Succession

FIRST DIVISION
[G.R. No. 123486. August 12, 1999]
EUGENIA RAMONAL CODOY, and MANUEL RAMONAL, petitioners, vs. EVANGELINE R.
CALUGAY, JOSEPHINE SALCEDO, and EUFEMIA PATIGAS, respondents.
Codoy vs Calugay

Facts: The deceased Matilde Seno Vda de Ramonal executed a holographic will on August 30,
1978. Herein respondents Eugenia Calugay, Josephine Salcedo and Eufemia Patigas are
devisees and legatees of the holographic will of the deceased. They filed with the RTC of
Misamis a petition for probate of the holographic will of Matilde who died on 16 January 1990.
Petitioners Eugenia Codoy and Manuel Ramonal filed an opposition to the probate stating that
the holographic will was a forgery and the same was illegible. Respondents however contend
that the deceased was of sound and disposing mind when she executed the will and that no
fraud or undue influence and duress happened and that the will was written voluntarily. They
presented six witnesses with various documentary evidence. Petitioners on their part filed a
demurrer to evidence claiming that respondents failed to establish to establish sufficient factual
and legal basis for the probate of the holographic will of the deceased Matilde Seo Vda. de
Ramonal. All the 6 witnesses that respondents presented expressed familiarity with the
deceaseds signature. But there was no mention of the fact that there were witnesses at the
time Matilde executed the will. The lower court denied the probate. On appeal, respondents
again reiterated the testimony of the witnesses Augusto, Generosa, Matilde Binanay, Teresita,
Fiscal Waga, and Evangeline. The CA sustained the authenticity of the holographic will and
allowed the probate. Hence this petition.

Issue: Whether or not the provisions of Article 811 of the Civil Code are permissive or
mandatory

Held. The Court ruled that it is mandatory. The article provides, as a requirement for the probate
of a contested holographic will, that at least three witnesses explicitly declare that the signature
in the will is the genuine signature of the testator. The word shall connotes a mandatory
order. We have ruled that shall in a statute commonly denotes an imperative obligation and is
inconsistent with the idea of discretion and that the presumption is that the word shall, when
used in a statute is mandatory. Fiscal Waga one of the witnesses expressed doubts as to the
signature of the deceased. Evangeline, on her part, testified that as to why she was familiar with
the handwriting of the deceased was because she lived with her since birth. She never
declared that she saw the deceased write a note or sign a document. In Matildes testimony, she
saw

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Succession
pre-prepared receipts and letters of the deceased, which she either mailed or gave to her
tenants. She did not declare that she saw the deceased sign a document or write a note.
Furthermore, in her testimony it was also evident that Ms. Binanay kept the fact about the will
from petitioners, the legally adopted children of the deceased. The will was also not found in the
possession of the deceased when she died. Such actions put in issue her motive of keeping the
will a secret to petitioners and revealing it only after the death of Matilde Seo Vda. de
Ramonal. Comparing the signature in the holographic will dated August 30, 1978, [33] and the
signatures in several documents such as the application letter for pasture permit dated
December 30, 1980,[34] and a letter dated June 16, 1978,[35] the strokes are different. In the
letters, there are continuous flows of the strokes, evidencing that there is no hesitation in writing
unlike that of the holographic will. We, therefore, cannot be certain that the holographic will was
in the handwriting by the deceased.

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