SECOND DIVISION

[G.R. No. 26317. January 29, 1927.]

Estate of Miguel Mamuyac, deceased. FRANCISCO GAGO, petitioner-appellant, vs. CORNELIO MAMUYAC,
AMBROSIO LARIOSA, FELICIANA BAUZON, and CATALINA MAMUYAC, opponents-appellees.
Nicanor Tavora for appellant.
Jose Rivera for appellees.
SYLLABUS
WILLS, CANCELLATION OF; PRESUMPTION. The law does not require any evidence of the revocation or
cancellation of the will to be preserved. It therefore becomes difficult at times to prove the cancellation or
revocation of wills. The fact that such cancellation or revocation has taken place must either remain unproved or
be inferred from evidence showing that after due search the original will cannot be found. Where a will which
cannot be found is shown to have been in the possession of the testator, when last seen, the presumption is in the
absence of other competent evidence, that the same was cancelled or destroyed. The same presumption arises
where it is shown that the testator had ready access to the will and it cannot be found after his death. It will not be
presumed that such will has been destroyed by any other person without the knowledge or authority of the
testator.
DECISION
JOHNSON, J p:
The purpose of this action was to obtain the probation of a last will and testament of Miguel Mamuyac, who died
on the 2d day of January, 1922, in the municipality of Agoo of the Province of La Union. It appears from the record
that on or about the 27th day of July, 1918, the said Miguel Mamuyac executed a last will and testament (Exhibit
A). In the month of January, 1922, the said Francisco Gago presented a petition in the Court of First Instance of the
Province of La Union for the probation of that will. The probation of the same was opposed by Cornelio Mamuyac,
Ambrosio Lariosa, Feliciana Bauzon, and Catalina Mamuyac (civil cause No. 1144, Province of La Union). After
hearing all of the parties the petition for the probation of said will was denied by the Honorable C. M. Villareal on
the 2d day of November, 1923, upon the ground that the deceased had on the 16th day of April, 1919, executed a
new will and testament.
On the 21st day of February, 1925, the present action was commenced. Its purpose was to secure the probation of
the said will of the 16th day of April, 1919 (Exhibit 1). To said petition Cornelio Mamuyac, Ambrosio Lariosa,
Feliciana Bauzon, and Catalina Mamuyac presented their oppositions, alleging (a) that the said will is a copy of the
second will and testament executed by the said Miguel Mamuyac; (b) that the same had been cancelled and
revoked during the lifetime of Miguel Mamuyac and (c) that the said will was not the last will and testament of the
deceased Miguel Mamuyac.
Upon the issue thus presented, the Honorable Anastasio R. Teodoro, judge, after hearing the respective parties,
denied the probation of said will of April 16, 1919, upon the ground that the same had been cancelled and revoked
in the year 1920. Judge Teodoro, after examining the evidence adduced, found that the following facts had been
satisfactorily proved:

"That Exhibit A is a mere carbon copy of its original which remained in the possession of the deceased testator
Miguel Mamuyac, who revoked it before his death as per testimony of witnesses Jose Fenoy, who typed the will of
the testator on April 16, 1919, and Carlos Bejar, who saw on December 30, 1920, the original of Exhibit A (will of
1919) actually cancelled by the testator Miguel Mamuyac, who assured Carlos Bejar that inasmuch as he had sold
him a house and the land where the house was built, he had to cancel it the will of 1919), executing thereby a new
testament. Narcisa Gago in a way corroborates the testimony of Jose Fenoy, admitting that the will executed by
the deceased (Miguel Mamuyac) in 1919 was found in the possession of father Miguel Mamuyac. The opponents
have successfully established the fact that father Miguel Mamuyac had executed in 1920 another will. The same
Narcisa Gago, the sister of the deceased, who was living in the house with him, when cross-examined by attorney
for the opponents, testified that the original of Exhibit A could not be found. For the foregoing consideration and
for the reason that the original of Exhibit A has been cancelled by the deceased father Miguel Mamuyac, the court
disallows the probate of Exhibit A for the applicant." From that order the petitioner appealed.
The appellant contends that the lower court committed an error in not finding from the evidence that the will in
question had been executed with all the formalities required by the law; that the same had been revoked and
cancelled in 1920 before his death; that the said will was a mere carbon copy and that the oppositors were not
estopped from alleging that fact.
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 the 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 or be inferred from evidence showing that after due search the original will cannot be
found. Where a will which cannot be found is shown to have been in the possession of the testator, when last
seen, the presumption is, in the absence of other competent evidence, that the same was cancelled or destroyed.
The same presumption arises where it is shown that the testator had ready access to the will and it cannot be
found after his death. It will not be presumed that such will has been destroyed by any other person without the
knowledge or authority of the testator. The force of the presumption of cancellation or revocation by the testator,
while varying greatly, being weak or strong according to the circumstances, is never conclusive, but may be
overcome by proof that the will was not destroyed by the testator with intent to revoke it.
In 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 proof is upon the proponent clearly to establish not only its execution but its existence. Having
proved its execution by the proponents, the burden is on the contestant to show that it has been revoked. In a
great majority of instances in which wills are destroyed for the purpose of revoking them there is no witness to the
act of cancellation or destruction and all evidence of its cancellation perishes with the testator. Copies of wills
should be admitted by the courts with great caution. When it is proven, however, by proper testimony that a will
was executed in duplicate and each copy was executed with all the formalities and requirements of the law, the
duplicate may be admitted in evidence when it is made to appear that the original has been lost and was not
cancelled or destroyed by the testator. (Borromeo vs. Casquijo, G.R. No. 26063.) 1
After a careful examination of the entire record, we are fully persuaded that the will presented for probate had
been cancelled by the testator in 1920. Therefore the judgment appealed from is hereby affirmed. And without
any finding as to costs, it is so ordered.

Street, Malcolm, Villamor, Ostrand, Romualdez and Villa-Real, JJ., concur.

Footnotes
1.

Promulgated December 14, 1926, not reported.

C o p y r i g h t 1 9 9 4 - 1 9 9 9 C D T e c h n o l o g i e s A s i a, I n c.

G.R. No. 26218 January 29, 1927

Arevalo v. Dimayuga
049 Phil 894
SECOND DIVISION
[G.R. No. 26218. January 29, 1927.]
RAMON A. AREVALO, as administrator of the estate of Catalino Arevalo, deceased, plaintiff-appellee, vs. J. F.
DIMAYUGA, defendant-appellant.
Sebastian C. Pamatmat for appellant.
Santos & Benitez for appellee.
SYLLABUS
1.
EVIDENCE. The rule of evidence is well established, that the protest or objection against the admission
of evidence should be presented at the time the evidence is offered, and that the proper time to make protest or
objection to the admissibility of evidence is when the question is presented to the witness or at the time the
answer thereto is given. It is also a well established rule of evidence, that the court may, in its discretion, strike out
incompetent evidence although such evidence was given without objection and although the motion to strike out
is not made until the evidence is already in.
2.
ID.; RIGHT OF COURT ON ITS OWN MOTION TO STRIKE OUT. The court may, upon its own motion,
strike out evidence improperly admitted at any time during the day of the trial or at anytime before the close of
the trial. It has also been held, that the court, upon its own motion, even during the closing argument of the
counsel, may strike out evidence improperly admitted. Parties to the action are not precluded from asking the
court to discard irrelevant or inadmissible evidence, even though it had been previously admitted without
objection.
3.
ID.; CONVERSATIONS WITH DECEASED PERSONS. A party to an action against an executor or
administrator of a deceased person, upon a claim against the estate of the latter, is absolutely prohibited by law
from giving testimony concerning such claim or demand, as to anything that occurred before the death of the
person against whose estate the action is presented. Death has closed the lips of one party and the law has closed
the lips of the other.

4.
USURY; WHEN MAY BE INTERPOSED AS A DEFENSE. Without deciding the question whether or not
there existed usury under the facts in the present case, or whether or not usury can exist in any case like the
present, it is sufficient to say in the present case that no recovery for usury can be had in any case unless the
action for that purpose "is brought within two years after such payment or delivery" is made. In the present case
no claim was made for the recovery of any of the alleged usurious amounts for a period of more than three years.
Query: May the defense of usury ever be based upon the amount of rent paid by the vendor to the vendee under a
pacto de retro, during the continuance of said contract of sale?
DECISION
JOHNSON, J p:
This action was commenced in the Court of First Instance of the City of Manila on the 24th day of April, 1925. Its
purpose was to recover the possession of a certain piece of property located at 622 Calle Regidor in the City of
Manila, together with the rent thereon for the years 1922, 1923, 1924, and up to and including the month of April,
1925, in a sum amounting to P8,066.66.
The defendant interposed a general and special defense. In his special defense he alleged that the property in
question was his sole and separate property; that he had given said property to the deceased Catalino Arevalo as a
guaranty for the payment of a loan of P20,000 on the 12th day of October, 1920; that the document executed,
evidencing said loan, while in form was a pacto de retro, was in fact a mere loan and that the promise to pay rent
in said contract was a mere promise to pay interest on said loan at 12 per cent per annum; that at the time of the
execution and delivery of said document the deceased Catalino Arevalo collected from the defendant the sum of
P150 as a supposed commission; that the contract of January 27, 1922, referred to in paragraph 5 of the complaint
was also fictitious and that he had signed the same by virtue of a verbal agreement to extend the time for the
repayment of the P20,000 for two months and the payment by the defendant to the plaintiff of P600 additional
each year, in addition to the rent already agreed upon, making a total rental of the property in question of P3,000
per year for the use and occupation thereof; that he had paid to Catalino Arevalo the sum of P3,311.09; that the
said contracts of the 12th day of October, 1920, and the 27th day of January, 1922, were contrary to the provisions
of Act No. 2655, known as the Usury Law. The defendant prayed for a judgment against the plaintiff for the sum of
P2,000 as attorney's fees in the trial court and an additional sum of P3,000 as attorney's fees in case of an appeal,
as well as for a judgment against the plaintiff for the sum of P3,311.09. He also prayed that he be absolved from all
liability under the complaint and that said contracts be declared null and void. He further prayed that the registrar
of titles to land in the City of Manila be ordered to cancel the registration of the title of said property in the name
of Catalino Arevalo.
Upon the issue thus presented the cause was brought on for trial. After hearing the evidence adduced during the
trial of the cause the Honorable C. A. Imperial, judge, in a very well prepared opinion, in which reference was made
to all of the important facts, rendered a judgment, the dispositive part of which is as follows:
"Fundado en las consideraciones que preceden, el Juzgado dicta sentencia a favor del demandante, en su
capacidad de administrador judicial del intestado del finado D. Catalino Arevalo, declarandole dueno de la finca
urbana cuestionada y con derecho a poseerla, y se ordena al demandado que le restituya dicha finca urbana y que
le pague la cantidad de ocho mil sesenta y seis pesos con sesenta y seis centimos (P8,066.66) que representan los
alquileres correspondientes desde el 1. de enero de 1922 hasta el 30 de abril de 1925, inclusive, mas los alquileres
correspondientes desde el 1. de mayo de 1925 hasta la fecha de la restitucion de la propiedad, a razon de P250 al
mes ademas de los intereses legales sobre todas dichas cantidades a partir desde el 26 de abril de 1925, fecha en
que se presento la demanda, y las costas. Se sobreseen las reconvenciones y contrademandas del demandado.

"Asi se ordena."
From that judgment the defendant appealed and presents several assignments of error.
In his first assignment of error he contends that the lower court committed an error in excluding certain testimony
given by the defendant during the trial of the cause. The testimony in question relates to certain conversations
which the defendant is supposed to have had with Catalino Arevalo during his lifetime. The appellant admits that
the testimony in question was not admissible under the provisions of paragraph 7 of section 383 of the Code of
Procedure in Civil Actions. He argues, however, that inasmuch as there was no objection presented to the
admissibility of said testimony at the time it was presented, the motion which the plaintiff presented thereafter to
have the same excluded was too late. He contends that the lower court committed an error in granting the motion
of the plaintiff to strike said testimony from the record.
The rule of evidence is well established, that the protest or objection against the admission of evidence should be
presented at the time the evidence is offered and that the proper time to make protest or objection to the
admissibility of evidence is when the question is presented to the witness or at the time the answer thereto is
given. It is also a well established rule of evidence that the court may, in its discretion, strike out incompetent
evidence although such evidence was given without objection and although the motion to strike out is not made
until the evidence is already in. (38 Cyc., 1407; Edisto Phosphate Co. vs. Stanford, 112 Ala., 493; In re Lasak, 131 N.
Y., 624.)
The court may also, upon its own motion, strike out evidence improperly admitted at any time during the day of
the trial or at any time before the close of the trial. It has also been held that the court, upon its own motion, even
during the closing argument of the counsel, may strike out evidence improperly admitted. Parties to the action are
not precluded from asking the court to discard irrelevant and inadmissible evidence even though it had been
previously admitted without objection.
It may be added, however, that the testimony of the defendant, while relating to a conversation which he had with
Catalino Arevalo during his lifetime, could have had but little bearing upon the questions presented. But whatever
the testimony was and whatever bearing it might have had upon the questions presented for solution, it should
not have been admitted, and was properly stricken out by the trial court. A party to an action against an executor
or administrator of a deceased person, upon a claim against the estate of the latter, is absolutely prohibited by law
from giving testimony concerning such claim or demand as to anything that occurred before the death of the
person against whose estate the action is presented. Death has closed the lips of one party and the law has closed
the lips of the other. ( Maxilom vs. Tabotabo, 9 Phil., 390, Kiel vs. Estate of P. S. Sabert, 46 Phil., 193; Anderson vs.
Laugen, 122 Wis., 57; Jones on Evidence vol. 4, 628-630.)
We find nothing in the first assignment of error which in any way justifies a modification of the judgment appealed
from.
In his second assignment of error the appellant alleges that the lower court committed an error in dismissing his
counterclaim and in not admitting the same in accordance with the provisions of section 9 of Act No. 2655. In
support of his second assignment of error the appellant claims that inasmuch as the plaintiff had not answered his
counterclaim under oath, the facts alleged therein had been admitted and could not thereafter be denied. Act No.
2655 is an act fixing rates of interest upon loans and declaring the effect of receiving or taking usurious rates and
for other purposes. Section 9 of said Act provides that the person or corporation sued shall file its answer in
writing under oath to the complaint brought or filed against said person or corporation before a competent court
to recover the money or other personal or real property, seeds or agricultural products, charged or received in

violation of the provisions of that Act. The lack (omission) of taking an oath of an answer to a complaint will mean
the admission of the facts contained in the latter.
Without deciding the question whether or not there existed usury, or whether or not usury can exist in cases like
the present, it is sufficient to say in the present case that no recovery for usury can be had in any case unless the
action for that purpose "is brought within two years after such payment or delivery" is made. In the present case
no claim was made for the recovery of any of the alleged usurious amounts for a period of more than three years
after said alleged illegal payments had been made. (Sec., Act No. 2655, as amended by section 4 of Act No. 3291.)
For a clearer understanding of the questions presented in this case we deem it advisable to set out the actual
contractual relations between the parties.
On the 12th day of October, 1920, the defendant J. F. Dimayuga sold to Catalino Arevalo, under a pacto de retro, a
piece of property located at 622 Calle Regidor in the District of Santa Cruz of the City of Manila for the sum of
P20,000, with the right to repurchase the same at the same price within a period of two years counted from the
20th day of October, 1920. The same contract provided that during the period for the repurchase of said property
the said J. F. Dimayuga should pay to Catalino Arevalo for the use and occupation of said property the sum of P200
per month, payable in advance during the first five days of each and every month at the residence of the said
Arevalo. The contract further provided that in case the vendor (J. F. Dimayuga) should fail to pay the said rent for a
period of two consecutive months, that he would thereby lose the right to repurchase said property.
On the 27th day of January, 1922, by mutual agreement between the vendor and the purchaser of said property
the said contract of the 12th day of October, 1920, was amended. By the terms of said original contract it was
stipulated that the time within which the vendor could repurchase said property would expire upon the 12th day
of October, 1922. Said amended contract stipulated that the period for the repurchase of the property in question
should be extended until the 12th day of October, 1924. Said amended contract further stipulated that, in case the
said Catalino Arevalo should need the price fixed in the sale of said property, he could fix the time for the
repurchase of the same by giving to the vendor four months' notice in advance. In the said amended contract it
was stipulated that, except for said amendments, the original contract should remain in full force and effect. The
vendor J. F. Dimayuga having failed to pay the rent for a period of more than two months the title to said property
was consolidated, under the terms of the contract, in the purchaser Catalino Arevalo.
That the contract between Catalino Arevalo and the defendant dated October 12, 1920, was a pacto de retro, is
not only proved by the form of the contract itself but by the admission of the defendant made during the trial of
the present cause. He admitted that the contract was a pacto de retro and that he knew that it was such a
contract. That the defendant knew at the time he signed said contract that it was a pacto de retro and not a loan,
is also proved by witnesses who were present at the time he signed it. The witness Mariano de Leon testified that
the defendant desired that the contract be a pacto de retro and not a loan. There is absolutely no proof in the
record that justifies the claim of the defendant that the contract was a contract for the loan of money and not a
pacto de retro.
The certificate of title under the Torrens system which the defendant held to the property in question (transfer
certificate No. 14331) was turned over to Catalino Arevalo at the time the contract in question was made. Later
said transfer certificate together with the contract in question was presented to the registrar of titles of the City of
Manila after the condition for the repurchase of the property, and a new certificate of title was issued to him
(transfer certificate No. 23794). It results, therefore, from the facts of the record, that the defendant, after he had
executed the contract in question on the 12th day of October, 1920, in which he sold to Catalino Arevalo the
property in question with the right to repurchase, became a mere lessee of the property and his only rights were

(a) To repurchase the same within the period mentioned in said contract, (b) to occupy it as a tenant and (c) his
obligation was to pay rent in accordance with the term of the contract.
What has been said above with reference to the facts relating to the execution of said contract and its terms and
provisions and the resulting obligations therefrom on the part of the defendant, is a sufficient answer to the
contention of the appellant in his third assignment of error relating to his liability upon said contract. The
judgment of the court below, refusing to declare null and void the amended contract of the 27th day of January,
1922, is fully supported not only by said contract but by the oral evidence adduced during the trial of the cause.
With reference to the fourth assignment of error, in which the appellant alleges that the lower court committed an
error in not granting his motion for reconsideration, it may be said that nothing has been found in the record nor
in the allegations of the parties which in any way would have justified the lower court in granting said motion. No
error was committed therefore in denying the same.
After a careful examination of the entire record in relation with the judgment rendered by the lower court and the
assignments of error presented by the appellant, we find no reason nor justification for changing or modifying the
judgment appealed from. The same is therefore hereby affirmed, with costs. So ordered.
Street, Malcolm, Villamor, Ostrand, Romualdez and Villa Real, JJ., concur.