Civil Law Review I
SUCCESSION SECOND CASE ASSIGNMENT
1. ICAsIANO v ICACIANO L June 30 1964 - CEL
IN THE MATTER OF THE TESTATE ESTATE OF THE
LATE JOSEFA VILLACORTE.
CELSO ICASIANO, petitioner-appellee,
vs.
NATIVIDAD ICASIANO and ENRIQUE ICASIANO,
oppositors-appellants. (1964)
FACTS: A petition for the allowance and admission to
probate of the original as the alleged will of Josefa
Villacorte, deceased, and for the appointment of
petitioner Celso Icasiano as executor was filed.
Natividad Icasiano, and Enrique Icasiano, daughter and
son of the testatrix, filed their opposition. The court
issued the order admitting the will and its duplicate to
probate. From this order, the oppositors appealed
directly to this Court.
The records show that the original of the will, which was
surrendered simultaneously with the filing of the petition
and marked as Exhibit "A" consists of five pages, and
while signed at the end and in every page, it does not
contain the signature of one of the attesting
witnesses, Atty. Jose V. Natividad, on page three (3)
thereof; but the duplicate copy attached to the amended
and supplemental petition and marked as Exhibit "A-1" is
signed by the testatrix and her three attesting witnesses
in each and every page. All other formalities of a notarial
will were complied with. Witness Natividad who
testified on his failure to sign page three (3) of the
original, admits that he may have lifted two pages
instead of one when he signed the same, but
affirmed that page three (3) was signed in his
presence.
ISSUE: Whether or not the failure of one of the
subscribing witnesses to affix his signature to a
page is sufficient to deny probate of the will
RULING: we hold that the inadvertent failure of one
witness to affix his signature to one page of a
testament, due to the simultaneous lifting of two
pages in the course of signing, is not per se
sufficient to justify denial of probate.
RATIO: Impossibility of substitution of this page is
assured not only the fact that the testatrix and two other
witnesses did sign the defective page, but also by its
bearing the coincident imprint of the seal of the notary
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public before whom the testament was ratified by
testatrix and all three witnesses. The law should not be
so strictly and literally interpreted as to penalize the
testatrix on account of the inadvertence of a single
witness over whose conduct she had no control, where
the purpose of the law to guarantee the identity of the
testament and its component pages is sufficiently
attained, no intentional or deliberate deviation existed,
and the evidence on record attests to the full observance
of the statutory requisites. Otherwise, as stated in Vda.
de Gil. vs. Murciano, 49 Off. Gaz. 1459, at 1479
(decision on reconsideration) "witnesses may
sabotage the will by muddling or bungling it or the
attestation clause".
That the failure of witness Natividad to sign page three
(3) was entirely through pure oversight is shown by his
own testimony as well as by the duplicate copy of the
will, which bears a complete set of signatures in every
page. The text of the attestation clause and the
acknowledgment before the Notary Public likewise
evidence that no one was aware of the defect at the
time.
The appellants also argue that since the original of the
will is in existence and available, the duplicate (Exh. A-1)
is not entitled to probate. Since they opposed probate of
original because it lacked one signature in its third page,
it is easily discerned that oppositors-appellants run here
into a dilemma; if the original is defective and invalid,
then in law there is no other will but the duly signed
carbon duplicate (Exh. A-1), and the same is probatable.
If the original is valid and can be probated, then the
objection to the signed duplicate need not be
considered, being superfluous and irrelevant. At any
rate, said duplicate, Exhibit A-1, serves to prove that the
omission of one signature in the third page of the original
testament was inadvertent and not intentional.
That the carbon duplicate, Exhibit A-1, was produced
and admitted without a new publication does not affect
the jurisdiction of the probate court, already conferred by
the original publication of the petition for probate. The
amended petition did not substantially alter the one first
filed, but merely supplemented it by disclosing the
existence of the duplicate, and no showing is made that
new interests were involved (the contents of Exhibit A
and A-1 are admittedly identical); and appellants were
duly notified of the proposed amendment. It is nowhere
proved or claimed that the amendment deprived the
appellants of any substantial right, and we see no error
in admitting the amended petition.

2. Coso v Fernandez 42 Phil - Estelle
FACTS: Testator, Federico Gimenez, is a married man
and a resident of PH who had illicit returns with Rosario
Lopez in Spain. After his return to the PH, she followed
him and remained in close communication with him until
his death. The CFI of Manila set aside a will on the
ground of undue influence alleged to have been exerted
over the mind of a testator. The will gives the tercio de
libre disposicion to an illegitimate son had by the testator
with said Rosario Lopez, and also provides for the
payment to her of nineteen hundred Spanish duros by
way the reimbursement for expenses incurred by her in
taking care of the testator in Barcelona during the years
1909 to 1916, when he is alleged to have suffered from
a severe illness
ISSUE: There is no doubt that she exercised some
influence over him and the only question for our
determination is whether this influence was of such a
character as to vitiate the will
RULING: No. English and American rule in re undue
influence provides that: Mere general or reasonable
influence over a testator is not sufficient to invalidate a
will; to have that effect the influence must be "undue."
The rule as to what constitutes "undue influence", the
influence exerted must be of a kind that so overpowers
and subjugates the mind of the testator as to destroy his
free agency and make his express the will of another,
rather than his own. While the same amount of influence
may become "undue" when exercised by one occupying
an improper and adulterous relation to testator, the mere
fact that some influence is exercised by a person
sustaining that relation does not invalidate a will, unless
it is further shown that the influence destroys the
testator's free agency.
While it is shown that the testator entertained strong
affections for Rosario Lopez, it does not appear that her
influence so overpowered and subjugated his mind as to
"destroy his free agency and make him express the will
of another rather than his own." He was an intelligent
man, a lawyer by profession, appears to have known his
own mind, and may well have been actuated only by a
legitimate sense of duty in making provisions for the
welfare of his illegitimate son and by a proper feeling of
gratitude in repaying Rosario Lopez for the sacrifices
she had made for him. Mere affection, even if
illegitimate, is not undue influence and does not
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invalidate a will. No imposition or fraud has been shown
in the present case. The decision of the lower court
disallowing the will is hereby reversed and it is ordered
that the will be admitted to probate.
3. Macapinlag v alimurong 16 phil 41 - TERE
FACTS: Simplicia de los Santos having died on June 19,
1907, her surviving husband, Gregorio Macapinlac,
submitted her will to the Court of First Instance of
Pampanga for probate. Macario Alimurong, a nephew of
the deceased, opposed the proceedings and requested
that "the will of the deceased, Doña Simplicia de los
Santos, be declared null and void for either of the two
reasons" which he expresses, and which are:
(1) Because the will was not executed and signed by the
witnesses in accordance with the provisions of the Code
of Civil Procedure now in force.
(2) Because it was executed under duress and undue
and illegal influence on the part of the persons benefited
thereby or of a person acting in their interests.
The trial having been held and evidence adduced, the
trial court declared the following facts to be proven that:
after the rough copy was amended by the addition of the
clause, a clear copy thereof was made up and was again
read to the testatrix, who approved it in all of its parts,
and as she was unable to sign, she requested Amando
de Ocampo to sign for her and the latter wrote the
following words with his own hand. "At the request of the
testatrix D.a Simplicia de los Santos, I signed —
Amando de Ocampo." Immediately afterwards and also
in the presence of the same testatrix and of each other,
the witnesses Jose Juico, Gabino Panopio, Eusebio
dayao, Juan Angeles, Jose Torres, Alejo San Pedro, and
Gregorio Sangil signed at the bottom of the will.
In view of the said facts—the lower court concludes—the
will executed by Simplicia de los Santos must be
admitted to probate. The provisions of section 618 of the
Code of Procedure in Civil Actions and Special
Proceedings are fully complied with. The will bears the
name of the testatrix written by Amando de Ocampo in
her presence and by her express direction, and has
been witnessed and signed by more than three
trustworthy witnesses, in the presence of the testatrix
and of each other.

ISSUE: WON the will of the deceased Simplicia de los
Santos was executed with legal formalities.
RULING: Yes. It is shown by the evidence that the will
was wholly written in the handwriting of the subscribing
witness, Gregorio Sangil, and at the foot thereof the
following words appear in a new paragraph and
sufficiently apart:
At the request of the testatrix, Da. Simplicia de los
Santos, I signed.
For Simplicia de los Santos. Amando de
Ocampo.
The trial court concluded that "the posterior insertion of
the words 'For Simplicia de los Santos' can not affect the
validity of the will."
Therefore, it can be considered as nonexistent, and the
other as the only fore of signature by the testatrix, the
authenticity of which has not been impugned or which
the trial court admits as conclusive, and is only one
taken into account in its findings of fact. Although the
said words "For Simplicia de los Santos" be considered
as inserted subsequently, which we neither affirm nor
deny, because a specific determination either way is
unnecessary, in our opinion the signature for the testatrix
as if she signed the will, and also the signature of the
witness who, at her request, wrote the name of the
testatrix and signed for her, affirming the truth of this
fact, attested by the other witnesses then present. And
this fully complies with the provisions of section 618 of
the Act.
4. Pecson v Coronel 45 phil 216 – ATE C
FACTS: On November 28, 1922, the Court of First
Instance of Pampanga probated as the last will and
testament of Dolores Coronel who names as her sole
heir, Lorenzo Pecson, the husband of her niece. The will
states:
“That having no forced heirs, I will all my properties, both
movable and immovable, to my nephew, Lorenzo
Pecson, who is married to my niece Angela Coronel, in
consideration of the good services with he has rendered,
and is rendering to me with good will and
disinterestedness and to my full satisfaction.”
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The relatives of the testatrix by consanguinity questioned
the genuineness of the will on the following grounds:
First, that it was improbable and exceptional that Dolores
Coronel should dispose of her estate to a stranger and
exclude her blood relatives; and Second, that if such will
was not expressed in fact, it was due to extraneous
illegal influence.
The opponents contend that it was not, nor could it be,
the will of the testatrix, because it is not natural nor usual
that she should completely exclude her blood relatives
from her vast estate, in order to will the same to one who
is only a relative by affinity, there appearing no sufficient
motive for such exclusion, inasmuch as until the death of
Dolores Coronel, she maintained very cordial relations
with the aforesaid relatives who had helped her in the
management and direction of her lands. It appears,
however, from the testimony of Attorney Francisco (page
71, transcript of the stenographic notes) that Dolores
Coronel revealed to him her suspicion against some of
her nephews as having been accomplices in a robbery
of which she had been a victim.
As to whether or not Lorenzo Pecson rendered services
to Dolores Coronel, the opponents admit that he
rendered them at least from the year 1914, although
there is proof showing that he rendered such services
long before that time.
The appellants emphasize the fact that family ties in this
country are very strongly knit and that the exclusion of
relative one's estate an exceptional case. It is true that
ties of relationship in the Philippines are very strong, but
we understand that cases of preterition of relatives from
the inheritance are not rare. The liberty to dispose of
one's estate by will when there are no forced heirs is
rendered sacred by the civil Code in force in the
Philippines since 1889. It is so provided in the first
paragraph of article in the following terms:
Any person who was no forced heirs may dispose by will
of all his property or any part of it in favor of any person
qualified to acquire it.
ISSUE/S:
1. WON there was preterition on the part of the nephews
of the testator by instituting Lorenzo Pecson as sole heir.
2. WON the true last will of Dolores Coronel was
expressed in the testament.
HELD:

1. YES. We find, therefore, nothing strange in the
preterition made by Dolores Coronel of her blood
relatives, nor in the designation of Lorenzo Pecson as
her sole beneficiary. Furthermore, although the
institution of the beneficiary here would not seem the
most usual and customary, still this would not be null per
se.
In the absence of any statutory restriction every person
possesses absolute dominion over his property, and
may bestow it upon whomsoever he pleases without
regard to natural or legal claim upon his bounty. If the
testator possesses the requisite capacity to make a will,
and the disposition of his property is not affected by
fraud of undue influence, the will is not rendered invalid
by the fact that it is unnatural, unreasonable, or unjust.
Nothing can prevent the testator from making a will as
eccentric, as injudicious, or as unjust as caprice, frivolity,
or revenge can dictate. However, as has already been
shown, the unreasonable or unjustice of a will may be
considered on the question of testamentary capacity. (40
Cyc., 1079.)
The testamentary capacity of Dolores Coronel is not
disputed in this case
2. YES. Pablo Bartolome read Exhibit A to Dolores
Coronel in her presence and that of the witnesses and
asked her whether the will was in accordance with her
wishes. Dolores Coronel answer that it was, and
requested her attorney, Mr. Francisco, to sign the will for
her, which the attorney accordingly did in the presence
of the witnesses, who in turn signed it before the testatrix
and in the presence of each other.
Upon the filing of the motion for a rehearing on the first
order allowing the probate of the will, the opponents
presented an affidavit of Pablo Bartolome to the effect
that, following instructions of Lorenzo Pecson, he had
informed the testatrix that the contents of the will were
that she entrusted Pecson with the distribution of all her
property among the relatives of the said Dolores. But
during the new trial Pablo Bartolome, in spite of being
present in the court room on the day of the trial, was not
introduced as a witness, without such an omission
having been satisfactorily accounted for.
While it is true that the petitioner was bound to present
Pablo Bartolome, being one of the witnesses who signed
the will, at the second hearing when the probate was
controverted, yet we cannot consider this point against
the appellee for this was not raised in any of the
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assignments of error made by the appellants. (Art. 20,
Rules of the Supreme Court.)
On the other hand, it was incumbent upon the opponents
to present Pablo Bartolome to prove before the court the
statement by him in his affidavit, since it was their duty to
prove what they alleged, which was that Dolores Coronel
had not understood the true contents of the will Exhibit
A. Having suppressed, without explanation, the
testimony of Pablo Bartolome, the presumption is
against the opponents and that is, that such a testimony
would have been adverse had it been produced at the
hearing of the case before the court.
Also, Attorney Francisco is charged with having
employed improper means of making Lorenzo Pecson
appear in the will as sole beneficiary. However, after an
examination of all the proceedings had, we cannot find
anything in the behavior of this lawyer, relative to the
preparation and execution of the will, that would justify
an unfavorable conclusion as to his personal and
professional conduct, nor that he should harbor any
wrongful or fraudulent purpose.
We find nothing censurable in his conduct in advising
Dolores Coronel to make a new will other than the last
one, Exhibit B (in the drawing of which he does not
appear to her intervened), so that the instrument might
be executed with all the new formalities required by the
laws then in force; nor in the preparation of the new will
substantially in accordance with the old one; nor in the
selection of attesting witnesses who were persons other
than the relatives of Dolores Coronel. Knowing, as he
did, that Dolores was excluding her blood relatives from
the inheritance, in spite of her having been asked by him
whether their exclusion was due to a mere inadvertence,
there is a satisfactory explanation, compatible with
honorable conduct, why said attorney should prescind
from such relatives in the attesting of the will, to the end
that no obstacle be placed in the way to the probating
thereof.
The fact that this attorney should presume that Dolores
was to ask him to sign the will for her and that he should
prepare it containing this detail is not in itself fraudulent.
There was in this case reason so to presume, and it
appears that he asked her, through Pablo Bartolome,
whom she wanted to sign the document in her stead.
No imputation can be made to this attorney of any
interest in favoring Lorenzo Pecson in the will, because
the latter was already his client at the execution of said

will. Attorney Francisco denied this fact, which we
cannot consider proven after examining the evidence.
5. Perez v tolete - NIKKO
FACTS: This is a petition for certiorari under Rule 65 of
the Revised Rules of Court to set aside the Order dated
November 19, 1986 of the Regional Trial Court, Branch
18, Bulacan presided by respondent Judge Zotico A.
Tolete, in Special Proceedings No. 1793-M.
Dr. Jose F. Cunanan and his wife, Dr. Evelyn Perez-
Cunanan, who became American citizens, established a
successful medical practice in New York, U.S.A. The
Cunanans lived at No. 2896 Citation Drive, Pompey,
Syracuse, New York, with their children, Jocelyn, 18;
Jacqueline, 16; and Josephine. On August 23, 1979, Dr.
Cunanan executed a last will and testament,
bequeathing to his wife "all the remainder" of his real
and personal property at the time of his death
"wheresoever situated. Four days later, on August 27,
Dr. Evelyn P. Cunanan executed her own last will and
testament containing the same provisions as that of the
will of her husband.
On January 9, 1982, Dr. Cunanan and his entire family
perished when they were trapped by fire that gutted their
home. Thereafter, Dr. Rafael G. Cunanan, Jr. as trustee
and substitute executor of the two wills, filed separate
proceedings for the probate thereof with the Surrogate
Court of the County of Onondaga, New York. On April 7,
these two wills were admitted to probate and letters
testamentary were issued in his favor. On February 21,
1983, Salud Teodoro Perez, the mother of Dr. Evelyn P.
Cunanan, and petitioner filed with the Regional Trial
Court, Malolos, Bulacan a petition for the reprobate of
the two bills ancillary to the probate proceedings in New
York. She also asked that she be appointed the special
administratrix of the estate of the deceased couple
consisting primarily of a farm land in San Miguel,
Bulacan.
On March 9, the Regional Trial Court, Branch 16,
Malolos, Bulacan, presided by Judge Gualberto J. de la
Llana, issued an order, directing the issuance of letters
of special administration in favor of petitioner upon her
filing of a P10,000.00 bond. On May 31, Atty. Federico
Alday filed a notice of appearance as counsel for the
heirs of Dr. Jose F. Cunanan, namely, Dr. Rafael
Cunanan, Sr., Priscilla Cunanan Bautista and others
(Cunanan heirs). Petitioner then filed a counter
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manifestation dated June 13, 1983, asserting: (1) that
the "Cunanan collaterals are neither heirs nor creditors
of the late Dr. Jose F. Cunanan" and therefore, they had
"no legal or proprietary interests to protect" and "no right
to intervene".
On June 23, the probate court granted petitioner's
motion of May 19, 1983. However, on July 21, the
Cunanan heirs filed a motion to nullify the proceedings
and to set aside the appointment of, or to disqualify,
petitioner as special administratrix of the estates of Dr.
Jose F. Cunanan and Dr. Evelyn Perez-Cunanan. In her
opposition, petitioner asserted: (1) that she was the "sole
and only heir" of her daughter, Dr. Evelyn
PerezCunanan to the exclusion of the "Cunanan
collaterals"; hence they were complete strangers to the
proceedings and were not entitled to notice.
February 21, 1984, Judge de la Llana issued an order,
disallowing the reprobate of the two wills, recalling the
appointment of petitioner as special administratrix,
requiring the submission of petitioner of an inventory of
the property received by her as special administratrix
and declaring all pending incidents moot and academic.
On April 30, 1985, the respondent Judge of Branch 18 of
the Regional Trial Court, Malolos, to which the reprobate
case was reassigned, issued an order stating that
"(W)hen the last will and testament . . . was denied
probate," the case was terminated and therefore all
orders theretofore issued should be given finality. The
same Order amended the February 21, 1984 Order by
requiring petitioner to turn over to the estate the
inventoried property. It considered the proceedings for
all intents and purposes, closed.
On August 29, counsel for petitioner, who happens to be
her daughter, Natividad, filed a motion praying that since
petitioner was ailing in Fort Lee, New Jersey, U.S.A. and
therefore incapacitated to act as special administratrix,
she (the counsel) should be named substitute special
administratrix. Thereafter, the Cunanans heirs filed a
motion for reconsideration of the Order of August 19,
1985, alleging lack of notice to their counsel.
On March 31, 1986, respondent Judge to which the case
was reassigned denied the motion for reconsideration
holding that the documents submitted by petitioner
proved "that the wills of the testator domiciled abroad
were properly executed, genuine and sufficient to
possess real and personal property; that letters
testamentary were issued; and that proceedings were
held on a foreign tribunal and proofs taken by a

competent judge who inquired into all the facts and
circumstances and being satisfied with his findings
issued a decree admitting to probate the wills in
question." However, respondent Judge said that the
documents did not establish the law of New York on the
procedure and allowance of wills However, without
waiting for petitioner to adduce the additional evidence,
respondent Judge ruled in his order dated June 20, 1986
that he found "no compelling reason to disturb its ruling
of March 31, 1986" but allowed petitioner to "file anew
the appropriate probate proceedings for each of the
testator" (Records, p. 391).
The Order dated June 20, 1986 prompted petitioner to
file a second motion for reconsideration stating that she
was "ready to submit further evidence on the law
obtaining in the State of New York" and praying that she
be granted "the opportunity to present evidence on what
the law of the State of New York has on the probate and
allowance of wills" (Records, p. 393).
On July 18, respondent Judge denied the motion holding
that to allow the probate of two wills in a single
proceeding "would be a departure from the typical and
established mode of probate where one petition takes
care of one will." He pointed out that even in New York
"where the wills in question were first submitted for
probate, they were dealt with in separate proceedings".
On November 19, respondent Judge issued an order,
denying the motion for reconsideration filed by petitioner
on the grounds that "the probate of separate wills of two
or more different persons even if they are husband and
wife cannot be undertaken in a single petition" (Records,
pp. 376-378).
Hence, petitioner instituted the instant petition, arguing
that the evidence offered at the hearing of April 11, 1983
sufficiently proved the laws of the State of New York on
the allowance of wills, and that the separate wills of the
Cunanan spouses need not be probated in separate
proceedings.
ISSUE: Whether or not the the probate of the wills of the
Cunanan spouses should be made in separate
proceedings. (NO)
RULING: NO. WHEREFORE, the questioned Order is
SET ASIDE. Respondent Judge shall allow petitioner
reasonable time within which to submit evidence needed
for the joint probate of the wills of the Cunanan spouses
and see to it that the brothers and sisters of Dr. Jose F.
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Cunanan are given all notices and copies of all
pleadings pertinent to the probate proceedings.
RATIO: The respective wills of the Cunanan spouses,
who were American citizens, will only be effective in this
country upon compliance with the following provision of
the Civil Code of the Philippines:
Art. 816. The will of an alien who is abroad produces
effect in the Philippines if made with the formalities
prescribed by the law of the place in which he resides, or
according to the formalities observed in his country, or in
conformity with those which this Code prescribes.
Thus, proof that both wills conform with the formalities
prescribed by New York laws or by Philippine laws is
imperative.
The evidence necessary for the reprobate or allowance
of wills which have been probated outside of the
Philippines are as follows: (1) the due execution of the
will in accordance with the foreign laws; (2) the testator
has his domicile in the foreign country and not in the
Philippines; (3) the will has been admitted to probate in
such country; (4) the fact that the foreign tribunal is a
probate court, and (5) the laws of a foreign country on
procedure and allowance of wills for the first and last
requirements, the petitioner submitted all the needed
evidence.
The necessity of presenting evidence on the foreign laws
upon which the probate in the foreign country is based is
impelled by the fact that our courts cannot take judicial
notice of them. Petitioner must have perceived this
omission as in fact she moved for more time to submit
the pertinent procedural and substantive New York laws
but which request respondent Judge just glossed over.
While the probate of a will is a special proceeding
wherein courts should relax the rules on evidence, the
goal is to receive the best evidence of which the matter
is susceptible before a purported will is probated or
denied probate. There is merit in petitioner’s insistence
that the separate wills of the Cunanan spouses should
be probated jointly. Respondent Judge’s view that the
Rules on allowance of wills is couched in singular terms
and therefore should be interpreted to mean that there
should be separate probate proceedings for the wills of
the Cunanan spouses is too literal and simplistic an
approach. Such view overlooks the provisions of Section
2, Rule 1 of the Revised Rules of Court, which advise
that the rules shall be "liberally construed in order to
promote their object and to assist the parties in obtaining

just, speedy, and inexpensive determination of every
action and proceeding."
A literal application of the Rules should be avoided if
they would only result in the delay in the administration
of justice. What the law expressly prohibits is the making
of joint wills either for the testator’s reciprocal benefit or
for the benefit of a third person (Civil Code of the
Philippines, Article 818). In the case at bench, the
Cunanan spouses executed separate wills. Since the
two wills contain essentially the same provisions and
pertain to property which in all probability are conjugal in
nature, practical considerations dictate their joint
probate. As this Court has held a number of times, it will
always strive to settle the entire controversy in a single
proceeding leaving no root or branch to bear the seeds
of future litigation. This petition cannot be completely
resolved without touching on a very glaring fact —
petitioner has always considered herself the sole heir of
Dr. Evelyn Perez Cunanan and because she does not
consider herself an heir of Dr. Jose F. Cunanan, she
noticeably failed to notify his heirs of the filing of the
proceedings. Thus, even in the instant petition, she only
impleaded respondent Judge, forgetting that a judge
whose order is being assailed is merely a nominal or
formal party. The rule that the court having jurisdiction
over the reprobate of a will shall "cause notice thereof to
be given as in case of an original will presented for
allowance" (Revised Rules of Court, Rule 27, Section 2)
means that with regard to notices, the will probated
abroad should be treated as if it were an "original will" or
a will that is presented for probate for the first time.
Accordingly, compliance with Sections 3 and 4 of Rule
76, which require publication and notice by mail or
personally to the "known heirs, legatees, and devisees
of the testator resident in the Philippines" and to the
executor, if he is not the petitioner, are required.
The brothers and sisters of Dr. Jose F. Cunanan,
contrary to petitioner's claim, are entitled to notices of
the time and place for proving the wills. Under Section 4
of Rule 76 of the Revised Rules of Court, the "court shall
also cause copies of the notice of the time and place
fixed for proving the will to be addressed to the
designated or other known heirs, legatees, and devisees
of the testator, . . . "
6. Molo v molo – PEPITO
Facts: Mariano Molo y Legaspi died on January 24,
1941, in the municipality of Pasay, province of Rizal,
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without leaving any forced heir either in the descending
or ascending line. He was survived, however, by his
wife, the herein petitioner Juana Juan Vda. de Molo, and
by his nieces and nephew, the oppositors-appellants,
Luz Gliceria and Cornelio, all surnamed Molo, who were
the legitimate children of Candido Molo y Legaspi,
deceased brother of the testator. Mariano Molo y
Legaspi left two wills, one executed on August 17, 1918
and another executed on June 20, 1939.
On February 7, 1941, Juana Juan Vda. de Molo, filed in
the Court of First Instance of Rizal a petition, seeking the
probate of the will executed by the deceased on June
20, 1939. There being no opposition, the will was
probated. However, upon petition filed by the herein
oppositors, the order of the court admitting the will to
probate was set aside and the case was reopened. After
hearing, at which both parties presented their evidence,
the court rendered decision denying the probate of said
will on the ground that the petitioner failed to prove that
the same was executed in accordance with law.
In view of the disallowance of the will executed on June
20, 1939, the widow on February 24, 1944, filed another
petition for the probate of the will executed by the
deceased on August 17, 1918, in the same court. Again,
the same oppositors filed an opposition to the petition
based on three grounds: (1) that petitioner is now
estopped from seeking the probate of the will of 1918;
(2) that said will has not been executed in the manner
required by law and (3) that the will has been
subsequently revoked.
Issues:
1. Was Molo’s will of 1918 subsequently revoked
by his will of 1939?
2. Assuming that the destruction of the earlier will
was but the necessary consequence of the testator’s
belief that the revocatory clause contained in the
subsequent will was valid and the latter would be given
effect, can the earlier will be admitted to probate?
Held:
1. NO. In the case of Samson vs. Naval, the court
laid down the doctrine that “a subsequent will, containing
a clause revoking a previous will, having been
disallowed, for the reason that it was not executed in
conformity with the provisions of section 618 of the Code
of Civil Procedure as to the making of wills, cannot
produce the effect of annulling the previous will,
inasmuch as said revocatory clause is void.”
Although American authorities on the subject have a
pool of conflicting opinions perhaps because of the

peculiar provisions contained in the statutes adopted by
each State in the subject of revocation of wills, the court
is of the impression from a review and the study of the
pertinent authorities that the doctrine laid down in the
Samson case is still a good law.
There is no evidence which may directly indicate that the
testator deliberately destroyed the original of the 1918
will because of his knowledge of the revocatory clause
contained in the will he executed in 1939. The only
evidence we have is that when the first will was
executed in 1918, Juan Salcedo, who prepared it, gave
the original and copies to the testator himself and
apparently they remained in his possession until he
executed his second will in 1939. And when the 1939 will
was denied probate on November 29, 1943, and
petitioner was asked by her attorney to look for another
will, she found the duplicate copy (Exhibit A) among the
papers or files of the testator. She did not find the
original.
If it can be inferred that the testator deliberately
destroyed the 1918 will because of his knowledge of the
revocatory clause of the 1939 will, and it is true that he
gave a duplicate copy thereof to his wife, the herein
petitioner, the most logical step for the testator to take is
to recall said duplicate copy in order that it may likewise
be destroyed. But this was not done as shown by the
fact that said duplicate copy remained in the possession
of petitioner. It is possible that because of the long lapse
of twenty-one (21) years since the first will was
executed, the original of the will had been misplaced or
lost, and forgetting that there was a copy, the testator
deemed it wise to execute another will containing exactly
the same testamentary dispositions. Whatever may be
the conclusion we may draw from this chain of
circumstances, the stubborn fact is that there is no direct
evidence of voluntary or deliberate destruction of the first
will by the testator. This matter cannot be inference or
conjecture.
2. YES. The earlier will can still be admitted to
probate under the principle of “dependent relative
revocation”. The failure of a new testamentary
disposition upon whose validity the revocation depends,
is equivalent to the non-fulfillment of a suspensive
condition, and hence prevents the revocation of the
original will. But a mere intent to make at some time a
will in the place of that destroyed will not render the
destruction conditional. It must appear that the
revocation is dependent upon the valid execution of a
new will.
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The rule is established that where the act of
destruction is connected with the making of
another will so as fairly to raise the inference
that the testator meant the revocation of the old
to depend upon the efficacy of a new disposition
intended to be substituted, the revocation will be
conditional and dependent upon the efficacy of
the new disposition; and if, for any reason, the
new will intended to be made as a substitute is
inoperative, the revocation fails and the original
will remains in full force. (Gardner, pp. 232,
233.)
This is the doctrine of dependent relative
revocation. The failure of a new testamentary
disposition upon whose validity the revocation
depends, is equivalent to the non-fulfillment of a
suspensive conditions, and hence prevents the
revocation of the original will. But a mere intent
to make at some time a will in the place of that
destroyed will not render the destruction
conditional. It must appear that the revocation is
dependent upon the valid execution of a new
will. (1 Alexander, p. 751; Gardner, p. 253.)
We hold therefore, that even in the supposition that the
destruction of the original will by the testator could be
presumed from the failure of the petitioner to produce it
in court, such destruction cannot have the effect of
defeating the prior will of 1918 because of the fact that
it is founded on the mistaken belief that the will of 1939
has been validly executed and would be given due
effect. The theory on which this principle is predicated
is that the testator did not intend to die intestate. And
this intention is clearly manifest when he executed two
wills on two different occasions and instituted his wife
as his universal heir. There can therefore be no mistake
as to his intention of dying testate.