Succession
Cases for Articles 804-814
1. Suroza vs. Honrado (December 19, 1981)
AQUINO, J.:
Should disciplinary action be taken against respondent judge for
having admitted to probate a will, which on its face is void because it is
written in English, a language not known to the illiterate testatrix, and
which is probably a forged will because she and the attesting
witnesses did not appear before the notary as admitted by the notary
himself?
That question arises under the pleadings filed in the testate case and
in the certiorari case in the Court of Appeals which reveal the following
tangled strands of human relationship:
Mauro Suroza, a corporal in the 45th Infantry of the U.S. Army
(Philippine Scouts), Fort McKinley, married Marcelina Salvador in 1923
(p. 150, Spec. Proc. No. 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 CA-G.R. No. 08654-R; p.
148, Rollo of Testate Case showing that Agapito was 5 years old when
Mauro married Marcelina in 1923).
Mauro died in 1942. Marcelina, as a veteran's widow, became a
pensioner of the Federal Government. That explains why on her death
she had accumulated some cash in two banks.
Agapito and Nenita begot a child named Lilia who became a medical
technologist and went abroad. Agapito also became a soldier. He was
disabled and his wife Nenita was appointed as his guardian in 1953
when he was declared an incompetent in Special Proceeding No. 1807
of the Court of First Instance of Rizal, Pasig Branch I (p. 16, Rollo of
CA-G.R. No. 08654-R).
In that connection, it should be noted that a woman named Arsenia de
la Cruz wanted also to be his guardian in another proceeding. Arsenia
tried to prove that Nenita was living separately from Agapito and that
she (Nenita) admitted to Marcelina that she was unfaithful to Agapito
(pp. 61-63, Record of testate case).
Judge Bienvenido A. Tan dismissed the second guardianship
proceeding and confirmed Nenita's appointment as guardian of Agapito
(p. 16, Rollo of CA case). Agapito has been staying in a veteran's
hospital in San Francisco or Palo Alto, California (p. 87, Record).
On a date not indicated in the record, the spouses Antonio Sy and
Hermogena Talan begot a child named Marilyn Sy, who, when a few
days old, was entrusted to Arsenia de la Cruz (apparently a girl friend
of Agapito) and who was later delivered to Marcelina Salvador 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 Suroza. She stayed with Marcelina but was not
legally adopted by Agapito. She married Oscar Medrano and is
residing at 7666 J.B. Roxas Street, Makati, apparently a neighbor of
Marina Paje, a resident of 7668 J.B. Roxas Street.
Marcelina supposedly executed a notarial will in Manila 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. 38-39, CA
Rollo). In that wig, Marcelina bequeathed all her estate to her
supposed granddaughter Marilyn.
Marcelina died on November 15, 1974 at the Veterans Hospital in
Quezon City. At the time of her death, she was a resident of 7374 San
Maximo Street, Olimpia, Makati, Rizal. She owned a 150-square meter
lot and house in that place. She acquired the lot in 1966 (p. 134,
Record of testate case).
On January 13, 1975, Marina Paje, alleged to be a laundrywoman of
Marcelina (P. 97, CA Rollo) and the executrix in her will (the alternate
executrix was Juanita Macaraeg, mother of Oscar, Marilyn's husband),
filed with the Court of First Instance of Rizal, Pasig Branch 25, a
petition for the probate of Marcelina's alleged will. The case was
assigned to Judge Reynaldo P. Honrado.
As there was no opposition, Judge Honrado commissioned his deputy
clerk of court, Evangeline S. Yuipco, to hear the evidence. The
transcripts of the stenographic notes taken at the hearing before the
deputy clerk of court are not in the record.
In an order dated March 31, 1975, Judge Honrado appointed Marina
as administratrix. On the following day, April 1, Judge Honrado issued
two orders directing the Merchants Banking Corporation and the Bank
of America to allow Marina to withdraw the sum of P10,000 from the
savings accounts of Marcelina S. Suroza and Marilyn Suroza and
requiring Corazon Castro, the custodian of the passbooks, to deliver
them to Marina.
Upon motion of Marina, Judge Honrado issued another order dated
April 11, 1975, instructing a deputy sheriff to eject the occupants of the
testatrix's house, among whom was Nenita V. Suroza, and to place
Marina in possession thereof.
That order alerted Nenita to the existence of the testamentary
proceeding for the settlement of Marcelina's estate. She and the other
occupants of the decedent's house filed on April 18 in the said
proceeding a motion to set aside the order of April 11 ejecting them.
They alleged that the decedent's son Agapito was the sole heir of the
deceased, that he has a daughter named Lilia, that Nenita was
Agapito's guardian and that Marilyn was not Agapito's daughter nor the
decedent's granddaughter (pp. 52-68, Record of testate case). Later,
they questioned the probate court's jurisdiction to issue the ejectment
order.
In spite of the fact that Judge Honrado was already apprised that
persons, other than Marilyn, were claiming Marcelina's estate, he
issued on April 23 an order probating her supposed will wherein
Marilyn was the instituted heiress (pp. 74-77, Record).
On April 24, Nenita filed in the testate case an omnibus petition "to set
aside proceedings, admit opposition with counter-petition for
administration and preliminary injunction". Nenita in that motion
reiterated her allegation that Marilyn was a stranger to Marcelina, that
the will was not duly executed and attested, that it was procured by
means of undue influence employed by Marina and Marilyn and that
the thumbmarks of the testatrix were procured by fraud or trick.
Nenita further alleged that the institution of Marilyn as heir is void
because of the preterition of Agapito and that Marina was not qualified
to act as executrix (pp. 83-91, Record).
To that motion was attached an affidavit of Zenaida A. Penaojas the
housemaid of Marcelina, who swore that the alleged will was
falsified (p. 109, Record).
Not content with her motion to set aside the ejectment order (filed on
April 18) and her omnibus motion to set aside the proceedings (filed on
April 24), Nenita filed the next day, April 25, an opposition to the
probate of the will and a counter-petition for letters of administration. In
that opposition, Nenita assailed the due execution of the will and stated
the names and addresses of Marcelina's intestate heirs, her nieces
and nephews (pp. 113-121, Record). Nenita was not aware of the
decree of probate dated April 23, 1975.
To that opposition was attached an affidavit of Dominga Salvador
Teodocio, Marcelina's niece, who swore that Marcelina never executed
a win (pp. 124-125, Record).
Marina in her answer to Nenita's motion to set aside the proceedings
admitted that Marilyn was not Marcelina's granddaughter but was the
daughter of Agapito and Arsenia de la Cruz and that Agapito was not
Marcelina's sonbut merely an anak-anakan who was not legally
adopted (p. 143, Record).
Judge Honrado in his order of July 17, 1975 dismissed Nenita's
counter-petition for the issuance of letters of administration because of
the non-appearance of her counsel at the hearing. She moved for the
reconsideration of that order.
Evangeline branded as a lie Nenita's imputation that she (Evangeline)
prevented Nenita from having access to the record of the testamentary
proceeding. Evangeline was not the custodian of the record.
Evangeline " strongly, vehemently and flatly denied" Nenita's charge
that she (Evangeline) said that the sum of ten thousand pesos was
needed in order that Nenita could get a favorable decision. Evangeline
also denied that she has any knowledge of Nenita's pension from the
Federal Government.

The 1978 complaint against Judge Honorado was brought to attention

In a motion dated December 5, 1975, for the consolidation of all
of this Court in the Court Administrator's memorandum of September
pending incidents, Nenita V. Suroza reiterated her contention that the
25, 1980. The case was referred to Justice Juan A. Sison of the Court
alleged will is void because Marcelina did not appear before the notary
of Appeals for investigation, report and recommendation. He submitted
and because it is written in English which is not known to her (pp. 208-
a report dated October 7, 1981.
209, Record).

On December 14, 1978, Nenita filed in the Court of Appeals against

Judge Honrado in his order of June 8, 1976 "denied" the various
Judge Honrado a petition for certiorari and prohibition wherein she
incidents "raised" by Nenita (p. 284, Record).
prayed that the will, the decree of probate and all the proceedings in
the probate case be declared void.
Instead of appealing from that order and the order probating the wig,
Nenita "filed a case to annul" the probate proceedings (p. 332,
Attached to the petition was the affidavit of Domingo P. Aquino, who
Record). That case, Civil Case No. 24276, Suroza vs. Paje and
notarized the will. He swore that the testatrix and the three attesting
Honrado (p. 398, Record), was also assigned to Judge Honrado. He
witnesses did not appear before him and that he notarized the will "just
dismissed it in his order of February 16, 1977 (pp. 398-402, Record).
to accommodate a brother lawyer on the condition" that said lawyer
would bring to the notary the testatrix and the witnesses but the lawyer
Judge Honrado in his order dated December 22, 1977, after noting that never complied with his commitment.
the executrix had delivered the estate to Marilyn, and that the estate
tax had been paid, closed the testamentary proceeding.
The Court of Appeals dismissed the petition because Nenita's remedy
was an appeal and her failure to do so did not entitle her to resort to
About ten months later, in a verified complaint dated October 12, 1978, the special civil action of certiorari (Suroza vs. Honrado, CA-G.R. No.
filed in this Court, Nenita charged Judge Honrado with having probated SP-08654, May 24, 1981).
the fraudulent will of Marcelina. The complainant reiterated her
contention that the testatrix was illiterate as shown by the fact that she
Relying on that decision, Judge Honrado filed on November 17, 1981 a
affixed her thumbmark to the will and that she did not know English,
motion to dismiss the administrative case for having allegedly become
the language in which the win was written. (In the decree of probate
moot and academic.
Judge Honrado did not make any finding that the will was written in a
language known to the testatrix.)
We hold that disciplinary action should be taken against respondent
judge for his improper disposition of the testate case which might have
Nenita further alleged that Judge Honrado, in spite of his knowledge
resulted in a miscarriage of justice because the decedent's legal heirs
that the testatrix had a son named Agapito (the testatrix's supposed
and not the instituted heiress in the void win should have inherited the
sole compulsory and legal heir), who was preterited in the will, did not
decedent's estate.
take into account the consequences of such a preterition.

A judge may be criminally liable or knowingly rendering an unjust

Nenita disclosed that she talked several times with Judge Honrado and
judgment or interlocutory order or rendering a manifestly unjust
informed him that the testatrix did not know the executrix Marina Paje,
judgment or interlocutory order by reason of inexcusable negligence or
that the beneficiary's real name is Marilyn Sy and that she was not the
ignorance (Arts. 204 to 206, Revised Penal Code).
next of kin of the testatrix.

Administrative action may be taken against a judge of the court of first

Nenita denounced Judge Honrado for having acted corruptly in
instance for serious misconduct or inefficiency ( Sec. 67, Judiciary
allowing Marina and her cohorts to withdraw from various banks the
Law). Misconduct implies malice or a wrongful intent, not a mere error
deposits Marcelina.
of judgment. "For serious misconduct to exist, there must be reliable
evidence showing that the judicial acts complained of were corrupt or
She also denounced Evangeline S. Yuipco, the deputy clerk of court, inspired by an intention to violate the law, or were in persistent
for not giving her access to the record of the probate case by alleging disregard of well-known legal rules" (In relmpeachment of Horrilleno,
that it was useless for Nenita to oppose the probate since Judge 43 Phil. 212, 214-215).
Honrado would not change his decision. Nenita also said that
Evangeline insinuated that if she (Nenita) had ten thousand pesos, the
Inefficiency implies negligence, incompetence, ignorance and
case might be decided in her favor. Evangeline allegedly advised
carelessness. A judge would be inexcusably negligent if he failed to
Nenita to desist from claiming the properties of the testatrix because
observe in the performance of his duties that diligence, prudence and
she (Nenita) had no rights thereto and, should she persist, she might
circumspection which the law requires in the rendition of any public
lose her pension from the Federal Government.
service (In re Climaco, Adm. Case No. 134-J, Jan. 21, 1974, 55 SCRA
107, 119).
Judge Honrado in his brief comment did not deal specifically with the
allegations of the complaint. He merely pointed to the fact that Nenita
In this case, respondent judge, on perusing the will and noting that it
did not appeal from the decree of probate and that in a motion dated
was written in English and was thumbmarked by an obviously illiterate
July 6, 1976 she asked for a thirty day period within which to vacate
testatrix, could have readily perceived that the will is void.
the house of the testatrix.

In the opening paragraph of the will, it was stated that English was a
Evangeline S. Yuipco in her affidavit said that she never talked with
language "understood and known" to the testatrix. But in its concluding
Nenita and that the latter did not mention Evangeline in her letter dated
paragraph, it was stated that the will was read to the testatrix "and
September 11, 1978 to President Marcos.
translated into Filipino language". (p. 16, Record of testate case). That
could only mean that the will was written in a language not known to
the illiterate testatrix and, therefore, it is void because of the mandatory
provision of article 804 of the Civil Code that every will must be
executed in a language or dialect known to the testator. Thus, a will
written in English, which was not known to the Igorot testator, is void
and was disallowed (Acop vs. Piraso, 52 Phil. 660).
The hasty preparation of the will is shown in the attestation clause and
notarial acknowledgment where Marcelina Salvador Suroza is
repeatedly referred to as the "testator" instead of "testatrix".
Had respondent judge been careful and observant, he could have
noted not only the anomaly as to the language of the will but also that
there was something wrong in instituting the supposed granddaughter
as sole heiress and giving nothing at all to her supposed father who
was still alive.
Furthermore, after the hearing conducted by respondent deputy clerk
of court, respondent judge could have noticed that the notary was not
presented as a witness.
In spite of the absence of an opposition, respondent judge should have
personally conducted the hearing on the probate of the will so that he
could have ascertained whether the will was validly executed.
Under the circumstances, we find his negligence and dereliction of
duty to be inexcusable.
WHEREFORE, for inefficiency in handling the testate case of
Marcelina S. Suroza, a fine equivalent to his salary for one month is
imposed on respondent judge (his compulsory retirement falls on
December 25, 1981).
The case against respondent Yuipco has become moot and academic
because she is no longer employed in the judiciary. Since September
1, 1980 she has been assistant city fiscal of Surigao City. She is
beyond this Court's disciplinary jurisdiction (Peralta vs. Firm Adm.
Matter No. 2044-CFI November 21, 1980, 101 SCRA 225).
SO ORDERED.
2. Abangan vs. Abangan (November 12, 1919)
AVANCEÑA, J.:
On September 19, 1917, the Court of First Instance of Cebu admitted
to probate Ana Abangan's will executed July, 1916. From this decision
the opponent's appealed.
Said document, duly probated as Ana Abangan's will, consists of two
sheets, the first of which contains all of the disposition of the testatrix,
duly signed at the bottom by Martin Montalban (in the name and under
the direction of the testatrix) and by three witnesses. The following
sheet contains only the attestation clause duly signed at the bottom by
the three instrumental witnesses. Neither of these sheets is signed on
the left margin by the testatrix and the three witnesses, nor numbered
by letters; and these omissions, according to appellants' contention,
are defects whereby the probate of the will should have been denied.
We are of the opinion that the will was duly admitted to probate.
In requiring that each and every sheet of the will should also be signed
on the left margin by the testator and three witnesses in the presence
of each other, Act No. 2645 (which is the one applicable in the case)
evidently has for its object (referring to the body of the will itself) to
avoid the substitution of any of said sheets, thereby changing the
testator's dispositions. But when these dispositions are wholly written
on only one sheet signed at the bottom by the testator and three
witnesses (as the instant case), their signatures on the left margin of
said sheet would be completely purposeless. In requiring this signature
on the margin, the statute took into consideration, undoubtedly, the
case of a will written on several sheets and must have referred to the
sheets which the testator and the witnesses do not have to sign at the
bottom. A different interpretation would assume that the statute
requires that this sheet, already signed at the bottom, be signed twice.
We cannot attribute to the statute such an intention. As these
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 will are written on one sheet only, the object of the statute
disappears because the removal of this single sheet, although
unnumbered, cannot be hidden.
What has been said is also applicable to the attestation clause.
Wherefore, without considering whether or not this clause is an
essential part of the will, we hold that in the one accompanying the will
in question, the signatures of the testatrix and of the three witnesses
on 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 latter does not
attest, but executes, the will.
Synthesizing our opinion, we hold that in a will consisting of two sheets
the first of which contains all the testamentary dispositions and is
signed at the bottom by the testator and three witnesses and the
second contains only the attestation clause and is signed also at the
bottom by the three witnesses, it is not necessary that both sheets be
further signed on their margins by the testator and the witnesses, or be
paged.
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 primordal 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 frustative of the testator's
last will, must be disregarded. lawphil.net
As another ground for this appeal, it is alleged the records do not show
that the testarix knew the dialect in which the will is written. But the
circumstance appearing in the will itself that same was executed in the
city of Cebu and in the dialect of this locality where the testatrix was a
neighbor is enough, in the absence of any proof to the contrary, to
presume that she knew this dialect in which this will is written.
For the foregoing considerations, the judgment appealed from is
hereby affirmed with costs against the appellants. So ordered.
3. Gonzales vs. Laurel (January 15, 1923)
ROMUALDEZ, J.:
By an order dated December 16, 1921, the Court of First Instance of
Batangas allowed the document, Exhibit A, to probate as the last will
and testament of the deceased Maria Tapia, thus granting the petition
of Primitivo L. Gonzalez and overruling the opposition presented by
Jovita Laurel.chanroblesvirtualawlibrary chanrobles virtual law library
Jovita Laurel now appeals to this court from that ruling of the court The order appealed from is affirmed, with the costs against the
below, alleging that court erred: appellant. So ordered.

1. In Holding that Exhibit A, the supposed will of the deceased Maria

Tapia y Castillo, was executed with the solemnities prescribed by the
law, notwithstanding that there was no proof of the dialect known by
the said deceased and of the fact that it was the same in which said
Exhibit A was written.chanroblesvirtualawlibrary chanrobles virtual law
library

2. In not holding that the signatures of Maria Tapia appearing in said

Exhibit A had been obtained through deceipt, surprise, fraud, and in an
illegal and improper manner.chanroblesvirtualawlibrary chanrobles
virtual law library

3. In not finding that said Exhibit A was obtained through unlawful

pressure, influence and machinations of the applicant, Primitivo L.
Gonzalez, one of the legatees, in connivance with Attorney Modesto
Castillo.chanroblesvirtualawlibrary chanrobles virtual law library

4. In not finding that the deceased Maria Tapia was physically and
mentally incapacitated at the time she is said to have executed Exhibit
A.chanroblesvirtualawlibrary chanrobles virtual law library

5. In declaring said Exhibit A valid and authentic and allowing it to

probate as the will and testament of the deceased Maria Tapia y
Castillo.

Concerning the first error assigned, it appears that the deceased Maria
Tapia was a resident of the Province of Batangas, a Tagalog region,
where said deceased had real properties for several years. It also
appears that she requested Modesto Castillo to draw her will in
Tagalog. From the record taken as a whole, a presumption arises that
said Maria Tapia knew the Tagalog dialect, which presumption is now
conclusive for not having been overthrown nor
rebutted.chanroblesvirtualawlibrary chanrobles virtual law library

The three following errors have reference to the question whether or

not the testatrix acted voluntarily and with full knowledge in executing
and signing the will. The preponderance of evidence in this respect is
that said document was executed and signed by Maria Tapia
voluntarily and with full knowledge, without fraud, deceit, surprise, or
undue influence or machinations of anybody, she being then mentally
capacitated and free. Such is the fact established by the evidence,
which we have carefully
examined.chanroblesvirtualawlibrary chanrobles virtual law library

In connection with the evidence, our attention was called to an

irreconcilable conflict between the transcript of an answer of the
witness Primitivo L. Gonzalez, presented by the appellant as "Annex 1"
to his motion filed in this court (fol. 16 of the Rollo), and the official
transcript, in that while said answer is " Yes, sir," according to the
transcript of the appellant, it is " Certainly, that is not true," according to
the official transcript of the stenographic notes attached to the record.
But it is to be noted that at the continuation of the hearing held on a
subsequent date, in which said witness Primitivo L. Gonzalez was
examined on this contradiction, he said in the course of the rebuttal
evidence of the applicant: " No, sir. I did not answer in that way. I did
not take her hand to make her sign. I did not by any means answer
that question to that effect. I very well remember that fact, because it
affects much the probate of the will." (Fols. 56 and 57 of transcript and
documentary evidence.) chanrobles virtual law library

It appearing from the record that the document Exhibit A is the will of
the deceased Maria Tapia, executed with all the formalities and
solemnities required by the law, the trial court did not commit any error
in admitting it to probate.chanroblesvirtualawlibrary chanrobles virtual
law library

For the purposes of this decision, we deem it unnecessary to pass

upon the question raised by the appellee as to whether or not this
appeal was perfected within the time fixed by the
law.chanroblesvirtualawlibrary chanrobles virtual law library

4. Matias vs. Salud (June 23, 1958)
In re Probate of the Will of Gabina Raquel, deceased.
REYES, J.B.L., J.:
Appeal from an order of the Court of First Instance of Cavite (issued in
its Special Proceedings No. 5253 on February 10, 1956) denying the
probate of the purported will of the late Gabina Raquel.
Admittedly the deceased left no ascendants or descendants, and
according to the proponents she executed the testamentary document
on January 27, 1950, in the City of Cavite, in the presence of Modesta
Gonzales, Felipa Samala, and Lourdes Samonte, who signed as
instrumental witnesses, and of attorney Ricardo Agbunag, who
prepared the instrument.
The document in question appears to be composed of three pages. On
the lower half of the second page, preceding the attestation clause
appears the signature “Gabina Raquel” which is apparently of admitted
authenticity. Alongside it is a smudge in violet ink, with blurred ridge
lines, claimed by the proponents to be a thumbmark affixed by the
testatrix. On the third page, at the end of the attestation clause appear
the signatures appearing on the left margin of each page; and on the
upper part of each page’s left margin appears a violet ink smudge
similar to the one previously described, accompanied by the written
words “Gabina Raquel” and underneath said name “by Lourdes
Samonte.”
In the purported testament, most of the properties of the testatrix
(appraised at over Php 160,000.00) are bequeathed to her niece Aurea
Matias, “in recompense for the services rendered to me for more than
30 years;” some legacies are made o her other nephews and nieces
surnamed Salud and Matias; Aurea Matias is appointed executrix
without bond. Below the signature Gabina Raquel set at the foot of the
will proper, is an attestation clause in the Spanish language (like the
will itself) and reading as follows:
The testamentary
capacity of the testatrix Gabina Raquel despite her 90 years of age
and her disease (herpes zoster), is concealed. It is also undisputed
that she mastered Spanish (the language in which the document is
drawn) and that she could sign her name.
The proponent’s evidence is to the effect that the deceased instructed
attorney Agbunag to draft her will; that it was brought to her in the
morning of January 27, 1950; that she had the witnesses summoned
and received them in the “ante sala” of her house; that when the
witnesses were seated around a table with her and attorney Agbunag,
the will was read by the latter; that Gabina Raquel manifested
conformity thereto and thumbmarked the foot of the document and the
left margin of each page. Allegedly upon Agbunag’s insistence, she
attempted to sign with his fountain pen, but was only able to affix the
signature at the end of the testamentary dispositions (in the lower half
of page two) because immediately after, she dropped the pen,
grasping her right shoulder and complaining of pain. After 20 minutes,
Attorney Agbunag, seeing that Gabina Raquel could not proceed,
instructed Lourdes Samonte to write “Gabina Raquel by Lourdes
Samonte” next to each thumbmark, and thereafter witnesses Lourdes
Samonte, Felipa Samala and Modesta Gonzales signed, in that order,
at the foot of the attestation clause and at the left margin of each page.
It is to be noted that witnesses Modesta Gonzales, a 64-year old
woman did not testify, as she was found to be suffering from high
blood pressure, and proponent’s expert evidence was to the effect that
her memory was impaired and unusual excitement might cost her life.
The probate having been opposed by Basilia Salud, a niece of Gabina
Raquel, the case was set for trial. After hearing, Judge Primitivo
Gonzales of the Court of First Instance of Cavite rendered judgment
upholding the contentions of the oppositor and denied the document’s
admission to probate, principally on the following grounds:
1. That the attestation clause did not state that the
testatrix and the witnesses signed each and every
page of the will; and while the left margins of each
page exhibit the words “Gabina Raquel by
Lourdes Samonte,” the attestation does not
express that Lourdes was expressly directed to
sign for the testatrix;
2. That the proponent did not adequately explain the
non-production of witness Modesta Gonzales,
contrary to sec. 11, Rule 77 of the Rules of Court;
3. That the alleged signing and thummarking by the
deceased was not done in the presence of the
witnesses, nor did the latter sign in the presence
of Gabina Raquel;
4. That fraud and bad faith attended the execution of
the will.
From the adverse decision of the trial court, the proponent appealed
directly to this Court, because the value of the properties involved in
the litigation exceeded Php 50,000.00.
The trial court refused credence to the evidence for the proponents on
the basis of the expert testimony of Captain Jose Fernandez of the
Philippine Constabulary’s
Criminal Laboratory, to the
effect that (1) the
fingerprints appearing at
the end and let margins of
the will were impressed
over the name of the
testatrix, and after the
name was written,
contrary to what the
proponent’s witnesses
asserted; (2) that the
words “Gabina Raquel by
Lourdes Samonte” on the
upper left hand margin of
page two of the wil were
falsified and appear to
have been written over a previous tracing; (3) that the person who
wrote “Gabina Raquel by Lourdes Samonte” is different from the one
who wrote “Lourdes Samonte” as signature of an attesting witness; (4)
that the signature “Lourdes Samonte” on the left margin of page 3 of
the testament was written only after that of Felipa Samala when the
testimony for the proponent was that they were written in the reverse
order; and (5) that the pen used in signing “Gabina Raquel” at the food
of the will had separated nibs, while the other signatures in the
document were written with a round point pen, again contrary to the
contention for the proponent that only one pen was used.
After careful consideration of the testimony on record, we are of the
opinion that the facts adverted to by the expert for the contestant do
not clearly support the conclusions drawn by him. Thus, his assertion
that the fingerprints were affixed after writing the name of the testatrix
appears to be an inference drawn from the fact that the ink of the
writing failed to spread along the ridge lines of the fingerprints. This
conclusion obviously failed to take into account the fact that the
evidence is that some 10 or 20 minutes elapsed between the affixing of
the fingerprints and the writing of the marginal signatures, due to the
fact that they were not written until after a long wait for the testatrix’s
attack of paint to subside. There was sufficient time for the fingerprint
(which was made in rubber stamp ink) to dry, and recognized
authorities on the matter point out that “ink lines over rubber stamps
will spread out if the stamp is not dry”; and “if the stamp impression is
allowed to dry thoroughly before the writing is written over it, the ink will
not run out as it does on a damp ink line”. To such effect, the only
composition of the rubber stamp ink no doubt contributes. Thus, while
the spreading out or running out of the writing ink along the stamping
ink lines proves that the writing was made later, the absence of spread
does not prove that stamping ink lines were made after the writing was
done.
As to the alleged forgery of Samonte’s signature in page 3, the lighter
shade of the underlying characters strongly indicates that the
overwriting was made to correct ink failure or other imperfection in the
first writing. The expert’s opinion is also discredited by the fact that
Samonte being available to the proponent (since she testified in favor
of the will), there would be no sense in forging Samonte’s signature,
when an authentic one was at proponent’s disposal all the time. And
assuming it to be true that in page 3 of the will Exh. “D”, Samonte
signed after Samala, while in the other pages she had signed ahead,
such occasional departure from the order usually followed does not
signify that the execution of the testament was in any way abnormal or
fraudulent. As to the alleged use of two different pens, expert
Fernandez’ conclusions are backed more by opinion than by facts,
besides being contradicted by expert Espinosa, and the proponent’s
other witnesses.
The basis for the conclusions of expert Fernandez, who admitted
having been engaged on a contingent basis, not being satisfactorily
established and his testimony being contradicted by the two witnesses
to the will and the expert for the defense, the lower court erred in
considering that the preponderance of the evidence lay with
contestants.
“We do not venture to impute bias to the experts introduced
during the trial, but we hasten to state that the positive
testimony of the three attesting witnesses ought to prevail
over the expert opinions which cannot be mathematically
precise but which on the contrary, are ‘subject to inherent
infirmities’.x x x”
“Speculations on these matters should give way to the
positive declarations of the attesting witnesses. The law
impliedly recognizes the almost conclusive weight of the
testimony of attesting witnesses when it provides that ‘if the
will is contested, all the subscribing witnesses present in the
Philippines and not insane, must be produced and
examined, and the death, absence, or insanity or any of
them must be satisfactorily shown to the court.’ (Section 11,
Rule 77, Rules of Court.)” (Roxas vs. Roxas).
We are aware that the bequest of the greater portion of decedent’s
estate in favor of proponent Aurea Matias is contained in the first page
of the contested will, while the only authentic signature of the
deceased appeared in the second page; but the appointment of
proponent as executrix of the will without bon (con relevacion de
fianza) appearing in the very same page (page 2) fully bespeaks the
affection of the testatrix for the proponent, who had lived with the
deceased, helped and served her for 30 years, and morally confirms
the contested bequest.
The court below likewise held against the proponent that fact that the
subscribing witnesses Modesta Gonzalez was not a witness; claiming
that such failure was a violation of Sec. 11, Rule 77 of the Rules of
Court. But while Modesta Gonzalez was not placed on the stand, the
proponent made no secret of her whereabouts, nor of the reason why
she was not asked to testify; the record shows that both Dr. Bellaflor
and Dr. Sanchez agreed that Gonzales was suffering from
hypertension, that she was in the danger zone, and might collapse and
die as a consequence of a little excitement on her part. The trial court,
having expressly made of record that “it would not like to assume
responsibility for whatever might happen to this woman”, could not
logically hold proponent to account for not risking Modesta’s death. At
any rate, contestants were free to call her as their own witness, had
they felt justified in so doing; so that no unfavorable inference can be
drawn from the fact that Modesta Gonzalez was not called by the
proponent to the witness stand.
Finally, the contestant urges that the fingermark of the testatrix cannot
be regarded as her valid signature since it does not show distinct
identifying ridge lines; and hence, that the attestation clause,
transcribed earlier in this opinion, should be held defective because it
fails to state that Lourdes Samonte signed for the testator. This Court
has repeatedly held that the legal requisite that the will should be
signed by the testator is satisfied by a thumbprint or other mark affixed
by him; and that where such mark is affixed by the decedent, it is
unnecessary to state in the attestation clause that another person
wrote the testator’s name at his request. While in some of these cases
the signing by mark was described in the will or in the attestation
clause, it does not appear that the Court ever held that the absence of
such description is a fatal defect.
Appellant relies on the case of Garcia vs. Lacuesta, G.R. L-4067, Nov.
29, 1951, wherein this Court denied probate holding that a will signed
with a cross written after the testator’s name is not a sufficient
signature. But in that case no showing was made that the cross mark
was the testator’s habitual signature nor was any explanation given
why he should use a cross when he knew how to sign. In the case now
before us, it was shown that the herpes zoster that afflicted the right
arm and shoulder of testatrix made writing a difficult and painful act, to
the extent that, after writing one signature on the second page, she
dropped the pen because of an attack of pain that lasted many minutes
and evidently discourage attempts to sign.
As to the clarity of the ridge impressions, it is so dependent on aleatory
circumstances (consistency of the ink, overinking, slipping of the finger,
etc.) as to require a dexterity that can be expected of very few persons;
and we do not believe testators should be required to possess the skill
of trained officers. It is to be conceded that where a testator employs
an unfamiliar way of signing, and both the attestation clause and the
will are silent on the matter, such silence is a factor to be considered
against the authenticity of the testament; but the failure to describe the
unusual signature by itself alone is not sufficient to refuse probate
when the evidence for the proponent fully satisfies the court (as it does
satisfy us in this case) that the will was executed and witnessed as
required by law.
WHEREFORE, the judgment appealed from is reversed, and the
document Exh. “D” ordered admitted to probate. Let the records be
returned to the court of origin for further proceedings in accordance
with this opinion. Costs against appellees.
So Ordered.
5. Garcia vs. Lacuesta (November 29, 1951)
PARAS, C.J.:
This is an appeal from a decision of the Court of 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:
We, the undersigned, by these presents to declare that the foregoing
testament of Antero 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 thereof. Page three the continuation of this
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
signature of Atty. Florentino Javier is a surplusage. Petitioner's theory
is that the cross is as much a signature as a thumbmark, the latter
having been held sufficient by this Court in the cases of De
Gala vs. Gonzales and Ona, 53 Phil., 104; Dolar vs. Diancin, 55 Phil.,
479; Payad vs. Tolentino, 62 Phil., 848; Neyra vs. Neyra, 76 Phil., 296
and Lopez vs. Liboro, 81 Phil., 429.
It is not here pretended that the cross appearing on the will is the usual
signature of Antero Mercado or even one of the ways by which he
signed his name. After 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 trustworthiness of a
thumbmark.
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 presence of the witnesses, and by the latter in the
presence of the testator and of each other.
Wherefore, the appealed decision is hereby affirmed, with against the
petitioner. So ordered.
6. Yap Tua vs. Yap Ca Kuan (September 1, 1914)
JOHNSON, J.:
It appears from the record that on the 23d day of August, 1909, one
Perfecto Gabriel, representing the petitioner, Yap Tua, presented a
petition in the Court of First Instance of the city of Manila, asking that
the will of Tomasa Elizaga Yap Caong be admitted to probate, as the
last will and testament of Tomasa Elizaga Yap Caong, deceased. It
appears that the said Tomasa Elizaga Yap Caong died in the city of
Manila on the 11th day of August, 1909. Accompanying said petition
and attached thereto was the alleged will of the deceased. It appears
that the will was signed by the deceased, as well as Anselmo Zacarias,
Severo Tabora, and Timoteo Paez.
Said petition, after due notice was given, was brought on for hearing
on the 18th day of September, 1909. Timoteo Paez declared that he
was 48 years of age; that he had known the said Tomasa Elizaga Yap
Caong; that she had died on the 11th day of August, 1909; that before
her death she had executed a last will and testament; that he was
present at the time of the execution of the same; that he had signed
the will as a witness; that Anselmo Zacarias and Severo Tabora had
also signed said will as witnesses and that they had signed the will in
the presence of the deceased.
Pablo Agustin also declared as a witness and said that he was 40
years of age; that he knew Tomasa Elizaga Yap Caong during her
lifetime; that she died on the 11th day of August, 1909, in the city of
Manila; that before her death she had executed a last will and
testament; that he was present at the time said last will was executed;
that there were also present Timoteo Paez and Severo Tabora and a
person called Anselmo; that the said Tomasa Elizaga Yap Caong
signed the will in the presence of the witnesses; that he had seen her
sign the will with his own eyes; that the witnesses had signed the will in
the presence of the said Tomasa Elizaga Yap Caong and in the
presence of each other; that the said Tomasa Elizaga Yap Caong
signed the will voluntarily, and in his judgment, she was in the
possession of her faculties; that there were no threats or intimidation
used to induce her to sign the will; that she signed it voluntarily.
No further witnesses were called and there was no further opposition
presented to the legalization of the said will.
After hearing the foregoing witnesses, the Honorable A. S. Crossfield,
judge, on the 29th day of September, 1909, ordered that the last will
and testament of Tomasa Elizaga Yap Caong be allowed and admitted
to probate. The will was attached to the record and marked Exhibit A.
The court further ordered that one Yap Tua be appointed as executor
of the will, upon the giving of a bond, the amount of which was to be
fixed later.
From the record it appears that no further proceedings were had until
the 28th of February, 1910, when Yap Ca Kuan and Yap Ca Llu
appeared and presented a petition, alleging that they were interested
in the matters of the said will and desired to intervene and asked that a
guardian ad litem be appointed to represent them in the cause.
On the 1st day of March, 1910, the court appointed Gabriel La O as
guardian ad litem of said parties. Gabriel La O accepted said
appointment, took the oath of office and entered upon the performance
of his duties as guardian ad litem of said parties. On the 2d day of
March, 1910, the said Gabriel La O appeared in court and presented a
motion in which he alleged, in substance:
First. That the will dated the 11th day of August, 1909, and admitted to
probate by order of the court on the 29th day of September, 1909, was
null, for the following reasons:
(a) Because the same had not been authorized nor signed by the
witnesses as the law prescribes.
(b) Because at the time of the execution of the will, the said Tomasa
Elizaga Yap Caong was not then mentally capacitated to execute the
same, due to her sickness.
(c) Because her signature to the will had been obtained through fraud
and illegal influence upon the part of persons who were to receive a
benefit from the same, and because the said Tomasa Elizaga Yap
Caong had no intention of executing the same.
Second. That before the execution of the said will, which they alleged
to be null, the said Tomasa Elizaga Yap Caong had executed another
will, with all the formalities required by law, upon the 6th day of August,
1909.
Third. That the said Yap Ca Kuan and Yap Ca Llu were minors and
that, even though they had been negligent in presenting their
opposition to the legalization of the will, said negligence was
excusable, on account of their age.
Upon the foregoing facts the court was requested to annul and set
aside the order of the 29th day of September, 1909, and to grant to
said minors an opportunity to present new proof relating to the due
execution of said will. Said petition was based upon the provisions of
section 113 of the Code of Procedure in Civil Actions.
While it is not clear from the record, apparently the said minors in their
petition for a new trial, attached to said petition the alleged will of
August 6, 1909, of the said Tomasa Elizaga Yap Caong, and the
affidavits of Severo Tabora, Clotilde and Cornelia Serrano.
Upon the 10th day of March, 1910, upon the hearing of said motion for
a rehearing, the Honorable A. S. Crossfield, judge, granted said motion
and ordered that the rehearing should take place upon the 18th day of
March, 1910, and directed that notice should be given to the petitioners
of said rehearing and to all other persons interested in the will. At the
rehearing a number of witnesses were examined.
It will be remembered that one of the grounds upon which the new trial
was requested was that the deceased, Tomasa Elizaga Yap Caong,
had not signed the will (Exhibit A) of the 11th of August, 1909; that in
support of that allegation, the protestants, during the rehearing,
presented a witness called Tomas Puzon. Puzon testified that he was
a professor and an expert in handwriting, and upon being shown the
will (of August 11, 1909) Exhibit A, testified that the name and surname
on Exhibit A, in his judgment were written by two different hands,
though the given name is the same as that upon Exhibit 1 (the will of
August 6, 1909), because he found in the name "Tomasa" on Exhibit A
a similarity in the tracing to the "Tomasa" in Exhibit 1; that comparing
the surname on Exhibit A with the surname on Exhibit 1 he found that
the character of the writing was thoroughly distinguished and different
by the tracing and by the direction of the letters in the said two exhibits;
that from his experience and observation he believed that the name
"Tomasa" and "Yap Caong," appearing in the signature on Exhibit A
were written by different person.
Puzon, being cross-examined with reference to his capacity as an
expert in handwriting, testified that while he was a student in the
Ateneo de Manila, he had studied penmanship; that he could not tell
exactly when that was, except that he had concluded his course in the
year 1882; that since that time he had been a telegraph operator for
seventeen years and that he had acted as an expert in hand- writing in
the courts in the provinces.
Gabriel La O was called as a witness during the rehearing and testified
that he had drawn the will of the 6th of August, 1909, at the request of
Tomasa Elizaga Yap Caong; that it was drawn in accordance with her
request and under her directions; that she had signed it; that the same
had been signed by three witnesses in her presence and in the
presence of each other; that the will was written in her house; that she
was sick and was lying in her bed, but that she sat up to sign the will;
that she signed the will with great difficulty; that she was signed in her
right mind.
The said Severo Tabora was also called as a witness again during the
rehearing. He testified that he knew Tomasa Elizaga Yap Caong
during her lifetime; that she was dead; that his signature as a witness
to Exhibit A (the will of August 11, 1909) was placed there by him; that
the deceased, Tomasa Elizaga Yap Caong, became familiar with the
contents of the will because she signed it before he (the witness) did;
that he did not know whether anybody there told her to sign the will or
not; that he signed two bills; that he did not know La O; that he did not
believe that Tomasa had signed the will (Exhibit A) before he arrived at
the house; that he was not sure that he had seen Tomasa Elizaga Yap
Caong sign Exhibit A because there were many people and there was
a screen at the door and he could not see; that he was called a a
witness to sign the second will and was told by the people there that it
was the same as the first; that the will (Exhibit A) was on a table, far
from the patient, in the house but outside the room where the patient
was; that the will was signed by Paez and himself; that Anselmo
Zacarias was there; that he was not sure whether Anselmo Zacarias
signed the will or not; that he was not sure whether Tomasa Elizaga
Yap Caong could see the table on which the will was written at the time
it was signed or not; that there were many people in the house; that he
remembered the names of Pedro and Lorenzo; that he could not
remember the names of any others; that the will remained on the table
after he signed it; that after he signed the will he went to the room
where Tomasa was lying; that the will was left on the table outside; that
Tomasa was very ill; that he heard the people asking Tomasa to sign
the will after he was (the witness) had signed it; that he saw Paez sign
the will, that he could not remember whether Anselmo Zacarias had
signed the will, because immediately after he and Paez signed it, he
left because he was hungry; that the place where the table was located
was in the same house, on the floor, about two steps down from the
floor on which Tomasa was.
Rufino R. Papa, was called as a witness for the purpose of supporting
the allegation that Tomasa Elizaga Yap Caong was mentally
incapacitated to make the will dated August 11, 1909 (Exhibit A). Papa
declared that he was a physician; that he knew Tomasa Elizaga Yap
Caong; that he had treated her in the month of August; that he visited
her first on the 8th day of August; that he visited her again on the 9th
and 10th days of August; that on the first visit he found the sick woman
completely weak — very weak from her sickness, in the third stage of
tuberculosis; that she was lying in bed; that on the first visit he found
her with but little sense, the second day also, and on the third day she
had lost all her intelligence; that she died on the 11th of August; tat he
was requested to issue the death certificate; that when he asked her
(Tomasa) whether she was feeling any pain or anything of that kind,
she did not answer at all; that she was in a condition of stupor,
induced, as he believed, by the stage of uraemia from which she was
suffering.
Anselmo Zacarias, who had signed the will of August 11, 1909, was
also called as a witnesses during the rehearing. He testified that he
had known Tomasa Elizaga Yap Caong since he was a child; that
Tomasa was dead; that he had written the will exhibit A; that it was all
in his writing except the last part, which was written by Carlos Sobaco;
that he had written the will Exhibit A at the request of the uncle of
Tomasa; that Lorenzo, the brother of the deceased, was the one who
had instructed him as to the terms of the will ; that the deceased had
not spoken to him concerning the terms of the will; that the will was
written in the dining room of the residence of the deceased; that
Tomasa was in another room different from that in which the will was
written; that the will was not written in the presence of Tomasa; that he
signed the will as a witness in the room where Tomasa was lying; that
the other witnesses signed the will in the same room that when he
went into the room where the sick woman was (Tomasa Elizaga Yap
Caong) Lorenzo had the will in his hands; that when Lorenzo came to
the bed he showed the will to his sister (Tomasa) and requested her to
sign it; that she was lying stretched out on the bed and two women,
who were taking care of her, helped her to sit up, supporting her by
lacing their hands at her back; that when she started to write her name,
he withdrew from the bed on account of the best inside the room; when
he came back again to the sick bed the will was signed and was again
in the hands of Lorenzo; that he did not see Tomasa sign the will
because he withdrew from the room; that he did not know whether
Tomasa had been informed of the contents of the will or not; he
supposed she must have read it because Lorenzo turned the will over
to her; that when Lorenzo asked her to sign the will, he did not know
what she said — he could not hear her voice; that he did not know
whether the sick woman was him sign the will or not; that he believed
that Tomasa died the next day after the will had been signed; that the
other two witnesses, Timoteo Paez and Severo Tabora, had signed the
will in the room with the sick woman; that he saw them sign the will and
that they saw him sign it; that he was not sure whether the testatrix
could have seen them at the time they signed the will or not; that there
was a screen before the bed; that he did not think that Lorenzo had
been giving instructions as to the contents of the will; that about ten or
fifteen minutes elapsed from the time Lorenzo handed the will to
Tomasa before she started to sign it; that the pen with which she
signed the will as given to her and she held it.
Clotilde Mariano testified that he was a cigarette maker; that he knew
Tomasa Elizaga Yap Caong and that she was dead; that she had
made two wills; that the first one was written by La O and the second
by Zacarias; that he was present at the time Zacarias wrote the second
one; that he was present when the second will was taken to Tomasa
for signature; that Lorenzo had told Tomasa that the second will was
exactly like the first; that Tomasa said she could not sign it.
On cross examination he testified that there was a lot of visitors there;
that Zacarias was not there; that Paez and Tabora were there; that he
had told Tomasa that the second will was exactly like the first.
During the rehearing Cornelia Serrano and Pedro Francisco were also
examined as witnesses. There is nothing in their testimony, however,
which in our opinion is important.
In rebuttal Julia e la Cruz was called as a witness. She testified that
she was 19 years of age; that she knew Tomasa Elizaga Yap Caong
during her lifetime; that she lived in the house of Tomasa during the
last week of her illness; that Tomasa had made two wills; that she was
present when the second one was executed; that a lawyer had drawn
the will in the dining room and after it had been drawn and everything
finished , it was taken to where Doña Tomasa was, for her signature;
that it was taken to her by Anselmo Zacarias; that she was present at
the time Tomasa signed the will that there were many other people
present also; that she did not see Timoteo Paez there; that she saw
Severo Tabora; that Anselmo Zacarias was present; that she did not
hear Clotilde Mariano ask Tomasa to sign the will; that she did not hear
Lorenzo say to Tomasa that the second will was the same sa the first;
that Tomasa asked her to help her to sit up and to put a pillow to her
back when Zacarias gave her some paper or document and asked her
to sign it; that she saw Tomasa take hold of the pen and try to sign it
but she did not see the place she signed the document, for the reason
that she left the room; that she saw Tomasa sign the document but did
not see on what place on the document she signed; and that a notary
public came the next morning; that Tomasa was able to move about in
the bed; that she had seen Tomasa in the act of starting to write her
signature when she told her to get her some water.
Yap Cao Quiang was also called as a witness in rebuttal. He testified
that he knew Tomasa Elizaga Yap Caong and knew that she had
made a will; that he saw the will at the time it was written; that he saw
Tomasa sign it on her head; that he did not hear Lorenzo ask Tomasa
to sign the will; that Lorenzo had handed the will to Tomasa to sign;
that he saw the witnesses sign the will on a table near the bed; that the
table was outside the curtain or screen and near the entrance to the
room where Tomasa was lying.
Lorenzo Yap Caong testified as a witness on rebuttal. He said that he
knew Anselmo Zacarias and that Zacarias wrote the will of Tomasa
Elizaga Yap Caong; that Tomasa had given him instructions; that
Tomasa had said that she sign the will; that the will was on a table
near the bed of Tomasa; that Tomasa, from where she was lying in the
bed, could seethe table where the witnesses had signed the will.
During the rehearing certain other witnesses were also examined; in
our opinion, however, it is necessary to quote from them for the reason
that their testimony in no way affects the preponderance of proof
above quoted.
At the close of the rehearing the Honorable A. S. Crossfield, judge, in
an extended opinion, reached the conclusion that the last will and
testament of Tomasa Elizaga Yap Caong, which was attached to the
record and marked Exhibit A was the last will and testament of the said
Tomasa Elizaga Yap Caong and admitted it to probate and ordered
that the administrator therefore appointed should continue as such
administrator. From that order the protestants appealed to this court,
and made the following assignments of error:
I. The court erred in declaring that the will, Exhibit A, was executed by
the deceased Tomasa Yap Caong, without the intervention of any
external influence on the part of other persons.
II. The court erred in declaring that the testator had clear knowledge
and knew what she was doing at the time of signing the will.
III. The court erred in declaring that the signature of the deceased
Tomasa Yap Caong in the first will, Exhibit 1, is identical with that
which appears in the second will, Exhibit A.
IV. The court erred in declaring that the will, Exhibit A, was executed in
accordance with the law.
With reference to the first assignment of error, to wit, that undue
influence was brought to bear upon Tomasa Elizaga Yap Caong in the
execution of her will of August 11th, 1909 (Exhibit A), the lower court
found that no undue influence had been exercised over the mind of the
said Tomasa Elizaga Yap Caong. While it is true that some of the
witnesses testified that the brother of Tomasa, one Lorenzo, had
attempted to unduly influence her mind in the execution of he will, upon
the other hand, there were several witnesses who testified that
Lorenzo did not attempt, at the time of the execution of the will, to
influence her mind in any way. The lower court having had an
opportunity to see, to hear, and to note the witnesses during their
examination reached the conclusion that a preponderance of the
evidence showed that no undue influence had been used. we find no
good reason in the record for reversing his conclusions upon that
question.
With reference to the second assignment of error to wit, that Tomasa
Elizaga Yap Caong was not of sound mind and memory at the time of
the execution of the will, we find the same conflict in the declarations of
the witnesses which we found with reference to the undue influence.
While the testimony of Dr. Papa is very strong relating to the mental
condition of Tomasa Elizaga Yap Caong, yet, nevertheless, his
testimony related to a time perhaps twenty-four hours before the
execution of the will in question (Exhibit A). Several witnesses testified
that at the time the will was presented to her for her signature, she was
of sound mind and memory and asked for a pen and ink and kept the
will in her possession for ten or fifteen minutes and finally signed it.
The lower court found that there was a preponderance of evidence
sustaining the conclusion that Tomasa Elizaga Yap Caong was of
sound mind and memory and in the possession of her faculties at the
time she signed this will. In view of the conflict in the testimony of the
witnesses and the finding of the lower court, we do not feel justified in
reversing his conclusions upon that question.
With reference to the third assignment of error, to wit, that the lower
court committed an error in declaring that the signature of Tomasa
Elizaga Yap Caong, on her first will (August 6, 1909, Exhibit 1), is
identical with that which appears in the second will (August 11, 1909,
Exhibit A), it may be said:
First. That whether or not Tomasa Elizaga Yap Caong executed the
will of August 6, 1909 (Exhibit 1), was not the question presented to
the court. The question presented was whether or not she had duly
executed the will of August 11, 1909 (Exhibit A).
Second. There appears to be but little doubt that Tomasa Elizaga Yap
Caong did execute the will of August 6, 1909. Several witnesses
testified to that fact. The mere fact, however, that she executed a
former will is no proof that she did not execute a later will. She had a
perfect right, by will, to dispose of her property, in accordance with the
provisions of law, up to the very last of moment her life. She had a
perfect right to change, alter, modify or revoke any and all of her
former wills and to make a new one. Neither will the fact that the new
will fails to expressly revoke all former wills, in any way sustain the
charge that she did not make the new will.
Third. In said third assignment of error there is involved in the
statement that "The signature of Tomasa Elizaga Yap Caong, in her
first will (Exhibit 1) was not identical with that which appears in her
second will (Exhibit A)" the inference that she had not signed the
second will and all the argument of the appellants relating to said third
assignment of error is based upon the alleged fact that Tomasa
Elizaga Yap Caong did not sign Exhibit A. Several witnesses testified
that they saw her write the name "Tomasa." One of the witnesses
testified that she had written her full name. We are of the opinion, and
we think the law sustains our conclusion, that if Tomasa Elizaga Yap
Caong signed any portion of her name tot he will, with the intention to
sign the same, that the will amount to a signature. It has been held
time and time again that one who makes a will may sign the same by
using a mark, the name having been written by others. If writing a mark
simply upon a will is sufficient indication of the intention of the person
to make and execute a will, then certainly the writing of a portion or all
of her name ought to be accepted as a clear indication of her intention
to execute the will. (Re Goods of Savory, 15 Jur., 1042; Addy vs. Grix,
8 Ves. Jr., 504; Baker vs. Dening, 8 Ad. and El., 94 Long vs. Zook, 13
Penn., 400; Vernon vs. Kirk, 30 Penn., 218; Cozzen's Will, 61 Penn.,
196; Re Goods of Emerson, L. R. 9 Ir., 443; Main vs. Ryder, 84 Penn.,
217.)
We find a very interesting case reported in 131 Pennsylvania State,
220 (6 L. R. A., 353), and cited by the appellees, which was known as
"Knox's Appeal." In this case one Harriett S. Knox died very suddenly
on the 17th of October, 1888, at the residence of her father. After her
death a paper was found in her room, wholly in her handwriting, written
with a lead pencil, upon three sides of an ordinary folded sheet of note
paper and bearing the signature simply of "Harriett." In this paper the
deceased attempted to make certain disposition of her property. The
will was presented for probate. The probation was opposed upon the
ground that the same did not contain the signature of the deceased.
That was the only question presented to the court, whether the
signature, in the form above indicated, was a sufficient signature to
constitute said paper the last will and testament of Harriett S. Knox. It
was admitted that the entire paper was in the handwriting of the
deceased. In deciding that question, Justice Mitchell said:
The precise case of a signature by the first name only, does not
appear to have arisen either in England or the United States; but the
principle on which the decisions already referred to were based,
especially those in regard to signing by initials only, are equally
applicable to the present case, and additional force is given to them by
the decisions as to what constitutes a binding signature to a contract.
(Palmer vs. Stephens, 1 Denio, 478; Sanborne vs. Flager, 9 Alle, 474;
Weston vs. Myers, 33 Ill., 424; Salmon Falls, etc. Co. vs. Goddard, 14
How. (U. S.), 446.)
The man who cannot write and who is obliged to make his mark simply
therefor, upon the will, is held to "sign" as effectually as if he had
written his initials or his full name. It would seem to be sufficient, under
the law requiring a signature by the person making a will, to make his
mark, to place his initials or all or any part of his name thereon. In the
present case we think the proof shows, by a large preponderance, that
Tomasa Elizaga Yap Caong, if she did not sign her full name, did at
least sign her given name "Tomasa," and that is sufficient to satisfy the
statute.
With reference to the fourth assignment of error, it may be said that the
argument which was preceded is sufficient to answer it also.
During the trial of the cause the protestants made a strong effort to
show that Tomasa Elizaga Yap Caong did not sign her name in the
presence of the witnesses and that they did not sign their names in
their presence nor in the presence of each other. Upon that question
there is considerable conflict of proof. An effort was made to show that
the will was signed by the witnesses in one room and by Tomasa in
another. A plan of the room or rooms in which the will was signed was
presented as proof and it was shown that there was but one room; that
one part of the room was one or two steps below the floor of the other;
that the table on which the witnesses signed the will was located upon
the lower floor of the room. It was also shown that from the bed in
which Tomasa was lying, it was possible for her to see the table on
which the witnesses signed the will. While the rule is absolute that one
who makes a will must sign the same in the presence of the witnesses
and that the witnesses must sign in the presence of each other, as well
as in the presence of the one making the will, yet, nevertheless, the
actual seeing of the signatures made is not necessary. It is sufficient if
the signatures are made where it is possible for each of the necessary
parties, if they desire to see, may see the signatures placed upon the
will.
In cases like the present where there is so much conflict in the proof, it
is very difficult for the courts to reach conclusions that are absolutely
free from doubt. Great weight must be given by appellate courts who
do not see or hear the witnesses, to the conclusions of the trial courts
who had that opportunity.
Upon a full consideration of the record, we find that a preponderance
of the proof shows that Tomasa Elizaga Yap Caong did execute, freely
and voluntarily, while she was in the right use of all her faculties, the
will dated August 11, 1909 (Exhibit A). Therefore the judgment of the
lower court admitting said will to probate is hereby affirmed with costs.
7. Barut vs. Cabacungan (February 12, 1912)
MORELAND, J.:
This case is closely connected with the case of Faustino Cabacungan
vs. Pedro Barut and another, No. 6284,1 just decided by this court,
wherein there was an application for the probate of an alleged last will
and testament of the same person the probate of whose will is involved
in this suit.
This appeal arises out of an application on the part of Pedro Barut to
probate the last will and testament of Maria Salomon, deceased. It is
alleged in the petition of the probate that Maria Salomon died on the
7th day of November, 1908, in the pueblo of Sinait, Ilocos Sur, leaving
a last will and testament bearing date March 2, 1907. Severo Agayan,
Timotea Inoselda, Catalino Ragasa, and A. M. Jimenez are alleged to
have been witnesses to the execution thereof. By the terms of said will
Pedro Barut received the larger part of decedent's property.
The original will appears on page 3 of the record and is in the Ilocano
dialect. Its translation into Spanish appears at page 11. After disposing
of her property the testatrix revoked all former wills by her made. She
also stated in said will that being unable to read or write, the same had
been read to her by Ciriaco Concepcion and Timotea Inoselda and that
she had instructed Severo Agayan to sign her name to it as testatrix.
The probate of the will was contested and opposed by a number of the
relatives of the deceased on various grounds, among them that a later
will had been executed by the deceased. The will referred to as being
a later will is the one involved in case No. 6284 already referred to.
Proceeding for the probate of this later will were pending at the time.
The evidence of the proponents and of the opponents was taken by
the court in both cases for the purpose of considering them together.
In the case before us the learned probate court found that the will was
not entitled to probate upon the sole ground that the handwriting of the
person who it is alleged signed the name of the testatrix to the will for
and on her behalf looked more like the handwriting of one of the other
witnesses to the will than that of the person whose handwriting it was
alleged to be. We do not believe that the mere dissimilarity in writing
thus mentioned by the court is sufficient to overcome the
uncontradicted testimony of all the witnesses to the will that the
signature of the testatrix was written by Severo Agayan at her request
and in her presence and in the presence of all the witnesses to the will.
It is immaterial who writes the name of the testatrix provided it is
written at her request and in her presence and in the presence of all
the witnesses to the execution of the will.
The court seems , by inference at least, to have had in mind that under
the law relating to the execution of a will it is necessary that the person
who signs the name of the testatrix must afterwards sign his own
name; and that, in view of the fact that, in the case at bar, the name
signed below that of the testatrix as the person who signed her name,
being, from its appearance, not the same handwriting as that
constituting the name of the testatrix, the will is accordingly invalid,
such fact indicating that the person who signed the name of the
testatrix failed to sign his own. We do not believe that this contention
can be sustained. Section 618 of the Code of Civil Procedure reads as
follows:
No will, except as provided in the preceding section, shall be valid to
pass any estate, real or personal, nor charge or effect the same,
unless it be in writing and signed by the testator, or by the testator's
name written by some other person in his presence, and by his
expenses direction, and attested and subscribed by three or more
credible witnesses in the presence of the testator and of each. . . .
This is the important part of the section under the terms of which the
court holds that the person who signs the name of the testator for him
must also sign his own name The remainder of the section reads:
The attestation shall state the fact that the testator signed the will, or
caused it to be signed by some other person, at his express direction,
in the presence of three witnesses, and that they attested and
subscribed it in his presence and in the presence of each other. But
the absence of such form of attestation shall not render the will invalid
if it is proven that the will was in fact signed and attested as in this
section provided.
From these provisions it is entirely clear that, with respect to
the validity of the will, it is unimportant whether the person who writes
the name of the testatrix signs his own or not. The important thing is
that it clearly appears that the name of the testatrix was signed at her
express direction in the presence of three witnesses and that they
attested and subscribed it in her presence and in the presence of each
other. That is all the statute requires. It may be wise as a practical
matter that the one who signs the testator's name signs also his own;
but that it is not essential to the validity of the will. Whether one parson
or another signed the name of the testatrix in this case is absolutely
unimportant so far as the validity of her will is concerned. The plain
wording of the statute shows that the requirement laid down by the trial
court, if it did lay down, is absolutely unnecessary under the law; and
the reasons underlying the provisions of the statute relating to the
execution of wills do not in any sense require such a provision. From
the standpoint of language it is an impossibility to draw from the words
of the law the inference that the persons who signs the name of the
testator must sign his own name also. The law requires only three
witnesses to a will, not four.
Nor is such requirement found in any other branch of the law. The
name of a person who is unable to write may be signed by another by
express direction to any instrument known to the law. There is no
necessity whatever, so far as the validity of the instrument is
concerned, for the person who writes the name of the principal in the
document to sign his own name also. As a matter of policy it may be
wise that he do so inasmuch as it would give such intimation as would
enable a person proving the document to demonstrate more readily the
execution by the principal. But as a matter of essential validity of the
document, it is unnecessary. The main thing to be established in the
execution of the will is the signature of the testator. If that signature is
proved, whether it be written by himself or by another at his request, it
is none the less valid, and the fact of such signature can be proved as
perfectly and as completely when the person signing for the principal
omits to sign his own name as it can when he actually signs. To hold a
will invalid for the lack of the signature of the person signing the name
of the principal is, in the particular case, a complete abrogation of the
law of wills, as it rejects and destroys a will which the statute expressly
declares is valid.
There have been cited three cases which it is alleged are in opposition
to the doctrine which we have herein laid down. They are Ex
parte Santiago (4 Phil. Rep., 692), Ex parte Arcenas (4 Phil. Rep.,
700), and Guison vs.Concepcion (5 Phil. Rep., 551). Not one of these
cases is in point. The headnote in the case last above stated gives an
indication of what all of cases are and the question involved in each
one of them. It says:
The testatrix was not able to sign it for her. Instead of writing her name
he wrote his own upon the will. Held, That the will was not duly
executed.
All of the above cases are precisely of this character. Every one of
them was a case in which the person who signed the will for the
testator wrote his own name to the will instead of writing that of the
testator, so that the testator's name nowhere appeared attached to the
will as the one who executed it. The case of Ex parte Arcenas contains
the following paragraph:
Where a testator does not know, or is unable for any reason, to sign
the will himself, it shall be signed in the following manner: "John Doe,
by the testator, Richard Roe;" or in this form: "By the testator. John
Doe, Richard Roe." All this must be written by the witness signing at
the request of the testator.
The only question for decision in that case, as we have before stated,
was presented by the fact that the person who was authorized to sign
the name of the testator to the will actually failed to sign such name but
instead signed his own thereto. The decision in that case related only
to that question.
Aside from the presentation of an alleged subsequent will the
contestants in this case have set forth no reason whatever why the will
involved in the present litigation should not be probated. The due and
legal execution of the will by the testatrix is clearly established by the
proofs in this case. Upon the facts, therefore, the will must be
probated. As to the defense of a subsequent will, that is resolved in
case No. 6284 of which we have already spoken. We there held that
said later will not the will of the deceased.
The judgment of the probate court must be and is hereby reversed and
that court is directed to enter an order in the usual form probating the
will involved in this litigation and to proceed with such probate in
accordance with law.
8. Balonan vs. Abellana (August 31, 1960)
LABARADOR, J.:
Appeal from a decision of the Court of First Instance of Zamboanga
City admitting to probate the will of one Anacleta Abellana. The case
was originally appealed to the Court of Appeals where the following
assignment of error is made:
The appellants respectfully submit that the Trial Court erred in holding
that the supposed testament, Exh. "A", was signed in accordance with
law; and in admitting the will to probate.
In view of the fact that the appeal involves a question of law the said
court has certified the case to us.
The facts as found by the trial court are as follows:
It appears on record that the last Will and Testament (Exhibit "A"),
which is sought to be probated, is written in the Spanish language and
consists of two (2) typewritten pages (pages 4 and 5 of the record)
double space. The first page is signed by Juan Bello and under his
name appears typewritten "Por la testadora Anacleta Abellana,
residence Certificate A-1167629, Enero 20, 1951, Ciudad de
Zamboanga', and on the second page appears the signature of three
(3) instrumental witnesses Blas Sebastian, Faustino Macaso and
Rafael Ignacio, at the bottom of which appears the signature of T. de
los Santos and below his signature is his official designation as the
notary public who notarized the said testament. On the first page on
the left margin of the said instrument also appear the signatures of the
instrumental witnesses. On the second page, which is the last page of
said last Will and Testament, also appears the signature of the three
(3) instrumental witnesses and on that second page on the left margin
appears the signature of Juan Bello under whose name appears
handwritten the following phrase, "Por la Testadora Anacleta Abellana'.
The will is duly acknowledged before Notary Public Attorney Timoteo
de los Santos. (Emphasis supplied)
The appeal squarely presents the following issue: Does the signature
of Dr. Juan A. Abello above the typewritten statement "Por la
Testadora Anacleta Abellana . . ., Ciudad de Zamboanga," comply with
the requirements of law prescribing the manner in which a will shall be
executed?
The present law, Article 805 of the Civil Code, in part provides as
follows:
Every will, other than a holographic will, must be subscribed at the end
thereof by the testator himself or by the testator's name written by
some other person in his presence, and by his express direction, and
attested and subscribed by three or more credible witness in the
presence of the testator and of one another. (Emphasis supplied.)
The clause "must be subscribed at the end thereof by the testator
himself or by the testator's name written by some other person in his
presence and by his express direction," is practically the same as the
provisions of Section 618 of the Code of Civil Procedure (Act No. 190)
which reads as follows:
No will, except as provided in the preceding section shall be valid to
pass any estate, real or personal, nor charge or affect the same,
unless it be in writing and signed by the testator, or by the testator's
name written by some other person in his presence, and by his
express direction, and attested and subscribed by three or more
credible witnesses in the presence of the testator and of each other. . .
. (Emphasis supplied).
Note that the old law as well as the new require that the testator
himself sign the will, or if he cannot do so, the testator's name must be
written by some other person in his presence and by his express
direction. Applying this provision this Court said in the case of Ex Parte
Pedro Arcenas, et al., Phil., 700:
It will be noticed from the above-quoted section 618 of the Code of
Civil Procedure that where the testator does not know how, or is
unable, to sign, it will not be sufficient that one of the attesting
witnesses signs the will at the testator's request, the notary certifying
thereto as provided in Article 695 of the Civil Code, which, in this
respect, was modified by section 618 above referred to, but it is
necessary that the testator's name be written by the person signing in
his stead in the place where he could have signed if he knew how or
was able to do so, and this in the testator's presence and by his
express direction; so that a will signed in a manner different than that
prescribed by law shall not be valid and will not be allowed to be
probated.
Where a testator does not know how, or is unable for any reason, to
sign the will himself, it shall be signed in the following manner:
John Doe by the testator, Richard Doe; or in this form: "By the testator,
John Doe, Richard Doe." All this must be written by the witness signing
at the request of the testator.
Therefore, under the law now in force, the witness Naval A. Vidal
should have written at the bottom of the will the full name of the
testator and his own name in one forms given above. He did not do so,
however, and this is failure to comply with the law is a substantial
defect which affects the validity of the will and precludes its allowance,
notwithstanding the fact that no one appeared to oppose it.
The same ruling was laid down in the case of Cuison vs. Concepcion,
5 Phil., 552. In the case of Barut vs. Cabacungan, 21 Phil., 461, we
held that the important thing is that it clearly appears that the name of
the testatrix was signed at her express direction; it is unimportant
whether the person who writes the name of the testatrix signs his own
or not. Cases of the same import areas follows: (Ex Parte Juan
Ondevilla, 13 Phil., 479, Caluya vs.Domingo, 27 Phil., 330;
Garcia vs. Lacuesta, 90 Phil., 489).
In the case at bar the name of the testatrix, Anacleta Abellana, does
not appear written under the will by said Abellana herself, or by Dr.
Juan Abello. There is, therefore, a failure to comply with the express
requirement in the law that the testator must himself sign the will, or
that his name be affixed thereto by some other person in his presence
and by his express direction.
It appearing that the above provision of the law has not been complied
with, we are constrained to declare that the said will of the deceased
Anacleta Abellana may not be admitted to probate.
WHEREFORE, the decision appealed from is hereby set aside and the
petition for the probate of the will denied. With costs against petitioner.
9. In re Will of Siason (March 23, 1908)
In the matter of the will of MARIA SIASON Y MADRID DE
LEDESMA, Probate proceedings.
Antonio Jayme for petitioner.
TRACEY, J.:
In this special proceedings for the legalization of a will, the Court of
First Instance refused probate on the ground that the instrument was
not subscribed by the witnesses in the presence of the testatrix and of
each other as required by section 618 of the Code of Civil Procedure.
The testatrix was ill and confined to her house, the execution of the will
taking place in the sala where she lay upon a sofa. The witnesses
differ as to whether the testatrix from where she lay could read what
was written at the table; and the first witness, after signing, went away
from the table. These two circumstances do not impair the validity of
the execution of the will. The witnesses being in the same apartment
were all present and the statute does not exact that either they are the
testator shall read what has been written. Had one of the witnesses left
the room or placed himself so remotely therein as to be cut off from
actual participation in the proceedings, then the subscription might not
have taken place in his presence within the meaning of the law.
A second objection is suggested on this appeal, that the signature to
the instrument is defective. It ends in this form:
At the request of Señora Maria Siason.
CATALINO GEVA.
T. SILVERIO. FRUCTUOSO G. MORIN.
RAFAEL ESPINOS.
Section 618 of the Code of Civil Procedure reads as follows:
Requisites of will. — No will, except as provided in the
preceding section, shall be valid to pass any estate, real of
personal, nor charge or effect the same, unless it be in
writing and signed by the testator, or by the testator's name
written by some other person in his presence, and by his
express direction, and attested and subscribed by three or
more credible witnesses in the presence of the testator and
each of the other. The attestation shall estate the fact that
the testator signed the will, or caused it to be signed by
some other person, at his express direction, in the presence
of three witnesses, and that they attested and subscribed it
in his presence and in the presence of each other. But the
absence of such form of attestation shall not render the will
invalid if it is proven that the will was in fact signed and
attested as in this section provided.
The misunderstanding of this section arising from the incorrect
rendering of into Spanish in the official translation was corrected by
what was said in the decision of this court in Ex parte Arcenas (4 Phil.
Rep., 700). Confusion has also come out of the different wording of the
two clauses of this section, the one specifying the requisites of
execution and the other those of the attestation clause. The concluding
sentence of the section, however, makes clear that the former and not
the latter is to control. Consequently the will must be signed by the
testator, or by the testator's name written by some other person in his
presence, and by his express direction," and the question presented in
this case is, Are the words "Señora Maria Siason" her name written by
some other person? They undoubtedly are her name, but occurring as
they do after the words "at request of," it is contended that they form a
part of the recital and not a signature, the only signature being the
names of the witnesses themselves. In Guison vs. Concepcion (5 Phil.
Rep., 551) it was held that there was no signature, although the
attestation clause which followed the will contained the name of the
testatrix and was thereafter signed by the witnesses. The distinction
between that case and the present one is one of the extreme nicety,
and in the judgment of the writer of this opinion should not be
attempted. The majority of the court, however, are of the opinion that
the distinction is a tenable one inasmuch as in the Concepcion will the
name of the testatrix occurred only in the body of the attestation
clause, after the first signatures of the witnesses, whereas in this will it
immediately follows the testament itself and precedes the names of the
witnesses.
In sustaining this form of signature, this court does not intend to qualify
the decisions in Ex parte Santiago (4 Phil. Rep., 692), Ex
parte Arcenas, above quoted, or in Abaya vs. Zalamero.1 In the
Arcenas case the court pointed out the correct formula for a signature
which ought to be followed, but did not mean to exclude any other form
substantially equivalent.
The decision of the court below is reversed, without costs, and that
court is directed to admit the instrument before it to probate as the last
will of the testatrix. So ordered.
10. Nera vs. Rimando (February 27, 1911)
SYLLABUS
1. EXECUTION OF WILLS; POSITION OF TESTATOR AND
WITNESS WHEN WILL IS SUBSCRIBED. — The position of testator
and of the witnesses to a will, at the moment of the subscription by
each, must be such that they may see each other sign if they choose
to do so.
2. ID.; ID.; SIGNING IN THE PRESENCE OF EACH OTHER. — The
question whether the testator and the subscribing witnesses to an
alleged will sign the instrument in the presence of each other does not
depend upon proof of the fact that their eyes were actually cast upon
the paper at the moment of its subscription by each of them, but
whether at that moment existing conditions and the position of the
parties, with relation to each other, were such that by merely casting
their eyes in the proper direction they could have seen each other
sign.
3. ID.; ID.; ID.; ONE WITNESS IN OUTER ROOM WHEN WH.L IS
SIGNED. — If one subscribing witness to a will is shown to have been
in an outer room at the time when the testator and the other witnesses
attach their signatures to the instrument in an inner room, the will
would be held invalid — the attaching of the said signatures, under
such circumstances, not being done "in the presence" of the witness in
the outer room.
DECISION
CARSON, J.:
The only question raised by the evidence in this case as to the due
execution of the instrument propounded as a will in the court below, is
whether one of the subscribing witnesses was present in the small
room where it was executed at the time when the testator and the
other subscribing witnesses attached their signatures; or whether at
that time he was outside, some eight or ten feet away, in a large room
connecting with the smaller room by a doorway, across which was
hung a curtain which made it impossible for one in the outside room to
see the testator and the other subscribing witnesses in the act of
attaching their signatures to the instrument.
A majority of the members of the court is of opinion that this
subscribing witness was in the small room with the testator and the
other subscribing witnesses at the time when they attached their
signatures to the instrument, and this finding, of course, disposes of
the appeal and necessitates the affirmance of the decree admitting the
document to probate as the last will and testament of the deceased.
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 v. 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 subscription of each
signature, must be such that they may see each other sign if they
choose to do so. This, of course, does not mean that the testator and
the subscribing witnesses may be held to have executed the
instrument in the presence of each other if it appears that they would
not have been able to see each other sign at that moment, without
changing their 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 document he was actually and
physically present and in such position with relation to Jaboneta that
he could see everything that took place by merely casting his eyes in
the proper direction and without any physical obstruction to prevent his
doing so." And the decision merely laid down the doctrine that the
question whether the testator and the subscribing witnesses to an
alleged will sign the instrument in the presence of each other does not
depend upon proof of the fact that their eyes were actually cast upon
the paper at the moment of its subscription by each of them, but that at
that moment existing conditions and their position with relation to each
other were such that by merely casting the eyes in the proper direction
they could have seen each other sign. To extend the doctrine further
would open the door to the possibility of all manner of fraud,
substitution, and the like, and would defeat the purpose for which this
particular condition is prescribed in the code as one of the requisites in
the execution of a will.
The decree entered by the court below admitting the instrument
propounded therein to probate as the last will and testament of Pedro
Rimando, deceased, is affirmed with costs of this instance against
the Appellant.
11. Jaboneta vs. Gustilo (January 19, 1906)
CARSON, J.:
In these proceedings probate was denied the last will and testament of
Macario Jaboneta, deceased, because the lower court was of the
opinion from the evidence adduced at the hearing that Julio Javellana,
one of the witnesses, did not attach his signature thereto in the
presence of Isabelo Jena, another of the witnesses, as required by the
provisions of section 618 of the Code of Civil Procedure.
The following is a copy of the evidence which appears of record on this
particular point, being a part of the testimony of the said Isabeo Jena:
Q. 1641 Who first signed the will?
A. 1641 I signed it first, and afterwards Aniceto and the others.
Q. 1641 Who were those others to whom you have just referred?
A. 1641 After the witness Aniceto signed the will I left the house,
because I was in a hurry, and at the moment when I was leaving I saw
Julio Javellana with the pen in his hand in position ready to sign (en
actitud de firmar). I believe he signed, because he was at the table. . . .
Q. 1641 State positively whether Julio Javellana did or did not
sign as a witness to the will.
A. 1641 I can't say certainly, because as I was leaving the house
I saw Julio Javellana with the pen in his hand, in position ready to sign.
I believe he signed.
Q. 1641 Why do you believe Julio Javellana signed?
A. 1641 Because he had the pen in his hand, which was resting
on the paper, though I did not actually see him sign.
Q. 1641 Explain this contradictory statement.
A. 1641 After I signed I asked permission to leave, because I
was in a hurry, and while I 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 happened to turn my face and I saw that he had his
hand with the pen resting on the will, moving it as if for the purpose of
signing.
Q. 1641 State positively whether Julio moved his hand with the
pen as if for the purpose of signing, or whether he was signing
A. I believe he was signing.
The truth and accuracy of the testimony of this witness does not seem
to have been questioned by any of the parties to the proceedings, but
the court, nevertheless, found the following facts:
On the 26th day of December, 1901, Macario Jaboneta executed
under the following circumstances the document in question, which
has been presented for probate as his will:
Being in the house of Arcadio Jarandilla, in Jaro, in this province, he
ordered that the document in question be written, and calling Julio
Javellana, Aniceto Jalbuena, and Isabelo Jena as witnesses, executed
the said document as his will. They were all together, and were in the
room where Jaboneta was, and were present when he signed the
document, Isabelo Jena signing afterwards as a witness, at his
request, and in his presence and in the presence of the other two
witnesses. Aniceto Jalbuena then signed as a witness in the presence
of the testator, and in the presence of the other two persons who
signed as witnesses. At that moment Isabelo Jena, being in a hurry to
leave, took his hat and left the room. As he was leaving the house Julio
Javellana took the pen in his hand and put himself in position to sign
the will as a witness, but did not sign in the presence of Isabelo Jena;
but nevertheless, after Jena had left the room the said Julio Javellana
signed as a witness in the presence of the testator and of the witness
Aniceto Jalbuena.
We can not agree with so much of the above finding of facts as holds
that the signature of Javellana was not signed in the presence of Jena,
in compliance with the provisions of section 618 of the Code of Civil
Procedure. The fact that Jena was still in the room when he saw
Javellana moving his hand and pen in the act of affixing his signature
to the will, taken together with the testimony of the remaining
witnesses which shows that Javellana did in fact there and then sign
his name to the will, convinces us that the signature was affixed in the
presence of Jena. The fact that he was in the act of leaving, and that
his back was turned while a portion of the name of the witness was
being written, is of no importance. He, with the other witnesses and the
testator, had assembled for the purpose of executing the testament,
and were together in the same room for that purpose, and at the
moment when the witness Javellana signed the document he was
actually and physically present and in such position with relation to
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, therefore we are of opinion that the
document was in fact signed before he finally left the room.
The purpose of a statutory requirement that the witness sign in the
presence of the testator is said to be that the testator may have ocular
evidence of the identity of the instrument subscribed by the witness
and himself, and the generally accepted tests of presence are vision
and mental apprehension. (See Am. & Eng. Enc. of Law, vol. 30, p.
599, and cases there 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 from whence it came, where the proper orders will
be entered in conformance herewith. So ordered.
12. Taboada vs. Rosal (November 5, 1982)
GUTIERREZ, JR. J.:
This is a petition for review of the orders issued by the Court of First
Instance of Southern Leyte, Branch III, in Special Proceedings No. R-
1713, entitled "In the Matter of the Petition for Probate of the Will of
Dorotea Perez, Deceased; Apolonio Taboada, Petitioner", which
denied the probate of the will, the motion for reconsideration and the
motion for appointment of a special administrator.
In the petition for probate filed with the respondent court, the petitioner
attached the alleged last will and testament of the late Dorotea Perez.
Written in the Cebuano-Visayan dialect, the will consists of two pages.
The first page contains the entire testamentary dispositions and is
signed at the end or bottom of the page by the testatrix alone and at
the left hand margin by the three (3) instrumental witnesses. The
second page which contains the attestation clause and the
acknowledgment is signed at the end of the attestation clause by the
three (3) attesting witnesses and at the left hand margin by the
testatrix.
Since no opposition was filed after the petitioner's compliance with the
requirement of publication, the trial court commissioned the branch
clerk of court to receive the petitioner's evidence. Accordingly, the
petitioner submitted his evidence and presented Vicente Timkang, one
of the subscribing witnesses to the will, who testified on its
genuineness and due execution.
The trial court, thru then Presiding Judge Ramon C. Pamatian issued
the questioned order denying the probate of the will of Dorotea Perez
for want of a formality in its execution. In the same order, the petitioner
was also required to submit the names of the intestate heirs with their
corresponding addresses so that they could be properly notified and
could intervene in the summary settlement of the estate.
Instead of complying with the order of the trial court, the petitioner filed
a manifestation and/or motion, ex partepraying for a thirty-day period
within which to deliberate on any step to be taken as a result of the
disallowance of the will. He also asked that the ten-day period required
by the court to submit the names of intestate heirs with their addresses
be held in abeyance.
The petitioner filed a motion for reconsideration of the order denying
the probate of the will. However, the motion together with the previous
manifestation and/or motion could not be acted upon by the Honorable
Ramon C. Pamatian due to his transfer to his new station at Pasig,
Rizal. The said motions or incidents were still pending resolution when
respondent Judge Avelino S. Rosal assumed the position of presiding
judge of the respondent court.
Meanwhile, the petitioner filed a motion for the appointment of special
administrator.
Subsequently, the new Judge denied the motion for reconsideration as
well as the manifestation and/or motion filed ex parte. In the same
order of denial, the motion for the appointment of special administrator
was likewise denied because of the petitioner's failure to comply with
the order requiring him to submit the names of' the intestate heirs and
their addresses.
The petitioner decided to file the present petition.
For the validity of a formal notarial will, does Article 805 of the Civil
Code require that the testatrix and all the three instrumental and
attesting witnesses sign at the end of the will and in the presence of
the testatrix and of one another?
Article 805 of the Civil Code provides:
Every will, other than a holographic will, must be
subscribed at the end thereof by the testator
himself or by the testator's name written by some
other person in his presence, and by his express
direction, and attested and subscribed by three or
more credible witnesses in the presence of the
testator and of one another.
The testator or the person requested by him to
write his name and the instrumental witnesses of
the will, shall also sign, as aforesaid, each and
every page thereof, except the last, on the left
margin, and all the pages shall be numbered
correlatively in letters placed on the upper part of
each page.
The attestation shall state the number of pages
used upon which the will is written, and the fact
that the testator signed the will and every page
thereof, or caused some other person to write his
name, under his express direction, in the presence
of the instrumental witnesses, and that the lacier
witnesses and signed the will and the pages
thereof in the presence of the testator and of one
another.
If the attestation clause is in a language not known
to the witnesses, it shall be interpreted to the
witnesses, it shall be interpreted to them.
The respondent Judge interprets the above-quoted provision of law to
require that, for a notarial will to be valid, it is not enough that only the
testatrix signs at the "end" but an the three subscribing witnesses must
also sign at the same place or at the end, in the presence of the
testatrix and of one another because the attesting witnesses to a will
attest not merely the will itself but also the signature of the testator. It is
not sufficient compliance to sign the page, where the end of the will is
found, at the left hand margin of that page.
On the other hand, the petitioner maintains that Article 805 of the Civil
Code does not make it a condition precedent or a matter of absolute
necessity for the extrinsic validity of the wig that the signatures of the
subscribing witnesses should be specifically located at the end of the
wig after the signature of the testatrix. He contends that it would be
absurd that the legislature intended to place so heavy an import on the
space or particular location where the signatures are to be found as
long as this space or particular location wherein the signatures are
found is consistent with good faith and the honest frailties of human
nature.
We find the petition meritorious.
Undoubtedly, under Article 805 of the Civil Code, the will must be
subscribed or signed at its end by the testator himself or by the
testator's name written by another person in his presence, and by his
express direction, and attested and subscribed by three or more
credible witnesses in the presence of the testator and of one another.
It must be noted that the law uses the
terms attested and subscribed Attestation consists in witnessing the
testator's execution of the will in order to see and take note mentally
that those things are, done which the statute requires for the execution
of a will and that the signature of the testator exists as a fact. On the
other hand, subscription is the signing of the witnesses' names upon
the same paper for the purpose of Identification of such paper as the
will which was executed by the testator. (Ragsdale v. Hill, 269 SW 2d
911).
Insofar as the requirement of subscription is concerned, it is our
considered view that the will in this case was subscribed in a manner
which fully satisfies the purpose of Identification.
The signatures of the instrumental witnesses on the left margin of the
first page of the will attested not only to the genuineness of the
signature of the testatrix but also the due execution of the will as
embodied in the attestation clause.
While perfection in the drafting of a will may be desirable, unsubstantial
departure from the usual forms should be ignored, especially where
the authenticity of the will is not assailed. (Gonzales v. Gonzales, 90
Phil. 444, 449).
The law is to be liberally construed, "the underlying and fundamental
objective permeating the provisions on the law on wills in this project
consists in the liberalization of the manner of their execution with the
end in view of giving the testator more freedom in expressing his last
wishes but with sufficient safeguards and restrictions to prevent the
commission of fraud and the exercise of undue and improper pressure
and influence upon the testator. This objective is in accord with the
modern tendency in respect to the formalities in the execution of a will"
(Report of the Code commission, p. 103).
Parenthetically, Judge Ramon C. Pamatian stated in his questioned
order that were not for the defect in the place of signatures of the
witnesses, he would have found the testimony sufficient to establish
the validity of the will.
The objects of attestation and of subscription were fully met and
satisfied in the present case when the instrumental witnesses signed at
the left margin of the sole page which contains all the testamentary
dispositions, especially so when the will was properly Identified by
subscribing witness Vicente Timkang to be the same will executed by
the testatrix. There was no question of fraud or substitution behind the
questioned order.
We have examined the will in question and noticed that the attestation
clause failed to state the number of pages used in writing the will. This
would have been a fatal defect were it not for the fact that, in this case,
it is discernible from the entire wig that it is really and actually
composed of only two pages duly signed by the testatrix and her
instrumental witnesses. As earlier stated, the first page which contains
the entirety of the testamentary dispositions is signed by the testatrix at
the end or at the bottom while the instrumental witnesses signed at the
left margin. The other page which is marked as "Pagina dos"
comprises the attestation clause and the acknowledgment. The
acknowledgment itself states that "This Last Will and Testament
consists of two pages including this page".
In Singson v. Florentino, et al. (92 Phil. 161, 164), this Court made the
following observations with respect to the purpose of the requirement
that the attestation clause must state the number of pages used:
The law referred to is article 618 of the Code of
Civil Procedure, as amended by Act No. 2645,
which requires that the attestation clause shall
state the number of pages or sheets upon which
the win is written, which requirement has been
held to be mandatory as an effective safeguard
against the possibility of interpolation or omission
of some of the pages of the will to the prejudice of
the heirs to whom the property is intended to be
bequeathed (In re will of Andrada, 42 Phil., 180;
Uy Coque vs. Navas L. Sioca, 43 Phil. 405;
Gumban vs. Gorecho, 50 Phil. 30; Quinto vs.
Morata, 54 Phil. 481; Echevarria vs. Sarmiento, 66
Phil. 611). The ratio decidendi of these cases
seems to be that the attestation clause must
contain a statement of the number of sheets or
pages composing the will and that if this is missing
or is omitted, it will have the effect of invalidating
the will if the deficiency cannot be supplied, not by
evidence aliunde, but by a consideration or
examination of the will itself. But here the situation
is different. While the attestation clause does not
state the number of sheets or pages upon which
the will is written, however, the last part of the
body of the will contains a statement that it is
composed of eight pages, which circumstance in
our opinion takes this case out of the rigid rule of
construction and places it within the realm of
similar cases where a broad and more liberal view
has been adopted to prevent the will of the testator
from being defeated by purely technical
considerations.
Icasiano v. Icasiano (11 SCRA 422, 429) has the following ruling which
applies a similar liberal approach:
... Impossibility of substitution of this page is
assured not only (sic) the fact that the testatrix and
two other witnesses did sign the defective page,
but also by its bearing the coincident imprint of the
seal of the notary public before whom the
testament was ratified by testatrix and all three
witnesses. The law should not be so strictly and
literally interpreted as to penalize the testatrix on
account of the inadvertence of a single witness
over whose conduct she had no control where the
purpose of the law to guarantee the Identity of the
testament and its component pages is sufficiently
attained, no intentional or deliberate deviation
existed, and the evidence on record attests to the
fun observance of the statutory requisites.
Otherwise, as stated in Vda. de Gil. Vs. Murciano,
49 Off. Gaz. 1459, at 1479 (decision on
reconsideration) 'witnesses may sabotage the will
by muddling or bungling it or the attestation
clause.
WHEREFORE, the present petition is hereby granted. The orders of
the respondent court which denied the probate of tile will, the motion
for reconsideration of the denial of probate, and the motion for
appointment of a special administrator are set aside. The respondent
court is ordered to allow the probate of the wig and to conduct further
proceedings in accordance with this decision. No pronouncement on
costs.
SO ORDERE
13. Icasiano vs. Icasiano (June 30, 1964)
REYES, J.B.L., J.:
Appeal from an order of the Court of First Instance of Manila admitting
to probate the document and its duplicate, marked as Exhibits "A" and
"A-1", as the true last will and testament of Josefa Villacorte,
deceased, and appointing as executor Celso Icasiano, the person
named therein as such.
This special proceeding was begun on October 2, 1958 by a petition
for the allowance and admission to probate of the original, Exhibit "A"
as the alleged will of Josefa Villacorte, deceased, and for the
appointment of petitioner Celso Icasiano as executor thereof.
The court set the proving of the alleged will for November 8, 1958, and
caused notice thereof to be published for three (3) successive weeks,
previous to the time appointed, in the newspaper "Manila chronicle",
and also caused personal service of copies thereof upon the known
heirs.
On October 31, 1958, Natividad Icasiano, a daughter of the testatrix,
filed her opposition; and on November 10, 1958, she petitioned to have
herself appointed as a special administrator, to which proponent
objected. Hence, on November 18, 1958, the court issued an order
appointing the Philippine Trust Company as special
administrator. 1äwphï1.ñët
On February 18, 1959, Enrique Icasiano, a son of the testatrix, also
filed a manifestation adopting as his own Natividad's opposition to the
probate of the alleged will.
On March 19, 1959, the petitioner proponent commenced the
introduction of his evidence; but on June 1, 1959, he filed a motion for
the admission of an amended and supplemental petition, alleging that
the decedent left a will executed in duplicate with all the legal
requirements, and that he was, on that date, submitting the signed
duplicate (Exhibit "A-1"), which he allegedly found only on or about
May 26, 1959. On June 17, 1959, oppositors Natividad Icasiano de
Gomez and Enrique Icasiano filed their joint opposition to the
admission of the amended and supplemental petition, but by order of
July 20, 1959, the court admitted said petition, and on July 30, 1959,
oppositor Natividad Icasiano filed her amended opposition. Thereafter,
the parties presented their respective evidence, and after several
hearings the court issued the order admitting the will and its duplicate
to probate. From this order, the oppositors appealed directly to this
Court, the amount involved being over P200,000.00, on the ground
that the same is contrary to law and the evidence.
The evidence presented for the petitioner is to the effect that Josefa
Villacorte died in the City of Manila on September 12, 1958; that on
June 2, 1956, the late Josefa Villacorte executed a last will and
testament in duplicate at the house of her daughter Mrs. Felisa
Icasiano at Pedro Guevara Street, Manila, published before and
attested by three instrumental witnesses, namely: attorneys Justo P.
Torres, Jr. and Jose V. Natividad, and Mr. Vinicio B. Diy; that the will
was acknowledged by the testatrix and by the said three instrumental
witnesses on the same date before attorney Jose Oyengco Ong,
Notary Public in and for the City of Manila; and that the will was
actually prepared by attorney Fermin Samson, who was also present
during the execution and signing of the decedent's last will and
testament, together with former Governor Emilio Rustia of Bulacan,
Judge Ramon Icasiano and a little girl. Of the said three instrumental
witnesses to the execution of the decedent's last will and testament,
attorneys Torres and Natividad were in the Philippines at the time of
the hearing, and both testified as to the due execution and authenticity
of the said will. So did the Notary Public before whom the will was
acknowledged by the testatrix and attesting witnesses, and also
attorneys Fermin Samson, who actually prepared the document. The
latter also testified upon cross examination that he prepared one
original and two copies of Josefa Villacorte last will and testament at
his house in Baliuag, Bulacan, but he brought only one original and
one signed copy to Manila, retaining one unsigned copy in Bulacan.
The records show that the original of the will, which was surrendered
simultaneously with the filing of the petition and marked as Exhibit "A"
consists of five pages, and while signed at the end and in every page,
it does not contain the signature of one of the attesting witnesses, Atty.
Jose V. Natividad, on page three (3) thereof; but the duplicate copy
attached to the amended and supplemental petition and marked as
Exhibit "A-1" is signed by the testatrix and her three attesting
witnesses in each and every page.
The testimony presented by the proponents of the will tends to show
that the original of the will and its duplicate were subscribed at the end
and on the left margin of each and every page thereof by the testatrix
herself and attested and subscribed by the three mentioned witnesses
in the testatrix's presence and in that of one another as witnesses
(except for the missing signature of attorney Natividad on page three
(3) of the original); that pages of the original and duplicate of said will
were duly numbered; that the attestation clause thereof contains all the
facts required by law to be recited therein and is signed by the
aforesaid attesting witnesses; that the will is written in the language
known to and spoken by the testatrix that the attestation clause is in a
language also known to and spoken by the witnesses; that the will was
executed on one single occasion in duplicate copies; and that both the
original and the duplicate copies were duly acknowledged before
Notary Public Jose Oyengco of Manila on the same date June 2, 1956.
Witness Natividad who testified on his failure to sign page three (3) of
the original, admits that he may have lifted two pages instead of one
when he signed the same, but affirmed that page three (3) was signed
in his presence.
Oppositors-appellants in turn introduced expert testimony to the effect
that the signatures of the testatrix in the duplicate (Exhibit "A-1") are
not genuine nor were they written or affixed on the same occasion as
the original, and further aver that granting that the documents were
genuine, they were executed through mistake and with undue
influence and pressure because the testatrix was deceived into
adopting as her last will and testament the wishes of those who will
stand to benefit from the provisions of the will, as may be inferred from
the facts and circumstances surrounding the execution of the will and
the provisions and dispositions thereof, whereby proponents-appellees
stand to profit from properties held by them as attorneys-in-fact of the
deceased and not enumerated or mentioned therein, while oppositors-
appellants are enjoined not to look for other properties not mentioned
in the will, and not to oppose the probate of it, on penalty of forfeiting
their share in the portion of free disposal.
We have examined the record and are satisfied, as the trial court was,
that the testatrix signed both original and duplicate copies (Exhibits "A"
and "A-1", respectively) of the will spontaneously, on the same in the
presence of the three attesting witnesses, the notary public who
acknowledged the will; and Atty. Samson, who actually prepared the
documents; that the will and its duplicate were executed in Tagalog, a
language known to and spoken by both the testator and the witnesses,
and read to and by the testatrix and Atty. Fermin Samson, together
before they were actually signed; that the attestation clause is also in a
language known to and spoken by the testatrix and the witnesses. The
opinion of expert for oppositors, Mr. Felipe Logan, that the signatures
of the testatrix appearing in the duplicate original were not written by
the same had which wrote the signatures in the original will leaves us
unconvinced, not merely because it is directly contradicted by expert
Martin Ramos for the proponents, but principally because of the
paucity of the standards used by him to support the conclusion that the
differences between the standard and questioned signatures are
beyond the writer's range of normal scriptural variation. The expert
has, in fact, used as standards only three other signatures of the
testatrix besides those affixed to the original of the testament (Exh. A);
and we feel that with so few standards the expert's opinion and the
signatures in the duplicate could not be those of the testatrix becomes
extremely hazardous. This is particularly so since the comparison
charts Nos. 3 and 4 fail to show convincingly that the are radical
differences that would justify the charge of forgery, taking into account
the advanced age of the testatrix, the evident variability of her
signatures, and the effect of writing fatigue, the duplicate being signed
right the original. These, factors were not discussed by the expert.
Similarly, the alleged slight variance in blueness of the ink in the
admitted and questioned signatures does not appear reliable,
considering the standard and challenged writings were affixed to
different kinds of paper, with different surfaces and reflecting power.
On the whole, therefore, we do not find the testimony of the oppositor's
expert sufficient to overcome that of the notary and the two
instrumental witnesses, Torres and Natividad (Dr. Diy being in the
United States during the trial, did not testify).
Nor do we find adequate evidence of fraud or undue influence. The
fact that some heirs are more favored than others is proof of neither
(see In re Butalid, 10 Phil. 27; Bugnao vs. Ubag, 14 Phil. 163; Pecson
vs. Coronal, 45 Phil. 216). Diversity of apportionment is the usual
reason for making a testament; otherwise, the decedent might as well
die intestate. The testamentary dispositions that the heirs should not
inquire into other property and that they should respect the distribution
made in the will, under penalty of forfeiture of their shares in the free
part do not suffice to prove fraud or undue influence. They appear
motivated by the desire to prevent prolonged litigation which, as shown
by ordinary experience, often results in a sizeable portion of the estate
being diverted into the hands of non-heirs and speculators. Whether
these clauses are valid or not is a matter to be litigated on another
occassion. It is also well to note that, as remarked by the Court of
Appeals in Sideco vs. Sideco, 45 Off. Gaz. 168, fraud and undue
influence are mutually repugnant and exclude each other; their joining
as grounds for opposing probate shows absence of definite evidence
against the validity of the will.
On the question of law, we hold that the inadvertent failure of one
witness to affix his signature to one page of a testament, due to the
simultaneous lifting of two pages in the course of signing, is not per se
sufficient to justify denial of probate. Impossibility of substitution of this
page is assured not only the fact that the testatrix and two other
witnesses did sign the defective page, but also by its bearing the
coincident imprint of the seal of the notary public before whom the
testament was ratified by testatrix and all three witnesses. The law
should not be so strictly and literally interpreted as to penalize the
testatrix on account of the inadvertence of a single witness over whose
conduct she had no control, where the purpose of the law to guarantee
the identity of the testament and its component pages is sufficiently
attained, no intentional or deliberate deviation existed, and the
evidence on record attests to the full observance of the statutory
requisites. Otherwise, as stated in Vda. de Gil. vs. Murciano, 49 Off.
Gaz. 1459, at 1479 (decision on reconsideration) "witnesses may
sabotage the will by muddling or bungling it or the attestation clause".
That the failure of witness Natividad to sign page three (3) was entirely
through pure oversight is shown by his own testimony as well as by the
duplicate copy of the will, which bears a complete set of signatures in
every page. The text of the attestation clause and the acknowledgment
before the Notary Public likewise evidence that no one was aware of
the defect at the time.
This would not be the first time that this Court departs from a strict and
literal application of the statutory requirements, where the purposes of
the law are otherwise satisfied. Thus, despite the literal tenor of the
law, this Court has held that a testament, with the only page signed at
its foot by testator and witnesses, but not in the left margin, could
nevertheless be probated (Abangan vs. Abangan, 41 Phil. 476); and
that despite the requirement for the correlative lettering of the pages of
a will, the failure to make the first page either by letters or numbers is
not a fatal defect (Lopez vs. Liboro, 81 Phil. 429). These precedents
exemplify the Court's policy to require satisfaction of the legal
requirements in order to guard against fraud and bid faith but without
undue or unnecessary curtailment of the testamentary privilege.
The appellants also argue that since the original of the will is in
existence and available, the duplicate (Exh. A-1) is not entitled to
probate. Since they opposed probate of original because it lacked one
signature in its third page, it is easily discerned that oppositors-
appellants run here into a dilemma; if the original is defective and
invalid, then in law there is no other will but the duly signed carbon
duplicate (Exh. A-1), and the same is probatable. If the original is valid
and can be probated, then the objection to the signed duplicate need
not be considered, being superfluous and irrelevant. At any rate, said
duplicate, Exhibit A-1, serves to prove that the omission of one
signature in the third page of the original testament was inadvertent
and not intentional.
That the carbon duplicate, Exhibit A-1, was produced and admitted
without a new publication does not affect the jurisdiction of the probate
court, already conferred by the original publication of the petition for
probate. The amended petition did not substantially alter the one first
filed, but merely supplemented it by disclosing the existence of the
duplicate, and no showing is made that new interests were involved
(the contents of Exhibit A and A-1 are admittedly identical); and
appellants were duly notified of the proposed amendment. It is
nowhere proved or claimed that the amendment deprived the
appellants of any substantial right, and we see no error in admitting the
amended petition.
IN VIEW OF THE FOREGOING, the decision appealed from is
affirmed, with costs against appellants.
14. Cagro vs. Cagro (April 29, 1953)
PARAS, C.J.:
This is an appeal interposed by the oppositors from a decision of the
Court of First Instance of Samar, admitting to probate the will allegedly
executed by Vicente Cagro who died in Laoangan, Pambujan, Samar,
on February 14, 1949.
The main objection insisted upon by the appellant in that the will is
fatally defective, because its attestation clause is not signed by the
attesting witnesses. There is no question that the signatures of the
three witnesses to the will do not appear at the bottom of the
attestation clause, although the page containing the same is signed by
the witnesses on the left-hand margin.
We are of the opinion that the position taken by the appellant is
correct. The attestation clause is 'a memorandum of the facts attending
the execution of the will' required by law to be made by the attesting
witnesses, and it must necessarily bear their signatures. An unsigned
attestation clause cannot be considered as an act of the witnesses,
since the omission of their signatures at the bottom thereof negatives
their participation.
The petitioner and appellee contends that signatures of the three
witnesses on the left-hand margin conform substantially to the law and
may be deemed as their signatures to the attestation clause. This is
untenable, because said signatures are in compliance with the legal
mandate that the will be signed on the left-hand margin of all its pages.
If an attestation clause not signed by the three witnesses at the bottom
thereof, be admitted as sufficient, it would be easy to add such clause
to a will on a subsequent occasion and in the absence of the testator
and any or all of the witnesses.
Wherefore, the appealed decision is reversed and the probate of the
will in question denied. So ordered with costs against the petitioner and
appellee.
15. Abangan vs. Abangan, supra
16. Cruz vs. Villasor (November 26, 1973)
ESGUERRA, J.:
Petition to review on certiorari the judgment of the Court of First
Instance of Cebu allowing the probate of the last will and testament of
the late Valente Z. Cruz. Petitioner-appellant Agapita N. Cruz, the
surviving spouse of the said deceased, opposed the allowance of the
will (Exhibit "E"), alleging that the will was executed through fraud,
deceit, misrepresentation and undue influence; that the said instrument
was executed without the testator having been fully informed of the
contents thereof, particularly as to what properties he was disposing;
and that the supposed last will and testament was not executed in
accordance with law. Notwithstanding her objection, the Court allowed
the probate of the said last will and testament. Hence this appeal
by certiorari which was given due course.
The only question presented for determination, on which the decision
of the case hinges, is whether the supposed last will and testament of
Valente Z. Cruz (Exhibit "E") was executed in accordance with law,
particularly Articles 805 and 806 of the new Civil Code, the first
requiring at least three credible witnesses to attest and subscribe to
the will, and the second requiring the testator and the witnesses to
acknowledge the will before a notary public.
Of the three instrumental witnesses thereto, namely, Deogracias T.
Jamaoas, Jr., Dr. Francisco Pañares, and Atty. Angel H. Teves, Jr.,
one of them, the last named, is at the same time the Notary Public
before whom the will was supposed to have been acknowledged.
Reduced to simpler terms, the question was attested and subscribed
by at least three credible witnesses in the presence of the testator and
of each other, considering that the three attesting witnesses must
appear before the notary public to acknowledge the same. As the third
witness is the notary public himself, petitioner argues that the result is
that only two witnesses appeared before the notary public to
acknowledge the will. On the other hand, private respondent-appellee,
Manuel B. Lugay, who is the supposed executor of the will, following
the reasoning of the trial court, maintains that there is substantial
compliance with the legal requirement of having at least three attesting
witnesses even if the notary public acted as one of them, bolstering up
his stand with 57 American Jurisprudence, p. 227 which, insofar as
pertinent, reads as follows:
"It is said that there are practical reasons for upholding a will as against
the purely technical reason that one of the witnesses required by law
signed as certifying to an acknowledgment of the testator’s signature
under oath rather than as attesting the execution of the instrument."
After weighing the merits of the conflicting claims of the parties, We are
inclined to sustain that of the appellant that the last will and testament
in question was not executed in accordance with law. The notary public
before whom the will was acknowledged cannot be considered as the
third instrumental witness since he cannot acknowledge before himself
his having signed the will. To acknowledge before means to avow
(Javellana v. Ledesma, 97 Phil. 258, 262; Castro v Castro, 100 Phil.
239, 247); to own as genuine, to assent, to admit; and "before" means
in front or preceding in space or ahead of. (The New Webster
Encyclopedic Dictionary of the English Language, p. 72; Funk &
Wagnalls New Standard Dictionary of the English Language, p. 252;
Webster’s New International Dictionary 2d. p. 245.) Consequently, if
the third witness were the notary public himself, he would have to
avow, assent, or admit his having signed the will in front of himself.
This cannot be done because he cannot split his personality into two
so that one will appear before the other to acknowledge his
participation in the making of the will. To permit such a situation to
obtain would be sanctioning a sheer absurdity.
Furthermore, the function of a notary public is, among others, to guard
against any illegal or immoral arrangements. Balinon v. De Leon, 50 O.
G. 583.) That function would be defeated if the notary public were one
of the attesting or instrumental witnesses. For them he would be
interested in sustaining the validity of the will as it directly involves
himself and the validity of his own act. It would place him in an
inconsistent position and the very purpose of the acknowledgment,
which is to minimize fraud (Report of the Code Commission p. 106-
107), would be thwarted.
Admittedly, there are American precedents holding that a notary public
may, in addition, act as a witness to the execution of the document he
has notarized. (Mahilum v. Court of Appeals, 64 O. G. 4017; 17 SCRA
482; Sawyer v. Cox, 43 Ill. 130) There are others holding that his
signing merely as a notary in a will nonetheless makes him a witness
thereunder (Ferguson v. Ferguson, 47 S. E. 2d. 346; In Re Douglas’
Will, 83 N. Y. S. 2d. 641; Ragsdal v. Hill, 269 S. W. 2d. 911, Tyson v.
Utterback, 122 So. 496; In Re Baybee’s Estate 160 N. W. 900; Merill v.
Boal, 132 A. 721; See also Trenwith v. Smallwood, 15 So. 1030). But
these authorities do not serve the purpose of the law in this jurisdiction
or are not decisive of the issue herein, because the notaries public and
witnesses referred to in the aforecited cases merely acted as
instrumental, subscribing or attesting witnesses, and not as
acknowledging witnesses. Here the notary public acted not only as
attesting witness but also as acknowledging witness, a situation not
envisaged by Article 805 of the Civil Code which reads:
"ART. 806. Every will must be acknowledged before a notary public by
the testator and the witnesses. The notary public shall not be required
to retain a copy of the will or file another with the office of the Clerk of
Court." [Emphasis supplied]
To allow the notary public to act as third witness, or one of the attesting
and acknowledging witnesses, would have the effect of having only
two attesting witnesses to the will which would be in contravention of
the provisions of Article 805 requiring at least three credible witnesses
to act as such and of Article 806 which requires that the testator and
the required number of witnesses must appear before the notary public
to acknowledge the will. The result would be, as has been said, that
only two witnesses appeared before the notary public for that purpose.
In the circumstances, the law would not be duly observed.
FOR ALL THE FOREGOING, the judgment appealed from is hereby
reversed and the probate of the last will and testament of Valente Z.
Cruz (Exhibit "E") is declared not valid and hereby set aside.
Cost against the appellee.
17. Gabucan vs. Manta (January 28, 1980)
AQUINO, J.:
This case is about the dismissal of a petition for the probate of a
notarial will on the ground that it does not bear a thirty-centavo
documentary stamp.
The Court of First Instance of Camiguin in its "decision" of December
28, 1977 in Special Proceeding No. 41 for the probate of the will of the
late Rogaciano Gabucan, dismissed the proceeding (erroneously
characterizes as an "action")
The proceeding was dismissed because the requisite documentary
stamp was not affixed to the notarial acknowledgment in the will and,
hence, according to respondent Judge, it was not admissible in
evidence, citing section 238 of the Tax Code, now section 250 of the
1977 Tax Code, which reads:
SEC. 238. Effect of failure to stamp taxable document. — An
instrument, document, or paper which is required by law to
be stamped and which has been signed, issued, accepted,
or transferred without being duly stamped, shall not be
recorded, nor shall it or any copy thereof or any record of
transfer of the same be admitted or used in evidence in
any court until the requisite stamp or stamps shall have been
affixed thereto and cancelled.
No notary public or other officer authorized to administer oaths shall
add his jurat or acknowledgment to any document subject to
documentary stamp tax unless the proper documentary stamps are
affixed thereto and cancelled.
The probate court assumed that the notarial acknowledgment of the
said will is subject to the thirty-centavo documentary stamp tax fixed in
section 225 of the Tax Code, now section 237 of the 1977 Tax Code.
Respondent Judge refused to reconsider the dismissal in spite of
petitioner's manifestation that he had already attached the
documentary stamp to the original of the will. (See Mahilum vs. Court
of Appeals, 64 O. G. 4017, 17 SCRA 482, 486.)
The case was brought to this Court by means of a petition for
mandamus to compel the lower court to allow petitioner's appeal from
its decision. In this Court's resolution of January 21, 1980 the petition
for mandamus was treated in the interest of substantial and speedy
justice as an appeal under Republic Act No. 5440 as well as a special
civil action of certiorari under Rule 65 of the Rules of Court.
We hold that the lower court manifestly erred in declaring that,
because no documentary stamp was affixed to the will, there was "no
will and testament to probate" and, consequently, the alleged "action
must of necessity be dismissed".
What the probate court should have done was to require the petitioner
or proponent to affix the requisite thirty-centavo documentary stamp to
the notarial acknowledgment of the will which is the taxable portion of
that document.
That procedure may be implied from the provision of section 238 that
the non-admissibility of the document, which does not bear the
requisite documentary stamp, subsists only "until the requisite stamp or
stamps shall have been affixed thereto and cancelled."
Thus, it was held that the documentary stamp may be affixed at the
time the taxable document is presented in evidence (Del Castillo vs.
Madrilena 49 Phil. 749). If the promissory note does not bear a
documentary stamp, the court should have allowed plaintiff's tender of
a stamp to supply the deficiency. (Rodriguez vs. Martinez, 5 Phil. 67,
71. Note the holding in Azarraga vs. Rodriguez, 9 Phil. 637, that the
lack of the documentary stamp on a document does not invalidate
such document. See Cia. General de Tabacos vs. Jeanjaquet 12 Phil.
195, 201-2 and Delgado and Figueroa vs. Amenabar 16 Phil. 403, 405-
6.)
WHEREFORE, the lower court's dismissal of the petition for probate is
reversed and set aside. It is directed to decide the case on the merits
in the light of the parties' evidence. No costs.
SO ORDERED.
18. Javellana vs. Ledesma (June 30, 1955)
REYES, J.B.L., J.:
By order of July 23, 1953, the Court of First Instance of Iloilo admitted
to probate the documents in the Visayan dialect, marked Exhibits D
and E, as the testament and codicil duly executed by the deceased Da.
Apolinaria Ledesma Vda. de Javellana, on March 30, 1950, and May
29, 1952, respectively, with Ramon Tabiana, Gloria Montinola de
Tabiana and Vicente Yap as witnesses. The contestant, Da. Matea
Ledesma, sister and nearest surviving relative of said deceased,
appealed from the decision, insisting that the said exhibits were not
executed in conformity with law. The appeal was made directly to this
Court because the value of the properties involved exceeded two
hundred thousand pesos.
Originally the opposition to the probate also charged that the testatrix
lacked testamentary capacity and that the dispositions were procured
through undue influence. These grounds were abandoned at the
hearing in the court below, where the issue was concentrated into
three specific questions: (1) whether the testament of 1950 was
executed by the testatrix in the presence of the instrumental witnesses;
(2) whether the acknowledgment clause was signed and the notarial
seal affixed by the notary without the presence of the testatrix and the
witnesses; and (3) if so, whether the codicil was thereby rendered
invalid and ineffective. These questions are the same ones presented the tendency of the mind, in recalling past events, to substitute the
to us for resolution. usual and habitual for what differs slightly from it (II Moore on Facts, p.
878; The Ellen McGovern, 27 Fed. 868, 870).
The contestant argues that the Court below erred in refusing credence
to her witnesses Maria Paderogao and Vidal Allado, cook and driver, At any rate, as observed by the Court below, whether or not the notary
respectively, of the deceased Apolinaria Ledesma. Both testified that signed the certification of acknowledgment in the presence of the
on March 30, 1950, they saw and heard Vicente Yap (one of the testatrix and the witnesses, does not affect the validity of the codicil.
witnesses to the will) inform the deceased that he had brought the Unlike the Code of 1889 (Art. 699), the new Civil Code does not
"testamento" and urge her to go to attorney Tabiana's office to sign it; require that the signing of the testator, witnesses and notary should be
that Da. Apolinaria manifested that she could not go, because she was accomplished in one single act. A comparison of Articles 805 and 806
not feeling well; and that upon Yap's insistence that the will had to be of the new Civil Code reveals that while testator and witnesses sign in
signed in the attorney's office and not elsewhere, the deceased took the presence of each other, all that is thereafter required is that "every
the paper and signed it in the presence of Yap alone, and returned it will must be acknowledged before a notary public by the testator and
with the statement that no one would question it because the property the witnesses" (Art. 806); i.e., that the latter should avow to the
involved was exclusively hers. certifying officer the authenticity of their signatures and the
voluntariness of their actions in executing the testamentary disposition.
This was done in the case before us. The subsequent signing and
Our examination of the testimony on record discloses no grounds for
sealing by the notary of his certification that the testament was duly
reversing the trial Court's rejection of the improbable story of the
acknowledged by the participants therein is no part of the
witnesses. It is squarely contradicted by the concordant testimony of
acknowledgment itself nor of the testamentary act. Hence their
the instrumental witnesses, Vicente Yap, Atty. Ramon Tabiana, and his
separate execution out of the presence of the testatrix and her
wife Gloria Montinola, who asserted under oath that the testament was
witnesses can not be said to violate the rule that testaments should be
executed by testatrix and witnesses in the presence of each other, at
completed without interruption (Andalis vs. Pulgueras, 59 Phil. 643), or,
the house of the decedent on General Hughes St., Iloilo City, on March
as the Roman maxim puts it, "uno codem die ac tempore in eadem
30, 1950. And it is highly unlikely, and contrary to usage, that either
loco", and no reversible error was committed by the Court in so
Tabiana or Yap should have insisted that Da. Apolinaria, an infirm lady
holding. It is noteworthy that Article 806 of the new Civil Code does not
then over 80 years old, should leave her own house in order to execute
contain words requiring that the testator and the witnesses should
her will, when all three witnesses could have easily repaired thither for
acknowledge the testament on the same day or occasion that it was
the purpose. Moreover, the cross-examination has revealed fatal flaws
executed.
in the testimony of Contestant's witnesses. Both claim to have heard
the word "testamento" for the first time when Yap used it; and they
claimed ability to recall that word four years later, despite the fact that The decision admitting the will to probate is affirmed, with costs against
the term meant nothing to either. It is well known that what is to be appellant.
remembered must first be rationally conceived and assimilated (II
Moore on Facts, p. 884). Likewise, Maria Paderogao was positive that
Yap brought the will, and that the deceased alone signed it, precisely
19. Garcia vs. Vasquez
on March 30, 1950; but she could remember no other date, nor give
satisfactory explanation why that particular day stuck in her mind.
SYLLABUS
Worse still, Allado claimed to have heard what allegedly transpired
1. CIVIL LAW; SUCCESSION, WILLS; PROBATE OF WILLS;
between Yap and Da. Apolinaria from the kitchen of the house, that
GROUND FOR DISALLOWANCE; TESTATRIX’S DEFECTIVE
was later proved to have been separated from the deceased's
EYESIGHT AS UNABLING HER TO READ THE PROVISIONS OF
quarters, and standing at a much lower level, so that conversations in
LATER WILL.— The declarations in court of the opthalmologist as to
the main building could not be distinctly heard from the kitchen. Later,
the condition of the testatrix’s eyesight fully establish the fact that her
on redirect examination, Allado sought to cure his testimony by
vision remained mainly for viewing distant objects and not for reading
claiming that he was upstairs in a room where the servants used to eat
print; that she was, at the time of the execution of the second will on
when he heard Yap converse with his mistress; but this correction is
December 29, 1960, incapable of reading and could not have read the
unavailing, since it was plainly induced by two highly leading questions
provisions of the will supposedly signed by her.
from contestant's counsel that had been previously ruled out by the
trial Court. Besides, the contradiction is hardly consonant with this
2. ID.; ID.; ID.; ID.; ID.; IRREGULARITIES IN THE EXECUTION OF
witness' 18 years of service to the deceased.
THE WILL; CASE AT BAR.— Upon its face, the testamentary
provisions, the attestation clause and acknowledgment were crammed
Upon the other hand, the discrepancies in the testimony of the together into a single sheet of paper, apparently to save on space.
instrumental witnesses urged upon us by the contestant-appellant, Plainly, the testament was not prepared with any regard for the
concerning the presence or absence of Aurelio Montinola at the defective vision of Dña. Gliceria, the typographical errors remained
signing of the testament or of the codicil, and the identity of the person uncorrected thereby indicating that the execution thereof must have
who inserted the date therein, are not material and are largely been characterized by haste. It is difficult to understand that so
imaginary, since the witness Mrs. Tabiana confessed inability to important a document containing the final disposition of one’s worldly
remember all the details of the transaction. Neither are we impressed possessions should be embodied in an informal and untidy written
by the argument that the use of some Spanish terms in the codicil and instrument; or that the glaring spelling errors should have escaped her
testament (like legado, partes iguales, plena propiedad) is proof that its notice if she had actually retained the ability to read the purported will
contents were not understood by the testatrix, it appearing in evidence and had done so.
that those terms are of common use even in the vernacular, and that
the deceased was a woman of wide business interests. 3. ID.; ID.; ID.; EXECUTION OF WILLS; REQUISITES FOR VALIDITY;
ART. 808, NEW CIVIL CODE — READING OF THE WILL TWICE TO
A BLIND TESTATOR; PURPOSE.— The rationale behind the
The most important variation noted by the contestants concerns that
requirement of reading the will to the testator if he is blind or incapable
signing of the certificate of acknowledgment (in Spanish) appended to
of reading the will himself is to make the provisions thereof known to
the Codicil in Visayan, Exhibit E. Unlike the testament, this codicil was
him, so that he may be able to object if they are not in accordance with
executed after the enactment of the new Civil Code, and, therefore,
his wishes.
had to be acknowledged before a notary public (Art. 806). Now, the
instrumental witnesses (who happen to be the same ones who attested
4. ID.; ID.; ID.; ID.; ID.; ID.; NOT COMPLIED WITH IN INSTANT
the will of 1950) asserted that after the codicil had been signed by the
CASE.— Where as in the 1960 will there is nothing in the record to
testatrix and the witnesses at the San Pablo Hospital, the same was
show that the requisites of Art. 808 of the Civil Code of the Philippines
signed and sealed by notary public Gimotea on the same occasion. On
that "if the testator is blind, the will shall be read to him twice," have not
the other hand, Gimotea affirmed that he did not do so, but brought the
been complied with, the said 1960 will suffer from infirmity that affects
codicil to his office, and signed and sealed it there. The variance does
its due execution.
not necessarily imply conscious perversion of truth on the part of the
witnesses, but appears rather due to a well-established phenomenon,
5. REMEDIAL LAW; SETTLEMENT OF ESTATE OF DECEASED
PERSONS; ADMINISTRATORS; GROUNDS FOR REMOVAL;
ACQUISITION OF INTEREST ADVERSE TO THAT OF THE ESTATE
MAKES THE ADMINISTRATOR UNSUITABLE TO DISCHARGE THE
TRUST; CASE AT BAR.— Considering that the alleged deed of sale
was executed when Gliceria del Rosario was already practically blind
and that the consideration given seems unconscionably small for the
properties, there was likelihood that a case for annulment might be
filed against the estate or heirs of Alfonso Precilla. And the
administratrix being the widow and heir of the alleged transferee,
cannot be expected to sue herself in an action to recover property that
may turn out to belong to the estate. This, plus her conduct in securing
new copies of the owner’s duplicate of titles without the court’s
knowledge and authority and having the contract bind the land through
issuance of new titles in her husband’s name, cannot but expose her to
the charge of unfitness or unsuitability to discharge the trust, justifying
her removal from the administration of the estate.
6. REMEDIAL LAW; NOTICE OF LIS PENDENS; ACTION MUST
AFFECT "THE TITLE OR THE RIGHT OF POSSESSION OF REAL
PROPERTY." — On the matter of lis pendens, the provisions of the
Rules of Court are clear: notice of the pendency of an action may be
recorded in the office of the register of deeds of the province in which
the property is situated, if the action affects "the title or the right of
possession of (such) real property."cralaw virtua1aw library
7. ID.; ID.; ID.; NOT APPLICABLE TO INSTANT CASE.— The issue in
controversy here is simply the fitness or unfitness of said special
administratrix to continue holding the trust, it does not involve or affect
at all the title to, or possession of, the properties covered by TCT Nos.
81735, 81736 and 81737. Clearly, the pendency of such case (L-
26615) is not an action that can properly be annotated in the record of
the titles to the properties.
DECISION
REYES, J.B.L., J.:
G.R. No. L-27200 is an appeal from the order of the Court of First
Instance of Manila (in Sp. Proc. No. 62618) admitting to probate the
alleged last will an, testament of the late Gliceria Avelino del Rosario
dated 29 December 1960. G.R. Nos. L-26615 and L-2684 are separate
petitions for mandamus filed by certain alleged heirs of said decedent
seeking (1) to compel the probate court to remove Consuelo S.
Gonzales-Precilla as special administratrix of the estate, for conflict of
interest, to appoint a new one in her stead; and (2) to order the
Register of Deeds of Manila to annotate notice of lis pendens in TCT
Nos. 81735, 81736 ,and 81737, registered in the name of Alfonso
Precilla, married to Consuelo Gonzales y Narciso, and said to be
properly belonging to the estate of the deceased Gliceria A. del
Rosario.
Insofar as pertinent to the issues involved herein, the facts of these
cases may be stated as follows:chanrob1es virtual 1aw library
Gliceria Avelino del Rosario died unmarried in the City of Manila on 2
September 1965, leaving no descendents, ascendants, brother or
sister. At the time of her death, she was said to be 90 years old more
or less, and possessed of an estate consisting mostly of real
properties.
On 17 September 1965, Consuelo S. Gonzales Vda. de Precilla, a
niece of the deceased, petitioned the Court of First Instance of Manila
for probate of the alleged last will and testament of Gliceria A. del
Rosario, executed on 29 December 1960, and for her appointment as
special administratrix of the latter’s estate, said to be valued at about
P100,000.00, pending the appointment of a regular administrator
thereof.
The petition was opposed separately by several groups of alleged
heirs: (1) Rev. Fr. Lucio V. Garcia, a legatee named in an earlier will
executed by Gliceria A. del Rosario on 9 June 1956; (2) Jaime Rosario
and children, relatives and legatees in both the 1956 and 1960 wills;
Antonio Jesus de Praga and Marta Natividad de Jesus, wards of the
deceased and legatees in the 1956 and 1960 wills; (3) Remedios,
Encarnacion, and Eduardo, all surnamed Narciso; (4) Natividad del
Rosario-Sarmiento; (5) Maria Narciso; (6) Pascuala Narciso de
Manahan; (7) Severina, Rosa and Josefa, surnamed Narciso, and
Vicente and Delfin, surnamed Mauricio, — the latter five groups of
persons all claiming to be relatives of Doña Gliceria within the fifth civil
degree. The oppositions invariably charged that the instrument
executed in 1960 was not intended by the deceased to be her true will;
that the signatures of the deceased appearing in the will was procured
through undue and improper pressure and influence the part of the
beneficiaries and/or other persons; that the testatrix did not know the
object of her bounty; that the instrument itself reveals irregularities in
its execution, and that the formalities required by law for such
execution have not been complied with.
Oppositor Lucio V. Garcia, who also presented for probate the 1956
will of the deceased, joined the group of Dr. Jaime Rosario in
registering opposition to the appointment of petitioner Consuelo S.
Gonzales Vda. de Precilla as special administratrix, on the ground that
the latter possesses interest adverse to the estate. After the parties
were duly heard, the probate court, in its order of 2 October 1965,
granted petitioner’s prayer and appointed her special administratrix of
the estate upon a bond for P30,000.00. The order was premised on the
fact the petitioner was managing the properties belonging to the estate
even during the lifetime of the deceased, and to appoint another
person as administrator or co administrator at that stage of the
proceeding would only result in further confusion and difficulties.
On 30 September 1965, oppositors Jaime Rosario, Et. Al. filed with the
probate court an urgent motion to require the Hongkong & Shanghai
Bank to report all withdrawals made against the funds of the deceased
after 2 September 1965. The court denied this motion on 22 October
1965 for being premature, it being unaware that such deposit in the
name of the deceased existed.
On 14 December 1965, the same sets of oppositors, Dr. Jaime Rosario
and children, Antonio Jesus de Praga, Natividad de Jesus and Fr.
Lucio V. Garcia, petitioned the court for the immediate removal of the
special administratrix. It was their claim that the special administratrix
and her deceased husband, Alfonso Precilla, 2 had caused Gliceria A.
del Rosario to execute a simulated and fraudulent deed of absolute
sale dated 10 January 1961 allegedly conveying unto said spouses for
the paltry sum of P30,000.00 ownership of 3 parcels of land and the
improvements thereon located on Quiapo and San Nicolas, Manila,
with a total assessed value of P334,050.00. Oppositors contended that
since it is the duty of the administrator to protect and conserve the
properties of the estate, and it may become necessary that, an action
for the annulment of the deed of sale land for recovery of the
aforementioned parcels of land be filed against the special
administratrix, as wife and heir of Alfonso Precilla, the removal of the
said administratrix was imperative.
On 17 December 1965, the same oppositors prayed the court for an
order directing the Special Administratrix to deposit with the Clerk of
Court all certificates of title belonging to the estate. It was alleged that
on 22 October 1965, or after her appointment, petitioner Consuelo
Gonzales Vda. de Precilla, in her capacity as special administratrix of
the estate of the deceased Gliceria A. del Rosario, filed with Branch IV
of the Court of First Instance of Manila a motion for the issuance of
new copies of the owner’s duplicates of certain certificates of title in the
name of Gliceria del Rosario, supposedly needed by her "in the
preparation of the inventory" of the properties constituting the estate.
The motion having been granted, new copies of the owner’s duplicates
of certificates appearing the name of Gliceria del Rosario (among
which were TCT Nos. 66201, 66202 and 66204) were issued on 15
November 1965. On 8 December 1965, according to the oppositors,
the same special administratrix presented to the Register of Deeds the
deed of sale involving properties covered by TCT Nos. 66201, 66202
and 66204 supposedly executed by Gliceria del Rosario on 10 January
1961 in favor of Alfonso Precilla, and, in consequence, said certificates
of title were cancelled and new certificates (Nos. 81735, 81736 and
81737) were issued in the name of Alfonso Precilla, married to
Consuelo S. Gonzales y Narciso.
On 25 August 1966, the Court issued an order admitting to probate the
1960 will of Gliceria A. del Rosario (Exhibit "D"). In declaring the due
execution of the will, the probate court took note that no evidence had
been presented to establish that the testatrix was not of sound mind
when the will was executed; that the fact that she had prepared an
earlier will did not, prevent her from executing another one thereafter;
that the fact that the 1956 will consisted of 12 pages whereas the 1960
testament was contained in one page does not render the latter invalid;
that, the erasures and alterations in the instrument were insignificant to
warrant rejection; that the inconsistencies in the testimonies of the
instrumental witnesses which were noted by the oppositors are even
indicative of their truthfulness. The probate court, also considering that
petitioner had already shown capacity to administer the properties of
the estate and that from the provisions of the will she stands as the
person most concerned and interested therein, appointed said
petitioner regular administratrix with a bond for P50,000.00. From this
order all the oppositors appealed, the case being docketed in this
Court as G.R. No. L-27200.
Then, on 13 September 1966, the probate court resolved the
oppositors’ motion of 14 December 1965 for the removal of the then
special administratrix, as follows:jgc:chanrobles.com.ph
"It would seem that the main purpose of the motion to remove the
special administratrix and to appoint another one in her stead, is in
order that an action may be filed against the special administratrix for
the annulment of the deed of sale executed by the decedent on
January 10, 1961. Under existing documents, the properties sold
pursuant to the said deed of absolute sale no longer forms part of the
estate. The alleged conflict of interest is accordingly not between
different claimants of the same estate. If it is desired by the movants
that an action be filed by them to annul the aforesaid deed absolute
sale, it is not necessary that the special administratrix be removed and
that another one be appointed to file such action. Such a course of
action would only produce confusion and difficulties in the settlement of
the estate. The movants may file the aforesaid proceedings, preferably
in an independent action, to secure the nullity of the deed of absolute
even without leave of this court:"
As regard the motion of 17 December 1965 asking for the deposit in
court of the titles in the name of the decedent, the same was also
denied, for the reason that if the movants were referring to the old
titles, they could no longer be produced, and if they meant the new
duplicate copies thereof that were issued at the instance of the special
administratrix, there would be no necessity therefor, because they
were already cancelled and other certificates were issued in the name
of Alfonso Precilla. This order precipitated the oppositors’ filing in this
Court of a petition for mandamus (G.R. No. L-26615, Rev. Fr. Lucio V.
Garcia, Et. Al. v. Hon. Judge Conrado M. Vasquez, Et. Al.), which was
given due course on 6 October 1966.
On 15 December 1965, with that motion for removal pending in the
court, the oppositors requested the Register of Deeds of Manila to
annotate a notice of lis pendens in the records of TCT Nos. 81735,
81736, and 81737 in the name of Alfonso Precilla. And when said
official refused to do so, they applied to the probate court (in Sp. Proc.
No. 62618) for an order to compel the Register of Deeds to annotate a
lis pendens notice in the aforementioned titles contending that the
matter of removal and appointment of the administratrix, involving TCT
Nos. 81735, 81736, and 81737, was already before the Supreme
Court. Upon denial of this motion on 12 November 1966, oppositors
filed another mandamus action, this time against the probate court and
the Register of Deeds. The case was docketed and given due course
in this Court as G.R. No. L-26864.
Foremost of the questions to be determined here concerns the
correctness of the order allowing the probate of the 1960 will.
The records of the probate proceeding fully establish the fact that the
testatrix, Gliceria A. del Rosario, during her lifetime, executed two wills:
one on 9 June 1956 consisting of 12 pages and written in Spanish, a
language that she knew and spoke, witnessed by Messrs. Antonio
Cabrera, Jesus Y. Ayala and Valentin Marquez, and acknowledged
before notary public Jose Ayala; and another dated 29 December
1960, consisting of 1 page and written in Tagalog, witnessed by
Messrs. Vicente Rosales, Francisco Decena, and Francisco Lopez and
acknowledged before notary public Remigio M. Tividad.
Called to testify on the due execution of the 1960 will, instrumental
witnesses Decena, Lopez and Rosales uniformly declared that they
were individually requested by Alfonso Precilla (the late husband of
petitioner special administratrix) to witness the execution of the last will
of Doña Gliceria A. del Rosario; that they arrived at the house of the
old lady at No. 2074 Azcarraga, Manila, one after the other, in the
afternoon of 29 December 1960; that the testatrix at the time was
apparently of clear and sound mind, although she was being aided by
Precilla when she walked; 3 that the will, which was already prepared,
was first read "silently" by the testatrix herself before she signed it; 4
that he three witnesses thereafter signed the will in the presence of the
testatrix and the notary public and of one another. There is also
testimony that after the testatrix and the witnesses to the will
acknowledged the instrument to be their voluntary act and deed, the
notary public asked for their respective residence certificates which
were handed to him by Alfonso Precilla, clipped together; 5 that after
comparing them with the numbers already written on the will, the
notary public filled in the blanks in the instrument with the date, 29
January 1960, before he affixed his signature and seal thereto. 6 They
also testified that on that occasion no pressure or influence has been
exerted by any person upon the testatrix to execute the will.
Of course, the interest and active participation of Alfonso Precilla in the
signing of this 1960 will are evident from the records. The will
appeared to have been prepared by one who is not conversant with
the spelling of Tagalog words, and it has been shown that Alfonso
Precilla is a Cebuano who speaks Tagalog with a Visayan accent. 7
The witnesses to the will, two of whom are fellow Visayans, 8 admitted
their relationship or closeness to Precilla. 9 It was Precilla who
instructed them to go to the house of Gliceria del Rosario on 29
December 1960 to witness an important document, 10 and who took
their residence certificates from them a few days before the will was
signed. 11 Precilla had met the notary public and witnesses Rosales
and Lopez at the door of the residence of the old woman; he ushered
them to the room at the second floor where the signing of the
document took place; 12 then he fetched witness Decena from the
latter’s haberdashery shop a few doors away and brought him to, the
house the testatrix. 13 And when the will was actually executed
Precilla was present. 14
The oppositors-appellants in the present case, however, challenging
the correctness of the probate court’s ruling, maintain that on 29
December 1960 the eyesight of Gliceria del Rosario was so poor and
defective that she could not have read the provisions of the will,
contrary to the testimonies of witnesses Decena, Lopez and Rosales.
On this point, we find the declarations in court of Dr. Jesus V. Tamesis
very material and illuminating. Said ophthalmologist, whose expertise
was admitted by both parties, testified, among other things, that when
Doña Gliceria del Rosario saw him for consultation on 11 March 1960
he found her left eye to have cataract (opaque lens), 15 and that it was
"above normal in pressure", denoting a possible glaucoma, a disease
that leads to blindness 16 As to the conditions of her right eye, Dr.
Tamesis declared:jgc:chanrobles.com.ph
"Q But is there anything here in the entry appearing in the other
documents Exhibits 3-B, 3-C and 3-D from which you could inform the
court as to the condition of the vision of the patient as to the right eve?
"A Under date of August 30, 1960, is the record of refraction. that is
setting of glass by myself which showed that the right eye with my
prescription of glasses had a vision of 2 over 60 (20/60) and for the left
eye with her correction 20 over 300 (20/300).
"Q In layman’s language, Doctor, what is the significance of that
notation that the right had a degree of 20 over 60 (20/60)?
"A It meant that eye at least would be able to recognize objects or
persons at a minimum distance of twenty feet.
"Q But would that grade enable the patient to read print?
"A Apparently that is only a record for distance vision, for distance
sight, not for near."cralaw virtua1aw library
(pages 20-21, t.s.n., hearing of 23 March 1966)
The records also show that although Dr. Tamesis operated of the left
eye of the decedent at the Lourdes Hospital on 8 August 1960; as of
23 August 1960, inspite of the glasses her vision was only "counting
fingers," 17 at five feet. The cross-examination of the doctor further
elicited the following responses:jgc:chanrobles.com.ph
"Q After she was discharged from the hospital you prescribed lenses
for her, or glasses?

"A After her discharge from the hospital, she was coming to my clinic
for further examination and then sometime later glasses were
prescribed.
x x x have physically read or understood the alleged testament, Exhibit "D",
"Q And the glasses prescribed by you enabled her to read, Doctor?
"A As far as my record is concerned, with the glasses for the left eye
which I prescribed — the eye which I operated — she could see only
forms but not read. That is on the left eye.
"Q How about the right eye?
"A The same, although the vision on the right eye is even better than
the left eye." (pages 34. 85. t.s.n., hearing of 23 March 1966).
Then, confronted with a medical certificate (Exhibit H) issued by him on
29 November 1965 certifying that Gliceria del Rosario was provided
with aphakic lenses and "had been under medical supervision up to
1963 with apparently good vision", the doctor had this to
say:jgc:chanrobles.com.ph
"Q When yon said that she had apparently good vision you mean that
she was able to read?
"A No, not necessarily, only able to go around, take care of herself and
see. This I can tell you, this report was made on pure recollections and
I recall she was using her glasses although I recall also that we have to
give her medicines to improve her vision, some medicines to improve
her identification some more.
x x x "ART. 808. If the testator is blind, the will shall be read to him twice;
"Q What about the vision in the right eve, was that corrected by the
glasses?
"A Yes, with the new prescription which I issued on 80 August 1960. It
is in the clinical record.
"Q The vision in the right eye was corrected?
"A Yes That is the vision for distant objects."cralaw virtua1aw library
(pages 38, 39, 40. t.s.n., hearing of 23 March 1966).
The foregoing testimony of the ophthalmologist who treated the
deceased and, therefore, has first hand knowledge of the actual
condition of her eyesight from August, 1960 up to 1963, fully establish
the fact that notwithstanding the operation and removal of the cataract
in her left eye and her being fitted with aphakic lens (used by cataract
patients), her vision remained mainly for viewing distant objects and
not for reading print. Thus, the conclusion is inescapable that with the
condition of her eyesight in August, 1960, and there is no evidence that
it had improved by 29 December 1960, Gliceria del Rosario was
incapable f reading, and could not have read the provisions of the will
supposedly signed by her on 29 December 1960. It is worth noting that
the instrumental witnesses stated that she read the instrument
"silently" (t.s.n., pages 164-165). which is a conclusion and not a fact.
Against the background of defective eyesight of the alleged testatrix,
the appearance of the will, Exhibit "D", acquires striking significance.
Upon its face, the testamentary provisions, the attestation clause and
acknowledgment were crammed together into a single sheet of paper,
to much so that the words had to be written very close on the top,
bottom and two sides of the paper, leaving no margin whatsoever; the
word "and" had to be written by the symbol" &", apparently to save on
space. Plainly, the testament was not prepared with any regard for the
defective vision of Doña Gliceria. Further, typographical errors like
"HULINH" for "HULING" (last), "Alfonsa" ;or "Alfonso", "MERCRDRS"
for MERCEDES", "instrumental" for "Instrumental", and
"acknowledged" for "acknowledge’’, remained uncorrected, thereby
indicating that execution thereof must have been characterized by
haste. It is difficult to understand that so important a document
containing the final disposition of one’s worldly possessions should be
embodied in an informal and untidily written instrument; or that the
glaring spelling errors should have escaped her notice if she had
actually retained the ability to read the purported will and had done so.
The record is thus convincing that the supposed testatrix could not
and that its admission to probate was erroneous and should be
reversed.
That Doña Gliceria should be able to greet her guests on her birthday,
arrange flowers and attend to kitchen tasks shortly prior to the alleged
execution of the testament Exhibit "D", as appears from the
photographs, Exhibits "E" to "E-1", in no way proves; that she was able
to read a closely typed page, since the acts shown do not require
vision at close range. It must be remembered that with the natural
lenses removed, her eyes had lost the power of adjustment to near
vision, the substituted glass lenses being rigid and uncontrollable by
her. Neither is the signing of checks (Exhibits "G" to "G-3") by her
indicative of ability to see at normal reading distances. Writing or
signing of one’s name, when sufficiently practiced, becomes automatic,
so that one need only to have a rough indication of the place where the
signature is to be affixed in order to be able to write it. Indeed, a close
examination of the checks, amplified in the photograph, Exhibit "O", et
seq., reinforces the contention of oppositors that the alleged testatrix
could not see at normal reading distance: the signatures in the checks
are written far above the printed base, lines, and the names of the
payees as well as the amounts written do not appear to be in the
handwriting of the alleged testatrix, being in a much firmer and more
fluid hand than hers.
Thus, for all intents and purpose of the rules on probate, the deceased
Gliceria del Rosario was, as appellant oppositors contend, not unlike a
blind testator, and the due execution of her will would have required
observance of the provisions of Article 808 of the Civil Code.
once, by one of the subscribing witnesses, and again, by the notary
public before whom the will is acknowledged."cralaw virtua1aw library
The rationale behind the requirement of reading the will to the testator
if he is blind or incapable of reading the will himself (as when he is
illiterate), 18 is to make the provisions thereof known to him, so that he
may be able to object if they are not in accordance with his wishes.
That the aim of the law is to insure that the dispositions of the will are
properly communicated to and understood by the handicapped
testator, thus making them truly reflective of his desire, is evidenced by
the requirement that the will should be read to the latter, not only once
but twice, by two different persons, and that the witnesses have to act
within the range of his (the testator’s) other senses. 19
In connection with the will here in question, there is nothing in the
records to show that the above requisites have been complied with.
Clearly, as already stated, the 1960 will sought to be probated suffers
from infirmity that affects its due execution.
We also find merit in the complaint of oppositors Lucio V. Garcia, Et
Al., against the denial by the probate court of their petition for the
removal of Consuelo Gonzales Vda. de Precilla as special
administratrix of the estate of the deceased Doña Gliceria (Petition,
G.R. No. L-26615, Annex "B").
The oppositors’ petition was based allegedly on the existence in the
special administratrix of an interest adverse to that of the estate. It was
their contention that through fraud her husband had caused the
deceased Gliceria del Rosario to execute a deed of sale, dated 10
January 1961, by virtue of which the latter purportedly conveyed unto
said Alfonso D. Precilla, married to Consuelo Gonzales y Narciso, the
ownership of 3 parcels of land and the improvements thereon,
assessed at P334,050.00, for the sum of P30,000.00.
In denying the petition, the probate court, in its order of 13 September
1966 (Annex "P", Petition) reasoned out that since the properties were
already sold no longer form part of the estate. The conflict of interest
would not be between the estate and third parties, but among the
different claimants of said properties, in which case, according to the
court, the participation of the special administratrix in the action for
annulment that may be brought would not be necessary.
The error in this line of reasoning lies in the fact that what was being
questioned was precisely the validity of the conveyance or sale of the
properties. In short, if proper, the action for annulment would have to
be undertaken on behalf of the estate by the special administratrix,
affecting as it does the property or rights of the deceased. 20 For the
rule is that only where there is no special proceeding for the settlement
of the estate of the deceased may the legal heirs commence an action
arising out of a right belonging to their ancestor. 21
There is no doubt that to settle the question of the due execution and
validity of the deed of sale, an ordinary and separate action would
have to be instituted, the matter not falling within the competence of
the probate court. 22 Considering the facts then before it, i.e., the
alleged deed of sale having been executed by Gliceria del Rosario on
10 January 1961, when she was already practically blind; and that the
consideration of P30,000.00 seems to be unconscionably small for
properties with a total assessed value of P334,050.00, there was
likelihood that a case for annulment might indeed be filed against the
estate or heirs of Alfonso Precilla. And the administratrix, being the
widow and heir of the alleged transferee, cannot be expected to sue
herself in an action to recover property that may turn out to belong to
the estate. 22 Not only this, but the conduct of the special
administratrix in securing new copies of the owner’s duplicates of TCT
Nos. 66201, 66202, and 66204, without the court’s knowledge or
authority, and on the pretext that she needed them in the preparation
of the inventory of the estate, when she must have already known by
then that the properties covered therein were already "conveyed" to
her husband by the deceased, being the latter’s successor, and having
the contract bind the land through issuance of new titles in her
husband’s name cannot but expose her to the charge of unfitness or
unsuitableness to discharge the trust, justifying her removal from the
administration of the estate.
With respect to the orders of the court a quo denying (1) the
oppositors’ motion to require the Hongkong and Shanghai Bank to
report all withdrawals made against the funds of the deceased after 2
September 1965 and (2) the motion for annotation of a lis pendens
notice on TCT Nos. 81735, 81736 and 81737, the same are to be
affirmed.
The probate court pointed out in its order of 22 October 1965 (Annex
"H") that it could not have taken action on the complaint against the
alleged withdrawals from the bank deposits of the deceased, because
as of that time the court had not yet been apprised that such deposits
exist. Furthermore, as explained by the special administratrix in her
pleading of 30 October 1965, the withdrawals referred to by the
oppositors could be those covered by checks issued in the name of
Gliceria del Rosario during her lifetime but cleared only after her death.
That explanation, which not only appears plausible but has not been
rebutted by the petitioners-oppositors, negates any charge of grave
abuse in connection with the issuance of the order here in question.
On the matter of lis pendens (G.R. No. L-26864), the provisions of the
Rules of Court are clear: notice of the pendency of an action may be
recorded in the office of the register of deeds of the province in which
the property is situated, if the action affects "the title or the right of
possession of (such) real property." 23 In the case at bar, the pending
action which oppositors seek to annotate in the records of TCT Nos.
81735, 81736, and 81737 is the mandamus proceeding filed in this
Court (G.R. No. L-26615). As previously discussed in this opinion,
however, that case is concerned merely with the correctness of the
denial by the probate court of the motion for the removal of Consuelo
Gonzales Vda. de Precilla as special administratrix of the estate of the
late Gliceria del Rosario. In short, the issue in controversy there is
simply the fitness or unfitness of said special administratrix to continue
holding the trust; it does not involve or affect at all the title to, or
possession of, the properties covered by said TCT Nos. 81735, 81736
and 81737. Clearly, the pendency of such case (L-26615) is not an
action that can properly be annotated in the record of the titles to the
properties.
FOR THE FOREGOING REASONS, the order of the court below
allowing to probate the alleged 1960 will of Gliceria A. del Rosario is
hereby reversed and set aside. The petition in G.R. No. L-26615 being
meritorious, the appealed order is set aside and the court below is
ordered to remove the administratrix, Consuelo Gonzales Vda. de
Precilla, and appoint one of the heirs intestate of the deceased Doña
Gliceria Avelino del Rosario as special administrator for the purpose of
instituting action on behalf of her estate to recover the properties
allegedly sold by her to the late Alfonso D. Precilla. And in Case G.R.
No. L-26864, petition is dismissed. No costs.
20. Alvarado vs. Gaviola (September 14, 1993)
BELLOSILLO, J.:
Before us is an appeal from the Decision dated 11 April 19861 of the
First Civil Cases Division of the then Intermediate Appellate Court, now
Court of Appeals, which affirmed the Order dated 27 June 19832 of the
Regional Trial Court of Sta. Cruz, Laguna, admitting to probate the last
will and testament3 with codicil4 of the late Brigido Alvarado.
On 5 November 1977, the 79-year old Brigido Alvarado executed a
notarial will entitled "Huling Habilin" wherein he disinherited an
illegitimate son (petitioner) and expressly revoked a previously
executed holographic will at the time awaiting probate before Branch 4
of the Regional Trial Court of sta. Cruz, Laguna.
As testified to by the three instrumental witnesses, the notary public
and by private respondent who were present at the execution, the
testator did not read the final draft of the will himself. Instead, private
respondent, as the lawyer who drafted the eight-paged document, read
the same aloud in the presence of the testator, the three instrumental
witnesses and the notary public. The latter four followed the reading
with their own respective copies previously furnished them.
Meanwhile, Brigido's holographic will was subsequently admitted to
probate on 9 December 1977. On the 29th day of the same month, a
codicil entitled "Kasulatan ng Pagbabago sa Ilang Pagpapasiya na
Nasasaad sa Huling Habilin na may Petsa Nobiembre 5, 1977 ni
Brigido Alvarado" was executed changing some dispositions in the
notarial will to generate cash for the testator's eye operation. Brigido
was then suffering from glaucoma. But the disinheritance and
revocatory clauses were unchanged. As in the case of the notarial will,
the testator did not personally read the final draft of the codicil. Instead,
it was private respondent who read it aloud in his presence and in the
presence of the three instrumental witnesses (same as those of the
notarial will) and the notary public who followed the reading using their
own copies.
A petition for the probate of the notarial will and codicil was filed upon
the testator's death on 3 January 1979 by private respondent as
executor with the Court of First Instance, now Regional Trial Court, of
Siniloan, Laguna.5Petitioner, in turn, filed an Opposition on the
following grounds: that the will sought to be probated was not executed
and attested as required by law; that the testator was insane or
otherwise mentally incapacitated to make a will at the time of its
execution due to senility and old age; that the will was executed under
duress, or influence of fear and threats; that it was procured by undue
and improper pressure and influence on the part of the beneficiary who
stands to get the lion's share of the testator's estate; and lastly, that the
signature of the testator was procured by fraud or trick.
When the oppositor (petitioner) failed to substantiate the grounds relied
upon in the Opposition, a Probate Order was issued on 27 June 1983
from which an appeal was made to respondent court. The main thrust
of the appeal was that the deceased was blind within the meaning of
the law at the time his "Huling Habilin" and the codicil attached thereto
was executed; that since the reading required by Art. 808 of the Civil
Code was admittedly not complied with, probate of the deceased's last
will and codicil should have been denied.
On 11 April 1986, the Court of Appeals rendered the decision under
review with the following findings: that Brigido Alvarado was not blind
at the time his last will and codicil were executed; that assuming his
blindness, the reading requirement of Art. 808 was substantially
complied with when both documents were read aloud to the testator
with each of the three instrumental witnesses and the notary public
following the reading with their respective copies of the instruments.
The appellate court then concluded that although Art. 808 was not
followed to the letter, there was substantial compliance since its
purpose of making known to the testator the contents of the drafted will
was served.
The issues now before us can be stated thus: Was Brigido Alvarado
blind for purpose of Art, 808 at the time his "Huling Habilin" and its
codicil were executed? If so, was the double-reading requirement of
said article complied with?
Regarding the first issue, there is no dispute on the following facts:
Brigido Alvarado was not totally blind at the time the will and codicil
were executed. However, his vision on both eyes was only of "counting
fingers at three (3) feet" by reason of the glaucoma which he had been
suffering from for several years and even prior to his first consultation
with an eye specialist on
14 December 1977.
The point of dispute is whether the foregoing circumstances would
qualify Brigido as a "blind" testator under Art. 808 which reads:
Art. 808. If the testator is blind, the will shall be read to him twice; once,
by one of the subscribing witnesses, and again, by the notary public
before whom the will is acknowledged.
Petitioner contends that although his father was not totally blind when
the will and codicil were executed, he can be so considered within the
scope of the term as it is used in Art. 808. To support his stand,
petitioner presented before the trial court a medical certificate issued
by Dr. Salvador R. Salceda, Director of the Institute of Opthalmology
(Philippine Eye Research Institute),6 the contents of which were
interpreted in layman's terms by Dr. Ruperto Roasa, whose expertise
was admitted by private respondent.7 Dr. Roasa explained that
although the testator could visualize fingers at three (3) feet, he could
no longer read either printed or handwritten matters as of 14
December 1977, the day of his first consultation.8
On the other hand, the Court of Appeals, contrary to the medical
testimony, held that the testator could still read on the day the will and
the codicil were executed but chose not to do so because of "poor
eyesight."9 Since the testator was still capable of reading at that time,
the court a quo concluded that Art. 808 need not be complied with.
We agree with petitioner in this respect.
Regardless of respondent's staunch contention that the testator was
still capable of reading at the time his will and codicil were prepared,
the fact remains and this was testified to by his witnesses, that Brigido
did not do so because of his "poor," 10 "defective," 11 or
"blurred"12 vision making it necessary for private respondent to do the
actual reading for him.
The following pronouncement in Garcia vs. Vasquez 13 provides an
insight into the scope of the term "blindness" as used in Art. 808, to wit:
The rationale behind the requirement of reading the will to the
testator if he is blind or incapable of reading the will himself (as when
he is illiterate), is to make the provisions thereof known to him, so that
he may be able to object if they are not in accordance with his wishes .
..
Clear from the foregoing is that Art. 808 applies not only to blind
testators but also to those who, for one reason or another, are
"incapable of reading the(ir) will(s)." Since Brigido Alvarado was
incapable of reading the final drafts of his will and codicil on the
separate occasions of their execution due to his "poor," "defective," or
"blurred" vision, there can be no other course for us but to conclude
that Brigido Alvarado comes within the scope of the term "blind" as it is
used in Art. 808. Unless the contents were read to him, he had no way
of ascertaining whether or not the lawyer who drafted the will and
codicil did so confortably with his instructions. Hence, to consider his
will as validly executed and entitled to probate, it is essential that we
ascertain whether Art. 808 had been complied with.
Article 808 requires that in case of testators like Brigido Alvarado, the
will shall be read twice; once, by one of the instrumental witnesses
and, again, by the notary public before whom the will was
acknowledged. The purpose is to make known to the incapacitated
testator the contents of the document before signing and to give him
an opportunity to object if anything is contrary to his instructions.
That Art. 808 was not followed strictly is beyond cavil. Instead of the
notary public and an instrumental witness, it was the lawyer (private
respondent) who drafted the eight-paged will and the five-paged codicil
who read the same aloud to the testator, and read them only once, not
twice as Art. 808 requires.
Private respondent however insists that there was substantial
compliance and that the single reading suffices for purposes of the law.
On the other hand, petitioner maintains that the only valid compliance
or compliance to the letter and since it is admitted that neither the
notary public nor an instrumental witness read the contents of the will
and codicil to Brigido, probate of the latter's will and codicil should have
been disallowed.
We sustain private respondent's stand and necessarily, the petition
must be denied.
This Court has held in a number of occasions that substantial
compliance is acceptable where the purpose of the law has been
satisfied, the reason being that the solemnities surrounding the
execution of wills are intended to protect the testator from all kinds of
fraud and trickery but are never intended to be so rigid and inflexible as
to destroy the testamentary privilege. 14
In the case at bar, private respondent read the testator's will and codicil
aloud in the presence of the testator, his three instrumental witnesses,
and the notary public. Prior and subsequent thereto, the testator
affirmed, upon being asked, that the contents read corresponded with
his instructions. Only then did the signing and acknowledgement take
place. There is no evidence, and petitioner does not so allege, that the
contents of the will and codicil were not sufficiently made known and
communicated to the testator. On the contrary, with respect to the
"Huling Habilin," the day of the execution was not the first time that
Brigido had affirmed the truth and authenticity of the contents of the
draft. The uncontradicted testimony of Atty. Rino is that Brigido
Alvarado already acknowledged that the will was drafted in accordance
with his expressed wishes even prior to 5 November 1977 when Atty.
Rino went to the testator's residence precisely for the purpose of
securing his conformity to the draft. 15
Moreover, it was not only Atty. Rino who read the documents on
5 November and 29 December 1977. The notary public and the three
instrumental witnesses likewise read the will and codicil, albeit silently.
Afterwards, Atty. Nonia de la Pena (the notary public) and Dr.
Crescente O. Evidente (one of the three instrumental witnesses and
the testator's physician) asked the testator whether the contents of the
document were of his own free will. Brigido answered in the
affirmative. 16 With four persons following the reading word for word
with their own copies, it can be safely concluded that the testator was
reasonably assured that what was read to him (those which he
affirmed were in accordance with his instructions), were the terms
actually appearing on the typewritten documents. This is especially
true when we consider the fact that the three instrumental witnesses
were persons known to the testator, one being his physician (Dr.
Evidente) and another (Potenciano C. Ranieses) being known to him
since childhood.
The spirit behind the law was served though the letter was not.
Although there should be strict compliance with the substantial
requirements of the law in order to insure the authenticity of the will,
the formal imperfections should be brushed aside when they do not
affect its purpose and which, when taken into account, may only defeat
the testator's will. 17
As a final word to convince petitioner of the propriety of the trial court's
Probate Order and its affirmance by the Court of Appeals, we quote
the following pronouncement in Abangan v. Abangan, 18 to wit:
The object of the solemnities surrounding the execution of wills is to
close the door against bad 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.
21. Cuevas vs. Achacoso (May 18, 1951)
BAUTISTA ANGELO, J.:
This is an appeal from an order of the Court of First Instance of
Zambales admitting to probate the last will and testament of the late
Jose Venzon.
On January 19, 1946, Jose Venzon died in Iba, Zambales, leaving a
will. In said will the deceased instituted as his heirs, Valentina Cuevas,
his widow and Rosario Asera Venzon, his daughter. He named therein
his widow as executrix of the will. On February 1, 1946, Valentina
Cuevas filed a petition for the probate of said will.
On May 10, 1946, one Pilar Achacoso filed an alternative petition for
the probate of a previous will executed by the deceased praying
therein that, if the will submitted by the widow be rejected, the other will
be admitted to probate in lieu thereof. In the previous will there are
other heirs instituted, among them petitioner Pilar Achacoso. Pilar
Achacoso objected to the probate of the second will executed by the
deceased on October 10, 1945. After due hearing, the court found that
the latter will was executed in accordance with law and ordered that it
be admitted to probate. Pilar Achacoso took the case to the Court of
Appeals, but the latter certified it to this Court on the ground that it
involves purely questions of law.
The main error assigned refers to the alleged lack of attestation clause
in the will under consideration, or to the fact that, if there is such
attestation clause, the same has not been signed by the instrumental
witnesses, but by the testator himself, and it is claimed that this defect
has the effect of invalidating the will.
The will in question, after reciting in separate paragraphs, and under
correlative numbers, the provisions of the will, winds up with the
following clause:
IN WITNESS WHEREOF, I sign this testament or last will in
the municipality of Iba, Zambales, Philippines, this 10th day
of October, 1945, in the presence of the three witnesses,
namely Dr. Nestorio Trinidad, Don Baldomero Achacoso,
and Mr. Proceso Cabal as instrumental witnesses to my
signing; this testament is written in three (3) sheets marked
by letter "A", "B" and "C" consecutively on top of each sheet
and upon my request and in my presence and also in the
presence of each of the aforesaid instrumental witnesses,
they also signed this testament already reffered to.
I hereby manifest that every sheet of the aforesaid
testament, on the left-hand margin as well as the testament
itself have been signed by me as also each of the witnesses
has also signed in my presence and in the presence of each
other.
(Sgd.) JOSE VENZON
Witnesses:
(Sgd.)NESTORIO TRINIDAD
(Sgd.) BALDOMERO L. ACHACOSO
(Sgd.) PROCESO CABAL.
The clause above quoted is the attestation clause reffered to in the law
which, in our opinion, substantially complies with its requirements. The
only apparent anomaly we find is that it appears to be an attestation
made by the testator himself more than by the instrumental witnesses.
This apparent anomaly, as to affect the validity of the will, it appearing
that right under the signature of the testator, there appear the
signatures of the three instrumental witnesses.
"Instrumental witness, as define by Escriche in his Diccionario
Razonado de Legislacion y Jurisprudencia, Vol. 4, p. 1115, is one who
takes part in the execution of an instrument or writing" (In re will of Tan
Diuco, 45 Phil., 807, 809). An instrumental witness, therefore, does not
merely attest to the signature of the testator but also to the proper
execution of the will. The fact that the three instrumental witnesses
have signed the will immediately under the signature of the testator,
shows that they have in fact attested not only to the genuineness of his
signature but also to the due execution of the will as embodied in the
attestation clause.
The attestation clause in question bears close similarity with the
attestation clause in the will involved in Aldaba vs. Roque, (43 Phil.,
378). In that case, the attestation claused formed part of the body of
the will and its recital was made by the testratrix himself and was
signed by her and by the three instrumental witnesses. In upholding
the validity of the will, the court said:
In reality it appears that it is the testratrix who makes the declaration
about the points in the last paragraph of the will; however as the
witnesses together with the testratrix, have signed the said declaration,
we are of the opinion and so hold that the words above quoted of the
testament constitute a sufficient compliance with the requirements of
Act No. 2645.
As was said in one case, "the object of the solemnities surrounding the
execution of the wills is to close the door against bad faith and fraud, to
avoid substitution of wills and testaments and to guarantee their truth
and authenticity. Therefore the laws on this subject should be
intrepreted in such a way as to attain this premordial 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." (In re will of Tan Diuco, supra, p. 811.)
(Emphasis supplied.)
Expressive of this liberal view of interpretation, are also the following
rules embodied in the new Civil Code. These provisions, although not
directly applicable, are however, significant because they project the
point of view of our legislature when it adopted them having in view the
existing law and jurisprudence on the matter.
. 788. If a testamentary disposition admits of different interpretations, in
case of doubt, that interpretation by which the disposition is to be
operative shall be preferred.
Art. 791. The words of a will are to receive an interpretation which will
give to every expressions inoperative; and of two modes of interpreting
a will, that is to be preferred which will prevent intestacy.
Wherefore, the order appealed from is hereby affirmed, with costs
against the appellant.
22. Dichoso vs. Gorostiza (October 31, 1932)
MALCOLM, J.:
The will of the deceased Caridad Alcantara de Gorostiza was denied
probate in the trial court, for the reason that the attestation clause
failed to state that the testatrix signed every page of the will as
required by section 618, as amended, of the Code of Civil Procedure.
The attestation clause in question reads:
"We the undersigned attesting witnesses, whose residences are stated
opposite our respective names, do hereby certify that the testatrix,
whose name is signed hereinabove, has publish unto us the foregoing
will consisting of two pages as her Last Will and Testament and has
signed the same in our presence, and in witness whereof we have
each signed the same and each page thereof in the presence of said
testatrix and in the presence of each other." The single question is, if
the attestation clause above quoted is fatally defective and so annuls
the will, or if the said attestation clause conforms to the law and so
permits the court to respect the wishes of the deceased and to sustain
the will.
The theses of the appellant and the appellee are as far apart as the
poles. Appellant says that when the attestation clause mentions "the
testratrix, whose name is signed hereinabove", the word "hereinabove"
should be taken as not only referring to the signature at the end of the
will but to the signatures on the margin of its two pages, and that when
later the attestation clause mentions "the foregoing will consisting of
two pages as her Last Will and Testament, and has signed the same",
the word "same" refers to the two pages of the will and not to the will
itself. Appellee on the other hand maintains that in the attestation
clause, all that has been said about the testatrix, "whose name is
signed hereinabove" is that "she has signed the same (will) in our
(witnesses) presence", and that the attestation clause does not set
forth that the testatrix has signed every page of the will in the presence
of the attesting witnesses.
Placing the attestation clause under the judicial microscope, we
observe, after analytical study, that it shows compliance with statutory
provisions. We must reject as untenable the interpretation of the
appellant relative to the word "hereinabove", for this simply has
reference to the signature of the testatrix at the end of the will. We
must reject also as untenable the interpretation of the appellant that
the word "same" refers back to "pages" and not to "will", for such an
interpretation would be inconsistent with the language used further on
in the attestation clause where mention is made of the signing by the
witnesses of "the same and each page thereof", meaning the will and
each page thereof. We are, however, clear that when the attestation
clause states that the testatrix "has publish unto us the foregoing will
consisting of two pages as her Last Will and Testament, and has
signed the same", the word "same" signifies the foregoing will
consisting of two pages, which necessarily implies the signature by the
testatrix of the will and every page thereof. In our judgment, an
interpretation sustaining the validity of the attestation clause is neither
forced nor illogical.
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 de deduced that the attestation clause
fulfills what the law expects of it.
There is another aspect to the case. Evidence of course may not be
admitted to supply omissions in an attestation clause. The attestation
clause must show on its face a compliance with the law. But this does
not preclude an examination of the will, and here the will itself shows
that the testatrix and the witnesses signed on the left-hand margin of
the two pages; that the testatrix signed at the end of the will, and that
the witnesses signed at the end of the attestation clause. The
attestation clause is a part of the instrument which so closely, if not
literally, adheres to the law of wills.
It has been observed during our deliberations that a decision upholding
the will before us would run counter to a uniform line of authorities to
the contrary. That is hardly an exact statement. The truth is that there
have been noticeable in the Philippines two divergent tendencies in the
law of wills — the one being planted on strict construction and the
other on liberal construction. A late example of the former views may
be found in the decision in Rodriguez vs. Alcala ([1930], 55 Phil., 150),
sanctioning a literal enforcement of the law. The basic case in the
other direction, predicated on reason, is Abangan vs. Abangan ([1919],
40 Phil., 476), oft-cited approvingly in later decisions.
The attestation clause here is an exact transcription of the form found
in former Justice Fisher's New Encyclopedia of Philippine Legal Forms,
third edition, page 495, except that, by typographical error, the word
"published" has been written "publish". So it would be a safe
assumption that there are other wills in this jurisdiction having similar
attestation clauses. A decision against the will in this case might
accordingly have far-reaching and disastrous results.
Legalistic formalities should not be permitted to obscure the use of
good sound common sense in the consideration of wills and to
frustrate the wishes of deceased persons solemnly expressed in
testaments, regarding the execution of which there is not even a hint of
bad faith or fraud. We find the attestation clause legally sufficient, and
order that the will of the deceased Caridad Alcantara de Gorostiza be
admitted to probate.
Judgment reversed, the costs of both instances to be paid by the
appellee.
23. Merza vs. Porras (May 25, 1953)
TUAZON , J.:
This is an appeal from the Court of Appeals which affirmed an order of
the Court of First Instance of Zambales denying the probate of the last
will and testament and so-called codicil, identified as Exhibits A and B,
of Pilar Montealegre, deceased. The testatrix was survived by the
husband and collateral relatives, some of whom, along with the
husband, were disinherited in Exhibit B for the reasons set forth
therein.
The opposition to Exhibit A was predicated on alleged defects of the
attestation clause. Written in the local dialect known to the testatrix, the
attestation clause, as translated into English in the record on appeal,
reads:
The foregoing instrument consisting of three pages, on the
date above-mentioned, was executed, signed and published
by testatrix Pilar Montealegre and she declared that the said
instrument is her last will and testament; that in our presence
and also in the very presence of the said testatrix as likewise
in the presence of two witnesses and the testatrix each of us
three witnesses signed this a testament.
The opponent objected that this clause did not estate that the tetratrix
and the witnesses had signed each and every page of the will or that
she had signed the instrument in the presence of the witnesses. The
Appellate Court dismissed the first objection, finding that "failure to
estate in the attestation clause in question that the testatrix and/or the
witnesses had signed each and every page of Exhibit A were cured by
the fact that each one of the page of the instrument appears to be
signed by the testatrix and the three attesting witnesses
(Nayve vs. Mojal, 47 Phil., 152, (1924); Ticson vs. Gorostiza, 57 Phil.,
(1932); Leynes vs. Leynes, 40 Off. Gaz., 3rd Suppl. (October 18,
1939), 510, 528; Rallos vs. Rallos, 44 Off. Gaz., 4938, 4940)." But
granting the correctness of the premise, the court held the second
objection well taken and thus concluded: "The question whether the
testatrix had signed in the presence of said witnesses can not be
verified upon physical examination of the instrument. Hence, the
absence of the require statement in said clause may not, pursuant to
the decisions of the Supreme Court, be offset by proof aliunde even if
admitted without any objection."
The premise of the conclusion is, in our opinion, incorrect.
It must be admitted that the attestation clause was very poor drawn, its
language exceedingly ungrammatical to the point of being difficult to
understand; but from a close examination of the whole context in
relation to its purpose the implication seems clear that the testatrix
signed in the presence of the witnesses. Considering that the
witnesses' only business at hand was to sign and attest to the
testatrix's signing of the document, and that the only actors of the
proceeding were the maker and the witnesses acting and speaking
collectively and in the first person, the phrase "in our presence," used
as it was in connection with the process of signing, can not imply
anything but the testatrix signed before them. No other inference is
possible. The prepositional phrase "in our presence" denotes an active
verb and the verb a subject. The verb could not be other than signed
and the subject no other than the testatrix.
The use of the word "also" is no less enlightening. It denotes that, as
each of the witnesses sign in the presence of the testatrix and of one
another, so the testatrix sign in similar or like manner — in their
presence.
In consonance with the principle of the liberal interpretation, adhered to
in numerous later decision of this Court and affirmed and translated
into inactment in the new Civil Code (Article 827), we are constrained
to hold the attestation clause under consideration sufficient and valid.
"Precision of language in the drafting of the attestation clause is
desirable. However, it is not imperative that a parrot-like copy of the
word of the statue 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." (Ticson vs. Gorostiza, supra.)
"It could have been the intention of the legislature in providing for the
essential safeguards in the execution of a will to shackle the very right
of the testamentary disposition which the law recognizes and holds
sacred." (Leynes vs.Leynes, supra.)
With reference of Exhibit B the Court of Appeal agreed with the trial
court that the document having been executed one day before Exhibit
A could not be considered as a codicil "because a codicil, as the word
implies, is only an addition to, or modification of, the will." The Court of
Appeals added that "the content of Exhibit B are couched in the
language of ordinarily used in a simple affidavit and as such, may not
have the legal effect and force to a testamentary disposition."
Furthermore, the Court of Appeals observed, disinheritance "may not
be made in any instrument other than the will of Exhibit A, as expressly
provided for in article 849 of the Civil Code," and, "there being no
disposition as to the disinheritance of the oppositor, Pedro Lopez
Porras (the surviving spouse), in the said Exhibit A, it is quite clear that
he can not be disinherited in any other instrument including Exhibit B,
which is, as above stated, a simple affidavit."
Exhibit B does partake of the nature of a will. A will is defined in article
667 of the Civil code of Spain as "the act by which a persons dispose
of all his property or a portion of it," and in article 783 of the new Civil
Code as "an act whereby a person is permitted, with the formalities
prescribed by law, to control to a certain degree the disposition of his
estate, to take effect after his death. Exhibit B comes within this
definition.
Being of testamentary character and having been made with all the
formalities of law, Exhibit B is entitled to probate as an independent
testementary desposition. In the absence of any legal provision to the
contrary — and there is none in this jurisdiction — it is the general,
well-established rule that two separate and distinct wills may be
probated if one does not revoke the other (68 C.J., 885) and provided
that the statutory requirements relative to the execution of wills have
been complied with (Id. 881). As seen, Exhibit B embodied all the
requisites of a will, even free of such formal of literary imperfections as
are found in Exhibit A.
It also follows that Exhibit B is a legal and effective vehicle for
excluding lawful heirs from testate or intestate succession. Article 849
of the Civil Code of Spain does not, as the appealed decision seems to
insinuate, require that the disinheritance should be accomplished in the
same instrument by which the maker provides the disposition of his or
her property after his or death. This article merely provides that
"disinheritance can be affected only by a will (any will) in which the
legal cause upon which it is based is expressly stated."
It is our judgment therefore that the instruments Exhibit A and B
admitted to probate, subject of courts to the right of the disinherited
person under particle 850 to contest the disinheritance, and it is so
ordered, with costs against the appellee.
24. Gan vs. Yap (August 30, 1958)
BENGZON, J.:
On November 20, 1951, Felicidad Esguerra Alto Yap died of heart
failure in the University of Santo Tomas Hospital, leaving properties in
Pulilan, Bulacan, and in the City of Manila.
On March 17, 1952, Fausto E. Gan initiated them proceedings in the
Manila court of first instance with a petition for the probate of a
holographic will allegedly executed by the deceased, substantially in
these words:
Nobyembre 5, 1951.
Ako, si Felicidad E. Alto-Yap, may asawa, at ganap na pag-
iisip, ay nagsasalaysay na ang aking kayamanan sa bayan
ng Pulilan, Bulacan ay aking ipinamamana sa aking mga
kamag-anakang sumusunod:
Vicente Esguerra, Sr. ............................................. 5
Fausto E. Gan ......................................................... 2
Rosario E. Gan ......................................................... 2
Filomena Alto .......................................................... 1
Beatriz Alto .............................................................. 1
At ang aking lahat ng ibang kayamanan sa Maynila at iba
panglugar ay aking ipinamamana sa aking asawang si
Idelfonso D. Yap sa kondisyong siya'y magpapagawa ng
isang Health Center na nagkakahalaga ng di kukulangin sa
halagang P60,000.00 sa bayan ng Pulilan, Bulacan, na
nakaukit ang aking pangalang Felicidad Esguerra-Alto. At
kung ito ay may kakulangan man ay bahala na ang aking
asawa ang magpuno upang matupad ang aking kagustuhan.
(Lagda) Felicidad E. Alto-Yap.
Opposing the petition, her surviving husband Ildefonso Yap asserted
that the deceased had not left any will, nor executed any testament
during her lifetime.
After hearing the parties and considering their evidence, the Hon.
Ramon R. San Jose, Judge,1 refused to probate the alleged will. A
seventy-page motion for reconsideration failed. Hence this appeal.
The will itself was not presented. Petitioner tried to establish its
contents and due execution by the statements in open court of Felina
Esguerra, Primitivo Reyes, Socorro Olarte and Rosario Gan Jimenez,
whose testimonies may be summarized as follows:
Sometime in 1950 after her last trip abroad, Felicidad Esguerra
mentioned to her first cousin, Vicente Esguerra, her desire to make a
will. She confided however that it would be useless if her husband
discovered or knew about it. Vicente consulted with Fausto E. Gan,
nephew of Felicidad, who was then preparing for the bar examinations.
The latter replied it could be done without any witness, provided the
document was entirely in her handwriting, signed and dated by her.
Vicente Esguerra lost no time in transmitting the information, and on
the strength of it, in the morning of November 5, 1951, in her residence
at Juan Luna Street, Manila, Felicidad wrote, signed and dated a
holographic will substantially of the tenor above transcribed, in the
presence of her niece, Felina Esguerra (daughter of Vicente), who was
invited to read it. In the afternoon of that day, Felicidad was visited by a
distant relative, Primitivo Reyes, and she allowed him to read the will in
the presence of Felina Esguerra, who again read it.
Nine days later, he had other visitors: Socorro Olarte a cousin, and
Rosario Gan Jimenez, a niece. To these she showed the will, again in
the presence of Felina Esguerra, who read it for the third time.
When on November 19, 1951, Felicidad was confined at the U.S.T.
Hospital for her last illness, she entrusted the said will, which was
contained in a purse, to Felina Esguerra. But a few hours later,
Ildefonso Yap, her husband, asked Felina for the purse: and being
afraid of him by reason of his well-known violent temper, she delivered
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
Felicidad. Again, Felina handed it to him but not before she had taken
the purse to the toilet, opened it and read the will for the last time. 2
From the oppositor's proof it appears that Felicidad Esguerra had been
suffering from heart disease for several years before her death; that
she had been treated by prominent physicians, Dr. Agerico Sison, Dr.
Agustin Liboro and others; that in May 1950 husband and wife
journeyed to the United States wherein for several weeks she was
treated for the disease; that thereafter she felt well and after visiting
interesting places, the couple returned to this country in August 1950.
However, her ailment recurred, she suffered several attacks, the most
serious of which happened in 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 occupying the
lower floors and of by the Yap spouses. Physician's help was hurriedly
called, and Dr. Tanjuaquio arrived at about 8:00 a.m., found the patient
hardly breathing, lying in bed, her head held high by her husband.
Injections and oxygen were administered. Following the doctor's advice
the patient stayed in bed, and did nothing the whole day, her husband
and her personal attendant, Mrs. Bantique, constantly at her side.
These two persons swore that Mrs. Felicidad Esguerra Yap made no
will, and could have made no will on that day.
The trial judge refused to credit the petitioner's evidence for several
reasons, the most important of which were these: (a) if according to his
evidence, the decedent wanted to keep her will a secret, so that her
husband would not know it, it is strange she executed it in the
presence of Felina Esguerra, knowing as she did that witnesses were
unnecessary; (b) in the absence of a showing that Felina was a
confidant of the decedent it is hard to believe that the latter would have
allowed the former to see and read the will several times; (c) it is
improbable that the decedent would have permitted Primitivo Reyes,
Rosario Gan Jimenez and Socorro Olarte to read her will, when she
precisely wanted its contents to remain a secret during her lifetime; (d)
it is also improbable that her purpose being to conceal the will from her
husband she would carry it around, even to the hospital, in her purse
which could for one reason or another be opened by her husband; (e)
if it is true that the husband demanded the purse from Felina in the
U.S.T. Hospital and that the will was there, it is hard to believe that he
returned it without destroying the will, the theory of the petitioner being
precisely that the will was executed behind his back for fear he will
destroy it.
In the face of these improbabilities, the trial judge had to accept the
oppositor's evidence that Felicidad did not and could not have
executed such holographic will.
In this appeal, the major portion of appellant's brief discussed the
testimony of the oppositor and of his witnesses in a vigorous effort to
discredit them. It appears that the same arguments, or most of them,
were presented in the motion to reconsider; but they failed to induce
the court a quo to change its mind. The oppositor's brief, on the other
hand, aptly answers the criticisms. We deem it unnecessary to go over
the same matters, because in our opinion the case should be decided
not on the weakness of the opposition but on the strength of the
evidence of the petitioner, who has the burden of proof.
The Spanish Civil Code permitted the execution of holographic wills
along with other forms. The Code of Civil Procedure (Act 190)
approved August 7, 1901, adopted only one form, thereby repealing
the other forms, including holographic wills.
The New Civil Code effective in 1950 revived holographic wills in its
arts. 810-814. "A person may execute a holographic will which must be
entirely written, dated, and signed by the hand of the testator himself. It
is subject to no other form and may be made in or out of the
Philippines, and need not be witnessed."
This is indeed a radical departure from the form and solemnities
provided for wills under Act 190, which for fifty years (from 1901 to
1950) required wills to be subscribed by the testator and three credible
witnesses in each and every page; such witnesses to attest to the
number of sheets used and to the fact that the testator signed in their
presence and that they signed in the presence of the testator and of
each other.
The object of such requirements it has been said, is to close the door
against bad faith and fraud, to prevent substitution of wills, to
guarantee their truth and authencity (Abangan vs. Abangan, 40 Phil.,
476) and to avoid those who have no right to succeed the testator
would succeed him and be benefited with the probate of same.
(Mendoza vs. Pilapil, 40 Off. Gaz., 1855). However, formal
imperfections may be brushed aside when authenticity of the
instrument is duly proved. (Rodriguez vs Yap, 40 Off. Gaz. 1st Supp.
No. 3 p. 194.)
Authenticity and due execution is the dominant requirements to be
fulfilled when such will is submitted to the courts for allowance. For that
purpose the testimony of one of the subscribing witnesses would be
sufficient if there is no opposition (Sec. 5, Rule 77). If there is, the three
must testify, if available. (Cabang vs. Delfinado, 34 Phil., 291;
Tolentino vs. Francisco, 57 Phil., 742). From the testimony of such
witnesses (and of other additional witnesses) the court may form its
opinion as to the genuineness and authenticity of the testament, and
the circumstances its due execution.
Now, in the matter of holographic wills, no such guaranties of truth and
veracity are demanded, since as stated, they need no witnesses;
provided however, that they are "entirely written, dated, and signed by
the hand of the testator himself." The law, it is reasonable to suppose,
regards the document itself as material proof of authenticity, and as its
own safeguard, since it could at any time, be demonstrated to be — or
not to be — in the hands of the testator himself. "In the probate of a
holographic will" says the New Civil Code, "it shall be necessary that at
least one witness who knows the handwriting and signature of the
testator explicitly declare that the will and the signature are in the
handwriting of the testator. If the will is contested, at least three such
witnesses shall be required. In the absence of any such witnesses,
(familiar with decedent's handwriting) and if the court deem it
necessary, expert testimony may be resorted to."
The witnesses so presented do not need to have seen the execution of
the holographic will. They may be mistaken in their opinion of the
handwriting, or they may deliberately lie in affirming it is in the
testator's hand. However, the oppositor may present other witnesses
who also know the testator's handwriting, or some expert witnesses,
who after comparing the will with other writings or letters of the
deceased, have come to the conclusion that such will has not been
written by the hand of the deceased. (Sec. 50, Rule 123). And the
court, in view of such contradictory testimony may use its own visual
sense, and decide in the face of the document, whether the will
submitted to it has indeed been written by the testator.
Obviously, when the will itself is not submitted, these means of
opposition, and of assessing the evidence are not available. And then
the only guaranty of authenticity3 — the testator's handwriting — has
disappeared.
Therefore, the question presents itself, may a holographic will be
probated upon the testimony of witnesses who have allegedly seen it
and who declare that it was in the handwriting of the testator? How can
the oppositor prove that such document was not in the testator's
handwriting? His witnesses who know testator's handwriting have not
examined it. His experts can not testify, because there is no way to
compare the alleged testament with other documents admittedly, or
proven to be, in the testator's hand. The oppositor will, therefore, be
caught between the upper millstone of his lack of knowledge of the will
or the form thereof, and the nether millstone of his inability to prove its
falsity. Again the proponent's witnesses may be honest and truthful;
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 be perjurers boldly testifying, in
the knowledge that none could convict them of perjury, because no
one could prove that they have not "been shown" a document
which they believed was in the handwriting of the deceased. Of course,
the competency of such perjured witnesses to testify as to the
handwriting could be tested by exhibiting to them other writings
sufficiently similar to those written by the deceased; but what witness
or lawyer would not foresee such a move and prepare for it? His
knowledge of the handwriting established, the witness (or witnesses)
could simply stick to his statement: he has seen and read a document
which he believed was in the deceased's handwriting. And the court
and the oppositor would practically be at the mercy of such witness (or
witnesses) not only as to the execution, but also as to the contents of
the will. Does the law permit such a situation?
The Rules of Court, (Rule 77) approved in 1940 allow proof (and
probate) of a lost or destroyed will by secondary — evidence the
testimony of witnesses, in lieu of the original document. Yet such Rules
could not have contemplated holographic wills which could not then be
validly made here. (See also Sec. 46, Rule 123; Art. 830-New Civil
Code.)
Could Rule 77 be extended, by analogy, to holographic wills?
Spanish commentators agree that one of the greatest objections to the
holographic will is that it may be lost or stolen4 — an implied admission
that such loss or theft renders it useless..
This must be so, because the Civil Code requires it to be protocoled
and presented to the judge, (Art. 689) who shall subscribe it and
require its identity to be established by the three witnesses who
depose that 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 that it be filed (Art. 693). All these,
imply presentation of the will itself. Art. 692 bears the same implication,
to a greater degree. It requires that the surviving spouse and the
legitimate ascendants and descendants be summoned so that they
may make "any statement they may desire to submit with respect to
the authenticity of the will." As it is universally admitted that the
holographic will is usually done by the testator and by himself alone, to
prevent others from knowing either its execution or its contents, the
above article 692 could not have the idea of simply permitting such
relatives to state whether they know of the will, but whether in the face
of the document itself they think the testator wrote it. Obviously, this
they can't do unless the will itself is presented to the Court and to
them.
Undoubtedly, the intention of the law is to give the near relatives the
choice of either complying with the will if they think it authentic, or to
oppose it, if they think it spurious.5 Such purpose is frustrated when the
document is not presented for their examination. If it be argued that
such choice is not essential, because anyway the relatives may
oppose, the answer is that their opposition will be at a distinct
disadvantage, and they have the right and privilege to comply with the
will, if genuine, a right which they should not be denied by withholding
inspection thereof from them.
We find confirmation of these ideas--about exhibition of the document
itself--in the decision of the Supreme Court of Spain of June 5, 1925,
which denied protocolization or probate to a document containing
testamentary dispositions in the handwriting of the deceased, but
apparently mutilated, the signature and some words having been torn
from it. Even in the face of allegations and testimonial evidence (which
was controverted), ascribing the mutilation to the opponents of the will.
The aforesaid tribunal declared that, in accordance with the provision
of the Civil Code (Spanish) the will itself, whole and unmutilated, must
be presented; otherwise, it shall produce no effect.
Considerando que sentado lo anterior, y estableciendose en
el parrafo segundo del articulo 688 del Codigo civil, que para
que sea valido el testamento olografo debera estar escrito
todo el y firmado por testador, con expression del año, mes
y dia en que se otorque, resulta evidente que para la validez
y eficacia de esos testamentos, no basta la demostracion
mas o menos cumplida de que cuando se otorgaron se
Ilenaron todos esos requisitos, sino que de la expresada
redaccion el precepto legal, y por el tiempo en que el verbo
se emplea, se desprende la necesidad de que el documento
se encuentre en dichas condiciones en el momento de ser
presentado a la Autoridad competente, para au adveracion y
protocolizacion; y como consecuencia ineludible de ello,
forzoso es affirmar que el de autos carece de validez y
aficacia, por no estarfirmado por el testador, cualquiera que
sea la causa de la falta de firma, y sin perjuicio de las
acciones que puedan ejercitar los perjudicados, bien para
pedir indemnizacion por el perjuicio a la persona culpable, si
la hubiere, o su castigo en via criminal si procediere,
por constituir dicha omision un defecto insubsanable . . . .
This holding aligns with the ideas on holographic wills in the Fuero
Juzgo, admittedly the basis of the Spanish Civil Code provisions on the
matter.6
PRECEDENTES LEGALES--Fuero Juzgo, libro segundo,
titulo V, ley 15--E depues que los herederos e sus fijos
ovieren esta manda, fasta ... annos muestrenla al obispo de
la tierra, o al juez fasta VI meses y el obispo o el juez tomen
otros tales tres escritos, que fuesen fechos por su mano
daquel que fizo la manda; e por aquellos escriptos, si
semjara la letra de la manda, sea confirmada la manda. E
depues que todo esto fuere connoscido, el obispo o el juez,
o otras testimonios confirmen el escripto de la manda otra
vez, y en esta manera vala la manda. (Art. 689, Scaevola--
Codigo Civil.)
(According to the Fuero above, the will itself must be compared with
specimens of the testators handwriting.)
All of which can only mean: the courts will not distribute the property of
the deceased in accordance with his holographic will, unless they are
shown his handwriting and signature.7
Parenthetically, it may be added that even the French 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 the conclusion
that the execution and the contents of a lost or destroyed holographic
will may not be proved by the bare testimony of witnesses who have
seen and/or read such will.8
Under the provisions of Art. 838 of the New Civil Code, we are
empowered to adopt this opinion as a Rule of Court for the allowance
of such holographic wills. We hesitate, however, to make this Rule
decisive of this controversy, simultaneously with its promulgation.
Anyway, decision of the appeal may rest on the sufficiency, rather the
insufficiency, of the evidence presented by petitioner Fausto E. Gan.
At this point, before proceeding further, it might be convenient to
explain why, unlike holographic wills, ordinary wills may be proved by
testimonial evidence when lost or destroyed. The difference lies in the
nature of the wills. In the first, the only guarantee of authenticity is the
handwriting itself; in the second, the testimony of the subscribing or
instrumental witnesses (and of the notary, now). The loss of the
holographic will entails the loss of the only medium of proof; if the
ordinary will is lost, the subscribing witnesses are available to
authenticate.
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.
Turning now to the evidence presented by the petitioner, we find
ourselves sharing the trial judge's disbelief. In addition to the dubious
circumstances described in the appealed decision, we find it hard to
believe that the deceased should show her will precisely to relatives
who had received nothing from it: Socorro Olarte and Primitivo Reyes.
These could pester her into amending her will to give them a share, or
threaten to reveal its execution to her husband Ildefonso Yap. And this
leads to another point: if she wanted so much to conceal the will from
her husband, why did she not entrust it to her beneficiaries?
Opportunity to do so was not lacking: for instance, her husband's trip to
Davao, a few days after the alleged execution of the will.
In fine, even if oral testimony were admissible to establish and probate
a lost holographic will, we think the evidence submitted by herein
petitioner is so tainted with improbabilities and inconsistencies that it
fails to measure up to that "clear and distinct" proof required by Rule
77, sec. 6.11
Wherefore, the rejection of the alleged will must be sustained.
Judgment affirmed, with costs against petitioner.
25. Azaola vs. Singson (August 5, 1960)
REYES, J.B.L., J.:
This appeal, taken on points of law from a decision rendered on 15
January 1958 by the Court of First Instance of Quezon City in its
Special Proceedings No. Q-2640, involves the determination of the
quantity of evidence required for the probate of a holographic will.
The established facts are thus summarized in the decision appealed
from (Rec. App. pp. 22-24):
"Briefly speaking, the following facts were established by the
petitioner; that on September 9, 1957, Fortunata S. Vda. de
Yance died at 13 Luskot, Quezon City, known to be the last
residence of said testatrix; that Francisco Azaola, petitioner
herein for probate of the holographic will, submitted the said
holographic will (Exh. C) whereby Maria Milagros Azaola
was made the sole heir as against the nephew of deceased
Cesario Singson; that witness Francisco Azaola testified that
he saw the holographic will (Exh. C) one month, more or
less, before the death of the testatrix, as the same was
handed to him and his wife; that the witness testified also
that he recognized all the signatures appearing in the
holographic will (Exh. C) as the handwriting of the testatrix
and to reinforce said statement, witness presented the
mortgage (Exh. E), the special power of the attorney (Exh.
F), and the general power of attorney (Exh. F-1), besides the
deeds of sale (Exhs. G and G-1) including an affidavit (Exh.
G-2), and that there were further exhibited in court two
residence certificates (Exhs. H and H-1) to show the
signatures of the testatrix, for comparison purposes; that
said witness, Azaola, testified that the penmanship
appearing in the aforesaid documentary evidence is in the
handwriting of the testatrix as well as the signatures
appearing in the aforesaid documentary evidence is in the
handwriting of the testatrix as well as the signatures
appearing therein are the signatures of the testatrix; that said
witness, in answer to a question of his counsel admitted that
the holographic will was handed to him by the testatrix.
"apparently it must have been written by her" (t.s.n., p. 11).
However, on page 16 on the same transcript of the
stenographic notes, when the same witness was asked by
counsel if he was familiar with the penmanship and
handwriting of the deceased Fortunata Vda. de Yance, he
answered positively in the affirmative and when he was
asked again whether the penmanship referred to in the
previous answer as appearing in the holographic will (Exh.
C) was hers (testatrix'), he answered, "I would definitely say
it is hers"; that it was also established in the proceedings that
the assessed value of the property of the deceased in
Luskot, Quezon City, is in the amount of P7,000.00.
The opposition to the probate was on the ground that (1) the execution
of the will was procured by undue and improper pressure and influence
on the part of the petitioner and his wife, and (2) that the testatrix did
not seriously intend the instrument to be her last will, and that the
same was actually written either on the 5th or 6th day of August 1957
and not on November 20, 1956 as appears on the will.
The probate was denied on the ground that under Article 811 of the
Civil Code, the proponent must present three witnesses who could
declare that the will and the signature are in the writing of the testatrix,
the probate being contested; and because the lone witness presented
by the proponent "did not prove sufficiently that the body of the will was
written in the handwriting of the testatrix."
The proponent appealed, urging: first, that he was not bound to
produce more than one witness because the will's authenticity was not
questioned; and second, that Article 811 does not mandatorily require
the production of three witnesses to identify the handwriting and
signature of a holographic will, even if its authenticity should be denied
by the adverse party.
Article 811 of the Civil Code of the Philippines is to the following effect:
ART. 811. In the probate of a holographic will, it shall be
necessary that at least one witness who knows the
handwriting and signature of the testator explicitly declare
that the will and the signature are in the handwriting of the
testator. If the will is contested, at least three of such
witnesses shall be required.
In the absence of any competent witnesses referred to in the
preceding paragraph, and if the court deems it necessary,
expert testimony may be resorted to. (691a).
We agree with the appellant that since the authenticity of the will was
not contested, he was not required to produce more than one witness;
but even if the genuineness of the holographic will were contested, we
are of the opinion that Article 811 of our present Civil Code can not be
interpreted as to require the compulsory presentation of three
witnesses to identify the handwriting of the testator, under penalty of
having the probate denied. Since no witness may have been present at
the execution of a holographic will, none being required by law (Art.
810, new Civil Code), it becomes obvious that the existence of witness
possessing the requisite qualifications is a matter beyond the control of
the proponent. For it is not merely a question of finding and producing
any three witnesses; they must be witnesses "who know the
handwriting and signature of the testator" and who can declare
(truthfully, of course, even if the law does not so express) "that the will
and the signature are in the handwriting of the testator". There may be
no available witness of the testator's hand; or even if so familiarized,
the witnesses may be unwilling to give a positive opinion. Compliance
with the rule of paragraph 1 of Article 811 may thus become an
impossibility. That is evidently the reason why the second paragraph of
Article 811 prescribes that —
La manera como esta concebida la redaccion del ultimo
apartado de dicho precepto induce la conclusion de que
siempre o por lo menos, en la mayor parte de los casos, el
Juez debe acudir al criterio pericial para que le ilustre acerca
de la autenticidad del testamento olografo, aunque ya esten
insertas en los autos del expediente las declaraciones
testificales. La prudencia con que el Juez debe de proceder
en resoluciones de transcendencia asi lo exige, y la indole
delicada y peligrosa del testamento olografo lo hace
necesario para mayor garantia de todos los interes
comprometidos en aquel.
En efecto, el cotejo pericial de letras puede ser una
confirmacion facultativa del dicho profano de los testigos y
un modo de desvanecer las ultimas dudas que pudieran
ocurrir al Juez acerca de la autenticidad que trata de
averigaur y declarar. Para eso se ha escrito la frase del
citado ultimo apartado, (siempre que el Juez lo estime
conveniente), haya habido o no testigos y dudaran o no
estos respecto de los extremos por que son preguntados.
El arbitrio judicial en este caso debe formarse con
independencia de los sucesos y de su significacion, para
responder debidamente de las resoluciones que haya de
dictar.
And because the law leaves it to the trial court if experts are still
needed, no unfavourable inference can be drawn from a party's failure
to offer expert evidence, until and unless the court expresses
dissatisfaction with the testimony of the lay witnesses.
Our conclusion is that the rule of the first paragraph of Article 811 of
the Civil Code is merely directory and is not mandatory.

in the absence of any competent witness referred to in the

Considering, however, that this is the first occasion in which this Court
preceding paragraph, and if the court deems it necessary,
has been called upon to construe the import of said article, the interest
expert testimony may be resorted to.
of justice would be better served, in our opinion, by giving the parties
ample opportunity to adduce additional evidence, including expert
As can be seen, the law foresees the possibility that no qualified witnesses, should the Court deem them necessary.
witness may be found (or what amounts to the same thing, that no
competent witness may be willing to testify to the authenticity of the
In view of the foregoing, the decision appealed from is set aside, and
will), and provides for resort to expert evidence to supply the
the records ordered remanded to the Court of origin, with instructions
deficiency.
to hold a new trial in conformity with this opinion. But evidence already
on record shall not be retaken. No costs.
It may be true that the rule of this article (requiring that three witnesses
be presented if the will is contested and only one if no contest is had)
was derived from the rule established for ordinary testaments (cf.
26. Rodelas vs. Aranza (December 7, 1982)
Cabang vs. Delfinado, 45 Phil., 291; Tolentino vs. Francisco, 57 Phil.,
RELOVA, J.:
742). But it can not be ignored that the requirement can be considered
This case was certified to this Tribunal by the Court of Appeals for final
mandatory only in the case of ordinary testaments, precisely because
determination pursuant to Section 3, Rule 50 of the Rules of Court.
the presence of at least three witnesses at the execution of ordinary
wills is made by law essential to their validity (Art. 805). Where the will
is holographic, no witness need be present (Art. 10), and the rule As found by the Court of Appeals:
requiring production of three witnesses must be deemed merely
permissive if absurd results are to be avoided.
... On January 11, 1977, appellant filed a petition with the
Court of First Instance of Rizal for the probate of the
Again, under Article 811, the resort to expert evidence is conditioned holographic will of Ricardo B. Bonilla and the issuance of
by the words "if the Court deem it necessary", which reveal that what letters testamentary in her favor. The petition, docketed as
the law deems essential is that the Court should be convinced of the Sp. Proc. No. 8432, was opposed by the appellees Amparo
will's authenticity. Where the prescribed number of witnesses is Aranza Bonilla, Wilferine Bonilla Treyes Expedita Bonilla
produced and the court is convinced by their testimony that the ill is Frias and Ephraim Bonilla on the following grounds:
genuine, it may consider it unnecessary to call for expert evidence. On
the other hand, if no competent witness is available, or none of those
(1) Appellant was estopped from claiming that the deceased
produced is convincing, the Court may still, and in fact it should, resort
to handwriting experts. The duty of the Court, in fine, is to exhaust all left a will by failing to produce the will within twenty days of
available lines of inquiry, for the state is as much interested as the the death of the testator as required by Rule 75, section 2 of
the Rules of Court;
proponent that the true intention of the testator be carried into effect.

Commenting on analogous provisions of Article 691 of the Spanish
Civil Code of 1889, the noted Commentator, Mucuis Scaevola (Vol. 12,
2nd Ed., p.421), sagely remarks:
(2) The alleged copy of the alleged holographic will did not
contain a disposition of property after death and was not
intended to take effect after death, and therefore it was not a
will
 (3) The alleged hollographic will itself,and not an alleged
copy thereof, must be produced, otherwise it would produce
no effect, as held in Gam v. Yap, 104 Phil. 509; and
(4 ) The deceased did not leave any will, holographic or
otherwise, executed and attested as required by law.
The appellees likewise moved for the consolidation of the
case with another case Sp. Proc. No, 8275). Their motion
was granted by the court in an order dated April 4, 1977.
On November 13, 1978, following the consolidation of the
cases, the appellees moved again to dismiss the petition for
the probate of the will. They argued that:
(1) The alleged holographic was not a last will but merely an
instruction as to the management and improvement of the
schools and colleges founded by decedent Ricardo B.
Bonilla; and
(2) Lost or destroyed holographic wills cannot be proved by
secondary evidence unlike ordinary wills.
Upon opposition of the appellant, the motion to dismiss was
denied by the court in its order of February 23, 1979.
The appellees then filed a motion for reconsideration on the
ground that the order was contrary to law and settled
pronouncements and rulings of the Supreme Court, to which
the appellant in turn filed an opposition. On July 23, 1979,
the court set aside its order of February 23, 1979 and
dismissed the petition for the probate of the will of Ricardo B.
Bonilla. The court said:
The only question here is whether a holographic will which was lost or
cannot be found can be proved by means of a photostatic copy.
Pursuant to Article 811 of the Civil Code, probate of holographic wills is
the allowance of the will by the court after its due execution has been
proved. The probate may be uncontested or not. If uncontested, at
least one Identifying witness is required and, if no witness is available,
experts may be resorted to. If contested, at least three Identifying
witnesses are required. However, if the holographic will has been lost
or destroyed and no other copy is available, the will can not be
probated because the best and only evidence is the handwriting of the
testator in said will. It is necessary that there be a comparison between
sample handwritten statements of the testator and the handwritten will.
But, a photostatic copy or xerox copy of the holographic will may be
allowed because comparison can be made with the standard writings
of the testator. In the case of Gam vs. Yap, 104 PHIL. 509, the Court
ruled that "the execution and the contents of a lost or destroyed
holographic will may not be proved by the bare testimony of witnesses
who have seen and/or read such will. The will itself must be presented;
otherwise, it shall produce no effect. The law regards the document
itself as material proof of authenticity." But, in Footnote 8 of said
decision, it says that "Perhaps it may be proved by a photographic or
photostatic copy. Even a mimeographed or carbon copy; or by other
similar means, if any, whereby the authenticity of the handwriting of the
deceased may be exhibited and tested before the probate court,"
Evidently, the photostatic or xerox copy of the lost or destroyed
holographic will may be admitted because then the authenticity of the
handwriting of the deceased can be determined by the probate court.
WHEREFORE, the order of the lower court dated October 3, 1979,
denying appellant's motion for reconsideration dated August 9, 1979,
of the Order dated July 23, 1979, dismissing her petition to approve the
will of the late Ricardo B. Bonilla, is hereby SET ASIDE.
SO ORDERED.

... It is our considered opinion that once the original copy of

the holographic will is lost, a copy thereof cannot stand in
lieu of the original.

In the case of Gam vs. Yap, 104 Phil. 509, 522, the Supreme
Court held that 'in the matter of holographic wills the law, it is
reasonable to suppose, regards the document itself as the
material proof of authenticity of said wills.

MOREOVER, this Court notes that the alleged holographic

will was executed on January 25, 1962 while Ricardo B.
Bonilla died on May 13, 1976. In view of the lapse of more
than 14 years from the time of the execution of the will to the
death of the decedent, the fact that the original of the will
could not be located shows to our mind that the decedent
had discarded before his death his allegedly missing
Holographic Will.

Appellant's motion for reconsideration was denied. Hence, an appeal

to the Court of Appeals in which it is contended that the dismissal of
appellant's petition is contrary to law and well-settled jurisprudence.

On July 7, 1980, appellees moved to forward the case to this Court on

the ground that the appeal does not involve question of fact and
alleged that the trial court committed the following assigned errors:

I. THE LOWER COURT ERRED IN HOLDING THAT A

LOST HOLOGRAPHIC WILL MAY NOT BE PROVED BY A COPY
THEREOF;

II. THE LOWER COURT ERRED IN HOLDING THAT THE

DECEDENT HAS DISCARDED BEFORE HIS DEATH THE
MISSING HOLOGRAPHIC WILL;

III. THE LOWER COURT ERRED IN DISMISSING

APPELLANT'S WILL.