Documente Academic
Documente Profesional
Documente Cultură
Antonio Quintos and Jose M. Yacat for ROSA's position was that the
respondents. holographic Will, as first written, should
be given effect and probated so that
she could be the sole heir thereunder.
MELENCIO-HERRERA, J.: After trial, respondent Judge denied
probate in an Order, dated September
On September 1, 1971, private 3, 197 3, reading in part:
respondent GREGORIO K. KALAW,
claiming to be the sole heir of his The document Exhibit "C"
deceased sister, Natividad K. Kalaw, was submitted to the
filed a petition before the Court of First National Bureau of
Instance of Batangas, Branch VI, Lipa Investigation for
City, for the probate of her holographic examination. The NBI
Will executed on December 24, 1968. reported that the
handwriting, the signature,
The holographic Will reads in full as the insertions and/or
follows: additions and the initial
were made by one and the
My Last will and Testament same person.
Consequently, Exhibit "C"
In the name of God, Amen. was the handwriting of the
decedent, Natividad K.
I Natividad K. Kalaw Filipino 63years of
Kalaw. The only question is
age, single, and a resident of Lipa City,
whether the win, Exhibit
being of sound and disposing mind and
'C', should be admitted to
memory, do hereby declare thus to be
probate although the
my last will and testament.
alterations and/or
insertions or additions
1. It is my will that I'll be burried in the
above-mentioned were not
cemetery of the catholic church of Lipa
authenticated by the full
City. In accordance with the rights of
signature of the testatrix
said Church, and that my executrix
pursuant to Art. 814 of the
hereinafter named provide and erect at
Civil Code. The petitioner
the expose of my state a suitable
contends that the
monument to perpetuate my memory.
oppositors are estopped to
xxx xxx xxx assert the provision of Art.
814 on the ground that
The holographic Will, as first written, they themselves agreed
named ROSA K. Kalaw, a sister of the thru their counsel to submit
testatrix as her sole heir. Hence, on the Document to the NBI
FOR EXAMINATIONS.
1
not been noted under his signature, ... del mismo, porque, en
realidad, tal omision solo voluntad del testador
puede afectar a la validez manifiesta en el
o eficacia de tales documento. Asi lo advierte
palabras, y nunca al la sentencia de 29 de
testamento mismo, ya por Noviembre de 1916, que
estar esa disposicion en declara nulo un testamento
parrafo aparte de aquel olografo por no estar
que determine las salvada por el testador la
condiciones necesarias enmienda del guarismo
para la validez del ultimo del año en que fue
testamento olografo, ya extendido3(Emphasis
porque, de admitir lo ours).
contrario, se Ilegaria al
absurdo de que pequefias WHEREFORE, this Petition is hereby
enmiendas no salvadas, dismissed and the Decision of
que en nada afectasen a la respondent Judge, dated September 3,
parte esencial y respectiva 1973, is hereby affirmed in toto. No
del testamento, vinieran a costs.
anular este, y ya porque el
precepto contenido en SO ORDERED.
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).
uarien de modo
Page
substancial la express
G.R. No. 106720 September 15, 1994 Private respondent opposed the petition
on the grounds that: neither the
SPOUSES ROBERTO AND THELMA testament's body nor the signature
AJERO, petitioners, therein was in decedent's handwriting; it
vs. contained alterations and corrections
THE COURT OF APPEALS AND which were not duly signed by
CLEMENTE SAND, respondents. decedent; and, the will was procured by
petitioners through improper pressure
Miguel D. Larida for petitioners. and undue influence. The petition was
likewise opposed by Dr. Jose Ajero. He
Montilla Law Office for private contested the disposition in the will of a
respondent. house and lot located in Cabadbaran,
Agusan Del Norte. He claimed that said
PUNO, J.: property could not be conveyed by
decedent in its entirety, as she was not
This is an appeal by certiorari from the its sole owner.
Decision of the Court of
Appeals 1 in CA-G.R. CV No. 22840, Notwithstanding the oppositions, the
dated March 30, 1992, the dispositive trial court admitted the decedent's
portion of which reads; holographic will to probate. It
found, inter alia:
PREMISES
CONSIDERED, the Considering then that the
questioned decision of probate proceedings herein
November 19, 1988 of the must decide only the
trial court is hereby question of identity of the
REVERSED and SET will, its due execution and
ASIDE, and the petition for the testamentary capacity
probate is hereby of the testatrix, this probate
DISMISSED. No costs. court finds no reason at all
for the disallowance of the
The earlier Decision was will for its failure to comply
rendered by the RTC of Quezon with the formalities
City, Branch 94, 2 in Sp. Proc. prescribed by law nor for
No. Q-37171, and the instrument lack of testamentary
submitted for probate is the capacity of the testatrix.
holographic will of the late Annie
Sand, who died on November 25, For one, no evidence was
1982. presented to show that the
will in question is different
In the will, decedent named as from the will actually
devisees, the following: petitioners executed by the testatrix.
Roberto and Thelma Ajero, private The only objections raised
respondent Clemente Sand, Meriam S. by the oppositors . . . are
Arong, Leah Sand, Lilia Sand, Edgar that the will was not written
Sand, Fe Sand, Lisa S. Sand, and Dr. in the handwriting of the
Jose Ajero, Sr., and their children. testatrix which properly
refers to the question of its
On January 20, 1983, petitioners due execution, and not to
instituted Sp. Proc. No. Q-37171, for the question of identity of
allowance of decedent's holographic will. No other will was
will. They alleged that at the time of its alleged to have been
execution, she was of sound and executed by the testatrix
disposing mind, not acting under other than the will herein
duress, fraud or undue influence, and presented. Hence, in the
was in every respect capacitated to
4
This is an appeal from the order of the On or about July 26, 1956, Maria
Court of First Instance of Nueva Ecija, Ventura submitted an inventory of the
Guimba, Branch V in Special estate of Gregorio Ventura (Record on
Proceedings No. 812, Testate of the Appeal, pp. 12-20).
late Gregorio Venture, dated October 5,
1965, removing the appellant Maria On June 17,1960, she filed her
Ventura as executrix and administratrix accounts of administration for the years
of the estate of the late Gregorio 1955 to 1960, inclusive. (Record on
Ventura, and in her place appointing Appeal, pp. 20-27). Said account of
the appellees Mercedes Ventura and administration was opposed by the
Gregoria Ventura as joint spouses Mercedes Ventura and Pedro
administratrices of the estate. (Record Corpuz on July 25, 1960 (Record on
on Appeal, pp. 120-131.) Appeal, pp. 27-33) and by Exequiel
Victorio and Gregoria Ventura on
Appellant Maria Ventura is the August 5,1963 (Record on Appeal, pp.
illegitimate daughter of the deceased 46-50). Both oppositions assailed the
Gregorio Ventura while Miguel Ventura veracity of the report as not reflecting
and Juana Cardona are his son and the true income of the estate and the
saving spouse who are also the brother expenses which allegedly are not
and mother of Maria Ventura. On the administration expenses. But on
other hand, appellees Mercedes and January 25, 1961, Maria Ventura filed a
Gregoria Ventura are the deceased's motion to hold in abeyance the
legitimate children with his former wife, approval of the accounts of
the late Paulina Simpliciano (Record on administration or to have their approval
Appeal, p. 122) but the paternity of without the opposition of the spouses
appellees was denied by the deceased Mercedes Ventura and Pedro Corpuz
in his will (Record on Appeal, p. 4). and Gregoria Ventura and Exequiel
Victorio on the ground that the question
On December 14,1953, Gregorio of the paternity of Mercedes Ventura
Ventura filed a petition for the probate and Gregoria Ventura is still pending
of his will which did not include the final determination before the Supreme
appellees and the petition was Court and that should they be adjudged
docketed as Special Proceedings No. the adulterous children of testator, as
812 (Record on Appeal, pp. 1-3). In the claimed, they are not entitled to inherit
said will, the appellant Maria Ventura, nor to oppose the approval of the
although an illegitimate child, was counts of administration (Record on
named and appointed by the testator to Appeals, pp. 33-36). Spouses
10
be the executrix of his will and the Mercedes Ventura and Pedro Corpuz
Page
case the removal of Maria died in 1943, and asked that one-half of
Page
has any administration proceeding ever exhibit 2 and the effect of the certificate
Page
shall be subject to a fine not exceeding committed to prison and kept there until
Page
registration of the land in the name of title No. 51691 in the name of Ernesto
Page
the petitioner upon the latter’s promise M. Guevara, one half of the land
described in said certificate of title
belongs to the estate of Victorino L.
Guevara and the other half to Ernesto
M. Guevara in consideration of the
latter’s assumption of the obligation to
pay all the debts of the deceased, is
hereby affirmed; but the judgment of
said court insofar as it awards any relief
to the respondent Rosario Guevara in
this action is hereby reversed and set
aside, and the parties herein are hereby
ordered to present the document exhibit
A to the proper court for probate in
accordance with law, without prejudice
to such action as the provincial fiscal of
Pangasinan may take against the
responsible party or parties under
section 4 of Rule 76. After the said
document is approved and allowed by
the court as the last will and testament
of the deceased Victorino L. Guevara,
the heirs and legatees therein named
may take such action, judicial or
extrajudicial, as may be necessary to
partition the estate of the testator,
taking into consideration the
pronouncements made in part II of this
opinion. No finding as to costs in any of
the three instances.
26
Page
ARTICLE 817 void as being in violation or article 10 of
the Civil Code which, among other
things, provides the following:
G.R. No. L-22595 November 1,
1927 Nevertheless, legal and
testamentary successions, in
Testate Estate of Joseph G. Brimo, respect to the order of
JUAN MICIANO, succession as well as to the
administrator, petitioner-appellee, amount of the successional rights
vs. and the intrinsic validity of their
ANDRE BRIMO, opponent-appellant. provisions, shall be regulated by
the national law of the person
Ross, Lawrence and Selph for whose succession is in question,
appellant. whatever may be the nature of
Camus and Delgado for appellee. the property or the country in
which it may be situated.
accordance with the laws of his Turkish being contrary to our laws in force,
nationality, for which reason they are
Page
must be complied with and The fact is, however, that the said
executed. lawphil.net condition is void, being contrary to law,
for article 792 of the civil Code provides
Therefore, the approval of the scheme the following:
of partition in this respect was not
erroneous. Impossible conditions and those
contrary to law or good morals
In regard to the first assignment of error shall be considered as not
which deals with the exclusion of the imposed and shall not prejudice
herein appellant as a legatee, inasmuch the heir or legatee in any manner
as he is one of the persons designated whatsoever, even should the
as such in will, it must be taken into testator otherwise provide.
consideration that such exclusion is
based on the last part of the second And said condition is contrary to law
clause of the will, which says: because it expressly ignores the
testator's national law when, according
Second. I like desire to state that to article 10 of the civil Code above
although by law, I am a Turkish quoted, such national law of the testator
citizen, this citizenship having is the one to govern his testamentary
been conferred upon me by dispositions.
conquest and not by free choice,
nor by nationality and, on the Said condition then, in the light of the
other hand, having resided for a legal provisions above cited, is
considerable length of time in the considered unwritten, and the institution
Philippine Islands where I of legatees in said will is unconditional
succeeded in acquiring all of the and consequently valid and effective
property that I now possess, it is even as to the herein oppositor.
my wish that the distribution of
my property and everything in It results from all this that the second
connection with this, my will, be clause of the will regarding the law
made and disposed of in which shall govern it, and to the
accordance with the laws in force condition imposed upon the legatees, is
in the Philippine islands, null and void, being contrary to law.
requesting all of my relatives to
respect this wish, otherwise, I All of the remaining clauses of said will
annul and cancel beforehand with all their dispositions and requests
whatever disposition found in this are perfectly valid and effective it not
will favorable to the person or appearing that said clauses are
persons who fail to comply with contrary to the testator's national law.
this request.
Therefore, the orders appealed from
The institution of legatees in this will is are modified and it is directed that the
conditional, and the condition is that the distribution of this estate be made in
instituted legatees must respect the such a manner as to include the herein
testator's will to distribute his property, appellant Andre Brimo as one of the
not in accordance with the laws of his legatees, and the scheme of partition
nationality, but in accordance with the submitted by the judicial administrator
laws of the Philippines. is approved in all other respects,
without any pronouncement as to costs.
If this condition as it is expressed were
legal and valid, any legatee who fails to So ordered.
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
28
1929 by the late Jose B. Suntay. This on November 1929 or of the foreign will
Page
of the other witnesses (answers to the made in the will by her father of his
Page
31st, 41st, 42nd, 49th, 50th, 55th and estate, to wit: one-third to his children,
one-third to Silvino and his mother and Alberto Barretto (p. 546, t. s. n., Id.).
the other third to Silvino, Apolonio, But her testimony on cross-examination
Concepcion and Jose, Jr. (pp. 526-8, that she read the part of the will on
530-1, 542, t. s. n. Id.); that "after adjudication is inconsistent with her
Apolonio read that portion, then he testimony in chief that after Apolonio
turned over the document to Manuel, had read that part of the will he turned
and he went away," (p. 528, t. s. n., Id.). over or handed the document to
On cross-examination, she testifies that Manuel who went away (p. 528, t. s.
she read the part of the will on n., Id.).
adjudication to know what was the
share of each heir (pp. 530, 544, t. s. If it is true that Go Toh saw the draft
n., Id.) and on redirect she testifies that Exhibit B in the office of Alberto
she saw the signature of her father, Go Barretto in November 1929 when the
Toh, Manuel Lopez and Alberto will was signed, then the part of his
Barretto (p. 546, t. s. n., Id.). testimony that Alberto Barretto handed
the draft to Jose B. Suntay to whom he
Anastacio Teodoro testifies that one said: "You had better see if you want
day in November 1934 (p. 273, t. s. n., any correction" and that "after checking
hearing of 19 January 1948), before the Jose B. Suntay put the "Exhibit B" in his
last postponement of the hearing pocket and had the original signed and
granted by the Court, Go Toh arrived at executed" cannot be true, for it was not
his law office in the De los Reyes the time for correcting the draft of the
Building and left an envelope wrapped will, because it must have been
in red handkerchief [Exhibit C] (p. 32, t. corrected before and all corrections and
s. n., hearing of 13 October 1947); that additions written in lead pencil must
he checked up the signatures on the have been inserted and copied in the
envelope Exhibit A with those on the final draft of the will which was signed
will placed in the envelope (p. 33, t. s. on that occasion. The bringing in for the
n., Id.); that the will was exactly the draft (Exhibit B) on that occasion is just
same as the draft Exhibit B (pp. 32, 47, to fit it within the framework of the
50, t. s. n., Id.). appellant's theory. At any rate, all of Go
Toh's testimony by deposition on the
If the will was snatched after the provisions of the alleged lost will is
delivery thereof by Go Toh to Anastacio hearsay, because he came to know or
Teodoro And returned by the latter to he learned to them from information
the former because they could not given him by Jose B. Suntay and from
agree on the amount of fees, the former reading the translation of the draft
coming to the latter's office straight from (Exhibit B) into Chinese.
the boat (p. 315, t. s. n., hearing of 19
January 1948) that brought him to the Much stress is laid upon the testimony
Philippines from Amoy, and that of Federico C. Suntay who testifies that
delivery took place in November 1934 he read the supposed will or the alleged
(p. 273, t. s. n., Id.), then the testimony will of his father and that the share of
of Ana Suntay that she saw and heard the surviving widow, according to the
her brother Apolonio Suntay read the will, is two-thirds of the estate (p. 229, t.
will sometime in September 1934 (p. s. n., hearing of 24 October 1947). But
524, t. s. n., hearing of 24 February this witness testified to oppose the
1948), must not be true. appointment of a co-administrator of the
estate, for the reason that he had
Although Ana Suntay would be a good acquired the interest of the surviving
witness because she was testifying widow not only in the estate of her
against her own interest, still the fact deceased husband but also in the
remains that she did not read the whole conjugal property (pp. 148, 205, 228,
will but only the adjudication (pp. 526-8, 229, 231, t. s. n., Id.) Whether he read
530-1, 542, t. s. n., Id.) and saw only the original will or just the copy thereof
31
the signature, of her father and of the (Exhibit B) is not clear. For him the
Page
witnesses Go Toh, Manuel Lopez and important point was that he had
acquired all the share, participation and n., Id.); that the handwritten insertions
interest of the surviving widow and of or additions in lead pencil to Exhibit B
the only child by the second marriage in are not his (pp. 415-7 435-6, 457, t. s.
the estate of his deceased father. Be n., Id.); that the final draft of the first will
that as it may, his testimony that under made up of four or five pages (p. 400, t.
the will the surviving widow would take s. n., Id.) was signed and executed, two
two-thirds of the estate of the late Jose or three months after Suntay and Lopez
B. Suntay is at variance with Exhibit B had called on him (pp. 397-8, 403, 449,
and the testimony of Anastacio t. s. n., Id.) in his office at the Cebu
Teodoro. According to the latter, the Portland Cement in the China Banking
third for strict legitime is for the ten Building on Dasmariñas street by Jose
children; the third for betterment is for B. Suntay, Manuel Lopez and a
Silvino, Apolonio, Concepcion and Jose Chinaman who had all come from
Jr.; and the third for free disposal is for Hagonoy (p. 398, t. s. n., Id.); that on
the surviving widow and her child that occasion they brought an envelope
Silvino. (Exhibit A) where the following words
were written: "Testamento de Jose B.
Hence, granting that there was a will Suntay" (pp. 399, 404, t. s. n., Id.); that
duly executed by Jose B. Suntay after the signing of the will it was placed
placed in the envelope (Exhibit A) and inside the envelope (Exhibit A) together
that it was in existence at the time of, with an inventory of the properties of
and not revoked before, his death, still Jose B. Suntay and the envelope was
the testimony of Anastacio Teodoro sealed by the signatures of the testator
alone falls short of the legal and the attesting witnesses (pp. 398,
requirement that the provisions of the 401, 441, 443, 461, t. s. n., Id.); that he
lost will must be "clearly and distinctly again saw the envelope (Exhibit A) in
proved by at least two credible his house one Saturday in the later part
witnesses." Credible witnesses mean of August 1934, brought by Go Toh and
competent witnesses and those who it was then in perfect condition (pp.
testify to facts from or upon hearsay are 405-6, 411, 440-2, t. s. n., Id.); that on
neither competent nor credible the following Monday Go Toh went to
witnesses. his law office bringing along with him
the envelope (Exhibit A) in the same
On the other hand, Alberto Barretto condition; that he told Go Toh that he
testifies that in the early part of 1929 he would charge P25,000 as fee for
prepared or drew up two mills for Jose probating the will (pp. 406, 440-2, Id.);
B. Suntay at the latter's request, the that Go Toh did not leave the envelope
rough draft of the first will was in his (Exhibit A) either in his house or in his
own handwriting, given to Manuel law office (p. 407, t. s. n., Id.); that Go
Lopez for the final draft or typing and Toh said he wanted to keep it and on
returned to him; that after checking up no occasion did Go Toh leave it to him
the final with the rough draft he tore it (pp. 409, 410, t. s. n., Id.).
and returned the final draft to Manuel
Lopez; that this draft was in favor of all The testimony of Go Toh taken and
the children and the widow (pp. 392-4, heard by Assistant Fiscal F. B. Albert in
449, t. s. n., hearing of 21 February connection with the complaint for estafa
1948); that two months later Jose B. filed against Manuel Suntay for the
Suntay and Manuel Lopez called on alleged snatching of the envelope
him and the former asked him to draw (Exhibit A), corroborates the testimony
up another will favoring more his wife of Alberto Barretto to the effect that only
and child Silvino; that he had the rough one will was signed by Jose B. Suntay
draft of the second will typed (pp. 395, at his office in which he (Alberto
449 t. s. n., Id.) and gave it to Manuel Barretto), Manuel Lopez and Go Toh
Lopez (p. 396, t. s. n., Id.); that he did took part as attesting witnesses (p. 15,
not sign as witness the second will of t. s. n., Exhibit 6). Go Toh testified
32
Jose B. Suntay copied from the before the same assistant fiscal that he
Page
typewritten draft [Exhibit B] (p. 420, t. s. did not leave the will in the hands of
Anastacio Teodoro (p. 26, t. s. n., be established by competent evidence.
Exhibit 6). He said, quoting his own There is no proof on these points. The
words, "Because I can not give him this unverified answers to the questions
envelope even though the contract (on propounded by counsel for the
fees) was signed. I have to bring that appellant to the Consul General of the
document to court or to anywhere else Republic of China set forth in Exhibits
myself." (p. 27, t. s. n., Exhibit 6). R-1 and R-2, objected to by counsel for
the appellee, are inadmissible, because
As to the will claimed to have been apart from the fact that the office of
executed on 4 January 1931 in Amoy, Consul General does not qualify and
China, the law on the point in Rule 78. make the person who holds it an expert
Section 1 of the rule provides: on the Chinese law on procedure in
probate matters, if the same be
Wills proved and allowed in a admitted, the adverse party would be
foreign country, according to the deprived of his right to confront and
laws of such country, may be cross-examine the witness. Consuls are
allowed, filed, and recorded by appointed to attend to trade matters.
the proper Court of First Instance Moreover, it appears that all the
in the Philippines. proceedings had in the municipal
district court of Amoy were for the
Section 2 provides: purpose of taking the testimony of two
attesting witnesses to the will and that
When a copy of such will and the the order of the municipal district court
allowance thereof, duly of Amoy does not purport to probate the
authenticated, is filed with a will. In the absence of proof that the
petition for allowance in the municipal district court of Amoy is a
Philippines, by the executor or probate court and on the Chinese law
other person interested, in the of procedure in probate matters, it may
court having jurisdiction, such be presumed that the proceedings in
court shall fix a time and place for the matter of probating or allowing a will
the hearing, and cause notice in the Chinese courts are the a
thereof to be given as in case of deposition or to a perpetuation of
an original will presented for testimony, and even if it were so it does
allowance. not measure same as those provided
for in our laws on the subject. It is a
Section 3 provides: proceedings in rem and for the validity
of such proceedings personal notice or
If it appears at the hearing that by publication or both to all interested
the will should be allowed in the parties must be made. The interested
Philippines, the court shall so parties in the case were known to
allow it, and a certificate of its reside in the Philippines. The evidence
allowance, signed by the Judge, shows that no such notice was received
and attested by the seal of the by the interested parties residing in the
courts, to which shall be attached Philippines (pp. 474, 476, 481, 503-4, t.
a copy of the will, shall be filed s. n., hearing of 24 February 1948). The
and recorded by the clerk, and proceedings had in the municipal
the will shall have the same effect district court of Amoy, China, may be
as if originally proved and likened toe or come up to the standard
allowed in such court. of such proceedings in the Philippines
for lack of notice to all interested parties
The fact that the municipal district court
and the proceedings were held at the
of Amoy, China, is a probate court must
back of such interested parties.
be proved. The law of China on
procedure in the probate or allowance The order of the municipal district court
of wills must also be proved. The legal of Amoy, China, which reads as follows:
33
probate of Rupertas will and for his appealed to the Court of Appeals
Page
Bernabe dela Serna died on joint wills in the Civil Code (Art. 669,
Page
August 30, 1939, and the Civil Code of 1889 and Art. 818, Civil
Code of the Philippines); but on appeal on a petition for the probate of a will is
by the testamentary heir, the Court of binding upon the whole world (Manalo
Appeals reversed, on the ground that vs. Paredes, 47 Phil. 938; In re Estates
the decree of probate in 1939 was of Johnson, 39 Phil. 156); and public
issued by a court of probate jurisdiction policy and sound practice demand that
and conclusive on the due execution of at the risk of occasional errors
the testament. Further, the Court of judgment of courts should become final
Appeals declared that: at some definite date fixed by
law. Interest rei publicae ut finis set
... . It is true the law (Art. 669, old litium (Dy Cay vs. Crossfield, 38 Phil,
Civil Code; Art. 818, new Civil 521, and other cases cited in 2 Moran,
Code). prohibits the making of a Comments on the Rules of Court (1963
will jointly by two or more persons Ed., p. 322).
either for their reciprocal benefit
or for the benefit of a third Petitioners, as heirs and successors of
person. However, this form of will the late Bernabe de la Cerna, are
has long been sanctioned by use, concluded by the 1939 decree
and the same has continued to admitting his will to probate. The
be used; and when, as in the contention that being void the will
present case, one such joint last cannot be validated, overlooks that the
will and testament has been ultimate decision on Whether an act is
admitted to probate by final order valid or void rests with the courts, and
of a Court of competent here they have spoken with finality
jurisdiction, there seems to be no when the will was probated in 1939. On
alternative except to give effect to this court, the dismissal of their action
the provisions thereof that are not for partition was correct.
contrary to law, as was done in
the case of Macrohon vs. But the Court of Appeals should have
Saavedra, 51 Phil. 267, wherein taken into account also, to avoid future
our Supreme Court gave effect to misunderstanding, that the probate
the provisions of the joint will decree in 1989 could only affect the
therein mentioned, saying, share of the deceased husband,
"assuming that the joint will in Bernabe de la Cerna. It could not
question is valid." include the disposition of the share of
the wife, Gervasia Rebaca, who was
Whence this appeal by the heirs then still alive, and over whose interest
intestate of the deceased husband, in the conjugal properties the probate
Bernabe de la Cerna. court acquired no jurisdiction, precisely
because her estate could not then be in
The appealed decision correctly held issue. Be it remembered that prior to
that the final decree of probate, entered the new Civil Code, a will could not be
in 1939 by the Court of First Instance of probated during the testator's lifetime.
Cebu (when the testator, Bernabe de la
Cerna, died), has conclusive effect as It follows that the validity of the joint will,
to his last will and testament despite the in so far as the estate of the wife was
fact that even then the Civil Code concerned, must be, on her death,
already decreed the invalidity of joint reexamined and adjudicated de novo,
wills, whether in favor of the joint since a joint will is considered a
testators, reciprocally, or in favor of a separate will of each testator. Thus
third party (Art. 669, old Civil Code). regarded, the holding of the court of
The error thus committed by the First Instance of Cebu that the joint will
probate court was an error of law, that is one prohibited by law was correct as
should have been corrected by appeal, to the participation of the deceased
but which did not affect the jurisdiction Gervasia Rebaca in the properties in
of the probate court, nor the conclusive question, for the reasons extensively
39
effect of its final decision, however discussed in our decision in Bilbao vs.
Page
erroneous. A final judgment rendered Bilbao, 87 Phil. 144, that explained the
previous holding in Macrohon vs.
Saavedra, 51 Phil. 267.
40
Page
ARTICLE 821. Of the three instrumental witnesses
thereto, namely Deogracias T.
G.R. No. L-32213 November 26, 1973 Jamaloas Jr., Dr. Francisco Pañares
and Atty. Angel H. Teves, Jr., one of
AGAPITA N. CRUZ, petitioner, them, the last named, is at the same
vs. time the Notary Public before whom the
HON. JUDGE GUILLERMO P. will was supposed to have been
VILLASOR, Presiding Judge of acknowledged. Reduced to simpler
Branch I, Court of First Instance of terms, the question was attested and
Cebu, and MANUEL B. subscribed by at least three credible
LUGAY, respondents. witnesses in the presence of the
testator and of each other, considering
Paul G. Gorrez for petitioner. that the three attesting witnesses must
appear before the notary public to
Mario D. Ortiz for respondent Manuel B. acknowledge the same. As the third
Lugay. 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.
ESGUERRA, J.: On the other hand, private respondent-
appellee, Manuel B. Lugay, who is the
Petition to review on certiorari the
supposed executor of the will, following
judgment of the Court First Instance of
the reasoning of the trial court,
Cebu allowing the probate of the last
maintains that there is substantial
will a testament of the late Valente Z.
compliance with the legal requirement
Cruz. Petitioner-appellant Agapita N.
of having at least three attesting
Cruz, the surviving spouse of the said
witnesses even if the notary public
decease opposed the allowance of the
acted as one of them, bolstering up his
will (Exhibit "E"), alleging the will was
stand with 57 American Jurisprudence,
executed through fraud, deceit,
p. 227 which, insofar as pertinent,
misrepresentation and undue influence;
reads as follows:
that the said instrument was execute
without the testator having been fully It is said that there are,
informed of the content thereof, practical reasons for
particularly as to what properties he upholding a will as against
was disposing and that the supposed the purely technical reason
last will and testament was not that one of the witnesses
executed in accordance with law. required by law signed as
Notwithstanding her objection, the certifying to an
Court allowed the probate of the said acknowledgment of the
last will and testament Hence this testator's signature under
appeal by certiorari which was given oath rather than as
due course. attesting the execution of
the instrument.
The only question presented for
determination, on which the decision of After weighing the merits of the
the case hinges, is whether the conflicting claims of the parties, We are
supposed last will and testament of inclined to sustain that of the appellant
Valente Z. Cruz (Exhibit "E") was that the last will and testament in
executed in accordance with law, question was not executed in
particularly Articles 805 and 806 of the accordance with law. The notary public
new Civil Code, the first requiring at before whom the will was
least three credible witnesses to attest acknowledged cannot be considered as
and subscribe to the will, and the the third instrumental witness since he
second requiring the testator and the cannot acknowledge before himself his
41
[G.R. No. 7647. March 27, 1914. ] This is an appeal from a judgment of
the Court of First Instance of the
DOMINGO CALUYA, Petitioner- Province of Ilocos Norte denying the
Appellant, v. LUCIA probate of a will.
DOMINGO, Respondent-Appellee.
The learned court below based its
Lucas Paredes for Appellant. judgment upon three grounds. The first
one was that, although the testator had
Julio Adiarte for Appellee. signed by mark, it nowhere appeared in
the will who had written the signature or
SYLLABUS that it had been written at his request.
The second, that the witness Antonino
1. WILLS; EXECUTION; SIGNATURE Pandaraoan could not really have
IN BEHALF OF TESTATOR. — Where signed the attestation clause because,
a testator is unable to write and his at the time it was executed, he was
name is signed by another at his attending a session of the municipal
request, in his presence and in that of council of Piddig as a member thereof.
the subscribing witnesses thereto, it is Third: That as to the other witness,
unimportant, so far as the validity of the Segundino Asis, the will mentioned and
will is concerned, whether the person confirmed a sale of land to him by the
who writes the name of the testator testator, and he being thereby an
signs his own or not. The important interested party his testimony could not
thing is that it clearly appear that the be believed.
name of the testator was signed at his
direction in the presence of the We do not believe that any of the
subscribing witnesses and that they objections are well founded and the
attest and subscribe it in his presence judgment refusing its probate must,
and in the presence of each other. therefore, be reversed.
request, it is none the less valid, and will was executed and that the will was
Page
We do not believe that the clear and the remainder could have stood and
would have stood as a valid testament.
46
Page