Documente Academic
Documente Profesional
Documente Cultură
docketed as SP No. 069 (309), praying for the Resolution of the RTC-Kabankalan. The
Page
appellate court found that the RTC-Kabankalan of each sheet. The attestation shall state the
properly admitted to probate the will of Abada. number of sheets or pages used, upon which
Hence, the present recourse by Caponong- the will is written, and the fact that the testator
Noble. signed the will and every page thereof, or
The Issues caused some other person to write his name,
The petition raises the following issues: under his express direction, in the presence of
1. What laws apply to the probate of three witnesses, and the latter witnessed and
the last will of Abada; signed the will and all pages thereof in the
2. Whether the will of Abada requires presence of the testator and of each other.
acknowledgment before a notary Requisites of a Will under the Code of Civil
public;[13] Procedure
3. Whether the will must expressly Under Section 618 of the Code of Civil
state that it is written in a language Procedure, the requisites of a will are the
or dialect known to the testator; following:
4. Whether the will of Abada has an (1) The will must be written in the
attestation clause, and if so, language or dialect known by the
whether the attestation clause testator;
complies with the requirements of (2) The will must be signed by the
the applicable laws; testator, or by the testators name
5. Whether Caponong-Noble is written by some other person in
precluded from raising the issue of his presence, and by his express
whether the will of Abada is written direction;
in a language known to Abada; (3) The will must be attested and
6. Whether evidence aliunde may be subscribed by three or more
resorted to in the probate of the will credible witnesses in the presence
of Abada. of the testator and of each other;
The Ruling of the Court (4) The testator or the person
The Court of Appeals did not err in requested by him to write his
sustaining the RTC-Kabankalan in admitting to name and the instrumental
probate the will of Abada. witnesses of the will must sign
The Applicable Law each and every page of the will on
Abada executed his will on 4 June 1932. the left margin;
The laws in force at that time are the Civil (5) The pages of the will must be
Code of 1889 or the Old Civil Code, and Act numbered correlatively in letters
No. 190 or the Code of Civil placed on the upper part of each
[14]
Procedure which governed the execution of sheet;
wills before the enactment of the New Civil (6) The attestation shall state the
Code. number of sheets or pages used,
The matter in dispute in the present case is upon which the will is written, and
the attestation clause in the will of Abada. the fact that the testator signed the
Section 618 of the Code of Civil Procedure, as will and every page of the will, or
amended by Act No. 2645,[15] governs the form caused some other person to write
of the attestation clause of Abadas his name, under his express
will.[16] Section 618 of the Code of Civil direction, in the presence of three
Procedure, as amended, provides: witnesses, and the witnesses
SEC. 618. Requisites of will. No will, except as witnessed and signed the will and
provided in the preceding section,[17] shall be all pages of the will in the
valid to pass any estate, real or personal, nor presence of the testator and of
charge or affect the same, unless it be written each other.
in the language or dialect known by the testator Caponong-Noble asserts that the will of
and signed by him, or by the testators name Abada does not indicate that it is written in a
written by some other person in his presence, language or dialect known to the testator.
and by his express direction, and attested and Further, she maintains that the will is not
subscribed by three or more credible witnesses acknowledged before a notary public. She cites
in the presence of the testator and of each in particular Articles 804 and 805 of the Old
other. The testator or the person requested by Civil Code, thus:
him to write his name and the instrumental Art. 804. Every will must be in writing and
witnesses of the will, shall also sign, as executed in [a] language or dialect known to
aforesaid, each and every page thereof, on the the testator.
left margin, and said pages shall be numbered
2
words or characters. The unnumbered page is means of authenticating his will. It was a matter
Page
of taste or preference. Both ways are good. A the probate of a will written in Tagalog was
statute requiring a will to be "signed" is ordered although it did not say that the testator
satisfied if the signature is made by the knew that idiom. In fact, there was not even
testator's mark. (De Gala vs. Gonzales and extraneous proof on the subject other than the
Ona, 53 Phil., 108; 28 R. C. L., 117.) fact that the testator resided in a Tagalog
With reference to the second region, from which the court said "a
assignment of error, we do not share the presumption arises that said Maria Tapia knew
opinion that the trial court communicated an the Tagalog dialect.
abuse of discretion in allowing the appellant to The order of the lower court ordering the
offer evidence to prove knowledge of Spanish probate of the last will and testament of Don
by the testator, the language in which the will is Sixto Lopez is affirmed, with costs.
drawn, after the petitioner had rested his case
and after the opponent had moved for
dismissal of the petition on the ground of
insufficiency of evidence. It is within the
discretion of the court whether or not to admit
further evidence after the party offering the
evidence has rested, and this discretion will not
be reviewed except where it has clearly been
abused. (64 C. J., 160.) More, it is within the
sound discretion of the court whether or not it
will allow the case to be reopened for the
further introduction of evidence after a motion
or request for a nonsuit, or a demurrer to the
evidence, and the case may be reopened after
the court has announced its intention as to its
ruling on the request, motion, or demurrer, or
has granted it or has denied the same, or after
the motion has been granted, if the order has
not been written, or entered upon the minutes
or signed. (64 C. J., 164.)
In this jurisdiction this rule has been
followed. After the parties have produced their
respective direct proofs, they are allowed to
offer rebutting evidence only, but, it has been
held, the court, for good reasons, in the
furtherance of justice, may permit them to offer
evidence upon their original case, and its ruling
will not be disturbed in the appellate court
where no abuse of discretion appears.
(Siuliong and Co. vs. Ylagan, 43 Phil., 393; U.
S. vs. Alviar, 36 Phil., 804.) So, generally,
additional evidence is allowed when it is newly
discovered, or where it has been omitted
through inadvertence or mistake, or where the
purpose of the evidence is to the evidence is to
correct evidence previously offered. (I Moran's
Comments on the Rules of Court, 2d ed., 545;
64 C. J., 160-163.) The omission to present
evidence on the testator's knowledge of
Spanish had not been deliberate. It was due to
a misapprehension or oversight.
Although alien to the second
assignment of error, the appellant impugns the
will for its silence on the testator's
understanding of the language used in the
testament. There is no statutory requirement
that such knowledge be expressly stated in the
will itself. It is a matter that may be established
by proof aliunde. This Court so impliedly ruled
6
statute regards of such importance the place written. But the circumstance appearing in the
Page
will itself that same was executed in the city of
Cebu and in the dialect of this locality where
the testatrix was a neighbor is enough, in the
absence of any proof to the contrary, to
presume that she knew this dialect in which
this will is written.
For the foregoing considerations, the
judgment appealed from is hereby affirmed
with costs against the appellants. So ordered.
8
Page
G.R. No. L-28946 January 16, 1929 language than the Igorrote dialect, with a
In re estate of Piraso, deceased. smattering of Ilocano; that is, he did not know
SIXTO ACOP, petitioner-appellant, the English language in which Exhibit A is
vs. written. So that even if such a presumption
SALMING PIRASO, ET AL., opponents- could have been raised in this case it would
appellees. have been wholly contradicted and destroyed.
We consider the other question raised in
ROMUALDEZ, J.: this appeal needless and immaterial to the
This appeal was taken from the adjudication of this case, it having been, as it
judgment of the Court of First Instance of was, proven, that the instrument in question
Benguet, denying the probate of the instrument could not be probated as the last will and
Exhibit A, as the last will and testament of the testament of the deceased Piraso, having been
deceased Piraso. written in the English language with which the
The proponent-appellant assigns the latter was unacquainted.
following as alleged errors of the lower court: Such a result based upon solidly
1. In holding that in order to be valid the established facts would be the same whether
will in question should have been drawn or not it be technically held that said will, in
up in the Ilocano dialect. order to be valid, must be written in the Ilocano
2. In not holding that the testator Piraso dialect; whether or not the Igorrote or Inibaloi
did not know the Ilocano dialect well dialect is a cultivated language and used as a
enough to understand a will drawn up in means of communication in writing, and
said dialect. whether or not the testator Piraso knew the
3. In refusing to admit the will in Ilocano dialect well enough to understand a will
question to probate. written in said dialect. The fact is, we repeat,
The fundamental errors assigned refer chiefly that it is quite certain that the instrument
to the part of the judgment which reads as Exhibit A was written in English which the
follows: supposed testator Piraso did not know, and
The evidence shows that Piraso knew this is sufficient to invalidate said will according
how to speak the Ilocano dialect, to the clear and positive provisions of the law,
although imperfectly, and could make and inevitably prevents its probate.
himself understood in that dialect, and The judgment appealed from is affirmed,
the court is of the opinion that his will with the costs of this instance against the
should have been written in that dialect. appellant.
Such statements were not unnecessary for the
decision of the case, once it has been proved So ordered.
without contradiction, that the said deceased
Piraso did not know English, in which language
the instrument Exhibit A, alleged to be his will,
is drawn. Section 628 of the Code of Civil
Procedure, strictly provides that:
"No will, except as provides in the
preceding section" (as to wills executed by a
Spaniard or a resident of the Philippine Islands,
before the present Code of Civil Procedure
went into effect), "shall be valid to pass any
estate, real or personal, nor charge or affect
the same, unless it be written in the language
or dialect known by the testator," etc.
(Emphasis supplied.) Nor can the presumption
in favor of the will established by this court in
Abangan vs. Abangan (40 Phil., 476), to the
effect that the testator is presumed to know the
dialect of the locality where he resides, unless
there is proof to the contrary, even he invoked
in support of the probate of said document
Exhibit A, as a will, because, in the instant
case, not only is it not proven that English is
the language of the City of Baguio where the
deceased Piraso lived and where Exhibit A
was drawn, but that the record contains
9
These witnesses testified in their own simple on January, 1945, whereas the disputed
and natural way that the deceased signed the signatures appearing in the will were affixed on
Page
October 29, 1945. On the other hand, the having been proven, the probate of the will
standards used by Espinosa in making his must fail. And the wall was disallowed.
comparative study bear dates much closer to There is indeed nothing in the testimony
that of the disputed signatures. Thus, he of the witnesses presented by the petitioner
examined four genuine signatures that were which would indicate that the testatrix knew
affixed on October 16, 1945, other four and spoke the Spanish language used in the
signatures that were affixed in October 1945, preparation of the will in question. But, in our
one on January 2, 1945, on January 24, 1945, opinion, this failure alone does not in itself
and one on September 24 1945, He also suffice to conclude that this important
examined one affixed on March 12, 1941, only requirement of the law has not been complied
for emphasis. The closeness or proximity of the with, it appearing that there is enough evidence
time in which the standards used had been on record which supplies this technical
written to that of the suspected signature or omission. In the first place, we have the
document is very important to bring about an undisputed fact that the deceased was
accurate analysis and conclusion. the selection a mestiza española, was married to a
of the proper standards of comparison is of Spaniard, Recaredo Pando, and made several
paramount importance especially if we trips to Spain. In the second place, we have
consider the age and the state of the health of the very letters submitted as evidence by the
the author of the questioned signatures. a oppositor written in Spanish by the deceased
signature affixed in 1941 may involved possessed the Spanish language, oppositor
characteristics different from those borne by a cannot now be allowed to allege the contrary.
signature affixed in 1945. And this is because These facts give rise to the presumption that
the passing of time and the increase in age the testatrix knew the language in which the
may have a decisive influence in the writing testament has been written, which presumption
characteristics of a person. It for this reasons should stand unless the contrary is proven
that the authorities of the opinion that in order (Abangan vs. Abangan, 40 Phil., 476;
to bring about an accurate comparison and Gonzales vs. Laurel, 46 Phil. 750). And this
analysis, the standard of comparison must be presumption has not been overcome. And
as close as possible in point of time to the finally, we have the very attestation clause of
suspected signature. Such was not followed in the will which states that the testatrix knew and
the study made by Villanueva. But such was possessed the Spanish language. It is true that
observed in the study made by Espinosa. He this matter is not required to be stated in the
followed the standard practice in handwriting attestation clause, but its inclusion can only
analysis. It is for this reason that we hold that mean that the instrumental witnesses wanted
Espinosa's opinion deserves more weight and to make it of record that the deceased knew
consideration. the language in which the will was written.
The standards should, if possible, There is, therefore, no valid reason why the will
have been made by the same time as should be avoided on this ground.
the suspected document. It is preferable 3. The remaining ground which the
that the standards embraced the time of lower court has considered in disallowing the
the origin of the document, so that one will is the fact that the deceased was not of
part comes from the time after the sound and disposing mind when she signed
origin. (Page 423 "Modern Criminal the will, and it reached this conclusion, not
Investigation" by Soderman and O' because of any direct evidence on the matter,
Connell, 1936, Funk and Wagnalls but simply because the deceased signed the
Company, New York and London.) will in a somewhat varied form. On this point
If possible less than five or six the lower court said:
signatures should always be examined El Juzgado es de opinion que
and preferably double that number." aunque se admita que las firmas arriba
(Page 139, Forensic Chemistry and indicadas feuran de Maria Zuñiga Vda.
Scientific Criminal Investigation by de Pando, las mismas revelan que ella
Lucas, 1935, Edward Arnold & Co., no estabe en el pleno de sus facultades
London.) mentales cuando la hicieron firmar el
2. Another ground on which the lower court documento, Exhibit C, pues el hecho de
base the disallowance of the will is the failure que en una sola ocasion la repetida
of the petitioner to prove that the testratrix Maria Zuñiga Vda. de Pando firmo dos
knew and spoke the language in which the will veces, sin escribir su verdadero
in question appears to have been written. nombre, demuestra que ella no se daba
According to the lower court, the law requires cuenta de sus actos por no hallarse
11
that the will should be written in the dialect or mentalmente sana. Si esto es asi, no se
language known to the testator and this fact debe legalizar como testamento y ultima
Page
voluntad de la finada Maria Zuñiga Vda. painstaking and delicate retouching of
de Pando el documento, Exhibit C, the forger, often indicates genuineness.
porque el Articulo 614 de la Ley 190 y el (Page 365, Questioned Documents by
Articulo 12, Reglamentos de los Osborne, 2nd Edition, 1927.)
Tribunales, disponen que solamente
pueden otorgar testamento las personas We are, therefore, of the opinion that the
que al tiempo de su otorgamiento lower court erred in disallowing the will Exhibit
estaban en el pleno goce de sus C.
facultades mentales.
Wherefore, the decision appealed from is
The above conclusion is contrary to hereby reversed. The Court admits the will
what the instrumental witnesses have said on Exhibit C to probate, and remands these case
this point. Cornelio Gonzales de Romero to the lower court for further proceedings, with
stated that she spoke to the deceased before costs against the appellee.
the signing of the will, and judging from the
way she spoke she was of the impression that
the deceased was of sound mind at the time.
To the same effect is the testimony of
Consuelo B. de Catindig. She said that her
impression when the deceased signed the will
was that she could still talk and read, only that
she was weak. In fact she read the will before
signing it. These statements had not been
contradicted. They give an idea of the mental
had not contradicted. They give an idea of
mental condition of the deceased in the will
differ from each other in certain respects, this
is only due to her age and state of health rather
than to a defective mental condition. They do
not reveal a condition of forgery or lack of
genuineness. These differences or
irregularities are common in the writings of old
people and, far from showing lack of
genuineness, are indicative of the age,
sickness, or weak condition of the writer. A
comparison of the three disputed signatures in
the will readily give this impression.
Abbreviated, distorted and
illegible, forms, which are sufficiently
free and rapid, often actually indicate
genuineness rather than forgery even
though they are very unusual and not
exactly like those in the standard writing.
Those who write of difficulty or
hesitation through some physical
infirmity may sometimes produced
broken and unfinished signatures and
these results, which in themselves are
distinctly divergent as compared with
signatures produced under conditions of
strength and health, may forcefully
indicate genuineness . Under conditions
of weakness due to diseased or age,
parts of a genuine signature may be
clumsily written over a second time not
at just the same place and in a way
when clearly shows that the writer either
could not see or was so week and
inattentive as not to care what the result
12
Fernando Grey, Jr. on the same occasion. expression in the body of the will itself or in its
attestation clause that the testator knew
Page
Spanish, the language in which it is written. It is presumption, that the testator might, in fact,
true that there is no statutory provision have known the Spanish language. In
requiring this and that proof thereof may be oppositor's own Exhibit 3 (a letter admittedly
established by evidence aliunde.2 But here, written by the testator) appear the salutation
there is absolutely no such evidence presented "Querido Primo" and the complimentary ending
by the petitioners-appellees. Not even the "Su primo" which are Spanish terms. Having
petition for probate contains any allegation to found that al the formal requisites for the
this effect. No reference to it whatsoever is validity of the will have been satisfactorily
made in the appealed order. establishment, except the language
In some cases, it is true, this lack of requirement, we deem it in the interest of
evidence was considered cured by justice to afford the parties a opportunity to
presumptioin of knowledge of the language or present evidence, if they so desire, on this
dialect used in the will, as where the will is controverted issue.
executed in a certain province or locality, in the Wherefore, let the records of this case
dialect currently used in such provimnce or be remanded to the court of origin for furhter
locality in which the testator is a native or proceedings as above indicated, without costs.
resident, the presumption arises that the
testator knew the dialect so used, in the It is so ordered.
absence of evidence to the contrary; 3 or
where the will is in Spanish, the fact that the
testratrix was a "mestiza española", was
married to a Spaniard, made several trips to
Spain, and some of her letters in her own
handwriting submitted as evidence by the
oppositor, are in Spanish, give rise to the
presumption that she knew the language in
which the will was written, in the absence of
proof to the contrary.4
In the case before us, no such or similar
circumstances exist. On the contrary, there is
evidence that the testator is a Visayan
although residing in San Juan, Rizal at the time
of his death. The will was executed in the City
of Manila. Undoubtedly, it cannot be said, and
there is no evidence, that Spaniards is the
language currently used either in San Juan,
Rizal, or Manila. It follows, therefore, that no
presumption can rise that the testator knew the
Spanish Language.
But petitioner-appellees insist in their
brief that the burden is on the oppositors to
allege and prove that the testator did not know
the Spanish language in the face of the legal
presumption that "the law has been obeyed",
"that a will executed in the Philippines must be
presumed to have been executed in conformity
with the laws of the Philippines".5 and "that
things have happened in accordance with the
ordinary course of nature and the ordinary
habits of life", concluding that it woiuld certainly
be contrary to the ordinary habits of life for a
person to execute his will in a language
unknown to him. This, we believe, is, to use a
colloquial term, being the question. If the
argument of counsel is correct, then every
unopposed will may be probated upon its mere
presentation in court, without need of
producing evidence regarding its execution.
Counsel's statement is its own refutation.
14
never executed a win (pp. 124-125, Record). Marina Paje, that the beneficiary's real name is
Page
Marilyn Sy and that she was not the next of kin attesting witnesses did not appear before him
of the testatrix. and that he notarized the will "just to
Nenita denounced Judge Honrado for accommodate a brother lawyer on the
having acted corruptly in allowing Marina and condition" that said lawyer would bring to the
her cohorts to withdraw from various banks the notary the testatrix and the witnesses but the
deposits Marcelina. lawyer never complied with his commitment.
She also denounced Evangeline S. The Court of Appeals dismissed the
Yuipco, the deputy clerk of court, for not giving petition because Nenita's remedy was an
her access to the record of the probate case by appeal and her failure to do so did not entitle
alleging that it was useless for Nenita to her to resort to the special civil action of
oppose the probate since Judge Honrado certiorari (Suroza vs. Honrado, CA-G.R. No.
would not change his decision. Nenita also SP-08654, May 24, 1981).
said that Evangeline insinuated that if she Relying on that decision, Judge
(Nenita) had ten thousand pesos, the case Honrado filed on November 17, 1981 a motion
might be decided in her favor. Evangeline to dismiss the administrative case for having
allegedly advised Nenita to desist from allegedly become moot and academic.
claiming the properties of the testatrix because We hold that disciplinary action should
she (Nenita) had no rights thereto and, should be taken against respondent judge for his
she persist, she might lose her pension from improper disposition of the testate case which
the Federal Government. might have resulted in a miscarriage of justice
Judge Honrado in his brief comment did because the decedent's legal heirs and not the
not deal specifically with the allegations of the instituted heiress in the void win should have
complaint. He merely pointed to the fact that inherited the decedent's estate.
Nenita did not appeal from the decree of A judge may be criminally liable or
probate and that in a motion dated July 6, 1976 knowingly rendering an unjust judgment or
she asked for a thirty day period within which interlocutory order or rendering a manifestly
to vacate the house of the testatrix. unjust judgment or interlocutory order by
Evangeline S. Yuipco in her affidavit reason of inexcusable negligence or ignorance
said that she never talked with Nenita and that (Arts. 204 to 206, Revised Penal Code).
the latter did not mention Evangeline in her Administrative action may be taken
letter dated September 11, 1978 to President against a judge of the court of first instance for
Marcos. serious misconduct or inefficiency ( Sec. 67,
Evangeline branded as a lie Nenita's Judiciary Law). Misconduct implies malice or a
imputation that she (Evangeline) prevented wrongful intent, not a mere error of judgment.
Nenita from having access to the record of the "For serious misconduct to exist, there must be
testamentary proceeding. Evangeline was not reliable evidence showing that the judicial acts
the custodian of the record. Evangeline " complained of were corrupt or inspired by an
strongly, vehemently and flatly denied" Nenita's intention to violate the law, or were in
charge that she (Evangeline) said that the sum persistent disregard of well-known legal rules"
of ten thousand pesos was needed in order (In re lmpeachment of Horrilleno, 43 Phil. 212,
that Nenita could get a favorable decision. 214-215).
Evangeline also denied that she has any Inefficiency implies negligence,
knowledge of Nenita's pension from the incompetence, ignorance and carelessness. A
Federal Government. judge would be inexcusably negligent if he
The 1978 complaint against Judge failed to observe in the performance of his
Honorado was brought to attention of this duties that diligence, prudence and
Court in the Court Administrator's circumspection which the law requires in the
memorandum of September 25, 1980. The rendition of any public service (In re Climaco,
case was referred to Justice Juan A. Sison of Adm. Case No. 134-J, Jan. 21, 1974, 55 SCRA
the Court of Appeals for investigation, report 107, 119).
and recommendation. He submitted a report In this case, respondent judge, on
dated October 7, 1981. perusing the will and noting that it was written
On December 14, 1978, Nenita filed in in English and was thumbmarked by an
the Court of Appeals against Judge Honrado a obviously illiterate testatrix, could have readily
petition for certiorari and prohibition wherein perceived that the will is void.
she prayed that the will, the decree of probate In the opening paragraph of the will, it
and all the proceedings in the probate case be was stated that English was a language
declared void. "understood and known" to the testatrix. But in
Attached to the petition was the affidavit its concluding paragraph, it was stated that the
17
of Domingo P. Aquino, who notarized the will was read to the testatrix "and translated
will. He swore that the testatrix and the three into Filipino language". (p. 16, Record of
Page
testate case). That could only mean that the
will was written in a language not known to the
illiterate testatrix and, therefore, it is void
because of the mandatory provision of article
804 of the Civil Code that every will must be
executed in a language or dialect known to the
testator. Thus, a will written in English, which
was not known to the Igorot testator, is void
and was disallowed (Acop vs. Piraso, 52 Phil.
660).
The hasty preparation of the will is
shown in the attestation clause and notarial
acknowledgment where Marcelina Salvador
Suroza is repeatedly referred to as the
"testator" instead of "testatrix".
Had respondent judge been careful and
observant, he could have noted not only the
anomaly as to the language of the will but also
that there was something wrong in instituting
the supposed granddaughter as sole heiress
and giving nothing at all to her supposed father
who was still alive.
Furthermore, after the hearing
conducted by respondent deputy clerk of court,
respondent judge could have noticed that the
notary was not presented as a witness.
In spite of the absence of an opposition,
respondent judge should have personally
conducted the hearing on the probate of the
will so that he could have ascertained whether
the will was validly executed.
Under the circumstances, we find his
negligence and dereliction of duty to be
inexcusable.
WHEREFORE, for inefficiency in
handling the testate case of Marcelina S.
Suroza, a fine equivalent to his salary for one
month is imposed on respondent judge (his
compulsory retirement falls on December 25,
1981).
The case against respondent Yuipco
has become moot and academic because she
is no longer employed in the judiciary. Since
September 1, 1980 she has been assistant city
fiscal of Surigao City. She is beyond this
Court's disciplinary jurisdiction (Peralta vs. Firm
Adm. Matter No. 2044-CFI November 21,
1980, 101 SCRA 225).
SO ORDERED.
18
Page