IN RE PROBATE OF THE WILL OF GABINA RAQUEL, deceased, AUREA MATIAS, Petitioner-Appellant, versus BASILIA SALUD, Oppositor-Appellee. G. R. NO.

. L-10751 , June 23, 1958 Appeal from an order of the Court of First Instance of Cavite (issued in its Special Proceedings No. 5253 on February 10, 1956) denying probate of the purported will of the late Gabina Raquel. Admittedly the deceased left no ascendants or descendants, and according to the proponents she executed the testamentary document on January 27, 1950, in the City of Cavite, in the presence of Modesta Gonzales, Felipa Samala and Lourdes Samonte, who signed as instrumental witnesses, and of attorney Ricardo Agbunag, who prepared the instrument. The document in question appears to be composed of three pages. On the lower half of the second page, preceding the attestation clause, appears the signature Gabina Raquel which is apparently of admitted authenticity. Alongside it is a smudge in violet ink, with blurred ridge lines, claimed by the proponents to be a thumbmark affixed by the testatrix. On the third page, at the end of the attestation clause appear the signatures appearing on the left margin of each page; and on the upper part of each pages left margin appears a violet ink smudge similar to the one previously described, accompanied by the written words Gabina Raquel and underneath said name by Lourdes Samonte. In the purported testament, most of the properties of the testatrix (appraised at over P160,000.00) are bequeathed to her niece Aurea Matias, in recompense for the services rendered to me for more than 30 years; some legacies are made to her other nephews and nieces surnamed Salud and Matias ; Aurea Matias is appointed executrix without bond. Below the signature Gabina Raquel set at the foot of the will proper, is an attestation clause in the Spanish language (like the will itself) and reading as follows: The testamentary capacity of the testatrix Gabina Raquel despite her ninety years of age and her disease (herpes zoster), is conceded. It is also undisputed that she mastered Spanish (the language in which the document is drawn) and that she could sign her name. The proponents evidence is to the effect that the deceased instructed attorney Agbunag to draft her will; that it was brought to her in the morning of January 27, 1950; that she had the witnesses summoned and received them in the ante sala of her house; that when the witnesses were seated around a table with her and attorney Agbunag, the will was read by the latter; that Gabina Raquel manifested conformity thereto and thumbmarked the foot of the document and the left margin of each page. Allegedly upon Agbunags insistence, she attempted to sign with his fountain pen, but was only able to affix the signature at the end of the testamentary dispositions (in the lower half of page two) because immediately after, she dropped the pen, grasping her right shoulder and complaining of pain. After 20 minutes, attorney Agbunag, seeing that Gabina Raquel could not proceed, instructed Lourdes Samonte to write Gabina Raquel by Lourdes Samonte next to each thumbmark, and thereafter witnesses Lourdes Samonte, Felipa Samala and Modesta Gonzalez signed, in that order, at the foot of the attestation clause and at the left margin of each page. It is to be noted that witness Modesta Gonzalez, a 64-year old woman did not testify, as she was found to be suffering from high blood pressure, and propo nents expert evidence was to the effect that her memory was impaired, and unusual excitement might cost her life.

The probate having been opposed by Basilia Salud, a niece of Gabina Raquel, the case was set for trial. After hearing, Judge Primitivo Gonzales of the Court of First Instance of Cavite rendered judgment upholding the contentions of the oppositor and denied the documents admission to probate, principally on the following grounds: (1) That the attestation clause did not state that the testatrix and the witnesses signed each and every page of the will; and while the left margins of each page exhibit the words Gabina Raquel by Lourdes Samonte, the attestation does not express that Lourdes was expressly directed to sign for the testatrix; (2) That the proponent did not adequately explain the non- production of witness Modesta Gonzalez, contrary to sec. 11, Rule 77 of the Rules of Court; (3) That the alleged signing and thumbmarking by the deceased was not done in the presence of the witnesses, nor did the latter sign in the presence of Gabina Raquel; (4) That fraud and bad faith attended the execution of the will. From the adverse decision of the trial court, the proponent appealed directly to this Court, because the value of the properties involved in the litigation exceeded P50,000.00. The trial court refused credence to the evidence for the proponents on the basis of the expert testimony of Captain Jos Fernandez of the Philippine Constabularys Criminal Laboratory, to the ef fect that (1) the fingerprints appearing at the end and left margins of the will were impressed over the name of the testatrix, and after the name was written, contrary to what the proponents witnesses asserted; (2) that the words Gabina Raquel by Lourdes Samonte on the upper left hand margin of page two of the will were falsified and appear to have been written over a previous tracing; (3) that the person who wrote Gabina Raquel by Lourdes Samonte is different from the one who wrote Lourdes Samonte as signature of an attesting witness; (4) that the signature Lourdes Samonte on the left margin of page 3 of the testament was written only after that of Felipa Samala when the testimony for the proponent was that they were written in the reverse order; and (5) that the pen used in signing Gabina Raquel at the foot of the will had separated nibs, while the other signatures in the document were written with a round point pen, again contrary to the contention for the proponent that only one pen was used. After careful consideration of the testimony on record, we are of the opinion that the facts adverted to by the expert for the contestant do not clearly support the conclusions drawn by him. Thus, his assertion that the fingerprints were affixed after writing the name of the testatrix appears to be an inference drawn from the fact that the ink of the writing failed to spread along the ridge lines of the fingerprints. This conclusion obviously failed to take into account the fact that the evidence is that some 10 or 20 minutes elapsed between the affixing of the fingerprints and the writing of the marginal signatures, due to the fact that they were not written until after a long wait for the testatrixs attack of pain to subside. There was sufficient time for the fingerprint (which was made in rubber stamp ink) to dry, and recognized authorities on the matter point out that ink lines over rubber stamps will spread out if the stamp is not dry (Soderman OConnel, Modern Criminal Investigation, 2d Ed., p. 453); and if the stamp impression is allowed to dry thoroughly before the writing is written over it, the ink will not run out as it does on a damp ink line (Osborn, Questioned Documents, 2d Ed., p. 514). To such effect, the only composition of the

rubber stamp ink no doubt contributes. Thus, while the spreading out or running out of the writing ink along the stamping ink lines proves that the writing was made later, the absence of spread does not prove that stamping ink lines were made after the writing was done. As to the alleged forgery of Samontes signature in page 3, the lighter shade of the underlying characters strongly indicates that the overwriting was made to correct ink failure or other imperfection in the first writing. The experts opinion is also discredited by the fact that Samonte being available to the proponent (since she testified in favor of the will), there would be no sense in forging Samontes signature, when an authentic one was at proponents disposal all the time. And assu ming it to be true that in page 3 of the will Exh. D, Samonte signed after Samala, while in the other pages she had signed ahead, such occasional departure from the order usually followed does not signify that the execution of the testament was in any way abnormal or fraudulent. As to the alleged use of two different pens, expert Fernandez conclusions are backed more by opinion than by facts, besides being contradicted by expert Espinosa, and the proponents other witnesses. The basis for the conclusions of expert Fernandez, who admitted having been engaged on a contingent basis, not being satisfactorily established and his testimony being contradicted by the two witnesses to the will and the expert for the defense, the lower court erred in considering that the preponderance of the evidence lay with contestants (Roxas vs. Roxas, 48 O. G. 2177; cf Galvez vs. Galvez, 26 Phil. 243; Samson vs. Tan Quintin, 44 Phil. 573). We do not venture to impute bias to the experts introduced during the trial, but w e 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. x x x 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 witn esses present in the Philippines and not insane, must be produced and examined, and the death, absence, or insanity or any of them must be satisfactorily shown to the court. (Section 11, Rule 77, Rules of Court.) (Roxas vs. Roxas, supra) We are aware that the bequest of the greater portion of decedents estate in favor of proponent Aurea Matias is contained in the first page of the contested will, while the only authentic signature of the deceased appeared in the second page; but the appointment of proponent as executrix of the will without bond (con relevacion de fianza) appearing in the very same page (page 2) fully bespeaks the affection of the testatrix for the proponent, who had lived with the deceased, helped and served her for thirty years, and morally confirms the contested bequest. The court below likewise held against the proponent the fact that the subscribing witness Modesta Gonzalez was not a witness; claiming that such failure was a violation of sec. 11, Rule 77 of the Rules of Court. But while Modesta Gonzalez was not placed on the stand, the proponent made no secret of her whereabouts, nor of the reason why she was not asked to testify: the record shows that both Dr. Bellaflor and Dr. Sanchez agreed that Gonzalez was suffering from hypertension, that she was in the danger zone, and might collapse and die as a consequence of a little excitement on her part. The trial court, having expressly made of record that it would not like to assume responsibility for whatever might happen to

this woman (t.s.n. p. 301), could not logically hold proponent to account for not risking Modestas death. At any rate, contestants were free to call her as their own witness, had they felt justified in so doing; so that no unfavorable inference can be drawn from the fact that Modesta Gonzalez was not called by the proponent to the witness stand. Finally, the contestant urges that the fingermark of the testatrix can not be regarded as her valid signature since it does not show distinct identifying ridge lines; and thence, that the attestation clause, transcribed earlier in this opinion, should be held defective because it fails to state that Lourdes Samonte signed for the testator. This Court has repeatedly held that the legal requisite that the will should be signed by the testator is satisfied by a thumbprint or other mark affixed by him (De Gala vs. Ona, 53 Phil. 105; Dolor vs. Diancin, 55 Phil. 479; Neyra vs. Neyra, 42 O. G. 2817; Lopez vs. Liboro, 46 O. G. (Supp. to No. 1) 211); and that where such mark is affixed by the decedent, it is unnecessary to state in the attestation clause that another person wrote the testators name at his request (Payad vs. Tolentino, 62 Phil. 849). While in some of these cases the signing by mark was described in the will or in the attestation clause, it does not appear that the Court ever held that the absence of such description is a fatal defect. Appellant relies on the case of Garcia vs. Lacuesta, G. R. L- 4067, Nov. 29, 1951, wherein this Court denied probate holding that a will signed with a cross written after the testators name is not a sufficient signature. But in that case no showing was made that the cross mark was the testators habitual signature nor was any explanation given why he should use a cross when he knew how to sign. In the case now before us, it was shown that the herpes zoster that afflicted the right arm and shoulder of testatrix made writing a difficult and painful act, to the extent that, after writing one signature on the second page, she dropped the pen because of an attack of pain that lasted many minutes and evidently discourage attempts to sign. As to the clarity of the ridge impressions, it is so dependent on aleatory circumstances (consistency of the ink, overinking, slipping of the finger, etc.) as to require a dexterity that can be expected of very few persons; and we do not believe testators should be required to possess the skill of trained officers. It is to be conceded that where a testator employs an unfamiliar way of signing, and both the attestation clause and the will are silent on the matter, such silence is a factor to be considered against the authenticity of the testament; but the failure to describe the unusual signature by itself alone is not sufficient to refuse probate when the evidence for the proponent fully satisfies the court (as it does satisfy us in this case) that the will was executed and witnessed as required by law. WHEREFORE, the judgment appealed from is reversed, and the document Exh. D ordered admitt ed to probate. Let the records be returned to the court of origin for further proceedings in accordance with this opinion. Costs against appellees.

[G.R. No. L-4067. November 29, 1951] In the Matter of the Will of ANTERO MERCADO, deceased. ROSARIO GARCIA, Petitioner, v. JULIANA LACUESTA, ET AL., Respondents. SYLLABUS 1. WILLS; ATTESTATION CLAUSE; SIGNING BY ANOTHER OF TESTATORS NAME AT LATTERS DIRECTION. When the testator expressly caused another to sign the formers name, this fact must be recited in the attestation clause. Otherwise, the will is fatally defective. 2. ID.; SIGNATURE OF TESTATOR; CROSS. Where the cross appearing on a will is not the usual signature of the testator or even one of the ways by which he signed his name, that cross cannot be considered a valid signature. This is an appeal from a decision of the Court of Appeals disallowing the will of Antero Mercado dated January 3, 1943. The will is written in the Ilocano dialect and contains the following attestation clause: "We, the undersigned, by these presents do declare that the foregoing testament of Antero Mercado was signed by himself and also by us below his name and of this attestation clause and that of the left margin of the three pages thereof. Page three the continuation of this attestation clause; this will is written in Ilocano dialect which is spoken and understood by the testator, and it bears the corresponding number in letter which compose of three pages and all of them were signed in the presence of the testator and witnesses, and the witnesses in the presence of the testator and all and each and every one of us witnesses. "In testimony, whereof, we sign this testament, this the third day of January, one thousand nine hundred forty three, (1943) A.D. (Sgd.) "NUMERIANO EVANGELISTA (Sgd.) ROSENDO CORTES (Sgd.) BIBIANA ILLEGIBLE" The will appears to have been signed by Atty. Florentino Javier who wrote the name of Antero Mercado, followed below by "A ruego del testador" and the name of Florentino Javier. Antero Mercado is alleged to have written a cross immediately after his name. The Court of Appeals, reversing the judgment of the Court of First Instance of Ilocos Norte, ruled that the attestation clause failed (1) to certify that the will was signed on all the left margins of the three pages and at the end of the will by Atty. Florentino Javier at the express request of the testator in the presence of the testator and each and every one of the witnesses; (2) to certify that after the signing of the name of the testator by Atty. Javier at the formers request said testator has written a cross at the end of his name and on the left margin of the three pages of which the will consists and at the end thereof; (3) to certify that the three witnesses signed the will in all the pages thereon in the presence of the testator and of each other. In our opinion, the attestation clause is fatally defective for failing to state that Antero Mercado caused Atty. Florentino Javier to write the testators name under his express direction, as required by section 618 of the Code of Civil Procedure. The herein petitioner (who is appealing by way of certiorari from the decision of the Court of Appeals) argues, however, that there is no need for such recital because the cross written by the testator after his name is a sufficient signature and the signature of Atty. Florentino Javier is

a surplusage. Petitioners theory is that the cross is as much a signature as a thum bmark, the latter having been held sufficient by this Court in the cases of De Gala v. Gonzales and Ona, 53 Phil., 104; Dolar v. Diancin, 55 Phil., 479; Payad v. Tolentino, 62 Phil., 848; Neyra v. Neyra, 76 Phil., 296 and Lopez v. Liboro, 81 Phil., 429. It is not here pretended that the cross appearing on the will is the usual signature of Antero Mercado or even one of the ways by which he signed his name. After mature reflection, we are not prepared to liken the mere sign of a cross to a thumb mark, and the reason is obvious. The cross cannot and does not have the trustworthiness of a thumb mark. What has been said makes it unnecessary for us to determine whether there is a sufficient recital in the attestation clause as to the signing of the will by the testator in the presence of the witnesses, and by the latter in the presence of the testator and of each other. Wherefore, the appealed decision is hereby affirmed, with costs against the petitioner. So ordered.

[G.R. No. L-15153. August 31, 1960. ] In the matter of the summary settlement of the Estate of the deceased Anacleta Abellana. LUCIO BALONAN, Petitioner-Appellee, v. EUSEBIA ABELLANA, ET AL., Oppositors-Appellants. 1. WILLS; EXECUTION OF WILL; SUBSCRIBED AT THE END BY SOME PERSON OTHER THAN THE TESTATOR, INSUFFICIENT COMPLIANCE WITH THE LAW. A will subscribed at the end thereof by some person other than the testator in such manner that the signature of said person appears above the typewritten statement "Por la Testadora Anacleta Abellana . . . Ciudad de Zamboanga," may not be admitted to probate for failure to comply with the express requirement of the law that the testator must himself sign the will or that his name be affixed thereto by some other person in his presence and by his express direction. Appeal from a decision of the Court of First Instance of Zamboanga City admitting to probate the will of one Anacleta Abellana. The case was originally appealed to the Court of Appeals where the following assignment of error is made: "The appellants respectfully submit that the Trial Court erred in holding that the supposed testament, Exh.A, was signed in accordance with law; and in admitting the will to probate." In view of the fact that the appeal involves a question of law the said court has certified the case to us. The facts as found by the trial court are as follows: "It appears on record that the last Will and Testament (Exhibit A), which is sought to be probated, is written in the Spanish language and consists of two (2) typewritten pages (pages 4 and 5 of the record) double space. The first page is signed by Juan Bello and under his name appears typewritten Por la testadora Anacleta Abellana, residence Certificate A-1167629, Enero 20, 1951, Ciudad de Zamboanga, and on the second page appears the signature of the three (3) instrumental witnesses Blas Sebastian, Faustino Macaso and Rafael Ignacio, at the bottom of which appears the signature of T. de los Santos and below his signature is his official designation as the notary public who notarized the said testament. On the first page on the left margin of the said instrument also appear the signatures of the instrumental witnesses. On the second page, which is the last page of the said last Will and Testament, also appears the signature of the three (3) instrumental witnesses and on that second page on the left margin appears the signature of Juan Bello under whose name appears handwritten the following phrase, Por la Testadora Anacleta Abellana. The will is duly acknowledged before Notary Public, Attorney Timoteo de los Santos." ( Italics supplied.) The appeal squarely presents the following issue: Does the signature of Dr. Juan A. Abello above the typewritten statement "Por la Testadora Anacleta Abellana . . ., Ciudad de Zamboanga," comply with the requirements of the law prescribing the manner in which a will shall be executed? The present law, Article 805 of the Civil Code, in part provides as follows: "Every will, other than a holographic will, must be subscribed at the end thereof by the testator himself or by the testators name written by some other person in his presence, and by his express direction, and attested and subscribed by three or more credible witnesses in the presence of the testator and of one another." (Italics supplied.) The clause "must be subscribed at the end thereof by the testator himself or by the testators name written by some other person in his presence and by his express direction," is practically the same as the provisions of Section 618 of the Code of Civil Procedure (Act No. 190) which reads as follows: "No will, except as provided in the preceding section shall be valid to pass any estate, real or personal, nor

charge or affect the same, unless it be in writing and signed by the testator, or by the testators name written by some other person in his presence, and by his express direction, and attested and subscribed by three or more credible witnesses in the presence of the testator and of each other. . . ." ( Italics supplied) Note that the old law as well as the new require that the testator himself sign the will, or if he cannot do so, the testators name must be written by some other person in his presence and by his express direction. Applying this provision this Court said in the case of Ex Parte Pedro Arcenas, Et Al., 4 Phil., 700:jgc:chanrobles.com.ph "It will be noticed from the above-quoted section 618 of the Code of Civil Procedure that where the testator does not know how, or is unable, to sign, it will not be sufficient that one of the attesting witnesses signs the will at the testators request, the notary certifying thereto as provided in article 695 of the Civil Code, which, in this respect, was modified by section 618 above referred to, but it is necessary that the testators name be written by the person signing in his stead in the place where he would have signed if he knew how or was able so to do, and this in the testators presence and by his express direction; so that a will signed in a manner different than that prescribed by law shall not be valid and will not be allowed to be probated. "Where a testator does not know how, or is unable for any reason, to sign the will himself, it shall be signed in the following manner: 1aw library John Doe by the testator, Richard Roe; or in this form: By the testator, John Doe, Richard Roe. All this must be written by the witness signing at the request of the testator. "Therefore, under the law now in force, the witness Naval A. Vidal should have written at the bottom of the will the full name of the testator and his own name in one of the forms given above. He did not do so, however, and this failure to comply with the law is a substantial defect which affects the validity of the will and precludes its allowance, notwithstanding the fact that no one appeared to oppose it." virtua1aw library The same ruling was laid down in the case of Cuison v. Concepcion, 5 Phil., 552. In the case of Barut v. Cabacungan, 21 Phil., 461, we held that the important thing is that it clearly appears that the name of the testatrix was signed at her express direction; it is unimportant whether the person who writes the name of the testatrix signs his own or not. Cases of the same import are as follows: (Ex Parte Juan Ondevilla, 13 Phil., 479, Caluya v. Domingo, 27 Phil., 330; Garcia v. Lacuesta, 90 Phil., 489). In the case at bar the name of the testatrix, Anacleta Abellana, does not appear written under the will by said Abellana herself, or by Dr. Juan Abello. There is, therefore, a failure to comply with the express requirement in the law that the testator must himself sign the will, or that his name be affixed thereto by Some other person in his presence and by his express direction. It appearing that the above provision of the law has not been complied with, we are constrained to declare that the said will of the deceased Anacleta Abellana may not be admitted to probate. Wherefore, the decision appealed from is hereby set aside and the petition for the probate of the will denied. With costs against petitioner.

[Adm. Case No. 4. March 21, 1946. ] In the matter of the testate estate of the late Encarnacion Neyra. TRINIDAD NEYRA, Petitioner-Appellee, v. TEODORA NEYRA, PILAR DE GUZMAN and MARIA JACOBO VDA. DE BLANCO, Oppositors-Appellants. TEODORA NEYRA, PILAR DE GUZMAN and MARIA JACOBO VDA. DE BLANCO, Petitioners-Appellants, v. TRINIDAD NEYRA and EUSTAQUIO MENDOZA, Oppositors-Appellees. 1. WILLS; TESTAMENTARY CAPACITY, DEFINED. Testamentary capacity is the capacity to comprehend the nature of the transaction in which the testator is engaged at the time, to recollect the property to be disposed of, and the persons who would naturally be supposed to have claims upon the testator, and to comprehend the manner in which the instrument will distribute his property among the objects of his bounty. 2. D.; ID.; INSOMNIA, TUBERCULOSIS, DIABETES, NOT SUFFICIENT TO DESTROY MENTAL CAPACITY. Insomnia, in spite of the testimony of two doctors who testified for the opponents of the probate of a will, who stated that it tended to destroy mental capacity, was held not to affect the full possession of the mental faculties deemed necessary and sufficient for its execution. (Caguioa v. Calderon, 20 Phil., 400.) The testatrix was held to have been compos mentis, inspite of the physicians testimony to the contrary, to the effect that she was very weak, being in the third or last stage of tuberculosis. (Yap Tua v. Yap Ca Kuan and Yap Ca Llu, 27 Phil., 579.) The testimony of the attending physician that the deceased was suffering from diabetes and had been in a comatose condition for several days, prior to his death, was held not sufficient to establish testamentary incapacity, in view of the positive statement of several credible witnesses that he was conscious and able to understand what was said to him and to communicate his desires. (Samsan v. Corrales Tan Quintin, 44 Phil., 573.) 3. ID.; ID.; OLD AGE OR ILL HEALTH INSUFFICIENT TO INVALIDATE WILL. Where the mind of the testator is in perfectly sound condition, neither old age, nor ill health, nor the fact that somebody had to guide his hand in order that he might sign, is sufficient to invalidate his will. 4. ID.; ID.; EVIDENCE OF SOUND MIND. Where it appears that a few hours and also a few days after the execution of the will, the testator intelligently and intelligibly conversed with other persons, although lying down and unable to move or stand up unassisted, but could still effect the sale of property belonging to him, these circumstances show that the testator was in a perfectly sound mental condition at the time of executing the will. 5. ID.; ID.; SLEEPING SICKNESS (ADDISONS DISEASE) DOES NOT IMPAIR MENTAL FACULTIES. The mental faculties of persons suffering from Addisons disease, like the testatrix in this case remain unimpaired, partly due to the fact that, on account of the sleep they enjoy, they necessarily receive the benefit of physical and mental rest. And like patients suffering from tuberculosis, insomnia or diabetes, they preserve their mental faculties until the moments of their death. 6. ID.; SIGNING BY THUMBMARK; PRESENCE OF ATTESTING WITNESSES; TEST OF. The oppositors also claim that the attesting witnesses were not present, at the time that the testatrix thumbmarked the will in question, on her bed, in the sala of the house, as they were allegedly in the caida. But it has been fully shown that the attesting witnesses were present at the time of the signing and execution of the agreement and will in question, in the sala, where the testatrix was lying on her bed. The true test is not whether they actually saw each other, at the time of the signing of the will, but whether they might have seen each other sign, had they chosen to do so and, the attesting witnesses actually saw it in this case. (Jaboneta v. Gustilo, 5 Phil., 541.) And the thumbmark placed by the testatrix on the will is equivalent to

her signature. (Yap Tua v. Yap Ca Kuan and Yap Ca Llu, supra.) 7. APPEAL; FINDINGS OF FACT OF TRIAL COURT, WHEN TO BE REVERSED. This court will not reverse any findings of fact by the trial court made upon conflicting testimony and depending largely upon the credibility of witnesses, who testified in the presence of the trial judge, unless the court below failed to take into consideration some material facts or circumstances or to weigh accurately all of the material facts and circumstances presented to it for consideration. This is an appeal from a decree rendered by the Hon. Gervasio Diaz, Judge of the Court of First Instance of the City of Manila, on December 3, 1943, admitting to probate a will dated November 3, 1942, executed by the deceased Encarnacion Neyra; at the same time denying the probate of a previous will dated September 14, 1939, alleged to have been executed by the said testatrix. Trinidad Neyra, beneficiary in the will executed on November 3, 1942, filed, on November 10, 1942, a petition in the Court of First Instance of Manila, for the probate of said will. On December 19, 1942, Teodora Neyra, Pilar de Guzman, and Maria Jacobo Vda. de Blanco, who had not been named as beneficiaries in said will, filed on opposition to the probate of the said will dated November 3, 1942, alleging (1) that at the time of the alleged execution of the said will, the testatrix Encarnacion Neyra no longer possessed testamentary capacity; (2) that her thumb marks on said instrument had been procured by means of fraud by petitioner Trinidad Neyra, and that Encarnacion Neyra never intended to consider said document as will; (3) that the alleged will, dated November 3, 1942, had not been executed in the manner and form prescribed by law; and (4) that Encarnacion Neyra, since September 14, 1939, had executed a will naming as beneficiaries said oppositors and others, and that said will had never been revoked or amended in any manner whatsoever. On December 26, 1942, petitioner Trinidad Neyra filed a reply denying the allegations in the opposition. Subsequently, said oppositors filed a counter petition, asking for the probate of the first will executed by Encarnacion Neyra, on September 14, 1939, marked as Exhibit 16. On March 16, 1943, the legatees Trinidad Neyra and Eustaquio Mendoza filed their opposition to the probate of said will marked as Exhibit 16, and amended said opposition, on September 15, 1943, to which Teodora Neyra and the others filed a reply, on September 20, 1943. On the dates set for the hearing on the petition filed by Trinidad Neyra, and the counter petition mentioned above, said petitioner as well as the oppositors, presented evidence, testimonial and documentary. The witnesses presented by the petitioner Trinidad Neyra were Mons. Vicente Fernandez, Rev. Fr. Teodoro Garcia, Sor. Andrea Montejo, Dr. Moises B. Abad, Dr. Eladio A. Aldecoa, Atty. Ricardo Sikat, petitioner Trinidad Neyra herself, and Atty. Alejandro M. Panis, who had acted as scrivener in the preparation of said will dated November 3, 1942. Teodora Neyra and the other oppositors also presented several witnesses, the principal among whom were Presentacion Blanco, Ceferina de la Cruz, Acislo Manuel, Dr. Dionisio Parulan, an alleged medical expert, and the oppositors Teodora Neyra and Pilar de Guzman themselves. After considering the evidence, the lower court rendered a decree admitting to probate the will dated November 3, 1942; at the same time denying the probate of the will dated September 14, 1939. From said decision Teodora Neyra and the other oppositors appealed to the Court Appeals for the City of

Manila, assigning several errors, which may be reduced to the following, to wit, the trial court erred (1) in finding that Encarnacion Neyra wanted to make a new will; (2) in declaring that there was reconciliation between Encarnacion Neyra and her sister Trinidad; (3) in accepting as satisfactory the evidence submitted by the petitioner; (4) in ignoring the evidence submitted by the oppositors; and (5) in not admitting to probate the will dated September 14, 1939. The evidence, testimonial and documentary, adduced during the trial of the case in the court below, has satisfactorily and sufficiently established the following facts:chanrob1es virtual 1aw library That Severo Neyra died intestate in the City of Manila, on May 6, 1938, leaving certain properties and two children, by his first marriage, named Encarnacion Neyra and Trinidad Neyra, and several other relatives; that after the death of Severo Neyra, the two sisters, Encarnacion Neyra and Trinidad Neyra, had serious quarrels, in connection with the properties left by their deceased father, and so serious were their dissensions that, after March 31, 1939, they had two litigations in the Court of First Instance of Manila, concerning said properties (Exhibits 8 and 9): In the first case, filed on March 31, 1939, Trinidad Neyra and others demanded from Encarnacion Neyra Et. Al. the annulment of the sale of the property located at No. 366 Raon Street, Manila, and it was finally decided in favor of the defendants in the Court of First instance and in the Court of Appeals, on December 21, 1943 (G. R. No. 8162, Exhibit 9). In the second case, filed on October 25, 1939, Trinidad Neyra demanded from Encarnacion Neyra, one-half (1/2) of the property described therein, and one-half (1/2) of the rents, and the Court of First Instance decided in favor of the plaintiff, but at the same time awarded in favor of the defendant P727.77 under her counterclaim; and Trinidad Neyra again elevated the case to the Court of Appeals for Manila (G. R. No. 8075) Exhibit 8, which was decided, pursuant to the document of compromise marked as Exhibit D; and the petition for reconsideration filed therein still remains undecided. That Encarnacion Neyra, who had remained single, and who had no longer any ascendants, executed a will on September 14, 1939, marked Exhibit 16, disposing of her properties in favor of the "Congregacion de Religiosas de la Virgen Maria" and her other relatives named Teodora Neyra, Pilar de Guzman and Maria Jacobo Vda. de Blanco, making no provision whatsoever in said will in favor of her only sister Trinidad Neyra, who had become her bitter enemy; that when the said will was brought to the attention of the authorities of said Congregation, after due deliberation and consideration, said religious organization declined the bounty offered by Encarnacion Neyra, and said decision of the Congregation was duly communicated to her; that in order to overcome the difficulties encountered by said religious organization in not accepting the generosity of Encarnacion Neyra, the latter decided to make a new will, and for that purpose, about one week before her death, sent for one Ricardo Sikat, an attorney working in the Law Offices of Messrs. Feria and Lao, and gave him instructions for the preparation of a new will; that Attorney Sikat, instead of preparing a new will, in accordance with the express instructions given by Encarnacion Neyra merely prepared a draft in the form of a codicil, marked as Exhibit M, amending said will, dated September 14, 1939, again naming said religious organization, among others, as beneficiary, and said draft of a codicil was also forwarded to the authorities of said religious organization, for their consideration and acceptance. In the meanwhile, Encarnacion Neyra had become seriously ill, suffering from Addisons disease, and on October 31, 1942, she sent for her religious adviser and confessor, Mons. Vicente Fernandez of the Quiapo Church to make confession, after which she expressed her desire to make a mass celebrated in her house at No. 366 Raon Street, City of manila, so that she might take holy communion, in view of her condition; that following the request of Encarnacion Neyra, Mons. Fernandez caused the necessary arrangements to be made for the celebration of holy mass in the house of Encarnacion Neyra, and as a matter of fact, on

November 1, 1942, holy mass was solemnized in her house, Fr. Teodoro Garcia, also of the Quiapo Church, officiating in said ceremony, on which occasion, Encarnacion Neyra, who remained in bed, took holy communion; that after said religious ceremony had been terminated, Father Garcia talked to Encarnacion Neyra and advised reconciliation between the two sisters, Encarnacion Neyra and Trinidad Neyra. Encarnacion Neyra accepted said advice and at about noon of the same day (November 1, 1942), sent Eustaquio Mendoza to fetch her sister Trinidad Neyra, who came at about @:30 that same afternoon; that on seeing one another, the two greeted each other in a most affectionate manner, and became reconciled; that the two had a long and cordial conversation, in the course of which the two sisters also talked about the properties left by their deceased father and their litigations which had reached the Court of Appeals for the City of Manila, and they agreed to have the said appeal dismissed, on the condition that the property involved therein, consisting of a small house and lot, should be given exclusively to Trinidad Neyra, on the condition that the latter should waive her claim for her share in the rents of said property, while under the administration of Encarnacion Neyra, and that the two should renounce their mutual claims against one another. It was also agreed between the two sisters to send for Atty. Alejandro M. Panis, to prepare the necessary document embodying the said agreement, but Attorney Panis could come only in the afternoon of the following day, November 2, 1942, when Encarnacion gave him instructions for the preparation of the document embodying their agreement, and other instructions relative to the disposition she wanted to make of her properties in her last will and testament; that Attorney Panis prepared said document of compromise or agreement marked as Exhibit D, as well as the new will and testament marked as Exhibit C, naming Trinidad Neyra and Eustaquio Mendoza beneficiaries therein, pursuant to the express instructions given by Encarnacion Neyra, and said instruments were ready for signature on November 3, 1942; that in the afternoon of that day, November 3, 1942, Attorney Panis read said will and testament marked as Exhibit D to Encarnacion Neyra slowly and in a loud voice, in the presence of Fr. Teodoro Garcia, Dr. Moises B. Abad, Dr. Eladio Aldecoa, herein petitioner Trinidad Neyra, and others, after which he asked her if its terms were in accordance with her wishes, if she had anything else to add, or anything to be changed in said will; and as Encarnacion Neyra stated that the terms of said will were in accordance with her wishes and express instructions, she asked for the pad and the will Exhibit C and, with the help of a son of herein petitioner, placed her thumb mark at the foot of said will, in the presence of the three attesting witnesses, Dr. Moises B. Abad, Dr. Eladio R. Aldecoa, and Atty. Alejandro M. Panis, after which the attesting witnesses signed at the foot of the document, in the presence of the testatrix Encarnacion Neyra, and of each and everyone of the other attesting witnesses. Fr. Teodoro Garcia and petitioner Trinidad Neyra and several others were also present. On November 4, 1942, the testatrix Encarnacion Neyra, due to a heart attack, unexpectedly died. Although the "Congregacion de Religiosas de la Virgen Maria" had again decided not to accept the provision made in its favor by testatrix Encarnacion Neyra in the proposed codicil prepared by Atty. Ricardo Sikat, said decision could not be communicated to the testatrix, before her death. Mons. Vicente Fernandez and Fr. Teodoro Garcia testified as to the request made on October 31, 1942, by Encarnacion Neyra for the celebration of holy mass in her house, on November 1, 1942; that said mass was in fact solemnized in her house, on that date, in the course of which the testatrix Encarnacion Neyra took holy communion; that on the same day, after the mass, Encarnacion held a long conversation with Father Garcia, in the course of which, said priest advised her to have reconciliation with her sister Trinidad; and that said advise was accepted by Encarnacion. By the testimony of Trinidad Neyra, it has been shown that Encarnacion sent Eustaquio Mendoza to fetch her, and that in fact she came to the house of Encarnacion, at about 2:30 o clock in the afternoon that

same day, November 1, 1942, with said Eustaquio Mendoza; that on seeing one another, Encarnacion and Trinidad Neyra greeted each other most affectionately, forgiving one another, after which they talked about the property left by their deceased father and the litigation pending between them; and the two sisters agreed to settle their case, which had been elevated to the Court of Appeals for the City of Manila, concerning a certain house and lot, on the understanding that said property should be given exclusively to Trinidad, and that the latter should renounce her claim against Encarnacion, for her share in the rents collected on said property, and, at the same time, Encarnacion renounced her claim for P727.77 against Trinidad; and at it was also agreed between the two sisters that Atty. Alejandro M. Panis should be called to prepare the necessary papers for the settlement of said case. Presentacion Blanco, a witness for the oppositors, also testified substantially to the foregoing facts. By the testimony of Trinidad Neyra and Atty. Alejandro M. Panis, and the other attesting witnesses, it has also been shown that Atty. Alejandro M. Panis came in the afternoon of the following day, November 2, 1942, and received instructions from Encarnacion Neyra, not only for the preparation of said agreement, but also for the preparation of a new will, and consequently Attorney Panis prepared said document of compromise and the will, dated November 3, 1942, which were both thumb marked, in duplicate, in the afternoon of that day, by Encarnacion Neyra, who was then of sound mind, as shown by her appearance and conversation, aided by a son of Trinidad Neyra, on her bed in the sala, in the presence of the attesting witnesses, Dr. Moises B. Abad, Dr. Eladio R. Aldecoa, and Atty. Alejandro M. Panis, who signed in the presence of the testatrix and of each other. Father Teodoro Garcia was also present at the signing of the will, at the request of Encarnacion Neyra, and so was Trinidad Neyra. On November 4, 1942, due to a heart attack as a consequence of Addisions disease, perhaps, Encarnacion Neyra expired, at about 3 oclock in the morning. Oppositor Teodoro Neyra, her young daughter Ceferina de la Cruz, and Presentacion Blanco, daughter of oppositor Maria Jacobo Vda. de Blanco, practically corroborated the testimony of the witnesses of the petitioner, with reference to the signing of documents, in the bedroom of Encarnacion Neyra, on November 3, 1942. Teodora Neyra, Presentacion Blanco and Ceferina de la Cruz, witnesses for the oppositors, testified, however, that when the thumb mark of Encarnacion Neyra was affixed, as stated above, to the document of compromise in question, dated November 3, 1942, she was sleeping on her bed in the sala; and that the attesting witnesses were not present, as they were in the caida. But Ceferina de la Cruz, witness for the oppositors, also stated that the attesting witnesses signed the documents thumb marked by Encarnacion Neyra, in the sala near her bed, thus contradicting herself and Teodora Neyra and Presentacion Blanco. Strange to say, Teodora Neyra, Presentacion Blanco and Ceferina de la Cruz also testified that Encarnacion Neyras thumb mark was affixed to the will, only in the morning of November 4, 1942, by Trinidad Neyra and Ildefonso del Barrio, when Encarnacion was already dead. The testimony of Dr. Dionisio Parulan, alleged medical expert, as to the nature and effects of Addisons disease, is absolutely unreliable. He had never seen or talked to the testatrix Encarnacion Neyra.

According to medical authorities, the cause or causes of the sleeping sickness, known as Addisons disease, are not yet fully known; that persons attacked by said disease often live as long as ten (10) years after the first attack, while others die after a few weeks only, and that as the disease progresses, asthenia sets in, and from 80 per cent to 90 per cent of the patients develop tuberculosis, and complications of the heart also appear. (Cecil, Textbook of Medicine, 3d ed., 1935, pp. 1250, 1252, 1253; MaCrae, Oslers Modern Medicine, 3d ed., Vol. V pp. 272-279). And it has been conclusively shown in this case that the testatrix Encarnacion Neyra, at the age of 48, died on November 4, 1942, due to a heart attack, after an illness of about two (2) years. In connection with testamentary capacity, in several cases, this court has considered the testimony of witnesses, who had known and talked to the testators, more trustworthy than the testimony of alleged medical experts. Testamentary capacity is the capacity to comprehend the nature of the transaction in which the testator is engaged at the time, to recollect the property to be disposed of, and the persons who would naturally be supposed to have claims upon the testator, and to comprehend the manner in which the instrument will distribute his property among the objects of his bounty. (Bugnao v. Ubag, 14 Phil., 163.) . Insomnia, in spite of the testimony of two doctors who testified for the opponents to the probate of a will, who stated that it tended to destroy mental capacity, was held not to affect the full possession of the mental faculties deemed necessary and sufficient for its execution. (Caguioa v. Calderon, 20 Phil., 400.) The testatrix was held to have been compos mentis, in spite of physicians testimony to the contrary, to the effect that she was very weak, being in the third or last stage of tuberculosis. (Yap Tua v. Yap Ca Kuan and Yap Ca Llu, 27 Phil., 579.) The testimony of the attending physician that the deceased was suffering from diabetes and had been in a comatose condition for several days, prior to his death, was held not sufficient to establish testamentary incapacity, in view of the positive statement of several credible witnesses that he was conscious and able to understand what said to him and to communicate his desires. (Samson v. Corrales Tan Quintin, 44 Phil., 573.) Where the mind of the testator is in perfectly sound condition, neither old age, nor ill health, nor the fact that somebody had to guide his hand in order that he might sign, is sufficient to invalidate his will. (Amata v. Tablizo, 48 Phil., 485.) Where it appears that a few hours and also a few days after the execution of the will, the testator intelligently and intelligibly conversed with other persons, although lying down and unable to move or stand up unassisted, but could still effect the sale of property belonging to him, these circumstances show that the testator was in a perfectly sound mental condition at the time of executing the will. (Amata and Almojuela v. Tablizo, 48 Phil., 485.) Presentacion Blanco, in the course of her cross-examination, frankly admitted that, in the morning and also at about 6 oclock in the afternoon of November 3, 1942, Encarnacion Neyra talked to her and that they understood each other clearly, thus showing that the testatrix was really of sound mind, at the time of the signing and execution of the agreement and will in question. It may, therefore, be reasonably concluded that the mental faculties of persons suffering from Addisons disease, like the testatrix in this case, remains unimpaired, partly due to the fact, on account of the sleep they enjoy, they necessarily receive the benefit of physical and mental rest. And that like patients suffering from tuberculosis, insomnia or diabetes, they preserve their mental faculties until the moments of their death.

Judging by the authorities above cited, the conclusion made by the trial court that the testatrix Encarnacion Neyra was of sound mind and possessed of testamentary capacity, at the time of the execution of the will, cannot be properly disturbed. The oppositors also claim that the attesting witnesses were not present, at the time that the testatrix thumb marked the will in question, on her bed, in the sala of the house, as they were allegedly in the caida. But it has been fully shown that the attesting witnesses were present at the time of the signing and execution of the agreement and will in question, in the sala, where the testatrix was lying on her bed. The true test is not whether they actually saw each other, at the time of the signing of the will, but whether they might have seen each other sign, had they chosen to do so; and the attesting witnesses actually saw it in this case. (Jaboneta v. Gustilo, 5 Phil., 541.) And the thumbmark placed by the testatrix on the will is equivalent to her signature. (Yap Tua v. Yap Ca Kuan and Yap Ca Llu, 27 Phil., 579.) The oppositors as well as their principal witnesses are all interested parties, as said oppositors had been named legatees in the will dated September 14, 1939, but eliminated from the will dated November 3, 1942. On the other hand, the witnesses for the petitioner are all trustworthy men, who had absolutely no interest in the final outcome of this case. Two of them are ministers of the Gospel, while the three attesting witnesses are professional men of irreproachable character, who had known and seen and talked to the testatrix. Furthermore, the testimony of the oppositors and their witnesses, to the effect that there could have been no reconciliation between the two sisters, and that the thumb mark of Encarnacion Neyra was affixed to the document embodying the agreement, while she was sleeping, on November 3, 1942, in their presence; and that her thumb mark was affixed to the will in question, when she was already dead, in the morning of November 4, 1942, within their view, is preposterous, to say the least. Said testimony is contrary to common sense. It violates all sense of proportion. The oppositors and their witnesses could not have told the truth; they have testified to brazen falsehoods; and they are, therefor, absolutely unworthy of belief. And to the evidence of the oppositors is completely applicable the rule falsus in uno, falsus in omnibus. (Gonzalez v. Mauricio, 53 Phil., 728, 735.) . In the brief presented by counsel for the oppositors and appellants, to show the alleged improbability of the reconciliation of the two sisters, and the execution of the will, dated November 3, 1942, they have erroneously placed great reliance on the fact that up to October 31, 1942, the two sisters Encarnacion and Trinidad Neyra were bitter enemies. They were banking evidently on the common belief that the hatred of relatives is the most violent. Dreadful indeed are the feuds of relatives, and difficult the reconciliation. But they have forgotten the fact that Encarnacion Neyra was a religious and pious woman instructed in the ancient virtues of Christian faith and hope and charity, and that it was godly to forgive and better still to forget. It was almost natural that there should have been reconciliation between the two sisters, Encarnacion and Trinidad Neyra, as the latter is the nearest relative of the former, her only sister of the whole blood. The approach of imminent death must have evoked in her the tenderest recollections of childhood. And believing perhaps that her little triumphs had not always brought her happiness, and that she had not always been fair to her sister, who, in fact, had successively instituted two suits against her, to recover what was her due, and for which Encarnacion believed she must atone, she finally decided upon

reconciliation, so that she might depart in peace. The record shows that, of the two, Encarnacion lived in great opulence, and that Trinidad had been demanding tenaciously her share; and as a Christian woman, Encarnacion must have known that no one has any right to enrich himself unjustly, at the expense of another. And it was, therefore, natural that Encarnacion should desire reconciliation with her sister Trinidad, and provide for her in her last will and testament. As for Eustaquio Mendoza, who, according to the evidence, had served Encarnacion Neyra for so many years and so well, it was also natural that she should make some provision for him, as gratituted is the noblest sentiment that springs from the heart. The conduct of Encarnacion Neyra, in making altogether a new will, with new beneficiaries named therein, including principally her bitterest enemy of late, which is completely uncompatible with the will, dated September 14, 1939, may really seem strange and unusual; but, as it has been truly said, above the logic of the head is the feeling of the heart, always understand, as in the case of intuitive knowledge of eternal verity. As Encarnacion Neyra, felt the advent of immortality, she naturally wanted to follow "the path of the just, which is as the shining light that shineth more and more unto the perfect day," so that her memory may be blessed. As a Christian woman, she must have loved justice, mercy and truth and to follow the law, for this is the whole duty of man. In the present case, the court cannot find any reason or justification to alter the conclusions set forth in the decree appealed from. This court will not reverse any findings of fact by the trial court made upon conflicting testimony and depending largely upon the credibility of witnesses, who testified in the presence of trial judge, unless the court below failed to take into consideration some of material facts or circumstances, or to weigh accurately all of the material facts and circumstances presented to it for consideration. (Baltazar v. Alberto, 33 Phil., 336; Melliza v. Towle, 34 Phil., 345; Caragay v. Urquiza, 53 Phil., 72, 79; Garcia v. Garcia de Bartolome, 63 Phil., 419.) . After a careful consideration of the evidence and the law in this case, we find it legally impossible to sustain any of the errors assigned by the appellants. The judgment appealed from is, therefore, affirmed, with costs against the appellants. So ordered.

Interpreting and applying this requirement this Court in the case of In re Estate of Saguinsin, 41 Phil., 875, 879, referring to the failure of the testator and his witnesses to sign on the left hand margin of every page, said: This defect is radical and totally vitiates the testament. It is not enough that the signatures guaranteeing authenticity should appear upon two folios or leaves; three pages having been written on, the authenticity of all three of them should be guaranteed by the signature of the alleged testatrix and her witn esses. In the case of Re estate of Saguinsin (41 Phil., 875), a will was likewise declared void which contained the necessary signatures on the margin of each leaf ( folio), but not in the margin of each page containing written matter.

[G.R. No. 13431. November 12, 1919. ] In re will of Ana Abangan. GERTRUDIS ABANGAN, executrix-appellee, v. ANASTACIA ABANGAN ET AL., opponents-appellants. 1. WILLS; ATTESTATION. In a will consisting of two sheets the first of which contains all the testamentary dispositions and is signed at the bottom by the testator and three witnesses and the second contains only the attestation clause and is signed also at the bottom by the three witnesses, it is not necessary that both sheets be further signed on their margins by the testator and the witnesses, or be paged. 2. ID.; ID; TESTATORS SIGNATURE. The testators signature is not necessary in the attestation clause because this, as its name implies, appertains only to the witnesses and not to the testator. 3. ID.; DIALECT IN WHICH WRITTEN; PRESUMPTION. The circumstance appearing in the will itself that same was executed in the city of Cebu and in the dialect of this locality where the testatrix was a neighbor is enough, in the absence of any proof to the contrary, to presume that she knew this dialect in which her will is written. On September 19, 1917, the Court of First Instance of Cebu admitted to probate Ana Abangans will executed July, 1916. From this decision the opponents appealed. Said document, duly probated as Ana Abangans will, consists of two sheets, the first of which contains all of the disposition of the testatrix, duly signed at the bottom by Martin Montalban (in the name and under the direction of the testatrix) and by three witnesses. The following sheet contains only the attestation clause duly signed at the bottom by the three instrumental witnesses. Neither of these sheets is signed on the left margin by the testatrix and the three witnesses, nor numbered by letters; and these omissions, according to appellants contention, are defects whereby the probate of the will should have been denied. We are of the opinion that the will was duly admitted to probate. In requiring that each and every sheet of the will should also be signed on the left margin by the testator and three witnesses in the presence of each other, Act No. 2645 (which is the one applicable in the case) evidently has for its object (referring to the body of the will itself) to avoid the substitution of any of said sheets, thereby changing the testators dispositions. But when these dispositions are wholly written on only one sheet signed at the bottom by the testator and three witnesses (as the instant case), their signatures on the left margin of said sheet would be completely purposeless. In requiring this signature on the margin, the statute took into consideration, undoubtedly, the case of a will written on several sheets and must have referred to the sheets which the testator and the witnesses do not have to sign at the bottom. A different interpretation would assume that the statute requires that this sheet, already signed at the bottom, be signed twice. We cannot attribute to the statute such an intention. As these signatures must be written by the testator and the witnesses in the presence of each other, it appears that, if the signatures at the bottom of the sheet guaranties its authenticity, another signature on its left margin would be unnecessary; and if they do not guaranty, same signatures, affixed on another part of same sheet, would add nothing. We cannot assume that the statute regards of such importance the place where the testator and the witnesses must sign on the sheet that it would consider that their signatures written on the bottom do not guaranty the authenticity of the sheet but, if repeated on the margin, give sufficient security. In requiring that each and every page of a will must be numbered correlatively in letters placed on the

upper part of the sheet, it is likewise clear that the object of Act No. 2645 is to know whether any sheet of the will has been removed. But, when all the dispositive parts of a will are written .on one sheet only, the object of the statute disappears because the removal of this single sheet, although unnumbered, cannot be hidden. What has been said is also applicable to the attestation clause. Wherefore, without considering whether or not this clause is an essential part of the will, we hold that in the one accompanying the will in question, the signatures of the testatrix and of the three witnesses on the margin and the numbering of the pages of the sheet are formalities not required by the statute. Moreover, referring specially to the signature of the testatrix, we can add that same is not necessary in the attestation clause because this, as its name implies, appertains only to the witnesses and not to the testator since the latter does not attest, but executes, the will. Synthesizing our opinion, we hold that in a will consisting of two sheets the first of which contains all the testamentary dispositions and is signed at the bottom by the testator and three witnesses and the second contains only the attestation clause and is signed also at the bottom by the three witnesses, it is not necessary that both sheets be further signed on their margins by the testator and the witnesses, or be paged. 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 demands more requisites entirely unnecessary, useless and frustrative of the testators last will, must be disregarded. As another ground for this appeal, it is alleged the records do not show that the testatrix knew the dialect in which the will is written. But the circumstance appearing in the will itself that same was executed in the city of Cebu and in the dialect of this locality where the testatrix was a neighbor is enough, in the absence of any proof to the contrary, to presume that she knew this dialect in which this will is written. For the foregoing considerations, the judgment appealed from is hereby affirmed with costs against the appellants. So ordered.

[G.R. No. L-1787. August 27, 1948. ] Testacy of Sixto Lopez. JOSE S. LOPEZ v. AGUSTIN LIBORO, Oppositor-Appellant. SYLLABUS 1. WILLS; PAGING; PURPOSE; OMISSION OF PAGE NUMBER SUPPLIED BY OTHER MEANS OF IDENTIFICATION. The purpose of the law in prescribing the paging of wills is to guard against fraud, and to afford means of preventing the substitution or of detecting the loss of any of its pages. (Abangan v. Abangan, 40 Phil., 476.) The omission to put a page number on a sheet, if that be necessary, may be supplied by other forms of identification more trustworthy than the conventional numeral words or characters. 2. ID.; EVIDENCE; WITNESSES, CREDIBILITY OF; CONTRADICTIONS ON INCIDENTS. contradictions in the testimony of the instrumental witnesses as are set out in the appellants brief are incidents, not all of which every one of the witnesses can be supposed to have perceived, or to recall in the same order in which they occurred. Far from being an evidence of falsehood, the contradictions constitute an evidence of good faith. 3. ID.; SIGNATURE BY MARK. A statute requiring a will to be "signed" is satisfied if the signature is made by the testators mark. 4. ID.; EVIDENCE; ADMISSION OF FURTHER EVIDENCE AFTER PARTY HAS RESTED; DISCRETION OF COURT. It is within the discretion of the court whether or not to admit further evidence after the party offering the evidence has rested, and this discretion will not be reviewed except where it has clearly been abused. 5. ID.; ID.; ADMISSION OF FURTHER EVIDENCE AFTER MOTION FOR NONSUIT OF DEMURRER TO EVIDENCE; DISCRETION OF COURT. It is within the sound discretion of the court whether or not it will allow the case to be reopened for the further introduction of evidence after a motion or request for a nonsuit, or a demurrer to the evidence, and the case may be reopened after the court has announced its intention as to its ruling on the request, motion, or demurrer, or has granted it or has denied the same, or after the motion has been granted, if the order has not been written, or entered upon the minutes or signed. 6. ID.; ID.; EVIDENCE ALLOWABLE AFTER DIRECT PROOFS. After the parties have produced their respective direct proofs, they are allowed to offer rebutting evidence only, but the court, for good reasons, in the furtherance of justice, may permit them to offer evidence upon their original case, and its ruling will not be disturbed in the appellate court where no abuse of discretion appears. (Siuliong & Co. v. Ylagan, 43 Phil., 393; U. S. v. Alviar, 36 Phil., 804.) So, generally, additional evidence is allowed when it is newly discovered, or where it has been omitted through inadvertence or mistake, or where the purpose of the evidence is to correct evidence previously offered. 7. ID.; LANGUAGE; KNOWLEDGE OF TESTATOR NEED NOT BE EXPRESSED IN WILL; PROOF "ALIUNDE." There is no statutory requirement that the testators understanding of the language used i n the will be expressed therein. It is a matter that may be established by proof aliunde. In the Court of First Instance of Batangas the appellant opposed unsuccessfully the probate of what purports to be the last will and testament (Exhibit A) of Don Sixto Lopez, who died at the age of 83 in Balayan, Batangas, on March 3, 1947, almost six months after the document in question was executed. In the court below, the present appellant specified five grounds for his opposition, to wit: (1) that the

deceased never executed the alleged will; (2) that his signature appearing in said will was a forgery; (3) that at the time of the execution of the will, he was wanting in testamentary as well as mental capacity due to advanced age; (4) that, if he did ever execute said will, it was not executed and attested as required by law, and one of the alleged instrumental witnesses was incapacitated to act as such; and it was procured by duress, influence of fear and threats and undue and improper pressure and influence on the part of the beneficiaries instituted therein, principally the testators sister, Clemencia Lopez, and the herein proponent, Jose S. Lopez; and (5) that the signature of the testator was procured by fraud or trick. In this instance only one of these objections is reiterated, formulated in these words: "That the court a quo erred in holding that the document Exhibit "A" was executed in all particulars as required by law." To this objection is added the alleged error of the court "in allowing the petitioner to introduce evidence that Exhibit "A" was written in a language known to the decedent after petitioner rested his case and over the vigorous objection of the oppositor."cralaw virtua1aw library The will in question comprises two pages, each of which is written on one side of a separate sheet. The first sheet is not paged either in letters or in Arabic numerals. This, the appellant believes, is a fatal defect. The purpose of the law in prescribing the paging of wills is to guard against fraud, and to afford means of preventing the substitution or of detecting the loss of any of its pages. (Abangan v. Abangan, 40 Phil., 476.) In the present case, the omission to put a page number on the first sheet, if that be necessary, is supplied by other forms of identification more trustworthy than the conventional numeral words or characters. The unnumbered page is clearly identified as the first page by the internal sense of its contents considered in relation to the contents of the second page. By their meaning and coherence, the first and second lines on the second page are undeniably a continuation of the last sentence of the testament, before the attestation clause, which starts at the bottom of the preceding page. Furthermore, the unnumbered page contains the caption "TESTAMENTO," the invocation of the Almighty, and a recital that the testator was in full use of his testamentary faculty, all of which, in the logical order of sequence, precede the direction for the disposition of the makers property. Again, as page two contains only the two lines above mentioned, the attestation clause, the mark of the testator and the signatures of the witnesses, the other sheet can not by any possibility be taken for other than page one. Abangan v. Abangan, supra, and Fernandez v. Vergel de Dios, 46 Phil., 922 are decisive of this issue. Although not falling within the purview and scope of the first assignment of error, the matter of the credibility of the witnesses is assailed under this heading. On the merits we do not believe that the appellants contention deserves serious consideration. Such contradictions in the testimony of the instrumental witnesses as are set out in the appellants brief are incidents not all of which every one of the witnesses can be supposed to have perceived, or to recall in the same order in which they occurred. "Everyday life and the result of investigations made in the field of experimental psychology show that the contradictions of witnesses generally occur in the details of a certain incident, after a long series of questionings, and far from being an evidence of falsehood constitute a demonstration of good faith. Inasmuch as not all those who witness an incident are impressed in like manner, it is but natural that in relating their impressions they should not agree in the minor details; hence, the contradictions in their testimony." (People v. Limbo, 49 Phil., 99.) The testator affixed his thumbmark to the instrument instead of signing his name. The reason for this was that the testator was suffering from "partial paralysis." While another in testators place might have directed someone else to sign for him, as appellant contends should have been done, there is nothing

curious or suspicious in the fact that the testator chose the use of mark as the means of authenticating his will. It was a matter of taste or preference. Both ways are good. A statute requiring a will to be "signed" is satisfied if the signature is made by the testators mark. (De Gala v. Gonzales and Ona, 53 Phil., 108; 28 R. C. L., 117.) With reference to the second assignment of error, we do not share the opinion that the trial court committed an abuse of discretion in allowing the appellant to offer evidence to prove knowledge of Spanish by the testator, the language in which the will is drawn, after the petitioner had rested his case and after the opponent had moved for dismissal of the petition on the ground of insufficiency of evidence. It is within the discretion of the court whether or not to admit further evidence after the party offering the evidence has rested, and this discretion will not be reviewed except where it has clearly been abused. (64 C. J., 160.) More, it is within the sound discretion of the court whether or not it will allow the case to be reopened for the further introduction of evidence after a motion or request for a nonsuit, or a demurrer to the evidence, and the case may be reopened after the court has announced its intention as to its ruling on the request, motion, or demurrer, or has granted it or has denied the same, or after the motion has been granted, if the order has not been written, or entered upon the minutes or signed. (64 C. J., 164.) In this jurisdiction this rule has been followed. After the parties have produced their respective direct proofs, they are allowed to offer rebutting evidence only, but, it has been held, the court, for good reasons, in the furtherance of justice, may permit them to offer evidence upon their original case, and its ruling will not be disturbed in the appellate court where no abuse of discretion appears. (Siuliong & Co. v. Ylagan, 43 Phil., 393; U. S. v. Alviar, 36 Phil., 804.) So, generally, additional evidence is allowed when it is newly discovered, or where it has been omitted through inadvertence or mistake, or where the purpose of the evidence is to correct evidence previously offered. (I Moran s Comments on the Rules of Court, 2d ed., 545; 64 C. J., 160-163.) The omission to present evidence on the testators knowledge of Spanish had not been deliberate. It was due to a misapprehension or oversight. Although alien to the second assignment of error, the appellant impugns the will for its silence on the testators understanding of the language used in the testament. There is no statutory requirement that such knowledge be expressly stated in the will itself. It is a matter that may be established by proof aliunde. This Court so impliedly ruled in Gonzales v. Laurel, 46 Phil., 781, in which the probate of a will written in Tagalog was ordered although it did not say that the testator knew that idiom. In fact, there was not even extraneous proof on the subject other than the fact that the testator resided in a Tagalog region, from which the court said "a presumption arises that said Maria Tapia knew the Tagalog dialect."cralaw virtua1aw library The order of the lower court ordering the probate of the last will and testament of Don Sixto Lopez is affirmed, with costs.

[G.R. No. L-5826. April 29, 1953. ] Testate estate of the late VICENTE CAGRO. JESUSA CAGRO v. PELAGIO CAGRO, ET AL SYLLABUS 1. WILLS; ATTESTATION CLAUSE; LACK OF SIGNATURES OF ATTESTING WITNESSES AT BOTTOM OF ATTESTATION CLAUSE, IS FATAL DEFECT. Inasmuch as the signatures of the three witnesses to the will do not appear at the bottom of the attestation clause, although the page containing the same is signed by the witnesses on the left-hand margin, the will is fatally defective. The attestation clause is "a memorandum of the facts attending the execution of the will" required by law to be made by the attesting witnesses, and it must necessarily bear their signatures. This is an appeal interposed by the oppositors from a decision of the Court of First Instance of Samar, admitting to probate the will allegedly executed by Vicente Cagro who died in Laoangan, Pambujan, Samar, on February 14, 1949. The main objection insisted upon by the appellants is that the will is fatally defective, because its attestation clause is not signed by the attesting witnesses. There is no question that the signatures of the three witnesses to the will do not appear at the bottom of the attestation clause, although the page containing the same is signed by the witnesses on the left-hand margin. We are of the opinion that the position taken by the appellant is correct. The attestation clause is "a memorandum of the facts attending the execution of the will" required by law to be made by the attesting witnesses, and it must necessarily bear their signatures. An unsigned attestation clause cannot be considered as an act of the witnesses, since the omission of their signatures at the bottom thereof negatives their participation. The petitioner and appellee contends that signatures of the three witnesses on the left-hand margin conform substantially to the law and may be deemed as their signatures to the attestation clause. This is untenable, because said signatures are in compliance with the legal mandate that the will be signed on the left-hand margin of all its pages. If an attestation clause not signed by the three witnesses at the bottom thereof, be admitted as sufficient, it would be easy to add such clause to a will on a subsequent occasion and in the absence of the testator and any or all of the witnesses. Wherefore, the appealed decision is reversed and the probate of the will in question denied. So ordered with costs against the petitioner and appellee.

G.R. Nos. L-3272-73

November 29, 1951

MANUEL GONZALES vs. MANOLITA GONZALES DE CARUNGCONG, petitioner-appellee; ALEJANDRO GONZALES, JR., and JUAN GONZALES, oppositors-appellants. SYLLABUS 1. WILLS; ATTESTATION CLAUSE MADE BY TESTATOR AND SIGNED BY WITNESSES, SUBSTANTIALLY COMPLIES WITH LAW. An attestation clause made by the testator himself more than by the instrumental witnesses, but signed by the latter right under the signature of the testator, substantially complies with the requirements of law. 2. ID.; ID.; STATEMENT OF SHEETS OR PAGES IN BODY OF WILL HELD SUFFICIENT WHEN CONSIDERED IN CONNECTION WITH ATTESTATION CLAUSE. The statement in the penultimate paragraph of the will as to the number of the sheets or pages used is sufficient attestation which may be considered in conjunction with the last paragraph which was herein held as the attestation clause. The law does not require the attestation to be contained in a single clause. 3. ID.; TESTAMENTARY CAPACITY; TESTIMONY OF ATTENDING PHYSICIAN PREVAILS OVER THAT OF TESTAMENTARY WITNESSES. Where the family physician attended the testatrix during her last illness and saw her on the day when the alleged document of revocation was executed, the testimony of the attesting witnesses tending to imply that the testatrix was of sound mind at the time said document was executed, cannot prevail over the contrary testimony of the attending physician. On November 27, 1948, Manuel Ibarra Vda. de Gonzales (hereafter to be referred to as testatrix) died at the age of about seventy-eight years, leaving five children, namely, Alejandro Gonzales, Leopoldo Gonzales, Manolita Gonzales de Carungcong, and Juan Gonzales. The estate left by her is estimated at P150,000.chanroblesvirtualawlibrary chanrobles virtual law library On December 22, 1948, Manuel Gonzales filed in the Court of First Instance of Rizal a petition (Special Proceeding No. 837) for the probate of an alleged will executed by the testatrix on November 16, 1942 (Exhibit B-Manuel Gonzales), devising to Manuel Gonzales the greater portion of the estate, without impairing the legitimes of the other children.chanroblesvirtualawlibrary chanrobles virtual law library On December 31, 1948, Manolita G. de Carungcong filed in the same court a petition (Special Proceeding No. 838) for the probate of another alleged will executed by the testatrix on May 5, 1945 (Exhibit 1Manolita G. Carungcong), leaving to Manolita G. de Carungcong the greater bulk of the estate, without impairing the legitimes of the other children.chanroblesvirtualawlibrary chanrobles virtual law library In his opposition filed on February 16, 1949, Alejandro Gonzales, Jr. sought the disallowance of the wills executed on November 16, 1942, and May 5, 1945, on the ground that, assuming their validity, they had been revoked by the testatrix in an instrument executed by her on November 18, 1948 (Exhibit 2Alejandro and Juan Gonzales), with the result that her estate should be distributed as if she died intestate.chanroblesvirtualawlibrary chanrobles virtual law library With the exception of Leopoldo Gonzales, the children of the testatrix filed mutual oppositions to one or the other instruments tending to negative their respective positions.chanroblesvirtualawlibrary chanrobles virtual law library

After a joint hearing, the Court of First Instance of Rizal rendered a decision with the following dispositive pronouncements: All facts considered in the light of the evidence presented and in the manner in which the witnesses testified the court concludes and holds: chanrobles virtual law library First: That Exhibit B - Manuel Gonzales, though validly executed on November 16, 1942, was revoked by Exhibit 1-Manolita G. Carungcong in accordance with the provisions of section 623 of the Code of Civil Procedure.chanroblesvirtualawlibrary chanrobles virtual law library Second: That Exhibit 2 - Alejandro and Juan Gonzales being executed without the knowledge and testamentary capacity of the testatrix and being contrary to the provisions of section 618 of the Code of Civil Procedure, the said document is hereby declared null and void.chanroblesvirtualawlibrary chanrobles virtual law library Third: That Exhibit 1 - Manolita G. Carungcong having been executed in accordance with law the same is hereby declared as the true and last will and testament of the deceased Manuela Ibarra Viuda de Gonzales, and said will is hereby admitted probate. From this judgment petitioner Manuel Gonzales and oppositors Alejandro Gonzales, Jr. and Juan Gonzales have appealed. The appeal as to Juan Gonzales was dismissed in view of his failure to pay the proportionate share of the printing cost of the record on appeal.chanroblesvirtualawlibrary chanrobles virtual law library In the parts material to the present appeal, the will executed by the testatrix on May 5, 1945, is of the following form and tenor: IKALABING-DALAWA. Na ang aking HULING BILIN AT TESTAMENTONG ito ay binubuo ng PITONG (7) dahon o pagina na may bilang na sunud-sunod at ang bawa't dahon o pagina ay mayroong tunay kong lagda o firma, gayon din ang lahat ng aking saksi o testigos.chanroblesvirtualawlibrary chanrobles virtual law library SA KATUNAYAN ng lahat ng isinasaysay ko dito ay aking nilagdaan ito dito sa Imus, Kavite, Filipinas ngayong ika-5 ng Mayo ng taong 1945, na nakaharap dito sa ating paglagda o pagfirma ang tatlong saksi o testigos. At aking ding nilagdaan o pinirmahan ang tagilirang kaliwa ng lahat at bawa't dahon o pagina nitong testamento kong ito sa harap ng lahat at bawa't isang saksi o testigos at ang lahat at bawa't isa naman sa kanila ay nangagsilagda o nagsifirma din dito bilang saksi ko sa harap ko at sa harap ng lahat at bawa't isa sa kanila, at ganoon din silang mga saksi ko ay nangag-lagda o nagsi-firma sa tagilirang kaliwa ng lahat at bawa't isa sa mga dahon o pagina nitong aking testamento. (Sgd.) MANUELA Y. VDA. DE GONZALES MANUELA IBARRA VDA. DE GONZALES Mga Saksi o Testigos: (Sgd.) BIENVENIDO DE LOS REYES (Sgd.) TAHIMIK T. SAYOC (Sgd.) LUIS GAERLAN

It is contended for the appellants that this will does not contain any attestation clause; that, assuming the concluding paragraph to be the attestation clause, it is not valid because it is the act of the testatrix and not of the witnesses, and because it does not state the number of sheets or pages of the will.chanroblesvirtualawlibrary chanrobles virtual law library In the very recent case of Valentina Cuevas vs. Pilar Achacoso, G.R. No. L-3497, decided May, 1951 * we sustained, finding a precedent in Aldaba vs. Roque, 43 Phil., 378, an attestation clause made by the testator and forming part of the body of the will. Through Mr. Justice Bautista, we held: The clause above quoted is the attestation clause referred to in the law which, in our opinion, substantially complies with its requirements. The only apparent anomaly we find is that it appears to be an attestation made by the testator himself more than by the instrumental witnesses. This apparent anomaly, however, is not in our opinion serious nor substantial as to affect the validity of the will, it appearing that right under the signature of the testator, there appear the signatures of the three instrumental witnesses.chanroblesvirtualawlibrary chanrobles virtual law library Instrumental witnesses, as defined by Escriche in his Diccionario Razobada de Legislacion, y Jurisprudencia, Vol. 4, p. 1115, is on who takes part in the execution of an instrument or writing" (in re will of Tan Diuco, 45 Phil., 807, 809). An instrumental witness, therefore, does not merely attest to the signature of the testator but also to the proper execution of the will. The fact that the three instrumental witnesses have signed the will immediately under the signature of the testator, shows that they have in fact attested not only to the genuineness of his signature but also to the due execution of the will as embodied in the attestation clause.chanroblesvirtualawlibrary chanrobles virtual law library The attestation clause in question bears also similarity with the attestation clause in the will involved in Aldaba vs. Roque, (43 Phil., 378). In that case, the attestation clause formed part of the body of the will and its recital was made by the testatrix herself and was signed by her and by the three instrumental witnesses. In upholding the validity of the will, the court said: chanrobles virtual law library In reality, it appears that it is the testatrix who makes the declaration about the points in the last paragraph of the will; however, as the witnesses, together with the testatrix, have signed the said declaration, we are of the opinion and so hold that the words above quoted of the testament constitute a sufficient compliance with the requirements of Act No. 2465. Of course three of the Justices of this Court concurred in the result, "in the possibility that the testator in the present case, or the person or persons who prepared the will had relied upon the ruling laid down in the case of Aldaba vs. Roque, supra, and that it would now be unfair to reject the present will when in its preparation a ruling of this Court has been followed." But the case at bar still falls within this view, the will (Exhibit 1-Manolita G. Carongcong) having been executed on May 5, 1945.chanroblesvirtualawlibrary chanrobles virtual law library The attestation clause contained in the body of the will being thus valid, the statement in the penultimate paragraph of the will hereinabove quoted as to the number of sheets or pages used, is sufficient attestation which may be considered in conjunction with the last paragraph. It is significant that the law does not require the attestation to be contained in a single clause. While perfection in the drafting of a will may be desirable, unsubstantial departure from the usual forms should be ignored, especially when the authenticity of the will is not assailed, as in this case.chanroblesvirtualawlibrary chanrobles virtual law library

The result reached in respect of the sufficiency of the will (Exhibit 1-Manolita G. Carongcong) necessarily disposes of the contention of the appellant Manuel Gonzales that the trial court erred in not admitting to probate the will (Exhibit B-Manuel Gonzales), since the latter will must be considered revoked by the subsequent will (Exhibit 1-Manolita G. Carongcong).chanroblesvirtualawlibrary chanrobles virtual law library What remains to be discussed is the claim of appellant Alejandro Gonzales, Jr. that the will (Exhibit 1Manolita G. Carongcong) has been revoked by the testatrix in the instrument of November 18, 1948 (Exhibit 2-Alejandro and Juan Gonzales) which provides as follows: Ako, MANUEL YBARRA VDA. DE GONZALES, may sapat na gulang at naninirahan sa ciudad ng Rizal, may mahusay at wastong pag-iisip at mabuting pagtatanda, sa pamamagitan ng kasulatang ito at bilang huling kapasiyahan ay sinasaysay ko ito at ipinahahayag sa ngayon sa alin mang testamento o huling habilin na napirmahan kong una sa kasulatang ito ay pinawawalan ko ng saysay at kabuluhang lahat pagkat hindi iyong tunay kong kalooban ngayon.chanroblesvirtualawlibrary chanrobles virtual law library Sa katunayan ng lahat ng ito at sa pagkat hindi ako makalagda ngayon ang pina-kiusapan si Constancio Padilla na ilagda ako sa kasulatang ito ngayon ika-17 ng Noviembre ng taong ito 1948, dito sa ciudad ng Pasay. Appellee Manolita G. de Carungcong, like Manuel Gonzales (as appellee), contends that the testatrix lacked the testamentary capacity when she allegedly executed the instrument of revocation, and their contention was sustained by the trial court. We have examined the record and found no valid reason for reversing the finding of said court which had the benefit of observing and hearing the witnesses testify. Upon the other hand, the following considerations amply support the appealed decision:.chanroblesvirtualawlibrary chanrobles virtual law library 1. For more than ten years prior to her death, the testatrix had suffered from hypertension. On November 14, 1948, she had aphasia and on November 15, 1948, she was taken to the hospital upon advice of the family physician, Dr. Jose C. Leveriza. In the letter introducing her to the hospital authorities (Exhibit EManuel Gonzales), Dr. Leveriza stated that the testatrix was suffering from hypertension and cerebral thrombosis. Particularly on November 18, 1948, when the alleged instrument of revocation was executed by her, the testatrix was in a comatose and unconscious state and could not talk or understand. The following is the testimony of Dr. Leveriza portraying the physical condition of the testatrix up to November 18, 1948: While appellant Alejandro Gonzales, Jr. has attempted to show that Dr. Leveriza was not an expert, the latters's testimony remains uncontradicted. The fact that the testimony of the attesting witnesses tends to imply that the testatrix was of sound mind at the time the alleged instrument of revocation was executed, cannot prevail over the findings of the attending physician, Dr. Leveriza, because even Dr. Ramon C. Talavera (an attesting witness) testified that although he had not examined the testatrix, her case appeared serious; that he had a hunch that "they were taking advantage of the last moment of the deceased and they were trying to make me an instrument in the accomplishment of their aims," and that he had the idea that the testatrix was in doubtful condition because he "could only judge from the people going there.".chanroblesvirtualawlibrary chanrobles virtual law library It is also argued that if the testatrix was in a comatose condition, Dr. Leveriza would not have ordered to "let her sit on bed or on chair and let her turn on her side sometime." However, Dr. Leveriza has given the

reason for this prescription, namely, to avoid hypostatic pneumonia.chanroblesvirtualawlibrary chanrobles virtual law library In support of the contention that the testimony of the attesting witnesses should be given more credence than the opinion of an expert witness, reliance is placed on the case of Caguioa vs. Calderon, 20 Phil., 400; Bagtas vs. Paguio, 22 Phil., 227; Galvez vs. Galvez, 26 Phil., 243; Samson vs. Corrales Tan Quintin, 44 Phil., 573; Amata vs. Tablizo, 48 Phil., 485, and Neyra vs. Neyra, 42, Off. Gaz., 2790 ** These cases are notably distinguishable from the case at bar. The former refer to situations in which the doctors were not in a position to certify definitely as the testamentary capacity of the testators at the time the wills therein involved were executed, because they had not observed the testators on said dates or never saw them; whereas the case now before us involves a family physician who attended the testatrix during her last illness and saw her on the day when the alleged instrument of revocation was executed.chanroblesvirtualawlibrary chanrobles virtual law library 2. We cannot help expressing our surprise at the fact that the instrument of revocation was allegedly executed on November 18, 1948, when, according to the testimony of Jose Padilla, the latter was asked by the testatrix to prepare the necessary document as early as in the month of May, 1948, and reminded about it for the second time weeks before November 1, 1948, and for the third time several days before the latter date (November 1, 1948). The first excuse given by Jose Padilla for the delay is that he was busy and the children of the testatrix had certain disputes which he tried to settle. The second excuse is that he was not able to secure soon enough from Alejandro Gonzales, Jr. some documents of transfer which he wanted to examine in connection with the preparation of the desired instrument of revocation. We are inclined to state that these excuses are rather poor. If Jose Padilla was too busy to give attention to the matter, he could have very easily informed the testatrix and the latter, if really desirous of revoking her former wills, would have employed another to prepare the requisite document. The fact that there were disputes between the children of the testatrix certainly was not an obstacle to the accomplishment of the wish of the testatrix. Neither was it necessary to examine the documents relating to the properties of the testatrix, since the instrument of revocation could be prepared without any reference to the details of her estate. Indeed, the instrument (Exhibit 2-Alejandro and Juan Gonzales) is couched in general terms.chanroblesvirtualawlibrary chanrobles virtual law library 3. Even under the theory of the appellant Alejandro Gonzales, Jr. it is hard to rule that the testatrix had sufficient testamentary capacity at the time of the execution of the alleged instrument of revocation. In the first place, Constancio Padilla (brother of Jose Padilla) merely asked the testatrix, first, if she was agreeable to the instrument of revocation prepared by Jose Padilla, and secondly, if she was agreeable to the signing of said document by Constancio Padilla, to which two questions the testatrix allegedly answered "Yes". It is not pretended that the testatrix said more about the matter or gave any further instruction. The attesting witnesses were not introduced to the testatrix, and their presence was not even mentioned to her. it is obviously doubtful whether the testatrix understood the meaning and extent of the ceremony. Assuming that the testatrix answered in the affirmative the two questions of Constancio Padilla, without more, we cannot fairly attribute to her manifestation of her desire to proceed, right then and there, with the signing of the questioned instrument. In other words, contrary to the recital of the attestation clause, the testatrix cannot rightly be said to have published her last will to the attesting witnesses.chanroblesvirtualawlibrary chanrobles virtual law library The appealed decision is, therefore, affirmed without costs. So ordered.chanroblesvirtualawlibrary

[G.R. NO. 122880 : April 12, 2006] FELIX AZUELA, Petitioner, v. COURT OF APPEALS The core of this petition is a highly defective notarial will, purportedly executed by Eugenia E. Igsolo (decedent), who died on 16 December 1982 at the age of 80. In refusing to give legal recognition to the due execution of this document, the Court is provided the opportunity to assert a few important doctrinal rules in the execution of notarial wills, all self-evident in view of Articles 805 and 806 of the Civil Code. A will whose attestation clause does not contain the number of pages on which the will is written is fatally defective. A will whose attestation clause is not signed by the instrumental witnesses is fatally defective. And perhaps most importantly, a will which does not contain an acknowledgment, but a mere jurat, is fatally defective. Any one of these defects is sufficient to deny probate. A notarial will with all three defects is just aching for judicial rejection. There is a distinct and consequential reason the Civil Code provides a comprehensive catalog of imperatives for the proper execution of a notarial will. Full and faithful compliance with all the detailed requisites under Article 805 of the Code leave little room for doubt as to the validity in the due execution of the notarial will. Article 806 likewise imposes another safeguard to the validity of notarial wills - that they be acknowledged before a notary public by the testator and the witnesses. A notarial will executed with indifference to these two codal provisions opens itself to nagging questions as to its legitimacy. The case stems from a petition for probate filed on 10 April 1984 with the Regional Trial Court (RTC) of Manila. The petition filed by petitioner Felix Azuela sought to admit to probate the notarial will of Eugenia E. Igsolo, which was notarized on 10 June 1981. Petitioner is the son of the cousin of the decedent. The will, consisting of two (2) pages and written in the vernacular Pilipino, read in full: HULING HABILIN NI EUGENIA E. IGSOLO SA NGALAN NG MAYKAPAL, AMEN: AKO, si EUGENIA E. IGSOLO, nakatira sa 500 San Diego St., Sampaloc, Manila, pitongput siyam (79) na gulang, nasa hustong pagi-isip, pag-unawa at memoria ay nag-hahayag na ito na ang aking huling habilin at testamento, at binabali wala ko lahat ang naunang ginawang habilin o testamento: Una-Hinihiling ko na ako ay mailibing sa Sementerio del Norte, La Loma sang-ayong sa kaugalian at patakaran ng simbahang katoliko at ang taga-pag-ingat (Executor) ng habiling ito ay magtatayo ng bantayog upang silbing ala-ala sa akin ng aking pamilya at kaibigan; Pangalawa-Aking ipinagkakaloob at isinasalin ang lahat ng karapatan sa aking pamangkin na si Felix Azuela, na siyang nag-alaga sa akin sa mahabang panahon, yaong mga bahay na nakatirik sa lote numero 28, Block 24 at nakapangalan sa Pechaten Korporasyon, ganoon din ibinibigay ko ang lahat ng karapatan sa bahay na nakatirik sa inoopahan kong lote, numero 43, Block 24 na pag-aari ng Pechaten Corporation. Ipinagkakaloob kong buong buo ang lahat ng karapatan sa bahay at lupa na nasa 500 San Diego St., Lot 42,

Block 24, Sampaloc, Manila kay Felix Azuela at ang pagkakaloob kong ito ay walang pasubali't at kondiciones; Pangatlo - Na ninunumbrahan ko si VART PAGUE na siyang nagpapatupad ng huling habiling ito at kagustuhan ko rin na hindi na kailanman siyang mag-lagak ng piyansiya. Aking nilagdaan ang Huling Habilin na ito dito sa Maynila ika 10 ng Hunyo, 1981. (Sgd.) EUGENIA E. IGSOLO (Tagapagmana) PATUNAY NG MGA SAKSI Ang kasulatang ito, na binubuo ng ____ dahon pati ang huling dahong ito, na ipinahayag sa amin ni Eugenia E. Igsolo, tagapagmana na siya niyang Huling Habilin, ngayon ika-10 ng Hunyo 1981, ay nilagdaan ng nasabing tagapagmana sa ilalim ng kasulatang nabanggit at sa kaliwang panig ng lahat at bawa't dahon, sa harap ng lahat at bawa't sa amin, at kami namang mga saksi ay lumagda sa harap ng nasabing tagapagmana at sa harap ng lahat at bawa't isa sa amin, sa ilalim ng nasabing kasulatan at sa kaliwang panig ng lahat at bawa't dahon ng kasulatan ito. EUGENIA E. IGSOLO address: 500 San Diego St. Sampaloc, Manila Res. Cert. No. A-7717-37 Issued at Manila on March 10, 1981. QUIRINO AGRAVA address: 1228-Int. 3, Kahilum Pandacan, Manila Res. Cert. No. A-458365 Issued at Manila on Jan. 21, 1981 LAMBERTO C. LEAO address: Avenue 2, Blcok 7, Lot 61, San Gabriel, G.MA., Cavite Res. Cert. No. A-768277 issued at Carmona, Cavite on Feb. 7, 1981 JUANITO ESTRERA address: City Court Compound, City of Manila Res. Cert. No. A574829 Issued at Manila on March 2, 1981. Nilagdaan ko at ninotario ko ngayong 10 ng Hunyo 10, 1981 dito sa Lungsod ng Maynila.

(Sgd.) PETRONIO Y. BAUTISTA Doc. No. 1232 ; NOTARIO PUBLIKO Page No. 86 ; Until Dec. 31, 1981 Book No. 43 ; PTR-152041-1/2/81-Manila Series of 1981 TAN # 1437-977-81 The three named witnesses to the will affixed their signatures on the left-hand margin of both pages of the will, but not at the bottom of the attestation clause. The probate petition adverted to only two (2) heirs, legatees and devisees of the decedent, namely: petitioner himself, and one Irene Lynn Igsolo, who was alleged to have resided abroad. Petitioner prayed that the will be allowed, and that letters testamentary be issued to the designated executor, Vart Prague. The petition was opposed by Geralda Aida Castillo (Geralda Castillo), who represented herself as the attorney-in-fact of "the 12 legitimate heirs" of the decedent.2 Geralda Castillo claimed that the will is a forgery, and that the true purpose of its emergence was so it could be utilized as a defense in several court cases filed by oppositor against petitioner, particularly for forcible entry and usurpation of real property, all centering on petitioner's right to occupy the properties of the decedent. 3 It also asserted that contrary to the representations of petitioner, the decedent was actually survived by 12 legitimate heirs, namely her grandchildren, who were then residing abroad. Per records, it was subsequently alleged that decedent was the widow of Bonifacio Igsolo, who died in 1965,4 and the mother of a legitimate child, Asuncion E. Igsolo, who predeceased her mother by three (3) months.5 Oppositor Geralda Castillo also argued that the will was not executed and attested to in accordance with law. She pointed out that decedent's signature did not appear on the second page of the will, and the will was not properly acknowledged. These twin arguments are among the central matters to this petition. After due trial, the RTC admitted the will to probate, in an Order dated 10 August 1992. 6 The RTC favorably took into account the testimony of the three (3) witnesses to the will, Quirino Agrava, Lamberto Leano, and Juanito Estrada. The RTC also called to fore "the modern tendency in respect to the formalities in the execution of a will x x x with the end in view of giving the testator more freedom in expressing his last wishes;"7 and from this perspective, rebutted oppositor's arguments that the will was not properly executed and attested to in accordance with law. After a careful examination of the will and consideration of the testimonies of the subscribing and attesting witnesses, and having in mind the modern tendency in respect to the formalities in the execution of a will, i.e., the liberalization of the interpretation of the law on the formal requirements of a will with the end in view of giving the testator more freedom in expressing his last wishes, this Court is persuaded to rule that the will in question is authentic and had been executed by the testatrix in accordance with law. On the issue of lack of acknowledgement, this Court has noted that at the end of the will after the signature of the testatrix, the following statement is made under the sub-title, "Patunay Ng Mga Saksi": "Ang kasulatang ito, na binubuo ng _____ dahon pati ang huling dahong ito, na ipinahayag sa amin ni Eugenia N. Igsolo, tagapagmana na siya niyang Huling Habilin, ngayong ika-10 ng Hunyo 1981, ay nilagdaan ng nasabing tagapagmana sa ilalim ng kasulatang nabanggit at sa kaliwang panig ng lahat at bawa't dahon,

sa harap ng lahat at bawa't sa amin, at kami namang mga saksi ay lumagda sa harap ng nasabing tagapagmana at sa harap ng lahat at bawa't isa sa amin, sa ilalim ng nasabing kasulatan at sa kaliwang panig ng lahat at bawa't dahon ng kasulatan ito." The aforequoted declaration comprises the attestation clause and the acknowledgement and is considered by this Court as a substantial compliance with the requirements of the law. On the oppositor's contention that the attestation clause was not signed by the subscribing witnesses at the bottom thereof, this Court is of the view that the signing by the subscribing witnesses on the left margin of the second page of the will containing the attestation clause and acknowledgment, instead of at the bottom thereof, substantially satisfies the purpose of identification and attestation of the will. With regard to the oppositor's argument that the will was not numbered correlatively in letters placed on upper part of each page and that the attestation did not state the number of pages thereof, it is worthy to note that the will is composed of only two pages. The first page contains the entire text of the testamentary dispositions, and the second page contains the last portion of the attestation clause and acknowledgement. Such being so, the defects are not of a serious nature as to invalidate the will. For the same reason, the failure of the testatrix to affix her signature on the left margin of the second page, which contains only the last portion of the attestation clause and acknowledgment is not a fatal defect. As regards the oppositor's assertion that the signature of the testatrix on the will is a forgery, the testimonies of the three subscribing witnesses to the will are convincing enough to establish the genuineness of the signature of the testatrix and the due execution of the will.8 The Order was appealed to the Court of Appeals by Ernesto Castillo, who had substituted his since deceased mother-in-law, Geralda Castillo. In a Decision dated 17 August 1995, the Court of Appeals reversed the trial court and ordered the dismissal of the petition for probate. 9 The Court of Appeals noted that the attestation clause failed to state the number of pages used in the will, thus rendering the will void and undeserving of probate.10 Hence, the present petition. Petitioner argues that the requirement under Article 805 of the Civil Code that "the number of pages used in a notarial will be stated in the attestation clause" is merely directory, rather than mandatory, and thus susceptible to what he termed as "the substantial compliance rule."11 The solution to this case calls for the application of Articles 805 and 806 of the Civil Code, which we replicate in full. Art. 805. Every will, other than a holographic will, must be subscribed at the end thereof by the testator himself or by the testator's name written by some other person in his presence, and by his express direction, and attested and subscribed by three or more credible witnesses in the presence of the testator and of one another. The testator or the person requested by him to write his name and the instrumental witnesses of the will, shall also sign, as aforesaid, each and every page thereof, except the last, on the left margin, and all the pages shall be numbered correlatively in letters placed on the upper part of each page. The attestation shall state the number of pages used upon which the will is written, and the fact that the testator signed the will and every page thereof, or caused some other person to write his name, under his

express direction, in the presence of the instrumental witnesses, and that the latter witnessed and signed the will and all the pages thereof in the presence of the testator and of one another. If the attestation clause is in a language not known to the witnesses, it shall be interpreted to them. Art. 806. Every will must be acknowledged before a notary public by the testator and the witnesses. The notary public shall not be required to retain a copy of the will, or file another with the office of the Clerk of Court. The appellate court, in its Decision, considered only one defect, the failure of the attestation clause to state the number of pages of the will. But an examination of the will itself reveals several more deficiencies. As admitted by petitioner himself, the attestation clause fails to state the number of pages of the will. 12 There was an incomplete attempt to comply with this requisite, a space having been allotted for the insertion of the number of pages in the attestation clause. Yet the blank was never filled in; hence, the requisite was left uncomplied with. The Court of Appeals pounced on this defect in reversing the trial court, citing in the process Uy Coque v. Navas L. Sioca13 and In re: Will of Andrada.14 In Uy Coque, the Court noted that among the defects of the will in question was the failure of the attestation clause to state the number of pages contained in the will.15 In ruling that the will could not be admitted to probate, the Court made the following consideration which remains highly relevant to this day: "The purpose of requiring the number of sheets to be stated in the attestation clause is obvious; the document might easily be so prepared that the removal of a sheet would completely change the testamentary dispositions of the will and in the absence of a statement of the total number of sheets such removal might be effected by taking out the sheet and changing the numbers at the top of the following sheets or pages. If, on the other hand, the total number of sheets is stated in the attestation clause the falsification of the document will involve the inserting of new pages and the forging of the signatures of the testator and witnesses in the margin, a matter attended with much greater difficulty."16 The case of In re Will of Andrada concerned a will the attestation clause of which failed to state the number of sheets or pages used. This consideration alone was sufficient for the Court to declare "unanim[ity] upon the point that the defect pointed out in the attesting clause is fatal."17 It was further observed that "it cannot be denied that the x x x requirement affords additional security against the danger that the will may be tampered with; and as the Legislature has seen fit to prescribe this requirement, it must be considered material."18 Against these cited cases, petitioner cites Singson v. Florentino19 and Taboada v. Hon. Rosal,20 wherein the Court allowed probate to the wills concerned therein despite the fact that the attestation clause did not state the number of pages of the will. Yet the appellate court itself considered the import of these two cases, and made the following distinction which petitioner is unable to rebut, and which we adopt with approval: Even a cursory examination of the Will (Exhibit "D"), will readily show that the attestation does not state the number of pages used upon which the will is written. Hence, the Will is void and undeserving of probate.

We are not impervious of the Decisions of the Supreme Court in "Manuel Singson v. Emilia Florentino, et al., 92 Phil. 161 and Apolonio [Taboada] v. Hon. Avelino Rosal, et al., 118 SCRA 195," to the effect that a will may still be valid even if the attestation does not contain the number of pages used upon which the Will is written. However, the Decisions of the Supreme Court are not applicable in the aforementioned appeal at bench. This is so because, in the case of "Manuel Singson v. Emilia Florentino, et al., supra," although the attestation in the subject Will did not state the number of pages used in the will, however, the same was found in the last part of the body of the Will: The law referred to is article 618 of the Code of Civil Procedure, as amended by Act No. 2645, which requires that the attestation clause shall state the number of pages or sheets upon which the will is written, which requirement has been held to be mandatory as an effective safeguard against the possibility of interpolation or omission of some of the pages of the will to the prejudice of the heirs to whom the property is intended to be bequeathed (In re Will of Andrada, 42 Phil. 180; Uy Coque v. Navas L. Sioca, 43 Phil., 405; Gumban v. Gorcho, 50 Phil. 30; Quinto v. Morata, 54 Phil. 481; Echevarria v. Sarmiento, 66 Phil. 611). The ratio decidendi of these cases seems to be that the attestation clause must contain a statement of the number of sheets or pages composing the will and that if this is missing or is omitted, it will have the effect of invalidating the will if the deficiency cannot be supplied, not by evidence aliunde, but by a consideration or examination of the will itself. But here the situation is different. While the attestation clause does not state the number of sheets or pages upon which the will is written, however, the last part of the body of the will contains a statement that it is composed of eight pages, which circumstance in our opinion takes this case out of the rigid rule of construction and places it within the realm of similar cases where a broad and more liberal view has been adopted to prevent the will of the testator from being defeated by purely technical considerations." (page 165-165, supra) (Underscoring supplied) In "Apolonio Tabaoda v. Hon. Avelino Rosal, et al." supra, the notarial acknowledgement in the Will states the number of pages used in the: We have examined the will in question and noticed that the attestation clause failed to state the number of pages used in writing the will. This would have been a fatal defect were it not for the fact that, in this case, it is discernible from the entire will that it is really and actually composed of only two pages duly signed by the testatrix and her instrumental witnesses. As earlier stated, the first page which contains the entirety of the testamentary dispositions is signed by the testatrix at the end or at the bottom while the instrumental witnesses signed at the left margin. The other page which is marked as "Pagina dos" comprises the attestation clause and the acknowledgment. The acknowledgment itself states that "this Last Will and Testament consists of two pages including this page" (pages 200-201, supra) (Underscoring supplied). However, in the appeal at bench, the number of pages used in the will is not stated in any part of the Will. The will does not even contain any notarial acknowledgment wherein the number of pages of the will should be stated.21 Both Uy Coque and Andrada were decided prior to the enactment of the Civil Code in 1950, at a time when the statutory provision governing the formal requirement of wills was Section 618 of the Code of Civil Procedure.22 Reliance on these cases remains apropos, considering that the requirement that the attestation state the number of pages of the will is extant from Section 618. 23 However, the enactment of the Civil Code in 1950 did put in force a rule of interpretation of the requirements of wills, at least insofar as the attestation clause is concerned, that may vary from the

philosophy that governed these two cases. Article 809 of the Civil Code states: "In the absence of bad faith, forgery, or fraud, or undue and improper pressure and influence, defects and imperfections in the form of attestation or in the language used therein shall not render the will invalid if it is proved that the will was in fact executed and attested in substantial compliance with all the requirements of article 805." In the same vein, petitioner cites the report of the Civil Code Commission, which stated that "the underlying and fundamental objective permeating the provisions on the [law] on [wills] in this project consists in the [liberalization] of the manner of their execution with the end in view of giving the testator more [freedom] in [expressing] his last wishes. This objective is in accord with the [modern tendency] in respect to the formalities in the execution of wills."24 However, petitioner conveniently omits the qualification offered by the Code Commission in the very same paragraph he cites from their report, that such liberalization be "but with sufficient safeguards and restrictions to prevent the commission of fraud and the exercise of undue and improper pressure and influence upon the testator." 25 Caneda v. Court of Appeals26 features an extensive discussion made by Justice Regalado, speaking for the Court on the conflicting views on the manner of interpretation of the legal formalities required in the execution of the attestation clause in wills.27 Uy Coque and Andrada are cited therein, along with several other cases, as examples of the application of the rule of strict construction. 28 However, the Code Commission opted to recommend a more liberal construction through the "substantial compliance rule" under Article 809. A cautionary note was struck though by Justice J.B.L. Reyes as to how Article 809 should be applied: x x x The rule must be limited to disregarding those defects that can be supplied by an examination of the will itself: whether all the pages are consecutively numbered; whether the signatures appear in each and every page; whether the subscribing witnesses are three or the will was notarized. All these are facts that the will itself can reveal, and defects or even omissions concerning them in the attestation clause can be safely disregarded. But the total number of pages, and whether all persons required to sign did so in the presence of each other must substantially appear in the attestation clause, being the only check against perjury in the probate proceedings.29 (Emphasis supplied.) The Court of Appeals did cite these comments by Justice J.B.L. Reyes in its assailed decision, considering that the failure to state the number of pages of the will in the attestation clause is one of the defects which cannot be simply disregarded. In Caneda itself, the Court refused to allow the probate of a will whose attestation clause failed to state that the witnesses subscribed their respective signatures to the will in the presence of the testator and of each other, 30 the other omission cited by Justice J.B.L. Reyes which to his estimation cannot be lightly disregarded. Caneda suggested: "[I]t may thus be stated that the rule, as it now stands, is that omission which can be supplied by an examination of the will itself, without the need of resorting to extrinsic evidence, will not be fatal and, correspondingly, would not obstruct the allowance to probate of the will being assailed. However, those omissions which cannot be supplied except by evidence aliunde would result in the invalidation of the attestation clause and ultimately, of the will itself."31 Thus, a failure by the attestation clause to state that the testator signed every page can be liberally construed, since that fact can be checked by a visual examination; while a failure by the attestation clause to state that the witnesses signed in one another's presence should be considered a fatal flaw since the attestation is the only textual guarantee of compliance.32 The failure of the attestation clause to state the number of pages on which the will was written remains a fatal flaw, despite Article 809. The purpose of the law in requiring the clause to state the number of pages

on which the will is written is to safeguard against possible interpolation or omission of one or some of its pages and to prevent any increase or decrease in the pages.33 The failure to state the number of pages equates with the absence of an averment on the part of the instrumental witnesses as to how many pages consisted the will, the execution of which they had ostensibly just witnessed and subscribed to. Following Caneda, there is substantial compliance with this requirement if the will states elsewhere in it how many pages it is comprised of, as was the situation in Singson and Taboada. However, in this case, there could have been no substantial compliance with the requirements under Article 805 since there is no statement in the attestation clause or anywhere in the will itself as to the number of pages which comprise the will. At the same time, Article 809 should not deviate from the need to comply with the formal requirements as enumerated under Article 805. Whatever the inclinations of the members of the Code Commission in incorporating Article 805, the fact remains that they saw fit to prescribe substantially the same formal requisites as enumerated in Section 618 of the Code of Civil Procedure, convinced that these remained effective safeguards against the forgery or intercalation of notarial wills.34 Compliance with these requirements, however picayune in impression, affords the public a high degree of comfort that the testator himself or herself had decided to convey property post mortem in the manner established in the will.35 The transcendent legislative intent, even as expressed in the cited comments of the Code Commission, is for the fruition of the testator's incontestable desires, and not for the indulgent admission of wills to probate. The Court could thus end here and affirm the Court of Appeals. However, an examination of the will itself reveals a couple of even more critical defects that should necessarily lead to its rejection. For one, the attestation clause was not signed by the instrumental witnesses. While the signatures of the instrumental witnesses appear on the left-hand margin of the will, they do not appear at the bottom of the attestation clause which after all consists of their averments before the notary public. Cagro v. Cagro36 is material on this point. As in this case, "the signatures of the three witnesses to the will do not appear at the bottom of the attestation clause, although the page containing the same is signed by the witnesses on the left-hand margin."37 While three (3) Justices38 considered the signature requirement had been substantially complied with, a majority of six (6), speaking through Chief Justice Paras, ruled that the attestation clause had not been duly signed, rendering the will fatally defective. There is no question that the signatures of the three witnesses to the will do not appear at the bottom of the attestation clause, although the page containing the same is signed by the witnesses on the left-hand margin. We are of the opinion that the position taken by the appellant is correct. The attestation clause is "a memorandum of the facts attending the execution of the will" required by law to be made by the attesting witnesses, and it must necessarily bear their signatures. An unsigned attestation clause cannot be considered as an act of the witnesses, since the omission of their signatures at the bottom thereof negatives their participation. The petitioner and appellee contends that signatures of the three witnesses on the left-hand margin conform substantially to the law and may be deemed as their signatures to the attestation clause. This is untenable, because said signatures are in compliance with the legal mandate that the will be signed on the left-hand margin of all its pages. If an attestation clause not signed by the three witnesses at the bottom thereof, be admitted as sufficient, it would be easy to add such clause to a will on a subsequent occasion and in the absence of the testator and any or all of the witnesses. 39

The Court today reiterates the continued efficacy of Cagro. Article 805 particularly segregates the requirement that the instrumental witnesses sign each page of the will, from the requisite that the will be "attested and subscribed by [the instrumental witnesses]." The respective intents behind these two classes of signature are distinct from each other. The signatures on the left-hand corner of every page signify, among others, that the witnesses are aware that the page they are signing forms part of the will. On the other hand, the signatures to the attestation clause establish that the witnesses are referring to the statements contained in the attestation clause itself. Indeed, the attestation clause is separate and apart from the disposition of the will. An unsigned attestation clause results in an unattested will. Even if the instrumental witnesses signed the left-hand margin of the page containing the unsigned attestation clause, such signatures cannot demonstrate these witnesses' undertakings in the clause, since the signatures that do appear on the page were directed towards a wholly different avowal. The Court may be more charitably disposed had the witnesses in this case signed the attestation clause itself, but not the left-hand margin of the page containing such clause. Without diminishing the value of the instrumental witnesses' signatures on each and every page, the fact must be noted that it is the attestation clause which contains the utterances reduced into writing of the testamentary witnesses themselves. It is the witnesses, and not the testator, who are required under Article 805 to state the number of pages used upon which the will is written; the fact that the testator had signed the will and every page thereof; and that they witnessed and signed the will and all the pages thereof in the presence of the testator and of one another. The only proof in the will that the witnesses have stated these elemental facts would be their signatures on the attestation clause. Thus, the subject will cannot be considered to have been validly attested to by the instrumental witnesses, as they failed to sign the attestation clause. Yet, there is another fatal defect to the will on which the denial of this petition should also hinge. The requirement under Article 806 that "every will must be acknowledged before a notary public by the testator and the witnesses" has also not been complied with. The importance of this requirement is highlighted by the fact that it had been segregated from the other requirements under Article 805 and entrusted into a separate provision, Article 806. The non-observance of Article 806 in this case is equally as critical as the other cited flaws in compliance with Article 805, and should be treated as of equivalent import. In lieu of an acknowledgment, the notary public, Petronio Y. Bautista, wrote " Nilagdaan ko at ninotario ko ngayong 10 ng Hunyo 10 (sic), 1981 dito sa Lungsod ng Maynila."40 By no manner of contemplation can those words be construed as an acknowledgment. An acknowledgment is the act of one who has executed a deed in going before some competent officer or court and declaring it to be his act or deed. 41 It involves an extra step undertaken whereby the signor actually declares to the notary that the executor of a document has attested to the notary that the same is his/her own free act and deed. It might be possible to construe the averment as a jurat, even though it does not hew to the usual language thereof. A jurat is that part of an affidavit where the notary certifies that before him/her, the document was subscribed and sworn to by the executor.42 Ordinarily, the language of the jurat should avow that the document was subscribed and sworn before the notary public, while in this case, the notary public averred that he himself "signed and notarized" the document. Possibly though, the word " ninotario" or "notarized" encompasses the signing of and swearing in of the executors of the document, which in this case would involve the decedent and the instrumental witnesses.

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

G.R. No. L-15025 March 15, 1920 In the matter of the estate of REMIGIA SAGUINSIN, deceased. ARCADIO DEL ROSARIO, applicant-appellant, JOSE A. DEL PRADO, ET. AL., legatees-appellants, vs. RUFINA SAGUINSIN, opponent-appellee.

Fernando Manikis and Gibbs, McDonough & Johnson for applicant and appellant. No appearance for legatees and appellants. Claro M. Recto for appellee. There was presented in the Court of First Instance of the city of Manila for allowance an instrument which the petitioner calls the will of Remigia Saguinsin. It is a manuscript signed by the alleged testatrix and three witnesses on October 3, 1918, the conclusion of which says: "I, the testatrix, sign in the presence of the witnesses this will written by D. Lino Mendoza at my request and under my direction." (Yo, la testadora, firmo en presencia de los testigos este testamento que ha escrito D. Lino Mendoza a mi ruego y bajo mi direccion.)--Then follows a signature and then these expressions: "The testatrix signed in our presence and each of us signed in the presence of the others." (La testadora ha firmado en nuestra presencia y cada uno de nosotros en presencia de los demas.) "Witness who wrote this will at the request and under the free and voluntary personal direction of the testatrix herself." (Testigo que escribio este testamento a ruego y bajo la libre y voluntaria direccion personal de la misma testadora.) (Sgd.) Lino Mendoza "Attesting witnesses." (Testigos del testamento.) Then come three signatures. These three signature together with that of the alleged testatrix are written also on the left margin of the firs page or folio and on the third page or second folio, but not on the second page or reverse side of the first page where, as is seen, the manuscript is continued, the second folio not containing anything but the date and the and of the manuscript. Under these, conditions the instrument was impugned by a sister of the alleged testatrix and after the taking of the declaration of the authors of the signatures which appear three times and in different parts of the manuscript, the court declared that the document attached to the record could not be allowed as a will. Certain person who allege themselves to be legatees appealed jointly with the lawyer for the petitioner. And upon considering the case on appeal, this court decides: That, in conformity with Act No. 2645, amendatory to section 618 of the Code of Civil Procedure, the concluding part of the will does not express what that law, under pain of nullity, requires. Section 618, as amended, says: "The attestation shall state the number of sheets or pages used upon which the will is written . . . ." None of these requirements appear in the attesting clause at the end of the document presented. The second page, i.e., what is written on the reverse side of the first, engenders the doubt whether what is written thereon was ordered written by the alleged testatrix or was subsequently added

by the same hand that drew the first page and the date that appears on the third. With this non-fulfillment alone of Act No. 2645 it is impossible to allow the so-called will which violates said law. That besides this violation there is another as evident as the preceding. Said Act No. 2645 provides: "The testator or the person requested by him to write his name and the instrumental witnesses of the will shall also sign, as aforesaid, each and every page thereof, on the left margin, and said pages shall be numbered correlatively in letters placed on the upper part of each sheet." The English text differs from the Spanish text: the former say only pages (paginas) while the latter puts (hojas). "Hoja," according to the Diccionario de la Academia, "is with respect to books or notebooks folio." According to the same dictionary "pagina (page) is each of one of the two faces or planes of the leaf of a book or notebook; that which is written or printed on each page, for example I have read only two pages of this book." Two pages constitute one leaf. One page represents only one-half of one leaf. The English text requires that the signature which guarantees the genuineness of the testament shall be placed on the left hand margin of each page and that each page should be numbered by letter in the upper part This requirement is entirely lacking on the second page that is, on the reverse side of the first. According to the old method of paging "folio 1. y su vto." that is, first folio and the reverse side, should have been stated, and the second page would then have been included in the citation. By the failure to comply with this requisite the law has been obviously violated. In the English text the word "pages" does not leave any room for doubt and it is invariably used in the text of the law, whereas in the Spanish text, "hoja" and "pagina" are used indifferently as may be seen in the following part which says: "el atestiguamiento hara constar el numero de hojas o paginas utiles en que esta extendido el testamento." This failure to comply with the law also vitiates the will and invalidates it, as the second page is lacking in authenticity. This is a defect so radical that there is no way by which what is written on the reverse side of the first folio may be held valid. It is possible that this document consists of only the two folios numbered 1 and 2, and that on the reverse side of number 2 nothing may have been written upon the order of the testatrix, the testament ending at the foot of the first folio with the legacy "To my nephew Catalino Ignacio, pesos 200" (A mi sobrino Catalino Ignacio doscientos pesos) and from that part then immediately follows folio No. 2 "Manila a tres de Octubre de mil novecientos diez y ocho.--Yo la testadora firmo en presencia etc." (Manila, October 3, 1918, I, the testatrix, sign in the presence of etc.) There is nothing which guarantees all the contents of page 2. The margin of this page is absolutely blank. there is nothing which gives the assurance that the testatrix ordered the insertion of all the contents of page 2. It may very well be that it was subsequently added thereby substituting the will of the testatrix, a result for the prevention of which this manner of authenticity by affixing the signature on each page and not merely on each folio was provided for by law. This defect is radical and totally vitiates the testament. It is not enough that the signatures guaranteeing authenticity should appear upon two folios or leaves; three pages having been written, the authenticity of all three of them should be guaranteed with the signature of the alleged testatrix and her witnesses. The English text which requires the signing of pages and not merely leaves or folios should prevail. it is so provided in section 15 of the Administrative Code (Act No. 2711). The judgment appealed from is affirmed, with costs of this instance against the appellant.

G.R. No. L-20357

November 25, 1967

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

MAGLASANG V. HEIRS OF CABATINGAN 383 SCRA 6 FACTS: Conchita issued deeds of donation in favor of petitioners conveying parcels of land, houses, and other properties. After her death, respondents sought the annulment of the deeds, claiming to be not in conformity with formalities of a will, being donations mortis causa. HELD: If a donation is of mortis causa, it should conform with formalities of a will for it to be valid. Otherwise, it shall be void.

G.R. No. L-32213 November 26, 1973 AGAPITA N. CRUZ, petitioner, vs. HON. JUDGE GUILLERMO P. VILLASOR, Presiding Judge of Branch I, Court of First Instance of Cebu, and MANUEL B. LUGAY, respondents. ESGUERRA, J.: Petition to review on certiorari the judgment of the Court First Instance of Cebu allowing the probate of the last will a testament of the late Valente Z. Cruz. Petitioner-appellant Agapita N. Cruz, the surviving spouse of the said decease opposed the allowance of the will (Exhibit "E"), alleging the will was executed through fraud, deceit, misrepresentation and undue influence; that the said instrument was execute without the testator having been fully informed of the content thereof, particularly as to what properties he was disposing and that the supposed last will and testament was not executed in accordance with law. Notwithstanding her objection, the Court allowed the probate of the said last will and testament Hence this appeal by certiorari which was given due course. The only question presented for determination, on which the decision of the case hinges, is whether the supposed last will and testament of Valente Z. Cruz (Exhibit "E") was executed in accordance with law, particularly Articles 805 and 806 of the new Civil Code, the first requiring at least three credible witnesses to attest and subscribe to the will, and the second requiring the testator and the witnesses to acknowledge the will before a notary public. Of the three instrumental witnesses thereto, namely Deogracias T. Jamaloas Jr., Dr. Francisco Paares and Atty. Angel H. Teves, Jr., one of them, the last named, is at the same time the Notary Public before whom the will was supposed to have been acknowledged. Reduced to simpler terms, the question was attested and subscribed by at least three credible witnesses in the presence of the testator and of each other, considering that the three attesting witnesses must appear before the notary public to acknowledge the same. As the third witness is the notary public himself, petitioner argues that the result is that only two witnesses appeared before the notary public to acknowledge the will. On the other hand, private respondent-appellee, Manuel B. Lugay, who is the supposed executor of the will, following the reasoning of the trial court, maintains that there is substantial compliance with the legal requirement of having at least three attesting witnesses even if the notary public acted as one of them, bolstering up his stand with 57 American Jurisprudence, p. 227 which, insofar as pertinent, reads as follows: It is said that there are, practical reasons for upholding a will as against the purely technical reason that one of the witnesses required by law signed as certifying to an acknowledgment of the testator's signature under oath rather than as attesting the execution of the instrument. After weighing the merits of the conflicting claims of the parties, We are inclined to sustain that of the appellant that the last will and testament in question was not executed in accordance with law. The notary public before whom the will was acknowledged cannot be considered as the third instrumental witness since he cannot acknowledge before himself his having signed the will. To acknowledge before means to avow (Javellana v. Ledesma, 97 Phil. 258, 262; Castro v. Castro, 100 Phil. 239, 247); to own as genuine, to assent, to admit; and "before" means in front or preceding in space or ahead of. (The New Webster Encyclopedic Dictionary of the English Language, p. 72; Funk & Wagnalls New Standard Dictionary of the English Language, p. 252; Webster's New International Dictionary 2d. p. 245.) Consequently, if the third witness were the notary public himself, he would have to avow assent, or admit his having signed the will in front of himself. This cannot be done because he cannot split his personality into two so that one will

appear before the other to acknowledge his participation in the making of the will. To permit such a situation to obtain would be sanctioning a sheer absurdity. Furthermore, the function of a notary public is, among others, to guard against any illegal or immoral arrangement Balinon v. De Leon, 50 0. G. 583.) That function would defeated if the notary public were one of the attesting instrumental witnesses. For them he would be interested sustaining the validity of the will as it directly involves him and the validity of his own act. It would place him in inconsistent position and the very purpose of acknowledgment, which is to minimize fraud (Report of Code Commission p. 106-107), would be thwarted. Admittedly, there are American precedents holding that notary public may, in addition, act as a witness to the executive of the document he has notarized. (Mahilum v. Court Appeals, 64 0. G. 4017; 17 SCRA 482; Sawyer v. Cox, 43 Ill. 130). There are others holding that his signing merely as notary in a will nonetheless makes him a witness thereon (Ferguson v. Ferguson, 47 S. E. 2d. 346; In Re Douglas Will, N. Y. S. 2d. 641; Ragsdal v. Hill, 269 S. W. 2d. 911, Tyson Utterback, 122 So. 496; In Re Baybee's Estate 160 N. 900; W. Merill v. Boal, 132 A. 721;See also Trenwith v. Smallwood, 15 So. 1030). But these authorities do not serve the purpose of the law in this jurisdiction or are not decisive of the issue herein because the notaries public and witnesses referred to aforecited cases merely acted as instrumental, subscribing attesting witnesses, and not as acknowledging witnesses. He the notary public acted not only as attesting witness but also acknowledging witness, a situation not envisaged by Article 805 of the Civil Code which reads: ART. 806. Every will must be acknowledged before a notary public by the testator and the witnesses. The notary public shall not be required to retain a copy of the will or file another with the office of the Clerk of Court. [Emphasis supplied] To allow the notary public to act as third witness, or one the attesting and acknowledging witnesses, would have the effect of having only two attesting witnesses to the will which would be in contravention of the provisions of Article 80 be requiring at least three credible witnesses to act as such and of Article 806 which requires that the testator and the required number of witnesses must appear before the notary public to acknowledge the will. The result would be, as has been said, that only two witnesses appeared before the notary public for or that purpose. In the circumstances, the law would not be duly in observed. FOR ALL THE FOREGOING, the judgment appealed from is hereby reversed and the probate of the last will and testament of Valente Z. Cruz (Exhibit "E") is declared not valid and hereby set aside. Cost against the appellee.

G.R. No. 74695 September 14, 1993 In the Matter of the Probate of the Last Will and Testament of the Deceased Brigido Alvarado, CESAR ALVARADO, petitioner, vs. HON. RAMON G. GAVIOLA, JR., Presiding Justice, HON. MA. ROSARIO QUETULIO LOSA and HON. LEONOR INES LUCIANO, Associate Justices, Intermediate Appellate Court, First Division (Civil Cases), and BAYANI MA. RINO, respondents. Before us is an appeal from the Decision dated 11 April 1986 1 of the First Civil Cases Division of the then Intermediate Appellate Court, now Court of Appeals, which affirmed the Order dated 27 June 1983 2 of the Regional Trial Court of Sta. Cruz, Laguna, admitting to probate the last will and testament 3 with codicil 4 of the late Brigido Alvarado. On 5 November 1977, the 79-year old Brigido Alvarado executed a notarial will entitled "Huling Habilin" wherein he disinherited an illegitimate son (petitioner) and expressly revoked a previously executed holographic will at the time awaiting probate before Branch 4 of the Regional Trial Court of sta. Cruz, Laguna. As testified to by the three instrumental witnesses, the notary public and by private respondent who were present at the execution, the testator did not read the final draft of the will himself. Instead, private respondent, as the lawyer who drafted the eight-paged document, read the same aloud in the presence of the testator, the three instrumental witnesses and the notary public. The latter four followed the reading with their own respective copies previously furnished them. Meanwhile, Brigido's holographic will was subsequently admitted to probate on 9 December 1977. On the 29th day of the same month, a codicil entitled "Kasulatan ng Pagbabago sa Ilang Pagpapasiya na Nasasaad sa Huling Habilin na may Petsa Nobiembre 5, 1977 ni Brigido Alvarado" was executed changing some dispositions in the notarial will to generate cash for the testator's eye operation. Brigido was then suffering from glaucoma. But the disinheritance and revocatory clauses were unchanged. As in the case of the notarial will, the testator did not personally read the final draft of the codicil. Instead, it was private respondent who read it aloud in his presence and in the presence of the three instrumental witnesses (same as those of the notarial will) and the notary public who followed the reading using their own copies. A petition for the probate of the notarial will and codicil was filed upon the testator's death on 3 January 1979 by private respondent as executor with the Court of First Instance, now Regional Trial Court, of Siniloan, Laguna. 5Petitioner, in turn, filed an Opposition on the following grounds: that the will sought to be probated was not executed and attested as required by law; that the testator was insane or otherwise mentally incapacitated to make a will at the time of its execution due to senility and old age; that the will was executed under duress, or influence of fear and threats; that it was procured by undue and improper pressure and influence on the part of the beneficiary who stands to get the lion's share of the testator's estate; and lastly, that the signature of the testator was procured by fraud or trick. When the oppositor (petitioner) failed to substantiate the grounds relied upon in the Opposition, a Probate Order was issued on 27 June 1983 from which an appeal was made to respondent court. The main thrust of the appeal was that the deceased was blind within the meaning of the law at the time his "Huling Habilin" and the codicil attached thereto was executed; that since the reading required by Art. 808 of the Civil Code was admittedly not complied with, probate of the deceased's last will and codicil should have been denied.

On 11 April 1986, the Court of Appeals rendered the decision under review with the following findings: that Brigido Alvarado was not blind at the time his last will and codicil were executed; that assuming his blindness, the reading requirement of Art. 808 was substantially complied with when both documents were read aloud to the testator with each of the three instrumental witnesses and the notary public following the reading with their respective copies of the instruments. The appellate court then concluded that although Art. 808 was not followed to the letter, there was substantial compliance since its purpose of making known to the testator the contents of the drafted will was served. The issues now before us can be stated thus: Was Brigido Alvarado blind for purpose of Art, 808 at the time his "Huling Habilin" and its codicil were executed? If so, was the double-reading requirement of said article complied with? Regarding the first issue, there is no dispute on the following facts: Brigido Alvarado was not totally blind at the time the will and codicil were executed. However, his vision on both eyes was only of "counting fingers at three (3) feet" by reason of the glaucoma which he had been suffering from for several years and even prior to his first consultation with an eye specialist on 14 December 1977. The point of dispute is whether the foregoing circumstances would qualify Brigido as a "blind" testator under Art. 808 which reads: Art. 808. If the testator is blind, the will shall be read to him twice; once, by one of the subscribing witnesses, and again, by the notary public before whom the will is acknowledged. Petitioner contends that although his father was not totally blind when the will and codicil were executed, he can be so considered within the scope of the term as it is used in Art. 808. To support his stand, petitioner presented before the trial court a medical certificate issued by Dr. Salvador R. Salceda, Director of the Institute of Opthalmology (Philippine Eye Research Institute), 6 the contents of which were interpreted in layman's terms by Dr. Ruperto Roasa, whose expertise was admitted by private respondent. 7 Dr. Roasa explained that although the testator could visualize fingers at three (3) feet, he could no longer read either printed or handwritten matters as of 14 December 1977, the day of his first consultation. 8 On the other hand, the Court of Appeals, contrary to the medical testimony, held that the testator could still read on the day the will and the codicil were executed but chose not to do so because of "poor eyesight." 9 Since the testator was still capable of reading at that time, the court a quo concluded that Art. 808 need not be complied with. We agree with petitioner in this respect. Regardless of respondent's staunch contention that the testator was still capable of reading at the time his will and codicil were prepared, the fact remains and this was testified to by his witnesses, that Brigido did not do so because of his "poor," 10 "defective," 11 or "blurred" 12 vision making it necessary for private respondent to do the actual reading for him. The following pronouncement in Garcia vs. Vasquez 13 provides an insight into the scope of the term "blindness" as used in Art. 808, to wit:

The rationale behind the requirement of reading the will to the testator if he is blind or incapable of reading the will himself (as when he is illiterate), is to make the provisions thereof known to him, so that he may be able to object if they are not in accordance with his wishes . . . Clear from the foregoing is that Art. 808 applies not only to blind testators but also to those who, for one reason or another, are "incapable of reading the(ir) will(s)." Since Brigido Alvarado was incapable of reading the final drafts of his will and codicil on the separate occasions of their execution due to his "poor," "defective," or "blurred" vision, there can be no other course for us but to conclude that Brigido Alvarado comes within the scope of the term "blind" as it is used in Art. 808. Unless the contents were read to him, he had no way of ascertaining whether or not the lawyer who drafted the will and codicil did so confortably with his instructions. Hence, to consider his will as validly executed and entitled to probate, it is essential that we ascertain whether Art. 808 had been complied with. Article 808 requires that in case of testators like Brigido Alvarado, the will shall be read twice; once, by one of the instrumental witnesses and, again, by the notary public before whom the will was acknowledged. The purpose is to make known to the incapacitated testator the contents of the document before signing and to give him an opportunity to object if anything is contrary to his instructions. That Art. 808 was not followed strictly is beyond cavil. Instead of the notary public and an instrumental witness, it was the lawyer (private respondent) who drafted the eight-paged will and the five-paged codicil who read the same aloud to the testator, and read them only once, not twice as Art. 808 requires. Private respondent however insists that there was substantial compliance and that the single reading suffices for purposes of the law. On the other hand, petitioner maintains that the only valid compliance or compliance to the letter and since it is admitted that neither the notary public nor an instrumental witness read the contents of the will and codicil to Brigido, probate of the latter's will and codicil should have been disallowed. We sustain private respondent's stand and necessarily, the petition must be denied. This Court has held in a number of occasions that substantial compliance is acceptable where the purpose of the law has been satisfied, the reason being that the solemnities surrounding the execution of wills are intended to protect the testator from all kinds of fraud and trickery but are never intended to be so rigid and inflexible as to destroy the testamentary privilege. 14 In the case at bar, private respondent read the testator's will and codicil aloud in the presence of the testator, his three instrumental witnesses, and the notary public. Prior and subsequent thereto, the testator affirmed, upon being asked, that the contents read corresponded with his instructions. Only then did the signing and acknowledgement take place. There is no evidence, and petitioner does not so allege, that the contents of the will and codicil were not sufficiently made known and communicated to the testator. On the contrary, with respect to the "Huling Habilin," the day of the execution was not the first time that Brigido had affirmed the truth and authenticity of the contents of the draft. The uncontradicted testimony of Atty. Rino is that Brigido Alvarado already acknowledged that the will was drafted in accordance with his expressed wishes even prior to 5 November 1977 when Atty. Rino went to the testator's residence precisely for the purpose of securing his conformity to the draft. 15 Moreover, it was not only Atty. Rino who read the documents on 5 November and 29 December 1977. The notary public and the three instrumental witnesses likewise read the will and codicil, albeit silently. Afterwards, Atty. Nonia de la Pena (the notary public) and Dr. Crescente

O. Evidente (one of the three instrumental witnesses and the testator's physician) asked the testator whether the contents of the document were of his own free will. Brigido answered in the affirmative. 16 With four persons following the reading word for word with their own copies, it can be safely concluded that the testator was reasonably assured that what was read to him (those which he affirmed were in accordance with his instructions), were the terms actually appearing on the typewritten documents. This is especially true when we consider the fact that the three instrumental witnesses were persons known to the testator, one being his physician (Dr. Evidente) and another (Potenciano C. Ranieses) being known to him since childhood. The spirit behind the law was served though the letter was not. Although there should be strict compliance with the substantial requirements of the law in order to insure the authenticity of the will, the formal imperfections should be brushed aside when they do not affect its purpose and which, when taken into account, may only defeat the testator's will. 17 As a final word to convince petitioner of the propriety of the trial court's Probate Order and its affirmance by the Court of Appeals, we quote the following pronouncement in Abangan v. Abangan, 18 to wit: The object of the solemnities surrounding the execution of wills is to close the door against bad faith and fraud, to avoid the substitution of wills and testaments and to guaranty their truth and authenticity. Therefore the laws on the subject should be interpreted in such a way as to attain these primordial ends. But, on the other hand, also one must not lose sight of the fact that it is not the object of the law to restrain and curtail the exercise of the right to make a will. So when an interpretation already given assures such ends, any other interpretation whatsoever, that adds nothing but demands more requisites entirely unnecessary, useless and frustrative of the testator's will, must be disregarded (emphasis supplied). Brigido Alvarado had expressed his last wishes in clear and unmistakable terms in his "Huling Habilin" and the codicil attached thereto. We are unwilling to cast these aside fro the mere reason that a legal requirement intended for his protection was not followed strictly when such compliance had been rendered unnecessary by the fact that the purpose of the law, i.e., to make known to the incapacitated testator the contents of the draft of his will, had already been accomplished. To reiterate, substantial compliance suffices where the purpose has been served. WHEREFORE, the petition is DENIED and the assailed Decision of respondent Court of Appeals dated 11 April 1986 is AFFIRMED. Considering the length of time that this case has remained pending, this decision is immediately executory. Costs against petitioner. SO ORDERED.

G.R. No. L-12190

August 30, 1958

TESTATE ESTATE OF FELICIDAD ESGUERRA ALTO-YAP deceased. FAUSTO E. GAN, petitioner-appellant, vs. ILDEFONSO YAP, oppositor-appellee. On November 20, 1951, Felicidad Esguerra Alto Yap died of heart failure in the University of Santo Tomas Hospital, leaving properties in Pulilan, Bulacan, and in the City of Manila. On March 17, 1952, Fausto E. Gan initiated them proceedings in the Manila court of first instance with a petition for the probate of a holographic will allegedly executed by the deceased, substantially in these words: Nobyembre 5, 1951. Ako, si Felicidad E. Alto-Yap, may asawa, at ganap na pag-iisip, ay nagsasalaysay na ang aking kayamanan sa bayan ng Pulilan, Bulacan ay aking ipinamamana sa aking mga kamag-anakang sumusunod: Vicente Esguerra, Sr. ............................................. Fausto E. Gan ......................................................... Rosario E. Gan ......................................................... Filomena Alto .......................................................... Beatriz Alto .............................................................. 5 Bahagi 2 Bahagi 2 Bahagi 1 Bahagi 1 Bahagi

At ang aking lahat ng ibang kayamanan sa Maynila at iba panglugar ay aking ipinamamana sa aking asawang si Idelfonso D. Yap sa kondisyong siya'y magpapagawa ng isang Health Center na nagkakahalaga ng di kukulangin sa halagang P60,000.00 sa bayan ng Pulilan, Bulacan, na nakaukit ang aking pangalang Felicidad Esguerra-Alto. At kung ito ay may kakulangan man ay bahala na ang aking asawa ang magpuno upang matupad ang aking kagustuhan. (Lagda) Felicidad E. Alto-Yap. Opposing the petition, her surviving husband Ildefonso Yap asserted that the deceased had not left any will, nor executed any testament during her lifetime. After hearing the parties and considering their evidence, the Hon. Ramon R. San Jose, Judge, 1 refused to probate the alleged will. A seventy-page motion for reconsideration failed. Hence this appeal. The will itself was not presented. Petitioner tried to establish its contents and due execution by the statements in open court of Felina Esguerra, Primitivo Reyes, Socorro Olarte and Rosario Gan Jimenez, whose testimonies may be summarized as follows:

Sometime in 1950 after her last trip abroad, Felicidad Esguerra mentioned to her first cousin, Vicente Esguerra, her desire to make a will. She confided however that it would be useless if her husband discovered or knew about it. Vicente consulted with Fausto E. Gan, nephew of Felicidad, who was then preparing for the bar examinations. The latter replied it could be done without any witness, provided the document was entirely in her handwriting, signed and dated by her. Vicente Esguerra lost no time in transmitting the information, and on the strength of it, in the morning of November 5, 1951, in her residence at Juan Luna Street, Manila, Felicidad wrote, signed and dated a holographic will substantially of the tenor above transcribed, in the presence of her niece, Felina Esguerra (daughter of Vicente), who was invited to read it. In the afternoon of that day, Felicidad was visited by a distant relative, Primitivo Reyes, and she allowed him to read the will in the presence of Felina Esguerra, who again read it. Nine days later, he had other visitors: Socorro Olarte a cousin, and Rosario Gan Jimenez, a niece. To these she showed the will, again in the presence of Felina Esguerra, who read it for the third time. When on November 19, 1951, Felicidad was confined at the U.S.T. Hospital for her last illness, she entrusted the said will, which was contained in a purse, to Felina Esguerra. But a few hours later, Ildefonso Yap, her husband, asked Felina for the purse: and being afraid of him by reason of his well-known violent temper, she delivered it to him. Thereafter, in the same day, Ildefonso Yap returned the purse to Felina, only to demand it the next day shortly before the death of Felicidad. Again, Felina handed it to him but not before she had taken the purse to the toilet, opened it and read the will for the last time.2 From the oppositor's proof it appears that Felicidad Esguerra had been suffering from heart disease for several years before her death; that she had been treated by prominent physicians, Dr. Agerico Sison, Dr. Agustin Liboro and others; that in May 1950 husband and wife journeyed to the United States wherein for several weeks she was treated for the disease; that thereafter she felt well and after visiting interesting places, the couple returned to this country in August 1950. However, her ailment recurred, she suffered several attacks, the most serious of which happened in the early morning of the first Monday of November 1951 (Nov. 5). The whole household was surprised and alarmed, even the teachers of the Harvardian Colleges occupying the lower floors and of by the Yap spouses. Physician's help was hurriedly called, and Dr. Tanjuaquio arrived at about 8:00 a.m., found the patient hardly breathing, lying in bed, her head held high by her husband. Injections and oxygen were administered. Following the doctor's advice the patient stayed in bed, and did nothing the whole day, her husband and her personal attendant, Mrs. Bantique, constantly at her side. These two persons swore that Mrs. Felicidad Esguerra Yap made no will, and could have made no will on that day. The trial judge refused to credit the petitioner's evidence for several reasons, the most important of which were these: (a) if according to his evidence, the decedent wanted to keep her will a secret, so that her husband would not know it, it is strange she executed it in the presence of Felina Esguerra, knowing as she did that witnesses were unnecessary; (b) in the absence of a showing that Felina was a confidant of the decedent it is hard to believe that the latter would have allowed the former to see and read the will several times; (c) it is improbable that the decedent would have permitted Primitivo Reyes, Rosario Gan Jimenez and Socorro Olarte to read her will, when she precisely wanted its contents to remain a secret during her lifetime; (d) it is also improbable that her purpose being to conceal the will from her husband she would carry it around, even to the hospital, in her purse which could for one reason or another be opened by her husband; (e) if it is true that the husband demanded the purse from Felina in the U.S.T. Hospital and that the will was there, it is hard to believe that he returned it without destroying the will, the theory of the petitioner being precisely that the will was executed behind his back for fear he will destroy it.

In the face of these improbabilities, the trial judge had to accept the oppositor's evidence that Felicidad did not and could not have executed such holographic will. In this appeal, the major portion of appellant's brief discussed the testimony of the oppositor and of his witnesses in a vigorous effort to discredit them. It appears that the same arguments, or most of them, were presented in the motion to reconsider; but they failed to induce the court a quo to change its mind. The oppositor's brief, on the other hand, aptly answers the criticisms. We deem it unnecessary to go over the same matters, because in our opinion the case should be decided not on the weakness of the opposition but on the strength of the evidence of the petitioner, who has the burden of proof. The Spanish Civil Code permitted the execution of holographic wills along with other forms. The Code of Civil Procedure (Act 190) approved August 7, 1901, adopted only one form, thereby repealing the other forms, including holographic wills. The New Civil Code effective in 1950 revived holographic wills in its arts. 810-814. "A person may execute a holographic will which must be entirely written, dated, and signed by the hand of the testator himself. It is subject to no other form and may be made in or out of the Philippines, and need not be witnessed." This is indeed a radical departure from the form and solemnities provided for wills under Act 190, which for fifty years (from 1901 to 1950) required wills to be subscribed by the testator and three credible witnesses in each andevery page; such witnesses to attest to the number of sheets used and to the fact that the testator signed in their presence and that they signed in the presence of the testator and of each other. The object of such requirements it has been said, is to close the door against bad faith and fraud, to prevent substitution of wills, to guarantee their truth and authencity (Abangan vs. Abangan, 40 Phil., 476) and to avoid those who have no right to succeed the testator would succeed him and be benefited with the probate of same. (Mendoza vs. Pilapil, 40 Off. Gaz., 1855). However, formal imperfections may be brushed aside when authenticity of the instrument is duly proved. (Rodriguez vs Yap, 40 Off. Gaz. 1st Supp. No. 3 p. 194.) Authenticity and due execution is the dominant requirements to be fulfilled when such will is submitted to the courts for allowance. For that purpose the testimony of one of the subscribing witnesses would be sufficient if there is no opposition (Sec. 5, Rule 77). If there is, the three must testify, if available. (Cabang vs. Delfinado, 34 Phil., 291; Tolentino vs. Francisco, 57 Phil., 742). From the testimony of such witnesses (and of other additional witnesses) the court may form its opinion as to the genuineness and authenticity of the testament, and the circumstances its due execution. Now, in the matter of holographic wills, no such guaranties of truth and veracity are demanded, since as stated, they need no witnesses; provided however, that they are "entirely written, dated, and signed by the hand of the testator himself." The law, it is reasonable to suppose, regards the document itself as material proof of authenticity, and as its own safeguard, since it could at any time, be demonstrated to be or not to be in the hands of the testator himself. "In the probate of a holographic will" says the New Civil Code, "it shall be necessary that at least one witness who knows the handwriting and signature of the testator explicitly declare that the will and the signature are in the handwriting of the testator. If the will is contested, at least three such witnesses shall be required. In the absence of any such witnesses, (familiar with decedent's handwriting) and if the court deem it necessary, expert testimony may be resorted to."

The witnesses so presented do not need to have seen the execution of the holographic will. They may be mistaken in their opinion of the handwriting, or they may deliberately lie in affirming it is in the testator's hand. However, the oppositor may present other witnesses who also know the testator's handwriting, or some expert witnesses, who after comparing the will with other writings or letters of the deceased, have come to the conclusion that such will has not been written by the hand of the deceased. (Sec. 50, Rule 123). And the court, in view of such contradictory testimony may use its own visual sense, and decide in the face of the document, whether the will submitted to it has indeed been written by the testator. Obviously, when the will itself is not submitted, these means of opposition, and of assessing the evidence are not available. And then the only guaranty of authenticity3 the testator's handwriting has disappeared. Therefore, the question presents itself, may a holographic will be probated upon the testimony of witnesses who have allegedly seen it and who declare that it was in the handwriting of the testator? How can the oppositor prove that such document was not in the testator's handwriting? His witnesses who know testator's handwriting have not examined it. His experts can not testify, because there is no way to compare the alleged testament with other documents admittedly, or proven to be, in the testator's hand. The oppositor will, therefore, be caught between the upper millstone of his lack of knowledge of the will or the form thereof, and the nether millstone of his inability to prove its falsity. Again the proponent's witnesses may be honest and truthful; but they may have been shown a faked document, and having no interest to check the authenticity thereof have taken no pains to examine and compare. Or they may be perjurers boldly testifying, in the knowledge that none could convict them of perjury, because no one could prove that they have not "been shown" a document which they believed was in the handwriting of the deceased. Of course, the competency of such perjured witnesses to testify as to the handwriting could be tested by exhibiting to them other writings sufficiently similar to those written by the deceased; but what witness or lawyer would not foresee such a move and prepare for it? His knowledge of the handwriting established, the witness (or witnesses) could simply stick to his statement: he has seen and read a document which he believed was in the deceased's handwriting. And the court and the oppositor would practically be at the mercy of such witness (or witnesses) not only as to the execution, but also as to the contents of the will. Does the law permit such a situation? The Rules of Court, (Rule 77) approved in 1940 allow proof (and probate) of a lost or destroyed will by secondary evidence the testimony of witnesses, in lieu of the original document. Yet such Rules could not have contemplated holographic wills which could not then be validly made here. (See also Sec. 46, Rule 123; Art. 830-New Civil Code.) Could Rule 77 be extended, by analogy, to holographic wills? Spanish commentators agree that one of the greatest objections to the holographic will is that it may be lost or stolen4 an implied admission that such loss or theft renders it useless.. This must be so, because the Civil Code requires it to be protocoled and presented to the judge, (Art. 689) who shall subscribe it and require its identity to be established by the three witnesses who depose that they have no reasonable doubt that the will was written by the testator (Art. 691). And if the judge considers that the identity of the will has been proven he shall order that it be filed (Art. 693). All these, imply presentation of the will itself. Art. 692 bears the same implication, to a greater degree. It requires that the surviving spouse and the legitimate ascendants and descendants be summoned so that they may make "any statement they may desire to submit with respect to the authenticity of the will." As it is universally admitted that the holographic will is usually done by the testator and by himself alone, to

prevent others from knowing either its execution or its contents, the above article 692 could not have the idea of simply permitting such relatives to state whether they know of the will, but whether in the face of the document itself they think the testator wrote it. Obviously, this they can't do unless the will itself is presented to the Court and to them. Undoubtedly, the intention of the law is to give the near relatives the choice of either complying with the will if they think it authentic, or to oppose it, if they think it spurious. 5 Such purpose is frustrated when the document is not presented for their examination. If it be argued that such choice is not essential, because anyway the relatives may oppose, the answer is that their opposition will be at a distinct disadvantage, and they have the right and privilegeto comply with the will, if genuine, a right which they should not be denied by withholding inspection thereof from them. We find confirmation of these ideas--about exhibition of the document itself--in the decision of the Supreme Court of Spain of June 5, 1925, which denied protocolization or probate to a document containing testamentary dispositions in the handwriting of the deceased, but apparently mutilated, the signature and some words having been torn from it. Even in the face of allegations and testimonial evidence (which was controverted), ascribing the mutilation to the opponents of the will. The aforesaid tribunal declared that, in accordance with the provision of the Civil Code (Spanish) the will itself, whole and unmutilated, must be presented; otherwise, it shall produce no effect. Considerando que sentado lo anterior, y estableciendose en el parrafo segundo del articulo 688 del Codigo civil, que para que sea valido el testamento olografo debera estar escrito todo el y firmado por testador, con expression del ao, mes y dia en que se otorque, resulta evidente que para la validez y eficacia de esos testamentos, no basta la demostracion mas o menos cumplida de que cuando se otorgaron se Ilenaron todos esos requisitos, sino que de la expresada redaccion el precepto legal, y por el tiempo en que el verbo se emplea, se desprende la necesidad de que el documento se encuentre en dichas condiciones en el momento de ser presentado a la Autoridad competente, para au adveracion y protocolizacion; y como consecuencia ineludible de ello, forzoso es affirmar que el de autos carece de validez y aficacia, por no estarfirmado por el testador, cualquiera que sea la causa de la falta de firma, y sin perjuicio de las acciones que puedan ejercitar los perjudicados, bien para pedir indemnizacion por el perjuicio a la persona culpable, si la hubiere, o su castigo en via criminal si procediere, por constituir dicha omision un defecto insubsanable . . . . This holding aligns with the ideas on holographic wills in the Fuero Juzgo, admittedly the basis of the Spanish Civil Code provisions on the matter.6 PRECEDENTES LEGALES--Fuero Juzgo, libro segundo, titulo V, ley 15--E depues que los herederos e sus fijos ovieren esta manda, fasta ... annos muestrenla al obispo de la tierra, o al juez fasta VI meses y el obispo o el juez tomen otros tales tres escritos, que fuesen fechos por su mano daquel que fizo la manda; e por aquellos escriptos, si semjara la letra de la manda, sea confirmada la manda. E depues que todo esto fuere connoscido, el obispo o el juez, o otras testimonios confirmen el escripto de la manda otra vez, y en esta manera vala la manda. (Art. 689, Scaevola-Codigo Civil.) (According to the Fuero above, the will itself must be compared with specimens of the testators handwriting.) All of which can only mean: the courts will not distribute the property of the deceased in accordance with his holographic will, unless they are shown his handwriting and signature.7

Parenthetically, it may be added that even the French Civil Law considers the loss of the holographic will to be fatal. (Planiol y Ripert, Derecho Civil Frances, traduccion por Diaz Cruz, 1946, Tomo V, page 555). Taking all the above circumstances together, we reach the conclusion that the execution and the contents of a lost or destroyed holographic will may not be proved by the bare testimony of witnesses who have seen and/or read such will.8 Under the provisions of Art. 838 of the New Civil Code, we are empowered to adopt this opinion as a Rule of Court for the allowance of such holographic wills. We hesitate, however, to make this Rule decisive of this controversy, simultaneously with its promulgation. Anyway, decision of the appeal may rest on the sufficiency, rather the insufficiency, of the evidence presented by petitioner Fausto E. Gan. At this point, before proceeding further, it might be convenient to explain why, unlike holographic wills, ordinary wills may be proved by testimonial evidence when lost or destroyed. The difference lies in the nature of the wills. In the first, the only guarantee of authenticity is the handwriting itself; in the second, the testimony of the subscribing or instrumental witnesses (and of the notary, now). The loss of the holographic will entails the loss of the only medium of proof; if the ordinary will is lost, the subscribing witnesses are available to authenticate. In the case of ordinary wills, it is quite hard to convince three witnesses (four with the notary) deliberately to lie. And then their lies could be checked and exposed, their whereabouts and acts on the particular day, the likelihood that they would be called by the testator, their intimacy with the testator, etc. And if they were intimates or trusted friends of the testator they are not likely to end themselves to any fraudulent scheme to distort his wishes. Last but not least, they can not receive anything on account of the will. Whereas in the case of holographic wills, if oral testimony were admissible9 only one man could engineer the fraud this way: after making a clever or passable imitation of the handwriting and signature of the deceased, he may contrive to let three honest and credible witnesses see and read the forgery; and the latter, having no interest, could easily fall for it, and in court they would in all good faith affirm its genuineness and authenticity. The will having been lost the forger may have purposely destroyed it in an "accident" the oppositors have no way to expose the trick and the error, because the document itself is not at hand. And considering that the holographic will may consist of two or three pages, and only one of them need be signed, the substitution of the unsigned pages, which may be the most important ones, may go undetected. If testimonial evidence of holographic wills be permitted, one more objectionable feature feasibility of forgery would be added to the several objections to this kind of wills listed by Castan, Sanchez Roman and Valverde and other well-known Spanish Commentators and teachers of Civil Law.10 One more fundamental difference: in the case of a lost will, the three subscribing witnesses would be testifying to a fact which they saw, namely the act of the testator of subscribing the will; whereas in the case of a lost holographic will, the witnesses would testify as to their opinion of the handwriting which they allegedly saw, an opinion which can not be tested in court, nor directly contradicted by the oppositors, because the handwriting itself is not at hand. Turning now to the evidence presented by the petitioner, we find ourselves sharing the trial judge's disbelief. In addition to the dubious circumstances described in the appealed decision, we find it hard to believe that the deceased should show her will precisely to relatives who had received nothing from it: Socorro Olarte and Primitivo Reyes. These could pester her into amending her will to give them a share, or

threaten to reveal its execution to her husband Ildefonso Yap. And this leads to another point: if she wanted so much to conceal the will from her husband, why did she not entrust it to her beneficiaries? Opportunity to do so was not lacking: for instance, her husband's trip to Davao, a few days after the alleged execution of the will. In fine, even if oral testimony were admissible to establish and probate a lost holographic will, we think the evidence submitted by herein petitioner is so tainted with improbabilities and inconsistencies that it fails to measure up to that "clear and distinct" proof required by Rule 77, sec. 6.11 Wherefore, the rejection of the alleged will must be sustained. Judgment affirmed, with costs against petitioner. Footnotes
7

We have no doubt that this concept and these doctrines concerning the Spanish Civil Code apply to our New Civil Code, since the Commission in its Report (p. 52) merely "revived" holographic wills, i.e., those known to the Spanish Civil Law, before Act 190.
8

Perhaps it may be proved by a photographic or photostatic copy. Evena 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.
9

We are aware of some American cases that admitted lost holographic wills, upon verbal testimony. (Sec. 41, American Law Reports, 2d. pp. 413, 414.) But the point here raised was not discussed. Anyway it is safer to follow, in this matter, the theories of the Spanish law.
10

Justice Jose B. L. Reyes, professor of Civil Law, makes this Comment:

"Holographic wills are peculiarly dangerous kin case of persons who have written very title. The validity of these wills depends, exclusively on the authenticity of handwriting, and if writing standards are not procurable, or not contemporaneous, the courts are left to the mercy of the mendacity of witnesses. It is questionable whether the recreation of the holographic testament will prove wise." (Lawyer's Journal, Nov. 30, 1950, pp. 556-557.)
11

Intestate of Suntay, 50 Off. Gaz., 5321.

G.R. No. L-58509 December 7, 1982 IN THE MATTER OF THE PETITION TO APPROVE THE WILL OF RICARDO B. BONILLA deceased, MARCELA RODELAS, petitioner-appellant, vs. AMPARO ARANZA, ET AL., oppositors-appellees, ATTY. LORENZO SUMULONG, intervenor. This case was certified to this Tribunal by the Court of Appeals for final determination pursuant to Section 3, Rule 50 of the Rules of Court. As found by the Court of Appeals: ... On January 11, 1977, appellant filed a petition with the Court of First Instance of Rizal for the probate of the holographic will of Ricardo B. Bonilla and the issuance of letters testamentary in her favor. The petition, docketed as Sp. Proc. No. 8432, was opposed by the appellees Amparo Aranza Bonilla, Wilferine Bonilla Treyes Expedita Bonilla Frias and Ephraim Bonilla on the following grounds: (1) Appellant was estopped from claiming that the deceased left a will by failing to produce the will within twenty days of the death of the testator as required by Rule 75, section 2 of the Rules of Court; (2) The alleged copy of the alleged holographic will did not contain a disposition of property after death and was not intended to take effect after death, and therefore it was not a will (3) The alleged hollographic will itself,and not an alleged copy thereof, must be produced, otherwise it would produce no effect, as held in Gam v. Yap, 104 Phil. 509; and (4 ) The deceased did not leave any will, holographic or otherwise, executed and attested as required by law. The appellees likewise moved for the consolidation of the case with another case Sp. Proc. No, 8275). Their motion was granted by the court in an order dated April 4, 1977. On November 13, 1978, following the consolidation of the cases, the appellees moved again to dismiss the petition for the probate of the will. They argued that: (1) The alleged holographic was not a last will but merely an instruction as to the management and improvement of the schools and colleges founded by decedent Ricardo B. Bonilla; and (2) Lost or destroyed holographic wills cannot be proved by secondary evidence unlike ordinary wills. Upon opposition of the appellant, the motion to dismiss was denied by the court in its order of February 23, 1979. The appellees then filed a motion for reconsideration on the ground that the order was contrary to law and settled pronouncements and rulings of the Supreme Court, to which the appellant in turn filed an opposition. On July 23, 1979, the court set aside its order of February 23, 1979 and dismissed the petition for the probate of the will of Ricardo B. Bonilla. The court said: ... It is our considered opinion that once the original copy of the holographic will is lost, a copy thereof cannot stand in lieu of the original.

In the case of Gam vs. Yap, 104 Phil. 509, 522, the Supreme Court held that 'in the matter of holographic wills the law, it is reasonable to suppose, regards the document itself as the material proof of authenticity of said wills. MOREOVER, this Court notes that the alleged holographic will was executed on January 25, 1962 while Ricardo B. Bonilla died on May 13, 1976. In view of the lapse of more than 14 years from the time of the execution of the will to the death of the decedent, the fact that the original of the will could not be located shows to our mind that the decedent had discarded before his death his allegedly missing Holographic Will. Appellant's motion for reconsideration was denied. Hence, an appeal to the Court of Appeals in which it is contended that the dismissal of appellant's petition is contrary to law and well-settled jurisprudence. On July 7, 1980, appellees moved to forward the case to this Court on the ground that the appeal does not involve question of fact and alleged that the trial court committed the following assigned errors: I. THE LOWER COURT ERRED IN HOLDING THAT A LOST HOLOGRAPHIC WILL MAY NOT BE PROVED BY A COPY THEREOF; II. THE LOWER COURT ERRED IN HOLDING THAT THE DECEDENT HAS DISCARDED BEFORE HIS DEATH THE MISSING HOLOGRAPHIC WILL; III. THE LOWER COURT ERRED IN DISMISSING APPELLANT'S WILL. The only question here is whether a holographic will which was lost or cannot be found can be proved by means of a photostatic copy. Pursuant to Article 811 of the Civil Code, probate of holographic wills is the allowance of the will by the court after its due execution has been proved. The probate may be uncontested or not. If uncontested, at least one Identifying witness is required and, if no witness is available, experts may be resorted to. If contested, at least three Identifying witnesses are required. However, if the holographic will has been lost or destroyed and no other copy is available, the will can not be probated because the best and only evidence is the handwriting of the testator in said will. It is necessary that there be a comparison between sample handwritten statements of the testator and the handwritten will. But, a photostatic copy or xerox copy of the holographic will may be allowed because comparison can be made with the standard writings of the testator. In the case of Gam vs. Yap, 104 PHIL. 509, the Court ruled that "the execution and the contents of a lost or destroyed holographic will may not be proved by the bare testimony of witnesses who have seen and/or read such will. The will itself must be presented; otherwise, it shall produce no effect. The law regards the document itself as material proof of authenticity." But, in Footnote 8 of said decision, it says that "Perhaps it may be proved by a photographic or photostatic copy. Even a mimeographed or carbon copy; or by other similar means, if any, whereby the authenticity of the handwriting of the deceased may be exhibited and tested before the probate court," Evidently, the photostatic or xerox copy of the lost or destroyed holographic will may be admitted because then the authenticity of the handwriting of the deceased can be determined by the probate court. WHEREFORE, the order of the lower court dated October 3, 1979, denying appellant's motion for reconsideration dated August 9, 1979, of the Order dated July 23, 1979, dismissing her petition to approve the will of the late Ricardo B. Bonilla, is hereby SET ASIDE. SO ORDERED.

MAGLASANG VS. HEIRS OF CORAZON CABATINGAN, 383 SCRA 6- DONATION MORTIS CAUSA In a donation mortis causa, the right of disposition is not transferred to the donee while the donor is still alive. FACTS: On February 1992, Conchita Cabatingan executed in favor of her brother, Nicolas Cabatingan, a "Deed of Conditional of Donation Inter Vivos for House and Lot." Four (4) other deeds of donation were subsequently executed by Conchita Cabatingan on January 1995, bestowing upon: (a) petitioner Estela C. Maglasang, two (2) parcels of land;(b) Nicolas Cabatingan, a portion of a parcel of land; and (c) Merly S. Cabatingan, a portion of land.These deeds of donation contain similar provisions, to wit: "That for and in consideration of the love and affection of the DONOR for the DONEE, x x x the DONOR does hereby, by these presents, transfer, convey, by way of donation, unto the DONEE the abovedescribed property, together with the buildings and all improvements existing thereon, to become effective upon the death of the DONOR; PROVIDED, HOWEVER, that in the event that the DONEE should die before the DONOR, the present donation shall be deemed automatically rescinded and of no further force and effect; x x x"3 (Emphasis Ours)

On May 1995, Conchita Cabatingan died.

Upon learning of the existence of the foregoing donations, respondents (Heirs of Corazon Cabatingan) filed an action for Annulment And/Or Declaration of Nullity of Deeds of Donations and Accounting, seeking the annulment of said four (4) deeds of donation executed. Heirs allege, inter alia, that petitioners, fraudulently caused the donations and that the documents are void for failing to comply with the provisions of the Civil Code regarding formalities of wills and testaments, considering that these are donations mortis causa.

RTC ruled that the donation was mortis causa thus void for not following the requisite forms.

ISSUE: Whether or not the donation was mortis causa?

HELD: Mortis Causa. In a donation mortis causa, "the right of disposition is not transferred to the donee while the donor is still alive." In determining whether a donation is one of mortis causa, the following characteristics must be taken into account:

(1) It conveys no title or ownership to the transferee before the death of the transferor; or what amounts to the same thing, that the transferor should retain the ownership (full or naked) and control of the property while alive;

(2) That before his death, the transfer should be revocable by the transferor at will, ad nutum; but revocability may be provided for indirectly by means of a reserved power in the donor to dispose of the properties conveyed; And

(3) That the transfer should be void if the transferor should survive the transferee. In the present case, the nature of the donations as mortis causa is confirmed by the fact that the donations do not contain any clear provision that intends to pass proprietary rights to petitioners prior to Cabatingan's death. The phrase "to become effective upon the death of the DONOR" admits of no other interpretation but that Cabatingan did not intend to transfer the ownership of the properties to petitioners during her lifetime.

For a donation mortis causa to be valid it must conform with the following requisites: ART. 805. Every will, other than a holographic will, must be subscribed at the end thereof by the testator himself or by the testator's name written by some other person in his presence, and by his express direction, and attested and subscribed by three or more credible witnesses in the presence of the testator and of one another.

The testator or the person requested by him to write his name and the instrumental witnesses of the will, shall also sign, as aforesaid, each and every page thereof, except the last, on the left margin, and all the pages shall be numbered correlatively in letters placed on the upper part of each page. The attestation shall state the number of pages used upon which the will is written , and the fact that the testator signed the will and every page thereof, or caused some other person to write his name, under his

express direction, in the presence of the instrumental witnesses, and that the latter witnessed and signed the will and all the pages thereof in the presence of the testator and of one another. If the attestation clause is in a language not known to the witnesses, it shall be interpreted to them. ART. 806. Every will must be acknowledged before a notary public by the testator and the witnesses. The notary public shall not be required to retain a copy of the will, or file another with the office of the Clerk of Court. (n)

G.R. No. 106720 September 15, 1994 SPOUSES ROBERTO AND THELMA AJERO, petitioners, vs. THE COURT OF APPEALS AND CLEMENTE SAND, respondents. This is an appeal by certiorari from the Decision of the Court of Appeals 1 in CA-G.R. CV No. 22840, dated March 30, 1992, the dispositive portion of which reads; PREMISES CONSIDERED, the questioned decision of November 19, 1988 of the trial court is hereby REVERSED and SET ASIDE, and the petition for probate is hereby DISMISSED. No costs. The earlier Decision was rendered by the RTC of Quezon City, Branch 94, 2 in Sp. Proc. No. Q-37171, and the instrument submitted for probate is the holographic will of the late Annie Sand, who died on November 25, 1982. In the will, decedent named as devisees, the following: petitioners Roberto and Thelma Ajero, private respondent Clemente Sand, Meriam S. Arong, Leah Sand, Lilia Sand, Edgar Sand, Fe Sand, Lisa S. Sand, and Dr. Jose Ajero, Sr., and their children. On January 20, 1983, petitioners instituted Sp. Proc. No. Q-37171, for allowance of decedent's holographic will. They alleged that at the time of its execution, she was of sound and disposing mind, not acting under duress, fraud or undue influence, and was in every respect capacitated to dispose of her estate by will. Private respondent opposed the petition on the grounds that: neither the testament's body nor the signature therein was in decedent's handwriting; it contained alterations and corrections which were not duly signed by decedent; and, the will was procured by petitioners through improper pressure and undue influence. The petition was likewise opposed by Dr. Jose Ajero. He contested the disposition in the will of a house and lot located in Cabadbaran, Agusan Del Norte. He claimed that said property could not be conveyed by decedent in its entirety, as she was not its sole owner. Notwithstanding the oppositions, the trial court admitted the decedent's holographic will to probate. It found, inter alia: Considering then that the probate proceedings herein must decide only the question of identity of the will, its due execution and the testamentary capacity of the testatrix, this probate court finds no reason at all for the disallowance of the will for its failure to comply with the formalities prescribed by law nor for lack of testamentary capacity of the testatrix. For one, no evidence was presented to show that the will in question is different from the will actually executed by the testatrix. The only objections raised by the oppositors . . . are that the will was not written in the handwriting of the testatrix which properly refers to the question of its due execution, and not to the question of identity of will. No other will was alleged to have been executed by the testatrix other than the will herein presented. Hence, in the light of the evidence adduced, the identity of the will presented for probate must be accepted, i.e., the will submitted in Court must be deemed to be the will actually executed by the testatrix. xxx xxx xxx

While the fact that it was entirely written, dated and signed in the handwriting of the testatrix has been disputed, the petitioners, however, have satisfactorily shown in Court that the holographic will in question was indeed written entirely, dated and signed in the handwriting of the testatrix. Three (3) witnesses who have convincingly shown knowledge of the handwriting of the testatrix have been presented and have explicitly and categorically identified the handwriting with which the holographic will in question was written to be the genuine handwriting and signature of the testatrix. Given then the aforesaid evidence, the requirement of the law that the holographic will be entirely written, dated and signed in the handwriting of the testatrix has been complied with. xxx xxx xxx As to the question of the testamentary capacity of the testratix, (private respondent) Clemente Sand himself has testified in Court that the testatrix was completely in her sound mind when he visited her during her birthday celebration in 1981, at or around which time the holographic will in question was executed by the testatrix. To be of sound mind, it is sufficient that the testatrix, at the time of making the will, knew the value of the estate to be disposed of, the proper object of her bounty, and thecharacter of the testamentary act . . . The will itself shows that the testatrix even had detailed knowledge of the nature of her estate. She even identified the lot number and square meters of the lots she had conveyed by will. The objects of her bounty were likewise identified explicitly. And considering that she had even written a nursing book which contained the law and jurisprudence on will and succession, there is more than sufficient showing that she knows the character of the testamentary act. In this wise, the question of identity of the will, its due execution and the testamentary capacity of the testatrix has to be resolved in favor of the allowance of probate of the will submitted herein. Likewise, no evidence was presented to show sufficient reason for the disallowance of herein holographic will. While it was alleged that the said will was procured by undue and improper pressure and influence on the part of the beneficiary or of some other person, the evidence adduced have not shown any instance where improper pressure or influence was exerted on the testatrix. (Private respondent) Clemente Sand has testified that the testatrix was still alert at the time of the execution of the will, i.e., at or around the time of her birth anniversary celebration in 1981. It was also established that she is a very intelligent person and has a mind of her own. Her independence of character and to some extent, her sense of superiority, which has been testified to in Court, all show the unlikelihood of her being unduly influenced or improperly pressured to make the aforesaid will. It must be noted that the undue influence or improper pressure in question herein only refer to the making of a will and not as to the specific testamentary provisions therein which is the proper subject of another proceeding. Hence, under the circumstances, this Court cannot find convincing reason for the disallowance of the will herein. Considering then that it is a 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. 3 (Citations omitted.) On appeal, said Decision was reversed, and the petition for probate of decedent's will was dismissed. The Court of Appeals found that, "the holographic will fails to meet the requirements for its validity." 4 It held that the decedent did not comply with Articles 813 and 814 of the New Civil Code, which read, as follows:

Art. 813: When a number of dispositions appearing in a holographic will are signed without being dated, and the last disposition has a signature and date, such date validates the dispositions preceding it, whatever be the time of prior dispositions. Art. 814: In case of insertion, cancellation, erasure or alteration in a holographic will, the testator must authenticate the same by his full signature. It alluded to certain dispositions in the will which were either unsigned and undated, or signed but not dated. It also found that the erasures, alterations and cancellations made thereon had not been authenticated by decedent. Thus, this appeal which is impressed with merit. Section 9, Rule 76 of the Rules of Court provides that will shall be disallowed in any of the following cases: (a) If not executed and attested as required by law; (b) If the testator was insane, or otherwise mentally incapable to make a will, at the time of its execution; (c) If it was executed under duress, or the influence of fear, or threats; (d) If it was procured by undue and improper pressure and influence, on the part of the beneficiary, or of some other person for his benefit; (e) If the signature of the testator was procured by fraud or trick, and he did not intend that the instrument should be his will at the time of fixing his signature thereto. In the same vein, Article 839 of the New Civil Code reads: Art. 839: The will shall be disallowed in any of the following cases; (1) If the formalities required by law have not been complied with; (2) If the testator was insane, or otherwise mentally incapable of making a will, at the time of its execution; (3) If it was executed through force or under duress, or the influence of fear, or threats; (4) If it was procured by undue and improper pressure and influence, on the part of the beneficiary or of some other person; (5) If the signature of the testator was procured by fraud; (6) If the testator acted by mistake or did not intend that the instrument he signed should be his will at the time of affixing his signature thereto.

These lists are exclusive; no other grounds can serve to disallow a will. 5 Thus, in a petition to admit a holographic will to probate, the only issues to be resolved are: (1) whether the instrument submitted is, indeed, the decedent's last will and testament; (2) whether said will was executed in accordance with the formalities prescribed by law; (3) whether the decedent had the necessary testamentary capacity at the time the will was executed; and, (4) whether the execution of the will and its signing were the voluntary acts of the decedent. 6 In the case at bench, respondent court held that the holographic will of Anne Sand was not executed in accordance with the formalities prescribed by law. It held that Articles 813 and 814 of the New Civil Code, ante, were not complied with, hence, it disallowed the probate of said will. This is erroneous. We reiterate what we held in Abangan vs. Abangan, 40 Phil. 476, 479 (1919), that: The object of the solemnities surrounding the execution of wills is to close the door against bad faith and fraud, to avoid substitution of wills and testaments and to guaranty their truth and authenticity. Therefore, the laws on this subject should be interpreted in such a way as to attain these primordial ends. But, on the other hand, also one must not lose sight of the fact that it is not the object of the law to restrain and curtail the exercise of the right to make a will. So when an interpretation already given assures such ends, any other interpretation whatsoever, that adds nothing but demands more requisites entirely unnecessary, useless and frustrative of the testator's last will, must be disregarded. For purposes of probating non-holographic wills, these formal solemnities include the subscription, attestation, and acknowledgment requirements under Articles 805 and 806 of the New Civil Code. In the case of holographic wills, on the other hand, what assures authenticity is the requirement that they be totally autographic or handwritten by the testator himself, 7 as provided under Article 810 of the New Civil Code, thus: A person may execute a holographic will which must be entirely written, dated, and signed by the hand of the testator himself. It is subject to no other form, and may be made in or out of the Philippines, and need not be witnessed. (Emphasis supplied.) Failure to strictly observe other formalities will not result in the disallowance of a holographic will that is unquestionably handwritten by the testator. A reading of Article 813 of the New Civil Code shows that its requirement affects the validity of the dispositions contained in the holographic will, but not its probate. If the testator fails to sign and date some of the dispositions, the result is that these dispositions cannot be effectuated. Such failure, however, does not render the whole testament void. Likewise, a holographic will can still be admitted to probate, notwithstanding non-compliance with the provisions of Article 814. In the case of Kalaw vs. Relova 132 SCRA 237 242 (1984), this Court held: Ordinarily, when a number of erasures, corrections, and interlineations made by the testator in a holographic Will have not been noted under his signature, . . . the Will is not thereby invalidated as a whole, but at most only as respects the particular words erased, corrected or interlined. Manresa gave an identical commentary when he said "la omission

de la salvedad no anula el testamento, segun la regla de jurisprudencia establecida en la sentencia de 4 de Abril de 1985." 8 (Citations omitted.) Thus, unless the unauthenticated alterations, cancellations or insertions were made on the date of the holographic will or on testator's signature, 9 their presence does not invalidate the will itself. 10 The lack of authentication will only result in disallowance of such changes. It is also proper to note that the requirements of authentication of changes and signing and dating of dispositions appear in provisions (Articles 813 and 814) separate from that which provides for the necessary conditions for the validity of the holographic will (Article 810). The distinction can be traced to Articles 678 and 688 of the Spanish Civil Code, from which the present provisions covering holographic wills are taken. They read as follows: Art. 678: A will is called holographic when the testator writes it himself in the form and with the requisites required in Article 688. Art. 688: Holographic wills may be executed only by persons of full age. In order that the will be valid it must be drawn on stamped paper corresponding to the year of its execution, written in its entirety by the testator and signed by him, and must contain a statement of the year, month and day of its execution. If it should contain any erased, corrected, or interlined words, the testator must identify them over his signature. Foreigners may execute holographic wills in their own language. This separation and distinction adds support to the interpretation that only the requirements of Article 810 of the New Civil Code and not those found in Articles 813 and 814 of the same Code are essential to the probate of a holographic will. The Court of Appeals further held that decedent Annie Sand could not validly dispose of the house and lot located in Cabadbaran, Agusan del Norte, in its entirety. This is correct and must be affirmed. As a general rule, courts in probate proceedings are limited to pass only upon the extrinsic validity of the will sought to be probated. However, in exceptional instances, courts are not powerless to do what the situation constrains them to do, and pass upon certain provisions of the will. 11 In the case at bench, decedent herself indubitably stated in her holographic will that the Cabadbaran property is in the name of her late father, John H. Sand (which led oppositor Dr. Jose Ajero to question her conveyance of the same in its entirety). Thus, as correctly held by respondent court, she cannot validly dispose of the whole property, which she shares with her father's other heirs. IN VIEW WHEREOF, the instant petition is GRANTED. The Decision of the Court of Appeals in CA-G.R. CV No. 22840, dated March 30, 1992, is REVERSED and SET ASIDE, except with respect to the invalidity of the disposition of the entire house and lot in Cabadbaran, Agusan del Norte. The Decision of the Regional Trial Court of Quezon City, Branch 94 in Sp. Proc. No. Q-37171, dated November 19, 1988, admitting to probate the holographic will of decedent Annie Sand, is hereby REINSTATED, with the above qualification as regards the Cabadbaran property. No costs. SO ORDERED.

G.R. No. 17857

June 12, 1922

In re will of Josefa Zalamea y Abella, deceased. PEDRO UNSON, petitioner-appellee, vs. ANTONIO ABELLA, ET AL., opponents-appellants. On July 19, 1918, Doa Josefa Zalamea y Abella, single, 60 years old, who was residing in the municipality of Pagsanjan, Province of Laguna, executed her last will and testament with an attached inventory of her properties, Exhibits A and A-1, in the presence of three witnesses, who signed with her all the pages of said documents. The testatrix died on the 6th of January, 1921, and, as the record shows, the executor appointed in the will, Pedro Unson, filed in the court of First Instance of Laguna on the 19th of January of the same year an application for the probate of the will and the issuance of the proper letters of administration in his favor. To said application an opposition was presently by Antonio Abella, Ignacia Abella, Avicencia Abella, and Santiago Vito, alleging that the supposed will of the deceased Zalamea was not executed in conformity with the provinces of the law, inasmuch as it was not paged correlatively in letters, nor was there any attestation clause in it, nor was it signed by the testatrix and the witnesses in the presence of each other. Trial having been held, the judge a quo overruled the opposition of the contestants, and ordered the probate of the will, Exhibit A, and the inventory, Exhibit A-1, holding that both documents contained the true and last will of the deceased Josefa Zalamea. From the judgment of the court below, the contestants have appealed, and in their brief they assign three errors, which, in their opinion, justify the reversal of the judgment appealed from. The first error assigned by the appellants as committed by the court below is its finding to the effect that Exhibit A, said to be the will of the deceased Josefa Zalamea, was executed with all the solemnities required by the law. The arguments advanced by appellants' counsel in support of the first assignment of error tend to impeach the credibility of the witnesses for the proponent, specially that of Eugenio Zalamea. We have made a careful examination of the evidence, but have not found anything that would justify us in disturbing the finding of the courta quo. The attesting witnesses, Eugenio Zalamea and Gonzalo Abaya, clearly testify that together with the other witness to the will, Pedro de Jesus, they did sign each and every page of the will and of the inventory in the presence of each other and of the testatrix, as the latter did likewise sign all the pages of the will and of the inventory in their presence. In their brief the appellants intimate that one of the pages of the will was not signed by the testatrix, nor by the witnesses on the day of the execution of the will, that is, on the 19th of July, 1918, basing their contention on the testimony of Aurelio Palileo, who says that on one occasion Gonzalo Abaya told him that one of the pages of the will had not been signed by the witnesses, nor by the testatrix on the day of its execution. Palileo's testimony is entirely contradicted by Gonzalo Abaya not only in the direct, but in the rebuttal, evidence as well. To our mind, Palileo's testimony cannot prevail over that of the attesting witnesses, Gonzalo Avaya and Eugenio Zalamea. The appellants impeach the credibility of Eugenio Zalamea, for having made a sworn declaration before the justice of the peace of Santa Cruz, Laguna, before the trial of this case, to the effect that he was really one of the witnesses to the will in question, which fact was corroborated by himself at the trial. The appellants take Zalamea's testimony in connection with the dismissal of a criminal case against a nephew of his, in whose success he was interested, and infer from this fact the partiality of his testimony. We deem this allegation of little importance to impeach the

credibility of the witness Zalamea, especially because his testimony is corroborated by the other attesting witness. Gonzalo Abaya, and by attorney Luis Abaya, who had prepared the testament at the instance of the testatrix. The foregoing is sufficient for us to conclude that the first assignment of error made by the appellants is groundless. The appellants contend that the court below erred in admitting the will to probate notwithstanding the omission of the proponent to produce one of the attesting witnesses. At the trial of this case the attorneys for the proponent stated to the court that they had necessarily to omit the testimony of Pedro de Jesus, one of the persons who appear to have witnessed the execution of the will, for there were reasonable grounds to believe that said witness was openly hostile to the proponent, inasmuch as since the announcement of the trial of the petition for the probate of the will, said witness has been in frequent communication with the contestants and their attorney, and has refused to hold any conference with the attorneys for the proponent. In reply to this, the attorney for the contestants, said to the court, "without discussing for the present whether or not in view of those facts (the facts mentioned by the attorneys for the petitioner), in the hypothesis that the same are proven, they are relieved from producing that witness, for while it is a matter not decided, it is a recognized rule that the fact that a witness is hostile does not justify a party to omit his testimony; without discussing this, I say, I move that said statement be stricken out, and if the proponent wants these facts to stand to stand in the record, let him prove them." The court a quo ruled, saying, "there is no need." To this ruling of the court, the attorney for the appellants did not take any exception. In the case of Avera vs. Garcia and Rodriguez (42 Phil., 145), recently decided by this court, in deciding the question whether a will can be admitted to probate, where opposition is made, upon the proof of a single attesting witness, without producing or accounting for the absence of the other two, it was said; "while it is undoubtedly true that an uncontested will may be proved by the testimony of only one of the three attesting witnesses, nevertheless in Cabang vs. Delfinado (34 Phil., 291), this court declared after an elaborate examination of the American and English authorities that when a contest is instituted, all of the attesting witnesses must be examined, if alive and within reach of the process of the court. In the present case no explanation was made at the trial as to why all three of the attesting witnesses were not produced, but the probable reason is found in the fact that, although the petition for the probate of this will had been pending from December 21, 1917, until the date set for the hearing, which was April 5, 1919, no formal contest was entered until the very day set for the hearing; and it is probable that the attorney for the proponent, believing in good faith that probate would not be contested, repaired to the court with only one of the three attesting witnesses at hand, and upon finding that the will was contested, incautiously permitted the case to go to proof without asking for a postponement of the trial in order that he might produce all the attesting witnesses. Although this circumstance may explain why the three witnesses were not produced, it does not in itself supply any basis for changing the rule expounded in the case above referred to; and were it not for a fact now to be mentioned, this court would probably be compelled to reverse this case on the ground that the execution of the will had not been proved by a sufficient number of attesting witnesses. It appears, however, that this point was not raised by the appellant in the lower court either upon the submission of the cause for determination in that court or upon the occasion of the filing of the

motion for a new trial. Accordingly it is insisted for the appellee that this question cannot now be raised for t he first time in this court. We believe this point is well taken, and the first assignment of error must be declared not to be well taken. This exact question has been decided by the Supreme Court of California adversely to the contention of the appellant, and we see no reason why the same rule of practice should not be observed by us. (Estate of McCarty, 58 Cal., 335, 337.) There are at least two reasons why the appellate tribunals are disinclined to permit certain questions to be raised for the first time in the second instance. In the first place it eliminates the judicial criterion of the Court of First Instance upon the point there presented and makes the appellate court in effect a court of first instance with reference to that point, unless the case is remanded for a new trial. In the second place, it permits, if it does not encourage, attorneys to trifle with the administration of justice by concealing from the trial court and from their opponent the actual point upon which reliance is placed, while they are engaged in other discussions more simulated than real. These considerations are, we think, decisive. In ruling upon the point above presented we do not wish to be understood as laying down any hard and fast rule that would prove an embarrassment to this court in the administration of justice in the future. In one way or another we are constantly here considering aspects of cases and applying doctrines which have escaped the attention of all persons concerned in the litigation below; and this is necessary if this court is to contribute the part due from it in the correct decision of the cases brought before it. What we mean to declare is that when we believe that substantial justice has been done in the Court of First Instance, and the point relied on for reversal in this court appears to be one which ought properly to have been presented in that court, we will in the exercise of a sound discretion ignore such question upon appeal; and this is the more proper when the question relates to a defect which might have been cured in the Court of First Instance if attention had been called to it there. In the present case, if the appellant had raised this question in the lower court, either at the hearing or upon a motion for a new trial, that court would have had the power, and it would have been its duty, considering the tardy institution of the contest, to have granted a new trial in order that all the witnesses to the will might be brought into court. But instead of thus calling the error to the attention of the court and his adversary, the point is first raised by the appellant in this court. We hold that this is too late. Properly understood, the case of Cabang vs. Delfinado, supra, contains nothing inconsistent with the ruling we now make, for it appears from the opinion in that case that the proponent of the will had obtained an order for a republication and new trial for the avowed purpose of presenting the two additional attesting witnesses who had not been previously examined, but nevertheless subsequently failed without any apparent reason to take their testimony. Both parties in that case were therefore fully apprised that the question of the number of witnesses necessar to prove the will was in issue in the lower court. In the case at bar, we do not think this question properly to have been raised at the trial, but in the memorandum submitted by the attorney for the appellants to the trial court, he contended that the will could not be admitted to probate because one of the witnesses to the will was not produced, and that the voluntary non-production of this witness raises a presumption against the pretension of the proponent. The trial court found that the evidence introduced by the proponent, consisting of the testimony of the two attesting witnesses and the other witness who was present at the execution, and had charge of the preparation of the will and the inventory, Exhibits A and A-1, was sufficient. As announced in Cabang vs. Delfinado, supra, the general rule is that, where opposition is made to the probate of a will, the attesting witnesses must be produced. But there are exceptions to this rule, for instance, when a witness is dead, or

cannot be served with process of the court, or his reputation for truth has been questioned or he appears hostile to the cause of the proponent. In such cases, the will may be admitted to probate without the testimony of said witness, if, upon the other proofs adduced in the case, the court is satisfied that the will has been duly executed. Wherefore, we find that the non-production of the attesting witness, Pedro de Jesus, as accounted for by the attorney for the proponent at the trial, does not render void the decree of the court a quo, allowing the probate. But supposing that said witness, when cited, had testified adversely to the application, this would not by itself have change the result reached by the court a quo, for section 632 of the Code of Civil Procedure provides that a will can be admitted to probate, notwithstanding that one or more witnesses do not remember having attested it, provided the court is satisfied upon the evidence adduced that the will has been executed and signed in the manner prescribed by the law. The last error assigned by the appellants is made to consist in the probate of the inventory, Exhibit A-1, despite the fact that this exhibit has no attestation clause in it, and its paging is made in Arabic numerals and not in letters. In the third paragraph of the will, reference is made to the inventory, Exhibit A-1, and at the bottom of said will, the testatrix Josefa Zalamea says: In witness whereof, I sign this will composed of ten folios including the page containing the signatures and the attestation of the witnesses; I have likewise signed the inventory attached to this will composed of ten folios in the presence of Messrs. Gonzalo Abaya, Eugenio Zalamea, Pedro de Jesus, in this municipality of Pagsanjan, Laguna, Philippine Islands, this 19th of July, 1918. And the attestation clause is as follows: The foregoing will composed of ten folios including this one whereunto we have affixed our signatures, as well as the inventory of the properties of Doa Josefa Zalamea y Abella, was read to Doa Josefa Zalamea y Abella, and the latter affixed her name to the last, and each and every page of this will and inventory composed of ten folios in our presence; and she declared this to be her last will and testament and at her request we have affixed hereunto our respective signatures in her presence and in the presence of each other as witnesses to the will and the inventory this 19th of July, 1918, at Pagsanjan, Laguna, P.I. (Sgd.) GONZALO ABAYA, EUGENIO ZALAMEA, PEDRO DE JESUS. In view of the fact that the inventory is referred to in the will as an integral part of it, we find that the foregoing attestation clause is in compliance with section 1 of Act No. 2645, which requires this solemnity for the validity of a will, and makes unnecessary any other attestation clause at the end of the inventory. As to the paging of the will in Arabic numerals, instead of in letters, we adhere to the doctrine announced in the case of Aldaba vs. Roque (p. 378, ante), recently decided by this court. In that case the validity of the will was assailed on the ground that its folios were paged with the letters A, B, C, etc., instead of with the letters "one," two," "three," etc. It was held that this way of numbering the pages of a will is in compliance with the spirit of the law, inasmuch as either one of these methods indicates the correlation of the pages and serves to prevent the abstraction of any of them. In the course of the decision, we said: "It might be

said that the object of the law in requiring that the paging be made in letters is to make falsification more difficult, but it should be noted that since all the pages of the testament are signed at the margin by the testatrix and the witnesses, the difficulty of forging the signatures in either case remains the same. In other words the more or less degree of facility to imitate the writing of the letters A, B, C, etc., does not make for the easiness to forge the signatures. And as in the present case there exists the guaranty of the authenticity of the testament, consisting in the signatures on the left margins of the testament and the paging thereof as declared in the attestation clause, the holding of this court in Abangan vs. Abangan (40 Phil., 476), might as well be repeated: "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 whatsoever, that adds nothing but demands more requisites entirely unnecessary, useless, and frustrative of the testator's last will, must be disregarded." In that case the testament was written on one page, and the attestation clause on another. Neither one of these pages was numbered in any way, and it was held: "In a will consisting of two sheets the first of which contains all the testamentary dispositions and is signed at the bottom by the testator and three witnesses, and the second contains only the attestation clause and is signed also at the bottom by the three witnesses it is not necessary that both sheets be further signed on their margins by the testator and the witnesses, or be paged." This means that, according to the particular case, the emission of paging does not necessarily render the testament invalid. The law provides that the numbering of the pages should be in letters placed on the upper part of the sheet, but if the paging should be placed in the lower part, would the testament be void for this sole reason? We believe not. The law also provides that the testator and the witnesses must sign the left margin of each of the sheets of the testament; but if they should sign on the right margin, would this fact also annul the testament? Evidently not. This court has already held in Avera vs. Garcia and Rodriguez (42 Phi., 145): "It is true that the statute says that the testator and the instrumental witnesses shall sign their names on the left margin of each and every page; and it is undeniable that the general doctrine is to the effect that all statutory requirements as to the execution of wills must be fully complied with. The same execution for wills must be fully complied with. The same doctrine is also deducible from cases heretofore decided by this court." "Still some details at time creep into legislative enactments which are so trivial that it would be absurd to suppose that the Legislature could have attached any decisive importance to them. The provision to the effect that the signatures of the testator and witnesses shall be written on the left margin of each page rather than on the margin seems to be of this character. So far as concerns the authentication of the will, and of every part thereof, it can make no possible difference whether the names appear on the left or on the right margin, provided they are on one or the other. In Craig vs. Tatlonghari (G. R. No. 12558, decided March 23, 1918, not reported), this court declared a will void which was totally lacking in the signatures required to be written on its several pages; and in the case of Re Estate of Saguinsin (41 Phil., 875) a will was likewise declared

void which contained the necessary signatures on the margin of each leaf (folio), but not in the margin of each page containing written matter." We do not desire to intimate that the numbering in letters is a requisite of no importance. But since its principal object is to give the correlation of the pages, we hold that his object may be attained by writing one, two, three, etc., as well as by writing A, B, C, etc. We see no reason why the same rule should not be applied where the paging is in Arabic numerals, instead of in letters, as in the inventory in question. So that, adhering to the view taken by this court in the case of Abangan vs. Abangan, and followed in Aldava vs. Roque, with regard to the appreciation of the solemnities of a will, we find that the judgement appealed from should be, as is hereby, affirmed with the costs against the appellants. So ordered.

May 31, 1922 G.R. No. 17714 In the mater of the estate of Jesus de Leon. IGNACIA DIAZ, petitioner-appellant,vs. ANA DE LEON, opponent-appellee. 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.) 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 testators 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-47305

July 31, 1942

In the matter of the estate of Rufina Arevalo. ARISTON BUSTAMANTE, administrator-appellant, vs. PETRONA AREVALO, ET AL., oppositors-appellees. 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 counteracts 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 miultimo 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. 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.

MOLO VS. MOLO 90 Phil 37 FACTS: 1. Mariano Molo died on January 24, 1941 without leaving any forced heir either in the descending or ascending line. 2. His wife Juana Molo (petitioner) survived him, and by his nieces and nephew Luz, Gliceria and Cornelio, all surnamed Molo (oppositors-appellants). 3. Oppositors appellants were the legitimate children of a deceased brother of the testator. 4. Mariano left two wills, one executed on August 17, 1918 and another executed on June 20, 1939, 5. In both the 1918 and 1939 wills Juana was instituted as his universal heir. 6. The latter will contains a clause, which expressly revokes the will executed in 1918. 7. Juana Molo filed in the CFI a petition seeking the probate of the will executed in 1939. 8. The court rendered a 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. 9. In view of the disallowance of the will, the widow filed another petition for the probate of the will executed by the deceased on August 18, 1918. 10. The oppositors filed an opposition to the petition contending that, notwithstanding the disallowance of the 1939 will, the revocatory clause is valid and still has the effect of nullifying the prior will of 1918. 11. Likewise, regardless of the revocatory clause, said will of 1918 cannot still be given effect because of the presumption that the testator himself deliberately revoked it. 12. The will of 1918 was admitted to probate. 13. Hence this appeal. ISSUE: Was the admittance into probate proper? What is the doctrine of dependent relative revocation? HELD: 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 law as to the making of wills, cannot produce the effect of annulling the previous will, inasmuch as said revocatory clause is void. The doctrine of dependent relative revocation is usually applied where the testator cancels or destroys a will or executed 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 to effect for same reason. The failure of the new testamentary disposition, upon whose validity the revocation depends, is equivalent to the non-fulfillment of a suspensive condition, and hence prevents the revocation of the original will. But a mere intent to make at some time a will in place of that destroyed will not render the destruction

conditional. It must appear that the revocation is dependent upon the valid execution of a new will. 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 the principle of dependent relative revocation is predicated in that the testator did not intend to die intestate. And this intention is clearly manifest when he executed two wills on different occasions and instituted his wife as his universal heir. There can therefore be no mistake as to his intention of dying testate.

G.R. No. L-23135

December 26, 1967

TESTATE ESTATE OF HILARION RAMAGOSA. MARIANO SUMILANG, petitioner-appellee, vs. SATURNINA RAMAGOSA, SANTIAGO RAMAGOSA, ENRIQUE PABELLA, LICERIA PABELLA and ANDREA RAVALO, oppositors-appellants. On July 5, 1960 Mariano Sumilang filed in the Court of First Instance of Quezon a petition for the probate of a document alleged to be the last will and testament of Hilarion Ramagosa, who died on December 1, 1959. Said document, written in Tagalog and dated February 26, 1949, institutes petitioner as sole heir of the testator. The petition for probate was opposed by two (2) of oppositors appellants herein who questioned the due execution of the document, claiming that it was made under duress and was not really intended by the deceased to be his last will and testament. Aside from merely opposing the petition for probate, the first set of oppositors Saturnino and Santiago Ramagosa also claimed that they, instead of petitioner, were entitled to inherit the estate of the deceased. The other oppositors representing themselves simply as next of kin, appropriately prayed only for the disallowance of the will. At the hearings of the petition petitioner adduced his evidence, and then rested his case on February 16, 1961. Reception of oppositors' evidence was set for July 14, 1961. However, on July 3, 1961 oppositors moved for the dismissal of the petition for probate mainly on the ground that "the court lacks jurisdiction over the subject-matter because the last will and testament of the decedent, if ever it was really executed by him, was revoked by implication of law six years before his death." Oppositors alleged that after making the will Hilarion Ramagosa sold to petitioner Mariano Sumilang and his brother Mario the parcels of land described therein, so that at the time of the testator's death the titles to said lands were no longer in his name. Petitioner filed his opposition to the motion for dismissal on July 17, 1961 supplemented it by another opposition on August 14, 1961, and by a rejoinder on August 21, 1961. Finally, on October 22, 1962 petitioner moved to strike out the oppositors' pleadings on two grounds, namely: 1. That oppositors have no legal standing in court and they are bereft of personality to oppose the probate of the last will and testament of the testators; and 2. That oppositors have no valid claim and interest in the distribution of (the) estate of the aforesaid testator and no existing valid right whatsoever. On October 18, 1963 the court a quo issued the order now subject of this appeal, which read as follows: Acting on the motion to dismiss filed by the oppositors dated July 31, 1961, the same is hereby denied for the allegations contained therein goes (sic) to the very intrinsic value of the will and other grounds stated on said motion to dismiss are without merit.itc-alf With respect to the motion to strike out opposition and all other pleadings of oppositors filed by the petitioner, it appears that oppositors have no relationship whatsoever within the fifth degree as provided by law and therefore the oppositors are totally strangers to the deceased whose will is under probate. This being so, the motion to strike out opposition and all other pleadings pertinent thereto is hereby ordered stricken out of the record.

The petition below being for the probate of a will, the court's area of inquiry is limited to the extrinsic validity thereof. The testator's testamentary capacity and the compliance with the formal requisites or solemnities prescribed by law are the only questions presented for the resolution of the court. Any inquiry into the intrinsicvalidity or efficacy of the provisions of the will or the legality of any devise or legacy is premature. (Nuguid vs. Nuguid, G.R. No. L-23445, June 23, 1966). To establish conclusively as against everyone and once for all, the facts that a will was executed with the formalities required by law and that the testator was in a condition to make a will, is the only purpose of the proceedings . . . for the probate of a will. The judgment in such proceedings determines and can determine nothing more. (Alemany, et al. vs. CFI of Manila, 3 Phil. 424). Oppositors would want the court a quo to dismiss petition for probate on the ground that the testator had impliedly revoked his will by selling, prior to his death, the lands disposed of therein. True or not, the alleged sale is no ground for the dismissal of the petition for probate. Probate is one thing the validity of the testamentary provisions is another.itc-alf The first decides the execution of the document and the testamentary capacity of the testator; the second relates to descent and distribution. The alleged revocation implied from the execution of the deeds of conveyance in favor of the testamentary heir is plainly irrelevant to and separate from the question of whether the testament was duly executed. For one, if the will is not entitled to probate, or its probate is denied, all questions of revocation become superfluous: in law, there is no such will and hence there would be nothing to revoke. Then, again, the revocation invoked by the oppositors-appellants is not an express one, but merely implied from subsequent acts of the testatrix allegedly evidencing an abandonment of the original intention to bequeath or devise the properties concerned. As such, the revocation would not affect the will itself, but merely the particular devise or legacy. itcalf (Fernandez, et al. vs. Dimagiba, L-23638 and Reyes, et al. vs. Dimagiba, L-23662, October 12, 1967.) In their brief, oppositors do not take issue with the court a quo's finding that they "have no relationship whatsoever within the fifth degree as provided by law and therefore . . . are totally (sic) strangers to the deceased whose will is under probate." They do not attempt to show that they have some interest in the estate which must be protected. The uncontradicted evidence, consisting of certified true copies of the parties' baptism and marriage certificates, support the said court's finding in this respect. It is a well-settled rule that in order that a person may be allowed to intervene in a probate proceeding he must have an interest in the estate, or in the will, or in the property to be affected by it either as executor or as a claimant of the estate (Ngo The Hua vs. Chung Kiat Hua, et al., L17091, September 30, 1963); and an interested party has been defined as one who would be benefited by the estate such as an heir or one who has a claim against the estate like a creditor. (Teotico vs. Del Val, etc., G.R. No. L- 18753, March 26, 1965.) The reason for the rule excluding strangers from contesting the will, is not that thereby the court may be prevented from learning facts which would justify or necessitate a denial of probate, but rather that the courts and the litigants should not be molested by the intervention in the proceedings of persons with no interest in the estate which would entitle them to be heard with relation thereto. (Paras vs. Narciso, 35 Phil. 244.)

Sometime after this case was elevated to this Court appellee moved to dismiss the appeal on the ground that the order appealed from is interlocutory. We deferred action on the motion until after the brief of both parties had been filed. The motion, although now practically academic in view of our resolution of the main issue involved, must be denied, since the order of the lower court striking out appellants' opposition to the probate of the will on the ground that they have no personality to intervene in the case, was final and therefore appealable order insofar as they were concerned. The order appealed from is hereby affirmed, with costs against oppositors- appellants.

G.R. No. L-12207

December 24, 1959

JUAN PALACIOS, petitioner-appellant, vs. MARIA CATIMBANG PALACIOS, oppositor-appellee. Juan Palacios executed his last will and testament on June 25, 1946 and availing himself of the provisions of the new Civil Code, he filed on May 23, 1956 before the Court of First Instance of Batangas a petition for its approval. In said will, he instituted as his sole heirs his natural children Antonio C. Palacios and Andrea C. Palacios. On June 21, 1956, Maria Catimbang filed a opposition to the probate of the will alleging that she is the acknowledged natural daughter of petitioner but that she was completely ignored in said will thus impairing here legitime. After the presentation of petitioner's evidence relative to the essential requisites and formalities provided by law for the validity of a will, the court on July 6, 1956 issued an order admitting the will to probate. The court, however, set a date for the hearing of the opposition relative to the intrinsic validity of the will and, after proper hearing concerning this incident, the court issued another order declaring oppositor to be the natural child of petitioner and annulling the will insofar as it impairs her legitime, with costs against petitioner. From this last order, petitioner gave notice of his intention to appeal directly to the Supreme Court, and accordingly, the record was elavated to this Court. It should be noted that petition instituted the present proceeding in order to secure the probate of his will availing himself of the provisions of Article 838, paragraph 2, of the new Civil Code, which permit a testator to petition the proper court during his lifetime for the allowance of his will, but to such petition on Maria Catimbang filed an opposition alleging that she is the acknowledged natural daughter of petitioner but that she was completely ignored in the will thus impairing her object to the probate of the will insofar as it due execution is concerned or on the ground that it has not complied with the formalities prescribed by law; rather she objects to its intrinsic validity or to the legality of the provisions of the will. We hold that such opposition cannot be entertained in this proceeding because its only purpose is merely to determine if the will has been executed in accordance with the requirements of the law, much less if the purpose of the opposition is to show that the oppositor is an acknowledged natural child who allegedly has been ignored in the will for issue cannot be raised here but in a separate action. This is especially so when the testator, as in the present case, is still alive and has merely filed a petition for the allowance of his will leaving the effects thereof after his death.lawphi1.net This is in line with our ruling in Montaano vs. Suesa, 14 Phil., 676, wherein we said: "The authentication of the will decides no other questions than such as touch upon the capacity of the testator and the compliance with those requisites or solemnities which the law prescribes for the validity of a will. It does not determine nor even by implication prejudge the validity or efficiency of the provisions; that may be impugned as being vicious or null, notwithstanding its authentication. The questions relating to these points remain entirely un-affected, and may be raised even after the will has been authenticated." On the other hand, "after a will has been probated during the lifetime of a testator, it does not necessarily mean that he cannot alter or revoke the same before he has had a chance to present such petition, the ordinary probate proceedings after the testator's death would be in order" (Report of the Code

Commission, pp. 53-54).The reason for this comment is that the rights to the succession are transmitted from the moment of the death of the decedent (Article 777, new Civil Code.). It is clear that the trial court erred in entertaining the opposition and in annulling the portion of the will which allegedly impairs the legitime of the oppositor on the ground that, as it has found, she is an extraneous matter which should be treshed out in a separate action. Wherefore, the order appealed from is set aside, without pronouncement as to costs.

Coso vs. Fernandez deza G.R. No. L-16736 December 22, 1921 EVARISTA ROBLES and her husband ENRIQUE MARTIN, plaintiffs-appellees, vs. LIZARRAGA HERMANOS, defendants-appellant. G.R. No. L-16661 December 22, 1921 SOCIEDAD LIZARRAGA HERMANOS, plaintiff-appellee, vs. EVARISTA ROBLES DE MARTIN and ENRIQUE MARTIN, defendants-appellants. G.R. No. L-16662 December 22, 1921 EVARISTA ROBLES and her husband ENRIQUE MARTIN, plaintiff-appellants, vs. LIZARRAGA HERMANOS and THE REGISTER OF DEEDS OF ILOILO, defendants-appellees. Owing to the character of the facts in the three above entitled cases and the intimate connection existing between them, they were, by agreement of the parties, tried together in the court below, and on appeal this court was requested to try them at the same time, which was done, and these three cases are jointly adjudged in the present decision. The following facts are undisputed: Anastasia de la Rama died on the 17th of October, 1916, leaving six children, to wit, Magdalena, Jose, Evarista, Zacarias, Felix, and Purificacion, surnamed Robles, and some properties, among which is house No. 4 on Iznart Street in the city of Iloilo, concerning which a controversy arose which developed into the three cases now under consideration. The children and heirs of Anastasia de la Rama entered into partnership with Lizarraga Hermanos in liquidation and settlement of their accounts, by virtue of which the competent court awarded to said partnership the properties left by the deceased, including the aforesaid house No. 4 on Iznart Street. Evarista Robles, one of the aforesaid heirs, since before the death of her mother Anastasia de la Rama, has been with her husband occupying the aforesaid house No. 4 on Iznart Street, at the beginning, by permission of her mother, later on by the consent of her coheirs, and lastly by agreement with the partnership, Lizarraga Hermanos, to whom it had been awarded, having made some improvements on the house, the value of which is fixed at four thousand five hundred pesos (P4,500), and paying to said partnership forty pesos (P40) monthly as rent of the upper story. On March 18, 1918, Lizarraga Hermanos notified Evarista Robles (Exhibit J) that beginning April next the rent of the upper story of the house would be raised to sixty pesos (P60) a month, and that, if she did not agree to the new rate of rent, she might vacate the house. Evarista Robles refused to pay such a new rate of rent and to vacate the house, and Lizarraga Hermanos brought suit against her for ejectment. Evarista Robles sued Lizarraga Hermanos afterwards to recover the value of the improvements, and demanded, in another action, that said value be noted on the certificate of title as an encumbrance. 1awphil.net Evarista Robles contends that the understanding with Lizarraga Hermanos by virtue of which she continued to occupy the house and made the improvements, was a contract whereby it was agreed to sell

her the said building on Iznart Street, the deed of sale to be executed as soon as the title deeds of the property were transferred to the name of said partnership; that by virtue of this contract she remained in the occupation of the building and made the improvements; that, as one of the stipulations in the contract of sale of the estate, Evarista Robles assumed the liability of an encumbrance of fourteen thousand pesos (P14,000)on the estate and another one in favor of the Agricultural Bank and its successor, the National Bank, paying the interest thereon as well as the land tax and the premiums of the five insurance, all of which payments were made through the same firm of Lizarraga Hermanos who, as a result of the liquidation of accounts, held funds in their possession belonging to Exhibit A, B, C, F, H, and I. It should here be noted that Evarista Robles does not seek the execution of the proper instrument of evidence this contract of sale, nor the performance thereof. She only claims the cost of the improvements made at her expense and that this be recorded in the corresponding certificate of title. While the firm of Lizarraga Hermanos does not question that fact that said improvements have been made and that their value amounts to four thousand five hundred pesos (P4,500), it denies, however, having entered into any agreement with Evarista Robles for the sale of the building in question. In deciding the case No. 16736 of this court, the court a quo found such a verbal contract of sale to have been proven not only by Exhibit A, which leads to such a conclusion, but by the oral evidence, which, in its opinion, had a preponderance in favor thereof, and by the corroborative evidence consisting in the fact of Lizarraga Hermanos having executed the deed of sale of the warehouse mentioned in the said Exhibit A. This firm questions the right of Evarista Robles to the improvements under consideration. The fundamental questions upon which hinges the controversy in these three cases are: First, whether Evarista Robles is the owner of the aforesaid improvements and has the right to demand payment of their value (case No. 16736); second, whether she has any right to retain the building until the said value is paid to her (case No. 16661); and third, whether a note for the four thousand five hundred pesos (P4,500), the value of the above-mentioned improvements, as an encumbrance on this estate (case No. 16662), should be made on the title deeds thereof. Regarding the controversy in the case No. 16736, attention is called to article 453 of the Civil Code which reads: Necessary expenditures shall be refunded to every possessor, but only the possessor in good faith may retain the thing until they are repaid to him. Useful expenditures shall be paid the possessor in good faith with the same right to retention, the person who has defeated him in his possession having the opinion of refunding the amount of such expenditures or paying him the increase in value which the thing has acquired by reason thereof. This provision of law is in force and applies to personal as well as real property. The expenditures incurred in these improvements were not necessary inasmuch as without them the house would have continued to stand just as before, but were useful, inasmuch as with them the house better serves the purpose for which it was intended, being used as a residence, and the improvements consisting of the addition of a dining room, kitchen, closet, and bathroom in the lower and upper stories of the house, and a stable, suitable as a coach house and dwelling, it is beyond doubt that such improvements are useful to the building. One of the chiefs of the firm of Lizarraga Hermanos, on the occasion of a luncheon in the house, on noting the improvements, could not refrain from expressing that such improvements added much to the value of the building (folio 25, stenographic notes).

Now then, was Evarista Robles a possessor in good faith when she made those improvements? Article 434 provides that "good faith is always presumed and the burden of proving bad faith on the part of the possessor rests upon the person alleging it." Lizarraga Hermanos did not allege, nor prove in the first instance the bad faith characterizing Evarista Robles' possession, who, as shown in the records and heretofore stated, began to occupy the house by permission of the former owner, her mother Anastasia de la Rama, and continued later in the occupation by the consent of her coheirs, and afterwards by considering herself the future owner of the building by virtue of the contract with the present owner, Lizarraga Hermanos. The evidence shows that said improvements were begun about the end of December, 1916, after the agreement with Lizarraga Hermanos for the sale thereof to Evarista Robles. (Folios 23, 24, 25, stenographic notes.) We find that in the court below the presumption of good faith in favor of Evarista Robles' possession at the time she made the improvements on the property was neither disputed nor discussed, but on the contrary, there is positive evidence sufficient to support the conclusion that when she made the improvements on the aforesaid building she was possessing it in good faith. If the improvements are useful and Evarista Robles' possession was in good faith, the conclusion set out in article 453 of the Civil Code, supra, is inevitable; Evarista Robles is the owner of such improvements, and entitled to reimbursement therefor, and to retain the building until the same is made. One of the proofs establishing the fact that Evarista Robles' possession was in good faith is found in Exhibit A, which textually is as follows: Value of house For }Evarista Value of Warehouse Evarista pays them in this way Balance in h/f owning from L. Hnos Legacy to Evarista Legacy to J. Robles Legacy to Ambrosio Credit Agricultural Bank Paid by Zacarias Cash balance carried forward Liquidation P16,500.00

P1,424.35 500.00 500.00 100.00 14,000.00 16,524.35 24.35 16,500.00

Severiano Lizarraga acknowledged having drawn this document and admitted it to be in his own handwriting (folios 6-8, transcript of stenographic notes taken in case No. 16661 at the trial held December 6, 1919). Taking into consideration the explanation he gives of the contents of this exhibit, there is the inevitable conclusion which is obviously inferred from the phrases "Value of house of warehouse For Evarista P16,500 Evarista pays them in this way," that Evarista Robles was to become the owner of the house (which is the one question) and the warehouse for sixteen thousand five hundred pesos (P16,500), which sum she was to pay by assuming the liability of all the amounts enumerated in the said memorandum all the way through.

But the admissibility of this document as evidence is disputed by reference to section 335, case No. 5, of the Code of Civil Procedure, which in the English text, which is clearer on this point, reads: SEC. 335. Agreements invalid unless made in writing. In the following cases an agreement hereafter made shall be unenforceable (Emphasis ours) by action unless the same, or some note or memorandum thereof, be in writing, and subscribed by the party charged, or by his agent; evidence, therefore, of the agreement cannot be received without the writing, or secondary evidence of its contents: No. 5. An agreement for . . . the sale of real property, etc. It should be noted, first of all, that this rule of evidence does not go to the extent of rendering invalid any verbal contract for the sale of real property (Conlu vs. Araneta and Guanko, 15 Phil., 387), but declares inadmissible any evidence of such a contract other than the document itself of the sale or some memorandum signed by the party charged, in so far as the object of the action instituted is to enforce performance of said contract of sale. But we are not dealing with that phase in any of the cases now before us. This document was introduced only to reinforce the proofs relative to the good faith characterizing the possession of Evarista Robles when she made the improvements in question, to the effect that if she made then, it was because she entertained the well-founded, may certain belief that she was making them on a building that was to become her property by virtue of the verbal contract of sale. In the action wherein Evarista Robles and her husband ask that they be adjudged owners of these improvements and that their value be paid to them, Lizarraga Hermanos filed a general denied and a counterclaim and cross-complaint for nineteen thousand pesos (P19,000) as compensation for damages alleged to have been sustained by them on account of their inability to sell the house and the warehouse, due to the fact that the buyer imposed the condition that the house should be vacated, which the plaintiffs refused to do. It is a fact that the value of the improvements in question has not as yet been paid by Lizarraga Hermanos. Wherefore, if Evarista Robles and her husband are entitled to retain the building until the value of such improvements is paid them, Lizarraga Hermanos have not yet any right to oust them from the building, nor, therefore, to be indemnified for any damages caused by the refusal of the plaintiffs found on their legitimate rights. In regard to the ejectment sought in the case No. 16661, the suit was brought by Lizarraga Hermanos in the justice of the peace court of Iloilo on May 6, 1918, based on the failure of Evarista Robles and her husband to pay the rent of the upper story of the house in question for the month of April of that year, amounting to sixty pesos (P60), and on the refusal of said spouses to quit the building. These spouses in their answer alleged as special defense that they had never been the tenants of Lizarraga Hermanos until November, 1917, when they became so "under the special circumstances" under which the plaintiff partnership sold the building, whereon they later made, with the latter's consent, improvements amounting to four thousand five hundred pesos (P4,500), setting out the other stipulations and conditions hereinabove stated, which were incorporated into the contract of sale, and prayed, under their counterclaim, that Lizarraga Hermanos be sentenced to pay the sum of four thousand five hundred pesos (P4,500), the value of the improvements referred to, and under their cross-complaint, that said partnership be ordered to pay then thousand pesos (P10,000) as compensation for damages alleged to have been sustained by the aforesaid spouses due to the aforesaid partnership's act, praying lastly, in view of the questions raised, that the case be regarded not as one of unlawful detainer, but for the recovery of

title to real property, and that the court of the justice of the peace abstain from taking cognizance thereof for want of jurisdiction. The case having been appealed to the Court of First Instance, these allegations were reproduced. In the Court of First Instance Lizarraga Hermanos demurred to this counterclaim and cross-complaint, and the demurrer was sustained by the court in its decision on the merits of the case, whereby the defendants are sentenced to return to Lizarraga Hermanos the possession of the building, to pay the rents thereof due from April, 1918, until they vacate the house, at the rate of sixty pesos (P60) per month, and the costs. From this judgment Evarista Robles and her husband have appealed, assigning as errors of the court a quo in finding the Lizarraga Hermanos were entitled to bring action for unlawful detainer, and ordering them to return the possession of the building. If Evarista Robles and her husband were mere lessees of this building, the plaintiff's action for unlawful detainer is obvious and must prosper. But, were Evarista Robles and her husband mere lessees? As above stated, we hold that there existed a contract of sale of this building executed by Lizarraga Hermanos in favor of Evarista Robles about November, 1916, the performance of which is not, however, sought to be enforced, nor would it be enforceable if the evidence offered in the action instituted for the purpose be not the document itself of the sale, or a memorandum thereof, signed by the party bound by the contract and required in the action to fulfill it, and objection be made to said evidence, as was done here. The possession of these spouses was in no way begun by virtue of any lease whatever, since it is not disputed, and is a proven fact, that they came to occupy the building by permission of the mother of Evarista Robles. Upon said mother's death, the continued to occupy the property by the consent of the coheirs. After the assignment of the property of Lizarraga Hermanos was concluded, but before the title deeds were transferred to the name of this partnership, an agreement was made for the sale of the building to Evarista Robles and her husband, the latter agreeing in the meantime to pay to Lizarraga Hermanos a certain sum per month forty pesos (P40) by way of compensation for the occupation of the building until the execution of the deed of sale in favor of the occupants. Considering abstractly the naked fact that these spouses occupied the house by paying a certain sum for its occupation, it would seem that this is indeed a case of lease. But such was not the contract. It was simply the sense of justice of the parties that led them to make the stipulation that, while the conveyance of the building was being carried into effect in due form, the future owners should pay a certain sum for its possession. This peculiar situation continued for all the time in which the said spouses made and completed the improvements in question until Lizarraga Hermanos changed their resolution to sell the building to Evarista Robles and her husband. But then all the improvements in question had already been made, and when these spouses were requested to vacate the building, they answered and gave it to understand, that they would do so as soon as the value of the improvements was paid to them. Up to that time they were not lessees strictly speaking. Did they become so afterwards? Neither; for since that moment they have been as are at present, in possession of the building by virtue of the right that they had, and do have, to retain it until the value of the improvements is paid to them. And it was after these spouses had manifested their intention not to leave the building until they were reimbursed for the improvements made thereon that this action for unlawful detainer was instituted.

Before these improvements were made, or before these spouses demanded payment of their value, that is, while the possession was partly based on the stipulation with color of lease, an action for unlawful detainer might have, in a sense, been justifiable, though not entirely maintainable, owing to the fact that such possession was based primarily on the well-founded belief of the occupants that they were to become the owners of the house in their possession, that the monthly payment being a provisional arrangement, an incidental and peremptory stipulation, while the solemn formalities of the conveyance were being complied with. But after the improvements had been made and Lizarraga Hermanos had manifested their resolution to rescind the contract of sale and not to pay for them, then the possession of the aforesaid spouses lost all color of lease, and turns out to be possession based only upon the latter's right to retain the building. And these were all the attending circumstances of said possession when the action for unlawful detainer was commenced. We are, therefore, of opinion, and so hold, that Lizarraga Hermanos were not, and are not, entitled to maintain any action for unlawful detainer so long as they do not pay the value of the improvements in question. We will now take up the case No. 16662 wherein Evarista Robles and her husband ask that these improvements be noted on the proper certificate of title as an encumbrance. These spouses pray in their complaint for the cancellation of the said certificate of title, which is the transfer certificate No. 526, a substitute of the original No. 32 of the office of the register of deeds of Iloilo. If the object of these spouses is, as it cannot be otherwise, to have such an encumbrance noted, the cancellation is not necessary, and, of course, not justifiable. At any rate, the fraud alleged in this last action to have been committed precisely to secure such a transfer certificate cannot be held proven. But it having been decided that these spouses are entitled to demand payment of the value of the improvements and to retain the building until such value is paid them, it only remains for us to determine whether this right of retention has the character of a real right to be regarded as one of the encumbrances referred to in section 70 and the following sections of the Land Registration Act. It being a burden on the building to the extent of being inseparably attached to the possession thereof, this right of retention must necessarily be a real one. If so, as we regard, and find, it to be, it is but just that such an encumbrance should be noted on the transfer certificate No. 526 issued by the register of deeds of Iloilo in favor of Lizarraga Hermanos, or on any substitute thereof. As a consequence of all the foregoing, we affirm the judgments appealed from in the three cases in so far as they are in harmony with the conclusions herein set out, and reverse them in so far as they are in conflict therewith, and it is hereby adjudged and decreed: First. That Lizarraga Hermanos pay to the spouses Evarista Robles and Enrique Martin the sum of four thousand five hundred pesos (P4,500), the value of the improvements referred to in these cases, with right on the part of said spouses to retain the building in question until the payment hereby ordered is made. Second. That said spouses Evarista Robles and Enrique Martin vacate the aforesaid building immediately after the receipt, or the legal tender, of the payment hereby decreed.

Third. That the said spouses Evarista Robles and Enrique Martin pay to Lizarraga Hermanos a compensation for the occupation of the building at the rate of forty pesos (P40) a month, beginning with the month of April, 1918, until they vacate the aforesaid building as it is ordered herein. Fourth. That upon payment of his lawful fees, the register of deeds note said right of retention on the back of the transfer certificate No. 526 issued in favor of Lizarraga Hermanos, or of any other certificate standing in lieu thereof, concerning the said building, which note will remain in force until the payment of the aforesaid improvements is made as above ordered. Without pronouncement as to the costs in this instance, so ordered.