EN BANC residue of my property and estate, real, personal and/or mixed, of whatsoever kind or
character, and wheresoever situated, of which I may be possessed at my death and which may
G.R. No. L-16749 January 31, 1963
IN THE MATTER OF THE TESTATE ESTATE OF EDWARD E. CHRISTENSEN, DECEASED.
ADOLFO C. AZNAR, Executor and LUCY CHRISTENSEN, Heir of the deceased, Executor and Heir-
appellees,
vs.
HELEN CHRISTENSEN GARCIA, oppositor-appellant.
M. R. Sotelo for executor and heir-appellees.
Leopoldo M. Abellera and Jovito Salonga for oppositor-appellant.
LABRADOR, J.:
This is an appeal from a decision of the Court of First Instance of Davao, Hon. Vicente N. Cusi, Jr.,
presiding, in Special Proceeding No. 622 of said court, dated September 14, 1949, approving among
things the final accounts of the executor, directing the executor to reimburse Maria Lucy Christensen the
amount of P3,600 paid by her to Helen Christensen Garcia as her legacy, and declaring Maria Lucy
Christensen entitled to the residue of the property to be enjoyed during her lifetime, and in case of death
without issue, one-half of said residue to be payable to Mrs. Carrie Louise C. Borton, etc., in accordance
with the provisions of the will of the testator Edward E. Christensen. The will was executed in Manila on
March 5, 1951 and contains the following provisions:
3. I declare ... that I have but ONE (1) child, named MARIA LUCY CHRISTENSEN (now Mrs.
Bernard Daney), who was born in the Philippines about twenty-eight years ago, and who is
now residing at No. 665 Rodger Young Village, Los Angeles, California, U.S.A.
4. I further declare that I now have no living ascendants, and no descendants except my above
named daughter, MARIA LUCY CHRISTENSEN DANEY.
xxx xxx xxx
7. I give, devise and bequeath unto MARIA HELEN CHRISTENSEN, now married to Eduardo
Garcia, about eighteen years of age and who, notwithstanding the fact that she was baptized
Christensen, is not in any way related to me, nor has she been at any time adopted by me, and
who, from all information I have now resides in Egpit, Digos, Davao, Philippines, the sum of
THREE THOUSAND SIX HUNDRED PESOS (P3,600.00), Philippine Currency the same to be
deposited in trust for the said Maria Helen Christensen with the Davao Branch of the Philippine
National Bank, and paid to her at the rate of One Hundred Pesos (P100.00), Philippine
Currency per month until the principal thereof as well as any interest which may have accrued
thereon, is exhausted..
xxx xxx xxx
12. I hereby give, devise and bequeath, unto my well-beloved daughter, the said MARIA LUCY
CHRISTENSEN DANEY (Mrs. Bernard Daney), now residing as aforesaid at No. 665 Rodger
Young Village, Los Angeles, California, U.S.A., all the income from the rest, remainder, and
have come to me from any source whatsoever, during her lifetime: ....
It is in accordance with the above-quoted provisions that the executor in his final account and project of
partition ratified the payment of only P3,600 to Helen Christensen Garcia and proposed that the residue
of the estate be transferred to his daughter, Maria Lucy Christensen.
Opposition to the approval of the project of partition was filed by Helen Christensen Garcia, insofar as it
deprives her (Helen) of her legitime as an acknowledged natural child, she having been declared by Us
in G.R. Nos. L-11483-84 an acknowledged natural child of the deceased Edward E. Christensen. The
legal grounds of opposition are (a) that the distribution should be governed by the laws of the
Philippines, and (b) that said order of distribution is contrary thereto insofar as it denies to Helen
Christensen, one of two acknowledged natural children, one-half of the estate in full ownership. In
amplification of the above grounds it was alleged that the law that should govern the estate of the
deceased Christensen should not be the internal law of California alone, but the entire law thereof
because several foreign elements are involved, that the forum is the Philippines and even if the case
were decided in California, Section 946 of the California Civil Code, which requires that the domicile of
the decedent should apply, should be applicable. It was also alleged that Maria Helen Christensen
having been declared an acknowledged natural child of the decedent, she is deemed for all purposes
legitimate from the time of her birth.
The court below ruled that as Edward E. Christensen was a citizen of the United States and of the State
of California at the time of his death, the successional rights and intrinsic validity of the provisions in his
will are to be governed by the law of California, in accordance with which a testator has the right to
dispose of his property in the way he desires, because the right of absolute dominion over his property
is sacred and inviolable (In re McDaniel's Estate, 77 Cal. Appl. 2d 877, 176 P. 2d 952, and In re
Kaufman, 117 Cal. 286, 49 Pac. 192, cited in page 179, Record on Appeal). Oppositor Maria Helen
Christensen, through counsel, filed various motions for reconsideration, but these were denied. Hence,
this appeal.
The most important assignments of error are as follows:
I
THE LOWER COURT ERRED IN IGNORING THE DECISION OF THE HONORABLE SUPREME
COURT THAT HELEN IS THE ACKNOWLEDGED NATURAL CHILD OF EDWARD E. CHRISTENSEN
AND, CONSEQUENTLY, IN DEPRIVING HER OF HER JUST SHARE IN THE INHERITANCE.
II
THE LOWER COURT ERRED IN ENTIRELY IGNORING AND/OR FAILING TO RECOGNIZE THE
EXISTENCE OF SEVERAL FACTORS, ELEMENTS AND CIRCUMSTANCES CALLING FOR THE
APPLICATION OF INTERNAL LAW.
III
THE LOWER COURT ERRED IN FAILING TO RECOGNIZE THAT UNDER INTERNATIONAL LAW,
PARTICULARLY UNDER THE RENVOI DOCTRINE, THE INTRINSIC VALIDITY OF THE
TESTAMENTARY DISPOSITION OF THE DISTRIBUTION OF THE ESTATE OF THE DECEASED
EDWARD E. CHRISTENSEN SHOULD BE GOVERNED BY THE LAWS OF THE PHILIPPINES.
IV
THE LOWER COURT ERRED IN NOT DECLARING THAT THE SCHEDULE OF DISTRIBUTION
SUBMITTED BY THE EXECUTOR IS CONTRARY TO THE PHILIPPINE LAWS.
V Sec. 16. Residence is a term used with many shades of meaning from mere temporary
THE LOWER COURT ERRED IN NOT DECLARING THAT UNDER THE PHILIPPINE LAWS HELEN
CHRISTENSEN GARCIA IS ENTITLED TO ONE-HALF (1/2) OF THE ESTATE IN FULL OWNERSHIP.
There is no question that Edward E. Christensen was a citizen of the United States and of the State of
California at the time of his death. But there is also no question that at the time of his death he was
domiciled in the Philippines, as witness the following facts admitted by the executor himself in appellee's
brief:
In the proceedings for admission of the will to probate, the facts of record show that the
deceased Edward E. Christensen was born on November 29, 1875 in New York City, N.Y.,
U.S.A.; his first arrival in the Philippines, as an appointed school teacher, was on July 1, 1901,
on board the U.S. Army Transport "Sheridan" with Port of Embarkation as the City of San
Francisco, in the State of California, U.S.A. He stayed in the Philippines until 1904.
In December, 1904, Mr. Christensen returned to the United States and stayed there for the
following nine years until 1913, during which time he resided in, and was teaching school in
Sacramento, California.
Mr. Christensen's next arrival in the Philippines was in July of the year 1913. However, in
1928, he again departed the Philippines for the United States and came back here the
following year, 1929. Some nine years later, in 1938, he again returned to his own country, and
came back to the Philippines the following year, 1939.
Wherefore, the parties respectfully pray that the foregoing stipulation of facts be admitted and
approved by this Honorable Court, without prejudice to the parties adducing other evidence to
prove their case not covered by this stipulation of facts. 1wph1.t Code of the Philippines, which is as follows:
Being an American citizen, Mr. Christensen was interned by the Japanese Military Forces in
the Philippines during World War II. Upon liberation, in April 1945, he left for the United States
but returned to the Philippines in December, 1945. Appellees Collective Exhibits "6", CFI
Davao, Sp. Proc. 622, as Exhibits "AA", "BB" and "CC-Daney"; Exhs. "MM", "MM-l", "MM-2-
Daney" and p. 473, t.s.n., July 21, 1953.)
In April, 1951, Edward E. Christensen returned once more to California shortly after the making
of his last will and testament (now in question herein) which he executed at his lawyers' offices
in Manila on March 5, 1951. He died at the St. Luke's Hospital in the City of Manila on April 30,
1953. (pp. 2-3)
In arriving at the conclusion that the domicile of the deceased is the Philippines, we are persuaded by
the fact that he was born in New York, migrated to California and resided there for nine years, and since
he came to the Philippines in 1913 he returned to California very rarely and only for short visits (perhaps
to relatives), and considering that he appears never to have owned or acquired a home or properties in
that state, which would indicate that he would ultimately abandon the Philippines and make home in the
State of California.
presence to the most permanent abode. Generally, however, it is used to denote something
more than mere physical presence. (Goodrich on Conflict of Laws, p. 29)
As to his citizenship, however, We find that the citizenship that he acquired in California when he
resided in Sacramento, California from 1904 to 1913, was never lost by his stay in the Philippines, for
the latter was a territory of the United States (not a state) until 1946 and the deceased appears to have
considered himself as a citizen of California by the fact that when he executed his will in 1951 he
declared that he was a citizen of that State; so that he appears never to have intended to abandon his
California citizenship by acquiring another. This conclusion is in accordance with the following principle
expounded by Goodrich in his Conflict of Laws.
The terms "'residence" and "domicile" might well be taken to mean the same thing, a place of
permanent abode. But domicile, as has been shown, has acquired a technical meaning. Thus
one may be domiciled in a place where he has never been. And he may reside in a place
where he has no domicile. The man with two homes, between which he divides his time,
certainly resides in each one, while living in it. But if he went on business which would require
his presence for several weeks or months, he might properly be said to have sufficient
connection with the place to be called a resident. It is clear, however, that, if he treated his
settlement as continuing only for the particular business in hand, not giving up his former
"home," he could not be a domiciled New Yorker. Acquisition of a domicile of choice requires
the exercise of intention as well as physical presence. "Residence simply requires bodily
presence of an inhabitant in a given place, while domicile requires bodily presence in that
place and also an intention to make it one's domicile." Residence, however, is a term used with
many shades of meaning, from the merest temporary presence to the most permanent abode,
and it is not safe to insist that any one use et the only proper one. (Goodrich, p. 29)
The law that governs the validity of his testamentary dispositions is defined in Article 16 of the Civil
ART. 16. Real property as well as personal property is subject to the law of the country where
it is situated.
However, intestate and testamentary successions, both with respect to the order of succession
and to the amount of successional rights and to the intrinsic validity of testamentary provisions,
shall be regulated by the national law of the person whose succession is under consideration,
whatever may be the nature of the property and regardless of the country where said property
may be found.
The application of this article in the case at bar requires the determination of the meaning of the
term "national law"is used therein.
There is no single American law governing the validity of testamentary provisions in the United States,
each state of the Union having its own private law applicable to its citizens only and in force only within
the state. The "national law" indicated in Article 16 of the Civil Code above quoted can not, therefore,
possibly mean or apply to any general American law. So it can refer to no other than the private law of
the State of California.
The next question is: What is the law in California governing the disposition of personal property? The
decision of the court below, sustains the contention of the executor-appellee that under the California
Probate Code, a testator may dispose of his property by will in the form and manner he desires, citing
the case of Estate of McDaniel, 77 Cal. Appl. 2d 877, 176 P. 2d 952. But appellant invokes the
provisions of Article 946 of the Civil Code of California, which is as follows:
If there is no law to the contrary, in the place where personal property is situated, it is deemed
to follow the person of its owner, and is governed by the law of his domicile.
The existence of this provision is alleged in appellant's opposition and is not denied. We have checked
it in the California Civil Code and it is there. Appellee, on the other hand, relies on the case cited in the
decision and testified to by a witness. (Only the case of Kaufman is correctly cited.) It is argued on
executor's behalf that as the deceased Christensen was a citizen of the State of California, the internal
law thereof, which is that given in the abovecited case, should govern the determination of the validity of
the testamentary provisions of Christensen's will, such law being in force in the State of California of
which Christensen was a citizen. Appellant, on the other hand, insists that Article 946 should be
applicable, and in accordance therewith and following the doctrine of the renvoi, the question of the
validity of the testamentary provision in question should be referred back to the law of the decedent's
domicile, which is the Philippines.
The theory of doctrine of renvoi has been defined by various authors, thus:
The problem has been stated in this way: "When the Conflict of Laws rule of the forum refers a
jural matter to a foreign law for decision, is the reference to the purely internal rules of law of
the foreign system; i.e., to the totality of the foreign law minus its Conflict of Laws rules?"
On logic, the solution is not an easy one. The Michigan court chose to accept the renvoi, that
is, applied the Conflict of Laws rule of Illinois which referred the matter back to Michigan law.
But once having determined the the Conflict of Laws principle is the rule looked to, it is difficult
to see why the reference back should not have been to Michigan Conflict of Laws. This would
have resulted in the "endless chain of references" which has so often been criticized be legal
writers. The opponents of the renvoi would have looked merely to the internal law of Illinois,
thus rejecting the renvoi or the reference back. Yet there seems no compelling logical reason
why the original reference should be the internal law rather than to the Conflict of Laws rule. It
is true that such a solution avoids going on a merry-go-round, but those who have accepted
the renvoi theory avoid this inextricabilis circulas by getting off at the second reference and at
that point applying internal law. Perhaps the opponents of the renvoi are a bit more consistent
for they look always to internal law as the rule of reference.
Strangely enough, both the advocates for and the objectors to the renvoi plead that greater
uniformity will result from adoption of their respective views. And still more strange is the fact
that the only way to achieve uniformity in this choice-of-law problem is if in the dispute the two
states whose laws form the legal basis of the litigation disagree as to whether
the renvoi should be accepted. If both reject, or both accept the doctrine, the result of the
litigation will vary with the choice of the forum. In the case stated above, had the Michigan
court rejected the renvoi, judgment would have been against the woman; if the suit had been
brought in the Illinois courts, and they too rejected the renvoi, judgment would be for the
woman. The same result would happen, though the courts would switch with respect to which
would hold liability, if both courts accepted the renvoi.
The Restatement accepts the renvoi theory in two instances: where the title to land is in
question, and where the validity of a decree of divorce is challenged. In these cases the
Conflict of Laws rule of the situs of the land, or the domicile of the parties in the divorce case,
is applied by the forum, but any further reference goes only to the internal law. Thus, a
person's title to land, recognized by the situs, will be recognized by every court; and every
divorce, valid by the domicile of the parties, will be valid everywhere. (Goodrich, Conflict of
Laws, Sec. 7, pp. 13-14.)
X, a citizen of Massachusetts, dies intestate, domiciled in France, leaving movable property in
Massachusetts, England, and France. The question arises as to how this property is to be
distributed among X's next of kin.
Assume (1) that this question arises in a Massachusetts court. There the rule of the conflict of
laws as to intestate succession to movables calls for an application of the law of the
deceased's last domicile. Since by hypothesis X's last domicile was France, the natural thing
for the Massachusetts court to do would be to turn to French statute of distributions, or
whatever corresponds thereto in French law, and decree a distribution accordingly. An
examination of French law, however, would show that if a French court were called upon to
determine how this property should be distributed, it would refer the distribution to the national
law of the deceased, thus applying the Massachusetts statute of distributions. So on the
surface of things the Massachusetts court has open to it alternative course of action: (a) either
to apply the French law is to intestate succession, or (b) to resolve itself into a French court
and apply the Massachusetts statute of distributions, on the assumption that this is what a
French court would do. If it accepts the so-called renvoidoctrine, it will follow the latter course,
thus applying its own law.
This is one type of renvoi. A jural matter is presented which the conflict-of-laws rule of the
forum refers to a foreign law, the conflict-of-laws rule of which, in turn, refers the matter back
again to the law of the forum. This is renvoi in the narrower sense. The German term for this
judicial process is 'Ruckverweisung.'" (Harvard Law Review, Vol. 31, pp. 523-571.)
After a decision has been arrived at that a foreign law is to be resorted to as governing a
particular case, the further question may arise: Are the rules as to the conflict of laws contained
in such foreign law also to be resorted to? This is a question which, while it has been
considered by the courts in but a few instances, has been the subject of frequent discussion by
textwriters and essayists; and the doctrine involved has been descriptively designated by them
as the "Renvoyer" to send back, or the "Ruchversweisung", or the "Weiterverweisung", since
an affirmative answer to the question postulated and the operation of the adoption of the
 foreign law in toto would in many cases result in returning the main controversy to be decided
according to the law of the forum. ... (16 C.J.S. 872.)
Another theory, known as the "doctrine of renvoi", has been advanced. The theory of the
doctrine of renvoi is that the court of the forum, in determining the question before it, must take
into account the whole law of the other jurisdiction, but also its rules as to conflict of laws, and
then apply the law to the actual question which the rules of the other jurisdiction prescribe. This
may be the law of the forum. The doctrine of the renvoi has generally been repudiated by the
American authorities. (2 Am. Jur. 296)
The scope of the theory of renvoi has also been defined and the reasons for its application in a country
explained by Prof. Lorenzen in an article in the Yale Law Journal, Vol. 27, 1917-1918, pp. 529-531. The
pertinent parts of the article are quoted herein below:
The recognition of the renvoi theory implies that the rules of the conflict of laws are to be
understood as incorporating not only the ordinary or internal law of the foreign state or country,
but its rules of the conflict of laws as well. According to this theory 'the law of a country' means
the whole of its law.
xxx xxx xxx
Von Bar presented his views at the meeting of the Institute of International Law, at Neuchatel,
in 1900, in the form of the following theses:
(1) Every court shall observe the law of its country as regards the application of foreign laws.
(2) Provided that no express provision to the contrary exists, the court shall respect:
(a) The provisions of a foreign law which disclaims the right to bind its nationals
abroad as regards their personal statute, and desires that said personal statute shall
be determined by the law of the domicile, or even by the law of the place where the
act in question occurred.
(b) The decision of two or more foreign systems of law, provided it be certain that one
of them is necessarily competent, which agree in attributing the determination of a
question to the same system of law.
xxx xxx xxx
If, for example, the English law directs its judge to distribute the personal estate of an
Englishman who has died domiciled in Belgium in accordance with the law of his domicile, he
must first inquire whether the law of Belgium would distribute personal property upon death in
accordance with the law of domicile, and if he finds that the Belgian law would make the
distribution in accordance with the law of nationality that is the English law he must
accept this reference back to his own law.
We note that Article 946 of the California Civil Code is its conflict of laws rule, while the rule applied in In
re Kaufman, Supra, its internal law. If the law on succession and the conflict of laws rules of California
are to be enforced jointly, each in its own intended and appropriate sphere, the principle cited In re
Kaufman should apply to citizens living in the State, but Article 946 should apply to such of its citizens
as are not domiciled in California but in other jurisdictions. The rule laid down of resorting to the law of
the domicile in the determination of matters with foreign element involved is in accord with the general
principle of American law that the domiciliary law should govern in most matters or rights which follow
the person of the owner.
When a man dies leaving personal property in one or more states, and leaves a will directing
the manner of distribution of the property, the law of the state where he was domiciled at the
time of his death will be looked to in deciding legal questions about the will, almost as
completely as the law of situs is consulted in questions about the devise of land. It is logical
that, since the domiciliary rules control devolution of the personal estate in case of intestate
succession, the same rules should determine the validity of an attempted testamentary
dispostion of the property. Here, also, it is not that the domiciliary has effect beyond the
borders of the domiciliary state. The rules of the domicile are recognized as controlling by the
Conflict of Laws rules at the situs property, and the reason for the recognition as in the case of
intestate succession, is the general convenience of the doctrine. The New York court has said
on the point: 'The general principle that a dispostiton of a personal property, valid at the
domicile of the owner, is valid anywhere, is one of the universal application. It had its origin in
that international comity which was one of the first fruits of civilization, and it this age, when
business intercourse and the process of accumulating property take but little notice of
boundary lines, the practical wisdom and justice of the rule is more apparent than ever.
(Goodrich, Conflict of Laws, Sec. 164, pp. 442-443.)
Appellees argue that what Article 16 of the Civil Code of the Philippines pointed out as the national
law is the internal law of California. But as above explained the laws of California have prescribed two
sets of laws for its citizens, one for residents therein and another for those domiciled in other
jurisdictions. Reason demands that We should enforce the California internal law prescribed for its
citizens residing therein, and enforce the conflict of laws rules for the citizens domiciled abroad. If we
must enforce the law of California as in comity we are bound to go, as so declared in Article 16 of our
Civil Code, then we must enforce the law of California in accordance with the express mandate thereof
and as above explained, i.e., apply the internal law for residents therein, and its conflict-of-laws rule for
those domiciled abroad.
It is argued on appellees' behalf that the clause "if there is no law to the contrary in the place where the
property is situated" in Sec. 946 of the California Civil Code refers to Article 16 of the Civil Code of the
Philippines and that the law to the contrary in the Philippines is the provision in said Article 16 that
the national law of the deceased should govern. This contention can not be sustained. As explained in
the various authorities cited above the national law mentioned in Article 16 of our Civil Code is the law
on conflict of laws in the California Civil Code, i.e., Article 946, which authorizes the reference or return
of the question to the law of the testator's domicile. The conflict of laws rule in California, Article 946,
Civil Code, precisely refers back the case, when a decedent is not domiciled in California, to the law of
his domicile, the Philippines in the case at bar. The court of the domicile can not and should not refer
the case back to California; such action would leave the issue incapable of determination because the
case will then be like a football, tossed back and forth between the two states, between the country of
which the decedent was a citizen and the country of his domicile. The Philippine court must apply its
own law as directed in the conflict of laws rule of the state of the decedent, if the question has to be
decided, especially as the application of the internal law of California provides no legitime for children
while the Philippine law, Arts. 887(4) and 894, Civil Code of the Philippines, makes natural children
legally acknowledged forced heirs of the parent recognizing them.

The Philippine cases (In re Estate of Johnson, 39 Phil. 156; Riera vs. Palmaroli, 40 Phil. 105; Miciano
vs. Brimo, 50 Phil. 867; Babcock Templeton vs. Rider Babcock, 52 Phil. 130; and Gibbs vs.
Government, 59 Phil. 293.) cited by appellees to support the decision can not possibly apply in the case
at bar, for two important reasons, i.e., the subject in each case does not appear to be a citizen of a state
in the United States but with domicile in the Philippines, and it does not appear in each case that there
exists in the state of which the subject is a citizen, a law similar to or identical with Art. 946 of the
California Civil Code.

We therefore find that as the domicile of the deceased Christensen, a citizen of California, is the
Philippines, the validity of the provisions of his will depriving his acknowledged natural child, the
appellant, should be governed by the Philippine Law, the domicile, pursuant to Art. 946 of the Civil Code
of California, not by the internal law of California..

WHEREFORE, the decision appealed from is hereby reversed and the case returned to the lower court
with instructions that the partition be made as the Philippine law on succession provides. Judgment
reversed, with costs against appellees.

Padilla, Bautista Angelo, Concepcion, Reyes, Barrera, Paredes, Dizon, Regala and Makalintal, JJ.,
concur.
Bengzon, C.J., took no part.
 EN BANC
G.R. No. L-22595 November 1, 1927
Testate Estate of Joseph G. Brimo, JUAN MICIANO, administrator, petitioner-appellee,
vs.
ANDRE BRIMO, opponent-appellant.
ROMUALDEZ, J.:
The partition of the estate left by the deceased Joseph G. Brimo is in question in this case.
The judicial administrator of this estate filed a scheme of partition. Andre Brimo, one of the brothers of
the deceased, opposed it. The court, however, approved it.
The errors which the oppositor-appellant assigns are:
(1) The approval of said scheme of partition; (2) denial of his participation in the inheritance; (3) the
denial of the motion for reconsideration of the order approving the partition; (4) the approval of the
purchase made by the Pietro Lana of the deceased's business and the deed of transfer of said
business; and (5) the declaration that the Turkish laws are impertinent to this cause, and the failure not
to postpone the approval of the scheme of partition and the delivery of the deceased's business to
Pietro Lanza until the receipt of the depositions requested in reference to the Turkish laws.
The appellant's opposition is based on the fact that the partition in question puts into effect the
provisions of Joseph G. Brimo's will which are not in accordance with the laws of his Turkish nationality,
for which reason they are void as being in violation or article 10 of the Civil Code which, among other
things, provides the following:
Nevertheless, legal and testamentary successions, in respect to the order of succession as
well as to the amount of the successional rights and the intrinsic validity of their provisions,
shall be regulated by the national law of the person whose succession is in question, whatever
may be the nature of the property or the country in which it may be situated.
But the fact is that the oppositor did not prove that said testimentary dispositions are not in accordance
with the Turkish laws, inasmuch as he did not present any evidence showing what the Turkish laws are
on the matter, and in the absence of evidence on such laws, they are presumed to be the same as
those of the Philippines. (Lim and Lim vs. Collector of Customs, 36 Phil., 472.)
It has not been proved in these proceedings what the Turkish laws are. He, himself, acknowledges it
when he desires to be given an opportunity to present evidence on this point; so much so that he
assigns as an error of the court in not having deferred the approval of the scheme of partition until the
receipt of certain testimony requested regarding the Turkish laws on the matter.
The refusal to give the oppositor another opportunity to prove such laws does not constitute an error. It
is discretionary with the trial court, and, taking into consideration that the oppositor was granted ample
opportunity to introduce competent evidence, we find no abuse of discretion on the part of the court in
this particular. There is, therefore, no evidence in the record that the national law of the testator Joseph
G. Brimo was violated in the testamentary dispositions in question which, not being contrary to our laws
in force, must be complied with and executed.
Therefore, the approval of the scheme of partition in this respect was not erroneous.
In regard to the first assignment of error which deals with the exclusion of the herein appellant as a
legatee, inasmuch as he is one of the persons designated as such in will, it must be taken into
consideration that such exclusion is based on the last part of the second clause of the will, which says:
Second. I like desire to state that although by law, I am a Turkish citizen, this citizenship having
been conferred upon me by conquest and not by free choice, nor by nationality and, on the
other hand, having resided for a considerable length of time in the Philippine Islands where I
succeeded in acquiring all of the property that I now possess, it is my wish that the distribution
of my property and everything in connection with this, my will, be made and disposed of in
accordance with the laws in force in the Philippine islands, requesting all of my relatives to
respect this wish, otherwise, I annul and cancel beforehand whatever disposition found in this
will favorable to the person or persons who fail to comply with this request.
The institution of legatees in this will is conditional, and the condition is that the instituted legatees must
respect the testator's will to distribute his property, not in accordance with the laws of his nationality, but
in accordance with the laws of the Philippines.
If this condition as it is expressed were legal and valid, any legatee who fails to comply with it, as the
herein oppositor who, by his attitude in these proceedings has not respected the will of the testator, as
expressed, is prevented from receiving his legacy.
The fact is, however, that the said condition is void, being contrary to law, for article 792 of the civil
Code provides the following:
Impossible conditions and those contrary to law or good morals shall be considered as not
imposed and shall not prejudice the heir or legatee in any manner whatsoever, even should the
testator otherwise provide.
And said condition is contrary to law because it expressly ignores the testator's national law when,
according to article 10 of the civil Code above quoted, such national law of the testator is the one to
govern his testamentary dispositions.
Said condition then, in the light of the legal provisions above cited, is considered unwritten, and the
institution of legatees in said will is unconditional and consequently valid and effective even as to the
herein oppositor.
It results from all this that the second clause of the will regarding the law which shall govern it, and to
the condition imposed upon the legatees, is null and void, being contrary to law.
All of the remaining clauses of said will with all their dispositions and requests are perfectly valid and
effective it not appearing that said clauses are contrary to the testator's national law.
Therefore, the orders appealed from are modified and it is directed that the distribution of this estate be
made in such a manner as to include the herein appellant Andre Brimo as one of the legatees, and the
scheme of partition submitted by the judicial administrator is approved in all other respects, without any
pronouncement as to costs.
So ordered.
 FIRST DIVISION
G.R. No. 124371 November 23, 2000
PAULA T. LLORENTE, petitioner,
vs.
COURT OF APPEALS and ALICIA F. LLORENTE, respondents.
DECISION
PARDO, J.:
The Case
The case raises a conflict of laws issue.
What is before us is an appeal from the decision of the Court of Appeals 1 modifying that of the Regional
Trial Court, Camarines Sur, Branch 35, Iriga City2 declaring respondent Alicia F. Llorente (herinafter
referred to as "Alicia"), as co-owners of whatever property she and the deceased Lorenzo N. Llorente
(hereinafter referred to as "Lorenzo") may have acquired during the twenty-five (25) years that they lived
together as husband and wife.
The Facts
The deceased Lorenzo N. Llorente was an enlisted serviceman of the United States Navy from March
10, 1927 to September 30, 1957.3
On February 22, 1937, Lorenzo and petitioner Paula Llorente (hereinafter referred to as "Paula") were
married before a parish priest, Roman Catholic Church, in Nabua, Camarines Sur. 4
Before the outbreak of the Pacific War, Lorenzo departed for the United States and Paula stayed in the
conjugal home in barrio Antipolo, Nabua, Camarines Sur.5
On November 30, 1943, Lorenzo was admitted to United States citizenship and Certificate of
Naturalization No. 5579816 was issued in his favor by the United States District Court, Southern District
of New York.6
Upon the liberation of the Philippines by the American Forces in 1945, Lorenzo was granted an accrued
leave by the U. S. Navy, to visit his wife and he visited the Philippines.7 He discovered that his wife
Paula was pregnant and was "living in" and having an adulterous relationship with his brother, Ceferino
Llorente.8
On December 4, 1945, Paula gave birth to a boy registered in the Office of the Registrar of Nabua as
"Crisologo Llorente," with the certificate stating that the child was not legitimate and the line for the
fathers name was left blank.9
Lorenzo refused to forgive Paula and live with her. In fact, on February 2, 1946, the couple drew a
written agreement to the effect that (1) all the family allowances allotted by the United States Navy as
part of Lorenzos salary and all other obligations for Paulas daily maintenance and support would be
suspended; (2) they would dissolve their marital union in accordance with judicial proceedings; (3) they
would make a separate agreement regarding their conjugal property acquired during their marital life;
and (4) Lorenzo would not prosecute Paula for her adulterous act since she voluntarily admitted her
fault and agreed to separate from Lorenzo peacefully. The agreement was signed by both Lorenzo and
Paula and was witnessed by Paulas father and stepmother. The agreement was notarized by Notary
Public Pedro Osabel.10
Lorenzo returned to the United States and on November 16, 1951 filed for divorce with the Superior
Court of the State of California in and for the County of San Diego. Paula was represented by counsel,
John Riley, and actively participated in the proceedings. On November 27, 1951, the Superior Court of
the State of California, for the County of San Diego found all factual allegations to be true and issued an
interlocutory judgment of divorce.11
On December 4, 1952, the divorce decree became final. 12
In the meantime, Lorenzo returned to the Philippines.
On January 16, 1958, Lorenzo married Alicia F. Llorente in Manila.13 Apparently, Alicia had no
knowledge of the first marriage even if they resided in the same town as Paula, who did not oppose the
marriage or cohabitation.14
From 1958 to 1985, Lorenzo and Alicia lived together as husband and wife.15 Their twenty-five (25) year
union produced three children, Raul, Luz and Beverly, all surnamed Llorente.16
On March 13, 1981, Lorenzo executed a Last Will and Testament. The will was notarized by Notary
Public Salvador M. Occiano, duly signed by Lorenzo with attesting witnesses Francisco Hugo,
Francisco Neibres and Tito Trajano. In the will, Lorenzo bequeathed all his property to Alicia and their
three children, to wit:
"(1) I give and bequeath to my wife ALICIA R. FORTUNO exclusively my residential house and lot,
located at San Francisco, Nabua, Camarines Sur, Philippines, including ALL the personal properties
and other movables or belongings that may be found or existing therein;
"(2) I give and bequeath exclusively to my wife Alicia R. Fortuno and to my children, Raul F. Llorente,
Luz F. Llorente and Beverly F. Llorente, in equal shares, all my real properties whatsoever and
wheresoever located, specifically my real properties located at Barangay Aro-Aldao, Nabua, Camarines
Sur; Barangay Paloyon, Nabua, Camarines Sur; Barangay Baras, Sitio Puga, Nabua, Camarines Sur;
and Barangay Paloyon, Sitio Nalilidong, Nabua, Camarines Sur;
"(3) I likewise give and bequeath exclusively unto my wife Alicia R. Fortuno and unto my children, Raul
F. Llorente, Luz F. Llorente and Beverly F. Llorente, in equal shares, my real properties located in
Quezon City Philippines, and covered by Transfer Certificate of Title No. 188652; and my lands in
Antipolo, Rizal, Philippines, covered by Transfer Certificate of Title Nos. 124196 and 165188, both of
the Registry of Deeds of the province of Rizal, Philippines;
"(4) That their respective shares in the above-mentioned properties, whether real or personal properties,
shall not be disposed of, ceded, sold and conveyed to any other persons, but could only be sold, ceded,
conveyed and disposed of by and among themselves;
"(5) I designate my wife ALICIA R. FORTUNO to be the sole executor of this my Last Will and
Testament, and in her default or incapacity of the latter to act, any of my children in the order of age, if
of age;
"(6) I hereby direct that the executor named herein or her lawful substitute should served (sic) without
bond;
"(7) I hereby revoke any and all my other wills, codicils, or testamentary dispositions heretofore
executed, signed, or published, by me;
"(8) It is my final wish and desire that if I die, no relatives of mine in any degree in the Llorentes Side
should ever bother and disturb in any manner whatsoever my wife Alicia R. Fortunato and my children
with respect to any real or personal properties I gave and bequeathed respectively to each one of them
by virtue of this Last Will and Testament."17
On December 14, 1983, Lorenzo filed with the Regional Trial Court, Iriga, Camarines Sur, a petition for
the probate and allowance of his last will and testament wherein Lorenzo moved that Alicia be
appointed Special Administratrix of his estate.18
On January 18, 1984, the trial court denied the motion for the reason that the testator Lorenzo was still
alive.19
On January 24, 1984, finding that the will was duly executed, the trial court admitted the will to
probate.20
On June 11, 1985, before the proceedings could be terminated, Lorenzo died.21
On September 4, 1985, Paula filed with the same court a petition22 for letters of administration over
Lorenzos estate in her favor. Paula contended (1) that she was Lorenzos surviving spouse, (2) that the
various property were acquired during their marriage, (3) that Lorenzos will disposed of all his property
in favor of Alicia and her children, encroaching on her legitime and 1/2 share in the conjugal property. 23
On December 13, 1985, Alicia filed in the testate proceeding (Sp. Proc. No. IR-755), a petition for the
issuance of letters testamentary.24
On October 14, 1985, without terminating the testate proceedings, the trial court gave due course to
Paulas petition in Sp. Proc. No. IR-888.25
On November 6, 13 and 20, 1985, the order was published in the newspaper "Bicol Star".26
On May 18, 1987, the Regional Trial Court issued a joint decision, thus:
"Wherefore, considering that this court has so found that the divorce decree granted to the late Lorenzo
Llorente is void and inapplicable in the Philippines, therefore the marriage he contracted with Alicia
Fortunato on January 16, 1958 at Manila is likewise void. This being so the petition of Alicia F. Llorente
for the issuance of letters testamentary is denied. Likewise, she is not entitled to receive any share from
the estate even if the will especially said so her relationship with Lorenzo having gained the status of
paramour which is under Art. 739 (1).
"On the other hand, the court finds the petition of Paula Titular Llorente, meritorious, and so declares
the intrinsic disposition of the will of Lorenzo Llorente dated March 13, 1981 as void and declares her
entitled as conjugal partner and entitled to one-half of their conjugal properties, and as primary
compulsory heir, Paula T. Llorente is also entitled to one-third of the estate and then one-third should go
to the illegitimate children, Raul, Luz and Beverly, all surname (sic) Llorente, for them to partition in
equal shares and also entitled to the remaining free portion in equal shares.
"Petitioner, Paula Llorente is appointed legal administrator of the estate of the deceased, Lorenzo
Llorente. As such let the corresponding letters of administration issue in her favor upon her filing a bond
in the amount (sic) of P100,000.00 conditioned for her to make a return to the court within three (3)
months a true and complete inventory of all goods, chattels, rights, and credits, and estate which shall
at any time come to her possession or to the possession of any other person for her, and from the
proceeds to pay and discharge all debts, legacies and charges on the same, or such dividends thereon
as shall be decreed or required by this court; to render a true and just account of her administration to
the court within one (1) year, and at any other time when required by the court and to perform all orders
of this court by her to be performed.
"On the other matters prayed for in respective petitions for want of evidence could not be granted.
"SO ORDERED."27
In time, Alicia filed with the trial court a motion for reconsideration of the aforequoted decision. 28
On September 14, 1987, the trial court denied Alicias motion for reconsideration but modified its earlier
decision, stating that Raul and Luz Llorente are not children "legitimate or otherwise" of Lorenzo since
they were not legally adopted by him.29 Amending its decision of May 18, 1987, the trial court declared
Beverly Llorente as the only illegitimate child of Lorenzo, entitling her to one-third (1/3) of the estate and
one-third (1/3) of the free portion of the estate.30
On September 28, 1987, respondent appealed to the Court of Appeals. 31
On July 31, 1995, the Court of Appeals promulgated its decision, affirming with modification the decision
of the trial court in this wise:
"WHEREFORE, the decision appealed from is hereby AFFIRMED with the MODIFICATION that Alicia is
declared as co-owner of whatever properties she and the deceased may have acquired during the
twenty-five (25) years of cohabitation.
"SO ORDERED."32
On August 25, 1995, petitioner filed with the Court of Appeals a motion for reconsideration of the
decision.33
On March 21, 1996, the Court of Appeals,34 denied the motion for lack of merit.
Hence, this petition.35
The Issue
Stripping the petition of its legalese and sorting through the various arguments raised, 36 the issue is
simple. Who are entitled to inherit from the late Lorenzo N. Llorente?
We do not agree with the decision of the Court of Appeals. We remand the case to the trial court for
ruling on the intrinsic validity of the will of the deceased.
The Applicable Law
The fact that the late Lorenzo N. Llorente became an American citizen long before and at the time of:
(1) his divorce from Paula; (2) marriage to Alicia; (3) execution of his will; and (4) death, is duly
established, admitted and undisputed.
Thus, as a rule, issues arising from these incidents are necessarily governed by foreign law.
The Civil Code clearly provides:
"Art. 15. Laws relating to family rights and duties, or to the status, condition and legal capacity of
persons are binding upon citizens of the Philippines, even though living abroad.
"Art. 16. Real property as well as personal property is subject to the law of the country where it is
situated.
"However, intestate and testamentary succession, both with respect to the order of succession and to
the amount of successional rights and to the intrinsic validity of testamentary provisions, shall be
regulated by the national law of the person whose succession is under consideration, whatever
may be the nature of the property and regardless of the country wherein said property may be found."
(emphasis ours)
True, foreign laws do not prove themselves in our jurisdiction and our courts are not authorized to take
judicial notice of them. Like any other fact, they must be alleged and proved. 37
While the substance of the foreign law was pleaded, the Court of Appeals did not admit the foreign law.
The Court of Appeals and the trial court called to the fore the renvoi doctrine, where the case was
"referred back" to the law of the decedents domicile, in this case, Philippine law.
We note that while the trial court stated that the law of New York was not sufficiently proven, in the
same breath it made the categorical, albeit equally unproven statement that "American law follows the
domiciliary theory hence, Philippine law applies when determining the validity of Lorenzos will.38
First, there is no such thing as one American law.1wph!1 The "national law" indicated in Article 16 of
the Civil Code cannot possibly apply to general American law. There is no such law governing the
validity of testamentary provisions in the United States. Each State of the union has its own law
applicable to its citizens and in force only within the State. It can therefore refer to no other than the law
of the State of which the decedent was a resident.39 Second, there is no showing that the application of
the renvoi doctrine is called for or required by New York State law.
The trial court held that the will was intrinsically invalid since it contained dispositions in favor of Alice,
who in the trial courts opinion was a mere paramour. The trial court threw the will out, leaving Alice, and
her two children, Raul and Luz, with nothing.
The Court of Appeals also disregarded the will. It declared Alice entitled to one half (1/2) of whatever
property she and Lorenzo acquired during their cohabitation, applying Article 144 of the Civil Code of
the Philippines.
The hasty application of Philippine law and the complete disregard of the will, already probated as duly
executed in accordance with the formalities of Philippine law, is fatal, especially in light of the factual
and legal circumstances here obtaining.
Validity of the Foreign Divorce
In Van Dorn v. Romillo, Jr.40 we held that owing to the nationality principle embodied in Article 15 of the
Civil Code, only Philippine nationals are covered by the policy against absolute divorces, the same
being considered contrary to our concept of public policy and morality. In the same case, the Court ruled
that aliens may obtain divorces abroad, provided they are valid according to their national law.
Citing this landmark case, the Court held in Quita v. Court of Appeals,41 that once proven that
respondent was no longer a Filipino citizen when he obtained the divorce from petitioner, the ruling
in Van Dorn would become applicable and petitioner could "very well lose her right to inherit" from him.
In Pilapil v. Ibay-Somera,42 we recognized the divorce obtained by the respondent in his country, the
Federal Republic of Germany. There, we stated that divorce and its legal effects may be recognized in
the Philippines insofar as respondent is concerned in view of the nationality principle in our civil law on
the status of persons.
For failing to apply these doctrines, the decision of the Court of Appeals must be reversed.43 We hold
that the divorce obtained by Lorenzo H. Llorente from his first wife Paula was valid and recognized in
this jurisdiction as a matter of comity. Now, the effects of this divorce (as to the succession to the estate
of the decedent) are matters best left to the determination of the trial court.
Validity of the Will
The Civil Code provides:
"Art. 17. The forms and solemnities of contracts, wills, and other public instruments shall be governed
by the laws of the country in which they are executed.

"When the acts referred to are executed before the diplomatic or consular officials of the Republic of the
Philippines in a foreign country, the solemnities established by Philippine laws shall be observed in their
execution." (underscoring ours)

The clear intent of Lorenzo to bequeath his property to his second wife and children by her is glaringly
shown in the will he executed. We do not wish to frustrate his wishes, since he was a foreigner, not
covered by our laws on "family rights and duties, status, condition and legal capacity." 44

Whether the will is intrinsically valid and who shall inherit from Lorenzo are issues best proved by
foreign law which must be pleaded and proved. Whether the will was executed in accordance with the
formalities required is answered by referring to Philippine law. In fact, the will was duly probated.

As a guide however, the trial court should note that whatever public policy or good customs may be
involved in our system of legitimes, Congress did not intend to extend the same to the succession of
foreign nationals. Congress specifically left the amount of successional rights to the decedent's national
law.45

Having thus ruled, we find it unnecessary to pass upon the other issues raised.

The Fallo

WHEREFORE, the petition is GRANTED. The decision of the Court of Appeals in CA-G. R. SP No.
17446 promulgated on July 31, 1995 is SET ASIDE.

In lieu thereof, the Court REVERSES the decision of the Regional Trial Court and RECOGNIZES as
VALID the decree of divorce granted in favor of the deceased Lorenzo N. Llorente by the Superior Court
of the State of California in and for the County of San Diego, made final on December 4, 1952.

Further, the Court REMANDS the cases to the court of origin for determination of the intrinsic validity of
Lorenzo N. Llorentes will and determination of the parties successional rights allowing proof of foreign
law with instructions that the trial court shall proceed with all deliberate dispatch to settle the estate of
the deceased within the framework of the Rules of Court.

No costs.

SO ORDERED.
 FIRST DIVISION
G.R. No. 108581 December 8, 1999
LOURDES L. DOROTHEO, petitioner,
vs.
COURT OF APPEALS, NILDA D. QUINTANA, for Herself and as Attorney-in-Fact of VICENTE
DOROTHEO and JOSE DOROTHEO, respondents.
YNARES-SANTIAGO, J.:
May a last will and testament admitted to probate but declared intrinsically void in an order that has
become final and executory still be given effect? This is the issue that arose from the following
antecedents:
Private respondents were the legitimate children of Alejandro Dorotheo and Aniceta Reyes. The latter
died in 1969 without her estate being settled. Alejandro died thereafter. Sometime in 1977, after
Alejandro's death, petitioner, who claims to have taken care of Alejandro before he died, filed a special
proceeding for the probate of the latter's last will and testament. In 1981, the court issued an order
admitting Alejandro's will to probate. Private respondents did not appeal from said order. In 1983, they
filed a "Motion To Declare The Will Intrinsically Void." The trial court granted the motion and issued an
order, the dispositive portion of which reads:
WHEREFORE, in view of the foregoing, Order is hereby issued declaring Lourdes
Legaspi not the wife of the late Alejandro Dorotheo, the provisions of the last will and
testament of Alejandro Dorotheo as intrinsically void, and declaring the oppositors
Vicente Dorotheo, Jose Dorotheo and Nilda Dorotheo Quintana as the only heirs of
the late spouses Alejandro Dorotheo and Aniceta Reyes, whose respective estates
shall be liquidated and distributed according to the laws on intestacy upon payment of
estate and other taxes due to the government. 1
Petitioner moved for reconsideration arguing that she is entitled to some compensation since she took
care of Alejandro prior to his death although she admitted that they were not married to each other.
Upon denial of her motion for reconsideration, petitioner appealed to the Court of Appeals, but the same
was dismissed for failure to file appellant's brief within the extended period
granted. 2 This dismissal became final and executory on February 3, 1989 and a corresponding entry of
judgment was forthwith issued by the Court of Appeals on May 16, 1989. A writ of execution was issued
by the lower court to implement the final and executory Order. Consequently, private respondents filed
several motions including a motion to compel petitioner to surrender to them the Transfer Certificates of
Titles (TCT) covering the properties of the late Alejandro. When petitioner refused to surrender the
TCT's, private respondents filed a motion for cancellation of said titles and for issuance of new titles in
their names. Petitioner opposed the motion.
An Order was issued on November 29, 1990 by Judge Zain B. Angas setting aside the final and
executory Order dated January 30, 1986, as well as the Order directing the issuance of the writ of
execution, on the ground that the order was merely "interlocutory", hence not final in character. The
court added that the dispositive portion of the said Order even directs the distribution of the estate of the
deceased spouses. Private respondents filed a motion for reconsideration which was denied in an Order
dated February 1, 1991. Thus, private respondents filed a petition before the Court of Appeals, which
nullified the two assailed Orders dated November 29, 1990 and February 1, 1991.
Aggrieved, petitioner instituted a petition for review arguing that the case filed by private respondents
before the Court of Appeals was a petition under Rule 65 on the ground of grave abuse of discretion or
lack of jurisdiction. Petitioner contends that in issuing the two assailed orders, Judge Angas cannot be
said to have no jurisdiction because he was particularly designated to hear the case. Petitioner likewise
assails the Order of the Court of Appeals upholding the validity of the January 30, 1986 Order which
declared the intrinsic invalidity of Alejandro's will that was earlier admitted to probate.
Petitioner also filed a motion to reinstate her as executrix of the estate of the late Alejandro and to
maintain the status quo or lease of the premises thereon to third parties. 3 Private respondents opposed
the motion on the ground that petitioner has no interest in the estate since she is not the lawful wife of
the late Alejandro.
The petition is without merit. A final and executory decision or order can no longer be disturbed or
reopened no matter how erroneous it may be. In setting aside the January 30, 1986 Order that has
attained finality, the trial court in effect nullified the entry of judgment made by the Court of Appeals. It is
well settled that a lower court cannot reverse or set aside decisions or orders of a superior court, for to
do so would be to negate the hierarchy of courts and nullify the essence of review. It has been ruled that
a final judgment on probated will, albeit erroneous, is binding on the whole world. 4
It has been consistently held that if no appeal is taken in due time from a judgment or order of the trial
court, the same attains finality by mere lapse of time. Thus, the order allowing the will became final and
the question determined by the court in such order can no longer be raised anew, either in the same
proceedings or in a different motion. The matters of due execution of the will and the capacity of the
testator acquired the character of res judicata and cannot again be brought into question, all juridical
questions in connection therewith being for once and forever closed. 5 Such final order makes the will
conclusive against the whole world as to its extrinsic validity and due execution. 6
It should be noted that probate proceedings deals generally with the extrinsic validity of the will sought
to be probated, 7 particularly on three aspects:
n whether the will submitted is indeed, the
decedent's last will and testament;
n compliance with the prescribed formalities for
the execution of wills;
8
n the testamentary capacity of the testator;
n and the due execution of the last will and
testament. 9
Under the Civil Code, due execution includes a determination of whether the testator was of sound and
disposing mind at the time of its execution, that he had freely executed the will and was not acting under
duress, fraud, menace or undue influence and that the will is genuine and not a forgery, 10 that he was
of the proper testamentary age and that he is a person not expressly prohibited by law from making a
will. 11
The intrinsic validity is another matter and questions regarding the same may still be raised even after
the will has been authenticated. 12 Thus, it does not necessarily follow that an extrinsically valid last will
and testament is always intrinsically valid. Even if the will was validly executed, if the testator provides
for dispositions that deprives or impairs the lawful heirs of their legitime or rightful inheritance according
to the laws on succession, 13 the unlawful provisions/dispositions thereof cannot be given effect. This is
specially so when the courts had already determined in a final and executory decision that the will is
intrinsically void. Such determination having attained that character of finality is binding on this Court
which will no longer be disturbed. Not that this Court finds the will to be intrinsically valid, but that a final
and executory decision of which the party had the opportunity to challenge before the higher tribunals
must stand and should no longer be reevaluated. Failure to avail of the remedies provided by law
constitutes waiver. And if the party does not avail of other remedies despite its belief that it was
aggrieved by a decision or court action, then it is deemed to have fully agreed and is satisfied with the
decision or order. As early as 1918, it has been declared that public policy and sound practice demand
that, at the risk of occasional errors, judgments of courts must at some point of time fixed by
law 14 become final otherwise there will be no end to litigation. Interes rei publicae ut finis sit litium
the very object of which the courts were constituted was to put an end to controversies. 15 To fulfill this
purpose and to do so speedily, certain time limits, more or less arbitrary, have to be set up to spur on
the slothful. 16 The only instance where a party interested in a probate proceeding may have a final
liquidation set aside is when he is left out by reason of circumstances beyond his control or through
mistake or inadvertence not imputable to negligence, 17 which circumstances do not concur herein.
available to prove the voluntariness of his actions, aside from the fact that the transfer of the estate is
usually onerous in nature and that no one is presumed to give Nemo praesumitur donare. 21 No
intestate distribution of the estate can be done until and unless the will had failed to pass both its
extrinsic and intrinsic validity. If the will is extrinsically void, the rules of intestacy apply regardless of the
intrinsic validity thereof. If it is extrinsically valid, the next test is to determine its intrinsic validity that
is whether the provisions of the will are valid according to the laws of succession. In this case, the court
had ruled that the will of Alejandro was extrinsically valid but the intrinsic provisions thereof were void.
Thus, the rules of intestacy apply as correctly held by the trial court.
Furthermore, Alejandro's disposition in his will of the alleged share in the conjugal properties of his late
spouse, whom he described as his "only beloved wife", is not a valid reason to reverse a final and
executory order. Testamentary dispositions of properties not belonging exclusively to the testator or
properties which are part of the conjugal regime cannot be given effect. Matters with respect to who
owns the properties that were disposed of by Alejandro in the void will may still be properly ventilated
and determined in the intestate proceedings for the settlement of his and that of his late spouse's
estate.
Petitioner's motion for appointment as administratrix is rendered moot considering that she was not
married to the late Alejandro and, therefore, is not an heir.
WHEREFORE, the petition is DENIED and the decision appealed from is AFFIRMED.
SO ORDERED.

Petitioner was privy to the suit calling for the declaration of the intrinsic invalidity of the will, as she
precisely appealed from an unfavorable order therefrom. Although the final and executory Order of
January 30, 1986 wherein private respondents were declared as the only heirs do not bind those who
are not parties thereto such as the alleged illegitimate son of the testator, the same constitutes res
judicata with respect to those who were parties to the probate proceedings. Petitioner cannot again
raise those matters anew for relitigation otherwise that would amount to forum-shopping. It should be
remembered that forum shopping also occurs when the same issue had already been resolved
adversely by some other court. 18 It is clear from the executory order that the estates of Alejandro and
his spouse should be distributed according to the laws of intestate succession.

Petitioner posits that the January 30, 1986 Order is merely interlocutory, hence it can still be set aside
by the trial court. In support thereof, petitioner argues that "an order merely declaring who are heirs and
the shares to which set of heirs is entitled cannot be the basis of execution to require delivery of shares
from one person to another particularly when no project of partition has been filed." 19 The trial court
declared in the January 30, 1986 Order that petitioner is not the legal wife of Alejandro, whose only
heirs are his three legitimate children (petitioners herein), and at the same time it nullified the will. But it
should be noted that in the same Order, the trial court also said that the estate of the late spouses be
distributed according to the laws of intestacy. Accordingly, it has no option but to implement that order of
intestate distribution and not to reopen and again re-examine the intrinsic provisions of the same will.

It can be clearly inferred from Article 960 of the Civil Code, on the law of successional rights that testacy
is preferred to intestacy. 20 But before there could be testate distribution, the will must pass the
scrutinizing test and safeguards provided by law considering that the deceased testator is no longer
 EN BANC
G.R. No. L-6801 March 14, 1912
JULIANA BAGTAS, plaintiffs-appellee,
vs.
ISIDRO PAGUIO, ET AL., defendants-appellants.
Salas and Kalaw for appellants.
Jose Santiago for appellee.
TRENT, J.:
This is an appeal from an order of the Court of First Instance of the Province of Bataan, admitting to
probate a document which was offered as the last will and testament of Pioquinto Paguio y Pizarro. The
will purports to have been executed in the pueblo of Pilar, Province of Bataan, on the 19th day of April,
1908. The testator died on the 28th of September, 1909, a year and five months following the date of
the execution of the will. The will was propounded by the executrix, Juliana Bagtas, widow of the
decedent, and the opponents are a son and several grandchildren by a former marriage, the latter being
the children of a deceased daughter.
The basis of the opposition to the probation of the will is that the same was not executed according to
the formalities and requirements of the law touching wills, and further that the testator was not in the full
of enjoyment and use of his mental faculties and was without the mental capacity necessary to execute
a valid will.
The record shows that the testator, Pioquinto Paguio, for some fourteen of fifteen years prior to the time
of his death suffered from a paralysis of the left side of his body; that a few years prior to his death his
hearing became impaired and that he lost the power of speech. Owing to the paralysis of certain
muscles his head fell to one side, and saliva ran from his mouth. He retained the use of his right hand,
however, and was able to write fairly well. Through the medium of signs he was able to indicate his
wishes to his wife and to other members of his family.
At the time of the execution of the will there were present the four testamentary witnesses, Agustin
Paguio, Anacleto Paguio, and Pedro Paguio, and attorney, Seor Marco, and one Florentino Ramos.
Anacleto Paguio and the attorney have since died, and consequently their testimony was not available
upon the trial of the case in the lower court. The other three testamentary witnesses and the witness
Florentino Ramos testified as to the manner in which the will was executed. According to the
uncontroverted testimony of these witnesses the will was executed in the following manner:
Pioquinto Paguio, the testator, wrote out on pieces of paper notes and items relating to the disposition
of his property, and these notes were in turn delivered to Seor Marco, who transcribed them and put
them in form. The witnesses testify that the pieces of paper upon which the notes were written are
delivered to attorney by the testator; that the attorney read them to the testator asking if they were his
testamentary dispositions; that the testator assented each time with an affirmative movement of his
head; that after the will as a whole had been thus written by the attorney, it was read in a loud voice in
the presence of the testator and the witnesses; that Seor Marco gave the document to the testator;
that the latter, after looking over it, signed it in the presence of the four subscribing witnesses; and that
they in turn signed it in the presence of the testator and each other.
These are the facts of record with reference to the execution of the will and we are in perfect accord
with the judgment of the lower court that the formalities of the Code of Civil Procedure have been fully
complied with.
This brings us now to a consideration of appellants' second assignment of error, viz, the testator's
alleged mental incapacity at the time of the execution of the will. Upon this point considerable evidence
was adduced at the trial. One of the attesting witnesses testified that at the time of the execution of the
will the testator was in his right mind, and that although he was seriously ill, he indicated by movements
of his head what his wishes were. Another of the attesting witnesses stated that he was not able to say
whether decedent had the full use of his mental faculties or not, because he had been ill for some years,
and that he (the witnesses) was not a physician. The other subscribing witness, Pedro Paguio, testified
in the lower court as a witness for the opponents. He was unable to state whether or not the will was the
wish of the testator. The only reasons he gave for his statement were the infirmity and advanced age of
the testator and the fact that he was unable to speak. The witness stated that the testator signed the
will, and he verified his own signature as a subscribing witness.
Florentino Ramos, although not an attesting witness, stated that he was present when the will was
executed and his testimony was cumulative in corroboration of the manner in which the will was
executed and as to the fact that the testator signed the will. This witness also stated that he had
frequently transacted matters of business for the decedent and had written letters and made inventories
of his property at his request, and that immediately before and after the execution of the will he had
performed offices of his character. He stated that the decedent was able to communicate his thoughts
by writing. The testimony of this witness clearly indicates the presence of mental capacity on the part of
the testator. Among other witnesses for the opponents were two physician, Doctor Basa and Doctor
Viado. Doctor Basa testified that he had attended the testator some four or five years prior to his death
and that the latter had suffered from a cerebral congestion from which the paralysis resulted. The
following question was propounded to Doctor Basa:
Q. Referring to mental condition in which you found him the last time you attended him, do
you think he was in his right mind?
A. I can not say exactly whether he was in his right mind, but I noted some mental disorder,
because when I spoke to him he did not answer me.
Doctor Basa testified at more length, but the substance of his testimony is that the testator had suffered
a paralysis and that he had noticed some mental disorder. He does not say that the testator was not in
his right mind at the time of the execution of the will, nor does he give it at his opinion that he was
without the necessary mental capacity to make a valid will. He did not state in what way this mental
disorder had manifested itself other than that he had noticed that the testator did not reply to him on one
occasion when he visited him.
Doctor Viado, the other physician, have never seen the testator, but his answer was in reply to a
hypothetical question as to what be the mental condition of a person who was 79 years old and who had
suffered from a malady such as the testator was supposed to have had according to the testimony of
Doctor Basa, whose testimony Doctor Viado had heard. He replied and discussed at some length the
symptoms and consequences of the decease from which the testator had suffered; he read in support of
his statements from a work by a German Physician, Dr. Herman Eichost. In answer, however, to a direct
question, he stated that he would be unable to certify to the mental condition of a person who was
suffering from such a disease.
We do not think that the testimony of these two physicians in any way strengthens the contention of the
appellants. Their testimony only confirms the fact that the testator had been for a number of years prior
to his death afflicted with paralysis, in consequence of which his physician and mental strength was
greatly impaired. Neither of them attempted to state what was the mental condition of the testator at the
time he executed the will in question. There can be no doubt that the testator's infirmities were of a very
serious character, and it is quite evident that his mind was not as active as it had been in the earlier
years of his life. However, we can not include from this that he wanting in the necessary mental capacity
to dispose of his property by will.
The courts have been called upon frequently to nullify wills executed under such circumstances, but the
weight of the authority is in support if the principle that it is only when those seeking to overthrow the will
have clearly established the charge of mental incapacity that the courts will intervene to set aside a
testamentary document of this character. In the case of Bugnao vs. Ubag (14 Phil. Rep., 163), the
question of testamentary capacity was discussed by this court. The numerous citations there given from
the decisions of the United States courts are especially applicable to the case at bar and have our
approval. In this jurisdiction the presumption of law is in favor of the mental capacity of the testator and
the burden is upon the contestants of the will to prove the lack of testamentary capacity. (In the matter
of the will of Cabigting, 14 Phil. Rep., 463; in the matter of the will of Butalid, 10 Phil. Rep., 27;
Hernaez vs. Hernaez, 1 Phil. Rep., 689.)
The rule of law relating to the presumption of mental soundness is well established, and the testator in
the case at bar never having been adjudged insane by a court of competent jurisdiction, this
presumption continues, and it is therefore incumbent upon the opponents to overcome this legal
presumption by proper evidence. This we think they have failed to do. There are many cases and
authorities which we might cite to show that the courts have repeatedly held that mere weakness of
mind and body, induced by age and disease do not render a person incapable of making a will. The law
does not require that a person shall continue in the full enjoyment and use of his pristine physical and
mental powers in order to execute a valid will. If such were the legal standard, few indeed would be the
number of wills that could meet such exacting requirements. The authorities, both medical and legal, are
universal in statement that the question of mental capacity is one of degree, and that there are many
gradations from the highest degree of mental soundness to the lowest conditions of diseased mentality
which are denominated as insanity and idiocy.
The right to dispose of property by testamentary disposition is as sacred as any other right which a
person may exercise and this right should not be nullified unless mental incapacity is established in a
positive and conclusive manner. In discussing the question of testamentary capacity, it is stated in
volume 28, 70, of the American and English Encyclopedia of Law, that
Contrary to the very prevalent lay impression, perfect soundness of mind is not essential to
testamentary capacity. A testator may be afflicted with a variety of mental weaknesses,
disorders, or peculiarities and still be capable in law of executing a valid will. (See the
numerous cases there cited in support of this statement.)
The rule relating to testamentary capacity is stated in Buswell on Insanity, section 365, and quoted with
approval in Campbell vs. Campbell (130 Ill., 466), as follows:
To constitute a sound and disposing mind, it is not necessary that the mind shall be wholly
unbroken, unimpaired, or unshattered by disease or otherwise, or that the testator should be in
the full possession of his reasoning faculties.
In note, 1 Jarman on Wills, 38, the rule is thus stated:
The question is not so much, that was the degree of memory possessed by the testator, as,
had he a disposing memory? Was he able to remember the property he was about to
bequeath, the manner of disturbing it, and the objects of his bounty? In a word, were his mind
and memory sufficiently sound to enable him to know and understand the business in which he
was engaged at the time when he executed his will. (See authorities there cited.)
In Wilson vs. Mitchell (101 Penn., 495), the following facts appeared upon the trial of the case: The
testator died at the age of nearly 102 years. In his early years he was an intelligent and well informed
man. About seven years prior to his death he suffered a paralytic stroke and from that time his mind and
memory were mush enfeebled. He became very dull of hearing and in consequence of the shrinking of
his brain he was affected with senile cataract causing total blindness. He became filthy and obscene in
his habits, although formerly he was observant of the properties of life. The court, in commenting upon
the case, said:
Neither age, nor sickness, nor extreme distress, nor debility of body will affect the capacity to
make a will, if sufficient intelligence remains. The failure of memory is not sufficient to create
the incapacity, unless it be total, or extend to his immediate family or property. . . .
xxx xxx xxx
Dougal (the testator) had lived over one hundred years before he made the will, and his
physical and mental weakness and defective memory were in striking contrast with their
strength in the meridian of his life. He was blind; not deaf, but hearing impaired; his mind acted
slowly, he was forgetful or recent events, especially of names, and repeated questions in
conversation; and sometimes, when aroused for sleep or slumber, would seem bewildered. It
is not singular that some of those who had known him when he was remarkable for vigor and
intelligence, are of the opinion that his reason was so far gone that he was incapable of making
a will, although they never heard him utter an irrational expression.
In the above case the will was sustained. In the case at bar we might draw the same contrast as was
pictured by the court in the case just quoted. The striking change in the physical and mental vigor of the
testator during the last years of his life may have led some of those who knew him in his earlier days to
entertain doubts as to his mental capacity to make a will, yet we think that the statements of the
witnesses to the execution of the will and statements of the conduct of the testator at that time all
indicate that he unquestionably had mental capacity and that he exercised it on this occasion. At the
time of the execution of the will it does not appear that his conduct was irrational in any particular. He
seems to have comprehended clearly what the nature of the business was in which he was engaged.
The evidence show that the writing and execution of the will occupied a period several hours and that
the testator was present during all this time, taking an active part in all the proceedings. Again, the will in
the case at bar is perfectly reasonable and its dispositions are those of a rational person.
For the reasons above stated, the order probating the will should be and the same is hereby affirmed,
with costs of this instance against the appellants.
Arellano, C.J., Torres, Mapa, Johnson, Carson and Moreland, JJ., concur.
 FIRST DIVISION
G.R. No. 174489 April 11, 2012
ANTONIO B. BALTAZAR, SEBASTIAN M. BALTAZAR, ANTONIO L. MANGALINDAN, ROSIE M.
MATEO, NENITA A. PACHECO, VIRGILIO REGALA, JR., and RAFAEL TITCO, Petitioners,
vs.
LORENZO LAXA, Respondent.
DECISION
DEL CASTILLO, J.:
It is incumbent upon those who oppose the probate of a will to clearly establish that the decedent was
not of sound and disposing mind at the time of the execution of said will. Otherwise, the state is duty-
bound to give full effect to the wishes of the testator to distribute his estate in the manner provided in his
will so long as it is legally tenable.1
Before us is a Petition for Review on Certiorari2 of the June 15, 2006 Decision3 of the Court of Appeals
(CA) in CA-G.R. CV No. 80979 which reversed the September 30, 2003 Decision4 of the Regional Trial
Court (RTC), Branch 52, Guagua, Pampanga in Special Proceedings No. G-1186. The assailed CA
Decision granted the petition for probate of the notarial will of Paciencia Regala (Paciencia), to wit:
WHEREFORE, premises considered, finding the appeal to be impressed with merit, the decision in SP.
PROC. NO. G-1186 dated 30 September 2003, is hereby SET ASIDE and a new one entered
GRANTING the petition for the probate of the will of PACIENCIA REGALA.
SO ORDERED.5
Also assailed herein is the August 31, 2006 CA Resolution6 which denied the Motion for
Reconsideration thereto.
Petitioners call us to reverse the CAs assailed Decision and instead affirm the Decision of the RTC
which disallowed the notarial will of Paciencia.
Factual Antecedents
Paciencia was a 78 year old spinster when she made her last will and testament entitled "Tauli Nang
Bilin o Testamento Miss Paciencia Regala"7 (Will) in the Pampango dialect on September 13, 1981. The
Will, executed in the house of retired Judge Ernestino G. Limpin (Judge Limpin), was read to Paciencia
twice. After which, Paciencia expressed in the presence of the instrumental witnesses that the
document is her last will and testament. She thereafter affixed her signature at the end of the said
document on page 38 and then on the left margin of pages 1, 2 and 4 thereof. 9
The witnesses to the Will were Dra. Maria Lioba A. Limpin (Dra. Limpin), Francisco Garcia (Francisco)
and Faustino R. Mercado (Faustino). The three attested to the Wills due execution by affixing their
signatures below its attestation clause10 and on the left margin of pages 1, 2 and 4 thereof,11 in the
presence of Paciencia and of one another and of Judge Limpin who acted as notary public.
Childless and without any brothers or sisters, Paciencia bequeathed all her properties to respondent
Lorenzo R. Laxa (Lorenzo) and his wife Corazon F. Laxa and their children Luna Lorella Laxa and
Katherine Ross Laxa, thus:
xxxx
Fourth - In consideration of their valuable services to me since then up to the present by the spouses
LORENZO LAXA and CORAZON F. LAXA, I hereby BEQUEATH, CONVEY and GIVE all my properties
enumerated in parcels 1 to 5 unto the spouses LORENZO R. LAXA and CORAZON F. LAXA and their
children, LUNA LORELLA LAXA and KATHERINE LAXA, and the spouses Lorenzo R. Laxa and
Corazon F. Laxa both of legal age, Filipinos, presently residing at Barrio Sta. Monica, [Sasmuan],
Pampanga and their children, LUNA LORELLA and KATHERINE ROSS LAXA, who are still not of legal
age and living with their parents who would decide to bequeath since they are the children of the
spouses;
xxxx
[Sixth] - Should other properties of mine may be discovered aside from the properties mentioned in this
last will and testament, I am also bequeathing and giving the same to the spouses Lorenzo R. Laxa and
Corazon F. Laxa and their two children and I also command them to offer masses yearly for the repose
of my soul and that of D[]a Nicomeda Regala, Epifania Regala and their spouses and with respect to
the fishpond situated at San Antonio, I likewise command to fulfill the wishes of D[]a Nicomeda Regala
in accordance with her testament as stated in my testament. x x x12
The filial relationship of Lorenzo with Paciencia remains undisputed. Lorenzo is Paciencias nephew
whom she treated as her own son. Conversely, Lorenzo came to know and treated Paciencia as his
own mother.13 Paciencia lived with Lorenzos family in Sasmuan, Pampanga and it was she who raised
and cared for Lorenzo since his birth. Six days after the execution of the Will or on September 19, 1981,
Paciencia left for the United States of America (USA). There, she resided with Lorenzo and his family
until her death on January 4, 1996.
In the interim, the Will remained in the custody of Judge Limpin.
More than four years after the death of Paciencia or on April 27, 2000, Lorenzo filed a petition 14 with the
RTC of Guagua, Pampanga for the probate of the Will of Paciencia and for the issuance of Letters of
Administration in his favor, docketed as Special Proceedings No. G-1186.
There being no opposition to the petition after its due publication, the RTC issued an Order on June 13,
200015allowing Lorenzo to present evidence on June 22, 2000. On said date, Dra. Limpin testified that
she was one of the instrumental witnesses in the execution of the last will and testament of Paciencia
on September 13, 1981.16 The Will was executed in her fathers (Judge Limpin) home office, in her
presence and of two other witnesses, Francisco and Faustino.17 Dra. Limpin positively identified the Will
and her signatures on all its four pages.18 She likewise positively identified the signature of her father
appearing thereon.19 Questioned by the prosecutor regarding Judge Limpins present mental fitness,
Dra. Limpin testified that her father had a stroke in 1991 and had to undergo brain surgery. 20 The judge
can walk but can no longer talk and remember her name. Because of this, Dra. Limpin stated that her
father can no longer testify in court.21
The following day or on June 23, 2000, petitioner Antonio Baltazar (Antonio) filed an opposition22 to
Lorenzos petition. Antonio averred that the properties subject of Paciencias Will belong to Nicomeda
Regala Mangalindan, his predecessor-in-interest; hence, Paciencia had no right to bequeath them to
Lorenzo.23
Barely a month after or on July 20, 2000, Antonio, now joined by petitioners Sebastian M. Baltazar,
Virgilio Regala, Jr., Nenita A. Pacheco, Felix B. Flores, Rafael Titco, Rosie M. Mateo (Rosie) and
Antonio L. Mangalindan filed a Supplemental Opposition24 contending that Paciencias Will was null and
void because ownership of the properties had not been transferred and/or titled to Paciencia before her
death pursuant to Article 1049, paragraph 3 of the Civil Code.25 Petitioners also opposed the issuance
of Letters of Administration in Lorenzos favor arguing that Lorenzo was disqualified to be appointed as
such, he being a citizen and resident of the USA. 26 Petitioners prayed that Letters of Administration be
instead issued in favor of Antonio.27
Later still on September 26, 2000, petitioners filed an Amended Opposition28 asking the RTC to deny
the probate of Paciencias Will on the following grounds: the Will was not executed and attested to in
accordance with the requirements of the law; that Paciencia was mentally incapable to make a Will at
the time of its execution; that she was forced to execute the Will under duress or influence of fear or
threats; that the execution of the Will had been procured by undue and improper pressure and influence
by Lorenzo or by some other persons for his benefit; that the signature of Paciencia on the Will was
forged; that assuming the signature to be genuine, it was obtained through fraud or trickery; and, that
Paciencia did not intend the document to be her Will. Simultaneously, petitioners filed an Opposition
and Recommendation29 reiterating their opposition to the appointment of Lorenzo as administrator of
the properties and requesting for the appointment of Antonio in his stead.
On January 29, 2001, the RTC issued an Order30 denying the requests of both Lorenzo and Antonio to
be appointed administrator since the former is a citizen and resident of the USA while the latters claim
as a co-owner of the properties subject of the Will has not yet been established.
Meanwhile, proceedings on the petition for the probate of the Will continued. Dra. Limpin was recalled
for cross-examination by the petitioners. She testified as to the age of her father at the time the latter
notarized the Will of Paciencia; the living arrangements of Paciencia at the time of the execution of the
Will; and the lack of photographs when the event took place. 31
Aside from Dra. Limpin, Lorenzo and Monico Mercado (Monico) also took the witness stand. Monico,
son of Faustino, testified on his fathers condition. According to him his father can no longer talk and
express himself due to brain damage. A medical certificate was presented to the court to support this
allegation. 32
For his part, Lorenzo testified that: from 1944 until his departure for the USA in April 1980, he lived in
Sasmuan, Pampanga with his family and his aunt, Paciencia; in 1981 Paciencia went to the USA and
lived with him and his family until her death in January 1996; the relationship between him and
Paciencia was like that of a mother and child since Paciencia took care of him since birth and took him
in as an adopted son; Paciencia was a spinster without children, and without brothers and sisters; at the
time of Paciencias death, she did not suffer from any mental disorder and was of sound mind, was not
blind, deaf or mute; the Will was in the custody of Judge Limpin and was only given to him after
Paciencias death through Faustino; and he was already residing in the USA when the Will was
executed.33 Lorenzo positively identified the signature of Paciencia in three different documents and in
the Will itself and stated that he was familiar with Paciencias signature because he accompanied her in
her transactions.34 Further, Lorenzo belied and denied having used force, intimidation, violence,
coercion or trickery upon Paciencia to execute the Will as he was not in the Philippines when the same
was executed.35 On cross-examination, Lorenzo clarified that Paciencia informed him about the Will
shortly after her arrival in the USA but that he saw a copy of the Will only after her death. 36
As to Francisco, he could no longer be presented in court as he already died on May 21, 2000.
For petitioners, Rosie testified that her mother and Paciencia were first cousins.37 She claimed to have
helped in the household chores in the house of Paciencia thereby allowing her to stay therein from
morning until evening and that during the period of her service in the said household, Lorenzos wife
and his children were staying in the same house. 38 She served in the said household from 1980 until
Paciencias departure for the USA on September 19, 1981.39
On September 13, 1981, Rosie claimed that she saw Faustino bring "something" for Paciencia to sign at
the latters house.40 Rosie admitted, though, that she did not see what that "something" was as same
was placed inside an envelope.41 However, she remembered Paciencia instructing Faustino to first look
for money before she signs them.42 A few days after or on September 16, 1981, Paciencia went to the
house of Antonios mother and brought with her the said envelope.43 Upon going home, however, the
envelope was no longer with Paciencia.44 Rosie further testified that Paciencia was referred to as
"magulyan" or "forgetful" because she would sometimes leave her wallet in the kitchen then start
looking for it moments later.45 On cross examination, it was established that Rosie was neither a doctor
nor a psychiatrist, that her conclusion that Paciencia was "magulyan" was based on her personal
assessment,46 and that it was Antonio who requested her to testify in court. 47
In his direct examination, Antonio stated that Paciencia was his aunt.48 He identified the Will and
testified that he had seen the said document before because Paciencia brought the same to his
mothers house and showed it to him along with another document on September 16, 1981. 49 Antonio
alleged that when the documents were shown to him, the same were still unsigned.50 According to him,
Paciencia thought that the documents pertained to a lease of one of her rice lands, 51 and it was he who
explained that the documents were actually a special power of attorney to lease and sell her fishpond
and other properties upon her departure for the USA, and a Will which would transfer her properties to
Lorenzo and his family upon her death.52 Upon hearing this, Paciencia allegedly uttered the following
words: "Why will I never [return], why will I sell all my properties?" Who is Lorenzo? Is he the only [son]
of God? I have other relatives [who should] benefit from my properties. Why should I die
already?"53 Thereafter, Antonio advised Paciencia not to sign the documents if she does not want to, to
which the latter purportedly replied, "I know nothing about those, throw them away or it is up to you. The
more I will not sign them."54 After which, Paciencia left the documents with Antonio. Antonio kept the
unsigned documents
and eventually turned them over to Faustino on September 18, 1981. 55
Ruling of the Regional Trial Court
On September 30, 2003, the RTC rendered its Decision56 denying the petition thus:
WHEREFORE, this court hereby (a) denies the petition dated April 24, 2000; and (b) disallows the
notarized will dated September 13, 1981 of Paciencia Regala.
SO ORDERED.57
The trial court gave considerable weight to the testimony of Rosie and concluded that at the time
Paciencia signed the Will, she was no longer possessed of sufficient reason or strength of mind to have
testamentary capacity.58
Ruling of the Court of Appeals
On appeal, the CA reversed the RTC Decision and granted the probate of the Will of Paciencia. The
appellate court did not agree with the RTCs conclusion that Paciencia was of unsound mind when she
executed the Will. It ratiocinated that "the state of being magulyan does not make a person mentally
unsound so [as] to render [Paciencia] unfit for executing a Will."59 Moreover, the oppositors in the
probate proceedings were not able to overcome the presumption that every person is of sound mind.
Further, no concrete circumstances or events were given to prove the allegation that Paciencia was
tricked or forced into signing the Will.60
Petitioners moved for reconsideration61 but the motion was denied by the CA in its Resolution62 dated
August 31, 2006.
Hence, this petition.
Issues
Petitioners come before this Court by way of Petition for Review on Certiorari ascribing upon the CA the
following errors:
I.
THE HONORABLE COURT OF APPEALS SERIOUSLY ERRED WHEN IT ALLOWED THE
PROBATE OF PACIENCIAS WILL DESPITE RESPONDENTS UTTER FAILURE TO
COMPLY WITH SECTION 11, RULE 76 OF THE RULES OF COURT;
II.
THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN MAKING CONCLUSIONS
NOT IN ACCORDANCE WITH THE EVIDENCE ON RECORD;
III.
THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN RULING THAT
PETITIONERS FAILED TO PROVE THAT PACIENCIA WAS NOT OF SOUND MIND AT THE
TIME THE WILL WAS ALLEGEDLY EXECUTED63
The pivotal issue is whether the authenticity and due execution of the notarial Will was sufficiently
established to warrant its allowance for probate.
Our Ruling
We deny the petition.
Faithful compliance with the formalities laid down by law is apparent from the face of the Will.
Courts are tasked to determine nothing more than the extrinsic validity of a Will in probate
proceedings.64 This is expressly provided for in Rule 75, Section 1 of the Rules of Court, which states:
Rule 75
Production of Will. Allowance of Will Necessary.
Section 1. Allowance necessary. Conclusive as to execution. No will shall pass either real or personal
estate unless it is proved and allowed in the proper court. Subject to the right of appeal, such allowance
of the will shall be conclusive as to its due execution.
Due execution of the will or its extrinsic validity pertains to whether the testator, being of sound mind,
freely executed the will in accordance with the formalities prescribed by law. 65 These formalities are
enshrined in Articles 805 and 806 of the New Civil Code, to wit:
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.
Here, a careful examination of the face of the Will shows faithful compliance with the formalities laid
down by law. The signatures of the testatrix, Paciencia, her instrumental witnesses and the notary
public, are all present and evident on the Will. Further, the attestation clause explicitly states the critical
requirement that the testatrix and her instrumental witnesses signed the Will in the presence of one
another and that the witnesses attested and subscribed to the Will in the presence of the testator and of
one another. In fact, even the petitioners acceded that the signature of Paciencia in the Will may be
authentic although they question her state of mind when she signed the same as well as the voluntary
nature of said act.
The burden to prove that Paciencia was of unsound mind at the time of the execution of the will lies on
the shoulders of the petitioners.
Petitioners, through their witness Rosie, claim that Paciencia was "magulyan" or forgetful so much so
that it effectively stripped her of testamentary capacity. They likewise claimed in their Motion for
Reconsideration66 filed with the CA that Paciencia was not only "magulyan" but was actually suffering
from paranoia.67
We are not convinced.
We agree with the position of the CA that the state of being forgetful does not necessarily make a
person mentally unsound so as to render him unfit to execute a Will. 68 Forgetfulness is not equivalent to
being of unsound mind. Besides, Article 799 of the New Civil Code states:
Art. 799. To be of sound mind, it is not necessary that the testator be in full possession of all his
reasoning faculties, or that his mind be wholly unbroken, unimpaired, or unshattered by disease, injury
or other cause.
It shall be sufficient if the testator was able at the time of making the will to know the nature of the estate
to be disposed of, the proper objects of his bounty, and the character of the testamentary act.
In this case, apart from the testimony of Rosie pertaining to Paciencias forgetfulness, there is no
substantial evidence, medical or otherwise, that would show that Paciencia was of unsound mind at the
time of the execution of the Will. On the other hand, we find more worthy of credence Dra. Limpins
testimony as to the soundness of mind of Paciencia when the latter went to Judge Limpins house and
voluntarily executed the Will. "The testimony of subscribing witnesses to a Will concerning the testators
mental condition is entitled to great weight where they are truthful and intelligent." 69 More importantly, a
testator is presumed to be of sound mind at the time of the execution of the Will and the burden to prove
otherwise lies on the oppositor. Article 800 of the New Civil Code states:
Art. 800. The law presumes that every person is of sound mind, in the absence of proof to the contrary.
The burden of proof that the testator was not of sound mind at the time of making his dispositions is on
the person who opposes the probate of the will; but if the testator, one month, or less, before making his
will was publicly known to be insane, the person who maintains the validity of the will must prove that
the testator made it during a lucid interval.
Here, there was no showing that Paciencia was publicly known to be insane one month or less before
the making of the Will. Clearly, thus, the burden to prove that Paciencia was of unsound mind lies upon
the shoulders of petitioners. However and as earlier mentioned, no substantial evidence was presented
by them to prove the same, thereby warranting the CAs finding that petitioners failed to discharge such
burden.
Furthermore, we are convinced that Paciencia was aware of the nature of her estate to be disposed of,
the proper objects of her bounty and the character of the testamentary act. As aptly pointed out by the
CA:
A scrutiny of the Will discloses that [Paciencia] was aware of the nature of the document she executed.
She specially requested that the customs of her faith be observed upon her death. She was well aware
of how she acquired the properties from her parents and the properties she is bequeathing to
LORENZO, to his wife CORAZON and to his two (2) children. A third child was born after the execution
of the will and was not included therein as devisee.70
Bare allegations of duress or influence of fear or threats, undue and improper influence and pressure,
fraud and trickery cannot be used as basis to deny the probate of a will.
An essential element of the validity of the Will is the willingness of the testator or testatrix to execute the
document that will distribute his/her earthly possessions upon his/her death. Petitioners claim that
Paciencia was forced to execute the Will under duress or influence of fear or threats; that the execution
of the Will had been procured by undue and improper pressure and influence by Lorenzo or by some
other persons for his benefit; and that assuming Paciencias signature to be genuine, it was obtained
through fraud or trickery. These are grounded on the alleged conversation between Paciencia and
Antonio on September 16, 1981 wherein the former purportedly repudiated the Will and left it unsigned.
We are not persuaded.
We take into consideration the unrebutted fact that Paciencia loved and treated Lorenzo as her own son
and that love even extended to Lorenzos wife and children. This kind of relationship is not unusual. It is
in fact not unheard of in our culture for old maids or spinsters to care for and raise their nephews and
nieces and treat them as their own children. Such is a prevalent and accepted cultural practice that has
resulted in many family discords between those favored by the testamentary disposition of a testator
and those who stand to benefit in case of intestacy.
In this case, evidence shows the acknowledged fact that Paciencias relationship with Lorenzo and his
family is different from her relationship with petitioners. The very fact that she cared for and raised
Lorenzo and lived with him both here and abroad, even if the latter was already married and already has
children, highlights the special bond between them. This unquestioned relationship between Paciencia
and the devisees tends to support the authenticity of the said document as against petitioners
allegations of duress, influence of fear or threats, undue and improper influence, pressure, fraud, and
trickery which, aside from being factual in nature, are not supported by concrete, substantial and
credible evidence on record. It is worth stressing that bare arguments, no matter how forceful, if not
based on concrete and substantial evidence cannot suffice to move the Court to uphold said
allegations.71Furthermore, "a purported will is not [to be] denied legalization on dubious grounds.
Otherwise, the very institution of testamentary succession will be shaken to its foundation, for even if a
will has been duly executed in fact, whether x x x it will be probated would have to depend largely on the
attitude of those interested in [the estate of the deceased]."72
Court should be convinced by the evidence presented before it that the Will was duly executed.
Petitioners dispute the authenticity of Paciencias Will on the ground that Section 11 of Rule 76 of the
Rules of Court was not complied with. It provides:
 RULE 76
Allowance or Disallowance of Will
Section 11. Subscribing witnesses produced or accounted for where will contested. If the will is
contested, all the subscribing witnesses, and the notary in the case of wills executed under the Civil
Code of the Philippines, if present in the Philippines and not insane, must be produced and examined,
and the death, absence, or insanity of any of them must be satisfactorily shown to the court. If all or
some of such witnesses are present in the Philippines but outside the province where the will has been
filed, their deposition must be taken. If any or all of them testify against the due execution of the will, or
do not remember having attested to it, or are otherwise of doubtful credibility, the will may nevertheless,
be allowed if the court is satisfied from the testimony of other witnesses and from all the evidence
presented that the will was executed and attested in the manner required by law.
coupled with Lorenzos established relationship with Paciencia, the evidence and the testimonies of
disinterested witnesses, as opposed to the total lack of evidence presented by petitioners apart from
their self-serving testimonies, constrain us to tilt the balance in favor of the authenticity of the Will and its
allowance for probate.
WHEREFORE, the petition is DENIED. The Decision dated June 15, 2006 and the Resolution dated
August 31, 2006 of the Court of Appeals in CA-G.R. CV No. 80979 are AFFIRMED.
SO ORDERED.
MARIANO C. DEL CASTILLO

If a holographic will is contested, the same shall be allowed if at least three (3) witnesses who know the
handwriting of the testator explicitly declare that the will and the signature are in the handwriting of the
testator; in the absence of any competent witnesses, and if the court deem it necessary, expert
testimony may be resorted to. (Emphasis supplied.)

They insist that all subscribing witnesses and the notary public should have been presented in court
since all but one witness, Francisco, are still living.

We cannot agree with petitioners.

We note that the inability of Faustino and Judge Limpin to appear and testify before the court was
satisfactorily explained during the probate proceedings. As testified to by his son, Faustino had a heart
attack, was already bedridden and could no longer talk and express himself due to brain damage. To
prove this, said witness presented the corresponding medical certificate. For her part, Dra. Limpin
testified that her father, Judge Limpin, suffered a stroke in 1991 and had to undergo brain surgery. At
that time, Judge Limpin could no longer talk and could not even remember his daughters name so that
Dra. Limpin stated that given such condition, her father could no longer testify. It is well to note that at
that point, despite ample opportunity, petitioners neither interposed any objections to the testimonies of
said witnesses nor challenged the same on cross examination. We thus hold that for all intents and
purposes, Lorenzo was able to satisfactorily account for the incapacity and failure of the said
subscribing witness and of the notary public to testify in court. Because of this the probate of
Paciencias Will may be allowed on the basis of Dra. Limpins testimony proving her sanity and the due
execution of the Will, as well as on the proof of her handwriting. It is an established rule that "[a]
testament may not be disallowed just because the attesting witnesses declare against its due execution;
neither does it have to be necessarily allowed just because all the attesting witnesses declare in favor of
its legalization; what is decisive is that the court is convinced by evidence before it, not necessarily from
the attesting witnesses, although they must testify, that the will was or was not duly executed in the
manner required by law."731wphi1

Moreover, it bears stressing that "[i]rrespective x x x of the posture of any of the parties as regards the
authenticity and due execution of the will x x x in question, it is the mandate of the law that it is the
evidence before the court and/or [evidence that] ought to be before it that is controlling."74 "The very
existence of [the Will] is in itself prima facie proof that the supposed [testatrix] has willed that [her] estate
be distributed in the manner therein provided, and it is incumbent upon the state that, if legally tenable,
such desire be given full effect independent of the attitude of the parties affected thereby." 75 This,
 THIRD DIVISION 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
G.R. No. 122880 April 12, 2006 bantayog upang silbing ala-ala sa akin ng aking pamilya at kaibigan;

FELIX AZUELA, Petitioner, Pangalawa-Aking ipinagkakaloob at isinasalin ang lahat ng karapatan sa aking pamangkin na si Felix
vs. Azuela, na siyang nag-alaga sa akin sa mahabang panahon, yaong mga bahay na nakatirik sa lote
COURT OF APPEALS, GERALDA AIDA CASTILLO substituted by ERNESTO G. numero 28, Block 24 at nakapangalan sa Pechaten Korporasyon, ganoon din ibinibigay ko ang lahat ng
CASTILLO, Respondents. 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
DECISION pasubalit at kondiciones;

TINGA, J.: 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.
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 Aking nilagdaan ang Huling Habilin na ito dito sa Maynila ika 10 ng Hunyo, 1981.
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.
(Sgd.)
EUGENIA E. IGSOLO
A will whose attestation clause does not contain the number of pages on which the will is (Tagapagmana)
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 PATUNAY NG MGA SAKSI
deny probate. A notarial will with all three defects is just aching for judicial rejection.
Ang kasulatang ito, na binubuo ng ____ dahon pati ang huling dahong ito, na ipinahayag sa amin ni
There is a distinct and consequential reason the Civil Code provides a comprehensive catalog of Eugenia E. Igsolo, tagapagmana na siya niyang Huling Habilin, ngayon ika-10 ng Hunyo 1981, ay
imperatives for the proper execution of a notarial will. Full and faithful compliance with all the detailed nilagdaan ng nasabing tagapagmana sa ilalim ng kasulatang nabanggit at sa kaliwang panig ng lahat at
requisites under Article 805 of the Code leave little room for doubt as to the validity in the due execution bawat dahon, sa harap ng lahat at bawat sa amin, at kami namang mga saksi ay lumagda sa harap ng
of the notarial will. Article 806 likewise imposes another safeguard to the validity of notarial wills that nasabing tagapagmana at sa harap ng lahat at bawat isa sa amin, sa ilalim ng nasabing kasulatan at
they be acknowledged before a notary public by the testator and the witnesses. A notarial will executed sa kaliwang panig ng lahat at bawat dahon ng kasulatan ito.
with indifference to these two codal provisions opens itself to nagging questions as to its legitimacy.
EUGENIA E. IGSOLO
The case stems from a petition for probate filed on 10 April 1984 with the Regional Trial Court (RTC) of address: 500 San Diego St.
Manila. The petition filed by petitioner Felix Azuela sought to admit to probate the notarial will of Sampaloc, Manila Res. Cert. No. A-7717-37
Eugenia E. Igsolo, which was notarized on 10 June 1981. Petitioner is the son of the cousin of the Issued at Manila on March 10, 1981.
decedent.
QUIRINO AGRAVA
The will, consisting of two (2) pages and written in the vernacular Pilipino, read in full: address: 1228-Int. 3, Kahilum
Pandacan, Manila Res. Cert. No. A-458365
Issued at Manila on Jan. 21, 1981
HULING HABILIN NI EUGENIA E. IGSOLO
LAMBERTO C. LEAO
SA NGALAN NG MAYKAPAL, AMEN: address: Avenue 2, Blcok 7,
Lot 61, San Gabriel, G.MA., Cavite Res.
AKO, si EUGENIA E. IGSOLO, nakatira sa 500 San Diego St., Sampaloc, Manila, pitongput siyam (79) Cert. No. A-768277 issued at Carmona, Cavite on Feb. 7, 1981
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: 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 petitioners 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 decedents 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 oppositors 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
bawat dahon, sa harap ng lahat at bawat sa amin, at kami namang mga saksi ay lumagda sa harap ng
nasabing tagapagmana at sa harap ng lahat at bawat isa sa amin, sa ilalim ng nasabing kasulatan at
sa kaliwang panig ng lahat at bawat 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 oppositors 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 oppositors 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 oppositors 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 versus Emilia
Florentino, et al., 92 Phil. 161 and Apolonio [Taboada] versus 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
versus 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:
"x x x
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 vs.
Navas L. Sioca, 43 Phil., 405; Gumban vs. Gorcho, 50 Phil. 30; Quinto vs. Morata, 54 Phil. 481;
Echevarria vs. 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 versus Hon. Avelino Rosal, et al." supra, the notarial acknowledgement in the Will
states the number of pages used in the:
"x x x
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 anothers 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 testators 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 so-called "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. 45Taken
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.
SO ORDERED.
 THIRD DIVISION
G.R. No. 157451 December 16, 2005
LETICIA VALMONTE ORTEGA, Petitioner,
vs.
JOSEFINA C. VALMONTE, Respondent.
DECISION
PANGANIBAN, J.:
The law favors the probate of a will. Upon those who oppose it rests the burden of showing why it
should not be allowed. In the present case, petitioner has failed to discharge this burden satisfactorily.
For this reason, the Court cannot attribute any reversible error on the part of the appellate tribunal that
allowed the probate of the will.
The Case
Before the Court is a Petition for Review1 under Rule 45 of the Rules of Court, seeking to reverse and
set aside the December 12, 2002 Decision2 and the March 7, 2003 Resolution3 of the Court of Appeals
(CA) in CA-GR CV No. 44296. The assailed Decision disposed as follows:
"WHEREFORE, the appeal is GRANTED, and the Decision appealed from is REVERSED and SET
ASIDE. In its place judgment is rendered approving and allowing probate to the said last will and
testament of Placido Valmonte and ordering the issuance of letters testamentary to the petitioner
Josefina Valmonte. Let this case be remanded to the court a quo for further and concomitant
proceedings."4
The assailed Resolution denied petitioners Motion for Reconsideration.
The Facts
The facts were summarized in the assailed Decision of the CA, as follows:
"x x x: Like so many others before him, Placido toiled and lived for a long time in the United States until
he finally reached retirement. In 1980, Placido finally came home to stay in the Philippines, and he lived
in the house and lot located at #9200 Catmon St., San Antonio Village, Makati, which he owned in
common with his sister Ciriaca Valmonte and titled in their names in TCT 123468. Two years after his
arrival from the United States and at the age of 80 he wed Josefina who was then 28 years old, in a
ceremony solemnized by Judge Perfecto Laguio, Jr. on February 5, 1982. But in a little more than two
years of wedded bliss, Placido died on October 8, 1984 of a cause written down as COR PULMONALE.
"Placido executed a notarial last will and testament written in English and consisting of two (2) pages,
and dated June 15, 1983 but acknowledged only on August 9, 1983. The first page contains the entire
testamentary dispositions and a part of the attestation clause, and was signed at the end or bottom of
that page by the testator and on the left hand margin by the three instrumental witnesses. The second
page contains the continuation of the attestation clause and the acknowledgment, and was signed by
the witnesses at the end of the attestation clause and again on the left hand margin. It provides in the
body that:
LAST WILL AND TESTAMENT OF PLACIDO VALMONTE IN THE NAME OF THE LORD AMEN:
I, PLACIDO VALMONTE, of legal age, married to Josefina Cabansag Valmonte, and a resident of 9200
Catmon Street, Makati, Metro Manila, 83 years of age and being of sound and disposing mind and
memory, do hereby declare this to be my last will and testament:
1. It is my will that I be buried in the Catholic Cemetery, under the auspices of the Catholic Church in
accordance with the rites and said Church and that a suitable monument to be erected and provided my
by executrix (wife) to perpetuate my memory in the minds of my family and friends;
2. I give, devise and bequeath unto my loving wife, JOSEFINA C. VALMONTE, one half (1/2) portion of
the follow-described properties, which belongs to me as [co-owner]:
a. Lot 4-A, Block 13 described on plan Psd-28575, LRC, (GLRO), situated in Makati, Metro Manila,
described and covered by TCT No. 123468 of the Register of Deeds of Pasig, Metro-Manila registered
jointly as co-owners with my deceased sister (Ciriaca Valmonte), having share and share alike;
b. 2-storey building standing on the above-described property, made of strong and mixed materials
used as my residence and my wife and located at No. 9200 Catmon Street, Makati, Metro Manila also
covered by Tax Declaration No. A-025-00482, Makati, Metro-Manila, jointly in the name of my deceased
sister, Ciriaca Valmonte and myself as co-owners, share and share alike or equal co-owners thereof;
3. All the rest, residue and remainder of my real and personal properties, including my savings account
bank book in USA which is in the possession of my nephew, and all others whatsoever and wherever
found, I give, devise and bequeath to my said wife, Josefina C. Valmonte;
4. I hereby appoint my wife, Josefina C. Valmonte as sole executrix of my last will and testament, and it
is my will that said executrix be exempt from filing a bond;
IN WITNESS WHEREOF, I have hereunto set my hand this 15th day of June 1983 in Quezon City,
Philippines.
"The allowance to probate of this will was opposed by Leticia on the grounds that:
1. Petitioner failed to allege all assets of the testator, especially those found in the USA;
2. Petitioner failed to state the names, ages, and residences of the heirs of the testator; or to give them
proper notice pursuant to law;
3. Will was not executed and attested as required by law and legal solemnities and formalities were not
complied with;
4. Testator was mentally incapable to make a will at the time of the alleged execution he being in an
advance sate of senility;
5. Will was executed under duress, or the influence of fear or threats;
6. Will was procured by undue and improper influence and pressure on the part of the petitioner and/or
her agents and/or assistants; and/or
7. Signature of testator was procured by fraud, or trick, and he did not intend that the instrument should
be his will at the time of affixing his signature thereto;
and she also opposed the appointment as Executrix of Josefina alleging her want of understanding and
integrity.
"At the hearing, the petitioner Josefina testified and called as witnesses the notary public Atty. Floro
Sarmiento who prepared and notarized the will, and the instrumental witnesses spouses Eugenio
Gomez, Jr. and Feliza Gomez and Josie Collado. For the opposition, the oppositor Leticia and her
daughter Mary Jane Ortega testified.
"According to Josefina after her marriage with the testator they lived in her parents house at Salingcob,
Bacnotan, La Union but they came to Manila every month to get his $366.00 monthly pension and
stayed at the said Makati residence. There were times though when to shave off on expenses, the
testator would travel alone. And it was in one of his travels by his lonesome self when the notarial will
was made. The will was witnessed by the spouses Eugenio and Feliza Gomez, who were their wedding
sponsors, and by Josie Collado. Josefina said she had no knowledge of the existence of the last will
and testament of her husband, but just serendipitously found it in his attache case after his death. It was
only then that she learned that the testator bequeathed to her his properties and she was named the
executrix in the said will. To her estimate, the value of property both real and personal left by the
testator is worth more or less P100,000.00. Josefina declared too that the testator never suffered mental
infirmity because despite his old age he went alone to the market which is two to three kilometers from
their home cooked and cleaned the kitchen and sometimes if she could not accompany him, even
traveled to Manila alone to claim his monthly pension. Josefina also asserts that her husband was in
good health and that he was hospitalized only because of a cold but which eventually resulted in his
death.
"Notary Public Floro Sarmiento, the notary public who notarized the testators will, testified that it was in
the first week of June 1983 when the testator together with the three witnesses of the will went to his
house cum law office and requested him to prepare his last will and testament. After the testator
instructed him on the terms and dispositions he wanted on the will, the notary public told them to come
back on June 15, 1983 to give him time to prepare it. After he had prepared the will the notary public
kept it safely hidden and locked in his drawer. The testator and his witnesses returned on the appointed
date but the notary public was out of town so they were instructed by his wife to come back on August
9, 1983, and which they did. Before the testator and his witnesses signed the prepared will, the notary
public explained to them each and every term thereof in Ilocano, a dialect which the testator spoke and
understood. He likewise explained that though it appears that the will was signed by the testator and his
witnesses on June 15, 1983, the day when it should have been executed had he not gone out of town,
the formal execution was actually on August 9, 1983. He reasoned that he no longer changed the
typewritten date of June 15, 1983 because he did not like the document to appear dirty. The notary
public also testified that to his observation the testator was physically and mentally capable at the time
he affixed his signature on the will.
"The attesting witnesses to the will corroborated the testimony of the notary public, and testified that the
testator went alone to the house of spouses Eugenio and Feliza Gomez at GSIS Village, Quezon City
and requested them to accompany him to the house of Atty. Floro Sarmiento purposely for his intended
will; that after giving his instructions to Atty. Floro Sarmiento, they were told to return on June 15, 1983;
that they returned on June 15, 1983 for the execution of the will but were asked to come back instead
on August 9, 1983 because of the absence of the notary public; that the testator executed the will in
question in their presence while he was of sound and disposing mind and that he was strong and in
good health; that the contents of the will was explained by the notary public in the Ilocano and Tagalog
dialect and that all of them as witnesses attested and signed the will in the presence of the testator and
of each other. And that during the execution, the testators wife, Josefina was not with them.
"The oppositor Leticia declared that Josefina should not inherit alone because aside from her there are
other children from the siblings of Placido who are just as entitled to inherit from him. She attacked the
mental capacity of the testator, declaring that at the time of the execution of the notarial will the testator
was already 83 years old and was no longer of sound mind. She knew whereof she spoke because in
1983 Placido lived in the Makati residence and asked Leticias family to live with him and they took care
of him. During that time, the testators physical and mental condition showed deterioration, aberrations
and senility. This was corroborated by her daughter Mary Jane Ortega for whom Placido took a fancy
and wanted to marry.
"Sifting through the evidence, the court a quo held that [t]he evidence adduced, reduces the opposition
to two grounds, namely:
1. Non-compliance with the legal solemnities and formalities in the execution and attestation of the will;
and
2. Mental incapacity of the testator at the time of the execution of the will as he was then in an advanced
state of senility
"It then found these grounds extant and proven, and accordingly disallowed probate." 5
Ruling of the Court of Appeals
Reversing the trial court, the appellate court admitted the will of Placido Valmonte to probate. The CA
upheld the credibility of the notary public and the subscribing witnesses who had acknowledged the due
execution of the will. Moreover, it held that the testator had testamentary capacity at the time of the
execution of the will. It added that his "sexual exhibitionism and unhygienic, crude and impolite
ways"6 did not make him a person of unsound mind.
Hence, this Petition.7
Issues
Petitioner raises the following issues for our consideration:
 "I.
Whether or not the findings of the probate court are entitled to great respect.
"II.
Whether or not the signature of Placido Valmonte in the subject will was procured by fraud or trickery,
and that Placido Valmonte never intended that the instrument should be his last will and testament.
"III.
Whether or not Placido Valmonte has testamentary capacity at the time he allegedly executed the
subject will."8
In short, petitioner assails the CAs allowance of the probate of the will of Placido Valmonte.
This Courts Ruling
The Petition has no merit.
Main Issue:
Probate of a Will
At the outset, we stress that only questions of law may be raised in a Petition for Review under Section
1 of Rule 45 of the Rules of Court. As an exception, however, the evidence presented during the trial
may be examined and the factual matters resolved by this Court when, as in the instant case, the
findings of fact of the appellate court differ from those of the trial court.9
The fact that public policy favors the probate of a will does not necessarily mean that every will
presented for probate should be allowed. The law lays down the procedures and requisites that must be
satisfied for the probate of a will.10 Verily, Article 839 of the Civil Code states the instances when a will
may be disallowed, as follows:
"Article 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."
In the present case, petitioner assails the validity of Placido Valmontes will by imputing fraud in its
execution and challenging the testators state of mind at the time.
Existence of Fraud in the
Execution of a Will
Petitioner does not dispute the due observance of the formalities in the execution of the will, but
maintains that the circumstances surrounding it are indicative of the existence of fraud. Particularly, she
alleges that respondent, who is the testators wife and sole beneficiary, conspired with the notary public
and the three attesting witnesses in deceiving Placido to sign it. Deception is allegedly reflected in the
varying dates of the execution and the attestation of the will.
Petitioner contends that it was "highly dubious for a woman at the prime of her young life [to] almost
immediately plunge into marriage with a man who [was] thrice her age x x x and who happened to be [a]
Fil-American pensionado,"11 thus casting doubt on the intention of respondent in seeking the probate of
the will. Moreover, it supposedly "defies human reason, logic and common experience" 12 for an old man
with a severe psychological condition to have willingly signed a last will and testament.
We are not convinced. Fraud "is a trick, secret device, false statement, or pretense, by which the
subject of it is cheated. It may be of such character that the testator is misled or deceived as to the
nature or contents of the document which he executes, or it may relate to some extrinsic fact, in
consequence of the deception regarding which the testator is led to make a certain will which, but for
the fraud, he would not have made."13
We stress that the party challenging the will bears the burden of proving the existence of fraud at the
time of its execution.14 The burden to show otherwise shifts to the proponent of the will only upon a
showing of credible evidence of fraud.15 Unfortunately in this case, other than the self-serving
allegations of petitioner, no evidence of fraud was ever presented.
It is a settled doctrine that the omission of some relatives does not affect the due execution of a
will.16 That the testator was tricked into signing it was not sufficiently established by the fact that he had
instituted his wife, who was more than fifty years his junior, as the sole beneficiary; and disregarded
petitioner and her family, who were the ones who had taken "the cudgels of taking care of [the testator]
in his twilight years."17
Moreover, as correctly ruled by the appellate court, the conflict between the dates appearing on the will
does not invalidate the document, "because the law does not even require that a [notarial] will x x x be
executed and acknowledged on the same occasion."18 More important, the will must be subscribed by
the testator, as well as by three or more credible witnesses who must also attest to it in the presence of
the testator and of one another.19Furthermore, the testator and the witnesses must acknowledge the will
before a notary public.20 In any event, we agree with the CA that "the variance in the dates of the will as
to its supposed execution and attestation was satisfactorily and persuasively explained by the notary
public and the instrumental witnesses."21
The pertinent transcript of stenographic notes taken on June 11, 1985, November 25, 1985, October 13,
1986, and October 21, 1987 -- as quoted by the CA -- are reproduced respectively as follows:
"Atty. Floro Sarmiento:
Q You typed this document exhibit C, specifying the date June 15 when the testator and his witnesses
were supposed to be in your office?
A Yes sir.
Q On June 15, 1983, did the testator and his witnesses come to your house?
A They did as of agreement but unfortunately, I was out of town.
xxxxxxxxx
Q The document has been acknowledged on August 9, 1983 as per acknowledgement appearing
therein. Was this the actual date when the document was acknowledged?
A Yes sir.
Q What about the date when the testator and the three witnesses affixed their respective signature on
the first and second pages of exhibit C?
A On that particular date when it was acknowledged, August 9, 1983.
Q Why did you not make the necessary correction on the date appearing on the body of the document
as well as the attestation clause?
A Because I do not like anymore to make some alterations so I put it in my own handwriting August 9,
1983 on the acknowledgement. (tsn, June 11, 1985, pp. 8-10)
Eugenio Gomez:
Q It appears on the first page Mr. Witness that it is dated June 15, 1983, whereas in the
acknowledgement it is dated August 9, 1983, will you look at this document and tell us this discrepancy
in the date?
A We went to Atty. Sarmiento together with Placido Valmonte and the two witnesses; that was first week
of June and Atty. Sarmiento told us to return on the 15th of June but when we returned, Atty. Sarmiento
was not there.
Q When you did not find Atty. Sarmiento on June 15, 1983, did you again go back?
A We returned on the 9th of August and there we signed.
Q This August 9, 1983 where you said it is there where you signed, who were your companions?
A The two witnesses, me and Placido Valmonte. (tsn, November 25, 1985, pp. 7-8)
Felisa Gomez on cross-examination:
Q Why did you have to go to the office of Atty. Floro Sarmiento, three times?
xxxxxxxxx
A The reason why we went there three times is that, the first week of June was out first time. We went
there to talk to Atty. Sarmiento and Placido Valmonte about the last will and testament. After that what
they have talked what will be placed in the testament, what Atty. Sarmiento said was that he will go
back on the 15th of June. When we returned on June 15, Atty. Sarmiento was not there so we were not
able to sign it, the will. That is why, for the third time we went there on August 9 and that was the time
we affixed our signature. (tsn, October 13, 1986, pp. 4-6)
Josie Collado:
Q When you did not find Atty. Sarmiento in his house on June 15, 1983, what transpired?
A The wife of Atty. Sarmiento told us that we will be back on August 9, 1983.
Q And on August 9, 1983 did you go back to the house of Atty. Sarmiento?
A Yes, Sir.
Q For what purpose?
A Our purpose is just to sign the will.
Q Were you able to sign the will you mentioned?
A Yes sir. (tsn, October 21, 1987, pp. 4-5)"22
Notably, petitioner failed to substantiate her claim of a "grand conspiracy" in the commission of a fraud.
There was no showing that the witnesses of the proponent stood to receive any benefit from the
allowance of the will. The testimonies of the three subscribing witnesses and the notary are credible
evidence of its due execution.23 Their testimony favoring it and the finding that it was executed in
accordance with the formalities required by law should be affirmed, absent any showing of ill motives. 24
Capacity to Make a Will
In determining the capacity of the testator to make a will, the Civil Code gives the following guidelines: SO ORDERED.

"Article 798. In order to make a will it is essential that the testator be of sound mind at the time of its
execution.

"Article 799. To be of sound mind, it is not necessary that the testator be in full possession of all his
reasoning faculties, or that his mind be wholly unbroken, unimpaired, or shattered by disease, injury or
other cause.

"It shall be sufficient if the testator was able at the time of making the will to know the nature of the
estate to be disposed of, the proper objects of his bounty, and the character of the testamentary act.

"Article 800. The law presumes that every person is of sound mind, in the absence of proof to the
contrary.

"The burden of proof that the testator was not of sound mind at the time of making his dispositions is on
the person who opposes the probate of the will; but if the testator, one month, or less, before making his
will was publicly known to be insane, the person who maintains the validity of the will must prove that
the testator made it during a lucid interval."

According to Article 799, the three things that the testator must have the ability to know to be considered
of sound mind are as follows: (1) the nature of the estate to be disposed of, (2) the proper objects of the
testators bounty, and (3) the character of the testamentary act. Applying this test to the present case,
we find that the appellate court was correct in holding that Placido had testamentary capacity at the time
of the execution of his will.

It must be noted that despite his advanced age, he was still able to identify accurately the kinds of
property he owned, the extent of his shares in them and even their locations. As regards the proper
objects of his bounty, it was sufficient that he identified his wife as sole beneficiary. As we have stated
earlier, the omission of some relatives from the will did not affect its formal validity. There being no
showing of fraud in its execution, intent in its disposition becomes irrelevant.

Worth reiterating in determining soundness of mind is Alsua-Betts v. CA,25 which held thus:

"Between the highest degree of soundness of mind and memory which unquestionably carries with it full
testamentary capacity, and that degrees of mental aberration generally known as insanity or idiocy,
there are numberless degrees of mental capacity or incapacity and while on one hand it has been held
that mere weakness of mind, or partial imbecility from disease of body, or from age, will not render a
person incapable of making a will; a weak or feebleminded person may make a valid will, provided he
has understanding and memory sufficient to enable him to know what he is about to do and how or to
whom he is disposing of his property. To constitute a sound and disposing mind, it is not necessary that
the mind be unbroken or unimpaired or unshattered by disease or otherwise. It has been held that
testamentary incapacity does not necessarily require that a person shall actually be insane or of
unsound mind."26

WHEREFORE, the Petition is DENIED, and the assailed Decision and Resolution of the Court of
Appeals are AFFIRMED. Costs against petitioner.
 EN BANC A. 1641 After I signed I asked permission to leave, because I was in a hurry, and while I
was leaving Julio had already taken the pen in his hand, as it appeared, for the purpose of
G.R. No. 1641 January 19, 1906 signing, and when I was near the door I happened to turn my face and I saw that he had his
hand with the pen resting on the will, moving it as if for the purpose of signing.
GERMAN JABONETA, plaintiff-appellant,
vs. Q. 1641 State positively whether Julio moved his hand with the pen as if for the purpose
RICARDO GUSTILO, ET AL., defendants-appellees. of signing, or whether he was signing

Ledesma, Sumulong and Quintos for appellant. A. I believe he was signing.

Del-Pan, Ortigas and Fisher for appellees.
The truth and accuracy of the testimony of this witness does not seem to have been questioned by any
CARSON, J.: of the parties to the proceedings, but the court, nevertheless, found the following facts:

In these proceedings probate was denied the last will and testament of Macario Jaboneta, deceased, On the 26th day of December, 1901, Macario Jaboneta executed under the following
because the lower court was of the opinion from the evidence adduced at the hearing that Julio circumstances the document in question, which has been presented for probate as his will:
Javellana, one of the witnesses, did not attach his signature thereto in the presence of Isabelo Jena,
another of the witnesses, as required by the provisions of section 618 of the Code of Civil Procedure. Being in the house of Arcadio Jarandilla, in Jaro, in this province, he ordered that the
document in question be written, and calling Julio Javellana, Aniceto Jalbuena, and Isabelo
The following is a copy of the evidence which appears of record on this particular point, being a part of Jena as witnesses, executed the said document as his will. They were all together, and were in
the testimony of the said Isabeo Jena: the room where Jaboneta was, and were present when he signed the document, Isabelo Jena
signing afterwards as a witness, at his request, and in his presence and in the presence of the
other two witnesses. Aniceto Jalbuena then signed as a witness in the presence of the testator,
Q. 1641 Who first signed the will? and in the presence of the other two persons who signed as witnesses. At that moment Isabelo
Jena, being in a hurry to leave, took his hat and left the room. As he was leaving the house
A. 1641 I signed it first, and afterwards Aniceto and the others. Julio Javellana took the pen in his hand and put himself in position to sign the will as a witness,
but did not sign in the presence of Isabelo Jena; but nevertheless, after Jena had left the room
Q. 1641 Who were those others to whom you have just referred? the said Julio Javellana signed as a witness in the presence of the testator and of the witness
Aniceto Jalbuena.

A. 1641 After the witness Aniceto signed the will I left the house, because I was in a
hurry, and at the moment when I was leaving I saw Julio Javellana with the pen in his hand in We can not agree with so much of the above finding of facts as holds that the signature of Javellana
position ready to sign (en actitud de firmar). I believe he signed, because he was at the table. . was not signed in the presence of Jena, in compliance with the provisions of section 618 of the Code of
.. Civil Procedure. The fact that Jena was still in the room when he saw Javellana moving his hand and
pen in the act of affixing his signature to the will, taken together with the testimony of the remaining
witnesses which shows that Javellana did in fact there and then sign his name to the will, convinces us
Q. 1641 State positively whether Julio Javellana did or did not sign as a witness to the that the signature was affixed in the presence of Jena. The fact that he was in the act of leaving, and
will. that his back was turned while a portion of the name of the witness was being written, is of no
importance. He, with the other witnesses and the testator, had assembled for the purpose of executing
A. 1641 I can't say certainly, because as I was leaving the house I saw Julio Javellana the testament, and were together in the same room for that purpose, and at the moment when the
with the pen in his hand, in position ready to sign. I believe he signed. witness Javellana signed the document he was actually and physically present and in such position with
relation to Javellana that he could see everything which took place by merely casting his eyes in the
proper direction, and without any physical obstruction to prevent his doing so, therefore we are of
Q. 1641 Why do you believe Julio Javellana signed?
opinion that the document was in fact signed before he finally left the room.

A. 1641 Because he had the pen in his hand, which was resting on the paper, though I
The purpose of a statutory requirement that the witness sign in the presence of the testator is
did not actually see him sign.
said to be that the testator may have ocular evidence of the identity of the instrument
subscribed by the witness and himself, and the generally accepted tests of presence are vision
Q. 1641 Explain this contradictory statement. and mental apprehension. (See Am. & Eng. Enc. of Law, vol. 30, p. 599, and cases there
cited.)
In the matter of Bedell (2 Connoly (N.Y.), 328) it was held that it is sufficient if the witnesses are
together for the purpose of witnessing the execution of the will, and in a position to actually see the
testator write, if they choose to do so; and there are many cases which lay down the rule that the true
test of vision is not whether the testator actually saw the witness sign, but whether he might have seen
him sign, considering his mental and physical condition and position at the time of the subscription.
(Spoonemore vs. Cables, 66 Mo., 579.)

The principles on which these cases rest and the tests of presence as between the testator and the
witnesses are equally applicable in determining whether the witnesses signed the instrument in the
presence of each other, as required by the statute, and applying them to the facts proven in these
proceedings we are of opinion that the statutory requisites as to the execution of the instrument were
complied with, and that the lower court erred in denying probate to the will on the ground stated in the
ruling appealed from.

We are of opinion from the evidence of record that the instrument propounded in these proceedings was
satisfactorily proven to be the last will and testament of Macario Jaboneta, deceased, and that it should
therefore be admitted to probate.

The judgment of the trial court is reversed, without especial condemnation of costs, and after twenty
days the record will be returned to the court form whence it came, where the proper orders will be
entered in conformance herewith. So ordered.
 SECOND DIVISION
G.R. No. 103554 May 28, 1993
TEODORO CANEDA, LORENZA CANEDA, TERESA CANEDA, JUAN CABALLERO, AUREA
CABALLERO, OSCAR LAROSA, HELEN CABALLERO, SANTOS CABALLERO, PABLO
CABALLERO, VICTOR RAGA, MAURICIA RAGA, QUIRICA RAGA, RUPERTO ABAPO,
represented herein by his Attorney-in-Fact, ARMSTICIA * ABAPO VELANO, and CONSESO
CANEDA, represented herein by his heirs, JESUS CANEDA, NATIVIDAD CANEDA and ARTURO
CANEDA, petitioners,
vs.
HON. COURT OF APPEALS and WILLIAM CABRERA, as Special Administrator of the Estate of
Mateo Caballero, respondents.
REGALADO, J.:
Presented for resolution by this Court in the present petition for review on certiorari is the issue of
whether or not the attestation clause contained in the last will and testament of the late Mateo Caballero
complies with the requirements of Article 805, in relation to Article 809, of the Civil Code.
The records show that on December 5, 1978, Mateo Caballero, a widower without any children and
already in the twilight years of his life, executed a last will and testament at his residence in Talisay,
Cebu before three attesting witnesses, namely, Cipriano Labuca, Gregorio Cabando and Flaviano
Toregosa. The said testator was duly assisted by his lawyer, Atty. Emilio Lumontad, and a notary public,
Atty. Filoteo Manigos, in the preparation of that last will. 1 It was declared therein, among other things,
that the testator was leaving by way of legacies and devises his real and personal properties to
Presentacion Gaviola, Angel Abatayo, Rogelio Abatayo, Isabelito Abatayo, Benoni G. Cabrera and
Marcosa Alcantara, all of whom do not appear to be related to the testator. 2
Four months later, or on April 4, 1979, Mateo Caballero himself filed a petition docketed as Special
Proceeding No. 3899-R before Branch II of the then Court of First Instance of Cebu seeking the probate
of his last will and testament. The probate court set the petition for hearing on August 20, 1979 but the
same and subsequent scheduled hearings were postponed for one reason to another. On May 29,
1980, the testator passed away before his petition could finally be heard by the probate court. 3 On
February 25, 1981, Benoni Cabrera, on of the legatees named in the will, sough his appointment as
special administrator of the testator's estate, the estimated value of which was P24,000.00, and he was
so appointed by the probate court in its order of March 6, 1981. 4
Thereafter, herein petitioners, claiming to be nephews and nieces of the testator, instituted a second
petition, entitled "In the Matter of the Intestate Estate of Mateo Caballero" and docketed as Special
Proceeding No. 3965-R, before Branch IX of the aforesaid Court of First Instance of Cebu. On October
18, 1982, herein petitioners had their said petition intestate proceeding consolidated with Special
Proceeding No. 3899-R in Branch II of the Court of First Instance of Cebu and opposed thereat the
probate of the Testator's will and the appointment of a special administrator for his estate. 5
Benoni Cabrera died on February 8, 1982 hence the probate court, now known as Branch XV of the
Regional Trial Court of Cebu, appointed William Cabrera as special administrator on June 21, 1983.
Thereafter, on July 20, 1983, it issued an order for the return of the records of Special Proceeding No.
3965-R to the archives since the testate proceeding for the probate of the will had to be heard and
resolved first. On March 26, 1984 the case was reraffled and eventually assigned to Branch XII of the
Regional Trial Court of Cebu where it remained until the conclusion of the probate proceedings. 6
In the course of the hearing in Special Proceeding No. 3899-R, herein petitioners appeared as
oppositors and objected to the allowance of the testator's will on the ground that on the alleged date of
its execution, the testator was already in the poor state of health such that he could not have possibly
executed the same. Petitioners likewise reiterated the issue as to the genuineness of the signature of
the testator therein. 7
On the other hand, one of the attesting witnesses, Cipriano Labuca, and the notary public Atty. Filoteo
Manigos, testified that the testator executed the will in question in their presence while he was of sound
and disposing mind and that, contrary to the assertions of the oppositors, Mateo Caballero was in good
health and was not unduly influenced in any way in the execution of his will. Labuca also testified that
he and the other witnesses attested and signed the will in the presence of the testator and of each
other. The other two attesting witnesses were not presented in the probate hearing as the had died by
then. 8
On April 5, 1988, the probate court rendered a decision declaring the will in question as the last will and
testament of the late Mateo Caballero, on the ratiocination that:
. . . The self-serving testimony of the two witnesses of the oppositors cannot
overcome the positive testimonies of Atty. Filoteo Manigos and Cipriano Labuca who
clearly told the Court that indeed Mateo Caballero executed the Last Will and
Testament now marked Exhibit "C" on December 5, 1978. Moreover, the fact that it
was Mateo Caballero who initiated the probate of his Will during his lifetime when he
caused the filing of the original petition now marked Exhibit "D" clearly underscores
the fact that this was indeed his Last Will. At the start, counsel for the oppositors
manifested that he would want the signature of Mateo Caballero in Exhibit "C"
examined by a handwriting expert of the NBI but it would seem that despite their
avowal and intention for the examination of this signature of Mateo Caballero in
Exhibit "C", nothing came out of it because they abandoned the idea and instead
presented Aurea Caballero and Helen Caballero Campo as witnesses for the
oppositors.
All told, it is the finding of this Court that Exhibit "C" is the Last Will and Testament of
Mateo Caballero and that it was executed in accordance with all the requisites of the
law. 9
Undaunted by the said judgment of the probate court, petitioners elevated the case in the Court of
Appeals in CA-G.R. CV No. 19669. They asserted therein that the will in question is null and void for the
reason that its attestation clause is fatally defective since it fails to specifically state that the instrumental
witnesses to the will witnessed the testator signing the will in their presence and that they also signed
the will and all the pages thereof in the presence of the testator and of one another.
On October 15, 1991, respondent court promulgated its decision 10 affirming that of the trial court, and
ruling that the attestation clause in the last will of Mateo Caballero substantially complies with Article
805 of the Civil Code, thus:
 The question therefore is whether the attestation clause in question may be
considered as having substantialy complied with the requirements of Art. 805 of the
Civil Code. What appears in the attestation clause which the oppositors claim to be
defective is "we do certify that the testament was read by him and the attestator,
Mateo Caballero, has published unto us the foregoing will consisting of THREE
PAGES, including the acknowledgment, each page numbered correlatively in letters
of the upper part of each page, as his Last Will and Testament, and he has signed the
same and every page thereof, on the spaces provided for his signature and on the left
hand margin in the presence of the said testator and in the presence of each and all
of us (emphasis supplied).
To our thinking, this is sufficient compliance and no evidence need be presented to
indicate the meaning that the said will was signed by the testator and by them (the
witnesses) in the presence of all of them and of one another. Or as the language of
the law would have it that the testator signed the will "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 not completely or
ideally perfect in accordance with the wordings of Art. 805 but (sic) the phrase as
formulated is in substantial compliance with the requirement of the law." 11
Petitioners moved for the reconsideration of the said ruling of respondent court, but the same was
denied in the latter's resolution of January 14, 1992, 12 hence this appeal now before us. Petitioners
assert that respondent court has ruled upon said issue in a manner not in accord with the law and
settled jurisprudence on the matter and are now questioning once more, on the same ground as that
raised before respondent court, the validity of the attestation clause in the last will of Mateo Caballero.
We find the present petition to be meritorious, as we shall shortly hereafter, after some prefatory
observations which we feel should be made in aid of the rationale for our resolution of the controversy.
1. A will has been defined as a species of conveyance whereby a person is permitted, with the
formalities prescribed by law, to control to a certain degree the disposition of his estate after his
death. 13 Under the Civil Code, there are two kinds of wills which a testator may execute. 14 the first kind
is the ordinary or attested will, the execution of which is governed by Articles 804 to 809 of the Code.
Article 805 requires that:
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 should 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 witness, it shall be
interpreted to them.
In addition, the ordinary will must be acknowledged before a notary public by a testator and the attesting
witness. 15hence it is likewise known as notarial will. Where the attestator is deaf or deaf-mute, Article
807 requires that he must personally read the will, if able to do so. Otherwise, he should designate two
persons who would read the will and communicate its contents to him in a practicable manner. On the
other hand, if the testator is blind, the will should be read to him twice; once, by anyone of the witnesses
thereto, and then again, by the notary public before whom it is acknowledged. 16
The other kind of will is the holographic will, which Article 810 defines as one that is entirely written,
dated, and signed by the testator himself. This kind of will, unlike the ordinary type, requires no
attestation by witnesses. A common requirement in both kinds of will is that they should be in writing
and must have been executed in a language or dialect known to the testator. 17
However, in the case of an ordinary or attested will, its attestation clause need not be written in a
language or dialect known to the testator since it does not form part of the testamentary disposition.
Furthermore, the language used in the attestation clause likewise need not even be known to the
attesting witnesses. 18 The last paragraph of Article 805 merely requires that, in such a case, the
attestation clause shall be interpreted to said witnesses.
An attestation clause refers to that part of an ordinary will whereby the attesting witnesses certify that
the instrument has been executed before them and to the manner of the execution the same. 19 It is a
separate memorandum or record of the facts surrounding the conduct of execution and once signed by
the witnesses, it gives affirmation to the fact that compliance with the essential formalities required by
law has been observed. 20 It is made for the purpose of preserving in a permanent form a record of the
facts that attended the execution of a particular will, so that in case of failure of the memory of the
attesting witnesses, or other casualty, such facts may still be proved. 21
Under the third paragraph of Article 805, such a clause, the complete lack of which would result in the
invalidity of the will, 22 should state (1) the number of the pages used upon which the will is written; (2)
that the testator signed, or expressly caused another to sign, the will and every page thereof in the
presence of the attesting witnesses; and (3) that the attesting witnesses witnessed the signing by the
testator of the will and all its pages, and that said witnesses also signed the will and every page
thereof in the presence of the testator and of one another.
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; 23 whereas the subscription of the signature of the testator and the
attesting witnesses is made for the purpose of authentication and identification, and thus indicates that
the will is the very same instrument executed by the testator and attested to by the witnesses. 24
Further, by attesting and subscribing to the will, the witnesses thereby declare the due execution of the
will as embodied in the attestation clause. 25 The attestation clause, therefore, provide strong legal
guaranties for the due execution of a will and to insure the authenticity thereof. 26 As it appertains only to
the witnesses and not to the testator, it need be signed only by them. 27 Where it is left unsigned, it
would result in the invalidation of the will as it would be possible and easy to add the clause on a
subsequent occasion in the absence of the testator and its witnesses. 28
In its report, the Code Commission commented on the reasons of the law for requiring the formalities to
be followed in the execution of wills, in the following manner:
The underlying and fundamental objectives 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, but
with sufficient safeguards and restrictions to prevent the commission of fraud and the
exercise of undue and improper pressure and influence upon the testator.
This objective is in accord with the modern tendency with respect to the formalities in
the execution of wills. . . . 29
2. An examination of the last will and testament of Mateo Caballero shows that it is comprised of three
sheets all of which have been numbered correlatively, with the left margin of each page thereof bearing
the respective signatures of the testator and the three attesting witnesses. The part of the will containing
the testamentary dispositions is expressed in the Cebuano-Visayan dialect and is signed at the foot
thereof by the testator. The attestation clause in question, on the other hand, is recited in the English
language and is likewise signed at the end thereof by the three attesting witnesses hereto. 30 Since it is
the proverbial bone of contention, we reproduce it again for facility of reference:
We, the undersigned attesting Witnesses, whose Residences and postal addresses
appear on the Opposite of our respective names, we do hereby certify that the
Testament was read by him and the testator, MATEO CABALLERO; has published
unto us the foregoing Will consisting of THREE PAGES, including the
Acknowledgment, each page numbered correlatively in the letters on the upper part of
each page, as his Last Will and Testament and he has the same and every page
thereof, on the spaces provided for his signature and on the left hand margin, in the
presence of the said testator and in the presence of each and all of us.
It will be noted that Article 805 requires that the witness should both attest and subscribe to the will in
the presence of the testator and of one another. "Attestation" and "subscription" differ in meaning.
Attestation is the act of senses, while subscription is the act of the hand. The former is mental, the latter
mechanical, and to attest a will is to know that it was published as such, and to certify the facts required
to constitute an actual and legal publication; but to subscribe a paper published as a will is only to write
on the same paper the names of the witnesses, for the sole purpose of identification. 31
In Taboada vs. Rizal, 32 we clarified that attestation consists in witnessing the testator's execution of the
will in order to see and take note mentally that those things are done which the statute requires for the
execution of a will and that the signature of the testator exists as a fact. On the other hand, subscription
is the signing of the witnesses' names upon the same paper for the purpose of identification of such
paper as the will which was executed by the testator. As it involves a mental act, there would be no
means, therefore, of ascertaining by a physical examination of the will whether the witnesses had
indeed signed in the presence of the testator and of each other unless this is substantially expressed in
the attestation.
It is contended by petitioners that the aforequoted attestation clause, in contravention of the express
requirements of the third paragraph of Article 805 of the Civil Code for attestation clauses, fails to
specifically state the fact that the attesting witnesses the testator sign the will and all its pages in their
presence and that they, the witnesses, likewise signed the will and every page thereof in the presence
of the testator and of each other. We agree.
What is fairly apparent upon a careful reading of the attestation clause herein assailed is the fact that
while it recites that the testator indeed signed the will and all its pages in the presence of the three
attesting witnesses and states as well the number of pages that were used, the same does not
expressly state therein the circumstance that said witnesses subscribed their respective signatures to
the will in the presence of the testator and of each other.
The phrase "and he has signed the same and every page thereof, on the spaces provided for his
signature and on the left hand margin," obviously refers to the testator and not the instrumental
witnesses as it is immediately preceded by the words "as his Last Will and Testament." On the other
hand, although the words "in the presence of the testator and in the presence of each and all of us"
may, at first blush, appear to likewise signify and refer to the witnesses, it must, however, be interpreted
as referring only to the testator signing in the presence of the witnesses since said phrase immediately
follows the words "he has signed the same and every page thereof, on the spaces provided
for his signature and on the left hand margin." What is then clearly lacking, in the final logical analysis ,
is the statement that the witnesses signed the will and every page thereof in the presence of the testator
and of one another.
It is our considered view that the absence of that statement required by law is a fatal defect or
imperfection which must necessarily result in the disallowance of the will that is here sought to be
admitted to probate. Petitioners are correct in pointing out that the aforestated defect in the attestation
clause obviously cannot be characterized as merely involving the form of the will or the language used
therein which would warrant the application of the substantial compliance rule, as contemplated in the
pertinent provision thereon in the Civil Code, to wit:
Art. 809. 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 not proved that the will
was in fact executed and attested in substantial compliance with all the requirements
of article 805" (Emphasis supplied.)
While it may be true that the attestation clause is indeed subscribed at the end thereof and at the left
margin of each page by the three attesting witnesses, it certainly cannot be conclusively inferred
therefrom that the said witness affixed their respective signatures in the presence of the testator and of
each other since, as petitioners correctly observed, the presence of said signatures only establishes the
fact that it was indeed signed, but it does not prove that the attesting witnesses did subscribe to the will
in the presence of the testator and of each other. The execution of a will is supposed to be one act so
that where the testator and the witnesses sign on various days or occasions and in various
combinations, the will cannot be stamped with the imprimatur of effectivity. 33
We believe that the further comment of former Justice J.B.L. Reyes 34 regarding Article 809, wherein he
urged caution in the application of the substantial compliance rule therein, is correct and should be
applied in the case under consideration, as well as to future cases with similar questions:
 . . . 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 theses 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.
(Emphasis ours.)
3. We stress once more that under Article 809, the defects and imperfections must only be with respect
to the form of the attestation or the language employed therein. Such defects or imperfections would not
render a will invalid should it be proved that the will was really executed and attested in compliance with
Article 805. In this regard, however, the manner of proving the due execution and attestation has been
held to be limited to merely an examination of the will itself without resorting to evidence aliunde,
whether oral or written.
The foregoing considerations do not apply where the attestation clause totally omits the fact that the
attesting witnesses signed each and every page of the will in the presence of the testator and of each
other. 35 In such a situation, the defect is not only in the form or language of the attestation clause but
the total absence of a specific element required by Article 805 to be specifically stated in the attestation
clause of a will. That is precisely the defect complained of in the present case since there is no plausible
way by which we can read into the questioned attestation clause statement, or an implication thereof,
that the attesting witness did actually bear witness to the signing by the testator of the will and all of its
pages and that said instrumental witnesses also signed the will and every page thereof in the presence
of the testator and of one another.
Furthermore, the rule on substantial compliance in Article 809 cannot be revoked or relied on by
respondents since it presupposes that the defects in the attestation clause can be cured or supplied by
the text of the will or a consideration of matters apparent therefrom which would provide the data not
expressed in the attestation clause or from which it may necessarily be gleaned or clearly inferred that
the acts not stated in the omitted textual requirements were actually complied within the execution of the
will. In other words, defects must be remedied by intrinsic evidence supplied by the will itself.
In the case at bar, contrarily, proof of the acts required to have been performed by the attesting
witnesses can be supplied by only extrinsic evidence thereof, since an overall appreciation of the
contents of the will yields no basis whatsoever from with such facts may be plausibly deduced. What
private respondent insists on are the testimonies of his witnesses alleging that they saw the compliance
with such requirements by the instrumental witnesses, oblivious of the fact that he is thereby resorting to
extrinsic evidence to prove the same and would accordingly be doing by the indirection what in law he
cannot do directly.
4. Prior to the advent of the Civil Code on August 30, 1950, there was a divergence of views as to which
manner of interpretation should be followed in resolving issues centering on compliance with the legal
formalities required in the execution of wills. The formal requirements were at that time embodied
primarily in Section 618 of Act No. 190, the Code of Civil Procedure. Said section was later amended by
Act No. 2645, but the provisions respecting said formalities found in Act. No. 190 and the amendment
thereto were practically reproduced and adopted in the Civil Code.
One view advance the liberal or substantial compliance rule. This was first laid down in the case
of Abangan vs. Abangan, 36 where it was held 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 guarantee their truth and authenticity. Therefore, the laws on this subject should be
interpreted in such a way as to attain these primordial ends. Nonetheless, it was also emphasized that
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, hence 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. The subsequent cases of Avera vs.
Garcia, 37 Aldaba vs. Roque, 38 Unson vs. Abella, 39 Pecson vs. Coronel, 40 Fernandez vs. Vergel de
Dios, et al., 41 and Nayve vs. Mojal, et al. 42 all adhered to this position.
The other view which advocated the rule that statutes which prescribe the formalities that should be
observed in the execution of wills are mandatory in nature and are to be strictly construed was followed
in the subsequent cases of In the Matter of the Estate of Saguinsin, 43 In re Will of Andrada, 44 Uy Coque
vs. Sioca, 45 In re Estate of Neumark, 46and Sano vs. Quintana. 47
Gumban vs. Gorecho, et al., 48 provided the Court with the occasion to clarify the seemingly conflicting
decisions in the aforementioned cases. In said case of Gumban, the attestation clause had failed to
state that the witnesses signed the will and each and every page thereof on the left margin in the
presence of the testator. The will in question was disallowed, with these reasons therefor:
In support of their argument on the assignment of error above-mentioned, appellants
rely on a series of cases of this court beginning with (I)n the Matter of the (E)state of
Saguinsin ([1920], 41 Phil., 875), continuing with In re Will of Andrada [1921], 42 Phil.,
180), Uy Coque vs. Navas L. Sioca [1922], 43 Phil., 405), and In re Estate of
Neumark ([1923], 46 Phil., 841), and ending with Sano vs. Quintana ([1925], 48 Phil.,
506). Appellee counters with the citation of a series of cases beginning with Abangan
vs. Abangan ([1919], 40 Phil., 476), continuing through Aldaba vs. Roque ([1922], 43
Phil., 378), and Fernandez vs. Vergel de Dios ([1924], 46 Phil., 922), and culminating
in Nayve vs. Mojal and Aguilar ([1924], 47 Phil., 152). In its last analysis, our task is to
contrast and, if possible, conciliate the last two decisions cited by opposing counsel,
namely, those of Sano vs. Quintana, supra, and Nayve vs. Mojal and Aguilar, supra.
In the case of Sano vs. Quintana, supra, it was decided that an attestation clause
which does not recite that the witnesses signed the will and each and every page
thereof on the left margin in the presence of the testator is defective, and such a
defect annuls the will. The case of Uy Coque vs. Sioca, supra, was cited, but the case
of Nayve vs. Mojal and Aguilar, supra, was not mentioned. In contrast, is the decision
in Nayve vs. Mojal and Aguilar, supra, wherein it was held that the attestation clause
must estate the fact that the testator and the witnesses reciprocally saw the signing of
the will, for such an act cannot be proved by the mere exhibition of the will, if it is not
stated therein. It was also held that the fact that the testator and the witnesses signed
each and every page of the will can be proved also by the mere examination of the
signatures appearing on the document itself, and the omission to state such evident
facts does not invalidate the will.
It is a habit of courts to reaffirm or distinguish previous cases; seldom do they admit
inconsistency in doctrine. Yet here, unless aided impossible to reconcile the Mojal
 and Quintana decisions. They are fundamentally at variance. If we rely on one, we
affirm. If we rely on the other, we reverse.
In resolving this puzzling question of authority, three outstanding points may be
mentioned. In the first place, the Mojal, decision was concurred in by only four
members of the court, less than a majority, with two strong dissenting opinions; the
Quintana decision was concurred in by seven members of the court, a clear majority,
with one formal dissent. In the second place, the Mojal decision was promulgated in
December, 1924, while the Quintana decision was promulgated in December, 1925;
the Quintana decision was thus subsequent in point of time. And in the third place, the
Quintana decision is believed more nearly to conform to the applicable provisions of
the law.
The right to dispose of property by will is governed entirely by statute. The law of the
case is here found in section 61 of the Code of Civil Procedure as amended by Act
No. 2645, and in section 634 of the same Code, as unamended. It is in part provided
in section 61, as amended that "No will . . . shall be valid . . . unless . . .." It is further
provided in the same section that "The attestation shall state the number of sheets or
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 three witnesses, and the latter witnessed and
signed the will and all pages thereof in the presence of the testator and of each
other." Codal section 634 provides that "The will shall be disallowed in either of the
following case: 1. If not executed and attested as in this Act provided." The law not
alone carefully makes use of the imperative, but cautiously goes further and makes
use of the negative, to enforce legislative intention. It is not within the province of the
courts to disregard the legislative purpose so emphatically and clearly expressed.
We adopt and reaffirm the decision in the case of Sano vs. Quintana, supra, and, to
the extent necessary, modify the decision in the case of Nayve vs. Mojal and
Aguilar, supra. (Emphases in the original text).
But after the Gumban clarificatory pronouncement, there were decisions of the Court that once more
appeared to revive the seeming diversity of views that was earlier threshed out therein. The cases
of Quinto vs. Morata, 49Rodriguez vs. Alcala, 50 Enchevarria vs. Sarmiento, 51 and Testate Estate of
Toray 52 went the way of the ruling as restated in Gumban. But De Gala vs. Gonzales, et al., 53 Rey vs.
Cartagena, 54 De Ticson vs. De Gorostiza, 55 Sebastian vs. Panganiban, 56 Rodriguez vs. Yap, 57 Grey
vs. Fabia, 58 Leynez vs. Leynez, 59 Martir vs. Martir, 60 Alcala vs. De Villa, 61Sabado vs.
Fernandez, 62 Mendoza vs. Pilapil, 63 and Lopez vs. Liboro, 64 veered away from the strict interpretation
rule and established a trend toward an application of the liberal view.
The Code Commission, cognizant of such a conflicting welter of views and of the undeniable inclination
towards a liberal construction, recommended the codification of the substantial compliance rule, as it
believed this rule to be in accord with the modern tendency to give a liberal approach to the
interpretation of wills. Said rule thus became what is now Article 809 of the Civil Code, with this
explanation of the Code Commission:
The present law provides for only one form of executing a will, and that is, in
accordance with the formalities prescribed by Section 618 of the Code of Civil
Procedure as amended by Act No. 2645. The Supreme Court of the Philippines had
previously upheld the strict compliance with the legal formalities and had even said
that the provisions of Section 618 of the Code of Civil Procedure, as amended
regarding the contents of the attestation clause were mandatory, and non-compliance
therewith invalidated the will (Uy Coque vs. Sioca, 43 Phil. 405). These decisions
necessarily restrained the freedom of the testator in disposing of his property.
However, in recent years the Supreme Court changed its attitude and has become
more liberal in the interpretation of the formalities in the execution of wills. This liberal
view is enunciated in the cases of Rodriguez vs. Yap, G.R. No. 45924, May 18,
1939; Leynez vs. Leynez, G.R. No. 46097, October 18, 1939; Martir vs. Martir, G.R.
No. 46995, June 21, 1940; and Alcala vs. Villa, G.R. No. 47351, April 18, 1941.
In the above mentioned decisions of our Supreme Court, it has practically gone back
to the original provisions of Section 618 of the Code of Civil Procedure before its
amendment by Act No. 2645 in the year 1916. To turn this attitude into a legislative
declaration and to attain the main objective of the proposed Code in the liberalization
of the manner of executing wills, article 829 of the Project is recommended, which
reads:
"Art. 829. 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 829." 65
The so-called liberal rule, the Court said in Gil vs. Murciano, 66 "does not offer any puzzle or difficulty,
nor does it open the door to serious consequences. The later decisions do tell us when and where to
stop; they draw the dividing line with precision. They do not allow evidence aliunde to fill a void in any
part of the document or supply missing details that should appear in the will itself. They only permit a
probe into the will, an exploration into its confines, to ascertain its meaning or to determine the
existence or absence of the requisite formalities of law. This clear, sharp limitation eliminates
uncertainty and ought to banish any fear of dire results."
It may thus be stated that the rule, as it now stands, is that omissions 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. 67
WHEREFORE, the petition is hereby GRANTED and the impugned decision of respondent court is
hereby REVERSED and SET ASIDE. The court a quo is accordingly directed to forthwith DISMISS its
Special Proceeding No. 3899-R (Petition for the Probate of the Last Will and Testament of Mateo
Caballero) and to REVIVE Special Proceeding No. 3965-R (In the matter of the Intestate Estate of
Mateo Caballero) as an active case and thereafter duly proceed with the settlement of the estate of the
said decedent.
SO ORDERED.
 EN BANC WHEREFORE, the decision appealed from is affirmed, with costs.

G.R. No. L-20357 November 25, 1967 Makalintal, Bengzon, J.P., Zaldivar, Sanchez, Castro, Angeles and Fernando, JJ., concur.
Concepcion, C.J., and Reyes, J.B.L., J., took no part.
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, oppositors-appellees.

E. Debuque for petitioner-appellant.

E. L. Segovia for oppositors-appellees.

DIZON, J.:

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.
 FIRST DIVISION
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.
EN BANC
[G.R. No. L-26615. April 30, 1970.]
REV. FATHER LUCIO V. GARCIA, ANTONIO JESUS DE PRAGA, MARIA NATIVIDAD DE JESUS
AND DR. JAIME ROSARIO, Petitioners, v. HON. CONRADO M. VASQUEZ, as Judge of the Court
of First Instance of Manila, Branch and CONSUELO GONZALES VDA. DE
PRECILLA, Respondents.
[G.R. No. L-26884. April 30, 1970.]
REV. FATHER LUCIO V. GARCIA, ANTONIO JESUS DE PRAGA, MARIA NATIVIDAD DE JESUS
AND DR. JAIME ROSARIO, Petitioners, v. HON. CONRADO M. VASQUEZ, as Judge of the Court
of First Instance of Manila, Branch V, REGISTER OF DEEDS OF MANILA, and CONSUELO
GONZALES VDA. DE PRECILLA, Respondents.
[G.R. No. L-27200. April 30, 1970.]
TESTATE ESTATE OF GLICERIA A. DEL ROSARIO, deceased CONSUELO S. GONZALES VDA.
DE PRECILLA, petitioner administratrix, v. SEVERINA NARCISO, ROSA NARCISO, JOSEFINA
NARCISO, VICENTE MAURICIO, DELFIN MAURICIO, REMEDIOS NARCISO, ENCARNACION,
NARCISO, MARIA NARCISO, EDUARDO NARCISO, FR. LUCIO V. GARCIA, ANTONIO JESUS DE
PRAGA, MARIA NATIVIDAD DE JESUS, DR. JAIME DEL ROSARIO, ET AL., NATIVIDAD DEL
ROSARIO-SARMIENTO and PASCUALA NARCISO-MANAHAN, Oppositors-Appellants.
Antonio Enrile Inton for petitioner Rev. Father Lucio V. Garcia.
Pedro V. Garcia for petitioner Antonio Jesus de Praga, Et. Al.
Leandro Sevilla & Ramon C. Aquino and Melquiades M. Virata, Jr. for respondent Consuelo S.
Gonzales Vda. de Precilla.
Lorenzo C. Gella for respondent Register of Deeds of Manila. Leandro Sevilla & Ramon C.
Aquino for petitioner administratrix.
Castro, Makalintal & Associates for oppositors-appellants Encarnacion Narciso, Et. Al.
Pedro Garcia for oppositors-appellants Dr. Jaime Rosario, Et. Al.
Antonio Enrile Inton for oppositors-appellants Fr. Lucio V. Garcia and Antonio Jesus de Praga.
Salonga, Ordoez, Yap, Sicat & Associates for oppositors-appellants Severina Narciso, Et. Al.
George G. Arbolario and Sixto R. Reyes & Vicente Redor for oppositors-appellants Natividad del
Rosario Sarmiento, Et. Al.
SYLLABUS
1. CIVIL LAW; SUCCESSION, WILLS; PROBATE OF WILLS; GROUND FOR DISALLOWANCE;
TESTATRIXS DEFECTIVE EYESIGHT AS UNABLING HER TO READ THE PROVISIONS OF LATER
WILL. The declarations in court of the opthalmologist as to the condition of the testatrixs eyesight
fully establish the fact that her vision remained mainly for viewing distant objects and not for reading
print; that she was, at the time of the execution of the second will on December 29, 1960, incapable of
reading and could not have read the provisions of the will supposedly signed by her.
2. ID.; ID.; ID.; ID.; ID.; IRREGULARITIES IN THE EXECUTION OF THE WILL; CASE AT BAR. Upon
its face, the testamentary provisions, the attestation clause and acknowledgment were crammed
together into a single sheet of paper, apparently to save on space. Plainly, the testament was not
prepared with any regard for the defective vision of Da. Gliceria, the typographical errors remained
uncorrected thereby indicating that the execution thereof must have been characterized by haste. It is
difficult to understand that so important a document containing the final disposition of ones worldly
possessions should be embodied in an informal and untidy written instrument; or that the glaring
spelling errors should have escaped her notice if she had actually retained the ability to read the
purported will and had done so.
3. ID.; ID.; ID.; EXECUTION OF WILLS; REQUISITES FOR VALIDITY; ART. 808, NEW CIVIL CODE
READING OF THE WILL TWICE TO A BLIND TESTATOR; PURPOSE. The rationale behind the
requirement of reading the will to the testator if he is blind or incapable of reading the will himself 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.
4. ID.; ID.; ID.; ID.; ID.; ID.; NOT COMPLIED WITH IN INSTANT CASE. Where as in the 1960 will
there is nothing in the record to show that the requisites of Art. 808 of the Civil Code of the Philippines
that "if the testator is blind, the will shall be read to him twice," have not been complied with, the said
1960 will suffer from infirmity that affects its due execution.
5. REMEDIAL LAW; SETTLEMENT OF ESTATE OF DECEASED PERSONS; ADMINISTRATORS;
GROUNDS FOR REMOVAL; ACQUISITION OF INTEREST ADVERSE TO THAT OF THE ESTATE
MAKES THE ADMINISTRATOR UNSUITABLE TO DISCHARGE THE TRUST; CASE AT BAR.
Considering that the alleged deed of sale was executed when Gliceria del Rosario was already
practically blind and that the consideration given seems unconscionably small for the properties, there
was likelihood that a case for annulment might be filed against the estate or heirs of Alfonso Precilla.
And the administratrix being the widow and heir of the alleged transferee, cannot be expected to sue
herself in an action to recover property that may turn out to belong to the estate. This, plus her conduct
in securing new copies of the owners duplicate of titles without the courts knowledge and authority and
having the contract bind the land through issuance of new titles in her husbands name, cannot but
expose her to the charge of unfitness or unsuitability to discharge the trust, justifying her removal from
the administration of the estate.
6. REMEDIAL LAW; NOTICE OF LIS PENDENS; ACTION MUST AFFECT "THE TITLE OR THE
RIGHT OF POSSESSION OF REAL PROPERTY." On the matter of lis pendens, the provisions of
the Rules of Court are clear: notice of the pendency of an action may be recorded in the office of the
register of deeds of the province in which the property is situated, if the action affects "the title or the
right of possession of (such) real property."
7. ID.; ID.; ID.; NOT APPLICABLE TO INSTANT CASE. The issue in controversy here is simply the
fitness or unfitness of said special administratrix to continue holding the trust, it does not involve or
affect at all the title to, or possession of, the properties covered by TCT Nos. 81735, 81736 and 81737.
Clearly, the pendency of such case (L-26615) is not an action that can properly be annotated in the
record of the titles to the properties.
 DECISION
REYES, J.B.L., J.:
G.R. No. L-27200 is an appeal from the order of the Court of First Instance of Manila (in Sp. Proc. No.
62618) admitting to probate the alleged last will an, testament of the late Gliceria Avelino del Rosario
dated 29 December 1960. G.R. Nos. L-26615 and L-2684 are separate petitions for mandamus filed by
certain alleged heirs of said decedent seeking (1) to compel the probate court to remove Consuelo S.
Gonzales-Precilla as special administratrix of the estate, for conflict of interest, to appoint a new one in
her stead; and (2) to order the Register of Deeds of Manila to annotate notice of lis pendens in TCT
Nos. 81735, 81736 ,and 81737, registered in the name of Alfonso Precilla, married to Consuelo
Gonzales y Narciso, and said to be properly belonging to the estate of the deceased Gliceria A. del
Rosario.
Insofar as pertinent to the issues involved herein, the facts of these cases may be stated as follows:
virtual 1aw library
Gliceria Avelino del Rosario died unmarried in the City of Manila on 2 September 1965, leaving no
descendents, ascendants, brother or sister. At the time of her death, she was said to be 90 years old
more or less, and possessed of an estate consisting mostly of real properties.
On 17 September 1965, Consuelo S. Gonzales Vda. de Precilla, a niece of the deceased, petitioned the
Court of First Instance of Manila for probate of the alleged last will and testament of Gliceria A. del
Rosario, executed on 29 December 1960, and for her appointment as special administratrix of the
latters estate, said to be valued at about P100,000.00, pending the appointment of a regular
administrator thereof.
The petition was opposed separately by several groups of alleged heirs: (1) Rev. Fr. Lucio V. Garcia, a
legatee named in an earlier will executed by Gliceria A. del Rosario on 9 June 1956; (2) Jaime Rosario
and children, relatives and legatees in both the 1956 and 1960 wills; Antonio Jesus de Praga and Marta
Natividad de Jesus, wards of the deceased and legatees in the 1956 and 1960 wills; (3) Remedios,
Encarnacion, and Eduardo, all surnamed Narciso; (4) Natividad del Rosario-Sarmiento; (5) Maria
Narciso; (6) Pascuala Narciso de Manahan; (7) Severina, Rosa and Josefa, surnamed Narciso, and
Vicente and Delfin, surnamed Mauricio, the latter five groups of persons all claiming to be relatives of
Doa Gliceria within the fifth civil degree. The oppositions invariably charged that the instrument
executed in 1960 was not intended by the deceased to be her true will; that the signatures of the
deceased appearing in the will was procured through undue and improper pressure and influence the
part of the beneficiaries and/or other persons; that the testatrix did not know the object of her bounty;
that the instrument itself reveals irregularities in its execution, and that the formalities required by law for
such execution have not been complied with.
Oppositor Lucio V. Garcia, who also presented for probate the 1956 will of the deceased, joined the
group of Dr. Jaime Rosario in registering opposition to the appointment of petitioner Consuelo S.
Gonzales Vda. de Precilla as special administratrix, on the ground that the latter possesses interest
adverse to the estate. After the parties were duly heard, the probate court, in its order of 2 October
1965, granted petitioners prayer and appointed her special administratrix of the estate upon a bond for
P30,000.00. The order was premised on the fact the petitioner was managing the properties belonging
to the estate even during the lifetime of the deceased, and to appoint another person as administrator or
co administrator at that stage of the proceeding would only result in further confusion and difficulties.
On 30 September 1965, oppositors Jaime Rosario, Et. Al. filed with the probate court an urgent motion
to require the Hongkong & Shanghai Bank to report all withdrawals made against the funds of the
deceased after 2 September 1965. The court denied this motion on 22 October 1965 for being
premature, it being unaware that such deposit in the name of the deceased existed. 1
On 14 December 1965, the same sets of oppositors, Dr. Jaime Rosario and children, Antonio Jesus de
Praga, Natividad de Jesus and Fr. Lucio V. Garcia, petitioned the court for the immediate removal of the
special administratrix. It was their claim that the special administratrix and her deceased husband,
Alfonso Precilla, 2 had caused Gliceria A. del Rosario to execute a simulated and fraudulent deed of
absolute sale dated 10 January 1961 allegedly conveying unto said spouses for the paltry sum of
P30,000.00 ownership of 3 parcels of land and the improvements thereon located on Quiapo and San
Nicolas, Manila, with a total assessed value of P334,050.00. Oppositors contended that since it is the
duty of the administrator to protect and conserve the properties of the estate, and it may become
necessary that, an action for the annulment of the deed of sale land for recovery of the aforementioned
parcels of land be filed against the special administratrix, as wife and heir of Alfonso Precilla, the
removal of the said administratrix was imperative.
On 17 December 1965, the same oppositors prayed the court for an order directing the Special
Administratrix to deposit with the Clerk of Court all certificates of title belonging to the estate. It was
alleged that on 22 October 1965, or after her appointment, petitioner Consuelo Gonzales Vda. de
Precilla, in her capacity as special administratrix of the estate of the deceased Gliceria A. del Rosario,
filed with Branch IV of the Court of First Instance of Manila a motion for the issuance of new copies of
the owners duplicates of certain certificates of title in the name of Gliceria del Rosario, supposedly
needed by her "in the preparation of the inventory" of the properties constituting the estate. The motion
having been granted, new copies of the owners duplicates of certificates appearing the name of
Gliceria del Rosario (among which were TCT Nos. 66201, 66202 and 66204) were issued on 15
November 1965. On 8 December 1965, according to the oppositors, the same special administratrix
presented to the Register of Deeds the deed of sale involving properties covered by TCT Nos. 66201,
66202 and 66204 supposedly executed by Gliceria del Rosario on 10 January 1961 in favor of Alfonso
Precilla, and, in consequence, said certificates of title were cancelled and new certificates (Nos. 81735,
81736 and 81737) were issued in the name of Alfonso Precilla, married to Consuelo S. Gonzales y
Narciso.
On 25 August 1966, the Court issued an order admitting to probate the 1960 will of Gliceria A. del
Rosario (Exhibit "D"). In declaring the due execution of the will, the probate court took note that no
evidence had been presented to establish that the testatrix was not of sound mind when the will was
executed; that the fact that she had prepared an earlier will did not, prevent her from executing another
one thereafter; that the fact that the 1956 will consisted of 12 pages whereas the 1960 testament was
contained in one page does not render the latter invalid; that, the erasures and alterations in the
instrument were insignificant to warrant rejection; that the inconsistencies in the testimonies of the
instrumental witnesses which were noted by the oppositors are even indicative of their truthfulness. The
probate court, also considering that petitioner had already shown capacity to administer the properties
of the estate and that from the provisions of the will she stands as the person most concerned and
interested therein, appointed said petitioner regular administratrix with a bond for P50,000.00. From this
order all the oppositors appealed, the case being docketed in this Court as G.R. No. L-27200.
Then, on 13 September 1966, the probate court resolved the oppositors motion of 14 December 1965
for the removal of the then special administratrix, as follows:
"It would seem that the main purpose of the motion to remove the special administratrix and to appoint
another one in her stead, is in order that an action may be filed against the special administratrix for the
annulment of the deed of sale executed by the decedent on January 10, 1961. Under existing
documents, the properties sold pursuant to the said deed of absolute sale no longer forms part of the
estate. The alleged conflict of interest is accordingly not between different claimants of the same estate.
If it is desired by the movants that an action be filed by them to annul the aforesaid deed absolute sale,
it is not necessary that the special administratrix be removed and that another one be appointed to file
such action. Such a course of action would only produce confusion and difficulties in the settlement of
the estate. The movants may file the aforesaid proceedings, preferably in an independent action, to
secure the nullity of the deed of absolute even without leave of this court:"
As regard the motion of 17 December 1965 asking for the deposit in court of the titles in the name of the
decedent, the same was also denied, for the reason that if the movants were referring to the old titles,
they could no longer be produced, and if they meant the new duplicate copies thereof that were issued
at the instance of the special administratrix, there would be no necessity therefor, because they were
already cancelled and other certificates were issued in the name of Alfonso Precilla. This order
precipitated the oppositors filing in this Court of a petition for mandamus (G.R. No. L-26615, Rev. Fr.
Lucio V. Garcia, Et. Al. v. Hon. Judge Conrado M. Vasquez, Et. Al.), which was given due course on 6
October 1966.
On 15 December 1965, with that motion for removal pending in the court, the oppositors requested the
Register of Deeds of Manila to annotate a notice of lis pendens in the records of TCT Nos. 81735,
81736, and 81737 in the name of Alfonso Precilla. And when said official refused to do so, they applied
to the probate court (in Sp. Proc. No. 62618) for an order to compel the Register of Deeds to annotate a
lis pendens notice in the aforementioned titles contending that the matter of removal and appointment of
the administratrix, involving TCT Nos. 81735, 81736, and 81737, was already before the Supreme
Court. Upon denial of this motion on 12 November 1966, oppositors filed another mandamus action, this
time against the probate court and the Register of Deeds. The case was docketed and given due course
in this Court as G.R. No. L-26864.
Foremost of the questions to be determined here concerns the correctness of the order allowing the
probate of the 1960 will.
The records of the probate proceeding fully establish the fact that the testatrix, Gliceria A. del Rosario,
during her lifetime, executed two wills: one on 9 June 1956 consisting of 12 pages and written in
Spanish, a language that she knew and spoke, witnessed by Messrs. Antonio Cabrera, Jesus Y. Ayala
and Valentin Marquez, and acknowledged before notary public Jose Ayala; and another dated 29
December 1960, consisting of 1 page and written in Tagalog, witnessed by Messrs. Vicente Rosales,
Francisco Decena, and Francisco Lopez and acknowledged before notary public Remigio M. Tividad.
Called to testify on the due execution of the 1960 will, instrumental witnesses Decena, Lopez and
Rosales uniformly declared that they were individually requested by Alfonso Precilla (the late husband
of petitioner special administratrix) to witness the execution of the last will of Doa Gliceria A. del
Rosario; that they arrived at the house of the old lady at No. 2074 Azcarraga, Manila, one after the
other, in the afternoon of 29 December 1960; that the testatrix at the time was apparently of clear and
sound mind, although she was being aided by Precilla when she walked; 3 that the will, which was
already prepared, was first read "silently" by the testatrix herself before she signed it; 4 that he three
witnesses thereafter signed the will in the presence of the testatrix and the notary public and of one
another. There is also testimony that after the testatrix and the witnesses to the will acknowledged the
instrument to be their voluntary act and deed, the notary public asked for their respective residence
certificates which were handed to him by Alfonso Precilla, clipped together; 5 that after comparing them
with the numbers already written on the will, the notary public filled in the blanks in the instrument with
the date, 29 January 1960, before he affixed his signature and seal thereto. 6 They also testified that on
that occasion no pressure or influence has been exerted by any person upon the testatrix to execute the
will.
Of course, the interest and active participation of Alfonso Precilla in the signing of this 1960 will are
evident from the records. The will appeared to have been prepared by one who is not conversant with
the spelling of Tagalog words, and it has been shown that Alfonso Precilla is a Cebuano who speaks
Tagalog with a Visayan accent. 7 The witnesses to the will, two of whom are fellow Visayans, 8
admitted their relationship or closeness to Precilla. 9 It was Precilla who instructed them to go to the
house of Gliceria del Rosario on 29 December 1960 to witness an important document, 10 and who
took their residence certificates from them a few days before the will was signed. 11 Precilla had met
the notary public and witnesses Rosales and Lopez at the door of the residence of the old woman; he
ushered them to the room at the second floor where the signing of the document took place; 12 then he
fetched witness Decena from the latters haberdashery shop a few doors away and brought him to, the
house the testatrix. 13 And when the will was actually executed Precilla was present. 14
The oppositors-appellants in the present case, however, challenging the correctness of the probate
courts ruling, maintain that on 29 December 1960 the eyesight of Gliceria del Rosario was so poor and
defective that she could not have read the provisions of the will, contrary to the testimonies of witnesses
Decena, Lopez and Rosales.
On this point, we find the declarations in court of Dr. Jesus V. Tamesis very material and illuminating.
Said ophthalmologist, whose expertise was admitted by both parties, testified, among other things, that
when Doa Gliceria del Rosario saw him for consultation on 11 March 1960 he found her left eye to
have cataract (opaque lens), 15 and that it was "above normal in pressure", denoting a possible
glaucoma, a disease that leads to blindness 16 As to the conditions of her right eye, Dr. Tamesis
declared:
"Q But is there anything here in the entry appearing in the other documents Exhibits 3-B, 3-C and 3-D
from which you could inform the court as to the condition of the vision of the patient as to the right eve?
"A Under date of August 30, 1960, is the record of refraction. that is setting of glass by myself which
showed that the right eye with my prescription of glasses had a vision of 2 over 60 (20/60) and for the
left eye with her correction 20 over 300 (20/300).
"Q In laymans language, Doctor, what is the significance of that notation that the right had a degree of
20 over 60 (20/60)?
"A It meant that eye at least would be able to recognize objects or persons at a minimum distance of
twenty feet.
"Q But would that grade enable the patient to read print?
"A Apparently that is only a record for distance vision, for distance sight, not for near."
(pages 20-21, t.s.n., hearing of 23 March 1966)
The records also show that although Dr. Tamesis operated of the left eye of the decedent at the
Lourdes Hospital on 8 August 1960; as of 23 August 1960, inspite of the glasses her vision was only
"counting fingers," 17 at five feet. The cross-examination of the doctor further elicited the following
responses:
"Q After she was discharged from the hospital you prescribed lenses for her, or glasses?
"A After her discharge from the hospital, she was coming to my clinic for further examination and then
sometime later glasses were prescribed.
x x x word "and" had to be written by the symbol" &", apparently to save on space. Plainly, the testament was
"Q And the glasses prescribed by you enabled her to read, Doctor?
"A As far as my record is concerned, with the glasses for the left eye which I prescribed the eye
which I operated she could see only forms but not read. That is on the left eye.
"Q How about the right eye?
"A The same, although the vision on the right eye is even better than the left eye." (pages 34. 85. t.s.n.,
hearing of 23 March 1966).
Then, confronted with a medical certificate (Exhibit H) issued by him on 29 November 1965 certifying
that Gliceria del Rosario was provided with aphakic lenses and "had been under medical supervision up
to 1963 with apparently good vision", the doctor had this to say:
"Q When yon said that she had apparently good vision you mean that she was able to read?
"A No, not necessarily, only able to go around, take care of herself and see. This I can tell you, this
report was made on pure recollections and I recall she was using her glasses although I recall also that
we have to give her medicines to improve her vision, some medicines to improve her identification some
more.
x x x hers.
"Q What about the vision in the right eve, was that corrected by the glasses?
"A Yes, with the new prescription which I issued on 80 August 1960. It is in the clinical record.
"Q The vision in the right eye was corrected?
"A Yes That is the vision for distant objects."
(pages 38, 39, 40. t.s.n., hearing of 23 March 1966).
The foregoing testimony of the ophthalmologist who treated the deceased and, therefore, has first hand
knowledge of the actual condition of her eyesight from August, 1960 up to 1963, fully establish the fact
that notwithstanding the operation and removal of the cataract in her left eye and her being fitted with
aphakic lens (used by cataract patients), her vision remained mainly for viewing distant objects and not
for reading print. Thus, the conclusion is inescapable that with the condition of her eyesight in August,
1960, and there is no evidence that it had improved by 29 December 1960, Gliceria del Rosario was
incapable f reading, and could not have read the provisions of the will supposedly signed by her on 29
December 1960. It is worth noting that the instrumental witnesses stated that she read the instrument
"silently" (t.s.n., pages 164-165). which is a conclusion and not a fact.
Against the background of defective eyesight of the alleged testatrix, the appearance of the will, Exhibit
"D", acquires striking significance. Upon its face, the testamentary provisions, the attestation clause and
acknowledgment were crammed together into a single sheet of paper, to much so that the words had to
be written very close on the top, bottom and two sides of the paper, leaving no margin whatsoever; the
not prepared with any regard for the defective vision of Doa Gliceria. Further, typographical errors like
"HULINH" for "HULING" (last), "Alfonsa" ;or "Alfonso", "MERCRDRS" for MERCEDES", "instrumental"
for "Instrumental", and "acknowledged" for "acknowledge, remained uncorrected, thereby indicating
that execution thereof must have been characterized by haste. It is difficult to understand that so
important a document containing the final disposition of ones worldly possessions should be embodied
in an informal and untidily written instrument; or that the glaring spelling errors should have escaped her
notice if she had actually retained the ability to read the purported will and had done so. The record is
thus convincing that the supposed testatrix could not have physically read or understood the alleged
testament, Exhibit "D", and that its admission to probate was erroneous and should be reversed.
That Doa Gliceria should be able to greet her guests on her birthday, arrange flowers and attend to
kitchen tasks shortly prior to the alleged execution of the testament Exhibit "D", as appears from the
photographs, Exhibits "E" to "E-1", in no way proves; that she was able to read a closely typed page,
since the acts shown do not require vision at close range. It must be remembered that with the natural
lenses removed, her eyes had lost the power of adjustment to near vision, the substituted glass lenses
being rigid and uncontrollable by her. Neither is the signing of checks (Exhibits "G" to "G-3") by her
indicative of ability to see at normal reading distances. Writing or signing of ones name, when
sufficiently practiced, becomes automatic, so that one need only to have a rough indication of the place
where the signature is to be affixed in order to be able to write it. Indeed, a close examination of the
checks, amplified in the photograph, Exhibit "O", et seq., reinforces the contention of oppositors that the
alleged testatrix could not see at normal reading distance: the signatures in the checks are written far
above the printed base, lines, and the names of the payees as well as the amounts written do not
appear to be in the handwriting of the alleged testatrix, being in a much firmer and more fluid hand than
Thus, for all intents and purpose of the rules on probate, the deceased Gliceria del Rosario was, as
appellant oppositors contend, not unlike a blind testator, and the due execution of her will would have
required observance of the provisions of Article 808 of the Civil Code.
"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."
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), 18 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. That the aim of the law is to
insure that the dispositions of the will are properly communicated to and understood by the handicapped
testator, thus making them truly reflective of his desire, is evidenced by the requirement that the will
should be read to the latter, not only once but twice, by two different persons, and that the witnesses
have to act within the range of his (the testators) other senses. 19
In connection with the will here in question, there is nothing in the records to show that the above
requisites have been complied with. Clearly, as already stated, the 1960 will sought to be probated
suffers from infirmity that affects its due execution.
We also find merit in the complaint of oppositors Lucio V. Garcia, Et Al., against the denial by the
probate court of their petition for the removal of Consuelo Gonzales Vda. de Precilla as special
administratrix of the estate of the deceased Doa Gliceria (Petition, G.R. No. L-26615, Annex "B").
The oppositors petition was based allegedly on the existence in the special administratrix of an interest
adverse to that of the estate. It was their contention that through fraud her husband had caused the
deceased Gliceria del Rosario to execute a deed of sale, dated 10 January 1961, by virtue of which the
latter purportedly conveyed unto said Alfonso D. Precilla, married to Consuelo Gonzales y Narciso, the
ownership of 3 parcels of land and the improvements thereon, assessed at P334,050.00, for the sum of
P30,000.00.
In denying the petition, the probate court, in its order of 13 September 1966 (Annex "P", Petition)
reasoned out that since the properties were already sold no longer form part of the estate. The conflict
of interest would not be between the estate and third parties, but among the different claimants of said
properties, in which case, according to the court, the participation of the special administratrix in the
action for annulment that may be brought would not be necessary.
The error in this line of reasoning lies in the fact that what was being questioned was precisely the
validity of the conveyance or sale of the properties. In short, if proper, the action for annulment would
have to be undertaken on behalf of the estate by the special administratrix, affecting as it does the
property or rights of the deceased. 20 For the rule is that only where there is no special proceeding for
the settlement of the estate of the deceased may the legal heirs commence an action arising out of a
right belonging to their ancestor. 21
the pendency of an action may be recorded in the office of the register of deeds of the province in which
the property is situated, if the action affects "the title or the right of possession of (such) real property."
23 In the case at bar, the pending action which oppositors seek to annotate in the records of TCT Nos.
81735, 81736, and 81737 is the mandamus proceeding filed in this Court (G.R. No. L-26615). As
previously discussed in this opinion, however, that case is concerned merely with the correctness of the
denial by the probate court of the motion for the removal of Consuelo Gonzales Vda. de Precilla as
special administratrix of the estate of the late Gliceria del Rosario. In short, the issue in controversy
there is simply the fitness or unfitness of said special administratrix to continue holding the trust; it does
not involve or affect at all the title to, or possession of, the properties covered by said TCT Nos. 81735,
81736 and 81737. Clearly, the pendency of such case (L-26615) is not an action that can properly be
annotated in the record of the titles to the properties.
FOR THE FOREGOING REASONS, the order of the court below allowing to probate the alleged 1960
will of Gliceria A. del Rosario is hereby reversed and set aside. The petition in G.R. No. L-26615 being
meritorious, the appealed order is set aside and the court below is ordered to remove the administratrix,
Consuelo Gonzales Vda. de Precilla, and appoint one of the heirs intestate of the deceased Doa
Gliceria Avelino del Rosario as special administrator for the purpose of instituting action on behalf of her
estate to recover the properties allegedly sold by her to the late Alfonso D. Precilla. And in Case G.R.
No. L-26864, petition is dismissed. No costs.

There is no doubt that to settle the question of the due execution and validity of the deed of sale, an
ordinary and separate action would have to be instituted, the matter not falling within the competence of
the probate court. 22 Considering the facts then before it, i.e., the alleged deed of sale having been
executed by Gliceria del Rosario on 10 January 1961, when she was already practically blind; and that
the consideration of P30,000.00 seems to be unconscionably small for properties with a total assessed
value of P334,050.00, there was likelihood that a case for annulment might indeed be filed against the
estate or heirs of Alfonso Precilla. And the administratrix, being the widow and heir of the alleged
transferee, cannot be expected to sue herself in an action to recover property that may turn out to
belong to the estate. 22 Not only this, but the conduct of the special administratrix in securing new
copies of the owners duplicates of TCT Nos. 66201, 66202, and 66204, without the courts knowledge
or authority, and on the pretext that she needed them in the preparation of the inventory of the estate,
when she must have already known by then that the properties covered therein were already
"conveyed" to her husband by the deceased, being the latters successor, and having the contract bind
the land through issuance of new titles in her husbands name cannot but expose her to the charge of
unfitness or unsuitableness to discharge the trust, justifying her removal from the administration of the
estate.

With respect to the orders of the court a quo denying (1) the oppositors motion to require the Hongkong
and Shanghai Bank to report all withdrawals made against the funds of the deceased after 2 September
1965 and (2) the motion for annotation of a lis pendens notice on TCT Nos. 81735, 81736 and 81737,
the same are to be affirmed.

The probate court pointed out in its order of 22 October 1965 (Annex "H") that it could not have taken
action on the complaint against the alleged withdrawals from the bank deposits of the deceased,
because as of that time the court had not yet been apprised that such deposits exist. Furthermore, as
explained by the special administratrix in her pleading of 30 October 1965, the withdrawals referred to
by the oppositors could be those covered by checks issued in the name of Gliceria del Rosario during
her lifetime but cleared only after her death. That explanation, which not only appears plausible but has
not been rebutted by the petitioners-oppositors, negates any charge of grave abuse in connection with
the issuance of the order here in question.

On the matter of lis pendens (G.R. No. L-26864), the provisions of the Rules of Court are clear: notice of
 FIRST DIVISION
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.
BELLOSILLO, J.:
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.
 SECOND DIVISION
G.R. No. 106720 September 15, 1994
SPOUSES ROBERTO AND THELMA AJERO, petitioners,
vs.
THE COURT OF APPEALS AND CLEMENTE SAND, respondents.
Miguel D. Larida for petitioners.
Montilla Law Office for private respondent.
PUNO, J.:
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
the characterof 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.
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.

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.
 FIRST DIVISION
G.R. No. L-40207 September 28, 1984
ROSA K. KALAW, petitioner,
vs.
HON. JUDGE BENJAMIN RELOVA, Presiding Judge of the CFI of Batangas, Branch VI, Lipa City,
and GREGORIO K. KALAW, respondents.
Leandro H. Fernandez for petitioner.
Antonio Quintos and Jose M. Yacat for respondents.
MELENCIO-HERRERA, J.:
On September 1, 1971, private respondent GREGORIO K. KALAW, claiming to be the sole heir of his
deceased sister, Natividad K. Kalaw, filed a petition before the Court of First Instance of Batangas,
Branch VI, Lipa City, for the probate of her holographic Will executed on December 24, 1968.
The holographic Will reads in full as follows:
My Last will and Testament
In the name of God, Amen.
I Natividad K. Kalaw Filipino 63years of age, single, and a resident of Lipa City, being of sound and
disposing mind and memory, do hereby declare thus to be my last will and testament.
1. It is my will that I'll be burried in the cemetery of the catholic church of Lipa City. In accordance with
the rights of said Church, and that my executrix hereinafter named provide and erect at the expose of
my state a suitable monument to perpetuate my memory.
xxx xxx xxx
The holographic Will, as first written, named ROSA K. Kalaw, a sister of the testatrix as her sole heir.
Hence, on November 10, 1971, petitioner ROSA K. Kalaw opposed probate alleging, in substance, that
the holographic Will contained alterations, corrections, and insertions without the proper authentication
by the full signature of the testatrix as required by Article 814 of the Civil Code reading:
Art. 814. In case of any insertion, cancellation, erasure or alteration in a holographic
will the testator must authenticate the same by his full signature.
ROSA's position was that the holographic Will, as first written, should be given effect and probated so
that she could be the sole heir thereunder.
After trial, respondent Judge denied probate in an Order, dated September 3, 197 3, reading in part:
The document Exhibit "C" was submitted to the National Bureau of Investigation for
examination. The NBI reported that the handwriting, the signature, the insertions
and/or additions and the initial were made by one and the same person.
Consequently, Exhibit "C" was the handwriting of the decedent, Natividad K. Kalaw.
The only question is whether the win, Exhibit 'C', should be admitted to probate
although the alterations and/or insertions or additions above-mentioned were not
authenticated by the full signature of the testatrix pursuant to Art. 814 of the Civil
Code. The petitioner contends that the oppositors are estopped to assert the
provision of Art. 814 on the ground that they themselves agreed thru their counsel to
submit the Document to the NBI FOR EXAMINATIONS. This is untenable. The
parties did not agree, nor was it impliedly understood, that the oppositors would be in
estoppel.
The Court finds, therefore, that the provision of Article 814 of the Civil Code is
applicable to Exhibit "C". Finding the insertions, alterations and/or additions in Exhibit
"C" not to be authenticated by the full signature of the testatrix Natividad K. Kalaw, the
Court will deny the admission to probate of Exhibit "C".
WHEREFORE, the petition to probate Exhibit "C" as the holographic will of Natividad
K. Kalaw is hereby denied.
SO ORDERED.
From that Order, GREGORIO moved for reconsideration arguing that since the alterations and/or
insertions were the testatrix, the denial to probate of her holographic Will would be contrary to her right
of testamentary disposition. Reconsideration was denied in an Order, dated November 2, 1973, on the
ground that "Article 814 of the Civil Code being , clear and explicit, (it) requires no necessity for
interpretation."
From that Order, dated September 3, 1973, denying probate, and the Order dated November 2, 1973
denying reconsideration, ROSA filed this Petition for Review on certiorari on the sole legal question of
whether or not the original unaltered text after subsequent alterations and insertions were voided by the
Trial Court for lack of authentication by the full signature of the testatrix, should be probated or not, with
her as sole heir.
Ordinarily, when a number of erasures, corrections, and interlineations made by the testator in a
holographic Will litem not been noted under his signature, ... the Will is not thereby invalidated as a
whole, but at most only as respects the particular words erased, corrected or interlined.1 Manresa gave
an Identical commentary when he said "la omision de la salvedad no anula el testamento, segun la
regla de jurisprudencia establecida en la sentencia de 4 de Abril de 1895." 2
However, when as in this case, the holographic Will in dispute had only one substantial provision, which
was altered by substituting the original heir with another, but which alteration did not carry the requisite
of full authentication by the full signature of the testator, the effect must be that the entire Will is voided
or revoked for the simple reason that nothing remains in the Will after that which could remain valid. To
state that the Will as first written should be given efficacy is to disregard the seeming change of mind of
the testatrix. But that change of mind can neither be given effect because she failed to authenticate it in
the manner required by law by affixing her full signature,
The ruling in Velasco, supra, must be held confined to such insertions, cancellations, erasures or
alterations in a holographic Will, which affect only the efficacy of the altered words themselves but not
the essence and validity of the Will itself. As it is, with the erasures, cancellations and alterations made
by the testatrix herein, her real intention cannot be determined with certitude. As Manresa had stated in
his commentary on Article 688 of the Spanish Civil Code, whence Article 814 of the new Civil Code was
derived:
... No infringe lo dispuesto en este articulo del Codigo (el 688) la sentencia que no
declara la nulidad de un testamento olografo que contenga palabras tachadas,
enmendadas o entre renglones no salvadas por el testador bajo su firnia segun
previene el parrafo tercero del mismo, porque, en realidad, tal omision solo puede
afectar a la validez o eficacia de tales palabras, y nunca al testamento mismo, ya por
estar esa disposicion en parrafo aparte de aquel que determine las condiciones
necesarias para la validez del testamento olografo, ya porque, de admitir lo contrario,
se Ilegaria al absurdo de que pequefias enmiendas no salvadas, que en nada
afectasen a la parte esencial y respectiva del testamento, vinieran a anular este, y ya
porque el precepto contenido en dicho parrafo ha de entenderse en perfecta armonia
y congruencia con el art. 26 de la ley del Notariado que declara nulas las adiciones
apostillas entrerrenglonados, raspaduras y tachados en las escrituras matrices,
siempre que no se salven en la forma prevenida, paro no el documento que las
contenga, y con mayor motivo cuando las palabras enmendadas, tachadas, o
entrerrenglonadas no tengan importancia ni susciten duda alguna acerca del
pensamiento del testador, o constituyan meros accidentes de ortografia o de purez
escrituraria, sin trascendencia alguna(l).
Mas para que sea aplicable la doctrina de excepcion contenida en este ultimo
fallo, es preciso que las tachaduras, enmiendas o entrerrenglonados sin salvar saan
de pala bras que no afecter4 alteren ni uarien de modo substancial la express
voluntad del testador manifiesta en el documento. Asi lo advierte la sentencia de 29
de Noviembre de 1916, que declara nulo un testamento olografo por no estar salvada
por el testador la enmienda del guarismo ultimo del ao en que fue
extendido 3(Emphasis ours).
WHEREFORE, this Petition is hereby dismissed and the Decision of respondent Judge, dated
September 3, 1973, is hereby affirmed in toto. No costs.
SO ORDERED.
Plana, Gutierrez, Jr. and De la Fuente, JJ., concur.
Relova, J., took no part.
Separate Opinions
TEEHANKEE, J., concurring:
I concur. Rosa, having appealed to this Court on a sole question of law, is bound by the trial court's
factual finding that the peculiar alterations in the holographic will crossing out Rosa's name and instead
inserting her brother Gregorio's name as sole heir and "sole executrix" were made by the testatrix in her
own handwriting. (I find it peculiar that the testatrix who was obviously an educated person would
unthinkingly make such crude alterations instead of consulting her lawyer and writing an entirely new
holographic wig in order to avoid any doubts as to her change of heir. It should be noted that the first
alteration crossing out "sister Rosa K. Kalaw" and inserting "brother Gregorio Kalaw" as sole heir is not
even initialed by the testatrix. Only the second alteration crossing out "sister Rosa K. Kalaw" and
inserting "brother Gregorio Kalaw" as "sole executrix" is initialed.) Probate of the radically altered will
replacing Gregorio for Rosa as sole heir is properly denied, since the same was not duly authenticated
by the full signature of the executrix as mandatorily required by Article 814 of the Civil Code. The
original unaltered will naming Rosa as sole heir cannot, however, be given effect in view of the trial
court's factual finding that the testatrix had by her own handwriting substituted Gregorio for Rosa, so
that there is no longer any will naming Rosa as sole heir. The net result is that the testatrix left no valid
will and both Rosa and Gregorio as her next of kill succeed to her intestate estate.
Separate Opinions
TEEHANKEE, J., concurring:
I concur. Rosa, having appealed to this Court on a sole question of law, is bound by the trial court's
factual finding that the peculiar alterations in the holographic will crossing out Rosa's name and instead
inserting her brother Gregorio's name as sole heir and "sole executrix" were made by the testatrix in her
own handwriting. (I find it peculiar that the testatrix who was obviously an educated person would
unthinkingly make such crude alterations instead of consulting her lawyer and writing an entirely new
holographic wig in order to avoid any doubts as to her change of heir. It should be noted that the first
alteration crossing out "sister Rosa K. Kalaw" and inserting "brother Gregorio Kalaw" as sole heir is not
even initialed by the testatrix. Only the second alteration crossing out "sister Rosa K. Kalaw" and
inserting "brother Gregorio Kalaw" as "sole executrix" is initialed.) Probate of the radically altered will
replacing Gregorio for Rosa as sole heir is properly denied, since the same was not duly authenticated
by the full signature of the executrix as mandatorily required by Article 814 of the Civil Code. The
original unaltered will naming Rosa as sole heir cannot, however, be given effect in view of the trial
court's factual finding that the testatrix had by her own handwriting substituted Gregorio for Rosa, so
that there is no longer any will naming Rosa as sole heir. The net result is that the testatrix left no valid
will and both Rosa and Gregorio as her next of kill succeed to her intestate estate.
 FIRST DIVISION
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.
Luciano A. Joson for petitioner-appellant.
Cesar Paralejo for oppositor-appellee.
RELOVA, J.:
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.
 FIRST DIVISION
G.R. No. L-38338 January 28, 1985
IN THE MATTER OF THE INTESTATE ESTATE OF ANDRES G. DE JESUS AND BIBIANA ROXAS
DE JESUS, SIMEON R. ROXAS & PEDRO ROXAS DE JESUS, petitioners,
vs.
ANDRES R. DE JESUS, JR., respondent.
Raul S. Sison Law Office for petitioners.
Rafael Dinglasan, Jr. for heir M. Roxas.
Ledesma, Guytingco Velasco and Associates for Ledesa and A. R. de Jesus.
GUTIERREZ, JR., J.:
This is a petition for certiorari to set aside the order of respondent Hon. Jose C. Colayco, Presiding
Judge Court of First Instance of Manila, Branch XXI disallowing the probate of the holographic Will of
the deceased Bibiana Roxas de Jesus.
The antecedent facts which led to the filing of this petition are undisputed.
After the death of spouses Andres G. de Jesus and Bibiana Roxas de Jesus, Special Proceeding No.
81503 entitled "In the Matter of the Intestate Estate of Andres G. de Jesus and Bibiana Roxas de Jesus"
was filed by petitioner Simeon R. Roxas, the brother of the deceased Bibiana Roxas de Jesus.
On March 26, 1973, petitioner Simeon R. Roxas was appointed administrator. After Letters of
Administration had been granted to the petitioner, he delivered to the lower court a document purporting
to be the holographic Will of the deceased Bibiana Roxas de Jesus. On May 26, 1973, respondent
Judge Jose Colayco set the hearing of the probate of the holographic Win on July 21, 1973.
Petitioner Simeon R. Roxas testified that after his appointment as administrator, he found a notebook
belonging to the deceased Bibiana R. de Jesus and that on pages 21, 22, 23 and 24 thereof, a letter-
win addressed to her children and entirely written and signed in the handwriting of the deceased Bibiana
R. de Jesus was found. The will is dated "FEB./61 " and states: "This is my win which I want to be
respected although it is not written by a lawyer. ...
The testimony of Simeon R. Roxas was corroborated by the testimonies of Pedro Roxas de Jesus and
Manuel Roxas de Jesus who likewise testified that the letter dated "FEB./61 " is the holographic Will of
their deceased mother, Bibiana R. de Jesus. Both recognized the handwriting of their mother and
positively Identified her signature. They further testified that their deceased mother understood English,
the language in which the holographic Will is written, and that the date "FEB./61 " was the date when
said Will was executed by their mother.
Respondent Luz R. Henson, another compulsory heir filed an "opposition to probate" assailing the
purported holographic Will of Bibiana R. de Jesus because a it was not executed in accordance with
law, (b) it was executed through force, intimidation and/or under duress, undue influence and improper
pressure, and (c) the alleged testatrix acted by mistake and/or did not intend, nor could have intended
the said Will to be her last Will and testament at the time of its execution.
On August 24, 1973, respondent Judge Jose C. Colayco issued an order allowing the probate of the
holographic Will which he found to have been duly executed in accordance with law.
Respondent Luz Roxas de Jesus filed a motion for reconsideration alleging inter alia that the alleged
holographic Will of the deceased Bibiana R. de Jesus was not dated as required by Article 810 of the
Civil Code. She contends that the law requires that the Will should contain the day, month and year of
its execution and that this should be strictly complied with.
On December 10, 1973, respondent Judge Colayco reconsidered his earlier order and disallowed the
probate of the holographic Will on the ground that the word "dated" has generally been held to include
the month, day, and year. The dispositive portion of the order reads:
WHEREFORE, the document purporting to be the holographic Will of Bibiana Roxas
de Jesus, is hereby disallowed for not having been executed as required by the law.
The order of August 24, 1973 is hereby set aside.
The only issue is whether or not the date "FEB./61 " appearing on the holographic Will of the deceased
Bibiana Roxas de Jesus is a valid compliance with the Article 810 of the Civil Code which reads:
ART. 810. A person may execute a holographic will which must be entirely written,
dated, and signed by the hand of the testator himself. It is subject to no other form,
and may be made in or out of the Philippines, and need not be witnessed.
The petitioners contend that while Article 685 of the Spanish Civil Code and Article 688 of the Old Civil
Code require the testator to state in his holographic Win the "year, month, and day of its execution," the
present Civil Code omitted the phrase Ao mes y dia and simply requires that the holographic Will
should be dated. The petitioners submit that the liberal construction of the holographic Will should
prevail.
Respondent Luz Henson on the other hand submits that the purported holographic Will is void for non-
compliance with Article 810 of the New Civil Code in that the date must contain the year, month, and
day of its execution. The respondent contends that Article 810 of the Civil Code was patterned after
Section 1277 of the California Code and Section 1588 of the Louisiana Code whose Supreme Courts
had consistently ruled that the required date includes the year, month, and day, and that if any of these
is wanting, the holographic Will is invalid. The respondent further contends that the petitioner cannot
plead liberal construction of Article 810 of the Civil Code because statutes prescribing the formalities to
be observed in the execution of holographic Wills are strictly construed.
We agree with the petitioner.
This will not be the first time that this Court departs from a strict and literal application of the statutory
requirements regarding the due execution of Wills. We should not overlook the liberal trend of the Civil
Code in the manner of execution of Wills, the purpose of which, in case of doubt is to prevent intestacy
Wills executed on the same day, or of a testator becoming insane on the day on which a Will was
The underlying and fundamental objectives permeating the provisions of the law on
wigs in this Project consists in the liberalization of the manner of their execution with
the end in view of giving the testator more freedom in expressing his last wishes, but
with sufficien safeguards and restrictions to prevent the commission of fraud and the
exercise of undue and improper pressure and influence upon the testator.
This objective is in accord with the modem tendency with respect to the formalities in
the execution of wills. (Report of the Code Commission, p. 103)
In Justice Capistrano's concurring opinion in Heirs of Raymundo Castro v. Bustos (27 SCRA 327) he
emphasized that:
xxx xxx xxx
... The law has a tender regard for the will of the testator expressed in his last will and
testament on the ground that any disposition made by the testator is better than that
which the law can make. For this reason, intestate succession is nothing more than a
disposition based upon the presumed will of the decedent.
Thus, the prevailing policy is to require satisfaction of the legal requirements in order to guard against
fraud and bad faith but without undue or unnecessary curtailment of testamentary privilege Icasiano v.
Icasiano, 11 SCRA 422). If a Will has been executed in substantial compliance with the formalities of
the law, and the possibility of bad faith and fraud in the exercise thereof is obviated, said Win should be
admitted to probate (Rey v. Cartagena 56 Phil. 282). Thus,
In particular, a complete date is required to provide against such contingencies as that of two competing
executed (Velasco v. Lopez, 1 Phil. 720). There is no such contingency in this case.
We have carefully reviewed the records of this case and found no evidence of bad faith and fraud in its
execution nor was there any substitution of Wins and Testaments. There is no question that the
holographic Will of the deceased Bibiana Roxas de Jesus was entirely written, dated, and signed by the
testatrix herself and in a language known to her. There is also no question as to its genuineness and
due execution. All the children of the testatrix agree on the genuineness of the holographic Will of their
mother and that she had the testamentary capacity at the time of the execution of said Will. The
objection interposed by the oppositor-respondent Luz Henson is that the holographic Will is fatally
defective because the date "FEB./61 " appearing on the holographic Will is not sufficient compliance
with Article 810 of the Civil Code. This objection is too technical to be entertained.
As a general rule, the "date" in a holographic Will should include the day, month, and year of its
execution. However, when as in the case at bar, there is no appearance of fraud, bad faith, undue
influence and pressure and the authenticity of the Will is established and the only issue is whether or
not the date "FEB./61" appearing on the holographic Will is a valid compliance with Article 810 of the
Civil Code, probate of the holographic Will should be allowed under the principle of substantial
compliance.
WHEREFORE, the instant petition is GRANTED. The order appealed from is REVERSED and SET
ASIDE and the order allowing the probate of the holographic Will of the deceased Bibiana Roxas de
Jesus is reinstated.
SO ORDERED.

xxx xxx xxx

... More than anything else, the facts and circumstances of record are to be
considered in the application of any given rule. If the surrounding circumstances point
to a regular execution of the wilt and the instrument appears to have been executed
substantially in accordance with the requirements of the law, the inclination should, in
the absence of any suggestion of bad faith, forgery or fraud, lean towards its
admission to probate, although the document may suffer from some imperfection of
language, or other non-essential defect. ... (Leynez v. Leynez 68 Phil. 745).

If the testator, in executing his Will, attempts to comply with all the requisites, although compliance is
not literal, it is sufficient if the objective or purpose sought to be accomplished by such requisite is
actually attained by the form followed by the testator.

The purpose of the solemnities surrounding the execution of Wills has been expounded by this Court
in Abangan v. Abanga 40 Phil. 476, where we ruled that:

The object of the solemnities surrounding the execution of wills is to close the door
against bad faith and fraud, to avoid substitution of wills and testaments and to
guaranty their truth and authenticity. ...
 THIRD DIVISION
G.R. No. 176831 January 15, 2010
UY KIAO ENG, Petitioner,
vs.
NIXON LEE, Respondent.
DECISION
NACHURA, J.:
Before the Court is a petition for review on certiorari under Rule 45 of the Rules of Court, assailing the
August 23, 2006 Amended Decision1 of the Court of Appeals (CA) in CA-G.R. SP No. 91725 and the
February 23, 2007 Resolution,2 denying the motion for reconsideration thereof.
The relevant facts and proceedings follow.
Alleging that his father passed away on June 22, 1992 in Manila and left a holographic will, which is now
in the custody of petitioner Uy Kiao Eng, his mother, respondent Nixon Lee filed, on May 28, 2001, a
petition for mandamus with damages, docketed as Civil Case No. 01100939, before the Regional Trial
Court (RTC) of Manila, to compel petitioner to produce the will so that probate proceedings for the
allowance thereof could be instituted. Allegedly, respondent had already requested his mother to settle
and liquidate the patriarchs estate and to deliver to the legal heirs their respective inheritance, but
petitioner refused to do so without any justifiable reason. 3
In her answer with counterclaim, petitioner traversed the allegations in the complaint and posited that
the same be dismissed for failure to state a cause of action, for lack of cause of action, and for non-
compliance with a condition precedent for the filing thereof. Petitioner denied that she was in custody of
the original holographic will and that she knew of its whereabouts. She, moreover, asserted that
photocopies of the will were given to respondent and to his siblings. As a matter of fact, respondent was
able to introduce, as an exhibit, a copy of the will in Civil Case No. 224-V-00 before the RTC of
Valenzuela City. Petitioner further contended that respondent should have first exerted earnest efforts to
amicably settle the controversy with her before he filed the suit. 4
The RTC heard the case. After the presentation and formal offer of respondents evidence, petitioner
demurred, contending that her son failed to prove that she had in her custody the original holographic
will. Importantly, she asserted that the pieces of documentary evidence presented, aside from being
hearsay, were all immaterial and irrelevant to the issue involved in the petitionthey did not prove or
disprove that she unlawfully neglected the performance of an act which the law specifically enjoined as
a duty resulting from an office, trust or station, for the court to issue the writ of mandamus.5
The RTC, at first, denied the demurrer to evidence.6 In its February 4, 2005 Order,7 however, it granted
the same on petitioners motion for reconsideration. Respondents motion for reconsideration of this
latter order was denied on September 20, 2005.8 Hence, the petition was dismissed.
Aggrieved, respondent sought review from the appellate court. On April 26, 2006, the CA initially denied
the appeal for lack of merit. It ruled that the writ of mandamus would issue only in instances when no
other remedy would be available and sufficient to afford redress. Under Rule 76, in an action for the
settlement of the estate of his deceased father, respondent could ask for the presentation or production
and for the approval or probate of the holographic will. The CA further ruled that respondent, in the
proceedings before the trial court, failed to present sufficient evidence to prove that his mother had in
her custody the original copy of the will. 91avvphi1
Respondent moved for reconsideration. The appellate court, in the assailed August 23, 2006 Amended
Decision,10granted the motion, set aside its earlier ruling, issued the writ, and ordered the production of
the will and the payment of attorneys fees. It ruled this time that respondent was able to show by
testimonial evidence that his mother had in her possession the holographic will.
Dissatisfied with this turn of events, petitioner filed a motion for reconsideration. The appellate court
denied this motion in the further assailed February 23, 2007 Resolution.11
Left with no other recourse, petitioner brought the matter before this Court, contending in the main that
the petition for mandamus is not the proper remedy and that the testimonial evidence used by the
appellate court as basis for its ruling is inadmissible. 12
The Court cannot sustain the CAs issuance of the writ.
The first paragraph of Section 3 of Rule 65 of the Rules of Court pertinently provides that
SEC. 3. Petition for mandamus.When any tribunal, corporation, board, officer or person unlawfully
neglects the performance of an act which the law specifically enjoins as a duty resulting from an office,
trust, or station, or unlawfully excludes another from the use and enjoyment of a right or office to which
such other is entitled, and there is no other plain, speedy and adequate remedy in the ordinary course
of law, the person aggrieved thereby may file a verified petition in the proper court, alleging the facts
with certainty and praying that judgment be rendered commanding the respondent, immediately or at
some other time to be specified by the court, to do the act required to be done to protect the rights of the
petitioner, and to pay the damages sustained by the petitioner by reason of the wrongful acts of the
respondent.13
Mandamus is a command issuing from a court of law of competent jurisdiction, in the name of the state
or the sovereign, directed to some inferior court, tribunal, or board, or to some corporation or person
requiring the performance of a particular duty therein specified, which duty results from the official
station of the party to whom the writ is directed or from operation of law. 14 This definition recognizes the
public character of the remedy, and clearly excludes the idea that it may be resorted to for the purpose
of enforcing the performance of duties in which the public has no interest.15 The writ is a proper
recourse for citizens who seek to enforce a public right and to compel the performance of a public duty,
most especially when the public right involved is mandated by the Constitution. 16 As the quoted
provision instructs, mandamus will lie if the tribunal, corporation, board, officer, or person unlawfully
neglects the performance of an act which the law enjoins as a duty resulting from an office, trust or
station.17
The writ of mandamus, however, will not issue to compel an official to do anything which is not his duty
to do or which it is his duty not to do, or to give to the applicant anything to which he is not entitled by
law.18 Nor will mandamus issue to enforce a right which is in substantial dispute or as to which a
substantial doubt exists, although objection raising a mere technical question will be disregarded if the
right is clear and the case is meritorious.19 As a rule, mandamus will not lie in the absence of any of the
following grounds: [a] that the court, officer, board, or person against whom the action is taken
unlawfully neglected the performance of an act which the law specifically enjoins as a duty resulting
from office, trust, or station; or [b] that such court, officer, board, or person has unlawfully excluded
petitioner/relator from the use and enjoyment of a right or office to which he is entitled. 20 On the part of
the relator, it is essential to the issuance of a writ of mandamus that he should have a clear legal right to
the thing demanded and it must be the imperative duty of respondent to perform the act required.21
Recognized further in this jurisdiction is the principle that mandamus cannot be used to enforce
contractual obligations.22 Generally, mandamus will not lie to enforce purely private contract rights, and
will not lie against an individual unless some obligation in the nature of a public or quasi-public duty is
imposed.23 The writ is not appropriate to enforce a private right against an individual. 24 The writ of
mandamus lies to enforce the execution of an act, when, otherwise, justice would be obstructed; and,
regularly, issues only in cases relating to the public and to the government; hence, it is called a
prerogative writ.25 To preserve its prerogative character, mandamus is not used for the redress of
private wrongs, but only in matters relating to the public. 26
Moreover, an important principle followed in the issuance of the writ is that there should be no plain,
speedy and adequate remedy in the ordinary course of law other than the remedy of mandamus being
invoked.27 In other words, mandamus can be issued only in cases where the usual modes of procedure
and forms of remedy are powerless to afford relief.28 Although classified as a legal remedy, mandamus
is equitable in its nature and its issuance is generally controlled by equitable principles.29 Indeed, the
grant of the writ of mandamus lies in the sound discretion of the court.
SEC. 4. Custodian and executor subject to fine for neglect.A person who neglects any of the duties
required in the two last preceding sections without excuse satisfactory to the court shall be fined not
exceeding two thousand pesos.
SEC. 5. Person retaining will may be committed.A person having custody of a will after the death of
the testator who neglects without reasonable cause to deliver the same, when ordered so to do, to the
court having jurisdiction, may be committed to prison and there kept until he delivers the will. 30
There being a plain, speedy and adequate remedy in the ordinary course of law for the production of the
subject will, the remedy of mandamus cannot be availed of. Suffice it to state that respondent Lee lacks
a cause of action in his petition. Thus, the Court grants the demurrer.
WHEREFORE, premises considered, the petition for review on certiorari is GRANTED. The August 23,
2006 Amended Decision and the February 23, 2007 Resolution of the Court of Appeals in CA-G.R. SP
No. 91725 are REVERSED and SET ASIDE. Civil Case No. 01100939 before the Regional Trial Court
of Manila is DISMISSED.
SO ORDERED.
ANTONIO EDUARDO B. NACHURA
Associate Justice

In the instant case, the Court, without unnecessarily ascertaining whether the obligation involved here WE CONCUR:
the production of the original holographic willis in the nature of a public or a private duty, rules that the
remedy of mandamus cannot be availed of by respondent Lee because there lies another plain, speedy
and adequate remedy in the ordinary course of law. Let it be noted that respondent has a photocopy of
the will and that he seeks the production of the original for purposes of probate. The Rules of Court,
however, does not prevent him from instituting probate proceedings for the allowance of the will whether
the same is in his possession or not. Rule 76, Section 1 relevantly provides:

Section 1. Who may petition for the allowance of will.Any executor, devisee, or legatee named in a
will, or any other person interested in the estate, may, at any time, after the death of the testator,
petition the court having jurisdiction to have the will allowed, whether the same be in his possession or
not, or is lost or destroyed.

An adequate remedy is further provided by Rule 75, Sections 2 to 5, for the production of the original
holographic will. Thus

SEC. 2. Custodian of will to deliver.The person who has custody of a will shall, within twenty (20)
days after he knows of the death of the testator, deliver the will to the court having jurisdiction, or to the
executor named in the will.

SEC. 3. Executor to present will and accept or refuse trust.A person named as executor in a will shall
within twenty (20) days after he knows of the death of the testator, or within twenty (20) days after he
knows that he is named executor if he obtained such knowledge after the death of the testator, present
such will to the court having jurisdiction, unless the will has reached the court in any other manner, and
shall, within such period, signify to the court in writing his acceptance of the trust or his refusal to accept
it.
 FIRST DIVISION
G.R. No. 123486 August 12, 1999
EUGENIA RAMONAL CODOY, and MANUEL RAMONAL, petitioners,
vs.
EVANGELINE R. CALUGAY, JOSEPHINE SALCEDO, and UEFEMIA PATIGAS, respondents.
PARDO, J.:
Before us is a petition for review on certiorari of the decision of the Court of Appeals1 and its resolution
denying reconsideration, ruling:
Upon the unrebutted testimony of appellant Evangeline Calugay and witness Matilde Ramonal
Binanay, the authenticity of testators holographic will has been established and the handwriting
and signature therein (exhibit S) are hers, enough to probate said will. Reversal of the
judgment appealed from and the probate of the holographic will in question be called for. The
rule is that after plaintiff has completed presentation of his evidence and the defendant files a
motion for judgment on demurrer to evidence on the ground that upon the facts and the law
plaintiff has shown no right to relief, if the motion is granted and the order to dismissal is
reversed on appeal, the movant loses his right to present evidence in his behalf (Sec, 1 Rule
35 Revised Rules of Court). Judgment may, therefore, be rendered for appellant in the instant
case.
Wherefore, the order appealed from is REVERSED and judgment rendered allowing the
probate of the holographic will of the testator Matilde Seo Vda. de Ramonal.2
The facts are as follows:
On April 6, 1990, Evangeline Calugay, Josephine Salcedo and Eufemia Patigas, devisees and legatees
of the holographic will of the deceased Matilde Seo Vda. de Ramonal, filed with the Regional Trial
Court, Misamis Oriental, Branch 18, a petition3 for probate of the holographic will of the deceased, who
died on January 16, 1990.
In the petition, respondents claimed that the deceased Matilde Seo Vda. de Ramonal, was of sound
and disposing mind when she executed the will on August 30, 1978, that there was no fraud, undue
influence, and duress employed in the person of the testator, and will was written voluntarily.
The assessed value of the decedent's property, including all real and personal property was about
P400,000.00, at the time of her death.4
On June 28, 1990, Eugenia Ramonal Codoy and Manuel Ramonal filed an opposition5 to the petition for
probate, alleging that the holographic will was a forgery and that the same is even illegible. This gives
an impression that a "third hand" of an interested party other than the "true hand" of Matilde Seo Vda.
de Ramonal executed the holographic will.
Petitioners argued that the repeated dates incorporated or appearing on will after every disposition is
out of the ordinary. If the deceased was the one who executed the will, and was not forced, the dates
and the signature should appear at the bottom after the dispositions, as regularly done and not after
every disposition. And assuming that the holographic will is in the handwriting of the deceased, it was
procured by undue and improper pressure and influence on the part of the beneficiaries, or through
fraud and trickery.1wphi1.nt
Respondents presented six (6) witnesses and various documentary evidence. Petitioners instead of
presenting their evidence, filed a demurrer6 to evidence, claiming that respondents failed to establish
sufficient factual and legal basis for the probate of the holographic will of the deceased Matilde Seo
Vda. de Ramonal.
On November 26, 1990, the lower Court issued an order, the dispositive portion of which reads:
WHEREFORE, in view of the foregoing consideration, the Demurrer to Evidence having being
well taken, same is granted, and the petition for probate of the document (Exhibit "S") on the
purported Holographic Will of the late Matilde Seo Vda. de Ramonal, is denied for
insufficiency of evidence and lack of merits. 7
On December 12, 1990, respondents filed a notice of appeal,8 and in support of their appeal, the
respondents once again reiterated the testimony of the following witnesses, namely: (1) Augusto Neri;
(2) Generosa Senon; (3) Matilde Ramonal Binanay; (4) Teresita Vedad; (5) Fiscal Rodolfo Waga; and
(6) Evangeline Calugay.
To have a clear understanding of the testimonies of the witnesses, we recite an account of their
testimonies.
Augusto Neri, Clerk of Court, Court of First Instance of Misamis Oriental, where the special proceedings
for the probate of the holographic will of the deceased was filed. He produced and identified the records
of the case. The documents presented bear the signature of the deceased, Matilde Seo Vda. de
Ramonal, for the purpose of laying the basis for comparison of the handwriting of the testatrix, with the
writing treated or admitted as genuine by the party against whom the evidence is offered.
Generosa Senon, election registrar of Cagayan de Oro, was presented to produced and identify the
voter's affidavit of the decedent. However, the voters' affidavit was not produced for the same was
already destroyed and no longer available.
Matilde Ramonal Binanay, testified that the deceased Matilde Seo Vda. de Ramonal was her aunt, and
that after the death of Matilde's husband, the latter lived with her in her parent's house for eleven (11)
years from 1958 to 1969. During those eleven (11) years of close association the deceased, she
acquired familiarity with her signature and handwriting as she used to accompany her (deceased
Matilde Seo Vda. de Ramonal) in collecting rentals from her various tenants of commercial buildings,
and deceased always issued receipts. In addition to this, she (witness Matilde Binanay) assisted the
deceased in posting the records of the accounts, and carried personal letters of the deceased to her
creditors.
Matilde Ramonal Binanay further testified that at the time of the death of Matilde Vda. de Ramonal, she
left a holographic will dated August 30, 1978, which was personally and entirely written, dated and
signed, by the deceased and that all the dispositions therein, the dates, and the signatures in said will, August 30, 1978
were that of the deceased.
4. I bequeath my one (1) hectare land at Mandumol, Indahag to Evangeline R. Calugay
Fiscal Rodolfo Waga testified that before he was appointed City Fiscal of Cagayan de Oro, he was a
practicing lawyer, and handled all the pleadings and documents signed by the deceased in connection (Sgd) Matilde Vda de Ramonal
with the proceedings of her late husband, as a result of which he is familiar with the handwriting of the
latter. He testified that the signature appearing in the holographic will was similar to that of the
deceased, Matilde Seo Vda. de Ramonal, but he can not be sure. August 30, 1978

The fifth witness presented was Mrs. Teresita Vedad, an employee of the Department of Environment 5. Give the 2,500 Square Meters at Sta. Cruz Ramonal Village in favor of Evangeline R.
and Natural Resources, Region 10. She testified that she processed the application of the deceased for Calugay, Helen must continue with the Sta. Cruz, once I am no longer around.
pasture permit and was familiar with the signature of the deceased, since the signed documents in her
presence, when the latter was applying for pasture permit. (Sgd) Matilde Vda de Ramonal

Finally, Evangeline Calugay, one of the respondents, testified that she had lived with the deceased August 30, 1978
since birth, and was in fact adopted by the latter. That after a long period of time she became familiar
with the signature of the deceased. She testified that the signature appearing in the holographic will is 6. Bury me where my husband Justo is ever buried.
the true and genuine signature of Matilde Seo Vda. de Ramonal.

(Sgd) Matilde Vda de Ramonal

The holographic will which was written in Visayan, is translated in English as follows:

August 30, 1978

Instruction

Gene and Manuel:

August 30, 1978

Follow my instruction in order that I will rest peacefully.

1. My share at Cogon, Raminal Street, for Evangeline Calugay.

Mama
(Sgd) Matilde Vda de Ramonal

Matilde Vda de Ramonal

August 30, 1978

On October 9, 1995, the Court of Appeals, rendered decision9 ruling that the appeal was meritorious.
2. Josefina Salcedo must be given 1,500 square meters at Pinikan Street. Citing the decision in the case of Azaola vs. Singson, 109 Phil. 102, penned by Mr. Justice J. B. L.
Reyes, a recognized authority in civil law, the Court of Appeals held:
(Sgd) Matilde Vda de Ramonal
. . . even if the genuineness of the holographic will were contested, we are of the opinion that
August 30, 1978 Article 811 of our present civil code can not be interpreted as to require the compulsory
presentation of three witnesses to identify the handwriting of the testator, under penalty of
3. My jewelry's shall be divided among: having the probate denied. Since no witness may have been present at the execution of the
holographic will, none being required by law (art. 810, new civil code), it becomes obvious that
the existence of witnesses possessing the requisite qualifications is a matter beyond the
1. Eufemia Patigas control of the proponent. For it is not merely a question of finding and producing any three
witnesses; they must be witnesses "who know the handwriting and signature of the testator"
2. Josefina Salcedo and who can declare (truthfully, of course, even if the law does not express) "that the will and
the signature are in the handwriting of the testator." There may be no available witness
3. Evangeline Calugay acquainted with the testator's hand; or even if so familiarized, the witness maybe unwilling to
give a positive opinion. Compliance with the rule of paragraph 1 of article 811 may thus
(Sgd) Matilde Vda de Ramonal
 become an impossibility. That is evidently the reason why the second paragraph of article 811
prescribes that
in the absence of any competent witness referred to in the preceding paragraph, and if the
court deems it necessary, expert testimony may be resorted to.
As can be see, the law foresees, the possibility that no qualified witness ma be found (or what
amounts to the same thing, that no competent witness may be willing to testify to the
authenticity of the will), and provides for resort to expert evidence to supply the deficiency.
It may be true that the rule of this article (requiring that three witnesses be presented if the will
is contested and only one if no contest is had) was derived from the rule established for
ordinary testaments (CF Cabang vs. Delfianado, 45 PHIL 291; Tolentino v. Francisco, 57 PHIL
742). But it can not be ignored that the requirement can be considered mandatory only in case
of ordinary testaments, precisely because the presence of at least three witnesses at the
execution of ordinary wills is made by law essential to their validity (Art. 805). Where the will is
holographic, no witness need be present (art. 10), and the rule requiring production of three
witnesses must be deemed merely permissive if absurd results are to be avoided.
Again, under Art. 811, the resort to expert evidence is conditioned by the words "if the court
deem it necessary", which reveal that what the law deems essential is that the court should be
convinced of the will's authenticity. Where the prescribed number of witnesses is produced and
the court is convinced by their testimony that the will is genuine, it may consider it unnecessary
to call for expert evidence. On the other hand, if no competent witness is available, or none of
those produced is convincing, the court may still, and in fact it should resort to handwriting
experts. The duty of the court, in fine, is to exhaust all available lines of inquiry, for the state is
as much interested as the proponent that the true intention of the testator be carried into effect.
Paraphrasing Azaola vs. Singson, even if the genuineness of the holographic will were
contested, Article 811 of the civil code cannot be interpreted as to require the compulsory
presentation of three witnesses to identify the handwriting of the testator, under penalty of the
having the probate denied. No witness need be present in the execution of the holographic will.
And the rule requiring the production of three witnesses is merely permissive. What the law
deems essential is that the court is convinced of the authenticity of the will. Its duty is to
exhaust all available lines of inquiry, for the state is as much interested in the proponent that
the true intention of the testator be carried into effect. And because the law leaves it to the trial
court to decide if experts are still needed, no unfavorable inference can be drawn from a
party's failure to offer expert evidence, until and unless the court expresses dissatisfaction with
the testimony of the lay witnesses.10
According to the Court of Appeals, Evangeline Calugay, Matilde Ramonal Binanay and other witnesses
definitely and in no uncertain terms testified that the handwriting and signature in the holographic will
were those of the testator herself.
Thus, upon the unrebutted testimony of appellant Evangeline Calugay and witness Matilde Ramonal
Binanay, the Court of Appeals sustained the authenticity of the holographic will and the handwriting and
signature therein, and allowed the will to probate.
Hence, this petition.
The petitioners raise the following issues:
(1) Whether or not the ruling of the case of Azaola vs. Singson, 109 Phil. 102, relied upon by
the respondent Court of Appeals, was applicable to the case.
(2) Whether or not the Court of Appeals erred in holding that private respondents had been
able to present credible evidence to that the date, text, and signature on the holographic will
written entirely in the hand of the testatrix.
(3) Whether or not the Court of Appeals erred in not analyzing the signatures in the
holographic will of Matilde Seo Vda. de Ramonal.
In this petition, the petitioners ask whether the provisions of Article 811 of the Civil Code are permissive
or 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.1wphi1.nt
We are convinced, based on the language used, that Article 811 of the Civil Code is mandatory. 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.11
Laws are enacted to achieve a goal intended and to guide against an evil or mischief that aims to
prevent. In the case at bar, the goal to achieve 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.
So, we believe that the paramount consideration in the present petition is to determine the true intent of
the deceased. An exhaustive and objective consideration of the evidence is imperative to establish the
true intent of the testator.
It will be noted that not all the witnesses presented by the respondents testified explicitly that they were
familiar with the handwriting of testator. In the case of Augusto Neri, clerk of court, Court of First
Instance, Misamis Oriental, he merely identified the record of Special Proceedings No. 427 before said
court. He was not presented to declare explicitly that the signature appearing in the holographic was
that of the deceased.
Generosa E. Senon, the election registrar of Cagayan de Oro City, was presented to identify the
signature of the deceased in the voter's affidavit, which was not even produced as it was no longer
available.
Matilde Ramonal Binanay, on the other hand, testified that:
Q. And you said for eleven (11) years Matilde Vda de Ramonal resided with your parents at
Pinikitan, Cagayan de Oro City. Would you tell the court what was your occupation or how did
Matilde Vda de Ramonal keep herself busy that time?
A. Collecting rentals. xxx xxx xxx

Q. From where? Q. In addition to collection of rentals, posting records of accounts of tenants and deed of sale
which you said what else did you do to acquire familiarity of the signature of Matilde Vda De
A. From the land rentals and commercial buildings at Pabayo-Gomez streets.12 Ramonal?

xxx xxx xxx A. Posting records.

Q. Who sometime accompany her? Q. Aside from that?

A. I sometimes accompany her. A. Carrying letters.

Q. In collecting rentals does she issue receipts? Q. Letters of whom?

A. Yes, sir.13 A. Matilde.

xxx xxx xxx Q. To whom?

Q. Showing to you the receipt dated 23 October 1979, is this the one you are referring to as A. To her creditors.15
one of the receipts which she issued to them?
xxx xxx xxx
A. Yes, sir.
Q. You testified that at time of her death she left a will. I am showing to you a document with
Q. Now there is that signature of Matilde vda. De Ramonal, whose signature is that Mrs. its title "tugon" is this the document you are referring to?
Binanay?
A. Yes, sir.
A. Matilde vda. De Ramonal.
Q. Showing to you this exhibit "S", there is that handwritten "tugon", whose handwriting is
Q. Why do you say that is the signature of Matilde Vda. De Ramonal? this?

A. I am familiar with her signature. A. My Aunt.

Q. Now, you tell the court Mrs. Binanay, whether you know Matilde vda de Ramonal kept Q. Why do you say this is the handwriting of your aunt?
records of the accounts of her tenants?
A. Because I am familiar with her signature.16
A. Yes, sir.
What Ms. Binanay saw were pre-prepared receipts and letters of the deceased, which she either mailed
Q. Why do you say so? or gave to her tenants. She did not declare that she saw the deceased sign a document or write a note.

A. Because we sometimes post a record of accounts in behalf of Matilde Vda. De Ramonal.
Q. How is this record of accounts made? How is this reflected?
A. In handwritten.14
Further, during the cross-examination, the counsel for petitioners elicited the fact that the will was not
found in the personal belongings of the deceased but was in the possession of Ms. Binanay. She
testified that:
Q. Mrs. Binanay, when you were asked by counsel for the petitioners if the late Matilde Seno
vda de Ramonal left a will you said, yes?
 A. Yes, sir. A. Yes, sir.

Q. Who was in possession of that will? Q. She was up and about and was still uprightly and she could walk agilely and she could go
to her building to collect rentals, is that correct?
A. I.
A. Yes, sir.19
Q. Since when did you have the possession of the will?
xxx xxx xxx
A. It was in my mother's possession.
Q. Now, let us go to the third signature of Matilde Ramonal. Do you know that there are
Q. So, it was not in your possession? retracings in the word Vda.?

A. Sorry, yes. A. Yes, a little. The letter L is continuous.

Q. And when did you come into possession since as you said this was originally in the Q. And also in Matilde the letter L is continued to letter D?
possession of your mother?
A. Yes, sir.
A. 1985.17
Q. Again the third signature of Matilde Vda de Ramonal the letter L in Matilde is continued
xxx xxx xxx towards letter D.

Q. Now, Mrs. Binanay was there any particular reason why your mother left that will to you A. Yes, sir.
and therefore you have that in your possession?
Q. And there is a retracing in the word Vda.?
A. It was not given to me by my mother, I took that in the aparador when she died.
A. Yes, sir.20
Q. After taking that document you kept it with you?
xxx xxx xxx
A. I presented it to the fiscal.
Q. Now, that was 1979, remember one year after the alleged holographic will. Now, you
Q. For what purpose? identified a document marked as Exhibit R. This is dated January 8, 1978 which is only about
eight months from August 30, 1978. Do you notice that the signature Matilde Vda de Ramonal
is beautifully written and legible?
A. Just to seek advice.
A. Yes, sir the handwriting shows that she was very exhausted.
Q. Advice of what?
Q. You just say that she was very exhausted while that in 1978 she was healthy was not
A. About the will.18 sickly and she was agile. Now, you said she was exhausted?

In her testimony it was also evident that Ms. Binanay kept the fact about the will from petitioners, the A. In writing.
legally adopted children of the deceased. 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.
Q. How did you know that she was exhausted when you were not present and you just tried
to explain yourself out because of the apparent inconsistencies?
In the testimony of Ms. Binanay, the following were established:
A. That was I think. (sic).
Q. Now, in 1978 Matilde Seno Vda de Ramonal was not yet a sickly person is that correct?
 Q. Now, you already observed this signature dated 1978, the same year as the alleged Q. Why do you say that is her signature?
holographic will. In exhibit I, you will notice that there is no retracing; there is no hesitancy and
the signature was written on a fluid movement. . . . And in fact, the name Eufemia R. Patigas A. I am familiar with her signature.23
here refers to one of the petitioners?
So, the only reason that Evangeline can give as to why she was familiar with the handwriting of the
A. Yes, sir. deceased was because she lived with her since birth. She never declared that she saw the deceased
write a note or sign a document.
Q. You will also notice Mrs. Binanay that it is not only with the questioned signature appearing
in the alleged holographic will marked as Exhibit X but in the handwriting themselves, here you The former lawyer of the deceased, Fiscal Waga, testified that:
will notice the hesitancy and tremors, do you notice that?
Q. Do you know Matilde Vda de Ramonal?
A. Yes, sir.21
A. Yes, sir I know her because she is my godmother the husband is my godfather. Actually I
Evangeline Calugay declared that the holographic will was written, dated and signed in the handwriting am related to the husband by consanguinity.
of the testator. She testified that:
Q. Can you tell the name of the husband?
Q. You testified that you stayed with the house of the spouses Matilde and Justo Ramonal for
the period of 22 years. Could you tell the court the services if any which you rendered to
Matilde Ramonal? A. The late husband is Justo Ramonal.24

A. During my stay I used to go with her to the church, to market and then to her transactions. xxx xxx xxx

Q. What else? What services that you rendered? Q. Can you tell this court whether the spouses Justo Ramonal and Matilde Ramonal have
legitimate children?
A. After my college days I assisted her in going to the bank, paying taxes and to her lawyer.
A. As far as I know they have no legitimate children.25
Q. What was your purpose of going to her lawyer?
xxx xxx xxx
A. I used to be her personal driver.
Q. You said after becoming a lawyer you practice your profession? Where?
Q. In the course of your stay for 22 years did you acquire familiarity of the handwriting of
Matilde Vda de Ramonal? A. Here in Cagayan de Oro City.

A. Yes, sir. Q. Do you have services rendered with the deceased Matilde vda de Ramonal?

Q. How come that you acquired familiarity? A. I assisted her in terminating the partition, of properties.

A. Because I lived with her since birth.22 Q. When you said assisted, you acted as her counsel? Any sort of counsel as in what case is
that, Fiscal?
xxx xxx xxx
A. It is about the project partition to terminate the property, which was under the court
before.26
Q. Now, I am showing to you Exhibit S which is captioned "tugon" dated Agosto 30, 1978
there is a signature here below item No. 1, will you tell this court whose signature is this?
xxx xxx xxx
A. Yes, sir, that is her signature.
Q. Appearing in special proceeding no. 427 is the amended inventory which is marked as
exhibit N of the estate of Justo Ramonal and there appears a signature over the type written
word Matilde vda de Ramonal, whose signature is this?
A. That is the signature of Matilde Vda de Ramonal.
Q. Also in exhibit n-3, whose signature is this?
A. This one here that is the signature of Mrs. Matilde vda de Ramonal.27
xxx xxx xxx
Q. Aside from attending as counsel in that Special Proceeding Case No. 427 what were the
other assistance wherein you were rendering professional service to the deceased Matilde Vda
de Ramonal?
A. I can not remember if I have assisted her in other matters but if there are documents to
show that I have assisted then I can recall.28
xxx xxx xxx
Q. Now, I am showing to you exhibit S which is titled "tugon", kindly go over this document,
Fiscal Waga and tell the court whether you are familiar with the handwriting contained in that
document marked as exhibit "S"?
A. I am not familiar with the handwriting.
Q. This one, Matilde Vda de Ramonal, whose signature is this?
A. I think this signature here it seems to be the signature of Mrs. Matilde vda de Ramonal.
Q. Now, in item No. 2 there is that signature here of Matilde Vda de Ramonal, can you tell the
court whose signature is this?
A. Well, that is similar to that signature appearing in the project of partition.
Q. Also in item no. 3 there is that signature Matilde Vda de Ramonal, can you tell the court
whose signature is that?
A. As I said, this signature also seems to be the signature of Matilde vda de Ramonal.
Q. Why do you say that?
A. Because there is a similarity in the way it is being written.
Q. How about this signature in item no. 4, can you tell the court whose signature is this?
A. The same is true with the signature in item no. 4. It seems that they are similar.29
xxx xxx xxx
Q. Mr. Prosecutor, I heard you when you said that the signature of Matilde Vda de Ramonal
Appearing in exhibit S seems to be the signature of Matilde vda de Ramonal?
A. Yes, it is similar to the project of partition.
Q. So you are not definite that this is the signature of Matilde vda de Ramonal. You are
merely supposing that it seems to be her signature because it is similar to the signature of the
project of partition which you have made?
A. That is true.30
From the testimonies of these witnesses, the Court of Appeals allowed the will to probate and disregard
the requirement of three witnesses in case of contested holographic will, citing the decision in Azaola
vs. Singson,31ruling that the requirement is merely directory and not mandatory.
In the case of Ajero vs. Court of Appeals,32 we said 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.
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, that law requires three witnesses to declare
that the will was in the handwriting of the deceased.
The will was found not in the personal belongings of the deceased but with one of the respondents, who
kept it even before the death of the deceased. In the testimony of Ms. Binanay, she revealed that the
will was in her possession as early as 1985, or five years before the death of the deceased.
There was no opportunity for an expert to compare the signature and the handwriting of the deceased
with other documents signed and executed by her during her lifetime. The only chance at comparison
was during the cross-examination of Ms. Binanay when the lawyer of petitioners asked Ms. Binanay to
compare the documents which contained the signature of the deceased with that of the holographic will
and she is not a handwriting expert. Even the former lawyer of the deceased expressed doubts as to the
authenticity of the signature in the holographic will.
A visual examination of the holographic will convince us that the strokes are different when compared
with other documents written by the testator. The signature of the testator in some of the disposition is
not readable. There were uneven strokes, retracing and erasures on the will.
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, 1978,35the 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 ruling holographic will was in the handwriting by the deceased.

IN VIEW WHEREOF, the decision appealed from is SET ASIDE. The records are ordered remanded to
the court of origin with instructions to allow petitioners to adduce evidence in support of their opposition
to the probate of the holographic will of the deceased Matilde Seo vda. de Ramonal.1wphi1.nt

No costs.

SO ORDERED.
 EN BANC
G.R. No. L-20234 December 23, 1964
PAULA DE LA CERNA, ET AL., petitioners,
vs.
MANUELA REBACA POTOT, ET AL., and THE HONORABLE COURT OF APPEALS, respondents.
Philip M. Alo and Crispin M. Menchavez for petitioners.
Nicolas Jumapao for respondents.
REYES, J.B.L., J.:
Appeal by Paula de la Cerna and others from a decision of the Court of Appeals, Sixth Division (C.A.-
G.R. No. 23763-R) reversing that of the Court of First Instance of Cebu (Civ. Case No. R-3819) and
ordering the dismissal of an action for partition.
The factual background appears in the following portion of the decision of the Court of Appeals (Petition,
Annex A, pp. 2-4):
It appears that on May 9, 1939, the spouses, Bernabe de la Serna and Gervasia Rebaca,
executed a joint last will and testament in the local dialect whereby they willed that "our two
parcels of land acquired during our marriage together with all improvements thereon shall be
given to Manuela Rebaca, our niece, whom we have nurtured since childhood, because God
did not give us any child in our union, Manuela Rebaca being married to Nicolas Potot", and
that "while each of the testators is yet living, he or she will continue to enjoy the fruits of the
two lands aforementioned", the said two parcels of land being covered by Tax No. 4676 and
Tax No. 6677, both situated in sitio Bucao, barrio Lugo, municipality of Borbon, province of
Cebu. Bernabe dela Serna died on August 30, 1939, and the aforesaid will was submitted to
probate by said Gervasia and Manuela before the Court of First Instance of Cebu which, after
due publication as required by law and there being no opposition, heard the evidence, and, by
Order of October 31, 1939; in Special Proceedings No. 499, "declara legalizado el documento
Exhibit A como el testamento y ultima voluntad del finado Bernabe de la Serna con derecho
por parte du su viuda superstite Gervasia Rebaca y otra testadora al propio tiempo segun el
Exhibit A de gozar de los frutos de los terranos descritos en dicho documents; y habido
consideracion de la cuantia de dichos bienes, se decreta la distribucion sumaria de los mismos
en favor de la logataria universal Manuela Rebaca de Potot previa prestacion por parte de la
misma de una fianza en la sum de P500.00 para responder de cualesquiera reclamaciones
que se presentare contra los bienes del finado Bernabe de la Serna de los aos desde esta
fecha" (Act Esp. 499, Testamentaria Finado Bernabe de la Serna) Upon the death of Gervasia
Rebaca on October 14, 1952, another petition for the probate of the same will insofar as
Gervasia was concerned was filed on November 6, 1952, being Special Proceedings No.
1016-R of the same Court of First Instance of Cebu, but for failure of the petitioner, Manuela R.
Potot and her attorney, Manuel Potot to appear, for the hearing of said petition, the case was
dismissed on March 30, 1954 Spec. Proc. No. 1016-R, In the matter of the Probate of the Will
of Gervasia Rebaca).
The Court of First Instance ordered the petition heard and declared the testament null and void, for
being executed contrary to the prohibition of joint wills in the Civil Code (Art. 669, Civil Code of 1889
and Art. 818, Civil Code of the Philippines); but on appeal by the testamentary heir, the Court of
Appeals reversed, on the ground that the decree of probate in 1939 was issued by a court of probate
jurisdiction and conclusive on the due execution of the testament. Further, the Court of Appeals
declared that:
... . It is true the law (Art. 669, old Civil Code; Art. 818, new Civil Code). prohibits the making of
a will jointly by two or more persons either for their reciprocal benefit or for the benefit of a third
person. However, this form of will has long been sanctioned by use, and the same has
continued to be used; and when, as in the present case, one such joint last will and testament
has been admitted to probate by final order of a Court of competent jurisdiction, there seems to
be no alternative except to give effect to the provisions thereof that are not contrary to law, as
was done in the case of Macrohon vs. Saavedra, 51 Phil. 267, wherein our Supreme Court
gave effect to the provisions of the joint will therein mentioned, saying, "assuming that the joint
will in question is valid."
Whence this appeal by the heirs intestate of the deceased husband, Bernabe de la Cerna.
The appealed decision correctly held that the final decree of probate, entered in 1939 by the Court of
First Instance of Cebu (when the testator, Bernabe de la Cerna, died), has conclusive effect as to his
last will and testament despite the fact that even then the Civil Code already decreed the invalidity of
joint wills, whether in favor of the joint testators, reciprocally, or in favor of a third party (Art. 669, old
Civil Code). The error thus committed by the probate court was an error of law, that should have been
corrected by appeal, but which did not affect the jurisdiction of the probate court, nor the conclusive
effect of its final decision, however erroneous. A final judgment rendered on a petition for the probate of
a will is binding upon the whole world (Manalo vs. Paredes, 47 Phil. 938; In re Estates of Johnson, 39
Phil. 156); and public policy and sound practice demand that at the risk of occasional errors judgment of
courts should become final at some definite date fixed by law. Interest rei publicae ut finis set litium (Dy
Cay vs. Crossfield, 38 Phil, 521, and other cases cited in 2 Moran, Comments on the Rules of Court
(1963 Ed., p. 322).
Petitioners, as heirs and successors of the late Bernabe de la Cerna, are concluded by the 1939 decree
admitting his will to probate. The contention that being void the will cannot be validated, overlooks that
the ultimate decision on Whether an act is valid or void rests with the courts, and here they have spoken
with finality when the will was probated in 1939. On this court, the dismissal of their action for partition
was correct.
But the Court of Appeals should have taken into account also, to avoid future misunderstanding, that the
probate decree in 1989 could only affect the share of the deceased husband, Bernabe de la Cerna. It
could not include the disposition of the share of the wife, Gervasia Rebaca, who was then still alive, and
over whose interest in the conjugal properties the probate court acquired no jurisdiction, precisely
because her estate could not then be in issue. Be it remembered that prior to the new Civil Code, a will
could not be probated during the testator's lifetime.
It follows that the validity of the joint will, in so far as the estate of the wife was concerned, must be, on
her death, reexamined and adjudicated de novo, since a joint will is considered a separate will of each
testator. Thus regarded, the holding of the court of First Instance of Cebu that the joint will is one
prohibited by law was correct as to the participation of the deceased Gervasia Rebaca in the properties
in question, for the reasons extensively discussed in our decision in Bilbao vs. Bilbao, 87 Phil. 144, that
explained the previous holding in Macrohon vs. Saavedra, 51 Phil. 267.
Therefore, the undivided interest of Gervasia Rebaca should pass upon her death to her heirs intestate,
and not exclusively to the testamentary heir, unless some other valid will in her favor is shown to exist,
or unless she be the only heir intestate of said Gervasia.

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

WITH THE FOREGOING MODIFICATION, the judgment of the Court of Appeals in CA-G.R. No. 23763-
R is affirmed. No Costs.

Bengzon, C.J., Bautista, Angelo, Concepcion, Barrera, Paredes, Dizon Regala, Makalintal, Bengzon,
J.P., and Zaldivar, JJ., concur.