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LAJOM v.

VIOLA (1942) ISSUE: WON the plaintiff can bring action against his co-heirs for his share in the estate of the decedent HELD: YES. Broad perspectives of which policy, which the lawmaker must have contemplated, would seem to reveal the wisdom of allowing a coheir the benefits of the law of prescription even after a partition, judicial or extrajudicial, has been had. Not infrequently, the heirs are living in different provinces, far from one another and far from the residence of the decedent. In some cases, as it might have happened in the present one, a co-heir, from delicacy or fitting pride does not want, at the time of the settlement of the estate, to appear in court as a natural child, and thus make himself the object of public pity or disdain and inconsiderately lift the veil which time has benignantly placed over the father's past social deviation. The allegations clearly denounce a breach of trust which, if proved at the trial, the courts could not for a moment countenance. Regardless of any legal title to the plaintiff's share, declared by the CFI of Bulacan in favor of the defendants in the testate proceedings, high considerations of equity vehemently demand that the defendants shall not take advantage of such legal title, obtained by them through a betrayal of confidence placed in them by the plaintiff. It does not appear that the defendants ever impugned or denied the plaintiff's status as an acknowledged natural child; on the contrary, according to the complaint, the defendants admitted such status by promising to give the plaintiff his lawful share in the estate of the father. Furthermore, article 1965 of the Civil Code, which has been held by the court to be still in force, in spite of secs. 43 et seq. of the Code of Civil Procedure provides as follows: "Among coheirs, co-owners or proprietors of adjoining lands, the action to ask for the partition of the inheritance, the division of the thing owned in common or the fixing of boundaries of adjoining lands, does not prescribe. The defend ants having, according to the complaint, promised to give the plaintiff his share in the inheritance, his right to demand partition of the inheritance does not prescribe, in view of said article 1965.

JEREZ v. NIETES (1969) ISSUES: 1. WON the court has the power to reopen the proceedings to allow intervention 2. Assuming that it has the power, WON the exercise of such power is proper HELD: 1. YES. It is within the power of respondent Judge to reopen the proceedings and allow intervention. Rather than require any party who can allege a grievance that his interest was not recognized in a testate or intestate proceeding to file a separate and independent action, he may within the reglementary period secure the relief that is his due by a reopening of the case even after a project of partition and final accounting had been approved. The court cited Ramos v. Ortuzar: The only instance that we can think of in which a party interested in a probate proceeding may have a final liquidation set aside is when he is left out by reason of circumstances beyond his control or through mistake or inadvertence not imputable to negligence. Even then, the better practice to secure relief is reopening of the same case by proper motion within the reglementary period, instead of an independent action the effect of which, if successful, would be, as in the instant case, for another court or judge to throw out a decision or order already final and executed and reshuffle properties long ago distributed and disposed of. 2. NO. Respondent Judge acted too soon. The verified motion on the part of private respondents did not suffice to call into play the power of respondent Judge to allow intervention. There must be proof beyond allegations in such motion to show the interest of the private movants. In the absence thereof, the action taken by respondent Judge could be considered premature. As was stated in an opinion penned by Justice Sanchez: "No one may quibble over the existence of the court's discretion on whether to admit or reject intervention. But such discretion is not unlimited."

GERONA v. DE GUZMAN (1964) ISSUE: WON the action of the petitioners has already prescribed HELD: YES. Although, as a general rule, an action for partition among coheirs does not prescribe, this is true only as long as the defendants do not hold the property in question under an adverse title (Cordova vs. Cordova). The statute of limitations operates as in other cases, from the moment such adverse title is asserted by the possessor of the property (Ramos vs. Ramos). When respondents executed the deed of extra-judicial settlement stating therein that they are the sole heirs, and secured new transfer certificates of title in their own name, they thereby excluded the petitioners from the estate of the deceased, and, consequently, set up a title adverse to them. And this is why petitioners have brought this action for the annulment of said deed upon the ground that the same is tainted with fraud. Although, there are some decisions to the contrary, it is already settled that an action for reconveyance of real property based upon a constructive or implied trust, resulting from fraud, may be barred by the statute of limitations (Candelaria v. Romero). Inasmuch as petitioners seek to annul the aforementioned deed of "extra-judicial settlement" upon the ground of fraud in the execution thereof, the action therefor may be filed within 4 years from the discovery of the fraud (Mauricio v. Villanueva). o Such discovery is deemed to have taken place on June 25, 1948, when said instrument was filed with the Register of Deeds and new certificates of title were issued in the name of respondents exclusively, for the registration of the deed of extra-judicial settlement constitute constructive notice to the whole world (Diaz v. Gorricho).

PALACIOS v. CATIMBANG PALACIOS (1959) ISSUE: WON the opposition to the probate should be allowed HELD: NO. Such opposition cannot be entertained in this proceeding because its only purpose is merely to determine if the will has been executed in accordance with the requirements of the law, much less if the purpose of the opposition is to show that the oppositor is an acknowledged natural child who allegedly has been ignored in the will for issue cannot be raised here but in a separate action. This is especially so when the testator, as in the present case, is still alive and has merely filed a petition for the allowance of his will leaving the effects thereof after his death. Montaano vs. Suesa: "The authentication of the will decides no other questions than such as touch upon the capacity of the testator and the compliance with those requisites or solemnities which the law prescribes for the validity of a will. It does not determine nor even by implication prejudge the validity or efficiency of the provisions; that may be impugned as being vicious or null, notwithstanding its authentication. The questions relating to these points remain entirely un-affected, and may be raised even after the will has been authenticated." On the other hand, "after a will has been probated during the lifetime of a testator, it does not necessarily mean that he cannot alter or revoke the same before he has had a chance to present such petition, the ordinary probate proceedings after the testator's death would be in order" (Report of the Code Commission, pp. 53-54). The reason for this comment is that the rights to the succession are transmitted from the moment of the death of the decedent (Article 777, new Civil Code.).

GUEVARA v. GUEVARA (1956) ISSUE: WON the petition for probate of the will is barred by the statute of limitations, considering that the petition for probate of the will was filed 12 years after the death of the testator HELD: NO. The Court below was in error when it declared that the petition for probate of the will was barred by prescription. The provision of Art 756 of the old Civil Code (1042 of the New) and of Rule 76 of the Rules of Court, reiterating those of the old Code of Civil Procedure, point out that the presentation of a decedents will to the competent court has always been deemed by the law as more of a duty than a right, and the neglect of such obligation carries with it the corresponding penalty and it is inconsistent with that policy that the court should refuse to admit wills to probate, without inquiry into their validity. Because the decedent may no longer act to have his testamentary dispositions duly executed, the state authority must take over the opposite vigilance and supervision, so that free testamentary disposition does not remain a delusion and a dream. The court below failed to notice that its doctrine was destructive of the right of testamentary disposition and violative of the owners right to control his property within the legal limits. It is not without purpose that Rule of Court 77 prescribes that any person interested in the estate may, at any time after the death of the testator, petition the court having jurisdiction to have the will allowed. o Even if the other heirs had failed to show interest in the case, and even if the other heirs had already received their shares, the order refusing the probate remains indefensible. If the other heirs were not interested, there remained the wishes of the testator to be supported and protected, if validly expressed. If the heirs had distributed the estate, the distribution was illegal and improper unless the will be first probated. A hearing on the allowance of the will is unavoidable. The persistent, albeit obnoxious, attempts of Rosario Guevara to sidetrack the will are not remedied by dismissing the petition for probate of will, and allowing Ernesto to retain a greater interest than that intended by the testator.

MERCADO v. SANTOS (1938) ISSUE: WON the probate of the will is a bar to a criminal prosecution for the alleged forgery of the said will HELD: YES. In view of the provisions of sections 306, 333 and 625 of the Code of Civil Procedure, criminal action will not lie against the forger of a will which had been duly admitted to probate by a court of competent jurisdiction. The American and English cases show a conflict of authorities. It behooves the Court, therefore, to choose that rule most consistent with statutory law, having in view the needed stability of property rights and the public interest in general. By and large, however, the balance seems inclined in favor of the view that it serves as a bar. Not only does the law surround the execution of the will with the necessary formalities and require probate to be made after an elaborate judicial proceeding, but section 113, not to speak of section 513, of the Code of Civil Procedure provides for an adequate remedy to any party who might have been adversely affected by the probate of a forged will, much in the same way as other parties against whom a judgment is rendered under the same or similar circumstances. (Pecson vs. Coronel) o The aggrieved party may file an application for relief with the proper court within a reasonable time, but in no case exceeding 6 months after said court has rendered the judgment of probate, on the ground of mistake, inadvertence, surprise or excusable neglect. An appeal lies to review the action of a court of first instance when that court refuses to grant relief (Banco Espaol Filipino vs. Palanca). After a judgment allowing a will to be probated has become final and unappealable, and after the period fixed by section 113 of the Code of Civil Procedure has expired, the law as an expression of the legislative wisdom goes no further and the case ends there. Section 625 states that No will shall pass either the real or personal estate, unless it is proved and allowed in the CFI, or by appeal to the SC; and the allowance by the court of a will of real and personal estate shall be conclusive as to its due execution.

MANAHAN v. MANAHAN (1933) ISSUE: WON the challenge as to the validity of the probated will shall prosper HELD: NO. Once a will has been authenticated and admitted to probate, questions relative to the validity thereof can no more be raised on appeal. The decree of probate is conclusive with respect to the due execution thereof and it cannot impugned on any of the grounds authorized by law, except that of fraud, in any separate or independent action or proceedings (sec. 625, Code of Civil Procedure) Also, inasmuch as the proceedings followed in a testamentary case are in rem, the trial courts decree admitting the will to probate was effective and conclusive against her, in accordance with the provisions of section 306 of the said Code of Civil Procedure It is not timely to discuss the validity and sufficiency of the execution of the will in question. This question can no more be raised in this case on appeal. After due hearing, the court found that the will in question was valid and effective and the order admitting it to probate, thus promulgated, should be accepted and respected by all. The probate of the will in question now constitutes res judicata.

FERNANDEZ v. DIMAGIBA (1967) ISSUE: WON the order of the Court of origin overruling the estoppel invoked by oppositors-appellants had likewise become final HELD: YES. In Guevara vs. Guevara, it was held that the presentation and probate of a will are requirements of public policy, being primarily designed to protect the testator's, expressed wishes, which are entitled to respect as a consequence of the decedent's ownership and right of disposition within legal limits. Evidence of it is the duty imposed on a custodian of a will to deliver the same to the Court, and the fine and imprisonment prescribed for its violation (Revised Rule 75). It would be a non sequitur to allow public policy to be evaded on the pretext of estoppel. Whether or not the order overruling the allegation of estoppel is still appealable or not, the defense is patently unmeritorious and the Court of Appeals correctly so ruled.

RIERA v. PALMAROLI (1919) ISSUE: WON a party who is interested in the estate of a deceased person, and who has been prevented by inevitable conditions from opposing the probate of the will, obtain from the Supreme Court an order for a rehearing, it being alleged that the will was not executed with the formalities required by law and hence was improperly admitted to probate HELD: NO. The reliefs provided by Sec. 513 of the Code of Civil Procedure are not applicable to probate proceedings. Said provision is not applicable. It is not a judgment rendered upon default, as required by the provision, even though no person appears to oppose the probate. It is not alleged that any fraud has been attempted or committed. But if fraud had been alleged, in this case, the remedy, if any exists, would not be found in a proceeding under Sec. 513, but in an original action in the CFI. The CFI has finally adjourned so that no adequate remedy exists in that court. When, however, the CFI has, be the expiration of 6 months, lost the power to relieve from its own judgment under Sec. 113, the remedy conceded by Sec. 513 may be resorted to, under conditions stated in that section; and apart from the restriction that the petition shall be filed within 60 days after the party aggrieved first learns of the rendition of judgment, there is no positive limitation as to the time within which the petition may be filed in the SC. o Therefore, the Supreme Court cannot grant relief because the remedy conceded in Sec. 513 of the Code of Civil Procedure has no application to orders admitting wills to probate.

IN RE ESTATE OF JOHNSON (1918) ISSUE: WON the order of probate should be vacated due to the fact that, at the time of the making of the will, the testator was not a resident of Illinois HELD: NO. The proof adduced before the trial court must be taken as showing that, at the time the will was executed, the testator was, as stated in the order of probate, a citizen of the State of Illinois. This, in connection with the circumstance that the petition does not even so much as deny such citizenship but only asserts that the testator was a resident of the Philippines, demonstrates the impossibility of setting the probate aside for lack of the necessary citizenship on the part of the testator. When Johnson first came to the US as a boy, he took up his abode in the State of Illinois and there remained until he came as a soldier in the US Army to the Philippines. Although he remained in the Philippines for sometime after his discharge, no evidence was adduced showing that at the time he returned to the US, he had then abandoned Illinois as the State of his permanent domicile. Further, there is no law in force at that time by virtue of which any person of foreign nativity can become a naturalized citizen of the Philippine Islands. This being true, it is to be presumed that he retained his citizenship in the State of Illinois along with his status as a citizen of the United States The argument that the will in question was not properly admissible to probate because it contains provisions which cannot be given effect consistently with the laws of the Philippines is untenable. The probate of the will does not affect the intrinsic validity of its provisions, the decree of probate being conclusive only as regards the due execution of the will. (Code of Civil Procedure, secs. 625, 614) o It should not be forgotten that the intrinsic validity must be determined by the law of Illinois and not, as the appellant apparently assumes, by virtue of Art. 10 of the Civil Code. The petition submitted to the court was entirely insufficient to warrant the setting aside of the other probating the will in question, whether said petition be considered as an attack on the validity of the decree for error apparent, or whether it be considered as an application for a rehearing based upon the new evidence submitted in the affidavits which accompany the petition.

US v. CHIU GUIMCO (1917) ISSUE: WON it was proper for the court to order the confinement of Guimco HELD: NO. Section 629 of the Code of Civil Procedure, which allows imprisonment of a person who neglects to deliver a will after the death of the testator without reasonable cause, can only be applied when a court is acting in the exercise of its jurisdiction over the administration of the estates of deceased persons. Where administration proceedings are not already pending, the court, before taking action under this section, should require that there be before it some petition, information, or affidavit of such character as to make action by the court under this section appropriate. o The remedy provided in section 629 of the Code of Procedure is clearly a totally different remedy, having no relation with that provided in section 628. It is not permissible in a prosecution under Sec. 628 to superimpose upon the penalty of fine therein prescribed the additional penalty of imprisonment prescribed under Sec. 629. To enforce the production of the will by the accused at a trial under Sec. 628 would virtually compel him to convict himself, since the mere production of the will by him would be conclusive that he had possession of it as charged in the criminal complaint. This would constitute an infringement of the provision of law which says that in a criminal action the defendant shall be exempt from testifying against himself.

SANTOS v. CASTILLO (1937) ISSUES: 1. WON Santos is entitled to apply the will for probate 2. WON the Court acquired jurisdiction upon the filing of the petition by the petitioner HELD: 1. NO. As the legitimate children of the deceased had custody of the originals of the will and of the codicil, they alone could, had the right and where bound by law to apply for the probate of their father's last will. Section 626 of the Code of Civil Procedure provides that the person who has the custody of a will shall, within 30 days after he knows of the death of the testator, deliver the will into the court which has jurisdiction, or to the executor named in the will, and sections 628 and 629 prescribed coercive means to compel a person having the custody of a will to deliver it to the court having jurisdiction. One of the 2 copies of the will turned over to Jose Azores (one of the legitimate children of the 1st marriage) must be the original because the respondents had the original of the will as well as the codicil. o Hence, it was Jose Azores, who had the custody of the will because the original thereof was turned over to him. Also, as the testator had subsequently made his codicil and had entrusted its custody to his legitimate children, his last will, as to the custody of his will and codicil, was clearly modified in the sense of entrusting the custody of both to his legitimate children and not to Manuel Azores Concordia or to the petitioner. 2. NO. The allegations of the application were insufficient to confer jurisdiction upon the court. As the amendment had not been admitted, the lack of jurisdiction continued to be manifest. In order that the court may acquire jurisdiction, the application must allege, in addition to the residence of the deceased and other indispensable facts or circumstances, that the applicant is the executor in the will or is the person who had custody of the will to be probated. The original of said document must be presented or sufficient reasons given to justify the non-representation of said original and the acceptance of the copy or duplicate thereof.

RODRIGUEZ v. BORJA (1966) ISSUE: WON the court already acquired jurisdiction upon the delivery of the will HELD: YES. The jurisdiction of the CFI of Bulacan became vested upon the delivery of the will, even if no petition for its allowance was filed until later, because upon the will being deposited the court could, motu proprio, have taken steps to fix the time and place for proving the will, and issued the corresponding notices (Sec 3, Rule 76, of the Rev Rules of Court). The use of the disjunctive in the words "when a will is delivered to OR a petition for the allowance of a will is filed" plainly indicates that the court may act upon the mere deposit therein of a decedent's testament, even if no petition for its allowance is as yet filed. Where the petition for probate is made after the deposit of the will, the petition is deemed to relate back to the time when the will was delivered. o Since the testament of Fr. Rodriguez was submitted and delivered to the CFI of Bulacan on March 4, while petitioners initiated intestate proceedings in the CFI of Rizal only on March 12, eight days later, the precedence and exclusive jurisdiction of the Bulacan court is incontestable. The testate proceedings having been initiated in the Bulacan CFI ahead of any other, that court is entitled to assume jurisdiction to the exclusion of all other courts, even if it were a case of wrong venue by express provisions of Rule 73 (old Rule 75) of the Rules of Court. There are two other reasons against petitioners: o First, commencing intestate proceedings, after they learned of the delivery of the decedent's will, was in bad faith, patently done with a view to divesting the latter court of the precedence awarded it by the Rules. o Second, intestate succession is only subsidiary or subordinate to the testate, since intestacy only takes place in the absence of a valid operative will.

PEREZ v. PEREZ (1959) ISSUE: WON the Court did not acquire jurisdiction for failure to notify other heirs HELD: NO. The "no notice" argument has no legal foundation. At any rate the omission, if any, did not affect the jurisdiction of the court: it constituted a mere procedural error that may or may not be the basis of reversal (Jocson vs. Nable). o The court acquires jurisdiction over all persons interested in the estate through the publication of the petition in the newspapers (In re Estate of Johnson) which in this case admittedly took place. Service of notice on individual heirs or legatees or devisees is a matter of procedural convenience, not jurisdictional requisite. (Joson vs. Nable) o Even if the names of some legatees or heirs had been omitted from the petition for allowance of the will and therefore were not adviced the decree allowing the will does not ipso facto become void for want of jurisdiction. (Nicholson vs. Leathan) The jurisdictional question directly appealable to the SC refers to jurisdiction over the subject matter, not mere jurisdiction over the persons. (Reyes vs. Diaz)

BASA v. MERCADO (1935) ISSUES: 1. WON the required publication of the notice for three weeks successively had been complied with 2. WON the publication was made in a newspaper of general circulation HELD: 1. YES. The language used in section 630 of the Code of Civil Procedure does not mean that the notice should be published for three full weeks before the date set for the hearing on the will. In other words the first publication of the notice need not be made twenty-one days before the day appointed for the hearing. 2. YES. Ing Katipunan is a newspaper of general circulation in view of the fact that it is published for the dissemination of local news and general information; that it has a bona fide subscription list of paying subscribers; that it is published at regular intervals and that the trial court ordered the publication to be made in Ing Katipunan precisely because it was a "newspaper of general circulation in the Province of Pampanga." Furthermore no attempt has been made to prove that it was a newspaper devoted to the interests or published for the entertainment of a particular class, profession, trade, calling, race or religious denomination. o The fact that there is another paper published in Pampanga that has a few more subscribers (72 to be exact) and that certain Manila dailies also have a larger circulation in that province is unimportant. The law does not require that publication of the notice, referred to in the Code of Civil Procedure, should be made in the newspaper with the largest numbers is necessary to constitute a newspaper of general circulation.

DE ARANZ v. GALING (1988) ISSUE: WON the failure to send personal notices to the legatees/devises divested the court of its jurisdiction to proceed with the probate proceedings HELD: YES. It is clear from Sec. 4, Rule 76 of the Rules of Court that notice of the time and place of the hearing for the allowance of a will shall be forwarded to the designated or other known heirs, legatees, and devisees residing in the Philippines at their places of residence, if such places of residence be known. o The residences of petitioners, legatees and devisees, were known to the probate court. The petition for the allowance of the will itself indicated the names and addresses of the legatees and devisees of the testator. But despite such knowledge, the probate court did not cause copies of the notice to be sent to petitioners. The requirement of the law for the allowance of the will was not satisfied by mere publication of the notice of hearing for 3 weeks in a newspaper of general circulation. Ruling in Joson v. Nable does not applyIn that case, petitioners failed to contest the will of Tomas Joson because they had not been notified of the hearing of the petition for probate. The the petition included the residence of petitioners as Dagupan Street No. 83, Manila, petitioners claimed that their residence was not Dagupan Street No. 83, Manila. o Individual notice upon heirs, legatees and devisees is necessary only when they are known or when their places of residence are known. In other instances, such notice is not necessary and the court may acquire and exercise jurisdiction simply upon the publication of the notice in a newspaper of general circulation.

MANINANG v. CA (1982) ISSUE: WON the court acted in excess of jurisdiction when it dismissed the testate estate HELD: YES. By virtue of the dismissal of the testate case, the determination of the controversial issue has not been thoroughly considered. From the face of the Will, the conclusion that respondent Bernardo was preterited is not indubitable. General Rule: The probate of a Will is mandatory. Normally, the probate of a Will does not look into its intrinsic validity. o Exception: where practical considerations demand that the intrinsic validity of the will be passed upon, even before it is probated, the Court should meet that issue. (Nuguid and Balanay cases) The Nuguid and the Balanay cases provide the exception rather than the rule. The intrinsic validity of the Wills in those cases was passed upon even before probate because "practical considerations" so demanded. Moreover, for the parties in the Nuguid case, the "meat of the controversy" was the intrinsic validity of the Will; in fact, the parties in that case "shunted aside the question of whether or not the Will should be allowed probate." Not so in the present case where the probate of the Will is insisted on by petitioners and a resolution on the extrinsic validity of the Will demanded. Moreover, in the Nuguid case, the Court ruled that the Will was intrinsically invalid as it completely preterited the parents of the testator. In the instant case, a crucial issue that calls for resolution is whether under the terms of the decedent's Will, private respondent had been preterited or disinherited, and if the latter, whether it was a valid disinheritance.

ACAIN v. IAC (1987) ISSUE: WON the probate court in this case could rule on the intrinsic validity of the will. HELD: YES. Under exceptional circumstances, the probate court is not powerless to do what the situation constrains it to do and pass upon certain provisions of the will. The general rule is that the probate court's authority is limited only to the extrinsic validity of the will, the due execution thereof, the testator's testamentary capacity and the compliance with the requisites or solemnities prescribed by law. The intrinsic validity of the will normally comes only after the Court has declared that the will has been duly authenticated. The rule, however, is not inflexible and absolute. Under exceptional circumstances, the probate court is not powerless to do what the situation constrains it to do and pass upon certain provisions of the will (Nepomuceno v. CA). o In Nuguid v. Nuguid the oppositors to the probate moved to dismiss on the ground of absolute preteriton The probate court acting on the motion held that the will in question was a complete nullity and dismissed the petition without costs. Respondents filed a motion to dismiss on the following grounds: (1) petitioner has no legal capacity to institute the proceedings; (2) he is merely a universal heir; and (3) the widow and the adopted daughter have been preterited. For private respondents to have tolerated the probate of the will and allowed the case to progress when on its face the will appears to be intrinsically void as petitioner and his brothers and sisters were instituted as universal heirs coupled with the obvious fact that one of the private respondents had been preterited would have been an exercise in futility. It would have meant a waste of time, effort, expense, plus added futility. The trial court could have denied its probate outright or could have passed upon the intrinsic validity of the testamentary provisions before the extrinsic validity of the will was resolved. (Cayetano and Nuguid cases)

CABANG v. DELFINADO (1916) ISSUE: WON the court erred in admitting the will to probate without having two of the subscribing witnesses called, although they were living within the jurisdiction of the court, or for not requiring any showing why they were not produced HELD: YES. No will can be proved, unless all the subscribing witnesses, alive and within the control of the process of the court, are produced to testify The rule that no will shall be valid to pass any estate unless attested and subscribed by three or more credible witnesses, is a matter of substantive law and an element of the wills validity. The rule that the attesting witnesses must be called to prove a will for probate is one of preference made so by statute. o In proving the contested will only one attestor was presented, although the record showed that the other two were living, one in Manila and the other in Nueva Ecija. It was an error to admit the will to probate without calling all the attesting witnesses or requiring a showing that they could not be obtained. This rule of evidence is not to be confused with rules of quantity. There have been several reasons given for this rule of preference for the attesting witnesses, one reason being that the party opposing the claim of proper execution of the will has a right to the benefit of cross-examining the attesting witnesses as to fraud, duress, or other matters of defense. The law places these witnesses around the testator to ascertain and judge of his capacity for the purpose of preventing frauds. o Here the attesting clause was omitted and the testator signed by mark. The petitioner produced only one of the attesting witnesses. Had there not been a contest, this would have probably been sufficient. There is conclusive evidence that he could sign his name. Had the proponent shown that the other two subscribing witnesses were not within the jurisdiction of the court and could not, therefore, be called, the due execution of the will would still be very doubtful.

ALDANESE v. SALUTILLO (1925) ISSUES: 1. WON the depositions should be allowed 2. WON the testimony of the photographer Calderon in regard to the identity of a photographic copy of the will, which copy had been used in connection with the taking of the depositions should be admitted HELD: 1. YES. It is true that the prevailing rule is that when a will is contested the attesting witnesses must be called to prove the will or a showing must be made that they cannot be had, but that does not necessarily mean that they must be brought bodily before the court. It is their testimony which is needed and not their actual personal presence. Sec. 361 in relation to Sec. 355 of the Code of Civil Procedure provides that a deposition shall be allowed when the witness resides out of the province in which his testimony is to be used. The will was presented for probate in Cebu; the attesting witnesses were living in Manila and were beyond the process of the court for compulsory attendance. They were called to testify and produced before an officer legally authorized to take their testimony in the form of depositions. The notice required by section 361 was duly given and the opponents given the opportunity to be present and to crossexamine the witnesses. In the circumstances, this must certainly be considered a sufficient calling of the witnesses and satisfies the law. The depositions appear to be in due form and would ordinarily be admissible, but the record indicates that the failure of the opponents to be presented at the examination of the witnesses was due to the fact that they were misled by the petitioners action in seeking special authorization from the court for the taking of the depositions. In the interest of justice, therefore, the depositions should be retaken and the opponents given another opportunity to examine the witnesses. 2. YES. When depositions of subscribing witnesses to a will are taken, a photographic copy of the will, which copy had been used in connection with the settled that when depositions of subscribing witnesses to a will are taken, a photographic copy of the will may be presented to the witnesses on their examination and that they may be asked the same original will. It follows that if the depositions are admitted the testimony as to the identity of the photographic copy shown to the witnesses is also admissible.

VDA. DE RAMOS v. CA (1978) ISSUE: WON the last testament and its codicil were executed in accordance with the formalities of the law, considering the complicated circumstances that two of the attesting witnesses testified against their due execution while other non-subscribing witnesses testified to the contrary HELD: YES. There is ample and satisfactory evidence that the will and codicil were executed in accordance with the formalities required by law. The documents were prepared by a lawyer, the execution of the same was supervised by his associate, and before whom the deeds were also acknowledged. The solemnity surrounding the execution of a will is attended by some intricacies not usually within the comprehension of an ordinary layman. There is no showing that the lawyers had been remiss in their sworn duty. Also, respondent court failed to consider the presumption of regularity in the execution of the documents. There were no incidents to arouse suspicion of anomaly. While there are allegations of fraud and undue influence, no evidence was presented. All the attesting witness to a will if available, must be called to prove the will. They become "forced witnesses" and their declaration derogatory to the probate of the will need not bind the proponent hence, the latter may present other proof of due exemption even if contrary to the testimony of or all of the at, testing witness. However, although the subscribing witnesses to a contested will are the best witness in connection with its due execution, to deserve full credit, their testimony must be reasonable, and unbiased; if otherwise it may be overcome by any competent evidence, direct or circumstantial. Also, the function of the Notary Public is, among others, to guard against any illegal or immoral arrangements in the execution of a will. There is no showing of any self-interest that might possibly have warped his judgment and twisted his declaration, hence, his intervention of a Notary Public, in his professional capacity, in the execution of a will deserves grave consideration. Furthermore, the fact that the only pictures available are those which show the Witnesses signing the will in the presence of the testatrix and of each other does not belie the probability that the testatrix also signed the will before the presence of the witnesses.

GAGO v. MAMUYAC (1927) ISSUE: WON the will has been effectively revoked by the testator HELD: YES. In view of the fact that the original will could not be found after the death of the testator and in view of the positive proof that the same had been cancelled, the conclusions of the lower court are in accordance with the weight of the evidence. The law does not require any evidence of the revocation or cancellation of a will to be preserved. It therefore becomes difficult at times to prove the revocation or cancellation of wills. The fact that such cancellation or revocation has taken place must either remain unproved or be inferred from evidence showing that after due search the original will cannot be found. Where a will which cannot be found is shown to have been in the possession of the testator, when last seen, the presumption is, in the absence of other competent evidence, that the same was cancelled or destroyed. The same presumption arises where it is shown that the testator had ready access to the will and it cannot be found after his death. It will not be presumed that such will has been destroyed by any other person without the knowledge or authority of the testator. The force of the presumption of cancellation or revocation by the testator, while varying greatly, being weak or strong according to the circumstances, is never conclusive, but may be overcome by proof that the will was not destroyed by the testator with intent to revoke it. In a proceeding to probate a will the burden of proof is upon the proponent clearly to establish not only its execution but its existence. Having proved its execution by the proponents, the burden is on the contestant to show that it has been revoked. In a great majority of instances in which wills are destroyed for the purpose of revoking them there is no witness to the act of cancellation or destruction and all evidence of its cancellation perishes with the testator. Copies of wills should be admitted by the courts with great caution. When it is proven, however, by proper testimony that a will was executed in duplicate and each copy was executed with all the formalities and requirements of the law, then the duplicate may be admitted in evidence when it is made to appear that the original has been lost and was not cancelled or destroyed by the testator. (Borromeo vs. Casquijo)

GAN v. YAP (1958) ISSUE: WON a holographic will may be proved by testimonial evidence HELD: NO. When the holographic will itself is not submitted, the means of opposition, and of assessing the evidence are not available. And then the only guaranty of authenticitythe testator's handwritinghas disappeared. Spanish commentators agree that one of the greatest objections to the holographic will is that it may be lost or stolenan implied admission that such loss or theft renders it useless. 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. Such purpose is frustrated when the document is not presented for their examination The difference in the treatment lies in the nature of the wills. 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. If oral testimony were admissible only one man could engineer the fraud and make it believable. Also, 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, in addition to the dubious circumstances, it is hard to believe that the deceased should show her will precisely to relatives who had received nothing from it. 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. o In fine, even if oral testimony were admissible to establish and probate a lost holographic will, the evidence 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.

RODELAS v. ARANZA (1982) ISSUE: WON a holographic will which was lost or cannot be found can be proved by means of a photostatic copy HELD: YES. 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. Pursuant to Art. 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 cannot 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. In the case of Gan vs. Yap, 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." o 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."

MANALO v. PAREDES (1925) ISSUE: WON Malihan is bound by the order of the court declaring that the decedent died intestate HELD: YES. The proceeding for the probate of a will is a proceeding in rem (40 Cyc., p. 1265), and the court acquires jurisdiction over all the persons interested through the publication of the notice prescribed by section 630 of the Code of Civil Procedure, and any order that may be entered is binding against all of them. Through the publication ordered by the CFI of the application for the probate of the supposed will of Francisco Villegas, filed by Mendieta and her minor children, said court acquired jurisdiction over all such persons as were interested in the supposed will, including Gelacio Malihan. The court having tried said application for probate, hearing all the testimony of the attesting witnesses of the said supposed will, the applicant Justina Mendieta for herself and as guardian ad litem of her minor children, on the one hand, and Laureana Hidalgo, widow of Villegas, on the other, having submitted a stipulation wherein the former withdrew her application and the latter reserved certain rights over the estate left by Francisco Villegas in favor of Justina Mendieta and her minor children; and the court having approved said stipulation and declared that Francisco Villegas died intestate according to said agreement, all the parties became bound by said judgment. If any of them or other persons interested were not satisfied with the court's decision, they had the remedy of appeal, and cannot now through the special remedy of mandamus, obtain a review of the proceeding upon a new application for the probate of the same will in order to compel the respondent judge to comply with his ministerial duty imposed by section 330 of the Code of Civil Procedure; because this remedy, being extraordinary, cannot be used in lieu of appeal, or writ of error (26 Cyc., 177; 18 R.C.L., par. 443); especially when the parties interested have agreed to disregard the testamentary provisions and divide the estate as they pleased, each of them taking what pertained to him (25 R.C.L., 359).