ARTICLES 804-809 7816). They were childless.

They reared a boy named

Agapito who used the surname Suroza and who
considered them as his parents as shown in his 1945
marriage contract with Nenita de Vera (p. 15, Rollo of
G.R. No. L-39209 March 10, 1934 CA-G.R. No. 08654-R; p. 148, Rollo of Testate Case
showing that Agapito was 5 years old when Mauro
HIPOLITO ANDALIS, petitioner-appellee, married Marcelina in 1923).
vs.
LUCIA PULGUERAS, ET AL., oppositors-appellants. Mauro died in 1942. Marcelina, as a veteran's widow,
became a pensioner of the Federal Government. That
Jose M. Peñas for appellants. explains why on her death she had accumulated some
Hilario B. Regalado for appellee. cash in two banks.

HULL, J.: Agapito and Nenita begot a child named Lilia who
became a medical technologist and went abroad.
This is an appeal from a decision of the Court of First Agapito also became a soldier. He was disabled and his
Instance of Camarines Sur admitting to probate an wife Nenita was appointed as his guardian in 1953
alleged will of Victor Pulgueras, deceased. The when he was declared an incompetent in Special
testimony of only one of the attesting witnesses was Proceeding No. 1807 of the Court of First Instance of
taken. His testimony was to the effect that six pages of Rizal, Pasig Branch I (p. 16, Rollo of CA-G.R. No.
the will were signed on the margin by the testator and 08654-R).
two of the witnesses about the 4th of January, 1931,
that on the 11th of January, 1931, the remaining three In that connection, it should be noted that a woman
pages were signed by the testator and the three named Arsenia de la Cruz wanted also to be his
attesting witnesses, and that the third attesting witness guardian in another proceeding. Arsenia tried to prove
then signed the first six pages. that Nenita was living separately from Agapito and that
she (Nenita) admitted to Marcelina that she was
Such an execution of the will was not in conformity with unfaithful to Agapito (pp. 61-63, Record of testate case).
article 618 of the Code of Civil Procedure as amended.
Under our statute, the execution of a will is supposed to Judge Bienvenido A. Tan dismissed the second
be one act and cannot be legally effective if the various guardianship proceeding and confirmed Nenita's
participants sign on various days and in various appointment as guardian of Agapito (p. 16, Rollo of CA
combinations of those present. 1ªvvphi 1.ne+
case). Agapito has been staying in a veteran's hospital
in San Francisco or Palo Alto, California (p. 87, Record).
The judgment of the Court of First Instance of
Camarines Sur is therefore reversed, and the will in On a date not indicated in the record, the spouses
question is denied probate. Costs against appellee. So Antonio Sy and Hermogena Talan begot a child named
ordered. Marilyn Sy, who, when a few days old, was entrusted to
Arsenia de la Cruz (apparently a girl friend of Agapito)
Malcolm, Villa-Real, Imperial, and Goddard, JJ., and who was later delivered to Marcelina Salvador
concur. Suroza who brought her up as a supposed daughter of
Agapito and as her granddaughter (pp. 23-26, Rollo of
CA-G.R. No.SP-08654-R). Marilyn used the surname
A.M. No. 2026-CFI December 19, 1981
Suroza. She stayed with Marcelina but was not legally
adopted by Agapito. She married Oscar Medrano and
NENITA DE VERA SUROZA, complainant, is residing at 7666 J.B. Roxas Street, Makati,
vs. apparently a neighbor of Marina Paje, a resident of
JUDGE REYNALDO P. HONRADO of the Court of 7668 J.B. Roxas Street.
First Instance of Rizal, Pasig Branch 25 and
EVANGELINE S. YUIPCO, Deputy Clerk of
Marcelina supposedly executed a notarial will in Manila
Court, respondents. on July 23, 1973, when she was 73 years old. That will
which is in English was thumbmarked by her. She was
illiterate. Her letters in English to the Veterans
Administration were also thumbmarked by her (pp. 38-
AQUINO, J.: 39, CA Rollo). In that wig, Marcelina bequeathed all her
estate to her supposed granddaughter Marilyn.
Should disciplinary action be taken against respondent
judge for having admitted to probate a will, which on its Marcelina died on November 15, 1974 at the Veterans
face is void because it is written in English, a language Hospital in Quezon City. At the time of her death, she
not known to the illiterate testatrix, and which is was a resident of 7374 San Maximo Street, Olimpia,
probably a forged will because she and the attesting Makati, Rizal. She owned a 150-square meter lot and
witnesses did not appear before the notary as admitted house in that place. She acquired the lot in 1966 (p.
by the notary himself? 134, Record of testate case).

That question arises under the pleadings filed in the On January 13, 1975, Marina Paje, alleged to be a
testate case and in the certiorari case in the Court of laundrywoman of Marcelina (P. 97, CA Rollo) and the
Appeals which reveal the following tangled strands of executrix in her will (the alternate executrix was Juanita
human relationship: Macaraeg, mother of Oscar, Marilyn's husband), filed
with the Court of First Instance of Rizal, Pasig Branch
Mauro Suroza, a corporal in the 45th Infantry of the U.S. 25, a petition for the probate of Marcelina's alleged will.
Army (Philippine Scouts), Fort McKinley, married The case was assigned to Judge Reynaldo P. Honrado.
Marcelina Salvador in 1923 (p. 150, Spec. Proc. No.
As there was no opposition, Judge Honrado To that opposition was attached an affidavit of Dominga
commissioned his deputy clerk of court, Evangeline S. Salvador Teodocio, Marcelina's niece, who swore that
Yuipco, to hear the evidence. The transcripts of the Marcelina never executed a win (pp. 124-125, Record).
stenographic notes taken at the hearing before the
deputy clerk of court are not in the record. Marina in her answer to Nenita's motion to set aside the
proceedings admitted that Marilyn was not Marcelina's
In an order dated March 31, 1975, Judge Honrado granddaughter but was the daughter of Agapito and
appointed Marina as administratrix. On the following Arsenia de la Cruz and that Agapito was not Marcelina's
day, April 1, Judge Honrado issued two orders directing son but merely an anak-anakan who was not legally
the Merchants Banking Corporation and the Bank of adopted (p. 143, Record).
America to allow Marina to withdraw the sum of
P10,000 from the savings accounts of Marcelina S. Judge Honrado in his order of July 17, 1975 dismissed
Suroza and Marilyn Suroza and requiring Corazon Nenita's counter-petition for the issuance of letters of
Castro, the custodian of the passbooks, to deliver them administration because of the non-appearance of her
to Marina. counsel at the hearing. She moved for the
reconsideration of that order.
Upon motion of Marina, Judge Honrado issued another
order dated April 11, 1975, instructing a deputy sheriff In a motion dated December 5, 1975, for the
to eject the occupants of the testatrix's house, among consolidation of all pending incidents, Nenita V. Suroza
whom was Nenita V. Suroza, and to place Marina in reiterated her contention that the alleged will is void
possession thereof. because Marcelina did not appear before the notary and
because it is written in English which is not known to her
That order alerted Nenita to the existence of the (pp. 208-209, Record).
testamentary proceeding for the settlement of
Marcelina's estate. She and the other occupants of the Judge Honrado in his order of June 8, 1976 "denied" the
decedent's house filed on April 18 in the said various incidents "raised" by Nenita (p. 284, Record).
proceeding a motion to set aside the order of April 11
ejecting them. They alleged that the decedent's son Instead of appealing from that order and the order
Agapito was the sole heir of the deceased, that he has probating the wig, Nenita "filed a case to annul" the
a daughter named Lilia, that Nenita was Agapito's probate proceedings (p. 332, Record). That case, Civil
guardian and that Marilyn was not Agapito's daughter Case No. 24276, Suroza vs. Paje and Honrado (p. 398,
nor the decedent's granddaughter (pp. 52-68, Record of Record), was also assigned to Judge Honrado. He
testate case). Later, they questioned the probate court's dismissed it in his order of February 16, 1977 (pp. 398-
jurisdiction to issue the ejectment order. 402, Record).

In spite of the fact that Judge Honrado was already Judge Honrado in his order dated December 22, 1977,
apprised that persons, other than Marilyn, were after noting that the executrix had delivered the estate
claiming Marcelina's estate, he issued on April 23 an to Marilyn, and that the estate tax had been paid, closed
order probating her supposed will wherein Marilyn was the testamentary proceeding.
the instituted heiress (pp. 74-77, Record).
About ten months later, in a verified complaint dated
On April 24, Nenita filed in the testate case an omnibus October 12, 1978, filed in this Court, Nenita charged
petition "to set aside proceedings, admit opposition with Judge Honrado with having probated the fraudulent will
counter-petition for administration and preliminary of Marcelina. The complainant reiterated her contention
injunction". Nenita in that motion reiterated her that the testatrix was illiterate as shown by the fact that
allegation that Marilyn was a stranger to Marcelina, that she affixed her thumbmark to the will and that she did
the will was not duly executed and attested, that it was not know English, the language in which the win was
procured by means of undue influence employed by written. (In the decree of probate Judge Honrado did not
Marina and Marilyn and that the thumbmarks of the make any finding that the will was written in a language
testatrix were procured by fraud or trick. known to the testatrix.)

Nenita further alleged that the institution of Marilyn as Nenita further alleged that Judge Honrado, in spite of
heir is void because of the preterition of Agapito and his knowledge that the testatrix had a son named
that Marina was not qualified to act as executrix (pp. 83- Agapito (the testatrix's supposed sole compulsory and
91, Record). legal heir), who was preterited in the will, did not take
into account the consequences of such a preterition.
To that motion was attached an affidavit of Zenaida A.
Penaojas the housemaid of Marcelina, who swore Nenita disclosed that she talked several times with
that the alleged will was falsified (p. 109, Record). Judge Honrado and informed him that the testatrix did
not know the executrix Marina Paje, that the
Not content with her motion to set aside the ejectment beneficiary's real name is Marilyn Sy and that she was
order (filed on April 18) and her omnibus motion to set not the next of kin of the testatrix.
aside the proceedings (filed on April 24), Nenita filed the
next day, April 25, an opposition to the probate of the Nenita denounced Judge Honrado for having acted
will and a counter-petition for letters of administration. corruptly in allowing Marina and her cohorts to withdraw
In that opposition, Nenita assailed the due execution of from various banks the deposits Marcelina.
the will and stated the names and addresses of
Marcelina's intestate heirs, her nieces and nephews
She also denounced Evangeline S. Yuipco, the deputy
(pp. 113-121, Record). Nenita was not aware of the
clerk of court, for not giving her access to the record of
decree of probate dated April 23, 1975.
the probate case by alleging that it was useless for
Nenita to oppose the probate since Judge Honrado
would not change his decision. Nenita also said that instituted heiress in the void win should have inherited
Evangeline insinuated that if she (Nenita) had ten the decedent's estate.
thousand pesos, the case might be decided in her favor.
Evangeline allegedly advised Nenita to desist from A judge may be criminally liable or knowingly rendering
claiming the properties of the testatrix because she an unjust judgment or interlocutory order or rendering a
(Nenita) had no rights thereto and, should she persist, manifestly unjust judgment or interlocutory order by
she might lose her pension from the Federal reason of inexcusable negligence or ignorance (Arts.
Government. 204 to 206, Revised Penal Code).

Judge Honrado in his brief comment did not deal Administrative action may be taken against a judge of
specifically with the allegations of the complaint. He the court of first instance for serious misconduct or
merely pointed to the fact that Nenita did not appeal inefficiency ( Sec. 67, Judiciary Law). Misconduct
from the decree of probate and that in a motion dated implies malice or a wrongful intent, not a mere error of
July 6, 1976 she asked for a thirty day period within judgment. "For serious misconduct to exist, there must
which to vacate the house of the testatrix. be reliable evidence showing that the judicial acts
complained of were corrupt or inspired by an intention
Evangeline S. Yuipco in her affidavit said that she never to violate the law, or were in persistent disregard of well-
talked with Nenita and that the latter did not mention known legal rules" (In re lmpeachment of Horrilleno, 43
Evangeline in her letter dated September 11, 1978 to Phil. 212, 214-215).
President Marcos.
Inefficiency implies negligence, incompetence,
Evangeline branded as a lie Nenita's imputation that ignorance and carelessness. A judge would be
she (Evangeline) prevented Nenita from having access inexcusably negligent if he failed to observe in the
to the record of the testamentary proceeding. performance of his duties that diligence, prudence and
Evangeline was not the custodian of the record. circumspection which the law requires in the rendition
Evangeline " strongly, vehemently and flatly denied" of any public service (In re Climaco, Adm. Case No.
Nenita's charge that she (Evangeline) said that the sum 134-J, Jan. 21, 1974, 55 SCRA 107, 119).
of ten thousand pesos was needed in order that Nenita
could get a favorable decision. Evangeline also denied In this case, respondent judge, on perusing the will and
that she has any knowledge of Nenita's pension from noting that it was written in English and was
the Federal Government. thumbmarked by an obviously illiterate testatrix, could
have readily perceived that the will is void.
The 1978 complaint against Judge Honorado was
brought to attention of this Court in the Court In the opening paragraph of the will, it was stated that
Administrator's memorandum of September 25, 1980. English was a language "understood and known" to the
The case was referred to Justice Juan A. Sison of the testatrix. But in its concluding paragraph, it was stated
Court of Appeals for investigation, report and that the will was read to the testatrix "and translated into
recommendation. He submitted a report dated October Filipino language". (p. 16, Record of testate case). That
7, 1981. could only mean that the will was written in a language
not known to the illiterate testatrix and, therefore, it is
On December 14, 1978, Nenita filed in the Court of void because of the mandatory provision of article 804
Appeals against Judge Honrado a petition for certiorari of the Civil Code that every will must be executed in a
and prohibition wherein she prayed that the will, the language or dialect known to the testator. Thus, a will
decree of probate and all the proceedings in the probate written in English, which was not known to the Igorot
case be declared void. testator, is void and was disallowed (Acop vs. Piraso,
52 Phil. 660).
Attached to the petition was the affidavit of Domingo P.
Aquino, who notarized the will. He swore that the The hasty preparation of the will is shown in the
testatrix and the three attesting witnesses did not attestation clause and notarial acknowledgment where
appear before him and that he notarized the will "just to Marcelina Salvador Suroza is repeatedly referred to as
accommodate a brother lawyer on the condition" that the "testator" instead of "testatrix".
said lawyer would bring to the notary the testatrix and
the witnesses but the lawyer never complied with his Had respondent judge been careful and observant, he
commitment. could have noted not only the anomaly as to the
language of the will but also that there was something
The Court of Appeals dismissed the petition because wrong in instituting the supposed granddaughter as
Nenita's remedy was an appeal and her failure to do so sole heiress and giving nothing at all to her supposed
did not entitle her to resort to the special civil action of father who was still alive.
certiorari (Suroza vs. Honrado, CA-G.R. No. SP-08654,
May 24, 1981). Furthermore, after the hearing conducted by
respondent deputy clerk of court, respondent judge
Relying on that decision, Judge Honrado filed on could have noticed that the notary was not presented
November 17, 1981 a motion to dismiss the as a witness.
administrative case for having allegedly become moot
and academic. In spite of the absence of an opposition, respondent
judge should have personally conducted the hearing on
We hold that disciplinary action should be taken against the probate of the will so that he could have ascertained
respondent judge for his improper disposition of the whether the will was validly executed.
testate case which might have resulted in a miscarriage
of justice because the decedent's legal heirs and not the Under the circumstances, we find his negligence and
dereliction of duty to be inexcusable.
WHEREFORE, for inefficiency in handling the testate
case of Marcelina S. Suroza, a fine equivalent to his
salary for one month is imposed on respondent judge
(his compulsory retirement falls on December 25,
1981).

The case against respondent Yuipco has become moot

and academic because she is no longer employed in
the judiciary. Since September 1, 1980 she has been
assistant city fiscal of Surigao City. She is beyond this
Court's disciplinary jurisdiction (Peralta vs. Firm Adm.
Matter No. 2044-CFI November 21, 1980, 101 SCRA
225).

SO ORDERED.
 G.R. No. L-4067 November 29, 1951 signature of Atty. Florentino Javier is a surplusage.
Petitioner's theory is that the cross is as much a
In the Matter of the will of ANTERO MERCADO, signature as a thumbmark, the latter having been held
deceased. ROSARIO GARCIA, petitioner, sufficient by this Court in the cases of De
vs. Gala vs. Gonzales and Ona, 53 Phil., 104;
JULIANA LACUESTA, ET AL., respondents. Dolar vs. Diancin, 55 Phil., 479; Payad vs. Tolentino,
62 Phil., 848; Neyra vs. Neyra, 76 Phil., 296 and
Elviro L. Peralta and Hermenegildo A. Prieto for Lopez vs. Liboro, 81 Phil., 429.
petitioner.
Faustino B. Tobia, Juan I. Ines and Federico Tacason It is not here pretended that the cross appearing on the
for respondents. will is the usual signature of Antero Mercado or even
one of the ways by which he signed his name. After
PARAS, C.J.: mature reflection, we are not prepared to liken the mere
sign of the cross to a thumbmark, and the reason is
obvious. The cross cannot and does not have the
This is an appeal from a decision of the Court of
trustworthiness of a thumbmark.
Appeals disallowing the will of Antero Mercado dated
January 3, 1943. The will is written in the Ilocano dialect
and contains the following attestation clause: What has been said makes it unnecessary for us to
determine there is a sufficient recital in the attestation
clause as to the signing of the will by the testator in the
We, the undersigned, by these presents to
presence of the witnesses, and by the latter in the
declare that the foregoing testament of Antero
presence of the testator and of each other.
Mercado was signed by himself and also by us
below his name and of this attestation clause
and that of the left margin of the three pages Wherefore, the appealed decision is hereby affirmed,
thereof. Page three the continuation of this with against the petitioner. So ordered.
attestation clause; this will is written in Ilocano
dialect which is spoken and understood by the
testator, and it bears the corresponding number
in letter which compose of three pages and all
them were signed in the presence of the testator
and witnesses, and the witnesses in the
presence of the testator and all and each and
every one of us witnesses.

In testimony, whereof, we sign this statement,

this the third day of January, one thousand nine
hundred forty three, (1943) A.D.

Sgd.) NUMERIANO EVANGELISTA (Sgd.) "ROSENDA CORTES

Sgd.) BIBIANA ILLEGIBLE

The will appears to have been signed by Atty. Florentino

Javier who wrote the name of Antero Mercado, followed
below by "A reugo del testator" and the name of
Florentino Javier. Antero Mercado is alleged to have
written a cross immediately after his name. The Court
of Appeals, reversing the judgement of the Court of First
Instance of Ilocos Norte, ruled that the attestation
clause failed (1) to certify that the will was signed on all
the left margins of the three pages and at the end of the
will by Atty. Florentino Javier at the express request of
the testator in the presence of the testator and each and
every one of the witnesses; (2) to certify that after the
signing of the name of the testator by Atty. Javier at the
former's request said testator has written a cross at the
end of his name and on the left margin of the three
pages of which the will consists and at the end thereof;
(3) to certify that the three witnesses signed the will in
all the pages thereon in the presence of the testator and
of each other.

In our opinion, the attestation clause is fatally defective

for failing to state that Antero Mercado caused Atty.
Florentino Javier to write the testator's name under his
express direction, as required by section 618 of the
Code of Civil Procedure. The herein petitioner (who is
appealing by way of certiorari from the decision of the
Court of Appeals) argues, however, that there is no
need for such recital because the cross written by the
testator after his name is a sufficient signature and the
G.R. No. 2002 August 18, 1905 grave doubts as to the meaning of this section, but
section 1 of Act No. 63 provides that -
EX PARTE NEMESIO DELFIN SANTIAGO -
Probate proceedings, In the construction of all acts which have been or shall
be enacted by the United States Philippine
Mariano Crisostomo, attorney. Commission, the English text shall govern, except
that, in cases of ambiguity, omission, or mistake, the
CARSON, J.: Spanish text may be consulted to explain the English
text.
This is an appeal from an order of the Court of First
Instance of the Province of Bulacan denying probate Counsel for the appellant urges that since it is evident
of a certain document, purporting to be the last will that the document in question was executed for and as
and testament of one Esperanza Cecilio, deceased, on the last will and testament of the deceased, and as the
the ground that the name of the said Esperanza manner in which the signature should be attached to
Cecilio was not attached to said document, either by a will is a mere formality, the document should be
herself or by some other person for her and at her admitted to probate, even though it be held that the
request.chanroblesvirtualawlibrary chanrobles virtual law library formal authentication adopted by the deceased was
not in exact conformance with the method prescribed
The name of the deceased is nowhere attached to the by law. We hold however, that "no proof of good faith
instrument, but the concluding paragraph reads as can avail or supply the requisites of the law," for any
follows - other rule would open the door to mistake and fraud,
and tend to encourage fraudulent imposition in the
In witness whereof, and at my request, on account of establishment of spurious wills. (Neil vs. Neil, 1
my weakness and inability to sign my name, this Leigh (Va.), 6) chanrobles vir tual law library

document has been written by Mr. Eugenio

Agustines, and after having been executed and read to In some English cases ( In re Clark, 2 Curt., 329,
me I have caused him to sign it, in this town of Polo, and In re Blair, 6 Notes Cas., 529) it was held that it
barrio of pariancillo, this 6th day of July, 1903 - was "immaterial that the person signing for the
testator sign his own name instead of the name of the
And to this is attached the signature of the said testator," and this is the contention of the appellants
Eugenio Agustines, followed by the usual attesting in this case, but it is to be observed that the English
clause and the signatures of the witnesses. chanroblesvirtualawlibrary chanrobles virtual law library
Statute of Frauds (29 Carl. II, chap. 29) and the
English Statute of Wills (I Vict., chap., 26) under
It is contended that this is, in effect, and to all intents which these English decisions were rendered provide
and purposes, the signature of the testratrix attached that a will, to be valid, must be signed "by the testator
to the document; that it is in accordance with the usual or by some other person in his presence and by his
and legal form by which, under Spanish law, persons direction," whereas our statute provides that it must
unable to write have heretofore signed all written be signed "by the testator, or by the testator's
instruments; and that it comes fairly within the name written by some other person, in his presence
provisions of the first and second official translations and by his express direction." chanrobles virtual law library

of section 618 of Act No. 190, prescribing the mode

whereby last wills and testaments must be The provisions of the imperfect Spanish translations,
authenticated. chanroblesv irtualawlibrary chanrobles v irtual law library
to which our attention has been directed, are
strikingly similar, in effect, to the English statute, and
We are of opinion, however, that the signature of the were we permitted to accept those translations as
deceased is not attached to the document in question authoritative we might be compelled to admit the
in accordance with the provisions of section 618 of force of the appellant's contention, but the English
Act No. 190, and that the form adopted is not text of section 618 of Act No. 190, and the correct
sufficient to authenticate a will. It matters not what translation of public laws enacted by the Philippine
may have been the form usually adopted prior to the Commission, differs from the English statute in that
publication of this act, or whether a particular form of it is expressly provided therein, as one of the
signature may be sufficient for the authentication of requisites to a valid will, that when signed by a person
an ordinary written instrument. The form which must other than the testator it must be signed by the
be adopted in the signing of wills is expressly testator's name, written by such other person. chanroblesvirtualawlibrary chanrobles virtual law library

prescribed in this act, and must be followed. The

English text is positive, clear, and explicit, and The order appealed from is affirmed, with the costs of
prescribes, as one of the requisites of a valid will, that the appeal against the appellant. After the expiration
it be "signed by the testator, or by the testator's name of twenty days judgment will be entered in
written by some other person in his presence and by conformity herewith and the cause will be returned to
his express direction." chanrobles virtual law library
the lower court for execution. So ordered. chanroblesvirtualawlibrary chanrobles virtual law library

It is true that the translation found in the first and G.R. No. 1641 January 19, 1906
second editions of Act No. 190, as published by the
Philippine Commission, is so imperfect as to raise
GERMAN JABONETA, plaintiff-appellant, A. I believe he was signing.
vs.
RICARDO GUSTILO, ET AL., defendants-appellees. The truth and accuracy of the testimony of this witness
does not seem to have been questioned by any of the
Ledesma, Sumulong and Quintos for appellant. parties to the proceedings, but the court, nevertheless,
Del-Pan, Ortigas and Fisher for appellees. found the following facts:

CARSON, J.: On the 26th day of December, 1901, Macario

Jaboneta executed under the following
In these proceedings probate was denied the last will circumstances the document in question, which
and testament of Macario Jaboneta, deceased, has been presented for probate as his will:
because the lower court was of the opinion from the
evidence adduced at the hearing that Julio Javellana, Being in the house of Arcadio Jarandilla, in
one of the witnesses, did not attach his signature Jaro, in this province, he ordered that the
thereto in the presence of Isabelo Jena, another of the document in question be written, and calling
witnesses, as required by the provisions of section 618 Julio Javellana, Aniceto Jalbuena, and Isabelo
of the Code of Civil Procedure. Jena as witnesses, executed the said document
as his will. They were all together, and were in
The following is a copy of the evidence which appears the room where Jaboneta was, and were
of record on this particular point, being a part of the present when he signed the document, Isabelo
testimony of the said Isabeo Jena: Jena signing afterwards as a witness, at his
request, and in his presence and in the
Q. 1641 Who first signed the will? presence of the other two witnesses. Aniceto
Jalbuena then signed as a witness in the
presence of the testator, and in the presence of
A. 1641 I signed it first, and afterwards
the other two persons who signed as witnesses.
Aniceto and the others.
At that moment Isabelo Jena, being in a hurry
to leave, took his hat and left the room. As he
Q. 1641 Who were those others to whom was leaving the house Julio Javellana took the
you have just referred? pen in his hand and put himself in position to
sign the will as a witness, but did not sign in the
A. 1641 After the witness Aniceto signed presence of Isabelo Jena; but nevertheless,
the will I left the house, because I was in a hurry, after Jena had left the room the said Julio
and at the moment when I was leaving I saw Javellana signed as a witness in the presence
Julio Javellana with the pen in his hand in of the testator and of the witness Aniceto
position ready to sign (en actitud de firmar). I Jalbuena.
believe he signed, because he was at the table.
... We can not agree with so much of the above finding of
facts as holds that the signature of Javellana was not
Q. 1641 State positively whether Julio signed in the presence of Jena, in compliance with the
Javellana did or did not sign as a witness to the provisions of section 618 of the Code of Civil Procedure.
will. The fact that Jena was still in the room when he saw
Javellana moving his hand and pen in the act of affixing
A. 1641 I can't say certainly, because as his signature to the will, taken together with the
I was leaving the house I saw Julio Javellana testimony of the remaining witnesses which shows that
with the pen in his hand, in position ready to Javellana did in fact there and then sign his name to the
sign. I believe he signed. will, convinces us that the signature was affixed in the
presence of Jena. The fact that he was in the act of
Q. 1641 Why do you believe Julio leaving, and that his back was turned while a portion of
Javellana signed? the name of the witness was being written, is of no
importance. He, with the other witnesses and the
A. 1641 Because he had the pen in his testator, had assembled for the purpose of executing
hand, which was resting on the paper, though I the testament, and were together in the same room for
did not actually see him sign. that purpose, and at the moment when the witness
Javellana signed the document he was actually and
Q. 1641 Explain this contradictory physically present and in such position with relation to
statement. Javellana that he could see everything which took place
by merely casting his eyes in the proper direction, and
without any physical obstruction to prevent his doing so,
A. 1641 After I signed I asked permission therefore we are of opinion that the document was in
to leave, because I was in a hurry, and while I fact signed before he finally left the room.
was leaving Julio had already taken the pen in
his hand, as it appeared, for the purpose of
signing, and when I was near the door I The purpose of a statutory requirement that the
witness sign in the presence of the testator is
happened to turn my face and I saw that he had
said to be that the testator may have ocular
his hand with the pen resting on the will, moving
it as if for the purpose of signing. evidence of the identity of the instrument
subscribed by the witness and himself, and the
generally accepted tests of presence are vision
Q. 1641 State positively whether Julio and mental apprehension. (See Am. & Eng.
moved his hand with the pen as if for the Enc. of Law, vol. 30, p. 599, and cases there
purpose of signing, or whether he was signing cited.)
In the matter of Bedell (2 Connoly (N.Y.), 328) it was
held that it is sufficient if the witnesses are together for
the purpose of witnessing the execution of the will, and
in a position to actually see the testator write, if they
choose to do so; and there are many cases which lay
down the rule that the true test of vision is not whether
the testator actually saw the witness sign, but whether
he might have seen him sign, considering his mental
and physical condition and position at the time of the
subscription. (Spoonemore vs. Cables, 66 Mo., 579.)

The principles on which these cases rest and the tests

of presence as between the testator and the witnesses
are equally applicable in determining whether the
witnesses signed the instrument in the presence of
each other, as required by the statute, and applying
them to the facts proven in these proceedings we are of
opinion that the statutory requisites as to the execution
of the instrument were complied with, and that the lower
court erred in denying probate to the will on the ground
stated in the ruling appealed from.

We are of opinion from the evidence of record that the

instrument propounded in these proceedings was
satisfactorily proven to be the last will and testament of
Macario Jaboneta, deceased, and that it should
therefore be admitted to probate.

The judgment of the trial court is reversed, without

especial condemnation of costs, and after twenty days
the record will be returned to the court form whence it
came, where the proper orders will be entered in
conformance herewith. So ordered.
G.R. No. L-5971 February 27, 1911 subscription of each signature, must be such that they
may see each other sign if they choose to do so. This,
BEATRIZ NERA, ET AL., plaintiffs-appellees, of course, does not mean that the testator and the
vs. subscribing witnesses may be held to have executed
NARCISA RIMANDO, defendant-appellant. the instrument in the presence of each other if it
appears that they would not have been able to see each
Valerio Fontanilla and Andres Asprer for appellant. other sign at that moment, without changing their
Anacleto Diaz for appellees. relative positions or existing conditions. The evidence in
the case relied upon by the trial judge discloses that "at
the moment when the witness Javellana signed the
CARSON, J.:
document he was actually and physically present and in
such position with relation to Jaboneta that he could see
The only question raised by the evidence in this case everything that took place by merely casting his eyes in
as to the due execution of the instrument propounded the proper direction and without any physical
as a will in the court below, is whether one of the obstruction to prevent his doing so." And the decision
subscribing witnesses was present in the small room merely laid down the doctrine that the question whether
where it was executed at the time when the testator and the testator and the subscribing witnesses to an alleged
the other subscribing witnesses attached their will sign the instrument in the presence of each other
signatures; or whether at that time he was outside, does not depend upon proof of the fact that their eyes
some eight or ten feet away, in a large room connecting were actually cast upon the paper at the moment of its
with the smaller room by a doorway, across which was subscription by each of them, but that at that moment
hung a curtain which made it impossible for one in the existing conditions and their position with relation to
outside room to see the testator and the other each other were such that by merely casting the eyes
subscribing witnesses in the act of attaching their in the proper direction they could have seen each other
signatures to the instrument. sign. To extend the doctrine further would open the door
to the possibility of all manner of fraud, substitution, and
A majority of the members of the court is of opinion that the like, and would defeat the purpose for which this
this subscribing witness was in the small room with the particular condition is prescribed in the code as one of
testator and the other subscribing witnesses at the time the requisites in the execution of a will.
when they attached their signatures to the instrument,
and this finding, of course, disposes of the appeal and The decree entered by the court below admitting the
necessitates the affirmance of the decree admitting the instrument propounded therein to probate as the last
document to probate as the last will and testament of will and testament of Pedro Rimando, deceased, is
the deceased. affirmed with costs of this instance against the
appellant.
The trial judge does not appear to have considered the
determination of this question of fact of vital importance
in the determination of this case, as he was of opinion
that under the doctrine laid down in the case
of Jaboneta vs. Gustilo (5 Phil. Rep., 541) the alleged
fact that one of the subscribing witnesses was in the
outer room when the testator and the other describing
witnesses signed the instrument in the inner room, had
it been proven, would not be sufficient in itself to
invalidate the execution of the will. But we are
unanimously of opinion that had this subscribing
witness been proven to have been in the outer room at
the time when the testator and the other subscribing
witnesses attached their signatures to the instrument in
the inner room, it would have been invalid as a will, the
attaching of those signatures under circumstances not
being done "in the presence" of the witness in the outer
room. This because the line of vision from this witness
to the testator and the other subscribing witnesses
would necessarily have been impeded by the curtain
separating the inner from the outer one "at the moment
of inscription of each signature."

In the case just cited, on which the trial court relied, we

held that:

The true test of presence of the testator and the

witnesses in the execution of a will is not
whether they actually saw each other sign, but
whether they might have been seen each other
sign, had they chosen to do so, considering
their mental and physical condition and position
with relation to each other at the moment of
inscription of each signature.

But it is especially to be noted that the position of the

parties with relation to each other at the moment of the
[G.R. No. L-18979. June 30, 1964.] TO ONE PAGE OF A WILL NOT FATAL. — The
inadvertent failure of an attesting witness to
IN THE MATTER OF THE TESTATE ESTATE OF affix his signature to one page of a testament,
THE LATE JOSEFA VILLACORTA. CELSO due to the simultaneous lifting of two pages in
ICASIANO, Petitioner-Appellee, v. the course of signing, is not per se sufficient to
NATIVIDAD ICASIANO and ENRIQUE justify denial of probate.
ICASIANO, Oppositors-Appellants.
7. ID.; ID.; SIGNED CARBON DUPLICATE OF
Jose W. Diokno for Petitioner-Appellee. WILL NEEDS NO PUBLICATION. — That the
signed carbon duplicate of a will was produced
Rosendo J. Tansinsin for oppositor- and admitted without a new publication does not
appellant Natividad Ino. affect the jurisdiction of the probate court,
already conferred by the original publication of
Jaime R. Nuevas for oppositor-appellant the petition for probate, where the amended
Enriquez Ino. petition did not substantially alter the first one
filed but merely supplemented it by disclosing
the existence of said duplicate.
SYLLABUS

1. WILLS; PROBATE; POLICY OF COURT DECISION

AGAINST UNDUE CURTAILMENT OF
TESTAMENTARY PRIVILEGE. — The precedents
cited in the case at bar exemplify the Court’s REYES, J.B.L., J.:
policy to require satisfaction of the legal
requirements in the probate of a will in order to
guard against fraud and bad faith but without Appeal from an order of the Court of First
undue or unnecessary curtailment of the Instance of Manila admitting to probate the
testamentary privilege. document and its duplicate, marked as Exhibits
"A" and "A-1", as the true last will and testament
2. ID.; ID.; HANDWRITING EXPERT MUST HAVE of Josefa Villacorte, deceased, and appointing as
SUFFICIENT STANDARDS OF COMPARISON TO executor Celso Ino, the person named therein as
PROVE FORGERY OF TESTATRIX’S SIGNATURE. such.
— The opinion of a handwriting expert trying to
prove forgery of the testatrix’s signature fails to This special proceeding was begun on October 2,
convince the court, not only because it is directly 1958 by a petition for the allowance and
contradicted by another expert but principally admission to probate of the original, Exhibit "A"
because of the paucity of the standards used by as the alleged will of Josefa Villacorte, deceased,
him (only three other signatures), considering and for the appointment of petitioner Celso Ino
the advanced age of the testatrix, the evident as executor thereof.
variability of her signature, and the effect of
writing fatigue. The court set the proving of the alleged will for
November 8, 1958, and caused notice thereof to
3. ID.; ID.; VARIANCE IN INK COLOR NOT be published for three (3) successive weeks,
RELIABLE WHEN WRITINGS AFFIXED TO previous to the time appointed, in the newspaper
DIFFERENT KINDS OF PAPER. — The slight "Manila Chronicle", and also caused personal
variance in blueness of the ink in the admitted service of copies thereof upon the known heirs.
and questioned signatures does not appear
reliable, considering that the standard and On October 31, 1958, Natividad Ino, a daughter
challenged writings were affixed to different of the testatrix, filed her opposition; and on
kinds of paper. November 10, 1958, she petitioned to have
herself appointed as a special administrator, to
4. ID.; ID.; FRAUD OF UNDUE INFLUENCE, which proponent objected. Hence, on November
DIVERSITY OF APPORTIONMENT AND 18, 1958, the court issued an order appointing
PROHIBITION AGAINST CONTEST NO EVIDENCE the Philippine Trust Company as special
OF. — Neither diversity of apportionment nor administrator.
prohibition against contest is evidence of fraud
or undue influence in the execution of a will. On February 18, 1959, Enrique Ino, a son of the
testatrix, also filed a manifestation adopting as
5. ID.; ID.; FRAUD AND UNDUE INFLUENCE ARE his own Natividad’s opposition to the probate of
REPUGNANT ALLEGATIONS. — Allegation of the alleged will.
fraud and undue influence are mutually
repugnant and exclude each other; their joining On March 19, 1959, the petitioner proponent
as grounds for opposing probate shows absence commenced the introduction of his evidence; but
of definite evidence against the validity of the on June 1, 1959, he filed a motion for the
will. admission of an amended and supplemental
petition, alleging that the decedent left a will
6. ID.; ID.; INADVERTENT FAILURE OF AN executed in duplicate with all the legal
ATTESTING WITNESS TO AFFIX HIS SIGNATURE requirements, and that he was, on that date,
submitting the signed duplicate (Exhibit "A-1"), on the left margin of each and every page
which he allegedly found only on or about May thereof by the testatrix herself and attested and
26, 1959. On June 17, 1959, oppositors subscribed by the three mentioned witnesses in
Natividad Ino de Gomez and Enrique Ino filed the testatrix’s presence and in that of one
their joint opposition to the admission of the another as witnesses (except for the missing
amended and supplemental petition, but by signature of attorney Natividad on page three
order of July 20, 1959, the court admitted said (3) of the original; that pages of the original and
petition; and on July 30, 1959, oppositor duplicate of said will were duly numbered; that
Natividad Ino filed her amended opposition. the attestation clause thereof contains all the
Thereafter, the parties presented their facts required by law to be recited therein and is
respective evidence, and after several hearings signed by the aforesaid attesting witnesses; that
the court issued the order admitting the will and the will is written in the language known to and
its duplicate to probate. From this order, the spoken by the testatrix; that the attestation
oppositors appealed directly to this Court, the clause is in a language also known to and spoken
amount involved being over P200,000.00, on the by the witnesses; that the will was executed on
ground that the same is contrary to law and the one single occasion in duplicate copies; and that
evidence. chanrobles virtua l lawlibra ry both the original and the duplicate copy were
duly acknowledged before Notary Public Jose
The evidence presented for the petitioner is to Oyengco Ong of Manila on the same date — June
the effect that Josefa Villacorte died in the City 2, 1956.
of Manila on September 12, 1958; that on June
2, 1956, the late Josefa Villacorte executed a last Witness Natividad, who testified on his failure to
will and testament in duplicate at the house of sign page three (3) of the original, admits that
her daughter Mrs. Felisa Ino at Pedro Guevara he may have lifted two pages instead of one
Street, Manila, published before and attested by when he signed the same, but affirmed that page
three instrumental witnesses, namely; attorneys three (3) was signed in his presence.
Justo P. Torres, Jr. and Jose V. Natividad, and
Dr. Vinicio B. Diy; that the will was Oppositors-appellants in turn introduced expert
acknowledged by the testatrix and by the said testimony to the effect that the signatures of the
three instrumental witnesses on the same date testatrix in the duplicate (Exhibit A-1) are not
before attorney Jose Oyengco Ong, Notary Public genuine, nor were they written or affixed on the
in and for the City of Manila; and that the will same occasion as the original, and further aver
was actually prepared by attorney Fermin that granting that the documents were genuine,
Samson, who was also present during the they were executed through mistake and with
execution and signing of the decedent’s last will undue influence and pressure because the
and testament, together with former Governor testatrix was deceived into adopting as her last
Emilio Rustia of Bulacan, Judge Ramon Ino, and will and testament the wishes of those who will
a little girl. Of the said three instrumental stand to benefit from the provisions of the will,
witnesses to the execution of the decedent’s last as may be inferred from the facts and
will and testament attorneys Torres and circumstances surrounding the execution of the
Natividad were in the Philippines at the time of will and the provisions and dispositions thereof,
the hearing, and both testified as to the due whereby proponents- appellees stand to profit
execution and authenticity of the said will. So did from properties held by them as attorneys- in-
the Notary Public before whom the will was fact of the deceased and not enumerated or
acknowledged by the testatrix and attesting mentioned therein, while oppositors-appellants
witnesses, and also attorney Fermin Samson, are enjoined not to look for other properties not
who actually prepared the document. The latter mentioned in the will, and not to oppose the
also testified upon cross examination that he probate of it, on penalty of forfeiting their share
prepared one original and two copies of Josefa in the portion of free disposal.
Villacorte’s last will and testament at his house
in Baliuag, Bulacan, but he brought only one We have examined the record and are satisfied,
original and one signed copy to Manila, retaining as the trial court was, that the testatrix signed
one unsigned copy in Bulacan. both original and duplicate copies (Exhibits "A"
and "A-1", respectively) of the will
The records show that the original of the will, spontaneously, on the same occasion, in the
which was surrendered simultaneously with the presence of the three attesting witnesses, the
filing of the petition and marked as Exhibit "A", notary public who acknowledged the will, and
consists of five pages, and while signed at the Atty. Samson, who actually prepared the
end and in every page, it does not contain the documents; that the will and its duplicate were
signature of one of the attesting witnesses, Atty. executed in Tagalog, a language known to and
Jose V. Natividad, on page three (3) thereof; but spoken by both the testator and the witnesses,
the duplicate copy attached to the amended and and read to and by the testatrix and Atty. Fermin
supplemental petition and marked as Exhibit "A- Samson together before they were actually
1" is signed by the testatrix and her three signed; that the attestation clause is also in a
attesting witnesses in each and every page. language known to and spoken by the testatrix
and the witnesses. The opinion of expert for
The testimony presented by the proponents of oppositors, Mr. Felipe Logan, that the signatures
the will tends to show that the original of the will of the testatrix appealing in the duplicate original
and its duplicate were subscribed at the end and were not written by the same hand, which wrote
the signatures in the original will leaves us page is assured not only the fact that the
unconvinced, not merely because it is directly testatrix and two other witnesses did sign the
contradicted by expert Martin Ramos for the defective page, but also by its bearing the
proponents, but principally because of the coincident imprint of the seal of the notary public
paucity of the standards used by him to support before whom the testament was ratified by
the conclusion that the differences between the testatrix and all three witnesses. The law should
standard and questioned signatures are beyond not be so strictly and literally interpreted as to
the writer’s range of normal scriptural variation. penalize the testatrix on account of the
The expert has, in fact, used as standards only inadvertence of a single witness over whose
three other signatures of the testatrix besides conduct she had no control, where the purpose
those affixed to the original of the testament of the law to guarantee the identity of the
(Exh. A); and we feel that with so few standards testament and its component pages is
the expert’s opinion that the signatures in the sufficiently attained, no intentional or deliberate
duplicate could not be those of the testatrix deviation existed, and the evidence on record
becomes extremely hazardous. This is attests to the full observance of the statutory
particularly so since the comparison charts Nos. requisites. Otherwise, as stated in Vda. de Gil v.
3 and 4 fail to show convincingly that there are Murciano, 88 Phil. 260; 49 Off. Gaz. 1459, at
radical differences that would justify the charge 1479 (decision on reconsideration) "witnesses
of forgery, taking into account the advanced age may sabotage the will by muddling or bungling
of the testatrix, the evident variability of her it or the attestation clause."
signatures, and the effect of writing fatigue, the
duplicate being signed right after the original. That the failure of witness Natividad to sign page
These factors were not discussed by the expert. three (3) was entirely through pure oversight is
shown by his own testimony as well as by the
Similarly, the alleged slight variance in blueness duplicate copy of the will, which bears a
of the ink in the admitted and questioned complete set of signatures in every page. The
signatures does not appear reliable, considering text of the attestation clause and the
that standard and challenged writings were acknowledgment before the Notary Public
affixed to different kinds of paper, with different likewise evidence that no one was aware of the
surfaces and reflecting power. On the whole, defect at the time.
therefore, we do not find the testimony of the
oppositor’s expert sufficient to overcome that of This would not be the first time that this Court
the notary and the two instrumental witnesses, departs from a strict and literal application of the
Torres and Natividad (Dr. Diy, being in the statutory requirements, where the purposes of
United States during the trial, did not testify). the law are otherwise satisfied. Thus, despite the
literal tenor of the law, this Court has held that
Nor do we find adequate evidence of fraud or a testament, with the only page signed at its foot
undue influence. The fact that some heirs are by testator and witnesses, but not in the left
more favored than others is proof of neither (see margin, could nevertheless be probated
In re Butalid, 10 Phil. 27; Bugnao v. Ubag, 14 (Abangan v. Abangan, 41 Phil. 476); and that
Phil. 163; Pecson v. Coronel, 45 Phil. 216). despite the requirement for the correlative
Diversity of apportionment is the usual reason lettering of the pages of a will, the failure to
for making a testament; otherwise, the decedent mark the first page either by letters or numbers
might as well die intestate. The testamentary is not a fatal defect (Lopez v. Liboro, 81 Phil.
disposition that the heirs should not inquire into 429). These precedents exemplify the Court’s
other property and that they should respect the policy to require satisfaction of the legal
distribution made in the will, under penalty of requirements in order to guard against fraud and
forfeiture of their shares in the free part, do not bad faith but without undue or unnecessary
suffice to prove fraud or undue influence. They curtailment of the testamentary privilege.
appear motivated by the desire to prevent
prolonged litigation which, as shown by ordinary The appellants also argue that since the original
experience, often results in a sizeable portion of of the will is in existence and available, the
the estate being diverted into the hands of non- duplicate (Exh. A-1) is not entitled to probate.
heirs and speculators. Whether these clauses are Since they opposed probate of the original
valid or not is a matter to be litigated on another because it lacked one signature in its third page,
occasion. It is also well to note that, as remarked it is easily discerned that oppositors-appellants
by the Court of Appeals in Sideco v. Sideco, 45 run here into a dilemma: if the original is
Off. Gaz. 168, fraud and undue influence are defective and invalid, then in law there is no
mutually repugnant and exclude each other; other will but the duly signed carbon duplicate
their joining as grounds for opposing probate (Exh. A-1), and the same is probatable. If the
shows absence of definite evidence against the original is valid and can be probated, then the
validity of the will. objection to the signed duplicate need not be
considered, being superfluous and irrelevant. At
On the question of law, we hold that the any rate, said duplicate, Exhibit A-1, serves to
inadvertent failure of one witness to affix his prove that the omission of one signature in the
signature to one page of a testament, due to the third page of the original testament was
simultaneous lifting of two pages in the course inadvertent and not intentional.
of signing, is not per se sufficient to justify denial
of probate. Impossibility of substitution of this That the carbon duplicate, Exhibit A-1, was
produced and admitted without a new
publication does not affect the jurisdiction of the
probate court, already conferred by the original
publication of the petition for probate. The
amended petition did not substantially alter the
one first filed, but merely supplemented it by
disclosing the existence of the duplicate, and no
showing is made that new interests were
involved (the contents of Exhibit A and A-1 are
admittedly identical); and appellants were duly
notified of the proposed amendment. It is
nowhere proved or claimed that the amendment
deprived the appellants of any substantial right,
and we see no error in admitting the amended
petition.

IN VIEW OF THE FOREGOING, the decision

appealed from is affirmed, with costs against
appellants.
G.R. No. L-13431 November 12, 1919 will are written on one sheet only, the object of the
statute disappears because the removal of this single
In re will of Ana Abangan. sheet, although unnumbered, cannot be hidden.
GERTRUDIS ABANGAN, executrix-appellee,
vs. What has been said is also applicable to the attestation
ANASTACIA ABANGAN, ET AL., opponents- clause. Wherefore, without considering whether or not
appellants. this clause is an essential part of the will, we hold that
in the one accompanying the will in question, the
Filemon Sotto for appellants. signatures of the testatrix and of the three witnesses on
M. Jesus Cuenco for appellee. the margin and the numbering of the pages of the sheet
are formalities not required by the statute. Moreover,
referring specially to the signature of the testatrix, we
can add that same is not necessary in the attestation
clause because this, as its name implies, appertains
only to the witnesses and not to the testator since the
AVANCEÑA, J.: latter does not attest, but executes, the will.

On September 19, 1917, the Court of First Instance of Synthesizing our opinion, we hold that in a will
Cebu admitted to probate Ana Abangan's will executed consisting of two sheets the first of which contains all
July, 1916. From this decision the opponent's appealed. the testamentary dispositions and is signed at the
bottom by the testator and three witnesses and the
Said document, duly probated as Ana Abangan's will, second contains only the attestation clause and is
consists of two sheets, the first of which contains all of signed also at the bottom by the three witnesses, it is
the disposition of the testatrix, duly signed at the bottom not necessary that both sheets be further signed on
by Martin Montalban (in the name and under the their margins by the testator and the witnesses, or be
direction of the testatrix) and by three witnesses. The paged.
following sheet contains only the attestation clause duly
signed at the bottom by the three instrumental The object of the solemnities surrounding the execution
witnesses. Neither of these sheets is signed on the left of wills is to close the door against bad faith and fraud,
margin by the testatrix and the three witnesses, nor to avoid substitution of wills and testaments and to
numbered by letters; and these omissions, according to guaranty their truth and authenticity. Therefore the laws
appellants' contention, are defects whereby the probate on this subject should be interpreted in such a way as
of the will should have been denied. We are of the to attain these primordal ends. But, on the other hand,
opinion that the will was duly admitted to probate. 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
In requiring that each and every sheet of the will should the right to make a will. So when an interpretation
also be signed on the left margin by the testator and already given assures such ends, any other
three witnesses in the presence of each other, Act No. interpretation whatsoever, that adds nothing but
2645 (which is the one applicable in the case) evidently demands more requisites entirely unnecessary, useless
has for its object (referring to the body of the will itself) and frustative of the testator's last will, must be
to avoid the substitution of any of said sheets, thereby disregarded. lawphil.net

changing the testator's dispositions. But when these

dispositions are wholly written on only one sheet signed As another ground for this appeal, it is alleged the
at the bottom by the testator and three witnesses (as records do not show that the testarix knew the dialect in
the instant case), their signatures on the left margin of which the will is written. But the circumstance appearing
said sheet would be completely purposeless. In in the will itself that same was executed in the city of
requiring this signature on the margin, the statute took Cebu and in the dialect of this locality where the testatrix
into consideration, undoubtedly, the case of a will was a neighbor is enough, in the absence of any proof
written on several sheets and must have referred to the to the contrary, to presume that she knew this dialect in
sheets which the testator and the witnesses do not have which this will is written.
to sign at the bottom. A different interpretation would
assume that the statute requires that this sheet, already
For the foregoing considerations, the judgment
signed at the bottom, be signed twice. We cannot
appealed from is hereby affirmed with costs against the
attribute to the statute such an intention. As these
appellants. So ordered.
signatures must be written by the testator and the
witnesses in the presence of each other, it appears that,
if the signatures at the bottom of the sheet guaranties
its authenticity, another signature on its left margin
would be unneccessary; and if they do not guaranty,
same signatures, affixed on another part of same sheet,
would add nothing. We cannot assume that the statute
regards of such importance the place where the testator
and the witnesses must sign on the sheet that it would
consider that their signatures written on the bottom do
not guaranty the authenticity of the sheet but, if
repeated on the margin, give sufficient security.

In requiring that each and every page of a will must be

numbered correlatively in letters placed on the upper
part of the sheet, it is likewise clear that the object of Act
No. 2645 is to know whether any sheet of the will has
been removed. But, when all the dispositive parts of a
G.R. No. L-36033 November 5, 1982 station at Pasig, Rizal. The said motions or incidents
IN THE MATTER OF THE PETITION FOR THE were still pending resolution when respondent Judge
PROBATE OF THE WILL OF DOROTEA PEREZ, Avelino S. Rosal assumed the position of presiding
(deceased): APOLONIO TABOADA, petitioner, judge of the respondent court.
vs.
HON. AVELINO S. ROSAL, as Judge of Court of Meanwhile, the petitioner filed a motion for the
First Instance of Southern Leyte, (Branch III, appointment of special administrator.
Maasin), respondent.
Subsequently, the new Judge denied the motion for
Erasmo M. Diola counsel for petition. reconsideration as well as the manifestation and/or
motion filed ex parte. In the same order of denial, the
Hon. Avelino S. Rosal in his own behalf. 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.

GUTIERREZ, JR. J.: The petitioner decided to file the present petition.

This is a petition for review of the orders issued by the For the validity of a formal notarial will, does Article 805
Court of First Instance of Southern Leyte, Branch III, in of the Civil Code require that the testatrix and all the
Special Proceedings No. R-1713, entitled "In the Matter three instrumental and attesting witnesses sign at the
of the Petition for Probate of the Will of Dorotea Perez, end of the will and in the presence of the testatrix and
Deceased; Apolonio Taboada, Petitioner", which of one another?
denied the probate of the will, the motion for
reconsideration and the motion for appointment of a Article 805 of the Civil Code provides:
special administrator.
Every will, other than a holographic will,
In the petition for probate filed with the respondent must be subscribed at the end thereof
court, the petitioner attached the alleged last will and by the testator himself or by the
testament of the late Dorotea Perez. Written in the testator's name written by some other
Cebuano-Visayan dialect, the will consists of two person in his presence, and by his
pages. The first page contains the entire testamentary express direction, and attested and
dispositions and is signed at the end or bottom of the subscribed by three or more credible
page by the testatrix alone and at the left hand margin witnesses in the presence of the
by the three (3) instrumental witnesses. The second testator and of one another.
page which contains the attestation clause and the
acknowledgment is signed at the end of the attestation The testator or the person requested by
clause by the three (3) attesting witnesses and at the him to write his name and the
left hand margin by the testatrix. instrumental witnesses of the will, shall
also sign, as aforesaid, each and every
Since no opposition was filed after the petitioner's page thereof, except the last, on the left
compliance with the requirement of publication, the trial margin, and all the pages shall be
court commissioned the branch clerk of court to receive numbered correlatively in letters placed
the petitioner's evidence. Accordingly, the petitioner on the upper part of each page.
submitted his evidence and presented Vicente
Timkang, one of the subscribing witnesses to the will, The attestation shall state the number of
who testified on its genuineness and due execution. pages used upon which the will is
written, and the fact that the testator
The trial court, thru then Presiding Judge Ramon C. signed the will and every page thereof,
Pamatian issued the questioned order denying the or caused some other person to write
probate of the will of Dorotea Perez for want of a his name, under his express direction,
formality in its execution. In the same order, the in the presence of the instrumental
petitioner was also required to submit the names of the witnesses, and that the lacier witnesses
intestate heirs with their corresponding addresses so and signed the will and the pages
that they could be properly notified and could intervene thereof in the presence of the testator
in the summary settlement of the estate. and of one another.

Instead of complying with the order of the trial court, the If the attestation clause is in a language
petitioner filed a manifestation and/or motion, ex not known to the witnesses, it shall be
parte praying for a thirty-day period within which to interpreted to the witnesses, it shall be
deliberate on any step to be taken as a result of the interpreted to them.
disallowance of the will. He also asked that the ten-day
period required by the court to submit the names of The respondent Judge interprets the above-quoted
intestate heirs with their addresses be held in provision of law to require that, for a notarial will to be
abeyance. valid, it is not enough that only the testatrix signs at the
"end" but an the three subscribing witnesses must also
The petitioner filed a motion for reconsideration of the sign at the same place or at the end, in the presence of
order denying the probate of the will. However, the the testatrix and of one another because the attesting
motion together with the previous manifestation and/or witnesses to a will attest not merely the will itself but
motion could not be acted upon by the Honorable also the signature of the testator. It is not sufficient
Ramon C. Pamatian due to his transfer to his new
compliance to sign the page, where the end of the will found the testimony sufficient to establish the validity of
is found, at the left hand margin of that page. the will.

On the other hand, the petitioner maintains that Article The objects of attestation and of subscription were fully
805 of the Civil Code does not make it a condition met and satisfied in the present case when the
precedent or a matter of absolute necessity for the instrumental witnesses signed at the left margin of the
extrinsic validity of the wig that the signatures of the sole page which contains all the testamentary
subscribing witnesses should be specifically located at dispositions, especially so when the will was properly
the end of the wig after the signature of the testatrix. He Identified by subscribing witness Vicente Timkang to be
contends that it would be absurd that the legislature the same will executed by the testatrix. There was no
intended to place so heavy an import on the space or question of fraud or substitution behind the questioned
particular location where the signatures are to be found order.
as long as this space or particular location wherein the
signatures are found is consistent with good faith and We have examined the will in question and noticed that
the honest frailties of human nature. the attestation clause failed to state the number of
pages used in writing the will. This would have been a
We find the petition meritorious. fatal defect were it not for the fact that, in this case, it is
discernible from the entire wig that it is really and
Undoubtedly, under Article 805 of the Civil Code, the actually composed of only two pages duly signed by the
will must be subscribed or signed at its end by the testatrix and her instrumental witnesses. As earlier
testator himself or by the testator's name written by stated, the first page which contains the entirety of the
another person in his presence, and by his express testamentary dispositions is signed by the testatrix at
direction, and attested and subscribed by three or more the end or at the bottom while the instrumental
credible witnesses in the presence of the testator and witnesses signed at the left margin. The other page
of one another. which is marked as "Pagina dos" comprises the
attestation clause and the acknowledgment. The
It must be noted that the law uses the acknowledgment itself states that "This Last Will and
terms attested and subscribed Attestation consists in Testament consists of two pages including this page".
witnessing the testator's execution of the will in order to
see and take note mentally that those things are, done In Singson v. Florentino, et al. (92 Phil. 161, 164), this
which the statute requires for the execution of a will and Court made the following observations with respect to
that the signature of the testator exists as a fact. On the the purpose of the requirement that the attestation
other hand, subscription is the signing of the witnesses' clause must state the number of pages used:
names upon the same paper for the purpose of
Identification of such paper as the will which was The law referred to is article 618 of the
executed by the testator. (Ragsdale v. Hill, 269 SW 2d Code of Civil Procedure, as amended
911). by Act No. 2645, which requires that the
attestation clause shall state the
Insofar as the requirement of subscription is concerned, number of pages or sheets upon which
it is our considered view that the will in this case was the win is written, which requirement
subscribed in a manner which fully satisfies the purpose has been held to be mandatory as an
of Identification. effective safeguard against the
possibility of interpolation or omission of
The signatures of the instrumental witnesses on the left some of the pages of the will to the
margin of the first page of the will attested not only to prejudice of the heirs to whom the
the genuineness of the signature of the testatrix but also property is intended to be bequeathed
the due execution of the will as embodied in the (In re will of Andrada, 42 Phil., 180; Uy
attestation clause. Coque vs. Navas L. Sioca, 43 Phil. 405;
Gumban vs. Gorecho, 50 Phil. 30;
Quinto vs. Morata, 54 Phil. 481;
While perfection in the drafting of a will may be
Echevarria vs. Sarmiento, 66 Phil. 611).
desirable, unsubstantial departure from the usual forms
The ratio decidendi of these cases
should be ignored, especially where the authenticity of
seems to be that the attestation clause
the will is not assailed. (Gonzales v. Gonzales, 90 Phil.
must contain a statement of the number
444, 449).
of sheets or pages composing the will
and that if this is missing or is omitted, it
The law is to be liberally construed, "the underlying and will have the effect of invalidating the
fundamental objective permeating the provisions on the will if the deficiency cannot be supplied,
law on wills in this project consists in the liberalization not by evidence aliunde, but by a
of the manner of their execution with the end in view of consideration or examination of the will
giving the testator more freedom in expressing his last itself. But here the situation is different.
wishes but with sufficient safeguards and restrictions to While the attestation clause does not
prevent the commission of fraud and the exercise of state the number of sheets or pages
undue and improper pressure and influence upon the upon which the will is written, however,
testator. This objective is in accord with the modern the last part of the body of the will
tendency in respect to the formalities in the execution of contains a statement that it is composed
a will" (Report of the Code commission, p. 103). of eight pages, which circumstance in
our opinion takes this case out of the
Parenthetically, Judge Ramon C. Pamatian stated in his rigid rule of construction and places it
questioned order that were not for the defect in the within the realm of similar cases where
place of signatures of the witnesses, he would have 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.
G.R. No. 147145 January 31, 2005 In an order dated 23 November 1990, the RTC-
Kabankalan designated Belinda Caponong-Noble
TESTATE ESTATE OF THE LATE ALIPIO ABADA, ("Caponong-Noble") Special Administratrix of the estate
BELINDA CAPONONG-NOBLE, petitioner, of Abada and Toray.9 Caponong-Noble moved for the
vs. dismissal of the petition for probate of the will of Abada.
ALIPIO ABAJA and NOEL ABELLAR, respondents. The RTC-Kabankalan denied the motion in an Order
dated 20 August 1991.10
DECISION
Sometime in 1993, during the proceedings, Presiding
CARPIO, J.: 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.
The Case
Thus, the RTC-Kabankalan rendered a Resolution
dated 22 June 1994, as follows:
Before the Court is a petition for review1 assailing the
Decision2 of the Court of Appeals of 12 January 2001 in
There having been sufficient notice to the heirs as
CA-G.R. CV No. 47644. The Court of Appeals
required by law; that there is substantial compliance
sustained the Resolution3 of the Regional Trial Court of
with the formalities of a Will as the law directs and that
Kabankalan, Negros Occidental, Branch 61 ("RTC-
the petitioner through his testimony and the deposition
Kabankalan"), admitting to probate the last will and
of Felix Gallinero was able to establish the regularity of
testament of Alipio Abada ("Abada").
the execution of the said Will and further, there being no
evidence of bad faith and fraud, or substitution of the
The Antecedent Facts said Will, the Last Will and Testament of Alipio Abada
dated June 4, 1932 is admitted and allowed probate.
Abada died sometime in May 1940.4 His widow Paula
Toray ("Toray") died sometime in September 1943. As prayed for by counsel, Noel Abbellar11 is appointed
Both died without legitimate children. administrator of the estate of Paula Toray who shall
discharge his duties as such after letters of
On 13 September 1968, Alipio C. Abaja ("Alipio") filed administration shall have been issued in his favor and
with the then Court of First Instance of Negros after taking his oath and filing a bond in the amount of
Occidental (now RTC-Kabankalan) a Ten Thousand (₱10,000.00) Pesos.
petition,5 docketed as SP No. 070 (313-8668), for the
probate of the last will and testament ("will") of Abada. Mrs. Belinda C. Noble, the present administratrix of the
Abada allegedly named as his testamentary heirs his estate of Alipio Abada shall continue discharging her
natural children Eulogio Abaja ("Eulogio") and Rosario duties as such until further orders from this Court.
Cordova. Alipio is the son of Eulogio.
SO ORDERED.12
Nicanor Caponong ("Caponong") opposed the petition
on the ground that Abada left no will when he died in
The RTC-Kabankalan ruled on the only issue raised by
1940. Caponong further alleged that the will, if Abada
the oppositors in their motions to dismiss the petition for
really executed it, should be disallowed for the following
probate, that is, whether the will of Abada has an
reasons: (1) it was not executed and attested as
attestation clause as required by law. The RTC-
required by law; (2) it was not intended as the last will
Kabankalan further held that the failure of the
of the testator; and (3) it was procured by undue and
oppositors to raise any other matter forecloses all other
improper pressure and influence on the part of the
issues.
beneficiaries. Citing the same grounds invoked by
Caponong, the alleged intestate heirs of Abada,
namely, Joel, Julian, Paz, Evangeline, Geronimo, Not satisfied with the Resolution, Caponong-Noble filed
Humberto, Teodora and Elena Abada ("Joel Abada, et a notice of appeal.
al."), and Levi, Leandro, Antonio, Florian, Hernani and
Carmela Tronco ("Levi Tronco, et al."), also opposed In a Decision promulgated on 12 January 2001, the
the petition. The oppositors are the nephews, nieces Court of Appeals affirmed the Resolution of the RTC-
and grandchildren of Abada and Toray. Kabankalan. The appellate court found that the RTC-
Kabankalan properly admitted to probate the will of
On 13 September 1968, Alipio filed another Abada.
petition6 before the RTC-Kabankalan, docketed as SP
No. 071 (312-8669), for the probate of the last will and Hence, the present recourse by Caponong-Noble.
testament of Toray. Caponong, Joel Abada, et al., and
Levi Tronco, et al. opposed the petition on the same The Issues
grounds they cited in SP No. 070 (313-8668).
The petition raises the following issues:
On 20 September 1968, Caponong filed a
petition7 before the RTC-Kabankalan, docketed as SP 1. What laws apply to the probate of the last will
No. 069 (309), praying for the issuance in his name of of Abada;
letters of administration of the intestate estate of Abada
and Toray. 2. Whether the will of Abada requires
acknowledgment before a notary public;13
In an Order dated 14 August 1981, the RTC-
Kabankalan admitted to probate the will of Toray. Since 3. Whether the will must expressly state that it
the oppositors did not file any motion for is written in a language or dialect known to the
reconsideration, the order allowing the probate of testator;
Toray’s will became final and executory.8
 4. Whether the will of Abada has an attestation (4) The testator or the person requested by him
clause, and if so, whether the attestation clause to write his name and the instrumental
complies with the requirements of the witnesses of the will must sign each and every
applicable laws; page of the will on the left margin;

5. Whether Caponong-Noble is precluded from (5) The pages of the will must be numbered
raising the issue of whether the will of Abada is correlatively in letters placed on the upper part
written in a language known to Abada; of each sheet;

6. Whether evidence aliunde may be resorted (6) The attestation shall state the number of
to in the probate of the will of Abada. sheets or pages used, upon which the will is
written, and the fact that the testator signed the
The Ruling of the Court will and every page of the will, or caused some
other person to write his name, under his
The Court of Appeals did not err in sustaining the RTC- express direction, in the presence of three
Kabankalan in admitting to probate the will of Abada. 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.
The Applicable Law
Caponong-Noble asserts that the will of Abada does not
Abada executed his will on 4 June 1932. The laws in
indicate that it is written in a language or dialect known
force at that time are the Civil Code of 1889 or the Old
to the testator. Further, she maintains that the will is not
Civil Code, and Act No. 190 or the Code of Civil
acknowledged before a notary public. She cites in
Procedure14 which governed the execution of wills
particular Articles 804 and 805 of the Old Civil Code,
before the enactment of the New Civil Code.
thus:
The matter in dispute in the present case is
Art. 804. Every will must be in writing and executed in
the attestation clause in the will of Abada. Section 618
[a] language or dialect known to the testator.
of the Code of Civil Procedure, as amended by Act No.
2645,15 governs the form of the attestation clause of
Abada’s will.16 Section 618 of the Code of Civil Art. 806. Every will must be acknowledged before a
Procedure, as amended, provides: notary public by the testator and the witnesses. xxx18

SEC. 618. Requisites of will. – No will, except as Caponong-Noble actually cited Articles 804 and 806 of
provided in the preceding section,17 shall be valid to the New Civil Code.19 Article 804 of the Old Civil Code
pass any estate, real or personal, nor charge or affect is about the rights and obligations of administrators of
the same, unless it be written in the language or dialect the property of an absentee, while Article 806 of the Old
known by the testator and signed by him, or by the Civil Code defines a legitime.
testator’s name written by some other person in his
presence, and by his express direction, and attested Articles 804 and 806 of the New Civil Code are new
and subscribed by three or more credible witnesses in provisions. Article 804 of the New Civil Code is taken
the presence of the testator and of each other. The from Section 618 of the Code of Civil
testator or the person requested by him to write his Procedure.20 Article 806 of the New Civil Code is taken
name and the instrumental witnesses of the will, shall from Article 685 of the Old Civil Code21 which provides:
also sign, as aforesaid, each and every page thereof,
on the left margin, and said pages shall be numbered Art. 685. The notary and two of the witnesses who
correlatively in letters placed on the upper part of each authenticate the will must be acquainted with the
sheet. The attestation shall state the number of sheets testator, or, should they not know him, he shall be
or pages used, upon which the will is written, and the identified by two witnesses who are acquainted with him
fact that the testator signed the will and every page and are known to the notary and to the attesting
thereof, or caused some other person to write his name, witnesses. The notary and the witnesses shall also
under his express direction, in the presence of three endeavor to assure themselves that the testator has, in
witnesses, and the latter witnessed and signed the will their judgment, the legal capacity required to make a
and all pages thereof in the presence of the testator and will.
of each other.
Witnesses authenticating a will without the attendance
Requisites of a Will under the Code of Civil Procedure of a notary, in cases falling under Articles 700 and 701,
are also required to know the testator.
Under Section 618 of the Code of Civil Procedure, the
requisites of a will are the following: However, the Code of Civil Procedure22 repealed Article
685 of the Old Civil Code. Under the Code of Civil
(1) The will must be written in the language or Procedure, the intervention of a notary is not necessary
dialect known by the testator; in the execution of any will.23 Therefore, Abada’s will
does not require acknowledgment before a notary
(2) The will must be signed by the testator, or by public.1awphi1.nét

the testator’s name written by some other

person in his presence, and by his express Caponong-Noble points out that nowhere in the will can
direction; one discern that Abada knew the Spanish language.
She alleges that such defect is fatal and must result in
(3) The will must be attested and subscribed by the disallowance of the will. On this issue, the Court of
three or more credible witnesses in the Appeals held that the matter was not raised in the
presence of the testator and of each other; motion to dismiss, and that it is now too late to raise the
issue on appeal. We agree with Caponong-Noble that states that Abada signed the will and its every page in
the doctrine of estoppel does not apply in probate the presence of the witnesses.
proceedings.24 In addition, the language used in the will
is part of the requisites under Section 618 of the Code However, Caponong-Noble is correct in saying that the
of Civil Procedure and the Court deems it proper to pass attestation clause does not indicate the number of
upon this issue. witnesses. On this point, the Court agrees with the
appellate court in applying the rule on substantial
Nevertheless, Caponong-Noble’s contention must still compliance in determining the number of witnesses.
fail. There is no statutory requirement to state in the will While the attestation clause does not state the number
itself that the testator knew the language or dialect used of witnesses, a close inspection of the will shows that
in the will.25 This is a matter that a party may establish three witnesses signed it.
by proof aliunde.26 Caponong-Noble further argues that
Alipio, in his testimony, has failed, among others, to This Court has applied the rule on substantial
show that Abada knew or understood the contents of compliance even before the effectivity of the New Civil
the will and the Spanish language used in the will. Code. In Dichoso de Ticson v. De Gorostiza,30 the
However, Alipio testified that Abada used to gather Court recognized that there are two divergent
Spanish-speaking people in their place. In these tendencies in the law on wills, one being based on strict
gatherings, Abada and his companions would talk in the construction and the other on liberal construction.
Spanish language.27 This sufficiently proves that Abada In Dichoso, the Court noted that Abangan v.
speaks the Spanish language. Abangan,31 the basic case on the liberal construction, is
cited with approval in later decisions of the Court.
The Attestation Clause of Abada’s Will
In Adeva vda. De Leynez v. Leynez,32 the petitioner,
A scrutiny of Abada’s will shows that it has an arguing for liberal construction of applicable laws,
attestation clause. The attestation clause of Abada’s enumerated a long line of cases to support her
will reads: argument while the respondent, contending that the rule
on strict construction should apply, also cited a long
Suscrito y declarado por el testador Alipio Abada como series of cases to support his view. The Court, after
su ultima voluntad y testamento en presencia de examining the cases invoked by the parties, held:
nosotros, habiendo tambien el testador firmado en
nuestra presencia en el margen izquierdo de todas y x x x It is, of course, not possible to lay down a general
cada una de las hojas del mismo. Y en testimonio de rule, rigid and inflexible, which would be applicable to
ello, cada uno de nosotros lo firmamos en presencia de all cases. More than anything else, the facts and
nosotros y del testador al pie de este documento y en circumstances of record are to be considered in the
el margen izquierdo de todas y cada una de las dos application of any given rule. If the surrounding
hojas de que esta compuesto el mismo, las cuales circumstances point to a regular execution of the will,
estan paginadas correlativamente con las letras "UNO" and the instrument appears to have been executed
y "DOS’ en la parte superior de la carrilla.28 substantially in accordance with the requirements of the
law, the inclination should, in the absence of any
Caponong-Noble proceeds to point out several defects suggestion of bad faith, forgery or fraud, lean towards
in the attestation clause. Caponong-Noble alleges that its admission to probate, although the document may
the attestation clause fails to state the number of pages suffer from some imperfection of language, or other
on which the will is written. non-essential defect. x x x.

The allegation has no merit. The phrase "en el margen An attestation clause is made for the purpose of
izquierdo de todas y cada una de las dos hojas de que preserving, in permanent form, a record of the facts
esta compuesto el mismo" which means "in the left attending the execution of the will, so that in case of
margin of each and every one of the two pages failure of the memory of the subscribing witnesses, or
consisting of the same" shows that the will consists of other casualty, they may still be proved. (Thompson on
two pages. The pages are numbered correlatively with Wills, 2d ed., sec. 132.) A will, therefore, should not be
the letters "ONE" and "TWO" as can be gleaned from rejected where its attestation clause serves the purpose
the phrase "las cuales estan paginadas of the law. x x x 33 1a\^/phi 1.net

correlativamente con las letras "UNO" y "DOS."

We rule to apply the liberal construction in the probate
Caponong-Noble further alleges that the attestation of Abada’s will. Abada’s will clearly shows four
clause fails to state expressly that the testator signed signatures: that of Abada and of three other persons. It
the will and its every page in the presence of three is reasonable to conclude that there are three witnesses
witnesses. She then faults the Court of Appeals for to the will. The question on the number of the witnesses
applying to the present case the rule on substantial is answered by an examination of the will itself and
compliance found in Article 809 of the New Civil Code.29 without the need for presentation of evidence aliunde.
The Court explained the extent and limits of the rule on
The first sentence of the attestation clause reads: liberal construction, thus:
"Suscrito y declarado por el testador Alipio Abada como
su ultima voluntad y testamento en presencia de [T]he so-called liberal rule does not offer any puzzle or
nosotros, habiendo tambien el testador firmado en difficulty, nor does it open the door to serious
nuestra presencia en el margen izquierdo de todas y consequences. The later decisions do tell us when and
cada una de las hojas del mismo." The English where to stop; they draw the dividing line with
translation is: "Subscribed and professed by the testator precision. They do not allow evidence aliunde to fill
Alipio Abada as his last will and testament in our a void in any part of the document or supply
presence, the testator having also signed it in our missing details that should appear in the will
presence on the left margin of each and every one of itself. They only permit a probe into the will, an
l^vvph i1.net

the pages of the same." The attestation clause clearly 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. 157451 December 16, 2005 ‘LAST WILL AND TESTAMENT OF PLACIDO
VALMONTE IN THE NAME OF THE LORD AMEN:
LETICIA VALMONTE ORTEGA, Petitioner,
vs. ‘I, PLACIDO VALMONTE, of legal age, married to
JOSEFINA C. VALMONTE, Respondent. Josefina Cabansag Valmonte, and a resident of 9200
Catmon Street, Makati, Metro Manila, 83 years of age
DECISION and being of sound and disposing mind and memory,
do hereby declare this to be my last will and testament:
PANGANIBAN, J.:
1. It is my will that I be buried in the Catholic Cemetery,
The law favors the probate of a will. Upon those who under the auspices of the Catholic Church in
oppose it rests the burden of showing why it should not accordance with the rites and said Church and that a
be allowed. In the present case, petitioner has failed to suitable monument to be erected and provided my by
discharge this burden satisfactorily. For this reason, the executrix (wife) to perpetuate my memory in the minds
Court cannot attribute any reversible error on the part of of my family and friends;
the appellate tribunal that allowed the probate of the
will. 2. I give, devise and bequeath unto my loving wife,
JOSEFINA C. VALMONTE, one half (1/2) portion of the
The Case follow-described properties, which belongs to me as
[co-owner]:
Before the Court is a Petition for Review1 under Rule 45
of the Rules of Court, seeking to reverse and set aside a. Lot 4-A, Block 13 described on plan Psd-28575, LRC,
the December 12, 2002 Decision2 and the March 7, (GLRO), situated in Makati, Metro Manila, described
2003 Resolution3 of the Court of Appeals (CA) in CA-GR and covered by TCT No. 123468 of the Register of
CV No. 44296. The assailed Decision disposed as Deeds of Pasig, Metro-Manila registered jointly as co-
follows: owners with my deceased sister (Ciriaca Valmonte),
having share and share alike;
"WHEREFORE, the appeal is GRANTED, and the
Decision appealed from is REVERSED and SET b. 2-storey building standing on the above-described
ASIDE. In its place judgment is rendered approving and property, made of strong and mixed materials used as
allowing probate to the said last will and testament of my residence and my wife and located at No. 9200
Placido Valmonte and ordering the issuance of letters Catmon Street, Makati, Metro Manila also covered by
testamentary to the petitioner Josefina Valmonte. Let Tax Declaration No. A-025-00482, Makati, Metro-
this case be remanded to the court a quo for further and Manila, jointly in the name of my deceased sister,
concomitant proceedings."4 Ciriaca Valmonte and myself as co-owners, share and
share alike or equal co-owners thereof;
The assailed Resolution denied petitioner’s Motion for
Reconsideration. 3. All the rest, residue and remainder of my real and
personal properties, including my savings account bank
book in USA which is in the possession of my nephew,
The Facts
and all others whatsoever and wherever found, I give,
devise and bequeath to my said wife, Josefina C.
The facts were summarized in the assailed Decision of Valmonte;
the CA, as follows:
4. I hereby appoint my wife, Josefina C. Valmonte as
"x x x: Like so many others before him, Placido toiled sole executrix of my last will and testament, and it is my
and lived for a long time in the United States until he will that said executrix be exempt from filing a bond;
finally reached retirement. In 1980, Placido finally came
home to stay in the Philippines, and he lived in the
IN WITNESS WHEREOF, I have hereunto set my hand
house and lot located at #9200 Catmon St., San
this 15th day of June 1983 in Quezon City, Philippines.’
Antonio Village, Makati, which he owned in common
with his sister Ciriaca Valmonte and titled in their names
in TCT 123468. Two years after his arrival from the "The allowance to probate of this will was opposed by
United States and at the age of 80 he wed Josefina who Leticia on the grounds that:
was then 28 years old, in a ceremony solemnized by
Judge Perfecto Laguio, Jr. on February 5, 1982. But in 1. Petitioner failed to allege all assets of the testator,
a little more than two years of wedded bliss, Placido especially those found in the USA;
died on October 8, 1984 of a cause written down
as COR PULMONALE. 2. Petitioner failed to state the names, ages, and
residences of the heirs of the testator; or to give them
"Placido executed a notarial last will and testament proper notice pursuant to law;
written in English and consisting of two (2) pages, and
dated June 15, 1983 but acknowledged only on August 3. Will was not executed and attested as required by
9, 1983. The first page contains the entire testamentary law and legal solemnities and formalities were not
dispositions and a part of the attestation clause, and complied with;
was signed at the end or bottom of that page by the
testator and on the left hand margin by the three 4. Testator was mentally incapable to make a will at the
instrumental witnesses. The second page contains the time of the alleged execution he being in an advance
continuation of the attestation clause and the sate of senility;
acknowledgment, and was signed by the witnesses at
the end of the attestation clause and again on the left 5. Will was executed under duress, or the influence of
hand margin. It provides in the body that: fear or threats;
6. Will was procured by undue and improper influence document to appear dirty. The notary public also
and pressure on the part of the petitioner and/or her testified that to his observation the testator was
agents and/or assistants; and/or physically and mentally capable at the time he affixed
his signature on the will.
7. Signature of testator was procured by fraud, or trick,
and he did not intend that the instrument should be his "The attesting witnesses to the will corroborated the
will at the time of affixing his signature thereto;’ testimony of the notary public, and testified that the
testator went alone to the house of spouses Eugenio
and she also opposed the appointment as Executrix of and Feliza Gomez at GSIS Village, Quezon City and
Josefina alleging her want of understanding and requested them to accompany him to the house of Atty.
integrity. Floro Sarmiento purposely for his intended will; that
after giving his instructions to Atty. Floro Sarmiento,
"At the hearing, the petitioner Josefina testified and they were told to return on June 15, 1983; that they
called as witnesses the notary public Atty. Floro returned on June 15, 1983 for the execution of the will
Sarmiento who prepared and notarized the will, and the but were asked to come back instead on August 9, 1983
instrumental witnesses spouses Eugenio Gomez, Jr. because of the absence of the notary public; that the
and Feliza Gomez and Josie Collado. For the testator executed the will in question in their presence
opposition, the oppositor Leticia and her daughter Mary while he was of sound and disposing mind and that he
Jane Ortega testified. was strong and in good health; that the contents of the
will was explained by the notary public in the Ilocano
and Tagalog dialect and that all of them as witnesses
"According to Josefina after her marriage with the
attested and signed the will in the presence of the
testator they lived in her parents house at Salingcob,
testator and of each other. And that during the
Bacnotan, La Union but they came to Manila every
execution, the testator’s wife, Josefina was not with
month to get his $366.00 monthly pension and stayed
them.
at the said Makati residence. There were times though
when to shave off on expenses, the testator would
travel alone. And it was in one of his travels by his "The oppositor Leticia declared that Josefina should not
lonesome self when the notarial will was made. The will inherit alone because aside from her there are other
was witnessed by the spouses Eugenio and Feliza children from the siblings of Placido who are just as
Gomez, who were their wedding sponsors, and by Josie entitled to inherit from him. She attacked the mental
Collado. Josefina said she had no knowledge of the capacity of the testator, declaring that at the time of the
existence of the last will and testament of her husband, execution of the notarial will the testator was already 83
but just serendipitously found it in his attache case after years old and was no longer of sound mind. She knew
his death. It was only then that she learned that the whereof she spoke because in 1983 Placido lived in the
testator bequeathed to her his properties and she was Makati residence and asked Leticia’s family to live with
named the executrix in the said will. To her estimate, him and they took care of him. During that time, the
the value of property both real and personal left by the testator’s physical and mental condition showed
testator is worth more or less P100,000.00. Josefina deterioration, aberrations and senility. This was
declared too that the testator never suffered mental corroborated by her daughter Mary Jane Ortega for
infirmity because despite his old age he went alone to whom Placido took a fancy and wanted to marry.
the market which is two to three kilometers from their
home cooked and cleaned the kitchen and sometimes "Sifting through the evidence, the court a quo held
if she could not accompany him, even traveled to Manila that [t]he evidence adduced, reduces the opposition to
alone to claim his monthly pension. Josefina also two grounds, namely:
asserts that her husband was in good health and that
he was hospitalized only because of a cold but which 1. Non-compliance with the legal solemnities and
eventually resulted in his death. formalities in the execution and attestation of the will;
and
"Notary Public Floro Sarmiento, the notary public who
notarized the testator’s will, testified that it was in the 2. Mental incapacity of the testator at the time of the
first week of June 1983 when the testator together with execution of the will as he was then in an advanced
the three witnesses of the will went to his house cum state of senility
law office and requested him to prepare his last will and
testament. After the testator instructed him on the terms "It then found these grounds extant and proven, and
and dispositions he wanted on the will, the notary public accordingly disallowed probate."5
told them to come back on June 15, 1983 to give him
time to prepare it. After he had prepared the will the Ruling of the Court of Appeals
notary public kept it safely hidden and locked in his
drawer. The testator and his witnesses returned on the
Reversing the trial court, the appellate court admitted
appointed date but the notary public was out of town so
the will of Placido Valmonte to probate. The CA upheld
they were instructed by his wife to come back on August
the credibility of the notary public and the subscribing
9, 1983, and which they did. Before the testator and his
witnesses who had acknowledged the due execution of
witnesses signed the prepared will, the notary public
the will. Moreover, it held that the testator had
explained to them each and every term thereof in
testamentary capacity at the time of the execution of the
Ilocano, a dialect which the testator spoke and
will. It added that his "sexual exhibitionism and
understood. He likewise explained that though it
unhygienic, crude and impolite ways"6 did not make him
appears that the will was signed by the testator and his
a person of unsound mind.
witnesses on June 15, 1983, the day when it should
have been executed had he not gone out of town, the
formal execution was actually on August 9, 1983. He Hence, this Petition.7
reasoned that he no longer changed the typewritten
date of June 15, 1983 because he did not like the Issues
Petitioner raises the following issues for our In the present case, petitioner assails the validity of
consideration: Placido Valmonte’s will by imputing fraud in its
execution and challenging the testator’s state of mind at
"I. the time.

Whether or not the findings of the probate court are Existence of Fraud in the
entitled to great respect.
Execution of a Will
"II.
Petitioner does not dispute the due observance of the
Whether or not the signature of Placido Valmonte in the formalities in the execution of the will, but maintains that
subject will was procured by fraud or trickery, and that the circumstances surrounding it are indicative of the
Placido Valmonte never intended that the instrument existence of fraud. Particularly, she alleges that
should be his last will and testament. respondent, who is the testator’s wife and sole
beneficiary, conspired with the notary public and the
"III. three attesting witnesses in deceiving Placido to sign it.
Deception is allegedly reflected in the varying dates of
the execution and the attestation of the will.
Whether or not Placido Valmonte has testamentary
capacity at the time he allegedly executed the subject
will."8 Petitioner contends that it was "highly dubious for a
woman at the prime of her young life [to] almost
immediately plunge into marriage with a man who [was]
In short, petitioner assails the CA’s allowance of the
thrice her age x x x and who happened to be [a] Fil-
probate of the will of Placido Valmonte.
American pensionado,"11 thus casting doubt on the
intention of respondent in seeking the probate of the
This Court’s Ruling will. Moreover, it supposedly "defies human reason,
logic and common experience"12 for an old man with a
The Petition has no merit. severe psychological condition to have willingly signed
a last will and testament.
Main Issue:
We are not convinced. Fraud "is a trick, secret device,
Probate of a Will false statement, or pretense, by which the subject of it
is cheated. It may be of such character that the testator
At the outset, we stress that only questions of law may is misled or deceived as to the nature or contents of the
be raised in a Petition for Review under Section 1 of document which he executes, or it may relate to some
Rule 45 of the Rules of Court. As an exception, extrinsic fact, in consequence of the deception
however, the evidence presented during the trial may regarding which the testator is led to make a certain will
be examined and the factual matters resolved by this which, but for the fraud, he would not have made."13
Court when, as in the instant case, the findings of fact
of the appellate court differ from those of the trial court.9 We stress that the party challenging the will bears the
burden of proving the existence of fraud at the time of
The fact that public policy favors the probate of a will its execution.14 The burden to show otherwise shifts to
does not necessarily mean that every will presented for the proponent of the will only upon a showing of credible
probate should be allowed. The law lays down the evidence of fraud.15 Unfortunately in this case, other
procedures and requisites that must be satisfied for the than the self-serving allegations of petitioner, no
probate of a will.10 Verily, Article 839 of the Civil Code evidence of fraud was ever presented.
states the instances when a will may be disallowed, as
follows: It is a settled doctrine that the omission of some
relatives does not affect the due execution of a
"Article 839. The will shall be disallowed in any of the will.16 That the testator was tricked into signing it was not
following cases: sufficiently established by the fact that he had instituted
his wife, who was more than fifty years his junior, as the
(1) If the formalities required by law have not been sole beneficiary; and disregarded petitioner and her
complied with; family, who were the ones who had taken "the cudgels
of taking care of [the testator] in his twilight years."17
(2) If the testator was insane, or otherwise mentally
incapable of making a will, at the time of its execution; Moreover, as correctly ruled by the appellate court, the
conflict between the dates appearing on the will does
(3) If it was executed through force or under duress, or not invalidate the document, "because the law does not
even require that a [notarial] will x x x be executed and
the influence of fear, or threats;
acknowledged on the same occasion."18 More important,
the will must be subscribed by the testator, as well as
(4) If it was procured by undue and improper pressure by three or more credible witnesses who must also
and influence, on the part of the beneficiary or of some attest to it in the presence of the testator and of one
other person; another.19 Furthermore, the testator and the witnesses
must acknowledge the will before a notary public.20 In
(5) If the signature of the testator was procured by fraud; any event, we agree with the CA that "the variance in
the dates of the will as to its supposed execution and
(6) If the testator acted by mistake or did not intend that attestation was satisfactorily and persuasively
the instrument he signed should be his will at the time explained by the notary public and the instrumental
of affixing his signature thereto." witnesses."21
The pertinent transcript of stenographic notes taken on Q Why did you have to go to the office of Atty. Floro
June 11, 1985, November 25, 1985, October 13, 1986, Sarmiento, three times?
and October 21, 1987 -- as quoted by the CA -- are
reproduced respectively as follows: xxxxxxxxx

"Atty. Floro Sarmiento: A The reason why we went there three times is that, the
first week of June was out first time. We went there to
Q You typed this document exhibit C, specifying the talk to Atty. Sarmiento and Placido Valmonte about the
date June 15 when the testator and his witnesses were last will and testament. After that what they have talked
supposed to be in your office? what will be placed in the testament, what Atty.
Sarmiento said was that he will go back on the 15th of
A Yes sir. June. When we returned on June 15, Atty. Sarmiento
was not there so we were not able to sign it, the will.
Q On June 15, 1983, did the testator and his witnesses That is why, for the third time we went there on August
come to your house? 9 and that was the time we affixed our signature. (tsn,
October 13, 1986, pp. 4-6)
A They did as of agreement but unfortunately, I was out
of town. Josie Collado:

xxxxxxxxx Q When you did not find Atty. Sarmiento in his house
on June 15, 1983, what transpired?
Q The document has been acknowledged on August 9,
1983 as per acknowledgement appearing therein. Was A The wife of Atty. Sarmiento told us that we will be back
this the actual date when the document was on August 9, 1983.
acknowledged?
Q And on August 9, 1983 did you go back to the house
A Yes sir. of Atty. Sarmiento?

Q What about the date when the testator and the three A Yes, Sir.
witnesses affixed their respective signature on the first
and second pages of exhibit C? Q For what purpose?

A On that particular date when it was acknowledged, A Our purpose is just to sign the will.
August 9, 1983.
Q Were you able to sign the will you mentioned?
Q Why did you not make the necessary correction on
the date appearing on the body of the document as well A Yes sir. (tsn, October 21, 1987, pp. 4-5)"22
as the attestation clause?
Notably, petitioner failed to substantiate her claim of a
A Because I do not like anymore to make some "grand conspiracy" in the commission of a fraud. There
alterations so I put it in my own handwriting August 9, was no showing that the witnesses of the proponent
1983 on the acknowledgement. (tsn, June 11, 1985, pp. stood to receive any benefit from the allowance of the
8-10) will. The testimonies of the three subscribing witnesses
and the notary are credible evidence of its due
Eugenio Gomez: execution.23 Their testimony favoring it and the finding
that it was executed in accordance with the formalities
Q It appears on the first page Mr. Witness that it is dated required by law should be affirmed, absent any showing
June 15, 1983, whereas in the acknowledgement it is of ill motives.24
dated August 9, 1983, will you look at this document
and tell us this discrepancy in the date? Capacity to Make a Will

A We went to Atty. Sarmiento together with Placido In determining the capacity of the testator to make a will,
Valmonte and the two witnesses; that was first week of the Civil Code gives the following guidelines:
June and Atty. Sarmiento told us to return on the 15th
of June but when we returned, Atty. Sarmiento was not "Article 798. In order to make a will it is essential that
there. the testator be of sound mind at the time of its
execution.
Q When you did not find Atty. Sarmiento on June 15,
1983, did you again go back? "Article 799. To be of sound mind, it is not necessary
that the testator be in full possession of all his reasoning
A We returned on the 9th of August and there we faculties, or that his mind be wholly unbroken,
signed. unimpaired, or shattered by disease, injury or other
cause.
Q This August 9, 1983 where you said it is there where
you signed, who were your companions? "It shall be sufficient if the testator was able at the time
of making the will to know the nature of the estate to be
A The two witnesses, me and Placido Valmonte. (tsn, disposed of, the proper objects of his bounty, and the
November 25, 1985, pp. 7-8) character of the testamentary act.

Felisa Gomez on cross-examination:

"Article 800. The law presumes that every person is of
sound mind, in the absence of proof to the contrary.

"The burden of proof that the testator was not of sound

mind at the time of making his dispositions is on the
person who opposes the probate of the will; but if the
testator, one month, or less, before making his will was
publicly known to be insane, the person who maintains
the validity of the will must prove that the testator made
it during a lucid interval."

According to Article 799, the three things that the

testator must have the ability to know to be considered
of sound mind are as follows: (1) the nature of the estate
to be disposed of, (2) the proper objects of the testator’s
bounty, and (3) the character of the testamentary act.
Applying this test to the present case, we find that the
appellate court was correct in holding that Placido had
testamentary capacity at the time of the execution of his
will.

It must be noted that despite his advanced age, he was

still able to identify accurately the kinds of property he
owned, the extent of his shares in them and even their
locations. As regards the proper objects of his bounty,
it was sufficient that he identified his wife as sole
beneficiary. As we have stated earlier, the omission of
some relatives from the will did not affect its formal
validity. There being no showing of fraud in its
execution, intent in its disposition becomes irrelevant.

Worth reiterating in determining soundness of mind

is Alsua-Betts v. CA,25 which held thus:

"Between the highest degree of soundness of mind and

memory which unquestionably carries with it full
testamentary capacity, and that degrees of mental
aberration generally known as insanity or idiocy, there
are numberless degrees of mental capacity or
incapacity and while on one hand it has been held that
mere weakness of mind, or partial imbecility from
disease of body, or from age, will not render a person
incapable of making a will; a weak or feebleminded
person may make a valid will, provided he has
understanding and memory sufficient to enable him to
know what he is about to do and how or to whom he is
disposing of his property. To constitute a sound and
disposing mind, it is not necessary that the mind be
unbroken or unimpaired or unshattered by disease or
otherwise. It has been held that testamentary incapacity
does not necessarily require that a person shall actually
be insane or of unsound mind."26

WHEREFORE, the Petition is DENIED, and the

assailed Decision and Resolution of the Court of
Appeals are AFFIRMED. Costs against petitioner.

SO ORDERED.
G.R. No. 74695 September 14, 1993 due to senility and old age; that the will was executed
under duress, or influence of fear and threats; that it
In the Matter of the Probate of the Last Will and was procured by undue and improper pressure and
Testament of the Deceased Brigido Alvarado, influence on the part of the beneficiary who stands to
CESAR ALVARADO, petitioner, get the lion's share of the testator's estate; and lastly,
vs. that the signature of the testator was procured by fraud
HON. RAMON G. GAVIOLA, JR., Presiding Justice, or trick.
HON. MA. ROSARIO QUETULIO LOSA and HON.
LEONOR INES LUCIANO, Associate Justices, When the oppositor (petitioner) failed to substantiate
Intermediate Appellate Court, First Division (Civil the grounds relied upon in the Opposition, a Probate
Cases), and BAYANI MA. RINO, respondents. Order was issued on 27 June 1983 from which an
appeal was made to respondent court. The main thrust
Vicente R. Redor for petitioner. of the appeal was that the deceased was blind within
the meaning of the law at the time his "Huling Habilin"
Bayani Ma. Rino for and in his own behalf. 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.
BELLOSILLO, J.:
On 11 April 1986, the Court of Appeals rendered the
Before us is an appeal from the Decision dated 11 April decision under review with the following findings: that
19861 of the First Civil Cases Division of the then Brigido Alvarado was not blind at the time his last will
Intermediate Appellate Court, now Court of Appeals, and codicil were executed; that assuming his blindness,
which affirmed the Order dated 27 June 19832 of the the reading requirement of Art. 808 was substantially
Regional Trial Court of Sta. Cruz, Laguna, admitting to complied with when both documents were read aloud to
probate the last will and testament3 with codicil4 of the the testator with each of the three instrumental
late Brigido Alvarado. witnesses and the notary public following the reading
with their respective copies of the instruments. The
On 5 November 1977, the 79-year old Brigido Alvarado appellate court then concluded that although Art. 808
executed a notarial will entitled "Huling Habilin" wherein was not followed to the letter, there was substantial
he disinherited an illegitimate son (petitioner) and compliance since its purpose of making known to the
expressly revoked a previously executed holographic testator the contents of the drafted will was served.
will at the time awaiting probate before Branch 4 of the
Regional Trial Court of sta. Cruz, Laguna. The issues now before us can be stated thus: Was
Brigido Alvarado blind for purpose of Art, 808 at the time
As testified to by the three instrumental witnesses, the his "Huling Habilin" and its codicil were executed? If so,
notary public and by private respondent who were was the double-reading requirement of said article
present at the execution, the testator did not read the complied with?
final draft of the will himself. Instead, private
respondent, as the lawyer who drafted the eight-paged Regarding the first issue, there is no dispute on the
document, read the same aloud in the presence of the following facts: Brigido Alvarado was not totally blind at
testator, the three instrumental witnesses and the the time the will and codicil were executed. However,
notary public. The latter four followed the reading with his vision on both eyes was only of "counting fingers at
their own respective copies previously furnished them. three (3) feet" by reason of the glaucoma which he had
been suffering from for several years and even prior to
Meanwhile, Brigido's holographic will was subsequently his first consultation with an eye specialist on
admitted to probate on 9 December 1977. On the 29th 14 December 1977.
day of the same month, a codicil entitled "Kasulatan ng
Pagbabago sa Ilang Pagpapasiya na Nasasaad sa The point of dispute is whether the foregoing
Huling Habilin na may Petsa Nobiembre 5, 1977 ni circumstances would qualify Brigido as a "blind" testator
Brigido Alvarado" was executed changing some under Art. 808 which reads:
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 Art. 808. If the testator is blind, the will
clauses were unchanged. As in the case of the notarial shall be read to him twice; once, by one
will, the testator did not personally read the final draft of of the subscribing witnesses, and again,
the codicil. Instead, it was private respondent who read by the notary public before whom the
it aloud in his presence and in the presence of the three will is acknowledged.
instrumental witnesses (same as those of the notarial
will) and the notary public who followed the reading Petitioner contends that although his father was not
using their own copies. totally blind when the will and codicil were executed, he
can be so considered within the scope of the term as it
A petition for the probate of the notarial will and codicil is used in Art. 808. To support his stand, petitioner
was filed upon the testator's death on 3 January 1979 presented before the trial court a medical certificate
by private respondent as executor with the Court of First issued by Dr. Salvador R. Salceda, Director of the
Instance, now Regional Trial Court, of Siniloan, Institute of Opthalmology (Philippine Eye Research
Laguna.5 Petitioner, in turn, filed an Opposition on the Institute),6 the contents of which were interpreted in
following grounds: that the will sought to be probated layman's terms by Dr. Ruperto Roasa, whose expertise
was not executed and attested as required by law; that was admitted by private respondent.7 Dr. Roasa
the testator was insane or otherwise mentally explained that although the testator could visualize
incapacitated to make a will at the time of its execution fingers at three (3) feet, he could no longer read either
printed or handwritten matters as of 14 December 1977, neither the notary public nor an instrumental witness
the day of his first consultation.8 read the contents of the will and codicil to Brigido,
probate of the latter's will and codicil should have been
On the other hand, the Court of Appeals, contrary to the disallowed.
medical testimony, held that the testator could still read
on the day the will and the codicil were executed but We sustain private respondent's stand and necessarily,
chose not to do so because of "poor eyesight."9 Since the petition must be denied.
the testator was still capable of reading at that time, the
court a quo concluded that Art. 808 need not be This Court has held in a number of occasions that
complied with. substantial compliance is acceptable where the
purpose of the law has been satisfied, the reason being
We agree with petitioner in this respect. that the solemnities surrounding the execution of wills
are intended to protect the testator from all kinds of
Regardless of respondent's staunch contention that the fraud and trickery but are never intended to be so rigid
testator was still capable of reading at the time his will and inflexible as to destroy the testamentary privilege. 14
and codicil were prepared, the fact remains and this
was testified to by his witnesses, that Brigido did not do In the case at bar, private respondent read the testator's
so because of his "poor," 10 "defective," 11 or will and codicil aloud in the presence of the testator, his
"blurred" vision making it necessary for private
12
three instrumental witnesses, and the notary public.
respondent to do the actual reading for him. Prior and subsequent thereto, the testator affirmed,
upon being asked, that the contents read corresponded
The following pronouncement in Garcia with his instructions. Only then did the signing and
vs. Vasquez 13 provides an insight into the scope of the acknowledgement take place. There is no evidence,
term "blindness" as used in Art. 808, to wit: and petitioner does not so allege, that the contents of
the will and codicil were not sufficiently made known
The rationale behind the requirement of and communicated to the testator. On the contrary, with
reading the will to the testator if he respect to the "Huling Habilin," the day of the execution
is blind or incapable of reading the will was not the first time that Brigido had affirmed the truth
himself (as when he is illiterate), is to and authenticity of the contents of the draft. The
make the provisions thereof known to uncontradicted testimony of Atty. Rino is that Brigido
him, so that he may be able to object if Alvarado already acknowledged that the will was
they are not in accordance with his drafted in accordance with his expressed wishes even
wishes . . . 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
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)." Moreover, it was not only Atty. Rino who read the
Since Brigido Alvarado was incapable of reading the documents on
final drafts of his will and codicil on the separate 5 November and 29 December 1977. The notary public
occasions of their execution due to his "poor," and the three instrumental witnesses likewise read the
"defective," or "blurred" vision, there can be no other will and codicil, albeit silently. Afterwards, Atty. Nonia
course for us but to conclude that Brigido Alvarado de la Pena (the notary public) and Dr. Crescente O.
comes within the scope of the term "blind" as it is used Evidente (one of the three instrumental witnesses and
in Art. 808. Unless the contents were read to him, he the testator's physician) asked the testator whether the
had no way of ascertaining whether or not the lawyer contents of the document were of his own free will.
who drafted the will and codicil did so confortably with Brigido answered in the affirmative. 16 With four persons
his instructions. Hence, to consider his will as validly following the reading word for word with their own
executed and entitled to probate, it is essential that we copies, it can be safely concluded that the testator was
ascertain whether Art. 808 had been complied with. 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
Article 808 requires that in case of testators like Brigido
typewritten documents. This is especially true when we
Alvarado, the will shall be read twice; once, by one of
consider the fact that the three instrumental witnesses
the instrumental witnesses and, again, by the notary
were persons known to the testator, one being his
public before whom the will was acknowledged. The
physician (Dr. Evidente) and another (Potenciano C.
purpose is to make known to the incapacitated testator
Ranieses) being known to him since childhood.
the contents of the document before signing and to give
him an opportunity to object if anything is contrary to his
instructions. 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
That Art. 808 was not followed strictly is beyond cavil.
insure the authenticity of the will, the formal
Instead of the notary public and an instrumental
imperfections should be brushed aside when they do
witness, it was the lawyer (private respondent) who
not affect its purpose and which, when taken into
drafted the eight-paged will and the five-paged codicil
account, may only defeat the testator's will. 17
who read the same aloud to the testator, and read them
only once, not twice as Art. 808 requires.
As a final word to convince petitioner of the propriety of
the trial court's Probate Order and its affirmance by the
Private respondent however insists that there was
Court of Appeals, we quote the following
substantial compliance and that the single reading
pronouncement in Abangan v. Abangan, 18 to wit:
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 The object of the solemnities
surrounding the execution of wills is to
 close the door against bad 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.
 ARTICLES 810-819 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
G.R. No. L-38338 January 28, 1985 executed through force, intimidation and/or under
duress, undue influence and improper pressure, and (c)
IN THE MATTER OF THE INTESTATE ESTATE OF the alleged testatrix acted by mistake and/or did not
ANDRES G. DE JESUS AND BIBIANA ROXAS DE intend, nor could have intended the said Will to be her
JESUS, SIMEON R. ROXAS & PEDRO ROXAS DE last Will and testament at the time of its execution.
JESUS, petitioners,
vs. On August 24, 1973, respondent Judge Jose C.
ANDRES R. DE JESUS, JR., respondent. Colayco issued an order allowing the probate of the
holographic Will which he found to have been duly
Raul S. Sison Law Office for petitioners. executed in accordance with law.

Rafael Dinglasan, Jr. for heir M. Roxas. Respondent Luz Roxas de Jesus filed a motion for
reconsideration alleging inter alia that the alleged
Ledesma, Guytingco Velasco and Associates for holographic Will of the deceased Bibiana R. de Jesus
Ledesa and A. 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.
GUTIERREZ, JR., J.:
On December 10, 1973, respondent Judge Colayco
reconsidered his earlier order and disallowed the
This is a petition for certiorari to set aside the order of
probate of the holographic Will on the ground that the
respondent Hon. Jose C. Colayco, Presiding Judge
word "dated" has generally been held to include the
Court of First Instance of Manila, Branch XXI
disallowing the probate of the holographic Will of the month, day, and year. The dispositive portion of the
deceased Bibiana Roxas de Jesus. order reads:

The antecedent facts which led to the filing of this WHEREFORE, the document
purporting to be the holographic Will of
petition are undisputed.
Bibiana Roxas de Jesus, is hereby
disallowed for not having been
After the death of spouses Andres G. de Jesus and executed as required by the law. The
Bibiana Roxas de Jesus, Special Proceeding No. order of August 24, 1973 is hereby set
81503 entitled "In the Matter of the Intestate Estate of aside.
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. The only issue is whether or not the date "FEB./61 "
appearing on the holographic Will of the deceased
Bibiana Roxas de Jesus is a valid compliance with the
On March 26, 1973, petitioner Simeon R. Roxas was Article 810 of the Civil Code which reads:
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 ART. 810. A person may execute a
Will of the deceased Bibiana Roxas de Jesus. On May holographic will which must be entirely
26, 1973, respondent Judge Jose Colayco set the written, dated, and signed by the hand
hearing of the probate of the holographic Win on July of the testator himself. It is subject to no
other form, and may be made in or out
21, 1973.
of the Philippines, and need not be
witnessed.
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 The petitioners contend that while Article 685 of the
Spanish Civil Code and Article 688 of the Old Civil Code
on pages 21, 22, 23 and 24 thereof, a letter-win
require the testator to state in his holographic Win the
addressed to her children and entirely written and
signed in the handwriting of the deceased Bibiana R. de "year, month, and day of its execution," the present Civil
Jesus was found. The will is dated "FEB./61 " and Code omitted the phrase Año mes y dia and simply
states: "This is my win which I want to be respected requires that the holographic Will should be dated. The
although it is not written by a lawyer. ... petitioners submit that the liberal construction of the
holographic Will should prevail.
The testimony of Simeon R. Roxas was corroborated
Respondent Luz Henson on the other hand submits that
by the testimonies of Pedro Roxas de Jesus and
the purported holographic Will is void for non-
Manuel Roxas de Jesus who likewise testified that the
letter dated "FEB./61 " is the holographic Will of their compliance with Article 810 of the New Civil Code in
that the date must contain the year, month, and day of
deceased mother, Bibiana R. de Jesus. Both
its execution. The respondent contends that Article 810
recognized the handwriting of their mother and
of the Civil Code was patterned after Section 1277 of
positively Identified her signature. They further testified
the California Code and Section 1588 of the Louisiana
that their deceased mother understood English, the
language in which the holographic Will is written, and Code whose Supreme Courts had consistently ruled
that the required date includes the year, month, and
that the date "FEB./61 " was the date when said Will
day, and that if any of these is wanting, the holographic
was executed by their mother.
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 although the document may suffer from
formalities to be observed in the execution of some imperfection of language, or other
holographic Wills are strictly construed. non-essential defect. ... (Leynez v.
Leynez 68 Phil. 745).
We agree with the petitioner.
If the testator, in executing his Will, attempts to comply
This will not be the first time that this Court departs from with all the requisites, although compliance is not literal,
a strict and literal application of the statutory it is sufficient if the objective or purpose sought to be
requirements regarding the due execution of Wills. We accomplished by such requisite is actually attained by
should not overlook the liberal trend of the Civil Code in the form followed by the testator.
the manner of execution of Wills, the purpose of which,
in case of doubt is to prevent intestacy — The purpose of the solemnities surrounding the
execution of Wills has been expounded by this Court
The underlying and fundamental in Abangan v. Abanga 40 Phil. 476, where we ruled
objectives permeating the provisions of that:
the law on wigs in this Project consists
in the liberalization of the manner of The object of the solemnities
their execution with the end in view of surrounding the execution of wills is to
giving the testator more freedom in close the door against bad faith and
expressing his last wishes, but with fraud, to avoid substitution of wills and
sufficien safeguards and restrictions to testaments and to guaranty their truth
prevent the commission of fraud and the and authenticity. ...
exercise of undue and improper
pressure and influence upon the In particular, a complete date is required to provide
testator. against such contingencies as that of two competing
Wills executed on the same day, or of a testator
This objective is in accord with the becoming insane on the day on which a Will was
modem tendency with respect to the executed (Velasco v. Lopez, 1 Phil. 720). There is no
formalities in the execution of wills. such contingency in this case.
(Report of the Code Commission, p.
103) We have carefully reviewed the records of this case and
found no evidence of bad faith and fraud in its execution
In Justice Capistrano's concurring opinion in Heirs nor was there any substitution of Wins and Testaments.
of Raymundo Castro v. Bustos (27 SCRA 327) he There is no question that the holographic Will of the
emphasized that: deceased Bibiana Roxas de Jesus was entirely written,
dated, and signed by the testatrix herself and in a
xxx xxx xxx language known to her. There is also no question as to
its genuineness and due execution. All the children of
... The law has a tender regard for the the testatrix agree on the genuineness of the
will of the testator expressed in his last holographic Will of their mother and that she had the
will and testament on the ground that testamentary capacity at the time of the execution of
any disposition made by the testator is said Will. The objection interposed by the oppositor-
better than that which the law can make. respondent Luz Henson is that the holographic Will is
For this reason, intestate succession is fatally defective because the date "FEB./61 " appearing
nothing more than a disposition based on the holographic Will is not sufficient compliance with
upon the presumed will of the decedent. Article 810 of the Civil Code. This objection is too
technical to be entertained.
Thus, the prevailing policy is to require satisfaction of
the legal requirements in order to guard against fraud As a general rule, the "date" in a holographic Will should
and bad faith but without undue or unnecessary include the day, month, and year of its execution.
curtailment of testamentary privilege Icasiano v. However, when as in the case at bar, there is no
Icasiano, 11 SCRA 422). If a Will has been executed in appearance of fraud, bad faith, undue influence and
substantial compliance with the formalities of the law, pressure and the authenticity of the Will is established
and the possibility of bad faith and fraud in the exercise and the only issue is whether or not the date "FEB./61"
thereof is obviated, said Win should be admitted to appearing on the holographic Will is a valid compliance
probate (Rey v. Cartagena 56 Phil. 282). Thus, with Article 810 of the Civil Code, probate of the
holographic Will should be allowed under the principle
of substantial compliance.
xxx xxx xxx
WHEREFORE, the instant petition is GRANTED. The
... More than anything else, the facts
order appealed from is REVERSED and SET ASIDE
and circumstances of record are to be
and the order allowing the probate of the holographic
considered in the application of any
Will of the deceased Bibiana Roxas de Jesus is
given rule. If the surrounding
reinstated.
circumstances point to a regular
execution of the wilt and the instrument
appears to have been executed SO ORDERED.
substantially in accordance with the
requirements of the law, the inclination G.R. No. 123486 August 12, 1999
should, in the absence of any
suggestion of bad faith, forgery or fraud, EUGENIA RAMONAL CODOY, and MANUEL
lean towards its admission to probate, RAMONAL, petitioners,
vs. of the deceased, it was procured by undue and
EVANGELINE R. CALUGAY, JOSEPHINE improper pressure and influence on the part of the
SALCEDO, and UEFEMIA PATIGAS, respondents. beneficiaries, or through fraud and trickery. 1âwphi 1.nêt

PARDO, J.: Respondents presented six (6) witnesses and various

documentary evidence. Petitioners instead of
Before us is a petition for review on certiorari of the presenting their evidence, filed a demurrer6 to
decision of the Court of Appeals1 and its resolution evidence, claiming that respondents failed to establish
denying reconsideration, ruling: sufficient factual and legal basis for the probate of the
holographic will of the deceased Matilde Seño Vda. de
Upon the unrebutted testimony of appellant Ramonal.
Evangeline Calugay and witness Matilde
Ramonal Binanay, the authenticity of testators On November 26, 1990, the lower Court issued an
holographic will has been established and the order, the dispositive portion of which reads:
handwriting and signature therein (exhibit S)
are hers, enough to probate said will. Reversal WHEREFORE, in view of the foregoing
of the judgment appealed from and the probate consideration, the Demurrer to Evidence having
of the holographic will in question be called for. being well taken, same is granted, and the
The rule is that after plaintiff has completed petition for probate of the document (Exhibit
presentation of his evidence and the defendant "S") on the purported Holographic Will of the
files a motion for judgment on demurrer to late Matilde Seño Vda. de Ramonal, is denied
evidence on the ground that upon the facts and for insufficiency of evidence and lack of merits.7
the law plaintiff has shown no right to relief, if
the motion is granted and the order to dismissal On December 12, 1990, respondents filed a notice of
is reversed on appeal, the movant loses his appeal,8 and in support of their appeal, the respondents
right to present evidence in his behalf (Sec, 1 once again reiterated the testimony of the following
Rule 35 Revised Rules of Court). Judgment witnesses, namely: (1) Augusto Neri; (2) Generosa
may, therefore, be rendered for appellant in the Senon; (3) Matilde Ramonal Binanay; (4) Teresita
instant case. Vedad; (5) Fiscal Rodolfo Waga; and (6) Evangeline
Calugay.
Wherefore, the order appealed from is
REVERSED and judgment rendered allowing To have a clear understanding of the testimonies of the
the probate of the holographic will of the testator witnesses, we recite an account of their testimonies.
Matilde Seño Vda. de Ramonal.2
Augusto Neri, Clerk of Court, Court of First Instance of
The facts are as follows: Misamis Oriental, where the special proceedings for the
probate of the holographic will of the deceased was
On April 6, 1990, Evangeline Calugay, Josephine filed. He produced and identified the records of the
Salcedo and Eufemia Patigas, devisees and legatees case. The documents presented bear the signature of
of the holographic will of the deceased Matilde Seño the deceased, Matilde Seño Vda. de Ramonal, for the
Vda. de Ramonal, filed with the Regional Trial Court, purpose of laying the basis for comparison of the
Misamis Oriental, Branch 18, a petition3 for probate of handwriting of the testatrix, with the writing treated or
the holographic will of the deceased, who died on admitted as genuine by the party against whom the
January 16, 1990. evidence is offered.

In the petition, respondents claimed that the deceased Generosa Senon, election registrar of Cagayan de Oro,
Matilde Seño Vda. de Ramonal, was of sound and was presented to produced and identify the voter's
disposing mind when she executed the will on August affidavit of the decedent. However, the voters' affidavit
30, 1978, that there was no fraud, undue influence, and was not produced for the same was already destroyed
duress employed in the person of the testator, and will and no longer available.
was written voluntarily.
Matilde Ramonal Binanay, testified that the deceased
The assessed value of the decedent's property, Matilde Seño Vda. de Ramonal was her aunt, and that
including all real and personal property was about after the death of Matilde's husband, the latter lived with
P400,000.00, at the time of her death.4 her in her parent's house for eleven (11) years from
1958 to 1969. During those eleven (11) years of close
On June 28, 1990, Eugenia Ramonal Codoy and association the deceased, she acquired familiarity with
Manuel Ramonal filed an opposition5 to the petition for her signature and handwriting as she used to
probate, alleging that the holographic will was a forgery accompany her (deceased Matilde Seño Vda. de
and that the same is even illegible. This gives an Ramonal) in collecting rentals from her various tenants
impression that a "third hand" of an interested party of commercial buildings, and deceased always issued
other than the "true hand" of Matilde Seño Vda. de receipts. In addition to this, she (witness Matilde
Ramonal executed the holographic will. Binanay) assisted the deceased in posting the records
of the accounts, and carried personal letters of the
Petitioners argued that the repeated dates incorporated deceased to her creditors.
or appearing on will after every disposition is out of the
ordinary. If the deceased was the one who executed the Matilde Ramonal Binanay further testified that at the
will, and was not forced, the dates and the signature time of the death of Matilde Vda. de Ramonal, she left
should appear at the bottom after the dispositions, as a holographic will dated August 30, 1978, which was
regularly done and not after every disposition. And personally and entirely written, dated and signed, by the
assuming that the holographic will is in the handwriting deceased and that all the dispositions therein, the
dates, and the signatures in said will, were that of the 5. Give the 2,500 Square Meters at Sta. Cruz
deceased. Ramonal Village in favor of Evangeline R.
Calugay, Helen must continue with the Sta.
Fiscal Rodolfo Waga testified that before he was Cruz, once I am no longer around.
appointed City Fiscal of Cagayan de Oro, he was a
practicing lawyer, and handled all the pleadings and (Sgd) Matilde Vda de Ramonal
documents signed by the deceased in connection with
the proceedings of her late husband, as a result of August 30, 1978
which he is familiar with the handwriting of the latter. He
testified that the signature appearing in the holographic 6. Bury me where my husband Justo is ever
will was similar to that of the deceased, Matilde Seño buried.
Vda. de Ramonal, but he can not be sure.
(Sgd) Matilde Vda de Ramonal
The fifth witness presented was Mrs. Teresita Vedad,
an employee of the Department of Environment and
August 30, 1978
Natural Resources, Region 10. She testified that she
processed the application of the deceased for pasture
permit and was familiar with the signature of the Gene and Manuel:
deceased, since the signed documents in her presence,
when the latter was applying for pasture permit. Follow my instruction in order that I will rest
peacefully.
Finally, Evangeline Calugay, one of the respondents,
testified that she had lived with the deceased since Mama
birth, and was in fact adopted by the latter. That after a
long period of time she became familiar with the Matilde Vda de Ramonal
signature of the deceased. She testified that the
signature appearing in the holographic will is the true On October 9, 1995, the Court of Appeals, rendered
and genuine signature of Matilde Seño Vda. de decision9 ruling that the appeal was meritorious. Citing
Ramonal. the decision in the case of Azaola vs. Singson, 109 Phil.
102, penned by Mr. Justice J. B. L. Reyes, a recognized
The holographic will which was written in Visayan, is authority in civil law, the Court of Appeals held:
translated in English as follows:
. . . even if the genuineness of the holographic
Instruction will were contested, we are of the opinion that
Article 811 of our present civil code can not be
August 30, 1978 interpreted as to require the compulsory
presentation of three witnesses to identify the
1. My share at Cogon, Raminal Street, for handwriting of the testator, under penalty of
Evangeline Calugay. having the probate denied. Since no witness
may have been present at the execution of the
holographic will, none being required by law
(Sgd) Matilde Vda de Ramonal
(art. 810, new civil code), it becomes obvious
that the existence of witnesses possessing the
August 30, 1978 requisite qualifications is a matter beyond the
control of the proponent. For it is not merely a
2. Josefina Salcedo must be given 1,500 square question of finding and producing any three
meters at Pinikan Street. witnesses; they must be witnesses "who know
the handwriting and signature of the testator"
(Sgd) Matilde Vda de Ramonal and who can declare (truthfully, of course, even
if the law does not express) "that the will and the
August 30, 1978 signature are in the handwriting of the testator."
There may be no available witness acquainted
3. My jewelry's shall be divided among: with the testator's hand; or even if so
familiarized, the witness maybe unwilling to give
a positive opinion. Compliance with the rule of
1. Eufemia Patigas
paragraph 1 of article 811 may thus become an
impossibility. That is evidently the reason why
2. Josefina Salcedo the second paragraph of article 811 prescribes
that —
3. Evangeline Calugay
in the absence of any competent witness
(Sgd) Matilde Vda de Ramonal referred to in the preceding paragraph, and if
the court deems it necessary, expert testimony
August 30, 1978 may be resorted to.

4. I bequeath my one (1) hectare land at As can be see, the law foresees, the possibility
Mandumol, Indahag to Evangeline R. Calugay that no qualified witness ma be found (or what
amounts to the same thing, that no competent
(Sgd) Matilde Vda de Ramonal witness may be willing to testify to the
authenticity of the will), and provides for resort
August 30, 1978 to expert evidence to supply the deficiency.
 It may be true that the rule of this article The petitioners raise the following issues:
(requiring that three witnesses be presented if
the will is contested and only one if no contest (1) Whether or not the ruling of the case
is had) was derived from the rule established for of Azaola vs. Singson, 109 Phil. 102, relied
ordinary testaments (CF Cabang vs. upon by the respondent Court of Appeals, was
Delfianado, 45 PHIL 291; Tolentino v. applicable to the case.
Francisco, 57 PHIL 742). But it can not be
ignored that the requirement can be considered (2) Whether or not the Court of Appeals erred in
mandatory only in case of ordinary testaments, holding that private respondents had been able
precisely because the presence of at least three to present credible evidence to that the date,
witnesses at the execution of ordinary wills is text, and signature on the holographic will
made by law essential to their validity (Art. 805). written entirely in the hand of the testatrix.
Where the will is holographic, no witness need
be present (art. 10), and the rule requiring
(3) Whether or not the Court of Appeals erred in
production of three witnesses must be deemed
not analyzing the signatures in the holographic
merely permissive if absurd results are to be
will of Matilde Seño Vda. de Ramonal.
avoided.
In this petition, the petitioners ask whether the
Again, under Art. 811, the resort to expert
provisions of Article 811 of the Civil Code are
evidence is conditioned by the words "if the
permissive or mandatory. The article provides, as a
court deem it necessary", which reveal that
requirement for the probate of a contested holographic
what the law deems essential is that the court
will, that at least three witnesses explicitly declare that
should be convinced of the will's authenticity.
the signature in the will is the genuine signature of the
Where the prescribed number of witnesses is
testator.
produced and the court is convinced by their
1âw phi1.nêt

testimony that the will is genuine, it may

consider it unnecessary to call for expert We are convinced, based on the language used, that
evidence. On the other hand, if no competent Article 811 of the Civil Code is mandatory. The word
witness is available, or none of those produced "shall" connotes a mandatory order. We have ruled that
is convincing, the court may still, and in fact it "shall" in a statute commonly denotes an imperative
should resort to handwriting experts. The duty obligation and is inconsistent with the idea of discretion
of the court, in fine, is to exhaust all available and that the presumption is that the word "shall," when
lines of inquiry, for the state is as much used in a statute is mandatory.11
interested as the proponent that the true
intention of the testator be carried into effect. Laws are enacted to achieve a goal intended and to
guide against an evil or mischief that aims to prevent. In
Paraphrasing Azaola vs. Singson, even if the the case at bar, the goal to achieve is to give effect to
genuineness of the holographic will were the wishes of the deceased and the evil to be prevented
contested, Article 811 of the civil code cannot is the possibility that unscrupulous individuals who for
be interpreted as to require the compulsory their benefit will employ means to defeat the wishes of
presentation of three witnesses to identify the the testator.
handwriting of the testator, under penalty of the
having the probate denied. No witness need be So, we believe that the paramount consideration in the
present in the execution of the holographic will. present petition is to determine the true intent of the
And the rule requiring the production of three deceased. An exhaustive and objective consideration of
witnesses is merely permissive. What the law the evidence is imperative to establish the true intent of
deems essential is that the court is convinced of the testator.
the authenticity of the will. Its duty is to exhaust
all available lines of inquiry, for the state is as It will be noted that not all the witnesses presented by
much interested in the proponent that the true the respondents testified explicitly that they were
intention of the testator be carried into effect. familiar with the handwriting of testator. In the case of
And because the law leaves it to the trial court Augusto Neri, clerk of court, Court of First Instance,
to decide if experts are still needed, no Misamis Oriental, he merely identified the record of
unfavorable inference can be drawn from a Special Proceedings No. 427 before said court. He was
party's failure to offer expert evidence, until and not presented to declare explicitly that the signature
unless the court expresses dissatisfaction with appearing in the holographic was that of the deceased.
the testimony of the lay witnesses.10
Generosa E. Senon, the election registrar of Cagayan
According to the Court of Appeals, Evangeline Calugay, de Oro City, was presented to identify the signature of
Matilde Ramonal Binanay and other witnesses the deceased in the voter's affidavit, which was not
definitely and in no uncertain terms testified that the even produced as it was no longer available.
handwriting and signature in the holographic will were
those of the testator herself. Matilde Ramonal Binanay, on the other hand, testified
that:
Thus, upon the unrebutted testimony of appellant
Evangeline Calugay and witness Matilde Ramonal Q. And you said for eleven (11) years Matilde
Binanay, the Court of Appeals sustained the Vda de Ramonal resided with your parents at
authenticity of the holographic will and the handwriting Pinikitan, Cagayan de Oro City. Would you tell
and signature therein, and allowed the will to probate. the court what was your occupation or how did
Matilde Vda de Ramonal keep herself busy that
Hence, this petition. time?
A. Collecting rentals. A. Matilde.

Q. From where? Q. To whom?

A. From the land rentals and commercial A. To her creditors.15

buildings at Pabayo-Gomez streets.12
xxx xxx xxx
xxx xxx xxx
Q. You testified that at time of her death she
Q. Who sometime accompany her? left a will. I am showing to you a document with
its title "tugon" is this the document you are
A. I sometimes accompany her. referring to?

Q. In collecting rentals does she issue A. Yes, sir.

receipts?
Q. Showing to you this exhibit "S", there is that
A. Yes, sir.13 handwritten "tugon", whose handwriting is this?

xxx xxx xxx A. My Aunt.

Q. Showing to you the receipt dated 23 Q. Why do you say this is the handwriting of
October 1979, is this the one you are referring your aunt?
to as one of the receipts which she issued to
them? A. Because I am familiar with her signature.16

A. Yes, sir. What Ms. Binanay saw were pre-prepared receipts and
letters of the deceased, which she either mailed or gave
Q. Now there is that signature of Matilde vda. to her tenants. She did not declare that she saw the
De Ramonal, whose signature is that Mrs. deceased sign a document or write a note.
Binanay?
Further, during the cross-examination, the counsel for
A. Matilde vda. De Ramonal. petitioners elicited the fact that the will was not found in
the personal belongings of the deceased but was in the
Q. Why do you say that is the signature of possession of Ms. Binanay. She testified that:
Matilde Vda. De Ramonal?
Q. Mrs. Binanay, when you were asked by
A. I am familiar with her signature. counsel for the petitioners if the late Matilde
Seno vda de Ramonal left a will you said, yes?
Q. Now, you tell the court Mrs. Binanay,
whether you know Matilde vda de Ramonal kept A. Yes, sir.
records of the accounts of her tenants?
Q. Who was in possession of that will?
A. Yes, sir.
A. I.
Q. Why do you say so?
Q. Since when did you have the possession of
A. Because we sometimes post a record of the will?
accounts in behalf of Matilde Vda. De Ramonal.
A. It was in my mother's possession.
Q. How is this record of accounts made? How
is this reflected? Q. So, it was not in your possession?

A. In handwritten.14 A. Sorry, yes.

xxx xxx xxx Q. And when did you come into possession
since as you said this was originally in the
Q. In addition to collection of rentals, posting possession of your mother?
records of accounts of tenants and deed of sale
which you said what else did you do to acquire A. 1985.17
familiarity of the signature of Matilde Vda De
Ramonal? xxx xxx xxx

A. Posting records. Q. Now, Mrs. Binanay was there any particular

reason why your mother left that will to you and
Q. Aside from that? therefore you have that in your possession?

A. Carrying letters. A. It was not given to me by my mother, I took

that in the aparador when she died.
Q. Letters of whom?
 Q. After taking that document you kept it with A. Yes, sir the handwriting shows that she was
you? very exhausted.

A. I presented it to the fiscal. Q. You just say that she was very exhausted
while that in 1978 she was healthy was not
Q. For what purpose? sickly and she was agile. Now, you said she
was exhausted?
A. Just to seek advice.
A. In writing.
Q. Advice of what?
Q. How did you know that she was exhausted
A. About the will. 18 when you were not present and you just tried to
explain yourself out because of the apparent
inconsistencies?
In her testimony it was also evident that Ms. Binanay
kept the fact about the will from petitioners, the legally
adopted children of the deceased. Such actions put in A. That was I think. (sic).
issue her motive of keeping the will a secret to
petitioners and revealing it only after the death of Q. Now, you already observed this signature
Matilde Seño Vda. de Ramonal. dated 1978, the same year as the alleged
holographic will. In exhibit I, you will notice that
In the testimony of Ms. Binanay, the following were there is no retracing; there is no hesitancy and
established: the signature was written on a fluid movement.
. . . And in fact, the name Eufemia R. Patigas
here refers to one of the petitioners?
Q. Now, in 1978 Matilde Seno Vda de
Ramonal was not yet a sickly person is that
correct? A. Yes, sir.

A. Yes, sir. Q. You will also notice Mrs. Binanay that it is

not only with the questioned signature
appearing in the alleged holographic will
Q. She was up and about and was still
marked as Exhibit X but in the handwriting
uprightly and she could walk agilely and she
themselves, here you will notice the hesitancy
could go to her building to collect rentals, is that
and tremors, do you notice that?
correct?
A. Yes, sir.21
A. Yes, sir.19
Evangeline Calugay declared that the holographic will
xxx xxx xxx
was written, dated and signed in the handwriting of the
testator. She testified that:
Q. Now, let us go to the third signature of
Matilde Ramonal. Do you know that there are
Q. You testified that you stayed with the house
retracings in the word Vda.?
of the spouses Matilde and Justo Ramonal for
the period of 22 years. Could you tell the court
A. Yes, a little. The letter L is continuous. the services if any which you rendered to
Matilde Ramonal?
Q. And also in Matilde the letter L is continued
to letter D? A. During my stay I used to go with her to the
church, to market and then to her transactions.
A. Yes, sir.
Q. What else? What services that you
Q. Again the third signature of Matilde Vda de rendered?
Ramonal the letter L in Matilde is continued
towards letter D. A. After my college days I assisted her in going
to the bank, paying taxes and to her lawyer.
A. Yes, sir.
Q. What was your purpose of going to her
Q. And there is a retracing in the word Vda.? lawyer?

A. Yes, sir.20 A. I used to be her personal driver.

xxx xxx xxx Q. In the course of your stay for 22 years did
you acquire familiarity of the handwriting of
Q. Now, that was 1979, remember one year Matilde Vda de Ramonal?
after the alleged holographic will. Now, you
identified a document marked as Exhibit R. This A. Yes, sir.
is dated January 8, 1978 which is only about
eight months from August 30, 1978. Do you Q. How come that you acquired familiarity?
notice that the signature Matilde Vda de
Ramonal is beautifully written and legible?
A. Because I lived with her since birth.22
 xxx xxx xxx word Matilde vda de Ramonal, whose signature
is this?
Q. Now, I am showing to you Exhibit S which
is captioned "tugon" dated Agosto 30, 1978 A. That is the signature of Matilde Vda de
there is a signature here below item No. 1, will Ramonal.
you tell this court whose signature is this?
Q. Also in exhibit n-3, whose signature is this?
A. Yes, sir, that is her signature.
A. This one here that is the signature of Mrs.
Q. Why do you say that is her signature? Matilde vda de Ramonal.27

A. I am familiar with her signature.23 xxx xxx xxx

So, the only reason that Evangeline can give as to why Q. Aside from attending as counsel in that
she was familiar with the handwriting of the deceased Special Proceeding Case No. 427 what were
was because she lived with her since birth. She never the other assistance wherein you were
declared that she saw the deceased write a note or sign rendering professional service to the deceased
a document. Matilde Vda de Ramonal?

The former lawyer of the deceased, Fiscal Waga, A. I can not remember if I have assisted her in
testified that: other matters but if there are documents to
show that I have assisted then I can recall.28
Q. Do you know Matilde Vda de Ramonal?
xxx xxx xxx
A. Yes, sir I know her because she is my
godmother the husband is my godfather. Q. Now, I am showing to you exhibit S which
Actually I am related to the husband by is titled "tugon", kindly go over this document,
consanguinity. Fiscal Waga and tell the court whether you are
familiar with the handwriting contained in that
Q. Can you tell the name of the husband? document marked as exhibit "S"?

A. The late husband is Justo Ramonal.24 A. I am not familiar with the handwriting.

xxx xxx xxx Q. This one, Matilde Vda de Ramonal, whose

signature is this?
Q. Can you tell this court whether the spouses
Justo Ramonal and Matilde Ramonal have A. I think this signature here it seems to be the
legitimate children? signature of Mrs. Matilde vda de Ramonal.

A. As far as I know they have no legitimate Q. Now, in item No. 2 there is that signature
children.25 here of Matilde Vda de Ramonal, can you tell
the court whose signature is this?
xxx xxx xxx
A. Well, that is similar to that signature
Q. You said after becoming a lawyer you appearing in the project of partition.
practice your profession? Where?
Q. Also in item no. 3 there is that signature
A. Here in Cagayan de Oro City. Matilde Vda de Ramonal, can you tell the court
whose signature is that?
Q. Do you have services rendered with the
deceased Matilde vda de Ramonal? A. As I said, this signature also seems to be
the signature of Matilde vda de Ramonal.
A. I assisted her in terminating the partition, of
properties. Q. Why do you say that?

Q. When you said assisted, you acted as her A. Because there is a similarity in the way it is
counsel? Any sort of counsel as in what case is being written.
that, Fiscal?
Q. How about this signature in item no. 4, can
A. It is about the project partition to terminate you tell the court whose signature is this?
the property, which was under the court
before.26 A. The same is true with the signature in item
no. 4. It seems that they are similar.29
xxx xxx xxx
xxx xxx xxx
Q. Appearing in special proceeding no. 427 is
the amended inventory which is marked as Q. Mr. Prosecutor, I heard you when you said
exhibit N of the estate of Justo Ramonal and that the signature of Matilde Vda de Ramonal
there appears a signature over the type written Appearing in exhibit S seems to be the
signature of Matilde vda de Ramonal?
 A. Yes, it is similar to the project of partition. IN VIEW WHEREOF, the decision appealed from is
SET ASIDE. The records are ordered remanded to the
Q. So you are not definite that this is the court of origin with instructions to allow petitioners to
signature of Matilde vda de Ramonal. You are adduce evidence in support of their opposition to the
merely supposing that it seems to be her probate of the holographic will of the deceased Matilde
signature because it is similar to the signature Seño vda. de Ramonal. 1âwphi 1.nêt

of the project of partition which you have made?

No costs.
A. That is true.30
SO ORDERED.
From the testimonies of these witnesses, the Court of
Appeals allowed the will to probate and disregard the
requirement of three witnesses in case of contested
holographic will, citing the decision in Azaola
vs. Singson,31 ruling that the requirement is merely
directory and not mandatory.

In the case of Ajero vs. Court of Appeals,32 we said 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.

However, we cannot eliminate the possibility of a false

document being adjudged as the will of the testator,
which is why if the holographic will is contested, that law
requires three witnesses to declare that the will was in
the handwriting of the deceased.

The will was found not in the personal belongings of the

deceased but with one of the respondents, who kept it
even before the death of the deceased. In the testimony
of Ms. Binanay, she revealed that the will was in her
possession as early as 1985, or five years before the
death of the deceased.

There was no opportunity for an expert to compare the

signature and the handwriting of the deceased with
other documents signed and executed by her during her
lifetime. The only chance at comparison was during the
cross-examination of Ms. Binanay when the lawyer of
petitioners asked Ms. Binanay to compare the
documents which contained the signature of the
deceased with that of the holographic will and she is not
a handwriting expert. Even the former lawyer of the
deceased expressed doubts as to the authenticity of the
signature in the holographic will.

A visual examination of the holographic will convince us

that the strokes are different when compared with other
documents written by the testator. The signature of the
testator in some of the disposition is not readable. There
were uneven strokes, retracing and erasures on the will.

Comparing the signature in the holographic will dated

August 30, 1978,33 and the signatures in several
documents such as the application letter for pasture
permit dated December 30, 1980,34 and a letter dated
June 16, 1978,35 the strokes are different. In the letters,
there are continuous flows of the strokes, evidencing
that there is no hesitation in writing unlike that of the
holographic will. We, therefore, cannot be certain that
ruling holographic will was in the handwriting by the
deceased.
G.R. No. L-12190 August 30, 1958 The will itself was not presented. Petitioner tried to
establish its contents and due execution by the
TESTATE ESTATE OF FELICIDAD ESGUERRA statements in open court of Felina Esguerra, Primitivo
ALTO-YAP deceased. FAUSTO E. GAN, petitioner- Reyes, Socorro Olarte and Rosario Gan Jimenez,
appellant, whose testimonies may be summarized as follows:
vs.
ILDEFONSO YAP, oppositor-appellee. Sometime in 1950 after her last trip abroad, Felicidad
Esguerra mentioned to her first cousin, Vicente
Benedicto C. Belran, Crispin D. Baizas and Roberto H. Esguerra, her desire to make a will. She confided
Benitez for appellant. however that it would be useless if her husband
Arturo M. Tolentino for appellee. discovered or knew about it. Vicente consulted with
Fausto E. Gan, nephew of Felicidad, who was then
BENGZON, J.: preparing for the bar examinations. The latter replied it
could be done without any witness, provided the
document was entirely in her handwriting, signed and
On November 20, 1951, Felicidad Esguerra Alto Yap
dated by her. Vicente Esguerra lost no time in
died of heart failure in the University of Santo Tomas
transmitting the information, and on the strength of it, in
Hospital, leaving properties in Pulilan, Bulacan, and in
the morning of November 5, 1951, in her residence at
the City of Manila.
Juan Luna Street, Manila, Felicidad wrote, signed and
dated a holographic will substantially of the tenor above
On March 17, 1952, Fausto E. Gan initiated them transcribed, in the presence of her niece, Felina
proceedings in the Manila court of first instance with a Esguerra (daughter of Vicente), who was invited to read
petition for the probate of a holographic will allegedly it. In the afternoon of that day, Felicidad was visited by
executed by the deceased, substantially in these words: a distant relative, Primitivo Reyes, and she allowed him
to read the will in the presence of Felina Esguerra, who
Nobyembre 5, 1951. again read it.

Nine days later, he had other visitors: Socorro Olarte a

Ako, si Felicidad E. Alto-Yap, may asawa, at
cousin, and Rosario Gan Jimenez, a niece. To these
ganap na pag-iisip, ay nagsasalaysay na ang
she showed the will, again in the presence of Felina
aking kayamanan sa bayan ng Pulilan, Bulacan
Esguerra, who read it for the third time.
ay aking ipinamamana sa aking mga kamag-
anakang sumusunod:
When on November 19, 1951, Felicidad was confined
at the U.S.T. Hospital for her last illness, she entrusted
Vicente Esguerra, Sr. 5the
Bahagi
said will, which was contained in a purse, to Felina
............................................. Esguerra. But a few hours later, Ildefonso Yap, her
Fausto E. Gan 2husband,
Bahagi asked Felina for the purse: and being afraid
......................................................... of him by reason of his well-known violent temper, she
Rosario E. Gan 2delivered
Bahagi it to him. Thereafter, in the same day,
......................................................... Ildefonso Yap returned the purse to Felina, only to
demand it the next day shortly before the death of
Filomena Alto 1Felicidad.
Bahagi Again, Felina handed it to him but not before
.......................................................... she had taken the purse to the toilet, opened it and read
Beatriz Alto 1the
Bahagi
will for the last time.2
..............................................................
From the oppositor's proof it appears that Felicidad
At ang aking lahat ng ibang kayamanan sa Esguerra had been suffering from heart disease for
Maynila at iba panglugar ay aking ipinamamana several years before her death; that she had been
sa aking asawang si Idelfonso D. Yap sa treated by prominent physicians, Dr. Agerico Sison, Dr.
kondisyong siya'y magpapagawa ng isang Agustin Liboro and others; that in May 1950 husband
Health Center na nagkakahalaga ng di and wife journeyed to the United States wherein for
kukulangin sa halagang P60,000.00 sa bayan several weeks she was treated for the disease; that
ng Pulilan, Bulacan, na nakaukit ang aking thereafter she felt well and after visiting interesting
pangalang Felicidad Esguerra-Alto. At kung ito places, the couple returned to this country in August
ay may kakulangan man ay bahala na ang 1950. However, her ailment recurred, she suffered
aking asawa ang magpuno upang matupad ang several attacks, the most serious of which happened in
aking kagustuhan. the early morning of the first Monday of November 1951
(Nov. 5). The whole household was surprised and
alarmed, even the teachers of the Harvardian Colleges
(Lagda) Felicidad E. Alto-Yap.
occupying the lower floors and of by the Yap spouses.
Physician's help was hurriedly called, and Dr.
Opposing the petition, her surviving husband Ildefonso Tanjuaquio arrived at about 8:00 a.m., found the patient
Yap asserted that the deceased had not left any will, nor hardly breathing, lying in bed, her head held high by her
executed any testament during her lifetime. husband. Injections and oxygen were administered.
Following the doctor's advice the patient stayed in bed,
After hearing the parties and considering their and did nothing the whole day, her husband and her
evidence, the Hon. Ramon R. San Jose, personal attendant, Mrs. Bantique, constantly at her
Judge,1 refused to probate the alleged will. A seventy- side. These two persons swore that Mrs. Felicidad
page motion for reconsideration failed. Hence this Esguerra Yap made no will, and could have made no
appeal. will on that day.
The trial judge refused to credit the petitioner's evidence when authenticity of the instrument is duly proved.
for several reasons, the most important of which were (Rodriguez vs Yap, 40 Off. Gaz. 1st Supp. No. 3 p. 194.)
these: (a) if according to his evidence, the decedent
wanted to keep her will a secret, so that her husband Authenticity and due execution is the dominant
would not know it, it is strange she executed it in the requirements to be fulfilled when such will is submitted
presence of Felina Esguerra, knowing as she did that to the courts for allowance. For that purpose the
witnesses were unnecessary; (b) in the absence of a testimony of one of the subscribing witnesses would be
showing that Felina was a confidant of the decedent it sufficient if there is no opposition (Sec. 5, Rule 77). If
is hard to believe that the latter would have allowed the there is, the three must testify, if available.
former to see and read the will several times; (c) it is (Cabang vs. Delfinado, 34 Phil., 291;
improbable that the decedent would have permitted Tolentino vs. Francisco, 57 Phil., 742). From the
Primitivo Reyes, Rosario Gan Jimenez and Socorro testimony of such witnesses (and of other additional
Olarte to read her will, when she precisely wanted its witnesses) the court may form its opinion as to the
contents to remain a secret during her lifetime; (d) it is genuineness and authenticity of the testament, and the
also improbable that her purpose being to conceal the circumstances its due execution.
will from her husband she would carry it around, even
to the hospital, in her purse which could for one reason Now, in the matter of holographic wills, no such
or another be opened by her husband; (e) if it is true guaranties of truth and veracity are demanded, since as
that the husband demanded the purse from Felina in stated, they need no witnesses; provided however, that
the U.S.T. Hospital and that the will was there, it is hard they are "entirely written, dated, and signed by the hand
to believe that he returned it without destroying the will, of the testator himself." The law, it is reasonable to
the theory of the petitioner being precisely that the will suppose, regards the document itself as material proof
was executed behind his back for fear he will destroy it. of authenticity, and as its own safeguard, since it could
at any time, be demonstrated to be — or not to be — in
In the face of these improbabilities, the trial judge had the hands of the testator himself. "In the probate of a
to accept the oppositor's evidence that Felicidad did not holographic will" says the New Civil Code, "it shall be
and could not have executed such holographic will. necessary that at least one witness who knows the
handwriting and signature of the testator explicitly
In this appeal, the major portion of appellant's brief declare that the will and the signature are in the
discussed the testimony of the oppositor and of his handwriting of the testator. If the will is contested, at
witnesses in a vigorous effort to discredit them. It least three such witnesses shall be required. In the
appears that the same arguments, or most of them, absence of any such witnesses, (familiar with
were presented in the motion to reconsider; but they decedent's handwriting) and if the court deem it
failed to induce the court a quo to change its mind. The necessary, expert testimony may be resorted to."
oppositor's brief, on the other hand, aptly answers the
criticisms. We deem it unnecessary to go over the same The witnesses so presented do not need to have seen
matters, because in our opinion the case should be the execution of the holographic will. They may be
decided not on the weakness of the opposition but on mistaken in their opinion of the handwriting, or they may
the strength of the evidence of the petitioner, who has deliberately lie in affirming it is in the testator's hand.
the burden of proof. However, the oppositor may present other witnesses
who also know the testator's handwriting, or some
The Spanish Civil Code permitted the execution of expert witnesses, who after comparing the will with
holographic wills along with other forms. The Code of other writings or letters of the deceased, have come to
Civil Procedure (Act 190) approved August 7, 1901, the conclusion that such will has not been written by the
adopted only one form, thereby repealing the other hand of the deceased. (Sec. 50, Rule 123). And the
forms, including holographic wills. court, in view of such contradictory testimony may use
its own visual sense, and decide in the face of the
The New Civil Code effective in 1950 revived document, whether the will submitted to it has indeed
holographic wills in its arts. 810-814. "A person may been written by the testator.
execute a holographic will which must be entirely
written, dated, and signed by the hand of the testator Obviously, when the will itself is not submitted,
himself. It is subject to no other form and may be made these means of opposition, and of assessing the
in or out of the Philippines, and need not be witnessed." evidence are not available. And then the only guaranty
of authenticity3 — the testator's handwriting — has
This is indeed a radical departure from the form and disappeared.
solemnities provided for wills under Act 190, which for
fifty years (from 1901 to 1950) required wills to be Therefore, the question presents itself, may a
subscribed by the testator and three credible witnesses holographic will be probated upon the testimony of
in each and every page; such witnesses to attest to the witnesses who have allegedly seen it and who declare
number of sheets used and to the fact that the testator that it was in the handwriting of the testator? How can
signed in their presence and that they signed in the the oppositor prove that such document was not in the
presence of the testator and of each other. testator's handwriting? His witnesses who know
testator's handwriting have not examined it. His experts
The object of such requirements it has been said, is to can not testify, because there is no way to compare the
close the door against bad faith and fraud, to prevent alleged testament with other documents admittedly, or
substitution of wills, to guarantee their truth and proven to be, in the testator's hand. The oppositor will,
authencity (Abangan vs. Abangan, 40 Phil., 476) and to therefore, be caught between the upper millstone of his
avoid those who have no right to succeed the testator lack of knowledge of the will or the form thereof, and the
would succeed him and be benefited with the probate nether millstone of his inability to prove its falsity. Again
of same. (Mendoza vs. Pilapil, 40 Off. Gaz., 1855). the proponent's witnesses may be honest and truthful;
However, formal imperfections may be brushed aside but they may have been shown a faked document, and
having no interest to check the authenticity thereof have
taken no pains to examine and compare. Or they may We find confirmation of these ideas--about exhibition of
be perjurers boldly testifying, in the knowledge that the document itself--in the decision of the Supreme
none could convict them of perjury, because no one Court of Spain of June 5, 1925,
could prove that they have not "been shown" a which denied protocolization or probate to a document
document which they believed was in the handwriting of containing testamentary dispositions in the handwriting
the deceased. Of course, the competency of such of the deceased, but apparently mutilated, the signature
perjured witnesses to testify as to the handwriting could and some words having been torn from it. Even in the
be tested by exhibiting to them other writings sufficiently face of allegations and testimonial evidence (which was
similar to those written by the deceased; but what controverted), ascribing the mutilation to the opponents
witness or lawyer would not foresee such a move and of the will. The aforesaid tribunal declared that, in
prepare for it? His knowledge of the handwriting accordance with the provision of the Civil Code
established, the witness (or witnesses) could simply (Spanish) the will itself, whole and unmutilated, must be
stick to his statement: he has seen and read a presented; otherwise, it shall produce no effect.
document which he believed was in the deceased's
handwriting. And the court and the oppositor would Considerando que sentado lo anterior, y
practically be at the mercy of such witness (or estableciendose en el parrafo segundo del
witnesses) not only as to the execution, but also as articulo 688 del Codigo civil, que para que sea
to the contents of the will. Does the law permit such a valido el testamento olografo debera estar
situation? escrito todo el y firmado por testador, con
expression del año, mes y dia en que se
The Rules of Court, (Rule 77) approved in 1940 allow otorque, resulta evidente que para la validez y
proof (and probate) of a lost or destroyed will by eficacia de esos testamentos, no basta la
secondary — evidence the testimony of witnesses, in demostracion mas o menos cumplida de que
lieu of the original document. Yet such Rules could not cuando se otorgaron se Ilenaron todos esos
have contemplated holographic wills which could not requisitos, sino que de la expresada redaccion
then be validly made here. (See also Sec. 46, Rule 123; el precepto legal, y por el tiempo en que el
Art. 830-New Civil Code.) verbo se emplea, se desprende la necesidad
de que el documento se encuentre en dichas
Could Rule 77 be extended, by analogy, to holographic condiciones en el momento de ser presentado
wills? a la Autoridad competente, para au adveracion
y protocolizacion; y como consecuencia
Spanish commentators agree that one of the greatest ineludible de ello, forzoso es affirmar que el de
objections to the holographic will is that it may be lost or autos carece de validez y aficacia, por no
stolen4 — an implied admission that such loss or theft estarfirmado por el testador, cualquiera que sea
renders it useless.. la causa de la falta de firma, y sin perjuicio de
las acciones que puedan ejercitar los
perjudicados, bien para pedir indemnizacion
This must be so, because the Civil Code requires it to
por el perjuicio a la persona culpable, si la
be protocoled and presented to the judge, (Art. 689)
hubiere, o su castigo en via criminal si
who shall subscribe it and require its identity to be
procediere, por constituir dicha omision un
established by the three witnesses who depose that
defecto insubsanable . . . .
they have no reasonable doubt that the will was written
by the testator (Art. 691). And if the judge considers that
the identity of the will has been proven he shall order This holding aligns with the ideas on holographic wills
that it be filed (Art. 693). All these, imply presentation of in the Fuero Juzgo, admittedly the basis of the Spanish
the will itself. Art. 692 bears the same implication, to a Civil Code provisions on the matter.6
greater degree. It requires that the surviving spouse and
the legitimate ascendants and descendants be PRECEDENTES LEGALES--Fuero Juzgo, libro
summoned so that they may make "any statement they segundo, titulo V, ley 15--E depues que los
may desire to submit with respect to the authenticity of herederos e sus fijos ovieren esta manda, fasta
the will." As it is universally admitted that the ... annos muestrenla al obispo de la tierra, o al
holographic will is usually done by the testator and by juez fasta VI meses y el obispo o el juez tomen
himself alone, to prevent others from knowing either its otros tales tres escritos, que fuesen fechos por
execution or its contents, the above article 692 could su mano daquel que fizo la manda; e por
not have the idea of simply permitting such relatives to aquellos escriptos, si semjara la letra de la
state whether they know of the will, but whether in the manda, sea confirmada la manda. E depues
face of the document itself they think the testator wrote que todo esto fuere connoscido, el obispo o el
it. Obviously, this they can't do unless the will itself is juez, o otras testimonios confirmen el escripto
presented to the Court and to them. de la manda otra vez, y en esta manera vala la
manda. (Art. 689, Scaevola--Codigo Civil.)
Undoubtedly, the intention of the law is to give the near
relatives the choice of either complying with the will if (According to the Fuero above, the will itself must be
they think it authentic, or to oppose it, if they think it compared with specimens of the testators handwriting.)
spurious.5 Such purpose is frustrated when the
document is not presented for their examination. If it be All of which can only mean: the courts will not distribute
argued that such choice is not essential, because the property of the deceased in accordance with his
anyway the relatives may oppose, the answer is that holographic will, unless they are shown his handwriting
their opposition will be at a distinct disadvantage, and and signature.7
they have the right and privilege to comply with the will,
if genuine, a right which they should not be denied by Parenthetically, it may be added that even the French
withholding inspection thereof from them. Civil Law considers the loss of the holographic will to be
fatal. (Planiol y Ripert, Derecho Civil Frances,
traduccion por Diaz Cruz, 1946, Tomo V, page 555).
Taking all the above circumstances together, we reach Turning now to the evidence presented by the
the conclusion that the execution and the contents of a petitioner, we find ourselves sharing the trial judge's
lost or destroyed holographic will may not be proved by disbelief. In addition to the dubious circumstances
the bare testimony of witnesses who have seen and/or described in the appealed decision, we find it hard to
read such will.8 believe that the deceased should show her will precisely
to relatives who had received nothing from it: Socorro
Under the provisions of Art. 838 of the New Civil Code, Olarte and Primitivo Reyes. These could pester her into
we are empowered to adopt this opinion as a Rule of amending her will to give them a share, or threaten to
Court for the allowance of such holographic wills. We reveal its execution to her husband Ildefonso Yap. And
hesitate, however, to make this Rule decisive of this this leads to another point: if she wanted so much to
controversy, simultaneously with its promulgation. conceal the will from her husband, why did she not
Anyway, decision of the appeal may rest on the entrust it to her beneficiaries? Opportunity to do so was
sufficiency, rather the insufficiency, of the evidence not lacking: for instance, her husband's trip to Davao, a
presented by petitioner Fausto E. Gan. few days after the alleged execution of the will.

At this point, before proceeding further, it might be In fine, even if oral testimony were admissible to
convenient to explain why, unlike holographic wills, establish and probate a lost holographic will, we think
ordinary wills may be proved by testimonial evidence the evidence submitted by herein petitioner is so tainted
when lost or destroyed. The difference lies in the nature with improbabilities and inconsistencies that it fails to
of the wills. In the first, the only guarantee of authenticity measure up to that "clear and distinct" proof required by
is the handwriting itself; in the second, the testimony of Rule 77, sec. 6.11
the subscribing or instrumental witnesses (and of the
notary, now). The loss of the holographic will entails the Wherefore, the rejection of the alleged will must be
loss of the only medium of proof; if the ordinary will is sustained.
lost, the subscribing witnesses are available to
authenticate. Judgment affirmed, with costs against petitioner.

In the case of ordinary wills, it is quite hard to convince

three witnesses (four with the notary) deliberately to lie.
And then their lies could be checked and exposed, their
whereabouts and acts on the particular day, the
likelihood that they would be called by the testator, their
intimacy with the testator, etc. And if they were intimates
or trusted friends of the testator they are not likely to
end themselves to any fraudulent scheme to distort his
wishes. Last but not least, they can not receive anything
on account of the will.

Whereas in the case of holographic wills, if oral

testimony were admissible9 only one man could
engineer the fraud this way: after making a clever or
passable imitation of the handwriting and signature of
the deceased, he may contrive to let three honest and
credible witnesses see and read the forgery; and the
latter, having no interest, could easily fall for it, and in
court they would in all good faith affirm its genuineness
and authenticity. The will having been lost — the forger
may have purposely destroyed it in an "accident" — the
oppositors have no way to expose the trick and the
error, because the document itself is not at hand. And
considering that the holographic will may consist of two
or three pages, and only one of them need be signed,
the substitution of the unsigned pages, which may be
the most important ones, may go undetected.

If testimonial evidence of holographic wills be permitted,

one more objectionable feature — feasibility of forgery
— would be added to the several objections to this kind
of wills listed by Castan, Sanchez Roman and Valverde
and other well-known Spanish Commentators and
teachers of Civil Law.10

One more fundamental difference: in the case of a lost

will, the three subscribing witnesses would be
testifying to a fact which they saw, namely the act of the
testator of subscribing the will; whereas in the case of a
lost holographic will, the witnesses would testify as to
their opinion of the handwriting which they allegedly
saw, an opinion which can not be tested in court, nor
directly contradicted by the oppositors, because the
handwriting itself is not at hand.
G.R. No. L-40207 September 28, 1984 one and the same person.
Consequently, Exhibit "C" was the
ROSA K. KALAW, petitioner, handwriting of the decedent, Natividad
vs. K. Kalaw. The only question is whether
HON. JUDGE BENJAMIN RELOVA, Presiding Judge the win, Exhibit 'C', should be admitted
of the CFI of Batangas, Branch VI, Lipa City, and to probate although the alterations
GREGORIO K. KALAW, respondents. and/or insertions or additions above-
mentioned were not authenticated by
Leandro H. Fernandez for petitioner. the full signature of the testatrix
pursuant to Art. 814 of the Civil Code.
The petitioner contends that the
Antonio Quintos and Jose M. Yacat for respondents.
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
MELENCIO-HERRERA, J.: NBI FOR EXAMINATIONS. This is
untenable. The parties did not agree,
On September 1, 1971, private respondent nor was it impliedly understood, that the
GREGORIO K. KALAW, claiming to be the sole heir of oppositors would be in estoppel.
his deceased sister, Natividad K. Kalaw, filed a petition
before the Court of First Instance of Batangas, Branch The Court finds, therefore, that the
VI, Lipa City, for the probate of her holographic Will provision of Article 814 of the Civil Code
executed on December 24, 1968. is applicable to Exhibit "C". Finding the
insertions, alterations and/or additions
The holographic Will reads in full as follows: in Exhibit "C" not to be authenticated by
the full signature of the testatrix
My Last will and Testament Natividad K. Kalaw, the Court will deny
the admission to probate of Exhibit "C".
In the name of God, Amen.
WHEREFORE, the petition to probate
I Natividad K. Kalaw Filipino 63years of age, single, and Exhibit "C" as the holographic will of
a resident of Lipa City, being of sound and disposing Natividad K. Kalaw is hereby denied.
mind and memory, do hereby declare thus to be my last
will and testament. SO ORDERED.

1. It is my will that I'll be burried in the cemetery of the From that Order, GREGORIO moved for
catholic church of Lipa City. In accordance with the reconsideration arguing that since the alterations and/or
rights of said Church, and that my executrix hereinafter insertions were the testatrix, the denial to probate of her
named provide and erect at the expose of my state a holographic Will would be contrary to her right of
suitable monument to perpetuate my memory. testamentary disposition. Reconsideration was denied
in an Order, dated November 2, 1973, on the ground
xxx xxx xxx that "Article 814 of the Civil Code being , clear and
explicit, (it) requires no necessity for interpretation."
The holographic Will, as first written, named ROSA K.
Kalaw, a sister of the testatrix as her sole heir. Hence, From that Order, dated September 3, 1973, denying
on November 10, 1971, petitioner ROSA K. Kalaw probate, and the Order dated November 2, 1973
opposed probate alleging, in substance, that the denying reconsideration, ROSA filed this Petition for
holographic Will contained alterations, corrections, and Review on certiorari on the sole legal question of
insertions without the proper authentication by the full whether or not the original unaltered text after
signature of the testatrix as required by Article 814 of subsequent alterations and insertions were voided by
the Civil Code reading: the Trial Court for lack of authentication by the full
signature of the testatrix, should be probated or not,
Art. 814. In case of any insertion, with her as sole heir.
cancellation, erasure or alteration in a
holographic will the testator must Ordinarily, when a number of erasures, corrections,
authenticate the same by his full and interlineations made by the testator in a holographic
signature. Will litem not been noted under his signature, ... the Will
is not thereby invalidated as a whole, but at most only
ROSA's position was that the holographic Will, as first as respects the particular words erased, corrected or
written, should be given effect and probated so that she interlined.1 Manresa gave an Identical commentary when he said "la
omision de la salvedad no anula el testamento, segun la regla de
could be the sole heir thereunder. jurisprudencia establecida en la sentencia de 4 de Abril de 1895." 2

After trial, respondent Judge denied probate in an However, when as in this case, the holographic Will in
Order, dated September 3, 197 3, reading in part: dispute had only one substantial provision, which was
altered by substituting the original heir with another, but
The document Exhibit "C" was which alteration did not carry the requisite of full
submitted to the National Bureau of authentication by the full signature of the testator, the
Investigation for examination. The NBI effect must be that the entire Will is voided or revoked
reported that the handwriting, the for the simple reason that nothing remains in the Will
signature, the insertions and/or after that which could remain valid. To state that the Will
additions and the initial were made by as first written should be given efficacy is to disregard
the seeming change of mind of the testatrix. But that WHEREFORE, this Petition is hereby dismissed and
change of mind can neither be given effect because she the Decision of respondent Judge, dated September 3,
failed to authenticate it in the manner required by law 1973, is hereby affirmed in toto. No costs.
by affixing her full signature,
SO ORDERED.
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 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).
G.R. No. L-20234 December 23, 1964 1954 Spec. Proc. No. 1016-R, In the matter of
the Probate of the Will of Gervasia Rebaca).
PAULA DE LA CERNA, ET AL., petitioners,
vs. The Court of First Instance ordered the petition heard
MANUELA REBACA POTOT, ET AL., and THE and declared the testament null and void, for being
HONORABLE COURT OF APPEALS, respondents. executed contrary to the prohibition of joint wills in the
Civil Code (Art. 669, Civil Code of 1889 and Art. 818,
Philip M. Alo and Crispin M. Menchavez for petitioners. Civil Code of the Philippines); but on appeal by the
Nicolas Jumapao for respondents. testamentary heir, the Court of Appeals reversed, on
the ground that the decree of probate in 1939 was
REYES, J.B.L., J.: issued by a court of probate jurisdiction and conclusive
on the due execution of the testament. Further, the
Court of Appeals declared that:
Appeal by Paula de la Cerna and others from a decision
of the Court of Appeals, Sixth Division (C.A.-G.R. No.
23763-R) reversing that of the Court of First Instance of ... . It is true the law (Art. 669, old Civil Code;
Cebu (Civ. Case No. R-3819) and ordering the Art. 818, new Civil Code). prohibits the making
dismissal of an action for partition. of a will jointly by two or more persons either for
their reciprocal benefit or for the benefit of a
third person. However, this form of will has long
The factual background appears in the following portion
been sanctioned by use, and the same has
of the decision of the Court of Appeals (Petition, Annex
continued to be used; and when, as in the
A, pp. 2-4):
present case, one such joint last will and
testament has been admitted to probate by final
It appears that on May 9, 1939, the spouses, order of a Court of competent jurisdiction, there
Bernabe de la Serna and Gervasia Rebaca, seems to be no alternative except to give effect
executed a joint last will and testament in the to the provisions thereof that are not contrary to
local dialect whereby they willed that "our two law, as was done in the case of Macrohon vs.
parcels of land acquired during our marriage Saavedra, 51 Phil. 267, wherein our Supreme
together with all improvements thereon shall be Court gave effect to the provisions of the joint
given to Manuela Rebaca, our niece, whom we will therein mentioned, saying, "assuming that
have nurtured since childhood, because God the joint will in question is valid."
did not give us any child in our union, Manuela
Rebaca being married to Nicolas Potot", and
Whence this appeal by the heirs intestate of the
that "while each of the testators is yet living, he
deceased husband, Bernabe de la Cerna.
or she will continue to enjoy the fruits of the two
lands aforementioned", the said two parcels of
land being covered by Tax No. 4676 and Tax The appealed decision correctly held that the final
No. 6677, both situated in sitio Bucao, barrio decree of probate, entered in 1939 by the Court of First
Lugo, municipality of Borbon, province of Cebu. Instance of Cebu (when the testator, Bernabe de la
Bernabe dela Serna died on August 30, 1939, Cerna, died), has conclusive effect as to his last will and
and the aforesaid will was submitted to probate testament despite the fact that even then the Civil Code
by said Gervasia and Manuela before the Court already decreed the invalidity of joint wills, whether in
of First Instance of Cebu which, after due favor of the joint testators, reciprocally, or in favor of a
publication as required by law and there being third party (Art. 669, old Civil Code). The error thus
no opposition, heard the evidence, and, by committed by the probate court was an error of law, that
Order of October 31, 1939; in Special should have been corrected by appeal, but which did
Proceedings No. 499, "declara legalizado el not affect the jurisdiction of the probate court, nor the
documento Exhibit A como el testamento y conclusive effect of its final decision, however
ultima voluntad del finado Bernabe de la Serna erroneous. A final judgment rendered on a petition for
con derecho por parte du su viuda superstite the probate of a will is binding upon the whole world
Gervasia Rebaca y otra testadora al propio (Manalo vs. Paredes, 47 Phil. 938; In re Estates of
tiempo segun el Exhibit A de gozar de los frutos Johnson, 39 Phil. 156); and public policy and sound
de los terranos descritos en dicho documents; practice demand that at the risk of occasional errors
y habido consideracion de la cuantia de dichos judgment of courts should become final at some definite
bienes, se decreta la distribucion sumaria de los date fixed by law. Interest rei publicae ut finis set
mismos en favor de la logataria universal litium (Dy Cay vs. Crossfield, 38 Phil, 521, and other
Manuela Rebaca de Potot previa prestacion por cases cited in 2 Moran, Comments on the Rules of
parte de la misma de una fianza en la sum de Court (1963 Ed., p. 322).
P500.00 para responder de cualesquiera
reclamaciones que se presentare contra los Petitioners, as heirs and successors of the late Bernabe
bienes del finado Bernabe de la Serna de los de la Cerna, are concluded by the 1939 decree
años desde esta fecha" (Act Esp. 499, admitting his will to probate. The contention that being
Testamentaria Finado Bernabe de la Serna) void the will cannot be validated, overlooks that the
Upon the death of Gervasia Rebaca on October ultimate decision on Whether an act is valid or void rests
14, 1952, another petition for the probate of the with the courts, and here they have spoken with finality
same will insofar as Gervasia was concerned when the will was probated in 1939. On this court, the
was filed on November 6, 1952, being Special dismissal of their action for partition was correct.
Proceedings No. 1016-R of the same Court of
First Instance of Cebu, but for failure of the But the Court of Appeals should have taken into
petitioner, Manuela R. Potot and her attorney, account also, to avoid future misunderstanding, that the
Manuel Potot to appear, for the hearing of said probate decree in 1989 could only affect the share of
petition, the case was dismissed on March 30, the deceased husband, Bernabe de la Cerna. It could
not include the disposition of the share of the wife,
Gervasia Rebaca, who was then still alive, and over
whose interest in the conjugal properties the probate
court acquired no jurisdiction, precisely because her
estate could not then be in issue. Be it remembered that
prior to the new Civil Code, a will could not be probated
during the testator's lifetime.

It follows that the validity of the joint will, in so far as the

estate of the wife was concerned, must be, on her
death, reexamined and adjudicated de novo, since a
joint will is considered a separate will of each testator.
Thus regarded, the holding of the court of First Instance
of Cebu that the joint will is one prohibited by law was
correct as to the participation of the deceased Gervasia
Rebaca in the properties in question, for the reasons
extensively discussed in our decision in Bilbao vs.
Bilbao, 87 Phil. 144, that explained the previous holding
in Macrohon vs. Saavedra, 51 Phil. 267.

Therefore, the undivided interest of Gervasia Rebaca

should pass upon her death to her heirs intestate, and
not exclusively to the testamentary heir, unless some
other valid will in her favor is shown to exist, or unless
she be the only heir intestate of said Gervasia.

It is unnecessary to emphasize that the fact that joint

wills should be in common usage could not make them
valid when our Civil Codes consistently invalidated
them, because laws are only repealed by other
subsequent laws, and no usage to the contrary may
prevail against their observance (Art. 5, Civ. Code of
1889; Art. 7, Civil Code of the Philippines of 1950).

WITH THE FOREGOING MODIFICATION, the

judgment of the Court of Appeals in CA-G.R. No.
23763-R is affirmed. No Costs.
 ARTICLES 820-824 and Pilar executrices without bond. Failing to obtain a
reconsideration of this decision, the Oppositors appealed
to the Court of Appeals about the beginning of the year
[G.R. No. L-8774. November 26, 1956.] 1951.
In the matter of the testate estate of the deceased Ordinarily, because of the value of the property involved
JUANA JUAN VDA. DE MOLO. EMILIANA MOLO- in the will, which was many times more than P50,000, the
PECKSON and PILAR PEREZ-NABLE, Petitioners- appeal should have been brought directly to this Tribunal.
Appellees, vs. ENRIQUE TANCHUCO, FAUSTINO GOMEZ, However, shortly, after the execution of the instrument
ET AL., Oppositors-Appellants. admitted to probate as a will, the testatrix executed a
document purporting to be a deed of donation inter
vivos, donating the great bulk of her entire property, with
DECISION the exception of about P16,000 worth, to the same
MONTEMAYOR, J.: beneficiaries in the will, namely, Emiliana and Pilar. If this
deed of donation is valid, then the will disposes of
Mariano Molo and Juana Juan was a couple possessed of
property valued only at about P16,000; hence, the chan roblesvirtualawlibrary

much worldly wealth, but unfortunately, not blessed with

appeal to the Court of Appeals instead of the Supreme
children. To fill the void in their marital life, they took into
Court. In justice to the Oppositors, it should be stated
their home and custody two baby girls, raising them from
that, at the same time that they opposed the probate of
infancy, treating them as their own daughters, sending
the will in the probate court, they also expressed their
them to school, and later to the best and exclusive
intention to contest the validity of the allege donation
centers of higher learning, until they both graduated, one
inter vivos, either in the administration proceedings or in
in pharmacy, and the other in law. These two fortunate a proper separate case. The appeal, for one reason or
girls, now grown up women and married, are Emiliana
another, remained in the Court of Appeals for sometime,
Perez-Molo-Peckson, a niece of Juana, and Pilar Perez-
and only by its resolution of July 7, 1954, was the case
Nable a half sister of Emiliana.
certified to us on the ground that, inasmuch as the validity
Mariano Molo died in January, 1941, and by will of the supposed donation inter vivos was being impugned
bequeathed all his estate to his wife. Juana, his widow, and repudiated by the Oppositors of the will, and
died on May 28, 1950, leaving no forced heirs but only inasmuch as the will itself covered property valued well in
collateral, — children and grandchildren of her sisters. excess of P50,000, the appeal should be determined by
She left considerable property worth around a million the Supreme Court.
pesos or more, and to dispose of the same, she was We have carefully gone over the evidence of the record,
supposed to have executed on May 11, 1948, about two and we are convinced that the great preponderance
years before her death, a document purporting to be her
thereof is in favor of the probate of the will. Not only this,
last will and testament, wherein she bequeathed the bulk
but we realize that the credibility of witnesses is very
of her property to her two foster children, Emiliana and
much involved in the determination of this case, the
Pilar. These two foster daughters, as Petitioners,
testimony of those for the Petitioners being diametrically
presented the document for probate in the Court of First
opposed to and utterly conflicting with that of the
Instance of Rizal. The other relatives, such as Enrique
witnesses for the Oppositors. His Honor, the trial judge
Tanchuco, only son of Juana’s deceased sister Modesta,
had the opportunity and was in a position to gauge said
and his two children, Ester, and Gloria, both surnamed
credibility and he evidently found the witnesses for
Tanchuco, and Faustino Gomez and Fortunata Gomez, the Petitioners more entitled to credence, and their
the only surviving grandchildren of another deceased testimony more reasonable. We find no reason for
sister, named Francisca, filed opposition to the probate of
disturbing said finding of the probate court. We quote
the will on the ground that the instrument in question
with approval a portion of the decision of Judge Tan,
was not the last will and testament of Juana; that the
reading as follows:
chan roblesvirtualawlibrary

chanroblesvirtuallawlibrary

same was not executed and attested in accordance with

law; that the said supposed will was secured through
chan roblesvirtualawlibrary
“From the evidence presented in this case, both oral and
undue pressure and influence on the part of the documentary, it was proved to the full satisfaction of this
beneficiaries therein; that the signature of the testatrix
chan roblesvirtualawlibrary
Court that the deceased freely and voluntarily executed
was secured by fraud and that she did not intend the Exhibit “A”, her last will and testament, in the presence of
instrument to be her last will; and that at the time the chan roble svirtualawlibrary
her three attesting witnesses that at the time of the
instrument was executed, the testatrix Juana was not of execution of the said will, the deceased was of sound
sound and disposing mind. mind and in good health and was fully conscious of all her
acts as may be seen in Exhibits “D”, “D-1”, “D-2”, “D-3”,
Because of the value of the property involved, as well as
and “D-4”, and also as was proven by the testimony of the
the fact that the bulk of said property was being left to
two attesting witnesses, Petrona P. Navarro and Dr.
Emiliana and Pilar, ignoring and practically disinheriting
Cleofas Canicosa; that said will was signed in the
chan roblesvirtualawlibrary

the other relatives whose blood ties with the testatrix

presence of the three attesting witnesses, who, likewise,
were just as close, if not closer, the will, marked Exhibit A
signed in the presence of the testatrix and in the presence
at the hearing, was hotly contested and considerable
of each other; that after the execution of said will or
chan roblesvirtualawlibrary

evidence, oral and documentary, was introduced by both

after the signing of the same, the deceased Juana Juan
parties. After hearing, Judge Bienvenido A. Tan, presiding Vda. de Molo took it with her and kept it in her possession
over the trial court, in a well considered decision declared
and after her death, the said will was presented in court
the document Exhibit A to be the last will and testament
for probate.
of Juana Juan, and admitted the same for probate; and chan roblesvirtualawlibrary

following the provisions of the will, he appointed Emiliana

“While the written opposition to the probate of said will “‘Any person who has no forced heirs may dispose by will
consists of a litany of supposed abuses, force and undue of all his property or any part of it in favor of any person
influence exercised on the testatrix, yet the evidence qualified to acquire it.’
shows that these supposed abuses, force and undue
“Even ignoring the precedents of this legal precept, the
influence consist only of failure on the part of the
Code embodying it has been in force in the Philippines for
deceased to invite the Oppositors in all the parties held in
more than a quarter of a century, and for this reason it is
her house through the alleged influence of Mrs. Nable, of
not tenable to say that the exercise of the liberty thereby
paying more attention, care, and extending more
granted is necessarily exceptional, where it is not shown
kindness to the Petitioners than to the Oppositors in spite
that the inhabitants of this country whose customs must
of the close blood relationship existing between the
have been taken into consideration by the legislator in
testatrix and the Oppositors. The Oppositors also tried to
adopting this legal precept, are averse to such a liberty.”
prove the existence of another will which, according to
them, was read to the Oppositor Enrique Tanchuco three Oppositors-Appellants in their printed memorandum
days before the departure of the testatrix for the United contend that under Section 618 of Act 190, the Old Code
States, though no evidence whatsoever was presented as of Civil Procedure, which requires that a will should be
to what happened to the supposed will, where it is now, attested or subscribed by three or more credible
in whose hands it is, or in whose possession it could be witnesses, two of the attesting witnesses to the will in
found. The Oppositors also tried to prove that during the question, namely, Miss Navarro and Miss Canicosa, who
illness of the testatrix in 1948 they were unable to visit were employed as pharmacist and salesgirl, respectively,
her because of the influence of Emiliana Molo-Peckson, in the drugstore of Pilar Perez-Nable, one of beneficiaries
who told them that they could not visit the testatrix in the will, may not be considered credible witnesses for
because of the advice of the doctor. This testimony of the reason that as such employees, they would naturally
the Oppositors was satisfactorily contradicted by the testify in favor of their employer. We find the contention
testimony of Mrs. Emiliana Molo-Peckson who denied untenable. Section 620 of the same Code of Civil
that the testatrix was sick in the year 1948 and by means Procedure provides that any person of sound mind, and
of photographs which show that during the said period of of the age of eighteen years or more, and not blind, deaf,
time, which the Oppositors alleged to be the date when or dumb and able to read and write, may be a witness to
Mrs. Juana Juan Vda. de Molo was sick, the latter the execution of a will. This same provision is reproduced
attended several affairs, such as sponsoring the in our New Civil Code of 1950, under Art. 820. The relation
reconstruction of the Antipolo Church, attending a party of employer and employee, or being a relative to the
given in the house of Gen. Aguinaldo in Kawit, Cavite, and beneficiary in a will, does not disqualify one to be a
other social gatherings.” witness to a will. The main qualification of a witness in the
attestation of wills, if other qualifications as to age,
Neither do we find anything unusual or extraordinary in
mental capacity and literacy are present, is that said
the testatrix giving practically all her property to her
witness must be credible, that is to say, his testimony may
foster daughters, to the exclusion of her other relatives.
be entitled to credence. There is a long line of authorities
The two beneficiaries, as already stated, were taken in
on this point, a few of which we may cite:
and raised by her and her husband, Mariano, when they
chanroblesvirtuallawlibrary

were mere babies. Naturally, they became very much “A ‘credible witness’ is one who is not disqualified to
attached to and came to love said two children, specially testify by mental incapacity, crime, or other cause.
since they had none of their own. They sent them to good, Historical Soc. of Dauphin County vs. Kelker, 74 A. 619,
even expensive schools like the Santa Teresa, Santa 226 Pa. 16, 134 Am. St. Rep. 1010.” (Words and Phrases,
Escolastica, and the University of the Philippines, and Vol. 10, p. 340).
otherwise lavished their affection and their wealth on “As construed by the common law, a ‘credible witness’ to
their two protegees. Little wonder then that Juana in a will means a ‘competent witness’. Appeal of Clark, 95 A.
making her will made Emiliana and Pilar practically her 517, 114 Me. 105, Ann. Cas. 1917A, 837.” (Ibid. p. 341).
exclusive beneficiaries, specially since, So we understand, “Expression ‘credible witness’ in relation to attestation of
when these two girls had grown up to womanhood, and wills means ‘competent witness’; that is, one
chan roble svirtualawlibrary

been highly educated, they helped their foster parents in competent under the law to testify to fact of execution of
the administration of their extensive properties, and later will. Vernon’s Ann. Civ. St. art. 8283. Moos vs. First State
took good, kind, and tender care of them in their old age. Bank of Uvalde, Tex. Civ. App. 60 S. W. 2d 888, 889.” (Ibid.
We repeat that it was neither unusual nor extraordinary p. 842)
that the testatrix, with no forced heirs, should have made
her two foster daughters, the beneficiaries in her will, to “The term ‘credible’, used in the statute of wills requiring
the exclusion of her blood relatives. Said this Court in a that a will shall be attested by two credible witnesses,
similar case — Pecson vs. Coronel, 45 Phil. 220: chanroblesvirtuallawlibrary
means competent; witnesses who, at the time of
chan roblesvirtualawlibrary

attesting the will, are legally competent to testify, in a

“The Appellants emphasize the fact that family ties in this court of justice, to the facts attested by subscribing the
country are very strongly knit and that the exclusion of will, the competency being determined as of the date of
relatives from one’s estate is an exceptional case. It is true the execution of the will and not of the time it is offered
that the ties of relationship in the Philippines are very for probate. Smith vs. Goodell, 101 N.E. 255, 256, 258 Ill.
strong, but we understand that cases of preterition of 145. (Ibid.)
relatives from the inheritance are not rare. The liberty to
dispose of one’s estate by will when there are no forced “‘Credible witnesses’, as used in the statute relating to
heirs is rendered sacred by the Civil Code in force in the wills, means competent witnesses — that is, such persons
Philippines since 1889. It is so provided in the first as are not legally disqualified from testifying in courts of
paragraph of article 763 in the following terms: chanroble svirtuallawlibrary
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 III. 42.” (Ibid. p. 343)
This Tribunal itself held in the case of Vda. de Roxas vs.
Roxas, 48 Off. Gaz., 2177, that the law does not bar
relatives, either of the testator or of the heirs or legatees,
from acting as attesting witnesses to a will.
In view of the foregoing, finding no reversible error in the
decision appealed from the same is hereby affirmed. No
costs.
G.R. Nos. L-3087 and L-3088 July 31, 1954 assignment of their share right, title and interest in the
estate of the late Jose B. Suntay to Jose G. Gutierrez
In re: Testate Estate of the deceased JOSE B. and the spouses Ricardo Gutierrez and Victoria Goño
SUNTAY. SILVINO SUNTAY, petitioner-appellant, and the subsequent assignment thereof by the
vs. assignees to Francisco Pascual and by the latter to
In re: Intestate Estate of the deceased JOSE B. Federico C. Suntay, for the validity and legality of such
SUNTAY, assignments cannot be threshed out in this proceedings
FEDERICO C. SUNTAY, administrator-appellee. which is concerned only with the probate of the will and
testament executed in the Philippines on November
Claro M. Recto for appellant. 1929 or of the foreign will allegedly executed in Amoy
Sison and Aruego for appellee. on 4 January 1931 and claimed to have been probated
in the municipal district court of Amoy, Fookien
province, Republic of China.
PADILLA, J.:
As to prescription, the dismissal of the petition for
This is an appeal from a decree of the Court of First
probate of the will on 7 February 1938 was no bar to the
Instance of Bulacan disallowing the alleged will and
filing of this petition on 18 June 1947, or before the
testament executed in Manila on November 1929, and
expiration of ten years.
the alleged last will and testament executed in
Kulangsu, Amoy, China, on 4 January 1931, by Jose B.
Suntay. The value of the estate left by the deceased is As to the lost will, section 6, Rule 77, provides:
more than P50,000.
No will shall be proved as a lost or destroyed
On 14 May 1934 Jose B. Suntay, a Filipino citizen and will unless the execution and validity of the
resident of the Philippines, died in the city of Amoy, same be established, and the will is proved to
Fookien province, Republic of China, leaving real and have been in existence at the time of the death
personal properties in the Philippines and a house in of the testator, or is shown to have been
Amoy, Fookien province, China, and children by the first fraudulently or accidentally destroyed in the
marriage had with the late Manuela T. Cruz namely, lifetime of the testator without his knowledge,
Apolonio, Concepcion, Angel, Manuel, Federico, Ana, nor unless its provisions are clearly and
Aurora, Emiliano, and Jose, Jr. and a child named distinctly proved by at least two credible
Silvino by the second marriage had with Maria witnesses. When a lost will is proved, the
Natividad Lim Billian who survived him. Intestate provisions thereof must be distinctly stated and
proceedings were instituted in the Court of First certified by the judge, under the seal of the
Instance of Bulacan (special proceedings No. 4892) court, and the certificate must be filed and
and after hearing letters of administration were issued recorded as other wills are filed and recorded.
to Apolonio Suntay. After the latter's death Federico C.
Suntay was appointed administrator of the estate. On The witnesses who testified to the provisions of the lost
15 October 1934 the surviving widow filed a petition in will are Go Toh, an attesting witness, Anastacio
the Court of First Instance of Bulacan for the probate of Teodoro and Ana Suntay. Manuel Lopez, who was an
a last will and testament claimed to have been executed attesting witness to the lost will, was dead at the time of
and signed in the Philippines on November 1929 by the the hearing of this alternative petition. In his deposition
late Jose B. Suntay. This petition was denied because Go Toh testifies that he was one of the witnesses to the
of the loss of said will after the filing of the petition and lost will consisting of twenty-three sheets signed by
before the hearing thereof and of the insufficiency of the Jose B. Suntay at the bottom of the will and each and
evidence to establish the loss of the said will. An appeal every page thereof in the presence of Alberto Barretto,
was taken from said order denying the probate of the Manuel Lopez and himself and underneath the
will and this Court held the evidence before the probate testator's signature the attesting witnesses signed and
court sufficient to prove the loss of the will and each of them signed the attestation clause and each
remanded the case to the Court of First Instance of and every page of the will in the presence of the testator
Bulacan for the further proceedings (63 Phil., 793). In and of the other witnesses (answers to the 31st, 41st,
spite of the fact that a commission from the probate 42nd, 49th, 50th, 55th and 63rd interrogatories, Exhibit
court was issued on 24 April 1937 for the taking of the D-1), but did not take part in the drafting thereof (answer
deposition of Go Toh, an attesting witness to the will, on to the 11th interrogatory, Id.); that he knew the contents
7 February 1938 the probate court denied a motion for of the will written in Spanish although he knew very little
continuance of the hearing sent by cablegram from of that language (answers to the 22nd and 23rd
China by the surviving widow and dismissed the interrogatories and to X-2 cross-interrogatory, Id.) and
petition. In the meantime the Pacific War supervened. all he knows about the contends of the lost will was
After liberation, claiming that he had found among the revealed to him by Jose B. Suntay at the time it was
files, records and documents of his late father a will and executed (answers to the 25th interrogatory and to X-4
testament in Chinese characters executed and signed and X-8 cross-interrogatories, Id.); that Jose B. Suntay
by the deceased on 4 January 1931 and that the same told him that the contents thereof are the same as those
was filed, recorded and probated in the Amoy district of the draft (Exhibit B) (answers to the 33rd
court, Province of Fookien, China, Silvino Suntay filed interrogatory and to X-8 cross-interrogatory, Id.) which
a petition in the intestate proceedings praying for the he saw in the office of Alberto Barretto in November
probate of the will executed in the Philippines on 1929 when the will was signed (answers to the 69th,
November 1929 (Exhibit B) or of the will executed in 72nd, and 74th interrogatories, Id); that Alberto Barretto
Amoy, Fookien, China, on 4 January 1931 (Exhibit N). handed the draft and said to Jose B. Suntay: "You had
better see if you want any correction" (answers to the
There is no merit in the contention that the petitioner 81st, 82nd and 83rd interrogatories, Id.); that "after
Silvino Suntay and his mother Maria Natividad Lim checking Jose B. Suntay put the "Exhibit B" in his
Billian are estopped from asking for the probate of the pocket and had the original signed and executed"
lost will or of the foreign will because of the transfer or (answers to the 91st interrogatory, and to X-18 cross-
interrogatory, Id.); that Mrs. Suntay had the draft of the correction" and that "after checking Jose B. Suntay put
will (Exhibit B) translated into Chinese and he read the the "Exhibit B" in his pocket and had the original signed
translation (answers to the 67th interrogatory, Id.); that and executed" cannot be true, for it was not the time for
he did not read the will and did not compare it (check it correcting the draft of the will, because it must have
up) with the draft (Exhibit B) (answers to X-6 and X-20 been corrected before and all corrections and additions
cross-interrogatories, Id.). written in lead pencil must have been inserted and
copied in the final draft of the will which was signed on
Ana Suntay testifies that sometime in September 1934 that occasion. The bringing in for the draft (Exhibit B) on
in the house of her brother Apolonio Suntay she learned that occasion is just to fit it within the framework of the
that her father left a will "because of the arrival of my appellant's theory. At any rate, all of Go Toh's testimony
brother Manuel Suntay, who was bringing along with by deposition on the provisions of the alleged lost will is
him certain document and he told us or he was telling hearsay, because he came to know or he learned to
us that it was the will of our father Jose B. Suntay which them from information given him by Jose B. Suntay and
was taken from Go Toh. ..." (p. 524, t. s. n., hearing of from reading the translation of the draft (Exhibit B) into
24 February 1948); that she saw her brother Apolonio Chinese.
Suntay read the document in her presence and of
Manuel and learned of the adjudication made in the will Much stress is laid upon the testimony of Federico C.
by her father of his estate, to wit: one-third to his Suntay who testifies that he read the supposed will or
children, one-third to Silvino and his mother and the the alleged will of his father and that the share of the
other third to Silvino, Apolonio, Concepcion and Jose, surviving widow, according to the will, is two-thirds of
Jr. (pp. 526-8, 530-1, 542, t. s. n. Id.); that "after the estate (p. 229, t. s. n., hearing of 24 October 1947).
Apolonio read that portion, then he turned over the But this witness testified to oppose the appointment of
document to Manuel, and he went away," (p. 528, t. s. a co-administrator of the estate, for the reason that he
n., Id.). On cross-examination, she testifies that she had acquired the interest of the surviving widow not only
read the part of the will on adjudication to know what in the estate of her deceased husband but also in the
was the share of each heir (pp. 530, 544, t. s. n., Id.) conjugal property (pp. 148, 205, 228, 229, 231, t. s.
and on redirect she testifies that she saw the signature n., Id.) Whether he read the original will or just the copy
of her father, Go Toh, Manuel Lopez and Alberto thereof (Exhibit B) is not clear. For him the important
Barretto (p. 546, t. s. n., Id.). point was that he had acquired all the share,
participation and interest of the surviving widow and of
Anastacio Teodoro testifies that one day in November the only child by the second marriage in the estate of
1934 (p. 273, t. s. n., hearing of 19 January 1948), his deceased father. Be that as it may, his testimony
before the last postponement of the hearing granted by that under the will the surviving widow would take two-
the Court, Go Toh arrived at his law office in the De los thirds of the estate of the late Jose B. Suntay is at
Reyes Building and left an envelope wrapped in red variance with Exhibit B and the testimony of Anastacio
handkerchief [Exhibit C] (p. 32, t. s. n., hearing of 13 Teodoro. According to the latter, the third for strict
October 1947); that he checked up the signatures on legitime is for the ten children; the third for betterment
the envelope Exhibit A with those on the will placed in is for Silvino, Apolonio, Concepcion and Jose Jr.; and
the envelope (p. 33, t. s. n., Id.); that the will was exactly the third for free disposal is for the surviving widow and
the same as the draft Exhibit B (pp. 32, 47, 50, t. s. her child Silvino.
n., Id.).
Hence, granting that there was a will duly executed by
If the will was snatched after the delivery thereof by Go Jose B. Suntay placed in the envelope (Exhibit A) and
Toh to Anastacio Teodoro And returned by the latter to that it was in existence at the time of, and not revoked
the former because they could not agree on the amount before, his death, still the testimony of Anastacio
of fees, the former coming to the latter's office straight Teodoro alone falls short of the legal requirement that
from the boat (p. 315, t. s. n., hearing of 19 January the provisions of the lost will must be "clearly and
1948) that brought him to the Philippines from Amoy, distinctly proved by at least two credible witnesses."
and that delivery took place in November 1934 (p. 273, Credible witnesses mean competent witnesses and
t. s. n., Id.), then the testimony of Ana Suntay that she those who testify to facts from or upon hearsay are
saw and heard her brother Apolonio Suntay read the neither competent nor credible witnesses.
will sometime in September 1934 (p. 524, t. s. n.,
hearing of 24 February 1948), must not be true. On the other hand, Alberto Barretto testifies that in the
early part of 1929 he prepared or drew up two mills for
Although Ana Suntay would be a good witness because Jose B. Suntay at the latter's request, the rough draft of
she was testifying against her own interest, still the fact the first will was in his own handwriting, given to Manuel
remains that she did not read the whole will but only the Lopez for the final draft or typing and returned to him;
adjudication (pp. 526-8, 530-1, 542, t. s. n., Id.) and saw that after checking up the final with the rough draft he
only the signature, of her father and of the witnesses Go tore it and returned the final draft to Manuel Lopez; that
Toh, Manuel Lopez and Alberto Barretto (p. 546, t. s. this draft was in favor of all the children and the widow
n., Id.). But her testimony on cross-examination that (pp. 392-4, 449, t. s. n., hearing of 21 February 1948);
she read the part of the will on adjudication is that two months later Jose B. Suntay and Manuel Lopez
inconsistent with her testimony in chief that after called on him and the former asked him to draw up
Apolonio had read that part of the will he turned over or another will favoring more his wife and child Silvino; that
handed the document to Manuel who went away (p. he had the rough draft of the second will typed (pp. 395,
528, t. s. n., Id.). 449 t. s. n., Id.) and gave it to Manuel Lopez (p. 396, t.
s. n., Id.); that he did not sign as witness the second will
If it is true that Go Toh saw the draft Exhibit B in the of Jose B. Suntay copied from the typewritten draft
office of Alberto Barretto in November 1929 when the [Exhibit B] (p. 420, t. s. n., Id.); that the handwritten
will was signed, then the part of his testimony that insertions or additions in lead pencil to Exhibit B are not
Alberto Barretto handed the draft to Jose B. Suntay to his (pp. 415-7 435-6, 457, t. s. n., Id.); that the final draft
whom he said: "You had better see if you want any of the first will made up of four or five pages (p. 400, t.
s. n., Id.) was signed and executed, two or three months the will shall have the same effect as if originally
after Suntay and Lopez had called on him (pp. 397-8, proved and allowed in such court.
403, 449, t. s. n., Id.) in his office at the Cebu Portland
Cement in the China Banking Building on Dasmariñas The fact that the municipal district court of Amoy, China,
street by Jose B. Suntay, Manuel Lopez and a is a probate court must be proved. The law of China on
Chinaman who had all come from Hagonoy (p. 398, t. procedure in the probate or allowance of wills must also
s. n., Id.); that on that occasion they brought an be proved. The legal requirements for the execution of
envelope (Exhibit A) where the following words were a valid will in China in 1931 should also be established
written: "Testamento de Jose B. Suntay" (pp. 399, 404, by competent evidence. There is no proof on these
t. s. n., Id.); that after the signing of the will it was placed points. The unverified answers to the questions
inside the envelope (Exhibit A) together with an propounded by counsel for the appellant to the Consul
inventory of the properties of Jose B. Suntay and the General of the Republic of China set forth in Exhibits R-
envelope was sealed by the signatures of the testator 1 and R-2, objected to by counsel for the appellee, are
and the attesting witnesses (pp. 398, 401, 441, 443, inadmissible, because apart from the fact that the office
461, t. s. n., Id.); that he again saw the envelope (Exhibit of Consul General does not qualify and make the
A) in his house one Saturday in the later part of August person who holds it an expert on the Chinese law on
1934, brought by Go Toh and it was then in perfect procedure in probate matters, if the same be admitted,
condition (pp. 405-6, 411, 440-2, t. s. n., Id.); that on the the adverse party would be deprived of his right to
following Monday Go Toh went to his law office bringing confront and cross-examine the witness. Consuls are
along with him the envelope (Exhibit A) in the same appointed to attend to trade matters. Moreover, it
condition; that he told Go Toh that he would charge appears that all the proceedings had in the municipal
P25,000 as fee for probating the will (pp. 406, 440- district court of Amoy were for the purpose of taking the
2, Id.); that Go Toh did not leave the envelope (Exhibit testimony of two attesting witnesses to the will and that
A) either in his house or in his law office (p. 407, t. s. the order of the municipal district court of Amoy does
n., Id.); that Go Toh said he wanted to keep it and on no not purport to probate the will. In the absence of proof
occasion did Go Toh leave it to him (pp. 409, 410, t. s. that the municipal district court of Amoy is a probate
n., Id.). court and on the Chinese law of procedure in probate
matters, it may be presumed that the proceedings in the
The testimony of Go Toh taken and heard by Assistant matter of probating or allowing a will in the Chinese
Fiscal F. B. Albert in connection with the complaint for courts are the a deposition or to a perpetuation of
estafa filed against Manuel Suntay for the alleged testimony, and even if it were so it does not measure
snatching of the envelope (Exhibit A), corroborates the same as those provided for in our laws on the subject.
testimony of Alberto Barretto to the effect that only one It is a proceedings in rem and for the validity of such
will was signed by Jose B. Suntay at his office in which proceedings personal notice or by publication or both to
he (Alberto Barretto), Manuel Lopez and Go Toh took all interested parties must be made. The interested
part as attesting witnesses (p. 15, t. s. n., Exhibit 6). Go parties in the case were known to reside in the
Toh testified before the same assistant fiscal that he did Philippines. The evidence shows that no such notice
not leave the will in the hands of Anastacio Teodoro (p. was received by the interested parties residing in the
26, t. s. n., Exhibit 6). He said, quoting his own words, Philippines (pp. 474, 476, 481, 503-4, t. s. n., hearing of
"Because I can not give him this envelope even though 24 February 1948). The proceedings had in the
the contract (on fees) was signed. I have to bring that municipal district court of Amoy, China, may be likened
document to court or to anywhere else myself." (p. 27, toe or come up to the standard of such proceedings in
t. s. n., Exhibit 6). the Philippines for lack of notice to all interested parties
and the proceedings were held at the back of such
As to the will claimed to have been executed on 4 interested parties.
January 1931 in Amoy, China, the law on the point in
Rule 78. Section 1 of the rule provides: The order of the municipal district court of Amoy, China,
which reads as follows:
Wills proved and allowed in a foreign country,
according to the laws of such country, may be ORDER:
allowed, filed, and recorded by the proper Court
of First Instance in the Philippines. SEE BELOW

Section 2 provides: The above minutes were satisfactorily

confirmed by the interrogated parties, who
When a copy of such will and the allowance declare that there are no errors, after said
thereof, duly authenticated, is filed with a minutes were loudly read and announced
petition for allowance in the Philippines, by the actually in the court.
executor or other person interested, in the court
having jurisdiction, such court shall fix a time Done and subscribed on the Nineteenth day of
and place for the hearing, and cause notice the English month of the 35th year of the
thereof to be given as in case of an original will Republic of China in the Civil Section of the
presented for allowance. Municipal District Court of Amoy, China.

Section 3 provides:
HUANG KUANG CHENG
Clerk of Court
If it appears at the hearing that the will should
be allowed in the Philippines, the court shall so CHIANG TENG HWA
allow it, and a certificate of its allowance, signed Judge
by the Judge, and attested by the seal of the
courts, to which shall be attached a copy of the
will, shall be filed and recorded by the clerk, and (Exhibit N-13, p. 89 Folder of Exhibits.).
does not purport to probate or allow the will which was after getting its contents and throwing away the
the subject of the proceedings. In view thereof, the will envelope, they fled.
and the alleged probate thereof cannot be said to have
been done in accordance with the accepted basic and Upon this allegation, the petitioner asks in this
fundamental concepts and principles followed in the case that the brothers Apolonio, Angel, Manuel
probate and allowance of wills. Consequently, the and Jose Suntay, children by the first marriage
authenticated transcript of proceedings held in the of the deceased, who allegedly have the
municipal district court of Amoy, China, cannot be document contained in the envelope which is
deemed and accepted as proceedings leading to the the will of the deceased, be ordered to present
probate or allowance of a will and, therefore, the will it in court, that a day be set for the reception of
referred to therein cannot be allowed, filed and recorded evidence on the will, and that the petitioner be
by a competent court of this country. appointed executrix pursuant to the designation
made by the deceased in the will.
The decree appealed from is affirmed, without
pronouncement as to costs. In answer to the court's order to present the
alleged will, the brothers Apolonio, Angel,
Pablo, Bengzon, A. Reyes, Labrador and Concepcion, Manuel and Jose Suntay stated that they did not
JJ., concur. have the said will and denied having snatched
it from Go Toh.

In view of the allegations of the petition and the

answer of the brothers Apolonio, Angel, Manuel
Separate Opinions and Jose Suntay, the questions raised herein
are: The loss of the alleged will of the deceased,
whether Exhibit B accompanying the petition is
PARAS, C.J., dissenting:
an authentic copy thereof, and whether it has
been executed with all the essential and
As a preliminary statement we may well refer to the necessary formalities required by law for its
case of Maria Natividad Lim Billian, petitioner and probate.
appellant, vs. Apolonio Suntay, Angel Suntay, Manuel
Suntay, and Jose Suntay, oppositors and appellees, 63
At the trial of the case on March 26, 1934, the
Phil., 793-797, in which the following decision was
petitioner put two witnesses upon the stand, Go
rendered by this Court on November 25, 1936, holding
Toh and Tan Boon Chong, who corroborated
that the will executed by Jose B. Suntay who died in the
the allegation that the brothers Apolonio and
City of Amoy, China, on May 14, 1934, was lost under
Angel appropriated the envelope in the
the circumstances pointed out therein, and ordering the
circumstances above-mentioned. The
return of the case to the Court of First Instance of
oppositors have not adduced any evidence
Bulacan for further proceedings:
counter to the testimony of these two witnesses.
The court, while making no express finding on
On May 14, 1934, Jose B. Suntay died in the this fact, took it for granted in its decision; but it
City of Amoy, China. He married twice, the first dismissed the petition believing that the
time to Manuela T. Cruz with whom he had evidence is insufficient to establish that the
several children now residing in the Philippines, envelope seized from Go Toh contained the will
and the second time to Maria Natividad Lim of the deceased, and that the said will was
Billian with whom he had a son. executed with all the essential and necessary
formalities required by law for its probate.
On the same date, May 14, 1934, Apolonio
Suntay, eldest son of the deceased by his first In our opinion, the evidence is sufficient to
marriage, filed the latter's intestate in the Court establish the loss of the document contained in
of First Instance of Manila (civil case No. 4892). the envelope. Oppositors' answer admits that,
according to Barretto, he prepared a will of the
On October 15, 1934, and in the same court, deceased to which he later become a witness
Maria Natividad Lim Billian also instituted the together with Go Toh and Manuel Lopez, and
present proceedings for the probate of a will that this will was placed in an envelope which
allegedly left by the deceased. was signed by the deceased and by the
instrumental witnesses. In court there was
According to the petitioner, before the presented and attached to the case an open
deceased died in China he left with her a sealed and empty envelope signed by Jose B. Suntay,
envelope (Exhibit A) containing his will and, also Alberto Barretto, Go Toh and Manuel Lopez. It
another document (Exhibit B of the petitioner) is thus undeniable that this envelope Exhibit A
said to be a true copy of the original contained is the same one that contained the will executed
in the envelope. The will in the envelope was by the deceased-drafted by Barretto and with
executed in the Philippines, with Messrs. Go the latter, Go Toh and Manuel Lopez as
Toh, Alberto Barretto and Manuel Lopez as attesting witnesses. These tokens sufficiently
attesting witnesses. On August 25, 1934, Go point to the loss of the will of the deceased, a
Toh, as attorney-in-fact of the petitioner, arrived circumstance justifying the presentation of
in the Philippines with the will in the envelope secondary evidence of its contents and of
and its copy Exhibit B. While Go Toh was whether it was executed with all the essential
showing this envelope to Apolonio Suntay and and necessary legal formalities.
Angel Suntay, children by first marriage of the
deceased, they snatched and opened it and, The trial of this case was limited to the proof of
loss of the will, and from what has taken place
 we deduce that it was not petitioner's intention The Clerk of the Court of Court of First Instance
to raise, upon the evidence adduced by her, the of Bulacan notified the parties of the decision on
other points involved herein, namely, as we December 15, 1936; and the case was set for
have heretofore indicated, whether Exhibit B is hearing on February 12, 1937, but it was
a true copy of the will and whether the latter was transferred to March 29, 1937 (Exhibit O), on
executed with all the formalities required by law motion of the then petitioner Maria Natividad
for its probate. The testimony of Alberto Barretto Lim Billian (Exhibit F). Again, it was postponed
bears importantly in this connection. until "further setting" in the order of court dated
March 18, 1937, upon motion of the petitioner
Wherefore, the loss of the will executed by the (Exhibit H).
deceased having been sufficiently established,
it is ordered that this case be remanded to the In the meantime, the deposition of Go Toh was
court of origin for further proceedings in being sought (Exhibit H).
obedience to this decision, without any
pronouncement as to the costs. So ordered The hearing of the case was again set for
February 7, 1936, by order of the court dated
On June 18, 1947, Silvino Suntay, the herein petitioner, January 5, 1938, upon motion of Emiliano
filed a petition in the Court of First Instance of Bulacan Suntay and Jose Suntay, Jr. On the same day
praying "that an order be issued (a) either directing the of the hearing which had been set, the
continuation of the proceedings in the case remanded petitioner, then, Maria Natividad Lim Billian,
by the Supreme Court by virtue of its decision in G. R. sent a telegram from Amoy, China, addressed
No. 44276 and fixing a date for the reception of to the Court of First Instance of Bulacan moving
evidence of the contents of the will declared lost, or the for the postponement of the hearing on the
allowance, filing and recording of the will of the ground that Atty. Eriberto de Silva who was
deceased which had been duly probated in China, upon representing her died (Exhibit K). The court,
the presentation of the certificates and authentications instead of granting the telegraphic motion for
required by Section 41, Rule 123 (Yu postponement, dismissed the case in the order
Chengco vs. Tiaoqui supra), or both proceedings dated February 7, 1938 (Exhibit L).
concurrently and simultaneously; (b) that letters of
administration be issued to herein petitioner as co- On July 3, 1947, the petitioner Silvino Suntay
administrator of the estate of the deceased together filed a motion for the consolidation of the
with Federico Suntay; and (c) that such other necessary intestate Estate of the deceased Jose B.
and proper orders be issued which this Honorable Court Suntay, Special Proceeding No. 4892 and the
deems appropriate in the premises." While this petition Testate Estate of Jose B. Suntay, Special
was opposed by Federico C. Suntay, son of the Proceeding No. 4952, which latter case is the
deceased Jose B. Suntay with his first wife, Manuela T. subject of the said alternative petition. The
Cruz, the other children of the first marriage, namely, motion for the merger and consolidation of the
Ana Suntay, Aurora Suntay, Concepcion Suntay, two cases was granted on July 3, 1947.
Lourdes Guevara Vda. de Suntay, Manuel Suntay and
Emiliano Suntay, filed the following answer stating that That oppositor, Federico C. Suntay, in the
they had no opposition thereto; "Come now the heirs Testate Proceeding filed a motion to dismiss the
Concepcion Suntay, Ana Suntay, Aurora Suntay, alternative petition on November 14, 1947,
Lourdes Guevara Vda. de Suntay, Manuel Suntay, and which was denied by the court in its resolution
Emiliano Suntay, through their undersigned attorney, of November 22, 1947. The said oppositor not
and, in answer to the alternative petition filed in these being satisfied with the ruling of this court
proceedings by Silvino Suntay, through counsel, dated denying the motion to dismiss, filed before the
June 18, 1947, to this Honorable Court respectfully Supreme Court a petition for a writ
state that, since said alternative petition seeks only to of certiorari with preliminary injunction, which
put into effect the testamentary disposition and wishes was dismissed for lack of merit on January 27,
of their late father, they have no opposition thereto." 1948.

After hearing, the Court of First Instance of Bulacan In obedience to the decision of the Supreme
rendered on April 19, 1948, the following decision: Court (Exhibit O) and upon the alternative
petition of Silvino Suntay, and, further, upon the
This action is for the legalization of the alleged dismissal of the petition for a writ
will of Jose B. Suntay, deceased. of certiorari with preliminary injunction, the
court was constrained to proceed with the
In order to have a comprehensive hearing of the probate of the lost will, the draft
understanding of this case, it is necessary to of which is Exhibit B, or the admission and
state the background on which the alternative recording of the will which had been probated in
petition of the herein petitioner Silvino Suntay Amoy, China.
has been based.
The evidence for the petitioner, Silvino Suntay,
The decision of the Supreme Court (Exhibit O), shows that Jose B. Suntay married twice; first
in re will of the deceased Jose B. Suntay, 63 to Manuela T. Cruz who died on June 15, 1920
Phil., 793-797, is hereunder produced: and had begotten with her Apolonio, now
deceased, Concepcion, Angel, Manuel,
(As quoted above) Federico, Ana, Aurora, Emiliano and Jose, Jr.,
all surnamed Suntay, and second, to Maria
The above quoted decision of the Supreme Natividad Lim Billian with whom he had as the
Court was promulgated on November 25, 1936 only child Silvino Suntay, the petitioner herein.
(Exhibit O).
Some time in November 1929, Jose B. Suntay characters (Exhibit P) was discovered in Amoy,
executed his last will and testament in the office China, among the papers left by Jose B.
of Atty. Alberto Barretto in Manila, which was Suntay, and said will had been allowed to
witnessed by Alberto Barretto, Manuel Lopez probate in the Amoy District Court, China, which
and Go Toh. The will was prepared by said is being also presented by Silvino Suntay for
Alberto Barretto upon the instance of Jose B. allowance and recording in this court.
Suntay, and it was written in the Spanish
language which was understood and spoken by The said petition is opposed by Federico C.
said testator. After the due execution of the will, Suntay on the main ground that Maria Natividad
that is signing every page and the attestation Lim Billian and Silvino Suntay have no more
clause by the testator and the witnesses in the interest in the properties left by Jose B. Suntay,
presence of each other, the will was placed because they have already sold their respective
inside the envelope (Exhibit A), sealed and on shares, interests and participations. But such a
the said envelope the testator and the three ground of opposition is not of moment in the
subscribing witnesses also signed, after which instant case, because the proposition involved
it was delivered to Jose B. Suntay. herein in the legalization of the lost will or the
allowance and recording of the will which had
A year or so after the execution of the will, Jose been probated in Amoy, China.
B. Suntay together with his second wife Maria
Natividad Lim Billian and Silvino Suntay who It is now incumbent upon this court to delve into
was then of tender age went to reside in Amoy, the evidence whether or not Jose B. Suntay,
Fookien, China, where he died on May 14, deceased, left a will (the draft of which is Exhibit
1934. The will was entrusted to the widow, B) and another will which was executed and
Maria Natividad Lim Billian. another will which was executed and probated
in Amoy, China.
Upon the death of Jose B. Suntay on May 14,
1934, Apolonio Suntay, the oldest son now There is no longer any doubt that Jose B.
deceased, instituted the Intestate Proceedings Suntay while he was still residing in the
No. 4892, upon the presumption that no will Philippines, had executed a will; such is the
existed. Maria Natividad Lim Billian who conclusion of the Supreme Court in its decision
remained in Amoy, China, had with her the will (Exhibit O). That the will was snatched and it
and she engaged the services of the law firm of has never been produced in court by those who
Barretto and Teodoro for the probate of the will. snatched it, and consequently considered lost,
Upon the request of the said attorneys the will is also an established fact.
was brought to the Philippines by Go Toh who
was one of the attesting witnesses, and it was The contention of the oppositor, Federico C.
taken to the law office of Barretto and Teodoro. Suntay, is that the will that was executed by
The law firm of Barretto and Teodoro was Jose B. Suntay in the Philippines contained
composed of Atty. Alberto Barretto and Judge provisions which provided for equal distribution
Anastacio Teodoro. The probate of the will was of the properties among the heirs; hence, the
entrusted to the junior partner Judge Anastacio draft (Exhibit B) cannot be considered as
Teodoro; and, upon the presentation of the secondary evidence, because it does not
sealed envelope to him, he opened it and provide for equal distribution, but if favors Maria
examined the said will preparatory to the filing Natividad Lim Billian and Silvino Suntay. He
of the petition for probate. There was a relies on the testimony of Atty. Alberto Barretto
disagreement as to the fees to be paid by Maria who declared that the first will which he drafted
Natividad Lim Billian, and as she (through Go and reduced into a plain copy was the will that
Toh) could not agree to pay, P20,000 as fees, was executed by Jose B. Suntay and placed
the will was returned to Go Toh by Judge inside the envelope (Exhibit A).
Anastacio Teodoro after the latter had kept it in
his safe, in his office, for three days.
Granting that the first will which Atty. Alberto
Barretto had drafted became the will of Jose B.
Subsequently, the will inside the envelope was Suntay and it was snatched by, and, therefore,
snatched from Go Toh by Manuel Suntay and it had fallen into the hands of, Manuel Suntay
Jose, Jr., which fact has been established in the and the brothers of the first marriage, it stands
decision of the Supreme Court at the beginning to reason that said Manuel Suntay and brothers
of this decision. Go Toh could recover the would have been primarily interested in the
envelope (Exhibit A) and the piece of cloth with production of said will in court, for obvious
which the envelope was wrapped (Exhibit C). reasons, namely, that they would have been
favored. But it was suppressed and "evidence
The Testate Proceeding was filed nevertheless willfully suppressed would be adverse if
and in lien of the lost will a draft of the will produced" (Section 69 (e), Rule 123 of the
(Exhibit B) was presented as secondary Rules of Court). The contention, therefore, that
evidence for probate. It was disallowed by this the first will which was drafted by Atty. Barretto
court through Judge Buenaventura Ocampo, was the one placed inside the envelope (Exhibit
but on appeal the Supreme Court remanded the A) is untenable.
case to this court for further proceeding (Exhibit
C). It might be said in this connection that the draft
of the will (Exhibit B) has been admitted by Atty.
In the meantime, a Chinese will which was Alberto Barretto as identical in substance and
executed in Amoy Fookien, China, on January form to the second draft which he prepared in
4, 1931, by Jose B. Suntay, written in Chinese typewriting; it differs only, according to him, in
style. He denied that the insertions in long hand "No will shall be proved as a lost or destroyed
in the said draft are in his own handwriting; will unless the execution and validity of the
however, Judge Anastacio Teodoro averred same be established, and the will is proved to
that the said insertions are the handwriting of have been in existence at the time of the death
Atty. Alberto Barretto. But when Atty. Alberto of the testator, or it is shown to have been
Barretto was asked to show any manuscript of fraudulently or accidentally destroyed in the
his for purposes of comparison, he declined to lifetime of the testator without his knowledge,
do so alleging that he did not have any nor unless its provisions are clearly and
document in his possession showing his distinctly proved by at least two credible
handwriting notwithstanding the fact that he witnesses. When a lost will is proved, the
was testifying in his own house at 188 Sta. provisions thereof must be distinctly stated and
Mesa Boulevard, Manila. He further testified certified by the judge, under the seal of the
that the first will be drafted contained four or five court, and the certificate must be filed and
pages, but the second draft contained twenty- recorded as other wills are filed and recorded."
three pages; that he declared in one breath that
he did not read the will any more when it was Section 8 of the same Rule provides as follows:
signed by the testator and the attesting
witnesses because it would take up much time, "If it appears at the time fixed for the hearing
and in the same breath he declared that he that the subscribing witnesses are dead or
checked it before it was signed; and that he insane, or that none of them resides in the
destroyed the draft of the first will which was in Philippines the court may admit the testimony of
his own handwriting, but he delivered the draft other witnesses to prove the sanity of the
of the second will which he prepared to Jose B. testator, and the due execution of the will; and
Suntay in the presence of Manuel Lopez, now as evidence of the due execution of the will, it
deceased. may admit proof of the handwriting of the
testator and of the subscribing witnesses, or
Whether or not the final plain copy of the draft any of them."
of the will (Exhibit B) was executed by the
testator, Jose B. Suntay, and attested by the Manuel Lopez as one of the subscribing
subscribing witnesses, Atty. Alberto Barretto, witnesses is dead. Atty. Alberto Barretto and Go
Manuel Lopez and Go Toh, is the pivotal point Toh are still living. The former testified during
in this instant case. Judge Anastacio Teodoro the hearing, while Go Toh's deposition was
testified that he opened the sealed envelope introduced in evidence which was admitted. In
when it was given to him by Go Toh preparatory the absence of the testimony of Manuel Lopez,
to the presentation of the petition for the probate deceased, the testimony of Judge Anastacio
of the said will. As the lawyer entrusted with that Teodoro and Ana Suntay was received.
task, he had to examine the will and have it
copied to be reproduced or appended to the
It is an established fact that the will, draft of
petition. He could not do otherwise if he is worth
which is Exhibit B, was lost or destroyed; that it
salt as a good lawyer; he could not perform the
was executed and valid and that it existed at the
stunt of "blind flying" in the judicial firmament.
time of the death of Jose B. Suntay. These
Every step must be taken with certainty and
circumstances also apply to the will (Exhibit P)
precision under any circumstances. He could
which was executed in Amoy, China.
not have talked about the attorney's fees with
Go Toh, unless he has not examined the will
beforehand. And, declaring that it was the exact The contents of the Chinese will is substantially
draft of the will that was inside the envelope the same as the draft (Exhibit B). Granting that
(Exhibit A), the testimony of Atty. Alberto the will executed in the Philippines is non-
Barretto to the contrary notwithstanding. existent as contended by the oppositor,
although the findings of this court is otherwise,
the will executed and probated in China should
The testimony of Judge Anastacio Teodoro is
be allowed and recorded in this court. All the
corroborated by Go Toh, one of the attesting
formalities of the law in China had been
witnesses, in his deposition (Exhibit D-1).
followed in its execution, on account of which it
was duly probated in the Amoy District Court.
Ana Suntay, one of the heirs and who would be There is no cogent reason, therefore, why it
affected adversely by the legalization of the will should not be admitted and recorded in this
in question, also testified on rebuttal that she jurisdiction.
saw the original will in the possession of Manuel
Suntay, immediately after the snatching. She
The said will (Exhibit P) in Chinese characters
read it and she particularly remembers the
is presented as an alternate in case the will
manner in which the properties were to be
executed in the Philippines would not be
distributed. Exhibit B was shown to her on the
allowed to probate, or as a corroborative
witness stand and she declared that the
evidence that the will, the draft of which is
provision regarding the distribution of the
Exhibit B, has been duly executed in the
properties in said Exhibit B is the same as that
Philippines by Jose B. Suntay.
contained in the original will. Said testimony of
Ana Suntay, therefore, belies the testimony of
Atty. Alberto Barretto. Rule 78 of the Rules of Court covers the
allowance of will proved outside of the
Philippines and administration of estate
With respect to the proof of lost or destroyed
thereunder.
will, Section 6 of Rule 77 provides as follows:
Section 1 of said rule provides:
 "Wills proved and allowed in the United States, the facts established by the petitioner, Silvino
or any state or territory thereof, or in foreign Suntay, warrant the legalization of the lost will
country, according to the laws of such state, and the allowance and recording of the will that
territory, or country, may be allowed, filed, and was executed in Amoy, China, is therefore, the
recorded by the proper Court of First Instance subject of this instant motion.
in the Philippines."
A. As to the legalization of the Lost Will. —
Section 2 of the same rule provides: There is no question in the mind of this court
that the original will which Jose B. Suntay,
"When a copy of such will and the allowance deceased executed in the Philippines in the
thereof, duly authenticated, is filed with a year 1929 was lost (Exhibit O, Decision of the
petition for allowance in the Philippines, by the Supreme Court). The evidence adduced by the
executor or other person interested, in the court petitioner during the hearing has established
having jurisdiction, such court shall fix a time through the testimony of Judge Anastacio
and place for the hearing, and cause notice Teodoro and that of Go Toh (an attesting
thereof to be given as in case of an original will witness) that the will was executed by Jose B.
presented for allowance." Suntay, deceased, with all the formalities
required by law. For the purpose of legalizing an
This court has delved deep into the evidence original and existing will, the evidence on record
adduced during the hearing with that is sufficient as to the execution and attesting in
penetrating scrutiny in order to discovery the the manner required by law.
real facts; it had used unsparingly the judicial
scapel; and it has winnowed the evidenced to Section 8 of Rule 77 provides as follows:
separate the grain from the chaff. All the facts
lead to the inevitable conclusion that Jose B. "SEC. 8. Proof when witnesses dead or insane
Suntay, in his sound and disposing mind and or do not reside in the Philippines. — If it
not acting under duress or undue influence, appears at the time fixed for the hearing that the
executed the will which is lost, the draft of which subscribing witnesses are dead or insane, or
is Exhibit B, with all the necessary formalities that none of them resides in the Philippines, the
prescribed by law. He, likewise, executed the court may admit the testimony of other
second will (Exhibit P) in Amoy, China, which witnesses to prove the sanity of the testator,
has been duly probated in Amoy District Court,- and the due execution of the will; and as
a corroborative evidence that the testator really evidence of the execution of the will, may admit
executed the will. Copies of the said wills duly proof of the handwriting of the testator and of
certified and under the seal of the court are the subscribing witnesses, or any of them."
appended hereto, marked Exhibits B and P, and
they form part of this decision. Section 11 of said rule also provides as follows:

In view of the foregoing considerations, the "SEC. 11. Subscribing witnesses produced or
court is of the opinion and so declares that the accounted for where contest. — If the will is
draft of the will (Exhibit B) is, to all legal intents contested, all the subscribing witnesses present
and purposes, and testament of the deceased in the Philippines and not insane, must be
Jose B. Suntay. With costs against the produced and examined, and the death,
oppositor, Federico C. Suntay. absence, or insanity of any of them must be
satisfactorily shown to the court. If all or some
Oppositor Federico C. Suntay filed on May 20, 1948, a of the subscribing witnesses are present in the
motion for new trial and to set aside the decision Philippines, but outside the province where the
rendered on April 19, 1948, to which the petitioner filed will has been filed, their deposition must be
an opposition, followed by a reply filed by the oppositor taken. If all or some of the subscribing
and an answer on the part of the petitioner. Without witnesses produced and examined testify
reopening the case and receiving any new or additional against the due execution of the will, or do not
evidence, the Court of First Instance of Bulacan, on remember having attested to it, or are otherwise
September 29, 1948, promulgated the following of doubtful credibility, the will may be allowed if
resolution setting aside his first decision and disallowing the court is satisfied from the testimony of other
the wills sought to be probated by the petitioner in his witnesses and from all the evidence presented
alternative petition filed on June 18, 1947: that the will was executed and attested in the
manner required by law."
This is a motion for new trial and to set aside the
decision legalizing the will of Jose B. Suntay The three attesting witnesses were Manuel
and allowing and recording another will Lopez, deceased Alberto Barretto and Go Toh.
executed by him in Amoy, China. The last two witnesses are still living; the former
testified against and the latter in favor. In other
By virtue of this motion, this court is constrained words, the attesting witness, Go Toh, only,
to go over the evidence and the law applicable testified in his deposition in favor of the due
thereto with the view of ascertaining whether or execution of the will. Hence, the petitioner
not the motion is well founded. Both parties presented another witness, Judge Anastacio
have presented extensive memoranda in Teodoro, to establish and prove the due
support of their respective contentions. execution of the said will. Ana Suntay was also
presented as a witness in rebuttal evidence.
This court has gone over the evidence The testimony of Go Toh in his deposition as an
conscientiously, and it reiterates its findings of attesting witness, coupled with the testimony of
the same facts in this resolution, whether or not Judge Anastacio Teodoro who was able to
examine the original will that was executed by provisions of the lost will have been clearly and
Jose B. Suntay, deceased, when it was given to distinctly proved by at least two credible
him by Go Toh for the purpose of filing the witnesses? A careful review of the evidence has
petition in court for its legalization, and could revealed that at most the only credible witness
recognize the signatures of the testator as well who testified as to the provisions of the will was
as of the three attesting witnesses on the said Judge Anastacio Teodoro, and yet he testified
original will is sufficient to convince the court on the provisions of the lost will with the draft
that the original will was executed by the (Exhibit B) in his hands while testifying. It may
deceased Jose B. Suntay with all the formalities be granted, however, that with or without the
required by law. The original will, therefore, if it draft of the will (Exhibit B) in his hands, he could
was presented in court to probate would be have testified clearly and distinctly on the
allowed to all legal intents and purposes. But it provisions of the said lost will, because he had
was not the original will that was presented, kept the will in his safe, in his office, for three
because it was lost, but an alleged draft (Exhibit days, after opening it, and he is well versed in
B) of the said original will which does not bear Spanish language in which the will as written.
the signature of the testator and any of the But did the attesting witness Go Toh, testify in
attesting witness. The original will was duly his deposition and prove clearly and distinctly
executed with all the formalities required by law, the provisions of the lost will? He did not, and
but it was unfortunately lost; and the curtain falls he could not have done so even if he tried
for the next setting. because the original will was not read to him nor
by him before or at the signing of the same. It
The Court is now confronted with the was written in Spanish and he did not and does
legalization of the lost will — whether or not the not understand the Spanish language. Neither
draft (Exhibit B) should be admitted as was there any occasion for him to have the
secondary evidence in lieu of the lost will and contents of the said will, after its execution and
allowed to probate. sealing inside the envelope (Exhibit A), read to
him because it was opened only when Judge
Section 6. Rule 77 provides as follows: Teodoro had examined it and then
subsequently snatched from Go Toh. Ana
Suntay on rebuttal did not, likewise, prove
"SEC. 6. Proof of lost or destroyed will —
clearly and distinctly the provisions of the said
Certificate thereupon. — No will shall be proved
lost will because she has not had enough
as a lost will or destroyed will unless the
schooling and she does possess adequate
execution and validity of the same be
knowledge of the Spanish language as shown
established, and the will is proved to have been
by the fact that she had to testify in Tagalog on
in existence at the time of the death of the
the witness standing.
testator, or is shown to have been fraudulently
or accidentally destroyed in the lifetime of the
testator without his knowledge, nor unless its It is evident, therefore, that although the
provisions are clearly and distinctly proved by at petitioner has established the execution and
least two credible witnesses. When a lost will is validity of the lost will, yet he had not proved
proved, the provisions thereof must be distinctly clearly and distinctly the provisions of the will by
stated and certified by the Judge, under the seal at least two credible witnesses.
of the court and the certificate must be filed and
recorded as other wills are filed and recorded." B. As to the Allowance and Recording of the will
(Emphasis Court's) Executed in Amoy, China. — Jose B. Suntay,
while he was residing in China during the
From the above quoted provision of the law, it remaining years of his life, executed also a will,
is clear that the petitioner should not only written in Chinese characters, the translation of
establish the execution and validity of the will, which is marked Exhibit P. It was allowed to
its existence at the time of the death of the probate in the District Court of Amoy, China.
testator or its fraudulent and accidental The question is whether or not the said will
destruction in the lifetime of the testator without should be allowed and recorded in this
his knowledge, but also must prove its jurisdiction.
provisions clearly and distinctly by at least two
credible witnesses. The exact language of the Section 1 of Rule 78 provides as follows:
clause in the above quoted provision of the law
is "nor unless its provisions are clearly and "SEC. 1. Will proved outside Philippines any be
distinctly proved by at least two credible allowed here. — Will proved and allowed in the
witnesses." The legalization of a lost will is not United States, or any state or territory thereof,
so easy, therefore, as that of an original will. or in a foreign country, according to the laws of
The question, therefore, is boiled down to, and such state, territory, or country, may be allowed,
projected on the screen, in a very sharp focus; filed, and recorded by the proper court of First
namely, the execution and validity must be Instance in the Philippines."
established and the provisions must be clearly
and distinctly proved by at least credible Section 2 of the same Rule also provides:
witnesses.
"SEC. 2. Notice of hearing for allowance. —
Granting that the execution and validity of the When a copy of such will and the allowance
lost will have been established through the thereof, duly authenticated, is filed with a
testimony of Judge Anastacio Teodoro and Go petition for allowance in the Philippines by the
Toh, and perhaps superficially by the rebuttal executor or other persons interested, in the
witness, Ana Suntay, does it follow that the Court having jurisdiction, such court shall fix a
time and place for the hearing, and cause notice document 'of a foreign country', it may be
thereof to be given as in case of an original will proved, 'by the original, or by a copy certified by
presented for allowance." the legal keeper thereof, with a certificate, under
the seal of the country or sovereign, that the
Sections 41 and 42 of Rule 123 provides as document is a valid and subsisting document of
follows: such country, and that the copy is duly certified
by the officer having the legal custody of the
"SEC. 41. Proof of Public or official record. — original. (Sec. 313, par. 8)."
An official record or an entry therein, when
admissible for any purpose, may be evidenced In the case of Fluemer vs. Hix, 54 Phil. 610,
by an official publication thereof or by a copy 611, 612, and 613, our Supreme Court said:
attested by the officer having the legal custody
of the record, or by his deputy, and "It is the theory of the petitioner that the alleged
accompanied, if the record is not kept in the will was executed in Elkins, West Virginia, on
Philippines, with a certificate that such officer November 3, 1925, by Hix who had his
has the custody. If the office in which the record residence in that jurisdiction, and that the laws
is kept is within the United States or its territory, of West Virginia govern. To this end, there was
the certificate may be made by a judge of a submitted a copy of section 3868 of Acts 1882,
court of record of the district or political c. 84 as found in West Virginia Code,
subdivision in which the record is kept, Annotated, by Hogg, Charles E., Vol. 2, 1914,
authenticated by the seal of the court, or may p. 1690, and as certified to by the Director of the
be made by any public officer having a seal of National Library. But this was far from
the office and having official duties in the district compliance with the law. The laws of a foreign
or political subdivision in which the record is jurisdiction do not prove themselves in our
kept, authenticated by the seal of his office. If courts. The courts of the Philippine Islands are
the office in which the record is kept is in a not authorized to take judicial notice of the laws
foreign country, the certificate may be made by of the various States of the American Union.
a secretary of embassy or legation, consul Such laws must be proved as facts. (In re Estate
general, consul, vice consul, or consular agent of Johnson (1918), 39 Phil., 156.) Here the
or by any officer in the foreign service of the requirements of the law were not met. There
United States stationed in the foreign country in was not showing that the book from which an
which the record is kept, and authenticated by extract was taken was printed or published
the seal of his office." under the authority of the State of West Virginia,
as provided in section 300 of the Code of Civil
F. "SEC. 42. What attestation of copy must Procedure. Nor was the extract from the law
state. — Whenever a copy of writing is attested attested by the certificate of the officer having
for the purpose of evidence, the attestation charge of the original under the seal of the State
must state, in substance, that the copy is a of West Virginia, as provided in section 301 of
correct copy of the original, or a specific part the Code of Civil Procedure. No evidence was
thereof, as the case may be. The attestation introduced to show that the extract from the
must be under the official seal of the attesting laws of West Virginia was in force at the time
officer, if there be any, or if he be the clerk of a the alleged will was executed.
court having a seal, under the seal of such
court." "It was also necessary for the petitioner to prove
that the testator had his domicile in West
In the case of Yu Changco vs. Tiaoqui, 11 Phil. Virginia and not in the Philippine Islands. The
598, 599, 600, our Supreme Court said: only evidence introduced to establish this fact
consisted of the recitals in the alleged will and
"Section 637 of the Code of Civil Procedure the testimony of the petitioner.
says that will proved and allowed in a foreign
country, according to the laws of such country, "While the appeal was pending submission in
may be allowed, filed, and recorded in the Court this court, the attorney for the appellant
of First Instance of the province in which the presented an unverified petition asking the
testator has real or personal estate on which court to accept as part of the evidence the
such will may operate; but section 638 requires documents attached to the petition. One of
that the proof of the authenticity of a will these documents discloses that a paper writing
executed in a foreign country must be purporting to be the last will and testament of
duly "authenticated". Such authentication, Edward Randolph Hix, deceased, was
considered as a foreign judicial record, is presented for probate on June 8, 1929, to the
prescribed by section 304, which requires the clerk of Randolph County, State of West
attestation of the clerk or of the legal keeper of Virginia, in vacation, and was duly proven by the
the records with the seal of the court annexed, oaths of Dana Vansley and Joseph L. Madden,
if there be a seal, together with a certificate of the subscribing witnesses thereto, and ordered
the chief judge or presiding magistrate that the to be recorded and filed. It was shown by
signature of either of the functionaries attesting another document that in vacation, on June 8,
the will is genuine, and, finally, the certification 1929, the clerk of court of Randolph County,
of the authenticity of the signature of such judge West Virginia, appointed Claude E. Maxwell as
or presiding magistrate, by the ambassador, administrator, cum testamento annexo, of the
minister, consul, vice consul or consular agent estate of Edward Randolph Hix, deceased ...
of the United States in such foreign country. However this may be no attempt has been
And, should the will be considered, from an made to comply with the provisions of sections
administrative point of view, as a mere official 637, 638, and 639 of the Code of Civil
Procedure, for no hearing on the question of the of the record, or by his deputy, and
allowance of a will said to have been proved accompanied, if the record is not kept in the
and allowed in West Virginia has been Philippines, with a certificate that such officer
requested. ... ." has the custody. ... If the office in which the
record is kept is in a foreign country, the
Granting that the will of Jose B. Suntay which certificate may be made by a secretary of
was executed in Amoy, China, was validly done embassy or legation, consul general, consul,
in accordance with the law of the Republic of vice consul, or consular agent or by any officer
China on the matter, is it necessary to prove in in the foreign service of the United States
this jurisdiction the existence of such law in stationed in the foreign country in which the
China as a prerequisite to the allowance and record is kept, and authenticated by the seal of
recording of said will? The answer is in the his office." (Sec. 41 of Rule 123.)
affirmative as enunciated in
Fluemer vs. Hix, supra, and in Yanez de The law of the Republic of China is a public or
Barnuevo vs. Fuster, 29 Phil., 606. In the latter official record and it must be proved in this
case, the Supreme Court said: jurisdiction through the means prescribed by
our Rules of Court. It is, therefore, obvious that
"A foreign law may be proved by the certificate the Chinese Counsel General in the Philippines
of the officer having in charge of the original, who certified as to the existence of such law is
under the seal of the state or country. It may not the officer having the legal custody of the
also be proved by an official copy of the same record, nor is he a deputy of such officer. And,
published under the authority of the particular if the office in which the record is kept is in a
state and purporting to contain such law. (Secs. foreign country, the certificate may be made by
300 and 301, Act No. 190.), (Syllabus.) a secretary of embassy or legation, consul
general, consul, vice consul, or consular agent
The provisions of section 300 and 301 of the or by any officer in the foreign service of the
Code of Civil Procedure (Act No. 190) are as United States stationed in the foreign country in
follows: which the record is kept, and authenticated by
the seal of his office.
"SEC. 300. Printed laws of the State or
Country. — Books printed or published under It is clear, therefore, that the above provisions
the authority of the United States, or one of the of the Rules of Court (Rule 123, sec. 41) not
States of the United States, or a foreign country, having been complied with, the doubt of this
and purporting to contain statutes, codes, or court has been dissipated, and it is of the
other written law of such State or country or opinion and so holds that the certification of the
proved to be commonly admitted in the tribunals Chinese Consul General alone is not
of such State or country an evidence of the admissible as evidence in the jurisdiction.
written law thereof, are admissible in the
Philippine Islands are evidence of such law." The evidence of record is not clear as to
whether Jose B. Suntay, who was born in
"SEC. 301. Attested copy of foreign laws. — A China, but resided in the Philippines for a long
copy of the written law or other public writing of time, has become a Filipino citizen by
any state or country, attested by the certificate naturalization, or he remained a citizen of the
of the officer having charge of the original, Republic of China. The record does not,
under the seal of the state or country, is likewise, show with certainty whether or not he
admissible as evidence of such law or writing." had changed his permanent domicile from the
Philippines to Amoy, China. His change of
permanent domicile could only be inferred. But
The petitioner has presented in evidence the
the question of his permanent domicile pales
certification of the Chinese Consul General,
into insignificance in view of the overtowering
Tsutseng T. Shen, of the existence of the law in
fact that the law of China pertinent to the
China (Exhibit B-3), relative to the execution
allowance and recording of the said will in this
and probate of the will executed by Jose B.
jurisdiction has been satisfactorily established
Suntay in Amoy, China (Exhibit P). Is that
by the petitioner.
evidence admissible, in view of the provisions
of Sections 41 and 42 of the Rules of the Rules
of Court. Is the said certification of the Chinese Both the petitioner and the oppositor have
Consul General in the Philippines a substantial extensively urged in their respective
compliance with the provisions of the above memorandum and in the oral argument in behalf
mentioned section 41 and 42 of our Rules of of the oppositor the question of estoppel. The
Court? consideration of the points raised by them
would open the door to the appreciation of the
intrinsic validity of the provisions of the will
This court has its doubts as to the admissibility
which is not of moment at the present stage of
in evidence of the Chinese Consul General in
the proceeding. While the probate of a will is
the Philippines of the existence of the laws of
conclusive as to the compliance with all formal
Republic of China relative to the execution and
requisites necessary to the lawful execution of
probate of a will executed in China. Such law
the will, such probate does not affect the
may exist in China, but —
intrinsic validity of the provisions of the will. With
respect to the latter the will in governed by the
"An official record or an entry therein, when substantive law relative to descent and
admissible for any purpose, may be evidence distribution. (In re Johnson, 39 Phil., 157).
by an official publication thereof or by a copy
attested by the officer having the legal custody
 IN VIEW OF THE FOREGOING, and upon to avoid the enjoyment of a "premium from the rascality
reconsideration, the previous decision rendered of one whose interests might suggest the destruction of
in this case allowing the will (Exhibit B) and a will."
allowing and recording the foreign will (Exhibit
P) is set aside; and this court is of the opinion Section 1865 of the Code requires that the
and so holds that the said two wills should be, provisions of a lost will must be clearly and
as they are hereby disallowed. Without special distinctly proved by at least two credible
pronouncement as to costs. witnesses before it can be admitted to probate;
but this section must receive a liberal
It is very significant that in the foregoing resolution, the construction (Hook vs. Pratt, 8 Hun. 102-109)
Court of First Instance of Bulacan "reiterates its finding and its spirit is complied with by holding that it
of the same facts in this resolution," and merely applies only to those provisions which affect the
proceeds to pose the sole question "whether or not the disposition of the testator's property and which
facts established by the petitioner, Silvino Suntay, are of the substance of the will.
warrant the legalization of the lost will and allowance
and recording of the will that was executed in Amoy, The allegations of the contents of the will are
China." The somersault executed by the trial court is general, and under ordinary circumstances,
premised on the ground that "although the petitioner would be in sufficient; but the fact alleged, if
has established the execution and validity of the lost proven as alleged, would certainly authorize the
will, yet he has not proved clearly and distinctly the establishment of the will so far as its bequests
provisions of the will by the least two credible are concerned. To require that a copy of the will
witnesses"; and that, assuming that the will of Jose B. or the language of the bequests, in detail,
Suntay executed in Amoy, China, was in accordance should be pleaded, where no copy has been
with the law of the Republic of China, the certification of preserved, and where the memory of the
the Chinese Consul General in the Philippines as the witnesses does not hold the exact words, would
existence of such law is not admissible evidence in this not only deny the substance for mere form, but
jurisdiction. In effect the resolution on the motion for would offer a premium upon the rascality of one
reconsideration promulgated by the trial court, and the whose interests might suggest the destruction
decision of the majority herein, adopt the position that of a will. As said in Anderson vs. Irwin, 101 Ill.
the testimony of Judge Anastacio Teodoro as to the 411: "The instrument in controversy having
provisions of the lost will, while credible and perhaps been destroyed without the fault of the
sufficient in extent, is not corroborated by the witnesses defendant in error ... and there not appearing to
Go Toh and Ana Suntay and, therefore, falls short of the be any copy of it in existence, it would be
requirement in section 6, Rule 77, of the Rules of Court equivalent to denying the complainant relief
that the provisions of the lost will must be "clearly and altogether to require her to prove the very terms
distinctly proved by at least two witnesses." That this in which it was conceived. All that could
requirement was obviously construed, to mean that the reasonably be required of her under the
exact provisions are to be established, may be deduced circumstances could be to show in general
from the following dialogue between his Honor, Judge terms the disposition which the testator made of
Potenciano Pecson, and attorney Teofilo Sison, new his property by the instruments; that it purported
counsel for oppositor Federico C. Suntay, who to be his will and was duly attested by the
appeared for the first time at the ex parte hearing of the requisite number of witnesses." In
oppositor's motion for new trial on September 1, 1949: Allison vs. Allison, 7 Dana 91, it was said in
speaking of the character and extent of proof
COURT: However, Rule 77, Section 6, provides required in such a case:" nor is there any just
in proving a lost will, the provisions of the lost ground to object to the proof because the
will must be distinctly stated and certified by the witnesses have not given the language of the
Judge. will or the substance thereof. They have given
the substance of the different devises as to the
ATTY. TEOFILO SISON: Yes, Your Honor. property or interest devised, and to whom
devised and we would not stop, in the case of a
COURT: That presupposes that the judge could destroyed will, to scan with rigid scrutiny the
only certify to the exact provisions of the will form of the proof, provided we are satisfied of
from the evidence presented. the substance of its provisions."
(Jose vs. Casler 139 Ind. 392, 38 N. E. 812).
ATTY. TEOFILO SISON: That is our contention,
provided that provision is clearly established by The evidence in the case falls short of
two credible witnesses so that the Court could establishing the existence of such a writing,
state that in the decision, we agree, that is the except as it may be presumed, under the maxim
very point. Omnia preasumuntur in odium spoliateris."
There was evidence tending to show that the
second will of Anne Lambie was in the
(t. s. n. 75, Session of Sept. 1, 1948)
possession of Francis Lambie, and that it came
to the hands of the proponents, warranting the
The sound rule, however, as we have found it to be, as inference that it has been suppressed or
to the degree of proof required to establish the contents destroyed. If from this evidence the jury found
of a lost or destroyed will, is that there is sufficient such paper destroyed the law permits the
compliance if two witnesses have substantiated the presumption that it was legally drawn and
provisions affecting the disposition of the testator's executed, notwithstanding the terms of the
properties; and this is especially necessary to prevent statute, which requires the revoking instrument
the "perpetration of fraud by permitting a presumption to be formally executed. If a will be lost,
to supply the suppressed proof," to keep a wrong-doer secondary evidence may be given of its
from utilizing the rule as his "most effective weapon," or
 contents; if suppressed or destroyed, the same versed in Spanish language in which the will was
is true; and, if necessary the law will prevent the written." As a matter of fact, however, it is not true that
perpetration of a fraud by permitting a Judge Teodoro had the draft in question before him
presumption to supply the suppressed proof. while testifying as may be seen from the following
We cannot assent to the proposition that the passages of the transcript:
statute is so right as to be the wrongdoer's most
effective weapons. The misconduct once Q. And, have you read that will which was inside
established to the satisfaction of the jury, it is no this envelope, Exhibit A? — "A. Yes.
hardship to the wrongdoer to say. "Produce the
evidence in your possession, or we will Q. Do you remember more or less the contents
presume that your opponent's contention is of the will?
true." When one deliberately destroys, or
purposely induces another to destroy, a written
ATTY. FERRIN: With our objection, the best
instrument subsequently become a matter of
evidence is original will itself, Your Honor.
judicial inquiry between the spoliator and an
innocent party, the latter will not be required to
make strict proof of the contents of such ATTY. RECTO: We are precisely proving by
instrument in order to establish a right founded means of secondary evidence, the contents of
thereon. Brook, Leg. Max. 576, the will, because according to the Supreme
Preston vs. Preston, 132, Atl. 55, 61. (Re Court, and that is a fact already decided, that
Lambie's Estate, 97 Mich, 55,56 N. W. 225) the will of Jose B. Suntay was lost and that
is res adjudicata.
Judged from the standard set forth in the foregoing
authorities, and bearing in mind that the circumstances COURT: Witness may answer.
of this case lead to the only conclusion that the loss of
the will in question is of course imputable to those WITNESS: I remember the main features of the
whose interests are adverse to the petitioner and the will because as I said I was the one fighting for
widow Lim Billian, we have no hesitancy in holding the the postponement of the hearing of the intestate
view that the dispositions of the properties left by the case because I was asked by Don Alberto
deceased Jose B. Suntay is provided in his will which Barretto to secure the postponement until the
was lost or snatched in the manner recited in the will that was executed by the deceased is sent
decision of this Court in the case of Lim here by the widow from China, with whom we
Billian vs. Suntay, 63 Phil., 798-797, had been more communicated with several letters, and when
than sufficiently proved by the testimony of Judge the will arrived. I had to check the facts as
Anastacio Teodoro, Go Toh, and Ana Suntay, appearing in the will, and examined fully in
supported conclusively by the draft of the lost will connection with the facts alleged in the
presented in evidence as Exhibit "B", and even by the intestate, and there was a striking fact in the
testimony of oppositor Federico C. Suntay himself. intestate that Apolonio Suntay has..

It is to be recalled that the trial Judge, in his first decision ATTY. FERRIN: (Interrupting) May we ask that
of April 19, 1948, made the following express findings the witness answer categorically the questions
with respect to the testimony of Judge Teodoro: "Judge of Atty. Recto, it seems that the answers of the
Anastacio Teodoro testified that he opened the sealed witness are kilometric ...
envelope when it was given to him by Go Toh
preparatory to the presentation of the petition for the ATTY. RECTO: Sometimes the question cannot
probate of the said will. As the lawyer entrusted with that be answered fully unless the witness would
task, he had to examine the will and have it copied to relate and give all the facts.
be reproduced or appended to the petition. He could not
do otherwise if he is worth his salt as a good lawyer. He COURT: The Attorney for the Administrator may
could not perform the stunt of "blind flying" in the judicial move for the striking out of any testimony that is
firmament. Every step must be taken with certainty and not responsive to the question.
precision under any circumstances. He could not have
talked about the attorney's fees with Go Toh, unless he ATTY. FERRIN: That is why, our objection, the
has not examined the will beforehand. And, when he answer is out of the question.
was shown Exhibit B, he did not hesitate in declaring
that it was the exact draft of the will that was inside the
COURT: Atty. Recto may propound another
envelope (Exhibit A), the testimony of Atty. Alberto question.
Barretto to the contrary notwithstanding."
ATTY. RECTO: I heard the witness was saying
We should not forget, in this connection, that in the something and he has not finished the
resolution on the motion for reconsideration the trial sentence, and I want to ask the Court just to
Judge reiterated the findings in his decision, although
allow the witness to finish his sentence.
as regards the testimony of Judge Teodoro admittedly
"the only credible witness who testified as to the
provisions of the will," he observed that Judge Teodoro COURT: You may finish.
had the draft Exhibit "B" in his hands while testifying.
We cannot see any justifying for the observation, WITNESS: "A. There was a sentence, the point
assuming that Judge Teodoro consulted the draft, since I was trying to check first was whether the value
even the trial Judge granted that he "could have of the estate left by the deceased was SIXTY
testified clearly and distinctly on the provisions of the THOUSAND PESOS (P60,000.00) as Apolonio
said lost will, because he had kept the will in his safe, in Suntay made it appear in his petition, and when
his office, for three days, after opening it, and he is well I looked at the original will, I found out that it was
several hundred thousand pesos, several
thousands of pesos, hundreds of pesos, that document appears already attached to this
was very striking fact to me because the petition same testamentary proceedings and already
for intestate was for SIXTY THOUSAND marked as EXHIBIT B, will you please tell the
PESOS (P60,000.00), and I came to know that Court if and for instance on page eight (8) of this
it was worth more than SEVEN HUNDRED document, pagina octavo, it says, there are
THOUSAND (P700,000.00) PESOS. handwritings in pencil, some of which read as
follows: "Los cinco-octavos (5/8) partes
Q. Do you remember, Judge, the disposition of corresponds a mi hijo Emiliano", can you
the will, the main disposition of the will? — "A. recognize whose handwriting is that? — "A.
Yes, because our client were the widow, Maria From my best estimate it is the handwriting of
Natividad Lim Billian, and his son, Silvino, the Don Alberto Barretto.
only son in the second marriage, that was very
important for me to know. Q. About the end of the same page eight
(8) pagina octavo, of the same document
Q. How were the properties distributed Exhibit B, there is also the handwriting in pencil
according to that will?- "A. The properties were which reads: "La otra sexta parte (6.a)
distributed into three (3) parts, one part which corresponde a Bonifacio Lopez", can you
we call legitima corta, were equally distributed recognize that handwriting? — "A. Yes, sir, this
to the ten (10) children, nine (9) in the first is the handwriting of Don Alberto Barretto, and I
marriage, and one (1) in the second marriage wish to call the attention of the Court to compare
with Maria Natividad Lim Billian. The other third, letter "B" which is in capital letter with the
the betterment was given to four (4) children, signature of Don Alberto Barretto in the
Concepcion, and Apolonio getting a quiet envelope, "Alberto Barretto" and stroke
substantial share in the betterment, around identifies one hand as having written those
SIXTY THOUSAND (P60,000.00) for words.
Concepcion, Apolonio the amount of SEVENTY
THOUSAND (70,000,00) PESOS or little over, Q. Will you please go over cursorily this
and then about ONE HUNDRED THOUSAND document, Exhibit B composed of twenty-three
(P100,000.00) PESOS of the betterment in (23) pages and please tell the Court if this
favor of Silvino, the minor of the second document had anything to do with the will which
marriage, and to Jose equal to Concepcion. according to you was contained in the envelope,
Exhibit A? — "A. This is exactly the contents of
Q. So the betterment, as I understand from you the original will which I received and kept in my
went to four (4) children?-"A. Yes. office inside the safe for three (3) days, and I
precisely took special case in the credits left by
Q. Silvino in the second marriage, Concepcion, the deceased, and I remember among them,
Apolonio and Jose in the first marriage? — " A. were the De Leon family, and Sandiko, well
Yes. known to me, and then the disposition of the
estate, divided into three (3) equal parts, and I
noticed that they are the contents of the will
Q. What about the free disposal?-" A. The free
read.
disposal was disposed in favor of the widow,
Maria Natividad Lim Billian and Silvino, his
minor son in equal parts.. His Honor, Judge Pecson, was positive in his first
decision that "the testimony of Judge Anastacio
Teodoro is corroborated by Go Toh, one of the attesting
Q. What about, if you remember, if there was
witnesses, in his deposition (Exhibit D-1)." Yet in setting
something in the will in connection with that
aside his first decision, he remarked that Go Toh's
particular of the usufruct of the widow? — "A. It
testimony did not prove clearly and distinctly the
was somewhat incorporated into the assets of
provision of the lost will, because: "He did not, and he
the estate left by the deceased.
could not have done so even if he tried because the
original will was not read to him nor by him before or at
Q. Do you remember the number of pages of the signing of the same. It was written in Spanish and
which that will consisted? — "A. Twenty-three he did not and does not understand the Spanish
(23) pages. language. Neither was there any occasion for him to
have the contents of the said will, after its execution and
Q. Do you remember if the pages were signed sealing inside the envelope (Exhibit A), read to him,
by the testator? — "A. Yes, sir, it was signed. because it was opened only when Judge Teodoro had
examined it and then subsequently snatched from Go
Q. And the foot of the testament or the end of Toh."
the testament, was it signed by the testator? —
"A. Yes, sir, and the attestation clause was the The later position thus taken by Judge Pecson is
last page signed by the three instrumental palpably inconsistent with the following unequivocal
witnesses, Alberto Barretto, one Chinaman Go statements of Go Toh contained in hid disposition taken
Toh, and Manuel Lopez, my former Justice of in Amoy, China, on April 17, 1938, and in oppositor's
the Peace of Hagonoy. Exhibit "6":

Q. Do you remember if there witnesses signed 26. State what you know of the contents of that
on the different pages of the will? — "A. Yes, sir, will.
they signed with their name signatures.
. . . . Regarding (1) expenditures (2) Philippine
Q. Showing you this document consisting of citizenship; (3) Distribution of estates among
twenty-three (23) pages in Spanish and which children (4) Taking care of grave lot; (5)
guardianship of Silvino Suntay and (6) after 88. In the affirmative case can you repeat more
paying his debts he will have approximately or less what Mr. Suntay said to that man? — ...
720,000 pesos left. This amount will be divided He told him to read it for checking.
into three equal parts of 240,000 pesos each.
The first part is to be divided equally among the 89. State if you know what did the man do with
ten children born by the first and second wives one of those documents given to him. — ... He
and the second part among the three sons took it and read it for checking.
Silvino Suntay, 75,000 approximately; Apolonio
Suntay, 50,000 pesos approximately; Jose 90. What did in turn Mr. Suntay do with the other
Suntay and Concepcion Suntay, 36,000 each one left with him? — ... Jose B. Suntay looked
approximately. The third part is to be divided at the original and checked them.
between Maria Lim Billian and Silvino Suntay;
each will get approximately 110,000 pesos.
91. What was done with those documents later
Silvino Suntay will get a total of 210,000 pesos
on if there was anything done with them? — ...
approximately, Maria Natividad Lim Billian a
After checking, Jose B. Suntay put Exhibit B in
total of 290,000 approximately, and Apolonio
his pocket and had the original signed and
Suntay a total of 80,000 approximately,
executed.
Concepcion Suntay and Jose Suntay will get
60,000 pesos each approximately. The rest of
the children will get approximately 29,000 each. 92. What was done with the testament of Jose
The way of distribution of the property of Jose B. Suntay after it was signed by the testator and
B. Suntay, movable and immovable, and the its witnesses? — ... It was taken away by Jose
outstanding debts to be collected was arranged B. Suntay. (Exhibit D, D-1.)
by Jose B. Suntay.
Q. Did you know the contents of this envelope?
xxx xxx xxx — "A. I knew that it was a will.

78. On the occasion of the execution of the Q. But did you know the provisions of the will?
testament of Jose B. Suntay, state whether or — "A. It is about the distribution of the property
not you say Exhibit B — ... Yes. to the heirs.

79. In the affirmative case, state if you know Q. Did you know how the property was
who had the possession of Exhibit B and the distributed according to the will? — "A. I know
testament the first time you saw them on that that more than P500,000 was for the widow and
occasion. — ... Yes, I know who had possession her son, more than P100,000 for the heirs that
of them. are in the family. (Exhibit "6", p. 28).

80. Can you say whether or not Jose B. Suntay Q. You stated that you were one of the
happened to get those documents later on, on witnesses to the will and that the will was written
that same occasion? — ... He got them after the in Spanish. Was it written in typewriting or in
execution. handwriting of somebody? — "A. That will was
written in typewriting.
81. Please name the person who gave those
documents to Mr. Suntay. — ... Alberto Barretto Q. Did you read the contents of that will, or do
gave the documents to Jose B. Suntay. you know the contents of that will? — A. No, sir,
because I do not know Spanish.
82. Did the person who gave those documents
to Suntay say anything to him (Suntay) at the Q. How do you know that it was the will of Jose
time of giving them? — ... Yes. B. Suntay ? — "A. Because I was one of the
signers and I saw it." (Exhibit "6", p. 19.)
83. If so what was it that he said, if he said any?
— ... He said, "You had better see if you want 22. Do you understand the language in which
any correction." that will was written? — ... I know a little
Spanish.
84. What did Mr. Suntay do after those
documents were given to him? — ... Jose B. 23. Do you talk or write that language? I can
Suntay looked at them and then gave one copy write and talk a little Spanish. (Exhibits D, D-1.)
to Manuel Lopez for checking.
As to Ana Suntay's corroborating testimony, Judge
85. State whether or not Mr. Suntay gave one Pecson aptly made the following findings: "Ana Suntay,
of those documents to another man. — ... Yes. one of the heirs and who would be affected adversely
by the legalization of the will in question, also testified
on rebuttal that she saw the original will in the
86. In the affirmative case, can you say which
possession of Manuel Suntay immediately after the
of the two documents was given and who the
snatching. She read it and she particularly remembers
man was? — ... Yes he gave Exhibit B to
the manner in which the properties were to be
Manuel Lopez.
distributed. Exhibit B was shown to her on the witness
stand and she declared that the provision regarding the
87. State whether or not Mr. Suntay said distribution of the properties in said Exhibit B is the
something to the man to whom he gave one of same as that contained in the original will. Said
those documents. — ... Yes. testimony of Ana Suntay, therefore, belies the
testimony of Atty. Alberto Barretto." And yet in the
resolution on the motion for new trial, the trial Judge had P. Puede usted repetirnos ahora en Castellano
to state that "Ana Suntay on rebuttal did not, likewise, algunas frases o palabras como se hizo la
prove clearly and distinctly the provisions of the said lost distribucion en aquel supuesto testamento? —
will, because she has not had enough schooling and
she does not possess adequate knowledge of the Abogado Recto: Objecion, por falta de base,
Spanish language as shown by the fact that she had to uno puede entender el español y sin embargo
testify in Tagalog on the witness stand." The potent no podra repetir lo que ha leido, y no se sabe
error committed by Judge Pecson in reversing his views todavia si ha estudiado el español bastante
as regards Ana's testimony, is revealed readily in the hasta el punto de poder hablarlo.
following portions of the transcript:
Juzgado: Se estima.
P. Cuantas paginas tenia aquel documento a
que usted se refiere? — "R. Probablemente Abogado Mejia
seria mas de veinte (20) paginas.
P. Usted dijo que estaba puesto en castellano
P. No serian treinta (30) paginas? — "Abogado el supuesto testamento que Vda. leyo, usted
Recto: La testigo ha contestado ya que mas de poso el castellano? — "R. Yo entiendo el
veinte (20). castellano, pero no puedo hablar bien.

Juzgado: Se estima P. Usted estudio el castellano en algun colegio?

— "Rj. Si, señor, En Sta. Catalina.
Abogado Mejia:
P. Cuantos años? — "R. Nuestros estudios no
P. Usted personalmente leyo el documento" — han sido continuous porque mi padre nos
"R. Yo leyo mi hermano en presencia mia. ingresaba en el colegio y despues nos sacaba
para estar afuera, y no era continuo nuestro
P. La pregunta es, si usted personalmente ha estudio.
leido el documento? — " R. Si, lo he visto.
P. Pero en total, como cuantos meses o años
P. No solamente le pregunto a usted si Vd. ha estaba usted en el colegio aprendiendo el
visto el testamento sino si usted ha leido castelano? — "R. Unos cuatro o cinco años.
personalmente el testamento? — "R. Si la parte
de la adjudicacion lo he leido para asegurarme P. Entonces usted puede leer el castellano con
a que porcion corresponde a cada uno de facilidad, señora? — "R. Si, castellano sencillo
nosotros. puedo entender y lo puedo leer.

P. Puede usted repetir poco mas o menos esa P. Usted entiende las preguntas que se le
porcion a que se hacia la distribucion del dirigian aqui en castellano sin interpretacion o
alegado testamento? — "R. Como ya he sin el interprete? — "R. Si, Señor.
declarado, que las propiedades de mi difunto
padre se habian dividido en tres partes, una P. Puede usted contestar en castellano? — "R.
tercera parte se nos adjudica a nosotros diez Bueno, pero como de contestar, por eso quiero
(1) hijos en primeros nupcias y segunda nupcia, que la pregunta se me traduzca antes. asi
la segunda tercera parte los adjudica a la viuda puedo contestar debidamente. (t.s.n. pp. 533-
y a Silvino, y la otra tercera parte se lo adjudica 534.)
a sus hijos como mejora a Silvino, Apolonio,
Concepcion y Jose.
We are really at a loss to understand why, without any
change whatsoever in the evidence, the trial Judge
P. Eso, tal como usted personalmente lo leyo reversed his first decision, particularly when he
en el documento? — "R. Si Señor. announced therein that "it is now incumbent upon this
court to delve into the evidence whether or not Jose B.
P. Quiere usted tener la bondad, señora, de Suntay, deceased, left a will (the draft of which is Exhibit
repetir poco mas o menos las palabras en ese B) and another will which was executed and probated
documento que se distribuia las propiedades in Amoy, China." His action is indeed surprising when
del defundo padre usted como usted relata we take into account the various circumstancial
aqui? "Abogado Recto: Objetamos a la features presently to be stated, that clearly confirm the
pregunta por falta de base, porque elle testimony of Judge Anastacio Teodoro, G. Toh and Ana
solamente se fijo en la parte como se distribuian Suntay, or otherwise constitute visible indicia of
las propiedades pero no ha dicho la testigo que oppositor's desire to frustrate the wishes of his father,
ella lo ha puesto de memoria, ni Vd. ha Jose B. Suntay.
preguntado en que lenguaje estaba escrito el
testamento ... In our opinion the most important piece of evidence in
favor of the petitioner's case is the draft of the lost will,
Juzgado: Se estima. Exhibit "B." Its authenticity cannot be seriously
questioned, because according to the trial Judge
Abogado Mejia: himself, oppositor's own witness, Atty. Alberto Barretto,
admitted it to be "identical in substance and form to the
P. Sabe usted en que lenguaje estaba second draft which he prepared in typewriting." Indeed,
redactado el documento que usted leyo all the "A's" and "B's" in the handwritten insertions of the
personalmente? — "R. En Castellano. draft are very similar to those in Barretto's admittedly
genuine signature on the envelope, Exhibit "A." The
finding of Judge Pecson on the point in his first decision Q. Can you tell the court the share or
(reiterated expressly in the resolution on the motion for participation in the inheritance of Maria
new trial), should control, not only because it is in Natividad Lim Billian according to the will? —
accordance with the evidence but because the
oppositor had failed and did not even attempt to have A. Yes sir, she will inherit, I think, two-thirds
the trial Judge reconsider or reverse his factual (2/3) of the estate, in other words she is the
conclusions. The draft, Exhibit "B," having been most favored in the will, so when they sold that,
positively identified by the witnesses for the petitioner to they sold everything, they are selling everything
be an exact copy of the lost will of Jose B. Suntay, is even the conjugal property. (t. s. n. 228-229.)
therefore conclusive. Oppositor's effort to show that
said draft was never signed in final form, and was The decision of the majority leans heavily on the
thought of merely to deceive petitioner's mother, Lim testimony of Atty. Alberto Barretto, forgetful perhaps of
Billian, and that the will actually executed and put in the the fact that the trial Judge gave no credence to said
envelope, Exhibit "A", provided that the testator's estate witness. It should be repeated that Judge Pecson
would be divided equally among his heirs, as in the case reiterated in the resolution on the motion for new trial all
of intestacy, was necessarily futile because, if this his findings in the first decision. If as Atty. Barretto
allegation is true, the will would not have been testified, Lim Billian was entitled under the will actually
"snatched" from Go Toh — and the loss certainly cannot signed by Jose Suntay only to P10,000.00, in addition
be imputed to the widow Lim Billian or the petitioner; the to properties in China value at P15,000.00, the fees of
snatched will would have been produced to put an end P25,000.00 admittedly asked by him would absorb her
to petitioner's and his mother's claim for greater entire inheritance; and this would normally not be done
inheritance or participation under the lost will; and the by any law practitioner. Upon the other hand, there is
envelope containing the first will providing for equal evidence to the effect that Atty. Barretto might have
shares, would not have been entrusted to the care and become hostile to the petitioner and his mother Lim
custody of the widow Lim Billian. Billian in view of the latter's refusal to agree to the
amount of P25,000.00 and her offer to pay only
It is very noteworthy that out of the nine children of the P100.00. There is also evidence tending to show that
first marriage, only Angel, Jose and Federico Suntay as early as 1942, Atty. Barretto was paid by oppositor
had opposed the probate of the will in question; the rest, Federico Suntay the sum of P16,000.00 which,
namely, Ana, Aurora, Concepcion, Lourdes, Manuel although allegedly for services in the testate
and Emiliano Suntay, having expressly manifested in proceedings, was paid out of the personal funds of said
their answer that they had no opposition thereto, since oppositors to supply Atty. Barretto's needs. This
the petitioner's alternative petition "seeks only to put circumstances perhaps further explains why the latter
into effect the testamentary disposition and wishes of had to support the side of Federico Suntay.
their late father." This attitude is significantly an
indication of the justness of petitioner's claim, because We have quoted in full the decision of this court in the
it would have been to their greater advantage if they had "snatching" case and the first decision of Judge Pecson
sided with oppositor Federico Suntay in his theory of in this case, both in the hope and in the belief (1) that
equal inheritance for all the children of Jose B. Suntay. the first would reveal the manner by which those
Under the lost will or its draft Exhibit "B", each of the adversely affected had planned to prevent the last
Suntay children would receive only some P 25,000.00, wishes of the deceased Jose B. Suntay from being
whereas in case of intestacy or under the alleged will carried on, and (2) that the second, by the facts
providing for equal shares, each of them would receive correctly recited therein and by the force and accuracy
some P100,000.00. And yet the Suntay children other of its logic would amply show the weakness and utter
than Angel, Jose and Federico had chosen to give their lack of foundation of the resolution on the motion for
conformity to the alternative petition in this case. reconsideration. We have set forth at length pertinent
portions of the testimony of various witnesses to
Another unequivocal confirmation of the lost will is the demonstrate more plainly the plausibility of the original
will which Jose B. Suntay executed in Amoy, Fookien, decision of Judge Pecson, and the latter's consequent
China, on January 4, 1931, and probated in Amoy bad judgment in having forced himself to accomplish a
District Court, China, containing virtually the same somersault, a feat which the majority, in my opinion,
provisions as those in the draft Exhibit "B". What better have mistakenly commended. We have found this to be
evidence is there of an man's desire or insistence to one of the cases of this court in which we have had
express his last wishes than the execution of a will occasion to participate, where there can be absolutely
reiterating the same provisions contained in an earlier no doubt as to the result — outright reversal — for
will. Assuming that the Chinese will cannot be probated which, with due respect to the majority opinion, we vote
in the jurisdiction, its probative value as corroborating without hesitancy.
evidence cannot be ignored.
Montemayor and Jugo, JJ., concur.
Oppositor himself had admitted having read the will in
question under which the widow Lim Billian was
favored; and this again in a way goes to corroborate the
evidence for the petitioner as to the contents of the will
sought to be probated.

COURT:

Q. Have you read the supposed will or the

alleged will of your father? — "A. Yes, sir.

COURT:
G.R. No. L-7647 March 27, 1914 lay it down, is absolutely unnecessary under the
law; and the reasons underlying the provisions
DOMINGO CALUYA, petitioner-appellant, of the statute relating to the execution of wills do
vs. not in any sense require such a provision. From
LUCINA DOMINGO, respondent-appellee. the standpoint of language it is an impossibility
to draw from the words of the law the inference
Lucas Paredes for appellant. that the person who signs the name of the
Julio Adiarte for appellee. testator must sign his own name also. The law
requires only three witnesses to a will, not four.
MORELAND, J.:
Nor is such requirement found in any other
branch of the law. The name of a person who is
This is an appeal from a judgment of the Court of First
unable to write may be signed by another, by
Instance of the Province of Ilocos Norte denying the
express direction, to any instrument known to
probate of a will.
the law. There is no necessity whatever, so far
as the validity of the instrument is concerned,
The learned court below based its judgment upon three for the person who writes the name of the
grounds. The first one was that, although the testator principal in the document to sign his pen name
had signed by mark, it nowhere appeared in the will who also. As a matter of policy it may be wise that
had written the signature or that it had been written at he did so inasmuch as it would give such
his request. The second, that the witness Antonino intimation as would enable a person proving the
Pandaraoan could not really have signed the attestation document to demonstrate more readily the
clause because, at the time it was executed, he was execution by the principal. But as a matter of
attending a session of the municipal council of Piddig essential validity of the document, it is
as a member thereof. Third: That as to the other unnecessary. The main thing to be established
witness, Segundino Asis, the will mentioned and in the execution of the will is the signature of the
confirmed a sale of land to him by the testator, and he testator. If that signature is proved, whether it
being thereby an interested party his testimony could be written by himself or by another at his
not be believed. request, it is none the less valid, and the fact of
such signature can be proved as perfectly and
We do not believe that any of the objections are well as completely when the person signing for the
founded and the judgment refusing its probate must, principal omits to sign his own name as it can
therefore, be reversed. when he actually signs. To hold a will invalid for
the lack of the signature of the person signing
Section 618 of the Code of Civil Procedure provides in the name of the principal is, in the particular
part: case, a complete abrogation of the law of wills,
as it rejects and destroys a will which the status
No will, except as provided in the preceding expressly declares is valid.
section, shall be valid to pass any estate, real or
personal, nor charge or affect the same, unless The section above quoted also provides that "the
it be in writing and signed by the testator, or by attestation clause shall state the fact that the testator
the testator's name written by some other signed the will, or caused it to be signed by some other
person in his presence, and by his express person, at his express direction, in the presence of the
direction, and attested and subscribed by three witnesses, and that they attested and subscribed it in
or more credible witnesses in the presence of his presence and in the presence of each other. But the
the testator and of each other. . . . absence of such form of attestation shall not render the
will invalid if it is proven that the will was in fact signed
It is nowhere required that, where the testator is unable and attested as in this section provided."
to write, the fact that his signature was written by some
other person, at his request and express direction, Not only does the attestation clause comply with the
should appear in the body of the will itself. In the case requirements of this section, but it appears clearly
of Barut vs. Cabacungan (21 Phil. Rep., 461, 463) we proved in evidence that the name of the testator was
held the following: signed by another person at his request and under his
direction and in his presence and in the presence of the
From these provisions it is entirely clear that, witnesses to the will. Moreover, as appears from the last
with respect to the validity of the will, it is clause of the section, if the attestation clause is
unimportant whether the person who writes the defective, or even absent, the will is nevertheless valid
name of the testatrix signs his own or not. The provided it is satisfactorily proved that it was in fact
important thing is that it clearly appears that the signed and executed as provided by law.
name of the testatrix was signed at her express
direction in the presence of three witnesses and As to the second objection, namely, that Antonino
that they attested and subscribed it in her Pandaraoan could not have signed the will as a witness
presence and in the presence of each other. thereto, as stated in the attestation clause, because he
That is all the statute requires. It may be wise was attending a meeting of the municipal council of
as a practical matter that the one who signs the Piddig at the time the will is alleged to have been
testator's name signs also his own; but that is executed, we believe this also to be without merit. It
not essential to the validity of the will. Whether does not appear in the evidence of the opposition that
one person or another signed the name of the the witness Pandaraoan was attending a meeting of the
testatrix in this case is absolutely unimportant municipal council of Piddig from something like 10
so far as the validity of her will is concerned. The o'clock till 12.30 o'clock of the day on which the will was
plain wording of the statute shows that the executed ands that the will was executed sometime
requirement laid down by the trial court, if it did between 10 and 12 o'clock. To much weight, however,
can not be given to the testimony relative to the precise Segundino Asis creates such an interest therein as falls
time of the execution of the will. The barrio of Piddig is within the provisions thereof. Indeed, no interest of any
only a short distance from the house in which the will kind was created by the will in favor of Segundino Asis,
was executed and it would have taken but a short time nor did it convey or transfer of any interest to him. It
to cover the distance. the witness Pandaraoan himself simply mentioned a fact already consummated, a sale
testified directly and positively that, after having left the already made. Even if, however, the will had conveyed
meeting of the municipal council, he went to the house an interest to Segundino Asis, it would not have been
of the testator by appointment and there signed the will for that reason void. Only that clause of the will
as stated in the attestation clause. The other witnesses conveying an interest to him would have been void; the
to the will support this declaration. Not only this, but the remainder could have stood and would have stood as a
notary public who drew up the will and who translated it valid testament.
to the testator and who was present at the time of its
execution, declared and testified that the witnesses We are confident from a thorough examination of the
whose names appear upon the will were present at the record that a fair preponderance of the evidence is in
time it was executed by the testator and that they signed favor of the proponents, and there being no legal
the same at his request and in his presence and in the impediment to the probate the court erred in refusing it.
presence of each other. All of the witnesses to the will
unite in declaring that they were there present at the The judgment appealed from is hereby reversed and
time the will was executed and that they signed as the cause remanded to the court whence it came with
witnesses in the presence of the testator and of each instructions to legalize and probate the will in
other. The mere fact that there was a session of the accordance with the petition.
municipal council of Piddig about the same time that the
will was executed is not necessarily conclusive against
the fact that Antonino Pandaraoan was present and
signed as a subscribing witness as he declares.
Mistakes in time are easily made among witnesses who
measure time not so much by clocks or watches as by
the sun. Antonino Pandaraoan testified that the
municipal council began its session about 10 o'clock;
that in order to attend the execution of the will, as he
had agreed with the notary public he would do, he was
obliged to leave the session before it terminated; that
he so left the session, mounted a horse and arrived at
the house of the testator at about 12 o'clock, in time to
take part in the execution of the ill as stated in the
attestation clause.

We do not believe that the clear and positive testimony

of the witnesses to the will and of the notary public is
overcome by the evidence offered in opposition to the
probate.

As to the third ground upon which the court based its

decision; namely, that the will having mentioned and
confirmed a sale of land to Segundino Asis, one of the
witnesses to the will, while not rendering the will entirely
invalid, throws great doubt upon the legality of its
execution and especially the testimony of said witness
relating thereto.

Section 622 provides:

If a person attests the execution of a will, to

whom or to whose wife or husband, or parent,
or child, a beneficial devise, legacy, or interest,
of or affecting real or personal estate, is given
by such will, such devise, legacy, or interest
shall, so far only as concerns such person, or
the wife or husband, or parent or child of such
person, or anyone claiming under such person
or such wife or husband, or parent or child, be
void, unless there are three other competent
witnesses to such will, and such person so
attesting shall be admitted as a witness as if
such devise, legacy, or interest had not been
made or given. But a mere charge on the real
or personal estate of the testator, for the
payment of debts, shall not prevent his creditors
from being competent witnesses to his will.

As will readily be seen on reading this section, nothing

in the will before us relative to the sale of land to