Codoy

312 SCRA 333

v.

Calugay

FACTS:
On 6 April 1990, Evangeline Calugay, Josephine Salcedo and Eufemia Patigas,
devisees and legatees of the holographic will of the deceased Matilde Seo
Vda. de Ramonal, filed a petition for probate of the said will. They attested to
the genuineness and due execution of the will on 30 August 1978.
Eugenio Ramonal Codoy and Manuel Ramonal filed their opposition claiming
that the will was a forgery and that the same is even illegible. They raised
doubts as regards the repeated appearing on the will after every disposition,
calling the same out of the ordinary. If the will was in the handwriting of the
deceased, it was improperly procured.
Evangeline Calugay, etc. presented 6 witnesses and various documentary
evidence.
The first witness was the clerk of court of the probate court who produced and
identified the records of the case bearing the signature of the deceased.
The second witness was election registrar who was made to produce and
identify the voters affidavit, but failed to as the same was already destroyed
and no longer available.
The third, the deceaseds niece, claimed that she had acquired familiarity with
the deceaseds signature and handwriting as she used to accompany her in
collecting rentals from her various tenants of commercial buildings and the
deceased always issued receipts. The niece also testified that the deceased left
a holographic will entirely written, dated and signed by said deceased.
The fourth witness was a former lawyer for the deceased in the intestate
proceedings of her late husband, who said that the signature on the will was
similar to that of the deceased but that he can not be sure.
The fifth was an employee of the DENR who testified that she was familiar
with the signature of the deceased which appeared in the latters application
for pasture permit. The fifth, respondent Evangeline Calugay, claimed that she
had lived with the deceased since birth where she had become familiar with
her signature and that the one appearing on the will was genuine.

Codoy and Ramonals demurrer to evidence was granted by the lower court. It
was reversed on appeal with the Court of Appeals which granted the probate.
ISSUE:
1. W/N Article 811 of the Civil Code, providing that at least three witnesses
explicitly declare the signature in a contested will as the genuine signature of
the testator, is mandatory or directory.
2. Whether or not the witnesses sufficiently establish the authenticity and due
execution of the deceaseds holographic will.
HELD:
1. YES. The word shall connotes a mandatory order, 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.
In the case at bar, the goal to be achieved by the law, is to give effect to the
wishes of the deceased and the evil to be prevented is the possibility that
unscrupulous individuals who for their benefit will employ means to defeat
the wishes of the testator.
The paramount consideration in the present petition is to determine the true
intent of the deceased.
2. NO. We cannot be certain that the holographic will was in the handwriting
of the deceased.
The clerk of court was not presented to declare explicitly that the signature
appearing in the holographic will was that of the deceased.
The election registrar was not able to produce the voters affidavit for
verification as it was no longer available.
The deceaseds niece saw pre-prepared receipts and letters of the deceased
and did not declare that she saw the deceased sign a document or write a note.
The will was not found in the personal belongings of the deceased but was in
the possession of the said niece, who kept the fact about the will from the
children of the deceased, putting in issue her motive.

Evangeline Calugay never declared that she saw the decreased write a note or
sign a document.
The former lawyer of the deceased expressed doubts as to the authenticity of
the signature in the holographic will.
(As it appears in the foregoing, the three-witness requirement was not
complied with.)
A visual examination of the holographic will convinces that the strokes are
different when compared with other documents written by the testator.
The records are remanded to allow the oppositors to adduce evidence in
support of their opposition.
The object of 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 the right to make a will.
However, we cannot eliminate the possibility of a false document being
adjudged as the will of the testator, which is why if the holographic will is
contested, the law requires three witnesses to declare that the will was in the
handwriting of the deceased.
Article 811, paragraph 1. provides: In the probate of a holographic will, it
shall be necessary that at least one witness who knows the handwriting and
signature of the testator explicitly declare that the will and the signature are in
the handwriting of the testator. If the will is contested, at least three of such
witnesses shall be required.
The word shall connotes a mandatory order, 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.