Succession CASES Vol 1

Succession
Full Text of Cases
Volume I
Compiled by Rehne Gibb N. Larena | JD-WT-3 | AY 2019-20 | University of San Carlos

Succession FULL TEXT OF CASES

TABLE OF CONTENTS V. INCORPORATION OF DOCUMENT BY REFERENCE - Art. 827

115
GENERAL PROVISIONS 2 44 Unson v. Abella G.R. No. 17857 June 12, 1922 115
I. CONCEPT OF SUCCESSION 2 VI. CODICILS 118
01 Alvarez v. IAC G.R. No. 68053 May 7, 1990 2 VII. REVOCATION OF WILLS AND TESTAMENTARY
02 Johnny S. Rabadilla vs. CA G.R. No. 113725, June 29, DISPOSITION 118
2000 6 45 Maloto v. CA G.R. No. 76464 Feb 29, 1988 (158 SCRA
451) 118
03 NHA V. Almeida G.R. No. 162784 June 22, 2007 10
04 Estate of Hemady v. Luzon SUrety 100 Phil 389 (1956) Kalaw v. Relova, supra. 120
14 46 Lipana v. Lipana (1940) 70 Phil 365 120
47 Gago v. Mamuyac G.R. No. 26317 Jan 29, 1927 (49 Phil.
TESTAMENTARY SUCCESSION 17 902) 121
II. WILLS 17 48 Molo v. Molo (1951) 90 Phil 37 122
05 Seangio v. Reyes GR Nos. 140371-72 Nov 27, 2006 17 VIII. REPUBLICATION AND REVIVAL OF WILLS - Art. 835, 836,
06 Vitug v. CA 183 SCRA 755 20 837 126
07 Enriquez v. Abadia G.R. No. L-7188 August 9, 1954 22 IX. ALLOWANCE OF WILLS - Art. 838 126
08 Jimenez v. Fernandez G.R. No. L-46364. April 6, 1990 24 49 Heirs of Lasam v. Umengan 510 SCRA 496 126
09 Miciano v. Brimo G.R. No. 22595 Nov 1, 1924 26 50 Seangio v. Reyes 508 SCRA 177 (2006), supra 5 131
10 Cayetano v. Leonidas 129 SCRA 522 27 51 Gallanosa v. Arcangel (1978) 83 SCRA 676 131
III. TESTAMENTARY CAPACITY AND INTENT 30 52 De la Cerna v. Potot 12 SCRA 576 134
IV. SOLEMNITIES OF WILL 30 53 Maninang v. CA G.R. No. L-57848 June 19, 1982 136
11 Abangan v. Abangan (1919) 40 Phil 476 30 54 Pastor v. CA (1983) 122 SCRA 885 138
12 Suroza v. Honrado (1981) 110 SCRA 388 31 55 Nepomuceno v. CA (1985) 139 SCRA 206 143
13 In re: Abangan v. Abangan, G.R. No. 13431, [November
12, 1919), 40 PHIL 476-480) 34
14 Suroza v. Honrado, A.M. No. 2026-CFI, [December 19,
1981] 34
GENERAL PROVISIONS
15 Mercado vs. Lacuesta G.R. No. L-4067 November 29, I. CONCEPT OF SUCCESSION
1951 34
16 Testate Estate of Abada v. Abaja, G. R. No. 147145, 01 Alvarez v. IAC G.R. No. 68053 May 7, 1990
(January 31, 2005) 35 263 Phil. 704
17 Azuela v. CA, GR No. 122880 April 12, 2006 38
18 Barut v. Cabacungan 21 Phil 461 (1912) 44

19 Balonan v. Abellana G.R. No. L-15153 Aug 31, 1960 48
20 Nera v. Rimando G.R. No. L-5971 Feb 27, 1911 49
21 Taboada v. Rosal G.R. No. L-36033 Nov. 5, 1982 50 THIRD DIVISION
22 Margie Santos Mitra vs. Saban-Guevara G.R. No.
[ G.R. No. 68053, May 07, 1990 ]
213994 April 18, 2018 52
23 Cagro v. Cagro (1953) 92 Phil 1032 55
24 Cruz v. Villasor (1973) 54 SCRA 31 55 LAURA ALVAREZ, FLORA ALVAREZ AND RAYMUNDO
25 Javellana v. Ledesma G.R. No. L-7179 97 Phil 258 ALVAREZ, PETITIONERS, VS. THE HONORABLE
(1955) 57 INTERMEDIATE APPELLATE COURT AND JESUS YANES,
26 Guerrero v. Bihis 521 SCRA 394 (2007) 58 ESTELITA YANES, ANTONIO YANES, ROSARIO YANES,
27 Ortega v. Valmonte 478 SCRA 247 (2005) 60 AND ILUMINADO YANES, RESPONDENTS.
28 Garcia v. Vasquez 32 SCRA 489 65
29 Alvarado v. Gaviola 226 SCRA 348 69

30 Gil v. Murciano (1951) 88 Phil 260 72 D E C I S I O N
31 Caneda v. CA (1993) 222 SCRA 781 75
32 Calde v. CA 322 SCRA 376 81
33 Cuevas v. Achacoso G.R. No. L-3497. May 18, 1951 83 FERNAN, C.J.:
34 Lopez v. Lopez, G.R. No. 189984 (Resolution),
[November 12, 2012), 698 PHIL 423-428) 84

35 Gonzales v. CA 90 SCRA 183 86
36 Roxas v. de Jesus G.R. No. L-38338 Jan 28, 1985 94 This is a petition for review on certiorari seeking the reversal of: (a)
37 Kalaw v. Relova G.R. No. L-40207 Sept 28, 1984 (132 the decision of the Fourth Civil Cases Division of the Intermediate
SCRA 237) 96 Appellate Court dated August 31, 1983 in AC-G.R. CV No. 56626
38 Ajero v. CA (1994) 236 SCRA 488 97 entitled "Jesus Yanes et al. v. Dr. Rodolfo Siason et al." affirming the
39 Labrador v. CA 184 SCRA 170 100
decision dated July 8, 1974 of the Court of First Instance of Negros
40 Gan v. Yap G.R. No. L-12190 August 30, 1958 (104 Phil.
509) 102 Occidental insofar as it ordered the petitioners to pay jointly and
41 Rodelas v. Aranza G.R. No. L-58509 Dec 7, 1982 (119 severally the private respondents the sum of P20,000.00
SCRA 16) 105 representing the actual value of Lots Nos. 773-A and 773-B of the
42 Azaola v. Singson (1960) 109 Phil 102 107 cadastral survey of Murcia, Negros Occidental and reversing the
43 Codoy v. Calugay 312 SCRA 333 (1999) 108
subject decision insofar as it awarded the sums of P2,000.00,
Based on Case Assignments of Atty. Gravador By RGL 2 of 147


P5,000.00 and P2,000.00 as actual damages, moral damages and complaint against Fortunato Santiago, Arsenia Vda. de
attorney's fees, respectively and (b) the resolution of said appellate Fuentebella, Alvarez and the Register of Deeds of Negros
court dated May 30, 1984, denying the motion for reconsideration Occidental for the "return" of the ownership and possession of
of its decision. Lots 773 and 823. They also prayed that an accounting of the
The real properties involved are two parcels of land identified as produce of the land from 1944 up to the filing of the complaint be
Lot 773-A and Lot 773-B which were originally known as Lot 773 of made by the defendants, that after court approval of said
the cadastral survey of Murcia, Negros Occidental. Lot 773, with accounting, the share or money equivalent due the plaintiffs be
an area of 156,549 square meters, was registered in the name of delivered to them, and that defendants be ordered to pay plaintiffs
the heirs of Aniceto Yanes under Original Certificate of Title No. P500.00 as damages in the form of attorney's fees.[11]
R0-4858 (8804) issued on October 9, 1917 by the Register of During the pendency in court of said case or on November 13,
Deeds of Occidental Negros (Exh. A). 1961, Alvarez sold Lots 773-A, 773-B and another lot for
Aniceto Yanes was survived by his children, Rufino, Felipe and P25,000.00 to Dr. Rodolfo Siason.[12] Accordingly, TCT Nos. 30919
Teodora. Herein private respondents, Estelita, Iluminado and and 30920 were issued to Siason,[13] who, thereafter, declared the
Jesus, are the children of Rufino who died in 1962 while the other two lots in his name for assessment purposes.[14]
private respondents, Antonio and Rosario Yanes, are children of Meanwhile, on November 6, 1962, Jesus Yanes, in his own behalf
Felipe. Teodora was survived by her child, Jovita (Jovito) Alib. It is
[1]
and in behalf of the other plaintiffs, and assisted by their counsel,
not clear why the latter is not included as a party in this case. filed a manifestation in Civil Case No. 5022 stating that the therein
Aniceto left his children Lots 773 and 823. Teodora cultivated only plaintiffs "renounce, forfeit and quitclaims (sic) any claim, monetary
three hectares of Lot 823 as she could not attend to the other or otherwise, against the defendant Arsenia Vda. de Fuentebella in
portions of the two lots which had a total area of around connection with the above -entitled case".[15]
twenty-four hectares. The record does not show whether the On October 11, 1963, a decision was rendered by the Court of First
children of Felipe also cultivated some portions of the lots but it is Instance of Negros Occidental in Civil Case No. 5022, the
established that Rufino and his children left the province to settle dispositive portion of which reads:
in other places as a result of the outbreak of World War II. "WHEREFORE, judgment is rendered, ordering the defendant
According to Estelita, from the "Japanese time up to peace time", Rosendo Alvarez to reconvey to the plaintiffs lots Nos. 773 and
they did not visit the parcels of land in question but "after 823 of the Cadastral Survey of Murcia, Negros Occidental, now
liberation", when her brother went there to get their share of the covered by Transfer Certificates of Title Nos. T-23165 and T-23166
sugar produced therein, he was informed that Fortunato Santiago, in the name of said defendant, and thereafter to deliver the
Fuentebella (Puentevella) and Alvarez were in possession of Lot possession of said lots to the plaintiffs. No special
773.[2] pronouncement as to costs. SO ORDERED."[16]
It is on record that on May 19, 1938, Fortunato D. Santiago was It will be noted that the above-mentioned manifestation of Jesus
issued Transfer Certificate of Title No. RF 2694 (29797) covering Yanes was not mentioned in the aforesaid decision:
Lot 773-A with an area of 37,818 square meters. TCT No. RF 2694
[3]
However, execution of said decision proved unsuccessful with
describes Lot 773-A as a portion of Lot 773 of the cadastral survey respect to Lot 773. In his return of service dated October 20,
of Murcia and as originally registered under OCT No. 8804. 1965, the sheriff stated that he discovered that Lot 773 had been
The bigger portion of Lot 773 with an area of 118,831 square subdivided into Lots 773-A and 773-B; that they were "in the name"
meters was also registered in the name of Fortunato D. Santiago of Rodolfo Siason who had purchased them from Alvarez, and that
on September 6, 1938 under TCT No. RT-2695 (28192).[4] Said Lot 773 could not be delivered to the plaintiffs as Siason was "not
transfer certificate of title also contains a certification to the effect a party per writ of execution."[17]
that Lot 773-B was originally registered under OCT No. 8804. The execution of the decision in Civil Case No. 5022 having met a
On May 30, 1955, Santiago sold Lots 773-A and 773-B to Monico B. hindrance, herein private respondents (the Yaneses) filed on July
Fuentebella, Jr. in consideration of the sum of P7,000.00.[5] 31, 1965, in the Court of First Instance of Negros Occidental a
Consequently, on February 20, 1956, TCT Nos. T-19291 and petition for the issuance of a new certificate of title and for a
T-19292 were issued in Fuentebella's name. [6]
declaration of nullity of TCT Nos. T-23165 and T-23166 issued to
After Fuentebella's death and during the settlement of his estate, Rosendo Alvarez.[18] Thereafter, the court required Rodolfo Siason
the administratrix thereof (Arsenia R. Vda. de Fuentebella, his wife) to produce the certificates of title covering Lots 773 and 823.
filed in Special Proceedings No. 4373 in the Court of First Instance Expectedly, Siason filed a manifestation stating that he purchased
of Negros Occidental, a motion requesting authority to sell Lots Lots 773-A, 773-B and 658, not Lots 773 and 823, "in good faith
773-A and 773-B. By virtue of a court order granting said motion,
[7] [8]
and for a valuable consideration without any knowledge of any
on March 24, 1958, Arsenia Vda. de Fuentebella sold said lots for lien or encumbrances against said propert(ies)"; that the decision
P6,000.00 to Rosendo Alvarez.[9] Hence, on April 1, 1958, TCT Nos. in the cadastral proceeding[19] could not be enforced against him as
T-23165 and T-23166 covering Lots 773-A and 773-B were he was not a party thereto; and that the decision in Civil Case No.
respectively issued to Rosendo Alvarez. [10]
5022 could neither be enforced against him not only because he
Two years later or on May 26, 1960, Teodora Yanes and the was not a party-litigant therein but also because it had long
children of her brother Rufino, namely, Estelita, Iluminado and become final and executory.[20] Finding said manifestation to be
Jesus, filed in the Court of First Instance of Negros Occidental a well-founded, the cadastral court, in its order of September 4,


1965, nullified its previous order requiring Siason to surrender the cross-claim filed by the defendant Dr. Rodolfo Siason against the
certificates of title mentioned therein.[21] defendants, Laura, Flora and Raymundo, all surnamed Alvarez is
In 1968, the Yaneses filed an ex-parte motion for the issuance of hereby dismissed.D. Defendants, Laura, Flora and Raymundo, all
an alias writ of execution in Civil Case No. 5022. Siason opposed surnamed Alvarez, are hereby ordered to pay the costs of this
it. In its order of September 28, 1968 in Civil Case No. 5022, the
[22]
suit.SO ORDERED."[29]
lower court, noting that the Yaneses had instituted another action The Alvarezes appealed to the then Intermediate Appellate Court
for the recovery of the land in question, ruled that the judgment which, in its decision of August 31, 1983,[30] affirmed the lower
therein could not be enforced against Siason as he was not a party court's decision "insofar as it ordered defendant-appellants to pay
in the case. [23]
jointly and severally the plaintiffs-appellees the sum of P20,000.00
The action filed by the Yaneses on February 21, 1968 was for representing the actual value of Lots Nos. 773-A and 773-B of the
recovery of real property with damages.[24] Named defendants cadastral survey of Murcia, Negros Occidental, and is reversed
therein were Dr. Rodolfo Siason, Laura Alvarez, Flora Alvarez, insofar as it awarded the sums of P2,000.00, P5,000.00 and
Raymundo Alvarez and the Register of Deeds of Negros P2,000.00 as actual damages, moral damages' and attorney's
Occidental. The Yaneses prayed for the cancellation of TCT Nos. fees, respectively."[31]
T-19291 and 19292 issued to Siason (sic) for being null and void; The dispositive portion of said decision reads:
the issuance of a new certificate of title in the name of the Yaneses "WHEREFORE, the decision appealed from is affirmed insofar as it
"in accordance with the sheriff's, return of service dated October ordered defendants-appellants to pay jointly and severally the
20, 1965"; Siason's delivery of possession of Lot 773 to the plaintiffs-appellees the sum of P20,000.00 representing the actual
Yaneses; and if, delivery thereof could not be effected, or, if the value of Lots Nos. 773-A and 773-B of the cadastral survey of
issuance of a new title could not be made, that the Alvarezes and Murcia, Negros Occidental, and is reversed insofar as it awarded
Siason jointly and severally pay the Yaneses the sum of the sums of P2,000.00, P5,000.00 and P2,000.00 as actual
P45,000.00. They also prayed that Siason render an accounting damages, moral damages and attorney's fees, respectively. No
of the fruits of Lot 773 from November 13, 1961 until the filing of the costs.SO ORDERED."[32]
complaint; and that the defendants jointly and severally pay the Finding no cogent reason to grant appellants' motion for
Yaneses moral damages of P20,000.00 and exemplary damages reconsideration, said appellate court denied the same.
of P10,000.00 plus attorney's fees of P4,000.00.[25] Hence, the instant petition.
In his answer to the complaint, Siason alleged that the validity of In their memorandum petitioners raised the following issues:
his titles to Lots 773-A and 773-B, having been passed upon by the 1. Whether or not the defense of prescription and estoppel had
court in its order of September 4, 1965, had become res judicata been timely and properly invoked and raised by the petitioners in
and the Yaneses were estopped from questioning said order.[26] On the lower court.2. Whether or not the cause and/or causes of
their part, the Alvarezes stated in their answer that the Yaneses’ action of the private respondents, if ever there are any, as alleged
cause of action had been "barred by res judicata, statute of in their complaint dated February 21, 1968 which has been
limitation and estoppel." [27]
docketed in the trial court as Civil Case No. 8474 supra, are
In its decision of July 8, 1974, the lower court found that Rodolfo forever barred by statute of limitation and/or prescription of action
Siason, who purchased the properties in question thru an agent as and estoppel.3. Whether or not the late Rosendo Alvarez, a
he was then in Mexico pursuing further medical studies, was a defendant in Civil Case No. 5022, supra, and father of the
buyer in good faith for a valuable consideration. Although the petitioners become a privy and/or party to the waiver (Exhibit
Yaneses were negligent in their failure to place a notice of lis "4"-defendant Siason) in Civil Case No. 8474, supra, where the
pendens "before the Register of Deeds of Negros Occidental in private respondents had unqualifiedly and absolutely waived,
order to protect their rights over the property in question" in Civil renounced and quitclaimed all their alleged rights and interests, if
Case No. 5022, equity demanded that they recover the actual ever there is any, on Lots Nos. 773-A and 773-B of Murcia Cadastre
value of the land because the sale thereof executed between as appearing in their written manifestation dated November 6,
Alvarez and Siason was without court approval.[28] The dispositive 1962 (Exhibits "4:-Siason) which had not been controverted or
portion of the decision states: even impliedly or indirectly denied by them.4. Whether or not the
"IN VIEW OF THE FOREGOING CONSIDERATION, judgment is liability or liabilities of Rosendo Alvarez arising from the sale of
hereby rendered in the following manner:A. The case against the Lots Nos. 773-A and 773-B of Murcia Cadastre to Dr. Rodolfo
defendant Dr. Rodolfo Siason and the Register of Deeds are (sic) Siason, if ever there is any, could be legally passed or transmitted
hereby dismissed.B. The defendants, Laura, Flora and Raymundo, by operations (sic) of law to the petitioners without violation of law
all surnamed Alvarez being the legitimate children of the and due process."[33]
deceased Rosendo Alvarez are hereby ordered to pay jointly and The petition is devoid of merit.
severally the plaintiffs the sum of P20,000 representing the actual As correctly ruled by the Court of Appeals, it is powerless and for
value of Lots Nos. 773-A and 773-B of Murcia Cadastre, Negros that matter so is the Supreme Court, to review the decision in Civil
Occidental; the sum of P2,000.00 as actual damages suffered by Case No. 5022 ordering Alvarez to reconvey the lots in dispute to
the plaintiffs; the sum of P5,000 representing moral damages and herein private respondents. Said decision had long become final
the sum of P2,000 as attorney's fees, all with legal rate of interest and executory and with the possible exception of Dr. Siason, who
from date of the filing of this complaint up to final payment.C. The was not a party to said case, the decision in Civil Case No. 5022 is



the law of the case between the parties thereto. It ended when said Lots Nos. 773-A and 773-B made by Resendo Alvarez to Dr.
Alvarez or his heirs failed to appeal the decision against them.[34] Rodolfo Siason should be the sole liability of the late Rosendo
Thus, it is axiomatic that when a right or fact has been judicially Alvarez or of his estate, after his death.
tried and determined by a court of competent jurisdiction, so long Such contention is untenable for it overlooks the doctrine
as it remains unreversed, it should be conclusive upon the parties obtaining in this jurisdiction on the general transmissibility of the
and those in privity with them in law or estate.[35] As consistently rights and obligations of the deceased to his legitimate children
ruled by this Court, every litigation must come to an end. Access and heirs. Thus, the pertinent provisions of the Civil Code state:
to the court is guaranteed. But there must be a limit to it. "Art. 774. Succession is a mode of acquisition by virtue of which
Once a litigant's right has been adjudicated in a valid final the property, rights and obligations to the extent of the value of
judgment of a competent court, he should not be granted an the inheritance, of a person are transmitted through his death to
unbridled license to return for another try. The prevailing party another or others either by his will or by operation of law."Art. 776.
should not be harassed by subsequent suits. For, if endless The inheritance includes all the property, rights and obligations of
litigation were to be allowed, unscrupulous litigations will multiply a person which are not extinguished by his death."Art. 1311.
in number to the detriment of the administration of justice.[36] Contracts take effect only between the parties, their assigns and
There is no dispute that the rights of the Yaneses to the properties heirs, except in case where the rights and obligations arising from
in question have been finally adjudicated in Civil Case No. 5022. the contract are not transmissible by their nature, or by stipulation
As found by the lower court, from the uncontroverted evidence or by provision of law. The heir is not liable beyond the value of
presented, the Yaneses have been illegally deprived of ownership the property received from the decedent."
and possession of the lots in question.[37]. In fact, Civil Case No. As explained by this Court through Associate Justice J.B.L. Reyes
8474 now under review, arose from the failure to execute Civil in the case of Estate of Hemady vs. Luzon Surety Co., Inc.[41]
Case No. 5022, as subject lots can no longer be reconveyed to "The binding effect of contracts upon the heirs of the deceased
private respondents Yaneses, the same having been sold during party is not altered by the provision of our Rules of Court that
the pendency of the case by the petitioners’ father to Dr. Siason money debts of a deceased must be liquidated and paid from his
who did not know about the controversy, there being no lis estate before the residue is distributed among said heirs (Rule
pendens annotated on the titles. Hence, it was also settled 89). The reason is that whatever payment is thus made from the
beyond question that Dr. Siason is a purchaser-in-good faith. state is ultimately a payment by the heirs or distributees, since the
Under the circumstances, the trial court did not annul the sale amount of the paid claim in fact diminishes or reduces the shares
executed by Alvarez in favor of Dr. Siason on November 11, 1961 that the heirs would have been entitled to receive."Under our law,
but in fact sustained it. The trial court ordered the heirs of therefore, the general rule is that a party's contractual rights and
Rosendo Alvarez who lost in Civil Case No. 5022 to pay the obligations are transmissible to the successors. The rule is a
plaintiffs (private respondents herein) the amount of P20,000.00 consequence of the progressive ‘depersonalization’ of patrimonial
representing the actual value of the subdivided lots in dispute. It rights and duties that, as observed by Victorio Polacco, has
did not order defendant Siason to pay said amount. [38]
characterized the history of these institutions. From the Roman
As to the propriety of the present case, it has long been concept of a relation from person to person, the obligation has
established that the sole remedy of the landowner whose property evolved into a relation from patrimony to patrimony, with the
has been wrongfully or erroneously registered in another's name persons occupying only a representative position, barring those
is to bring an ordinary action in the ordinary court of justice for rare cases where the obligation is strictly personal, i. e., is
reconveyance or, if the property has passed into the hands of an contracted intuitu personae, in consideration of its performance by
innocent purchaser for value, for damages.[39] "It is one thing to a specific person and by no other. x x x"
protect an innocent third party; it is entirely a different matter and Petitioners being the heirs of the late Rosendo Alvarez, they
one devoid of justification if deceit would be rewarded by allowing cannot escape the legal consequences of their father's
the perpetrator to enjoy the fruits of his nefarious deed. As clearly transaction, which gave rise to the present claim for damages.
revealed by the undeviating line of decisions coming from this That petitioners did not inherit the property involved herein is of
Court, such an undesirable eventuality is precisely sought to be no moment because by legal fiction, the monetary equivalent
guarded against" [40]
thereof devolved into the mass of their father's hereditary estate,
The issue on the right to the properties in litigation having been and we have ruled that the hereditary assets are always liable in
finally adjudicated in Civil Case No. 5022 in favor of private their totality for the payment of the debts of the estate.[42]
respondents, it cannot now be reopened in the instant case on the It must, however, be made clear that petitioners are liable only to
pretext that the defenses of prescription and estoppel have not the extent of the value of their inheritance. With this clarification
been properly considered by the lower court. Petitioners could and considering petitioners’ admission that there are other
have appealed in the former case but they did not. They have properties left by the deceased which are sufficient to cover the
therefore foreclosed their rights, if any, and they cannot now be amount adjudged in favor of private respondents, we see no
heard to complain in another case in order to defeat the cogent reason to disturb the findings and conclusions of the Court
enforcement of a judgment which has long become final and of Appeals.
executory. WHEREFORE, subject to the clarification herein above stated, the
Petitioners further contend that the liability arising from the sale of assailed decision of the Court of Appeals is hereby AFFIRMED.



Costs against petitioners. hereinbelow, shall be inherited and acknowledged by the children

SO ORDERED. and spouse of Jorge Rabadilla.

Gutierrez, Jr., Feliciano, and Cortes, JJ., concur. xxx
Bidin, J., no part. I participated in the appealed decision.
FOURTH

02 Johnny S. Rabadilla vs. CA G.R. No. 113725, (a)....It is also my command, in this my addition (Codicil), that should
June 29, 2000 I die and Jorge Rabadilla shall have already received the
390 Phil. 11 ownership of the said Lot No. 1392 of the Bacolod Cadastre,
covered by Transfer Certificate of Title No. RT-4002 (10942), and
also at the time that the lease of Balbinito G. Guanzon of the said
lot shall expire, Jorge Rabadilla shall have the obligation until he
THIRD DIVISION dies, every year to give to Maria Marlina Coscolluela y Belleza,
Seventy (75) (sic) piculs of Export sugar and Twenty Five (25) piculs
[ G.R. No. 113725, June 29, 2000 ]
of Domestic sugar, until the said Maria Marlina Coscolluela y
Belleza dies.
JOHNNY S. RABADILLA,[1] PETITIONER, VS. COURT OF
APPEALS AND MARIA MARLENA[2] COSCOLUELLA Y
FIFTH
BELLEZA VILLACARLOS,RESPONDENTS.

(a) Should Jorge Rabadilla die, his heir to whom he shall give Lot
No. 1392 of the Bacolod Cadastre, covered by Transfer Certificate
D E C I S I O N
of Title No. RT-4002 (10492), shall have the obligation to still give
yearly, the sugar as specified in the Fourth paragraph of his
PURISIMA, J.: testament, to Maria Marlina Coscolluela y Belleza on the month of
December of each year.
This is a petition for review of the decision of the Court of
[3]
Appeals, dated December 23, 1993, in CA-G.R. No. CV-35555, SIXTH
which set aside the decision of Branch 52 of the Regional Trial
Court in Bacolod City, and ordered the defendants-appellees I command, in this my addition (Codicil) that the Lot No. 1392, in
(including herein petitioner), as heirs of Dr. Jorge Rabadilla, to the event that the one to whom I have left and bequeathed, and
reconvey title over Lot No. 1392, together with its fruits and his heir shall later sell, lease, mortgage this said Lot, the buyer,
interests, to the estate of Aleja Belleza. lessee, mortgagee, shall have also the obligation to respect and
deliver yearly ONE HUNDRED (100) piculs of sugar to Maria
The antecedent facts are as follows: Marlina Coscolluela y Belleza, on each month of December,
SEVENTY FIVE (75) piculs of Export and TWENTY FIVE (25) piculs
In a Codicil appended to the Last Will and Testament of testatrix of Domestic, until Maria Marlina shall die, lastly should the buyer,
Aleja Belleza, Dr. Jorge Rabadilla, predecessor-in-interest of the lessee or the mortgagee of this lot, not have respected my
herein petitioner, Johnny S. Rabadilla, was instituted as a devisee command in this my addition (Codicil), Maria Marlina Coscolluela y
of 511, 855 square meters of that parcel of land surveyed as Lot Belleza, shall immediately seize this Lot No. 1392 from my heir and
No. 1392 of the Bacolod Cadastre. The said Codicil, which was the latter's heirs, and shall turn it over to my near desendants, (sic)
duly probated and admitted in Special Proceedings No. 4046 and the latter shall then have the obligation to give the ONE
before the then Court of First Instance of Negros Occidental, HUNDRED (100) piculs of sugar until Maria Marlina shall die. I
contained the following provisions: further command in this my addition (Codicil) that my heir and his
"FIRST heirs of this Lot No. 1392, that they will obey and follow that should
they decide to sell, lease, mortgage, they cannot negotiate with
I give, leave and bequeath the following property owned by me to others than my near descendants and my sister."[4]Pursuant to the
Dr. Jorge Rabadilla resident of 141 P. Villanueva, Pasay City: same Codicil, Lot No. 1392 was transferred to the deceased, Dr.
Jorge Rabadilla, and Transfer Certificate of Title No. 44498 thereto
(a) Lot No. 1392 of the Bacolod Cadastre, covered by Transfer issued in his name.
Certificate of Title No. RT-4002 (10942), which is registered in my
name according to the records of the Register of Deeds of Negros Dr. Jorge Rabadilla died in 1983 and was survived by his wife
Occidental. Rufina and children Johnny (petitioner), Aurora, Ofelia and
Zenaida, all surnamed Rabadilla.
(b) That should Jorge Rabadilla die ahead of me, the
aforementioned property and the rights which I shall set forth On August 21, 1989, Maria Marlena Coscolluela y Belleza



Villacarlos brought a complaint, docketed as Civil Case No. 5588, THOUSAND PESOS (P105,000.00).
before Branch 52 of the Regional Trial Court in Bacolod City,
against the above-mentioned heirs of Dr. Jorge Rabadilla, to That the above-mentioned amount will be paid or delivered on a
enforce the provisions of subject Codicil. The Complaint alleged staggered cash installment, payable on or before the end of
that the defendant-heirs violated the conditions of the Codicil, in December of every sugar crop year, to wit:
that:
1. Lot No. 1392 was mortgaged to the Philippine National Bank and For 1985-86, TWENTY SIX THOUSAND TWO HUNDRED FIFTY
the Republic Planters Bank in disregard of the testatrix's specific (P26,250.00) Pesos, payable on or before December of crop year
instruction to sell, lease, or mortgage only to the near descendants 1988-89;
and sister of the testatrix.
For 1986-87, TWENTY SIX THOUSAND TWO HUNDRED FIFTY
2. Defendant-heirs failed to comply with their obligation to deliver (P26,250.00) Pesos, payable on or before December of crop year
one hundred (100) piculs of sugar (75 piculs export sugar and 25 1989-90;
piculs domestic sugar) to plaintiff Maria Marlena Coscolluela y
Belleza from sugar crop years 1985 up to the filing of the For 1987-88, TWENTY SIX THOUSAND TWO HUNDRED FIFTY
complaint as mandated by the Codicil, despite repeated demands (P26,250.00) Pesos, payable on or before December of crop year
for compliance. 1990-91; and

3. The banks failed to comply with the 6th paragraph of the Codicil For 1988-89, TWENTY SIX THOUSAND TWO HUNDRED FIFTY
which provided that in case of the sale, lease, or mortgage of the (P26,250.00) Pesos, payable on or before December of crop year
property, the buyer, lessee, or mortgagee shall likewise have the 1991-92."[5]However, there was no compliance with the aforesaid
obligation to deliver 100 piculs of sugar per crop year to herein Memorandum of Agreement except for a partial delivery of 50.80
private respondent.The plaintiff then prayed that judgment be piculs of sugar corresponding to sugar crop year 1988 -1989.
rendered ordering defendant-heirs to reconvey/return-Lot No.
1392 to the surviving heirs of the late Aleja Belleza, the On July 22, 1991, the Regional Trial Court came out with a decision,
cancellation of TCT No. 44498 in the name of the deceased, Dr. dismissing the complaint and disposing as follows:
Jorge Rabadilla, and the issuance of a new certificate of title in the "WHEREFORE, in the light of the aforegoing findings, the Court
names of the surviving heirs of the late Aleja Belleza. finds that the action is prematurely filed as no cause of action
against the defendants has as yet arose in favor of plaintiff. While
On February 26, 1990, the defendant-heirs were declared in there maybe the non-performance of the command as mandated
default but on March 28, 1990 the Order of Default was lifted, with exaction from them simply because they are the children of Jorge
respect to defendant Johnny S. Rabadilla, who filed his Answer, Rabadilla, the title holder/owner of the lot in question, does not
accordingly. warrant the filing of the present complaint. The remedy at bar must
fall. Incidentally, being in the category as creditor of the left estate,
During the pre-trial, the parties admitted that: it is opined that plaintiff may initiate the intestate proceedings, if
only to establish the heirs of Jorge Rabadilla and in order to give
On November 15, 1998, the plaintiff (private respondent) and a full meaning and semblance to her claim under the Codicil.
certain Alan Azurin, son-in-law of the herein petitioner who was
lessee of the property and acting as attorney-in-fact of In the light of the aforegoing findings, the Complaint being
defendant-heirs, arrived at an amicable settlement and entered prematurely filed is DISMISSED without prejudice.
into a Memorandum of Agreement on the obligation to deliver one
hundred piculs of sugar, to the following effect: SO ORDERED."[6]On appeal by plaintiff, the First Division of the
"That for crop year 1988-89, the annuity mentioned in Entry No. Court of Appeals reversed the decision of the trial court;
49074 of TCT No. 44489 will be delivered not later than January of ratiocinating and ordering thus:
1989, more specifically, to wit: "Therefore, the evidence on record having established
75 piculs of 'A' sugar, and 25 piculs of 'B' sugar, or then existing in plaintiff-appellant's right to receive 100 piculs of sugar annually out
any of our names, Mary Rose Rabadilla y Azurin or Alan Azurin, of the produce of Lot No. 1392; defendants-appellee's obligation
during December of each sugar crop year, in Azucar Sugar under Aleja Belleza's codicil, as heirs of the modal heir, Jorge
Central; and, this is considered compliance of the annuity as Rabadilla, to deliver such amount of sugar to plaintiff-appellant;
mentioned, and in the same manner will compliance of the annuity defendants-appellee's admitted non-compliance with said
be in the next succeeding crop years.That the annuity above obligation since 1985; and, the punitive consequences enjoined by
stated for crop year 1985-86, 1986-87, and 1987-88, will be both the codicil and the Civil Code, of seizure of Lot No. 1392 and
complied in cash equivalent of the number of piculs as mentioned its reversion to the estate of Aleja Belleza in case of such
therein and which is as herein agreed upon, taking into non-compliance, this Court deems it proper to order the
consideration the composite price of sugar during each sugar crop reconveyance of title over Lot No. 1392 from the estates of Jorge
year, which is in the total amount of ONE HUNDRED FIVE Rabadilla to the estate of Aleja Belleza. However,



plaintiff-appellant must institute separate proceedings to re-open rights are transmitted from the moment of death of the decedent[10]

Aleja Belleza's estate, secure the appointment of an administrator, and compulsory heirs are called to succeed by operation of law.
and distribute Lot No. 1392 to Aleja Belleza's legal heirs in order to The legitimate children and descendants, in relation to their
enforce her right, reserved to her by the codicil, to receive her legitimate parents, and the widow or widower, are compulsory
legacy of 100 piculs of sugar per year out of the produce of Lot No. heirs.[11] Thus, the petitioner, his mother and sisters, as compulsory
1392 until she dies. heirs of the instituted heir, Dr. Jorge Rabadilla, succeeded the
latter by operation of law, without need of further proceedings,
Accordingly, the decision appealed from is SET ASIDE and another and the successional rights were transmitted to them from the
one entered ordering defendants-appellees, as heirs of Jorge moment of death of the decedent, Dr. Jorge Rabadilla.
Rabadilla, to reconvey title over Lot No. 1392, together with its
fruits and interests, to the estate of Aleja Belleza. Under Article 776 of the New Civil Code, inheritance includes all
the property, rights and obligations of a person, not extinguished
[7]
SO ORDERED." Dissatisfied with the aforesaid disposition by the by his death. Conformably, whatever rights Dr. Jorge Rabadilla had
Court of Appeals, petitioner found his way to this Court via the by virtue of subject Codicil were transmitted to his forced heirs, at
present petition, contending that the Court of Appeals erred in the time of his death. And since obligations not extinguished by
ordering the reversion of Lot 1392 to the estate of the testatrix death also form part of the estate of the decedent; corollarily, the
Aleja Belleza on the basis of paragraph 6 of the Codicil, and in obligations imposed by the Codicil on the deceased Dr. Jorge
ruling that the testamentary institution of Dr. Jorge Rabadilla is a Rabadilla, were likewise transmitted to his compulsory heirs upon
modal institution within the purview of Article 882 of the New Civil his death.
Code.
In the said Codicil, testatrix Aleja Belleza devised Lot No. 1392 to
The petition is not impressed with merit. Dr. Jorge Rabadilla, subject to the condition that the usufruct
thereof would be delivered to the herein private respondent every
Petitioner contends that the Court of Appeals erred in resolving year. Upon the death of Dr. Jorge Rabadilla, his compulsory heirs
the appeal in accordance with Article 882 of the New Civil Code succeeded to his rights and title over the said property, and they
on modal institutions and in deviating from the sole issue raised also assumed his (decedent's) obligation to deliver the fruits of the
which is the absence or prematurity of the cause of action. lot involved to herein private respondent. Such obligation of the
Petitioner maintains that Article 882 does not find application as instituted heir reciprocally corresponds to the right of private
there was no modal institution and the testatrix intended a mere respondent over the usufruct, the fulfillment or performance of
simple substitution - i.e. the instituted heir, Dr. Jorge Rabadilla, was which is now being demanded by the latter through the institution
to be substituted by the testatrix's "near descendants" should the of the case at bar. Therefore, private respondent has a cause of
obligation to deliver the fruits to herein private respondent be not action against petitioner and the trial court erred in dismissing the
complied with. And since the testatrix died single and without complaint below.
issue, there can be no valid substitution and such testamentary
provision cannot be given any effect. Petitioner also theorizes that Article 882 of the New Civil Code on
modal institutions is not applicable because what the testatrix
The petitioner theorizes further that there can be no valid intended was a substitution - Dr. Jorge Rabadilla was to be
substitution for the reason that the substituted heirs are not substituted by the testatrix's near descendants should there be
definite, as the substituted heirs are merely referred to as "near noncompliance with the obligation to deliver the piculs of sugar to
descendants" without a definite identity or reference as to who are private respondent.
[8]
the "near descendants" and therefore, under Articles 843 and
845[9] of the New Civil Code, the substitution should be deemed as Again, the contention is without merit.
not written.
Substitution is the designation by the testator of a person or
The contentions of petitioner are untenable. Contrary to his persons to take the place of the heir or heirs first instituted. Under
supposition that the Court of Appeals deviated from the issue substitutions in general, the testator may either (1) provide for the
posed before it, which was the propriety of the dismissal of the designation of another heir to whom the property shall pass in
complaint on the ground of prematurity of cause of action, there case the original heir should die before him/her, renounce the
was no such deviation. The Court of Appeals found that the private inheritance or be incapacitated to inherit, as in a simple
respondent had a cause of action against the petitioner. The substitution,[12] or (2) leave his/her property to one person with the
disquisition made on modal institution was, precisely, to stress that express charge that it be transmitted subsequently to another or
the private respondent had a legally demandable right against the others, as in a fideicommissary substitution.[13] The Codicil sued
petitioner pursuant to subject Codicil; on which issue the Court of upon contemplates neither of the two.
Appeals ruled in accordance with law.
In simple substitutions, the second heir takes the inheritance in
It is a general rule under the law on succession that successional default of the first heir by reason of incapacity, predecease or


renunciation.[14] In the case under consideration, the provisions of law of succession as an institucion sub modo or a modal
subject Codicil do not provide that should Dr. Jorge Rabadilla institution. In a modal institution, the testator states (1) the object of
default due to predecease, incapacity or renunciation, the the institution, (2) the purpose or application of the property left by
testatrix's near descendants would substitute him. What the the testator, or (3) the charge imposed by the testator upon the
Codicil provides is that, should Dr. Jorge Rabadilla or his heirs not heir.[18] A "mode" imposes an obligation upon the heir or legatee
fulfill the conditions imposed in the Codicil, the property referred but it does not affect the efficacy of his rights to the succession.[19]
to shall be seized and turned over to the testatrix's near On the other hand, in a conditional testamentary disposition, the
descendants. condition must happen or be fulfilled in order for the heir to be
entitled to succeed the testator. The condition suspends but does
Neither is there a fideicommissary substitution here and on this not obligate; and the mode obligates but does not suspend.[20] To
point, petitioner is correct. In a fideicommissary substitution, the some extent, it is similar to a resolutory condition.[21]

first heir is strictly mandated to preserve the property and to
transmit the same later to the second heir.[15] In the case under From the provisions of the Codicil litigated upon, it can be gleaned
consideration, the instituted heir is in fact allowed under the unerringly that the testatrix intended that subject property be
Codicil to alienate the property provided the negotiation is with inherited by Dr. Jorge Rabadilla. It is likewise clearly worded that
the near descendants or the sister of the testatrix. Thus, a very the testatrix imposed an obligation on the said instituted heir and
important element of a fideicommissary substitution is lacking; the his successors-in-interest to deliver one hundred piculs of sugar to
obligation clearly imposing upon the first heir the preservation of the herein private respondent, Marlena Coscolluela Belleza, during
the property and its transmission to the second heir. "Without this the lifetime of the latter. However, the testatrix did not make Dr.
obligation to preserve clearly imposed by the testator in his will, Jorge Rabadilla's inheritance and the effectivity of his institution as
[16]
there is no fideicommissary substitution." Also, the near a devisee, dependent on the performance of the said obligation. It
descendants' right to inherit from the testatrix is not definite. The is clear, though, that should the obligation be not complied with,
property will only pass to them should Dr. Jorge Rabadilla or his the property shall be turned over to the testatrix's near
heirs not fulfill the obligation to deliver part of the usufruct to descendants. The manner of institution of Dr. Jorge Rabadilla
private respondent. under subject Codicil is evidently modal in nature because it
imposes a charge upon the instituted heir without, however,
Another important element of a fideicommissary substitution is affecting the efficacy of such institution.
also missing here. Under Article 863, the second heir or the
fideicommissary to whom the property is transmitted must not be Then too, since testamentary dispositions are generally acts of
beyond one degree from the first heir or the fiduciary. A liberality, an obligation imposed upon the heir should not be
fideicommissary substitution is therefore, void if the first heir is not considered a condition unless it clearly appears from the Will itself
[17]
related by first degree to the second heir. In the case under that such was the intention of the testator. In case of doubt, the
scrutiny, the near descendants are not at all related to the institution should be considered as modal and not conditional.[22]

instituted heir, Dr. Jorge Rabadilla.
Neither is there tenability in the other contention of petitioner that
The Court of Appeals erred not in ruling that the institution of Dr. the private respondent has only a right of usufruct but not the right
Jorge Rabadilla under subject Codicil is in the nature of a modal to seize the property itself from the instituted heir because the
institution and therefore, Article 882 of the New Civil Code is the right to seize was expressly limited to violations by the buyer,
provision of law in point. Articles 882 and 883 of the New Civil lessee or mortgagee.
Code provide:
Art. 882. The statement of the object of the institution or the In the interpretation of Wills, when an uncertainty arises on the
application of the property left by the testator, or the charge face of the Will, as to the application of any of its provisions, the
imposed on him, shall not be considered as a condition unless it testator's intention is to be ascertained from the words of the Will,
appears that such was his intention. taking into consideration the circumstances under which it was
made.[23] Such construction as will sustain and uphold the Will in all
That which has been left in this manner may be claimed at once its parts must be adopted.[24]

provided that the instituted heir or his heirs give security for
compliance with the wishes of the testator and for the return of Subject Codicil provides that the instituted heir is under obligation
anything he or they may receive, together with its fruits and to deliver One Hundred (100) piculs of sugar yearly to Marlena
interests, if he or they should disregard this obligation. Belleza Coscuella. Such obligation is imposed on the instituted
heir, Dr. Jorge Rabadilla, his heirs, and their buyer, lessee, or
Art. 883. When without the fault of the heir, an institution referred mortgagee should they sell, lease, mortgage or otherwise
to in the preceding article cannot take effect in the exact manner negotiate the property involved. The Codicil further provides that
stated by the testator, it shall be complied with in a manner most in the event that the obligation to deliver the sugar is not
analogous to and in conformity with his wishes.The institution of an respected, Marlena Belleza Coscuella shall seize the property and
heir in the manner prescribed in Article 882 is what is known in the turn it over to the testatrix's near descendants. The



non-performance of the said obligation is thus with the sanction of

seizure of the property and reversion thereof to the testatrix's near PUNO, C.J.:
descendants. Since the said obligation is clearly imposed by the
testatrix, not only on the instituted heir but also on his This is a Petition for Review on Certiorari under Rule 45 filed by
successors-in-interest, the sanction imposed by the testatrix in the National Housing Authority (NHA) against the Court of
case of non-fulfillment of said obligation should equally apply to Appeals, the Regional Trial Court of San Pedro Laguna, Branch 31,
the instituted heir and his successors-in-interest. and private respondent Segunda Almeida.

Similarly unsustainable is petitioner's submission that by virtue of On June 28, 1959, the Land Tenure Administration (LTA) awarded
the amicable settlement, the said obligation imposed by the to Margarita Herrera several portions of land which are part of the
Codicil has been assumed by the lessee, and whatever obligation Tunasan Estate in San Pedro, Laguna. The award is evidenced by
petitioner had become the obligation of the lessee; that petitioner an Agreement to Sell No. 3787.[1] By virtue of Republic Act No.
is deemed to have made a substantial and constructive 3488, the LTA was succeeded by the Department of Agrarian
compliance of his obligation through the consummated settlement Reform (DAR). On July 31, 1975, the DAR was succeeded by the
between the lessee and the private respondent, and having NHA by virtue of Presidential Decree No. 757.[2] NHA as the
consummated a settlement with the petitioner, the recourse of the successor agency of LTA is the petitioner in this case.
private respondent is the fulfillment of the obligation under the
amicable settlement and not the seizure of subject property. The records show that Margarita Herrera had two children: Beatriz
Herrera-Mercado (the mother of private respondent) and Francisca
Suffice it to state that a Will is a personal, solemn, revocable and Herrera. Beatriz Herrera-Mercado predeceased her mother and
free act by which a person disposes of his property, to take effect left heirs.
after his death.[25] Since the Will expresses the manner in which a
person intends how his properties be disposed, the wishes and Margarita Herrera passed away on October 27, 1971.[3]

desires of the testator must be strictly followed. Thus, a Will cannot
be the subject of a compromise agreement which would thereby On August 22, 1974, Francisca Herrera, the remaining child of the
defeat the very purpose of making a Will. late Margarita Herrera executed a Deed of Self-Adjudication
claiming that she is the only remaining relative, being the sole
WHEREFORE, the petition is hereby DISMISSED and the decision surviving daughter of the deceased. She also claimed to be the
of the Court of Appeals, dated December 23, 1993, in CA-G.R. No. exclusive legal heir of the late Margarita Herrera.
CV-35555 AFFIRMED. No pronouncement as to costs
The Deed of Self-Adjudication was based on a Sinumpaang
SO ORDERED. Salaysay dated October 7, 1960, allegedly executed by Margarita
Herrera. The pertinent portions of which are as follows:
Melo, J., (Chairman), concur in the separate opinion of Justice
Vitug. SINUMPAANG SALAYSAY
SA SINO MAN KINAUUKULAN;
Vitug, J., see separate opinion.
Akong si MARGARITA HERRERA, Filipina, may 83 taong gulang,
Panganiban, J., join the separate opinion of Justice Vitug. balo, kasalukuyang naninirahan at tumatanggap ng sulat sa Nayon
ng San Vicente, San Pedro Laguna, sa ilalim ng panunumpa ay
Gonzaga-Reyes, J., no part. malaya at kusang loob kong isinasaysay at pinagtitibay itong mga
sumusunod:
1. Na ako ay may tinatangkilik na isang lagay na lupang
03 NHA V. Almeida G.R. No. 162784 June 22, 2007
tirikan (SOLAR), tumatayo sa Nayon ng San Vicente, San
552 Phil. 453
Pedro, Laguna, mayroong PITONG DAAN AT PITUMPU'T
ISANG (771) METRONG PARISUKAT ang laki, humigit

kumulang, at makikilala sa tawag na Lote 17, Bloke 55, at
pag-aari ng Land Tenure Administration;
FIRST DIVISION

[ G.R. NO. 162784, June 22, 2007 ] 2. Na ang nasabing lote ay aking binibile, sa pamamagitan ng
paghuhulog sa Land Tenure Administration, at noong ika
NATIONAL HOUSING AUTHORITY, PETITIONER, VS. 30 ng Julio, 1959, ang Kasunduang sa Pagbibile
SEGUNDA ALMEIDA, COURT OF APPEALS, AND RTC OF (AGREEMENT TO SELL No. 3787) ay ginawa at pinagtibay
SAN PEDRO, LAGUNA, BR. 31, RESPONDENTS. sa Lungsod ng Maynila, sa harap ng Notario Publico na si

G. Jose C. Tolosa, at lumalabas sa kaniyang Libro Notarial
D E C I S I O N
bilang Documento No. 13, Pagina No. 4; Libro No. IV, Serie


ng 1959; on July 28, 1959 by the defunct Land Tenure Administration;
protestant is the daughter of the late Beatriz Herrera Mercado who
3. Na dahilan sa ako'y matanda na at walang ano mang was the sister of the protestee; protestee and Beatriz are children
hanap buhay, ako ay nakatira at pinagsisilbihan nang aking of the late Margarita Herrera; Beatriz was the transferee from
anak na si Francisca Herrera, at ang tinitirikan o solar na Margarita of Lot Nos. 45, 46, 47, 48 and 49, Block 50; one of the
nasasabi sa unahan ay binabayaran ng kaniyang sariling lots transferred to Beatriz, e.g. Lot 47, with an area of 148 square
cuarta sa Land Tenure Administration; meters is in the name of the protestant; protestant occupied the
lots in question with the permission of the protestee; protestee is a
4. Na alang-alang sa nasasaysay sa unahan nito, sakaling resident of the Tunasan Homesite since birth; protestee was born
ako'y bawian na ng Dios ng aking buhay, ang lupang on the lots in question; protestee left the place only after marriage
nasasabi sa unahan ay aking ipinagkakaloob sa nasabi but resided in a lot situated in the same Tunasan Homesite; her
kong anak na FRANCISCA HERRERA, Filipina, nasa (protestee) son Roberto Herrera has been occupying the lots in
katamtamang gulang, kasal kay Macario Berroya, question; he has been there even before the death of the late
kasalukuyang naninirahan at tumatanggap ng sulat sa Margarita Herrera; on October 7, 1960, Margarita Herrera
Nayong ng San Vicente, San Pedro Laguna, o sa kaniyang executed a "Sinumpaang Salaysay" whereby she waived or
mga tagapagmana at; transferred all her rights and interest over the lots in question in
favor of the protestee; and protestee had paid the lots in question
5. Na HINIHILING KO sa sino man kinauukulan, na sakaling in full on March 8, 1966 with the defunct Land Tenure
ako nga ay bawian na ng Dios ng aking buhay ay Administration.
KILALANIN, IGALANG at PAGTIBAYIN ang nilalaman sa
pangalan ng aking anak na si Francisca Herrera ang loteng This Office finds that protestee has a better preferential right to
nasasabi sa unahan. purchase the lots in question.[9]Private respondent Almeida
appealed to the Office of the President.[10] The NHA Resolution
SA KATUNAYAN NG LAHAT, ako ay nag-didiit ng hinlalaki was affirmed by the Office of the President in a Decision dated
ng kanan kong kamay sa ibaba nito at sa kaliwang gilid ng January 23, 1987.[11]

unang dahon, dito sa Lungsod ng Maynila, ngayong ika 7
[4]
ng Octubre, 1960. On February 1, 1987, Francisca Herrera died. Her heirs executed an
The said document was signed by two witnesses and notarized. extrajudicial settlement of her estate which they submitted to the
The witnesses signed at the left-hand side of both pages of the NHA. Said transfer of rights was approved by the NHA.[12] The NHA
document with the said document having 2 pages in total. executed several deeds of sale in favor of the heirs of Francisca
[5]
Margarita Herrera placed her thumbmark above her name in the Herrera and titles were issued in their favor.[13] Thereafter, the heirs
second page and at the left-hand margin of the first page of the of Francisca Herrera directed Segunda Mercado-Almeida to leave
document. the premises that she was occupying.

The surviving heirs of Beatriz Herrera-Mercado filed a case for Feeling aggrieved by the decision of the Office of the President
annulment of the Deed of Self-Adjudication before the then Court and the resolution of the NHA, private respondent Segunda
of First Instance of Laguna, Branch 1 in Binan, Laguna (now, Mercado-Almeida sought the cancellation of the titles issued in
Regional Trial Court Branch 25). The case for annulment was favor of the heirs of Francisca. She filed a Complaint on February
[6]
docketed as Civil Case No. B-1263. 8, 1988, for "Nullification of Government Lot's Award," with the

Regional Trial Court of San Pedro, Laguna, Branch 31.
On December 29, 1980, a Decision in Civil Case No. B-1263
(questioning the Deed of Self-Adjudication) was rendered and the In her complaint, private respondent Almeida invoked her
[7]
deed was declared null and void. forty-year occupation of the disputed properties, and re-raised the

fact that Francisca Herrera's declaration of self-adjudication has
During trial on the merits of the case assailing the Deed of been adjudged as a nullity because the other heirs were
Self-Adjudication, Francisca Herrera filed an application with the disregarded. The defendant heirs of Francisca Herrera alleged
NHA to purchase the same lots submitting therewith a copy of the that the complaint was barred by laches and that the decision of
"Sinumpaang Salaysay" executed by her mother. Private the Office of the President was already final and executory.[14] They
respondent Almeida, as heir of Beatriz Herrera-Mercado, also contended that the transfer of purchase of the subject lots is
protested the application. perfectly valid as the same was supported by a consideration and
[8]
In a Resolution dated February 5, 1986, the NHA granted the that Francisca Herrera paid for the property with the use of her
application made by Francisca Herrera, holding that: own money.[15] Further, they argued that plaintiff's occupation of
the property was by mere tolerance and that they had been
From the evidence of the parties and the records of the lots in paying taxes thereon.[16]

question, we gathered the following facts: the lots in question are
portions of the lot awarded and sold to the late Margarita Herrera The Regional Trial Court issued an Order dated June 14, 1988



dismissing the case for lack of jurisdiction.[17] The Court of Appeals her sole and legal heir. It was only when said deed was questioned

in a Decision dated June 26, 1989 reversed and held that the in court by the surviving heirs of Margarita Herrera's other
Regional Trial Court had jurisdiction to hear and decide the case daughter, Beatriz Mercado, that Francisca Herrera filed an
involving "title and possession to real property within its application to purchase the subject lots and presented the
[18]
jurisdiction." The case was then remanded for further "Sinumpaang Salaysay" stating that it is a deed of assignment of
proceedings on the merits. rights.[19]The Court of Appeals ruled that the NHA acted arbitrarily
in awarding the lots to the heirs of Francisca Herrera. It upheld the
A pre-trial was set after which trial ensued. trial court ruling that the "Sinumpaang Salaysay" was not an
assignment of rights but one that involved disposition of property
On March 9, 1998, the Regional Trial Court rendered a Decision which shall take effect upon death. The issue of whether it was a
setting aside the resolution of the NHA and the decision of the valid will must first be determined by probate.
Office of the President awarding the subject lots in favor of
Francisca Herrera. It declared the deeds of sale executed by NHA Petitioner NHA elevated the case to this Court.
in favor of Herrera's heirs null and void. The Register of Deeds of
Laguna, Calamba Branch was ordered to cancel the Transfer Petitioner NHA raised the following issues:
Certificate of Title issued. Attorney's fees were also awarded to A. WHETHER OR NOT THE RESOLUTION OF THE NHA AND
private respondent. THE DECISION OF THE OFFICE OF THE PRESIDENT HAVE
ATTAINED FINALITY, AND IF SO, WHETHER OR NOT THE
The Regional Trial Court ruled that the "Sinumpaang Salaysay" was PRINCIPLE OF ADMINISTRATIVE RES JUDICATA BARS
not an assignment of rights but a disposition of property which THE COURT FROM FURTHER DETERMINING WHO
shall take effect upon death. It then held that the said document BETWEEN THE PARTIES HAS PREFERENTIAL RIGHTS FOR
must first be submitted to probate before it can transfer property. AWARD OVER THE SUBJECT LOTS;

Both the NHA and the heirs of Francisca Herrera filed their B. WHETHER OR NOT THE COURT HAS JURISDICTION TO
respective motions for reconsideration which were both denied on MAKE THE AWARD ON THE SUBJECT LOTS; AND
July 21, 1998 for lack of merit. They both appealed to the Court of
Appeals. The brief for the heirs of Francisca Herrera was denied C. WHETHER OR NOT THE AWARD OF THE SUBJECT LOTS
admission by the appellate court in a Resolution dated June 14, BY THE NHA IS ARBITRARY.
2002 for being a "carbon copy" of the brief submitted by the NHA We rule for the respondents.
and for being filed seventy-nine (79) days late.
Res judicata is a concept applied in review of lower court
On August 28, 2003, the Court of Appeals affirmed the decision of decisions in accordance with the hierarchy of courts. But
the Regional Trial Court, viz: jurisprudence has also recognized the rule of administrative res
There is no dispute that the right to repurchase the subject lots judicata: "the rule which forbids the reopening of a matter once
was awarded to Margarita Herrera in 1959. There is also no judicially determined by competent authority applies as well to the
dispute that Margarita executed a "Sinumpaang Salaysay" on judicial and quasi-judicial facts of public, executive or
October 7, 1960. Defendant NHA claims that the "Sinumpaang administrative officers and boards acting within their jurisdiction as
Salaysay" is, in effect, a waiver or transfer of rights and interest to the judgments of courts having general judicial powers . . . It has
over the subject lots in favor of Francisca Herrera. This Court is been declared that whenever final adjudication of persons
disposed to believe otherwise. After a perusal of the "Sinumpaang invested with power to decide on the property and rights of the
Salaysay" of Margarita Herrera, it can be ascertained from its citizen is examinable by the Supreme Court, upon a writ of error or
wordings taken in their ordinary and grammatical sense that the a certiorari, such final adjudication may be pleaded as res
document is a simple disposition of her estate to take effect after judicata."[20] To be sure, early jurisprudence were already mindful
her death. Clearly the Court finds that the "Sinumpaang Salaysay" that the doctrine of res judicata cannot be said to apply exclusively
is a will of Margarita Herrera. Evidently, if the intention of Margarita to decisions rendered by what are usually understood as courts
Herrera was to merely assign her right over the lots to her without unreasonably circumscribing the scope thereof and that
daughter Francisca Herrera, she should have given her the more equitable attitude is to allow extension of the defense to
"Sinumpaang Salaysay" to the defendant NHA or to Francisca decisions of bodies upon whom judicial powers have been
Herrera for submission to the defendant NHA after the full conferred.
payment of the purchase price of the lots or even prior thereto but
she did not. Hence it is apparent that she intended the In Ipekdjian Merchandising Co., Inc. v. Court of Tax Appeals,[21]
"Sinumpaang Salaysay" to be her last will and not an assignment the Court held that the rule prescribing that "administrative orders
of rights as what the NHA in its resolution would want to make it cannot be enforced in the courts in the absence of an express
appear. The intention of Margarita Herrera was shared no less by statutory provision for that purpose" was relaxed in favor of
Francisca Herrera who after the former's demise executed on quasi-judicial agencies.
August 22, 1974 a Deed of Self-Adjudication claiming that she is



In fine, it should be remembered that quasi-judicial powers will had all the qualifications and none of the disqualifications of a
always be subject to true judicial power–that which is held by the possible awardee. It is the position of the petitioner that private
courts. Quasi-judicial power is defined as that power of respondent possessed all the qualifications and none of the
adjudication of an administrative agency for the "formulation of a disqualifications for lot award and hence the award was not done
[22]
final order." This function applies to the actions, discretion and arbitrarily.
similar acts of public administrative officers or bodies who are
required to investigate facts, or ascertain the existence of facts, The petitioner further argues that assuming that the "Sinumpaang
hold hearings, and draw conclusions from them, as a basis for their Salaysay" was a will, it could not bind the NHA.[31] That, "insofar as
official action and to exercise discretion of a judicial nature.[23] [the] NHA is concerned, it is an evidence that the subject lots were
However, administrative agencies are not considered courts, in indeed transferred by Margarita Herrera, the original awardee, to
their strict sense. The doctrine of separation of powers reposes Francisca Herrera was then applying to purchase the same before
the three great powers into its three (3) branches–the legislative, it."[32]

the executive, and the judiciary. Each department is co-equal and
coordinate, and supreme in its own sphere. Accordingly, the We are not impressed. When the petitioner received the
executive department may not, by its own fiat, impose the "Sinumpaang Salaysay," it should have noted that the effectivity of
judgment of one of its agencies, upon the judiciary. Indeed, under the said document commences at the time of death of the author
the expanded jurisdiction of the Supreme Court, it is empowered of the instrument; in her words "sakaling ako'y bawian na ng Dios
to "determine whether or not there has been grave abuse of ng aking buhay..." Hence, in such period, all the interests of the
discretion amounting to lack or excess of jurisdiction on the part of person should cease to be hers and shall be in the possession of
[24]
any branch or instrumentality of the Government." Courts have her estate until they are transferred to her heirs by virtue of Article
an expanded role under the 1987 Constitution in the resolution of 774 of the Civil Code which provides that:
societal conflicts under the grave abuse clause of Article VIII Art. 774. Succession is a mode of acquisition by virtue of which the
which includes that duty to check whether the other branches of property, rights and obligations to the extent of the value of the
government committed an act that falls under the category of inheritance, of a person are transmitted through his death to
grave abuse of discretion amounting to lack or excess of another or others either by his will or by operation of law.[33]By
jurisdiction.[25] considering the document, petitioner NHA should have noted that

the original applicant has already passed away. Margarita Herrera
Next, petitioner cites Batas Pambansa Blg. 129 or the Judiciary passed away on October 27, 1971.[34] The NHA issued its
Reorganization Act of 1980[26] where it is therein provided that the resolution[35] on February 5, 1986. The NHA gave due course to
Intermediate Appellate Court (now, Court of Appeals) shall the application made by Francisca Herrera without considering
exercise the "exclusive appellate jurisdiction over all final that the initial applicant's death would transfer all her property,
judgments, decisions, resolutions, orders or awards, of the rights and obligations to the estate including whatever interest she
Regional Trial Courts and Quasi- Judicial agencies, has or may have had over the disputed properties. To the extent of
instrumentalities, boards or commissions, except those falling the interest that the original owner had over the property, the
within the jurisdiction of the Supreme Court in accordance with the same should go to her estate. Margarita Herrera had an interest in
[27]
Constitution..." and contends that the Regional Trial Court has no the property and that interest should go to her estate upon her
jurisdiction to rule over awards made by the NHA. demise so as to be able to properly distribute them later to her
heirs–in accordance with a will or by operation of law.
Well-within its jurisdiction, the Court of Appeals, in its decision of
August 28, 2003, already ruled that the issue of the trial court's The death of Margarita Herrera does not extinguish her interest
authority to hear and decide the instant case has already been over the property. Margarita Herrera had an existing Contract to
settled in the decision of the Court of Appeals dated June 26, Sell[36] with NHA as the seller. Upon Margarita Herrera's demise,
1989 (which has become final and executory on August 20, 1989 this Contract to Sell was neither nullified nor revoked. This
[28]
as per entry of judgment dated October 10, 1989). We find no Contract to Sell was an obligation on both parties–Margarita
reason to disturb this ruling. Courts are duty-bound to put an end Herrera and NHA. Obligations are transmissible.[37] Margarita
to controversies. The system of judicial review should not be Herrera's obligation to pay became transmissible at the time of her
misused and abused to evade the operation of a final and death either by will or by operation of law.
[29]
executory judgment. The appellate court's decision becomes
the law of the case which must be adhered to by the parties by If we sustain the position of the NHA that this document is not a
reason of policy.[30] will, then the interests of the decedent should transfer by virtue of

an operation of law and not by virtue of a resolution by the NHA.
Next, petitioner NHA contends that its resolution was grounded on For as it stands, NHA cannot make another contract to sell to other
meritorious grounds when it considered the application for the parties of a property already initially paid for by the decedent.
purchase of lots. Petitioner argues that it was the daughter Such would be an act contrary to the law on succession and the
Francisca Herrera who filed her application on the subject lot; that law on sales and obligations.[38]

it considered the respective application and inquired whether she



When the original buyer died, the NHA should have considered consideration of the Luzon Surety Co.'s of having guaranteed, the
the estate of the decedent as the next "person"[39] likely to stand in various principals in favor of different creditors. The twenty
to fulfill the obligation to pay the rest of the purchase price. The counterbonds, or indemnity agreements, all contained the
opposition of other heirs to the repurchase by Francisca Herrera following stipulations:
should have put the NHA on guard as to the award of the lots. "Premiums.—As consideration for this suretyship, the undersigned
Further, the Decision in the said Civil Case No. B-1263 (questioning jointly and severally, agree to pay the COMPANY the sum of
the Deed of Self-Adjudication) which rendered the deed therein _________________(P_____________) pesos, Philippines '
[40]
null and void should have alerted the NHA that there are other Currency, in advance as premium there of for every
heirs to the interests and properties of the decedent who may _______________ months or fractions thereof, this ___________
claim the property after a testate or intestate proceeding is or any renewal or substitution thereof is in effect.
concluded. The NHA therefore acted arbitrarily in the award of the Indemnity.—The undersigned, jointly and severally, agree at all
lots. times to indemnify the company and keep it indemnified and hold
and save it harmless from and against any and all damages,
We need not delve into the validity of the will. The issue is for the losses, coats, stamps, taxes, penalties, charges, and expenses of
probate court to determine. We affirm the Court of Appeals and whatsoever kind and nature which the company shall or may, at
the Regional Trial Court which noted that it has an element of any time sustain or incur in consequence of having become surety
testamentary disposition where (1) it devolved and transferred upon this bond or any extension, renewal, substitution or alteration
property; (2) the effect of which shall transpire upon the death of thereof made at the instance of the undersigned or any of them or
[41]
the instrument maker. any order executed on behalf of the undersigned or any of them;

and to pay, reimburse and make good to the company, its
IN VIEW WHEREOF, the petition of the National Housing Authority successors and assigns, all sums and amount of money which it or
is DENIED. The decision of the Court of Appeals in CA-G.R. No. its representatives shall pay or cause to be paid, or become liable
68370 dated August 28, 2003, affirming the decision of the to pay, on account of the undersigned or any of them, of
Regional Trial Court of San Pedro, Laguna in Civil Case No. B-2780 whatsoever kind and nature, including 15% of the amount involved
dated March 9, 1998, is hereby AFFIRMED. in the litigation or other matters growing out of or connected
therewith for counsel or attorney's fees, but in no case less
No cost. than P25. It is hereby further agreed that in case of
extension or renewal of this ___________we equally bind
SO ORDERED. ourselves for the payment thereof under the same terms and
conditions as above mentioned without the necessity of executing
Sandoval-Gutierrez, Corona, Azcuna, and Garcia, JJ., concur another indemnity agreement for the purpose and that we hereby
equally waive our right to be notified of any renewal or extension
of this____________ which may be granted under this indemnity
04 Estate of Hemady v. Luzon SUrety 100 Phil
389 (1956) agreement.
100 Phil. 388 Interest on amount paid by the Company.—Any and all sums of
money so paid by the company shall bear interest at the rate of
[ G.R. No. L-8437, November 28, 1956 ]
12% per annum which interest, if not paid, will be accummulated
and added to the capital quarterly order to earn, the same
ESTATE OF K. H. HEMADY, DECEASED, VS. LUZON
interests as the capital and the total sum thereof, the capital and
SURETY CO., INC. CLAIMANT AND APPELLANT.
interest, shall be paid to the Company as soon as the Company
shall have become liable therefore, whether it shall have paid out
D E C I S I O N
such sums of money or any part thereof or not.
* * * * * * *
REYES, J.B.L., J.: Waiver.—It is hereby agreed upon by and between the
undersigned that any question which may arise between them by
Appeal by Luzon Surety Co., Inc., from an order of the Court of reason of this document and which has to be submitted for
First Instance of Rizal, presided by Judge Hermogenes Caluag, decision to Courts of Justice shall be brought before the Court of
dismissing its claim against the Estate of K. H. Hemady (Special competent jurisdiction in the City of Manila, waiving for this
roceeding No. Q-293) for failure to state a cause of action. purpose any other venue. Our right to be notified of the
acceptance and approval of this indemnity agreement is hereby
likewise waived.
The Luzon Surety Co. had filed a claim against the Estate based on * * * * * * *
twenty different indemnity agreements, or counter bonds, each Our Liability Hereunder.—It shall not be necessary for the
subscribed by a distinct principal and by the deceased K. H. Company to bring suit .against the principal upon his default, or to
Hemady, a surety solidary guarantor) in all of them, in exhaust the property of the principal, but the liability hereunder of
the undersigned indemnitor shall be jointly and severally, a primary



one, the same as that of the principal, and shall be exigible to his obligations. Articles 774 and 776 of the New Civil Code (and
immediately upon the occurrence of such default." (Rec. App. pp. Articles 659 and 661 of the preceding one) expressely so provide,
98-102.) thereby confirming Article 1311 already qouted.
The Luzon Surety Co., prayed for allowance, as a contingent claim, "Art. 774.—Succession is a mode of acquisition by virtue of which
of the value of the twenty bonds it had executed in consideration the property, rights and obligations to the extent of the value of
of the counterbonds, and further asked for judgment for the the inheritance, of a person are transmitted through his death to
unpaid premiums and documentary stamps affixed to the bonds, another or others either by his will or by operation of law."
with 12 per cent interest thereon "Art. 776,—The inheritance includes all the property, rights and
Before answer was filed, and upon motion of the administratrix of obligations of a person which are not extinguished by his death."
Hemady's estate, the lower court, by order of September 23, 1953, In Mojica vs. Fernandez, 9 Phil. 403, this Supreme Court ruled:
dismissed the claims of Luzon Surety Co., on two grounds: (1) that "Under the Civil Code the heirs, by virtue of the rights of
the premiums due and cost of documentary stamps were not succession are subrogated to all the rights and obligations of the
contemplated under the indemnity agreements to be a part of the deceased (Article 661) and can not be regarded as third parties
undertaking of the guarantor (Hemady), since they were not with respect to a contract to which the deceased was a party,
liabilities incurred after the execution of the counter-bonds; and (2) touching the estate of the deceased (Barrios vs. Dolor, 2 Phil. 44).
that "whatever losses may occur after Hemady's death, .are not * * * * * * *
chargeable to his estate, because upon his death he ceased to be "The principle on which these decisions rest is not affected by the
guarantor." provisions of the new Code of Civil Procedure, and, in accordance
Taking up the latter point first, since it is the one more far reaching with that principle, the heirs of a deceased person cannot be held
in effects, the reasoning of the court below ran as follows: to be "third persons" in relation to any contracts touching the real
"The administratrix further contends that upon the death of estate of their decedent which comes in to their hands by right of
Hemady, his liability as a guarantor terminated, and therefore, in inheritance; they take such property subject to all the obligations
the absence of a showing that a loss or damage was suffered, the resting thereon in the hands of him from whom they derive their
claim cannot be considered contingent. This Court believes that rights."
there is merit in this contention and finds support in Article 2046 of (See also Galasinao vs. Austria, 51 Off. Gaz. (No. 6) p. 2874 and de
the new Civil Code. It should be noted that a new requirement has Guzman vs. Salak, 91 Phil., 265).
been added for a person to qualify as a guarantor, that is: integrity. The binding effect of contracts upon the heirs of the deceased
As correctly pointed out by the Administratrix, integrity is party is not altered by the provision in our Rules of Court that
something purely personal and is not transmissible. Upon the money debts of a deceased must be liquidated and paid from his
death of Hemady, his integrity was not transmitted to his estate or estate before the residue is distributed among said heirs (Rule 89).
successors. Whatever loss therefore, may occur after Hemady's The reason is that whatever payment is thus made from the estate
death, are not chargeable to his estate because upon his death he is ultimately a payment by the heirs and distributees, since the
ceased to be a guarantor. amount of the paid claim in fact diminishes or reduces the shares
Another clear and strong indication that the surety company has that the heirs would have been entitled to receive.
exclusively relied on the personality, character, honesty and Under our law, therefore, the general rule is that a party's
integrity of the now deceased K. H. Hemady, was the fact that in contractual rights and obligations are transmissible to the
the printed form of the indemnity agreement there is a paragraph successors. The rule is a consequence of the progressive
entitled 'Security by way of first mortgage, which was expressly "depersonalization" of patrimonial rights and duties that, as
waived and renounced by the security company. The security observed by Victorio Polacco, has characterized the history of
company has not demanded from K. H. Hemady to comply with these institutions? From the Roman concept of a relation from
this requirement of giving security by way of firat mortgage. In the person to person, the obligation has evolved into a relation from
supporting papers of the claim presented by Luzon Surety patrimony to patrimony, with the persons occupying only a
Company, no real property was mentioned in the list of properties representative position;, barring those rare cases where the
mortgaged which appears at the back of the indemnity obligation is strictly personal, i.e., is contracted intuitu personae, in
agreement." (Rec. App., pp. 407—408). consideration of its performance by a specific person and by no
We find this reasoning untenable. Under the present Civil Code other. The transition is marked by the disappearance of the
(Article 1311), as well as under the Civil Code of 1889 (Article 1257), imprisonment for debt.
the rule is that:- Of the three exceptions fixed by Article 1311, the nature of the
"Contracts take effect only as between the parties, their assigns obligation of the surety or guarantor does not warrant the
and heirs, except in the case where the rights and obligations conclusion that his peculiar individual qualities are contemplated
arising from the contract are not transmissible by their nature, or as a principal inducement for the contract. What did the creditor
by stipulation or by provision of law." Luzon Surety Co. expect of K. H. Hemady when it accepted the
While in our successional system the responsibility of the heirs for latter as surety in the counterbonds? Nothing but the
the debts of their decedent cannot exceed the value of the reimbursement of the moneys that the Luzon Surety Co. might
inheritance they receive from him, the principle remains intact that have to disburse on account of the obligations of the principal
these heirs succeed not only to the rights of the deceased but also debtors. This reimbursement is a payment of a sum of money,


resulting from an obligation to give; and to the Luzon Surety Co., it contract of guaranty. It is self-evident that once the contract has
was indifferent that the reimbursement should be made by become perfected and binding, the supervening incapacity of the
Hemady himself or by some one else in his behalf, so long as the guarantor would not operate to exonerate him of the eventual
money was paid to it. liability he has contracted; and if that be true of his capacity to
The second exception of Article 1311, p. 1, is intransmissibility by bind himself, it should also be true of his integrity, which is a
stipulation of the parties. Being exceptional and contrary to the quality mentioned in the article alongside the capacity.
general rule, this intransmissibility should not be easily implied, but The foregoing concept is confirmed by the next Article 2057, that
must be expressly established, or at the very least, clearly runs as follows:
inferable from the provisions of the contract itself, and the text of "ART. 2057.—If the guarantor should be convicted in first instance
the agreements sued upon nowhere indicate that they are of a crime involving dishonesty or should become insolvent, the
non-transferable. creditor may demand another who has all the qualifications
"(b) Intransmisibilidad por pacto.—Lo general es la required in the preceding article. The case is excepted where the
transmisibilidad de darechos y obligaciones; le excepcion, la creditor has required and stipulated that a specified person should
intransmisibilidad. Mientras nada se diga en contrario impera el be guarantor."
principio de la transmision, como elemento natural a toda From this article it should be immediately apparent that the
relacion juridical salvo las personalisimas. Asi, para la no supervening dishonesty of the guarantor (that is to say, the
transmision, es menester el pacto expreso, porque si no, lo disappearance of his integrity after he has become bound) does
convenido ehtre partes trasciende a sus herederos. not terminate the contract but merely entitles the creditor to
Siendo estos los continuadores de la personalidad del causante, demand a replacement of the guarantor. But the step remains
sobre ellos recaen los efectos de los vinculos juridicos creados optional in the creditor: it is his right, not his duty; he may waive it if
por sus antecesores, y para evitarld, si asi se quiere, es he chooses, and hold the guarantor to his bargain. Hence Article.
indispensable convention terminante en tal sentido. 2057 of the present Civil Code is incompatible with the trial
Por su esencia, el derecho y la obligacion tienden a ir mas alia court's stand that the requirement of integrity in the guarantor or
de las personas que les dieron vida, y a ejercer presion surety makes the latter's undertaking strictly personal, so linked to
sobre los sucesores de esa persona; cuando no se quiera esto, his individual ity that the guaranty automatically terminates upon
se impone una eetipulacion limitativa expresamente de la his death.
transmisibilidad o de cuyos tirminos claramente se deduzca la The contracts of suretyship entered into by K. H. Hemady in favor
concresion a del concreto a las mismas personas que lo of Luzon Surety Co. not being rendered intransmissible due to the
otorgon." (Scaevola, Oodigo Civil, Tomo XX, p. 541-542) (Italics nature of the undertaking, nor by the stipulations of the contracts
supplied.) themselves, nor by provision of law, his eventual liability
Because under the law (Article 1311), a person who enters into a thereunder necessarily passed upon his death to his heirs. The
contract is deemed to have contracted for himself and hid heirs conT tracts, therefore, give rise to contingent claims provable
and assigns, it is unnecessary for him to expressly stipulate to that against his estate under section 5, Rule 87 (2 Moran, 1952 ed., p.
effect; hence, his failure to do so, is no sign that he intended his 437; Gaskell & Co. vs. Tan Sit, 43 Phil. 810, 814).
bargain to terminate upon his death. Similarly, that the Luzon "The most common example of the continent claim is that which
Surety Co,. did not require bondsman Hemady to execute a arises when a person is bound as surety or guarantor for a
mortgage indicates nothing more than the company's faith and principal who is insolvent or dead. Under the ordinary contract of
confidence in the financial stability of the surety, but not that his suretyship the surety has no claim whatever against his principal
obligation was strictly personal. until he himself pays something by way of satisfaction upon the
The third exception to the transmissibility of obligations under obligation which is secured. When he does this, there instantly
Article 1311 exists when they are "not transmissible by operation of arises in favor of the surety the right to compel the principal to
law". The provision makes reference to those cases where the exonerate the surety. But until the surety has contributed
law expresses that the rights or obligations are extinguished by something to the payment of the debt, . or has performed the
death, as is the case in legal support (Article 300), parental secured obligation in whole or in part, he has no right of action
authority (Article 327), usufruct (Article 603), contracts for a piece against anybody—no claim that could be reduced to judgment.
of work (Article 1726), partnership (Article 1830 and agency (Article (May vs. Vann, 15 Pla., 553; Gibson vs. Mithell, 16 Pla., 519; Maxey
1919). By contract, the articles of the Civil Code that regulate vs. Carter, 10 Yarg. [Tenn.J, 531 Reeves vs. Pulliam, 7 Baxt. [Tenn.],
guaranty or suretyship (Articles 2047 to 2084) contain no provision 119; Ernst vs. Nou, 63 Wis., 134.)"
that the guaranty is extinguished upon the death of the guarantor For defendant administratrix it is averred that the above
or the surety. doctrine refers to a case where the surety files claims against the
The lower court sought to infer such a limitation from Art. 2056, to estate of the principal debtor; and it is urged that .the rule does
the effect that "one who is obliged to furnish a guarantor must not apply to the case before us, where the late Hemady was a
present a person who possesses integrity, capacity to bind himself, surety, not principal debtor. The argument evinces a superficial
and sufficient property to answer for the obligation, which he view of the relations between parties. If under the Gaskell ruling,
guarantees. It will be noted, however, that the law requires these the Luzon Surety Co., as guarantor, could file a contingent claim
qualities to be present only at the time of the perfection of the against the estate of the principal debtors if the latter should die,



there is absolutely no reason why it could not file such a claim preterition, in the consolidated cases, docketed as SP. Proc. No.
against the estate of Hemady, since Hemady is a solidary 98-90870 and SP. Proc. No. 99-93396, and entitled, "In the Matter
co-debtor of his principals. What the Luzon Surety Co. may claim of the Intestate Estate of Segundo C. Seangio v. Alfredo D.
from the estate of a principal debtor it may equally claim from the Seangio, et al." and "In the Matter of the Probate of the Will of
estate of Hemady, since, in view of the existing solidarity, the latter Segundo C. Seangio v. Dy Yieng Seangio, Barbara D. Seangio and
does not even enjoy the benefit of exhaustion of the assets of the Virginia Seangio."
principal debtor.
The foregoing ruling is of course without prejudice to the remedies The facts of the cases are as follows:
of the administratrix against the principal debtors under Articles
2071 and 2067 of the New Civil Code. On September 21, 1988, private respondents filed a petition for the
Our conclusion is that the solidary guarantor's liability is not settlement of the intestate estate of the late Segundo Seangio,
extinguished by his death, and that in such event, the Luzon docketed as Sp. Proc. No. 98-90870 of the RTC, and praying for
Surety Co., had the right to file against the estate a contingent the appointment of private respondent Elisa D. Seangio-Santos as
claim for reimbursement. It becomes unnecessary now to discuss special administrator and guardian ad litem of petitioner Dy Yieng
the estate's liability for premiums and stamp taxes, because Seangio.
irrespective of the solution to this question, the Luzon Surety's
claim did state a cause of action, and its dismissal was erroneous. Petitioners Dy Yieng, Barbara and Virginia, all surnamed Seangio,
Wherefore, the order appealed from is reversed, and the records opposed the petition. They contended that: 1) Dy Yieng is still very
are ordered remanded to the court of origin, with instructions to healthy and in full command of her faculties; 2) the deceased
proceed in accordance with law. Costs against the Segundo executed a general power of attorney in favor of Virginia
Administratrix-Appellee. So ordered. giving her the power to manage and exercise control and
Paras, C. J., Bengzon, Padilla, Montemayor, Bautista Angelo, supervision over his business in the Philippines; 3) Virginia is the
Labrador, Concepcion, Endencia and Felix, JJ., concur. most competent and qualified to serve as the administrator of the
estate of Segundo because she is a certified public accountant;
and, 4) Segundo left a holographic will, dated September 20, 1995,
TESTAMENTARY SUCCESSION disinheriting one of the private respondents, Alfredo Seangio, for
cause. In view of the purported holographic will, petitioners
II. WILLS
averred that in the event the decedent is found to have left a will,
05 Seangio v. Reyes GR Nos. 140371-72 Nov 27, the intestate proceedings are to be automatically suspended and
2006
replaced by the proceedings for the probate of the will.
538 Phil. 40
On April 7, 1999, a petition for the probate of the holographic will
of Segundo, docketed as SP. Proc. No. 99-93396, was filed by
petitioners before the RTC. They likewise reiterated that the
SECOND DIVISION probate proceedings should take precedence over SP. Proc. No.
[ G.R. NOS. 140371-72, November 27, 2006 ] 98-90870 because testate proceedings take precedence and
enjoy priority over intestate proceedings.[2]

DY YIENG SEANGIO,BARBARA D. SEANGIO AND VIRGINIA
D. SEANGIO, PETITIONERS, VS. HON. AMOR A. REYES, IN The document that petitioners refer to as Segundo's holographic
HER CAPACITY AS PRESIDING JUDGE, REGIONAL TRIAL will is quoted, as follows:
COURT, NATIONAL CAPITAL JUDICIAL REGION, BRANCH Kasulatan sa pag-aalis ng mana
21, MANILA, ALFREDO D. SEANGIO, ALBERTO D.
SEANGIO, ELISA D. SEANGIO-SANTOS, VICTOR D.
Tantunin ng sinuman
SEANGIO, ALFONSO D. SEANGIO, SHIRLEY D.

SEANGIO-LIM, BETTY D. SEANGIO-OBAS AND JAMES D.
SEANGIO, RESPONDENTS. Ako si Segundo Seangio Filipino may asawa naninirahan sa 465-A
Flores St., Ermita, Manila at nagtatalay ng maiwanag na pag-iisip at
DECISION
disposisyon ay tahasan at hayagang inaalisan ko ng lahat at
anumang mana ang paganay kong anak na si Alfredo Seangio
AZCUNA, J.: dahil siya ay naging lapastangan sa akin at isan beses siya ng
sasalita ng masama harapan ko at mga kapatid niya na si Virginia
This is a petition for certiorari[1] with application for the issuance of Seangio labis kong kinasama ng loob ko at sasabe rin ni Alfredo
a writ of preliminary injunction and/or temporary restraining order sa akin na ako nasa ibabaw gayon gunit daratin ang araw na ako
seeking the nullification of the orders, dated August 10, 1999 and nasa ilalim siya at siya nasa ibabaw.
October 14, 1999, of the Regional Trial Court of Manila, Branch 21
(the RTC), dismissing the petition for probate on the ground of Labis kong ikinasama ng loob ko ang gamit ni Alfredo ng akin
pagalan para makapagutang na kuarta siya at kanya asawa na si



Merna de los Reyes sa China Bangking Corporation na millon
pesos at hindi ng babayad at hindi ng babayad ito ay nagdulot sa On August 10, 1999, the RTC issued its assailed order, dismissing
aking ng malaking kahihiya sa mga may-ari at stockholders ng the petition for probate proceedings:
China Banking. A perusal of the document termed as "will" by
oppositors/petitioners Dy Yieng Seangio, et al., clearly shows that
At ikinagalit ko pa rin ang pagkuha ni Alfredo at ng kanyang asawa there is preterition, as the only heirs mentioned thereat are Alfredo
na mga custome[r] ng Travel Center of the Philippines na and Virginia. [T]he other heirs being omitted, Article 854 of the
pinagasiwaan ko at ng anak ko si Virginia. New Civil Code thus applies. However, insofar as the widow Dy
Yieng Seangio is concerned, Article 854 does not apply, she not
Dito ako nagalit din kaya gayon ayoko na bilanin si Alfredo ng being a compulsory heir in the direct line.
anak ko at hayanan kong inaalisan ng lahat at anoman mana na si
Alfredo at si Alfredo Seangio ay hindi ko siya anak at hindi siya As such, this Court is bound to dismiss this petition, for to do
makoha mana. otherwise would amount to an abuse of discretion. The Supreme
Court in the case of Acain v. Intermediate Appellate Court [155
Nila[g]daan ko ngayon ika 20 ng Setyembre 1995 sa longsod ng SCRA 100 (1987)] has made its position clear: "for ... respondents to
[3]
Manila sa harap ng tatlong saksi. have tolerated the probate of the will and allowed the case to

progress when, on its face, the will appears to be intrinsically void
(signed) ... would have been an exercise in futility. It would have meant a
Segundo Seangio waste of time, effort, expense, plus added futility. The trial court
could have denied its probate outright or could have passed upon
Nilagdaan sa harap namin the intrinsic validity of the testamentary provisions before the
extrinsic validity of the will was resolved (underscoring supplied).
(signed)
Dy Yieng Seangio (signed) WHEREFORE, premises considered, the Motion to Suspend
Unang Saksi ikalawang saksi Proceedings is hereby DENIED for lack of merit. Special
Proceedings No. 99-93396 is hereby DISMISSED without
(signed) pronouncement as to costs.
ikatlong saksi
On May 29, 1999, upon petitioners' motion, SP. Proc. No. 98-90870 SO ORDERED.[7]Petitioners' motion for reconsideration was denied
and SP. Proc. No. 99-93396 were consolidated.[4] by the RTC in its order dated October 14, 1999.

On July 1, 1999, private respondents moved for the dismissal of the Petitioners contend that:
[5]
probate proceedings primarily on the ground that the document THE RESPONDENT JUDGE ACTED IN EXCESS OF HER
purporting to be the holographic will of Segundo does not contain JURISDICTION OR WITH GRAVE ABUSE OF DISCRETION
any disposition of the estate of the deceased and thus does not AMOUNTING TO LACK OR EXCESS OF JURISDICTION AND
meet the definition of a will under Article 783 of the Civil Code. DECIDED A QUESTION OF LAW NOT IN ACCORD WITH LAW AND
According to private respondents, the will only shows an alleged JURISPRUDENCE IN ISSUING THE QUESTIONED ORDERS, DATED
act of disinheritance by the decedent of his eldest son, Alfredo, 10 AUGUST 1999 AND 14 OCTOBER 1999 (ATTACHMENTS "A"
and nothing else; that all other compulsory heirs were not named AND "B" HEREOF) CONSIDERING THAT:
nor instituted as heir, devisee or legatee, hence, there is
preterition which would result to intestacy. Such being the case, I
private respondents maintained that while procedurally the court is THE RESPONDENT JUDGE, WITHOUT EVEN COMPLYING WITH
called upon to rule only on the extrinsic validity of the will, it is not SECTIONS 3 AND 4 OF RULE 76 OF THE RULES OF COURT ON
barred from delving into the intrinsic validity of the same, and THE PROPER PROCEDURE FOR SETTING THE CASE FOR INITIAL
ordering the dismissal of the petition for probate when on the face HEARING FOR THE ESTABLISHMENT OF THE JURISDICTIONAL
of the will it is clear that it contains no testamentary disposition of FACTS, DISMISSED THE TESTATE CASE ON THE ALLEGED
the property of the decedent. GROUND THAT THE TESTATOR'S WILL IS VOID ALLEGEDLY
BECAUSE OF THE EXISTENCE OF PRETERITION, WHICH GOES
Petitioners filed their opposition to the motion to dismiss INTO THE INTRINSIC VALIDITY OF THE WILL, DESPITE THE FACT
contending that: 1) generally, the authority of the probate court is THAT IT IS A SETTLED RULE THAT THE AUTHORITY OF PROBATE
limited only to a determination of the extrinsic validity of the will; 2) COURTS IS LIMITED ONLY TO A DETERMINATION OF THE
private respondents question the intrinsic and not the extrinsic EXTRINSIC VALIDITY OF THE WILL, I.E., THE DUE EXECUTION
validity of the will; 3) disinheritance constitutes a disposition of the THEREOF, THE TESTATOR'S TESTAMENTARY CAPACITY AND
estate of a decedent; and, 4) the rule on preterition does not apply THE COMPLIANCE WITH THE REQUISITES OR SOLEMNITIES
because Segundo's will does not constitute a universal heir or PRESCRIBED BY LAW;
[6]
heirs to the exclusion of one or more compulsory heirs.



II For disinheritance to be valid, Article 916 of the Civil Code requires
EVEN ASSUMING ARGUENDO THAT THE RESPONDENT JUDGE that the same must be effected through a will wherein the legal
HAS THE AUTHORITY TO RULE UPON THE INTRINSIC VALIDITY cause therefor shall be specified. With regard to the reasons for
OF THE WILL OF THE TESTATOR, IT IS INDUBITABLE FROM THE the disinheritance that were stated by Segundo in his document,
FACE OF THE TESTATOR'S WILL THAT NO PRETERITON EXISTS the Court believes that the incidents, taken as a whole, can be
AND THAT THE WILL IS BOTH INTRINSICALLY AND considered a form of maltreatment of Segundo by his son, Alfredo,
EXTRINSICALLY VALID; AND, and that the matter presents a sufficient cause for the
disinheritance of a child or descendant under Article 919 of the
III Civil Code:
RESPONDENT JUDGE WAS DUTY BOUND TO SUSPEND THE Article 919. The following shall be sufficient causes for the
PROCEEDINGS IN THE INTESTATE CASE CONSIDERING THAT IT disinheritance of children and descendants, legitimate as well as
IS A SETTLED RULE THAT TESTATE PROCEEDINGS TAKE illegitimate:
PRECEDENCE OVER INTESTATE PROCEEDINGS.Petitioners argue,
as follows: (1) When a child or descendant has been found guilty of an attempt
against the life of the testator, his or her spouse, descendants, or
First, respondent judge did not comply with Sections 3 and 4 of ascendants;
Rule 76 of the Rules of Court which respectively mandate the court
to: a) fix the time and place for proving the will when all concerned (2) When a child or descendant has accused the testator of a crime
may appear to contest the allowance thereof, and cause notice of for which the law prescribes imprisonment for six years or more, if
such time and place to be published three weeks successively the accusation has been found groundless;
previous to the appointed time in a newspaper of general
circulation; and, b) cause the mailing of said notice to the heirs, (3) When a child or descendant has been convicted of adultery or
legatees and devisees of the testator Segundo; concubinage with the spouse of the testator;

Second, the holographic will does not contain any institution of an (4) When a child or descendant by fraud, violence, intimidation, or
heir, but rather, as its title clearly states, Kasulatan ng Pag-Aalis ng undue influence causes the testator to make a will or to change
Mana, simply contains a disinheritance of a compulsory heir. Thus, one already made;
there is no preterition in the decedent's will and the holographic
will on its face is not intrinsically void; (5) A refusal without justifiable cause to support the parents or
ascendant who disinherit such child or descendant;
Third, the testator intended all his compulsory heirs, petitioners
and private respondents alike, with the sole exception of Alfredo, (6) Maltreatment of the testator by word or deed, by the child or
to inherit his estate. None of the compulsory heirs in the direct line descendant;[8]

of Segundo were preterited in the holographic will since there was
no institution of an heir; (7) When a child or descendant leads a dishonorable or disgraceful
life;
Fourth, inasmuch as it clearly appears from the face of the
holographic will that it is both intrinsically and extrinsically valid, (8) Conviction of a crime which carries with it the penalty of civil
respondent judge was mandated to proceed with the hearing of interdiction.Now, the critical issue to be determined is whether the
the testate case; and, document executed by Segundo can be considered as a
holographic will.
Lastly, the continuation of the proceedings in the intestate case
will work injustice to petitioners, and will render nugatory the A holographic will, as provided under Article 810 of the Civil Code,
disinheritance of Alfredo. must be entirely written, dated, and signed by the hand of the
testator himself. It is subject to no other form, and may be made in
The purported holographic will of Segundo that was presented by or out of the Philippines, and need not be witnessed.
petitioners was dated, signed and written by him in his own
handwriting. Except on the ground of preterition, private Segundo's document, although it may initially come across as a
respondents did not raise any issue as regards the authenticity of mere disinheritance instrument, conforms to the formalities of a
the document. holographic will prescribed by law. It is written, dated and signed
by the hand of Segundo himself. An intent to dispose mortis
The document, entitled Kasulatan ng Pag-Aalis ng Mana, causa[9] can be clearly deduced from the terms of the instrument,
unmistakably showed Segundo's intention of excluding his eldest and while it does not make an affirmative disposition of the latter's
son, Alfredo, as an heir to his estate for the reasons that he cited property, the disinheritance of Alfredo, nonetheless, is an act of
therein. In effect, Alfredo was disinherited by Segundo. disposition in itself. In other words, the disinheritance results in the
disposition of the property of the testator Segundo in favor of


those who would succeed in the absence of Alfredo.[10] SO ORDERED.

Moreover, it is a fundamental principle that the intent or the will of Puno, (Chairperson), Sandoval-Gutierrez, Corona, and Garcia, JJ.,
the testator, expressed in the form and within the limits prescribed concur.
by law, must be recognized as the supreme law in succession. All
rules of construction are designed to ascertain and give effect to
that intention. It is only when the intention of the testator is 06 Vitug v. CA 183 SCRA 755
contrary to law, morals, or public policy that it cannot be given 262 Phil. 830
effect.[11]

Holographic wills, therefore, being usually prepared by one who is
not learned in the law, as illustrated in the present case, should be
SECOND DIVISION
construed more liberally than the ones drawn by an expert, taking
into account the circumstances surrounding the execution of the [ G.R. NO. 82027, March 29, 1990 ]
[12]
instrument and the intention of the testator. In this regard, the
Court is convinced that the document, even if captioned as ROMARICO G. VITUG, PETITIONER, VS. THE HONORABLE
Kasulatan ng Pag-Aalis ng Mana, was intended by Segundo to be COURT OF APPEALS AND ROWENA FAUSTINO-CORONA,
RESPONDENTS.
his last testamentary act and was executed by him in accordance

with law in the form of a holographic will. Unless the will is
probated,[13] the disinheritance cannot be given effect.[14]
D E C I S I O N
With regard to the issue on preterition,[15] the Court believes that
the compulsory heirs in the direct line were not preterited in the SARMIENTO, J.:
will. It was, in the Court's opinion, Segundo's last expression to
bequeath his estate to all his compulsory heirs, with the sole This case is a chapter in an earlier suit decided by this Court[1]
exception of Alfredo. Also, Segundo did not institute an heir [16] to involving the probate of the two wills of the late Dolores
the exclusion of his other compulsory heirs. The mere mention of Luchangco Vitug, who died in New York, U.S.A., on November 10,
the name of one of the petitioners, Virginia, in the document did 1980, naming private respondent Rowena Faustino-Corona
not operate to institute her as the universal heir. Her name was executrix. In our said decision, we upheld the appointment of
included plainly as a witness to the altercation between Segundo Nenita AIonte as co-special administrator of Mrs. Vitug's estate
and his son, Alfredo. with her (Mrs. Vitug's) widower, petitioner Romarico G. Vitug,
pending probate.
Considering that the questioned document is Segundo's
holographic will, and that the law favors testacy over intestacy, the On January 13, 1985, Romarico G. Vitug filed a motion asking for
probate of the will cannot be dispensed with. Article 838 of the authority from the probate court to sell certain shares of stock and
Civil Code provides that no will shall pass either real or personal real properties belonging to the estate to cover allegedly his
property unless it is proved and allowed in accordance with the advances to the estate in the sum or P667,731.66, plus interests,
Rules of Court. Thus, unless the will is probated, the right of a which he claimed were personal funds. As found by the Court of
person to dispose of his property may be rendered nugatory.[17] Appeals,[2] the alleged advances consisted of P58,147.40 spent for

the payment of estate tax, P518,834.27 as deficiency estate tax,
In view of the foregoing, the trial court, therefore, should have and P90,749.99 as "increment thereto."[3] According to Mr. Vitug,
allowed the holographic will to be probated. It is settled that he withdrew the sums of P518.834.27 and P90,749.99 from
testate proceedings for the settlement of the estate of the savings account No. 35342-038 of the Bank of America, Makati,
decedent take precedence over intestate proceedings for the Metro Manila.
same purpose.[18]

On April 12, 1985, Rowena Corona opposed the motion to sell on
WHEREFORE, the petition is GRANTED. The Orders of the the ground that the same funds withdrawn from savings account
Regional Trial Court of Manila, Branch 21, dated August 10, 1999 No. 35342-038 were conjugal partnership properties and part of
and October 14, 1999, are set aside. Respondent judge is directed the estate, and hence, there was allegedly no ground for
to reinstate and hear SP Proc. No. 99-93396 for the allowance of reimbursement. She also sought his ouster for failure to include
the holographic will of Segundo Seangio. The intestate case or SP. the sums in question for inventory and for "concealment of funds
Proc. No. 98-90870 is hereby suspended until the termination of belonging to the estate.”[4]
the aforesaid testate proceedings.
Vitug insists that the said funds are his exclusive property having
No costs. acquired the same through a survivorship agreement executed



with his late wife and the bank on June 19, 1970. The agreement person disposes of his property and rights and declares or
provides: complies with duties to take effect after his death."[14] In other
words, the bequest or device must pertain to the testator.[15] In this
We hereby agree with each other and with the BANK OF case, the monies subject of savings account No. 35342-038 were
AMERICAN NATIONAL TRUST AND SAVINGS ASSOCIATION in the nature of conjugal funds. In the case relied on, Rivera v.
(hereinafter referred to as the BANK), that all money now or People’s Bank and Trust Co.,[16] we rejected claims that a
hereafter deposited by us or any or either of us with the BANK in survivorship agreement purports to deliver one party's separate
our joint savings current account shall be the property of all or properties in favor of the other, but simply, their joint holdings:
both of us and shall be payable to and collectible or withdrawable
by either or any of us during our lifetime, and after the death of xxx xxx xxx
either or any of us shall belong to and be the sole property of the
survivor or survivors, and shall be payable to and collectible or xxx Such conclusion is evidently predicated on the assumption
withdrawable by such survivor or survivors. that Stephenson was the exclusive owner of the funds deposited
in the bank, which assumption was in turn based on the facts (1)
We further agree with each other and the BANK that the receipt or that the account was originally opened in the name of Stephenson
check of either, any or all of us during our lifetime, or the receipt or alone and (2) that Ana River ”served only as housemaid of the
check of the survivor or survivors, for any payment or withdrawal deceased.” But it not infrequently happens that a person deposits
made for our above–mentioned account shall be valid and money in the bank in the name of another; and in the instant case
sufficient release and discharge of the BANK for such payment or it also appears that Ana Rivera served her master for about
[5]
withdrawal. nineteen years without actually receiving her salary from him. The

fact that subsequently Stephenson transferred the account to the
The trial court[6] upheld the validity of this agreement and granted name of himself and/or Ana Rivera and executed with the latter the
"the motion to sell some of the estate of Dolores L. Vitug, the survivorship agreement in question although there was no relation
proceeds of which shall be used to pay the personal funds of of kinship between them but only that of master and servant,
[7]
Romarico Vitug in the total sum of P667,731.66 x x x." nullifies the assumption that Stephenson was the exclusive owner

of the bank account. In the absence, then, of clear proof to the
On the other hand, the Court of Appeals, in the petition for contrary, we must give full faith and credit to the certificate of
certiorari filed by the herein private respondent, held that the deposit which recites in effect that the funds in question belonged
above-quoted survivorship agreement constitutes a conveyance to Edgar Stephenson and Ana Rivera; that they were joint (and
mortis causa which "did not comply with the formalities of a valid several) owners thereof; and that either of them could withdraw
[8]
will as prescribed by Article 805 of the Civil Code," and secondly, any part or the whole of said account during the lifetime of both,
assuming that it is a mere donation inter vivos, it is a prohibited and the balance, if any, upon the death of either, belonged to the
[9]
donation under the provisions of Article 133 of the Civil Code. survivor.[17]

The dispositive portion of the decision or the Court of Appeals xxx xxx xxx
states:
WHEREFORE, the order of respondent Judge dated November 26, In Macam v. Gatmaitan,[18] it was held:
1985 (Annex II, petition) is hereby set aside insofar as it granted
private respondent's motion to sell certain properties of the estate xxx xxx xxx
of Dolores L. Vitug for reimbursement of his alleged advances to
the estate, but the same order is sustained in all other respects. In This Court is of the opinion that Exhibit C, is an aleatory contract
addition, respondent Judge is directed to include provisionally the whereby, according to article 1790 of the Civil Code, one of the
deposits in Savings Account No. 35342-038 with the Bank of parties or both reciprocally bind themselves to give or do
America, Makati, in the inventory of actual properties possessed something as an equivalent for that which the other party is to give
by the spouses at the time of the decedent's death. With costs or do in case of the occurrence of an event which is uncertain or
against private respondent.[10]In his petition, Vitug, the surviving will happen at an indeterminate time. As already stated, Leonarda
spouse, assails the appellate court's ruling on the strength of our was the owner of the house and Juana of the Buick automobile
[11]
decisions in Rivera v. People’s Bank and Trust Co. and Macam v. and most of the furniture. By virtue of Exhibit C, Juana would
[12]
Gatmaitan in which we sustained the validity of "survivorship become the owner of the house in case Leonarda died first, and
agreements" and considering them as aleatory contracts.[13] Leonarda would become the owner of the automobile and the

furniture if Juana were to die first. In this manner Leonarda and
The petition is meritorious. Juana reciprocally assigned their respective property to one
another conditioned upon who might die first, the time of death
The conveyance in question is not, first or all, one of mortis causa, determining the event upon which the acquisition of such right by
which should be embodied in a will. A will has been defined as "a the one or the other depended. This contract, as any other
personal, solemn, revocable and free act by which a capacitated contract, is binding upon the parties thereto. Inasmuch as



Leonarda had died before Juana, the latter thereupon acquired law its operation or effect may be violative of the law. For
the ownership of the house, in the same manner as Leonarda instance, if it be shown in a given case that such agreement is a
would have acquired the ownership of the automobile and of the mere cloak to hide an inofficious donation, to transfer property in
[19]
furniture if Juana had died first. fraud of creditors, or to defeat the legitime of a forced heir, it may

be assailed and annulled upon such grounds. No such vice has
xxx xxx xxx been imputed and established against the agreement involved in
There is no showing that the funds exclusively belonged to one this case.[26]

party, and hence it must be presumed to be conjugal, having been
acquired during the existence of the marital relations.[20] xxx xxx xxx

There is no demonstration here that the survivorship agreement
Neither is the survivorship agreement a donation inter vivos, for had been executed for such unlawful purposes, or as held by the
obvious reasons, because it was to take effect after the death of respondent court, in order to frustrate our laws on wills, donations,
one party. Secondly, it is not a donation between the spouses and conjugal partnership.
because it involved no conveyance of a spouse's own properties
to the other. The conclusion is accordingly unavoidable that Mrs. Vitug having
predeceased her husband, the latter has acquired upon her death
It is also our opinion that the agreement involves no modification a vested right over the amounts under savings account No.
of the conjugal partnership, as held by the Court of Appeals,[21] by 35342-038 of the Bank of America. Insofar as the respondent
[22] [23]
"mere stipulation,” and that it is no "cloak" to circumvent the court ordered their inclusion in the inventory of assets left by Mrs.
law on conjugal property relations. Certainly, the spouses are not Vitug, we hold that the court was in error. Being the separate
prohibited by law to invest conjugal property, say, by way of a joint property of petitioner, it forms no more part of the estate of the
and several bank account, more commonly denominated in deceased.
banking parlance as an "and/or" account. In the case at bar, when
the spouses Vitug opened savings account No. 35342-038, they WHEREFORE, the decision of the respondent appellate court,
merely put what rightfully belonged to them in a money-making dated June 29, 1987, and its resolution, dated February 9, 1988,
venture. They did not dispose of it in favor of the other which are SET ASIDE.
would have arguably been sanctionable as a prohibited donation.
And since the funds were conjugal, it can not be said that one No costs.
spouse could have pressured the other in placing his or her
deposits in the money pool. SO ORDERED.

The validity of the contract seems debatable by reason of its Melencio-Herrera, (Chairman), Paras, Padilla, and Regalado, JJ.,
"survivor-take-all" feature, but in reality, that contract imposed a concur.
mere obligation with a term, the term being death. Such
[24]
agreements are permitted by the Civil Code.

07 Enriquez v. Abadia G.R. No. L-7188 August 9,
Under Article 2010 of the Code: 1954
95 Phil. 627
ART. 2010. By an aleatory contract, one of the parties or both
reciprocally bind themselves to give or to do something in [ G.R. No. L-7188, August 09, 1954 ]
consideration of what the other shall give or do upon the
happening of an event which is uncertain, or which is to occur at IN RE: WILL AND TESTAMENT OF THE DECEASED
an indeterminate time.Under the aforequoted provision, the REVEREND SANCHO ABADIA. SEVERINA A. VDA. DE
fulfillment of an aleatory contract depends on either the ENRIQUEZ, ET AL., PETITIONERS AND APPELLEES, VS.
happening of an event which is (1)"uncertain,” or (2) "which is to MIGUEL ABADIA, ET AL., OPPOSITORS AND
occur at an indeterminate time." A survivorship agreement, the APPELLANTS.

sale of a sweepstake ticket, a transaction stipulating on the value D E C I S I O N
of currency, and insurance have been held to fall under the first
category, while a contract for life annuity or pension under Article
2021, et sequenta, has been categorized under the second.[25] In MONTEMAYOR, J.:
either case, the element of risk is present. In the case at bar, the
risk was the death of one party and survivorship of the other.
On September 6, 1923, Father Sancho Abadia, parish priest of
However, as we have warned: Talisay, Cebu, executed a document purporting to be his Last Will
xxx xxx xxx and Testament now marked Exhibit "A". Resident of the City of
Cebu, he died on January 14, 1943, in the municipality of
But although the survivorship agreement is per se not contrary to Aloguinsan, Cebu, where he was an evacue. He left properties


estimated at P8,000 in value. On October 2, 1946, one Andres same requirement, this Court declared:
Enriquez, one of the legatees in Exhibit "A", filed a petition for its "From an examination of the document in question, it appears that
probate in the Court of First Instance of Cebu. Some cousins and the left margins of the six pages of the document are signed only
nephews who would inherit the estate of the deceased if he left no by Ventura Prieto. The noncompliance with section 2 of Act No.
will, filed opposition. 2645 by the attesting witnesses who omitted to sign with the
During the hearing one of the attesting witnesses, the other two testator at the left margin of each of the five pages of the
being dead, testified without contradiction that in his presence and document alleged to be the will of Ventura Prieto, is a fatal defect
in the presence of his co-witnesses, Father Sancho wrote out in that constitutes an obstacle to its probate."
longhand Exhibit "A" in Spanish which the testator spoke and What is the law to apply to the probate of Exh. "A"? May we apply
understood; that he (testator) signed on he left hand margin of the the provisions of the new Civil Code which now allows holographic
front page of each of the three folios or sheets of which the wills, like Exhibit "A" which provisions were invoked by the
document is composed, and numbered the same with Arabic appellee-petitioner and applied by the lower court? But article 795
numerals, and finally signed his name at the end of his writing at of this same new Civil Code expressly provides: "The validity of a
the last page, all this, in the presence of the three attesting will as to its form depends upon the observance of the law in force
witnesses after telling that it was his last will and that the said at the time it is made." The above provision is but an expression or
three witnesses signed their names on the last page after the statement of the weight of authority to the effect that the validity of
attestation clause in his presence and in the presence of each a will is to be judged not by the law enforce at the time of the
other. The oppositors did not submit any evidence. testator's death or at the time the supposed will is presented in
The learned trial court found and declared Exhibit "A" to be a court for probate or when the petition is decided by the court but
holographic will; that it was in the handwriting of the testator and at the time the instrument was executed. One reason in support of
that although at the time it was executed and at the time of the the rule is that although the will operates upon and after the death
testator's death, holographic wills were not permitted by law still, of the testator, the wishes of the testator about the disposition of
because at the time of the hearing and when the case was to be his estate among his heirs and among the legatees is given
decided the new Civil Code was already in force, which Code solemn expression at the time the will is executed, and in reality,
permitted the execution of holographic wills, under a liberal view, the legacy or bequest then becomes a completed act. This ruling
and to carry out the intention of the testator which according to has been laid down by this court in the case of In re Will of Riosa,
the trial court is the controlling factor and may override any defect 39 Phil., 23. It is a wholesome doctrine and should be followed.
in form, said trial court by order dated January 24, 1952, admitted Of course, there is the view that the intention of the testator
to probate Exhibit "A", as the Last Will and Testament of Father should be the ruling and controlling factor and that all adequate
Sancho Abadia. The oppositors are appealing from that decision; remedies and interpretations should be resorted to in order to
and because only questions of law are involved in the appeal, the carry out said intention, and that when statutes passed after the
case was certified to us by the Court of Appeals. execution of the will and after the death of the testator lessen the
The new Civil Code (Republic Act No. 386) under article 810 formalities required by law for the execution of wills, said
thereof provides that a person may execute a holographic will subsequent statutes should be applied so as to validate wills
which must be entirely written, dated and signed by the testator defectively executed according to the law in force at the time of
himself and need not be witnessed. It is a fact, however, that, at execution. However, we should not forget that from the day of the
the time that Exhibit "A" was executed in 1923 and at the time that death of the testator, if he leaves a will, the title of the legatees
Father Abadia died in 1943, holographic wills were not permitted, and devisees under it becomes a vested right, protected under
and the law at the time imposed certain requirements for the the due process clause of the constitution against a subsequent
execution of wills, such as numbering correlatively each page (not change in the statute adding new legal requirements of execution
folio or sheet) in letters and signing on the left hand margin by the of wills which would invalidate such a will. By parity of reasoning,
testator and by the three attesting witnesses, requirements which when one executes a will which is invalid for failure to observe and
were not complied with in Exhibit "A" because the back pages of follow the legal requirements at the time of its execution then
the first two folios of the will were not signed by any one, not even upon his death he should be regarded and declared as having
by the testator and were not numbered, and as to the three front died intestate, and his heirs will then inherit by intestate
pages, they were signed only by the testator. succession, and no subsequent law with more liberal requirements
Interpreting and applying this requirement this Court in the case of or which dispenses with such requirements as to execution should
In re Estate of Saguinsin, 41 Phil., 875, 879, referring to the failure be allowed to validate a defective will and thereby divest the heirs
of the testator and his witnesses to sign on the left hand margin of of their vested rights in the estate by intestate succession. The
every page, said: general rule is that the Legislature can not validate void wills (57
"* * *. This defect is radical and totally vitiates the testament. It is Am. Jur., Wills, Sec. 231, pp. 192-193).
not enough that the signatures guaranteeing authenticity should In view of the foregoing, the order appealed from is reversed, and
appear upon two folios or leaves; three pages having been written Exhibit "A" is denied probate. With costs.
on, the authenticity of all three of them should be guaranteed by Paras, C. J., Pablo, Bengzon, Padilla, Reyes, A., Jugo, Bautista
the signature of the alleged testatrix and her witnesses." Angelo, Labrador, Concepcion and Reyes J. B. L., JJ., concur.
And in the case of Aspe vs. Prieto, 46 Phil., 700, referring to the


On January 20, 1944, Melecia Jimenez sold said 436

square-meter-portion of the property to Edilberto Cagampan and
08 Jimenez v. Fernandez G.R. No. L-46364. April defendant Teodora Grado executed a contract entitled "Exchange
6, 1990
of Real Properties" whereby the former transferred said 436
263 Phil. 72
square-meter-portion to the latter, who has been in occupation

since.

On August 29, 1969, plaintiff Sulpicia Jimenez executed an
SECOND DIVISION affidavit adjudicating unto herself the other half of the property
appertaining to Carlos Jimenez, upon manifestation that she is the
[ G.R. NO. L-46364, April 06, 1990 ]
only heir of her deceased uncle. Consequently Transfer Certificate
of Title No. 82275 was issued on October 1, 1969 in petitioner's
SULPICIA JIMENEZ AND TORIBIO MATIAS, PETITIONERS,
name alone over the entire 2,932 square meter-property.
VS. VICENTE FERNANDEZ ALIAS HOSPICIO FERNANDEZ
AND TEODORA GRADO, RESPONDENTS.
On April 1, 1970, Sulpicia Jimenez, joined by her husband,
instituted the present action for the recovery of the eastern portion

D E C I S I O N of the property consisting of 436 square meters occupied by
defendant Teodora Grado and her son.

PARAS, J.: After trial on the merits, the lower court rendered judgment, the
dispositive portion of which reads:
Before Us is a petition for review on certiorari of the following "WHEREFORE, decision is hereby rendered dismissing the
Decision[1] and Resolution2 of the Honorable Court of Appeals: (1) complaint and holding the defendant, Teodora Grado, the absolute
Decision, dated March 1, 1977 in C.A.-G.R. No. 49178-R entitled owner of the land in question; ordering the plaintiffs to pay to the
"Sulpicio Jimenez, et al., v. Vicente Fernandez, et al." affirming in defendant the amount of P500.00 as damages, as attorney's fees,
toto the judgment of the Court of First Instance of Pangasinan. and to pay the costs of suit.
Third Judicial District in Civil Case No. 14802-I between the same
parties and (2) Resolution dated June 3, 1977 denying "SO ORDERED." (Rollo, p. 20)Petitioner appealed the above
plaintiffs-appellants' motion for reconsideration. judgment to the respondent Court of Appeals and on March 1,
1977, respondent Court of Appeals rendered a decision affirming
As gathered from the records, the factual background of this case the same in toto. Said decision was rendered by a special division
is as follows: of five (5) justices, with the Hon. Lourdes San Diego, dissenting.

The land in question is the Eastern portion with an area of Four Petitioners within the reglementary period granted by the
Hundred Thirty Six (436) square meters of that parcel of residential Honorable Court of Appeals, filed therewith a motion for
land situated in Barrio Dulig (now Magsaysay), Municipality of reconsideration. But said motion for reconsideration was denied
Labrador, Pangasinan actually covered by Transfer Certificate of by the Court of Appeals in its resolution dated June 3, 1977.
Title No. 82275 (Exhibit A) issued in the name of Sulpicia Jimenez.
In their appeal to the respondent Court of Appeals from the
The entire parcel of land with an area of 2,932 square meters, aforequoted decision of the trial court, herein petitioner raised the
formerly belonged to Fermin Jimenez. Fermin Jimenez has two (2) following assignments of error to wit:
sons named Fortunato and Carlos Jimenez. This Fortunato ASSIGNMENTS OF ERROR
Jimenez who predeceased his father has only one child, the
petitioner Sulpicia Jimenez. After the death of Fermin Jimenez, I
the entire parcel of land was registered under Act 496 in the name
of Carlos Jimenez and Sulpicia Jimenez (uncle and niece) in equal THE LOWER COURT ERRED IN NOT DECLARING THAT MELECIA
shares pro-indiviso. As a result of the registration case Original CAYABYAB, ALSO KNOWN AS MELECIA JIMENEZ, IS NOT THE
Certificate of Title No. 50933 (Exhibit 8) was issued on February DAUGHTER OF CARLOS JIMENEZ.
28, 1933, in the names of Carlos Jimenez and Sulpicia Jimenez, in
equal shares pro-indiviso. II

Carlos Jimenez died on July 9, 1936 and his illegitimate daughter, THE LOWER COURT ERRED IN NOT DECLARING THAT MELECIA
Melecia Cayabyab, also known as Melecia Jimenez, took CAYABYAB, ALSO KNOWN AS MELECIA JIMENEZ, HAS NO RIGHT
possession of the eastern portion of the property consisting of 436 TO SELL THE LAND IN QUESTION TO EDILBERTO CAGAMPAN.
square meters.
III


follows:
THE LOWER COURT ERRED IN NOT DECLARING THAT "Rights to the inheritance of a person who died with or without a
EDILBERTO CAGAMPAN DID NOT BECOME THE OWNER OF THE will, before the effectivity of this Code, shall be governed by the
LAND IN QUESTION BY VIRTUE OF THE DEED OF SALE (EXH. "1") Civil Code of 1889, by other previous laws, and by the Rules of
EXECUTED BY MELECIA CAYABYAB, ALIAS MELECIA JIMENEZ, IN Court x x x." (Rollo, p. 17)Thus, since Carlos Jimenez, owner of
HIS FAVOR. one-half pro-indiviso portion of that parcel of land then covered by
Original Certificate of Title No. 50933, died on July 9, 1936 (Exhibit
IV "F") way before the effectivity of the Civil Code of the Philippines,
the successional rights pertaining to his estate must be
THE LOWER COURT ERRED IN NOT DECLARING THAT TEODORA determined in accordance with the Civil Code of 1889.
GRADO DID NOT BECOME THE OWNER OF THE LAND IN
QUESTION BY VIRTUE OF THE DEED OF EXCHANGE (EXH. "7") Citing the case of Cio v. Burnaman (24 SCRA 434) wherein this
EXECUTED BY HER AND EDILBERTO CAGAMPAN. Court categorically held that:
"To be an heir under the rules of Civil Code of 1889 (which was the
V law in force when Carlos Jimenez died and which should be the
governing law in so far as the right to inherit from his estate was
THE LOWER COURT ERRED IN NOT DECLARING THAT THE TITLE concerned), a child must be either a child legitimate, legitimated,
OF APPELLANT SULPICIA JIMENEZ OVER THE LAND IN or adopted, or else an acknowledged natural child -- for
QUESTION CAN NOT BE DEFEATED BY THE ADVERSE OPEN illegitimate not natural are disqualified to inherit." (Civil Code of
AND NOTORIOUS POSSESSION OF APPELLEE TEODORA 1889, Art. 807, 935)Even assuming that Melecia Cayabyab was
GRADO. born out of the common-law-relationship between her mother
(Maria Cayabyab) and Carlos Jimenez, she could not even be
VI considered an acknowledged natural child because Carlos
Jimenez was then legally married to Susana Abalos and therefore
THE LOWER COURT ERRED IN DECLARING THAT THE APPELLEE not qualified to marry Maria Cayabyab and consequently Melecia
TEODORA GRADO IS THE ABSOLUTE OWNER OF THE LAND IN Cayabyab was an illegitimate spurious child and not entitled to any
QUESTION IN THE LIGHT OF THE DECISION OF THE SUPREME successional rights in so far as the estate of Carlos Jimenez was
COURT IN THE CASE OF LOURDES ARCUINO, ET AL., V. RUFINA concerned.
APARIS AND CASIANO PURAY, G.R. NO. L-23424, PROMULGATED
JANUARY 31, 1968, WHICH CASE IS NOT APPLICABLE TO THE Melecia Cayabyab in the absence of any voluntary conveyance to
CASE AT BAR. her by Carlos Jimenez or Sulpicia Jimenez of the litigated portion
of the land could not even legally transfer parcel of land to
VII Edilberto Cagampan who accordingly, could not also legally
transfer the same to herein private respondents.
THE LOWER COURT ERRED IN DISMISSING THE COMPLAINT
AND ORDERING THE APPELLANTS TO PAY THE APPELLEES THE Analyzing the case before Us in this manner, We can immediately
SUM OF P500.00 AS ATTORNEY'S FEES PLUS THE COSTS.From discern another error in the decision of the respondent court,
the foregoing, this petition for review was filed. which is that the said court sustained and made applicable to the
case at bar the ruling in the case of Arcuino, et al., v. Aparis and
We find merit in the petition. Puray, No. L-23424, January 31, 1968, 22 SCRA 407, wherein We
held that:
From the start the respondent court erred in not declaring that “x x x it is true that the lands registered under the Torren's System
Melecia Jimenez Cayabyab also known as Melecia Jimenez, is not may not be acquired by prescription but plaintiffs herein are not
the daughter of Carlos Jimenez and therefore, had no right over the registered owners. They merely claim to have acquired by
the property in question. Respondents failed to present concrete succession, their alleged title or interest in lot No. 355. At any rate
evidence to prove that Melecia Cayabyab was really the daughter plaintiffs herein are guilty of laches."The respondent court relying
of Carlos Jimenez. Nonetheless, assuming for the sake of on the Arcuino case, concluded that respondents had acquired
argument that Melecia Cayabyab was the illegitimate daughter of the property under litigation by prescription. We cannot agree
Carlos Jimenez there can be no question that Melecia Cayabyab with such conclusion, because there is one very marked and
had no right to succeed to the estate of Carlos Jimenez and could important difference between the case at bar and that of the
not have validly acquired, nor legally transferred to Edilberto Arcuino case, and that is, that since 1933 petitioner Sulpicia
Cagampan that portion of the property subject of this petition. Jimenez was a title holder, the property then being registered in
her and her uncle Carlos Jimenez' name. In the Arcuino case, this
It is well-settled in this jurisdiction that the rights to the succession Supreme Court held, "(I)t is true that lands registered under the
are transmitted from the moment of the death of the decedent (Art. Torren's System may not be acquired by prescription but plaintiffs
777, Civil Code). Moreover, Art. 2263 of the Civil Code provides as herein are not the registered owners." (Rollo, p. 38) Even in the



said cited case the principle of imprescriptibility of Torrens Titles the confidence of the people in the titles covering the properties.
was respected. And to this end, this Court has invariably upheld the indefeasibility
of the Torrens Title and in, among others, J. M. Tuazon and Co.,
Melecia Cayabyab's possession or of her predecessors-in-interest Inc. v. Macalindong (6 SCRA 938), held that "the right of the
would be unavailing against the petitioner Sulpicia Jimenez who appellee to file an action to recover possession based on its
was the holder pro-indiviso with Carlos Jimenez of the Torrens Torrens Title is imprescriptible and not barred under the doctrine
Certificate of Title covering a tract of land which includes the of laches."
portion now in question, from February 28, 1933, when the Original
Certificate of Title No. 50933 (Exhibit 8) was issued. WHEREFORE, the Petition for Review is hereby GRANTED. The
"No possession by any person of any portion of the land covered Decision and Resolution dated March 1, 1977 and June 3, 1977 in
by said original certificate of titles, could defeat the title of the CA G.R. No. L-49178-R are SET ASIDE.
registered owner of the land covered by the certificate of title."
(Benin v. Tuason, L-26127, June 28, 1974, 57 SCRA 531)Sulpicia's SO ORDERED.
title over her one-half undivided property remained good and
continued to be good when she segregated it into a new title Padilla, Sarmiento, and Regalado, JJ., concur.
(T.C.T. No. 82275, Exhibit "A") in 1969. Sulpicia's ownership over Melencio-Herrera, J., (Chairman), no part.
her one-half of the land and which is the land in dispute was
always covered by a Torrens title, and therefore, no amount of
possession thereof by the respondents, could ever defeat her 09 Miciano v. Brimo G.R. No. 22595 Nov 1, 1924
proprietary rights thereon. It is apparent, that the right of plaintiff 50 Phil. 867
(now petitioner) to institute this action to recover possession of the

portion of the land in question based on the Torrens Title of
Sulpicia Jimenez, T.C.T. No. 82275 (Exhibit "A") is imprescriptible [ G.R. No. 22595, November 01, 1924 ]
and not barred under the doctrine of laches. (J. M. Tuason & Co. v.
Macalindong, L-15398, December 29, 1962, Francisco v. Cruz, et TESTATE ESTATE OF JOSEPH G. BRIMO. JUAN MICIANO,
al., 43 O.G. 5105) (Rollo, p. 39) ADMINISTRATOR, PETITIONER AND APPELLEE, VS.
ANDRE BRIMO, OPPONENT AND APPELLANT.

The respondent Court of Appeals declared the petitioner Sulpicia
D E C I S I O N
Jimenez guilty of laches and citing the ruling in the case of Heirs of
Lacamen v. Heirs of Laruan (65 SCRA 605), held that, since
petitioner Sulpicia Jimenez executed her Affidavit of ROMUALDEZ, J.:
Self-Adjudication only in 1969, she lost the right to recover
possession of the parcel of land subject of the litigation. The partition of the estate left by the deceased Joseph G. Brimo is
in question in this case.
In this instance, again We rule for the petitioner. There is no
absolute rule as to what constitutes laches or staleness of The judicial administrator of this estate filed a scheme of partition.
demand; each case is to be determined according to its particular Andre Brimo, one of the brothers of the deceased, opposed it.
circumstances. The question of laches is addressed to the sound The court, however, approved it.
discretion of the court and since laches is an equitable doctrine, its
application is controlled by equitable considerations. It cannot be The errors which the oppositor-appellant assigns are: (1) The
worked to defeat justice or to perpetrate fraud and injustice. It approval of said scheme of partition; (2) the denial of his
would be rank injustice and patently inequitous to deprive the participation in the inheritance; (3) the denial of the motion for
lawful heirs of their rightful inheritance. reconsideration of the order approving the partition; (4) the
approval of the purchase made by Pietro Lanza of the
Petitioner Sulpicia Jimenez is entitled to the relief prayed for, deceased's business and the deed of transfer of said business;
declaring her to be the sole and absolute owner of the land in and (5) the declaration that the Turkish laws are impertinent to this
question with right to its possession and enjoyment. Since her cause, and the failure not to postpone the approval of the scheme
uncle Carlos Jimenez died in 1936, his pro-indiviso share in the of partition and the delivery of the deceased's business to Pietro
properties then owned in co-ownership with his niece Sulpicia Lanza until the receipt of the depositions requested in reference
descended by intestacy to Sulpicia Jimenez alone because Carlos to the Turkish laws.
died without any issue or other heirs.
The appellant's opposition is based on the fact that the partition
After all, the professed objective of Act No. 496, otherwise known in question puts into effect the provisions of Joseph G. Brimo's
as the Land Registration Act or the law which established the will which are not in accordance with the laws of his Turkish
Torrens System of Land Registration in the Philippines is that the nationality, for which reason they are void as being in violation of
stability of the landholding system in the Philippines depends on article 10 of the Civil Code which, among other things, provides the


following:
"Nevertheless, legal and testamentary successions, in respect If this condition as it is expressed were legal and valid, any
to the order of succession as well as to the amount of the legatee who fails to comply with it, as the herein oppositor who,
successional rights and the intrinsic validity of their provisions, by his attitude in these proceedings has not respected the will
shall be regulated by the national law of the person whose of the testator, as expressed, is prevented from receiving his
succession is in question, whatever may be the nature of the legacy.
property or the country in which it may be situated."But the fact is
that the oppositor did not prove that said testamentary The fact is, however, that the said condition is void, being
dispositions are not in accordance with the Turkish laws, inasmuch contrary to law, for article 792 of the Civil Code provides the
as he did not present any evidence showing what the Turkish laws following:
are on the matter, and in the absence of evidence on such laws, "Impossible conditions and those contrary to law or good morals
they are presumed to be the same as those of the Philippines. shall be considered as not imposed and shall not prejudice the
(Lim and Urn vs. Collector of Customs, 36 Phil., 472.) heir or legatee in any manner whatsoever, even should the
testator otherwise provide."And said condition is contrary to law
It has not been proved in these proceedings what the Turkish because it expressly ignores the testator's national law when,
laws are. He, himself, acknowledges it when he desires to be according to article 10 of the Civil Code above quoted, such
given an opportunity to present evidence on this point; so much national law of the testator is the one to govern his testamentary
so that he assigns as an error of the court in not having deferred dispositions.
the approval of the scheme of partition until the receipt of certain
testimony requested regarding the Turkish laws on the matter. Said condition then, in the light of the legal provisions above
The refusal to give the oppositor another opportunity to prove cited, is considered unwritten, and the institution of legatees in
such laws does not constitute an error. It is discretionary with the said will is unconditional and consequently valid and effective
trial court, and, taking into consideration that the oppositor was even as to the herein oppositor.
granted ample opportunity to introduce competent evidence, we
find no abuse of discretion on the part of the court in this It results from all this that the second clause of the will regarding
particular. the law which shall govern it, and to the condition imposed upon
the legatees, is null and void, being contrary to law.
There is, therefore, no evidence in the record that the national law
of the testator Joseph G. Brimo was violated in the testamentary All of the remaining clauses of said will with all their dispositions
dispositions in question which, not being contrary to our laws in and requests are perfectly valid and effective it not appearing that
force, must be complied with and executed. said clauses are contrary to the testator's national laws.

Therefore, the approval of the scheme of partition in this respect Therefore, the orders appealed from are modified and it is
was not erroneous. directed that the distribution of this estate be made in such a
manner as to include the herein appellant Andre Brimo as one of
In regard to the first assignment of error which deals with the the legatees, and the scheme of partition submitted by the judicial
exclusion of the herein appellant as a legatee, inasmuch as he is administrator is approved in all other respects, without any
one of the persons designated as such in the will, it must be pronouncement as to costs. So ordered.
taken into consideration that such exclusion is based on the last
part of the second clause of the will, which says: Street, Malcolm, Avanceña, Villamor, and Ostrand, JJ., concur.
"Second. I likewise desire to state that although, by law, I am a
Turkish citizen, this citizenship having been conferred upon me by Johnson, J., dissents.
conquest and not by free choice, nor by nationality and, on the
other hand, having resided for a considerable length of time in.
the Philippine Islands where I succeeded in acquiring all of the
property that I now possess, it is my wish that the distribution of 10 Cayetano v. Leonidas 129 SCRA 522
214 Phil. 460
my property and everything in connection with this, my will, be

made and disposed of in accordance with the laws in force in the
Philippine Islands, requesting all of my relatives to respect this
wish, otherwise, I annul and cancel beforehand whatever
disposition found in this will favorable to the person or persons FIRST DIVISION
who fail to comply with this request."The institution of legatees in
[ G.R. No. L-54919, May 30, 1984 ]
this will is conditional, and the condition is that the instituted
legatees must respect the testator's will to distribute his property,
not in accordance with the laws of his nationality, but in
POLLY CAYETANO, PETITIONER, VS. HON. TOMAS T.
LEONIDAS, IN HIS CAPACITY AS THE PRESIDING JUDGE
accordance with the laws of the Philippines.


OF BRANCH XXXVIII; COURT OF FIRST INSTANCE OF questioned will was made.
MANILA AND NENITA CAMPOS PAGUIA, RESPONDENTS. On January 10, 1979, the respondent judge issued an order, to wit:
"At the hearing, it has been satisfactorily established that
D E C I S I O N
Adoracion C. Campos, in her lifetime, was a citizen of the United
States of America with a permanent residence at 4633 Ditman
GUTIERREZ, JR., J.: Street, Philadelphia, PA 19124, (Exhibit D); that when alive,
Adoracion C. Campos executed a Last Will and Testament in the
This is a petition for review on certiorari, seeking to annul the county of Philadelphia, Pennsylvania, U.S.A., according to the laws
order of the respondent judge of the Court of First Instance of thereat (Exhibits E-3 to E-3-b); that while in temporary sojourn in
Manila, Branch XXXVIII, which admitted to and allowed the the Philippines, Adoracion C. Campos died in the City of Manila
probate of the last will and testament of Adoracion C. Campos, (Exhibit C) leaving property both in the Philippines and in the
after an ex-parte presentation of evidence by herein private United States of America; that the Last Will and Testament of the
respondent. late Adoracion C. Campos was admitted and granted probate by
On January 31, 1977, Adoracion C. Campos died, leaving her father, the Orphan's Court Division of the Court of Carmon Pleas, the
petitioner Hermogenes Campos and her sisters, private probate court of the Commonwealth of Pennsylvania, County of
respondent Nenita C. Paguia, Remedios C. Lopez and Marieta C. Philadelphia, U.S.A., and letters of administration were issued in
Medina as the surviving heirs. As Hermogenes Campos was the favor of Clement J. McLaughlin, all in accordance with the laws of
only compulsory heir, he executed an Affidavit of Adjudication the said foreign country on procedure and allowance of wills
under Rule 74, Section I of the Rules of Court whereby he (Exhibits E to E-10); and that the petitioner is not suffering from any
adjudicated unto himself the ownership of the entire estate of the disqualification which would render her unfit as administratrix of
deceased Adoracion Campos. the estate in the Philippines of the late Adoracion C. Campos.
Eleven months after, on November 25, 1977, Nenita C. Paguia filed "WHEREFORE, the Last Will and Testament of the late Adoracion
a petition for the reprobate of a will of the deceased, Adoracion C. Canpos is hereby admitted to and allowed probate in the
Campos, which was allegedly executed in the United States and Philippines, and Nenita Campos Paguia is hereby appointed
for her appointment as administratrix of the estate of the deceased Administratrix of the estate of said decedent; let Letters of
testatrix. Administration with the Will annexed issue in favor of said
In her petition Nenita alleged that the testatrix was an American Administratrix upon her filing of a bond in the amount of
citizen at the time of her death and was a permanent resident of P5,000.00 conditioned under the provisions of Section I, Rule 81 of
4633 Ditman Street, Philadelphia, Pennsylvania, U.S.A.; that the the Rules of Court.
testatrix died in Manila on January 31, 1977 while temporarily Another manifestation was filed by the petitioner on April 14, 1979,
residing with her sister at 2167 Leveriza, Malate, Manila; that during confirming the withdrawal of his opposition, acknowledging the
her lifetime, the testatrix made her last will and testament on July same to be his voluntary act and deed.
10, 1975, according to the laws of Pennsylvania, U.S.A., nominating On May 25, 1979, Hermogenes Campos filed a petition for relief,
Wilfredo Barzaga of New Jersey as executor; that after the praying that the order allowing the will be set aside on the ground
testatrix' death, her last will and testament was presented, that the withdrawal of his opposition to the same was secured
probated, allowed, and registered with the Registry of Wills at the through fraudulent means. According to him, the "Motion to
County of Philadelphia, U.S.A., that Clement L. McLaughlin, the Dismiss Opposition" was inserted among the papers which he
administrator who was appointed after Dr. Barzaga had declined signed in connection with two Deeds of Conditional Sales which
and waived his appointment as executor in favor of the former, is he executed with the Construction and Development Corporation
also a resident of Philadelphia, U.S.A., and that therefore, there is of the Philippines (CDCP). He also alleged that the lawyer who
an urgent need for the appointment of an administratrix to filed the withdrawal of the opposition was not his
administer and eventually distribute the properties of the estate counsel-of-record in the special proceedings case.
located in the Philippines. The petition for relief was set for hearing but the petitioner failed
On January 11, 1978, an opposition to the reprobate of the will was to appear. He made several motions for postponement until the
filed by herein petitioner alleging among other things, that he has hearing was set on May 29, 1980.
every reason to believe that the will in question is a forgery; that On May 18, 1980, petitioner filed another motion entitled "Motion
the intrinsic provisions of the will are null and void; and that even if to Vacate and/or Set Aside the Order of January 10, 1979, and/or
pertinent American laws on intrinsic provisions are invoked, the dismiss the case for lack of jurisdiction. In this motion, the notice of
same could not apply inasmuch as they would work injustice and hearing provided:
injury to him. "Please include this motion in your calendar for hearing on May
On December 1, 1978, however, the petitioner through his counsel, 29, 1980 at 8:30 in the morning for submission for reconsideration
Atty. Franco Loyola, filed a Motion to Dismiss Opposition (With and resolution of the Honorable Court. Until this Motion is
Waiver of Rights or Interests) stating that he "has been able to resolved, may I also request for the future setting of the case for
verify the veracity thereof (of the will) and now confirms the same hearing on the Oppositor's motion to set aside previously filed."
to be truly the probated will of his daughter Adoracion." Hence, an The hearing of May 29, 1980 was re-set by the court for June 19,
ex-parte presentation of evidence for the reprobate of the 1980. When the case was called for hearing on this date, the



counsel for petitioner tried to argue his motion to Vacate instead petitioner at a later date, filed a manifestation wherein he
of adducing evidence in sup port of the petition for relief. Thus, the confirmed that the Motion to Dismiss Opposition was his voluntary
respondent judge issued an order dismissing the petition for relief act and deed. Moreover, at the time the motion was filed, the
for failure to present evidence in support thereof. Petitioner filed a petitioner's former counsel, Atty. Jose P. Lagrosa had long
motion for reconsideration but the same was denied. In the same withdrawn from the case and had been substituted by Atty. Franco
order, respondent judge also denied the motion to vacate for lack Loyola who in turn filed the motion. The present petitioner cannot,
of merit. Hence, this petition. therefore, maintain that the old man's attorney of record was Atty.
Meanwhile, on June 6, 1982, petitioner Hermogenes Campos died Lagrosa at the time of filing the motion. Since the withdrawal was
and left a will, which, incidentally has been questioned by the in order, the respondent judge acted correctly in hearing the
respondent, his children and forced heirs as, on its face, patently probate of the will ex-parte, there being no other opposition to the
null and void, and a fabrication, appointing Polly Cayetano as the same.
executrix of his last will and testament. Cayetano, therefore, filed a The third issue raised deals with the validity of the provisions of
motion to substitute herself as petitioner in the instant case which the will. As a general rule, the probate court's authority is limited
was granted by the court on September 13, 1982. only to the extrinsic validity of the will, the due execution thereof,
A motion to dismiss the petition on the ground that the rights of the testatrix's testamentary capacity and the compliance with the
the petitioner Hermogenes Campos merged upon his death with requisites or solemnities prescribed by law. The intrinsic validity of
the rights of the respondent and her sisters, I only remaining the will normally comes only after the court has declared that the
children and forced heirs was denied on September 12, 1983. will has been duly authenticated. However, where practical
Petitioner Cayetano persists with the allegations that the considerations demand that the intrinsic validity of the will be
respondent judge acted without or in excess of his jurisdiction passed upon, even before it is probated, the court should meet
when: the issue. (Maninang v. Court of Appeals, 114 SCRA 478).
"1) He ruled the petitioner lost his standing in court deprived the In the case at bar, the petitioner maintains that since the
Right to Notice (sic) upon the filing of the Motion to Dismiss respondent judge allowed the reprobate of Adoracion's will,
opposition with waiver of rights or interests against the estate of Hermogenes C. Campos was divested of his legitime which was
deceased Adoracion C. Campos, thus, paving the way for the reserved by the law for him.
ex-parte hearing of the petition for the probate of decedent will. This contention is without merit.
"2) He ruled that petitioner can waive, renounce or repudiate (not Although on its face, the will appeared to have preterited the
made in a public or authenticated instrument, or by way of a petitioner and thus, the respondent judge should have denied its
petition presented to the court but by way of a motion presented reprobate outright, the private respondents have sufficiently
prior to an order for the distribution of the estate - the law established that Adoracion was, at the time of her death, an
especially providing that repudiation of an inheritance must be American citizen and a permanent resident of Philadelphia,
presented, within 30 days after it has issued an order for the Pennsylvania, U.S.A. Therefore, under Article 16 par. (2) and 1039
distribution of the estate in accordance with the rules of Court. of the Civil which respectively provide:
“3) He ruled that the right of a forced heir to his legitime can be Art. 16 par. (2).
divested by a decree admitting a will to probate in which no xxx xxx xxx
provision is made for the forced heir in complete disregard of Law "However, intestate and testamentary successions, both with
of Succession. respect to the order of succession and to the amount of
“4) He denied petitioner's petition for Relief on the ground that no successional rights and to the intrinsic validity of testamentary
evidence was adduced to support the Petition for Relief when no provisions, shall be regulated by the national law of the person
Notice nor hearing was set to afford petitioner to prove the merit whose succession is under consideration, whatever may be the
of his petition - a denial of the due process and a grave abuse of nature of the property and regardless of the country wherein said
discretion amounting to lack of jurisdiction. property may be found."'
"5) He acquired no jurisdiction over the testate case, the fact that Art. 1039.
the Testator at the time of death was a usual resident of "Capacity to succeed is governed by the law of the nation of the
Dasmariñas, Cavite, consequently Cavite Court of First Instance decedent."
has exclusive jurisdiction over the case (De Borja vs. Tan, G.R. No. the law which governs Adoracion Campo's will is the law of
L-7792, July 1955)." Pennsylvania, U.S.A., which is the national law of the decedent.
The first two issues raised by the petitioner are anchored on the Although the parties admit that the Pennsylvania law does not
allegation that the respondent judge acted with grave abuse of provide for legitimes and that all the estate may be given away by
discretion when he allowed the withdrawal of the petitioner's the testatrix to a complete stranger, the petitioner argues that such
opposition to the reprobate of the will. law should not apply because it would be contrary to the sound
We find no grave abuse of discretion on the part of the respondent and established public policy and would run counter to the
judge. No proof was adduced to support petitioner's contention specific provisions of Philippine Law.
that the motion to withdraw was secured through fraudulent It is a settled rule that as regards the intrinsic validity of the
means and that Atty. Franco Loyola was not his counsel of record. provisions of the will, as provided for by Article 16 (2) and 1039 of
The records show that after the filing of the contested motion, the the Civil Code, the national law of the decedent must apply, This


was squarely applied in the case of Bellis v. Bellis (20 SCRN 358) question that same jurisdiction. (See Saulog Transit, Inc. v. Hon.
wherein we ruled: Manuel Lazaro, et al., G.R. No. 63284, April 4, 1984).
"It is therefore evident that whatever public policy or good WHEREFORE, the petition for certiorari and prohibition is hereby
customs may be involved in our system of legitimes, Congress has dismissed for lack of merit.
not intended to extend the same to the succession of foreign SO ORDERED.
nationals. For it has specifically chosen to leave, inter alia, the Melencio-Herrera, Plana, Relova, and De La Fuente, JJ., concur.
amount of successional rights, to the decedent's national law. Teehankee, (Chairman), J., no part.
Specific provisions must prevail over general ones.
xxx xxx xxx III. TESTAMENTARY CAPACITY AND INTENT
"The parties admit that the decedent, Amos G. Bellis, was a citizen
IV. SOLEMNITIES OF WILL
of the State of Texas, U.S.A. and under the law of Texas, there are
11 Abangan v. Abangan (1919) 40 Phil 476
no forced heirs or legitimes. Accordingly, since the intrinsic validity
40 Phil. 476
of the provision of the will and the amount of successional rights
are to be determined under Texas law, the Philippine Law on
legitimes cannot be applied to the testacy of Amos G. Bellis."
[ G.R. No. 13431, November 12, 1919 ]
As regards the alleged absence of notice of hearing for the
petition for relief, the records will bear the fact that what was
repeatedly scheduled for hearing on separate dates until June 19, IN RE WILL OF ANA ABANGAN. GERTRUDIS ABANGAN,
EXECUTRIX AND APPELLEE, VS. ANASTACIA ABANGAN
1980 was the petitioner's petition for relief and not his motion to
ET AL., OPPONENTS AND APPELLANTS.
vacate the order of January 10, 1979. There is no reason why the
petitioner should have been led to believe otherwise. The court D E C I S I O N
even admonished the petitioner's failing to adduce evidence when

his petition for relief was repeatedly set for hearing. There was no
AVANCENA, J.:
denial of due process. The fact that he requested "for the future

setting of the case for hearing xxx" did not mean that at the next
On September 19, 1917, the Court of First Instance of Cebu
hearing, the motion to vacate would be heard and given
admitted to probate Ana Abangan's will executed July, 1916. From
preference in lieu of the petition for relief. Furthermore, such
this decision the opponents appealed.
request should be embodied in a motion and not in a mere notice

of hearing.
Said document, duly probated as Ana Abangan's will, i' consists of
Finally, we find the contention of the petition as to the issue of
two sheets, the first of which contains all of the disposition of the
jurisdiction utterly devoid of merit. Under Rule 73, Section 1, of the
testatrix, duly signed at the bottom by Martin Montalban (in the
Rules of Court, it is provided that:
name and under the direction of the testatrix) and by three
"SECTION 1. Where estate of deceased persons settled. -If the
witnesses. The following sheet contains only the attestation clause
decedent is an inhabitant of the Philippines at the tine of his death,
duly signed at the bottom by the three instrumental witnesses.
whether a citizen or an alien, his will shall be proved, or letters of
Neither of these sheets is signed on the left margin by the testatrix
administration granted, and his estate settled, in the Court of First
and the three witnesses, nor numbered by letters; and these
Instance in the province in which he resided at the time of his
omissions, according to appellants' contention, are defects
death, and if he is an inhabitant of a foreign country, the Court of
whereby the probate of the will should have been denied. We are
First Instance of any province in which he had estate. The court
of the opinion that the will was duly admitted to probate.
first taking cognizance of the settlement of the estate of a

decedent, shall exercise jurisdiction to the exclusion of all other
In requiring that each and every sheet of the will should also be
courts. The jurisdiction assumed by a court, so far as it depends on
signed on the left margin by the testator and three witnesses in
the place of residence of the decedent, or of the location of his
the presence of each other, Act No. 2645 (which is the one
estate, shall not be contested in a suit or proceeding, except in an
applicable in the case) evidently has for its object (referring to the
appeal from that court, in the original case, or when the want of
body of the will itself) to avoid the substitution of any of said
jurisdiction appears on the record."
sheets, thereby changing the testator's dispositions. ^ But when
Therefore, the settlement of the estate of Adoracion Campos was
these dispositions are wholly written on only one sheet signed at
correctly filed with the Court of First Instance of Manila where she
the bottom by the testator and three witnesses (as the instant
had an estate since it was alleged and proven that Adoracion at
case), their signatures on the left margin of said sheet would be
the time of her death was a citizen and permanent resident of
completely purposeless. In requiring this signature on the margin,
Pennsylvania, United States of America and not a "usual resident
the statute took into consideration, undoubtedly, the case of a will
of Cavite" as alleged by the petitioner. Moreover, petitioner is now
written on several sheets and must have referred to the sheets
estopped from questioning the jurisdiction of the probate court in
which the testator and the witnesses do not have to sign at the
the petition for relief. It is a settled rule that a party cannot invoke
bottom. A different interpretation would assume that the statute
the jurisdiction of a court to secure affirmative relief, against his
requires that this sheet, already signed at the bottom, be signed
opponent and after failing to obtain such relief, repudiate or


twice. We cannot attribute to the statute such an intention. As where the testatrix was a neighbor is enough, in the absence of
these signatures must be written by the testator and the witnesses any proof to the contrary, to presume that she knew this dialect in
in the presence of each other, it appears that, if the signatures at which this will is written.
the bottom of the sheet guaranties its authenticity, another
signature on its left margin would be unnecessary; and if they d.o For the foregoing considerations, the judgment appealed from is
not guaranty, same signatures, affixed on another part of same hereby affirmed with costs against the appellants. So ordered.
sheet, would add nothing. We cannot assume that the statute
regards of such importance the place where the testator and the Arellano, C.J., Torres, Johnson, Araullo, Street, and Malcolm, JJ.,
witnesses must sign on the sheet that it would consider that their concur.
signatures written on the bottom do not guaranty the authenticity
of the sheet but, if repeated on the margin, give sufficient security. Judgment affirmed.

In requiring that each and every page of a will must be numbered 12 Suroza v. Honrado (1981) 110 SCRA 388
correlatively in letters placed on the upper part of the sheet, it is 196 Phil. 514
likewise clear that the object of Act No. 2645 is to know whether
any sheet of the will has been removed. But, when all the

dispositive parts of a will! are written x>n one sheet only, the
object of the statute disappears because the removal of this single
SECOND DIVISION
sheet, although Unnumbered, cannot be hidden.
[ Adm. Matter No. 2026-CFI, December 19, 1981 ]
What has been said is also applicable to the attestation clause.
Wherefore, without considering whether or not this clause is an NENITA DE VERA SUROZA, COMPLAINANT, VS. JUDGE
essential part of the will, we hold that in the one accompanying the REYNALDO P HONRADO OF THE COURT OF FIRST
will in question, the signatures of the testatrix and of the three INSTANCE OF RIZAL, PASIG BRANCH 25 AND
witnesses on the margin and the numbering of the pages of the EVANGELINE S. YUIPCO, DEPUTY CLERK OF COURT,
RESPONDENTS.
sheet are fprmalities not required by the statute. Moreover,

referring specially to the signature of the testatrix, we can add that
same is not necessary in the attestation clause because this, as its
D E C I S I O N
name implies, appertains only to the witnesses and not to the
testator since the latter does not attest, but executes, the will.
AQUINO, J.:
Synthesizing our opinion, we hold that in a will consisting two
sheets the first of which contains all the testamentary dispositions
and is signed at the bottom by the testator and three witnesses Should disciplinary action be taken against respondent judge for
and the second contains only the attestation clause and is signed having admitted to probate a will, which on its face is void because
also at the bottom by the three witnesses, it is not necessary that it is written in English, a language not known to the illiterate
both sheets be further signed on their margins by the testator and testatrix, and which is probably a forged will because she and the
the witnesses, or be paged. attesting witnesses did not appear before the notary as admitted
by the notary himself?
The object of the solemnities surrounding the execution of wills is That question arises under the pleadings filed in the testate case
to close the door against bad faith and fraud, to avoid substitution and in the certiorari case in the Court of Appeals which reveal the
of wills and testaments and to guaranty their "truth and following tangled strands of human relationship.
authenticity. Therefore the laws on this subject should be Mauro Suroza, a corporal in the 45th Infantry of the U. S. Army
interpreted in such a way as to attain these primordial ends. But, (Philippine Scouts), Fort McKinley, married Marcelina Salvador in
on the other hand, also one must not lose sight of the fact that it is 1923 (p. 150, Spec. Proc. No. 7816). They were childless. They
not the object of the law to restrain and curtail the exercise of the reared a boy named Agapito who used the surname Suroza and
right to make a will. So when an interpretation already given who considered them as his parents as shown in his 1945
assures such ends, any other interpretation whatsoever, that adds marriage contract with Nenita de Vera (p. 15, Rollo of CA-G. R. No.
nothing but demands more requisites entirely unnecessary, 08654-R; p. 148, Rollo of Testate Case showing that Agapito was 5
useless and frustrative of the testator's last will, must be years old when Mauro married Marcelina in 1923).
disregarded. Mauro died in 1942. Marcelina, as a veteran's widow, became a
pensioner of the Federal Government. That explains why on her
As another ground for this appeal, it is alleged the records do not death she had accumulated some cash in two banks.
show that the testatrix knew the dialect in which the will is written. Agapito and Nenita begot a child named Lilia who became a
But the circumstance appearing in the will itself that same was medical technologist and went abroad. Agapito also became a
executed in the city of Cebu and in the dialect of this locality



soldier. He was disabled and his wife Nenita was appointed as his occupants of the testatrix's house, among whom was Nenita V.
guardian in 1953 when he was declared an incompetent in Special Suroza, and to place Marina in possession thereof.
Proceeding No. 1807 of the Court of First Instance of Rizal, Pasig That order alerted Nenita to the existence of the testamentary
Branch I (p. 16, Rollo of CA-G. R. No. 08654-R). proceeding for the settlement of Marcelina's estate. She and the
In that connection, it should be noted that a woman named other occupants of the decedent' s house filed on April 18 in the
Arsenia de la Cruz wanted also to be his guardian in another said proceeding a motion to set aside the order of April 11 ejecting
proceeding. Arsenia tried to prove that Nenita was living them. They alleged that the decedent' s son Agapito was the sole
separately from Agapito and that she (Nenita) admitted to heir of the deceased, that he has a daughter named Lilia, that
Marcelina that she was unfaithful to Agapito (pp. 61-63, Record of Nenita was Agapito's guardian and that Marilyn was not Agapito's
testate case). daughter nor the decedent' s granddaughter (pp. 52-68, Record of
Judge Bienvenido A. Tan dismissed the second guardianship testate case). Later, they questioned the probate court's
proceeding and confirmed Nenita's appointment as guardian of jurisdiction to issue the ejectment order.
Agapito (p. 16, Rollo of CA case). Agapito has been staying in a In spite of the fact that Judge Honrado was already apprised that
veteran's hospital in San Francisco or Palo Alto, California (p. 87, persons, other than Marilyn, were claiming Marcelina' s estate, he
Record). issued on April 23 an order probating her supposed will wherein
On a date not indicated in the record, the spouses Antonio Sy and Marilyn was the instituted heiress (pp. 74-77, Record).
Hermogena Talan begot a child named Marilyn Sy, who, when a On April 24, Nenita filed in the testate case an omnibus petition "to
few days old, was entrusted to Arsenia de la Cruz (apparently a girl set aside proceedings, admit opposition with counter-petition for
friend of Agapito) and who was later delivered to Marcelina administration and preliminary injunction". Nenita in that motion
Salvador Suroza who brought her up as a supposed daughter of reiterated her allegation that Marilyn was a stranger to Marcelina,
Agapito and as her granddaughter (pp. 23-26, Rollo of CA-G.R. No. that the will was not duly executed and attested, that it was
SP-08654-R). Marilyn used the surname Suroza. She stayed with procured by means of undue influence employed by Marina and
Marcelina but as not legally adopted by Agapito. She married Marilyn and that the thumbmarks of the testatrix were procured by
Oscar Medrano and is residing at 7666 J. B. Roxas Street, Makati, fraud or trick.
apparently a neighbor of Marina Paje, a resident of 7668 J. B. Nenita further alleged that the institution of Marilyn as heir is void
Roxas Street. because of the preterition of Agapito and that Marina was not
Marcelina supposedly executed a notarial will in Manila on July 23, qualified to act as executrix (pp. 83-91, Record).
1973, when she was 73 years old. That will, which is in English, To that motion was attached an affidavit of Zenaida A. Peñaojas,
was thumbmarked by her. She was illiterate. Her letters in English the housemaid of Marcelina, who swore that the alleged will was
to the Veterans Administration were also thumbmarked by her (pp. falsified (p. 109, Record).
38-39, CA Rollo). In that will, Marcelina bequeathed all her estate Not content with her motion to set aside the ejectment order (filed
to her supposed granddaughter Marilyn. on April 18) and her omnibus motion to set aside the proceedings
Marcelina died on November 15, 1974 at the Veterans Hospital in (filed on April 24), Nenita filed the next day, April 25, an opposition
Quezon City. At the time of her death, she was a resident of 7374 to the probate of the will and a counter-petition for letters of
San Maximo Street, Olimpia, Makati, Rizal. She owned a administration. In that opposition, Nenita assailed the due
150-square meter lot and house in that place. She acquired the lot execution of the will and stated the names and addresses of
in 1966 (p. 134, Record of testate case). Marcelina's intestate heirs, her nieces and nephews (pp. 113-121,
On January 13, 1975, Marina Paje, alleged to be a laundry woman Record). Nenita was not aware of the decree of probate dated
of Marcelina (p. 97, CA Rollo) and the executrix in her will (the April 23, 1975.
alternate executrix was Juanita Macaraeg, mother of Oscar, To that opposition was attached an affidavit of Dominga Salvador
Marilyn's husband), filed with the Court of First Instance of Rizal, Teodocio, Marcelina' s niece, who swore that Marcelina never
Pasig Branch 25, a petition for the probate of Marcelina's alleged executed a will (pp. 124-125, Record).
will. The case was assigned to Judge Reynaldo P. Honrado. Marina in her answer to Nenita's motion to set aside the
As there was no opposition, Judge Honrado commissioned his proceedings admitted that Marilyn was not Marcelina' s
deputy clerk of court, Evangeline S. Yuipco, to hear the evidence. granddaughter but was the daughter of Agapito and Arsenia de la
The transcripts of the stenographic notes taken at the hearing Cruz and that Agapito was not Marcelina's son but merely an
before the deputy clerk of court are not in the record. anak-anakan who was not legally adopted (p. 143, Record).
In an order dated March 31, 1975, Judge Honrado appointed Judge Honrado in his order of July 17, 1975 dismissed Nenita's
Marina as administratrix. On the following day, April 1, Judge counter-petition for the issuance of letters of administration
Honrado issued two orders directing the Merchants Banking because of the nonappearance of her counsel at the hearing. She
Corporation and the Bank of America to allow Marina to withdraw moved for the reconsideration of that order.
the sum of P10,000 from the savings accounts of Marcelina S. In a motion dated December 5, 1975, for the consolidation of all
Suroza and Marilyn Suroza and requiring Corazon Castro, the pending incidents, Nenita V. Suroza reiterated her contention that
custodian of the passbooks, to deliver them to Marina. the alleged will is void because Marcelina did not appear before
Upon motion of Marina, Judge Honrado issued another order the notary and because it is written in English which is not known
dated April 11, 1975, instructing a deputy sheriff to eject the to her (pp. 208-209, Record).



Judge Honrado in his order of June 8, 1976 "denied" the various knowledge of Nenita's pension from the Federal Government.
incidents "raised" by Nenita (p. 284, Record). The 1978 complaint against Judge Honrado was brought to the
Instead of appealing from that order and the order probating the attention of this Court in the Court Administrator's memorandum of
will, Nenita "filed a case to annul" the probate proceedings (p. 332, September 25, 1980. The case was referred to Justice Juan A.
Record). That case, Civil Case No. 24276, Suroza vs. Paje and Sison of the Court of Appeals for investigation, report and
Honrado (p. 398, Record), was also assigned to Judge Honrado. recommendation. He submitted a report dated October 7, 1981.
He dismissed it in his order of February 16, 1977 (pp.398-402, On December 14, 1978, Nenita filed in the Court of Appeals against
Record). Judge Honrado a petition for certiorari and prohibition wherein
Judge Honrado in his order dated December 22, 1977, after noting she prayed that the will, the decree of probate and all the
that the executrix had delivered the estate to Marilyn, and that the proceedings in the probate case be declared void.
estate tax had been paid, closed the testamentary proceeding. Attached to the petition was the affidavit of Domingo P. Aquino,
About ten months later, in a verified complaint dated October 12, who notarized the will. He swore that the testatrix and the three
1978, filed in this Court, Nenita charged Judge Honrado with attesting witnesses did not appear before him and that he
having probated the fraudulent will of Marcelina. The complainant notarized the will "just to accommodate a brother-lawyer on the
reiterated her contention that the testatrix was illiterate as shown condition" that said lawyer would bring to the notary the testatrix
by the fact that she affixed her thumbmark to the will and that she and the witnesses but the lawyer never complied with his
did not know English, the language in which the will was written. commitment.
(In the decree of probate Judge Honrado did not make any finding The Court of Appeals dismissed the petition because Nenita's
that the will was written in a language known to the testatrix.) remedy was an appeal and her failure to do so did not entitle her
Nenita further alleged that Judge Honrado, in spite of his to resort to the special civil action of certiorari (Suroza vs.
knowledge that the testatrix had a son named Agapito (the Honrado, CA-G. R. No. SP-08654, May 29, 1981).
testatrix's supposed sole compulsory and legal heir), who was Relying on that decision, Judge Honrado filed on November 17,
preterited in the will, did not take into account the consequences 1981 a motion to dismiss the administrative case for having
of such a preterition. allegedly become moot and academic.
Nenita disclosed that she talked several times with Judge We hold that disciplinary action should be taken against
Honrado and informed him that the testatrix did not know the respondent judge for his improper disposition of the testate case
executrix Marina Paje, that the beneficiary's real name is Marilyn Sy which might have resulted in a miscarriage of justice because the
and that she was not the next of kin of the testatrix. decedent’s legal heirs and not the instituted heiress in the void will
Nenita denounced Judge Honrado for having acted corruptly in should have inherited the decedent's estate.
allowing Marina and her cohorts to withdraw from various banks A judge may be criminally liable for knowingly rendering an unjust
the deposits of Marcelina. judgment or interlocutory order or rendering a manifestly unjust
She also denounced Evangeline S. Yuipco, the deputy clerk of judgment or interlocutory order by reason of inexcusable
court, for not giving her access to the record of the probate case negligence or ignorance (Arts. 204 to 206, Revised Penal Code).
by alleging that it was useless for Nenita to oppose the probate Administrative action may be taken against a judge of the court of
since Judge Honrado would not change his decision. Nenita also first instance for serious misconduct or inefficiency (Sec. 67,
said that Evangeline insinuated that if she (Nenita) had ten Judiciary Law). Misconduct implies malice or a wrongful intent, not
thousand pesos, the case might be decided in her favor. a mere error of judgment. "For serious misconduct to exist, there
Evangeline allegedly advised Nenita to desist from claiming the must be reliable evidence showing that the judicial acts
properties of the testatrix because she (Nenita) had no rights complained of were corrupt or inspired by an intention to violate
thereto and, should she persist, she might lose her pension from the law, or were in persistent disregard of well-known legal rules"
the Federal Government. (In re Impeachment of Horrilleno, 43 Phil. 212, 214-215).
Judge Honrado in his brief comment did not deal specifically with Inefficiency implies negligence, incompetence, ignorance and
the allegations of the complaint. He merely pointed to the fact that carelessness. A judge would be inexcusably negligent if he failed
Nenita did not appeal from the decree of probate and that in a to observe in the performance of his duties that diligence,
motion dated July 6, 1976 she asked for a thirty-day period within prudence and circumspection which the law requires in the
which to vacate the house of the testatrix. rendition of any public service (In re Climaco, Adm. Case No. 134-J,
Evangeline S. Yuipco in her affidavit said that she never talked with Jan. 21, 1974, 55 SCRA 107, 119).
Nenita and that the latter did not mention Evangeline in her letter In this case, respondent judge, on perusing the will and noting that
dated September 11, 1978 to President Marcos. it was written in English and was thumbmarked by an obviously
Evangeline branded as a lie Nenita"s imputation that she illiterate testatrix, could have readily perceived that the will is void.
(Evangeline) prevented Nenita from having access to the record of In the opening paragraph of the will, it was stated that English was
the testamentary proceeding. Evangeline was not the custodian a language "understood and known" to the testatrix. But in its
of the record. Evangeline "strongly, vehemently and flatly denied" concluding paragraph, it was stated that the will was read to the
Nenita's charge that she (Evangeline) said that the sum of ten testatrix "and translated into Filipino language". (p. 16, Record of
thousand pesos was needed in order that Nenita could get a testate case). That could only mean that the will was written in a
favorable decision. Evangeline also denied that she has any 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
This is an appeal from a decision of the Court of Appeals
known to the testator. Thus, a will written in English, which was
disallowing the will of Antero Mercado dated January 3, 1943. The
not known to the Igorot testator, is void and was disallowed (Acop
will is written in the Ilocano dialect and contains the following
vs. Piraso, 52 Phil. 660).
attestation clause:
The hasty preparation of the will is shown in the attestation clause
and notarial acknowledgment where Marcelina Salvador Suroza is "We, the undersigned, lay these presents do declare that the
repeatedly referred to as the "testator" instead of "testatrix". foregoing testament of Antero Mercado was signed by himself and
Had respondent judge been careful and observant, he could have also by us below his name and of this attestation clause and that
noted not only the anomaly as to the language of the will but also of the left margin of the three pages thereof. Page three the
that there was something 'wrong in instituting the supposed continuation of this attestation clause; this will is written in Ilocano
granddaughter as sole heiress and giving nothing at all to her dialect which is spoken and understood by the testator, and it
supposed father who was still alive. bears the corresponding number in letter which compose of three
Furthermore, after the hearing conducted by respondent deputy pages and all of them were signed in the presence of the testator
clerk of court, respondent judge could have noticed that the and witnesses, and the witnesses in the presence of the testator
notary was not presented as a witness. and all and each and every one of us witnesses.
In spite of the absence of an opposition, respondent judge should "In testimony, whereof, we sign this testament, this the third day of
have personally conducted the hearing on the probate of the will January, one thousand nine hundred forty three, (1943) A. D.
so that he could have ascertained whether the will was validly (Sgd.) HUMERIANO EVANGELISTA (Sgd.) BOSENDO CORTES
executed. (Sgd.) "BIBIANA ILLEGIBLE."
Under the circumstances, we find his negligence and dereliction of The will appears to have been signed by Atty. Florentino Javier
duty to be inexcusable. who wrote the name of Antero Mercado, followed below by "A
WHEREFORE, for inefficiency in handling the testate case of ruego del testador" and the name of Florentino Javier. Antero
Marcelina S. Suroza, a fine equivalent to his salary for one month is Meroado is alleged to have written a cross immediately after his
imposed on respondent judge (his compulsory retirement falls on name. The Court of Appeals, reversing the judgment of the Court
December 25, 1981). of First Instance of Ilocos Norte, ruled that the attestation clause
The case against respondent Yuipco has become moot and failed (1) to certify that the will was signed on all the left margins of
academic because she is no longer employed in the judiciary. the three pages and at the end of the will by Atty. Florentine Javier
Since September 1, 1980 she has been assistant city fiscal of at the express request of the testator in the presence of the
Surigao City. She is beyond this Court's disciplinary jurisdiction testator and each and every one of the witnesses; (2) to certify that
(Peralta vs. Firme, Adm. Matter No. 2044-CFI, November 21, 1980, after the signing of the name of the testator by Atty. Javier at the
101 SCRA 225). former's request said testator has written & cross at the end of his
SO ORDERED. name and on the left margin of the three pages of which the will
Barredo, (Chairman), De Castro, Ericta, and Escolin, JJ., concur. consists and at the end thereof; (3) to certify that the three
Concepcion, Jr., J., on leave. witnesses signed the will in all the pages thereof in the presence
Abad Santos, J., no part. of the testator and of each other.
In our opinion, the attestation clause is fatally defective for failing
to state that Antero Mercado caused Atty. Florentino Javier to
13 In re: Abangan v. Abangan, G.R. No. 13431, write the testator's name under his express direction, as required
[November 12, 1919), 40 PHIL 476-480) by section 618 of the Code of Civil Procedure. The herein
14 Suroza v. Honrado, A.M. No. 2026-CFI, petitioner (who is appealing by way of certiorari from the decision
[December 19, 1981]
of the Court of Appeals) argues, however, that there is no need for
15 Mercado vs. Lacuesta G.R. No. L-4067
such recital because the cross written by the testator after his
November 29, 1951
90 Phil. 489 name is a sufficient signature and the signature of Atty. Florentino
Javier is a surplusage. Petitioner's theory is chat the cross is as
much a signature as a thumbmark, the latter having been held
Sufficient by this Court in the cases of De Gala vs. Gonzales and
[ G. R. No. L-4067, November 29, 1951 ]
Ona, 53 Phil. 104; Dolar vs. Diancin, 55 Phil. 479; Payad vs.
Tolentino, 62 Phil. 848; Nejpe vs. Neyra, 42 O. G. 2817; and Lopez
IN THE MATTER OF THE WILL OF ARTERO MERCADO,
vs. y Liboro, 46 O. G., 3upp. No. 1, p. 211.
DECEASED. ROSARIO GARCIA, PETITIONER, VS. JULIANA
LACUESTA, ET AL., RESPONDENTS. It is not here pretended that the cross appearing on the will is the
usual signature of Antero Mercado or even one of the ways by
D E C I S I O N which he signed his name. After mature reflection we are not
prepared to liken the mere sign of a cross to a thumbmark, and the
PARAS, C.J.: reason is obvious. The cross cannot and does not have the


trustworthiness of a thumbmark. further alleged that the will, if Abada really executed it, should be
What has been said makes it unnecessary for us to determine disallowed for the following reasons: (1) it was not executed and
whether there is a sufficient recital in the attestation clause as to attested as required by law; (2) it was not intended as the last will
the signing of the will by the testator in the presence of the of the testator; and (3) it was procured by undue and improper
witnesses, and by the latter in the presence of the testator and of pressure and influence on the part of the beneficiaries. Citing the
each other. same grounds invoked by Caponong, the alleged intestate heirs of
Wherefore, the appealed decision is hereby affirmed, with costs Abada, namely, Joel, Julian, Paz, Evangeline, Geronimo, Humberto,
against the petitioner. So ordered. Teodora and Elena Abada (“Joel Abada, et al.”), and Levi, Leandro,
Feria, Pablo, Bengzon, Padilla, Reyes, Jugo, and Bautista Angelo, Antonio, Florian, Hernani and Carmela Tronco (“Levi Tronco, et
JJ., concur. al.”), also opposed the petition. The oppositors are the nephews,
nieces and grandchildren of Abada and Toray.

16 Testate Estate of Abada v. Abaja, G. R. No. On 13 September 1968, Alipio filed another petition[6] before the
147145, (January 31, 2005) RTC-Kabankalan, docketed as SP No. 071 (312-8669), for the
490 Phil. 671 probate of the last will and testament of Toray. Caponong, Joel
Abada, et al., and Levi Tronco, et al. opposed the petition on the
same grounds they cited in SP No. 070 (313-8668).

FIRST DIVISION On 20 September 1968, Caponong filed a petition[7] before the
RTC-Kabankalan, docketed as SP No. 069 (309), praying for the
[ G.R. NO. 147145, January 31, 2005 ]
issuance in his name of letters of administration of the intestate
estate of Abada and Toray.
TESTATE ESTATE OF THE LATE ALIPIO ABADA, BELINDA
CAPONONG-NOBLE, PETITIONER, VS. ALIPIO ABAJA AND
In an Order dated 14 August 1981, the RTC-Kabankalan admitted to
NOEL ABELLAR, RESPONDENTS.
probate the will of Toray. Since the oppositors did not file any
DECISION motion for reconsideration, the order allowing the probate
of Toray’s will became final and executory.[8]

CARPIO, J.:
In an order dated 23 November 1990, the RTC-Kabankalan

designated Belinda Caponong-Noble (“Caponong-Noble”) Special

Administratrix of the estate of Abada and Toray.[9] Caponong-Noble
The Case
moved for the dismissal of the petition for probate of the will of

Abada. The RTC-Kabankalan denied the motion in an Order dated
Before the Court is a petition for review[1] assailing the Decision[2]
20 August 1991.[10]
of the Court of Appeals of 12 January 2001 in CA-G.R. CV No.
47644. The Court of Appeals sustained the Resolution[3] of the
Sometime in 1993, during the proceedings, Presiding Judge
Regional Trial Court of Kabankalan, Negros Occidental, Branch 61
Rodolfo S. Layumas discovered that in an Order dated 16 March
(“RTC-Kabankalan”), admitting to probate the last will and
1992, former Presiding Judge Edgardo Catilo had already
testament of Alipio Abada (“Abada”).
submitted the case for decision. Thus, the RTC-Kabankalan

rendered a Resolution dated 22 June 1994, as follows:
The Antecedent Facts
There having been sufficient notice to the heirs as required by law;

that there is substantial compliance with the formalities of a Will as
Abada died sometime in May 1940.[4] His widow Paula Toray
the law directs and that the petitioner through his testimony and
(“Toray”) died sometime in September 1943. Both died without
the deposition of Felix Gallinero was able to establish the
legitimate children.
regularity of the execution of the said Will and further, there being

no evidence of bad faith and fraud, or substitution of the said Will,
On 13 September 1968, Alipio C. Abaja (“Alipio”) filed with the then
the Last Will and Testament of Alipio Abada dated June 4, 1932 is
Court of First Instance of Negros Occidental (now
admitted and allowed probate.
RTC-Kabankalan) a petition,[5] docketed as SP No. 070 (313-8668),

for the probate of the last will and testament (“will”) of Abada.
As prayed for by counsel, Noel Abbellar[11] is appointed
Abada allegedly named as his testamentary heirs his natural
administrator of the estate of Paula Toray who shall discharge his
children Eulogio Abaja (“Eulogio”) and Rosario Cordova. Alipio is
duties as such after letters of administration shall have been issued
the son of Eulogio.
in his favor and after taking his oath and filing a bond in the

amount of Ten Thousand (P10,000.00) Pesos.
Nicanor Caponong (“Caponong”) opposed the petition on the

ground that Abada left no will when he died in 1940. Caponong
Mrs. Belinda C. Noble, the present administratrix of the estate of



Alipio Abada shall continue discharging her duties as such until clause of Abada’s will.[16] Section 618 of the Code of Civil
further orders from this Court. Procedure, as amended, provides:
SEC. 618. Requisites of will. – No will, except as provided in the
[12]
SO ORDERED. The RTC-Kabankalan ruled on the only issue preceding section,[17] shall be valid to pass any estate, real or
raised by the oppositors in their motions to dismiss the petition for personal, nor charge or affect the same, unless it be written in the
probate, that is, whether the will of Abada has an attestation language or dialect known by the testator and signed by him, or
clause as required by law. The RTC-Kabankalan further held that by the testator’s name written by some other person in his
the failure of the oppositors to raise any other matter forecloses all presence, and by his express direction, and attested and
other issues. subscribed by three or more credible witnesses in the presence of
the testator and of each other. The testator or the person
Not satisfied with the Resolution, Caponong-Noble filed a notice of requested by him to write his name and the instrumental
appeal. witnesses of the will, shall also sign, as aforesaid, each and every
page thereof, on the left margin, and said pages shall be
In a Decision promulgated on 12 January 2001, the Court of numbered correlatively in letters placed on the upper part of each
Appeals affirmed the Resolution of the RTC-Kabankalan. The sheet. The attestation shall state the number of sheets or pages
appellate court found that the RTC-Kabankalan properly admitted used, upon which the will is written, and the fact that the testator
to probate the will of Abada. signed the will and every page thereof, or caused some other
person to write his name, under his express direction, in the
Hence, the present recourse by Caponong-Noble. presence of three witnesses, and the latter witnessed and signed
the will and all pages thereof in the presence of the testator and of
The Issues each other.
Requisites of a Will under the Code of Civil Procedure
The petition raises the following issues:
1. What laws apply to the probate of the last will of Abada; Under Section 618 of the Code of Civil Procedure, the requisites of
a will are the following:
2. Whether the will of Abada requires acknowledgment (1) The will must be written in the language or dialect known by
[13]
before a notary public; the testator;

3. Whether the will must expressly state that it is written in a (2) The will must be signed by the testator, or by the testator’s
language or dialect known to the testator; name written by some other person in his presence, and by his
express direction;
4. Whether the will of Abada has an attestation clause, and if
so, whether the attestation clause complies with the (3) The will must be attested and subscribed by three or more
requirements of the applicable laws; credible witnesses in the presence of the testator and of each
other;
5. Whether Caponong-Noble is precluded from raising the
issue of whether the will of Abada is written in a language (4) The testator or the person requested by him to write his name
known to Abada; and the instrumental witnesses of the will must sign each and
every page of the will on the left margin;
6. Whether evidence aliunde may be resorted to in the
probate of the will of Abada. (5) The pages of the will must be numbered correlatively in letters
The Ruling of the Court placed on the upper part of each sheet;

The Court of Appeals did not err in sustaining the RTC-Kabankalan (6) The attestation shall state the number of sheets or pages
in admitting to probate the will of Abada. used, upon which the will is written, and the fact that the testator
signed the will and every page of the will, or caused some other
The Applicable Law person to write his name, under his express direction, in the
presence of three witnesses, and the witnesses witnessed and
Abada executed his will on 4 June 1932. The laws in force at that signed the will and all pages of the will in the presence of the
time are the Civil Code of 1889 or the Old Civil Code, and Act No. testator and of each other.Caponong-Noble asserts that the will of
[14]
190 or the Code of Civil Procedure which governed the Abada does not indicate that it is written in a language or dialect
execution of wills before the enactment of the New Civil Code. known to the testator. Further, she maintains that the will is not
acknowledged before a notary public. She cites in particular
The matter in dispute in the present case is the attestation clause Articles 804 and 805 of the Old Civil Code, thus:
in the will of Abada. Section 618 of the Code of Civil Procedure, as Art. 804. Every will must be in writing and executed in [a]
[15]
amended by Act No. 2645, governs the form of the attestation language or dialect known to the testator.


voluntad y testamento en presencia de nosotros, habiendo

Art. 806. Every will must be acknowledged before a notary public tambien el testador firmado en nuestra presencia en el margen
[18]
by the testator and the witnesses. xxx Caponong-Noble actually izquierdo de todas y cada una de las hojas del mismo. Y en
[19]
cited Articles 804 and 806 of the New Civil Code. Article 804 of testimonio de ello, cada uno de nosotros lo firmamos en presencia
the Old Civil Code is about the rights and obligations of de nosotros y del testador al pie de este documento y en el
administrators of the property of an absentee, while Article 806 of margen izquierdo de todas y cada una de las dos hojas de que
the Old Civil Code defines a legitime. esta compuesto el mismo, las cuales estan paginadas
correlativamente con las letras “UNO” y “DOS’ en la parte superior
Articles 804 and 806 of the New Civil Code are new provisions. de la carrilla.[28]Caponong-Noble proceeds to point out several
Article 804 of the New Civil Code is taken from Section 618 of the defects in the attestation clause. Caponong-Noble alleges that the
[20]
Code of Civil Procedure. Article 806 of the New Civil Code is attestation clause fails to state the number of pages on which the
[21]
taken from Article 685 of the Old Civil Code which provides: will is written.
Art. 685. The notary and two of the witnesses who authenticate
the will must be acquainted with the testator, or, should they not The allegation has no merit. The phrase “en el margen izquierdo
know him, he shall be identified by two witnesses who are de todas y cada una de las dos hojas de que esta compuesto el
acquainted with him and are known to the notary and to the mismo” which means “in the left margin of each and every one of
attesting witnesses. The notary and the witnesses shall also the two pages consisting of the same” shows that the will consists
endeavor to assure themselves that the testator has, in their of two pages. The pages are numbered correlatively with the
judgment, the legal capacity required to make a will. letters “ONE” and “TWO” as can be gleaned from the phrase “las
cuales estan paginadas correlativamente con las letras “UNO” y
Witnesses authenticating a will without the attendance of a notary, “DOS.”
in cases falling under Articles 700 and 701, are also required to
[22]
know the testator.However, the Code of Civil Procedure Caponong-Noble further alleges that the attestation clause fails to
repealed Article 685 of the Old Civil Code. Under the Code of state expressly that the testator signed the will and its every page
Civil Procedure, the intervention of a notary is not necessary in the in the presence of three witnesses. She then faults the Court of
execution of any will.[23] Therefore, Abada’s will does not require Appeals for applying to the present case the rule on substantial
acknowledgment before a notary public. compliance found in Article 809 of the New Civil Code.[29]

Caponong-Noble points out that nowhere in the will can one The first sentence of the attestation clause reads: “Suscrito y
discern that Abada knew the Spanish language. She alleges that declarado por el testador Alipio Abada como su ultima voluntad y
such defect is fatal and must result in the disallowance of the will. testamento en presencia de nosotros, habiendo tambien el
On this issue, the Court of Appeals held that the matter was not testador firmado en nuestra presencia en el margen izquierdo de
raised in the motion to dismiss, and that it is now too late to raise todas y cada una de las hojas del mismo.” The English translation
the issue on appeal. We agree with Caponong-Noble that the is: “Subscribed and professed by the testator Alipio Abada as his
[24]
doctrine of estoppel does not apply in probate proceedings. In last will and testament in our presence, the testator having also
addition, the language used in the will is part of the requisites signed it in our presence on the left margin of each and every one
under Section 618 of the Code of Civil Procedure and the Court of the pages of the same.” The attestation clause clearly states
deems it proper to pass upon this issue. that Abada signed the will and its every page in the presence of
the witnesses.
Nevertheless, Caponong-Noble’s contention must still fail. There
is no statutory requirement to state in the will itself that the testator However, Caponong-Noble is correct in saying that the attestation
knew the language or dialect used in the will.[25] This is a matter clause does not indicate the number of witnesses. On this point,
[26]
that a party may establish by proof aliunde. Caponong-Noble the Court agrees with the appellate court in applying the rule on
further argues that Alipio, in his testimony, has failed, among substantial compliance in determining the number of witnesses.
others, to show that Abada knew or understood the contents of While the attestation clause does not state the number of
the will and the Spanish language used in the will. However, Alipio witnesses, a close inspection of the will shows that three
testified that Abada used to gather Spanish-speaking people in witnesses signed it.
their place. In these gatherings, Abada and his companions would
[27]
talk in the Spanish language. This sufficiently proves that Abada This Court has applied the rule on substantial compliance even
speaks the Spanish language. before the effectivity of the New Civil Code. In Dichoso de Ticson
v. De Gorostiza,[30] the Court recognized that there are two
The Attestation Clause of Abada’s Will divergent tendencies in the law on wills, one being based on strict
construction and the other on liberal construction. In Dichoso, the
A scrutiny of Abada’s will shows that it has an attestation clause. Court noted that Abangan v. Abangan,[31] the basic case on the
The attestation clause of Abada’s will reads: liberal construction, is cited with approval in later decisions of the
Suscrito y declarado por el testador Alipio Abada como su ultima Court.


desirable. However, it is not imperative that a parrot-like copy of
In Adeva vda. De Leynez v. Leynez,[32] the petitioner, arguing for the words of the statute be made. It is sufficient if from the
liberal construction of applicable laws, enumerated a long line of language employed it can reasonably be deduced that the
cases to support her argument while the respondent, contending attestation clause fulfills what the law expects of it.[35]The last part
that the rule on strict construction should apply, also cited a long of the attestation clause states “en testimonio de ello, cada uno
series of cases to support his view. The Court, after examining the de nosotros lo firmamos en presencia de nosotros y del testador.”
cases invoked by the parties, held: In English, this means “in its witness, every one of us also signed in
x x x It is, of course, not possible to lay down a general rule, rigid our presence and of the testator.” This clearly shows that the
and inflexible, which would be applicable to all cases. More than attesting witnesses witnessed the signing of the will of the testator,
anything else, the facts and circumstances of record are to be and that each witness signed the will in the presence of one
considered in the application of any given rule. If the surrounding another and of the testator.
circumstances point to a regular execution of the will, and the
instrument appears to have been executed substantially in WHEREFORE, we AFFIRM the Decision of the Court of Appeals of
accordance with the requirements of the law, the inclination 12 January 2001 in CA-G.R. CV No. 47644.
should, in the absence of any suggestion of bad faith, forgery or
fraud, lean towards its admission to probate, although the SO ORDERED.
document may suffer from some imperfection of language, or
other non-essential defect. x x x. Davide, Jr., C.J., (Chairman), Quisumbing, Ynares-Santiago, and
Azcuna, JJ., concur.
An attestation clause is made for the purpose of preserving, in
permanent form, a record of the facts attending the execution of
the will, so that in case of failure of the memory of the subscribing 17 Azuela v. CA, GR No. 122880 April 12, 2006
witnesses, or other casualty, they may still be proved. (Thompson
521 Phil. 263
on Wills, 2d ed., sec. 132.) A will, therefore, should not be rejected
where its attestation clause serves the purpose of the law. x x x
[33]

We rule to apply the liberal construction in the probate of
Abada’s will. Abada’s will clearly shows four signatures: that of
THIRD DIVISION
Abada and of three other persons. It is reasonable to conclude
that there are three witnesses to the will. The question on the [ G.R. NO. 122880, April 12, 2006 ]
number of the witnesses is answered by an examination of the will
itself and without the need for presentation of evidence aliunde. FELIX AZUELA, PETITIONER, VS. COURT OF APPEALS,
The Court explained the extent and limits of the rule on liberal GERALDA AIDA CASTILLO SUBSTITUTED BY ERNESTO G.
CASTILLO, RESPONDENTS.
construction, thus:

[T]he so-called liberal rule does not offer any puzzle or difficulty, D E C I S I O N
nor does it open the door to serious consequences. The later
decisions do tell us when and where to stop; they draw the
dividing line with precision. They do not allow evidence aliunde TINGA, J.:
to fill a void in any part of the document or supply missing
details that should appear in the will itself. They only permit a The core of this petition is a highly defective notarial will,
probe into the will, an exploration within its confines, to purportedly executed by Eugenia E. Igsolo (decedent), who died
ascertain its meaning or to determine the existence or absence on 16 December 1982 at the age of 80. In refusing to give legal
of the requisite formalities of law. This clear, sharp limitation recognition to the due execution of this document, the Court is
eliminates uncertainty and ought to banish any fear of dire provided the opportunity to assert a few important doctrinal rules
results.[34] (Emphasis supplied)The phrase “en presencia de in the execution of notarial wills, all self-evident in view of Articles
nosotros” or “in our presence” coupled with the signatures 805 and 806 of the Civil Code.
appearing on the will itself and after the attestation clause could
only mean that: (1) Abada subscribed to and professed before the A will whose attestation clause does not contain the number of
three witnesses that the document was his last will, and (2) Abada pages on which the will is written is fatally defective. A will
signed the will and the left margin of each page of the will in the whose attestation clause is not signed by the instrumental
presence of these three witnesses. witnesses is fatally defective. And perhaps most importantly, a
will which does not contain an acknowledgment, but a mere
Finally, Caponong-Noble alleges that the attestation clause does jurat, is fatally defective. Any one of these defects is sufficient to
not expressly state the circumstances that the witnesses deny probate. A notarial will with all three defects is just aching
witnessed and signed the will and all its pages in the presence of for judicial rejection.
the testator and of each other. This Court has ruled:
Precision of language in the drafting of an attestation clause is There is a distinct and consequential reason the Civil Code


provides a comprehensive catalog of imperatives for the proper (Tagapagmana)

execution of a notarial will. Full and faithful compliance with all the
detailed requisites under Article 805 of the Code leave little room PATUNAY NG MGA SAKSI
for doubt as to the validity in the due execution of the notarial will.
Article 806 likewise imposes another safeguard to the validity of Ang kasulatang ito, na binubuo ng ____ dahon pati ang huling
notarial wills - that they be acknowledged before a notary public dahong ito, na ipinahayag sa amin ni Eugenia E. Igsolo,
by the testator and the witnesses. A notarial will executed with tagapagmana na siya niyang Huling Habilin, ngayon ika-10 ng
indifference to these two codal provisions opens itself to nagging Hunyo 1981, ay nilagdaan ng nasabing tagapagmana sa ilalim ng
questions as to its legitimacy. kasulatang nabanggit at sa kaliwang panig ng lahat at bawa't
dahon, sa harap ng lahat at bawa't sa amin, at kami namang mga
The case stems from a petition for probate filed on 10 April 1984 saksi ay lumagda sa harap ng nasabing tagapagmana at sa harap
with the Regional Trial Court (RTC) of Manila. The petition filed by ng lahat at bawa't isa sa amin, sa ilalim ng nasabing kasulatan at sa
petitioner Felix Azuela sought to admit to probate the notarial will kaliwang panig ng lahat at bawa't dahon ng kasulatan ito.
of Eugenia E. Igsolo, which was notarized on 10 June 1981.
Petitioner is the son of the cousin of the decedent. EUGENIA E. IGSOLO
address: 500 San Diego St.
The will, consisting of two (2) pages and written in the vernacular Sampaloc, Manila Res. Cert. No. A-7717-37
Pilipino, read in full: Issued at Manila on March 10, 1981.
HULING HABILIN NI EUGENIA E. IGSOLO
QUIRINO AGRAVA
SA NGALAN NG MAYKAPAL, AMEN: address: 1228-Int. 3, Kahilum
Pandacan, Manila Res. Cert. No. A-458365
AKO, si EUGENIA E. IGSOLO, nakatira sa 500 San Diego St., Issued at Manila on Jan. 21, 1981
Sampaloc, Manila, pitongput siyam (79) na gulang, nasa hustong
pagi-isip, pag-unawa at memoria ay nag-hahayag na ito na ang LAMBERTO C. LEAÑO
aking huling habilin at testamento, at binabali wala ko lahat ang address: Avenue 2, Blcok 7,
naunang ginawang habilin o testamento: Lot 61, San Gabriel, G.MA., Cavite Res.
Cert. No. A-768277 issued at Carmona, Cavite
Una-Hinihiling ko na ako ay mailibing sa Sementerio del Norte, La on Feb. 7, 1981
Loma sang-ayong sa kaugalian at patakaran ng simbahang
katoliko at ang taga-pag-ingat (Executor) ng habiling ito ay JUANITO ESTRERA
magtatayo ng bantayog upang silbing ala-ala sa akin ng aking address: City Court Compound,
pamilya at kaibigan; City of Manila Res. Cert. No. A574829
Issued at Manila on March 2, 1981.
Pangalawa-Aking ipinagkakaloob at isinasalin ang lahat ng
karapatan sa aking pamangkin na si Felix Azuela, na siyang Nilagdaan ko at ninotario ko ngayong 10 ng Hunyo 10, 1981 dito sa
nag-alaga sa akin sa mahabang panahon, yaong mga bahay na Lungsod ng Maynila.
nakatirik sa lote numero 28, Block 24 at nakapangalan sa
Pechaten Korporasyon, ganoon din ibinibigay ko ang lahat ng (Sgd.)
karapatan sa bahay na nakatirik sa inoopahan kong lote, numero PETRONIO Y. BAUTISTA
43, Block 24 na pag-aari ng Pechaten Corporation. Ipinagkakaloob Doc. No. 1232 ; bsp; & NOTARIO PUBLIKO
kong buong buo ang lahat ng karapatan sa bahay at lupa na nasa Page No. 86 ; Until Dec. 31, 1981
500 San Diego St., Lot 42, Block 24, Sampaloc, Manila kay Felix Book No. 43 ; PTR-152041-1/2/81-Manila
Azuela at ang pagkakaloob kong ito ay walang pasubali't at Series of 1981 TAN # 1437-977-8[1]The three named witnesses to
kondiciones; the will affixed their signatures on the left-hand margin of both
pages of the will, but not at the bottom of the attestation clause.
Pangatlo- Na ninunumbrahan ko si VART PAGUE na siyang
nagpapatupad ng huling habiling ito at kagustuhan ko rin na hindi The probate petition adverted to only two (2) heirs, legatees and
na kailanman siyang mag-lagak ng piyansiya. devisees of the decedent, namely: petitioner himself, and one
Irene Lynn Igsolo, who was alleged to have resided abroad.
Aking nilagdaan ang Huling Habilin na ito dito sa Maynila ika 10 ng Petitioner prayed that the will be allowed, and that letters
Hunyo, 1981. testamentary be issued to the designated executor, Vart Prague.

The petition was opposed by Geralda Aida Castillo (Geralda
(Sgd.) Castillo), who represented herself as the attorney-in-fact of "the 12
EUGENIA E. IGSOLO legitimate heirs" of the decedent.[2] Geralda Castillo claimed that



the will is a forgery, and that the true purpose of its emergence on the left margin of the second page of the will containing the
was so it could be utilized as a defense in several court cases filed attestation clause and acknowledgment, instead of at the bottom
by oppositor against petitioner, particularly for forcible entry and thereof, substantially satisfies the purpose of identification and
usurpation of real property, all centering on petitioner's right to attestation of the will.
[3]
occupy the properties of the decedent. It also asserted that
contrary to the representations of petitioner, the decedent was With regard to the oppositor's argument that the will was not
actually survived by 12 legitimate heirs, namely her grandchildren, numbered correlatively in letters placed on upper part of each
who were then residing abroad. Per records, it was subsequently page and that the attestation did not state the number of pages
alleged that decedent was the widow of Bonifacio Igsolo, who thereof, it is worthy to note that the will is composed of only two
died in 1965,[4] and the mother of a legitimate child, Asuncion E. pages. The first page contains the entire text of the testamentary
[5]
Igsolo, who predeceased her mother by three (3) months. dispositions, and the second page contains the last portion of the

attestation clause and acknowledgement. Such being so, the
Oppositor Geralda Castillo also argued that the will was not defects are not of a serious nature as to invalidate the will. For the
executed and attested to in accordance with law. She pointed out same reason, the failure of the testatrix to affix her signature on
that decedent's signature did not appear on the second page of the left margin of the second page, which contains only the last
the will, and the will was not properly acknowledged. These twin portion of the attestation clause and acknowledgment is not a fatal
arguments are among the central matters to this petition. defect.

After due trial, the RTC admitted the will to probate, in an Order As regards the oppositor's assertion that the signature of the
[6]
dated 10 August 1992. The RTC favorably took into account the testatrix on the will is a forgery, the testimonies of the three
testimony of the three (3) witnesses to the will, Quirino Agrava, subscribing witnesses to the will are convincing enough to
Lamberto Leano, and Juanito Estrada. The RTC also called to fore establish the genuineness of the signature of the testatrix and the
"the modern tendency in respect to the formalities in the execution due execution of the will.[8]The Order was appealed to the Court of
of a will x x x with the end in view of giving the testator more Appeals by Ernesto Castillo, who had substituted his since
[7]
freedom in expressing his last wishes;" and from this perspective, deceased mother-in-law, Geralda Castillo. In a Decision dated 17
rebutted oppositor's arguments that the will was not properly August 1995, the Court of Appeals reversed the trial court and
executed and attested to in accordance with law. ordered the dismissal of the petition for probate.[9] The Court of
After a careful examination of the will and consideration of the Appeals noted that the attestation clause failed to state the
testimonies of the subscribing and attesting witnesses, and having number of pages used in the will, thus rendering the will void and
in mind the modern tendency in respect to the formalities in the undeserving of probate.[10]

execution of a will, i.e., the liberalization of the interpretation of the
law on the formal requirements of a will with the end in view of Hence, the present petition.
giving the testator more freedom in expressing his last wishes, this
Court is persuaded to rule that the will in question is authentic and Petitioner argues that the requirement under Article 805 of the
had been executed by the testatrix in accordance with law. Civil Code that "the number of pages used in a notarial will be
stated in the attestation clause" is merely directory, rather than
On the issue of lack of acknowledgement, this Court has noted mandatory, and thus susceptible to what he termed as "the
that at the end of the will after the signature of the testatrix, the substantial compliance rule."[11]

following statement is made under the sub-title, "Patunay Ng Mga
Saksi": The solution to this case calls for the application of Articles 805
"Ang kasulatang ito, na binubuo ng _____ dahon pati ang huling and 806 of the Civil Code, which we replicate in full.
dahong ito, na ipinahayag sa amin ni Eugenia N. Igsolo, Art. 805. Every will, other than a holographic will, must be
tagapagmana na siya niyang Huling Habilin, ngayong ika-10 ng subscribed at the end thereof by the testator himself or by the
Hunyo 1981, ay nilagdaan ng nasabing tagapagmana sa ilalim ng testator's name written by some other person in his presence, and
kasulatang nabanggit at sa kaliwang panig ng lahat at bawa't by his express direction, and attested and subscribed by three or
dahon, sa harap ng lahat at bawa't sa amin, at kami namang mga more credible witnesses in the presence of the testator and of one
saksi ay lumagda sa harap ng nasabing tagapagmana at sa harap another.
ng lahat at bawa't isa sa amin, sa ilalim ng nasabing kasulatan at sa
kaliwang panig ng lahat at bawa't dahon ng kasulatan ito."The The testator or the person requested by him to write his name and
aforequoted declaration comprises the attestation clause and the the instrumental witnesses of the will, shall also sign, as aforesaid,
acknowledgement and is considered by this Court as a substantial each and every page thereof, except the last, on the left margin,
compliance with the requirements of the law. and all the pages shall be numbered correlatively in letters placed
on the upper part of each page.
On the oppositor's contention that the attestation clause was not
signed by the subscribing witnesses at the bottom thereof, this The attestation shall state the number of pages used upon which
Court is of the view that the signing by the subscribing witnesses the will is written, and the fact that the testator signed the will and



every page thereof, or caused some other person to write his to the wills concerned therein despite the fact that the attestation
name, under his express direction, in the presence of the clause did not state the number of pages of the will. Yet the
instrumental witnesses, and that the latter witnessed and signed appellate court itself considered the import of these two cases,
the will and all the pages thereof in the presence of the testator and made the following distinction which petitioner is unable to
and of one another. rebut, and which we adopt with approval:
Even a cursory examination of the Will (Exhibit "D"), will readily
If the attestation clause is in a language not known to the show that the attestation does not state the number of pages used
witnesses, it shall be interpreted to them. upon which the will is written. Hence, the Will is void and
undeserving of probate.
Art. 806. Every will must be acknowledged before a notary public
by the testator and the witnesses. The notary public shall not be We are not impervious of the Decisions of the Supreme Court in
required to retain a copy of the will, or file another with the office "Manuel Singson versus Emilia Florentino, et al., 92 Phil. 161 and
of the Clerk of Court.The appellate court, in its Decision, Apolonio [Taboada] versus Hon. Avelino Rosal, et al., 118 SCRA
considered only one defect, the failure of the attestation clause to 195," to the effect that a will may still be valid even if the
state the number of pages of the will. But an examination of the attestation does not contain the number of pages used upon
will itself reveals several more deficiencies. which the Will is written. However, the Decisions of the Supreme
Court are not applicable in the aforementioned appeal at bench.
As admitted by petitioner himself, the attestation clause fails to This is so because, in the case of "Manuel Singson versus Emilia
[12]
state the number of pages of the will. There was an incomplete Florentino, et al., supra," although the attestation in the subject Will
attempt to comply with this requisite, a space having been allotted did not state the number of pages used in the will, however, the
for the insertion of the number of pages in the attestation clause. same was found in the last part of the body of the Will:
Yet the blank was never filled in; hence, the requisite was left
uncomplied with. "x x x
The law referred to is article 618 of the Code of Civil Procedure, as
The Court of Appeals pounced on this defect in reversing the trial amended by Act No. 2645, which requires that the attestation
court, citing in the process Uy Coque v. Navas L. Sioca[13] and In re: clause shall state the number of pages or sheets upon which the
[14]
Will of Andrada. In Uy Coque, the Court noted that among the will is written, which requirement has been held to be mandatory
defects of the will in question was the failure of the attestation as an effective safeguard against the possibility of interpolation or
[15]
clause to state the number of pages contained in the will. In omission of some of the pages of the will to the prejudice of the
ruling that the will could not be admitted to probate, the Court heirs to whom the property is intended to be bequeathed (In re
made the following consideration which remains highly relevant to Will of Andrada, 42 Phil. 180; Uy Coque vs. Navas L. Sioca, 43 Phil.,
this day: "The purpose of requiring the number of sheets to be 405; Gumban vs. Gorcho, 50 Phil. 30; Quinto vs. Morata, 54 Phil.
stated in the attestation clause is obvious; the document might 481; Echevarria vs. Sarmiento, 66 Phil. 611). The ratio decidendi of
easily be so prepared that the removal of a sheet would these cases seems to be that the attestation clause must contain a
completely change the testamentary dispositions of the will and statement of the number of sheets or pages composing the will
in the absence of a statement of the total number of sheets such and that if this is missing or is omitted, it will have the effect of
removal might be effected by taking out the sheet and changing invalidating the will if the deficiency cannot be supplied, not by
the numbers at the top of the following sheets or pages. If, on evidence aliunde, but by a consideration or examination of the will
the other hand, the total number of sheets is stated in the itself. But here the situation is different. While the attestation
attestation clause the falsification of the document will involve the clause does not state the number of sheets or pages upon which
inserting of new pages and the forging of the signatures of the the will is written, however, the last part of the body of the will
testator and witnesses in the margin, a matter attended with much contains a statement that it is composed of eight pages, which
[16]
greater difficulty." circumstance in our opinion takes this case out of the rigid rule of

construction and places it within the realm of similar cases where a
The case of In re Will of Andrada concerned a will the attestation broad and more liberal view has been adopted to prevent the will
clause of which failed to state the number of sheets or pages of the testator from being defeated by purely technical
used. This consideration alone was sufficient for the Court to considerations." (page 165-165, supra) (Underscoring supplied)In
declare "unanim[ity] upon the point that the defect pointed out in "Apolonio Tabaoda versus Hon. Avelino Rosal, et al." supra, the
[17]
the attesting clause is fatal." It was further observed that "it notarial acknowledgement in the Will states the number of pages
cannot be denied that the x x x requirement affords additional used in the:
security against the danger that the will may be tampered with; "x x x
and as the Legislature has seen fit to prescribe this requirement, it
[18]
must be considered material." We have examined the will in question and noticed that the

attestation clause failed to state the number of pages used in
[19]
Against these cited cases, petitioner cites Singson v. Florentino writing the will. This would have been a fatal defect were it not for
[20]
and Taboada v. Hon. Rosal, wherein the Court allowed probate the fact that, in this case, it is discernible from the entire will that it


is really and actually composed of only two pages duly signed by can be supplied by an examination of the will itself: whether all the
the testatrix and her instrumental witnesses. As earlier stated, the pages are consecutively numbered; whether the signatures
first page which contains the entirety of the testamentary appear in each and every page; whether the subscribing
dispositions is signed by the testatrix at the end or at the bottom witnesses are three or the will was notarized. All these are facts
while the instrumental witnesses signed at the left margin. The that the will itself can reveal, and defects or even omissions
other page which is marked as "Pagina dos" comprises the concerning them in the attestation clause can be safely
attestation clause and the acknowledgment. The acknowledgment disregarded. But the total number of pages, and whether all
itself states that "this Last Will and Testament consists of two persons required to sign did so in the presence of each other
pages including this page" (pages 200-201, supra) (Underscoring must substantially appear in the attestation clause, being the
supplied).However, in the appeal at bench, the number of pages only check against perjury in the probate proceedings.[29]
used in the will is not stated in any part of the Will. The will does (Emphasis supplied.)The Court of Appeals did cite these
not even contain any notarial acknowledgment wherein the comments by Justice J.B.L. Reyes in its assailed decision,
[21]
number of pages of the will should be stated. Both Uy Coque and considering that the failure to state the number of pages of the will
Andrada were decided prior to the enactment of the Civil Code in in the attestation clause is one of the defects which cannot be
1950, at a time when the statutory provision governing the formal simply disregarded. In Caneda itself, the Court refused to allow the
requirement of wills was Section 618 of the Code of Civil probate of a will whose attestation clause failed to state that the
[22]
Procedure. Reliance on these cases remains apropos, witnesses subscribed their respective signatures to the will in the
considering that the requirement that the attestation state the presence of the testator and of each other,[30] the other omission
[23]
number of pages of the will is extant from Section 618. However, cited by Justice J.B.L. Reyes which to his estimation cannot be
the enactment of the Civil Code in 1950 did put in force a rule of lightly disregarded.
interpretation of the requirements of wills, at least insofar as the
attestation clause is concerned, that may vary from the philosophy Caneda suggested: "[I]t may thus be stated that the rule, as it now
that governed these two cases. Article 809 of the Civil Code stands, is that omission which can be supplied by an examination
states: "In the absence of bad faith, forgery, or fraud, or undue and of the will itself, without the need of resorting to extrinsic evidence,
improper pressure and influence, defects and imperfections in the will not be fatal and, correspondingly, would not obstruct the
form of attestation or in the language used therein shall not render allowance to probate of the will being assailed. However, those
the will invalid if it is proved that the will was in fact executed and omissions which cannot be supplied except by evidence aliunde
attested in substantial compliance with all the requirements of would result in the invalidation of the attestation clause and
article 805." ultimately, of the will itself."[31] Thus, a failure by the attestation
clause to state that the testator signed every page can be liberally
In the same vein, petitioner cites the report of the Civil Code construed, since that fact can be checked by a visual examination;
Commission, which stated that "the underlying and fundamental while a failure by the attestation clause to state that the witnesses
objective permeating the provisions on the [law] on [wills] in this signed in one another's presence should be considered a fatal
project consists in the [liberalization] of the manner of their flaw since the attestation is the only textual guarantee of
execution with the end in view of giving the testator more compliance.[32]

[freedom] in [expressing] his last wishes. This objective is in accord
with the [modern tendency] in respect to the formalities in the The failure of the attestation clause to state the number of pages
execution of wills."[24] However, petitioner conveniently omits the on which the will was written remains a fatal flaw, despite Article
qualification offered by the Code Commission in the very same 809. The purpose of the law in requiring the clause to state the
paragraph he cites from their report, that such liberalization be number of pages on which the will is written is to safeguard
"but with sufficient safeguards and restrictions to prevent the against possible interpolation or omission of one or some of its
commission of fraud and the exercise of undue and improper pages and to prevent any increase or decrease in the pages.[33]
[25]
pressure and influence upon the testator." The failure to state the number of pages equates with the absence

of an averment on the part of the instrumental witnesses as to how
[26]
Caneda v. Court of Appeals features an extensive discussion many pages consisted the will, the execution of which they had
made by Justice Regalado, speaking for the Court on the ostensibly just witnessed and subscribed to. Following Caneda,
conflicting views on the manner of interpretation of the legal there is substantial compliance with this requirement if the will
formalities required in the execution of the attestation clause in states elsewhere in it how many pages it is comprised of, as was
[27]
wills. Uy Coque and Andrada are cited therein, along with the situation in Singson and Taboada. However, in this case, there
several other cases, as examples of the application of the rule of could have been no substantial compliance with the requirements
[28]
strict construction. However, the Code Commission opted to under Article 805 since there is no statement in the attestation
recommend a more liberal construction through the "substantial clause or anywhere in the will itself as to the number of pages
compliance rule" under Article 809. A cautionary note was struck which comprise the will.
though by Justice J.B.L. Reyes as to how Article 809 should be
applied: At the same time, Article 809 should not deviate from the need to
x x x The rule must be limited to disregarding those defects that comply with the formal requirements as enumerated under Article


805. Whatever the inclinations of the members of the Code instrumental witnesses sign each page of the will, from the
Commission in incorporating Article 805, the fact remains that they requisite that the will be "attested and subscribed by [the
saw fit to prescribe substantially the same formal requisites as instrumental witnesses]." The respective intents behind these two
enumerated in Section 618 of the Code of Civil Procedure, classes of signature are distinct from each other. The signatures
convinced that these remained effective safeguards against the on the left-hand corner of every page signify, among others, that
forgery or intercalation of notarial wills.[34] Compliance with these the witnesses are aware that the page they are signing forms part
requirements, however picayune in impression, affords the public of the will. On the other hand, the signatures to the attestation
a high degree of comfort that the testator himself or herself had clause establish that the witnesses are referring to the statements
decided to convey property post mortem in the manner contained in the attestation clause itself. Indeed, the attestation
established in the will.[35] The transcendent legislative intent, clause is separate and apart from the disposition of the will. An
even as expressed in the cited comments of the Code unsigned attestation clause results in an unattested will. Even if
Commission, is for the fruition of the testator's incontestable the instrumental witnesses signed the left-hand margin of the
desires, and not for the indulgent admission of wills to probate. page containing the unsigned attestation clause, such signatures
cannot demonstrate these witnesses' undertakings in the clause,
The Court could thus end here and affirm the Court of Appeals. since the signatures that do appear on the page were directed
However, an examination of the will itself reveals a couple of even towards a wholly different avowal.
more critical defects that should necessarily lead to its rejection.
The Court may be more charitably disposed had the witnesses in
For one, the attestation clause was not signed by the this case signed the attestation clause itself, but not the left-hand
instrumental witnesses. While the signatures of the instrumental margin of the page containing such clause. Without diminishing
witnesses appear on the left-hand margin of the will, they do not the value of the instrumental witnesses' signatures on each and
appear at the bottom of the attestation clause which after all every page, the fact must be noted that it is the attestation clause
consists of their averments before the notary public. which contains the utterances reduced into writing of the
testamentary witnesses themselves. It is the witnesses, and not
[36]
Cagro v. Cagro is material on this point. As in this case, "the the testator, who are required under Article 805 to state the
signatures of the three witnesses to the will do not appear at the number of pages used upon which the will is written; the fact that
bottom of the attestation clause, although the page containing the the testator had signed the will and every page thereof; and that
[37]
same is signed by the witnesses on the left-hand margin." While they witnessed and signed the will and all the pages thereof in the
[38]
three (3) Justices considered the signature requirement had presence of the testator and of one another. The only proof in the
been substantially complied with, a majority of six (6), speaking will that the witnesses have stated these elemental facts would be
through Chief Justice Paras, ruled that the attestation clause had their signatures on the attestation clause.
not been duly signed, rendering the will fatally defective.
There is no question that the signatures of the three witnesses to Thus, the subject will cannot be considered to have been validly
the will do not appear at the bottom of the attestation clause, attested to by the instrumental witnesses, as they failed to sign the
although the page containing the same is signed by the witnesses attestation clause.
on the left-hand margin.
Yet, there is another fatal defect to the will on which the denial of
We are of the opinion that the position taken by the appellant is this petition should also hinge. The requirement under Article 806
correct. The attestation clause is "a memorandum of the facts that "every will must be acknowledged before a notary public by
attending the execution of the will" required by law to be made by the testator and the witnesses" has also not been complied with.
the attesting witnesses, and it must necessarily bear their The importance of this requirement is highlighted by the fact that it
signatures. An unsigned attestation clause cannot be considered had been segregated from the other requirements under Article
as an act of the witnesses, since the omission of their signatures at 805 and entrusted into a separate provision, Article 806. The
the bottom thereof negatives their participation. non-observance of Article 806 in this case is equally as critical as
the other cited flaws in compliance with Article 805, and should be
The petitioner and appellee contends that signatures of the three treated as of equivalent import.
witnesses on the left-hand margin conform substantially to the law
and may be deemed as their signatures to the attestation clause. In lieu of an acknowledgment, the notary public, Petronio Y.
This is untenable, because said signatures are in compliance with Bautista, wrote "Nilagdaan ko at ninotario ko ngayong 10 ng
the legal mandate that the will be signed on the left-hand margin Hunyo 10 (sic), 1981 dito sa Lungsod ng Maynila."[40] By no manner
of all its pages. If an attestation clause not signed by the three of contemplation can those words be construed as an
witnesses at the bottom thereof, be admitted as sufficient, it would acknowledgment. An acknowledgment is the act of one who has
be easy to add such clause to a will on a subsequent occasion and executed a deed in going before some competent officer or court
in the absence of the testator and any or all of the and declaring it to be his act or deed.[41] It involves an extra step
[39]
witnesses. The Court today reiterates the continued efficacy of undertaken whereby the signor actually declares to the notary that
Cagro. Article 805 particularly segregates the requirement that the the executor of a document has attested to the notary that the


same is his/her own free act and deed. these omissions, by themselves, may not be sufficient to deny
probate to a will. Yet even as these omissions are not decisive to
It might be possible to construe the averment as a jurat, even the adjudication of this case, they need not be dwelt on, though
though it does not hew to the usual language thereof. A jurat is indicative as they may be of a general lack of due regard for the
that part of an affidavit where the notary certifies that before requirements under Article 805 by whoever executed the will.
him/her, the document was subscribed and sworn to by the
[42]
executor. Ordinarily, the language of the jurat should avow that All told, the string of mortal defects which the will in question
the document was subscribed and sworn before the notary public, suffers from makes the probate denial inexorable.
while in this case, the notary public averred that he himself "signed
and notarized" the document. Possibly though, the word WHEREFORE, the petition is DENIED. Costs against petitioner.
"ninotario" or "notarized" encompasses the signing of and
swearing in of the executors of the document, which in this case SO ORDERED.
would involve the decedent and the instrumental witnesses.
Quisumbing, (Chairperson), Carpio, and Carpio-Morales, JJ.,
Yet even if we consider what was affixed by the notary public as a concur.
jurat, the will would nonetheless remain invalid, as the express
requirement of Article 806 is that the will be "acknowledged", and
not merely subscribed and sworn to. The will does not present any
textual proof, much less one under oath, that the decedent and the 18 Barut v. Cabacungan 21 Phil 461 (1912)
instrumental witnesses executed or signed the will as their own
21 Phil. 461
free act or deed. The acknowledgment made in a will provides for

another all-important legal safeguard against spurious wills or
those made beyond the free consent of the testator. An [ G.R. No. 6285, February 15, 1912 ]
[43]
acknowledgement is not an empty meaningless act. The
acknowledgment coerces the testator and the instrumental PEDRO BARUT, PETITIONER AND APPELLANT, VS.
witnesses to declare before an officer of the law that they had FAUSTINO CABACUNGAN ET AL., OPPONENTS AND
APPELLEES.
executed and subscribed to the will as their own free act or deed.

Such declaration is under oath and under pain of perjury, thus D E C I S I O N
allowing for the criminal prosecution of persons who participate in
the execution of spurious wills, or those executed without the free
consent of the testator. It also provides a further degree of MORELAND, J.:
assurance that the testator is of certain mindset in making the
testamentary dispositions to those persons he/she had designated
in the will. This case is closely connected with the case of Faustino
Cabacungan vs. Pedro Barut and another, No. 6284,[1] just decided
It may not have been said before, but we can assert the rule, by this court, wherein there was an application for the probate of
self-evident as it is under Article 806. A notarial will that is not an alleged last will and testament of the same person the probate
acknowledged before a notary public by the testator and the of whose will is involved in this suit.
witnesses is fatally defective, even if it is subscribed and sworn This appeal arises out of an application on the part of Pedro Barut
to before a notary public. to probate the last will and testament of Maria Salomon, deceased.
It is alleged in the petition for probate that Maria Salomon died on
There are two other requirements under Article 805 which were the 7th day of November, 1908, in the pueblo of Sinait, Ilocos Sur,
not fully satisfied by the will in question. We need not discuss them leaving a last will and testament bearing date March 2, 1907.
at length, as they are no longer material to the Severo Agayan, Timotea Inoselda, Catalino Ragasa, and A. M.
Jimenez are alleged to have been witnesses to the execution
disposition of this case. The provision requires that the testator thereof. By the terms of said will Pedro Barut received the larger
and the instrumental witnesses sign each and every page of the part of decedent's property.
will on the left margin, except the last; and that all the pages shall The original will appears on page 3 of the record and is in the
be numbered correlatively in letters placed on the upper part of Ilocano dialect. Its translation into Spanish appears at page 11.
each page. In this case, the decedent, unlike the witnesses, failed After disposing of her property the testatrix revoked all former wills
to sign both pages of the will on the left margin, her only signature by her made. She also stated in said will that being unable to read
appearing at the so-called "logical end"[44] of the will on its first or write, the same had been read to her by Ciriaco Concepcion
page. Also, the will itself is not numbered correlatively in letters on and Timotea Inoselda and that she had instructed Severo Agayan
each page, but instead numbered with Arabic numerals. There is a to sign her name to it as testatrix.
line of thought that has disabused the notion that these two The probate of the will was contested and opposed by a number
requirements be construed as mandatory.[45] Taken in isolation, of the relatives of the deceased on various grounds, among them


that a later will had been executed by the deceased. The will wise as a practical matter that the one who signs the testator's
referred to as being a later will is the one involved in case No. name signs also his own; but that is not essential to the validity of
6284 already referred to. Proceedings for the probate of this later the will. Whether one person or another signed the name of the
will were pending at the time. The evidence of the proponents and testatrix in this case is absolutely unimportant so far as the validity
of the opponents was taken by the court in both cases for the of her will is concerned. The plain wording of the statute shows
purpose of considering them together. that the requirement laid down by the trial court, if it did lay it
In the case before us the learned probate court found that the will down, is absolutely unnecessary under the law; and the reasons
was not entitled to probate upon the sole ground that the underlying the provisions of the statute relating to the execution of
handwriting of the person who it is alleged signed the name of the wills do not in any sense require such a provision. From the
testatrix to the will for and on her behalf looked more like the standpoint of language it is an impossibility to draw from the words
handwriting of one of the other witnesses to the will than that of of the law the inference that the person who signs the name of the
the person whose handwriting it was alleged to be. We do not testator must sign his own name also. The law requires only three
believe that the mere dissimilarity in writing thus mentioned by the witnesses to a will, not four.
court is sufficient to overcome the uncontradicted testimony of all Nor is such requirement found in any other branch of the law. The
the witnesses to the will that the signature of the testatrix was name of a person who is unable to write may be signed by another
written by Severo Agayan at her request and in her presence and by express direction to any instrument known to the law. There is
in the presence of all of the witnesses to the will. It is immaterial no necessity whatever, so far as the validity of the instrument is
who writes the name of the testatrix provided it is written at her concerned, for the person who writes the name of the principal in
request and in her presence and in the presence of all the the document to sign his own name also. As a matter of policy it
witnesses to the execution of the will. may be wise that he do so inasmuch as it would give such
The court seems, by inference at least, to have had in mind that intimation as would enable a person proving the document to
under the law relating to the execution of a will it is necessary that demonstrate more readily the execution by the principal. But as a
the person who signs the name of the testatrix must afterwards matter of essential validity of the document, it is unnecessary. The
sign his own name; and that, in view of the fact that, in the case at main thing to be established in the execution of the will is the
bar, the name signed below that of the testatrix as the person who signature of the testator. If that signature is proved, whether it be
signed her name, being, from its appearance, not the same written by himself or by another at his request, it is none the less
handwriting as that constituting the name of the testatrix, the will is valid, and the fact of such signature can be proved as perfectly
accordingly invalid, such fact indicating that the person who and as completely when the person signing for the principal omits
signed the name of the testatrix failed to sign his own. We do not to sign his own name as it can when he actually signs. To hold a
believe that this contention can be sustained. Section 618 of the will invalid for the lack of the signature of the person signing the
Code of Civil Procedure reads as follows: name of the principal is, in the particular case, a complete
"No will, except as provided in the preceding section, shall be valid abrogation of the law of wills, as it rejects and destroys a will which
to pass any estate, real or personal, nor charge or affect the same, the statute expressly declares is valid.
unless it be in writing and signed by the testator, or by the There have been cited three cases which it is alleged are in
testator's name written by some other person in his presence, and opposition to the doctrine which we have herein laid down. They
by his express direction, and attested and subscribed by three or are Ex parte Santiago (4 Phil. Rep., 692), Ex parte Arcenas (4 Phil.
more credible witnesses in the presence of the testator and of Rep., 700), and Guison vs. Concepcion (5 Phil. Rep., 551). Not one
each other. * * *" of these cases is in point. The headnote in the case last above
This is the important part of the section under the terms of which stated gives an indication of what all of the cases are and the
the court holds that the person who signs the name of the testator question involved in each one of them. It says:
for him must also sign his own name. The remainder of the section "The testatrix was not able to sign her name to the will, and she
reads: requested another person to sign it for her. Instead of writing her
"The attestation shall state the fact that the testator signed the will, name he wrote his own upon the will. Held, That the will was not
or caused it to be signed by some other person, at his express duly executed."
direction, in the presence of three witnesses, and that they All of the above cases are precisely of this character. Every one of
attested and subscribed it in his presence and in the presence of them was a case in which the person who signed the will for the
each other. But the absence of such form of attestation shall not testator wrote his own name to the will instead of 'writing that of
render the will invalid if it is proven that the will was in fact signed the testator, so that the testator's name nowhere appeared
and attested as in this section provided." attached to the will as the one who executed it. The case of Ex
From these provisions it is entirely clear that, with respect to the parte Arcenas contains the following paragraph:
validity of the will, it is unimportant whether the person who writes "Where a testator does not know how, or is unable for any reason,
the name of the testatrix signs his own or not. The important thing to sign the will himself, it shall be signed in the following manner:
is that it clearly appears that the name of the testatrix was signed 'John Doe, by the testator, Richard Roe;' or in this form: 'By the
at her express direction in the presence of three witnesses and testator. John Doe, Richard Roe.' All this must be written by the
that they attested and subscribed it in her presence and in the witness signing at the request of the testator."
presence of each other. That is all the statute requires. It may be The only question for decision in that case, as we have before


stated, was presented by the fact that the person who was the matter of the probate of a will, states:
authorized to sign the name of the testator to the will actually "1. Wills, requisites of; Civil Code, article repealed.—Article 695 of
failed to sign such name but instead signed his own thereto. The the Civil Code was repealed by section 618 of the Code of Civil
decision in that case related only to that question. Procedure; consequently where a testator is unable to sign his
Aside from the presentation of an alleged subsequent will the name, the person signing at his request must write at the bottom
contestants in this case have set forth no reason whatever why the of the will the full name of the testator in the latter's presence, and
will involved in the present litigation should not be probated. The by his express direction, and then sign his own name in full."
due and legal execution of the will by the testatrix is clearly In the syllabus of decision No. 2586, Tomas Guison vs. Maria
established by the proofs in this case. Upon the facts, therefore, Concepcion,[2] the following statements appear:
the will must be probated. As to the defense of a subsequent will, "Wills; inability to sign; signature by another.—The testatrix was not
that is resolved in case No. 6284 of which we have already able to sign her name to the will, and she requested another
spoken. We there held that said later will was not the will of the person to sign it for her. Held, That the will was not duly executed.
deceased. (Following Ex parte Arcenas et ah, No. 1708, August 24, 1905; Ex
The judgment of the probate court must be and is hereby reversed parte Santiago, No. 2002, August 18, 1905.)"
and that court is directed to enter an order in the usual form The following syllabus precedes decision No. 3907:[3]
probating the will involved in this litigation and to proceed with "Execution of wills.—Where it appears in a will that the testator has
such probate in accordance with law. stated that by reason of his inability to sign his name he requested
Arellano, C. J., Mapa and Carson, JJ., concur. one of the three witnesses present to do so, and that as a matter
of fact, the said witness wrote the name and surname of the
CONCURRING testator who, stating that the instrument executed by him
TORRES, J.: contained his last will, put the sign of the cross between his said
The undersigned agrees and admits that section 618 of the. Code name and surname, all of which details are set forth in a note
of Civil Procedure does not expressly require that, when the which the witnesses forthwith subscribed in the presence of the
testator or testatrix is unable or does not know how to sign, the testator and of each other, said will may be probated.
person who, in the presence and under the express direction of "When the essential requisites of section 618 of the Code of Civil
either of them, writes in the name of the said testator or testatrix Procedure for the execution and validity of a will have been
must also sign his own name thereto, it being sufficient for the complied with, the fact that the witness who was requested to sign
validity of the will that the said person so requested to sign for the the name of the testator, omitted to state the words 'by request
testator or testatrix write the name of either in his own of................the testator,' when writing with his own hand the name
handwriting. and surname of the said testator, and the fact that said witness
Since this court began to decide cases with regard to the form, subscribed his name together with the other witnesses and not
conditions and validity of wills executed in accordance with the below the name of the testator, does not constitute a defect nor
provisions of the Code of Civil Procedure, never has the specific invalidate the said will."
point just above mentioned been brought into question. Now for The following statement appears in the syllabus of case No. 4132,
the first time it is affirmed in the majority opinion, written by the in the matter of the will of Maria Siason:[1]
learned and distinguished Hon. Justice Moreland, that, not being "The recital of the name of the testator as written below the will at
required by the said code, the signature of the name of the person his request serves as a signature by a third person."
who, at the request of the testator or testatrix, writes the name of Moreover, among the grounds given as a basis for this same
either of the latter to the will executed, is not necessary. decision, the following appears:
Various and considerable in number have been the decisions "In sustaining this form of signature, this court does not intend to
rendered by this court in which, as will be seen further on, upon qualify the decisions in Ex parte Santiago (4 Phil. Rep., 692), Ex
applying the said section 618 of the Code of Civil Procedure and parte Arcenas, above quoted, or in Abaya vs. Zalamero. In the
requiring its observance in cases where the testator or testatrix is Arcenas case the court pointed out the correct formula for a
unable or does not know how to sign his or her name, expressly signature which ought to be followed, but did not mean to exclude
prescribe the practical method of complying with the provisions of any other form substantially equivalent."
the law on the subject. Among these decisions several were In the syllabus of decision No. 4454,[2] Ex parte Ondevilla et al., the
written by various justices of this court, some of whom are no following appears:
longer on this bench, as they have ceased to hold such position. "The testatrix was unable to sign her will with her own hand and
Paragraph 2 of the syllabus of case No. 2002, Ex parte Delfin requested another person to sign for her in her presence. This the
Santiago,[1] concerning the probate of a will, reads as follows: latter did, first writing the name of the testatrix and signing his own
"Wills, authentication of. Where a will is not signed by a testator name below: Held, Thet the signature of the testatrix so affixed is
but by some other person in his presence and by his direction, sufficient and a will thus executed is admissible to probate. (Ex
such other person should affix the name of the testator thereto, parte Arcenas, 4 Phil. Rep., 700.)"
and it is not sufficient that he sign his own name for and instead of The syllabus of decision No. 5149[3] sets forth that: "The legality of
the name of the testator." a will is not affected by the insertion, supposed to have been
[1]
Paragraph 1 of the syllabus of case No. 1708, Ex parte Arcenas, in made subsequently, of another name before that of the testator



when such name may be treated as nonexistent without affecting he concedes that, in the examination and qualification of a will for
its validity." the purpose of its probate, one has but to abide by the provisions
. of the said section 618 of the Code of Civil Procedure, the sole law
Among the conclusions contained in this last decision the applicable in the matter, yet, perhaps imbued with and strongly
following is found: impelled by a traditional conception of the laws which he has
"Although the said words 'For Simplicia de los Santos be known since his youth, relative to the form of execution of
considered as inserted subsequently, which we neither affirm nor testaments, he believed it to be a very natural and common sense
deny, because a specific determination either way is unnecessary, requisite that the signature, with his own name and surname, of
in our opinion the signature for the testatrix placed outside of the the person requested to write in the will the name and surname of
body of the will contains the name of the testatrix as if she signed the testator or testatrix should form a part of the provisions of the
the will, and also the signature of the witness who, at her request, aforementioned section 618. He undoubtedly thought, perhaps
wrote the name of the testatrix and signed for her, affirming the mistakenly, that such a requisite of the signature of the person
truth of this fact, attested by the other witnesses then present. And before referred to—a requisite deemed to be convenient and
this fully complies with the provisions of section 618 of the Act." prudent in the majority opinion—formed a part of the provisions of
It is true that in none of the decisions above quoted was the rule the law, since the latter contains nothing that prohibits it. The
established that the person who, at the request of the testator or aforementioned different decisions were drawn up in the form in
testatrix, signed the latter's or the former's name and surname to which they appear, and signed without dissent by all the justices of
the will must affix his own signature; but it is no less true that, in the court on various dates. None of them hesitated to sign the
prescribing the method in which the provisions of the said section decisions, notwithstanding that it was expressly held therein that
618 were to be complied with, it was stated that, in order that a will the person above mentioned should, besides writing in the will the
so executed might be admitted to probate, it was an indispensable name and surname of the testator or testatrix, also sign the said
requisite that the person requested to sign in place of the testator instrument with his own name and surname.
or testatrix, should write the latter's or the former's name and Without being understood to criticise the provision contained in
surname at the foot of the will in the presence and under the the said section 618 of the Code of Civil Procedure, it will not be
direction of either, as the case might be, and should afterwards superfluous to mention that the system adopted in this section is
sign the instrument with his own name and surname. the same as was in vogue under the former laws that governed in
The statement that the person who writes the name and surname these Islands, with respect to witnesses who were not able or did
of the testator or testatrix at the foot of the will should likewise not know how to sign their testimony given in criminal or civil
affix his own signature thereto, name and surname, though it be cases, in which event any person at all might write the name and
considered to be neither a rule nor a requisite necessary to follow surname of the witness who was unable or did not know how to
for the admission of the will to probate, yet it is unquestionable sign, at the foot of his deposition, where a cross was then drawn,
that, in inserting this last above-mentioned detail in the aforesaid and, this done, it was considered that the instrument had been
decisions, it was deemed to be a complement and integral part of signed by the witness, though it is true that all these formalities
the required conditions for the fulfillment of the provisions of the were performed before the judge and the clerk or secretary of the
law. court, which thereupon certified that such procedure was had in
It is indisputable that the latter does not require the said accordance with the law.
subscription and signature of the person requested to affix to the The difference is that in the will, pursuant to section 618 of the
will the name of the testator or testatrix who is not able to sign; but Code of Civil Procedure, the person who writes the name and
by stating in the decisions hereinabove quoted that the name and surname of the testator or testatrix does so by the order and
surname of the said person should be affixed by him, no act express direction of the one or of the other, and this fact must be
prohibited by law was recommended or suggested, nor may such recorded in the will; but in the matter of the signature of a
a detail be understood to be contrary or opposed to the plain deposition, the witness, who could not or did not know how to
provisions thereof. sign, did not need to designate anyone to write the deponent's
In the preceding decision itself, it is recognized to be convenient name and surname, and in practice the witness merely made a
and even prudent to require that the person requested to write the cross beside his name and surname, written by whomever it be.
name of the testator or testatrix in the will also sign the instrument With regard to the execution of wills in accordance with the
with his own name and surname. This statement induces us to provisions of previous statutes, among them those of the Civil
believe that, in behalf of the inhabitants of this country and for the Code, the person or witness requested by the testator or testatrix
sake of an upright administration of justice, it should be who was not able or did not know how to sign, authenticated the
maintained that such a signature must appear in the will, since no will by signing it with his own name and surname, preceded by the
harm could accrue to anyone thereby and, on the contrary, it words "at the request of the testator or testatrix." Paragraph 2 of
would serve as a guarantee of the certainty of the act performed article 6§5 of the Civil Code contains the following provisions
and also might eliminate some possible cause of controversy bearing on the subject:
between the interested parties. "Should the testator declare that he does not know how, or is not
The undersigned feels it his duty to admit that, though convinced able to sign, one of the attesting witnesses or another person shall
of the complete repeal of article 695 of the Civil Code and, while do so for him at his request, the notary certifying thereto. This shall


also be done if any one of the witnesses can not sign."
So that, prior to the enforcement in this country in 1901 of the
Code of Civil Procedure, the procedure prescribed by the old laws 19 Balonan v. Abellana G.R. No. L-15153 Aug 31,
1960
with respect to the signing of a will by a testator or testatrix who
109 Phil. 359
did not know how or who could not sign, consisted in that the
person appointed and requested by the testator or testatrix to sign
in his or her stead, such fact being recorded in the will, merely
[ G.R. No. L-15153, August 31, 1960 ]
affixed at the bottom of the will and after the words "at the request
of the testator," his own name, surname and paraph.
It is not at all strange that the attorneys of this country, imbued IN THE MATTER OF THE SUMMARY SETTLEMENT OF
THE ESTATE OF THE DECEASED ANACLETA ABELLANA.
with and inspired by these legal provisions, which, it may be said,
LUCIO BALONAN, PETITIONER AND APPELLEE, VS.
are traditional to them in the ideas they have formed of the EUSEBIA ABELLANA, ET AL., OPPOSITORS AND
existing laws in the matter of procedure in compliance therewith APPELLANTS.
as regards the execution and signing of a will, should have
believed that, after the name and surname of the testator or D E C I S I O N
testatrix had been written at the foot of the will, the person who
signed the instrument in the manner mentioned should likewise LABRADOR, J.:
sign the same with his own name and surname.
If in various decisions, it has been indicated that the person who,
under the express direction of the testator or testatrix, wrote the Appeal from a decision of the Court of First Instance of
latter's or the former's name and surname, should also sign the will Zamboanga City admitting to probate the will of one Anacleta
with his own name and surname, and since this suggestion is not Abellana. The case was originally appealed to the Court of
opposed or contrary to the law, the undersigned is of opinion that Appeals where the following assignment of error is made:
it ought not to be modified or amended, but that, on the contrary, it "The appellants respectfully submit that the Trial Court erred in
should be maintained as a requisite established by the holding that the supposed testament, Exh. 'A', was signed in
jurisprudence of this court, inasmuch as such a requisite is accordance with law; and in admitting the will to probate."
not.contrary to law, to public order, or to good custom, is in In view of the fact that the appeal involves a question of law the
consonance with a tradition of this country, does not prejudice the said court has certified the case to us.
testator nor those interested in an inheritance, and, on the The facts as found by the trial court are as follows:
contrary, constitutes another guarantee of the truth and "It appears on record that the last Will and Testament (Exhibit 'A'),
authenticity of the letters with which the name and surname of the which is sought to be probated, is written in the Spanish language
testator or testatrix are written, in accordance with his or her and consists of two (2) typewritten pages (pages 4 and 5 of the
desire as expressed in the will. record) double space. The first page is signed by Juan Bello and
Even though the requisites referred to were not recognized in under his name appears typewritten 'Por la testadora Anacleta
jurisprudence and were unsupported by any legal doctrine Abellana, residence Certificate A-1167629, Enero 20, 1951, Ciudad
whatever, yet, since it is in harmony with the juridical usages and de Zamboanga', and on the second page appears the signature of
customs observed in this country, it ought, in the humble opinion the three (3) instrumental witnesses Bias Sebastian, Faustino
of the writer, to be maintained for the benefit of the inhabitants of Macaso and Rafael Ignacio, at the bottom of which appears the
the Islands and for the sake of a good administration of justice, signature of T. de los Santos and below his signature is his official
because it is not a question of a dangerous innovation or of one designation as the notary public who notarized the said testament.
prejudicial to the public good, but a matter of the observance of a On the first page on the left margin of the said instrument also
convenient, if not a necessary detail, introduced by the appear the signatures of the instrumental witnesses. On the
jurisprudence of the courts and which in the present case has second page, which is the last page of the said last Will and
filled a vacancy left by the positive written law. Testament, also appears the signature of the three (3) instrumental
The foregoing considerations, which perhaps have not the support witnesses and on that second page on the left margin appears the
of better premises, but, in the opinion of the undersigned, are signature of Juan Bello under whose name appears handwritten
conducive to the realization of the purposes of justice, have the following phrase, 'Por la Testadora Anacleta Abellana'. The will
impelled him to believe that the proposition should be enforced is duly acknowledged before Notary Public, Attorney Timoteo de
that the witness requested or invited by the testator or testatrix to los Santos." (Italics supplied)
write his or her name to the will, should also subscribe the The appeal squarely presents the following issue: Does the
instrument by signing thereto his own name and surname; and signature of Dr. Juan A. Abello above the typewritten statement
therefore, with the proper finding in this sense, and a reversal of "Por la Testadora Anacleta Abellana * * *, Ciudad de Zamboanga,"
the judgment appealed from, that the court below should be comply with the requirements of the law prescribing the manner in
ordered to proceed with the probate of the will of the decedent, which a will shall be executed?
Maria Salomon, in accordance with the law. The present law, Article 805 of the Civil Code, in part provides as



follows: In the case at bar the name of the testatrix, Anacleta Abellana,
"Every will, other than a holographic will, must be subscribed at the does not appear written under the will by said Abellana herself, or
end thereof by the testator himself or by the testator's name by Dr. Juan Abello. There is, therefore, a failure to comply with the
written by some other person in his presence, and by his express express requirement in the law that the testator must himself sign
direction, and attested and subscribed by three or more credible the will, or that his name be affixed thereto by some other person
witnesses in the presence of the testator and of one another." in his presence and by his express direction.
(Italics supplied.) It appearing that the above provision of the law has not been
The clause "must be subscribed at the end thereof by the testator complied with, we are constrained to declare that the said will of
himself or by the testator's name written by some other person in the deceased Anacleta Abellana may not be admitted to probate.
his presence and by his express direction," is practically the same Wherefore, the decision appealed from is hereby set aside and the
as the provisions of Section 618 of the Code of Civil Procedure petition for the probate of the will denied. With costs against
(Act No. 190) which reads as follows: petitioner.
"No will, except as provided in the preceding section shall be valid Paras, C. J., Bengzon, Padilla, Concepcion, Reyes, J. B. L., Barrera,
to pass any estate, real or personal, nor charge or affect the same, Gutierrez David, and Dizon, JJ., concur.
unless it be in writing and signed by the testator, or by the
testator's name written by some other person in his presence, and
by his express direction, and attested and subscribed by three or
more credible witnesses in the presence of the testator and of 20 Nera v. Rimando G.R. No. L-5971 Feb 27, 1911
each other. * * * " (Italics supplied)
18 Phil. 450
Note that the old law as well as the new require that the testator

himself sign the will, or if he cannot do so, the testator's name
must be written by some other person in his presence and by his [ G. R. No. 5971, February 27, 1911 ]
express direction. Applying this provision this Court said in the
case of Ex Parte Pedro Arcenas, et al., 4 Phil., 700: BEATRIZ NERA ET AL., PLAINTIFFS AND APPELLEES, VS.
"It will be noticed from the above-quoted section 618 of the Code NARCISA RIMANDO, DEFENDANT AND APPELLANT.

of Civil Procedure that where the testator does not know how, or is

unable, to sign, it will not be sufficient that one of the attesting
witnesses signs the will at the testator's request, the notary D E C I S I O N
certifying thereto as provided in article 695 of the Civil Code,

which, in this respect, was modified by section 618 above referred
CARSON, J.:
to, but it is necessary that the testator's name be written by the

person signing in his stead in the place where he would have
The only question raised by the evidence in this case as to the due
signed if he knew how or was able so to do, and this in the
execution of the instrument propounded as a will in the court
testator's presence and by his express direction; so that a will
below, is whether one of the subscribing witnesses was present in
signed in a manner different than that prescribed by law shall not
the small room where it was executed at the time when the
be valid and will not be allowed to be probated.
testator and the other subscribing witnesses attached their
"Where a testator does not know how, or is unable for any reason,
signatures; or whether at that time he was outside, some eight or
to sign the will himself, it shall be signed in the following manner:
ten feet away, in a large room connecting with the smaller room
'John Doe by the testator, Richard Roe; or in this form: 'By the
by a doorway, across which was hung a curtain which made it
testator, John Doe, Richard Roe.' All this must be written by the
impossible for one in the outside room to see the testator and
witness signing at the request of the testator.
the other subscribing witnesses in the act of attaching their
"Therefore, under the law now in force, the witness Naval A. Vidal
signatures to the instrument.
should have written at the bottom of the will the full name of the

testator and his own name in one of the forms given above. He did
A majority of the members of the court is of opinion that this
not do so, however, and this failure to comply with the law is a
subscribing witness was in the small room with the testator and
substantial defect which affects the validity of the will and
the other subscribing witnesses at the time when they attached
precludes its allowance, notwithstanding the fact that no one
their signatures to the instrument, and this finding, of course,
appeared to oppose it."
disposes of the appeal and necessitates the affirmance of the
The same ruling was laid down in the case of Cuison vs.
decree admitting the document to probate as the last will and
Concepcion, 5 Phil., 552. In the case of Barut vs. Cabacungan, 21
testament of the deceased.
Phil., 461, we held that the important thing is that it clearly appears

that the name of the testatrix was signed at her express direction;
The trial judge does not appear to have considered the
it is unimportant whether the person who writes the name of the
determination of this question of fact of vital importance in the
testatrix signs his own or not. Cases of the same import are as
determination of this case, as he was of opinion that under the
follows: (Ex Parte Juan Ondevilla, 13 Phil., 479, Caluya vs.
doctrine laid down in the case of Jaboneta vs. Gustilo (5 Phil.
Domingo, 27 Phil., 330; Garcia vs. Lacuesta, 90 Phil., 489).


Rep., 541) the alleged fact that one of the subscribing witnesses Arellano, C. J., Mapa, Moreland, and Trent, JJ,, concur.
was in the outer room when the testator and the other describing
witnesses signed the instrument in the inner room, had it been
proven, would not be sufficient in itself to invalidate the execution 21 Taboada v. Rosal G.R. No. L-36033 Nov. 5,
of the will. But we are unanimously of opinion that had this 1982
203 Phil. 572
subscribing witness been proven to have been in the outer room

at the time when the testator and the other subscribing witnesses
attached their signatures to the instrument in the inner room, it
would have been invalid as a will, the attaching of those
signatures under such circumstances not being done "in the FIRST DIVISION
presence" of the witness in the outer room. This because the line
[ G.R. No. L-36033, November 05, 1982 ]
of vision from this witness to the testator and the other
subscribing witnesses would necessarily have been impeded by
the curtain separating the inner room from the outer one "at the IN THE MATTER OF THE PETITION FOR THE PROBATE OF
THE WILL OF DOROTEA PEREZ, (DECEASED): APOLONIO
moment of inscription of each signature."
TABOADA, PETITIONER, VS. HON. AVELINO S. ROSAL, AS
JUDGE OF THE COURT OF FIRST INSTANCE OF
In the case just cited, on which the trial court relied, we held that: SOUTHERN LEYTE, (BRANCH III, MAASIN), RESPONDENT.
"The true test of presence of the testator and the witnesses in the
execution of a Will is not whether they actually saw each other D E C I S I O N
sign, but whether they might have seen each other sign, had they

chosen to do so, considering their mental and physical condition GUTIERREZ, JR., J.:
and position with relation to each other at the moment of
inscription of each signature."But it is especially to be noted that This is a petition for review of the orders issued by the Court of
the position of the parties with relation to each other at the First Instance of Southern Leyte, Branch III, in Special Proceedings
moment of the subscription of each signature, must be such that No. R-1713, entitled "In the Matter of the Petition for Probate of the
they may see each other sign if they choose to do so. This, of Will of Dorotea Perez, Deceased; Apolonio Taboada, Petitioner",
course, does not mean that the testator and the subscribing which denied the probate of the will, the motion for
witnesses may be held to have executed the instrument in the reconsideration and the motion for appointment of a special
presence of each other if it appears that they would not have administrator.
been able to see each other sign at that moment, without
changing their relative positions or existing conditions. The In the petition for probate filed with the respondent court, the
evidence in the case relied upon by the trial judge discloses that petitioner attached the alleged last will and testament of the late
"at the moment when the witness Javellana signed the document Dorotea Perez. Written in the Cebuano-Visayan dialect, the will
he was actually and physically present and in such position with consists of two pages. The first page contains the entire
relation to Jaboneta that he could see everything that took place testamentary dispositions and is signed at the end or bottom of
by merely casting his eyes in the proper direction and without the page by the testatrix alone and at the left hand margin by the
any physical obstruction to prevent his doing so." And the three (3) instrumental witnesses. The second page which contains
decision merely laid down the doctrine that the question whether the attestation clause and the acknowledgment is signed at the
the testator and the subscribing witnesses to an alleged will sign end of the attestation clause by the three (3) attesting witnesses
the instrument in the presence of each other does not depend and at the left hand margin by the testatrix.
upon proof of the fact that their eyes were actually cast upon the Since no opposition was filed after the petitioner's compliance with
paper at the moment of its subscription by each of them, but the requirement of publication, the trial court commissioned the
that at that moment existing conditions and their position with branch clerk of court to receive the petitioner's evidence.
relation to each other were such that by merely casting the eyes in Accordingly, the petitioner submitted his evidence and presented
the proper direction they could have seen each other sign. To Vicente Timkang, one of the subscribing witnesses to the will, who
extend the doctrine further would open the door to the testified on its genuineness and due execution.
possibility of all manner of fraud, substitution, and the like, and The trial court, thru then Presiding Judge Ramon C. Pamatian
would defeat .the purpose for which this particular condition is issued the questioned order denying the probate of the will of
prescribed in the code as one of the requisites in the execution Dorotea Perez for want of a formality in its execution. In the same
of a will. order, the petitioner was also required to submit the names of the
intestate heirs with their corresponding addresses so that they
The decree entered by the court below admitting the instrument could be properly notified and could intervene in the summary
propounded therein to probate as the last will and testament of settlement of the estate.
Pedro Rimando, deceased, is affirmed with costs of this instance Instead of complying with the order of the trial court, the petitioner
against the appellant. filed a manifestation and/or motion ex parte praying for a thirty-day



period within which to deliberate on any step to be taken as a signatures of the subscribing witnesses should be specifically
result of the disallowance of the will. He also asked that the located at the end of the will after the signature of the testatrix. He
ten-day period required by the court to submit the names of contends that it would be absurd that the legislature intended to
intestate heirs with their addresses be held in abeyance. place so heavy an import on the space or particular location where
The petitioner filed a motion for reconsideration of the order the signatures are to be found as long as this space or particular
denying the probate of the will. However, the motion together with location wherein the signatures are found is consistent with good
the previous manifestation and/or motion could not be acted upon faith and the honest frailties of human nature.
by the Honorable Ramon C. Pamatian due to his transfer to his We find the petition meritorious.
new station at Pasig, Rizal. The said motions or incidents were still Undoubtedly, under Article 805 of the Civil Code, the will must be
pending resolution when respondent Judge Avelino S. Rosal subscribed or signed at its end by the testator himself or by the
assumed the position of presiding judge of the respondent court. testator's name written by another person in his presence, and by
Meanwhile, the petitioner filed a motion for the appointment of his express direction, and attested and subscribed by three or
special administrator. more credible witnesses in the presence of the testator and of one
Subsequently, the new Judge denied the motion for another.
reconsideration as well as the manifestation and/or motion filed ex It must be noted that the law uses the terms attested and
parte. In the same order of denial, the motion for the appointment subscribed. Attestation consists in witnessing the testator's
of special administrator was likewise denied because of the execution of the will in order to see and take note mentally that
petitioner's failure to comply with the order requiring him to submit those things are done which the statute requires for the execution
the names of the intestate heirs and their addresses. of a will and that the signature of the testator exists as a fact. On
The petitioner decided to file the present petition. the other hand, subscription is the signing of the witnesses' names
For the validity of a formal notarial will, does Article 805 of the Civil upon the same paper for the purpose of identification of such
Code require that the testatrix and all the three instrumental and paper as the will which was executed by the testator. (Ragsdale v.
attesting witnesses sign at the end of the will and in the presence Hill, 269 SW 2d 911).
of the testatrix and of one another? Insofar as the requirement of subscription is concerned, it is our
Article 805 of the Civil Code provides: considered view that the will in this case was subscribed in a
"Every will, other than a holographic will, must be subscribed at the manner which fully satisfies the purpose of identification.
end thereof by the testator himself or by the testator's name The signatures of the instrumental witnesses on the left margin of
written by some other person in his presence, and by his express the first page of the will attested not only to the genuineness of
direction, and attested and subscribed by three or more credible the signature of the testatrix but also the due execution of the will
witnesses in the presence of the testator and of one another. as embodied in the attestation clause.
"The testator or the person requested by him to write his name While perfection in the drafting of a will may be desirable,
and the instrumental witnesses of the will, shall also sign, as unsubstantial departure from the usual forms should be ignored,
aforesaid, each and every page thereof, except the last, on the left especially where the authenticity of the will is not assailed.
margin, and all the pages shall be numbered correlatively in letters (Gonzales v. Gonzales, 90 Phil. 444, 449).
placed on the upper part of each page. The law is to be liberally construed, "the underlying and
"The attestation shall state the number of pages used upon which fundamental objective permeating the provisions on the law on
the will is written, and the fact that the testator signed the will and wills in this project consists in the liberalization of the manner of
every page thereof, or caused some other person to write his their execution with the end in view of giving the testator more
name, under his express direction, in the presence of the freedom in expressing his last wishes but with sufficient
instrumental witnesses, and that the latter witnessed and signed safeguards and restrictions to prevent the commission of fraud
the will and the pages thereof in the presence of the testator and and the exercise of undue and improper pressure and influence
of one another. upon the testator. This objective is in accord with the modern
"If the attestation clause is in a language not known to the tendency in respect to the formalities in the execution of a will" (
witnesses, it shall be interpreted to them." Report of the Code Commission, p. 103).
The respondent Judge interprets the above-quoted provision of Parenthetically, Judge Ramon C. Pamatian stated in his questioned
law to require that, for a notarial will to be valid, it is not enough order that were it not for the defect in the place of signatures of
that only the testatrix signs at the "end" but all the three the witnesses, he would have found the testimony sufficient to
subscribing witnesses must also sign at the same place or at the establish the validity of the will.
end, in the presence of the testatrix and of one another because The objects of attestation and of subscription were fully met and
the attesting witnesses to a will attest not merely the will itself but satisfied in the present case when the instrumental witnesses
also the signature of the testator. It is not sufficient compliance to signed at the left margin of the sole page which contains all the
sign the page, where the end of the will is found, at the left hand testamentary dispositions, especially so when the will was
margin of that page. properly identified by subscribing witness Vicente Timkang to be
On the other hand, the petitioner maintains that Article 805 of the the same will executed by the testatrix. There was no question of
Civil Code does not make it a condition precedent or a matter of fraud or substitution behind the questioned order.
absolute necessity for the extrinsic validity of the will that the We have examined the will in question and noticed that the


attestation clause failed to state the number of pages used in attestation clause.'"
writing the will. This would have been a fatal defect were it not for WHEREFORE , the present petition is hereby granted. The orders
the fact that, in this case, it is discernible from the entire will that it of the respondent court which denied the probate of the will, the
is really and actually composed of only two pages duly signed by motion for reconsideration of the denial of probate, and the motion
the testatrix and her instrumental witnesses. As earlier stated, the for appointment of a special administrator are set aside. The
first page which contains the entirety of the testamentary respondent court is ordered to allow the probate of the will and to
dispositions is signed by the testatrix at the end or at the bottom conduct further proceedings in accordance with this decision. No
while the instrumental witnesses signed at the left margin. The pronouncement on costs.
other page which is marked as "Pagina dos" comprises the SO ORDERED.
attestation clause and the acknowledgment. The acknowledgment Melencio-Herrera, (Acting Chairman), Plana, Vasquez, and
itself states that "This Last Will and Testatment consists of two Relova, JJ., concur.
pages including this page". Teehankee, (Chairman), on official leave.
In Singson v. Fiorentino, et al. (92 Phil. 161, 164), this Court made
the following observations with respect to the purpose of the
requirement that the attestation clause must state the number of 22 Margie Santos Mitra vs. Saban-Guevara
pages used: G.R. No. 213994 April 18, 2018

"The law referred to is article 618 of the Code of Civil Procedure,
as amended by Act No. 2645, which requires that the attestation
SECOND DIVISION
clause shall state the number of pages or sheets upon which the
will is written, which requirement has been held to be mandatory [ G.R. No. 213994, April 18, 2018 ]
as an effective safeguard against the possibility of interpolation or
omission of same of the pages of the will to the prejudice of the MARGIE SANTOS MITRA, PETITIONER, VS. PERPETUA L.
heirs to whom the property is intended to be bequeathed (In re will SABLAN-GUEVARRA, REMEGIO L. SABLAN, ET AL.,
of Andrada, 42 Phil., 180; Uy Coque vs. Navas Sioca, 43 Phil., 405; RESPONDENTS.

Gumban vs. Gorecho, 50 Phil., 30; Quinto vs. Morata, 54 Phil., 481; D E C I S I O N
Echevarria vs. Sarmiento, 66 Phil., 611). The ratio decidendi of
these cases seems to that the attestation clause must contain a
statement of the number of sheets or pages composing the will REYES, JR., J:
and that if this is missing or is omitted, it will have the effect of
invalidating the will if the deficiency cannot be supplied, not by This treats of a Petition for Review on Certiorari[1] of the Decision[2]
evidence aliunde, but by a consideration or examination of the will dated May 22, 2013 and Resolution[3] dated August 15, 2014 of the
itself. But here the situation is different. While the attestation Court of Appeals (CA) in CA-G.R. CV No. 93671, which reversed
clause does not state the number of sheets or pages upon which the Decision[4] dated February 23, 2009 of the Regional Trial Court
the will is written, however, the last part of the body of the will (RTC), Branch 128 of Caloocan City in SP. Proc. Case No. C-3450.
contains a statement that it is composed of eight pages, which
circumstance in our opinion takes this case out of the rigid rule of ANTECEDENT FACTS
construction and places it within the realm of similar cases where a
broad and more liberal view has been adopted to prevent the will On June 26, 2006, Margie Santos Mitra (petitioner) filed a petition
of the testator from being defeated by purely technical for the probate of the notarial will of Remedios Legaspi y Reyes
considerations." (Legaspi) with prayer for issuance of letters testamentary before
Icasiano v. Icasiano (11 SCRA 422, 429) has the following ruling the RTC. It was alleged that the petitioner is the de facto adopted
which applies a similar liberal approach: daughter of Legaspi; that Legaspi, single, died on December 22,
"x x x Impossibility of substitution of this page is assured not only 2004 in Caloocan City; that Legaspi left a notarial will, instituting
(sic) the fact that the testatrix and two other witnesses did sign the the petitioner, Orlando Castro, Perpetua Sablan Guevarra, and
defective page, but also by its bearing the coincident imprint of the Remigio Legaspi Sablan, as her heirs, legatees and devisees; that
seal of the notary public before whom the testament was ratified Legaspi left real and personal properties with the approximate
by testatrix and all three witnesses. The law should not be so total value of One Million Thirty-Two Thousand and Two Hundred
strictly and literally interpreted as to penalize the testatrix on Thirty Seven Pesos (P1,032,237.00); and that Legaspi named Mary
account of the inadvertence of a single witness over whose Ann Castro as the executor of the will.[5]

conduct she had no control, where the purpose of the law to
guarantee the identity of the testament and its component pages Perpetua L. Sablan-Guevarra and Remegio L. Sablan
is sufficiently attained, no intentional or deliberate deviation (respondents), who claim to be Legaspi's legal heirs, opposed the
existed, and the evidence on record attests to the full observance petition. They aver that the will was not executed in accordance
of the statutory requisites. Otherwise, as stated in Vda. de Gil vs. with the formalities required by law; that since the last page of the
Murciano, 49 Off. Gaz. 1459, at 1479 (decision on reconsideration) will, which contained the Acknowledgement, was not signed by
'witnesses may sabotage the will by muddling or bungling it or the Legaspi and her instrumental witnesses, the will should be


declared invalid; that the attestation clause failed to state the ISSUES
number of pages upon which the will was written; and that the will
was executed under undue and improper pressure, thus, Legaspi Whether the CA erred in finding that the instrumental witnesses to
could not have intended the document to be her last will and the will failed to sign on each and every page thereof on the left
[6]
testament. margin, except the last, as required under Article 805 of the Civil

Code
THE RULING OF THE RTC
Whether the CA erred in ruling that the failure to state the number
[7]
On February 23, 2009, the RTC rendered a Decision admitting of pages comprising the will on the attestation clause renders
Legaspi's will to probate. The dispositive portion reads: such will defective
WHEREFORE, premises considered, this Court having been
satisfied that the will was duly executed, and that the testator at THE RULING OF THE COURT
the time of its execution was of sound and disposing mind, and not
acting under duress, menace and undue influence, or fraud, the To begin with, the importance of complying with procedural rules
petition for the probate of the Huling Habilin at Pagpapatunay of can not be over emphasized these are tools designed to facilitate
the testator Remedios Legaspi is hereby granted. the adjudication of cases.[15] These are set in place to obviate
arbitrariness, caprice, or whimsicality in the administration of
The Huling Habilin at Pagpapatunay of the testator Remedios justice.[16] Nevertheless, if a stringent application of the rules would
Legaspi dated September 27, 2004 is hereby allowed. hinder rather than serve the demands of substantial justice, the
former must yield to the latter.[17] "Litigations should, as much as
In the meantime, the hearing on the issuance of [the] letters possible, be decided on the merits and not on technicalities."[18]

testamentary to the named executor Mary Ann Castro is hereby
set on April 23, 2009. In Republic vs. Court of Appeals,[19] the Court allowed the
perfection of the appeal of the Republic, despite the delay of six
[8]
SO ORDERED. The probate court explained that the last page of (6) days, since the Republic stands to lose hundreds of hectares of
the will is but a mere continuation of the Acknowledgement land already titled in its name. This was done in order to prevent a
portion, which the testator and the witnesses are not required to gross miscarriage of justice. Also, in Barnes vs. Padilla,[20] the
sign.[9] Also, it held that inasmuch as the number of pages upon Court suspended the rule that a motion for extension of time to file
which the will was written was stated in the Acknowledgement, a motion for reconsideration in the CA does not toll the fifteen-day
the will must be admitted to probate.[10] The respondents' period to appeal. The Court held that the procedural infirmity was
allegation of undue influence or improper pressure exerted upon not entirely attributable to the fault of the petitioner and there was
Legaspi was disregarded for failure on their part to adduce lack of any showing that the review sought is merely frivolous and
[11]
evidence proving the existence thereof. dilatory. Similarly, in Philippine Bank of Communications vs.

Yeung,[21] the Court permitted the delay of seven (7) days in the
Aggrieved, the respondents appealed to the CA. filing of the motion for reconsideration in view of the CA's
erroneous application of legal principles to prevent the resulting
THE RULING OF THE CA inequity that might arise from the outright denial of the petition.

[12]
In its assailed Decision dated May 22, 2013, the CA reversed the In the present case, the petitioner's motion for reconsideration of
judgment of the RTC, as the CA adhered to the view of strictly the CA decision was indeed filed a day late. However, taking into
complying with the requirement of stating the number of pages of account the substantive merit of the case, and also, the conflicting
the will in the attestation clause. Moreover, the CA detected rulings of the RTC and CA, a relaxation of the rules becomes
another supposed fatal defect in the will: the photocopy of the will imperative to prevent the commission of a grave injustice. Verily, a
submitted by the respondents on appeal did not contain the rigid application of the rules would inevitably lead to the automatic
signatures of the instrumental witnesses on each and every page defeasance of Legaspi's last will and testament- an unjust result
thereof. Thus, the CA disposed of the appeal in this wise: that is not commensurate with the petitioner's failure to comply
WHEREFORE, the appealed decision dated February 23, 2009 with the required procedure.
rendered by the Regional Trial Court, Branch 128 of Caloocan City
in Special Proceeding Case No. C-3450 for probate of the last will One of the issues raised by the petitioner entails an examination of
and testament of the deceased Remedios Legaspi y Reyes is the records of the case, as it pertains to the factual findings of the
REVERSED AND SET ASIDE. CA. As a general rule, a petition for review on certiorari may only
raise questions of law, as provided under Rule 45 of the 1997
[13]
SO ORDERED. The respondents filed their motion for Rules of Civil Procedure. Nevertheless, the Court will not hesitate
reconsideration a day late. Thus, the CA denied the same in a to set aside the general rule when circumstances exist warranting
[14]
Resolution dated August 15, 2014. the same, such as in the present case, where the findings of fact of
the probate court and CA are conflicting. Additionally, it appears



that the CA manifestly overlooked certain relevant facts not concluding otherwise. There is no doubt that the requirement
disputed by the parties, which, if properly considered, would justify under the Article 805 of the Civil Code, which calls for the
[22]
a different conclusion. signature of the testator and of the instrumental witnesses on each

and every page of the will on the left margin, except the last, was
According to the CA, while Legaspi signed on the left margin of complied with.
each and every page of her will, the instrumental witnesses failed
to do the same, in blatant violation of Article 805 of the Civil Code It should also be mentioned that the respondents take a skewed
which states: stance in insisting that the testator Legaspi and the instrumental
Article 805. Every will, other than a holographic will, must be witnesses should have signed on the last page of the subject will.
subscribed at the end thereof by the testator himself or by the When Article 805 of the Civil Code requires the testator to
testator's name written by some other person in his presence, and subscribe at the end of the will, it necessarily refers to the logical
by his express direction, and attested and subscribed by three or end thereof, which is where the last testamentary disposition
more credible witnesses in the presence of the testator and of one ends.[29] As the probate court correctly appreciated, the last page
another. of the will does not contain any testamentary disposition; it is but a
mere continuation of the Acknowledgment.[30]

The testator or the person requested by him to write his name and
the instrumental witnesses of the will, shall also sign, as As to whether the failure to state the number of pages of the will in
aforesaid, each and every page thereof, except the last, on the the attestation clause renders such will defective, the CA, citing Uy
left margin, and all the pages shall be numbered correlatively in Coque vs. Naves Sioca[31] and In re: Will of Andrada, perceived
letters placed on the upper part of each page. such omission as a fatal flaw.[32] In Uy Coque, one of the defects in
the will that led to its disallowance is the failure to declare the
The attestation shall state the number of pages used upon which number of its pages in the attestation clause. The Court elucidated
the will is written, and the fact that the testator signed the will and that the purpose of requiring the number of pages to be stated in
every page thereof, or caused some other person to write his the attestation clause is to make the falsification of a will more
name, under his express direction, in the presence of the difficult. In In re: Will of Andrada, the Court deemed the failure to
instrumental witnesses, and that the latter witnessed and signed state the number of pages in the attestation clause, fatal. Both
the will and all the pages thereof in the presence of the testator pronouncements were, however, made prior to the effectivity of
and of one another. the Civil Code on August 30, 1950.

If the attestation clause is in a language not known to the Subsequently, in Singson vs. Florentino,[33] the Court adopted a
witnesses, it shall be interpreted to them. (Emphasis supplied)The more liberal approach and allowed probate, even if the number of
petitioner, in assailing the findings of the CA, argues that in the pages of the will was mentioned in the last part of the body of the
[23]
original copy of the will that was offered before the probate will and not in the attestation clause. This is to prevent the will of
court as Exhibit "L," it is clear that the instrumental witnesses the testator from being defeated by purely technical
signed on the left margin of every page of the will except the last, considerations.[34]
as did Legaspi.[24] The petitioner advances that the confusion
arose when the respondents, in their record of appeal, submitted The substantial compliance rule is embodied in the Civil Code as
an altered photocopy[25] of the will to the CA, in which the Article 809 thereof, which provides that:
signatures of the instrumental witnesses were covered when Article 809. In the absence of bad faith, forgery, or fraud, or undue
photocopied, to make it appear that the witnesses did not sign on and improper pressure and influence, defects and imperfections in
every page. This misled the CA to rule that the will was defective the form of attestation or in the language used therein shall not
for the lack of signatures.[26] render the will invalid if it is proved that the will was in fact

executed and attested in substantial compliance with all the
For their part, the respondents do not deny that the original copy requirements of Article 805.Thus, in Taboada vs. Hon. Rosal,[35] the
of the will, as opposed to its photocopy, bore the signatures of the Court allowed the probate of a will notwithstanding that the
instrumental witnesses on every page thereof, except the last.[27] number of pages was stated not in the attestation clause, but in
However, they submit that they did not cause any alteration to the the Acknowledgment. In Azuela vs. CA,[36] the Court ruled that
photocopied version. They explain that since the folder holding there is substantial compliance with the requirement, if it is stated
the records of the case was bound on the left margin and the elsewhere in the will how many pages it is comprised of.
pages may not be detached therefrom, the left portion of the will
must have been unintentionally excluded or cut-off in the process What is imperative for the allowance of a will despite the existence
[28]
of photocopying. of omissions is that such omissions must be supplied by an

examination of the will itself, without the need of resorting to
In any event, it is uncontested and can be readily gleaned that the extrinsic evidence. "However, those omissions which cannot be
instrumental witnesses signed on each and every page of the will, supplied except by evidence aliunde would result in the
except the last page. Such being the case, the CA erred in invalidation of the attestation clause and ultimately, of the will


itself."[37] Pambujan, Samar, on February 14, 1949.

An examination of the will in question reveals that the attestation The main objection insisted upon by the appellants is that the will
clause indeed failed to state the number of pages comprising the is fatally defective, because its attestation clause is not signed by
will. However, as was the situation in Taboada, this omission was the attesting witnesses. There is no question that the signatures
supplied in the Acknowledgment. It was specified therein that the of the three witnesses to the will do not appear at the bottom of
will is composed of four pages, the Acknowledgment included. As the attestation clause, although the page containing the same is
[38]
with the will, the Acknowledgment is written in Filipino, quoted signed by the witnesses on the left-hand margin.
in part below:
x x x x We are of the opinion that the position taken by the appellant is
correct. The attestation clause is "a memorandum of the facts
Ang HULING HABILlNG ito ay binubuo ng apat (4) na dahon, attending the execution of the will" required by law to be made by
kasama ang dahong kinaroroonan ng Pagpapatunay at the attesting witnesses, and it must necessarily bear their
Pagpapatotoong ito. signatures. An unsigned attestation clause cannot be considered
as an act of the witnesses, since the omission of their signatures at
[39]
x x x x In sum, Legaspi's last will and testament has substantially the bottom thereof negatives their participation.
complied with all the formalities required of a notarial will. It has
been proven that Legaspi and the instrumental witnesses signed The petitioner and appellee contends that signatures of the three
on every page of the will, except on the last, which refers to the witnesses on the left-hand margin conform substantially to the law
Acknowledgment page. With regard to the omission of the number and may be deemed as their signatures to the attestation clause.
of pages in the attestation clause, this was supplied by the This is untenable, because said signatures are in compliance with
Acknowledgment portion of the will itself without the need to the legal mandate that the will be signed on the left-hand margin
resort to extrinsic evidence. Contrary to the CA conclusion, such of all its pages. If an attestation clause not signed by the three
omission does not in any way serve as hindrance to probate. witnesses at the bottom thereof, be admitted as sufficient, it would
be easy to add such clause to a will on a subsequent occasion and
WHEREFORE, premises considered, the petition is GRANTED. The in the absence of the testator and any or all of the witnesses.
Decision dated May 22,2013 and Resolution dated August 15, 2014
of the Court of Appeals in CA-G.R. CV No. 93671 are hereby Wherefore, the appealed decision is reversed and the probate of
REVERSED and SET ASIDE. The Decision dated February 23, the will in question denied. So ordered with costs against the
2009 of the Regional Trial Court, Branch 128 of Caloocan City in petitioner and appellee.
SP. Proc. Case No. C-3450 is REINSTATED and AFFIRMED. The
case is remanded to the trial court for further proceedings. Pablo, Bengzon, Montemayor, Jugo and Labrado, JJ., concur.

SO ORDERED.
24 Cruz v. Villasor (1973) 54 SCRA 31
Carpio,* (Acting C. J.), Peralta, Perlas-Bernabe, and Caguioa, JJ.,
153 Phil. 315
concur.

23 Cagro v. Cagro (1953) 92 Phil 1032 FIRST DIVISION
92 Phil. 1032
[ G.R. No. L-32213, November 26, 1973 ]

[ G. R. No. L-5826, April 29, 1953 ] AGAPITA N. CRUZ, PETITIONER, VS. HON. JUDGE
GUILLERMO P. VILLASOR, PRESIDING JUDGE OF BRANCH
I, COURT OF FIRST INSTANCE OF CEBU, AND MANUEL B.
TESTATE ESTATE OF THE LATE VICENTE CAGRO. JESUSA LUGAY, RESPONDENTS.
CAGRO, PETITIONER AND APPELLEE, VS. PELAGIO
CAGRO, ET AL., OPPOSITIORS AND APPELLANTS.

D E C I S I O N D E C I S I O N

PARAS, C.J.: ESGUERRA, J.:

This is an appeal interposed by the oppositiors from a decision of Petition to review on certiorari the judgment of the Court of First
the Court of First Instance of Samar, admitting to probate the will Instance of Cebu allowing the probate of the last will and
allegedly executed by Vicente Cagro who died in Laoangan,


testament of the late Valente Z. Cruz. Petitioner-appellant Agapita Language, p. 252; Webster's New International Dictionary 2d. p.
N. Cruz, the surviving spouse of the said deceased, opposed the 245.) Consequently, if the third witness were the notary public
allowance of the will (Exhibit "E"), alleging that the will was himself, he would have to avow, assent, or admit his having signed
executed through fraud, deceit, misrepresentation and undue the will in front of himself. This cannot be done because he cannot
influence; that the said instrument was executed without the split his personality into two so that one will appear before the
testator having been fully informed of the contents thereof, other to acknowledge his participation in the making of the will. To
particularly as to what properties he was disposing; and that the permit such a situation to obtain would be sanctioning a sheer
supposed last will and testament was not executed in accordance absurdity.
with law. Notwithstanding her objection, the Court allowed the
probate of the said last will and testament. Hence this appeal by Furthermore, the function of a notary public is, among others, to
certiorari which was given due course. guard against any illegal or immoral arrangements. (Balinon v. De
Leon, 50 O. G. 583.) That function would be defeated if the notary
The only question presented for determination, on which the public were one of the attesting or instrumental witnesses. For
decision of the case hinges, is whether the supposed last will and then he would be interested in sustaining the validity of the will as
testament of Valente Z. Cruz (Exhibit "E") was executed in it directly involves himself and the validity of his own act. It would
accordance with law, particularly Articles 805 and 806 of the new place him in an inconsistent position and the very purpose of the
Civil Code, the first requiring at least three credible witnesses to acknowledgment, which is to minimize fraud (Report of the Code
attest and subscribe to the will, and the second requiring the Commission p. 106-107), would be thwarted.
testator and the witnesses to acknowledge the will before a notary
public. Admittedly, there are American precedents holding that a notary
public may, in addition, act as a witness to the execution of the
Of the three instrumental witnesses thereto, namely, Deogracias T. document he has notarized. (Mahilum v. Court of Appeals, 64 O. G.
Jamaoas, Jr., Dr. Francisco Pañares, and Atty. Angel H. Teves, Jr., 4017; 17 SCRA 482; Sawyer v. Cox, 43 Ill. 130). There are others
one of them, the last named, is at the same time the Notary Public holding that his signing merely as a notary in a will nonetheless
before whom the will was supposed to have been acknowledged. makes him a witness thereunder (Ferguson v. Ferguson, 47 S. E.
Reduced to simpler terms, the question to resolve is whether the 2d. 346; In Re Douglas' Will, 83 N. Y. S. 2d. 641; Ragsdal v. Hill, 269
last will and testament in question was attested and subscribed by S. W. 2d. 911; Tyson v. Utterback, 122 So. 496; In Re Baybee's
at least three credible witnesses in the presence of the testator Estate 160 N. W. 900; Merrill v. Boal, 132 A. 721; See also Trenwith
and of each other, considering that the three attesting witnesses v. Smallwood, 15 So. 1030). But these authorities do not serve the
must appear before the notary public to acknowledge the same. purpose of the law in this jurisdiction or are not decisive of the
As the third witness is the notary public himself, petitioner argues issue herein, because the notaries public and witnesses referred
that the result is that only two witnesses appeared before the to in the aforecited cases merely acted as instrumental,
notary public to acknowledge the will. On the other hand, private subscribing or attesting witnesses, and not as acknowledging
respondent -appellee, Manuel B. Lugay, who is the supposed witnesses. Here the notary public acted not only as attesting
executor of the will, following the reasoning of the trial court, witness but also as acknowledging witness, a situation not
maintains that there is substantial compliance with the legal envisaged by Article 806 of the Civil Code which reads:
requirement of having at least three attesting witnesses even if the "ART. 806. Every will must be acknowledged before a notary
notary public acted as one of them, bolstering up his stand with 57 public by the testator and the witnesses. The notary public shall
American Jurisprudence, p. 227 which, insofar as pertinent, reads not be required to retain a copy of the will or file another with the
as follows: office of the Clerk of Court." [Underscoring supplied]To allow the
"It is said that there are practical reasons for upholding a will as notary public to act as third witness, or one of the attesting and
against the purely technical reason that one of the witnesses acknowledging witnesses, would have the effect of having only
required by law signed as certifying to an acknowledgment of the two attesting witnesses to the will which would be in contravention
testator's signature under oath rather than as attesting the of the provisions of Article 805 requiring at least three credible
execution of the instrument."After weighing the merits of the witnesses to act as such and of Article 806 which requires that the
conflicting claims of the parties, We are inclined to sustain that of testator and the required number of witnesses must appear before
the appellant that the last will and testament in question was not the notary public to acknowledge the will. The result would be, as
executed in accordance with law. The notary public before whom has been said, that only two witnesses appeared before the notary
the will was acknowledged cannot be considered as the third public for that purpose. In the circumstances, the law would not be
instrumental witness since he cannot acknowledge before himself duly observed.
his having signed the will. To acknowledge before means to avow
(Javellana v. Ledesma, 97 Phil. 258, 262; Castro v. Castro, 100 Phil. FOR ALL THE FOREGOING, the judgment appealed from is
239, 247); to own as genuine, to assent, to admit; and "before" hereby reversed and the probate of the last will and testament of
means in front or preceding in space or ahead of. (The New Valente Z. Cruz (Exhibit "E") is declared not valid and hereby set
Webster Encyclopedic Dictionary of the English Language, p. 72; aside.
Funk & Wagnalls New Standard Dictionary of the English


Costs against the appellee. property involved was exclusively hers.

Our examination of the testimony on record discloses no grounds
Makalintal, C.J., Ruiz Castro, Teehankee, Makasiar, and Muñoz for reversing the trial Court's rejection of the improbable story of
Palma, JJ., concur these witnesses. It is squarely contradicted by the concordant
testimony of the instrumental witnesses, Vicente Yap, Atty. Ramon
25 Javellana v. Ledesma G.R. No. L-7179 97 Phil C. Tabiana, and his wife Gloria Montinola, who asserted under oath
258 (1955) that the testament was executed by testatrix and witnesses in the
97 Phil. 258 presence of each other, at the house of the decedent on General
Hughes St., Iloilo City, on March 30, 1950. And it is highly unlikely,

and contrary to usage, that either Tabiana or Yap should have
[ G. R. No. L-7179, June 30, 1955 ] insisted that Da. Apolinaria, an infirm lady then over 80 years old,
should leave her own house in order to execute her will, when all
TESTATE ESTATE OF THE LATE APOLINARIA LEDESMA. three witnesses could have easily repaired thither for the purpose.

FELICIDAD JAVELLANA, PETITIONER AND APPELLEE, VS. Moreover, the cross-examination has revealed fatal flaws in the
DONA MATEA LEDESMA, OPPOSITOR AND APPELLANT. testimony of Contestant's witnesses. Both claim to have heard the
word "testamento" for the first time when Yap used it; and yet they
D E C I S I O N
claimed ability to recall that word four years later, despite the fact
that the term meant nothing to either. It is well known that what is
REYES, J.B.L., J.: to be remembered must first be rationally conceived and
assimilated (II Moore on Facts, p. 884). Likewise, Maria Paderogao
was positive that Yap brought ,the will, and that the deceased
By order of July 23, 1953, the Court of First Instance of Iloilo alone signed it, precisely on March 30, 1950; but she could
admitted to probate the documents in the Visayan dialect, marked remember no other date, nor give satisfactory explanation why
Exhibits D and E as the testament and codicil duly executed by the that particular day stuck in her mind. Worse still, Allado claimed to
deceased Da. Apolinaria Ledesma Vda. de Javellana, on March 30, have hearoT what allegedly transpired between Yap and Da.
1950, and May 29, 1952, respectively, with Ramon Tabiana, Gloria Apolinaria from the kitchen of the house, that was later proved to
Montinola de Tabiana and. Vicente Yap as witnesses. The have been separated from the deceased's quarters, and standing
contestant, Da. Matea Ledesma, sister and nearest surviving at a much lower level, so that conversations in the main building
relative of said deceased, appealed from the decision, insisting could not be distinctly heard from the kitchen. Later, on redirect
that the said exhibits were not executed in conformity with law. examination, Allado sought to cure his testimony by claiming that
The appeal was made directly to this Court because the value of he was upstairs in a room where the servants used to eat when he
the properties involved exceeded two hundred thousand pesos. heard Yap converse with his mistress; but this correction is
Originally the opposition to the probate also charged that the unavailing, since it was plainly induced by two highly leading
testatrix lacked testamentary capacity and that the dispositions questions from contestants counsel that had been previously ruled
were procured through undue influence. These grounds were out by the trial Court. Besides, the contradiction is hardly
abandoned at the hearing in the court below, where the issue was consonant with this witness' 18 years of service to the deceased.
concentrated into three specific questions: (1) whether the Upon the other hand, the discrepancies in the testimony of the
testament of 1950 was executed by the testatrix in the presence of instrumental witnesses urged upon us by the contestant-appellant,
the instrumental witnesses; (2) whether the acknowledgment concerning the presence or absence of | Aurelio Montinola at the
clause was signed and the notarial seal affixed by the notary signing of the testament or of the codicil, and the identity of the
without the presence of the testatrix and the witnesses; and (3) if person who inserted the date therein, are not material and are
so, whether the codicil was thereby rendered invalid and largely imaginary, since the witness Mrs. Tabiana confessed
ineffective. These questions are the same ones presented to us inability to remember all the details of the transaction. Neither are
for resolution. we impressed by the argument that the use of some Spanish
The contestant argues that the Court below erred in refusing terms in the codicil and testament (like legado, paries iguales,
credence to her witnesses Maria Paderogao and Vidal Allado, plena propiedad) is proof that its contents were not understood by
cook and driver, respectively, of the deceased Apolinaria the testatrix, it appearing in evidence that those terms are of
Ledesma. Both testified that on March 30, 1950, they saw and common use even in the vernacular, and that the deceased was a
heard Vicente Yap (one of the witnesses to the will) inform the woman of wide business interests.
deceased that he had brought the "testamento" and urge her to The most important variation noted by the contestants concerns
go to attorney Tabiana's office to sign it; that Da. Apolinaria that signing of the certificate of acknowledgment (in Spanish)
manifested that she could not go, because she was not feeling appended to the Codicil in Visayan, Exhibit E. Unlike the
well; and that upon Yap's insistence that the will had to be signed testament, this codicil was executed after the enactment of the
in the attorney's office and not elsewhere, the deceased took the new Civil Code, and, therefore, had to be acknowledged before a
paper and signed it in the presence of Yap alone, and returned it notary public (Art. 806). Now, the instrumental witnesses (who
with the statement that no one would question it because the happen to be the same ones who attested the will of 1950)


asserted that after the codicil had been signed by the testratrix
and the witnesses at San Pablo Hospital, the same was signed and CORONA, J.:
sealed by notary public Gimotea on the same occasion. On the
other hand, Gimotea affirmed that he did not do so, but brought The Scriptures tell the story of the brothers Jacob and Esau[1],
the codicil to his office, and signed and sealed it there. The siblings who fought bitterly over the inheritance of their father
variance does not necessarily imply conscious perversion of truth Isaac's estate. Jurisprudence is also replete with cases involving
on the part of the witnesses, but appears rather due to a acrimonious conflicts between brothers and sisters over
well-established phenomenon the tendency of the mind, in successional rights. This case is no exception.
recalling past events, to substitute the usual and habitual for what
differs slightly from it (II Moore on Facts, p. 878; The Ellen On February 19, 1994, Felisa Tamio de Buenaventura, mother of
McGovern, 27 Fed. 868, 870). petitioner Bella A. Guerrero and respondent Resurreccion A. Bihis,
At any rate, as observed by the Court below, whether or not the died at the Metropolitan Hospital in Tondo, Manila.
notary signed the certification of acknowledgment in the presence
of the testatrix and the witnesses, does not affect the validity of On May 24, 1994, petitioner filed a petition for the probate of the
the codicil. Unlike the Code of 1889 (Art. 699), the new Civil Code last will and testament of the decedent in Branch 95[2] of the
does not require that the signing of the testator, witnesses and Regional Trial Court of Quezon City where the case was docketed
notary should be accomplished in one single act. A comparison of as Sp. Proc. No. Q-94-20661.
Articles 805 and 806 of the new Civil Code reveals that while
testator and witnesses must sign in the presence of each other, all The petition alleged the following: petitioner was named as
that is thereafter required is that "every will must be executrix in the decedent's will and she was legally qualified to act
acknowledged before a notary public by the testator and the as such; the decedent was a citizen of the Philippines at the time
witnesses" (Art. 806); i.e., that the latter should avow to the of her death; at the time of the execution of the will, the testatrix
certifying officer the authenticity of their signatures and the was 79 years old, of sound and disposing mind, not acting under
voluntariness of their actions in executing the testamentary duress, fraud or undue influence and was capacitated to dispose
disposition. This was done in the case before us. The subsequent of her estate by will.
signing and sealing by the notary of his certification that the
testament was duly acknowledged by the participants therein is no Respondent opposed her elder sister's petition on the following
part of the acknowledgment itself nor of the testamentary act. grounds: the will was not executed and attested as required by
Hence their separate execution out of the presence of the testatrix law; its attestation clause and acknowledgment did not comply
and her witnesses can not be said to violate the rule that with the requirements of the law; the signature of the testatrix was
testaments should be completed without interruption (Andalis vs. procured by fraud and petitioner and her children procured the will
Pulgueras, 59 Phil. 643), or, as the Roman maxim puts it, "uno through undue and improper pressure and influence.
eodem die ac tempore in eadem loco", and no reversible error
was committed by the Court in so holding. It is noteworthy that In an order dated November 9, 1994, the trial court appointed
Article 806 of the new Civil Code does not contain words requiring petitioner as special administratrix of the decedent's estate.
that the testator and the witnesses should acknowledge the Respondent opposed petitioner's appointment but subsequently
testament on the same day or occasion that it was executed. withdrew her opposition. Petitioner took her oath as temporary
The decision admitting the will to probate is affirmed, with costs special administratrix and letters of special administration were
against appellant. issued to her.
Bengzon, Acting C.J., Padilla, Montemayor, Reyes, A., Jugo,
Bautista Angelo, Labrador, and Concepcion, JJ., concur. On January 17, 2000, after petitioner presented her evidence,
respondent filed a demurrer thereto alleging that petitioner's
evidence failed to establish that the decedent's will complied with
26 Guerrero v. Bihis 521 SCRA 394 (2007) Articles 804 and 805 of the Civil Code.

549 Phil. 908
In a resolution dated July 6, 2001, the trial court denied the
probate of the will ruling that Article 806 of the Civil Code was not

complied with because the will was "acknowledged" by the
testatrix and the witnesses at the testatrix's, residence at No. 40
FIRST DIVISION
Kanlaon Street, Quezon City before Atty. Macario O. Directo who
[ G.R. NO. 174144, April 17, 2007 ] was a commissioned notary public for and in Caloocan City. The
dispositive portion of the resolution read:
BELLA A. GUERRERO, PETITIONER, VS. RESURRECCION WHEREFORE, in view of the foregoing, the Court finds, and so
A. BIHIS, RESPONDENT. declares that it cannot admit the last will and testament of the late

Felisa Tamio de Buenaventura to probate for the reasons
D E C I S I O N
hereinabove discussed and also in accordance with Article 839 [of


the Civil Code] which provides that if the formalities required by devisees or legatees in the will.[11]

law have not been complied with, the will shall be disallowed. In
view thereof, the Court shall henceforth proceed with intestate Acknowledgment can only be made before a competent officer,
succession in regard to the estate of the deceased Felisa Tamio that is, a lawyer duly commissioned as a notary public.
de Buenaventura in accordance with Article 960 of the [Civil
Code], to wit: "Art. 960. Legal or intestate succession takes place: In this connection, the relevant provisions of the Notarial Law
(1) If a person dies without a will, or with a void will, or one which provide:
has subsequently lost its validity, xxx." SECTION 237. Form of commission for notary public. -The
appointment of a notary public shall be in writing, signed by the
SO ORDERED.[3]Petitioner elevated the case to the Court of judge, and substantially in the following form:
Appeals but the appellate court dismissed the appeal and affirmed
[4]
the resolution of the trial court. GOVERNMENT OF THE

REPUBLIC OF THE PHILIPPINES
Thus, this petition.[5] PROVINCE OF ___________

Petitioner admits that the will was acknowledged by the testatrix This is to certify that ____________, of the municipality of
and the witnesses at the testatrix's residence in Quezon City ________ in said province, was on the ___ day of __________,
before Atty. Directo and that, at that time, Atty. Directo was a anno Domini nineteen hundred and _______, appointed by me a
commissioned notary public for and in Caloocan City. She, notary public, within and for the said province, for the term
however, asserts that the fact that the notary public was acting ending on the first day of January, anno Domini nineteen hundred
outside his territorial jurisdiction did not affect the validity of the and _____.
notarial will.
_________________
Did the will "acknowledged" by the testatrix and the instrumental Judge of the Court of
witnesses before a notary public acting outside the place of his irst Instance[12] of said
commission satisfy the requirement under Article 806 of the Civil Province
Code? It did not.
xxx xxx xxx
Article 806 of the Civil Code provides:
ART. 806. Every will must be acknowledged before a notary public SECTION 240. Territorial jurisdiction. - The jurisdiction of a notary
by the testator and the witnesses. The notary public shall not be public in a province shall be co-extensive with the province. The
required to retain a copy of the will, or file another with the office jurisdiction of a notary public in the City of Manila shall be
of the Clerk of Court.One of the formalities required by law in co-extensive with said city. No notary shall possess authority to
connection with the execution of a notarial will is that it must be do any notarial act beyond the limits of his jurisdiction.
acknowledged before a notary public by the testator and the (emphases supplied)A notary public's commission is the grant of
[6]
witnesses. This formal requirement is one of the indispensable authority in his favor to perform notarial acts.[13] It is issued "within
requisites for the validity of a will.[7] In other words, a notarial will and for" a particular territorial jurisdiction and the notary public's
that is not acknowledged before a notary public by the testator authority is co-extensive with it. In other words, a notary public is
and the instrumental witnesses is void and cannot be accepted for authorized to perform notarial acts, including the taking of
probate. acknowledgments, within that territorial jurisdiction only. Outside
the place of his commission, he is bereft of power to perform any
An acknowledgment is the act of one who has executed a deed in notarial act; he is not a notary public. Any notarial act outside the
going before some competent officer and declaring it to be his act limits of his jurisdiction has no force and effect. As this Court
[8]
or deed. In the case of a notarial will, that competent officer is the categorically pronounced in Tecson v. Tecson:[14]
notary public. An acknowledgment taken outside the territorial limits of the
officer's jurisdiction is void as if the person taking it ware wholly
The acknowledgment of a notarial will coerces the testator and the without official character. (emphasis supplied)Since Atty. Directo
instrumental witnesses to declare before an officer of the law, the was not a commissioned notary public for and in Quezon City, he
notary public, that they executed and subscribed to the will as lacked the authority to take the acknowledgment of the testatrix
their own free act or deed.[9] Such declaration is under oath and and the instrumental witnesses. In the same vein, the testatrix and
under pain of perjury, thus paving the way for the criminal her witnesses could not have validly acknowledged the will before
prosecution of persons who participate in the execution of him. Thus, Felisa Tamio de Buenaventura's last will and testament
spurious wills, or those executed without the free consent of the was, in effect, not acknowledged as required by law.
testator.[10] It also provides a further degree of assurance that the
testator is of a certain mindset in making the testamentary Moreover, Article 5 of the Civil Code provides:
dispositions to the persons instituted as heirs or designated as



ART. 5. Acts executed against the provisions of mandatory or satisfactorily. For this reason, the Court cannot attribute any
prohibitory laws shall be void, except when the law itself reversible error on the part of the appellate tribunal that allowed
authorizes their validity. the probate of the will.

The violation of a mandatory or a prohibitory statute renders the The Case
act illegal and void unless the law itself declares its continuing
validity. Here, mandatory and prohibitory statutes were Before the Court is a Petition for Review[1] under Rule 45 of the
transgressed in the execution of the alleged "acknowledgment." Rules of Court, seeking to reverse and set aside the December 12,
The compulsory language of Article 806 of the Civil Code was not 2002 Decision[2] and the March 7, 2003 Resolution[3] of the Court
complied with and the interdiction of Article 240 of the Notarial of Appeals (CA) in CA-GR CV No. 44296. The assailed Decision
Law was breached. Ineluctably, the acts of the testatrix, her disposed as follows:
witnesses and Atty. Directo were all completely void. "WHEREFORE, the appeal is GRANTED, and the Decision
appealed from is REVERSED and SET ASIDE. In its place
The Court cannot turn a blind eye to Atty. Directo's participation in judgment is rendered approving and allowing probate to the said
the preparation, execution and unlawful "acknowledgment" of last will and testament of Placido Valmonte and ordering the
Felisa Tamio de Buenaventura's will. Had he exercised his notarial issuance of letters testamentary to the petitioner Josefina
commission properly, the intent of the law to effectuate the Valmonte. Let this case be remanded to the court a quo for further
decedent's final statements[15] as expressed in her will would not and concomitant proceedings."[4]The assailed Resolution denied
[16]
have come to naught. Hence, Atty. Directo should show cause petitioner's Motion for Reconsideration.
why he should not be administratively sanctioned as a member of
the bar and as an officer of the court. The Facts

WHEREFORE, the petition is hereby DENIED. The facts were summarized in the assailed Decision of the CA, as
follows:
Costs against petitioner. "x x x: Like so many others before him, Placido toiled and lived for
a long time in the United States until he finally reached retirement.
Let a copy of this decision be furnished the Commission on Bar In 1980, Placido finally came home to stay in the Philippines, and
Discipline of the Integrated Bar of the Philippines for investigation, he lived in the house and lot located at #9200 Catmon St., San
report and recommendation on the possible misconduct of Atty. Antonio Village, Makati, which he owned in common with his sister
Macario O. Directo. Ciriaca Valmonte and titled in their names in TCT 123468. Two
years after his arrival from the United States and at the age of 80
SO ORDERED. he wed Josefina who was then 28 years old, in a ceremony
solemnized by Judge Perfecto Laguio, Jr. on February 5, 1982. But
Puno, C.J., (Chairperson), Sandoval-Gutierrez, Azcuna and Garcia, in a little more than two years of wedded bliss, Placido died on
JJ., concur. October 8, 1984 of a cause written down as COR PULMONALE.

27 Ortega v. Valmonte 478 SCRA 247 (2005) "Placido executed a notarial last will and testament written in
English and consisting of two (2) pages, and dated June 15, 1983
514 Phil. 436
but acknowledged only on August 9, 1983. The first page contains
the entire testamentary dispositions and a part of the attestation

clause, and was signed at the end or bottom of that page by the
testator and on the left hand margin by the three instrumental
THIRD DIVISION
witnesses. The second page contains the continuation of the
[ G.R. NO. 157451, December 16, 2005 ] attestation clause and the acknowledgment, and was signed by
the witnesses at the end of the attestation clause and again on the
LETICIA VALMONTE ORTEGA, PETITIONER, VS. left hand margin. It provides in the body that:
JOSEFINA C. VALMONTE, RESPONDENT. "LAST WILL AND TESTAMENT OF PLACIDO VALMONTE IN THE
NAME OF THE LORD AMEN:
D E C I S I O N

"I, PLACIDO VALMONTE, of legal age, married to Josefina
PANGANIBAN, J.: Cabansag Valmonte, and a resident of 9200 Catmon Street,
Makati, Metro Manila, 83 years of age and being of sound and
The law favors the probate of a will. Upon those who oppose it disposing mind and memory, do hereby declare this to be my last
rests the burden of showing why it should not be allowed. In the will and testament:
present case, petitioner has failed to discharge this burden 1. It is my will that I be buried in the Catholic Cemetery, under
the auspices of the Catholic Church in accordance with the


rites and said Church and that a suitable monument to be

erected and provided my by executrix (wife) to perpetuate 5. Will was executed under duress, or the influence of fear or
my memory in the minds of my family and friends; threats;

2. I give, devise and bequeath unto my loving wife, 6. Will was procured by undue and improper influence and
JOSEFINA C. VALMONTE, one half (1/2) portion of the pressure on the part of the petitioner and/or her agents
follow-described properties, which belongs to me as and/or assistants; and/or
[co-owner]:
7. Signature of testator was procured by fraud, or trick, and
a. Lot 4-A, Block 13 described on plan Psd-28575, he did not intend that the instrument should be his will at
LRC, (GLRO), situated in Makati, Metro Manila, the time of affixing his signature thereto;"
described and covered by TCT No. 123468 of the and she also opposed the appointment as Executrix of Josefina
Register of Deeds of Pasig, Metro-Manila alleging her want of understanding and integrity.
registered jointly as co-owners with my deceased
sister (Ciriaca Valmonte), having share and share "At the hearing, the petitioner Josefina testified and called as
alike; witnesses the notary public Atty. Floro Sarmiento who prepared
and notarized the will, and the instrumental witnesses spouses
b. 2-storey building standing on the above-described Eugenio Gomez, Jr. and Feliza Gomez and Josie Collado. For the
property, made of strong and mixed materials used opposition, the oppositor Leticia and her daughter Mary Jane
as my residence and my wife and located at No. Ortega testified.
9200 Catmon Street, Makati, Metro Manila also
covered by Tax Declaration No. A-025-00482, "According to Josefina after her marriage with the testator they
Makati, Metro-Manila, jointly in the name of my lived in her parents house at Salingcob, Bacnotan, La Union but
deceased sister, Ciriaca Valmonte and myself as they came to Manila every month to get his $366.00 monthly
co-owners, share and share alike or equal pension and stayed at the said Makati residence. There were
co-owners thereof; times though when to shave off on expenses, the testator would
3. travel alone. And it was in one of his travels by his lonesome self
All the rest, residue and remainder of my real and personal when the notarial will was made. The will was witnessed by the
properties, including my savings account bank book in spouses Eugenio and Feliza Gomez, who were their wedding
USA which is in the possession of my nephew, and all sponsors, and by Josie Collado. Josefina said she had no
others whatsoever and wherever found, I give, devise and knowledge of the existence of the last will and testament of her
bequeath to my said wife, Josefina C. Valmonte; husband, but just serendipitously found it in his attache case after
his death. It was only then that she learned that the testator
4. I hereby appoint my wife, Josefina C. Valmonte as sole bequeathed to her his properties and she was named the
executrix of my last will and testament, and it is my will that executrix in the said will. To her estimate, the value of property
said executrix be exempt from filing a bond; both real and personal left by the testator is worth more or less
P100,000.00. Josefina declared too that the testator never
IN WITNESS WHEREOF, I have hereunto set my hand this suffered mental infirmity because despite his old age he went
th
15 day of June 1983 in Quezon City, Philippines." alone to the market which is two to three kilometers from their
home cooked and cleaned the kitchen and sometimes if she could
"The allowance to probate of this will was opposed by
not accompany him, even traveled to Manila alone to claim his
Leticia on the grounds that:
monthly pension. Josefina also asserts that her husband was in

good health and that he was hospitalized only because of a cold
1. Petitioner failed to allege all assets of the testator, but which eventually resulted in his death.
especially those found in the USA;
"Notary Public Floro Sarmiento, the notary public who notarized
2. Petitioner failed to state the names, ages, and residences the testator's will, testified that it was in the first week of June 1983
of the heirs of the testator; or to give them proper notice when the testator together with the three witnesses of the will
pursuant to law; went to his house cum law office and requested him to prepare his
last will and testament. After the testator instructed him on the
3. Will was not executed and attested as required by law and terms and dispositions he wanted on the will, the notary public told
legal solemnities and formalities were not complied with; them to come back on June 15, 1983 to give him time to prepare it.
After he had prepared the will the notary public kept it safely
4. Testator was mentally incapable to make a will at the time hidden and locked in his drawer. The testator and his witnesses
of the alleged execution he being in an advance sate of returned on the appointed date but the notary public was out of
senility; town so they were instructed by his wife to come back on August


9, 1983, and which they did. Before the testator and his witnesses Reversing the trial court, the appellate court admitted the will of
signed the prepared will, the notary public explained to them each Placido Valmonte to probate. The CA upheld the credibility of the
and every term thereof in Ilocano, a dialect which the testator notary public and the subscribing witnesses who had
spoke and understood. He likewise explained that though it acknowledged the due execution of the will. Moreover, it held that
appears that the will was signed by the testator and his witnesses the testator had testamentary capacity at the time of the execution
on June 15, 1983, the day when it should have been executed had of the will. It added that his "sexual exhibitionism and unhygienic,
he not gone out of town, the formal execution was actually on crude and impolite ways"[6] did not make him a person of unsound
August 9, 1983. He reasoned that he no longer changed the mind.
typewritten date of June 15, 1983 because he did not like the
document to appear dirty. The notary public also testified that to Hence, this Petition.[7]

his observation the testator was physically and mentally capable at
the time he affixed his signature on the will. Issues

"The attesting witnesses to the will corroborated the testimony of Petitioner raises the following issues for our consideration:
the notary public, and testified that the testator went alone to the
house of spouses Eugenio and Feliza Gomez at GSIS Village, "I.
Quezon City and requested them to accompany him to the house Whether or not the findings of the probate court are entitled to
of Atty. Floro Sarmiento purposely for his intended will; that after great respect.
giving his instructions to Atty. Floro Sarmiento, they were told to
return on June 15, 1983; that they returned on June 15, 1983 for the "II.
execution of the will but were asked to come back instead on
August 9, 1983 because of the absence of the notary public; that Whether or not the signature of Placido Valmonte in the subject
the testator executed the will in question in their presence while will was procured by fraud or trickery, and that Placido Valmonte
he was of sound and disposing mind and that he was strong and in never intended that the instrument should be his last will and
good health; that the contents of the will was explained by the testament.
notary public in the Ilocano and Tagalog dialect and that all of
them as witnesses attested and signed the will in the presence of "III.
the testator and of each other. And that during the execution, the
testator's wife, Josefina was not with them. Whether or not Placido Valmonte has testamentary capacity at the
time he allegedly executed the subject will."[8]

"The oppositor Leticia declared that Josefina should not inherit
alone because aside from her there are other children from the In short, petitioner assails the CA's allowance of the probate of the
siblings of Placido who are just as entitled to inherit from him. She will of Placido Valmonte.
attacked the mental capacity of the testator, declaring that at the This Court's Ruling
time of the execution of the notarial will the testator was already
83 years old and was no longer of sound mind. She knew whereof The Petition has no merit.
she spoke because in 1983 Placido lived in the Makati residence
and asked Leticia's family to live with him and they took care of Main Issue:
him. During that time, the testator's physical and mental condition Probate of a Will
showed deterioration, aberrations and senility. This was
corroborated by her daughter Mary Jane Ortega for whom Placido At the outset, we stress that only questions of law may be raised in
took a fancy and wanted to marry. a Petition for Review under Section 1 of Rule 45 of the Rules of
Court. As an exception, however, the evidence presented during
"Sifting through the evidence, the court a quo held that [t]he the trial may be examined and the factual matters resolved by this
evidence adduced, reduces the opposition to two grounds, Court when, as in the instant case, the findings of fact of the
namely: appellate court differ from those of the trial court.[9]

1. Non-compliance with the legal solemnities and formalities
in the execution and attestation of the will; and The fact that public policy favors the probate of a will does not
necessarily mean that every will presented for probate should be
2. Mental incapacity of the testator at the time of the allowed. The law lays down the procedures and requisites that
execution of the will as he was then in an advanced state must be satisfied for the probate of a will.[10] Verily, Article 839 of
of senility the Civil Code states the instances when a will may be disallowed,
"It then found these grounds extant and proven, and accordingly as follows:
disallowed probate."[5] "Article 839. The will shall be disallowed in any of the following
Ruling of the Court of Appeals cases:



(1) If the formalities required by law have not been complied with; affect the due execution of a will.[16] That the testator was tricked
into signing it was not sufficiently established by the fact that he
(2) If the testator was insane, or otherwise mentally incapable of had instituted his wife, who was more than fifty years his junior, as
making a will, at the time of its execution; the sole beneficiary; and disregarded petitioner and her family,
who were the ones who had taken "the cudgels of taking care of
(3) If it was executed through force or under duress, or the [the testator] in his twilight years."[17]

influence of fear, or threats;
Moreover, as correctly ruled by the appellate court, the conflict
(4) If it was procured by undue and improper pressure and between the dates appearing on the will does not invalidate the
influence, on the part of the beneficiary or of some other person; document, "because the law does not even require that a [notarial]
will x x x be executed and acknowledged on the same occasion."[18]
(5) If the signature of the testator was procured by fraud; More important, the will must be subscribed by the testator, as well
as by three or more credible witnesses who must also attest to it in
(6) If the testator acted by mistake or did not intend that the the presence of the testator and of one another.[19] Furthermore,
instrument he signed should be his will at the time of affixing his the testator and the witnesses must acknowledge the will before a
signature thereto."In the present case, petitioner assails the validity notary public.[20] In any event, we agree with the CA that "the
of Placido Valmonte's will by imputing fraud in its execution and variance in the dates of the will as to its supposed execution and
challenging the testator's state of mind at the time. attestation was satisfactorily and persuasively explained by the
notary public and the instrumental witnesses."[21]

Existence of Fraud in the
Execution of a Will The pertinent transcript of stenographic notes taken on June 11,
1985, November 25, 1985, October 13, 1986, and October 21, 1987
Petitioner does not dispute the due observance of the formalities -- as quoted by the CA -- are reproduced respectively as follows:
in the execution of the will, but maintains that the circumstances "Atty. Floro Sarmiento:
surrounding it are indicative of the existence of fraud. Particularly,
she alleges that respondent, who is the testator's wife and sole Q You typed this document exhibit C, specifying the date June 15
beneficiary, conspired with the notary public and the three when the testator and his witnesses were supposed to be in
attesting witnesses in deceiving Placido to sign it. Deception is your office?
allegedly reflected in the varying dates of the execution and the A Yes sir.
attestation of the will.
Q On June 15, 1983, did the testator and his witnesses come to
Petitioner contends that it was "highly dubious for a woman at the your house?
prime of her young life [to] almost immediately plunge into A They did as of agreement but unfortunately, I was out of town.
marriage with a man who [was] thrice her age x x x and who
[11]
happened to be [a] Fil-American pensionado," thus casting doubt xxx
on the intention of respondent in seeking the probate of the will. x x x
Moreover, it supposedly "defies human reason, logic and common x x x
experience"[12] for an old man with a severe psychological
condition to have willingly signed a last will and testament. Q The document has been acknowledged on August 9, 1983 as
per acknowledgement appearing therein. Was this the actual
We are not convinced. Fraud "is a trick, secret device, false date when the document was acknowledged?
statement, or pretense, by which the subject of it is cheated. It may A Yes sir.
be of such character that the testator is misled or deceived as to
the nature or contents of the document which he executes, or it Q What about the date when the testator and the three
may relate to some extrinsic fact, in consequence of the deception witnesses affixed their respective signature on the first and
regarding which the testator is led to make a certain will which, but second pages of exhibit C?
[13]
for the fraud, he would not have made." A On that particular date when it was acknowledged, August 9,

1983.
We stress that the party challenging the will bears the burden of
proving the existence of fraud at the time of its execution.[14] The Q Why did you not make the necessary correction on the date
burden to show otherwise shifts to the proponent of the will only appearing on the body of the document as well as the
[15]
upon a showing of credible evidence of fraud. Unfortunately in attestation clause?
this case, other than the self-serving allegations of petitioner, no A Because I do not like anymore to make some alterations so I
evidence of fraud was ever presented. put it in my own handwriting August 9, 1983 on the
acknowledgement. (tsn, June 11, 1985, pp. 8-10)
It is a settled doctrine that the omission of some relatives does not


Eugenio Gomez: A Yes sir. (tsn, October 21, 1987, pp. 4-5)"[22]
Notably, petitioner failed to substantiate her claim of a "grand
Q It appears on the first page Mr. Witness that it is dated June 15, conspiracy" in the commission of a fraud. There was no showing
1983, whereas in the acknowledgement it is dated August 9, that the witnesses of the proponent stood to receive any benefit
1983, will you look at this document and tell us this from the allowance of the will. The testimonies of the three
discrepancy in the date? subscribing witnesses and the notary are credible evidence of its
A We went to Atty. Sarmiento together with Placido Valmonte due execution.[23] Their testimony favoring it and the finding that it
and the two witnesses; that was first week of June and Atty. was executed in accordance with the formalities required by law
th
Sarmiento told us to return on the 15 of June but when we should be affirmed, absent any showing of ill motives.[24]

returned, Atty. Sarmiento was not there.
Capacity to Make a Will
Q When you did not find Atty. Sarmiento on June 15, 1983, did
you again go back? In determining the capacity of the testator to make a will, the Civil
A We returned on the 9th of August and there we signed. Code gives the following guidelines:
"Article 798. In order to make a will it is essential that the testator
Q This August 9, 1983 where you said it is there where you be of sound mind at the time of its execution.
signed, who were your companions?
A The two witnesses, me and Placido Valmonte. (tsn, November "Article 799. To be of sound mind, it is not necessary that the
25, 1985, pp. 7-8) testator be in full possession of all his reasoning faculties, or that
his mind be wholly unbroken, unimpaired, or shattered by disease,
Felisa Gomez on cross-examination: injury or other cause.

Q Why did you have to go to the office of Atty. Floro Sarmiento, "It shall be sufficient if the testator was able at the time of making
three times? the will to know the nature of the estate to be disposed of, the
proper objects of his bounty, and the character of the testamentary
xxx act.
x x x
"Article 800. The law presumes that every person is of sound mind,
x x x in the absence of proof to the contrary.

A The reason why we went there three times is that, the first "The burden of proof that the testator was not of sound mind at
week of June was out first time. We went there to talk to Atty. the time of making his dispositions is on the person who opposes
Sarmiento and Placido Valmonte about the last will and the probate of the will; but if the testator, one month, or less,
testament. After that what they have talked what will be placed before making his will was publicly known to be insane, the person
in the testament, what Atty. Sarmiento said was that he will go who maintains the validity of the will must prove that the testator
th
back on the 15 of June. When we returned on June 15, Atty. made it during a lucid interval."According to Article 799, the three
Sarmiento was not there so we were not able to sign it, the things that the testator must have the ability to know to be
will. That is why, for the third time we went there on August 9 considered of sound mind are as follows: (1) the nature of the
and that was the time we affixed our signature. (tsn, October estate to be disposed of, (2) the proper objects of the testator's
13, 1986, pp. 4-6) bounty, and (3) the character of the testamentary act. Applying this
test to the present case, we find that the appellate court was
Josie Collado: correct in holding that Placido had testamentary capacity at the
time of the execution of his will.
Q When you did not find Atty. Sarmiento in his house on June 15,
1983, what transpired? It must be noted that despite his advanced age, he was still able to
A The wife of Atty. Sarmiento told us that we will be back on identify accurately the kinds of property he owned, the extent of
August 9, 1983. his shares in them and even their locations. As regards the proper
objects of his bounty, it was sufficient that he identified his wife as
Q And on August 9, 1983 did you go back to the house of Atty. sole beneficiary. As we have stated earlier, the omission of some
Sarmiento? relatives from the will did not affect its formal validity. There being
A Yes, Sir. no showing of fraud in its execution, intent in its disposition
becomes irrelevant.
Q For what purpose?
A Our purpose is just to sign the will. Worth reiterating in determining soundness of mind is Alsua-Betts
v. CA,[25] which held thus:
Q Were you able to sign the will you mentioned? "Between the highest degree of soundness of mind and memory


which unquestionably carries with it full testamentary capacity, and AND PASCUALA NARCISO-MANAHAN,

that degrees of mental aberration generally known as insanity or OPPOSITORS-APPELLANTS.

idiocy, there are numberless degrees of mental capacity or
incapacity and while on one hand it has been held that mere
weakness of mind, or partial imbecility from disease of body, or D E C I S I O N
from age, will not render a person incapable of making a will; a
weak or feebleminded person may make a valid will, provided he REYES, J.B.L., J.:
has understanding and memory sufficient to enable him to know
what he is about to do and how or to whom he is disposing of his
property. To constitute a sound and disposing mind, it is not G.R. No. L--27200 is an appeal from the order of the Court of First
necessary that the mind be unbroken or unimpaired or Instance of Manila (in Sp. Proc. 62618) admitting to probate the
unshattered by disease or otherwise. It has been held that alleged last will and testament of the late Gliceria Avelino del
testamentary incapacity does not necessarily require that a person Rosario, dated 29 December 1960, G. R. Nos. L-26615 and
shall actually be insane or of unsound mind."[26]WHEREFORE, the L-26864 are separate petitions for mandamus filed by certain
Petition is DENIED, and the assailed Decision and Resolution of alleged heirs of said decedent seeking (1) to compel the probate
the Court of Appeals are AFFIRMED. Costs against petitioner. court to remove Consuelo S. Gozales-Precilla as special
administratrix of the estate, for conflict of interest, and to appoint a
SO ORDERED. new one in her stead; and (2) to order the Register of Deeds of

Manila to annotate notice of lis pendens in TCT Nos. 31735, 81736
Sandoval-Gutierrez, Corona, Carpio-Morales, and Garcia, JJ., and 81737, registered in the name of Alfonso Precilla, married to
concur. Consuelo Gonzales y Narciso, and said to be properly belonging

to the estate of the deceased Gliceria A. del Rosario.
Insofar as pertinent to the issues involved herein, the facts of
28 Garcia v. Vasquez 32 SCRA 489 these cases may be stated as follows:
143 Phil. 290 Gliceria Avelino del Rosario died unmarried in the City of Manila on
2 September 1965, leaving no descendants, ascendants, brother
or sister. At the time of her death, she was said to be 90 years old,
[ G.R. No. L-26615, April 30, 1970 ] more or less, and possessed of an estate consisting mostly of real
properties.
On 17 September 1965, Consuelo S. Gonzales Vda. de Precilla, a
REV. FATHER LUCIO V. GARCIA, ANTONIO JESUS DE
PRAGA, MARIA NATIVIDAD DE JESUS AND DR. JAIME niece of the deceased, petitioned the Court of First Instance of
ROSARIO, PETITIONERS, VS. HON. CONRADO M. Manila for probate of the alleged last will and testament of Gliceria
VASQUEZ, AS JUDGE OF THE COURT OF FIRST INSTANCE A. del Rosario, executed on 29 December 1960, and for her
OF MANILA, BRANCH V, AND CONSUELO GONZALES appointment as special administrarix of the latter's estate, said to
VDA. DE PRECILLA, RESPONDENTS.
be valued at about P100,000.00, pending the appointment of a

regular administrator thereof.
The petition was opposed separately by several groups of alleged
[G.R. NO. L-26864. APRIL 30, 1970] heirs: (1) Rev. Fr. Lucio V. Garcia, a legatee named in an earlier will

executed by Gliceria A. del Rosario on 9 June 1956; (2) Dr. Jaime
Rosario and children, relatives and legatees in both the 1956 and
REV. FATHER LUCIO V. GARCIA, ANTONIO JESUS DE PRAGA, 1960 wills; Antonio Jesus de Praga and Maria Natividad de Jesus,
MARIA NATIVIDAD DE JESUS AND DR. JAIME ROSARIO,
PETITIONERS, VS. HON. CONRADO M. VASQUEZ, AS JUDGE OF wards of the deceased and legatees in the 1956 and 1960 wills; (3)
THE COURT OF FIRST INSTANCE OF MANILA, BRANCH V; Remedios, Encarnacion and Eduardo, all surnamed Narciso; (4)
REGISTER OF DEEDS OF MANILA AND CONSEULO GONZALES Natividad del Rosario Sarmiento; (5) Maria Narciso; (6) Pascuala
VDA. DE PRECILLA, RESPONDENTS.
Narciso de Manahan; (7) Severina, Rosa and Josefa, surnamed
Narciso, and Vicente and Delfin, surnamed Mauricio, - the latter
five groups of persons all claiming to be relatives of Dona Gliceria
[G.R. NO. 27200. APRIL 30, 1970]
within the fifth civil degree. The oppositions invariably charged
that the instrument executed in 1960 was not intended by the
deceased to be her true will; that the signature of the deceased
TESTATE ESTATE OF GLICERIA ROSARIO, DECEASED,
CONSUELO S. GONZALES VDA. DE PRECILLA, appearing in the will was procured through undue and improper
PETITIONER-ADMINISTRATRIX, VS. SEVERINA NARCISO, ROSA. pressure and influence on the part of the beneficiaries and/or
NARCISO, JOSEFA NARCISO, VICENTE MAURICIO, DELFIN other persons; that the testatrix did not know the object of her
MAURICIO, REMEDIOS NARCISO, ENCARNACION NARCISO,
MARIA NARCISO, EDUARDO NARCISO, FR. LUCIO V. GARCIA, bounty; that the instrument itself reveals irregularities in its
ANTONIO JESUS DE PRAGA, MARIA NATIVIDAD DE JESUS, DR. execution, and that the formalities required by law for such
JAIME ROSARIO, ET AL.; NATIVIDAD DEL ROSARIO SARMIENTO



execution have not been complied with. said certificates of title were cancelled and new certificates (Nos.
Oppositor Lucio V. Garcia, who also presented for probate the 81735, 81736 and 81737) were issued in the name of Alfonso
1956 will of the deceased, joined the group of Dr. Jaime Rosario in Precilla, married to Consuelo S. Gonzales y Narciso.
registering opposition to the appointment of petitioner Consuelo On 25 August 1966, the Court issued an order admitting to
S. Gonzales Vda. de Precilla as special administratrix, on the probate the 1960 will of Gliceria A. del Rosario (Exhibit "D"). In
ground that the latter possesses interest adverse to the estate. declaring the due execution of the will, the probate court took
After the parties were duly heard, the probate court, in its order of note that no evidence had been presented to establish that the
2 October 1965, granted petitioner's prayer and appointed her testatrix was not of sound mind when the will was executed; that
special administratrix of the estate upon a bond for P30,000.00. the fact that she had prepared an earlier will did not prevent her
The order was premised on the fact that petitioner was managing from executing another one thereafter; that the fact that the 1956
the properties belonging to the estate even during the lifetime of will consisted of 12 pages whereas the 1960 testament was
the deceased, and to appoint another person as administrator or contained in one page does not render the latter invalid that the
co-administrator at that stage of the proceeding would only result erasures and alterations in the instrument were insignificant to
in further confusion and difficulties. warrant its rejection, that the inconsistencies in the testimonies of
On 30 September 1965, oppositors Jaime Rosario, et al. filed with the instrumental witnesses which were noted by the oppositors
the probate court an urgent motion to require the Hongkong & are even indicative of their truthfulness. The probate court, also
Shanghai Bank to report all withdrawals made against the funds of considering that petitioner had already shown capacity to
the deceased after 2 September 1965. The court denied this administer the properties of the estate and that from the
motion on 22 October 1965 for being premature, it being unaware provisions of the will she stands as the person most concerned
that such deposit in the name of the deceased existed. [1]
and interested therein, appointed said petitioner regular
On 14 December 1965, the same sets of oppositors, Dr. Jaime administratrix with a bond for P50,000.00. From this order all the
Rosario and children, Antonio Jesus de Praga, Natividad de Jesus oppositors appealed, the case being docketed in this Court as G.
and Fr. Lucio V. Garcia, petitioned the court for the immediate R. No. L-27200.
removal of the special administratrix. It was their claim that the Then, on 13 September 1966, the probate court resolved the
special administratrix and her deceased husband, Alfonso oppositors' motion of 14 December 1965 for the removal of the
Precilla,[2] had caused Gliceria A. del Rosario to execute a simulated then special administratrix, as follows:
and fraudulent deed of absolute sale dated 10 January 1961 "It would seem that the main purpose of the motion to remove the
allegedly conveying unto said spouses for the paltry sum of special administratrix and to appoint another one in her stead, is in
P30,000.00 ownership of 3 parcels of land and the improvements order that an action may be filed against the special administratrix
thereon located in Quiapo and San Nicolas, Manila, with a total for the annulment of the deed of sale executed by the decedent
assessed value of P334,050.00. Oppositors contended that since on January 10, 1961. Under existing documents, the properties
it is the duty of the administrator to protect and conserve the sold pursuant to the said deed of absolute sale no longer forms
properties of the estate, and it may become necessary that an part of the estate. The alleged conflict of interest is accordingly
action for the annulment of the deed of sale and for recovery of not between the estate and third parties, but between different
the aforementioned parcels of land be filed against the special claimants of the same estate. If it is desired by the movants that
administratrix, as wife and heir of Alfonso Precilla, the removal of an action be filed by them to annul the aforesaid deed of absolute
the said administratrix was imperative. sale, it is not necessary that the special administratrix be removed
On 17 December 1965, the same oppositors prayed the court for and that another one be appointed to file such action, Such a
an order directing the Special Administratrix to deposit with the course of action would only produce confusion and difficulties in
Clerk of Court all certificates of title belonging to the estate. It was the settlement of the estate. The movants may file the aforesaid
alleged that on 22 October 1965, or after her appointment, proceedings, preferably in an independent action, to secure the
petitioner Consuelo Gonzales Vda. de Precilla, in her capacity as nullity of the deed of absolute sale even without leave of this
special administratrix of the estate of the deceased Gliceria A. del court."
Rosario, filed with Branch IV of the Court of First Instance of Manila As regard the motion of 17 December 1965 asking for the deposit
a motion for the issuance of new copies of the owner's duplicates in court of the titles in the name of the decedent, the same was
of certain certificates of title in the name of Gliceria del Rosario, also denied, for the reason that if the movants were referring to
supposedly needed by her "in the preparation of the inventory" of the old titles, they could no longer be produced, and if they meant
the properties constituting the estate. The motion having been the new duplicate copies thereof that were issued at the instance
granted, new copies of the owner's duplicates of certificates of the special administratrix, there would be no necessity therefor,
appearing in the name of Gliceria del Rosario (among which were because they were already cancelled and other certificates were
TCT Nos. 66201, 66202 and 66204) were issued on 15 November issued in the name of Alfonso Precilla, This order precipitated the
1965. On 8 December 1965, according to the oppositors, the oppositors' filing in this Court of a petition for mandamus (G. R. No.
same special administratrix presented to the Register of Deeds the L-26615, Rev. Fr. Lucio V. Garcia, et al, vs. Hon. Judge Conrado M.
deed of sale involving the properties covered by TCT Nos. 66201, Vasquez, et al), which was given due course on 6 October 1966.
66202 and 66204 supposedly executed by Gliceria del Rosario on On 15 December 1965, with that motion for removal pending in this
10 January 1961 in favor of Alfonso Precilla, and, in consequence, Court, the oppositors requested the Register of Deeds of Manila to



annotate a notice of lis pendens in the records of TCT Nos. 81736, document,[10] and who took their residence certificates from them a
81736, and 81737 in the name of Alfonso Precilla. And when said few days before the will was signed.[11] Precilla had met the notary
official refused to do so, they applied to the probate court (in Sp. public and witnesses Rosales and Lopez at the door of the
Proc. No. 62618) for an order to compel the Register of Deeds to residence of the old Woman; he ushered them to the room at the
annotate a lis pendens notice in the aforementioned titles, second floor where the signing of the document took place;[12] then
contending that the matter of removal and appointment of the he fetched witness Decena from the latter's haberdashery shop a
administratrix, involving TCT Nos. 81736, 81736, and 81737, was few doors away and brought him to the house of the testatrix.[13]
already before the Supreme Court. Upon denial of this motion on And when the will was actually executed, Precilla was present.[14]
12 November 1 966, oppositors filed another mandamus action, The oppositors-appellants in the present case, however,
this time against the probate court and the Register of Deeds. The challenging the correctness of the probate court's ruling, maintain
case was docketed and given due course in this Court as G. R. No. that on 29 December 1960 the eyesight of Gliceria del Rosario
L-26864. was so poor and defective that she could not have read the
Foremost of the questions to be determined here concerns the provisions of the will, contrary to the testimonies of witnesses
correctness of the order allowing the probate of the 1960 will. Decena, Lopez and Rosales.
The records of the probate proceeding fully establish the fact that On this point, we find the declarations in court of Dr. Jesus V.
the testatrix, Gliceria A. del Rosario, during her lifetime, executed Tamesis very material and illuminating. Said opthalmologist,
two wills: one on 9 June 1956 consisting of 12 pages and written in whose expertise was admitted by both parties, testified, among
Spanish, a language that she knew and spoke, witnessed by other things, that when Doña Gliceria del Rosario saw him for
Messrs. Antonio Cabrera, Jesus Y. Ayala and Valentin Marquez, consultation on 11 March 1960 he found her left eye to have
and acknowledged before notary public Jose Ayala; and another, cataract (opaque lens),[15] and that it was "above normal in
dated 29 December 1960, consisting of 1 page and written in pressure", denoting a possible glaucoma, a disease that leads to
Tagalog, witnessed by Messrs. Vicente Rosales, Francisco Decena, blindness.[16] As to the condition of her right eye, Dr. Tamesis
and Francisco Lopez and acknowledged before notary public declared:
Remigio M. Tividad. Q But is there anything here in the entry appearing in the other
Called to testify on the due execution of the 1960 will, instrumental documents Exhibits 3-B, 3-C and 3-D from which you could inform
witnesses Decena, Lopez and Rosales uniformly declared that the court as to the condition of the vision of the patient as to the
they were individually requested by Alfonso Precilla (the late right eye?"A Under date of August 30, 1960, is the record of
husband of petitioner special administratrix) to witness the refraction, that is setting of glass by myself which showed that the
execution of the last will of Doña Gliceria A. del Rosario; that they right eye with my prescription of glasses had a vision of 20 over
arrived at the house of the old lady at No. 2074 Azcarraga, Manila, 60 (20/60) and for the left eye with her correction 20 over 300
one after the other, in the afternoon of 29 December 1960; that the (20/300)."Q In layman's language, Doctor, what is the significance
testatrix at the time was apparently of clear and sound mind, of that notation that the right had a degree of 20 over 60
although she was being aided by Precilla when she walked; that [3]
(20/60)?"A It meant that that eye at least would be able to
the will, which was already prepared, was first read "silently' by the recognize objects or persons at a minimum distance of twenty
testatrix herself before she signed it;[4] that the three witnesses feet."Q But would that grade enable the patient to read print?"A
thereafter signed the will in the presence of the testatrix and the Apparently that is only a record for distance vision, for distance
notary public and of one another. There is also testimony that sight, not for near." (pages 20-21, t.s.n., hearing of 23 March
after the testatrix and the witnesses to the will acknowledged the 1966 )
instrument to be their voluntary act and deed, the notary public The records also show that although Dr. Tamesis operated on the
asked for their respective residence certificates which were left eye of the decedent at the Lourdes Hospital on 8 August 1960;
handed to him by Alfonso Precilla, clipped together; that after
[5]
as of 23 August 1960, in spite of the glasses, her vision was only
comparing them with the numbers already written on the will, the "counting fingers"[17] at five feet. The cross-examination of the
notary public filled in the blanks in the instrument with the date, 29 doctor further elicited the following responses:
January 1960, before he affixed his signature and seal thereto. [6]
"Q After she was discharged from the hospital you prescribed
They also testified that on that occasion no pressure or influence lenses for her, or glasses?"A After her discharge from the
has been exerted by any person upon the testatrix to execute the hospital, she was coming to my clinic for further examination and
will. then sometime later glasses were prescribed.xxxxx
Of course, the interest and active participation of Alfonso Precilla xxxxx xxxxx xxxxx"Q And the glasses prescribed
In the signing of this 1960 will are evident from the records. The by you enabled her to read, Doctor?"A As far as my record is
will appeared to have been prepared by one who is not concerned, with the glasses for the left eye which I prescribed -
conversant with the spelling of Tagalog words, and it has been the eye which l operated - she could see only forms but not read.
shown that Alfonso Precilla is a Cebuano who speaks Tagalog with That is on the left eye." Q How about the right eye?"A The same,
a Visayan accent. The witnesses to the will, two of whom are
[7]
although the vision on the right eye is even better than the left
fellow Visayans,[8] admitted their relationship or closeness to eye." (pages 34, 35, t.s.n., hearing of 23 March 1966).
Precilla.[9] It was Precilla who instructed them to go to the house of Then, confronted with a medical certificate (Exhibit H) issued by
Gliceria del Rosario on 29 December 1960 to witness an important him on 29 November 1965 certifying that Gliceria del Rosario was


provided with aphakic lenses and "had been under medical to the alleged execution of the testament, Exhibit "D", as appears
supervision up to 1963 with apparently good vision", the doctor from the photographs, Exhibits "E" to "E-13", in no way proves that
had this to say: she was able to read a closely typed page, since the acts shown
"Q When you said that she had apparently good vision you mean do not require vision at close range. It must be remembered that
that she was able to read?"A No, not necessarily, only able to go with the natural lenses removed, her eyes had lost the power of
around, take care of herself, and see. This I can tell you, this adjustment to near vision, the substituted glass lenses being rigid
report was made on pure recollections and I recall she was using and uncontrollable by her. Neither is the signing of checks
her glasses although I recall also that we have to give her (Exhibits "G" to "G-3") by her indicative of ability to see at normal
medicines to improve her vision, some medicines to improve her reading distances. Writing or signing of one's name, when
identification some more.xxxxx xxxxx xxxxx sufficiently practiced, becomes automatic, so that one only to have
xxxxx“Q What about the vision in the right eye, was that a rough indication of the place where the signature is to be affixed
corrected by the glasses?"A Yes, with the new prescription which in order to be able to write it. Indeed, a close examination of the
I issued on 30 August 1960. It is in the clinical record."Q The checks, amplified in the photograph, Exhibit ''C'' et seq., reinforces
vision in the right eye was corrected?"A Yes. That is the vision the contention of oppositors that the alleged testatrix could not
for distant objects." (pages 38, 39, 40, t.s.n. , hearing of 23 March see at normal reading distance: the signatures in the checks are
1966). written far above the printed base lines, and the names of the
The foregoing testimony of the opthalmologist who treated the payees as well as the amounts written do not appear to be in the
deceased and, therefore, has first hand knowledge of the actual handwriting of the alleged testatrix, being in a much firmer arid
condition of her eyesight from August, 1960 up to 1963, fully more fluid hand than hers.
establish the fact that notwithstanding the operation and removal Thus, for all intents and purposes of the rules on probate, the
of the cataract in her left eye and her being fitted with aphakic lens deceased Gliceria del Rosario was, as appellant oppositors
(used by cataract patients), her vision remained mainly for viewing contend, not unlike a blind testator, and the due execution of her
distant objects and not for reading print. Thus, the conclusion is will would have required observance of the provisions of Article
inescapable that with the condition of her eyesight in August, 808 of the Civil Code.
1960, and there is no evidence that it had improved by 29 "ART. 808. If the testator is blind, the will shall be read to him twice;
December 1960, Gliceria del Rosario was incapable of reading, once, by one of the subscribing witnesses, and again, by the
and could not have read the provisions of the will supposedly notary public before whom the will is acknowledged."
signed by her on 29 December 1960. It is worth noting that the The rationale behind the requirement of reading the will to the
instrumental witnesses stated that she read the instrument testator if he is blind or incapable of reading the will himself (as
"silently" (t.s.n., pages 164-165), which is a conclusion and not a when he is illiterate),[18] is to make the provisions thereof known to
fact. him, so that he may be able to object if they are not in accordance
Against the background of defective eyesight of the alleged with his wishes. That the aim of the law is to insure that the
testatrix, the appearance of the will, Exhibit “D”, acquires striking dispositions of the will are properly communicated to and
significance. Upon its face, the testamentary provisions, the understood by the handicapped testator, thus making them truly
attestation clause and acknowledgment were crammed together reflective of his desire, is evidenced by the requirement that the
into a single sheet of paper, so much so that the words had to be will should be read to the latter, not only once but twice, by two
written very close to the top, bottom and two sides of the paper; different persons, and that the witnesses have to act within the
leaving no margin whatsoever; the word "and" had to be written by range of his (the testator's) other senses.[19]
the symbol "&", apparently to save on space. Plainly, the testament In connection with the will here in question, there is nothing in the
was not prepared with any regard for the defective vision of Doña records to show that the above requisites have been complied
Gliceria. Further, typographical errors like "HULINH" for "HIRING" with. Clearly, as already stated, the 1960 will sought to be
(last), “Alfonsa” for "Alfonso", "MERCRDRS" for "MERCEDES", probated suffers from infirmity' that affects its due execution.
"instrumrntal" for "Instrumental", and "acknowIrdged" for We also find merit in the complaint of oppositors Lucio V. Garcia, et
"acknowledge", remained uncorrected, thereby indicating that the al., against the denial by the probate court of their petition for the
execution thereof must have been characterized by haste. It is removal of Consuelo Gonzales Vda, de Precilla as special
difficult to understand that so important a document containing the administratrix of the estate of the deceased Doña Gliceria (Petition,
final, disposition of one's wordly possessions should be embodied G. R. No. L-26615, Annex"B").
in an informal and untidily written instrument; or that the glaring The oppositors' petition was based allegedly on the existence in
spelling errors should have escaped her notice if she had actually the special administratrix of en interest adverse to that of the
retained the ability to read the purported will and had done so. estate. It was their contention that through fraud her husband had
The record is thus convincing that the supposed testatrix could not caused the deceased Gliceria del Rosario to execute a deed of
have physically read or understood the alleged testament, Exhibit sale, dated 10 January 1961, by virtue of which the latter
"D", and that its admission to probate was erroneous and should purportedly conveyed unto said Alfonso D, Precilla, married to
be reversed. Consuelo Gonzales y Narciso, the ownership of 3 parcels of land
That Doña Gliceria should be able to greet her guests on her and the improvements thereon, assessed at P334.050.00, for the
birthday, arrange flowers and attend to kitchen tasks shortly prior sum of P30,000.00.


In denying the petition, the probate court, in its order of 13 lifetime but cleared only after her death. That explanation, which
September 1966 (Annex "F", Petition) reasoned out that since the not only appears plausible but has not been rebutted by the
properties were already sold they no longer form part of the petitioners-oppositors, negates any charge of grave abuse in
estate. The conflict of interest would not be between the estate connection with the issuance of the order here in question.
and third parties, but among the different claimants of said On the matter of lis pendens (G. R. No, L-26864), the provisions of
properties, in which case, according to the court, the participation the Rules of Court are clear: notice of the pendency of an action
of the special administratrix in the action for annulment that may may be recorded in the office of the register of deeds of the
be brought would not be necessary. province in which the property is situated, if the action affects the
The error in this line of reasoning lies in the fact that what was title or the right of possession of (such) real property",[23] In the case
being questioned was precisely the validity of the conveyance or at bar, the pending action which oppositors seek to annotate in the
sale of the properties. In short, if proper, the action for annulment records of TCT Nos. 81735, 81736, and 81737 is the mandamus
would have to be undertaken on behalf of the estate by the proceeding filed in this Court (G.R. No. L-26615). As previously
special administratrix, affecting as it does the property or rights of discussed in this opinion, however, that case is concerned merely
the deceased.[20] For the rule is that only where there is no special with the correctness of the denial by the probate court of the
proceeding for the settlement of the estate of the deceased may motion for the removal of Consuelo Gonzales Vda. de Precilla as
the legal heirs commence an action arising out of a right belonging special adrministratrix of the estate of the late Gliceria del Rosario.
to their ancestor. [21]
In short, the issue in controversy there is simply the fitness or
There is no doubt that to settle the question of the due execution unfitness of said special administratrix to continue holding the
and validity of the deed of sale, an ordinary and separate action trust; it does not involve or affect at all the title to, or possession of,
would have to be instituted, the matter not falling within the the properties covered by said TCT Nos. 81735, 81736 and 81737.
competence of the probate court. Considering the facts then
[22]
Clearly, the pendency of such case (L-26615) is not en action that
before it, i.e., the alleged deed of sale having been executed by can properly be annotated in the record of the titles to the
Gliceria del Rosario on 10 January 1961, when she was already properties.
practically blind; and that the consideration of P30,000.00 seems FOR THE FOREGOING REASONS, the order of the court below
to be unconscionably small for properties with a total assessed allowing to probate the alleged 1960 will of Gliceria A. del Rosario
value of P334,050.00, there was likelihood that a case for is hereby reversed and set aside. The petition in G. R. No. L-26615
annulment might indeed be filed against the estate or heirs of being meritorious, the appealed order is set aside and the court
Alfonso Precilla. And the administratrix, being the widow and heir below is ordered to remove the administratrix, Consuelo Gonzales
of the alleged transferee, cannot be expected to sue herself in an Vda. de Precilla, and appoint one of the heirs intestate of the
action to recover property that may turn out to belong to the deceased Doña Gliceria Avelino del Rosario, as special
estate.22a Not only this, but the conduct of the special administrator for the purpose of instituting action on behalf of her
administratrix in securing new copies of the owner's duplicates of estate to recover the properties allegedly sold by her to the late
TCT Nos. 66201, 66202, and 66204, without the court's Alfonso D. Precilla. And in Case G. R. No. L-26864 petition is
knowledge or authority, and on the pretext that she needed them dismissed. No costs.
in the preparation of the inventory of the estate, when she must Concepcion, C.J., Dizon, Makalintal, Fernando, Teehankee, and
have already known by then that the properties covered therein Villamor, JJ., concur.
were already "conveyed" to her husband by the deceased, being Zaldivar and Ruiz Castro, JJ., took no part.
the latter's successor, and having the contract bind the land Barredo, J., on leave.
through issuance of new titles in her husband's name, cannot but
expose her to the charge of unfitness or unsuitableness to
discharge the trust, justifying her removal from the administration 29 Alvarado v. Gaviola 226 SCRA 348
of the estate. G.R. No. 74695
With respect to the orders of the court a quo denying (1) the
oppositors' motion to require the Hongkong and Shanghai Bank to
report all withdrawals made against the funds of the deceased
after 2 September 1965 and (2) the motion for annotation of a lis
FIRST DIVISION
pendens notice on TCT Nos. 81735, 81736 and 31737, the same are
to be affirmed. [ G.R. No. 74695, September 14, 1993 ]
The probate court pointed out in its order of 22 October 1965
(Annex "H") that it could not have taken action on the complaint IN THE MATTER OF THE PROBATE OF THE LAST WILL
against the alleged withdrawals from the bank deposits of the AND TESTAMENT OF THE DECEASED BRIGIDO
ALVARADO, CESAR ALVARADO, PETITIONER, VS. HON.
deceased, because as of that time the court had not yet been
RAMON G. GAVIOLA, JR., PRESIDING JUSTICE, HON. MA.
apprised that such deposits exist. Furthermore, as explained by
ROSARIO QUETULIO LOSA AND HON. LEONOR INES
the special administratrix in her pleading of 30 October 1965, the LUCIANO, ASSOCIATE JUSTICES, INTERMEDIATE
withdrawals referred to by the oppositors could be those covered APPELLATE COURT, FIRST DIVISION (CIVIL CASES), AND
by checks issued in the name of Gliceria del Rosario during her BAYANI MA. RINO, RESPONDENTS.



June 1983 from which an appeal was made to respondent court.
The main thrust of the appeal was that the deceased was blind

D E C I S I O N within the meaning of the law at the time his "Huling Habilin" and
the codicil attached thereto were executed; that since the reading
required by Art. 808 of the Civil Code was admittedly not complied
BELLOSILLO, J.: with, probate of the deceased's last will and codicil should have
been denied.
On 11 April 1986, the Court of Appeals rendered the decision under
Before us is an appeal from the Decision dated 11 April 1986[1] of review with the following findings: that Brigido Alvarado was not
the First Civil Cases Division of the then Intermediate Appellate blind at the time his last will and codicil were executed; that
Court, now Court of Appeals, which affirmed the Order dated 27 assuming his blindness, the reading requirement of Art. 808 was
June 1983[2] of the Regional Trial Court of Sta. Cruz, Laguna, substantially complied with when both documents were read
admitting to probate the last will and testament[3] with codicil[4] of aloud to the testator with each of the three instrumental witnesses
the late Brigido Alvarado. and the notary public following the reading with their respective
On 5 November 1977, the 79-year old Brigido Alvarado executed a copies of the instruments. The appellate court then concluded that
notarial will entitled "Huling Habilin" wherein he disinherited an although Art. 808 was not followed to the letter, there was
illegitimate son (petitioner) and expressly revoked a previously substantial compliance since its purpose of making known to the
executed holographic will at the time awaiting probate before testator the contents of the drafted will was served.
Branch of the Regional Trial Court of Sta. Cruz, Laguna. The issues now before us can be stated thus: Was Brigido
As testified to by the three instrumental witnesses, the notary Alvarado blind for purposes of Art. 808 at the time his "Huling
public and by private respondent who were present at the Habilin" and its codicil were executed? If so, was the
execution, the testator did not read the final draft of the will double-reading requirement of said article complied with?
himself. Instead, private respondent, as the lawyer who drafted the Regarding the first issue, there is no dispute on the following facts:
eight-paged document, read the same aloud in the presence of Brigido Alvarado was not totally blind at the time the will and
the testator, the three instrumental witnesses and the notary codicil were executed. However, his vision on both eyes was only
public. The latter four followed the reading with their own of "counting fingers at three (3) feet" by reason of the glaucoma
respective copies previously furnished them. which he had been suffering from for several years and even prior
Meanwhile, Brigido's holographic will was subsequently admitted to his first consultation with an eye specialist on 14 December 1977.
to probate on 9 December 1977. On the 29th day of the same The point of dispute is whether the foregoing circumstances would
month, a codicil entitled "Kasulatan ng Pagbabago sa Ilang qualify Brigido as a "blind" testator under Art. 808 which reads:
Pagpapasiya na Nasasaad sa Huling Habilin na May Petsa "Art. 808. If the testator is blind, the will shall be read to him twice;
Nobiembre 5, 1977 ni Brigido Alvarado" was executed changing once, by one of the subscribing witnesses, and again, by the
some dispositions in the notarial will to generate cash for the notary public before whom the will is acknowledged.”
testator's eye operation. Brigido was then suffering from Petitioner contends that although his father was not totally blind
glaucoma. But the disinheritance and revocatory clauses were when the will and codicil were executed, he can be so considered
unchanged. As in the case of the notarial will, the testator did not within the scope of the term as it is used in Art. 808. To support his
personally read the final draft of the codicil. Instead, it was private stand, petitioner presented before the trial court a medical
respondent who read it aloud in his presence and in the presence certificate issued by Dr. Salvador R. Salceda, Director of the
of the three instrumental witnesses (same as those of the notarial Institute of Opthalmology (Philippine Eye Research institute),[6] the
will) and the notary public who followed the reading using their contents of which were interpreted in layman's terms by Dr.
own copies. Ruperto Roasa, whose expertise was admitted by private
A petition for the probate of the notarial will and codicil was filed respondent.[7] Dr. Roasa explained that although the testator could
upon the testator's death on 3 January 1979 by private respondent visualize fingers at three (3) feet, he could no longer read either
as executor with the Court of First Instance, now Regional Trial printed or handwritten matters as of 14 December 1977, the day of
Court, of Siniloan, Laguna.[5] Petitioner, in turn, filed an Opposition his first consultation.[8]
on the following grounds: that the will sought to be probated was On the other hand, the Court of Appeals, contrary to the medical
not executed and attested as required by law; that the testator was testimony, held that the testator could still read on the day the will
insane or otherwise mentally incapacitated to make a will at the and the codicil were executed but chose not to do so because of
time of its execution due to senility and old age; that the will was "poor eyesight."[9] Since the testator was still capable of reading at
executed under duress, or influence of fear or threats; that it was that time, the court a quo concluded that Art. 808 need not be
procured by undue and improper pressure and influence on the complied with.
part of the beneficiary who stands to get the lion's share of the We agree with petitioner in this respect.
testator's estate; and lastly, that the signature of the testator was Regardless of respondent's staunch contention that the testator
procured by fraud or trick. was still capable of reading at the time his will and codicil were
When the oppositor (petitioner) failed to substantiate the grounds prepared, the fact remains and this was testified to by his
relied upon in the Opposition, a Probate Order was issued on 27 witnesses, that Brigido did not do so because of his “poor,”[10]


“defective,”[11] or “blurred”[12] vision making it necessary for private acknowledgement take place. There is no evidence, and petitioner
respondent to do the actual reading for him. does not so allege, that the contents of the will and codicil were
The following pronouncement in Garcia vs. Vasquez[13] provides an not sufficiently made known and communicated to the testator. On
insight into the scope of the term "blindness" as used in Art. 808, the contrary, with respect to the “Huling Habilin,” the day of the
to wit: execution was not the first time that Brigido had affirmed the truth
"The rationale behind the requirement of reading the will to the and authenticity of the contents of the draft. The uncontradicted
testator if he is blind or incapable of reading the will himself (as testimony of Atty. Rino is that Brigido Alvarado already
when he is illiterate), is to make the provisions thereof known to acknowledged that the will was drafted in accordance with his
him, so that he may be able to object if they are not in accordance expressed wishes even prior to 5 November 1977 when Atty. Rino
with his wishes x x x x" went to the testator's residence precisely for the purpose of
Clear from the foregoing is that Art. 808 applies not only to blind securing his conformity to the draft.[15]
testators but also to those who, for one reason or another, are Moreover, it was not only Atty. Rino who read the documents on 5
"incapable of reading the(ir) will(s)." Since Brigido Alvarado was November and 29 December 1977. The notary public and the three
incapable of reading the final drafts of his will and codicil on the instrumental witnesses likewise read the will and codicil, albeit
separate occasions of their execution due to his "poor," "defective," silently. Afterwards, Atty. Nonia de la Pena (the notary public) and
or "blurred" vision, there can be no other course for us but to Dr. Crescente O. Evidente (one of the three instrumental witnesses
conclude that Brigido Alvarado comes within the scope of the term and the testator's physician) asked the testator whether the
"blind" as it is used in Art. 808. Unless the contents were read to contents of the documents were of his own free will. Brigido
him, he had no way of ascertaining whether or not the lawyer who answered in the affirmative.[16] With four persons following the
drafted the will and codicil did so conformably with his instructions. reading word for word with their own copies, it can be safely
Hence, to consider his will as validly executed and entitled to concluded that the testator was reasonably assured that what was
probate, it is essential that we ascertain whether Art. 808 had read to him (those which he affirmed were in accordance with his
been complied with. instructions), were the terms actually appearing on the typewritten
Article 808 requires that in case of testators like Brigido Alvarado, documents. This is especially true when we consider the fact that
the will shall be read twice; once, by one of the instrumental the three instrumental witnesses were persons known to the
witnesses and, again, by the notary public before whom the will testator, one being his physician (Dr. Evidente) and another
was acknowledged. The purpose is to make known to the (Potenciano C. Ranieses) being known to him since childhood.
incapacitated testator the contents of the document before The spirit behind the law was served though the letter was not.
signing and to give him an opportunity to object if anything is Although there should be strict compliance with the substantial
contrary to his instructions. requirements of the law in order to insure the authenticity of the
That Art. 808 was not followed strictly is beyond cavil. Instead of will, the formal imperfections should be brushed aside when they
the notary public and an instrumental witness, it was the lawyer do not affect its purpose and which, when taken into account, may
(private respondent) who drafted the eight-paged will and the only defeat the testator's will.[17]
five-paged codicil who read the same aloud to the testator, and As a final word to convince petitioner of the propriety of the trial
read them only once, not twice as Art. 808 requires. court's Probate Order and its affirmance by the Court of Appeals,
Private respondent however insists that there was substantial we quote the following pronouncement in Abangan v. Abangan,[18]
compliance and that the single reading suffices for purposes of the to wit:
law. On the other hand, petitioner maintains that the only valid "The object of the solemnities surrounding the execution of wills is
compliance is a strict compliance or compliance to the letter and to close the door against bad faith and fraud, to avoid the
since it is admitted that neither the notary public nor an substitution of wills and testaments and to guaranty their truth and
instrumental witness read the contents of the will and codicil to authenticity. Therefore the laws on the subject should be
Brigido, probate of the latter's will and codicil should have been interpreted in such a way as to attain these primordial ends. But,
disallowed. on the other hand, also one must not lose sight of the fact that it is
We sustain private respondent's stand and necessarily, the petition not the object of the law to restrain and curtail the exercise of the
must be denied. right to make a will. So when an interpretation already given
This Court has held in a number of occasions that substantial assures such ends, any other interpretation whatsoever, that adds
compliance is acceptable where the purpose of the law has been nothing but demands more requisites entirely unnecessary,
satisfied, the reason being that the solemnities surrounding the useless and frustrative of the testator's will, must be disregarded"
execution of wills are intended to protect the testator from all (underscoring supplied).
kinds of fraud and trickery but are never intended to be so rigid Brigido Alvarado had expressed his last wishes in clear and
and inflexible as to destroy the testamentary privilege.[14] unmistakable terms in his "Huling Habilin" and the codicil attached
In the case at bar, private respondent read the testator's will and thereto. We are unwilling to cast these aside for the mere reason
codicil aloud in the presence of the testator, his three instrumental that a legal requirement intended for his protection was not
witnesses, and the notary public. Prior and subsequent thereto, followed strictly when such compliance had been rendered
the testator affirmed, upon being asked, that the contents read unnecessary by the fact that the purpose of the law, i.e., to make
corresponded with his instructions. Only then did the signing and known to the incapacitated testator the contents of the draft of his



will, had already been accomplished. To reiterate, substantial

compliance suffices where the purpose has been served. "1. Declaro que durante mi matrimonio con mi esposa la hoy Isabel
WHEREFORE, the petition is DENIED and the assailed Decision of Herreros no tuvimos hijos;
respondent Court of Appeals dated 11 April 1986 is AFFIRMED.
Considering the length of time that this case has remained "2. Declaro que tengo propiedades situadas en Manila y en la
pending, this decision is immediately executory. Costs against Provincia de Pampanga;
petitioner.
SO ORDERED. "3. Doy y adjudico a mi querida esposa Isabel Herreros todos mis
bienes ya que muebles e inmuebles situados en Manila y en
Cruz, (Chairman), Griño-Aquino, Davide, Jr., and Quiason, JJ., Pampanga, bajo la condicion de que cuando esta muera y si
concur. hayan bienes remanentes heredadas por ella de mi, que dichos
bienes remanentes se adjudicaran a Don Carlos Worrel.

30 Gil v. Murciano (1951) 88 Phil 260 "4. Nombro como albacea de mis bienes despues de mi
88 Phil. 260 fallecimiento al Dr. Galicano Coronel a quien tengo absoluta
confianza, con relevacion de fianza;

"En testimonio de todo lo cual, firmo este mi testamento y en el
margen izquierdo de cada una de sus dos paginas utiles con la

clausula de atestiguamiento en presencia de los testigos, quienes
[ G. R. No. L-3362, March 01, 1951 ] a su vez firmaron cada una de dichas paginas y la clausula de
atestiguamiento en mi presencia cada uno de ellos con la de los
TESTATE ESTATE OF CARLOS GIL, DECEASED. ISABEL demas, hoy en Porac, Pampanga, I. F., el dia 27 de Mayo de mil
HERREROS VDA. DE GIL, ADMINISTRATRIX AND nove-cientos treinta y nueve.
APPELLEE, VS. PILAR GIL VDA. DE MURCTANO,

OPPOSITOR AND APPELLANT.
"CARLOS GIL
D E C I S I O N
"Testificacion:

JUGO, J.:
"Segunda Pagina (2)

The Court of First Instance of Manila admitted to probate the
"Nosotros los que suscribimos, todos mayores de edad,
alleged will and testament of the deceased Carlos Gil. The
certificamos: que el testamento que precede este escrito en la
oppositor Pilar Gil Vda. de Murciano appealed to this Court, raising
lengua castellana que conoce la testadora, compuesto de dos
only questions of law.
paginas utiles con la clausula de atestiguamiento paginadas

correlativamente en Ietras y numeros en la parte superior de la
Her counsel assigns the two following alleged errors:
casilla, asi como todas las hojas del mismo, en nuestra presencia y

que cada uno de nosotros hemos atestiguado y firmado dicho
"Primer Error.—El Juzgado inferior erro al dejar de declarar que el
documento y todas las hojas del mismo en presencia del testador
alegado testamento de Carlos Gil no ha sido otorgado de acuerdo
y en la de cada uno de nosotros.
con la ley.

"(Fdo.) Alfredo T. Rivera
"Segundo Error.—Erro finalmente al legalizar el referido

testamento."
"(Fdo.) Ramon Mendiola
The alleged will read as follows:

"(Fdo.) Mariano Omana"
"Primera Pagina (1)

Regarding the correctness and accuracy of the above-copied
"EN EL NOMBRE DE DIOS, AMEN.
alleged will, the court below said:

"* * * The only copy available is a printed form contained in the
"Yo, Carlos Gil, de 66 anos de edad, residente de Porac,
record appeal in case G. R. No. L-254, entitled 'Testate Estate of
Pampanga, I. F., hallandome sano y en pleno goce de mis
Carlos Gil; Isabel Herreros Vda. de Gil, petitioner and appellant vs.
facultades intelectuales, libre y expontaneamente, sin violencia,
Roberto Toledo y Gil, oppositor and appellee.' Both parties are
coaccion, dolo o influencia ilegal de persona extrana, otorgo y
agreed that this is a true and correct copy of the will." (P. 10, Record
ordeno este mi testamento y ultima voluntad en castellano, idioma
on Appeal).
que poseo y entiendo, de la manera siguiente:
The appeal being only on questions of law the above finding of


the court below cannot be disputed. The conclusions of law it sufficient.
reached by said court are based on it. Moreover, the finding is
correctly based on the evidence of record. The parties agreed that It is said that the rules of statutory construction are applicable to
said copy is true and correct. If it were otherwise, they would not documents and wills. This is true, but said rules apply to the body
have so agreed, considering that the defect is of an essential of the will, containing the testamentary provisions, but not to the
character and is fatal to the validity of the attestation clause. attestation clause, which must be so clear that it should not require
any construction.
It will be noted that the attestation clause above quoted does not
state that the alleged testator signed the will. It declares only that The parties have cited pro and con several decisions of the
it was signed by the witnesses. This is a fatal defect, for the Supreme Court, some of which are said to be rather strict and
precise purpose of the attestation clause is to certify that the others liberal, in the interpretation of section 618 of Act No. 190, as
testator signed the will, this being the most essential element of amended by Act No. 2645.
the clause. Without it there is no attestation at all. It is said that the
court may correct a mere clerical error. This is too much of a In the case of Gumban vs. Gorecho (50 Phil., 30, 31), the court had
clerical error for it affects the very essence of the clause. Alleged the following to say:
errors may be overlooked or corrected only in matters of form
which do not affect the substance of the statement. "1. WILLS; ALLOWANCE OR DISALLOWANCE; SECTIONS 618 and
634 of the Code op Civil Procedure Construed.—The right to
It is claimed that the correction may be made by inference. If we dispose of property by will is governed entirely by statute. The law
cure a deficiency by means of inferences, when are we going to is here found in section 618 of the Code of Civil Procedure, as
stop making inferences to supply fatal deficiencies in wills? Where amended by Act No. 2645, and in section 634 of the same Code,
are we to draw the line? Following that procedure we would be as unamended. The law not alone carefully makes use of the
making interpolations by inferences, implications, and even by imperative, but cautiously goes further and makes use of the
internal circumstantial evidence. This would be done in the face of negative, to enforce legislative intention.
the clear, unequivocal, language of the statute as to how the
attestation clause should be made. It is to be supposed that the "2. ID.; ID.; ID.; ATTESTATION.—The Philippine authorities relating
drafter of the alleged will read the clear words of the statute when to the attestation clause to wills reviewed. The cases of Safio vs.
he prepared it. For the court to supply alleged deficiencies would Quintana ([1925], 48 Phil., 506), and Nayve vs. Mojal and Aguilar
be against the evident policy of the law. Section 618 of Act No. ([1924], 47 Phil., 152), particularly compared. The decision in In re
190, before it was amended, contained the following provision: Will of Quintana, supra, adopted and reaffirmed. The decision in
Nayve vs. Mojal and Aguilar, supra, modified.
"* * * But the absence of such form of attestation shall not render
the will invalid if it is proven that the will was in fact signed and "3. ID.; ID.; ID.; ID.—The portion of section 618 of the Code of Civil
attested as in this section provided.' Procedure, as amended, which provides that "The attestation
However, Act No. 2645 of the Philippine Legislature, passed on clause shall state the number of sheets or pages used, upon which
July 1, 1916, besides increasing the contents of the attestation the will is written, and the fact that the testator signed the will and
clause, entirely suppressed the above-quoted provision. This every page thereof, or caused some other person to write his
would show that the purpose of the amending act was to surround name, under his express direction, in the presence of three
the execution of a will with greater guarantees and solemnities. witnesses, and the latter witnessed and signed the will and all
Could we, in view of this, hold that the court can cure alleged pages thereof in the presence of the testator and of each other"
deficiencies by inferences, implications, and internal circumstantial applied and enforced.
evidence? Even in ordinary cases the law requires certain
requisites for the conclusiveness of circumstantial evidence. "4.ID.; ID.; ID.; ID.—An attestation clause which does not recite that
the witnesses signed the will and each and every page thereof on
It is contended that the deficiency in the attestation clause is cured the left margin in the presence of the testator is defective, and
by the last paragraph of the body of the alleged will, which we such a defect annuls the will. (Safio vs. Quintana,supra.)"
have quoted above. At first glance, it is queer that the alleged In the subsequent case of Quinto vs. Morata (54 Phil., 481, 482),
testator should have made an attestation clause, which is the Judge Manuel V. Moran, now Chief Justice of the Supreme Court,
function of the witnesses. But the important point is that he attests in his decision made the following pronouncement:
or certifies his own signature, or, to be more accurate, his "* * * En la clausula de atestiguamiento del testamento en
signature certifies itself. It is evident that one cannot certify his cuesti6n, se hace constar que los testadores firmaron el
own signature, for it does not increase the evidence of its testamento en presencia de los tres testigos instrumental y que
authenticity. It would be like lifting one's self by his own estos firmaron el testamento los unos en presencia de los otros,
bootstraps. Consequently, the last paragraph of the will cannot pero no se hace constar que dichos testigos firmaron el
cure in any way the fatal defect of the attestation clause of the testamento en presencia de los testadores, ni que estos y
witnesses. Adding a zero to an insufficient amount does not make aquellos firmaron todas y cada una de las paginas del testamento



los primeros en presencia de los se-gundos y vice-versa.

In the case of Grey vs. Fabie[*] (40 Off. Gaz., 1st Supplement, 196,
"En su virtud, se deniega la solicitud en la que se pide la No. 3, May 23, 1939), the will was objected to on the ground that,
legalizacion del alegado testamento Exhibit A de Gregorio Pueblo although the attestation clause stated that "each of the pages of
y Carmen Quinto, y se declara que Gregorio Pueblo murio which the said will is composed" was signed by the testatrix at the
intestado." left margin and at the foot of the fifth page, it did not state that the
The Supreme Court fully affirmed the decision, laying down the signature was made in the presence of the witnesses. It was held,
following doctrine: however, that said deficiency was cured by the phrase "as well as
"1. WILLS; ATTESTATION CLAUSE; EVIDENCE TO SUPPLY by each of us in the presence of the testatrix." The words "as well
DEFECTS OF.— The attestation clause must be made in strict as" indicate that the testatrix signed also in the presence of the
conformity with the requirements of section 618 of Act No. 190, as witnesses, for the phrase "as well as" in this case is equivalent to
amended. Where said clause fails to show on its face a full "also." The language is clear and, unlike the attestation clause in
compliance with those requirements, the defect constitutes the present case, does not necessitate any correction. In the body
sufficient ground for the disallowance of the will. (Sano vs. of the will the testatrix stated that she signed in the presence of
Quintana, 48 Phil., 506; Gumban vs. Gorecho, 50 Phil., 30). each and all of the three witnesses. This was considered as a
Evidence aliunde should not be admitted to establish facts not corroboration, but it was unnecessary.
appearing on the attestation clause, and where said evidence has
been admitted it should not be given the effect intended. (Uy In the case of Leynez vs. Leynez (40 Off. Gaz., 3rd Supplement, 51,
Coque vs. Navas L. Sioca, 43 Phil., 405, 409.) 52, No. 7, October 18, 1939; 68 Phil., 745), the attestation clause
reads as follows:
"2.ID.; ID.; INTERPRETATION, OF SECTION 618 OF ACT NO. 190, "Suscrito y declarado por el testador Valerio Leynez, como su
AS AMENDED.—Section 618 of Act No. 190, as amended, should ultima voluntad y testamento en presencia de todos y cada uno de
be given a strict interpretation in order to give effect to the nosotros, y a ruego de dicho testador, firmamos el presente cada
intention of the Legislature. Statutes prescribing formalities to be uno en presencia de los otros, o de los demas y de la del mismo
observed in the execution of wills are very strictly construed. testador, Valerio Leynez. El testamento consta de dos (2) paginas
Courts cannot supply the defective execution of will. (40 Cyc, p. sola-mente."
1079; Uy Coque vs. Navas L. Sioca, supra.) The objection was that the attestation clause did not state that the
It is true that in subsequent decisions, the court has somewhat testator and the witnesses signed each and every page of the will.
relaxed the doctrine of the Gumban vs. Gorecho case, supra, but This fact, however, appears in the will itself. It is clear, therefore,
not to the extent of validating an attestation clause similar to that that in that case the will complied with all the requisites for its due
involved herein. execution. In the instant case, essential words were omitted.

In the case of Aldaba vs. Roque (43 Phil., 378), the testatrix signed In the case of Alcala vs. De Villa [1] (40 Off. Gaz., 14th Supplement,
the attestation clause which was complete, and it was also signed 131, 134-135, No. 23, April 18, 1939), the attestation clause reads as
by the two attesting witnesses. For this reason, the court said: follows:
"In reality, it appears that it is the testatrix who makes the "Hacemos constar que en la fecha y pueblo arriba mencionados
declaration about the points contained in the above described otorgo el Sr. Emiliano Alcala su ultima voluntad o testamento
paragraph; however, as the witnesses, together with the testatrix, com-puesto de cuatro paginas incluida ya esta clausula de
have signed the said declaration, we are of the opinion and so atestigua-miento. Que estabamos presentes en el momento de
hold that the words above quoted of the testament constitute a leer y ratificar el que el testamento arriba mencionado es su ultima
sufficient compliance with the requirements of section 1 of Act No. voluntad o testamento compuesto de cuatro paginas en papel de
2645 which provides that: * * *" (p. 381, supra.) maquinilla. Que igualmente estabamos presentes cuando el firmo
The attestation clause involved herein is very different. In the case este documento al pie del mismo y en el margen izquierdo de
of Dichoso de Ticson vs. De Gorostiza (57 Phil., 437), it was held cada pagina del testador tambien en presencia suya y de cada
that: uno da nosotros en cada pagina y en el margen izquierdo de esta
"An attestation clause to a will, copied from a form book and escritura o testamento. En su testimonio firmamos abajo en
reading: 'We, the undersigned attesting witnesses, whose presencia del testador y de cada uno de nosotros."
residences are stated opposite our respective names, do hereby The above attestation clause is substantially perfect. The only
certify that the testatrix, whose name is signed hereinabove, has clerical error is that it says "testador" instead of "testamento" in the
publish unto us the foregoing will consisting of two pages as her phrase "cada pagina del testador." The word "tambien" renders
Last Will and Testament, and has signed the same in our presence, unnecessary the use of the verb "firmamos."
and in witness whereof we have each signed the same and each
page thereof in the presence of said testatrix and in the presence In the case of Mendoza vs. Pilapil [2] (40 Off. Gaz., 1855, No. 9, June
of each other,' held not to be fatally defective and to conform to 27, 1941), the attestation clause did not state the number of pages
the law." of the will. However, it was held that this deficiency was cured by
This is very different from the attestation clause in the case at bar. the will itself, which stated that it consisted of three pages and in


fact it had three pages. by giving validity to wills made without any form, * * *' or, in
derogation of testator's wishes, fraudulently imposing spurious
In the case of Rallos vs. Rallos (44 Off. Gaz., 4938, 4940, No. 12, wills on his estate. Churchill's Estate, 260 Pac. 94, 101, 103 Atl. 533.
October 23, 1947), decided by the Court of Appeals, the
attestation clause (translated in Spanish) reads as follows: "It has always been the policy of this court to sustain a will if it is
"Nosotros, los testigos, certificamos que este que hemo3 firmado legally possible to do so, but we cannot break down the legislative
es el testamento y ultima voluntad, que se ha redactado en cuatro barriers protecting a man's property after death, even if a situation
paginas, de Numeriano Eallos, quien despues de leer y de leerle may be presented apparently meritorious." (In Re: Maginn, 30
el mencionado testamento, y despues de que ella dio su A.L.R., pp. 419, 420.)
conformidad, firtno y marco con su dedo pulgar derecho en In view of the foregoing, the decision appealed from is reversed,
nuestra presencia y en presencia de cada uno de nosotros, que denying the probate of the alleged will and declaring intestate the
asimismo cada uno de nosotros, loa testigos, firmamos en estate of the deceased Carlos Gil. With costs against the
presencia de la testadora y en presencia de cada uno de appellee. It is so ordered.
nosotros."
It will be noticed that the only thing omitted is the statement as to Moran, C. J., Pablo, Bengzon, Padilla and Reyes, JJ., concur.
the signing of the testatrix and the witnesses of each and every
page of the will, but the omission is cured by the fact that, their
signatures appear on every page. This attestation clause is 31 Caneda v. CA (1993) 222 SCRA 781
different from that involved in the present case. G.R. No. 103554

There is no reason why wills should not be executed by complying
substantially with the clear requisites of the law, leaving it to the
courts to supply essential elements. The right to dispose of
SECOND DIVISION
property by will is not natural but statutory, and statutory
requirements should be satisfied. [ G.R. No. 103554, May 28, 1993 ]
"The right to make a testamentary disposition of one's property is
purely of statutory creation, and is available only upon a TEODORO CANEDA, LORENZA CANEDA, TERESA
compliance with the requirements of the statute. The formalities CANEDA, JUAN CABALLERO, AUREA CABALLERO, OSCAR
LAROSA, HELEN CABALLERO, SANTOS CABALLERO,
which the Legislature has prescribed for the execution of a will are
PABLO CABALLERO, VICTOR RAGA, MAURICIA RAGA,
essential to its validity, and cannot be disregarded. The mode so
QUIRICA RAGA, RUPERTO ABAPO, REPRESENTED HEREIN
prescribed is the measure for the exercise of the right, and the heir BY HIS ATTORNEY-IN-FACT, ARMSTICIA* ABAPO
can be deprived of his inheritance only by a compliance with this VELANO, AND CONSESO CANEDA, REPRESENTED HEREIN
mode. For the purpose of determining whether a will has been BY HIS HEIRS, JESUS CANEDA, NATIVIDAD CANEDA AND
properly executed, the intention of the testator in executing it is ARTURO CANEDA, PETITIONERS, VS. HON. COURT OF
APPEALS AND WILLIAM CABRERA, AS SPECIAL
entitled to no consideration. For that purpose only the intention of
ADMINISTRATOR OF THE ESTATE OF MATEO
the Legislature, as expressed in the language of the statute, can CABALLERO, RESPONDENTS.
be considered by the court, and whether the will as presented,
shows a compliance with the statute." Estate of Walker, 110 Cal.,

387, 42 Pac, 815, 30 L.R.A., 460, 52 Am. St. Rep. 104. In re
D E C I S I O N
Seaman's Estate, 80 Pac, 700, 701.)

"In interpreting the legislature's thought, courts have rigidly REGALADO, J.:
opposed any exception tending to weaken the basic principle
underlying the law, the chief purpose of which is to see that the
testator's wishes are observed. It is possible, in some or many Presented for resolution by this Court in the present petition for
cases, a decedent may have thought he had made a will, but the review on certiorari is the issue of whether or not the attestation
statute says he had not. The question is not one of his intention, clause contained in the last will and testament of the late Mateo
but of what he actually did, or * * * failed to do * * *. It may happen* Caballero complies with the requirements of Article 805, in
* * that * * * wills * * * truly expressing the intentions of the relation to Article 809, of the Civil Code.
testators are made without observations of the required forms; The records show that on December 5, 1978, Mateo Caballero, a
and whenever that happens, the genuine intention is frustrated. * * widower without any children and already in the twilight years of
* The legislature * * * has thought of it best and has therefore his life, executed a last will and testament at his residence in
determined, to run the risk of frustrating (that intention, * * * in Talisay, Cebu before three attesting witnesses, namely, Cipriano
preference to the risk of giving effect to or facilitating the Labuca, Gregorio Cabando and Flaviano Toregosa. The said
formation of spurious wills, by the absence of forms. * * * The evil testator was duly assisted by his lawyer, Atty. Emilio Lumontad, and
of defeating the intention * * * is less than the evil probably to arise a notary public, Atty. Filoteo Manigos, in the preparation of that last


will.[1] It was declared therein, among other things, that the testator Caballero, on the ratiocination that:
was leaving by way of legacies and devises his real and personal "x x x The self-serving testimony of the two witnesses of the
properties to Presentacion Gaviola, Angel Abatayo, Rogelio oppositors cannot overcome the positive testimonies of Atty.
Abatayo, Isabelito Abatayo, Benoni G. Cabrera and Marcosa Filoteo Manigos and Cipriano Labuca who clearly told the Court
Alcantara, all of whom do not appear to be related to the testator. [2]
that indeed Mateo Caballero executed this Last Will and Testament
Four months later, or on April 4, 1979, Mateo Caballero himself now marked Exhibit ‘C’ on December 5, 1978. Moreover, the fact
filed a petition docketed as Special Proceeding No. 3899-R before that it was Mateo Caballero who initiated the probate of his Will
Branch II of the then Court of First Instance of Cebu seeking the during his lifetime when he caused the filing of the original petition
probate of his last will and testament. The probate court set the now marked Exhibit 'D' clearly underscores the fact that this was
petition for hearing on August 20, 1979 but the same and indeed his Last Will. At the start, counsel for the oppositors
subsequent scheduled hearings were postponed for one reason manifested that he would want the signature of Mateo Caballero in
or another. On May 29, 1980, the testator passed away before his Exhibit ‘C' examined by a handwriting expert of the NBI but it
petition could finally be heard by the probate court. On February
[3]
would seem that despite their avowal and intention for the
25, 1981, Benoni Cabrera, one of the legatees named in the will, examination of this signature of Mateo Caballero in Exhibit ‘C',
sought his appointment as special administrator of the testator's nothing came out of it because they abandoned the idea and
estate, the estimated value of which was P24,000.00, and he was instead presented Aurea Caballero and Helen Caballero Campo
so appointed by the probate court in its order of March 6, 1981. [4]
as witnesses for the oppositors."All told, it is the finding of this
Thereafter, herein petitioners, claiming to be nephews and nieces Court that Exhibit ‘C' is the Last Will and Testament of Mateo
of the testator, instituted a second petition, entitled “In the Matter Caballero and that it was executed in accordance with all the
of the Intestate Estate of Mateo Caballero" and docketed as requisites of law."[9]
Special Proceeding No. 3965-R, before Branch IX of the aforesaid Undaunted by said judgment of the probate court, petitioners
Court of First Instance of Cebu. On October 18, 1982, herein elevated the case to the Court of Appeals in CA-G.R. CV No.
petitioners had their said petition for intestate proceedings 19669. They asserted therein that the will in question is null and
consolidated with Special Proceeding No. 3899-R in Branch II of void for the reason that its attestation clause is fatally defective
the Court of First Instance of Cebu and opposed thereat the since it fails to specifically state that the instrumental witnesses to
probate of the testator's will and the appointment of a special the will witnessed the testator signing the will in their presence
administrator for his estate.[5] and that they also signed the will and all the pages thereof in the
Benoni Cabrera died on February 8, 1982 hence the probate court, presence of the testator and of one another.
now known as Branch XV of the Regional Trial Court of Cebu, On October 15, 1991, respondent court promulgated its decision[10]
appointed William Cabrera as special administrator on June 21, affirming that of the trial court, and ruling that the attestation
1983. Thereafter, on July 20, 1983, it issued an order for the return clause in the last will of Mateo Caballero substantially complies
of the records of Special Proceeding No. 3965-R to the archives with Article 805 of the Civil Code, thus:
since the testate proceedings for the probate of the will had to be "The question therefore is whether the attestation clause in
heard and resolved first. On March 26, 1984 the case was reraffled question may be considered as having substantially complied with
and eventually assigned to Branch XII of the Regional Trial Court of the requirements of Art. 805 of the Civil Code. What appears in
Cebu where it remained until the conclusion of the probate the attestation clause which the oppositors claim to be defective is
proceedings. [6]
‘we do certify that the testament was read by him and the testator,
In the course of the hearing in Special Proceeding No. 3899-R, Mateo Caballero, has published unto us the foregoing will
herein petitioners appeared as oppositors and objected to the consisting of THREE PAGES, including the acknowledgment, each
allowance of the testator's will on the ground that on the alleged page numbered correlatively in letters on the upper part of each
date of its execution, the testator was already in a poor state of page, as his Last Will and Testament, and he has signed the same
health such that he could not have possibly executed the same. and every page thereof, on the spaces provided for his signature
Petitioners likewise reiterated the issue as to the genuineness of and on the left hand margin in the presence of the said testator
the signature of the testator therein. [7]
and in the presence of each and all of us’ (underlining supplied)."To
On the other hand, one of the attesting witnesses, Cipriano our thinking, this is sufficient compliance and no evidence need be
Labuca, and the notary public, Atty. Filoteo Manigos, testified that presented to indicate the meaning that the said will was signed by
the testator executed the will in question in their presence while the testator and by them (the witnesses) in the presence of all of
he was of sound and disposing mind and that, contrary to the them and of one another. Or as the language of the law would
assertions of the oppositors, Mateo Caballero was in good health have it that the testator signed the will ‘in the presence of the
and was not unduly influenced in any way in the execution of his instrumental witnesses, and that the latter witnessed and signed
will. Labuca also testified that he and the other witnesses attested the will and all the pages thereof in the presence of the testator
and signed the will in the presence of the testator and of each and of one another.’ If not completely or ideally perfect in
other. The other two attesting witnesses were not presented in the accordance with the wordings of Art. 805 but (sic) the phrase as
probate hearing as they had died by then.[8] formulated is in substantial compliance with the requirement of the
On April 5, 1988, the probate court rendered a decision declaring law. "[11]
the will in question as the last will and testament of the late Mateo Petitioners moved for the reconsideration of said ruling of



respondent court, but the same was denied in the latter's Furthermore, the language used in the attestation clause likewise
resolution of January 14, 1992,[12] hence this appeal now before us. need not even be known to the attesting witnesses.[18] The last
Petitioners assert that respondent court has ruled upon said issue paragraph of Article 805 merely requires that, in such a case, the
in a manner not in accord with the law and the settled attestation clause shall be interpreted to said witnesses.
jurisprudence on the matter and are now questioning once more, An attestation clause refers to that part of an ordinary will whereby
on the same ground as that raised before respondent court, the the attesting witnesses certify that the instrument has been
validity of the attestation clause in the last will of Mateo Caballero. executed before them and to the manner of the execution of the
We find the present petition to be meritorious, as we shall shortly same.[19] It is a separate memorandum or record of the facts
hereafter explain, after some prefatory observations which we feel surrounding the conduct of execution and once signed by the
should be made in aid of the rationale for our resolution of the witnesses, it gives affirmation to the fact that compliance with the
controversy. essential formalities required by law has been observed.[20] It is
1. A will has been defined as a species of conveyance whereby a made for the purpose of preserving in a permanent form a record
person is permitted, with the formalities prescribed by law, to of the facts that attended the execution of a particular will, so that
control to a certain degree the disposition of his estate after his in case of failure of the memory of the attesting witnesses, or other
death.[13] Under the Civil Code, there are two kinds of wills which a casualty, such facts may still be proved.[21]
testator may execute. The first kind is the ordinary or attested
[14]
Under the third paragraph of Article 805, such a clause, the
will, the execution of which is governed by Articles 804 to 809 of complete lack of which would result in the invalidity of the will,[22]
the Code. Article 805 requires that: should state (1) the number of pages used upon which the will is
"Art. 805. Every will, other than a holographic will, must be written; (2) that the testator signed, or expressly caused another to
subscribed at the end thereof by the testator himself or by the sign, the will and every page thereof in the presence of the
testator's name written by some other person in his presence, and attesting witnesses; and (3) that the attesting witnesses witnessed
by his express direction, and attested and subscribed by three or the signing by the testator of the will and all its pages, and that
more credible witnesses in the presence of the testator and of one said witnesses also signed the will and every page thereof in the
another.The testator or the person requested by him to write his presence of the testator and of one another.
name and the instrumental witnesses of the will, shall also sign, as The purpose of the law in requiring the clause to state the number
aforesaid, each and every page thereof, except the last, on the left of pages on which the will is written is to safeguard against
margin, and all the pages shall be numbered correlatively in letters possible interpolation or omission of one or some of its pages and
placed on the upper part of each page.The attestation shall state to prevent any increase or decrease in the pages;[23] whereas the
the number of pages used upon which the will is written, and the subscription of the signatures of the testator and the attesting
fact that the testator signed the will and every page thereof, or witnesses is made for the purpose of authentication and
caused some other person to write his name, under his express identification, and thus indicates that the will is the very same
direction, in the presence of the instrumental witnesses, and that instrument executed by the testator and attested to by the
the latter witnessed and signed the will and all the pages thereof witnesses.[24]
in the presence of the testator and of one another.If the attestation Further, by attesting and subscribing to the will, the witnesses
clause is in a language not known to the witnesses, it shall be thereby declare the due execution of the will as embodied in the
interpreted to them." attestation clause.[25] The attestation clause, therefore, provides
In addition, the ordinary will must be acknowledged before a strong legal guaranties for the due execution of a will and to insure
notary public by the testator and the attesting witnesses,[15] hence it the authenticity thereof.[26] As it appertains only to the witnesses
is likewise known as a notarial will. Where the testator is deaf or a and not to the testator, it need be signed only by them.[27] Where it
deaf-mute, Article 807 requires that he must personally read the is left unsigned, it would result in the invalidation of the will as it
will, if able to do so. Otherwise, he should designate two persons would be possible and easy to add the clause on a subsequent
who will read the will and communicate its contents to him in a occasion in the absence of the testator and the witnesses.[28]
practicable manner. On the other hand, if the testator is blind, the In its report, the Code Commission commented on the reasons of
will should be read to him twice; once, by anyone of the witnesses the law for requiring the formalities to be followed in the execution
thereto, and then again, by the notary public before whom it is of wills, in the following manner:
acknowledged.[16] "The underlying and fundamental objectives permeating the
The other kind of will is the holographic will, which Article 810 provisions on the law on wills in this Project consists in the
defines as one that is entirely written, dated, and signed by the liberalization of the manner of their execution with the end in view
hand of the testator himself. This kind of will, unlike the ordinary of giving the testator more freedom in expressing his last wishes,
type, requires no attestation by witnesses. A common requirement but with sufficient safeguards and restrictions to prevent the
in both kinds of wills is that they should be in writing and must commission of fraud and the exercise of undue and improper
have been executed in a language or dialect known to the pressure and influence upon the testator."This objective is in
testator. [17]
accord with the modern tendency with respect to the formalities in
However, in the case of an ordinary or attested will, its attestation the execution of wills. x x x "[29]
clause need not be written in a language or dialect known to the 2. An examination of the last will and testament of Mateo
testator since it does not form part of the testamentary disposition. Caballero shows that it is comprised of three sheets all of which


have been numbered correlatively, with the left margin of each other.
page thereof bearing the respective signatures of the testator and The phrase "and he has signed the same and every page thereof,
the three attesting witnesses. The part of the will containing the on the spaces provided for his signature and on the left hand
testamentary dispositions is expressed in the Cebuano-Visayan margin," obviously refers to the testator and not the instrumental
dialect and is signed at the foot thereof by the testator. The witnesses as it is immediately preceded by the words "as his Last
attestation clause in question, on the other hand, is recited in the Will and Testament." On the other hand, although the words "in the
English language and is likewise signed at the end thereof by the presence of the testator and in the presence of each and all of us"
three attesting witnesses thereto. Since it is the proverbial bone
[30]
may, at first blush, appear to likewise signify and refer to the
of contention, we reproduce it again for facility of reference: witnesses, it must, however, be interpreted as referring only to the
"We, the undersigned attesting Witnesses, whose Residences and testator signing in the presence of the witnesses since said phrase
postal addresses appear on the Opposite of our respective names, immediately follows the words "he has signed the same and every
we do hereby certify that the Testament was read by him and the page thereof, on the spaces provided for his signature and on the
testator, MATEO CABALLERO, has published unto us the foregoing left hand margin." What is then clearly lacking, in the final logical
Will consisting of THREE PAGES, including the Acknowledgment, analysis, is the statement that the witnesses signed the will and
each page numbered correlatively in letters on the upper part of ever page thereof in the presence of the testator and of one
each page, as his Last Will and Testament and he has signed the another.
same and every page thereof, on the spaces provided for his It is our considered view that the absence of that statement
signature and on the left hand margin, in the presence of the said required by law is a fatal defect or imperfection which must
testator and in the presence of each and all of us. " necessarily result in the disallowance of the will that is here sought
It will be noted that Article 805 requires that the witnesses should to be admitted to probate. Petitioners are correct in pointing out
both attest and subscribe to the will in the presence of the testator that the aforestated defect in the attestation clause obviously
and of one another. "Attestation" and "subscription" differ in cannot be characterized as merely involving the form of the will or
meaning. Attestation is the act of the senses, while subscription is the language used therein which would warrant the application of
the act of the hand. The former is mental, the latter mechanical, the substantial compliance rule, as contemplated in the pertinent
and to attest a will is to know that it was published as such, and to provision thereon in the Civil Code, to wit:
certify the facts required to constitute an actual and legal "Art. 809. In the absence of bad faith, forgery, or fraud, or undue
publication; but to subscribe a paper published as a will is only to and improper pressure and influence, defects and imperfections in
write on the same paper the names of the witnesses, for the sole the form of attestation or in the language used therein shall not
purpose of identification. [31]
render the will invalid if it is proved that the will was in fact
In Taboada vs. Rosal,[32] we clarified that attestation consists in executed and attested in substantial compliance with all the
witnessing the testator's execution of the will in order to see and requirements of article 805" (Underscoring supplied.)
take note mentally that those things are done which the statute While it may be true that the attestation clause is indeed
requires for the execution of a will and that the signature of the subscribed at the end thereof and at the left margin of each page
testator exists as a fact. On the other hand, subscription is the by the three attesting witnesses, it certainly cannot be conclusively
signing of the witnesses' names upon the same paper for the inferred therefrom that the said witnesses affixed their respective
purpose of identification of such paper as the will which was signatures in the presence of the testator and of each other since,
executed by the testator. As it involves a mental act, there would as petitioners correctly observed, the presence of said signatures
be no means, therefore, of ascertaining by a physical examination only establishes the fact that it was indeed signed, but it does not
of the will whether the witnesses had indeed signed in the prove that the attesting witnesses did subscribe to the will in the
presence of the testator and of each other unless this is presence of the testator and of each other. The execution of a will
substantially expressed in the attestation. is supposed to be one act so that where the testator and the
It is contended by petitioners that the aforequoted attestation witnesses sign on various days or occasions and in various
clause, in contravention of the express requirements of the third combinations, the will cannot be stamped with the imprimatur of
paragraph of Article 805 of the Civil Code for attestation clauses, effectivity.[33]
fails to specifically state the fact that the attesting witnesses We believe that the following comment of former Justice J.B.L.
witnessed the testator sign the will and all its pages in their Reyes[34] regarding Article 809, wherein he urged caution in the
presence and that they, the witnesses, likewise signed the will and application of the substantial compliance rule therein, is correct
every page thereof in the presence of the testator and of each and should be applied in the case under consideration, as well as
other. We agree. to future cases with similar questions:
What is fairly apparent upon a careful reading of the attestation "x x x The rule must be limited to disregarding those defects that
clause herein assailed is the fact that while it recites that the can be supplied by an examination of the will itself: whether all the
testator indeed signed the will and all its pages in the presence of pages are consecutively numbered; whether the signatures
the three attesting witnesses and states as well the number of appear in each and every page; whether the subscribing
pages that were used, the same does not expressly state therein witnesses are three or the will was notarized. All these are facts
the circumstance that said witnesses subscribed their respective that the will itself can reveal, and defects or even omissions
signatures to the will in the presence of the testator and of each concerning them in the attestation clause can be safely



disregarded. But the total number of pages, and whether all the Civil Code.
persons required to sign did so in the presence of each other must One view advanced the liberal or substantial compliance rule. This
substantially appear in the attestation clause, being the only check was first laid down in the case of Abangan vs. Abangan,[36] where it
against perjury in the probate proceedings." (Emphasis ours.) was held that the object of the solemnities surrounding the
3. We stress once more that under Article 809, the defects or execution of wills is to close the door against bad faith and fraud,
imperfections must only be with respect to the form of the to avoid substitution of wills and testaments and to guarantee their
attestation or the language employed therein. Such defects or truth and authenticity. Therefore, the laws on this subject should
imperfections would not render a will invalid should it be proved be interpreted in such a way as to attain these primordial ends.
that the will was really executed and attested in compliance with Nonetheless, it was also emphasized that one must not lose sight
Article 805. In this regard, however, the manner of proving the due of the fact that it is not the object of the law to restrain and curtail
execution and attestation has been held to be limited to merely an the exercise of the right to make a will, hence when an
examination of the will itself without resorting to evidence aliunde, interpretation already given assures such ends, any other
whether oral or written. interpretation whatsoever that adds nothing but demands more
The foregoing considerations do not apply where the attestation requisites entirely unnecessary, useless and frustrative of the
clause totally omits the fact that the attesting witnesses signed testator's last will, must be disregarded. The subsequent cases of
each and every page of the will in the presence of the testator and Avera vs. Garcia,[37] Aldaba vs. Roque,[38] Unson vs. Abella,[39] Pecson
of each other.[35] In such a situation, the defect is not only in the vs. Coronel,[40] Fernandez vs. Vergel de Dios, et al.,[41] and Nayve vs.
form or the language of the attestation clause but the total Mojal, et al. [42] all adhered to this position.
absence of a specific element required by Article 805 to be The other view which advocated the rule that statutes which
specifically stated in the attestation clause of a will. That is prescribe the formalities that should be observed in the execution
precisely the defect complained of in the present case since there of wills are mandatory in nature and are to be strictly construed
is no plausible way by which we can read into the questioned was followed in the subsequent cases of In the Matter of the
attestation clause any statement, or an implication thereof, that the Estate of Saguinsin,[43] In re Will of Andrada,[44] Uy Coque vs. Sioca, [45]
attesting witnesses did actually bear witness to the signing by the In re Estate of Neumark,[46] and Sano vs. Quintana.[47]
testator of the will and all its pages and that said instrumental Gumban vs. Gorecho, et al.,[48] provided the Court with the occasion
witnesses also signed the will and every page thereof in the to clarify the seemingly conflicting decisions in the aforementioned
presence of the testator and of one another. cases. In said case of Gumban, the attestation clause had failed to
Furthermore, the rule on substantial compliance in Article 809 state that the witnesses signed the will and each and every page
cannot be invoked or relied on by respondents since it thereof on the left margin in the presence of the testator. The will
presupposes that the defects in the attestation clause can be in question was disallowed, with these reasons therefor:
cured or supplied by the text of the will or a consideration of "In support of their argument on the assignment of error
matters apparent therefrom which would provide the data not above-mentioned, appellants rely on a series of cases of this court
expressed in the attestation clause or from which it may beginning with (I)n the Matter of the (E)state of Saguinsin ([1920], 41
necessarily be gleaned or clearly inferred that the acts not stated Phil., 875), continuing with In re Will of Andrada [1921], 42 Phil.,
in the omitted textual requirements were actually complied with in 180), Uy Coque vs. Navas L. Sioca [1922], 43 Phil., 405), and In re
the execution of the will. In other words, the defects must be Estate of Neumark ([1923], 46 Phil., 841), and ending with Sano vs.
remedied by intrinsic evidence supplied by the will itself. Quintana ([1925], 48 Phil., 506). Appellee counters with the citation
In the case at bar, contrarily, proof of the acts required to have of a series of cases beginning with Abangan vs. Abangan ([1919],
been performed by the attesting witnesses can be supplied only 40 Phil., 476), continuing through Aldaba vs. Roque, ([1922], 43
by extrinsic evidence thereof, since an overall appreciation of the Phil., 378), and Fernandez vs. Vergel de Dios ([1924], 46 Phil., 922),
contents of the will yields no basis whatsoever from which such and culminating in Nayve vs. Mojal and Aguilar ([1924], 47 Phil.,
facts may be plausibly deduced. What private respondent insists 152). In its last analysis, our task is to contrast and, if possible,
on are the testimonies of his witnesses alleging that they saw the conciliate, the last two decisions cited by opposing counsel,
compliance with such requirements by the instrumental witnesses, namely, those of Sano vs. Quintana, supra, and Nayve vs. Mojal
oblivious of the fact that he is thereby resorting to extrinsic and Aguilar, supra."In the case of Sano vs. Quintana, supra, it was
evidence to prove the same and would accordingly be doing by decided that an attestation clause which does not recite that the
indirection what in law he cannot do directly. witnesses signed the will and each and every page thereof on the
4. Prior to the advent of the Civil Code on August 30, 1950, there left margin in the presence of the testator is defective, and such a
was a divergence of views as to which manner of interpretation defect annuls the will. The case of Uy Coque vs. Sioca, supra, was
should be followed in resolving issues centering on compliance cited, but the case of Nayve vs. Mojal and Aguilar, supra, was not
with the legal formalities required in the execution of wills. The mentioned. In contrast, is the decision in Nayve vs. Mojal and
formal requirements were at that time embodied primarily in Aguilar, supra, wherein it was held that the attestation clause must
Section 618 of Act No. 190, the Code of Civil Procedure. Said state the fact that the testator and the witnesses reciprocally saw
section was later amended by Act No. 2645, but the provisions the signing of the will, for such an act cannot be proved by the
respecting said formalities found in Act No. 190 and the mere exhibition of the will, if it is not stated therein. It was also held
amendment thereto were practically reproduced and adopted in that the fact that the testator and the witnesses signed each and


every page of the will can be proved also by the mere examination compliance rule, as it believed this rule to be in accord with the
of the signatures appearing on the document itself, and the modern tendency to give a liberal approach to the interpretation of
omission to state such evident facts does not invalidate the will."It wills. Said rule thus became what is now Article 809 of the Civil
is a habit of courts to reaffirm or distinguish previous cases; Code, with this explanation of the Code Commission:
seldom do they admit inconsistency in doctrine. Yet here, unless "The present law provides for only one form of executing a will,
aided by casuistry of the extreme type, it would be impossible to and that is, in accordance with the formalities prescribed by
reconcile the Mojal and Quintana decisions. They are Section 618 of the Code of Civil Procedure as amended by Act No.
fundamentally at variance. If we rely on one, we affirm. If we rely 2645. The Supreme Court of the Philippines had previously upheld
on the other, we reverse."In resolving this puzzling question of the strict compliance with the legal formalities and had even said
authority, three outstanding points may be mentioned. In the first that the provisions of Section 618 of the Code of Civil Procedure,
place, the Mojal decision was concurred in by only four members as amended regarding the contents of the attestation clause were
of the court, less than a majority, with two strong dissenting mandatory, and non-compliance therewith invalidated the will (Uy
opinions; the Quintana decision was concurred in by seven Coque vs. Sioca, 43 Phil. 405). These decisions necessarily
members of the court, a clear majority, with one formal dissent. In restrained the freedom of the testator in disposing of his
the second place, the Mojal decision was promulgated in property."However, in recent years the Supreme Court changed its
December, 1924, while the Quintana decision was promulgated in attitude and has become more liberal in the interpretation of the
December 1925; the Quintana decision was thus subsequent in formalities in the execution of wills. This liberal view is enunciated
point of time. And in the third place, the Quintana decision is in the cases of Rodriguez vs. Yap, G.R. No. 45924, May 18, 1939;
believed more nearly to conform to the applicable provisions of Leynez vs. Leynez, G.R. No. 46097, October 18, 1939; Martir vs.
the law."The right to dispose of property by will is governed Martir, G.R. No. 46995, June 21, 1940; and Alcala vs. Villa, G.R. No.
entirely by statute. The law of the case is here found in section 61 47351, April 18, 1941."In the above mentioned decisions of our
of the Code of Civil Procedure, as amended by Act No. 2645, and Supreme Court, it has practically gone back to the original
in section 634 of the same Code, as unamended. It is in part provisions of Section 618 of the Code of Civil Procedure before its
provided in section 61, as amended that 'No will * * * shall be valid * amendment by Act No. 2645 in the year 1916. To turn this attitude
* * unless * * *.' It is further provided in the same section that 'The into a legislative declaration and to attain the main objective of the
attestation shall state the number of sheets or pages used, upon proposed Code in the liberalization of the manner of executing
which the will is written, and the fact that the testator signed the wills, article 829 of the Project is recommended, which reads:
will and every page thereof, or caused some other person to write 'ART. 829. In the absence of bad faith, forgery, or fraud, or undue
his name, under his express direction, in the presence of three and improper pressure and influence, defects and imperfections in
witnesses, and the latter witnessed and signed the will and all the form of attestation or in the language used therein shall not
pages thereof in the presence of the testator and of each other.' render the will invalid if it is proved that the will was in fact
Codal section 634 provides that 'The will shall be disallowed in executed and attested in substantial compliance with all the
either of the following cases: 1. If not executed and attested as in requirements of article 829.'"[65]
this Act provided.’ The law not alone carefully makes use of the The so-called liberal rule, the Court said in Gil vs. Murciano,[66]
imperative, but cautiously goes further and makes use of the "does not offer any puzzle or difficulty, nor does it open the door
negative, to enforce legislative intention. It is not within the to serious consequences. The later decisions do tell us when and
province of the courts to disregard the legislative purpose so where to stop; they draw the dividing line with precision. They do
emphatically and clearly expressed."We adopt and reaffirm the not allow evidence aliunde to fill a void in any part of the
decision in the case of Sano vs. Quintana, supra, and, to the extent document or supply missing details that should appear in the will
necessary, modify the decision in the case of Nayve vs. Mojal and itself. They only permit a probe into the will, an exploration into its
Aguilar, supra." (Emphases in the original text). confines, to ascertain its meaning or to determine the existence or
But after the Gumban clarificatory pronouncement, there were absence of the requisite formalities of law. This clear, sharp
decisions of the Court that once more appeared to revive the limitation eliminates uncertainty and ought to banish any fear of
seeming diversity of views that was earlier threshed out therein. dire results."
The cases of Quinto vs. Morata, Rodriguez vs. Alcala,
[49] [50]
It may thus be stated that the rule, as it now stands, is that
Echevarria vs. Sarmiento,[51] and Testate Estate of Toray[52] went the omissions which can be supplied by an examination of the will
way of the ruling as restated in Gumban. But De Gala vs. Gonzales, itself, without the need of resorting to extrinsic evidence, will not
et al., Rey vs. Cartagena, De Ticson vs. De Gorostiza,
[53] [54] [55]
be fatal and, correspondingly, would not obstruct the allowance to
Sebastian vs. Panganiban, Rodriguez vs. Yap, Grey vs. Fabia,
[56] [57] [58]
probate of the will being assailed. However, those omissions
Leynez vs. Leynez,[59] Martir vs. Martir,[60] Alcala vs. De Villa,[61] Sabado which cannot be supplied except by evidence aliunde would result
vs. Fernandez,[62] Mendoza vs. Pilapil,[63] and Lopez vs. Liboro,[64] in the invalidation of the attestation clause and ultimately, of the
veered away from the strict interpretation rule and established a will itself.[67]
trend toward an application of the liberal view. WHEREFORE, the petition is hereby GRANTED and the impugned
The Code Commission, cognizant of such a conflicting welter of decision of respondent court is hereby REVERSED and SET ASIDE.
views and of the undeniable inclination towards a liberal The court a quo is accordingly directed to forthwith DISMISS its
construction, recommended the codification of the substantial Special Proceeding No. 3899-R (Petition for the Probate of the Last



Will and Testament of Mateo Caballero) and to REVIVE Special "x x x (T)he will and codicil could pass the safeguards under Article
Proceeding No. 3965-R (In the Matter of the Intestate Estate of 805 of the New Civil Code but for one crucial factor of discrepancy
Mateo Caballero) as an active case and thereafter duly proceed in the color of ink when the instrumental witnesses affixed their
with the settlement of the estate of the said decedent. respective signatures. When subjected to cross?examination,
SO ORDERED. Codcodio Nacnas as witness testified as follows:'Q And all of you
signed on the same table?'A Yes, sir.'Q And when you were all
Narvasa, C.J., (Chairman), Padilla, and Nocon, JJ., concur. signing this Exhibit 'B' and 'B-1', Exhibit 'B' and 'B-1' which is the
testament was passed around all of you so that each of you will
sign consecutively?'A Yes, sir.'Q Who was the first to sign?'A Calibia
32 Calde v. CA 322 SCRA 376 Lingdan Bulanglang.'Q After Calibia Lingdan Bulanglang was made
G.R. No. 93980 to sign - I withdraw the question. How did Calibia Lingdan
Bulanglang sign the last will and testament?'A She asked Judge
Tolete the place where she will affix her thumbmark so Judge
Tolete directed her hand or her thumb to her name.'Q After she
signed, who was the second to sign allegedly all of you there
SECOND DIVISION
present?'A Jose Becyagen.'Q With what did Jose Becyagen sign
[ G.R. No. 93980, June 27, 1994 ] the testament, Exhibit 'B' and 'B-1'?'A Ballpen.'Q And after Jose
Becyagen signed his name with the ballpen, who was the next to
CLEMENTE CALDE, PETITIONER, VS. THE COURT OF sign?'A Me, sir.'Q And Jose Becyagen passed you the paper and
APPEALS, PRIMO AGAWIN AND DOMYAAN APED, the ballpen, Exhibit 'B' and 'B-1' plus the ballpen which used to sign
RESPONDENTS.
so that you could sign your name, is that correct?'A Yes, sir.'Q And

then after you signed, who was the next to sign the document,
Exhibit 'B' and 'B-1'?'A Hilario Coto-ong.'Q So you passed also to
D E C I S I O N Hilario Coto-ong the same Exhibit 'B' and 'B-1' and the ballpen so
that he could sign his name as witness to the document, is it not?'A
PUNO, J.: Yes, sir.'Q And that is the truth and you swear that to be the truth
before the Honorable Court?ATTY. DALOG:He already testified
under oath, Your Honor.COURT:Witness may answer.'A Yes, sir."For
This is a petition for review by certiorari of the Decision, dated his part, Obanan Ticangan likewise admitted during
March 27, 1990, of the Court of Appeals[1] in CA-G.R. CV No. 19071, cross-examination in regard to the codicil that:'Q When you signed
disallowing probate of the Last Will and Codicil executed by Exhibit 'D' and 'D-1', did you all sign with the same ballpen?'A
Calibia Lingdan Bulanglang, who died on March 20, 1976. One.'"Such admissions from instrumental witnesses are indeed
The records show that decedent left behind nine thousand pesos significant since they point to no other conclusion than that the
(P9,000.00) worth of property. She also left a Last Will and documents were not signed by them in their presence but on
Testament, dated October 30, 1972, and a Codicil thereto, dated different occasions since the same ballpen used by them
July 24, 1973. Both documents contained the thumbmarks of supposedly in succession could not have produced a different
decedent. They were also signed by three (3) attesting witnesses color from blue to black and from black to blue. In fact, the
each, and acknowledged before Tomas A. Tolete, then the attestation clause followed the same pattern. The absurd
Municipal Judge and Notary Public Ex-Officio of Bauko, Mt. sequence was repeated when they signed the codicil, for which
Province. reason, We have no other alternative but to disallow the Last Will
Nicasio Calde, the executor named in the will, filed a Petition for its and Codicil. Verily, if the witnesses and testatrix used the same
allowance before the RTC of Bontoc, Mt. Province, Br. 36.[2] He died ballpen, then their signatures would have been in only one color,
during the pendency of the proceedings, and was duly substituted not in various ones as shown in the documents. Moreover, the
by petitioner. Private respondents, relatives of decedent, opposed signatures, in different colors as they are, appear to be of different
the Petition filed by Calde, on the following grounds: that the will broadness, some being finer than the others, indicating that,
and codicil were written in Ilocano, a dialect that decedent did not contrary to what the testamentary witnesses declared on the
know; that decedent was mentally incapacitated to execute the witness stand, not only one ballpen was used, and, therefore,
two documents because of her advanced age, illness and showing that the documents were not signed by the testatrix and
deafness; that decedent's thumbmarks were procured through instrumental witnesses in the presence of one another. x x x"'
fraud and undue influence; and that the codicil was not executed (Rollo, pp. 44-46. Citations omitted.)
in accordance with law. Petitioner unsuccessfully moved for reconsideration of the
On June 23, 1988, the trial court rendered judgment on the case, impugned Decision. His motion was denied by the respondent
approving and allowing decedent's will and its codicil. The court in its Order, dated May 24, 1990.
decision was appealed to and reversed by the respondent Court Thus, this appeal by petitioner who now puts in issue the
of Appeals. It held: correctness of the respondent court's conclusion that both
decedent's will and codicil were not subscribed by the witnesses


in the presence of the testator and of one another, contrary to the the two documents. In fact, two (2) of petitioner's witnesses even
requirements of Article 805 of the Civil Code. He contends that: testified that only one (1) ballpen was used in signing the two
“1. THE HONORABLE COURT OF APPEALS HAS DECIDED A testamentary documents.
QUESTION OF SUBSTANCE IN A WAY NOT IN ACCORD WITH It is accepted that there are three sources from which a tribunal
LAW OR WITH THE APPLICABLE DECISION OF THE SUPREME may properly acquire knowledge for making its decisions, namely:
COURT BY CONCLUDING BASED ON PURE SPECULATION OR circumstantial evidence, testimonial evidence, and real evidence
SURMISES AND WITHOUT REGARD TO THE TESTIMONY OF or autoptic proference. Wigmore explains these sources as
JUDGE TOLETE WHICH IS AN EVIDENCE OF SUBSTANCE THAT follows:
THE WILL AND THE CODICIL OF THE LATE CALIBIA LINGDAN "If, for example, it is desired to ascertain whether the accused has
BULANGLANG WERE SIGNED BY HER AND BY HER lost his right hand and wears an iron hook in place of it, one
INSTRUMENTAL WITNESSES ON DIFFERENT OCCASIONS;“2. source of belief on the subject would be the testimony of a
THE HONORABLE COURT OF APPEALS HAS DECIDED A witness who had seen the arm; in believing this testimonial
QUESTION OF SUBSTANCE IN A WAY NOT IN ACCORD WITH evidence, there is an inference from the human assertion to the
LAW OR WITH THE APPLICABLE DECISIONS OF THE SUPREME fact asserted. A second source of belief would be the mark left on
COURT BY DISREGARDING THE PROBATIVE VALUE OF THE some substance grasped or carried by the accused; in believing
ATTESTATION CLAUSES OF THE LAST WILL AND TESTAMENT this circumstantial evidence, there is an inference from the
AND THE CODICIL OF THE LATE CALIBIA LINGDAN circumstance to the thing producing it. A third source of belief
BULANGLANG." remains, namely, the inspection by the tribunal of the accused's
The petition must fail. arm. This source differs from the other two in omitting any step of
The question in the case at bench is one of fact: whether or not, conscious inference or reasoning, and in proceeding by direct
based on the evidence submitted, respondent appellate court self-perception, or autopsy."It is unnecessary, for present
erred in concluding that both decedent's Last Will and Testament, purposes, to ask whether this is not, after all, a third source of
and its Codicil were subscribed by the instrumental witnesses on inference, i.e., an inference from the impressions or perceptions of
separate occasions. As a general rule, factual findings of the Court the tribunal to the objective existence of the thing perceived. The
of Appeals are considered final and conclusive, and cannot be law does not need and does not attempt to consider theories of
reviewed on appeal to this court. In the present instance, however, psychology as to the subjectivity of knowledge or the mediateness
there is reason to make an exception to that rule, since the finding of perception. It assumes the objectivity of external nature; and, for
of the respondent court is contrary to that of the trial court, viz.: the purposes of judicial investigation, a thing perceived by the
"x x x (Private respondents) pointed out however, that the tribunal as existing does exist."There are indeed genuine cases of
assertions of petitioner's witnesses are rife with contradictions, inference by the tribunal from things perceived to other things
particularly the fact that the latter's signatures on the documents in unperceived -- as, for example, from a person's size, complexion,
issue appear to have been written in ballpens of different colors and features, to his age; these cases of a real use of inference can
contrary to the statements of said witnesses that all of them signed be later more fully distinguished x x x. But we are here concerned
with only one ballpen. The implication is that the subscribing with nothing more than matters directly perceived -- for example,
witnesses to the Will and Codicil, and the testatrix did not that a person is of small height or is of dark complexion; as to such
simultaneously sign each of the documents in one sitting but did it matters, the perception by the tribunal that the person is small or
piecemeal -- a violation of Art. 805 of the Code. This conclusion of large, or that he has a dark or light complexion, is a mode of
the (private respondents) is purely circumstantial. From this acquiring belief which is independent of inference from either
particular set of facts, numerous inferences without limits can be testimonial or circumstantial evidence. It is the tribunal's
drawn depending on which side of the fence one is on. For self-perception, or autopsy, of the thing itself."From the point of
instance, considering the time interval that elapsed between the view of the litigant party furnishing this source of belief, it may be
making of the Will and Codicil, and up to the filing of the petition termed Autoptic Proference."[3] (Citations omitted.)
for probate, the possibility is not remote that one or two of the In the case at bench, the autoptic proference contradicts the
attesting witnesses may have forgotten certain details that testimonial evidence produced by petitioner. The will and its
transpired when they attested the documents in question. x x x" codicil, upon inspection by the respondent court, show in black
(Rollo, pp. 36-37.) and white -- or more accurately, in black and blue -- that more than
A review of the facts and circumstances upon which respondent one pen was used by the signatories thereto. Thus, it was not
Court of Appeals based its impugned finding, however, fails to erroneous nor baseless for respondent court to disbelieve
convince us that the testamentary documents in question were petitioner's claim that both testamentary documents in question
subscribed and attested by the instrumental witnesses during a were subscribed to in accordance with the provisions of Art. 805
single occasion. of the Civil Code.
As sharply noted by respondent appellate court, the signatures of Neither did respondent court err when it did not accord great
some attesting witnesses in decedent’s will and its codicil were weight to the testimony of Judge Tomas A. Tolete. It is true that his
written in blue ink, while the officers were in black. This testimony contains a narration of how the two testamentary
discrepancy was not explained by petitioner. Nobody of his six (6) documents were subscribed and attested to, starting from
witnesses testified that two pens were used by the signatories on decedent's thumbmarking thereof, to the alleged signing of the



instrumental witnesses thereto in consecutive order. Nonetheless, claimed that this defect has the effect of invalidating the will.
nowhere in Judge Tolete's testimony is there any kind of
explanation for the different-colored signatures on the testaments. The will in question, after reciting in separate paragraphs, and
IN VIEW WHEREOF, the instant Petition for Review is DENIED. The under correlative numbers, the provisions of the will, winds up with
Decision of respondent Court of Appeals, dated March 27, 1988, in the following clause:"IN WITNESS WHEREOF, I sign this testament
CA-G.R. CV No. 19071 disallowing the Last Will and Testament, and or last will in the municipality of Iba, Zambales, Philippines, this
the Codicil thereto, of the decedent Calibia Lingdan Bulanglang is 10th day of October, 1945, in the presence of the three witnesses,
AFFIRMED IN TOTO. Costs against petitioner. namely Dr. Nestorio Trinidad, Don Baldomero Achacoso, and Mr.
SO ORDERED. Proceso Cabal as instrumental witnesses to my signing; this
Narvasa, C.J., (Chairman), Padilla, Regalado, and Mendoza, JJ., testament is written in three (3) sheets marked by letter 'A', 'B' and
concur. 'C consecutively on top of each sheet and upon my-request and in
my presence and also in the presence of each of the aforesaid
instrumental witnesses, they also signed this testament already
33 Cuevas v. Achacoso G.R. No. L-3497. May 18, referred to.
1951
88 Phil. 730
I hereby manifest that every sheet of the aforesaid testament, on
the left-hand margin as well as the testament itself have been

signed by me as also each of the witnesses has also signed in my
[ G. R. No. L-3497, May 18, 1951 ] presence and in the presence of each other.

IN THE MATTER OF THE PROBATE OF THE LAST WILL
AND TESTAMENT OF JOSE VENZON. VALENTINA
CUEVAS, PETITIONER AND APPELLEE, VS. PILAR (Sgd.) JOSE
ACHACOSO, OPPOSITOR AND APPELLANT.
VENZON

D E C I S I O N Witnesses:
(Sgd.) NESTORIO TRINIDAD

(Sgd.) BALDOMERO L.
BAUTISTA ANGELO, J.:
ACHACOSO

(Sgd.) PROCESO CABAL
This is an appeal from an order of the Court of First Instance of

Zambales admitting to probate the last will and testament of the
The clause above quoted is the attestation clause referred to in
late Jose Venzon.
the law which, in our opinion, substantially complies with its

requirements. The only apparent anomaly we find is that it appears
On January 19, 1946, Jose Venzon died in Iba, Zambales, leaving a
to be an attestation made by the testator himself more than by the
will. In said will the deceased instituted as his heirs, Valentina
instrumental witnesses. This apparent anomaly, however, is not in
Cuevas, his widow and Rosario Asera Venzon, his daugther. He
our opinion serious nor substantial as to affect the validity of the
named therein his widow as executrix of the will. On February 1,
will, it appearing that right under the signature of the testator,
1946, Valentina Cuevas filed a petition for the probate of said will.
there appear the signatures of the three instrumental witnesses,

On May 10, 1946, one Pilar Achacoso filed an alternative petition
"Instrumental witness, as denned by Escriche in his Diccionario
for the probate of a previous will executed by the deceased
Razonado de Legislacion y Jurisprudencia, Vol. 4, p. 1115, is one
praying therein that, if the will submitted by the widow be rejected,
who takes part in the execution of an instrument or writing" (In re
the other will be admitted to probate in lieu thereof. In the
will of Tan Diuco, 45 Phil, 807, 809). An instrumental witness,
previous will there are other heirs instituted, among them
therefore, does not merely attest to the signature of the testator
petitioner Pilar Achacoso. Pilar Achacoso objected to the probate
but also to the proper execution of the will. The fact that the three
of the second will executed by the deceased on October 10, 1945.
instrumental witnesses have signed the will immediately under the
After due hearing, the court found that the latter will was executed
signature of the testator, shows that they have in fact attested not
in accordance with law and ordered that it be admitted to probate.
only to the genuineness of his signature but also to the due
Pilar Achacoso took the case to the Court of Appeals, but the latter
execution of the will as embodied in the attestation clause.
certified it to this Court on the ground that it involves purely

questions of law.
The attestation clause in question bears close similarity with the

attestation clause in the will involved in Aldaba vs. Roque, (43 Phil.,
"The main error assigned refers to the alleged lack of attestation
378). In that case, the attestation clause formed part of the body of
clause in the will under consideration, or to the fact that, if there is
the will and its recital was made by the testatrix herself and was
such attestation clause, the same has not been signed by the
signed by her and by the three instrumental witnesses. In
instrumental witnesses, but by the testator himself, and it is
upholding the validity of the will, the court said:



"In reality, it appears that it is the testatrix who makes the LOPEZ RICHARD B. LOPEZ, PETITIONER, VS. DIANA
declaration about the points in the last paragraph of the will; JEANNE LOPEZ, MARYBETH DE LEON AND VICTORIA L.
however, as the witnesses, together with the testatrix, have signed TUAZON, RESPONDENTS.

the said declaration, we are of the opinion and so hold that the D E C I S I O N
words above quoted of the testament constitute a sufficient
compliance with the requirements of Act No. 2645."
As was said in one case, "the object of the solemnities PERLAS-BERNABE, J.:
surrounding the execution of the wills is to close the door against
bad faith and fraud, to avoid substitution of wills and testaments This Petition for Review on Certiorari assails the March 30, 2009
and to guarantee their truth and authenticity. Therefore the laws Decision[1] and October 22, 2009 Resolution[2] of the Court of
on this subject should be interpreted in such a way as to attain Appeals (CA) in CA-G.R. CV No. 87064 which affirmed the August
these primordial ends. But on the other hand, also one must not 26, 2005 Decision[3] of the Regional Trial Court of Manila, Branch
lose sight of the fact that it is not the object of the law to restrain 42 (RTC), in SP. Proc. No. 99-95225 disallowing the probate of the
and curtail the exercise of the right to make a will. So when an Last Will and Testament of Enrique S. Lopez.
interpretation already given assures such ends, any other
interpretation whatsoever, that adds nothing but demands more The Factual Antecedents
requisites entirely unnecessary, useless and frustrative of the
testator's will, must be disregarded.'' In re will of Tan Diuco, supra, On June 21, 1999, Enrique S. Lopez (Enrique) died leaving his wife,
p. 811.) (Italics supplied.) Wendy B. Lopez, and their four legitimate children, namely,
petitioner Richard B. Lopez (Richard) and the respondents Diana
Expressive of this liberal view of interpretation, are also the Jeanne Lopez (Diana), Marybeth de Leon (Marybeth) and Victoria
following rules embodied in the new Civil Code. These provisions, L. Tuazon (Victoria) as compulsory heirs. Before Enrique’s death,
although not directly applicable, are however, significant because he executed a Last Will and Testament[4] on August 10, 1996 and
they project the point of view of our legislature when it adopted constituted Richard as his executor and administrator.
them having in view the existing law and jurisprudence on the
matter. On September 27, 1999, Richard filed a petition for the probate of
"ART. 788. If a testamentary disposition admits of different his father's Last Will and Testament before the RTC of Manila with
interpretations, in case of doubt, that interpretation by which the prayer for the issuance of letters testamentary in his favor.
disposition is to be operative shall be preferred." Marybeth opposed the petition contending that the purported last
will and testament was not executed and attested as required by
"ART. 791. The words of a will are to receive an interpretation which law, and that it was procured by undue and improper pressure and
will give to every expression some effect, rather than one which influence on the part of Richard. The said opposition was also
will render any of the expressions inoperative; and of two modes adopted by Victoria.
of interpreting a will, that is to be preferred which will prevent
intestacy." After submitting proofs of compliance with jurisdictional
Wherefore, the order appealed from is hereby affirmed, with costs requirements, Richard presented the attesting witnesses, namely:
against the appellant. Reynaldo Maneja; Romulo Monteiro; Ana Maria Lourdes Manalo
(Manalo); and the notary public who notarized the will, Atty.
Paras, C. J., Feria and Tuason, JJ., concur. Perfecto Nolasco (Atty. Nolasco). The instrumental witnesses
testified that after the late Enrique read and signed the will on
JUGO, J.: each and every page, they also read and signed the same in the
latter's presence and of one another. Photographs of the incident
I concur in the result. were taken and presented during trial. Manalo further testified that
she was the one who prepared the drafts and revisions from
Enrique before the final copy of the will was made.
34 Lopez v. Lopez, G.R. No. 189984 (Resolution),
[November 12, 2012), 698 PHIL 423-428)
Likewise, Atty. Nolasco claimed that Enrique had been his client
698 Phil. 423
for more than 20 years. Prior to August 10, 1996, the latter
consulted him in the preparation of the subject will and furnished
him the list of his properties for distribution among his children.
He prepared the will in accordance with Enrique's instruction and
SECOND DIVISION
that before the latter and the attesting witnesses signed it in the
[ G.R. No. 189984, November 12, 2012 ] presence of one another, he translated the will which was written
in English to Filipino and added that Enrique was in good health
IN THE MATTER OF THE PETITION FOR THE PROBATE and of sound mind at that time.
OF THE LAST WILL AND TESTAMENT OF ENRIQUE S.


On the other hand, the oppositors presented its lone witness, The provisions of the Civil Code on Forms of Wills, particularly,
Gregorio B. Paraon (Paraon), Officer-in-Charge of the Notarial Articles 805 and 809 of the Civil Code provide:
Section, Office of the Clerk of Court, RTC, Manila. His testimony
centered mainly on their findings that Atty. Nolasco was not a ART. 805. Every will, other than a holographic will, must be
notary public for the City of Manila in 1996, which on cross subscribed at the end thereof by the testator himself or by the
examination was clarified after Paraon discovered that Atty. testator's name written by some other person in his presence, and
Nolasco was commissioned as such for the years 1994 to 1997. by his express direction, and attested and subscribed by three or
more credible witnesses in the presence of the testator and of one
Ruling of the RTC another.

[5]
In the Decision dated August 26, 2005, the RTC disallowed the The testator or the person requested by him to write his name and
probate of the will for failure to comply with Article 805 of the Civil the instrumental witnesses of the will, shall also sign, as aforesaid,
Code which requires a statement in the attestation clause of the each and every page thereof, except the last, on the left margin,
number of pages used upon which the will is written. It held that and all the pages shall be numbered correlatively in letters placed
while Article 809 of the same Code requires mere substantial on the upper part of each page.
compliance of the form laid down in Article 805 thereof, the rule
only applies if the number of pages is reflected somewhere else in The attestation shall state the number of pages used upon which
the will with no evidence aliunde or extrinsic evidence required. the will is written, and the fact that the testator signed the will and
While the acknowledgment portion stated that the will consists of every page thereof, or caused some other person to write his
7 pages including the page on which the ratification and name, under his express direction, in the presence of the
acknowledgment are written, the RTC observed that it has 8 pages instrumental witnesses, and that the latter witnessed and signed
including the acknowledgment portion. As such, it disallowed the the will and all the pages thereof in the presence of the testator
will for not having been executed and attested in accordance with and of one another.
law.
If the attestation clause is in a language not known to the
Aggrieved, Richard filed a Notice of Appeal which the RTC granted witnesses, it shall be interpreted to them. (underscoring supplied)
[6]
in the Order dated October 26, 2005.

ART. 809. In the absence of bad faith, forgery, or fraud, or undue
Ruling of the Court of Appeals and improper pressure and influence, defects and imperfections in
the form of attestation or in the language used therein shall not
[7]
On March 30, 2009, the CA issued the assailed decision render the will invalid if it is proved that the will was in fact
dismissing the appeal. It held that the RTC erroneously granted executed and attested in substantial compliance with all the
Richard's appeal as the Rules of Court is explicit that appeals in requirements of Article 805.
special proceedings, as in this case, must be made through a The law is clear that the attestation must state the number of
record on appeal. Nevertheless, even on the merits, the CA found pages used upon which the will is written. The purpose of the law
no valid reason to deviate from the findings of the RTC that the is to safeguard against possible interpolation or omission of one or
failure to state the number of pages of the will in the attestation some of its pages and prevent any increase or decrease in the
clause was fatal. It noted that while Article 809 of the Civil Code pages.[9]

sanctions mere substantial compliance with the formal
requirements set forth in Article 805 thereof, there was a total While Article 809 allows substantial compliance for defects in the
omission of such fact in the attestation clause. Moreover, while the form of the attestation clause, Richard likewise failed in this
acknowledgment of the will made mention of “7 pages including respect. The statement in the Acknowledgment portion of the
the page on which the ratification and acknowledgment are subject LAST WILL AND TESTAMENT that it “consists of 7 pages
written,” the will had actually 8 pages including the including the page on which the ratification and acknowledgment
acknowledgment portion thus, necessitating the presentation of are written”[10] cannot be deemed substantial compliance. The will
evidence aliunde to explain the discrepancy. Richard's motion for actually consists of 8 pages including its acknowledgment which
reconsideration from the decision was likewise denied in the discrepancy cannot be explained by mere examination of the will
[8]
second assailed Resolution dated October 22, 2009. itself but through the presentation of evidence aliunde.[11] On this
score is the comment of Justice J.B.L. Reyes regarding the
Hence, the instant petition assailing the propriety of the CA's application of Article 809, to wit:
decision.
x x x The rule must be limited to disregarding those defects that
Ruling of the Court can be supplied by an examination of the will itself: whether all the
pages are consecutively numbered; whether the signatures
The petition lacks merit. appear in each and every page; whether the subscribing
witnesses are three or the will was notarized. All these are facts



that the will itself can reveal, and defects or even omissions Santiago and petitioner Rizalina Gabriel Gonzales are nieces of the
concerning them in the attestation clause can be safely deceased, and that private respondent, with her husband and
disregarded. But the total number of pages, and whether all children, lived with the deceased at the latter's residence prior and
persons required to sign did so in the presence of each other must up to the time of her death.
substantially appear in the attestation clause, being the only The will submitted for probate, Exhibit "F", which is typewritten and
check against perjury in the probate proceedings.[12] (Emphasis in Tagalog, appears to have been executed in Manila on the 15th
supplied) day of April, 1961, or barely two (2) months prior to the death of
Hence, the CA properly sustained the disallowance of the will. Isabel Gabriel. It consists of five (5) pages, including the pages
Moreover, it correctly ruled that Richard pursued the wrong mode whereon the attestation clause and the acknowledgment of the
of appeal as Section 2(a), Rule 41 of the Rules of Court explicitly notary public were written. The signatures of the deceased Isabel
provides that in special proceedings, as in this case, the appeal Gabriel appear at the end of the will on page four and at the left
shall be made by record on appeal. margin of all the pages. The attestation clause, which is found on
page four, reads as follows:
WHEREFORE, premises considered, the petition is DENIED.
"PATUNAY NG MGA SAKSI
SO ORDERED.
"Kaming mga nakalagdang mga saksi o testigo na ang aming mga
Carpio, (Chairperson), Brion, Del Castillo, and Perez, JJ., concur. tinitirahan ay nakasulat sa gawing kanan at kahilira ng aming mga
pangalan sa ibaba nito, ay pagpapatutuo na ipinakilala, ipinaalam
at ipinahayag sa amin ni Isabel Gabriel na ang kasulatang ito na
35 Gonzales v. CA 90 SCRA 183 binubuo ng Limang Dahon (Five Pages) pati na ang dahong ito, na
siya niyang TESTAMENTO AT HULING HABILIN, ngayong ika 15 ng
179 Phil. 149
April, 1961, ay nilagdaan ng nasabing testadora na si Isabel Gabriel
ang nasabing testamento sa ibaba o ilalim ng kasulatan na nasa
ika apat na dahon (page four) at nasa itaas ng patunay naming ito,
at sa kaliwang panig ng lahat at bawat dahon (and on the left hand
FIRST DIVISION
margin of each and every page), sa harap ng lahat at bawat isa sa
[ G.R. No. L-37453, May 25, 1979 ] amin, at kami namang mga saksi ay lumagda sa harap ng nasabing
testadora, at sa harap ng lahat at bawat isa sa amin, sa ilalim ng
RIZALINA GABRIEL GONZALES, PETITIONER, VS. patunay ng mga saksi at sa kaliwang panig ng lahat at bawa't
HONORABLE COURT OF APPEALS AND LUTGARDA dahon ng testamentong ito."
SANTIAGO, RESPONDENTS.
At the bottom thereof, under the heading "Pangalan", are written

the signatures of Matilde D. Orobia, Celso D. Gimpaya and Maria R.
Gimpaya, and opposite the same, under the heading "Tirahan", are
D E C I S I O N their respective places of residence, 961 Highway 54, Philamlife,
for Miss Orobia, and 12 Dagala St., Navotas, Rizal, for the two
GUERRERO, J.: Gimpayas. Their signatures also appear on the left margin of all
the other pages. The will is paged by typewritten words as
follows: "Unang Dahon" and underneath "(Page One)", "Ikalawang
This is a petition for review of the decision of the Court of Appeals, Dahon" and underneath "(Page Two)", etc., appearing at the top of
First Division,[1] promulgated on May 4, 1973 in CA-G.R. No. each page.
36523-R which reversed the decision of the Court of First Instance The will itself provides that the testatrix desired to be buried in the
of Rizal dated December 15, 1964 and allowed the probate of the Catholic Cemetery of Navotas, Rizal in accordance with the rites of
last will and testament of the deceased Isabel Gabriel. the Roman Catholic Church, all expenses to be paid from her
It appears that on June 24, 1961, herein private respondent estate; that all her obligations, if any, be paid; that legacies in
Lutgarda Santiago filed a petition with the Court of First Instance of specified amounts be given to her sister, Praxides Gabriel Vda. de
Rizal, docketed as Special Proceedings No. 3617, for the probate Santiago, her brother Santiago Gabriel, and her nephews and
of a will alleged to have been executed by the deceased Isabel nieces, Benjamin, Salud, Rizalina (herein petitioner), Victoria, Ester,
Gabriel and designating therein petitioner as the principal Andres, all surnamed Gabriel, and Evangelina, Rudyardo, Rosa,
beneficiary and executrix. Andrea, Marcial, Numancia, Verena, all surnamed Santiago. To
There is no dispute in the records that the late Isabel Andres herein private respondent Lutgarda Santiago, who was described
Gabriel died as a widow and without issue in the municipality of in the will by the testatrix as "aking mahal na pamangkin na aking
Navotas, province of Rizal, her place of residence, on June 7, 1961 pinalaki, inalagaan at minahal na katulad ng isang tunay na anak"
at the age of eighty-five (85), having been born in 1876. It is and named as universal heir and executor, were bequeathed all
likewise not controverted that herein private respondent Lutgarda properties and estate, real or personal, already acquired, or to be
acquired, in her (testatrix's) name, after satisfying the expenses,


debts and legacies as aforementioned. in the motion for reconsideration hinges on the appreciation of the

The petition was opposed by Rizalina Gabriel Gonzales, herein evidence. We have carefully re-examined the oral and
petitioner, assailing the document purporting to be the will of the documentary evidence of record. There is no reason to alter the
deceased on the following grounds: findings of fact in the decision of this Court sought to be set
1. that the same is not genuine; and in the alternative2. that the aside.[7]
same was not executed and attested as required by law;3. that, at In her petition before this Court, oppositor Rizalina Gabriel
the time of the alleged execution of the purported will, the Gonzales contends that respondent Court abused its discretion
decedent lacked testamentary capacity due to old age and and/or acted without or in excess of its jurisdiction in reversing the
sickness; and in the second alternative4. that the purported will findings of fact and conclusions of the trial court. The Court, after
was procured through undue and improper pressure and influence deliberating on the petition but without giving due course
on the part of the principal beneficiary, and/or of some other resolved, in the Resolution dated Oct. 11, 1973 to require the
person for her benefit. respondents to comment thereon, which comment was filed on
Lutgarda Santiago filed her Answer to the Opposition on February Nov. 14, 1973. Upon consideration of the allegations, the issues
1, 1962. After trial, the court a quo rendered judgment, the raised and the arguments adduced in the petition, as well as the
summary and dispositive portions of which read: Comment[8] of private respondent thereon, We denied the petition
"Passing in summary upon the grounds advanced by the oppositor, by Resolution on November 26, 1973,[9] the question raised being
this Court finds:"1. That there is no iota of evidence to support the factual and for insufficient showing that the findings of fact by
contention that the purported will of the deceased was procured respondent Court were unsupported by substantial evidence.
through undue and improper pressure and influence on the part of Subsequently, or on December 17, 1973, petitioner Rizalina Gabriel
the petitioner, or of some other person for her benefit;"2. That Gonzales filed a Motion for Reconsideration[10] which private
there is insufficient evidence to sustain the contention that at the respondent answered by way of her Comment or Opposition[11] filed
time of the alleged execution of the purported will, the deceased on January 15, 1974. A Reply and Rejoinder to Reply followed.
lacked testamentary capacity due to old age and sickness;"3. That Finally, on March 27, 1974, We resolved to give due course to the
sufficient and abundant evidence warrants conclusively the fact petition.
that the purported will of the deceased was not executed and The petitioner in her brief makes the following assignment of
attested as required by law;"4. That the evidence is likewise errors:
conclusive that the document presented for probate, Exhibit 'F' is I. The respondent Court of Appeals erred in holding
not the purported will allegedly dictated by the deceased, that the document, Exhibit "F" was executed and
executed and signed by her, and attested by her three attesting attested as required by law when there was absolutely
witnesses on April 15, 1961."WHEREFORE, Exhibit 'F', the document no proof that the three instrumental witnesses were
presented for probate as the last will and testament of the credible witnesses.
deceased Isabel Gabriel, is hereby DISALLOWED." II. The Court of Appeals erred in reversing the
From this judgment of disallowance, Lutgarda Santiago appealed finding of the lower court that the preparation and
to respondent Court, hence, the only issue decided on appeal was execution of the will Exhibit "F", was unexpected and
whether or not the will in question was executed and attested as coincidental.
required by law. The Court of Appeals, upon consideration of the III. The Court of Appeals erred in finding that Atty.
evidence adduced by both parties, rendered the decision now Paraiso was not previously furnished with the names
under review, holding that the will in question was signed and and residence certificates of the witnesses as to
executed by the deceased Isabel Gabriel on April 15, 1961 in the enable him to type such data into the document Exhibit
presence of the three attesting witnesses, Matilde Orobia, Celso "F".
Gimpaya and Maria Gimpaya, signing and witnessing the IV. The Court of Appeals erred in holding that the fact
document in the presence of the deceased and of each other as that the three typewritten lines under the typewritten
required by law,[2] hence allowed probate. words "Pangalan" and "Tinitirahan" were left blank
Oppositor Rizalina Gabriel Gonzales moved for reconsideration of [3]
shows beyond cavil that the three attesting witnesses
the aforesaid decision and such motion was opposed by [4]
were all present in the same occasion.
petitioner-appellant Lutgarda Santiago. Thereafter, parties V. The Court of Appeals erred in reversing the trial
submitted their respective Memoranda,[5] and on August 28, 1973, court's finding that it was incredible that Isabel Gabriel
respondent Court, Former Special First Division, by Resolution [6]
could have dictated the will, Exhibit "F", without any
denied the motion for reconsideration stating that: note or document, to Atty. Paraiso.
"The oppositor-appellee contends that the preponderance of VI. The Court of Appeals erred in reversing the
evidence shows that the supposed last will and testament of finding of the trial court that Matilde Orubia was not
Isabel Gabriel was not executed in accordance with law because physically present when the will, Exhibit "F" was
the same was signed on several occasions, that the testatrix did allegedly signed on April 15, 1961 by the deceased
not sign the will in the presence of all the instrumental witnesses, Isabel Gabriel and the other witnesses Celso Gimpaya
and that said instrumental witnesses did not sign the will in the and Maria Gimpaya.
presence of each other."The resolution of the factual issue raised VII. The Court of Appeals erred in holding that the trial



court gave undue importance to the picture takings as Court of Appeals erred in holding that the document, Exhibit "F",
proof that the will was improperly executed. was executed and attested as required by law when there was
VIII. The Court of Appeals erred in holding that the absolutely no proof that the three instrumental witnesses were
grave contradictions, evasions, and misrepresentations credible witnesses. She argues that the requirement in Article
of witnesses (subscribing and notary) presented by the 806, Civil Code, that the witnesses must be credible is an absolute
petitioner had been explained away, and that the trial requirement which must be complied with before an alleged last
court erred in rejecting said testimonies. will and testament may be admitted to probate and that to be a
IX. The Court of Appeals acted in excess of its credible witness, there must be evidence on record that the
appellate jurisdiction or has so far departed from the witness has a good standing in his community, or that he is honest
accepted and usual course of judicial proceedings, as and upright, or reputed to be trustworthy and reliable. According
to call for an exercise of the power of supervision. to petitioner, unless the qualifications of the witness are first
X. The Court of Appeals erred in reversing the established, his testimony may not be favorably considered.
decision of the trial court and admitting to probate Petitioner contends that the term "credible" is not synonymous
Exhibit "F", the alleged last will and testament of the with "competent" for a witness may be competent under Article
deceased Isabel Gabriel. 820 and 821 of the Civil Code and still not be credible as required
It will be noted from the above assignments of errors that the by Article 805 of the same Code. It is further urged that the term
same are substantially factual in character and content. Hence, at "credible" as used in the Civil Code should receive the same
the very outset, We must again state the oft-repeated and settled and well-known meaning it has under the Naturalization
well-established rule that in this jurisdiction, the factual findings of Law, the latter being a kindred legislation with the Civil Code
the Court of Appeals are not reviewable, the same being binding provisions on wills with respect to the qualifications of witnesses.
and conclusive on this Court. This rule has been stated and We find no merit to petitioner's first assignment of error. Article
reiterated in a long line of cases enumerated in Chan vs. CA 820 of the Civil Code provides the qualifications of a witness to
(L-27488, June 30, 1970, 33 SCRA 737, 743)[12] and Tapas vs. CA the execution of wills while Article 821 sets forth the
(L-22202, February 27, 1976, 69 SCRA 393), and in the more
[13]
disqualification from being a witness to a will. These Articles state:
recent cases of Baptista vs. Carillo and CA (L-32192, July 30, 1976, "Art. 820. Any person of sound mind and of
72 SCRA 214, 217) and Vda. de Catindig vs. Heirs of Catalina the age of eighteen years or more, and not
Roque (L-25777, November 26, 1976, 74 SCRA 83, 88). In the case blind, deaf or dumb, and able to read and
of Chan vs. CA, this Court said: write, may be a witness to the execution of a
"x x x from Guico v. Mayuga, a 1936 decision, the opinion being will mentioned in article 805 of this
penned by the then Justice Recto, it has been well-settled that the Code."Art. 821. The following are disqualified
jurisdiction of this Court in cases brought to us from the Court of from being witnesses to a will:
Appeals is limited to reviewing and revising the errors of law (1) Any person not domiciled in the
imputed to it, its findings of fact being conclusive. More Philippines;
specifically, in a decision exactly a month later, this Court, speaking (2) Those who have been convicted of
through the then Justice Laurel, it was held that the same principle falsification of a document, perjury or false
is applicable, even if the Court of Appeals was in disagreement testimony."
with the lower court as to the weight of the evidence with a Under the law, there is no mandatory requirement that the witness
consequent reversal of its findings of fact. x x x" testify initially or at any time during the trial as to his good standing
Stated otherwise, findings of facts by the Court of Appeals, when in the community, his reputation for trustworthiness and
supported by substantive evidence are not reviewable on appeal reliableness, his honesty and uprightness in order that his
by certiorari. Said findings of the appellate court are final and testimony may be believed and accepted by the trial court. It is
cannot be disturbed by Us particularly because its premises are enough that the qualifications enumerated in Article 820 of the
borne out by the record or based upon substantial evidence and Civil Code are complied with, such that the soundness of his mind
what is more, when such findings are correct. Assignments of can be shown by or deduced from his answers to the questions
errors involving factual issues cannot be ventilated in a review of propounded to him, that his age (18 years or more) is shown from
the decision of the Court of Appeals because only legal questions his appearance, testimony, or competently proved otherwise, as
may be raised. The Supreme Court is not at liberty to alter or well as the fact that he is not blind, deaf or dumb and that he is
modify the facts as set forth in the decision of the Court of Appeals able to read and write to the satisfaction of the Court, and that he
sought to be reversed. Where the findings of the Court of Appeals has none of the disqualifications under Article 821 of the Civil
are contrary to those of the trial court, a minute scrutiny by the Code. We reject petitioner's contention that it must first be
Supreme Court is in order, and resort to duly-proven evidence established in the record the good standing of the witness in the
becomes necessary. The general rule We have thus stated above community, his reputation for trustworthiness and reliableness, his
is not without some recognized exceptions. honesty and uprightness, because such attributes are presumed
Having laid down the above legal precepts as Our foundation, We of the witness unless the contrary is proved otherwise by the
now proceed to consider petitioner's assignments of errors. opposing party.
Petitioner, in her first assignment, contends that the respondent We also reject as without merit petitioner's contention that the



term "credible" as used in the Civil Code should be given the same social or financial position of a person do not disqualify him to be a
meaning it has under the Naturalization Law where the law is competent testamentary witness. (Molo-Pekson and Perez-Nable
mandatory that the petition for naturalization must be supported vs. Tanchuco, et al., 100 Phil. 344; Testate Estate of Raymundo Off.
by two character witnesses who must prove their good standing in Gaz., March 18, 1941, p. 788).
the community, reputation for trustworthiness and reliableness, Private respondent maintains that the qualifications of the three or
their honesty and uprightness. The two witnesses in a petition for more credible witnesses mentioned in Article 805 of the Civil
naturalization are character witnesses in that being citizens of the Code are those mentioned in Article 820 of the same Code, this
Philippines, they personally know the petitioner to be a resident of being obvious from that portion of Article 820 which says "may be
the Philippines for the period of time required by the Act and a a witness to the execution of a will mentioned in Article 805 of this
person of good repute and morally irreproachable and that said Code," and cites authorities that the word "credible" insofar as
petitioner has in their opinion all the qualifications necessary to witnesses to a will are concerned simply means "competent."
become a citizen of the Philippines and is not in any way Thus, in the case of Suntay vs. Suntay, 95 Phil. 500, the Supreme
disqualified under the provisions of the Naturalization Law (Section Court held that "Granting that a will was duly executed and that it
7, Commonwealth Act No. 473 as amended). was in existence at the time of, and not revoked before, the death
In probate proceedings, the instrumental witnesses are not of the testator, still the provisions of the lost will must be clearly
character witnesses for they merely attest the execution of a will or and distinctly proved by at least two credible witnesses. 'Credible
testament and affirm the formalities attendant to said execution. witnesses' mean competent witnesses and not those who testify to
And We agree with the respondent that the rulings laid down in facts from or upon hearsay." (underscoring supplied).
the cases cited by petitioner concerning character witnesses in In Molo-Pekson and Perez-Nable vs. Tanchuco, et al., 100 Phil. 344,
naturalization proceedings are not applicable to instrumental the Supreme Court held that "Section 620 of the same Code of
witnesses to wills executed under the Civil Code of the Philippines. Civil Procedure provides that any person of sound mind, and of
In the case at bar, the finding that each and everyone of the three the age of eighteen years or more, and not blind, deaf, or dumb
instrumental witnesses, namely, Matilde Orobia, Celso Gimpaya and able to read and write, may be a witness to the execution of a
and Maria Gimpaya, are competent and credible is satisfactorily will. This same provision is reproduced in our New Civil Code of
supported by the evidence as found by the respondent Court of 1950, under Art. 820. The relation of employer and employee, or
Appeals, which findings of fact this Tribunal is bound to accept and being a relative to the beneficiary in a will, does not disqualify one
rely upon. Moreover, petitioner has not pointed to any to be a witness to a will. The main qualification of a witness in the
disqualification of any of the said witnesses, much less has it been attestation of wills, if other qualifications as to age, mental capacity
shown that anyone of them is below 18 years of age, of unsound and literacy are present, is that said witness must be credible, that
mind, deaf or dumb, or cannot read or write. is to say, his testimony may be entitled to credence. There is a
It is true that under Article 805 of the New Civil Code, every will, long line of authorities on this point, a few of which We may cite:
other than a holographic will, must be subscribed at the end "A 'credible witness' is one who is not disqualified to testify by
thereof by the testator himself or by the testator's name written by mental incapacity, crime, or other cause. Historical Soc. of
some other person in his presence, and by his express direction, Dauphin County vs. Kelker, 74 A. 619, 226 Pa. 16, 134 Am. St. Rep.
and attested and subscribed by three or more credible witnesses 1010" (Words and Phrases, Vol. 10, p. 340)."As construed by the
in the presence of the testator and of one another. While the common law, a 'credible witness' to a will means a 'competent
petitioner submits that Article 820 and 821 of the New Civil Code witness.' Appeal of Clark, 95 A. 517, 114 Me. 105, Ann. Cas. 1917A,
speak of the competency of a witness due to his qualifications 837." (Ibid, p. 341)."Expression 'credible witness' in relation to
under the first Article and none of the disqualifications under the attestation of wills means 'competent witness'; that is, one
second Article, whereas Article 805 requires the attestation of competent under the law to testify to fact of execution of will.
three or more credible witnesses, petitioner concludes that the Vernon's Ann. Civ. St. 8283. Moos vs. First State Bank of Uvalde,
term credible requires something more than just being competent Tex. Civ. App. 60 S.W. 2d 888, 889." (Ibid, p. 342)"The term
and, therefore, a witness in addition to being competent under 'credible', used in the statute of wills requiring that a will shall be
Articles 820 and 821 must also be a credible witness under Article attested by two credible witnesses means competent; witnesses
805. who, at the time of attesting the will, are legally competent to
Petitioner cites American authorities that competency and testify, in a court of justice, to the facts attested by subscribing the
credibility of a witness are not synonymous terms and one may be will, the competency being determined as of the date of the
a competent witness and yet not a credible one. She exacerbates execution of the will and not of the time it is offered for probate.
that there is no evidence on record to show that the instrumental Smith vs. Goodell, 101 N.E. 255, 256, 258 Ill. 145." (Ibid.)"'Credible
witnesses are credible in themselves, that is, that they are of good witnesses', as used in the statute relating to wills, means
standing in the community since one was a family driver by competent witnesses -- that is, such persons as are not legally
profession and the second the wife of the driver, a housekeeper. It disqualified from testifying in courts of justice, by reason of mental
is true that Celso Gimpaya was the driver of the testatrix and his incapacity, interest, or the commission of crimes, or other cause
wife Maria Gimpaya, merely a housekeeper, and that Matilde excluding them from testifying generally, or rendering them
Orobia was a piano teacher to a grandchild of the testatrix. But incompetent in respect of the particular subject matter or in the
the relation of employer and employee much less the humble particular suit. Hill vs. Chicago Title & Trust Co., 152 N.E. 545, 546,



322 III. 42." (Ibid. p. 343) sufficiently justified and supported by the evidence on record.
In the strict sense, the competency of a person to be an Thus, the alleged unnaturalness characterizing the trip of the
instrumental witness to a will is determined by the statute, that is testatrix to the office of Atty. Paraiso and bringing all the witnesses
Art. 820 and 821, Civil Code, whereas his credibility depends on without previous appointment for the preparation and execution of
the appreciation of his testimony and arises from the belief and the will and that it was coincidental that Atty. Paraiso was available
conclusion of the Court that said witness is telling the truth. Thus, at the moment impugns the finding of the Court of Appeals that
in the case of Vda. de Aroyo v. El Beaterio del Santissimo Rosario although Atty. Paraiso admitted the visit of Isabel Gabriel and of
de Molo, No. L-22005, May 3, 1968, the Supreme Court held and her companions to his office on April 15, 1961 was unexpected as
ruled that: "Competency as a witness is one thing, and it is there was no prior appointment with him, but he explained that he
another to be a credible witness, so credible that the Court must was available for any business transaction on that day and that
accept what he says. Trial courts may allow a person to testify as a Isabel Gabriel had earlier requested him to help her prepare her
witness upon a given matter because he is competent, but may will. The finding of the appellate court is amply based on the
thereafter decide whether to believe or not to believe his testimony of Celso Gimpaya that he was not only informed on the
testimony." morning of the day that he witnessed the will but that it was the
In fine, We state the rule that the instrumental witnesses in order to third time when Isabel Gabriel told him that he was going to
be competent must be shown to have the qualifications under witness the making of her will, as well as the testimony of Maria
Article 820 of the Civil Code and none of the disqualifications Gimpaya that she was called by her husband Celso Gimpaya to
under Article 821 and for their testimony to be credible, that is proceed to Isabel Gabriel's house which was nearby and from said
worthy of belief and entitled to credence, it is not mandatory that house, they left in a car to the lawyer's office, which testimonies
evidence be first established on record that the witnesses have a are recited in the respondent Court's decision.
good standing in the community or that they are honest and The respondent Court further found the following facts: that Celso
upright or reputed to be trustworthy and reliable, for a person is Gimpaya and his wife Maria Gimpaya obtained residence
presumed to be such unless the contrary is established otherwise. certificates a few days before Exhibit "F" was executed. Celso
In other words, the instrumental witnesses must be competent and Gimpaya's residence certificate No. A-5114942 was issued at
their testimonies must be credible before the court allows the Navotas, Rizal on April 13, 1961 while Maria Gimpaya's residence
probate of the will they have attested. We, therefore, reject certificate No. A-5114974 was issued also at Navotas, Rizal on April
petitioner's position that it was fatal for respondent not to have 14, 1961. The respondent Court correctly observed that there was
introduced prior and independent proof of the fact that the nothing surprising in these facts and that the securing of these
witnesses were "credible witnesses", that is, that they have a good residence certificates two days and one day, respectively, before
standing in the community and reputed to be trustworthy and the execution of the will on April 15, 1961, far from showing an
reliable. amazing coincidence, reveals that the spouses were earlier
Under the second, third, fourth, fifth, sixth, seventh and eighth notified that they would be witnesses to the execution of Isabel
assignments of errors, petitioner disputes the findings of fact of Gabriel's will.
the respondent court in finding that the preparation and execution We also agree with the respondent Court's conclusion that the
of the will was expected and not coincidental, in finding that Atty. excursion to the office of Atty. Paraiso was planned by the
Paraiso was not previously furnished with the names and deceased, which conclusion was correctly drawn from the
residence certificates of the witnesses as to enable him to type testimony of the Gimpaya spouses that they started from the
such data into the document Exhibit "F", in holding that the fact Navotas residence of the deceased with a photographer and
that the three typewritten lines under the typewritten words Isabel Gabriel herself, then they proceeded by car to Matilde
"pangalan" and "tinitirahan" were left blank shows beyond cavil Orobia's house in Philamlife, Quezon City to fetch her and from
that the three attesting witnesses were all present in the same there, all the three witnesses (the Gimpayas and Orobia) passed
occasion, in holding credible that Isabel Gabriel could have by a place where Isabel Gabriel stayed for about ten to fifteen
dictated the will without note or document to Atty. Paraiso, in minutes at the clinic of Dr. Chikiamco before they proceeded to
holding that Matilde Orobia was physically present when the will Atty. Cipriano Paraiso's office.
was signed on April 15, 1961 by the deceased Isabel Gabriel and It is also evident from the records, as testified to by Atty. Paraiso
the other witnesses Celso Gimpaya and Maria Gimpaya, in holding that previous to the day that the will was executed on April 15,
that the trial court gave undue importance to the picture takings as 1961, Isabel Gabriel had requested him to help her in the execution
proof that the will was improperly executed, and in holding that the of her will and that he told her that if she really wanted to execute
grave contradictions, evasions and misrepresentations of the her will, she should bring with her at least the Mayor of Navotas,
witnesses (subscribing and notary) presented by the petitioner had Rizal and a Councilor to be her witnesses and that he (Atty.
been explained away. Paraiso) wanted a medical certificate from a physician
Since the above errors are factual, We must repeat what We have notwithstanding the fact that he believed her to be of sound and
previously laid down that the findings of fact of the appellate court dispositive mind. From this evidence, the appellate court rightly
are binding and controlling which We cannot review, subject to concluded, thus: "It is, therefore, clear that the presence of Isabel
certain exceptions which We will consider and discuss hereinafter. Gabriel and her witnesses Matilde Orobia, Celso Gimpaya and
We are convinced that the appellate court's findings are Maria Gimpaya including the photographer in the law office of Atty.



Paraiso was not coincidental as their gathering was pre-arranged question."
by Isabel Gabriel herself." It is also a factual finding of the Court of Appeals in holding that it
As to the appellate court's finding that Atty. Paraiso was not was credible that Isabel Gabriel could have dictated the will,
previously furnished with the names and residence certificates of Exhibit "F", without any note or document to Atty. Paraiso as
the witnesses as to enable him to type such data into the against the contention of petitioner that it was incredible. This
document Exhibit "F", which the petitioner assails as contradictory ruling of the respondent court is fully supported by the evidence
and irreconcilable with the statement of the Court that Atty. Paraiso on record as stated in the decision under review, thus: "Nothing in
was handed a list (containing the names of the witnesses and their the record supports the trial court's unbelief that Isabel Gabriel
respective residence certificates) immediately upon their arrival in dictated her will without any note or document to Atty. Paraiso. On
the law office by Isabel Gabriel and this was corroborated by Atty. the contrary, all the three attesting witnesses uniformly testified
Paraiso himself who testified that it was only on said occasion that that Isabel Gabriel dictated her will to Atty. Paraiso and that other
he received such list from Isabel Gabriel, We cannot agree with than the piece of paper that she handed to said lawyer she had no
petitioner's contention. We find no contradiction for the note or document. This fact jibes with the evidence--which the
respondent Court held that on the occasion of the will-making on trial court itself believed was unshaken--that Isabel Gabriel was of
April 15, 1961, the list was given immediately to Atty. Paraiso and sound disposing memory when she executed her will.
that no such list was given the lawyer in any previous occasion or Exhibit "F" reveals only seven (7) dispositions which are not
date prior to April 15, 1961. complicated but quite simple. The first was Isabel Gabriel's wish to
But whether Atty. Paraiso was previously furnished with the names be interred according to Catholic rites; the second was a general
and residence certificates of the witnesses on a prior occasion or directive to pay her debts if any; the third provided for P1,000.00
on the very occasion and date in April 15, 1961 when the will was for her sister Praxides Gabriel Vda. de Santiago and P2,000.00 for
executed, is of no moment for such data appear in the notarial her brother Santiago Gabriel; the fourth was a listing of her 13
acknowledgment of Notary Public Cipriano Paraiso, subscribed nephews and nieces including oppositor-appellee Rizalina Gabriel
and sworn to by the witnesses on April 15, 1961 following the and the amount for each legatee; the fifth was the institution of the
attestation clause duly executed and signed on the same petitioner-appellant, Lutgarda Santiago as the principal heir
occasion, April 15, 1961. And since Exhibit "F" is a notarial will duly mentioning in general terms seven (7) types of properties; the sixth
acknowledged by the testatrix and the witnesses before a notary disposed of the remainder of her estate which she willed in favor
public, the same is a public document executed and attested of appellant Lutgarda Santiago but prohibiting the sale of such
through the intervention of the notary public and as such public properties to anyone except in extreme situations in which even
document is evidence of the facts in clear, unequivocal manner the sale must be made to close relatives; and the seventh was the
therein expressed. It has in its favor the presumption of regularity. appointment of the appellant Santiago as executrix of the will
To contradict all these, there must be evidence that is clear, without bond. The technical description of the properties in
convincing and more than merely preponderant. (Yturalde vs. paragraph 5 of Exhibit F was not given and the numbers of the
Azurin, 28 SCRA 407). We find no such evidence pointed by certificates of title were only supplied by Atty. Paraiso."
petitioner in the case at bar. It is true that in one disposition, the numbers of the Torrens titles of
Likewise, the conclusion of the Court of Appeals in holding that the properties disposed and the docket number of a special
the fact that the three typewritten lines under the typewritten proceeding are indicated which Atty. Paraiso candidly admitted
words "pangalan" and "tinitirahan" were left blank shows beyond were supplied by him, whereupon petitioner contends that it was
cavil that the three attesting witnesses were all present in the incredible that Isabel Gabriel could have dictated the will Exhibit
same occasion merits Our approval because this conclusion is "F" without any note or document to Atty. Paraiso, considering that
supported and borne out by the evidence found by the appellate Isabel Gabriel was an old and sickly woman more than eighty-one
court, thus: "On page 5 of Exhibit "F", beneath the typewritten years old and had been suffering from a brain injury caused by two
words "names", "Res. Tax Cert.", "date issued" and "place issued" severe blows at her head and died of terminal cancer a few weeks
the only name of Isabel Gabriel with Residence Tax Certificate No. after the execution of Exhibit "F". While We can rule that this is a
A-5113274 issued on February 24, 1961 at Navotas, Rizal appears finding of fact which is within the competency of the respondent
to be in typewritten form while the names, residence tax certificate appellate court in determining the testamentary capacity of the
numbers, dates and places of issuance of said certificates testatrix and is, therefore, beyond Our power to revise and review,
pertaining to the three (3) witnesses were personally handwritten We nevertheless hold that the conclusion reached by the Court of
by Atty. Paraiso. Again, this coincides with Atty. Paraiso's Appeals that the testatrix dictated her will without any note or
testimony that he had earlier advised Isabel Gabriel to bring with memorandum appears to be fully supported by the following facts
her at least the Mayor and a Councilor of Navotas, Rizal to be her or evidence appearing on record. Thus, Isabel Gabriel, despite
witnesses for he did not know beforehand the identities of the her age, was particularly active in her business affairs as she
three attesting witnesses until the latter showed up at his law actively managed the affairs of the movie business Isabelita
office with Isabel Gabriel on April 15, 1961. Atty. Paraiso's Theater, paying the aparatistas herself until June 4, 1961, 3 days
claim--which was not controverted that he wrote down in his own before her death. She was the widow of the late Eligio Naval,
hand the date appearing on page 5 of Exhibit "F" dissipates any former Governor of Rizal Province and acted as co-administratrix in
lingering doubt that he prepared and ratified the will on the date in the Intestate Estate of her deceased husband Eligio Naval. The


text of the will was in Tagalog, a dialect known and understood by execution and attestation of the will. The fact that Miss Orobia
her and in the light of all the circumstances, We agree with the mistakenly identified the photographer as Cesar Mendoza
respondent Court that the testatrix dictated her will without any scarcely detracts from her testimony that she was present when
note or memorandum, a fact unanimously testified to by the three the will was signed because what matters here is not the
attesting witnesses and the notary public himself. photographer but the photograph taken which clearly portrays
Petitioner's sixth assignment of error is also bereft of merit. The Matilde Orobia herself, her co-witnesses Celso Gimpaya and Maria
evidence, both testimonial and documentary is, according to the Gimpaya, Isabel Gabriel and Atty. Paraiso." Further, the respondent
respondent court, overwhelming that Matilde Orobia was Court correctly held: "The trial court gave undue importance to
physically present when the will was signed on April 15, 1961 by the picture-takings, jumping therefrom to the conclusion that the
the testatrix and the other two witnesses, Celso Gimpaya and will was improperly executed. The evidence, however, heavily
Maria Gimpaya. Such factual finding of the appellate court is very points to only one occasion of the execution of the will on April 15,
clear, thus: "On the contrary, the record is replete with proof that 1961 which was witnessed by Matilde Orobia, Celso Gimpaya and
Matilde Orobia was physically present when the will was signed by Maria Gimpaya. These witnesses were quite emphatic and
Isabel Gabriel on April 15, 1961 along with her co-witnesses Celso positive when they spoke of this occasion. Hence, their
Gimpaya and Maria Gimpaya. The trial court's conclusion that identification of some photographs wherein they all appeared
Orobia's admission that she gave piano lessons to the child of the along with Isabel Gabriel and Atty. Paraiso was superfluous."
appellant on Wednesdays and Saturdays and that April 15, 1961 Continuing, the respondent Court declared: "It is true that the
happened to be a Saturday for which reason Orobia could not second picture-taking was disclosed at the cross examination of
have been present to witness the will on that day--is purely Celso Gimpaya. But this was explained by Atty. Paraiso as a
conjectural. Witness Orobia did not admit having given piano reenactment of the first incident upon the insistence of Isabel
lessons to the appellant's child every Wednesday and Saturday Gabriel. Such reenactment where Matilde Orobia was admittedly
without fail. It is highly probable that even if April 15, 1961 were a no longer present was wholly unnecessary if not pointless. What
Saturday, she gave no piano lessons on that day for which reason was important was that the will was duly executed and witnessed
she could have witnessed the execution of the will. Orobia spoke on the first occasion on April 15, 1961," and We agree with the
of occasions when she missed giving piano lessons and had to Court's rationalization in conformity with logic, law and
make up for the same. Anyway, her presence at the law office of jurisprudence which do not require picture-taking as one of the
Atty. Paraiso was in the morning of April 15, 1961 and there was legal requisites for the execution or probate of a will.
nothing to preclude her from giving piano lessons on the Petitioner points to alleged grave contradictions, evasions and
afternoon of the same day in Navotas, Rizal." misrepresentations of witnesses in their respective testimonies
In addition to the testimony of Matilde Orobia, Celso Gimpaya and before the trial court. On the other hand, the respondent Court of
Maria Gimpaya that Matilde was present on April 15, 1961 and that Appeals held that said contradictions, evasions and
she signed the attestation clause to the will and on the left-hand misrepresentations had been explained away. Such discrepancies
margin of each of the pages of the will, the documentary evidence as in the description of the typewriter used by Atty. Paraiso which
which is the will itself, the attestation clause and the notarial he described as "elite" which to him meant big letters which are of
acknowledgment overwhelmingly and convincingly prove such the type in which the will was typewritten but which was identified
fact that Matilde Orobia was present on that day of April 15, 1961 by witness Jolly Bugarin of the N.B.I. as "pica", the mistake in
and that she witnessed the will by signing her name thereon and mentioning the name of the photographer by Matilde Orobia to be
acknowledged the same before the notary public, Atty. Cipriano P. Cesar Mendoza when actually it was Benjamin Cifra, Jr.-- these are
Paraiso. The attestation clause which Matilde Orobia signed is the indeed unimportant details which could have been affected by the
best evidence as to the date of signing because it preserves in lapse of time and the treachery of human memory such that by
permanent form a recital of all the material facts attending the themselves would not alter the probative value of their testimonies
execution of the will. This is the very purpose of the attestation on the true execution of the will, (Pascual vs. dela Cruz, 28 SCRA
clause which is made for the purpose of preserving in permanent 421, 424) for it cannot be expected that the testimony of every
form, a record of the facts attending the execution of the will, so person will be identical and coinciding with each other with regard
that in case of failure in the memory of the subscribing witnesses, to details of an incident and that witnesses are not expected to
or other casualty they may still be proved. (Thompson on Wills, remember all details. Human experience teach us "that
2nd ed., Sec. 132; Leynez vs. Leynez, 68 Phil. 745). contradictions of witnesses generally occur in the details of certain
As to the seventh error assigned by petitioner faulting the Court of incidents, after a long series of questionings, and far from being an
Appeals in holding that the trial court gave undue importance to evidence of falsehood constitute a demonstration of good faith.
the picture-takings as proof that the will was improperly executed, Inasmuch as not all those who witness an incident are impressed
We agree with the reasoning of the respondent court that: in like manner, it is but natural that in relating their impressions,
"Matilde Orobia's identification of the photographer as "Cesar they should not agree in the minor details; hence the
Mendoza", contrary to what the other two witnesses (Celso and contradictions in their testimony." (Lopez vs. Liboro, 81 Phil. 429).
Maria Gimpaya) and Atty. Paraiso said that the photographer was It is urged of Us by the petitioner that the findings of the trial court
Benjamin Cifra, Jr., is at worst a minor mistake attributable to lapse should not have been disturbed by the respondent appellate court
of time. The law does not require a photographer for the because the trial court was in a better position to weigh and



evaluate the evidence presented in the course of the trial. As a the case at bar in its full force and effect, without qualification or
general rule, petitioner is correct but it is subject to reservation. The above holding simply synthesizes the resolutions
well-established exceptions. The right of the Court of Appeals to We have heretofore made in respect to petitioner's previous
review, alter and reverse the findings of the trial court where the assignments of error and to which We have disagreed and,
appellate court, in reviewing the evidence has found that facts and therefore, rejected.
circumstances of weight and influence have been ignored and The last assignments of error of petitioner must necessarily be
overlooked and the significance of which have been rejected by Us as We find the respondent Court acted properly
misinterpreted by the trial court, cannot be disputed. Findings of and correctly and has not departed from the accepted and usual
facts made by trial courts particularly when they are based on course of judicial proceedings as to call for the exercise of the
conflicting evidence whose evaluation hinges on questions of power of supervision by the Supreme Court, and as We find that
credibility of contending witnesses lies peculiarly within the the Court of Appeals did not err in reversing the decision of the
province of trial courts and generally, the appellate court should trial court and admitting to probate Exhibit "F", the last will and
not interfere with the same. In the instant case, however, the testament of the deceased Isabel Gabriel.
Court of Appeals found that the trial court had overlooked and We rule that the respondent Court's factual findings upon its
misinterpreted the facts and circumstances established in the summation and evaluation of the evidence on record is
record. Whereas the appellate court said that "Nothing in the unassailable that: "From the welter of evidence presented, we are
record supports the trial court's unbelief that Isabel Gabriel convinced that the will in question was executed on April 15, 1961
dictated her will without any note or document to Atty. Paraiso;" in the presence of Matilde Orobia, Celso Gimpaya and Maria
that the trial court's conclusion that Matilde Orobia could not have Gimpaya signing and witnessing the same in the presence of each
witnessed anybody signing the alleged will or that she could not other as required by law." Specifically, We affirm that on April 15,
have witnessed Celso Gimpaya and Maria Gimpaya sign the same 1961 the testatrix Isabel Gabriel, together with Matilde Orobia,
or that she witnessed only the deceased signing it, is a conclusion Celso Gimpaya and his wife Maria Gimpaya, and a photographer
based not on facts but on inferences; that the trial court gave proceeded in a car to the office of Atty. Cipriano Paraiso at the
undue importance to the picture-takings, jumping therefrom to the Bank of P.I. Building, Manila in the morning of that day; that on the
conclusion that the will was improperly executed and that there is way, Isabel Gabriel obtained a medical certificate from one Dr.
nothing in the entire record to support the conclusion of the court Chikiamko which she gave to Atty. Paraiso upon arriving at the
a quo that the will-signing occasion was a mere coincidence and latter's office and told the lawyer that she wanted her will to be
that Isabel Gabriel made an appointment only with Matilde Orobia made; that Atty. Paraiso asked Isabel Gabriel to dictate what she
to witness the signing of her will, then it becomes the duty of the wanted to be written in the will and the attorney wrote down the
appellate court to reverse findings of fact of the trial court in the dictation of Isabel Gabriel in Tagalog, a language known to and
exercise of its appellate jurisdiction over the lower courts. spoken by her; that Atty. Paraiso read back to her what he wrote
Still the petitioner insists that the case at bar is an exception to the as dictated and she affirmed their correctness; the lawyer then
rule that the judgment of the Court of Appeals is conclusive as to typed the will and after finishing the document, he read it to her
the facts and cannot be reviewed by the Supreme Court. Again and she told him that it was alright; that thereafter, Isabel Gabriel
We agree with the petitioner that among the exceptions are: (1) signed her name at the end of the will in the presence of the three
when the conclusion is a finding grounded entirely on witnesses Matilde Orobia, Celso Gimpaya and Maria Gimpaya and
speculations, surmises or conjectures; (2) when the inference is also at the left-hand margin of each and every page of the
manifestly mistaken, absurd or impossible; (3) when there is a document in the presence also of the said three witnesses; that
grave abuse of discretion; (4) when the judgment is based on a thereafter Matilde Orobia attested the will by signing her name at
misapprehension of facts; (5) when the findings of fact are the end of the attestation clause and at the left-hand margin of
conflicting; (6) when the Court of Appeals, in making its findings, pages 1, 2, 3 and 5 of the document in the presence of Isabel
went beyond the issues of the case and the same is contrary to Gabriel and the other two witnesses, Celso Gimpaya and Maria
the admissions of both appellant and appellee. (Roque vs. Buan, Gimpaya; then, Celso Gimpaya signed also the will at the bottom
et al., G.R. No. L-22459, Oct. 31, 1967; Ramos vs. Pepsi Cola of the attestation clause and at the left-hand margin of the other
Bottling Co., G.R. No. L-22533, Feb. 9, 1967; Hilario, Jr. vs. City of pages of the document in the presence of Isabel Gabriel, Matilde
Manila, G. R. No. L-19570, Sept. 14, 1967). Orobia and Maria Gimpaya; that Maria Gimpaya followed suit,
Petitioner's insistence is without merit. We hold that the case at signing her name at the foot of the attestation clause and at the
bar does not fall within any of the exceptions enumerated above. left-hand margin of every page in the presence of Isabel Gabriel,
We likewise hold that the findings of fact of the respondent Matilde Orobia and Celso Gimpaya; that thereafter, Atty. Paraiso
appellate court are fully supported by the evidence on record. notarized the will as Notary Public, entering the will as Doc. No.
The conclusions are fully sustained by substantial evidence. We 458, Page No. 94, Book No. IV, Series of 1961, in his Notarial
find no abuse of discretion and We discern no misapprehension of Register. On the occasion of the execution and attestation of the
facts. The respondent Court's findings of fact are not conflicting. will, a photographer took pictures, one Exhibit "G", depicting
Hence, the well-established rule that the decision of the Court of Matilde Orobia, the testatrix Isabel Gabriel, Celso Gimpaya, Maria
Appeals and its findings of fact are binding and conclusive and Gimpaya and Atty. Paraiso, taken on said occasion of the signing
should not be disturbed by this Tribunal and it must be applied in of the will, and another, Exhibit "H", showing Matilde Orobia


signing the will on a table with Isabel Gabriel, Celso Gimpaya and Hon. Jose C. Colayco, Presiding Judge Court of First Instance of
Maria Gimpaya sitting around the table. Atty. Paraiso, after Manila, Branch XXI disallowing the probate of the holographic Will
finishing the notarial act, then delivered the original to Isabel of the deceased Bibiana Roxas de Jesus.
Gabriel and retained the other copies for his file and notarial
register. A few days following the signing of the will, Isabel The antecedent facts which led to the filing of this petition are
Gabriel, Celso Gimpaya and another photographer arrived at the undisputed.
office of Atty. Paraiso and told the lawyer that she wanted another
picture taken because the first picture did not turn out good. The After the death of spouses Andres G. de Jesus and Bibiana Roxas
lawyer told her that this cannot be done because the will was de Jesus, Special Proceeding No. 81503 entitled "In the Matter of
already signed but Isabel Gabriel insisted that a picture be taken, the Intestate Estate of Andres G. de Jesus and Bibiana Roxas de
so a simulated signing was performed during which incident Jesus" was filed by petitioner Simeon R. Roxas, the brother of the
Matilde Orobia was not present. deceased Bibiana Roxas de Jesus.
Petitioner's exacerbation centers on the supposed incredibility of
the testimonies of the witnesses for the proponent of the will, their On March 26, 1973, petitioner Simeon R. Roxas was appointed
alleged evasions, inconsistencies and contradictions. But in the administrator. After Letters of Administration had been granted to
case at bar, the three instrumental witnesses who constitute the the petitioner, he delivered to the lower court a document
best evidence of the will-making have testified in favor of the purporting to be the holographic Will of the deceased Bibiana
probate of the will. So has the lawyer who prepared it, one Roxas de Jesus.
learned in the law and long in the practice thereof, who thereafter
notarized it. All of them are disinterested witnesses who stand to On May 26, 1973, respondent Judge Jose Colayco set the hearing
receive no benefit from the testament. The signatures of the of the probate of the holographic Will on July 21, 1973.
witnesses and the testatrix have been identified on the will and
there is no claim whatsoever and by anyone, much less the Petitioner Simeon R. Roxas testified that after his appointment as
petitioner, that they were not genuine. In the last and final administrator, he found a notebook belonging to the deceased
analysis, the herein conflict is factual and We go back to the rule Bibiana R. de Jesus and that on pages 21, 22, 23 and 24 thereof, a
that the Supreme Court cannot review and revise the findings of letter-will addressed to her children and entirely written and
fact of the respondent Court of Appeals. signed in the handwriting of the deceased Bibiana R. de Jesus
WHEREFORE, IN VIEW OF THE FOREGOING, the judgment was found. The will is dated "FEB./61" and states: "This is my will
appealed from is hereby AFFIRMED, with costs against the which I want to be respected although it is not written by a lawyer.
petitioner. x x x”
SO ORDERED.
Teehankee, (Chairman), Makasiar, De Castro, and The testimony of Simeon R. Roxas was corroborated by the
Melencio-Herrera, JJ., concur. testimonies of Pedro Roxas de Jesus and Manuel Roxas de Jesus
who likewise testified that the letter dated "FEB. / 61" is the
holographic Will of their deceased mother, Bibiana R. de Jesus.
36 Roxas v. de Jesus G.R. No. L-38338 Jan 28, Both recognized the handwriting of their mother and positively
1985 identified her signature. They further testified that their deceased
G.R. No. L-38338
mother understood English, the language in which the holographic

Will is written, and that the date "FEB. / 61" was the date when said
Will was executed by their mother.

FIRST DIVISION Respondent Luz R. Henson, another compulsory heir filed an
"opposition to probate" assailing the purported holographic Will of
[ G.R. No. L-38338, January 28, 1985 ]
Bibiana R. de Jesus because - (a) it was not executed in
accordance with law, (b) it was executed through force,
IN THE MATTER OF THE INTESTATE ESTATE OF ANDRES intimidation and/or under duress, undue influence and improper
G. DE JESUS AND BIBIANA ROXAS DE JESUS, SIMEON R.
pressure, and (c) the alleged testatrix acted by mistake and/or did
ROXAS & PEDRO ROXAS DE JESUS, PETITIONERS, VS.
ANDRES R. DE JESUS, JR., RESPONDENT. not intend, nor could have intended the said Will to be her last Will
and testament at the time of its execution.

On August 24, 1973, respondent Judge Jose C. Colayco issued an
D E C I S I O N
order allowing the probate of the holographic Will which he found
to have been duly executed in accordance with law.
GUTIERREZ, JR., J.:
Respondent Luz Roxas de Jesus filed a motion for reconsideration
This is a petition for certiorari to set aside the order of respondent alleging inter alia that the alleged holographic Will of the



deceased Bibiana R. de Jesus was not dated as required by Article pressure and influence upon the testator.

810 of the Civil Code. She contends that the law requires that the
Will should contain the day, month, and year of its execution and "This objective is in accord with the modern tendency with respect
that this should be strictly complied with. to the formalities in the execution of wills." (Report of the Code
Commission, p. 103)In Justice Capistrano's concurring opinion in
On December 10, 1973, respondent Judge Colayco reconsidered Heirs of Raymundo Castro v. Bustos (27 SCRA 327) he emphasized
his earlier order and disallowed the probate of the holographic Will that:
on the ground that the word "dated" has generally been held to xxx xxx xxx.
include the month, day, and year. The dispositive portion of the
order reads: "x x x The law has a tender regard for the will of the testator
"WHEREFORE, the document purporting to be the holographic Will expressed in his last will and testament on the ground that any
of Bibiana Roxas de Jesus, is hereby disallowed for not having disposition made by the testator is better than that which the law
been executed as required by the law. The order of August 24, can make. For this reason, intestate succession is nothing more
1973 is hereby set aside."The only issue is whether or not the date than a disposition based upon the presumed will of the
"FEB. / 61" appearing on the holographic Will of the deceased decedent."Thus, the prevailing policy is to require satisfaction of
Bibiana Roxas de Jesus is a valid compliance with the Article 810 the legal requirements in order to guard against fraud and bad
of the Civil Code which reads: faith but without undue or unnecessary curtailment of
ART. 810. A person may execute a holographic will which must be testamentary privilege (Icasiano v. Icasiano, 11 SCRA 422). If a Will
entirely written, dated, and signed by the hand of the testator has been executed in substantial compliance with the formalities
himself. It is subject to no other form, and may be made in or out of of the law, and the possibility of bad faith and fraud in the exercise
the Philippines, and need not be witnessed."The petitioners thereof is obviated, said Will should be admitted to probate (Rey v.
contend that while Article 685 of the Spanish Civil Code and Cartagena, 56 Phil. 282). Thus,
Article 688 of the Old Civil Code require the testator to state in his xxx xxx xxx
holographic Will the "year, month, and day of its execution", the
present Civil Code omitted the phrase "Año, mes y dia" and simply "x x x More than anything else, the facts and circumstances of
requires that the holographic Will should be dated. The petitioners record are to be considered in the application of any given rule. If
submit that the liberal construction of the holographic Will should the surrounding circumstances point to a regular execution of the
prevail. will, and the instrument appears to have been executed
substantially in accordance with the requirements of the law, the
Respondent Luz Henson on the other hand submits that the inclination should, in the absence of any suggestion of bad faith,
purported holographic Will is void for non-compliance with Article forgery or fraud, lean towards its admission to probate, although
810 of the New Civil Code in that the date must contain the year, the document may suffer from some imperfection of language, or
month, and day of its execution. The respondent contends that other non-essential defect. x x x" (Leynez v. Leynez, 68 Phil. 745).If
Article 810 of the Civil Code was patterned after Section 1277 of the testator, in executing his Will, attempts to comply with all the
the California Code and Section 1588 of the Louisiana Code requisites, although compliance is not literal, it is sufficient if the
whose Supreme Courts had consistently ruled that the required objective or purpose sought to be accomplished by such requisite
date includes the year, month, and day, and that if any of these is is actually attained by the form followed by the testator.
wanting, the holographic Will is invalid. The respondent further
contends that the petitioner cannot plead liberal construction of The purpose of the solemnities surrounding the execution of Wills
Article 810 of the Civil Code because statutes prescribing the has been expounded by this Court in Abangan v. Abangan, 40
formalities to be observed in the execution of holographic Wills are Phil. 476) where we ruled that:
strictly construed. "The object of the solemnities surrounding the execution of wills is
to close the door against bad faith and fraud, to avoid substitution
We agree with the petitioner. of wills and testaments and to guaranty their truth and authenticity.
x x x"In particular, a complete date is required to provide against
This will not be the first time that this Court departs from a strict such contingencies as that of two competing Wills executed on the
and literal application of the statutory requirements regarding the same day, or of a testator becoming insane on the day on which a
due execution of Wills. We should not overlook the liberal trend of Will was executed (Velasco v. Lopez, 1 Phil. 720). There is no such
the Civil Code in the manner of execution of Wills, the purpose of contingency in this case.
which, in case of doubt is to prevent intestacy -
"The underlying and fundamental objectives permeating the We have carefully reviewed the records of this case and found no
provisions of the law on wills in this Project consists in the evidence of bad faith and fraud in its execution nor was there any
liberalization of the manner of their execution with the end in view substitution of Wills and Testaments. There is no question that the
of giving the testator more freedom in expressing his last wishes, holographic Will of the deceased Bibiana Roxas de Jesus was
but with sufficient safeguards and restrictions to prevent the entirely written, dated, and signed by the testatrix herself and in a
commission of fraud and the exercise of undue and improper language known to her. There is also no question as to its



genuineness and due execution. All the children of the testatrix In the name of God, Amen.
agree on the genuineness of the holographic Will of their mother I, Natividad K. Kalaw, Filipino, 63 years of age, single, and a
and that she had the testamentary capacity at the time of the resident of Lipa City, living of sound and disposing mind and
execution of said Will. The objection interposed by the memory, do hereby declare this to be my last will and testament.
oppositor-respondent Luz Henson is that the holographic Will is 1. It is my will that I be buried in the cemetery of the catholic church
fatally defective because the date "FEB. / 61" appearing on the of Lipa City. In accordance with the rites of said Church, and that
holographic Will is not sufficient compliance with Article 810 of the my executrix hereinafter named provide and erect at the expense
Civil Code. This objection is too technical to be entertained. of my state a suitable monument to perpetuate my memory.
2. I give, device and bequeath all my property real and personal to
As a general rule, the "date" in a holographic Will should include my beloved brother Gregorio Kalaw, to have and to hold the same
the day, month, and year of its execution. However, when as in the as his property absolutely and unconditionally.
case at bar, there is no appearance of fraud, bad faith, undue 3. I hereby appoint my said brother Gregorio Kalaw, as sole
influence and pressure and the authenticity of the Will is executrix of this my last will and testament, and it is my will that
established and the only issue is whether or not the date "FEB. / said executrix be exempted from filing a bond.
61" appearing on the holographic Will is a valid compliance with In witness where of I have hereunto set my hand this 24th day of
Article 810 of the Civil Code, probate of the holographic Will Dec., 1968.
should be allowed under the principle of substantial compliance. Natividad K. Kalaw
Testatrix
WHEREFORE, the instant petition is GRANTED. The Order
Witnesses:
appealed from is REVERSED and SET ASIDE and the order
allowing the probate of the holographic Will of the deceased Lydia S. Pecio
Bibiana Roxas de Jesus is reinstated. The holographic Will, as first written, named ROSA K. Kalaw, a
sister of the testatrix as her sole heir. Hence, on November 10,
SO ORDERED. 1971, petitioner ROSA K. Kalaw opposed probate alleging, in
substance, that the holographic Will contained alterations,
corrections, and insertions without the proper authentication by
Teehankee, (Chairman), Melencio-Herrera, Plana, Relova, and De the full signature of the testatrix as required by Article 814 of the
la Fuente, JJ., concur. Civil Code reading:
"Art. 814. In case of any insertion, cancellation, erasure or alteration
37 Kalaw v. Relova G.R. No. L-40207 Sept 28, 1984 in a holographic will, the testator must authenticate the same by
(132 SCRA 237) his full signature."
217 Phil. 232 ROSA's position was that the holographic Will, as first written,
should be given effect and probated so that she could be the sole
heir thereunder.
After trial, respondent Judge denied probate in an Order, dated
September 3, 1973, reading in part:
FIRST DIVISION
"The document Exhibit 'C' was submitted to the National Bureau of
[ G.R. No. L-40207, September 28, 1984 ] Investigation for examination. The NBI reported that the
handwriting, the signature, the insertions and/or additions and the
ROSA K. KALAW, PETITIONER, VS. HON. JUDGE initial were made by one and the same person. Consequently,
BENJAMIN RELOVA, PRESIDING JUDGE OF THE CFI OF Exhibit 'C' was the handwriting of the decedent, Natividad K.
BATANGAS, BRANCH VI, LIPA CITY, AND GREGORIO K.
Kalaw. The only question is whether the will, Exhibit ‘C’, should be
KALAW, RESPONDENTS.
admitted to probate although the alterations and/or insertions or
D E C I S I O N additions above-mentioned were not authenticated by the full
signature of the testatrix pursuant to Art. 814 of the Civil Code. The

petitioner contends that the oppositors are estopped to assert the
MELENCIO-HERRERA, J.:
provision of Art. 814 on the ground that they themselves agreed

thru their counsel to submit the Document to the NBI FOR
On September 1, 1971, private respondent GREGORIO K. KALAW,
EXAMINATIONS. This is untenable. The parties did not agree, nor
claiming to be the sole heir of his deceased sister, Natividad K.
was it impliedly understood, that the oppositors would be in
Kalaw, filed a petition before the Court of First Instance of
estoppel.
Batangas, Branch VI, Lipa City, for the probate of her holographic
"The Court finds, therefore, that the provision of Article 814 of the
Will executed on December 24, 1968.
Civil Code is applicable to Exhibit 'C'. Finding the insertions,

alterations and/or additions in Exhibit 'C' not to be authenticated
The holographic Will reads in full as follows:
by the full signature of the testatrix Natividad K. Kalaw, the Court
My Last Will and Testament
will deny the admission to probate of Exhibit 'C'.


"WHEREFORE, the petition to probate Exhibit 'C' as the vinieran a anular este, y ya porque el precepto contenido en dicho
holographic will of Natividad K. Kalaw is hereby denied." parrafo ha de entenderse en perfecta armonia y congruencia con
"SO ORDERED." el art. 26 de la ley del Notariado, que declara nulas las adiciones,
From that Order, GREGORIO moved for reconsideration arguing apostillas, entrerrenglonados, raspaduras y tachados en las
that since the alterations and/or insertions were made by the escrituras matrices, siempre que no se salven en la forma
testatrix, the denial to probate of her holographic Will would be prevenida, pero no el documento que las contenga, y con mayor
contrary to her right of testamentary disposition. Reconsideration motivo cuando las palabras enmendadas, tachadas o
was denied in an Order, dated November 2, 1973, on the ground entrerrenglonadas no tengan importancia ni susciten duda alguna
that "Article 814 of the Civil Code being clear and explicit, (it) acerca del pensamiento del testador, o constituyan meros
requires no necessity for interpretation." accidentes de ortografia o de purez escrituraria, sin trascendencia
From that Order, dated September 3, 1973, denying probate, and alguna(l).
the Order dated November 2, 1973 denying reconsideration, "Mas para que sea aplicable la doctrina de excepcion contenida
ROSA filed this Petition for Review on Certiorari on the sole legal en este ultimo fallo, es preciso que las tachaduras, enmiendas o
question of whether or not the original unaltered text after entrerrenglonados sin salvar, sean de palabras que no afecten,
subsequent alterations and insertions were voided by the Trial alteren ni varien de modo substancial la expresa voluntad del
Court for lack of authentication by the full signature of the testatrix, testador manifiesta en el documento. Asi lo advierte la sentencia
should be probated or not, with her as sole heir. de 29 de Noviembre de 1916, que declara nulo un testamento
Ordinarily, when a number of erasures, corrections, and olografo por no estar salvada por el testador la enmienda del
interlineations made by the testator in a holographic Will have not guarismo ultimo del año en que fue extendido"[3] (Italics ours).
been noted under his signature, x x x the Will is not thereby WHEREFORE, this Petition is hereby dismissed and the Decision of
invalidated as a whole, but at most only as respects the particular respondent Judge, dated September 3, 1973, is hereby affirmed in
words erased, corrected or interlined.[1] Manresa gave an identical toto. No costs.
commentary when he said "la omision de la salvedad no anula el SO ORDERED.
testamento, segun la regla de jurisprudencia establecida en la Plana, Gutierrez, Jr., and De La Fuente, JJ., concur.
[2]
sentencia de 4 de Abril de 1895." Teehankee, J., (Chairman), concurs in a separate opinion.
However, when as in this case, the holographic Will in dispute had Relova, J., took no part.
only one substantial provision, which was altered by substituting
the original heir with another, but which alteration did not carry the

requisite of full authentication by the full signature of the testator, 38 Ajero v. CA (1994) 236 SCRA 488
the effect must be that the entire Will is voided or revoked for the G.R. No. 106720
simple reason that nothing remains in the Will after that which
could remain valid. To state that the Will as first written should be
given efficacy is to disregard the seeming change of mind of the
testatrix. But that change of mind can neither be given effect
SECOND DIVISION
because she failed to authenticate it in the manner required by law
by affixing her full signature. [ G.R. No. 106720, September 15, 1994 ]
The ruling in Velasco, supra, must be held confined to such
insertions, cancellations, erasures or alterations in a holographic SPOUSES ROBERTO AND THELMA AJERO, PETITIONERS,
Will, which affect only the efficacy of the altered words themselves VS. THE COURT OF APPEALS AND CLEMENTE SAND,
RESPONDENTS.
but not the essence and validity of the Will itself. As it is, with the

erasures, cancellations and alterations made by the testatrix
herein, her real intention cannot be determined with certitude. As
Manresa had stated in his commentary on Article 688 of the D E C I S I O N
Spanish Civil Code, whence Article 814 of the new Civil Code was

derived: PUNO, J.:
"x x x No infringe lo dispuesto en este articulo del Codigo (el 688)
la sentencia que no declara la nulidad de un testamento olografo
que contenga palabras tachadas, enmendadas o entre renglones, This is an appeal by certiorari from the Decision of the Court of
no salvadas por el testador bajo su firma, segun previene el Appeals[1] in CA-G.R. CV No. 22840, dated March 30, 1992, the
parrafo tercero del mismo, porque, en realidad, tal omision solo dispositive portion of which reads:
puede afectar a la validez o eficacia de tales palabras, y nunca al “PREMISES CONSIDERED, the questioned decision of November
testamento mismo, ya por estar esa disposicion en parrafo aparte 19, 1988 of the trial court is hereby REVERSED and SET ASIDE,
de aquel que determina las condiciones necesarias para la validez and the petition for probate is hereby DISMISSED. No costs."
del testamento olografo, ya porque, de admitir lo contrario, se The earlier Decision was rendered by the RTC of Quezon City,
llegaria al absurdo de que pequeñas enmiendas no salvadas, que Branch 94,[2] in Sp. Proc. No. Q-37171, and the instrument submitted
en nada afectasen a la parte esencial y respectiva del testamento,



for probate is the holographic will of the late Annie Sand, who died Clemente Sand himself has testified in Court that the testatrix was

on November 25, 1982. completely in her sound mind when he visited her during her
In the will, decedent named as devisees, the following: petitioners birthday celebration in 1981, at or around which time the
Roberto and Thelma Ajero, private respondent Clemente Sand, holographic will in question was executed by the testatrix. To be of
Meriam S. Arong, Leah Sand, Lilia Sand, Edgar Sand, Fe Sand, Lisa sound mind, it is sufficient that the testatrix, at the time of making
S. Sand, and Dr. Jose Ajero, Sr., and their children. the will, knew the value of the estate to be disposed of, the proper
On January 20, 1983, petitioners instituted Sp. Proc. No. Q-37171, object of her bounty, and the character of the testamentary act
for allowance of decedent's holographic will. They alleged that at xxx. The will itself shows that the testatrix even had detailed
the time of its execution, she was of sound and disposing mind, knowledge of the nature of her estate. She even identified the lot
not acting under duress, fraud or undue influence, and was in number and square meters of the lots she had conveyed by will.
every respect capacitated to dispose of her estate by will. The objects of her bounty were likewise identified explicitly. And
Private respondent opposed the petition on the grounds that: considering that she had even written a nursing book which
neither the testament's body nor the signature therein was in contained the law and jurisprudence on will and succession, there
decedent's handwriting; it contained alterations and corrections is more than sufficient showing that she knows the character of
which were not duly signed by decedent; and, the will was the testamentary act."In this wise, the question of identity of the
procured by petitioners through improper pressure and undue will, its due execution and the testamentary capacity of the
influence. The petition was likewise opposed by Dr. Jose Ajero. He testatrix has to be resolved in favor of the allowance of probate of
contested the disposition in the will of a house and lot located in the will submitted herein."Likewise, no evidence was presented to
Cabadbaran, Agusan Del Norte. He claimed that said property show sufficient reason for the disallowance of herein holographic
could not be conveyed by decedent in its entirety, as she was not will. While it was alleged that the said will was procured by undue
its sole owner. and improper pressure and influence on the part of the beneficiary
Notwithstanding the oppositions, the trial court admitted the or of some other person, the evidence adduced have not shown
decedent's holographic will to probate. It found, inter alia: any instance where improper pressure or influence was exerted
"Considering then that the probate proceedings herein must on the testatrix. (Private respondent) Clemente Sand has testified
decide only the question of identity of the will, its due execution that the testatrix was still alert at the time of the execution of the
and the testamentary capacity of the testatrix, this probate court will, i.e., at or around the time of her birth anniversary celebration
finds no reason at all for the disallowance of the will for its failure in 1981. It was also established that she is a very intelligent person
to comply with the formalities prescribed by law nor for lack of and has a mind of her own. Her independence of character and to
testamentary capacity of the testatrix."For one, no evidence was some extent, her sense of superiority, which has been testified to
presented to show that the will in question is different from the will in Court, all show the unlikelihood of her being unduly influenced
actually executed by the testatrix. The only objections raised by or improperly pressured to make the aforesaid will. It must be
the oppositors xxx are that the will was not written in the noted that the undue influence or improper pressure in question
handwriting of the testatrix which properly refers to the question of herein only refer to the making of a will and not as to the specific
its due execution, and not to the question of identity of will. No testamentary provisions therein which is the proper subject of
other will was alleged to have been executed by the testatrix other another proceeding. Hence, under the circumstances, this Court
than the will herein presented. Hence, in the light of the evidence cannot find convincing reason for the disallowance of the will
adduced, the identity of the will presented for probate must be herein."Considering then that it is a well-established doctrine in the
accepted, i.e., the will submitted in Court must be deemed to be law on succession that in case of doubt, testate succession should
the will actually executed by the be preferred over intestate succession, and the fact that no
testatrix."xxx convincing grounds were presented and proven for the
xxx xxx"While the fact that it was disallowance of the holographic will of the late Annie Sand, the
entirely written, dated and signed in the handwriting of the aforesaid will submitted herein must be admitted to probate."[3]
testatrix has been disputed, the petitioners, however, have (Citations omitted.)
satisfactorily shown in Court that the holographic will in question On appeal, said Decision was reversed, and the petition for
was indeed written entirely, dated and signed in the handwriting of probate of decedent's will was dismissed. The Court of Appeals
the testatrix. Three (3) witnesses who have convincingly shown found that, "the holographic will fails to meet the requirements for
knowledge of the handwriting of the testatrix have been its validity."[4] It held that the decedent did not comply with Articles
presented and have explicitly and categorically identified the 813 and 814 of the New Civil Code, which read, as follows:
handwriting with which the holographic will in question was written "Article 813: When a number of dispositions appearing in a
to be the genuine handwriting and signature of the testatrix. Given holographic will are signed without being dated, and the last
then the aforesaid evidence, the requirement of the law that the disposition has a signature and date, such date validates the
holographic will be entirely written, dated and signed in the dispositions preceding it, whatever be the time of prior
handwriting of the testatrix has been complied dispositions.""Article 814: In case of insertion, cancellation, erasure
with."xxx or alteration in a holographic will, the testator must authenticate
xxx xxx"As to the question of the the same by his full signature."
testamentary capacity of the testatrix, (private respondent) It alluded to certain dispositions in the will which were either


unsigned and undated, or signed but not dated. It also found that acknowledgment requirements under Articles 805 and 806 of the
the erasures, alterations and cancellations made thereon had not New Civil Code.
been authenticated by decedent. In the case of holographic wills, on the other hand, what assures
Thus, this appeal which is impressed with merit. authenticity is the requirement that they be totally autographic or
Section 9, Rule 76 of the Rules of Court provides that wills shall be handwritten by the testator himself,[7] as provided under Article 810
disallowed in any of the following cases: of the New Civil Code, thus:
"(a) If not executed and attested as required by law;(b) If the "A person may execute a holographic will which must be entirely
testator was insane, or otherwise mentally incapable to make a written, dated, and signed by the hand of the testator himself. It is
will, at the time of its execution;(c) If it was executed under subject to no other form, and may be made in or out of the
duress, or the influence of fear, or threats;(d) If it was procured by Philippines, and need not be witnessed." (Italics supplied.)
undue and improper pressure and influence, on the part of the Failure to strictly observe other formalities will not result in the
beneficiary, or of some other person for his benefit;(e) If the disallowance of a holographic will that is unquestionably
signature of the testator was procured by fraud or trick, and he did handwritten by the testator.
not intend that the instrument should be his will at the time of A reading of Article 813 of the New Civil Code shows that its
fixing his signature thereto." requirement affects the validity of the dispositions contained in the
In the same vein, Article 839 of the New Civil Code reads: holographic will, but not its probate. If the testator fails to sign and
"Article 839: The will shall be disallowed in any of the following date some of the dispositions, the result is that these dispositions
cases:(1) If the formalities required by law have not been complied cannot be effectuated. Such failure, however, does not render the
with;(2) If the testator was insane, or otherwise mentally incapable whole testament void.
of making a will, at the time of its execution;(3) If it was executed Likewise, a holographic will can still be admitted to probate,
through force or under duress, or the influence of fear, or notwithstanding non-compliance with the provisions of Article 814.
threats;(4) If it was procured by undue and improper pressure and In the case of Kalaw vs. Relova, 132 SCRA 237, 242 (1984), this
influence, on the part of the beneficiary or of some other Court held:
person;(5) If the signature of the testator was procured by "Ordinarily, when a number of erasures, corrections, and
fraud;(6) If the testator acted by mistake or did not intend that the interlineations made by the testator in a holographic Will have not
instrument he signed should be his will at the time of affixing his been noted under his signature, xxx the Will is not thereby
signature thereto." invalidated as a whole, but at most only as respects the particular
These lists are exclusive; no other grounds can serve to disallow a words erased, corrected or interlined. Manresa gave an identical
will. Thus, in a petition to admit a holographic will to probate, the
[5]
commentary when he said ‘la omision de la salvedad no anula el
only issues to be resolved are: (1) whether the instrument testamento, segun la regla de jurisprudencia establecida en la
submitted is, indeed, the decedent's last will and testament; (2) sentencia de 4 de Abril de 1895.’"[8] (Citations omitted.)
whether said will was executed in accordance with the formalities Thus, unless the unauthenticated alterations, cancellations or
prescribed by law; (3) whether the decedent had the necessary insertions were made on the date of the holographic will or on
testamentary capacity at the time the will was executed; and, (4) testator's signature,[9] their presence does not invalidate the will
whether the execution of the will and its signing were the itself.[10] The lack of authentication will only result in disallowance of
voluntary acts of the decedent. [6]
such changes.
In the case at bench, respondent court held that the holographic It is also proper to note that the requirements of authentication of
will of Anne Sand was not executed in accordance with the changes and signing and dating of dispositions appear in
formalities prescribed by law. It held that Articles 813 and 814 of provisions (Articles 813 and 814) separate from that which provides
the New Civil Code, ante, were not complied with, hence, it for the necessary conditions for the validity of the holographic will
disallowed the probate of said will. This is erroneous. (Article 810). The distinction can be traced to Articles 678 and 688
We reiterate what we held in Abangan vs. Abangan, 40 Phil. 476, of the Spanish Civil Code, from which the present provisions
479 (1919), that: covering holographic wills are taken. They read as follows:
"The object of the solemnities surrounding the execution of wills is "Article 678: A will is called holographic when the testator writes it
to close the door against bad faith and fraud, to avoid substitution himself in the form and with the requisites required in Article
of wills and testaments and to guaranty their truth and authenticity. 688.""Article 688: Holographic wills may be executed only by
Therefore, the laws on this subject should be interpreted in such a persons of full age."In order that the will be valid it must be drawn
way as to attain these primordial ends. But, on the other hand, also on stamped paper corresponding to the year of its execution,
one must not lose sight of the fact that it is not the object of the written in its entirety by the testator and signed by him, and must
law to restrain and curtail the exercise of the right to make a will. contain a statement of the year, month and day of its execution."If
So when an interpretation already given assures such ends, any it should contain any erased, corrected, or interlined words, the
other interpretation whatsoever, that adds nothing but demands testator must identify them over his signature."Foreigners may
more requisites entirely unnecessary, useless and frustrative of the execute holographic wills in their own language."
testator's last will, must be disregarded." This separation and distinction adds support to the interpretation
For purposes of probating non-holographic wills, these formal that only the requirements of Article 810 of the New Civil Code --
solemnities include the subscription, attestation, and and not those found in Articles 813 and 814 of the same Code --



are essential to the probate of a holographic will. holographic will of one Melecio Labrador is dated, as provided for
The Court of Appeals further held that decedent Annie Sand could in Article 810[2] of the New Civil Code.
not validly dispose of the house and lot located in Cabadbaran,
Agusan del Norte, in its entirety. This is correct and must be The antecedent and relevant facts are as follows: On June 10,
affirmed. 1972, Melecio Labrador died in the Municipality of Iba, province of
As a general rule, courts in probate proceedings are limited to Zambales, where he was residing, leaving behind a parcel of land
pass only upon the extrinsic validity of the will sought to be designated as Lot No. 1916 under Original Certificate of Title No.
probated. However, in exceptional instances, courts are not P-1652, and the following heirs, namely: Sagrado, Enrica,
powerless to do what the situation constrains them to do, and pass Cristobal, Jesus, Gaudencio, Josefina, Juliana, Hilaria and Jovita,
upon certain provisions of the will.[11] In the case at bench, decedent all surnamed Labrador, and a holographic will.
herself indubitably stated in her holographic will that the
Cabadbaran property is in the name of her late father, John H. On July 28, 1975, Sagrado Labrador (now deceased but
Sand (which led oppositor Dr. Jose Ajero to question her substituted by his heirs), Enrica Labrador and Cristobal Labrador,
conveyance of the same in its entirety). Thus, as correctly held by filed in the court a quo a petition for the probate docketed as
respondent court, she cannot validly dispose of the whole Special Proceeding No. 922-I of the alleged holographic will of the
property, which she shares with her father's other heirs. late Melecio Labrador.
IN VIEW WHEREOF, the instant petition is GRANTED. The
Decision of the Court of Appeals in CA-G.R. CV No. 22840, dated Subsequently, on September 30, 1975, Jesus Labrador (now
March 30, 1992, is REVERSED and SET ASIDE, except with respect deceased but substituted by his heirs), and Gaudencio Labrador
to the invalidity of the disposition of the entire house and lot in filed an opposition to the petition on the ground that the will has
Cabadbaran, Agusan del Norte. The Decision of the Regional Trial been extinguished or revoked by implication of law, alleging
Court of Quezon City, Branch 94 in Sp. Proc. No. Q-37171, dated therein that on September 30, 1971, that is, before Melecio's death,
November 19, 1988, admitting to probate the holographic will of for the consideration of Six Thousand (P6,000) Pesos, testator
decedent Annie Sand, is hereby REINSTATED, with the above Melecio executed a Deed of Absolute Sale, selling, transferring
qualification as regards the Cabadbaran property. No costs. and conveying in favor of oppositors Jesus and Gaudencio Lot No.
SO ORDERED. 1916 and that as a matter of fact, O.C.T. No. P-1652 had been
Narvasa, C.J., (Chairman), Padilla, Regalado, and Mendoza, JJ., cancelled by T.C.T. No. T-21178. Earlier however, in 1973, Jesus
concur. Labrador sold said parcel of land to Navat for only Five Thousand
(P5,000) Pesos. (Rollo, p. 37)

39 Labrador v. CA 184 SCRA 170 Sagrado thereupon filed, on November 28, 1975, against his
263 Phil. 50 brothers, Gaudencio and Jesus, for the annulment of said
purported Deed of Absolute Sale over a parcel of land, which
Sagrado allegedly had already acquired by devise from their father
Melecio Labrador under a holographic will executed on March 17,
1968, the complaint for annulment docketed as Civil Case No.
SECOND DIVISION
934-I, being premised on the fact that the aforesaid Deed of
[ G.R. NOs. 83843-44, April 05, 1990 ] Absolute Sale is fictitious.

IN THE MATTER OF THE PETITION TO APPROVE THE After both parties had rested and submitted their respective
WILL OF MELECIO LABRADOR, SAGRADO LABRADOR evidence, the trial court rendered a joint decision dated February
(DECEASED) SUBSTITUTED BY ROSITA LABRADOR,
28, 1985, allowing the probate of the holographic will and
ENRICA LABRADOR, AND CRISTOBAL LABRADOR,
declaring null and void the Deed of Absolute Sale. The court a
PETITIONERS-APPELLANTS, VS. COURT OF APPEALS,[1]
quo had also directed the respondents (the defendants in Civil
Case no. 934-I) to reimburse to the petitioners the sum of
P5,000.00 representing the redemption price for the property paid
GAUDENCIO LABRADOR, AND JESUS LABRADOR, by the plaintiff-petitioner Sagrado with legal interest thereon from
RESPONDENTS-APPELLEES. December 20, 1976, when it was paid to vendee a retro.

Respondents appealed the joint decision to the Court of Appeals,
D E C I S I O N which on March 10, 1988 modified said joint decision the court a
quo by denying the allowance of the probate of will for being

undated and reversing the order of reimbursement. Petitioners’
PARAS, J.:
Motion for Reconsideration of the aforesaid decision was denied

by the Court of Appeals, in the resolution of June 13, 1988. Hence,
The sole issue in this case is whether or not the alleged
this petition.


differences or troubles may be forestalled and nothing will happen

Petitioners now assign the following errors committed by along these troubles among my children, and that they will be in
respondent court, to wit: good relations among themselves, brothers and sisters;
I
And those improvements and fruits of the land, mangoes,
THE COURT OF APPEALS ERRED IN NOT ALLOWING AND bamboos, and all coconut trees and all others like the other kind of
APPROVING THE PROBATE OF THE HOLOGRAPHIC WILL OF THE bamboo by name of Bayog, it is their right to get if they so need, in
TESTATOR MELECIO LABRADOR; and order that there shall be nothing that anyone of them shall
complain against the other, and against anyone of the brothers
II and sisters.

THE COURT OF APPEALS ERRED IN FINDING THAT THE ORDER III - THIRD PAGE
OF THE LOWER COURT DIRECTING THE REIMBURSEMENT OF
THE FIVE THOUSAND PESOS REPRESENTING THE REDEMPTION And that referring to the other places of property, where the said
PRICE WAS ERRONEOUS.The alleged undated holographic will property is located, the same being the fruits of our earnings of the
written in Ilocano translated into English, is quoted as follows: two mothers of my children, there shall be equal portion of each
share among themselves, and or to be benefitted with all those
"ENGLISH INTERPRETATION OF THE WILL OF THE LATE MELECIO property, which property we have been able to acquire.
LABRADOR WRITTEN IN ILOCANO
That in order that there shall be basis of the truth of this writing
BY ATTY. FIDENCIO L. FERNANDEZ (WILL) which I am here hereof manifesting of the truth and of the
fruits of our labor which their two mothers, I am signing my
I - First Page signature below hereof, and that this is what should be complied
with, by all the brothers and sisters, the children of their two
This is also where it appears in writing of the place which is mothers - JULIANA QUINTERO PILARISA and CASIANA AQUINO
assigned and shared or the partition in favor of SAGRADO VILLANUEVA Your father who made this writing (WILL), and he is,
LABRADOR which is the fishpond located and known place as MELECIO LABRADOR y RALUTIN." (p. 46, Rollo)The petition, which
Tagale. principally alleges that the holographic will is really dated,
although the date is not in its usual place, is impressed with merit.
And this place that is given as the share to him, there is a
measurement of more or less one hectare, and the boundary at The will has been dated in the hand of the testator himself in
the South is the property and assignment share of ENRICA perfect compliance with Article 810. It is worthy of note to quote
LABRADOR, also their sister, and the boundary in the West is the the first paragraph of the second page of the holographic will, viz:
sea, known as the SEA as it is, and the boundary on the NORTH is "And this is the day in which we agreed that we are making the
assignment belonging to CRISTOBAL LABRADOR, who likewise is partitioning and assigning the respective assignment of the said
also their brother. That because it is now the time for me being fishpond, and this being in the month of March, 17th day, in the
now ninety three (93) years, then I feel it is the right time for me to year 1968, and this decision and or instruction of mine is the
partition the fishponds which were and had been bought or matter to be followed. And the one who made this writing is no
acquired by us, meaning with their two mothers, hence there shall other than MELECIO LABRADOR, their father." (underscoring
be no differences among themselves, those among brothers and supplied) (p. 46, Rollo)The law does not specify a particular
sisters, for it is I myself their father who am making the location where the date should be placed in the will. The only
apportionment and delivering to each and everyone of them the requirements are that the date be in the will itself and executed in
said portion and assignment so that there shall not be any cause the hand of the testator. These requirements are present in the
of troubles or differences among the brothers and sisters. subject will.

II - Second Page Respondents claim that the date 17 March 1968 in the will was
when the testator and his beneficiaries entered into an agreement
And this is the day in which we agreed that we are making the among themselves about "the partitioning and assigning the
partitioning and assigning the respective assignment of the said respective assignments of the said fishpond," and was not the date
fishpond, and this being in the month of March, 17th day, in the of execution of the holographic will; hence, the will is more of an
year 1968, and this decision and or instruction of mine is the "agreement" between the testator and the beneficiaries thereof to
matter to be followed. And the one who made this writing is no the prejudice of other compulsory heirs like the respondents. This
other than MELECIO LABRADOR, their father. was thus a failure to comply with Article 783 which defines a will as
"an act whereby a person is permitted, with the formalities
Now, this is the final disposition that I am making in writing and it is prescribed by law, to control to a certain degree the disposition of
this that should be followed and complied with in order that any his estate, to take effect after his death."



holographic will allegedly executed by the deceased, substantially

Respondents are in error. The intention to show 17 March 1968 as in these words:
the date of the execution of the will is plain from the tenor of the
succeeding words of the paragraph. As aptly put by petitioner, the "Nobyembre 5, 1951
will was not an agreement but a unilateral act of Melecio Labrador
who plainly knew that what he was executing was a will. The act Ako, si Felicidad E. Alto-Yap, may asawa, at ganap na pagiisip, ay
of partitioning and the declaration that such partitioning was the nagsasalaysay na ang aking kayamanan sa bayan ng Pulilan,
testator’s instruction or decision to be followed reveal that Melecio Bulacan ay aking ipinamamana sa aking mga kamaganakang
Labrador was fully aware of the nature of the estate property to be sumusunod:
disposed of and of the character of the testamentary act as a Vicente Esguerra, Sr .......................................................... 5 Bahagi
means to control the disposition of his estate. Pausto E. Gan .......................................................... 2 Bahagi
Rosario E. Gan .......................................................... 2 Bahagi
Anent the second issue of finding the reimbursement of the
Filomena Alto .......................................................... 1 Bahagi
P5,000 representing the redemption price as erroneous,
Beatriz Alto .......................................................... 1 Bahagi
respondent court's conclusion is incorrect. When private
'At ang aking lahat ng ibang kayamanan sa Maynila at iba pang
respondents sold the property (fishpond) with right to repurchase
lugar ay aking ipinamamana sa aking asawang si Ildefonso D. Yap
to Navat for P5,000, they were actually selling property belonging
sa kondisyong siya'y magpapagawa ng isang Health Center na
to another and which they had no authority to sell, rendering such
nagkakahalaga ng di kukulangin sa halagang P60,000.00 sa
sale null and void. Petitioners, thus "redeemed" the property from
bayan ng Pulilan, Bulacan, na nakaukit ang aking pangalang
Navat for P5,000, to immediately regain possession of the
Felicidad Esguerra-Alto. At kung ito ay may kakulangan man ay
property for its disposition in accordance with the will. Petitioners
bahala na ang aking asawa ang magpuno upang matupaa ang
therefore deserve to be reimbursed the P5,000.
aking kagustuhan.'

(Lagda) Felicidad E. Alto-Yap"
PREMISES CONSIDERED, the decision of the Court of Appeals
Opposing the petition, her surviving husband Ildefonso Yap
dated March 10, 1988 is hereby REVERSED. The holographic will
asserted that the deceased had not left any will, nor executed any
of Melecio Labrador is APPROVED and ALLOWED probate. The
testament during her lifetime.
private respondents are directed to REIMBURSE the petitioners
After hearing the parties and considering their evidence, the Hon.
the sum of Five Thousand Pesos (P5,000.00).
Ramon R. San Jose, Judge,[1] refused to probate the alleged will. A

seventy-page motion for reconsideration failed. Hence this appeal.
SO ORDERED.
The will itself was not presented. Petitioner tried to establish its

contents and due execution by the statements in open court of
Melencio-Herrera, (Chairman), Padilla, Sarmiento, and Regalado,
Felina Esguerra, Primitivo Reyes, Socorro Olarte and Rosario Gan
JJ., concur.
Jimenez, whose testimonies may be summarized as follows:

Sometime in 1950 after her last trip abroad, Felicidad Esguerra
mentioned to her first cousin, Vicente Esguerra, her desire to
40 Gan v. Yap G.R. No. L-12190 August 30, 1958
make a will. She confided however that it would Jbe useless if her
(104 Phil. 509)
104 Phil. 509 husband discovered or knew about it. Vicente consulted with
Fausto E. Gan, nephew of Felicidad, who was then preparing for
the bar examinations. The latter replied it could be done without
any witness, provided the document was entirely in her
[ G. R. No. L-12190, August 30, 1958 ]
handwriting, signed and dated by her. Vicente Esguerra lost no
time in transmitting the information, and on the strength of it, in the
TESTATE ESTATE OF FELICIDAD ESGUERRA ALTO-YAP
morning of November 5,1951, in her residence at Juan Luna Street,
DECEASED. FAUSTO E. GAN, PETITIONER AND
APPELLANT, VS. ILDEFONSO YAP, OPPOSITOR AND Manila, Felicidad wrote, signed and dated a holographic will
APPELLEE. substantially of the tenor above transcribed, in the presence of her
niece, Felina Esguerra (daughter of Vicente), who was invited to
D E C I S I O N
read it. In the afternoon of that day, Felicidad was visited by a
distant relative, Primitivo Reyes, and she allowed him to read the
BENGZON, J.: will in the presence of Felina Esguerra, who again read it.
Nine days later, he had other visitors: Socorro Olarte a cousin, and
On November 20, 1951, Felicidad Esguerra Alto Yap died of heart Rosario Gan Jimenez, a niece. To these she showed the will, again
failure in the University of Santo Tomas Hospital, leaving in the presence of Felina Esguerra, who read it for the third time.
properties in Pulilan, Bulacan, and in the City of Manila. When on November 19, 1951, Felicidad was confined at the U.S.T.
On March 17, 1952, Fausto E. Gan initiated these proceedings in Hospital for her last illness, she entrusted the said will, which was
the Manila court of first instance with a petition for the probate of a contained in a purse, to Felina Esguerra. But a few hours later,


Ildefonso Yap, her husband, asked Felina for the purse; and being a on the other hand, aptly answers the criticisms. We deem it
afraid of him by reason of his well-known violent temper, she unnecessary to go over the same matters, because in our opinion
delivered it to him. Thereafter, in the same day, Ildefonso Yap the case should be decided not on the weakness of the opposition
returned the purse to Felina, only to demand it the next day shortly but on the strength of the evidence of the petitioner, who has the
before the death of Felicidad. Again, Felina handed it to him but burden of proof.
not before she had taken the purse to the toilet, opened it and The Spanish Civil Code permited the execution of holographic
[2]
read the will for the last time wills along with other forms. The Code of Civil Procedure (Act 190)
From the oppositor's proof it appears that Felicidad Esguerra had approved August 7, 1901, adopted only one form, thereby
been suffering from heart disease for several years before her repealing the other forms, including holographic wills.
death; that she had been treated by prominent physicians, Dr. The New Civil Code effective in 1960 revived holographic wills in
Agerico Sison, Dr. Agustin Liboro and others; that in May 1950 its arts. 810-814. "A person may execute a holographic will which
husband and wife journeyed to the United States wherein for must be entirely written, dated, and sigrned by the hand of the
several weeks she was treated for the disease; that thereafter she testator himself. It is subject to no other form and may be made in
felt well and after visiting interesting places, the couple returned to or out of the Philippines, and need not be witnessed."
this country in August 1950. However, her ailment recurred, she This is indeed a radical departure from the form and solemnities
suffered several attacks, the most serious of which happened in provided for wills under Act 190, which for fifty years (from 1901 to
the early morning of the first Monday of November 1951 (Nov. 5). 1950) required wills to be subscribed by the testator and three
The whole household was surprised and alarmed, even the credible witnesses in each and every page; such witnesses to
teachers of the Harvardian Colleges occupying the lower floors attest to the number of sheets used and to the fact that the
and owned by the Yap spouses. Physician's help was hurriedly testator signed in their presence and that they signed in the
called, and Dr. Tanjuaquio arrived at about 8:00 a.m., found the presence of the testator and of each other.
patient hardly "breathing, lying in bed, her head held high by her The object of such requirements it has been said, is to close the
husband. Injections and oxygen were administered. Following the door against bad faith and fraud, to prevent substitution of wills, to
doctor's advice the patient stayed in bed, and did nothing the guarantee their truth and authenticity (Abangan vs. Abangan, 40
whole day, her husband and her personal attendant, Mrs. Phil., 476) and to avoid that those who have no right to succeed
Bantique, constantly at her side. These two persons swore that the testator would succeed him and be benefited with the probate
Mrs. Felicidad Esguerra Yap made no will, and could have made of same. (Mendoza vs. Pilapil, 40 Off. Gaz., 1855), However, formal
no will on that day. imperfections may be brushed aside when authenticity of the
The trial judge refused to credit the petitioner's evidence for instrument is duly proved. (Rodriguez vs. Yap, 40 Off. Gaz. Ist Supp.
several reasons, the most important of which were these: (a) if No. 3 p. 194.)
according to his evidence, the decedent wanted to keep her will a Authenticity and due execution is the dominant requirement to be
secret, so that her husband would not know it, it is strange she fulfilled when such will is submitted to the courts for allowance. For
executed it in the presence of Felina Esguerra, knowing as she did that purpose the testimony of one of the subscribing witnesses
that witnesses were unnecessary; (b) in the absence of a showing would be sufficient, if there is no opposition (Sec. 5, Rule 77). If
that Felina was a confidant of the decedent it is hard to believe there is, the three must testify, if available. (Cabang vs. Delfinado,
that the latter would have allowed the former to see and read the 34 Phil., 291; Tolentino vs. Francisco, 57 Phil., 742). From the
will several times; (c) it is improbable that the decedent would testimony of such witnesses (and of other additional witnesses) the
have permitted Primitivo Reyes, Rosario Gan Jimenez and Socorro court may form its opinion as to the genuineness and authenticity
Olarte to read her will, when she precisely wanted its contents to of the testament, and the circumstances of its due execution.
remain a secret during her lifetime; (d) it is also improbable that her Now, in the matter of holographic wills, no such guaranties of truth
purpose being to conceal the will from her husband she would and veracity are demanded, since as stated they need no
carry it around, even to the hospital, in her purse which could for witnesses; provided however, that they are "entirely written, dated,
one reason or another be opened by her husband; (e) if it is true and signed by the hand of the testator himself." The law, it is
that the husband demanded the purse from Felina in the U.S.T. reasonable to suppose, regards the document itself as material
Hospital and that the will was there, it is hard to believe that he proof of authenticity, and as its own safeguard, since it could at
returned it without destroying the will, the theory of the petitioner any time, be demonstrated to be—or not to be—in the hands of the
being precisely that the will was executed behind his back for fear testator himself. "In the probate of a holographic will" says the New
he will destroy it. Civil Code, "it shall be necessary that at least one witness who
In the face of these improbabilities, the trial judge had to accept knows the handwriting and signature of the testator explicitly
the oppositor's evidence that Felicidad did not and could not have declare that the will and the signature are in the handwriting of the
executed such holographic will. testator. If the will is contested, at least three such witnesses shall
In this appeal, the major portion of appellant's brief discussed the be required. In the absence of any such witnesses, (familiar with
testimony of the oppositor and of his witnesses in a vigorous effort decedent's handwriting) and if the court deem it necessary, expert
to discredit them. It appears that the same arguments, or most of testimony may be resorted to."
them, were presented in the motion to reconsider; but they failed The witnesses so presented do not need to have seen the
to induce the court a quo to change its mind. The oppositor's brief, execution of the holographic will. They may be mistaken in their


opinion of the handwriting, or they may deliberately lie in affirming witnesses who depose that they have no reasonable doubt that
it is in the testator's hand. However, the oppositor may present the will was written by the testator (Art. 691). And if the judge
other witnesses who also know the testator's handwriting, or some considers that the identity of the will has been proven he shall
expert witnesses, who after comparing the will with other writings order that it be filed (Art. 693). All these, imply presentation of the
or letters of the deceased, have come to the conclusion that such will itself. Art. 692 bears the same implication, to a greater degree.
will has not been written by the hand of the deceased. (Sec. 50, It requires that the surviving spouse and the legitimate ascendants
Rule 123). And the court, in view of such contradictory testimony and descendants be summoned so that they may make "any
may use its own visual sense, and decide in the face of the statement they may desire to submit with respect to the
document, whether the will submitted to it has indeed been authenticity of the will." As it is universally admitted that the
written by the testator. holographic will is usually done by the testator and by himself
Obviously, when the will itself is not submitted, these means of alone, to prevent others from knowing either its execution or its
opposition, and of assessing the evidence are not available. And contents, the above article 692 could not have the idea of simply
[3]
then the only guaranty of authenticity —the testator's permitting such relatives to state whether they know of the will,
handwriting—has disappeared. but whether in the face of the document itself they think the
Therefore, the question presents itself, may a holographic will be testator wrote it. Obviously, this they can't do unless the will itself
probated upon the testimony of witnesses who have allegedly is presented to the Court and to them.
seen it and who declare that it was in the handwriting of the Undoubtedly, the intention of the law is to give the near relatives
testator? How can the oppositor prove that such document was the choice of either complying with the will if they think it
not in the testator's handwriting? His witnesses who know authentic, or to oppose it, if they think it spurious.[5] Such purpose
testator's handwriting have not examined it. His experts can not is frustrated when the document is not presented for their
testify, because there is no way to compare the alleged testament examination. If it be argued that such choice is not essential,
with other documents admittedly, or proven to be, in the testator's because anyway the relatives may oppose, the answer is that their
hand. The oppositor will, therefore, be caught between the upper opposition will be at a distinct disadvantage, and they have the
millstone of his lack of knowledge of the will or the form thereof, right and privilege to comply with the will, if genuine, a right which
and the nether millstone of his inability to prove its falsity. Again they should not be denied by withholding inspection thereof from
the proponent's witnesses may be honest and truthful; but they them.
may have been shown a faked document, and having no interest We find confirmation of these ideas—about exhibition of the
to check the authenticity thereof have taken no pains to examine document itself—in the decision of the Supreme Court of Spain of
and compare. Or they may be perjurers boldly testifying, in the June 5, 1925, which denied protocolization or probate to a
knowledge that none could convict them of perjury, because no document containing testamentary dispositions in the handwriting
one could prove that they have not "been shown" a document of the deceased, but apparently mutilated, the signature and some
which they believed was in the handwriting of the deceased. Of words having been torn from it. Even in the face of allegations and
course, the competency of such perjured witnesses to testify as to testimonial evidence (which was controverted), ascribing the
the handwriting could be tested by exhibiting to them other mutilation to the opponents of the will. The aforesaid tribunal
writings sufficiently similar to those written by the deceased; but declared that, in accordance with the provision of the Civil Code
what witness or lawyer would not foresee such a move and (Spanish) the will itself, whole and unmutilated, must be presented;
prepare for it? His knowledge of the handwriting established, the otherwise, it shall produce no effect.
witness (or witnesses) could simply stick to his statement: he has "Considerando que sentado lo anterior, y estableciendose en el
seen and read a document which he believed was in the parrafo segundo del articulo 688 del Codigo civil, que para que
deceased's handwriting. And the court and the oppositor would sea valido el testamento olografo debera estar escrito todo el y
practically be at the mercy of such witness (or witnesses) not only firmado por testador, con expression del año, mes y dia en que se
as to the execution, but also as to the contents of the will. Does otorque, resulta evidente que para la validez y eflcacia de esos
the law permit such a situation? testamentos, no basta la demostracion mas o menos cumplida de
The Rules of Court, (Rule 77) approved in 1940, allow proof (and que cuando se otorgaron se llenaron todos esos requisites, sino
probate) of a lost or destroyed will by secondary evidence—the que de la expresada redaccion el precepto legal, y por el tiempo
testimony of witnesses, in lieu of the original document. Yet such en que el verbo se emplea, se desprende la necesidad de que el
Rules could not have contemplated holographic wills which could documento se encuentre en dichas condidones en el momento de
not then be validly made here. (See also Sec. 46, Rule 123; Art. ser presentado a la Autoridad competente, para su adveraci6n y
830—New Civil Code.) protocolizacion; y como consecuencia ineludible de ello, forzoso
Could Rule 77 be extended, by analogy, to holographic wills? es affirmar que el de autos carece de validez y aficacia, por no
Spanish commentators agree that one of the greatest objections estar firmado por el testador, cualquiera que sea la causa de la
[4]
to the holographic will is that it may be lost or stolen —an implied falta, de firma, y sin perjuieio de las acetones que puedan ejercitar
admission that such loss or theft renders it useless. " los perjudicados, Men para pedir indemnizacion por el perjuicio a
This must be so, because the Civil Code requires it to be la persona culpable, si la hubiere, o su castigo en via criminal si
protocoled and presented to the judge, (Art. 689) who shall procediere, por constituir dicha omision un defecto insubsanable *
subscribe it and require its identity to be established by the three * *."



This holding aligns with the ideas on holographic wills in the Fuero having no interest, could easily fall for it, and in court they would in

Juzgo, admittedly the basis of the Spanish Civil Code provisions all good faith affirm its genuineness and authenticity. The will
[6]
on the matter. having been lost—the forger may have purposely destroyed it in
"PRECEDENTES LEGALES—Fuero Juzgo, libro segxmdo, titulo V, an "accident"—the oppositors have no way to expose the trick and
ley 15—E depues que los herederos e sus fijos ovieren esta the error, because the document itself is not at hand. And
manda, fasta xxx annos muestrenla al obispo de la tierra, o al juez considering that the holographic will may consist of two or three
fasta VI meses y el obispo o el juez tomen otros tales tres escritos, pages, and only one of them need be signed, the substitution of
que fuesen fechos por su mano daquel que fizo la manda; e por the unsigned pages, which may be the most important ones, may
aquellos escriptos, si semjara la letra de la manda, sea confirmada go undetected.
la manda. E depues que todo esto fuere connoscido, el obispo o If testimonial evidence of holographic wills be permitted, one more
el juez, o otras testimonios confirmen el escripto de la manda otra objectionable feature—feasibility of forgery—would be added to
vez, y en esta manera vala la manda." (Art. 689, Scaevola—Codigo the several objections to this kind of wills listed by Castan,
Civil.) Sanchez Roman and Valverde and other well-known Spanish
(According to the Fuero above, the will itself must be compared Commentators and teachers of Civil Law.[10]
with specimens of the testators handwriting.) One more fundamental difference: in the case of a lost will, the
All of which can only mean: the courts will not distribute the three subscribing witnesses would be testifying to a fact which
property of the deceased in accordance with his holographic will, they saw, namely the act of the testator of subscribing the will;
unless they are shown his handwriting and signature.[7] whereas in the case of a lost holographic will, the witnesses would
Parenthetically, it may be added that even the French Civil Law testify as to their opinion of the handwriting which they allegedly
considers the loss of the holographic will to be fatal. (Planiol y saw, an opinion which can not be tested in court, nor directly
Ripert, Derecho Civil Frances, traduccion por Diaz Cruz, 1946, contradicted by the oppositors, because the handwriting itself is
Tomo V, page 555). not at hand.
Taking all the above circumstances together, we reach the Turning now to the evidence presented by the petitioner, we find
conclusion that the execution and the contents of a lost or ourselves sharing the trial judge's disbelief. In addition to the
destroyed holographic will may not be proved by the bare dubious circumstances described in the appealed decision, we
testimony of witnesses who have seen and/or read such will.[8] find it hard to believe that the deceased should show her will
Under the provisions of Art. 838 of the New Civil Code, we are precisely to relatives who had received nothing from it: Socorro
empowered to adopt this opinion as a Rule of Court for the Olarte and Primitivo Reyes. These could pester her into amending
allowance of such holographic wills. We hesitate, however, to her will to give them a share, or threaten to reveal its execution to
make this Rule decisive of this controversy, simultaneously with its her husband Ildefonso Yap. And this leads to another (point: if she
promulgation. Anyway, decision of the appeal may rest on the wanted so much to conceal the will from her husband, why did she
sufficiency, rather the insufficiency, of the evidence presented by not entrust it to her beneficiaries? Opportunity to do so was not
petitioner Fausto E. Gan. lacking: for instance, her husband's trip to Davao, a few days after
At this point, before proceeding further, it might be convenient to the alleged execution of the will.
explain why, unlike holographic wills, ordinary wills may be proved In fine, even if oral testimony were admissible to establish and
by testimonial evidence when lost or destroyed. The difference probate a lost holographic will, we think the evidence submitted
lies in the nature of the wills. In the first, the only guarantee of by herein petitioner is so tainted with improbabilities and
authenticity is the handwriting itself; in the second, the testimony inconsistencies that it fails to measure up to that "clear and
of the subscribing or instrumental witnesses (and of the notary, distinct" proof required by Rule 77, sec. 6.[11]
now). The loss of the holographic will entails the loss of the only Wherefore, the rejection of the alleged will must be sustained.
medium of proof; if the ordinary will is lost, the subscribing Judgment affirmed, with costs against petitioner.
witnesses are available to authenticate. Paras, C. J., Padilla, Montemayor, Reyes, A., Bautista Angelo,
In the case of ordinary wills, it is quite hard to convince three Concepcion, Reyes, J. B. L., Endencia and Felix, JJ., concur.
witnesses (four with the notary) deliberately to lie. And then their
lies could be checked and exposed, their whereabouts and acts
on the particular day, the likelihood that they would be called by 41 Rodelas v. Aranza G.R. No. L-58509 Dec 7,
the testator, their intimacy with the testator, etc. And if they were 1982 (119 SCRA 16)
204 Phil. 402
intimates or trusted friends of the testator they are not likely to

lend themselves to any fraudulent scheme to distort his wishes.
Last but not least, they can not receive anything on account of the
will.
Whereas in the case of holographic wills, if oral testimony were FIRST DIVISION
admissible[9] only one man could engineer the whole fraud this
[ G.R. No. L-58509, December 07, 1982 ]
way: after making a clever or passable imitation of the handwriting
and signature of the deceased, he may contrive to let three honest
and credible witnesses see and read the forgery; and the latter, IN THE MATTER OF THE PETITION TO APPROVE THE


WILL OF RICARDO B. BONILLA, DECEASED, MARCELA to suppose, regards the document itself as the material proof of
RODELAS, PETITIONER-APPELLANT, VS. AMPARO authenticity of said wills.'
ARANZA, ET. AL., OPPOSITORS-APPELLEES, ATTY. 'MOREOVER, this Court notes that the alleged holographic will was
LORENZO SUMULONG, INTERVENOR.
executed on January 25, 1962 while Ricardo B. Bonilla died on

May 13, 1976. In view of the lapse of more than 14 years from the
time of the execution of the will to the death of the decedent, the
D E C I S I O N
fact that the original of the will could not be located shows to our
mind that the decedent had discarded before his death his
RELOVA, J.: allegedly missing Holographic Will.
Appellant's motion for reconsideration was denied. Hence, an

appeal to the Court of Appeals in which it is contended that the
This case was certified to this Tribunal by the Court of Appeals for dismissal of appellant's petition is contrary to law and well-settled
final determination pursuant to Section 3, Rule 50 of the Rules of jurisprudence.
Court. On July 7, 1980, appellees moved to forward the case to this Court
As found by the Court of Appeals: on the ground that the appeal does not involve question of fact
"x x x On January 11, 1977, appellant filed a petition with the Court and alleged that the trial court committed the following assigned
of First Instance of Rizal for the probate of the holographic will of errors:
Ricardo B. Bonilla and the issuance of letters testamentary in her "I. THE LOWER COURT ERRED IN HOLDING THAT A LOST
favor. The petition, docketed as Sp. Proc. No. 8432, was opposed HOLOGRAPHIC WILL MAY NOT BE PROVED BY A COPY
by the appellees Amparo Aranza Bonilla, Wilferine Bonilla Treyes, THEREOF;"II. THE LOWER COURT ERRED IN HOLDING THAT
Expedita Bonilla Frias and Ephraim Bonilla on the following THE DECEDENT HAS DISCARDED BEFORE HIS DEATH THE
grounds:"(1) Appellant was estopped from claiming that the MISSING HOLOGRAPHIC WILL;"III. THE LOWER COURT ERRED IN
deceased left a will by failing to produce the will within twenty DISMISSING APPELLANT's WILL."
days of the death of the testator as required by Rule 75, section 2 The only question here is whether a holographic will which was
of the Rules of Court;"(2) The alleged copy of the alleged lost or cannot be found can be proved by means of a photostatic
holographic will did not contain a disposition of property after copy. Pursuant to Article 811 of the Civil Code, probate of
death and was not intended to take effect after death, and holographic wills is the allowance of the will by the court after its
therefore it was not a will;"(3) The alleged holographic will itself, due execution has been proved. The probate may be uncontested
and not an alleged copy thereof, must be produced, otherwise it or not. If uncontested, at least one identifying witness is required
would produce no effect, as held in Gan v. Yap, 104 Phil. 509; and, if no witness is available, experts may be resorted to. If
and"(4) The deceased did not leave any will, holographic or contested, at least three identifying witnesses are required.
otherwise, executed and attested as required by law."The However, if the holographic will has been lost or destroyed and no
appellees likewise moved for the consolidation of the case with other copy is available, the will can not be probated because the
another case (Sp. Proc. No. 8275). Their motion was granted by best and only evidence is the handwriting of the testator in said
the court in an order dated April 4, 1977."On November 13, 1978, will. It is necessary that there be a comparison between sample
following the consolidation of the cases, the appellees moved handwritten statements of the testator and the handwritten will.
again to dismiss the petition for the probate of the will. They But a photostatic copy or xerox copy of the holographic will may
argued that:"(1) The alleged holographic was not a last will but be allowed because comparison can be made with the standard
merely an instruction as to the management and improvement of writings of the testator. In the case of Gan vs. Yap, 104 Phil. 509,
the schools and colleges founded by decedent Ricardo B. Bonilla; the Court ruled that "the execution and the contents of a lost or
and"(2) Lost or destroyed holographic wills cannot be proved by destroyed holographic will may not be proved by the bare
secondary evidence unlike ordinary wills."Upon opposition of the testimony of witnesses who have seen and/or read such will. The
appellant, the motion to dismiss was denied by the court in its will itself must be presented; otherwise, it shall produce no effect.
order of February 23, 1979."The appellees then filed a motion for The law regards the document itself as material proof of
reconsideration on the ground that the order was contrary to law authenticity." But, in Footnote 8 of said decision, it says that
and settled pronouncements and rulings of the Supreme Court, to "Perhaps it may be proved by a photographic or photostatic copy.
which the appellant in turn filed an opposition. On July 23, 1979, Even a mimeographed or carbon copy; or by other similar means,
the court set aside its order of February 23, 1979 and dismissed if any, whereby the authenticity of the handwriting of the deceased
the petition for the probate of the will of Ricardo B. Bonilla. The may be exhibited and tested before the probate court." Evidently,
court said: the photostatic or xerox copy of the lost or destroyed holographic
'. . . It is our considered opinion that once the original copy of the will may be admitted because then the authenticity of the
holographic will is lost, a copy thereof cannot stand in lieu of the handwriting of the deceased can be determined by the probate
original. court.
'In the case of Gan vs. Yap, 104 Phil. 509, 522, the Supreme Court WHEREFORE, the order of the lower court dated October 3, 1979,
held that 'in the matter of holographic wills the law, it is reasonable denying appellant's motion for reconsideration dated August 9,
1979, of the Order dated July 23, 1979, dismissing her petition to



approve the will of the late Ricardo B. Bonilla, is hereby SET transcript of the stenographic notes, when the same witness was
ASIDE. asked by counsel if he was familiar with the penmanship and
SO ORDERED. handwriting of the deceased Fortunata Vda. de Yance, he
answered positively in the affirmative and when he was asked
Teehankee, Acting C.J., Melencio-Herrera, Plana, Vasquez, and again whether the penmanship referred to in the previous answer
Gutierrez, Jr., JJ., concur. as appearing in the holographic will (Exh. C) was hers (testatrix'),
he answered, "I would definitely say it is hers"; that it was also
established in the proceedings that the assessed value of the
42 Azaola v. Singson (1960) 109 Phil 102 property of the deceased in Luskot, Quezon City, is in the amount
109 Phil. 102 of P7,000.00."
The opposition to the probate was on the ground that (1) the
execution of the will was procured by undue and improper

pressure and influence on the part of the petitioner and his wife,
[ G.R. No. L-14003, August 05, 1960 ] and (2) that the testatrix did not seriously intend the instrument to
be her last will, and that the same was actually written either on
FEDERICO AZAOLA, PETITIONER AND APPELLANT, VS. the 5th or 6th day of August 1957 and not on November 20, 1956
CESARIO SINGSON, OPPOSITOR AND APPELLEE. as appears on the will.
The probate was denied on the ground that under Article 811 of
D E C I S I O N
the Civil Code, the proponent must present three witnesses who
could declare that the will and the signature are fn the writing of
REYES, J.B.L., J.: the testatrix, the probate being contested; and because the lone
witness presented by the proponent "did not prove sufficiently that
the body of the will was written in the handwriting of the testatrix."
This appeal, taken on points of law from a decision rendered on 15 The proponent appealed, urging: first, that he was not bound to
January 1958 by the Court of First Instance of Quezon City in its produce more than one witness because the will's authenticity was
Special Proceedings No. Q-2640, involves the determination of not questioned; and second, that Article 811 does not mandatorily
the quantity of evidence required for the probate of a holographic require the production of three witnesses to identify the
will. handwriting and signature of a holographic will, even if its
The established facts are thus summarized in the decision authenticity should be denied by the adverse party.
appealed from (Rec. App. pp. 22-24): Article 811 of the Civil Code of the Philippines is to the following
"Briefly speaking, the following facts were established by the effect:
petitioner; that on September 9, 1957, Fortunata S. Vda. de Yance "Art. 811. In the probate of a holographic will, it shall be necessary
died at 13 Luskot, Quezon City, known to be the last residence of that at least one witness who knows the handwriting and signature
said testatrix; that Francisco Azaola, petitioner herein for probate of the testator explicitly declare that the will and the signature are
of the holographic will, submitted the said holographic will (Exh. C) in the handwriting of the testator. If the will is contested, at least
whereby Maria Milagros Azaola was made the sole heir as against three of such witnesses shall be required.
the nephew of the deceased Cesario Singson; that witness In the absence of any competent witness referred to in the
Francisco Azaola testified that he saw the holographic will (Exh. C) preceding paragraph, and if the court deems it necessary, expert
one month, more or less, before the death of the testatrix, as the testimony may be resorted to. (691a)"
same was handed to him and his wife; that the witness testified We agree with the appellant that since the authenticity of the will
also that he recognized all the signatures appearing in the was not contested, he was not required to produce more than one
holographic will (Exh. C) as the handwriting of the testatrix and to witness; but even if the genuineness of the holographic will were
reinforce said statement, witness presented the mortgage (Exh. E), contested, we are of the opinion that Article 811 of our present Civil
the special power of attorney (Exh. F), and the general power of Code can not be interpreted as to require the compulsory
attorney (Exh. F-1), besides the deeds of sale (Exhs. G and G-1) presentation of three witnesses to identify the handwriting of the
including an affidavit (Exh. G-2), and that there were further testator, under penalty of having the probate denied. Since no
exhibited in court two residence certificates (Exhs. H and H-1) to witness may have been present at the execution of a holographic
show the signatures of the testatrix, for comparison purposes; that will, none being required by law (Art. 810, new Civil Code), it
said witness, Azaola, testified that the penmanship appearing in becomes obvious that the existence of witnesses possessing the
the aforesaid documentary evidence is in the handwriting of the requisite qualifications is a matter beyond the control of the
testatrix as well as the signatures appearing therein are the proponent. For it is not merely a question of finding and producing
signatures of the testatrix; that said witness, in answer to a any three witnesses; they must be witnesses "who know the
question of his counsel admitted that the holographic will was handwriting and signature of the testator" and who can declare
handed to him by the testatrix, "apparently it must have been (truthfully, of course, even if the law does not so express) "that the
written by her" (t.s.n., p. 11). However, on page 16 on the same will and the signature are in the handwriting of the testator". There
may be no available witness acquainted with the testator's hand;


or even if so familiarized, the witnesses may be unwilling to give a estos respecto de los extremos por que son preguntados.
positive opinion. Compliance with the rule of paragraph 1 of Article El arbitrio judicial en este caso debe de formarse con
811 may thus become an impossibility. That is evidently the reason independencia de los sucesos y die su significacion, para
why the second paragraph of Article 811 prescribes that— responder debidamente de las resoluciones que haya de dictar."
"in the absence of any competent witness referred to in the And because the law leaves it to the trial court to decide if experts
preceding paragraph, and if the court deems it necessary, expert are still needed, no unfavourable inference can be drawn from a
testimony may be resorted to." party's failure to offer expert evidence, until arid unless the court
As can be seen, the law foresees the possibility that no qualified expresses dissatisfaction with the testimony of the lay witnesses.
witness may be found (or what amounts to the same, thing, that no Our conclusion is that the rule of the first paragraph of Article 811
competent witness may be willing to testify to the authenticity of of the Civil Code is merely directory and is not mandatory.
the will), and provides for resort to expert evidence to supply the Considering, however, that this is the first occasion in which this
deficiency. Court has been called upon to construe the import of said article,
It may be true that the rule of this article (requiring that three the interest of justice would be better served, in our opinion, by
witnesses be presented if the will is contested and only one if no giving the parties ample opportunity to adduce additional
contest is had) was derived from the rule established for ordinary evidence, including expert witnesses, should the Court deem them
testaments (cf. Cabang vs. Delfinado, 45 Phil., 291; Tolentino vs. necessary.
Francisco, 57 Phil., 742). But it can not be ignored that the In view of the foregoing, the decision appealed from is set aside,
requirement can be considered mandatory only in the case of and the records ordered remanded to the Court of origin, with
ordinary testaments, precisely because the presence of at least instructions to hold a new trial in conformity with this opinion. But
three witnesses at the execution of ordinary wills is made by law evidence already on record shall not be retaken. No costs.
essential to their validity (Art. 805). Where the will is holographic, Bengzon, Padilla, Bautista Angelo, Labrador, Concepcion, Barrera,
no witness need be present (Art. 10), and the rule requiring and Gutierrez David, JJ., concur.
production of three witnesses must be deemed merely permissive Paras, C.J., Montemayor, and Endencia, JJ., took no part.
if absurd results are to be avoided.
Again, under Article 811, the resort to expert evidence is
conditioned by the words "if the Court deem it necessary", which 43 Codoy v. Calugay 312 SCRA 333 (1999)
reveal that what the law deems essential is that the Court should
371 Phil. 260
be convinced of the will's authenticity. Where the prescribed
number of witnesses is produced and the court is convinced by
their testimony that the will is genuine, it may consider it
unnecessary to call for expert evidence. On the other hand, if no
FIRST DIVISION
competent witness is available, or none of those produced is
convincing, the Court may still, and in fact it should, resort to [ G.R. No. 123486, August 12, 1999 ]
handwriting experts. The duty of the court, in fine, is to exhaust all
available lines of inquiry, for the state is as much interested as the EUGENIA RAMONAL CODOY, AND MANUEL RAMONAL,
proponent that the true intention of the testator be carried into PETITIONERS, VS. EVANGELINE R. CALUGAY, JOSEPHINE
SALCEDO, AND EUFEMIA PATIGAS, RESPONDENTS.
effect.

Commenting on analogous provisions of Article 691 of the Spanish
Civil Code of 1889, the noted Commentator, Mucius Scaevola (Vol.
12, 2nd Ed., p. 421), sagely remarks: D E C I S I O N
"La manera como esta concebida la redaccion del ultimo apartado

de dicho precepto induce la conclusion de que siempre o por lo PARDO, J.:
menos, en la mayor parte de los casos, el Juez debe acudir al
criterio pericial para que le ilustre acerca de la autenticidad del Before us is a petition for review on certiorari of the decision of the
testamento olografo, aunque ya esten insertas en los autos del Court of Appeals[1] and its resolution denying reconsideration,
expediente las declaraciones testificales. La prudencia con que el ruling:
Juez debe de proceder en resoluciones de transcendencia asi lo "Upon the unrebutted testimony of appellant Evangeline Calugay
exige, y la indole delicada y peligrosa del testamento olografo, lo and witness Matilde Ramonal Binanay, the authenticity of testators
hace necesario para mayor garantia de todos los intereses holographic will has been established and the handwriting and
comprometidos en aquel. signature therein (exhibit S) are hers, enough to probate said will.
En efecto, el cotejo pericial de letras puede ser una confirmacion Reversal of the judgment appealed from and the probate of the
facultativa del dicho profano de los testigos y un modo de holographic will in question be called for. The rule is that after
desvanecer las ultimas dudas que pudieran ocurrir al Juez acerca plaintiff has completed presentation of his evidence and the
de la autenticidad que trata de averiguar y declarar. Para eso se ha defendant files a motion for judgment on demurrer to evidence on
escrito la frase del citado ultimo apartado, (siempre que el Juez lo the ground that upon the facts and the law plaintiff has shown no
estime conveniente), haya habido o no testigos y dudaran o no



right to relief, if the motion is granted and the order to dismissal is purported Holographic Will of the late Matilde Seño Vda. de
reversed on appeal, the movant loses his right to present Ramonal, is denied for insufficiency of evidence and lack of
evidence in his behalf (Sec. 1 Rule 35 Revised Rules of Court). merits."[7]On December 12, 1990, respondents filed a notice of
Judgment may, therefore, be rendered for appellant in the instant appeal,[8] and in support of their appeal, the respondents once
case. again reiterated the testimony of the following witnesses, namely:
(1) Augusto Neri; (2) Generosa Senon; (3) Matilde Ramonal Binanay;
"Wherefore, the order appealed from is REVERSED and judgment (4) Teresita Vedad; (5) Fiscal Rodolfo Waga; and (6) Evangeline
rendered allowing the probate of the holographic will of the Calugay.
[2]
testator Matilde Seño Vda. de Ramonal." The facts are as follows:
To have a clear understanding of the testimonies of the witnesses,
On April 6, 1990, Evangeline Calugay, Josephine Salcedo and we recite an account of their testimonies.
Eufemia Patigas, devisees and legatees of the holographic will of
the deceased Matilde Seño Vda. de Ramonal, filed with the Augusto Neri, Clerk of Court, Court of First Instance of Misamis
Regional Trial Court, Misamis Oriental, Branch 18, a petition[3] for Oriental, where the special proceedings for the probate of the
probate of the holographic will of the deceased, who died on holographic will of the deceased was filed. He produced and
January 16, 1990. identified the. records of the case. The documents presented bear
the signature of the deceased, Matilde Seño Vda. de Ramonal, for
In the petition, respondents claimed that the deceased Matilde the purpose of laying the basis for comparison of the handwriting
Seño Vda. de Ramonal, was of sound and disposing mind when of the testatrix, with the writing treated or admitted as genuine by
she executed the will on August 30, 1978, that there was no fraud, the party against whom the evidence is offered.
undue influence, and duress employed in the person of the
testator, and the will was written voluntarily. Generosa Senon, election registrar of Cagayan de Oro, was
presented to produce and identify the voter's affidavit of the
The assessed value of the decedent's property, including all real decedent. However, the voters' affidavit was not produced for the
and personal property was about P400,000.00, at the time of her same was already destroyed and no longer available.
death.[4]

Matilde Ramonal Binanay, testified that the deceased Matilde
On June 28, 1990, Eugenia Ramonal Codoy and Manuel Ramonal Seño Vda. de Ramonal was her aunt, and that after the death of
[5]
filed an opposition to the petition for probate, alleging that the Matilde's husband, the latter lived with her in her parent's house
holographic will was a forgery and that the same is even illegible. for eleven (11) years, from 1958 to 1969. During those eleven (11)
This gives an impression that a "third hand" of an interested party years of close association with the deceased, she acquired
other than the "true hand" of Matilde Seño Vda. de Ramonal familiarity with her signature and handwriting as she used to
executed the holographic will. accompany her (deceased Matilde Seño Vda. de Ramonal) in
collecting rentals from her various tenants of commercial
Petitioners argued that the repeated dates incorporated or buildings, and the deceased always issued receipts. In addition to
appearing on the will after every disposition is out of the ordinary. this, she (witness Matilde Binanay) assisted the deceased in
If the deceased was the one who executed the will, and was not posting the records of the accounts, and carried personal letters of
forced, the dates and the signature should appear at the bottom the deceased to her creditors.
after the dispositions, as regularly done and not after every
disposition. And assuming that the holographic will is in the Matilde Ramonal Binanay further testified that at the time of the
handwriting of the deceased, it was procured by undue and death of Matilde Vda. de Ramonal, she left a holographic will dated
improper pressure and influence on the part of the beneficiaries, August 30, 1978, which was personally and entirely written, dated
or through fraud and trickery. and signed, by the deceased and that all the dispositions therein,
the dates, and the signatures in said will, were that of the
Respondents presented six (6) witnesses and various deceased.
documentary evidence. Petitioners instead of presenting their
[6]
evidence, filed a demurrer to evidence, claiming that Fiscal Rodolfo Waga testified that before he was appointed City
respondents failed to establish sufficient factual and legal basis for Fiscal of Cagayan de Oro, he was a practicing lawyer, and handled
the probate of the holographic will of the deceased Matilde Seño all the pleadings and documents signed by the deceased in
Vda. de Ramonal. connection with the intestate proceedings of her late husband, as
a result of which he is familiar with the handwriting of the latter. He
On November 26, 1990, the lower Court issued an order, the testified that the signature appearing in the holographic will was
dispositive portion of which reads: similar to that of the deceased, Matilde Seño Vda. de Ramonal, but
"WHEREFORE, in view of the foregoing consideration, the he can not be sure.
Demurrer to Evidence having being well taken, same is granted,
and the petition for probate of the document (Exhibit "S") on the The fifth witness presented was Mrs. Teresita Vedad, an



employee of the Department of Environment and Natural "(Sgd) Matilde Vda de Ramonal
Resources, Region 10. She testified that she processed the
application of the deceased for pasture permit and was familiar "August 30, 1978
with the signature of the deceased, since the deceased signed
documents in her presence, when the latter was applying for "6. Bury me where my husband Justo is ever buried.
pasture permit.
"(Sgd) Matilde Vda de Ramonal
Finally, Evangeline Calugay, one of the respondents, testified that
she had lived with the deceased since birth, and was in fact "August 30,1978
adopted by the latter. That after a long period of time she became
familiar with the signature of the deceased. She testified that the "Gene and Manuel:
signature appearing in the holographic will is the true and genuine
signature of Matilde Seño Vda. de Ramonal. "Follow my instruction in order that I will rest peacefully.

The holographic will which was written in Visayan, is translated in "Mama
English as follows:
"Matilde Vda de RamonalOn October 9, 1995, the Court of
"Instruction Appeals, rendered decision[9] ruling that the appeal was
"August 30, 1978 meritorious. Citing the decision in the case of Azaola vs. Singson,
109 Phil. 102, penned by Mr. Justice J. B. L. Reyes, a recognized
"1. My share at Cogon, Raminal Street, for Evangeline Calugay. authority in civil law, the Court of Appeals held:
"x x x even if the genuineness of the holographic will were
"(Sgd) Matilde Vda de Ramonal contested, we are of the opinion that Article 811 of our present civil
code can not be interpreted as to require the compulsory
"August 30, 1978 presentation of three witnesses to identify the handwriting of the
testator, under penalty of having the probate denied. Since no
"2. Josefina Salcedo must be given 1,500 square meters at witness may have been present at the execution of the
Pinikitan Street. holographic will, none being required by law (art. 810, new civil
code), it becomes obvious that the existence of witnesses
"(Sgd) Matilde Vda de Ramonal possessing the requisite qualifications is a matter beyond the
control of the proponent. For it is not merely a question of finding
"August 30, 1978 and producing any three witnesses; they must be witnesses "who
know the handwriting and signature of the testator" and who can
"3. My jewelry's shall be divided among: declare (truthfully, of course, even if the law does not express)
"that the will and the signature are in the handwriting of the
"1. Eufemia Patigas testator." There may be no available witness acquainted with the
testator's hand; or even if so familiarized, the witness may be
"2. Josefina Salcedo unwilling to give a positive opinion. Compliance with the rule of
paragraph 1 of article 811 may thus become an impossibility. That is
"3. Evangeline Calugay evidently the reason why the second paragraph of article 811
prescribes that--
"(Sgd)Matilde Vda de Ramonal
"in the absence of any competent witness referred to in the
"August 30, 1978 preceding paragraph, and if the court deems it necessary, expert
testimony may be resorted to."
"4. I bequeath my one (1) hectare land at Mandumol, Indahag to
Evangeline R. Calugay "As can be seen, the law foresees the possibility that no qualified
witness may be found (or what amounts to the same thing, that no
"(Sgd) Matilde Vda de Ramonal competent witness may be willing to testify to the authenticity of
the will), and provides for resort to expert evidence to supply the
"August 30, 1978 deficiency.

"5. Give the 2,500 Square Meters at Sta. Cruz Ramonal Village in "It may be true that the rule of this article (requiring that three
favor of Evangeline R. Calugay, Helen must continue with the Sta. witnesses be presented if the will is contested and only one if no
Cruz, once I am no longer around. contest is had) was derived from the rule established for ordinary
testaments (CF Cabang vs. Delfinado, 45 PHIL 291; Tolentino v.


Francisco, 57 PHIL 742). But it can not be ignored that the evidence to prove that the date, text, and signature on the
requirement can be considered mandatory only in case of ordinary holographic will were written entirely in the hand of the
testaments, precisely because the presence of at least three testatrix.
witnesses at the execution of ordinary wills is made by law
essential to their validity (Art. 805). Where the will is holographic, (3) Whether or not the Court of Appeals erred in not analyzing the
no witness need be present (art.10), and the rule requiring signatures in the holographic will of Matilde Seño Vda. de
production of three witnesses must be deemed merely Ramonal.
permissive if absurd results are to be avoided. In this petition, the petitioners ask whether the provisions of Article
811 of the Civil Code are permissive or mandatory. The article
"Again, under Art.811, the resort to expert evidence is conditioned provides, as a requirement for the probate of a contested
by the words "if the court deem it necessary", which reveal that holographic will, that at least three witnesses explicitly declare that
what the law deems essential is that the court should be the signature in the will is the genuine signature of the testator.
convinced of the will's authenticity. Where the prescribed number
of witnesses is produced and the court is convinced by their We are convinced, based on the language used, that Article 811 of
testimony that the will is genuine, it may consider it unnecessary to the Civil Code is mandatory. The word "shall" connotes a
call for expert evidence. On the other hand, if no competent mandatory order. We have ruled that "shall" in a statute commonly
witness is available, or none of those produced is convincing, the denotes an imperative obligation and is inconsistent with the idea
court may still, and in fact it should resort to handwriting experts. of discretion and that the presumption is that the word "shall,"
The duty of the court, in fine, is to exhaust all available lines of when used in a statute is mandatory."[11]

inquiry, for the state is as much interested as the proponent that
the true intention of the testator be carried into effect. Laws are enacted to achieve a goal intended and to guide against
an evil or mischief that aims to prevent. In the case at bar, the goal
"Paraphrasing Azaola vs. Singson, even if the genuineness of the to achieve is to give effect to the wishes of the deceased and the
holographic will were contested, Article 811 of the civil code cannot evil to be prevented is the possibility that unscrupulous individuals
be interpreted as to require the compulsory presentation of three who for their benefit will employ means to defeat the wishes of the
witnesses to identify the handwriting of the testator, under penalty testator.
of the having the probate denied. No witness need be present in
the execution of the holographic will. And the rule requiring the So, we believe that the paramount consideration in the present
production of three witnesses is merely permissive. What the law petition is to determine the true intent of the deceased. An
deems essential is that the court is convinced of the authenticity of exhaustive and objective consideration of the evidence is
the will. Its duty is to exhaust all available lines of inquiry, for the imperative to establish the true intent of the testator.
state is as much interested in the proponent that the true intention
of the testator be carried into effect. And because the law leaves it It will be noted that not all the witnesses presented by the
to the trial court to decide if experts are still needed, no respondents testified explicitly that they were familiar with the
unfavorable inference can be drawn from a party's failure to offer handwriting of the testator. In the case of Augusto Neri, clerk of
expert evidence, until and unless the court expresses court, Court of First Instance, Misamis Oriental, he merely
[10]
dissatisfaction with the testimony of the lay witnesses. According identified the record of Special Proceedings No. 427 before said
to the Court of Appeals, Evangeline Calugay, Matilde Ramonal court. He was not presented to declare explicitly that the signature
Binanay and other witnesses definitely and in no uncertain terms appearing in the holographic was that of the deceased.
testified that the handwriting and signature in the holographic will
were those of the testator herself. Generosa E. Senon, the election registrar of Cagayan de Oro City,
was presented to identify the signature of the deceased in the
Thus, upon the unrebutted testimony of appellant Evangeline voters' affidavit, which was not even produced as it was no longer
Calugay and witness Matilde Ramonal Binanay, the Court of available.
Appeals sustained the authenticity of the holographic will and the
handwriting and signature therein, and allowed the will to probate. Matilde Ramonal Binanay, on the other hand, testified that:
Q. And you said for eleven (11) years Matilde Vda de Ramonal
Hence, this petition. resided with your parents at Pinikitan, Cagayan de Oro City.
Would you tell the court what was your occupation or how did
The petitioners raise the following issues: Matilde Vda de Ramonal keep herself busy that time?
(1) Whether or not the ruling of the case of Azaola vs. Singson, A. Collecting rentals.
109 Phil. 102, relied upon by the respondent Court of Appeals,
was applicable to the case. Q. From where?
A. From the land rentals and commercial buildings at
(2) Whether or not the Court of Appeals erred in holding that Pabayo-Gomez streets.[12]
private respondents had been able to present credible



x x x document you are referring to?

A. Yes, sir.
Q. Who sometime accompany her?
A. I sometimes accompany her Q. Showing to you this exhibit "S", there is that handwritten
"tugon", whose handwriting is this?
Q. In collecting rentals does she issue receipts? A. My aunt.
A. Yes, sir.[13]
Q. Why do you say this is the handwriting of your aunt?
x x x A. Because I am familiar with her signature.[16]
What Ms. Binanay saw were pre-prepared receipts and letters of
Q. Showing to you the receipt dated 23 October 1979, is this the the deceased, which she either mailed or gave to her tenants. She
one you are referring to as one of the receipts which she did not declare that she saw the deceased sign a document or
issued to them? write a note.
A. Yes, sir.
Further, during the cross-examination, the counsel for petitioners
Q. Now there is that signature of Matilde vda. De Ramonal, elicited the fact that the will was not found in the personal
whose signature is that Mrs. Binanay? belongings of the deceased but was in the possession of Ms.
A. Matilde vda. De Ramonal. Binanay. She testified that:
Q. Mrs. Binanay, when you were asked by counsel for the
Q. Why do you say that that is a signature of Matilde vda. De petitioners if the late Matilde Seno vda de Ramonal left a will
Ramonal? you said, yes?
A. I am familiar with her signature. A. Yes, sir.

Q. Now, you tell the court Mrs. Binanay, whether you know Q. Who was in possession of that will?
Matilde vda de Ramonal kept records of the accounts of her A. I.
tenants?
A. Yes, sir. Q. Since when did you have the possession of the will?
A. It was in my mother's possession.
Q. Why do you say so?
A. Because we sometimes post a record of accounts in behalf of Q. So, it was not in your possession?
Matilde Vda. De Ramonal. A. Sorry, yes.

Q. How is this record of accounts made? How is this reflected? Q. And when did you come into possession since as you said this
A. In handwritten.[14] was originally in the possession of your mother?
A. 1985.[17]
x x x
x x x
Q. In addition to collection of rentals, posting records of accounts
of tenants and deed of sale which you said what else did you Q. Now, Mrs. Binanay was there any particular reason why your
do to acquire familiarity of the signature of Matilde Vda De mother left that will to you and therefore you have that in your
Ramonal? possession?
A. Posting records. A. It was not given to me by my mother, I took that in the
aparador when she died.
Q. Aside from that?
A. Carrying letters. Q. After taking that document you kept it with you?
A. I presented it to the fiscal.
Q. Letters of whom?
A. Matilde Q. For what purpose?
A. Just to seek advice.
Q. To whom?
[15]
A. To her creditors. Q. Advice of what?
A. About the will.[18]
x x x In her testimony it was also evident that Ms. Binanay kept the fact
about the will from petitioners, the legally adopted children of the
Q. You testified that at the time of her death she left a will. I am deceased. Such actions put in issue her motive of keeping the will
showing to you a document with its title "tugon" is this the a secret to petitioners and revealing it only after the death of


Matilde Seño Vda. de Ramonal. Q. You will also notice Mrs. Binanay that it is not only with the
questioned signature appearing in the alleged holographic will
In the testimony of Ms. Binanay, the following were established: marked as Exhibit X but in the handwriting themselves, here
Q. Now, in 1978 Matilde Seno Vda de Ramonal was not yet a you will notice the hesitancy and tremors, do you notice that?
sickly person is that correct? A. Yes, sir.[21]
A. Yes, sir. Evangeline Calugay declared that the holographic will was written,
dated and signed in the handwriting of the testator. She testified
Q. She was up and about and was still uprightly and she could that:
walk agilely and she could go to her building to collect rentals, Q. You testified that you stayed with the house of the spouses
is that correct? Matilde and Justo Ramonal for the period of 22 years. Could
[19]
A. Yes, sir. you tell the court the services if any which you rendered to
Matilde Ramonal?
x x x A. During my stay I used to go with her to the church, to the
market and then to her transactions.
Q. Now, let us go to the third signature of Matilde Ramonal. Do
you know that there are retracings in the word Vda.? Q. What else? What services that you rendered?
A. Yes, a little. The letter L is continuous. A. After my college days I assisted her in going to the bank,
paying taxes and to her lawyer.
Q. And also in Matilde the letter L is continued to letter D?
A. Yes, sir. Q. What was your purpose of going to her lawyer?
A. I used to be her personal driver.
Q. Again the third signature of Matilde Vda de Ramonal the letter
L in Matilde is continued towards letter D. Q. In the course of your stay for 22 years did you acquire
A. Yes, sir. familiarity of the handwriting of Matilde Vda de Ramonal?
A. Yes, sir.
Q. And there is a retracing in the word Vda.?
[20]
A. Yes, sir. Q. How come that you acquired familiarity?
A. Because I lived with her since birth.[22]
x x x
x x x
Q. Now, that was 1979, remember one year after the alleged
holographic will. Now, you identified a document marked as Q. Now, I am showing to you Exhibit S which is captioned "tugon"
Exhibit R. This is dated January 8,1978 which is only about dated Agosto 30, 1978 there is a signature here below item
eight months from August 30,1978. Do you notice that the No. 1, will you tell this court whose signature is this?
signature Matilde Vda de Ramonal is beautifully written and A. Yes, sir, that is her signature.
legible?
A. Yes, sir the handwriting shows that she was very exhausted. Q. Why do you say that is her signature?
A. I am familiar with her signature.[23]
Q. You just say that she was very exhausted while that in 1978 So, the only reason that Evangeline can give as to why she was
she was healthy was not sickly and she was agile. Now, you familiar with the handwriting of the deceased was because she
said she was exhausted? lived with her since birth. She never declared that she saw the
A. In writing. deceased write a note or sign a document.

Q. How did you know that she was exhausted when you were not The former lawyer of the deceased, Fiscal Waga, testified that:
present and you just tried to explain yourself out because of Q. Do you know Matilde Vda de Ramonal?
the apparent inconsistencies? A. Yes, sir I know her because she is my godmother the husband
A. That was I think. (sic) is my godfather. Actually I am related to the husband by
consanguinity.
Q. Now, you already observed this signature dated 1978, the
same year as the alleged holographic will. In exhibit I, you will Q. Can you tell the name of the husband?
notice that there is no retracing; there is no hesitancy and the A. The late husband is Justo Ramonal.[24]
signature was written on a fluid movement. x x x And in fact ,
the name Eufemia R. Patigas here refers to one of the x x x
petitioners?
A. Yes, sir. Q. Can you tell this court whether the spouses Justo Ramonal
and Matilde Ramonal have legitimate children?



A. As far as I know they have no legitimate children.[25] Q. Also in item no. 3 there is that signature Matilde Vda de
Ramonal, can you tell the court whose signature is that?
x x x A. As I said, this signature also seems to be the signature of
Matilde vda de Ramonal.
Q. You said after becoming a lawyer you practice your
profession? Where? Q. Why do you say that?
A. Here in Cagayan de Oro City. A. Because there is a similarity in the way it is being written.

Q. Do you have services rendered with the deceased Matilde vda Q. How about this signature in item no. 4, can you tell the court
de Ramonal? whose signature is this?
A. I assisted her in terminating the partition, of properties. A. The same is true with the signature in item no. 4. It seems that
they are similar.[29]
Q. When you said assisted, you acted as her counsel? Any sort of
counsel as in what case is that, Fiscal? x x x
A. It is about the project partition to terminate the property, which
[26]
was under the court before. Q. Mr. Prosecutor, I heard you when you said that the signature of
Matilde Vda de Ramonal Appearing in exhibit S seems to be
x x x the signature of Matilde vda de Ramonal?
A. Yes, it is similar to the project of partition.
Q. Appearing in special proceeding no. 427 is the amended
inventory which is marked as exhibit N of the estate of Justo Q. So you are not definite that this is the signature of Matilde
Ramonal and there appears a signature over the type written vda de Ramonal. You are merely supposing that it seems to
word Matilde vda de Ramonal, whose signature is this? be her signature because it is similar to the signature of the
A. That is the signature of Matilde Vda de Ramonal. project of partition which you have made?
A. That is true.[30]
Q. Also in exhibit n-3, whose signature is this? From the testimonies of these witnesses, the Court of Appeals
A. This one here that is the signature of Mrs. Matilde vda de allowed the will to probate and disregard the requirement of three
[27]
Ramonal. witnesses in case of contested holographic will, citing the decision
in Azaola vs. Singson,[31] ruling that the requirement is merely
x x x directory and not mandatory.

Q. Aside from attending as counsel in that Special Proceeding In the case of Ajero vs. Court of Appeals,[32] we said that "the
Case No. 427 what were the other assistance wherein you object of the solemnities surrounding the execution of wills is to
were rendering professional service to the deceased Matilde close the door against bad faith and fraud, to avoid substitution of
Vda de Ramonal? wills and testaments and to guaranty their truth and authenticity.
A. I can not remember if I have assisted her in other matters but if Therefore, the laws on this subject should be interpreted in such a
there are documents to show that I have assisted then I can way as to attain these primordial ends. But, on the other hand, also
recall.[28] one must not lose sight of the fact that it is not the object of the
law to restrain and curtail the exercise of the right to make a will."
x x x
However, we cannot eliminate the possibility of a false document
Q. Now, I am showing to you exhibit S which is titled "tugon", being adjudged as the will of the testator, which is why if the
kindly go over this document, Fiscal Waga and tell the court holographic will is contested, that law requires three witnesses to
whether you are familiar with the handwriting contained in that declare that the will was in the handwriting of the deceased.
document marked as exhibit "S"?
A. I am not familiar with the handwriting. The will was found not in the personal belongings of the deceased
but with one of the respondents, who kept it even before the
Q. This one, Matilde Vda de Ramonal, whose signature is this? death of the deceased. In the testimony of Ms. Binanay, she
A. I think this signature here it seems to be the signature of Mrs. revealed that the will was in her possession as early as 1985, or
Matilde vda de Ramonal. five years before the death of the deceased.

Q. Now, in item No. 2 there is that signature here of Matilde Vda There was no opportunity for an expert to compare the signature
de Ramonal, can you tell the court whose signature is this? and the handwriting of the deceased with other documents signed
A. Well, that is similar to that signature appearing in the project of and executed by her during her lifetime. The only chance at
partition. comparison was during the cross-examination of Ms. Binanay
when the lawyer of petitioners asked Ms. Binanay to compare the


documents which contained the signature of the deceased with three witnesses, who signed with her all the pages of said
that of the holographic will and she is not a handwriting expert. documents. The testatrix died on the 6th of January, 1921, and, as
Even the former lawyer of the deceased expressed doubts as to the record shows, the executor appointed in the will, Pedro Unson,
the authenticity of the signature in the holographic will. filed in the Court of First Instance of Laguna on the 19th of January
of the same year an application for the probate of the will and the
A visual examination of the holographic will convince us that the issuance of the proper letters of administration in his favor.
strokes are different when compared with other documents
written by the testator. The signature of the testator in some of the To said application an opposition was presented by Antonio
disposition is not readable. There were uneven strokes, retracing Abella, Ignacia Abella, Avicencia Abella, and Santiago Vito,
and erasures on the will. alleging that the supposed will of the deceased Zalamea was not
executed in conformity with the provisions of the law, inasmuch as
Comparing the signature in the holographic will dated August 30, it was not paged correlatively in letters, nor was there any
[33]
1978, and the signatures in several documents such as the attestation clause in it, nor was it signed by the testatrix and the
application letter for pasture permit dated December 30, 1980,[34] witnesses in the presence of each other.
[35]
and a letter dated June 16, 1978, the strokes are different. In the Trial having been held, the judge a quo overruled the opposition of
letters, there are continuous flows of the strokes, evidencing that the contestants, and ordered the probate of the will, Exhibit A, and
there is no hesitation in writing unlike that of the holographic will. the inventory, Exhibit A-1, holding that both documents contained
We, therefore, cannot be certain that the holographic will was in the true and last will of the deceased Josef a Zalamea.
the handwriting by the deceased. From the judgment of the court below, the contestants have
appealed, and in their brief they assign three errors, which, in their
IN VIEW WHEREOF, the decision appealed from is SET ASIDE. opinion, justify the reversal of the judgment appealed from.
The records are ordered remanded to the court of origin with The first error assigned by the appellants as committed by the
instructions to allow petitioners to adduce evidence in support of court below is its finding to the effect that Exhibit A, said to be the
their opposition to the probate of the holographic will of the will of the deceased Josefa Zalamea, was executed with all the
deceased Matilde Seño Vda. de Ramonal. solemnities required by the law.
The arguments advanced by appellants' counsel in support of the
No costs. first assignment of error tend to impeach the credibility of the
witnesses for the proponent, specially that of Eugenio Zalamea.
SO ORDERED. We have made a careful examination of the evidence, but have not
found anything that would justify us in disturbing the finding of the
Davide Jr., C.J., (Chairman), Puno, Kapunan, and Ynares-Santiago, court a quo. The attesting witnesses, Eugenio Zalamea and
JJ., concur. Gonzalo Abaya, clearly testify that together with the other witness
to the will, Pedro de Jesus, they did sign each and every page of
the will and of the inventory in the presence of each other and of
the testatrix, as the latter did likewise sign all the pages of the will
V. INCORPORATION OF DOCUMENT BY REFERENCE - and of the inventory in their presence.
Art. 827 In their brief the appellants intimate that one of the pages of the
44 Unson v. Abella G.R. No. 17857 June 12, 1922 will was not signed by the testatrix, nor by the witnesses on the
43 Phil. 494 day of the execution of the will, that is, on the 19th of July, 1918,
basing their contention on the testimony of Aurelio Palileo, who

says that on one occasion Gonzalo Abaya told him that one of the
[ G. R. No. 17857, June 12, 1922 ] pages of the will had not been signed by the witnesses, nor by the
testatrix on the day of its execution. Palileo's testimony is entirely
IN RE WILL OF JOSEFA ZALAMEA Y ABELLA, DECEASED. contradicted by Gonzalo Abaya not only in the direct, but in the
PEDRO UNSON, PETITIONER AND APPELLEE, VS. rebuttal, evidence as well. To our mind, Palileo's testimony cannot
ANTONIO ABELLA ET AL., OPPONENTS AND prevail over that of the attesting witnesses, Gonzalo Abaya and
APPELLANTS. Eugenio Zalamea. The appellants impeach the credibility of

Eugenio Zalamea, for having made a sworn declaration before the
D E C I S I O N
justice of the peace of Santa Cruz, Laguna, before the trial of this
case, to the effect that he was really one of the witnesses to the
VILLAMOR, J.: will in question, which fact was corroborated by himself at the trial.
The appellants take Zalamea's testimony in connection with the
On July 19, 1918, Doña Josefa Zalamea y Abella, single, 60 years dismissal of a criminal case against a nephew of his, in whose
old, who was residing in the municipality of Pagsanjan, Province of success he was interested, and infer from this fact the partiality of
Laguna, executed her last will and testament with an attached his testimony. We deem this allegation of little importance to
inventory of her properties, Exhibits A and A-1, in the presence of impeach the credibility of the witness Zalamea, especially because



his testimony is corroborated by the other attesting witness, were it not for a fact now to be mentioned, this court would
Gonzalo Abaya, and by attorney Luis Abaya, who had prepared probably be compelled to reverse this case on the ground that the
the testament at the instance of the testatrix. The foregoing is execution of the will had not been proved by a sufficient number
sufficient for us to conclude that the first assignment of error made of attesting witnesses.
by the appellants is groundless. "It appears, however, that this point was not raised by the
The appellants contend that the court below erred in admitting the appellant in the lower court either upon the submission of the
will to probate notwithstanding the omission of the proponent to cause for determination in that court or upon the occasion of the
produce one of the attesting witnesses. filing of the motion for a new trial. Accordingly it is insisted for the
At the trial of this case the attorneys for the proponent stated to appellee that this question cannot now be raised for the first time
the court that they had necessarily to omit the testimony of Pedro in this court. We believe this point is well taken, and the first
de Jesus, one of the persons who appear to have witnessed the assignment of error must be declared not to be well taken. This
execution of the will, for there were reasonable grounds to believe exact question has been decided by the Supreme Court of
that said witness was openly hostile to the proponent, inasmuch California adversely to the contention of the appellant, and we see
as since the announcement of the trial of the petition for the no reason why the same rule of practice should not be observed
probate of the will, said witness has been in frequent by us. (Estate of McCarty, 58 Cal., 335, 337.)
communication with the contestants and their attorney, and has "There are at least two reasons why the appellate tribunals are
refused to hold any conference with the attorneys for the disinclined to permit certain questions to be raised for the first
proponent. In reply to this, the attorney for the contestants, said to time in the second instance. In the first place it eliminates the
the court, "without discussing for the present whether or not in judicial criterion of the Court of First Instance upon the point there
view of those facts (the facts mentioned by the attorneys for the presented and makes the appellate court in effect a court of first
petitioner), in the hypothesis that the same are proven, they are instance with reference to that point, unless the case is remanded
relieved from producing that witness, for while it is a matter not for a new trial. In the second place, it permits, if it does not
decided, it is a recognized rule that the fact that a witness is encourage, attorneys to trifle with the administration of justice by
hostile does not justify a party to omit his testimony; without concealing from the trial court and from their opponent the actual
discussing this, I say, I move that said statement be stricken out, point upon which reliance is placed, while they are engaged in
and if the proponent wants these facts to stand in the record, let other discussions more simulated than real. These considerations
him prove them." The court a quo ruled, saying, "there is no need." are, we think, decisive.
To this ruling of the court, the attorney for the appellants did not "In ruling upon the point above presented we do not wish to be
take any exception. understood as laying down any hard and fast rule that would
In the case of Avera vs. Garcia and Rodriguez (42 Phil., 145), prove an embarrassment to this court in the administration of
recently decided by this court, in deciding the question whether a justice in the future. In one way or another we are constantly here
will can be admitted to probate, where opposition is made, upon considering aspects of cases and applying doctrines which have
the proof of a single attesting witness, without producing or escaped the attention of all persons concerned in the litigation
accounting for the absence of the other two, it was said; "while it is below; and this is necessary if this court is to contribute the part
undoutedly true that an uncontested will may be proved by the due from it in the correct decision of the cases brought before it.
testimony of only one of the three attesting witnesses, What we mean to declare is that when we believe that substantial
nevertheless in Cabang vs. Delfinado (34 Phil., 291), this court justice has been done in the Court of First Instance, and the point
declared after an elaborate examination of the American and relied on for reversal in this court appears to be one which ought
English authorities that when a contest is instituted, all of the properly to have been presented in that court, we will in the
attesting witnesses must be examined, if alive and within reach of exercise of a sound discretion ignore such question upon appeal;
the process of the court. and this is the more proper when the question relates to a defect
"In the present case no explanation was made at the trial as to why which might have been cured in the Court of First Instance if
all three of the attesting witnesses were not produced, but the attention had been called to it there. In the present case, if the
probable reason is found in the fact that, although the petition for appellant had raised this question in the lower court, either at the
the probate of this will had been pending from December 21, 1917, hearing or upon a motion for a new trial, that court would have had
until the date set for the hearing, which was April 5,1919, no formal the power, and it would have been its duty, considering the tardy
contest was entered until the very day set for the hearing; and it is institution of the contest, to have granted a new trial in order that
probable that the attorney for the proponent, believing in good all the witnesses to the will might be brought into court. But
faith that probate would not be contested, repaired to the court instead of thus calling the error to the attention of the court and his
with only one of the three attesting witnesses at hand, and upon adversary, the point is first raised by the appellant in this court. We
finding that the will was contested, incautiously permitted the case hold that this is too late.
to go to proof without asking for a postponement of the trial in "Properly understood, the case of Cabang vs. Delfinado, supra,
order that he might produce all the attesting witnesses. contains nothing inconsistent with the ruling we now make, for it
"Although this circumstance may explain why the three witnesses appears from the opinion in that case that the proponent of the will
were not produced, it does not in itself supply any basis for had obtained an order for a republication and new trial for the
changing the rule expounded in the case above referred to; and avowed purpose of presenting the two additional attesting



witnesses who had not been previously examined, but composed of ten folios in our presence; and she declared this to
nevertheless subsequently failed without any apparent reason to be her last will and testament and at her request we have affixed
take their testimony. Both parties in that case were therefore fully hereunto our respective signatures in her presence and in the
apprised that the question of the number of witnesses necessary presence of each other as witnesses to the will and the inventory
to prove the will was in issue in the lower court." this 19th of July, 1918, at Pagsanjan, Laguna, P. I.
In the case at bar, we do not think this question properly to have
been raised at the trial, but in the memorandum submitted by the
attorney for the appellants to the trial court, he contended that the (Sgd.) "GONZALO ABAYA,
will could not be admitted to probate because one of the "EUGENIO
witnesses to the will was not produced, and that the voluntary ZALAMEA,
non-production of this witness raises a presumption against the "PEDRO DE JESUS."
pretension of the proponent. The trial court found that the In view of the fact that the inventory is referred to in the will as an
evidence introduced by the proponent, consisting of the testimony integral part of it, we find that the foregoing attestation clause is in
of the two attesting witnesses and the other witness who was compliance with section 1 of Act No. 2645, which requires this
present at the execution, and had charge of the preparation of the solemnity for the validity of a will, and makes unnecessary any
will and the inventory, Exhibits A and A-1, was sufficient. As other attestation clause at the end of the inventory.
announced in Cabang vs. Delfinado, supra, the general rule is that, As to the paging of the will in Arabic numerals, instead of in letters,
where opposition is made to the probate of a will, the attesting we adhere to the doctrine announced in the case of Aldaba vs.
witnesses must be produced. But there are exceptions to this rule, Roque (p. 378, ante), recently decided by this court. In that case
for instance, when a witness is dead, or cannot be served with the validity of the will was assailed on the ground that its folios
process of the court, or his reputation for truth has been were paged with the letters A, B, C, etc., instead of with the betters
questioned or he appears hostile to the cause of the proponent. In "one," "two," "three," etc. It was held that this way of numbering the
such cases, the will may be admitted to probate without the pages of a will is in compliance with the spirit of the law, inasmuch
testimony of said witness, if, upon the other proofs adduced in the as either one of these methods indicates the correlation of the
case, the court is satisfied that the will has been duly executed. pages and serves to prevent the abstraction of any of them. In the
Wherefore, we find that the non-production of the attesting course of the decision, we said: "It might be said that the object of
witness, Pedro de Jesus, as accounted for by the attorney for the the law in requiring that the, paging be made in letters ,is to make
proponent at the trial, does not render void the decree of the court falsification more difficult, but it should be noted that since all the
a quo, allowing the probate. pages of the testament are signed at the margin by the testatrix
But supposing that said witness, when cited, had testified and the witnesses, the difficulty of forging the signatures in either
adversely to the application, this would not by itself have change case remains the same. In other words the more or less degree of
the result reached by the court a quo, for section 632 of the Code facility to imitate the writing of the letters A, B, C, etc., does not
of Civil Procedure provides that a will can be admitted to probate, make for the easiness to forge the signatures. And as in the
notwithstanding that one or more witnesses do not remember present case there exists the guaranty of the authenticity of the
having attested it, provided the court is satisfied upon the testament, consisting in the signatures on the left margins of the
evidence adduced that the will has been executed and signed in testament and the paging thereof as declared in the attestation
the manner prescribed by the law. clause, the holding of this court in Abangan vs. Abangan (40 Phil.,
The last error assigned by the appellants is made to consist in the
476), might as well be repeated:
probate of the inventory, Exhibit A-1, despite the fact that this " 'The object of the solemnities surrounding the execution of wills
exhibit has no attestation clause in it, and its paging is made in is to close the door against bad faith and fraud, to avoid
Arabic numerals and not in letters.
substitution of wills and testaments and to guaranty their truth and
In the third paragraph of the will, reference is made to the authenticity. Therefore the laws on this subject should be
inventory, Exhibit A-1, and at the bottom of said will, the testatrix interpreted in such a way as to attain these primordial ends. But,
Josef a Zalamea says:
on the other hand, also one must not lose sight of the fact that it is
"In witness whereof, I sign this will composed of ten folios not the object of the law to restrain and curtail the exercise of the
including the page containing the signatures and the attestation of right to make a will. So when an interpretation already given
the witnesses; I have likewise signed the inventory attached to this
assures such ends, any other interpretation whatsoever, that adds
will composed of ten folios in the presence of Messrs. Gonzalo nothing but demands more requisites entirely unnecessary,
Abaya, Eugenio Zalamea, Pedro de Jesus, in this municipality of useless, and frustrative of the testator's last will, must be
Pagsanjan, Laguna, Philippine Islands, this 19th of July, 1918."
disregarded.'
And the attestation clause is as follows: “In that case the testament was written on one page, and the
"The foregoing will composed of ten folios including this one attestation clause on another. Neither one of these pages was
whereunto we have affixed our signatures, as well as the inventory numbered in any way, and it was held: 'In a will consisting of two
of the properties of Doña Josefa Zalamea y Abella, was read to sheets the first of which contains all the testamentary dispositions
Doña Josef a Zalamea y Abella, and the latter affixed her name to and is signed at the bottom by the testator and three witnesses
the last, and each and every page of this will and inventory


and the second contains only the attestation clause and is signed VI. CODICILS
also at the bottom by the three witnesses, it is not necessary that
VII. REVOCATION OF WILLS AND TESTAMENTARY
both sheets be further signed on their margins by the testator and
DISPOSITION
the witnesses, or be paged.'
45 Maloto v. CA G.R. No. 76464 Feb 29, 1988 (158
"This means that, according to the particular case, the omission of
SCRA 451)
paging does not necessarily render the testament invalid. 242 Phil. 179
"The law provides that the numbering of the pages should be in
letters placed on the upper part of the sheet, but if the paging
should be placed in the lower part, would the testament be void

for this sole reason? We believe not. The law also provides that the
testator and the witnesses must sign the left margin of each of the SECOND DIVISION
sheets of the testament; but if they should sign on the right [ G.R. No. 76464, February 29, 1988 ]
margin, would this fact also annul the testament? Evidently not.
This court has already held in Avera vs. Garcia and Rodriguez (42 TESTATE ESTATE OF THE LATE ADRIANA MALOTO,
Phil., 145) : ALDINA MALOTO CASIANO, CONSTANCIO MALOTO,
" 'It is true that the statute says that the testator and the PURIFICACION MIRAFLOR, ROMAN CATHOLIC CHURCH
instrumental witnesses shall sign their names on the left margin of OF MOLO, AND ASILO DE MOLO, PETITIONERS, VS.
each and every page; and it is undeniable that the general COURT OF APPEALS, PANFILO MALOTO AND FELINO
MALOTO, RESPONDENTS.
doctrine is to the effect that all statutory requirements as to the

execution of wills must be fully complied with. The same doctrine
is also deducible from cases heretofore decided by this court.'
D E C I S I O N
" 'Still some details at times creep into legislative enactments
which are so trivial that it would be absurd to suppose that the
Legislature could have attached any decisive importance to them. SARMIENTO, J.:
The provision to the effect that the signatures of the testator and
witnesses shall be written on the left margin of each page-rather This is not the first time that the parties to this case come to us. In
than on the right margin-seems to be of this character. So far as fact, two other cases directly related to the present one and
concerns the authentication of the will, and of every part thereof, it involving the same parties had already been decided by us in the
can make no possible difference whether the names appear on past. In G.R. No. L-30479,[1] which was a petition for certiorari and
the left or on the right margin, provided they are on one or the mandamus instituted by the petitioners herein, we dismissed the
other. In Caraig vs. Tatlonghari (R. G. No. 12558, decided March 23, petition ruling that the more appropriate remedy of the petitioners
1918, not reported), this court declared a will void which was totally is a separate proceeding for the probate of the will in question.
lacking in the signatures required to be written on its several Pursuant to the said ruling, the petitioners commenced in the then
pages; and in the case of Re Estate of Saguinsin (41 Phil., 875), a Court of First Instance of Iloilo, Special Proceeding No. 2176, for
will was likewise declared void which contained the necessary the probate of the disputed will, which was opposed by the private
signatures on the margin of each leaf (folio), but not in the margin respondents presently, Panfilo and Felino, both surnamed Maloto.
of each page containing written matter.' The trial court dismissed the petition on April 30, 1970.
"We do not desire to intimate that the numbering in letters is a Complaining against the dismissal, again, the petitioners came to
requisite of no importance. But since its principal object is to give this Court on a petition for review by certiorari.[2] Acting on the said
the correlation of the pages, we hold that this object may be petition, we set aside the trial court's order and directed it to
attained by writing one, two, three, etc., as well as by writing A, B, proceed to hear the case on the merits. The trial court, after
C, etc." hearing, found the will to have already been revoked by the
We see no reason why the same rule should not be applied where testatrix, Adriana Maloto, and thus, denied the petition. The
the paging is in Arabic numerals, instead of in letters, as in the petitioners appealed the trial court's decision to the Intermediate
inventory in question. So that, adhering to the view taken by this Appellate Court which, on June 7, 1985, affirmed the order. The
court in the case of Abangan vs. Abangan, and followed in Aldaba petitioners' motion for reconsideration of the adverse decision
vs. Roque, with regard to the appreciation of the solemnities of a proved to be of no avail, hence, this petition.
will, we find that the judgment appealed from should be, as is
hereby, affirmed with the costs against the appellants. So ordered. For a better understanding of the controversy, a factual account
Araullo, C. J., Malcolm, Avanceña, Ostrand, Johns, and would be a great help.
Romualdez, JJ, concur.
On October 20, 1963, Adriana Maloto died leaving as heirs her
niece and nephews, the petitioners Aldina Maloto-Casiano and
Constancio Maloto, and the private respondents Panfilo Maloto
and Felino Maloto. Believing that the deceased did not leave


behind a last will and testament, these four heirs commenced on considered collectively, as sufficient bases for the conclusion that
November 4, 1963 an intestate proceeding for the settlement of Adriana Maloto's will had been effectively revoked.
their aunt's estate. The case was instituted in the then Court of
First Instance of Iloilo and was docketed as Special Proceeding There is no doubt as to the testamentary capacity of the testatrix
No. 1736. However, while the case was still in progress, or to be and the due execution of the will. The heart of the case lies on the
exact on February 1, 1964, the parties -- Aldina, Constancio, Panfilo, issue as to whether or not the will was revoked by Adriana.
and Felino -- executed an agreement of extrajudicial settlement of
Adriana's estate. The agreement provided for the division of the The provisions of the new Civil Code pertinent to the issue can be
estate into four equal parts among the parties. The Malotos then found in Article 830.
presented the extrajudicial settlement agreement to the trial court
for approval which the court did on March 21, 1964. That should Art. 830. No will shall be revoked except in the following cases:
have signalled the end of the controversy, but, unfortunately, it had (1) By implication of law; or
not.
(2) By some will, codicil, or other writing executed as provided in
Three years later, or sometime in March 1967, Atty. Sulpicio Palma, case of wills; or
a former associate of Adriana's counsel, the late Atty. Eliseo
Hervas, discovered a document entitled "KATAPUSAN NGA (3) By burning, tearing, cancelling, or obliterating the will with the
PAGBULUT-AN (Testamento)", dated January 3, 1940, and intention of revoking it, by the testator himself, or by some
purporting to be the last will and testament of Adriana. Atty. Palma other person in his presence, and by his express direction. If
claimed to have found the testament, the original copy, while he burned, torn, cancelled, or obliterated by some other person,
was going through some materials inside the cabinet drawer without the express direction of the testator, the will may still
formerly used by Atty. Hervas. The document was submitted to the be established, and the estate distributed in accordance
office of the clerk of the Court of First Instance of Iloilo on April 1, therewith, if its contents, and due execution, and the fact of its
1967. Incidentally, while Panfilo and Felino are still named as heirs unauthorized destruction, cancellation, or obliteration are
in the said will, Aldina and Constancio are bequeathed much established according to the Rules of Court.
bigger and more valuable shares in the estate of Adriana than (Emphasis Supplied.)
what they received by virtue of the agreement of extrajudicial
settlement they had earlier signed. The will likewise gives devises It is clear that the physical act of destruction of a will, like burning
and legacies to other parties, among them being the petitioners in this case, does not per se constitute an effective revocation,
Asilo de Molo, the Roman Catholic Church of Molo, and unless the destruction is coupled with animus revocandi on the
Purificacion Miraflor. part of the testator. It is not imperative that the physical destruction
be done by the testator himself. It may be performed by another
Thus, on May 24, 1967, Aldina and Constancio, joined by the other person but under the express direction and in the presence of the
devisees and legatees named in the will, filed in Special testator. Of course, it goes without saying that the document
Proceeding No. 1736 a motion for reconsideration and annulment destroyed must be the will itself.
of the proceedings therein and for the allowance of the will. When
the trial court denied their motion, the petitioner came to us by In this case, while animus revocandi, or the intention to revoke,
way of a petition for certiorari and mandamus assailing the orders may be conceded, for that is a state of mind, yet that requisite
[3]
of the trial court. As we stated earlier, we dismissed that petition alone would not suffice. Animus revocandi is only one of the
and advised that a separate proceeding for the probate of the necessary elements for the effective revocation of a last will and
alleged will would be the appropriate vehicle to thresh out the testament. The intention to revoke must be accompanied by the
matters raised by the petitioners. overt physical act of burning, tearing, obliterating, or cancelling the
will carried out by the testator or by another person in his
Significantly, the appellate court while finding as inconclusive the presence and under his express direction. There is paucity of
matter on whether or not the document or papers allegedly evidence to show compliance with these requirements. For one,
burned by the househelp of Adriana, Guadalope Maloto Vda. de the document or papers burned by Adriana's maid, Guadalope,
Coral, upon instructions of the testatrix, was indeed the will, was not satisfactorily established to be a will at all, much less the
contradicted itself and found that the will had been revoked. The will of Adriana Maloto. For another, the burning was not proven to
respondent court stated that the presence of animus revocandi in have been done under the express direction of Adriana. And then,
the destruction of the will had, nevertheless, been sufficiently the burning was not in her presence. Both witnesses, Guadalope
proven. The appellate court based its finding on the facts that the and Eladio, were one in stating that they were the only ones
document was not in the two safes in Adriana's residence, by the present at the place where the stove (presumably in the kitchen)
testatrix going to the residence of Atty. Hervas to retrieve a copy was located in which the papers proffered as a will were burned.
of the will left in the latter's possession, and, her seeking the
services of Atty. Palma in order to have a new will drawn up. For The respondent appellate court in assessing the evidence
reasons shortly to be explained, we do not view such facts, even presented by the private respondents as oppositors in the trial


court, concluded that the testimony of the two witnesses who separate action for the probate of the late Adriana Maloto's will.
testified in favor of the will's revocation appear "inconclusive." We Hence, on these grounds alone, the position of the private
share the same view. Nowhere in the records before us does it respondents on this score can not be sustained.
appear that the two witnesses, Guadalope Vda. de Corral and
Eladio Itchon, both illiterates, were unequivocably positive that the One last note. The private respondents point out that revocation
document burned was indeed Adriana's will. Guadalope, we think, could be inferred from the fact that "(a) major and substantial bulk
believed that the papers she destroyed was the will only because, of the properties mentioned in the will had been disposed of;
according to her, Adriana told her so. Eladio, on the other hand, while an insignificant portion of the properties remained at the
obtained his information that the burned document was the will time of death (of the testatrix); and, furthermore, more valuable
because Guadalupe told him so, thus, his testimony on this point is properties have been acquired after the execution of the will on
double hearsay. January 3, 1940."[7] Suffice it to state here that as these additional
matters raised by the private respondents are extraneous to this
At this juncture, we reiterate that "(it) is an important matter of special proceeding, they could only be appropriately taken up
public interest that a purported will is not denied legalization on after the will has been duly probated and a certificate of its
dubious grounds. Otherwise, the very institution of testamentary allowance issued.
[4]
succession will be shaken to its very foundations x x x."

WHEREFORE, judgment is hereby rendered REVERSING and
The private respondents in their bid for the dismissal of the SETTING ASIDE the Decision dated June 7, 1985 and the
present action for probate instituted by the petitioners argue that Resolution dated October 22, 1986, of the respondent Court of
the same is already barred by res adjudicata. They claim that this Appeals, and a new one ENTERED for the allowance of Adriana
bar was brought about by the petitioners' failure to appeal timely Maloto's last will and testament. Costs against the private
from the order dated November 16, 1968 of the trial court in the respondents.
intestate proceeding (Special Proceeding No. 1736) denying their
(petitioners') motion to reopen the case, and their prayer to annul This Decision is IMMEDIATELY EXECUTORY.
the previous proceedings therein and to allow the last will and
testament of the late Adriana Maloto. This is untenable. SO ORDERED.

The doctrine of res adjudicata finds no application in the present Yap, (Chairman), Melencio-Herrera, and Paras, JJ., concur.
controversy. For a judgment to be a bar to a subsequent case, the Padilla, J., no part.
following requisites must concur: (1) the presence of a final former
judgment; (2) the former judgment was rendered by a court having

jurisdiction over the subject matter and the parties; (3) the former Kalaw v. Relova, supra.
judgment is a judgment on the merits; and (4) there is, between 46 Lipana v. Lipana (1940) 70 Phil 365
the first and the second action, identity of parties, of subject 70 Phil. 365
matter, and of cause of action.[5] We do not find here the presence

of all the enumerated requisites.
[ G.R. No. 47174, June 28, 1940 ]
For one, there is yet, strictly speaking, no final judgment rendered
insofar as the probate of Adriana Maloto's will is concerned. The ELIODORO LIPANA, REPRESENTED BY HER GUARDIAN
decision of the trial court in Special Proceeding No. 1736, although AD LITEM, ISABELO LIPANA, PETITIONER, VS. THE
final, involved only the intestate settlement of the estate of COURT OF FIRST INSTANCE OF CAVITE, JOAQUIN
Adriana. As such, that judgment could not in any manner be LIPANA AND NATIVIDAD LIPANA, RESPONDENTS.

construed to be final with respect to the probate of the
D E C I S I O N
subsequently discovered will of the decedent. Neither is it a
judgment on the merits of the action for probate. This is
understandbly so because the trial court, in the intestate MORAN, J.:
proceeding, was without jurisdiction to rule on the probate of the
[6]
contested will. After all, an action for probate, as it implies, is A petition for certiorari.
founded on the presence of a will and with the objective of
proving its due execution and validity, something which can not be One Eliodora Lipana filed in the respondent court an application
properly done in an intestate settlement of estate proceeding for the probate of a will supposedly executed by the deceased,
which is predicated on the assumption that the decedent left no Manuela Lipana, a carbon copy of which was attached to the
will. Thus, there is likewise no identity between the cause of action application. Natividad Lipana filed an opposition, and in her
in intestate proceeding and that in an action for probate. Be that "oposicion supletoria" she claimed that evidence was unnecessary
as it may, it would be remembered that it was precisely because of upon the facts alleged in the application, the copy of the will
our ruling in G.R. No. L-30479 that the petitioners instituted this attached thereto showing, in itself, that the will had not been


executed in accordance with law. The respondent court, after petitioner's attorney. We reiterate here what we have observed on
inspecting the copy of the will, dismissed the application on the several occasions, that attorneys should not abuse the privilege
ground that such copy could not be admitted to probate, it not accorded them in their defense of cases in courts of justice, by
having been signed by the testatrix and the attesting witnesses at indulging in offensive personalities which can in no way aid in the
the end thereof and on the left margin of each page. It is against proper elucidation of the issues. We disapprove of the conduct of
this order of dismissal that the petition for certiorari has been filed attorney Fortunato Jose and he is hereby warned that a similar
with this court. misbehavior on his part in the future will be appropriately dealt
with.
There can be no doubt that the respondent court acted in excess
of its jurisdiction in rendering a judgment upon the merits of the The order of the respondent court of November 29, 1939, issued in
case without a previous hearing. The pronouncement made by the its civil case No. 3626, is hereby set aside, with costs against
respondent court that the will had not been executed in respondents.
accordance with law, is founded undoubtedly on the erroneous
assumption that the probate of the carbon copy of the will was Avanceña, Pres., Imperial, Diaz, Laurel, and Concepcion, JJ.,
being applied for. Such copy was attached to the application concur.
merely to corroborate the allegation as to the existence of its
original and not to establish a full compliance with the Order set aside.
requirements of the law as to the execution of the will. Such
requirements are alleged in the application tojiave been complied

with and may be proved at the hearing. It is apparent from the 47 Gago v. Mamuyac G.R. No. 26317 Jan 29, 1927
application that what is sought to be admitted to probate is the (49 Phil. 902)
49 Phil. 902
original of the will.

It is alleged therein that the original was in the possession of a
third person or that it was either lost or destroyed by some person [ G.R. No. 26317, January 29, 1927 ]
other than the testatrix. Under section 623 of Act No. 190, if a will
is shown to have been torn by some other person without the ESTATE OF MIGUEL MAMUYAC, DECEASED. FRANCISCO
express direction of the testator, it may be admitted to probate, if GAGO, PETITIONER AND APPELLANT, VS. CORNELIO
its contents, due execution and its unauthorized destruction are MAMUYAC, AMBROSIO LARIOSA, FELICIANA BAUZON,
AND CATALINA MAMUYAC, OPPONENTS AND
established by satisfactory evidence. The applicant, therefore, was
APPELLEES.
entitled to hearing to prove the due execution of the original will
and its loss or destruction, and the respondent court had no D E C I S I O N
statutory authority to dismiss the application without such hearing.

JOHNSON, J.:
It is alleged that, according to sections 217 and 514 of Act No. 190,

a writ of certiorari may be granted only where "there is no plain,
The purpose of this action was to obtain the probation of a last will
speedy and adequate remedy by bill of exceptions, or appeal, or
and testament of Miguel Mamuyac, who died on the 2d day of
otherwise." This rule, however, recognizes an exception. There the
January, 1922, in the municipality of Agoo of the Province of La
order or judgment is a nullity by virtue of its own recitals, as, in the
Union. It appears from the record that on or about the 27th day of
instant case, wherein the order complained of recites that there
July, 1918, the said Miguel Mamuyac executed a last will and
had been no hearing of the facts alleged in the application, it may
testament (Exhibit A). In the month of January, 1922, the said
be attacked in any way and at any time, even when no appeal has
Francisco Gago presented a petition in the Court of First Instance
been taken. (Banco Espanol-Filipino vs. Palanca, 37 Phil., 921, 949.)
of the Province of La Union for the probation of that will. The
This is exactly the same as a judgment in a criminal case wherein it
probation of the same was opposed by Cornelio Mamuyac,
is stated that there is no need of trial and the accused is convicted
Ambrosio Lariosa, Feliciana Bauzon, and Catalina Mamuyac (civil
merely upon the allegations of the information. Such judgment
cause No. 1144, Province of La Union). After hearing all of the
may be "held to be 'a dead limb on the judicial tree, which should
parties the petition for the probation of said will was denied by the
be lopped of or wholly disregarded as the circumstances require."
Honorable C. M. Villareal on the 2d day of November, 1923, upon
(Anuran vs. Aquino, 38 Phil., 29, 36.) Indeed, we have once held
the ground that the deceased had on the 16th day of April, 1919,
that a judgment with absolutely nothing to support it, is a nullity,
executed a new will and testament.
and may be voided at least by a proceeding in certiorari. (Yangco

vs. Court of First Instance of Manila, 29 Phil., 183, 191.)
On the 21st day of February, 1925, the present action was

commenced. Its purpose was to secure the probation of the said
A motion for contempt is filed by the petitioner against attorney
will of the 16th day of April, 1919 (Exhibit 1). To said petition Cornelio
Fortunato Jose due to certain statements made by the latter in his
Mamuyac, Ambrosio Lariosa, Feliciana Bauzon, and Catalina
written argument and which are derogatory to the good name of



Mamuyac presented their oppositions, alleging (a) that the said will the testator had ready access to the will and it cannot be found
is a copy of the second will and testament executed by the said after his death. It will not be presumed that such will has been
Miguel Mamuyac; (b) that the same had been cancelled and destroyed by any other person without the knowledge or authority
revoked during the lifetime of Miguel Mamuyac and (c) that the of the testator. The force of the presumption of cancellation or
said will was not the last will and testament of the deceased revocation by the testator, while varying greatly, being weak or
Miguel Mamuyac. strong according to the circumstances, is never conclusive, but
may be overcome by proof that the will was not destroyed by the
Upon the issue thus presented, the Honorable Anastasio R. testator with intent to revoke it.
Teodoro, judge, after hearing the respective parties, denied the
probation of said will of April 16,1919, upon the ground that the In view of the fact that the original will of 1919 could not be found
same had been cancelled and revoked in the year 1920. Judge after the death of the testator Miguel Mamuyac and in view of the
Teodoro, after examining the evidence adduced, found that the positive proof that the same had been cancelled, we are forced to
following facts had been satisfactorily proved: the conclusion that the conclusions of the lower court are in
accordance with the weight of the evidence. In a proceeding to
"That Exhibit A is a mere carbon copy of its original which probate a will the burden of proof is upon the proponent clearly to
remained in the possession of the deceased testator Miguel establish not only its execution but its existence. Having proved
Mamuyac, who revoked it before his death as per testimony of its execution by the proponents, the burden is on the contestant to
witnesses Jose Fenoy, who typed the will of the testator on April show that it has been revoked. In a great majority of instances in
16, 1919, and Carlos Bejar, who saw on December 30, 1920, the which wills are destroyed for the purpose of revoking them there
original of Exhibit A (will of 1919) actually cancelled by the testator is no witness to the act of cancellation or destruction and all
Miguel Mamuyac, who assured Carlos Bejar that inasmuch as he evidence of its cancellation perishes with the testator. Copies of
had sold him a house and the land where the house was built, he wills should be admitted by the courts with great caution. When it
had to cancel it (the will of 1919), executing thereby a new is proven, however, by proper testimony that a will was executed
testament. Narcisa Gago in a way corroborates the testimony of in duplicate and each copy was exectued with all the formalities
Jose Fenoy, admitting that the will executed by the deceased and requirements of the law, then the duplicate may be admitted
(Miguel Mamuyac) in 1919 was found in the possession of father in evidence when it is made to appear that the original has been
Miguel Mamuyac. The opponents have successfully established lost and was not cancelled or destroyed by the testator. (Borromeo
the fact that father Miguel Mamuyac had executed in 1920 another vs. Casquijo, G. R. No. 26063.)[1]

will. The same Narcisa Gago, the sister of the deceased, who was
living in the house with him, when cross-examined by attorney for After a careful examination of the entire record, we are fully
the opponents, testified that the original of Exhibit A could not be persuaded that the will presented for probate had been cancelled
found. For the foregoing consideration and for the reason that the by the testator in 1920. Therefore the judgment appealed from is
original of Exhibit A has been cancelled by the deceased father hereby affirmed. And without any finding as to costs, it is so
Miguel Mamuyac, the court disallows the probate of Exhibit A for ordered.
the applicant." From that order the petitioner appealed.
Street, Malcolm, Villamor, Ostrand, Romualdez, and Villa-Real, JJ.,
The appellant contends that the lower court committed an error in concur.
not finding from the evidence that the will in question had been
executed with all the formalities required by the law; that the same

had been revoked and cancelled in 1920 before his death; that the 48 Molo v. Molo (1951) 90 Phil 37
said will was a mere carbon copy and that the oppositors were not 90 Phil. 37
estopped from alleging that fact.

With reference to the said cancellation, it may be stated that there [ G. R. No. L-2538, September 21, 1951 ]
is positive proof, not denied, which was accepted by the lower
court, that the will in question had been cancelled in 1920. The TESTATE ESTATE OF THE DECEASED MARIANO MOLO Y
law does not require any evidence of the revocation or LEGASPI JUANA JUAN VDA. DE MOLO, PETITIONER AND
cancellation of a will to be preserved. It therefore becomes difficult APPELLEE, VS. LIRA, GLICEKIA AND COENELIO MOLO,
at times to prove the revocation or cancellation of wills. The fact OPPOSITORS AND APPELLANTS.

that, such cancellation or revocation has taken place must either D E C I S I O N
remain unproved or be inferred from evidence showing that after
due search the original will cannot be found. Where a will which
cannot be found is shown to have been in the possession of the BAUTISTA ANGELO, J.:
testator, when last seen, the presumption is, in the absence of
other competent evidence, that the same was cancelled or This is an appeal from an order of the Court of First Instance of
destroyed. The same presumption arises where it is shown that Rizal admitting to probate the last will and testament of the


deceased Mariano Molo y Legaspi executed on August 17, 1918. dated 1918.
The oppositors-appellantg brought the case on appeal to this
Court for the reason that the value of the properties involved "II. The court a quo erred in not holding that the petitioner is now
exceeds P50.000. estopped from steeking the probate of Molo's alleged will of 1918.

Mariano Molo y Legaspi died on January 24, 1941, in the "III. The lower court erred in not holding that petitioner herein lias
municipality of Pasay, province of Rizal, without leaving any forced come to court with 'unclean hands' and as such is not entitled to
heir either in the descending or ascending line. He was survived, relief.
however, by his wife, the herein petitioner Juana Juan Vda. de
Molo, and by his nieces and nephew, the oppositors-appellants, "IV. The probate court erred in not holding that Molo's alleged will
Luz, Gliceria and Cornelio, all surnamed Molo,who were the of August 17, 1918 was not executed in the manner required by law.
legitimate children of Candido Molo y Legaspi, deceased brother
of the testator. Mariano Molo y Legaspi left two wills, one executed "V. The probate court errctl in Tiot holding that the alleged will of
on August 17, 1918, (Exhibit A) and another executed on June 20, 1918 was deliberately revoked by Molo himself.
1939, (Exhibit I). The latter will contains a clause which expressly
revokes the will executed in 1918. "VI. Tho lower court erred in not holding that Molo's will of 1918
was subsequently revoked by the decedent's will of 1939."
On February 7, 1941, Juana Juan Vda. de Molo filed in the Court of In their first assignment of error, counsel for oppositors contend
First Instance of Rizal a petition, which was docketed as special that the probate court erred in not holding that the petitioner
proceeding No. 8022, seeking the probate of the will executed by voluntarily and deliberately frustrated the probate of the will dated
the deceased on June 20, 1939. June 20, 1939, in order to enable her to obtain the probate of the
will executed by the deceased on August 17, 1918, pointing out
There being no opposition, the will was probated. However, upon certain facts and circumstances which in their opinion indicate that
petition filed by the herein oppositors, the order of the court petitioner connived with witness Canuto Perez in an effort to
admitting the will to probate was set aside and the case was defeat and frustrate the probate of the 1939 wil) because of her
reopened. After hearing, at which both parties presented their knowledge that said will was intrinsically defective in that "the one
evidence, the court rendered decision denying the probate of said and only testamentary disposition thereof was a 'disposition
will on the ground that the petitioner failed to prove that the same captatoria'". These circumstances, counsel for the appellants
was executed in accordance with law, contend, constitute a series of steps deliberately taken by
petitioner with a view to insuring the realization of her plan of
In view of the disallowance of the will executed on June 20, 1939, securing the probate of the 1918 will which she believed would
the widow on February 24, 1944, filed another petition for the better safeguard her right to inherit from the deceased.
probate of the will executed .by the deceased on August 17, 1918,
which was docketed as special proceeding No. 56, in the same These imputations of fraud and bad faith allegedly committed in
court. Again, the same oppositors filed an opposition to the connection with special proceedings No. 8022, now closed and
petition, based on three grounds: (1) that petitioner is now terminated, are vigorously met by counsel for petitioner who
estopped from seeking the probate of the will of 1918; (2) that said contends that to raise them in these proceedings which are
will has not been executed in the manner required by law and (3) entirely new and distinct and completely independent from the
that the will has been subsequently revoked. But before the other is improper and unfair as they find no support whatsoever in
second petition could be heard, the battle for liberation came and any evidence submitted by the parties in 'this case. They are
the records of the case were destroyed. Consequently, a petition merely baaed on presumptions and conjectures not supported by
for reconstitution was filed, but the same was found to be any proof. For this reason, counsel contends, the lower court was
impossible because neither petitioner nor oppositors could justified in disregarding them and in passing them sub silentio in
produce the copies required for its reconstitution. As a result, its decision.
petitioner filed a new petition on September 14, 1946, similar to the
one destroyed, to which the oppositors filed an opposition based A careful examination of the evidence available in this case seems
on the same grounds as those contained in their former to justify this contention. There is indeed no evidence which may
opposition. Then, the case was set for trial, and on May 28, 1948, justify the insinuation that petitioner had deliberately intended to
the court issued an order admitting the will to probate as already frustrate the probate of the 1939 will of the deceased to enable
stated in the early part of this decision. From this order the her to seek the probate of another will other than a mere
oppositors appealed assigning six errors, to wit: conjecture drawn from the apparently unexpected testimony of
Canuto Perez that he went out of the room to answer an urgent
"I. The probate court erred in not holding that the present call of nature when Artemio Reyes was signing the will and1 the
petitioner voluntarily and deliberately frustratedthe probate of the failure of petitioner later to impeach the character of said witness
will dated June 20, 1939, in special proceeding No. 8022, in order in spite of the opportunity given her by the court to do so. Apart
to enable her to obtain the probate of another alleged will of Molo from this insufficiency of evidence, the record discloses that this



failure has been explained by petitioner when she informed the impute bad faith to petitioner simply because she exerted every
court that she was unable to impeach the character of her witness effort to protect her own interest and prevent the intestacy of the
Canuto Perez because of her inability to find witnesses who may deceased to happen.
impeach him, and this explanation stands uncontradicted. Whether
this explanation is satisfactory or not, it is not now for us to Having reached the foregoing conclusions, it is obvious that the
determine. It is an incident that comes within the province of the court did not commit the second and third errors imputed to it by
former case. The failure of petitioner to present the testimony of the counsel for appellants. Indeed, petitioner cannot be
Artemio Reyes at the rehearing has also been explained, and it considered guilty of estoppel which would prevent her from
appears that petitioner has failed because his whereabouts could seeking the probate of the 1918 will simply because her effort to
not be found. Whether this is true or not is not also for this Court to obtain the allowance of the 1939 will has failed considering that in
determine. It is likewise within the province and function of the both the 191S and 1939 wills she was instituted by her husband as
court in the former case. And the unfairness of this imputation his universal heir. Nor can she be charged with bad faith far having
becomes more glaring when we take stock of the developments done so because of her desire to prevent the intestacy of her
that had taken place in these proceedings which show in bold husband. She cannot be blamed for being zealous in protecting
relief the true nature of the conduct, behavior and character of the her interest.
petitioner so bitterly assailed and held in disrepute by the
oppositors. The next' contention of appellants refers to the revocatory clause
contained in the 1989 will of the deceased which was denied
It should be recalled that the first petition for the probate of the will probate. They contend that, notwithstanding the disallowance of
executed on June 20,1989, was filed on February 7, 1941, by the said will, the revocatory clause is valid and still has the effect of
petitioner. There being no opposition, the will was probated. nullifying the prior will of 1918.
Subsequently, however, upon petition of the herein oppositors, the
order of the court admitting said will to probate was set aside, over Counsel for petitioner meets this argument by invoking the
the vigorous opposition of the herein petitioner, and the case was doctrine laid down in the case of Samson us. Naval, (41 Phil'., 838).
reopened. The reopening was ordered because of the strong lie contends that the facts involved in that case are on all fours
opposition of the oppositors who contended that the will had not with the facts of this case. Hence, the doctrine in that case is here
been executed as required by law. After the evidence of both controlling.
parties had been presented, the oppositors filed an extensive
memorandum wherein they reiterated their view that the will There is merit in this contention. We have carefully read the facts
should be denied probate. And on the strength of this opposition, involved in the Samson case and we are indeed impressed by
the court disallowed the will. their striking similarity with the facts of this case. We do not need
to recite here what those. facts are; it is enough to point out that
If petitioner then knew that the 1939 will was inherently defective they contain manypoints and circumstances in common. No
and would make the testamentary disposition in her favor invalid reason, therefore, is seen why the doctrine laid down in that case
and ineffective, because it is a "disposicion captatoria", which (which we quote hereunder) should not apply and control the
knowledge she may easily acquire through consultation with a present case.
lawyer, there was no need for her to go through the ordeal of filing "A subsequent will, containing a clause revoking a previous will,
the petition for the probate of the will. She could accomplish her having been disallowed, for the reason that it;-was not executed in
desire by merely suppressing the will or tearing or destroying it, conformity with the provisions of section 618 of the Code of Civil
and then take steps leading to the probate of the will executed in Procedure as to the making Of wills, cannot produce the eifect of
1918. But her conscience was clear and bade her to take the only annulling the previous will, inasmuch as said revoeatory clause is
proper step possible under the circumstances, which is to institute void." (41 Phil., 838.)
the necessary proceedings for the probate of the 1939 will. This Apropos of this question, counsel for oppositors make the remark
she did and the will was admitted to probate. But then the that, while they do not disagree with the soundness of the ruling
unexpected happened. Over her vigorous opposition, the herein laid down in the Samson case, there is reason to abandon said
appellants filed a petition for reopening, and over her vigorous ruling because it is archaic or antiquated and runs counter to the
objection, the same was granted and the ease was reopened. Her modern trend prevailing in American jurisprudence. They maintain
motion for reconsideration was denied. Is it her fault that the case that said ruling is no longer controlling but merely represents the
was reopened? Is it her fault that the order admitting the will to point of view of the minority and should, therefore, be abandoned,
probate was set aside? That was a contingency which petitioner more so if we consider the fact that section 623 of our Code of
never expected. Had appellants not filed their opposition to the Civil Procedure, which governs the revocation of wills, is of
probate of the will and had they limited their objection to the American origin and as such should follow the prevailing trend of
intrinsic validity of said will, their plan to defeat the will and secure the majority view in the United States. A long line of authorities is
the intestacy of the deceased would have perhaps been cited in support of this contention. And these authorities hold the
accomplished. But they failed in their strategy. If said will was view, that "an express revocation is immediately effective upon the
denied probate it is due to their own effort. It is now unfair to execution of the subsequent will, and does not require that it first


undergo the formality of a probate proceeding", (p. 63, appellants' appear many authorities on the "application of rules where second

brief). will is invalid", among which a typical one is the following:
"It is universally agreed that where the second will is invalid on
While there are many cases which uphold the view entertained by account of not being executed in accordance ' with the provisions
counsel for oppositors, and that view appears to be controlling in of the statute, or where the testator has not sufficient mental
the states where the decisions had been promulgated, however, capacity to make a will or the will is procured through undue
we are reluctant to fall in line with the assertion that that is now the influence* or the such, in other words, where the second will is
prevailing view in the United States. In the search we have made really no will, dt does not revoke the first will or affect it in any
of American authorities on the subject, we found ourselves in a manner." Mort vs. Baker University (1985) 229 Mo. App, 632, 78 S.
pool of conflicting opinions perhaps because of the peculiar W. (2d), 498."
provisions contained in the statutes adopted by each State on the These treaties cannot be "mistaken. They uphold the view on
subject of revocation of wills. But the impression we gathered from which the ruling in the Samson case is predicated. They reflect the
a review and study of the pertinent authorities is that the doctrine opinion that this ruling is sound and good and for this reason we
laid down in the Samson case is still a good law. On page 328 of see no justification for abandoning it as now suggested by counsel
the American Jurisprudence, Vol. 57, which is a revision published for the oppositors.
in 1948, we found the following passages which in our opinion
truly reflect the present trend of American jurisprudence on this It is true that our law on the matter (sec. 623, Code of Civil
matter affecting the revocation of prior wills: Procedure) provides that a will may be revoked "by some will,
"SEC. 471. Observance of Formalities in Execution of Instrument.— codicil, or other writing executed as provided in case of wills"; but
Ordinarily, statutes which permit the revocation of a "will by it cannot be said that the 1939 will should be regarded, not as a
another "writing provide that to be effective as a revocation, the will within the meaning ot said word, but as "other writing
writing must be executed with the same formalities which are executed as provided in the case of wills", simply because it was
required to be1 observed in the execution of a will. Accordingly, denied probate. And even if it be regarded as any other writing
where, under the statutes, attestation is necessary, to the making within the meaning of said clause, there is authority for holding
of a valid will, an unattested nontestamentary writing is not that unless said writing is admitted to probate, it cannot have the
effective to revoke a prior will. It has been held that a writing fails effect of revocation. (See 57 Am. Jur. pp. 329-330).
as a revoking1 instrument where it is not executed with the
formalities requisite for the execution of a will, even though it is But counsel for oppositors contend that, regardless of said
inscribed on the will itself, although it may effect a revocation by revocatory clause, said will of 1918 cannot still be given effect
cancellation or obliteration of the words of -the will. A testator because of the presumption that it was deliberately revoked by
cannot reserve to himself the power to modify a will by a written" the testator himself. The oppositors contend that the testator, after
instrument subsequently prepared but not executed in the manner executing the 1.939 will, and with full knowledge of the revocatory
required for a will. clause contained in said will, himself deliberately destroyed the
original of the 1918 will, and that for this reason the will submitted
"SEC. 472. Subsequent Unexecuted, Invalid, or Ineffective Will or . by petitioner for probate in these proceedings is only a duplicate
Codicil.—A will which is invalid because of the incapacity of the of said original.
testator or of undue influence can have no effect whatever as a '
revoking will. Moreover, a will is not revoked by the unexecuted There is no evidence which may directly indicate that the testator
draft of a later one. Nor is a will revoked by a defectively executed deliberately destroyed the original of the 1918 , will because of his
will or codicil, even though the latter contains a clause expressly knowledge of the revocatory clause contained in the will he
revoking the former will, in a jurisdiction where it is provided by. a executed in 1939. The only evidence we have is that when the first
controlling statute that no writing other than a testamentary will was executed in 1918, Juan Salcedo, who prepared it, gave the
instrument is sufficient to revoke a will, for the simple reason that original and copies to the testator himself and apparently they
there is, no revoking will. Similarly where the statute provides that remained in his possession until he executed his second will in.
a will may be revoked by a subsequent will or other writing 1939. And when the 1939 will was denied probate on Nc nber 29,
executed with the same formalities as are required in the 1943, and petitioner was asked by her attorney to look for another
execution of wills, a defectively executed will does not revoke a will, she found the duplicate copy (Exhibit A) among the papers or
prior will, since it cannot bo said that there is a writing which files of the testator. She did not find the original.
complies with the statute. Moreover, a will or codicil which, on
account of the manner in which it is executed, is sufficient to pass If it can bo inferred that the testatordeliberately destroyed the 1918
only personally does not affect dispositions of real estate made by will because of his knowledge of the revocatory clause of the 1939
a former will, even though it may expressly purport to do so. The will, and it is true that he gave a duplicate copy thereof to his wife,
intent of the testator to revoke is immaterial, if he has not complied the herein petitioner, the mostlogical step for the testator to take is
with the statute." (57 Am, Jur., 328, 329.) to recall said duplicate copy in order that it may" likewise be
We find the same opinion in the American Law Reports, destroyed. But this was not done as shown by the fact that said
Annotated, edited in 1939. On page 1400, Volume 123, there duplicate copy remained in the possession of petitioner. It is



possible that because of the long lapse of twenty-one (21) years due effect. The theory on which this principle is predicated is that
since the first will was executed, the original of the will had been the testator did not intend to die intestate. And this intention is
misplaced or lost, and forgetting that there was a copy, the testator clearly manifest when he executed two wills on two different
deemed it wise to execute another will containing exactly the occasions and instituted his wife as his universal heir. There can
same testamentary dispositions. Whatever may be the conclusion therefore be no mistake as to his intention of dying testate.
we may draw from this chain of circumstances, the stubborn fact is
that there is no direct evidence of voluntary or deliberate The remaining question to be determined refers to the sufficiency
destruction of the first will by the testator. This matter cannot be of the evidence to prove the due execution of the will.
left to mere inference or conjecture.
The will in question was attested, as. required by law, by three
Granting for the sake of argument that the earlier will was witnesses, Lorenzo Morales, Euflno Enriquez, and Angel Cuenca.
voluntarily destroyed by the testator after the execution of the The first two witnesses died before the commencement of the
second will, which revoked the first, could there be any doubt, present proceedings. So the only instrumental witness available
under this theory, that said earlier will was destroyed by the was Angel Cuenca and under our law and precedents, his
testator in the honest belief that it was no longer necessary testimony is sufficient to prove the due execution of the will.
because he had expressly revoked it in his will of 1939? In other However, petitioner presented not only the testimony of Cuenca
words, can we not say that the destruction of the earlier will was but placed on the witness stand Juan Salcedo, the notary public
but the necessary consequence of the testator's belief that the who prepared and notarized the will upon the express desire and
revocatory clause contained in the subsequent will was valid and instruction of the testator. The testimony of these witnesses shows
the latter would be given effect? If such is the case, then it is our that the will had been executed in the manner required by law. We
opinion that the earlier will can still be admitted to probate under have read their testimony and we were impressed by their
the principle of "dependent relative revocation". readiness and sincerity. We are convinced that they told the truth.
"This doctrine is known as that of dependent relative revocation,
and is usually applied where the testator cancels or destroys a will Wherefore, the order appealed from is hereby affirmed, with costs
or executes an instrument intended to revoke a will with a present against the appellants.
intention to make a new testamentary disposition as a substitute
for the old, and the new disposition is not made or, if made, fails of Paras, C. J., Feria, Pablo, Bengzon, Tuason, and Jugo, JJ., concur.
effect for some reason. The doctrine is not limited to the existence
of some other document, however, and has been applied where a Reyes, J., concurs in the result.
will was destroyed as a consequence of a mistake of law * * *." (68
C. J. p. 799).
VIII. REPUBLICATION AND REVIVAL OF WILLS - Art.
"The rule is established that where the act of destruction is 835, 836, 837
connected with the making of another will so as fairly to raise the IX. ALLOWANCE OF WILLS - Art. 838
inference that the testator meant the revocation of the old to
49 Heirs of Lasam v. Umengan 510 SCRA 496
depend upon the efficacy of the new disposition intended to be
substituted, the revocation will be conditional and dependent 539 Phil. 547
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.) FIRST DIVISION
[ G.R. NO. 168156, December 06, 2006 ]

"This is the doctrine oE dependent relative revocation. The failure
of the new testamentary disposition, upon Whose validity the HEIRS OF ROSENDO LASAM, REPRESENTED BY ROGELIO
revocation depends, is equivalent to the non-fulfillment of a LASAM AND ATTY. EDWARD P. LLONILLO, PETITIONERS,
suspensive condition, and hence prevents the revocation of the VS. VICENTA UMENGAN, RESPONDENT.
original will. But a mere intent to make at some time a will in place
D E C I S I O N
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. 233.) CALLEJO, SR., J.:
We hold, therefore, that even in the supposition that the
destruction of the original will by the testator could be presumed Before the Court is the petition for review on certiorari filed by the
from the failure of the petitioner to produce it in court, such Heirs of Rosendo Lasam, represented by Rogelio M. Lasam and
destruction cannot have the effect of defeating the prior will of Atty. Edward P. Llonillo, seeking the reversal of the Decision[1]
1918 because of the fact that it is founded on the mistaken belief dated February 16, 2005 of the Court of Appeals (CA) in CA-G.R.
that the will of 1939 has been validly executed and would be given


SP No. 80032. The assailed decision reversed and set aside the Rosendo Lasam allegedly temporarily allowed Vicenta Umengan
decision of the Regional Trial Court (RTC) of Tuguegarao City, to occupy the subject lot sometime in 1955. The latter and her
Cagayan and dismissed, for lack of merit, the complaint for husband allegedly promised that they would vacate the subject lot
unlawful detainer file by the said heirs against respondent Vicenta upon demand. However, despite written notice and demand by
Umengan. the heirs of Rosendo Lasam, Vicenta Umengan allegedly
unlawfully refused to vacate the subject lot and continued to
The RTC decision affirmed that of the Municipal Trial Court in Cities possess the same. Accordingly, the heirs of Rosendo Lasam were
(MTCC) of the same city, Branch III, which had rendered judgment constrained to institute the action for ejectment.
in favor of the heirs of Rosendo Lasam and directed the ejectment
of respondent Vicenta Umengan from the lot subject of litigation. In her Answer with Counterclaim, Vicenta Umengan specifically
denied the material allegations in the complaint. She countered
The present petition likewise seeks the reversal of the CA that when Isabel Cuntapay passed away, the subject lot was
Resolution dated May 17, 2005 denying the motion for inherited by her six children by her first and second marriages
reconsideration filed by the heirs of Rosendo Lasam. through intestate succession. Each of the six children allegedly
had a pro indiviso share of 1/6 of the subject lot.
As culled from the records, the backdrop of the present case is as
follows – It was further alleged by Vicenta Umengan that her father, Abdon
Turingan, purchased the respective 1/6 shares in the subject lot of
The lot subject of the unlawful detainer case is situated in his siblings Maria and Sado. These conveyances were allegedly
Tuguegarao City, Cagayan. It is the eastern half portion of Lot No. evidenced by the Deed of Sale dated March 3, 1975, appearing as
5427 and Lot No. 990. The first lot, Lot No. 5427 containing an Doc. No. 88, Page No. 36, Book No. XIV, series of 1975 of the
area of 1,037 square meters, is covered by Original Certificate of notarial book of Atty. Pedro Lagui.
Title (OCT) No. 196. The second lot, Lot No. 990 containing an
area of 118 sq m, is covered by OCT No. 1032. These lots are Prior thereto, Rufo already sold his 1/6 share in the subject lot to
registered in the names of the original owners, spouses Pedro Vicenta Umengan and her husband as evidenced by the Deed of
Cuntapay and Leona Bunagan. Sale dated June 14, 1961, appearing as Doc. No. 539, Page No. 41,
Book No. V, series of 1961 of the notarial book of Atty. Pedro Lagui.
In an instrument denominated as Deed of Confirmation and Also on June 14, 1961, Abdon donated his 1/6 share in the subject
acknowledged before a notary public on June 14, 1979, the heirs of lot to her daughter Vicenta Umengan as evidenced by the Deed of
the said spouses conveyed the ownership of Lots Nos. 990 and Donation appearing as Doc. No. 538, Page No. 41, Book No. V,
5427 in favor of their two children, Irene Cuntapay and Isabel series of 1961 of the notarial book of the same notary public.
Cuntapay. In another instrument entitled Partition Agreement and
acknowledged before a notary public on December 28, 1979, it According to Vicenta Umengan, the children of Isabel Cuntapay by
was agreed that the eastern half portion (subject lot) of Lots Nos. her second husband (Rosendo and Trinidad Lasam) own only 2/6
990 and 5427 shall belong to the heirs of Isabel Cuntapay. On the portion of the subject lot. She thus prayed that the complaint for
other hand, the remaining portion thereof (the west portion) shall ejectment be dismissed and that the heirs of Rosendo Lasam be
belong to the heirs of Irene Cuntapay. The subject lot (eastern half ordered to pay her damages.
portion) has an area of 554 sq m.
The MTCC rendered judgment in favor of the heirs of Rosendo
Isabel Cuntapay had four children by her first husband, Domingo Lasam and directed the ejectment of Vicenta Umengan. In so
Turingan, namely: Abdon, Sado (deceased), Rufo and Maria. When ruling, the MTCC gave credence to the newly discovered last will
Domingo Turingan passed away, Isabel Cuntapay remarried and testament (entitled Testamento Abierto) purportedly executed
Mariano Lasam. She had two other children by him, namely: by Isabel Cuntapay where she bequeathed the subject lot to her
Trinidad and Rosendo. son, Rosendo Lasam, thus:
x x x my share 1/5th (one-fifth) of the Cuntapay heirs, bordered on
Sometime in January 2001, the heirs of Rosendo Lasam (son of the North by Sr. Elia Canapi; to the South, by Calle Aguinaldo; to
Isabel Cuntapay by her second husband) filed with the MTCC a the East, by Calle P. Burgos and the West, by the late Don Luis
complaint for unlawful detainer against Vicenta Umengan, who Alonso; on the property which is my share stands a house of light
was then occupying the subject lot. Vicenta Umengan is the materials where I presently reside; this 1/5th (one-fifth) share of my
daughter of Abdon Turingan (son of Isabel Cuntapay by her first inheritance from the Cuntapays I leave to my son Rosendo Lasam
husband). and also the aforementioned house of light material x x x[2]The
MTCC reasoned that the heirs of Rosendo Lasam anchored their
In their complaint, the heirs of Rosendo Lasam alleged that they claim over the subject lot on the last will and testament of Isabel
are the owners of the subject lot, having inherited it from their Cuntapay while Vicenta Umengan hinged hers on intestate
father. Rosendo Lasam was allegedly the sole heir of the deceased succession and legal conveyances. Citing jurisprudence[3] and
Pedro Cuntapay through Isabel Cuntapay. During his lifetime, Article 1080[4] of the Civil Code, the MTCC opined that testacy was



favored and that intestacy should be avoided and the wishes of
the testator should prevail. It observed that the last will and However, the CA declared that the RTC, as well as the MTCC,
testament of Isabel Cuntapay was not yet probated as required by erred in ruling that, by virtue of the purported last will and
law; nonetheless, the institution of a probate proceeding was not testament of Isabel Cuntapay, the heirs of Rosendo Lasam have a
barred by prescription. better right to the subject lot over Vicenta Umengan. The CA
explained that the said last will and testament did not comply with
With the finding that the subject lot was already bequeathed by the formal requirements of the law on wills.[6]

Isabel Cuntapay to Rosendo Lasam, the MTCC held that the
siblings Abdon, Sado, Rufo and Maria Turingan no longer had any Specifically, the CA found that the pages of the purported last will
share therein. Consequently, they could not convey to Vicenta and testament were not numbered in accordance with the law.
Umengan what they did not own. On the issue then of who was Neither did it contain the requisite attestation clause. Isabel
entitled to possession of the subject lot, the MTCC ruled in favor of Cuntapay as testator and the witnesses to the will did not affix
the heirs of Rosendo Lasam as it found that Vicenta Umengan's their respective signatures on the second page thereof. The said
possession thereof was by mere tolerance. The dispositive portion instrument was likewise not acknowledged before a notary public
of the MTCC decision reads: by the testator and the witnesses. The CA even raised doubts as
WHEREFORE, in the light of the foregoing considerations, this to its authenticity, noting that while Isabel Cuntapay died in 1947
Court Resolve[d] to order the EJECTMENT of VICENTA T. and the heirs of Rosendo Lasam claimed that they discovered the
UMENGAN and in her place INSTITUTE THE HEIRS OF ROSENDO same only in 1997, a date – May 19, 1956 – appears on the last
LASAM. page of the purported will. The CA opined that if this was the date
of execution, then the will was obviously spurious. On the other
It is further ordered the defendant shall pay the Heirs of Rosendo hand, if this was the date of its discovery, then the CA expressed
Lasam the sum of P500.00 pesos representing the monthly rental bafflement as to why the heirs of Rosendo Lasam, through their
of the land from August 2000 to the time this case shall have been mother, declared in the Partition Agreement dated December 28,
terminated. 1979 that Isabel Cuntapay died intestate.

Ordering the defendant to pay the plaintiffs the amount of It was observed by the CA that as against these infirmities in the
P20,000.00 attorney's fees plus cost of this litigation. claim of the heirs of Rosendo Lasam, Vicenta Umengan presented
a Deed of Sale and a Deed of Donation to justify her possession of
[5]
So Ordered. On appeal, the RTC affirmed in toto the decision of the subject lot. The CA noted that she has also possessed the
the MTCC. The RTC echoed the reasoning of the MTCC that the subject property since 1955. Such prior possession, the CA held,
testamentary disposition of the property of Isabel Cuntapay should gave Vicente Umengan the right to remain in the subject lot until a
be respected, and that the heirs of Rosendo Lasam have a better person with a better right lawfully ejects her. The heirs of Rosendo
right to possess the subject lot. Lasam do not have such a better right. The CA stressed that the
ruling on the issue of physical possession does not affect the title
Undaunted, Vicenta Umengan filed an appeal with the CA. She to the subject lot nor constitute a binding and conclusive
argued that the MTCC had no jurisdiction over the case as it adjudication on the merits on the issue of ownership. The parties
involved the recovery of ownership of the subject lot, not merely are not precluded from filing the appropriate action to directly
recovery of possession or unlawful detainer. She also assailed the contest the ownership of or the title to the subject lot.
RTC's and the MTCC's holding that the purported Testamento
Abierto of Isabel Cuntapay prevails over Vicenta Umengan's The decretal portion of the assailed decision of the CA reads:
muniments of title and, consequently, the heirs of Rosendo Lasam WHEREFORE, premises considered, the appeal is GRANTED. The
have a better right to the subject lot than Vicenta Umengan. August 29, 2003 decision of the RTC, Branch 1, Tuguegarao City,
Cagayan in Civil Case No. 5924 is hereby REVERSED and SET
In the assailed Decision dated February 16, 2005, the CA reversed ASIDE. Private respondents' complaint for unlawful detainer
and set aside the decision of the RTC. The appellate court against petitioner is dismissed for lack of merit.
preliminarily upheld the jurisdiction of the MTCC over the subject
matter as it found that the allegations in the complaint made out a SO ORDERED.[7]The heirs of Rosendo Lasam sought the
case for unlawful detainer. The heirs of Rosendo Lasam in their reconsideration thereof but their motion was denied by the CA in
complaint, according to the CA, only sought for Vicenta Umengan its Resolution dated May 17, 2005.
to vacate and surrender possession of the subject lot. The CA also
rejected the contention of the heirs of Rosendo Lasam that the The heirs of Rosendo Lasam (petitioners) now come to the Court
issue of ownership of the subject lot had already been settled in alleging that the CA committed reversible error in setting aside the
another case, Civil Case No. 4917, before RTC (Branch 3) of decision of the RTC, which had affirmed that of the MTCC, and
Tuguegarao City. The CA stated that the trial court's order dismissing their complaint for unlawful detainer against
dismissing the said case was not a "judgment on the merits" as to respondent Vicenta Umengan.
constitute res judicata.



Petitioners argue that the CA erred when it held, on one hand, that indispensable interdictions against needless delays and for orderly

the MTCC had jurisdiction over the subject matter of the complaint discharge of judicial business, the law does admit of exceptions
as the allegations therein make out a case for unlawful detainer when warranted by circumstances.[8] In the present case, the CA
but, on the other hand, proceeded to discuss the validity of the last cannot be faulted in choosing to overlook the technical defects of
will and testament of Isabel Cuntapay. respondent's appeal. After all, technicality should not be allowed
to stand in the way of equitably and completely resolving the
Petitioners insist that respondent is holding the subject lot by mere rights and obligations of the parties.[9]

tolerance and that they, as the heirs of Rosendo Lasam who was
the rightful owner of the subject lot, have a better right thereto. It The Court shall now resolve the substantive issues raised by
was allegedly error for the CA to declare the last will and petitioners.
testament of Isabel Cuntapay as null and void for its
non-compliance with the formal requisites of the law on wills. The It is well settled that in ejectment suits, the only issue for resolution
said matter cannot be resolved in an unlawful detainer case, which is the physical or material possession of the property involved,
only involves the issue of material or physical possession of the independent of any claim of ownership by any of the party
disputed property. In any case, they maintain that the said will litigants. However, the issue of ownership may be provisionally
complied with the formal requirements of the law. ruled upon for the sole purpose of determining who is entitled to
possession de facto.[10]

It was allegedly also erroneous for the CA to consider in
respondent's favor the deed of sale and deed of donation In the present case, petitioners base their claim of right to
covering portions of the subject lot, when these documents had possession on the theory that their father, Rosendo Lasam, was
already been passed upon by the RTC (Branch 3) of Tuguegarao the sole owner of the subject lot by virtue of the newly discovered
City in Civil Case No. 4917 when it dismissed the respondent's last will and testament of Isabel Cuntapay bequeathing the same
complaint for partition of the subject lot. The said order allegedly to him. Respondent is allegedly holding the subject lot by mere
constituted res judicata and may no longer be reviewed by the tolerance of Rosendo Lasam and, upon the petitioners' formal
CA. demand on her to vacate the same, respondent's right to possess
it has expired.
Petitioners emphasize that in an unlawful detainer case, the only
issue to be resolved is who among the parties is entitled to the On the other hand, respondent hinges her claim of possession on
physical or material possession of the property in dispute. On this the legal conveyances made to her by the children of Isabel
point, the MTCC held (and the same was affirmed by the RTC) that Cuntapay by her first husband, namely, Maria, Rufo, Sado and
petitioners have a better right since the "merely tolerated" Abdon. These conveyances were made through the sale and
possession of the respondent had already expired upon the donation by the said siblings of their respective portions in the
petitioners' formal demand on her to vacate. In support of this subject lot to respondent as evidenced by the pertinent deeds.
claim, they point to the affidavit of Heliodoro Turingan, full brother
of the respondent, attesting that the latter's possession of the The CA correctly held that, as between the respective claims of
subject lot was by mere tolerance of Rosendo Lasam who petitioners and respondent, the latter has a better right to possess
inherited the same from Isabel Cuntapay. the subject lot.

According to petitioners, respondent's predecessors-in-interest As earlier stated, petitioners rely on the last will and testament of
from whom she derived her claim over the subject lot by donation Isabel Cuntapay that they had allegedly newly discovered. On the
and sale could not have conveyed portions thereof to her, as she basis of this instrument, the MTCC and RTC ruled that petitioners
had claimed, because until the present, it is still covered by OCT have a better right to the possession of the subject lot because,
Nos. 196 and 1032 under the names of Pedro and Leona Cuntapay. following the law on succession, it should be respected and
Their respective estates have not been settled up to now. should prevail over intestate succession.

It is also the contention of petitioners that the CA should have However, contrary to the ruling of the MTCC and RTC, the
dismissed outright respondent's petition filed therewith for failure purported last will and testament of Isabel Cuntapay could not
to comply with the technical requirements of the Rules of Court. properly be relied upon to establish petitioners' right to possess
Specifically, the petition was not allegedly properly verified, lacked the subject lot because, without having been probated, the said
statement of material dates and written explanation on why last will and testament could not be the source of any right.
personal service was not made.
Article 838 of the Civil Code is instructive:
This last contention of petitioners deserves scant consideration. Art. 838. No will shall pass either real or personal property unless
The technical requirements for filing an appeal are not sacrosanct. it is proved and allowed in accordance with the Rules of Court.
It has been held that while the requirements for perfecting an
appeal must be strictly followed as they are considered The testator himself may, during his lifetime, petition the court


having jurisdiction for the allowance of his will. In such case, the Isabel Cuntapay has not yet been allowed in probate, hence, there
pertinent provisions of the Rules of Court for the allowance of wills is an imperative need to petition the court for the allowance of
after the testator's death shall govern. said will to determine once and for all the proper legitimes of
legatees and devisees before any partition of the property may be
The Supreme Court shall formulate such additional Rules of Court judicially adjudicated.
as may be necessary for the allowance of wills on petition of the
testator. It is an elementary rule in law that testate proceedings take
precedence over any other action especially where the will
Subject to the right of appeal, the allowance of the will, either evinces the intent of the testator to dispose of his whole estate.
during the lifetime of the testator or after his death, shall be
[11]
conclusive as to its due execution.In Cañiza v. Court of Appeals, With the discovery of the will of the late Isabel Cuntapay in favor of
the Court ruled that: "[a] will is essentially ambulatory; at any time the defendants, the Court can order the filing of a petition for the
prior to the testator's death, it may be changed or revoked; and probate of the same by the interested party.
until admitted to probate, it has no effect whatever and no right
can be claimed thereunder, the law being quite explicit: 'No will WHEREFORE, in light of the foregoing considerations, let the
shall pass either real or personal property unless it is proved and above-entitled case be as it is hereby DISMISSED.
[12]
allowed in accordance with the Rules of Court.'"

SO ORDERED.[15]For there to be res judicata, the following
Dr. Tolentino, an eminent authority on civil law, also explained that elements must be present: (1) finality of the former judgment; (2)
"[b]efore any will can have force or validity it must be probated. the court which rendered it had jurisdiction over the subject matter
To probate a will means to prove before some officer or tribunal, and the parties; (3) it must be a judgment on the merits; and (4)
vested by law with authority for that purpose, that the instrument there must be, between the first and second actions, identity of
offered to be proved is the last will and testament of the deceased parties, subject matter and causes of action.[16] The third requisite,
person whose testamentary act it is alleged to be, and that it has i.e., that the former judgment must be a judgment on the merits, is
been executed, attested and published as required by law, and not present between the action for partition and the complaint a
that the testator was of sound and disposing mind. It is a quo for unlawful detainer. As aptly observed by the CA:
[13]
proceeding to establish the validity of the will." Moreover, the Our reading of the Orders (dated June 16, 1997 and October 13,
presentation of the will for probate is mandatory and is a matter of 1997) in Civil Case No. 4917 reveals that the RTC, Branch 3,
[14]
public policy. Tuguegarao, Cagayan, dismissed the complaint for partition

because of the discovery of the alleged last will and testament of
Following the above truisms, the MTCC and RTC, therefore, Isabel Cuntapay. The court did not declare respondents [referring
erroneously ruled that petitioners have a better right to possess to the petitioners herein] the owners of the disputed property. It
the subject lot on the basis of the purported last will and testament simply ordered them to petition the court for the allowance of the
of Isabel Cuntapay, which, to date, has not been probated. Stated will to determine the proper legitimes of the heirs prior to any
in another manner, Isabel Cuntapay's last will and testament, which partition. Instead of filing the appropriate petition for the probate
has not been probated, has no effect whatever and petitioners of Isabel Cuntapay's will, the respondents filed the present
cannot claim any right thereunder. complaint for unlawful detainer. Viewed from this perspective, we
have no doubt that the court's Orders cited by the respondents
Hence, the CA correctly held that, as against petitioners' claim, are not "judgments on the merits" that would result in the
respondent has shown a better right of possession over the application of the principle of res judicata. Where the trial court
subject lot as evidenced by the deeds of conveyances executed in merely refrained from proceeding with the case and granted the
her favor by the children of Isabel Cuntapay by her first marriage. motion to dismiss with some clarification without conducting a trial
on the merits, there is no res judicata.[17]Further, it is not quite
Contrary to the claim of petitioners, the dismissal of respondent's correct for petitioners to contend that the children of Isabel
action for partition in Civil Case No. 4917 before the RTC (Branch 3) Cuntapay by her first marriage could not have conveyed portions
of Tuguegarao City does not constitute res judicata on the matter of the subject lot to respondent, as she had claimed, because until
of the validity of the said conveyances or even as to the issue of the present, it is still covered by OCT Nos. 196 and 1032 under the
the ownership of the subject lot. The order dismissing names of Pedro and Leona Cuntapay. To recall, it was already
respondent's action for partition in Civil Case No. 4917 stated thus: agreed by the heirs of the said spouses in a Partition Agreement
For resolution is a motion to dismiss based on defendants' dated December 28, 1979 that the subject lot would belong to
[referring to the petitioners herein] affirmative defenses consisting Isabel Cuntapay. The latter died leaving her six children by both
inter alia in the discovery of a last will and testament of Isabel marriages as heirs. Considering that her purported last will and
Cuntapay, the original owner of the land in dispute. testament has, as yet, no force and effect for not having been
x x x probated, her six children are deemed to be co-owners of the
subject lot having their respective pro indiviso shares. The
It appears, however, that the last will and testament of the late conveyances made by the children of Isabel Cuntapay by her first



marriage of their respective pro indiviso shares in the subject lot to value of the other evidence relied upon by petitioners to support
respondent are valid because the law recognizes the substantive their claim, which was the affidavit of Heliodoro Turingan, was not
right of heirs to dispose of their ideal share in the co-heirship passed upon by the MTCC and the RTC. Their respective
and/co-ownership among the heirs. The Court had expounded the decisions did not even mention the same.
principle in this wise:
This Court had the occasion to rule that there is no doubt that an In conclusion, it is well to stress the CA's admonition that –x x x our
heir can sell whatever right, interest, or participation he may have ruling on the issue of physical possession does not affect title to
in the property under administration. This is a matter which comes the property nor constitute a binding and conclusive adjudication
under the jurisdiction of the probate court. on the merits on the issue of ownership. The parties are not
precluded from filing the appropriate action directly contesting the
The right of an heir to dispose of the decedent's property, even if ownership of or the title to the property.[19]Likewise, it is therefore
the same is under administration, is based on the Civil Code in this context that the CA's finding on the validity of Isabel
provision stating that the possession of hereditary property is Cuntapay's last will and testament must be considered. Such is
deemed transmitted to the heir without interruption and from the merely a provisional ruling thereon for the sole purpose of
moment of the death of the decedent, in case the inheritance is determining who is entitled to possession de facto.
accepted. Where there are however, two or more heirs, the whole
estate of the decedent is, before its partition, owned in common WHEREFORE, premises considered, the petition is DENIED. The
by such heirs. assailed Decision dated February 16, 2005 and the Resolution
dated May 17, 2005 of the Court of Appeals in CA-G.R. SP No.
The Civil Code, under the provisions of co-ownership, further 80032 are AFFIRMED.
qualifies this right. Although it is mandated that each co-owner
shall have the full ownership of his part and of the fruits and SO ORDERED.
benefits pertaining thereto, and thus may alienate, assign or
mortgage it, and even substitute another person in its enjoyment, Panganiban, C.J., (Chairperson), Ynares-Santiago,
the effect of the alienation or the mortgage, with respect to the Austria-Martinez, and Chico-Nazario, JJ., concur.
co-owners, shall be limited to the portion which may be allotted to
him in the division upon the termination of the co-ownership. In
other words, the law does not prohibit a co-owner from selling, 50 Seangio v. Reyes 508 SCRA 177 (2006), supra
alienating or mortgaging his ideal share in the property held in 5
common. 51 Gallanosa v. Arcangel (1978) 83 SCRA 676
173 Phil. 92
As early as 1942, this Court has recognized said right of an heir to
dispose of property under administration. In the case of Teves de SECOND DIVISION
Jakosalem vs. Rafols, et al., it was said that the sale made by an
[ G.R. No. L-29300, June 21, 1978 ]
heir of his share in an inheritance, subject to the result of the
pending administration, in no wise, stands in the way of such
PEDRO D. H. GALLANOSA, CORAZON
administration. The Court then relied on the provision of the old
GRECIA-GALLANOSA AND ADOLFO FORTAJADA, THE
Civil Code, Article 440 and Article 399 which are still in force as DECEASED PEDRO GALLANOSA BEING SUBSTITUTED
Article 533 and Article 493, respectively, in the new Civil Code. BY HIS LEGAL HEIRS, NAMELY, HIS ABOVE-NAMED
The Court also cited the words of a noted civilist, Manresa: "Upon WIDOW AND HIS CHILDREN, ISIDRO GALLANOSA AND
the death of a person, each of his heirs 'becomes the undivided LEDY GALLANOSA, AND GRANDCHILDREN NAMED
IMELDA TECLA GALLANOSA AND ROSARIO BRIGIDA
owner of the whole estate left with respect to the part or portion
GALLANOSA, CHILDREN OF THE LATE SIKATUNA
which might be adjudicated to him, a community of ownership
GALLANOSA, SON OF PEDRO D. H. GALLANOSA,
being thus formed among the co-owners of the estate which PETITIONERS, VS. HON. UBALDO Y. ARCANGEL, JUDGE
remains undivided.'"[18]Contrary to the assertion of petitioners, OF BRANCH I OF THE COURT OF FIRST INSTANCE OF
therefore, the conveyances made by the children of Isabel SORSOGON AND FLORENTINO G. HITOSIS, CASIANO G.
Cuntapay by her first marriage to respondent are valid insofar as HITOSIS, TEOTIMO G. HITOSIS, VICTORIO G. HITOSIS,
EMILIA G. HITOSIS VDA. DE CRUZ, JOAQUIN R. HITOSIS,
their pro indiviso shares are concerned. Moreover, the CA
FLORENTINO R. HITOSIS, VIRGINIA R. HITOSIS,
justifiably held that these conveyances, as evidenced by the deed DEBORAH R. HITOSIS, EDILBERTO R. HITOSIS, LEONOR
of donation and deed of sale presented by respondent, coupled R. HITOSIS, NORMA R. HITOSIS-VILLANUEVA, LEONCIO
with the fact that she has been in possession of the subject lot R. HITOSIS, MINORS ANGEL R. HITOSIS AND RODOLFO
since 1955, establish that respondent has a better right to possess R. HITOSIS, REPRESENTED BY THEIR LEGAL GUARDIAN
the same as against petitioners whose claim is largely based on AND MOTHER LOURDES RELUCIO VDA. DE HITOSIS,
PETRONA HITOSIS-BALBIDO, MODESTO
Isabel Cuntapay's last will and testament which, to date, has not
HITOSIS-GACILO, CLETO HITOSIS, AGUSTIN
been probated; hence, has no force and effect and under which HITOSIS-FORTES, TOMASA HITOSIS-BAÑARES VDA. DE
no right can be claimed by petitioners. Significantly, the probative BORRAS, CONRADA HITOSIS-BAÑARES FRANCHE,



RESTITUTO HITOSIS-BAÑARES, DAMIAN covering sixty-one parcels of land located in various parts of
HITOSIS-BAÑARES, FIDEL HITOSIS-BANARES, SUSANA Sorsogon, large cattle and several pieces of personal property
HITOSIS-BAÑARES RODRIGUEZ, JOSE HITOSIS, LOLITA which were distributed in accordance with Florentino's will. The
HITOSIS-BAÑEGA, MINORS MILAGROS
heirs assumed the obligations of the estate amounting to P7,129.27
HITOSIS-BAÑEGA, ALICIA HITOSIS-BAÑEGA AND ELISA
HITOSIS-BAÑEGA, REPRESENTED BY THEIR LEGAL in the proportion of P2, 376.42 for Adolfo Fortajada and P4,
GUARDIAN AND FATHER ERNESTO BAÑEGA, FELICITAS 752.85 for the Gallanosa spouses. The project of partition was
HITOSIS-PEÑAFLOR, GENOVEVA HITOSIS-ADRIATICO, approved by Judge Doroteo Amador in his order of March 13,
MANUEL HITOSIS, PEDRO HITOSIS, LIBERATA 1943, thus confirming the heirs' possession of their respective
HITOSIS-BALMES, JUANITA HITOSIS-GABITO VDA. DE shares. The testator's legal heirs did not appeal from the decree of
GABAS, MAURA HITOSIS-GABITO VDA. DE GAÑOLA
probate and from the order of partition and distribution.
AND LEONA HITOSIS-GABITO GAMBA, RESPONDENTS.
5. On February 20, 1952, Leon Hitosis and the heirs of Florentino's
D E C I S I O N deceased brothers and sister instituted an action in the Court of
First Instance of Sorsogon against Pedro Gallanosa for the

recovery of the said sixty-one parcels of land. They alleged that
AQUINO, J.:
they, by themselves or through their predecessors-in-interest, had

been in continuous possession of those lands en concepto de
In this special civil action of certiorari, filed on July 29, 1968, the
dueño and that Gallanosa entered those lands in 1951 and
petitioners seek to annul the orders of respondent Judge dated
asserted ownership over the lands. They prayed that they be
May 3 and June 17, 1968, wherein he reconsidered his order of
declared the owners of the lands and that they be restored to the
January 10, 1968, dismissing, on the ground of prescription, the
possession thereof. They also claimed damages (Civil Case No.
complaint in Civil Case No. 2233 of the Court of First Instance of
696).
Sorsogon.
The case involves the sixty-one parcels of land in Sorsogon left by
Florentino Hitosis, with an estimated value of P50, 000, and claims
6. Gallanosa moved to dismiss the above complaint for lack of
for damages exceeding one million pesos. The undisputed facts
cause of action and on the ground of bar by the prior judgment in
are as follows:
the probate proceeding. Judge Anatolio C. Mañalac dismissed the
1. Florentino Hitosis executed a will in the Bicol dialect on June 19,
complaint on the ground of res judicata in his order of August 14,
1938 when he was eighty years old. He died on May 26, 1939 at
1952 wherein he said:
Irosin, Sorsogon. A childless widower, he was survived by his
brother, Leon Hitosis. His other brothers, named Juan, Tito
(Juancito), Leoncio (Aloncio) and Apolonio and only sister, Teodora,
"It also appears that the plaintiffs and/or their
were all dead.
predecessors-in-interest had intervened in the testate
2. On June 24, 1939 a petition for the probate of his will was filed
proceedings in Civil Case No. 3171 of this Court for the purpose of
in the Court of First Instance of Sorsogon (Special Proceeding No.
contesting the probate of the will of (the) late Florentino Hitosis;
3171). The notice of hearing was duly published. In that will,
and had their opposition prospered and the will denied of probate,
Florentino bequeathed his one-half share in the conjugal estate to
the proceedings would have been converted into one of intestacy
his second wife, Tecla Dollentas, and, should Tecla predecease
(Art. 960 Civil Code) and the settlement of the estate of the said
him, as was the case, his one-half share would be assigned to the
deceased would have been made in accordance with the
spouses Pedro Gallanosa and Corazon Grecia, the reason being
provisions of law governing legal or intestate succession x x x, in
that Pedro, Tecla's son by her first marriage, grew up under the
which case the said plaintiffs, as the nearest of kin or legal heirs of
care of Florentino; he had treated Pedro as his foster child, and
said Florentino Hitosis, would have succeeded to the ownership
Pedro had rendered services to Florentino and Tecla. Florentino
and possession of the 61 parcels of land in question forming part
likewise bequeathed his separate properties consisting of three
of his estate (Art. 1003, Civil Code).
parcels of abaca land and a parcel of riceland to his protegé
(sasacuyang ataman), Adolfo Fortajada, a minor.
3. Opposition to the probate of the will was registered by the
"However, the decision of Court was adverse to them, when it
testator's legal heirs, namely, his surviving brother, Leon, and his
dismissed their opposition and ordered the probate of his will.
nephews and nieces. After a hearing, wherein the oppositors did
From this decision (Annex K) legalizing the said will, the oppositors
not present any evidence in support of their opposition, Judge
did not file any appeal within the period fixed by law, despite the
Pablo S. Rivera, in his decision of October 27, 1939, admitted the
fact that they were duly notified thereof, so that the said decision
will to probate and appointed Gallanosa as executor. Judge Rivera
had become final and it now constitutes a bar to any action that
specifically found that the testator executed his last will "gozando
the plaintiffs may institute for the purpose of seeking a
de buena salud y facultades mentales y no obrando en virtud de
redetermination of their rights to inherit the properties of the late
amenaza, fraude o influencia indebida".
Florentino Hitosis.
4. On October 24, 1941, the testamentary heirs, the Gallanosa
spouses and Adolfo Fortajada, submitted a project of partition


"In other words, the said decision of this Court in Civil Case of the probated will, which action is a resuscitation of the
(Special Proceeding) No. 3171, in which the herein plaintiffs or their complaint of the same parties that the same court dismissed in
predecessors-in-interest had intervened as parties oppositors, 1952.
constitutes a final judicial determination of the issue that the said It is evident from the allegations of the complaint and from
plaintiffs, as ordinary heirs, have no legal rights to succeed to any defendants' motion to dismiss that plaintiffs' 1967 action is barred
of the properties of the late Florentino Hitosis; consequently, their by res judicata, a double-barrelled defense, and by prescription,
present claim to the ownership and possession of the 61 parcels of acquisitive and extinctive, or by what are known in the jus civile
land in question is without any legal merit or basis." and the jus gentium as usucapio, longi temporis possesio and
7. The plaintiffs did not appeal from that order of dismissal which praescriptio (See Ramos vs. Ramos, L-19872, December 3, 1974, 61
should have set the matter at rest. But the same plaintiffs or SCRA 284).
oppositors to the probate of the will, and their heirs, with a Our procedural law does not sanction an action for the
persistence befitting a more meritorious case, filed on September "annulment" of a will. In order that a will may take effect, it has to
21, 1967, or fifteen years after the dismissal of Civil Case No. 696 be probated, legalized or allowed in the proper testamentary
and twenty-eight years after the probate of the will, another action proceeding. The probate of the will is mandatory (Art. 838, Civil
in the same court against the Gallanosa spouses and Adolfo Code; sec. 1, Rule 75, formerly sec. 1, Rule 76, Rules of Court;
Fortajada for the "annulment" of the will of Florentino Hitosis and Guevara vs. Guevara, 74 Phil. 479; Guevara vs. Guevara, 98 Phil.
for the recovery of the same sixty-one parcels of land. They 249).
prayed for the appointment of a receiver. The testamentary proceeding is a special proceeding for the
8. As basis of their complaint, they alleged that the Gallanosa settlement of the testator's estate. A special proceeding is distinct
spouses, through fraud and deceit, caused the execution and and different from an ordinary action (Secs. 1 and 2, Rule 2 and
simulation of the document purporting to be the last will and sec. 1, Rule 72, Rules of Court).
testament of Florentino Hitosis. While in their 1952 complaint the We say that the defense of res judicata, as a ground for the
same plaintiffs alleged that they were in possession of the lands in dismissal of plaintiffs' 1967 complaint, is a two-pronged defense
question, in their 1967 complaint they admitted that since 1939, or because (1) the 1939 and 1943 decrees of probate and distribution
from the death of Florentino Hitosis, the defendants (now the in Special Proceeding No. 3171 and (2) the 1952 order of dismissal
petitioners) have been in possession of the disputed lands (Par. in Civil Case No. 696 of the lower court constitute bars by former
XIV of the complaint, p. 70, Rollo in Civil Case No. 555, Gubat judgment. Rule 39 of the Rules of Court provides:
Branch, which was transferred to Branch I in Sorsogon town where

Special Proceeding No. 3171 and Civil Case No. 696 were decided
and which was re-docketed as Civil Case No. 2233). "SEC. 49. Effect of judgments. - The effect of a judgment or final
9. As already stated, that 1967 complaint, upon motion of the order rendered by a court or judge of the Philippines, having
defendants, now the petitioners, was dismissed by respondent jurisdiction to pronounce the judgment or order, may be as follows:
Judge. The plaintiffs filed a motion for reconsideration.

Respondent Judge granted it and set aside the order of dismissal.
He denied defendants' motion for the reconsideration of his order "(a) In case of a judgment or order against a specific thing, or in
setting aside that dismissal order. respect to the probate of a will, or the administration of the estate
The petitioners or the defendants below contend in this certiorari of a deceased person, or in respect to the personal, political, or
case that the lower court has no jurisdiction to set aside the 1939 legal condition or status of a particular person or his relationship to
decree of probate and the 1952 order of dismissal in Civil Case another, the judgment or order is conclusive upon the title to the
No. 696 and that it acted with grave abuse of discretion in not thing, the will or administration, or the condition, status or
dismissing private respondents' 1967 complaint. relationship of the person; however, the probate of a will or
The issue is whether, under the facts set forth above, the private granting of letters of administration shall only be prima facie
respondents have a cause of action for the "annulment" of the will evidence of the death of the testator or intestate;
of Florentino Hitosis and for the recovery of the sixty-one parcels

of land adjudicated under that will to the petitioners.
We hold that the lower court committed a grave abuse of "(b) In other cases the judgment or order is, with respect to the
discretion in reconsidering its order of dismissal and in ignoring matter directly adjudged or as to any other matter that could have
the 1939 testamentary case and the 1952 Civil Case No. 696 which been raised in relation thereto, conclusive between the parties
is the same as the instant 1967 case. and their successors in interest by title subsequent to the
A rudimentary knowledge of substantive law and procedure is commencement of the action or special proceeding, litigating for
sufficient for an ordinary lawyer to conclude upon a casual perusal the same thing and under the same title and in the same capacity;
of the 1967 complaint that it is baseless and unwarranted.

What the plaintiffs seek is the "annulment" of a last will and
testament duly probated in 1939 by the lower court itself. The "(c) In any other litigation between the same parties or their
proceeding is coupled with an action to recover the lands successors in interest, that only is deemed to have been adjudged
adjudicated to the defendants by the same court in 1943 by virtue in a former judgment which appears upon its face to have been so


adjudged, or which was actually and necessarily included therein The plaintiffs or private respondents did not even bother to ask for
or necessary thereto." the annulment of the testamentary proceeding and the proceeding
The 1939 decree of probate is conclusive as to the due execution in Civil Case No. 696. Obviously, they realized that the final
or formal validity of the will (Sec. 625, Act 190; sec. 1, Rule 76, now adjudications in those cases have the binding force of res judicata
sec. 1, Rule 75, Rules of Court; Last par. of art. 838, Civil Code). and that there is no ground, nor is it timely, to ask for the
That means that the testator was of sound and disposing mind at nullification of the final orders and judgments in those two cases.
the time when he executed the will and was not acting under It is a fundamental concept in the organization of every jural
duress, menace, fraud, or undue influence; that the will was signed system, a principle of public policy, that, at the risk of occasional
by him in the presence of the required number of witnesses, and errors, judgments of courts should become final at some definite
that the will is genuine and is not a forgery. Accordingly, these date fixed by law. Interest rei publicae ut finis sit litium. "The very
facts cannot again be questioned in a subsequent proceeding, not object for which the courts were constituted was to put an end to
even in a criminal action for the forgery of the will. (3 Moran's controversies." (Dy Cay vs. Crossfield and O'Brien, 38 Phil. 521;
Comments on the Rules of Court, 1970 Edition, p. 395; Manahan Peñalosa vs. Tuason, 22 Phil. 303; De la Cerna vs. Potot, supra).
vs. Manahan, 58 Phil. 448). After the period for seeking relief from a final order or judgment
After the finality of the allowance of a will, the issue as to the under Rule 38 of the Rules of Court has expired, a final judgment
voluntariness of its execution cannot be raised anymore (Santos or order can be set aside only on the grounds of (a) lack of
vs. De Buenaventura, L-22797, September 22, 1966, 18 SCRA 47). jurisdiction or lack of due process of law or (b) that the judgment
In Austria vs. Ventenilla, 21 Phil. 180, a "petition for annulment of a was obtained by means of extrinsic or collateral fraud. In the latter
will" was not entertained after the decree of probate had become case, the period for annulling the judgment is four years from the
final. That case is summarized as follows: discovery of the fraud (2 Moran's Comments on the Rules of Court,
1970 Edition, pp. 245-246; Mauricio vs. Villanueva, 106 Phil. 1159).

To hurdle over the obstacle of prescription, the trial court, naively
"Wills; Probate; Alleged Fraudulent Will; Appeal. - V. died. His will adopting the theory of plaintiffs' counsel, held that the action for
was admitted to probate without objection. No appeal was taken the recovery of the lands had not prescribed because the rule in
from said order. It was admitted that due and legal notice had article 1410 of the Civil Code, that "the action or defense for the
been given to all parties. Fifteen months after the date of said declaration of the inexistence of a contract does not prescribe",
order, a motion was presented in the lower court to have said will applies to wills.
declared null and void, for the reason that fraud had been That ruling is a glaring error. Article 1410 cannot possibly apply to
practised upon the deceased in the making of his will. last wills and testaments. The trial court and plaintiffs' counsel
relied upon the case of Dingle vs. Guillermo, 48 O. G. 4410,

allegedly decided by this Court, which cited the ruling in Tipton vs.
"Held: That under section 625 of Act No. 190, the only time given Velasco, 6 Phil. 67, that mere lapse of time cannot give efficacy to
parties who are displeased with the order admitting to probate a void contracts, a ruling elevated to the category of a codal
will, for an appeal, is the time given for appeals in ordinary actions; provision in article 1410. The Dingle case was decided by the Court
but without deciding whether or not an order admitting a will to of Appeals. Even the trial court did not take pains to verify the
probate will be opened for fraud, after the time allowed for an misrepresentation of plaintiffs' counsel that the Dingle case was
appeal has expired, when no appeal is taken from an order decided by this Court. An elementary knowledge of civil law could
probating a will, the heirs can not, in subsequent litigation in the have alerted the trial court to the egregious error of plaintiffs'
same proceedings, raise questions relating to its due execution. counsel in arguing that article 1410 applies to wills.
The probate of a will is conclusive as to its due execution and as to WHEREFORE, the lower court's orders of May 3 and June 17, 1968
the testamentary capacity of the testator." (See Austria vs. Heirs of are reversed and set aside and its order of dismissal dated
Ventenilla, 99 Phil. 1069). January 10, 1968 is affirmed. Costs against the private
On the other hand, the 1943 decree of adjudication rendered by respondents.
the trial court in the testate proceeding for the settlement of the SO ORDERED.
estate of Florentino Hitosis, having been rendered in a proceeding Fernando, (Chairman), Barredo, Antonio, and Santos, JJ., concur.
in rem, is, under the abovequoted section 49(a), binding upon the Concepcion, Jr., J., on leave.
whole world (Manalo vs. Paredes, 47 Phil. 938; In re Estate of
Johnson, 39 Phil. 156; De la Cerna vs. Potot, 120 Phil. 1361, 1364;
McMaster vs. Henry Reissmann & Co., 68 Phil. 142). 52 De la Cerna v. Potot 12 SCRA 576
It is not only the 1939 probate proceeding that can be interposed
120 Phil. 1361
as res judicata with respect to private respondents' complaint.
The 1952 order of dismissal rendered by Judge Mañalac in Civil
Case No. 696, a judgment in personam, was an adjudication on
[ G.R. No. L-20234, December 23, 1964 ]
the merits (Sec. 4, Rule 30, old Rules of Court). It constitutes a bar
by former judgment under the aforequoted section 49(b)
PAULA DE LA CERNA, ET AL., PETITIONERS, VS.
(Anticamara vs. Ong, L-29689, April 14, 1978).



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



Instance of Cebu that the joint will is one prohibited by law was the last 30 years now. Dra. Maninang and her husband Pamping
correct as to the participation of the deceased Gervasia Rebaca in have been kind to me. x x x I have found peace and happiness
the properties in question, for the reasons extensively discussed in with them even during the time when my sisters were still alive
our decision in Bilbao vs. Bilbao, 87 Phil. 144, that explained the and especially now when I am now being troubled by my nephew
previous holding in Macrohon vs. Saavedra, 51 Phil., 267. Bernardo and niece Salvacion. I am not incompetent as Nonoy
Therefore, the undivided interest of Gervasia Rebaca should pass would like me to appear. I know what is right and wrong. I can
upon her death to her heirs intestate, and not exclusively to the decide for myself. I do not consider Nonoy as my adopted son.
testamentary heir, unless some other valid will in her favor is He has made me do things against my will."
shown to exist, or unless she be the only heir intestate of said "x x x"
Gervasia. On June 9, 1977, petitioner Soledad Maninang filed a Petition for
It is unnecessary to emphasize that the fact that joint wills should probate of the Will of the decedent with the Court of First
be in common usage could not make them valid when our Civil Instance-Branch IV, Quezon City (Sp. Proc. No. Q-23304,
Codes consistently invalidated them, because laws are only hereinafter referred to as the Testate Case).
repealed by other subsequent laws, and no usage to the contrary On July 25, 1977, herein respondent Bernardo Aseneta, who, as
may prevail against their observance (Art. 5, Civ. Code of 1889; Art. the adopted son, claims to be the sole heir of decedent Clemencia
7, Civil Code of the Philippines of 1950). Aseneta, instituted intestate proceedings with the Court of First
With the foregoing modification, the judgment of the Court of Instance-Branch XI, Pasig, Rizal (Sp. Proc. No. 8569, called
Appeals in CA-G.R. No. 23763-R is affirmed. No costs. hereinafter the Intestate Case, for brevity).
Bengzon, C. J., Bautista Angelo, Concepcion, Barrera, Paredes, On December 23, 1977, the Testate and Intestate Cases were
Dizon, Regala, Makalintal, Bengzon, J. P., and Zaldivar, JJ., concur. ordered consolidated before Branch XI, presided by respondent
Judge.
Respondent Bernardo then filed a Motion to Dismiss the Testate
53 Maninang v. CA G.R. No. L-57848 June 19, Case on the ground that the holographic will was null and void
1982 because he, as the only compulsory heir, was preterited and,
199 Phil. 640
therefore, intestacy should ensue. In support of said Motion to

Dismiss, respondent Bernardo cited the cases of Neri vs. Akutin
(72 Phil. 322); Nuguid vs. Nuguid (17 SCRA 449), and Ramos vs.
Baldovino (2 CA Rep. 2nd, 878).[1]
FIRST DIVISION In her Opposition to said Motion to Dismiss, petitioner Soledad
averred that it is still the rule that in a case for probate of a Will, the
[ G.R. No. L-57848, June 19, 1982 ]
Court's area of inquiry is limited to an examination of and
resolution on the extrinsic validity of the will; and that respondent
RAFAEL E. MANINANG AND SOLEDAD L. MANINANG, Bernardo was effectively disinherited by the decedent.[2]
PETITIONERS, VS. COURT OF APPEALS, HON. RICARDO
On September 8, 1980, the lower Court ordered the dismissal of
L. PRONOVE, JR., AS JUDGE OF THE COURT OF FIRST
INSTANCE OF RIZAL AND BERNARDO S. ASENETA, the Testate Case in this wise:
RESPONDENTS. "For reasons stated in the motion to dismiss filed by petitioner
Bernardo S. Aseneta which the Court finds meritorious, the
D E C I S I O N
petition for probate of will filed by Soledad L. Maninang and which
was docketed as Sp. Proc. No. Q-23304 is DISMISSED, without
MELENCIO-HERRERA, J.: pronouncement as to costs."
On December 19, 1980, the lower Court denied reconsideration for
A Petition to Review the Decision of April 28, 1981 of respondent lack of merit and in the same Order appointed Bernardo as the
Appellate Court in CA-G.R. No. 12032-R entitled "Rafael E. administrator of the intestate estate of the deceased Clemencia
Maninang and Soledad L. Maninang vs Hon. Ricardo Pronove, Aseneta "considering that he is a forced heir of said deceased
Judge of the Court of First Instance of Rizal, Pasig, Branch XI, and while oppositor Soledad Maninang is not, and considering further
Bernardo S. Aseneta". that Bernardo Aseneta has not been shown to be unfit to perform
Pertinent to the controversy are the following antecedental facts: the duties of the trust."
On May 21, 1977, Clemencia Aseneta, single, died at the Manila Petitioners Maninang resorted to a Certiorari Petition before
Sanitarium Hospital at age 81. She left a holographic will, the respondent Court of Appeals alleging that the lower Court
pertinent portions of which are quoted hereunder: exceeded its jurisdiction in issuing the Orders of dismissal of the
"x x x Testate Case (September 8, 1980) and denial of reconsideration
"It is my will that all my real properties located in Manila, Makati, (December 19, 1980).
Quezon City, Albay and Legaspi City and all my personal On April 28, 1981, respondent Court[3] denied Certiorari and ruled
properties shall be inherited upon my death by Dra. Soledad L. that the trial Judge's Order of dismissal was final in nature as it
Maninang with whose family I have lived continuously for around finally disposed of the Testate Case and, therefore, appeal was the
proper remedy, which petitioners failed to avail of. Continuing, it


said that even granting that the lower Court committed errors in extrinsic validity of the Will demanded.
issuing the questioned Orders, those are errors of judgment Moreover, in the Nuguid case, this Court ruled that the Will was
reviewable only by appeal and not by Certiorari. intrinsically invalid as it completely preterited the parents of the
Thus, this Petition before us. testator. In the instant case, a crucial issue that calls for resolution
We find that the Court a quo acted in excess of its jurisdiction is whether under the terms of the decedent's Will, private
when it dismissed the Testate Case. Generally, the probate of a respondent had been preterited or disinherited, and if the latter,
Will is mandatory. whether it was a valid disinheritance. Preterition and
"No will shall pass either real or personal property unless it is disinheritance are two diverse concepts.
[4]
proved and allowed in accordance with the Rules of Court." "x x x Preterition 'consists in the omission in the testator's will of
The law enjoins the probate of the Will and public policy requires the forced heirs or anyone of them, either because they are not
it, because unless the Will is probated and notice thereof given to mentioned therein, or, though mentioned, they are neither
the whole world, the right of a person to dispose of his property by instituted as heirs nor are expressly disinherited.' (Neri vs. Akutin,
[5]
Will may be rendered nugatory. 72 Phil. 325). Disinheritance, in turn, 'is a testamentary disposition
Normally, the probate of a Will does not look into its intrinsic depriving any compulsory heir of his share in the legitime for a
validity. cause authorized by law.' (Justice J.B.L. Reyes and R.C. Puno, 'An
"x x x The authentication of a will decides no other question than Outline of Philippine Civil Law', 1956 ed., Vol. III, p. 8, citing cases)
such as touch upon the capacity of the testator and the Disinheritance is always 'voluntary'; preterition, upon the other
compliance with those requisites or solemnities which the law hand, is presumed to be 'involuntary' (Sanchez Roman, Estudios
prescribes for the validity of wills. It does not determine nor even de Derecho Civil 2nd edition, Volumen 2.o, p. 1131)."[10]
by implication prejudge the validity or efficiency (sic) of the The effects of preterition and disinheritance are also totally
provisions, these may be impugned as being vicious or null, different.
notwithstanding its authentication. The questions relating to these "x x x The effects flowing from preterition are totally different from
points remain entirely unaffected, and may be raised even after those of disinheritance. Preterition under Article 854 of the New
[6]
the will has been authenticated x x x" Civil Code 'shall annul the institution of heir.' This annulment is in
"Opposition to the intrinsic validity or legality of the provisions of toto, unless in the will there are, in addition, testamentary
the will cannot be entertained in Probate proceeding because its dispositions in the form of devises or legacies. In ineffective
only purpose is merely to determine if the will has been executed disinheritance under Article 918 of the same Code, such
[7]
in accordance with the requirements of the law." disinheritance shall also 'annul the institution of heirs', but only
Respondent Bernardo, however, relies on the pronouncement in 'insofar as it may prejudice the person disinherited', which last
Nuguid vs. Nuguid[8], reading: phrase was omitted in the case of preterition (III Tolentino, Civil
"In a proceeding for the probate of a will, the Court's area of Code of the Philippines, 1961 Edition, p. 172). Better stated yet, in
inquiry is limited to an examination of, and resolution on, the disinheritance the nullity is limited to that portion of the estate of
extrinsic validity of the will, the due execution thereof, the which the disinherited heirs have been illegally deprived."[11]
testatrix's testamentary capacity and the compliance with the By virtue of the dismissal of the Testate Case, the determination of
requisites or solemnities prescribed by law. The intrinsic validity of that controversial issue has not been thoroughly considered. We
the will normally comes only after the court has declared that the gather from the assailed Order of the trial Court that its conclusion
will has been duly authenticated. However, where practical was that respondent Bernardo has been preterited. We are of
considerations demand that the intrinsic validity of the will be opinion, however, that from the face of the Will, that conclusion is
passed upon, even before it is probated, the Court should meet not indubitable.
that issue. (Underscoring supplied) As held in the case of Vda. de Precilla vs. Narciso[12].
Our ruling in Balanay vs. Hon. Martinez[9] had a similar thrust: "x x x it is as important a matter of public interest that a purported
"The trial court acted correctly in passing upon the will's intrinsic will is not denied legalization on dubious grounds. Otherwise, the
validity even before its formal validity had been established. The very institution of testamentary succession will be shaken to its
probate of a will might become an idle ceremony if on its face it foundation. x x x"
appears to be intrinsically void. Where practical considerations Coming now to the procedural aspect, suffice it to state that in
demand that the intrinsic validity of the will be passed upon, even view of our finding that respondent Judge had acted in excess of
before it is probated, the court should meet the issue." his jurisdiction in dismissing the Testate Case, Certiorari is a proper
The Nuguid and the Balanay cases provide the exception rather remedy. An act done by a Probate Court in excess of its
than the rule. The intrinsic validity of the Wills in those cases was jurisdiction may be corrected by Certiorari.[13]And even assuming
passed upon even before probate because "practical the existence of the remedy of appeal, we harken to the rule that
considerations" so demanded. Moreover, for the parties in the in the broader interests of justice, a petition for Certiorari may be
Nuguid case, the "meat of the controversy" was the intrinsic entertained, particularly where appeal would not afford speedy
validity of the Will; in fact, the parties in that case "shunted aside and adequate relief.
the question of whether or not the Will should be allowed WHEREFORE, the Decision in question is set aside and the Orders
probate." Not so in the case before us now where the probate of of the Court of First Instance-Branch XI, Rizal, dated September 8,
the Will is insisted on by petitioners and a resolution on the 1980 and December 19, 1980, are nullified. Special Proceeding



No. Q-23304 is hereby remanded to said Court of First instituted against PASTOR, JR. and his wife an action for
Instance-Branch XI, Rizal, therein to be reinstated and reconveyance of alleged properties of the estate, which included
consolidated with Special Proceeding No. 8569 for further the properties subject of the legacy and which were in the names
proceedings. of the spouses PASTOR, JR. and his wife, Maria Elena Achaval de
No pronouncement as to costs. Pastor, who claimed to be the owners thereof in their own rights,
SO ORDERED. and not by inheritance. The action, docketed as Civil Case No.
274-R, was filed with the Court of First Instance of Cebu, Branch
Teehankee, (Chairman), Makasiar, Plana, Relova, and Gutierrez, IX.
Jr., JJ., concur. On February 2, 1971, PASTOR, JR. and his sister SOFIA filed their
Vasquez, J., no part. opposition to the petition for probate and the order appointing
QUEMADA as special administrator.
On December 5, 1972, the PROBATE COURT issued an order
54 Pastor v. CA (1983) 122 SCRA 885 allowing the will to probate. Appealed to the Court of Appeals in
207 Phil. 758 CA-G.R. No. 52961-R, the order was affirmed in a decision dated
May 9, 1977. On petition for review, the Supreme Court in G.R. No.
L-46645 dismissed the petition in a minute resolution dated

November 1, 1977 and remanded the same to the PROBATE
COURT after denying reconsideration on January 11, 1978.
FIRST DIVISION
For two years after remand of the case to the PROBATE COURT,
[ G.R. No. 56340, June 24, 1983 ] QUEMADA filed pleading after pleading asking for payment of his
legacy and seizure of the properties subject of said legacy.
SPOUSES ALVARO PASTOR, JR. AND MA. ELENA PASTOR, JR. and SOFIA opposed these pleadings on the ground
ACHAVAL DE PASTOR, PETITIONERS, VS. THE COURT OF of pendency of the reconveyance suit with another branch of the
APPEALS, JUAN Y. REYES, JUDGE OF BRANCH I, COURT
Cebu Court of First Instance. All pleadings remained unacted upon
OF FIRST INSTANCE OF CEBU AND LEWELLYN BARLITO
by the PROBATE COURT.
QUEMADA, RESPONDENTS.
On March 5, 1980, the PROBATE COURT set the hearing on the
D E C I S I O N intrinsic validity of the will for March 25, 1980, but upon objection
of PASTOR, JR. and SOFIA on the same ground of pendency of the

reconveyance suit, no hearing was held on March 25. Instead, the
PLANA, J.:
PROBATE COURT required the parties to submit their respective

position papers as to how much inheritance QUEMADA was
I. FACTS:
entitled to receive under the will. Pursuant thereto, PASTOR, JR.
This is a case of hereditary succession.
and SOFIA submitted their Memorandum of authorities dated April
Alvaro Pastor, Sr. (PASTOR, SR.), a Spanish subject, died in Cebu
10, which in effect showed that determination of how much
City on June 5, 1966, survived by his Spanish wife Sofia Bossio
QUEMADA should receive was still premature. QUEMADA
(who also died on October 21, 1966), their two legitimate children
submitted his Position Paper dated April 20, 1980. ATLAS, upon
Alvaro Pastor, Jr. (PASTOR, JR.) and Sofia Pastor de Midgely
order of the Court, submitted a sworn statement of royalties paid
(SOFIA), and an illegitimate child, not natural, by the name of
to the Pastor Group of claimants from June 1966 (when Pastor, Sr.
Lewellyn Barlito Quemada (QUEMADA). PASTOR, JR. is a
died) to February 1980. The statement revealed that of the mining
Philippine citizen, having been naturalized in 1936. SOFIA is a
claims being operated by ATLAS, 60% pertained to the Pastor
Spanish subject. QUEMADA is a Filipino by his mother's
Group distributed as follows:
citizenship.
On November 13, 1970, QUEMADA filed a petition for the probate 1. A. Pastor, Jr. 40.5%
and allowance of an alleged holographic will of PASTOR, SR. with 2. E. Pelaez, Sr. 15.0%
the Court of First Instance of Cebu, Branch I (PROBATE COURT), 3. B. Quemada 4.5%
docketed as SP No. 3128-R. The will contained only one
On August 20, 1980, while the reconveyance suit was still being
testamentary disposition: a legacy in favor of QUEMADA
litigated in Branch IX of the Court of First Instance of Cebu, the
consisting of 30% of PASTOR, SR.'s 42% share in the operation by
PROBATE COURT issued the now assailed Order of Execution and
Atlas Consolidated Mining and Development Corporation (ATLAS)
Garnishment, resolving the question of ownership of the royalties
of some mining claims in Piña-Barot, Cebu.
payable by ATLAS and ruling in effect that the legacy to
On November 21, 1970, the PROBATE COURT, upon motion of
QUEMADA was not inofficious. [There was absolutely no
QUEMADA and after an ex parte hearing, appointed him special
statement or claim in the Order that the Probate Order of
administrator of the entire estate of PASTOR, SR., whether or not
December 5, 1972 had previously resolved the issue of ownership
covered or affected by the holographic will. He assumed office as
of the mining rights or royalties thereon, nor the intrinsic validity of
such on December 4, 1970 after filing a bond of P5,000.00.
the holographic will.]
On December 7, 1970, QUEMADA as special administrator,
The order of August 20, 1980 found that as per the holographic


will and a written acknowledgment of PASTOR, JR. dated June 17, the special administrator. Further, the Order granted QUEMADA
1962, of the above 60% interest in the mining claims belonging to 6% interest on his unpaid legacy from August 1980 until fully paid.]
the Pastor Group, 42% belonged to PASTOR, SR. and only 33% Nonetheless, the Court of Appeals denied reconsideration.
belonged to PASTOR, JR. The remaining 25% belonged to E. Hence, this Petition for Review by certiorari with prayer for a writ of
Pelaez, also of the Pastor Group. The PROBATE COURT thus preliminary injunction, assailing the decision of the Court of
directed ATLAS to remit directly to QUEMADA the 42% royalties Appeals dated November 18, 1980 as well as the orders of the
due decedent's estate, of which QUEMADA was authorized to Probate Court dated August 20, 1980, November 11,1980 and
retain 75% for himself as legatee and to deposit 25% with a December 17, 1980, filed by petitioners on March 26, 1981, followed
reputable banking institution for payment of the estate taxes and by a Supplemental Petition with Urgent Prayer for Restraining
other obligations of the estate. The 33% share of PASTOR, JR. Order.
and/or his assignees was ordered garnished to answer for the In April 1981, the Court (First Division) issued a writ of preliminary
accumulated legacy of QUEMADA from the time of PASTOR, SR.'s injunction, the lifting of which was denied in the Resolution of the
death, which amounted to over two million pesos. same Division dated October 18, 1982, although the bond of
The order being "immediately executory", QUEMADA succeeded petitioners was increased from P50,000.00 to P100,000.00.
in obtaining a Writ of Execution and Garnishment on September 4, Between December 21, 1981 and October 12, 1982, private
1980, and in serving the same on ATLAS on the same day. Notified respondent filed seven successive motions for early resolution.
of the Order on September 6, 1980, the oppositors sought Five of these motions expressly prayed for the resolution of the
reconsideration thereof on the same date primarily on the ground question as to whether or not the petition should be given due
that the PROBATE COURT gravely abused its discretion when it course.
resolved the question of ownership of the royalties and ordered On October 18, 1982, the Court (First Division) adopted a resolution
the payment of QUEMADA's legacy after prematurely passing stating that "the petition in fact and in effect was given due course
upon the intrinsic validity of the will. In the meantime, the when this case was heard on the merits on September 7, (should
PROBATE COURT ordered suspension of payment of all royalties be October 21, 1981) and concise memoranda in amplification of
due PASTOR, JR. and/or his assignees until after resolution of their oral arguments on the merits of the case were filed by the
oppositors' motion for reconsideration. parties pursuant to the resolution of October 21, 1981. . ." and
Before the Motion for Reconsideration could be resolved, denied in a resolution dated December 13, 1982, private
however, PASTOR, JR., this time joined by his wife Ma. ELENA respondent's "Omnibus motion to set aside resolution dated
ACHAVAL DE PASTOR, filed with the Court of Appeals a Petition October 18, 1982 and to submit the matter of due course to the
for Certiorari and Prohibition with a prayer for writ of preliminary present membership of the Division; and to reassign the case to
injunction (CA-G.R. No. SP-11373-R). They assailed the Order dated another ponente."
August 20, 1980 and the writ of execution and garnishment issued Upon Motion for Reconsideration of the October 18, 1982 and
pursuant thereto. The petition was denied on November 18, 1980 December 13, 1982 Resolutions, the Court en banc resolved to
on the grounds (1) that its filing was premature because the Motion CONFIRM the questioned resolutions insofar as they resolved that
for Reconsideration of the questioned Order was still pending the petition in fact and in effect had been given due course.
determination by the PROBATE COURT; and (2) that although "the II. ISSUES:
rule that a motion for reconsideration is prerequisite for an action Assailed by the petitioners in these proceedings is the validity of
for certiorari is never an absolute rule," the Order assailed is the Order of execution and garnishment dated August 20, 1980 as
"legally valid." well as the Orders subsequently issued allegedly to implement the
On December 9, 1980, PASTOR, JR. and his wife moved for Probate Order of December 5, 1972, to wit: the Order of November
reconsideration of the Court of Appeal's decision of November 18, 11, 1980 declaring that the Probate Order of 1972 indeed resolved
1980, calling the attention of the appellate court to another order the issues of ownership and intrinsic validity of the will, and
of the Probate Court dated November 11, 1980 (i.e., while their reiterating the Order of Execution dated August 20, 1980; and the
petition for certiorari was pending decision in the appellate court), Order of December 17, 1980 reducing to P2,251,516.74 the amount
by which the oppositors' motion for reconsideration of the Probate payable to QUEMADA representing the royalties he should have
Court's Order of August 20, 1980 was denied. [The November 11 received from the death of PASTOR, SR. in 1966 up to February
Order declared that the questions of intrinsic validity of the will 1980.
and of ownership over the mining claims (not the royalties alone) The Probate Order itself, insofar as it merely allowed the
had been finally adjudicated by the final and executory Order of holographic will in probate, is not questioned. But petitioners
December 5, 1972, as affirmed by the Court of Appeals and the denounce the Probate Court for having acted beyond its
Supreme Court, thereby rendering moot and academic the suit for jurisdiction or with grave abuse of discretion when it issued the
reconveyance then pending in the Court of First Instance of Cebu, assailed Orders. Their argument runs this way: Before the
Branch IX. It clarified that only the 33% share of PASTOR, JR. in the provisions of the holographic will can be implemented, the
royalties (less the 7.5% share which he had assigned to QUEMADA questions of ownership of the mining properties and the intrinsic
before PASTOR, SR. died) was to be garnished and that as regards validity of the holographic will must first be resolved with finality.
PASTOR, SR.'s 42% share, what was ordered was just the transfer Now, contrary to the position taken by the Probate Court in 1980 —
of its possession to the custody of the PROBATE COURT through i.e., almost eight years after the probate of the will in 1972 — the



Probate Order did not resolve the two said issues. Therefore, the proceedings for the purported estate of the decedent in
Probate Order could not have resolved and actually did not decide the Philippines.
QUEMADA's entitlement to the legacy. This being so, the Orders "In its broad and total perspective, the whole proceedings
for the payment of the legacy in alleged implementation of the are being impugned by the oppositors on jurisdictional
Probate Order of 1972 are unwarranted for lack of basis. grounds, i.e., that the fact of the decedent's residence and
Closely related to the foregoing is the issue raised by QUEMADA: existence of properties in the Philippines have not been
The Probate Order of 1972 having become final and executory, established.
how can its implementation (payment of legacy) be restrained? Of "Specifically placed in issue with respect to the probate
course, the question assumes that QUEMADA's entitlement to the proceedings are: (a) whether or not the holographic will
legacy was finally adjudged in the Probate Order. (Exhibit "J") has lost its efficacy as the last will and
On the merits, therefore, the basic issue is whether the Probate testament upon the death of Alvaro Pastor, Sr. on June 5,
Order of December 5, 1972 resolved with finality the questions of 1966, in Cebu City, Philippines; (b) Whether or not the said
ownership and intrinsic validity. A negative finding will necessarily will has been executed with all the formalities required by
render moot and academic the other issues raised by the parties, law; and (c) Did the late presentation of the holographic will
such as the jurisdiction of the Probate Court to conclusively affect the validity of the same?
resolve title to property, and the constitutionality and "Issues In the Administration Proceedings are as follows: (1)
repercussions of a ruling that the mining properties in dispute, Was the ex-parte appointment of the petitioner as special
although in the name of PASTOR, JR. and his wife, really belonged administrator valid and proper? (2) Is there any
to the decedent despite the latter's constitutional disqualification indispensable necessity for the estate of the decedent to
as an alien. be placed under administration? (3) Whether or not
On the procedural aspect, placed in issue is the propriety of petitioner is qualified to be a special administrator of the
certiorari as a means to assail the validity of the order of execution estate; and (4) Whether or not the properties listed in the
and the implementing writ. inventory (submitted by the special administrator but not
III. DISCUSSION: approved by the Probate Court) are to be excluded."
1. Issue of Ownership— Then came what purports to be the dispositive portion:
(a) In a special proceeding for the probate of a will, the
"Upon the foregoing premises, this Court rules on
issue by and large is restricted to the extrinsic validity of
and resolves some of the problems and issues
the will, i.e., whether the testator, being of sound mind,
presented in these proceedings, as follows:
freely executed the will in accordance with the formalities
"(a) The Court has acquired jurisdiction aver the
prescribed by law. (Rules of Court, Rule 75, Section 1; Rule
probate proceedings as it hereby allows and
76, Section 9.) As a rule, the question of ownership is an
approves the so-called holographic will of testator
extraneous matter which the Probate Court cannot resolve
Alvaro Pastor, Sr., executed on July 31, 1961 with
with finality. Thus, for the purpose of determining whether
respect to its extrinsic validity, the same having
a certain property should or should not be included in the
been duly authenticated pursuant to the requisites
inventory of estate properties, the Probate Court may pass
or solemnities prescribed by law. Let, therefore, a
upon the title thereto, but such determination is
certificate of its allowance be prepared by the
provisional, not conclusive, and is subject to the final
Branch Clerk of this Court to be signed by this
decision in a separate action to resolve title. [3 Moran,
Presiding Judge, and attested by the seal of the
Comments on the Rules of Court (1980 ed.), p. 458; Valero
Court, and thereafter attached to the will, and the
Vda. de Rodriguez vs. Court of Appeals, 91 SCRA 540.]
will and certificate filed and recorded by the clerk.
(b) The rule is that execution of a judgment must conform
Let attested copies of the will and of the certificate
to that decreed in the dispositive part of the decision.
of allowance thereof be sent to Atlas Consolidated
(Philippine-American Insurance Co. vs. Honorable Flores,
Mining & Development Corporation, Goodrich
97 SCRA 811.) However, in case of ambiguity or uncertainty,
Bldg., Cebu City, and the Register of Deeds of
the body of the decision may be scanned for guidance in
Cebu or of Toledo City, as the case may be, for
construing the judgment. (Heirs of Presto vs. Galang, 78
recording.
SCRA 534; Fabular vs. Court of Appeals, 119 SCRA 329;
"(b) There was a delay in the granting of the letters
Robles vs. Timario, 107 Phil. 809.)
testamentary or of administration—for as a matter
The Order sought to be executed by the assailed Order of
of fact, no regular executor and/or administrator
execution is the Probate Order of December 5, 1972 which
has been appointed up to this time—and the
allegedly resolved the question of ownership of the
appointment of a special administrator was, and
disputed mining properties. The said Probate Order
still is, justified under the circumstances to take
enumerated the issues before the Probate Court,
possession and charge of the estate of the
thus:"Unmistakably, there are three aspects in these
deceased in the Philippines (particularly in Cebu)
proceedings: (1) the probate of the holographic will; (2) the
until the problems causing the delay are decided
intestate estate aspect; and (3) the administration


and the regular executor and/or administrator validity of the will, and the need for and propriety of
appointed. appointing a special administrator. Thus it allowed and
"(c) There is a necessity and propriety of a special approved the holographic will "with respect to its extrinsic
administrator and later on an executor and/or validity, the same having been duly authenticated pursuant
administrator in these proceedings, in spite of this to the requisites or solemnities prescribed by law." It
Court's declaration that the oppositors are the declared that the intestate estate administration aspect
forced heirs and the petitioner is merely vested must proceed "subject to the outcome of the suit for
with the character of a voluntary heir to the extent reconveyance of ownership and possession of real and
of the bounty given to him (under) the will insofar personal properties in Civil Case 274-T before Branch IX of
as the same will not prejudice the legitimes of the the CFI of Cebu." [Parenthetically, although the statement
oppositors, for the following reasons: refers only to the "intestate" aspect, it defies
understanding how ownership by the estate of some
1. To submit a complete inventory of the estate of the
properties could be deemed finally resolved for purposes
decedent-testator Alvaro Pastor, Sr.;
of testate administration, but not so for intestate purposes.

Can the estate be the owner of a property for testate but
2. To administer and to continue to put to prolific
not for intestate purposes?] Then again, the Probate Order
utilization of the properties of the decedent;
(while indeed it does not direct the implementation of the

legacy) conditionally stated that the intestate

administration aspect must proceed "unless . . . it is proven
3. To keep and maintain the houses and other
. . . that the legacy to be given and delivered to the
structures and fences belonging to the estate,
petitioner does not exceed the free portion of the estate of
since the forced heirs are residing in Spain, and
the testator," which clearly implies that the issue of
prepare them for delivery to the heirs in good order
impairment of legitime (an aspect of intrinsic validity) was in
after partition and when directed by the Court, but
fact not resolved. Finally, the Probate Order did not rule on
only after the payment of estate and inheritance
the propriety of allowing QUEMADA to remain as special
taxes;
administrator of estate properties not covered by the
holographic will, "considering that this (Probate) Order
"(d) Subject to the outcome of the suit for reconveyance of should have been properly issued solely as a resolution on
ownership and possession of real and personal properties the issue of whether or not to allow and approve the
in Civil Case No. 274-T before Branch IX of the Court of aforestated will."(c) That the Probate Order did not resolve
First Instance of Cebu, the intestate estate administration the question of ownership of the properties listed in the
aspect must proceed, unless, however, it is duly proven by estate inventory was appropriate, considering that the
the oppositors that debts of the decedent have already issue of ownership was the very subject of controversy in
been paid, that there had been an extra-judicial partition or the reconveyance suit that was still pending in Branch IX of
summary one between the forced heirs, that the legacy to the Court of First Instance of Cebu.(d) What, therefore, the
be given and delivered to the petitioner does not exceed Court of Appeals and, in effect, the Supreme Court
the free portion of the estate of the testator, that the affirmed en toto when they reviewed the Probate Order
respective shares of the forced heirs have been fairly were only the matters properly adjudged in the said
apportioned, distributed and delivered to the two forced Order.(e) In an attempt to justify the issuance of the Order
heirs of Alvaro Pastor, Sr., after deducting the property of execution dated August 20, 1980, the Probate Court in
willed to the petitioner, and the estate and inheritance its Order of November 11, 1980 explained that the basis for
taxes have already been paid to the Government thru the its conclusion that the question of ownership had been
Bureau of Internal Revenue. formally resolved by the Probate Order of 1972 are the
"The suitability and propriety of allowing petitioner to findings in the latter Order that (1) during the lifetime of the
remain as special administrator or administrator of the decedent, he was receiving royalties from ATLAS; (2) he
other properties of the estate of the decedent, which had resided in the Philippines since pre-war days and was
properties are not directly or indirectly affected by the engaged in the mine prospecting business since 1937
provisions of the holographic will (such as bank deposits, particularly in the City of Toledo; and (3) PASTOR, JR. was
land in Mactan, etc.), will be resolved in another order as only acting as dummy for his father because the latter was
separate incident, considering that this order should have a Spaniard.Based on the premises laid, the conclusion is
been properly issued solely as a resolution on the issue of obviously far-fetched.(f) It was, therefore, error for the
whether or not to allow and approve the aforestated will." assailed implementing Orders to conclude that the Probate
(Italics supplied.)Nowhere in the dispositive portion is there Order adjudged with finality the question of ownership of
a declaration of ownership of specific properties. On the the mining properties and royalties, and that, premised on
contrary, it is manifest therein that ownership was not this conclusion, the dispositive portion of the said Probate
resolved. For it confined itself to the question of extrinsic Order directed the special administrator to pay the legacy



in dispute. must be rejected. Grave abuse of discretion amounting to
lack of jurisdiction is much too evident in the actuations of
2. Issue of Intrinsic Validity of the Holographic Will—
the probate court to be overlooked or condoned.
(a) When PASTOR, SR. died in 1966, he was survived by his
(a) Without a final, authoritative adjudication of the issue as
wife, aside from his two legitimate children and one
to what properties compose the estate of PASTOR, SR. in
illegitimate son. There is therefore a need to liquidate the
the face of conflicting claims made by heirs and a non-heir
conjugal partnership and set apart the share of PASTOR,
(MA. ELENA ACHAVAL DE PASTOR) involving properties
SR.'s wife in the conjugal partnership preparatory to the
not in the name of the decedent, and in the absence of a
administration and liquidation of the estate of PASTOR, SR.
resolution on the intrinsic validity of the will here in
which will include, among others, the determination of the
question, there was no basis for the Probate Court to hold
extent of the statutory usufructuary right of his wife until
in its Probate Order of 1972, which it did not, that private
her death.[*] When the disputed Probate Order was issued
respondent is entitled to the payment of the questioned
on December 5, 1972, there had been no liquidation of the
legacy. Therefore, the Order of Execution of August 20,
community properties of PASTOR, SR. and his wife.
1980 and the subsequent implementing orders for the
(b) So also, as of the same date, there had been no prior
payment of QUEMADA's legacy, in alleged implementation
definitive determination of the assets of the estate of
of the dispositive part of the Probate Order of December 5,
PASTOR, SR. There was an inventory of his properties
1972, must fall for lack of basis.
presumably prepared by the special administrator, but it
(b) The ordered payment of legacy would be violative of
does not appear that it was ever the subject of a hearing or
the rule requiring prior liquidation of the estate of the
that it was judicially approved. The reconveyance or
deceased, i.e., the determination of the assets of the
recovery of properties allegedly owned but not in the
estate and payment of all debts and expenses, before
name of PASTOR, SR. was still being litigated in another
apportionment and distribution of the residue among the
court.
heirs and legatees. (Bernardo vs. Court of Appeals, 7 SCRA
(c) There was no appropriate determination, much less
367.)
payment, of the debts of the decedent and his estate.
(c) Neither has the estate tax been paid on the estate of
Indeed, it was only in the Probate Order of December 5,
PASTOR, SR. Payment therefore of the legacy to
1972 where the Probate Court ordered that —". . . a notice
QUEMADA would collide with the provision of the National
be issued and published pursuant to the provisions of Rule
Internal Revenue Code requiring payment of estate tax
86 of the Rules of Court, requiring all persons having
before delivery to any beneficiary of his distributive share
money claims against the decedent to file them in the
of the estate (Section 107[c]).
office of the Branch Clerk of this Court."
(d) The assailed order of execution was unauthorized,
(d) Nor had the estate tax been determined and paid, or at
having been issued purportedly under Rule 88, Section 6
least provided for, as of December 5, 1972.
of the Rules of Court which reads:"Sec. 6. Court to fix
(e) The net assets of the estate not having been
contributive shares where devisees, legatees, or heirs
determined, the legitime of the forced heirs in concrete
have been in possession.— Where devisees, legatees, or
figures could not be ascertained.
heirs have entered into possession of portions of the
(f) All the foregoing deficiencies considered, it was not
estate before the debts and expenses have been settled
possible to determine whether the legacy of QUEMADA—a
and paid, and have become liable to contribute for the
fixed share in a specific property rather than an aliquot part
payment of such debts and expenses, the court having
of the entire net estate of the deceased - would produce
jurisdiction of the estate may, by order for that purpose,
an impairment of the legitime of the compulsory heirs.
after hearing, settle the mount of their several liabilities,
(g) Finally, there actually was no determination of the
and order how much and in what manner each person
intrinsic validity of the will in other respects. It was
shall contribute, and may issue execution as circumstances
obviously for this reason that as late as March 5, 1980 -
require."
more than 7 years after the Probate Order was issued - the
The above provision clearly authorizes execution to
Probate Court scheduled on March 25, 1980 a hearing on
enforce payment of debts of estate. A legacy is not a debt
the intrinsic validity of the will.
of the estate; indeed, legatees are among those against

whom execution is authorized to be issued.". . . there is
3. Propriety of Certiorari -
merit in the petitioners' contention that the probate court

generally cannot issue a writ of execution. It is not
Private respondent challenges the propriety of certiorari as
supposed to issue a writ of execution because its orders
a means to assail the validity of the disputed Order of
usually refer to the adjudication of claims against the
execution. He contends that the error, if any, is one of
estate which the executor or administrator may satisfy
judgment, not jurisdiction, and properly correctible only by
without the necessity of resorting to a writ of execution.
appeal, not certiorari.
The probate court, as such, does not render any judgment
Under the circumstances of the case at bar, the challenge
enforceable by execution.


"The circumstances that the Rules of Court expressly effects of the execution order. Under the circumstances, recourse
specifies that the probate court may issue execution (a) to to certiorari was the feasible remedy.
satisfy (debts of the estate out of) the contributive shares WHEREFORE, the decision of the Court of Appeals in CA-G.R. No
of devisees, legatees and heirs in possession of the SP-11373-R is reversed. The Order of execution issued by the
decedent's assets (Sec. 6, Rule 88), (b) to enforce payment probate Court dated August 20, 1980, as well as all the Orders
of the expenses of partition (Sec. 3, Rule 90), and (c) to issued subsequent thereto in alleged implementation of the
satisfy the costs when a person is cited for examination in Probate Order dated December 5, 1972, particularly the Orders
probate proceedings (Sec. 13, Rule 142) may mean, under dated November 11, 1980 and December 17, 1980, are hereby set
the rule of inclusion unius est exclusion alterius, that those aside; and this case is remanded to the appropriate Regional Trial
are the only instances when it can issue a writ of Court for proper proceedings, subject to the judgment to be
execution. (Vda. de Valera vs. Ofilada, 59 SCRA 96, 108.) rendered in Civil Case No. 274-R.
(d) It is within a court's competence to order, the execution SO ORDERED.
of a final judgment; but to order the execution of a final Teehankee (Chairman), Melencio-Herrera, Vasquez, and Relova,
order (which is not even meant to be executed) by reading JJ., concur.
into it terms that are not there and in utter disregard of Gutierrez, Jr., J., took no part.
existing rules and law, is manifest grave abuse of
discretion tantamount to lack of jurisdiction. Consequently,

the rule that certiorari may not be invoked to defeat the 55 Nepomuceno v. CA (1985) 139 SCRA 206
right of a prevailing party to the execution of a valid and 223 Phil. 418
final judgment, is inapplicable. For when an order of
execution is issued with grave abuse of discretion or is at
variance with the judgment sought to be enforced (PVTA
vs. Honorable Gonzales, 92 SCRA 172), certiorari will lie to
FIRST DIVISION
abate the order of execution.
(e) Aside from the propriety of resorting to certiorari to [ G.R. No. 62952, October 09, 1985 ]
assail an order of execution which varies the terms of the
judgment sought to be executed or does not find support SOFIA J. NEPOMUCENO, PETITIONER, VS. THE
in the dispositive part of the latter, there are circumstances HONORABLE COURT OF APPEALS, RUFINA GOMEZ,
OSCAR JUGO AND CARMELITA JUGO, RESPONDENTS.
in the instant case which justify the remedy applied for.

Petitioner MA. ELENA ACHAVAL DE PASTOR, wife of PASTOR, JR.,
is the holder in her own right of three mining claims which are one
D E C I S I O N
of the objects of conflicting claims of ownership. She is not an heir
of PASTOR, SR. and was not a party to the probate proceedings.
Therefore, she could not appeal from the Order of execution GUTIERREZ, JR., J.:
issued by the Probate Court. On the other hand, after the issuance
of the execution order, the urgency of the relief she and her This is a petition for certiorari to set aside that portion of the
co-petitioner husband seek in the petition for certiorari militates decision of the respondent Court of Appeals (now Intermediate
against requiring her to go through the cumbersome procedure of Appellate Court) dated June 3, 1982, as amended by the
asking for leave to intervene in the probate proceedings to enable resolution dated August 10, 1982, declaring as null and void the
her, if leave is granted, to appeal from the challenged order of devise in favor of the petitioner and the resolution dated
execution which has ordered the immediate transfer and/or December 28, 1982 denying petitioner's motion for
garnishment of the royalties derived from mineral properties of reconsideration.
which she is the duly registered owner and/or grantee together
with her husband. She could not have intervened before the Martin Jugo died on July 16, 1974 in Malabon, Rizal. He left a last
issuance of the assailed orders because she had no valid ground Will and Testament duly signed by him at the end of the Will on
to intervene. The matter of ownership over the properties subject page three and on the left margin of pages 1, 2 and 4 thereof in
of the execution was then still being litigated in another court in a the presence of Celestina Alejandro, Myrna C. Cortez, and
reconveyance suit filed by the special administrator of the estate Leandro Leaño, who in turn, affixed their signatures below the
of PASTOR, SR. attestation clause and on the left margin of pages 1, 2 and 4 of the
Likewise, at the time petitioner PASTOR, JR. filed the petition for Will in the presence of the testator and of each other and the
certiorari with the Court of Appeals, appeal was not available to Notary Public. The Will was acknowledged before the Notary
him since his motion for reconsideration of the execution order Public Romeo Escareal by the testator and his three attesting
was still pending resolution by the Probate Court. But in the face of witnesses.
actual garnishment of their major source of income, petitioners
could no longer wait for the resolution of their motion for In the said Will, the testator named and appointed herein
reconsideration. They needed prompt relief from the injurious



petitioner Sofia J. Nepomuceno as his sole and only executor of 739 in relation with Article 1028 of the Civil Code of the
his estate. It is clearly stated in the Will that the testator was Philippines. The dispositive portion of the decision reads:
legally married to a certain Rufina Gomez by whom he had two "WHEREFORE, the decision a quo is hereby set aside, the will in
legitimate children, Oscar and Carmelita, but since 1952, he had question declared valid except the devise in favor of the appellant
been estranged from his lawfully wedded wife and had been living which is declared null and void. The properties so devised are
with petitioner as husband and wife. In fact, on December 5, 1952, instead passed on in intestacy to the appellant in equal shares,
the testator Martin Jugo and the petitioner herein, Sofia J. without pronouncement as to costs."On June 15, 1982, oppositors
Nepomuceno were married in Victoria, Tarlac before the Justice of Rufina Gomez and her children filed a "Motion for Correction of
the Peace. The testator devised to his forced heirs, namely, his Clerical Error" praying that the word "appellant" in the last
legal wife Rufina Gomez and his children Oscar and Carmelita his sentence of the dispositive portion of the decision be changed to
entire estate and the free portion thereof to herein petitioner. The "appellees" so as to read: "The properties so devised are instead
Will reads in part: passed on intestacy to the appellees in equal shares, without
"Art. III. That I have the following legal heirs, namely: my pronouncement as to costs." The motion was granted by the
aforementioned legal wife, Rufina Gomez, and our son, Oscar, and respondent court on August 10, 1982.
daughter Carmelita, both surnamed Jugo, whom I declare and
admit to be legally and properly entitled to inherit from me; that On August 23, 1982, the petitioner filed a motion for
while have been estranged from my above-named wife for so reconsideration. This was denied by the respondent court in a
many years, I cannot deny that I was legally married to her or that resolution dated December 28, 1982.
we have been separated up to the present for reasons and
justifications known fully well by them; The main issue raised by the petitioner is whether or not the
respondent court acted in excess of its jurisdiction when after
"Art. IV. That since 1952, I have been living, as man and wife, with declaring the last Will and Testament of the deceased Martin Jugo
one Sofia J. Nepomuceno, whom I declare and avow to be entitled validly drawn, it went on to pass upon the intrinsic validity of the
to my love and affection, for all the things which she has done for testamentary provision in favor of herein petitioner.
me, now and in the past; that while Sofia J. Nepomuceno has with
my full knowledge and consent, did comport and represent myself The petitioner submits that the validity of the testamentary
as her own husband, in truth and in fact, as well as in the eyes of provision in her favor cannot be passed upon and decided in the
the law, I could not bind her to me in the holy bonds of matrimony probate proceedings but in some other proceedings because the
because of my aforementioned previous marriage;"On August 21, only purpose of the probate of a Will is to establish conclusively as
1974, the petitioner filed a petition for the probate of the last Will against everyone that a Will was executed with the formalities
and Testament of the deceased Martin Jugo in the Court of First required by law and that the testator has the mental capacity to
Instance of Rizal, Branch XXXIV, Caloocan City and asked for the execute the same. The petitioner further contends that even if the
issuance to her of letters testamentary. provisions of paragraph 1 of Article 739 of the Civil Code of the
Philippines were applicable, the declaration of its nullity could only
On May 13, 1975, the legal wife of the testator, Rufina Gomez and be made by the proper court in a separate action brought by the
her children filed an opposition alleging inter alia that the legal wife for the specific purpose of obtaining a declaration of the
execution of the Will was procured by undue and improper nullity of the testamentary provision in the Will in favor of the
influence on the part of the petitioner; that at the time of the person with whom the testator was allegedly guilty of adultery or
execution of the Will, the testator was already very sick and that concubinage.
petitioner having admitted her living in concubinage with the
testator, she is wanting in integrity and thus letters testamentary The respondents on the other hand contend that the fact that the
should not be issued to her. last Will and Testament itself expressly admits indubitably on its
face the meretricious relationship between the testator and the
On January 6, 1976, the lower court denied the probate of the Will petitioner and the fact that petitioner herself initiated the
on the ground that as the testator admitted in his Will to cohabiting presentation of evidence on her alleged ignorance of the true civil
with the petitioner from December 1952 until his death on July 16, status of the testator, which led private respondents to present
1974, the Will's admission to probate will be an idle exercise contrary evidence, merits the application of the doctrine
because on the face of the Will, the invalidity of its intrinsic enunciated in Nuguid v. Felix Nuguid, et al. (17 SCRA 449) and
provisions is evident. Felix Balanay, Jr. v. Hon. Antonio Martinez, et al (G.R. No. L-39247,
June 27, 1975). Respondents also submit that the admission of the
The petitioner appealed to the respondent-appellate court. testator of the illicit relationship between him and the petitioner
put in issue the legality of the devise.
On June 2, 1982, the respondent court set aside the decision of
the Court of First Instance of Rizal denying the probate of the Will. We agree with the respondents.
The respondent court declared the Will to be valid except that the
devise in favor of the petitioner is null and void pursuant to Article The respondent court acted within its jurisdiction when after



declaring the Will to be validly drawn, it went on to pass upon the Balanay, Jr. v. Martinez (64 SCRA 452) passed upon the validity of
intrinsic validity of the Will and declared the devise in favor of the its intrinsic provisions.
petitioner null and void.
Invoking "practical considerations", we stated:
The general rule is that in probate proceedings, the court's area of "The basic issue is whether the probate court erred in passing
inquiry is limited to an examination and resolution of the extrinsic upon the intrinsic validity of the will, before ruling on its allowance
validity of the Will. The rule is expressed thus: or formal validity, and in declaring it void.
xxx xxx xxx
"We are of the opinion that in view of certain unusual provisions of
"x x x It is elementary that a probate decree finally and definitively the will, which are of dubious legality, and because of the motion
settles all questions concerning capacity of the testator and the to withdraw the petition for probate (which the lower court
proper execution and witnessing of his last Will and testament, assumed to have been filed with the petitioner's authorization), the
irrespective of whether its provisions are valid and enforceable or trial court acted correctly in passing upon the will's intrinsic validity
otherwise." (Fernandez v. Dimagiba, 21 SCRA 428) even before its formal validity had been established. The probate
of a will might become an idle ceremony if on its face it appears to
"The petition below being for the probate of a Will, the court's area be intrinsically void. Where practical considerations demand that
of inquiry is limited to the extrinsic validity thereof. The testator's the intrinsic validity of the will be passed upon, even before it is
testamentary capacity and the compliance with the formal probated, the court should meet the issue (Nuguid v. Nuguid, 64
requisites or solemnities prescribed by law are the only questions O.G. 1527, 17 SCRA 449. Compare with Sumilang v. Ramagosa,
presented for the resolution of the court. Any inquiry into the L-23135, December 26, 1967, 21 SCRA 1369; Cacho v. Udan,
intrinsic validity or efficacy of the provisions of the will or the L-19996, April 30, 1965, 13 SCRA 693)."There appears to be no
legality of any devise or legacy is premature. more dispute at this time over the extrinsic validity of the Will.
Both parties are agreed that the Will of Martin Jugo was executed
xxx xxx xxx with all the formalities required by law and that the testator had
the mental capacity to execute his Will. The petitioner states that
"True or not, the alleged sale is no ground for the dismissal of the she completely agrees with the respondent court when in
petition for probate. Probate is one thing; the validity of the resolving the question of whether or not the probate court
testamentary provisions is another. The first decides the execution correctly denied the probate of Martin Jugo's last Will and
of the document and the testamentary capacity of the testator; the Testament, it ruled:
second relates to descent and distribution." (Sumilang v. "This being so, the will is declared validly drawn." (Page 4,
Ramagosa, 21 SCRA 1369) Decision, Annex A of Petition.)On the other hand the respondents
pray for the affirmance of the Court of Appeals' decision in toto.
xxx xxx xxx
The only issue, therefore, is the jurisdiction of the respondent
"To establish conclusively as against everyone, and once for all, court to declare the testamentary provision in favor of the
the facts that a will was executed with the formalities required by petitioner as null and void.
law and that the testator was in a condition to make a will, is the
only purpose of the proceedings under the new code for the We sustain the respondent court's jurisdiction. As stated in Nuguid
probate of a will. (Sec. 625). The judgment in such proceedings v. Nuguid, (supra):
determines and can determine nothing more. In them the court "We pause to reflect. If the case were to be remanded for probate
has no power to pass upon the validity of any provisions made in of the will, nothing will be gained. On the contrary, this litigation
the will. It can not decide, for example, that a certain legacy is void will be protracted. And for aught that appears in the record, in the
and another one valid. x x x" (Castañeda v. Alemany, 3 Phil. event of probate or if the court rejects the will, probability exists
426)The rule, however, is not inflexible and absolute. Given that the case will come up once again before us on the same issue
exceptional circumstances, the probate court is not powerless to of the intrinsic validity or nullity of the will. Result: waste of time,
do what the situation constrains it to do and pass upon certain effort, expense, plus added anxiety. These are the practical
provisions of the Will. considerations that induce us to a belief that we might as well
meet head-on the issue of the validity of the provisions of the will
In Nuguid v. Nuguid (17 SCRA 449) cited by the trial court, the in question. (Section 2, Rule 1, Rules of Court. Case, et al. v. Jugo,
testator instituted the petitioner as universal heir and completely et al., 77 Phil. 517, 522). After all, there exists a justiciable
preterited her surviving forced heirs. A will of this nature, no controversy crying for solution."We see no useful purpose that
matter how valid it may appear extrinsically, would be null and would be served if we remand the nullified provision to the proper
void. Separate or later proceedings to determine the intrinsic court in a separate action for that purpose simply because, in the
validity of the testamentary provisions would be superfluous. probate of a will, the court does not ordinarily look into the intrinsic
validity of its provisions.
Even before establishing the formal validity of the will, the Court in



Article 739 of the Civil Code provides: he had lived with as man and wife, was already married was an
"The following donations shall be void: important and specific issue brought by the parties before the trial
(1) Those made between persons who were guilty of adultery or court, and passed upon by the Court of Appeals.
concubinage at the time of the donation;
"Instead of limiting herself to proving the extrinsic validity of the
(2) Those made between persons found guilty of the same will, it was petitioner who opted to present evidence on her
criminal offense, in consideration thereof; alleged good faith in marrying the testator. (Testimony of
Petitioner, TSN of August 1, 1982, pp. 56-57 and pp. 62-64).
(3) Those made to a public officer or his wife, descendants and
ascendants, by reason of his office."In the case referred to in No. 1, "Private respondents, naturally, presented evidence that would
the action for declaration of nullity may be brought by the spouse refute the testimony of petitioner on the point.
of the donor or donee; and the guilt of the donor and donee may
be proved by preponderance of evidence in the same "Sebastian Jugo, younger brother of the deceased testator,
action.Article 1028 of the Civil Code provides: testified at length on the meretricious relationship of his brother
"The prohibitions mentioned in Article 739, concerning donations and petitioner. (TSN of August 18, 1975).
inter vivos shall apply to testamentary provisions."In Article III of
the disputed Will, executed on August 15, 1968, or almost six years "Clearly, the good faith of petitioner was by option of the parties
before the testator's death on July 16, 1974, Martin Jugo stated that made a decisive issue right at the inception of the case.
respondent Rufina Gomez was his legal wife from whom he had
been estranged "for so many years." He also declared that "Confronted by the situation, the trial court had to make a ruling on
respondents Carmelita Jugo and Oscar Jugo were his legitimate the question.
children. In Article IV, he stated that he had been living as man
and wife with the petitioner since 1952. Testator Jugo declared "When the court a quo held that the testator Martin Jugo and
that the petitioner was entitled to his love and affection. He stated petitioner 'were deemed guilty of adultery or concubinage', it was
that Nepomuceno represented Jugo as her own husband but "in a finding that petitioner was not the innocent woman she
truth and in fact, as well as in the eyes of the law, I could not bind pretended to be."
her to me in the holy bonds of matrimony because of my
aforementioned previous marriage." xxx xxx xxx
"3' If a review of the evidence must be made nonetheless, then
There is no question from the records about the fact of a prior private respondents respectfully offer the following analysis:
existing marriage when Martin Jugo executed his Will. There is "FIRST: The secrecy of the marriage of petitioner with the
also no dispute that the petitioner and Mr. Jugo lived together in deceased testator in a town in Tarlac where neither she
an ostensible marital relationship for 22 years until his death. nor the testator ever resided. If there was nothing to
hide from, why the concealment? Of course, it maybe
It is also a fact that on December 2, 1952, Martin Jugo and Sofia J. argued that the marriage of the deceased with private
Nepomuceno contracted a marriage before the Justice of the respondent Rufina Gomez was likewise done in
Peace of Victoria, Tarlac. The man was then 51 years old while the secrecy. But it should be remembered that Rufina
woman was 48. Nepomuceno now contends that she acted in Gomez was already in the family way at that time and it
good faith for 22 years in the belief that she was legally married to would seem that the parents of Martin Jugo were not in
the testator. favor of the marriage so much so that an action in court
was brought concerning the marriage. (Testimony of
The records do not sustain a finding of innocence or good faith. Sebastian Jugo, TSN of August 18, 1975, pp. 29-30)
As argued by the private respondents:
"First. The last will and testament itself expressly admits "SECOND: Petitioner was a sweetheart of the deceased testator
indubitably on its face the meretricious relationship between the when they were still both single. That would be in 1922
testator and petitioner, the devisee. as Martin Jugo married respondent Rufina Gomez on
November 29, 1923 (Exh. 3). Petitioner married the
"Second. Petitioner herself initiated the presentation of evidence testator only on December 5, 1952. There was a space
on her alleged ignorance of the true civil status of the testator, of about 30 years in-between. During those 30 years,
which led private respondents to present contrary evidence. could it be believed that she did not even wonder why
Martin Jugo did not marry her nor contact her anymore
"In short, the parties themselves dueled on the intrinsic validity of after November, 1923 - facts that should impel her to
the legacy given in the will to petitioner by the deceased testator ask her groom before she married him in secrecy,
at the start of the proceedings. especially so when she was already about 50 years old
at the time of marriage.
"Whether or not petitioner knew that testator Martin Jugo, the man


"THIRD: The fact that petitioner broke off from Martin Jugo in bother at all to ask the man she was going to marry whether or not
1923 is by itself conclusive demonstration that she he was already married to another, knowing that her groom had
knew that the man she had openly lived for 22 years as children. It would be a story that would strain human credulity to
man and wife was a married man with already two the limit if petitioner did not know that Martin Jugo was already a
children. married man in view of the irrefutable fact that it was precisely his
marriage to respondent Rufina Gomez that led petitioner to break
"FOURTH: Having admitted that she knew the children of off with the deceased during their younger years."
respondent Rufina Gomez, is it possible that she would Moreover, the prohibition in Article 739 of the Civil Code is against
not have asked Martin Jugo whether or not they were the making of a donation between persons who are living in
his illegitimate or legitimate children and by whom? adultery or concubinage. It is the donation which becomes void.
That is un-Filipino. The giver cannot give even assuming that the recipient may
receive. The very wordings of the Will invalidate the legacy
"FIFTH: Having often gone to Pasig to the residence of the because the testator admitted he was disposing the properties to
parents of the deceased testator, is it possible that she a person with whom he had been living in concubinage.
would not have known that the mother of private
respondent Oscar Jugo and Carmelita Jugo was WHEREFORE, the petition is DISMISSED for lack of merit. The
respondent Rufina Gomez, considering that the houses decision of the Court of Appeals, now Intermediate Appellate
of the parents of Martin Jugo (where he had lived for Court, is AFFIRMED. No costs.
many years) and that of respondent Rufina Gomez
were just a few meters away? SO ORDERED.

"Such pretentions of petitioner Sofia Nepomuceno are Teehankee, (Chairman), Melencio-Herrera, Plana, Relova, De la
unbelievable. They are, to say the least, inherently improbable, for Fuente, and Patajo, JJ., concur.
they are against the experience in common life and the ordinary
instincts and promptings of human nature that a woman would not

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Compiled by Rehne Gibb N. Larena | JD-WT-3 | AY 2019-20 | University of San Carlos

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TABLE OF CONTENTS V. INCORPORATION OF DOCUMENT BY REFERENCE - Art. 827

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Costs against petitioners. hereinbelow, shall be inherited and acknowledged by the children

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plaintiﬀ-appellant must institute separate proceedings to re-open rights are transmitted from the moment of death of the decedent[10]

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non-performance of the said obligation is thus with the sanction of

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dismissing the case for lack of jurisdiction.[17] The Court of Appeals her sole and legal heir. It was only when said deed was questioned

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those who would succeed in the absence of Alfredo.[10] SO ORDERED.

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On January 20, 1944, Melecia Jimenez sold said 436

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