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TABOADA VS ROSAL

Dorotea Perez left a will. The will has two pages. On the first page, which
contains the entire testamentary dispositions, were the signatures of the three
instrumental witnesses and that of Dorotea Perez. The signatures of the three
instrumental witnesses were on the left margin while Perez signature was on the
bottom. On the second page, which contains the attestation clause and the
acknowledgement, were the signatures of the three attesting witnesses and that
of Dorotea Perez. The attestation clause failed to state the number of pages
used in the will. Taboada petitioned for the admission to probate of the said will.
The judge who handled the petition was Judge Ramon Pamatian. He denied
the petition. Taboada filed a motion for reconsideration but Pamatian was not
able to act on it because he was transferred to another jurisdiction. The case
was inherited by Judge Rosal who also denied the MFR on the grounds that a)
that the testator and the instrumental witnesses did not all sign on the left margin
of the page as prescribed by law; that the testator and the witnesses should
have placed their signature in the same place b) that the attestation clause
failed to state the number of pages used in writing the will this, according to
Judge Rosal violated the requirement that the attestation clause shall state the
number of pages or sheets upon which the will is written, which requirement has
been held to be mandatory as an effective safeguard against the possibility of
interpolation or omission of some of the pages of the will to the prejudice of the
heirs to whom the property is intended to be bequeathed.
ISSUE: Whether or not the will should be admitted to probate.
HELD: Yes. The law must be interpreted liberally.
Further, there is substantial compliance with the law. 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.
The failure to include in the attestation clause of the number of pages used in
writing the will would have been a fatal defect. But then again, the matter
should be approached liberally. There were only two pages in the will left by
Perez. The first page contains the entirety of the testamentary dispositions and
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. Further, the
acknowledgment itself states that This Last Will and Testament consists of two
pages including this page.
Union Bank v. Santibanez
452 SCRA 228
FACTS:
On May 31, 1980, the First Countryside Credit Corporation (FCCC) and Efraim
Santibaez entered into a loan agreement in the amount of P128,000.00. The
amount was intended for the payment of one (1) unit Ford 6600 Agricultural
Tractor. In view thereof, Efraim and his son, Edmund, executed a promissory note
in favor of the FCCC, the principal sum payable in five equal annual
amortizations. On Dec. 1980, FCCC and Efraim entered into another loan
agreement for the payment of another unit of Ford 6600 and one unit of a
Rotamotor. Again, Efraim and Edmund executed a promissory note and a
Continuing Guaranty Agreement for the later loan. In 1981, Efraim died, leaving
a holographic will. Testate proceedings commenced before the RTC of Iloilo
City. Edmund was appointed as the special administrator of the estate. During
the pendency of the testate proceedings, the surviving heirs, Edmund and his
sister Florence, executed a Joint Agreement, wherein they agreed to divide
between themselves and take possession of the three (3) tractors: (2) tractors
for Edmund and (1) for Florence. Each of them was to assume the indebtedness
of their late father to FCCC, corresponding to the tractor respectively taken by
them. In the meantime, a Deed of Assignment with Assumption of Liabilities was
executed by and between FCCC and Union Bank, wherein the FCCC assigned
all its assets and liabilities to Union Bank.
Demand letters were sent by Union Bank to Edmund, but the latter refused to
pay. Thus, on February 5, 1988, Union Bank filed a Complaint for sum of money
against the heirs of Efraim Santibaez, Edmund and Florence, before the RTC of
Makati City. Summonses were issued against both, but the one intended for
Edmund was not served since he was in the United States and there was no
information on his address or the date of his return to the Philippines. Florence
filed her Answer and alleged that the loan documents did not bind her since
she was not a party thereto. Considering that the joint agreement signed by her
and her brother Edmund was not approved by the probate court, it was null
and void; hence, she was not liable to Union Bank under the joint agreement.
Union Bank asserts that the obligation of the deceased had passed to his
legitimate heirs (Edmund and Florence) as provided in Article 774 of the Civil
Code; and that the unconditional signing of the joint agreement estopped
Florence, and that she cannot deny her liability under the said document.
In her comment to the petition, Florence maintains that Union Bank is trying to
recover a sum of money from the deceased Efraim Santibaez; thus the claim
should have been filed with the probate court. She points out that at the time of
the execution of the joint agreement there was already an existing probate
proceedings. She asserts that even if the agreement was voluntarily executed
by her and her brother Edmund, it should still have been subjected to the
approval of the court as it may prejudice the estate, the heirs or third parties.
ISSUE:
W/N the claim of Union Bank should have been filed with the probate court
before which the testate estate of the late Efraim Santibaez was pending. W/N
the agreement between Edmund and Florence (which was in effect, a partition
of hte estate) was void considering that it had not been approved by the
probate court. W/N there can be a valid partition among the heirs before the
will is probated.

HELD:
Well-settled is the rule that a probate court has the jurisdiction to determine all
the properties of the deceased, to determine whether they should or should not
be included in the inventory or list of properties to be administered. The said
court is primarily concerned with the administration, liquidation and distribution
of the estate.
In our jurisdiction, the rule is that there can be no valid partition among the heirs
until after the will has been probated. In the present case, Efraim left a
holographic will which contained the provision which reads as follows:
(e) All other properties, real or personal, which I own and may be discovered
later after my demise, shall be distributed in the proportion indicated in the
immediately preceding paragraph in favor of Edmund and Florence, my
children.
The above-quoted is an all-encompassing provision embracing all the properties
left by the decedent which might have escaped his mind at that time he was
making his will, and other properties he may acquire thereafter. Included therein
are the three (3) subject tractors. This being so, any partition involving the said
tractors among the heirs is not valid. The joint agreement executed by Edmund
and Florence, partitioning the tractors among themselves, is invalid, specially so
since at the time of its execution, there was already a pending proceeding for
the probate of their late fathers holographic will covering the said tractors.
The Court notes that the loan was contracted by the decedent. The bank,
purportedly a creditor of the late Efraim Santibaez, should have thus filed its
money claim with the probate court in accordance with Section 5, Rule 86 of
the Revised Rules of Court.
The filing of a money claim against the decedents estate in the probate court is
mandatory. This requirement is for the purpose of protecting the estate of the
deceased by informing the executor or administrator of the claims against it,
thus enabling him to examine each claim and to determine whether it is a
proper one which should be allowed. The plain and obvious design of the rule is
the speedy settlement of the affairs of the deceased and the early delivery of
the property to the distributees, legatees, or heirs.
Perusing the records of the case, nothing therein could hold Florence
accountable for any liability incurred by her late father. The documentary
evidence presented, particularly the promissory notes and the continuing
guaranty agreement, were executed and signed only by the late Efraim
Santibaez and his son Edmund. As the petitioner failed to file its money claim
with the probate court, at most, it may only go after Edmund as co-maker of the
decedent under the said promissory notes and continuing guaranty.
Uson v. Del Rosario
92:530
FACTS:
This is an action for recovery of the ownership and possession of five (5) parcels
of land in Pangasinan, filed by Maria Uson against Maria del Rosario and her
four illegit children. Maria Uson was the lawful wife of Faustino Nebreda who
upon his death in 1945 left the lands involved in this litigation. Faustino Nebreda
left no other heir except his widow Maria Uson. However, plaintiff claims that
when Faustino Nebreda died in 1945, his common-law wife Maria del Rosario
took possession illegally of said lands thus depriving her of their possession and
enjoyment. Defendants in their answer set up as special defense that Uson and
her husband, executed a public document whereby they agreed to separate
as husband and wife and, in consideration of which Uson was given a parcel of
land and in return she renounced her right to inherit any other property that may
be left by her husband upon his death. CFI found for Uson. Defendants
appealed.
ISSUE:
1. W/N Uson has a right over the lands from the moment of death of her
husband.
2. W/N the illegit children of deceased and his common-law wife have
successional rights.

HELD:
1. Yes. There is no dispute that Maria Uson, is the lawful wife of Faustino
Nebreda, former owner of the five parcels of lands litigated in the present
case. There is likewise no dispute that Maria del Rosario, was merely a
common-law wife with whom she had four illegitimate children with the
deceased. It likewise appears that Faustino Nebreda died in 1945 much
prior to the effectivity of the new Civil Code. With this background, it is
evident that when Faustino Nebreda died in 1945 the five parcels of land
he was seized of at the time passed from the moment of his death to his
only heir, his widow Maria Uson (Art 777 NCC).As this Court aptly said, "The
property belongs to the heirs at the moment of the death of the ancestor
as completely as if the ancestor had executed and delivered to them a
deed for the same before his death". From that moment, therefore, the
rights of inheritance of Maria Uson over the lands in question became
vested.
The claim of the defendants that Maria Uson had relinquished her right over the
lands in question because she expressly renounced to inherit any future property
that her husband may acquire and leave upon his death in the deed of
separation, cannot be entertained for the simple reason that future inheritance
cannot be the subject of a contract nor can it be renounced.

2. No. The provisions of the NCC shall be given retroactive effect even
though the event which gave rise to them may have occurred under the
prior legislation only if no vested rights are impaired. Hence, since the right
of ownership of Maria Uson over the lands in question became vested in
1945 upon the death of her late husband, the new right recognized by
the new Civil Code in favor of the illegitimate children of the deceased
cannot, therefore, be asserted to the impairment of the vested right of
Maria Uson over the lands in dispute.
3. Borja v. Borja
46 SCRA 577
FACTS:
Francisco de Borja filed a petition for probate of the will of his wife who died,
Josefa Tangco, with the CFI of Rizal. He was appointed executor and
administrator, until he died; his son Jose became the sole administrator.
Francisco had taken a 2
nd
wife Tasiana before he died; she instituted testate
proceedings with the CFI of Nueva Ecija upon his death and was appointed
special administatrix. Jose and Tasiana entered upon a compromise
agreement, but Tasiana opposed the approval of the compromise agreement.
She argues that it was no valid, because the heirs cannot enter into such kind of
agreement without first probating the will of Francisco, and at the time the
agreement was made, the will was still being probated with the CFI of Nueva
Ecija.

ISSUE:
W/N the compromise agreement is valid, even if the will of Francisco has not yet
been probated.

HELD:
YES, the compromise agreement is valid.
The agreement stipulated that Tasiana will receive P800,000 as full payment for
her hereditary share in the estate of Francisco and Josefa.
There was here no attempt to settle or distribute the estate of Francisco
de Borja among the heirs thereto before the probate of his will. The clear object
of the contract was merely the conveyance by Tasiana Ongsingco of any and
all her individual share and interest, actual or eventual, in the estate of Francisco
de Borja and Josefa Tangco. There is no stipulation as to any other claimant,
creditor or legatee.
And as a hereditary share in a decedent's estate is transmitted or vested
immediately from the moment of the death of such causante or predecessor in
interest (Civil Code of the Philippines, Art. 777) there is no legal bar to a
successor (with requisite contracting capacity) disposing of her or his hereditary
share immediately after such death, even if the actual extent of such share is
not determined until the subsequent liquidation of the estate
Bonilla v. Barcena
71 SCRA 491
FACTS:
On March 31, 1975 Fortunata Barcena, mother of minors Rosalio Bonilla and
Salvacion Bonilla and wife of Ponciano Bonilla, instituted a civil action in the CFI
of Abra, to quiet title over certain parcels of land located in Abra. The
defendants filed a motion to dismiss the complaint on the ground that Fortunata
Barcena is dead and, therefore, has no legal capacity to sue. In the hearing for
the motion to dismiss, counsel for the plaintiff confirmed the death of Fortunata
Barcena, and asked for substitution by her minor children and her husband; but
the court after the hearing immediately dismissed the case on the ground that a
dead person cannot be a real party in interest and has no legal personality to
sue.

ISSUE:
W/N the CFI erred in dismissing the complaint.

HELD:
While it is true that a person who is dead cannot sue in court, yet he can be
substituted by his heirs in pursuing the case up to its completion. The records of
this case show that the death of Fortunata Barcena took place on July 9, 1975
while the complaint was filed on March 31, 1975. This means that when the
complaint was filed on March 31, 1975, Fortunata Barcena was still alive, and
therefore, the court had acquired jurisdiction over her person. Under Section 16,
Rule 3 of the Rules of Court "whenever a party to a pending case dies ... it shall
be the duty of his attorney to inform the court promptly of such death ... and to
give the name and residence of his executor, administrator, guardian or other
legal representatives." This duty was complied with by the counsel for the
deceased plaintiff when he manifested before the respondent Court that
Fortunata Barcena died on July 9, 1975 and asked for the proper substitution of
parties in the case. The respondent Court, however, instead of allowing the
substitution, dismissed the complaint on the ground that a dead person has no
legal personality to sue. This is a grave error. Article 777 of the Civil Code
provides "that the rights to the succession are transmitted from the moment of
the death of the decedent." From the moment of the death of the decedent,
the heirs become the absolute owners of his property, subject to the rights and
obligations of the decedent, and they cannot be deprived of their rights thereto
except by the methods provided for by law. The moment of death is the
determining factor when the heirs acquire a definite right to the inheritance
whether such right be pure or contingent. The right of the heirs to the property of
the deceased vests in them even before judicial declaration of their being heirs
in the testate or intestate proceedings. When Fortunata Barcena, therefore,
died, her claim or right to the parcels of land in litigation in Civil Case No. 856,
was not extinguished by her death but was transmitted to her heirs upon her
death. Her heirs have thus acquired interest in the properties in litigation and
became parties in interest in the case. There is, therefore, no reason for the
respondent Court not to allow their substitution as parties in interest for the
deceased plaintiff.
The claim of the deceased plaintiff which is an action to quiet title over the
parcels of land in litigation affects primarily and principally property and
property rights and therefore is one that survives even after her death. It is,
therefore, the duty of the respondent Court to order the legal representative of
the deceased plaintiff to appear and to be substituted for her. But what the
respondent Court did, upon being informed by the counsel for the deceased
plaintiff that the latter was dead, was to dismiss the complaint. This should not
have been done for under Section 17, Rule 3 of the Rules of Court, it is even the
duty of the court, if the legal representative fails to appear, to order the
opposing party to procure the appointment of a legal representative of the
deceased. Unquestionably, the respondent Court has gravely abused its
discretion in not complying with the clear provision of the Rules of Court in
dismissing the complaint of the plaintiff in Civil Case No. 856 and refusing the
substitution of parties in the case.
Suroza v. Honrado
110 SCRA 388
FACTS:
Spouses Mauro Suroza and Marcelina Salvador, who were childless, reared a
boy named Agapito. Agapito and his wife Nenita de Vera had a daughter
named Lilia. Nenita became Agapitos guardian when he became disabled. A
certain Arsenia de la Cruz also wanted to be his guardian in another
proceeding but it was dismissed. Arsenia then delivered a child named Marilyn
Sy to Marcelina who brought her up as a supposed daughter of Agapito.
Marilyn used the surname Suroza although not legally adopted by Agapito.
When Marcelina (who was an illiterate) was 73 years old, she supposedly
executed a notarial will which was in English and thumbmarked by her. In the
will, she allegedly bequeathed all her properties to Marilyn. She also named as
executrix her laundrywoman, Marina Paje. Paje filed a petition for probate of
Marcelinas will. Judge Honrado appointed Paje as administratrix and issued
orders allowing the latter to withdraw money from the savings account of
Marcelina and Marilyn, and instructing the sheriff to eject the occupants of
testatrixs house, among whom was Nenita. She and the other occupants filed a
motion to set aside the order ejecting them, alleging that Agapito was the sole
heir of the deceased, and that Marilyn was not the decedents granddaughter.
Despite this, Judge Honrado issued an order probating Marcelinas will.
Nenita filed an omnibus petition to set aside proceedings, admit opposition with
counter-petition for administration and preliminary injunction, and an opposition
to the probate of the will and a counter-petition for letters of administration,
which were dismissed by Judge Honrado. Instead of appealing, Nenita filed a
case to annul the probate proceedings but Judge Honrado dismissed it. The
judge then closed the testamentary proceeding after noting that the executrix
had delivered the estate to Marilyn, and that the estate tax had been paid.
Ten months later, Nenita filed a complaint before the SC, charging Judge
Honrado with having probated the fraudulent will of Marcelina. She reiterated
her contention that the testatrix was illiterate as shown by the fact that she
affixed her thumbmark to the will and that she did not know English, the
language in which the will was written. She further alleged that Judge Honrado
did not take into account the consequences of the preterition of testatrixs son,
Agapito. Judge Honrado in his comment did not deal specifically with the
allegations but merely pointed to the fact that Nenita did not appeal from the
decree of probate and that in a motion, she asked for a thirty day period within
which to vacate the house of the testatrix. Nenita subsequently filed in the CA a
petition for certiorari and prohibition against Judge Honrado wherein she
prayed that the will, the decree of probate and all the proceedings in the
probate case be declared void. The CA dismissed the petition because Nenitas
remedy was an appeal and her failure to do so did not entitle her to resort to
the special civil action of certiorari. Relying on that decision, Judge Honrado
filed a MTD the administrative case for having allegedly become moot and
academic.
ISSUE:
W/N 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.

HELD:
YES. Respondent judge, on perusing the will and noting that it was written in
English and was thumbmarked by an obviously illiterate testatrix, could have
readily perceived that the will is void. In the opening paragraph of the will, it was
stated that English was a language understood and known to the testatrix. But
in its concluding paragraph, it was stated that the will was read to the testatrix
and translated into Filipino language. 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.
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 the 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.
Matias v. Salud
L-10751, 23 June 1958

FACTS:
The CFI denied probate of the will of Gabina Raquel. It must be noted that
Gabina Raquel was suffering from herpes zoster that afflicted the right arm and
shoulder of the testatrix, which made writing difficult and a painful act. Thus,
upon the insistence of the attorney, Gabina attempted to sign, but since it was
so painful she just managed to thumbmarked the foot of the document and the
left margin at each page. The parties opposing the probate of the will
contended that the will was void due to the irregularities in the execution
thereof.
One of the points raised by the oppositors was that the finger mark can not be
regarded as the decedents valid signature as it does not show distinct
identifying ridgelines. And since the finger mark was an invalid signature, there
must appear in the attestation clause that another person wrote the testators
name at his request.

ISSUE:
W/N the will was valid.

HELD:
YES. As to the clarity of the ridge impressions, it is so dependent on
aleatory requirements as to require dexterity that can be expected of very few
persons; testators should not be required to possess the skill of trained officers.
And as to the validity of the thumbprints as signature, the SC held that it has
been held in a long line of cases that a thumbprint is always a valid and
sufficient signature for the purpose of complying with the requirement of the
article.
Furthermore, the validity of thumbprints should not be limited in cases of illness or
infirmity. A thumbprint is considered as a valid and sufficient signature in
complying with the requirements of the article.

Garcia v. Lacuesta
90:489
FACTS:
This case involves the will of Antero Mercado, which among other defects was
signed by the testator through a cross mark (an X). The will was signed by
Atty. Javier who wrote the name of Mercado as testator and the latter allegedly
wrote a cross mark after his name. The CFI allowed the will but the CA
disallowed it because its attestation clause was defective for failing to certify 1)
that the will was signed by Atty. Javier at the express direction of the testator, 2)
that the testator wrote a cross at the end of his name after Atty. Javier signed
for him, and 3) that the 3 witnesses signed the will in the presence of the testator
and of each other.

ISSUE:
Whether the will should be allowed despite the defect of the attestation clause
since the testator had placed a cross mark himself as his signature.
HELD:
The attestation clause is fatally defective for failing to state that Mercado
directed Javier to write the testators name under his express direction.
Petitioners argument that such recital is unnecessary because the testator
signed the will himself using a cross mark which should be considered the same
as a thumb-mark (which has been held sufficient in past cases) is not
acceptable. A cross mark is not the same as a thumb mark, because the cross
mark does not have the same trustworthiness of a thumb mark.

Barut v. Cabacungan
21:461
FACTS:
Barut applied for the probate of the will of deceased, Maria Salomon. The
testatrix stated in the will that being unable to read or write, the will was 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 was contested by
a number of the relatives of the deceased on various grounds.
The probate court found that the will was not entitled to probate because
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 to the person whose handwriting it was alleged
to be (i.e. The probate court denied probate because the signature seemed to
not have been by Severo Agayan but by another witness).

ISSUE:
Was the dissimilarity in handwriting sufficient to deny probate of the will?

HELD:
No. The SC found that the mere dissimilarity in writing is sufficient to
overcome the uncontradicted testimony of all the witnesses that the signature
of the testatrix was written by Severo Agayan. It is also 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.
Based on Section 618 of the Code of Civil Procedure, it is 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 3 witnesses and that they attested and subscribed it in her presence
and in the presence of each other. It may be wise that the one who signs the
testators name signs also his own; but that is not essential to the validity of the
will.
The court also held that the 3 cases cited by the lower court was not
applicable. In those cases, the person who signed the will for the testator wrote
his own name instead of the testators, so that the testators name nowhere
appeared in the will, and were thus wills not duly executed.

Icasiano v. Icasiano
11 SCRA 422

FACTS:
Celso Icasiano filed a petition for the allowance and admission to probate of
the alleged will of Josefa Villacorte, and for his appointment as executor
thereof. Natividad and Enrique Icasiano, a daughter and son of the testatrix,
filed their opposition thereto. During the course of the trial, on 19 March 1959,
Celso, started to present his evidence. But later, on 1 June 1959, he then filed an
amended and supplemental petition, alleging that the decedent had left a will
executed in duplicate and with all the legal requirements, and that he was
submitting the duplicate to the court, which he found only on 26 May 1959.
Natividad and Enrique filed their opposition, but the will and its duplicate was
admitted to probate by the trial court. Hence, this appeal by the oppositors.
Oppositors-appellants (Natividad and Enrique) in turn introduced expert
testimony to the effect that the signatures of the testatrix in the duplicate 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.

ISSUE:
Was the trial court correct in admitting the will and its duplicate to probate
given the allegations of forgery of the testators signature, or that the will was
executed under circumstances constituting fraud and undue influence and
pressure?

(Not raised by the appellants in the case but discussed by the Court and in Sirs
book) Is the failure of one of the witnesses to sign a page of the will fatal to its
validity?

HELD:
The Supreme Court dismissed the appeal, holding that both the will and its
duplicate are valid in all respects.

On the allegations of forgery, fraud and undue influence:
The Court is satisfied that all the requisites for the validity of a will have been
complied with. The opinion of a handwriting expert trying to prove forgery of
the testatrix's signature failed to convince the Court, not only because it is
directly contradicted by another expert but principally because of the paucity
of the standards used by him (only three other signatures), considering the
advanced age of the testatrix, the evident variability of her signature, and the
effect of writing fatigue.
Similarly, the alleged slight variance in blueness of the ink in the admitted and
questioned signatures does not appear reliable, considering that standard and
challenged writings were affixed to different kinds of paper, with different
surfaces and reflecting power. On the whole, the testimony of the oppositor's
expert is insufficient to overcome that of the notary and the two instrumental
witnesses as to the wills execution, which were presented by Celso during the
trial.
Nor is there adequate evidence of fraud or undue influence. The fact that
some heirs are more favored than others is proof of neither. Diversity of
apportionment is the usual reason for making a testament; otherwise, the
decedent might as well die intestate. The testamentary disposition 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 occasion. It is also well to note that 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 failure of a witness to sign a page in the original, but signed all pages in
the duplicate:
The records show that the original of the will 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 3 thereof; but the
duplicate copy attached to the amended and supplemental petition is signed
by the testatrix and her three attesting witnesses in each and every page.
Witness Atty. Natividad, who testified on his failure to sign page 3 of the original,
admits that he may have lifted two pages instead of one when he signed the
same, but affirmed that page 3 was signed in his presence.
The failure Atty. 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. Therefore, Atty.
Natividads failure to sign page 3 of the original through mere inadvertence
does not affect the wills validity.
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.
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 mark 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 bad 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 is not entitled to probate. Since they opposed probate
of the 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, 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 serves
to prove that the omission of one signature in the third page of the original
testament was inadvertent and not intentional.

Cagro v. Cagro
92:1032
FACTS:
Vicente Cagro died on Feb. 14, 1949 in Samar. Since the decedent allegedly
made a will prior to his death, the will was probated before the CFI of Samar.
However, the oppositors-appellant objected the probate proceeding alleging
that the will is fatally defective because its attestation clause is not signed by the
attesting witnesses. It is undisputed 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.

ISSUE:
W/N the will may be probated even if the signatures of the witnesses do not
appear at the bottom of the attestation clause, and instead, they were placed
on the left-hand margin of the page containing the same.

HELD:
No. The position taken by the oppositor-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-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.

Cruz v. Villasor
54 SCRA 752
FACTS:
The CFI of Cebu allowed the probate of Valente Z. Cruzs last will and testament.
His surviving spouse, Agapita Cruz, opposed the allowance of the will alleging it
was executed through fraud, deceit, misrepresentation and undue influence;
that the said instrument was execute without the testator having been fully
informed of the content thereof, particularly as to what properties he was
disposing and that the supposed last will and testament was not executed in
accordance with law. Agapita appealed the allowance of the will by certiorari.

ISSUE:
W/N the will was executed in accordance with law (particularly Articles 805 and
806 of the NCC, 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.).

HELD:
NO. Of the three instrumental witnesses to the will, one of them (Atty. Teves) is at
the same time the Notary Public before whom the will was supposed to have
been acknowledged. 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; Castro v. Castro); to own as
genuine, to assent, to admit; and "before" means in front or preceding in space
or ahead of. Consequently, if the third witness were the notary public himself, he
would have to avow assent, or admit his having signed the will in front of himself.
This cannot be done because he cannot split his personality into two so that one
will appear before the other to acknowledge his participation in the making of
the will. To permit such a situation to obtain would be sanctioning a sheer
absurdity. Furthermore, the function of a notary public is, among others, to
guard against any illegal or immoral arrangement (Balinon v. De Leon). That
function would defeated if the notary public were one of the attesting
instrumental witnesses. It would place him in inconsistent position and the very
purpose of acknowledgment, which is to minimize fraud, would be thwarted.
Admittedly, there are American precedents holding that notary public may, in
addition, act as a witness to the executive of the document he has notarized.
There are others holding that his signing merely as notary in a will nonetheless
makes him a witness thereon. 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 these cases merely acted as
instrumental, subscribing attesting witnesses, and not as acknowledging
witnesses. Here, the notary public acted not only as attesting witness but also
acknowledging witness, a situation not envisaged by Article 805-06. Probate of
will set aside.

Javellana v. Ledesma
97:258
FACTS:
The Court of First Instance of Iloilo admitted to probate the documents in the
Visayan dialectas 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, 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. Ledesma is
questioning the validity of the codicil contending that the fact that the notary
did not sign the instrument in the presence of the testator and the witness made
the codicil was not executed in conformity with the law

ISSUE:
W/N the codicil was validly executed.

HELD:
The instrumental witnesses (who happen to be the same ones who attested the
will of 1950) asserted that after the codicil had been signed by the testatrix and
the witnesses at the San Pablo Hospital, the same was signed and sealed by
notary public Gimotea on the same occasion. On the other hand, Gimotea
affirmed that he did not do so, but brought the codicil to his office, and signed
and sealed it there. The variance does not necessarily imply conscious
perversion of truth on the part of the witnesses, but appears rather due to a well-
established phenomenon, the tendency of the mind, in recalling past events, to
substitute the usual and habitual for what differs slightly from it.
Whether or not the notary signed the certification of acknowledgment in the
presence of the testatrix and the witnesses, does not affect the validity of the
codicil. The new Civil Code does not require that the signing of the testator,
witnesses and notary should be accomplished in one single act. A comparison
of Articles 805 and 806 of the new Civil Code reveals that while testator and
witnesses sign in the presence of each other, all that is thereafter required is that
"every will must be acknowledged before a notary public by the testator and
the witnesses" (Art. 806); i.e., that the latter should avow to the certifying officer
the authenticity of their signatures and the voluntariness of their actions in
executing the testamentary disposition. This was done in this case. The
subsequent signing and sealing by the notary of his certification that the
testament was duly acknowledged by the participants therein is no part of the
acknowledgment itself nor of the testamentary act. Hence their separate
execution out of the presence of the testatrix and her witnesses cannot be said
to violate the rule that testaments should be completed without interruption. It is
noteworthy that Article 806 of the new Civil Code does not contain words
requiring that the testator and the witnesses should acknowledge the testament
on the same day or occasion that it was executed.


Garcia v. Vasquez
32 SCRA 489

FACTS:
This is a petition for appeal from the CFI of Manila admitting to probate the will
of Gliceria Avelino del Rosario (Gliceria) executed in 1960. Likewise, this is also
an appeal to remove the current administrator, Consuelo Gonzales-Precilla(
Consuelo) as special administratrix of the estate on the ground of Consuelo
possesses interest adverse to the estate and to order the RD of Manila to
annotate on the registered lands a notice of Lis Pendens.
When Gliceria died she had no descendants, ascendants, bros or sisses and 90
yrs old. After which, her niece, Consuelo petitioned the court to be the
administratrix of the properties. The court approved this because Consuelo has
been was already managing the properties of the deceased during her lifetime.
What the respondents allege is that in the last years of the deceased, Consuelo
sought the transfer of certain parcels of land valued at 300k for a sale price of
30k to her husband Alfonso through fraud and intimidation. In addition, the
oppositors presented evidence that Consuelo asked the court to issue new
Certificates of Titles to certain parcels of land for the purpose of preparing the
inventory to be used in the probate. Also shown was that NEW TCTs were issued
by the RD for certain lands of the deceased after Consuelo asked for the old
TCTs.
At the end of the probate proceedings, the court ruled that Counsuelo should
be made the administrator, and that the will was duly executed because of
these reasons: NO EVIDENCE HAS BEEN PRESENTED to establish that the
deceased was not of sound mind, that eventough the allegations state that the
deceased prepared another will in 1956 (12pages), the latter is not prevented
from executing another will in 1960 (1page), and that inconsistencies in the
testimonies of the witnesses prove their truthfulness.

ISSUE:
Was the will in 1960 (1 page) duly/properly executed?

HELD:
NO. Provision of Article 808 mandatory. Therefore, For all intents and purposes of
the rules on probate, the testatrix was like a blind testator, and the due
execution of her will would have required observance of Article 808. 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. Likewise, the 1970 will was done in Tagalog which
the deceased is not well versed but in Spanish. This creates doubt as to the due
execution of the will and as well as the typographical errors contain therein
which show the haste in preparing the 1 page will as compared to the 12 page
will created in 1956 written in Spanish. ALSO, as to the blindness, there was proof
given by the testimony of the doctor that the deceased could not read at near
distances because of cataracts. (Testatrixs vision was mainly for viewing distant
objects and not for reading print.) Since there is no proof that it was read to the
deceased twice, the will was NOT duly executed.
ALSO, Consuelo should be removed as administrator because she is not
expected to sue her own husband to reconvey the lands to the estate alleged
to have been transferred by the deceased to her own husband.
The notice of lis pendens is also not proper where the issue is not an action in
rem, affecting real property or the title thereto.

Alvarado v. Gaviola
226 SCRA 347
FACTS:
On 5 November 1977, 79-year old Brigido Alvarado executed a notarial will
entitled Huling Habilin wherein he disinherited an illegitimate son, petitioner
Cesar Alvarado, and expressly revoked a previously executed holographic will
at the time awaiting probate before the RTC of Laguna.
According to Bayani Ma. Rino, private respondent, he was present when the
said notarial will was executed, together with three instrumental witnesses and
the notary public, where the testator did not read the will himself, suffering as he
did from glaucoma.
Rino, a lawyer, drafted the eight-page document and read the same aloud
before the testator, the three instrumental witnesses and the notary public, the
latter four following the reading with their own respective copies previously
furnished them.
Thereafter, a codicil entitled Kasulatan ng Pagbabago ng 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 testators eye operation.
Said codicil was likewise not read by Brigido Alvarado and was read in the same
manner as with the previously executed will.
When the notarial will was submitted to the court for probate, Cesar Alvarado
filed his opposition as he said that the will was not executed and attested as
required by law; that the testator was insane or mentally incapacitated due to
senility and old age; that the will was executed under duress, or influence of fear
or threats; that it was procured by undue pressure and influence on the part of
the beneficiary; and that the signature of the testator was procured by fraud or
trick.


ISSUE:
W/N notarial will of Brigido Alvarado should be admitted to probate despite
allegations of defects in the execution and attestation thereof as testator was
allegedly blind at the time of execution and the double-reading requirement
under Art. 808 of the NCC was not complied with.

HELD:
YES. The spirit behind the law was served though the letter was not. Although
there should be strict compliance with the substantial requirements of 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 testators will.
Cesar Alvardo was correct in asserting that his father was not totally blind (of
counting fingers at 3 feet) when the will and codicil were executed, but he can
be so considered for purposes of Art. 808.
That Art. 808 was not followed strictly is beyond cavil.
However, in the case at bar, there was substantial compliance where the
purpose of the law has been satisfied: that of making the provisions known to
the testator who is blind or incapable of reading the will himself (as when he is
illiterate) and enabling him to object if they do not accord with his wishes.
Rino read the testators 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 acknowledgment take place.
There is no evidence that the contents of the will and the codicil were not
sufficiently made known and communicated to the testator.
With four persons, mostly known to the testator, 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 were the terms actually
appearing on the typewritten documents.
The rationale behind the requirement of reading the will to the testator if he is
blind or incapable of reading the will to 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.
Although there should be strict compliance with the substantial requirements of
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 testators will.


Caneda v. CA
222 SCRA 781
FACTS:
On December 5, 1978, Mateo Caballero, a widower without any children and
already in the twilight years of his life, executed a last will and testament at his
residence before 3 witnesses.
He was assisted by his lawyer, Atty. Emilio Lumontad.
In the will, it was declared that the testator was leaving by way of legacies and
devises his real and personal properties to several people all of whom do not
appear to be related to the testator.
4 months later, Mateo Caballero himself filed a case seeking the probate of his
last will and testament, but numerous postponements pushed back the initial
hearing of the probate court regarding the will.
On May 29, 1980, the testator passed away before his petition could finally be
heard by the probate court.
Thereafter one of the legatees, Benoni Cabrera, sought his appointment as
special administrator of the testators estate.
Thereafter, the petitioners, claiming to be nephews and nieces of the testator,
instituted a second petition for intestate proceedings. They also opposed the
probate of the testators will and the appointment of a special administrator for
his estate.
Benoni Cabrera died and was replaced by William Cabrera as special
administrator and gave an order that the testate proceedings for the probate of
the will had to be heard and resolved first.
In the course of the proceedings, petitioners opposed to the allowance of the
testators will on the ground that on the alleged date of its execution, the
testator was already in poor state of health such that he could not have possibly
executed the same. Also the genuineness of the signature of the testator is in
doubt.
On the other hand, one of the attesting witnesses and the notary public testified
that the testator executed the will in question in their presence while he was of
sound and disposing mind and that the testator was in good health and was not
unduly influenced in any way in the execution of his will.
Probate court then rendered a decision declaring the will in question as the last
will and testament of the late Mateo Caballero.
CA affirmed the probate courts decision stating that it substantially complies
with Article 805. Hence this appeal.

ISSUE:
W/N the attestation clause in the will of the testator is fatally defective or can be
cured under the art. 809.

HELD:
No. It does not comply with the provisions of the law.
Ordinary or attested wills are governed by Arts. 804 to 809. The will must be
acknowledged before a notary public by the testator and the attesting
witnesses. The attestation clause need not be written in a language known to
the testator or even to the attesting witnesses.
It is a separate memorandum or record of the facts surrounding the conduct of
execution and once signed by the witnesses it gives affirmation to the fact that
compliance with the essential formalities required by law has been observed.
The attestation clause, therefore, provides strong legal guaranties for the due
execution of a will and to insure the authenticity thereof.
It is contended by petitioners that the attestation clause in the will failed to
specifically state the fact that the attesting witnesses witnessed the testator sign
the will and all its pages in their presence and that they, the witnesses, likewise
signed the will and every page thereof in the presence of the testator and of
each other. And the Court agrees.
The attestation clause does not expressly state therein the circumstance that
said witnesses subscribed their respective signatures to the will in the presence of
the testator and of each other.
The phrase, and he has signed the same and every page thereof, on the
space provided for his signature and on the left hand margin, obviously refers
to the testator and not the instrumental witnesses as it is immediately preceded
by the words as his last will and testament.
Clearly lacking is the statement that the witnesses signed the will and every
page thereof in the presence of the testator and of one another. That the
absence of the statement required by law is a fatal defect or imperfection
which must necessarily result in the disallowance of the will that is here sought to
be probated.
Also, Art. 809 does not apply to the present case because the attestation clause
totally omits the fact that the attesting witnesses signed each and every page
of the will in the presence of the testator and of each other. The defect in this
case is not only with respect to the form or the language of the attestation
clause. The defects must be remedied by intrinsic evidence supplied by the will
itself which is clearly lacking in this case.
Therefore, the probate of the will is set aside and the case for the intestate
proceedings shall be revived.
Article 809 cannot be used to cure the defects of the will when it does not
pertain to the form or language of the will. This is because there is not substantial
compliance with Article 805.

Azuela v. CA
487 SCRA 119

Roxas v. De Jesus
134 SCRA 245

FACTS:
Bibiane Roxas died. Her brother, Simeon Roxas, filed a spec. pro. for partition of
the estate of the deceased and also delivered the holographic will of the
deceased. Simeon stated that he found a notebook belonging to deceased,
which contained a letter-will entirely written and signed in deceaseds
handwriting. The will is dated "FEB./61 " and states: "This is my will which I want to
be respected although it is not written by a lawyer. Roxas relatives corroborated
the fact that the same is a holographic will of deceased, identifying her
handwriting and signature. Respondent opposed probate on the ground that it
such does not comply with Article 810 of the CC because the date contained in
a holographic will must signify the year, month, and day.

ISSUE:
W/N the date "FEB./61 " appearing on the holographic Will of the deceased
Bibiana Roxas de Jesus is a valid compliance with the Article 810 of the Civil
Code.

HELD:
Valid date.
This will not be the first time that this Court departs from a strict and literal
application of the statutory requirements regarding the due execution of Wills.
The underlying and fundamental objectives permeating the provisions of the
law wills 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. If a Will has been executed in substantial compliance with the
formalities of the law, and the possibility of bad faith and fraud in the exercise
thereof is obviated, said Will should be admitted to probate (Rey v. Cartagena
56 Phil. 282).
If the testator, in executing his Will, attempts to comply with all the requisites,
although compliance is not literal, it is sufficient if the objective or purpose
sought to be accomplished by such requisite is actually attained by the form
followed by the testator. In Abangan v. Abanga 40 Phil. 476, we ruled that: The
object of the solemnities surrounding the execution of wills is to close the door
against bad faith and fraud, to avoid substitution of wills and testaments and to
guaranty their truth and authenticity. ...
In particular, a complete date is required to provide against such contingencies
as that of two competing Wills executed on the same day, or of a testator
becoming insane on the day on which a Will was executed (Velasco v. Lopez, 1
Phil. 720). There is no such contingency in this case.
We have carefully reviewed the records of this case and found no evidence of
bad faith and fraud in its execution nor was there any substitution of Wins and
Testaments. There is no question that the holographic Will of the deceased
Bibiana Roxas de Jesus was entirely written, dated, and signed by the testatrix
herself and in a language known to her. There is also no question as to its
genuineness and due execution. All the children of the testatrix agree on the
genuineness of the holographic Will of their mother and that she had the
testamentary capacity at the time of the execution of said Will. The objection
interposed by the oppositor-respondent Luz Henson is that the holographic Will is
fatally defective because the date "FEB./61 " appearing on the holographic Will
is not sufficient compliance with Article 810 of the Civil Code. This objection is
too technical to be entertained.
As a general rule, the "date" in a holographic Will should include the day, month,
and year of its execution. However, when as in the case at bar, there is no
appearance of fraud, bad faith, undue influence and pressure and the
authenticity of the Will is established and the only issue is whether or not the
date "FEB./61" appearing on the holographic Will is a valid compliance with
Article 810 of the Civil Code, probate of the holographic Will should be allowed
under the principle of substantial compliance.

Labrador v. CA
184 SCRA 170

FACTS:
Melecio died leaving behind a parcel of land to his heirs. However, during
probate proceedings, Jesus and Gaudencio filed an opposition on the ground
that the will has been extinguished by implication of law alleging that before
Melecios death, the land was sold to them evidenced by TCT No. 21178. Jesus
eventually sold it to Navat.
Trial court admitted the will to probate and declared the TCT null and void.
However, the CA on appeal denied probate on the ground that it was
undated.

ISSUE:
W/N the alleged holographic will is dated, as provided for in Article 810 of CC.

HELD:
YES. The law does not specify a particular location where the date should
be placed in the will. The only requirements are that the date be in the will itself
and executed in the hand of the testator.
The intention to show March 17 1968 as the date of the execution is plain from
the tenor of the succeeding words of the paragraph. It states that this being in
the month of March 17
th
day, in the year 1968, and this decision and or
instruction of mine is the matter to be followed. And the one who made this
writing is no other than Melecio Labrador, their father. This clearly shows that
this is a unilateral act of Melecio who plainly knew that he was executing a will.


Gan v. Yap
FACTS:
Felicidad Yap died of a heart failure, leaving properties in Pulilan, Bulacan, and
in Manila.
Fausto E. Gan, her nephew, initiated the proceedings in the Manila CFI with a
petition for the probate of a holographic will allegedly executed by the
deceased.
The will was not presented because Felicidads husband, Ildefonso, supposedly
took it. What was presented were witness accounts of relatives who knew of her
intention to make a will and allegedly saw it as well. According to the witnesses,
Felicidad did not want her husband to know about it, but she had made known
to her other relatives that she made a will.
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 Judge refused to
probate the alleged will on account of the discrepancies arising from the facts.
For one thing, it is strange that Felicidad made her will known to so many of her
relatives when she wanted to keep it a secret and she would not have carried it
in her purse in the hospital, knowing that her husband may have access to it.
There was also no evidence presented that her niece was her confidant.
In the face of these improbabilities, the trial judge had to accept the oppositors
evidence that Felicidad did not and could not have executed such
holographic will.

ISSUE:
1. 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?
2. W/N Felicidad could have executed the holographic will.

HELD:
1. No. The will must be presented.
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 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. 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. 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.
With regard to 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."
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 need not have seen the execution of the holographic will, but
they must be familiar with the decedents handwriting. 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 authenticity

the
testator's handwriting has disappeared.
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. Could Rule 77 be
extended, by analogy, to holographic wills? (NO)
Spanish commentators agree that one of the greatest objections to the
holographic will is that it may be lost or stolen an implied admission that such
loss or theft renders it useless.
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.
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.(According to the Fuero, 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.
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.
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 admissible 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.
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.
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.

2. No. 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.

Rodelas v. Aranza
119 SCRA 16
FACTS:
Rodelas filed a petition with the CFI of Rizal for the probate of the holographic
will of Ricardo B. Bonilla and the issuance of letters testamentary in her favor.
Aranza, et al. filed a MTD on the grounds of:
1. Rodelas was estopped from claiming that the deceased left a will by
failing to produce the will within twenty days of the death of the testator
as required by Rule 75, section 2 of the Rules of Court;
2. the 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, it was merely an instruction as to the
management and improvement of the schools and colleges founded by
the decedent;
3. the hollographic will itself, and not an alleged copy thereof, must be
produced, otherwise it would produce no effect because lost or
destroyed holographic wills cannot be proved by secondary evidence
unlike ordinary wills
4. the deceased did not leave any will, holographic or otherwise, executed
and attested as required by law.
MTD was denied. Aranza et al. filed an MR, Rodelas filed an opposition.
The CFI set aside its order and dismissed the petition for the probate of the will
stating that 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.
And that the alleged holographic will was executed on January 25, 1962 while
Ricardo B. Bonilla died on May 13, 1976. The lapse of more than 14 years from
the time of the execution of the will to the death of the decedent and the fact
that the original of the will could not be located shows to that the decedent
had discarded the alleged holographic will before his death.
Rodelas filed an MR which was denied. Rodelas appealed to the CA. Aranza et
al. moved to forward the case to the SC as it involves a question of law not of
fact.

ISSUE:
W/N a holographic will which was lost or cannot be found can be proved by
means of a photostatic copy.

HELD:
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.
But, a photostatic copy or xerox copy of the holographic will may be allowed
because comparison can be made by the probate court with the standard
writings of the testator. The probate court would be able to determine the
authenticity of the handwriting 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,"

Azaola v. Singson
109:102
FACTS:
Fortunata S. Vda. De Yance died in Quezon City on September 9, 1957.
Petitioner submitted for probate her holographic will, in which Maria Azaola was
made the sole heir as against the nephew, who is the defendant. Only one
witness, Francisoco Azaola, was presented to testify on the handwriting of the
testatrix. He testified that he had seen it one month, more or less, before the
death of the testatrix, as it was given to him and his wife; and that it was in the
testatrixs handwriting. He presented the mortgage, the special power of the
attorney, and the general power of attorney, and the deeds of sale including
an affidavit to reinforce his statement. Two residence certificates showing the
testatrixs signature were also exhibited for comparison purposes.
The probate was opposed 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 "did not prove sufficiently that the
body of the will was written in the handwriting of the testatrix."
Petitioner 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.

ISSUE:
W/N Article 811 of the Civil Code is mandatory or permissive.

HELD:
Article 811
1
is merely permissive and not mandatory. Since the authenticity
of the will was not contested, petitioner was not required to produce more than
one witness; but even if the genuineness of the holographic will were contested,
Article 811 can not be interpreted 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.
This is the reason why the 2
nd
paragraph of Article 811 allows the court to resort
to expert evidence. The law foresees the possibility that no qualified 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 will), and provides for resort to
expert evidence to supply the deficiency.
What the law deems essential is that the court should be convinced of the will's
authenticity. Where the prescribed number of witnesses is produced and the
court is convinced by their testimony that the will is genuine, it may consider it
unnecessary to call for expert evidence. On the other hand, if no competent
witness is available, or none of those 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 available lines of inquiry, for the state is as much interested as
the proponent that the true intention of the testator be carried into effect.




Codoy v. Calugay
312 SCRA 333
FACTS:
On 6 April 1990, Evangeline Calugay, Josephine Salcedo and Eufemia Patigas,
devisees and legatees of the holographic will of the deceased Matilde Seo
Vda. de Ramonal, filed a petition for probate of the said will. They attested to
the genuineness and due execution of the will on 30 August 1978.
Eugenio Ramonal Codoy and Manuel Ramonal filed their opposition claiming
that the will was a forgery and that the same is even illegible. They raised doubts
as regards the repeated appearing on the will after every disposition, calling the
same out of the ordinary. If the will was in the handwriting of the deceased, it
was improperly procured.
Evangeline Calugay, etc. presented 6 witnesses and various documentary
evidence.
The first witness was the clerk of court of the probate court who produced and
identified the records of the case bearing the signature of the deceased.
The second witness was election registrar who was made to produce and
identify the voters affidavit, but failed to as the same was already destroyed
and no longer available.
The third, the deceaseds niece, claimed that she had acquired familiarity with
the deceaseds signature and handwriting as she used to accompany her in
collecting rentals from her various tenants of commercial buildings and the
deceased always issued receipts. The niece also testified that the deceased left
a holographic will entirely written, dated and signed by said deceased.
The fourth witness was a former lawyer for the deceased in the intestate
proceedings of her late husband, who said that the signature on the will was
similar to that of the deceased but that he can not be sure.
The fifth was an employee of the DENR who testified that she was familiar with
the signature of the deceased which appeared in the latters application for
pasture permit. The fifth, respondent Evangeline Calugay, claimed that she had
lived with the deceased since birth where she had become familiar with her
signature and that the one appearing on the will was genuine.
Codoy and Ramonals demurrer to evidence was granted by the lower court. It
was reversed on appeal with the Court of Appeals which granted the probate.


ISSUE:
1. W/N Article 811 of the Civil Code, providing that at least three witnesses
explicitly declare the signature in a contested will as the genuine
signature of the testator, is mandatory or directory.
2. Whether or not the witnesses sufficiently establish the authenticity and due
execution of the deceaseds holographic will.

HELD:
1. YES. The word shall connotes a mandatory order, an imperative
obligation and is inconsistent with the idea of discretion and that the
presumption is that the word shall, when used in a statute, is mandatory.
In the case at bar, the goal to be achieved by the law, is to give effect to the
wishes of the deceased and the evil to be prevented is the possibility that
unscrupulous individuals who for their benefit will employ means to defeat the
wishes of the testator.
The paramount consideration in the present petition is to determine the true
intent of the deceased.

2. NO. We cannot be certain that the holographic will was in the
handwriting of the deceased.
The clerk of court was not presented to declare explicitly that the signature
appearing in the holographic will was that of the deceased.
The election registrar was not able to produce the voters affidavit for
verification as it was no longer available.
The deceaseds niece saw pre-prepared receipts and letters of the deceased
and did not declare that she saw the deceased sign a document or write a
note.
The will was not found in the personal belongings of the deceased but was in
the possession of the said niece, who kept the fact about the will from the
children of the deceased, putting in issue her motive.
Evangeline Calugay never declared that she saw the decreased write a note or
sign a document.
The former lawyer of the deceased expressed doubts as to the authenticity of
the signature in the holographic will.
(As it appears in the foregoing, the three-witness requirement was not complied
with.)
A visual examination of the holographic will convinces that the strokes are
different when compared with other documents written by the testator.
The records are remanded to allow the oppositors to adduce evidence in
support of their opposition.
The object of solemnities surrounding the execution of wills is to close the door
against bad faith and fraud, to avoid substitution of wills and testaments and to
guaranty their truth and authenticity. Therefore, the laws on this subject should
be interpreted in such a way as to attain these primordial ends. But, on the other
hand, also one must not lose sight of the fact that it is not the object of the law
to restrain and curtail the exercise the right to make a will.
However, we cannot eliminate the possibility of a false document being
adjudged as the will of the testator, which is why if the holographic will is
contested, the law requires three witnesses to declare that the will was in the
handwriting of the deceased.
Article 811, paragraph 1. provides: 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.
The word shall connotes a mandatory order, an imperative obligation and is
inconsistent with the idea of discretion and that the presumption is that the word
shall, when used in a statute, is mandatory.



Kalaw v. Relova
132 SCRA 237
FACTS:
On September 1, 1971,Gregorio Kalaw, claiming to be the sole heir of his
deceased sister, Natividad Kalaw, filed a petition for the probate of her
holographic Will executed on December 24, 1968.
The holographic Will, as first written, named Rosa Kalaw, a sister of the testatrix as
her sole heir. She opposed probate alleging that the holographic Will contained
alterations, corrections, and insertions without the proper authentication by the
full signature of the testatrix as required by Article 814 of the Civil Code reading:
Art. 814. In case of any insertion, cancellation, erasure or alteration in a
holographic will the testator must authenticate the same by his full signature.
ROSA's position was that the holographic Will, as first written, should be given
effect and probated so that she could be the sole heir thereunder.
Trial Court denied petition to probate the holographic will. Reconsideration
denied.

ISSUE:
W/N the original unaltered text after subsequent alterations and insertions were
voided by the Trial Court for lack of authentication by the full signature of the
testatrix, should be probated or not, with Rosa as sole heir.

HELD:
Ordinarily, when a number of erasures, corrections, and interlineations made by
the testator in a holographic Will litem not been noted under his signature, ... the
Will is not thereby invalidated as a whole, but at most only as respects the
particular words erased, corrected or interlined.
However, when as in this case, the holographic Will in dispute had only one
substantial provision, which was altered by substituting the original heir with
another, but which alteration did not carry the requisite of full authentication by
the full signature of the testator, the effect must be that the entire Will is voided
or revoked for the simple reason that nothing remains in the Will after that which
could remain valid. To state that the Will as first written should be given efficacy
is to disregard the seeming change of mind of the testatrix. But that change of
mind can neither be given effect because she failed to authenticate it in the
manner required by law by affixing her full signature,
The ruling in Velasco, supra, must be held confined to such insertions,
cancellations, erasures or alterations in a holographic Will, which affect only the
efficacy of the altered words themselves but not the essence and validity of the
Will itself. As it is, with the erasures, cancellations and alterations made by the
testatrix herein, her real intention cannot be determined with certitude.


Gonzales v. CA
90 SCRA 183
FACTS:
Isabel Gabriel died on June 7, 1961 without issue. Lutgarda Santiago
(respondent), niece of Isabel, filed a petition for probate of Isabel's will
designating her as the principal beneficiary and executrix. The will was
typewritten in Tagalog and was executed 2 months prior to death of Isabel.
The petition was opposed by Rizalina Gonzales (petitioner), also a niece of
Isabel, on the following grounds: 1. the will is not genuine, 2. will was not
executed and attested as required by law, 3. the decedent at the time of the
making of the will did not have testamentary capacity due to her age and
sickness, and 4. the will was procured through undue influence.
The trial court disallowed the probate of the will but the Court of Appeals
Reversed the said decision of the trial court. The petitioner filed a petition for
review with SC claiming that the CA erred in holding that the will of the
decedent was executed and attested as required by law when there was
absolutely no proof that the 3 instrumental witnesses are credible.

ISSUE:
1. 1. Can a witness be considered competent under Art 820-821 and still not
be considered credible as required by Art. 805?
2. Is it required that there must be evidence on record that the witness to a
will has good standing in his/her community or that he/she is honest
or upright?

HELD:
1. Yes. The petitioner submits that the term credible in Article 805 requires
something more than just being competent and, therefore, a witness in
addition to being competent under Articles 820-821 must also be credible
under Art. 805. The competency of a person to be an instrumental witness
to a will is determined by the statute (Art. 820 and 821), whereas his
credibility depends on the appreciation of his testimony and arises from
the belief and conclusion of the Court that said witness is telling the truth.
In the case of Vda. de Aroyo v. El Beaterio del Santissimo Rosario de Molo,
No. L-22005, May 3, 1968, the Supreme Court held and ruled that:
"Competency as a witness is one thing, and it is another to be a credible
witness, so credible that the Court must accept what he says. Trial courts
may allow a person to testify as a witness upon a given matter because
he is competent, but may thereafter decide whether to believe or not to
believe his testimony."

2. No. There is no mandatory requirement that the witness testify initially or at
any time during the trial as to his good standing in the community, his
reputation for trustworthiness and for being reliable, his honesty and
uprightness (such attributes are presumed of the witness unless the
contrary is proved otherwise by the opposing party) in order that his
testimony may be believed and accepted by the trial court. It is enough
that the qualifications enumerated in Article 820 of the Civil Code are
complied with, such that the soundness of his mind can be shown by or
deduced from his answers to the questions propounded to him, that his
age (18 years or more) is shown from his appearance, testimony , or
competently proved otherwise, as well as the fact that he is not blind,
deaf or dumb and that he is able to read and write to the satisfaction of
the Court, and that he has none of the disqualifications under Article 821
of the Civil Code.


Gago v. Mamuyac
49:902
FACTS:
Miguel Mamuyac died on January 2, 1922. It appears from the record that
Miguel executed a last will and testament on July 27, 1918. Gago presented
such will for probate which was opposed by Cornelio Mamuyac et. al. Said
petition for probate was denied on the ground that the deceased executed
another will on April 16, 1919. Gago presented the April 16 will for probate which
was again opposed by Cornelio et. al. alleging that the will presented by Gago
is a carbon copy of the original April 16 will; such will was cancelled during the
lifetime of the deceased; and that said will was not the last will and testament of
the deceased. The RTC found that the deceased executed another will on
December 30, 1920.

ISSUE:

W/N the April 16 will was cancelled.

HELD:
YES. With reference to the said cancellation, it may be stated that there is
positive proof, not denied, which was accepted by the lower court, that will in
question had been cancelled in 1920. 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
of 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 view of the fact that the original will of 1919 could not be found after the
death of the testator Miguel Mamuyac and in view of the positive proof that the
same had been cancelled, we are forced to the conclusion that the
conclusions of the lower court are in accordance with the weight of the
evidence. In a proceeding to probate a will the burden of proofs 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.

Gallanosa v. Arcangel
83 SCRA 676
FACTS:
Florentino Hitosis was a childless widower and was survived by his brother Lito. In
his will, Florentino bequeathed his share in the conjugal estate to his second
wife, Tecla, and, should Tecla predecease him, as was the case, his share
would be assigned to spouses Gallanosa. Pedro Gallanosa was Teclas son by
her first marriage who grew up under the care of Florentino. His other properties
were bequeathed to his protg Adolfo Fortajada.
Upon his death, a petition for the probate of his will was wile. Opposition was
registered by Florentinos brother, nephews and nieces.
After a hearing, where the oppositors did not present any evidence, the Judge
admitted the will to probate.
The testators legal heirs did not appeal from the decree of probate and from
the order of partition and distribution.
Later, the legal heirs filed a case for recovery of 61 parcels of land against Pedro
alleging that they had been in continuous possession of those lands and praying
that they be declared owners thereof.
Pedro moved for a dismissal which was later granted by the Judge on the
ground of res judicata.
The legal heirs did not appeal from the order of dismissal.
15 years after the dismissal of the first civil case and 28 years after the probate of
the will, the legal heirs filed a case for annulment of the will alleging fraud and
deceit.
The court dismissed said action. However, the court set aside the dismissal after
the heirs filed a motion for reconsideration. Hence, this appeal.

ISSUE:
Whether the legal heirs have a cause of action for the annulment of the will of
Florentino and for the recovery of the 61 parcels of land adjudicated under that
will to the petitioners.

HELD:
NO. The SC held that the lower court committed a grave abuse of discretion in
setting aside its order of dismissal and ignoring the testamentary case and the
first civil case which is the same as the instant case. It is evident that second civil
case is barred by res judicata and by prescription.
The decree of probate is conclusive as to the due execution or formal validity of
the will. That means that the testator was of sound and disposing mind at the
time he executed the will and was not acting under duress, menace, fraud, or
undue influence; that the will was signed by him in the presence of the required
number of witnesses, and that the will is genuine.
Accordingly, these facts cannot again be questioned in a subsequent
proceeding, not even in a criminal action for the forgery of the will.
After the finality of the allowance of a will, the issue as to the voluntariness of its
execution cannot be raised anymore.
The SC also held that the decree of adjudication, having rendered in a
proceeding in rem, is binding upon the whole world. Moreover, the dismissal of
the first civil case, which is a judgment in personam, was an adjudication on the
merits. Thus. It constitutes a bar by former judgment under the Rules of Court.
The SC also held that the lower court erred in saying that the action for the
recovery of the lands had not prescribed. The SC ruled that the Art. 1410 of NCC
(the action or defense for the declaration of the inexistence of a contract does
not prescribe) cannot apply to last wills and testaments.
The Rules of Court does not sanction an action for annulment of a will.
A final decree of probate is conclusive as to the due execution of the will.
A decree of adjudication in a testate proceeding is binding on the whole
world.After the period for seeking relief from a final order or judgment under Rule
38 of the Rules of court has expired, a final judgment or order can be set aside
only on the grounds of: (a) lack of jurisdiction or lack of due process of law or (b)
that the judgment was obtained by means of extrinsic or collateral fraud. In the
latter case, the period for annulling the judgment is four (4) years from the
discovery of fraud.
The Civil Law rule that an action for declaration of inexistence of a contract
does not prescribe cannot be applied to last wills and testaments.

Dela Cerna v. Potot
12 SCRA 576

FACTS:
Spouses Bernabe de la Serna and Gervasia Rebaca, executed a joint last will ad
testament where they willed that their 2 parcels of land be given to Manuela
Rebaca, their niece and that while each of them are living, he/she will continue
to enjoy the fruits of the lands mentioned.
Bernabe died. Gervasia submitted the will for probated. By order of Oct. 31,
1939, the Court admitted for probate the said will but only for the part of
Bernabe.
When Gervasia died, another petition for probate was instituted by Manuela,
but because she and her attorney failed to appear in court, the petition was
dismissed. When the same was heard, the CFI declared the will void for being
executed contrary to the prohibition on joint wills. On appeal, the order was
reversed.

ISSUE:
W/N the will may be probated.

HELD:
Admittedly the probate of the will in 1939 was erroneous, however, because it
was probated by a court of competent jurisdiction it has conclusive effect and
a final judgment rendered on a petition for the probate of a will is binding upon
the whole world. However, this is only with respect to the estate of the husband
but cannot affect the estate of the wife; considering that a joint will is a
separate will of each testator.
The joint will being prohibited by law, its validity, in so far as the estate of the wife
is concerned, must be reexamine and adjudicated de novo.
The undivided interest of the wife should pass upon her death to her intestate
heirs and not to the testamentary heir. Thus as to the disposition of the wife, the
will cannot be given effect.
A decree of probate decree is conclusive on the due execution and the formal
validity of the will subject to such probate.

Reyes v. CA
281 SCRA 277
FACTS:
This case involves a 383 sq.m. parcel of land owned by pettitioners and
respondents father. Petitioner alleges that a Deed of Exrajudicial Partition
(Deed) was entered into between him and the respondents. Petitioner
managed to register 335 sq.m. of the land under his name; while 50 sq.m. of the
land was registered under the name of his sister, Paula (one of the respondents).
After discovering the registration of the Deed, respondents denied having
knowledge of its execution and disclaimed having signed the same; nor did
they ever waive their rights, shares and interest in the subject parcel of land.
According to respondents, subject Deed was fraudulently prepared by
petitioner and that their signatures thereon were forged. They also assert that
one Atty. Jose Villena, the Notary Public who notarized the said Deed was not
even registered in the list of accredited Notaries Public of Pasay City.
Thereafter, petitioner executed a Deed of Absolute Sale selling 240 square
meters of the land to his children. After the property was partitioned, petitioner,
his children and private respondent Paula allegedly executed a Deed of Co-
owners' Partition dividing the property among themselves. This led the
respondents to file a Complaint for "Annulment of Sale and Damages With
Prayer for Preliminary Injunction/Restraining Order" before the RTC, which ruled
that private respondents' signatures on the questioned Deed of Extrajudicial
Partition and Settlement were indeed forged and simulated. The CA affirmed.
Hence, this petition.

ISSUES:
1. Whether the Deed was forged.
2. Whether petitioner(s) had become absolute owners of the subject
property by virtue of acquisitive prescription.

RULING:
1. YES. Petitioner(s) cast doubt on the findings of the lower court as affirmed
by the Court of Appeals regarding the existence of forgery. Factual
findings of the trial court, adopted and confirmed by the Court of
Appeals, are final and conclusive and may not be reviewed on appeal.
Petitioners' ludicrous claim that private respondents imputed no
deception on his part but only forgery of the subject Deed and the
simulation of their signatures is nothing short of being oxymoronic. For
what is forgery and simulation of signatures if not arrant deception! The
allegation made by petitioner that the execution of a public document
ratified before a notary public cannot be impugned by the mere denial
of the signatory is baseless. It should be noted that there was a finding
that the subject Deed was notarized by one Atty. Villena who at that time
was not commissioned as a notary in Pasay City.

2. NO. Petitioners cannot justify their ownership and possession of the subject
parcel of land since they could not ave been possessors in good faith of
the subject parcel of land considering the finding that at the very
inception they forged the Deed of Extrajudicial Partition and Settlement
which they claim to be the basis for their just title. Having forged the Deed
and simulated the signatures of private respondents, petitioners, in fact,
are in bad faith. The forged Deed containing private respondents'
simulated signatures is a nullity and cannot serve as a just title. There can
be no acquisitive prescription considering that the parcel of land in
dispute is titled property, i.e., titled in the name of the late Bernardino
Reyes, the father of both petitioner Florentino and the private
respondents.

Dorotheo v. CA
320 SCRA 12
FACTS:
Private respondents were the legitimate children of Alejandro Dorotheo and
Aniceta Reyes. The latter died in 1969 without her estate being settled.
Alejandro died thereafter. Sometime in 1977, after Alejandro's death, petitioner,
who claims to have taken care of Alejandro before he died, filed a special
proceeding for the probate of the latter's last will and testament. In 1981, the
court issued an order admitting Alejandro's will to probate. Private respondents
did not appeal from said order. In 1983, they filed a "Motion To Declare The Will
Intrinsically Void." The trial court granted the motion and issued an order.
Petitioner moved for reconsideration arguing that she is entitled to some
compensation since she took care of Alejandro prior to his death although she
admitted that they were not married to each other.
Later on, Judge Zain B. Angas set aside the final and executory Order, as well as
the Order directing the issuance of the writ of execution, on the ground that the
order was merely "interlocutory", hence not final in character.

ISSUE:
May a last will and testament admitted to probate but declared intrinsically void
in an order that has become final and executory still be given effect?

HELD:
No. A final and executory decision or order can no longer be disturbed or
reopened no matter how erroneous it may be. In setting aside the Order that
has attained finality, the trial court in effect nullified the entry of judgment made
by the Court of Appeals. It is well settled that a lower court cannot reverse or set
aside decisions or orders of a superior court, for to do so would be to negate the
hierarchy of courts and nullify the essence of review. It has been ruled that a
final judgment on probated will, albeit erroneous, is binding on the whole world.


Austria v. Reyes
31 SCRA 754
FACTS:
Basilia Austria vda. de Cruz filed with the CFI of Rizal a petition for probate, ante
mortem, of her last will and testament. The probate was opposed by the present
petitioners, who are nephews and nieces of Basilia. The will was subsequently
allowed with the bulk of her estate designated for respondents, all of whom
were Basilias legally adopted children. The petitioners, claiming to be the
nearest of kin of Basilia, assert that the respondents had not in fact been
adopted by the decedent in accordance with law, thereby making them mere
strangers to the decedent and without any right to succeed as heirs. Petitioners
argue that this circumstance should have left the whole estate of Basilia open to
intestacy with petitioners being the compulsory heirs.
It is alleged by petitioners that the language used imply that Basilia was
deceived into believing that she was legally bound to bequeath one-half of her
entire estate to the respondents as the latter's legitime, with the inference that
respondents would not have instituted the respondents as heirs had the fact of
spurious adoption been known to her. The petitioners inferred that from the use
of the terms, "sapilitang tagapagmana" (compulsory heirs) and "sapilitang
mana" (legitime), the impelling reason or cause for the institution of the
respondents was the testatrix's belief that under the law she could not do
otherwise. Thus Article 850 of the Civil Code applies whereby, the statement of
a false cause for the institution of an heir shall be considered as not written,
unless it appears from the will that the testator would not have made such
institution if he had known the falsity of such cause.

ISSUE:
W/N the lower court committed grave abuse of discretion in barring the
petitioners nephews and niece from registering their claim even to properties
adjudicated by the decedent in her will.

HELD:
No. Before the institution of heirs may be annulled under article 850 of the Civil
Code, the following requisites must concur: First, the cause for the institution of
heirs must be stated in the will; second, the cause must be shown to be false;
and third, it must appear from the face of the will that the testator would not
have made such institution if he had known the falsity of the cause. The
decedent's will does not state in a specific or unequivocal manner the cause for
such institution of heirs. Absent such we look at other considerations. The
decedents disposition of the free portion of her estate, which largely favored
the respondents, compared with the relatively small devise of land which the
decedent left for her blood relatives, shows a perceptible inclination on her part
to give the respondents more than what she thought the law enjoined her to
give to them. Excluding the respondents from the inheritance, considering that
petitioner nephews and nieces would succeed to the bulk of the testate by
virtue of intestacy, would subvert the clear wishes of the decedent.
Testacy is favored and doubts are resolved on its side, especially where the will
evinces an intention on the part of the testator to dispose of practically his
whole estate, as was done in this case. Intestacy should be avoided and the
wishes of the testator should be allowed to prevail. Granted that a probate
court has found, by final judgment, that the decedent possessed testamentary
capacity and her last will was executed free from falsification, fraud, trickery or
undue influence, it follows that giving full expression to her will must be in order.


Aznar v. Duncan
17 SCRA 590
FACTS:
Christensen died testate. The will was admitted to probate. The court declared
that Helen Garcia was a natural child of the deceased. The Court of First
Instance equally divided the properties of the estate of Christensen between
Lucy Duncan (whom testator expressly recognized in his will as his daughter) and
Helen Garcia. In the order, the CFI held that Helen Garcia was preterited in the
will thus, the institution of Lucy Duncan as heir was annulled and the properties
passed to both of them as if the deceased died intestate.

ISSUE:
Whether the estate, after deducting the legacies, should be equally divided or
whether the inheritance of Lucy as instituted heir should be merely reduced to
the extent necessary to cover the legitime of Helen Garcia, equivalent to of
the entire estate.

HELD:
The inheritance of Lucy should be merely reduced to cover the legitime of Helen
Garcia.
Christensen refused to acknowledge Helen Garcia as his natural daughter and
limited her share to a legacy of P3,600.00. When a testator leaves to a forced
heir a legacy worth less than the legitime, but without referring to the legatee as
an heir or even as a relative, and willed the rest of the estate to other persons,
the heir could not ask that the institution of the heirs be annulled entirely, but
only that the legitime be completed.
EMILIANA MOLO-PECKSON and PILAR PEREZ-NABLE, Petitioners-Appellees, vs.
ENRIQUE TANCHUCO, FAUSTINO GOMEZ, ET AL., Oppositors-Appellants.

FACTS: In 1950, Juana Juan Vda. De Molo died, leaving no forced heirs, but
only collateral children and the grandchildren of her sisters. She executed a last
will and testament bequeathing all her properties to her two foster children, the
petitioners herein. Thereafter, the said will was submitted for probate, but was
opposed by herein oppositors on the ground among others, that it was not
attested and executed in accordance with law. The trial court admitted the will
for probate. Oppositors appealed. They contend that under Section 618 of Act
190, the Old Code of Civil Procedure, which requires that a will should be
attested or subscribed by three or more credible witnesses, two of the attesting
witnesses to the will in question, namely, Miss Navarro and Miss Canicosa, who
were employed as pharmacist and salesgirl, respectively, in the drugstore of Pilar
Perez-Nable, one of beneficiaries in the will, may not be considered credible
witnesses for the reason that as such employees, they would naturally testify in
favor of their employer.

ISSUE: WHETHER OR NOT THE RELATION OF AN EMPLOYER AND EMPLOYEE,
DISQUALIFIES ONE TO BE A WITNESS IN A WILL?

HELD: NO.
Section 620 of the same Code of Civil Procedure provides that any person of
sound mind, and of the age of eighteen years or more, and not blind, deaf, or
dumb and able to read and write, may be a witness to the execution of a will.
This same provision is reproduced in our New Civil Code of 1950, under Art. 820.
The relation of employer and employee, or being a relative to the beneficiary in
a will, does not disqualify one to be a witness to a will. The main qualification of
a witness in the attestation of wills, if other qualifications as to age, mental
capacity and literacy are present, is that said witness must be credible, that is to
say, his testimony may be entitled to credence.
In the matter of the will of Jennie Rider Babcock.
BEATRICE BABCOCK TEMPLETON, petitioner-appellee,
vs.
WILLIAM RIDER BABCOCK, opponent-appellant.
FACTS: In 1926, Beatrice Babcock Templeton filed a petition to secure the
probate of a paper writing purporting to express the wishes of Jennie Rider
Babcock, deceased, with reference to the post mortem disposition of all her
property. The instrument is admittedly of a testamentary character, but it is not
executed as a will under the provisions of law generally governing the execution
of the wills made in the Philippines. It is therefore offered for probate under Sec
636 of our Code of Civil Procedure which authorizes probate by our courts of a
will made within the Philippine Islands by a citizen or subject of another state or
country, when such will is executed in accordance with the law of the state or
country of which the testator is a citizen of subject, and which might be proved
under the law of such state or country. It is alleged in the petition that the
testatrix was at the time of her death a resident of the State of California, though
temporarily residing in Manila at the time of her death; and the parties have
agreed that the paper could be proved in the State of California as the
holographic will of the deceased. William Rider Babcock, the brother of the
proponent, resist the probate of the will on the ground that the testatrix had
never acquired a legal domicile in the State of California, or that, if she had,
such domicile had been lost.
ISSUE: WHETHER THE TESTATRIX, AT THE TIME WILL WAS MADE, HAD THE STATUS OF
A CITIZEN OF THE STATE OF CALIFORNIA, AS REQUIRED BY SECTION 636 OF OUR
CODE OF CIVIL PROCEDURE.

HELD:
YES. The finding of the trial court to the effect that the deceased had acquired
a domicile in the State of California is in our opinion based upon facts which
sufficiently support said finding. In particular, we are of the opinion that the trial
court committed no error in attaching importance to the circumstance that the
deceased had voted in California elections. Though not of course conclusive of
acquisition of domicile, voting in a place is an important circumstance and,
where the evidence is scanty, may have decisive weight. The exercise of the
franchise is one of the highest prerogatives of citizenship, and in no other act of
his life does the citizen identify his interests with the state in which he lives more
than in the act of voting.
G.R. No. L-20234 December 23, 1964
PAULA DE LA CERNA, ET AL., petitioners,
vs.
MANUELA REBACA POTOT, ET AL., and THE HONORABLE COURT OF APPEALS,
respondents.

FACTS:
The spouses Bernabe Dela Serna and Gerasisa Rebabca executed a joint
will where they gave two (2) parcels of land to Manuela Rebaca, a niece, as
they didn't have their own child. When Bernabe died, the said will was probated
in 1939. Another petition for probate of the same will insofar as Gervasia was
concerned was filed in 1952 but due to the failure of the petitioner (Manuela) to
appear, the same was dismissed in 1954. The CFI held the petition (Bernabe
probate) to be null and void as it is contrary to law for it is in violation of Art. 669
of the Code of Civil Procedure. While the Court of Appeals reversed and held
that the decree of probate in 1939 was issued by a court of probate jurisdiction
and conclusive as to the due execution of the will. Hence this appeal.

ISSUE: WHETHER OR NOT THE WILL IS CONSIDERED VALID?
HELD:

YES. The Supreme Court affirmed the CA decision and held that once a decree
of probate becomes final in accordance with the rules of procedure, it is res
judicata. The final decree of probate entered in 1939 in the CFI of Cebu is
conclusive as to the last will of Bernabe despite the fact that even then the Civil
Code already decreed the invalidity of joint wills. (There was an error on the
court but the decree has now become final.) The probate court committed an
error of law which should have been corrected on appeals but which did not
affect the jurisdiction of the probate court, nor the conclusive effect of its final
decision. . A final judgment rendered on a petition for the probate of a will is
binding upon the whole world and public policy and sound practice demand
that at the risk of occasional errors judgment of courts should become final at
some definite date fixed by law. imposed
BELLIS v. BELLIS
GR No.L-23678, June 6, 1967
20 SCRA 358

FACTS: Amos G. Bellis, a native of Texas and US national, executed a will in the
Philippines that specifies legacies for his first wife and three illegitimate children,
and the residue estate be divided among his legitimate children. When he died,
the executor administered the will but his illegitimate children opposed the
partition claiming that aside from the legacies, they should still have a share
from the legitime as complusory heirs of the decedent. Texas law, however,
does not provide for the legitime.

ISSUE: Are the decedent's illegitimate children entitled to such portion of the
legitime? What law shall govern the decendent's will?

HELD: No. The parties admit that the decedent was a citizen of the State of
Texas, U.S.A., and that under the laws of Texas, there are no forced heirs or
legitimes. Accordingly, since the intrinsic validity of the provision of the will and
the amount of successional rights are to be determined under Texas law, the
Philippine law on legitimes cannot be applied to the testacy of Amos G. Bellis.
Hence, the illegitimate children of the decedent has no claim to the inheritance
aside from those expressly provided legacies.
Garcia v. Lacuesta
G.R. L-4067 November 29, 1951
Ponente: Paras, C.J.

Facts:
1. The CA disallowed the probate of the will of Antero Mercado dated Jan 1943.
The said will was written in Ilocano dialect.

2. The will appears to have been signed by Atty. Florentino Javier who wrote the
name of the testator followed below by 'A ruego del testador' and the name of
Florentino Javier. In effect, it was signed by another although under the express
direction of the testator. This fact however was not recited in the attestation
clause. Mercado also affixed a cross on the will.

3. The lower court admitted the will to probate but this order was reversed by
the Court of Appeals on the ground that the attestation failed to recite the facts
surrounding the signing of the testator and the witnesses.

Issue: Whether or not the attestation clause in the will is valid

HELD: NO the attestation is fatally defective for its failure to state that Antero or
the testator caused Atty. Javier to write the former's name under his express
direction as required by Sec. 618 of the Civil Procedure. Finally, on the cross
affixed on the will by the testator, the Court held that it is not prepared to liken
the mere sign of a cross to a thumbmark for obvious reasons- the cross does not
have the trustworthiness of a thumbmark so it is not considered as a valid
signature.
MOLO VS. MOLO
90 Phil 37
FACTS: Mariano Molo died on January 24, 1941 without leaving any forced heir
either in the descending or ascending line. His wife Juana Molo (petitioner)
survived him, and by his nieces and nephew Luz, Gliceria and Cornelio, all
surnamed Molo (oppositors-appellants).
80 percent of my life was spent in my room.
Oppositors appellants were the legitimate children of a deceased
brother of the testator. Mariano left two wills, one executed on August 17, 1918
and another executed on June 20, 1939, in both the 1918 and 1939 wills Juana
was instituted as his universal heir. The latter will contains a clause, which
expressly revokes the will executed in 1918. Juana Molo filed in the CFI a petition
seeking the probate of the will executed in 1939. The court rendered a decision
denying the probate of said will on the ground that the petitioner failed to prove
that the same was executed in accordance with law.
In view of the disallowance of the will, the widow filed another petition for
the probate of the will executed by the deceased on August 18, 1918. The
oppositors filed an opposition to the petition contending that, notwithstanding
the disallowance of the 1939 will, the revocatory clause is valid and still has the
effect of nullifying the prior will of 1918. Likewise, regardless of the revocatory
clause, said will of 1918 cannot still be given effect because of the presumption
that the testator himself deliberately revoked it. The will of 1918 was admitted to
probate. Hence this appeal.

ISSUE: Was the admittance into probate proper?

What is the doctrine of dependent relative revocation?

HELD: A subsequent will containing a clause revoking a previous will, having
been disallowed, for the reason that it was not executed in conformity with the
provisions of law as to the making of wills, cannot produce the effect of
annulling the previous will, inasmuch as said revocatory clause is void.

The doctrine of dependent relative revocation is usually applied where the
testator cancels or destroys a will or executed an instrument intended to revoke
a will with a present intention to make a new testamentary disposition as a
substitute for the old, and the new disposition is not made or, if made, fails to
effect for same reason.

The failure of the new testamentary disposition, upon whose validity the
revocation depends, is equivalent to the non-fulfillment of a suspensive
condition, and hence prevents the revocation of the original will. But a mere
intent to make at some time a will in place of that destroyed will not render the
destruction conditional. It must appear that the revocation is dependent upon
the valid execution of a new will.

Even in the supposition that the destruction of the original will by the testator
could be presumed from the failure of the petitioner to produce it in court, such
destruction cannot have the effect of defeating the prior will of 1918 because of
the fact that it is founded on the mistaken belief that the will of 1939 has been
validly executed and would be given due effect.

The theory on which the principle of dependent relative revocation is
predicated in that the testator did not intend to die intestate. And this intention
is clearly manifest when he executed two wills on different occasions and
instituted his wife as his universal heir. There can therefore be no mistake as to his
intention of dying testate.

Nuguid vs Nuguid, 17 SCRA 449
Facts: Rosario died without descendants, legitimate or illegitimate. Surviving her
were her legitimate parents Felix and Paz, and 6 brothers and sisters.
Remedios, one of the sister filed in court a holographic will allegedly executed
by Rosario instituting the former as the sole, universal heir of all her properties.
She prayed that said will be admitted to probate and that letter of
administration be issued to her.
Felix and Paz opposed to the probate of the will on the ground that by the
institution of Remedios as universal heir of the deceased, oppositors who are
compulsory heirs in the direct ascending line were illegally preterited and that
in consequence, the institution is void.
Article 854 provides that preterition of one, some or all of the compulsory heirs in
the direct line, whether living at the time of the execution of the will or born after
the death of the testator, shall annul the institution of heir.
Petitioners contention is that the present is a case of ineffective disinheritance
rather than one of preterition drawing the conclusion that Article 854 does not
apply in the case at bar.
Issue: WON the institution of one of the sister of the deceased as the sole,
universal heir preterited the compulsory heirs.
Held: Yes. Where the deceased left no descendants, legitimate or illegitimate,
but she left forced heirs in the direct ascending line her parents, and her
holographic will does not explicitly disinherit them but simply omits their names
altogether, the case is one of preterition of the parents, not a case of ineffective
disinheritance.
Preterition consists in the omission in the testators will of the forced heirs or
anyone of them, either because they are not mentioned therein, or, through
mentioned, they are neither instituted as heirs nor are expressly disinherited.
Disinheritance, in turn, is a testamentary disposition depriving any compulsory
heir of his share in the legitime for a cause authorized by law.
Where the one sentence will institutes the petitioner as the sole, universal heir
and preterits the parents of the testatrix, and it contains no specific legacies or
bequests, such universal institution of petitioner, by itself, is void. And intestate
succession ensues.
Guevara v. Guevara Dec. 29, 1943
Facts: Victorino Guevara executed a will in 1931 wherein he made various
bequests t his wife, stepchildren, wife in the 2nd marriage. He has a legitimate
son Ernesto and a natural daughter Rosario. Therein, he acknowledged Rosario
as his natural daughter.
In 1933, Victorino died but his last will was never presented for probate nor was
there any settlement proceeding initiated. It appeared that only his son Ernest
possessed the land which he adjudicated to himself. While Rosario who had the
will in her custody, did nothing to invoke the acknowledgment, as well as the
devise given to her.
Subsequently, Rosario filed an action for the recovery of her legitime from
Ernesto, a portion of a large parcel of land invoking the acknowledgment
contained in the will and based on the assumption that the decedent died
intestate because his will was not probated. She alleged that the disposition in
favor of Ernesto should be disregarded. The lower court and the Court of
Appeals sustained Rosario's theory.
Issue: Whether or not the probate of a will can be dispensed with
RULING: No. Rosario's contention violates procedural law and considered an
attempt to circumvent the last will and testament of the decedent. The
presentation of a will to the court for probate is mandatory and its allowance is
essential and indispensable to its efficacy.
Suppression of the wil is contrary to law and public policy for without probate,
the right of a person to dispose of his property by will may be rendered
nugatory.
Dela Cerna v. Potot Dec. 23 1943
Facts: The spouses Bernabe Dela Serna and Gerasisa Rebabca executed a joint
will where they gave two (2) parcels of land to manuela Rebaca, a niece, as
they didn't have their own child. When Bernabe died, the said will was probated
in 1939.
Another petition for probate of the same will insofar as Gervasia was concerned
was filed in 1952 but due to the failure of the petitioner (Manuela) to appears,
the same was dismissed in 1954.
The CFI held the petition (Bernabe probate) to be null and void as it is contrary
to law. While the Court of Appeals reversed and held that the decree of
probate in 1939 was issued by a court of probate jurisdiction and conclusive as
to the due execution of the will. Hence this appeal.
Issue: Whether or not the will is valid
RULING: The Supreme Court affirmed the CA decision and held that Once a
decree of probate becomes final in accordance with the rules of procedure, it
is res judicata. THe final decree of probate entered in 1939 in the CFI of Cebu is
conclusive as to the last will of Bernabe despite the fact that even then the Civil
Code already decreed the invalidity of joint wills. (There was an error on the
court but the decree has now become final.)
The probate court committed an error of law which should have been
corrected on appeals but which did not affect the jurisdiction of the probate
court, nor the conclusive effect of its final decision. A decision which is binding
upon the whole world.
Nevertheless, the probate in 1939 only affected the share of Bernabe and could
not include the disposition of the share of his wife which was still alive then, her
properties were still not within the jurisdiction of the court. Hence, the validity of
the will with respect to her, must be on her death, be re-examined and
adjudicated de novo -- since a joint will is considered a separate will of each
testator.
Gallanosa v. Arcangel June 21, 1978
Facts: Florentino Gallanosa executed a will in 1938 when he was 80 years old.
He owned 61 parcels of and at that time. He died in 1939 childless and survived
by his brother Leon. In his will, he bequethed his 1/2 share of the conjugal estate
to his second wife Tecla and if she predecease him (as what occurred), the said
share shall be assigned to the spouses Gallanosa (Pedro & Corazon). Pedro is
Tecla's son by her 1st marriage. He also gave 3 parcels of land to Adolfo, his
protege.
The said will was admitted to probate with Gallanosa as executor. In 1952, thjhe
legal heirs filed an action for the recovery of said 61 parcels of land. The action
was dismissed on the ground of res judicata. Then, 28 years after probate,
another acton agaisnt Gallanosa for annulment of the will, recovery of the lands
alleging fraud and deceit, was filed. As a result, the lower court set aide the
1939 decree of probate.
Issue: Whether or not a will which has been probated may still be annulled
RULING: No. A final decree of probate is conclusive as to the due execution of
the will. Due execution means that the testator was of sound and disposing mind
at the time of the execution and that he was not acting under duress, menace,
fraud or undue influence. Finally, that it was executed in accordance with the
formalities provided by law.
The period for seeking relief under Rule 38 has already expired, hence the
judgment may only be set aside on the grounds of, 1) lack of jurisdiction or lack
of due process of law, and 2) the judgment was obtained by means of extrinsic
collateral fraud (which must be filed within 4 years from the discovery). Finally,
Art. 1410 cannot apply to wills and testament.
NERI v AKUTIN 74 PHIL 185
FACTS : Testator Neri indicated in his will that he was leaving all of his properties
by universal title to his children by his secondmarriage with preterition of his
children by his first marriage. Eleuterio, Agripino, Agapita, Getulia, Rosario
and Celerina are all Neris children by his first marriage.
The trial court annulled the institution of the heirs and declared total intestacy.
The children by the second marriage filed a motion for reconsideration on the
grounds that:1) there is no preterition as to the children of the first marriage have
received their shares in the property left by thetestator 2)assuming that there has
been a preterition, the effect would not be the annulment of the institution of
heirs but simplythe reduction of the bequest made to them.-
The children by the second marriage anchor their argument on the concept of
heir whose A814 definition is deemed repealed by that of the Code of Civil
Procedure. It is maintained that the word "heredero" under the Civil Code, is
notsynonymous with the term "heir" under the Code of Civil Procedure, and that
the "heir" under the latter Code is nolonger personally liable for the debts of the
deceased as was the "heredero" under the Civil Code
ISSUES: WON there is preterition
WON there should be annulment of the institution of the heirs and open the
estate to total intestacy
HELD
1. YES, there is preterition- According to the courts findings, none of the children
by the first marriage received their respective shares from the testators
property - Even if clause 8 of the will is invoked (said clause states that the
children by his first marriage had already received their shares in his property
excluding what he had given them as aid during their financial troubles and the
money they had borrowed from him) the Court can rely only on the findings of
the trial court that the inventory indicates that the property of Neri has remained
intact and that no portion has been given to the children of the first marriage.-
Neri left his property by universal title to the children by his second marriage and
did not expressly disinherit his children by his first marriage but did not leave
anything to them. This fits the case of preterition according to A814, CC which
provides that the institution of heirs shall be annulled and intestate succession
should be declared open.
2. YES- The word "heir" as used in A814 of the Civil Code may not have the
meaning that it has under the Code of CivilProcedure, but this does prevent
a bequest from being made by universal title as is in substance the subject-
matter of A814 of the Civil Code.- It may also be true that heirs under the Code
of Civil Procedure may receive the bequest only after payment of debts left by
the deceased and not before as under the Civil Code, but this may have a
bearing only upon the question as to when succession becomes effective and
can in no way destroy the fact that succession may still be by universal
or special title.- Since a bequest may still be made by universal title and with
preterition of forced heirs, its nullity as provided in article814 still applies there
being nothing inconsistent with it in the Code of Civil Procedure. The basis for its
nullity is the nature and effect of the bequest and not its possible name under
the Code of Civil Procedure.
- In addition, Secs. 755 and 756 of the Code of Civil Procedure affected A814
and A851 of the Civil Code. But these sections have been expressly repealed by
Act No. 2141, thus restoring force to A814 and A851.