1.

DE JESUS VS DE JESUS Facts: After the death of spouses Andres de Jesus and Bibiana Roxas de Jesus, Special Proceeding case was filed by petitioner Simeon Roxas, the brother of the deceased Bibiana. Simeon was appointed administrator. Then, he delivered to LC a document purporting to be the holographic Will of Bibiana. Respondent Judge set the hearing of the probate of the holographic will. Petitioner Simeon testified that after his appointment as administrator, he found a notebook belonging to Bibiana and that on pages 21, 22, 23 and 24, a letter-will addressed to her children and entirely written and signed in the handwriting of Bibiana was found. The will is dated "FEB./61 " and states: "This is my will which I want to be respected although it is not written by a lawyer. ... Testimony of Simeon was corroborated by the testimonies of Pedro Roxas de Jesus and Manuel Roxas de Jesus who likewise testified that the letter dated "FEB./61 " is the holographic Will of their deceased mother, Bibiana. Both recognized the handwriting of their mother and positively Identified her signature. further testified that their mother understood English, the language in which the holographic Will is written, and that the date "FEB./61 " was the date when said Will was executed by their mother.

Respondent Judge issued an order allowing the probate of the holographic Will which he found to have been duly executed in accordance with law. Respondent Luz filed MR alleging that the alleged holographic Will of Bibiana was not dated as required by Article 810 of the Civil Code. contends that the law requires that the Will should contain the day, month and year of its execution and that this should be strictly complied with.

Respondent Judge reconsidered his earlier order and disallowed the probate of the holographic Will on the ground that the word "dated" has generally been held to include the month, day, and year.

Issue: WON the date "FEB./61 " appearing on the holographic Will of Bibiana is a valid compliance with the Article 810 of the CC. Held:

ART. 810 - A person may execute a holographic will which must be entirely written, dated, and signed by the hand of the testator himself. It is subject to no other form, and may be made in or out of the Philippines, and need not be witnessed. Petitioners contends: while Article 685 of the Spanish Civil Code and Article 688 of the Old Civil Code require the testator to state in his holographic Will the "year, month, and day of its execution," the present Civil Code omitted the phrase Ao mes y dia and simply requires that the holographic Will should be dated. that the liberal construction of the holographic Will should prevail.

Respondent Luz Henson, another compulsory heir filed an "opposition to probate" assailing the purported holographic Will of Bibiana bec. it was not executed in accordance with law, it was executed through force, intimidation and/or under duress, undue influence and improper pressure, the alleged testatrix acted by mistake and/or did not intend, nor could have intended the said Will to be her last Will and testament at the time of its execution

Respondent submits:

that the purported holographic Will is void for non-compliance with Article 810 of the New Civil Code in that the date must contain the year, month, and day of its execution. that Article 810 of the Civil Code was patterned after Section 1277 of the California Code and Section 1588 of the Louisiana Code whose Supreme Courts had consistently ruled that the required date includes the year, month, and day, and that if any of these is wanting, the holographic Will is invalid. that the petitioner cannot plead liberal construction of Article 810 of the Civil Code because statutes prescribing the formalities to be observed in the execution of holographic Wills are strictly construed.

but without undue or unnecessary curtailment of testamentary privilege Icasiano v. Icasiano, 11 SCRA 422). If a Will has been executed in substantial compliance with the formalities of the law, and the possibility of bad faith and fraud in the exercise thereof is obviated, said Win should be admitted to probate. Thus, ... More than anything else, the facts and circumstances of record are to be considered in the application of any given rule. If the surrounding circumstances point to a regular execution of the wilt and the instrument appears to have been executed substantially in accordance with the requirements of the law, the inclination should, in the absence of any suggestion of bad faith, forgery or fraud, lean towards its admission to probate, although the document may suffer from some imperfection of language, or other non-essential defect. ... If the testator, in executing his Will, attempts to comply with all the requisites, although compliance is not literal, it is sufficient if the objective or purpose sought to be accomplished by such requisite is actually attained by the form followed by the testator. The purpose of the solemnities surrounding the execution of Wills has been expounded by this Court in Abangan v. Abanga 40 Phil. 476, where we ruled that: The object of the solemnities surrounding the execution of wills is to close the door against bad faith and fraud, to avoid substitution of wills and testaments and to guaranty their truth and authenticity. ... complete date is required to provide against such contingencies as that of two competing Wills executed on the same day, or of a testator becoming insane on the day on which a Will was executed. There is no such contingency in this case.

SC agree with the petitioner. This will not be the first time that this Court departs from a strict and literal application of the statutory requirements regarding the due execution of Wills. We should not overlook the liberal trend of the Civil Code in the manner of execution of Wills, the purpose of which, in case of doubt is to prevent intestacy The underlying and fundamental objectives permeating the provisions of the law on wigs in this Project consists in the liberalization of the manner of their execution with the end in view of giving the testator more freedom in expressing his last wishes, but with sufficient safeguards and restrictions to prevent the commission of fraud and the exercise of undue and improper pressure and influence upon the testator. This objective is in accord with the modem tendency with respect to the formalities in the execution of wills.

Justice Capistrano's concurring opinion in Heirs of Raymundo Castro v. Bustos that: ... The law has a tender regard for the will of the testator expressed in his last will and testament on the ground that any disposition made by the testator is better than that which the law can make. For this reason, intestate succession is nothing more than a disposition based upon the presumed will of the decedent. Thus, the prevailing policy is to require satisfaction of the legal requirements in order to guard against fraud and bad faith

SC found no evidence of bad faith and fraud in the execution of the will nor was there any substitution of Wills and Testaments. no question that the holographic Will of Bibiana was entirely written, dated, and signed by the testatrix herself and in a language known to her. no question as to its genuineness and due execution.

All the children of the testatrix agree on the genuineness of the holographic Will of their mother and that she had the testamentary capacity at the time of the execution of said Will. objection interposed by the oppositor that the holographic Will is fatally defective because the date "FEB./61 " appearing on the holographic Will is not sufficient compliance with Article 810 of the Civil Code. This objection is too technical to be entertained.

to dispose of her estate by will. PR opposed the petition on the grounds that: neither the testament's body nor the signature therein was in decedent's handwriting; it contained alterations and corrections which were not duly signed by decedent; and, the will was procured by petitioners through improper pressure and undue influence.

General Rule: the "date" in a holographic Will should include the day, month, and year of its execution.

petition was likewise opposed by Dr. Jose Ajero. that the house and lot disposed in the will could not be conveyed by decedent in its entirety, as she was not its sole owner.

However, when as in the case at bar, there is no appearance of fraud, bad faith, undue influence and pressure and the authenticity of the Will is established and the only issue is whether or not the date "FEB./61" appearing on the holographic Will is a valid compliance with Article 810 of the Civil Code, probate of the holographic Will should be allowed under the principle of substantial compliance. __________________________________________________________ 2. AJERO VS CA Facts: RTC of Quezon City submitted for probate the holographic will of the late Annie Sand. In the will, decedent named as devisees, the following: petitioners Roberto and Thelma Ajero, PR Clemente Sand, Meriam S. Arong, Leah Sand, Lilia Sand, Edgar Sand, Fe Sand, Lisa S. Sand, and Dr. Jose Ajero, Sr., and their children. Petitioners instituted Sp. Proc. case for allowance of decedent's holographic will. They alleged that at the time of its execution, she was of sound and disposing mind, not acting under duress, fraud or undue influence, and was in every respect capacitated

TC - admitted the decedent's holographic will to probate. identity of the will presented for probate must be accepted a. Considering then that the probate proceedings herein must decide only the question of identity of the will, its due execution and the testamentary capacity of the testatrix, this probate court finds no reason at all for the disallowance of the will for its failure to comply with the formalities prescribed by law nor for lack of testamentary capacity of the testatrix. Lib rary b. no evidence was presented to show that the will in question is different from the will actually executed by the testatrix. The only objections raised by the oppositors . . . are that the will was not written in the handwriting of the testatrix which properly refers to the question of its due execution, and not to the question of identity of will. c. No other will was alleged to have been executed by the testatrix other than the will herein presented.

requirement of the law that the holographic will be entirely written, dated and signed in the handwriting of the testatrix has been complied with.

a. Petitioners have satisfactorily shown in Court that the holographic will in question was indeed written entirely, dated and signed in the handwriting of the testatrix. b. 3 witnesses who have convincingly shown knowledge of the handwriting of the testatrix have been presented and have explicitly and categorically identified the handwriting with which the holographic will in question was written to be the genuine handwriting and signature of the testatrix. Testatrix had full mental capacity a. PR himself testified that the testatrix was completely in her sound mind when he visited her during her birthday in 1981, at or around which time the holographic will in question was executed. To be of sound mind, it is sufficient that the testatrix, at the time of making the will, knew the value of the estate to be disposed of, the proper object of her bounty, and the character of the testamentary act . . . The will itself shows that the testatrix even had detailed knowledge of the nature of her estate. She even identified the lot number and square meters of the lots she had conveyed by will. The objects of her bounty were likewise identified explicitly. And considering that she had even written a nursing book which contained the law and jurisprudence on will and succession, there is more than sufficient showing that she knows the character of the testamentary act. Held: SC the identity of the will, its due execution and the testamentary capacity of the testatrix has to be resolved in favor of the allowance of probate of the will.

no evidence was presented to show sufficient reason for the disallowance of herein holographic will. Evidence adduced have not shown any instance where improper pressure or influence was exerted on the testatrix. PR has testified that the testatrix was still alert at the time of the execution of the will. It was also established that she is a very intelligent person and has a mind of her own. Her independence of character and to some extent, her sense of superiority, which has been testified to in Court, all show the unlikelihood of her being unduly influenced or improperly pressured to make the aforesaid will. undue influence or improper pressure refer to the making of a will and not as to the specific testamentary provisions therein which is the proper subject of another proceeding. it is a well-established doctrine in the law on succession that in case of doubt, testate succession should be preferred over intestate succession, and the fact that no convincing grounds were presented and proven for the disallowance of the holographic will of the late Annie Sand, the aforesaid will submitted herein must be admitted to probate.

CA- reversed TC and the petition for probate of the will was dismissed. found that, "the holographic will fails to meet the requirements for its validity bec. it did not comply with Articles 813 and 814 of the New Civil Code. Art. 813: When a number of dispositions appearing in a holographic will are signed without being dated, and the last disposition has a signature and date, such date validates the dispositions preceding it, whatever be the time of prior dispositions. Art. 814: In case of insertion, cancellation, erasure or alteration in a holographic will, the testator must authenticate the same by his full signature. It alluded to certain dispositions in the will which were either unsigned and undated, or signed but not dated.

that the erasures, alterations and cancellations made thereon had not been authenticated by decedent.

(3) If it was executed through force or under duress, or the influence of fear, or threats; chanrobles virtual law library (4) If it was procured by undue and improper pressure and influence, on the part of the beneficiary or of some other person; chanrobles virtual law library (5) If the signature of the testator was procured by fraud; chanrobles virtual law library

Issue: WON the will may be probated. Held: SC - appeal was impressed with merit.

Section 9, Rule 76 of the Rules of Court provides that will shall be disallowed in any of the following cases:

(6) If the testator acted by mistake or did not intend that the instrument he signed should be his will at the time of affixing his signature thereto. These lists are exclusive; no other grounds can serve to disallow a will. Thus, in a petition to admit a holographic will to probate, the only issues to be resolved are: (1) whether the instrument submitted is, indeed, the decedent's last will and testament; (2) whether said will was executed in accordance with the formalities prescribed by law; (3) whether the decedent had the necessary testamentary capacity at the time the will was executed; and, (4) whether the execution of the will and its signing were the voluntary acts of the decedent. SC reiterate Abangan vs. Abangan, 40 Phil. 476, 479 (1919), that: The object of the solemnities surrounding the execution of wills is to close the door against bad faith and fraud, to avoid substitution of wills and testaments and to guaranty their truth and authenticity. Therefore, the laws on this subject should be interpreted in such a way as to attain these primordial ends. But, on the other hand, also one must not lose sight of the fact that it is not the object of the law to restrain and curtail the exercise of the right to make a will. So when an interpretation already given assures such ends, any other interpretation whatsoever, that adds nothing but

(a) If not executed and attested as required by law; chanrobles virtual law library (b) If the testator was insane, or otherwise mentally incapable to make a will, at the time of its execution; (c) If it was executed under duress, or the influence of fear, or threats; (d) If it was procured by undue and improper pressure and influence, on the part of the beneficiary, or of some other person for his benefit; chanrobles virtual law library (e) If the signature of the testator was procured by fraud or trick, and he did not intend that the instrument should be his will at the time of fixing his signature thereto. In the same vein, Article 839 of the New Civil Code reads: Art. 839: The will shall be disallowed in any of the following cases; (1) If the formalities required by law have not been complied with; chanrobles virtual law library (2) If the testator was insane, or otherwise mentally incapable of making a will, at the time of its execution; chanrobles virtual law library

demands more requisites entirely unnecessary, useless frustrative of the testator's last will, must be disregarded.

and

For purposes of probating non-holographic wills, these formal solemnities include the subscription, attestation, and acknowledgment requirements under Articles 805 and 806 of the New Civil Code. What assures authenticity of holographic wills - is the requirement that they be totally autographic or handwritten by the testator himself, as provided under Article 810 of the New Civil Code, thus: A person may execute a holographic will which must be entirely written, dated, and signed by the hand of the testator himself. It is subject to no other form, and may be made in or out of the Philippines, and need not be witnessed.

necessary conditions for the validity of the holographic will (Article 810). The distinction can be traced to Articles 678 and 688 of the Spanish Civil Code, from which the present provisions covering holographic wills are taken. They read as follows: Art. 678: A will is called holographic when the testator writes it himself in the form and with the requisites required in Article 688.chanroblesvirtualawlibrary chanrobles virtual law library Art. 688: Holographic wills may be executed only by persons of full age. In order that the will be valid it must be drawn on stamped paper corresponding to the year of its execution, written in its entirety by the testator and signed by him, and must contain a statement of the year, month and day of its execution. If it should contain any erased, corrected, or interlined words, the testator must identify them over his signature. Foreigners may execute holographic wills in their own language. only the requirements of Article 810 of the New Civil Code - and not those found in Articles 813 and 814 of the same Code - are essential to the probate of a holographic will. CA is affirmed in saying that decedent could not validly dispose of the house and lot. GR - probate proceedings are limited to pass only upon the extrinsic validity of the will sought to be probated. However, in exceptional instances, courts are not powerless to do what the situation constrains them to do, and pass upon certain provisions of the will. In the case at bench, decedent herself indubitably stated in her holographic will that the Cabadbaran property is in the name of her late father.

Failure to strictly observe other formalities will not result in the disallowance of a holographic will that is unquestionably handwritten by the testator. Article 813 NCC - its requirement affects the validity of the dispositions contained in the holographic will, but not its probate. If the testator fails to sign and date some of the dispositions, the result is that these dispositions cannot be effectuated. Such failure, however, does not render the whole testament void. holographic will can still be admitted to probate, notwithstanding non-compliance with the provisions of Article 814. Kalaw vs. Relova - Ordinarily, when a number of erasures, corrections, and interlineations made by the testator in a holographic Will have not been noted under his signature, . . . the Will is not thereby invalidated as a whole, but at most only as respects the particular words erased, corrected or interlined. Thus, unless the unauthenticated alterations, cancellations or insertions were made on the date of the holographic will or on testator's signature, their presence does not invalidate the will itself. The lack of authentication will only result in disallowance of such changes. the requirements of authentication of changes and signing and dating of dispositions appear in provisions (Articles 813 and 814) separate from that which provides for the

___________________________________________________ 3. KALAW VS RELOVA Facts:

PR GREGORIO KALAW, claiming to be the sole heir of his deceased sister, Natividad Kalaw, filed a petition for the probate of her holographic Will. The holographic Will reads in full as follows: My Last will and Testament. In the name of God, Amen. I Natividad K. Kalaw Filipino 63years of age, single, and a resident of Lipa City, being of sound and disposing mind and memory, do hereby declare thus to be my last will and testament. 1. It is my will that I'll be burried in the cemetery of the catholic church of Lipa City. In accordance with the rights of said Church, and that my executrix hereinafter named provide and erect at the expose of my state a suitable monument to perpetuate my memory.

of the Civil Code being, clear and explicit, (it) requires no necessity for interpretation.) ROSA - filed this Petition for Review on certiorari on the sole legal question of whether or not the original unaltered text after subsequent alterations and insertions were voided by the Trial Court for lack of authentication by the full signature of the testatrix, should be probated or not, with her as sole heir.

Issue: WON holographic will may be probated though erasure thereon was not authenticated by testatrix by affixing her signature. Held: Ordinarily, when a number of erasures, corrections, and interlineations made by the testator in a holographic Will litem not been noted under his signature, ... the Will is not thereby invalidated as a whole, but at most only as respects the particular words erased, corrected or interlined. However, when as in this case, the holographic Will in dispute had only one substantial provision, which was altered by substituting the original heir with another, but which alteration did not carry the requisite of full authentication by the full signature of the testator, the effect must be that the entire Will is voided or revoked for the simple reason that nothing remains in the Will after that which could remain valid. To state that the Will as first written should be given efficacy is to disregard the seeming change of mind of the testatrix. But that change of mind can neither be given effect because she failed to authenticate it in the manner required by law by affixing her full signature, Ruling in Velasco, supra, must be held confined to such insertions, cancellations, erasures or alterations in a holographic Will, which affect only the efficacy of the altered words themselves but not the essence and validity of the Will itself. As it is, with the erasures, cancellations and alterations made by the testatrix herein, her real intention cannot be determined with certitude.

The holographic Will, as first written, named ROSA K. Kalaw, a sister of the testatrix as her sole heir. petitioner ROSA K. Kalaw opposed probate alleging that the holographic Will contained alterations, corrections, and insertions without the proper authentication by the full signature of the testatrix as required by Article 814 of the Civil Code reading: Art. 814. In case of any insertion, cancellation, erasure or alteration in a holographic will the testator must authenticate the same by his full signature. ROSA's position was that the holographic Will, as first written, should be given effect and probated so that she could be the sole heir thereunder.

TC - denied probate Bec. the insertions, alterations and/or additions in Exhibit "C" is not authenticated by the full signature of the testatrix Natividad GREGORIO moved for reconsideration - arguing that since the alterations and/or insertions were the testatrix, the denial to probate of her holographic Will would be contrary to her right of testamentary disposition. (DENIED on ground that "Article 814

Petition dismissed and TC Decision affirmed in toto. __________________________________________________________

4. MICIANO VS BRIMO Facts: The partition of the estate left by the deceased Joseph G. Brimo is in question in this case. The judicial administrator of this estate filed a scheme of partition. Andre Brimo, one of the brothers of the deceased, opposed it. The court, however, approved it. The errors which the oppositor-appellant assigns are: (1) The approval of said scheme of partition; (2) denial of his participation in the inheritance; (3) the denial of the motion for reconsideration of the order approving the partition; (4) the approval of the purchase made by the Pietro Lana of the deceased's business and the deed of transfer of said business; and (5) the declaration that the Turkish laws are impertinent to this cause, and the failure not to postpone the approval of the scheme of partition and the delivery of the deceased's business to Pietro Lanza until the receipt of the depositions requested in reference to the Turkish laws. The appellant's opposition is based on the facts: that the partition in question puts into effect the provisions of Joseph G. Brimo's will which are not in accordance with the laws of his Turkish nationality, for which reason they are void as being in violation or article 10 of the Civil Code which, among other things, provides the following: -

Nevertheless, legal and testamentary successions, in respect to the order of succession as well as to the amount of the successional rights and the intrinsic validity of their provisions, shall be regulated by the national law of the person whose succession is in question, whatever may be the nature of the property or the country in which it may be situated. But the fact is that the oppositor did not prove that said testamentary dispositions are not in accordance with the Turkish laws, inasmuch as he did not present any evidence showing what the Turkish laws are on the matter, and in the absence of evidence on such laws, they are presumed to be the same as those of the Philippines. It has not been proved in these proceedings what the Turkish laws are. He, himself, acknowledges it when he desires to be given an opportunity to present evidence on this point; so much so that he assigns as an error of the court in not having deferred the approval of the scheme of partition until the receipt of certain testimony requested regarding the Turkish laws on the matter.

The refusal to give the oppositor another opportunity to prove such laws does not constitute an error. It is discretionary with the trial court, and, taking into consideration that the oppositor was granted ample opportunity to introduce competent evidence, we find no abuse of discretion on the part of the court in this particular. There is, therefore, no evidence in the record that the national law of the testator Joseph G. Brimo was violated in the testamentary dispositions in question which, not being contrary to our laws in force, must be complied with and executed.

Therefore, the approval of the scheme of partition in this respect was not erroneous. In regard to the first assignment of error which deals with the exclusion of the herein appellant as a legatee, inasmuch as he is one of the persons designated as such in will, it must be taken into consideration that such

exclusion is based on the last part of the second clause of the will, which says: Second. I like desire to state that although by law, I am a Turkish citizen, this citizenship having been conferred upon me by conquest and not by free choice, nor by nationality and, on the other hand, having resided for a considerable length of time in the Philippine Islands where I succeeded in acquiring all of the property that I now possess, it is my wish that the distribution of my property and everything in connection with this, my will, be made and disposed of in accordance with the laws in force in the Philippine islands, requesting all of my relatives to respect this wish, otherwise, I annul and cancel beforehand whatever disposition found in this will favorable to the person or persons who fail to comply with this request. The institution of legatees in this will is conditional, and the condition is that the instituted legatees must respect the testator's will to distribute his property, not in accordance with the laws of his nationality, but in accordance with the laws of the Philippines. If this condition as it is expressed were legal and valid, any legatee who fails to comply with it, as the herein oppositor who, by his attitude in these proceedings has not respected the will of the testator, as expressed, is prevented from receiving his legacy. The fact is, however, that the said condition is void, being contrary to law, for article 792 of the civil Code provides the following: Impossible conditions and those contrary to law or good morals shall be considered as not imposed and shall not prejudice the heir or legatee in any manner whatsoever, even should the testator otherwise provide. And said condition is contrary to law because it expressly ignores the testator's national law when, according to article 10 of the civil Code above quoted, such national law of the testator is the one to govern his testamentary dispositions. Said condition then, in the light of the legal provisions above cited, is considered unwritten, and the institution of

legatees in said will is unconditional and consequently valid and effective even as to the herein oppositor. It results from all this that the second clause of the will regarding the law which shall govern it, and to the condition imposed upon the legatees, is null and void, being contrary to law. -

All of the remaining clauses of said will with all their dispositions and requests are perfectly valid and effective it not appearing that said clauses are contrary to the testator's national law. distribution of the estate be made in such a manner as to include the herein appellant Andre Brimo as one of the legatees, and the scheme of partition submitted by the judicial administrator is approved in all other respects. __________________________________________________________ 5. BONILLA VS. ARANZA Facts: Appellant filed a petition for the probate of the holographic will of Ricardo Bonilla and the issuance of letters testamentary in her favor. Opposed by the appellees Amparo Aranza Bonilla, Wilferine Bonilla Treyes Expedita Bonilla Frias and Ephraim Bonilla on the following grounds: (1) The alleged holographic was not a last will but merely an instruction as to the management and improvement of the schools and colleges founded by decedent Ricardo B. Bonilla; and (2) Lost or destroyed holographic wills cannot be proved by secondary evidence unlike ordinary wills. TC denied MTD Appellees MR TC - dismissed the petition for the probate of the will of Ricardo B. Bonilla. The court said: that once the original copy of the holographic will is lost, a copy thereof cannot stand in lieu of the original.

In Gam vs. Yap, SC held that 'in the matter of holographic wills the law, it is reasonable to suppose, regards the document itself as the material proof of authenticity of said wills. that the alleged holographic will was executed on January 25, 1962 while Ricardo B. Bonilla died on May 13, 1976. In view of the lapse of more than 14 years from the time of the execution of the will to the death of the decedent, the fact that the original of the will could not be located shows to our mind that the decedent had discarded before his death his allegedly missing Holographic Will.

It is necessary that there be a comparison between sample handwritten statements of the testator and the handwritten will. But, a photostatic copy or xerox copy of the holographic will may be allowed because comparison can be made with the standard writings of the testator. In the case of Gam vs. Yap, SC ruled that "the execution and the contents of a lost or destroyed holographic will may not be proved by the bare testimony of witnesses who have seen and/or read such will. The will itself must be presented; otherwise, it shall produce no effect. The law regards the document itself as material proof of authenticity." But, in Footnote 8 of said decision, it says that "Perhaps it may be proved by a photographic or photostatic copy. Even a mimeographed or carbon copy; or by other similar means, if any, whereby the authenticity of the handwriting of the deceased may be exhibited and tested before the probate court," Evidently, the photostatic or xerox copy of the lost or destroyed holographic will may be admitted because then the authenticity of the handwriting of the deceased can be determined by the probate court.

Issue:

Appellant's MR - denied. Hence, an appeal to CA.

WON a holographic will which was lost or cannot be found can be proved by means of a photostatic copy. Held: Pursuant to Article 811 of the Civil Code, probate of holographic wills is the allowance of the will by the court after its due execution has been proved. The probate may be uncontested or not. If uncontested, at least one Identifying witness is required and, if no witness is available, experts may be resorted to. If contested, at least three Identifying witnesses are required. However, if the holographic will has been lost or destroyed and no other copy is available, the will can not be probated because the best and only evidence is the handwriting of the testator in said will.

Holographic will may be probated. __________________________________________________________ 6. DE LA CERNA, ET AL. VS POTOT, ET AL. Facts: SPS. 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" Bernabe dela Serna died will was submitted to probate by said Gervasia and Manuela which, after due publication as required by law and there being no opposition, heard the evidence, and orderer probate Upon death of Gervasia Rebaca another petition for the probate of the same will insofar as Gervasia was concerned was filed 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

Issue:

Whence this appeal by the heirs intestate of the deceased husband, Bernabe de la Cerna. WON will of Gervasia Rebaca may be probated.

Held: Appealed decision correctly held that the final decree of probate, entered in 1939 by LC (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 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. 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.

LC - declared the testament null and void, for being executed contrary to the prohibition of joint wills in the Civil Code (Art. 669, Civil Code of 1889 and Art. 818, Civil Code of the Philippines); CA- reversed LC, 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.

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, wherein SC gave effect to the provisions of the joint will therein mentioned, saying, "assuming that the joint will in question is valid." -

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 LC 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. 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 Judgment of CA affirmed

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