JOINT WILLS
null and void, for being executed contrary to the prohibition of joint wills in the Civil
G.R. No. L-20234 December 23, 1964
PAULA DE LA CERNA, ET AL., petitioners, vs. MANUELA REBACA POTOT, ET AL.,
and CA
REYES, J.B.L., J.:
Appeal by Paula de la Cerna and others from a decision of the Court of Appeals,
Sixth Division (C.A.-G.R. No. 23763-R) reversing that of the Court of First Instance of
Cebu (Civ. Case No. R-3819) and ordering the dismissal of an action for partition.
The factual background appears in the following portion of the decision of the Court
of Appeals (Petition, Annex A, pp. 2-4):
It appears that on May 9, 1939, the spouses, Bernabe de la Serna and Gervasia
Rebaca, executed a joint last will and testament in the local dialect whereby they
willed that "our two parcels of land acquired during our marriage together with all
improvements thereon shall be given to Manuela Rebaca, our niece, whom we have
nurtured since childhood, because God did not give us any child in our union,
Manuela Rebaca being married to Nicolas Potot", and that "while each of the
testators is yet living, he or she will continue to enjoy the fruits of the two lands
aforementioned", the said two parcels of land being covered by Tax No. 4676 and
Tax No. 6677, both situated in sitio Bucao, barrio Lugo, municipality of Borbon,
province of Cebu. Bernabe dela Serna died on August 30, 1939, and the aforesaid
will was submitted to probate by said Gervasia and Manuela before the Court of
First Instance of Cebu which, after due publication as required by law and there
being no opposition, heard the evidence, and, by Order of October 31, 1939; in
Special Proceedings No. 499, "declara legalizado el documento Exhibit A como el
testamento y ultima voluntad del finado Bernabe de la Serna con derecho por parte
du su viuda superstite Gervasia Rebaca y otra testadora al propio tiempo segun el
Exhibit A de gozar de los frutos de los terranos descritos en dicho documents; y
habido consideracion de la cuantia de dichos bienes, se decreta la distribucion
sumaria de los mismos en favor de la logataria universal Manuela Rebaca de Potot
previa prestacion por parte de la misma de una fianza en la sum de P500.00 para
responder de cualesquiera reclamaciones que se presentare contra los bienes del
finado Bernabe de la Serna de los 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
Code (Art. 669, Civil Code of 1889 and Art. 818, Civil Code of the Philippines); but on
appeal by the testamentary heir, the Court of Appeals reversed, on the ground that
the decree of probate in 1939 was issued by a court of probate jurisdiction and
conclusive on the due execution of the testament. Further, the Court of Appeals
declared that:
... . It is true the law (Art. 669, old Civil Code; Art. 818, new Civil Code). prohibits the
making of a will jointly by two or more persons either for their reciprocal benefit or
for the benefit of a third person. However, this form of will has long been
sanctioned by use, and the same has continued to be used; and when, as in the
present case, one such joint last will and testament has been admitted to probate
by final order of a Court of competent jurisdiction, there seems to be no alternative
except to give effect to the provisions thereof that are not contrary to law, as was
done in the case of Macrohon vs. Saavedra, 51 Phil. 267, wherein our Supreme
Court gave effect to the provisions of the joint will therein mentioned, saying,
"assuming that the joint will in question is valid."
Whence this appeal by the heirs intestate of the deceased husband, Bernabe de la
Cerna.
The appealed decision correctly held that the final decree of probate, entered in
1939 by the Court of First Instance of Cebu (when the testator, Bernabe de la Cerna,
died), has conclusive effect as to his last will and testament despite the fact that
even then the Civil Code already decreed the invalidity of joint wills, whether in
favor of the joint testators, reciprocally, or in favor of a third party (Art. 669, old
Civil Code). The error thus committed by the probate court was an error of law, that
should have been corrected by appeal, but which did not affect the jurisdiction of
the probate court, nor the conclusive effect of its final decision, however
erroneous. A final judgment rendered on a petition for the probate of a will is
binding upon the whole world (Manalo vs. Paredes, 47 Phil. 938; In re Estates of
Johnson, 39 Phil. 156); and public policy and sound practice demand that at the risk
of occasional errors judgment of courts should become final at some definite date
fixed by law. Interest rei publicae ut finis set litium (Dy Cay vs. Crossfield, 38 Phil,
521, and other cases cited in 2 Moran, Comments on the Rules of Court (1963 Ed.,
p. 322).
Petitioners, as heirs and successors of the late Bernabe de la Cerna, are concluded
by the 1939 decree admitting his will to probate. The contention that being void the
will cannot be validated, overlooks that the ultimate decision on Whether an act is
valid or void rests with the courts, and here they have spoken with finality when the
will was probated in 1939. On this court, the dismissal of their action for partition
was correct.
But the Court of Appeals should have taken into account also, to avoid future
misunderstanding, that the probate decree in 1989 could only affect the share of
the deceased husband, Bernabe de la Cerna. It could not include the disposition of
the share of the wife, Gervasia Rebaca, who was then still alive, and over whose
interest in the conjugal properties the probate court acquired no jurisdiction,
precisely because her estate could not then be in issue. Be it remembered that prior
to the new Civil Code, a will could not be probated during the testator's lifetime.

It follows that the validity of the joint will, in so far as the estate of the wife was
concerned, must be, on her death, reexamined and adjudicated de novo, since a
joint will is considered a separate will of each testator. Thus regarded, the holding
of the court of First Instance of Cebu that the joint will is one prohibited by law was
correct as to the participation of the deceased Gervasia Rebaca in the properties in
question, for the reasons extensively discussed in our decision in Bilbao vs. Bilbao,
87 Phil. 144, that explained the previous holding in Macrohon vs. Saavedra, 51 Phil.
267.

Therefore, the undivided interest of Gervasia Rebaca should pass upon her death to
her heirs intestate, and not exclusively to the testamentary heir, unless some other
valid will in her favor is shown to exist, or unless she be the only heir intestate of
said Gervasia.

It is unnecessary to emphasize that the fact that joint wills should be in common
usage could not make them valid when our Civil Codes consistently invalidated
them, because laws are only repealed by other subsequent laws, and no usage to
the contrary may prevail against their observance (Art. 5, Civ. Code of 1889; Art. 7,
Civil Code of the Philippines of 1950).

WITH THE FOREGOING MODIFICATION, the judgment of the Court of Appeals in CA-
G.R. No. 23763-R is affirmed. No Costs.
G.R. No. 76714 June 2, 1994
SALUD TEODORO VDA. DE PEREZ, petitioner,
vs.
HON. ZOTICO A. TOLETE in his capacity as Presiding Judge, Branch 18, RTC,
Bulacan, respondent.
Natividad T. Perez for petitioner.
Benedicto T. Librojo for private respondents.
QUIASON, J.:
This is a petition for certiorari under Rule 65 of the Revised Rules of Court to set
aside the Order dated November 19, 1986 of the Regional Trial Court, Branch 18,
Bulacan presided by respondent Judge Zotico A. Tolete, in Special Proceedings No.
1793-M.
We grant the petition.
II
Dr. Jose F. Cunanan and his wife, Dr. Evelyn Perez-Cunanan, who became American
citizens, established a successful medical practice in New York, U.S.A. The Cunanans
lived at No. 2896 Citation Drive, Pompey, Syracuse, New York, with their children,
Jocelyn, 18; Jacqueline, 16; and Josephine, 14.
On August 23, 1979, Dr. Cunanan executed a last will and testament, bequeathing
to his wife "all the remainder" of his real and personal property at the time of his
death "wheresoever situated" (Rollo, p. 35). In the event he would survive his wife,
he bequeathed all his property to his children and grandchildren with Dr. Rafael G.
Cunanan, Jr. as trustee. He appointed his wife as executrix of his last will and
testament and Dr. Rafael G. Cunanan, Jr. as substitute executor. Article VIII of his
will states:
If my wife, EVELYN PEREZ-CUNANAN, and I shall die under such circumstances that
there is not sufficient evidence to determine the order of our deaths, then it shall
be presumed that I predeceased her, and my estate shall be administered and
distributed, in all respects, in accordance with such presumption (Rollo, p. 41).
Four days later, on August 27, Dr. Evelyn P. Cunanan executed her own last will and
testament containing the same provisions as that of the will of her husband. Article
VIII of her will states:
If my husband, JOSE F. CUNANAN, and I shall die under such circumstances that
there is not sufficient evidence to determine the order of our deaths, then it shall
be presumed that he predeceased me, and my estate shall be administered and
distributed in all respects, in accordance with such presumption. (Rollo, p. 31).
On January 9, 1982, Dr. Cunanan and his entire family perished when they were
trapped by fire that gutted their home. Thereafter, Dr. Rafael G. Cunanan, Jr. as
trustee and substitute executor of the two wills, filed separate proceedings for the
probate thereof with the Surrogate Court of the County of Onondaga, New York. On
April 7, these two wills were admitted to probate and letters testamentary were
issued in his favor.
On February 21, 1983, Salud Teodoro Perez, the mother of Dr. Evelyn P. Cunanan,
and petitioner herein, filed with the Regional P. Cunanan, and petitioner herein,
filed with the Regional Trial Court, Malolos, Bulacan a petition for the reprobate of
the two bills ancillary to the probate proceedings in New York. She also asked that
she be appointed the special administratrix of the estate of the deceased couple
consisting primarily of a farm land in San Miguel, Bulacan.
On March 9, the Regional Trial Court, Branch 16, Malolos, Bulacan, presided by
Judge Gualberto J. de la Llana, issued an order, directing the issuance of letters of
special administration in favor of petitioner upon her filing of a P10,000.00 bond.
The following day, petitioner posted the bond and took her oath as special
administration.
As her first act of administration, petitioner filed a motion, praying that the
Philippine Life Insurance Company be directed to deliver the proceeds in the
amount of P50,000.00 of the life insurance policy taken by Dr. Jose F. Cunanan with
Dr. Evelyn Perez-Cunanan and their daughter Jocelyn as beneficiaries. The trial
court granted the motion.
Counsel for the Philippine American Life Insurance Company then filed a
manifestation, stating that said company then filed a manifestation, stating that
said company had delivered to petitioner the amount of P49,765.85, representing
the proceeds of the life insurance policy of Dr. Jose F. Cunanan.
In a motion dated May 19, 1983, petitioner asked that Dr. Rafael Cunanan, Sr. be
ordered to deliver to her a Philippine Trust Company passbook with P25,594.00 in
savings deposit, and the Family Savings Bank time deposit certificates in the total
amount of P12,412.52.
On May 31, Atty. Federico Alday filed a notice of appearance as counsel for the
heirs of Dr. Jose F. Cunanan, namely, Dr. Rafael Cunanan, Sr., Priscilla Cunanan
Bautista, Lydia Cunanan Ignacio, Felipe F. Cunanan and Loreto Cunanan Concepcion
(Cunanan heirs). He also manifested that before receiving petitioner's motion of
May 19, 1983, his clients were unaware of the filing of the testate estate case and
therefore, "in the interest of simple fair play," they should be notified of the
proceedings (Records, p. 110). He prayed for deferment of the hearing on the
motions of May 19, 1983.
Petitioner then filed a counter manifestation dated June 13, 1983, asserting: (1)
that the "Cunanan collaterals are neither heirs nor creditors of the late Dr. Jose F.
Cunanan" and therefore, they had "no legal or proprietary interests to protect" and
"no right to intervene"; (2) that the wills of Dr. Jose F. Cunanan and Dr. Evelyn
Perez-Cunanan, being American citizens, were executed in accordance with the
solemnities and formalities of New York laws, and produced "effects in this
jurisdiction in accordance with Art. 16 in relation to Art. 816 of the Civil Code"; (3)
that under Article VIII of the two wills, it was presumed that the husband
predeceased the wife; and (4) that "the Cunanan collaterals are neither
distributees, legatees or beneficiaries, much less, heirs as heirship is only by
institution" under a will or by operation of the law of New York (Records, pp. 112-
113).
On June 23, the probate court granted petitioner's motion of May 19, 1983.
However, on July 21, the Cunanan heirs filed a motion to nullify the proceedings
and to set aside the appointment of, or to disqualify, petitioner as special
administratrix of the estates of Dr. Jose F. Cunanan and Dr. Evelyn Perez-Cunanan.
The motion stated: (1) that being the "brothers and sisters and the legal and
surviving heirs" of Dr. Jose F. Cunanan, they had been "deliberately excluded" in the
petition for the probate of the separate wills of the Cunanan spouses thereby
misleading the Bulacan court to believe that petitioner was the sole heir of the
spouses; that such "misrepresentation" deprived them of their right to "due process
in violation of Section 4, Rule 76 of the Revised Rules of Court; (2) that Dr. Rafael G.
Cunanan, Jr., the executor of the estate of the Cunanan spouses, was likewise not
notified of the hearings in the Bulacan court; (3) that the "misrepresentation and
concealment committed by" petitioner rendered her unfit to be a special
administratrix; (4) that Dr. Rafael G. Cunanan, Jr. had, by virtue of a verified power
of attorney, authorized his father,
Dr. Rafael Cunanan, Sr., to be his attorney-in-fact; and (5) that Dr. Rafael Cunanan,
Sr. is qualified to be a regular administrator "as practically all of the subject estate
in the Philippines belongs to their brother, Dr. Jose F. Cunanan" (Records, pp. 118-
122). Hence, they prayed: (1) that the proceedings in the case be declared null and
void; (2) that the appointment of petitioner as special administratrix be set aside;
and (3) that Dr. Rafael Cunanan, Sr. be appointed the regular administrator of the
estate of the deceased spouses.
Thereafter, the Cunanan heirs filed a motion requiring petitioner to submit an
inventory or accounting of all monies received by her in trust for the estate.
In her opposition, petitioner asserted: (1) that she was the "sole and only heir" of
her daughter, Dr. Evelyn Perez-Cunanan to the exclusion of the "Cunanan
collaterals"; hence they were complete strangers to the proceedings and were not
entitled to notice; (2) that she could not have "concealed" the name and address of
Dr. Rafael G. Cunanan, Jr. because his name was prominently mentioned not only in
the two wills but also in the decrees of the American surrogate court; (3) that the
rule applicable to the case is Rule 77, not Rule 76, because it involved the allowance
of wills proved outside of the Philippines and that nowhere in Section 2 of Rule 77 is
there a mention of notice being given to the executor who, by the same provision,
should himself file the necessary ancillary proceedings in this country; (4) that even
if the Bulacan estate came from the "capital" of Dr. Jose F. Cunanan, he had willed
all his worldly goods to his wife and nothing to his brothers and sisters; and (5) that
Dr. Rafael G. Cunanan, Jr. had unlawfully disbursed $215,000.00 to the Cunanan
heirs, misappropriated $15,000.00 for himself and irregularly assigned assets of the
estates to his American lawyer (Records, pp. 151-160).
In their reply, the Cunanan heirs stressed that on November 24, 1982, petitioner
and the Cunanan heirs had entered into an agreement in the United States "to
settle and divide equally the estates," and that under Section 2 of Rule 77 the
"court shall fix a time and place for the hearing and cause notice thereof to be given
as in case of an original will presented for allowance" (Records, pp. 184-185).
Petitioner asked that Dr. Rafael G. Cunanan, Jr. be cited for contempt of court for
failure to comply with the Order of June 23, 1983 and for appropriating money of
the estate for his own benefit. She also alleged that she had impugned the
agreement of November 24, 1982 before the Surrogate Court of Onondaga, New
York which rendered a decision on April 13, 1983, finding that "all assets are
payable to Dr. Evelyn P. Cunanans executor to be then distributed pursuant to
EPTL4-1.1 subd [a] par [4]" (Rollo, p. 52).
On their part, the Cunanan heirs replied that petitioner was estopped from claiming
that they were heirs by the agreement to divide equally the estates. They asserted
that by virtue of Section 2 of Rule 77 of the Rules of Court, the provisions of
Sections 3, 4 and 5 of Rule 76 on the requirement of notice to all heirs, executors,
devisees and legatees must be complied with. They reiterated their prayer: (1) that
the proceedings in the case be nullified; (2) that petitioner be disqualified as special
administratrix; (3) that she be ordered to submit an inventory of all goods, chattels
and monies which she had received and to surrender the same to the court; and (4)
that Dr. Rafael Cunanan, Sr. be appointed the regular administrator.
Petitioner filed a rejoinder, stating that in violation of the April 13, 1983 decision of
the American court Dr. Rafael G. Cunanan, Jr. made "unauthorized disbursements
from the estates as early as July 7, 1982" (Records, p. 231). Thereafter, petitioner
moved for the suspension of the proceedings as she had "to attend to the
settlement proceedings" of the estate of the Cunanan spouses in New York
(Records, p. 242). The Cunanans heirs opposed this motion and filed a
manifestation, stating that petitioner had received $215,000.00 "from the
Surrogates Court as part of legacy" based on the aforesaid agreement of November
24, 1982 (Records, p. 248).
On February 21, 1984, Judge de la Llana issued an order, disallowing the reprobate
of the two wills, recalling the appointment of petitioner as special administratrix,
requiring the submission of petitioner of an inventory of the property received by
her as special administratrix and declaring all pending incidents moot and academic.
Judge de la Llana reasoned out that petitioner failed to prove the law of New York
on procedure and allowance of wills and the court had no way of telling whether
the wills were executed in accordance with the law of New York. In the absence of
such evidence, the presumption is that the law of succession of the foreign country
is the same as the law of the Philippines. However, he noted, that there were only
two witnesses to the wills of the Cunanan spouses and the Philippine law requires
three witnesses and that the wills were not signed on each and every page, a
requirement of the Philippine law.
On August 27, 1985, petitioner filed a motion for reconsideration of the Order
dated February 21, 1984, where she had sufficiently proven the applicable laws of
New York governing the execution of last wills and testaments.
On the same day, Judge de la Llana issued another order, denying the motion of
petitioner for the suspension of the proceedings but gave her 15 days upon arrival
in the country within which to act on the other order issued that same day.
Contending that the second portion of the second order left its finality to the
discretion of counsel for petitioner, the Cunanans filed a motion for the
reconsideration of the objectionable portion of the said order so that it would
conform with the pertinent provisions of the Judiciary Reorganization Act of 1980
and the Interim Rules of Court.
On April 30, 1985, the respondent Judge of Branch 18 of the Regional Trial Court,
Malolos, to which the reprobate case was reassigned, issued an order stating that
"(W)hen the last will and testament . . . was denied probate," the case was
terminated and therefore all orders theretofore issued should be given finality. The
same Order amended the February 21, 1984 Order by requiring petitioner to turn
over to the estate the inventoried property. It considered the proceedings for all
intents and purposes, closed (Records,
p. 302).
On August 12, petitioner filed a motion to resume proceedings on account of the
final settlement and termination of the probate cases in New York. Three days later,
petitioner filed a motion praying for the reconsideration of the Order of April 30,
1985 on the strength of the February 21, 1984 Order granting her a period of 15
days upon arrival in the country within which to act on the denial of probate of the
wills of the Cunanan spouses. On August 19, respondent Judge granted the motion
and reconsidered the Order of April 30, 1985.
On August 29, counsel for petitioner, who happens to be her daughter, Natividad,
filed a motion praying that since petitioner was ailing in Fort Lee, New Jersey, U.S.A.
and therefore incapacitated to act as special administratrix, she (the counsel)
should be named substitute special administratrix. She also filed a motion for the
reconsideration of the Order of February 21, 1984, denying probate to the wills of
the Cunanan spouses, alleging that respondent Judge "failed to appreciate the
significant probative value of the exhibits . . . which all refer to the offer and
admission to probate of the last wills of the Cunanan spouses including all
procedures undertaken and decrees issued in connection with the said probate"
(Records, pp. 313-323).
Thereafter, the Cunanans heirs filed a motion for reconsideration of the Order of
August 19, 1985, alleging lack of notice to their counsel.
On March 31, 1986, respondent Judge to which the case was reassigned denied the
motion for reconsideration holding that the documents submitted by petitioner
proved "that the wills of the testator domiciled abroad were properly executed,
genuine and sufficient to possess real and personal property; that letters
testamentary were issued; and that proceedings were held on a foreign tribunal
and proofs taken by a competent judge who inquired into all the facts and
circumstances and being satisfied with his findings issued a decree admitting to
probate the wills in question." However, respondent Judge said that the documents
did not establish the law of New York on the procedure and allowance of wills
(Records, p. 381).
On April 9, 1986, petitioner filed a motion to allow her to present further evidence
on the foreign law. After the hearing of the motion on April 25, 1986, respondent
Judge issued an order wherein he conceded that insufficiency of evidence to prove
the foreign law was not a fatal defect and was curable by adducing additional
evidence. He granted petitioner 45 days to submit the evidence to that effect.
However, without waiting for petitioner to adduce the additional evidence,
respondent Judge ruled in his order dated June 20, 1986 that he found "no
compelling reason to disturb its ruling of March 31, 1986" but allowed petitioner to
"file anew the appropriate probate proceedings for each of the testator" (Records,
p. 391).
The Order dated June 20, 1986 prompted petitioner to file a second motion for
reconsideration stating that she was "ready to submit further evidence on the law
obtaining in the State of New York" and praying that she be granted "the
opportunity to present evidence on what the law of the State of New York has on
the probate and allowance of wills" (Records, p. 393).
On July 18, respondent Judge denied the motion holding that to allow the probate
of two wills in a single proceeding "would be a departure from the typical and
established mode of probate where one petition takes care of one will." He pointed
out that even in New York "where the wills in question were first submitted for
probate, they were dealt with in separate proceedings" (Records, p. 395).
On August 13, 1986, petitioner filed a motion for the reconsideration of the Order
of July 18, 1986, citing Section 3, Rule 2 of the Rules of Court, which provides that
no party may institute more than one suit for a single cause of action. She pointed
out that separate proceedings for the wills of the spouses which contain basically
the same provisions as they even named each other as a beneficiary in their
respective wills, would go against "the grain of inexpensive, just and speedy
determination of the proceedings" (Records, pp. 405-407).
On September 11, 1986, petitioner filed a supplement to the motion for
reconsideration, citing Benigno v. De La Pea, 57 Phil. 305 (1932) (Records,
p. 411), but respondent Judge found that this pleading had been filed out of time
and that the adverse party had not been furnished with a copy thereof. In her
compliance, petitioner stated that she had furnished a copy of the motion to the
counsel of the Cunanan heirs and reiterated her motion for a "final ruling on her
supplemental motion" (Records, p. 421).
On November 19, respondent Judge issued an order, denying the motion for
reconsideration filed by petitioner on the grounds that "the probate of separate
wills of two or more different persons even if they are husband and wife cannot be
undertaken in a single petition" (Records, pp. 376-378).
Hence, petitioner instituted the instant petition, arguing that the evidence offered
at the hearing of April 11, 1983 sufficiently proved the laws of the State of New
York on the allowance of wills, and that the separate wills of the Cunanan spouses
need not be probated in separate proceedings.
II
Petitioner contends that the following pieces of evidence she had submitted before
respondent Judge are sufficient to warrant the allowance of the wills:
(a) two certificates of authentication of the respective wills of Evelyn and Jose by
the Consulate General of the Philippines (Exhs. "F" and "G");
(b) two certifications from the Secretary of State of New York and Custodian of the
Great Seal on the facts that Judge Bernard L. Reagan is the Surrogate of the Country
of Onondaga which is a court of record, that his signature and seal of office are
genuine, and that the Surrogate is duly authorized to grant copy of the respective
wills of Evelyn and Jose
(Exhs. "F-1" and "G-1");
(c) two certificates of Judge Reagan and Chief Clerk Donald E. Moore stating that
they have in their records and files the said wills which were recorded on April 7,
1982 (Exhs. "F-2" and "G-2");
(d) the respective wills of Evelyn and Jose (Exhs. "F-3", "F-6" and Exh. "G-3" "G-
6");
(e) certificates of Judge Reagan and the Chief Clerk certifying to the genuineness
and authenticity of the exemplified copies of the two wills (Exhs. "F-7" and "F-7");
(f) two certificates of authentication from the Consulate General of the Philippines
in New York (Exh. "H" and "F").
(g) certifications from the Secretary of State that Judge Reagan is duly authorized to
grant exemplified copies of the decree of probate, letters testamentary and all
proceedings had and proofs duly taken
(Exhs. "H-1" and "I-1");
(h) certificates of Judge Reagan and the Chief Clerk that letters testamentary were
issued to Rafael G. Cunanan (Exhs. "H-2" and "I-2");
(i) certification to the effect that it was during the term of Judge Reagan that a
decree admitting the wills to probate had been issued and appointing Rafael G.
Cunanan as alternate executor (Exhs. "H-3" and
"I-10");
(j) the decrees on probate of the two wills specifying that proceedings were held
and proofs duly taken (Exhs. "H-4" and "I-5");
(k) decrees on probate of the two wills stating that they were properly executed,
genuine and valid and that the said instruments were admitted to probate and
established as wills valid to pass real and personal property (Exhs. "H-5" and "I-5");
and
(l) certificates of Judge Reagan and the Chief Clerk on the genuineness and
authenticity of each others signatures in the exemplified copies of the decrees of
probate, letters testamentary and proceedings held in their court (Exhs. "H-6" and
"I-6") (Rollo, pp. 13-16).
Petitioner adds that the wills had been admitted to probate in the Surrogate Courts
Decision of April 13, 1983 and that the proceedings were terminated on November
29, 1984.
The respective wills of the Cunanan spouses, who were American citizens, will only
be effective in this country upon compliance with the following provision of the Civil
Code of the Philippines:
Art. 816. The will of an alien who is abroad produces effect in the Philippines if
made with the formalities prescribed by the law of the place in which he resides, or
according to the formalities observed in his country, or in conformity with those
which this Code prescribes.
Thus, proof that both wills conform with the formalities prescribed by New York
laws or by Philippine laws is imperative.
The evidence necessary for the reprobate or allowance of wills which have been
probated outside of the Philippines are as follows: (1) the due execution of the will
in accordance with the foreign laws; (2) the testator has his domicile in the foreign
country and not in the Philippines; (3) the will has been admitted to probate in such
country; (4) the fact that the foreign tribunal is a probate court, and (5) the laws of
a foreign country on procedure and allowance of wills (III Moran Commentaries on
the Rules of Court, 1970 ed., pp. 419-429; Suntay v. Suntay, 95 Phil. 500 [1954];
Fluemer v. Hix, 54 Phil. 610 [1930]). Except for the first and last requirements, the
petitioner submitted all the needed evidence.
The necessity of presenting evidence on the foreign laws upon which the probate in
the foreign country is based is impelled by the fact that our courts cannot take
judicial notice of them (Philippine Commercial and Industrial Bank v. Escolin, 56
SCRA 266 [1974]).
Petitioner must have perceived this omission as in fact she moved for more time to
submit the pertinent procedural and substantive New York laws but which request
respondent Judge just glossed over. While the probate of a will is a special
proceeding wherein courts should relax the rules on evidence, the goal is to receive
the best evidence of which the matter is susceptible before a purported will is
probated or denied probate (Vda. de Ramos v. Court of Appeals, 81 SCRA 393
[1978]). There is merit in petitioners insistence that the separate wills of the
Cunanan spouses should be probated jointly. Respondent Judges view that the
Rules on allowance of wills is couched in singular terms and therefore should be
interpreted to mean that there should be separate probate proceedings for the
wills of the Cunanan spouses is too literal and simplistic an approach. Such view
overlooks the provisions of Section 2, Rule 1 of the Revised Rules of Court, which
advise that the rules shall be "liberally construed in order to promote their object
and to assist the parties in obtaining just, speedy, and inexpensive determination of
every action and proceeding."
A literal application of the Rules should be avoided if they would only result in the
delay in the administration of justice (Acain v. Intermediate Appellate Court, 155
SCRA 100 [1987]; Roberts v. Leonidas, 129 SCRA 33 [1984]).
What the law expressly prohibits is the making of joint wills either for the testators
reciprocal benefit or for the benefit of a third person (Civil Code of the Philippines,
Article 818). In the case at bench, the Cunanan spouses executed separate wills.
Since the two wills contain essentially the same provisions and pertain to property
which in all probability are conjugal in nature, practical considerations dictate their
joint probate. As this Court has held a number of times, it will always strive to settle
the entire controversy in a single proceeding leaving no root or branch to bear the
seeds of future litigation (Motoomull v. Dela Paz, 187 SCRA 743 [1990]).
This petition cannot be completely resolved without touching on a very glaring fact
petitioner has always considered herself the sole heir of
Dr. Evelyn Perez Cunanan and because she does not consider herself an heir of Dr.
Jose F. Cunanan, she noticeably failed to notify his heirs of the filing of the
proceedings. Thus, even in the instant petition, she only impleaded respondent
Judge, forgetting that a judge whose order is being assailed is merely a nominal or
formal party (Calderon v. Solicitor General, 215 SCRA 876 [1992]).
The rule that the court having jurisdiction over the reprobate of a will shall "cause
notice thereof to be given as in case of an original will presented for allowance"
(Revised Rules of Court, Rule 27, Section 2) means that with regard to notices, the
will probated abroad should be treated as if it were an "original will" or a will that is
presented for probate for the first time. Accordingly, compliance with Sections 3
and 4 of Rule 76, which require publication and notice by mail or personally to the
"known heirs, legatees, and devisees of the testator resident in the Philippines" and
to the executor, if he is not the petitioner, are required. The brothers and sisters of
Dr. Jose F. Cunanan, contrary to petitioner's claim, are entitled to notices of the
time and place for proving the wills. Under Section 4 of Rule 76 of the Revised Rules
of Court, the "court shall also cause copies of the notice of the time and place fixed
for proving the will to be addressed to the designated or other known heirs,
legatees, and devisees of the testator, . . . "
WHEREFORE, the questioned Order is SET ASIDE. Respondent Judge shall allow
petitioner reasonable time within which to submit evidence needed for the joint
probate of the wills of the Cunanan spouses and see to it that the brothers and
sisters of Dr. Jose F. Cunanan are given all notices and copies of all pleadings
pertinent to the probate proceedings. SO ORDERED.
TIME OF PROBATE
[G.R. No. L-5405. January 31, 1956.]
ERNESTO M. GUEVARA, Petitioner, vs. ROSARIO GUEVARA and PEDRO C.
QUINTO, Respondents.
DECISION
CONCEPCION, J.:
This is a petition for review by certiorari of a decision of the Court of Appeals. The
pertinent facts are set forth in said decision, from which we
quote:chanroblesvirtuallawlibrary
This case being the sequel to, and aftermath of, a previous litigation between the
parties that reached the Supreme Court, through the former Court of Appeals, it
becomes necessary to restate the essential antecedent facts to view the issues in
proper perspective. For this purpose, it is important to recall that on August 26,
1931, Victorino L. Guevara, a resident of Bayambang, Pangasinan, executed a will
(Exhibit A), distributing assorted movables and a residential lot among his children,
Rosario and Ernesto Guevara, and his stepchildren, Vivencio, Eduvigis, Dionista,
Candida, and Pio Guevara. To his second wife Augustia Posadas, the testator
bequeathed, in addition to various movables, a portion of 25 hectares to be taken
out of a 259 odd hectare parcel outlined in Plan Psu-68618, plus another five (5)
hectares in settlement of her widows usufruct. The balance of the 259 odd
hectares he distributed as follows:chanroblesvirtuallawlibrary
100 hectares reserved for disposal during the testators lifetime and for payment of
his debts and family expenses;
108.0854 hectares to his legitimate son Ernesto Guevara, including therein 43.2342
hectares by way of mejora;
21.6171 hectares to mi hija natural reconocida Rosario Guevara.
Ernesto Guevara was appointed executor without bond.
On July 12, 1933, the same testator executed a deed of sale in favor of Ernesto
Guevara, conveying to the latter the southern half of the 259-hectare lot heretofore
mentioned, and expressly recognized Ernesto Guevara as owner of the northern
half.
Prior to this sale, on November 1, 1932, Victorino and his son Ernesto had jointly
applied for registration of the big parcel (case No. 15174), but in view of the sale
from the former to the latter, the decree was issued in the name of Ernesto
Guevara exclusively and for the whole tract, a certificate of title (No. 51691 of
Pangasinan) being issued in his sole name on October 12, 1933.
Fifteen days previously, i.e., on September 27, 1933, Victorino Guevara died, but his
will was not filed for probate. About four years later, Rosario Guevara, claiming to
be a recognized natural child of the deceased Victorino, and on the assumption that
he had died intestate, brought suit against Ernesto Guevara to recover 423,492
square meters of the tract covered by certificate of title No. 51691 as the portion
that should correspond to her (Rosario) by way of legitime.
The case reached the former Court of Appeals in due course and was decided in
Rosario Guevaras favor (Exhibit E); chan roblesvirtualawlibrarybut upon certiorari,
the Supreme Court modified the judgment in December, 1943, as follows (Exhibit
F);
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 latters assumption of the obligation to
pay all the debts of the deceased, is hereby affirmed; chan
roblesvirtualawlibrarybut the judgment of said court insofar as it awarded any relief
to the Respondent Rosario Guevara in this action is hereby reversed and set aside,
and the parties 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 herein 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. (Appellants Brief, pp. 13-14.)
Claiming to act pursuant to the foregoing decision, Rosario Guevara commenced on
October 5, 1945, special proceedings No. 2646 in the Court of First Instance of
Pangasinan for the probate of the will of Victorino Guevara. In paragraph 10 of the
petition, it was alleged:chanroblesvirtuallawlibrary
10. Que dicho testamento, o sus disposiciones testamentarias, ha sido de jure
revocado, o revocados, en cuanto a la parcela de terreno de 259 hectareas descrita
en dicho testamento, por haber el testador enajenado o dispuesto intervivos de la
misma en la forma mencionada en las tres decisiones supra-mencionadas; chan
roblesvirtualawlibraryy que la solicitante pide la legalizacion de dicho testamento In his appeal therefrom, Petitioner Ernesto M. Guevara raises the following
tan solo para los efectos del reconocimiento de hija natural hecha en dicho questions, to wit:chanroblesvirtuallawlibrary (a) Did Respondents herein duly
testamento a favor de la demandante y en obediencia al mandato de la Corte perfect their appeal from the decision of the Court of First Instance of Pangasinan?
Suprema en su decision supra. (Record on Appeal, p. 5.) (b) Did the Court of Appeals have jurisdiction to entertain said appeal? (c) Is the
petition for probate of the alleged will of the deceased Victorino L. Guevara barred
Notice of the petition having been duly published pursuant to Rule of Court 77, by the statute of limitations?
section 4, Ernesto Guevara appeared and opposed the probate. Pedro L. Quinto,
counsel for Rosario in the former litigation, was allowed to intervene in view of his (1) With reference to the first question, Petitioner has submitted the following
duly recorded attorneys lien. statement 1 of the steps taken since June 23, 1947, date of the resolution of Judge
Maalac, dismissing the petition for probate of the last will and testament of
On January 31, 1946, Ernesto Guevara, through counsel, filed a motion to dismiss Victoriano L. Guevara:chanroblesvirtuallawlibrary
the petition on the grounds that (a) the petition itself alleged that the will was
revoked; chan roblesvirtualawlibrary(b) that whatever right to probate the parties June 23, 1947
Date of Resolution appealed from.
may have has already prescribed (Record on Appeal, p. 14); chan
July 14, 1947
roblesvirtualawlibraryand (c) that the purpose of the probate was solely to Date of Joint Petition for Reconsideration filed by Appellants.
have Petitioner Rosario declared an acknowledged natural child of the deceased. July 25, 1947
Date of Amended petition for probate of will.
By order of December 9, 1946, Judge Sotero Rodas denied the motion to July 25, 1947
Motion for admission of Amended Petition.
dismiss; chan roblesvirtualawlibrarybut upon motion of reconsideration, Judge
August 2, 1947
Maalac of the same court, on June 23, 1937, reconsidered and set aside the Appellants motion to postpone hearing on petition for reconsideration and motion for admission of
previous resolution and ordered the petition dismissed on the ground that Rosario Amended Petition.
Guevaras petition did not ask for the probate in toto of the will, contrary to the August 10, 1947
Appellants urgent motion for continuance of hearing on joint petition for Reconsideration as well as
order of the Supreme Court; chan roblesvirtualawlibrarythat her right to petition for
Motion to Admit Amended Petition.
the probate of the testament of Victorino L. Guevara had prescribed; chan August 25, 1947
roblesvirtualawlibraryand that her action for judicial declaration of Motion for extension of time to file memorandum.
acknowledgment had likewise prescribed. September 1, 1947
Memorandum for Appellants submitted.
October 7, 1947
An amended petition for the probate of the will in toto and another petition to Memorandum for Appellee submitted.
reconsider the previous order were subsequently denied; chan October 14, 1947
roblesvirtualawlibrarythe former on the ground that there was a radical change of Appellants petition for ten (10) days to file reply memorandum.
theory from that embodied in the original petition, and the second for the same November 1, 1947
Appellants petition to file reply memorandum on or before November 9, 1947.
reasons stated in the order of June 23, 1947. Rosario L. Guevara and Pedro L. November 8, 1947
Quinto thereupon brought the case on appeal to this Court, assigning no less than Appellants petition for extension to file reply memorandum.
twenty (20) alleged errors committed by the court below. (Guevara vs. Guevara, November 18, 1947
C.A. G. R. No. 5416-R, promulgated December 26, 1951; chan Verified reply of Appellant Rosario Guevara.
November 24, 1947
roblesvirtualawlibrarysee Appendix to brief for the Petitioner-Appellant, pp. 1-6.) Reply memorandum of Pedro C. Quinto filed.
January 12, 1948
The dispositive part of the decision of the Court of Appeals reads as Court denies both petitions of July 14 and 25, 1947.
follows:chanroblesvirtuallawlibrary January 24, 1948
Notice of appeal to Supreme Court and petition for thirty (30) days extension by Appellant Rosario
The order of dismissal of the petition for probate is reversed and the court of Guevara.
January 29, 1948
origin ordered to reinstate the petition, and to hear and decide whether the will of Order granting petition for extension.
Victorino Guevara, deceased, should be allowed to probate. Costs February 1, 1948
against Appellees in both instances. (Ibid.) Another notice of appeal to Supreme Court and motion for thirty (30) days extension
by AppellantRosario Guevara.
February 28, 1948 April 16, 1949
Appellants ex-parte petition for further extension. Appellant Rosario Guevaras motion for fifteen (15) days extension for the same purpose.
March 6, 1948 April 21, 1949
Original joint Record on Appeal filed. (This was so defective and incomplete it consisted of mere Court granted extension prayed for to expire May 1, 1948.
disjointed sheets of paper intercalated with one another and was a mere token record on appeal.) April 21, 1949
March 8, 1948 Second Re-Amended Record on Appeal filed.
Another joint petition for reconsideration of Appellants. June 11, 1949
March 11, 1948 Appellees opposition to Second Re-Amended Record on Appeal.
Appellees objection to record on appeal. June 29, 1949
March 17, 1948 Appellants joint notice of hearing on Second Re-Amended Record on Appeal for July 12, 1949.
Verified reply of Appellants to objection. July 10, 1949
March 18, 1948 Appellants joint reply to opposition.
Appellees objection to joint petition for reconsideration. July 12, 1949
June 19, 1948 Action on record on appeal deferred on petition of Atty. Quinto.
Appellants memorandum in support of the joint petition for reconsideration. September 3, 1949
July 23, 1948 Appellant Quintos notice of hearing on Second Re-Amended Record on Appeal for September 28, 1949.
Order of denial of Joint Petition and disapproving original record on appeal as incomplete and September 28, 1949
giving Appellants within 10 days from notice. Order of court approving same.
July 26, 1948 December 8, 1949
Amended Notice of Appeal to the Court of Appeals instead of to the Supreme Court. Clerk of lower court sends records to appellate court.
July 28 and 29, 1948 December 10, 1949
Appellants received copy of order of July 23, 1948. Appellant Quintos motion ex-parte to have records sent up to appellate court.
August 1, 1948 (Petitioner-Appellants Brief, pp. 41-47.)
Petition for five (5) days extension to file amended Record on Appeal filed by Appellant Pedro C. Quinto. Based upon the foregoing, Oppositor and Appellee Ernesto M. Guevara filed, with
August 10, 1948
the Court of Appeals, a motion praying that the appeal be
Appellants Joint Petition for last extension of two (2) days.
August 10, 1948 dismissed:chanroblesvirtuallawlibrary
Filing of amended joint record on appeal. (This is also again so defective and incomplete as to constitute (a) Because due to the Appellants many and repeated dilatory tactics, the
another mere token record on appeal as required by the Rules.) prosecution of their appeal has been unduly and unreasonably delayed for a period
August 24, 1948
which should strike anyone as totally without justification. The resolution appealed
Appellants petition for ten (10) days period to reply to objection, if any was to be filed.
August 27, 1948 from was dictated by the lower court on June 23, 1947, so that a period of over two
Appellees objection to amended record on appeal. (2) years and nine (9) months until the date of this writing has elapsed, thus
September 8, 1948 establishing a record-holding delay which should not be sanctioned by the Courts as
Appellants reply to objection.
prejudicial to the administration of justice.
October 20, 1948
Court order sustaining objection and gives Appellants fifteen (15) days from notice to redraft record on
appeal. (b) Because Appellants, in violation of Rule 48, section 3, did not diligently
November 3, 1948 prosecute their appeal by failing to have the record sent up to this Honorable Court
Appellants joint petition to reconsider order of disapproval of Amended Record on Appeal. within thirty (30) days from the time their Second Re-amended Record on Appeal
November 3, 1948
was approved on September 28, 1949; chan roblesvirtualawlibraryand it was only
Appellants file re-amended joint record on appeal. (This again disregarded the orders of the court
regarding the contents of the record on appeal.). so transmitted on December 8, 1949, that is after the lapse of two (2) months and
November 22, 1948 ten (10) days.
Appellee objected to approval of re-amended joint record on appeal and prayed that order appealed
from be declared final. (c) Because, at any rate, the first Amended Joint Record on Appeal was filed
March 22, 1949
Court sustains Appellees objection to record on appeal denying petition for reconsideration
beyond the extension granted by the Court and, consequently, the Appellants right
and Appellants given fifteen (15) days from notice to satisfy requirements of courts previous order. to appeal has lapsed. (Exhibit A, pp. 1-2).
April 8, 1949
Appellants file in Supreme Court petition for certiorari and mandamus attacking order of June 23, 1947. The Court of Appeals denied said motion to dismiss for the following
April 11, 1949 reasons:chanroblesvirtuallawlibrary
Appellant Quintos petition for fifteen (15) days extension to file Re-amended Record on Appeal.
April 12, 1949
Supreme Court denies petition off-hand.
A preliminary question was posed by the Appellee who prayed for the dismissal of
the appeal on the ground that Petitioners-Appellants had unreasonably delayed the
perfection of the appeal, as the Second Re-amended Joint Record on Appeal was
not certified to this Court until December, 1949. After considering the voluminous
record, and the arguments of both parties, we are of the opinion that both parties
have contributed to the delay with lengthy memoranda, and repeated motions and
objections. Moreover, the points in question are important enough to deserve
adequate consideration upon the merits. Wherefore, the motion to dismiss the
appeal should be and is hereby, overruled and denied. (Appendix to Brief for
the Petitioner-Appellant, pp. 6- 7.)
It is urged by Petitioner herein that Respondents appeal from the decision of the
Court of First Instance of Pangasinan had not been duly perfected
because:chanroblesvirtuallawlibrary (a) the original of the record on appeal did not
comply with the Rules of Court; chan roblesvirtualawlibrary(b) the record on appeal
was filed after the lapse of the reglementary period; chan roblesvirtualawlibrary(c)
there has been an unprecedented delay in the filing of a satisfactory record on
appeal; chan roblesvirtualawlibraryand (d) the appeal should be deemed
abandoned for violation of Rule 48, section 3, of the Rules of Court.
The first ground is predicated upon the fact that, instead of transcribing the
motions, petitions, orders and resolutions incorporated in the original record on
appeal, Respondents herein merely attached to the original copy of said record on
appeal, filed with the Court of First Instance of Pangasinan, their own copies of said
motions, petitions, orders and resolutions. Accordingly, the copy of said record on
appeal furnished to Petitioner herein did not contain or enclose the
aforementioned parts of the record. It appears, however, that
the Respondents were given several extensions of time within which to comply with
the pertinent provisions of the Rules of Court and that Respondents eventually did
so. There being no question about the authority of the court of first instance to
grant said extensions of time, it is clear that the first ground, relied upon
by Petitioner herein, is untenable.
In support of the second ground, it is alleged:chanroblesvirtuallawlibrary (a) that
the original record on appeal was filed by Pedro C. Quinto only, and does not inure
to the benefit of Rosario Guevara; chan roblesvirtualawlibraryand (b)
that Respondents had lost their right to appeal by the lapse of the reglementary
period. As regards the first proposition, Petitioner asserts that Respondent Pedro C.
Quinto had withdrawn his appearance as counsel for Respondent Rosario
Guevara; chan roblesvirtualawlibrarythat Quinto had, thereafter, intervened in the
case in his own behalf, in order to enforce his attorneys lien, as former counsel for
Rosario Guevara; chan roblesvirtualawlibrarythat, consequently, the original record
on appeal and the petitions for extension of time to file an amended record on
appeal, filed by Pedro C. Quinto, were good only insofar as he is concerned, and
cannot profit Rosario Guevara, she having ceased to be his client long before the
filing of said original record on appeal and petitions for extension of time; chan
roblesvirtualawlibrarythat this interest in the case arises from his rights as former
attorney for Respondent Rosario Guevara, and, as such, is subordinate to, and
dependent upon, the interest therein of said Rosario Guevara and the success of
her claim therein; chan roblesvirtualawlibraryand that, her appeal not having been
duly perfected, his appeal must be deemed to have no legal effect. There is no
merit in this pretense, for it appears, at the foot of said record on appeal, that
Pedro C. Quinto had filed the same, for himself as Appellant and in behalf of
Rosario Guevara, who authorized him to perfect the appeal for both Appellants,
and that similar statements were made in the body and at the foot of said petitions
for extension of time. It is clear, therefore, that the aforementioned record on
appeal and motions should be deemed submitted, also, by Respondent Rosario
Guevara. The position then held by Pedro C. Quinto, as special prosecutor in the
office of the Solicitor General, did not nullify his aforesaid acts on behalf of Rosario
Guevara. Besides, said acts would seem to have been performed by him, more as
attorney-in- fact than as counsel for Rosario Guevara, and this merely in connection
with the perfection of her appeal. We do not find therein anything objectionable,
either legally or morally, in the light of the circumstances surrounding the case.
The second proposition is based upon the following
reasons:chanroblesvirtuallawlibrary
(a) The aforementioned record on appeal and motions for extension of time filed
by Quinto on behalf of Rosario Guevara did not inure to her benefit, for which
reason the reglementary period to appeal had expired before the perfection of her
appeal. For the reasons already adverted to, this argument is clearly untenable.
(b) The petition for reconsideration filed by Respondents on July 14, 1947, did not
suspend the running of the period to perfect the record on appeal, because said
petition did not comply with the provisions of Rule 37, section 1, of the Rules of
Court, reading as follows:chanroblesvirtuallawlibrary
Within thirty days after notice of the judgment in an action, the aggrieved party
may move the trial court to set aside the judgment end grant a new trial for one or
more of the following causes materially affecting the substantial rights of said
party:chanroblesvirtuallawlibrary
(a) Fraud, accident, mistake or excusable negligence which ordinary prudence
could not have guarded against and by reason of which such aggrieved party has
probably been impaired in his rights;
(b) Newly discovered evidence, which he could not, with reasonable diligence, have
discovered, and produced at the trial, and which if presented would probably alter
the result;
(c) Because excessive damages have been awarded, or the evidence was
insufficient to justify the decision, or it is against the law.
Said petition for reconsideration appears, however, to be predicated, in effect,
upon the ground that the evidence is insufficient to justify the decision of the court
of first instance, and that said decision is contrary to law. It partakes, therefore, of
the nature of a motion for new trial, stating specifically the reasons in support
thereof, and, hence, it suspended the period to appeal until the determination of
said motion.
Relative to the alleged unprecedented delay in the filing of a satisfactory record on
appeal, we agree with the finding of the Court of Appeals to the effect that the
delay was due to the acts of the Respondents, as well as of the Petitioner herein, for
both had asked several postponements and extensions of time, filed memoranda
and reply memoranda, and raised or provoked a number of other issues or
incidents which necessarily delayed the perfection of the appeal.
Obviously, Petitioner should not be allowed to profit by said delay, to which he had
actively contributed. 1
Lastly, Petitioner maintains that, although the record on appeal had been approved
on September 28, 1949, it was not forwarded to the Court of Appeals until
December 8, 1949. Section 3 of Rule 48 of the Rules of Court
provides:chanroblesvirtuallawlibrary
If the record on appeal is not received by the Court of Appeals within thirty days
after the approval thereof, the Appellee may, upon notice to the Appellant, move
the court to grant an order directing the clerk of the lower court forthwith to
transmit such record on appeal or to declare the same abandoned for failure to
prosecute.
Considering that Respondents herein were not notified of the approval of the
record on appeal until December 8, 1949, on which date the record on appeal was
forwarded to the Court of Appeals, and that the aforementioned provision of the
Rules of Court does impose upon said court the mandatory duty to declare the
appeal abandoned for failure to prosecute, we believe that no error was committed
in giving due course to the appeal and that the same has been duly perfected.
(2) Did the Court of Appeals have jurisdiction to try the case, on appeal from the
decision of the court of first instance? Petitioner maintains the negative, upon the
ground that the appeal involved only questions of law. This is not correct, for the
very motion for reconsideration adverted to above, indicated that the appeal raised
some issues of fact, such as, for instance, whether or not the will in question was in
the possession of Respondent Rosario Guevara and whether RespondentQuinto had
been authorized by her to perfect the appeal on her behalf. At any rate, the case is
now before us and, upon examination of the record and consideration of all the
issues therein raised, we are of the opinion that, had the appeal been forwarded
directly to this Court, we would have disposed of it in the manner set forth in the
decision of the Court of Appeals, the review of which is sought by herein Appellant.
(3) The last question for determination in this case is whether or not the petition
for probate of the will of Victorino L. Guevara is barred by the statute of limitations,
considering that the testator died on September 27, 1933, and that the petition for
probate of said will was filed twelve (12) years later, or, to be exact, on October 5,
1945. The Court of Appeals resolved the question in the negative, upon the
following grounds:chanroblesvirtuallawlibrary
We are of the opinion that the Court below was in error when it declared that the
petition for probate of the will of Victorino Guevara was barred by prescription. The
provision of Article 756 of the old Civil Code (1042 of the New) and of Rule 76 of the
Rules of Court, reiterating those of the old Code of Civil Procedure (Act 190), point
out that the presentation of a decedents will to the competent court has always
been deemed by our law as more of a duty than a right, and the neglect of such
obligation carries with it the corresponding penalty and it is inconsistent with that
policy that the court should refuse to admit wills to probate, without inquiry into
their validity. The authority given to testators to dispose freely of a portion of their
estate would be imperfectly safeguarded, unless adequate measures were provided
by the state to assure that the wishes of the deceased would be carried out.
Because the decedent may no longer act to have his testamentary dispositions duly
executed, the state authority must take over the opposite vigilance and supervision,
so that free testamentary disposition does not remain a delusion and a dream. This
was expressly recognized by the Supreme Court in its previous decision, G. R. No.
48840 (Exhibit E) when it said:chanroblesvirtuallawlibrary
cralaw 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 do 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. (Italics supplied)
In holding the statute of limitations applicable to the probate of wills, the court
below failed to notice that its doctrine was destructive of the right of testamentary
disposition and violative of the owners right to control his property within the legal
limits. The appealed order in fact leaves wills at the mercy and whim of custodians
and heirs interested in their suppression. The lower court would in effect abdicate
the tutelary power that passed to the Republic from the former sovereigns, that
potestad suprema que en mi reside para velar por el puntual cumplimiento de las
ultimas voluntades, asserted as one of the royal prerogatives in the Real Cedula of
March 18, 1776.
It is not without purpose that Rule of Court 77 prescribes that any person
interested in the estate may, at any time after the death of the testator, petition
the court having jurisdiction to have the will allowed. Taken from the Code of
Procedure of California, this provision has been interpreted as meaning that the
statute of limitations has no application to probate of wills. In the case of In re
Humes Estate, 179 Calif. 338, 176 Pac. 681, the California Supreme Court ruled
that:chanroblesvirtuallawlibrary
The chapter of the Code relating to the probate of wills does not provide for
opposition to such probate on the ground of the bar of the statute of limitations,
but, in effect, excludes it from the category of grounds allowed as a basis for such
opposition. Section 1299 declares that any person interested in the estate may at
any time after the death of the testator, petition the court having jurisdiction to
have the will proved. This implies that there is no arbitrary time limit.
As additional reasons, the same Court stated:chanroblesvirtuallawlibrary
cralaw Section 1317 declares:chanroblesvirtuallawlibrary If the court is satisfied,
upon the proof taken or from the facts found by the jury that the will was duly
executed and that the will testator at the time of its execution was of sound and
disposing mind and not acting under duress menace fraud, or undue influence, a
certificate of the proof and the facts found, signed by the judge and attested by the
seal of the court, must be attached to the will.
This excludes the bar of the statute of limitation from consideration as one of the
matters which may be shown in opposition to the probate. This is further
emphasized by section 1341, which, in substance, declares that, if upon the verdict
of the jury the facts mentioned in section 1317 as aforesaid appear to be
established, the court must admit the will to probate. Section 1314 thus makes it
imperative that the court shall admit the will to probate if the execution is proven
and the grounds of opposition authorized by section 1312 are not established. This
clearly implies that no grounds of opposition other than those enumerated in
section 1312 may be set up, and it leaves no place for the application of the statute
of limitations.
It is further to be observed that, notwithstanding the positive and comprehensive
language of sections 343 and 369, if taken literally, there can be no doubt that they
cannot apply to all special proceedings of a civil nature. Proceedings for a change of
name, or in arbitration, or for voluntary dissolution of a corporation, or for
guardianship, or for a married woman to become a sole trader, are all within the
definition of the phrase, and each is enumerated, classed, and defined as such
proceeding by the Code. If the statute of limitations applied, it would begin to run
against such proceedings as soon as the right to institute them accrued. Yet from
the very nature of these proceedings it is obvious that neither of them could be
subject to such limitation.
This construction of these Code provisions is confirmed by the long-continued and
uniform practice and the universal understanding of the bench and bar of the state
on the subject.
xxx xxx xxx
Action to quiet title frequently involve wills of persons who have died many years
before the action was begun. The section contemplates that such a will, although
not yet probated, may be construed in the action and may be afterwards probated,
and it clearly shows that the Legislature did not understand that the right to
probate such will would be barred if the testator had died more than four years
before the petition for probate was filed.
This uniform practice and understanding of the bench and bar, and of the
legislative department of the state also, is a strong argument to the effect that the
statute of limitations does not apply to such proceedings. The authorities on the
effect of such long acquiescence are numerous.
The Statute of Limitations upon which the court below has relied, sections 38 to 50
of the old Code of Civil Procedure, Act 190, undertakes to fix limits for the filing of
civil actions, but none for special proceedings of which probate is admittedly one.
The distinction is not purely verbal, but based on differences that make the
limitation to actions inapplicable to special proceedings. In this regard, the
Supreme Court of New York has adequately remarked (In re Canfields Will, 300 NYS
502):chanroblesvirtuallawlibrary
A Respondent in a private proceeding owes no legal duty or obligation to the
proponent as such, wherefore it is impossible for him to violate such non-existent
obligation. Furthermore such a proceeding is not instituted for the vindication of
any personal right to the proponent. The subject-matter is therefore wholly absent
which could give rise to any cause of action against any Respondent therein.
The primary purpose of the proceeding is not to establish the existence of the right
of any living person, but to determine whether or not the decedent has performed
the acts specified by the pertinent statutes which are the essential prerequisites to
personal direction of the mode of devolution of his property on death. There is no
legal but merely a moral duty resting upon a proponent to attempt to validate the
wishes of the departed, and he may and frequently does receive no personal
benefit from the performance of the act.
One of the most fundamental conceptions of probate law, is that it is the duty of
the court to effectuate, in so far as may be compatible with the public interest, the
devolutionary wishes of a deceased person (Matter of Watsons Will, 262 N.Y. 284,
294, 186 N.E. 787; chan roblesvirtualawlibraryMatter of Marrimans Estate, 124
Misc. 320, 325, 208 N.Y.S. 672; chan roblesvirtualawlibraryFoley, S. affirmed 217
App. Div. 733, 216 N.Y.S. 842; chan roblesvirtualawlibraryMatter of Lensmans
Estate, 137 Misc. 77, 78, 243 N.Y.S. 126, Henderson, S., Matter of Drakes Estate,
160 Misc. 587, 598, 290 N.Y.S. 581). To that end, the court is, in effect, an additional
party to every litigation affecting the disposal of the assets of the deceased. Matter
of Van Valkenburghs Estate, 164 Misc. 295, 296, 298 N.Y.S. 219. A determination,
therefore, that the mere non-action of a person upon whom no legal duty rested in
this regard, could have the effect of subverting the wishes of one who was no
longer able to protect his own unquestionable rights, would strike at the very
foundation of all conceptions of justice as administered in probate courts.
These decisions are of high persuasive value (Cu vs. Republic, G. R. L-3018, July 18,
1951); chan roblesvirtualawlibrarythey represent the trend of authority (57 Am. Jur.
585), and enable us to conclude that reason and precedent reject the applicability
of the Statute of Limitations to probate proceedings, because these are not
exclusively established in the interest of the surviving heirs, but primarily for the
protection of the testators expressed wishes, that are entitled to respect as an
effect of his ownership and right of disposition. If the probate of validly executed
wills is required by public policy, as declared by the Supreme Court in the previous
case, G.R. 48840 (Exhibit E), the state could not have intended the statute of
limitations to defeat that policy.
It is true, as ruled by the trial court, that the rights of parties should not be left
hanging in uncertainty for periods of time far in excess of the maximum period of
ten years allowed by law; chan roblesvirtualawlibrarybut the obvious remedy is for
the other interested persons to petition for the production of the will and for its
probate, or to inflict upon the guilty party the penalties prescribed by Rule 76 or
declare the unworthiness of the heir under the Civil Code for concealing or
suppressing the testament; chan roblesvirtualawlibrarybut not to dismiss the
petition for probate, however belatedly submitted, and thereby refuse sanction to
testamentary dispositions executed with all the formalities prescribed by law,
incidentally prejudicing also those testamentary heirs who do not happen to be
successors ab intestato. That in this particular case the appealed rule may not work
injustice would not excuse its adoption as a general norm applicable to all cases.
It is likewise reasonable to assume that if the Supreme Court had considered the
ten-year limitation applicable to probate proceedings, it would not have ordered
the parties on December 29, 1943 to present the document Exhibit A to the proper
court for probate in accordance with law, because the ten years from the death of
the testator expired in September of that same year, two months before the
decision. It is safe to assume that the high Court would not order a useless step. The
reasoning that the phrase in accordance with law was a qualification signifying if
still legally possible, appears to be far-fetched and unjustified. The plain import of
the words employed by the high Court is that the probate should follow the
procedure provided for the purpose.
xxx xxx xxx
The other reasons advanced by the court a quo in support of its order dismissing
the petition are also untenable. The allegation contained in paragraph 10 of the
original petition, that the will, or its testamentary dispositions, had been de jure
revoked in so far as the parcel of 259 hectares described in said will is concerned,
does not justify the finding that the probate would be pointless. What is alleged is a
partial revocation, only as to the parcel of land affected; chan
roblesvirtualawlibrarybut as previously shown, the will disposed of other property
besides that one. And even granting that the next allegation to the effect
that Plaintiff sought to probate only for the purposes of her acknowledgment as
natural child in said will, constitutes an averment that the will had been fully
revoked, the same would at the most constitute a conclusion or inference that the
lower court was not bound to admit. Because the Appellant claimed or believed
that the revocation of the will as to the large parcel of land, constituted a total
revocation of the testament is no reason why the court should concur in the same
belief or conclusion, especially when the will itself, appended to the petition,
showed that there were other properties and other heirs or legatees, and the trial
court had before it the decision of the Supreme Court ordering the filing of the will
for its probate because, as stated in its decision, such a step was enjoined by law
and public policy. Moreover, the defect, if any, incurred in failing to ask for the
probate in toto of the will, was subsequently cured and corrected in the amended
petition, where not only the objectionable statements were eliminated, but others
added indicating the existence of a partible estate.
Assuming that the original petition violated the order of the Supreme Court in so
far as it did not ask for the allowance of the entire will, the court below erred in
dismissing the petition, for it thereby sanctioned further disobedience to the order
of the superior court. Once again, it must be repeated that the order of dismissal
failed to take into account that the case involved not only the interests of Rosario
Guevara, and those of the Appellee Ernesto Guevara and the other legatees, but
specially the express desires of the testator; chan roblesvirtualawlibraryand that the
protection and defense of the latter developed upon the court itself, since no one Endnotes:chanroblesvirtuallawlibrary
else made any move to enforce them.
1. The record shows that the petitions for postponement and extension of time,
Even if the other heirs had failed to show interest in the case (a fact not properly and other motions filed by Petitioner in the court of first instance had delayed the
inferable from their non-intervention in the case, because the order of publication perfection of the appeal by over 100 days.
of the petition only called for those interested to appear to contest the allowance
and not to support it) (Rec. on App., p. 7), and even if the other heirs had already 1. This statement does not include some petitions filed by Petitioner, which likewise
received their shares, the order refusing the probate remains indefensible. If the delayed the perfection of the appeal.
other heirs were not interested, there remained the wishes of the testator to be
supported and protected, if validly expressed. If the heirs had distributed the
estate, the distribution was illegal and improper unless the will be first probated.
The Supreme Court so ruled in its previous decision (G. R. 48840) heretofore
quoted.

Even if the decedent left no debts and nobody 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:chanroblesvirtuallawlibrary first, because the law
expressly provides that no will shall pass either real or personal estate unless it is
proved and allowed in the proper court; chan roblesvirtualawlibraryand, second,
because the probate of a will, which is a proceeding in rem, cannot be dispensed
with and substituted by any other proceeding, judicial or extrajudicial, without
offending against public policy designed to effectuate the testators 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
revindicacion or partition.

From whatever angle the case is viewed, a hearing on the allowance of the will is
unavoidable. The persistent, albeit obnoxious, attempts of Rosario Guevara to
sidetrack the will are not remedied by dismissing the petition for probate of will,
and allowing Ernesto to retain a greater interest than that intended by the
testator. (Appendix to brief for the Petitioner-Appellant, pp. 7-15, 17-20.)

We are fully in accord with these findings which we adopt as ours.

In view of the foregoing, the decision appealed from is hereby affirmed, with the
costs of this instance against the Petitioner.

Padilla, Reyes, A., Jugo, Bautista Angelo and Labrador, JJ., concur.
ESTOPPEL PROBATE
[G.R. No. L-7210. September 26, 1956.]
OLIMPIA OBISPO and FELICIANO CARPIO, Petitioners, vs. REMEDIOS OBISPO,
CONRADO ALINEA and THE COURT OF APPEALS (Second Division), Respondents.
DECISION
PADILLA, J.:
Remedios Obispo, born out of wedlock on 5 of August 1921, is the daughter of
Sebastian Obispo and Fructuosa Labrador who at the time of her conception and
birth were free to marry, as in fact they did marry on 4 February 1924 before the
justice of the peace of Botolan, Zambales. Sebastian Obispo is one of the children of
the late Francisco Obispo and Dorotea Apostol. Sebastian Obispo died on 6
December 1940 and his widowed mother Dorotea Apostol on 15 June 1945. On 12
of August 1940, Dorotea Apostol and her five children with her late husband
Francisco Obispo executed a deed of partition not only of the parcels of land which
were the exclusive property of her late husband but also those belonging to her as
paraphernal (Exhibit A). Parcels No. 2, 3 and 4 described in the complaint belonged
exclusively to the late Francisco Obispo, whereas parcels Nos. 1 and 5 also
described in the complaint were paraphernal of Dorotea Apostol. In accordance
with the partition the five parcels of land were awarded to Sebastian Obispo. On 17
October 1940, Sebastian Obispo executed a deed of donation of eleven parcels of
land including the five awarded to him in the deed of partition (Exhibit A) to his wife
Fructuosa Labrador and his daughter Remedios Obispo Labrador (Exhibit B). As
already stated, on 15 June 1945 Dorotea Apostol died and her daughter Olimpia
Obispo commenced proceedings for the probate of a will of her late mother where
she was named executrix (Exhibit 1). Remedios Obispo brought an action against
Olimpia Obispo to recover possession of vie parcels of land, alleging that the
second, third and fourth parcels of land described in the complaint were inherited
by her from her late father Sebastian Obispo who in turn had inherited them from
his late father Francisco, by virtue of a deed of portion executed by the surviving
widow and her five children had with her late husband Francisco Obispo (Exhibit
A); chan roblesvirtualawlibraryand the first and fifth parcels of and also described in
the complaint were inherited by her from her late grandmother Dorotea Apostol, in
representation of her late father Sebastian Obispo. After trial, the Court of First
Instance of Zambales rendered judgment holding
cralaw that Remedios Obispo y Labrador was the natural child of the late Sebastian
Obispo and Fructuosa Labrador, duly acknowledged and legitimated by the
subsequent marriage of her parents, and as such is entitled to inherit from
both her father and her grandmother, Dorotea Apostol; chan
roblesvirtualawlibrarythat the deeds of partition (Exhibit A) and donation (Exhibit
B) were perfectly valid and binding with respect to Remedios Obispo and her
grandmother, Dorotea Apostol, and other children of the latter and with respect to
the properties described therein; chan roblesvirtualawlibraryand that said
Remedios Obispo came into possession and became the owner of the said five
parcels of land described in the complaint by virtue of said two deeds.
The court likewise orders the Defendants to return to the Plaintiffs the above
mentioned five parcels of land and to deliver to the latter thirty cavanes every year
or to pay them the Plaintiffs) the equivalent market value of P10 a cavan or in all
P300 form 1942 until the delivery is made, and to pay the costs of this action.
Olimpia Obispo appealed from the judgment to the Court of Appeals claiming that
Remedios Obispo could not be deemed legitimated by subsequent marriage
because she was not duly acknowledged by her father in the record of birth, or in a
will, nor was she being then a minor acknowledged with judicial approval, as
provided for in article 133 of the old Civil Code; chan roblesvirtualawlibrarythat the
deed of partition was not legally sufficient to convey and transfer to the parties
thereto the possession and ownership of the parcels of land partitioned therein
which included parcels of land belonging as paraphernal to Dorotea Apostol, for she
could revoke said partition by the execution of a last will and testament. The Court
of Appeals affirmed the judgment of the trial court. The Defendants come to this
Court by way of certiorari to have the judgment of the Court of Appeals reviewed.
In support of their contention that lack of judicial approval of the acknowledgment
of minor Remedios Obispo as natural child made under oath on 17 October 1940
before the justice of the peace of Cabangan, Zambales, by her father Sebastian
(Exhibit E), prevents her from acquiring the condition or status of legitimated child
by subsequent marriage, the Petitioners cite article 121 of the old Civil Code which
provides:chanroblesvirtuallawlibrary
Children shall be considered as legitimated by a subsequent marriage only when
they have been acknowledged by the parents before or after the celebration
thereof;
the second paragraph of article 133 of the same Code which
provides:chanroblesvirtuallawlibrary
The approval of the court to be granted after hearing the prosecuting officers, shall
be necessary to the acknowledgment of a minor, unless such acknowledgment be
made in a certificate of birth or in a will;
and the decisions of this Court, to wit:chanroblesvirtuallawlibrary Legarre vs.
Cuerques, 34 Phil., 221; chan roblesvirtualawlibraryMadridejo vs. De Leon, 55 Phil
1; chan roblesvirtualawlibraryand In re:chanroblesvirtuallawlibrary Judicial approval
of the acknowledgment of Zenaida Jiro Mori, 46 Off. Gaz., 5460.
In Legarre vs. Cuerque, supra, and In re:chanroblesvirtuallawlibrary Judicial
approval of the acknowledgment of Zenaida Jiri Mori supra, there was no marriage
of the natural parents; chan roblesvirtualawlibraryand an acknowledgment before a
notary public was held insufficient. In Madridejo vs. De Leon, supra, the marriage of
the natural parents alone without an acknowledgment by them of the natural child
could not bring about legitimation of the child. For the validity or legality of an
acknowledgment of a minor natural child by any of his natural parents, under the
provisions of Article 133 of the old Civil Code, judicial approval thereof was
necessary. Article 133 of the old Civil Code comes under Chapter IV, Title V, Book I,
that deals with illegitimate children and acknowledgment of natural children,
whereas Article 121 of the same Code comes under the preceding chapter that
treats of legitimated children. The acknowledgment required in article 121 is not
the same as that required in Article 133 when the natural child to be acknowledged
is a minor. The acknowledgment under the former article does not need judicial
approval. Commenting on this article Manresa says:chanroblesvirtuallawlibrary
En que forma se ha de hacer el reconocimiento? El Codigo la establece
taxativamente en el art. 131, y a el nos remitimos para esta cuestion.
Pero bastara la manifestacion a que se refiere el Articulo 67 numero 3. de la ley del
Registro civil? Segun dicho numero, en las inscripciones de matrimonio deben
constar los nombres de los hijos naturales que por el matrimonio se legitiman y que
los constrayentes hayan manifestado haber tenido. Esta manifestacion, seguida de
su insercion en el acta de matrimonio, y de las notas que debe motivar en las
respectivas actas de nacimiento, no pueden menos de consideren las respectivas
actas de nacimiento, no pueden menos de considerarse como un reconocimiento
formal de los hijos naturales, consignado en forma que merece fe, por lo cual
creemos que es desde signado luego suficiente a los efectos del art. 121 cralaw .
(Comentarios al Codigo Civil Espanol, Vol. 1, p. 569, 5th ed.)
From this it may be inferred that the judicial approval of an acknowledgment of a
minor natural child for the purpose of legitimation by marriage of the natural
parents is not necessary. And commenting on Article 133, the same author
says:chanroblesvirtuallawlibrary
Los padres, como dijimos en su lugar, pueden contraer matrimonio, y hacer constar
en el acta los nombres de sus hijos naturales que por el matrimonio han de ser
legitimados. Hemos considerado este acto suficiente a los efectos del
reconocimiento; chan roblesvirtualawlibrarypero como no consta hecho ni en el
acta de nacimiento, ni en el testamento de los padres si el hijo, o los hijos son
menores de edad, como seralo mas frecuente, se necesitara la aprobacion judicial,
con arreglo al art. 133? Parece a primera vista irremediable ese requisito, lo que
equevaldria a arrebatar a esos hijos, en muchos casos, algo irreflexivamente, la
legitimidad que debia corresponderles. Aunque tenemos la creencia de que el
legislador, lo mismo en este articulo que en el 131 y aun en el 121, no tuvo en
cuenta la cuestion presentada, debe, en nuestra opinion, resolverse en el sentido
mas favorable a los hijos, atendiendo al espiritu del Codigo en la materia, a los
principios generales de Derecho, y las razones legales
siguientes:chanroblesvirtuallawlibrary primera, que la manifestacion hecha por los
padres en el acta de su matrimonio de tener determinados hijos naturales y querer
legitimarlos, debe hacerse constar por nota en las actas de nacimiento de esos
hijos, con arreglo a la ley del Registro civil, con lo cual, el reconocimiento del menor
resultara en el acta de su nacimiento, debiendo asi estimarse cumplido el art.
133; chan roblesvirtualawlibraryy segunda, que este articulo exige el
consentimiento del hijo para ser reconcido como natural solamente; chan
roblesvirtualawlibrarypero no hay articulo alguno considere necesario ese
consentimiento, o, en su defecto, la aprobacion judicial para ser considerado como
legitimo, y la exigencia de tal requisito y consiguiente aplicacion del articulo 133 al
caso propuesto, solo conduciria a privar a los hijos en ciertos casos de su condicion
de legitimos, por vanas, absurdas e innecessarias exigencias literales de
interpretacion. (supra, pp. 595-596.)
We are of the opinion that the acknowledgment under oath of minor Remedios
Obispo as natural child of Sebastian Obispo made by the latter on 17 October 1940
before a justice of the peace (Exhibit E) did not need judicial approval for her to
acquire the status of legitimated child by the marriage of her natural parents.
As regards the claim that the partition was null and void and of no effect because
Dorotea Apostol could not enter into an agreement or contract regarding future
inheritance with her children, suffice it to say that, as to the three parcels of land
which belonged exclusively to her late spouse Francisco Obispo, said partition was
lawful and valid as she did not have any right to said parcels of land except her
usufruct as widow which she could waive. As to the first and fifth parcels of land
which are paraphernal, the Court of Appeals found:chanroblesvirtuallawlibrary
cralaw We have gone carefully over the evidence of record, and we fully concur
with the trial court that each of the heirs of the late Francisco Obispo took
possession of their respective shares allotted to them after the execution of the
deed of partition (Exhibit A). In fact, it would even appear from the deed of
partition itself that some of the heirs have possessed and sold some of their shares
even before the execution of the deed of partition. Andres Obispo, another brother
of AppellantOlimpia, also said that all of the heirs took possession of their
respective shares after the execution of the deed of partition. While this witness
was presented as a witness for the Appellees, his testimony deserves full faith and
credit because we find nothing in the evidence of record to show why he took the
side of Plaintiff Remedios Obispo, his niece, as against DefendantOlimpia Obispo,
his own sister.
We also agree with the findings of the Court below that parcels Nos. 2, 3 and 4, of
the complaint, were originally the exclusive property of the late Francisco Obispo,
while the other two parcels of land were the property of the late Dorotea Apostol.
Parcels Nos. 2, 3 and 4 are declared in the name of Francisco Obispo while parcels
Nos. 1 and 5 are declared under he name of Dorotea Apostol. Furthermore, Andres
Obispo also testified that parcels Nos. 2, 3 and 4 belonged to his father, Francisco
Obispo, and parcels Nos. 1 and 5 to his mother, Dorotea Apostol. We find,
therefore, no valid reason why the extrajudicial partition made between Dorotea
Apostol and her children had with the late Francisco Obispo, with respect to the
estate of said Francisco Obispo, should not be respected. Its due execution is not
impugned, and it has always been the tendency in courts, whether sittings as a
probate courts or courts of ordinary jurisdiction, to respect the wishes of a
deceased or the division made by his heirs, unless the disposition or division is not
in accordance with law. With redisposition or division is not in accordance with law.
With respect to the estate of Dorotea Apostol, such as parcels Nos. 1 and 5 of the
complaint, which were also adjudicated in favor of the late Sebastian Obispo in the
partition, we agree with counsel for the Appellant that, upon the authority of the
doctrine laid down by this Court in Maria Reyes vs. Anicia Reyes, 45 Off. Gaz., April
1949, p. 1836, the late Dorotea Apostol had the right to revoke the partition insofar
as her own properties were concerned as she, in fact, did when she executed her
will (Exhibit 1). But she could not deprive her granddaughter, Remedios, of her just
share in the inheritance. The right of Remedios Obispo to represent her father is
not affected by the fact that her said father predeceased Dorotea Apostol, because
she enjoys the same rights as legitimate children (Article 122, old Civil Code). This is
one of the rights appertaining to a legitimated natural child of a descendant who
predeceases his own legitimate parent, which is not enjoyed by an acknowledged
natural child (Llorente vs. Rodriguez, 10 Phil. 595). Since it has not been shown that
the apportionment of parcels Nos. 1 and 5 in favor of the late Sebastian Obispo
affects the two-thirds, legitime of the others heirs of Dorotea Apostol, such
apportionment should also be respected.

Finding no error in the judgment appealed from, we affirm it, with costs against
the Petitioners.

Paras, C.J., Bengzon, Montemayor, Reyes, A., Bautista Angelo, Reyes, J.B.L.,
Endencia, and Felix, JJ., concur.
REVOCATION OF A WILL
G.R. No. 76464 February 29, 1988
TESTATE ESTATE OF THE LATE ADRIANA MALOTO, ALDINA MALOTO CASIANO,
CONSTANCIO MALOTO, PURIFICACION MIRAFLOR, ROMAN CATHOLIC CHURCH OF
MOLO, AND ASILO DE MOLO, petitioners,
vs. COURT OF APPEALS, PANFILO MALOTO AND FELINO MALOTO, respondents.
SARMIENTO, J.:
This is not the first time that the parties to this case come to us. In fact, two other
cases directly related to the present one and involving the same parties had already
been decided by us in the past. In G.R. No. L-30479, 1 which was a petition for
certiorari and mandamus instituted by the petitioners herein, we dismissed the
petition ruling that the more appropriate remedy of the petitioners is a separate
proceeding for the probate of the will in question. Pursuant to the said ruling, the
petitioners commenced in the then Court of First Instance of Iloilo, Special
Proceeding No. 2176, for the probate of the disputed will, which was opposed by
the private respondents presently, Panfilo and Felino both surnamed Maloto. The
trial court dismissed the petition on April 30, 1970. Complaining against the
dismissal, again, the petitioners came to this Court on a petition for review by
certiorari. 2 Acting on the said petition, we set aside the trial court's order and
directed it to proceed to hear the case on the merits. The trial court, after hearing,
found the will to have already been revoked by the testatrix. Adriana Maloto, and
thus, denied the petition. The petitioners appealed the trial court's decision to the
Intermediate Appellate Court which, on June 7, 1985, affirmed the order. The
petitioners' motion for reconsideration of the adverse decision proved to be of no
avail, hence, this petition.
For a better understanding of the controversy, a factual account would be a great
help.
On October 20, 1963, Adriana Maloto died leaving as heirs her niece and nephews,
the petitioners Aldina Maloto-Casiano and Constancio, Maloto, and the private
respondents Panfilo Maloto and Felino Maloto. Believing that the deceased did not
leave behind a last will and testament, these four heirs commenced on November
4, 1963 an intestate proceeding for the settlement of their aunt's estate. The case
was instituted in the then Court of First Instance of Iloilo and was docketed as
Special Proceeding No. 1736. However, while the case was still in progress, or to be
exact on February 1, 1964, the parties Aldina, Constancio, Panfilo, and Felino
executed an agreement of extrajudicial settlement of Adriana's estate. The
agreement provided for the division of the estate into four equal parts among the
parties. The Malotos then presented the extrajudicial settlement agreement to the
trial court for approval which the court did on March 21, 1964. That should have
signalled the end of the controversy, but, unfortunately, it had not.
Three years later, or sometime in March 1967, Atty. Sulpicio Palma, a former
associate of Adriana's counsel, the late Atty. Eliseo Hervas, discovered a document
entitled "KATAPUSAN NGA PAGBUBULAT-AN (Testamento)," dated January 3,1940,
and purporting to be the last will and testament of Adriana. Atty. Palma claimed to
have found the testament, the original copy, while he was going through some
materials inside the cabinet drawer formerly used by Atty. Hervas. The document
was submitted to the office of the clerk of the Court of First Instance of Iloilo on
April 1, 1967. Incidentally, while Panfilo and Felino are still named as heirs in the
said will, Aldina and Constancio are bequeathed much bigger and more valuable
shares in the estate of Adriana than what they received by virtue of the agreement
of extrajudicial settlement they had earlier signed. The will likewise gives devises
and legacies to other parties, among them being the petitioners Asilo de Molo, the
Roman Catholic Church of Molo, and Purificacion Miraflor.
Thus, on May 24, 1967, Aldina and Constancio, joined by the other devisees and
legatees named in the will, filed in Special Proceeding No. 1736 a motion for
reconsideration and annulment of the proceedings therein and for the allowance of
the will When the trial court denied their motion, the petitioner came to us by way
of a petition for certiorari and mandamus assailing the orders of the trial court . 3 As
we stated earlier, we dismissed that petition and advised that a separate
proceeding for the probate of the alleged will would be the appropriate vehicle to
thresh out the matters raised by the petitioners.
Significantly, the appellate court while finding as inconclusive the matter on
whether or not the document or papers allegedly burned by the househelp of
Adriana, Guadalupe Maloto Vda. de Coral, upon instructions of the testatrix, was
indeed the will, contradicted itself and found that the will had been revoked. The
respondent court stated that the presence of animus revocandi in the destruction
of the will had, nevertheless, been sufficiently proven. The appellate court based its
finding on the facts that the document was not in the two safes in Adriana's
residence, by the testatrix going to the residence of Atty. Hervas to retrieve a copy
of the will left in the latter's possession, and, her seeking the services of Atty. Palma
in order to have a new will drawn up. For reasons shortly to be explained, we do
not view such facts, even considered collectively, as sufficient bases for the
conclusion that Adriana Maloto's will had been effectively revoked.
There is no doubt as to the testamentary capacity of the testatrix and the due
execution of the will. The heart of the case lies on the issue as to whether or not the
will was revoked by Adriana.
The provisions of the new Civil Code pertinent to the issue can be found in Article
830.
Art. 830. No will shall be revoked except in the following cases:
(1) By implication of law; or
(2) By some will, codicil, or other writing executed as provided in case of wills: or
(3) By burning, tearing, cancelling, or obliterating the will with the intention of
revoking it, by the testator himself, or by some other person in his presence, and by
his express direction. If burned, torn cancelled, or obliterated by some other person,
without the express direction of the testator, the will may still be established, and
the estate distributed in accordance therewith, if its contents, and due execution,
and the fact of its unauthorized destruction, cancellation, or obliteration are
established according to the Rules of Court. (Emphasis Supplied.)
It is clear that the physical act of destruction of a will, like burning in this case, does
not per se constitute an effective revocation, unless the destruction is coupled
with animus revocandi on the part of the testator. It is not imperative that the
physical destruction be done by the testator himself. It may be performed by
another person but under theexpress direction and in the presence of the testator.
Of course, it goes without saying that the document destroyed must be the will
itself.
In this case, while animus revocandi or the intention to revoke, may be conceded,
for that is a state of mind, yet that requisite alone would not suffice. "Animus
revocandi is only one of the necessary elements for the effective revocation of a last
will and testament. The intention to revoke must be accompanied by the overt
physical act of burning, tearing, obliterating, or cancelling the will carried out by the
testator or by another person in his presence and under his express direction. There
is paucity of evidence to show compliance with these requirements. For one, the
document or papers burned by Adriana's maid, Guadalupe, was not satisfactorily
established to be a will at all, much less the will of Adriana Maloto. For another, the
burning was not proven to have been done under the express direction of Adriana.
And then, the burning was not in her presence. Both witnesses, Guadalupe and
Eladio, were one in stating that they were the only ones present at the place where
the stove (presumably in the kitchen) was located in which the papers proffered as
a will were burned.
The respondent appellate court in assessing the evidence presented by the private
respondents as oppositors in the trial court, concluded that the testimony of the
two witnesses who testified in favor of the will's revocation appear "inconclusive."
We share the same view. Nowhere in the records before us does it appear that the
two witnesses, Guadalupe Vda. de Corral and Eladio Itchon, both illiterates, were
unequivocably positive that the document burned was indeed Adriana's will.
Guadalupe, we think, believed that the papers she destroyed was the will only
because, according to her, Adriana told her so. Eladio, on the other hand, obtained
his information that the burned document was the will because Guadalupe told him
so, thus, his testimony on this point is double hearsay.
At this juncture, we reiterate that "(it) is an important matter of public interest that
a purported win is not denied legalization on dubious grounds. Otherwise, the very
institution of testamentary succession will be shaken to its very foundations ...."4
The private respondents in their bid for the dismissal of the present action for
probate instituted by the petitioners argue that the same is already barred by res
adjudicata. They claim that this bar was brought about by the petitioners' failure to
appeal timely from the order dated November 16, 1968 of the trial court in the
intestate proceeding (Special Proceeding No. 1736) denying their (petitioners')
motion to reopen the case, and their prayer to annul the previous proceedings
therein and to allow the last will and testament of the late Adriana Maloto. This is
untenable.
The doctrine of res adjudicata finds no application in the present controversy. For a
judgment to be a bar to a subsequent case, the following requisites must concur:
(1) the presence of a final former judgment; (2) the former judgment was rendered
by a court having jurisdiction over the subject matter and the parties; (3) the former
judgment is a judgment on the merits; and (4) there is, between the first and the
second action, Identity of parties, of subject matter, and of cause of action. 5 We do
not find here the presence of all the enumerated requisites.
For one, there is yet, strictly speaking, no final judgment rendered insofar as the
probate of Adriana Maloto's will is concerned. The decision of the trial court in
Special Proceeding No. 1736, although final, involved only the intestate settlement
of the estate of Adriana. As such, that judgment could not in any manner be
construed to be final with respect to the probate of the subsequently discovered
will of the decedent. Neither is it a judgment on the merits of the action for
probate. This is understandably so because the trial court, in the intestate
proceeding, was without jurisdiction to rule on the probate of the contested will
. 6 After all, an action for probate, as it implies, is founded on the presence of a will
and with the objective of proving its due execution and validity, something which
can not be properly done in an intestate settlement of estate proceeding which is
predicated on the assumption that the decedent left no will. Thus, there is likewise
no Identity between the cause of action in intestate proceeding and that in an
action for probate. Be that as it may, it would be remembered that it was precisely
because of our ruling in G.R. No. L-30479 that the petitioners instituted this
separate action for the probate of the late Adriana Maloto's will. Hence, on these
grounds alone, the position of the private respondents on this score can not be
sustained.
One last note. The private respondents point out that revocation could be inferred
from the fact that "(a) major and substantial bulk of the properties mentioned in
the will had been disposed of: while an insignificant portion of the properties
remained at the time of death (of the testatrix); and, furthermore, more valuable
properties have been acquired after the execution of the will on January
3,1940." 7 Suffice it to state here that as these additional matters raised by the
private respondents are extraneous to this special proceeding, they could only be
appropriately taken up after the will has been duly probated and a certificate of its
allowance issued.

WHEREFORE, judgment is hereby rendered REVERSING and SETTING ASIDE the

Decision dated June 7, 1985 and the Resolution dated October 22, 1986, of the
respondent Court of Appeals, and a new one ENTERED for the allowance of Adriana
Maloto's last will and testament. Costs against the private respondents.

This Decision is IMMEDIATELY EXECUTORY.

SO ORDERED.
G.R. No. L-2538 September 21, 1951
Testate Estate of the Deceased MARIANO MOLO Y LEGASPI. JUANA JUAN VDA. DE
MOLO, petitioner-appellee,
vs.
LUZ, GLICERIA and CORNELIO MOLO, oppositors-appellants.
Claro M. Recto and Serafin C. Dizon for appellants.
Delgado & Flores for appellee.
BAUTISTA ANGELO, J.:
This is an appeal from an order of the Court of First Instance of Rizal admitting to
probate the last will and testament of the deceased Mariano Molo y Legaspi
executed on August 17, 1918. The oppositors-appellants brought the case on appeal
to this Court for the reason that the value of the properties involved exceeds
P50,000.
Mariano Molo y Legaspi died on January 24, 1941, in the municipality of Pasay,
province of Rizal, without leaving any forced heir either in the descending or
ascending line. He was survived, however, by his wife, the herein petitioner Juana
Juan Vda. de Molo, and by his nieces and nephew, the oppositors-appellants, Luz
Gliceria and Cornelio, all surnamed Molo, who were the legitimate children of
Candido Molo y Legaspi, deceased brother of the testator. Mariano Molo y Legaspi
left two wills, one executed on August 17, 1918, (Exhibit A) and another executed
on June 20, 1939. (Exhibit I). The later will executed in 1918.
On February 7, 1941, Juana Juan Vda. de Molo, filed in the Court of First Instance of
Rizal a petition, which was docketed as special proceeding No. 8022 seeking the
probate of the will executed by the deceased on June 20, 1939. There being no
opposition, the will was probated. However, upon petition filed by the herein
oppositors, the order of the court admitting the will to probate was set aside and
the case was reopened. After hearing, at which both parties presented their
evidence, the court rendered decision denying the probate of said will on the
ground that the petitioner failed to prove that the same was executed in
accordance with law.
In view of the disallowance of the will executed on June 20, 1939, the widow on
February 24, 1944, filed another petition for the probate of the will executed by the
deceased on August 17, 1918, which was docketed as special proceeding No. 56, in
the same court. Again, the same oppositors filed an opposition to the petition
based on three grounds: (1) that petitioner is now estopped from seeking the
probate of the will of 1918; (2) that said will has not been executed in the manner
required by law and (3) that the will has been subsequently revoked. But before the
second petition could be heard, the battle for liberation came and the records of
the case were destroyed. Consequently, a petition for reconstitution was filed, but
the same was found to be impossible because neither petitioner nor oppositors
could produce the copies required for its reconstitution. As a result, petitioner filed
a new petition on September 14, 1946, similar to the one destroyed, to which the
oppositors filed an opposition based on the same grounds as those contained in
their former opposition. Then, the case was set for trial, and on May 28, 1948, the
court issued an order admitting the will to probate already stated in the early part
of this decision. From this order the oppositors appealed assigning six errors, to wit.
I. The probate court erred in not holding that the present petitioner voluntarily and
deliberately frustrated the probate of the will dated June 20, 1939, in special
proceeding No. 8022, in order to enable her to obtain the probate of another
alleged will of Molo dated 191.
II. The court a quo erred in not holding that the petitioner is now estopped from
seeking the probate of Molo's alleged will of 1918.
III. The lower court erred in not holding that petitioner herein has come to court
with "unclean hands" and as such is not entitled to relief.
IV. The probate court erred in not holding that Molo's alleged will of August 17,
1918 was not executed in the manner required by law.
V. The probate court erred in not holding that the alleged will of 1918 was
deliberately revoked by Molo himself.
VI. The lower court erred in not holding that Molo's will of 1918 was subsequently
revoked by the decedent's will of 1939.
In their first assignment of error, counsel for oppositors contend that the probate
court erred in not holding that the petitioner voluntarily and deliberately frustrated
the probate of the will dated June 20, 1939, in order to enable her to obtain the
probate of the will executed by the deceased on August 17, 1918, pointing out
certain facts and circumstances with their opinion indicate that petitioner connived
with the witness Canuto Perez in an effort to defeat and frustrate the probate of
the 1939 will because of her knowledge that said will intrinsically defective in that
"the one and only testamentory disposition thereof was a "disposicion captatoria".
These circumstances, counsel for the appellants contend, constitute a series of
steps deliberately taken by petitioner with a view to insuring the realization of her
plan of securing the probate of the 1918 will which she believed would better
safeguard her right to inherit from the decease.
These imputations of fraud and bad faith allegedly committed in connection with
special proceedings No. 8022, now closed and terminated, are vigorously met by
counsel for petitioner who contends that to raise them in these proceedings which
are entirely new and distinct and completely independent from the other is
improper and unfair as they find no support whatsoever in any evidence submitted
by the parties in this case. They are merely based on the presumptions and
conjectures not supported by any proof. For this reason, counsel, contends, the
lower court was justified in disregarding them and in passing them sub silentio in its
decision.
A careful examination of the evidence available in this case seems to justify this
contention. There is indeed no evidence which may justify the insinuation that
petitioner had deliberately intended to frustrate the probate of the 1939 will of the
deceased to enable her to seek the probate of another will other than a mere
conjecture drawn from the apparently unexpected testimony of Canuto Perez that
he went out of the room to answer an urgent call of nature when Artemio Reyes
was signing the will and the failure of petitioner later to impeach the character of
said witness in spite of the opportunity given her by the court to do so. Apart from
this insufficiency of evidence, the record discloses that this failure has been
explained by petitioner when she informed the court that she was unable to
impeach the character of her witness Canuto Perez because of her inability to find
witnesses who may impeach him, and this explanation stands uncontradicted.
Whether this explanation is satisfactory or not, it is not now, for us to determine. It
is an incident that comes within the province of the former case. The failure of
petitioner to present the testimony of Artemio Reyes at the hearing has also been
explained, and it appears that petitioner has filed because his whereabouts could
not be found. Whether this is true or not is also for this Court to determine. It is
likewise within the province and function of the court in the former case. And the
unfairness of this imputation becomes more glaring when we stock of the
developments that had taken place in these proceedings which show in bold relief
the true nature of the conduct, behavior and character of the petitioner so bitterly
assailed and held in disrepute by the oppositors.
It should be recalled that the first petition for the probate of the will executed on
June 20, 1939, was filed on February 7, 1941, by the petitioner. There being no
opposition, the will was probated. Subsequently, however, upon petition of the
herein oppositors, the order of the court admitting said will to probate was set
aside, over the vigorous opposition of the herein petitioner, and the case was
reopened. The reopening was ordered because of the strong opposition of the
oppositors who contended that he will had not been executed as required by law.
After the evidence of both parties had been presented, the oppositors filed an
extensive memorandum wherein they reiterated their view that the will should be
denied probate. And on the strenght of this opposition, the court disallowed the
will.
If petitioner then knew that the 1939 will was inherently defective and would make
the testamentary disposition in her favor invalid and ineffective, because it is a
"disposicion captatoria", which knowledge she may easily acquire through
consultation with a lawyer, there was no need her to go through the order of filing
the petition for the probate of the will. She could accomplish her desire by merely
suppressing the will or tearing or destroying it, and then take steps leading to the
probate of the will executed in 1918. But for her conscience was clear and bade her
to take the only proper step possible under the circumstances, which is to institute
the necessary proceedings for the probate of the 1939 will. This she did and the will
was admitted to probate. But then the unexpected happened. Over her vigorous
opposition, the herein appellants filed a petition for reopening, and over her
vigorous objection, the same was granted and the case was reopened. Her motion
for reconsideration was denied. Is it her fault that the case was reopened? Is it her
fault that the order admitting the will to probate was set aside? That was a
contingency which petitioner never expected. Had appellants not filed their
opposition to the probate of the will and had they limited their objection to the
intrinsic validity of said will, their plan to defeat the will and secure the intestacy of
the deceased would have perhaps been accomplished. But they failed in their
strategy. If said will was denied probate it is due to their own effort. It is now unfair
to impute bad faith petitioner simply because she exerted every effort to protect
her own interest and prevent the intestacy of the deceased to happen.
Having reached the foregoing conclusions, it is obvious that the court did not
commit the second and third errors imputed to it by the counsel for appellants.
Indeed, petitioner cannot be considered guilty or estoppel which would prevent her
from seeking the probate of the 1918 will simply because of her effort to obtain the
allowance of the 1939 will has failed considering that in both the 1918 and 1939
wills she was in by her husband as his universal heir. Nor can she be charged with
bad faith far having done so because of her desire to prevent the intestacy of her
husband. She cannot be blamed being zealous in protecting her interest.
The next contention of appellants refers to the revocatory clause contained in 1939
will of the deceased which was denied probate. They contend that, notwithstanding
the disallowance of said will, the revocatory clause is valid and still has the effect of
nullifying the prior of 1918.
Counsel for petitioner meets this argument by invoking the doctrine laid down in
the case of Samson vs. Naval, (41 Phil., 838). He contends that the facts involved in
that case are on all fours with the facts of this case. Hence, the doctrine is that case
is here controlling.
There is merit in this contention. We have carefully read the facts involved in the
Samson case we are indeed impressed by their striking similarity with the facts of
this case. We do not need to recite here what those facts are; it is enough to point
out that they contain many points and circumstances in common. No reason,
therefore, is seen by the doctrine laid down in that case (which we quote
hereunder) should not apply and control the present case.
A subsequent will, containing a clause revoking a previous will, having been
disallowed, for the reason that it was not executed in conformity with the
provisions of section 618 of the Code of Civil Procedure as to the making of wills,
cannot produce the effect of annulling the previous will, inasmuch as said
revocatory clause is void. (41 Phil., 838.)
Apropos of this question, counsel for oppositors make the remark that, while they
do not disagree with the soundness of the ruling laid down in the Samson case,
there is reason to abandon said ruling because it is archaic or antiquated and runs
counter to the modern trend prevailing in American jurisprudence. They maintain
that said ruling is no longer controlling but merely represents the point of view of
the minority and should, therefore, be abandoned, more so if we consider the fact
that section 623 of our Code of Civil Procedure, which governs the revocation of
wills, is of American origin and as such should follow the prevailing trend of the
majority view in the United States. A long line of authorities is cited in support of
this contention. And these authorities hold the view, that "an express revocation is
immediately effective upon the execution of the subsequent will, and does not
require that it first undergo the formality of a probate proceeding". (p. 63,
appellants' brief .
While they are many cases which uphold the view entertained by counsel for
oppositors, and that view appears to be in controlling the states where the
decisions had been promulgated, however, we are reluctant to fall in line with the
assertion that is now the prevailing view in the United States. In the search we have
made of American authorities on the subject, we found ourselves in a pool of
conflicting opinions perhaps because of the peculiar provisions contained in the
statutes adopted by each State in the subject of revocation of wills. But the
impression we gathered from a review and the study of the pertinent authorities is
that the doctrine laid down in the Samson case is still a good law. On page 328 of
the American Jurisprudence Vol. 57, which is a revision Published in 1948, we found
the following passages which in our opinion truly reflect the present trend of
American jurisprudence on this matter affecting the revocation of wills:
SEC. 471. Observance of Formalities in Execution of Instrument. Ordinarily,
statutes which permit the revocation of a will by another writing provide that to be
effective as a revocation, the writing must be executed with the same formalities
which are required to be observed in the execution of a will. Accordingly, where,
under the statutes, attestation is necessary to the making of a valid will, an
unattested non testamentary writing is not effective to revoke a prior will. It has
been held that a writing fails as a revoking instrument where it is not executed with
the formalities requisite for the execution of a will, even though it is inscribed on
the will itself, although it may effect a revocation by cancellation or obliteration of
the words of the will. A testator cannot reserve to himself the power to modify a
will by a written instrument subsequently prepared but not executed in the manner
required for a will.
SEC, 472. Subsequent Unexecuted, Invalid, or Ineffective Will or Codicil. A will
which is invalid because of the incapacity of the testator, or of undue influence can
have no effect whatever as a revoking will. Moreover, a will is not revoked by the
unexecuted draft of a later one. Nor is a will revoked by a defectively executed will
or codicil, even though the latter contains a clause expressly revoking the former
will, in a jurisdiction where it is provided by a controlling statute that no writing
other than a testamentary instrument is sufficient to revoke a will, for the simple
reason that there is no revoking will. Similarly where the statute provides that a will
may be revoked by a subsequent will or other writing executed with the same
formalities as are required in the execution of wills, a defectively executed will does
not revoke a prior will, since it cannot be said that there is a writing which complies
with the statute. Moreover, a will or codicil which, on account of the manner in
which it is executed, is sufficient to pass only personally does not affect dispositions
of real estate made by a former will, even though it may expressly purport to do so.
The intent of the testator to revoke is immaterial, if he has not complied with the
statute. (57 Am. Jur., 328, 329.)
We find the same opinion in the American Law Reports, Annotated, edited in 1939.
On page 1400, Volume 123, there appear many authorities on the "application of
rules where second will is invalid", among which a typical one is the following:
It is universally agreed that where the second will is invalid on account of not being
executed in accordance with the provisions of the statute, or where the testator
who has not sufficient mental capacity to make a will or the will is procured through
undue influence, or the such, in other words, where the second will is really no will,
it does not revoke the first will or affect it in any manner. Mort vs. Baker University
(193-5) 229 Mo. App., 632, 78 S.W. (2d), 498.
These treaties cannot be mistaken. They uphold the view on which the ruling in the
Samson case is predicated. They reflect the opinion that this ruling is sound and
good and for this reason, we see no justification for abondoning it as now
suggested by counsel for the oppositors.
It is true that our law on the matter (sec. 623, Code Civil Procedure) provides that a
will may be some will, codicil, or other writing executed as proved in case of wills"
but it cannot be said that the 1939 will should be regarded, not as a will within the
meaning of said word, but as "other writing executed as provided in the case of
wills", simply because it was denied probate. And even if it be regarded as any other
writing within the meaning of said clause, there is authority for holding that unless
said writing is admitted to probate, it cannot have the effect of revocation. (See 57
Am. Jur. pp. 329-330).
But counsel for oppositors contemned that, regardless of said revocatory clause,
said will of 1918 cannot still be given effect because of the presumption that it was
deliberately revoked by the testator himself. The oppositors contend that the
testator, after executing the 1939 will, and with full knowledge of the recovatory
clause contained said will, himself deliberately destroyed the original of the 1918
will, and for that reason the will submitted by petitioner for probate in these
proceedings is only a duplicate of said original.
There is no evidence which may directly indicate that the testator deliberately
destroyed the original of the 1918 will because of his knowledge of the revocatory
clause contained in the will he executed in 1939. The only evidence we have is that
when the first will was executed in 1918, Juan Salcedo, who prepared it, gave the
original and copies to the testator himself and apparently they remained in his
possession until he executed his second will in 1939. And when the 1939 will was
denied probate on November 29, 1943, and petitioner was asked by her attorney to
look for another will, she found the duplicate copy (Exhibit A) among the papers or
files of the testator. She did not find the original.
If it can be inferred that the testator deliberately destroyed the 1918 will because
of his knowledge of the revocatory clause of the 1939 will, and it is true that he
gave a duplicate copy thereof to his wife, the herein petitioner, the most logical
step for the testator to take is to recall said duplicate copy in order that it may
likewise be destroyed. But this was not done as shown by the fact that said
duplicate copy remained in the possession of petitioner. It is possible that because
of the long lapse of twenty-one (21) years since the first will was executed, the
original of the will had been misplaced or lost, and forgetting that there was a copy,
the testator deemed it wise to execute another will containing exactly the same
testamentary dispositions. Whatever may be the conclusion we may draw from this
chain of circumstances, the stubborn fact is that there is no direct evidence of
voluntary or deliberate destruction of the first will by the testator. This matter
cannot be inference or conjectur.
Granting for the sake of argument that the earlier will was voluntarily destroyed by
the testator after the execution of the second will, which revoked the first, could
there be any doubt, under this theory, that said earlier will was destroyed by the
testator in the honest belief that it was no longer necessary because he had
expressly revoked it in his will of 1939? In other words, can we not say that the
destruction of the earlier will was but the necessary consequence of the testator's
belief that the revocatory clause contained in the subsequent will was valid and the
latter would be given effect? If such is the case, then it is our opinion that the
earlier will can still be admitted to probate under the principle of "dependent
relative revocation".
This doctrine is known as that of dependent relative revocation, and is usually
applied where the testator cancels or destroys a will or executes an instrument
intended to revoke a will with a present intention to make a new testamentary
disposition as a substitute for the old, and the new disposition is not made or, if
made, fails of effect for same reason. The doctrine is n limited to the existence of
some other document, however, and has been applied where a will was destroyed
as a consequence of a mistake of law. . . . (68 C.J.P. 799).
The rule is established that where the act of destruction is connected with the
making of another will so as fairly to raise the inference that the testator meant the
revocation of the old to depend upon the efficacy of a new disposition intended to
be substituted, the revocation will be conditional and dependent upon the efficacy
of the new disposition; and if, for any reason, the new will intended to be made as a
substitute is inoperative, the revocation fails and the original will remains in full
force. (Gardner, pp. 232, 233.)
This is the doctrine of dependent relative revocation. The failure of a new
testamentary disposition upon whose validity the revocation depends, is equivalent
to the non-fulfillment of a suspensive conditions, and hence prevents the
revocation of the original will. But a mere intent to make at some time a will in the
place of that destroyed will not render the destruction conditional. It must appear
that the revocation is dependent upon the valid execution of a new will. (1
Alexander, p. 751; Gardner, p. 253.)
We hold therefore, that even in the supposition that the destruction of the original
will by the testator could be presumed from the failure of the petitioner to produce
it in court, such destruction cannot have the effect of defeating the prior will of
1918 because of the fact that it is founded on the mistaken belief that the will of
1939 has been validly executed and would be given due effect. The theory on which
this principle is predicated is that the testator did not intend to die intestate. And
this intention is clearly manifest when he executed two wills on two different
occasion and instituted his wife as his universal heir. There can therefore be no
mistake as to his intention of dying testate.
The remaining question to be determined refers to the sufficiency of the evidence
to prove the due execution of the will.
The will in question was attested, as required by law, by three witnesses, Lorenzo
Morales, Rufino Enriquez, and Angel Cuenca. The first two witnesses died before
the commencement of the present proceedings. So the only instrumental witness
available was Angel Cuenca and under our law and precedents, his testimony is
sufficient to prove the due execution of the will. However, petitioner presented not
only the testimony of Cuenca but placed on the witness stand Juan Salcedo, the
notary public who prepared and notarized the will upon the express desire and
instruction of the testator, The testimony of these witnesses shows that the will had
been executed in the manner required by law. We have read their testimony and
we were impressed by their readiness and sincerity. We are convinced that they
told the truth.
Wherefore, the order appealed from is hereby affirmed, with costs against the
appellants.
G.R. No. L-2396 December 11, 1950
In the matter of the petition for the probate of the will of the deceased Pablo M.
Roxas. NATIVIDAD I. VDA. DE ROXAS, petitioner-appellant,
vs. MARIA ROXAS, ET AL., oppositors-appellees.
PARAS, J.:
Pablo Roxas died in the municipality of Bulacan, Province of Bulacan, on July 14,
1946. On August 10, 1946, Natividad Icasiano (the widow) filed in the Court of First
Instance of Bulacan a petition for the probate of a will alleged to have been left by
Pablo Roxas, devising all his properties to Natividad Icasiano and Reynaldo Roxas
(an adulterous son). The will is typewritten and worded in Tagalog and the attesting
witnesses are Jacinto Y. Enriquez, Fortunato R. Gupit and Martin Rodrigo. The will is
dated, in the body, January 1, 1945. No date is given in the attestation clause.
An opposition was filed by Maria Roxas and Pedro Roxas (sister and brother of
Pablo Roxas) on the ground that the alleged will was not executed and attested as
required by law, and that, in any event, it was intended as a mere formal request
which was, however, subsequently revoked as shown by the fact that it was
crumpled with intent to destroy. Upon motion for bill of particulars filed by the
petitioner (Natividad Icasiano), the oppositors (Maria and Pedro Roxas) alleged that
the will is vitiated by the following formal defects: "(a) The alleged last will and
testament was not attested and subscribed by three or more credible witnesses in
the presence of the testator and of each other; (b) The testator and the
instrumental witnesses did not sign the only page of the will on the left margin, nor
was the page numbered in letters on the upper part of the sheet; (c) The attestation
clause does not state that the alleged witnesses thereto witnessed and signed the
will in the presence of the testator and of each other."
After trial, the Court of First Instance of Bulacan rendered a decision disallowing the
probate of the will. The lower court concluded that the body of the will was
typewritten and signed by the testator on a date or occasion different from and
anterior to the date or occasion when the attestation clause was typewritten and
signed by the attesting witnesses, with the result that the will was not signed by the
testator in the presence of the witnesses, and by the latter in the presence of the
testator and of each other, as required in section 618 of Act No. 190 as amended by
Act No. 2645. This conclusion was motivated by the following circumstances
enumerated in the decision: "(a) That the paper on which the alleged will, Exhibit D,
is written has been folded and crumpled; (b) That the body of the will was
typewritten before the signature of Pablo M. Roxas had been affixed thereon and
before it had been folded and crumpled; (c) That after it had been folded and
crumpled, it was smoothened in order to eliminate or minimize as much as possible
the folds and wrinkles, preparatory, to the writing of the attestation clause on the
same typewriter which was used in typewriting the body of the will; (d) That the
attestation clause was typewritten, single space, and a deliberate effort was
exerted to make it appear that it was written by the testator himself at the same
time with the body thereof, but the tell-tale letter "o" and the inequality of the
marginal alignments of both the body and the attestation clause have betrayed the
vain effort; (e) That the texture and fiber of the paper on the portion on which the
signature of the attesting witnesses were affixed had been disturbed and affected
by the interval of time and the ordinary exposure of the paper to the atmosphere
between the signing of the testator and the attesting witnesses, which fact is
revealed by the greater penetrations of the ink in the signature of Pablo M. Roxas;
( f ) That had the testator and the attesting witnesses signed on the same occasion,
the probability was that one or two fountain pens only should have been used
instead of three as testified to unanimously by the expert witnesses both for the
proponent and the oppositors."
The petitioner has appealed. Her counsel insist that the testimony, unanimous in all
essential points, of the three attesting witnesses should be given controlling weight.
Counsel for oppositors, upon the other hand, argue that the testimony of Maria
Roxas, in conjunction with the opinions of experts, should prevail.
The testimony of Fortunato Gupit, Jacinto Y. Enriquez and Martin Rodrigo (the
attesting witnesses) tends to show that they were in the house of Rosario Vda. de
Icasiano (mother-in-law of Gupit) in barrio Sta. Ana, municipality of Bulacan,
Province of Bulacan, on January 1, 1945. Between two and three in the afternoon
Pablo Roxas showed up and, approaching Gupit who was then reading a book,
asked him to go to the sala with Roxas. The latter got from his hip pocket a folded
sheet of paper (the will here in question) and asked Gupit to read it. In the
meantime Roxas proceeded to the dining hall where a mahjong game was being
played and called Enriquez and Rodrigo who thereupon went to the sala and were
asked to read the will previously handed to Gupit. Roxas then made the request for
the three to act as witnesses. Roxas, using his fountain pen, signed it in the
presence of Gupit, Enriquez and Rodrigo. Gupit then signed with his own pen and,
noticing that the ink in his signature was spreading, asked for a blotter. Roxas got a
blotter from a nearby writing desk and gave it to Gupit who accordingly applied it.
Enriquez and Rodrigo, using the pen of Gupit, took their turns in signing the will, the
blotter being also applied. Thereafter, Roxas refolded the document and inserted
the same in his hip pocket.
Fortunato A. Gupit is a certified public accountant. He is the dean of the College of
Business Administration and the comptroller of the Arellano University. Jacinto Y.
Enriquez comes from a distinguished family in Bulacan and is a student in the
University of Santo Tomas. Martin Rodrigo is a businessman and landowner. Gupit
is the husband of a half-sister of the petitioner; Enriquez is a second cousin of
petitioner; and Rodrigo is the husband of a deceased cousin of the petitioner.
The testimony of oppositor Maria Roxas tends to show that on December 30, 1944,
Pablo Roxas asked from her a sheet of typewriting paper. At about one in the
afternoon of January 1, 1945, Pablo Roxas came back to the house of Maria and
showed the will in question signed by Pablo, clean and uncrumpled, and without
any attestation clause. Pablo executed the will as it was shown to Maria, as a mere
ruse to make the petitioner continue loving Reynaldo Roxas (adulterous son of
Pablo Roxas).
Two handwriting experts (Amadeo M. Cabe and Jose C. Espinosa) were employed
by the oppositors and their testimony tends to support the theory that the body of
the will up to the signature of Pablo Roxas was typewritten on a plain sheet of
paper; that the sheet was subsequently removed from the typewriter and signed by
the testator; that the sheet, after being crumpled and folded, was reinserted in the
typewriter for the insertion of the attestation clause which was signed afterwards
by the three attesting witnesses. This expert opinion is based more or less on the
circumstance enumerated in the appealed decision hereinbefore quoted, except
that while the trial court observed that there are "greater penetrations of the ink in
the signature of Pablo M. Roxas," Espinosa and Cabe found that there is greater
diffusion of ink in the signatures of the attesting witnesses.
After a careful examination of the record in the light of the contentions of the
parties, we have no hesitancy in holding that the appealed decision is erroneous.
This case is one in which the will is couched in a language known and spoken by the
testator and the signatures of the three attesting witnesses are admittedly genuine.
Such being the situation, the question that arises, far from requiring the
intervention of experts, is one merely of credibility of witnesses. In our opinion, the
testimony of the three attesting witnesses confirmatory of the due execution of
the will deserves full credit, not only because of their qualifications (hereinbefore
pointed out) but because their reputation for probity has not been impeached. The
fact that they may have some relationship with the petitioner is not sufficient to
warrant the belief that they did not tell the truth. The law, in the first place, does
not bar relatives either of the testator of the heirs or legatees from acting as
witnesses. In the second place, in the normal course of things and to be sure that
the witnesses would not let the beneficiaries down, the testator may be inclined to
employ, as attesting witnesses, relatives of such beneficiaries, if not wholly
disinterested persons. In the third place, under the will, Reynaldo Roxas (adulterous
son of Pablo Roxas) is named a legatee on equal footing with the petitioner, and the
attesting witnesses are not related whatsoever with him. In the fourth place,
whereas the three attesting witnesses have no direct interest in the subject matter
of the will, oppositor Maria Roxas, like the other oppositor Pedro Roxas, is an
intestate heir of Pablo Roxas and, therefore, naturally interested in having the
probate of said will disallowed.lawphil.net
Ordinarily, the findings of fact of a trial court, because of the benefit of having seen
and heard the witnesses, are entitled to great weight. But, in this case, the lower
court relied on the conclusions of experts, and this is obvious from (1) its recital of
the circumstances that led it to believe that the will was not executed in accordance
with law, and (2) its failure to analyze the oral evidence.
It is alleged that the testator had another adulterous child (Aida), sister of Reynaldo,
and it is unnatural that he would have failed to provide for said child, if not for his
brother and sister (herein oppositors) in the will, if the testator really intended to
dispose of his properties under said will. This is again a mere conjecture which
should not prevail over the testimony of the attesting witnesses, not to mention the
fact that there is nothing in the record to show conclusively that the testator ever
admitted that Aida is another adulterous child, coupled with the circumstance that
the latter did not live with the testator. As to the omission of the herein oppositors,
there might have been a reason known only to the testator why they should be
excluded, or why they need no participation.
That the will in question was written on poor kind of stationery, or that it was not
prepared by a lawyer or notary public, or that no copies were made, is of no
moment. It should be borne in mind that the will was executed in January, 1945,
when everything was practically in confusion due to the impending battles for the
liberation of the Philippines, and when paper supply was almost exhausted. Aside
from the fact that a will need not be prepared by or acknowledged before a notary
public, it is not improbable that the testator, before the date of the will in question,
had prepared or seen previous wills and therefore was familiar with its wording and
legal formalities, and that due to the abnormal time he undertook to prepare said
will without the aid of a lawyer or notary public and without making copies thereof.
We do not venture to impute bias to the experts introduced during the trial, but we
hasten to state that the positive testimony of the three attesting witnesses ought to
prevail over the expert opinions which cannot be mathematically precise but which,
on the contrary, are "subject to inherent infirmities." In the instant case, it is
significant that while Amadeo M. Cabe observed that four different fountain pens
were used in signing the will, Jose C. Espinosa was unable to determine whether the
same pen was used for all the signatures. Upon the other hand, Prof. H. Otley Beyer
believes that one pen was used for the testator's signature, and another pen for the
signatures of the witnesses.
Too much emphasis and effort, through experts Cabe and Espinosa, had been
placed on the supposition that after the body of the will had been typewritten, the
sheet was removed from the machine and, after having been folded and crumpled,
it was replaced in the typewriter for the insertion of the attestation clause. The law
does not require that the will should be written in one continuous act; and the
supposition does not necessarily, much less conclusively, prove that the signing was
not done on one occasion. For the difference in the ink diffusions and penetrations
between the signatures of the testator and those of the three attesting witnesses
may not be due solely to the folding and crumpling of the sheet on which the will is
written, but on such other factors as class of ink, class of pens, habit of writing,
condition of paper, and the use of blotter. Speculations on these matters should
give way to the positive declarations of the attesting witnesses. The law impliedly
recognizes the almost conclusive weight of the testimony of attesting witnesses
when it provides that "if the will is contested, all the subscribing witnesses present
in the Philippines and not insane, must be produced and examined, and the death,
absence, or insanity of any of them must be satisfactorily shown to the court."
(Section 11, Rule 77, Rules of Court.)
The contention made by the appellees in their opposition that the will was revoked
by the testator when he crumpled the same, requires no serious consideration, in
view of their failure to show that the crumpling was caused with the intention to
revoke. Appellees' reference to other formal defects of the will (other than that
hereinbefore disposed of) also needs no inquiry, because it is not pressed herein.
Wherefore, the appealed judgment is reversed and the will in question is hereby
declared probated. So ordered, with costs against the appellees.
Separate Opinions
MONTEMAYOR, J., dissenting:
It is a matter of deep regret to me that I have to disagree with my colleagues who
signed the learned opinion penned by Mr. Justice Paras. But fully convinced of the
correctness of the findings of the trial court based on the evidence on record, I am
constrained to dissent and to give my reasons for doing so.
To the statement of facts made in the majority opinion, I would like to add other
undisputed facts which I believe are not only pertinent but may also shed additional
light and throw decisive weight in the correct determination of this case. It is a fact
testified to not only by Maria Roxas for the oppositors but partly and substantially
corroborated by Natividad Icasiano, the petitioner and her witness, Remedios
Logroo, that besides Reynaldo Roxas, the deceased Pablo Roxas had another
illegitimate child by his mistress Remedios Logroo, a daughter named Aida, a few
years younger than Reynaldo, who remained in the custody of her mother. As to
Reynaldo, when a little over a year old he was taken to the marital home of Pablo
Roxas and his wife Natividad Icasiano in the year 1940, to live with them because
they had no children of their own. Pablo not only failed to tell his wife that
Reynaldo was his own son, fruit of adulterous relations with Remedios, but he
falsely told his wife that the boy whose mother was already dead came from an
orphanage. According to Natividad it was only after Pablo's death that she found
out Reynaldo's true paternity.
There are several theories, more or less, plausible as to the intervention of Pablo
Roxas in the preparation of the supposed will, Exhibit D, and what he intended by it.
One of them is that Pablo Roxas did not design Exhibit D as his will. According to
Maria Roxas, her brother Pablo told her on January 1, 1945, when he showed her
Exhibit D with his signature on it but without the attestation clause nor the
signatures of attesting witnesses, that he did not intend said document as his last
will but only to counteract his wife's natural reaction and to calm and assuage her
inevitable feeling of righteous anger and indignation when after his death, she
came as she was bound to know that Reynaldo was his own son by his mistress
Remedios; because if she were led to believe by the document that all his property
would go to her and to Reynaldo in equal portions, his supposed act of liberality
might at least temporarily, induce her to overlook and forgive his infidelity and
prevent her from losing her affection for the boy and sending him away from her.
At first blush, this theory might appear to be farfetched and unreasonable because
husbands do not usually commit such acts of deception on their wives and widows
expect to get away with it. But, let us not forget that Pablo Roxas was not only
capable of but actually succeeded in deceiving his trusting and credulous wife for
about six years, from 1940 until 1946 when he died, leading her to believe that the
child Reynaldo whom he had brought into their home, was a total stranger and an
orphan whom he had gotten from a charitable institution out of pity and to enliven
their childless home. Not only this but during those six years of deception, far from
being a repentant sinner, he continued his illicit and extramarital relations which
resulted in the subsequent birth of another illegitimate child, Aida.
Moreover, it is rather difficult to believe that Pablo Roxas should deliberately
execute a will like Exhibit D wherein he entirely forget his other younger child Aida,
not giving her even a centavo from his considerable estate. The same thing may be
said of his mistress, Remedios Logroo. That he loved Remedios or at least liked
her, there could be no doubt. She was younger than his wife. Not a few marital
troubles, even tragedies have their origin in elderly husbands tiring of their elderly
wives and feeling attracted to and falling for younger women. At least Pablo had
sufficient attachment to and felt enough affection for Remedios so as to forget his
marital vows and cohabit with her for years and let her be the mother of his two
children tho illegitimate.
It should be borne in mind that Pablo Roxas was quite a wealthy man. Considering
the products of his properties alone during his long married life with Natividad,
there must be considerable conjugal property which he left upon his death.
Therefore he must have known that out of the partnership property, alone,
Natividad would be well provided for in her widowhood; and yet under Exhibit D he
would be giving her one-half () of all his exclusive properties, the other half to one
of his two children, and absolutely nothing to his other younger child, to their
mother, and to his only brother and sister, the oppositors herein.
Ordinarily, legacies are made to those who enjoy the affection of the testator and
who in his opinion need the bequest. Pablo Roxas had no legitimate children of his
own and so could do with his estate as he wished, unhampered by legitimates
which may be claimed by forced heirs. It would have been more natural for him to
have bequeathed his estate or a part of it not only to Reynaldo but also to his
daughter Aida and to their mother Remedios Logroo. It would have equally been
more natural for him to have remembered his brother and sister Maria and Pedro,
especially since the bulk of his exclusive properties was a donation from their
common uncle Alejandro Roxas. But as it is, under the supposed will, he forgot and
ignored them all and heaped all his bounty and all his liberality on only one child of
his and on his wife who apparently was in no need of such bounty.
Again, when a person wants to make a will involving a considerable and valuable
estate as is involved in the present case (worth much more than fifty thousand
pesos), to be sure that the instrument is validly prepared in order to insure its
probate, he would avail himself of the services of a lawyer, at least a notary public,
presumed to be versed in such legal matters. The preparation of a will requires
special and accurate legal knowledge so as to comply with the various imperative
requirements of the law. How often have even lawyers themselves overlooked a
small detail required by law, resulting in the rejection of the probate of wills by the
courts. Pablo Roxas was by no means an ignorant man. He had been Mayor of his
town for two terms. He was also a Dentist. He must have realized that a layman
should not recklessly and blithely prepare a will and expect it to conform with all
the requirements of the law and pass the scrutiny of the courts. So, it is to be
reasonably expected that if he really wanted to execute a will, he would have had it
prepared by a lawyer or a notary public. Besides, realizing that it was an important
document, he would have had copies of it made and kept in different places so that
if the original by accident or force majeure was lost or destroyed, his wishes about
the disposition of his property after his death would not be frustrated. But as it is,
the parties are agreed that Pablo Roxas himself prepared and typed the body of
Exhibit D, without the benefit of legal advice and without making copies, and
afterwards allowed it to be folded, not once but several times, and otherwise
crumpled.
The foregoing considerations are in support of the theory that Pablo Roxas did not
intend to make a will. A corollary theory is that after signing the body of Exhibit D,
and without the attestation clause, he gave it to his wife Natividad. After his death,
Natividad and her relatives believing that Pablo really intended Exhibit D as his will,
but finding it to be incomplete proceeded to add the attestation clause, and the
attesting witnesses being convinced that the signature of Pablo Roxas on it was
genuine and to carry out what they thought to be the wishes and will of the
deceased, in good faith signed the attestation clause, believing that by so doing
they were merely certifying that the signature was that of Pablo Roxas. It is of
course unnecessary to state that under this theory, Exhibit D may not be allowed
probate.
The theory entertained and contended for by the petitioner is that Pablo Roxas
really intended to make a will. That he prepared and typewrote the body of Exhibit
D, is not disputed. But it is a fact equally undisputed that as Exhibit D now appears,
it was made irregularly and in violation of all the rules of uniformity, symmetry and
continuity. The body of the instrument is typewritten double spaced, and with the
signature of Pablo Roxas, it fairly occupies the middle of the page or paper,
considering the space or margin left above and below. Symmetry was observed.
Then the attestation clause was added, not with the same double spacing but in
single space, thereby destroying uniformity in spacing. Furthermore, the clause is
crowded into the remaining space below, and despite the single spacing to save
room it almost reaches the bottom of the page, hardly leaving enough space for the
signatures of the witnesses. Symmetry is thus sacrificed. What is more, and this is
important, the vertical and horizontal alignment of the left margin and the lines of
the attestation clause do not coincide with those of the body of Exhibit D.
Moreover, the types of the letters in the attestation clause are lighter than those in
the body of the instrument, indicating a different hand with a lighter touch on the
keys. In addition, we notice and find that some letters on the body of the
instrument are blurred, especially letter "O", whereas the same letters in the
attestation clause are clear, showing that the attestation clause was typewritten
after the types of the machine had been cleaned and brushed of accumulated dirt.
All this leads to the logical conclusion and the finding that after the body of Exhibit
D was typewritten, it was removed from the typewriter; that later, perhaps much
later, the types of the machine were cleaned and brushed and the same paper,
Exhibit D, was re-inserted and the attestation clause typewritten by another hand,
not Pablo Roxas who typewrote the body. Furthermore, and this is equally
important, while the crevices and folds in the paper on the body of Exhibit D bear
and show the ink of the letters typed on them, indicative of the body having been
typed when the paper was still smooth, unfolded and uncrumpled, on the other
hand the ink in some letters in the attestation clause, especially the letter "a" in the
word "sa", as more graphically demonstrated in the photographic enlargement, did
not penetrate and reach the crevices and folds in the paper caused by the folding or
the crumpling, equally indicating that the attestation clause was typed after the
paper had been folded and crumpled, perhaps long after the typing of the body of
Exhibit D.
Then, we come to the more important detail. The ink lines in the signature of Pablo
Roxas are clear and distinct and well-defined even when those ink lines meet the
folds or crumplings or breaks in the paper. On the other hand, in the signatures of
the attesting witnesses, where the ink lines meet those same vertical folds, breaks
and crumplings, said ink lines have spread out and become not well defined
because of the diffusion of the ink. This is revealed by the photographic
enlargement and even to the naked eye. All this goes to show according not only to
the expert testimony but also our own every day experience and observation that
when Pablo Roxas signed Exhibit D, it was still unfolded and uncrumpled, and the
surface and texture of the paper still smooth, undisturbed and unbroken, while at
the time that the attesting witnesses affixed their signatures, the paper had already
been folded and crumpled as shown by the diffusion of the ink which had gone in
and crept and spread out into the crevices and breaks in the paper.
Professor Beyer who was presented as expert witness by the petitioner admitted
the possibility that judging from the lighter impression or type of the letters of the
attestation clause, said clause may have been typewritten by a hand other than the
one which typewrote the body. Attempting to explain the diffusions of the ink on
the ink lines on the signatures of the attesting witnesses, he stated that they may
be due to the class or variety of ink used in the signatures, or to a difference in the
texture of the paper itself or the manner in which the signatures are affixed, some
writing with a heavy hand, others with a lighter hand, and whether or not a blotter
was used.
Chemical Engineer Espinosa, an expert introduced by the oppositors, on the basis of
his expert training and knowledge of inks, acquired when he was employed in the
Bureau of Science and placed in charge of the purchase of inks by the Government,
categorically and without contradiction assured the court that the ink used in the
signature of Pablo Roxas and in those of the attesting witnesses was of the same
class or kind, namely, iron nutgall. So, the possibility of a difference in the ink used
may well be ruled out. As to the other possibilities, assuming for a moment that all
the three attesting witnesses signed with a heavy hand and on a portion of Exhibit
D which happened to be porous, and used a blotter, still it is not explained why the
diffusions of the ink on the ink lines of their signatures was not general and all over,
but occur only when said ink lines meet the folds, breaks and crumplings in the
paper.
From the foregoing, and in the assumption that Pablo Roxas really intended to
make a will, we may gather the following inferences which to my mind are
reasonable and logical. Pablo Roxas who, according to undisputed evidence owned
an Underwood typewriter and must have been quite familiar with, if not adept, in
typing ordinary documents but lacking the legal knowledge and training required
for preparing a will, and ignoring the necessity of attesting witnesses, most likely
typewrote the body of Exhibit D from a rough draft he had prepared, and then
signed it. As already stated, the body standing alone, with the signature, occupies
the middle of the page, and perfectly complies with the rules of symmetry and
uniformity in spacing and conforms with the good taste of a good typist. He folded
the document and kept it or else gave it to his wife Natividad to keep. Afterwards,
perhaps long afterwards, he learned or was informed that the will was incomplete
because of the absence of an attestation clause and the signatures of attesting
witnesses. He then had the attestation clause typewritten by someone who knew
the phraseology of such a clause, by re-inserting in the typewriter the paper, Exhibit
D, but after it had already been folded and more or less crumpled. Then, he
proceeded to locate the three attesting witnesses, told them that he had executed
a will and wanted them to attest to it. These witnesses either being familiar with his
signature or being assured by him that the signature above the typewritten name
"Pablo Roxas" was his, readily signed the attestation clause either together on the
same occasion or singly on different occasions as he found them. On the basis of
our every day observation and experience, this signing by witnesses of clauses and
certificates attesting to the signature of a person signing the body of a document,
without actually seeing him sign, is nothing strange or unusual. Not infrequently, we
see a deed of sale or mortgage prepared by or on behalf of the parties, signed by
them and later taken to a notary public for acknowledgment, and the notary public
more often than not, upon being assured that the document expresses the wishes
and true intent of the parties, makes out and signs his certificate to the effect that
the parties or at least the party conveying the land or assuming the encumbrance
was known to him and had appeared before him, signed and executed the
document and had given the assurance that the conveyance or the assumption of
the obligation was his free act and deed, when as a matter of fact, said party may
never have appeared before the said notary, may not be known to him personally,
much less, had given the assurance already mentioned. How often judicial officers
and officials authorized to administer oaths have placed on affidavits their
certificates to the effect that the affiants had been sworn and afterwards signed the
affidavit in his (official's) presence, when in fact the affiant had never taken the
oath, and the affidavit had been prepared and signed somewhere else and all the
intervention of the official was to ask the affiant if the signature or the affidavit was
his, and the contents are true and made voluntarily and without the use of force.
The signing of the attestation clause by three attesting witnesses in this case may
have been done following this quite usual and ordinary practice and all in good
faith. Under this theory, it is quite clear that Exhibit D was not duly attested to
under the law which expressly requires that the testator sign in the presence of the
attesting witnesses and that said witnesses sign in the presence of the testator and
in the presence of each other.
But there is even reason to believe that under the last aforementioned theory the
attesting witnesses were not together on the same occasion and could not have
signed in the presence of the testator and of each other. Assuming that Pablo Roxas
had selected the three attesting witnesses to sign the attestation clause, it is hard
to believe that all said witnesses could have been found by him in the same house
and the same minute without any previous concert or arrangement. Pablo Roxas
was then living in the barrio of Taliptip while the house where he was supposed to
have found them was in a different barrio. All the three attesting witnesses assured
the court that they did not know that Pablo Roxas had executed a will and that they
were going to be witnesses thereto. His finding them there in that house and their
being all together at the same time was according to them, a pure coincidence, and
to me, too much of a coincidence, to merit belief. Ordinarily, when a testator
executes a will he notifies his witnesses long in advance to insure attendance and
then sends for them to come to his house. The execution of such a document is a
solemn occasion, done only once in a lifetime. A testator does not usually go out,
carrying his will, hunting for witnesses. But here, without any previous notification
or agreement, Pablo leaves his barrio, goes to the barrio of Sta. Ana and there in
one house, strangely enough, finds his three selected witnesses all ready for the
signing. And All this in spite of the fact as shown by the evidence for the oppositors
that in his own barrio of Taliptip Pablo had other friends of his own confidence, and
naturally that of his family, who could well have been utilized as attesting witnesses
so as to save him the trouble and the hazard of making a trip of 4 kilometers to
Sta. Ana, in a horsedrawn vehicle, with a stream spanned by a destroyed bridge to
negotiate. It is a story that requires considerable effort to believe.
There is another detail which though apparently of little import, nevertheless may
merit consideration. While the body of the document, Exhibit D, bears the date
January 1, 1945, when Pablo Roxas signed it, the attestation clause has no date,
neither does it make reference to the date appearing on the body. Almost
invariably, an attestation clause is made to bear a date, the same day that appears
on the body of the will when the testator signed it, or else the clause makes
reference to said date on the body of the will. At least that is the standard form as
may be gathered from books on the subject such as Jones Legal Forms Annotated,
ninth ed., pp. 2069-2071, Fisher's Legal and Business Forms, 1948 ed., pp. 436, 437,
including Modern Philippine Legal Forms, Vol. II, pp. 1146-1147, by Taada, and
Rodrigo, the latter being one of the attorneys for the petitioner-appellant. But why
the absence of a date on the attestation clause on Exhibit D, or at least a reference
to the date on the body? Was it a mere oversight, or was it because the witnesses
actually signed on a day later than January 1, 1945, when Pablo Roxas signed the
will, and said witnesses could not in conscience state on the attestation clause that
they all signed it on January 1, 1945?
The majority opinion asserts that the best evidence as to the due execution of a will
is the testimony of the attesting witnesses, and that their testimony on this point is
practically conclusive. This may be true when there is no opposition to the probate
of the will. But when the probate is opposed, evidence in the form of oral testimony
to disprove the alleged due execution of the will, is of course admissible and the
testimony of witnesses for the opposition is just as competent, and if worthy and
credible can match, even outweigh that of the attesting witnesses. Otherwise, if
with the testimony of attesting witnesses to a will we are going to disregard and
ignore any other evidence about the due execution of the instrument, then we
would be opening wide the door to the commission of fraud or forgery in the
execution and probate of this all-important instrument. An instituted heir or a
legatee in a forged will could then get three of his friends to sign the attestation
clause, and if the three later testified in court that the supposed testator signed the
instrument in their presence and that they signed in his presence and in the
presence of each other, then the rightful heirs would forever be precluded from
proving the forgery and asserting their rights in the inheritance.
The testimony of attesting witnesses to a will may be overcome by any competent
evidence. . . . Such evidence may be direct, or it may be circumstantial; and expert
and opinion evidence is just as competent as any other evidence. . . . The rule
contended for by appellants would frequently baffle justice and give judicial
countenance to many a high-handed fraud. Opinion by Mr. Justice Dawson in Baird
vs. Shaffer, 101 Kan., 535; 163 Pacific, 836 (1917).
Sometimes, the condition and physical appearance of a document are not only
competent evidence by they constitute a valuable factor which if correctly
considered and evaluated in the light of surrounding circumstances, can greatly
help the court in determining whether said document is genuine or forged.
Animated witnesses may forget or may exaggerate or understate what they know,
saw or heard or what they did. They may be biased and depart from the truth or
state half-truths to mislead and court in order to favor one party and prejudice
another. Not so with silent witnesses such as surrounding circumstances and facts
found on the paper or object itself. Such mute witnesses play no favorites. If
correctly understood and interpreted, they show and reveal the whole truth, in all
its nakedness, hiding nothing, forgetting nothing and without prejudice or mental
reservation.
The majority opinion says that the determination of this case in great measure
hinges upon the credibility of the witnesses. To this, I heartily agree. The trouble is
that for no valid reason that I can see, the majority completely ignored the findings
of the trial judge, the same official who presided over all the hearings and saw all
the witnesses testify and observed their demeanor in court and was in a better
position to assess the credit which each witness merits and the weight to be given
his testimony; the same judicial officer who questioned and cross-examined the
witnesses including the experts and even looked in the stereoscopic microscope to
carefully observe the enlargements and magnifications of the portions of Exhibit D,
made by experts for the opposition. That party even made an offer to bring the
stereoscopic microscope to this court so that the members of this tribunal through
personal observation and with the aid of scientific facilities could see for themselves
the folds, crumplings, types, signatures and ink lines on Exhibit D, which offer,
unhappily had not been accepted. It seems that it was the oppositors who have
offered all the opportunities and mechanical facilities to the trial court and to this
tribunal with a view to a correct determination of how and when the typing and
signing of the body and the attestation clause of Exhibit D was done.
I am afraid that the majority had unwittingly been unduly impressed by the
testimony of the three attesting witnesses because of their qualifications. Says the
majority opinion on this point:
In our opinion, the testimony of the three attesting witnesses confirmatory of
the due execution of the will deserves full credit, not only because of their
qualifications (hereinbefore pointed out) but because their reputation for probity
has not been impeached.
Said qualifications are listed and described in detail in the majority opinion which I
quote:
Fortunato A. Gupit is a certified public accountant. He is the dean of the College of
Business Administration and the comptroller of the Arellano University. Jacinto Y.
Enriquez comes from a distinguished family in Bulacan and is a student in the
University of Santo Tomas. Martin Rodrigo is a businessman and landowner. Gupit
is the husband of a half-sister of the petitioner; Enriquez is a second cousin of
petitioner; and Rodrigo is the husband of a deceased cousin of the petitioner.
assuming that Pablo Roxas intended to make a will, because of his ignorance of
legal requirements and technicalities, in preparing the body of Exhibit D, which he
signed, he left out the attestation clause and when informed of the necessity of said
clause, he had Exhibit D re-inserted in the typewriter and the attestation clause
typed by someone else, and thereafter, perhaps long after, he asked and had the
attesting witnesses sign said clause either singly on different occasions or on one
simple occasion, but naturally, without those witnesses having been present when
he (Pablo Roxas) signed the body of Exhibit D. Clearly, to my mind, the
requirements of the law on wills has not been duly complied with. I believe that the
decision appealed from should be affirmed.
Moran, C.J., Pablo, and Reyes, JJ., concur.

But I understand that up to the present, the courts in this jurisdiction are still
weighing the testimony of witnesses on the scales of sincerity, truth, and honesty
rather than an academic attainments, college degrees and social prominence.
Otherwise, a party in court whose witnesses happen to be simple, ignorant but
honest farmers and laborers occupying the bottom of the social scale, who have not
seen the inside of a barrio school, has absolutely no chance or show against the
adverse party who may produce witnesses with college or university degrees and
members of the aristocracy, whose names appear on the social register. I have
nothing against the witnesses to the supposed will, Exhibit D. They may have
testified sincerely and truthfully according to their lights. But I submit that the
unknown and perhaps unlettered witnesses for the oppositors, with no social or
academic background to boast of could be just as sincere and truthful. At least, the
trial court had nothing to say against their testimony while at the same time, it gave
no credit to the testimony of the witnesses for the petitioner as to the due
execution of the will. It has been and is still the practice and rule in appellate courts
to respect the findings of a trial judge who has had an opportunity to observe the
witnesses on the witness stand and to evaluate their testimony, unless there
appears in the record some fact or circumstance of weight and influence which has
been overlooked or the significance of which has been misinterpreted. 1 I see
nothing in record to warrant us in disturbing the findings of the trial court.

In conclusion, I am of the opinion that Pablo Roxas either did not intend to make
Exhibit D his will for the reason that if he did, he would have availed himself of the
services of one who knew how to draft a will, made copies thereof, and bequeathed
his estate not only to his child Reynaldo and his widow but also to his other child
Aida, the mother of said two children, and perhaps to his own brother or sister; or,
G.R. No. 17714 May 31, 1922

In the mater of the estate of Jesus de Leon.

IGNACIA DIAZ, petitioner-appellant,
vs. ANA DE LEON, opponent-appellee.

ROMUALDEZ, J.:

The only question raised in this case is whether or to the will executed by Jesus de
Leon, now, was revoked by him.

The petitioner denies such revocation, while the contestant affirms the same by
alleging that the testator revoked his will by destroying it, and by executing another
will expressly revoking the former.

We find that the second will Exhibit 1 executed by the deceased is not cloth with all
the necessary requisites to constitute a sufficient revocation.

But according to the statute governing the subject in this jurisdiction, the
destruction of a will animo revocandi constitutes, in itself, a sufficient revocation.
(Sec. 623, Code of Civil Procedure.)lvvph1n+

From the evidence submitted in this case, it appears that the testator, shortly after
the execution of the first will in question, asked that the same be returned to him.
The instrument was returned to the testator who ordered his servant to tear the
document. This was done in his presence and before a nurse who testified to this
effect. After some time, the testator, being asked by Dr. Cornelio Mapa about the
will, said that it had been destroyed.

The intention of revoking the will is manifest from the established fact that the
testator was anxious to withdraw or change the provisions he had made in his first
will. This fact is disclosed by the testator's own statements to the witnesses Canto
and the Mother Superior of the Hospital where he was confined.

The original will herein presented for probate having been destroyed with animo
revocandi, cannot now be probated as the will and last testament of Jesus de Leon.

Judgement is affirmed with costs against the petitioner. So ordered.

G.R. No. L-26317 January 29, 1927
Estate of Miguel Mamuyac, deceased.
FRANCISCO GAGO, petitioner-appellant,
vs.
CORNELIO MAMUYAC, AMBROSIO LARIOSA,
FELICIANA BAUZON, and CATALINA MAMUYAC, opponents-appellees.
Nicanor Tavora for appellant.
Jose Rivera for appellees.
JOHNSON, J.:
The purpose of this action was to obtain the probation of a last will and testament
of Miguel Mamuyac, who died on the 2d day of January, 1922, in the municipality of
Agoo of the Province of La Union. It appears from the record that on or about the
27th day of July, 1918, the said Miguel Mamuyac executed a last will and testament
(Exhibit A). In the month of January, 1922, the said Francisco Gago presented a
petition in the Court of First Instance of the Province of La Union for the probation
of that will. The probation of the same was opposed by Cornelio Mamuyac,
Ambrosio Lariosa, Feliciana Bauzon, and Catalina Mamuyac (civil cause No. 1144,
Province of La Union). After hearing all of the parties the petition for the probation
of said will was denied by the Honorable C. M. Villareal on the 2d day of November,
1923, upon the ground that the deceased had on the 16th day of April, 1919,
executed a new will and testament.
On the 21st day of February, 1925, the present action was commenced. Its purpose
was to secure the probation of the said will of the 16th day of April, 1919 (Exhibit
1). To said petition Cornelio Mamuyac, Ambrosio Lariosa, Feliciana Bauzon, and
Catalina Mamuyac presented their oppositions, alleging (a) that the said will is a
copy of the second will and testament executed by the said Miguel Mamuyac; (b)
that the same had been cancelled and revoked during the lifetime of Miguel
Mamuyac and (c) that the said will was not the last will and testament of the
deceased Miguel Mamuyac.
Upon the issue thus presented, the Honorable Anastacio R. Teodoro, judge, after
hearing the respective parties, denied the probation of said will of April 16, 1919,
upon the ground that the same had been cancelled and revoked in the year 1920.
Judge Teodoro, after examining the evidence adduced, found that the following
facts had been satisfactorily proved:
That Exhibit A is a mere carbon of its original which remained in the possession of
the deceased testator Miguel Mamuyac, who revoked it before his death as per
testimony of witness Jose Fenoy, who typed the will of the testator on April 16,
1919, and Carlos Bejar, who saw on December 30, 1920, the original Exhibit A (will
of 1919) actually cancelled by the testator Miguel Mamuyac, who assured Carlos
Bejar that inasmuch as he had sold him a house and the land where the house was
built, he had to cancel it (the will of 1919), executing thereby a new testament.
Narcisa Gago in a way corroborates the testimony of Jose Fenoy, admitting that the
will executed by the deceased (Miguel Mamuyac) in 1919 was found in the
possession of father Miguel Mamuyac. The opponents have successfully established
the fact that father Miguel Mamuyac had executed in 1920 another will. The same
Narcisa Gago, the sister of the deceased, who was living in the house with him,
when cross-examined by attorney for the opponents, testified that the original
Exhibit A could not be found. For the foregoing consideration and for the reason
that the original of Exhibit A has been cancelled by the deceased father Miguel
Mamuyac, the court disallows the probate of Exhibit A for the applicant." From that
order the petitioner appealed.
The appellant contends that the lower court committed an error in not finding from
the evidence that the will in question had been executed with all the formalities
required by the law; that the same had been revoked and cancelled in 1920 before
his death; that the said will was a mere carbon copy and that the oppositors were
not estopped from alleging that fact.
With reference to the said cancellation, it may be stated that there is positive proof,
not denied, which was accepted by the lower court, that will in question had been
cancelled in 1920. The law does not require any evidence of the revocation or
cancellation of a will to be preserved. It therefore becomes difficult at times to
prove the revocation or cancellation of wills. The fact that such cancellation or
revocation has taken place must either remain unproved of be inferred from
evidence showing that after due search the original will cannot be found. Where a
will which cannot be found is shown to have been in the possession of the testator,
when last seen, the presumption is, in the absence of other competent evidence,
that the same was cancelled or destroyed. The same presumption arises where it is
shown that the testator had ready access to the will and it cannot be found after his
death. It will not be presumed that such will has been destroyed by any other
person without the knowledge or authority of the testator. The force of the
presumption of cancellation or revocation by the testator, while varying greatly,
being weak or strong according to the circumstances, is never conclusive, but may
be overcome by proof that the will was not destroyed by the testator with intent to
revoke it.
In view of the fat that the original will of 1919 could not be found after the death of
the testator Miguel Mamuyac and in view of the positive proof that the same had
been cancelled, we are forced to the conclusion that the conclusions of the lower
court are in accordance with the weight of the evidence. In a proceeding to probate
a will the burden of proofs is upon the proponent clearly to establish not only its
execution but its existence. Having proved its execution by the proponents, the
burden is on the contestant to show that it has been revoked. In a great majority of
instances in which wills are destroyed for the purpose of revoking them there is no
witness to the act of cancellation or destruction and all evidence of its cancellation
perishes with the testator. Copies of wills should be admitted by the courts with
great caution. When it is proven, however, by proper testimony that a will was
executed in duplicate and each copy was executed with all the formalities and
requirements of the law, then the duplicate may be admitted in evidence when it is
made to appear that the original has been lost and was not cancelled or destroyed
by the testator. (Borromeo vs. Casquijo, G.R. No. L-26063.)1

After a careful examination of the entire record, we are fully persuaded that the will
presented for probate had been cancelled by the testator in 1920. Therefore the
judgment appealed from is hereby affirmed. And without any finding as to costs, it
is so ordered.
G.R. No. L-47305 July 31, 1942
In the matter of the estate of Rufina Arevalo. ARISTON
BUSTAMANTE, administrator-appellant,
vs. PETRONA AREVALO, ET AL., oppositors-appellees.
BOCOBO, J.:
The main issue in this case is whether or not Exhibit C, presented by appellant for
allowance as the last will and testament of the deceased Rufina Arevalo, is a
forgery. The Court of First Instance of Manila held that it was a forged document,
and allowed an earlier will, Exhibit 6, whose authenticity was unquestioned. The
value of the estate is over P50,000.
The questioned document was prepared and signed in duplicate. It consists of two
pages and is dated October 2, 1937. It appears to be signed by Rufina Arevalo and
by three witnesses, Manuel M. Cruz, Remigo Colina and Angel Sanchez. The formal
requisites of a will have been complied with.
An initial fact that arrests the attention is the formulation by the appellees of the
allegation of forgery even before seeing the questioned document. Said charge of
forgery was signed on April 22, 1938, although Exhibit C, which had been in a sealed
envelop, was not opened by order of the court till the next day, April 23, 1938. It is
true that the opposition by the appellees was not actually filed in court till April 23,
but it was signed by appellees' attorneys on April 22, was subscribed and sworn to
by Amando Clemente on April 22, and a copy thereof was sent by registered mail to
Attorney Nicasio Yatco on April 22. Moreover, in the morning of April 23, appellees
attorneys Messrs. Jose Belmonte and Vicente Delgado, announced their opposition
to the will Exhibit C in open court, before said documents was opened by order of
the court on that day.
One of the principal reasons of the court a quo for believing Exhibit C to be a
forgery is that in the genuine signatures the terminal stroke of the capital "R" in
"Rufina" is not joined with the letter "u," while in Exhibit C such ending is united
with the letter "u" in the two marginal signatures, although in the central signature
appearing on page 2, the two letters are separated. The probate court believes that
this difference between the marginal and the central signatures is due to the fact
that the forger first used the check of "La Previsora" (Exhibit I) as the model in
falsifying the marginal signatures, but having been shown another signature with
the characteristic already mentioned separation of the two letters he tried to
imitate said peculiarity in making central signature.
We believe the probate court over looked the well-established principle that in
passing upon questioned documents, the test is the general character of the writing
rather than any minute and precise comparison of individual letters or lines.
In People vs. Bustos (45 Phil., 30) , this Court held:
It is a first principle in writing that exact coincidence between two signatures is
absolute proof that one or the other is a forgery. There must be some different
before authenticity reposes upon a general characteristics resemblance, coupled
with specific differences, such as naturally result from the infinite variety of
conditions controlling the muscles of the writer at each separate effort in forming
his signature.
(Emphasis supplied.)
In the present case, a careful scrutiny of all the questioned and the standard
signatures has convinced us that they have been written by the same person
because they show the same general type, quality and characteristics, with natural
variations. We are, therefore, inclined to give credence to the expert testimony to
that effect presented by the appellant.
Moreover, a forger who has to make two or more signatures usually sees to it that
all the signatures are uniform for fear that any difference might arouse suspicion. In
this case, however, in some questioned signatures the letters "R" and "u" are
separated, but in others, they are united. Osborne in "Questioned Documents" (pp.
368, 369) says:
Another indication of genuineness in a holographic document or a considerable
amount of writing, or in two or more disputed signatures, are certain natural
variations in the details of the writing. It is difficult for the inexperienced or
unthinking examiner to understand that a certain extent of variation in a group of
several signatures and variation in repeated words and letters in a continuous
holographic document can be evidence of genuineness. The forger does not
understand this necessity for natural variation and, as nearly as he can, makes
words and letters just alike.
xxx xxx xxx
It necessarily follows, therefore, that if the several lines of a disputed document,
or several signatures under investigation, show these natural variations of writing of
the same word or letter, all of course within the scope of variation of the genuine
writing, this variation itself, surprising and paradoxical as it may appear, is as strong
evidence of genuineness as the opposite condition is evidence of forgery. (Emphasis
supplied.)
Furthermore, it is to be noted that the document in question was prepared and
signed in duplicate, so that there are six signatures of Rufina Arevalo, instead of
only three. It is reasonable to believe that a forger would reduce the number of
signatures to be forged so as to lessen the danger of detection. In this case,
Attorney Nicasio Yatco, who supervised the execution of Exhibit C, must have
known that it was not necessary to make a signed duplicate of the will.
As for the probate court's opinion that the forger must have used Exhibit I (a check
issued by "La Previsora" to Rufina Arevalo) as a model in falsifying the marginal
signatures, it is highly improbable that said check was in the hands of Rufina
Arevalo or of her attorney, Nicasio Yatco, on or about October 2, 1937, when the
document in question was signed. The check had been issued on June 30, 1936, or
over a year before, and it must have been returned by the bank concerned to "La
Previsora" in the ordinary course of business, because it was produced by the
Manager of "La Previsora." It should likewise be observed that the signature on the
first page of the duplicate will (Exhibit C-3) does not have the supposed peculiarity
of the standard signatures, that is the separation between "R" and "u." If, as the
lower court states, the forger upon being shown a model other than Exhibit I,
imitated said characteristic separation in making the central or body signature on
the original will Exhibit C, it is indeed strange that he should not do the same
immediately thereafter on the first page of the duplicate will but that he should,
instead, repeat the mistake he had made on the marginal signatures on the original
will.
Finally, to conclude that a forgery has been committed, the evidence should be
forcefully persuasive. Before we are disposed to find that an attorney-at-law has so
debased himself as to aid and abet the forgery of a will, which would not only send
him to jail for many years but would ruin his future, we must require proof
sufficiently strong to prevail against every fair and thoughtful hesitancy and doubt.
And the instrumental witnesses have testified that Rufina Arevalo signed the will in
their presence. It is hard to believe they would commit perjury as it has not been
shown they had any interest in this case.
Therefore, we find that the will of Rufina Arevalo, dated October 2, 1937 and
marked Exhibit C, is genuine and should be allowed.
It is unnecessary to discuss the incidental issues of fact so ably presented by counsel
and examined in detail by the probate court, inasmuch as the foregoing disposes of
the basic question raised. The relative position of the contending devisees in the
affection of the deceased; whether Rufina Arevalo could go alone to the law office
of Attorney Yatco on October 2, 1937 to sign the will Exhibit C; the alleged
resentment of the testatrix toward Amando Clemente when she signed the second
will, and similar questions are not of sufficient significance to alter the conclusion
herein arrived at. In fact, they merely tend to becloud the main issue.
The next question to be inquired into is whether or not the later will (Exhibit C)
dated October 2, 1937, whose probate is herein approved, has entirely revoked the
earlier will, Exhibit 6, dated January 9, 1936. Though both partes admit that the first
will has been revoked by the second, yet we deem it necessary to discuss the
question because a member of this Court thinks the earlier will can stand in part. It
appears that the undivided interest of Rufina Arevalo in two parcels of land and the
improvements thereon which belonged to the conjugal partnership between
Bernabe Bustamante, who had died before the making of the two wills, and Rufina
Arevalo, was expressly devised to Amando Clemente in the earlier will but was not
specifically mentioned in the later will. In the first will, Exhibit 6, Rufina Arevalo,
who had no forcible heirs, gave to Ariston Bustamante, her nephew, three lots and
the buildings thereon; devised a parcel of land and the houses standing thereon to
her cousin, Petrona Arevalo Viuda de Zacarias, and to her niece, Carmen Papa de
Delgado; and finally disposed, in favor of Amando Clemente, another cousin, of a
piece of land and the houses thereon, and of her undivided interest in the two
parcels of land and the improvements thereon, which belonged to the conjugal
partnership, also making said Amando Clemente the residuary legatee. But in the
second will, Exhibit C, she designates Ariston Bustamante her only heir in these
terms:
Segundo Nombro como mi unico heredero, Ariston Bustamante, de todas mis
propiedades dejadas ya mueble o inmueble que se describen mas abajo:
(a) Original Certificate of Title of Manila No. 5059
(b) Original Certificate of Title of Manila No. 4681
(c) Transfer Certificate of Title of Manila No. 19961
(d) Original Certificate of Title of Manila No. 5066
(e) Original Certificate of Title of Manila No. 4682.
Her undivided interest in the two pieces of land of the conjugal partnership, with
Torrens titles No. 4887 and No. 15628, devised to Amando Clemente in the earlier
will, is not specifically mentioned in the later will, Exhibit C. Moreover, the second
will has no revocation clause.
At first sight, it would seem that the earlier will can stand with respect to Rufina
Arevalo's share in said two parcels of land belonging to the conjugal partnership.
But a closer examination of the later will counter-acts such initial reaction.
In the first place, the testatrix in the second will names Ariston Bustamante her only
heir to all her property, both personal and real, her words in Spanish being:
"Nombro como mi unico heredero, Ariston Bustamante, de todas mis
propiedades dejadas ya mueble o inmueble." (Italics supplied.) It is true that in
enumerating her parcels of land, she did not specify her interest in the two lots of
the conjugal partnership. But this omission must have been due either to an
oversight or to the belief that it was premature to name said two parcels as the
conjugal partnership was still being liquidated. In either case, the testatrix must
have thought that her comprehensive words "mi unico heredero de todas mis
propiedades dejadas ya mueble o inmueble" would be sufficient to cover all her
property, whether specially listed or not.
Secondly, in the opening paragraph of the second will, the following words appear:
"hago constar a todos este mi ultimo testamento y voluntad expresado en
Castellano lenguaje que conozco y poseo, y queriendo disponer de mis bienes por
virtud de este mi testamento." (Emphasis supplied.) Though she knew that she had
made a first will, she nevertheless said that the second will was her last one. This
would seem to signify that her last will, cancelling her previously expressed wish,
was to make Ariston Bustamante her only heir. Furthermore, when she said she
wanted to dispose of her property by means of the second will ("queriendo
disponer de mis bienes por virtud de este mi testamento"), it would appear to be
her intention that no property of hers should be left undisposed of in the second
will. This fact is corroborated in the second clause wherein she names Ariston
Bustamante as her only heir to all her property whether personal or real.
We believe, therefore, that the first will has been entirely revoked. Though it might
appear right that Amando Clemente should receive something from the estate
because he, together with Ariston Bustamante, has been raised by the testatrix, and
both are her relatives, nevertheless it would be venturesome for us to advance our
own idea of a just distribution of the property in the face of a different mode of
disposition so clearly expressed by the testatrix in the later will. As she had no
forcible heirs, she was absolutely free to give her estate to whomsoever she
choose, subject of course to the payment of her debts. It would be a dangerous
precedent to strain the interpretation of a will in order to effect what the court
believes to be an equitable division of the estate of a deceased person. The only
function of the courts in these cases is to carry out the intention of the deceased as
manifested in the will. Once that intention has been determined through a careful
reading of the will or wills, and provided the law on legitimes has not been violated,
it is beyond the pale of judicial cognizance to inquire into the fairness or unfairness
of any devise or bequest. It might be said that it is hard to understand how, in a
temporary anger at Amando Clemente, the testatrix would entirely cut him off from
the inheritance. We should not, however, sit in judgment upon her motives and
sentiments, first because, as already stated, nothing in the law restrained her from
disposing of her property in any manner she desired, and secondly, because there
are no adequate means of ascertaining the inward processes of her conscience. She
was the sole judge of her own attitude toward those who expected her bounty.
In view of the foregoing, the decision appealed from, declaring the second will
Exhibit C a forgery and allowing the first will Exhibit 6, should be and is hereby
reversed, and another judgment shall be entered allowing the later will Exhibit C,
which has entirely revoked the earlier will Exhibit 6. No special pronouncement on
costs is made. Let the record of this case be returned to the court of origin for
further proceedings. So ordered.
Yulo, C.J. and Moran, J., concur.
Separate Opinions
OZAETA, J., concurring:
I concur in the finding that the will Exhibit C is genuine. I think, however, that the
discussion in the majority opinion of whether or not said Exhibit C entirely revoked
the previous will Exhibit 6 is unnecessary, inasmuch as both parties in their brief
have admitted the affirmative. There being no controversy between the parties on
that score, there seems to be no occasion for the Court to render an opinion
thereon.
PARAS, J., concurring and dissenting:
The testatrix in this case executed two wills, one on January 9, 1936, and the other
on October 2, 1937. In the first will, the testatrix specifically referred to seven
parcels of land of considerable value and to certain personal properties. Three of
these parcels of land and all the personal properties are given to Amando
Clemente, another three to Ariston Bustamante, and the seventh parcel to Petrona
Arevalo and Carmen Papa. In the second will, the testatrix particularly referred to
only five parcels of land and certain personal properties, all of which are give to
Ariston Bustamante, as her universal heir. The second will does not make mention
of two of the three parcels given to Amando Clemente under the first will.
The question that arises is whether the second will has the effect of revoking the
first. In my opinion, where, as in the present case, the two wills can be reconciled,
the first should be considered revoked only in so far as it is inconsistent with the
second. As the second will was executed only twenty-one months after the first, the
testatrix, who has been conclusively shown to be of sound mind at the time of the
execution of the later will, could not have forgotten that she owned two other
parcels of land, especially if they are of considerable value. Even the lawyer who
drafted the second will was aware that the testatrix owned the said two parcels,
because they were included in the inventory made of her properties in connection
with the administration proceedings of the estate of her deceased husband. This
omission could have been made only on purpose, and, coupled with the
circumstance that the section will does not expressly revoke the first which has not
been burned, torn, cancelled or obliterated, inevitably leads to the inference that
the testatrix in face intended to make the first will effective as to the two parcels of
land above referred to.
Section 623 of the Code of Civil Procedure provides:
No will shall be revoked, except by implication of law, otherwise than by some will,
codicil, or other writing executed as provided in case of wills; or by burning, tearing,
cancelling, or obliterating the same with the intention of revoking it, by the testator
himself, or by some other person in his presence, and by his express direction.
xxx xxx xxx
If partially conflicting, that of the latter date will operate to revoke the former so far
as the provisions of the two are conflicting or incompatible, and in such case both
wills are entitled to probate. (68 Corpus Juris 805.)
Where there is no revocation in a later will of all former wills, two separate and
distinct wills may be probated, especially when the probating of one only of the
instruments would leave an intestacy as to part of the estate. This rule applies even
though the later instrument states that it is the last will and testament of the
testator, as the use of such words in a later instrument does not of itself revoke a
prior will. (Id. p. 885.)
I therefore vote for the probate of both wills.