
genuineness of the signature of the testator therein. 7
On the other hand, one of the attesting witnesses,
Cipriano Labuca, and the notary public Atty. Filoteo
Manigos, testified that the testator executed the will in
question in their presence while he was of sound and
disposing mind and that, contrary to the assertions of the
oppositors, Mateo Caballero was in good health and was
not unduly influenced in any way in the execution of his
will. Labuca also testified that he and the other
witnesses attested and signed the will in the presence of
the testator and of each other. The other two attesting
witnesses were not presented in the probate hearing as
the had died by then. 8
On April 5, 1988, the probate court rendered a decision
declaring the will in question as the last will and
testament of the late Mateo Caballero, on the
ratiocination that:
. . . The self-serving testimony of the two
witnesses of the oppositors cannot
overcome the positive testimonies of
Atty. Filoteo Manigos and Cipriano
Labuca who clearly told the Court that
indeed Mateo Caballero executed the
Last Will and Testament now marked
Exhibit "C" on December 5, 1978.
Moreover, the fact that it was Mateo
Caballero who initiated the probate of
his Will during his lifetime when he
caused the filing of the original petition
now marked Exhibit "D" clearly
underscores the fact that this was
indeed his Last Will. At the start, counsel
for the oppositors manifested that he
would want the signature of Mateo
Caballero in Exhibit "C" examined by a
handwriting expert of the NBI but it
would seem that despite their avowal
and intention for the examination of this
signature of Mateo Caballero in Exhibit
"C", nothing came out of it because they
abandoned the idea and instead
presented Aurea Caballero and Helen
Caballero Campo as witnesses for the
oppositors.
All told, it is the finding of this Court that
Exhibit "C" is the Last Will and
Testament of Mateo Caballero and that
it was executed in accordance with all
the requisites of the law. 9
Undaunted by the said judgment of the probate court,
petitioners elevated the case in the Court of Appeals in
CA-G.R. CV No. 19669. They asserted therein that the
will in question is null and void for the reason that its
attestation clause is fatally defective since it fails to
specifically state that the instrumental witnesses to the
will witnessed the testator signing the will in their

presence and that they also signed the will and all the
pages thereof in the presence of the testator and of one
another.
On October 15, 1991, respondent court promulgated its
decision 10 affirming that of the trial court, and ruling that
the attestation clause in the last will of Mateo Caballero
substantially complies with Article 805 of the Civil Code,
thus:
The question therefore is whether the
attestation clause in question may be
considered as having substantialy
complied with the requirements of Art.
805 of the Civil Code. What appears in
the attestation clause which the
oppositors claim to be defective is "we
do certify that the testament was read
by him and the attestator, Mateo
Caballero, has published unto us the
foregoing will consisting of THREE
PAGES, including the acknowledgment,
each page numbered correlatively in
letters of the upper part of each page,
as his Last Will and Testament, and he
has signed the same and every page
thereof, on the spaces provided for his
signature and on the left hand margin in
the presence of the said testator and in
the presence of each and all of
us (emphasis supplied).
To our thinking, this is sufficient
compliance and no evidence need be
presented to indicate the meaning that
the said will was signed by the testator
and by them (the witnesses) in the
presence of all of them and of one
another. Or as the language of the law
would have it that the testator signed the
will "in the presence of the instrumental
witnesses, and that the latter witnessed
and signed the will and all the pages
thereof in the presence of the testator
and of one another." If not completely or
ideally perfect in accordance with the
wordings of Art. 805 but (sic) the phrase
as formulated is in substantial
compliance with the requirement of the
law." 11
Petitioners moved for the reconsideration of the said
ruling of respondent court, but the same was denied in
the latter's resolution of January 14, 1992, 12 hence this
appeal now before us. Petitioners assert that respondent
court has ruled upon said issue in a manner not in
accord with the law and settled jurisprudence on the
matter and are now questioning once more, on the same
ground as that raised before respondent court, the
validity of the attestation clause in the last will of Mateo
Caballero.
We find the present petition to be meritorious, as we
shall shortly hereafter, after some prefatory observations

!22

which we feel should be made in aid of the rationale for

our resolution of the controversy.

should be in writing and must have been executed in a

language or dialect known to the testator. 17

1. A will has been defined as a species of conveyance

whereby a person is permitted, with the formalities
prescribed by law, to control to a certain degree the
disposition of his estate after his death. 13 Under the Civil
Code, there are two kinds of wills which a testator may
execute. 14 the first kind is the ordinary or attested will,
the execution of which is governed by Articles 804 to 809
of the Code. Article 805 requires that:

However, in the case of an ordinary or attested will, its

attestation clause need not be written in a language or
dialect known to the testator since it does not form part
of the testamentary disposition. Furthermore, the
language used in the attestation clause likewise need
not even be known to the attesting witnesses. 18 The last
paragraph of Article 805 merely requires that, in such a
case, the attestation clause shall be interpreted to said
witnesses.

Art. 805. Every will, other than a

holographic will, must be subscribed at
the end thereof by the testator himself or
by the testator's name written by some
other person in his presence, and by his
express direction, and attested and
subscribed by three or more credible
witnesses in the presence of the testator
and of one another.
The testator or the person requested by
him to write his name and the
instrumental witnesses of the will, shall
also sign, as aforesaid, each and every
page thereof, except the last, on the left
margin, and all the pages shall be
numbered correlatively in letters placed
on the upper part of each page.
The attestation should state the number
of pages used upon which the will is
written, and the fact that the testator
signed the will and every page thereof,
or caused some other person to write
his name, under his express direction, in
the presence of the instrumental
witnesses, and that the latter witnessed
and signed the will and all the pages
thereof in the presence of the testator
and of one another.
If the attestation clause is in a language
not known to the witness, it shall be
interpreted to them.
In addition, the ordinary will must be acknowledged
before a notary public by a testator and the attesting
witness.15 hence it is likewise known as notarial will.
Where the attestator is deaf or deaf-mute, Article 807
requires that he must personally read the will, if able to
do so. Otherwise, he should designate two persons who
would read the will and communicate its contents to him
in a practicable manner. On the other hand, if the
testator is blind, the will should be read to him twice;
once, by anyone of the witnesses thereto, and then
again, by the notary public before whom it is
acknowledged. 16
The other kind of will is the holographic will, which Article
810 defines as one that is entirely written, dated, and
signed by the testator himself. This kind of will, unlike the
ordinary type, requires no attestation by witnesses. A
common requirement in both kinds of will is that they

An attestation clause refers to that part of an ordinary

will whereby the attesting witnesses certify that the
instrument has been executed before them and to the
manner of the execution the same. 19 It is a separate
memorandum or record of the facts surrounding the
conduct of execution and once signed by the witnesses,
it gives affirmation to the fact that compliance with the
essential formalities required by law has been
observed. 20 It is made for the purpose of preserving in a
permanent form a record of the facts that attended the
execution of a particular will, so that in case of failure of
the memory of the attesting witnesses, or other casualty,
such facts may still be proved. 21
Under the third paragraph of Article 805, such a clause,
the complete lack of which would result in the invalidity
of the will, 22 should state (1) the number of the pages
used upon which the will is written; (2) that the testator
signed, or expressly caused another to sign, the will and
every page thereof in the presence of the attesting
witnesses; and (3) that the attesting witnesses witnessed
the signing by the testator of the will and all its
pages, and that said witnesses also signed the will and
every page thereof in the presence of the testator and of
one another.
The purpose of the law in requiring the clause to state
the number of pages on which the will is written is to
safeguard against possible interpolation or omission of
one or some of its pages and to prevent any increase or
decrease in the pages; 23 whereas the subscription of the
signature of the testator and the attesting witnesses is
made for the purpose of authentication and identification,
and thus indicates that the will is the very same
instrument executed by the testator and attested to by
the witnesses. 24
Further, by attesting and subscribing to the will, the
witnesses thereby declare the due execution of the will
as embodied in the attestation clause. 25 The attestation
clause, therefore, provide strong legal guaranties for the
due execution of a will and to insure the authenticity
thereof. 26 As it appertains only to the witnesses and not
to the testator, it need be signed only by them. 27 Where
it is left unsigned, it would result in the invalidation of the
will as it would be possible and easy to add the clause
on a subsequent occasion in the absence of the testator
and its witnesses. 28
In its report, the Code Commission commented on the
reasons of the law for requiring the formalities to be

!23

followed in the execution of wills, in the following

manner:
The underlying and fundamental
objectives permeating the provisions on
the law on wills in this Project consists in
the liberalization of the manner of their
execution with the end in view of giving
the testator more freedom in expressing
his last wishes, but with sufficient
safeguards and restrictions to prevent
the commission of fraud and the
exercise of undue and improper
pressure and influence upon the
testator.
This objective is in accord with the
modern tendency with respect to the
formalities in the execution of wills. . . . 29
2. An examination of the last will and testament of Mateo
Caballero shows that it is comprised of three sheets all
of which have been numbered correlatively, with the left
margin of each page thereof bearing the respective
signatures of the testator and the three attesting
witnesses. The part of the will containing the
testamentary dispositions is expressed in the CebuanoVisayan dialect and is signed at the foot thereof by the
testator. The attestation clause in question, on the other
hand, is recited in the English language and is likewise
signed at the end thereof by the three attesting
witnesses hereto. 30 Since it is the proverbial bone of
contention, we reproduce it again for facility of reference:
We, the undersigned attesting
Witnesses, whose Residences and
postal addresses appear on the
Opposite of our respective names, we
do hereby certify that the Testament was
read by him and the testator, MATEO
CABALLERO; has published unto us the
foregoing Will consisting of THREE
PAGES, including the Acknowledgment,
each page numbered correlatively in the
letters on the upper part of each page,
as his Last Will and Testament and he
has the same and every page thereof,
on the spaces provided for his signature
and on the left hand margin, in the
presence of the said testator and in the
presence of each and all of us.
It will be noted that Article 805 requires that the witness
should both attest and subscribe to the will in the
presence of the testator and of one another. "Attestation"
and "subscription" differ in meaning. Attestation is the act
of senses, while subscription is the act of the hand. The
former is mental, the latter mechanical, and to attest a
will is to know that it was published as such, and to
certify the facts required to constitute an actual and legal
publication; but to subscribe a paper published as a will
is only to write on the same paper the names of the
witnesses, for the sole purpose of identification. 31

In Taboada vs. Rizal, 32 we clarified that attestation

consists in witnessing the testator's execution of the will
in order to see and take note mentally that those things
are done which the statute requires for the execution of
a will and that the signature of the testator exists as a
fact. On the other hand, subscription is the signing of the
witnesses' names upon the same paper for the purpose
of identification of such paper as the will which was
executed by the testator. As it involves a mental act,
there would be no means, therefore, of ascertaining by a
physical examination of the will whether the witnesses
had indeed signed in the presence of the testator and of
each other unless this is substantially expressed in the
attestation.
It is contended by petitioners that the aforequoted
attestation clause, in contravention of the express
requirements of the third paragraph of Article 805 of the
Civil Code for attestation clauses, fails to specifically
state the fact that the attesting witnesses the testator
sign the will and all its pages in their presence and that
they, the witnesses, likewise signed the will and every
page thereof in the presence of the testator and of each
other. We agree.
What is fairly apparent upon a careful reading of the
attestation clause herein assailed is the fact that while it
recites that the testator indeed signed the will and all its
pages in the presence of the three attesting witnesses
and states as well the number of pages that were used,
the same does not expressly state therein the
circumstance that said witnesses subscribed their
respective signatures to the will in the presence of the
testator and of each other.
The phrase "and he has signed the same and every
page thereof, on the spaces provided for his signature
and on the left hand margin," obviously refers to the
testator and not the instrumental witnesses as it is
immediately preceded by the words "as his Last Will and
Testament." On the other hand, although the words "in
the presence of the testator and in the presence of each
and all of us" may, at first blush, appear to likewise
signify and refer to the witnesses, it must, however, be
interpreted as referring only to the testator signing in the
presence of the witnesses since said phrase
immediately follows the words "he has signed the same
and every page thereof, on the spaces provided
for his signature and on the left hand margin." What is
then clearly lacking, in the final logical analysis , is the
statement that the witnesses signed the will and every
page thereof in the presence of the testator and of one
another.
It is our considered view that the absence of that
statement required by law is a fatal defect or
imperfection which must necessarily result in the
disallowance of the will that is here sought to be
admitted to probate. Petitioners are correct in pointing
out that the aforestated defect in the attestation clause
obviously cannot be characterized as merely involving
the form of the will or the language used therein which
would warrant the application of the substantial

!24

compliance rule, as contemplated in the pertinent

provision thereon in the Civil Code, to wit:
Art. 809. In the absence of bad faith,
forgery, or fraud, or undue and improper
pressure and influence, defects and
imperfections in the form of attestation
or in the language used therein shall not
render the will invalid if it is not proved
that the will was in fact executed and
attested in substantial compliance with
all the requirements of article
805" (Emphasis supplied.)
While it may be true that the attestation clause is indeed
subscribed at the end thereof and at the left margin of
each page by the three attesting witnesses, it certainly
cannot be conclusively inferred therefrom that the said
witness affixed their respective signatures in the
presence of the testator and of each other since, as
petitioners correctly observed, the presence of said
signatures only establishes the fact that it was indeed
signed, but it does not prove that the attesting witnesses
did subscribe to the will in the presence of the testator
and of each other. The execution of a will is supposed to
be one act so that where the testator and the witnesses
sign on various days or occasions and in various
combinations, the will cannot be stamped with the
imprimatur of effectivity. 33
We believe that the further comment of former Justice
J.B.L. Reyes 34 regarding Article 809, wherein he urged
caution in the application of the substantial compliance
rule therein, is correct and should be applied in the case
under consideration, as well as to future cases with
similar questions:
. . . The rule must be limited to
disregarding those defects that can be
supplied by an examination of the will
itself: whether all the pages are
consecutively numbered; whether the
signatures appear in each and every
page; whether the subscribing
witnesses are three or the will was
notarized. All theses are facts that the
will itself can reveal, and defects or even
omissions concerning them in the
attestation clause can be safely
disregarded. But the total number of
pages, and whether all persons required
to sign did so in the presence of each
other must substantially appear in the
attestation clause, being the only check
against perjury in the probate
proceedings. (Emphasis ours.)
3. We stress once more that under Article 809, the
defects and imperfections must only be with respect to
the form of the attestation or the language employed
therein. Such defects or imperfections would not render
a will invalid should it be proved that the will was really
executed and attested in compliance with Article 805. In
this regard, however, the manner of proving the due

execution and attestation has been held to be limited to

merely an examination of the will itself without resorting
to evidence aliunde, whether oral or written.
The foregoing considerations do not apply where the
attestation clause totally omits the fact that the attesting
witnesses signed each and every page of the will in the
presence of the testator and of each other. 35 In such a
situation, the defect is not only in the form or language of
the attestation clause but the total absence of a specific
element required by Article 805 to be specifically stated
in the attestation clause of a will. That is precisely the
defect complained of in the present case since there is
no plausible way by which we can read into the
questioned attestation clause statement, or an
implication thereof, that the attesting witness did actually
bear witness to the signing by the testator of the will and
all of its pages and that said instrumental witnesses also
signed the will and every page thereof in the presence of
the testator and of one another.
Furthermore, the rule on substantial compliance in
Article 809 cannot be revoked or relied on by
respondents since it presupposes that the defects in the
attestation clause can be cured or supplied by the text of
the will or a consideration of matters apparent therefrom
which would provide the data not expressed in the
attestation clause or from which it may necessarily be
gleaned or clearly inferred that the acts not stated in the
omitted textual requirements were actually complied
within the execution of the will. In other words, defects
must be remedied by intrinsic evidence supplied by the
will itself.
In the case at bar, contrarily, proof of the acts required to
have been performed by the attesting witnesses can be
supplied by only extrinsic evidence thereof, since an
overall appreciation of the contents of the will yields no
basis whatsoever from with such facts may be plausibly
deduced. What private respondent insists on are the
testimonies of his witnesses alleging that they saw the
compliance with such requirements by the instrumental
witnesses, oblivious of the fact that he is thereby
resorting to extrinsic evidence to prove the same and
would accordingly be doing by the indirection what in law
he cannot do directly.
4. Prior to the advent of the Civil Code on August 30,
1950, there was a divergence of views as to which
manner of interpretation should be followed in resolving
issues centering on compliance with the legal formalities
required in the execution of wills. The formal
requirements were at that time embodied primarily in
Section 618 of Act No. 190, the Code of Civil Procedure.
Said section was later amended by Act No. 2645, but the
provisions respecting said formalities found in Act. No.
190 and the amendment thereto were practically
reproduced and adopted in the Civil Code.
One view advance the liberal or substantial compliance
rule. This was first laid down in the case of Abangan vs.
Abangan, 36 where it was held that the object of the
solemnities surrounding the execution of wills is to close
the door against bad faith and fraud, to avoid substitution

!25

of wills and testaments and to guarantee their truth and

authenticity. Therefore, the laws on this subject should
be interpreted in such a way as to attain these primordial
ends. Nonetheless, it was also emphasized that one
must not lose sight of the fact that it is not the object of
the law to restrain and curtail the exercise of the right to
make a will, hence when an interpretation already given
assures such ends, any other interpretation whatsoever
that adds nothing but demands more requisites entirely
unnecessary, useless and frustrative of the testator's last
will, must be disregarded. The subsequent cases
of Avera vs. Garcia, 37 Aldaba vs. Roque, 38 Unson vs.
Abella, 39 Pecson vs. Coronel, 40 Fernandez vs. Vergel
de Dios, et al., 41 and Nayve vs. Mojal, et al. 42 all
adhered to this position.
The other view which advocated the rule that statutes
which prescribe the formalities that should be observed
in the execution of wills are mandatory in nature and are
to be strictly construed was followed in the subsequent
cases of In the Matter of the Estate of Saguinsin, 43 In re
Will of Andrada, 44 Uy Coque vs. Sioca, 45 In re Estate of
Neumark, 46 and Sano vs. Quintana. 47
al., 48

Gumban vs. Gorecho, et

provided the Court with
the occasion to clarify the seemingly conflicting
decisions in the aforementioned cases. In said case
of Gumban, the attestation clause had failed to state that
the witnesses signed the will and each and every page
thereof on the left margin in the presence of the testator.
The will in question was disallowed, with these reasons
therefor:
In support of their argument on the
assignment of error above-mentioned,
appellants rely on a series of cases of
this court beginning with (I)n the Matter
of the (E)state of Saguinsin ([1920], 41
Phil., 875), continuing with In re Will of
Andrada [1921], 42 Phil., 180), Uy
Coque vs. Navas L. Sioca [1922], 43
Phil., 405), and In re Estate of Neumark
([1923], 46 Phil., 841), and ending
with Sano vs. Quintana ([1925], 48 Phil.,
506). Appellee counters with the citation
of a series of cases beginning
with Abangan vs. Abangan ([1919], 40
Phil., 476), continuing through Aldaba
vs. Roque ([1922], 43 Phil., 378),
and Fernandez vs. Vergel de
Dios ([1924], 46 Phil., 922), and
culminating in Nayve vs. Mojal and
Aguilar ([1924], 47 Phil., 152). In its last
analysis, our task is to contrast and, if
possible, conciliate the last two
decisions cited by opposing counsel,
namely, those of Sano vs.
Quintana,supra, and Nayve vs. Mojal
and Aguilar, supra.
In the case of Sano vs. Quintana, supra,
it was decided that an attestation clause
which does not recite that the witnesses
signed the will and each and every page

thereof on the left margin in the

presence of the testator is defective,
and such a defect annuls the will. The
case of Uy Coque vs. Sioca, supra, was
cited, but the case of Nayve vs. Mojal
and Aguilar, supra, was not mentioned.
In contrast, is the decision in Nayve vs.
Mojal and Aguilar, supra, wherein it was
held that the attestation clause must
estate the fact that the testator and the
witnesses reciprocally saw the signing
of the will, for such an act cannot be
proved by the mere exhibition of the will,
if it is not stated therein. It was also held
that the fact that the testator and the
witnesses signed each and every page
of the will can be proved also by the
mere examination of the signatures
appearing on the document itself, and
the omission to state such evident facts
does not invalidate the will.
It is a habit of courts to reaffirm or
distinguish previous cases; seldom do
they admit inconsistency in doctrine. Yet
here, unless aided impossible to
reconcile the Mojal and Quintana
decisions. They are fundamentally at
variance. If we rely on one, we affirm. If
we rely on the other, we reverse.
In resolving this puzzling question of
authority, three outstanding points may
be mentioned. In the first place, the
Mojal, decision was concurred in by only
four members of the court, less than a
majority, with two strong dissenting
opinions; the Quintana decision was
concurred in by seven members of the
court, a clear majority, with one formal
dissent. In the second place, the Mojal
decision was promulgated in December,
1924, while the Quintana decision was
promulgated in December, 1925; the
Quintana decision was thus subsequent
in point of time. And in the third place,
the Quintana decision is believed more
nearly to conform to the applicable
provisions of the law.
The right to dispose of property by will is
governed entirely by statute. The law of
the case is here found in section 61 of
the Code of Civil Procedure as
amended by Act No. 2645, and in
section 634 of the same Code, as
unamended. It is in part provided in
section 61, as amended that
"No will . . .shall be valid . . . unless . . .."
It is further provided in the same section
that "The attestation shallstate the
number of sheets or pages used, upon
which the will is written, and the fact that

!26

the testator signed the will and every

page thereof, or caused some other
person to write his name, under his
express direction, in the presence of
three witnesses, and the latter
witnessed and signed the will and all
pages thereof in the presence of the
testator and of each other." Codal
section 634 provides that "The
will shall be disallowed in either of the
following case: 1. If not executed
and attested as in this Act provided."
The law not alone carefully makes use
of the imperative, but cautiously goes
further and makes use of the negative,
to enforce legislative intention. It is not
within the province of the courts to
disregard the legislative purpose so
emphatically and clearly expressed.
We adopt and reaffirm the decision in
the case of Sano vs. Quintana, supra,
and, to the extent necessary, modify the
decision in the case of Nayve vs. Mojal
and Aguilar, supra. (Emphases in the
original text).
But after the Gumban clarificatory pronouncement, there
were decisions of the Court that once more appeared to
revive the seeming diversity of views that was earlier
threshed out therein. The cases of Quinto vs.
Morata, 49Rodriguez vs. Alcala, 50 Enchevarria vs.
Sarmiento, 51 and Testate Estate of Toray 52 went the
way of the ruling as restated in Gumban. But De Gala
vs. Gonzales, et al., 53 Rey vs. Cartagena, 54 De Ticson
vs. De Gorostiza, 55 Sebastian vs.
Panganiban, 56 Rodriguez vs. Yap, 57 Grey vs.
Fabia, 58 Leynez vs. Leynez, 59 Martir vs. Martir, 60 Alcala
vs. De Villa, 61 Sabado vs.
Fernandez, 62 Mendoza vs. Pilapil, 63 and Lopez vs.
Liboro, 64 veered away from the strict interpretation rule
and established a trend toward an application of the
liberal view.
The Code Commission, cognizant of such a conflicting
welter of views and of the undeniable inclination towards
a liberal construction, recommended the codification of
the substantial compliance rule, as it believed this rule to
be in accord with the modern tendency to give a liberal
approach to the interpretation of wills. Said rule thus
became what is now Article 809 of the Civil Code, with
this explanation of the Code Commission:
The present law provides for only one
form of executing a will, and that is, in
accordance with the formalities
prescribed by Section 618 of the Code
of Civil Procedure as amended by Act
No. 2645. The Supreme Court of the
Philippines had previously upheld the
strict compliance with the legal
formalities and had even said that the
provisions of Section 618 of the Code of
Civil Procedure, as amended regarding

the contents of the attestation clause

were mandatory, and non-compliance
therewith invalidated the will (Uy Coque
vs. Sioca, 43 Phil. 405). These decisions
necessarily restrained the freedom of
the testator in disposing of his property.
However, in recent years the Supreme
Court changed its attitude and has
become more liberal in the interpretation
of the formalities in the execution of
wills. This liberal view is enunciated in
the cases ofRodriguez vs. Yap, G.R. No.
45924, May 18, 1939; Leynez vs.
Leynez, G.R. No. 46097, October 18,
1939; Martir vs. Martir, G.R. No. 46995,
June 21, 1940; and Alcala vs. Villa, G.R.
No. 47351, April 18, 1941.
In the above mentioned decisions of our
Supreme Court, it has practically gone
back to the original provisions of Section
618 of the Code of Civil Procedure
before its amendment by Act No. 2645
in the year 1916. To turn this attitude
into a legislative declaration and to
attain the main objective of the
proposed Code in the liberalization of
the manner of executing wills, article
829 of the Project is recommended,
which reads:
"Art. 829. In the
absence of bad faith,
forgery, or fraud, or
undue and improper
pressure and influence,
defects and
imperfections in the
form of attestation or in
the language used
therein shall not render
the will invalid if it is
proved that the will was
in fact executed and
attested in substantial
compliance with all the
requirements of article
829."65
The so-called liberal rule, the Court said in Gil vs.
Murciano, 66 "does not offer any puzzle or difficulty, nor
does it open the door to serious consequences. The
later decisions do tell us when and where to stop; they
draw the dividing line with precision. They do not allow
evidence aliunde to fill a void in any part of the document
or supply missing details that should appear in the will
itself. They only permit a probe into the will, an
exploration into its confines, to ascertain its meaning or
to determine the existence or absence of the requisite
formalities of law. This clear, sharp limitation eliminates
uncertainty and ought to banish any fear of dire results."

!27

It may thus be stated that the rule, as it now stands, is

that omissions which can be supplied by an examination
of the will itself, without the need of resorting to extrinsic
evidence, will not be fatal and, correspondingly, would
not obstruct the allowance to probate of the will being
assailed. However, those omissions which cannot be
supplied except by evidence aliunde would result in the
invalidation of the attestation clause and ultimately, of
the will itself. 67
WHEREFORE, the petition is hereby GRANTED and the
impugned decision of respondent court is hereby
REVERSED and SET ASIDE. The court a quo is
accordingly directed to forthwith DISMISS its Special
Proceeding No. 3899-R (Petition for the Probate of the
Last Will and Testament of Mateo Caballero) and to
REVIVE Special Proceeding No. 3965-R (In the matter
of the Intestate Estate of Mateo Caballero) as an active
case and thereafter duly proceed with the settlement of
the estate of the said decedent.

Wherefore, the appealed decision is reversed and the

probate of the will in question denied. So ordered with
costs against the petitioner and appellee.
G.R. No. L-36033 November 5, 1982
IN THE MATTER OF THE PETITION FOR THE
PROBATE OF THE WILL OF DOROTEA PEREZ,
(deceased): APOLONIO TABOADA, petitioner,
vs.HON. AVELINO S. ROSAL, as Judge of Court of
First Instance of Southern Leyte, (Branch III,
Maasin),respondent.
This is a petition for review of the orders issued by the
Court of First Instance of Southern Leyte, Branch III, in
Special Proceedings No. R-1713, entitled "In the Matter
of the Petition for Probate of the Will of Dorotea Perez,
Deceased; Apolonio Taboada, Petitioner", which denied
the probate of the will, the motion for reconsideration
and the motion for appointment of a special
administrator.

This is an appeal interposed by the oppositors from a

decision of the Court of First Instance of Samar,
admitting to probate the will allegedly executed by
Vicente Cagro who died in Laoangan, Pambujan, Samar,
on February 14, 1949.

In the petition for probate filed with the respondent court,

the petitioner attached the alleged last will and testament
of the late Dorotea Perez. Written in the CebuanoVisayan dialect, the will consists of two pages. The first
page contains the entire testamentary dispositions and is
signed at the end or bottom of the page by the testatrix
alone and at the left hand margin by the three (3)
instrumental witnesses. The second page which
contains the attestation clause and the acknowledgment
is signed at the end of the attestation clause by the three
(3) attesting witnesses and at the left hand margin by the
testatrix.

The main objection insisted upon by the appellant in that

the will is fatally defective, because its attestation clause
is not signed by the attesting witnesses. There is no
question that the signatures of the three witnesses to the
will do not appear at the bottom of the attestation clause,
although the page containing the same is signed by the
witnesses on the left-hand margin.

Since no opposition was filed after the petitioner's

compliance with the requirement of publication, the trial
court commissioned the branch clerk of court to receive
the petitioner's evidence. Accordingly, the petitioner
submitted his evidence and presented Vicente Timkang,
one of the subscribing witnesses to the will, who testified
on its genuineness and due execution.

We are of the opinion that the position taken by the

appellant is correct. The attestation clause is 'a
memorandum of the facts attending the execution of the
will' required by law to be made by the attesting
witnesses, and it must necessarily bear their signatures.
An unsigned attestation clause cannot be considered as
an act of the witnesses, since the omission of their
signatures at the bottom thereof negatives their
participation.

The trial court, thru then Presiding Judge Ramon C.

Pamatian issued the questioned order denying the
probate of the will of Dorotea Perez for want of a
formality in its execution. In the same order, the
petitioner was also required to submit the names of the
intestate heirs with their corresponding addresses so
that they could be properly notified and could intervene
in the summary settlement of the estate.

SO ORDERED.
G.R. No. L-5826

April 29, 1953

Testate estate of the late VICENTE CAGRO. JESUSA

CAGRO, petitioner-appellee,
vs.PELAGIO CAGRO, ET AL., oppositors-appellants.

The petitioner and appellee contends that signatures of

the three witnesses on the left-hand margin conform
substantially to the law and may be deemed as their
signatures to the attestation clause. This is untenable,
because said signatures are in compliance with the legal
mandate that the will be signed on the left-hand margin
of all its pages. If an attestation clause not signed by the
three witnesses at the bottom thereof, be admitted as
sufficient, it would be easy to add such clause to a will
on a subsequent occasion and in the absence of the
testator and any or all of the witnesses.

Instead of complying with the order of the trial court, the

petitioner filed a manifestation and/or motion, ex
partepraying for a thirty-day period within which to
deliberate on any step to be taken as a result of the
disallowance of the will. He also asked that the ten-day
period required by the court to submit the names of
intestate heirs with their addresses be held in abeyance.
The petitioner filed a motion for reconsideration of the
order denying the probate of the will. However, the
motion together with the previous manifestation and/or
motion could not be acted upon by the Honorable
Ramon C. Pamatian due to his transfer to his new
station at Pasig, Rizal. The said motions or incidents

!28

were still pending resolution when respondent Judge

Avelino S. Rosal assumed the position of presiding
judge of the respondent court.
Meanwhile, the petitioner filed a motion for the
appointment of special administrator.
Subsequently, the new Judge denied the motion for
reconsideration as well as the manifestation and/or
motion filed ex parte. In the same order of denial, the
motion for the appointment of special administrator was
likewise denied because of the petitioner's failure to
comply with the order requiring him to submit the names
of' the intestate heirs and their addresses.
The petitioner decided to file the present petition.
For the validity of a formal notarial will, does Article 805
of the Civil Code require that the testatrix and all the
three instrumental and attesting witnesses sign at the
end of the will and in the presence of the testatrix and of
one another?
Article 805 of the Civil Code provides:
Every will, other than a holographic will,
must be subscribed at the end thereof
by the testator himself or by the
testator's name written by some other
person in his presence, and by his
express direction, and attested and
subscribed by three or more credible
witnesses in the presence of the testator
and of one another.
The testator or the person requested by
him to write his name and the
instrumental witnesses of the will, shall
also sign, as aforesaid, each and every
page thereof, except the last, on the left
margin, and all the pages shall be
numbered correlatively in letters placed
on the upper part of each page.
The attestation shall state the number of
pages used upon which the will is
written, and the fact that the testator
signed the will and every page thereof,
or caused some other person to write
his name, under his express direction, in
the presence of the instrumental
witnesses, and that the lacier witnesses
and signed the will and the pages
thereof in the presence of the testator
and of one another.
If the attestation clause is in a language
not known to the witnesses, it shall be
interpreted to the witnesses, it shall be
interpreted to them.
The respondent Judge interprets the above-quoted
provision of law to require that, for a notarial will to be
valid, it is not enough that only the testatrix signs at the
"end" but an the three subscribing witnesses must also
sign at the same place or at the end, in the presence of
the testatrix and of one another because the attesting

witnesses to a will attest not merely the will itself but also
the signature of the testator. It is not sufficient
compliance to sign the page, where the end of the will is
found, at the left hand margin of that page.
On the other hand, the petitioner maintains that Article
805 of the Civil Code does not make it a condition
precedent or a matter of absolute necessity for the
extrinsic validity of the wig that the signatures of the
subscribing witnesses should be specifically located at
the end of the wig after the signature of the testatrix. He
contends that it would be absurd that the legislature
intended to place so heavy an import on the space or
particular location where the signatures are to be found
as long as this space or particular location wherein the
signatures are found is consistent with good faith and
the honest frailties of human nature.
We find the petition meritorious.
Undoubtedly, under Article 805 of the Civil Code, the will
must be subscribed or signed at its end by the testator
himself or by the testator's name written by another
person in his presence, and by his express direction,
and attested and subscribed by three or more credible
witnesses in the presence of the testator and of one
another.
It must be noted that the law uses the
terms attested and subscribed Attestation consists in
witnessing the testator's execution of the will in order to
see and take note mentally that those things are, done
which the statute requires for the execution of a will and
that the signature of the testator exists as a fact. On the
other hand, subscription is the signing of the witnesses'
names upon the same paper for the purpose of
Identification of such paper as the will which was
executed by the testator. (Ragsdale v. Hill, 269 SW 2d
911).
Insofar as the requirement of subscription is concerned,
it is our considered view that the will in this case was
subscribed in a manner which fully satisfies the purpose
of Identification.
The signatures of the instrumental witnesses on the left
margin of the first page of the will attested not only to the
genuineness of the signature of the testatrix but also the
due execution of the will as embodied in the attestation
clause.
While perfection in the drafting of a will may be
desirable, unsubstantial departure from the usual forms
should be ignored, especially where the authenticity of
the will is not assailed. (Gonzales v. Gonzales, 90 Phil.
444, 449).
The law is to be liberally construed, "the underlying and
fundamental objective permeating the provisions on the
law on wills in this project consists in the liberalization of
the manner of their execution with the end in view of
giving the testator more freedom in expressing his last
wishes but with sufficient safeguards and restrictions to
prevent the commission of fraud and the exercise of
undue and improper pressure and influence upon the
testator. This objective is in accord with the modern

!29

tendency in respect to the formalities in the execution of

a will" (Report of the Code commission, p. 103).

or examination of the will itself. But here

the situation is different. While the
attestation clause does not state the
number of sheets or pages upon which
the will is written, however, the last part
of the body of the will contains a
statement that it is composed of eight
pages, which circumstance in our
opinion takes this case out of the rigid
rule of construction and places it within
the realm of similar cases where a
broad and more liberal view has been
adopted to prevent the will of the
testator from being defeated by purely
technical considerations.

Parenthetically, Judge Ramon C. Pamatian stated in his

questioned order that were not for the defect in the place
of signatures of the witnesses, he would have found the
testimony sufficient to establish the validity of the will.
The objects of attestation and of subscription were fully
met and satisfied in the present case when the
instrumental witnesses signed at the left margin of the
sole page which contains all the testamentary
dispositions, especially so when the will was properly
Identified by subscribing witness Vicente Timkang to be
the same will executed by the testatrix. There was no
question of fraud or substitution behind the questioned
order.
We have examined the will in question and noticed that
the attestation clause failed to state the number of pages
used in writing the will. This would have been a fatal
defect were it not for the fact that, in this case, it is
discernible from the entire wig that it is really and
actually composed of only two pages duly signed by the
testatrix and her instrumental witnesses. As earlier
stated, the first page which contains the entirety of the
testamentary dispositions is signed by the testatrix at the
end or at the bottom while the instrumental witnesses
signed at the left margin. The other page which is
marked as "Pagina dos" comprises the attestation
clause and the acknowledgment. The acknowledgment
itself states that "This Last Will and Testament consists
of two pages including this page".

Icasiano v. Icasiano (11 SCRA 422, 429) has the

following ruling which applies a similar liberal approach:
... Impossibility of substitution of this
page is assured not only (sic) the fact
that the testatrix and two other
witnesses did sign the defective page,
but also by its bearing the coincident
imprint of the seal of the notary public
before whom the testament was ratified
by testatrix and all three witnesses. The
law should not be so strictly and literally
interpreted as to penalize the testatrix
on account of the inadvertence of a
single witness over whose conduct she
had no control where the purpose of the
law to guarantee the Identity of the
testament and its component pages is
sufficiently attained, no intentional or
deliberate deviation existed, and the
evidence on record attests to the fun
observance of the statutory requisites.
Otherwise, as stated in Vda. de Gil. Vs.
Murciano, 49 Off. Gaz. 1459, at 1479
(decision on reconsideration) 'witnesses
may sabotage the will by muddling or
bungling it or the attestation clause.

In Singson v. Florentino, et al. (92 Phil. 161, 164), this

Court made the following observations with respect to
the purpose of the requirement that the attestation
clause must state the number of pages used:
The law referred to is article 618 of the
Code of Civil Procedure, as amended by
Act No. 2645, which requires that the
attestation clause shall state the number
of pages or sheets upon which the win
is written, which requirement has been
held to be mandatory as an effective
safeguard against the possibility of
interpolation or omission of some of the
pages of the will to the prejudice of the
heirs to whom the property is intended
to be bequeathed (In re will of Andrada,
42 Phil., 180; Uy Coque vs. Navas L.
Sioca, 43 Phil. 405; Gumban vs.
Gorecho, 50 Phil. 30; Quinto vs. Morata,
54 Phil. 481; Echevarria vs. Sarmiento,
66 Phil. 611). The ratio decidendi of
these cases seems to be that the
attestation clause must contain a
statement of the number of sheets or
pages composing the will and that if this
is missing or is omitted, it will have the
effect of invalidating the will if the
deficiency cannot be supplied, not by
evidence aliunde, but by a consideration

WHEREFORE, the present petition is hereby granted.

The orders of the respondent court which denied the
probate of tile will, the motion for reconsideration of the
denial of probate, and the motion for appointment of a
special administrator are set aside. The respondent
court is ordered to allow the probate of the wig and to
conduct further proceedings in accordance with this
decision. No pronouncement on costs.
SO ORDERED.
G.R. No. L-27440 December 24, 1927
JOSE VILLAFLOR, petitioner-appellant,
vs.DEOGRACIAS TOBIAS, ET AL., oppositorsappellees.
This is an appeal from the judgment denying a petition
for the probate of a will alleged to have been executed
by one Gregoria Villaflor who died in the municipality of
Santo Domingo, Province of Ilocos Sur on October 7,

!30

1925. The petition was presented by Jose Villaflor, one

of the testamentary heirs of the deceased. Pilar Villaflor,
Deogracias Tobias, and several others whose names do
not appear in the record, contested the will upon the
following grounds: (1) That it was not signed by the
alleged testatrix personally though she was able to do so
at the time of the execution of the document; (2) that
said testatrix did not authorize any one to sign the
alleged will in her name; (3) that both before and after
the execution of the document, Gregoria Villaflor signed
various documents by thumb marks; (4) that although it
is true that the testatrix requested that the will be
prepared, she nevertheless refused to sign it because it
was contrary to her desires and instructions; (5) that
subsequent to the date upon which the alleged will was
executed, Gregoria Villaflor on several occasions stated
that it was not her testament; (6) that the alleged will was
not executed or signed in conformity of the law.
The grounds upon which the court below based the
rejection of the document are thus stated in this
decision.
After a careful examination of all the evidence of
record, this court is of opinion that it has been
sufficiently proved that Claro Lazo, the person
who is alleged to have written the name of the
testatrix in her behalf and by her express
direction, subscribed the name and surname of
the testatrix and signed the will in question
without Rufino D. Soliven, one of the attesting
witnesses, signed it; and lastly, when Rufino D.
Soliven signed the will the witness Vicente
Tacderas was not present.
Besides the foregoing defect, which the court
believes fatal, it also finds that the will in
question, marked Exhibit B of the applicant, was
typewritten on eight catalan sheets, one
separated from the others; that the attestation
clause was written on a separate sheet, marked
page 9, when said clause could not have been
written totally or partially on page 8, since onehalf of this latter page is blank.lawphi1.net
In the opinion of the court, all this circumstances
tend to make the authenticity and due execution
of the will in question very doubtful and
suspicious. And if the testimony of the witnesses
for the opposition should be taken into account
as well as the circumstance that the testatrix
Gregoria Villaflor has neither signed or
subscribed the alleged will, notwithstanding the
fact that it has been proven in the record, that on
July 12, 1923, the day in which it is alleged that
said will was executed, the testatrix was, in good
and sound health, although she could not walk
on her own feet inasmuch as she was then
suffering from rheumatism or partial paralysis of
the lower extremities, and that on July 27, and
May 25, 1923, the testatrix Gregoria Villaflor
used to mark with her thumb, if she did not sign,
the document she executed, as it was proven
during the trials by Exhibit 1 and 2 of the

opponents, the doubt and suspicion which this

court entertains in regard to the authenticity of
the will in question, becomes a certainty that
said testament is false.
We are reluctant to set aside the findings of the court
below but they are, in our opinion, so clearly without
sufficient support in the record that we are constrained to
reject them. The will in question is dated July 12, 1923,
and was prepared by a lawyer, Eustaquio Gallardo, and
as far as appearances go, was executed in strict
compliance with the provisions of section 618 of the
Code of Civil Procedure for the execution of wills. The
testatrix's name was signed by one Claro Lazo, a clerk
in the office of municipal treasurer of Santo Domingo,
and the attesting witnesses were Vicente Tacderas,
municipal president, Rufino D. Soliven, chief of police,
and Mariano Pizarro, municipal treasurer, all of the town
of Santo Domingo. The finding of the court below that
the witness Soliven was not present when Claro Lazo
signed the name of testatrix and when Vicente Tacderas
signed as witness, is based on the fact that, in testifying
in this case, Claro Lazo upon being asked to enumerate
the names of the persons present at the time of signing
of the document, omitted the name of Soliven. But it
appears from the transcript of the testimony that he
afterwards corrected his original statement and testified
that Soliven, as well as the other witnesses to the will,
was present while all of the signatures were fixed. This is
in harmony with the testimony of all of the instrumental
witnesses and is undoubtfully true; there is, indeed,
nothing strange or unusual in a mistake such as that
made by Lazo. It may be noted that it is not disputed that
the lawyer Gallardo was present during the whole
proceeding and as he appears to have possessed full
knowledge of the formal requirements for the execution
of the will, it is highly improbable that he would have
allowed the will in question to be signed without the
presence of a testatrix and of all the witnesses.
That the attestation clause of the will is written on a
separate page and not on the last page of the body of
the document is, in our opinion, a matter of minor
importance and is explained by the fact that if the clause
had been written on the eight page of the will in direction
continuation of the body thereof, there would have been
sufficient space on that page for the signatures of the
witnesses to the clause. It is also to be observed that all
of the pages, including that upon which the attestation
clause is written, bear the signatures of all the witnesses
and that there is no question whatever as to the
genuineness of said signatures.
The fact that the name of the testatrix was written by
another person, and that she did not sign by thumb
mark, is easily explained and is evidently due to an
attempt on the part of the lawyer Gallardo to comply
strictly with the following clause in the Spanish text of
section 618 of the Code of Civil Procedure: "Excepto en
el caso a que se refiere el articulo anterior, no sera
valido para la transmision de bienes muebles e
inmuebles, ni los gravara y afectara, ningun testamento
a menos que este escrito y que haya sido firmado por el

!31

testador, o que lleve el nombre de este, escrito por otra

persona en su presencia y bajo su direccion
expresa, . . . ." The making of a finger mark is not
"escribir" and it may be noted that Gallardo apparently is
a good Spanish scholar, that it does not appear that he
knows the English language;. and that he therefore
probably used the Spanish text of the Code.
There is some testimony on the part of the contestants
to the effect that the testatrix on various occasions,
subsequent to the execution of the will, had stated that it
was not in conformity with her instructions and that it
was not her will. Assuming that such statements were
made, we can give them but little importance. The
testatrix was an old woman and might have well made
the statements by way of justification in conversation
with persons who considered themselves wronged by
the provisions of her will, but expressions of that kind
cannot, of course, work the revocation of the document.
The testatrix lived for over two years after the will was
made and had ample opportunity to make another will if
she was dissatisfied with the first.
For the reasons stated the appealed judgment is hereby
reversed and it is ordered that the document in question
be admitted to probate as the last will and testament of
the deceased Gregoria Villaflor. No costs will be allowed.
So ordered.
ART. 810
G.R. No. L-38338 January 28, 1985
IN THE MATTER OF THE INTESTATE ESTATE OF
ANDRES G. DE JESUS AND BIBIANA ROXAS DE
JESUS, SIMEON R. ROXAS & PEDRO ROXAS DE
JESUS, petitioners,
vs.ANDRES R. DE JESUS, JR., respondent.
This is a petition for certiorari to set aside the order of
respondent Hon. Jose C. Colayco, Presiding Judge
Court of First Instance of Manila, Branch XXI disallowing
the probate of the holographic Will of the deceased
Bibiana Roxas de Jesus.
The antecedent facts which led to the filing of this
petition are undisputed.
After the death of spouses Andres G. de Jesus and
Bibiana Roxas de Jesus, Special Proceeding No. 81503
entitled "In the Matter of the Intestate Estate of Andres
G. de Jesus and Bibiana Roxas de Jesus" was filed by
petitioner Simeon R. Roxas, the brother of the deceased
Bibiana Roxas de Jesus.
On March 26, 1973, petitioner Simeon R. Roxas was
appointed administrator. After Letters of Administration
had been granted to the petitioner, he delivered to the
lower court a document purporting to be the holographic
Will of the deceased Bibiana Roxas de Jesus. On May
26, 1973, respondent Judge Jose Colayco set the
hearing of the probate of the holographic Win on July 21,
1973.
Petitioner Simeon R. Roxas testified that after his
appointment as administrator, he found a notebook
belonging to the deceased Bibiana R. de Jesus and that

on pages 21, 22, 23 and 24 thereof, a letter-win

addressed to her children and entirely written and signed
in the handwriting of the deceased Bibiana R. de Jesus
was found. The will is dated "FEB./61 " and states: "This
is my win which I want to be respected although it is not
written by a lawyer. ...
The testimony of Simeon R. Roxas was corroborated by
the testimonies of Pedro Roxas de Jesus and Manuel
Roxas de Jesus who likewise testified that the letter
dated "FEB./61 " is the holographic Will of their
deceased mother, Bibiana R. de Jesus. Both recognized
the handwriting of their mother and positively Identified
her signature. They further testified that their deceased
mother understood English, the language in which the
holographic Will is written, and that the date "FEB./61 "
was the date when said Will was executed by their
mother.
Respondent Luz R. Henson, another compulsory heir
filed an "opposition to probate" assailing the purported
holographic Will of Bibiana R. de Jesus because a it was
not executed in accordance with law, (b) it was executed
through force, intimidation and/or under duress, undue
influence and improper pressure, and (c) the alleged
testatrix acted by mistake and/or did not intend, nor
could have intended the said Will to be her last Will and
testament at the time of its execution.
On August 24, 1973, respondent Judge Jose C. Colayco
issued an order allowing the probate of the holographic
Will which he found to have been duly executed in
accordance with law.
Respondent Luz Roxas de Jesus filed a motion for
reconsideration alleging inter alia that the alleged
holographic Will of the deceased Bibiana R. de Jesus
was not dated as required by Article 810 of the Civil
Code. She contends that the law requires that the Will
should contain the day, month and year of its execution
and that this should be strictly complied with.
On December 10, 1973, respondent Judge Colayco
reconsidered his earlier order and disallowed the
probate of the holographic Will on the ground that the
word "dated" has generally been held to include the
month, day, and year. The dispositive portion of the
order reads:
WHEREFORE, the document purporting
to be the holographic Will of Bibiana
Roxas de Jesus, is hereby disallowed
for not having been executed as
required by the law. The order of August
24, 1973 is hereby set aside.
The only issue is whether or not the date "FEB./61 "
appearing on the holographic Will of the deceased
Bibiana Roxas de Jesus is a valid compliance with the
Article 810 of the Civil Code which reads:
ART. 810. A person may execute a
holographic will which must be entirely
written, dated, and signed by the hand
of the testator himself. It is subject to no
other form, and may be made in or out

!32

of the Philippines, and need not be

witnessed.
The petitioners contend that while Article 685 of the
Spanish Civil Code and Article 688 of the Old Civil Code
require the testator to state in his holographic Win the
"year, month, and day of its execution," the present Civil
Code omitted the phrase Ao mes y dia and simply
requires that the holographic Will should be dated. The
petitioners submit that the liberal construction of the
holographic Will should prevail.
Respondent Luz Henson on the other hand submits that
the purported holographic Will is void for non-compliance
with Article 810 of the New Civil Code in that the date
must contain the year, month, and day of its execution.
The respondent contends that Article 810 of the Civil
Code was patterned after Section 1277 of the California
Code and Section 1588 of the Louisiana Code whose
Supreme Courts had consistently ruled that the required
date includes the year, month, and day, and that if any of
these is wanting, the holographic Will is invalid. The
respondent further contends that the petitioner cannot
plead liberal construction of Article 810 of the Civil Code
because statutes prescribing the formalities to be
observed in the execution of holographic Wills are strictly
construed.
We agree with the petitioner.
This will not be the first time that this Court departs from
a strict and literal application of the statutory
requirements regarding the due execution of Wills. We
should not overlook the liberal trend of the Civil Code in
the manner of execution of Wills, the purpose of which,
in case of doubt is to prevent intestacy
The underlying and fundamental
objectives permeating the provisions of
the law on wigs in this Project consists
in the liberalization of the manner of
their execution with the end in view of
giving the testator more freedom in
expressing his last wishes, but with
sufficien safeguards and restrictions to
prevent the commission of fraud and the
exercise of undue and improper
pressure and influence upon the
testator.
This objective is in accord with the
modem tendency with respect to the
formalities in the execution of wills.
(Report of the Code Commission, p.
103)
In Justice Capistrano's concurring opinion in Heirs
of Raymundo Castro v. Bustos (27 SCRA 327) he
emphasized that:
xxx xxx xxx
... The law has a tender regard for the
will of the testator expressed in his last
will and testament on the ground that
any disposition made by the testator is

better than that which the law can make.

For this reason, intestate succession is
nothing more than a disposition based
upon the presumed will of the decedent.
Thus, the prevailing policy is to require satisfaction of the
legal requirements in order to guard against fraud and
bad faith but without undue or unnecessary curtailment
of testamentary privilege Icasiano v. Icasiano, 11 SCRA
422). If a Will has been executed in substantial
compliance with the formalities of the law, and the
possibility of bad faith and fraud in the exercise thereof is
obviated, said Win should be admitted to probate (Rey v.
Cartagena 56 Phil. 282). Thus,
xxx xxx xxx
... More than anything else, the facts
and circumstances of record are to be
considered in the application of any
given rule. If the surrounding
circumstances point to a regular
execution of the wilt and the instrument
appears to have been executed
substantially in accordance with the
requirements of the law, the inclination
should, in the absence of any
suggestion of bad faith, forgery or fraud,
lean towards its admission to probate,
although the document may suffer from
some imperfection of language, or other
non-essential defect. ... (Leynez v.
Leynez 68 Phil. 745).
If the testator, in executing his Will, attempts to comply
with all the requisites, although compliance is not literal,
it is sufficient if the objective or purpose sought to be
accomplished by such requisite is actually attained by
the form followed by the testator.
The purpose of the solemnities surrounding the
execution of Wills has been expounded by this Court
in Abangan v. Abanga 40 Phil. 476, where we ruled that:
The object of the solemnities
surrounding the execution of wills is to
close the door against bad faith and
fraud, to avoid substitution of wills and
testaments and to guaranty their truth
and authenticity. ...
In particular, a complete date is required to provide
against such contingencies as that of two competing
Wills executed on the same day, or of a testator
becoming insane on the day on which a Will was
executed (Velasco v. Lopez, 1 Phil. 720). There is no
such contingency in this case.
We have carefully reviewed the records of this case and
found no evidence of bad faith and fraud in its execution
nor was there any substitution of Wins and Testaments.
There is no question that the holographic Will of the
deceased Bibiana Roxas de Jesus was entirely written,
dated, and signed by the testatrix herself and in a
language known to her. There is also no question as to
its genuineness and due execution. All the children of

!33

the testatrix agree on the genuineness of the

holographic Will of their mother and that she had the
testamentary capacity at the time of the execution of
said Will. The objection interposed by the oppositorrespondent Luz Henson is that the holographic Will is
fatally defective because the date "FEB./61 " appearing
on the holographic Will is not sufficient compliance with
Article 810 of the Civil Code. This objection is too
technical to be entertained.
As a general rule, the "date" in a holographic Will should
include the day, month, and year of its execution.
However, when as in the case at bar, there is no
appearance of fraud, bad faith, undue influence and
pressure and the authenticity of the Will is established
and the only issue is whether or not the date "FEB./61"
appearing on the holographic Will is a valid compliance
with Article 810 of the Civil Code, probate of the
holographic Will should be allowed under the principle of
substantial compliance.
WHEREFORE, the instant petition is GRANTED. The
order appealed from is REVERSED and SET ASIDE and
the order allowing the probate of the holographic Will of
the deceased Bibiana Roxas de Jesus is reinstated.
SO ORDERED.
G.R. Nos. 83843-44

April 5, 1990

IN THE MATTER OF THE PETITION TO APPROVE

THE WILL OF MELECIO LABRADOR. SAGRADO
LABRADOR (Deceased), substituted by ROSITA
LABRADOR, ENRICA LABRADOR, and CRISTOBAL
LABRADOR, petitioners-appellants,
vs.COURT OF APPEALS, 1 GAUDENCIO LABRADOR,
and JESUS LABRADOR, respondents-appellees.
The sole issue in this case is whether or not the alleged
holographic will of one Melecio Labrador is dated, as
provided for in Article 8102 of the New Civil Code.
The antecedent and relevant facts are as follows: On
June 10, 1972, Melecio Labrador died in the Municipality
of Iba, province of Zambales, where he was residing,
leaving behind a parcel of land designated as Lot No.
1916 under Original Certificate of Title No. P-1652, and
the following heirs, namely: Sagrado, Enrica, Cristobal,
Jesus, Gaudencio, Josefina, Juliana, Hilaria and Jovita,
all surnamed Labrador, and a holographic will.
On July 28, 1975, Sagrado Labrador (now deceased but
substituted by his heirs), Enrica Labrador and Cristobal
Labrador, filed in the court a quo a petition for the
probate docketed as Special Proceeding No. 922-I of the
alleged holographic will of the late Melecio Labrador.
Subsequently, on September 30, 1975, Jesus Labrador
(now deceased but substituted by his heirs), and
Gaudencio Labrador filed an opposition to the petition on
the ground that the will has been extinguished or
revoked by implication of law, alleging therein that on
September 30, 1971, that is, before Melecio's death, for
the consideration of Six Thousand (P6,000) Pesos,
testator Melecio executed a Deed of Absolute Sale,
selling, transferring and conveying in favor of oppositors

Jesus and Gaudencio Lot No. 1916 and that as a matter

of fact, O.C.T. No. P-1652 had been cancelled by T.C.T.
No. T-21178. Earlier however, in 1973, Jesus Labrador
sold said parcel of land to Navat for only Five Thousand
(P5,000) Pesos. (Rollo, p. 37)
Sagrado thereupon filed, on November 28, 1975, against
his brothers, Gaudencio and Jesus, for the annulment of
said purported Deed of Absolute Sale over a parcel of
land which Sagrado allegedly had already acquired by
devise from their father Melecio Labrador under a
holographic will executed on March 17, 1968, the
complaint for annulment docketed as Civil Case No.
934-I, being premised on the fact that the aforesaid
Deed of Absolute Sale is fictitious.
After both parties had rested and submitted their
respective evidence, the trial court rendered a joint
decision dated February 28, 1985, allowing the probate
of the holographic will and declaring null and void the
Deed of Absolute sale. The court a quo had also directed
the respondents (the defendants in Civil Case No. 934-I)
to reimburse to the petitioners the sum of P5,000.00
representing the redemption price for the property paid
by the plaintiff-petitioner Sagrado with legal interest
thereon from December 20, 1976, when it was paid to
vendee a retro.
Respondents appealed the joint decision to the Court of
Appeals, which on March 10, 1988 modified said joint
decision of the court a quo by denying the allowance of
the probate of the will for being undated and reversing
the order of reimbursement. Petitioners' Motion for
Reconsideration of the aforesaid decision was denied by
the Court of Appeals, in the resolution of June 13, 1988.
Hence, this petition.
Petitioners now assign the following errors committed by
respondent court, to wit:
I
THE COURT OF APPEALS ERRED IN NOT
ALLOWING AND APPROVING THE PROBATE
OF THE HOLOGRAPHIC WILL OF THE
TESTATOR MELECIO LABRADOR; and
II
THE COURT OF APPEALS ERRED IN
FINDING THAT THE ORDER OF THE LOWER
COURT DIRECTING THE REIMBURSEMENT
OF THE FIVE THOUSAND PESOS
REPRESENTING THE REDEMPTION PRICE
WAS ERRONEOUS.
The alleged undated holographic will written in Ilocano
translated into English, is quoted as follows:
ENGLISH INTERPRETATION OF THE WILL OF
THE
LATE MELECIO LABRADOR WRITTEN IN
ILOCANO
BY ATTY. FIDENCIO L. FERNANDEZ
I First Page

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This is also where it appears in writing of the

place which is assigned and shared or the
partition in favor of SAGRADO LABRADOR
which is the fishpond located and known place
as Tagale.
And this place that is given as the share to him,
there is a measurement of more or less one
hectare, and the boundary at the South is the
property and assignment share of ENRICA
LABRADOR, also their sister, and the boundary
in the West is the sea, known as the SEA as it
is, and the boundary on the NORTH is
assignment belonging to CRISTOBAL
LABRADOR, who likewise is also their brother.
That because it is now the time for me being
now ninety three (93) years, then I feel it is the
right time for me to partition the fishponds which
were and had been bought or acquired by us,
meaning with their two mothers, hence there
shall be no differences among themselves,
those among brothers and sisters, for it is I
myself their father who am making the
apportionment and delivering to each and
everyone of them the said portion and
assignment so that there shall not be any cause
of troubles or differences among the brothers
and sisters.
II Second Page
And this is the day in which we agreed that we
are making the partitioning and assigning the
respective assignment of the said fishpond, and
this being in the month of March, 17th day, in the
year 1968, and this decision and or instruction of
mine is the matter to be followed. And the one
who made this writing is no other than MELECIO
LABRADOR, their father.
Now, this is the final disposition that I am making
in writing and it is this that should be followed
and complied with in order that any differences
or troubles may be forestalled and nothing will
happen along these troubles among my
children, and that they will be in good relations
among themselves, brothers and sisters;
And those improvements and fruits of the land;
mangoes, bamboos and all coconut trees and all
others like the other kind of bamboo by name of
Bayog, it is their right to get if they so need, in
order that there shall be nothing that anyone of
them shall complain against the other, and
against anyone of the brothers and sisters.
III THIRD PAGE
And that referring to the other places of property,
where the said property is located, the same
being the fruits of our earnings of the two
mothers of my children, there shall be equal
portion of each share among themselves, and or
to be benefitted with all those property, which
property we have been able to acquire.

That in order that there shall be basis of the truth

of this writing (WILL) which I am here hereof
manifesting of the truth and of the fruits of our
labor which their two mothers, I am signing my
signature below hereof, and that this is what
should be complied with, by all the brothers and
sisters, the children of their two mothers
JULIANA QUINTERO PILARISA and CASIANA
AQUINO VILLANUEVA Your father who made
this writing (WILL), and he is, MELECIO
LABRADOR y RALUTIN (p. 46, Rollo)
The petition, which principally alleges that the
holographic will is really dated, although the date is not
in its usual place, is impressed with merit.
The will has been dated in the hand of the testator
himself in perfect compliance with Article 810.1wphi1 It
is worthy of note to quote the first paragraph of the
second page of the holographic will, viz:
And this is the day in which we agreed that we
are making the partitioning and assigning the
respective assignment of the said fishpond, and
this being in the month of March, 17th day, in the
year 1968, and this decision and or instruction of
mine is the matter to be followed. And the one
who made this writing is no other than MELECIO
LABRADOR, their father. (emphasis supplied)
(p. 46, Rollo)
The law does not specify a particular location where the
date should be placed in the will. The only requirements
are that the date be in the will itself and executed in the
hand of the testator. These requirements are present in
the subject will.
Respondents claim that the date 17 March 1968 in the
will was when the testator and his beneficiaries entered
into an agreement among themselves about "the
partitioning and assigning the respective assignments of
the said fishpond," and was not the date of execution of
the holographic will; hence, the will is more of an
"agreement" between the testator and the beneficiaries
thereof to the prejudice of other compulsory heirs like the
respondents. This was thus a failure to comply with
Article 783 which defines a will as "an act whereby a
person is permitted, with the formalities prescribed by
law, to control to a certain degree the disposition of his
estate, to take effect after his death."
Respondents are in error. The intention to show 17
March 1968 as the date of the execution of the will is
plain from the tenor of the succeeding words of the
paragraph. As aptly put by petitioner, the will was not an
agreement but a unilateral act of Melecio Labrador who
plainly knew that what he was executing was a will. The
act of partitioning and the declaration that such
partitioning as the testator's instruction or decision to be
followed reveal that Melecio Labrador was fully aware of
the nature of the estate property to be disposed of and of
the character of the testamentary act as a means to
control the disposition of his estate.

!35

Anent the second issue of finding the reimbursement of

the P5,000 representing the redemption price as
erroneous, respondent court's conclusion is incorrect.
When private respondents sold the property (fishpond)
with right to repurchase to Navat for P5,000, they were
actually selling property belonging to another and which
they had no authority to sell, rendering such sale null
and void. Petitioners, thus "redeemed" the property from
Navat for P5,000, to immediately regain possession of
the property for its disposition in accordance with the
will. Petitioners therefore deserve to be reimbursed the
P5,000.
PREMISES CONSIDERED, the decision of the Court of
Appeals dated March 10, 1988 is hereby REVERSED.
The holographic will of Melecio Labrador is APPROVED
and ALLOWED probate. The private respondents are
directed to REIMBURSE the petitioners the sum of Five
Thousand Pesos (P5,000.00).
SO ORDERED.
ART. 811
G.R. No. L-14003

August 5, 1960

FEDERICO AZAOLA, petitioner-appellant,

vs.CESARIO SINGSON, oppositor-appellee.
This appeal, taken on points of law from a decision
rendered on 15 January 1958 by the Court of First
Instance of Quezon City in its Special Proceedings No.
Q-2640, involves the determination of the quantity of
evidence required for the probate of a holographic will.
The established facts are thus summarized in the
decision appealed from (Rec. App. pp. 22-24):
"Briefly speaking, the following facts were
established by the petitioner; that on September
9, 1957, Fortunata S. Vda. de Yance died at 13
Luskot, Quezon City, known to be the last
residence of said testatrix; that Francisco
Azaola, petitioner herein for probate of the
holographic will, submitted the said holographic
will (Exh. C) whereby Maria Milagros Azaola was
made the sole heir as against the nephew of
deceased Cesario Singson; that witness
Francisco Azaola testified that he saw the
holographic will (Exh. C) one month, more or
less, before the death of the testatrix, as the
same was handed to him and his wife; that the
witness testified also that he recognized all the
signatures appearing in the holographic will
(Exh. C) as the handwriting of the testatrix and
to reinforce said statement, witness presented
the mortgage (Exh. E), the special power of the
attorney (Exh. F), and the general power of
attorney (Exh. F-1), besides the deeds of sale
(Exhs. G and G-1) including an affidavit (Exh.
G-2), and that there were further exhibited in
court two residence certificates (Exhs. H and
H-1) to show the signatures of the testatrix, for
comparison purposes; that said witness, Azaola,
testified that the penmanship appearing in the
aforesaid documentary evidence is in the

handwriting of the testatrix as well as the

signatures appearing in the aforesaid
documentary evidence is in the handwriting of
the testatrix as well as the signatures appearing
therein are the signatures of the testatrix; that
said witness, in answer to a question of his
counsel admitted that the holographic will was
handed to him by the testatrix. "apparently it
must have been written by her" (t.s.n., p. 11).
However, on page 16 on the same transcript of
the stenographic notes, when the same witness
was asked by counsel if he was familiar with the
penmanship and handwriting of the deceased
Fortunata Vda. de Yance, he answered
positively in the affirmative and when he was
asked again whether the penmanship referred to
in the previous answer as appearing in the
holographic will (Exh. C) was hers (testatrix'), he
answered, "I would definitely say it is hers"; that
it was also established in the proceedings that
the assessed value of the property of the
deceased in Luskot, Quezon City, is in the
amount of P7,000.00.
The opposition to the probate was on the ground that (1)
the execution of the will was procured by undue and
improper pressure and influence on the part of the
petitioner and his wife, and (2) that the testatrix did not
seriously intend the instrument to be her last will, and
that the same was actually written either on the 5th or
6th day of August 1957 and not on November 20, 1956
as appears on the will.
The probate was denied on the ground that under Article
811 of the Civil Code, the proponent must present three
witnesses who could declare that the will and the
signature are in the writing of the testatrix, the probate
being contested; and because the lone witness
presented by the proponent "did not prove sufficiently
that the body of the will was written in the handwriting of
the testatrix."
The proponent appealed, urging: first, that he was not
bound to produce more than one witness because the
will's authenticity was not questioned; and second, that
Article 811 does not mandatorily require the production
of three witnesses to identify the handwriting and
signature of a holographic will, even if its authenticity
should be denied by the adverse party.
Article 811 of the Civil Code of the Philippines is to the
following effect:
ART. 811. In the probate of a holographic will, it
shall be necessary that at least one witness who
knows the handwriting and signature of the
testator explicitly declare that the will and the
signature are in the handwriting of the testator. If
the will is contested, at least three of such
witnesses shall be required.
In the absence of any competent witnesses
referred to in the preceding paragraph, and if the
court deems it necessary, expert testimony may
be resorted to. (691a).

!36

We agree with the appellant that since the authenticity of

the will was not contested, he was not required to
produce more than one witness; but even if the
genuineness of the holographic will were contested, we
are of the opinion that Article 811 of our present Civil
Code can not be interpreted as to require the
compulsory presentation of three witnesses to identify
the handwriting of the testator, under penalty of having
the probate denied. Since no witness may have been
present at the execution of a holographic will, none
being required by law (Art. 810, new Civil Code), it
becomes obvious that the existence of witness
possessing the requisite qualifications is a matter
beyond the control of the proponent. For it is not merely
a question of finding and producing any three witnesses;
they must be witnesses "who know the handwriting and
signature of the testator" and who can declare (truthfully,
of course, even if the law does not so express) "that the
will and the signature are in the handwriting of the
testator". There may be no available witness of the
testator's hand; or even if so familiarized, the witnesses
may be unwilling to give a positive opinion. Compliance
with the rule of paragraph 1 of Article 811 may thus
become an impossibility. That is evidently the reason
why the second paragraph of Article 811 prescribes that

in the absence of any competent witness

referred to in the preceding paragraph, and if the
court deems it necessary, expert testimony may
be resorted to.
As can be seen, the law foresees the possibility that no
qualified witness may be found (or what amounts to the
same thing, that no competent witness may be willing to
testify to the authenticity of the will), and provides for
resort to expert evidence to supply the deficiency.
It may be true that the rule of this article (requiring that
three witnesses be presented if the will is contested and
only one if no contest is had) was derived from the rule
established for ordinary testaments (cf. Cabang vs.
Delfinado, 45 Phil., 291; Tolentino vs. Francisco, 57
Phil., 742). But it can not be ignored that the requirement
can be considered mandatory only in the case of
ordinary testaments, precisely because the presence of
at least three witnesses at the execution of ordinary wills
is made by law essential to their validity (Art. 805).
Where the will is holographic, no witness need be
present (Art. 10), and the rule requiring production of
three witnesses must be deemed merely permissive if
absurd results are to be avoided.
Again, under Article 811, the resort to expert evidence is
conditioned by the words "if the Court deem it
necessary", which reveal that what the law deems
essential is that the Court should be convinced of the
will's authenticity. Where the prescribed number of
witnesses is produced and the court is convinced by
their testimony that the ill is genuine, it may consider it
unnecessary to call for expert evidence. On the other
hand, if no competent witness is available, or none of
those produced is convincing, the Court may still, and in
fact it should, resort to handwriting experts. The duty of

the Court, in fine, is to exhaust all available lines of

inquiry, for the state is as much interested as the
proponent that the true intention of the testator be
carried into effect.
Commenting on analogous provisions of Article 691 of
the Spanish Civil Code of 1889, the noted Commentator,
Mucuis Scaevola (Vol. 12, 2nd Ed., p.421), sagely
remarks:
La manera como esta concebida la redaccion
del ultimo apartado de dicho precepto induce la
conclusion de que siempre o por lo menos, en la
mayor parte de los casos, el Juez debe acudir al
criterio pericial para que le ilustre acerca de la
autenticidad del testamento olografo, aunque ya
esten insertas en los autos del expediente las
declaraciones testificales. La prudencia con que
el Juez debe de proceder en resoluciones de
transcendencia asi lo exige, y la indole delicada
y peligrosa del testamento olografo lo hace
necesario para mayor garantia de todos los
interes comprometidos en aquel.
En efecto, el cotejo pericial de letras puede ser
una confirmacion facultativa del dicho profano
de los testigos y un modo de desvanecer las
ultimas dudas que pudieran ocurrir al Juez
acerca de la autenticidad que trata de averigaur
y declarar. Para eso se ha escrito la frase del
citado ultimo apartado, (siempre que el Juez lo
estime conveniente), haya habido o no testigos
y dudaran o no estos respecto de los extremos
por que son preguntados.
El arbitrio judicial en este caso debe formarse
con independencia de los sucesos y de su
significacion, para responder debidamente de
las resoluciones que haya de dictar.
And because the law leaves it to the trial court if experts
are still needed, no unfavourable inference can be drawn
from a party's failure to offer expert evidence, until and
unless the court expresses dissatisfaction with the
testimony of the lay witnesses.
Our conclusion is that the rule of the first paragraph of
Article 811 of the Civil Code is merely directory and is
not mandatory.
Considering, however, that this is the first occasion in
which this Court has been called upon to construe the
import of said article, the interest of justice would be
better served, in our opinion, by giving the parties ample
opportunity to adduce additional evidence, including
expert witnesses, should the Court deem them
necessary.
In view of the foregoing, the decision appealed from is
set aside, and the records ordered remanded to the
Court of origin, with instructions to hold a new trial in
conformity with this opinion. But evidence already on
record shall not be retaken. No costs.
G.R. No. L-18979

June 30, 1964

!37

IN THE MATTER OF THE TESTATE ESTATE OF THE

LATE JOSEFA VILLACORTE.
CELSO ICASIANO, petitioner-appellee,
vs.NATIVIDAD ICASIANO and ENRIQUE
ICASIANO, oppositors-appellants.
Appeal from an order of the Court of First Instance of
Manila admitting to probate the document and its
duplicate, marked as Exhibits "A" and "A-1", as the true
last will and testament of Josefa Villacorte, deceased,
and appointing as executor Celso Icasiano, the person
named therein as such.
This special proceeding was begun on October 2, 1958
by a petition for the allowance and admission to probate
of the original, Exhibit "A" as the alleged will of Josefa
Villacorte, deceased, and for the appointment of
petitioner Celso Icasiano as executor thereof.
The court set the proving of the alleged will for
November 8, 1958, and caused notice thereof to be
published for three (3) successive weeks, previous to the
time appointed, in the newspaper "Manila chronicle", and
also caused personal service of copies thereof upon the
known heirs.
On October 31, 1958, Natividad Icasiano, a daughter of
the testatrix, filed her opposition; and on November 10,
1958, she petitioned to have herself appointed as a
special administrator, to which proponent objected.
Hence, on November 18, 1958, the court issued an
order appointing the Philippine Trust Company as
special administrator. 1wph1.t

before and attested by three instrumental witnesses,

namely: attorneys Justo P. Torres, Jr. and Jose V.
Natividad, and Mr. Vinicio B. Diy; that the will was
acknowledged by the testatrix and by the said three
instrumental witnesses on the same date before attorney
Jose Oyengco Ong, Notary Public in and for the City of
Manila; and that the will was actually prepared by
attorney Fermin Samson, who was also present during
the execution and signing of the decedent's last will and
testament, together with former Governor Emilio Rustia
of Bulacan, Judge Ramon Icasiano and a little girl. Of
the said three instrumental witnesses to the execution of
the decedent's last will and testament, attorneys Torres
and Natividad were in the Philippines at the time of the
hearing, and both testified as to the due execution and
authenticity of the said will. So did the Notary Public
before whom the will was acknowledged by the testatrix
and attesting witnesses, and also attorneys Fermin
Samson, who actually prepared the document. The latter
also testified upon cross examination that he prepared
one original and two copies of Josefa Villacorte last will
and testament at his house in Baliuag, Bulacan, but he
brought only one original and one signed copy to Manila,
retaining one unsigned copy in Bulacan.

On February 18, 1959, Enrique Icasiano, a son of the

testatrix, also filed a manifestation adopting as his own
Natividad's opposition to the probate of the alleged will.

The records show that the original of the will, which was
surrendered simultaneously with the filing of the petition
and marked as Exhibit "A" consists of five pages, and
while signed at the end and in every page, it does not
contain the signature of one of the attesting witnesses,
Atty. Jose V. Natividad, on page three (3) thereof; but the
duplicate copy attached to the amended and
supplemental petition and marked as Exhibit "A-1" is
signed by the testatrix and her three attesting witnesses
in each and every page.

On March 19, 1959, the petitioner proponent

commenced the introduction of his evidence; but on
June 1, 1959, he filed a motion for the admission of an
amended and supplemental petition, alleging that the
decedent left a will executed in duplicate with all the
legal requirements, and that he was, on that date,
submitting the signed duplicate (Exhibit "A-1"), which he
allegedly found only on or about May 26, 1959. On June
17, 1959, oppositors Natividad Icasiano de Gomez and
Enrique Icasiano filed their joint opposition to the
admission of the amended and supplemental petition,
but by order of July 20, 1959, the court admitted said
petition, and on July 30, 1959, oppositor Natividad
Icasiano filed her amended opposition. Thereafter, the
parties presented their respective evidence, and after
several hearings the court issued the order admitting the
will and its duplicate to probate. From this order, the
oppositors appealed directly to this Court, the amount
involved being over P200,000.00, on the ground that the
same is contrary to law and the evidence.

The testimony presented by the proponents of the will

tends to show that the original of the will and its
duplicate were subscribed at the end and on the left
margin of each and every page thereof by the testatrix
herself and attested and subscribed by the three
mentioned witnesses in the testatrix's presence and in
that of one another as witnesses (except for the missing
signature of attorney Natividad on page three (3) of the
original); that pages of the original and duplicate of said
will were duly numbered; that the attestation clause
thereof contains all the facts required by law to be
recited therein and is signed by the aforesaid attesting
witnesses; that the will is written in the language known
to and spoken by the testatrix that the attestation clause
is in a language also known to and spoken by the
witnesses; that the will was executed on one single
occasion in duplicate copies; and that both the original
and the duplicate copies were duly acknowledged before
Notary Public Jose Oyengco of Manila on the same date
June 2, 1956.

The evidence presented for the petitioner is to the effect

that Josefa Villacorte died in the City of Manila on
September 12, 1958; that on June 2, 1956, the late
Josefa Villacorte executed a last will and testament in
duplicate at the house of her daughter Mrs. Felisa
Icasiano at Pedro Guevara Street, Manila, published

Witness Natividad who testified on his failure to sign

page three (3) of the original, admits that he may have
lifted two pages instead of one when he signed the
same, but affirmed that page three (3) was signed in his
presence.

!38

Oppositors-appellants in turn introduced expert

testimony to the effect that the signatures of the testatrix
in the duplicate (Exhibit "A-1") are not genuine nor were
they written or affixed on the same occasion as the
original, and further aver that granting that the
documents were genuine, they were executed through
mistake and with undue influence and pressure because
the testatrix was deceived into adopting as her last will
and testament the wishes of those who will stand to
benefit from the provisions of the will, as may be inferred
from the facts and circumstances surrounding the
execution of the will and the provisions and dispositions
thereof, whereby proponents-appellees stand to profit
from properties held by them as attorneys-in-fact of the
deceased and not enumerated or mentioned therein,
while oppositors-appellants are enjoined not to look for
other properties not mentioned in the will, and not to
oppose the probate of it, on penalty of forfeiting their
share in the portion of free disposal.
We have examined the record and are satisfied, as the
trial court was, that the testatrix signed both original and
duplicate copies (Exhibits "A" and "A-1", respectively) of
the will spontaneously, on the same in the presence of
the three attesting witnesses, the notary public who
acknowledged the will; and Atty. Samson, who actually
prepared the documents; that the will and its duplicate
were executed in Tagalog, a language known to and
spoken by both the testator and the witnesses, and read
to and by the testatrix and Atty. Fermin Samson,
together before they were actually signed; that the
attestation clause is also in a language known to and
spoken by the testatrix and the witnesses. The opinion of
expert for oppositors, Mr. Felipe Logan, that the
signatures of the testatrix appearing in the duplicate
original were not written by the same had which wrote
the signatures in the original will leaves us unconvinced,
not merely because it is directly contradicted by expert
Martin Ramos for the proponents, but principally
because of the paucity of the standards used by him to
support the conclusion that the differences between the
standard and questioned signatures are beyond the
writer's range of normal scriptural variation. The expert
has, in fact, used as standards only three other
signatures of the testatrix besides those affixed to the
original of the testament (Exh. A); and we feel that with
so few standards the expert's opinion and the signatures
in the duplicate could not be those of the testatrix
becomes extremely hazardous. This is particularly so
since the comparison charts Nos. 3 and 4 fail to show
convincingly that the are radical differences that would
justify the charge of forgery, taking into account the
advanced age of the testatrix, the evident variability of
her signatures, and the effect of writing fatigue, the
duplicate being signed right the original. These, factors
were not discussed by the expert.
Similarly, the alleged slight variance in blueness of the
ink in the admitted and questioned signatures does not
appear reliable, considering the standard and challenged
writings were affixed to different kinds of paper, with
different surfaces and reflecting power. On the whole,
therefore, we do not find the testimony of the oppositor's

expert sufficient to overcome that of the notary and the

two instrumental witnesses, Torres and Natividad (Dr.
Diy being in the United States during the trial, did not
testify).
Nor do we find adequate evidence of fraud or undue
influence. The fact that some heirs are more favored
than others is proof of neither (see In re Butalid, 10 Phil.
27; Bugnao vs. Ubag, 14 Phil. 163; Pecson vs. Coronal,
45 Phil. 216). Diversity of apportionment is the usual
reason for making a testament; otherwise, the decedent
might as well die intestate. The testamentary
dispositions that the heirs should not inquire into other
property and that they should respect the distribution
made in the will, under penalty of forfeiture of their
shares in the free part do not suffice to prove fraud or
undue influence. They appear motivated by the desire to
prevent prolonged litigation which, as shown by ordinary
experience, often results in a sizeable portion of the
estate being diverted into the hands of non-heirs and
speculators. Whether these clauses are valid or not is a
matter to be litigated on another occassion. It is also well
to note that, as remarked by the Court of Appeals
in Sideco vs. Sideco, 45 Off. Gaz. 168, fraud and undue
influence are mutually repugnant and exclude each
other; their joining as grounds for opposing probate
shows absence of definite evidence against the validity
of the will.
On the question of law, we hold that the inadvertent
failure of one witness to affix his signature to one page
of a testament, due to the simultaneous lifting of two
pages in the course of signing, is not per se sufficient to
justify denial of probate. Impossibility of substitution of
this page is assured not only the fact that the testatrix
and two other witnesses did sign the defective page, but
also by its bearing the coincident imprint of the seal of
the notary public before whom the testament was ratified
by testatrix and all three witnesses. The law should not
be so strictly and literally interpreted as to penalize the
testatrix on account of the inadvertence of a single
witness over whose conduct she had no control, where
the purpose of the law to guarantee the identity of the
testament and its component pages is sufficiently
attained, no intentional or deliberate deviation existed,
and the evidence on record attests to the full observance
of the statutory requisites. Otherwise, as stated in Vda.
de Gil. vs. Murciano, 49 Off. Gaz. 1459, at 1479
(decision on reconsideration) "witnesses may sabotage
the will by muddling or bungling it or the attestation
clause".
That the failure of witness Natividad to sign page three
(3) was entirely through pure oversight is shown by his
own testimony as well as by the duplicate copy of the
will, which bears a complete set of signatures in every
page. The text of the attestation clause and the
acknowledgment before the Notary Public likewise
evidence that no one was aware of the defect at the
time.
This would not be the first time that this Court departs
from a strict and literal application of the statutory
requirements, where the purposes of the law are

!39

otherwise satisfied. Thus, despite the literal tenor of the

law, this Court has held that a testament, with the only
page signed at its foot by testator and witnesses, but not
in the left margin, could nevertheless be probated
(Abangan vs. Abangan, 41 Phil. 476); and that despite
the requirement for the correlative lettering of the pages
of a will, the failure to make the first page either by
letters or numbers is not a fatal defect (Lopez vs. Liboro,
81 Phil. 429). These precedents exemplify the Court's
policy to require satisfaction of the legal requirements in
order to guard against fraud and bid faith but without
undue or unnecessary curtailment of the testamentary
privilege.
The appellants also argue that since the original of the
will is in existence and available, the duplicate (Exh. A-1)
is not entitled to probate. Since they opposed probate of
original because it lacked one signature in its third page,
it is easily discerned that oppositors-appellants run here
into a dilemma; if the original is defective and invalid,
then in law there is no other will but the duly signed
carbon duplicate (Exh. A-1), and the same is probatable.
If the original is valid and can be probated, then the
objection to the signed duplicate need not be
considered, being superfluous and irrelevant. At any
rate, said duplicate, Exhibit A-1, serves to prove that the
omission of one signature in the third page of the original
testament was inadvertent and not intentional.
That the carbon duplicate, Exhibit A-1, was produced
and admitted without a new publication does not affect
the jurisdiction of the probate court, already conferred by
the original publication of the petition for probate. The
amended petition did not substantially alter the one first
filed, but merely supplemented it by disclosing the
existence of the duplicate, and no showing is made that
new interests were involved (the contents of Exhibit A
and A-1 are admittedly identical); and appellants were
duly notified of the proposed amendment. It is nowhere
proved or claimed that the amendment deprived the
appellants of any substantial right, and we see no error
in admitting the amended petition.
IN VIEW OF THE FOREGOING, the decision appealed
from is affirmed, with costs against appellants.
G.R. No. 123486

August 12, 1999

EUGENIA RAMONAL CODOY, and MANUEL

RAMONAL, petitioners,
vs.EVANGELINE R. CALUGAY, JOSEPHINE
SALCEDO, and UEFEMIA PATIGAS, respondents.
Before us is a petition for review on certiorari of the
decision of the Court of Appeals1 and its resolution
denying reconsideration, ruling:
Upon the unrebutted testimony of appellant
Evangeline Calugay and witness Matilde
Ramonal Binanay, the authenticity of testators
holographic will has been established and the
handwriting and signature therein (exhibit S) are
hers, enough to probate said will. Reversal of
the judgment appealed from and the probate of
the holographic will in question be called for. The

rule is that after plaintiff has completed

presentation of his evidence and the defendant
files a motion for judgment on demurrer to
evidence on the ground that upon the facts and
the law plaintiff has shown no right to relief, if the
motion is granted and the order to dismissal is
reversed on appeal, the movant loses his right to
present evidence in his behalf (Sec, 1 Rule 35
Revised Rules of Court). Judgment may,
therefore, be rendered for appellant in the
instant case.
Wherefore, the order appealed from is
REVERSED and judgment rendered allowing
the probate of the holographic will of the testator
Matilde Seo Vda. de Ramonal.2
The facts are as follows:
On April 6, 1990, Evangeline Calugay, Josephine
Salcedo and Eufemia Patigas, devisees and legatees of
the holographic will of the deceased Matilde Seo Vda.
de Ramonal, filed with the Regional Trial Court, Misamis
Oriental, Branch 18, a petition3 for probate of the
holographic will of the deceased, who died on January
16, 1990.
In the petition, respondents claimed that the deceased
Matilde Seo Vda. de Ramonal, was of sound and
disposing mind when she executed the will on August
30, 1978, that there was no fraud, undue influence, and
duress employed in the person of the testator, and will
was written voluntarily.
The assessed value of the decedent's property, including
all real and personal property was about P400,000.00, at
the time of her death.4
On June 28, 1990, Eugenia Ramonal Codoy and Manuel
Ramonal filed an opposition5 to the petition for probate,
alleging that the holographic will was a forgery and that
the same is even illegible. This gives an impression that
a "third hand" of an interested party other than the "true
hand" of Matilde Seo Vda. de Ramonal executed the
holographic will.
Petitioners argued that the repeated dates incorporated
or appearing on will after every disposition is out of the
ordinary. If the deceased was the one who executed the
will, and was not forced, the dates and the signature
should appear at the bottom after the dispositions, as
regularly done and not after every disposition. And
assuming that the holographic will is in the handwriting
of the deceased, it was procured by undue and improper
pressure and influence on the part of the beneficiaries,
or through fraud and trickery.1wphi1.nt
Respondents presented six (6) witnesses and various
documentary evidence. Petitioners instead of presenting
their evidence, filed a demurrer6 to evidence, claiming
that respondents failed to establish sufficient factual and
legal basis for the probate of the holographic will of the
deceased Matilde Seo Vda. de Ramonal.
On November 26, 1990, the lower Court issued an order,
the dispositive portion of which reads:

!40

WHEREFORE, in view of the foregoing

consideration, the Demurrer to Evidence having
being well taken, same is granted, and the
petition for probate of the document (Exhibit "S")
on the purported Holographic Will of the late
Matilde Seo Vda. de Ramonal, is denied for
insufficiency of evidence and lack of merits.7
On December 12, 1990, respondents filed a notice of
appeal,8 and in support of their appeal, the respondents
once again reiterated the testimony of the following
witnesses, namely: (1) Augusto Neri; (2) Generosa
Senon; (3) Matilde Ramonal Binanay; (4) Teresita
Vedad; (5) Fiscal Rodolfo Waga; and (6) Evangeline
Calugay.
To have a clear understanding of the testimonies of the
witnesses, we recite an account of their testimonies.
Augusto Neri, Clerk of Court, Court of First Instance of
Misamis Oriental, where the special proceedings for the
probate of the holographic will of the deceased was filed.
He produced and identified the records of the case. The
documents presented bear the signature of the
deceased, Matilde Seo Vda. de Ramonal, for the
purpose of laying the basis for comparison of the
handwriting of the testatrix, with the writing treated or
admitted as genuine by the party against whom the
evidence is offered.

testified that the signature appearing in the holographic

will was similar to that of the deceased, Matilde Seo
Vda. de Ramonal, but he can not be sure.
The fifth witness presented was Mrs. Teresita Vedad, an
employee of the Department of Environment and Natural
Resources, Region 10. She testified that she processed
the application of the deceased for pasture permit and
was familiar with the signature of the deceased, since
the signed documents in her presence, when the latter
was applying for pasture permit.
Finally, Evangeline Calugay, one of the respondents,
testified that she had lived with the deceased since birth,
and was in fact adopted by the latter. That after a long
period of time she became familiar with the signature of
the deceased. She testified that the signature appearing
in the holographic will is the true and genuine signature
of Matilde Seo Vda. de Ramonal.
The holographic will which was written in Visayan, is
translated in English as follows:
Instruction
August 30, 1978
1. My share at Cogon, Raminal Street, for
Evangeline Calugay.
(Sgd) Matilde Vda de Ramonal

Generosa Senon, election registrar of Cagayan de Oro,

was presented to produced and identify the voter's
affidavit of the decedent. However, the voters' affidavit
was not produced for the same was already destroyed
and no longer available.

August 30, 1978

Matilde Ramonal Binanay, testified that the deceased

Matilde Seo Vda. de Ramonal was her aunt, and that
after the death of Matilde's husband, the latter lived with
her in her parent's house for eleven (11) years from 1958
to 1969. During those eleven (11) years of close
association the deceased, she acquired familiarity with
her signature and handwriting as she used to
accompany her (deceased Matilde Seo Vda. de
Ramonal) in collecting rentals from her various tenants
of commercial buildings, and deceased always issued
receipts. In addition to this, she (witness Matilde
Binanay) assisted the deceased in posting the records of
the accounts, and carried personal letters of the
deceased to her creditors.

August 30, 1978

Matilde Ramonal Binanay further testified that at the time

of the death of Matilde Vda. de Ramonal, she left a
holographic will dated August 30, 1978, which was
personally and entirely written, dated and signed, by the
deceased and that all the dispositions therein, the dates,
and the signatures in said will, were that of the
deceased.
Fiscal Rodolfo Waga testified that before he was
appointed City Fiscal of Cagayan de Oro, he was a
practicing lawyer, and handled all the pleadings and
documents signed by the deceased in connection with
the proceedings of her late husband, as a result of which
he is familiar with the handwriting of the latter. He

2. Josefina Salcedo must be given 1,500 square

meters at Pinikan Street.
(Sgd) Matilde Vda de Ramonal
3. My jewelry's shall be divided among:
1. Eufemia Patigas
2. Josefina Salcedo
3. Evangeline Calugay
(Sgd) Matilde Vda de Ramonal
August 30, 1978
4. I bequeath my one (1) hectare land at
Mandumol, Indahag to Evangeline R. Calugay
(Sgd) Matilde Vda de Ramonal
August 30, 1978
5. Give the 2,500 Square Meters at Sta. Cruz
Ramonal Village in favor of Evangeline R.
Calugay, Helen must continue with the Sta.
Cruz, once I am no longer around.
(Sgd) Matilde Vda de Ramonal
August 30, 1978
6. Bury me where my husband Justo is ever
buried.
(Sgd) Matilde Vda de Ramonal
August 30, 1978

!41

Gene and Manuel:

Follow my instruction in order that I will rest
peacefully.
Mama
Matilde Vda de Ramonal
On October 9, 1995, the Court of Appeals, rendered
decision9 ruling that the appeal was meritorious. Citing
the decision in the case of Azaola vs. Singson, 109 Phil.
102, penned by Mr. Justice J. B. L. Reyes, a recognized
authority in civil law, the Court of Appeals held:
. . . even if the genuineness of the holographic
will were contested, we are of the opinion that
Article 811 of our present civil code can not be
interpreted as to require the compulsory
presentation of three witnesses to identify the
handwriting of the testator, under penalty of
having the probate denied. Since no witness
may have been present at the execution of the
holographic will, none being required by law (art.
810, new civil code), it becomes obvious that the
existence of witnesses possessing the requisite
qualifications is a matter beyond the control of
the proponent. For it is not merely a question of
finding and producing any three witnesses; they
must be witnesses "who know the handwriting
and signature of the testator" and who can
declare (truthfully, of course, even if the law
does not express) "that the will and the signature
are in the handwriting of the testator." There may
be no available witness acquainted with the
testator's hand; or even if so familiarized, the
witness maybe unwilling to give a positive
opinion. Compliance with the rule of paragraph 1
of article 811 may thus become an impossibility.
That is evidently the reason why the second
paragraph of article 811 prescribes that
in the absence of any competent witness
referred to in the preceding paragraph, and if the
court deems it necessary, expert testimony may
be resorted to.
As can be see, the law foresees, the possibility
that no qualified witness ma be found (or what
amounts to the same thing, that no competent
witness may be willing to testify to the
authenticity of the will), and provides for resort to
expert evidence to supply the deficiency.
It may be true that the rule of this article
(requiring that three witnesses be presented if
the will is contested and only one if no contest is
had) was derived from the rule established for
ordinary testaments (CF Cabang vs. Delfianado,
45 PHIL 291; Tolentino v. Francisco, 57 PHIL
742). But it can not be ignored that the
requirement can be considered mandatory only
in case of ordinary testaments, precisely
because the presence of at least three
witnesses at the execution of ordinary wills is
made by law essential to their validity (Art. 805).

Where the will is holographic, no witness need

be present (art. 10), and the rule requiring
production of three witnesses must be deemed
merely permissive if absurd results are to be
avoided.
Again, under Art. 811, the resort to expert
evidence is conditioned by the words "if the
court deem it necessary", which reveal that what
the law deems essential is that the court should
be convinced of the will's authenticity. Where the
prescribed number of witnesses is produced and
the court is convinced by their testimony that the
will is genuine, it may consider it unnecessary to
call for expert evidence. On the other hand, if no
competent witness is available, or none of those
produced is convincing, the court may still, and
in fact it should resort to handwriting experts.
The duty of the court, in fine, is to exhaust all
available lines of inquiry, for the state is as much
interested as the proponent that the true
intention of the testator be carried into effect.
Paraphrasing Azaola vs. Singson, even if the
genuineness of the holographic will were
contested, Article 811 of the civil code cannot be
interpreted as to require the compulsory
presentation of three witnesses to identify the
handwriting of the testator, under penalty of the
having the probate denied. No witness need be
present in the execution of the holographic will.
And the rule requiring the production of three
witnesses is merely permissive. What the law
deems essential is that the court is convinced of
the authenticity of the will. Its duty is to exhaust
all available lines of inquiry, for the state is as
much interested in the proponent that the true
intention of the testator be carried into effect.
And because the law leaves it to the trial court to
decide if experts are still needed, no unfavorable
inference can be drawn from a party's failure to
offer expert evidence, until and unless the court
expresses dissatisfaction with the testimony of
the lay witnesses.10
According to the Court of Appeals, Evangeline Calugay,
Matilde Ramonal Binanay and other witnesses definitely
and in no uncertain terms testified that the handwriting
and signature in the holographic will were those of the
testator herself.
Thus, upon the unrebutted testimony of appellant
Evangeline Calugay and witness Matilde Ramonal
Binanay, the Court of Appeals sustained the authenticity
of the holographic will and the handwriting and signature
therein, and allowed the will to probate.
Hence, this petition.
The petitioners raise the following issues:
(1) Whether or not the ruling of the case
of Azaola vs. Singson, 109 Phil. 102, relied upon
by the respondent Court of Appeals, was
applicable to the case.

!42

(2) Whether or not the Court of Appeals erred in

holding that private respondents had been able
to present credible evidence to that the date,
text, and signature on the holographic will
written entirely in the hand of the testatrix.

A. From the land rentals and commercial

buildings at Pabayo-Gomez streets.12

(3) Whether or not the Court of Appeals erred in

not analyzing the signatures in the holographic
will of Matilde Seo Vda. de Ramonal.

A. I sometimes accompany her.

xxx

Q. In collecting rentals does she issue

receipts?
A. Yes, sir.13

We are convinced, based on the language used, that

Article 811 of the Civil Code is mandatory. The word
"shall" connotes a mandatory order. We have ruled that
"shall" in a statute commonly denotes an imperative
obligation and is inconsistent with the idea of discretion
and that the presumption is that the word "shall," when
used in a statute is mandatory.11

A. Yes, sir.

So, we believe that the paramount consideration in the

present petition is to determine the true intent of the
deceased. An exhaustive and objective consideration of
the evidence is imperative to establish the true intent of
the testator.
It will be noted that not all the witnesses presented by
the respondents testified explicitly that they were familiar
with the handwriting of testator. In the case of Augusto
Neri, clerk of court, Court of First Instance, Misamis
Oriental, he merely identified the record of Special
Proceedings No. 427 before said court. He was not
presented to declare explicitly that the signature
appearing in the holographic was that of the deceased.
Generosa E. Senon, the election registrar of Cagayan de
Oro City, was presented to identify the signature of the
deceased in the voter's affidavit, which was not even
produced as it was no longer available.
Matilde Ramonal Binanay, on the other hand, testified
that:

xxx

Q. Who sometime accompany her?

In this petition, the petitioners ask whether the provisions

of Article 811 of the Civil Code are permissive or
mandatory. The article provides, as a requirement for the
probate of a contested holographic will, that at least
three witnesses explicitly declare that the signature in
the will is the genuine signature of the testator.
1wphi1.nt

Laws are enacted to achieve a goal intended and to

guide against an evil or mischief that aims to prevent. In
the case at bar, the goal to achieve is to give effect to
the wishes of the deceased and the evil to be prevented
is the possibility that unscrupulous individuals who for
their benefit will employ means to defeat the wishes of
the testator.

xxx

xxx

xxx

xxx

Q. Showing to you the receipt dated 23

October 1979, is this the one you are referring to
as one of the receipts which she issued to
them?
Q. Now there is that signature of Matilde vda.
De Ramonal, whose signature is that Mrs.
Binanay?
A. Matilde vda. De Ramonal.
Q. Why do you say that is the signature of
Matilde Vda. De Ramonal?
A. I am familiar with her signature.
Q. Now, you tell the court Mrs. Binanay,
whether you know Matilde vda de Ramonal kept
records of the accounts of her tenants?
A. Yes, sir.
Q. Why do you say so?
A. Because we sometimes post a record of
accounts in behalf of Matilde Vda. De Ramonal.
Q. How is this record of accounts made? How
is this reflected?
A. In handwritten.14
xxx

xxx

xxx

Q. In addition to collection of rentals, posting

records of accounts of tenants and deed of sale
which you said what else did you do to acquire
familiarity of the signature of Matilde Vda De
Ramonal?
A. Posting records.
Q. Aside from that?
A. Carrying letters.
Q. Letters of whom?

Q. And you said for eleven (11) years Matilde

Vda de Ramonal resided with your parents at
Pinikitan, Cagayan de Oro City. Would you tell
the court what was your occupation or how did
Matilde Vda de Ramonal keep herself busy that
time?

A. Matilde.

A. Collecting rentals.

Q. You testified that at time of her death she

left a will. I am showing to you a document with

Q. From where?

Q. To whom?
A. To her creditors.15
xxx

xxx

xxx

!43

its title "tugon" is this the document you are

referring to?

petitioners and revealing it only after the death of Matilde

Seo Vda. de Ramonal.

A. Yes, sir.

In the testimony of Ms. Binanay, the following were

established:

Q. Showing to you this exhibit "S", there is that

handwritten "tugon", whose handwriting is this?
A. My Aunt.
Q. Why do you say this is the handwriting of
your aunt?
A. Because I am familiar with her signature.16
What Ms. Binanay saw were pre-prepared receipts and
letters of the deceased, which she either mailed or gave
to her tenants. She did not declare that she saw the
deceased sign a document or write a note.
Further, during the cross-examination, the counsel for
petitioners elicited the fact that the will was not found in
the personal belongings of the deceased but was in the
possession of Ms. Binanay. She testified that:
Q. Mrs. Binanay, when you were asked by
counsel for the petitioners if the late Matilde
Seno vda de Ramonal left a will you said, yes?
A. Yes, sir.
Q. Who was in possession of that will?
A. I.

Q. Now, in 1978 Matilde Seno Vda de Ramonal

was not yet a sickly person is that correct?
A. Yes, sir.
Q. She was up and about and was still
uprightly and she could walk agilely and she
could go to her building to collect rentals, is that
correct?
A. Yes, sir.19
xxx

A. Yes, a little. The letter L is continuous.

Q. And also in Matilde the letter L is continued
to letter D?
A. Yes, sir.
Q. Again the third signature of Matilde Vda de
Ramonal the letter L in Matilde is continued
towards letter D.
A. Yes, sir.

A. It was in my mother's possession.

A. Yes, sir.20

A. Sorry, yes.
Q. And when did you come into possession
since as you said this was originally in the
possession of your mother?
A. 1985.17
xxx

xxx

xxx

Q. Now, Mrs. Binanay was there any particular

reason why your mother left that will to you and
therefore you have that in your possession?
A. It was not given to me by my mother, I took
that in the aparador when she died.
Q. After taking that document you kept it with
you?
A. I presented it to the fiscal.

xxx

Q. Now, let us go to the third signature of

Matilde Ramonal. Do you know that there are
retracings in the word Vda.?

Q. Since when did you have the possession of

the will?
Q. So, it was not in your possession?

xxx

Q. And there is a retracing in the word Vda.?

xxx

xxx

xxx

Q. Now, that was 1979, remember one year

after the alleged holographic will. Now, you
identified a document marked as Exhibit R. This
is dated January 8, 1978 which is only about
eight months from August 30, 1978. Do you
notice that the signature Matilde Vda de
Ramonal is beautifully written and legible?
A. Yes, sir the handwriting shows that she was
very exhausted.
Q. You just say that she was very exhausted
while that in 1978 she was healthy was not
sickly and she was agile. Now, you said she was
exhausted?
A. In writing.

A. Just to seek advice.

Q. How did you know that she was exhausted

when you were not present and you just tried to
explain yourself out because of the apparent
inconsistencies?

Q. Advice of what?

A. That was I think. (sic).

Q. For what purpose?

A. About the

will.18

In her testimony it was also evident that Ms. Binanay

kept the fact about the will from petitioners, the legally
adopted children of the deceased. Such actions put in
issue her motive of keeping the will a secret to

Q. Now, you already observed this signature

dated 1978, the same year as the alleged
holographic will. In exhibit I, you will notice that
there is no retracing; there is no hesitancy and
the signature was written on a fluid

!44

movement. . . . And in fact, the name Eufemia R.

Patigas here refers to one of the petitioners?

Actually I am related to the husband by

consanguinity.

A. Yes, sir.

Q. Can you tell the name of the husband?

Q. You will also notice Mrs. Binanay that it is

not only with the questioned signature appearing
in the alleged holographic will marked as Exhibit
X but in the handwriting themselves, here you
will notice the hesitancy and tremors, do you
notice that?

A. The late husband is Justo Ramonal.24

A. Yes, sir.21

A. As far as I know they have no legitimate

children.25

Evangeline Calugay declared that the holographic will

was written, dated and signed in the handwriting of the
testator. She testified that:
Q. You testified that you stayed with the house
of the spouses Matilde and Justo Ramonal for
the period of 22 years. Could you tell the court
the services if any which you rendered to
Matilde Ramonal?

xxx

xxx

xxx

Q. Can you tell this court whether the spouses

Justo Ramonal and Matilde Ramonal have
legitimate children?

xxx

xxx

xxx

Q. You said after becoming a lawyer you

practice your profession? Where?
A. Here in Cagayan de Oro City.
Q. Do you have services rendered with the
deceased Matilde vda de Ramonal?

A. During my stay I used to go with her to the

church, to market and then to her transactions.

A. I assisted her in terminating the partition, of

properties.

Q. What else? What services that you

rendered?

Q. When you said assisted, you acted as her

counsel? Any sort of counsel as in what case is
that, Fiscal?

A. After my college days I assisted her in going

to the bank, paying taxes and to her lawyer.
Q. What was your purpose of going to her
lawyer?
A. I used to be her personal driver.
Q. In the course of your stay for 22 years did
you acquire familiarity of the handwriting of
Matilde Vda de Ramonal?
A. Yes, sir.
Q. How come that you acquired familiarity?
A. Because I lived with her since birth.22
xxx

xxx

xxx

Q. Now, I am showing to you Exhibit S which is

captioned "tugon" dated Agosto 30, 1978 there
is a signature here below item No. 1, will you tell
this court whose signature is this?
A. Yes, sir, that is her signature.
Q. Why do you say that is her signature?
A. I am familiar with her signature.23
So, the only reason that Evangeline can give as to why
she was familiar with the handwriting of the deceased
was because she lived with her since birth. She never
declared that she saw the deceased write a note or sign
a document.
The former lawyer of the deceased, Fiscal Waga,
testified that:
Q. Do you know Matilde Vda de Ramonal?
A. Yes, sir I know her because she is my
godmother the husband is my godfather.

A. It is about the project partition to terminate

the property, which was under the court before.26
xxx

xxx

xxx

Q. Appearing in special proceeding no. 427 is

the amended inventory which is marked as
exhibit N of the estate of Justo Ramonal and
there appears a signature over the type written
word Matilde vda de Ramonal, whose signature
is this?
A. That is the signature of Matilde Vda de
Ramonal.
Q. Also in exhibit n-3, whose signature is this?
A. This one here that is the signature of Mrs.
Matilde vda de Ramonal.27
xxx

xxx

xxx

Q. Aside from attending as counsel in that

Special Proceeding Case No. 427 what were the
other assistance wherein you were rendering
professional service to the deceased Matilde
Vda de Ramonal?
A. I can not remember if I have assisted her in
other matters but if there are documents to show
that I have assisted then I can recall.28
xxx

xxx

xxx

Q. Now, I am showing to you exhibit S which is

titled "tugon", kindly go over this document,
Fiscal Waga and tell the court whether you are
familiar with the handwriting contained in that
document marked as exhibit "S"?
A. I am not familiar with the handwriting.

!45

Q. This one, Matilde Vda de Ramonal, whose

signature is this?
A. I think this signature here it seems to be the
signature of Mrs. Matilde vda de Ramonal.
Q. Now, in item No. 2 there is that signature
here of Matilde Vda de Ramonal, can you tell
the court whose signature is this?
A. Well, that is similar to that signature
appearing in the project of partition.
Q. Also in item no. 3 there is that signature
Matilde Vda de Ramonal, can you tell the court
whose signature is that?
A. As I said, this signature also seems to be the
signature of Matilde vda de Ramonal.
Q. Why do you say that?
A. Because there is a similarity in the way it is
being written.
Q. How about this signature in item no. 4, can
you tell the court whose signature is this?
A. The same is true with the signature in item
no. 4. It seems that they are similar.29
xxx

xxx

xxx

Q. Mr. Prosecutor, I heard you when you said

that the signature of Matilde Vda de Ramonal
Appearing in exhibit S seems to be the signature
of Matilde vda de Ramonal?
A. Yes, it is similar to the project of partition.
Q. So you are not definite that this is the
signature of Matilde vda de Ramonal. You are
merely supposing that it seems to be her
signature because it is similar to the signature of
the project of partition which you have made?
A. That is true.30
From the testimonies of these witnesses, the Court of
Appeals allowed the will to probate and disregard the
requirement of three witnesses in case of contested
holographic will, citing the decision in Azaola
vs. Singson,31ruling that the requirement is merely
directory and not mandatory.
In the case of Ajero vs. Court of Appeals,32 we said that
"the object of the solemnities surrounding the execution
of wills is to close the door against bad faith and fraud, to
avoid substitution of wills and testaments and to
guaranty their truth and authenticity. Therefore, the laws
on this subject should be interpreted in such a way as to
attain these primordial ends. But on the other hand, also
one must not lose sight of the fact that it is not the object
of the law to restrain and curtail the exercise of the right
to make a will.
However, we cannot eliminate the possibility of a false
document being adjudged as the will of the testator,
which is why if the holographic will is contested, that law
requires three witnesses to declare that the will was in
the handwriting of the deceased.

The will was found not in the personal belongings of the

deceased but with one of the respondents, who kept it
even before the death of the deceased. In the testimony
of Ms. Binanay, she revealed that the will was in her
possession as early as 1985, or five years before the
death of the deceased.
There was no opportunity for an expert to compare the
signature and the handwriting of the deceased with other
documents signed and executed by her during her
lifetime. The only chance at comparison was during the
cross-examination of Ms. Binanay when the lawyer of
petitioners asked Ms. Binanay to compare the
documents which contained the signature of the
deceased with that of the holographic will and she is not
a handwriting expert. Even the former lawyer of the
deceased expressed doubts as to the authenticity of the
signature in the holographic will.
A visual examination of the holographic will convince us
that the strokes are different when compared with other
documents written by the testator. The signature of the
testator in some of the disposition is not readable. There
were uneven strokes, retracing and erasures on the will.
Comparing the signature in the holographic will dated
August 30, 1978,33 and the signatures in several
documents such as the application letter for pasture
permit dated December 30, 1980,34 and a letter dated
June 16, 1978,35the strokes are different. In the letters,
there are continuous flows of the strokes, evidencing
that there is no hesitation in writing unlike that of the
holographic will. We, therefore, cannot be certain that
ruling holographic will was in the handwriting by the
deceased.
IN VIEW WHEREOF, the decision appealed from is SET
ASIDE. The records are ordered remanded to the court
of origin with instructions to allow petitioners to adduce
evidence in support of their opposition to the probate of
the holographic will of the deceased Matilde Seo vda.
de Ramonal.1wphi1.nt
No costs.
SO ORDERED.
G.R. No. L-58509 December 7, 1982
IN THE MATTER OF THE PETITION TO APPROVE
THE WILL OF RICARDO B. BONILLA deceased,
MARCELA RODELAS, petitioner-appellant,
vs.AMPARO ARANZA, ET AL., oppositorsappellees, ATTY. LORENZO SUMULONG, intervenor.
This case was certified to this Tribunal by the Court of
Appeals for final determination pursuant to Section 3,
Rule 50 of the Rules of Court.
As found by the Court of Appeals:
... On January 11, 1977, appellant filed a
petition with the Court of First Instance
of Rizal for the probate of the
holographic will of Ricardo B. Bonilla
and the issuance of letters testamentary
in her favor. The petition, docketed as

!46

Sp. Proc. No. 8432, was opposed by the

appellees Amparo Aranza Bonilla,
Wilferine Bonilla Treyes Expedita Bonilla
Frias and Ephraim Bonilla on the
following grounds:
(1) Appellant was estopped from
claiming that the deceased left a will by
failing to produce the will within twenty
days of the death of the testator as
required by Rule 75, section 2 of the
Rules of Court;
(2) The alleged copy of the alleged
holographic will did not contain a
disposition of property after death and
was not intended to take effect after
death, and therefore it was not a will
(3) The alleged hollographic will
itself,and not an alleged copy thereof,
must be produced, otherwise it would
produce no effect, as held in Gam v.
Yap, 104 Phil. 509; and
(4 ) The deceased did not leave any will,
holographic or otherwise, executed and
attested as required by law.
The appellees likewise moved for the
consolidation of the case with another
case Sp. Proc. No, 8275). Their motion
was granted by the court in an order
dated April 4, 1977.
On November 13, 1978, following the
consolidation of the cases, the
appellees moved again to dismiss the
petition for the probate of the will. They
argued that:
(1) The alleged holographic was not a
last will but merely an instruction as to
the management and improvement of
the schools and colleges founded by
decedent Ricardo B. Bonilla; and
(2) Lost or destroyed holographic wills
cannot be proved by secondary
evidence unlike ordinary wills.
Upon opposition of the appellant, the
motion to dismiss was denied by the
court in its order of February 23, 1979.
The appellees then filed a motion for
reconsideration on the ground that the
order was contrary to law and settled
pronouncements and rulings of the
Supreme Court, to which the appellant
in turn filed an opposition. On July 23,
1979, the court set aside its order of
February 23, 1979 and dismissed the
petition for the probate of the will of
Ricardo B. Bonilla. The court said:
... It is our considered opinion that once
the original copy of the holographic will

is lost, a copy thereof cannot stand in

lieu of the original.
In the case of Gam vs. Yap, 104 Phil.
509, 522, the Supreme Court held that
'in the matter of holographic wills the
law, it is reasonable to suppose, regards
the document itself as the material proof
of authenticity of said wills.
MOREOVER, this Court notes that the
alleged holographic will was executed
on January 25, 1962 while Ricardo B.
Bonilla died on May 13, 1976. In view of
the lapse of more than 14 years from
the time of the execution of the will to
the death of the decedent, the fact that
the original of the will could not be
located shows to our mind that the
decedent had discarded before his
death his allegedly missing Holographic
Will.
Appellant's motion for reconsideration was denied.
Hence, an appeal to the Court of Appeals in which it is
contended that the dismissal of appellant's petition is
contrary to law and well-settled jurisprudence.
On July 7, 1980, appellees moved to forward the case to
this Court on the ground that the appeal does not involve
question of fact and alleged that the trial court committed
the following assigned errors:
I. THE LOWER COURT ERRED IN
HOLDING THAT A LOST
HOLOGRAPHIC WILL MAY NOT BE
PROVED BY A COPY THEREOF;
II. THE LOWER COURT ERRED IN
HOLDING THAT THE DECEDENT HAS
DISCARDED BEFORE HIS DEATH
THE MISSING HOLOGRAPHIC WILL;
III. THE LOWER COURT ERRED IN
DISMISSING APPELLANT'S WILL.
The only question here is whether a holographic will
which was lost or cannot be found can be proved by
means of a photostatic copy. Pursuant to Article 811 of
the Civil Code, probate of holographic wills is the
allowance of the will by the court after its due execution
has been proved. The probate may be uncontested or
not. If uncontested, at least one Identifying witness is
required and, if no witness is available, experts may be
resorted to. If contested, at least three Identifying
witnesses are required. However, if the holographic will
has been lost or destroyed and no other copy is
available, the will can not be probated because the best
and only evidence is the handwriting of the testator in
said will. It is necessary that there be a comparison
between sample handwritten statements of the testator
and the handwritten will. But, a photostatic copy or xerox
copy of the holographic will may be allowed because
comparison can be made with the standard writings of
the testator. In the case of Gam vs. Yap, 104 PHIL. 509,
the Court ruled that "the execution and the contents of a

!47

lost or destroyed holographic will may not be proved by

the bare testimony of witnesses who have seen and/or
read such will. The will itself must be presented;
otherwise, it shall produce no effect. The law regards the
document itself as material proof of authenticity." But, in
Footnote 8 of said decision, it says that "Perhaps it may
be proved by a photographic or photostatic copy. Even a
mimeographed or carbon copy; or by other similar
means, if any, whereby the authenticity of the
handwriting of the deceased may be exhibited and
tested before the probate court," Evidently, the
photostatic or xerox copy of the lost or destroyed
holographic will may be admitted because then the
authenticity of the handwriting of the deceased can be
determined by the probate court.
WHEREFORE, the order of the lower court dated
October 3, 1979, denying appellant's motion for
reconsideration dated August 9, 1979, of the Order
dated July 23, 1979, dismissing her petition to approve
the will of the late Ricardo B. Bonilla, is hereby SET
ASIDE.
SO ORDERED.
G.R. Nos. 75005-06 February 15, 1990
JOSE RIVERA petitioner,
vs.INTERMEDIATE APPELLATE COURT and
ADELAIDO J. RIVERA, respondents.
Was there only one Venancio Rivera in Mabalacat,
Pampanga, or were there two?
On May 30, 1975, a prominent and wealthy resident of
that town named Venancio Rivera died. On July 28,
1975, Jose Rivera, claiming to be the only surviving
legitimate son of the deceased, filed a petition for the
issuance of letters of administration over Venancio's
estate. Docketed as SP No. 1076, this petition was
opposed by Adelaido J. Rivera, who denied that Jose
was the son of the decedent. Adelaido averred that
Venancio was his father and did not die intestate but in
fact left two holographic wills. 1
On November 7, 1975, Adelaido J. Rivera filed, also with
the Regional Trial Court of Angeles City, a petition for the
probate of the holographic wills. Docketed as SP No.
1091, this petition was in turn opposed by Jose Rivera,
who reiterated that he was the sole heir of Venancio's
intestate estate. 2
On November 11, 1975, the two cases were
consolidated. Adelaido J. Rivera was later appointed
special administrator. After joint trial, Judge Eliodoro B.
Guinto found that Jose Rivera was not the son of the
decedent but of a different Venancio Rivera who was
married to Maria Vital. The Venancio Rivera whose
estate was in question was married to Maria Jocson, by
whom he had seven children, including Adelaido. Jose
Rivera had no claim to this estate because the decedent
was not his father. The holographic wills were also
admitted to probate.3
On appeal, the decision of the trial court was affirmed by
the then Intermediate Appellate Court. 4 Its decision is

now the subject of this petition, which urges the reversal

of the respondent court.
In support of his claim that he was the sole heir of the
late Venancio Rivera, Jose sought to show that the said
person was married in 1928 to Maria Vital, who was his
mother. He submitted for this purpose Exhibit A, the
marriage certificate of the couple, and Exhibit B, his own
baptismal certificate where the couple was indicated as
his parents. The petitioner also presented Domingo
Santos, who testified that Jose was indeed the son of
the couple and that he saw Venancio and Jose together
several times. 5 Jose himself stressed that Adelaido
considered him a half-brother and kissed his hand as a
sign of respect whenever they met. He insisted that
Adelaido and his brothers and sisters were illegitimate
children, sired by Venancio with Maria Jocson. 6
Adelaido, for his part, maintained that he and his
brothers and sisters were born to Venancio Rivera and
Maria Jocson, who were legally married and lived as
such for many years. He explained that he could not
present his parents' marriage certificate because the
record of marriages for 1942 in Mabalacat were
destroyed when the town was burned during the war, as
certified by Exhibit 6. 7 He also submitted his own birth
certificate and those of his sisters Zenaida and Yolanda
Rivera, who were each described therein as the
legimitate children of Venancio Rivera and Maria
Jocson. 8 Atty. Regalado P. Morales, then 71 years of
age, affirmed that he knew the deceased and his
parents, Magno Rivera and Gertrudes de los Reyes, and
it was during the Japanese occupation that Venancio
introduced to him Maria Jocson as his wife. 9 To prove
that there were in fact two persons by the same name of
Venancio Rivera, Adelaido offered Venancio Rivera's
baptismal certificate showing that his parents were
Magno Rivera and Gertrudes de los Reyes, 10 as
contrasted with the marriage certificate submitted by
Jose, which indicated that the Venancio Rivera subject
thereof was the son of Florencio Rivera and Estrudez
Reyes. 11 He also denied kissing Jose's hand or
recognizing him as a brother. 12
We find in favor of Adelaido J. Rivera.
It is true that Adelaido could not present his parents'
marriage certificate because, as he explained it, the
marriage records for 1942 in the Mabalacat civil registry
were burned during the war. Even so, he could still rely
on the presumption of marriage, since it is not denied
that Venancio Rivera and Maria Jocson lived together as
husband and wife for many years, begetting seven
children in all during that time.
According to Article 220 of the Civil Code:
In case of doubt, all presumptions favor
the solidarity of the family. Thus every
intendment of the law or fact leans
toward the validity of marriage, the
indissolubility of the marriage bonds, the
legitimacy of children, ... .
The Rules of Court, in Rule 131, provides:

!48

SEC. 3. Disputable presumptions.

The following presumptions are
satisfactory if uncontradicted, but may
be contradicted and overcome by other
evidence:
xxx xxx xxx
(aa) That a man and woman deporting
themselves as husband and wife have
entered into a lawful contract of
marriage.
By contrast, although Jose did present his parents'
marriage certificate, Venancio was described therein as
the son of Florencio Rivera. Presumably, he was not the
same Venancio Rivera described in Exhibit 4, his
baptismal certificate, as the son of Magno Rivera. While
we realize that such baptismal certificate is not
conclusive evidence of Venancio's filiation (which is not
the issue here) it may nonetheless be considered to
determine his real identity. Jose insists that Magno and
Florencio are one and the same person, arguing that it is
not uncommon for a person to be called by different
names. The Court is not convinced. There is no
evidence that Venancio's father was called either Magno
or Florencio. What is more likely is that two or more
persons may live at the same time and bear the same
name, even in the same community. That is what the
courts below found in the cases at bar.
What this Court considers particularly intriguing is why, if
it is true that he was the legitimate son of Venancio
Rivera, Jose did not assert his right as such when his
father was still alive. By his own account, Jose
supported himself and presumably also his mother
Maria Vital as a gasoline attendant and driver for
many years. All the time, his father was residing in the
same town and obviously prospering and available
for support. His alleged father was openly living with
another woman and raising another family, but this was
apparently accepted by Jose without protest, taking no
step whatsoever to invoke his status. If, as he insists, he
and Venancio Rivera were on cordial terms, there is no
reason why the father did not help the son and instead
left Jose to fend for himself as a humble worker while his
other children by Maria Jocson enjoyed a comfortable
life. Such paternal discrimination is difficult to
understand, especially if it is considered assuming the
claims to be true that Jose was the oldest and, by his
own account, the only legitimate child of Venancio
Rivera.
And there is also Maria Vital, whose attitude is no less
incomprehensible. As Venancio's legitimate wife if
indeed she was she should have objected when her
husband abandoned her and founded another family by
another woman, and in the same town at that. Seeing
that the children of Maria Jocson were being raised well
while her own son Jose was practically ignored and
neglected, she nevertheless did not demand for him at
least support, if not better treatment, from his legitimate
father. It is unnatural for a lawful wife to say nothing if
she is deserted in favor of another woman and for a

caring mother not to protect her son's interests from his

wayward father's neglect. The fact is that this forsaken
wife never demanded support from her wealthy if errant
husband. She did not file a complaint for bigamy or
concubinage against Venancio Rivera and Maria Jocson,
the alleged partners in crime and sin. Maria Vital was
completely passive and complaisant.
Significantly, as noted by the respondent court, Maria
Vital was not even presented at the trial to support her
son's allegations that she was the decedent's lawful wife.
Jose says this was not done because she was already
old and bedridden then. But there was no impediment to
the taking of her deposition in her own house. No effort
was made toward this end although her testimony was
vital to the petitioner's cause. Jose dismisses such
testimony as merely "cumulative," but this Court does
not agree. Having alleged that Maria Jocson's marriage
to Venancio Rivera was null and void, Jose had the
burden of proving that serious allegation.
We find from the evidence of record that the respondent
court did not err in holding that the Venancio Rivera who
married Maria Jocson in 1942 was not the same person
who married Maria Vital, Jose's legitimate mother, in
1928. Jose belonged to a humbler family which had no
relation whatsoever with the family of Venancio Rivera
and Maria Vital. This was more prosperous and
prominent. Except for the curious Identity of names of
the head of each, there is no evidence linking the two
families or showing that the deceased Venancio Rivera
was the head of both.
Now for the holographic wills. The respondent court
considered them valid because it found them to have
been written, dated and signed by the testator himself in
accordance with Article 810 of the Civil Code. It also held
there was no necessity of presenting the three witnesses
required under Article 811 because the authenticity of
the wills had not been questioned.
The existence and therefore also the authenticity of the
holographic wills were questioned by Jose Rivera. In his
own petition in SP No. 1076, he declared that Venancio
Rivera died intestate; and in SP No. 1091, he denied the
existence of the holographic wills presented by Adelaido
Rivera for probate. In both proceedings, Jose Rivera
opposed the holographic wills submitted by Adelaido
Rivera and claimed that they were spurious.
Consequently, it may be argued, the respondent court
should have applied Article 811 of the Civil Code,
providing as follows:
In the probate of a holographic will, it
shall be necessary that at least one
witness who knows the handwriting and
signature of the testator explicitly
declare that the will and the signature
are in the handwriting of the testator. If
the will is contested, at least three of
such witnesses shall be required.
The flaw in this argument is that, as we have already
determined, Jose Rivera is not the son of the deceased
Venancio Rivera whose estate is in question. Hence,

!49

being a mere stranger, he had no personality to contest

the wills and his opposition thereto did not have the legal
effect of requiring the three witnesses. The testimony of
Zenaida and Venancio Rivera, Jr., who authenticated the
wills as having been written and signed by their father,
was sufficient.
WHEREFORE, the petition is DENIED and the
challenged decision is AFFIRMED, with costs against
the petitioner.
SO ORDERED.
ART. 814
G.R. No. L-40207 September 28, 1984
ROSA K. KALAW, petitioner,
vs. HON. JUDGE BENJAMIN RELOVA, Presiding
Judge of the CFI of Batangas, Branch VI, Lipa City,
and GREGORIO K. KALAW, respondents.
On September 1, 1971, private respondent GREGORIO
K. KALAW, claiming to be the sole heir of his deceased
sister, Natividad K. Kalaw, filed a petition before the
Court of First Instance of Batangas, Branch VI, Lipa City,
for the probate of her holographic Will executed on
December 24, 1968.
The holographic Will reads in full as follows:
My Last will and Testament
In the name of God, Amen.
I Natividad K. Kalaw Filipino 63years of age, single, and
a resident of Lipa City, being of sound and disposing
mind and memory, do hereby declare thus to be my last
will and testament.
1. It is my will that I'll be burried in the cemetery of the
catholic church of Lipa City. In accordance with the rights
of said Church, and that my executrix hereinafter named
provide and erect at the expose of my state a suitable
monument to perpetuate my memory.
xxx xxx xxx
The holographic Will, as first written, named ROSA K.
Kalaw, a sister of the testatrix as her sole heir. Hence, on
November 10, 1971, petitioner ROSA K. Kalaw opposed
probate alleging, in substance, that the holographic Will
contained alterations, corrections, and insertions without
the proper authentication by the full signature of the
testatrix as required by Article 814 of the Civil Code
reading:
Art. 814. In case of any insertion,
cancellation, erasure or alteration in a
holographic will the testator must
authenticate the same by his full
signature.
ROSA's position was that the holographic Will, as first
written, should be given effect and probated so that she
could be the sole heir thereunder.
After trial, respondent Judge denied probate in an Order,
dated September 3, 197 3, reading in part:

The document Exhibit "C" was

submitted to the National Bureau of
Investigation for examination. The NBI
reported that the handwriting, the
signature, the insertions and/or
additions and the initial were made by
one and the same person.
Consequently, Exhibit "C" was the
handwriting of the decedent, Natividad
K. Kalaw. The only question is whether
the win, Exhibit 'C', should be admitted
to probate although the alterations and/
or insertions or additions abovementioned were not authenticated by
the full signature of the testatrix
pursuant to Art. 814 of the Civil Code.
The petitioner contends that the
oppositors are estopped to assert the
provision of Art. 814 on the ground that
they themselves agreed thru their
counsel to submit the Document to the
NBI FOR EXAMINATIONS. This is
untenable. The parties did not agree,
nor was it impliedly understood, that the
oppositors would be in estoppel.
The Court finds, therefore, that the
provision of Article 814 of the Civil Code
is applicable to Exhibit "C". Finding the
insertions, alterations and/or additions in
Exhibit "C" not to be authenticated by
the full signature of the testatrix
Natividad K. Kalaw, the Court will deny
the admission to probate of Exhibit "C".
WHEREFORE, the petition to probate
Exhibit "C" as the holographic will of
Natividad K. Kalaw is hereby denied.
SO ORDERED.
From that Order, GREGORIO moved for reconsideration
arguing that since the alterations and/or insertions were
the testatrix, the denial to probate of her holographic Will
would be contrary to her right of testamentary
disposition. Reconsideration was denied in an Order,
dated November 2, 1973, on the ground that "Article 814
of the Civil Code being , clear and explicit, (it) requires
no necessity for interpretation."
From that Order, dated September 3, 1973, denying
probate, and the Order dated November 2, 1973 denying
reconsideration, ROSA filed this Petition for Review on
certiorari on the sole legal question of whether or not
theoriginal unaltered text after subsequent alterations
and insertions were voided by the Trial Court for lack of
authentication by the full signature of the testatrix,
should be probated or not, with her as sole heir.
Ordinarily, when a number of erasures, corrections, and
interlineations made by the testator in a holographic Will
litem not been noted under his signature, ... the Will is
not thereby invalidated as a whole, but at most only as
respects the particular words erased, corrected or
interlined.1 Manresa gave an Identical commentary

!50

when he said "la omision de la salvedad no anula el

testamento, segun la regla de jurisprudencia establecida
en la sentencia de 4 de Abril de 1895." 2

acerca del pensamiento del testador, o

constituyan meros accidentes de
ortografia o de purez escrituraria, sin
trascendencia alguna(l).

However, when as in this case, the holographic Will in

dispute had only one substantial provision, which was
altered by substituting the original heir with another, but
which alteration did not carry the requisite of full
authentication by the full signature of the testator, the
effect must be that the entire Will is voided or revoked
for the simple reason that nothing remains in the Will
after that which could remain valid. To state that the Will
as first written should be given efficacy is to disregard
the seeming change of mind of the testatrix. But that
change of mind can neither be given effect because she
failed to authenticate it in the manner required by law by
affixing her full signature,
The ruling in Velasco, supra, must be held confined to
such insertions, cancellations, erasures or alterations in
a holographic Will, which affect only the efficacy of the
altered words themselves but not the essence and
validity of the Will itself. As it is, with the erasures,
cancellations and alterations made by the testatrix
herein, her real intention cannot be determined with
certitude. As Manresa had stated in his commentary on
Article 688 of the Spanish Civil Code, whence Article 814
of the new Civil Code was derived:
... No infringe lo dispuesto en este
articulo del Codigo (el 688) la sentencia
que no declara la nulidad de un
testamento olografo que contenga
palabras tachadas, enmendadas o entre
renglones no salvadas por el testador
bajo su firnia segun previene el parrafo
tercero del mismo, porque, en
realidad, tal omision solo puede afectar
a la validez o eficacia de tales palabras,
y nunca al testamento mismo, ya por
estar esa disposicion en parrafo aparte
de aquel que determine las condiciones
necesarias para la validez del
testamento olografo, ya porque, de
admitir lo contrario, se Ilegaria al
absurdo de que pequefias enmiendas
no salvadas, que en nada afectasen a la
parte esencial y respectiva del
testamento, vinieran a anular este, y ya
porque el precepto contenido en dicho
parrafo ha de entenderse en perfecta
armonia y congruencia con el art. 26 de
la ley del Notariado que declara nulas
las adiciones apostillas
entrerrenglonados, raspaduras y
tachados en las escrituras matrices,
siempre que no se salven en la forma
prevenida, paro no el documento que
las contenga, y con mayor
motivo cuando las palabras
enmendadas, tachadas, o
entrerrenglonadas no tengan
importancia ni susciten duda alguna

Mas para que sea aplicable la doctrina

de excepcion contenida en este ultimo
fallo, es preciso que las tachaduras,
enmiendas o entrerrenglonados sin
salvar saan de pala bras que no
afecter4 alteren ni uarien de modo
substancial la express voluntad del
testador manifiesta en el documento.
Asi lo advierte la sentencia de 29 de
Noviembre de 1916, que declara nulo
un testamento olografo por no estar
salvada por el testador la enmienda del
guarismo ultimo del ao en que fue
extendido 3(Emphasis ours).
WHEREFORE, this Petition is hereby dismissed and the
Decision of respondent Judge, dated September 3,
1973, is hereby affirmed in toto. No costs.
SO ORDERED.
G.R. No. 106720 September 15, 1994
SPOUSES ROBERTO AND THELMA
AJERO, petitioners,
vs.THE COURT OF APPEALS AND CLEMENTE
SAND, respondents.
This is an appeal by certiorari from the Decision of the
Court of
Appeals 1 in CA-G.R. CV No. 22840, dated March 30,
1992, the dispositive portion of which reads;
PREMISES CONSIDERED, the
questioned decision of November 19,
1988 of the trial court is hereby
REVERSED and SET ASIDE, and the
petition for probate is hereby
DISMISSED. No costs.
The earlier Decision was rendered by the RTC
of Quezon City, Branch 94, 2 in Sp. Proc. No.
Q-37171, and the instrument submitted for
probate is the holographic will of the late Annie
Sand, who died on November 25, 1982.
In the will, decedent named as devisees, the following:
petitioners Roberto and Thelma Ajero, private
respondent Clemente Sand, Meriam S. Arong, Leah
Sand, Lilia Sand, Edgar Sand, Fe Sand, Lisa S. Sand,
and Dr. Jose Ajero, Sr., and their children.
On January 20, 1983, petitioners instituted Sp. Proc. No.
Q-37171, for allowance of decedent's holographic will.
They alleged that at the time of its execution, she was of
sound and disposing mind, not acting under duress,
fraud or undue influence, and was in every respect
capacitated to dispose of her estate by will.
Private respondent opposed the petition on the grounds
that: neither the testament's body nor the signature
therein was in decedent's handwriting; it contained

!51

alterations and corrections which were not duly signed

by decedent; and, the will was procured by petitioners
through improper pressure and undue influence. The
petition was likewise opposed by Dr. Jose Ajero. He
contested the disposition in the will of a house and lot
located in Cabadbaran, Agusan Del Norte. He claimed
that said property could not be conveyed by decedent in
its entirety, as she was not its sole owner.
Notwithstanding the oppositions, the trial court admitted
the decedent's holographic will to probate. It found, inter
alia:
Considering then that the probate
proceedings herein must decide only the
question of identity of the will, its due
execution and the testamentary capacity
of the testatrix, this probate court finds
no reason at all for the disallowance of
the will for its failure to comply with the
formalities prescribed by law nor for lack
of testamentary capacity of the testatrix.
For one, no evidence was presented to
show that the will in question is different
from the will actually executed by the
testatrix. The only objections raised by
the oppositors . . . are that the will was
not written in the handwriting of the
testatrix which properly refers to the
question of its due execution, and not to
the question of identity of will. No other
will was alleged to have been executed
by the testatrix other than the will herein
presented. Hence, in the light of the
evidence adduced, the identity of the will
presented for probate must be
accepted, i.e., the will submitted in Court
must be deemed to be the will actually
executed by the testatrix.
xxx xxx xxx
While the fact that it was entirely written,
dated and signed in the handwriting of
the testatrix has been disputed, the
petitioners, however, have satisfactorily
shown in Court that the holographic will
in question was indeed written entirely,
dated and signed in the handwriting of
the testatrix. Three (3) witnesses who
have convincingly shown knowledge of
the handwriting of the testatrix have
been presented and have explicitly and
categorically identified the handwriting
with which the holographic will in
question was written to be the genuine
handwriting and signature of the
testatrix. Given then the aforesaid
evidence, the requirement of the law
that the holographic will be entirely
written, dated and signed in the
handwriting of the testatrix has been
complied with.

xxx xxx xxx

As to the question of the testamentary
capacity of the testratix, (private
respondent) Clemente Sand himself has
testified in Court that the testatrix was
completely in her sound mind when he
visited her during her birthday
celebration in 1981, at or around which
time the holographic will in question was
executed by the testatrix. To be of sound
mind, it is sufficient that the testatrix, at
the time of making the will, knew
the value of the estate to be disposed
of, the proper object of her bounty, and
thecharacter of the testamentary act . . .
The will itself shows that the testatrix
even had detailed knowledge of the
nature of her estate. She even identified
the lot number and square meters of the
lots she had conveyed by will. The
objects of her bounty were likewise
identified explicitly. And considering that
she had even written a nursing book
which contained the law and
jurisprudence on will and succession,
there is more than sufficient showing
that she knows the character of the
testamentary act.
In this wise, the question of identity of
the will, its due execution and the
testamentary capacity of the testatrix
has to be resolved in favor of the
allowance of probate of the will
submitted herein.
Likewise, no evidence was presented to
show sufficient reason for the
disallowance of herein holographic will.
While it was alleged that the said will
was procured by undue and improper
pressure and influence on the part of the
beneficiary or of some other person, the
evidence adduced have not shown any
instance where improper pressure or
influence was exerted on the testatrix.
(Private respondent) Clemente Sand
has testified that the testatrix was still
alert at the time of the execution of the
will, i.e., at or around the time of her
birth anniversary celebration in 1981. It
was also established that she is a very
intelligent person and has a mind of her
own. Her independence of character
and to some extent, her sense of
superiority, which has been testified to in
Court, all show the unlikelihood of her
being unduly influenced or improperly
pressured to make the aforesaid will. It
must be noted that the undue influence
or improper pressure in question herein
only refer to the making of a will and not

!52

as to the specific testamentary

provisions therein which is the proper
subject of another proceeding. Hence,
under the circumstances, this Court
cannot find convincing reason for the
disallowance of the will herein.
Considering then that it is a wellestablished doctrine in the law on
succession that in case of doubt, testate
succession should be preferred over
intestate succession, and the fact that
no convincing grounds were presented
and proven for the disallowance of the
holographic will of the late Annie Sand,
the aforesaid will submitted herein must
be admitted to probate. 3 (Citations
omitted.)
On appeal, said Decision was reversed, and the petition
for probate of decedent's will was dismissed. The Court
of Appeals found that, "the holographic will fails to meet
the requirements for its validity." 4 It held that the
decedent did not comply with Articles 813 and 814 of the
New Civil Code, which read, as follows:
Art. 813: When a number of dispositions
appearing in a holographic will are
signed without being dated, and the last
disposition has a signature and date,
such date validates the dispositions
preceding it, whatever be the time of
prior dispositions.
Art. 814: In case of insertion,
cancellation, erasure or alteration in a
holographic will, the testator must
authenticate the same by his full
signature.
It alluded to certain dispositions in the will which were
either unsigned and undated, or signed but not dated. It
also found that the erasures, alterations and
cancellations made thereon had not been authenticated
by decedent.
Thus, this appeal which is impressed with merit.
Section 9, Rule 76 of the Rules of Court provides that
will shall be disallowed in any of the following cases:
(a) If not executed and attested as
required by law;
(b) If the testator was insane, or
otherwise mentally incapable to make a
will, at the time of its execution;
(c) If it was executed under duress, or
the influence of fear, or threats;
(d) If it was procured by undue and
improper pressure and influence, on the
part of the beneficiary, or of some other
person for his benefit;
(e) If the signature of the testator was
procured by fraud or trick, and he did

not intend that the instrument should be

his will at the time of fixing his signature
thereto.
In the same vein, Article 839 of the New Civil
Code reads:
Art. 839: The will shall be disallowed in
any of the following cases;
(1) If the formalities
required by law have
not been complied with;
(2) If the testator was
insane, or otherwise
mentally incapable of
making a will, at the
time of its execution;
(3) If it was executed
through force or under
duress, or the influence
of fear, or threats;
(4) If it was procured by
undue and improper
pressure and influence,
on the part of the
beneficiary or of some
other person;
(5) If the signature of
the testator was
procured by fraud;
(6) If the testator acted
by mistake or did not
intend that the
instrument he signed
should be his will at the
time of affixing his
signature thereto.
These lists are exclusive; no other grounds can serve to
disallow a will. 5 Thus, in a petition to admit a
holographic will to probate, the only issues to be
resolved are: (1) whether the instrument submitted is,
indeed, the decedent's last will and testament; (2)
whether said will was executed in accordance with the
formalities prescribed by law; (3) whether the decedent
had the necessary testamentary capacity at the time the
will was executed; and, (4) whether the execution of the
will and its signing were the voluntary acts of the
decedent. 6
In the case at bench, respondent court held that the
holographic will of Anne Sand was not executed in
accordance with the formalities prescribed by law. It held
that Articles 813 and 814 of the New Civil Code, ante,
were not complied with, hence, it disallowed the probate
of said will. This is erroneous.
We reiterate what we held in Abangan vs. Abangan, 40
Phil. 476, 479 (1919), that:
The object of the solemnities
surrounding the execution of wills is to

!53

close the door against bad faith and

fraud, to avoid substitution of wills and
testaments and to guaranty their truth
and authenticity. Therefore, the laws on
this subject should be interpreted in
such a way as to attain these primordial
ends. But, on the other hand, also one
must not lose sight of the fact that it is
not the object of the law to restrain and
curtail the exercise of the right to make
a will. So when an interpretation already
given assures such ends, any other
interpretation whatsoever, that adds
nothing but demands more requisites
entirely unnecessary, useless and
frustrative of the testator's last will, must
be disregarded.
For purposes of probating non-holographic wills, these
formal solemnities include the subscription, attestation,
and acknowledgment requirements under Articles 805
and 806 of the New Civil Code.
In the case of holographic wills, on the other hand, what
assures authenticity is the requirement that they be
totally autographic or handwritten by the testator
himself, 7 as provided under Article 810 of the New Civil
Code, thus:
A person may execute a holographic will
which must be entirely written, dated,
and signed by the hand of the testator
himself. It is subject to no other form,
and may be made in or out of the
Philippines, and need not be witnessed.
(Emphasis supplied.)
Failure to strictly observe other formalities will
not result in the disallowance of a holographic
will that is unquestionably handwritten by the
testator.
A reading of Article 813 of the New Civil Code shows
that its requirement affects the validity of the dispositions
contained in the holographic will, but not its probate. If
the testator fails to sign and date some of the
dispositions, the result is that these dispositions cannot
be effectuated. Such failure, however, does not render
the whole testament void.
Likewise, a holographic will can still be admitted to
probate, notwithstanding non-compliance with the
provisions of Article 814. In the case of Kalaw
vs. Relova 132 SCRA 237 242 (1984), this Court held:
Ordinarily, when a number of erasures,
corrections, and interlineations made by
the testator in a holographic Will have
not been noted under his signature, . . .
the Will is not thereby invalidated as a
whole, but at most only as respects the
particular words erased, corrected or
interlined. Manresa gave an identical
commentary when he said "la omission
de la salvedad no anula el testamento,

segun la regla de jurisprudencia

establecida en la sentencia de 4 de Abril
de 1985." 8 (Citations omitted.)
Thus, unless the unauthenticated alterations,
cancellations or insertions were made on the date of the
holographic will or on testator's signature, 9 their
presence does not invalidate the will itself. 10 The lack of
authentication will only result in disallowance of such
changes.
It is also proper to note that the requirements of
authentication of changes and signing and dating of
dispositions appear in provisions (Articles 813 and 814)
separate from that which provides for the necessary
conditions for the validity of the holographic will (Article
810). The distinction can be traced to Articles 678 and
688 of the Spanish Civil Code, from which the present
provisions covering holographic wills are taken. They
read as follows:
Art. 678: A will is called holographic
when the testator writes it himself in the
form and with the requisites required in
Article 688.
Art. 688: Holographic wills may be
executed only by persons of full age.
In order that the will be valid it must be
drawn on stamped paper corresponding
to the year of its execution, written in its
entirety by the testator and signed by
him, and must contain a statement of
the year, month and day of its execution.
If it should contain any erased,
corrected, or interlined words, the
testator must identify them over his
signature.
Foreigners may execute holographic
wills in their own language.
This separation and distinction adds support to the
interpretation that only the requirements of Article 810 of
the New Civil Code and not those found in Articles
813 and 814 of the same Code are essential to the
probate of a holographic will.
The Court of Appeals further held that decedent Annie
Sand could not validly dispose of the house and lot
located in Cabadbaran, Agusan del Norte, in its entirety.
This is correct and must be affirmed.
As a general rule, courts in probate proceedings are
limited to pass only upon the extrinsic validity of the will
sought to be probated. However, in exceptional
instances, courts are not powerless to do what the
situation constrains them to do, and pass upon certain
provisions of the will. 11 In the case at bench, decedent
herself indubitably stated in her holographic will that the
Cabadbaran property is in the name of her late father,
John H. Sand (which led oppositor Dr. Jose Ajero to
question her conveyance of the same in its entirety).
Thus, as correctly held by respondent court, she cannot

!54

validly dispose of the whole property, which she shares

with her father's other heirs.
IN VIEW WHEREOF, the instant petition is GRANTED.
The Decision of the Court of Appeals in CA-G.R. CV No.
22840, dated March 30, 1992, is REVERSED and SET
ASIDE, except with respect to the invalidity of the
disposition of the entire house and lot in Cabadbaran,
Agusan del Norte. The Decision of the Regional Trial
Court of Quezon City, Branch 94 in Sp. Proc. No.
Q-37171, dated November 19, 1988, admitting to
probate the holographic will of decedent Annie Sand, is
hereby REINSTATED, with the above qualification as
regards the Cabadbaran property. No costs.
SO ORDERED.
G.R. No. L-23875 May 27, 1977
TESTATE ESTATE OF THE LATE GREGORIO
VENTURA: MARIA VENTURA, executrixappellant, MIGUEL VENTURA and JUANA
CARDOVA, Heirs,
vs.MERCEDES VENTURA, and her husband PEDRO
D. CORPUZ, and GREGORIA VENTURA and her
husband EXEQUIEL VICTORIO, oppositors-appellees.
Appeal from the orders entered by the Court of First
Instance of Nueva Ecija (Guimba Branch) in Special
Proceedings No. 812, Testate Estate of the Late
Gregorio Ventura, on February 26, 1964 and June 11,
1964 granting the motion of appellee Mercedes Ventura
to annul the institution of heirs made in the will of the
deceased, which was probated during his lifetime, upon
the ground that said appellee and her sister Gregoria
Ventura who have been found in the decision of another
court in a corresponding case, already final, to be
legitimate children and compulsory heirs of said
deceased, were preterited and deprived of their share in
the inheritance. Appellant denies that the decision
referred to has already become final and executory.
On December 2, 1952, herein appellee Gregoria Ventura
filed an action in the Court of First Instance of Nueva
Ecija, Branch I, against the other appellee herein
Mercedes Ventura, who later joined cause with Gregoria,
and Gregorio Ventura. Gregoria and Mercedes claimed
that they are the legitimate children of Gregorio Ventura
and his wife Paulina Simpliciano, who died in 1943, and
asked that one-half of the properties described in the
complaint be declared as the share of their mother in the
conjugal partnership, with them as the only forced heirs
of their mother Paulina. The case was docketed as Civil
Case No. 1064.
Later on, the same properties invoked in the just
mentioned case became the subject of another action,
Civil Case No. 1476, also of the Court of First Instance
of Nueva Ecija, Branch I, filed by Alipio, Eufracia and
Juliana, all surnamed Simpliciano, against Gregorio
Ventura and the two sisters, Mercedes and Gregoria.
They alleged that as the only children of Modesto
Simpliciano, sole brother of Paulina, they, instead of
Mercedes and Gregoria, whom they claimed are
adulterous children of Paulina with another man,

Teodoro Ventura, and as such are not entitled to inherit

from her under the Old Civil Code, are the ones who
should be declared as inheritors of the share of Paulina
in the conjugal partnership with Gregorio.
In his answer to the above complaints, Gregorio Ventura
took the position that Mercedes and Gregoria are not his
children because they were born out of the adulterous
relationship between Paulina who had left their conjugal
home and Teodoro Ventura with whom she lived for
more than ten years.
In Civil Case No. 1064, Gregorio Ventura filed a
counterclaim against Mercedes and her husband, Pedro
Corpuz, seeking the reconveyance from them of
properties covered by Transfer Certificates of Title Nos.
T-1102, T-1212, T- 1213 and T-1214 of the Office of the
Register of Deeds of Nueva Ecija.
Meanwhile, on December 14, 1953, Gregorio Ventura
filed a petition for the probate of his will and thus gave
rise to herein subject proceeding, Special Proceedings
No. 812. In due course, said will was admitted to probate
on January 14, 1954. This admission became final.
Gregorio died on September 26, 1955, and on October
17, 1955, pursuant to his will, Maria Ventura was
appointed executrix, in which capacity, she is appellant
in this case.
On November 4, 1959, after a joint hearing of Civil
Cases Nos. 1064 and 1476, the court rendered its
decision, the dispositive part of which reads:
WHEREFORE, judgment is hereby
rendered declaring Mercedes Ventura
and Gregoria Ventura to be the
legitimate daughters of Paulina
Simpliciano and Greogorio Ventura;
declaring that as such legitimate
daughters of Paulina Simpliciano they
are entitled to 1/2 of the properties
described in par. six of the complaint; ...
The parties are urged to arrive at an
amicable partition of the properties
herein adjudicated within twenty days
from the receipt of this decision. Upon
their failure to do so, the Court shall
appoint commissioners to divide the
properties in accordance with the terms
of this decision. Without pronouncement
as to costs. (Page 36, Record on
Appeal.)
Upon motion for reconsideration, this decision was
amended by reducing the amount of the monetary
judgment against Mercedes and her husband to
P97,000.
Maria Ventura, who, as executrix of the estate of
Gregorio, was substituted for him, tried on December 8,
1959 (also; on December 24, 1959) to appeal from the
above decision to this Court (G.R. No. L-18283) but said
appeal was dismissed for late payment of the docketing
fees and the estimated cost of printing this record on
appeal. Subsequently, or, on October 8, 1962 and ,

!55

October 31, 1962, Executrix Maria filed motions for the

execution, alleging that "Said decision, as amended, had
long been final and executory."
Earlier, or, on July 14, 1962, Mercedes filed, thru
counsel, Atty. Arturo M. Tolentino, the "Motion to Annul
Provisions of Will" that spawned the present controversy.
The motion reads as follows:
MOTION TO ANNUL PROVISIONS
OF WILL
COMES now the undersigned counsel,
for MERCEDES VENTURA and to this
Honorable Court respectfully states:
1. That on November 4,1959, in Civil
Cases Nos. 1064 and 1476, entitled
"Gregoria Ventura and Exequiel Victoria
plaintiffs, versus Gregorio Ventura,
Mercedes Ventura and Pedro Corpuz,
as husband of Mercedes Ventura", the
Honorable Court of First Instance of
Nueva Ecija, through the Honorable
Judge Jose N. Leuterio, rendered a
decision the dispositive portion of which
was originally as follows:
WHEREFORE, judgment is hereby
rendered declaring Mercedes Ventura
and Gregoria Ventura to be the
legitimate daughters of Paulina
Simpliciano and Gregorio Ventura;
declaring that as such legitimate
daughters of Paulina Simpliciano they
are entitled to 1/2 of the properties
described in paragraph 6 of the
complaint; ordering the defendant Maria
Ventura, as administratrix of the estate
of Gregorio Ventura to pay to Mercedes
and Gregorio Ventura the amount of
P19,074.09 which shall be divided
equally between Mercedes and
Gregoria Ventura; declaring that
Emiliano Ventura is not the son of
Paulina Simpliciano and therefore, not
entitled to share in the estate of Paulina
Simpliciano; declaring that Mercedes
Ventura and Pedro D. Corpuz are the
exclusive owners of the properties
described in the certificates of Title Nos.
T-1102, T-1212, T-1213, T-1214,
Exhibits 32, 33, 34 and 35, respectively;
ordering the said Mercedes Ventura and
Pedro D. Corpuz to pay to the conjugal
partnership of Gregorio Ventura and
Paulina Simpliciano the sum of
P100,000.00 one-half of which shall
pertain to the estate of Gregorio Ventura
and the other half to the estate of
Paulina Simpliciano to whom Mercedes
and Gregoria have succeeded, to be
divided between Mercedes and
Gregoria Ventura in equal parts;

dismissing Civil Case 1476. The parties

are urged to arrive at an amicable
partition of the properties herein
adjudicated within twenty days from the
receipt of this decision. Upon their
failure to do so, the Court shall appoint
commissioners to divide the properties
in accordance with the terms of this
decision. Without pronouncement as to
costs.
2. Subsequently, a Motion to amend the
above dispositive portion with respect to
the sum of P100,000.00, which
Mercedes Ventura and Pedro D. Corpuz
are required to pay to the conjugal
partnership of Gregorio Ventura and
Paulina Simpliciano, was filed, and the
Honorable Court amended its decision
reducing the said amount to
P97,000.00, under an Order, dated
December 21, 1959.
3. The foregoing decision of the
Honorable Court of First Instance of
Nueva Ecija has long become final.
4. That in the Will probated by this
Honorable Court in the above-entitled
case, Mercedes Ventura and Gregoria
Ventura, legitimate children of the
deceased Gregorio Ventura with Paulina
Simpliciano, have been omitted or
preterited.
5. That under Article 854 of the Civil
Code, "The preterition or omission of
one, some, or all of the compulsory
heirs in the direct line, whether living at
the time of the execution of the will or
born after the death of the testator, shall
annul the institution of heir; but the
devises and legacies shall be valid
insofar as they are not inofficious".
6. That pursuant to the above-quoted
provisions of Article 854 of the Civil
Code, all of the provisions of the
probated will designating heirs are null
and void, as a result intestacy follows,
unless there are devisees and legacies
which are not inofficious which would
stand to such extent that they are not
inofficious.
IN VIEW OF THE FOREGOING, it is
respectfully prayed that this Honorable
Court declares null and void all the
provisions of the Will probated in the
above- entitled case designating heirs to
any portion of the estate of the
deceased Gregorio Ventura, and to
declare MERCEDES VENTURA and
GREGORIA VENTURA as the sole
legitimate children of the deceased

!56

Gregorio Ventura entitled to his estate

by the rules of intestacy, without
prejudice to the rights of any other
compulsory heir who may be entitled to
any portion of the estate.
Manila, for Cabantuan City, July 14,
1962. (Pp. 10-14, Record on Appeal.)
This motion was opposed first, by Miguel Ventura and
Juana Cardona, who were given shares in the will of
Gregorio, and later by appellant Maria. The main ground
of this latter opposition was that the decision in Civil
Cases Nos. 1064 and 1476 was not yet final,
notwithstanding the dismissal of her appeal. She
contended that since the action filed by Mercedes and
Gregoria was for partition, the decision of the court of
November 4, 1959, which merely "urged" the parties "to
arrive at an amicable settlement of the properties herein
adjudicated within twenty days from receipt of this
decision," and "upon their failure to do so, the Court shall
appoint commissioners to divide the properties in
accordance with the terms of this decision" left
something else to be done and was, therefore,
interlocutory and not final, citing 1 Moran, Rules of
Court, 1950 ed. 810 and the cases therein cited.
On February 26, 1964, the trial court issued the first
assailed order thus:
ORDER
This refers to the "Motion to Annul
Provisions of Will" filed by Mercedes
Ventura thru counsel, Atty. Arturo M.
Tolentino, dated July 14, 1962.
After a careful perusal of said motion,
conjointly with the supporting
memorandum therefor filed by Gregoria
Ventura dated November 4, 1963; the
opposition thereto filed by Miguel
Ventura and Juana Cardona, dated July
26, 1962, as well as the opposition filed
by executrix Maria Ventura, dated
October 30, 1963, and the rejoinder
thereto of the spouses Gregoria Ventura
and Exequiel Victoria dated November
29, 1963 all filed thru their respective
counsel, the Court finds said motion
meritorious and hereby grants the same,
it appearing that the compulsory heirs
Mercedes Ventura and Gregoria
Ventura, legitimate children of the
deceased Gregoria Ventura and Paulina
Simpliciano, are indeed preterited.
WHEREFORE, the institution of heirs in
the will, Exhibit D-1, is hereby annulled.
However, the devises given in favor of
Clarita Ventura and Trinidad Ventura, as
set out in paragraph 6 of the will, and in
favor of Agapito Alipio, Juliana and
Eufracia, all surnamed Simpliciano, as

set forth in par. 7 thereof, shall remain

valid insofar as they are not inofficious.
SO ORDERED. (Pp. 30-31, Rec. on
Appeal.)
Maria moved for reconsideration, insisting on her theory
of non-finality of the decision and adding as authority in
support of her pose the ruling in Fuentebella vs.
Carrascoso, G. R. No. 48102, May 27, 1942, which
reversed the doctrines laid down in Africa vs. Africa, 42
Phil. 934 and Villanueva vs. Capistrano, 49 Phil. 460,
relied upon by appellees.
On June 11, 1964, the other impugned order was
entered as follows:
ORDER
To the order of this Court dated
February 26, 1964 in which the
institution of heirs in the will, Exhibit D-1
was annulled upon motion of Gregoria
Ventura and Mercedes Ventura who
appear to have prevailed by this Court's
judgment in Civil Cases Nos. 1064 and
1476 in which, among other things, the
said Mercedes and Gregoria Ventura
were declared as legitimate daughters
of Paulina Simpliciano and Gregorio
Ventura and entitled to one-half of the
properties of the said spouses, a motion
for reconsideration was filed by the
executrix on the ground that the same is
premature.
Although the properties subject matter
of Civil Cases Nos. 1064 and 1476 have
not been actually partitioned in
accordance with the said decision, but
such partition did not, and could not,
delay the finality of the judgment in such
cases, considering that the partition is
purely mechanical and all that the
parties need do was to convoke the
board of commissioners and to
undertake the actual partition. The main
cause of action, vis., the declaration of
legitimacy of Mercedes and Gregoria
Ventura, did not in any way depend on
such partition, hence, after the lapse of
the reglementary period within which to
appeal the case, the finding of this Court
respecting such legitimacy has now
become final.
UPON THE FOREGOING
CONSIDERATIONS, this Court denied
the motion for reconsideration filed by
the executrix Maria Ventura on March 9,
1964.
SO ORDERED. (Pp. 64-66, Rec. on
Appeal.)

!57

In her brief, appellant assigns the following four errors

allegedly committed by the probate court:
ASSIGNMENT OF ERRORS
I
THE LOWER COURT ERRED IN NOT
DECLARING THAT THE DECISION IN
CIVIL CASES NOS. 1064 and 1476
ORDERING THE PARTITION OF THE
PROPERTIES DESCRIBED IN THE
COMPLAINT IS NOT AS YET FINAL
AND EXECUTORY, THERE BEING
SOMETHING MORE TO BE DONE IN
THE TRIAL COURT FOR THE
COMPLETE DISPOSITION OF THE
CASES, AND, THEREFORE, IT IS
PREMATURE TO ANNUL THE
INSTITUTION OF HEIRS IN THE WILL
OF GREGORIO VENTURA, EXHIBIT
D-1.
II
THE LOWER COURT ERRED IN
ANNULLING THE INSTITUTION OF
HEIRS IN THE WILL OF GREGORIO
VENTURA, EXHIBIT D-1.
III
THE LOWER COURT ERRED IN
DECLARING THAT "ALTHOUGH THE
PROPERTIES SUBJECT MATTER OF
CIVIL CASES NOS. 1064 AND 1476
HAVE NOT BEEN ACTUALLY
PARTITIONED IN ACCORDANCE
WITH THE DECISION, BUT SUCH
PARTITION DID NOT, AND COULD
NOT, DELAY IN THE FINALITY OF THE
JUDGMENT IN SUCH CASES,
CONSIDERING THAT THE PARTITION
IS PURELY MECHANICAL AND ALL
THAT THE PARTIES NEED DO WAS
TO CONVOKE THE BOARD OF
COMMISSIONERS AND TO
UNDERTAKE THE ACTUAL
PARTITION."
IV
THE LOWER COURT ERRED IN
HOLDING THAT THE DECLARATION
OF LEGITIMACY OF MERCEDES AND
GREGORIA VENTURA, IN CIVIL
CASES NOS., 1064 AND 1476, DID
NOT IN ANY WAY DEPEND ON SUCH
PARTITION, HENCE, AFTER THE
LAPSE OF THE REGLEMENTARY
PERIOD WITHIN WHICH TO APPEAL
THE CASE, THE FINDINGS OF THE
COURT RESPECTING SUCH
LEGITIMACY BECAME FINAL. (Pp1-3, Brief for Executrix-Appellant.)

Principal additional authority relied upon by appellant in

maintaining that the decision in question has not yet
become final is Zaldariaga vs. Enriquez, et al., 1 SCRA
1188.
As may be noted, the issues discussed by the parties in
their respective briefs could require a renewed
deliberation on the variance in opinions among the
members of the Court which culminated in the majority
ruling in Miranda vs. Court of Appeals, et al., 71 SCRA
295. It appears, however, that an important development
in the instant case should make it unnecessary for Us to
reexamine in this case said majority ruling.
On February 12,1975, a motion to dismiss the present
appeal on the ground that it has become moot and
academic, was filed by Atty. Tolentino, as counsel for
appellees Mercedes Ventura and Pedro Corpuz. The
motion states that:
2. That on October 10, 1968, the
Commissioners appointed by the lower
court to partition the properties subjectmatter of Civil Cases Nos. 1064 and
1476 submitted their Amended
Commissioners' Report for the partition
of the conjugal estate of the late
spouses, Gregorio Ventura and Paulina
Simpliciano, and the partition of the
estate of the late Paulina Simpliciano
between Gregoria Ventura and
Mercedes Ventura.
3. The Commissioners, for the
information of the Court, were:
Emmanuel Mariano, husband of and
representing the executrix-appellant,
Maria Ventura; Daniel Victoria son of
and representing Gregoria Ventura; and
Pedro D. Corpuz, husband of and
representing Mercedes Ventura.
4. That on October 22, 1968, the Court
before whom Civil Cases G.R. Nos.
1064 and 1476 were pending, issued an
Order reading as follows:
Finding the
Commissioners' Report,
dated October 10, 1968,
duly signed by the three
Commissioners in
accordance with law
and not against public
policy and morals, the
same is hereby
approved. Let the said
Commissioners' Report
be the laws between the
parties with respect to
the partition sought for
the parties are hereby
enjoined to abide 6y all
the terms and

!58

stipulations stated and

provided in said Report.
These cases are hereby
declared closed and
terminated without any
pronouncement as to
costs.
SO ORDERED.
5. That no appeal was made from said
order, which is now final and executory.
(Pp. 2-3, Motion in record.)
On March 6, 1975, appellant Maria Ventura, thru new
counsel, Atty. Inocencio B. Garampil, filed an opposition
contending that "there is no basis in alleging that the
appeal (in this case) has become moot and academic"
just because the partition in Civil Cases Nos. 1064 and
1476 has already been done with approval of the court
which has not been appealed. But We find this posture
of appellant inconsistent with the position taken by her in
the court below in her motion for reconsideration of the
order of February 26, 1964, where she stated:
Is the decision of the Court in Civil
Cases Nos. 1064 and 1476 dated
November 4, 1959, as amended, the
dispositive portion of which is quoted
above, already final and executory?
If it is already final and executory then
the findings of the Court 'declaring
Mercedes Ventura and Gregoria Ventura
to be the legitimate daughters of Paulina
Simpliciano and Gregorio Ventura' is
already an established fact, and,
therefore, Mercedes and Gregoria may
properly ask for the annulment of the
institution of heirs in the will, Exh. D-1,
and this Court would be correct in
annulling the institution of heirs in the
will Exh. D-1 for 'the compulsory heirs
Mercedes Ventura and Gregoria
Ventura, legitimate children of the
deceased Gregorio Ventura and Paulina
Simpliciano, are indeed preterited'(order
under reconsideration).
On the other hand, if said decision of
November 4, 1959 is not yet final and
executory, or if it is merely interlocutory,
because there is something more to be
done for the complete disposition of the
case, that is, the making of the partition
by the duly appointed three (3)
commissioners, and the action of the
court upon such report, and that the
order or judgment of the court approving
such report is the final order or
judgment, it follows that the findings of
the court 'declaring Mercedes Ventura
and Gregoria Ventura to be the
legitimate daughters of Paulina

Simpliciano and Gregorio Ventura', is

interlocutory and not final. The executrix
shall appeal said decision of November
4, 1959 in due time.
If said decision of November 4, 1959 is
not as yet final, it is, therefore,
premature for this Court to order the
annulment of the institution of heirs in
the will Exh. D-1, on the ground that
said Mercedes and Gregoria were
preterited. If when we shall appeal said
decision of November 4, 1959 and
surely we shall appeal and that if the
higher court shall find Mercedes and
Gregoria to, be the adulterous children
of Paulina Simpliciano and her
paramour Teodoro Ventura, as
contended by Gregorio Ventura, then
Mercedes and Gregoria are foreigners
to Gregorio Ventura, they are not his
daughters, and consequently they could
not be said to be "preterited" in Gregorio
Ventura's will, Exh. D-1, and clearly the
order of this Court dated February 26,
1964, is manifestly premature. Let us
wait for the finality of the decision of
November 4, 1959 entered in Cases
Nos. 1064 and 1476. (Pp. 38-40, Rec.
on Appeal.)
And so, acting on appellees' motion to dismiss appeal, it
is Our considered opinion that the decision in Civil
Cases Nos. 1064 and 1476 declaring that appellees
Mercedes and Gregoria Ventura are the legitimate
children of the deceased Gregorio Ventura and his wife,
Paulina Simpliciano, and as such are entitled to the
annulment of the institution of heirs made in the
probated will of said deceased became final and
executory upon the finality of the order approving the
partition directed in the decision in question. We need
not indulge in any discussion as to whether or not, as of
the time the orders here in question were issued by the
trial court said decision had the nature of an interlocutory
order only. To be sure, in the ease of Miranda,
aforementioned, the opinion of the majority of the Court
may well be invoked against appellant's pose. In any
event, even if the Court were minded to modify again
Miranda and go back to Fuentebella and Zaldariaga, and it is not, as of now - there can be no question that
the approval by the trial court in Civil Cases Nos. 1064
and 1476 of the partition report of the commissioners
appointed for the purpose, one of whom, Emmanuel
Mariano, is the husband of appellant, put a definite end
to those cases, leaving nothing else to be done in the
trial court. That order of approval is an appealable one,
and inasmuch as no appeal has been taken from the
same, it is beyond dispute that the decision in
controversy has already become final and executory in
all respects. Hence, the case at bar has become moot
and academic.

!59

IN VIEW OF ALL THE FOREGOING, the appeal of

Executrix-Appellant Maria Ventura in this case is hereby
dismissed. No costs in this instance.
G.R. No. L-26306 April 27, 1988
TESTATE ESTATE OF THE LATE GREGORIO
VENTURA MARIA VENTURA, executrix- appellant,
MIGUEL VENTURA and JUANA CARDONA, heirsappellants,
vs. GREGORIA VENTURA and HER HUSBAND,
EXEQUIEL VICTORIO, MERCEDES VENTURA and
HER HUSBAND, PEDRO D. CORPUZ, oppositorsappellees.
This is an appeal from the order of the Court of First
Instance of Nueva Ecija, Guimba, Branch V in Special
Proceedings No. 812, Testate of the late Gregorio
Venture, dated October 5, 1965, removing the appellant
Maria Ventura as executrix and administratrix of the
estate of the late Gregorio Ventura, and in her place
appointing the appellees Mercedes Ventura and
Gregoria Ventura as joint administratrices of the estate.
(Record on Appeal, pp. 120-131.)
Appellant Maria Ventura is the illegitimate daughter of
the deceased Gregorio Ventura while Miguel Ventura
and Juana Cardona are his son and saving spouse who
are also the brother and mother of Maria Ventura. On the
other hand, appellees Mercedes and Gregoria Ventura
are the deceased's legitimate children with his former
wife, the late Paulina Simpliciano (Record on Appeal, p.
122) but the paternity of appellees was denied by the
deceased in his will (Record on Appeal, p. 4).
On December 14,1953, Gregorio Ventura filed a petition
for the probate of his will which did not include the
appellees and the petition was docketed as Special
Proceedings No. 812 (Record on Appeal, pp. 1-3). In the
said will, the appellant Maria Ventura, although an
illegitimate child, was named and appointed by the
testator to be the executrix of his will and the
administratrix of his estate (Record on Appeal, p. 7).
In due course, said will was admitted to probate on
January 14,1954 (Record on Appeal, pp. 8-10). Gregorio
Ventura died on September 26,1955. On October 10,
1955, the appellant Maria Ventura filed a motion for her
appointment as executrix and for the issuance of letters
testamentary in her favor (Record on Appeal, pp. 10-11).
On October 17, 1955, Maria Ventura was appointed
executrix and the corresponding letters testamentary
was issued in her favor (Record on Appeal, pp. 11-12).

report as not reflecting the true income of the estate and

the expenses which allegedly are not administration
expenses. But on January 25, 1961, Maria Ventura filed
a motion to hold in abeyance the approval of the
accounts of administration or to have their approval
without the opposition of the spouses Mercedes Ventura
and Pedro Corpuz and Gregoria Ventura and Exequiel
Victorio on the ground that the question of the paternity
of Mercedes Ventura and Gregoria Ventura is still
pending final determination before the Supreme Court
and that should they be adjudged the adulterous children
of testator, as claimed, they are not entitled to inherit nor
to oppose the approval of the counts of administration
(Record on Appeals, pp. 33-36). Spouses Mercedes
Ventura and Pedro Corpuz filed on February 2, 1961
their opposition to the motion to hold in abeyance the
approval of the accounts of administration on the ground
that Mercedes and Gregoria Ventura had already been
declared by the Court of First Instance in Civil Cases No.
1064 and 1476, which cases are supposed to be
pending before the Supreme Court, as the legitimate
children of Gregorio Ventura, hence, they have reason to
protect their interest (Record on Appeal, pp. 36-39). On
February 9,1961, the motion to hold in abeyance the
approval of the accounts was denied (Record on Appeal,
pp. 39-40).
It appears that on July 12, 1963, the Court set the case
for pre-trial on August 7, 1963 in connection with the
accounts of the executrix Maria Ventura dated June 17,
1960 and the Motion to Annul Provision of Will dated
July 14,1962 of Mercedes Ventura (Record on Appeal, p.
45).
On October 22, 1963, four motions were filed by
Mercedes Ventura and Gregoria Ventura, namely: (1)
motion to remove the executrix Maria Ventura which was
supplemented on April 27, 1965; (2) motion to require
her to deposit the harvest of palay of the property under
administration in a bonded warehouse; (3) motion to
render an accounting of the proceeds and expenses of
Administration; and (4) motion to require her to include in
the inventory of the estate certain excluded properties
(Record on Appeal, pp. 50-53; 71). An opposition to said
motions was filed by the heirs Juana Cardona and
Miguel Ventura and by the executrix Maria Ventura
herself (Record on Appeal, pp. 56-61; 61-70 and 71).

On or about July 26, 1956, Maria Ventura submitted an

inventory of the estate of Gregorio Ventura (Record on
Appeal, pp. 12-20).

On motion of counsel for Exequiel Victorio and Gregoria

Ventura the joint motions to require an Up-to-date
Accounting and to Require Executrix Ventura to Include
Excluded Properties in Her Inventory were ordered
withdrawn (Order dated February 2, 1965, Record on
Appeal, p. 73). The other two motions were however set
for hearing.

On June 17,1960, she filed her accounts of

administration for the years 1955 to 1960, inclusive.
(Record on Appeal, pp. 20-27). Said account of
administration was opposed by the spouses Mercedes
Ventura and Pedro Corpuz on July 25, 1960 (Record on
Appeal, pp. 27-33) and by Exequiel Victorio and
Gregoria Ventura on August 5,1963 (Record on Appeal,
pp. 46-50). Both oppositions assailed the veracity of the

The grounds of aforesaid joint motions to remove the

executrix Maria Ventura are: (1) that she is grossly
incompetent; (2) that she has maliciously and purposely
concealed certain properties of the estate in the
inventory; (3) that she is merely an illegitimate daughter
who can have no harmonious relations with the
appellees; (4) that the executrix has neglected to render
her accounts and failed to comply with the Order of the

!60

Court of December 12, 1963, requiring her to file her

accounts of administration for the years 1961 to 1963
(Record on Appeal, pp. 70 and 75-76) and the Order of
June 11, 1964, reiterating aforesaid Order of December
12, 1963 (Record on Appeal, p. 76); and (5) that she is
with permanent physical defect hindering her from
efficiently performing her duties as an executrix (Record
on Appeal, pp. 50-53 and 74-79).
On May 17, 1965, the executrix Maria Ventura finally
submitted her accounts of administration covering the
period 1961 to 1965 (Record on Appeal, pp. 79-84)
which were again opposed by the spouses Exequiel
Victorio and Gregoria Ventura on September 21, 1965
and by the spouses Mercedes Ventura and Pedro
Corpuz on September 29, 1965 (Record on Appeal, pp.
106-120). On June 2, 1965, the executrix filed her
supplemental opposition to the aforesaid four motions,
and prayed that the joint supplemental motion to remove
the executrix be denied or held in abeyance until after
the status of Mercedes and Gregoria Ventura as heirs of
the testator is finally decided (Record on Appeal, pp.
85-1 01). On June 3, 1965, the Court, finding that the
estate taxes have not been paid, ordered the
administratrix to pay the same within thirty (30) days. On
September 13, 1965, the lower court denied the
suspension of the proceedings and deferred the
resolution of the joint motion to remove executrix Maria
Ventura until after the examination of the physical fitness
of said executrix to undertake her duties as such. Also, it
ordered the deposit of all palay to be harvested in the
next agricultural year and subsequent years to be
deposited in a bonded warehouse to be selected by the
Court and the palay so deposited shall not be withdrawn
without the express permission of the Court (Record on
Appeal, pp. 103-105). On September 21, 1965, spouses
Exequiel Victorio and Gregoria Ventura filed their
opposition to the accounts of administration of Maria
Ventura dated May 17, 1965, while that of spouses
Mercedes Ventura and Pedro Corpuz was filed on
September 29, 1965, both oppositions alleging among
others that said accounts do not reflect the true and
actual income of the estate and that the expenses
reported thereunder are fake, exhorbitant and
speculative (Record on Appeal, pp. 106-120).
On October 5, 1965, the court a quo, finding that the
executrix Maria Ventura has squandered the funds of the
estate, was inefficient and incompetent, has failed to
comply with the orders of the Court in the matter of
presenting up-to-date statements of accounts and
neglected to pay the real estate taxes of the estate,
rendered the questioned decision, the dispositive portion
of which reads:
WHEREFORE, Maria Ventura is hereby
removed as executrix and administratrix
of the estate and in her place Mercedes
Ventura and Gregoria Ventura are
hereby appointed joint a tratrices of the
estate upon filing by each of them of a
bond of P 7,000.00. Let letters of
administration be issued to Mercedes

Ventura and Gregoria Ventura upon

their qualification.
IT IS SO ORDERED.
(Record on Appeal pp. 120-131).
Hence, this appeal.
In their brief, appellants Maria Ventura and spouses
Juana Cardona and Miguel Ventura assign the following
errors allegedly committed by the probate court:
ASSIGNMENT OF ERRORS
I
The lower court erred in ordering the
removal of Maria Ventura as executrix
and administratrix of the will and estate
of the deceased Gregorio Ventura
without giving her full opportunity to be
heard and to present all her evidence.
II
The lower court erred in finding that the
executrix Maria Ventura had
squandered and dissipated the funds of
the estate under her administration.
III
The lower court erred in finding that the
executrix Maria Ventura was inefficient
and incompetent.
IV
That, considering the circumtances
surrounding the case, the lower court
erred in finding that the failure of Maria
Ventura to submit her periodical account
had justified her removal as executrix.
V
The lower court erred in considering as
an established fact that the appellees
Mercedes Ventura and Gregoria Ventura
are the legitimate daughters of the
deceased Gregorio Ventura.
VI
The lower court erred in finding that the
devises and bequests in favor of Maria
Ventura and Miguel Ventura as specified
in paragraph 8 of the last Will and
Testament of the late Gregorio Ventura
have ipso facto been annulled.
VII
The lower court erred in allowing the
appellees Mercedes Ventura and
Gregoria Ventura to intervene in the
hearing of the accounts of
administration submitted by the
executrix Maria Ventura and/or in not
suspending the hearing of the said
accounts until the said appellees have

!61

finally established their status as

legitimate children of the deceased
Gregorio Ventura.
VIII
The lower court erred in appointing
(even without a proper petition for
appointment and much less a hearing
on the appointment of) the appellees
Mercedes Ventura and Gregoria Ventura
who have an adverse interest as joint
administratrices of the estate of the
deceased Gregorio Ventura.
IX
The lower court erred in not appointing
the surviving widow, Juana Cardona, or
Miguel Ventura, as administratrix of the
estate of Gregorio Ventura in case the
removal of Maria Ventura as executrix
and administratrix thereof is legally
justified.
X
Considering that there are in fact two (2)
factions representing opposite interests
in the estate, the lower court erred in not
appointing Juana Cardona, or Miguel
Ventura, as one of the two (2)
administratrices.' (Joint Brief for the
Appellants, pp. 1-4)
On July 19,1967, Atty. Arturo Tolentino (representing
appellees Mercedes Ventura and Pedro Corpuz) and
Atty. Jose J. Francisco (representing Gregoria and
Exequiel Victoria), having failed to submit their
respective briefs within the period for the purpose, which
expired on July 2 and May 29,1967, respectively, the
Supreme Court Resolved to consider this case
submitted for decision WITHOUT SAID APPELLEES'
BRIEF (Rollo, p. 152).
The crucial issue in this case is whether or not the
removal of Maria Ventura as executrix is legally justified.
This issue has, however, become moot and academic in
view of the decision of this Court in related cases.
At the outset, it is worthy to note that aside from the
instant special proceedings, there are two other civil
cases involving the estate of the deceased Gregoria
Ventura, namely, Civil Cases Nos. 1064 and 1476. Civil
Case No. 1064 was filed on December 2, 1952 by herein
appellee Gregoria Ventura in the Court of First Instance
of Nueva Ecija, Branch I, against the other appellees
herein Mercedes Ventura and their father, Gregorio
Ventura. Later Mercedes Ventura joined cause with
Gregoria Ventura. (Record on Appeal, p. 95). Gregoria
and Mercedes Ventura claimed that they are the
legitimate children of Gregorio Ventura and his wife
Paulina Simpliciano, who died in 1943, and asked that
one-half of the properties described in the complaint be
declared as the share of their mother in the conjugal

partnership, with them as the only forced heirs of their

mother Paulina (Joint Brief for the Appellants, pp. 53-68).
Subsequently, Civil Case No. 1476 was filed by Alipio,
Eufracia and Juliana, all surnamed Simpliciano, against
Gregorio Ventura and the two sisters, Mercedes and
Gregoria Ventura, before the Court of First Instance of
Nueva Ecija, Branch I. They alleged that as the only
children of Modesto Simpliciano, sole brother of Paulina
Simpliciano, they, instead of Mercedes and Gregoria
Ventura, whom they claimed are adulterous children of
Paulina with another man, Teodoro Ventura and as such
are not entitled to inherit from her, are the ones who
should inherit the share of Paulina Simpliciano in the
conjugal Partnership with Gregorio Ventura (Joint Brief
For The Appealant,pp.69-79)
It appears that on November 4, 1959, after a joint
hearing of Civil Cases Nos. 1064 and 1476, the lower
court rendered its judgment, the dispositive portion of
which reads as follows:
WHEREFORE, judgment is hereby
rendered declaring Mercedes Ventura
and Gregoria Ventura to be the ligitimate
daughters of Paulina Simpliciano and
Gregorio Ventura; declaring that as such
ligitimate daughters of Paulina
Simpliciano they are entitled to 1/2 of
the properties described in paragraph
six of the complaint; ordering the
defendant Maria Ventura, as
administratrix of the estate of Gregorio
Ventura to pay to Mercedes Ventura and
Gregorio Ventura the amount of P
19,074.09 which shall be divided equally
between Mercedes and Gregoria
Ventura declaring Mercedes Ventura
and Pedro Corpuz are the exclusive
owners of the property describe in the
certificate of Title Nos. T-1102, 212,
T-1213, T-1214, Exhibits 32, 33, 34 and
35, respectively; ordering Mercedes
Ventura and Pedro D. Corpuz to pay to
the conjugal partnership of Gregorio
Ventura and Paulina Simpliciano the
sum of P100,000.00, one-half of which
shall pertain to the estate of Gregorio
Ventura and the other half to the estate
of Paulina Simpliciano to whom
Mercedes and Gregoria Ventura have
succeeded, to be divided between
Mercedes and Gregoria in equal parts;
and dismissing Civil Case No. 1476. The
parties are urged to arrive at an
amicable partition of the properties
herein adjudicated within twenty days
from receipt of this decision. Upon their
failure to do so, the Court shall appoint
commissioners to divide the properties
in accordance with the terms of the
decision. Without pronouncements as to

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costs. (Emphasis supplied). (Joint Brief

for the Appellants, pp. 3738.)
Thereafter, on July 14, 1962, Mercedes Ventura filed a
motion to annul the provisions of the will of the deceased
Gregorio Ventura in Special Proceedings No. 812, which
motion was opposed by Miguel Ventura and Juana
Cardona and later by Maria Ventura. They claimed that
the decision dated November 4,1959 in Civil Cases Nos.
1064 and 1476 was not yet final.
On February 26,1964, the court annulled the institution
of the heirs in the probated will of Gregorio Ventura. The
motion for reconsideration of the aforesaid order filed by
executrix Maria Ventura was denied on June 11, 1964.
Accordingly, Maria Ventura appealed the February 26,
1964 and June 11, 1964 orders of the probate court in
Special Proceedings No. 812 before the Supreme Court
and was docketed as G.R. No. L-23878. On May
27,1977, this Court, through then Associate Justice
Antonio P. Barredo, ruled, as follows:
And so, acting on appellees' motion to
dismiss appeal, it is Our considered
opinion that the decision in Civil Cases
Nos.1064 and 1476 declaring that
appellees Mercedes and Gregoria
Ventura are the ligimate children of the
deceased Gregorio Ventura and his
wife, Paulina Simpliciano, and as such
are entitled to the annulment of the
institution of heirs made in the probated
will of said deceased became final and
executory upon the finality of the order,
approving ther partition directed in the
decision in question. We need not
indulge in any discussion as to whether
or not, as of the time the orders here in
question were issued by the trial court
said decision had the nature of an
interlocutory order only. To be sure, in
the case of Miranda, aforementioned,
the opinion of the majority of the Court
may well be invoked against appellant's
pose. In any event, even if the Court
were minded to modify again Miranda
and go back to Fuentebella and
Zaldariaga and it is not, as of now
there can be no question that the
approval by the trial court in Civil Cases
Nos. 1064 and 1476 of the partition
report of the commissioners appointed
for the purpose, one of whom,
Emmanuel Mariano, is the husband of
appellant, put a definite end to those
cases, leaving nothing else to be done
in the trial court. That order of approval
is an appealable one, and inasmuch as
no appeal has been taken from the
same, it is beyond dispute that the
decision in controversy has already
become final and executory in all
respects. Hence, the case at bar has

become moot and academic. (Ventura

vs. Ventura, 77 SCRA 159, May
27,1977)
Under Article 854 of the Civil Code, "the pretention or
omission of one, some, or all of the compulsory heirs in
the direct line, whether living at the time of the execution
of the will or born after the death of the testator, shall
annul the institution of heir; but the devises and legacies
shall be valid insofar as they are not inofficious," and as
a result, intestacy follows, thereby rendering the
previous appointment of Maria Ventura as executrix
moot and academic. This would now necessitate the
appointment of another administrator, under the
following provision:
Section 6, Rule 78 of the Rules of Court:
When and to whom letters of
administration granted.-If no executor is
named in the will, or the executor or
executors are incompetent, refuse the
trust, or fail to give bond, or a person
dies intestate, a petition shall be
granted:
(a) To the surviving husband or wife, as
the case may be or next of kin, or both,
in the discretion of the court, or to such
person as such surviving husband or
wife, or both, in the discretion of the
court, or to such person as such
surviving husband or wife, or next of kin,
requests to have appointed, if
competent and willing to serve;"
xxx xxx xxx
In the case at bar, the surviving spouse of the deceased
Gregorio Ventura is Juana Cardona while the next of kin
are: Mercedes and Gregoria Ventura and Maria and
Miguel Ventura. The "next of kin" has been defined as
those persons who are entitled under the statute of
distribution to the decedent's property (Cooper vs.
Cooper, 43 Ind. A. 620, 88 NE 341). It is generally said
that "the nearest of kin, whose interest in the estate is
more preponderant, is preferred in the choice of
administrator. 'Among members of a class the strongest
ground for preference is the amount or preponderance of
interest. As between next of kin, the nearest of kin is to
be preferred." (Cabanas, et al. vs. Enage et al., 40 Off.
Gaz. 12 Suppl. 227; citing 12 Am. Jur. Sec. 77, p. 416,
cited in Francisco Vicente J., The Revised Rules of
Court in the Philippines, Vol. V-B 1970 Ed., p. 23).
As decided by the lower court and sustained by the
Supreme Court, Mercedes and Gregoria Ventura are the
legitimate children of Gregorio Ventura and his wife, the
late Paulina Simpliciano. Therefore, as the nearest of kin
of Gregorio Ventura they are entitled to preference over
the illegitimate children of Gregorio Ventura, namely:
Maria and Miguel Ventura. Hence, under the aforestated
preference provided in Section 6 of Rule 78, the person
or persons to be appointed administrator are Juana
Cardona, as the surviving spouse, or Mercedes and

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Gregoria Ventura as nearest of kin, or Juana Cardona

and Mercedes and Gregoria Ventura in the discretion of
the Court, in order to represent both interests.
PREMISES CONSIDERED, the appeal interposed by
appellants Maria Ventura, Juana Cardona and Miguel
Ventura is hereby DISMISSED.
SO ORDERED.
G.R. No. L-48840 December 29, 1943
ERNESTO M. GUEVARA, petitioner-appellant,
vs.ROSARIO GUEVARA and her husband PEDRO
BUISON, respondent-appellees.
Ernesto M. Guevarra and Rosario Guevara, ligitimate
son and natural daughter, respectively, of the deceased
Victorino L. Guevara, are litigating here over their
inheritance from the latter. The action was commenced
on November 12, 1937, by Rosario Guevara to recover
from Ernesto Guevara what she claims to be her strict
ligitime as an acknowledged natural daughter of the
deceased to wit, a portion of 423,492 square meters
of a large parcel of land described in original certificate
of title No. 51691 of the province of Pangasinan, issued
in the name of Ernesto M. Guervara and to order the
latter to pay her P6,000 plus P2,000 a year as damages
for withholding such legitime from her. The defendant
answered the complaint contending that whatever right
or rights the plaintiff might have had, had been barred by
the operation of law.
It appears that on August 26, 1931, Victorino L. Guevara
executed a will (exhibit A), apparently with all the
formalities of the law, wherein he made the following
bequests: To his stepdaughter Candida Guevara, a pair
of earrings worth P150 and a gold chain worth P40; to
his son Ernesto M. Guevara, a gold ring worth P180 and
all the furniture, pictures, statues, and other religious
objects found in the residence of the testator in
Poblacion Sur, Bayambang, Pangasinan; "a mi hija
Rosario Guevara," a pair of earrings worth P120; to his
stepson Piuo Guevara, a ring worth P120; and to his
wife by second marriage, Angustia Posadas, various
pieces of jewelry worth P1,020.
He also made the following devises: "A mis hijos Rosario
Guevara y Ernesto M. Guevara y a mis hijastros,
Vivencio, Eduviges, Dionisia, Candida y Pio, apellidados
Guevara," a residential lot with its improvements situate
in the town of Bayambang, Pangasinan, having an area
of 960 square meters and assessed at P540; to his wife
Angustia Posadas he confirmed the donation propter
nuptias theretofore made by him to her of a portion of 25
hectares of the large parcel of land of 259-odd hectares
described in plan Psu-66618. He also devised to her a
portion of 5 hectares of the same parcel of land by way
of complete settlement of her usufructurary right.
1awphil.net
He set aside 100 hectares of the same parcel of land to
be disposed of either by him during his lifetime or by his
attorney-in-fact Ernesto M. Guevara in order to pay all
his pending debts and to degray his expenses and those
of his family us to the time of his death.

The remainder of said parcel of land his disposed of in

the following manner:
(d). Toda la porcion restante de mi terreno
arriba descrito, de la extension superficial
aproximada de ciento veintinueve (129)
hectareas setenta (70) areas, y veiticinco (25)
centiares, con todas sus mejoras existentes en
la misma, dejo y distribuyo, pro-indiviso, a mis
siguientes herederos como sigue:
A mi hijo legitimo, Ernesto M. Guevara, ciento
ocho (108) hectareas, ocho (8) areas y
cincuenta y cuatro (54) centiareas, hacia la
parte que colinda al Oeste de las cien (100)
hectareas referidas en el inciso (a) de este
parrafo del testamento, como su propiedad
absoluta y exclusiva, en la cual extension
superficial estan incluidas cuarenta y tres (43)
hectareas, veintitres (23) areas y cuarenta y dos
(42) centiareas que le doy en concepto de
mejora.
A mi hija natural reconocida, Rosario Guevara,
veintiun (21) hectareas, sesenta y un (61) areas
y setenta y un (71) centiareas, que es la parte
restante.
Duodecimo. Nombro por la presente como
Albacea Testamentario a mi hijo Ernesto M.
Guevara, con relevacion de fianza. Y una vez
legalizado este testamento, y en cuanto sea
posible, es mi deseo, que los herederos y
legatarios aqui nombrados se repartan
extrajudicialmente mis bienes de conformidad
con mis disposiciones arriba consignadas.
Subsequently, and on July 12, 1933, Victorino L.
Guevarra executed whereby he conveyed to him the
southern half of the large parcel of land of which he had
theretofore disposed by the will above mentioned,
inconsideration of the sum of P1 and other valuable
considerations, among which were the payment of all his
debts and obligations amounting to not less than
P16,500, his maintenance up to his death, and the
expenses of his last illness and funeral expenses. As to
the northern half of the same parcel of land, he declared:
"Hago constar tambien que reconozco a mi referido hijo
Ernesto M. guevara como dueo de la mitad norte de la
totalidad y conjunto de los referidos terrenos por
haberlos comprado de su propio peculio del Sr. Rafael T.
Puzon a quien habia vendido con anterioridad."
On September 27, 1933, final decree of registration was
issued in land registration case No. 15174 of the Court
of First Instance of Pangasinan, and pursuant thereto
original certificate of title No. 51691 of the same province
was issued on October 12 of the same year in favor of
Ernesto M. Guevara over the whole parcel of land
described in the deed of sale above referred to. The
registration proceeding had been commenced on
November 1, 1932, by Victorino L. Guevara and Ernesto
M. Guevara as applicants, with Rosario, among others,
as oppositor; but before the trial of the case Victorino L.
Guevara withdrew as applicant and Rosario Guevara

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and her co-oppositors also withdrew their opposition,

thereby facilitating the issuance of the title in the name of
Ernesto M. Guevara alone.

appeal to the Supreme Court; and the allowance

by the court of a will of real and personal estate
shall be conclusive as to its due execution.

On September 27, 1933, Victorino L. Guevarra died. His

last will and testament, however, was never presented to
the court for probate, nor has any administration
proceeding ever been instituted for the settlement of his
estate. Whether the various legatees mentioned in the
will have received their respective legacies or have even
been given due notice of the execution of said will and of
the dispositions therein made in their favor, does not
affirmatively appear from the record of this case. Ever
since the death of Victorino L. Guevara, his only
legitimate son Ernesto M. Guevara appears to have
possessed the land adjudicated to him in the registration
proceeding and to have disposed of various portions
thereof for the purpose of paying the debts left by his
father.

Sec. 626. Custodian of Will to Deliver. The

person who has the custody of a will shall, within
thirty days after he knows of the death of the
testator, deliver the will into the court which has
jurisdiction, or to the executor named in the will.

In the meantime Rosario Guevara, who appears to have

had her father's last will and testament in her custody,
did nothing judicially to invoke the testamentary
dispositions made therein in her favor, whereby the
testator acknowledged her as his natural daughter and,
aside from certain legacies and bequests, devised to her
a portion of 21.6171 hectares of the large parcel of land
described in the will. But a little over four years after the
testor's demise, she (assisted by her husband)
commenced the present action against Ernesto M.
Guevara alone for the purpose hereinbefore indicated;
and it was only during the trial of this case that she
presented the will to the court, not for the purpose of
having it probated but only to prove that the deceased
Victirino L. Guevara had acknowledged her as his
natural daughter. Upon that proof of acknowledgment
she claimed her share of the inheritance from him, but
on the theory or assumption that he died intestate,
because the will had not been probated, for which
reason, she asserted, the betterment therein made by
the testator in favor of his legitimate son Ernesto M.
Guevara should be disregarded. Both the trial court and
the Court of appeals sustained that theory.
Two principal questions are before us for determination:
(1) the legality of the procedure adopted by the plaintiff
(respondent herein) Rosario Guevara; and (2) the
efficacy of the deed of sale exhibit 2 and the effect of the
certificate of title issued to the defendant (petitioner
herein) Ernesto M. Guevara.
I
We cannot sanction the procedure adopted by the
respondent Rosario Guevara, it being in our opinion in
violation of procedural law and an attempt to circumvent
and disregard the last will and testament of the
decedent. The Code of Civil Procedure, which was in
force up to the time this case was decided by the trial
court, contains the following pertinent provisions:
Sec. 625. Allowance Necessary, and Conclusive
as to Execution. No will shall pass either the
real or personal estate, unless it is proved and
allowed in the Court of First Instance, or by

Sec. 627. Executor to Present Will and Accept or

Refuse Trust. A person named as executor in
a will, shall within thirty days after he knows of
the death of the testor, or within thirty days after
he knows that he is named executor, if he
obtained such knowledge after knowing of the
death of the testor, present such will to the court
which has jurisdiction, unless the will has been
otherwise returned to said court, and shall,
within such period, signify to the court his
acceptance of the trust, or make known in
writing his refusal to accept it.
Sec. 628. Penalty. A person who neglects any
of the duties required in the two proceeding
sections, unless he gives a satisfactory excuse
to the court, shall be subject to a fine not
exceeding one thousand dollars.
Sec. 629. Person Retaining Will may be
Committed. If a person having custody of a
will after the death of the testator neglects
without reasonable cause to deliver the same to
the court having jurisdiction, after notice by the
court so to do, he may be committed to the
prison of the province by a warrant issued by the
court, and there kept in close confinement until
he delivers the will.
The foregoing provisions are now embodied in Rule 76
of the new Rules of Court, which took effect on July 1,
1940.
The proceeding for the probate of a will is one in rem,
with notice by publication to the whole world and with
personal notice to each of the known heirs, legatees,
and devisees of the testator (section 630, C. c. P., and
sections 3 and 4, Rule 77). Altho not contested (section
5, Rule 77), the due execution of the will and the fact
that the testator at the time of its execution was of sound
and disposing mind and not acting under duress,
menace, and undue influence or fraud, must be proved
to the satisfaction of the court, and only then may the will
be legalized and given effect by means of a certificate of
its allowance, signed by the judge and attested by the
seal of the court; and when the will devises real property,
attested copies thereof and of the certificate of
allowance must be recorded in the register of deeds of
the province in which the land lies. (Section 12, Rule 77,
and section 624, C. C. P.)
It will readily be seen from the above provisions of the
law that the presentation of a will to the court for probate
is mandatory and its allowance by the court is essential
and indispensable to its efficacy. To assure and compel

!65

the probate of will, the law punishes a person who

neglects his duty to present it to the court with a fine not
exceeding P2,000, and if he should persist in not
presenting it, he may be committed to prision and kept
there until he delivers the will.
The Court of Appeals took express notice of these
requirements of the law and held that a will, unless
probated, is ineffective. Nevertheless it sanctioned the
procedure adopted by the respondent for the following
reasons:
The majority of the Court is of the opinion that if
this case is dismissed ordering the filing of
testate proceedings, it would cause injustice,
incovenience, delay, and much expense to the
parties, and that therefore, it is preferable to
leave them in the very status which they
themselves have chosen, and to decide their
controversy once and for all, since, in a similar
case, the Supreme Court applied that same
criterion (Leao vs. Leao, supra), which is now
sanctioned by section 1 of Rule 74 of the Rules
of Court. Besides, section 6 of Rule 124
provides that, if the procedure which the court
ought to follow in the exercise of its jurisdiction is
not specifically pointed out by the Rules of
Court, any suitable process or mode of
procedure may be adopted which appears most
consistent to the spirit of the said Rules. Hence,
we declare the action instituted by the plaintiff to
be in accordance with law.
Let us look into the validity of these considerations.
Section 1 of Rule 74 provides as follows:
Section 1. Extrajudicial settlement by agreement
between heirs. If the decedent left no debts
and the heirs and legatees are all of age, or the
minors are represented by their judicial
guardians, the parties may, without securing
letters of administration, divide the estate among
themselves as they see fit by means of a public
instrument filed in the office of the register of
deeds, and should they disagree, they may do
so in an ordinary action of partition. If there is
only one heir or one legatee, he may adjudicate
to himself the entire estate by means of an
affidavit filed in the office of the register of
deeds. It shall be presumed that the decedent
left no debts if no creditor files a petition for
letters of administration within two years after
the death of the decedent.
That is a modification of section 596 of the Code of Civil
Procedure, which reads as follows:
Sec. 596. Settlement of Certain Intestates
Without Legal Proceedings. Whenever all the
heirs of a person who died intestate are of lawful
age and legal capacity and there are no debts
due from the estate, or all the debts have been
paid the heirs may, by agreement duly executed
in writing by all of them, and not otherwise,
apportion and divide the estate among

themselves, as they may see fit, without

proceedings in court.
The implication is that by the omission of the word
"intestate" and the use of the word "legatees" in section
1 of Rule 74, a summary extrajudicial settlement of a
deceased person's estate, whether he died testate or
intestate, may be made under the conditions specified.
Even if we give retroactive effect to section 1 of Rule 74
and apply it here, as the Court of Appeals did, we do not
believe it sanctions the nonpresentation of a will for
probate and much less the nullification of such will thru
the failure of its custodian to present it to the court for
probate; for such a result is precisely what Rule 76
sedulously provides against. Section 1 of Rule 74 merely
authorizes the extrajudicial or judicial partition of the
estate of a decedent "without securing letter of
administration." It does not say that in case the decedent
left a will the heirs and legatees may divide the estate
among themselves without the necessity of presenting
the will to the court for probate. The petition to probate a
will and the petition to issue letters of administration are
two different things, altho both may be made in the same
case. the allowance of a will precedes the issuance of
letters testamentary or of administration (section 4, Rule
78). One can have a will probated without necessarily
securing letters testamentary or of administration. We
hold that under section 1 of Rule 74, in relation to Rule
76, if the decedent left a will and no debts and the heirs
and legatees desire to make an extrajudicial partition of
the estate, they must first present that will to the court for
probate and divide the estate in accordance with the will.
They may not disregard the provisions of the will unless
those provisions are contrary to law. Neither may they so
away with the presentation of the will to the court for
probate, because such suppression of the will is contrary
to law and public policy. The law enjoins the probate of
the will and public policy requires it, because unless the
will is probated and notice thereof given to the whole
world, the right of a person to dispose of his property by
will may be rendered nugatory, as is attempted to be
done in the instant case. Absent legatees and devisees,
or such of them as may have no knowledge of the will,
could be cheated of their inheritance thru the collusion of
some of the heirs who might agree to the partition of the
estate among themselves to the exclusion of others.
In the instant case there is no showing that the various
legatees other than the present litigants had received
their respective legacies or that they had knowledge of
the existence and of the provisions of the will. Their right
under the will cannot be disregarded, nor may those
rights be obliterated on account of the failure or refusal
of the custodian of the will to present it to the court for
probate.
Even if the decedent left no debts and nobdy raises any
question as to the authenticity and due execution of the
will, none of the heirs may sue for the partition of the
estate in accordance with that will without first securing
its allowance or probate by the court, first, because the
law expressly provides that "no will shall pass either real
or personal estate unless it is proved and allowed in the

!66

proper court"; and, second, because the probate of a

will, which is a proceeding in rem, cannot be dispensed
with the substituted by any other proceeding, judicial or
extrajudicial, without offending against public policy
designed to effectuate the testator's right to dispose of
his property by will in accordance with law and to protect
the rights of the heirs and legatees under the will thru the
means provided by law, among which are the publication
and the personal notices to each and all of said heirs
and legatees. Nor may the court approve and allow the
will presented in evidence in such an action for partition,
which is one in personam, any more than it could decree
the registration under the Torrens system of the land
involved in an ordinary action for reinvindicacion or
partition.
We therefore believe and so hold that section 1 of Rule
74, relied upon by the Court of Appeals, does not
sanction the procedure adopted by the respondent.
The case of Leao vs. Leao (25 Phil., 180), cited by the
Court of Appeals, like section 1 of Rule 74, sanctions the
extrajudicial partition by the heirs of the properties left by
a decedent, but not the nonpresentation of a will for
probate. In that case one Paulina Ver executed a will on
October 11, 1902, and died on November 1, 1902. Her
will was presented for probate on November 10, 1902,
and was approved and allowed by the Court on August
16, 1904. In the meantime, and on November 10, 1902,
the heirs went ahead and divided the properties among
themselves and some of them subsequently sold and
disposed of their shares to third persons. It does not
affirmatively appear in the decision in that case that the
partition made by the heirs was not in accordance with
the will or that they in any way disregarded the will. In
closing the case by its order dated September 1, 1911,
the trial court validated the partition, and one of the
heirs, Cunegunda Leao, appealed. In deciding the
appeal this Court said:
The principal assignment of error is that the
lower court committed an error in deciding that
the heirs and legatees of the estate of Da.
Paulina Ver had voluntarily divided the estate
among themselves.
In resolving that question this Court said:
In view of the positive finding of the judge of the
lower court that there had been a voluntary
partition of the estate among the heirs and
legatees, and in the absence of positive proof to
the contrary, we must conclude that the lower
court had some evidence to support its
conclusion.
Thus it will be seen that as a matter of fact no question
of law was raised and decided in that case. That
decision cannot be relied upon as an authority for the
unprecedented and unheard of procedure adopted by
the respondent whereby she seeks to prove her status
as an acknowledged natural child of the decedent by his
will and attempts to nullify and circumvent the
testamentary dispositions made by him by not
presenting the will to the court for probate and by

claiming her legitime as an acknowledged natural child

on the basis of intestacy; and that in the face of express
mandatory provisions of the law requiring her to present
the will to the court for probate.
In the subsequent case of Riosa vs. Rocha (1926), 48
Phil. 737, this Court departed from the procedure
sanctioned by the trial court and impliedly approved by
this Court in the Leao case, by holding that an
extrajudicial partition is not proper in testate succession.
In the Riosa case the Court, speaking thru Chief Justice
Avancea, held:
1. EXTRAJUDICIAL PARTITION; NOT PROPER
IN TESTATE SUCCESSION. Section 596 of
the Code of Civil Procedure, authorizing the
heirs of a person who dies intestate to make
extrajudicial partition of the property of the
deceased, without going into any court of justice,
makes express reference to intestate
succession, and therefore excludes testate
succession.
2. ID.; EFFECTS OF; TESTATE SUCCESSION.
In the instant case, which is a testate
succession, the heirs made an extrajudicial
partition of the estate and at the same time
instituted proceeding for the probate of the will
and the administration of the estate. When the
time came for making the partition, they
submitted to the court the extrajudicial partition
previously made by them, which the court
approved. Held: That for the purposes of the
reservation and the rights and obligations
created thereby, in connection with the relatives
benefited, the property must not be deemed
transmitted to the heirs from the time the
extrajudicial partition was made, but from the
time said partition was approved by the court.
(Syllabus.)
The Court of Appeals also cites section 6 of Rule 124,
which provides that if the procedure which the court
ought to follow in the exercise of its jurisdiction is not
specifically pointed out by the Rules of Court, any
suitable process for mode of proceeding may be
adopted which appears most conformable to the spirit of
the said Rules. That provision is not applicable here for
the simple reason that the procedure which the court
ought to follow in the exercise of its jurisdiction is
specifically pointed out and prescribed in detail by Rules
74, 76, and 77 of the Rules of Court.
The Court of Appeals also said "that if this case is
dismissed, ordering the filing of testate proceedings, it
would cause injustice, inconvenience, delay, and much
expense to the parties." We see no injustice in requiring
the plaintiff not to violate but to comply with the law. On
the contrary, an injustice might be committed against the
other heirs and legatees mentioned in the will if the
attempt of the plaintiff to nullify said will by not
presenting it to the court for probate should be
sanctioned. As to the inconvenience, delay, and
expense, the plaintiff herself is to blame because she

!67

was the custodian of the will and she violated the duty
imposed upon her by sections 2, 4, and 5 of Rule 76,
which command her to deliver said will to the court on
pain of a fine not exceeding P2,000 and of imprisonment
for contempt of court. As for the defendant, he is not
complaining of inconvenience, delay, and expense, but
on the contrary he is insisting that the procedure
prescribed by law be followed by the plaintiff.
Our conclusion is that the Court of Appeals erred in
declaring the action instituted by the plaintiff to be in
accordance with law. It also erred in awarding relief to
the plaintiff in this action on the basis of intestacy of the
decedent notwithstanding the proven existence of a will
left by him and solely because said will has not been
probated due to the failure of the plaintiff as custodian
thereof to comply with the duty imposed upon her by the
law.
It is apparent that the defendant Ernesto M. Guevara,
who was named executor in said will, did not take any
step to have it presented to the court for probate and did
not signify his acceptance of the trust or refusal to
accept it as required by section 3 of Rule 76 (formerly
section 627 of the Code of Civil Procedure), because his
contention is that said will, insofar as the large parcel of
land in litigation is concerned, has been superseded by
the deed of sale exhibit 2 and by the subsequent
issuance of the Torrens certificate of title in his favor.
II
This brings us to the consideration of the second
question, referring to the efficacy of the deed of sale
exhibit 2 and the effect of the certificate of titled issued to
the defendant Ernesto M. Guevara. So that the parties
may not have litigated here in vain insofar as that
question is concerned, we deem it proper to decide it
now and obviate the necessity of a new action.
The deed of sale exhibit 2 executed by and between
Victorino L. Guevara and Ernesto M. Guevara before a
notary public on July 12, 1933, may be divided into two
parts: (a) insofar as it disposes of and conveys to
Ernesto M. Guevara the southern half of Victorino L.
Guevara's hacienda of 259-odd hectares in
consideration of P1 and other valuable considerations
therein mentioned; and (b) insofar as it declares that
Ernesto M. Guevara became the owner of the northern
half of the same hacienda by repurchasing it with his
own money from Rafael T. Puzon.
A. As to the conveyance of the southern half of the
hacienda to Ernesto M. Guevara in consideration of the
latter's assumption of the obligation to pay all the debts
of the deceased, the Court of Appeals found it to be valid
and efficacious because: "(a) it has not been proven that
the charges imposed as a condition is [are] less than the
value of the property; and (b) neither has it been proven
that the defendant did not comply with the conditions
imposed upon him in the deed of transfer." As a matter
of fact the Court of Appeals found" "It appears that the
defendant has been paying the debts left by his father.
To accomplish this, he had to alienate considerable
portions of the above-mentioned land. And we cannot

brand such alienation as anomalous unless it is proven

that they have exceeded the value of what he has
acquired by virtue of the deed of July 12, 1933, and that
of his corresponding share in the inheritance." The
finding of the Court of Appeals on this aspect of the case
is final and conclusive upon the respondent, who did not
appeal therefrom.
B. With regard to the northern half of the hacienda, the
findings of fact and of law made by the Court of Appeals
are as follows:
The defendant has tried to prove that with his
own money, he bought from Rafael Puzon onehalf of the land in question, but the Court a quo,
after considering the evidence, found it not
proven; we hold that such conclusion is well
founded. The acknowledgment by the deceased,
Victorino L. Guevara, of the said transactions,
which was inserted incidentally in the document
of July 12, 1933, is clearly belied by the fact that
the money paid to Rafael Puzon came from
Silvestre P. Coquia, to whom Victorino L.
Guevara had sold a parcel of land with the right
of repurchase. The defendant, acting for his
father, received the money and delivered it to
Rafael Puzon to redeem the land in question,
and instead of executing a deed of redemption
in favor of Victorino L. Guevara, the latter
executed a deed of sale in favor of the
defendant.
The plaintiff avers that she withdrew her
opposition to the registration of the land in the
name of the defendant, because of the latter's
promise that after paying all the debt of their
father, he would deliver to her and to the widow
their corresponding shares. As their father then
was still alive, there was no reason to require
the delivery of her share and that was why she
did not insist on her opposition, trusting on the
reliability and sincerity of her brother's promise.
The evidence shows that such promise was
really made. The registration of land under the
Torrens system does not have the effect of
altering the laws of succession, or the rights of
partition between coparceners, joint tenants, and
other cotenants nor does it change or affect in
any other way any other rights and liabilities
created by law and applicable to unregistered
land (sec. 70, Land Registration Law). The
plaintiff is not, then, in estoppel, nor can the
doctrine of res judicata be invoked against her
claim. Under these circumstances, she has the
right to compel the defendant to deliver her
corresponding share in the estate left by the
deceased, Victorino L. Guevara.
In his tenth to fourteenth assignments of error the
petitioner assails the foregoing findings of the Court of
Appeals. But the findings of fact made by said court are
final and not reviewable by us on certiorari. The Court of
Appeals found that the money with which the petitioner
repurchased the northern half of the land in question

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from Rafael Puzon was not his own but his father's, it
being the proceeds of the sale of a parcel of land made
by the latter to Silvestre P. Coquia. Said court also found
that the respondent withdrew her opposition to the
registration of the land in the name of the petitioner upon
the latter's promise that after paying all the debts of their
father he would deliver to her and to the widow their
corresponding shares. From these facts, it results that
the interested parties consented to the registration of the
land in question in the name of Ernesto M. Guevara
alone subject to the implied trust on account of which he
is under obligation to deliver and convey to them their
corresponding shares after all the debts of the original
owner of said land had been paid. Such finding does not
constitute a reversal of the decision and decree of
registration, which merely confirmed the petitioner's title;
and in the absence of any intervening innocent third
party, the petitioner may be compelled to fulfill the
promise by virtue of which he acquired his title. That is
authorized by section 70 of the Land Registration Act,
cited by the Court of Appeals, and by the decision of this
Court in Severino vs. Severino, 44 Phil., 343, and the
cases therein cited.
Upon this phase of the litigation, we affirm the finding of
the Court of Appeals that the northern half of the land
described in the will exhibit A and in original certificate of
title No. 51691 still belongs to the estate of the deceased
Victorino L. Guevara. In the event the petitioner Ernesto
M. Guevara has alienated any portion thereof, he is
under obligation to compensate the estate with an
equivalent portion from the southern half of said land
that has not yet been sold. In other words, to the estate
of Victorino L. Guevara still belongs one half of the total
area of the land described in said original certificate of
title, to be taken from such portions as have not yet been
sold by the petitioner, the other half having been lawfully
acquired by the latter in consideration of his assuming
the obligation to pay all the debts of the deceased.
Wherefore, that part of the decision of the Court of
Appeals which declares in effect that notwithstanding
exhibit 2 and the issuance of original certificate of title
No. 51691 in the name of Ernesto M. Guevara, one half
of the land described in said certificate of title belongs to
the estate of Victorino L. Guevara and the other half to
Ernesto M. Guevara in consideration of the latter's
assumption of the obligation to pay all the debts of the
deceased, is hereby affirmed; but the judgment of said
court insofar as it awards any relief to the respondent
Rosario Guevara in this action is hereby reversed and
set aside, and the parties herein are hereby ordered to
present the document exhibit A to the proper court for
probate in accordance with law, without prejudice to
such action as the provincial fiscal of Pangasinan may
take against the responsible party or parties under
section 4 of Rule 76. After the said document is
approved and allowed by the court as the last will and
testament of the deceased Victorino L. Guevara, the
heirs and legatees therein named may take such action,
judicial or extrajudicial, as may be necessary to partition
the estate of the testator, taking into consideration the

pronouncements made in part II of this opinion. No

finding as to costs in any of the three instances.
ART. 817
G.R. No. L-22595

November 1, 1927

Testate Estate of Joseph G. Brimo, JUAN MICIANO,

administrator, petitioner-appellee,
vs.ANDRE BRIMO, opponent-appellant.
The partition of the estate left by the deceased Joseph
G. Brimo is in question in this case.
The judicial administrator of this estate filed a scheme of
partition. Andre Brimo, one of the brothers of the
deceased, opposed it. The court, however, approved it.
The errors which the oppositor-appellant assigns are:
(1) The approval of said scheme of partition; (2) denial of
his participation in the inheritance; (3) the denial of the
motion for reconsideration of the order approving the
partition; (4) the approval of the purchase made by the
Pietro Lana of the deceased's business and the deed of
transfer of said business; and (5) the declaration that the
Turkish laws are impertinent to this cause, and the
failure not to postpone the approval of the scheme of
partition and the delivery of the deceased's business to
Pietro Lanza until the receipt of the depositions
requested in reference to the Turkish laws.
The appellant's opposition is based on the fact that the
partition in question puts into effect the provisions of
Joseph G. Brimo's will which are not in accordance with
the laws of his Turkish nationality, for which reason they
are void as being in violation or article 10 of the Civil
Code which, among other things, provides the following:
Nevertheless, legal and testamentary
successions, in respect to the order of
succession as well as to the amount of the
successional rights and the intrinsic validity of
their provisions, shall be regulated by the
national law of the person whose succession is
in question, whatever may be the nature of the
property or the country in which it may be
situated.
But the fact is that the oppositor did not prove that said
testimentary dispositions are not in accordance with the
Turkish laws, inasmuch as he did not present any
evidence showing what the Turkish laws are on the
matter, and in the absence of evidence on such laws,
they are presumed to be the same as those of the
Philippines. (Lim and Lim vs. Collector of Customs, 36
Phil., 472.)
It has not been proved in these proceedings what the
Turkish laws are. He, himself, acknowledges it when he
desires to be given an opportunity to present evidence
on this point; so much so that he assigns as an error of
the court in not having deferred the approval of the
scheme of partition until the receipt of certain testimony
requested regarding the Turkish laws on the matter.

!69

The refusal to give the oppositor another opportunity to

prove such laws does not constitute an error. It is
discretionary with the trial court, and, taking into
consideration that the oppositor was granted ample
opportunity to introduce competent evidence, we find no
abuse of discretion on the part of the court in this
particular. There is, therefore, no evidence in the record
that the national law of the testator Joseph G. Brimo was
violated in the testamentary dispositions in question
which, not being contrary to our laws in force, must be
complied with and executed. lawphil.net
Therefore, the approval of the scheme of partition in this
respect was not erroneous.
In regard to the first assignment of error which deals with
the exclusion of the herein appellant as a legatee,
inasmuch as he is one of the persons designated as
such in will, it must be taken into consideration that such
exclusion is based on the last part of the second clause
of the will, which says:
Second. I like desire to state that although by
law, I am a Turkish citizen, this citizenship
having been conferred upon me by conquest
and not by free choice, nor by nationality and, on
the other hand, having resided for a
considerable length of time in the Philippine
Islands where I succeeded in acquiring all of the
property that I now possess, it is my wish that
the distribution of my property and everything in
connection with this, my will, be made and
disposed of in accordance with the laws in force
in the Philippine islands, requesting all of my
relatives to respect this wish, otherwise, I annul
and cancel beforehand whatever disposition
found in this will favorable to the person or
persons who fail to comply with this request.
The institution of legatees in this will is conditional, and
the condition is that the instituted legatees must respect
the testator's will to distribute his property, not in
accordance with the laws of his nationality, but in
accordance with the laws of the Philippines.
If this condition as it is expressed were legal and valid,
any legatee who fails to comply with it, as the herein
oppositor who, by his attitude in these proceedings has
not respected the will of the testator, as expressed, is
prevented from receiving his legacy.
The fact is, however, that the said condition is void,
being contrary to law, for article 792 of the civil Code
provides the following:
Impossible conditions and those contrary to law
or good morals shall be considered as not
imposed and shall not prejudice the heir or
legatee in any manner whatsoever, even should
the testator otherwise provide.
And said condition is contrary to law because it
expressly ignores the testator's national law when,
according to article 10 of the civil Code above quoted,
such national law of the testator is the one to govern his
testamentary dispositions.

Said condition then, in the light of the legal provisions

above cited, is considered unwritten, and the institution
of legatees in said will is unconditional and consequently
valid and effective even as to the herein oppositor.
It results from all this that the second clause of the will
regarding the law which shall govern it, and to the
condition imposed upon the legatees, is null and void,
being contrary to law.
All of the remaining clauses of said will with all their
dispositions and requests are perfectly valid and
effective it not appearing that said clauses are contrary
to the testator's national law.
Therefore, the orders appealed from are modified and it
is directed that the distribution of this estate be made in
such a manner as to include the herein appellant Andre
Brimo as one of the legatees, and the scheme of
partition submitted by the judicial administrator is
approved in all other respects, without any
pronouncement as to costs.
So ordered.
.R. Nos. L-3087 and L-3088

July 31, 1954

In re: Testate Estate of the deceased JOSE B.

SUNTAY. SILVINO SUNTAY, petitioner-appellant,
vs.In re: Intestate Estate of the deceased JOSE B.
SUNTAY,
FEDERICO C. SUNTAY, administrator-appellee.
This is an appeal from a decree of the Court of First
Instance of Bulacan disallowing the alleged will and
testament executed in Manila on November 1929, and
the alleged last will and testament executed in Kulangsu,
Amoy, China, on 4 January 1931, by Jose B. Suntay.
The value of the estate left by the deceased is more than
P50,000.
On 14 May 1934 Jose B. Suntay, a Filipino citizen and
resident of the Philippines, died in the city of Amoy,
Fookien province, Republic of China, leaving real and
personal properties in the Philippines and a house in
Amoy, Fookien province, China, and children by the first
marriage had with the late Manuela T. Cruz namely,
Apolonio, Concepcion, Angel, Manuel, Federico, Ana,
Aurora, Emiliano, and Jose, Jr. and a child named
Silvino by the second marriage had with Maria Natividad
Lim Billian who survived him. Intestate proceedings were
instituted in the Court of First Instance of Bulacan
(special proceedings No. 4892) and after hearing letters
of administration were issued to Apolonio Suntay. After
the latter's death Federico C. Suntay was appointed
administrator of the estate. On 15 October 1934 the
surviving widow filed a petition in the Court of First
Instance of Bulacan for the probate of a last will and
testament claimed to have been executed and signed in
the Philippines on November 1929 by the late Jose B.
Suntay. This petition was denied because of the loss of
said will after the filing of the petition and before the
hearing thereof and of the insufficiency of the evidence
to establish the loss of the said will. An appeal was taken
from said order denying the probate of the will and this
Court held the evidence before the probate court

!70

sufficient to prove the loss of the will and remanded the

case to the Court of First Instance of Bulacan for the
further proceedings (63 Phil., 793). In spite of the fact
that a commission from the probate court was issued on
24 April 1937 for the taking of the deposition of Go Toh,
an attesting witness to the will, on 7 February 1938 the
probate court denied a motion for continuance of the
hearing sent by cablegram from China by the surviving
widow and dismissed the petition. In the meantime the
Pacific War supervened. After liberation, claiming that he
had found among the files, records and documents of his
late father a will and testament in Chinese characters
executed and signed by the deceased on 4 January
1931 and that the same was filed, recorded and
probated in the Amoy district court, Province of Fookien,
China, Silvino Suntay filed a petition in the intestate
proceedings praying for the probate of the will executed
in the Philippines on November 1929 (Exhibit B) or of the
will executed in Amoy, Fookien, China, on 4 January
1931 (Exhibit N).
There is no merit in the contention that the petitioner
Silvino Suntay and his mother Maria Natividad Lim
Billian are estopped from asking for the probate of the
lost will or of the foreign will because of the transfer or
assignment of their share right, title and interest in the
estate of the late Jose B. Suntay to Jose G. Gutierrez
and the spouses Ricardo Gutierrez and Victoria Goo
and the subsequent assignment thereof by the
assignees to Francisco Pascual and by the latter to
Federico C. Suntay, for the validity and legality of such
assignments cannot be threshed out in this proceedings
which is concerned only with the probate of the will and
testament executed in the Philippines on November
1929 or of the foreign will allegedly executed in Amoy on
4 January 1931 and claimed to have been probated in
the municipal district court of Amoy, Fookien province,
Republic of China.
As to prescription, the dismissal of the petition for
probate of the will on 7 February 1938 was no bar to the
filing of this petition on 18 June 1947, or before the
expiration of ten years.
As to the lost will, section 6, Rule 77, provides:
No will shall be proved as a lost or destroyed will
unless the execution and validity of the same be
established, and the will is proved to have been
in existence at the time of the death of the
testator, or is shown to have been fraudulently or
accidentally destroyed in the lifetime of the
testator without his knowledge, nor unless its
provisions are clearly and distinctly proved by at
least two credible witnesses. When a lost will is
proved, the provisions thereof must be distinctly
stated and certified by the judge, under the seal
of the court, and the certificate must be filed and
recorded as other wills are filed and recorded.
The witnesses who testified to the provisions of the lost
will are Go Toh, an attesting witness, Anastacio Teodoro
and Ana Suntay. Manuel Lopez, who was an attesting
witness to the lost will, was dead at the time of the

hearing of this alternative petition. In his deposition Go

Toh testifies that he was one of the witnesses to the lost
will consisting of twenty-three sheets signed by Jose B.
Suntay at the bottom of the will and each and every
page thereof in the presence of Alberto Barretto, Manuel
Lopez and himself and underneath the testator's
signature the attesting witnesses signed and each of
them signed the attestation clause and each and every
page of the will in the presence of the testator and of the
other witnesses (answers to the 31st, 41st, 42nd, 49th,
50th, 55th and 63rd interrogatories, Exhibit D-1), but did
not take part in the drafting thereof (answer to the 11th
interrogatory,Id.); that he knew the contents of the will
written in Spanish although he knew very little of that
language (answers to the 22nd and 23rd interrogatories
and to X-2 cross-interrogatory, Id.) and all he knows
about the contends of the lost will was revealed to him
by Jose B. Suntay at the time it was executed (answers
to the 25th interrogatory and to X-4 and X-8 crossinterrogatories, Id.); that Jose B. Suntay told him that the
contents thereof are the same as those of the draft
(Exhibit B) (answers to the 33rd interrogatory and to X-8
cross-interrogatory, Id.) which he saw in the office of
Alberto Barretto in November 1929 when the will was
signed (answers to the 69th, 72nd, and 74th
interrogatories, Id); that Alberto Barretto handed the draft
and said to Jose B. Suntay: "You had better see if you
want any correction" (answers to the 81st, 82nd and
83rd interrogatories, Id.); that "after checking Jose B.
Suntay put the "Exhibit B" in his pocket and had the
original signed and executed" (answers to the 91st
interrogatory, and to X-18 cross-interrogatory, Id.); that
Mrs. Suntay had the draft of the will (Exhibit B)
translated into Chinese and he read the translation
(answers to the 67th interrogatory, Id.); that he did not
read the will and did not compare it (check it up) with the
draft (Exhibit B) (answers to X-6 and X-20 crossinterrogatories, Id.).
Ana Suntay testifies that sometime in September 1934 in
the house of her brother Apolonio Suntay she learned
that her father left a will "because of the arrival of my
brother Manuel Suntay, who was bringing along with him
certain document and he told us or he was telling us that
it was the will of our father Jose B. Suntay which was
taken from Go Toh. ..." (p. 524, t. s. n., hearing of 24
February 1948); that she saw her brother Apolonio
Suntay read the document in her presence and of
Manuel and learned of the adjudication made in the will
by her father of his estate, to wit: one-third to his
children, one-third to Silvino and his mother and the
other third to Silvino, Apolonio, Concepcion and Jose, Jr.
(pp. 526-8, 530-1, 542, t. s. n. Id.); that "after Apolonio
read that portion, then he turned over the document to
Manuel, and he went away," (p. 528, t. s. n., Id.). On
cross-examination, she testifies that she read the part of
the will on adjudication to know what was the share of
each heir (pp. 530, 544, t. s. n., Id.) and on redirect she
testifies that she saw the signature of her father, Go Toh,
Manuel Lopez and Alberto Barretto (p. 546, t. s. n., Id.).
Anastacio Teodoro testifies that one day in November
1934 (p. 273, t. s. n., hearing of 19 January 1948),

!71

before the last postponement of the hearing granted by

the Court, Go Toh arrived at his law office in the De los
Reyes Building and left an envelope wrapped in red
handkerchief [Exhibit C] (p. 32, t. s. n., hearing of 13
October 1947); that he checked up the signatures on the
envelope Exhibit A with those on the will placed in the
envelope (p. 33, t. s. n., Id.); that the will was exactly the
same as the draft Exhibit B (pp. 32, 47, 50, t. s. n., Id.).
If the will was snatched after the delivery thereof by Go
Toh to Anastacio Teodoro And returned by the latter to
the former because they could not agree on the amount
of fees, the former coming to the latter's office straight
from the boat (p. 315, t. s. n., hearing of 19 January
1948) that brought him to the Philippines from Amoy, and
that delivery took place in November 1934 (p. 273, t. s.
n., Id.), then the testimony of Ana Suntay that she saw
and heard her brother Apolonio Suntay read the will
sometime in September 1934 (p. 524, t. s. n., hearing of
24 February 1948), must not be true.
Although Ana Suntay would be a good witness because
she was testifying against her own interest, still the fact
remains that she did not read the whole will but only the
adjudication (pp. 526-8, 530-1, 542, t. s. n., Id.) and saw
only the signature, of her father and of the witnesses Go
Toh, Manuel Lopez and Alberto Barretto (p. 546, t. s.
n.,Id.). But her testimony on cross-examination that she
read the part of the will on adjudication is inconsistent
with her testimony in chief that after Apolonio had read
that part of the will he turned over or handed the
document to Manuel who went away (p. 528, t. s. n., Id.).
If it is true that Go Toh saw the draft Exhibit B in the
office of Alberto Barretto in November 1929 when the will
was signed, then the part of his testimony that Alberto
Barretto handed the draft to Jose B. Suntay to whom he
said: "You had better see if you want any correction" and
that "after checking Jose B. Suntay put the "Exhibit B" in
his pocket and had the original signed and executed"
cannot be true, for it was not the time for correcting the
draft of the will, because it must have been corrected
before and all corrections and additions written in lead
pencil must have been inserted and copied in the final
draft of the will which was signed on that occasion. The
bringing in for the draft (Exhibit B) on that occasion is
just to fit it within the framework of the appellant's theory.
At any rate, all of Go Toh's testimony by deposition on
the provisions of the alleged lost will is hearsay, because
he came to know or he learned to them from information
given him by Jose B. Suntay and from reading the
translation of the draft (Exhibit B) into Chinese.
Much stress is laid upon the testimony of Federico C.
Suntay who testifies that he read the supposed will or
the alleged will of his father and that the share of the
surviving widow, according to the will, is two-thirds of the
estate (p. 229, t. s. n., hearing of 24 October 1947). But
this witness testified to oppose the appointment of a coadministrator of the estate, for the reason that he had
acquired the interest of the surviving widow not only in
the estate of her deceased husband but also in the
conjugal property (pp. 148, 205, 228, 229, 231, t. s.
n., Id.) Whether he read the original will or just the copy

thereof (Exhibit B) is not clear. For him the important

point was that he had acquired all the share,
participation and interest of the surviving widow and of
the only child by the second marriage in the estate of his
deceased father. Be that as it may, his testimony that
under the will the surviving widow would take two-thirds
of the estate of the late Jose B. Suntay is at variance
with Exhibit B and the testimony of Anastacio Teodoro.
According to the latter, the third for strict legitime is for
the ten children; the third for betterment is for Silvino,
Apolonio, Concepcion and Jose Jr.; and the third for free
disposal is for the surviving widow and her child Silvino.
Hence, granting that there was a will duly executed by
Jose B. Suntay placed in the envelope (Exhibit A) and
that it was in existence at the time of, and not revoked
before, his death, still the testimony of Anastacio
Teodoro alone falls short of the legal requirement that
the provisions of the lost will must be "clearly and
distinctly proved by at least two credible witnesses."
Credible witnesses mean competent witnesses and
those who testify to facts from or upon hearsay are
neither competent nor credible witnesses.
On the other hand, Alberto Barretto testifies that in the
early part of 1929 he prepared or drew up two mills for
Jose B. Suntay at the latter's request, the rough draft of
the first will was in his own handwriting, given to Manuel
Lopez for the final draft or typing and returned to him;
that after checking up the final with the rough draft he
tore it and returned the final draft to Manuel Lopez; that
this draft was in favor of all the children and the widow
(pp. 392-4, 449, t. s. n., hearing of 21 February 1948);
that two months later Jose B. Suntay and Manuel Lopez
called on him and the former asked him to draw up
another will favoring more his wife and child Silvino; that
he had the rough draft of the second will typed (pp. 395,
449 t. s. n., Id.) and gave it to Manuel Lopez (p. 396, t. s.
n., Id.); that he did not sign as witness the second will of
Jose B. Suntay copied from the typewritten draft [Exhibit
B] (p. 420, t. s. n., Id.); that the handwritten insertions or
additions in lead pencil to Exhibit B are not his (pp.
415-7 435-6, 457, t. s. n., Id.); that the final draft of the
first will made up of four or five pages (p. 400, t. s.
n., Id.) was signed and executed, two or three months
after Suntay and Lopez had called on him (pp. 397-8,
403, 449, t. s. n.,Id.) in his office at the Cebu Portland
Cement in the China Banking Building on Dasmarias
street by Jose B. Suntay, Manuel Lopez and a
Chinaman who had all come from Hagonoy (p. 398, t. s.
n., Id.); that on that occasion they brought an envelope
(Exhibit A) where the following words were written:
"Testamento de Jose B. Suntay" (pp. 399, 404, t. s.
n., Id.); that after the signing of the will it was placed
inside the envelope (Exhibit A) together with an inventory
of the properties of Jose B. Suntay and the envelope
was sealed by the signatures of the testator and the
attesting witnesses (pp. 398, 401, 441, 443, 461, t. s.
n., Id.); that he again saw the envelope (Exhibit A) in his
house one Saturday in the later part of August 1934,
brought by Go Toh and it was then in perfect condition
(pp. 405-6, 411, 440-2, t. s. n., Id.); that on the following
Monday Go Toh went to his law office bringing along with

!72

him the envelope (Exhibit A) in the same condition; that

he told Go Toh that he would charge P25,000 as fee for
probating the will (pp. 406, 440-2, Id.); that Go Toh did
not leave the envelope (Exhibit A) either in his house or
in his law office (p. 407, t. s. n., Id.); that Go Toh said he
wanted to keep it and on no occasion did Go Toh leave it
to him (pp. 409, 410, t. s. n., Id.).
The testimony of Go Toh taken and heard by Assistant
Fiscal F. B. Albert in connection with the complaint for
estafa filed against Manuel Suntay for the alleged
snatching of the envelope (Exhibit A), corroborates the
testimony of Alberto Barretto to the effect that only one
will was signed by Jose B. Suntay at his office in which
he (Alberto Barretto), Manuel Lopez and Go Toh took
part as attesting witnesses (p. 15, t. s. n., Exhibit 6). Go
Toh testified before the same assistant fiscal that he did
not leave the will in the hands of Anastacio Teodoro (p.
26, t. s. n., Exhibit 6). He said, quoting his own words,
"Because I can not give him this envelope even though
the contract (on fees) was signed. I have to bring that
document to court or to anywhere else myself." (p. 27, t.
s. n., Exhibit 6).
As to the will claimed to have been executed on 4
January 1931 in Amoy, China, the law on the point in
Rule 78. Section 1 of the rule provides:
Wills proved and allowed in a foreign country,
according to the laws of such country, may be
allowed, filed, and recorded by the proper Court
of First Instance in the Philippines.
Section 2 provides:
When a copy of such will and the allowance
thereof, duly authenticated, is filed with a petition
for allowance in the Philippines, by the executor
or other person interested, in the court having
jurisdiction, such court shall fix a time and place
for the hearing, and cause notice thereof to be
given as in case of an original will presented for
allowance.
Section 3 provides:
If it appears at the hearing that the will should be
allowed in the Philippines, the court shall so
allow it, and a certificate of its allowance, signed
by the Judge, and attested by the seal of the
courts, to which shall be attached a copy of the
will, shall be filed and recorded by the clerk, and
the will shall have the same effect as if originally
proved and allowed in such court.
The fact that the municipal district court of Amoy, China,
is a probate court must be proved. The law of China on
procedure in the probate or allowance of wills must also
be proved. The legal requirements for the execution of a
valid will in China in 1931 should also be established by
competent evidence. There is no proof on these points.
The unverified answers to the questions propounded by
counsel for the appellant to the Consul General of the
Republic of China set forth in Exhibits R-1 and R-2,
objected to by counsel for the appellee, are inadmissible,
because apart from the fact that the office of Consul

General does not qualify and make the person who

holds it an expert on the Chinese law on procedure in
probate matters, if the same be admitted, the adverse
party would be deprived of his right to confront and
cross-examine the witness. Consuls are appointed to
attend to trade matters. Moreover, it appears that all the
proceedings had in the municipal district court of Amoy
were for the purpose of taking the testimony of two
attesting witnesses to the will and that the order of the
municipal district court of Amoy does not purport to
probate the will. In the absence of proof that the
municipal district court of Amoy is a probate court and on
the Chinese law of procedure in probate matters, it may
be presumed that the proceedings in the matter of
probating or allowing a will in the Chinese courts are the
a deposition or to a perpetuation of testimony, and even
if it were so it does not measure same as those provided
for in our laws on the subject. It is a proceedings in rem
and for the validity of such proceedings personal notice
or by publication or both to all interested parties must be
made. The interested parties in the case were known to
reside in the Philippines. The evidence shows that no
such notice was received by the interested parties
residing in the Philippines (pp. 474, 476, 481, 503-4, t. s.
n., hearing of 24 February 1948). The proceedings had
in the municipal district court of Amoy, China, may be
likened toe or come up to the standard of such
proceedings in the Philippines for lack of notice to all
interested parties and the proceedings were held at the
back of such interested parties.
The order of the municipal district court of Amoy, China,
which reads as follows:
ORDER:
SEE BELOW
The above minutes were satisfactorily confirmed
by the interrogated parties, who declare that
there are no errors, after said minutes were
loudly read and announced actually in the court.
Done and subscribed on the Nineteenth day of
the English month of the 35th year of the
Republic of China in the Civil Section of the
Municipal District Court of Amoy, China.
HUANG KUANG CHENG
Clerk of Court
CHIANG TENG HWA
Judge
(Exhibit N-13, p. 89 Folder of Exhibits.).
does not purport to probate or allow the will which was
the subject of the proceedings. In view thereof, the will
and the alleged probate thereof cannot be said to have
been done in accordance with the accepted basic and
fundamental concepts and principles followed in the
probate and allowance of wills. Consequently, the
authenticated transcript of proceedings held in the
municipal district court of Amoy, China, cannot be
deemed and accepted as proceedings leading to the

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probate or allowance of a will and, therefore, the will

referred to therein cannot be allowed, filed and recorded
by a competent court of this country.
The decree appealed from is affirmed, without
pronouncement as to costs.
ART. 818
G.R. No. L-20234

December 23, 1964

PAULA DE LA CERNA, ET AL., petitioners,

vs.MANUELA REBACA POTOT, ET AL., and THE
HONORABLE COURT OF APPEALS, respondents.
Appeal by Paula de la Cerna and others from a decision
of the Court of Appeals, Sixth Division (C.A.-G.R. No.
23763-R) reversing that of the Court of First Instance of
Cebu (Civ. Case No. R-3819) and ordering the dismissal
of an action for partition.
The factual background appears in the following portion
of the decision of the Court of Appeals (Petition, Annex
A, pp. 2-4):
It appears that on May 9, 1939, the spouses,
Bernabe de la Serna and Gervasia Rebaca,
executed a joint last will and testament in the
local dialect whereby they willed that "our two
parcels of land acquired during our marriage
together with all improvements thereon shall be
given to Manuela Rebaca, our niece, whom we
have nurtured since childhood, because God did
not give us any child in our union, Manuela
Rebaca being married to Nicolas Potot", and
that "while each of the testators is yet living, he
or she will continue to enjoy the fruits of the two
lands aforementioned", the said two parcels of
land being covered by Tax No. 4676 and Tax No.
6677, both situated in sitio Bucao, barrio Lugo,
municipality of Borbon, province of Cebu.
Bernabe dela Serna died on August 30, 1939,
and the aforesaid will was submitted to probate
by said Gervasia and Manuela before the Court
of First Instance of Cebu which, after due
publication as required by law and there being
no opposition, heard the evidence, and, by
Order of October 31, 1939; in Special
Proceedings No. 499, "declara legalizado el
documento Exhibit A como el testamento y
ultima voluntad del finado Bernabe de la Serna
con derecho por parte du su viuda superstite
Gervasia Rebaca y otra testadora al propio
tiempo segun el Exhibit A de gozar de los frutos
de los terranos descritos en dicho documents; y
habido consideracion de la cuantia de dichos
bienes, se decreta la distribucion sumaria de los
mismos en favor de la logataria universal
Manuela Rebaca de Potot previa prestacion por
parte de la misma de una fianza en la sum de
P500.00 para responder de cualesquiera
reclamaciones que se presentare contra los
bienes del finado Bernabe de la Serna de los
aos desde esta fecha" (Act Esp. 499,
Testamentaria Finado Bernabe de la Serna)

Upon the death of Gervasia Rebaca on October

14, 1952, another petition for the probate of the
same will insofar as Gervasia was concerned
was filed on November 6, 1952, being Special
Proceedings No. 1016-R of the same Court of
First Instance of Cebu, but for failure of the
petitioner, Manuela R. Potot and her attorney,
Manuel Potot to appear, for the hearing of said
petition, the case was dismissed on March 30,
1954 Spec. Proc. No. 1016-R, In the matter of
the Probate of the Will of Gervasia Rebaca).
The Court of First Instance ordered the petition heard
and declared the testament null and void, for being
executed contrary to the prohibition of joint wills in the
Civil Code (Art. 669, Civil Code of 1889 and Art. 818,
Civil Code of the Philippines); but on appeal by the
testamentary heir, the Court of Appeals reversed, on the
ground that the decree of probate in 1939 was issued by
a court of probate jurisdiction and conclusive on the due
execution of the testament. Further, the Court of Appeals
declared that:
... . It is true the law (Art. 669, old Civil Code; Art.
818, new Civil Code). prohibits the making of a
will jointly by two or more persons either for their
reciprocal benefit or for the benefit of a third
person. However, this form of will has long been
sanctioned by use, and the same has continued
to be used; and when, as in the present case,
one such joint last will and testament has been
admitted to probate by final order of a Court of
competent jurisdiction, there seems to be no
alternative except to give effect to the provisions
thereof that are not contrary to law, as was done
in the case of Macrohon vs. Saavedra, 51 Phil.
267, wherein our Supreme Court gave effect to
the provisions of the joint will therein mentioned,
saying, "assuming that the joint will in question is
valid."
Whence this appeal by the heirs intestate of the
deceased husband, Bernabe de la Cerna.
The appealed decision correctly held that the final
decree of probate, entered in 1939 by the Court of First
Instance of Cebu (when the testator, Bernabe de la
Cerna, died), has conclusive effect as to his last will and
testament despite the fact that even then the Civil Code
already decreed the invalidity of joint wills, whether in
favor of the joint testators, reciprocally, or in favor of a
third party (Art. 669, old Civil Code). The error thus
committed by the probate court was an error of law, that
should have been corrected by appeal, but which did not
affect the jurisdiction of the probate court, nor the
conclusive effect of its final decision, however
erroneous. A final judgment rendered on a petition for
the probate of a will is binding upon the whole world
(Manalo vs. Paredes, 47 Phil. 938; In re Estates of
Johnson, 39 Phil. 156); and public policy and sound
practice demand that at the risk of occasional errors
judgment of courts should become final at some definite
date fixed by law. Interest rei publicae ut finis set
litium (Dy Cay vs. Crossfield, 38 Phil, 521, and other

!74

cases cited in 2 Moran, Comments on the Rules of Court

(1963 Ed., p. 322).
Petitioners, as heirs and successors of the late Bernabe
de la Cerna, are concluded by the 1939 decree admitting
his will to probate. The contention that being void the will
cannot be validated, overlooks that the ultimate decision
on Whether an act is valid or void rests with the courts,
and here they have spoken with finality when the will
was probated in 1939. On this court, the dismissal of
their action for partition was correct.
But the Court of Appeals should have taken into account
also, to avoid future misunderstanding, that the probate
decree in 1989 could only affect the share of the
deceased husband, Bernabe de la Cerna. It could not
include the disposition of the share of the wife, Gervasia
Rebaca, who was then still alive, and over whose
interest in the conjugal properties the probate court
acquired no jurisdiction, precisely because her estate
could not then be in issue. Be it remembered that prior to
the new Civil Code, a will could not be probated during
the testator's lifetime.
It follows that the validity of the joint will, in so far as the
estate of the wife was concerned, must be, on her death,
reexamined and adjudicated de novo, since a joint will is
considered a separate will of each testator. Thus
regarded, the holding of the court of First Instance of
Cebu that the joint will is one prohibited by law was
correct as to the participation of the deceased Gervasia
Rebaca in the properties in question, for the reasons
extensively discussed in our decision in Bilbao vs.
Bilbao, 87 Phil. 144, that explained the previous holding
in Macrohon vs. Saavedra, 51 Phil. 267.

had signed by mark, it nowhere appeared in the will who

had written the signature or that it had been written at his
request. The second, that the witness Antonino
Pandaraoan could not really have signed the attestation
clause because, at the time it was executed, he was
attending a session of the municipal council of Piddig as
a member thereof. Third: That as to the other witness,
Segundino Asis, the will mentioned and confirmed a sale
of land to him by the testator, and he being thereby an
interested party his testimony could not be believed.
We do not believe that any of the objections are well
founded and the judgment refusing its probate must,
therefore, be reversed.
Section 618 of the Code of Civil Procedure provides in
part:
No will, except as provided in the preceding
section, shall be valid to pass any estate, real or
personal, nor charge or affect the same, unless
it be in writing and signed by the testator, 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 each other. . . .
It is nowhere required that, where the testator is unable
to write, the fact that his signature was written by some
other person, at his request and express direction,
should appear in the body of the will itself. In the case
of Barut vs. Cabacungan (21 Phil. Rep., 461, 463) we
held the following:

This is an appeal from a judgment of the Court of First

Instance of the Province of Ilocos Norte denying the
probate of a will.

From these provisions it is entirely clear that,

with respect to the validity of the will, it is
unimportant whether the person who writes the
name of the testatrix signs his own or not. The
important thing is that it clearly appears that the
name of the testatrix was signed at her express
direction in the presence of three witnesses and
that they attested and subscribed it in her
presence and in the presence of each other.
That is all the statute requires. It may be wise as
a practical matter that the one who signs the
testator's name signs also his own; but that is
not essential to the validity of the will. Whether
one person or another signed the name of the
testatrix in this case is absolutely unimportant so
far as the validity of her will is concerned. The
plain wording of the statute shows that the
requirement laid down by the trial court, if it did
lay it down, is absolutely unnecessary under the
law; and the reasons underlying the provisions
of the statute relating to the execution of wills do
not in any sense require such a provision. From
the standpoint of language it is an impossibility
to draw from the words of the law the inference
that the person who signs the name of the
testator must sign his own name also. The law
requires only three witnesses to a will, not four.

The learned court below based its judgment upon three

grounds. The first one was that, although the testator

Nor is such requirement found in any other

branch of the law. The name of a person who is

Therefore, the undivided interest of Gervasia Rebaca

should pass upon her death to her heirs intestate, and
not exclusively to the testamentary heir, unless some
other valid will in her favor is shown to exist, or unless
she be the only heir intestate of said Gervasia.
It is unnecessary to emphasize that the fact that joint
wills should be in common usage could not make them
valid when our Civil Codes consistently invalidated them,
because laws are only repealed by other subsequent
laws, and no usage to the contrary may prevail against
their observance (Art. 5, Civ. Code of 1889; Art. 7, Civil
Code of the Philippines of 1950).
WITH THE FOREGOING MODIFICATION, the judgment
of the Court of Appeals in CA-G.R. No. 23763-R is
affirmed. No Costs.
ART. 821
G.R. No. L-7647

March 27, 1914

DOMINGO CALUYA, petitioner-appellant,

vs.LUCINA DOMINGO, respondent-appellee.

!75

unable to write may be signed by another, by

express direction, to any instrument known to
the law. There is no necessity whatever, so far
as the validity of the instrument is concerned, for
the person who writes the name of the principal
in the document to sign his pen name also. As a
matter of policy it may be wise that he did so
inasmuch as it would give such intimation as
would enable a person proving the document to
demonstrate more readily the execution by the
principal. But as a matter of essential validity of
the document, it is unnecessary. The main thing
to be established in the execution of the will is
the signature of the testator. If that signature is
proved, whether it be written by himself or by
another at his request, it is none the less valid,
and the fact of such signature can be proved as
perfectly and as completely when the person
signing for the principal omits to sign his own
name as it can when he actually signs. To hold a
will invalid for the lack of the signature of the
person signing the name of the principal is, in
the particular case, a complete abrogation of the
law of wills, as it rejects and destroys a will
which the status expressly declares is valid.
The section above quoted also provides that "the
attestation clause shall state the fact that the testator
signed the will, or caused it to be signed by some other
person, at his express direction, in the presence of the
witnesses, and that they attested and subscribed it in his
presence and in the presence of each other. But the
absence of such form of attestation shall not render the
will invalid if it is proven that the will was in fact signed
and attested as in this section provided."
Not only does the attestation clause comply with the
requirements of this section, but it appears clearly
proved in evidence that the name of the testator was
signed by another person at his request and under his
direction and in his presence and in the presence of the
witnesses to the will. Moreover, as appears from the last
clause of the section, if the attestation clause is
defective, or even absent, the will is nevertheless valid
provided it is satisfactorily proved that it was in fact
signed and executed as provided by law.
As to the second objection, namely, that Antonino
Pandaraoan could not have signed the will as a witness
thereto, as stated in the attestation clause, because he
was attending a meeting of the municipal council of
Piddig at the time the will is alleged to have been
executed, we believe this also to be without merit. It
does not appear in the evidence of the opposition that
the witness Pandaraoan was attending a meeting of the
municipal council of Piddig from something like 10
o'clock till 12.30 o'clock of the day on which the will was
executed ands that the will was executed sometime
between 10 and 12 o'clock. To much weight, however,
can not be given to the testimony relative to the precise
time of the execution of the will. The barrio of Piddig is
only a short distance from the house in which the will
was executed and it would have taken but a short time to

cover the distance. the witness Pandaraoan himself

testified directly and positively that, after having left the
meeting of the municipal council, he went to the house of
the testator by appointment and there signed the will as
stated in the attestation clause. The other witnesses to
the will support this declaration. Not only this, but the
notary public who drew up the will and who translated it
to the testator and who was present at the time of its
execution, declared and testified that the witnesses
whose names appear upon the will were present at the
time it was executed by the testator and that they signed
the same at his request and in his presence and in the
presence of each other. All of the witnesses to the will
unite in declaring that they were there present at the
time the will was executed and that they signed as
witnesses in the presence of the testator and of each
other. The mere fact that there was a session of the
municipal council of Piddig about the same time that the
will was executed is not necessarily conclusive against
the fact that Antonino Pandaraoan was present and
signed as a subscribing witness as he declares.
Mistakes in time are easily made among witnesses who
measure time not so much by clocks or watches as by
the sun. Antonino Pandaraoan testified that the
municipal council began its session about 10 o'clock;
that in order to attend the execution of the will, as he had
agreed with the notary public he would do, he was
obliged to leave the session before it terminated; that he
so left the session, mounted a horse and arrived at the
house of the testator at about 12 o'clock, in time to take
part in the execution of the ill as stated in the attestation
clause.
We do not believe that the clear and positive testimony
of the witnesses to the will and of the notary public is
overcome by the evidence offered in opposition to the
probate.
As to the third ground upon which the court based its
decision; namely, that the will having mentioned and
confirmed a sale of land to Segundino Asis, one of the
witnesses to the will, while not rendering the will entirely
invalid, throws great doubt upon the legality of its
execution and especially the testimony of said witness
relating thereto.
Section 622 provides:
If a person attests the execution of a will, to
whom or to whose wife or husband, or parent, or
child, a beneficial devise, legacy, or interest, of
or affecting real or personal estate, is given by
such will, such devise, legacy, or interest shall,
so far only as concerns such person, or the wife
or husband, or parent or child of such person, or
anyone claiming under such person or such wife
or husband, or parent or child, be void, unless
there are three other competent witnesses to
such will, and such person so attesting shall be
admitted as a witness as if such devise, legacy,
or interest had not been made or given. But a
mere charge on the real or personal estate of
the testator, for the payment of debts, shall not

!76

prevent his creditors from being competent

witnesses to his will.
As will readily be seen on reading this section, nothing in
the will before us relative to the sale of land to
Segundino Asis creates such an interest therein as falls
within the provisions thereof. Indeed, no interest of any
kind was created by the will in favor of Segundino Asis,
nor did it convey or transfer of any interest to him. It
simply mentioned a fact already consummated, a sale
already made. Even if, however, the will had conveyed
an interest to Segundino Asis, it would not have been for
that reason void. Only that clause of the will conveying
an interest to him would have been void; the remainder
could have stood and would have stood as a valid
testament.
We are confident from a thorough examination of the
record that a fair preponderance of the evidence is in
favor of the proponents, and there being no legal
impediment to the probate the court erred in refusing it.
The judgment appealed from is hereby reversed and the
cause remanded to the court whence it came with
instructions to legalize and probate the will in
accordance with the petition.
ART. 828
G.R. No. 76464 February 29, 1988
TESTATE ESTATE OF THE LATE ADRIANA MALOTO,
ALDINA MALOTO CASIANO, CONSTANCIO
MALOTO, PURIFICACION MIRAFLOR, ROMAN
CATHOLIC CHURCH OF MOLO, AND ASILO DE
MOLO,petitioners,
vs. COURT OF APPEALS, PANFILO MALOTO AND
FELINO MALOTO, respondents.
This is not the first time that the parties to this case
come to us. In fact, two other cases directly related to
the present one and involving the same parties had
already been decided by us in the past. In G.R. No.
L-30479, 1which was a petition for certiorari and
mandamus instituted by the petitioners herein, we
dismissed the petition ruling that the more appropriate
remedy of the petitioners is a separate proceeding for
the probate of the will in question. Pursuant to the said
ruling, the petitioners commenced in the then Court of
First Instance of Iloilo, Special Proceeding No. 2176, for
the probate of the disputed will, which was opposed by
the private respondents presently, Panfilo and Felino
both surnamed Maloto. The trial court dismissed the
petition on April 30, 1970. Complaining against the
dismissal, again, the petitioners came to this Court on a
petition for review by certiorari. 2 Acting on the said
petition, we set aside the trial court's order and directed
it to proceed to hear the case on the merits. The trial
court, after hearing, found the will to have already been
revoked by the testatrix. Adriana Maloto, and thus,
denied the petition. The petitioners appealed the trial
court's decision to the Intermediate Appellate Court
which, on June 7, 1985, affirmed the order. The
petitioners' motion for reconsideration of the adverse
decision proved to be of no avail, hence, this petition.

For a better understanding of the controversy, a factual

account would be a great help.
On October 20, 1963, Adriana Maloto died leaving as
heirs her niece and nephews, the petitioners Aldina
Maloto-Casiano and Constancio, Maloto, and the private
respondents Panfilo Maloto and Felino Maloto. Believing
that the deceased did not leave behind a last will and
testament, these four heirs commenced on November 4,
1963 an intestate proceeding for the settlement of their
aunt's estate. The case was instituted in the then Court
of First Instance of Iloilo and was docketed as Special
Proceeding No. 1736. However, while the case was still
in progress, or to be exact on February 1, 1964, the
parties Aldina, Constancio, Panfilo, and Felino
executed an agreement of extrajudicial settlement of
Adriana's estate. The agreement provided for the
division of the estate into four equal parts among the
parties. The Malotos then presented the extrajudicial
settlement agreement to the trial court for approval
which the court did on March 21, 1964. That should have
signalled the end of the controversy, but, unfortunately, it
had not.
Three years later, or sometime in March 1967, Atty.
Sulpicio Palma, a former associate of Adriana's counsel,
the late Atty. Eliseo Hervas, discovered a document
entitled "KATAPUSAN NGA PAGBUBULAT-AN
(Testamento)," dated January 3,1940, and purporting to
be the last will and testament of Adriana. Atty. Palma
claimed to have found the testament, the original copy,
while he was going through some materials inside the
cabinet drawer formerly used by Atty. Hervas. The
document was submitted to the office of the clerk of the
Court of First Instance of Iloilo on April 1, 1967.
Incidentally, while Panfilo and Felino are still named as
heirs in the said will, Aldina and Constancio are
bequeathed much bigger and more valuable shares in
the estate of Adriana than what they received by virtue of
the agreement of extrajudicial settlement they had earlier
signed. The will likewise gives devises and legacies to
other parties, among them being the petitioners Asilo de
Molo, the Roman Catholic Church of Molo, and
Purificacion Miraflor.
Thus, on May 24, 1967, Aldina and Constancio, joined
by the other devisees and legatees named in the will,
filed in Special Proceeding No. 1736 a motion for
reconsideration and annulment of the proceedings
therein and for the allowance of the will When the trial
court denied their motion, the petitioner came to us by
way of a petition for certiorari and mandamus assailing
the orders of the trial court . 3 As we stated earlier, we
dismissed that petition and advised that a separate
proceeding for the probate of the alleged will would be
the appropriate vehicle to thresh out the matters raised
by the petitioners.
Significantly, the appellate court while finding as
inconclusive the matter on whether or not the document
or papers allegedly burned by the househelp of Adriana,
Guadalupe Maloto Vda. de Coral, upon instructions of
the testatrix, was indeed the will, contradicted itself and
found that the will had been revoked. The respondent

!77

court stated that the presence of animus revocandi in the

destruction of the will had, nevertheless, been
sufficiently proven. The appellate court based its finding
on the facts that the document was not in the two safes
in Adriana's residence, by the testatrix going to the
residence of Atty. Hervas to retrieve a copy of the will left
in the latter's possession, and, her seeking the services
of Atty. Palma in order to have a new will drawn up. For
reasons shortly to be explained, we do not view such
facts, even considered collectively, as sufficient bases
for the conclusion that Adriana Maloto's will had been
effectively revoked.
There is no doubt as to the testamentary capacity of the
testatrix and the due execution of the will. The heart of
the case lies on the issue as to whether or not the will
was revoked by Adriana.
The provisions of the new Civil Code pertinent to the
issue can be found in Article 830.
Art. 830. No will shall be revoked except
in the following cases:
(1) By implication of law; or
(2) By some will, codicil, or other writing
executed as provided in case of wills: or
(3) By burning, tearing, cancelling, or
obliterating the will with the intention of
revoking it, by the testator himself, or by
some other person in his presence, and
by his express direction. If burned, torn
cancelled, or obliterated by some other
person, without the express direction of
the testator, the will may still be
established, and the estate distributed in
accordance therewith, if its contents,
and due execution, and the fact of its
unauthorized destruction, cancellation,
or obliteration are established according
to the Rules of Court. (Emphasis
Supplied.)
It is clear that the physical act of destruction of a will, like
burning in this case, does not per se constitute an
effective revocation, unless the destruction is coupled
with animus revocandi on the part of the testator. It is not
imperative that the physical destruction be done by the
testator himself. It may be performed by another person
but under 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.
In this case, while animus revocandi or the intention to
revoke, may be conceded, for that is a state of mind, yet
that requisite alone would not suffice. "Animus
revocandi is only one of the necessary elements for the
effective revocation of a last will and testament. The
intention to revoke must be accompanied by the overt
physical act of burning, tearing, obliterating, or cancelling
the will carried out by the testator or by another person
in his presence and under his express direction. There is
paucity of evidence to show compliance with these
requirements. For one, the document or papers burned

by Adriana's maid, Guadalupe, was not satisfactorily

established to be a will at all, much less the will of
Adriana Maloto. For another, the burning was not proven
to have been done under the express direction of
Adriana. And then, the burning was not in her presence.
Both witnesses, Guadalupe and Eladio, were one in
stating that they were the only ones present at the place
where the stove (presumably in the kitchen) was located
in which the papers proffered as a will were burned.
The respondent appellate court in assessing the
evidence presented by the private respondents as
oppositors in the trial court, concluded that the testimony
of the two witnesses who testified in favor of the will's
revocation appear "inconclusive." We share the same
view. Nowhere in the records before us does it appear
that the two witnesses, Guadalupe Vda. de Corral and
Eladio Itchon, both illiterates, were unequivocably
positive that the document burned was indeed Adriana's
will. Guadalupe, we think, believed that the papers she
destroyed was the will only because, according to her,
Adriana told her so. Eladio, on the other hand, obtained
his information that the burned document was the will
because Guadalupe told him so, thus, his testimony on
this point is double hearsay.
At this juncture, we reiterate that "(it) is an important
matter of public interest that a purported win is not
denied legalization on dubious grounds. Otherwise, the
very institution of testamentary succession will be
shaken to its very foundations ...." 4
The private respondents in their bid for the dismissal of
the present action for probate instituted by the
petitioners argue that the same is already barred by res
adjudicata. They claim that this bar was brought about
by the petitioners' failure to appeal timely from the order
dated November 16, 1968 of the trial court in the
intestate proceeding (Special Proceeding No. 1736)
denying their (petitioners') motion to reopen the case,
and their prayer to annul the previous proceedings
therein and to allow the last will and testament of the late
Adriana Maloto. This is untenable.
The doctrine of res adjudicata finds no application in the
present controversy. For a judgment to be a bar to a
subsequent case, the following requisites must concur:
(1) the presence of a final former judgment; (2) the
former judgment was rendered by a court having
jurisdiction over the subject matter and the parties; (3)
the former judgment is a judgment on the merits; and (4)
there is, between the first and the second action, Identity
of parties, of subject matter, and of cause of action. 5 We
do not find here the presence of all the enumerated
requisites.
For one, there is yet, strictly speaking, no final judgment
rendered insofar as the probate of Adriana Maloto's will
is concerned. The decision of the trial court in Special
Proceeding No. 1736, although final, involved only the
intestate settlement of the estate of Adriana. As such,
that judgment could not in any manner be construed to
be final with respect to the probate of the subsequently
discovered will of the decedent. Neither is it a judgment

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on the merits of the action for probate. This is

understandably so because the trial court, in the
intestate proceeding, was without jurisdiction to rule on
the probate of the contested will . 6 After all, an action for
probate, as it implies, is founded on the presence of a
will and with the objective of proving its due execution
and validity, something which can not be properly done
in an intestate settlement of estate proceeding which is
predicated on the assumption that the decedent left no
will. Thus, there is likewise no Identity between the
cause of action in intestate proceeding and that in an
action for probate. Be that as it may, it would be
remembered that it was precisely because of our ruling
in G.R. No. L-30479 that the petitioners instituted this
separate action for the probate of the late Adriana
Maloto's will. Hence, on these grounds alone, the
position of the private respondents on this score can not
be sustained.
One last note. The private respondents point out that
revocation could be inferred from the fact that "(a) major
and substantial bulk of the properties mentioned in the
will had been disposed of: while an insignificant portion
of the properties remained at the time of death (of the
testatrix); and, furthermore, more valuable properties
have been acquired after the execution of the will on
January 3,1940." 7 Suffice it to state here that as these
additional matters raised by the private respondents are
extraneous to this special proceeding, they could only be
appropriately taken up after the will has been duly
probated and a certificate of its allowance issued.
WHEREFORE, judgment is hereby rendered
REVERSING and SETTING ASIDE the Decision dated
June 7, 1985 and the Resolution dated October 22,
1986, of the respondent Court of Appeals, and a new
one ENTERED for the allowance of Adriana Maloto's last
will and testament. Costs against the private
respondents.
This Decision is IMMEDIATELY EXECUTORY.
SO ORDERED.
ART. 832
.R. No. L-2538

September 21, 1951

Testate Estate of the Deceased MARIANO MOLO Y

LEGASPI. JUANA JUAN VDA. DE MOLO, petitionerappellee,
vs.LUZ, GLICERIA and CORNELIO MOLO, oppositorsappellants.
This is an appeal from an order of the Court of First
Instance of Rizal admitting to probate the last will and
testament of the deceased Mariano Molo y Legaspi
executed on August 17, 1918. The oppositors-appellants
brought the case on appeal to this Court for the reason
that the value of the properties involved exceeds
P50,000.
Mariano Molo y Legaspi died on January 24, 1941, in the
municipality of Pasay, province of Rizal, without leaving
any forced heir either in the descending or ascending
line. He was survived, however, by his wife, the herein

petitioner Juana Juan Vda. de Molo, and by his nieces

and nephew, the oppositors-appellants, Luz Gliceria and
Cornelio, all surnamed Molo, who were the legitimate
children of Candido Molo y Legaspi, deceased brother of
the testator. Mariano Molo y Legaspi left two wills, one
executed on August 17, 1918, (Exhibit A) and another
executed on June 20, 1939. (Exhibit I). The later will
executed in 1918.
On February 7, 1941, Juana Juan Vda. de Molo, filed in
the Court of First Instance of Rizal a petition, which was
docketed as special proceeding No. 8022 seeking the
probate of the will executed by the deceased on June
20, 1939. There being no opposition, the will was
probated. However, upon petition filed by the herein
oppositors, the order of the court admitting the will to
probate was set aside and the case was reopened. After
hearing, at which both parties presented their evidence,
the court rendered decision denying the probate of said
will on the ground that the petitioner failed to prove that
the same was executed in accordance with law.
In view of the disallowance of the will executed on June
20, 1939, the widow on February 24, 1944, filed another
petition for the probate of the will executed by the
deceased on August 17, 1918, which was docketed as
special proceeding No. 56, in the same court. Again, the
same oppositors filed an opposition to the petition based
on three grounds: (1) that petitioner is now estopped
from seeking the probate of the will of 1918; (2) that said
will has not been executed in the manner required by
law and (3) that the will has been subsequently revoked.
But before the second petition could be heard, the battle
for liberation came and the records of the case were
destroyed. Consequently, a petition for reconstitution
was filed, but the same was found to be impossible
because neither petitioner nor oppositors could produce
the copies required for its reconstitution. As a result,
petitioner filed a new petition on September 14, 1946,
similar to the one destroyed, to which the oppositors filed
an opposition based on the same grounds as those
contained in their former opposition. Then, the case was
set for trial, and on May 28, 1948, the court issued an
order admitting the will to probate already stated in the
early part of this decision. From this order the oppositors
appealed assigning six errors, to wit.
I. The probate court erred in not holding that the
present petitioner voluntarily and deliberately
frustrated the probate of the will dated June 20,
1939, in special proceeding No. 8022, in order to
enable her to obtain the probate of another
alleged will of Molo dated 191.
II. The court a quo erred in not holding that the
petitioner is now estopped from seeking the
probate of Molo's alleged will of 1918.
III. The lower court erred in not holding that
petitioner herein has come to court with "unclean
hands" and as such is not entitled to relief.
IV. The probate court erred in not holding that
Molo's alleged will of August 17, 1918 was not
executed in the manner required by law.

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V. The probate court erred in not holding that the

alleged will of 1918 was deliberately revoked by
Molo himself.
VI. The lower court erred in not holding that
Molo's will of 1918 was subsequently revoked by
the decedent's will of 1939.
In their first assignment of error, counsel for oppositors
contend that the probate court erred in not holding that
the petitioner voluntarily and deliberately frustrated the
probate of the will dated June 20, 1939, in order to
enable her to obtain the probate of the will executed by
the deceased on August 17, 1918, pointing out certain
facts and circumstances with their opinion indicate that
petitioner connived with the witness Canuto Perez in an
effort to defeat and frustrate the probate of the 1939 will
because of her knowledge that said will intrinsically
defective in that "the one and only testamentory
disposition thereof was a "disposicion captatoria". These
circumstances, counsel for the appellants contend,
constitute a series of steps deliberately taken by
petitioner with a view to insuring the realization of her
plan of securing the probate of the 1918 will which she
believed would better safeguard her right to inherit from
the decease.
These imputations of fraud and bad faith allegedly
committed in connection with special proceedings No.
8022, now closed and terminated, are vigorously met by
counsel for petitioner who contends that to raise them in
these proceedings which are entirely new and distinct
and completely independent from the other is improper
and unfair as they find no support whatsoever in any
evidence submitted by the parties in this case. They are
merely based on the presumptions and conjectures not
supported by any proof. For this reason, counsel,
contends, the lower court was justified in disregarding
them and in passing them sub silentio in its decision.
A careful examination of the evidence available in this
case seems to justify this contention. There is indeed no
evidence which may justify the insinuation that petitioner
had deliberately intended to frustrate the probate of the
1939 will of the deceased to enable her to seek the
probate of another will other than a mere conjecture
drawn from the apparently unexpected testimony of
Canuto Perez that he went out of the room to answer an
urgent call of nature when Artemio Reyes was signing
the will and the failure of petitioner later to impeach the
character of said witness in spite of the opportunity given
her by the court to do so. Apart from this insufficiency of
evidence, the record discloses that this failure has been
explained by petitioner when she informed the court that
she was unable to impeach the character of her witness
Canuto Perez because of her inability to find witnesses
who may impeach him, and this explanation stands
uncontradicted. Whether this explanation is satisfactory
or not, it is not now, for us to determine. It is an incident
that comes within the province of the former case. The
failure of petitioner to present the testimony of Artemio
Reyes at the hearing has also been explained, and it
appears that petitioner has filed because his
whereabouts could not be found. Whether this is true or

not is also for this Court to determine. It is likewise within

the province and function of the court in the former case.
And the unfairness of this imputation becomes more
glaring when we stock of the developments that had
taken place in these proceedings which show in bold
relief the true nature of the conduct, behavior and
character of the petitioner so bitterly assailed and held in
disrepute by the oppositors.
It should be recalled that the first petition for the probate
of the will executed on June 20, 1939, was filed on
February 7, 1941, by the petitioner. There being no
opposition, the will was probated. Subsequently,
however, upon petition of the herein oppositors, the
order of the court admitting said will to probate was set
aside, over the vigorous opposition of the herein
petitioner, and the case was reopened. The reopening
was ordered because of the strong opposition of the
oppositors who contended that he will had not been
executed as required by law. After the evidence of both
parties had been presented, the oppositors filed an
extensive memorandum wherein they reiterated their
view that the will should be denied probate. And on the
strenght of this opposition, the court disallowed the will.
If petitioner then knew that the 1939 will was inherently
defective and would make the testamentary disposition
in her favor invalid and ineffective, because it is a
"disposicion captatoria", which knowledge she may
easily acquire through consultation with a lawyer, there
was no need her to go through the order of filing the
petition for the probate of the will. She could accomplish
her desire by merely suppressing the will or tearing or
destroying it, and then take steps leading to the probate
of the will executed in 1918. But for her conscience was
clear and bade her to take the only proper step possible
under the circumstances, which is to institute the
necessary proceedings for the probate of the 1939 will.
This she did and the will was admitted to probate. But
then the unexpected happened. Over her vigorous
opposition, the herein appellants filed a petition for
reopening, and over her vigorous objection, the same
was granted and the case was reopened. Her motion for
reconsideration was denied. Is it her fault that the case
was reopened? Is it her fault that the order admitting the
will to probate was set aside? That was a contingency
which petitioner never expected. Had appellants not filed
their opposition to the probate of the will and had they
limited their objection to the intrinsic validity of said will,
their plan to defeat the will and secure the intestacy of
the deceased would have perhaps been accomplished.
But they failed in their strategy. If said will was denied
probate it is due to their own effort. It is now unfair to
impute bad faith petitioner simply because she exerted
every effort to protect her own interest and prevent the
intestacy of the deceased to happen.
Having reached the foregoing conclusions, it is obvious
that the court did not commit the second and third errors
imputed to it by the counsel for appellants. Indeed,
petitioner cannot be considered guilty or estoppel which
would prevent her from seeking the probate of the 1918
will simply because of her effort to obtain the allowance

!80

of the 1939 will has failed considering that in both the

1918 and 1939 wills she was in by her husband as his
universal heir. Nor can she be charged with bad faith far
having done so because of her desire to prevent the
intestacy of her husband. She cannot be blamed being
zealous in protecting her interest.
The next contention of appellants refers to the
revocatory clause contained in 1939 will of the deceased
which was denied probate. They contend that,
notwithstanding the disallowance of said will, the
revocatory clause is valid and still has the effect of
nullifying the prior of 1918.
Counsel for petitioner meets this argument by invoking
the doctrine laid down in the case of Samson vs. Naval,
(41 Phil., 838). He contends that the facts involved in
that case are on all fours with the facts of this case.
Hence, the doctrine is that case is here controlling.
There is merit in this contention. We have carefully read
the facts involved in the Samson case we are indeed
impressed by their striking similarity with the facts of this
case. We do not need to recite here what those facts
are; it is enough to point out that they contain many
points and circumstances in common. No reason,
therefore, is seen by the doctrine laid down in that case
(which we quote hereunder) should not apply and control
the present case.
A subsequent will, containing a clause revoking
a previous will, having been disallowed, for the
reason that it was not executed in conformity
with the provisions of section 618 of the Code of
Civil Procedure as to the making of wills, cannot
produce the effect of annulling the previous will,
inasmuch as said revocatory clause is void. (41
Phil., 838.)
Apropos of this question, counsel for oppositors make
the remark that, while they do not disagree with the
soundness of the ruling laid down in the Samson case,
there is reason to abandon said ruling because it is
archaic or antiquated and runs counter to the modern
trend prevailing in American jurisprudence. They
maintain that said ruling is no longer controlling but
merely represents the point of view of the minority and
should, therefore, be abandoned, more so if we consider
the fact that section 623 of our Code of Civil Procedure,
which governs the revocation of wills, is of American
origin and as such should follow the prevailing trend of
the majority view in the United States. A long line of
authorities is cited in support of this contention. And
these authorities hold the view, that "an express
revocation is immediately effective upon the execution of
the subsequent will, and does not require that it first
undergo the formality of a probate proceeding". (p. 63,
appellants' brief .
While they are many cases which uphold the view
entertained by counsel for oppositors, and that view
appears to be in controlling the states where the
decisions had been promulgated, however, we are
reluctant to fall in line with the assertion that is now the
prevailing view in the United States. In the search we

have made of American authorities on the subject, we

found ourselves in a pool of conflicting opinions perhaps
because of the peculiar provisions contained in the
statutes adopted by each State in the subject of
revocation of wills. But the impression we gathered from
a review and the study of the pertinent authorities is that
the doctrine laid down in the Samson case is still a good
law. On page 328 of the American Jurisprudence Vol. 57,
which is a revision Published in 1948, we found the
following passages which in our opinion truly reflect the
present trend of American jurisprudence on this matter
affecting the revocation of wills:
SEC. 471. Observance of Formalities in
Execution of Instrument. Ordinarily, statutes
which permit the revocation of a will by another
writing provide that to be effective as a
revocation, the writing must be executed with
the same formalities which are required to be
observed in the execution of a will. Accordingly,
where, under the statutes, attestation is
necessary to the making of a valid will, an
unattested non testamentary writing is not
effective to revoke a prior will. It has been held
that a writing fails as a revoking instrument
where it is not executed with the formalities
requisite for the execution of a will, even though
it is inscribed on the will itself, although it may
effect a revocation by cancellation or obliteration
of the words of the will. A testator cannot reserve
to himself the power to modify a will by a written
instrument subsequently prepared but not
executed in the manner required for a will.
SEC, 472. Subsequent Unexecuted, Invalid, or
Ineffective Will or Codicil. A will which is
invalid because of the incapacity of the testator,
or of undue influence can have no effect
whatever as a revoking will. Moreover, a will is
not revoked by the unexecuted draft of a later
one. Nor is a will revoked by a defectively
executed will or codicil, even though the latter
contains a clause expressly revoking the former
will, in a jurisdiction where it is provided by a
controlling statute that no writing other than a
testamentary instrument is sufficient to revoke a
will, for the simple reason that there is no
revoking will. Similarly where the statute
provides that a will may be revoked by a
subsequent will or other writing executed with
the same formalities as are required in the
execution of wills, a defectively executed will
does not revoke a prior will, since it cannot be
said that there is a writing which complies with
the statute. Moreover, a will or codicil which, on
account of the manner in which it is executed, is
sufficient to pass only personally does not affect
dispositions of real estate made by a former will,
even though it may expressly purport to do so.
The intent of the testator to revoke is immaterial,
if he has not complied with the statute. (57 Am.
Jur., 328, 329.)

!81

We find the same opinion in the American Law Reports,

Annotated, edited in 1939. On page 1400, Volume 123,
there appear many authorities on the "application of
rules where second will is invalid", among which a typical
one is the following:
It is universally agreed that where the second
will is invalid on account of not being executed in
accordance with the provisions of the statute, or
where the testator who has not sufficient mental
capacity to make a will or the will is procured
through undue influence, or the such, in other
words, where the second will is really no will, it
does not revoke the first will or affect it in any
manner. Mort vs. Baker University (193-5) 229
Mo. App., 632, 78 S.W. (2d), 498.
These treaties cannot be mistaken. They uphold the
view on which the ruling in the Samson case is
predicated. They reflect the opinion that this ruling is
sound and good and for this reason, we see no
justification for abondoning it as now suggested by
counsel for the oppositors.
It is true that our law on the matter (sec. 623, Code Civil
Procedure) provides that a will may be some will, codicil,
or other writing executed as proved in case of wills" but it
cannot be said that the 1939 will should be regarded, not
as a will within the meaning of said word, but as "other
writing executed as provided in the case of wills", simply
because it was denied probate. And even if it be
regarded as any other writing within the meaning of said
clause, there is authority for holding that unless said
writing is admitted to probate, it cannot have the effect of
revocation. (See 57 Am. Jur. pp. 329-330).
But counsel for oppositors contemned that, regardless of
said revocatory clause, said will of 1918 cannot still be
given effect because of the presumption that it was
deliberately revoked by the testator himself. The
oppositors contend that the testator, after executing the
1939 will, and with full knowledge of the recovatory
clause contained said will, himself deliberately destroyed
the original of the 1918 will, and for that reason the will
submitted by petitioner for probate in these proceedings
is only a duplicate of said original.
There is no evidence which may directly indicate that the
testator deliberately destroyed the original of the 1918
will because of his knowledge of the revocatory clause
contained in the will he executed in 1939. The only
evidence we have is that when the first will was
executed in 1918, Juan Salcedo, who prepared it, gave
the original and copies to the testator himself and
apparently they remained in his possession until he
executed his second will in 1939. And when the 1939 will
was denied probate on November 29, 1943, and
petitioner was asked by her attorney to look for another
will, she found the duplicate copy (Exhibit A) among the
papers or files of the testator. She did not find the
original.
If it can be inferred that the testator deliberately
destroyed the 1918 will because of his knowledge of the
revocatory clause of the 1939 will, and it is true that he

gave a duplicate copy thereof to his wife, the herein

petitioner, the most logical step for the testator to take is
to recall said duplicate copy in order that it may likewise
be destroyed. But this was not done as shown by the
fact that said duplicate copy remained in the possession
of petitioner. It is possible that because of the long lapse
of twenty-one (21) years since the first will was
executed, the original of the will had been misplaced or
lost, and forgetting that there was a copy, the testator
deemed it wise to execute another will containing exactly
the same testamentary dispositions. Whatever may be
the conclusion we may draw from this chain of
circumstances, the stubborn fact is that there is no direct
evidence of voluntary or deliberate destruction of the first
will by the testator. This matter cannot be inference or
conjectur.
Granting for the sake of argument that the earlier will
was voluntarily destroyed by the testator after the
execution of the second will, which revoked the first,
could there be any doubt, under this theory, that said
earlier will was destroyed by the testator in the honest
belief that it was no longer necessary because he had
expressly revoked it in his will of 1939? In other words,
can we not say that the destruction of the earlier will was
but the necessary consequence of the testator's belief
that the revocatory clause contained in the subsequent
will was valid and the latter would be given effect? If
such is the case, then it is our opinion that the earlier will
can still be admitted to probate under the principle of
"dependent relative revocation".
This doctrine is known as that of dependent
relative revocation, and is usually applied where
the testator cancels or destroys a will or
executes an instrument intended to revoke a will
with a present intention to make a new
testamentary disposition as a substitute for the
old, and the new disposition is not made or, if
made, fails of effect for same reason. The
doctrine is n limited to the existence of some
other document, however, and has been applied
where a will was destroyed as a consequence of
a mistake of law. . . . (68 C.J.P. 799).
The rule is established that where the act of
destruction is connected with the making of
another will so as fairly to raise the inference
that the testator meant the revocation of the old
to depend upon the efficacy of a new disposition
intended to be substituted, the revocation will be
conditional and dependent upon the efficacy of
the new disposition; and if, for any reason, the
new will intended to be made as a substitute is
inoperative, the revocation fails and the original
will remains in full force. (Gardner, pp. 232, 233.)
This is the doctrine of dependent relative
revocation. The failure of a new testamentary
disposition upon whose validity the revocation
depends, is equivalent to the non-fulfillment of a
suspensive conditions, and hence prevents the
revocation of the original will. But a mere intent
to make at some time a will in the place of that

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destroyed will not render the destruction

conditional. It must appear that the revocation is
dependent upon the valid execution of a new
will. (1 Alexander, p. 751; Gardner, p. 253.)
We hold therefore, that even in the supposition that the
destruction of the original will by the testator could be
presumed from the failure of the petitioner to produce it
in court, such destruction cannot have the effect of
defeating the prior will of 1918 because of the fact that it
is founded on the mistaken belief that the will of 1939
has been validly executed and would be given due
effect. The theory on which this principle is predicated is
that the testator did not intend to die intestate. And this
intention is clearly manifest when he executed two wills
on two different occasion and instituted his wife as his
universal heir. There can therefore be no mistake as to
his intention of dying testate.
The remaining question to be determined refers to the
sufficiency of the evidence to prove the due execution of
the will.
The will in question was attested, as required by law, by
three witnesses, Lorenzo Morales, Rufino Enriquez, and
Angel Cuenca. The first two witnesses died before the
commencement of the present proceedings. So the only
instrumental witness available was Angel Cuenca and
under our law and precedents, his testimony is sufficient
to prove the due execution of the will. However,
petitioner presented not only the testimony of Cuenca
but placed on the witness stand Juan Salcedo, the
notary public who prepared and notarized the will upon
the express desire and instruction of the testator, The
testimony of these witnesses shows that the will had
been executed in the manner required by law. We have
read their testimony and we were impressed by their
readiness and sincerity. We are convinced that they told
the truth.
Wherefore, the order appealed from is hereby affirmed,
with costs against the appellants.1
G.R. No. L-11823

February 11, 1918

CRISTINA SAMSON, DELFINA NAVAL, and SOR

CONSOLACION EUGENIO, petitioners-appellants,
vs. MONICA NAVAL, ROSA NAVAL, and CELESTINA
NAVAL, objectors-appellants.
On September 20, 1915, attorney Perfecto Gabriel
presented in the Court of First Instance of the city of
Manila for allowance as the will of Simeona F. Naval,
who died in said city two days previously, a document
executed by her of February 13, 1915, and in which he
was appointed executor. The case was recorded as No.
13386 and, after hearing the petition for allowance filed
by said executor, it was denied on the ground that said
document was not duly executed by the deceased as
her last will and testament, inasmuch as she did not sign
it in the presence of three witness and the two witnesses
did not sign it in the presence of each other. Thereafter
the nieces and legatees of the same deceased filed in
the same court for allowance as her will, another
document executed by her on October 31, 1914, and,

consequently, the case was registered under another

number, which was No. 13579. The petition for
allowance was opposed by Monica Naval, Rosa Naval,
and Cristina Naval on the ground that the will, the
allowance of which is asked, could not be allowed,
because of the existence of another will of subsequent
date, executed during her lifetime by the same Simeona
F. Naval, and because said will has been revoked by
another executed subsequently by her during her
lifetime, and further, because sail will has not been
executed with the formalities required by existing laws.
Trial having taken place, at which evidence was
adduced, the court on February 8, 1916, issued an
order, admitting said second document and ordering its
allowance as the last will and testament o said
deceased. From said order the opponents appealed to
this court and transmitted to us the corresponding
declarations. Tow of the opponents, that is, Rosa and
Cristina Naval, assigned, as errors committed by the
court, the following:
1. The finding of the court that the will of October 31,
1914, has not been revoked by that of February 13,
1915;
2. The act of the court in permitting the petitioner to
institute and proceed with the proceedings relative to the
last case for the allowance of the will, No. 13579,
notwithstanding that proceedings had already been had
in the other case No. 13386 and final judgment rendered
therein; and
3. The act of the court in denying the motion for
continuance of the trial on the allowance of the will of
October 31, 1914, which motion was presented for the
sole purpose of introducing evidence to show the falsity
of the signature appearing in said will and submitting
said signature to the Bureau of Science for analysis.
The other opponent, Monica Naval, assigned, besides
the first two errors already mentioned, the finding of the
court that the disallowance of the will of said deceased,
dated February 13, 1915, on the ground that is was not
executed in such form that it could transmit real and
personal property, according to section 618 of the Code
of Civil Procedure, also had the effect of annulling the
revocatory clause in said will.
From the evidence it appears, as we have already
stated, that the trial court declared that the first
document presented by the executor of the deceased,
Simeona F. Naval, as a will executed by her on February
13, 1915, and which was the subject-matter of case No.
13386 of said court, could not be allowed, on the ground
that it was not executed with the requisites and
formalities prescribed by law. Article 739 of the Civil
Code provides that a former will is by operation of law
revoked by another valid subsequent will, if the testator
does not state in the later will his desire that the former
should subsist wholly or partly. In harmony with this
provision of substantive law, we find section 623 of the
Code of Civil Procedure, which provides that no will shall
be revoked, except by implication of law, otherwise than

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by some will, codicil, or other writing executed as

provided in case of wills.
Therefore, according to the legal provisions, in order that
the will of February 13, 1915, that is, the first document
presented as the will of the deceased Simeona F. Naval,
could have the effect of revoking that which was
presented afterwards by the petitioners as executed by
the same deceased on October 31, 1914, that is, on a
date previous to the execution of the first, it was
necessary and indispensable that the later will, that is,
that first presented for allowance, should be perfect or
valid, that it, executed as provided by lay in case of wills.
It also appears from the record that the opponents
themselves maintained that said later will, that is, that of
February 13, 1915, was not perfect, or executed as
provided by law in case of wills, and the Court of First
Instance of Manila has so held in disallowing said
documents as the will of the deceased. So that it very
evident that the second will presented, that is, that of
October 31, 1914, was not and could not have been
revoked by the first, and the court was not in error in so
holding in the order appealed from. We deem it
unnecessary to add a single word mere or cite wellknown doctrines and opinions of jurists in support of
what has already been stated.
As to the second error assigned by the opponents, we
believe it sufficient to refer to what the court below stated
in the judgment appealed from. It is as follows:
The court finds no incongruency in the
presentation of a prior will when another will of
subsequent date has been disallowed.
Disregarding the fact that the petitioners in this
case were not those who presented the will in
No. 13386, in which the petition was presented
by the same D. Perfecto Gabriel as executor, it
is proper to take into account that the object of a
petition for allowance is to ask for an order
declaring that a will has been executed in
accordance with the requisites and formalities
required by law. This is a question for the court
to decide and is out of the control of the party
who presents the will. The allowance or
disallowance of a will by a competent court
depends upon whether the evidence adduced at
the trial shows or does not show that the
formalities required by law have been complied
with, and this cannot be determined in advance,
as a general rule, by the person who presents
the testament. for he has not always concurred
in or seen the execution of the will.
If, therefore, the personal who presents a will
and asks that if be allowed does not secure its
allowance, and he has in his possession another
will, or has information that another exists, he
does not contradict himself by asking for the
allowance of the will of earlier date merely
because the later will was declared invalid by
the proper court. If in this case there is any who
adopts a contradictory position, it is the

respondent himself, inasmuch as in case No.

13386 he alleged, as a ground for the
disallowance of the will then presented, that it
was not executed in accordance with the law,
and now he maintains the contrary, for he claims
that said will revoked that which is now
presented.
With respect to the third error, it is beyond doubt that the
court did not commit it, for it appears that when the
examination of the witness, Cristina Samson, was
finished and the court told Attorney Lualhati, counsel for
the respondents, to continue adducing his evidence, he
said he had no more proof, although he added that he
would ask the court to grant him permission to send the
will of 1914 to the Bureau of Science, which petition was
objected to by the attorney for the proponents and
denied by the court. Immediately thereafter the attorney
for the opponents asked for the continuance of the trial,
which was also denied by the court, after objection was
made by the proponents. The attorney for the opponents
excepted to said ruling.
Therefore, the petition of said attorney for the remission
of said will to the Bureau of Science, in the terms in
which it was made to the court, after ha had stated that
he had no more evidence to present, signified that he left
it to the discretion of the court to grant it or not.
Furthermore, no exception was taken to the order to the
order denying this motion, and although the attorney for
the opponents excepted to the order denying the motion
for continuance of the trial, such exception was
completely useless and ineffective for the purpose of
alleging before this court that the trial court erred in that
respect, for said resolution, being one of those left to the
discretion of the court in the exercise of it functions,
according to section 141 of the Code of Civil Procedure,
it could not be the subject of an exception, unless the
court, in denying said motion, abused its discretional
power and thereby prejudiced the essential rights of the
respondents, which is not the case here.
The error which, in addition to the first two already
mentioned, has been assigned by the opponent and
appellant, Monica Naval, and refers, according to her, to
the court's action in declaring that the disallowance of
the will of the deceased Simeona F. Naval, dated
February 13, 1915, for the reason that it was not
executed in such manner and from that it could transmit
real and personal property, according to the provisions of
section 618 of the Code of Civil Procedure, also had the
effect of annulling the revocatory clause of said will.
First of all, it is not true that the court made such
statement in the terms given in said assignment of error,
that is, it is not true that the court declared that, because
said will was not executed in the form required by law in
order that it may transmit real and personal property,
according to the provisions of section 618, the
disallowance of said will also had the effect of annulling
the revocatory clause therein contained. In the order
appealed from there is no declaration or conclusion
made in these terms. The court did not say that the
annulment of the revocatory clause in said will was the

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effect or consequence of the fact that it was not allowed

on the ground that it was not executed in the form
required by law in order that it may transmit real and
personal property. Referring to the construction, given by
the respondent to sections 618 and 623 of the Code of
Civil Procedure, to the effect that a subsequent will may
revoke a previous will, although the later will has not
been allowed by the competent court, it being sufficient
that the intention of the testator to revoke the previous
will should be clearly expressed, and that, while the
requisite of allowance is necessary in order that it may
transmit property from one person to another, it is not
necessary in order that it might procedure other effects,
for example, the effect of a revocatory clause, or a
clause of aknowledgment of a child, what the court
declared, we repeat, was that although the revocation of
a will should have been effected, not by means of
another will or codicil, but by mans of a document, as
authorized by said section 623, which document should
have the requisites and conditions fixed in section 618,
the presentation of the document to the court was
necessary in order that the latter might allow it, by
declaring that it was executed with the formalities
required by law for the execution of a will, and finally
concluding that, just as to, is to be proved that the
requisites of section 618 have been complied with in
order that a will may be of value through its allowance,
so without such allowance the revocatory clause like the
other provisions of the will, has no value or effect except
to show extraneous matters, as, for example, the
acknowledgment of natural children, of some debt or
obligation. In such case, the document could produce
effect, but not as will, but simply as a written admission
made by the person executing it. And It is beyond doubt
that the revocatory clause contained in a document, like
the present, which contains provisions proper of a will,
as those relating to legacies and distribution of the
properties of the testator after his death as well as the
appointment of executors, is not matter extraneous to
the will, but merely a part thereof, intimately connected
with it as well as with the will or wills, the revocation of
which is declared in said clause; in short, the desire of
the testator declared in the revocatory clause is related
to the desire of the same testator expressed in the
provisions of the testament in which said clause is found
and to that which he might have expressed in the
testaments which he may have previously executed.
There is such relation between the revocatory clause
and the will which contains it, that if the will does not
produce legal effects, because it has not been executed
in accordance with the provisions of the law, neither
would the revocatory clause therein produce legal
effects. And if, in the present case, the so-called will of
the deceased, Simeona F. Naval, dated February 13,
1915, was not duly executed by her as her last will and
testament, ad declared by the court in its decision of
November 19, 1915, in case No. 13386, for which
reason its allowance was denied, neither may it be
maintained that the revocatory clause contained in said
will is the expression of the last will of said deceased.
The disallowance of the ill, therefore, produced the effect
of annulling the revocatory clause, not exactly because

said will was not executed in such from that it could

transmit real and personal property, as inaccurately
alleged by the appellant, Monica Naval, to be the court's
finding, upon which said assignment of error is based,
but because it was proved that said will was not
executed or signed with the formalities and requisites
required by section 618 of the Code of Civil Procedure, a
cause which also produces the nullity of the same will,
according to section 634 of said law; and of course what
is invalid in law can produce no effect whatever.
If the instrument propounded as a revocation be
in form a will, it must be perfect as such, and be
subscribed and attested as is required by the
statute. An instrument intended to be a will, but
filing of its effect as such on account of some
imperfection in its structure or for want of due
execution, cannot be set up for the purpose of
revoking a former will. (40 Cyc., p. 1177, and
cases cited therein.)
A subsequent will containing a clause revoking
an earlier will must, as a general rule, be
admitted to probate before the clause of
revocation can have any effect, and the same
kind, quality, and method of proof is required for
the establishment of the subsequent will as was
required for the establishment of the former will.
(40 Cyc., p. 1178, and cases cited therein.)
But admitting that the will said to have been executed by
the deceased Simeona F. Naval on February 13, 1915,
notwithstanding its inefficacy to transmit property for the
reason that it has not been executed, according to the
provisions of said section 618 of the Code of Civil
Procedure, should be considered as executed by her in
order to express her desire, appearing in one of its
clauses, to revoke and annul any previous will of hers,
as stated in clause 13, this being the argument adduced
by the appellant, Monica naval, in support of said
assignment of error neither could it be maintained
that, the allowance of said will having been denied by
the court on November 11, 1915, said revocatory clause
subsists and the intention expressed by the testratrix
therein is valid and legally effective, for the simple
reason that, in order that a will may be revoked by a
document, it is necessary, according to the conclusive
provisions of section 623 of said procedural law, that
such documents be executed according to the provisions
relating to will in section 618, and the will in question, or,
according to the respondent, the so-called document,
was not executed according to the provisions of said
section, according to the express finding of the trial court
in its order of November 11, 1915, acquiesced in by the
opponent herself, and which is now final and executory.
Therefore, the disallowance of said will and the
declaration that it was not executed according to the
provisions of law as to wills, produced the effect of
annulling said revocatory clause.
In support of the argument advanced in her brief said
appellant, Monica Naval, cites the declaration made by
the Supreme Court of Massachusetts in Wallis vs. Wallis

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(114 Mass., 510, 512)m which, according to the

appellant herself, was in the following terms:
If it be shown that a later will was duly executed
and attested, containing a clause expressly
revoking former will nothing else appearing as to
its contents, it is nevertheless good as a
revocation, but it can only be made available by
setting it up in opposition to the probate of the
earlier will.
In the decision of said case the finding referred to be by
the appellant appears not to have been made by the
Supreme Court of Massachusetts.
The syllabus of said decision says:
When a will revoking a former will is in
existence, it must be established in the Probate
Court; but when it has been lost or destroyed,
and its contents cannot be sufficiently proved to
admit it to probate, it may nevertheless be
availed of as a revocation in opposition to the
probate of the will revoked by it.:
And in the body of the decision there is a declaration, to
which the appellant must have desired to refer in her
brief, which declaration says:
If it can be proved that a later will was duly
executed, attested and subscribed, and that it
contained a clause expressly revoking all former
wills, but evidence of the rest of its contents
cannot be obtained, it is nevertheless a good
revocation; and it can be made available only by
allowing it to be set up in opposition to the
probate of the earlier will,. . .
The facts of the case in which this decision was
rendered are different from the facts of the case at bar.
That was a case concerning a will filed by one of the
children of the testatrix, Mary Wallis, as her last will, to
the allowance of which another son objected, alleging
that said will had been revoked by another executed by
the same deceased subsequent to the will that was filed,
and that it had been fraudulently destroyed or taken by
his brother, the proponent and his wife, or by one of
them, in order to deprive him of the rights conferred
upon him by said will. Therefore, the will said to have
been subsequently executed by the testatrix and in
which, according to the oppositor, the clause revocatory
of the former will appeared, was not presented by said
oppositor, while the previous will was, in the contrary,
filed for allowance by the son of the testratrix, who
appeared to be favored therein, said oppositor having
alleged that the subsequent will, that is, that containing
the revocatory clause, had been drawn, subscribed and
executed in accordance with the provisions of the law, a
fact which he was ready to prove just as he was ready to
prove that it had been destroyed or suppressed by the
proponent, his brother and his wife, or one of them. In
the case at bar, the subsequent will containing the
revocatory clause of the previous will executed by the
deceased Simeona F. Naval was presented to the court
for allowance and it was disallowed a fact which gave

opportunity to the legatees of said deceased to present a

previous will executed by her on October 31, 1914, and
said two wills having been successively presented,
evidence as to them was also successively adduced for
their allowance by the court.
Therefore, the declaration made by the Supreme Court
of Massachusetts in Wallis vs. Wallis (supra), to the
effect that a subsequent will containing a revocatory
clause of previous wills, constitutes a valid revocation
and may be used in objecting to the allowance of the
previous will, even when it is not possible to obtain proof
of the remainder of the contents of said subsequent will,
refers to the case in which the latter had been taken
away, destroyed or suppressed, and it was impossible to
present it for allowance, but requires for that purpose
that it be proved that said subsequent will has been
executed, attested, and subscribed in due form and that
it contained, furthermore, that revocatory clause. This is
what said declaration and, in relation thereto, also what
the syllabus of the decision thereof clearly says. The
court, through Chief Justice Gray, in giving its opinion,
thus began by saying:
By our law, no will can be revoked by any
subsequent instrument, other than a "will, codicil
or writing, signed, attested and subscribed in the
manner provided for making a will." And when
an instrument of revocation is in existence and
capable of being propounded for probate, its
validity should be tried by a direct proceeding
instituted for the purpose in the Probate Court.
(Loughton vs. Atkins, 1 Pick., 535.)
It results, therefore, that while perfect parity does not
exist between the case decided by the Supreme Court of
Massachusetts, to which the appellant Monica Naval
refers, and that which is not before us, it is wholly
unquestionable that, whether the case deals with a
subsequent will revocatory of a previous will, which may
possibly be presented to a probate court for allowance,
or of a subsequent will, also revocatory of a previous
will, which could not be presented for allowance,
because it has been taken or hidding, or mislaid in
order that such will may constitute a valid revocation and
be utilized in the second case, although the remaining
provisions may not be proven, in opposition to the
allowance of the previous will, it is necessary to prove
that it was executed, attested, and subscribed in due
form, and, of course, also that it contained a clause
expressly revoking the previous will, or, what is the same
thing, that said subsequent will has been executed
according to the provisions relating to wills, as
expressed in section 623 of the procedural law in force.
There can be no doubt whatever that this applies when
the revocation had been made to appear in a writing or
document susceptible of presentation for allowance, like
the so-called will of the deceased Simeona F. Naval,
dated February 13, 1915, and considered by said
respondent and appellant as a mere document of
revocation, for, as already seen in said decision invoked
by her, the requisite as to signing, attesting, and
subscribing in the form, required by law for the execution

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of wills in order that it may revoke a previous will, is also

required in a will as well as in a codicil, or in a writing,
and in referring to a document of revocation, it is also
expressed that its validity should be proved in a direct
proceeding, instituted for the purpose in a probate court.
In the case at bar, the document, executed by the
deceased, Simeona F. Naval, as her last will and
testament, dated February 13, 1915, has been
presented for allowance; it validity has been proved by
means of said procedure in the Court of Probate of
Manila, and that court denied its allowance, on the
ground that the document in question had not been duly
executed by the deceased, as her last will and
testament, because she did not sign in the presence of
three witnesses, and two of these witnesses did not sign
in the presence of each other, or what is the same thing,
that said document has not be attested and subscribed
in the manner established by law for the execution of
will, or, in other words, as provided by law in case of
wills, as stated by section 623 of said procedural law,
and this resolution was acquiesced in, as already stated,
by the respondents in this case, and is, therefore, final
and executory.
In conclusions, the doctrine laid down in the decision of
the Supreme Court of Massachusetts, invoked by the
appellant, Monica Naval, is in conformity with the
provision of said section 623 of our procedural law and
article 739 of the Civil Code, and the will executed by the
deceased Simeona F. Naval on October 31, 1914, not
having been revoked, according to these provisions, by
the will presented and alleged as executed by the same
deceased subsequently on February 13, 1915, the
allowance of which was denied by the Court of First
Instance of Manila, the court below was not in error in
ordering the allowance of said will, that is, of that of
October 31, 1914, as the last will and testament of said
deceased.
Wherefore, the order appealed from is affirmed, with the
costs of this instance against the appellants. So ordered.

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