Succession a petition for the probate of the alleged will and

Compilation of Cases testament dated March 9, 1963 (Exhibit H) and

codicil dated April 18, 1963 (Exhibit L) of the late
SOLEMNITIES OF WILL Eugenia Danila who died on May 21, 1966. The
petitioner prayed that after due notice and proper
19. Vda. de Ramos vs. CA hearing, the alleged will and codicil be probates
20. Testate Estate of the Late Alipio Abada vs. Abaja and allowed and that she or any other person be
21. In re: Will of Andrada appointed as administrator of the testatrix's estate.
22. Cargo vs. Cargo She also prayed that in case no opposition thereto
23. Taboada vs. Rosal be interposed and the value of the estate be less
24. Andalis vs. Pulgueras than P10,000.00, said estate be summarily settled
25. Balonan vs. Abellana in accordance with the Rules.
26. Azuela vs. CA
27. Cruz vs. Villasor Buenaventura and Marcelina (Martina) both
28. Alvarado vs. Gaviola surnamed Guerra filed an opposition on July 18,
29. Lopez vs. Lopez 1966 and an amended opposition on August 19,
30. Gil vs. Murciano 1967, to the petition alleging among others that
31. Sps. Ajero vs. CA they are the legally adopted son and daughter of
32. Roxas vs. De Jesus the late spouses Florentino Guerra and Eugenia
33. Rodelas vs. Aranza Danila (Exhibit 1); that the purported will and
34. Labrador vs. CA codicil subject of the petition (Exhibits H and L)
35. Kalaw vs. Relova were procured through fraud and undue influence;
36. Vda. de Perez vs. Tolete that the formalities requited by law for the
37. Gonzales vs. CA execution of a will and codicil have not been
38. Vda. de Roxas vs. Roxas complied with as the same were not properly
39. Vda. de Arroyo vs. El Beaterio del Santissimo attested to or executed and not expressing the free
Rosario de Molo will and deed of the purported testatrix; that the
late Eugenia Danila had already executed on
November 5, 1951 her last will and testament
(Exhibit 3) which was duly probated (Exhibit 4) and
G.R. No. L-40804 January 31, 1978 not revoked or annulled during the lifetime of the
testatrix, and that the petitioner is not competent
ROSARIO FELICIANO VDA. DE RAMOS, MIGUEL DANILA, and qualified to act as administration of the estate.
RAYMUNDO A. DANILA, CONSOLACION SANTOS, MIGUEL G.
DANILA, AMOR DANILA, MOISES MARTINEZ, MIGUELA On November 4, 1968, the petitioner and the
GAVINO, MELITON NISTA, PRIMITIVA NISTA, HEIRS OF oppositors, assisted by their respective counsels,
DANIEL NISTA, MOISES NISTA, DOMINGO NISTA and entered into a Compromise Agreement with the
ADELAIDA NISTA, petitioners, following terms and conditions, thus:
vs.
COURT OF APPEALS, MARCELINA (MARTINA) GUERRA and 1. That oppositors Buenaventura Guerra and
THE HEIRS OF BUENAVENTURA GUERRA, respondents. Marcelina (Martina) Guerra are the legally adopted
son and daughter, respectively, of the deceased
Ernesto C. Hidalgo for petitioners. spouses, Florentino Guerra and Eugenia Manila;

Romulo S. Brion & Florentino M. Poonin for private
respondents.
GUERRERO, J.:
Appeal by way of certiorari of the decision 1 of the Court of
Appeals in CA-G.R. No. 49915-R, entitled "Adelaida Nista
Petitioner-appellee, versus Buenaventura Guerra, et al.,
Oppositors -Appellants, " denying and disallowing the
probate of the second last will and codicil of the late
Eugenia Danila previously probated by the Court of First
Instance of Laguna Branch III at San Pablo City.
The facts are rotated in the appealed decision. the
pertinent portions of which state:
It appears that on June 2, 1966, Adelaida Nista
who claimed to be one of the instituted heirs, filed
2. That Florentino Guerra pre-deceased Eugenia
Danila that Eugenia Danila died on May 21, 1966,
at San Pablo City, but during her lifetime, she had
already sold, donated or disposed of all her
properties, some of which to Marcelina Martina
Guerra, as indicated and confirmed in paragraph
13 of the Complaint in Civil Case No. SP620,
entitled Marcelina Guerra versus Adelaida Nista, et
al., and Which We hereby 'likewise admit and
confirm;
3. That, however, with respect to the parcel of
riceland covered by TCT No. T-5559 of the Register
of Deeds of San Pablo City, which oppositors
believe to be the estate left and undisposed of at
the time of the death of the owner thereof, Eugenia
Danila it now appears that there is a Deed of
Donation covering the same together with another
1
parcel of coconut land situated at Barrio San
Ignacio, San Pablo City, with an area of 19,905
sq.m., and covered by Tax Declaration No. 31286,
executed by the late Eugenia Danila in favor of
Adelaida Nista, as per Doc. No. 406, Page No. 83,
Series of 1966 under Notarial Register III of Notary
Public Pio Aquino of San Pablo city;
4. That inasmuch as the above-mentioned parcel
of coconut and has been earlier donated inter
vivos and validly conveyed on November 15, 1965
by the late Eugenia Danila to Marcelina (Martina)
Guerra as shown by Doc. No. 237, Page No. 49,
Series of 1965, under Notarial Register XV of
Notary Public Atty. Romulo S. Brion of San Pablo
City, the inclusion of said parcel in the subsequent
donation to Adelaida Nista is admittedly
considered a mistake and of no force and effect
and will in no way prejudice the ownership and
right of Marcelina Martina Guerra over the said
parcel; that as a matter of fact Whatever rights and
interests Adelaida Nista has or may still have
thereon are already considered waived and
renounced in favor of Marcelina Martina Guerra;
5. That in view of the fact that the riceland
mentioned in paragraph 3 of the foregoing appears
to have already been disposed of by Eugenia
Danila in favor of petitioner Adelaida Nista which
the parties hereto do not now contest, there is
therefore no more estate left by the said deceased
Eugenia Danila to he disposed of by the will sought
to be probated in this proceedings; that
consequently, and for the sake of peace and
harmony money among the relations and kins and
adopted children of the deceased Eugenia Danila
and with the further aim of settling differences
among themselves, the will and codicil of Eugenia
Danila submitted to this Honorable Court by the
petitioner for probate, are considered abrogated
and set aside;
6. That as the late Eugenia Danila has incurred
debts to private persons during her lifetime, which
in addition to the burial and incidental expenses
amounts to SIX THOUSAND EIGHT HUNDRED
PESOS (P6,800.00) her adopted daughter,
Marcelina (Martina) Guerra is now determined to
settle the same, but herein petitioner Adelaida
Nista hereby agrees to contribute to Marcelina
(Martina) Guerra for the settlement of the said
indebtedness in the amount of THREE THOUSAND
FOUR HUNDRED PESOS (P3,400.00), Philippine
Currency, the same to be delivered by Adelaida
Nista to Marcelina (Martina) Guerra at the latter's
residence at Rizal Avenue, San Pablo City, on or
about February 28, 1969;
7. That should there be any other property of the
deceased Eugenia Danila that may later on be
discovered to be undisposed of as yet by Eugenia
Danila during her lifetime, the same should be
considered as exclusive property of her adopted
children and heirs, Buenaventura Guerra and
Marcelina (Martina) Guerra and any right of the
petitioner and signatories hereto, with respect to
said property or properties, shall be deemed
waived and renounced in favor of said
Buenaventura and Marcelina (Martina) Guerra;
and
8. That with the exception of the foregoing
agreement, parties hereto waived and renounce
further claim against each other, and the above-
entitled case. (Exh. 6)
This Agreement was approved by the lower court in
a judgment readings as follows:
WHEREFORE, said compromise agreement, being
not contrary to public policy, law and moral, the
same is hereby approved and judgment is hereby
rendered in accordance with the terms and
conditions set forth in the above- quoted
compromise agreement, which is hereby made an
integral part of the dispositive portion of this
decision, and the parties are strictly enjoined to
comply with the same. (Exh. 7)
On November 16, 1968, Rosario de Ramos, Miguel
Danila Felix Danila Miguel Gavino Amor Danila
Consolacion Santos and Miguel Danila son of the
late Fortunato Danila filed a motion for leave to
intervene as co-petitioners alleging that being
instituted heirs or devisees, they have rights and
interests to protect in the estate of the late
Eugenia Danila They also filed a reply partly
admitting and denying the material allegations in
the opposition to the petition and alleging among
other things, that oppositors repudiated their
institution as heirs and executors when they failed
to cause the recording in the Register of Deeds of
San Pablo City the will and testament dated
November 5, 1951 (Exhibit 3) in accordance with
the Rules and committed acts of ingratitude when
they abandoned the testatrix and denied her
support after they managed, through fraud and
undue influence, to secure the schedule of
partition dated January 15, 1962. The Intervenors
prayed for the probate and/or allowance of the will
and codicil (Exhibits H and L), respectively and the
appointment of any of them in as administrator of
said estate.
On December 6, 1968, the intervenors also filed a
motion for new trial and/or re-hearing and/or relief
from judgment and to set aside the judgment
based on compromise dated November 5, 1968.
The oppositors interposed an opposition to the
motion to which the intervenors filed their reply.
The lower court resolved the motions in an order
the dispositive portion reading, thus:
2
 FOR ALL THE FOREGOING the Court hereby makes
the following dispositions —
(1) Movants Rosario de Ramos, Miguel C. Danila
Miguela Gavino Amor Danila Consolacion Santos,
Miguel A. Danila and Raymundo Danila are allowed
and admitted to intervene to this proceeding as
Party Petitioners; and likewise admitted in their
reply to the amended opposition of November 11,
1968;
(2) The compromise agreement dated October 15,
1968 by and between Petitioner Adelaida Nista
and oppositors Buenaventura Guerra and
Marcelina Guerra Martina is disapproved, except
as regards their respective lawful rights in the
subject estate; and, accordingly, the judgment on
compromise rendered by this Court on November
5, 1968 is reconsidered and set aside; and
(3) The original Petition and amended opposition
to probate of the alleged will and codicil stand.
xxx xxx xxx
The lower court also denied the motion for the
appointment of a special administrator filed by the
intervenors.
xxx xxx xxx
A motion for reconsideration of the foregoing order
was filed by the intervenors co-petitioners but the
motion was denied.
xxx xxx xxx
On February 9, 1971, a motion for the substitution
of Irene, Crispina, Cristina Casiano, Edilberto
Felisa, Guerra in place of their father, the oppositor
Buenaventura Guerra who died on January 23,
1971, was filed and granted by the lower court.
After trial on the merits, the lower court rendered its
decision dated July 6, 1971 allowing the probate of the wilt
In that decision, although two of the attesting witness Odon
Sarmiento and Rosendo Paz, testified that they did not see
the testatrix Eugenia Danila sign the will but that the same
was already signed by her when they affixed their own
signatures thereon, the trial court gave more weight and
ment to the .'straight-forward and candid" testimony of Atty.
Ricardo Barcenas, the Notary Public who assisted in the
execution of the wilt that the testatrix and the three (3)
instrumental witnesses signed the will in the presence of
each other, and that with respect to the codicil the same
manner was likewise observed as corroborated to by the
testimony of another lawyer, Atty. Manuel Alvero who was
also present during the execution of the codicil.
The dispositive portion of the decision reads:
WHEREFORE, it appearing that the late Eugenia
Danila had testamentary capacity when she
executed the will, Exh. H., and the codicil Exh. L,
and that said will and codicil were duly signed by
her and the three attesting witnesses and
acknowledged before a Notary Public in
accordance with the formalities prescribed by law,
the said will and codicil are hereby declared
probated. No evidence having been adduced
regarding the qualification and fitness of any of the
intervenors- co-petitioners to act as executors, the
appointment of executors of the will and codicil is
held pending until after due hearing on the matter.
SO ORDERED.
Oppositors Marcelina Guam and the heirs of Buenaventura
Guam appealed the foregoing decision to the Court of
Appeals The latter court, in its derision dated May 12, 1975
ruled that the lower court acted correctly in setting aside its
judgment approving the Compromise Agreement and in
allowing the intervenor petitioners to participate in the
instant probate proceedings; however, it disallowed the
probate of the will on the that the evidence failed to
establish that the testatrix Eugenia Danila signed her will in
the presence of the instrumental witness in accordance
with Article 805 of the Civil Code, as testified to by the two
surviving instrumental witnesses.
In this present appeal petitioners vigorously insists on
constitutional grounds the nullity of the decision of
respondent court but We deem it needless to consider the
same as it is not necessary in resolving this appeal on the
following assigned errors:
(A) THE COURT OF APPEALS ERRED GRAVELY IN
NOT HAVING GIVEN WEIGHT TO THE
MANIFESTATION CLAUSES IN THE TESTAMENT
AND CODICIL ANNEX B (PETITION) AND INSTEAD IT
GAVE CREDENCE TO THE TESTIMONIES OR BIASED
WITNESSES OVER THEIR OWN ATTESTATION
CLAUSES AND THE TESTIMONIAL EVIDENCE AND
NOTARIAL ACKNOWLEDGEMENT OF THE NOTARY
PUBLIC; AND
(B) THAT THE COURT OF APPEALS ERRED IN
HAVING DENIED THE PROBATE OF THE WILL AND
CODICIL DESPITE CONVINCING EVIDENCE FOR
THEIR ALLOWANCE.
We reverse the judgment of the Court of Appeals and
restore the decision of the trial court allowing probate of
the will and codicil in question.
The main point in controversy here is whether or not the
last testament and its accompanying codicil were executed
in accordance with the formalities of the law, considering
the complicated circumstances that two of the attesting
witnesses testified against their due execution while other
non-subscribing witnesses testified to the contrary.
3
Petitioners argue that the attestation clauses of the win
and codicil which were signed by the instrumental
witnesses are admissions of due execution of the deeds,
thus, preventing the said witnesses from prevaricating later
on by testifying against due execution. Petitioners further
maintain that it is error for respondent court to give
credence to the testimony of the biased witnesses as
against their own attestation to the fact of due execution
and over the testimonial account of the Notary Public who
was also present during the execution and before whom
right after, the deeds were acknowledged.
Private respondents, on the other hand reiterate in their
contention the declaration of the two surviving witnesses,
Odon Sarmiento and Rosendo Paz, that the win was not
signed by the testatrix before their presence, which is
strengthened by two photographic evidence showing only
the two witnesses in the act of signing, there being no
picture of the same occasion showing the testatrix signing
the will. Respondent court holds the view that where there
was an opportunity to take pictures it is not understandable
why pictures were taken of the witnesses and not of the
testatrix. It concludes that the absence of the latter's
picture to complete the evidence belies the testimony of
Atty. Barcenas that the testatrix and the witnesses did sign
the will and the codicil in the presence of each other.
The oppositors' argument is untenable. There is ample and
satisfactory evidence to convince us that the will and codicil
were executed in accordance with the formalities required
by law. It appears positively and convincingly that the
documents were prepared by a lawyer, Atty. Manuel Alvero
The execution of the same was evidently supervised by his
associate, Atty. Ricardo Barcenas and before whom the
deeds were also acknowledged. The solemnity surrounding
the execution of a will is attended by some intricacies not
usually within the comprehension of an ordinary layman.
The object is to close the door against bad faith and fraud,
to avoid substitution of the will and testament, and to
guarantee their truth and authenticity. 2 If there should be
any stress on the participation of lawyers in the execution
of a wig, other than an interested party, it cannot be less
than the exercise of their primary duty as members of the
Bar to uphold the lofty purpose of the law. There is no
showing that the above-named lawyers had been remiss in
their sworn duty. Consequently, respondent court failed to
consider the presumption of ty in the execution of the
questioned documents. There were no incidents brought to
the attention of the trial court to arouse suspicion of
anomaly. While the opposition alleged fraud and undue
influence, no evidence was presented to prove their
occurrence. There is no question that each and every page
of the will and codicil carry the authentic signatures of
Eugenia Danila and the three (3) attesting witnesses.
Similarly, the attestation claim far from being deficient,
were properly signed by the attesting witnesses. Neither is
it disputed that these witnesses took turns in signing the
will and codicil in the presence of each other and the
testatrix. Both instruments were duly acknowledged before
a Notary Public who was all the time present during the
execution.
The presumption of regularity can of course be overcome
by clear and convincing evidence to the contrary, but not
easily by the mere expediency of the negative testimony of
Odon Sarmiento and Rosendo Paz that they did not see the
testatrix sign the will. A negative testimony does not enjoy
equal standing with a positive assertion, and faced with the
convincing appearance of the will, such negative statement
must be examined with extra care. For in this regard —
It has also been held that the condition and
physical appearance of a questioned document
constitute a valuable factor which, if correctly
evaluated in the light of surrounding
circumstances, may help in determining whether it
is genuine or forged. Subscribing witnesses may
forget or exaggerating what they really know, saw,
heard or did; they may be biased and, therefore,
tell only half-truths to mislead the court or favor
one party to the prejudice of the others. This
cannot be said of the condition and Physical
appearance of the questioned document. Both,
albeit silent, will reveal the naked truth, hiding
nothing, forgetting nothing, and exaggerating
nothing. 3
Unlike other deeds, ordinary wills by necessity of law must
contain an attestation clause Which, significantly is a
separate memorandum or record of the facts surrounding
that the conduct of execution. Once signed by the attesting
witnesses, it that compliance with the indispensable legal
formalities had been observed. This Court had previously
hold that the attestation clause basically contracts the
pretense of undue ex execution which later on may be
made by the attesting witnesses. 4 In the attestation
clause, the witnesses do not merely attest to the signature
of the testatrix but also to the proper execution of the will,
and their signature following that of the testatrix show that
they have in fact at not only to the genuineness of the
testatrix's signature but also to the due execution of the will
as embodied in the attention clause. 5 By signing the wilt
the witnesses impliedly to the truth of the facts which admit
to probate, including the sufficiency of execution, the
capacity of the testatrix, the absence of undue influence,
and the like. 6
In this jurisdiction, all the attesting witness to a will if
available, must be called to prove the wilt Under this
circumstance, they become "forced witnesses" " and their
declaration derogatory to the probate of the will need not
bind the proponent hence, the latter may present other
proof of due exemption even if contrary to the testimony of
or all of the at, testing witness. 7 As a rule, if any or all of
the submitting witness testify against the due execution of
the will, or do not remember having attested to it, or are
otherwise of doubtful ability, the will may, nevertheless, be
allowed if the court is satisfied from the testimony of other
witness and from all the evidence presented that the will
was executed and attested in the manner by
law. 8 Accordingly, although the subscribing witnesses to a
contested will are the best witness in connection with its
due execution, to deserve full credit, their testimony must
4
be reasonable, and unbiased; if otherwise it may be
overcome by any competent evidence, direct or
circubstantial. 9
In the case at bar, the s bear a disparity in the quality of the
testimonies of Odon Sarmiento and Rosendo Paz on one
hand, and the Notary Public, Atty. Ricardo A. Barcenas, on
the other. The testimony of Odon Sarmiento was
contradicted by his own admission. Though his admission
to the effect that "when Eugenia Danila signed the
testament (he) and the two other attesting witnesses
Rosendo Paz and Calixto Azusada were present" (t.s.n.,
Feb. 12, 1970, p. 115) was made extrajudicially, it was not
squarely refuted when inquired upon during the trial.
With respect to the testimony of Rosendo Paz, it had been
refuted by the declaration of Atty. Ricardo A. Barcenas. The
records show that this attesting witness was fetched by
Felix Danila from his place of work in order to act as
witness to a wilt Rosendo Paz did not know what the
document he signed was all about. Although he performed
his function as an attesting witness, his participation was
rather passive. We do not expect, therefore, that his
testimony, "half-hearted" as that of Odon Sarmiento, be as
candid and complete as one proceeding from a keen mind
fully attentive to the details of the execution of the deeds.
Quite differently, Atty. Ricardo A. Barcenas, more than a
direct witness himself, was Purposely there to oversee the
accomplishment of the will and codicil. His testimony is an
account of what he actually heard and saw during the
conduct of his profession. There is no evidence to show
that this lawyer was motivated by any material interest to
take sides or that his statement is truth perverted.
It has been regarded that the function of the Notary Public
is, among others, to guard against any illegal or immoral
arrangements in the execution of a will. 10 In the absence of
any showing of self-interest that might possibly have
warped his judgment and twisted his declaration, the
intervention of a Notary Public, in his professional capacity,
in the execution of a will deserves grave
consideration. 11 An appraise of a lawyer's participation has
been succinctly stated by the Court in Fernandez v.
Tantoco, supra, this wise:
In weighing the testimony of the attesting
witnesses to a will, his statements of a competent
attorney, who has been charged with the
responsibility of seeing to the proper execution of
the instrument, is entitled to greater weight than
the testimony of a person casually called to
anticipate in the act, supposing of course that no
motive is revealed that should induce the attorney
to prevaricate. The reason is that the mind of the
attorney being conversant of the instrument, is
more likely to become fixed on details, and he is
more likely than other persons to retain those
incidents in his memory.
One final point, the absence of a photograph of the testator
Eugenia Danila in the act of signing her will. The fact that
the only pictures available are those which show the
Witnesses signing the will in the presence of the testatrix
and of each other does not belie the probability that the
testatrix also signed the will before the presence of the
witnesses. We must stress that the pictures are worthy only
of what they show and prove and not of what they did not
speak of including the events they failed to capture. The
probate of a will is a proceeding not embued with adverse
character, wherein courts should relax the rules on
evidence "to the end that nothing less than the best
evidence of which the matter is susceptible" should be
presented to the court before a reported will may be
probated or denied probate. 12
We find here that the failure to imprint in photographs all
the stages in the execution of the win does not serve any
persuasive effect nor have any evidentiary value to prove
that one vital and indispensable requisite has not been
acted on. Much less can it defeat, by any ordinary or special
reason, the presentation of other competent evidence
intended to confirm a fact otherwise existent but not
confirmed by the photographic evidence. The probate court
having satisfied itself that the win and codicil were
executed in accordance with the formalities required by
law, and there being no indication of abuse of discretion on
its part, We find no error committed or any exceptional
circumstance warranting the subsequent reversal of its
decision allowing the probate of the deeds in question.
WHEREFORE, the decision of respondent Court of Appeals
is hereby reversed in so far its it disallowed the probate of
the will and codicil. With costs against respondents.
SO ORDERED.
G.R. No. 147145 January 31, 2005
TESTATE ESTATE OF THE LATE ALIPIO ABADA, BELINDA
CAPONONG-NOBLE, petitioner,
vs.
ALIPIO ABAJA and NOEL ABELLAR, respondents.
DECISION
CARPIO, J.:
The Case
Before the Court is a petition for review1 assailing the
Decision2 of the Court of Appeals of 12 January 2001 in CA-
G.R. CV No. 47644. The Court of Appeals sustained the
Resolution3 of the Regional Trial Court of Kabankalan,
Negros Occidental, Branch 61 ("RTC-Kabankalan"),
admitting to probate the last will and testament of Alipio
Abada ("Abada").
The Antecedent Facts
Abada died sometime in May 1940.4 His widow Paula Toray
("Toray") died sometime in September 1943. Both died
without legitimate children.
5
On 13 September 1968, Alipio C. Abaja ("Alipio") filed with
the then Court of First Instance of Negros Occidental (now
RTC-Kabankalan) a petition,5 docketed as SP No. 070 (313-
8668), for the probate of the last will and testament ("will")
of Abada. Abada allegedly named as his testamentary heirs
his natural children Eulogio Abaja ("Eulogio") and Rosario
Cordova. Alipio is the son of Eulogio.
Nicanor Caponong ("Caponong") opposed the petition on
the ground that Abada left no will when he died in 1940.
Caponong further alleged that the will, if Abada really
executed it, should be disallowed for the following reasons:
(1) it was not executed and attested as required by law; (2)
it was not intended as the last will of the testator; and (3) it
was procured by undue and improper pressure and
influence on the part of the beneficiaries. Citing the same
grounds invoked by Caponong, the alleged intestate heirs
of Abada, namely, Joel, Julian, Paz, Evangeline, Geronimo,
Humberto, Teodora and Elena Abada ("Joel Abada, et al."),
and Levi, Leandro, Antonio, Florian, Hernani and Carmela
Tronco ("Levi Tronco, et al."), also opposed the petition. The
oppositors are the nephews, nieces and grandchildren of
Abada and Toray.
On 13 September 1968, Alipio filed another
petition6 before the RTC-Kabankalan, docketed as SP No.
071 (312-8669), for the 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).
On 20 September 1968, Caponong filed a petition7 before
the RTC-Kabankalan, docketed as SP No. 069 (309),
praying for the issuance in his name of letters of
administration of the intestate estate of Abada and Toray.
In an Order dated 14 August 1981, the RTC-Kabankalan
admitted to probate the will of Toray. Since the oppositors
did not file any motion for reconsideration, the order allowing
the probate of Toray’s will became final and executory.8
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 moved for the dismissal of the
petition for probate of the will of Abada. The RTC-
Kabankalan denied the motion in an Order dated 20
August 1991.10
Sometime in 1993, during the proceedings, Presiding
Judge Rodolfo S. Layumas discovered that in an Order
dated 16 March 1992, former Presiding Judge Edgardo
Catilo had already submitted the case for decision. Thus,
the RTC-Kabankalan rendered a Resolution dated 22 June
1994, as follows:
There having been sufficient notice to the heirs as required
by law; that there is substantial compliance with the
formalities of a Will as the law directs and that the
petitioner through his testimony and the deposition of Felix
Gallinero was able to establish the 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, the Last Will and Testament of Alipio Abada dated June
4, 1932 is admitted and allowed probate.
As prayed for by counsel, Noel Abbellar11 is appointed
administrator of the estate of Paula Toray who shall
discharge his duties as such after letters of administration
shall have been issued in his favor and after taking his oath
and filing a bond in the amount of Ten Thousand
(₱10,000.00) Pesos.
Mrs. Belinda C. Noble, the present administratrix of the
estate of Alipio Abada shall continue discharging her duties
as such until further orders from this Court.
SO ORDERED.12
The RTC-Kabankalan ruled on the only issue raised by the
oppositors in their motions to dismiss the petition for
probate, that is, whether the will of Abada has an
attestation clause as required by law. The RTC-Kabankalan
further held that the failure of the oppositors to raise any
other matter forecloses all other issues.
Not satisfied with the Resolution, Caponong-Noble filed a
notice of appeal.
In a Decision promulgated on 12 January 2001, the Court
of Appeals affirmed the Resolution of the RTC-Kabankalan.
The appellate court found that the RTC-Kabankalan
properly admitted to probate the will of Abada.
Hence, the present recourse by Caponong-Noble.
The Issues
The petition raises the following issues:
1. What laws apply to the probate of the last will of
Abada;
2. Whether the will of Abada requires
acknowledgment before a notary public;13
3. Whether the will must expressly state that it is
written in a language or dialect known to the
testator;
4. Whether the will of Abada has an attestation
clause, and if so, whether the attestation clause
complies with the requirements of the applicable
laws;
5. Whether Caponong-Noble is precluded from
raising the issue of whether the will of Abada is
written in a language known to Abada;
6. Whether evidence aliunde may be resorted to in
the probate of the will of Abada.
The Ruling of the Court
6
The Court of Appeals did not err in sustaining the RTC-
Kabankalan in admitting to probate the will of Abada.
The Applicable Law
Abada executed his will on 4 June 1932. The laws in force
at that time are the Civil Code of 1889 or the Old Civil Code,
and Act No. 190 or the Code of Civil Procedure14 which
governed the execution of wills before the enactment of the
New Civil Code.
The matter in dispute in the present case is the attestation
clause in the will of Abada. Section 618 of the Code of Civil
Procedure, as amended by Act No. 2645,15 governs the form
of the attestation clause of Abada’s will.16Section 618 of the
Code of Civil Procedure, as amended, provides:
SEC. 618. Requisites of will. – No will, except as provided in
the preceding section,17 shall be valid to pass any estate,
real or personal, nor charge or affect the same, unless it be
written in the language or dialect known by the testator and
signed by him, 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 each other.
The testator or the person requested by him to write his
name and the instrumental witnesses of the will, shall also
sign, as aforesaid, each and every page thereof, on the left
margin, and said pages shall be numbered correlatively in
letters placed on the upper part of each sheet. The
attestation shall state the number of sheets or pages used,
upon which the will is written, and the fact that the testator
signed the will and every page thereof, or caused some
other person to write his name, under his express direction,
in the presence of three witnesses, and the latter
witnessed and signed the will and all pages thereof in the
presence of the testator and of each other.
Requisites of a Will under the Code of Civil Procedure
Under Section 618 of the Code of Civil Procedure, the
requisites of a will are the following:
(1) The will must be written in the language or
dialect known by the testator;
(2) The will must be signed by the testator, or by
the testator’s name written by some other person
in his presence, and by his express direction;
(3) The will must be attested and subscribed by
three or more credible witnesses in the presence
of the testator and of each other;
(4) The testator or the person requested by him to
write his name and the instrumental witnesses of
the will must sign each and every page of the will
on the left margin;
(5) The pages of the will must be numbered
correlatively in letters placed on the upper part of
each sheet;
(6) The attestation shall state the number of
sheets or pages used, upon which the will is
written, and the fact that the testator signed the
will and every page of the will, or caused some
other person to write his name, under his express
direction, in the presence of three witnesses, and
the witnesses witnessed and signed the will and all
pages of the will in the presence of the testator
and of each other.
Caponong-Noble asserts that the will of Abada does not
indicate that it is written in a language or dialect known to
the testator. Further, she maintains that the will is not
acknowledged before a notary public. She cites in particular
Articles 804 and 805 of the Old Civil Code, thus:
Art. 804. Every will must be in writing and executed in [a]
language or dialect known to the testator.
Art. 806. Every will must be acknowledged before a notary
public by the testator and the witnesses. xxx18
Caponong-Noble actually cited Articles 804 and 806 of
the New Civil Code.19 Article 804 of the Old Civil Code is
about the rights and obligations of administrators of the
property of an absentee, while Article 806 of the Old Civil
Code defines a legitime.
Articles 804 and 806 of the New Civil Code are new
provisions. Article 804 of the New Civil Code is taken from
Section 618 of the Code of Civil Procedure.20 Article 806 of
the New Civil Code is taken from Article 685 of the Old Civil
Code21 which provides:
Art. 685. The notary and two of the witnesses who
authenticate the will must be acquainted with the testator,
or, should they not know him, he shall be identified by two
witnesses who are acquainted with him and are known to
the notary and to the attesting witnesses. The notary and
the witnesses shall also endeavor to assure themselves
that the testator has, in their judgment, the legal capacity
required to make a will.
Witnesses authenticating a will without the attendance of a
notary, in cases falling under Articles 700 and 701, are
also required to know the testator.
However, the Code of Civil Procedure22 repealed Article 685
of the Old Civil Code. Under the Code of Civil Procedure, the
intervention of a notary is not necessary in the execution
of any will.23 Therefore, Abada’s will does not require
acknowledgment before a notary public.1awphi1.nét
Caponong-Noble points out that nowhere in the will can one
discern that Abada knew the Spanish language. She alleges
that such defect is fatal and must result in the disallowance
of the will. On this issue, the Court of Appeals held that the
matter was not raised in the motion to dismiss, and that it is
now too late to raise the issue on appeal. We agree with
Caponong-Noble that the doctrine of estoppel does not apply
in probate proceedings.24 In addition, the language used in
the will is part of the requisites under Section 618 of the
7
Code of Civil Procedure and the Court deems it proper to
pass upon this issue.
Nevertheless, Caponong-Noble’s contention must still fail.
There is no statutory requirement to state in the will itself
that the testator knew the language or dialect used in the
will.25 This is a matter that a party may establish by
proof aliunde.26 Caponong-Noble further argues that Alipio,
in his testimony, has failed, among others, to show that
Abada knew or understood the contents of the will and the
Spanish language used in the will. However, Alipio testified
that Abada used to gather Spanish-speaking people in their
place. In these gatherings, Abada and his companions
would talk in the Spanish language.27 This sufficiently
proves that Abada speaks the Spanish language.
The Attestation Clause of Abada’s Will
A scrutiny of Abada’s will shows that it has an attestation
clause. The attestation clause of Abada’s will reads:
Suscrito y declarado por el testador Alipio Abada como su
ultima voluntad y testamento en presencia de nosotros,
habiendo tambien el testador firmado en nuestra presencia
en el margen izquierdo de todas y cada una de las hojas
del mismo. Y en testimonio de ello, cada uno de nosotros lo
firmamos en presencia de nosotros y del testador al pie de
este documento y en el margen izquierdo de todas y cada
una de las dos hojas de que esta compuesto el mismo, las
cuales estan paginadas correlativamente con las letras
"UNO" y "DOS’ en la parte superior de la carrilla.28
Caponong-Noble proceeds to point out several defects in
the attestation clause. Caponong-Noble alleges that the
attestation clause fails to state the number of pages on
which the will is written.
The allegation has no merit. The phrase "en el margen
izquierdo de todas y cada una de las dos hojas de que esta
compuesto el mismo" which means "in the left margin of
each and every one of the two pages consisting of the
same" shows that the will consists of two pages. The pages
are numbered correlatively with the letters "ONE" and
"TWO" as can be gleaned from the phrase "las cuales estan
paginadas correlativamente con las letras "UNO" y "DOS."
Caponong-Noble further alleges that the attestation clause
fails to state expressly that the testator signed the will and
its every page in the presence of three witnesses. She then
faults the Court of Appeals for applying to the present case
the rule on substantial compliance found in Article 809 of
the New Civil Code.29
The first sentence of the attestation clause reads: "Suscrito
y declarado por el testador Alipio Abada como su ultima
voluntad y testamento en presencia de nosotros, habiendo
tambien el testador firmado en nuestra presencia en el
margen izquierdo de todas y cada una de las hojas del
mismo." The English translation is: "Subscribed and
professed by the testator Alipio Abada as his last will and
testament in our presence, the testator having also signed
it in our presence on the left margin of each and every one
of the pages of the same." The attestation clause clearly
states that Abada signed the will and its every page in the
presence of the witnesses.
However, Caponong-Noble is correct in saying that the
attestation clause does not indicate the number of
witnesses. On this point, the Court agrees with the
appellate court in applying the rule on substantial
compliance in determining the number of witnesses. While
the attestation clause does not state the number of
witnesses, a close inspection of the will shows that three
witnesses signed it.
This Court has applied the rule on substantial compliance
even before the effectivity of the New Civil Code. In Dichoso
de Ticson v. De Gorostiza,30 the Court recognized that there
are two divergent tendencies in the law on wills, one being
based on strict construction and the other on liberal
construction. In Dichoso, the Court noted that Abangan v.
Abangan,31 the basic case on the liberal construction, is
cited with approval in later decisions of the Court.
In Adeva vda. De Leynez v. Leynez,32 the petitioner, arguing
for liberal construction of applicable laws, enumerated a
long line of cases to support her argument while the
respondent, contending that the rule on strict construction
should apply, also cited a long series of cases to support
his view. The Court, after examining the cases invoked by
the parties, held:
x x x It is, of course, not possible to lay down a general rule,
rigid and inflexible, which would be applicable to all cases.
More than anything else, the facts and circumstances of
record are to be considered in the application of any given
rule. If the surrounding circumstances point to a regular
execution of the will, and the instrument appears to have
been executed substantially in accordance with the
requirements of the law, the inclination should, in the
absence of any suggestion of bad faith, forgery or fraud,
lean towards its admission to probate, although the
document may suffer from some imperfection of language,
or other non-essential defect. x x x.
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 witnesses, or other casualty,
they may still be proved. (Thompson 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 331a\^/phi1.net
We rule to apply the liberal construction in the probate of
Abada’s will. Abada’s will clearly shows four signatures: that
of Abada and of three other persons. It is reasonable to
conclude that there are three witnesses to the will. The
question on the number of the witnesses is answered by an
examination of the will itself and without the need for
presentation of evidence aliunde. The Court explained the
extent and limits of the rule on liberal construction, thus:
8
[T]he so-called liberal rule does not offer any puzzle or
difficulty, nor does it open the door to serious
consequences. The later decisions do tell us when and
where to stop; they draw the dividing line with
precision. They do not allow evidence aliunde to fill a void
in any part of the document or supply missing details that
should appear in the will itself.l^vvphi1.net They only permit
a probe into the will, an exploration within its confines, to
ascertain its meaning or to determine the existence or
absence of the requisite formalities of law. This clear, sharp
limitation eliminates uncertainty and ought to banish any
fear of dire results.34 (Emphasis supplied)
The phrase "en presencia de nosotros" or "in our presence"
coupled with the signatures appearing on the will itself and
after the attestation clause could only mean that: (1) Abada
subscribed to and professed before the three witnesses
that the document was his last will, and (2) Abada signed
the will and the left margin of each page of the will in the
presence of these three witnesses.
Finally, Caponong-Noble alleges that the attestation clause
does not expressly state the circumstances that the
witnesses witnessed and signed the will and all its pages in
the presence of the testator and of each other. This Court
has ruled:
Precision of language in the drafting of an attestation
clause is desirable. However, it is not imperative that a
parrot-like copy of the words of the statute be made. It is
sufficient if from the language employed it can reasonably
be deduced that the attestation clause fulfills what the law
expects of it.35
The last part of the attestation clause states "en testimonio
de ello, cada uno de nosotros lo firmamos en presencia de
nosotros y del testador." In English, this means "in its
witness, every one of us also signed in our presence and of
the testator." This clearly shows that the attesting
witnesses witnessed the signing of the will of the testator,
and that each witness signed the will in the presence of
one another and of the testator.
WHEREFORE, we AFFIRM the Decision of the Court of
Appeals of 12 January 2001 in CA-G.R. CV No. 47644.
SO ORDERED.
G.R. No. 16008 September 29, 1921
IN RE WILL OF THE DECEASED LUCINA ANDRADA, LUCILA
ARCE, petitioner-appellant.
J. Dorado, J. Tirol, and J. Hontiveros for appellant.
STREET, J.:
Lucina Andrada died on June 5, 19919, in the Municipality
of Capiz, Province of Capiz; and soon thereafter a petition
was presented to the Cour of First Instance of Capiz by
Lucila Arce to establish a document purporting to be the
last will and testament of the deceased. Upon hearing the
petition, his Honor, Judge Antonio Villareal, declared that
the document in question had not been executed in
conformity with the requirements of section 618 of the Coe
of Civil Procedure, as amended by Act No. 2645 of the
Philippine Legislature. He therefore refused to admit the
purported will to probate, and the petitioner appealed.
The attesting clause of the will in question is incorporated
in the will itself, constituting the last paragraph thereof; and
its defect consists in the fact that it does not state the
number of sheets or pages upon which the will is written,
though it does state that the testatrix and the instrumental
witnesses signed on every page, as is in fact obvious from
an inspection of the instrument. Each of the pages
moreover bears successively the Visayan words, "isa,"
"duha," "tatlo," "apat," "lima," which mean respectively
"one," "two," "three," "four," "five," Visayan being the dialect
in which the instrument is written.
By section 618 of the Code of Civil Procedure, as amended
by Act No. 2645, it is required that each and every page of
the will shall be numbered correlatively in letters and that
the attesting clause shall state the number of sheets or
pages used.
Without decising in this case whether the will in question is
rendered invalid by reason of the manner in which the
pages are numbered, the court is unanimous upon the
point that the defect pointed out in the attesting clause is
fatal. The law plainly says that the attestation shall state
the number of sheets or pages used, the eident purpose
being to safeguard the document from the possiblity of the
interpolation of additional pages or the omission of some of
the pages actually used. It is true that this point is also
safeguarded by the other two requirements that the pages
shall be consecutively lettered and that each page shall be
singed on the left margin by the testator and the witnesses.
In light of these requirements it is really difficult to see any
practical necessity for the additional requirement that the
attesting clause shall state the number of sheets or pages
used. Nevertheless, it cannot be denied that the last
mentioned requirement affords additional secuirty against
the danger that the will may be tampered with; and as the
Legislature has seen fit to prescribe this requirement, it
must be considered material.
In two cases we have held that the failure to comply with
the strict requirements of this law does not invalidate the
9
instrument, but the irregularities presented in those cases
were entirely rivial, the defect in one case being that a willin
which the dispositive part consisted of a single sheet was
not signed in the margin in addition to being signed at the
bottom (In re will of Abangan, 40 Phil., 476); in the others,
that the pages comprising the body of the will were signed
by the testator and witnesses on the right margin instead of
the left (Avera vs. Garcia and Rodriguez, p. 145, ante). In
the case now before us the defect is, in our opinion, of
more significance; and the rule here applicable is that
enunciated in Caraig vs. Tatlonghari, R.G. No. 12558,
decided March 23, 1918, not reported, and (In re estate of
Saguinsim, 41 Phil., 875), in each of which the will was
held to be invalid.
It results that the trial judge did not err in refusing probate
of the will, and the judgment must be affirmed. It is so
ordered, with costs against the appellant.
G.R. No. L-5826 April 29, 1953
Testate estate of the late VICENTE CAGRO. JESUSA
CAGRO, petitioner-appellee,
vs.
PELAGIO CAGRO, ET AL., oppositors-appellants.
Clouduallo Lucero and Vicente C. Santos for appellants.
Marciano Chitongco and Zosimo B. Echanova for appellee.
PARAS, C.J.:
This is an appeal interposed by the oppositors from a
decision of the Court of First Instance of Samar, admitting
to probate the will allegedly executed by Vicente Cagro who
died in Laoangan, Pambujan, Samar, on February 14,
1949.
The main objection insisted upon by the appellant in that
the will is fatally defective, because its attestation clause is
not signed by the attesting witnesses. There is no question
that the signatures of the three witnesses to the will do not
appear at the bottom of the attestation clause, although
the page containing the same is signed by the witnesses on
the left-hand margin.
We are of the opinion that the position taken by the
appellant is correct. The attestation clause is 'a
memorandum of the facts attending the execution of the
will' required by law to be made by the attesting witnesses,
and it must necessarily bear their signatures. An unsigned
attestation clause cannot be considered as an act of the
witnesses, since the omission of their signatures at the
bottom thereof negatives their participation.
The petitioner and appellee contends that signatures of the
three witnesses on the left-hand margin conform
substantially to the law and may be deemed as their
signatures to the attestation clause. This is untenable,
because said signatures are in compliance with the legal
mandate that the will be signed on the left-hand margin of
all its pages. If an attestation clause not signed by the three
witnesses at the bottom thereof, be admitted as sufficient,
it would be easy to add such clause to a will on a
subsequent occasion and in the absence of the testator
and any or all of the witnesses.
Wherefore, the appealed decision is reversed and the
probate of the will in question denied. So ordered with
costs against the petitioner and appellee.
G.R. No. L-36033 November 5, 1982
IN THE MATTER OF THE PETITION FOR THE PROBATE OF
THE WILL OF DOROTEA PEREZ, (deceased): APOLONIO
TABOADA, petitioner,
vs.
HON. AVELINO S. ROSAL, as Judge of Court of First Instance
of Southern Leyte, (Branch III, Maasin), respondent.
Erasmo M. Diola counsel for petition.
Hon. Avelino S. Rosal in his own behalf.
GUTIERREZ, JR. J.:
This is a petition for review of the orders issued by the
Court of First Instance of Southern Leyte, Branch III, in
Special Proceedings No. R-1713, entitled "In the Matter of
the Petition for Probate of the Will of Dorotea Perez,
Deceased; Apolonio Taboada, Petitioner", which denied the
probate of the will, the motion for reconsideration and the
motion for appointment of a special administrator.
In the petition for probate filed with the respondent court,
the petitioner attached the alleged last will and testament
of the late Dorotea Perez. Written in the Cebuano-Visayan
dialect, the will consists of two pages. The first page
contains the entire testamentary dispositions and is signed
at the end or bottom of the page by the testatrix alone and
at the left hand margin by the three (3) instrumental
witnesses. The second page which contains the attestation
clause and the acknowledgment is signed at the end of the
attestation clause by the three (3) attesting witnesses and
at the left hand margin by the testatrix.
Since no opposition was filed after the petitioner's
compliance with the requirement of publication, the trial
court commissioned the branch clerk of court to receive the
petitioner's evidence. Accordingly, the petitioner submitted
his evidence and presented Vicente Timkang, one of the
subscribing witnesses to the will, who testified on its
genuineness and due execution.
The trial court, thru then Presiding Judge Ramon C.
Pamatian issued the questioned order denying the probate
of the will of Dorotea Perez for want of a formality in its
execution. In the same order, the petitioner was also
required to submit the names of the intestate heirs with
10
their corresponding addresses so that they could be
properly notified and could intervene in the summary
settlement of the estate.
Instead of complying with the order of the trial court, the
petitioner filed a manifestation and/or motion, ex
partepraying for a thirty-day period within which to
deliberate on any step to be taken as a result of the
disallowance of the will. He also asked that the ten-day
period required by the court to submit the names of
intestate heirs with their addresses be held in abeyance.
The petitioner filed a motion for reconsideration of the
order denying the probate of the will. However, the motion
together with the previous manifestation and/or motion
could not be acted upon by the Honorable Ramon C.
Pamatian due to his transfer to his new station at Pasig,
Rizal. The said motions or incidents were still pending
resolution when respondent Judge Avelino S. Rosal
assumed the position of presiding judge of the respondent
court.
Meanwhile, the petitioner filed a motion for the
appointment of special administrator.
Subsequently, the new Judge denied the motion for
reconsideration as well as the manifestation and/or motion
filed ex parte. In the same order of denial, the motion for
the appointment of special administrator was likewise
denied because of the petitioner's failure to comply with the
order requiring him to submit the names of' the intestate
heirs and their addresses.
The petitioner decided to file the present petition.
For the validity of a formal notarial will, does Article 805 of
the Civil Code require that the testatrix and all the three
instrumental and attesting witnesses sign at the end of the
will and in the presence of the testatrix and of one another?
Article 805 of the Civil Code provides:
Every will, other than a holographic will, must be
subscribed at the end thereof by the testator
himself or by the testator's name written by some
other person in his presence, and by his express
direction, and attested and subscribed by three or
more credible witnesses in the presence of the
testator and of one another.
The testator or the person requested by him to
write his name and the instrumental witnesses of
the will, shall also sign, as aforesaid, each and
every page thereof, except the last, on the left
margin, and all the pages shall be numbered
correlatively in letters placed on the upper part of
each page.
The attestation shall state the number of pages
used upon which the will is written, and the fact
that the testator signed the will and every page
thereof, or caused some other person to write his
name, under his express direction, in the presence
of the instrumental witnesses, and that the lacier
witnesses and signed the will and the pages
thereof in the presence of the testator and of one
another.
If the attestation clause is in a language not known
to the witnesses, it shall be interpreted to the
witnesses, it shall be interpreted to them.
The respondent Judge interprets the above-quoted
provision of law to require that, for a notarial will to be valid,
it is not enough that only the testatrix signs at the "end" but
an the three subscribing witnesses must also sign at the
same place or at the end, in the presence of the testatrix
and of one another because the attesting witnesses to a
will attest not merely the will itself but also the signature of
the testator. It is not sufficient compliance to sign the page,
where the end of the will is found, at the left hand margin of
that page.
On the other hand, the petitioner maintains that Article 805
of the Civil Code does not make it a condition precedent or
a matter of absolute necessity for the extrinsic validity of
the wig that the signatures of the subscribing witnesses
should be specifically located at the end of the wig after the
signature of the testatrix. He contends that it would be
absurd that the legislature intended to place so heavy an
import on the space or particular location where the
signatures are to be found as long as this space or
particular location wherein the signatures are found is
consistent with good faith and the honest frailties of human
nature.
We find the petition meritorious.
Undoubtedly, under Article 805 of the Civil Code, the will
must be subscribed or signed at its end by the testator
himself or by the testator's name written by another person
in his presence, and by his express direction, and attested
and subscribed by three or more credible witnesses in the
presence of the testator and of one another.
It must be noted that the law uses the
terms attested and subscribed Attestation consists in
witnessing the testator's execution of the will in order to see
and take note mentally that those things are, done which the
statute requires for the execution of a will and that the
signature of the testator exists as a fact. On the other hand,
subscription is the signing of the witnesses' names upon the
same paper for the purpose of Identification of such paper
as the will which was executed by the testator. (Ragsdale v.
Hill, 269 SW 2d 911).
Insofar as the requirement of subscription is concerned, it
is our considered view that the will in this case was
subscribed in a manner which fully satisfies the purpose of
Identification.
The signatures of the instrumental witnesses on the left
margin of the first page of the will attested not only to the
genuineness of the signature of the testatrix but also the
11
due execution of the will as embodied in the attestation
clause.
While perfection in the drafting of a will may be desirable,
unsubstantial departure from the usual forms should be
ignored, especially where the authenticity of the will is not
assailed. (Gonzales v. Gonzales, 90 Phil. 444, 449).
The law is to be liberally construed, "the underlying and
fundamental objective permeating the provisions on the
law on wills in this project consists in the liberalization of
the manner of their execution with the end in view of giving
the testator more freedom in expressing his last wishes but
with sufficient safeguards and restrictions to prevent the
commission of fraud and the exercise of undue and
improper pressure and influence upon the testator. This
objective is in accord with the modern tendency in respect
to the formalities in the execution of a will" (Report of the
Code commission, p. 103).
Parenthetically, Judge Ramon C. Pamatian stated in his
questioned order that were not for the defect in the place
of signatures of the witnesses, he would have found the
testimony sufficient to establish the validity of the will.
The objects of attestation and of subscription were fully
met and satisfied in the present case when the
instrumental witnesses signed at the left margin of the sole
page which contains all the testamentary dispositions,
especially so when the will was properly Identified by
subscribing witness Vicente Timkang to be the same will
executed by the testatrix. There was no question of fraud or
substitution behind the questioned order.
We have examined the will in question and noticed that the
attestation clause failed to state the number of pages used
in writing the will. This would have been a fatal defect were
it not for the fact that, in this case, it is discernible from the
entire wig that it is really and actually composed of only two
pages duly signed by the testatrix and her instrumental
witnesses. As earlier stated, the first page which contains
the entirety of the testamentary dispositions is signed by
the testatrix at the end or at the bottom while the
instrumental witnesses signed at the left margin. The other
page which is marked as "Pagina dos" comprises the
attestation clause and the acknowledgment. The
acknowledgment itself states that "This Last Will and
Testament consists of two pages including this page".
In Singson v. Florentino, 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 pages used:
The law referred to is article 618 of the Code of
Civil Procedure, as amended by Act No. 2645,
which requires that the attestation clause shall
state the number of pages or sheets upon which
the win is written, which requirement has been
held to be mandatory as an effective safeguard
against the possibility of interpolation or omission
of some of the pages of the will to the prejudice of
the heirs to whom the property is intended to be
bequeathed (In re will of Andrada, 42 Phil., 180; Uy
Coque vs. Navas L. Sioca, 43 Phil. 405; Gumban
vs. Gorecho, 50 Phil. 30; Quinto vs. Morata, 54
Phil. 481; Echevarria vs. Sarmiento, 66 Phil. 611).
The ratio decidendi of these cases seems to be
that the attestation clause must contain a
statement of the number of sheets or pages
composing the will and that if this is missing or is
omitted, it will have the effect of invalidating the
will if the deficiency cannot be supplied, not by
evidence aliunde, but by a consideration or
examination of the will itself. But here the situation
is different. While the attestation clause does not
state the number of sheets or pages upon which
the will is written, however, the last part of the
body of the will contains a statement that it is
composed of eight pages, which circumstance in
our opinion takes this case out of the rigid rule of
construction and places it within the realm of
similar cases where a broad and more liberal view
has been adopted to prevent the will of the
testator from being defeated by purely technical
considerations.
Icasiano v. Icasiano (11 SCRA 422, 429) has the following
ruling which applies a similar liberal approach:
... Impossibility of substitution of this page is
assured not only (sic) the fact that the testatrix and
two other witnesses did sign the defective page,
but also by its bearing the coincident imprint of the
seal of the notary public before whom the
testament was ratified by testatrix and all three
witnesses. The law should not be so strictly and
literally interpreted as to penalize the testatrix on
account of the inadvertence of a single witness
over whose conduct she had no control where the
purpose of the law to guarantee the Identity of the
testament and its component pages is sufficiently
attained, no intentional or deliberate deviation
existed, and the evidence on record attests to the
fun observance of the statutory requisites.
Otherwise, as stated in Vda. de Gil. Vs. Murciano,
49 Off. Gaz. 1459, at 1479 (decision on
reconsideration) 'witnesses may sabotage the will
by muddling or bungling it or the attestation
clause.
WHEREFORE, the present petition is hereby granted. The
orders of the respondent court which denied the probate of
tile will, the motion for reconsideration of the denial of
probate, and the motion for appointment of a special
administrator are set aside. The respondent court is
ordered to allow the probate of the wig and to conduct
further proceedings in accordance with this decision. No
pronouncement on costs.
SO ORDERED.
12
G.R. No. L-39209 March 10, 1934
HIPOLITO ANDALIS, petitioner-appellee,
vs.
LUCIA PULGUERAS, ET AL., oppositors-appellants.
Jose M. Peñas for appellants.
Hilario B. Regalado for appellee.
HULL, J.:
This is an appeal from a decision of the Court of First
Instance of Camarines Sur admitting to probate an alleged
will of Victor Pulgueras, deceased. The testimony of only
one of the attesting witnesses was taken. His testimony
was to the effect that six pages of the will were signed on
the margin by the testator and two of the witnesses about
the 4th of January, 1931, that on the 11th of January,
1931, the remaining three pages were signed by the
testator and the three attesting witnesses, and that the
third attesting witness then signed the first six pages.
Such an execution of the will was not in conformity with
article 618 of the Code of Civil Procedure as amended.
Under our statute, the execution of a will is supposed to be
one act and cannot be legally effective if the various
participants sign on various days and in various
combinations of those present.1ªvvphi1.ne+
The judgment of the Court of First Instance of Camarines
Sur is therefore reversed, and the will in question is denied
probate. Costs against appellee. So ordered.
In the Matter of the summary settlement of the Estate of
the deceased
ANACLETA ABELLANA. LUCIO BALONAN, petitioner-
appellee,
vs.
EUSEBIA ABELLANA, et al., oppositors-appellants.
T. de los Santos for appellee.
Climaco and Climaco for appellants.
LABARADOR, J.:
Appeal from a decision of the Court of First Instance of
Zamboanga City admitting to probate the will of one
Anacleta Abellana. The case was originally appealed to the
Court of Appeals where the following assignment of error is
made:
The appellants respectfully submit that the Trial
Court erred in holding that the supposed
testament, Exh. "A", was signed in accordance with
law; and in admitting the will to probate.
In view of the fact that the appeal involves a question of
law the said court has certified the case to us.
The facts as found by the trial court are as follows:
It appears on record that the last Will and
Testament (Exhibit "A"), which is sought to be
probated, is written in the Spanish language and
consists of two (2) typewritten pages (pages 4 and
5 of the record) double space. The first page is
signed by Juan Bello and under his name appears
typewritten "Por la testadora Anacleta Abellana,
residence Certificate A-1167629, Enero 20, 1951,
Ciudad de Zamboanga', and on the second page
appears the signature of three (3) instrumental
witnesses Blas Sebastian, Faustino Macaso and
Rafael Ignacio, at the bottom of which appears the
signature of T. de los Santos and below his
signature is his official designation as the notary
public who notarized the said testament. On the
first page on the left margin of the said instrument
also appear the signatures of the instrumental
witnesses. On the second page, which is the last
page of said last Will and Testament, also appears
the signature of the three (3) instrumental
witnesses and on that second page on the left
margin appears the signature of Juan Bello under
whose name appears handwritten the following
phrase, "Por la Testadora Anacleta Abellana'. The
will is duly acknowledged before Notary Public
Attorney Timoteo de los Santos. (Emphasis
supplied)
The appeal squarely presents the following issue: Does the
signature of Dr. Juan A. Abello above the typewritten
statement "Por la Testadora Anacleta Abellana . . ., Ciudad
de Zamboanga," comply with the requirements of law
prescribing the manner in which a will shall be executed?
The present law, Article 805 of the Civil Code, in part
provides as follows:
Every will, other than a holographic will, must
be subscribed at the end thereof by the testator
himself or by the testator's name written by some
other person in his presence, and by his express
direction, and attested and subscribed by three or
more credible witness in the presence of the
testator and of one another. (Emphasis supplied.)
The clause "must be subscribed at the end thereof by the
testator himself or by the testator's name written by some
other person in his presence and by his express direction,"
is practically the same as the provisions of Section 618 of
the Code of Civil Procedure (Act No. 190) which reads as
follows:
No will, except as provided in the preceding section
shall be valid to pass any estate, real or personal,
nor charge or affect the same, 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
each other. . . . (Emphasis supplied).
13
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 express direction. Applying this
provision this Court said in the case of Ex Parte Pedro
Arcenas, et al., Phil., 700:
It will be noticed from the above-quoted section
618 of the Code 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 certifying thereto as provided in Article
695 of the Civil Code, which, in this respect, was
modified by section 618 above referred to, but it is
necessary that the testator's name be written by
the person signing in his stead in the place where
he could have signed if he knew how or was able
to do so, and this in the testator's presence and by
his express direction; so that a will signed in a
manner different than that prescribed by law shall
not be valid and will not be allowed to be probated.
Where a testator does not know how, or is unable
for any reason, to sign the will himself, it shall be
signed in the following manner:
John Doe by the testator, Richard Doe; or in this
form: "By the testator, John Doe, Richard Doe." All
this must be written by the witness signing at the
request of the testator.
Therefore, under the law now in force, the witness
Naval A. Vidal should have written at the bottom of
the will the full name of the testator and his own
name in one forms given above. He did not do so,
however, and this is failure to comply with the law
is a substantial defect which affects the validity of
the will and precludes its allowance,
notwithstanding the fact that no one appeared to
oppose it.
The same ruling was laid down in the case of Cuison vs.
Concepcion, 5 Phil., 552. In the case of Barut vs.
Cabacungan, 21 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; it is unimportant
whether the person who writes the name of the testatrix
signs his own or not. Cases of the same import areas
follows: (Ex Parte Juan Ondevilla, 13 Phil., 479,
Caluya vs.Domingo, 27 Phil., 330; Garcia vs. Lacuesta, 90
Phil., 489).
In the case at bar the name of the testatrix, Anacleta
Abellana, does not appear written under the will by said
Abellana herself, or by Dr. Juan Abello. There is, therefore,
a failure to comply with the express requirement in the law
that the testator must himself sign the will, or that his name
be affixed thereto by some other person in his presence
and by his express direction.
It appearing that the above provision of the law has not
been complied with, we are constrained to declare that the
said will of the deceased Anacleta Abellana may not be
admitted to probate.
WHEREFORE, the decision appealed from is hereby set
aside and the petition for the probate of the will denied.
With costs against petitioner.
G.R. No. 122880 April 12, 2006
FELIX AZUELA, Petitioner,
vs.
COURT OF APPEALS, GERALDA AIDA CASTILLO substituted
by ERNESTO G. CASTILLO, Respondents.
DECISION
TINGA, J.:
The core of this petition is a highly defective notarial will,
purportedly executed by Eugenia E. Igsolo (decedent), who
died on 16 December 1982 at the age of 80. In refusing to
give legal recognition to the due execution of this
document, the Court is provided the opportunity to assert a
few important doctrinal rules in the execution of notarial
wills, all self-evident in view of Articles 805 and 806 of the
Civil Code.
A will whose attestation clause does not contain the
number of pages on which the will is written is fatally
defective. A will whose attestation clause is not signed by
the instrumental witnesses is fatally defective. And perhaps
most importantly, a will which does not contain an
acknowledgment, but a mere jurat, is fatally defective. Any
one of these defects is sufficient to deny probate. A notarial
will with all three defects is just aching for judicial rejection.
There is a distinct and consequential reason the Civil Code
provides a comprehensive catalog of imperatives for the
proper execution of a notarial will. Full and faithful
compliance with all the detailed requisites under Article
805 of the Code leave little room for doubt as to the validity
in the due execution of the notarial will. Article 806 likewise
imposes another safeguard to the validity of notarial wills —
that they be acknowledged before a notary public by the
testator and the witnesses. A notarial will executed with
indifference to these two codal provisions opens itself to
nagging questions as to its legitimacy.
The case stems from a petition for probate filed on 10 April
1984 with the Regional Trial Court (RTC) of Manila. The
petition filed by petitioner Felix Azuela sought to admit to
probate the notarial will of Eugenia E. Igsolo, which was
notarized on 10 June 1981. Petitioner is the son of the
cousin of the decedent.
The will, consisting of two (2) pages and written in the
vernacular Pilipino, read in full:
14
 HULING HABILIN NI EUGENIA E. IGSOLO
SA NGALAN NG MAYKAPAL, AMEN:
AKO, si EUGENIA E. IGSOLO, nakatira sa 500 San Diego St.,
Sampaloc, Manila, pitongput siyam (79) na gulang, nasa
hustong pagi-isip, pag-unawa at memoria ay nag-hahayag
na ito na ang aking huling habilin at testamento, at binabali
wala ko lahat ang naunang ginawang habilin o testamento:
Una-Hinihiling ko na ako ay mailibing sa Sementerio del
Norte, La Loma sang-ayong sa kaugalian at patakaran ng
simbahang katoliko at ang taga-pag-ingat (Executor) ng
habiling ito ay magtatayo ng bantayog upang silbing ala-ala
sa akin ng aking pamilya at kaibigan;
Pangalawa-Aking ipinagkakaloob at isinasalin ang lahat ng
karapatan sa aking pamangkin na si Felix Azuela, na siyang
nag-alaga sa akin sa mahabang panahon, yaong mga
bahay na nakatirik sa lote numero 28, Block 24 at
nakapangalan sa Pechaten Korporasyon, ganoon din
ibinibigay ko ang lahat ng karapatan sa bahay na nakatirik
sa inoopahan kong lote, numero 43, Block 24 na pag-aari
ng Pechaten Corporation. Ipinagkakaloob kong buong buo
ang lahat ng karapatan sa bahay at lupa na nasa 500 San
Diego St., Lot 42, Block 24, Sampaloc, Manila kay Felix
Azuela at ang pagkakaloob kong ito ay walang pasubali’t at
kondiciones;
Pangatlo- Na ninunumbrahan ko si VART PAGUE na siyang
nagpapatupad ng huling habiling ito at kagustuhan ko rin
na hindi na kailanman siyang mag-lagak ng piyansiya.
Aking nilagdaan ang Huling Habilin na ito dito sa Maynila
ika 10 ng Hunyo, 1981.
(Sgd.)
EUGENIA E. IGSOLO
(Tagapagmana)
PATUNAY NG MGA SAKSI
Ang kasulatang ito, na binubuo ng ____ dahon pati ang
huling dahong ito, na ipinahayag sa amin ni Eugenia E.
Igsolo, tagapagmana na siya niyang Huling Habilin, ngayon
ika-10 ng Hunyo 1981, ay nilagdaan ng nasabing
tagapagmana sa ilalim ng 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 saksi ay lumagda
sa harap ng nasabing tagapagmana at sa harap 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.
EUGENIA E. IGSOLO
address: 500 San Diego St.
Sampaloc, Manila Res. Cert. No. A-7717-37
Issued at Manila on March 10, 1981.
QUIRINO AGRAVA
address: 1228-Int. 3, Kahilum
Pandacan, Manila Res. Cert. No. A-458365
Issued at Manila on Jan. 21, 1981
LAMBERTO C. LEAÑO
address: Avenue 2, Blcok 7,
Lot 61, San Gabriel, G.MA., Cavite Res.
Cert. No. A-768277 issued at Carmona, Cavite on Feb. 7,
1981
JUANITO ESTRERA
address: City Court Compound,
City of Manila Res. Cert. No. A574829
Issued at Manila on March 2, 1981.
Nilagdaan ko at ninotario ko ngayong 10 ng Hunyo 10,
1981 dito sa Lungsod ng Maynila.
(Sgd.)
PETRONIO Y. BAUTISTA
Doc. No. 1232 ; NOTARIO PUBLIKO
Page No. 86 ; Until Dec. 31, 1981
Book No. 43 ; PTR-152041-1/2/81-Manila
Series of 1981 TAN # 1437-977-81
The three named witnesses to the will affixed their
signatures on the left-hand margin of both pages of the will,
but not at the bottom of the attestation clause.
The probate petition adverted to only two (2) heirs, legatees
and devisees of the decedent, namely: petitioner himself,
and one Irene Lynn Igsolo, who was alleged to have resided
abroad. Petitioner prayed that the will be allowed, and that
letters testamentary be issued to the designated executor,
Vart Prague.
The petition was opposed by Geralda Aida Castillo (Geralda
Castillo), who represented herself as the attorney-in-fact of
"the 12 legitimate heirs" of the decedent.2 Geralda Castillo
claimed that the will is a forgery, and that the true purpose
of its emergence was so it could be utilized as a defense in
several court cases filed by oppositor against petitioner,
particularly for forcible entry and usurpation of real
property, all centering on petitioner’s right to occupy the
properties of the decedent.3 It also asserted that contrary
to the representations of petitioner, the decedent was
actually survived by 12 legitimate heirs, namely her
grandchildren, who were then residing abroad. Per records,
it was subsequently alleged that decedent was the widow
of Bonifacio Igsolo, who died in 1965,4 and the mother of a
legitimate child, Asuncion E. Igsolo, who predeceased her
mother by three (3) months.5
Oppositor Geralda Castillo also argued that the will was not
executed and attested to in accordance with law. She
pointed out that decedent’s signature did not appear on the
second page of the will, and the will was not properly
acknowledged. These twin arguments are among the
central matters to this petition.
After due trial, the RTC admitted the will to probate, in an
Order dated 10 August 1992.6 The RTC favorably took into
account the testimony of the three (3) witnesses to the will,
Quirino Agrava, Lamberto Leano, and Juanito Estrada. The
RTC also called to fore "the modern tendency in respect to
15
the formalities in the execution of a will x x x with the end in
view of giving the testator more freedom in expressing his
last wishes;"7 and from this perspective, rebutted
oppositor’s arguments that the will was not properly
executed and attested to in accordance with law.
After a careful examination of the will and consideration of
the testimonies of the subscribing and attesting witnesses,
and having in mind the modern tendency in respect to the
formalities in the execution of a will, i.e., the liberalization
of the interpretation of the law on the formal requirements
of a will with the end in view of giving the testator more
freedom in expressing his last wishes, this Court is
persuaded to rule that the will in question is authentic and
had been executed by the testatrix in accordance with law.
On the issue of lack of acknowledgement, this Court has
noted that at the end of the will after the signature of the
testatrix, the following statement is made under the sub-
title, "Patunay Ng Mga Saksi":
"Ang kasulatang ito, na binubuo ng _____ dahon pati ang
huling dahong ito, na ipinahayag sa amin ni Eugenia N.
Igsolo, tagapagmana na siya niyang Huling Habilin, ngayong
ika-10 ng Hunyo 1981, ay nilagdaan ng nasabing
tagapagmana sa ilalim ng kasulatang nabanggit at sa
kaliwang panig ng lahat at bawa’t dahon, sa harap ng lahat
at bawa’t sa amin, at kami namang mga saksi ay lumagda
sa harap ng nasabing tagapagmana at sa harap 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 aforequoted declaration comprises the attestation
clause and the acknowledgement and is considered by this
Court as a substantial compliance with the requirements of
the law.
On the oppositor’s contention that the attestation clause
was not signed by the subscribing witnesses at the bottom
thereof, this Court is of the view that the signing by the
subscribing witnesses on the left margin of the second
page of the will containing the attestation clause and
acknowledgment, instead of at the bottom thereof,
substantially satisfies the purpose of identification and
attestation of the will.
With regard to the oppositor’s argument that the will was
not numbered correlatively in letters placed on upper part
of each page and that the attestation did not state the
number of pages thereof, it is worthy to note that the will is
composed of only two pages. The first page contains the
entire text of the testamentary dispositions, and the second
page contains the last portion of the attestation clause and
acknowledgement. Such being so, the defects are not of a
serious nature as to invalidate the will. For the same
reason, the failure of the testatrix to affix her signature on
the left margin of the second page, which contains only the
last portion of the attestation clause and acknowledgment
is not a fatal defect.
As regards the oppositor’s assertion that the signature of
the testatrix on the will is a forgery, the testimonies of the
three subscribing witnesses to the will are convincing
enough to establish the genuineness of the signature of the
testatrix and the due execution of the will.8
The Order was appealed to the Court of Appeals by Ernesto
Castillo, who had substituted his since deceased mother-in-
law, Geralda Castillo. In a Decision dated 17 August 1995,
the Court of Appeals reversed the trial court and ordered
the dismissal of the petition for probate.9 The Court of
Appeals noted that the attestation clause failed to state the
number of pages used in the will, thus rendering the will
void and undeserving of probate.10
Hence, the present petition.
Petitioner argues that the requirement under Article 805 of
the Civil Code that "the number of pages used in a notarial
will be stated in the attestation clause" is merely directory,
rather than mandatory, and thus susceptible to what he
termed as "the substantial compliance rule."11
The solution to this case calls for the application of Articles
805 and 806 of the Civil Code, which we replicate in full.
Art. 805. Every will, other than a holographic will, must be
subscribed at the end thereof by the testator himself or by
the testator's name written by some other person in his
presence, and by his express direction, and attested and
subscribed by three or more credible witnesses in the
presence of the testator and of one another.
The testator or the person requested by him to write his
name and the instrumental witnesses of the will, shall also
sign, as aforesaid, each and every page thereof, except the
last, on the left margin, and all the pages shall be
numbered correlatively in letters placed on the upper part
of each page.
The attestation shall state the number of pages used upon
which the will is written, and the fact that the testator
signed the will and every page thereof, or caused some
other person to write his name, under his express direction,
in the presence of the instrumental witnesses, and that the
latter witnessed and signed the will and all the pages
thereof in the presence of the testator and of one another.
If the attestation clause is in a language not known to the
witnesses, it shall be interpreted to them.
Art. 806. Every will must be acknowledged before a notary
public by the testator and the witnesses. The notary public
shall not be required to retain a copy of the will, or file
another with the office of the Clerk of Court.
The appellate court, in its Decision, considered only one
defect, the failure of the attestation clause to state the
number of pages of the will. But an examination of the will
itself reveals several more deficiencies.
As admitted by petitioner himself, the attestation clause
fails to state the number of pages of the will.12 There was
an incomplete attempt to comply with this requisite, a
16
space having been allotted for the insertion of the number
of pages in the attestation clause. Yet the blank was never
filled in; hence, the requisite was left uncomplied with.
The Court of Appeals pounced on this defect in reversing
the trial court, citing in the process Uy Coque v. Navas L.
Sioca13 and In re: Will of Andrada.14 In Uy Coque, the Court
noted that among the defects of the will in question was
the failure of the attestation clause to state the number of
pages contained in the will.15 In ruling that the will could
not be admitted to probate, the Court made the following
consideration which remains highly relevant to this day:
"The purpose of requiring the number of sheets to be
stated in the attestation clause is obvious; the document
might easily be so prepared that the removal of a sheet
would completely change the testamentary dispositions of
the will and in the absence of a statement of the total
number of sheets such removal might be effected by taking
out the sheet and changing the numbers at the top of the
following sheets or pages. If, on the other hand, the total
number of sheets is stated in the attestation clause the
falsification of the document will involve the inserting of
new pages and the forging of the signatures of the testator
and witnesses in the margin, a matter attended with much
greater difficulty."16
The case of In re Will of Andrada concerned a will the
attestation clause of which failed to state the number of
sheets or pages used. This consideration alone was
sufficient for the Court to declare "unanim[ity] upon the
point that the defect pointed out in the attesting clause is
fatal."17 It was further observed that "it cannot be denied
that the x x x requirement affords additional security
against the danger that the will may be tampered with; and
as the Legislature has seen fit to prescribe this
requirement, it must be considered material."18
Against these cited cases, petitioner cites Singson v.
Florentino19 and Taboada v. Hon. Rosal,20 wherein the
Court allowed probate to the wills concerned therein
despite the fact that the attestation clause did not state the
number of pages of the will. Yet the appellate court itself
considered the import of these two cases, and made the
following distinction which petitioner is unable to rebut, and
which we adopt with approval:
Even a cursory examination of the Will (Exhibit "D"), will
readily show that the attestation does not state the number
of pages used upon which the will is written. Hence, the Will
is void and undeserving of probate.
We are not impervious of the Decisions of the Supreme
Court in "Manuel Singson versus Emilia Florentino, et al.,
92 Phil. 161 and Apolonio [Taboada] versus Hon. Avelino
Rosal, et al., 118 SCRA 195," to the effect that a will may
still be valid even if the attestation does not contain the
number of pages used upon which the Will is written.
However, the Decisions of the Supreme Court are not
applicable in the aforementioned appeal at bench. This is
so because, in the case of "Manuel Singson versus Emilia
Florentino, et al., supra," although the attestation in the
subject Will did not state the number of pages used in the
will, however, the same was found in the last part of the
body of the Will:
"x x x
The law referred to is article 618 of the Code of Civil
Procedure, as amended by Act No. 2645, which requires
that the attestation clause shall state the number of pages
or sheets upon which the will is written, which requirement
has been held to be mandatory as an effective safeguard
against the possibility of interpolation or omission of some
of the pages of the will to the prejudice of the heirs to
whom the property is intended to be bequeathed (In re Will
of Andrada, 42 Phil. 180; Uy Coque vs. Navas L. Sioca, 43
Phil., 405; Gumban vs. Gorcho, 50 Phil. 30; Quinto vs.
Morata, 54 Phil. 481; Echevarria vs. Sarmiento, 66 Phil.
611). The ratio decidendi of these cases seems to be that
the attestation clause must contain a statement of the
number of sheets or pages composing the will and that if
this is missing or is omitted, it will have the effect of
invalidating the will if the deficiency cannot be supplied, not
by evidence aliunde, but by a consideration or examination
of the will itself. But here the situation is different. While
the attestation clause does not state the number of sheets
or pages upon which the will is written, however, the last
part of the body of the will contains a statement that it is
composed of eight pages, which circumstance in our
opinion takes this case out of the rigid rule of construction
and places it within the realm of similar cases where a
broad and more liberal view has been adopted to prevent
the will of the testator from being defeated by purely
technical considerations." (page 165-165, supra)
(Underscoring supplied)
In "Apolonio Tabaoda versus Hon. Avelino Rosal, et
al." supra, the notarial acknowledgement in the Will states
the number of pages used in the:
"x x x
We have examined the will in question and noticed that the
attestation clause failed to state the number of pages used
in writing the will. This would have been a fatal defect were
it not for the fact that, in this case, it is discernible from the
entire will that it is really and actually composed of only two
pages duly signed by the testatrix and her instrumental
witnesses. As earlier stated, the first page which contains
the entirety of the testamentary dispositions is signed by
the testatrix at the end or at the bottom while the
instrumental witnesses signed at the left margin. The other
page which is marked as "Pagina dos" comprises the
attestation clause and the acknowledgment. The
acknowledgment itself states that "this Last Will and
Testament consists of two pages including this page"
(pages 200-201, supra) (Underscoring supplied).
However, in the appeal at bench, the number of pages used
in the will is not stated in any part of the Will. The will does
not even contain any notarial acknowledgment wherein the
number of pages of the will should be stated.21
17
Both Uy Coque and Andrada were decided prior to the
enactment of the Civil Code in 1950, at a time when the
statutory provision governing the formal requirement of
wills was Section
618 of the Code of Civil Procedure.22 Reliance on these
cases remains apropos, considering that the requirement
that the attestation state the number of pages of the will is
extant from Section 618.23 However, the enactment of the
Civil Code in 1950 did put in force a rule of interpretation of
the requirements of wills, at least insofar as the attestation
clause is concerned, that may vary from the philosophy that
governed these two cases. Article 809 of the Civil Code
states: "In the absence of bad faith, forgery, or fraud, or
undue and improper pressure and influence, defects and
imperfections in the form of attestation or in the language
used therein shall not render the will invalid if it is proved
that the will was in fact executed and attested in
substantial compliance with all the requirements of article
805."
In the same vein, petitioner cites the report of the Civil
Code Commission, which stated that "the underlying and
fundamental objective permeating the provisions on the
[law] on [wills] in this project consists in the [liberalization]
of the manner of their execution with the end in view of
giving the testator more [freedom] in [expressing] his last
wishes. This objective is in accord with the [modern
tendency] in respect to the formalities in the execution of
wills."24 However, petitioner conveniently omits the
qualification offered by the Code Commission in the very
same paragraph he cites from their report, that such
liberalization be "but with sufficient safeguards and
restrictions to prevent the commission of fraud and the
exercise of undue and improper pressure and influence
upon the testator."25
Caneda v. Court of Appeals26 features an extensive
discussion made by Justice Regalado, speaking for the
Court on the conflicting views on the manner of
interpretation of the legal formalities required in the
execution of the attestation clause in wills.27 Uy
Coque and Andrada are cited therein, along with several
other cases, as examples of the application of the rule of
strict construction.28 However, the Code Commission opted
to recommend a more liberal construction through the
"substantial compliance rule" under Article 809. A
cautionary note was struck though by Justice J.B.L. Reyes
as to how Article 809 should be applied:
x x x The rule must be limited to disregarding those defects
that can be supplied by an examination of the will itself:
whether all the pages are consecutively numbered; whether
the signatures appear in each and every page; whether the
subscribing witnesses are three or the will was notarized.
All these are facts that the will itself can reveal, and defects
or even omissions concerning them in the attestation
clause can be safely disregarded. But the total number of
pages, and whether all persons required to sign did so in
the presence of each other must substantially appear in
the attestation clause, being the only check against perjury
in the probate proceedings.29 (Emphasis supplied.)
The Court of Appeals did cite these comments by Justice
J.B.L. Reyes in its assailed decision, considering that the
failure to state the number of pages of the will in the
attestation clause is one of the defects which cannot be
simply disregarded. In Caneda itself, the Court refused to
allow the probate of a will whose attestation clause failed
to state that the witnesses subscribed their respective
signatures to the will in the presence of the testator and of
each other,30 the other omission cited by Justice J.B.L.
Reyes which to his estimation cannot be lightly disregarded.
Caneda suggested: "[I]t may thus be stated that the rule, as
it now stands, is that omission which can be supplied by an
examination of the will itself, without the need of resorting
to extrinsic evidence, will not be fatal and, correspondingly,
would not obstruct the allowance to probate of the will
being assailed. However, those omissions which cannot be
supplied except by evidence aliunde would result in the
invalidation of the attestation clause and ultimately, of the
will itself."31 Thus, a failure by the attestation clause to
state that the testator signed every page can be liberally
construed, since that fact can be checked by a visual
examination; while a failure by the attestation clause to
state that the witnesses signed in one another’s presence
should be considered a fatal flaw since the attestation is
the only textual guarantee of compliance.32
The failure of the attestation clause to state the number of
pages on which the will was written remains a fatal flaw,
despite Article 809. The purpose of the law in requiring the
clause to state the number of pages on which the will is
written is to safeguard against possible interpolation or
omission of one or some of its pages and to prevent any
increase or decrease in the pages.33 The failure to state the
number of pages equates with the absence of an averment
on the part of the instrumental witnesses as to how many
pages consisted the will, the execution of which they had
ostensibly just witnessed and subscribed to.
Following Caneda, there is substantial compliance with this
requirement if the will states elsewhere in it how many
pages it is comprised of, as was the situation
in Singson and Taboada. However, in this case, there could
have been no substantial compliance with the
requirements under Article 805 since there is no statement
in the attestation clause or anywhere in the will itself as to
the number of pages which comprise the will.
At the same time, Article 809 should not deviate from the
need to comply with the formal requirements as
enumerated under Article 805. Whatever the inclinations of
the members of the Code Commission in incorporating
Article 805, the fact remains that they saw fit to prescribe
substantially the same formal requisites as enumerated in
Section 618 of the Code of Civil Procedure, convinced that
these remained effective safeguards against the forgery or
intercalation of notarial wills.34 Compliance with these
requirements, however picayune in impression, affords the
public a high degree of comfort that the testator himself or
18
herself had decided to convey property post mortem in the
manner established in the will.35 The transcendent
legislative intent, even as expressed in the cited comments
of the Code Commission, is for the fruition of the testator’s
incontestable desires, and not for the indulgent admission
of wills to probate.
The Court could thus end here and affirm the Court of
Appeals. However, an examination of the will itself reveals a
couple of even more critical defects that should necessarily
lead to its rejection.
For one, the attestation clause was not signed by the
instrumental witnesses. While the signatures of the
instrumental witnesses appear on the left-hand margin of
the will, they do not appear at the bottom of the attestation
clause which after all consists of their averments before the
notary public.
Cagro v. Cagro36 is material on this point. As in this case,
"the signatures of the three witnesses to the will do not
appear at the bottom of the attestation clause, although
the page containing the same is signed by the witnesses on
the left-hand margin."37 While three (3)
Justices38 considered the signature requirement had been
substantially complied with, a majority of six (6), speaking
through Chief Justice Paras, ruled that the attestation
clause had not been duly signed, rendering the will fatally
defective.
There is no question that the signatures of the three
witnesses to the will do not appear at the bottom of the
attestation clause, although the page containing the same
is signed by the witnesses on the left-hand margin.
We are of the opinion that the position taken by the
appellant is correct. The attestation clause is "a
memorandum of the facts attending the execution of the
will" required by law to be made by the attesting witnesses,
and it must necessarily bear their signatures. An unsigned
attestation clause cannot be considered as an act of the
witnesses, since the omission of their signatures at the
bottom thereof negatives their participation.
The petitioner and appellee contends that signatures of the
three witnesses on the left-hand margin conform
substantially to the law and may be deemed as their
signatures to the attestation clause. This is untenable,
because said signatures are in compliance with the legal
mandate that the will be signed on the left-hand margin of
all its pages. If an attestation clause not signed by the three
witnesses at the bottom thereof, be admitted as sufficient,
it would be easy to add such clause to a will on a
subsequent occasion and in the absence of the testator
and any or all of the witnesses.39
The Court today reiterates the continued efficacy of Cagro.
Article 805 particularly segregates the requirement that the
instrumental witnesses sign each page of the will, from the
requisite that the will be "attested and subscribed by [the
instrumental witnesses]." The respective intents behind
these two classes of signature are distinct from each other.
The signatures on the left-hand corner of every page signify,
among others, that the witnesses are aware that the page
they are signing forms part of the will. On the other hand,
the signatures to the attestation clause establish that the
witnesses are referring to the statements contained in the
attestation clause itself. Indeed, the attestation clause is
separate and apart from the disposition of the will. An
unsigned attestation clause results in an unattested will.
Even if the instrumental witnesses signed the left-hand
margin of the page containing the unsigned attestation
clause, such signatures cannot demonstrate these
witnesses’ undertakings in the clause, since the signatures
that do appear on the page were directed towards a wholly
different avowal.
The Court may be more charitably disposed had the
witnesses in this case signed the attestation clause itself,
but not the left-hand margin of the page containing such
clause. Without diminishing the value of the instrumental
witnesses’ signatures on each and every page, the fact
must be noted that it is the attestation clause which
contains the utterances reduced into writing of the
testamentary witnesses themselves. It is the witnesses,
and not the testator, who are required under Article 805 to
state the number of pages used upon which the will is
written; the fact that the testator had signed the will and
every page thereof; and that they witnessed and signed the
will and all the pages thereof in the presence of the testator
and of one another. The only proof in the will that the
witnesses have stated these elemental facts would be their
signatures on the attestation clause.
Thus, the subject will cannot be considered to have been
validly attested to by the instrumental witnesses, as they
failed to sign the attestation clause.
Yet, there is another fatal defect to the will on which the
denial of this petition should also hinge. The requirement
under Article 806 that "every will must be acknowledged
before a notary public by the testator and the witnesses"
has also not been complied with. The importance of this
requirement is highlighted by the fact that it had been
segregated from the other requirements under Article 805
and entrusted into a separate provision, Article 806. The
non-observance of Article 806 in this case is equally as
critical as the other cited flaws in compliance with Article
805, and should be treated as of equivalent import.
In lieu of an acknowledgment, the notary public, Petronio Y.
Bautista, wrote "Nilagdaan ko at ninotario ko
ngayong 10 ng Hunyo 10 (sic), 1981 dito sa Lungsod ng
Maynila."40 By no manner of contemplation can those
words be construed as an acknowledgment. An
acknowledgment is the act of one who has executed a deed
in going before some competent officer or court and
declaring it to be his act or deed.41 It involves an extra step
undertaken whereby the signor actually declares to the
notary that the executor of a document has attested to the
notary that the same is his/her own free act and deed.
It might be possible to construe the averment as a jurat,
even though it does not hew to the usual language thereof.
19
A jurat is that part of an affidavit where the notary certifies
that before him/her, the document was subscribed and
sworn to by the executor.42 Ordinarily, the language of
the jurat should avow that the document was subscribed
and sworn before the notary public, while in this case, the
notary public averred that he himself "signed and
notarized" the document. Possibly though, the word
"ninotario" or "notarized" encompasses the signing of and
swearing in of the executors of the document, which in this
case would involve the decedent and the instrumental
witnesses.
Yet even if we consider what was affixed by the notary
public as a jurat, the will would nonetheless remain invalid,
as the express requirement of Article 806 is that the will be
"acknowledged", and not merely subscribed and sworn to.
The will does not present any textual proof, much less one
under oath, that the decedent and the instrumental
witnesses executed or signed the will as their own free act
or deed. The acknowledgment made in a will provides for
another all-important legal safeguard against spurious wills
or those made beyond the free consent of the testator. An
acknowledgement is not an empty meaningless act. 43 The
acknowledgment coerces the testator and the instrumental
witnesses to declare before an officer of the law that they
had executed and subscribed to the will as their own free
act or deed. Such declaration is under oath and under pain
of perjury, thus allowing for the criminal prosecution of
persons who participate in the execution of spurious wills,
or those executed without the free consent of the testator.
It also provides a further degree of assurance that the
testator is of certain mindset in making the testamentary
dispositions to those persons he/she had designated in the
will.
It may not have been said before, but we can assert the
rule, self-evident as it is under Article 806. A notarial will
that is not acknowledged before a notary public by the
testator and the witnesses is fatally defective, even if it is
subscribed and sworn to before a notary public.
There are two other requirements under Article 805 which
were not fully satisfied by the will in question. We need not
discuss them at length, as they are no longer material to
the
disposition of this case. The provision requires that the
testator and the instrumental witnesses sign each and
every page of the will on the left margin, except the last;
and that all the pages shall be numbered correlatively in
letters placed on the upper part of each page. In this case,
the decedent, unlike the witnesses, failed to sign both
pages of the will on the left margin, her only signature
appearing at the so-called "logical end"44 of the will on its
first page. Also, the will itself is not numbered correlatively
in letters on each page, but instead numbered with Arabic
numerals. There is a line of thought that has disabused the
notion that these two requirements be construed as
mandatory.45Taken in isolation, these omissions, by
themselves, may not be sufficient to deny probate to a will.
Yet even as these omissions are not decisive to the
adjudication of this case, they need not be dwelt on, though
indicative as they may be of a general lack of due regard for
the requirements under Article 805 by whoever executed
the will.
All told, the string of mortal defects which the will in
question suffers from makes the probate denial inexorable.
WHEREFORE, the petition is DENIED. Costs against
petitioner.
SO ORDERED.
G.R. No. L-32213 November 26, 1973
AGAPITA N. CRUZ, petitioner,
vs.
HON. JUDGE GUILLERMO P. VILLASOR, Presiding Judge of
Branch I, Court of First Instance of Cebu, and MANUEL B.
LUGAY, respondents.
Paul G. Gorrez for petitioner.
Mario D. Ortiz for respondent Manuel B. Lugay.
ESGUERRA, J.:
Petition to review on certiorari the judgment of the Court
First Instance of Cebu allowing the probate of the last will a
testament of the late Valente Z. Cruz. Petitioner-appellant
Agapita N. Cruz, the surviving spouse of the said decease
opposed the allowance of the will (Exhibit "E"), alleging the
will was executed through fraud, deceit, misrepresentation
and undue influence; that the said instrument was execute
without the testator having been fully informed of the
content thereof, particularly as to what properties he was
disposing and that the supposed last will and testament
was not executed in accordance with law. Notwithstanding
her objection, the Court allowed the probate of the said last
will and testament Hence this appeal by certiorari which
was given due course.
The only question presented for determination, on which
the decision of the case hinges, is whether the supposed
last will and testament of Valente Z. Cruz (Exhibit "E") was
executed in accordance with law, particularly Articles 805
and 806 of the new Civil Code, the first requiring at least
three credible witnesses to attest and subscribe to the will,
and the second requiring the testator and the witnesses to
acknowledge the will before a notary public.
Of the three instrumental witnesses thereto, namely
Deogracias T. Jamaloas Jr., Dr. Francisco Pañares and Atty.
Angel H. Teves, Jr., one of them, the last named, is at the
same time the Notary Public before whom the will was
supposed to have been acknowledged. Reduced to simpler
terms, the question was attested and subscribed by at least
three credible witnesses in the presence of the testator and
of each other, considering that the three attesting
witnesses must appear before the notary public to
20
acknowledge the same. As the third witness is the notary
public himself, petitioner argues that the result is that only
two witnesses appeared before the notary public to
acknowledge the will. On the other hand, private
respondent-appellee, Manuel B. Lugay, who is the
supposed executor of the will, following the reasoning of
the trial court, maintains that there is substantial
compliance with the legal requirement of having at least
three attesting witnesses even if the notary public acted as
one of them, bolstering up his stand with 57 American
Jurisprudence, p. 227 which, insofar as pertinent, reads as
follows:
It is said that there are, practical reasons for
upholding a will as against the purely technical
reason that one of the witnesses required by law
signed as certifying to an acknowledgment of the
testator's signature under oath rather than as
attesting the execution of the instrument.
After weighing the merits of the conflicting claims of the
parties, We are inclined to sustain that of the appellant that
the last will and testament in question was not executed in
accordance with law. The notary public before whom the
will was acknowledged cannot be considered as the third
instrumental witness since he cannot acknowledge before
himself his having signed the will. To acknowledge before
means to avow (Javellana v. Ledesma, 97 Phil. 258, 262;
Castro v. Castro, 100 Phil. 239, 247); to own as genuine, to
assent, to admit; and "before" means in front or preceding
in space or ahead of. (The New Webster Encyclopedic
Dictionary of the English Language, p. 72; Funk & Wagnalls
New Standard Dictionary of the English Language, p. 252;
Webster's New International Dictionary 2d. p. 245.)
Consequently, if the third witness were the notary public
himself, he would have to avow assent, or admit his having
signed the will in front of himself. This cannot be done
because he cannot split his personality into two so that one
will appear before the other to acknowledge his
participation in the making of the will. To permit such a
situation to obtain would be sanctioning a sheer absurdity.
Furthermore, the function of a notary public is, among
others, to guard against any illegal or immoral arrangement
Balinon v. De Leon, 50 0. G. 583.) That function would
defeated if the notary public were one of the attesting
instrumental witnesses. For them he would be interested
sustaining the validity of the will as it directly involves him
and the validity of his own act. It would place him in
inconsistent position and the very purpose of
acknowledgment, which is to minimize fraud (Report of
Code Commission p. 106-107), would be thwarted.
Admittedly, there are American precedents holding that
notary public may, in addition, act as a witness to the
executive of the document he has notarized. (Mahilum v.
Court Appeals, 64 0. G. 4017; 17 SCRA 482; Sawyer v. Cox,
43 Ill. 130). There are others holding that his signing
merely as notary in a will nonetheless makes him a witness
thereon (Ferguson v. Ferguson, 47 S. E. 2d. 346; In Re
Douglas Will, N. Y. S. 2d. 641; Ragsdal v. Hill, 269 S. W. 2d.
911, Tyson Utterback, 122 So. 496; In Re Baybee's Estate
160 N. 900; W. Merill v. Boal, 132 A. 721; See
also Trenwith v. Smallwood, 15 So. 1030). But these
authorities do not serve the purpose of the law in this
jurisdiction or are not decisive of the issue herein because
the notaries public and witnesses referred to aforecited
cases merely acted as instrumental, subscribing attesting
witnesses, and not as acknowledging witnesses. He the
notary public acted not only as attesting witness but also
acknowledging witness, a situation not envisaged by Article
805 of the Civil Code which reads:
ART. 806. Every will must be acknowledged before
a notary public by the testator and the witnesses.
The notary public shall not be required to retain a
copy of the will or file another with the office of the
Clerk of Court. [Emphasis supplied]
To allow the notary public to act as third witness, or one the
attesting and acknowledging witnesses, would have the
effect of having only two attesting witnesses to the will
which would be in contravention of the provisions of Article
80 be requiring at least three credible witnesses to act as
such and of Article 806 which requires that the testator and
the required number of witnesses must appear before the
notary public to acknowledge the will. The result would be,
as has been said, that only two witnesses appeared before
the notary public for or that purpose. In the circumstances,
the law would not be duly in observed.
FOR ALL THE FOREGOING, the judgment appealed from is
hereby reversed and the probate of the last will and
testament of Valente Z. Cruz (Exhibit "E") is declared not
valid and hereby set aside.
Cost against the appellee.
G.R. No. 74695 September 14, 1993
In the Matter of the Probate of the Last Will and Testament
of the Deceased Brigido Alvarado, CESAR
ALVARADO, petitioner,
vs.
HON. RAMON G. GAVIOLA, JR., Presiding Justice, HON. MA.
ROSARIO QUETULIO LOSA and HON. LEONOR INES
LUCIANO, Associate Justices, Intermediate Appellate Court,
First Division (Civil Cases), and BAYANI MA.
RINO, respondents.
Vicente R. Redor for petitioner.
Bayani Ma. Rino for and in his own behalf.
BELLOSILLO, J.:
Before us is an appeal from the Decision dated 11 April
19861 of the First Civil Cases Division of the then
Intermediate Appellate Court, now Court of Appeals, which
affirmed the Order dated 27 June 19832 of the Regional
Trial Court of Sta. Cruz, Laguna, admitting to probate the
21
last will and testament3 with codicil4 of the late Brigido
Alvarado.
On 5 November 1977, the 79-year old Brigido Alvarado
executed a notarial will entitled "Huling Habilin" wherein he
disinherited an illegitimate son (petitioner) and expressly
revoked a previously executed holographic will at the time
awaiting probate before Branch 4 of the Regional Trial
Court of sta. Cruz, Laguna.
As testified to by the three instrumental witnesses, the
notary public and by private respondent who were present
at the execution, the testator did not read the final draft of
the will himself. Instead, private respondent, as the lawyer
who drafted the eight-paged document, read the same
aloud in the presence of the testator, the three
instrumental witnesses and the notary public. The latter
four followed the reading with their own respective copies
previously furnished them.
Meanwhile, Brigido's holographic will was subsequently
admitted to probate on 9 December 1977. On the 29th day
of the same month, a codicil entitled "Kasulatan ng
Pagbabago sa Ilang Pagpapasiya na Nasasaad sa Huling
Habilin na may Petsa Nobiembre 5, 1977 ni Brigido
Alvarado" was executed changing some dispositions in the
notarial will to generate cash for the testator's eye
operation. Brigido was then suffering from glaucoma. But
the disinheritance and revocatory clauses were unchanged.
As in the case of the notarial will, the testator did not
personally read the final draft of the codicil. Instead, it was
private respondent who read it aloud in his presence and in
the presence of the three instrumental witnesses (same as
those of the notarial will) and the notary public who
followed the reading using their own copies.
A petition for the probate of the notarial will and codicil was
filed upon the testator's death on 3 January 1979 by
private respondent as executor with the Court of First
Instance, now Regional Trial Court, of Siniloan,
Laguna.5Petitioner, in turn, filed an Opposition on the
following grounds: that the will sought to be probated was
not executed and attested as required by law; that the
testator was insane or otherwise mentally incapacitated to
make a will at the time of its execution due to senility and
old age; that the will was executed under duress, or
influence of fear and threats; that it was procured by undue
and improper pressure and influence on the part of the
beneficiary who stands to get the lion's share of the
testator's estate; and lastly, that the signature of the
testator was procured by fraud or trick.
When the oppositor (petitioner) failed to substantiate the
grounds relied upon in the Opposition, a Probate Order was
issued on 27 June 1983 from which an appeal was made
to respondent court. The main thrust of the appeal was that
the deceased was blind within the meaning of the law at
the time his "Huling Habilin" and the codicil attached
thereto was executed; that since the reading required by
Art. 808 of the Civil Code was admittedly not complied with,
probate of the deceased's last will and codicil should have
been denied.
On 11 April 1986, the Court of Appeals rendered the
decision under review with the following findings: that
Brigido Alvarado was not blind at the time his last will and
codicil were executed; that assuming his blindness, the
reading requirement of Art. 808 was substantially complied
with when both documents were read aloud to the testator
with each of the three instrumental witnesses and the
notary public following the reading with their respective
copies of the instruments. The appellate court then
concluded that although Art. 808 was not followed to the
letter, there was substantial compliance since its purpose
of making known to the testator the contents of the drafted
will was served.
The issues now before us can be stated thus: Was Brigido
Alvarado blind for purpose of Art, 808 at the time his
"Huling Habilin" and its codicil were executed? If so, was
the double-reading requirement of said article complied
with?
Regarding the first issue, there is no dispute on the
following facts: Brigido Alvarado was not totally blind at the
time the will and codicil were executed. However, his vision
on both eyes was only of "counting fingers at three (3) feet"
by reason of the glaucoma which he had been suffering
from for several years and even prior to his first
consultation with an eye specialist on
14 December 1977.
The point of dispute is whether the foregoing circumstances
would qualify Brigido as a "blind" testator under Art. 808
which reads:
Art. 808. If the testator is blind, the will shall be
read to him twice; once, by one of the subscribing
witnesses, and again, by the notary public before
whom the will is acknowledged.
Petitioner contends that although his father was not totally
blind when the will and codicil were executed, he can be so
considered within the scope of the term as it is used in Art.
808. To support his stand, petitioner presented before the
trial court a medical certificate issued by Dr. Salvador R.
Salceda, Director of the Institute of Opthalmology
(Philippine Eye Research Institute),6 the contents of which
were interpreted in layman's terms by Dr. Ruperto Roasa,
whose expertise was admitted by private respondent.7 Dr.
Roasa explained that although the testator could visualize
fingers at three (3) feet, he could no longer read either
printed or handwritten matters as of 14 December 1977,
the day of his first consultation.8
On the other hand, the Court of Appeals, contrary to the
medical testimony, held that the testator could still read on
the day the will and the codicil were executed but chose not
to do so because of "poor eyesight."9 Since the testator was
still capable of reading at that time, the court a
quo concluded that Art. 808 need not be complied with.
We agree with petitioner in this respect.
22
Regardless of respondent's staunch contention that the
testator was still capable of reading at the time his will and
codicil were prepared, the fact remains and this was
testified to by his witnesses, that Brigido did not do so
because of his "poor," 10 "defective," 11 or "blurred"12 vision
making it necessary for private respondent to do the actual
reading for him.
The following pronouncement in Garcia
vs. Vasquez 13 provides an insight into the scope of the
term "blindness" as used in Art. 808, to wit:
The rationale behind the requirement of reading
the will to the testator if he is blind or incapable of
reading the will himself (as when he is illiterate), is
to make the provisions thereof known to him, so
that he may be able to object if they are not in
accordance with his wishes . . .
Clear from the foregoing is that Art. 808 applies not only to
blind testators but also to those who, for one reason or
another, are "incapable of reading the(ir) will(s)." Since
Brigido Alvarado was incapable of reading the final drafts of
his will and codicil on the separate occasions of their
execution due to his "poor," "defective," or "blurred" vision,
there can be no other course for us but to conclude that
Brigido Alvarado comes within the scope of the term "blind"
as it is used in Art. 808. Unless the contents were read to
him, he had no way of ascertaining whether or not the
lawyer who drafted the will and codicil did so confortably
with his instructions. Hence, to consider his will as validly
executed and entitled to probate, it is essential that we
ascertain whether Art. 808 had been complied with.
Article 808 requires that in case of testators like Brigido
Alvarado, the will shall be read twice; once, by one of the
instrumental witnesses and, again, by the notary public
before whom the will was acknowledged. The purpose is to
make known to the incapacitated testator the contents of
the document before signing and to give him an opportunity
to object if anything is contrary to his instructions.
That Art. 808 was not followed strictly is beyond cavil.
Instead of the notary public and an instrumental witness, it
was the lawyer (private respondent) who drafted the eight-
paged will and the five-paged codicil who read the same
aloud to the testator, and read them only once, not twice as
Art. 808 requires.
Private respondent however insists that there was
substantial compliance and that the single reading suffices
for purposes of the law. On the other hand, petitioner
maintains that the only valid compliance or compliance to
the letter and since it is admitted that neither the notary
public nor an instrumental witness read the contents of the
will and codicil to Brigido, probate of the latter's will and
codicil should have been disallowed.
We sustain private respondent's stand and necessarily, the
petition must be denied.
This Court has held in a number of occasions that
substantial compliance is acceptable where the purpose of
the law has been satisfied, the reason being that the
solemnities surrounding the execution of wills are intended
to protect the testator from all kinds of fraud and trickery
but are never intended to be so rigid and inflexible as to
destroy the testamentary privilege. 14
In the case at bar, private respondent read the testator's
will and codicil aloud in the presence of the testator, his
three instrumental witnesses, and the notary public. Prior
and subsequent thereto, the testator affirmed, upon being
asked, that the contents read corresponded with his
instructions. Only then did the signing and
acknowledgement take place. There is no evidence, and
petitioner does not so allege, that the contents of the will
and codicil were not sufficiently made known and
communicated to the testator. On the contrary, with respect
to the "Huling Habilin," the day of the execution was not the
first time that Brigido had affirmed the truth and
authenticity of the contents of the draft. The uncontradicted
testimony of Atty. Rino is that Brigido Alvarado already
acknowledged that the will was drafted in accordance with
his expressed wishes even prior to 5 November 1977 when
Atty. Rino went to the testator's residence precisely for the
purpose of securing his conformity to the draft. 15
Moreover, it was not only Atty. Rino who read the
documents on
5 November and 29 December 1977. The notary public
and the three instrumental witnesses likewise read the will
and codicil, albeit silently. Afterwards, Atty. Nonia de la
Pena (the notary public) and Dr. Crescente O. Evidente (one
of the three instrumental witnesses and the testator's
physician) asked the testator whether the contents of the
document were of his own free will. Brigido answered in the
affirmative. 16 With four persons following the reading word
for word with their own copies, it can be safely concluded
that the testator was reasonably assured that what was
read to him (those which he affirmed were in accordance
with his instructions), were the terms actually appearing on
the typewritten documents. This is especially true when we
consider the fact that the three instrumental witnesses
were persons known to the testator, one being his
physician (Dr. Evidente) and another (Potenciano C.
Ranieses) being known to him since childhood.
The spirit behind the law was served though the letter was
not. Although there should be strict compliance with the
substantial requirements of the law in order to insure the
authenticity of the will, the formal imperfections should be
brushed aside when they do not affect its purpose and
which, when taken into account, may only defeat the
testator's will. 17
As a final word to convince petitioner of the propriety of the
trial court's Probate Order and its affirmance by the Court of
Appeals, we quote the following pronouncement
in Abangan v. Abangan, 18 to wit:
The object of the solemnities surrounding the
execution of wills is to close the door against bad
23
 faith and fraud, to avoid the substitution of wills
and testaments and to guaranty their truth and
authenticity. Therefore the laws on the subject
should be interpreted in such a way as to attain
these primordial ends. But, on the other hand, also
one must not lose sight of the fact that it is not the
object of the law to restrain and curtail the
exercise of the right to make a will. So when an
interpretation already given assures such ends,
any other interpretation whatsoever, that adds
nothing but demands more requisites entirely
unnecessary, useless and frustrative of the
testator's will, must be disregarded(emphasis
supplied).
Brigido Alvarado had expressed his last wishes in clear and
unmistakable terms in his "Huling Habilin" and the codicil
attached thereto. We are unwilling to cast these aside fro
the mere reason that a legal requirement intended for his
protection was not followed strictly when such compliance
had been rendered unnecessary by the fact that the
purpose of the law, i.e., to make known to the incapacitated
testator the contents of the draft of his will, had already
been accomplished. To reiterate, substantial compliance
suffices where the purpose has been served.
WHEREFORE, the petition is DENIED and the assailed
Decision of respondent Court of Appeals dated 11 April
1986 is AFFIRMED. Considering the length of time that this
case has remained pending, this decision is immediately
executory. Costs against petitioner.
SO ORDERED.
G.R. No. 189984 November 12, 2012
IN THE MATTER OF THE PETITION FOR THE PROBATE OF
THE LAST WILL AND TESTAMENT OF ENRIQUE S. LOPEZ
RICHARD B. LOPEZ, Petitioner,
vs.
DIANA JEANNE LOPEZ, MARYBETH DE LEON and VICTORIA
L. TUAZON, Respondents.
RESOLUTION
PERLAS-BERNABE, J.:
This Petition for Review on Certiorari assails the March 30,
2009 Decision1 and October 22, 2009 Resolution2 of the
Court of Appeals (CA) in CA-G.R. CV No. 87064 which
affirmed the August 26, 2005 Decision3 of the Regional
Trial Court of Manila, Branch 42 (RTC), in SP. Proc. No. 99-
95225 disallowing the probate of the Last Will and
Testament of Enrique S. Lopez.
The Factual Antecedents
On June 21, 1999, Enrique S. Lopez (Enrique) died leaving
his wife, Wendy B. Lopez, and their four legitimate children,
namely, petitioner Richard B. Lopez (Richard) and the
respondents Diana Jeanne Lopez (Diana), Marybeth de
Leon (Marybeth) and Victoria L. Tuazon (Victoria) as
compulsory heirs. Before Enrique’s death, he executed a
Last Will and Testament4 on August 10, 1996 and
constituted Richard as his executor and administrator.
On September 27, 1999, Richard filed a petition for the
probate of his father's Last Will and Testament before the
RTC of Manila with prayer for the issuance of letters
testamentary in his favor. Marybeth opposed the petition
contending that the purported last will and testament was
not executed and attested as required by law, and that it
was procured by undue and improper pressure and
influence on the part of Richard. The said opposition was
also adopted by Victoria.
After submitting proofs of compliance with jurisdictional
requirements, Richard presented the attesting witnesses,
namely: Reynaldo Maneja; Romulo Monteiro; Ana Maria
Lourdes Manalo (Manalo); and the notary public who
notarized the will, Atty. Perfecto Nolasco (Atty. Nolasco).
The instrumental witnesses testified that after the late
Enrique read and signed the will on each and every page,
they also read and signed the same in the latter's presence
and of one another. Photographs of the incident 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.
Likewise, Atty. Nolasco claimed that Enrique had been his
client 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 that before the latter and the
attesting witnesses signed it in the presence of one
another, he translated the will which was written in English
to Filipino and added that Enrique was in good health and
of sound mind at that time.
On the other hand, the oppositors presented its lone
witness, Gregorio B. Paraon (Paraon), Officer-in-Charge of
the Notarial Section, Office of the Clerk of Court, RTC,
Manila. His testimony centered mainly on their findings that
Atty. Nolasco was not a notary public for the City of Manila
in 1996, which on cross examination was clarified after
Paraon discovered that Atty. Nolasco was commissioned as
such for the years 1994 to 1997.
Ruling of the RTC
In the Decision dated August 26, 2005,5 the RTC disallowed
the probate of the will for failure to comply with Article 805
of the Civil Code which requires a statement in the
attestation clause of the number of pages used upon which
the will is written. It held that while Article 809 of the same
Code requires mere substantial 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 will
with no evidence aliunde or extrinsic evidence required.
While the acknowledgment portion stated that the will
consists of 7 pages including the page on which the
24
ratification and acknowledgment are written, the RTC
observed that it has 8 pages including the acknowledgment
portion. As such, it disallowed the will for not having been
executed and attested in accordance with law.
Aggrieved, Richard filed a Notice of Appeal which the RTC
granted in the Order dated October 26, 2005. 6
Ruling of the Court of Appeals
On March 30, 2009,7 the CA issued the assailed decision
dismissing the appeal. It held that the RTC erroneously
granted Richard's appeal as the Rules of Court is explicit
that appeals in special proceedings, as in this case, must
be made through a record on appeal. Nevertheless, even
on the merits, the CA found no valid reason to deviate from
the findings of the RTC that the failure to state the number
of pages of the will in the attestation clause was fatal. It
noted that while Article 809 of the Civil Code sanctions
mere substantial compliance with the formal requirements
set forth in Article 805 thereof, there was a total omission
of such fact in the attestation clause. Moreover, while the
acknowledgment of the will made mention of "7 pages
including the page on which the ratification and
acknowledgment are written," the will had actually 8 pages
including the acknowledgment portion thus, necessitating
the presentation of evidence aliunde to explain the
discrepancy. Richard's motion for reconsideration from the
decision was likewise denied in the second assailed
Resolution8 dated October 22, 2009.
Hence, the instant petition assailing the propriety of the
CA's decision.
Ruling of the Court
The petition lacks merit.
The provisions of the Civil Code on Forms of Wills,
particularly, Articles 805 and 809 of the Civil Code provide:
ART. 805. Every will, other than a holographic will, must be
subscribed at the end thereof by the testator himself or by
the testator's name written by some other person in his
presence, and by his express direction, and attested and
subscribed by three or more credible witnesses in the
presence of the testator and of one another.
The testator or the person requested by him to write his
name and the instrumental witnesses of the will, shall also
sign, as aforesaid, each and every page thereof, except the
last, on the left margin, and all the pages shall be
numbered correlatively in letters placed on the upper part
of each page.
The attestation shall state the number of pages used upon
which the will is written, and the fact that the testator
signed the will and every page thereof, or caused some
other person to write his name, under his express direction,
in the presence of the instrumental witnesses, and that the
latter witnessed and signed the will and all the pages
thereof in the presence of the testator and of one another.
If the attestation clause is in a language not known to the
witnesses, it shall be interpreted to
them.1âwphi1 (underscoring supplied)
ART. 809. In the absence of bad faith, forgery, or fraud, or
undue and improper pressure and influence, defects and
imperfections in the form of attestation or in the language
used therein shall not render the will invalid if it is proved
that the will was in fact executed and attested in
substantial compliance with all the requirements of Article
805.
The law is clear that the attestation must state the number
of pages used upon which the will is written. The purpose of
the law is to safeguard against possible interpolation or
omission of one or some of its pages and prevent any
increase or decrease in the pages.9
While Article 809 allows substantial compliance for defects
in the form of the attestation clause, Richard likewise failed
in this respect. The statement in the Acknowledgment
portion of the subject last will and testament that it
"consists of 7 pages including the page on which the
ratification and acknowledgment are written"10 cannot be
deemed substantial compliance. The will actually consists
of 8 pages including its acknowledgment which discrepancy
cannot be explained by mere examination of the will itself
but through the presentation of evidence aliund.11 On this
score is the comment of Justice J.B.L. Reyes regarding the
application of Article 809, to wit:
x x x The rule must be limited to disregarding those defects
that can be supplied by an examination of the will itself:
whether all the pages are consecutively numbered; whether
the signatures appear in each and every page; whether the
subscribing witnesses are three or the will was notarized.
All these are facts that the will itself can reveal, and defects
or even omissions concerning them in the attestation
clause can be safely disregarded. But the total number of
pages, and whether all persons required to sign did so in
the presence of each other must substantially appear in the
attestation clause, being the only check against perjury in
the probate proceedings.12 (Emphasis supplied)
Hence, the CA properly sustained the disallowance of the
will. Moreover, it correctly ruled that Richard pursued the
wrong mode of appeal as Section 2(a), Rule 41 of the Rules
of Court explicitly provides that in special proceedings, as in
this case, the appeal shall be made by record on appeal.
WHEREFORE, premises considered, the petition is DENIED.
SO ORDERED.
25
G.R. No. L-3362 March 1, 1951
TESTATE estate of Carlos Gil, deceased. ISABEL HERREROS
VDA. DE GIL, administratrix-appellee,
vs.
PILAR GIL VDA. DE MURCIANO, oppositor-appellant.
Eligio C. Lagman for appellant.
Reyes, Albert and Agcaoili for appellee.
JUGO, J.:
The Court of First Instance of Manila admitted to probate
the alleged will and testament of the deceased Carlos Gil.
The oppositor Pilar Gil Vda. de Murciano appealed to this
Court, raising only question of law. Her counsel assigns the
two following alleged errors:
Primer Error. — El Juzgado inferior erro al dejar de
declarar que el alegado testamento de Carlos Gil
no ha sido otogar de acuerdo con la ley.
Segundo Error. — Erro finalmente a legalizar el
referido testamento.
The alleged will read as follows:
Primera Pagina (1)
EN EL NOMBRE DE DIOS, AMEN
Yo, Carlos Gil, de 66 años de edad, residente de
Porac, Pampanga, I. F., hallandome sano y en
pleno goce de mis facultades intelectuales, libre y
expontaneamente, sin violencia, coaccion, dolo o
influencia ilegal de persona extraña, otorgo y
ordeno este mi testamento y ultima voluntad en
castellano, idioma que poseo y entiendo, de la
manera siguiente:
1. Declaro que durante mi matrimonio con mi
esposa la hoy Isabel Herreros no tuvimos hijos;
2. Declaro que tengo propiedades situadas en
Manila y en la Provincia de Pampanga;
3. Doy y adjudico a mi querida esposa Isabel
Herretos todos mis bienes ya que muebles e
inmuebles situados en Manila y en Pampanga,
bajo la condicion de que cuando esta muera y si
hayan bienes remanentes heredadas por ella de
mi, que dichos bienes remanentes se adjudicaran
a Don Carlos Worrel.
4. Nombro como albacea de mis bienes despues
de mi 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 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 demas,
hoy en Porac, Pampanga, I. F., el dia 27 de Mayo
de mil novecientos treinta y nueve.
CARLOS GIL
Testificacion:
Segunda Pagina (2)
Nosotros los que suscribimos, todos mayores de
edad, certificamos: que el testamento que precede
este escrito en la lengua castellana que conoce la
testadora, compuesto de dos paginas utiles con la
clausula de atestiguamiento paginadas
correlativamente en letras y numeros en la parte
superior de la casilla, asi como todas las hojas del
mismo, en nuestra presencia y que cada uno de
nosotros hemos atestiguado y firmado dicho
documento y todas las hojas del mismo en
presencia del testador y en la de cada uno de
nosotros.
(Fdo.) ALFREDO T. RIVERA
(Fdo.) RAMON MENDIOLA
(Fdo.) MARIANO OMAÑA
Regarding the correctness and accuracy of the above-
copied alleged will, the court below said:
. . . The only copy available is a printed form
contained in the record appeal in case G.R. No. L-
254, entitled "Testate Estate of Carlos Gil; Isabel
Herreros Vda. de Gil, petitioner and
appellant vs. Roberto Toledo y Gil, oppositor and
appellee." Both parties are agreed that this is a
true and correct copy of the will. (P. 10, Record on
Appeal).
The appeal being only on questions of law the above finding
of the court below cannot be disputed. The conclusions of
law reached by said court are based on it. Moreover, the
finding is correctly based on the evidence of record. The
parties agreed that said copy is true and correct. If it were
otherwise, they would not have so agreed, considering that
the defect is of an essential character and is fatal to the
validity of the attestation clause.
It will be noted that the attestation clause above quoted
does not state that the alleged testor signed the will. It
declares only that it was signed by the witnesses. This is a
fatal defect, for the precise purpose of the attestation
clause is to certify that the testator signed the will, this
being the most essential element of 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 clerical
error for it effects the very essence of the clause. Alleged
26
errors may be overlooked or correct only in matters of form
which do not affect the substance of the statement.
It is claimed that the correction may be made by inference.
If we cure a deficiency by means of inferences, when are
we going to stop making inferences to supply fatal
deficiencies in wills? Where are we to draw the line?
Following that procedure we would be making
interpolations by inferences, implication, and even
by internal circumtantial evidence. This would be done in
the face of the clear, uniquivocal, language of the statute
as to how the attestation clause should be made. It is to be
supposed that the drafter of the alleged will read the clear
words of the statute when he prepared it. For the court to
supply alleged deficiencies would be against the evident
policy of the law. Section 618 of Act No. 190, before it was
amended, contained the following provision:
. . . But the absence of such form of attestation
shall not render the will invalid if it proven that the
will was in fact signed and attested as in this
section provided.
However, Act No. 2645 of the Philippine Legislature,
passed on July 1, 1916, besides increasing the contents of
the attestation clause, entirely suppressed the above-
quoted provision. This would show that the purpose of the
amending act was to surround the execution of a will with
greater guarantees and solemnities. Could we, in view of
this, hold that the court can cure alleged deficiencies by
inferences, implications, and internal circumstantial
evidence? Even in ordinary cases the law requires certain
requisities for the conclusiveness of circumstantial
evidence.
It is contended that the deficiency in the attestation clause
is cured by the last paragraph of the body of the alleged
will, which we have quoted above. At first glance, it is queer
that the alleged testator should have made an attestation
clause, which is the function of the witness. But the
important point is that he attests or certifies his own
signature, or, to be accurate, his signature certifies itself. It
is evident that one cannot certify his own signature, for it
does not increase the evidence of its authenticity. It would
be like lifting one's self by his own bootstraps.
Consequently, the last paragraph of the will cannot cure in
any way the fatal defect of the attestation clause of the
witnesses. Adding zero to an insufficient amount does not
make it sufficient.
It is said that the rules of statutory construction are
applicable to documents and wills. This is true, but said
rules apply to the body of the will, containing the
testamentary provisions, but not to the attestation clause,
which must be so clear that it should not require any
construction.
The parties have cited pro and con several decisions of the
Supreme Court, some of which are said to be rather strict
and others liberal, in the interpretation of section 618 of
Act No. 190, as amended by Act No. 2645.
In the case of Gumban vs. Gorecho (50 Phil., 30, 31), the
court had the following to say:
1. WILLS; ALLOWANCE OR DISALLOWANCE;
SECTIONS 618 AND 634 OF THE CODE OF CIVIL
PROCEDURE CONSTRUED. — The right to dispose
of the property by will is governed entirely by
statute. The law is here found in section 618 of the
Code of Civil Procedure, as amended. The law not
alone carefully makes use of the imperative, but
cautiously goes further and makes use of the
negative, to enforce legislative intention.
2. ID.; ID.; ATTESTATION. — The Philippine
authorities relating to the attestation clause to
wills reviewed. The cases of Saño vs.
Quintana ([1925], 48 Phil., 506), and Nayve vs.
Mojal and Aguilar ([1924], 47 Phil., 152),
particularly compared. The decision in In re Will of
Quintana, supra, adopted and reaffirmed. The
decision in Nayve vs. Mojal and Aguilar, supra,
modified.
3. ID.; ID.; ID.; ID. — The portion of section 618 of
the Code of Civil Procedure, as amended, which
provides that "The attestation clause shall state
the number of sheets or pages used, upon which
the will is written, and the fact that the testator
signed the will and every page thereof, or caused
some other person to write his name, under his
express direction, in the presence of three
witnesses, and the latter witnessed and signed the
will and all pages thereof in the presence of the
testator and of each other" applied and enforced.
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 the left margin
in the presence of the testator is defective, and
such a defect annuls the will.
(Sano vs. Quintana, supra.)
In the subsequent case of Quinto vs. Morata (54 Phil., 481,
482), Judge Manuel V. Moran, now Chief Justice of the
Supreme Court, in his decision made the following
pronouncement:
. . . En la clausula de atestiguamiento del
testamento en cuestion, se hace constar que los
testadores firmaron el testamento en presencia de
los tres testigos instrumentales y que estos
firmaron el testamento los unos en presencia de
los otros, pero no se hace constar que dichos
testigos firmaron el testamento enpresencia de los
testadores, ni que estos y aquellos firmaron todas
y cada una de las paginas del testamento los
primeros en presencia de los segundos y vice-
versa.
En su virtud, se deniega la solicitud en la que se
pide la legalizacion del alegado testamento Exhibit
27
 A de Gregorio Pueblo y Carmen Quinto, y se
declara que Gregorio Pueblo murio intestado.
The Supreme Court fully affirmed the decision, laying down
the following doctrine:
1. WILLS; ATTESTATION CLAUSE; EVIDENCE TO
SUPPLY DEFECTS OF. — The attestation clause
must be made in strict conformity with the
requirements of section 618 of Act No. 190, as
amended. Where said clause fails to show on its
face a full compliance with those requirements,
the defect constitutes sufficient ground for the
disallowance of the will. (Sano vs. Quintana, 48
Phil., 506; Gumban vs. Gorecho, 50 Phil., 30).
Evidence aliunde should not be admitted to
establish facts not appearing on the attestation
clause, and where said evidence has been
admitted it should not be given the effect intended.
(Uy Coque vs. Navas L. Sioca, 43 Phil., 405, 409.).
2. ID.; ID.; INTERPRETATION OF SECTION 618 OF
ACT NO. 190, AS AMENDED. — Section 618 of Act
No. 190, as amended, should be given a strict
interpretation in order to give effect to the
intention of the Legislature. Statutes prescribing
formalities to be observed in the execution of wills
are very strictly construed. Courts cannot supply
the defensive execution of will. (40 Cyc., p. 1079;
Uy Coque vs. Navas L. Sioca, supra.)
It is true that in subsequent decisions, the court has
somewhat relaxed the doctrine of the Gumban vs.
Gorcho case, supra, but not to the extent of validating an
attestation clause similar to that involved herein.
In the case of Aldaba vs. Roque (43 Phil., 378), the testatrix
signed the attestation clause which was complete, and it
was also signed by the two attesting witnesses. For this
reason, the court said:
In reality, it appears that it is the testatrix who
makes the declaration about the points contained
in the above described paragraph; however, as the
witnesses, together with the testatrix, have signed
the said declaration, we are of the opinion and so
hold that the words above quoted of the testament
constitute a sufficient compliance with the
requirements of section 1 of Act No. 2645 which
provides that: . . . (p. 381, supra.)
The attestation clause involved herein is very different.
In the case of Dischoso de Ticson vs. De Gorotiza (57 Phil.,
437), it was held that:
An attestation clause to a will, copied from a form
book and reading: "We, the undersigned attesting
witnesses, whose residences are stated opposite
our respective names, do hereby certify that the
testatrix, whose name is signed hereinabove, has
publish unto us the foregoing will consisting of two
pages as her Last Will and Testament, and has
signed the same in our presence, and in witness
whereof we have each signed the same and each
page thereof in the presence of said testatrix and
in the presence of each other," held not to be
fatally defective and to conform to the law.
This very different from the attestation clause in the case at
bar.
In the case of Grey vs. Fabie * (40 Off. Gaz., 1st
Supplement, 196, No. 3, May 23, 1939), the will was
objected to on the ground that, although the attestation
clause stated that "each of the pages of which the said will
is composed" was signed by the testatrix at the left margin
and at the foot of the fifth page, it did not state that the
signature was made in the presence of the witnesses. It
was held, however, that said deficiency was cured by the
phrase "as well as by each of us in the presence of the
testatrix." The words "as well as" indicate that the testatrix
signed also in the presence of the witnesses, for the phrase
"as well as" in this case is equivalent to "also." The
language is clear and, unlike the attestation clause in the
present case, does not necessitate any correction. In the
body of the will the testatrix stated that she signed in the
presence of each and all of the three witnesses. This was
considered as a corroboration, but it was unnecessary.
In the case of Leynez vs. Leynez (40 Off. Gaz., 3rd
Supplement, 51, 52, No. 7, October 18, 1939; 68 Phil.,
745), the attestation clause reads as follows:
Suscrito y declarado por el testador Valerio Leynez,
como su ultima voluntad y testamento en
presencia de todos y cada uno de nosotros, y a
ruego de dicho testador, firmamos el presente
cada uno en presencia de los otros, o de los
demas y de la del mismo testsador, Valerio Leynez.
El testamento consta de dos (2) paginas
solamente.
The objection was that the attestation clause did not state
that the testator and the witnesses signed each and every
page of the will. This fact , however, appears in the will
itself. It is clear, therefore, that in case of the will complied
with all the requisites for its due execution. In the instant
case, essential words were omitted.
In the case of Alcala vs. De Villa 1 (40 Off. Gaz., 14th
Supplement, 131, 134-135, No. 23, April 18, 1939), the
attestation clause reads as follows:
Hacemos constar que en la fecha y pueblo arriba
mencionadios otorgo el Sr. Emiliano Alcala su
ultima voluntad o testamentao compuesto de
cuatro paginas incluida ya esta clasula de
atestiguamiento. Que estabamos presentes en el
momento de leer y ratificar el que el testamento
arriba mencionado es su ultima voluntad o
testamento compuesto de cuatro paginasen papel
de maquinilla. Que igualmente estabamos
presentes cuando el firmo este documento al pie
28
 del mismo y en el margen izquierdo de cada
pagina del testador tambien en presencia suya y
de cada uno de nosotros en cada pagina y en el
margen izquierdo de esta escritura o testamento.
En su testimonio firmamos abajo en prsencia del
testador y de cada uno de nosotros.
The above attestation clause is substantially perfect. The
only clerical error is that it says "testador" instead of
"testamento" in the phrase "cada pagina del testador." The
word "tambien" renders unnecessary the use of the verb
"firmamos."
In the case of Mendoza vs. Pilapil 2 (40 Off. Gaz., 1855, No.
9, June 27, 1941), the attestation clause did not state the
number of pages of the will. However, it was held that this
deficiency was cured by the will itself, which stated that it
consisted of three pages and in fact it had three pages.
In the case of Rallos vs. Rallos (44 Off. Gaz., 4938, 4940,
No. 12, October 23, 1947), decided by the Court of
Appeals, the attestation clause (translated in Spanish)
reads as follows:
Nosotros, los testigos, certificamos que este que
hemos firmado es el testamento y ultima voluntad,
que se ha redactado en cuatro paginas, de
Numeriano Rallos, quien despues de leer y de leer
y de leerle el mencionado testamento, y despues
de que ella dio su conformidad, firmo y marco con
su dedo pulgar derecho en nuestra presencia y en
presencia de cada uno de nosotros, que asimismo
cada uno de nosotros, los testigos, firmamos
enpresencia de la testadora y en presencia de
cada uno de nosotros.
It will be noticed that the only thing omitted is the
statement as to 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 different from that
involved in the present case.
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 property by will is not natural but
statutory, and statutory requirements should be satisfied.
The right to make a testamentary disposition of
one's property is purely of statutory creation, and is
available only upon the compliance with the
requirements of the statute. The formalities which
the Legislature has prescribed for the execution of
a will are essential to its validity, and cannot be
disregarded. The mode so prescribed is the
measure for the exercise of the right, and the heir
can be deprived of his inheritance only by a
compliance with this mode. For the purpose of
determining whether a will has been properly
executed, the intention of the testator in executing
it is entitled to no consideration. For that purpose
only intention of the Legislature, as expressed in
the language of the statute, can 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 Seaman's Estate,
80 Pac., 700, 701.)
In interpreting the legislature's thought, courts
have rigidly 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 cases, a decedent may have thought he had
made a will, but the statute says he had not. The
question is not one of his intention, but of what he
actually did, or . . . failed to do. . . . It may happen .
. . that . . . wills . . . truly expressing the intertions of
the testator are made without observations of the
required forms; and whenever that happens, the
genuine intention is frustrated. . . . The Legislature
. . . has taught of it best and has therefore
determined, to run the risk of frustrating (that
intention, . . . in preference to the risk of giving
effect to or facilitating the formation of spurious
wills, by the absence of forms. . . . The evil probably
to arise by giving to wills made without any form, . .
." or, in derogation of testator's wishes,
fraudulently imposing spurious wills on his effect
on his estate. Churchill's Estate, 260 Pac. 94, 101,
103 Atl. 533.
It has always been the policy of this court to
sustain a will if it is legally possible to do so, but we
cannot break down the legislative barriers
protecting a man's property after death, even if a
situation may be presented apparently meritorious.
(In Re: Maginn, 30 A. L. R., pp. 419, 420.)
In view of the foregoing, the decision appealed from is
reversed, denying the probate of the alleged will and
declaring intestate the estate of the deceased Carlos Gil.
With costs against the appellee. It is so ordered.
Moran, C.J., Pablo, Bengzon, Padilla and Reyes, JJ., concur.
29
G.R. No. 106720 September 15, 1994
SPOUSES ROBERTO AND THELMA AJERO, petitioners,
vs.
THE COURT OF APPEALS AND CLEMENTE
SAND, respondents.
Miguel D. Larida for petitioners.
Montilla Law Office for private respondent.
PUNO, J.:
This is an appeal by certiorari from the Decision of the
Court of
Appeals 1 in CA-G.R. CV No. 22840, dated March 30, 1992,
the dispositive portion of which reads;
PREMISES CONSIDERED, the questioned decision
of November 19, 1988 of the trial court is hereby
REVERSED and SET ASIDE, and the petition for
probate is hereby DISMISSED. No costs.
The earlier Decision was rendered by the RTC of Quezon
City, Branch 94, 2 in Sp. Proc. No. Q-37171, and the
instrument submitted for probate is the holographic will of
the late Annie Sand, who died on November 25, 1982.
In the will, decedent named as devisees, the following:
petitioners Roberto and Thelma Ajero, private respondent
Clemente Sand, Meriam S. Arong, Leah Sand, Lilia Sand,
Edgar Sand, Fe Sand, Lisa S. Sand, and Dr. Jose Ajero, Sr.,
and their children.
On January 20, 1983, petitioners instituted Sp. Proc. No. Q-
37171, for allowance of decedent's holographic will. They
alleged that at the time of its execution, she was of sound
and disposing mind, not acting under duress, fraud or
undue influence, and was in every respect capacitated to
dispose of her estate by will.
Private respondent opposed the petition on the grounds
that: neither the testament's body nor the signature therein
was in decedent's handwriting; it contained alterations and
corrections which were not duly signed by decedent; and,
the will was procured by petitioners through improper
pressure and undue influence. The petition was likewise
opposed by Dr. Jose Ajero. He contested the disposition in
the will of a house and lot located in Cabadbaran, Agusan
Del Norte. He claimed that said property could not be
conveyed by decedent in its entirety, as she was not its sole
owner.
Notwithstanding the oppositions, the trial court admitted
the decedent's holographic will to probate. It found, inter
alia:
Considering then that the probate proceedings
herein must decide only the question of identity of
the will, its due execution and the testamentary
capacity of the testatrix, this probate court finds no
reason at all for the disallowance of the will for its
failure to comply with the formalities prescribed by
law nor for lack of testamentary capacity of the
testatrix.
For one, no evidence was presented to show that
the will in question is different from the will
actually executed by the testatrix. The only
objections raised by the oppositors . . . are that the
will was not written in the handwriting of the
testatrix which properly refers to the question of its
due execution, and not to the question of identity
of will. No other will was alleged to have been
executed by the testatrix other than the will herein
presented. Hence, in the light of the evidence
adduced, the identity of the will presented for
probate must be accepted, i.e., the will submitted
in Court must be deemed to be the will actually
executed by the testatrix.
xxx xxx xxx
While the fact that it was entirely written, dated
and signed in the handwriting of the testatrix has
been disputed, the petitioners, however, have
satisfactorily shown in Court that the holographic
will in question was indeed written entirely, dated
and signed in the handwriting of the testatrix.
Three (3) witnesses who have convincingly shown
knowledge of the handwriting of the testatrix have
been presented and have explicitly and
categorically identified the handwriting with which
the holographic will in question was written to be
the genuine handwriting and signature of the
testatrix. Given then the aforesaid evidence, the
requirement of the law that the holographic will be
entirely written, dated and signed in the
handwriting of the testatrix has been complied
with.
xxx xxx xxx
As to the question of the testamentary capacity of
the testratix, (private respondent) Clemente Sand
himself has testified in Court that the testatrix was
completely in her sound mind when he visited her
during her birthday celebration in 1981, at or
around which time the holographic will in question
was executed by the testatrix. To be of sound mind,
it is sufficient that the testatrix, at the time of
making the will, knew the value of the estate to be
disposed of, the proper object of her bounty, and
the characterof the testamentary act . . . The will
itself shows that the testatrix even had detailed
knowledge of the nature of her estate. She even
identified the lot number and square meters of the
lots she had conveyed by will. The objects of her
bounty were likewise identified explicitly. And
considering that she had even written a nursing
book which contained the law and jurisprudence
on will and succession, there is more than
sufficient showing that she knows the character of
the testamentary act.
30
 In this wise, the question of identity of the will, its
due execution and the testamentary capacity of
the testatrix has to be resolved in favor of the
allowance of probate of the will submitted herein.
Likewise, no evidence was presented to show
sufficient reason for the disallowance of herein
holographic will. While it was alleged that the said
will was procured by undue and improper pressure
and influence on the part of the beneficiary or of
some other person, the evidence adduced have
not shown any instance where improper pressure
or influence was exerted on the testatrix. (Private
respondent) Clemente Sand has testified that the
testatrix was still alert at the time of the execution
of the will, i.e., at or around the time of her birth
anniversary celebration in 1981. It was also
established that she is a very intelligent person
and has a mind of her own. Her independence of
character and to some extent, her sense of
superiority, which has been testified to in Court, all
show the unlikelihood of her being unduly
influenced or improperly pressured to make the
aforesaid will. It must be noted that the undue
influence or improper pressure in question herein
only refer to the making of a will and not as to the
specific testamentary provisions therein which is
the proper subject of another proceeding. Hence,
under the circumstances, this Court cannot find
convincing reason for the disallowance of the will
herein.
Considering then that it is a well-established
doctrine in the law on succession that in case of
doubt, testate succession should be preferred over
intestate succession, and the fact that no
convincing grounds were presented and proven for
the disallowance of the holographic will of the late
Annie Sand, the aforesaid will submitted herein
must be admitted to probate. 3 (Citations omitted.)
On appeal, said Decision was reversed, and the petition for
probate of decedent's will was dismissed. The Court of
Appeals found that, "the holographic will fails to meet the
requirements for its validity." 4 It held that the decedent did
not comply with Articles 813 and 814 of the New Civil
Code, which read, as follows:
Art. 813: When a number of dispositions appearing
in a holographic will are signed without being
dated, and the last disposition has a signature and
date, such date validates the dispositions
preceding it, whatever be the time of prior
dispositions.
Art. 814: In case of insertion, cancellation, erasure
or alteration in a holographic will, the testator must
authenticate the same by his full signature.
It alluded to certain dispositions in the will which were
either unsigned and undated, or signed but not dated. It
also found that the erasures, alterations and cancellations
made thereon had not been authenticated by decedent.
Thus, this appeal which is impressed with merit.
Section 9, Rule 76 of the Rules of Court provides that will
shall be disallowed in any of the following cases:
(a) If not executed and attested as required by law;
(b) If the testator was insane, or otherwise mentally
incapable to make a will, at the time of its
execution;
(c) If it was executed under duress, or the influence
of fear, or threats;
(d) If it was procured by undue and improper
pressure and influence, on the part of the
beneficiary, or of some other person for his benefit;
(e) If the signature of the testator was procured by
fraud or trick, and he did not intend that the
instrument should be his will at the time of fixing
his signature thereto.
In the same vein, Article 839 of the New Civil Code reads:
Art. 839: The will shall be disallowed in any of the
following cases;
(1) If the formalities required by law have
not been complied with;
(2) If the testator was insane, or otherwise
mentally incapable of making a will, at the
time of its execution;
(3) If it was executed through force or
under duress, or the influence of fear, or
threats;
(4) If it was procured by undue and
improper pressure and influence, on the
part of the beneficiary or of some other
person;
(5) If the signature of the testator was
procured by fraud;
(6) If the testator acted by mistake or did
not intend that the instrument he signed
should be his will at the time of affixing his
signature thereto.
These lists are exclusive; no other grounds can serve to
disallow a will. 5 Thus, in a petition to admit a holographic
will to probate, the only issues to be resolved are: (1)
whether the instrument submitted is, indeed, the
decedent's last will and testament; (2) whether said will
was executed in accordance with the formalities prescribed
by law; (3) whether the decedent had the necessary
testamentary capacity at the time the will was executed;
31
and, (4) whether the execution of the will and its signing
were the voluntary acts of the decedent. 6
In the case at bench, respondent court held that the
holographic will of Anne Sand was not executed in
accordance with the formalities prescribed by law. It held
that Articles 813 and 814 of the New Civil Code, ante, were
not complied with, hence, it disallowed the probate of said
will. This is erroneous.
We reiterate what we held in Abangan vs. Abangan, 40 Phil.
476, 479 (1919), that:
The object of the solemnities surrounding the
execution of wills is to close the door against bad
faith and fraud, to avoid substitution of wills and
testaments and to guaranty their truth and
authenticity. Therefore, the laws on this subject
should be interpreted in such a way as to attain
these primordial ends. But, on the other hand, also
one must not lose sight of the fact that it is not the
object of the law to restrain and curtail the
exercise of the right to make a will. So when an
interpretation already given assures such ends,
any other interpretation whatsoever, that adds
nothing but demands more requisites entirely
unnecessary, useless and frustrative of the
testator's last will, must be disregarded.
For purposes of probating non-holographic wills, these
formal solemnities include the subscription, attestation,
and acknowledgment requirements under Articles 805 and
806 of the New Civil Code.
In the case of holographic wills, on the other hand, what
assures authenticity is the requirement that they be totally
autographic or handwritten by the testator himself, 7 as
provided under Article 810 of the New Civil Code, thus:
A person may execute a holographic will which
must be entirely written, dated, and signed by the
hand of the testator himself. It is subject to no
other form, and may be made in or out of the
Philippines, and need not be witnessed. (Emphasis
supplied.)
Failure to strictly observe other formalities will not
result in the disallowance of a holographic will that
is unquestionably handwritten by the testator.
A reading of Article 813 of the New Civil Code shows that its
requirement affects the validity of the dispositions
contained in the holographic will, but not its probate. If the
testator fails to sign and date some of the dispositions, the
result is that these dispositions cannot be effectuated.
Such failure, however, does not render the whole testament
void.
Likewise, a holographic will can still be admitted to probate,
notwithstanding non-compliance with the provisions of
Article 814. In the case of Kalaw vs. Relova 132 SCRA 237
242 (1984), this Court held:
Ordinarily, when a number of erasures, corrections,
and interlineations made by the testator in a
holographic Will have not been noted under his
signature, . . . the Will is not thereby invalidated as
a whole, but at most only as respects the particular
words erased, corrected or interlined. Manresa
gave an identical commentary when he said "la
omission de la salvedad no anula el testamento,
segun la regla de jurisprudencia establecida en la
sentencia de 4 de Abril de 1985." 8 (Citations
omitted.)
Thus, unless the unauthenticated alterations, cancellations
or insertions were made on the date of the holographic will
or on testator's signature, 9 their presence does not
invalidate the will itself. 10 The lack of authentication will
only result in disallowance of such changes.
It is also proper to note that the requirements of
authentication of changes and signing and dating of
dispositions appear in provisions (Articles 813 and 814)
separate from that which provides for the necessary
conditions for the validity of the holographic will (Article
810). The distinction can be traced to Articles 678 and 688
of the Spanish Civil Code, from which the present
provisions covering holographic wills are taken. They read
as follows:
Art. 678: A will is called holographic when the
testator writes it himself in the form and with the
requisites required in Article 688.
Art. 688: Holographic wills may be executed only by
persons of full age.
In order that the will be valid it must be drawn on
stamped paper corresponding to the year of its
execution, written in its entirety by the testator and
signed by him, and must contain a statement of
the year, month and day of its execution.
If it should contain any erased, corrected, or
interlined words, the testator must identify them
over his signature.
Foreigners may execute holographic wills in their
own language.
This separation and distinction adds support to the
interpretation that only the requirements of Article 810 of
the New Civil Code — and not those found in Articles 813
and 814 of the same Code — are essential to the probate of
a holographic will.
The Court of Appeals further held that decedent Annie Sand
could not validly dispose of the house and lot located in
Cabadbaran, Agusan del Norte, in its entirety. This is
correct and must be affirmed.
As a general rule, courts in probate proceedings are limited
to pass only upon the extrinsic validity of the will sought to
be probated. However, in exceptional instances, courts are
32
not powerless to do what the situation constrains them to
do, and pass upon certain provisions of the will. 11 In the
case at bench, decedent herself indubitably stated in her
holographic will that the Cabadbaran property is in the
name of her late father, John H. Sand (which led oppositor
Dr. Jose Ajero to question her conveyance of the same in its
entirety). Thus, as correctly held by respondent court, she
cannot validly dispose of the whole property, which she
shares with her father's other heirs.
IN VIEW WHEREOF, the instant petition is GRANTED. The
Decision of the Court of Appeals in CA-G.R. CV No. 22840,
dated March 30, 1992, is REVERSED and SET ASIDE,
except with respect to the invalidity of the disposition of the
entire house and lot in Cabadbaran, Agusan del Norte. The
Decision of the Regional Trial Court of Quezon City, Branch
94 in Sp. Proc. No. Q-37171, dated November 19, 1988,
admitting to probate the holographic will of decedent Annie
Sand, is hereby REINSTATED, with the above qualification
as regards the Cabadbaran property. No costs.
SO ORDERED.
G.R. No. L-38338 January 28, 1985
IN THE MATTER OF THE INTESTATE ESTATE OF ANDRES G.
DE JESUS AND BIBIANA ROXAS DE JESUS, SIMEON R.
ROXAS & PEDRO ROXAS DE JESUS, petitioners,
vs.
ANDRES R. DE JESUS, JR., respondent.
Raul S. Sison Law Office for petitioners.
Rafael Dinglasan, Jr. for heir M. Roxas.
Ledesma, Guytingco Velasco and Associates for Ledesa
and A. R. de Jesus.
GUTIERREZ, JR., J.:
This is a petition for certiorari to set aside the order of
respondent Hon. Jose C. Colayco, Presiding Judge Court of
First Instance of Manila, Branch XXI disallowing the probate
of the holographic Will of the deceased Bibiana Roxas de
Jesus.
The antecedent facts which led to the filing of this petition
are undisputed.
After the death of spouses Andres G. de Jesus and Bibiana
Roxas de Jesus, Special Proceeding No. 81503 entitled "In
the Matter of the Intestate Estate of Andres G. de Jesus
and Bibiana Roxas de Jesus" was filed by petitioner Simeon
R. Roxas, the brother of the deceased Bibiana Roxas de
Jesus.
On March 26, 1973, petitioner Simeon R. Roxas was
appointed administrator. After Letters of Administration had
been granted to the petitioner, he delivered to the lower
court a document purporting to be the holographic Will of
the deceased Bibiana Roxas de Jesus. On May 26, 1973,
respondent Judge Jose Colayco set the hearing of the
probate of the holographic Win on July 21, 1973.
Petitioner Simeon R. Roxas testified that after his
appointment as administrator, he found a notebook
belonging to the deceased Bibiana R. de Jesus and that on
pages 21, 22, 23 and 24 thereof, a letter-win addressed to
her children and entirely written and signed in the
handwriting of the deceased Bibiana R. de Jesus was
found. The will is dated "FEB./61 " and states: "This is my
win which I want to be respected although it is not written
by a lawyer. ...
The testimony of Simeon R. Roxas was corroborated by the
testimonies of Pedro Roxas de Jesus and Manuel Roxas de
Jesus who likewise testified that the letter dated "FEB./61 "
is the holographic Will of their deceased mother, Bibiana R.
de Jesus. Both recognized the handwriting of their mother
and positively Identified her signature. They further testified
that their deceased mother understood English, the
language in which the holographic Will is written, and that
the date "FEB./61 " was the date when said Will was
executed by their mother.
Respondent Luz R. Henson, another compulsory heir filed
an "opposition to probate" assailing the purported
holographic Will of Bibiana R. de Jesus because a it was not
executed in accordance with law, (b) it was executed
through force, intimidation and/or under duress, undue
influence and improper pressure, and (c) the alleged
testatrix acted by mistake and/or did not intend, nor could
have intended the said Will to be her last Will and
testament at the time of its execution.
On August 24, 1973, respondent Judge Jose C. Colayco
issued an order allowing the probate of the holographic Will
which he found to have been duly executed in accordance
with law.
Respondent Luz Roxas de Jesus filed a motion for
reconsideration alleging inter alia that the alleged
holographic Will of the deceased Bibiana R. de Jesus was
not dated as required by Article 810 of the Civil Code. She
contends that the law requires that the Will should contain
the day, month and year of its execution and that this
should be strictly complied with.
On December 10, 1973, respondent Judge Colayco
reconsidered his earlier order and disallowed the probate
of the holographic Will on the ground that the word "dated"
has generally been held to include the month, day, and
year. The dispositive portion of the order reads:
WHEREFORE, the document purporting to be the
holographic Will of Bibiana Roxas de Jesus, is
hereby disallowed for not having been executed as
required by the law. The order of August 24, 1973
is hereby set aside.
The only issue is whether or not the date "FEB./61 "
appearing on the holographic Will of the deceased Bibiana
33
Roxas de Jesus is a valid compliance with the Article 810 of
the Civil Code which reads:
ART. 810. A person may execute a holographic will
which must be entirely written, dated, and signed
by the hand of the testator himself. It is subject to
no other form, and may be made in or out of the
Philippines, and need not be witnessed.
The petitioners contend that while Article 685 of the
Spanish Civil Code and Article 688 of the Old Civil Code
require the testator to state in his holographic Win the
"year, month, and day of its execution," the present Civil
Code omitted the phrase Año mes y dia and simply requires
that the holographic Will should be dated. The petitioners
submit that the liberal construction of the holographic Will
should prevail.
Respondent Luz Henson on the other hand submits that
the purported holographic Will is void for non-compliance
with Article 810 of the New Civil Code in that the date must
contain the year, month, and day of its execution. The
respondent contends that Article 810 of the Civil Code was
patterned after Section 1277 of the California Code and
Section 1588 of the Louisiana Code whose Supreme Courts
had consistently ruled that the required date includes the
year, month, and day, and that if any of these is wanting,
the holographic Will is invalid. The respondent further
contends that the petitioner cannot plead liberal
construction of Article 810 of the Civil Code because
statutes prescribing the formalities to be observed in the
execution of holographic Wills are strictly construed.
We agree with the petitioner.
This will not be the first time that this Court departs from a
strict and literal application of the statutory requirements
regarding the due execution of Wills. We should not
overlook the liberal trend of the Civil Code in the manner of
execution of Wills, the purpose of which, in case of doubt is
to prevent intestacy —
The underlying and fundamental objectives
permeating the provisions of the law on wigs in this
Project consists in the liberalization of the manner
of their execution with the end in view of giving the
testator more freedom in expressing his last
wishes, but with sufficien safeguards and
restrictions to prevent the commission of fraud and
the exercise of undue and improper pressure and
influence upon the testator.
This objective is in accord with the modem
tendency with respect to the formalities in the
execution of wills. (Report of the Code Commission,
p. 103)
In Justice Capistrano's concurring opinion in Heirs
of Raymundo Castro v. Bustos (27 SCRA 327) he
emphasized that:
xxx xxx xxx
... The law has a tender regard for the will of the
testator expressed in his last will and testament on
the ground that any disposition made by the
testator is better than that which the law can
make. For this reason, intestate succession is
nothing more than a disposition based upon the
presumed will of the decedent.
Thus, the prevailing policy is to require satisfaction of the
legal requirements in order to guard against fraud and bad
faith but without undue or unnecessary curtailment of
testamentary privilege Icasiano v. Icasiano, 11 SCRA 422).
If a Will has been executed in substantial compliance with
the formalities of the law, and the possibility of bad faith
and fraud in the exercise thereof is obviated, said Win
should be admitted to probate (Rey v. Cartagena 56 Phil.
282). Thus,
xxx xxx xxx
... More than anything else, the facts and
circumstances of record are to be considered in
the application of any given rule. If the surrounding
circumstances point to a regular execution of the
wilt and the instrument appears to have been
executed substantially in accordance with the
requirements of the law, the inclination should, in
the absence of any suggestion of bad faith, forgery
or fraud, lean towards its admission to probate,
although the document may suffer from some
imperfection of language, or other non-essential
defect. ... (Leynez v. Leynez 68 Phil. 745).
If the testator, in executing his Will, attempts to comply with
all the requisites, although compliance is not literal, it is
sufficient if the objective or purpose sought to be
accomplished by such requisite is actually attained by the
form followed by the testator.
The purpose of the solemnities surrounding the execution
of Wills has been expounded by this Court in Abangan v.
Abanga 40 Phil. 476, where we ruled that:
The object of the solemnities surrounding the
execution of wills is to close the door against bad
faith and fraud, to avoid substitution of wills and
testaments and to guaranty their truth and
authenticity. ...
In particular, a complete date is required to provide against
such contingencies as that of two competing Wills executed
on the same day, or of a testator becoming insane on the
day on which a Will was executed (Velasco v. Lopez, 1 Phil.
720). There is no such contingency in this case.
We have carefully reviewed the records of this case and
found no evidence of bad faith and fraud in its execution
nor was there any substitution of Wins and Testaments.
There is no question that the holographic Will of the
deceased Bibiana Roxas de Jesus was entirely written,
dated, and signed by the testatrix herself and in a language
known to her. There is also no question as to its
34
genuineness and due execution. All the children of the
testatrix agree on the genuineness of the holographic Will
of their mother and that she had the testamentary capacity
at the time of the execution of said Will. The objection
interposed by the oppositor-respondent Luz Henson is that
the holographic Will is fatally defective because the date
"FEB./61 " appearing on the holographic Will is not
sufficient compliance with Article 810 of the Civil Code. This
objection is too technical to be entertained.
As a general rule, the "date" in a holographic Will should
include the day, month, and year of its execution. However,
when as in the case at bar, there is no appearance of fraud,
bad faith, undue influence and pressure and the
authenticity of the Will is established and the only issue is
whether or not the date "FEB./61" appearing on the
holographic Will is a valid compliance with Article 810 of
the Civil Code, probate of the holographic Will should be
allowed under the principle of substantial compliance.
WHEREFORE, the instant petition is GRANTED. The order
appealed from is REVERSED and SET ASIDE and the order
allowing the probate of the holographic Will of the
deceased Bibiana Roxas de Jesus is reinstated.
SO ORDERED.
G.R. No. L-58509 December 7, 1982
IN THE MATTER OF THE PETITION TO APPROVE THE WILL
OF RICARDO B. BONILLA deceased, MARCELA
RODELAS, petitioner-appellant,
vs.
AMPARO ARANZA, ET AL., oppositors-appellees, ATTY.
LORENZO SUMULONG, intervenor.
Luciano A. Joson for petitioner-appellant.
Cesar Paralejo for oppositor-appellee.
RELOVA, J.:
This case was certified to this Tribunal by the Court of
Appeals for final determination pursuant to Section 3, Rule
50 of the Rules of Court.
As found by the Court of Appeals:
... On January 11, 1977, appellant filed a petition
with the Court of First Instance of Rizal for the
probate of the holographic will of Ricardo B. Bonilla
and the issuance of letters testamentary in her
favor. The petition, docketed as Sp. Proc. No.
8432, was opposed by the appellees Amparo
Aranza Bonilla, Wilferine Bonilla Treyes Expedita
Bonilla Frias and Ephraim Bonilla on the following
grounds:
(1) Appellant was estopped from claiming that the
deceased left a will by failing to produce the will
within twenty days of the death of the testator as
required by Rule 75, section 2 of the Rules of
Court;
(2) The alleged copy of the alleged holographic will
did not contain a disposition of property after
death and was not intended to take effect after
death, and therefore it was not a will
(3) The alleged hollographic will itself,and not an
alleged copy thereof, must be produced, otherwise
it would produce no effect, as held in Gam v. Yap,
104 Phil. 509; and
(4 ) The deceased did not leave any will,
holographic or otherwise, executed and attested as
required by law.
The appellees likewise moved for the consolidation
of the case with another case Sp. Proc. No, 8275).
Their motion was granted by the court in an order
dated April 4, 1977.
On November 13, 1978, following the
consolidation of the cases, the appellees moved
again to dismiss the petition for the probate of the
will. They argued that:
(1) The alleged holographic was not a last will but
merely an instruction as to the management and
improvement of the schools and colleges founded
by decedent Ricardo B. Bonilla; and
(2) Lost or destroyed holographic wills cannot be
proved by secondary evidence unlike ordinary wills.
Upon opposition of the appellant, the motion to
dismiss was denied by the court in its order of
February 23, 1979.
The appellees then filed a motion for
reconsideration on the ground that the order was
contrary to law and settled pronouncements and
rulings of the Supreme Court, to which the
appellant in turn filed an opposition. On July 23,
1979, the court set aside its order of February 23,
1979 and dismissed the petition for the probate of
the will of Ricardo B. Bonilla. The court said:
... It is our considered opinion that once the
original copy of the holographic will is lost, a copy
thereof cannot stand in lieu of the original.
In the case of Gam vs. Yap, 104 Phil. 509, 522,
the Supreme Court held that 'in the matter of
holographic wills the law, it is reasonable to
suppose, regards the document itself as the
material proof of authenticity of said wills.
MOREOVER, this Court notes that the alleged
holographic will was executed on January 25,
1962 while Ricardo B. Bonilla died on May 13,
1976. In view of the lapse of more than 14 years
35
 from the time of the execution of the will to the
death of the decedent, the fact that the original of
the will could not be located shows to our mind
that the decedent had discarded before his death
his allegedly missing Holographic Will.
Appellant's motion for reconsideration was denied. Hence,
an appeal to the Court of Appeals in which it is contended
that the dismissal of appellant's petition is contrary to law
and well-settled jurisprudence.
On July 7, 1980, appellees moved to forward the case to
this Court on the ground that the appeal does not involve
question of fact and alleged that the trial court committed
the following assigned errors:
I. THE LOWER COURT ERRED IN HOLDING THAT A LOST
HOLOGRAPHIC WILL MAY NOT BE PROVED BY A COPY
THEREOF;
II. THE LOWER COURT ERRED IN HOLDING THAT THE
DECEDENT HAS DISCARDED BEFORE HIS DEATH THE
MISSING HOLOGRAPHIC WILL;
III. THE LOWER COURT ERRED IN DISMISSING APPELLANT'S
WILL.
The only question here is whether a holographic will which
was lost or cannot be found can be proved by means of a
photostatic copy. Pursuant to Article 811 of the Civil Code,
probate of holographic wills is the allowance of the will by
the court after its due execution has been proved. The
probate may be uncontested or not. If uncontested, at least
one Identifying witness is required and, if no witness is
available, experts may be resorted to. If contested, at least
three Identifying witnesses are required. However, if the
holographic will has been lost or destroyed and no other
copy is available, the will can not be probated because the
best and only evidence is the handwriting of the testator in
said will. It is necessary that there be a comparison
between sample handwritten statements of the testator
and the handwritten will. But, a photostatic copy or xerox
copy of the holographic will may be allowed because
comparison can be made with the standard writings of the
testator. In the case of Gam vs. Yap, 104 PHIL. 509, the
Court ruled that "the execution and the contents of a lost or
destroyed holographic will may not be proved by the bare
testimony of witnesses who have seen and/or read such
will. The will itself must be presented; otherwise, it shall
produce no effect. The law regards the document itself as
material proof of authenticity." But, in Footnote 8 of said
decision, it says that "Perhaps it may be proved by a
photographic or photostatic copy. Even a mimeographed or
carbon copy; or by other similar means, if any, whereby the
authenticity of the handwriting of the deceased may be
exhibited and tested before the probate court," Evidently,
the photostatic or xerox copy of the lost or destroyed
holographic will may be admitted because then the
authenticity of the handwriting of the deceased can be
determined by the probate court.
WHEREFORE, the order of the lower court dated October 3,
1979, denying appellant's motion for reconsideration dated
August 9, 1979, of the Order dated July 23, 1979,
dismissing her petition to approve the will of the late
Ricardo B. Bonilla, is hereby SET ASIDE.
SO ORDERED.
G.R. Nos. 83843-44 April 5, 1990
IN THE MATTER OF THE PETITION TO APPROVE THE WILL
OF MELECIO LABRADOR. SAGRADO LABRADOR (Deceased),
substituted by ROSITA LABRADOR, ENRICA LABRADOR, and
CRISTOBAL LABRADOR, petitioners-appellants,
vs.
COURT OF APPEALS, 1 GAUDENCIO LABRADOR, and JESUS
LABRADOR, respondents-appellees.
Benjamin C. Santos Law Offices for petitioners.
Rodrigo V. Fontelera for private respondents.
PARAS, J.:
The sole issue in this case is whether or not the alleged
holographic will of one Melecio Labrador is dated, as
provided for in Article 8102 of the New Civil Code.
The antecedent and relevant facts are as follows: On June
10, 1972, Melecio Labrador died in the Municipality of Iba,
province of Zambales, where he was residing, leaving
behind a parcel of land designated as Lot No. 1916 under
Original Certificate of Title No. P-1652, and the following
heirs, namely: Sagrado, Enrica, Cristobal, Jesus, Gaudencio,
Josefina, Juliana, Hilaria and Jovita, all surnamed Labrador,
and a holographic will.
On July 28, 1975, Sagrado Labrador (now deceased but
substituted by his heirs), Enrica Labrador and Cristobal
Labrador, filed in the court a quo a petition for the probate
docketed as Special Proceeding No. 922-I of the alleged
holographic will of the late Melecio Labrador.
Subsequently, on September 30, 1975, Jesus Labrador
(now deceased but substituted by his heirs), and
Gaudencio Labrador filed an opposition to the petition on
the ground that the will has been extinguished or revoked
by implication of law, alleging therein that on September
30, 1971, that is, before Melecio's death, for the
consideration of Six Thousand (P6,000) Pesos, testator
Melecio executed a Deed of Absolute Sale, selling,
transferring and conveying in favor of oppositors Jesus and
Gaudencio Lot No. 1916 and that as a matter of fact, O.C.T.
No. P-1652 had been cancelled by T.C.T. No. T-21178.
Earlier however, in 1973, Jesus Labrador sold said parcel
of land to Navat for only Five Thousand (P5,000) Pesos.
(Rollo, p. 37)
Sagrado thereupon filed, on November 28, 1975, against
his brothers, Gaudencio and Jesus, for the annulment of
said purported Deed of Absolute Sale over a parcel of land
36
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. 934-I, being premised on the
fact that the aforesaid Deed of Absolute Sale is fictitious.
After both parties had rested and submitted their
respective evidence, the trial court rendered a joint
decision dated February 28, 1985, allowing the probate of
the holographic will and declaring null and void the Deed of
Absolute sale. The court a 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 by
the plaintiff-petitioner Sagrado with legal interest thereon
from December 20, 1976, when it was paid to vendee a
retro.
Respondents appealed the joint decision to the Court of
Appeals, which on March 10, 1988 modified said joint
decision of the court a quo by denying the allowance of the
probate of the will for being undated and reversing the
order of reimbursement. Petitioners' Motion for
Reconsideration of the aforesaid decision was denied by
the Court of Appeals, in the resolution of June 13, 1988.
Hence, this petition.
Petitioners now assign the following errors committed by
respondent court, to wit:
I in writing and it is this that should be followed and
THE COURT OF APPEALS ERRED IN NOT ALLOWING
AND APPROVING THE PROBATE OF THE
HOLOGRAPHIC WILL OF THE TESTATOR MELECIO
LABRADOR; and
II
THE COURT OF APPEALS ERRED IN FINDING THAT
THE ORDER OF THE LOWER COURT DIRECTING
THE REIMBURSEMENT OF THE FIVE THOUSAND
PESOS REPRESENTING THE REDEMPTION PRICE
WAS ERRONEOUS.
The alleged undated holographic will written in Ilocano
translated into English, is quoted as follows:
ENGLISH INTERPRETATION OF THE WILL OF THE
LATE MELECIO LABRADOR WRITTEN IN ILOCANO
BY ATTY. FIDENCIO L. FERNANDEZ
I — First Page
This is also where it appears in writing of the place
which is assigned and shared or the partition in
favor of SAGRADO LABRADOR which is the
fishpond located and known place as Tagale.
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 South is the
property and assignment share of ENRICA
LABRADOR, also their sister, and the boundary in
the West is the sea, known as the SEA as it is, and
the boundary on the NORTH is assignment
belonging to CRISTOBAL LABRADOR, who likewise
is also their brother. That because it is now the
time for me being now ninety three (93) years,
then I feel it is the right time for me to partition the
fishponds which were and had been bought or
acquired by us, meaning with their two mothers,
hence there shall be no differences among
themselves, those among brothers and sisters, for
it is I myself their father who am making the
apportionment and delivering to each and
everyone of them the said portion and assignment
so that there shall not be any cause of troubles or
differences among the brothers and sisters.
II — Second Page
And this is the day in which we agreed that we are
making the partitioning and assigning the
respective assignment of the said fishpond, and
this being in the month of March, 17th day, in the
year 1968, and this decision and or instruction of
mine is the matter to be followed. And the one who
made this writing is no other than MELECIO
LABRADOR, their father.
Now, this is the final disposition that I am making
complied with in order that any differences or
troubles may be forestalled and nothing will
happen along these troubles among my children,
and that they will be in good relations among
themselves, brothers and sisters;
And those improvements and fruits of the land;
mangoes, bamboos and all coconut trees and all
others like the other kind of bamboo by name of
Bayog, it is their right to get if they so need, in
order that there shall be nothing that anyone of
them shall complain against the other, and against
anyone of the brothers and sisters.
III — THIRD PAGE
And that referring to the other places of property,
where the said property is located, the same being
the fruits of our earnings of the two mothers of my
children, there shall be equal portion of each share
among themselves, and or to be benefitted with all
those property, which property we have been able
to acquire.
That in order that there shall be basis of the truth
of this writing (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
signature below hereof, and that this is what
should be complied with, by all the brothers and
sisters, the children of their two mothers —
37
 JULIANA QUINTERO PILARISA and CASIANA AQUINO
VILLANUEVA Your father who made this writing
(WILL), and he is, MELECIO LABRADOR y RALUTIN
(p. 46, Rollo)
The petition, which principally alleges that the holographic
will is really dated, although the date is not in its usual
place, is impressed with merit.
The will has been dated in the hand of the testator himself
in perfect compliance with Article 810.1âwphi1 It is worthy
of note to quote the first paragraph of the second page of
the holographic will, viz:
And this is the day in which we agreed that we are
making the partitioning and assigning the
respective assignment of the said fishpond, and
this being in the month of March, 17th day, in the
year 1968, and this decision and or instruction of
mine is the matter to be followed. And the one who
made this writing is no other than MELECIO
LABRADOR, their father. (emphasis supplied) (p.
46, Rollo)
The law does not specify a particular location where the
date should be placed in the will. The only requirements are
that the date be in the will itself and executed in the hand
of the testator. These requirements are present in the
subject will.
Respondents claim that the date 17 March 1968 in the will
was when the testator and his beneficiaries entered into an
agreement among themselves about "the partitioning and
assigning the respective assignments of the said fishpond,"
and was not the date of execution of the holographic will;
hence, the will is more of an "agreement" between the
testator and the beneficiaries thereof to the prejudice of
other compulsory heirs like the respondents. This was thus
a failure to comply with Article 783 which defines a will as
"an act whereby a person is permitted, with the formalities
prescribed by law, to control to a certain degree the
disposition of his estate, to take effect after his death."
Respondents are in error. The intention to show 17 March
1968 as 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 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 of partitioning
and the declaration that such partitioning as the testator's
instruction or decision to be followed reveal that Melecio
Labrador was fully aware of the nature of the estate
property to be disposed of and of the character of the
testamentary act as a means to control the disposition of
his estate.
Anent the second issue of finding the reimbursement of the
P5,000 representing the redemption price as erroneous,
respondent court's conclusion is incorrect. When private
respondents sold the property (fishpond) with right to
repurchase to Navat for P5,000, they were actually selling
property belonging to another and which they had no
authority to sell, rendering such sale null and void.
Petitioners, thus "redeemed" the property from Navat for
P5,000, to immediately regain possession of the property
for its disposition in accordance with the will. Petitioners
therefore deserve to be reimbursed the P5,000.
PREMISES CONSIDERED, the decision of the Court of
Appeals dated March 10, 1988 is hereby REVERSED. The
holographic will of Melecio Labrador is APPROVED and
ALLOWED probate. The private respondents are directed to
REIMBURSE the petitioners the sum of Five Thousand
Pesos (P5,000.00).
SO ORDERED.
G.R. No. L-40207 September 28, 1984
ROSA K. KALAW, petitioner,
vs.
HON. JUDGE BENJAMIN RELOVA, Presiding Judge of the CFI
of Batangas, Branch VI, Lipa City, and GREGORIO K.
KALAW, respondents.
Leandro H. Fernandez for petitioner.
Antonio Quintos and Jose M. Yacat for respondents.
MELENCIO-HERRERA, J.:
On September 1, 1971, private respondent GREGORIO K.
KALAW, claiming to be the sole heir of his deceased sister,
Natividad K. Kalaw, filed a petition before the Court of First
Instance of Batangas, Branch VI, Lipa City, for the probate
of her holographic Will executed on December 24, 1968.
The holographic Will reads in full as follows:
My Last will and Testament
In the name of God, Amen.
I Natividad K. Kalaw Filipino 63years of age, single, and a
resident of Lipa City, being of sound and disposing mind
and memory, do hereby declare thus to be my last will and
testament.
1. It is my will that I'll be burried in the cemetery of the
catholic church of Lipa City. In accordance with the rights of
said Church, and that my executrix hereinafter named
provide and erect at the expose of my state a suitable
monument to perpetuate my memory.
xxx xxx xxx
The holographic Will, as first written, named ROSA K.
Kalaw, a sister of the testatrix as her sole heir. Hence, on
November 10, 1971, petitioner ROSA K. Kalaw opposed
probate alleging, in substance, that the holographic Will
contained alterations, corrections, and insertions without
the proper authentication by the full signature of the
38
testatrix as required by Article 814 of the Civil Code
reading:
Art. 814. In case of any insertion, cancellation,
erasure or alteration in a holographic will the
testator must authenticate the same by his full
signature.
ROSA's position was that the holographic Will, as first
written, should be given effect and probated so that she
could be the sole heir thereunder.
After trial, respondent Judge denied probate in an Order,
dated September 3, 197 3, reading in part:
The document Exhibit "C" was submitted to the
National Bureau of Investigation for examination.
The NBI reported that the handwriting, the
signature, the insertions and/or additions and the
initial were made by one and the same person.
Consequently, Exhibit "C" was the handwriting of
the decedent, Natividad K. Kalaw. The only
question is whether the win, Exhibit 'C', should be
admitted to probate although the alterations
and/or insertions or additions above-mentioned
were not authenticated by the full signature of the
testatrix pursuant to Art. 814 of the Civil Code. The
petitioner contends that the oppositors are
estopped to assert the provision of Art. 814 on the
ground that they themselves agreed thru their
counsel to submit the Document to the NBI FOR
EXAMINATIONS. This is untenable. The parties did
not agree, nor was it impliedly understood, that the
oppositors would be in estoppel.
The Court finds, therefore, that the provision of
Article 814 of the Civil Code is applicable to Exhibit
"C". Finding the insertions, alterations and/or
additions in Exhibit "C" not to be authenticated by
the full signature of the testatrix Natividad K.
Kalaw, the Court will deny the admission to
probate of Exhibit "C".
WHEREFORE, the petition to probate Exhibit "C" as
the holographic will of Natividad K. Kalaw is hereby
denied.
SO ORDERED.
From that Order, GREGORIO moved for reconsideration
arguing that since the alterations and/or insertions were
the testatrix, the denial to probate of her holographic Will
would be contrary to her right of testamentary disposition.
Reconsideration was denied in an Order, dated November
2, 1973, on the ground that "Article 814 of the Civil Code
being , clear and explicit, (it) requires no necessity for
interpretation."
From that Order, dated September 3, 1973, denying
probate, and the Order dated November 2, 1973 denying
reconsideration, ROSA filed this Petition for Review on
certiorari on the sole legal question of whether or not
the original unaltered text after subsequent alterations and
insertions were voided by the Trial Court for lack of
authentication by the full signature of the testatrix, should
be probated or not, with her as sole heir.
Ordinarily, when a number of erasures, corrections, and
interlineations made by the testator in a holographic Will
litem not been noted under his signature, ... the Will is not
thereby invalidated as a whole, but at most only as respects
the particular words erased, corrected or
interlined.1 Manresa gave an Identical commentary when
he said "la omision de la salvedad no anula el testamento,
segun la regla de jurisprudencia establecida en la
sentencia de 4 de Abril de 1895." 2
However, when as in this case, the holographic Will in
dispute had only one substantial provision, which was
altered by substituting the original heir with another, but
which alteration did not carry the requisite of full
authentication by the full signature of the testator, the
effect must be that the entire Will is voided or revoked for
the simple reason that nothing remains in the Will after that
which could remain valid. To state that the Will as first
written should be given efficacy is to disregard the seeming
change of mind of the testatrix. But that change of mind
can neither be given effect because she failed to
authenticate it in the manner required by law by affixing her
full signature,
The ruling in Velasco, supra, must be held confined to such
insertions, cancellations, erasures or alterations in a
holographic Will, which affect only the efficacy of the
altered words themselves but not the essence and validity
of the Will itself. As it is, with the erasures, cancellations
and alterations made by the testatrix herein, her real
intention cannot be determined with certitude. As Manresa
had stated in his commentary on Article 688 of the Spanish
Civil Code, whence Article 814 of the new Civil Code was
derived:
... No infringe lo dispuesto en este articulo del
Codigo (el 688) la sentencia que no declara la
nulidad de un testamento olografo que contenga
palabras tachadas, enmendadas o entre renglones
no salvadas por el testador bajo su firnia segun
previene el parrafo tercero del mismo, porque, en
realidad, tal omision solo puede afectar a la
validez o eficacia de tales palabras, y nunca al
testamento mismo, ya por estar esa disposicion en
parrafo aparte de aquel que determine las
condiciones necesarias para la validez del
testamento olografo, ya porque, de admitir lo
contrario, se Ilegaria al absurdo de que pequefias
enmiendas no salvadas, que en nada afectasen a
la parte esencial y respectiva del testamento,
vinieran a anular este, y ya porque el precepto
contenido en dicho parrafo ha de entenderse en
perfecta armonia y congruencia con el art. 26 de la
ley del Notariado que declara nulas las adiciones
apostillas entrerrenglonados, raspaduras y
tachados en las escrituras matrices, siempre que
39
 no se salven en la forma prevenida, paro no el
documento que las contenga, y con mayor
motivo cuando las palabras enmendadas,
tachadas, o entrerrenglonadas no tengan
importancia ni susciten duda alguna acerca del
pensamiento del testador, o constituyan meros
accidentes de ortografia o de purez escrituraria,
sin trascendencia alguna(l).
Mas para que sea aplicable la doctrina de
excepcion contenida en este ultimo fallo, es
preciso que las tachaduras, enmiendas o
entrerrenglonados sin salvar saan de pala bras
que no afecter4 alteren ni uarien de modo
substancial la express voluntad del testador
manifiesta en el documento. Asi lo advierte la
sentencia de 29 de Noviembre de 1916, que
declara nulo un testamento olografo por no estar
salvada por el testador la enmienda del guarismo
ultimo del año en que fue extendido3(Emphasis
ours).
WHEREFORE, this Petition is hereby dismissed and the
Decision of respondent Judge, dated September 3, 1973, is
hereby affirmed in toto. No costs.
SO ORDERED.
G.R. No. 76714 June 2, 1994
SALUD TEODORO VDA. DE PEREZ, petitioner,
vs.
HON. ZOTICO A. TOLETE in his capacity as Presiding Judge,
Branch 18, RTC, Bulacan, respondent.
Natividad T. Perez for petitioner.
Benedicto T. Librojo for private respondents.
QUIASON, J.:
This is a petition for certiorari under Rule 65 of the Revised
Rules of Court to set aside the Order dated November 19,
1986 of the Regional Trial Court, Branch 18, Bulacan
presided by respondent Judge Zotico A. Tolete, in Special
Proceedings No. 1793-M.
We grant the petition.
II
Dr. Jose F. Cunanan and his wife, Dr. Evelyn Perez-
Cunanan, who became American citizens, established a
successful medical practice in New York, U.S.A. The
Cunanans lived at No. 2896 Citation Drive, Pompey,
Syracuse, New York, with their children, Jocelyn, 18;
Jacqueline, 16; and Josephine, 14.
On August 23, 1979, Dr. Cunanan executed a last will and
testament, bequeathing to his wife "all the remainder" of
his real and personal property at the time of his death
"wheresoever situated" (Rollo, p. 35). In the event he would
survive his wife, he bequeathed all his property to his
children and grandchildren with Dr. Rafael G. Cunanan, Jr.
as trustee. He appointed his wife as executrix of his last will
and testament and Dr. Rafael G. Cunanan, Jr. as substitute
executor. Article VIII of his will states:
If my wife, EVELYN PEREZ-CUNANAN, and I shall
die under such circumstances that there is not
sufficient evidence to determine the order of our
deaths, then it shall be presumed that I
predeceased her, and my estate shall be
administered and distributed, in all respects, in
accordance with such presumption (Rollo, p. 41).
Four days later, on August 27, Dr. Evelyn P. Cunanan
executed her own last will and testament containing the
same provisions as that of the will of her husband. Article
VIII of her will states:
If my husband, JOSE F. CUNANAN, and I shall die
under such circumstances that there is not
sufficient evidence to determine the order of our
deaths, then it shall be presumed that he
predeceased me, and my estate shall be
administered and distributed in all respects, in
accordance with such presumption. (Rollo, p. 31).
On January 9, 1982, Dr. Cunanan and his entire family
perished when they were trapped by fire that gutted their
home. Thereafter, Dr. Rafael G. Cunanan, Jr. as trustee and
substitute executor of the two wills, filed separate
proceedings for the probate thereof with the Surrogate
Court of the County of Onondaga, New York. On April 7,
these two wills were admitted to probate and letters
testamentary were issued in his favor.
On February 21, 1983, Salud Teodoro Perez, the mother of
Dr. Evelyn P. Cunanan, and petitioner herein, filed with the
Regional P. Cunanan, and petitioner herein, filed with the
Regional Trial Court, Malolos, Bulacan a petition for the
reprobate of the two bills ancillary to the probate
proceedings in New York. She also asked that she be
appointed the special administratrix of the estate of the
deceased couple consisting primarily of a farm land in San
Miguel, Bulacan.
On March 9, the Regional Trial Court, Branch 16, Malolos,
Bulacan, presided by Judge Gualberto J. de la Llana, issued
an order, directing the issuance of letters of special
administration in favor of petitioner upon her filing of a
P10,000.00 bond. The following day, petitioner posted the
bond and took her oath as special administration.
As her first act of administration, petitioner filed a motion,
praying that the Philippine Life Insurance Company be
directed to deliver the proceeds in the amount of
P50,000.00 of the life insurance policy taken by Dr. Jose F.
Cunanan with Dr. Evelyn Perez-Cunanan and their daughter
Jocelyn as beneficiaries. The trial court granted the motion.
40
Counsel for the Philippine American Life Insurance
Company then filed a manifestation, stating that said
company then filed a manifestation, stating that said
company had delivered to petitioner the amount of
P49,765.85, representing the proceeds of the life
insurance policy of Dr. Jose F. Cunanan.
In a motion dated May 19, 1983, petitioner asked that Dr.
Rafael Cunanan, Sr. be ordered to deliver to her a
Philippine Trust Company passbook with P25,594.00 in
savings deposit, and the Family Savings Bank time deposit
certificates in the total amount of P12,412.52.
On May 31, Atty. Federico Alday filed a notice of
appearance as counsel for the heirs of Dr. Jose F. Cunanan,
namely, Dr. Rafael Cunanan, Sr., Priscilla Cunanan
Bautista, Lydia Cunanan Ignacio, Felipe F. Cunanan and
Loreto Cunanan Concepcion (Cunanan heirs). He also
manifested that before receiving petitioner's motion of May
19, 1983, his clients were unaware of the filing of the
testate estate case and therefore, "in the interest of simple
fair play," they should be notified of the proceedings
(Records, p. 110). He prayed for deferment of the hearing
on the motions of May 19, 1983.
Petitioner then filed a counter manifestation dated June
13, 1983, asserting: (1) that the "Cunanan collaterals are
neither heirs nor creditors of the late Dr. Jose F. Cunanan"
and therefore, they had "no legal or proprietary interests to
protect" and "no right to intervene"; (2) that the wills of Dr.
Jose F. Cunanan and Dr. Evelyn Perez-Cunanan, being
American citizens, were executed in accordance with the
solemnities and formalities of New York laws, and produced
"effects in this jurisdiction in accordance with Art. 16 in
relation to Art. 816 of the Civil Code"; (3) that under Article
VIII of the two wills, it was presumed that the husband
predeceased the wife; and (4) that "the Cunanan collaterals
are neither distributees, legatees or beneficiaries, much
less, heirs as heirship is only by institution" under a will or
by operation of the law of New York (Records, pp. 112-
113).
On June 23, the probate court granted petitioner's motion
of May 19, 1983. However, on July 21, the Cunanan heirs
filed a motion to nullify the proceedings and to set aside
the appointment of, or to disqualify, petitioner as special
administratrix of the estates of Dr. Jose F. Cunanan and Dr.
Evelyn Perez-Cunanan. The motion stated: (1) that being
the "brothers and sisters and the legal and surviving heirs"
of Dr. Jose F. Cunanan, they had been "deliberately
excluded" in the petition for the probate of the separate
wills of the Cunanan spouses thereby misleading the
Bulacan court to believe that petitioner was the sole heir of
the spouses; that such "misrepresentation" deprived them
of their right to "due process in violation of Section 4, Rule
76 of the Revised Rules of Court; (2) that Dr. Rafael G.
Cunanan, Jr., the executor of the estate of the Cunanan
spouses, was likewise not notified of the hearings in the
Bulacan court; (3) that the "misrepresentation and
concealment committed by" petitioner rendered her unfit to
be a special administratrix; (4) that Dr. Rafael G. Cunanan,
Jr. had, by virtue of a verified power of attorney, authorized
his father,
Dr. Rafael Cunanan, Sr., to be his attorney-in-fact; and (5)
that Dr. Rafael Cunanan, Sr. is qualified to be a regular
administrator "as practically all of the subject estate in the
Philippines belongs to their brother, Dr. Jose F. Cunanan"
(Records, pp. 118-122). Hence, they prayed: (1) that the
proceedings in the case be declared null and void; (2) that
the appointment of petitioner as special administratrix be
set aside; and (3) that Dr. Rafael Cunanan, Sr. be
appointed the regular administrator of the estate of the
deceased spouses.
Thereafter, the Cunanan heirs filed a motion requiring
petitioner to submit an inventory or accounting of all
monies received by her in trust for the estate.
In her opposition, petitioner asserted: (1) that she was the
"sole and only heir" of her daughter, Dr. Evelyn Perez-
Cunanan to the exclusion of the "Cunanan collaterals";
hence they were complete strangers to the proceedings
and were not entitled to notice; (2) that she could not have
"concealed" the name and address of Dr. Rafael G.
Cunanan, Jr. because his name was prominently mentioned
not only in the two wills but also in the decrees of the
American surrogate court; (3) that the rule applicable to the
case is Rule 77, not Rule 76, because it involved the
allowance of wills proved outside of the Philippines and
that nowhere in Section 2 of Rule 77 is there a mention of
notice being given to the executor who, by the same
provision, should himself file the necessary ancillary
proceedings in this country; (4) that even if the Bulacan
estate came from the "capital" of Dr. Jose F. Cunanan, he
had willed all his worldly goods to his wife and nothing to
his brothers and sisters; and (5) that Dr. Rafael G.
Cunanan, Jr. had unlawfully disbursed $215,000.00 to the
Cunanan heirs, misappropriated $15,000.00 for himself
and irregularly assigned assets of the estates to his
American lawyer (Records, pp. 151-160).
In their reply, the Cunanan heirs stressed that on
November 24, 1982, petitioner and the Cunanan heirs had
entered into an agreement in the United States "to settle
and divide equally the estates," and that under Section 2 of
Rule 77 the "court shall fix a time and place for the hearing
and cause notice thereof to be given as in case of an
original will presented for allowance" (Records, pp. 184-
185).
Petitioner asked that Dr. Rafael G. Cunanan, Jr. be cited for
contempt of court for failure to comply with the Order of
June 23, 1983 and for appropriating money of the estate
for his own benefit. She also alleged that she had
impugned the agreement of November 24, 1982 before the
Surrogate Court of Onondaga, New York which rendered a
decision on April 13, 1983, finding that "all assets are
payable to Dr. Evelyn P. Cunanan’s executor to be then
distributed pursuant to EPTL4-1.1 subd [a] par [4]" (Rollo,
p. 52).
On their part, the Cunanan heirs replied that petitioner was
estopped from claiming that they were heirs by the
41
agreement to divide equally the estates. They asserted that
by virtue of Section 2 of Rule 77 of the Rules of Court, the
provisions of Sections 3, 4 and 5 of Rule 76 on the
requirement of notice to all heirs, executors, devisees and
legatees must be complied with. They reiterated their
prayer: (1) that the proceedings in the case be nullified; (2)
that petitioner be disqualified as special administratrix; (3)
that she be ordered to submit an inventory of all goods,
chattels and monies which she had received and to
surrender the same to the court; and (4) that Dr. Rafael
Cunanan, Sr. be appointed the regular administrator.
Petitioner filed a rejoinder, stating that in violation of the
April 13, 1983 decision of the American court Dr. Rafael G.
Cunanan, Jr. made "unauthorized disbursements from the
estates as early as July 7, 1982" (Records, p. 231).
Thereafter, petitioner moved for the suspension of the
proceedings as she had "to attend to the settlement
proceedings" of the estate of the Cunanan spouses in New
York (Records, p. 242). The Cunanans heirs opposed this
motion and filed a manifestation, stating that petitioner had
received $215,000.00 "from the Surrogate’s Court as part
of legacy" based on the aforesaid agreement of November
24, 1982 (Records, p. 248).
On February 21, 1984, Judge de la Llana issued an order,
disallowing the reprobate of the two wills, recalling the
appointment of petitioner as special administratrix,
requiring the submission of petitioner of an inventory of the
property received by her as special administratrix and
declaring all pending incidents moot and academic. Judge
de la Llana reasoned out that petitioner failed to prove the
law of New York on procedure and allowance of wills and
the court had no way of telling whether the wills were
executed in accordance with the law of New York. In the
absence of such evidence, the presumption is that the law
of succession of the foreign country is the same as the law
of the Philippines. However, he noted, that there were only
two witnesses to the wills of the Cunanan spouses and the
Philippine law requires three witnesses and that the wills
were not signed on each and every page, a requirement of
the Philippine law.
On August 27, 1985, petitioner filed a motion for
reconsideration of the Order dated February 21, 1984,
where she had sufficiently proven the applicable laws of
New York governing the execution of last wills and
testaments.
On the same day, Judge de la Llana issued another order,
denying the motion of petitioner for the suspension of the
proceedings but gave her 15 days upon arrival in the
country within which to act on the other order issued that
same day. Contending that the second portion of the
second order left its finality to the discretion of counsel for
petitioner, the Cunanans filed a motion for the
reconsideration of the objectionable portion of the said
order so that it would conform with the pertinent provisions
of the Judiciary Reorganization Act of 1980 and the Interim
Rules of Court.
On April 30, 1985, the respondent Judge of Branch 18 of
the Regional Trial Court, Malolos, to which the reprobate
case was reassigned, issued an order stating that "(W)hen
the last will and testament . . . was denied probate," the
case was terminated and therefore all orders theretofore
issued should be given finality. The same Order amended
the February 21, 1984 Order by requiring petitioner to turn
over to the estate the inventoried property. It considered
the proceedings for all intents and purposes, closed
(Records,
p. 302).
On August 12, petitioner filed a motion to resume
proceedings on account of the final settlement and
termination of the probate cases in New York. Three days
later, petitioner filed a motion praying for the
reconsideration of the Order of April 30, 1985 on the
strength of the February 21, 1984 Order granting her a
period of 15 days upon arrival in the country within which to
act on the denial of probate of the wills of the Cunanan
spouses. On August 19, respondent Judge granted the
motion and reconsidered the Order of April 30, 1985.
On August 29, counsel for petitioner, who happens to be
her daughter, Natividad, filed a motion praying that since
petitioner was ailing in Fort Lee, New Jersey, U.S.A. and
therefore incapacitated to act as special administratrix, she
(the counsel) should be named substitute special
administratrix. She also filed a motion for the
reconsideration of the Order of February 21, 1984, denying
probate to the wills of the Cunanan spouses, alleging that
respondent Judge "failed to appreciate the significant
probative value of the exhibits . . . which all refer to the
offer and admission to probate of the last wills of the
Cunanan spouses including all procedures undertaken and
decrees issued in connection with the said probate"
(Records, pp. 313-323).
Thereafter, the Cunanans heirs filed a motion for
reconsideration of the Order of August 19, 1985, alleging
lack of notice to their counsel.
On March 31, 1986, respondent Judge to which the case
was reassigned denied the motion for reconsideration
holding that the documents submitted by petitioner proved
"that the wills of the testator domiciled abroad were
properly executed, genuine and sufficient to possess real
and personal property; that letters testamentary were
issued; and that proceedings were held on a foreign
tribunal and proofs taken by a competent judge who
inquired into all the facts and circumstances and being
satisfied with his findings issued a decree admitting to
probate the wills in question." However, respondent Judge
said that the documents did not establish the law of New
York on the procedure and allowance of wills (Records, p.
381).
On April 9, 1986, petitioner filed a motion to allow her to
present further evidence on the foreign law. After the
hearing of the motion on April 25, 1986, respondent Judge
issued an order wherein he conceded that insufficiency of
evidence to prove the foreign law was not a fatal defect and
42
was curable by adducing additional evidence. He granted
petitioner 45 days to submit the evidence to that effect.
However, without waiting for petitioner to adduce the
additional evidence, respondent Judge ruled in his order
dated June 20, 1986 that he found "no compelling reason
to disturb its ruling of March 31, 1986" but allowed
petitioner to "file anew the appropriate probate proceedings
for each of the testator" (Records, p. 391).
The Order dated June 20, 1986 prompted petitioner to file
a second motion for reconsideration stating that she was
"ready to submit further evidence on the law obtaining in
the State of New York" and praying that she be granted "the
opportunity to present evidence on what the law of the
State of New York has on the probate and allowance of
wills" (Records, p. 393).
On July 18, respondent Judge denied the motion holding
that to allow the probate of two wills in a single proceeding
"would be a departure from the typical and established
mode of probate where one petition takes care of one will."
He pointed out that even in New York "where the wills in
question were first submitted for probate, they were dealt
with in separate proceedings" (Records, p. 395).
On August 13, 1986, petitioner filed a motion for the
reconsideration of the Order of July 18, 1986, citing Section
3, Rule 2 of the Rules of Court, which provides that no party
may institute more than one suit for a single cause of
action. She pointed out that separate proceedings for the
wills of the spouses which contain basically the same
provisions as they even named each other as a beneficiary
in their respective wills, would go against "the grain of
inexpensive, just and speedy determination of the
proceedings" (Records, pp. 405-407).
On September 11, 1986, petitioner filed a supplement to
the motion for reconsideration, citing Benigno v. De La
Peña, 57 Phil. 305 (1932) (Records,
p. 411), but respondent Judge found that this pleading had
been filed out of time and that the adverse party had not
been furnished with a copy thereof. In her compliance,
petitioner stated that she had furnished a copy of the
motion to the counsel of the Cunanan heirs and reiterated
her motion for a "final ruling on her supplemental motion"
(Records, p. 421).
On November 19, respondent Judge issued an order,
denying the motion for reconsideration filed by petitioner on
the grounds that "the probate of separate wills of two or
more different persons even if they are husband and wife
cannot be undertaken in a single petition" (Records, pp.
376-378).
Hence, petitioner instituted the instant petition, arguing
that the evidence offered at the hearing of April 11, 1983
sufficiently proved the laws of the State of New York on the
allowance of wills, and that the separate wills of the
Cunanan spouses need not be probated in separate
proceedings.
II
Petitioner contends that the following pieces of evidence
she had submitted before respondent Judge are sufficient
to warrant the allowance of the wills:
(a) two certificates of authentication of the
respective wills of Evelyn and Jose by the
Consulate General of the Philippines (Exhs. "F" and
"G");
(b) two certifications from the Secretary of State of
New York and Custodian of the Great Seal on the
facts that Judge Bernard L. Reagan is the
Surrogate of the Country of Onondaga which is a
court of record, that his signature and seal of office
are genuine, and that the Surrogate is duly
authorized to grant copy of the respective wills of
Evelyn and Jose
(Exhs. "F-1" and "G-1");
(c) two certificates of Judge Reagan and Chief
Clerk Donald E. Moore stating that they have in
their records and files the said wills which were
recorded on April 7, 1982 (Exhs. "F-2" and "G-2");
(d) the respective wills of Evelyn and Jose (Exhs. "F-
3", "F-6" and Exh. "G-3" — "G-6");
(e) certificates of Judge Reagan and the Chief Clerk
certifying to the genuineness and authenticity of
the exemplified copies of the two wills (Exhs. "F-7"
and "F-7");
(f) two certificates of authentication from the
Consulate General of the Philippines in New York
(Exh. "H" and "F").
(g) certifications from the Secretary of State that
Judge Reagan is duly authorized to grant
exemplified copies of the decree of probate, letters
testamentary and all proceedings had and proofs
duly taken
(Exhs. "H-1" and "I-1");
(h) certificates of Judge Reagan and the Chief
Clerk that letters testamentary were issued to
Rafael G. Cunanan (Exhs. "H-2" and "I-2");
(i) certification to the effect that it was during the
term of Judge Reagan that a decree admitting the
wills to probate had been issued and appointing
Rafael G. Cunanan as alternate executor (Exhs. "H-
3" and
"I-10");
(j) the decrees on probate of the two wills
specifying that proceedings were held and proofs
duly taken (Exhs. "H-4" and "I-5");
(k) decrees on probate of the two wills stating that
they were properly executed, genuine and valid
43
 and that the said instruments were admitted to
probate and established as wills valid to pass real
and personal property (Exhs. "H-5" and "I-5"); and
(l) certificates of Judge Reagan and the Chief Clerk
on the genuineness and authenticity of each
other’s signatures in the exemplified copies of the
decrees of probate, letters testamentary and
proceedings held in their court (Exhs. "H-6" and "I-
6") (Rollo, pp. 13-16).
Petitioner adds that the wills had been admitted to probate
in the Surrogate Court’s Decision of April 13, 1983 and that
the proceedings were terminated on November 29, 1984.
The respective wills of the Cunanan spouses, who were
American citizens, will only be effective in this country upon
compliance with the following provision of the Civil Code of
the Philippines:
Art. 816. The will of an alien who is abroad
produces effect in the Philippines if made with the
formalities prescribed by the law of the place in
which he resides, or according to the formalities
observed in his country, or in conformity with those
which this Code prescribes.
Thus, proof that both wills conform with the formalities
prescribed by New York laws or by Philippine laws is
imperative.
The evidence necessary for the reprobate or allowance of
wills which have been probated outside of the Philippines
are as follows: (1) the due execution of the will in
accordance with the foreign laws; (2) the testator has his
domicile in the foreign country and not in the Philippines;
(3) the will has been admitted to probate in such country;
(4) the fact that the foreign tribunal is a probate court, and
(5) the laws of a foreign country on procedure and
allowance of wills (III Moran Commentaries on the Rules of
Court, 1970 ed., pp. 419-429; Suntay v. Suntay, 95 Phil.
500 [1954]; Fluemer v. Hix, 54 Phil. 610 [1930]). Except
for the first and last requirements, the petitioner submitted
all the needed evidence.
The necessity of presenting evidence on the foreign laws
upon which the probate in the foreign country is based is
impelled by the fact that our courts cannot take judicial
notice of them (Philippine Commercial and Industrial Bank
v. Escolin, 56 SCRA 266 [1974]).
Petitioner must have perceived this omission as in fact she
moved for more time to submit the pertinent procedural
and substantive New York laws but which request
respondent Judge just glossed over. While the probate of a
will is a special proceeding wherein courts should relax the
rules on evidence, the goal is to receive the best evidence
of which the matter is susceptible before a purported will is
probated or denied probate (Vda. de Ramos v. Court of
Appeals, 81 SCRA 393 [1978]).
There is merit in petitioner’s insistence that the separate
wills of the Cunanan spouses should be probated jointly.
Respondent Judge’s view that the Rules on allowance of
wills is couched in singular terms and therefore should be
interpreted to mean that there should be separate probate
proceedings for the wills of the Cunanan spouses is too
literal and simplistic an approach. Such view overlooks the
provisions of Section 2, Rule 1 of the Revised Rules of
Court, which advise that the rules shall be "liberally
construed in order to promote their object and to assist the
parties in obtaining just, speedy, and inexpensive
determination of every action and proceeding."
A literal application of the Rules should be avoided if they
would only result in the delay in the administration of
justice (Acain v. Intermediate Appellate Court, 155 SCRA
100 [1987]; Roberts v. Leonidas, 129 SCRA 33 [1984]).
What the law expressly prohibits is the making of joint wills
either for the testator’s reciprocal benefit or for the benefit
of a third person (Civil Code of the Philippines, Article 818).
In the case at bench, the Cunanan spouses executed
separate wills. Since the two wills contain essentially the
same provisions and pertain to property which in all
probability are conjugal in nature, practical considerations
dictate their joint probate. As this Court has held a number
of times, it will always strive to settle the entire controversy
in a single proceeding leaving no root or branch to bear the
seeds of future litigation (Motoomull v. Dela Paz, 187 SCRA
743 [1990]).
This petition cannot be completely resolved without
touching on a very glaring fact — petitioner has always
considered herself the sole heir of
Dr. Evelyn Perez Cunanan and because she does not
consider herself an heir of Dr. Jose F. Cunanan, she
noticeably failed to notify his heirs of the filing of the
proceedings. Thus, even in the instant petition, she only
impleaded respondent Judge, forgetting that a judge whose
order is being assailed is merely a nominal or formal party
(Calderon v. Solicitor General, 215 SCRA 876 [1992]).
The rule that the court having jurisdiction over the
reprobate of a will shall "cause notice thereof to be given as
in case of an original will presented for allowance" (Revised
Rules of Court, Rule 27, Section 2) means that with regard
to notices, the will probated abroad should be treated as if
it were an "original will" or a will that is presented for
probate for the first time. Accordingly, compliance with
Sections 3 and 4 of Rule 76, which require publication and
notice by mail or personally to the "known heirs, legatees,
and devisees of the testator resident in the Philippines" and
to the executor, if he is not the petitioner, are required.
The brothers and sisters of Dr. Jose F. Cunanan, contrary to
petitioner's claim, are entitled to notices of the time and
place for proving the wills. Under Section 4 of Rule 76 of
the Revised Rules of Court, the "court shall also cause
copies of the notice of the time and place fixed for proving
the will to be addressed to the designated or other known
heirs, legatees, and devisees of the testator, . . . "
44
WHEREFORE, the questioned Order is SET ASIDE.
Respondent Judge shall allow petitioner reasonable time
within which to submit evidence needed for the joint
probate of the wills of the Cunanan spouses and see to it
that the brothers and sisters of Dr. Jose F. Cunanan are
given all notices and copies of all pleadings pertinent to the
probate proceedings.
SO ORDERED.
G.R. No. L-37453 May 25, 1979
RIZALINA GABRIEL GONZALES, petitioner,
vs.
HONORABLE COURT OF APPEALS and LUTGARDA
SANTIAGO, respondents.
Francisco D. Rilloraza, Jr. for petitioners.
Angel A. Sison for private respondent.
GUERRERO, J.:
This is a petition for review of the decision of the Court of
Appeals, First Division,1 promulgated on May 4, 1973 in CA
G.R. No. 36523-R which reversed the decision of the Court
of First Instance of Rizal dated December 15, 1964 and
allowed the probate of the last will and testament of the
deceased Isabel Gabriel. *
It appears that on June 24, 1961, herein private
respondent Lutgarda Santiago filed a petition with the
Court of First Instance of Rizal docketed as Special
Proceedings No. 3617, for the probate of a will alleged to
have been executed by the deceased Isabel Gabriel and
designating therein petitioner as the principal beneficiary
and executrix.
There is no dispute in the records that the late Isabel
Andres Gabriel died as a widow and without issue in the
municipality of Navotas, province of Rizal her place of
residence, on June 7, 1961 at the age of eighty-five (85),
having been born in 1876. It is likewise not controverted
that herein private respondent Lutgarda Santiago and
petitioner Rizalina Gabriel Gonzales are nieces of the
deceased, and that private respondent, with her husband
and children, lived with the deceased at the latters
residence prior an- d up to the time of her death.
The will submitted for probate, Exhibit "F", which is
typewritten and in Tagalog, appears to have been executed
in Manila on the 15th day of April, 1961, or barely two (2)
months prior to the death of Isabel Gabriel. It consists of
five (5) pages, including the pages whereon the attestation
clause and the acknowledgment of the notary public were
written. The signatures of the deceased Isabel Gabriel
appear at the end of the will on page four and at the left
margin of all the pages. The attestation clause, which is
found on page four, reads as follows:
PATUNAY NG MGA SAKSI
Kaming mga nakalagdang mga saksi o testigo na
ang aming mga 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 binubuo ng Limang Dahon (Five
Pages) pati na ang dahong ito, na siya niyang
TESTAMENTO AT HULING HABILIN, ngayong ika 15
ng Abril, 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 margin of each and every
page), sa harap ng lahat at bawat isa sa 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 patunay ng mga saksi at
sa kaliwang panig ng lahat at bawa't dahon ng
testamentong ito.
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 their respective places of
residence, 961 Highway 54, Philamlife, for Miss Orobia,
and 12 Dagala St., Navotas, Rizal, for the two Gimpayas.
Their signatures also appear on the left margin of all the
other pages. The WW is paged by typewritten words as
follows: "Unang Dahon" and underneath "(Page One)",
"Ikalawang Dahon" and underneath "(Page Two)", etc.,
appearing at the top of each page.
The will itself provides that the testatrix desired to be
buried in the Catholic Cemetery of Navotas, Rizal in
accordance with the rites of the Roman Catholic Church, all
expenses to be paid from her estate; that all her
obligations, if any, be paid; that legacies in specified
amounts be given to her sister, Praxides Gabriel Vda. de
Santiago, her brother Santiago Gabriel, and her nephews
and nieces, Benjamin, Salud, Rizalina (herein petitioner),
Victoria, Ester, Andres, all surnamed Gabriel, and
Evangeline, Rudyardo Rosa, Andrea, Marcial, Numancia,
Verena an surnamed Santiago. To herein private
respondent Lutgarda Santiago, who was described in the
will by the testatrix as "aking mahal na pamangkin na aking
pinalaki, inalagaan at minahal na katulad ng isang tunay na
anak" and named as universal heir and executor, were
bequeathed all properties and estate, real or personal
already acquired, or to be acquired, in her testatrix name,
after satisfying the expenses, debts and legacies as
aforementioned.
The petition was opposed by Rizalina Gabriel Gonzales,
herein petitioner, assailing the document purporting to be
the will of the deceased on the following grounds:
1. that the same is not genuine; and in the
alternative
45
 2. that the same was not executed and attested as
required by law;
3. that, at the time of the alleged execution of the
purported wilt the decedent lacked testamentary
capacity due to old age and sickness; and in the
second alternative
4. That the purported WW was procured through
undue and improper pressure and influence on the
part of the principal beneficiary, and/or of some
other person for her benefit.
Lutgarda Santiago filed her Answer to the Opposition on
February 1, 1962. After trial, the court a quo rendered
judgment, the summary and dispositive portions of which
read:
Passing in summary upon the grounds advanced
by the oppositor, this Court finds:
1. That there is no iota of evidence to support the
contentio that the purported will of the deceased
was procured through undue and improper
pressure and influence on the part of the
petitioner, or of some other person for her benefit;
2. That there is insufficient evidence to sustain the
contention that at the time of the alleged execution
of the purported will, the deceased lacked
testamentary capacity due to old age and sickness;
3. That sufficient and abundant evidence warrants
conclusively the fact that the purported will of the
deceased was not executed and attested as
required by law;
4. That the evidence is likewise conclusive that the
document presented for probate, Exhibit 'F' is not
the purported win allegedly dictated by the
deceased, executed and signed by her, and
attested by her three attesting witnesses on April
15, 1961.
WHEREFORE, Exhibit "F", the document presented
for probate as the last wig and testament of the
deceased Isabel Gabriel is here by DISALLOWED.
From this judgment of disallowance, Lutgarda Santiago
appealed to respondent Court, hence, the only issue
decided on appeal was whether or not the will in question
was executed and attested as required by law. The Court of
Appeals, upon consideration of the evidence adduced by
both parties, rendered the decision now under review,
holding that the will in question was signed and executed
by the deceased Isabel Gabriel on April 15, 1961 in the
presence of the three attesting witnesses, Matilde Orobia,
Celso Gimpaya and Maria Gimpaya, signing and witnessing
the document in the presence of the deceased and of each
other as required by law, hence allow ed probate.
Oppositor Rizalina Gabriel Gonzales moved for
reconsideration 3 of the aforesaid decision and such motion
was opposed 4 by petitioner-appellant Lutgarda Santiago.
Thereafter. parties submitted their respective
Memoranda, 5and on August 28, 1973, respondent Court,
Former Special First Division, by Resolution 6 denied the
motion for reconsideration stating that:
The oppositor-appellee contends that the
preponderance of evidence shows that the
supposed last wig and testament of Isabel Gabriel
was not executed in accordance with law because
the same was signed on several occasions, that
the testatrix did not sign the will in the presence of
all the instrumental witnesses did not sign the will
in the presence of each other.
The resolution of the factual issue raised in the
motion for reconsideration hinges on the
appreciation of the evidence. We have carefully re-
examined the oral and documentary evidence of
record, There is no reason to alter the findings of
fact in the decision of this Court sought to be set
aside. 7
In her petition before this Court, oppositor Rizalina Gabriel
Gonzales contends that respondent Court abused its
discretion and/or acted without or in excess of its
jurisdiction in reverssing the findings of fact and
conclusions of the trial court. The Court, after deliberating
on the petition but without giving due course resolved, in
the Resolution dated Oct. 11, 1973 to require the
respondents to comment thereon, which comment was
filed on Nov. 14, 1973. Upon consideration of the
allegations, the issues raised and the arguments adduced
in the petition, as well as the Comment 8 of private
respondent thereon, We denied the petition by Resolution
on November 26, 1973, 9 the question raised being factual
and for insufficient showing that the findings of fact by
respondent Court were unsupported by substantial
evidence.
Subsequently, or on December 17, 1973, petitioner Rim
Gabriel Goes fried a Motion for Reconsideration 10 which
private respondent answered by way of her Comment or
Opposition 11 filed on January 15, 1974. A Reply and
Rejoinder to Reply followed. Finally, on March 27, 1974,
We resolved to give due course to the petition.
The petitioner in her brief makes the following assignment
of errors:
I. The respondent Court of Appeals erred in holding that the
document, Exhibit "F" was executed and attested as
required by law when there was absolutely no proof that the
three instrumental witnesses were credible witness
II. The Court of Appeals erred in reversing the finding of the
lower court that the preparation and execution of the win
Exhibit "F", was unexpected and coincidental.
46
III. The Court of Appeals erred in finding that Atty, Paraiso
was not previously furnished with the names and residence
certificates of the witnesses as to enable him to type such
data into the document Exhibit "F".
IV. The Court of Appeals erred in holding that the fact that
the three typewritten lines under the typewritten words
"Pangalan" and "Tinitirahan" were left blank shows beyond
cavil that the three attesting witnesses were all present in
the same occasion.
V. The Court of Appeals erred in reversing the trial court's
finding that it was incredible that Isabel Gabriel could have
dictated the wilt Exhibit "F , without any note or document,
to Atty. Paraiso.
VI. The Court of Appeals erred in reversing the finding of the
trial court that Matilde Orobia was not physically present
when the Will Exhibit "F" was allegedly signed on April 15,
1961 by the deceased Isabel Gabriel and the other
witnesses Celso Gimpaya and Maria Gimpaya.
VII. The Court of Appeals erred in holding that the trial court
gave undue importance to the picture takings as proof that
the win was improperly executed.
VIII. The Court of Appeals erred in holding that the grave
contradictions, evasions, and misrepresentations of
witnesses (subscribing and notary) presented by the
petitioner had been explained away, and that the trial court
erred in rejecting said testimonies.
IX. The Court of Appeals acted in excess of its appellate
jurisdiction or has so far departed from the accepted and
usual course of judicial proceedings, as to call for an
exercise of the power of supervision.
X. The Court of Appeals erred in reversing the decision of
the trial court and admitting to probate Exhibit "F", the
alleged last will and testament of the deceased Isabel
Gabriel.
It will be noted from the above assignments of errors that
the same are substantially factual in character and content.
Hence, at the very outset, We must again state the oft-
repeated and well-established rule that in this jurisdiction,
the factual findings of the Court of Appeals are not
reviewable, the same being binding and conclusive on this
Court. This rule has been stated and reiterated in a long
line of cases enumerated in Chan vs. CA (L-27488, June
30, 1970, 33 SCRA 737, 743) 12 and Tapas vs. CA (L-
22202, February 27; 1976, 69 SCRA 393), 13 and in the
more recent cases of Baptisia vs. Carillo and CA (L32192,
July 30, 1976, 72 SCRA 214, 217) and Vda. de Catindig vs.
Heirs of Catalina Roque (L-25777, November 26, 1976, 74
SCRA 83, 88). In the case of Chan vs. CA, this Court said:
... from Guico v. Mayuga, a 1936 decision, the opinion
being penned by the then Justice Recto, it has been well-
settled that the jurisdiction of tills Court in cases brought to
us from the Court of Appeals is limited to reviewing and
revising the errors of law imputed to it, its findings of fact
being conclusive. More specifically, in a decision exactly a
month later, this Court, speaking through the then Justice
Laurel, it was held that the same principle is applicable,
even if the Court of Appeals was in disagreement with the
lower court as to the weight of the evidence with a
consequent reversal of its findings of fact ...
Stated otherwise, findings of facts by the Court of Appeals,
when supported by substantive evidence are not
reviewable on appeal by certiorari. Said findings of the
appellate court are final and cannot be disturbed by Us
particularly because its premises are borne out by the
record or based upon substantial evidence and what is
more, when such findings are correct. Assignments of
errors involving factual issues cannot be ventilated in a
review of the decision of the Court of Appeals because only
legal questions may be raised. The Supreme Court is not at
liberty to alter or modify the facts as set forth in the
decision of the Court of Appeals sought to be reversed.
Where the findings of the Court of Appeals are contrary to
those of the trial court, a minute scrutiny by the Supreme
Court is in order, and resort to duly-proven evidence
becomes necessary. The general rule We have thus stated
above is not without some recognized exceptions.
Having laid down the above legal precepts as Our
foundation, We now proceed to consider petitioner's
assignments of errors.
Petitioner, in her first assignment, contends that the
respondent Court of Appeals erred in holding that the
document, Exhibit "F", was executed and attested as
required by law when there was absolutely no proof that the
three instrumental witnesses were credible witnesses. She
argues that the require. ment in Article 806, Civil Code, that
the witnesses must be credible is an absolute requirement
which must be complied with before an alleged last will and
testament may be admitted to probate and that to be a
credible witness, there must be evidence on record that the
witness has a good standing in his community, or that he is
honest and upright, or reputed to be trustworthy and
reliable. According to petitioner, unless the qualifications of
the witness are first established, his testimony may not be
favorably considered. Petitioner contends that the term
"credible" is not synonymous with "competent" for a witness
may be competent under Article 820 and 821 of the Civil
Code and still not be credible as required by Article 805 of
the same Code. It is further urged that the term "credible"
as used in the Civil Code should receive the same settled
and well- known meaning it has under the Naturalization
Law, the latter being a kindred legislation with the Civil
Code provisions on wigs with respect to the qualifications of
witnesses.
We find no merit to petitioner's first assignment of error.
Article 820 of the Civil Code provides the qualifications of a
witness to the execution of wills while Article 821 sets forth
the disqualification from being a witness to a win. These
Articles state:
Art. 820. Any person of sound mind and of the age
of eighteen years or more, and not blind, deaf or
47
 dumb, and able to read and write, may be a
witness to the execution of a will mentioned in
article 806 of this Code. "Art. 821. The following
are disqualified from being witnesses to a will:
(1) Any person not domiciled in the Philippines,
(2) Those who have been convicted of falsification
of a document, perjury or false testimony.
Under the law, there is no mandatory requirement that the
witness testify initially or at any time during the trial as to
his good standing in the community, his reputation for
trustworthythiness and reliableness, his honesty and
uprightness in order that his testimony may be believed
and accepted by the trial court. It is enough that the
qualifications enumerated in Article 820 of the Civil Code
are complied with, such that the soundness of his mind can
be shown by or deduced from his answers to the questions
propounded to him, that his age (18 years or more) is
shown from his appearance, testimony , or competently
proved otherwise, as well as the fact that he is not blind,
deaf or dumb and that he is able to read and write to the
satisfaction of the Court, and that he has none of the
disqualifications under Article 821 of the Civil Code. We
reject petitioner's contention that it must first be
established in the record the good standing of the witness
in the community, his reputation for trustworthiness and
reliableness, his honesty and uprightness, because such
attributes are presumed of the witness unless the contrary
is proved otherwise by the opposing party.
We also reject as without merit petitioner's contention that
the term "credible" as used in the Civil Code should be
given the same meaning it has under the Naturalization
Law where the law is mandatory that the petition for
naturalization must be supported by two character
witnesses who must prove their good standing in the
community, reputation for trustworthiness and reliableness,
their honesty and uprightness. The two witnesses in a
petition for naturalization are character witnesses in that
being citizens of the Philippines, they personally know the
petitioner to be a resident of the Philippines for the period
of time required by the Act and a person of good repute and
morally irreproachable and that said petitioner has in their
opinion all the qualifications necessary to become a citizen
of the Philippines and is not in any way disqualified under
the provisions of the Naturalization Law (Section 7,
Commonwealth Act No. 473 as amended).
In probate proceedings, the instrumental witnesses are not
character witnesses for they merely attest the execution of
a will or testament and affirm the formalities attendant to
said execution. And We agree with the respondent that the
rulings laid down in the cases cited by petitioner concerning
character witnesses in naturalization proceedings are not
applicable to instrumental witnesses to wills executed
under the Civil Code of the Philippines.
In the case at bar, the finding that each and everyone of
the three instrumental witnesses, namely, Matilde Orobia,
Celso Gimpaya and Maria Gimpaya, are competent and
credible is satisfactorily supported by the evidence as
found by the respondent Court of Appeals, which findings of
fact this Tribunal is bound to accept and rely upon.
Moreover, petitioner has not pointed to any disqualification
of any of the said witnesses, much less has it been shown
that anyone of them is below 18 years of age, of unsound
mind, deaf or dumb, or cannot read or write.
It is true that under Article 805 of the New Civil Code, every
will, other than a holographic will, must be subscribed at
the end thereof by the testator himself or by the testator's
name written by some other person in his presence, and by
his express direction, and attested and subscribed by three
or more credible witnesses in the presence of the testator
and of one another, While the petitioner submits that
Article 820 and 821 of the New Civil Code speak of
the competency of a witness due to his qualifications under
the first Article and none of the disqualifications under the
second Article, whereas Article 805 requires the attestation
of three or more credible witnesses, petitioner concludes
that the term credible requires something more than just
being competent and, therefore, a witness in addition to
being competent under Articles 820 and 821 must also be
a credible witness under Article 805.
Petitioner cites American authorities that competency and
credibility of a witness are not synonymous terms and one
may be a competent witness and yet not a credible one.
She exacerbates that there is no evidence on record to
show that the instrumental witnesses are credible in
themselves, that is, that they are of good standing in the
community since one was a family driver by profession and
the second the wife of the driver, a housekeeper. It is true
that Celso Gimpaya was the driver of the testatrix and his
wife Maria Gimpaya, merely a housekeeper, and that
Matilde Orobia was a piano teacher to a grandchild of the
testatrix But the relation of employer and employee much
less the humble or financial position of a person do not
disqualify him to be a competent testamentary witness.
(Molo Pekson and Perez Nable vs. Tanchuco, et al., 100
Phil. 344; Testate Estate of Raymundo, Off. Gaz., March
18,1941, p. 788).
Private respondent maintains that the qualifications of the
three or more credible witnesses mentioned in Article 805
of the Civil Code are those mentioned in Article 820 of the
same Code, this being obvious from that portion of Article
820 which says "may be Q witness to the execution of a will
mentioned in Article 805 of this Code," and cites authorities
that the word "credible" insofar as witnesses to a will are
concerned simply means " competent." Thus, in the case
of Suntay vs. Suntay, 95 Phil. 500, the Supreme Court held
that "Granting that a will was duly executed and that it was
in existence at the time of, and not revoked before, the
death of the testator, still the provisions of the lost wig
must be clearly and distinctly proved by at least two
credible witnesses. 'Credible witnesses' mean competent
witnesses and not those who testify to facts from or upon
hearsay. " emphasis supplied).
48
In Molo Pekson and Perez Nable vs. Tanchuco, et al., 100
Phil. 344, the Supreme Court held that "Section 620 of the
same Code of Civil Procedure provides that any person of
sound mind, and of the age of eighteen years or more, and
not blind, deaf, or dumb and able to read and write, may be
a witness to the execution of a will. This same provision is
reproduced in our New Civil Code of 1950, under Art. 820.
The relation of employer and employee, or being a relative
to the beneficiary in a win, does not disqualify one to be a
witness to a will. The main qualification of a witness in the
attestation of wills, if other qualifications as to age, mental
capacity and literacy are present, is that said witness must
be credible, that is to say, his testimony may be entitled to
credence. There is a long line of authorities on this point, a
few of which we may cite:
A 'credible witness is one who is not is not to testify
by mental incapacity, crime, or other cause.
Historical Soc of Dauphin County vs. Kelker 74 A.
619, 226 Pix 16, 134 Am. St. Rep. 1010. (Words
and Phrases, Vol. 10, p. 340).
As construed by the common law, a 'credible
witness' to a will means a 'competent witness.'
Appeal of Clark, 95 A. 517, 114 Me. 105, Ann.
Cas. 1917A, 837. (lbid, p. 341).
Expression 'credible witness' in relation to
attestation of wins means 'competent witness that
is, one competent under the law to testify to fact of
execution of will. Vernon's Ann. Civ St. art.
8283. Moos vs. First State Bank of Uvalde, Tex .
Civ. App. 60 S.W. 2nd 888, 889. (Ibid, p. 342)
The term 'credible', used in the statute of wills
requiring that a will shall be attested by two
credible witnesses means competent; witnesses
who, at the time of attesting the will, are legally
competent to testify, in a court of justice, to the
facts attested by subscribing the will, the
competency being determined as of the date of the
execution of the will and not of the timr it is offered
for probate, Smith vs. Goodell 101 N.E. 255, 256,
258 111. 145. (Ibid.)
Credible witnesses as used in the statute relating
to wills, means competent witnesses — that is,
such persons as are not legally disqualified from
testifying in courts of justice, by reason of mental
incapacity, interest, or the commission of crimes,
or other cause excluding them from testifying
generally, or rendering them incompetent in
respect of the particular subject matter or in the
particular suit. Hill vs. Chicago Title & Trust co 152
N.E. 545, 546, 322 111. 42. (Ibid. p, 343)
In the strict sense, the competency of a person to be an
instrumental witness to a will is determined by the statute,
that is Art. 820 and 821, Civil Code, whereas his credibility
depends On the appreciation of his testimony and arises
from the belief and conclusion of the Court that said
witness is telling the truth. Thus, in the case of Vda. de
Aroyo v. El Beaterio del Santissimo Rosario de Molo, No. L-
22005, May 3, 1968, the Supreme Court held and ruled
that: "Competency as a witness is one thing, and it is
another to be a credible witness, so credible that the Court
must accept what he says. Trial courts may allow a person
to testify as a witness upon a given matter because he is
competent, but may thereafter decide whether to believe or
not to believe his testimony." In fine, We state the rule that
the instrumental witnesses in Order to be competent must
be shown to have the qualifications under Article 820 of
the Civil Code and none of the disqualifications under
Article 821 and for their testimony to be credible, that is
worthy of belief and entitled to credence, it is not
mandatory that evidence be first established on record that
the witnesses have a good standing in the community or
that they are honest and upright or reputed to be
trustworthy and reliable, for a person is presumed to be
such unless the contrary is established otherwise. In other
words, the instrumental witnesses must be competent and
their testimonies must be credible before the court allows
the probate of the will they have attested. We, therefore,
reject petitioner's position that it was fatal for respondent
not to have introduced prior and independent proof of the
fact that the witnesses were "credible witnesses that is,
that they have a good standing in the community and
reputed to be trustworthy and reliable.
Under the second, third, fourth, fifth, sixth, seventh and
eighth assignments of errors, petitioner disputes the
findings of fact of the respondent court in finding that the
preparation and execution of the will was expected and not
coincidental, in finding that Atty. Paraiso was not previously
furnished with the names and residence certificates of the
witnesses as to enable him to type such data into the
document Exhibit "F", in holding that the fact that the three
typewritten lines under the typewritten words "pangalan"
and "tinitirahan" were left blank shows beyond cavil that
the three attesting witnesses were all present in the same
occasion, in holding credible that Isabel Gabriel could have
dictated the will without note or document to Atty. Paraiso,
in holding that Matilde Orobia was physically present when
the will was signed on April 15, 1961 by the deceased
Isabel Gabriel and the other witnesses Celso Gimpaya and
Maria Gimpaya, in holding that the trial court gave undue
importance to the picture takings as proof that the will was
improperly executed, and in holding that the grave
contradictions, evasions and misrepresentations of the
witnesses (subscribing and notary) presented by the
petitioner had been explained away.
Since the above errors are factual We must repeat what We
have previously laid down that the findings of fact of the
appellate court are binding and controlling which We
cannot review, subject to certain exceptions which We win
consider and discuss hereinafter. We are convinced that
the appellate court's findings are sufficiently justified and
supported by the evidence on record. Thus, the alleged
unnaturalness characterizing the trip of the testatrix to the
office of Atty. Paraiso and bringing all the witnesses without
previous appointment for the preparation and execution of
the win and that it was coincidental that Atty. Paraiso was
49
available at the moment impugns the finding of the Court of
Appeals that although Atty. Paraiso admitted the visit of
Isabel Gabriel and of her companions to his office on April
15, 1961 was unexpected as there was no prior
appointment with him, but he explained that he was
available for any business transaction on that day and that
Isabel Gabriel had earlier requested him to help her
prepare her will. The finding of the appellate court is amply
based on the testimony of Celso Gimpaya that he was not
only informed on the morning of the day that he witnessed
the will but that it was the third time when Isabel Gabriel
told him that he was going to witness the making of her will,
as well as the testimony of Maria Gimpaya that she was
called by her husband Celso Gimpaya to proceed to Isabel
Gabriel's house which was nearby and from said house,
they left in a car to the lawyer's office, which testimonies
are recited in the respondent Court's decision.
The respondent Court further found the following facts: that
Celso Gimpaya and his wife Maria Gimpaya obtained
residence certificates a few days before Exhibit "F" was
executed. Celso Gimpaya's residence certificate No. A-
5114942 was issued at Navotas, Rizal on April 13, 1961
while Maria Gimpaya's residence certificate No. A-5114974
was issued also at Navotas, Rizal on April 14, 1961. The
respondent Court correctly observed that there was nothing
surprising in these facts and that the securing of these
residence certificates two days and one day, respectively,
before the execution of the will on April 15, 1961, far from
showing an amazing coincidence, reveals that the spouses
were earlier notified that they would be witnesses to the
execution of Isabel Gabriel's will.
We also agree with the respondent Court's conclusion that
the excursion to the office of Atty. Paraiso was planned by
the deceased, which conclusion was correctly drawn from
the testimony of the Gimpaya spouses that they started
from the Navotas residence of the deceased with a
photographer and Isabel Gabriel herself, then they
proceeded by car to Matilde Orobia's house in Philamlife,
Quezon City to fetch her and from there, all the three
witnesses (the Gimpayas and Orobia) passed by a place
where Isabel Gabriel stayed for about ten to fifteen minutes
at the clinic of Dr. Chikiamco before they proceeded to Atty.
Cipriano Paraiso's office.
It is also evident from the records, as testified to by Atty.
Paraiso, that previous to the day that. the will was executed
on April 15, 1961, Isabel Gabriel had requested him to help
her in the execution of her will and that he told her that if
she really wanted to execute her will, she should bring with
her at least the Mayor of Navotas, Rizal and a Councilor to
be her witnesses and that he (Atty. Paraiso) wanted a
medical certificate from a physician notwithstanding the
fact that he believed her to be of sound and disposition
mind. From this evidence, the appellate court rightly
concluded, thus: "It is, therefore, clear that the presence of
Isabel Gabriel and her witnesses Matilde Orobia, Celso
Gimpaya and Maria Gimpaya including the photographer in
the law office of Atty. Paraiso was not coincidental as their
gathering was pre-arranged by Isabel Gabriel herself."
As to the appellate court's finding that Atty. Paraiso was not
previously furnished with the names and residence
certificates of the witnesses as to enable him to type such
data into the document Exhibit ' L which the petitioner
assails as contradictory and irreconcilable with the
statement of the Court that Atty. Paraiso was handed a list
(containing the names of the witnesses and their respective
residence certificates) immediately upon their arrival in the
law office by Isabel Gabriel and this was corroborated by
Atty. Paraiso himself who testified that it was only on said
occasion that he received such list from Isabel Gabriel, We
cannot agree with petitioner's contention. We find no
contradiction for the, respondent Court held that on the
occasion of the will making on April 15, 1961, the list was
given immediately to Atty. Paraiso and that no such list was
given the lawyer in any previous occasion or date prior to
April 15, 1961.
But whether Atty. Paraiso was previously furnished with the
names and residence certificates of the witnesses on a
prior occasion or on the very occasion and date in April 15,
1961 when the will was executed, is of no moment for such
data appear in the notarial acknowledgment of Notary
Public Cipriano Paraiso, subscribed and sworn to by the
witnesses on April 15, 1961 following the attestation
clause duly executed and signed on the same occasion,
April 15, 1961. And since Exhibit "F" is a notarial will duly
acknowledged by the testatrix and the witnesses before a
notary public, the same is a public document executed and
attested through the intervention of the notary public and
as such public document is evidence of the facts in clear,
unequivocal manner therein expressed. It has in its favor
the presumption of regularity. To contradict all these, there
must be evidence that is clear, convincing and more than
merely preponderant. (Yturalde vs. Azurin, 28 SCRA 407).
We find no such evidence pointed by petitioner in the case
at bar.
Likewise, the conclusion of the Court of Appeals in holding
that the fact that the three typewritten lines under the
typewritten words "pangalan ' and "tinitirahan" were left
blank shows beyond cavil that the three attesting witnesses
were all present in the same occasion merits Our approval
because tills conclusion is supported and borne out by the
evidence found by the appellate court, thus: "On page 5 of
Exhibit "F", beneath the typewritten words "names", "Res.
Tax Cert. date issued" and place issued the only name of
Isabel Gabriel with Residence Tax certificate No. A-
5113274 issued on February 24, 1961 at Navotas Rizal
appears to be in typewritten form while the names,
residence tax certificate numbers, dates and places of
issuance of said certificates pertaining to the three (3)
witnesses were personally handwritten by Atty. Paraiso.
Again, this coincides with Atty. Paraiso's even the sale must
be made to close relatives; and the seventh was the
appointment of the appellant Santiago as executrix of the
will without bond. The technical description of the
properties in paragraph 5 of Exhibit F was not given and the
numbers of the certificates of title were only supplied by
Atty. Paraiso. "
50
It is true that in one disposition, the numbers of the Torrens
titles of the properties disposed and the docket number of
a special proceeding are indicated which Atty. Paraiso
candidly admitted were supplied by him, whereupon
petitioner contends that it was incredible that Isabel Gabriel
could have dictated the will Exhibit "F" without any note or
document to Atty. Paraiso, considering that Isabel Gabriel
was an old and sickly woman more than eighty-one years
old and had been suffering from a brain injury caused by
two severe blows at her head and died of terminal cancer a
few weeks after the execution of Exhibit "F". While we can
rule that this is a finding of fact which is within the
competency of the respondent appellate court in
determining the testamentary capacity of the testatrix and
is, therefore, beyond Our power to revise and review, We
nevertheless hold that the conclusion reached by the Court
of Appeals that the testatrix dictated her will without any
note or memorandum appears to be fully supported by the
following facts or evidence appearing on record. Thus,
Isabel Gabriel, despite her age, was particularly active in
her business affairs as she actively managed the affairs of
the movie business ISABELITA Theater, paying the
aparatistas herself until June 4, 1961, 3 days before her
death. She was the widow of the late Eligio Naval, former
Governor of Rizal Province and acted as coadministratrix in
the Intestate Estate of her deceased husband Eligio Naval.
The text of the win was in Tagalog, a dialect known and
understood by her and in the light of all the circumstances,
We agree with the respondent Court that the testatrix
dictated her will without any note or memorandum, a fact
unanimously testified to by the three attesting witnesses
and the notary public himself.
Petitioner's sixth assignment of error is also bereft of merit.
The evidence, both testimonial and documentary is,
according to the respondent court, overwhelming that
Matilde Orobia was physically present when the will was
signed on April 15, 1961 by the testatrix and the other two
witnesses, Celso Gimpaya and Maria Gimpaya. Such factual
finding of the appellate court is very clear, thus: "On the
contrary, the record is replete with proof that Matilde
Orobia was physically present when the will was signed by
Isabel Gabriel on April '15, 1961 along with her co-
witnesses Celso Gimpaya and Maria Gimpaya. The trial
court's conclusion that Orobia's admission that she gave
piano lessons to the child of the appellant on Wednesdays
and Saturdays and that April 15, 1961 happened to be a
Saturday for which reason Orobia could not have been
present to witness the will on that — day is purely
conjectural. Witness Orobia did not admit having given
piano lessons to the appellant's child every Wednesday and
Saturday without fail. It is highly probable that even if April
15, 1961 were a Saturday, she gave no piano lessons on
that day for which reason she could have witnessed the
execution of the will. Orobia spoke of occasions when she
missed giving piano lessons and had to make up for the
same. Anyway, her presence at the law office of Atty.
Paraiso was in the morning of April 15, 1961 and there was
nothing to preclude her from giving piano lessons on the
afternoon of the same day in Navotas, Rizal."
In addition to the testimony of Matilde Orobia, Celso
Gimpaya and Maria Gimpaya that Matilde was present on
April 15, 1961 and that she signed the attestation clause
to the will and on the left-hand margin of each of the pages
of the will, the documentary evidence which is the will itself,
the attestation clause and the notarial acknowledgment
overwhelmingly and convincingly prove such fact that
Matilde Orobia was present on that day of April 15, 1961
and that she witnessed the will by signing her name
thereon and acknowledged the same before the notary
public, Atty. Cipriano P. Paraiso. The attestation clause
which Matilde Orobia signed is the best evidence as to the
date of signing because it preserves in permanent form a
recital of all the material facts attending the execution of
the will. This is the very purpose of the attestation clause
which 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 in the memory of the
subscribing witnesses, or other casualty they may still be
proved. (Thompson on Wills, 2nd ed., Sec. 132; Leynez vs.
Leynez, 68 Phil. 745).
As to the seventh error assigned by petitioner faulting the
Court of Appeals in holding that the trial court gave undue
importance to the picture-takings as proof that the win was
improperly executed, We agree with the reasoning of the
respondent court that: "Matilde Orobia's Identification of
the photographer as "Cesar Mendoza", contrary to what the
other two witnesses (Celso and Maria Gimpaya) and Atty.
Paraiso said that the photographer was Benjamin Cifra, Jr.,
is at worst a minor mistake attributable to lapse of time.
The law does not require a photographer for the execution
and attestation of the will. The fact that Miss Orobia
mistakenly Identified the photographer as Cesar Mendoza
scarcely detracts from her testimony that she was present
when the will was signed because what matters here is not
the photographer but the photograph taken which clearly
portrays Matilde Orobia herself, her co-witnesses Celso
Gimpaya. " Further, the respondent Court correctly held:
"The trial court gave undue importance to the picture
takings, jumping therefrom to the conclusion that the will
was improperly executed. The evidence however, heavily
points to only one occasion of the execution of the will on
April 15, 1961 which was witnessed by Matilde Orobia,
Celso Gimpaya and Maria Gimpaya. These witnesses were
quite emphatic and positive when they spoke of this
occasion. Hence, their Identification of some photographs
wherein they all appeared along with Isabel Gabriel and
Atty. Paraiso was superfluous."
Continuing, the respondent Court declared: "It is true that
the second picture-taking was disclosed at the cross
examination of Celso Gimpaya. But this was explained by
Atty. Paraiso as a reenactment of the first incident upon the
insistence of Isabel Gabriel. Such reenactment where
Matilde Orobia was admittedly no longer present was wholly
unnecessary if not pointless. What was important was that
the will was duly executed and witnessed on the first
occasion on April 15, 1961 , " and We agree with the
Court's rationalization in conformity with logic, law and
51
jurisprudence which do not require picture-taking as one of
the legal requisites for the execution or probate of a will.
Petitioner points to alleged grave contradictions, evasions
and misrepresentations of witnesses in their respective
testimonies before the trial court. On the other hand, the
respondent Court of Appeals held that said contradictions,
evasions and misrepresentations had been explained away.
Such discrepancies as in the description of the typewriter
used by Atty. Paraiso which he described as "elite" which to
him meant big letters which are of the type in which the will
was typewritten but which was Identified by witness Jolly
Bugarin of the N.B.I. as pica the mistake in mentioning the
name of the photographer by Matilde Orobia to be Cesar
Mendoza when actually it was Benjamin Cifra, Jr.— these
are indeed unimportant details which could have been
affected by the lapse of time and the treachery of human
memory such that by themselves would not alter the
probative value of their testimonies on the true execution of
the will, (Pascual vs. dela Cruz, 28 SCRA 421, 424) for it
cannot be expected that the testimony of every person win
be Identical and coinciding with each other with regard to
details of an incident and that witnesses are not expected
to remember all details. Human experience teach us "that
contradictions of witnesses generally occur in the details of
certain incidents, after a long series of questionings, and
far from being an evidence of falsehood constitute a
demonstration of good faith. In as much as not all those
who witness an incident are impressed in like manner, it is
but natural that in relating their impressions, they should
not agree in the minor details; hence the contradictions in
their testimony." (Lopez vs. Liboro, 81 Phil. 429).
It is urged of Us by the petitioner that the findings of the
trial court should not have been disturbed by the
respondent appellate court because the trial court was in a
better position to weigh and evaluate the evidence
presented in the course of the trial. As a general rule,
petitioner is correct but it is subject to well-established
exceptions. The right of the Court of Appeals to review, alter
and reverse the findings of the trial court where the
appellate court, in reviewing the evidence has found that
facts and circumstances of weight and influence have been
ignored and overlooked and the significance of which have
been misinterpreted by the trial court, cannot be disputed.
Findings of facts made by trial courts particularly when they
are based on conflicting evidence whose evaluation hinges
on questions of credibility of contending witnesses hes
peculiarly within the province of trial courts and generally,
the appellate court should not interfere with the same. In
the instant case, however, the Court of Appeals found that
the trial court had overlooked and misinterpreted the facts
and circumstances established in the record. Whereas the
appellate court said that "Nothing in the record supports
the trial court's unbelief that Isabel Gabriel dictated her will
without any note or document to Atty. Paraiso;" that the trial
court's conclusion that Matilde Orobia could not have
witnessed anybody signing the alleged will or that she could
not have witnessed Celso Gimpaya and Maria Gimpaya sign
the same or that she witnessed only the deceased signing
it, is a conclusion based not on facts but on inferences; that
the trial court gave undue importance to the picture-
takings, jumping therefrom to the conclusion that the will
was improperly executed and that there is nothing in the
entire record to support the conclusion of the court a quo
that the will signing occasion was a mere coincidence and
that Isabel Gabriel made an appointment only with Matilde
Orobia to witness the signing of her will, then it becomes
the duty of the appellate court to reverse findings of fact of
the trial court in the exercise of its appellate jurisdiction
over the lower courts.
Still the petitioner insists that the case at bar is an
exception to the rule that the judgment of the Court of
Appeals is conclusive as to the facts and cannot be
reviewed by the Supreme Court. Again We agree with the
petitioner that among the exceptions are: (1) when the
conclusion is a finding grounded entirely on speculations,
surmises or conjectures; (2) when the inference is
manifestly mistaken, absurd or impossible; (3) when there
is a grave abuse of discretion; (4) when the presence of
each other as required by law. " Specifically, We affirm that
on April 15, 1961 the testatrix Isabel Gabriel, together with
Matilde Orobia, Celso Gimpaya and his wife Maria Gimpaya,
and a photographer proceeded in a car to the office of Atty.
Cipriano Paraiso at the Bank of P.I. Building, Manila in the
morning of that day; that on the way, Isabel Gabriel
obtained a medical certificate from one Dr. Chikiamko
which she gave to Atty. Paraiso upon arriving at the latter's
office and told the lawyer that she wanted her will to be
made; that Atty. Paraiso asked Isabel Gabriel to dictate
what she wanted to be written in the will and the attorney
wrote down the dictation of Isabel Gabriel in Tagalog, a
language known to and spoken by her; that Atty. Paraiso
read back to her what he wrote as dictated and she
affirmed their correctness; the lawyer then typed the will
and after finishing the document, he read it to her and she
told him that it was alright; that thereafter, Isabel Gabriel
signed her name at the end of the will in the presence of
the three witnesses Matilde Orobia, Celso Gimpaya and
Maria Gimpaya and also at the left-hand margin of each
and every page of the document in the presence also of the
said three witnesses; that thereafter Matilde Orobia
attested the will by signing her name at the end of the
attestation clause and at the left-hand margin of pages 1,
2, 3 and 5 of the document in the presence of Isabel
Gabriel and the other two witnesses, Celso Gimpaya and
Maria Gimpaya; then, Celso Gimpaya signed also the will at
the bottom of the attestation clause and at the left-hand
margin of the other pages of the document in the presence
of Isabel Gabriel, Matilde Orobia and Maria Gimpaya; that
Maria Gimpaya followed suit, signing her name at the foot
of the attestation clause and at the left-hand margin of
every page in the presence of Isabel Gabriel, Matilde Orobia
and Celso Gimpaya; that thereafter, Atty. Paraiso notarized
the will as Page No. 94, Book No. IV, Series of 1961, in his
Notarial Register. On the occasion of the execution and
attestation of the will, a photographer took pictures, one
Exhibit "G", depicting Matilde Orobia, the testatrix Isabel
Gabriel, Celso Gimpaya, Maria Gimpaya and Atty. Paraiso,
taken on said occasion of the signing of the will, and
another, Exhibit "H", showing Matilde Orobia signing
52
testimony that he had earlier advised Isabel Gabriel to bring
with her at least the Mayor and a Councilor of Navotas,
Rizal to be her witnesses for he did not know beforehand
the Identities of the three attesting witnesses until the
latter showed up at his law office with Isabel Gabriel on
April 15, 1961. Atty. Paraiso's claim which was not
controverted that he wrote down in his own hand the date
appearing on page 5 of Exhibit "F" dissipates any lingering
doubt that he prepared and ratified the will on the date in
question."
It is also a factual finding of the Court of Appeals in holding
that it was credible that Isabel Gabriel could have dictated
the will, Exhibit "F", without any note or document to Atty.
Paraiso as against the contention of petitioner that it was
incredible. This ruling of the respondent court is fully
supported by the evidence on record as stated in the
decision under review, thus: "Nothing in the record supports
the trial court's unbelief that Isabel Gabriel dictated her will
without any note or document to Atty. Paraiso. On the
contrary, all the three attesting witnesses uniformly
testified that Isabel Gabriel dictated her will to Atty. Paraiso
and that other than the piece of paper that she handed to
said lawyer she had no note or document. This fact jibes
with the evidence — which the trial court itself believed was
unshaken — that Isabel Gabriel was of sound disposing
memory when she executed her will.
Exhibit "F" reveals only seven (7) dispositions which are not
complicated but quite simple. The first was Isabel Gabriel's
wish to be interred according to Catholic rites the second
was a general directive to pay her debts if any; the third
provided for P1,000.00 for her sister Praxides Gabriel Vda.
de Santiago and P2,000.00 for her brother Santiago
Gabriel; the fourth was a listing of her 13 nephews and
nieces including oppositor-appellee Rizalina Gabriel and
the amount for each legatee the fifth was the institution of
the petitioner-appellant, Lutgarda Santiago as the principal
heir mentioning in general terms seven (7) types of
properties; the sixth disposed of the remainder of her
estate which she willed in favor of appellant Lutgarda
Santiago but prohibiting the sale of such properties to
anyone except in extreme situations in which judgment is
based on a misapprehension of facts; (5) when the findings
of fact are conflicting, (6) when the Court of Appeals, in
making its findings, went beyond the issues of the case and
the same is contrary to the admissions of both appellant
and appellee. (Roque vs. Buan, et al., G.R. No. L-22459,
Oct. 31, 1967; Ramos vs. Pepsi Cola Bottling Co., G.R. No.
L-22533, Feb. 9, 1967; Hilarion Jr. vs. City of Manila, G.R.
No. L-19570; Sept. 14, 1967).
Petitioner's insistence is without merit. We hold that the
case at bar does not fall within any of the exceptions
enumerated above. We likewise hold that the findings of
fact of the respondent appellate court are fully supported
by the evidence on record. The conclusions are fully
sustained by substantial evidence. We find no abuse of
discretion and We discern no misapprehension of facts.
The respondent Court's findings of fact are not conflicting.
Hence, the well-established rule that the decision of the
Court of Appeals and its findings of fact are binding and
conclusive and should not be disturbed by this Tribunal and
it must be applied in the case at bar in its full force and
effect, without qualification or reservation. The above
holding simply synthesize the resolutions we have
heretofore made in respect ' to petitioner's previous
assignments of error and to which We have disagreed and,
therefore, rejected.
The last assignments of error of petitioner must necessarily
be rejected by Us as We find the respondent Court acted
properly and correctly and has not departed from the
accepted and usual course of judicial proceedings as to call
for the exercise of the power of supervision by the Supreme
Court, and as We find that the Court of Appeals did not err
in reversing the decision of the trial court and admitting to
probate Exhibit "F", the last will and testament of the
deceased Isabel Gabriel.
We rule that the respondent Court's factual findings upon
its summation and evaluation of the evidence on record is
unassailable that: "From the welter of evidence presented,
we are convinced that the will in question was executed on
April 15, 1961 in the presence of Matilde Orobia, Celso
Gimpaya and Maria Gimpaya signing and witnessing the
same in the the will on a table with Isabel Gabriel, Celso
Gimpaya and Maria Gimpaya sitting around the table. Atty.
Paraiso, after finishing the notarial act, then delivered the
original to Isabel Gabriel and retained the other copies for
his file and notarial register. A few days following the
signing of the will, Isabel Gabriel, Celso Gimpaya and
another photographer arrived at the office of Atty. Paraiso
and told the lawyer that she wanted another picture taken
because the first picture did not turn out good. The lawyer
told her that this cannot be done because the will was
already signed but Isabel Gabriel insisted that a picture be
taken, so a simulated signing was performed during which
incident Matilde Orobia was not present.
Petitioner's exacerbation centers on the supposed
incredibility of the testimonies of the witnesses for the
proponent of the will, their alleged evasions,
inconsistencies and contradictions. But in the case at bar,
the three instrumental witnesses who constitute the best
evidence of the will making have testified in favor of the
probate of the will. So has the lawyer who prepared it, one
learned in the law and long in the practice thereof, who
thereafter notarized it. All of them are disinterested
witnesses who stand to receive no benefit from the
testament. The signatures of the witnesses and the
testatrix have been identified on the will and there is no
claim whatsoever and by anyone, much less the petitioner,
that they were not genuine. In the last and final analysis,
the herein conflict is factual and we go back to the rule that
the Supreme Court cannot review and revise the findings of
facts of the respondent Court of Appeals.
WHEREFORE, IN VIEW OF THE FOREGOING, the judgment
appealed from is hereby AFFIRMED, with costs against the
petitioner.
SO ORDERED.
53
G.R. No. L-2396 December 11, 1950
In the matter of the petition for the probate of the will of the
deceased Pablo M. Roxas. NATIVIDAD I. VDA. DE
ROXAS, petitioner-appellant,
vs.
MARIA ROXAS, ET AL., oppositors-appellees.
Claro M. Recto and Francisco A. Rodrigo for appellant.
Vicente J. Francisco, Estanislao A. Fernandez, Jr., and
Gerardo M. Alfonso for appellees.
PARAS, J.:
Pablo Roxas died in the municipality of Bulacan, Province of
Bulacan, on July 14, 1946. On August 10, 1946, Natividad
Icasiano (the widow) filed in the Court of First Instance of
Bulacan a petition for the probate of a will alleged to have
been left by Pablo Roxas, devising all his properties to
Natividad Icasiano and Reynaldo Roxas (an adulterous
son). The will is typewritten and worded in Tagalog and the
attesting witnesses are Jacinto Y. Enriquez, Fortunato R.
Gupit and Martin Rodrigo. The will is dated, in the body,
January 1, 1945. No date is given in the attestation clause.
An opposition was filed by Maria Roxas and Pedro Roxas
(sister and brother of Pablo Roxas) on the ground that the
alleged will was not executed and attested as required by
law, and that, in any event, it was intended as a mere
formal request which was, however, subsequently revoked
as shown by the fact that it was crumpled with intent to
destroy. Upon motion for bill of particulars filed by the
petitioner (Natividad Icasiano), the oppositors (Maria and
Pedro Roxas) alleged that the will is vitiated by the following
formal defects: "(a) The alleged last will and testament was
not attested and subscribed by three or more credible
witnesses in the presence of the testator and of each other;
(b) The testator and the instrumental witnesses did not sign
the only page of the will on the left margin, nor was the
page numbered in letters on the upper part of the sheet; (c)
The attestation clause does not state that the alleged
witnesses thereto witnessed and signed the will in the
presence of the testator and of each other."
After trial, the Court of First Instance of Bulacan rendered a
decision disallowing the probate of the will. The lower court
concluded that the body of the will was typewritten and
signed by the testator on a date or occasion different from
and anterior to the date or occasion when the attestation
clause was typewritten and signed by the attesting
witnesses, with the result that the will was not signed by
the testator in the presence of the witnesses, and by the
latter in the presence of the testator and of each other, as
required in section 618 of Act No. 190 as amended by Act
No. 2645. This conclusion was motivated by the following
circumstances enumerated in the decision: "(a) That the
paper on which the alleged will, Exhibit D, is written has
been folded and crumpled; (b) That the body of the will was
typewritten before the signature of Pablo M. Roxas had
been affixed thereon and before it had been folded and
crumpled; (c) That after it had been folded and crumpled, it
was smoothened in order to eliminate or minimize as much
as possible the folds and wrinkles, preparatory, to the
writing of the attestation clause on the same typewriter
which was used in typewriting the body of the will; (d) That
the attestation clause was typewritten, single space, and a
deliberate effort was exerted to make it appear that it was
written by the testator himself at the same time with the
body thereof, but the tell-tale letter "o" and the inequality of
the marginal alignments of both the body and the
attestation clause have betrayed the vain effort; (e) That
the texture and fiber of the paper on the portion on which
the signature of the attesting witnesses were affixed had
been disturbed and affected by the interval of time and the
ordinary exposure of the paper to the atmosphere between
the signing of the testator and the attesting witnesses,
which fact is revealed by the greater penetrations of the ink
in the signature of Pablo M. Roxas; ( f ) That had the
testator and the attesting witnesses signed on the same
occasion, the probability was that one or two fountain pens
only should have been used instead of three as testified to
unanimously by the expert witnesses both for the
proponent and the oppositors."
The petitioner has appealed. Her counsel insist that the
testimony, unanimous in all essential points, of the three
attesting witnesses should be given controlling weight.
Counsel for oppositors, upon the other hand, argue that the
testimony of Maria Roxas, in conjunction with the opinions
of experts, should prevail.
The testimony of Fortunato Gupit, Jacinto Y. Enriquez and
Martin Rodrigo (the attesting witnesses) tends to show that
they were in the house of Rosario Vda. de Icasiano (mother-
in-law of Gupit) in barrio Sta. Ana, municipality of Bulacan,
Province of Bulacan, on January 1, 1945. Between two and
three in the afternoon Pablo Roxas showed up and,
approaching Gupit who was then reading a book, asked
him to go to the sala with Roxas. The latter got from his hip
pocket a folded sheet of paper (the will here in question)
and asked Gupit to read it. In the meantime Roxas
proceeded to the dining hall where a mahjong game was
being played and called Enriquez and Rodrigo who
thereupon went to the sala and were asked to read the will
previously handed to Gupit. Roxas then made the request
for the three to act as witnesses. Roxas, using his fountain
pen, signed it in the presence of Gupit, Enriquez and
Rodrigo. Gupit then signed with his own pen and, noticing
that the ink in his signature was spreading, asked for a
blotter. Roxas got a blotter from a nearby writing desk and
gave it to Gupit who accordingly applied it. Enriquez and
Rodrigo, using the pen of Gupit, took their turns in signing
the will, the blotter being also applied. Thereafter, Roxas
refolded the document and inserted the same in his hip
pocket.
Fortunato A. Gupit is a certified public accountant. He is the
dean of the College of Business Administration and the
comptroller of the Arellano University. Jacinto Y. Enriquez
comes from a distinguished family in Bulacan and is a
student in the University of Santo Tomas. Martin Rodrigo is
a businessman and landowner. Gupit is the husband of a
54
half-sister of the petitioner; Enriquez is a second cousin of
petitioner; and Rodrigo is the husband of a deceased
cousin of the petitioner.
The testimony of oppositor Maria Roxas tends to show that
on December 30, 1944, Pablo Roxas asked from her a
sheet of typewriting paper. At about one in the afternoon of
January 1, 1945, Pablo Roxas came back to the house of
Maria and showed the will in question signed by Pablo,
clean and uncrumpled, and without any attestation clause.
Pablo executed the will as it was shown to Maria, as a mere
ruse to make the petitioner continue loving Reynaldo Roxas
(adulterous son of Pablo Roxas).
Two handwriting experts (Amadeo M. Cabe and Jose C.
Espinosa) were employed by the oppositors and their
testimony tends to support the theory that the body of the
will up to the signature of Pablo Roxas was typewritten on a
plain sheet of paper; that the sheet was subsequently
removed from the typewriter and signed by the testator;
that the sheet, after being crumpled and folded, was
reinserted in the typewriter for the insertion of the
attestation clause which was signed afterwards by the
three attesting witnesses. This expert opinion is based
more or less on the circumstance enumerated in the
appealed decision hereinbefore quoted, except that while
the trial court observed that there are "greater penetrations
of the ink in the signature of Pablo M. Roxas," Espinosa and
Cabe found that there is greater diffusion of ink in the
signatures of the attesting witnesses.
After a careful examination of the record in the light of the
contentions of the parties, we have no hesitancy in holding
that the appealed decision is erroneous. This case is one in
which the will is couched in a language known and spoken
by the testator and the signatures of the three attesting
witnesses are admittedly genuine. Such being the situation,
the question that arises, far from requiring the intervention
of experts, is one merely of credibility of witnesses. In our
opinion, the testimony of the three attesting witnesses —
confirmatory of the due execution of the will — deserves full
credit, not only because of their qualifications (hereinbefore
pointed out) but because their reputation for probity has
not been impeached. The fact that they may have some
relationship with the petitioner is not sufficient to warrant
the belief that they did not tell the truth. The law, in the first
place, does not bar relatives either of the testator of the
heirs or legatees from acting as witnesses. In the second
place, in the normal course of things and to be sure that
the witnesses would not let the beneficiaries down, the
testator may be inclined to employ, as attesting witnesses,
relatives of such beneficiaries, if not wholly disinterested
persons. In the third place, under the will, Reynaldo Roxas
(adulterous son of Pablo Roxas) is named a legatee on
equal footing with the petitioner, and the attesting
witnesses are not related whatsoever with him. In the
fourth place, whereas the three attesting witnesses have no
direct interest in the subject matter of the will, oppositor
Maria Roxas, like the other oppositor Pedro Roxas, is an
intestate heir of Pablo Roxas and, therefore, naturally
interested in having the probate of said will
disallowed.lawphil.net
Ordinarily, the findings of fact of a trial court, because of
the benefit of having seen and heard the witnesses, are
entitled to great weight. But, in this case, the lower court
relied on the conclusions of experts, and this is obvious
from (1) its recital of the circumstances that led it to believe
that the will was not executed in accordance with law, and
(2) its failure to analyze the oral evidence.
It is alleged that the testator had another adulterous child
(Aida), sister of Reynaldo, and it is unnatural that he would
have failed to provide for said child, if not for his brother
and sister (herein oppositors) in the will, if the testator
really intended to dispose of his properties under said will.
This is again a mere conjecture which should not prevail
over the testimony of the attesting witnesses, not to
mention the fact that there is nothing in the record to show
conclusively that the testator ever admitted that Aida is
another adulterous child, coupled with the circumstance
that the latter did not live with the testator. As to the
omission of the herein oppositors, there might have been a
reason known only to the testator why they should be
excluded, or why they need no participation.
That the will in question was written on poor kind of
stationery, or that it was not prepared by a lawyer or notary
public, or that no copies were made, is of no moment. It
should be borne in mind that the will was executed in
January, 1945, when everything was practically in
confusion due to the impending battles for the liberation of
the Philippines, and when paper supply was almost
exhausted. Aside from the fact that a will need not be
prepared by or acknowledged before a notary public, it is
not improbable that the testator, before the date of the will
in question, had prepared or seen previous wills and
therefore was familiar with its wording and legal formalities,
and that due to the abnormal time he undertook to prepare
said will without the aid of a lawyer or notary public and
without making copies thereof.
We do not venture to impute bias to the experts introduced
during the trial, but we hasten to state that the positive
testimony of the three attesting witnesses ought to prevail
over the expert opinions which cannot be mathematically
precise but which, on the contrary, are "subject to inherent
infirmities." In the instant case, it is significant that while
Amadeo M. Cabe observed that four different fountain pens
were used in signing the will, Jose C. Espinosa was unable
to determine whether the same pen was used for all the
signatures. Upon the other hand, Prof. H. Otley Beyer
believes that one pen was used for the testator's signature,
and another pen for the signatures of the witnesses.
Too much emphasis and effort, through experts Cabe and
Espinosa, had been placed on the supposition that after
the body of the will had been typewritten, the sheet was
removed from the machine and, after having been folded
and crumpled, it was replaced in the typewriter for the
insertion of the attestation clause. The law does not require
that the will should be written in one continuous act; and
55
the supposition does not necessarily, much less
conclusively, prove that the signing was not done on one
occasion. For the difference in the ink diffusions and
penetrations between the signatures of the testator and
those of the three attesting witnesses may not be due
solely to the folding and crumpling of the sheet on which
the will is written, but on such other factors as class of ink,
class of pens, habit of writing, condition of paper, and the
use of blotter. Speculations on these matters should give
way to the positive declarations of the attesting witnesses.
The law impliedly recognizes the almost conclusive weight
of the testimony of attesting witnesses when it provides
that "if the will is contested, all the subscribing witnesses
present in the Philippines and not insane, must be
produced and examined, and the death, absence, or
insanity of any of them must be satisfactorily shown to the
court." (Section 11, Rule 77, Rules of Court.)
The contention made by the appellees in their opposition
that the will was revoked by the testator when he crumpled
the same, requires no serious consideration, in view of their
failure to show that the crumpling was caused with the
intention to revoke. Appellees' reference to other formal
defects of the will (other than that hereinbefore disposed
of) also needs no inquiry, because it is not pressed herein.
Wherefore, the appealed judgment is reversed and the will
in question is hereby declared probated. So ordered, with
costs against the appellees.
G.R. No. L-22005 May 3, 1968
JESUSA LACSON VDA. DE ARROYO, ET AL., petitioners,
vs.
EL BEATERIO DEL SANTISSIMO ROSARIO DE MOLO, ET
AL., respondents.
Jose W. Diokno for petitioners.
Uy and Artiaga for respondents.
DIZON, J.:
Appeal by certiorari taken by Jesusa Lacson Vda. de Arroyo
and other heirs of the late Ignacio Arroyo, from the decision
of the Court of Appeals in CA-G.R.-28555 affirming the one
rendered by the Court of First Instance of Iloilo in Civil Case
No. 4759 entitled "Jesusa Lacson Vda. de Arroyo, et al. vs.
Beaterio del Santissimo Rosario de Molo, et al." holding
"that the plaintiffs have failed to establish fair and reliable
basis upon which the donation in question may be justly
declared inofficious", and, for this reason, dismissing the
case, without costs.
The facts as found by the Court of Appeals — substantially
the same as those found by the Court of First Instance —
are as follows:
On July 2, 1924, the late Ignacio Arroyo partitioned
his entire estate inter vivos among his three
children, Jose Arroyo, Mariano Arroyo and Sor
Rosario (Arroyo) de la Visitacion by executing with
them a public instrument called "Convenio de
Reparticion de Bienes y Adjudicacion de Herencia"
(Exh. "A"). The three children also received therein
their inheritance from their deceased mother
Maria Pidal, the first wife of Ignacio Arroyo. The
estate of Ignacio Arroyo was apportioned in four
parts, with specified properties being given to each
of the three children, and the remaining properties,
likewise specified, being adjudicated to Ignacio
Arroyo, or reserved for himself, as comprising his
one-third portion of free disposal.
On March 8, 1927 Jose Arroyo died leaving his
widow Jesusa Lacson Vda. de Arroyo and their
children as his only heirs.
On January 9, 1928, Ignacio Arroyo, in a public
document called "Escritura de Donacion" (Exh. "B"),
disposed of almost all of the properties
adjudicated to him in the aforementioned
"Convenio de Reparticion," in favor of Beaterio del
Santissimo Rosario de Molo, a religious
corporation. This donation, with all the conditions
thereof, was accepted by the donee on the same
date and in the same instrument. Subsequent
documents clarifying the properties subject matter
of the donation, and modifying the conditions
imposed thereby, were executed on August 11,
1931 and on October 8, 1931 (Exhs. "C", "D" and
"E").
On October 22, 1931 Ignacio Arroyo executed his
last will and testament
(Exh. "F"). The "Convenio de Reparticion"
aforementioned was reproduced in said will as an
integral part thereof, following a statement therein
regarding its execution, and regarding its being
confirmed and reproduced therein so that its
validity will never be questioned. The donation in
favor of the Beaterio del Santissimo Rosario de
Molo, its acceptance and subsequent
modifications were likewise related in the said will.
On January 8, 1935 Ignacio Arroyo died and his
last will and testament was probated, without any
opposition, by the Court of First Instance of Iloilo
on February 25, 1935.
On January 20, 1936 Ricardo Carreon, as
administrator of the intestate estate of Concepcion
Gerona, filed an amended complaint (Exh. "G")
against Lucio Lacson as executor of Ignacio Arroyo,
Jose Arroyo, Jr. as administrator of the intestate
estate of Jose Arroyo, the Beaterio del Santissimo
Rosario de Molo and the Municipality of Iloilo,
docketed as Civil Case No. 9137 of the Court of
First Instance of Iloilo, seeking the recovery, inter
alia, of one-half of the properties adjudicated to
Jose Arroyo and Mariano Arroyo in the "Convenio
de Reparticion" (Exh. "A") and one-half of the
properties donated to the Beaterio del Santissimo
56
 Rosario de Molo in the "Escritura de Donacion"
(Exh. "B"). The court rendered judgment against the
defendants, but cleared the Beaterio and the
municipality of Iloilo from any liability, and
refrained from disturbing the status of the
properties donated to them, reserving the right of
the plaintiff to claim from the executor of Ignacio
Arroyo one-half of the value of these donated
properties. The Arroyos appealed the decision to
the Supreme Court but war destroyed the records
of the case, so that a new trial was ordered. Civil
Case No. 9137 of the Court of First Instance of
Iloilo was then tried anew, but on November 3,
1949, the plaintiffs therein and Jesusa Lacson
Vda. de Arroyo, as administratrix of the intestate
estate of Jose Arroyo entered into an agreement
whereby the former renounced and waived in favor
of the latter all their rights and interest on any and
all the properties therein litigated in consideration
of the sum of P65,000.00 and the assumption of
the obligation to pay the attorney's fees of the
counsel of the plaintiffs in the sum of P40,000.00
(Exh. "M-1"). Upon motion of both parties the Court
of First Instance dismissed the complaint in Civil
Case No. 9137 on the same date (Exh. "R").
On March 13, 1958, Jesusa Lacson Vda. de Arroyo
and her children, as the heirs of Jose Arroyo, filed
the complaint in this case, seeking declaration of
the donation made by Ignacio Arroyo to the
Beaterio del Santissimo Rosario de Molo in 1928
as inofficious and to recover the excess thereof.
The principal defendant is the Beaterio del
Santissimo Rosario de Molo, although the estate of
Sor Rosario (Arroyo) de la Visitacion as the heirs of
Mariano Arroyo were impleaded as defendants for
being allegedly unwilling co-plaintiffs. On March
24, 1958 defendants filed their answer including a
counterclaim, which plaintiffs answered on April
14, 1958. After due trial, decision was rendered on
August 29, 1960, dismissing the complaint for
failure of the plaintiffs to establish fair and
reasonable basis upon which the donation in
question may be justly declared inofficious. The
counterclaim was likewise dismissed.
After a careful consideration of the foregoing facts, the trial
court held "that the plaintiffs have failed to establish fair
and reasonable basis upon which the donation in question
may be justly declared inofficious" (Record on Appeal, p.
168). For its part, the Court of Appeals affirmed the
decision of the trial court because, in its opinion, "the
decision appealed from does not err in finding no fair and
reasonable basis for declaring the Beaterio donation
inofficious".
According to the decision of the Court of Appeals, the lone
assignment of error submitted by the appellants in their
brief argued "for the sufficiency of plaintiffs-appellants'
evidence as a fair and reasonable basis for resting a finding
that the donation in question is inofficious". It is clear,
therefore, that the only issue submitted to said court, and
by it decided, was purely one of fact.
In this connection it is a matter removed from dispute that
We can review decisions of the Court of Appeals only on
errors of law, its findings of fact being conclusive.
A question of law has been declared as one not calling for
the examination of the probative value of the evidence
presented by the parties (Goduco vs. Court of Appeals, et
al., G.R. No. L-17647, February 28, 1964; Air France, etc.
vs. Carrascoso, et al., G.R. No. L-21438, September 28,
1966). Moran's Comments on the subject (Rules of Court,
Volume 11, 1963 Edition, p. 412) are to the effect that "For
a question to be one of law, it must involve no examination
of the probative value of the evidence presented by the
litigants or any of them."
In a case similar to the one at bar (Lim vs. Calaguas, G.R.
No. L-2031, May 30, 1949, 40 O.G., 11 Supp. 247, 83 Phil.
796) We held:
Our review should be confined to the facts and
circumstances found by the Court of Appeals. And
we agree that such facts and circumstances in this
case do not sustain the theory of the appellant.
Indeed it is seriously to be doubted whether we
could reverse the conclusion of the appellate
court to the effect that those facts and
circumstances are not "enough evidence" to show
clearly and beyond doubt that the parties intended
the contract to be a mortgage instead of a
conditional conveyance. That conclusion is
obviously ONE OF FACT, not a bit different from the
verdict of a jury in a murder trial that the
circumstantial evidence presented by the
prosecution has proved, or has not proved the
accused had killed the deceased.
In disputes of this nature, the pivotal inquiry is: Do
the circumstances show beyond doubt that the
parties made a contract different from the express
terms of the document they signed? Is the
evidence clear, convincing and satisfactory that
the deal was a mortgage instead of a sale
with pacto de retro? (Cuyugan v. Santos, 34 Phil.
100; Tolentino v. Gonzales, 50 Phil. 558). That
query necessarily invites calibration of the hole
"evidence," considering mainly the credibility of
witnesses, existence and relevancy of specific
surrounding circumstances, their relation to each
other and to the whole and the probabilities of the
situation. Consequently, the question must be
deemed factual, for the Appeals' Court to solve.
In the United States where questions of law are for
the judge and questions of fact for the jury, it is
held that if the question whether a given
transaction amounts to a conditional sale or mere
mortgage depends upon written instruments
alone, it is a question for the court; but if
extraneous evidence is required or received for the
57
 purpose of ascertaining the real intention of the
parties, the question is for the jury (41 C.J. 361
citing many cases, particularly Bogk v. Gasset, 149
U.S. 17; Howard v. Kopperl, 74 Tex. 194; 5 SW
627 and Kinnert v. Strong, 103 Wis. 70; 79 N.W.
32) and 'an issue involving determination of the ...
intent of a person or persons with respect to act
done by them is a question of fact for the jury. (64
C.J. 365). (Emphasis ours).
In Rapatan vs. Chicano G.R. No. L-13828, February 25,
1960, We likewise said:
But the trial court did not merely dismiss the
complaint, proceeded to receive evidence on the
counterclaim of defendants. In this respect the trial
court said 'With respect to the counterclaim
alleged in the amended answer of the said
defendants, the preponderance of evidence
discloses that the imputations contained in the
complaint that the late Escolastico G. Chicano,
husband of Coleta de Chicano and father of Elpidio
Chicano, had acquired the land in question from
the plaintiffs through fraud and that the said
defendants "taking advantage of the ignorance of
the plaintiffs herein managed fraudulently to
transfer the tax declaration of the land in question
in the name of the plaintiffs to the name of
defendants, are false, malicious and defamatory to
the memory of the late Escolastico Chicano and
the reputation of his heirs, Elpidio Chicano and
Coleta de Chicano, thus causing the latter mental
anguish, besmirched reputation, wounded feelings,
moral shock and similar injuries," and accordingly,
ordered plaintiffs to pay the sum of P5,000.00 as
moral damages.
Considering that the foregoing finding is a question
of fact which involves an evaluation of the
evidence and the same is now assigned as error,
we are of the opinion that this case comes within
the appellate jurisdiction of the Court of Appeals.
In the light of the foregoing it is clear that petitioners now
seek a reversal of the decision of the Court of Appeals not
upon a question of law but upon one of fact — one which
necessarily involves the examination of the probative value
of the evidence presented by them, it being their contention
that such evidence, which the Court of Appeals precisely
held to be insufficient to justify the granting of the relief
sought, is, in fact, sufficient for that purpose. In other
words, petitioners seek to have Us substitute our judgment
in lieu of that of the Court of Appeals in the resolution of a
question of fact.
But to avoid the necessarily fatal application of the well
settled rule on the matter, petitioners' lone assignment of
error in the brief submitted to Us attempts to state the
issue somewhat differently, saying that the Court of
Appeals "gravely erred in not declaring the donation in
question inofficious and in not ordering the return to
petitioners of the excess thereof". Re-stating the issue at
page 2 of their brief they submit again that "the only
question presented in this appeal is whether the
conclusions of the Honorable Court of Appeals drawn from
the undisputed facts are correct or not".
Petitioners' obvious effort to show in this manner that the
Court of Appeals committed errors of laws is unavailing,
because for Us to hold that, upon the evidence of record,
the questioned donation is inofficious, We must necessarily
weigh or evaluate their evidence and hold that — contrary to
the opinion of the Court of Appeals — that evidence is of
sufficient probative value to show that the questioned
donation is inofficious.
Upon the other hand, the authorities relied upon by
petitioners do not support their contention.
What We said in Manila Railroad Company vs. Attorney
General, 41 Phil. 160, 169, is simply to the effect that a
witness who personally knows the land sought to be
expropriated because he had possessed it as owner or had
administered it or levied on it for a long time, or because he
had bought and sold much land situated in the same
municipality, or had been engaged in farming and business
and had therefore acquired experience and knowledge of
the value of lands in the locality, is competent to testify on
the value of said land. To hold that a particular person
is competent to testify upon a given matter does not mean
that his testimony upon the same must be believed by the
Court or must be deemed by the Court or must be deemed
by the latter to be of sufficient probative value to establish
the point which it was intended to prove. Competency as a
witness is one thing, and it is another to be a credible
witness, so credible that the Court must accept what he
says. A perusal of the decision subject of review clearly
shows that the Court of Appeals did not hold that witness
Doromal was not a competent witness in relation to the
value of the properties involved in the questioned donation;
it simply declined to believe his testimony or to give it
probative value sufficient to prove what petitioners were
trying to establish. Had the Court of Appeals considered
him not to be a competent witness upon that matter, it
would have completely ignored or disregarded his
testimony instead of weighing it or evaluating it; this,
however, resulting in the Court arriving at the conclusion
that such evidence did not have sufficient probative value
to convince the Court.
The passages quoted from 20 American Jurisprudence, pp.
749-750 and 755 are likewise in support of the proposition
that "professional appraisers and dealers engaged in the
business of buying and selling similar property
are competent to testify as to value" or are "competent to
express his (their) judgment as to its value". To say that a
particular witness "is competent to express his judgment"
as to the value of particular properties is manisfestly a far
cry from the proposition that because he is competent to
express such judgment, the Court must necessarily accept
and believe his testimony. The Court — particularly trial
courts — may allow a person to testify as a witness upon a
58
given matter because he is competent but may thereafter
decide whether to believe or not to believe his testimony.

As regards the Court of Appeals' refusal to believe or to be

bound by the testimony of petitioner Jesusa Lacson Vda. de
Arroyo because "a sale between brothers can not be a
reliable index of the fair market value of a property",
petitioners now contend that there is no evidence at all that
the deceased Jose Arroyo (late husband of said petitioner)
or the deceased Mariano Arroyo were trying to help one
another when they executed the deed of conveyance
involving one-half share of Haciendas "Manolita" and
"Conchita" in favor of the former. This obviously raises the
same question of whether or not the Court of Appeals
committed any error in evaluating the testimony of the
witness already named — a question purely of fact which
We are not authorized to review.

IN VIEW OF ALL THE FOREGOING, the decision appealed

from is affirmed, with costs.

59