ALEJANDRA IRLANDA, plaintiff-appellant,

vs.
CATALINA PITARGUE, ET AL., defendants-appellants.
TORRES, J.:
Appeals raised through bills of exception by counsel for both parties from judgment in this case by
the Honorable Vicente Jocson, judge.
On June 16, 1909, counsel for Alejandra Irlanda filed a complaint, representing that: (1) The plaintiff
and defendants are all of legal age and residents of Nagcarlang, Laguna; (2) Anselmo Irlanda died
on November 30, 1887, according to the burial certificate marked "A", leaving only two sons, his
immediate heirs, named Felix and Vicente Irlanda; (3) up to the time of his death Anselmo Irlanda
owned four tracts of coconut land, the first planted 23, the second with 84, the third with 371 young
trees and the fourth with 31 mature trees, all bearing fruit, which tracts are situate in the barrio of
Banilad, pueblo of Nagcarlang, their boundaries being set forth in the complaint; (4) upon the death
of the said Anselmo Irlanda his son Vicente took possession of said tracts, because his brother Felix
was then in Camarines engaged in business; (5) on January 4, 1902, said Felix Irlanda died in the
pueblo of Calabanga, Ambos Camarines, according to the burial certificate marked "B," leaving a
daughter, the plaintiff, who was born of his marriage with Roberta Rubin, according to the certificates
marked "C" and "D;" that on or about the month of June of the same year, 1902, Vicente Irlanda also
died in Nagcarlang, leaving a widow, Catalina Pitargue, and daughters Augustina, Isabel, Sergia and
Flaviana Irlanda, who took possession of the four tracts of land before mentioned and since then
have been reaping the crops and profits therefrom; that in spite of the demands made at various
times by the plaintiff that the defendants deliver to her half of the said tracts the defendants have
nevertheless refused to do so, thereby having inflicted upon the plaintiff damages estimated at P600
a year by retaining said lands and enjoying the fruits thereof; whereas according to section 174,
paragraphs 2 and 4, of the Code of Civil Procedure, the most efficacious and adequate means for
the preservation and administration of this property during the litigation is the appointment of the
receiver, because the plaintiff is directly interested in half of all funds derived from the sale of the
products of the said tracts, especially as the defendants have no other property to answer for the
damages they have been inflicting upon the plaintiff and yet have been for a long time using said
tracts and the products thereof. In conclusion judgment was prayed, declaring: (a) That the plaintiff is
the absolute owner by inheritance from her deceased grandfather, Anselmo Irlanda, and her father,
the latter's son, Felix Irlanda, of half of the four tracts of land mentioned in the complaint; (b) that the
defendants be ordered to deliver to the plaintiff said half of the lands in question and to execute the
corresponding instruments of partition; (c) that the defendants be sentenced to pay to the plaintiff the
sum of P600 a year as damages from the month of June, 1902, until execution of judgment in this
case; (d) that a receiver be appointed to take over the administration of the profits in money derived
from the lands in question during the litigation, said appointment to be made in favor of Telesforo
Bueno, under bond of P1,500, the approximate value of said four tracts of land; and further that the
defendants be sentenced to pay the costs in the case.
Counsel for the defendants in amended answer generally and specifically denied the allegations
contained in the foregoing complaint, and in special defense alleged: That Anselmo Irlanda had two
sons, Felix and Vicente Irlanda; that the defendant Catalina Pitargue in her marriage with Vicente
Irlanda had four daughters named Augustina, Isabel, Sergia and Flaviana, who married Justo
Sotomango, one of the defendants, as Flaviana Irlanda is dead; that Felix Irlanda had a daughter,
who is the plaintiff; that the property described in the third paragraph of the complainant belonged

with other real estate to the deceased Anselmo Irlanda, who in his lifetime made a partition of all his
property between his two heirs, Felix and Vicente Irlanda, which partition is now asked by the
plaintiff: that more than a half of all the property of the said Anselmo Irlanda was awarded in the
partition made over forty years ago to Felix Irlanda, father of the plaintiff, and since that time Vicente
Irlanda has possessed with title of owner and to the exclusion of any other right the property
described in the third paragraph of the complaint, by virtue of the assignment his father Anselmo
made to him as the portion pertaining to him in said partition, that Felix Irlanda in like manner took
possession of the property which was assigned him in that partition made by his father and in the
exercise of the title he had to said property conveyed it by absolute sale to Manuel Lucido who in
turn sold it to other persons, the present owner being the Chinaman Kiam; wherefore the plaintiff
Alejandra Irlanda has no longer any right to the property claimed as it is the exclusive property of the
defendants; and in their name it was prayed that they be absolved from the complaint and declared
to be owners of the lands described in the third paragraph of the complaint, with the costs against
the plaintiff.
After trial and submission of evidence, counsel for the plaintiff and defendants agreed to accept as
true the facts alleged in the first five paragraphs of the complaint. Later, counsel for the defendants
asked for annulment of this agreement, but such motion was objected to by counsel for the plaintiff
and was overruled by the court on July 19, 1910. From the evidence the court decided the case on
October 26 of the same year by declaring that the property in question had belonged to Anselmo
Irlanda, who, at his, death left two sons named Felix and Vicente, both now dead; that Felix Irlanda
left as his sole heir Alejandra Irlanda, and Vicente Irlanda the said Augustina or Justina, Isabel, and
Sergia Irlanda and the deceased Flaviana; and that the property in litigation had never been
partitioned among the heirs. It was therefore ordered that the property in litigation be divided into two
equal parts, one for Alejandra Irlanda and the other for the children of Vicente Irlanda. Catalina
Pitargue was sentenced to restore the heirs a sum at the rate of P72 a year, as the value of the
products of said lands up to the time when the same were delivered, counting from July 1, 1902, to
be divided into two parts in the same way as the lands. The defendants were sentenced to pay the
costs in equal proportions. Counsel for the defendants excepted to this judgment and asked for a
new trial, which motion was overruled on November 25, 1910, with exception on the part of said
defendants. Counsel for the plaintiff also excepted to the portion relating to the amount of damages
granted her, and further prayed that such portion of the decision be annulled and a new trial ordered,
which motion was overruled on December 22, with exception on the part of the plaintiff. The
corresponding bills of exception were presented and by agreement of both parties merged into one,
which after approval was forwarded to this court.
The action in this case has for its subject the partition of certain hereditary property, after declaration
of heirship, and the delivery of a half thereof with its products to the complaint as the legitimate
successor of its original owner, now deceased.
In the judgment appealed from the following appears:
From the evidence adduced it is plain that the lands in question belong to Anselmo Irlanda
and passed into the possession of Vicente Irlanda and of his wife and children at his death,
while Felix Irlanda, who died in Camarines, was absent; and that this property has not yet
been partitioned among the heirs;
That in his lifetime Anselmo Irlanda sold some parcels, especially when he was a prisoner,
has no weight, because he had a perfect right to do so, and even though Felix did the same

with one parcel when his father was a prisoner, it is not presumptuous to suppose that he did
so at his father's command, which is evidenced by his silence up to the time of his death.
The final move of the defendants was to present Guillermo Fule, son-in-law of Catalina
Pitargue, as intervener in the ownership of the property in question, an intervener which I
think to have been unfortunately allowed, because the definite answers of the defendants
and the categorical affirmation of Catalina Pitargue itself leave no room for doubt that the
property belonged to Anselmo Irlanda, who had two sons, Vicente and Felix, and that the
plaintiff as the only child of Felix is entitled to a half of the property questions and the
statements which can not in any manner be denied at the mere whim of the defendants
themselves.
It is a fact admitted and agreed upon between the parties that the four tracts or parcels of land
described in the third paragraph of the complaint belonged to Anselmo Irlanda, the predecessor in
interest and the father of the brothers Vicente and Felix, from whose rights in the inheritance which
their common father, Anselmo, left at death, arise those which the plaintiff and the children of Vicente
Irlanda's widow now assert.
The rights to the succession of a person are transmitted from the moment of his death. (Art.
657, Civil Code.)
Succession is granted either by the will of the man as expressed in a will or, in its absence,
by provision of law. (Art. 658, Civil Code.)
Heirs succeed the deceased in all his rights and obligations by the mere fact of his death.
(Art. 661 Civil Code.)
The supreme court of Spain has applied this latter article in a judgment on appeal of November 23,
1903, thus:
As has been repeatedly decided by this supreme court, the heir, as the successor of the
deceased in all his rights and obligations, has a right of action and personality to demand
what pertains to his interest, without the cooperation of his coheirs, whenever it is not to their
prejudice and provided that he conform to the laws regulating common ownership of
property.
In another judgment of December 11, of the said year 1903 it says:
It is an ancient rule of our law, confirmed by article 661 of the Civil Code, that the heirs
succeed by the mere fact of the death of their predecessor in interest.
Many other decisions of that supreme court might be cited with reference to the hereditary
succession and the rights of the heirs of a deceased person.
In the decision in the case of Pascual vs. Angeles (4 Phil. Rep., 604), this court declared that the heir
continues in law the personality of his predecessor in interest, who transmits to him such of his
rights, actions and obligations are not extinguished by his death.

Admitting the legal provisions cited and the precedents established by the courts in the construction
and proper application thereof, it is questionable that the plaintiff is entitled to be recognized as the
legitimate successor of her father, Felix Irlanda, and therefore of her grandfather, Anselmo Irlanda,
by right of representation in the property which the latter left at his death; and that after division into
halves the part which belongs to her should be delivered to her with the products it is yielding and
has yielded. The status of the plaintiff, Alejandra Irlanda, as legitimate daughter of Felix Irlanda and
granddaughter of his father, Anselmo Irlanda, being acknowledge by counsel for the defendants, and
the fact that the property left by the grandfather at his death is still pro indiviso, without either Felix or
the granddaughter having received half of said property, being duly shown by the record, it is neither
lawful nor just that the family of the other son of Anselmo should retain and enjoy such half thereof to
the exclusion and prejudice of the plaintiff.
Under article 807 of the Civil Code, the legitimate children and descendants, with regard to their
legitimate parents and ascendants, are heirs by force of law. The plaintiff as the daughter of Felix
Irlanda is the granddaughter and legitimate descendant in direct line of Anselmo Irlanda, owner of
the said property.
According to article 925, the right of representation shall always take place in the direct descending
line, but never in the ascending; and shall only be recognized in the collateral line in the favor of the
children of brothers or sisters, whether they be of whole or half blood.
The children of the deceased shall always inherit from him in their own right, dividing the
inheritance in equal shares. (Art. 932, Civil Code.)
The grandchildren and other descendants shall inherit by right of representation. (Art. 933,
Civil Code.)
The plaintiff's status as granddaughter of Anselmo Irlanda since she is the daughter of his son, Felix
Irlanda, being admitted and acknowledged, her personality to claim half of the property her said
grandfather left at his death can not be denied, by virtue of her right of representation by force of law,
which same she acquired from the moment of the death of her father, Felix Irlanda, nor can her right
be denied to receive and hold half of said property, and it is unjust that her coheirs, the children of
her late uncle, Vicente Irlanda, should be permitted to continue to retain it without any right.
A half of the property left by her grandfather at his death cannot be withheld from the plaintiff,
because her father did not receive it in his lifetime, and as said property is still undivided she has an
unquestionable right to demand the partition thereof as heiress in an intestate estate by right of
representation of her said grandfather. (Sacs. 181, 182 and 183, Code of Civil Procedure.)
It is asserted in one of the errors assigned to the judgment appealed from that the court incurred it
by not declaring that the property of the deceased Anselmo Irlanda had already been partitioned by
him in his lifetime among his heirs and by not sustaining the prescription alleged by the defendants.
Said partition does not seem from the record to be duly proved, but on the contrary, it appears that
the property of the deceased grandfather of the parties still remains pro indiviso, for various
occasions the widow in the second marriage with the deceased Felix Irlanda, father of the plaintiff,
made demand upon the widow of the deceased Vicente Irlanda, mother of the defendants, for
partition of the property she had in her possession, derived from Anselmo Irlanda as one of his heirs,
while said defendant widow, Catalina Pitargue, stated under oath that she did not know whether the

property of her deceased father-in-law had ever been partitioned; and the witness Lorenzo Irlanda in
affirming that some forty years ago Anselmo Irlanda partitioned his property between his two sons,
Vicente and Felix, added that he had heard Anselmo say that he was going to execute an instrument
of partition of said property between his two sons, but he did not know whether this had been done
nor did he learn afterwards whether an instrument recording such partition had ever been executed.
Observing that it is neither usual nor common in the ordinary course of things for a father in his
lifetime to partition his property among his children, especially when he is not very rich and does not
possess much, because it is customary to leave the partition until after his death, and even admitting
as true that Anselmo Irlanda did partition his property, which was not extensive, between his two
sons, although it does not appear what he kept to live on, the delivery of the property partitioned
on the supposition that it was delivered could only have the character of a donation inter vivos,
made according to the witness Lorenzo, some forty years ago. In such case, under law 9, title 4,
partida 5, when its value did not exceed 500 gold maravedis it did not have to be recorded in a
public instrument, but in case of excess thereof it had to be done by exhibition of the instrument for
approval to the judge of the district. The value of the property donated does not appear in the record,
nor is there shown any fulfillment of the requisite of the exhibition required by the law then in force,
for the Civil Code only went into effect toward the close of the year 1989. So it is not proven that
Anselmo Irlanda in his lifetime partitioned his property between his two sons, or that he made a
donation of his property to his sons Felix and Vicente.
The exception of prescription alleged against the action exercised in this case by the plaintiff is
disposed of simply by reading over article 1965 of the Civil Code:
Among coheirs, coowners, or proprietors of adjacent estates, the action to demand the
division of the inheritance, of the thing held in common, or the survey of the adjacent
properties does not prescribe.
With reference to the error imputed to the court for having overruled the motion of the defendants to
annul the agreement entered into between the counsel for both parties, it must be noted that the
stipulations in a case are agreements or admissions regarding certain facts included in the litigation
and are conclusive between the parties. Acts or facts admitted do not require proof and can not be
contradicted, unless it be shown that the admission was made through a palpable mistake, for
parties are not allowed to gainsay their own facts or deny rights which they have previously
recognized. (Sec. 333, Code of Civil Procedure.) Wherefore, and by admitting the reasons assigned
by the court in its order of July 19, 1910, the annulment asked by the defendants is held to have
been properly overruled, as well as the decision of July 26 of the same year with reference to the
claim of intervention presented by Guillermo Fule, for the reasons therein given, especially when he
did not present his claim as intervener in the manner prescribed by law.
As to the obligation of delivering along with the half of the hereditary property the products derived
by the possessors thereof, at least from June 16, 1909, the date of filing the complaint, if the plaintiff
is entitled to receive half of the property inherited from her grandfather, it follows that the fruits
produced thereon unquestionably belong to her. ( Art. 354, Civil Code.)
Article 1063 of the same code prescribes:
On making the division, the coheirs shall reciprocally compensate each other for the income
and fruits each of them may received from the hereditary property for the useful and

necessary expenses made on said property or for the damage caused thereto by malice or
negligence.
The plaintiff has never entered into possession of said half of the property which belongs to her from
the hereditary estate of her grandfather in representation of her father, and therefore her right can
not be denied to receive the fruits derived by the widow and children of her uncle, Vicente Irlanda, at
least from the date when she judicially demanded the delivery of both, for under section 191 of the
Code of Civil Procedure in an action for partition one tenant in common, or joint tenant, or
coparcener may recover from another his just share of rents and profits of the common undivided
property, and the final judgment shall include an allowance for such rents and profits as are found to
be justly recoverable.
After observing that since the death of Anselmo Irlanda in June, 1902, his widow and children have
been enjoying the fruits or products of said four parcels of land which Anselmo Irlanda left at his
death, as well as bearing the expenses of gathering and the loss from poor crops and calamities that
have diminished the product of the coconut trees growing on said lands, the court held that with the
number or quantity of nuts gathered each year the proceeds could be fixed according to the
evidence at an average value of P150 a year, which sum should be divided into two equal parts and
the widow and heirs of Vicente Irlanda obligated to pay to the plaintiff P75 a year from June 16,
1909, to the date of payment, as the value of the half of the product of said lands.
For the foregoing reasons, whereby the errors are assigned on appeal are refuted, we believe that
the judgment should be, and it is, affirmed, except the portion sentencing Catalina Pitargue to pay
the sum of P72 a year as the value of the product of the lands in question, to be divided into two
parts, which portion is reversed, and in lieu thereof she and the heirs of Vicente Irlanda are
sentenced to pay to the plaintiff the sum of P75 a year from June 16, 1909, as half of the value of the
product of the lands in litigation, which belongs to the plaintiff; with costs against the defendants. So
ordered.
Arellano, C.J., Mapa, Johnson, Carson and Trent, JJ., concur.
G.R. No. L-23770

February 18, 1926

MAGIN RIOSA, plaintiff-appellant,

vs.
PABLO ROCHA, MARCELINA CASAS, MARIA CORRAL and CONSOLACION R. DE
CALLEJA, defendants-appellees.
Domingo Imperial for appellant
Mariano Locsin for appellees.
AVANCEA, C.J.:
Maria Corral was united in marriage with the deceased Mariano Riosa, it being her first and only
marriage and during which time she bore him three children named Santiago, Jose and Severina.
The latter died during infancy and the other two survived their father, Mariano Riosa. Santiago Riosa,
no deceased, married Francisca Villanueva, who bore him two children named Magin and
Consolacion Riosa. Jose Riosa, also deceased, married Marcelina Casas and they had one child
who died before the father, the latter therefore leaving no issue. Mariano Riosa left a will dividing his
property between his two children, Santiago and Jose Riosa, giving the latter the eleven parcels of

land described in the complaint. Upon the death of Jose Riosa he left a will in which he named his
wife, Marcelina Casas, as his only heir.
On May 16, 1917, the will of Jose Riosa was filed for probate. Notwithstanding the fact that
Marcelina Casas was the only heir named in the will, on account of the preterition of Maria Corral
who, being the mother of Jose Riosa, was his legitimate heir, I Marcelina Casas and Maria Corral, on
the same date of the filing of the will for probate, entered into a contract by which they divided
between themselves the property left by Jose Riosa, the eleven parcels of land described in the
complaint being assigned to Maria Corral.
On October 26, 1920, Maria Corral sold parcels Nos. 1, 2, 3, 4, 5, 6, 10 and 11 to Marcelina Casas
for the sum of P20,000 in a public instrument which was recorded in the registry of deeds on
November 6, 1920. On November 3, 1920, Marcelina Casas sold these eight parcels of land to
Pablo Rocha for the sum of P60,000 in a public document which was recorded in the registry of
deeds on November 6, 1920. On September 24, 1921, Pablo Rocha returned parcels No. 1, 2, 3, 4,
and 6 to Maria Corral stating in the deed executed for the purpose that these parcels of land had
been erroneously included in the sale made by Maria Corral to Marcelina Casas.
The Court of first Instance denied the probate of the will of Jose Riosa, but on appeal this court
reversed the decision of the lower court and allowed the will to probate. 1 The legal proceedings for
the probate of the will and the settlement of the testate estate of Jose Riosa were followed; and, at
the time of the partition, Maria Corral and Marcelina Casas submitted to the court the contract of
extrajudicial partition which they had entered into on May 16, 1917, and which was approved by the
court, by order of November 12, 1920, as though it had been made within the said testamentary
proceedings.
From the foregoing is appears that the eleven parcels of land described in the complaint were
acquired by Jose Riosa, by lucrative title, from his father Mariano Riosa and that after the death of
Jose Riosa, by operation of law, they passed to his mother Maria Corral. By virtue of article 811 of
the Civil Code these eleven parcels of land are reservable property. It results, furthermore, that
parcels 1, 2, 3, 4, 5, 6, 7, 8 and 9 still belong in fee simple to Maria Corral, and that parcels 10 and
11 were successively sold by Maria Corral to Marcelina Casas and by the latter to Pablo Rocha.
Lastly, it appears that Magin and Consolacion Riosa are the nearest relatives within the third degree
of the line from which this property came.
This action was brought by Magin Riosa, for whom the property should have been reserved, against
Maria Corral, whose duty it was to reserve it, and against Marcelina Casas and Pablo Rocha as
purchasers of parcels 10 and 11. Consolacion Riosa de Calleja who was also bound to make the
reservation was included as a defendant as she refused to join as plaintiff.
The complaint prays that the property therein described be declared reservable property and that the
plaintiffs Jose and Consolacion Riosa be declared reservees; that this reservation be noted in the
registry of deeds; that the sale of parcels 10 and 11 to Marcelina Casas and Pablo Rocha be
declared valid only in so far as it saves the right of reservation in favor of the plaintiff Magin Riosa
and of the defendant Consolacion Riosa, and that this right of reservation be also noted on the
deeds of sale executed in favor of Marcelina Casas and Pablo Rocha; that Maria Corral, Marcelina
Casas and Pablo Rocha give a bond of P50,000, with good and sufficient sureties, in favor of the
reservees as surety for the conservation and maintenance of the improvements existing on the said
reservable property. The dispositive part of the court's decision reads as follows:
For the foregoing reasons it is held:

1. That the eleven parcels of land described in paragraph 6 of the complaint have the
character of reservable property; 2. That the defendant Maria Corral, being compelled to
make the reservation, must reserve them in favor of the plaintiff Magin Riosa and the
defendant Consolacion Riosa de Calleja in case that either of these should survive her; 3.
That Magin Riosa and Consolacion Riosa de Calleja have the right, in case that Maria Corral
should die before them, to receive the said parcels or their equivalent.
In virtue whereof, the defendant Maria Corral is ordered: 1. To acknowledge the right of
Magin Riosa and Consolacion Riosa de Calleja to the reservation of the said parcels of lands
described in the complaint, which she shall expressly record in the registration of said lands
in the office of the register of deeds of this province; 2. To insure the delivery of said parcels
of lands, or their equivalent, to Magin Riosa and Consolacion Riosa de Calleja, should either
of them survive her, either by a mortgage thereon or by a bond in the amount of P30,000,
without express pronouncement as to costs.
The other defendants are absolved from the complaint.
Inasmuch as the reservation from its inception imposes obligations upon the reservor
(reservista) and creates rights in favor of the reservation (reservatarios) it is of the utmost
importance to determine the time when the land acquired the character of reservable property.
It will be remembered that on May 16, 1917, Maria Corral and Marcelina Casas entered into a
contract of extrajudicial partition of the property left by Jose Riosa, in which they assigned to Maria
Corral, as her legitime, the parcels of land here in question, and at the same time petitioned for the
probate of the will of Jose Riosa and instituted the testamentary proceeding. In support of the legality
of the extrajudicial partition between Maria Corral and Marcelina Casas the provision of section 596
of the Code of Civil Procedure is invoked, which authorizes the heirs of a person dying without a will
to make a partition without the intervention of the courts whenever the heirs are all of age and the
deceased has left no debts. But this legal provisions refers expressly to intestate estates and, of
course, excludes testate estates like the one now before us.
When the deceased has left a will the partition of his property must be made in accordance
therewith. According to section 625 of the same Code no will can pass property until it is probated.
And even after being probated it cannot pass any property if its provisions impair the legitime fixed
by law in favor of certain heirs. Therefore, the probate of the will and the validity of the testamentary
provisions must be passed upon by the court.
For the reasons stated, and without making any express finding as to the efficacy of the extrajudicial
partition made by Maria Corral and Marcelina Casas, we hold that for the purposes of the
reservation and the rights and obligations arising thereunder in connection with the favored relatives,
the property cannot be considered as having passed to Maria Corral but from the date when the said
partition was approved by the court, that is, on November 12, 1920. In the case of Pavia vs. De la
Rosa (8 Phil., 70), this court laid down the same doctrine in the following language:
The provisions of Act No. 190 (Code of Civil Procedure) have annulled the provisions of
article 1003 and others of the Civil Code with regard to the pure or simple acceptance of the
inheritance of a deceased person or that made with benefit of inventory and the
consequences thereof.
xxx

xxx

xxx

The heir legally succeeds the deceased from whom he derives his right and title, but only
after the liquidation of the estate, the payment of the debts of same, and the adjudication of
the residue of the estate of the deceased, and in the meantime the only person in charge by
law to attend to all claims against the estate of the deceased debtor is the executor or
administrator appointed by a competent court.
As has been indicated, parcels 10 and 11 described in the complaint were first sold by Maria Corral
to Marcelina Casas who later sold them to Pablo Rocha. In this appeal it is urged that Marcelina
Casas and Pablo Rocha, who were absolved by the court below, be ordered to acknowledge the
reservation as to parcels 10 and 11, acquired by them, and to have the said reservation noted on
their titles. This argument, of course, is useless as to Marcelina Casas for the reason that she
transferred all her rights to Pablo Rocha.
It has been held by jurisprudence that the provisions of the law referred to in article 868 tending to
assure the efficacy of the reservation by the surviving spouse are applicable to the reservation
known as "reserva troncal," referred to in article 811, which is the reservation now under
consideration.
In accordance with article 977, Maria Corral, reservor, is obliged to have the reservation noted in the
registry of deeds in accordance with the provisions of the Mortgage Law which fixes the period of
ninety days for accomplishing it (article 199, in relation with article 191, of the Mortgage Law).
According to article 203 of the General Regulation for the application of the Mortgage Law, this time
must be computed from the acceptance of the inheritance. But as this portion of the Civil Code,
regarding the acceptance of the inheritance, has been repealed, the time, as has been indicated,
must be computed from the adjudication of the property by the court to the heirs, in line with the
decision of this court hereinabove quoted. After the expiration of this period the reservees may
demand compliance with this obligation.
If Maria Corral had not transferred parcels 10 and 11 to another there would be no doubt that she
could be compelled to cause the reservable character of this property to be noted in the registry of
deeds. This land having been sold to Marcelina Casas who, in turn, sold it to Pablo Rocha the
question arises whether the latter can be compelled to have this reservation noted on his title. This
acquisition by Pablo Rocha took place when it was the duty of Maria Corral to make the notation of
the reservation in the registry and at the time when the reservees had no right to compel Maria
Corral to make such notation, because this acquisition was made before the expiration of the period
of ninety days from November 12, 1920, the date of the adjudication by the court, after which the
right of the reservees to commence an action for the fulfillment of the obligation arose. But the land
first passed to Marcelina Casas and later to Pablo Rocha together with the obligation that the law
imposes upon Maria Corral. They could not have acquired a better title than that held by Maria
Corral and if the latter's title was limited by the reservation and the obligation to note it in the registry
of deeds, this same limitation is attached to the right acquired by Marcelina Casas and Pablo Rocha.
In the transmission of reservable property the law imposes the reservation as a resolutory condition
for the benefit of the reservees (article 975, Civil Code). The fact that the resolvable character of the
property was not recorded in the registry of deed at the time that it was acquired by Marcelina Casas
and Pablo Rocha cannot affect the right of the reservees, for the reason that the transfers were
made at the time when it was the obligation of the reservor to note only such reservation and the
reservees did not them have any right to compel her to fulfill such an obligation.
Marcelina Casas, as well as Pablo Rocha, Knew of the reservable character of the property when
they bought it. They had knowledge of the provisions of the last will and testament of Mariano Riosa
by virtue of which these parcels were transferred to Jose Riosa. Pablo Rocha was one of the

legatees in the will. Marcelina Casas was the one who entered into the contract of partition with
Maria Corral, whereby these parcels were adjudicated to the latter, as a legitimate heir of Jose
Riosa. Pablo Rocha was the very person who drafted the contracts of sale of these parcels of land
by Maria Corral to Marcelina Casas and by the latter to himself. These facts, together with the
relationship existing between Maria Corral and Marcelina Casas and Pablo Rocha, the former a
daughter-in-law and the latter a nephew of Maria Corral, amply support the conclusion that both of
them knew that these parcels of land had been inherited by Maria Corral, as her legitime from her
son Jose Riosa who had inherited them, by will, from his father Mariano Riosa, and were reservable
property. Wherefore, the duty of Maria Corral of recording the reservable character of lots 10 and 11
has been transferred to Pablo Rocha and the reservees have an action against him to compel him to
comply with this obligation.
The appellant also claims that the obligation imposed upon Maria Corral of insuring the return of
these parcels of land, or their value, to the reservees by means of a mortgage or a bond in the
amount of P30,000, also applies to Pablo Rocha. The law does not require that the reservor give this
security, the recording of the reservation in the registry of deeds being sufficient (art. 977 of the Civil
Code). There is no ground for this requirement inasmuch as, the notation once is made, the property
will answer for the efficacy of the reservation. This security for the value of the property is required
by law (art. 978, paragraph 4, of the Civil Code) in the case of a reservation by the surviving spouse
when the property has been sold before acquiring the reservable character (art 968 of the Civil
Code), but is not applicable to reservation known as reserva troncal (art 811 of the Civil Code). In the
case of Dizon and Dizon vs. Galang (page 601, ante), this court held that:
* * * As already intimated, the provisions of the law tending to give efficacy to a reservation
by the widowed spouse mentioned in article 968 are applicable to the reserva
troncal provided for in article 811. But as these two reservations vary in some respects, these
rules may be applied to the reserva troncal only in so far as the latter is similar to a
reservation by the widowed spouse. In the reserva troncal the property goes to the reservor
as reservable property and it remains so until the reservation takes place or is extinguished.
In a reservation by the widowed spouse there are two distinct stages, one when the property
goes to the widower without being reservable, and the other when the widower contracts a
second marriage, whereupon the property, which theretofore has been in his possession free
of any encumbrance, becomes reservable. These two stages also affect differently the
transfer that may be made of the property. If the property is sold during the first stage, before
becoming reservable, it is absolutely free and is transferred to the purchaser unencumbered.
But if the sale is made during the second stage, that is, when the duty to reserve has arisen,
the property goes to the purchaser subject to the reservation, without prejudice to the
provisions of the Mortgage Law. This is the reason why the law provides that should the
property be sold before it becomes reservable, or before the widower contracts another
marriage, he will be compelled to secure the value of the property by a mortgage upon
contracting a new marriage, so that the reservation may not lose its efficacy and that the
rights of those for whom the reservation is made may be assured. This mortgage is not
required by law when the sale is made after the reservation will follow the property, without
prejudice to the contrary provisions of the Mortgage Law and the rights of innocent
purchasers, there being no need to secure the value of the property since it is liable for the
efficacy of the reservation by a widowed spouse to secure the value of the property sold by
the widower, before becoming reservable are not applicable to the reserva troncal where the
property goes to the ascendant already reservable in character. A sale in the case of reserva
troncal might be analogous to a sale made by the widower after contacting a second
marriage in the case of a reservation by the widowed spouse.
Since Maria Corral did not appeal, we cannot modify the appealed judgment in so far as it is
unfavorable to her. As she has been ordered to record in the registry the reservable character of the

other parcels of land, the subject of this action, the questions raised by the appellant as to her are
decided.
The judgment appealed from is modified and Pablo Rocha is ordered to record in the registry of
deeds the reservable character of parcels 10 11, the subject of this complaint, without special
pronouncement as to costs. So ordered.
Street Malcolm, Villamor, Strand, Johns, Romualdez and Villa-Real, JJ., concur.

Footnotes
1

In re will Riosa, 39 Phil., 23.

HEIRS OF PEDRO REGANON, JOVENCIA REGANON, MENCIA REGANON, JOSEFA

REGANON, VIOLETA REGANON, and FLORA REGANON, plaintiffs-appellees,
vs.
RUFINO IMPERIAL, defendant-appellant.
Torcuato L. Galon for plaintiffs-appellees.
V. Lacaya for defendant-appellant.
BENGZON, J.P., J.:
This is an appeal from the orders dated June 9, 1964, July 14, 1964 and August 11, 1964,
respectively, of the Court of First Instance of Zamboanga del Norte (Dipolog, Branch II).
The facts of the case are admitted by both parties.
On February 22, 1963, the heirs of Pedro Reganon filed a complaint for recovery of ownership and
possession of about one-hectare portion of a parcel of land (Lot No. 1 or Lot No. 4952, situated at
Miasi, Polanco, Zamboanga del Norte, covered by O.T.C. No. 1447, with an area of 7.9954
hectares), with damages, against Rufino Imperial.
Defendant not having filed an answer within the reglementary period, the plaintiffs on April 8, 1963
filed a motion to declare the former in default. The trial court granted the motion in its order dated
April 10, 1963.
On April 23, 1963, the plaintiffs presented their evidence ex parte before the Clerk of Court acting as
Commissioner. The court a quo on May 6, 1963, rendered a decision declaring the plaintiffs lawful
owners of the land in question and entitled to its peaceful possession and enjoyment; ordering
defendant immediately to vacate the portion occupied by him and to restore the peaceful possession
thereof to plaintiffs; and sentencing defendant to pay plaintiffs the amount of P1,929.20 and the
costs.

On November 29, 1963, the plaintiffs filed a motion for issuance of a writ of execution. This was
granted by the trial court in its order of December 9, 1963.
The Deputy Provincial Sheriff submitted on February 8, 1964 a sheriff's return of proceedings
reporting the garnishment and sale of a carabao and goat belonging to defendant for P153.00, and
the attachment and sale of defendant's parcel of land covered by Tax Declaration No. 4694, situated
in Sicet, Polanco, Zamboanga del Norte, for P500.00 both sales having been made to the only
bidder, plaintiffs' counsel Atty. Vic T. Lacaya.
On March 13, 1964, the Philippine National Bank deposited in the Philippine National Bank-Dipolog
Branch the residuary estate of its former ward, Eulogio Imperial, in the sum of P10,303.80, pursuant
to an order of Branch I of the Court of First Instance of Zamboanga del Norte in Sp. Proc. No. R-145.
On May 25, 1964, the heirs of said Eulogio Imperial, one of whom is defendant, executed a Deed of
Extrajudicial Partition of the residuary estate, wherein was apportioned P1,471.97 as defendant
Rufino Imperial's share.
Informed of this development, the plaintiffs filed on June 5, 1964 an ex parte motion for issuance of
an alias writ of execution and of an order directing the manager, or the representative, of the
Philippine National Bank-Dipolog Branch, to hold the share of defendant and deliver the same to the
provincial sheriff of the province to be applied to the satisfaction of the balance of the money
judgment. This was granted by the trial court (Branch II) in its order dated June 9, 1964.
On June 17, 1964, the Deputy Provincial Sheriff issued a sheriffs notification for levy addressed to
defendant, giving notice of the garnishment of the rights, interests, shares and participation that
defendant may have over the residuary estate of the late Eulogio Imperial, consisting of the money
deposited in the Philippine National Bank-Dipolog Branch.
Defendant, through counsel, appearing for the first time before the trial court, on June 24, 1964 filed
a motion for reconsideration of the order dated June 9, 1964, and to quash the alias writ of execution
issued pursuant to it, to which plaintiffs filed their opposition on July 6, 1964. On July 14, 1964, the
trial court denied defendant's aforesaid motion.
Defendant's second motion for reconsideration likewise having denied by the trial court in its order of
August 11, 1964, defendant appealed to Us, raising the following issues:
(1) Upon the death of a ward, is the money accumulated in his guardianship proceedings
and deposited in a bank, still considered in custodia legis and therefore cannot be attached?
(2) Is the residuary estate of a U.S. veteran, which consists in the aggregate accumulated
sum from the monthly allowances given him by the United States Veterans Administration
(USVA) during his lifetime, exempt from execution?
Defendant-appellant argues that the property of an incompetent under guardianship is in custodia
legis and therefore can not be attached.
It is true that in a former case 1 it was held that property under custodia legis can not be attached. But
this was under the old Rules of Court. The new Rules of Court 2 now specifically provides for the

procedure to be followed in case what is attached is in custodia legis. 3 The clear import of this new
provision is that property undercustodia legis is now attachable, subject to the mode set forth in said
rule.
Besides, the ward having died, the guardianship proceedings no longer subsist:
The death of the ward necessarily terminates the guardianship, and thereupon all powers
and duties of the guardian cease, except the duty, which remains, to make a proper
accounting and settlement in the probate court. 4
As a matter of fact, the guardianship proceedings was ordered conditionally closed by Branch I of
the Court of First Instance of Zamboanga del Norte in which it was pending, in its order of February
8, 1964, where it stated
In the meantime, the guardian Philippine National Bank is hereby directed to deposit the
residuary estate of said ward with its bank agency in Dipolog, this province, in the name of
the estate of the deceased ward Eulogio Imperial, preparatory to the eventual distribution of
the same to the heirs when the latter shall be known, and upon proof of deposit of said
residuary estate, the guardian Philippine National Bank shall forthwith be relieved from any
responsibility as such, and this proceeding shall be considered closed and terminated. 5
And the condition has long been fulfilled, because on March 13, 1964 the Philippine National BankManila deposited the residuary estate of the ward with the Philippine National Bank-Dipolog Branch,
evidenced by a receipt attached to the records in Sp. Proc. No. R-145. 6
When Eulogio Imperial died on September 13, 1962, the rights to his succession from the
moment of his death were transmitted to his heirs, one of whom is his son and heir, defendantappellant herein. 7 This automatic transmission can not but proceed with greater ease and certainty
than in this case where the parties agree that the residuary estate is not burdened with any debt.
For,
The rights to the succession of a person are transmitted from the moment of death, and
where, as in this case, the heir is of legal age and the estate is not burdened with any debts,
said heir immediately succeeds, by force of law, to the dominion, ownership, and possession
of the properties of his predecessor and consequently stands legally in the shoes of the
latter. 8
That the interest of an heir in the estate of a deceased person may be attached for purposes of
execution, even if the estate is in the process of settlement before the courts, is already a settled
matter in this jurisdiction. 9
It is admitted that the heirs of Eulogio Imperial, including herein defendant-appellant, have on May
25, 1964 executed a Deed of Extrajudicial Partition. This instrument suffices to settle the entire
estate of the decedent provided all the requisites for its validity are fulfilled 10 even without the
approval of the court. Therefore, the estate for all practical purposes have been settled. The heirs
are at full liberty to withdraw the residuary estate from the Philippine National Bank-Dipolog Branch
and divide it among themselves. The only reason they have not done so is because of the alleged
illegal withdrawal from said estate of the amount of P1,080.00 by one Gloria Gomez by authority of
Branch I of the Court of First Instance of Zamboanga del Norte, which incident is now on appeal

before the Court of Appeals. This appeal, however, does not detract any from the fact that the
guardianship proceedings is closed and terminated and the residuary estate no longer
under custodia legis.
Finally, it is defendant-appellant's position that the residuary estate of Eulogio Imperial, a former U.S.
veteran, having been set aside from the monthly allowances given him by the United States
Veterans Administration (USVA) during his lifetime, is exempt from execution.
Any pension, annuity, or gratuity granted by a Government to its officers or employees in recognition
of past services rendered, is primordially aimed at tiding them over during their old age and/or
disability. This is therefore a right personalissima, purely personal because founded on necessity. It
requires no argument to show that where the recipient dies, the necessity motivating or underlying
its grant necessarily ceases to be. Even more so in this case where the law 11 providing for the
exemption is calculated to benefit U.S. veterans residing here, and is therefore merely a
manifestation of comity.
Besides, as earlier stated, the heirs of Eulogio Imperial, one of whom is appellant, have already
executed a Deed of Extrajudicial Partition the end result of which is that the property is no longer
the property of the estate but of the individual heirs. And it is settled that:
When the heirs by mutual agreement have divided the estate among themselves, one of the
heirs can not therefore secure the appointment of an administrator to take charge of and
administer the estate or a part thereof. The property is no longer the property of the estate,
but of the individual heirs, whether it remains undivided or not. 12
WHEREFORE, the orders appealed from are hereby affirmed, with costs against defendantappellant. So ordered.
1wph1.t

Concepcion, C.J., Reyes, J.B.L., Dizon, Makalintal, Zaldivar, Sanchez, Castro, Angeles and
Fernando, JJ., concur.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-15499

February 28, 1962

ANGELA M. BUTTE, plaintiff-appellant,

vs.
MANUEL UY and SONS, INC., defendant-appellee.
Delgado, Flores and Macapagal for plaintiff-appellant.
Pelaez and Jalandoni for defendant-appellee.
REYES, J.B.L., J.:

Appeal from a decision of the Court of First instance of Manila dismissing the action for legal
redemption filed by plaintiff-appellant.
It appears that Jose V. Ramirez, during his lifetime, was a co-owner of a house and lot located at
Sta. Cruz, Manila, as shown by Transfer Certificate of Title No. 52789, issued in the name of the
following co-owners: Marie Garnier Vda. de Ramirez, 1/6; Jose V. Ramirez, 1/6; Jose E. Ramirez,
1/6; Rita de Ramirez, 1/6; and Jose Ma. Ramirez, 1/6.
On October 20, 1951, Jose V. Ramirez died. Subsequently, Special Proceeding No. 15026 was
instituted to settle his estate, that included the one-sixth (1/6) undivided share in the aforementioned
property. And although his last will and testament, wherein he bequeathed his estate to his children
and grandchildren and one-third (1/3) of the free portion to Mrs. Angela M. Butte, hereinafter referred
to as plaintiff-appellant, has been admitted to probate, the estate proceedings are still pending up to
the present on account of the claims of creditors which exceed the assets of the deceased. The
Bank of the Philippine Islands was appointed judicial administrator.
Meanwhile, on December 9, 1958, Mrs. Marie Garnier Vda. de Ramirez, one of the co-owners of the
late Jose V. Ramirez in the Sta. Cruz property, sold her undivided 1/6 share to Manuel Uy & Sons,
Inc. defendant-appellant herein, for the sum of P500,000.00. After the execution by her attorney-infact, Mrs. Elsa R. Chambers, of an affidavit to the effect that formal notices of the sale had been sent
to all possible redemptioners, the deed of sale was duly registered and Transfer Certificate of Title
No. 52789 was cancelled in lieu of which a new one was issued in the name of the vendee and the
other-co-owners.
On the same day (December 9, 1958), Manuel Uy & Sons, Inc. sent a letter to the Bank of the
Philippine Islands as judicial administrator of the estate of the late Jose V. Ramirez informing it of the
above-mentioned sale. This letter, together with that of the bank, was forwarded by the latter to Mrs.
Butte c/o her counsel Delgado, Flores & Macapagal, Escolta, Manila, and having received the same
on December 10, 1958, said law office delivered them to plaintiff-appellant's son, Mr. Miguel Papa,
who in turn personally handed the letters to his mother, Mrs. Butte, on December 11 and 12, 1958.
Aside from this letter of defendant-appellant, the vendor, thru her attorney-in-fact Mrs. Chambers,
wrote said bank on December 11, 1958 confirming vendee's letter regarding the sale of her 1/6
share in the Sta. Cruz property for the sum of P500,000.00. Said letter was received by the bank on
December 15, 1958 and having endorsed it to Mrs. Butte's counsel, the latter received the same on
December 16, 1958. Appellant received the letter on December 19, 1958.
On January 15, 1959, Mrs. Angela M. Butte, thru Atty. Resplandor Sobretodo, sent a letter and a
Philippine National Bank cashier's check in the amount of P500,000.00 to Manuel Uy & Sons, Inc.
offering to redeem the 1/6 share sold by Mrs. Marie Garnier Vda. de Ramirez. This tender having
been refused, plaintiff on the same day consigned the amount in court and filed the corresponding
action for legal redemption. Without prejudice to the determination by the court of the reasonable
and fair market value of the property sold which she alleged to be grossly excessive, plaintiff prayed
for conveyance of the property, and for actual, moral and exemplary damages.
After the filing by defendant of its answer containing a counterclaim, and plaintiff's reply thereto, trial
was held, after which the court rendered decision on May 13, 1959, dismissing plaintiff's complaint
on the grounds that she has no right to redeem the property and that, if ever she had any, she
exercised the same beyond the statutory 30-day period for legal redemptions provided by the Civil
Code. The counterclaim of defendant for damages was likewise dismissed for not being sufficiently
established. Both parties appealed directly to this Court.

Based on the foregoing facts, the main issues posed in this appeal are: (1) whether or not plaintiffappellant, having been bequeathed 1/3 of the free portion of the estate of Jose V. Ramirez, can
exercise the right of legal redemption over the 1/6 share sold by Mrs. Marie Garnier Vda. de Ramirez
despite the presence of the judicial administrator and pending the final distribution of her share in the
testate proceedings; and (2) whether or not she exercised the right of legal redemption within the
period prescribed by law.
The applicable law involved in the present case is contained in Articles 1620, p. 1, and 1623 of the
Civil Code of the Philippines, which read as follows:
ART. 1620. A co-owner of a thing may exercise the right of redemption in case the shares of
all the other-co-owners or of any of them, are sold to a third person. If the price of the
alienation is grossly excessive, the redemptioner shall pay only a reasonable one.
Should two or more co-owners desire to exercise the right of redemption, they may only do
so in proportion to the share they may respectively have in the thing owned in common.
(1522a)
ART. 1623. The right of legal predemption or redemption shall not be exercised except within
thirty days from the notice in writing by the respective vendor, or by the vendor, as the case
may be. The deed of sale shall not be accorded in the Registry of Property, unless
accompanied by an affidavit of the vendor that he has given written notice thereof at all
possible redemptioners.
The right of redemption of co-owners excludes that of adjoining owners. (1524a)
That the appellant Angela M. Butte is entitled to exercise the right of legal redemption is clear. As
testamentary heir of the estate of J.V. Ramirez, she and her co-heirs acquired an interest in the
undivided one-sixth (1/6) share owned by her predecessor (causante) in the Santa Cruz property,
from the moment of the death of the aforesaid co-owner, J.V. Ramirez. By law, the rights to the
succession of a deceased persons are transmitted to his heirs from the moment of his death, and
the right of succession includes all property rights and obligations that survive the decedent.
ART. 776. The inheritance includes all the property, rights and obligations of a person which
are not extinguished by his death. (659)
ART. 777. The rights to the succession are transmitted from the moment of the death of the
decedent. (657a)
ART. 947. The legatee or devisee acquires a right to the pure and simple legacies or
devisees from the death of the testator, and transmits it to his heirs. (881a)
The principle of transmission as of the time of the predecessor's death is basic in our Civil Code, and
is supported by other related articles. Thus, the capacity of the heir is determined as of the time the
decedent died (Art. 1034); the legitime is to be computed as of the same moment(Art. 908), and so
is the in officiousness of the donationinter vivos (Art. 771). Similarly, the legacies of credit and
remission are valid only in the amount due and outstanding at the death of the testator (Art. 935),and
the fruits accruing after that instant are deemed to pertain to the legatee (Art. 948).
As a consequence of this fundamental rule of succession, the heirs of Jose V. Ramirez acquired his
undivided share in the Sta. Cruz property from the moment of his death, and from that instant, they

became co-owners in the aforesaid property, together with the original surviving co-owners of their
decedent (causante). A co-owner of an undivided share is necessarily a co-owner of the whole.
Wherefore, any one of the Ramirez heirs, as such co-owner, became entitled to exercise the right of
legal redemption (retracto de comuneros) as soon as another co-owner (Maria Garnier Vda. de
Ramirez) had sold her undivided share to a stranger, Manuel Uy & Sons, Inc. This right of
redemption vested exclusively in consideration of the redemptioner's share which the law nowhere
takes into account.
The situation is in no wise altered by the existence of a judicial administrator of the estate of Jose V.
Ramirez while under the Rules of Court the administrator has the right to the possession of the real
and personal estate of the deceased, so far as needed for the payment of the decedent's debts and
the expenses of administration (sec. 3, Rule 85), and the administrator may bring or defend actions
for the recovery or protection of the property or rights of the deceased (sec. 2, Rule 88), such rights
of possession and administration do not include the right of legal redemption of the undivided share
sold to Uy & Company by Mrs. Garnier Ramirez. The reason is obvious: this right of legal redemption
only came into existence when the sale to Uy & Sons, Inc. was perfected, eight (8) years after the
death of Jose V. Ramirez, and formed no part of his estate. The redemption right vested in the heirs
originally, in their individual capacity, they did not derivatively acquire it from their decedent, for when
Jose V. Ramirez died, none of the other co-owners of the Sta. Cruz property had as yet sold his
undivided share to a stranger. Hence, there was nothing to redeem and no right of redemption; and if
the late Ramirez had no such right at his death, he could not transmit it to his own heirs. Much less
could Ramirez acquire such right of redemption eight years after his death, when the sale to Uy &
Sons, Inc. was made; because death extinguishes civil personality, and, therefore, all further juridical
capacity to acquire or transmit rights and obligations of any kind (Civil Code of the Phil., Art. 42).
It is argued that the actual share of appellant Mrs. Butte in the estate of Jose V. Ramirez has not
been specifically determined as yet, that it is still contingent; and that the liquidation of estate of Jose
V. Ramirez may require the alienation of the decedent's undivided portion in the Sta. Cruz property,
in which event Mrs. Butte would have no interest in said undivided portion. Even if it were true, the
fact would remain that so long as that undivided share remains in the estate, the heirs of Jose V.
Ramirez own it, as the deceased did own it before his demise, so that his heirs are now as much coowners of the Sta. Cruz property as Jose V. Ramirez was himself a co-owner thereof during his
lifetime. As co-owners of the property, the heirs of Jose V. Ramirez, or any one of them, became
personally vested with right of legal redemption as soon as Mrs. Garnier sold her own pro-indiviso
interest to Uy & Sons. Even if subsequently, the undivided share of Ramirez (and of his heirs) should
eventually be sold to satisfy the creditors of the estate, it would not destroy their ownership of it
before the sale, but would only convey or transfer it as in turn sold (of it actually is sold) to pay his
creditors. Hence, the right of any of the Ramirez heirs to redeem the Garnier share will not be
retroactively affected. All that the law requires is that the legal redemptioner should be a co-owner at
the time the undivided share of another co-owner is sold to a stranger. Whether or not the
redemptioner will continue being a co-owner after exercising the legal redemptioner is irrelevant for
the purposes of law.
Nor it can be argued that if the original share of Ramirez is sold by the administrator, his heirs would
stand in law as never having acquired that share. This would only be true if the inheritance is
repudiated or the heir's quality as such is voided. But where the heirship is undisputed, the
purchaser of hereditary property is not deemed to have acquired the title directly from the deceased
Ramirez, because a dead man can not convey title, nor from the administrator who owns no part of
the estate; the purchaser can only derive his title from the Ramirez heirs, represented by the
administrator, as their trustee or legal representative.

The right of appellant Angela M. Butte to make the redemption being established, the next point of
inquiry is whether she had made or tendered the redemption price within the 30 days from notices as
prescribed by law. This period, be it noted, is peremptory, because the policy of the law is not to
leave the purchaser's title in uncertainty beyond the established 30-day period. In considering
whether or not the offer to redeem was timely, we think that the notice given by the vendee (buyer)
should not be taken into account. The text of Article 1623 clearly and expressly prescribes that the
thirty days for making the redemption are to be counted from notice in writing by the vendor. Under
the old law (Civ. Code of 1889, Art. 1524), it was immaterial who gave the notice; so long as the
redeeming co-owner learned of the alienation in favor of the stranger, the redemption period began
to run. It is thus apparent that the Philippine legislature in Article 1623 deliberately selected a
particular method of giving notice, and that method must be deemed exclusive (39 Am. Jur., 237;
Payne vs. State, 12 S.W. [2d] 528). As ruled in Wampler vs. Lecompte, 150 Atl. 458 (affd. in 75 Law
Ed. [U.S.] 275)
Why these provisions were inserted in the statute we are not informed, but we may assume
until the contrary is shown, that a state of facts in respect thereto existed, which warranted
the legislature in so legislating.
The reasons for requiring that the notice should be given by the seller, and not by the buyer, are
easily divined. The seller of an undivided interest is in the best position to know who are his coowners that under the law must be notified of the sale. Also, the notice by the seller removes all
doubts as to the fact of the sale, its perfection; and its validity, the notice being a reaffirmation
thereof, so that the party need not entertain doubt that the seller may still contest the alienation. This
assurance would not exist if the notice should be given by the buyer.
The notice which became operative is that given by Mrs. Chambers, in her capacity as attorney-infact of the vendor Marie Garnier Vda. de Ramirez. Under date of December 11, 1958, she wrote the
Administrator Bank of the Philippine Islands that her principal's one-sixth (1/6) share in the Sta. Cruz
property had been sold to Manuel Uy & Sons, Inc. for P500,000.00. The Bank received this notice on
December 15, 1958, and on the same day endorsed it to Mrs. Butte, care of Delgado, Flores and
Macapagal (her attorneys), who received the same on December 16, 1958. Mrs. Butte tendered
redemption and upon the vendee's refusal, judicially consigned the price of P500,000.00 on January
15, 1959. The latter date was the last one of the thirty days allowed by the Code for the redemption,
counted by excluding December 16, 1958 and including January 15, 1959, pursuant to Article 13 of
the Civil Code. Therefore, the redemption was made in due time.
The date of receipt of the vendor's notice by the Administrator Bank (December 15) can not be
counted as determining the start of thirty days; for the Administrator of the estate was not a proper
redemptioner, since, as previously shown, the right to redeem the share of Marie Garnier did not
form part of the estate of Jose V. Ramirez.
We find no jurisdiction for appellant's claim that the P500,000,00. paid by Uy & Sons, Inc. for the
Garnier share is grossly excessive. Gross excess cannot be predicated on mere individual estimates
of market price by a single realtor.
The redemption and consignation having been properly made, the Uy counterclaim for damages and
attorney's fees predicated on the assumption that plaintiff's action was clearly unfounded, becomes
untenable.
PREMISES CONSIDERED, the judgment appealed from is hereby reversed and set aside, and
another one entered:

(a) Declaring the consignation of P500,000,00 made by appellant Angela M. Butte duly and
properly made;
(b) Declaring that said appellant properly exercised in due time the legal redemption of the
one-sixth (1/6) undivided portion of the land covered by Certificate of Title No. 59363 of the
Office of the Register of Deeds of the City of Manila, sold on December 9, 1958 by Marie
Garnier Vda. de Ramirez to appellant Manuel Uy & Sons, Inc.
(c) Ordering appellant Manuel Uy & Sons, Inc. to accept the consigned price and to convey
to Angela M. Butte the undivided portion above referred to, within 30 days from the time our
decision becomes final, and subsequently to account for the rentals and fruits of the
redeemed share from and after January 15, 1958, until its conveyance; and.
(d) Ordering the return of the records to the court of origin for further proceedings
conformable to this opinion.
Without finding as to costs.
Bengzon, C.J., Padilla, Bautista Angelo, Labrador, Concepcion, Barrera and Dizon, JJ., concur.
Paredes and De Leon, JJ., took no part.

The Lawphil Project - Arellano Law Foundation

G.R. No. L-41715 June 18, 1976
ROSALIO BONILLA (a minor) SALVACION BONILLA (a minor) and PONCIANO BONILLA (their
father) who represents the minors, petitioners,
vs.
LEON BARCENA, MAXIMA ARIAS BALLENA, ESPERANZA BARCENA, MANUEL BARCENA,
AGUSTINA NERI, widow of JULIAN TAMAYO and HON. LEOPOLDO GIRONELLA of the Court
of First Instance of Abra,respondents.
Federico Paredes for petitioners.
Demetrio V. Pre for private respondents.

MARTIN, J:
This is a petition for review 1 of the Order of the Court of First Instance of Abra in Civil Case No. 856,
entitled Fortunata Barcena vs. Leon Barcena, et al., denying the motions for reconsideration of its order
dismissing the complaint in the aforementioned case.
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 Court of First Instance of Abra, to quiet title
over certain parcels of land located in Abra.

On May 9, 1975, defendants filed a written motion to dismiss the complaint, but before the hearing of
the motion to dismiss, the counsel for the plaintiff moved to amend the complaint in order to include
certain allegations therein. The motion to amend the complaint was granted and on July 17, 1975,
plaintiffs filed their amended complaint.
On August 4, 1975, the defendants filed another motion to dismiss the complaint on the ground that
Fortunata Barcena is dead and, therefore, has no legal capacity to sue. Said motion to dismiss was
heard on August 14, 1975. In said hearing, counsel for the plaintiff confirmed the death of Fortunata
Barcena, and asked for substitution by her minor children and her husband, the petitioners herein;
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.
On August 19, 1975, counsel for the plaintiff received a copy of the order dismissing the complaint
and on August 23, 1975, he moved to set aside the order of the dismissal pursuant to Sections 16
and 17 of Rule 3 of the Rules of Court. 2
On August 28, 1975, the court denied the motion for reconsideration filed by counsel for the plaintiff
for lack of merit. On September 1, 1975, counsel for deceased plaintiff filed a written manifestation
praying that the minors Rosalio Bonilla and Salvacion Bonilla be allowed to substitute their deceased
mother, but the court denied the counsel's prayer for lack of merit. From the order, counsel for the
deceased plaintiff filed a second motion for reconsideration of the order dismissing the complaint
claiming that the same is in violation of Sections 16 and 17 of Rule 3 of the Rules of Court but the
same was denied.
Hence, this petition for review.
The Court reverses the respondent Court and sets aside its order dismissing the complaint in Civil
Case No. 856 and its orders denying the motion for reconsideration of said order of dismissal. 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. If thereafter she died, the Rules of
Court prescribes the procedure whereby a party who died during the pendency of the proceeding
can be substituted. 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. 3 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. 4 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. 5 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.

Under Section 17, Rule 3 of the Rules of Court "after a party dies and the claim is not thereby
extinguished, the court shall order, upon proper notice, the legal representative of the deceased to
appear and be substituted for the deceased, within such time as may be granted ... ." The question
as to whether an action survives or not depends on the nature of the action and the damage sued
for. 6 In the causes of action which survive the wrong complained affects primarily and principally property
and property rights, the injuries to the person being merely incidental, while in the causes of action which
do not survive the injury complained of is to the person, the property and rights of property affected being
incidental. 7 Following the foregoing criterion 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 the same 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. In the instant
case the respondent Court did not have to bother ordering the opposing party to procure the appointment
of a legal representative of the deceased because her counsel has not only asked that the minor children
be substituted for her but also suggested that their uncle be appointed as guardian ad litem for them
because their father is busy in Manila earning a living for the family. But the respondent Court refused the
request for substitution on the ground that the children were still minors and cannot sue in court. This is
another grave error because the respondent Court ought to have known that under the same Section 17,
Rule 3 of the Rules of Court, the court is directed to appoint a guardian ad litem for the minor heirs.
Precisely in the instant case, the counsel for the deceased plaintiff has suggested to the respondent Court
that the uncle of the minors be appointed to act as guardian ad litem for them. 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.
IN VIEW OF THE FOREGOING, the order of the respondent Court dismissing the complaint in Civil
Case No. 856 of the Court of First Instance of Abra and the motions for reconsideration of the order
of dismissal of said complaint are set aside and the respondent Court is hereby directed to allow the
substitution of the minor children, who are the petitioners therein for the deceased plaintiff and to
appoint a qualified person as guardianad litem for them. Without pronouncement as to costs.
SO ORDERED.
Teehankee (Chairman), Makasiar, Esguerra and Muoz Palma, JJ., concur.
Footnotes
Today is Tuesday, July 12, 2016

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. L-4963

January 29, 1953

MARIA USON, plaintiff-appellee,

vs.
MARIA DEL ROSARIO, CONCEPCION NEBREDA, CONRADO NEBREDA, DOMINADOR NEBREDA, AND FAUS
NEBREDA, Jr., defendants-appellants.
Priscilo Evangelista for appellee.
Brigido G. Estrada for appellant.
BAUTISTA ANGELO, J.:

This is an action for recovery of the ownership and possession of five (5) parcels of land situated in the Municipality o
Province of Pangasinan, filed by Maria Uson against Maria del Rosario and her four children named Concepcion, Co
Dominador, and Faustino, surnamed Nebreda, who are all of minor age, before the Court of First Instance of Pangas

Maria Uson was the lawful wife of Faustino Nebreda who upon his death in 1945 left the lands involved in this litigatio
Nebreda left no other heir except his widow Maria Uson. However, plaintiff claims that when Faustino Nebreda died in
common-law wife Maria del Rosario took possession illegally of said lands thus depriving her of their possession and

Defendants in their answer set up as special defense that on February 21, 1931, Maria Uson and her husband, the la
Nebreda, executed a public document whereby they agreed to separate as husband and wife and, in consideration o
separation, Maria Uson was given a parcel of land by way of alimony and in return she renounced her right to inherit
property that may be left by her husband upon his death (Exhibit 1).

After trial, at which both parties presented their respective evidence, the court rendered decision ordering the defenda
to the plaintiff the ownership and possession of the lands in dispute without special pronouncement as to costs. Defen
interposed the present appeal.

There is no dispute that Maria Uson, plaintiff-appellee, is the lawful wife of Faustino Nebreda, former owner of the five
lands litigated in the present case. There is likewise no dispute that Maria del Rosario, one of the defendants-appella
a common-law wife of the late Faustino Nebreda with whom she had four illegitimate children, her now co-defendants
appears that Faustino Nebreda died in 1945 much prior to the effectivity of the new Civil Code. With this background,
that when Faustino Nebreda died in 1945 the five parcels of land he was seized of at the time passed from the mome
to his only heir, his widow Maria Uson (Article 657, old Civil Code).As this Court aptly said, "The property belongs to t
moment of the death of the ancestor as completely as if the ancestor had executed and delivered to them a deed for
before his death" (Ilustre vs. Alaras Frondosa, 17 Phil., 321). From that moment, therefore, the rights of inheritance o
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 expre
to inherit any future property that her husband may acquire and leave upon his death in the deed of separation they h
on February 21, 1931, cannot be entertained for the simple reason that future inheritance cannot be the subject of a c
it be renounced (1 Manresa, 123, sixth edition; Tolentino on Civil Code, p. 12; Osorio vs. Osorio and Ynchausti Steam
Phil., 531).

But defendants contend that, while it is true that the four minor defendants are illegitimate children of the late Faustin
under the old Civil Code are not entitled to any successional rights, however, under the new Civil Code which became
June, 1950, they are given the status and rights of natural children and are entitled to the successional rights which th
to the latter (article 2264 and article 287, new Civil Code), and because these successional rights were declared for t
the new code, they shall be given retroactive effect even though the event which gave rise to them may have occurre
prior legislation (Article 2253, new Civil Code).

There is no merit in this claim. Article 2253 above referred to provides indeed that rights which are declared for the fir
have retroactive effect even though the event which gave rise to them may have occurred under the former legislation
only when the new rights do not prejudice any vested or acquired right of the same origin. Thus, said article provides
should be declared for the first time in this Code, it shall be effective at once, even though the act or event which give
may have been done or may have occurred under the prior legislation, provided said new right does not prejudice or
vested or acquired right, of the same origin." As already stated in the early part of this decision, the right of ownership
over the lands in question became vested in 1945 upon the death of her late husband and this is so because of the im
provision of the law which commands that the rights to succession are transmitted from the moment of death (Article
Code). The new right recognized by the new Civil Code in favor of the illegitimate children of the deceased cannot, th
asserted to the impairment of the vested right of Maria Uson over the lands in dispute.

As regards the claim that Maria Uson, while her deceased husband was lying in state, in a gesture of pity or compass
assign the lands in question to the minor children for the reason that they were acquired while the deceased was livin
mother and Maria Uson wanted to assuage somewhat the wrong she has done to them, this much can be said; apart
that this claim is disputed, we are of the opinion that said assignment, if any, partakes of the nature of a donation of re
inasmuch as it involves no material consideration, and in order that it may be valid it shall be made in a public docum
accepted either in the same document or in a separate one (Article 633, old Civil Code). Inasmuch as this essential fo
been followed, it results that the alleged assignment or donation has no valid effect.
WHEREFORE, the decision appealed from is affirmed, without costs.
Paras, C.J., Pablo, Bengzon, Padilla, Tuason, Montemayor, Reyes, Jugo and Labrador, JJ., concur.
. No. L-28040 August 18, 1972
TESTATE ESTATE OF JOSEFA TANGCO, JOSE DE BORJA, administrator-appellee; JOSE DE
BORJA, as administrator, CAYETANO DE BORJA, MATILDE DE BORJA and CRISANTO DE
BORJA (deceased) as Children of Josefa Tangco, appellees,
vs.
TASIANA VDA. DE DE BORJA, Special Administratrix of the Testate Estate of Francisco de
Borja,appellant. .
G.R. No L-28568 August 18, 1972
TESTATE ESTATE OF THE LATE FRANCISCO DE BORJA, TASIANA O. VDA. DE DE BORJA,
special Administratrix appellee,
vs.
JOSE DE BORJA, oppositor-appellant.
G.R. No. L-28611 August 18, 1972

TASIANA 0. VDA. DE BORJA, as Administratrix of the Testate Estate of the late Francisco de
Borja,plaintiff-appellee,
vs.
JOSE DE BORJA, as Administrator of the Testate Estate of the late Josefa Tangco, defendantappellant.
L-28040
Pelaez, Jalandoni & Jamir for administrator-appellee.
Quiogue & Quiogue for appellee Matilde de Borja.
Andres Matias for appellee Cayetano de Borja.
Sevilla & Aquino for appellant.
L-28568
Sevilla & Aquino for special administratrix-appellee.
Pelaez, Jalandoni & Jamir for oppositor-appellant.
L-28611
Sevilla & Aquino for plaintiff-appellee.
Pelaez, Jalandoni & Jamir and David Gueverra for defendant-appellant.

REYES, J.B.L., J.:p

Of these cases, the first, numbered L-28040 is an appeal by Tasiana Ongsingco Vda. de de Borja,
special administratrix of the testate estate of Francisco de Borja, 1 from the approval of a compromise
agreement by the Court of First Instance of Rizal, Branch I, in its Special Proceeding No. R-7866, entitled,
"Testate Estate of Josefa Tangco, Jose de Borja, Administrator".
Case No. L-28568 is an appeal by administrator Jose Borja from the disapproval of the same
compromise agreement by the Court of First Instance of Nueva Ecija, Branch II, in its Special
Proceeding No. 832, entitled, "Testate Estate of Francisco de Borja, Tasiana O. Vda. de de Borja,
Special Administratrix".
And Case No. L-28611 is an appeal by administrator Jose de Borja from the decision of the Court of
First Instance of Rizal, Branch X, in its Civil Case No. 7452, declaring the Hacienda Jalajala
Poblacion, which is the main object of the aforesaid compromise agreement, as the separate and
exclusive property of the late Francisco de Borja and not a conjugal asset of the community with his
first wife, Josefa Tangco, and that said hacienda pertains exclusively to his testate estate, which is

under administrator in Special Proceeding No. 832 of the Court of First Instance of Nueva Ecija,
Branch II.
It is uncontested that Francisco de Borja, upon the death of his wife Josefa Tangco on 6 October
1940, filed a petition for the probate of her will which was docketed as Special Proceeding No. R7866 of the Court of First Instance of Rizal, Branch I. The will was probated on 2 April 1941. In 1946,
Francisco de Borja was appointed executor and administrator: in 1952, their son, Jose de Borja, was
appointed co-administrator. When Francisco died, on 14 April 1954, Jose became the sole
administrator of the testate estate of his mother, Josefa Tangco. While a widower Francisco de Borja
allegedly took unto himself a second wife, Tasiana Ongsingco. Upon Francisco's death, Tasiana
instituted testate proceedings in the Court of First Instance of Nueva Ecija, where, in 1955, she was
appointed special administratrix. The validity of Tasiana's marriage to Francisco was questioned in
said proceeding.
The relationship between the children of the first marriage and Tasiana Ongsingco has been plagued
with several court suits and counter-suits; including the three cases at bar, some eighteen (18) cases
remain pending determination in the courts. The testate estate of Josefa Tangco alone has been
unsettled for more than a quarter of a century. In order to put an end to all these litigations, a
compromise agreement was entered into on 12 October 1963, 2 by and between "[T]he heir and son of
Francisco de Borja by his first marriage, namely, Jose de Borja personally and as administrator of the
Testate Estate of Josefa Tangco," and "[T]he heir and surviving spouse of Francisco de Borja by his
second marriage, Tasiana Ongsingco Vda. de Borja, assisted by her lawyer, Atty. Luis Panaguiton Jr." The
terms and conditions of the compromise agreement are as follows:
AGREEMENT
THIS AGREEMENT made and entered into by and between
The heir and son of Francisco de Borja by his first marriage, namely, Jose de Borja
personally and as administrator of the Testate Estate of Josefa Tangco,
AND
The heir and surviving spouse of Francisco de Borja by his second marriage, Tasiana
Ongsingco Vda. de Borja, assisted by her lawyer, Atty. Luis Panaguiton Jr.
WITNESSETH
THAT it is the mutual desire of all the parties herein terminate and settle, with finality,
the various court litigations, controversies, claims, counterclaims, etc., between them
in connection with the administration, settlement, partition, adjudication and
distribution of the assets as well as liabilities of the estates of Francisco de Borja and
Josefa Tangco, first spouse of Francisco de Borja.
THAT with this end in view, the parties herein have agreed voluntarily and without
any reservations to enter into and execute this agreement under the following terms
and conditions:

1. That the parties agree to sell the Poblacion portion of the Jalajala properties
situated in Jalajala, Rizal, presently under administration in the Testate Estate of
Josefa Tangco (Sp. Proc. No. 7866, Rizal), more specifically described as follows:
Linda al Norte con el Rio Puwang que la separa de la jurisdiccion del
Municipio de Pililla de la Provincia de Rizal, y con el pico del Monte
Zambrano; al Oeste con Laguna de Bay; por el Sur con los
herederos de Marcelo de Borja; y por el Este con los terrenos de la
Familia Maronilla
with a segregated area of approximately 1,313 hectares at the amount of P0.30 per
square meter.
2. That Jose de Borja agrees and obligates himself to pay Tasiana Ongsingco Vda.
de de Borja the total amount of Eight Hundred Thousand Pesos (P800,000)
Philippine Currency, in cash, which represent P200,000 as his share in the payment
and P600,000 as pro-rata shares of the heirs Crisanto, Cayetano and Matilde, all
surnamed de Borja and this shall be considered as full and complete payment and
settlement of her hereditary share in the estate of the late Francisco de Borja as well
as the estate of Josefa Tangco, Sp. Proc. No. 832-Nueva Ecija and Sp. Proc. No.
7866-Rizal, respectively, and to any properties bequeathed or devised in her favor by
the late Francisco de Borja by Last Will and Testament or by Donation Inter Vivos or
Mortis Causa or purportedly conveyed to her for consideration or otherwise. The
funds for this payment shall be taken from and shall depend upon the receipt of full
payment of the proceeds of the sale of Jalajala, "Poblacion."
3. That Tasiana Ongsingco Vda. de de Borja hereby assumes payment of that
particular obligation incurred by the late Francisco de Borja in favor of the
Rehabilitation Finance Corporation, now Development Bank of the Philippines,
amounting to approximately P30,000.00 and also assumes payment of her 1/5 share
of the Estate and Inheritance taxes on the Estate of the late Francisco de Borja or
the sum of P3,500.00, more or less, which shall be deducted by the buyer of Jalajala,
"Poblacion" from the payment to be made to Tasiana Ongsingco Vda. de Borja under
paragraph 2 of this Agreement and paid directly to the Development Bank of the
Philippines and the heirs-children of Francisco de Borja.
4. Thereafter, the buyer of Jalajala "Poblacion" is hereby authorized to pay directly to
Tasiana Ongsingco Vda. de de Borja the balance of the payment due her under
paragraph 2 of this Agreement (approximately P766,500.00) and issue in the name
of Tasiana Ongsingco Vda. de de Borja, corresponding certified checks/treasury
warrants, who, in turn, will issue the corresponding receipt to Jose de Borja.
5. In consideration of above payment to Tasiana Ongsingco Vda. de de Borja, Jose
de Borja personally and as administrator of the Testate Estate of Josefa Tangco, and
Tasiana Ongsingco Vda. de de Borja, for themselves and for their heirs, successors,
executors, administrators, and assigns, hereby forever mutually renounce, withdraw,
waive, remise, release and discharge any and all manner of action or actions, cause
or causes of action, suits, debts, sum or sums of money, accounts, damages, claims
and demands whatsoever, in law or in equity, which they ever had, or now have or

may have against each other, more specifically Sp. Proceedings Nos. 7866 and
1955, CFI-Rizal, and Sp. Proc. No. 832-Nueva Ecija, Civil Case No. 3033, CFI
Nueva Ecija and Civil Case No. 7452-CFI, Rizal, as well as the case filed against
Manuel Quijal for perjury with the Provincial Fiscal of Rizal, the intention being to
completely, absolutely and finally release each other, their heirs, successors, and
assigns, from any and all liability, arising wholly or partially, directly or indirectly, from
the administration, settlement, and distribution of the assets as well as liabilities of
the estates of Francisco de Borja and Josefa Tangco, first spouse of Francisco de
Borja, and lastly, Tasiana Ongsingco Vda. de de Borja expressly and specifically
renounce absolutely her rights as heir over any hereditary share in the estate of
Francisco de Borja.
6. That Tasiana Ongsingco Vda. de de Borja, upon receipt of the payment under
paragraph 4 hereof, shall deliver to the heir Jose de Borja all the papers, titles and
documents belonging to Francisco de Borja which are in her possession and said
heir Jose de Borja shall issue in turn the corresponding receive thereof.
7. That this agreement shall take effect only upon the fulfillment of the sale of the
properties mentioned under paragraph 1 of this agreement and upon receipt of the
total and full payment of the proceeds of the sale of the Jalajala property "Poblacion",
otherwise, the non-fulfillment of the said sale will render this instrument NULL AND
VOID AND WITHOUT EFFECT THEREAFTER.
IN WITNESS WHEREOF, the parties hereto have her unto set their hands in the City
of Manila, Philippines, the 12th of October, 1963.
On 16 May 1966, Jose de Borja submitted for Court approval the agreement of 12 October 1963 to
the Court of First Instance of Rizal, in Special Proceeding No. R-7866; and again, on 8 August 1966,
to the Court of First Instance of Nueva Ecija, in Special Proceeding No. 832. Tasiana Ongsingco
Vda. de de Borja opposed in both instances. The Rizal court approved the compromise agreement,
but the Nueva Ecija court declared it void and unenforceable. Special administratrix Tasiana
Ongsingco Vda. de de Borja appealed the Rizal Court's order of approval (now Supreme Court G.R.
case No. L-28040), while administrator Jose de Borja appealed the order of disapproval (G.R. case
No. L-28568) by the Court of First Instance of Nueva Ecija.
The genuineness and due execution of the compromised agreement of 12 October 1963 is not
disputed, but its validity is, nevertheless, attacked by Tasiana Ongsingco on the ground that: (1) the
heirs cannot enter into such kind of agreement without first probating the will of Francisco de Borja;
(2) that the same involves a compromise on the validity of the marriage between Francisco de Borja
and Tasiana Ongsingco; and (3) that even if it were valid, it has ceased to have force and effect.
In assailing the validity of the agreement of 12 October 1963, Tasiana Ongsingco and the Probate
Court of Nueva Ecija rely on this Court's decision in Guevara vs. Guevara. 74 Phil. 479, wherein the
Court's majority held the view that the presentation of a will for probate is mandatory and that the
settlement and distribution of an estate on the basis of intestacy when the decedent left a will, is
against the law and public policy. It is likewise pointed out by appellant Tasiana Ongsingco that
Section 1 of Rule 74 of the Revised Rules explicitly conditions the validity of an extrajudicial
settlement of a decedent's estate by agreement between heirs, upon the facts that "(if) the
decedentleft no will and no debts, and the heirs are all of age, or the minors are represented by their

judicial and legal representatives ..." The will of Francisco de Borja having been submitted to the
Nueva Ecija Court and still pending probate when the 1963 agreement was made, those
circumstances, it is argued, bar the validity of the agreement.
Upon the other hand, in claiming the validity of the compromise agreement, Jose de Borja stresses
that at the time it was entered into, on 12 October 1963, the governing provision was Section 1, Rule
74 of the original Rules of Court of 1940, which allowed the extrajudicial settlement of the estate of a
deceased person regardless of whether he left a will or not. He also relies on the dissenting opinion
of Justice Moran, in Guevara vs. Guevara, 74 Phil. 479, wherein was expressed the view that if the
parties have already divided the estate in accordance with a decedent's will, the probate of the will is
a useless ceremony; and if they have divided the estate in a different manner, the probate of the will
is worse than useless.
The doctrine of Guevara vs. Guevara, ante, is not applicable to the case at bar. This is apparent from
an examination of the terms of the agreement between Jose de Borja and Tasiana Ongsingco.
Paragraph 2 of said agreement specifically stipulates that the sum of P800,000 payable to Tasiana
Ongsingco
shall be considered as full complete payment settlement of her hereditary
share in the estate of the late Francisco de Borja as well as the estate of Josefa
Tangco, ... and to any properties bequeathed or devised in her favor by the late
Francisco de Borja by Last Will and Testament or by Donation Inter Vivos or Mortis
Causa or purportedly conveyed to her for consideration or otherwise.
This provision evidences beyond doubt that the ruling in the Guevara case is not applicable to the
cases at bar. 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) 3 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. 4 Of course, the effect of
such alienation is to be deemed limited to what is ultimately adjudicated to the vendor heir. However, the
aleatory character of the contract does not affect the validity of the transaction; neither does the
coetaneous agreement that the numerous litigations between the parties (the approving order of the Rizal
Court enumerates fourteen of them, Rec. App. pp. 79-82) are to be considered settled and should be
dismissed, although such stipulation, as noted by the Rizal Court, gives the contract the character of a
compromise that the law favors, for obvious reasons, if only because it serves to avoid a multiplicity of
suits.
It is likewise worthy of note in this connection that as the surviving spouse of Francisco de Borja,
Tasiana Ongsingco was his compulsory heir under article 995 et seq. of the present Civil Code.
Wherefore, barring unworthiness or valid disinheritance, her successional interest existed
independent of Francisco de Borja's last will and testament and would exist even if such will were
not probated at all. Thus, the prerequisite of a previous probate of the will, as established in the
Guevara and analogous cases, can not apply to the case of Tasiana Ongsingco Vda. de de Borja.

Since the compromise contract Annex A was entered into by and between "Jose de Borja personally
and as administrator of the Testate Estate of Josefa Tangco" on the one hand, and on the other, "the
heir and surviving spouse of Francisco de Borja by his second marriage, Tasiana Ongsingco Vda. de
de Borja", it is clear that the transaction was binding on both in their individual capacities, upon the
perfection of the contract, even without previous authority of the Court to enter into the same. The
only difference between an extrajudicial compromise and one that is submitted and approved by the
Court, is that the latter can be enforced by execution proceedings. Art. 2037 of the Civil Code is
explicit on the point:
8. Art. 2037. A compromise has upon the parties the effect and authority of res
judicata; but there shall be no execution except in compliance with a judicial
compromise.
It is argued by Tasiana Ongsingco that while the agreement Annex A expressed no
definite period for its performance, the same was intended to have a resolutory
period of 60 days for its effectiveness. In support of such contention, it is averred that
such a limit was expressly stipulated in an agreement in similar terms entered into by
said Ongsingco with the brothers and sister of Jose de Borja, to wit, Crisanto, Matilde
and Cayetano, all surnamed de Borja, except that the consideration was fixed at
P600,000 (Opposition, Annex/Rec. of Appeal, L-28040, pp. 39- 46) and which
contained the following clause:
III. That this agreement shall take effect only upon the consummation of the sale of
the property mentioned herein and upon receipt of the total and full payment of the
proceeds of the sale by the herein owner heirs-children of Francisco de Borja,
namely, Crisanto, Cayetano and Matilde, all surnamed de Borja; Provided that if no
sale of the said property mentioned herein is consummated, or the non-receipt of the
purchase price thereof by the said owners within the period of sixty (60) days from
the date hereof, this agreement will become null and void and of no further effect.
Ongsingco's argument loses validity when it is considered that Jose de Borja was not a party to this
particular contract (Annex 1), and that the same appears not to have been finalized, since it bears no
date, the day being left blank "this day of October 1963"; and while signed by the parties, it was
not notarized, although plainly intended to be so done, since it carries a proposed notarial ratification
clause. Furthermore, the compromise contract with Jose de Borja (Annex A), provides in its par. 2
heretofore transcribed that of the total consideration of P800, 000 to be paid to Ongsingco, P600,000
represent the "prorata share of the heirs Crisanto, Cayetano and Matilde all surnamed de Borja"
which corresponds to the consideration of P600,000 recited in Annex 1, and that circumstance is
proof that the duly notarized contract entered into wit Jose de Borja under date 12 October 1963
(Annex A), was designed to absorb and supersede the separate unformalize agreement with the
other three Borja heirs. Hence, the 60 days resolutory term in the contract with the latter (Annex 1)
not being repeated in Annex A, can not apply to the formal compromise with Jose de Borja. It is
moreover manifest that the stipulation that the sale of the Hacienda de Jalajala was to be made
within sixty days from the date of the agreement with Jose de Borja's co-heirs (Annex 1) was plainly
omitted in Annex A as improper and ineffective, since the Hacienda de Jalajala (Poblacion) that was
to be sold to raise the P800,000 to be paid to Ongsingco for her share formed part of the estate of
Francisco de Borja and could not be sold until authorized by the Probate Court. The Court of First
Instance of Rizal so understood it, and in approving the compromise it fixed a term of 120 days

counted from the finality of the order now under appeal, for the carrying out by the parties for the
terms of the contract.
This brings us to the plea that the Court of First Instance of Rizal had no jurisdiction to approve the
compromise with Jose de Borja (Annex A) because Tasiana Ongsingco was not an heir in the estate
of Josefa Tangco pending settlement in the Rizal Court, but she was an heir of Francisco de Borja,
whose estate was the object of Special Proceeding No. 832 of the Court of First Instance of Nueva
Ecija. This circumstance is irrelevant, since what was sold by Tasiana Ongsingco was only her
eventual share in the estate of her late husband, not the estate itself; and as already shown, that
eventual share she owned from the time of Francisco's death and the Court of Nueva Ecija could not
bar her selling it. As owner of her undivided hereditary share, Tasiana could dispose of it in favor of
whomsoever she chose. Such alienation is expressly recognized and provided for by article 1088 of
the present Civil Code:
Art. 1088. Should any of the heirs sell his hereditary rights to a stranger before the
partition, any or all of the co-heirs may be subrogated to the rights of the purchaser
by reimbursing him for the price of the sale, provided they do so within the period of
one month from the time they were notified in writing of the sale of the vendor.
If a sale of a hereditary right can be made to a stranger, then a fortiori sale thereof to a coheir could
not be forbidden.
Tasiana Ongsingco further argues that her contract with Jose de Borja (Annex "A") is void because it
amounts to a compromise as to her status and marriage with the late Francisco de Borja. The point
is without merit, for the very opening paragraph of the agreement with Jose de Borja (Annex "A")
describes her as "the heir and surviving spouse of Francisco de Borja by his second marriage,
Tasiana Ongsingco Vda. de de Borja", which is in itself definite admission of her civil status. There is
nothing in the text of the agreement that would show that this recognition of Ongsingco's status as
the surviving spouse of Francisco de Borja was only made in consideration of the cession of her
hereditary rights.
It is finally charged by appellant Ongsingco, as well as by the Court of First Instance of Nueva Ecija
in its order of 21 September 1964, in Special Proceedings No. 832 (Amended Record on Appeal in
L-28568, page 157), that the compromise agreement of 13 October 1963 (Annex "A") had been
abandoned, as shown by the fact that, after its execution, the Court of First Instance of Nueva Ecija,
in its order of 21 September 1964, had declared that "no amicable settlement had been arrived at by
the parties", and that Jose de Borja himself, in a motion of 17 June 1964, had stated that the
proposed amicable settlement "had failed to materialize".
It is difficult to believe, however, that the amicable settlement referred to in the order and motion
above-mentioned was the compromise agreement of 13 October 1963, which already had been
formally signed and executed by the parties and duly notarized. What the record discloses is that
some time after its formalization, Ongsingco had unilaterally attempted to back out from the
compromise agreement, pleading various reasons restated in the opposition to the Court's approval
of Annex "A" (Record on Appeal, L-20840, page 23): that the same was invalid because of the lapse
of the allegedly intended resolutory period of 60 days and because the contract was not preceded by
the probate of Francisco de Borja's will, as required by this Court's Guevarra vs. Guevara ruling; that
Annex "A" involved a compromise affecting Ongsingco's status as wife and widow of Francisco de
Borja, etc., all of which objections have been already discussed. It was natural that in view of the

widow's attitude, Jose de Borja should attempt to reach a new settlement or novatory agreement
before seeking judicial sanction and enforcement of Annex "A", since the latter step might ultimately
entail a longer delay in attaining final remedy. That the attempt to reach another settlement failed is
apparent from the letter of Ongsingco's counsel to Jose de Borja quoted in pages 35-36 of the brief
for appellant Ongsingco in G.R. No. 28040; and it is more than probable that the order of 21
September 1964 and the motion of 17 June 1964 referred to the failure of the parties' quest for a
more satisfactory compromise. But the inability to reach a novatory accord can not invalidate the
original compromise (Annex "A") and justifies the act of Jose de Borja in finally seeking a court order
for its approval and enforcement from the Court of First Instance of Rizal, which, as heretofore
described, decreed that the agreement be ultimately performed within 120 days from the finality of
the order, now under appeal.
We conclude that in so doing, the Rizal court acted in accordance with law, and, therefore, its order
should be upheld, while the contrary resolution of the Court of First Instance of Nueva Ecija should
be, and is, reversed.
In her brief, Tasiana Ongsingco also pleads that the time elapsed in the appeal has affected her
unfavorably, in that while the purchasing power of the agreed price of P800,000 has diminished, the
value of the Jalajala property has increased. But the fact is that her delay in receiving the payment of
the agreed price for her hereditary interest was primarily due to her attempts to nullify the agreement
(Annex "A") she had formally entered into with the advice of her counsel, Attorney Panaguiton. And
as to the devaluation de facto of our currency, what We said in Dizon Rivera vs. Dizon, L-24561, 30
June 1970, 33 SCRA 554, that "estates would never be settled if there were to be a revaluation with
every subsequent fluctuation in the values of currency and properties of the estate", is particularly
opposite in the present case.
Coming now to Case G.R. No. L-28611, the issue is whether the Hacienda de Jalajala (Poblacion),
concededly acquired by Francisco de Borja during his marriage to his first wife, Josefa Tangco, is the
husband's private property (as contended by his second spouse, Tasiana Ongsingco), or whether it
forms part of the conjugal (ganancial) partnership with Josefa Tangco. The Court of First Instance of
Rizal (Judge Herminio Mariano, presiding) declared that there was adequate evidence to overcome
the presumption in favor of its conjugal character established by Article 160 of the Civil Code.
We are of the opinion that this question as between Tasiana Ongsingco and Jose de Borja has
become moot and academic, in view of the conclusion reached by this Court in the two preceding
cases (G.R. No. L-28568), upholding as valid the cession of Tasiana Ongsingco's eventual share in
the estate of her late husband, Francisco de Borja, for the sum of P800,000 with the accompanying
reciprocal quit-claims between the parties. But as the question may affect the rights of possible
creditors and legatees, its resolution is still imperative.
It is undisputed that the Hacienda Jalajala, of around 4,363 hectares, had been originally acquired
jointly by Francisco de Borja, Bernardo de Borja and Marcelo de Borja and their title thereto was duly
registered in their names as co-owners in Land Registration Case No. 528 of the province of Rizal,
G.L.R.O. Rec. No. 26403 (De Barjo vs. Jugo, 54 Phil. 465). Subsequently, in 1931, the Hacienda
was partitioned among the co-owners: the Punta section went to Marcelo de Borja; the Bagombong
section to Bernardo de Borja, and the part in Jalajala proper (Poblacion) corresponded to Francisco
de Borja (V. De Borja vs. De Borja 101 Phil. 911, 932).
The lot allotted to Francisco was described as

Una Parcela de terreno en Poblacion, Jalajala: N. Puang River; E. Hermogena

Romero; S. Heirs of Marcelo de Borja O. Laguna de Bay; containing an area of
13,488,870 sq. m. more or less, assessed at P297,410. (Record on Appeal, pages 7
and 105)
On 20 November 1962, Tasiana O. Vda. de Borja, as Administratrix of the Testate Estate of
Francisco de Borja, instituted a complaint in the Court of First Instance of Rizal (Civil Case No. 7452)
against Jose de Borja, in his capacity as Administrator of Josefa Tangco (Francisco de Borja's first
wife), seeking to have the Hacienda above described declared exclusive private property of
Francisco, while in his answer defendant (now appellant) Jose de Borja claimed that it was conjugal
property of his parents (Francisco de Borja and Josefa Tangco), conformably to the presumption
established by Article 160 of the Philippine Civil Code (reproducing Article 1407 of the Civil Code of
1889), to the effect that:
Art. 160. All property of the marriage is presumed to belong to the conjugal
partnership, unless it be proved that it pertains exclusively to the husband or to the
wife.
Defendant Jose de Borja further counterclaimed for damages, compensatory, moral and exemplary,
as well as for attorney's fees.
After trial, the Court of First Instance of Rizal, per Judge Herminio Mariano, held that the plaintiff had
adduced sufficient evidence to rebut the presumption, and declared the Hacienda de Jalajala
(Poblacion) to be the exclusive private property of the late Francisco de Borja, and his Administratrix,
Tasiana Ongsingco Vda. de Borja, to be entitled to its possession. Defendant Jose de Borja then
appealed to this Court.
The evidence reveals, and the appealed order admits, that the character of the Hacienda in question
as owned by the conjugal partnership De Borja-Tangco was solemnly admitted by the late Francisco
de Borja no less than two times: first, in the Reamended Inventory that, as executor of the estate of
his deceased wife Josefa Tangco, he filed in the Special Proceedings No. 7866 of the Court of First
Instance of Rizal on 23 July 1953 (Exhibit "2"); and again, in the Reamended Accounting of the
same date, also filed in the proceedings aforesaid (Exhibit "7"). Similarly, the plaintiff Tasiana O. Vda.
de Borja, herself, as oppositor in the Estate of Josefa Tangco, submitted therein an inventory dated 7
September 1954 (Exhibit "3") listing the Jalajala property among the "Conjugal Properties of the
Spouses Francisco de Borja and Josefa Tangco". And once more, Tasiana Ongsingco, as
administratrix of the Estate of Francisco de Borja, in Special Proceedings No. 832 of the Court of
First Instance of Nueva Ecija, submitted therein in December, 1955, an inventory wherein she listed
the Jalajala Hacienda under the heading "Conjugal Property of the Deceased Spouses Francisco de
Borja and Josefa Tangco, which are in the possession of the Administrator of the Testate Estate of
the Deceased Josefa Tangco in Special Proceedings No. 7866 of the Court of First Instance of Rizal"
(Exhibit "4").
Notwithstanding the four statements aforesaid, and the fact that they are plain admissions against
interest made by both Francisco de Borja and the Administratrix of his estate, in the course of judicial
proceedings in the Rizal and Nueva Ecija Courts, supporting the legal presumption in favor of the
conjugal community, the Court below declared that the Hacienda de Jalajala (Poblacion) was not
conjugal property, but the private exclusive property of the late Francisco de Borja. It did so on the

strength of the following evidences: (a) the sworn statement by Francis de Borja on 6 August 1951
(Exhibit "F") that
He tomado possession del pedazo de terreno ya delimitado (equivalente a 1/4 parte,
337 hectareas) adjunto a mi terreno personal y exclusivo (Poblacion de Jalajala,
Rizal).
and (b) the testimony of Gregorio de Borja, son of Bernardo de Borja, that the entire Hacienda had
been bought at a foreclosure sale for P40,100.00, of which amount P25,100 was contributed by
Bernardo de Borja and P15,000. by Marcelo de Borja; that upon receipt of a subsequent demand
from the provincial treasurer for realty taxes the sum of P17,000, Marcelo told his brother Bernardo
that Francisco (son of Marcelo) wanted also to be a co-owner, and upon Bernardo's assent to the
proposal, Marcelo issue a check for P17,000.00 to pay the back taxes and said that the amount
would represent Francisco's contribution in the purchase of the Hacienda. The witness further
testified that
Marcelo de Borja said that that money was entrusted to him by Francisco de
Borja when he was still a bachelor and which he derived from his business
transactions. (Hearing, 2 February 1965, t.s.n., pages 13-15) (Emphasis supplied)
The Court below, reasoning that not only Francisco's sworn statement overweighed the admissions
in the inventories relied upon by defendant-appellant Jose de Borja since probate courts can not
finally determine questions of ownership of inventoried property, but that the testimony of Gregorio
de Borja showed that Francisco de Borja acquired his share of the original Hacienda with his private
funds, for which reason that share can not be regarded as conjugal partnership property, but as
exclusive property of the buyer, pursuant to Article 1396(4) of Civil Code of 1889 and Article 148(4)
of the Civil Code of the Philippines.
The following shall be the exclusive property of each spouse:
xxx xxx xxx
(4) That which is purchased with exclusive money of the wife or of the husband.
We find the conclusions of the lower court to be untenable. In the first place, witness Gregorio de
Borja's testimony as to the source of the money paid by Francisco for his share was plain hearsay,
hence inadmissible and of no probative value, since he was merely repeating what Marcelo de Borja
had told him (Gregorio). There is no way of ascertaining the truth of the statement, since both
Marcelo and Francisco de Borja were already dead when Gregorio testified. In addition, the
statement itself is improbable, since there was no need or occasion for Marcelo de Borja to explain
to Gregorio how and when Francisco de Borja had earned the P17,000.00 entrusted to Marcelo. A
ring of artificiality is clearly discernible in this portion of Gregorio's testimony.
As to Francisco de Borja's affidavit, Exhibit "F", the quoted portion thereof (ante, page 14) does not
clearly demonstrate that the "mi terreno personal y exclusivo (Poblacion de Jalajala, Rizal) " refers
precisely to the Hacienda in question. The inventories (Exhibits 3 and 4) disclose that there were two
real properties in Jalajala owned by Francisco de Borja, one of 72.038 sq. m., assessed at P44,600,
and a much bigger one of 1,357.260.70 sq. m., which is evidently the Hacienda de Jalajala
(Poblacion). To which of these lands did the affidavit of Francisco de Borja (Exhibit "F") refer to? In

addition, Francisco's characterization of the land as "mi terreno personal y exclusivo" is plainly selfserving, and not admissible in the absence of cross examination.
It may be true that the inventories relied upon by defendant-appellant (Exhibits "2", "3", "4" and "7")
are not conclusive on the conjugal character of the property in question; but as already noted, they
are clear admissions against the pecuniary interest of the declarants, Francisco de Borja and his
executor-widow, Tasiana Ongsingco, and as such of much greater probative weight than the selfserving statement of Francisco (Exhibit "F"). Plainly, the legal presumption in favor of the conjugal
character of the Hacienda de Jalajala (Poblacion) now in dispute has not been rebutted but actually
confirmed by proof. Hence, the appealed order should be reversed and the Hacienda de Jalajala
(Poblacion) declared property of the conjugal partnership of Francisco de Borja and Josefa Tangco.
No error having been assigned against the ruling of the lower court that claims for damages should
be ventilated in the corresponding special proceedings for the settlement of the estates of the
deceased, the same requires no pro announcement from this Court.
IN VIEW OF THE FOREGOING, the appealed order of the Court of First Instance of Rizal in Case
No. L-28040 is hereby affirmed; while those involved in Cases Nos. L-28568 and L-28611 are
reversed and set aside. Costs against the appellant Tasiana Ongsingco Vda. de Borja in all three (3)
cases.
Concepcion, C.J., Makalintal, Zaldivar, Castro, Teehankee, Barredo, Makasiar, Antonio and
Esguerra, JJ., concur.
Fernando, J., took no part.

SECOND DIVISION
G.R. No. 75884 September 24, 1987
JULITA GO ONG, FOR HERSELF AND AS JUDICIAL GUARDIAN OF STEVEN GO
ONG, petitioners,
vs.
THE HON. COURT OF APPEALS, ALLIED BANKING CORPORATION and the CITY SHERIFF
OF QUEZON CITY, respondents.

PARAS, J.:
This is a petition for review on certiorari of the March 21, 1986 Decision

* of the Court of Appeals in AC-G.R. CV

No. 02635, "Julita Ong etc. vs. Allied Banking Corp. et al." affirming, with modification, the January 5, 1984 Decision of the Regional Trial
Court of Quezon City in Civil Case No. Q-35230.

The uncontroverted facts of this case, as found by the Court of Appeals, are as follows:

...: Two (2) parcels of land in Quezon City Identified as Lot No. 12, Block 407, Psd
37326 with an area of 1960.6 sq. m. and Lot No. 1, Psd 15021, with an area of
3,660.8 sq. m. are covered by Transfer Certificate of Title No. 188705 in the name of
"Alfredo Ong Bio Hong married to Julita Go Ong "(Exh. D). Alfredo Ong Bio Hong
died on January 18, 1975 and Julita Go Ong was appointed administratrix of her
husband's estate in Civil Case No. 107089. The letters of administration was
registered on TCT No. 188705 on October 23, 1979. Thereafter, Julita Go Ong sold
Lot No. 12 to Lim Che Boon, and TCT No. 188705 was partially cancelled and TCT
No. 262852 was issued in favor of Lim Che Boon covering Lot No. 12 (Exh. D-4). On
June 8, 1981 Julita Go Ong through her attorney-in-fact Jovita K. Yeo (Exh. 1)
mortgaged Lot No. 1 to the Allied Banking Corporation to secure a loan of
P900,000.00 obtained by JK Exports, Inc. The mortgage was registered on TCT No.
188705 on the same date with the following notation: "... mortgagee's consent
necessary in case of subsequent alienation or encumbrance of the property other
conditions set forth in Doc. No. 340, Page No. 69, Book No. XIX, of the Not. Public of
Felixberto Abad". On the loan there was due the sum of P828,000.00 and Allied
Banking Corporation tried to collect it from Julita Go Ong, (Exh. E). Hence, the
complaint alleging nullity of the contract for lack of judicial approval which the bank
had allegedly promised to secure from the court. In response thereto, the bank
averred that it was plaintiff Julita Go Ong who promised to secure the court's
approval, adding that Julita Go Ong informed the defendant that she was processed
the sum of P300,000.00 by the JK Exports, Inc. which will also take charge of the
interest of the loan.
Concluding, the trial court ruled:
Absent (of) any evidence that the property in question is the capital of
the deceased husband brought into the marriage, said property
should be presumed as acquired during the marriage and, therefore,
conjugal property,
After the dissolution of the marriage with the death of plaintiff's
husband, the plaintiff acquired, by law, her conjugal share, together
with the hereditary rights thereon. (Margate vs. Rabacal, L-14302,
April 30, 1963). Consequently, the mortgage constituted on said
property, upon express authority of plaintiff, notwithstanding the lack
of judicial approval, is valid, with respect to her conjugal share
thereon, together with her hereditary rights.
On appeal by petitioner, respondent Court of Appeals affirmed, with modification, the appealed
decision (Record, pp. 19-22). The dispositive portion of the appellate court's decision reads:
WHEREFORE, with the modification that the extrajudicial foreclosure proceedings
instituted by defendant against plaintiff shall be held in abeyance to await the final
result of Civil Case No. 107089 of the Court of First Instance of Manila, 6th Judicial
District Branch XXXII, entitled "IN THE MATTER OF THE INTESTATE ESTATE OF
THE LATE ALFREDO ONG BIO: JULITA GO ONG, ADMINISTRATRIX". In
pursuance with which the restraining order of the lower court in this case restraining
the sale of the properties levied upon is hereby ordered to continue in full force and

effect coterminous with the final result of Civil Case No. 107089, the decision
appealed from is hereby affirmed. Costs against plaintiff-appellant.
SO ORDERED.
On April 8, 1986, petitioner moved for the reconsideration of the said decision (Ibid., pp. 24-29), but
in a Resolution dated September 11, 1986, respondent court denied the motion for lack of merit
(Ibid., p. 23). Hence, the instant petition (Ibid., pp. 6-17).
The Second Division of this Court, in a Resolution dated November 19, 1986 (Rollo, p. 30), without
giving due course to the petition, resolved to require private respondent to comment thereon and it
did on February 19, 1987 (Ibid., pp. 37-42). Thereafter, in a Resolution dated April 6, 1987, the
petition was given due course and the parties were required to file their respective memoranda
(Ibid., p. 43).
Petitioner filed her Memorandum on May 13, 1987 (Ibid., pp. 45-56), while private respondent filed
its Memorandum on May 20, 1987 (Ibid., pp. 62-68).
The sole issue in this case is
WHETHER OR NOT THE MORTGAGE CONSTITUTED OVER THE PARCEL OF LAND UNDER
PETITIONER'S ADMINISTRATION IS NULL AND VOID FOR WANT OF JUDICIAL APPROVAL.
The instant petition is devoid of merit.
The well-settled rule that the findings of fact of the trial court are entitled to great respect, carries
even more weight when affirmed by the Court of Appeals as in the case at bar.
In brief, the lower court found: (1) that the property under the administration of petitioner the wife
of the deceased, is a community property and not the separate property of the latter; (2) that the
mortgage was constituted in the wife's personal capacity and not in her capacity as administratrix;
and (3) that the mortgage affects the wife's share in the community property and her inheritance in
the estate of her husband.
Petitioner, asserting that the mortgage is void for want of judicial approval, quoted Section 7 of Rule
89 of the Rules of Court and cited several cases wherein this Court ruled that the regulations
provided in the said section are mandatory.
While petitioner's assertion may have merit insofar as the rest of the estate of her husband is
concerned the same is not true as regards her conjugal share and her hereditary rights in the estate.
The records show that petitioner willingly and voluntarily mortgaged the property in question
because she was processed by JK Exports, Inc. the sum of P300,000.00 from the proceeds of the
loan; and that at the time she executed the real estate mortgage, there was no court order
authorizing the mortgage, so she took it upon herself, to secure an order.
Thus, in confirming the findings of the lower court, as supported by law and the evidence, the Court
of Appeals aptly ruled that Section 7 of Rule 89 of the Rules of Court is not applicable, since the

mortgage was constituted in her personal capacity and not in her capacity as administratrix of the
estate of her husband.
Nevertheless, petitioner, citing the cases of Picardal, et al. vs. Lladas (21 SCRA 1483)
and Fernandez, et al. vs. Maravilla (10 SCRA 589), further argues that in the settlement proceedings
of the estate of the deceased spouse, the entire conjugal partnership property of the marriage is
under administration. While such may be in a sense true, that fact alone is not sufficient to invalidate
the whole mortgage, willingly and voluntarily entered into by the petitioner. An opposite view would
result in an injustice. Under similar circumstances, this Court applied the provisions of Article 493 of
the Civil Code, where the heirs as co-owners shall each have the full ownership of his part and the
fruits and benefits pertaining thereto, and he may therefore alienate, assign or mortgage it, and even
effect of the alienation or mortgage, with respect to the co-owners, shall be limited to the portion
which may be allotted to him in the division upon the termination of the co-ownership (Philippine
National Bank vs. Court of Appeals, 98 SCRA 207 [1980]).
Consequently, in the case at bar, the trial court and the Court of Appeals cannot be faulted in ruling
that the questioned mortgage constituted on the property under administration, by authority of the
petitioner, is valid, notwithstanding the lack of judicial approval, with respect to her conjugal share
and to her hereditary rights. The fact that what had been mortgaged was in custodia legis is
immaterial, insofar as her conjugal share and hereditary share in the property is concerned for after
all, she was the ABSOLUTE OWNER thereof. This ownership by hers is not disputed, nor is there
any claim that the rights of the government (with reference to taxes) nor the rights of any heir or
anybody else have been prejudiced for impaired. As stated by Associate Justice (later Chief Justice)
Manuel Moran in Jakosalem vs. Rafols, et al., 73 Phil. 618
The land in question, described in the appealed decision, originally belonged to Juan
Melgar. The latter died and the judicial administration of his estate was commenced
in 1915 and came to a close on December 2, 1924, only. During the pendency of the
said administration, that is, on July 5, 1917, Susana Melgar, daughter of the
deceased Juan Melgar, sold the land with the right of repurchase to Pedro Cui,
subject to the stipulation that during the period for the repurchase she would continue
in possession of the land as lessee of the purchase. On December 12, 1920, the
partition of the estate left by the deceased Juan Melgar was made, and the land in
question was adjudicated to Susana Melgar. In 1921, she conveyed, in payment of
professional fees, one-half of the land in favor of the defendant-appellee Nicolas
Rafols, who entered upon the portion thus conveyed and has been in possession
thereof up to the present. On July 23, 1921, Pedro Cui brought an action to recover
said half of the land from Nicolas Rafols and the other half from the other defendants,
and while that case was pending, or about August 4, 1925, Pedro Cui donated the
whole land in question to Generosa Teves, the herein plaintiff-appellant, after trial,
the lower court rendered a decision absolving Nicolas Rafols as to the one-half of the
land conveyed to him by Susana Melgar, and declaring the plaintiff owner of the
other half by express acknowledgment of the other defendants. The plaintiff
appealed from that part of the judgment which is favorable to Nicolas Rafols.
The lower court absolved Nicolas Rafols upon the theory that Susana Melgar could
not have sold anything to Pedro Cui because the land was then in custodia legis, that
is, under judicial administration. This is error. That the land could not ordinary be
levied upon while in custodia legis,does not mean that one of the heirs may not sell

the right, interest or participation which he has or might have in the lands under
administration. The ordinary execution of property in custodia legis is prohibited in
order to avoid interference with the possession by the court. But the sale made by an
heir of his share in an inheritance, subject to the result of the pending administration,
in no wise stands in the way of such administration.
The reference to judicial approval in Sec. 7, Rule 89 of the Rules of Court cannot adversely affect
the substantiverights of private respondent to dispose of her Ideal [not inchoate, for the conjugal
partnership ended with her husband's death, and her hereditary rights accrued from the moment of
the death of the decedent (Art. 777, Civil Code) share in the co-heirship and/or co-ownership formed
between her and the other heirs/co-owners (See Art. 493, Civil Code, supra.). Sec. 7, Art. 89 of the
Civil Code applies in a case where judicial approval has to be sought in connection with, for
instance, the sale or mortgage of property under administration for the payment, say of a conjugal
debt, and even here, the conjugal and hereditary shares of the wife are excluded from the requisite
judicial approval for the reason already adverted to hereinabove, provided of course no prejudice is
caused others, including the government.
Moreover, petitioner is already estopped from questioning the mortgage. An estoppel may arise from
the making of a promise even though without consideration, if it was intended that the promise
should be relied upon and in fact it was relied upon, and if a refusal to enforce it would be virtually to
sanction the perpetration of fraud or would result in other injustice (Gonzalo Sy Trading vs. Central
Bank, 70 SCRA 570).
PREMISES CONSIDERED, the instant petition is hereby DENIED and the assailed decision of the
Court of Appeals is hereby AFFIRMED.
SO ORDERED.
Yap (Chairman), Melencio-Herrera, Padilla and Sarmiento, JJ., concur.

Footnotes
* Penned by Justice Leonor Ines Luciano, concurred in by Justices Ramon G.
Gaviola, Jr. and Ma. Rosario Quetulio-Losa.
SECOND DIVISION
G.R. No. 75884 September 24, 1987
JULITA GO ONG, FOR HERSELF AND AS JUDICIAL GUARDIAN OF STEVEN GO
ONG, petitioners,
vs.
THE HON. COURT OF APPEALS, ALLIED BANKING CORPORATION and the CITY SHERIFF
OF QUEZON CITY, respondents.

PARAS, J.:
This is a petition for review on certiorari of the March 21, 1986 Decision

* of the Court of Appeals in AC-G.R. CV

No. 02635, "Julita Ong etc. vs. Allied Banking Corp. et al." affirming, with modification, the January 5, 1984 Decision of the Regional Trial
Court of Quezon City in Civil Case No. Q-35230.

The uncontroverted facts of this case, as found by the Court of Appeals, are as follows:
...: Two (2) parcels of land in Quezon City Identified as Lot No. 12, Block 407, Psd
37326 with an area of 1960.6 sq. m. and Lot No. 1, Psd 15021, with an area of
3,660.8 sq. m. are covered by Transfer Certificate of Title No. 188705 in the name of
"Alfredo Ong Bio Hong married to Julita Go Ong "(Exh. D). Alfredo Ong Bio Hong
died on January 18, 1975 and Julita Go Ong was appointed administratrix of her
husband's estate in Civil Case No. 107089. The letters of administration was
registered on TCT No. 188705 on October 23, 1979. Thereafter, Julita Go Ong sold
Lot No. 12 to Lim Che Boon, and TCT No. 188705 was partially cancelled and TCT
No. 262852 was issued in favor of Lim Che Boon covering Lot No. 12 (Exh. D-4). On
June 8, 1981 Julita Go Ong through her attorney-in-fact Jovita K. Yeo (Exh. 1)
mortgaged Lot No. 1 to the Allied Banking Corporation to secure a loan of
P900,000.00 obtained by JK Exports, Inc. The mortgage was registered on TCT No.
188705 on the same date with the following notation: "... mortgagee's consent
necessary in case of subsequent alienation or encumbrance of the property other
conditions set forth in Doc. No. 340, Page No. 69, Book No. XIX, of the Not. Public of
Felixberto Abad". On the loan there was due the sum of P828,000.00 and Allied
Banking Corporation tried to collect it from Julita Go Ong, (Exh. E). Hence, the
complaint alleging nullity of the contract for lack of judicial approval which the bank
had allegedly promised to secure from the court. In response thereto, the bank
averred that it was plaintiff Julita Go Ong who promised to secure the court's
approval, adding that Julita Go Ong informed the defendant that she was processed
the sum of P300,000.00 by the JK Exports, Inc. which will also take charge of the
interest of the loan.
Concluding, the trial court ruled:
Absent (of) any evidence that the property in question is the capital of
the deceased husband brought into the marriage, said property
should be presumed as acquired during the marriage and, therefore,
conjugal property,
After the dissolution of the marriage with the death of plaintiff's
husband, the plaintiff acquired, by law, her conjugal share, together
with the hereditary rights thereon. (Margate vs. Rabacal, L-14302,
April 30, 1963). Consequently, the mortgage constituted on said
property, upon express authority of plaintiff, notwithstanding the lack
of judicial approval, is valid, with respect to her conjugal share
thereon, together with her hereditary rights.
On appeal by petitioner, respondent Court of Appeals affirmed, with modification, the appealed
decision (Record, pp. 19-22). The dispositive portion of the appellate court's decision reads:

WHEREFORE, with the modification that the extrajudicial foreclosure proceedings

instituted by defendant against plaintiff shall be held in abeyance to await the final
result of Civil Case No. 107089 of the Court of First Instance of Manila, 6th Judicial
District Branch XXXII, entitled "IN THE MATTER OF THE INTESTATE ESTATE OF
THE LATE ALFREDO ONG BIO: JULITA GO ONG, ADMINISTRATRIX". In
pursuance with which the restraining order of the lower court in this case restraining
the sale of the properties levied upon is hereby ordered to continue in full force and
effect coterminous with the final result of Civil Case No. 107089, the decision
appealed from is hereby affirmed. Costs against plaintiff-appellant.
SO ORDERED.
On April 8, 1986, petitioner moved for the reconsideration of the said decision (Ibid., pp. 24-29), but
in a Resolution dated September 11, 1986, respondent court denied the motion for lack of merit
(Ibid., p. 23). Hence, the instant petition (Ibid., pp. 6-17).
The Second Division of this Court, in a Resolution dated November 19, 1986 (Rollo, p. 30), without
giving due course to the petition, resolved to require private respondent to comment thereon and it
did on February 19, 1987 (Ibid., pp. 37-42). Thereafter, in a Resolution dated April 6, 1987, the
petition was given due course and the parties were required to file their respective memoranda
(Ibid., p. 43).
Petitioner filed her Memorandum on May 13, 1987 (Ibid., pp. 45-56), while private respondent filed
its Memorandum on May 20, 1987 (Ibid., pp. 62-68).
The sole issue in this case is
WHETHER OR NOT THE MORTGAGE CONSTITUTED OVER THE PARCEL OF LAND UNDER
PETITIONER'S ADMINISTRATION IS NULL AND VOID FOR WANT OF JUDICIAL APPROVAL.
The instant petition is devoid of merit.
The well-settled rule that the findings of fact of the trial court are entitled to great respect, carries
even more weight when affirmed by the Court of Appeals as in the case at bar.
In brief, the lower court found: (1) that the property under the administration of petitioner the wife
of the deceased, is a community property and not the separate property of the latter; (2) that the
mortgage was constituted in the wife's personal capacity and not in her capacity as administratrix;
and (3) that the mortgage affects the wife's share in the community property and her inheritance in
the estate of her husband.
Petitioner, asserting that the mortgage is void for want of judicial approval, quoted Section 7 of Rule
89 of the Rules of Court and cited several cases wherein this Court ruled that the regulations
provided in the said section are mandatory.
While petitioner's assertion may have merit insofar as the rest of the estate of her husband is
concerned the same is not true as regards her conjugal share and her hereditary rights in the estate.
The records show that petitioner willingly and voluntarily mortgaged the property in question

because she was processed by JK Exports, Inc. the sum of P300,000.00 from the proceeds of the
loan; and that at the time she executed the real estate mortgage, there was no court order
authorizing the mortgage, so she took it upon herself, to secure an order.
Thus, in confirming the findings of the lower court, as supported by law and the evidence, the Court
of Appeals aptly ruled that Section 7 of Rule 89 of the Rules of Court is not applicable, since the
mortgage was constituted in her personal capacity and not in her capacity as administratrix of the
estate of her husband.
Nevertheless, petitioner, citing the cases of Picardal, et al. vs. Lladas (21 SCRA 1483)
and Fernandez, et al. vs. Maravilla (10 SCRA 589), further argues that in the settlement proceedings
of the estate of the deceased spouse, the entire conjugal partnership property of the marriage is
under administration. While such may be in a sense true, that fact alone is not sufficient to invalidate
the whole mortgage, willingly and voluntarily entered into by the petitioner. An opposite view would
result in an injustice. Under similar circumstances, this Court applied the provisions of Article 493 of
the Civil Code, where the heirs as co-owners shall each have the full ownership of his part and the
fruits and benefits pertaining thereto, and he may therefore alienate, assign or mortgage it, and even
effect of the alienation or mortgage, with respect to the co-owners, shall be limited to the portion
which may be allotted to him in the division upon the termination of the co-ownership (Philippine
National Bank vs. Court of Appeals, 98 SCRA 207 [1980]).
Consequently, in the case at bar, the trial court and the Court of Appeals cannot be faulted in ruling
that the questioned mortgage constituted on the property under administration, by authority of the
petitioner, is valid, notwithstanding the lack of judicial approval, with respect to her conjugal share
and to her hereditary rights. The fact that what had been mortgaged was in custodia legis is
immaterial, insofar as her conjugal share and hereditary share in the property is concerned for after
all, she was the ABSOLUTE OWNER thereof. This ownership by hers is not disputed, nor is there
any claim that the rights of the government (with reference to taxes) nor the rights of any heir or
anybody else have been prejudiced for impaired. As stated by Associate Justice (later Chief Justice)
Manuel Moran in Jakosalem vs. Rafols, et al., 73 Phil. 618
The land in question, described in the appealed decision, originally belonged to Juan
Melgar. The latter died and the judicial administration of his estate was commenced
in 1915 and came to a close on December 2, 1924, only. During the pendency of the
said administration, that is, on July 5, 1917, Susana Melgar, daughter of the
deceased Juan Melgar, sold the land with the right of repurchase to Pedro Cui,
subject to the stipulation that during the period for the repurchase she would continue
in possession of the land as lessee of the purchase. On December 12, 1920, the
partition of the estate left by the deceased Juan Melgar was made, and the land in
question was adjudicated to Susana Melgar. In 1921, she conveyed, in payment of
professional fees, one-half of the land in favor of the defendant-appellee Nicolas
Rafols, who entered upon the portion thus conveyed and has been in possession
thereof up to the present. On July 23, 1921, Pedro Cui brought an action to recover
said half of the land from Nicolas Rafols and the other half from the other defendants,
and while that case was pending, or about August 4, 1925, Pedro Cui donated the
whole land in question to Generosa Teves, the herein plaintiff-appellant, after trial,
the lower court rendered a decision absolving Nicolas Rafols as to the one-half of the
land conveyed to him by Susana Melgar, and declaring the plaintiff owner of the

other half by express acknowledgment of the other defendants. The plaintiff

appealed from that part of the judgment which is favorable to Nicolas Rafols.
The lower court absolved Nicolas Rafols upon the theory that Susana Melgar could
not have sold anything to Pedro Cui because the land was then in custodia legis, that
is, under judicial administration. This is error. That the land could not ordinary be
levied upon while in custodia legis,does not mean that one of the heirs may not sell
the right, interest or participation which he has or might have in the lands under
administration. The ordinary execution of property in custodia legis is prohibited in
order to avoid interference with the possession by the court. But the sale made by an
heir of his share in an inheritance, subject to the result of the pending administration,
in no wise stands in the way of such administration.
The reference to judicial approval in Sec. 7, Rule 89 of the Rules of Court cannot adversely affect
the substantiverights of private respondent to dispose of her Ideal [not inchoate, for the conjugal
partnership ended with her husband's death, and her hereditary rights accrued from the moment of
the death of the decedent (Art. 777, Civil Code) share in the co-heirship and/or co-ownership formed
between her and the other heirs/co-owners (See Art. 493, Civil Code, supra.). Sec. 7, Art. 89 of the
Civil Code applies in a case where judicial approval has to be sought in connection with, for
instance, the sale or mortgage of property under administration for the payment, say of a conjugal
debt, and even here, the conjugal and hereditary shares of the wife are excluded from the requisite
judicial approval for the reason already adverted to hereinabove, provided of course no prejudice is
caused others, including the government.
Moreover, petitioner is already estopped from questioning the mortgage. An estoppel may arise from
the making of a promise even though without consideration, if it was intended that the promise
should be relied upon and in fact it was relied upon, and if a refusal to enforce it would be virtually to
sanction the perpetration of fraud or would result in other injustice (Gonzalo Sy Trading vs. Central
Bank, 70 SCRA 570).
PREMISES CONSIDERED, the instant petition is hereby DENIED and the assailed decision of the
Court of Appeals is hereby AFFIRMED.
SO ORDERED.
Yap (Chairman), Melencio-Herrera, Padilla and Sarmiento, JJ., concur.

Footnotes
* Penned by Justice Leonor Ines Luciano, concurred in by Justices Ramon G.
Gaviola, Jr. and Ma. Rosario Quetulio-Losa.
FIRST DIVISION
G.R. No. L-58509 December 7, 1982

IN THE MATTER OF THE PETITION TO APPROVE THE WILL OF RICARDO B. BONILLA

deceased, MARCELA RODELAS, petitioner-appellant,
vs.
AMPARO ARANZA, ET AL., oppositors-appellees, ATTY. LORENZO SUMULONG, intervenor.
Luciano A. Joson for petitioner-appellant.
Cesar Paralejo for oppositor-appellee.

RELOVA, J.:
This case was certified to this Tribunal by the Court of Appeals for final determination pursuant to
Section 3, Rule 50 of the Rules of Court.
As found by the Court of Appeals:
... On January 11, 1977, appellant filed a petition with the Court of First Instance of
Rizal for the probate of the holographic will of Ricardo B. Bonilla and the issuance of
letters testamentary in her favor. The petition, docketed as Sp. Proc. No. 8432, was
opposed by the appellees Amparo Aranza Bonilla, Wilferine Bonilla Treyes Expedita
Bonilla Frias and Ephraim Bonilla on the following grounds:
(1) Appellant 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 alleged copy of the alleged holographic will did not contain a disposition of
property after death and was not intended to take effect after death, and therefore it
was not a will
(3) The alleged hollographic will itself,and not an alleged copy thereof, must be
produced, otherwise it would produce no effect, as held in Gam v. Yap, 104 Phil. 509;
and
(4 ) The deceased did not leave any will, holographic or otherwise, executed and
attested as required by law.
The appellees likewise moved for the consolidation of the case with another case Sp.
Proc. No, 8275). Their motion was granted by the court in an order dated April 4,
1977.
On November 13, 1978, following the consolidation of the cases, the appellees
moved again to dismiss the petition for the probate of the will. They argued that:
(1) The alleged holographic was not a last will but merely an instruction as to the
management and improvement of the schools and colleges founded by decedent
Ricardo B. Bonilla; and

(2) Lost or destroyed holographic wills cannot be proved by secondary evidence

unlike ordinary wills.
Upon opposition of the appellant, the motion to dismiss was denied by the court in its
order of February 23, 1979.
The appellees then filed a motion for reconsideration on the ground that the order
was contrary to law and settled pronouncements and rulings of the Supreme Court,
to which the appellant in turn filed an opposition. On July 23, 1979, the court set
aside its order of February 23, 1979 and dismissed the petition for the probate of the
will of Ricardo B. Bonilla. The court said:
... It is our considered opinion that once the original copy of the holographic will is
lost, a copy thereof cannot stand in lieu of the original.
In the case of Gam vs. Yap, 104 Phil. 509, 522, the Supreme Court held that 'in the
matter of holographic wills the law, it is reasonable to suppose, regards the document
itself as the material proof of authenticity of said wills.
MOREOVER, this Court notes that the alleged holographic will was executed on
January 25, 1962 while Ricardo B. Bonilla died on May 13, 1976. In view of the lapse
of more than 14 years from the time of the execution of the will to the death of the
decedent, the fact that the original of the will could not be located shows to our mind
that the decedent had discarded before his death his allegedly missing Holographic
Will.
Appellant's motion for reconsideration was denied. Hence, an appeal to the Court of Appeals in
which it is contended that the dismissal of appellant's petition is contrary to law and well-settled
jurisprudence.
On July 7, 1980, appellees moved to forward the case to this Court on the ground that the appeal
does not involve question of fact and alleged that the trial court committed the following assigned
errors:
I. THE LOWER COURT ERRED IN HOLDING THAT A LOST HOLOGRAPHIC WILL
MAY NOT BE PROVED BY A COPY THEREOF;
II. THE LOWER COURT ERRED IN HOLDING THAT THE DECEDENT HAS
DISCARDED BEFORE HIS DEATH THE MISSING HOLOGRAPHIC WILL;
III. THE LOWER COURT ERRED IN DISMISSING APPELLANT'S WILL.
The only question here is whether a holographic will which was lost or cannot be found can be
proved by means of a photostatic copy. Pursuant to Article 811 of the Civil Code, probate of
holographic wills is the allowance of the will by the court after its due execution has been proved.
The probate may be uncontested or not. If uncontested, at least one Identifying witness is required
and, if no witness is available, experts may be resorted to. If contested, at least three Identifying
witnesses are required. However, if the holographic will has been lost or destroyed and no other
copy is available, the will can not be probated because the best and only evidence is the handwriting
of the testator in said will. It is necessary that there be a comparison between sample handwritten
statements of the testator and the handwritten will. But, a photostatic copy or xerox copy of the

holographic will may be allowed because comparison can be made with the standard writings of the
testator. In the case of Gam vs. Yap, 104 PHIL. 509, the Court ruled that "the execution and the
contents of a lost or destroyed holographic will may not be proved by the bare testimony of
witnesses who have seen and/or read such will. The will itself must be presented; otherwise, it shall
produce no effect. The law regards the document itself as material proof of authenticity." But, in
Footnote 8 of said decision, it says that "Perhaps it may be proved by a photographic or photostatic
copy. Even a mimeographed or carbon copy; or by other similar means, if any, whereby the
authenticity of the handwriting of the deceased may be exhibited and tested before the probate
court," Evidently, the photostatic or xerox copy of the lost or destroyed holographic will may be
admitted because then the authenticity of the handwriting of the deceased can be determined by the
probate court.
WHEREFORE, the order of the lower court dated October 3, 1979, denying appellant's motion for
reconsideration dated August 9, 1979, of the Order dated July 23, 1979, dismissing her petition to
approve the will of the late Ricardo B. Bonilla, is hereby SET ASIDE.
SO ORDERED.
Teehankee, Actg. C.J., Melencio-Herrera, Plana, Vasquez and Gutierrez, Jr., JJ., concur.

The Lawphil Project - Arellano Law

EN BANC
G.R. No. L-24561 June 30, 1970
MARINA DIZON-RIVERA, executrix-appellee,
vs.
ESTELA DIZON, TOMAS V. DIZON, BERNARDITA DIZON, JOSEFINA DIZON, ANGELINA DIZON
and LILIA DIZON, oppositors-appellants.
Punzalan, Yabut & Eusebio for executrix-appellee.
Leonardo Abola for oppositors-appellants.

TEEHANKEE, J.:
Appeal from orders of the Court of First Instance of Pampanga approving the Executrix-appellee's
project of partition instead of Oppositors-Appellants' proposed counter-project of partition. 1
On January 28, 1961, the testatrix, Agripina J. Valdez, a widow, died in Angeles, Pampanga, and
was survived by seven compulsory heirs, to wit, six legitimate children named Estela Dizon, Tomas
V. Dizon, Bernardita Dizon, Marina Dizon (herein executrix-appellee), Angelina Dizon and Josefina
Dizon, and a legitimate granddaughter named Lilia Dizon, who is the only legitimate child and heir of

Ramon Dizon, a pre-deceased legitimate son of the said decedent. Six of these seven compulsory
heirs (except Marina Dizon, the executrix-appellee) are the oppositors-appellants.
The deceased testatrix left a last will executed on February 2, 1960 and written in the Pampango
dialect. Named beneficiaries in her will were the above-named compulsory heirs, together with
seven other legitimate grandchildren, namely Pablo Rivera, Jr., Gilbert D. Garcia, Cayetano Dizon,
Francisco Rivera, Agripina Ayson, Jolly Jimenez and Laureano Tiambon.
In her will, the testatrix divided, distributed and disposed of all her properties appraised at
P1,801,960.00 (except two small parcels of land appraised at P5,849.60, household furniture valued
at P2,500.00, a bank deposit in the sum of P409.95 and ten shares of Pampanga Sugar
Development Company valued at P350.00) among her above-named heirs.
Testate proceedings were in due course commenced 2 and by order dated March 13, 1961, the last will
and testament of the decedent was duly allowed and admitted to probate, and the appellee Marina DizonRivera was appointed executrix of the testatrix' estate, and upon her filing her bond and oath of office,
letters testamentary were duly issued to her.
After the executrix filed her inventory of the estate, Dr. Adelaido Bernardo of Angeles, Pampanga
was appointed commissioner to appraise the properties of the estate. He filed in due course his
report of appraisal and the same was approved in toto by the lower court on December 12, 1963
upon joint petition of the parties.
The real and personal properties of the testatrix at the time of her death thus had a total appraised
value of P1,811,695.60, and the legitime of each of the seven compulsory heirs amounted to
P129,362.11. 3 (/7 of the half of the estate reserved for the legitime of legitimate children and descendants). 4 In her will, the
testatrix "commanded that her property be divided" in accordance with her testamentary disposition,
whereby she devised and bequeathed specific real properties comprising practically the entire bulk of her
estate among her six children and eight grandchildren. The appraised values of the real properties thus
respectively devised by the testatrix to the beneficiaries named in her will, are as follows:
1. Estela Dizon ....................................... P 98,474.80
2. Angelina Dizon .................................. 106,307.06
3. Bernardita Dizon .................................. 51,968.17
4. Josefina Dizon ...................................... 52,056.39
5. Tomas Dizon ....................................... 131,987.41
6. Lilia Dizon .............................................. 72,182.47
7. Marina Dizon ..................................... 1,148,063.71
8. Pablo Rivera, Jr. ...................................... 69,280.00
9. Lilia Dizon, Gilbert Garcia,
Cayetano Dizon, Francisco Rivera,
Agripina Ayson, Dioli or Jolly
Jimenez, Laureano Tiamzon ................. 72,540.00
Total Value ...................... P1,801,960.01
The executrix filed her project of partition dated February 5, 1964, in substance adjudicating the
estate as follows:

(1) with the figure of P129,254.96 as legitime for a basis Marina (exacultrix-appellee)
and Tomas (appellant) are admittedly considered to have received in the will more
than their respective legitime, while the rest of the appellants, namely, Estela,
Bernardita, Angelina, Josefina and Lilia received less than their respective legitime;
(2) thus, to each of the latter are adjudicated the properties respectively given them
in the will, plus cash and/or properties, to complete their respective legitimes to
P129,254.96; (3) on the other hand, Marina and Tomas are adjudicated the
properties that they received in the will less the cash and/or properties necessary to
complete the prejudiced legitime mentioned in number 2 above;
(4) the adjudications made in the will in favor of the grandchildren remain untouched.
an1w>

On the other hand oppositors submitted their own counter-project of partition dated
February 14, 1964, wherein they proposed the distribution of the estate on the
following basis:
(a) all the testamentary dispositions were proportionally reduced to the value of onehalf () of the entire estate, the value of the said one-half () amounting to
P905,534.78; (b) the shares of the Oppositors-Appellants should consist of their
legitime, plus the devises in their favor proportionally reduced; (c) in payment of the
total shares of the appellants in the entire estate, the properties devised to them plus
other properties left by the Testatrix and/or cash are adjudicated to them; and (d) to
the grandchildren who are not compulsory heirs are adjudicated the properties
respectively devised to them subject to reimbursement by Gilbert D. Garcia, et al., of
the sums by which the devise in their favor should be proportionally reduced.
Under the oppositors' counter-project of partition, the testamentary disposition made by the testatrix
of practically her whole estate of P1,801,960.01, as above stated, were proposed to be reduced to
the amounts set forth after the names of the respective heirs and devisees totalling one-half thereof
as follows:
1. Estela Dizon ........................................... P 49,485.56
2. Angelina Dizon ......................................... 53,421.42
3. Bernardita Dizon ....................................... 26,115.04
4. Josefina Dizon .......................................... 26,159.38
5. Tomas V. Dizon ......................................... 65,874.04
6. Lilia Dizon .................................................. 36,273.13
7. Marina Dizon ........................................... 576,938.82
8. Pablo Rivera, Jr. ......................................... 34,814.50
9. Grandchildren Gilbert Garcia et al .......... 36,452.80
T o t a l ................................................... P905,534.78
while the other half of the estate (P905,534.78) would be deemed as constituting the legitime of the
executrix-appellee and oppositors-appellants, to be divided among them in seven equal parts of
P129,362.11 as their respective legitimes.

<re||

The lower court, after hearing, sustained and approved the executrix' project of partition, ruling that
"(A)rticles 906 and 907 of the New Civil Code specifically provide that when the legitime is impaired
or prejudiced, the same shall be completed and satisfied. While it is true that this process has been
followed and adhered to in the two projects of partition, it is observed that the executrix and the
oppositors differ in respect to the source from which the portion or portions shall be taken in order to
fully restore the impaired legitime. The proposition of the oppositors, if upheld, will substantially
result in a distribution of intestacy, which is in controversion of Article 791 of the New Civil Code"
adding that "the testatrix has chosen to favor certain heirs in her will for reasons of her own, cannot
be doubted. This is legally permissible within the limitation of the law, as aforecited." With reference
to the payment in cash of some P230,552.38, principally by the executrix as the largest beneficiary
of the will to be paid to her five co-heirs, the oppositors (excluding Tomas Dizon), to complete their
impaired legitimes, the lower court ruled that "(T)he payment in cash so as to make the proper
adjustment to meet with the requirements of the law in respect to legitimes which have been
impaired is, in our opinion, a practical and valid solution in order to give effect to the last wishes of
the testatrix."
From the lower court's orders of approval, oppositors-appellants have filed this appeal, and raise
anew the following issues: .
1. Whether or not the testamentary dispositions made in the testatrix' will are in the nature of devises
imputable to the free portion of her estate, and therefore subject to reduction;
2. Whether the appellants are entitled to the devise plus their legitime under Article 1063, or merely
to demand completion of their legitime under Article 906 of the Civil Code; and
3. Whether the appellants may be compelled to accept payment in cash on account of their legitime,
instead of some of the real properties left by the Testatrix;
which were adversely decided against them in the proceedings below.
The issues raised present a matter of determining the avowed intention of the testatrix which is "the
life and soul of a will." 5 In consonance therewith, our Civil Code included the new provisions found in
Articles 788 and 791 thereof that "(I)f a testamentary disposition admits of different interpretations, in case
of doubt, that interpretation by which the disposition is to be operative shall be preferred" and "(T)he
words of a will are to receive an interpretation which will give to every expression some effect, rather than
one which will render any of the expressions inoperative; and of two modes of interpreting a will, that is to
be preferred which will prevent intestacy." In Villanueva vs. Juico 6 for violation of these rules of
interpretation as well as of Rule 123, section 59 of the old Rules of Court, 7 the Court, speaking through Mr. Justice
J.B.L. Reyes, overturned the lower court's decision and stressed that "the intention and wishes of the testator, when clearly expressed in his
will, constitute the fixed law of interpretation, and all questions raised at the trial, relative to its execution and fulfillment, must be settled in
accordance therewith, following the plain and literal meaning of the testator's words, unless it clearly appears that his intention was
otherwise." 8

The testator's wishes and intention constitute the first and principal law in the matter of testaments,
and to paraphrase an early decision of the Supreme Court of Spain, 9 when expressed clearly and precisely in his
last will amount to the only law whose mandate must imperatively be faithfully obeyed and complied with by his executors, heirs and
devisees and legatees, and neither these interested parties nor the courts may substitute their own criterion for the testator's will. Guided and
restricted by these fundamental premises, the Court finds for the appellee.

1. Decisive of the issues at bar is the fact that the testatrix' testamentary disposition was in the
nature of a partition of her estate by will. Thus, in the third paragraph of her will, after commanding

that upon her death all her obligations as well as the expenses of her last illness and funeral and the
expenses for probate of her last will and for the administration of her property in accordance with
law, be paid, she expressly provided that "it is my wish and I command that my property be divided"
in accordance with the dispositions immediately thereafter following, whereby she specified each
real property in her estate and designated the particular heir among her seven compulsory heirs and
seven other grandchildren to whom she bequeathed the same. This was a valid partition 10 of her
estate, as contemplated and authorized in the first paragraph of Article 1080 of the Civil Code, providing
that "(S)hould a person make a partition of his estate by an act inter vivos or by will, such partition shall
be respected, insofar as it does not prejudice the legitime of the compulsory heirs." This right of a testator
to partition his estate is subject only to the right of compulsory heirs to their legitime. The Civil Code thus
provides the safeguard for the right of such compulsory heirs:
ART. 906. Any compulsory heir to whom the testator has left by any title less than the
legitime belonging to him may demand that the same be fully satisfied.
ART. 907. Testamentary dispositions that impair or diminish the legitime of the
compulsory heirs shall be reduced on petition of the same, insofar as they may be
inofficious or excessive.
This was properly complied with in the executrix-appellee's project of partition,
wherein the five oppositors-appellants namely Estela, Bernardita, Angelina, Josefina
and Lilia, were adjudicated the properties respectively distributed and assigned to
them by the testatrix in her will, and the differential to complete their respective
legitimes of P129,362.11 each were taken from the cash and/or properties of the
executrix-appellee, Marina, and their co-oppositor-appellant, Tomas, who admittedly
were favored by the testatrix and received in the partition by will more than their
respective legitimes.
2. This right of a testator to partition his estate by will was recognized even in Article 1056 of the old
Civil Code which has been reproduced now as Article 1080 of the present Civil Code. The only
amendment in the provision was that Article 1080 "now permits any person (not a testator, as under
the old law) to partition his estate by actinter vivos." 11 This was intended to repeal the then prevailing
doctrine 12 that for a testator to partition his estate by an actinter vivos, he must first make a will with all
the formalities provided by law. Authoritative commentators doubt the efficacy of the amendment 13 but the
question does not here concern us, for this is a clear case of partition by will, duly admitted to probate,
which perforce must be given full validity and effect. Aside from the provisions of Articles 906 and 907
above quoted, other codal provisions support the executrix-appellee's project of partition as approved by
the lower court rather than the counter-project of partition proposed by oppositors-appellants whereby
they would reduce the testamentary disposition or partition made by the testatrix to one-half and limit the
same, which they would consider as mere devises or legacies, to one-half of the estate as the disposable
free portion, and apply the other half of the estate to payment of the legitimes of the seven compulsory
heirs. Oppositors' proposal would amount substantially to a distribution by intestacy and pro tanto nullify
the testatrix' will, contrary to Article 791 of the Civil Code. It would further run counter to the provisions of
Article 1091 of the Civil Code that "(A) partition legally made confers upon each heir the exclusive
ownership of the property adjudicated to him."
3. In Habana vs. Imbo, 14 the Court upheld the distribution made in the will of the deceased testator
Pedro Teves of two large coconut plantations in favor of his daughter, Concepcion, as against adverse
claims of other compulsory heirs, as being a partition by will, which should be respected insofar as it does
not prejudice the legitime of the compulsory heirs, in accordance with Article 1080 of the Civil Code. In

upholding the sale made by Concepcion to a stranger of the plantations thus partitioned in her favor in the
deceased's will which was being questioned by the other compulsory heirs, the Court ruled that
"Concepcion Teves by operation of law, became the absolute owner of said lots because 'A partition
legally made confers upon each heir the exclusive ownership of the property adjudicated to him' (Article
1091, New Civil Code), from the death of her ancestors, subject to rights and obligations of the latter, and,
she can not be deprived of her rights thereto except by the methods provided for by law (Arts. 657, 659,
and 661, Civil Code). 15 Concepcion Teves could, as she did, sell the lots in question as part of her share
of the proposed partition of the properties, especially when, as in the present case, the sale has been
expressly recognized by herself and her co-heirs ..."

4. The burden of oppositors' contention is that the testamentary dispositions in their favor are in the
nature of devises of real property, citing the testatrix' repeated use of the words "I bequeath" in her
assignment or distribution of her real properties to the respective heirs. From this erroneous
premise, they proceed to the equally erroneous conclusion that "the legitime of the compulsory heirs
passes to them by operation of law and that the testator can only dispose of the free portion, that is,
the remainder of the estate after deducting the legitime of the compulsory heirs ... and all
testamentary dispositions, either in the nature of institution of heirs or of devises or legacies, have to
be taken from the remainder of the testator's estate constituting the free portion." 16
Oppositors err in their premises, for the adjudications and assignments in the testatrix' will of specific
properties to specific heirs cannot be considered all devises, for it clearly appear from the whole
context of the will and the disposition by the testatrix of her whole estate (save for some small
properties of little value already noted at the beginning of this opinion) that her clear intention was to
partition her whole estate through her will. The repeated use of the words "I bequeath" in her
testamentary dispositions acquire no legal significance, such as to convert the same into devises to
be taken solely from the free one-half disposable portion of the estate. Furthermore, the testatrix'
intent that her testamentary dispositions were by way of adjudications to the beneficiaries as heirs
and not as mere devisees, and that said dispositions were therefore on account of the respective
legitimes of the compulsory heirs is expressly borne out in the fourth paragraph of her will,
immediately following her testamentary adjudications in the third paragraph in this wise: "FOURTH: I
likewise command that in case any of those I named as my heirs in this testament any of them shall
die before I do, his forced heirs under the law enforced at the time of my death shall inherit the
properties I bequeath to said deceased." 17
Oppositors' conclusions necessarily are in error. The testamentary dispositions of the testatrix, being
dispositions in favor of compulsory heirs, do not have to be taken only from the free portion of the
estate, as contended, for the second paragraph of Article 842 of the Civil Code precisely provides
that "(O)ne who has compulsory heirsmay dispose of his estate provided he does not contravene the
provisions of this Code with regard to the legitime of said heirs." And even going by oppositors' own
theory of bequests, the second paragraph of Article 912 Civil Code covers precisely the case of the
executrix-appellee, who admittedly was favored by the testatrix with the large bulk of her estate in
providing that "(T)he devisee who is entitled to a legitime may retain the entire property,provided its
value does not exceed that of the disposable portion and of the share pertaining to him as legitime."
For "diversity of apportionment is the usual reason for making a testament; otherwise, the decedent
might as well die intestate." 18 Fundamentally, of course, the dispositions by the testatrix constituted
a partition by will, which by mandate of Article 1080 of the Civil Code and of the other cited codal
provisions upholding the primacy of the testator's last will and testament, have to be respected
insofar as they do not prejudice the legitime of the other compulsory heirs.

Oppositors' invoking of Article 1063 of the Civil Code that "(P)roperty left by will is not deemed
subject to collation, if the testator has not otherwise provided, but the legitime shall in any case
remain unimpaired" and invoking of the construction thereof given by some authorities that "'not
deemed subject to collation' in this article really means not imputable to or chargeable against the
legitime", while it may have some plausibility 19 in an appropriate case, has no application in the present
case. Here, we have a case of a distribution and partition of the entire estate by the testatrix, without her
having made any previous donations during her lifetime which would require collation to determine the
legitime of each heir nor having left merely some properties by will which would call for the application of
Articles 1061 to 1063 of the Civil Code on collation. The amount of the legitime of the heirs is here
determined and undisputed.
5. With this resolution of the decisive issue raised by oppositors-appellants, the secondary issues
are likewise necessarily resolved. Their right was merely to demand completion of their legitime
under Article 906 of the Civil Code and this has been complied with in the approved project of
partition, and they can no longer demand a further share from the remaining portion of the estate, as
bequeathed and partitioned by the testatrix principally to the executrix-appellee.
Neither may the appellants legally insist on their legitime being completed with real properties of the
estate instead of being paid in cash, per the approved project of partition. The properties are not
available for the purpose, as the testatrix had specifically partitioned and distributed them to her
heirs, and the heirs are called upon, as far as feasible to comply with and give effect to the intention
of the testatrix as solemnized in her will, by implementing her manifest wish of transmitting the real
properties intact to her named beneficiaries, principally the executrix-appellee. The appraisal report
of the properties of the estate as filed by the commissioner appointed by the lower court was
approved in toto upon joint petition of the parties, and hence, there cannot be said to be any
question and none is presented as to fairness of the valuation thereof or that the legitime of the
heirs in terms of cash has been understated. The plaint of oppositors that the purchasing value of
the Philippine peso has greatly declined since the testatrix' death in January, 1961 provides no legal
basis or justification for overturning the wishes and intent of the testatrix. The transmission of rights
to the succession are transmitted from the moment of death of the decedent (Article 777, Civil Code)
and accordingly, the value thereof must be reckoned as of then, as otherwise, estates would never
be settled if there were to be a revaluation with every subsequent fluctuation in the values of the
currency and properties of the estate. There is evidence in the record that prior to November 25,
1964, one of the oppositors, Bernardita, accepted the sum of P50,000.00 on account of her
inheritance, which, per the parties' manifestation, 20 "does not in any way affect the adjudication made
to her in the projects of partition of either party as the same is a mere advance of the cash that she should
receive in both projects of partition." The payment in cash by way of making the proper adjustments in
order to meet the requirements of the law on non-impairment of legitimes as well as to give effect to the
last will of the testatrix has invariably been availed of and sanctioned. 21 That her co-oppositors would
receive their cash differentials only now when the value of the currency has declined further, whereas
they could have received them earlier, like Bernardita, at the time of approval of the project of partition
and when the peso's purchasing value was higher, is due to their own decision of pursuing the present
appeal.
ACCORDINGLY, the orders appealed from are hereby affirmed. Without cost.
Concepcion, C.J., Reyes, J.B.L., Dizon, Makalintal, Zaldivar, Castro, Fernando, Barredo and
Villamor, JJ., concur.

# Footnotes
1 Appeal was directed to this Court, as the value of the estate exceeded
P200,000.00, in accordance with the then subsisting provisions of Sec. 17, third
paragraph, subsec. 5, now eliminated by Rep. Act 5440 enacted on Sept. 9, 1968.

Blas et al vs Santos et al
July 2, 2012
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1 SCRA 899 Succession Promise

Sometime before 1898, Simeon Blas married Marta Cruz with whom he had three children.
He also had grandchildren from his children with Marta Cruz. In 1898, Marta Cruz died. In
1899, Blas married Maxima Santos (they had no children) but the properties he and his
former wife acquired during the first marriage were not liquidated.
In 1936, Simeon Blas executed a will disposing half of his properties in favor of Maxima the
other half for payment of debts, Blas also named a few devisees and legatees therein. In
lieu of this, Maxima executed a document whereby she intimated that she understands the
will of her husband; that she promises that shell be giving, upon her death, one-half of the

properties shell be acquiring to the heirs and legatees named in the will of his husband; that
she can select or choose any of them depending upon the respect, service, and treatment
accorded to her by said legatees/heirs/devisees.
In 1937, Simeon Blas died. In 1956, Maxima died and Rosalina Santos became
administratrix of her estate. In the same year, Maria Gervacio Blas, child of Simeon Blas in
his first marriage, together with three other grandchildren of Simeon Blas (heirs of Simeon
Blas), learned that Maxima did not fulfill her promise as it was learned that Maxima only
disposed not even one-tenth of the properties she acquired from Simeon Blas.
The heirs are now contending that they did not partition Simeon Blas property precisely
because Maxima promised that theyll be receiving properties upon her death.
ISSUE: Whether or not the heirs should receive properties based on the promise of
Maxima.
HELD: Yes. The promise is valid and enforceable upon her death. Though it is not a will (it
lacks the formality) nor a donation, it is still enforceable because said promise was actually
executed to avoid litigation (partition of Simeon Blas estate) hence it is a compromise.
It is not disputed that this document was prepared at the instance of Simeon Blas for the
reason that the conjugal properties of his first marriage had not been liquidated. It is an
obligation or promise made by the maker to transmit one-half of her share in the conjugal
properties acquired with her husband, which properties are stated or declared to be
conjugal properties in the will of the husband.
Justice Bautista Angelo, dissenting:
It should be noted that Maxima Santos promise to transmit is predicated on the condition
that she can freely choose and select from among the heirs and legatees of her husband
those to whom she would like to give and bequeath depending on the respect, service and
companionship that they may render to her. Her commitment is not an absolute promise to
give to all but only to whom she may choose and select. And here this promise has been
substantially complied with when she disposed one-tenth of the property to some legatees
named in Simeons will.

THIRD DIVISION

CELESTINO BALUS,

G.R. No. 168970

Petitioner,
Present:
CORONA, J., Chairperson,
- versus -

VELASCO, JR.,
NACHURA,
PERALTA, and
MENDOZA, JJ.

SATURNINO
BALUS andLEONARDA BALUS
VDA. DE CALUNOD,

Promulgated:

Respondents.

January 15, 2010

x----------------------------------------------------------------------------------------x

DECISION

PERALTA, J.:

Assailed in the present petition for review on certiorari under Rule

45 of the Rules of Court is the Decision [1] of the Court of Appeals
(CA) dated May 31, 2005 in CA-G.R. CV No. 58041 which set aside

the February 7, 1997 Decision of the Regional Trial Court (RTC) of

Lanao del Norte, Branch 4 in Civil Case No. 3263.

The facts of the case are as follows:

Herein petitioner and respondents are the children of the spouses
Rufo and Sebastiana Balus. Sebastiana died on September 6,
1978, while Rufo died on July 6, 1984.
On January 3, 1979, Rufo mortgaged a parcel of land, which he
owns, as security for a loan he obtained from the Rural Bank of
Maigo, Lanao del Norte (Bank). The said property was originally
covered by Original Certificate of Title No. P-439(788) and more
particularly described as follows:

A parcel of land with all the improvements thereon,

containing an area of 3.0740 hectares, more or less,
situated in the Barrio of Lagundang, Bunawan, Iligan City,
and bounded as follows: Bounded on the NE., along line 12, by Lot 5122, Csd-292; along line 2-12, by Dodiongan
River; along line 12-13 by Lot 4649, Csd-292; and along
line 12-1, by Lot 4661, Csd-292. x x x [2]

Rufo failed to pay his loan. As a result, the mortgaged property

was foreclosed and was subsequently sold to the Bank as the sole
bidder at a public auction held for that purpose.On November 20,
1981, a Certificate of Sale[3] was executed by the sheriff in favor
of the Bank. The property was not redeemed within the period
allowed by law. More than two years after the auction, or
on January 25, 1984, the sheriff executed a Definite Deed of

Sale[4] in the Bank's favor. Thereafter, a new title was issued in the
name of the Bank.

On October 10, 1989, herein petitioner and respondents executed

an Extrajudicial Settlement of Estate [5] adjudicating to each of
them a specific one-third portion of the subject property
consisting of 10,246 square meters. The Extrajudicial Settlement
also contained provisions wherein the parties admitted knowledge
of the fact that their father mortgaged the subject property to the
Bank and that they intended to redeem the same at the soonest
possible time.

Three years after the execution of the Extrajudicial Settlement,

herein respondents bought the subject property from the
Bank. On October 12, 1992, a Deed of Sale of Registered
Land[6] was
executed
by
the
Bank
in
favor
of
respondents. Subsequently, Transfer Certificate of Title (TCT) No.
T-39,484(a.f.)[7] was issued in the name of respondents.Meanwhile,
petitioner continued possession of the subject lot.

On June 27, 1995, respondents filed a Complaint[8] for Recovery of

Possession and Damages against petitioner, contending that they
had already informed petitioner of the fact that they were the new
owners of the disputed property, but the petitioner still refused to
surrender possession of the same to them. Respondents claimed
that they had exhausted all remedies for the amicable settlement
of the case, but to no avail.

On February 7, 1997, the RTC rendered a Decision[9] disposing as

follows:

WHEREFORE, judgment is hereby rendered, ordering the

plaintiffs to execute a Deed of Sale in favor of the
defendant, the one-third share of the property in
question, presently possessed by him, and described in
the deed of partition, as follows:

A one-third portion of Transfer Certificate of

Title No. T-39,484 (a.f.), formerly Original
Certificate of Title No. P-788, now in the name
of Saturnino Balus and Leonarda B. Vda. de
Calunod, situated at Lagundang, Bunawan,
Iligan City, bounded on the North by Lot 5122;
East by shares of Saturnino Balus and Leonarda
Balus-Calunod; South by Lot 4649, Dodiongan
River; West by Lot 4661, consisting of 10,246
square
meters,
including
improvements
thereon.

and dismissing all other claims of the parties.

The amount of P6,733.33 consigned by the defendant

with the Clerk of Court is hereby ordered delivered to the
plaintiffs, as purchase price of the one-third portion of the
land in question.

Plaintiffs are ordered to pay the costs.

SO ORDERED.[10]

The RTC held that the right of petitioner to purchase from the
respondents his share in the disputed property was recognized by
the provisions of the Extrajudicial Settlement of Estate, which the
parties had executed before the respondents bought the subject
lot from the Bank.

Aggrieved by the Decision of the RTC, herein respondents filed an

appeal with the CA.

On May 31, 2005, the CA promulgated the presently assailed

Decision, reversing and setting aside the Decision of the RTC and
ordering petitioner to immediately surrender possession of the
subject property to the respondents. The CA ruled that when
petitioner and respondents did not redeem the subject property
within the redemption period and allowed the consolidation of
ownership and the issuance of a new title in the name of the
Bank, their co-ownership was extinguished.

Hence, the instant petition raising a sole issue, to wit:

WHETHER OR NOT CO-OWNERSHIP AMONG THE

PETITIONER AND THE RESPONDENTS OVER THE
PROPERTY PERSISTED/CONTINUED TO EXIST (EVEN AFTER
THE TRANSFER OF TITLE TO THE BANK) BY VIRTUE OF THE
PARTIES' AGREEMENT PRIOR TO THE REPURCHASE
THEREOF BY THE RESPONDENTS; THUS, WARRANTING
THE PETITIONER'S ACT OF ENFORCING THE AGREEMENT
BY
REIMBURSING
THE
RESPONDENTS
OF
HIS
(PETITIONER'S) JUST SHARE OF THE REPURCHASE PRICE.
[11]

The main issue raised by petitioner is whether co-ownership by

him and respondents over the subject property persisted even
after the lot was purchased by the Bank and title thereto
transferred to its name, and even after it was eventually bought
back by the respondents from the Bank.

Petitioner insists that despite respondents' full knowledge of the

fact that the title over the disputed property was already in the
name of the Bank, they still proceeded to execute the subject
Extrajudicial Settlement, having in mind the intention of
purchasing back the property together with petitioner and of
continuing their co-ownership thereof.

Petitioner posits that the subject Extrajudicial Settlement is, in

and by itself, a contract between him and respondents, because it
contains a provision whereby the parties agreed to continue their
co-ownership of the subject property by redeeming or
repurchasing the same from the Bank. This agreement, petitioner
contends, is the law between the parties and, as such, binds the
respondents. As a result, petitioner asserts that respondents' act
of buying the disputed property from the Bank without notifying

him inures to his benefit as to give him the right to claim his
rightful portion of the property, comprising 1/3 thereof, by
reimbursing respondents the equivalent 1/3 of the sum they paid
to the Bank.

The Court is not persuaded.

Petitioner and respondents are arguing on the wrong premise

that, at the time of the execution of the Extrajudicial Settlement,
the subject property formed part of the estate of their deceased
father to which they may lay claim as his heirs.

At the outset, it bears to emphasize that there is no dispute with

respect to the fact that the subject property was exclusively
owned by petitioner and respondents' father, Rufo, at the time
that it was mortgaged in 1979. This was stipulated by the parties
during the hearing conducted by the trial court on October 28,
1996.[12] Evidence shows that a Definite Deed of Sale [13] was
issued in favor of the Bank on January 25, 1984, after the period
of redemption expired. There is neither any dispute that a new
title was issued in the Bank's name before Rufo died on July 6,
1984. Hence, there is no question that the Bank acquired
exclusive ownership of the contested lot during the lifetime of
Rufo.

The rights to a person's succession are transmitted from the

moment of his death.[14] In addition, the inheritance of a person
consists of the property and transmissible rights and obligations
existing at the time of his death, as well as those which have

accrued thereto since the opening of the succession. [15] In the

present case, since Rufo lost ownership of the subject property
during his lifetime, it only follows that at the time of his death, the
disputed parcel of land no longer formed part of his estate to
which his heirs may lay claim. Stated differently, petitioner and
respondents never inherited the subject lot from their father.

Petitioner and respondents, therefore, were wrong in assuming

that they became co-owners of the subject lot. Thus, any issue
arising from the supposed right of petitioner as co-owner of the
contested parcel of land is negated by the fact that, in the eyes of
the law, the disputed lot did not pass into the hands of petitioner
and respondents as compulsory heirs of Rufo at any given point in
time.

The foregoing notwithstanding, the Court finds a necessity for a

complete determination of the issues raised in the instant case to
look into petitioner's argument that the Extrajudicial Settlement is
an independent contract which gives him the right to enforce his
right to claim a portion of the disputed lot bought by respondents.

It is true that under Article 1315 of the Civil Code of the

Philippines, contracts are perfected by mere consent; and from
that moment, the parties are bound not only to the fulfillment of
what has been expressly stipulated but also to all the
consequences which, according to their nature, may be in keeping
with good faith, usage and law.

Article 1306 of the same Code also provides that the contracting
parties may establish such stipulations, clauses, terms and
conditions as they may deem convenient, provided these are not
contrary to law, morals, good customs, public order or public
policy.

In the present case, however, there is nothing in the subject

Extrajudicial Settlement to indicate any express stipulation for
petitioner and respondents to continue with their supposed coownership of the contested lot.

On the contrary, a plain reading of the provisions of the

Extrajudicial Settlement would not, in any way, support
petitioner's contention that it was his and his sibling's intention to
buy the subject property from the Bank and continue what they
believed to be co-ownership thereof. It is a cardinal rule in the
interpretation of contracts that the intention of the parties shall
be accorded primordial consideration. [16] It is the duty of the
courts to place a practical and realistic construction upon it,
giving due consideration to the context in which it is negotiated
and the purpose which it is intended to serve. [17] Such intention is
determined from the express terms of their agreement, as well as
their contemporaneous and subsequent acts.[18] Absurd and
illogical interpretations should also be avoided. [19]

For petitioner to claim that the Extrajudicial Settlement is an

agreement between him and his siblings to continue what they
thought was their ownership of the subject property, even after
the same had been bought by the Bank, is stretching the
interpretation of the said Extrajudicial Settlement too far.

In the first place, as earlier discussed, there is no co-ownership to

talk about and no property to partition, as the disputed lot never
formed part of the estate of their deceased father.

Moreover, petitioner's asseveration of his and respondents'

intention of continuing with their supposed co-ownership is
negated by no less than his assertions in the present petition that
on several occasions he had the chance to purchase the subject
property back, but he refused to do so. In fact, he claims that
after the Bank acquired the disputed lot, it offered to re-sell the
same to him but he ignored such offer. How then can petitioner
now claim that it was also his intention to purchase the subject
property from the Bank, when he admitted that he refused the
Bank's offer to re-sell the subject property to him?

In addition, it appears from the recitals in the Extrajudicial

Settlement that, at the time of the execution thereof, the parties
were not yet aware that the subject property was already
exclusively owned by the Bank. Nonetheless, the lack of
knowledge on the part of petitioner and respondents that the
mortgage was already foreclosed and title to the property was
already transferred to the Bank does not give them the right or
the authority to unilaterally declare themselves as co-owners of
the disputed property; otherwise, the disposition of the case
would be made to depend on the belief and conviction of the
party-litigants and not on the evidence adduced and the law and
jurisprudence applicable thereto.

Furthermore, petitioner's contention that he and his siblings

intended to continue their supposed co-ownership of the subject
property contradicts the provisions of the subject Extrajudicial
Settlement where they clearly manifested their intention of
having the subject property divided or partitioned by assigning to
each of the petitioner and respondents a specific 1/3 portion of
the same. Partition calls for the segregation and conveyance of a
determinate portion of the property owned in common. It seeks a
severance of the individual interests of each co-owner, vesting in
each of them a sole estate in a specific property and giving each
one a right to enjoy his estate without supervision or interference
from the other.[20] In other words, the purpose of partition is to put
an end to co-ownership,[21] an objective which negates petitioner's
claims in the present case.

WHEREFORE, the instant petition is DENIED. The assailed

Decision of the Court of Appeals, dated May 31, 2005 in CA-G.R.
CV No. 58041, is AFFIRMED.

SO ORDERED.

DIOSDADO M. PERALTA
Associate Justice
WE CONCUR:

RENATO C. CORONA
Associate Justice
Chairperson
G.R. No. L-24569

February 26, 1926

MANUEL TORRES, petitioner-appellant and

LUZ LOPEZ DE BUENO, appellant,
vs.
MARGARITA LOPEZ, opponent-appellee.
Araneta & Zaragoza for appellant.
Marcaida, Capili & Ocampo and Thomas Cary Welch for appellee.
MALCOLM, J.:
This case concerns the probate of the alleged will of the late Tomas Rodriguez y Lopez.
Tomas Rodriguez died in the City of Manila Philippine Islands. On February 25, 1924, leaving a
considerable estate. Shortly thereafter Manuel Torres, one of the executors named in the will asked
that the will of Rodriguez be allowed. Opposition was entered by Margarita Lopez, the first cousin of
the deceased on the grounds: (1) That the testator lacked mental capacity because at the time
of senile dementia and was under guardianship; (2) that undue influence had been exercised by the
persons benefited in the document in conjunction with others who acted in their behalf; and (3) that
the signature of Tomas Rodriguez to the document was obtained through fraud and deceit. After a
prolonged trial judgment was rendered denying the legalization of the will. In the decision of the trial
judge appeared, among others, these findings:
All this evidence taken together with the circumstances that before and at the time Tomas
Rodriguez was caused to sign the supposed will Exhibit A, and the copies thereof there
already existed a final judgment as to his mental condition wherein he was declared
physically and mentally incapacitated to take care of himself and manage his estate shows in
a clear and conclusive manner that at the time of signing the supposed will of Tomas
Rodriguez did not possess such mental capacity as was necessary to be able him to dispose
of his property by the supposed will.
But even supposing as contended by petitioner's counsel that Tomas Rodriguez was at the
time of execution of the will, competent to make a will, the court is of the opinion that the will
cannot be probated for it appears from the declaration of the attesting witness Elias Bonoan
that when the legatee Luz Lopez presented the supposed will, Exhibit A, to Tomas
Rodriguez, she told him to sign said Exhibit A because it was a document relative to the
complaint against one Castito, which Exhibit 4, then pending in the justice of the peace court,
and for the further reason that said Tomas Rodriguez was then under guardianship, due to
his being mentally and physically incapacitated and therefore unable to manage his property
and take care of himself. It must also be taken into account that Tomas Rodriguez was an old
man 76 years of age, and was sick in the hospital when his signature to the supposed will
was obtained. All of this shows that the signature of Tomas Rodriguez appearing in the will
was obtained through fraudulent and deceitful representations of those who were interested
in it. (Record on Appeal, p. 23)

From the decision and judgment above-mentioned the proponents have appealed. Two errors are
specified, viz: (1) The court below erred in holding that at the time of signing his will, Tomas
Rodriguez did not possess the mental capacity necessary to make the same, and (2) the court below
erred in holding that the signatures of Tomas Rodriguez to the will were obtained through fraudulent
and deceitful representations, made by persons interested in the executions of said will.
The record is voluminous close to two thousand typewritten pages, with a varied assortment of
exhibits. One brief contains two hundred seventy-four pages, the other four hundred fifteen pages.
The usual oral argument has been had. The court must scale this mountains of evidence more or
less relevant and of argument intense and prolific to discover the fertile valleys of fact and principle.
The topics suggested by the assignments of error Testamentary Capacity and Undue Influence
will be taken up separately and in order. An attempt will be made under each subject first to make
findings of fact quite separate and apart from those of the judge and second to make findings of law
and the law by rendering judgment.
I. TESTAMENTARY CAPACITY
A. Facts. For a long time prior to October, 1923, Tomas Rodriguez was in feeble health. His
breakdown was undoubtedly due to organic weakness, to advancing years and to an accident which
occurred in 1921 (Exhibit 6). Ultimately, on August 10 1923, on his initiative, Tomas Rodriguez
designated Vicente F. Lopez as the administrator of his property (Exhibit 7).
On October 22, 1923, Margarita Lopez petitioned the Court of First Instance of Manila to name a
guardian for Tomas Rodriguez because of his age and pathological state. This petition was opposed
by Attorney Gregorio Araneta acting on behalf of Tomas Rodriguez for the reason that while
Rodriguez was far from strong on account of his years, he was yet capable of looking after his
property with the assistance of his administrator, Vicente F. Lopez. The deposition of Tomas
Rodriguez was taken and a perusal of the same shows that he was able to answer nearly all of the
questions propounded intelligently (Exhibit 5-g). A trial had at which considerable oral testimony for
the petitioner was received. At the conclusion of the hearing, an order was issued by the presiding
judge, declaring Tomas Rodriguez incapacitated to take care of himself and to manage his property
and naming Vicente F. Lopez as his guardian. (Exhibit 37).
Inasmuch as counsel for the appellee make such of one incident which occurred in connection with
the guardianship proceedings, it may as well be mentioned here as later. This episode concerns the
effort of deputy sheriff Joaquin Garcia to make service on Tomas Rodriguez on October 31, 1923.
We will let the witness tell in his own words what happened on the occasions in question:
I found him lying down on his bed. . . . And when it (the cleaning of his head) was finished, I
again entered his room, and told him that I had an order of the court which I wanted to read
as I did read to him, but after reading the order he asked me what the order meant; 'I read it
to you so that you may appear before the court, understand,' then I read it again, but he
asked what the order said; in view of that fact I left the order and departed from the house.
(S. R., p. 642.)
To return to our narrative possibly inspired by the latter portion of the order of Judge Diaz, Tomas
Rodriguez was taken to the Philippine General Hospital on November 27, 1923. There he was to
remain sick in bed until his death. The physician in charge during this period was Dr. Elias Domingo.
In the clinical case record of the hospital under the topic "Diagnosis (in full)," we find the following
"Senility; Hernia inguinal; Decubitus" (Exhibit 8).

On the door of the patient's room was placed a placard reading "No visitors, except father,
mother, sisters, and brothers." (Testimony of head nurse physician, there were permitted to visit the
patient only the following named persons: Santiago Lopez, Manuel Ramirez, Romana Lopez, Luz
Lopez de Bueno, Remedio Lopez, Benita Lopez, Trinidad Vizcarra, Apolonia Lopez, Antonio Haman,
and Gregorio Araneta ((Exhibit 9). The list did not include the names of Margarita Lopez and her
husband Antonio Ventura. Indeed the last named persons experienced considerable difficulty in
penetrating in to the room of Rodriguez.
Santiago Lopez states that on one occasion when he was visiting Tomas Rodriguez in the hospital ,
Rodriguez expressed to him a desire to make a will and suggested that the matter be taken up with
Vicente F. Lopez (S. R., p. 550). This information Santiago Lopez communicated to Vicente F.
Lopez, who then interviewed Maximino Mina, a practicing attorney in the City of Manila, for the
purpose of securing him to prepare the will. In accordance with this request, Judge Mina conferred
with Tomas Rodriguez in the hospital in December 16th and December 29th. He ascertained the
wishes of Rodriguez and wrote up a testament in rough draft. The attorney expected to return to the
hospital on December 31st to have the will executed but was unable to do so on account of having
to make a trip to the provinces. Accordingly, the papers were left with Santiago Lopez.
In corroboration of the above statements, we transcribe a portion of Judge Mina's testimony which
has not been challenged in any way:
ARANETA: Q. Will you please tell your motive for holding an interview with Vicente Lopez?
MAXIMINO MINA: A. Then I arrived in the house of Vicente Lopez, after the usual greeting
and other unimportant things, he consulted me or presented the question as to whether or
not D. Tomas could make his will, having announced his desire to do so. I told him that it
seemed that we were not called upon to decide or give an opinion as to whether or not he
can make a will; it is a question to be submitted to the court, but as he had announced his
desire, it is our duty to comply with it. Then he requested me to do what was necessary to
comply with his wishes: I told him I was to see him; then we agreed that on the morning next
to the following evening that is on the 16th, I should go to the General Hospital and so I did.
Q. Did you go to the hospital in the evening of the 16th? A. Yes, sir.
Q. Did you meet D. Tomas? A. Yes, sir.
Q. Did D. Tomas tell you his desire to make a will?
OCAMPO: Leading.
ARANETA: I withdraw. What, if anything, did D. Tomas tell you on that occasion when you
saw him there? A. He told me that.
Q. Please tell us what conversation you had with D. Tomas Rodriguez? A. The
conversation I had with him that evening according to my best recollection I cannot tell
the exact words and perhaps the order. After the usual greetings, Good evening, D. Tomas, '
Good evening,' How are you,' ' How do you do? Very well, just came here in the name of D.
Vicente Lopez why does he not come. He cannot come because he has many things to do,
and besides it is hard for him and makes him tired, so he told me to come.' Mina, your
tenant, attorney.' Are you an attorney? Yes.' Where do you live? I live in Quiapo.' Oh, in
Quiapo, a good district, it is gay a commercial place you must have some business there

because that is a commercial place. Unfortunately, I have none, D. Tomas.' Well, you must
be have because the profession alone does not give enough. Where is your office? I work in
the office of Mr. Chicote. That Mr. Chicote must be rich, it seems to me that he is. The
profession gives almost nothing it is better to have properties. I am an attorney but do not
depend upon my profession. I interrupted D. Tomas saying, since you want to make a will,
when and to whom do you want to leave your fortune? Then he said, To whom else? To my
cousin Vicente Lopez and his daughter Luz Lopez. Which properties do you want to give to
your cousin and niece? All my properties, Won't you specify the property to be given to each
of them? What for? All my property. Don't you have any other relatives? Yes, sir I have. Won't
you give any to those relatives? What for? was his answer. Well, do you want to specify said
properties, to say what they are? and he again said, What for? they know them, he is my
attorney-in-fact as to all property. I also said, Well and as legacy won't you give property to
other persons? answers, I think, something, they will know it. After being asked, Whom do
you think, would you want to be your executor? After hesitating a little, This Torres, Manuel or
Santiago Lopez also. Then I asked him, What is your religion? He answered, Roman
Apostolic Catholic, and then he also asked me, and your? Also Roman Apostolic Catholic,
Where have you studied?' 'In the University of Santo Tomas.' 'It is convenient to preserve the
Catholic religion that our descendants have left us. And you, what did you have anything
more to say as to your testamentary dispositions? No, he answered. Then I remind him, 'You
know that Vicente Lopez has sent me to get these dispositions of yours, and he said, Yes, do
it.' I asked him, When do you want it done? Later on, I will send for you. After this believing to
have done my duty, I bade him good-bye.
Q. Did you have any other occasion to see him? A. Yes.
Q. When? A. On December 29, 1923, also in the evening.
Q. Why did you go to see him? A. Because as I had not received any message either
from Vicente Lopez or Tomas Rodriguez, as I had received notices in connection with the
few cases I had in the provinces particularly in Tayabas, which compelled me to be absent
from Manila until January 1st at least, for I might be there for several days, so I went to the
General Hospital of my own accord since I had not received any messages from them
with a rough draft which I had prepared in accordance with what he had told me in our
conversation. After the greetings, I told him, Here I am D. Tomas; this is the rough draft of
your will in accordance with your former statements to me in order to submit it to you. Do you
want to read it?' 'Please do me the favor of reading it. I read it slowly to him in order that he
could understand it . After reading, Is it all right, that is the way, few words you see it
takes only a few minutes; now I can execute the will. We can do it takes only a few minutes.'
In view of that statement of his, I called his attention, ' But we don't have witnesses, D.
Tomas.' I looked out through the door to see if I could call some witnesses but it was late
then and it was thought better to do it on the 31st of December. Then we talked about other
things, and he again asked. Where were you born? I told him in Quiapo. Ah, good district,
and especially now that the fiesta of Quiapo is coming near,' and then I interrupted him, Yes,
the fiesta of the Holy Child and of Our Lady of Mount Carmel' because we also talked about
the fiesta of San Sebastian. I again reminded him that we could not do it because the
witnesses were not there and he explained, Good Christmas present, isn't it?' I did not tell
him anything and in view of that I did not deem it necessary to stay there any longer.
Q. With whom did you make the arrangement to make the will on the evening of the 31st of
December you said that it was agreed that the will be executed on the evening of
December 31st? A. With Santiago Lopez and Don Tomas.

Q. Was the will executed on the 31st of December? A. What happened is this: In view of
that agreement, I fixed up the draft which I had, dating it the 31st of December, putting
everything in order; we agreed that Santiago would meet me on 31st day between five and
six in the evening or a little before, but it happened that before the arrival of that date
Santiago Lopez came and told me that I need not trouble about going to the General
Hospital; because it could not be carried out for the reason that certain requisites were
lacking. In view of this and bearing always in mind that on the following day I had to go to the
provinces, I told Santiago Lopez that I would leave the papers with him because I might go to
the provinces.
Q. What may be the meaning of those words good Christmas present? A. They are given
a Christmas present when Christmas comes or on the occasion of Christmas.
Q. I show you this document which is marked Exhibit A, tell me if that is the will or copy of the
will which you delivered to Santiago Lopez on December 21, 31, 1923? A. With the
exception of the words '3 de enero de 1924' It seems to be literally identical. (S. R. pp. 244249.)
As the witness stated, the will which was prepared by him is identical with that signed by the testator
and the attesting witnesses with the single exception of the change of the date from December 31,
1923, to January 3, 1924. Two copies besides the original of the will were made. The will is brief and
simple in terminology.
For purposes of record, we copy the will as here translated into English:
ONLY PAGE
In the City of Manila, Philippines Islands, this January 3, 1924, I, Tomas Rodriguez, of age
and resident of the City of Manila, Philippine Islands, do freely and voluntarily make this my
will and testament in the Spanish language which I know, with the following clauses:
First I declare that I am a Roman Apostolic Catholic, and order that my body be buried in
accordance with my religion, standing and circumstances.
Second. I name my cousin Vicente F. Lopez and his daughter Luz Lopez de Bueno as my
only universal heirs of all my property.
Third. I appoint D. Manuel Torres and D. Santiago Lopez as my prosecutors.
In witness whereof I sign this typewritten will, consisting of one single page, in the presence
of the witness who sign below.
(Sgd.) TOMAS RODRIGUEZ
(Left marginal signatures:)
TOMAS RODRIGUEZ
ELIAS BONOAN
V. L. LEGARDA
A. DE ASIS

We hereby certify that on the date and in the place above indicated, Don Tomas Rodriguez
executed this will, consisting of one single typewritten page, having signed at the bottom of
the will in the presence of us who saw as witnesses the execution of this will, we signed at
the bottom thereof in the presence of the testator and of each other.
(Sgd.) V. L. LEGARDA
ELIAS BONOAN
A. DE ASIS
(Exhibit A.)
On the afternoon of January 3, 1924 there gathered in the quarters of Tomas Rodriguez in the
Philippine General Hospital, Santiago Lopez and Dr. A. De Asis, attesting witness; and Dr. Elias
Fernando Calderon, Dr. Elias Domingo and Dr. Florentino Herrera, physicians, there for purposes of
observation. (Testimony of Elias Bonoan, S. R., p. 8 of Vl. Legarda, S. R. p. 34. ) Possibly also Mrs.
Luz Lopez de Bueno and Mrs. Nena Lopez were present; at least they were hovering in the
background.
As to what actually happened, we have in the record two absolutely contradictory accounts. One
emanates from the attesting witness, Doctor Bonoan. The other is the united testimony of all
remaining persons who were there.
Doctor Elias Bonoan was the first witness called at the trial. He testified on direct examination as to
formal matters, such as the identification of the signatures to the will .On cross-examination, he
rather started the proponents of the will by stating that Luz Lopez de Bueno told Tomas Rodriguez to
sign the document it concerned a complaint against Castito and that nobody read the will to the
testator. Doctor Bonoan's testimony along this line is as follows:
QUESTIONS.
MARCAIDA : Q. Why were you a witness to the will of Tomas Rodriguez?
Araneta: I object to the question as being immaterial.
Court: Objection overruled.
Dr. Bonoan: A. Because I was called up by Mrs. Luz by telephone telling me to be in the
hospital at 3 o'clock sharp in the afternoon of the 3d of January.
Q. Who is that Luz whom you have mentioned? A. Luz Lopez, daughter of Vicente Lopez.
Q. What day, January 3, 1924? A. Yes, sir.
Q. When did Luz Lopez talk to you in connection with your going to the hospital? A. On
the morning of the 3d she called me up by telephone.
Q. On the morning? A. On the morning.
Q. Before January 3, 1924, when the will of Tomas Rodriguez was signed, did Luz Lopez talk
to you? A. Yes, sir.

Q. How many days approximately before was it? A. I cannot tell the day, it was
approximately one week before, on that occasion when I was called up by her about the
deceased Vicente Lopez.
Q. What did she tell you when you went to the house of Vicente Lopez one week
approximately before signing the will? - A. That Tomas Rodriguez would make a will.
Q. Don't you know where the will of Tomas Rodriguez was made? - A. In the General
Hospital.
Q. Was that document written in the hospital? A. I have not seen it.
Q. When you went to the General Hospital on January 3, 1924, who were the persons you
met in the room where the patients was ? A. I met one of the nieces of the deceased
Tomas Rodriguez, Mrs. Nena Lopez and Dna. Luz Lopez.
Q. Were those the only persons? A. Yes, sir.
Q. What time approximately did you go to the General Hospital on January 3d? A. A
quarter to 3.
Q. After you, who came? A. Antonio de Asis, Doctor Herrera, later on Doctor Calderon
arrived with Doctor Elias Domingo and lastly Santiago Lopez came and then Mr. Legarda.
Q. When you entered the room of the patient, D. Tomas Rodriguez, in the General Hospital
in what position did you find him? A. He was lying down.
Q. Did you greet D. Tomas Rodriguez? A. I did.
Q. Did D. Tomas Rodriguez answer you? A. Dna. Nena immediately answered in advance
and introduced me to him saying that I was the brother of his godson.
Q. Did other persons whom you have mentioned, viz, Messrs. Calderon, Herrera, Domingo,
De Asis and Legarda greet Tomas Rodriguez?
ARANETA: I object to the question as being improper cross-examination. It has not been the
subject of the direct examination.
COURT: Objection overruled.
ARANETA: Exception.
A. No, sir, they joined us.
Q. What was D. Tomas told when he signed the will.? A. To sign it.
Q. Who told D. Tomas to sign the will? A. Luz Lopez.

Q. What did Luz Lopez tell Tomas Rodriguez in order that he should sign the will? A. She
told him to sign the document; the deceased Tomas Rodriguez before signing the document
asked what that was which he was to sign.
Q. What did anybody answer to that question of D. Tomas? A. Luz Lopez told him to sign
it because it concerned a complaint against Castito. D. Tomas said, 'What is this?" And Luz
Lopez answered, 'You sign this document, uncle Tomas, because this is about the complaint
against Castito.
Q. Then Tomas Rodriguez signed the will? A. Yes, sir.
Q. Who had the will? Who was holding it? A. Mr. Vicente Legarda had it his own hands.
Q. Was the will signed by Tomas Rodriguez lying down, on his feet or seated? A. Lying
down.
Q. Was the will read by Tomas Rodriguez or any person present at the time of signing the
will, did they read it to him? A. Nobody read the will to him.
Q. Did not D. Tomas read the will? A. I have not seen it.
Q. Were you present? A. Yes, sir. ( S. R. p. 8)
As it would be quite impracticable to transcribe the testimony of all the others who attended the
making of the will, we will let Vicente L. Legarda, who appears to have assumed the leading role, tell
what transpired. He testified in part:
ARANETA : Q. Who exhibited to you those documents, Exhibits A, A-1, and A-2?
LEGARDA: A. Santiago Lopez.
Q. Did he show you the same document? A. First that is to say the first document he
presented to me was a rough draft, a tentative will, and it was dated December 31st, and I
called his attention to the fact that the date was not December 31, 1923, and that it was
necessary to change the date to January 3, 1924, and it was done.
Q. And it was then, was it not when Exhibits A, A-1, and A-2 were written? A. Yes, sir.
Q. Do you any know where it was written? A. In the General Hospital.
Q. Did any time elapse from your making the suggestion that the document which you
delivered to Santiago Lopez be written until those three Exhibits A, A-1, and A-2 were
presented to you? A. About nine or ten minutes approximately.
Q. The time to make it clean? A. Yes, sir.
Q. Where were you during that time? A. In the room of D. Tomas Rodriguez.
Q. Were you talking with him during that time. A. Yes, sir.

Q. About what things were you talking with him? A. He was asking me about my health,
that of my family how my family was my girl, whether we were living in Pasay, he asked me
about the steamer Ildefonso, he said that it was a pity that it had been lost because he knew
that my father-in-law was the owner of the steamer Ildefonso.
xxx

xxx

xxx

Q. When those documents, Exhibit A, A-1, and A-2, that is the original and two copies of the
will signed by D. Tomas Rodriguez were written clean, will you please tell what happened?
A. When Santiago Lopez gave them to me clean, I approached D. Tomas Rodriguez and
told him: Don Tomas, here is this will which is ready for your signature.
Q. What did D. Tomas do when you said that his will you were showing to him was ready?
A. The first thing he asked was: the witnesses? Then I called the witnesses Gentlemen,
please come forward, and they came forward, and I handed the documents to D. Tomas. D.
Tomas got up and then took his eyeglasses, put them on and as he saw that the electric
lamp at the center was not sufficiently clear, he said: 'There is no more light;' then somebody
came forward bringing an electric lamp.
Q. What did D. Tomas do when that electric lamp was put in place? A. The eyeglasses
were adjusted again and then he began to read, and as he could not read much for a long
time, for he unexpectedly felt tired and took off the eyeglasses, and as I saw that the poor
man was tired, I suggested that it be read to him and he stopped reading and I read the will
to him.
Q. What happened after you had read it to him? A. He said to me, 'Well, it is all right. It is
my wish and my will. Don't you have any pen?' I asked a pen of those who were there and
handed it to D. Tomas.
Q. Is it true that Tomas Rodriguez asked at that time 'What is that which I am going to sign?'
and Luz Lopez told him: 'It is in connection with the complaint against Castito?' A. It is not
true, no, sir.
Q. During the signing of the will, did you hear Luz Lopez say anything to Tomas Rodriguez?
A. No, Sir, she said nothing.
Q. According to you, Tomas Rodriguez signed of his own accord? A. Yes, sir.
Q. Did nobody tell him to sign? A. Nobody.
Q. What happened after the signing of the will by Tomas Rodriguez? A. I called the
witnesses and we signed in the presence of each other and of Tomas Rodriguez.
Q. After the signing of the will, did you have any conversation with Tomas Rodriguez? A.
Doctor Calderon asked D. Tomas Rodriguez some questions.
Q. Do you remember the questions and the conversation held between Doctor Calderon and
D. Tomas after the signing of the will? A. I remember that afterwards Doctor Calderon
talked to him about business. He asked him how the business of making loans at 18 per
cent. It seems that Tomas Rodriguez answered: That loan at 18 per cent is illegal, it is usury.
(S. R., p. 38.)

In addition to the statements under oath made by Mr. Legarda, an architect and engineer in the
Bureau of Public Works and professor of engineering and architecture in the University of Santo
Tomas, suffice it to say that Luz Lopez de Bueno denied categorically the statements attributed to
her by Doctor Bonoan (S. R., p. 568). In this stand, she is corroborated by Doctor Calderon,
Domingo, and Herrera, the attending physicians. On this point, Doctor Calderon the Director of the
Philippine General Hospital and Dean of the College of Medicine in the University of the Philippines,
testified:
Mr. ARANETA: Q. What have you seen or heard with regard to the execution of the will?
Dr. CALDERON: A. Mr. Legarda handled the will to D. Tomas Rodriguez. D. Tomas asked for
his eyeglass, wanted to read and it was extremely hard for him to do so. Mr. Legarda offered
to read the will, it was read to him and he heard that in that will Vicente Lopez and Luz Lopez
were appointed heirs; we also saw him sign that will, and he signed not only the original but
also the other copies of the will and we also saw how the witnesses signed the will; we heard
that D. Tomas asked for light at that moment; he heard that D. Tomas asked for light at that
moment; he was at that time in a perfect mental state. And we remained there after the will
was executed. I asked him, 'How do you feel, how are you? Well I am well, ' he answered. '
How is the business? There is a crisis at there is one good business, namely, that of making
loans at the rate of 18 per cent, 'and he answered, 'That is usury.; When a man answers in
that way, ' That is usury it shows that he is all right.
Q. Were you present when Mr. Legarda handed the will to him? A. Yes, sir.
Q. Did any person there tell Don Tomas that was a complaint to be filed against one Castito?
A. No, sir, I have not heard anything of the kind.
Q. It was said here that when the will was handed to him, D. Tomas Rodriguez asked what
that was which he was to sign and that Luz Lopez answered, 'That is but a complaint in
connection with Castito.' Is that true? A. I have not heard anything of the kind.
Q. Had anybody told that to the deceased, would you have heard it? A. Yes, sir.
Q. Was Luz Lopez there? A. I don't remember having seen her; I am not sure; D. Santiago
Lopez and the three witnesses were there; I don't remember that Luz Lopez was there.
Q. Had anybody told that to the deceased, would you have heard it? A. Yes, sir.
Q. Do you remember whether he was given a pen or he himself asked for it? A. I don't
know; it is a detail which I don't remember well; so that whether or not he was given a pen or
he himself asked for it, I do not remember.
Q. But did he sign without hesitation ? A. With no hesitation.
Q. Did he sign without anybody having indicated to him where he was to sign? A. Yes,
without anybody having indicated it to him.
Q. Do you know whether D. Tomas Rodriguez asked for more light before signing? A. He
asked for more lights, as I have said before.

Q. Do you remember that detail? A. Yes, sir. They first lighted the lamps, but as the light
was not sufficient, he asked for more light.
Q. Do you remember very well that he asked for light? A. Yes, sir. (S. R. p.993).
A clear preponderance of the evidence exists in favor of the testimony of Vicente Legarda,
corroborated as it is by other witnesses of the highest standing in the community. The only
explanation we can offer relative to the testimony of Doctor Bonoan is that possibly he may have
arrived earlier than the others with the exception of Luz Lopez de Bueno, and that Luz Lopez de
Bueno may have made some sort of an effort to influence Tomas Rodriguez. There is however no
possible explanation of the statement of Doctor Bonoan to the effect that no one read the will to
Rodriguez when at least five other persons recollect that Vicente Legarda read it to him and recall
the details connected with the reading.
There is one curious occurrence which transpired shortly after the making of the will which should
here be mentioned. It is that on January 7, 1923 (1924), Luz Lopez de Bueno signed a document in
favor of Doctor Bonoan in the amount of one thousand pesos (P1,000). This paper reads as follow:
Be it know by these present:
That I, Luz Lopez de Bueno in consideration of the services which at my instance
were and will when necessary be rendered by Dr. Elias Bonoan in connection with
the execution of the will of my uncle, Don Tomas Rodriguez and the due probate
thereof, do hereby agree to pay said doctor, by way of remuneratory donation, the
sum of one thousand pesos (P1,000), Philippine currency, as soon as said services
shall have been fully rendered and I shall be in possession of the inheritance which
in said will is given to me.
In witness whereof, I sign this document which was freely and spontaneously
executed by me in Manila, this January 7, 1923.
(Sgd.) LUZ LOPEZ DE BUENO
(Exhibit 1)
There is a sharp conflict of testimony, as is natural between Doctor Bonoan and Luz Lopez de
Bueno relative to the execution of the above document. We shall not attempt to settle these
differences as in the final analysis it will not affect the decision one way or the other. The most
reasonable supposition is that Luz Lopez de Bueno imprudently endeavored to bring over Doctor
Bonoan to her side of the race by signing and giving to him Exhibit 1. But the event cannot easily be
explained away.
Tomas Rodriguez passed away in the Philippine General Hospital, as we said on February 25, 1924.
Not even prior to his demise the two actions in the Lopez family had prepared themselves for a fight
over the estate. The Luz Lopez faction had secured the services of Doctor Domingo, the physician in
charge of the Department of Insane of San Lazaro Hospital an Assistant Professor of Nervous and
Mental Diseases in the University of the Philippines, as attending physician; as associated with him
for purposes of investigation Dr. Fernando Calderon the Director of the Philippine General Hospital
and Dr. Florentino Herrera, a physician in active practice in the City of Manila; and had arranged to
have two members of the medical fraternity, Doctors De Asis and Bonoan as attesting witnesses.
The Margarita Lopez faction had taken equal precautions by calling a witnesses in the guardship
proceedings Dr. Sixto de los Angeles Professor and Chief of the Department of Legal Medicine in the
University of the Philippines, and Dr. Samuel Tietze, with long experience in mental diseases;

thereafter by continuing Doctors de Los Angeles and Tietze to examine Tomas Rodriguez and by
associating with them Dr. William Burke, a well-known physician of the City of Manila. Skilled
lawyers were available to aid and abet the medical experts. Out of such situations, do will contests
arise.
An examination of the certificates made by the two sets of physicians and of their testimony shows
that on most facts they concur. Their deductions from these facts disclose a substantial divergence
of opinion. It is a hopeless task to try to reconcile the views of these distinguished gentlemen who
honestly arrived at definite but contradictory conclusions. The best that we can do under the
circumstances is to set forth the findings of the Calderon committed on the hand and of the De Los
Angeles committee on the other.
Doctors Calderon, Domingo and Herrera examined Tomas Rodriguez individually and jointly before
the date when the will was executed. All of them, as we have noticed were, present at the signing of
the will to note the reactions of the testator. On the same day that the will was accomplished, the
three doctors signed the following certificate:
The undersigned, Drs. of Medicine, with offices in the City of Manila, and engaged in the
practice of their profession do hereby certify:
That they have jointly examined Mr. Tomas Rodriguez, confined in the General Hospital, floor
No. 3, room No. 361 on three different occasion and on different days and have found that
said patient is suffering from anemia, hernia inguinal, chronic dyspepsia and senility.
As to his mental state the result of the different tests to which this patient was submitted is
that his intellectual faculties are sound, except that his memory is weak, which is almost a
loss for recent facts, or events which have recently occurred, due to his physical condition
and old age.
They also certify that they were present at the time he signed his will on January 3, 1924, at
1:25 p.m. and have found his mental state in the same condition as was found by the
undersigned in their former examination and that in executing said will the testator and full
knowledge of the contents thereof.
In testimony whereof, we sign in Manila this January 3, 1924.
(Sgd.) FLORENTINO HERRERA
Tuberias 1264
Quiapo
(Sgd.) Dr. FERNANDO CALDERON
General Hospital
Manila
(Sgd.) Dr. ELIAS DOMINGO
613 Remedios
Malate
(Exhibit E in relation with Exhibits C and D.)

Doctor Calderon while on the witness-stand expressed a definite opinion as to the mentality
of Tomas Rodriguez What follows is possibly the most significant of the doctor's statements:
Dr. CALDERON testifying after interruption:
A. I was naturally interested in finding out the true mental state of Tomas Rodriguez and that
was the chief reason why I accepted and gave my cooperation to Messrs. Elias Domingo
and Florentino Herrera because had I found that Tomas Rodriguez and Florentino Herrera
because had I found that Tomas Rodriguez was really insane, I should have ordered his
transfer to the San Lazaro Hospital or to other places, and would not have left him in the
General Hospital. Pursuant to my desire, I saw Tomas Rodriguez in his room alone twice to
have interviews with his, he begging a person whom I knew since several years ago; at the
end of the interviews I became convinced that there was nothing wrong with him; I had not
seen anything indicating that he was insane and for this reason I accepted the request of my
companions and joined them; we have been on five different occasions examining Tomas
Rodriguez jointly from the physical standpoint but chiefly from the standpoint of his mental
state; I have been there with Messrs. Herrera and Elias Domingo, examining Tomas
Rodriguez and submitting to a mental test on the 28, 29, 10 and 31 of December and the
22nd of January, 1924 five consecutive days in which he have been together besides my
particular visits.
Q. Will you place state the result of the observation you made alone before those made by
the three of you jointly? A. I asked Tomas Rodriguez some questions when I went alone
there, I asked him were he was living formerly and he well remembered that in Intramuros,
Calle Real; I asked him whether he remembered one Calderon who was living in the upper
floor of the house and then he told me yes; than I asked him about his tenant by the name of
Antonio Jimenez and he told me yes, now I remember that he had two daughters, Matilde
and Paz. Then I told him that I had been living in the house of the gentlemen, Antonio
Jimenez already dead in the upper story of the house belonged to Tomas Rodriguez; I told
him that Antonio Jimenez was his tenant of the upper story, that is that he was living on the
ground floor and Antonio Jimenez upstairs and he remembered all of this I also began to talk
of my brother, Felipe Calderon, who he said of course that he knew; he remembered him
because he was his companion and was a successful attorney. This was when I had an
interview with him. Then in order to observe better and to be sure of my judgment or opinion
about the mental state of Tomas Rodriguez, I saw him again and we began to speak of
something which I don't remember now. In fine, we talked of things of interest and as I had
finally accepted the request of Drs. Elias Domino and Florentino Herrera to join then the first
and second time that Herrera, Domingo and myself went there, no stenographic notes were
taken of what happened there.
Q. So that before joining Doctors Herrera and Domingo you had already paid two visits to the
patient? A. Yes, sir.
Q. From the result f the conversation you had with Tomas Rodriguez on those two visits what
is your opinion as to his mental capacity? A. That he was sick; that he was weak, but I
have found absolutely no incoherence in his ideas; he answered my questions well and as I
was observing him there were times when he did not remember things of the present
because this must be admitted but on the other hand he had a wonderful memory of past
events; in talking with him, you would not notice in the conversation any alteration in his mind
nor that man had lost the reasoning power or logic.

Q. Did you notice any loss of memory, or that his memory was weakening about things of the
past? A. About things of the past, I mean that you talk to him now about specific matters,
and after about five or ten minutes he no longer remembers what had been talked of.
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Q. Do you remember the conversation you had with him for the first time when the three of
you paid a visit to the patient? A. I don't remember the details, but I do remember the
questions I put to him. I asked D. Tomas Rodriguez: You are an old man aged, sick: Yes, I
am thinking to make a will. But why don't you decide? There is no hurry there is time to make
a will, 'he said. Then in case you decide to make a will, to whom are you going to leave your
property? Don't you have any relatives? I have a relative, Vicente Lopez, my first cousin, and
Margarita Lopez my first cousin they are brothers.' In that case, to whom, do you want to
leave your property? Why, I don't have much, very little, but I am decided to leave it to my
cousin, Vicente Lopez and his daughter Luz Lopez. Why would you not give anything to
Margarita Lopez? No because her husband is very bad, 'to use his exact language is very
bad.'
Q. Did you talk with him on that occasion about his estate? A. Yes, sir, he told me that he
had three estates, one on Calle Magallanes, another on Calle Cabildo and the third on
Calle Juan Luna and besides he had money in the Monte de Piedad and Hogar Filipino.
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Q. From the question made by you and the answers given by Mr. Tomas Rodriguez on that
occasion, what is your opinion as to his mental capacity? A. The following: That the
memory of Tomas Rodriguez somewhat failed as to things of the present, but is all right with
regard to matters or facts of the past; that his ideas were incoherent; that the thought with
logic, argued even with power and generally in some of the interviews I have arrived at the
conclusion that Tomas Rodriguez had an initiative of his own, did not need that anybody
should make him any suggestion because he answered in such a way that if you permit me
now to show you my stenographic notes, they will prove to you conclusively that he had an
initiative of his own and had no need of anybody making him any question. (S. R. p. 72.)
Doctor Elias Domingo, who was the attending physician for Tomas Rodriguez throughout all the time
that Rodriguez in the hospital had examined him, was likewise certain that Rodriguez possessed
sufficient mentality to make a will. Among other things, Doctor Domingo testified:
ARANETA: Q. Have you known D. Tomas Rodriguez?
Dr. DOMINGO: A. Yes, sir.
Q. Did you attend D. Tomas Rodriguez as physician? A. Yes, sir.
Q. When did you begin to attend him as physician? A. On November 28, until his death.
Q. On November 28 or October 28, 1923, do you remember? A. I had been attending him
as physician from November 28th although it true that I had opportunities to see and
examine him during the months of October and November.

Q. What was the object of your visits or attendance during the months of October and
November? A. It was for the purpose of observing his mental state.
Q. Did you really examine his mental condition or capacity during the months of October and
November? A. Yes, sir.
Q. How many times did you visit him? A. I don't remember exactly but I visited him about
five or six times.
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Q. Please tell us the result of your examination during those months of October and
November? A. I examined him physically and mentally; I am not going to tell here the
physically result but the result of the mental examination, and that is: General Conduct: In
most of the times that I have seen him I found him lying on his bed, smoking a cigarette and
asked for a bottle of lemonade from time to time; I also observed that he was very careful
when throwing the ash of the cigarette, seeing to it that it did not fall on the blankets; he also
was careful not to throw the stub of the cigarette in any place to avoid fire; I made more
observations as to his general conduct and I found that sometimes Don Tomas could move
within the place although with certain difficulty. On two occasions I found him seated, once
seated at the table, seated in the chair, and other on a rocking chair. I also examined his
manner of talking and to all questions that I put to him he answered with a coherence and in
a relevant manner, although sometimes he showed eagerness and certain delay. I based
these points of my declaration on the questions which are usually asked when making a
mental examination for instance I asked him, What is your name, 'and he correctly answered
Tomas Rodriguez; I asked him if he was married and he answered 'No;' I asked him his
profession and he answered that formerly he was an attorney but that at the time I was
making the examination he was not practising the profession; I asked him with what he
supported himself and he said that he lived upon his income, he said verbatim, 'I live on my
income.' I also asked him what the amount of him income was and he answered that it was
about P900; I asked him what the source of this income was and he said that it came from
his property.
Q. Did you ask him about his property? A. No, at that time.
Q. Proceed. A. I also observed his emotional status and effectivity. I found it rather
superficial, and he oftentimes got angry due to his physical disease; I asked him if he had
any relatives and he answered correctly saying that he had. He mentioned Vicente Lopez,
Margarita Lopez, and Luz Lopez. As to his memory. His memory of the past. He very easily
remembered past events and when he described them he did it with such pleasure the he
used to smile afterwards if it was a fact upon which one must smile, His memory of recent
facts was very much lessened. I say this because on various occasions and not having
known me when he had a better memory, after I had seen him thrice he remembered my
name and he recognized me. Insight and judgment. I arrived at the conclusion that he had
fair knowledge of himself because he knew that he was sick and could not be moving with
ease, but he believed that he could perform with sufficient ease mental acts; his judgment
was also all right because I asked him this question: 'Supposing that you could find a bill of
P5 in the vestibule of a hotel, what would you do with it ?' He told me that he would take the
bill and give it to the manager in order that the latter may look for the owner if possible. His
reasoning. I found that he showed a moderated retardation in the flow of his thought,
especially with regard to recent events, but was quite all right as to past events, His capacity,
He believed that he was capable of thinking properly although what did not permit him to do

so was his physical decrepit condition. The conclusion is that his memory is lost for recent
events tho not totally and diminution of his intellectual vigor. This is in few words the result of
my examination.
Tomas Rodriguez was likewise examined thoroughly by Doctors De los Angeles, Tietze, and Burke.
Doctor De los Angeles had been a witness in the gurardianship proceedings and had seen the
patient of November 6 and 7, 1923. Doctor Tietze had also been a witness in the guardianship case
and had visited the patient on November 9 and 12, 1923, and on January 15, 1924. Doctors Tietze
and Burke together examined Rodriguez on January 17, 20, and 24, 1924. The three physicians
conducted a joint examination result, on March 15, 1924, they prepared and signed the following:
MEDICAL CERTIFICATE
In the Matter of Tomas Rodriguez y Lopez, male, 76 years of age, single and residing or
being confined in the Philippine General Hospital.
We, the undersigned Doctors, Sixto de los Angeles, W. B. Burke, and Samuel Tietze, do
hereby certify as follows:
1. That we are physicians, duly registered under the Medical Act, and are in the actual
practice of the medical profession in the Philippines.
2. That on January 27th and 28th, and February 10th, 1924, at the Philippine General
Hospital, we three have with care the diligence jointly and personally examined the person of
said Tomas Rodriguez y Lopez; and previous to these dated, we have separately and partly
jointly observed and examined said patient on various occasions; Dr. Sixto de los Angeles, at
the patient's home, 246 Magallanes St., Manila, on November 6th and 7th , 1923; Dr.
Samuel Tietze, at the patient's home on November 9th and 12th, 1923, and at the Philippine
General Hospital no January 17th, 20th, and 24, 1924; and as a result of the medical
examinations and the history of the case we found and hereby certify to the following
conclusions:
(a) That he was of unsound mind suffering from senile dementia, or of mental impairment
exceeding to a pathological extent the unusual conditions and changes found to occur in the
involutional period of life.
(b) That he was under the influence of the above condition continuously, at least from
November, 1923, till the date of our joint reexamination, January 27th and 28th, and
February 10th, 1924; and that he would naturally have continued without improvement, as
these cases of insanity are due to organic pathological changes of the brain. This form of
mental disease is progressive in its pathological tendency, going on to progressive atropy
and degeneration of the brain, the mental symptoms, of course, running parallel with such
pathological basis.
(c) That on account of such disease and conditions his mind and memory were so greatly
impaired as to make him unable to know or to appreciate sufficiently the nature, effect, and
consequences of the business he was engaged in; to understand and comprehend the
extent and condition of his properties; to collect and to hold in his mind the particulars and
details of his business transactions and his relations to the persons who were or might have
been the objects of his bounty; and to free himself from the influences of importunities,
threats and ingenuities, so that with a relatively less resistance, he might had been induced
to do what others would not have done.

3. We have diagnosed this case as senile demential of the simple type, approaching the
deteriorated stage upon the following detailed mental examination:
(a) Disorder of memory. There was almost an absolute loss of memory of recent events,
to the extent that things and occurrences seen or observed only a few minutes previously
were completely forgotten. Faces and names of person introduced to him were not
remembered after a short moment even without leaving his bedside . He showed no
comprehension of the elemental routine required in the management of his properties, i.e.:
who were the lessees of his houses, what rents they were paying, who was the administrator
of his properties, in what banks he deposited his money or the amount of money deposited
in such banks. Regarding his personal relation, he forgot that Mr. Antonio Ventura is the
husband of his nearest woman cousin; the Mrs. Margarita Lopez was married, saying that
the latter was single or spinster, in spite of the fact that formerly, during the past twenty-five
years, he was aware of their marriage life, He did not know the names of the sons and
daughters of Mr. Vicente Lopez, one of his nearest relatives, even failing to name Mrs. Luz
Lopez de Bueno, a daughter of said Vicente Lopez, and who now appears to be the only
living beneficiary of his will. He also stated that Mr. Vicente Lopez frequently visited him in
the hospital, though the latter died on January 7th, 1924. He did not recognized and
remember the name and face of Doctor Domingo, his own physician. However, the memory
for remote events was generally good, which is a characteristic symptom of senile dementia.
(b) Disorientation of time, place and persons. He could not name the date when asked
(day or month); could not name the hospital wherein he was confined; and failed to
recognize the fact that Doctor Domingo was his physician.
(c) Disorders of perception. He was almost completely indifferent to what was going on
about him. He also failed to recognize the true value of objects shown him, that is he failed to
recognized the 'Saturday Evening Post' nor would he deny that it was a will when presented
as such. He also failed to show normal intellectual perception. Making no effort to correlate
facts or to understand matters discussed in their proper light.
(d) Emotional deterioration. The patient was not known during his time of physical
incapacity to express in any way or lament the fact that he was unable to enjoy the
happiness that was due him with his wealth. As a matter of fact, he showed complete
indifference. He showed loss of emotional control by furious outbreaks over trifling matter
and actually behaved like a child; for example, if his food did not arrive immediately of when
his cigar was not lit soon, he would becomes abusive in his language and show marked
emotional outburst. If the servants did not immediately answer his call, he would break down
and cry as a child.
(e) Symptoms of decreased intellectual capacity. There was a laxity of the internal
connection of ideas. The patient has shown no insight regarding his own condition. He did
not appreciate the attitude of the parties concerned in his case; he would on several
occasion become suspicious and fail to comprehend the purpose of our examination. He
was inconsistent in his ideas and failed to grasp the meaning of his own statements. When
questioned whether he would make a will, he stated to Doctor Tietze that he intended to
bequeath his money to San Juan de Dios Hospital and Hospicio de San Jose. When He was
informed, however, that he had made a will on January 31, 1924, he denied the latter
statement, and failed to explain the former. Although for a long time confined to bed and
seriously ill for a long period, he expressed himself as sound physically and mentally, and in
the false belief that he was fully able to administer his business personally.

His impairment of the intellectual field was further shown by his inability, despite his
knowledge of world affairs, to appreciate the relative value of the statement made by Doctor
Tietze as follows: 'We have here a cheque of P2,000 from the King of Africa payable to you
so that you may deposit it in the bank. Do you want to accept the cheque?' His answer was
as follows: 'Now I cannot give my answer. It may be a surprise.' Such answer given by a man
after long experience in business life, who had handled real estate property, well versed in
the transaction of cheques, certainly shows a breaking down of the above field. No proper
question were asked why the cheque was given by the King, who the King was, why he was
selected by the King of Africa, or if there is a King of Africa at present. He further shows
doubt in his mental capability by the following questions and answers:
"MARCAIDA: P. Tiene usted actualmente algn asunto en los tribunales de justicia
de Manila? -- R. No recuerdo en este momento.
"P. De tener usted algn asunto propio en los tribunales de justicia de Manila, a qu
abogado confiara usted la defensa del mismo?--R. Al Sr. Marcaida, como conocido
antiguo.
"P. Ha hablado usted y conferenciado alguna vez o varias veces en estos das, o
sea desde el 25 de octubre de 1923 hasta hoy, con algn abogado para que le
defendiera algn asunto ante el Juzgado de Primera Instancia de Manila?--R. Con
ninguno, porque en caso de nombrar, nombrara al Sr. Marcaida. (P. 5, deposition,
Nov. 19, 1923.)
"ARANETA: P. No recuerda usted que usted me ha encomendado como abogado
para que me oponga a que le declaren a usted loco o incapacitado?--R. S, seor,
quien ha solicitado? (P. 9, deposition, Nov. 19, 1923.)
"Dr. DOMINGO: P. Don Toms, me conoce usted? Se acuerda usted que soy el
Doctor Domingo?--R. S. (P. 7, sten. N., Jan. 28, 1924.)
"P. Quin soy, Don Toms, usted me conoce?--R. No s. (P. 6, sten. N., Feb. 10,
1924.)
"Dr. NGELES: P. Me conoce usted, D. Toms?--R. Le conozco de vista. (P. 6,
sten. N., Jan. 28, 1924.)
"P. Nos vamos a despedir ya, Don Toms, de usted. Yo soy el Doctor ngeles, me
conoce usted?--R. De nombre.
"P. Este es el Doctor Burke, le conoce usted?--R. De nombre.
"P. Este es el Doctor Domingo, le conoce usted?--R. De vista.
"P. Este es el Doctor Burke, recuerda usted su nombre?--R. No. (P. 10, sten. N.,
Jan. 28, 1924.)
"P.Usted conoce a este Doctor? (Sealando al Doctor Burke).--R. De vista; su
nombre ya lo he olvidado, ya no me acuerdo.
"P.Usted nos ve a los tres? (Doctores ngeles, Burke y Tietze).--R. Ya lo creo.

"Dr. BURKE: P. Qu profesin tenemos? (Sealando a los Sres. ngeles, Burke y

Tietze).--R. YO creo que son doctores.
"P. Y lso dos? (Sealando a los Doctores ngeles y Tietze).--R. No. s.
"P. Y este seor? (Sealando al Doctor ngeles).--R. No me acuerdo en este
momento. (P. 4. And 5, sten. N., Feb. 10, 1924.)
(f) Other facts bearing upon the history of the case obtained by investigation of Doctor
Angeles:
I. Family History. His parents were noted to be of nervous temper and irritable.
II. Personal history. He was a lawyer, but did not pursue his practice, devoting the greater
part of his life to collecting antiquities, He was generally regarded by his neighbors as
miserly and erratic in the ordinary habits of life. He lead a very unhygienic life, making no
attempt to clean the filth of dirt that was around him. He was neglectful in personal habits. On
April, 1921, he suffered an injury to his forehead, from which he became temporarily
unconscious, and was confined in the Philippine General Hospital for treatment. He
frequently complained of attacks of dizziness and headache, following this injury; suffered
form a large hernia; and about two years ago, he was fined for failure in filing his income tax,
from which incident, we have reason to believe, the onset of his mental condition took place.
This incident itself can most probably be considered as a failure of memory. His condition
became progressively worse up to his death.
4. The undersigned have stated all the above facts contained in this certificate to the best of
our knowledge and belief.
Manila, P.I., March 15, 1924.
(Sgd.) SIXTO DE LOS ANGELES
W.B. BURKE, M.D.
SAMUEL TIETZE
(Exhibit 33 in relation with Exhibits 28 and 29.)
Another angle to the condition of the patient on or about January 3, 1924, is disclosed by the
treatment record kept daily by the nurses, in which appear the nurse's remarks. (Exhibits 8-A, 8-B,
and 8-C.) In this connection, the testimony of the nurses is that Rodriguez was in the habit for no
reason at all of calling "Maria, where are my 50 centavos, where is my key." In explanation of the
observation made by the nurses, the nurse Apolonio Floreza testified.
Direct questions of Attorney OCAMPO:
Q. Among your observations on the 1st of January, 1924, you say 'with pains all over the
body, and uttered some incoherent words of the same topics whenever is awakened.' How
could you observe that he had pains all over the body?
APOLONIO FLOREZA, nurse: A. I observed that by the fact that whenever I touched the
body of the patient he complained of some pain.

Q. On what part of the body did you touch him? A. On all the parts of his body.
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Q. How did you touch him, strongly or not? A. Slightly.

Q. When you touched him slightly, what did he do? A. He said that it was aching.
Q. What words did he say when, according to your note, he uttered incoherent words
whenever he awakes? A. As for instance, 'Maria,' repeating it 'Where are my 50 centavos,
where is my key?'
Q. Did you hear him talk of Maria? A. Only the word Maria.
Q. How long approximately was he talking uttering the name of 'Maria, Where are my 50
centavos,' and where is my key? A. For two or three minutes.
Q. Can you tell the court whether on those occasions when he said the name of Maria he
said other words and was talking with somebody? A. He was talking to himself.
Q. This remark on Exhibit 8-B when was it written by you? A. January 2, 1924.
Q. In the observation correspondingly to January 2, 1924 you say, 'With pains over the body,'
and later on talked too much whenever patient is awakened.' How did you happen to know
the pain which you have noted here? A. The pains all over the body, I have observed them
when giving him baths.
Q. Besides saying that it ached when you touched the body, do you know whether he did any
extraordinary thing? A. You mean to say acts?
Q. Acts or words? A. Yes, sir, like those words which I have already said which he used to
say Maria, the key, 50 centavos.
Q. You say that he called Maria. What did he say about Maria on that date January 2, 1924?
A. He used to say Maria where is Maria?
Q. On that date January 2, 1924, did you answer him when he said Maria? A. No sir.
Q. In this observation of yours appearing on page 8-C you say among other things with pain
all over the body and shouted whenever he is given injection.' Did you really observe this in
the patient? A. Yes, sir.
Q. How did he shout?
ARANETA: Objection as being immaterial.
COURT: Overruled.
ARANETA: Exception.

A. In a loud voice.
Q. Besides shouting do you remember whether he said anything? A . He repeated the
same words I have said before Maria the 50 centavos the key.
Q. When did this observation occur which appear on page 8-C? A. On January 3, 1924.
(S. R. p. 5595.)
On certain facts pertaining to the condition of Tomas Rodriguez there is no dispute. On January 3,
1924, Rodriguez had reached the advanced age of 76 years. He was suffering from anemia, hernia
inguinal, chronic dypsia, and senility. Physically he was a wreck.
As to the mental state of Tomas Rodriguez on January 3, 1924, Doctors Calderon, Domingo and
Herrera admit that he was senile. They, together with Doctors De los Angeles, Tietze, and Burke,
further declare that his memory however for remote events was generally good. He was given to
irrational exclamations symptomatic of a deceased mind.
While, however, Doctors Calderon Domingo, and Herrera certify that the intellectual faculties of the
patient are "sound, except that his memory is weak," and that in executing the will the testator had
full understanding of the act he was performing and full knowledge of the contents thereof, Doctors
De Los Angeles, Tietze and Burke certify that Tomas Rodriguez was of unsound mind and that they
diagnosed his case as senile dementia of the simple type approaching the deteriorated stage.
Without attempting at this stage to pass in judgment on the antagonistic conclusions of the medical
witnesses, or on other disputed point, insofar as the facts are concerned, a resolution of the case
comes down to this: Did Tomas Rodriguez on January 3, 1924, possess sufficient mentality to make
a will, or had he passed so far along in senile dementia as to require the court to find him of
unsound? We leave the facts in this situation to pass on to a discussion of the legal phases of the
case.
B. Law. The Code of Civil Procedure prescribes as a requisite to the allowance of a will that the
testator be of "sound mind" (Code of Civil Procedure, sec. 614). A "sound mind" is a "disposing
mind." One of the grounds for disallowing a will is "If the testator was insane or otherwise mentally
incapable of the execution." (Code of Civil Procedure, sec. 634 [2].) Predicated on these statutory
provisions, this court has adopted the following definition of testamentary capacity: "'Testamentary
capacity is the capacity to comprehend the nature of the transaction in which the testator is engaged
at the time, to recollect the property to be disposed of and the persons who would naturally be
supposed to have claims upon the testator, and to comprehend the manner in which the instrument
will distribute his property among the objects of his bounty.'" (Bugnao vs. Ubag [1909], 14 Phil., 163,
followed in Bagtas vs. Paguio [1912], 46 Phil., 701.) The mental capacity of the testator is
determined as of the date of the execution of his will (Civil Code, art. 666).
Various tests of testamentary capacity have been announced by the courts only later to be rejected
as incomplete. Of the specific tests of capacity, neither old age, physical infirmities, feebleness of
mind, weakness of the memory, the appointment of a guardian, nor eccentricities are sufficient singly
or jointly to show testamentary incapacity. Each case rests on its own facts and must be decided by
its own facts.
There is one particular test relative to the capacity to make a will which is of some practical utility.
This rule concerns the nature and rationality of the will. Is the will simple or complicated? Is it natural
or unnatural? The mere exclusion of heirs will not, however, in itself indicate that the will was the
offspring of an unsound mind.

On the issue of testamentary capacity, the evidence should be permitted to take a wide range in
order that all facts may be brought out which will assist in determining the question. The testimony of
subscribing witnesses to a will concerning the testator's mental condition is entitled to great weight
where they are truthful and intelligent. The evidence of those present at the execution of the will and
of the attending physician is also to be relied upon. (Alexander on Willis, vol. I, pp. 433, 484;
Wharton & Stille's Medical Jurisprudence, vol. I pp. 100 et seq.)
The presumption is that every adult is sane. It is only when those seeking to overthrow the will have
clearly established the charge of mental incapacity that the courts will intervene to set aside a
testamentary document. (Hernaez vs. Hernaez [1903], 1 Phil., 689; Bagtas vs. Paguio, supra.)
Counsel for the appellee make capital of the testator being under guardianship at the time he made
his will. Citing section 306 of the Code of Civil Procedure and certain authorities, they insist that the
effect of the judgment is conclusive with respect to the condition of the person. To this statement we
cannot write down our conformity. The provisions of the cited section were taken from California, and
there the Supreme court has never held what is now urged upon us by the appellee. The rule
announced that in some states, by force of statute, the finding of insanity is conclusive as to the
existence of insanity during the continuance of adjudication, is found to rest on local statutes, of
which no counterpart is found in the Philippines. (32 C.J., 647; Gridley vs. Boggs [1882], 62 Cal.,
190; In the matter of the Estate of Johnson [1881], 57 Cal., 529.) Even where the question of
insanity is out in issue in the guardianship proceedings, the most that can be said for the finding is
that it raises a presumption of incapacity to make a will but does not invaluable the testament if
competency can be shown. The burden of providing sanity in such case is cast upon the proponents.
It is here claimed that the unsoundness of mind of the testator was the result of senile dementia.
This is the form of mental decay of the aged upon which will are most often contested. A Newton,
Paschal, a Cooley suffering under the variable weather of the mind, the flying vapors of incipient
lunacy," would have proved historic subjects for expert dispute. Had Shakespeare's King Lear made
a will, without any question it would have invited litigation and doubt.
Senile dementia usually called childishness has various forms and stages. To constitute
complete senile dementiathere must be such failure of the mind as to deprive the testator of
intelligent action,. In the first stages of the diseases, a person may possess reason and have will
power. (27 L. R. A., N. S. [1910], p. 89; Wharton & Stille's Medical Jurisprudence, vol. I. pp. 791 et
seq.; Schouler on Wills, vol. I, pp. 145 et seq.)
It is a rather remarkable coincidence that of all the leading cases which have gone forth from this
court, relating to the testator having a sound and disposing mind, and which have been brought to
our notice by counsel, every one of them has allowed the will, even when it was necessary to
reverse the judgment of the trial court. A study of these cases discloses a consistent tendency to
protect the wishes of the deceased whenever it be legally possible. These decisions also show great
tenderness on the part of the court towards the last will and testament of the aged. (See Hernaez vs.
Hernaez [1903], 1 Phil., 689, per Arellano, C. J., In the matter of the will o f Butalid [1908] 10 Phil.,
27 per Arellano, C. J.; Bugnao vs. Ubag [1909] 14. Phil., 163, per Carson, J.; Macapinlac vs.
Alimurong [1910], 16 Phil., 41, per Arellano, C.J.; Bagtas vs. Paguio [1912], 22 Phil., 227, per Trent,
J.; Galvez vs. Galvez [1913], 26 Phil., 243, per Torres, J.; Samson vs. Corrales Tan Quintin [1923],
44 Phil., 573, per Ostrand, J.; and Jocson vs. Jocson [1922], 46 Phil., 701, per Villamor, J.) Because
of their peculiar applicability, we propose to make particular mention of four of the earlier cases of
this court.
In the case of Hernaez vs. Hernaez supra the subject of the action was the will executed by Dona
Juana Espinosa. The annulment of the will was sought first upon the ground of the incapacity of the

testatrix. She was over 80 years of age, so ill that three days extreme unction, and two days
afterwards she died. Prior thereto she walked in a stooping attitude and gave contradictory orders,"
as a result of her senile debility." The chief Justice reached the conclusion that neither from the facts
elicited by the interrogatories nor the documents presented "can the conclusion be reached that the
testatrix was deprived of her mental faculties." The will was held valid and efficacious.
In the case of In the matter of the will of Butalid, supra, the will was contested for the reason that
Dominga Butalid at the date of the execution of the document was not in the date of the execution of
the document was not in the free use of her intellectual powers, she being over 90 years of age,
lying in bed seriously ill, senseless and unable to utter a single word so that she did not know what
she was doing when she executed the will while the document was claimed to have been executed
under the influence and by the direction of one of the heirs designated in the will. Yet after an
examination of the evidence in the will. Yet after an examination of the evidence in the will. The Chief
Justice rendered judgment reversing the judgment appealed from and declaring the will presented
for legalization to be valid and sufficient.
In the case of Bugnao vs. Ubag, supra the court gave credence to the testimony of the subscribing
witnesses who swore positively that at the time of the execution of the will the testator was of sound
mind and memory. Based on these and other facts, Mr. Justice Carson, speaking for court, laid down
the following legal principles:
Between the highest degree of soundness of mind and memory which unquestionably
carries with it full testamentary known as insanity or idiocy there are numberless degrees of
mental capacity or incapacity and while on one hand it had been held that mere weakness of
mind or partial imbecility from disease of body, or from age, will to render a person incapable
of making a will a weak or feeble minded person may make a valid will provided he has
understanding and memory sufficient to enable him to know what he is about and how or to
whom he is disposing of his property' (Lodge vs. Lodge, 2 Houst. [Del.] 418); that, "To
constitute a sound be unbroken or unimpaired, unshattered by disease or otherwise (Sloan
vs. Maxwell, # N. J. Eq., 563); that it has not been understood that a testator must possess
these qualities (of sound and disposing mind and memory) in the highest degree. . . .Few
indeed would be the wills confirmed it this is correct. Pain, sickness, debility of body from age
or infirmity, would according to its violence or duration in a greater or less degree, break in
upon, weaken, or derange the mind, but the derangement must be such as deprives him of
the rational faculties common to man' (Den. vs. Vancleve, 5 N. J. L., 680); and that Sound
mind does not mean a perfectly balanced mind. The question of soundness is one of degree'
(Boughton vs. Knight. L. R., 3 P. & D., 64; 42 L. P. P., 25); on the other hand, it has been held
that testamentary incapacity does not necessarily require that a person shall actually be
insane or of an unsound mind. Weakness of intellect, whether it arises from extreme old age,
from disease, or great bodily infirmities of suffering, or from all these combined, may render
the testator in capable of making a valid will, providing such weakness really disqualifies for
from knowing or appreciating the nature, effects, or consequences of the act she is engaged
in (Manatt vs. Scott, 106 Iowa, 203; 68 Am. St. Rep., 293, 302).
In the case of Nagtas vs. Paquio, supra, the record shows that the testator for some fourteen or
fifteen years prior to the time of his death suffered from a paralysis of the left side of his body, that a
few years prior to his death his hearing became impaired and that he had lost the power of speech.
However, he retained the use of his hand and could write fairly well. Through the medium of signs,
he was able to indicate his wishes to his family. The will was attacked n the ground that the testator
lacked mental capacity at the time of its execution. The will was nevertheless admitted to probate,
Mr. Justice Trent, speaking for the court, announcement the following pertinent legal doctrines:

* * * There are many cases and authorities which we might cite to show that the courts have
repeatedly held that mere weakness of mind and body, induced by age and disease do not
render a person incapable of making a will. The law does not require that a person shall
continue in the full enjoyment and use of his pristine physical and mental powers in order to
execute a valid will. If such were the legal standard few indeed would be the number of wills
that could meet such exacting requirements. The authorities, both medical and legal are
universal in the statement that the question of mental capacity is one of degree and that
there are many graduations from the highest degree of mental soundness to the lowest
conditions of diseased mentality which are denominated as insanity and idiocy.
The right to dispose of property by testamentary disposition is as sacred as any other right
which a person may exercise and this right should be nullified unless mental incapacity is
established in a positive and conclusive manner. In discussing the question of testamentary
capacity, it is stated in volume 28, page 70, of the American and English Encyclopedia of
Law that
'Contrary to the very prevalent lay impression perfect soundness of mind is not essential to
testamentary capacity. A testator may be afflicted with a variety of mental weakness,
disorders or peculiarities and still be capable in law of executing a valid will.' (See the
numerous cases there cited in support of this statement.)
The rule relating to testamentary capacity is stated in Buswel on Insanity, section 365 and
quoted with approval in Campbell vs. Campbell (130 Ill. 466) as follows:
To constitute a sound and disposing mind, it is not necessary that the mind shall be wholly
unbroken unimpaired or unshattered by disease or otherwise or that the testator should be in
the full possession of his reasoning faculties.
In note, 1 Jarnan on Wills, 38, the rule is thus stated:
The question is not so much, what was the degree of memory possessed by the testator as
had, he a disposing memory? Was he able to remember the property he was about to
bequeth the manner of distributing it and the object of his bounty? In a word, were his mind
and memory sufficiently sound to enable him to know and understand the business in which
he was engaged at the time when he executed his will.' (See authorities there cited)
In Wilson vs. Mitchell (101 Penn., 495), the following facts appeared upon the trial of the
case: The testator died at the age of nearly 102 years. In his early years he was an intelligent
and well informed man. About seven years prior to his death he suffered a paralytic stroke
and from that time his mind and memory were much enfeebled. He became very dull of
hearing and in consequence of the shrinking of his brain he was affected with senile cataract
causing total blindness. He became filthy and obscene in his habits, although formerly he
was observant of the proprieties of life. The court, in commenting upon the case, said:
Neither age, nor sickness, nor extreme distress, nor debility of body will affect the capacity to
make a will, if sufficient intelligence remains. The failure of memory is not sufficient to create
the incapacity, unless it be total or extend to his immediate family to property. . . .
xxx

xxx

xxx

Dougal (the testator) had lived over one hundred years before he made the will and his
physical and mental weakness and defective memory were in striking contrast with their
strength in the meridian of his life. He was blind; not deaf, but hearing impaired; his mind
acted slowly, he was forgetful of recent events, especially of names and repeated questions
in conversation; and sometimes, when aroused from sleep or slumber, would seem
bewildered. It is not singular that some of those who had known him when he was
remarkable for vigor and intelligence are of the opinion that his reason was so far gone that
he was incapable of making a will, although they never heard him utter an irrational
expression.
In the above case the will was sustained. In the case at bar we might draw the same contract
as was pictured by the court in the case just quoted. . . .
The particular difference between all of the Philippine case which are cited and the case at bar are
that in none of the Philippine cases was there any declaration of incomplicated and in none of them
were the facts quite as complicated as they are here. A case in point where the will was contested,
because the testator was not of sound and disposing mind and memory and because at the time of
the making of the will he was acting under the undue influence of his brothers and where he had a
guardian when he executed his will, is Ames' Will ([1902] 40 Ore., 495). Mr. Justice Moore, delivering
the opinion of the court, in part said:
It is contended by contestant's counsel that on the day said pretended will purports to have
been executed, Lowell was declared incompetent by a court which had jurisdiction of the
person and subject-matter and that the decree therein appointing a guardian of his person
and estate raises the distable presumption that he did not possess sufficient testamentary
capacity at the time to overcome which required evidence so strong as to leave no
reasonable doubt as to his capacity to make a valid will, and the testimony introduced by the
proponent being insufficient for that purpose the court erred in admitting it to probate.
The appointment of a guardian of a person alleged to be non compos mentis, by a court
having jurisdiction must necessarily create a presumption of the mental infirmity of the ward;
but such decree does not conclusively show that the testamentary capacity of the person
under guardianship is entirely destroyed and the presumption thus created may be
overcome by evidence proving that such person at the time he executed a will was in fact of
sound and disposing mind and memory: Stone vs. Damon, 12 Mass., 487; Breed vs. Pratt,
18 Pick, 115: In re Slinger's Will, 72 Wis., 22 (37 N. W. 236).
The testimony shows that the testator retained a vivid recollection of the contents of the
books he had read and studied when he was young but that he could not readily recall to his
mind the ordinary incidents of his later life. The depth and intensity of mental impression
always depend upon and are measured by the degree of attention given to the perception of
truth, which demands reflection; and hence the inability of a person to recollect events and
hence the inability is evidence of mental decay, because it manifest a want of power on
concentration of the mind. The aged live in the past and the impression retained in their
minds are those that were made in their younger days, because at that period of their lives
they were able to exercise will power by giving attention. While the inability of a person of
advanced years to remember recent events distinctly undoubtedly indicates a decay of the
human faculties, it does not conclusively establish senile dementia, which is something more
than a mere loss of mental power, resulting from old age and is not only a feeble condition of
the mind but a derangement thereof. . . . The rule is settled in this state that if a testator at
the time he executes his will understand the business in which he is engaged and has a
knowledge of his property and how he wishes to dispose of it among those entitled to his

bounty, he possess sufficient testamentary capacity, notwithstanding his old age, sickness
debility of body, or extreme distress.
xxx

xxx

xxx

It is contented by contestant's counsel that if Lowell at the time he executed the pretended
will, was not wholly lacking in testamentary capacity, he was, in consequence of age ill
health, debility of body and infirmity of will power, Andrew and Joseph having knowledge
thereof took advantage of his physical and mental condition and unduly influenced him to
device and bequeth his property in the manner indicated, attempting thereby to deprive the
contestant of all interest therein except such as was given her by statute. . . . Assuming that
he was easily persuaded and that his brothers and the persons employed by them to care for
him took advantage of his enfeebled condition and prejudiced his mind against the
contestant did such undue influence render the will therefore executed void? . . . When a will
has been properly executed, it is the duty of the courts to uphold it, if the testator possessed
a sound and disposing mind and memory and was free from restraint and not acting under
undue influence notwithstanding sympathy for persons legally entitled to the testator's bounty
and a sense of innate justice might suggest a different testamentary disposition.
Believing, as we do, that the findings of the circuit court are supported by the weight of the
testimony its decree is affirmed.
Insofar as the law on testamentary capacity to make a will is concerned and carrying alone one step
further the question suggested at the end of the presentation of the facts on the same subject a
resolution of the case comes down to this: Did Tomas Rodriguez on January 3, 1924, possess
sufficient mentality to make a will which would meet the legal test regarding testamentary capacity
and have the proponents of the will carried successfully the burden of proof and shown him to be of
sound mind on that date?
II. UNDUE INFLUENCE
A. Facts. The will was attacked on the further ground of undue influence exercised by the persons
benefited in the will in collaboration with others. The trial judge found this allegation to have been
established and made it one of the bases of his decision. it is now for us to say if the facts justify this
finding.
Tomas Rodriguez voluntary named Vicente F. Lopez as his administrator. The latter subsequently
became his guardian. There is every indication that of all his relatives Tomas Rodriguez reposed the
most confidence in Vicente F. Lopez and his daughter Luz Lopez de Bueno. Again, it was Vicente F.
Lopez, who, on the suggestion of Rodriguez secured Maximino Mina to prepare the will, and it was
Luz Lopez de Bueno who appears to have gathered the witnesses and physicians for the execution
of the will. This faction of the Lopez family was also a favor through the orders of Doctor Domingo as
to who could be admitted to see the patient.
The trial judge entertained the opinion that there existed "a preconceived plan on the part of the
persons who surrounded Tomas Rodriguez" to secure his signature to the testament. The trial judge
may be correct in this supposition. It is hard to believe, however, that men of the standing of Judge
Mina, Doctors Calderon, Domingo, Herrera, and De Asis and Mr. Legarda would so demean
themselves and so fully their characters and reputation as to participate in a scheme having for its
purpose to delude and to betray an old man in his age, rather named was acting according to the
best of his ability to assist in a legitimate act in a legitimate manner. Moreover, considering the
attitude of Tomas Rodriguez toward Margarita Lopez and her husband and his apparent enmity

toward them, it seems fairly evident that even if the will had been made in previous years when
Rodriguez was more nearly in his prime, he would have prepared somewhat a similar document.
B. LAW. One of the grounds for disallowing a will is that it was procured by undue and improper
pressure and influence on the art of the beneficiary or some other person for his benefit (Code of
Civil Procedure, sec., 634[4]). Undue influence, as here mentioned in connection with the law of wills
and as further mentioned in the Civil Code (art. 1265), may be defined as that which compelled the
testator to do that which is against the will from fear the desire of peace or from other feeling which
is unable to resist.
The theory of undue influence is totally rejected as not proved.
III. JUDGMENT
To restate the combined issued of fact and law in this case pertaining to testamentary capacity: Did
Tomas Rodriguez on January 3, 1924, possess sufficient mentality to make a will which would meet
the legal test regarding testamentary capacity and have the proponents of the will carried
successfully the burden of proof and shown him to be of sound mind on that date?
Two of the subscribing witnesses to the will, one a physician clearly to the regular manner in which
the will was executed and to the testator's mental condition. The other subscribing witness, also, a
physician on the contrary testified to a fact which, if substantiated, would require the court to disallow
the will. The attending physician and three other eminent members of the medical fraternity, who
were present at the execution of the will, expressed opinions entirely favorable to the capacity of the
testator. As against this we have the professional speculations of three other equally eminent
members of the medical profession when the will was executed. The advantage on those facts is all
with those who offer the will for probate.
The will was short. It could easily be understood by a person in physical distress. It was reasonable,
that is, it was reasonable if we take into account the evident prejustice of the testator against the
husband of Margarita Lopez.
With special reference of the definition of testamentary capacity, we may say this: On January 3,
1924, Tomas Rodriguez, in our opinion comprehended the nature of the transaction in which he was
engaged. He had two conferences with his lawyer, Judge Mina, and knew what the will was to
contain. The will was read to him by Mr. Legarda. He signed the will and its two copies in the proper
places at the bottom and on the left margin. At that time the testator recollected the property to be
disposed of and the persons who would naturally be supposed to have claims upon him While for
some months prior to the making of the will he had not manage his property he seem to have
retained a distinct recollection of what it consisted and of his income. Occasionally his memory failed
him with reference to the names of his relatives. Ordinarily, he knew who they were, he seemed to
entertain a prediliction towards Vicente F. Lopez as would be natural since Lopez was nearest in
which the instrument distributed the property naming the objects of his bounty. His conversations
with Judge Mina disclosed as insistence on giving all of his property to the two persons whom he
specified.
On January 3, 1924, Tomas Rodriguez may have been of advanced years, may have been
physically decrepit, may have been weak in intellect, may have suffered a loss of memory, may have
had a guardian and may have a been extremely eccentric, but he still possessed the spark of reason
and of life, that strength of mind to form a fixed intention and to summon his enfeebled thoughts to
enforce that intention, which the law terms "testamentary capacity." That in effect is the definite
opinion which we reach after an exhaustive and exhausting study of a tedious record, after weighing

the evidence for the oppositors, and after giving to the case the serious consideration which it
deserves.
The judgment of the trial court will be set aside and the will of Tomas Rodriguez will be admitted to
probate without special pronouncement as to costs in this instance.
Avancea, C. J., Johnson, Villamor, Johns, Romualdez, and Villa-Real, JJ., concur.

Separate Opinions
STREET AND OSTRAND, JJ., dissenting:
We are of the opinion that the judgment which is the subject of appeal in this case is in all respects
correct and should be affirmed. The testator was clearly suffering from senile dementia and lacked
the "disposing mind and memory" the possession of which is a condition precedent to the exercise of
testamentary power.

The Lawphil Project - Arellano Law Foundation

Republic of the Philippines
SUPREME COURT
Manila
FIRST DIVISION
G.R. No. 61167-68 January 20, 1989
IN THE MATTER OF THE PETITION TO APPROVE THE WILL OF FRANCISCO BENITEZ,
DECEASED, AND PETITION FOR LETTERS OF ADMINISTRATION: FIDELA DE GUZMAN and
EMETERIO DE GUZMAN,petitioners,
vs.
IN THE MATTER OF THE INTESTATE ESTATE OF THE DECEASED FRANCISCO BENITEZ,
DIONISIA VALENZUELA and MELQUIADES VALENZUELA respondents.
Tanjuatco, Oreta, Tanjuatco & Factoran for petitioners.
Tomas P. Anonuevo for respondents.

GRIO-AQUINO, J.:
The petitioners have appealed the decision of the Court of Appeals affirming that of the Court of First
Instance of Laguna in Special Proceedings Nos. SC-347 and 352, disallowing the will of Francisco
Benitez, and appointing Dionisia Valenzuela administratrix of his intestate estate.

On December 10, 1970, Dionisia Valenzuela and her brother, Melquiades Valenzuela, first-cousins of
the deceased Francisco Benitez, filed in the Court of First Instance of Laguna, Branch IV, (docketed
as SC-347) a petition for administration of his intestate estate and for the issuance of letters of
administration to Dionisia who, during the lifetime of the deceased, had been administering the said
estate as judicial guardian of his person and property duly appointed on January 22, 1957 in Spl.
Proc. No. SC-29 of the Court of First Instance of Laguna.
Francisco Benitez was the only surviving child of the spouses Tiu Cuaco, alias Pascual Benitez, and
Camila Valenzuela whose brother was the father of private respondents, Dionisia Valenzuela and
Melquiades Valenzuela. He died single at the age of 61 years on November 6, 1970, without
descendants, nor ascendants, nor brothers and sisters. He left an estate consisting of fourteen (14)
parcels of coconut land in Laguna, with a total area of 34 hectares, a residential lot on S. Crisostomo
Street in the poblacion of Pagsanjan, Laguna, and a small savings account (P3,843.08) in the
Philippine National Bank.
The petition for administration was opposed by Emiterio de Guzman on the ground that the
deceased left a will bequeathing his entire estate to him (De Guzman) and that a petition for its
probate was docketed as Spl. Proc. No. 352 in Branch II of the same court the two cases were later
consolidated and jointly heard in Branch IV of the court.
Emiterio de Guzman died on April 20, 1973 and was substituted by his heirs, Fidel, Cresencia and
Rosalie, all surnamed De Guzman, in both proceedings.
In support of the petition for probate (SC-352), the petitioner Fidel de Guzman and two attesting
witnesses of the will, Pelagio Lucena and Judge Damaso Tengco who prepared the will, gave
evidence.
The oppositors (petitioners for administration in SC-347) presented six (6) witnesses, namely,
Marcial Mendoza, Pedro Cabela, Porfirio Reyes, Dionisia Valenzuela, Honoria Recalde Leonardo
and Prudencio Leonardo, who identified the transcript of the testimony given on January 22, 1957 by
Dr. Jose A. Fernandez (since deceased) in the proceedings (SC-29) for the guardianship of
Francisco Benitez for incompetence on account of insanity. Various documentary exhibits were
presented by both sides.
On April 4, 1975, Judge Maximo Maceren rendered judgment disallowing the will and appointing
Dionisia Valenzuela administratrix of the intestate estate of the deceased. The pertinent findings of
the trial court are quoted hereunder:
The pivotal issue hinges on the mental capacity of the supposed testator, Francisco
Benitez on August 18, 1945 when he allegedly executed his last will and testament.
Did Francisco Benitez possess a sound and disposing mind on August 18, 1945?
xxx xxx xxx
The evidence (Exhibit I and Exhibit H) shows that from January 18, 1929 up to March
12, 1941 Francisco Benitez was confined at the National Mental Hospital for varying
periods of time as follows:
DATE OF ADMISSION DATE OF DISCHARGE
(a) January 18, 1929 March 12,1929

(b) March 7, 1931 June 6, 1931

(c) November 12,1936 November 29, 1937
(d) February 16, 1938 August 16, 1939
(e) July 9, 1940 March 12, 1941
xxx xxx xxx
The foregoing premises leads this Court to the conclusion that [at] the time Francisco
Benitez executed his supposed will on August 18, 1945 he was not possessed of a
sound and disposing mind. Wherefore the same is not allowed probate.' (pp. 123,
124 and 126, Rollo.)
On appeal to the Court of Appeals, the decision was affirmed by that Court on March 3, 1982 (p.
135, Rollo).
The petitioners De Guzman assail the decision of the Court of Appeals on the ground that:
The finding that the deceased Francisco Benitez 'was not possessed of a sound and
disposing mind' when he executed his will on August 18, 1945, is grounded merely
on speculation, surmises and conjectures, as well as on hearsay and contradictory,
biased, and obviously incredible testimony. (p. 10, Rollo.)
Plainly, the petition raises a purely factual issue, which We are not at liberty to review because in an
appeal by certiorari under Rule 45 of the Rules of Court only questions of law which must be
distinctly set forth, may be raised. In any event, the decision of the Court of Appeals reveals that that
Court carefully weighed the evidence on the question of the testamentary capacity, or lack of it, of
the deceased Francisco Benitez and found "no compelling reason to disturb the lower court's
findings and conclusions." The resolution of that question hinged on the credibility of the witnesses.
The cardinal rule on that point is that the trial courts, assessment of the credibility of witnesses while
testifying is generally binding on the appellate court because of its superior advantage in observing
their conduct and demeanor and its findings, when supported by convincingly credible evidence,
shall not be disturbed on appeal (People vs. Dava, 149 SCRA 582)
WHEREFORE, the petition for review is denied for lack of merit. Costs against the petitioners Fidel,
Crisencia and Rosalia de Guzman.
SO ORDERED.
Narvasa, Cruz, Gancayco and Medialdea, JJ., concu
Republic of the Philippines
SUPREME COURT
Manila
THIRD DIVISION
G.R. No. 122880

April 12, 2006

FELIX AZUELA, Petitioner,

vs.
COURT OF APPEALS, GERALDA AIDA CASTILLO substituted by ERNESTO G.
CASTILLO, Respondents.
DECISION
TINGA, J.:
The core of this petition is a highly defective notarial will, purportedly executed by Eugenia E. Igsolo
(decedent), who died on 16 December 1982 at the age of 80. In refusing to give legal recognition to
the due execution of this document, the Court is provided the opportunity to assert a few important
doctrinal rules in the execution of notarial wills, all self-evident in view of Articles 805 and 806 of the
Civil Code.
A will whose attestation clause does not contain the number of pages on which the will is
written is fatally defective. A will whose attestation clause is not signed by the instrumental
witnesses is fatally defective. And perhaps most importantly, a will which does not contain an
acknowledgment, but a merejurat, is fatally defective. Any one of these defects is sufficient to
deny probate. A notarial will with all three defects is just aching for judicial rejection.
There is a distinct and consequential reason the Civil Code provides a comprehensive catalog of
imperatives for the proper execution of a notarial will. Full and faithful compliance with all the
detailed requisites under Article 805 of the Code leave little room for doubt as to the validity in the
due execution of the notarial will. Article 806 likewise imposes another safeguard to the validity of
notarial wills that they be acknowledged before a notary public by the testator and the witnesses.
A notarial will executed with indifference to these two codal provisions opens itself to nagging
questions as to its legitimacy.
The case stems from a petition for probate filed on 10 April 1984 with the Regional Trial Court (RTC)
of Manila. The petition filed by petitioner Felix Azuela sought to admit to probate the notarial will of
Eugenia E. Igsolo, which was notarized on 10 June 1981. Petitioner is the son of the cousin of the
decedent.
The will, consisting of two (2) pages and written in the vernacular Pilipino, read in full:
HULING HABILIN NI EUGENIA E. IGSOLO
SA NGALAN NG MAYKAPAL, AMEN:
AKO, si EUGENIA E. IGSOLO, nakatira sa 500 San Diego St., Sampaloc, Manila, pitongput siyam
(79) na gulang, nasa hustong pagi-isip, pag-unawa at memoria ay nag-hahayag na ito na ang aking
huling habilin at testamento, at binabali wala ko lahat ang naunang ginawang habilin o testamento:
Una-Hinihiling ko na ako ay mailibing sa Sementerio del Norte, La Loma sang-ayong sa kaugalian at
patakaran ng simbahang katoliko at ang taga-pag-ingat (Executor) ng habiling ito ay magtatayo ng
bantayog upang silbing ala-ala sa akin ng aking pamilya at kaibigan;
Pangalawa-Aking ipinagkakaloob at isinasalin ang lahat ng karapatan sa aking pamangkin na si
Felix Azuela, na siyang nag-alaga sa akin sa mahabang panahon, yaong mga bahay na nakatirik sa
lote numero 28, Block 24 at nakapangalan sa Pechaten Korporasyon, ganoon din ibinibigay ko ang

lahat ng karapatan sa bahay na nakatirik sa inoopahan kong lote, numero 43, Block 24 na pag-aari
ng Pechaten Corporation. Ipinagkakaloob kong buong buo ang lahat ng karapatan sa bahay at lupa
na nasa 500 San Diego St., Lot 42, Block 24, Sampaloc, Manila kay Felix Azuela at ang
pagkakaloob kong ito ay walang pasubalit at kondiciones;
Pangatlo- Na ninunumbrahan ko si VART PAGUE na siyang nagpapatupad ng huling habiling ito at
kagustuhan ko rin na hindi na kailanman siyang mag-lagak ng piyansiya.
Aking nilagdaan ang Huling Habilin na ito dito sa Maynila ika 10 ng Hunyo, 1981.
(Sgd.)
EUGENIA E. IGSOLO
(Tagapagmana)
PATUNAY NG MGA SAKSI
Ang kasulatang ito, na binubuo ng ____ dahon pati ang huling dahong ito, na ipinahayag sa amin ni
Eugenia E. Igsolo, tagapagmana na siya niyang Huling Habilin, ngayon ika-10 ng Hunyo 1981, ay
nilagdaan ng nasabing tagapagmana sa ilalim ng kasulatang nabanggit at sa kaliwang panig ng
lahat at bawat dahon, sa harap ng lahat at bawat sa amin, at kami namang mga saksi ay lumagda
sa harap ng nasabing tagapagmana at sa harap ng lahat at bawat isa sa amin, sa ilalim ng
nasabing kasulatan at sa kaliwang panig ng lahat at bawat dahon ng kasulatan ito.
EUGENIA E. IGSOLO
address: 500 San Diego St.
Sampaloc, Manila Res. Cert. No. A-7717-37
Issued at Manila on March 10, 1981.
QUIRINO AGRAVA
address: 1228-Int. 3, Kahilum
Pandacan, Manila Res. Cert. No. A-458365
Issued at Manila on Jan. 21, 1981
LAMBERTO C. LEAO
address: Avenue 2, Blcok 7,
Lot 61, San Gabriel, G.MA., Cavite Res.
Cert. No. A-768277 issued at Carmona, Cavite on Feb. 7, 1981
JUANITO ESTRERA
address: City Court Compound,
City of Manila Res. Cert. No. A574829
Issued at Manila on March 2, 1981.
Nilagdaan ko at ninotario ko ngayong 10 ng Hunyo 10, 1981 dito sa Lungsod ng Maynila.
(Sgd.)
PETRONIO Y. BAUTISTA
Doc. No. 1232 ; NOTARIO PUBLIKO
Page No. 86 ; Until Dec. 31, 1981

Book No. 43 ; PTR-152041-1/2/81-Manila

Series of 1981 TAN # 1437-977-81
The three named witnesses to the will affixed their signatures on the left-hand margin of both pages
of the will, but not at the bottom of the attestation clause.
The probate petition adverted to only two (2) heirs, legatees and devisees of the decedent, namely:
petitioner himself, and one Irene Lynn Igsolo, who was alleged to have resided abroad. Petitioner
prayed that the will be allowed, and that letters testamentary be issued to the designated executor,
Vart Prague.
The petition was opposed by Geralda Aida Castillo (Geralda Castillo), who represented herself as
the attorney-in-fact of "the 12 legitimate heirs" of the decedent.2 Geralda Castillo claimed that the will
is a forgery, and that the true purpose of its emergence was so it could be utilized as a defense in
several court cases filed by oppositor against petitioner, particularly for forcible entry and usurpation
of real property, all centering on petitioners right to occupy the properties of the decedent. 3 It also
asserted that contrary to the representations of petitioner, the decedent was actually survived by 12
legitimate heirs, namely her grandchildren, who were then residing abroad. Per records, it was
subsequently alleged that decedent was the widow of Bonifacio Igsolo, who died in 1965, 4 and the
mother of a legitimate child, Asuncion E. Igsolo, who predeceased her mother by three (3) months. 5
Oppositor Geralda Castillo also argued that the will was not executed and attested to in accordance
with law. She pointed out that decedents signature did not appear on the second page of the will,
and the will was not properly acknowledged. These twin arguments are among the central matters to
this petition.
After due trial, the RTC admitted the will to probate, in an Order dated 10 August 1992. 6 The RTC
favorably took into account the testimony of the three (3) witnesses to the will, Quirino Agrava,
Lamberto Leano, and Juanito Estrada. The RTC also called to fore "the modern tendency in respect
to the formalities in the execution of a will x x x with the end in view of giving the testator more
freedom in expressing his last wishes;"7 and from this perspective, rebutted oppositors arguments
that the will was not properly executed and attested to in accordance with law.
After a careful examination of the will and consideration of the testimonies of the subscribing and
attesting witnesses, and having in mind the modern tendency in respect to the formalities in the
execution of a will, i.e., the liberalization of the interpretation of the law on the formal requirements of
a will with the end in view of giving the testator more freedom in expressing his last wishes, this
Court is persuaded to rule that the will in question is authentic and had been executed by the
testatrix in accordance with law.
On the issue of lack of acknowledgement, this Court has noted that at the end of the will after the
signature of the testatrix, the following statement is made under the sub-title, "Patunay Ng Mga
Saksi":
"Ang kasulatang ito, na binubuo ng _____ dahon pati ang huling dahong ito, na ipinahayag sa amin
ni Eugenia N. Igsolo, tagapagmana na siya niyang Huling Habilin, ngayong ika-10 ng Hunyo 1981,
ay nilagdaan ng nasabing tagapagmana sa ilalim ng kasulatang nabanggit at sa kaliwang panig ng
lahat at bawat dahon, sa harap ng lahat at bawat sa amin, at kami namang mga saksi ay lumagda
sa harap ng nasabing tagapagmana at sa harap ng lahat at bawat isa sa amin, sa ilalim ng
nasabing kasulatan at sa kaliwang panig ng lahat at bawat dahon ng kasulatan ito."

The aforequoted declaration comprises the attestation clause and the acknowledgement and is
considered by this Court as a substantial compliance with the requirements of the law.
On the oppositors contention that the attestation clause was not signed by the subscribing
witnesses at the bottom thereof, this Court is of the view that the signing by the subscribing
witnesses on the left margin of the second page of the will containing the attestation clause and
acknowledgment, instead of at the bottom thereof, substantially satisfies the purpose of identification
and attestation of the will.
With regard to the oppositors argument that the will was not numbered correlatively in letters placed
on upper part of each page and that the attestation did not state the number of pages thereof, it is
worthy to note that the will is composed of only two pages. The first page contains the entire text of
the testamentary dispositions, and the second page contains the last portion of the attestation clause
and acknowledgement. Such being so, the defects are not of a serious nature as to invalidate the
will. For the same reason, the failure of the testatrix to affix her signature on the left margin of the
second page, which contains only the last portion of the attestation clause and acknowledgment is
not a fatal defect.
As regards the oppositors assertion that the signature of the testatrix on the will is a forgery, the
testimonies of the three subscribing witnesses to the will are convincing enough to establish the
genuineness of the signature of the testatrix and the due execution of the will. 8
The Order was appealed to the Court of Appeals by Ernesto Castillo, who had substituted his since
deceased mother-in-law, Geralda Castillo. In a Decision dated 17 August 1995, the Court of Appeals
reversed the trial court and ordered the dismissal of the petition for probate. 9 The Court of Appeals
noted that the attestation clause failed to state the number of pages used in the will, thus rendering
the will void and undeserving of probate.10
Hence, the present petition.
Petitioner argues that the requirement under Article 805 of the Civil Code that "the number of pages
used in a notarial will be stated in the attestation clause" is merely directory, rather than mandatory,
and thus susceptible to what he termed as "the substantial compliance rule." 11
The solution to this case calls for the application of Articles 805 and 806 of the Civil Code, which we
replicate in full.
Art. 805. Every will, other than a holographic will, must be subscribed at the end thereof by the
testator himself or by the testator's name written by some other person in his presence, and by his
express direction, and attested and subscribed by three or more credible witnesses in the presence
of the testator and of one another.
The testator or the person requested by him to write his name and the instrumental witnesses of the
will, shall also sign, as aforesaid, each and every page thereof, except the last, on the left margin,
and all the pages shall be numbered correlatively in letters placed on the upper part of each page.
The attestation shall state the number of pages used upon which the will is written, and the fact that
the testator signed the will and every page thereof, or caused some other person to write his name,
under his express direction, in the presence of the instrumental witnesses, and that the latter
witnessed and signed the will and all the pages thereof in the presence of the testator and of one
another.

If the attestation clause is in a language not known to the witnesses, it shall be interpreted to them.
Art. 806. Every will must be acknowledged before a notary public by the testator and the witnesses.
The notary public shall not be required to retain a copy of the will, or file another with the office of the
Clerk of Court.
The appellate court, in its Decision, considered only one defect, the failure of the attestation clause
to state the number of pages of the will. But an examination of the will itself reveals several more
deficiencies.
As admitted by petitioner himself, the attestation clause fails to state the number of pages of the
will.12 There was an incomplete attempt to comply with this requisite, a space having been allotted for
the insertion of the number of pages in the attestation clause. Yet the blank was never filled in;
hence, the requisite was left uncomplied with.
The Court of Appeals pounced on this defect in reversing the trial court, citing in the process Uy
Coque v. Navas L. Sioca13 and In re: Will of Andrada.14 In Uy Coque, the Court noted that among the
defects of the will in question was the failure of the attestation clause to state the number of pages
contained in the will.15 In ruling that the will could not be admitted to probate, the Court made the
following consideration which remains highly relevant to this day: "The purpose of requiring the
number of sheets to be stated in the attestation clause is obvious; the document might easily be
so prepared that the removal of a sheet would completely change the testamentary
dispositions of the will and in the absence of a statement of the total number of sheets such
removal might be effected by taking out the sheet and changing the numbers at the top of the
following sheets or pages. If, on the other hand, the total number of sheets is stated in the
attestation clause the falsification of the document will involve the inserting of new pages and the
forging of the signatures of the testator and witnesses in the margin, a matter attended with much
greater difficulty."16
The case of In re Will of Andrada concerned a will the attestation clause of which failed to state the
number of sheets or pages used. This consideration alone was sufficient for the Court to declare
"unanim[ity] upon the point that the defect pointed out in the attesting clause is fatal." 17 It was further
observed that "it cannot be denied that the x x x requirement affords additional security against the
danger that the will may be tampered with; and as the Legislature has seen fit to prescribe this
requirement, it must be considered material."18
Against these cited cases, petitioner cites Singson v. Florentino19 and Taboada v. Hon.
Rosal,20 wherein the Court allowed probate to the wills concerned therein despite the fact that the
attestation clause did not state the number of pages of the will. Yet the appellate court itself
considered the import of these two cases, and made the following distinction which petitioner is
unable to rebut, and which we adopt with approval:
Even a cursory examination of the Will (Exhibit "D"), will readily show that the attestation does not
state the number of pages used upon which the will is written. Hence, the Will is void and
undeserving of probate.
We are not impervious of the Decisions of the Supreme Court in "Manuel Singson versus Emilia
Florentino, et al., 92 Phil. 161 and Apolonio [Taboada] versus Hon. Avelino Rosal, et al., 118 SCRA
195," to the effect that a will may still be valid even if the attestation does not contain the number of
pages used upon which the Will is written. However, the Decisions of the Supreme Court are not
applicable in the aforementioned appeal at bench. This is so because, in the case of "Manuel
Singson versus Emilia Florentino, et al., supra," although the attestation in the subject Will did not

state the number of pages used in the will, however, the same was found in the last part of the body
of the Will:
"x x x
The law referred to is article 618 of the Code of Civil Procedure, as amended by Act No. 2645, which
requires that the attestation clause shall state the number of pages or sheets upon which the 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 (In re Will of Andrada, 42 Phil. 180; Uy Coque vs.
Navas L. Sioca, 43 Phil., 405; Gumban vs. Gorcho, 50 Phil. 30; Quinto vs. Morata, 54 Phil. 481;
Echevarria vs. Sarmiento, 66 Phil. 611). The ratio decidendi of these cases seems to be that the
attestation clause must contain a statement of the number of sheets or pages composing the will
and that if this is missing or is omitted, it will have the effect of invalidating the will if the deficiency
cannot be supplied, not by evidence aliunde, but by a consideration or examination of the will itself.
But here the situation is different. While the attestation clause does not state the number of sheets or
pages upon which the will is written, however, the last part of the body of the will contains a
statement that it is composed of eight pages, which circumstance in our opinion takes this case out
of the rigid rule of construction and places it within the realm of similar cases where a broad and
more liberal view has been adopted to prevent the will of the testator from being defeated by purely
technical considerations." (page 165-165, supra) (Underscoring supplied)
In "Apolonio Tabaoda versus Hon. Avelino Rosal, et al." supra, the notarial acknowledgement in the
Will states the number of pages used in the:
"x x x
We have examined the will in question and noticed that the attestation clause failed to state the
number of pages used in writing the will. This would have been a fatal defect were it not for the fact
that, in this case, it is discernible from the entire will that it is really and actually composed of only
two pages duly signed by the testatrix and her instrumental witnesses. As earlier stated, the first
page which contains the entirety of the testamentary dispositions is signed by the testatrix at the end
or at the bottom while the instrumental witnesses signed at the left margin. The other page which is
marked as "Pagina dos" comprises the attestation clause and the acknowledgment. The
acknowledgment itself states that "this Last Will and Testament consists of two pages including this
page" (pages 200-201, supra) (Underscoring supplied).
However, in the appeal at bench, the number of pages used in the will is not stated in any part of the
Will. The will does not even contain any notarial acknowledgment wherein the number of pages of
the will should be stated.21
Both Uy Coque and Andrada were decided prior to the enactment of the Civil Code in 1950, at a
time when the statutory provision governing the formal requirement of wills was Section
618 of the Code of Civil Procedure.22 Reliance on these cases remains apropos, considering that the
requirement that the attestation state the number of pages of the will is extant from Section
618.23 However, the enactment of the Civil Code in 1950 did put in force a rule of interpretation of the
requirements of wills, at least insofar as the attestation clause is concerned, that may vary from the
philosophy that governed these two cases. Article 809 of the Civil Code states: "In the absence of
bad faith, forgery, or fraud, or undue and improper pressure and influence, defects and imperfections
in the form of attestation or in the language used therein shall not render the will invalid if it is proved

that the will was in fact executed and attested in substantial compliance with all the requirements of
article 805."
In the same vein, petitioner cites the report of the Civil Code Commission, which stated that "the
underlying and fundamental objective permeating the provisions on the [law] on [wills] in this project
consists in the [liberalization] of the manner of their execution with the end in view of giving the
testator more [freedom] in [expressing] his last wishes. This objective is in accord with the [modern
tendency] in respect to the formalities in the execution of wills."24 However, petitioner conveniently
omits the qualification offered by the Code Commission in the very same paragraph he cites from
their report, that such liberalization be "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."25
Caneda v. Court of Appeals26 features an extensive discussion made by Justice Regalado, speaking for the
Court on the conflicting views on the manner of interpretation of the legal formalities required in the execution
of the attestation clause in wills.27 Uy Coque and Andrada are cited therein, along with several other cases, as
examples of the application of the rule of strict construction. 28 However, the Code Commission opted to
recommend a more liberal construction through the "substantial compliance rule" under Article 809. A
cautionary note was struck though by Justice J.B.L. Reyes as to how Article 809 should be applied:
x x x The rule must be limited to disregarding those defects that can be supplied by an examination
of the will itself: whether all the pages are consecutively numbered; whether the signatures appear in
each and every page; whether the subscribing witnesses are three or the will was notarized. All
these are facts that the will itself can reveal, and defects or even omissions concerning them in the
attestation clause can be safely disregarded. But the total number of pages, and whether all
persons required to sign did so in the presence of each other must substantially appear in
the attestation clause, being the only check against perjury in the probate
proceedings.29 (Emphasis supplied.)
The Court of Appeals did cite these comments by Justice J.B.L. Reyes in its assailed decision,
considering that the failure to state the number of pages of the will in the attestation clause is one of
the defects which cannot be simply disregarded. In Caneda itself, the Court refused to allow the
probate of a will whose attestation clause failed to state that the witnesses subscribed their
respective signatures to the will in the presence of the testator and of each other,30 the other
omission cited by Justice J.B.L. Reyes which to his estimation cannot be lightly disregarded.
Caneda suggested: "[I]t may thus be stated that the rule, as it now stands, is that omission which
can be supplied by an examination of the will itself, without the need of resorting to extrinsic
evidence, will not be fatal and, correspondingly, would not obstruct the allowance to probate of the
will being assailed. However, those omissions which cannot be supplied except by
evidence aliunde would result in the invalidation of the attestation clause and ultimately, of the will
itself."31 Thus, a failure by the attestation clause to state that the testator signed every page can be
liberally construed, since that fact can be checked by a visual examination; while a failure by the
attestation clause to state that the witnesses signed in one anothers presence should be considered
a fatal flaw since the attestation is the only textual guarantee of compliance. 32
The failure of the attestation clause to state the number of pages on which the will was written
remains a fatal flaw, despite Article 809. The purpose of the law in requiring the clause to state the
number of pages on which the will is written is to safeguard against possible interpolation or
omission of one or some of its pages and to prevent any increase or decrease in the pages. 33 The
failure to state the number of pages equates with the absence of an averment on the part of the
instrumental witnesses as to how many pages consisted the will, the execution of which they had

ostensibly just witnessed and subscribed to. Following Caneda, there is substantial compliance with
this requirement if the will states elsewhere in it how many pages it is comprised of, as was the
situation inSingson and Taboada. However, in this case, there could have been no substantial
compliance with the requirements under Article 805 since there is no statement in the attestation
clause or anywhere in the will itself as to the number of pages which comprise the will.
At the same time, Article 809 should not deviate from the need to comply with the formal
requirements as enumerated under Article 805. Whatever the inclinations of the members of the
Code Commission in incorporating Article 805, the fact remains that they saw fit to prescribe
substantially the same formal requisites as enumerated in Section 618 of the Code of Civil
Procedure, convinced that these remained effective safeguards against the forgery or intercalation of
notarial wills.34 Compliance with these requirements, however picayune in impression, affords the
public a high degree of comfort that the testator himself or herself had decided to convey
property post mortem in the manner established in the will.35 The transcendent legislative intent,
even as expressed in the cited comments of the Code Commission, is for the fruition of the
testators incontestable desires, and not for the indulgent admission of wills to probate.
The Court could thus end here and affirm the Court of Appeals. However, an examination of the will
itself reveals a couple of even more critical defects that should necessarily lead to its rejection.
For one, the attestation clause was not signed by the instrumental witnesses. While the
signatures of the instrumental witnesses appear on the left-hand margin of the will, they do not
appear at the bottom of the attestation clause which after all consists of their averments before the
notary public.
Cagro v. Cagro36 is material on this point. As in this case, "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."37 While three (3) Justices38 considered the
signature requirement had been substantially complied with, a majority of six (6), speaking through
Chief Justice Paras, ruled that the attestation clause had not been duly signed, rendering the will
fatally defective.
There is no question that the signatures of the three witnesses to the will do not appear at the
bottom of the attestation clause, although the page containing the same is signed by the witnesses
on the left-hand margin.
We are of the opinion that the position taken by the appellant is correct. The attestation clause is "a
memorandum of the facts attending the execution of the will" required by law to be made by the
attesting witnesses, and it must necessarily bear their signatures. An unsigned attestation clause
cannot be considered as an act of the witnesses, since the omission of their signatures at the bottom
thereof negatives their participation.
The petitioner and appellee contends that signatures of the three witnesses on the left-hand margin
conform substantially to the law and may be deemed as their signatures to the attestation clause.
This is untenable, because said signatures are in compliance with the legal mandate that the will be
signed on the left-hand margin of all its pages. If an attestation clause not signed by the three
witnesses at the bottom thereof, be admitted as sufficient, it would be easy to add such clause to a
will on a subsequent occasion and in the absence of the testator and any or all of the witnesses. 39
The Court today reiterates the continued efficacy of Cagro. Article 805 particularly segregates the
requirement that the instrumental witnesses sign each page of the will, from the requisite that the will
be "attested and subscribed by [the instrumental witnesses]." The respective intents behind these

two classes of signature are distinct from each other. The signatures on the left-hand corner of every
page signify, among others, that the witnesses are aware that the page they are signing forms part
of the will. On the other hand, the signatures to the attestation clause establish that the witnesses
are referring to the statements contained in the attestation clause itself. Indeed, the attestation
clause is separate and apart from the disposition of the will. An unsigned attestation clause results in
an unattested will. Even if the instrumental witnesses signed the left-hand margin of the page
containing the unsigned attestation clause, such signatures cannot demonstrate these witnesses
undertakings in the clause, since the signatures that do appear on the page were directed towards a
wholly different avowal.
The Court may be more charitably disposed had the witnesses in this case signed the attestation
clause itself, but not the left-hand margin of the page containing such clause. Without diminishing
the value of the instrumental witnesses signatures on each and every page, the fact must be noted
that it is the attestation clause which contains the utterances reduced into writing of the testamentary
witnesses themselves. It is the witnesses, and not the testator, who are required under Article 805 to
state the number of pages used upon which the will is written; the fact that the testator had signed
the will and every page thereof; and that they witnessed and signed the will and all the pages thereof
in the presence of the testator and of one another. The only proof in the will that the witnesses have
stated these elemental facts would be their signatures on the attestation clause.
Thus, the subject will cannot be considered to have been validly attested to by the instrumental
witnesses, as they failed to sign the attestation clause.
Yet, there is another fatal defect to the will on which the denial of this petition should also hinge. The
requirement under Article 806 that "every will must be acknowledged before a notary public by the
testator and the witnesses" has also not been complied with. The importance of this requirement is
highlighted by the fact that it had been segregated from the other requirements under Article 805 and
entrusted into a separate provision, Article 806. The non-observance of Article 806 in this case is
equally as critical as the other cited flaws in compliance with Article 805, and should be treated as of
equivalent import.
In lieu of an acknowledgment, the notary public, Petronio Y. Bautista, wrote "Nilagdaan ko at
ninotario ko ngayong10 ng Hunyo 10 (sic), 1981 dito sa Lungsod ng Maynila."40 By no manner of
contemplation can those words be construed as an acknowledgment. An acknowledgment is the act
of one who has executed a deed in going before some competent officer or court and declaring it to
be his act or deed.41 It involves an extra step undertaken whereby the signor actually declares to the
notary that the executor of a document has attested to the notary that the same is his/her own free
act and deed.
It might be possible to construe the averment as a jurat, even though it does not hew to the usual
language thereof. A jurat is that part of an affidavit where the notary certifies that before him/her, the
document was subscribed and sworn to by the executor.42 Ordinarily, the language of the jurat should
avow that the document was subscribed and sworn before the notary public, while in this case, the
notary public averred that he himself "signed and notarized" the document. Possibly though, the
word "ninotario" or "notarized" encompasses the signing of and swearing in of the executors of the
document, which in this case would involve the decedent and the instrumental witnesses.
Yet even if we consider what was affixed by the notary public as a jurat, the will would nonetheless
remain invalid, as the express requirement of Article 806 is that the will be "acknowledged", and not
merely subscribed and sworn to. The will does not present any textual proof, much less one under
oath, that the decedent and the instrumental witnesses executed or signed the will as their own free
act or deed. The acknowledgment made in a will provides for another all-important legal safeguard

against spurious wills or those made beyond the free consent of the testator. An acknowledgement is
not an empty meaningless act.43 The acknowledgment coerces the testator and the instrumental
witnesses to declare before an officer of the law that they had executed and subscribed to the will as
their own free act or deed. Such declaration is under oath and under pain of perjury, thus allowing for
the criminal prosecution of persons who participate in the execution of spurious wills, or those
executed without the free consent of the testator. It also provides a further degree of assurance that
the testator is of certain mindset in making the testamentary dispositions to those persons he/she
had designated in the will.
It may not have been said before, but we can assert the rule, self-evident as it is under Article 806. A
notarial will that is not acknowledged before a notary public by the testator and the witnesses
is fatally defective, even if it is subscribed and sworn to before a notary public.
There are two other requirements under Article 805 which were not fully satisfied by the will in
question. We need not discuss them at length, as they are no longer material to the
disposition of this case. The provision requires that the testator and the instrumental witnesses sign
each and every page of the will on the left margin, except the last; and that all the pages shall be
numbered correlatively in letters placed on the upper part of each page. In this case, the decedent,
unlike the witnesses, failed to sign both pages of the will on the left margin, her only signature
appearing at the so-called "logical end"44 of the will on its first page. Also, the will itself is not
numbered correlatively in letters on each page, but instead numbered with Arabic numerals. There is
a line of thought that has disabused the notion that these two requirements be construed as
mandatory.45 Taken in isolation, these omissions, by themselves, may not be sufficient to deny
probate to a will. Yet even as these omissions are not decisive to the adjudication of this case, they
need not be dwelt on, though indicative as they may be of a general lack of due regard for the
requirements under Article 805 by whoever executed the will.
All told, the string of mortal defects which the will in question suffers from makes the probate denial
inexorable.
WHEREFORE, the petition is DENIED. Costs against petitioner.
SO ORDERED.
DANTE O. TINGA
Associate Justice
WE CONCUR:
Republic of the Philippines
SUPREME COURT
Manila
SECOND DIVISION
A.M. No. 2026-CFI December 19, 1981
NENITA DE VERA SUROZA, complainant,
vs.

JUDGE REYNALDO P. HONRADO of the Court of First Instance of Rizal, Pasig Branch 25 and
EVANGELINE S. YUIPCO, Deputy Clerk of Court, respondents.

AQUINO, J.:
Should disciplinary action be taken against respondent judge for having admitted to probate a will,
which on its face is void because it is written in English, a language not known to the illiterate
testatrix, and which is probably aforged will because she and the attesting witnesses did not appear
before the notary as admitted by the notary himself?
That question arises under the pleadings filed in the testate case and in the certiorari case in the
Court of Appeals which reveal the following tangled strands of human relationship:
Mauro Suroza, a corporal in the 45th Infantry of the U.S. Army (Philippine Scouts), Fort McKinley,
married Marcelina Salvador in 1923 (p. 150, Spec. Proc. No. 7816). They were childless. They
reared a boy named Agapito who used the surname Suroza and who considered them as his
parents as shown in his 1945 marriage contract with Nenita de Vera (p. 15, Rollo of CA-G.R. No.
08654-R; p. 148, Rollo of Testate Case showing that Agapito was 5 years old when Mauro married
Marcelina in 1923).
Mauro died in 1942. Marcelina, as a veteran's widow, became a pensioner of the Federal
Government. That explains why on her death she had accumulated some cash in two banks.
Agapito and Nenita begot a child named Lilia who became a medical technologist and went abroad.
Agapito also became a soldier. He was disabled and his wife Nenita was appointed as his guardian
in 1953 when he was declared an incompetent in Special Proceeding No. 1807 of the Court of First
Instance of Rizal, Pasig Branch I (p. 16, Rollo of CA-G.R. No. 08654-R).
In that connection, it should be noted that a woman named Arsenia de la Cruz wanted also to be his
guardian in another proceeding. Arsenia tried to prove that Nenita was living separately from Agapito
and that she (Nenita) admitted to Marcelina that she was unfaithful to Agapito (pp. 61-63, Record of
testate case).
Judge Bienvenido A. Tan dismissed the second guardianship proceeding and confirmed Nenita's
appointment as guardian of Agapito (p. 16, Rollo of CA case). Agapito has been staying in a
veteran's hospital in San Francisco or Palo Alto, California (p. 87, Record).
On a date not indicated in the record, the spouses Antonio Sy and Hermogena Talan begot a child
named Marilyn Sy, who, when a few days old, was entrusted to Arsenia de la Cruz (apparently a girl
friend of Agapito) and who was later delivered to Marcelina Salvador Suroza who brought her up as
a supposed daughter of Agapito and as her granddaughter (pp. 23-26, Rollo of CA-G.R. No.SP08654-R). Marilyn used the surname Suroza. She stayed with Marcelina but was not legally adopted
by Agapito. She married Oscar Medrano and is residing at 7666 J.B. Roxas Street, Makati,
apparently a neighbor of Marina Paje, a resident of 7668 J.B. Roxas Street.
Marcelina supposedly executed a notarial will in Manila on July 23, 1973, when she was 73 years
old. That will which is in English was thumbmarked by her. She was illiterate. Her letters in English to
the Veterans Administration were also thumbmarked by her (pp. 38-39, CA Rollo). In that wig,
Marcelina bequeathed all her estate to her supposed granddaughter Marilyn.

Marcelina died on November 15, 1974 at the Veterans Hospital in Quezon City. At the time of her
death, she was a resident of 7374 San Maximo Street, Olimpia, Makati, Rizal. She owned a 150square meter lot and house in that place. She acquired the lot in 1966 (p. 134, Record of testate
case).
On January 13, 1975, Marina Paje, alleged to be a laundrywoman of Marcelina (P. 97, CA Rollo) and
the executrix in her will (the alternate executrix was Juanita Macaraeg, mother of Oscar, Marilyn's
husband), filed with the Court of First Instance of Rizal, Pasig Branch 25, a petition for the probate of
Marcelina's alleged will. The case was assigned to Judge Reynaldo P. Honrado.
As there was no opposition, Judge Honrado commissioned his deputy clerk of court, Evangeline S.
Yuipco, to hear the evidence. The transcripts of the stenographic notes taken at the hearing before
the deputy clerk of court are not in the record.
In an order dated March 31, 1975, Judge Honrado appointed Marina as administratrix. On the
following day, April 1, Judge Honrado issued two orders directing the Merchants Banking
Corporation and the Bank of America to allow Marina to withdraw the sum of P10,000 from the
savings accounts of Marcelina S. Suroza and Marilyn Suroza and requiring Corazon Castro, the
custodian of the passbooks, to deliver them to Marina.
Upon motion of Marina, Judge Honrado issued another order dated April 11, 1975, instructing a
deputy sheriff to eject the occupants of the testatrix's house, among whom was Nenita V. Suroza,
and to place Marina in possession thereof.
That order alerted Nenita to the existence of the testamentary proceeding for the settlement of
Marcelina's estate. She and the other occupants of the decedent's house filed on April 18 in the said
proceeding a motion to set aside the order of April 11 ejecting them. They alleged that the
decedent's son Agapito was the sole heir of the deceased, that he has a daughter named Lilia, that
Nenita was Agapito's guardian and that Marilyn was not Agapito's daughter nor the decedent's
granddaughter (pp. 52-68, Record of testate case). Later, they questioned the probate court's
jurisdiction to issue the ejectment order.
In spite of the fact that Judge Honrado was already apprised that persons, other than Marilyn, were
claiming Marcelina's estate, he issued on April 23 an order probating her supposed will wherein
Marilyn was the instituted heiress (pp. 74-77, Record).
On April 24, Nenita filed in the testate case an omnibus petition "to set aside proceedings, admit
opposition with counter-petition for administration and preliminary injunction". Nenita in that motion
reiterated her allegation that Marilyn was a stranger to Marcelina, that the will was not duly executed
and attested, that it was procured by means of undue influence employed by Marina and Marilyn and
that the thumbmarks of the testatrix were procured by fraud or trick.
Nenita further alleged that the institution of Marilyn as heir is void because of the preterition of
Agapito and that Marina was not qualified to act as executrix (pp. 83-91, Record).
To that motion was attached an affidavit of Zenaida A. Penaojas the housemaid of Marcelina, who
swore that the alleged will was falsified (p. 109, Record).
Not content with her motion to set aside the ejectment order (filed on April 18) and her omnibus
motion to set aside the proceedings (filed on April 24), Nenita filed the next day, April 25, an
opposition to the probate of the will and a counter-petition for letters of administration. In that

opposition, Nenita assailed the due execution of the will and stated the names and addresses of
Marcelina's intestate heirs, her nieces and nephews (pp. 113-121, Record). Nenita was not aware of
the decree of probate dated April 23, 1975.
To that opposition was attached an affidavit of Dominga Salvador Teodocio, Marcelina's niece, who
swore that Marcelina never executed a win (pp. 124-125, Record).
Marina in her answer to Nenita's motion to set aside the proceedings admitted that Marilyn was not
Marcelina's granddaughter but was the daughter of Agapito and Arsenia de la Cruz and that Agapito
was not Marcelina's sonbut merely an anak-anakan who was not legally adopted (p. 143, Record).
Judge Honrado in his order of July 17, 1975 dismissed Nenita's counter-petition for the issuance of
letters of administration because of the non-appearance of her counsel at the hearing. She moved
for the reconsideration of that order.
In a motion dated December 5, 1975, for the consolidation of all pending incidents, Nenita V. Suroza
reiterated her contention that the alleged will is void because Marcelina did not appear before the
notary and because it is written in English which is not known to her (pp. 208-209, Record).
Judge Honrado in his order of June 8, 1976 "denied" the various incidents "raised" by Nenita (p. 284,
Record).
Instead of appealing from that order and the order probating the wig, Nenita "filed a case to annul"
the probate proceedings (p. 332, Record). That case, Civil Case No. 24276, Suroza vs. Paje and
Honrado (p. 398, Record), was also assigned to Judge Honrado. He dismissed it in his order of
February 16, 1977 (pp. 398-402, Record).
Judge Honrado in his order dated December 22, 1977, after noting that the executrix had delivered
the estate to Marilyn, and that the estate tax had been paid, closed the testamentary proceeding.
About ten months later, in a verified complaint dated October 12, 1978, filed in this Court, Nenita
charged Judge Honrado with having probated the fraudulent will of Marcelina. The complainant
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 win was written.
(In the decree of probate Judge Honrado did not make any finding that the will was written in a
language known to the testatrix.)
Nenita further alleged that Judge Honrado, in spite of his knowledge that the testatrix had a son
named Agapito (the testatrix's supposed sole compulsory and legal heir), who was preterited in the
will, did not take into account the consequences of such a preterition.
Nenita disclosed that she talked several times with Judge Honrado and informed him that the
testatrix did not know the executrix Marina Paje, that the beneficiary's real name is Marilyn Sy and
that she was not the next of kin of the testatrix.
Nenita denounced Judge Honrado for having acted corruptly in allowing Marina and her cohorts to
withdraw from various banks the deposits Marcelina.
She also denounced Evangeline S. Yuipco, the deputy clerk of court, for not giving her access to the
record of the probate case by alleging that it was useless for Nenita to oppose the probate since
Judge Honrado would not change his decision. Nenita also said that Evangeline insinuated that if

she (Nenita) had ten thousand pesos, the case might be decided in her favor. Evangeline allegedly
advised Nenita to desist from claiming the properties of the testatrix because she (Nenita) had no
rights thereto and, should she persist, she might lose her pension from the Federal Government.
Judge Honrado in his brief comment did not deal specifically with the allegations of the complaint.
He merely pointed to the fact that Nenita did not appeal from the decree of probate and that in a
motion dated July 6, 1976 she asked for a thirty day period within which to vacate the house of the
testatrix.
Evangeline S. Yuipco in her affidavit said that she never talked with Nenita and that the latter did not
mention Evangeline in her letter dated September 11, 1978 to President Marcos.
Evangeline branded as a lie Nenita's imputation that she (Evangeline) prevented Nenita from having
access to the record of the testamentary proceeding. Evangeline was not the custodian of the
record. Evangeline " strongly, vehemently and flatly denied" Nenita's charge that she (Evangeline)
said that the sum of ten thousand pesos was needed in order that Nenita could get a favorable
decision. Evangeline also denied that she has any knowledge of Nenita's pension from the Federal
Government.
The 1978 complaint against Judge Honorado was brought to attention of this Court in the Court
Administrator's memorandum of September 25, 1980. The case was referred to Justice Juan A.
Sison of the Court of Appeals for investigation, report and recommendation. He submitted a report
dated October 7, 1981.
On December 14, 1978, Nenita filed in the Court of Appeals against Judge Honrado a petition for
certiorari and prohibition wherein she prayed that the will, the decree of probate and all the
proceedings in the probate case be declared void.
Attached to the petition was the affidavit of Domingo P. Aquino, who notarized the will. He swore that
the testatrix and the three attesting witnesses did not appear before him and that he notarized the
will "just to accommodate a brother lawyer on the condition" that said lawyer would bring to the
notary the testatrix and the witnesses but the lawyer never complied with his commitment.
The Court of Appeals dismissed the petition because Nenita's remedy was an appeal and her failure
to do so did not entitle her to resort to the special civil action of certiorari (Suroza vs. Honrado, CAG.R. No. SP-08654, May 24, 1981).
Relying on that decision, Judge Honrado filed on November 17, 1981 a motion to dismiss the
administrative case for having allegedly become moot and academic.
We hold that disciplinary action should be taken against respondent judge for his improper
disposition of the testate case which might have resulted in a miscarriage of justice because the
decedent's legal heirs and not the instituted heiress in the void win should have inherited the
decedent's estate.
A judge may be criminally liable or knowingly rendering an unjust judgment or interlocutory order or
rendering a manifestly unjust judgment or interlocutory order by reason of inexcusable negligence or
ignorance (Arts. 204 to 206, Revised Penal Code).
Administrative action may be taken against a judge of the court of first instance for serious
misconduct or inefficiency ( Sec. 67, Judiciary Law). Misconduct implies malice or a wrongful intent,

not a mere error of judgment. "For serious misconduct to exist, there must be reliable evidence
showing that the judicial acts complained of were corrupt or inspired by an intention to violate the
law, or were in persistent disregard of well-known legal rules" (In re lmpeachment of Horrilleno, 43
Phil. 212, 214-215).
Inefficiency implies negligence, incompetence, ignorance and carelessness. A judge would be
inexcusably negligent if he failed to observe in the performance of his duties that diligence, prudence
and circumspection which the law requires in the rendition of any public service (In re Climaco, Adm.
Case No. 134-J, Jan. 21, 1974, 55 SCRA 107, 119).
In this case, 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". (p. 16, Record of testate case). That could only
mean that the will was written in a language not known to the illiterate testatrix and, therefore, it is
void because of the mandatory provision of article 804 of the Civil Code that every will must be
executed in a language or dialect known to the testator. Thus, a will written in English, which was not
known to the Igorot testator, is void and was disallowed (Acop vs. Piraso, 52 Phil. 660).
The hasty preparation of the will is shown in the attestation clause and notarial acknowledgment
where Marcelina Salvador Suroza is repeatedly referred to as the "testator" instead of "testatrix".
Had respondent judge been careful and observant, he could have noted not only the anomaly as to
the language of the will but also that there was something wrong in instituting the supposed
granddaughter as sole heiress and giving nothing at all to her supposed father who was still alive.
Furthermore, after the hearing conducted by respondent deputy clerk of court, respondent judge
could have noticed that the notary was not presented as a witness.
In spite of the absence of an opposition, respondent judge should have personally conducted the
hearing on the probate of the will so that he could have ascertained whether the will was validly
executed.
Under the circumstances, we find his negligence and dereliction of duty to be inexcusable.
WHEREFORE, for inefficiency in handling the testate case of Marcelina S. Suroza, a fine equivalent
to his salary for one month is imposed on respondent judge (his compulsory retirement falls on
December 25, 1981).
The case against respondent Yuipco has become moot and academic because she is no longer
employed in the judiciary. Since September 1, 1980 she has been assistant city fiscal of Surigao
City. She is beyond this Court's disciplinary jurisdiction (Peralta vs. Firm Adm. Matter No. 2044-CFI
November 21, 1980, 101 SCRA 225).
SO ORDERED.
Barredo (Chairman), De Castro, Ericta and Escolin JJ., concur.
Concepcion Jr., J., is on leave.

Abad Santos, J., took no part.

SECOND DIVISION

PAZ SAMANIEGO-CELADA,

G.R. No. 145545

Petitioner,
Present:
QUISUMBING, J., Chairperson,
- versus -

CARPIO MORALES,
TINGA,
VELASCO, JR., and
BRION, JJ.

LUCIA D. ABENA,

Promulgated:

Respondent.
June 30, 2008
x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x

DECISION
QUISUMBING, J.:
This is a petition for review under Rule 45 of the 1997 Rules
of Civil Procedure seeking to reverse the Decision [1] dated October
13, 2000 of the Court of Appeals in CA-G.R. CV No. 41756, which

affirmed the Decision[2] dated March 2, 1993 of the Regional Trial

Court (RTC), Branch 66, Makati City. The RTC had declared the last
will and testament of Margarita S. Mayores probated and
designated respondent Lucia D. Abena as the executor of her
will. It also ordered the issuance of letters testamentary in favor
of respondent.
The facts are as follows:
Petitioner Paz Samaniego-Celada was the first cousin of
decedent Margarita S. Mayores (Margarita) while respondent was
the decedents lifelong companion since 1929.
On April 27, 1987, Margarita died single and without any
ascending nor descending heirs as her parents, grandparents and
siblings predeceased her. She was survived by her first cousins
Catalina
SamaniegoBombay, Manuelita Samaniego Sajonia, Feliza Samaniego,
and
petitioner.
Before her death, Margarita executed a Last Will and
Testament[3] on February 2, 1987 where she bequeathed one-half
of her undivided share of a real property located at Singalong
Manila, consisting of 209.8 square meters, and covered by
Transfer Certificate of Title (TCT) No. 1343 to respondent, Norma
A. Pahingalo, and Florentino M. Abena in equal shares or one-third
portion each. She likewise bequeathed one-half of her undivided
share of a real property located at San Antonio Village, Makati,
consisting of 225 square meters, and covered by TCT No. 68920
to respondent, Isabelo M. Abena, and Amanda M. Abena in equal
shares or one-third portion each. Margarita also left all her
personal properties to respondent whom she likewise designated
as sole executor of her will.
On August 11, 1987, petitioner filed a petition for letters of
administration of the estate of Margarita before the RTC of Makati.
The case was docketed as SP Proc. No. M-1531.
On October 27, 1987, respondent filed a petition for probate
of the will of Margarita before the RTC of Makati. The case was

docketed as SP Proc. No. M-1607 and consolidated with SP Proc.

No. M-1531.
On March 2, 1993, the RTC rendered a decision declaring the
last will and testament of Margarita probated and respondent as
the executor of the will. The dispositive portion of the decision
states:
In view of the foregoing, judgment is hereby rendered:

1)

declaring the will as probated;

2)

declaring Lucia Abena as the executor of the will who will

serve as such without a bond as stated in paragraph VI of the
probated will;

3)

ordering the issuance of letters testamentary in favor of

Lucia Abena.

So ordered.[4]

Petitioner appealed the RTC decision to the Court of

Appeals. But the Court of Appeals, in a decision dated October 13,
2000, affirmed in toto the RTC ruling. The dispositive portion of
the Court of Appeals decision states:
WHEREFORE, foregoing premises considered, the appeal
having no merit in fact and in law, is hereby ORDERED
DISMISSED and
the
appealed
Decision
of
the
trial
courtAFFIRMED IN TOTO, with cost to oppositors-appellants.
SO ORDERED.[5]

Hence, the instant petition citing the following issues:

I.

WHETHER OR NOT THE COURT OF APPEALS COMMITTED A REVERSIBLE

ERROR IN NOT INVALIDATING THE WILL SINCE IT DID NOT CONFORM TO
THE FORMALITIES REQUIRED BY LAW;

II.

WHETHER OR NOT THE COURT OF APPEALS COMMITTED ERROR IN NOT

INVALIDATING THE WILL BECAUSE IT WAS PROCURED THROUGH
UNDUE INFLUENCE AND PRESSURE[;] AND

III.

WHETHER OR NOT THE COURT OF APPEALS GRAVELY ERRED IN NOT

DECLARING PETITIONER, HER SIBLINGS AND COUSIN AS THE LEGAL
HEIRS OF MARGARITAS. MAYORES AND IN NOT ISSUING LETTERS OF
ADMINISTRATION TO HER.[6]

Briefly stated, the issues are (1) whether the Court of

Appeals erred in not declaring the will invalid for failure to comply
with the formalities required by law, (2) whether said court erred
in not declaring the will invalid because it was procured through
undue influence and pressure, and (3) whether it erred in not
declaring petitioner and her siblings as the legal heirs of
Margarita, and in not issuing letters of administration to
petitioner.

Petitioner, in her Memorandum,[7] argues that Margaritas will

failed to comply with the formalities required under Article
805[8] of the Civil Code because the will was not signed by the
testator in the presence of the instrumental witnesses and in the
presence of one another. She also argues that the signatures of
the testator on pages A, B, and C of the will are not the same or
similar, indicating that they were not signed on the same day. She
further argues that the will was procured through undue influence
and pressure because at the time of execution of the will,
Margarita was weak, sickly, jobless and entirely dependent upon
respondent and her nephews for support, and these alleged
handicaps allegedly affected her freedom and willpower to decide
on her own. Petitioner thus concludes that Margaritas total
dependence on respondent and her nephews compelled her to
sign the will. Petitioner likewise argues that the Court of Appeals
should have declared her and her siblings as the legal heirs of
Margarita since they are her only living collateral relatives in
accordance with Articles 1009[9] and 1010[10] of the Civil Code.
Respondent, for her part, argues in her Memorandum [11] that
the petition for review raises questions of fact, not of law and as
a rule, findings of fact of the Court of Appeals are final and
conclusive and cannot be reviewed on appeal to the Supreme
Court. She also points out that although the Court of Appeals at
the outset opined there was no compelling reason to review the
petition, the Court of Appeals proceeded to tackle the assigned
errors and rule that the will was validly executed, sustaining the
findings of the trial court that the formalities required by law were
duly complied with. The Court of Appeals also concurred with the
findings of the trial court that the testator, Margarita, was of
sound mind when she executed the will.
After careful consideration of the parties contentions, we rule
in favor of respondent.
We find that the issues raised by petitioner concern pure
questions of fact, which may not be the subject of a petition for
review on certiorari under Rule 45 of the Rules of Civil Procedure.

The issues that petitioner is raising now i.e., whether or not

the will was signed by the testator in the presence of the
witnesses and of one another, whether or not the signatures of
the witnesses on the pages of the will were signed on the same
day, and whether or not undue influence was exerted upon the
testator which compelled her to sign the will, are all questions of
fact.
This Court does not resolve questions of fact in a petition for
review under Rule 45 of the 1997 Rules of Civil Procedure. Section
1[12] of Rule 45 limits this Courts review to questions of law only.
Well-settled is the rule that the Supreme Court is not a trier
of facts. When supported by substantial evidence, the findings of
fact of the Court of Appeals are conclusive and binding on the
parties and are not reviewable by this Court, unless the case falls
under any of the following recognized exceptions:
(1) When the conclusion is a finding grounded entirely on speculation,
surmises and conjectures;
(2) When the inference made is manifestly mistaken, absurd or
impossible;
(3) Where there is a grave abuse of discretion;
(4) When the judgment is based on a misapprehension of facts;
(5) When the findings of fact are conflicting;
(6) When the Court of Appeals, in making its findings, went beyond the
issues of the case and the same is contrary to the admissions of
both appellant and appellee;
(7) When the findings are contrary to those of the trial court;
(8) When the findings of fact are conclusions without citation of specific
evidence on which they are based;
(9) When the facts set forth in the petition as well as in the petitioners
main and reply briefs are not disputed by the respondents; and

(10) When the findings of fact of the Court of Appeals are premised on
the supposed absence of evidence and contradicted by the
evidence on record.[13]

We find that this case does not involve any of the

abovementioned exceptions.
Nonetheless, a review of the findings of the RTC as upheld by
the Court of Appeals, reveal that petitioners arguments lack
basis. The RTC correctly held:
With [regard] to the contention of the oppositors [Paz
Samaniego-Celada, et al.] that the testator [Margarita Mayores] was
not mentally capable of making a will at the time of the execution
thereof, the same is without merit. The oppositors failed to establish,
by preponderance of evidence, said allegation and contradict the
presumption that the testator was of sound mind (See Article 800 of
the Civil Code). In fact, witness for the oppositors, Dr. Ramon
Lamberte, who, in some occasions, attended to the testator months
before her death, testified that Margarita Mayores could engage in a
normal conversation and he even stated that the illness of the testator
does not warrant hospitalization. Not one of the oppositors witnesses
has mentioned any instance that they observed act/s of the testator
during her lifetime that could be construed as a manifestation of
mental incapacity. The testator may be admitted to be physically weak
but it does not necessarily follow that she was not of sound mind. [The]
testimonies of contestant witnesses are pure aforethought.

Anent the contestants submission that the will is fatally

defective for the reason that its attestation clause states that the will is
composed of three (3) pages while in truth and in fact, the will consists
of two (2) pages only because the attestation is not a part of the
notarial will, the same is not accurate. While it is true that the
attestation clause is not a part of the will, the court, after examining
the totality of the will, is of the considered opinion that error in the
number of pages of the will as stated in the attestation clause is not
material to invalidate the subject will. It must be noted that the subject
instrument is consecutively lettered with pages A, B, and C which is a
sufficient safeguard from the possibility of an omission of some of the
pages. The error must have been brought about by the honest belief

that the will is the whole instrument consisting of three (3) pages
inclusive of the attestation clause and the acknowledgement. The
position of the court is in consonance with the doctrine of liberal
interpretation enunciated in Article 809 of the Civil Code which
reads:
In the absence of bad faith, forgery or fraud, or
undue [and] improper pressure and influence,
defects and imperfections in the form of
attestation or in the language used therein shall
not render the will invalid if it is proved that the
will was in fact executed and attested in
substantial compliance with all the requirements of
Article 805.

The court also rejects the contention of the oppositors that the
signatures of the testator were affixed on different occasions based on
their observation that the signature on the first page is allegedly
different in size, texture and appearance as compared with the
signatures in the succeeding pages. After examination of the
signatures, the court does not share the same observation as the
oppositors. The picture (Exhibit H-3) shows that the testator was
affixing her signature in the presence of the instrumental witnesses
and the notary. There is no evidence to show that the first signature
was procured earlier than February 2, 1987.

Finally, the court finds that no pressure nor undue influence was
exerted on the testator to execute the subject will. In fact, the picture
reveals that the testator was in a good mood and smiling with the
other witnesses while executing the subject will (See Exhibit H).

In fine, the court finds that the testator was mentally capable of
making the will at the time of its execution, that the notarial will
presented to the court is the same notarial will that was executed and
that all the formal requirements (See Article 805 of the Civil Code) in

the execution of a will have been substantially complied with in the

subject notarial will.[14] (Emphasis supplied.)

Thus, we find no reason to disturb the abovementioned

findings of the RTC. Since, petitioner and her siblings are not
compulsory heirs of the decedent under Article 887 [15] of the Civil
Code and as the decedent validly disposed of her properties in a
will duly executed and probated, petitioner has no legal right to
claim any part of the decedents estate.
WHEREFORE, the petition is DENIED. The assailed Decision
dated October 13, 2000 of the Court of Appeals in CA-G.R. CV No.
41756 is AFFIRMED.
Costs against petitioner.
SO ORDERED.

Republic of the Philippines

SUPREME COURT
Manila
SECOND DIVISION
G.R. No. L-51546 January 28, 1980
JOSE ANTONIO GABUCAN, petitioner-appellant,
vs.
HON. JUDGE LUIS D. MANTA JOSEFA G. VDA. DE YSALINA and NELDA G.
ENCLONAR, respondents-appellees.
Ignacio A. Calingin for appellant.

AQUINO, J.:
This case is about the dismissal of a petition for the probate of a notarial will on the ground that it
does not bear a thirty-centavo documentary stamp.

The Court of First Instance of Camiguin in its "decision" of December 28, 1977 in Special
Proceeding No. 41 for the probate of the will of the late Rogaciano Gabucan, dismissed the
proceeding (erroneously characterizes as an "action")
The proceeding was dismissed because the requisite documentary stamp was not affixed to the
notarial acknowledgment in the will and, hence, according to respondent Judge, it was not
admissible in evidence, citing section 238 of the Tax Code, now section 250 of the 1977 Tax Code,
which reads:
SEC. 238. Effect of failure to stamp taxable document. An instrument, document,
or paper which is required by law to be stamped and which has been signed, issued,
accepted, or transferred without being duly stamped, shall not be recorded, nor shall
it or any copy thereof or any record of transfer of the same be admitted or used in
evidence in any court until the requisite stamp or stamps shall have been affixed
thereto and cancelled.
No notary public or other officer authorized to administer oaths shall add his jurat or
acknowledgment to any document subject to documentary stamp tax unless the
proper documentary stamps are affixed thereto and cancelled.
The probate court assumed that the notarial acknowledgment of the said will is subject to the thirtycentavo documentary stamp tax fixed in section 225 of the Tax Code, now section 237 of the 1977
Tax Code.
Respondent Judge refused to reconsider the dismissal in spite of petitioner's manifestation that he
had already attached the documentary stamp to the original of the will. (See Mahilum vs. Court of
Appeals, 64 O. G. 4017, 17 SCRA 482, 486.)
The case was brought to this Court by means of a petition for mandamus to compel the lower court
to allow petitioner's appeal from its decision. In this Court's resolution of January 21, 1980 the
petition for mandamus was treated in the interest of substantial and speedy justice as an appeal
under Republic Act No. 5440 as well as a special civil action of certiorari under Rule 65 of the Rules
of Court.
We hold that the lower court manifestly erred in declaring that, because no documentary stamp was
affixed to the will, there was "no will and testament to probate" and, consequently, the alleged "action
must of necessity be dismissed".
What the probate court should have done was to require the petitioner or proponent to affix the
requisite thirty-centavo documentary stamp to the notarial acknowledgment of the will which is the
taxable portion of that document.
That procedure may be implied from the provision of section 238 that the non-admissibility of the
document, which does not bear the requisite documentary stamp, subsists only "until the requisite
stamp or stamps shall have been affixed thereto and cancelled."
Thus, it was held that the documentary stamp may be affixed at the time the taxable document is
presented in evidence (Del Castillo vs. Madrilena 49 Phil. 749). If the promissory note does not bear
a documentary stamp, the court should have allowed plaintiff's tender of a stamp to supply the
deficiency. (Rodriguez vs. Martinez, 5 Phil. 67, 71. Note the holding in Azarraga vs. Rodriguez, 9
Phil. 637, that the lack of the documentary stamp on a document does not invalidate such document.

See Cia. General de Tabacos vs. Jeanjaquet 12 Phil. 195, 201-2 and Delgado and Figueroa vs.
Amenabar 16 Phil. 403, 405-6.)
WHEREFORE, the lower court's dismissal of the petition for probate is reversed and set aside. It is
directed to decide the case on the merits in the light of the parties' evidence. No costs.
SO ORDERED.
Barredo, Antonio, Concepcion, Jr., and Abad Santos, JJ. concur.
Republic of the Philippines
SUPREME COURT
Manila
FIRST DIVISION
G.R. No. L-36033 November 5, 1982
IN THE MATTER OF THE PETITION FOR THE PROBATE OF THE WILL OF DOROTEA PEREZ,
(deceased): APOLONIO TABOADA, petitioner,
vs.
HON. AVELINO S. ROSAL, as Judge of Court of First Instance of Southern Leyte, (Branch III,
Maasin),respondent.
Erasmo M. Diola counsel for petition.
Hon. Avelino S. Rosal in his own behalf.

GUTIERREZ, JR. J.:

This is a petition for review of the orders issued by the Court of First Instance of Southern Leyte,
Branch III, in Special Proceedings No. R-1713, entitled "In the Matter of the Petition for Probate of
the Will of Dorotea Perez, Deceased; Apolonio Taboada, Petitioner", which denied the probate of the
will, the motion for reconsideration and the motion for appointment of a special administrator.
In the petition for probate filed with the respondent court, the petitioner attached the alleged last will
and testament of the late Dorotea Perez. Written in the Cebuano-Visayan dialect, the will consists of
two pages. The first page contains the entire testamentary dispositions and is signed at the end or
bottom of the page by the testatrix alone and at the left hand margin by the three (3) instrumental
witnesses. The second page which contains the attestation clause and the acknowledgment is
signed at the end of the attestation clause by the three (3) attesting witnesses and at the left hand
margin by the testatrix.
Since no opposition was filed after the petitioner's compliance with the requirement of publication,
the trial court commissioned the branch clerk of court to receive the petitioner's evidence.
Accordingly, the petitioner submitted his evidence and presented Vicente Timkang, one of the
subscribing witnesses to the will, who testified on its genuineness and due execution.
The trial court, thru then Presiding Judge Ramon C. Pamatian issued the questioned order denying
the probate of the will of Dorotea Perez for want of a formality in its execution. In the same order, the

petitioner was also required to submit the names of the intestate heirs with their corresponding
addresses so that they could be properly notified and could intervene in the summary settlement of
the estate.
Instead of complying with the order of the trial court, the petitioner filed a manifestation and/or
motion, ex partepraying for a thirty-day period within which to deliberate on any step to be taken as a
result of the disallowance of the will. He also asked that the ten-day period required by the court to
submit the names of intestate heirs with their addresses be held in abeyance.
The petitioner filed a motion for reconsideration of the order denying the probate of the will.
However, the motion together with the previous manifestation and/or motion could not be acted upon
by the Honorable Ramon C. Pamatian due to his transfer to his new station at Pasig, Rizal. The said
motions or incidents were still pending resolution when respondent Judge Avelino S. Rosal assumed
the position of presiding judge of the respondent court.
Meanwhile, the petitioner filed a motion for the appointment of special administrator.
Subsequently, the new Judge denied the motion for reconsideration as well as the manifestation
and/or motion filed ex parte. In the same order of denial, the motion for the appointment of special
administrator was likewise denied because of the petitioner's failure to comply with the order
requiring him to submit the names of' the intestate heirs and their addresses.
The petitioner decided to file the present petition.
For the validity of a formal notarial will, does Article 805 of the Civil Code require that the testatrix
and all the three instrumental and attesting witnesses sign at the end of the will and in the presence
of the testatrix and of one another?
Article 805 of the Civil Code provides:
Every will, other than a holographic will, must be subscribed at the end thereof by the
testator himself or by the testator's name written by some other person in his
presence, and by his express direction, and attested and subscribed by three or
more credible witnesses in the presence of the testator and of one another.
The testator or the person requested by him to write his name and the instrumental
witnesses of the will, shall also sign, as aforesaid, each and every page thereof,
except the last, on the left margin, and all the pages shall be numbered correlatively
in letters placed on the upper part of each page.
The attestation shall state the number of pages used upon which the will is written,
and the fact that the testator signed the will and every page thereof, or caused some
other person to write his name, under his express direction, in the presence of the
instrumental witnesses, and that the lacier witnesses and signed the will and the
pages thereof in the presence of the testator and of one another.
If the attestation clause is in a language not known to the witnesses, it shall be
interpreted to the witnesses, it shall be interpreted to them.
The respondent Judge interprets the above-quoted provision of law to require that, for a notarial will
to be valid, it is not enough that only the testatrix signs at the "end" but an the three subscribing

witnesses must also sign at the same place or at the end, in the presence of the testatrix and of one
another because the attesting witnesses to a will attest not merely the will itself but also the
signature of the testator. It is not sufficient compliance to sign the page, where the end of the will is
found, at the left hand margin of that page.
On the other hand, the petitioner maintains that Article 805 of the Civil Code does not make it a
condition precedent or a matter of absolute necessity for the extrinsic validity of the wig that the
signatures of the subscribing witnesses should be specifically located at the end of the wig after the
signature of the testatrix. He contends that it would be absurd that the legislature intended to place
so heavy an import on the space or particular location where the signatures are to be found as long
as this space or particular location wherein the signatures are found is consistent with good faith and
the honest frailties of human nature.
We find the petition meritorious.
Undoubtedly, under Article 805 of the Civil Code, the will must be subscribed or signed at its end by
the testator himself or by the testator's name written by another person in his presence, and by his
express direction, and attested and subscribed by three or more credible witnesses in the presence
of the testator and of one another.
It must be noted that the law uses the terms attested and subscribed Attestation consists in
witnessing the testator's execution of the will in order to see and take note mentally that those things
are, done which the statute requires for the execution of a will and that the signature of the testator
exists as a fact. On the other hand, subscription is the signing of the witnesses' names upon the
same paper for the purpose of Identification of such paper as the will which was executed by the
testator. (Ragsdale v. Hill, 269 SW 2d 911).
Insofar as the requirement of subscription is concerned, it is our considered view that the will in this
case was subscribed in a manner which fully satisfies the purpose of Identification.
The signatures of the instrumental witnesses on the left margin of the first page of the will attested
not only to the genuineness of the signature of the testatrix but also the due execution of the will as
embodied in the attestation clause.
While perfection in the drafting of a will may be desirable, unsubstantial departure from the usual
forms should be ignored, especially where the authenticity of the will is not assailed. (Gonzales v.
Gonzales, 90 Phil. 444, 449).
The law is to be liberally construed, "the underlying and fundamental objective permeating the
provisions on the law on wills in this project consists in the liberalization of the manner of their
execution with the end in view of giving the testator more freedom in expressing his last wishes but
with sufficient safeguards and restrictions to prevent the commission of fraud and the exercise of
undue and improper pressure and influence upon the testator. This objective is in accord with the
modern tendency in respect to the formalities in the execution of a will" (Report of the Code
commission, p. 103).
Parenthetically, Judge Ramon C. Pamatian stated in his questioned order that were not for the
defect in the place of signatures of the witnesses, he would have found the testimony sufficient to
establish the validity of the will.

The objects of attestation and of subscription were fully met and satisfied in the present case when
the instrumental witnesses signed at the left margin of the sole page which contains all the
testamentary dispositions, especially so when the will was properly Identified by subscribing witness
Vicente Timkang to be the same will executed by the testatrix. There was no question of fraud or
substitution behind the questioned order.
We have examined the will in question and noticed that the attestation clause failed to state the
number of pages used in writing the will. This would have been a fatal defect were it not for the fact
that, in this case, it is discernible from the entire wig that it is really and actually composed of only
two pages duly signed by the testatrix and her instrumental witnesses. As earlier stated, the first
page which contains the entirety of the testamentary dispositions is signed by the testatrix at the end
or at the bottom while the instrumental witnesses signed at the left margin. The other page which is
marked as "Pagina dos" comprises the attestation clause and the acknowledgment. The
acknowledgment itself states that "This Last Will and Testament consists of two pages including this
page".
In Singson v. Florentino, et al. (92 Phil. 161, 164), this Court made the following observations with
respect to the purpose of the requirement that the attestation clause must state the number of pages
used:
The law referred to is article 618 of the Code of Civil Procedure, as amended by Act
No. 2645, which requires that the attestation clause shall state the number of pages
or sheets upon which the win is written, which requirement has been held to be
mandatory as an effective safeguard against the possibility of interpolation or
omission of some of the pages of the will to the prejudice of the heirs to whom the
property is intended to be bequeathed (In re will of Andrada, 42 Phil., 180; Uy
Coque vs. Navas L. Sioca, 43 Phil. 405; Gumban vs. Gorecho, 50 Phil. 30; Quinto
vs. Morata, 54 Phil. 481; Echevarria vs. Sarmiento, 66 Phil. 611). The ratio
decidendi of these cases seems to be that the attestation clause must contain a
statement of the number of sheets or pages composing the will and that if this is
missing or is omitted, it will have the effect of invalidating the will if the deficiency
cannot be supplied, not by evidence aliunde, but by a consideration or examination
of the will itself. But here the situation is different. While the attestation clause does
not state the number of sheets or pages upon which the will is written, however, the
last part of the body of the will contains a statement that it is composed of eight
pages, which circumstance in our opinion takes this case out of the rigid rule of
construction and places it within the realm of similar cases where a broad and more
liberal view has been adopted to prevent the will of the testator from being defeated
by purely technical considerations.
Icasiano v. Icasiano (11 SCRA 422, 429) has the following ruling which applies a similar liberal
approach:
... Impossibility of substitution of this page is assured not only (sic) the fact that the
testatrix and two other witnesses did sign the defective page, but also by its bearing
the coincident imprint of the seal of the notary public before whom the testament was
ratified by testatrix and all three witnesses. The law should not be so strictly and
literally interpreted as to penalize the testatrix on account of the inadvertence of a
single witness over whose conduct she had no control where the purpose of the law
to guarantee the Identity of the testament and its component pages is sufficiently
attained, no intentional or deliberate deviation existed, and the evidence on record
attests to the fun observance of the statutory requisites. Otherwise, as stated in Vda.

de Gil. Vs. Murciano, 49 Off. Gaz. 1459, at 1479 (decision on reconsideration)

'witnesses may sabotage the will by muddling or bungling it or the attestation clause.
WHEREFORE, the present petition is hereby granted. The orders of the respondent court which
denied the probate of tile will, the motion for reconsideration of the denial of probate, and the motion
for appointment of a special administrator are set aside. The respondent court is ordered to allow the
probate of the wig and to conduct further proceedings in accordance with this decision. No
pronouncement on costs.
SO ORDERED.
Melencio-Herrera (Acting Chairperson), Plana, Vasquez and Relova, JJ., concur.
Teehankee, J, is on leave.

The Lawphil Project - Arellano Law Foundation

81 SCRA 393 Succession Prevarication Lawyers Testimony vs Witness Testimony

The late Eugenia Danila left a will wherein she instituted among others Adelaida Nista as
one of the instituted heirs. Nista petitioned before the court to admit the will to probate. The
petition was opposed by Buenaventura Guerra and Marcelina Guerra. The two oppositors
claimed that they were the legally adopted children of Danila; that the said will sought to be
probated by Nista was obtained through fraud.
The two parties talked and they came up with a compromise agreement which essentially
stated that Nista is admitting the invalidity of the will. The compromise agreement was
approved by the trial court BUT Rosario de Ramos et al the other instituted heirs and
devisees intervened. The trial court allowed the intervention and set aside the
compromise agreement. Rosario de Ramos et al alleged that the Guerras repudiated their
shares when they abandoned Danila and committed acts of ingratitude against her.
Eventually, the probate court admitted the will to probate. The decision was appealed by the
Guerras. The Court of Appeals reversed the decision of the probate court. The CA ruled that
there was a failure to prove that Danila was in the presence of the instrumental witnesses
when she signed the will this was because two of the instrumental witnesses (Sarmiento
and Paz) testified in court that the will was already signed by Danila when they affixed their
signatures.
HOWEVER, Atty. Ricardo Barcenas, the Notary Public before whom the will was executed
and who assisted in the execution, vehemently assailed the testimony of the two witnesses.
He affirmed Danila and the three instrumental witnesses were in each others presence
when the will was signed by them. Another lawyer, who was also present during the
execution of the will, corroborated the testimony of Atty. Barcenas.

ISSUE: Whether or not the Court of Appeals is correct in not allowing the will to probate.
HELD: No. The attestation clause was signed by the instrumental witnesses. This serves as
their admissions of the due execution of the will and thus preventing them from
prevaricating later on by testifying against the wills due execution.
The execution of the same was evidently supervised by Atty. Ricardo Barcenas and before
whom the deeds were also acknowledged. The solemnity surrounding the execution of a
will is attended by some intricacies not usually within the comprehension of an ordinary
layman. The object is to close the door against bad faith and fraud, to avoid substitution of
the will and testament, and to guarantee their truth and authenticity. There is a presumption
in the regularity of the performance of a lawyer with his duty as a notary public. There has
been no evidence to show that Barcenas has been remiss in his duty nor were there any
allegations of fraud against him. In fact, the authenticity of Danilas and the witnesses
signature was never questioned.
The attestation clauses, far from being deficient, were properly signed by the attesting
witnesses. Neither is it disputed that these witnesses took turns in signing the will and
codicil in the presence of each other and the testatrix. Both instruments were duly
acknowledged before a Notary Public who was all the time present during the execution.
Subscribing witnesses may forget or exaggerate what they really know, saw, heard or did;
they may be biased and, therefore, tell only half-truths to mislead the court or favor one
party to the prejudice of the others. As a rule, if any or all of the subscribing witnesses testify
against the due execution of the will, or do not remember having attested to it, or are
otherwise of doubtful credibility, the will may, nevertheless, be allowed if the court is
satisfied from the testimony of other witnesses and from all the evidence presented that the
will was executed and attested in the manner required by law.
In weighing the testimony of the attesting witnesses to a will, the statements of a competent
attorney, who has been charged with the responsibility of seeing to the proper execution of
the instrument, is entitled to greater weight than the testimony of a person casually called to
participate in the act, supposing of course that no motive is revealed that should induce the
attorney to prevaricate. The reason is that the mind of the attorney being conversant of the
instrument, is more likely to become fixed on details, and he is more likely than other
persons to retain those incidents in his memory.

Manila
SECOND DIVISION

G.R. No. 103554 May 28, 1993

TEODORO CANEDA, LORENZA CANEDA, TERESA CANEDA, JUAN CABALLERO, AUREA
CABALLERO, OSCAR LAROSA, HELEN CABALLERO, SANTOS CABALLERO, PABLO
CABALLERO, VICTOR RAGA, MAURICIA RAGA, QUIRICA RAGA, RUPERTO ABAPO,
represented herein by his Attorney-in-Fact, ARMSTICIA * ABAPO VELANO, and CONSESO
CANEDA, represented herein by his heirs, JESUS CANEDA, NATIVIDAD CANEDA and
ARTURO CANEDA, petitioners,
vs.
HON. COURT OF APPEALS and WILLIAM CABRERA, as Special Administrator of the Estate
of Mateo Caballero, respondents.
Palma, Palma & Associates for petitioners.
Emilio Lumontad, Jr. for private respondents.

REGALADO, J.:
Presented for resolution by this Court in the present petition for review on certiorari is the issue of
whether or not the attestation clause contained in the last will and testament of the late Mateo
Caballero complies with the requirements of Article 805, in relation to Article 809, of the Civil Code.
The records show that 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 in Talisay,
Cebu before three attesting witnesses, namely, Cipriano Labuca, Gregorio Cabando and Flaviano
Toregosa. The said testator was duly assisted by his lawyer, Atty. Emilio Lumontad, and a notary
public, Atty. Filoteo Manigos, in the preparation of that last will. 1 It was declared therein, among other
things, that the testator was leaving by way of legacies and devises his real and personal properties to
Presentacion Gaviola, Angel Abatayo, Rogelio Abatayo, Isabelito Abatayo, Benoni G. Cabrera and
Marcosa Alcantara, all of whom do not appear to be related to the testator. 2
Four months later, or on April 4, 1979, Mateo Caballero himself filed a petition docketed as Special
Proceeding No. 3899-R before Branch II of the then Court of First Instance of Cebu seeking the
probate of his last will and testament. The probate court set the petition for hearing on August 20,
1979 but the same and subsequent scheduled hearings were postponed for one reason to another.
On May 29, 1980, the testator passed away before his petition could finally be heard by the probate
court. 3 On February 25, 1981, Benoni Cabrera, on of the legatees named in the will, sough his
appointment as special administrator of the testator's estate, the estimated value of which was
P24,000.00, and he was so appointed by the probate court in its order of March 6, 1981. 4
Thereafter, herein petitioners, claiming to be nephews and nieces of the testator, instituted a second
petition, entitled "In the Matter of the Intestate Estate of Mateo Caballero" and docketed as Special
Proceeding No. 3965-R, before Branch IX of the aforesaid Court of First Instance of Cebu. On
October 18, 1982, herein petitioners had their said petition intestate proceeding consolidated with
Special Proceeding No. 3899-R in Branch II of the Court of First Instance of Cebu and opposed
thereat the probate of the Testator's will and the appointment of a special administrator for his
estate. 5
Benoni Cabrera died on February 8, 1982 hence the probate court, now known as Branch XV of the
Regional Trial Court of Cebu, appointed William Cabrera as special administrator on June 21, 1983.

Thereafter, on July 20, 1983, it issued an order for the return of the records of Special Proceeding
No. 3965-R to the archives since the testate proceeding for the probate of the will had to be heard
and resolved first. On March 26, 1984 the case was reraffled and eventually assigned to Branch XII
of the Regional Trial Court of Cebu where it remained until the conclusion of the probate
proceedings. 6
In the course of the hearing in Special Proceeding No. 3899-R, herein petitioners appeared as
oppositors and objected to the allowance of the testator's will on the ground that on the alleged date
of its execution, the testator was already in the poor state of health such that he could not have
possibly executed the same. Petitioners likewise reiterated the issue as to the genuineness of the
signature of the testator therein. 7
On the other hand, one of the attesting witnesses, Cipriano Labuca, and the notary public Atty.
Filoteo Manigos, testified that the testator executed the will in question in their presence while he
was of sound and disposing mind and that, contrary to the assertions of the oppositors, Mateo
Caballero was in good health and was not unduly influenced in any way in the execution of his will.
Labuca also testified that he and the other witnesses attested and signed the will in the presence of
the testator and of each other. The other two attesting witnesses were not presented in the probate
hearing as the had died by then. 8
On April 5, 1988, the probate court rendered a decision declaring the will in question as the last will
and testament of the late Mateo Caballero, on the ratiocination that:
. . . The self-serving testimony of the two witnesses of the oppositors cannot
overcome the positive testimonies of Atty. Filoteo Manigos and Cipriano Labuca who
clearly told the Court that indeed Mateo Caballero executed the Last Will and
Testament now marked Exhibit "C" on December 5, 1978. Moreover, the fact that it
was Mateo Caballero who initiated the probate of his Will during his lifetime when he
caused the filing of the original petition now marked Exhibit "D" clearly underscores
the fact that this was indeed his Last Will. At the start, counsel for the oppositors
manifested that he would want the signature of Mateo Caballero in Exhibit "C"
examined by a handwriting expert of the NBI but it would seem that despite their
avowal and intention for the examination of this signature of Mateo Caballero in
Exhibit "C", nothing came out of it because they abandoned the idea and instead
presented Aurea Caballero and Helen Caballero Campo as witnesses for the
oppositors.
All told, it is the finding of this Court that Exhibit "C" is the Last Will and Testament of
Mateo Caballero and that it was executed in accordance with all the requisites of the
law. 9
Undaunted by the said judgment of the probate court, petitioners elevated the case in the Court of
Appeals in CA-G.R. CV No. 19669. They asserted therein that the will in question is null and void for
the reason that its attestation clause is fatally defective since it fails to specifically state that the
instrumental witnesses to the will witnessed the testator signing the will in their presence and that
they also signed the will and all the pages thereof in the presence of the testator and of one another.
On October 15, 1991, respondent court promulgated its decision 10 affirming that of the trial court, and
ruling that the attestation clause in the last will of Mateo Caballero substantially complies with Article 805
of the Civil Code, thus:

The question therefore is whether the attestation clause in question may be

considered as having substantialy complied with the requirements of Art. 805 of the
Civil Code. What appears in the attestation clause which the oppositors claim to be
defective is "we do certify that the testament was read by him and the attestator,
Mateo Caballero, has published unto us the foregoing will consisting of THREE
PAGES, including the acknowledgment, each page numbered correlatively in letters
of the upper part of each page, as his Last Will and Testament, and he has signed
the same and every page thereof, on the spaces provided for his signature and on
the left hand margin in the presence of the said testator and in the presence of each
and all of us (emphasis supplied).
To our thinking, this is sufficient compliance and no evidence need be presented to
indicate the meaning that the said will was signed by the testator and by them (the
witnesses) in the presence of all of them and of one another. Or as the language of
the law would have it that the testator signed the will "in the presence of the
instrumental witnesses, and that the latter witnessed and signed the will and all the
pages thereof in the presence of the testator and of one another." If not completely or
ideally perfect in accordance with the wordings of Art. 805 but (sic) the phrase as
formulated is in substantial compliance with the requirement of the law." 11
Petitioners moved for the reconsideration of the said ruling of respondent court, but the same was
denied in the latter's resolution of January 14, 1992, 12 hence this appeal now before us. Petitioners
assert that respondent court has ruled upon said issue in a manner not in accord with the law and settled
jurisprudence on the matter and are now questioning once more, on the same ground as that raised
before respondent court, the validity of the attestation clause in the last will of Mateo Caballero.
We find the present petition to be meritorious, as we shall shortly hereafter, after some prefatory
observations which we feel should be made in aid of the rationale for our resolution of the
controversy.
1. A will has been defined as a species of conveyance whereby a person is permitted, with the
formalities prescribed by law, to control to a certain degree the disposition of his estate after his
death. 13 Under the Civil Code, there are two kinds of wills which a testator may execute. 14 the first kind is
the ordinary or attested will, the execution of which is governed by Articles 804 to 809 of the Code. Article
805 requires that:
Art. 805. Every will, other than a holographic will, must be subscribed at the end
thereof by the testator himself or by the testator's name written by some other person
in his presence, and by his express direction, and attested and subscribed by three
or more credible witnesses in the presence of the testator and of one another.
The testator or the person requested by him to write his name and the instrumental
witnesses of the will, shall also sign, as aforesaid, each and every page thereof,
except the last, on the left margin, and all the pages shall be numbered correlatively
in letters placed on the upper part of each page.
The attestation should state the number of pages used upon which the will is written,
and the fact that the testator signed the will and every page thereof, or caused some
other person to write his name, under his express direction, in the presence of the
instrumental witnesses, and that the latter witnessed and signed the will and all the
pages thereof in the presence of the testator and of one another.

If the attestation clause is in a language not known to the witness, it shall be

interpreted to them.
In addition, the ordinary will must be acknowledged before a notary public by a testator and the
attesting witness.15 hence it is likewise known as notarial will. Where the attestator is deaf or deaf-mute,
Article 807 requires that he must personally read the will, if able to do so. Otherwise, he should designate
two persons who would read the will and communicate its contents to him in a practicable manner. On the
other hand, if the testator is blind, the will should be read to him twice; once, by anyone of the witnesses
thereto, and then again, by the notary public before whom it is acknowledged. 16
The other kind of will is the holographic will, which Article 810 defines as one that is entirely written,
dated, and signed by the testator himself. This kind of will, unlike the ordinary type, requires no
attestation by witnesses. A common requirement in both kinds of will is that they should be in writing
and must have been executed in a language or dialect known to the testator. 17
However, in the case of an ordinary or attested will, its attestation clause need not be written in a
language or dialect known to the testator since it does not form part of the testamentary disposition.
Furthermore, the language used in the attestation clause likewise need not even be known to the
attesting witnesses. 18 The last paragraph of Article 805 merely requires that, in such a case, the
attestation clause shall be interpreted to said witnesses.
An attestation clause refers to that part of an ordinary will whereby the attesting witnesses certify
that the instrument has been executed before them and to the manner of the execution the
same. 19 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. 20 It is made for the purpose of preserving in a permanent form a
record of the facts that attended the execution of a particular will, so that in case of failure of the memory
of the attesting witnesses, or other casualty, such facts may still be proved. 21
Under the third paragraph of Article 805, such a clause, the complete lack of which would result in
the invalidity of the will, 22 should state (1) the number of the pages used upon which the will is written;
(2) that the testator signed, or expressly caused another to sign, the will and every page thereof in the
presence of the attesting witnesses; and (3) that theattesting witnesses witnessed the signing by the
testator of the will and all its pages, and that said witnesses also signed the will and every page thereof in
the presence of the testator and of one another.
The purpose of the law in requiring the clause to state the number of pages on which the will is
written is to safeguard against possible interpolation or omission of one or some of its pages and to
prevent any increase or decrease in the pages; 23 whereas the subscription of the signature of the
testator and the attesting witnesses is made for the purpose of authentication and identification, and thus
indicates that the will is the very same instrument executed by the testator and attested to by the
witnesses. 24
Further, by attesting and subscribing to the will, the witnesses thereby declare the due execution of
the will as embodied in the attestation clause. 25 The attestation clause, therefore, provide strong legal
guaranties for the due execution of a will and to insure the authenticity thereof. 26 As it appertains only to
the witnesses and not to the testator, it need be signed only by them. 27 Where it is left unsigned, it would
result in the invalidation of the will as it would be possible and easy to add the clause on a subsequent
occasion in the absence of the testator and its witnesses. 28
In its report, the Code Commission commented on the reasons of the law for requiring the formalities
to be followed in the execution of wills, in the following manner:

The underlying and fundamental objectives permeating the provisions on the law on
wills in this Project consists in the liberalization of the manner of their execution with
the end in view of giving the testator more freedom in expressing his last wishes, but
with sufficient safeguards and restrictions to prevent the commission of fraud and the
exercise of undue and improper pressure and influence upon the testator.
This objective is in accord with the modern tendency with respect to the formalities in
the execution of wills. . . . 29
2. An examination of the last will and testament of Mateo Caballero shows that it is comprised of
three sheets all of which have been numbered correlatively, with the left margin of each page thereof
bearing the respective signatures of the testator and the three attesting witnesses. The part of the
will containing the testamentary dispositions is expressed in the Cebuano-Visayan dialect and is
signed at the foot thereof by the testator. The attestation clause in question, on the other hand, is
recited in the English language and is likewise signed at the end thereof by the three attesting
witnesses hereto. 30 Since it is the proverbial bone of contention, we reproduce it again for facility of
reference:
We, the undersigned attesting Witnesses, whose Residences and postal addresses
appear on the Opposite of our respective names, we do hereby certify that the
Testament was read by him and the testator, MATEO CABALLERO; has published
unto us the foregoing Will consisting of THREE PAGES, including the
Acknowledgment, each page numbered correlatively in the letters on the upper part
of each page, as his Last Will and Testament and he has the same and every page
thereof, on the spaces provided for his signature and on the left hand margin, in the
presence of the said testator and in the presence of each and all of us.
It will be noted that Article 805 requires that the witness should both attest and subscribe to the will
in the presence of the testator and of one another. "Attestation" and "subscription" differ in meaning.
Attestation is the act of senses, while subscription is the act of the hand. The former is mental, the
latter mechanical, and to attest a will is to know that it was published as such, and to certify the facts
required to constitute an actual and legal publication; but to subscribe a paper published as a will is
only to write on the same paper the names of the witnesses, for the sole purpose of identification. 31
In Taboada vs. Rizal, 32 we clarified that attestation consists in witnessing the testator's execution of the
will in order to see and take note mentally that those things are done which the statute requires for the
execution of a will and that the signature of the testator exists as a fact. On the other hand, subscription is
the signing of the witnesses' names upon the same paper for the purpose of identification of such paper
as the will which was executed by the testator. As it involves a mental act, there would be no means,
therefore, of ascertaining by a physical examination of the will whether the witnesses had indeed signed
in the presence of the testator and of each other unless this is substantially expressed in the attestation.
It is contended by petitioners that the aforequoted attestation clause, in contravention of the express
requirements of the third paragraph of Article 805 of the Civil Code for attestation clauses, fails to
specifically state the fact that the attesting witnesses 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. We agree.
What is fairly apparent upon a careful reading of the attestation clause herein assailed is the fact that
while it recites that the testator indeed signed the will and all its pages in the presence of the three
attesting witnesses and states as well the number of pages that were used, the same 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 spaces 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." On the other
hand, although the words "in the presence of the testator and in the presence of each and all of us"
may, at first blush, appear to likewise signify and refer to the witnesses, it must, however, be
interpreted as referring only to the testator signing in the presence of the witnesses since said
phrase immediately follows the words "he has signed the same and every page thereof, on the
spaces provided for his signature and on the left hand margin." What is then clearly lacking, in the
final logical analysis , is the statement that the witnesses signed the will and every page thereof in
the presence of the testator and of one another.
It is our considered view that the absence of that 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
admitted to probate. Petitioners are correct in pointing out that the aforestated defect in the
attestation clause obviously cannot be characterized as merely involving the form of the will or the
language used therein which would warrant the application of the substantial compliance rule, as
contemplated in the pertinent provision thereon in the Civil Code, to wit:
Art. 809. In the absence of bad faith, forgery, or fraud, or undue and improper
pressure and influence, defects and imperfections in the form of attestation or in the
language used therein shall not render the will invalid if it is not proved that the will
was in fact executed and attested in substantial compliance with all the requirements
of article 805" (Emphasis supplied.)
While it may be true that the attestation clause is indeed subscribed at the end thereof and at the left
margin of each page by the three attesting witnesses, it certainly cannot be conclusively inferred
therefrom that the said witness affixed their respective signatures in the presence of the testator and
of each other since, as petitioners correctly observed, the presence of said signatures only
establishes the fact that it was indeed signed, but it does not prove that the attesting witnesses did
subscribe to the will in the presence of the testator and of each other. The execution of a will is
supposed to be one act so that where the testator and the witnesses sign on various days or
occasions and in various combinations, the will cannot be stamped with the imprimatur of
effectivity. 33
We believe that the further comment of former Justice J.B.L. Reyes 34 regarding Article 809, wherein
he urged caution in the application of the substantial compliance rule therein, is correct and should be
applied in the case under consideration, as well as to future cases with similar questions:
. . . The rule must be limited to disregarding those defects that can be supplied by an
examination of the will itself: whether all the pages are consecutively numbered;
whether the signatures appear in each and every page; whether the subscribing
witnesses are three or the will was notarized. All theses are facts that the will itself
can reveal, and defects or even omissions concerning them in the attestation clause
can be safely disregarded. But the total number of pages, and whether all persons
required to sign did so in the presence of each other must substantially appear in the
attestation clause, being the only check against perjury in the probate proceedings.
(Emphasis ours.)

3. We stress once more that under Article 809, the defects and imperfections must only be with
respect to the form of the attestation or the language employed therein. Such defects or
imperfections would not render a will invalid should it be proved that the will was really executed and
attested in compliance with Article 805. In this regard, however, the manner of proving the due
execution and attestation has been held to be limited to merely an examination of the will itself
without resorting to evidence aliunde, whether oral or written.
The foregoing considerations do not apply where 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. 35 In such a situation, the defect is not only in the form or language of the attestation clause
but the total absence of a specific element required by Article 805 to be specifically stated in the
attestation clause of a will. That is precisely the defect complained of in the present case since there is no
plausible way by which we can read into the questioned attestation clause statement, or an implication
thereof, that the attesting witness did actually bear witness to the signing by the testator of the will and all
of its pages and that said instrumental witnesses also signed the will and every page thereof in the
presence of the testator and of one another.
Furthermore, the rule on substantial compliance in Article 809 cannot be revoked or relied on by
respondents since it presupposes that the defects in the attestation clause can be cured or supplied
by the text of the will or a consideration of matters apparent therefrom which would provide the data
not expressed in the attestation clause or from which it may necessarily be gleaned or clearly
inferred that the acts not stated in the omitted textual requirements were actually complied within the
execution of the will. In other words, defects must be remedied by intrinsic evidence supplied by the
will itself.
In the case at bar, contrarily, proof of the acts required to have been performed by the attesting
witnesses can be supplied by only extrinsic evidence thereof, since an overall appreciation of the
contents of the will yields no basis whatsoever from with such facts may be plausibly deduced. What
private respondent insists on are the testimonies of his witnesses alleging that they saw the
compliance with such requirements by the instrumental witnesses, oblivious of the fact that he is
thereby resorting to extrinsic evidence to prove the same and would accordingly be doing by the
indirection what in law he cannot do directly.
4. Prior to the advent of the Civil Code on August 30, 1950, there was a divergence of views as to
which manner of interpretation should be followed in resolving issues centering on compliance with
the legal formalities required in the execution of wills. The formal requirements were at that time
embodied primarily in Section 618 of Act No. 190, the Code of Civil Procedure. Said section was
later amended by Act No. 2645, but the provisions respecting said formalities found in Act. No. 190
and the amendment thereto were practically reproduced and adopted in the Civil Code.
One view advance the liberal or substantial compliance rule. This was first laid down in the case
of Abangan vs. Abangan, 36 where it was held 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 guarantee their truth and authenticity. Therefore, the laws on this subject should be
interpreted in such a way as to attain these primordial ends. Nonetheless, it was also emphasized that
one must not lose sight of the fact that it is not the object of the law to restrain and curtail the exercise of
the right to make a will, hence when an interpretation already given assures such ends, any other
interpretation whatsoever that adds nothing but demands more requisites entirely unnecessary, useless
and frustrative of the testator's last will, must be disregarded. The subsequent cases of Avera vs.
Garcia, 37 Aldaba vs. Roque, 38 Unson vs. Abella, 39Pecson vs. Coronel, 40 Fernandez vs. Vergel de Dios, et
al., 41 and Nayve vs. Mojal, et al. 42 all adhered to this position.

The other view which advocated the rule that statutes which prescribe the formalities that should be
observed in the execution of wills are mandatory in nature and are to be strictly construed was
followed in the subsequent cases of In the Matter of the Estate of Saguinsin, 43 In re Will of
Andrada, 44 Uy Coque vs. Sioca, 45 In re Estate of Neumark, 46 and Sano vs. Quintana. 47
Gumban vs. Gorecho, et al., 48 provided the Court with the occasion to clarify the seemingly conflicting
decisions in the aforementioned cases. In said case of Gumban, the attestation clause had failed to state
that the witnesses signed the will and each and every page thereof on the left margin in the presence of
the testator. The will in question was disallowed, with these reasons therefor:
In support of their argument on the assignment of error above-mentioned, appellants
rely on a series of cases of this court beginning with (I)n the Matter of the (E)state of
Saguinsin ([1920], 41 Phil., 875), continuing with In re Will of Andrada [1921], 42
Phil., 180), Uy Coque vs. Navas L. Sioca [1922], 43 Phil., 405), and In re Estate of
Neumark ([1923], 46 Phil., 841), and ending with Sano vs. Quintana ([1925], 48 Phil.,
506). Appellee counters with the citation of a series of cases beginning with Abangan
vs. Abangan ([1919], 40 Phil., 476), continuing through Aldaba vs. Roque ([1922], 43
Phil., 378), and Fernandez vs. Vergel de Dios ([1924], 46 Phil., 922), and culminating
in Nayve vs. Mojal and Aguilar ([1924], 47 Phil., 152). In its last analysis, our task is
to contrast and, if possible, conciliate the last two decisions cited by opposing
counsel, namely, those of Sano vs. Quintana,supra, and Nayve vs. Mojal and
Aguilar, supra.
In the case of Sano vs. Quintana, supra, it was decided that an attestation clause
which does not recite that the witnesses signed the will and each and every page
thereof on the left margin in the presence of the testator is defective, and such a
defect annuls the will. The case of Uy Coque vs. Sioca, supra, was cited, but the
case of Nayve vs. Mojal and Aguilar, supra, was not mentioned. In contrast, is the
decision in Nayve vs. Mojal and Aguilar, supra, wherein it was held that the
attestation clause must estate the fact that the testator and the witnesses reciprocally
saw the signing of the will, for such an act cannot be proved by the mere exhibition of
the will, if it is not stated therein. It was also held that the fact that the testator and the
witnesses signed each and every page of the will can be proved also by the mere
examination of the signatures appearing on the document itself, and the omission to
state such evident facts does not invalidate the will.
It is a habit of courts to reaffirm or distinguish previous cases; seldom do they admit
inconsistency in doctrine. Yet here, unless aided impossible to reconcile the Mojal
and Quintana decisions. They are fundamentally at variance. If we rely on one, we
affirm. If we rely on the other, we reverse.
In resolving this puzzling question of authority, three outstanding points may be
mentioned. In the first place, the Mojal, decision was concurred in by only four
members of the court, less than a majority, with two strong dissenting opinions; the
Quintana decision was concurred in by seven members of the court, a clear majority,
with one formal dissent. In the second place, the Mojal decision was promulgated in
December, 1924, while the Quintana decision was promulgated in December, 1925;
the Quintana decision was thus subsequent in point of time. And in the third place,
the Quintana decision is believed more nearly to conform to the applicable provisions
of the law.

The right to dispose of property by will is governed entirely by statute. The law of the
case is here found in section 61 of the Code of Civil Procedure as amended by Act
No. 2645, and in section 634 of the same Code, as unamended. It is in part provided
in section 61, as amended that "No will . . .shall be valid . . . unless . . .." It is further
provided in the same section that "The attestation shallstate the number of sheets or
pages used, upon which the will is written, and the fact that the testator signed the
will and every page thereof, or caused some other person to write his name, under
his express direction, in the presence of three witnesses, and the latter witnessed
and signed the will and all pages thereof in the presence of the testator and of each
other." Codal section 634 provides that "The will shall be disallowed in either of the
following case: 1. If not executed and attested as in this Act provided." The law not
alone carefully makes use of the imperative, but cautiously goes further and makes
use of the negative, to enforce legislative intention. It is not within the province of the
courts to disregard the legislative purpose so emphatically and clearly expressed.
We adopt and reaffirm the decision in the case of Sano vs. Quintana, supra, and, to
the extent necessary, modify the decision in the case of Nayve vs. Mojal and
Aguilar, supra. (Emphases in the original text).
But after the Gumban clarificatory pronouncement, there were decisions of the Court that once more
appeared to revive the seeming diversity of views that was earlier threshed out therein. The cases
of Quinto vs. Morata, 49Rodriguez vs. Alcala, 50 Enchevarria vs. Sarmiento, 51 and Testate Estate of
Toray 52 went the way of the ruling as restated in Gumban. But De Gala vs. Gonzales, et al., 53 Rey vs.
Cartagena, 54 De Ticson vs. De Gorostiza, 55 Sebastian vs. Panganiban, 56 Rodriguez vs. Yap, 57 Grey vs.
Fabia, 58 Leynez vs. Leynez, 59 Martir vs. Martir, 60 Alcala vs. De Villa,61 Sabado vs.
Fernandez, 62 Mendoza vs. Pilapil, 63 and Lopez vs. Liboro, 64 veered away from the strict interpretation rule
and established a trend toward an application of the liberal view.
The Code Commission, cognizant of such a conflicting welter of views and of the undeniable
inclination towards a liberal construction, recommended the codification of the substantial
compliance rule, as it believed this rule to be in accord with the modern tendency to give a liberal
approach to the interpretation of wills. Said rule thus became what is now Article 809 of the Civil
Code, with this explanation of the Code Commission:
The present law provides for only one form of executing a will, and that is, in
accordance with the formalities prescribed by Section 618 of the Code of Civil
Procedure as amended by Act No. 2645. The Supreme Court of the Philippines had
previously upheld the strict compliance with the legal formalities and had even said
that the provisions of Section 618 of the Code of Civil Procedure, as amended
regarding the contents of the attestation clause were mandatory, and noncompliance therewith invalidated the will (Uy Coque vs. Sioca, 43 Phil. 405). These
decisions necessarily restrained the freedom of the testator in disposing of his
property.
However, in recent years the Supreme Court changed its attitude and has become
more liberal in the interpretation of the formalities in the execution of wills. This liberal
view is enunciated in the cases ofRodriguez vs. Yap, G.R. No. 45924, May 18,
1939; Leynez vs. Leynez, G.R. No. 46097, October 18, 1939; Martir vs. Martir, G.R.
No. 46995, June 21, 1940; and Alcala vs. Villa, G.R. No. 47351, April 18, 1941.
In the above mentioned decisions of our Supreme Court, it has practically gone back
to the original provisions of Section 618 of the Code of Civil Procedure before its

amendment by Act No. 2645 in the year 1916. To turn this attitude into a legislative
declaration and to attain the main objective of the proposed Code in the liberalization
of the manner of executing wills, article 829 of the Project is recommended, which
reads:
"Art. 829. In the absence of bad faith, forgery, or fraud, or undue and
improper pressure and influence, defects and imperfections in the
form of attestation or in the language used therein shall not render
the will invalid if it is proved that the will was in fact executed and
attested in substantial compliance with all the requirements of article
829."65
The so-called liberal rule, the Court said in Gil vs. Murciano, 66 "does not offer any puzzle or difficulty,
nor does it open the door to serious consequences. The later decisions do tell us when and where to
stop; they draw the dividing line with precision. They do not allow evidence aliunde to fill a void in any part
of the document or supply missing details that should appear in the will itself. They only permit a probe
into the will, an exploration into its confines, to ascertain its meaning or to determine the existence or
absence of the requisite formalities of law. This clear, sharp limitation eliminates uncertainty and ought to
banish any fear of dire results."
It may thus be stated that the rule, as it now stands, is that omissions which can be supplied by an
examination of the will itself, without the need of resorting to extrinsic evidence, will not be fatal and,
correspondingly, would not obstruct the allowance to probate of the will being assailed. However,
those omissions which cannot be supplied except by evidence aliunde would result in the
invalidation of the attestation clause and ultimately, of the will itself.67
WHEREFORE, the petition is hereby GRANTED and the impugned decision of respondent court is
hereby REVERSED and SET ASIDE. The court a quo is accordingly directed to forthwith DISMISS
its Special Proceeding No. 3899-R (Petition for the Probate of the Last Will and Testament of Mateo
Caballero) and to REVIVE Special Proceeding No. 3965-R (In the matter of the Intestate Estate of
Mateo Caballero) as an active case and thereafter duly proceed with the settlement of the estate of
the said decedent.
SO ORDERED.
Narvasa, C.J., Padilla, Regalado, and Nocon, JJ., concur.

Icasiano v. Icasiano Digest

Icasiano vs. Icasiano
G.R. No. L-18979 June 30, 1964

Facts:
1. Celso Icasiano, filed a petition for the probate of the will of Josefa
Villacorte and for his appointment as executor thereof. It appears from the

evidence that the testatrix died on September 12, 1958. She executed a
will in Tagalog, and through the help of her lawyer, it was prepared in
duplicates, an original and a carbon copy.
2. On the day that it was subscribed and attested, the lawyer only
brought the original copy of the will while the carbon duplicate (unsigned)
was left in Bulacan. One of the witnesses failed to sign one of the pages in
the original copy but admitted he may have lifted 2 pages simultaneously
instead when he signed the will. Nevertheless, he affirmed that the will
was signed by the testator and other witnesses in his presence.
Issue: Whether or not the failure of one of the subscribing
witnesses to affix his signature to a page is sufficient to deny
probate of the will
RULING: No, the failure to sign was entirely through pure oversight or
mere inadvertence. Since the duplicated bore the required signatures, this
proves that the omission was not intentional. Even if the original is in
existence, a duplicate may still be admitted to probate since the original
is deemed to be defective, then in law, there is no other will bu the duly
signed carbon duplicate and the same can be probated.
The law should not be strictly and literally interpreted as to penalize the
testatrix on account of the inadvertence of a single witness over whose
conduct she has no control of. Where the purpose of the law is to
guarantee the identity of the testament and its component pages, and
there is no intentional or deliberate deviation existed.
Note that this ruling should not be taken as a departure from the rules
that the will should be signed by the witnesses on every page. The carbon
copy duplicate was regular in all respects.
Related Posts Widget

EN BANC
G.R. No. L-15153

August 31, 1960

In the Matter of the summary settlement of the Estate of the deceased

ANACLETA ABELLANA. LUCIO BALONAN, petitioner-appellee,
vs.
EUSEBIA ABELLANA, et al., oppositors-appellants.

T. de los Santos for appellee.

Climaco and Climaco for appellants.
LABARADOR, J.:
Appeal from a decision of the Court of First Instance of Zamboanga City admitting to probate the will
of one Anacleta Abellana. The case was originally appealed to the Court of Appeals where the
following assignment of error is made:
The appellants respectfully submit that the Trial Court erred in holding that the supposed
testament, Exh. "A", was signed in accordance with law; and in admitting the will to probate.
In view of the fact that the appeal involves a question of law the said court has certified the case to
us.
The facts as found by the trial court are as follows:
It appears on record that the last Will and Testament (Exhibit "A"), which is sought to be
probated, is written in the Spanish language and consists of two (2) typewritten pages
(pages 4 and 5 of the record) double space. The first page is signed by Juan Bello and
under his name appears typewritten "Por la testadora Anacleta Abellana, residence
Certificate A-1167629, Enero 20, 1951, Ciudad de Zamboanga', and on the second page
appears the signature of three (3) instrumental witnesses Blas Sebastian, Faustino Macaso
and Rafael Ignacio, at the bottom of which appears the signature of T. de los Santos and
below his signature is his official designation as the notary public who notarized the said
testament. On the first page on the left margin of the said instrument also appear the
signatures of the instrumental witnesses. On the second page, which is the last page of said
last Will and Testament, also appears the signature of the three (3) instrumental witnesses
and on that second page on the left margin appears the signature of Juan Bello under whose
name appears handwritten the following phrase, "Por la Testadora Anacleta Abellana'. The
will is duly acknowledged before Notary Public Attorney Timoteo de los Santos. (Emphasis
supplied)
The appeal squarely presents the following issue: Does the signature of Dr. Juan A. Abello above the
typewritten statement "Por la Testadora Anacleta Abellana . . ., Ciudad de Zamboanga," comply with
the requirements of law prescribing the manner in which a will shall be executed?
The present law, Article 805 of the Civil Code, in part provides as follows:
Every will, other than a holographic will, must be subscribed at the end thereof by the
testator himself or by the testator's name written by some other person in his presence, and
by his express direction, and attested and subscribed by three or more credible witness in
the presence of the testator and of one another. (Emphasis supplied.)
The clause "must be subscribed at the end thereof by the testator himself or by the testator's name
written by some other person in his presence and by his express direction," is practically the same
as the provisions of Section 618 of the Code of Civil Procedure (Act No. 190) which reads as follows:
No will, except as provided in the preceding section shall be valid to pass any estate, real or
personal, nor charge or affect the same, unless it be in writing and signed by the testator, or
by the testator's name written by some other person in his presence, and by his express

direction, and attested and subscribed by three or more credible witnesses in the presence
of the testator and of each other. . . . (Emphasis supplied).
Note that the old law as well as the new require that the testator himself sign the will, or if he cannot
do so, the testator's name must be written by some other person in his presence and by his express
direction. Applying this provision this Court said in the case of Ex Parte Pedro Arcenas, et al., Phil.,
700:
It will be noticed from the above-quoted section 618 of the Code of Civil Procedure that
where the testator does not know how, or is unable, to sign, it will not be sufficient that one of
the attesting witnesses signs the will at the testator's request, the notary certifying thereto as
provided in Article 695 of the Civil Code, which, in this respect, was modified by section 618
above referred to, but it is necessary that the testator's name be written by the person
signing in his stead in the place where he could have signed if he knew how or was able to
do so, and this in the testator's presence and by his express direction; so that a will signed in
a manner different than that prescribed by law shall not be valid and will not be allowed to be
probated.
Where a testator does not know how, or is unable for any reason, to sign the will himself, it
shall be signed in the following manner:
John Doe by the testator, Richard Doe; or in this form: "By the testator, John Doe, Richard
Doe." All this must be written by the witness signing at the request of the testator.
Therefore, under the law now in force, the witness Naval A. Vidal should have written at the
bottom of the will the full name of the testator and his own name in one forms given above.
He did not do so, however, and this is failure to comply with the law is a substantial defect
which affects the validity of the will and precludes its allowance, notwithstanding the fact that
no one appeared to oppose it.
The same ruling was laid down in the case of Cuison vs. Concepcion, 5 Phil., 552. In the case
of Barut vs. Cabacungan, 21 Phil., 461, we held that the important thing is that it clearly appears that
the name of the testatrix was signed at her express direction; it is unimportant whether the person
who writes the name of the testatrix signs his own or not. Cases of the same import areas follows:
(Ex Parte Juan Ondevilla, 13 Phil., 479, Caluya vs.Domingo, 27 Phil., 330; Garcia vs. Lacuesta, 90
Phil., 489).
In the case at bar the name of the testatrix, Anacleta Abellana, does not appear written under the will
by said Abellana herself, or by Dr. Juan Abello. There is, therefore, a failure to comply with the
express requirement in the law that the testator must himself sign the will, or that his name be affixed
thereto by some other person in his presence and by his express direction.
It appearing that the above provision of the law has not been complied with, we are constrained to
declare that the said will of the deceased Anacleta Abellana may not be admitted to probate.
WHEREFORE, the decision appealed from is hereby set aside and the petition for the probate of the
will denied. With costs against petitioner.
Paras, C.J., Bengzon, Padilla, Concepcion, Reyes, J.B.L., Barrera, Gutierrez David and Dizon,
JJ., concur.

90 Phil 189 Succession Signing Using an X Mark

Antero Mercado left a will dated January 3, 1943. The will appears to have been signed by
Atty. Florentino Javier as he wrote the name of Antero Mercado and his name for the
testatior on the will. HOWEVER, immediately after Antero Mercados will, Mercado himself
placed an X mark.
The attestation clause was signed by three instrumental witnesses. Said attestation clause
states that all pages of the will were signed in the presence of the testator and witnesses,
and the witnesses in the presence of the testator and all and each and every one of us
witnesses. The attestation clause however did not indicate that Javier wrote Antero
Mercados name.
ISSUE: Whether or not the will is valid.
HELD: No. The attestation clause is fatally defective for failing to state that Antero Mercado
caused Atty. Florentino Javier to write the testators name under his express direction, as
required by Section 618 of the Code of Civil Procedure.
But is there really a need for such to be included in the attestation clause considering that
even though Javier signed for Antero, Antero himself placed his signature by virtue of the
X mark, and by that, Javiers signature is merely a surplusage? That the placing of the X
mark is the same as placing Anteros thumb mark.
No. Its not the same as placing the testators thumb mark. It would have been different had
it been proven that the X mark was Anteros usual signature or was even one of the ways
by which he signs his name. If this were so, failure to state the writing by somebody else
would have been immaterial, since he would be considered to have signed the will himself.

ose Lopez vs Liboro

July 17, 2012
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81 PHIL 429 Succession Pagination of the Will Witnesses to a Will Language of the
Will Thumb Mark as Signature
In 1947, Don Sixto Lopez executed a will where Jose Lopez was named an heir. Agustin
Liboro questioned the validity of the said will based on the following ground, among others:
1.

The first sheet, which is also the first page) is not paged either in letters or in Arabic
numerals.

2.

That the witnesses to the will provided contradictory statements.

3.

That Don Sixto used his thumb mark to sign the will.

4.

There was no indication in the will that the language used therein is known by Don
Sixto Lopez.
ISSUE: Whether or not the will is valid.
HELD: Yes, the will is valid.

1.

The omission to put a page number on the first sheet, if that be necessary, is
supplied by other forms of identification more trustworthy than the conventional numeral
words or characters. The unnumbered page is clearly identified as the first page by the

internal sense of its contents considered in relation to the contents of the second page. By
their meaning and coherence, the first and second lines on the second page are undeniably
a continuation of the last sentence of the testament, before the attestation clause, which
starts at the bottom of the preceding page. Further, the first pages is captioned
Testamento.
2.

The contradictions in the testimony of the instrumental witnesses as are set out in
Liboros appelants brief are incidents not all of which every one of the witnesses can be
supposed to have perceived, or to recall in the same order in which they occurred.

3.

Don Sixto affixed his thumb mark to the instrument instead of signing his name. The
reason for this was that he was suffering from partial paralysis. There is nothing curious or
suspicious in the fact that the testator chose the use of mark as the means of authenticating
his will. It was a matter of taste or preference. Both ways are good.

4.

There is no statutory requirement which prescribes that it must be expressly placed

in the will that the testator knows the language being used therein. It is a matter that may be
established by proof aliunde.

05 January 2013

Testate Estate of Cagro v. Cagro Digest

Testate Estate of Cagro vs. Cagro
G.R. L-5826

Facts:
1. The case is an appeal interposed by the oppositors from a decision of
the CFI of Samar which admitted to probate a will allegedly executed by
Vicente Cagro who died in Pambujan, Samar on Feb. 14, 1949.

2. The appellants insisted that the will is defective because the

attestation was not signed by the witnesses at the bottom although the

page containing the same was signed by the witnesses on the left hand
margin.

3. Petitioner contended that the signatures of the 3 witnesses on the left

hand margin conform substantially to law and may be deemed as their
signatures to the attestation clause.

Issue: Whether or not the will is valid

HELD: Will is not valid. The attestation clause is a memorandum of the

facts attending the execution of the will. It is 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 negatives
their participation.

Moreover, the signatures affixed on the let hand margin is not substantial
conformance to the law. The said signatures were merely in conformance
with the requirement that the will must be signed on the left-hand margin
of all its pages. If the attestation clause is unsigned by the 3 witnesses at
the bottom, it would be easier to add clauses to a will on a subsequent
occasion and in the absence of the testator and any or all of the
witnesses.

The probate of the will is denied.

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. L-20357

November 25, 1967

IN THE MATTER OF THE PETITION FOR THE ALLOWANCE OF THE WILL OF GREGORIO
GATCHALIAN, deceased. PEDRO REYES GARCIA, petitioner-appellant,

vs.
FELIPE GATCHALIAN, AURORA G. CAMINS, ANGELES G. COSCA, FEDERICO G. TUBOG,
VIRGINIA G. TALANAY and ANGELES G. TALANAY, oppositors-appellees.
E. Debuque for petitioner-appellant.
E. L. Segovia for oppositors-appellees.
DIZON, J.:
This is an appeal taken by Pedro Reyes Garcia from the decision of the Court of First Instance of
Rizal in Special Proceedings No. 2623 denying the allowance of the will of the late Gregorio
Gatchalian, on the ground that the attesting witnesses did not acknowledge it before a notary public,
as required by law.
On March 15, 1967, Gregorio Gatchalian, a widower of 71 years of age, died in the municipality of
Pasig, Province of Rizal, leaving no forced heirs. On April 2 of the same year, appellant filed a
petition with the above named court for the probate of said alleged will (Exhibit "C") wherein he was
instituted as sole heir. Felipe Gatchalian, Aurora G. Camins, Angeles G. Cosca, Federico G. Tubog,
Virginia G. Talanay and Angeles G. Talanay, appellees herein, opposed the petition on the ground,
among others, that the will was procured by fraud; that the deceased did not intend the instrument
signed by him to be as his will; and that the deceased was physically and mentally incapable of
making a will at the time of the alleged execution of said will.
After due trial, the court rendered the appealed decision finding the document Exhibit "C" to be the
authentic last will of the deceased but disallowing it for failure to comply with the mandatory
requirement of Article 806 of the New Civil Code that the will must be acknowledged before a
notary public by the testator and the witnesses.
An examination of the document (Exhibit "C") shows that the same was acknowledged before a
notary public by the testator but not by the instrumental witnesses.
Article 806 of the New Civil Code reads as follows:
Every will must be acknowledged before a notary public by the testator and the witnesses.
The notary public shall not be required to retain a copy of the will, or file another with the
office of the Clerk of Court.
We have held heretofore that compliance with the requirement contained in the above legal
provision to the effect that a will must be acknowledged before a notary public by the testator and
also by the witnesses is indispensable for its validity (In re: Testate Estate of Alberto, G. R. No. L11948, April 29, 1959). As the document under consideration does not comply with this requirement,
it is obvious that the same may not be probated.
WHEREFORE, the decision appealed from is affirmed, with costs.
Makalintal, Bengzon, J.P., Zaldivar, Sanchez, Castro, Angeles and Fernando, JJ., concur.
Concepcion, C.J., and Reyes, J.B.L., J., took no part.
Republic of the Philippines
SUPREME COURT
Manila

FIRST DIVISION

G.R. No. L-32213 November 26, 1973

AGAPITA N. CRUZ, petitioner,
vs.
HON. JUDGE GUILLERMO P. VILLASOR, Presiding Judge of Branch I, Court of First Instance
of Cebu, and MANUEL B. LUGAY, respondents.
Paul G. Gorrez for petitioner.
Mario D. Ortiz for respondent Manuel B. Lugay.

ESGUERRA, J.:
Petition to review on certiorari the judgment of the Court First Instance of Cebu allowing the probate
of the last will a testament of the late Valente Z. Cruz. Petitioner-appellant Agapita N. Cruz, the
surviving spouse of the said decease opposed the allowance of the will (Exhibit "E"), alleging the will
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. Notwithstanding her objection, the Court allowed the probate of the said last
will and testament Hence this appeal by certiorari which was given due course.
The only question presented for determination, on which the decision of the case hinges, is whether
the supposed last will and testament of Valente Z. Cruz (Exhibit "E") was executed in accordance
with law, particularly Articles 805 and 806 of the new Civil Code, the first requiring at least three
credible witnesses to attest and subscribe to the will, and the second requiring the testator and the
witnesses to acknowledge the will before a notary public.
Of the three instrumental witnesses thereto, namely Deogracias T. Jamaloas Jr., Dr. Francisco
Paares and Atty. Angel H. Teves, Jr., one of them, the last named, is at the same time the Notary
Public before whom the will was supposed to have been acknowledged. Reduced to simpler terms,
the question was attested and subscribed by at least three credible witnesses in the presence of the
testator and of each other, considering that the three attesting witnesses must appear before the
notary public to acknowledge the same. As the third witness is the notary public himself, petitioner
argues that the result is that only two witnesses appeared before the notary public to acknowledge
the will. On the other hand, private respondent-appellee, Manuel B. Lugay, who is the supposed
executor of the will, following the reasoning of the trial court, maintains that there is substantial
compliance with the legal requirement of having at least three attesting witnesses even if the notary
public acted as one of them, bolstering up his stand with 57 American Jurisprudence, p. 227 which,
insofar as pertinent, reads as follows:
It is said that there are, practical reasons for upholding a will as against the purely
technical reason that one of the witnesses required by law signed as certifying to an
acknowledgment of the testator's signature under oath rather than as attesting the
execution of the instrument.

After weighing the merits of the conflicting claims of the parties, We are inclined to sustain that of the
appellant that the last will and testament in question was not executed in accordance with law. The
notary public before whom the will was acknowledged cannot be considered as the third
instrumental witness since he cannot acknowledge before himself his having signed the will. To
acknowledge before means to avow (Javellana v. Ledesma, 97 Phil. 258, 262; Castro v. Castro, 100
Phil. 239, 247); to own as genuine, to assent, to admit; and "before" means in front or preceding in
space or ahead of. (The New Webster Encyclopedic Dictionary of the English Language, p. 72; Funk
& Wagnalls New Standard Dictionary of the English Language, p. 252; Webster's New International
Dictionary 2d. p. 245.) Consequently, if the third witness were the notary public himself, he would
have to avow assent, or admit his having signed the will in front of himself. This cannot be done
because he cannot split his personality into two so that one will appear before the other to
acknowledge his participation in the making of the will. To permit such a situation to obtain would be
sanctioning a sheer absurdity.
Furthermore, the function of a notary public is, among others, to guard against any illegal or immoral
arrangement Balinon v. De Leon, 50 0. G. 583.) That function would defeated if the notary public
were one of the attesting instrumental witnesses. For them he would be interested sustaining the
validity of the will as it directly involves him and the validity of his own act. It would place him in
inconsistent position and the very purpose of acknowledgment, which is to minimize fraud (Report of
Code Commission p. 106-107), 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. (Mahilum v. Court Appeals, 64 0. G.
4017; 17 SCRA 482; Sawyer v. Cox, 43 Ill. 130). There are others holding that his signing merely as
notary in a will nonetheless makes him a witness thereon (Ferguson v. Ferguson, 47 S. E. 2d. 346;
In Re Douglas Will, N. Y. S. 2d. 641; Ragsdal v. Hill, 269 S. W. 2d. 911, Tyson Utterback, 122 So.
496; In Re Baybee's Estate 160 N. 900; W. Merill v. Boal, 132 A. 721;See also Trenwith v.
Smallwood, 15 So. 1030). But these authorities do not serve the purpose of the law in this
jurisdiction or are not decisive of the issue herein because the notaries public and witnesses referred
to aforecited cases merely acted as instrumental, subscribing attesting witnesses, and not
as acknowledging witnesses. He the notary public acted not only as attesting witness but also
acknowledging witness, a situation not envisaged by Article 805 of the Civil Code which reads:
ART. 806. Every will must be acknowledged before a notary public by the testator
and the witnesses. The notary public shall not be required to retain a copy of the will
or file another with the office of the Clerk of Court. [Emphasis supplied]
To allow the notary public to act as third witness, or one the attesting and acknowledging witnesses,
would have the effect of having only two attesting witnesses to the will which would be in
contravention of the provisions of Article 80 be requiring at least three credible witnesses to act as
such and of Article 806 which requires that the testator and the required number of witnesses must
appear before the notary public to acknowledge the will. The result would be, as has been said, that
only two witnesses appeared before the notary public for or that purpose. In the circumstances, the
law would not be duly in observed.
FOR ALL THE FOREGOING, the judgment appealed from is hereby reversed and the probate of the
last will and testament of Valente Z. Cruz (Exhibit "E") is declared not valid and hereby set aside.
Cost against the appellee.
Makalintal, C.J., Castro, Teehankee, Makasiar and Muoz Palma, JJ., concur.

The Lawphil Project - Arellano Law Foundation

Republic of the Philippines

SUPREME COURT
Manila
FIRST DIVISION

G.R. No. 74695 September 14, 1993

In the Matter of the Probate of the Last Will and Testament of the Deceased Brigido Alvarado,
CESAR ALVARADO, petitioner,
vs.
HON. RAMON G. GAVIOLA, JR., Presiding Justice, HON. MA. ROSARIO QUETULIO LOSA and
HON. LEONOR INES LUCIANO, Associate Justices, Intermediate Appellate Court, First
Division (Civil Cases), and BAYANI MA. RINO, respondents.
Vicente R. Redor for petitioner.
Bayani Ma. Rino for and in his own behalf.

BELLOSILLO, J.:
Before us is an appeal from the Decision dated 11 April 1986 1 of the First Civil Cases Division of the
then Intermediate Appellate Court, now Court of Appeals, which affirmed the Order dated 27 June
1983 2 of the Regional Trial Court of Sta. Cruz, Laguna, admitting to probate the last will and
testament 3 with codicil 4 of the late Brigido Alvarado.
On 5 November 1977, the 79-year old Brigido Alvarado executed a notarial will entitled "Huling
Habilin" wherein he disinherited an illegitimate son (petitioner) and expressly revoked a previously
executed holographic will at the time awaiting probate before Branch 4 of the Regional Trial Court of
sta. Cruz, Laguna.
As testified to by the three instrumental witnesses, the notary public and by private respondent who
were present at the execution, the testator did not read the final draft of the will himself. Instead,
private respondent, as the lawyer who drafted the eight-paged document, read the same aloud in the
presence of the testator, the three instrumental witnesses and the notary public. The latter four
followed the reading with their own respective copies previously furnished them.
Meanwhile, Brigido's holographic will was subsequently admitted to probate on 9 December 1977.
On the 29th day of the same month, a codicil entitled "Kasulatan ng Pagbabago sa Ilang
Pagpapasiya na Nasasaad sa Huling Habilin na may Petsa Nobiembre 5, 1977 ni Brigido Alvarado"
was executed changing some dispositions in the notarial will to generate cash for the testator's eye

operation. Brigido was then suffering from glaucoma. But the disinheritance and revocatory clauses
were unchanged. As in the case of the notarial will, the testator did not personally read the final draft
of the codicil. Instead, it was private respondent who read it aloud in his presence and in the
presence of the three instrumental witnesses (same as those of the notarial will) and the notary
public who followed the reading using their own copies.
A petition for the probate of the notarial will and codicil was filed upon the testator's death on 3
January 1979 by private respondent as executor with the Court of First Instance, now Regional Trial
Court, of Siniloan, Laguna. 5Petitioner, in turn, filed an Opposition on the following grounds: that the will
sought to be probated was not executed and attested as required by law; that the testator was insane or
otherwise mentally incapacitated to make a will at the time of its execution due to senility and old age; that
the will was executed under duress, or influence of fear and threats; that it was procured by undue and
improper pressure and influence on the part of the beneficiary who stands to get the lion's share of the
testator's estate; and lastly, that the signature of the testator was procured by fraud or trick.
When the oppositor (petitioner) failed to substantiate the grounds relied upon in the Opposition, a
Probate Order was issued on 27 June 1983 from which an appeal was made to respondent court.
The main thrust of the appeal was that the deceased was blind within the meaning of the law at the
time his "Huling Habilin" and the codicil attached thereto was executed; that since the reading
required by Art. 808 of the Civil Code was admittedly not complied with, probate of the deceased's
last will and codicil should have been denied.
On 11 April 1986, the Court of Appeals rendered the decision under review with the following
findings: that Brigido Alvarado was not blind at the time his last will and codicil were executed; that
assuming his blindness, the reading requirement of Art. 808 was substantially complied with when
both documents were read aloud to the testator with each of the three instrumental witnesses and
the notary public following the reading with their respective copies of the instruments. The appellate
court then concluded that although Art. 808 was not followed to the letter, there was substantial
compliance since its purpose of making known to the testator the contents of the drafted will was
served.
The issues now before us can be stated thus: Was Brigido Alvarado blind for purpose of Art, 808 at
the time his "Huling Habilin" and its codicil were executed? If so, was the double-reading
requirement of said article complied with?
Regarding the first issue, there is no dispute on the following facts: Brigido Alvarado was not totally
blind at the time the will and codicil were executed. However, his vision on both eyes was only of
"counting fingers at three (3) feet" by reason of the glaucoma which he had been suffering from for
several years and even prior to his first consultation with an eye specialist on
14 December 1977.
The point of dispute is whether the foregoing circumstances would qualify Brigido as a "blind"
testator under Art. 808 which reads:
Art. 808. If the testator is blind, the will shall be read to him twice; once, by one of the
subscribing witnesses, and again, by the notary public before whom the will is
acknowledged.
Petitioner contends that although his father was not totally blind when the will and codicil were
executed, he can be so considered within the scope of the term as it is used in Art. 808. To support
his stand, petitioner presented before the trial court a medical certificate issued by Dr. Salvador R.
Salceda, Director of the Institute of Opthalmology (Philippine Eye Research Institute), 6 the contents

of which were interpreted in layman's terms by Dr. Ruperto Roasa, whose expertise was admitted by
private respondent. 7 Dr. Roasa explained that although the testator could visualize fingers at three (3)
feet, he could no longer read either printed or handwritten matters as of 14 December 1977, the day of his
first consultation. 8

On the other hand, the Court of Appeals, contrary to the medical testimony, held that the testator
could still read on the day the will and the codicil were executed but chose not to do so because of
"poor eyesight." 9 Since the testator was still capable of reading at that time, the court a quo concluded
that Art. 808 need not be complied with.
We agree with petitioner in this respect.
Regardless of respondent's staunch contention that the testator was still capable of reading at the
time his will and codicil were prepared, the fact remains and this was testified to by his witnesses,
that Brigido did not do so because of his "poor," 10 "defective," 11 or "blurred" 12 vision making it
necessary for private respondent to do the actual reading for him.
The following pronouncement in Garcia vs. Vasquez 13 provides an insight into the scope of the term
"blindness" as used in Art. 808, to wit:
The rationale behind the requirement of reading the will to the testator if he is blind or
incapable of reading the will himself (as when he is illiterate), is to make the
provisions thereof known to him, so that he may be able to object if they are not in
accordance with his wishes . . .
Clear from the foregoing is that Art. 808 applies not only to blind testators but also to those who, for
one reason or another, are "incapable of reading the(ir) will(s)." Since Brigido Alvarado was
incapable of reading the final drafts of his will and codicil on the separate occasions of their
execution due to his "poor," "defective," or "blurred" vision, there can be no other course for us but to
conclude that Brigido Alvarado comes within the scope of the term "blind" as it is used in Art. 808.
Unless the contents were read to him, he had no way of ascertaining whether or not the lawyer who
drafted the will and codicil did so confortably with his instructions. Hence, to consider his will as
validly executed and entitled to probate, it is essential that we ascertain whether Art. 808 had been
complied with.
Article 808 requires that in case of testators like Brigido Alvarado, the will shall be read twice; once,
by one of the instrumental witnesses and, again, by the notary public before whom the will was
acknowledged. The purpose is to make known to the incapacitated testator the contents of the
document before signing and to give him an opportunity to object if anything is contrary to his
instructions.
That Art. 808 was not followed strictly is beyond cavil. Instead of the notary public and an
instrumental witness, it was the lawyer (private respondent) who drafted the eight-paged will and the
five-paged codicil who read the same aloud to the testator, and read them only once, not twice as
Art. 808 requires.
Private respondent however insists that there was substantial compliance and that the single reading
suffices for purposes of the law. On the other hand, petitioner maintains that the only valid
compliance or compliance to the letter and since it is admitted that neither the notary public nor an
instrumental witness read the contents of the will and codicil to Brigido, probate of the latter's will and
codicil should have been disallowed.

We sustain private respondent's stand and necessarily, the petition must be denied.
This Court has held in a number of occasions that substantial compliance is acceptable where the
purpose of the law has been satisfied, the reason being that the solemnities surrounding the
execution of wills are intended to protect the testator from all kinds of fraud and trickery but are
never intended to be so rigid and inflexible as to destroy the testamentary privilege. 14
In the case at bar, private respondent read the testator's will and codicil aloud in the presence of the
testator, his three instrumental witnesses, and the notary public. Prior and subsequent thereto, the
testator affirmed, upon being asked, that the contents read corresponded with his instructions. Only
then did the signing and acknowledgement take place. There is no evidence, and petitioner does not
so allege, that the contents of the will and codicil were not sufficiently made known and
communicated to the testator. On the contrary, with respect to the "Huling Habilin," the day of the
execution was not the first time that Brigido had affirmed the truth and authenticity of the contents of
the draft. The uncontradicted testimony of Atty. Rino is that Brigido Alvarado already acknowledged
that the will was drafted in accordance with his expressed wishes even prior to 5 November 1977
when Atty. Rino went to the testator's residence precisely for the purpose of securing his conformity
to the draft.15
Moreover, it was not only Atty. Rino who read the documents on
5 November and 29 December 1977. The notary public and the three instrumental witnesses
likewise read the will and codicil, albeit silently. Afterwards, Atty. Nonia de la Pena (the notary public)
and Dr. Crescente O. Evidente (one of the three instrumental witnesses and the testator's physician)
asked the testator whether the contents of the document were of his own free will. Brigido answered
in the affirmative. 16 With four persons following the reading word for word with their own copies, it can be
safely concluded that the testator was reasonably assured that what was read to him (those which he
affirmed were in accordance with his instructions), were the terms actually appearing on the typewritten
documents. This is especially true when we consider the fact that the three instrumental witnesses were
persons known to the testator, one being his physician (Dr. Evidente) and another (Potenciano C.
Ranieses) being known to him since childhood.
The spirit behind the law was served though the letter was not. Although there should be strict
compliance with the substantial requirements of the law in order to insure the authenticity of the will,
the formal imperfections should be brushed aside when they do not affect its purpose and which,
when taken into account, may only defeat the testator's will. 17
As a final word to convince petitioner of the propriety of the trial court's Probate Order and its
affirmance by the Court of Appeals, we quote the following pronouncement in Abangan
v. Abangan, 18 to wit:
The object of the solemnities surrounding the execution of wills is to close the door
against bad faith and fraud, to avoid the substitution of wills and testaments and to
guaranty their truth and authenticity. Therefore the laws on the subject should be
interpreted in such a way as to attain these primordial ends. But, on the other hand,
also one must not lose sight of the fact that it is not the object of the law to restrain
and curtail the exercise of the right to make a will. So when an interpretation already
given assures such ends, any other interpretation whatsoever, that adds nothing but
demands more requisites entirely unnecessary, useless and frustrative of the
testator's will, must be disregarded (emphasis supplied).
Brigido Alvarado had expressed his last wishes in clear and unmistakable terms in his "Huling
Habilin" and the codicil attached thereto. We are unwilling to cast these aside fro the mere reason

that a legal requirement intended for his protection was not followed strictly when such compliance
had been rendered unnecessary by the fact that the purpose of the law, i.e., to make known to the
incapacitated testator the contents of the draft of his will, had already been accomplished. To
reiterate, substantial compliance suffices where the purpose has been served.
WHEREFORE, the petition is DENIED and the assailed Decision of respondent Court of Appeals
dated 11 April 1986 is AFFIRMED. Considering the length of time that this case has remained
pending, this decision is immediately executory. Costs against petitioner.
SO ORDERED.
Cruz, Grio-Aquino, Davide, Jr. and Quiason, JJ., concur.

Garcia v. Vasquez Digest

Garcia v. Vasquez
G.R. No. L-26808 March 28, 1969
Fernando, J (Ponente)
Facts:
1. Gliceria del Rosario executed 2 wills, one in June 1956, written in Spanish, a language she
knew an spoke. The other will was executed in December 1960 consisting of only one page,
and written in Tagalog. The witnesses to the 1960 will declared that the will was first read
'silently' by the testatrix before signing it. The probate court admitted the will.
2. The oppositors alleged that the as of December 1960, the eyesight of the deceased was so
poor and defective that she could not have read the provisions contrary to the testimony of
the witnesses.
Issue: Whether or not the will is valid
RULING: The will is not valid. If the testator is blind, Art. 808 of the New Civil Code
(NCC) should apply.If the testator is blind or incapable of reading, he must be apprised of the
contents of the will for him to be able to have the opportunityto object if the provisions
therein are not in accordance with his wishes.
The testimony of her opthalmologist established that notwithstanding an operation to remove
her cataract and being fitted with the lenses, this did not improve her vision. Her vision
remained mainly for viewing distant objects and not for reading. There was no evidence that
her vision improved at the time of the execution of the 2nd will. Hence, she was incapable of
reading her own will. The admission of the will to probate is therefor erroneous.
SUPREME COURT
Manila

EN BANC
G.R. No. L-3362

March 1, 1951

TESTATE estate of Carlos Gil, deceased. ISABEL HERREROS VDA. DE GIL, administratrixappellee,
vs.
PILAR GIL VDA. DE MURCIANO, oppositor-appellant.
Eligio C. Lagman for appellant.
Reyes, Albert and Agcaoili for appellee.
JUGO, J.:
The Court of First Instance of Manila admitted to probate the alleged will and testament of the
deceased Carlos Gil. The oppositor Pilar Gil Vda. de Murciano appealed to this Court, raising only
question of law. Her counsel assigns the two following alleged errors:
Primer Error. El Juzgado inferior erro al dejar de declarar que el alegado testamento de
Carlos Gil no ha sido otogar de acuerdo con la ley.
Segundo Error. Erro finalmente a legalizar el referido testamento.
The alleged will read as follows:
Primera Pagina (1)
EN EL NOMBRE DE DIOS, AMEN
Yo, Carlos Gil, de 66 aos de edad, residente de Porac, Pampanga, I. F., hallandome sano y
en pleno goce de mis facultades intelectuales, libre y expontaneamente, sin violencia,
coaccion, dolo o influencia ilegal de persona extraa, otorgo y ordeno este mi testamento y
ultima voluntad en castellano, idioma que poseo y entiendo, de la manera siguiente:
1. Declaro que durante mi matrimonio con mi esposa la hoy Isabel Herreros no tuvimos
hijos;
2. Declaro que tengo propiedades situadas en Manila y en la Provincia de Pampanga;
3. Doy y adjudico a mi querida esposa Isabel Herretos todos mis bienes ya que muebles e
inmuebles situados en Manila y en Pampanga, bajo la condicion de que cuando esta muera
y si hayan bienes remanentes heredadas por ella de mi, que dichos bienes remanentes se
adjudicaran a Don Carlos Worrel.
4. Nombro como albacea de mis bienes despues de mi fallecimiento al Dr. Galicano Coronel
a quien tengo absoluta confianza, con relevacion de fianza;
En testimonio de todo lo cual, firmo este mi testamento y en el margen izquierdo de cada
una de sus dos paginas, utiles con la clausula de atestiguamiento en presencia de los
testigos, quienes a su vez firmaron cada una de dichas paginas y la clausula de

atestiguamiento en mi presencia cada uno de ellos con la de los demas, hoy en Porac,
Pampanga, I. F., el dia 27 de Mayo de mil novecientos treinta y nueve.

CARLOS GIL

Testificacion:

Segunda Pagina (2)

Nosotros los que suscribimos, todos mayores de edad, certificamos: que el testamento que
precede este escrito en la lengua castellana que conoce la testadora, compuesto de dos
paginas utiles con la clausula de atestiguamiento paginadas correlativamente en letras y
numeros en la parte superior de la casilla, asi como todas las hojas del mismo, en nuestra
presencia y que cada uno de nosotros hemos atestiguado y firmado dicho documento y
todas las hojas del mismo en presencia del testador y en la de cada uno de nosotros.

(Fdo.) ALFREDO T. RIVERA

(Fdo.) RAMON MENDIOLA
(Fdo.) MARIANO OMAA

Regarding the correctness and accuracy of the above-copied alleged will, the court below said:
. . . The only copy available is a printed form contained in the record appeal in case G.R. No.
L-254, entitled "Testate Estate of Carlos Gil; Isabel Herreros Vda. de Gil, petitioner and
appellant vs. Roberto Toledo y Gil, oppositor and appellee." Both parties are agreed that this
is a true and correct copy of the will. (P. 10, Record on Appeal).
The appeal being only on questions of law the above finding of the court below cannot be disputed.
The conclusions of law reached by said court are based on it. Moreover, the finding is correctly
based on the evidence of record. The parties agreed that said copy is true and correct. If it were
otherwise, they would not have so agreed, considering that the defect is of an essential character
and is fatal to the validity of the attestation clause.
It will be noted that the attestation clause above quoted does not state that the alleged testor signed
the will. It declares only that it was signed by the witnesses. This is a fatal defect, for the precise
purpose of the attestation clause is to certify that the testator signed the will, this being the most
essential element of the clause. Without it there is no attestation at all. It is said that the court may
correct a mere clerical error. This is too much of a clerical error for it effects the very essence of the
clause. Alleged errors may be overlooked or correct only in matters of form which do not affect the
substance of the statement.

It is claimed that the correction may be made by inference. If we cure a deficiency by means of
inferences, when are we going to stop making inferences to supply fatal deficiencies in wills? Where
are we to draw the line? Following that procedure we would be making interpolations by inferences,
implication, and even by internalcircumtantial evidence. This would be done in the face of the clear,
uniquivocal, language of the statute as to how the attestation clause should be made. It is to be
supposed that the drafter of the alleged will read the clear words of the statute when he prepared it.
For the court to supply alleged deficiencies would be against the evident policy of the law. Section
618 of Act No. 190, before it was amended, contained the following provision:
. . . But the absence of such form of attestation shall not render the will invalid if it proven that
the will was in fact signed and attested as in this section provided.
However, Act No. 2645 of the Philippine Legislature, passed on July 1, 1916, besides increasing the
contents of the attestation clause, entirely suppressed the above-quoted provision. This would show
that the purpose of the amending act was to surround the execution of a will with greater guarantees
and solemnities. Could we, in view of this, hold that the court can cure alleged deficiencies by
inferences, implications, and internal circumstantial evidence? Even in ordinary cases the law
requires certain requisities for the conclusiveness of circumstantial evidence.
It is contended that the deficiency in the attestation clause is cured by the last paragraph of the body
of the alleged will, which we have quoted above. At first glance, it is queer that the alleged testator
should have made an attestation clause, which is the function of the witness. But the important point
is that he attests or certifies his own signature, or, to be accurate, his signature certifies itself. It is
evident that one cannot certify his own signature, for it does not increase the evidence of its
authenticity. It would be like lifting one's self by his own bootstraps. Consequently, the last paragraph
of the will cannot cure in any way the fatal defect of the attestation clause of the witnesses. Adding
zero to an insufficient amount does not make it sufficient.
It is said that the rules of statutory construction are applicable to documents and wills. This is true,
but said rules apply to the body of the will, containing the testamentary provisions, but not to the
attestation clause, which must be so clear that it should not require any construction.
The parties have cited pro and con several decisions of the Supreme Court, some of which are said
to be rather strict and others liberal, in the interpretation of section 618 of Act No. 190, as amended
by Act No. 2645.
In the case of Gumban vs. Gorecho (50 Phil., 30, 31), the court had the following to say:
1. WILLS; ALLOWANCE OR DISALLOWANCE; SECTIONS 618 AND 634 OF THE CODE
OF CIVIL PROCEDURE CONSTRUED. The right to dispose of the property by will is
governed entirely by statute. The law is here found in section 618 of the Code of Civil
Procedure, as amended. The law not alone carefully makes use of the imperative, but
cautiously goes further and makes use of the negative, to enforce legislative intention.
2. ID.; ID.; ATTESTATION. The Philippine authorities relating to the attestation clause to
wills reviewed. The cases of Sao vs. Quintana ([1925], 48 Phil., 506), and Nayve vs. Mojal
and Aguilar ([1924], 47 Phil., 152), particularly compared. The decision in In re Will of
Quintana, supra, adopted and reaffirmed. The decision in Nayve vs. Mojal and Aguilar,
supra, modified.
3. ID.; ID.; ID.; ID. The portion of section 618 of the Code of Civil Procedure, as amended,
which provides that "The attestation clause shall state the number of sheets or pages used,

upon which the will is written, and the fact that the testator signed the will and every page
thereof, or caused some other person to write his name, under his express direction, in the
presence of three witnesses, and the latter witnessed and signed the will and all pages
thereof in the presence of the testator and of each other" applied and enforced.
4. ID.; ID.; ID.; ID. An attestation clause which does not recite that the witnesses signed
the will and each and every page thereof on the left margin in the presence of the testator is
defective, and such a defect annuls the will. (Sano vs. Quintana, supra.)
In the subsequent case of Quinto vs. Morata (54 Phil., 481, 482), Judge Manuel V. Moran, now Chief
Justice of the Supreme Court, in his decision made the following pronouncement:
. . . En la clausula de atestiguamiento del testamento en cuestion, se hace constar que los
testadores firmaron el testamento en presencia de los tres testigos instrumentales y que
estos firmaron el testamento los unos en presencia de los otros, pero no se hace constar
que dichos testigos firmaron el testamento enpresencia de los testadores, ni que estos y
aquellos firmaron todas y cada una de las paginas del testamento los primeros en presencia
de los segundos y vice-versa.
En su virtud, se deniega la solicitud en la que se pide la legalizacion del alegado testamento
Exhibit A de Gregorio Pueblo y Carmen Quinto, y se declara que Gregorio Pueblo murio
intestado.
The Supreme Court fully affirmed the decision, laying down the following doctrine:
1. WILLS; ATTESTATION CLAUSE; EVIDENCE TO SUPPLY DEFECTS OF. The
attestation clause must be made in strict conformity with the requirements of section 618 of
Act No. 190, as amended. Where said clause fails to show on its face a full compliance with
those requirements, the defect constitutes sufficient ground for the disallowance of the will.
(Sano vs. Quintana, 48 Phil., 506; Gumban vs. Gorecho, 50 Phil., 30). Evidence aliunde
should not be admitted to establish facts not appearing on the attestation clause, and where
said evidence has been admitted it should not be given the effect intended. (Uy Coque vs.
Navas L. Sioca, 43 Phil., 405, 409.).
2. ID.; ID.; INTERPRETATION OF SECTION 618 OF ACT NO. 190, AS AMENDED.
Section 618 of Act No. 190, as amended, should be given a strict interpretation in order to
give effect to the intention of the Legislature. Statutes prescribing formalities to be observed
in the execution of wills are very strictly construed. Courts cannot supply the defensive
execution of will. (40 Cyc., p. 1079; Uy Coque vs. Navas L. Sioca, supra.)
It is true that in subsequent decisions, the court has somewhat relaxed the doctrine of the Gumban
vs. Gorchocase, supra, but not to the extent of validating an attestation clause similar to that
involved herein.
In the case of Aldaba vs. Roque (43 Phil., 378), the testatrix signed the attestation clause which was
complete, and it was also signed by the two attesting witnesses. For this reason, the court said:
In reality, it appears that it is the testatrix who makes the declaration about the points
contained in the above described paragraph; however, as the witnesses, together with the
testatrix, have signed the said declaration, we are of the opinion and so hold that the words

above quoted of the testament constitute a sufficient compliance with the requirements of
section 1 of Act No. 2645 which provides that: . . . (p. 381,supra.)
The attestation clause involved herein is very different.
In the case of Dischoso de Ticson vs. De Gorotiza (57 Phil., 437), it was held that:
An attestation clause to a will, copied from a form book and reading: "We, the undersigned
attesting witnesses, whose residences are stated opposite our respective names, do hereby
certify that the testatrix, whose name is signed hereinabove, has publish unto us the
foregoing will consisting of two pages as her Last Will and Testament, and has signed the
same in our presence, and in witness whereof we have each signed the same and each
page thereof in the presence of said testatrix and in the presence of each other," held not to
be fatally defective and to conform to the law.
This very different from the attestation clause in the case at bar.
In the case of Grey vs. Fabie * (40 Off. Gaz., 1st Supplement, 196, No. 3, May 23, 1939), the will
was objected to on the ground that, although the attestation clause stated that "each of the pages of
which the said will is composed" was signed by the testatrix at the left margin and at the foot of the
fifth page, it did not state that the signature was made in the presence of the witnesses. It was held,
however, that said deficiency was cured by the phrase "as well as by each of us in the presence of
the testatrix." The words "as well as" indicate that the testatrix signed also in the presence of the
witnesses, for the phrase "as well as" in this case is equivalent to "also." The language is clear and,
unlike the attestation clause in the present case, does not necessitate any correction. In the body of
the will the testatrix stated that she signed in the presence of each and all of the three witnesses.
This was considered as a corroboration, but it was unnecessary.
In the case of Leynez vs. Leynez (40 Off. Gaz., 3rd Supplement, 51, 52, No. 7, October 18, 1939; 68
Phil., 745), the attestation clause reads as follows:
Suscrito y declarado por el testador Valerio Leynez, como su ultima voluntad y testamento
en presencia de todos y cada uno de nosotros, y a ruego de dicho testador, firmamos el
presente cada uno en presencia de los otros, o de los demas y de la del mismo testsador,
Valerio Leynez. El testamento consta de dos (2) paginas solamente.
The objection was that the attestation clause did not state that the testator and the witnesses signed
each and every page of the will. This fact , however, appears in the will itself. It is clear, therefore,
that in case of the will complied with all the requisites for its due execution. In the instant case,
essential words were omitted.
In the case of Alcala vs. De Villa 1 (40 Off. Gaz., 14th Supplement, 131, 134-135, No. 23, April 18,
1939), the attestation clause reads as follows:
Hacemos constar que en la fecha y pueblo arriba mencionadios otorgo el Sr. Emiliano Alcala
su ultima voluntad o testamentao compuesto de cuatro paginas incluida ya esta clasula de
atestiguamiento. Que estabamos presentes en el momento de leer y ratificar el que el
testamento arriba mencionado es su ultima voluntad o testamento compuesto de cuatro
paginasen papel de maquinilla. Que igualmente estabamos presentes cuando el firmo este
documento al pie del mismo y en el margen izquierdo de cada pagina del testador tambien
en presencia suya y de cada uno de nosotros en cada pagina y en el margen izquierdo de

esta escritura o testamento. En su testimonio firmamos abajo en prsencia del testador y de

cada uno de nosotros.
The above attestation clause is substantially perfect. The only clerical error is that it says "testador"
instead of "testamento" in the phrase "cada pagina del testador." The word "tambien" renders
unnecessary the use of the verb "firmamos."
In the case of Mendoza vs. Pilapil 2 (40 Off. Gaz., 1855, No. 9, June 27, 1941), the attestation clause
did not state the number of pages of the will. However, it was held that this deficiency was cured by
the will itself, which stated that it consisted of three pages and in fact it had three pages.
In the case of Rallos vs. Rallos (44 Off. Gaz., 4938, 4940, No. 12, October 23, 1947), decided by the
Court of Appeals, the attestation clause (translated in Spanish) reads as follows:
Nosotros, los testigos, certificamos que este que hemos firmado es el testamento y ultima
voluntad, que se ha redactado en cuatro paginas, de Numeriano Rallos, quien despues de
leer y de leer y de leerle el mencionado testamento, y despues de que ella dio su
conformidad, firmo y marco con su dedo pulgar derecho en nuestra presencia y en
presencia de cada uno de nosotros, que asimismo cada uno de nosotros, los testigos,
firmamos enpresencia de la testadora y en presencia de cada uno de nosotros.
It will be noticed that the only thing omitted is the statement as to the signing of the testatrix and the
witnesses of each and every page of the will, but the omission is cured by the fact that their
signatures appear on every page. This attestation clause is different from that involved in the present
case.
There is no reason why wills should not be executed by complying substantially with the clear
requisites of the law, leaving it to the courts to supply essential elements. The right to dispose of
property by will is not natural but statutory, and statutory requirements should be satisfied.
The right to make a testamentary disposition of one's property is purely of statutory creation,
and is available only upon the compliance with the requirements of the statute. The
formalities which the Legislature has prescribed for the execution of a will are essential to its
validity, and cannot be disregarded. The mode so prescribed is the measure for the exercise
of the right, and the heir can be deprived of his inheritance only by a compliance with this
mode. For the purpose of determining whether a will has been properly executed, the
intention of the testator in executing it is entitled to no consideration. For that purpose only
intention of the Legislature, as expressed in the language of the statute, can be considered
by the court, and whether the will as presented, shows a compliance with the statute. Estate
of Walker, 110 Cal., 387, 42 Pac., 815, 30 L. R. A., 460, 52 Am. St. Rep. 104. In re Seaman's
Estate, 80 Pac., 700, 701.)
In interpreting the legislature's thought, courts have rigidly opposed any exception tending to
weaken the basic principle underlying the law, the chief purpose of which is to see that the
testator's wishes are observed. It is possible, in some or many cases, a decedent may have
thought he had made a will, but the statute says he had not. The question is not one of his
intention, but of what he actually did, or . . . failed to do. . . . It may happen . . . that . . .
wills . . . truly expressing the intertions of the testator are made without observations of the
required forms; and whenever that happens, the genuine intention is frustrated. . . . The
Legislature . . . has taught of it best and has therefore determined, to run the risk of
frustrating (that intention, . . . in preference to the risk of giving effect to or facilitating the
formation of spurious wills, by the absence of forms. . . . The evil probably to arise by giving

to wills made without any form, . . ." or, in derogation of testator's wishes, fraudulently
imposing spurious wills on his effect on his estate. Churchill's Estate, 260 Pac. 94, 101, 103
Atl. 533.
It has always been the policy of this court to sustain a will if it is legally possible to do so, but
we cannot break down the legislative barriers protecting a man's property after death, even if
a situation may be presented apparently meritorious. (In Re: Maginn, 30 A. L. R., pp. 419,
420.)
In view of the foregoing, the decision appealed from is reversed, denying the probate of the alleged
will and declaring intestate the estate of the deceased Carlos Gil. With costs against the appellee. It
is so ordered.
Moran, C.J., Pablo, Bengzon, Padilla and Reyes, JJ., concur.

Separate Opinions
TUAZON, J., dissenting:
The decision takes for granted that the will was written just as it was copied in the stipulation of facts
by the parties. But counsel for appellee makes the correctness of the copy an issue thereby raising
the question of not whether the burnt will possessed the statutory requirements but whether the copy
is erroneous. Since this is a chief feature on which the appellee's case is built; since, in fact, the
objection to form of the attestation clause, with which the decision wholly deals, would disappear if
the appellee's contention were well founded, it is proper that in this dissenting opinion we should
accord the matter at least a passing notice.
It may be stated as background that the original of the will was filed in the Court of First Instance of
Manila in 1943; that in 1945, before the will came up for probate, it was destroyed by fire or looters;
that in the probate proceeding after liberation, the parties submitted an agreed statement of facts in
which the will was reproduced ascopied in the record on appeal in another case docketed in this
court on appeal as G.R. No. L-254 and decided on April 30, 1948. It further appears from the record
of that case and from the decision of this court that the controversy there concerned the right of a
nephew of the testator to impugn the will, it being alleged that he was not a legal heir and had no
interest in the probate.
As transcribed in the majority decision, it will be seen that the attestation clause is truncated and
meaningless. The last of the compound sentence in incomplete, lacking an adjective phrase.
Counsel for appellee contends that the phrase "ha sido firmado por el testador" or equivalent
expression between the words "del mismo" and the words "en nuestra presencia" should be inserted
if the sentence is to be complete and have sense. The attestation clause with the inclusion of the
omitted phrase, which we italicize should read thus:
Nosotros, los que suscribimos, todos mayores de edad, certificamos que el testamento que
precede escrito en la lengua castellana que conoce la testador, compuesto de las paginadas
utiles con la clausula de atestiguamiento paginadas correlativamente en letras y numeros en
la parte superior de la casilla, asi como todos las hojas del mismo (Ha sido firmado por el
testador) en nuestra presencia y que cada de nosotros hemos atestiguado y firmado dicho

documento y todas las hojas del mismo presencia del testador y en la de cada uno de
nosotros.
It seems obvious that the missing phrase was inadvertently left out. The probabilities of error in the
copy are enhanced by the fact that the form of the will was not in controversy. The form of the will
being immaterial, it is easily conceivable that little or on care was employed in the copying thereof in
the pleading or record on appeal above mentioned. The absence of the signature of the testator on
the first page of the copy is an additional proof that little or on pain was taken to insure accuracy in
the transcription. The appearance of "la testadora" in the copy instead of "el testador" is another.
Quite aside from all this, the testator was presumed to know the law, as the decision says. Certainly,
Attorney Mariano Omaa, who drafted the whole instrument and signed it as an attesting witness,
knew the law and, by the context of the whole instrument, has shown familiarity with the rules of
grammar and ability to express his idea properly.
Read in the light of these circumstances without mentioning the evidence or record, not objected
to, that the testator signed the will in the presence of the attesting witnesses so important an
omission as to make the sentence senseless granting such omission existed in the original
document-could not have been intentional or due to ignorance. The most that can be said is that the
flaw was due to a clerical mistake, inadvertance, or oversight.
There is insinuation that the appellee in agreeing that the will read as it was "reproduced in the
record on Appeal" above mentioned is bound by the agreement. This is not an absolute rule. The
binding effect of a stipulation on the parties does not go to the extent of barring them or either of
them from impeaching it on the score of clerical error or clear mistake. That there was such mistake,
is indubitable. It is noteworthy that the opponent and appellant herself appears not to have noticed
any defect in the attestation clause as copied in the stipulation. It would seem that in the court below
she confined her attack on the will to the alleged failure of the testator to sign the first page. We say
this because it was only the alleged unsigning of the first page of the document which the trial court
in the appealed decision discussed and ruled upon. There is not the slightest reference in the
decision, direct or implied, to any flaw in the attestation clause which is by far more important than
the alleged absence of the testator's signature on the first page.
As stated the problem posed by the omission in question is governed, not by the law of wills which
requires certain formalities to be observed in the execution, but by the rules of construction
applicable to statues and documents in general. And this rule would obtain even if the omission had
occurred in the original document and not in the copy alone. In either case, the court may and
should correct the error by supplying the omitted word or words.
In Testamentaria del finado Emilio Alcala, a similar situation arose and the Court said:
Es evidente que leyendo la clausula de atestiguacion se nota a simple vista que en su
redaccion se ha incurrido en omisiones que la razon y el sentido comon pueden suplirlas sin
alterar ni tergiversar la intencion tanto del testador como la de los tres testigos que
intervinieron en el otorgamiento de la misma. Teniendo en cuenta la fraselogia de la
segunda parte de la clausula se observara que las omisiones, aunque son substanciales,
consisten en meros errores gramaticales que los tribunales, en el ejercicio de su discrecion
y en la aplicacion de las reglas de interpretacion de documentos, pueden subsanarlos para
dar efectividad a la intencion y hacer que el conjunto de los terminos de la clausula de
atestacion surtan sus efectos.

La interpritacion que se acaba de bar a la clausula de atestacion y la correccion de los

errores gramaticales de que misma adolece, incluyendo la insercion del verbo "firmamos"
que se omitio involuntariamente, esta de acuerdo con las reglas fundamentals de
interpretacion de documentos segun las cuales se debe hacer prevalecer siempre la
intencion del que haya redactado el instrumento (art. 288, Cod. de Proc. Civ.; Pecson contra,
45 Jur. Fil., 224; 28 R. C. L., sec. 187, pags. 225, 226.)
La solucion que se acaba de bar al asunto es la que se halla mas conforme con la justificia
en vista de que se ha presentado prueba alguna que insinue siquiera que en el
otorgamiento del testamento se ha cometido dolo o fraude con el animo de perjudiar a
cualquiera. (Testamentaria de Emiano Alcala, 40 G. O., 14. Suplemento, No. 23, pags. 131,
132.)
From 69 C. J., 82 83, we quote: "Words omitted from a will may be supplied by the court whenever
necessary to effectuate the testator's intention as expressed in the will; but not where the effect of
inserting the words in the will would alter or defeat such intention, or change the meaning of words
that are clear and unequivocal." On pages 50, 51, the same work says: "To aid the court in
ascertaining and giving effect to the testator's intention in the case of an ambiguous will, certain rules
have been established for guidance in the construction or interpretation to be placed upon such a
will, and in general a will should be construed according to these established rules of construction."
Speaking of construction of statutes which, as has been said, is applicable to construction of
documents, the same work, in Vol. 59, p. 992, says: "Where it appears from the context that certain
words have been inadvertently omitted from a statute, the court may supply such words as are
necessary to complete the sense, and to express the legislative intent.
Adding force to the above principle is the legal presumption that the will is in accordance with law. (2
Page on Wills, 840, 841; 57 Am. Jur., 720.)
Let us assume, for the purpose of this decision only, that the attestation clause was drawn as the
draftsman intended, that the mistake in language in said clause was not inadvertent, and consider
the case on the premise from which the court has approached it; is the decision well grounded, at
least in the light of this court's previous decisions?
At the outset, it should be pointed out that as early as 1922 a similar case, in which the validity of the
will was sustained, found its way into this court. (Aldaba vs. Roque, 43 Phil., 378). The case was
more than four-square behind the case at bar. There the departure from the statutory formality was
more radical, in that the testator took charge or writing the entire attestation clause in the body of the
will, the witnesses limiting their role to signing the document below the testator's signature. Here, at
most, the testator took away from the witness only a small part of their assigned task, leaving them
to perform the rest.
Referring to "the lack of attestation clause required by law," this court, in a unanimous decision in
banc, through Mr. Justice Villamor said (syllabus): "When the attestation clause is signed by the
witnesses to the instruments besides the testator, such attestation clause is valid and constitutes a
substantial compliance with the provisions of section 1 of Act No. 2645, even though the facts recited
in said attestation appear to have been make by the testator himself."
That was good doctrine when it was announced. We think it is good law still. That ruling should set
the present case at rest unless the court wants to discard it. On the possibility that this is the
intention, we will dwell on the subject further.

This Court noted in Dichoso de Ticson vs. De Gorostiza, (1922), 57 Phil., 437, "that there have been
noticeable in the Philippines two divergent tendencies in the law of wills the one being planted on
strict construction and the other on liberal construction. A late example of the former views may be
found in the decision in Rodriguez vs. Alcala (1930), 55 Phil., 150, sanctioning a literal enforcement
of the law. The basic case in the other direction,predicated on reason, is Abangan vs.
Abangan (1919), 40 Phil., 476, oft-cited approvingly in later decisions." In the Abangan case,
unanimous court, speaking through Mr. Justice Avancea, later Chief Justice, observed: "The object
of the solemnities surrounding the execution of wills is to close the door against bad faith and fraud,
to avoid substitution of wills and testaments and to guaranty their truth and authenticity. Therefore
the laws on this subject should be interpreted in such a way as to attain these primodial ends. But,
on the other hand, also one must not lose sight of the fact that it is not the object of the law to
restrain and curtail the exercise of the right to make a will. So when an interpretation already given
assures such ends, any other interpretation whatsoever, that adds nothing but demands more
requisites entirely unnecessary, useless and frustrative of the testator's last will, must be
disregarded."
Subsequent decisions which followed and adopted the Abangan principle were numerous: Avera vs.
Garcia(1921), 42 Phil., 145; Aldaba vs. Roque (1922), 43 Phil., 378; Unson vs. Abella (1922,) 43
Phil., 494; Pecson vs. Coronel (1923), 45 Phil., 216; Fernandez vs. Vergel de Dios (1924), 46 Phil.,
922; Nayve vs. Mojal (1924), 47 Phil., 152; De Gala vs. Gonzales (1929), 53 Phil., 104; Rey vs.
Cartegana (1931), 56 Phil., 282; Ticson vs. Gorostiza (1932), 57 Phil., 437; Testamentaria de M.
Ozoa (1933), 57 J. F., 1007; Sebastian vs. Paganiban(1934), 59 Phil., 653; Rodriguez vs.
Yap (1939)1, 40 Off. Gaz., 1st Suppl. No. 3, p. 194; Grey vs. Fabia (1939)2, 40 Off. Gaz., 1st Suppl.
No. 3, p. 196; Leynez vs. Leynez (1939)3, 40 Off. Gaz., 3rd Suppl. No. 7, p. 51; Martir vs.
Martir (1940)4, 40 Off. Gaz., 7th Suppl. No. 11, p. 215; Sabado vs. Fernandez (1941)5, 40 Off. Gaz.,
1844;Mendoza vs. Pilapil (1941)6 40 Off. Gaz., 1855; Alcala vs. De Villa (1941)7, 40 Off. Gaz., 14th
Suppl. No. 23, p. 131; and Lopez vs. Liboro (1948)8, 46 Off. Gaz., Suppl. No. 1, p. 211.
The majority decision says, and we quote: "If we cure a deficiency by means of inferences, when are
we going to stop making inferences to supply fatal deficiencies in wills? Where are we to draw the
line?" These same questions might well have been asked in the case above cited by the opponents
of the new trends. But the so-called liberal rule does not offer any puzzle or difficulty, nor does it
open the door to serious consequences. The decisions we have cited to tell us when and where to
stop; the dividing line is drawn with precision. They say "Halt" when and where evidence aliunde to
fill a void in any part of the document is attempted. They only permit a probe, an exploration within
the confines of the will, to ascertain its meaning and to determine the existence or absence of the
formalities of law. They do not allow the courts to go outside the will or to admit extrinsic evidence to
supply missing details that should appear in the will itself. This clear, sharp limitation eliminates
uncertainly and ought to banish any fear of dire results.
The case at hand comes within the bounds thus defined. If the witnesses here purposely omitted or
forgot that the testator signed the will in their presence, the testator said that he did and the
witnesses by their signatures in the will itself said it was so. No extraneous proof was necessary and
none was introduced or taken into consideration.
To regard the letter rather than the spirit of the will and of the law behind it was the thing that led to
unfortunate consequences. It was the realization of the injustice of the old way that impelled this
court, so we believe, to forsake the antiquated, outworn worship of form in preference to substance.
It has been said, and experience has known, that the mechanical system of construction has
operated more to defeat honest wills than prevent fraudulent ones. That, it must be conceded, is the
effect in this case of this court's rejection of the will under consideration. For the adverse party

concedes the genuineness of the document. At least, the genuineness is super obvious, and there is
not the slightest insinuation of undue pressure, mental incapacity of the testator of fraud.
It is said that for the testator to certify that he signed the will in the witnesses' presence "would be
like lifting one's self by his own bootstraps." The simile, we say with due respect, does not look to us
quite well placed. Under physical law a man cannot raise his body from the ground by his own bare
hands without the aid of some mechanical appliance, at least not for more than a flitting moment. But
there is no impossibility or impropriety in one attesting to his own act unless forbidden by rules of
positive law. The rationale of our dissent is that he is not. If we were to make a metaphorical
comparison, it would be more appropriate to say that a man can and generally does himself pull the
bootstraps to put the boots on.
Coming to execution of wills, we see no legitimate practical reason for objecting to the testator
instead of the witnesses certifying that he signed the will in the presence of the latter. The will is the
testator's and the intervention of attesting witnesses is designed merely to protect the testator's and
not anybody else's interest.
If the sole purpose of the statute is to make it certain that the testator has definite and complete
intention to pass his property, and to prevent, as far as possible, any chance of substituting one
instrument for another (1 Page on Wills, 481), What better guaranty of the genuineness of the will
can there be than a certification by the testator himself in the body of the will so long as the testator's
signature is duly authenticated? Witnesses may sabotage the will by muddling it or attestation
clause. For the testator, who is desirous of making a valid will, to do so would be a contradiction. If
the formalities are only a means to an end and not the end themselves, and that end is achieved by
another method slightly different from the prescribed manner, what has been done by the testator
and the witnesses in the execution of the instant will should satisfy both law and conscience. The
chief requirements of statutes are writing, signature by the testator, and attestation and signature of
three witnesses. Whether the courts profess to follow the harsher rule, whether to follow the milder
rule, they agree on one thing that as long as the testator performs each of those acts the courts
should require no more. (1 Page on Wills, 481, 484.)
Paras, Feria, Montemayor and Bautista Angelo, JJ., concur.
Today is Tuesday, July 12, 2016

Republic of the Philippines

SUPREME COURT
Manila
FIRST DIVISION

G.R. No. L-38338 January 28, 1985

IN THE MATTER OF THE INTESTATE ESTATE OF ANDRES G. DE JESUS AND BIBIANA ROXAS DE JESUS, SIM
ROXAS & PEDRO ROXAS DE JESUS, petitioners,
vs.
ANDRES R. DE JESUS, JR., respondent.
Raul S. Sison Law Office for petitioners.
Rafael Dinglasan, Jr. for heir M. Roxas.
Ledesma, Guytingco Velasco and Associates for Ledesa and A. R. de Jesus.

GUTIERREZ, JR., J.:

This is a petition for certiorari to set aside the order of respondent Hon. Jose C. Colayco, Presiding Judge Court of Fi
Manila, Branch XXI disallowing the probate of the holographic Will of the deceased Bibiana Roxas de Jesus.
The antecedent facts which led to the filing of this petition are undisputed.

After the death of spouses Andres G. de Jesus and Bibiana Roxas de Jesus, Special Proceeding No. 81503 entitled
the Intestate Estate of Andres G. de Jesus and Bibiana Roxas de Jesus" was filed by petitioner Simeon R. Roxas, the
deceased Bibiana Roxas de Jesus.

On March 26, 1973, petitioner Simeon R. Roxas was appointed administrator. After Letters of Administration had bee
petitioner, he delivered to the lower court a document purporting to be the holographic Will of the deceased Bibiana R
On May 26, 1973, respondent Judge Jose Colayco set the hearing of the probate of the holographic Win on July 21,

Petitioner Simeon R. Roxas testified that after his appointment as administrator, he found a notebook belonging to the
Bibiana R. de Jesus and that on pages 21, 22, 23 and 24 thereof, a letter-win addressed to her children and entirely w
signed in the handwriting of the deceased Bibiana R. de Jesus was found. The will is dated "FEB./61 " and states: "T
which I want to be respected although it is not written by a lawyer. ...

The testimony of Simeon R. Roxas was corroborated by the testimonies of Pedro Roxas de Jesus and Manuel Roxas
likewise testified that the letter dated "FEB./61 " is the holographic Will of their deceased mother, Bibiana R. de Jesus
recognized the handwriting of their mother and positively Identified her signature. They further testified that their dece
understood English, the language in which the holographic Will is written, and that the date "FEB./61 " was the date w
was executed by their mother.

Respondent Luz R. Henson, another compulsory heir filed an "opposition to probate" assailing the purported holograp
Bibiana R. de Jesus because a it was not executed in accordance with law, (b) it was executed through force, intimid
under duress, undue influence and improper pressure, and (c) the alleged testatrix acted by mistake and/or did not in
have intended the said Will to be her last Will and testament at the time of its execution.

On August 24, 1973, respondent Judge Jose C. Colayco issued an order allowing the probate of the holographic Will
to have been duly executed in accordance with law.

Respondent Luz Roxas de Jesus filed a motion for reconsideration alleging inter alia that the alleged holographic Wil

deceased Bibiana R. de Jesus was not dated as required by Article 810 of the Civil Code. She contends that the law
Will should contain the day, month and year of its execution and that this should be strictly complied with.

On December 10, 1973, respondent Judge Colayco reconsidered his earlier order and disallowed the probate of the h
on the ground that the word "dated" has generally been held to include the month, day, and year. The dispositive port
reads:

WHEREFORE, the document purporting to be the holographic Will of Bibiana Roxas de Jesus
disallowed for not having been executed as required by the law. The order of August 24, 1973
aside.

The only issue is whether or not the date "FEB./61 " appearing on the holographic Will of the deceased Bibiana Roxa
valid compliance with the Article 810 of the Civil Code which reads:

ART. 810. A person may execute a holographic will which must be entirely written, dated, and
hand of the testator himself. It is subject to no other form, and may be made in or out of the Ph
need not be witnessed.

The petitioners contend that while Article 685 of the Spanish Civil Code and Article 688 of the Old Civil Code require t
state in his holographic Win the "year, month, and day of its execution," the present Civil Code omitted the phrase A
simply requires that the holographic Will should be dated. The petitioners submit that the liberal construction of the ho
should prevail.

Respondent Luz Henson on the other hand submits that the purported holographic Will is void for non-compliance wi
the New Civil Code in that the date must contain the year, month, and day of its execution. The respondent contends
of the Civil Code was patterned after Section 1277 of the California Code and Section 1588 of the Louisiana Code wh
Courts had consistently ruled that the required date includes the year, month, and day, and that if any of these is wan
holographic Will is invalid. The respondent further contends that the petitioner cannot plead liberal construction of Arti
Civil Code because statutes prescribing the formalities to be observed in the execution of holographic Wills are strictl
We agree with the petitioner.

This will not be the first time that this Court departs from a strict and literal application of the statutory requirements re
execution of Wills. We should not overlook the liberal trend of the Civil Code in the manner of execution of Wills, the p
which, in case of doubt is to prevent intestacy

The underlying and fundamental objectives permeating the provisions of the law on wigs in th
consists in the liberalization of the manner of their execution with the end in view of giving the
freedom in expressing his last wishes, but with sufficien safeguards and restrictions to preven
commission of fraud and the exercise of undue and improper pressure and influence upon the

This objective is in accord with the modem tendency with respect to the formalities in the exec
(Report of the Code Commission, p. 103)

In Justice Capistrano's concurring opinion in Heirs of Raymundo Castro v. Bustos (27 SCRA 327) he emphasized tha
xxx xxx xxx

... The law has a tender regard for the will of the testator expressed in his last will and testame
ground that any disposition made by the testator is better than that which the law can make. F

intestate succession is nothing more than a disposition based upon the presumed will of the d

Thus, the prevailing policy is to require satisfaction of the legal requirements in order to guard against fraud and bad
undue or unnecessary curtailment of testamentary privilege Icasiano v. Icasiano, 11 SCRA 422). If a Will has been ex
substantial compliance with the formalities of the law, and the possibility of bad faith and fraud in the exercise thereof
said Win should be admitted to probate (Rey v. Cartagena 56 Phil. 282). Thus,
xxx xxx xxx

... More than anything else, the facts and circumstances of record are to be considered in the
any given rule. If the surrounding circumstances point to a regular execution of the wilt and the
appears to have been executed substantially in accordance with the requirements of the law,
should, in the absence of any suggestion of bad faith, forgery or fraud, lean towards its admis
although the document may suffer from some imperfection of language, or other non-essentia
(Leynez v. Leynez 68 Phil. 745).

If the testator, in executing his Will, attempts to comply with all the requisites, although compliance is not literal, it is s
objective or purpose sought to be accomplished by such requisite is actually attained by the form followed by the test

The purpose of the solemnities surrounding the execution of Wills has been expounded by this Court in Abangan v. A
476, where we ruled that:

The object of the solemnities surrounding the execution of wills is to close the door against ba
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 execut
day, or of a testator becoming insane on the day on which a Will was executed (Velasco v. Lopez, 1 Phil. 720). There
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
substitution of Wins and Testaments. There is no question that the holographic Will of the deceased Bibiana Roxas d
entirely written, dated, and signed by the testatrix herself and in a language known to her. There is also no question a
genuineness and due execution. All the children of the testatrix agree on the genuineness of the holographic Will of th
that she had the testamentary capacity at the time of the execution of said Will. The objection interposed by the oppo
respondent Luz Henson is that the holographic Will is fatally defective because the date "FEB./61 " appearing on the
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,
case at bar, there is no appearance of fraud, bad faith, undue influence and pressure and the authenticity of the Will i
and the only issue is whether or not the date "FEB./61" appearing on the holographic Will is a valid compliance with A
Civil Code, probate of the holographic Will should be allowed under the principle of substantial compliance.

WHEREFORE, the instant petition is GRANTED. The order appealed from is REVERSED and SET ASIDE and the o
the probate of the holographic Will of the deceased Bibiana Roxas de Jesus is reinstated.
SO ORDERED.
Teehankee (Chairman), Melencio-Herrera, Plana, Relova and De la Fuente, JJ., concur.

Republic of the Philippines

SUPREME COURT
Manila
SECOND DIVISION
G.R. Nos. 83843-44

April 5, 1990

IN THE MATTER OF THE PETITION TO APPROVE THE WILL OF MELECIO LABRADOR.

SAGRADO LABRADOR (Deceased), substituted by ROSITA LABRADOR, ENRICA
LABRADOR, and CRISTOBAL LABRADOR, petitioners-appellants,
vs.
COURT OF APPEALS, GAUDENCIO LABRADOR, and JESUS LABRADOR, respondentsappellees.
1

Benjamin C. Santos Law Offices for petitioners.

Rodrigo V. Fontelera for private respondents.

PARAS, J.:
The sole issue in this case is whether or not the alleged holographic will of one Melecio Labrador
is dated, as provided for in Article 810 of the New Civil Code.
2

The antecedent and relevant facts are as follows: On June 10, 1972, Melecio Labrador died in the
Municipality of Iba, province of Zambales, where he was residing, leaving behind a parcel of land
designated as Lot No. 1916 under Original Certificate of Title No. P-1652, and the following heirs,
namely: Sagrado, Enrica, Cristobal, Jesus, Gaudencio, Josefina, Juliana, Hilaria and Jovita, all
surnamed Labrador, and a holographic will.
On July 28, 1975, Sagrado Labrador (now deceased but substituted by his heirs), Enrica Labrador
and Cristobal Labrador, filed in the court a quo a petition for the probate docketed as Special
Proceeding No. 922-I of the alleged holographic will of the late Melecio Labrador.
Subsequently, on September 30, 1975, Jesus Labrador (now deceased but substituted by his heirs),
and Gaudencio Labrador filed an opposition to the petition on the ground that the will has been
extinguished or revoked by implication of law, alleging therein that on September 30, 1971, that is,
before Melecio's death, for the consideration of Six Thousand (P6,000) Pesos, testator Melecio
executed a Deed of Absolute Sale, selling, transferring and conveying in favor of oppositors Jesus
and Gaudencio Lot No. 1916 and that as a matter of fact, O.C.T. No. P-1652 had been cancelled by
T.C.T. No. T-21178. Earlier however, in 1973, Jesus Labrador sold said parcel of land to Navat for
only Five Thousand (P5,000) Pesos. (Rollo, p. 37)
Sagrado thereupon filed, on November 28, 1975, against his brothers, Gaudencio and Jesus, for the
annulment of said purported Deed of Absolute Sale over a parcel of land which Sagrado allegedly
had already acquired by devise from their father Melecio Labrador under a holographic will executed
on March 17, 1968, the complaint for annulment docketed as Civil Case No. 934-I, being premised
on the fact that the aforesaid Deed of Absolute Sale is fictitious.

After both parties had rested and submitted their respective evidence, the trial court rendered a joint
decision dated February 28, 1985, allowing the probate of the holographic will and declaring null and
void the Deed of Absolute sale. The court a quo had also directed the respondents (the defendants
in Civil Case No. 934-I) to reimburse to the petitioners the sum of P5,000.00 representing the
redemption price for the property paid by the plaintiff-petitioner Sagrado with legal interest thereon
from December 20, 1976, when it was paid to vendee a retro.
Respondents appealed the joint decision to the Court of Appeals, which on March 10, 1988 modified
said joint decision of the court a quo by denying the allowance of the probate of the will for being
undated and reversing the order of reimbursement. Petitioners' Motion for Reconsideration of the
aforesaid decision was denied by the Court of Appeals, in the resolution of June 13, 1988. Hence,
this petition.
Petitioners now assign the following errors committed by respondent court, to wit:
I
THE COURT OF APPEALS ERRED IN NOT ALLOWING AND APPROVING THE PROBATE
OF THE HOLOGRAPHIC WILL OF THE TESTATOR MELECIO LABRADOR; and
II
THE COURT OF APPEALS ERRED IN FINDING THAT THE ORDER OF THE LOWER
COURT DIRECTING THE REIMBURSEMENT OF THE FIVE THOUSAND PESOS
REPRESENTING THE REDEMPTION PRICE WAS ERRONEOUS.
The alleged undated holographic will written in Ilocano translated into English, is quoted as follows:
ENGLISH INTERPRETATION OF THE WILL OF THE
LATE MELECIO LABRADOR WRITTEN IN ILOCANO
BY ATTY. FIDENCIO L. FERNANDEZ
I First Page
This is also where it appears in writing of the place which is assigned and shared or the
partition in favor of SAGRADO LABRADOR which is the fishpond located and known place
as Tagale.
And this place that is given as the share to him, there is a measurement of more or less one
hectare, and the boundary at the South is the property and assignment share of ENRICA
LABRADOR, also their sister, and the boundary in the West is the sea, known as the SEA as
it is, and the boundary on the NORTH is assignment belonging to CRISTOBAL LABRADOR,
who likewise is also their brother. That because it is now the time for me being now ninety
three (93) years, then I feel it is the right time for me to partition the fishponds which were
and had been bought or acquired by us, meaning with their two mothers, hence there shall
be no differences among themselves, those among brothers and sisters, for it is I myself
their father who am making the apportionment and delivering to each and everyone of them
the said portion and assignment so that there shall not be any cause of troubles or
differences among the brothers and sisters.
II Second Page

And this is the day in which we agreed that we are making the partitioning and assigning the
respective assignment of the said fishpond, and this being in the month of March, 17th 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.
Now, this is the final disposition that I am making in writing and it is this that should be
followed and complied with in order that any differences or troubles may be forestalled and
nothing will happen along these troubles among my children, and that they will be in good
relations among themselves, brothers and sisters;
And those improvements and fruits of the land; mangoes, bamboos and all coconut trees
and all others like the other kind of bamboo by name of Bayog, it is their right to get if they so
need, in order that there shall be nothing that anyone of them shall complain against the
other, and against anyone of the brothers and sisters.
III THIRD PAGE
And that referring to the other places of property, where the said property is located, the
same being the fruits of our earnings of the two mothers of my children, there shall be equal
portion of each share among themselves, and or to be benefitted with all those property,
which property we have been able to acquire.
That in order that there shall be basis of the truth of this writing (WILL) which I am here
hereof manifesting of the truth and of the fruits of our labor which their two mothers, I am
signing my signature below hereof, and that this is what should be complied with, by all the
brothers and sisters, the children of their two mothers JULIANA QUINTERO PILARISA
and CASIANA AQUINO VILLANUEVA Your father who made this writing (WILL), and he is,
MELECIO LABRADOR y RALUTIN (p. 46, Rollo)
The petition, which principally alleges that the holographic will is really dated, although the date is
not in its usual place, is impressed with merit.
The will has been dated in the hand of the testator himself in perfect compliance with Article 810. It
is worthy of note to quote the first paragraph of the second page of the holographic will, viz:
1wphi1

And this is the day in which we agreed that we are making the partitioning and assigning the
respective assignment of the said fishpond, and this being in the month of March, 17th 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.
(emphasis supplied) (p. 46, Rollo)
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. These
requirements are present in the subject will.
Respondents claim that the date 17 March 1968 in the will was when the testator and his
beneficiaries entered into an agreement among themselves about "the partitioning and assigning the
respective assignments of the said fishpond," and was not the date of execution of the holographic
will; hence, the will is more of an "agreement" between the testator and the beneficiaries thereof to
the prejudice of other compulsory heirs like the respondents. This was thus a failure to comply with
Article 783 which defines a will as "an act whereby a person is permitted, with the formalities

prescribed by law, to control to a certain degree the disposition of his estate, to take effect after his
death."
Respondents are in error. The intention to show 17 March 1968 as the date of the execution of the
will is plain from the tenor of the succeeding words of the paragraph. As aptly put by petitioner, the
will was not an agreement but a unilateral act of Melecio Labrador who plainly knew that what he
was executing was a will. The act of partitioning and the declaration that such partitioning as the
testator's instruction or decision to be followed reveal that Melecio Labrador was fully aware of the
nature of the estate property to be disposed of and of the character of the testamentary act as a
means to control the disposition of his estate.
Anent the second issue of finding the reimbursement of the P5,000 representing the redemption
price as erroneous, respondent court's conclusion is incorrect. When private respondents sold the
property (fishpond) with right to repurchase to Navat for P5,000, they were actually selling property
belonging to another and which they had no authority to sell, rendering such sale null and void.
Petitioners, thus "redeemed" the property from Navat for P5,000, to immediately regain possession
of the property for its disposition in accordance with the will. Petitioners therefore deserve to be
reimbursed the P5,000.
PREMISES CONSIDERED, the decision of the Court of Appeals dated March 10, 1988 is hereby
REVERSED. The holographic will of Melecio Labrador is APPROVED and ALLOWED probate. The
private respondents are directed to REIMBURSE the petitioners the sum of Five Thousand Pesos
(P5,000.00).
SO ORDERED.
Melencio-Herrera, Padilla, Sarmiento and Regalado, JJ., concur.

Footnotes
Penned by Justice Jorge S. Imperial and concurred in by Justices Jose A.R. Melo and
Manuel C. Herrera
1

Article 810 provides: 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.
2

The Lawphil Project - Arellano Law Foundation

Republic of the Philippines

SUPREME COURT
Manila
FIRST DIVISION

G.R. No. 123486

August 12, 1999

EUGENIA RAMONAL CODOY, and MANUEL RAMONAL, petitioners,

vs.
EVANGELINE R. CALUGAY, JOSEPHINE SALCEDO, and UEFEMIA PATIGAS, respondents.
PARDO, J.:
Before us is a petition for review on certiorari of the decision of the Court of Appeals1 and its
resolution denying reconsideration, ruling:
Upon the unrebutted testimony of appellant Evangeline Calugay and witness Matilde
Ramonal Binanay, the authenticity of testators holographic will has been established and the
handwriting and signature therein (exhibit S) are hers, enough to probate said will. Reversal
of the judgment appealed from and the probate of the holographic will in question be called
for. The rule is that after plaintiff has completed presentation of his evidence and the
defendant files a motion for judgment on demurrer to evidence on the ground that upon the
facts and the law plaintiff has shown no right to relief, if the motion is granted and the order
to dismissal is reversed on appeal, the movant loses his right to present evidence in his
behalf (Sec, 1 Rule 35 Revised Rules of Court). Judgment may, therefore, be rendered for
appellant in the instant case.
Wherefore, the order appealed from is REVERSED and judgment rendered allowing the
probate of the holographic will of the testator Matilde Seo Vda. de Ramonal. 2
The facts are as follows:
On April 6, 1990, Evangeline Calugay, Josephine Salcedo and Eufemia Patigas, devisees and
legatees of the holographic will of the deceased Matilde Seo Vda. de Ramonal, filed with the
Regional Trial Court, Misamis Oriental, Branch 18, a petition3 for probate of the holographic will of
the deceased, who died on January 16, 1990.
In the petition, respondents claimed that the deceased Matilde Seo Vda. de Ramonal, was of
sound and disposing mind when she executed the will on August 30, 1978, that there was no fraud,
undue influence, and duress employed in the person of the testator, and will was written voluntarily.
The assessed value of the decedent's property, including all real and personal property was about
P400,000.00, at the time of her death.4
On June 28, 1990, Eugenia Ramonal Codoy and Manuel Ramonal filed an opposition 5 to the petition
for probate, alleging that the holographic will was a forgery and that the same is even illegible. This
gives an impression that a "third hand" of an interested party other than the "true hand" of Matilde
Seo Vda. de Ramonal executed the holographic will.
Petitioners argued that the repeated dates incorporated or appearing on will after every disposition is
out of the ordinary. If the deceased was the one who executed the will, and was not forced, the dates
and the signature should appear at the bottom after the dispositions, as regularly done and not after
every disposition. And assuming that the holographic will is in the handwriting of the deceased, it
was procured by undue and improper pressure and influence on the part of the beneficiaries, or
through fraud and trickery.
1wphi1.nt

Respondents presented six (6) witnesses and various documentary evidence. Petitioners instead of
presenting their evidence, filed a demurrer6 to evidence, claiming that respondents failed to establish
sufficient factual and legal basis for the probate of the holographic will of the deceased Matilde Seo
Vda. de Ramonal.
On November 26, 1990, the lower Court issued an order, the dispositive portion of which reads:
WHEREFORE, in view of the foregoing consideration, the Demurrer to Evidence having
being well taken, same is granted, and the petition for probate of the document (Exhibit "S")
on the purported Holographic Will of the late Matilde Seo Vda. de Ramonal, is denied for
insufficiency of evidence and lack of merits.7
On December 12, 1990, respondents filed a notice of appeal, 8 and in support of their appeal, the
respondents once again reiterated the testimony of the following witnesses, namely: (1) Augusto
Neri; (2) Generosa Senon; (3) Matilde Ramonal Binanay; (4) Teresita Vedad; (5) Fiscal Rodolfo
Waga; and (6) Evangeline Calugay.
To have a clear understanding of the testimonies of the witnesses, we recite an account of their
testimonies.
Augusto Neri, Clerk of Court, Court of First Instance of Misamis Oriental, where the special
proceedings for the probate of the holographic will of the deceased was filed. He produced and
identified the records of the case. The documents presented bear the signature of the deceased,
Matilde Seo Vda. de Ramonal, for the purpose of laying the basis for comparison of the handwriting
of the testatrix, with the writing treated or admitted as genuine by the party against whom the
evidence is offered.
Generosa Senon, election registrar of Cagayan de Oro, was presented to produced and identify the
voter's affidavit of the decedent. However, the voters' affidavit was not produced for the same was
already destroyed and no longer available.
Matilde Ramonal Binanay, testified that the deceased Matilde Seo Vda. de Ramonal was her aunt,
and that after the death of Matilde's husband, the latter lived with her in her parent's house for
eleven (11) years from 1958 to 1969. During those eleven (11) years of close association the
deceased, she acquired familiarity with her signature and handwriting as she used to accompany her
(deceased Matilde Seo Vda. de Ramonal) in collecting rentals from her various tenants of
commercial buildings, and deceased always issued receipts. In addition to this, she (witness Matilde
Binanay) assisted the deceased in posting the records of the accounts, and carried personal letters
of the deceased to her creditors.
Matilde Ramonal Binanay further testified that at the time of the death of Matilde Vda. de Ramonal,
she left a holographic will dated August 30, 1978, which was personally and entirely written, dated
and signed, by the deceased and that all the dispositions therein, the dates, and the signatures in
said will, were that of the deceased.
Fiscal Rodolfo Waga testified that before he was appointed City Fiscal of Cagayan de Oro, he was a
practicing lawyer, and handled all the pleadings and documents signed by the deceased in
connection with the proceedings of her late husband, as a result of which he is familiar with the
handwriting of the latter. He testified that the signature appearing in the holographic will was similar
to that of the deceased, Matilde Seo Vda. de Ramonal, but he can not be sure.

The fifth witness presented was Mrs. Teresita Vedad, an employee of the Department of
Environment and Natural Resources, Region 10. She testified that she processed the application of
the deceased for pasture permit and was familiar with the signature of the deceased, since the
signed documents in her presence, when the latter was applying for pasture permit.
Finally, Evangeline Calugay, one of the respondents, testified that she had lived with the deceased
since birth, and was in fact adopted by the latter. That after a long period of time she became familiar
with the signature of the deceased. She testified that the signature appearing in the holographic will
is the true and genuine signature of Matilde Seo Vda. de Ramonal.
The holographic will which was written in Visayan, is translated in English as follows:
Instruction
August 30, 1978
1. My share at Cogon, Raminal Street, for Evangeline Calugay.
(Sgd) Matilde Vda de Ramonal
August 30, 1978
2. Josefina Salcedo must be given 1,500 square meters at Pinikan Street.
(Sgd) Matilde Vda de Ramonal
August 30, 1978
3. My jewelry's shall be divided among:
1. Eufemia Patigas
2. Josefina Salcedo
3. Evangeline Calugay
(Sgd) Matilde Vda de Ramonal
August 30, 1978
4. I bequeath my one (1) hectare land at Mandumol, Indahag to Evangeline R. Calugay
(Sgd) Matilde Vda de Ramonal
August 30, 1978
5. Give the 2,500 Square Meters at Sta. Cruz Ramonal Village in favor of Evangeline R.
Calugay, Helen must continue with the Sta. Cruz, once I am no longer around.
(Sgd) Matilde Vda de Ramonal

August 30, 1978

6. Bury me where my husband Justo is ever buried.
(Sgd) Matilde Vda de Ramonal
August 30, 1978
Gene and Manuel:
Follow my instruction in order that I will rest peacefully.
Mama
Matilde Vda de Ramonal
On October 9, 1995, the Court of Appeals, rendered decision 9 ruling that the appeal was meritorious.
Citing the decision in the case of Azaola vs. Singson, 109 Phil. 102, penned by Mr. Justice J. B. L.
Reyes, a recognized authority in civil law, the Court of Appeals held:
. . . even if the genuineness of the holographic will were contested, we are of the opinion that
Article 811 of our present civil code can not be interpreted as to require the compulsory
presentation of three witnesses to identify the handwriting of the testator, under penalty of
having the probate denied. Since no witness may have been present at the execution of the
holographic will, none being required by law (art. 810, new civil code), it becomes obvious
that the existence of witnesses 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 express) "that the will and
the signature are in the handwriting of the testator." There may be no available witness
acquainted with the testator's hand; or even if so familiarized, the witness maybe unwilling to
give a positive opinion. Compliance with the rule of paragraph 1 of article 811 may thus
become an impossibility. That is evidently the reason why the second paragraph of article
811 prescribes that
in the absence of any competent witness referred to in the preceding paragraph, and if the
court deems it necessary, expert testimony may be resorted to.
As can be see, the law foresees, the possibility that no qualified witness ma 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.
It may be true that the rule of this article (requiring that three witnesses be presented if the
will is contested and only one if no contest is had) was derived from the rule established for
ordinary testaments (CF Cabang vs. Delfianado, 45 PHIL 291; Tolentino v. Francisco, 57
PHIL 742). But it can not be ignored that the requirement can be considered mandatory only
in case of ordinary testaments, precisely because the presence of at least three witnesses at
the execution of ordinary wills is made by law essential to their validity (Art. 805). Where the
will is holographic, no witness need be present (art. 10), and the rule requiring production of
three witnesses must be deemed merely permissive if absurd results are to be avoided.

Again, under Art. 811, the resort to expert evidence is conditioned by the words "if the court
deem it necessary", which reveal that 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.
Paraphrasing Azaola vs. Singson, even if the genuineness of the holographic will were
contested, Article 811 of the civil code cannot be interpreted as to require the compulsory
presentation of three witnesses to identify the handwriting of the testator, under penalty of
the having the probate denied. No witness need be present in the execution of the
holographic will. And the rule requiring the production of three witnesses is merely
permissive. What the law deems essential is that the court is convinced of the authenticity of
the will. Its duty is to exhaust all available lines of inquiry, for the state is as much interested
in the proponent that the true intention of the testator be carried into effect. And because the
law leaves it to the trial court to decide if experts are still needed, no unfavorable inference
can be drawn from a party's failure to offer expert evidence, until and unless the court
expresses dissatisfaction with the testimony of the lay witnesses.10
According to the Court of Appeals, Evangeline Calugay, Matilde Ramonal Binanay and other
witnesses definitely and in no uncertain terms testified that the handwriting and signature in the
holographic will were those of the testator herself.
Thus, upon the unrebutted testimony of appellant Evangeline Calugay and witness Matilde Ramonal
Binanay, the Court of Appeals sustained the authenticity of the holographic will and the handwriting
and signature therein, and allowed the will to probate.
Hence, this petition.
The petitioners raise the following issues:
(1) Whether or not the ruling of the case of Azaola vs. Singson, 109 Phil. 102, relied upon by
the respondent Court of Appeals, was applicable to the case.
(2) Whether or not the Court of Appeals erred in holding that private respondents had been
able to present credible evidence to that the date, text, and signature on the holographic will
written entirely in the hand of the testatrix.
(3) Whether or not the Court of Appeals erred in not analyzing the signatures in the
holographic will of Matilde Seo Vda. de Ramonal.
In this petition, the petitioners ask whether the provisions of Article 811 of the Civil Code are
permissive or mandatory. The article provides, as a requirement for the probate of a contested
holographic will, that at least three witnesses explicitly declare that the signature in the will is the
genuine signature of the testator.
1wphi1.nt

We are convinced, based on the language used, that Article 811 of the Civil Code is mandatory. The
word "shall" connotes a mandatory order. We have ruled that "shall" in a statute commonly denotes

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.11
Laws are enacted to achieve a goal intended and to guide against an evil or mischief that aims to
prevent. In the case at bar, the goal to achieve 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.
So, we believe that the paramount consideration in the present petition is to determine the true intent
of the deceased. An exhaustive and objective consideration of the evidence is imperative to
establish the true intent of the testator.
It will be noted that not all the witnesses presented by the respondents testified explicitly that they
were familiar with the handwriting of testator. In the case of Augusto Neri, clerk of court, Court of
First Instance, Misamis Oriental, he merely identified the record of Special Proceedings No. 427
before said court. He was not presented to declare explicitly that the signature appearing in the
holographic was that of the deceased.
Generosa E. Senon, the election registrar of Cagayan de Oro City, was presented to identify the
signature of the deceased in the voter's affidavit, which was not even produced as it was no longer
available.
Matilde Ramonal Binanay, on the other hand, testified that:
Q. And you said for eleven (11) years Matilde Vda de Ramonal resided with your parents at
Pinikitan, Cagayan de Oro City. Would you tell the court what was your occupation or how
did Matilde Vda de Ramonal keep herself busy that time?
A. Collecting rentals.
Q. From where?
A. From the land rentals and commercial buildings at Pabayo-Gomez streets. 12
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Q. Who sometime accompany her?

A. I sometimes accompany her.
Q. In collecting rentals does she issue receipts?
A. Yes, sir.13
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Q. Showing to you the receipt dated 23 October 1979, is this the one you are referring to as
one of the receipts which she issued to them?
A. Yes, sir.

Q. Now there is that signature of Matilde vda. De Ramonal, whose signature is that Mrs.
Binanay?
A. Matilde vda. De Ramonal.
Q. Why do you say that is the signature of Matilde Vda. De Ramonal?
A. I am familiar with her signature.
Q. Now, you tell the court Mrs. Binanay, whether you know Matilde vda de Ramonal kept
records of the accounts of her tenants?
A. Yes, sir.
Q. Why do you say so?
A. Because we sometimes post a record of accounts in behalf of Matilde Vda. De Ramonal.
Q. How is this record of accounts made? How is this reflected?
A. In handwritten.14
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Q. In addition to collection of rentals, posting records of accounts of tenants and deed of

sale which you said what else did you do to acquire familiarity of the signature of Matilde Vda
De Ramonal?
A. Posting records.
Q. Aside from that?
A. Carrying letters.
Q. Letters of whom?
A. Matilde.
Q. To whom?
A. To her creditors.15
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Q. You testified that at time of her death she left a will. I am showing to you a document with
its title "tugon" is this the document you are referring to?
A. Yes, sir.

Q. Showing to you this exhibit "S", there is that handwritten "tugon", whose handwriting is
this?
A. My Aunt.
Q. Why do you say this is the handwriting of your aunt?
A. Because I am familiar with her signature.16
What Ms. Binanay saw were pre-prepared receipts and letters of the deceased, which she either
mailed or gave to her tenants. She did not declare that she saw the deceased sign a document or
write a note.
Further, during the cross-examination, the counsel for petitioners elicited the fact that the will was not
found in the personal belongings of the deceased but was in the possession of Ms. Binanay. She
testified that:
Q. Mrs. Binanay, when you were asked by counsel for the petitioners if the late Matilde
Seno vda de Ramonal left a will you said, yes?
A. Yes, sir.
Q. Who was in possession of that will?
A. I.
Q. Since when did you have the possession of the will?
A. It was in my mother's possession.
Q. So, it was not in your possession?
A. Sorry, yes.
Q. And when did you come into possession since as you said this was originally in the
possession of your mother?
A. 1985.17
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Q. Now, Mrs. Binanay was there any particular reason why your mother left that will to you
and therefore you have that in your possession?
A. It was not given to me by my mother, I took that in the aparador when she died.
Q. After taking that document you kept it with you?
A. I presented it to the fiscal.

Q. For what purpose?

A. Just to seek advice.
Q. Advice of what?
A. About the will.18
In her testimony it was also evident that Ms. Binanay kept the fact about the will from petitioners, the
legally adopted children of the deceased. Such actions put in issue her motive of keeping the will a
secret to petitioners and revealing it only after the death of Matilde Seo Vda. de Ramonal.
In the testimony of Ms. Binanay, the following were established:
Q. Now, in 1978 Matilde Seno Vda de Ramonal was not yet a sickly person is that correct?
A. Yes, sir.
Q. She was up and about and was still uprightly and she could walk agilely and she could
go to her building to collect rentals, is that correct?
A. Yes, sir.19
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Q. Now, let us go to the third signature of Matilde Ramonal. Do you know that there are
retracings in the word Vda.?
A. Yes, a little. The letter L is continuous.
Q. And also in Matilde the letter L is continued to letter D?
A. Yes, sir.
Q. Again the third signature of Matilde Vda de Ramonal the letter L in Matilde is continued
towards letter D.
A. Yes, sir.
Q. And there is a retracing in the word Vda.?
A. Yes, sir.20
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Q. Now, that was 1979, remember one year after the alleged holographic will. Now, you
identified a document marked as Exhibit R. This is dated January 8, 1978 which is only about
eight months from August 30, 1978. Do you notice that the signature Matilde Vda de
Ramonal is beautifully written and legible?

A. Yes, sir the handwriting shows that she was very exhausted.
Q. You just say that she was very exhausted while that in 1978 she was healthy was not
sickly and she was agile. Now, you said she was exhausted?
A. In writing.
Q. How did you know that she was exhausted when you were not present and you just tried
to explain yourself out because of the apparent inconsistencies?
A. That was I think. (sic).
Q. Now, you already observed this signature dated 1978, the same year as the alleged
holographic will. In exhibit I, you will notice that there is no retracing; there is no hesitancy
and the signature was written on a fluid movement. . . . And in fact, the name Eufemia R.
Patigas here refers to one of the petitioners?
A. Yes, sir.
Q. You will also notice Mrs. Binanay that it is not only with the questioned signature
appearing in the alleged holographic will marked as Exhibit X but in the handwriting
themselves, here you will notice the hesitancy and tremors, do you notice that?
A. Yes, sir.21
Evangeline Calugay declared that the holographic will was written, dated and signed in the
handwriting of the testator. She testified that:
Q. You testified that you stayed with the house of the spouses Matilde and Justo Ramonal
for the period of 22 years. Could you tell the court the services if any which you rendered to
Matilde Ramonal?
A. During my stay I used to go with her to the church, to market and then to her
transactions.
Q. What else? What services that you rendered?
A. After my college days I assisted her in going to the bank, paying taxes and to her lawyer.
Q. What was your purpose of going to her lawyer?
A. I used to be her personal driver.
Q. In the course of your stay for 22 years did you acquire familiarity of the handwriting of
Matilde Vda de Ramonal?
A. Yes, sir.
Q. How come that you acquired familiarity?

A. Because I lived with her since birth.22

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Q. Now, I am showing to you Exhibit S which is captioned "tugon" dated Agosto 30, 1978
there is a signature here below item No. 1, will you tell this court whose signature is this?
A. Yes, sir, that is her signature.
Q. Why do you say that is her signature?
A. I am familiar with her signature.23
So, the only reason that Evangeline can give as to why she was familiar with the handwriting of the
deceased was because she lived with her since birth. She never declared that she saw the
deceased write a note or sign a document.
The former lawyer of the deceased, Fiscal Waga, testified that:
Q. Do you know Matilde Vda de Ramonal?
A. Yes, sir I know her because she is my godmother the husband is my godfather. Actually I
am related to the husband by consanguinity.
Q. Can you tell the name of the husband?
A. The late husband is Justo Ramonal.24
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Q. Can you tell this court whether the spouses Justo Ramonal and Matilde Ramonal have
legitimate children?
A. As far as I know they have no legitimate children.25
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Q. You said after becoming a lawyer you practice your profession? Where?
A. Here in Cagayan de Oro City.
Q. Do you have services rendered with the deceased Matilde vda de Ramonal?
A. I assisted her in terminating the partition, of properties.
Q. When you said assisted, you acted as her counsel? Any sort of counsel as in what case
is that, Fiscal?
A. It is about the project partition to terminate the property, which was under the court
before.26

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Q. Appearing in special proceeding no. 427 is the amended inventory which is marked as
exhibit N of the estate of Justo Ramonal and there appears a signature over the type written
word Matilde vda de Ramonal, whose signature is this?
A. That is the signature of Matilde Vda de Ramonal.
Q. Also in exhibit n-3, whose signature is this?
A. This one here that is the signature of Mrs. Matilde vda de Ramonal. 27
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Q. Aside from attending as counsel in that Special Proceeding Case No. 427 what were the
other assistance wherein you were rendering professional service to the deceased Matilde
Vda de Ramonal?
A. I can not remember if I have assisted her in other matters but if there are documents to
show that I have assisted then I can recall.28
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Q. Now, I am showing to you exhibit S which is titled "tugon", kindly go over this document,
Fiscal Waga and tell the court whether you are familiar with the handwriting contained in that
document marked as exhibit "S"?
A. I am not familiar with the handwriting.
Q. This one, Matilde Vda de Ramonal, whose signature is this?
A. I think this signature here it seems to be the signature of Mrs. Matilde vda de Ramonal.
Q. Now, in item No. 2 there is that signature here of Matilde Vda de Ramonal, can you tell
the court whose signature is this?
A. Well, that is similar to that signature appearing in the project of partition.
Q. Also in item no. 3 there is that signature Matilde Vda de Ramonal, can you tell the court
whose signature is that?
A. As I said, this signature also seems to be the signature of Matilde vda de Ramonal.
Q. Why do you say that?
A. Because there is a similarity in the way it is being written.
Q. How about this signature in item no. 4, can you tell the court whose signature is this?
A. The same is true with the signature in item no. 4. It seems that they are similar.29

xxx

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Q. Mr. Prosecutor, I heard you when you said that the signature of Matilde Vda de Ramonal
Appearing in exhibit S seems to be the signature of Matilde vda de Ramonal?
A. Yes, it is similar to the project of partition.
Q. So you are not definite that this is the signature of Matilde vda de Ramonal. You are
merely supposing that it seems to be her signature because it is similar to the signature of
the project of partition which you have made?
A. That is true.30
From the testimonies of these witnesses, the Court of Appeals allowed the will to probate and
disregard the requirement of three witnesses in case of contested holographic will, citing the
decision in Azaola vs. Singson,31ruling that the requirement is merely directory and not mandatory.
In the case of Ajero vs. Court of Appeals,32 we said that "the object of the solemnities surrounding the
execution of wills is to close the door against bad faith and fraud, to avoid substitution of wills and
testaments and to guaranty their truth and authenticity. Therefore, the laws on this subject should be
interpreted in such a way as to attain these primordial ends. But on the other hand, also one must
not lose sight of the fact that it is not the object of the law to restrain and curtail the exercise of the
right to make a will.
However, we cannot eliminate the possibility of a false document being adjudged as the will of the
testator, which is why if the holographic will is contested, that law requires three witnesses to declare
that the will was in the handwriting of the deceased.
The will was found not in the personal belongings of the deceased but with one of the respondents,
who kept it even before the death of the deceased. In the testimony of Ms. Binanay, she revealed
that the will was in her possession as early as 1985, or five years before the death of the deceased.
There was no opportunity for an expert to compare the signature and the handwriting of the
deceased with other documents signed and executed by her during her lifetime. The only chance at
comparison was during the cross-examination of Ms. Binanay when the lawyer of petitioners asked
Ms. Binanay to compare the documents which contained the signature of the deceased with that of
the holographic will and she is not a handwriting expert. Even the former lawyer of the deceased
expressed doubts as to the authenticity of the signature in the holographic will.
A visual examination of the holographic will convince us that the strokes are different when
compared with other documents written by the testator. The signature of the testator in some of the
disposition is not readable. There were uneven strokes, retracing and erasures on the will.
Comparing the signature in the holographic will dated August 30, 1978,33 and the signatures in
several documents such as the application letter for pasture permit dated December 30, 1980, 34 and
a letter dated June 16, 1978,35 the strokes are different. In the letters, there are continuous flows of
the strokes, evidencing that there is no hesitation in writing unlike that of the holographic will. We,
therefore, cannot be certain that ruling holographic will was in the handwriting by the deceased.

IN VIEW WHEREOF, the decision appealed from is SET ASIDE. The records are ordered remanded
to the court of origin with instructions to allow petitioners to adduce evidence in support of their
opposition to the probate of the holographic will of the deceased Matilde Seo vda. de Ramonal.
1wphi1.nt

No costs.
SO ORDERED.
Davide, Jr., C.J., Puno, Kapunan and Ynares-San
Republic of the Philippines
SUPREME COURT
Manila
FIRST DIVISION
G.R. No. L-58509 December 7, 1982
IN THE MATTER OF THE PETITION TO APPROVE THE WILL OF RICARDO B. BONILLA
deceased, MARCELA RODELAS, petitioner-appellant,
vs.
AMPARO ARANZA, ET AL., oppositors-appellees, ATTY. LORENZO SUMULONG, intervenor.
Luciano A. Joson for petitioner-appellant.
Cesar Paralejo for oppositor-appellee.

RELOVA, J.:
This case was certified to this Tribunal by the Court of Appeals for final determination pursuant to
Section 3, Rule 50 of the Rules of Court.
As found by the Court of Appeals:
... On January 11, 1977, appellant filed a petition with the Court of First Instance of
Rizal for the probate of the holographic will of Ricardo B. Bonilla and the issuance of
letters testamentary in her favor. The petition, docketed as Sp. Proc. No. 8432, was
opposed by the appellees Amparo Aranza Bonilla, Wilferine Bonilla Treyes Expedita
Bonilla Frias and Ephraim Bonilla on the following grounds:
(1) Appellant 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 alleged copy of the alleged holographic will did not contain a disposition of
property after death and was not intended to take effect after death, and therefore it
was not a will

(3) The alleged hollographic will itself,and not an alleged copy thereof, must be
produced, otherwise it would produce no effect, as held in Gam v. Yap, 104 Phil. 509;
and
(4 ) The deceased did not leave any will, holographic or otherwise, executed and
attested as required by law.
The appellees likewise moved for the consolidation of the case with another case Sp.
Proc. No, 8275). Their motion was granted by the court in an order dated April 4,
1977.
On November 13, 1978, following the consolidation of the cases, the appellees
moved again to dismiss the petition for the probate of the will. They argued that:
(1) The alleged holographic was not a last will but merely an instruction as to the
management and improvement of the schools and colleges founded by decedent
Ricardo B. Bonilla; and
(2) Lost or destroyed holographic wills cannot be proved by secondary evidence
unlike ordinary wills.
Upon opposition of the appellant, the motion to dismiss was denied by the court in its
order of February 23, 1979.
The appellees then filed a motion for reconsideration on the ground that the order
was contrary to law and settled pronouncements and rulings of the Supreme Court,
to which the appellant in turn filed an opposition. On July 23, 1979, the court set
aside its order of February 23, 1979 and dismissed the petition for the probate of the
will of Ricardo B. Bonilla. The court said:
... It is our considered opinion that once the original copy of the holographic will is
lost, a copy thereof cannot stand in lieu of the original.
In the case of Gam vs. Yap, 104 Phil. 509, 522, the Supreme Court held that 'in the
matter of holographic wills the law, it is reasonable to suppose, regards the document
itself as the material proof of authenticity of said wills.
MOREOVER, this Court notes that the alleged holographic will was executed on
January 25, 1962 while Ricardo B. Bonilla died on May 13, 1976. In view of the lapse
of more than 14 years from the time of the execution of the will to the death of the
decedent, the fact that the original of the will could not be located shows to our mind
that the decedent had discarded before his death his allegedly missing Holographic
Will.
Appellant's motion for reconsideration was denied. Hence, an appeal to the Court of Appeals in
which it is contended that the dismissal of appellant's petition is contrary to law and well-settled
jurisprudence.
On July 7, 1980, appellees moved to forward the case to this Court on the ground that the appeal
does not involve question of fact and alleged that the trial court committed the following assigned
errors:

I. THE LOWER COURT ERRED IN HOLDING THAT A LOST HOLOGRAPHIC WILL

MAY NOT BE PROVED BY A COPY THEREOF;
II. THE LOWER COURT ERRED IN HOLDING THAT THE DECEDENT HAS
DISCARDED BEFORE HIS DEATH THE MISSING HOLOGRAPHIC WILL;
III. THE LOWER COURT ERRED IN DISMISSING APPELLANT'S WILL.
The only question here is whether a holographic will which was lost or cannot be found can be
proved by means of a photostatic copy. Pursuant to Article 811 of the Civil Code, probate of
holographic wills is the allowance of the will by the court after its due execution has been proved.
The probate may be uncontested or not. If uncontested, at least one Identifying witness is required
and, if no witness is available, experts may be resorted to. If contested, at least three Identifying
witnesses are required. However, if the holographic will has been lost or destroyed and no other
copy is available, the will can not be probated because the best and only evidence is the handwriting
of the testator in said will. It is necessary that there be a comparison between sample handwritten
statements of the testator and the handwritten will. But, a photostatic copy or xerox copy of the
holographic will may be allowed because comparison can be made with the standard writings of the
testator. In the case of Gam vs. Yap, 104 PHIL. 509, the Court ruled that "the execution and the
contents of a lost or destroyed holographic will may not be proved by the bare testimony of
witnesses who have seen and/or read such will. The will itself must be presented; otherwise, it shall
produce no effect. The law regards the document itself as material proof of authenticity." But, in
Footnote 8 of said decision, it says that "Perhaps it may be proved by a photographic or photostatic
copy. Even a mimeographed or carbon copy; or by other similar means, if any, whereby the
authenticity of the handwriting of the deceased may be exhibited and tested before the probate
court," Evidently, the photostatic or xerox copy of the lost or destroyed holographic will may be
admitted because then the authenticity of the handwriting of the deceased can be determined by the
probate court.
WHEREFORE, the order of the lower court dated October 3, 1979, denying appellant's motion for
reconsideration dated August 9, 1979, of the Order dated July 23, 1979, dismissing her petition to
approve the will of the late Ricardo B. Bonilla, is hereby SET ASIDE.
SO ORDERED.
Teehankee, Actg. C.J., Melencio-Herrera, Plana, Vasquez and Gutierrez, Jr., JJ., concur.

The Lawphil Project - Arellano Law Foundation

FIRST DIVISION
G.R. Nos. 75005-06 February 15, 1990

JOSE RIVERA petitioner,

vs.
INTERMEDIATE APPELLATE COURT and ADELAIDO J. RIVERA, respondents.
Lorenzo O. Navarro, Jr. for petitioner.
Regalado P. Morales for private respondent.

CRUZ, J.:
Was there only one Venancio Rivera in Mabalacat, Pampanga, or were there two?
On May 30, 1975, a prominent and wealthy resident of that town named Venancio Rivera died. On
July 28, 1975, Jose Rivera, claiming to be the only surviving legitimate son of the deceased, filed a
petition for the issuance of letters of administration over Venancio's estate. Docketed as SP No.
1076, this petition was opposed by Adelaido J. Rivera, who denied that Jose was the son of the
decedent. Adelaido averred that Venancio was his father and did not die intestate but in fact left two
holographic wills. 1
On November 7, 1975, Adelaido J. Rivera filed, also with the Regional Trial Court of Angeles City, a
petition for the probate of the holographic wills. Docketed as SP No. 1091, this petition was in turn
opposed by Jose Rivera, who reiterated that he was the sole heir of Venancio's intestate estate. 2
On November 11, 1975, the two cases were consolidated. Adelaido J. Rivera was later appointed
special administrator. After joint trial, Judge Eliodoro B. Guinto found that Jose Rivera was not the
son of the decedent but of a different Venancio Rivera who was married to Maria Vital. The Venancio
Rivera whose estate was in question was married to Maria Jocson, by whom he had seven children,
including Adelaido. Jose Rivera had no claim to this estate because the decedent was not his father.
The holographic wills were also admitted to probate.3
On appeal, the decision of the trial court was affirmed by the then Intermediate Appellate Court. 4 Its
decision is now the subject of this petition, which urges the reversal of the respondent court.
In support of his claim that he was the sole heir of the late Venancio Rivera, Jose sought to show
that the said person was married in 1928 to Maria Vital, who was his mother. He submitted for this
purpose Exhibit A, the marriage certificate of the couple, and Exhibit B, his own baptismal certificate
where the couple was indicated as his parents. The petitioner also presented Domingo Santos, who
testified that Jose was indeed the son of the couple and that he saw Venancio and Jose together
several times. 5 Jose himself stressed that Adelaido considered him a half-brother and kissed his hand as
a sign of respect whenever they met. He insisted that Adelaido and his brothers and sisters were
illegitimate children, sired by Venancio with Maria Jocson. 6
Adelaido, for his part, maintained that he and his brothers and sisters were born to Venancio Rivera
and Maria Jocson, who were legally married and lived as such for many years. He explained that he
could not present his parents' marriage certificate because the record of marriages for 1942 in
Mabalacat were destroyed when the town was burned during the war, as certified by Exhibit 6. 7 He
also submitted his own birth certificate and those of his sisters Zenaida and Yolanda Rivera, who were

each described therein as the legimitate children of Venancio Rivera and Maria Jocson. 8 Atty. Regalado
P. Morales, then 71 years of age, affirmed that he knew the deceased and his parents, Magno Rivera and
Gertrudes de los Reyes, and it was during the Japanese occupation that Venancio introduced to him
Maria Jocson as his wife. 9 To prove that there were in fact two persons by the same name of Venancio
Rivera, Adelaido offered Venancio Rivera's baptismal certificate showing that his parents were Magno
Rivera and Gertrudes de los Reyes, 10as contrasted with the marriage certificate submitted by Jose, which
indicated that the Venancio Rivera subject thereof was the son of Florencio Rivera and Estrudez
Reyes. 11 He also denied kissing Jose's hand or recognizing him as a brother. 12

We find in favor of Adelaido J. Rivera.

It is true that Adelaido could not present his parents' marriage certificate because, as he explained it,
the marriage records for 1942 in the Mabalacat civil registry were burned during the war. Even so, he
could still rely on the presumption of marriage, since it is not denied that Venancio Rivera and Maria
Jocson lived together as husband and wife for many years, begetting seven children in all during that
time.
According to Article 220 of the Civil Code:
In case of doubt, all presumptions favor the solidarity of the family. Thus every
intendment of the law or fact leans toward the validity of marriage, the indissolubility
of the marriage bonds, the legitimacy of children, ... .
The Rules of Court, in Rule 131, provides:
SEC. 3. Disputable presumptions. The following presumptions are satisfactory if
uncontradicted, but may be contradicted and overcome by other evidence:
xxx xxx xxx
(aa) That a man and woman deporting themselves as husband and wife have
entered into a lawful contract of marriage.
By contrast, although Jose did present his parents' marriage certificate, Venancio was described
therein as the son of Florencio Rivera. Presumably, he was not the same Venancio Rivera described
in Exhibit 4, his baptismal certificate, as the son of Magno Rivera. While we realize that such
baptismal certificate is not conclusive evidence of Venancio's filiation (which is not the issue here) it
may nonetheless be considered to determine his real identity. Jose insists that Magno and Florencio
are one and the same person, arguing that it is not uncommon for a person to be called by different
names. The Court is not convinced. There is no evidence that Venancio's father was called either
Magno or Florencio. What is more likely is that two or more persons may live at the same time and
bear the same name, even in the same community. That is what the courts below found in the cases
at bar.
What this Court considers particularly intriguing is why, if it is true that he was the legitimate son of
Venancio Rivera, Jose did not assert his right as such when his father was still alive. By his own
account, Jose supported himself and presumably also his mother Maria Vital as a gasoline
attendant and driver for many years. All the time, his father was residing in the same town and
obviously prospering and available for support. His alleged father was openly living with another

woman and raising another family, but this was apparently accepted by Jose without protest, taking
no step whatsoever to invoke his status. If, as he insists, he and Venancio Rivera were on cordial
terms, there is no reason why the father did not help the son and instead left Jose to fend for himself
as a humble worker while his other children by Maria Jocson enjoyed a comfortable life. Such
paternal discrimination is difficult to understand, especially if it is considered assuming the claims
to be true that Jose was the oldest and, by his own account, the only legitimate child of Venancio
Rivera.
And there is also Maria Vital, whose attitude is no less incomprehensible. As Venancio's legitimate
wife if indeed she was she should have objected when her husband abandoned her and
founded another family by another woman, and in the same town at that. Seeing that the children of
Maria Jocson were being raised well while her own son Jose was practically ignored and neglected,
she nevertheless did not demand for him at least support, if not better treatment, from his legitimate
father. It is unnatural for a lawful wife to say nothing if she is deserted in favor of another woman and
for a caring mother not to protect her son's interests from his wayward father's neglect. The fact is
that this forsaken wife never demanded support from her wealthy if errant husband. She did not file a
complaint for bigamy or concubinage against Venancio Rivera and Maria Jocson, the alleged
partners in crime and sin. Maria Vital was completely passive and complaisant.
Significantly, as noted by the respondent court, Maria Vital was not even presented at the trial to
support her son's allegations that she was the decedent's lawful wife. Jose says this was not done
because she was already old and bedridden then. But there was no impediment to the taking of her
deposition in her own house. No effort was made toward this end although her testimony was vital to
the petitioner's cause. Jose dismisses such testimony as merely "cumulative," but this Court does
not agree. Having alleged that Maria Jocson's marriage to Venancio Rivera was null and void, Jose
had the burden of proving that serious allegation.
We find from the evidence of record that the respondent court did not err in holding that the
Venancio Rivera who married Maria Jocson in 1942 was not the same person who married Maria
Vital, Jose's legitimate mother, in 1928. Jose belonged to a humbler family which had no relation
whatsoever with the family of Venancio Rivera and Maria Vital. This was more prosperous and
prominent. Except for the curious Identity of names of the head of each, there is no evidence linking
the two families or showing that the deceased Venancio Rivera was the head of both.
Now for the holographic wills. The respondent court considered them valid because it found them to
have been written, dated and signed by the testator himself in accordance with Article 810 of the
Civil Code. It also held there was no necessity of presenting the three witnesses required under
Article 811 because the authenticity of the wills had not been questioned.
The existence and therefore also the authenticity of the holographic wills were questioned by Jose
Rivera. In his own petition in SP No. 1076, he declared that Venancio Rivera died intestate; and in
SP No. 1091, he denied the existence of the holographic wills presented by Adelaido Rivera for
probate. In both proceedings, Jose Rivera opposed the holographic wills submitted by Adelaido
Rivera and claimed that they were spurious. Consequently, it may be argued, the respondent court
should have applied Article 811 of the Civil Code, providing as follows:
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 flaw in this argument is that, as we have already determined, Jose Rivera is not the son of the
deceased Venancio Rivera whose estate is in question. Hence, being a mere stranger, he had no
personality to contest the wills and his opposition thereto did not have the legal effect of requiring the
three witnesses. The testimony of Zenaida and Venancio Rivera, Jr., who authenticated the wills as
having been written and signed by their father, was sufficient.
WHEREFORE, the petition is DENIED and the challenged decision is AFFIRMED, with costs against
the petitioner.
SO ORDERED.
Narvasa (Chairman), Gancayco, Grio-Aquino and Medialdea, JJ., concur.

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. L-12190

August 30, 1958

TESTATE ESTATE OF FELICIDAD ESGUERRA ALTO-YAP deceased. FAUSTO E.

GAN, petitioner-appellant,
vs.
ILDEFONSO YAP, oppositor-appellee.
Benedicto C. Belran, Crispin D. Baizas and Roberto H. Benitez for appellant.
Arturo M. Tolentino for appellee.
BENGZON, J.:
On November 20, 1951, Felicidad Esguerra Alto Yap died of heart failure in the University of Santo
Tomas Hospital, leaving properties in Pulilan, Bulacan, and in the City of Manila.
On March 17, 1952, Fausto E. Gan initiated them proceedings in the Manila court of first instance
with a petition for the probate of a holographic will allegedly executed by the deceased, substantially
in these words:

Nobyembre 5, 1951.

Ako, si Felicidad E. Alto-Yap, may asawa, at ganap na pag-iisip, ay nagsasalaysay na ang

aking kayamanan sa bayan ng Pulilan, Bulacan ay aking ipinamamana sa aking mga
kamag-anakang sumusunod:

Vicente Esguerra,
Sr. .............................................

5 Bahagi

Fausto E.
Gan .........................................................

2 Bahagi

Rosario E.
Gan .........................................................

2 Bahagi

Filomena
Alto ..........................................................

1 Bahagi

Beatriz
1 Bahagi
Alto ..............................................................

At ang aking lahat ng ibang kayamanan sa Maynila at iba panglugar ay aking ipinamamana
sa aking asawang si Idelfonso D. Yap sa kondisyong siya'y magpapagawa ng isang Health
Center na nagkakahalaga ng di kukulangin sa halagang P60,000.00 sa bayan ng Pulilan,
Bulacan, na nakaukit ang aking pangalang Felicidad Esguerra-Alto. At kung ito ay may
kakulangan man ay bahala na ang aking asawa ang magpuno upang matupad ang aking
kagustuhan.

(Lagda) Felicidad E. Alto-Yap.

Opposing the petition, her surviving husband Ildefonso Yap asserted that the deceased had not left
any will, nor executed any testament during her lifetime.
After hearing the parties and considering their evidence, the Hon. Ramon R. San Jose,
Judge,1 refused to probate the alleged will. A seventy-page motion for reconsideration failed. Hence
this appeal.
The will itself was not presented. Petitioner tried to establish its contents and due execution by the
statements in open court of Felina Esguerra, Primitivo Reyes, Socorro Olarte and Rosario Gan
Jimenez, whose testimonies may be summarized as follows:

Sometime in 1950 after her last trip abroad, Felicidad Esguerra mentioned to her first cousin,
Vicente Esguerra, her desire to make a will. She confided however that it would be useless if her
husband discovered or knew about it. Vicente consulted with Fausto E. Gan, nephew of Felicidad,
who was then preparing for the bar examinations. The latter replied it could be done without any
witness, provided the document was entirely in her handwriting, signed and dated by her. Vicente
Esguerra lost no time in transmitting the information, and on the strength of it, in the morning of
November 5, 1951, in her residence at Juan Luna Street, Manila, Felicidad wrote, signed and dated
a holographic will substantially of the tenor above transcribed, in the presence of her niece, Felina
Esguerra (daughter of Vicente), who was invited to read it. In the afternoon of that day, Felicidad was
visited by a distant relative, Primitivo Reyes, and she allowed him to read the will in the presence of
Felina Esguerra, who again read it.
Nine days later, he had other visitors: Socorro Olarte a cousin, and Rosario Gan Jimenez, a niece.
To these she showed the will, again in the presence of Felina Esguerra, who read it for the third time.
When on November 19, 1951, Felicidad was confined at the U.S.T. Hospital for her last illness, she
entrusted the said will, which was contained in a purse, to Felina Esguerra. But a few hours later,
Ildefonso Yap, her husband, asked Felina for the purse: and being afraid of him by reason of his
well-known violent temper, she delivered it to him. Thereafter, in the same day, Ildefonso Yap
returned the purse to Felina, only to demand it the next day shortly before the death of Felicidad.
Again, Felina handed it to him but not before she had taken the purse to the toilet, opened it and
read the will for the last time.2
From the oppositor's proof it appears that Felicidad Esguerra had been suffering from heart disease
for several years before her death; that she had been treated by prominent physicians, Dr. Agerico
Sison, Dr. Agustin Liboro and others; that in May 1950 husband and wife journeyed to the United
States wherein for several weeks she was treated for the disease; that thereafter she felt well and
after visiting interesting places, the couple returned to this country in August 1950. However, her
ailment recurred, she suffered several attacks, the most serious of which happened in the early
morning of the first Monday of November 1951 (Nov. 5). The whole household was surprised and
alarmed, even the teachers of the Harvardian Colleges occupying the lower floors and of by the Yap
spouses. Physician's help was hurriedly called, and Dr. Tanjuaquio arrived at about 8:00 a.m., found
the patient hardly breathing, lying in bed, her head held high by her husband. Injections and oxygen
were administered. Following the doctor's advice the patient stayed in bed, and did nothing the
whole day, her husband and her personal attendant, Mrs. Bantique, constantly at her side. These
two persons swore that Mrs. Felicidad Esguerra Yap made no will, and could have made no will on
that day.
The trial judge refused to credit the petitioner's evidence for several reasons, the most important of
which were these: (a) if according to his evidence, the decedent wanted to keep her will a secret, so
that her husband would not know it, it is strange she executed it in the presence of Felina Esguerra,
knowing as she did that witnesses were unnecessary; (b) in the absence of a showing that Felina
was a confidant of the decedent it is hard to believe that the latter would have allowed the former to
see and read the will several times; (c) it is improbable that the decedent would have permitted
Primitivo Reyes, Rosario Gan Jimenez and Socorro Olarte to read her will, when she precisely
wanted its contents to remain a secret during her lifetime; (d) it is also improbable that her purpose
being to conceal the will from her husband she would carry it around, even to the hospital, in her
purse which could for one reason or another be opened by her husband; (e) if it is true that the
husband demanded the purse from Felina in the U.S.T. Hospital and that the will was there, it is hard
to believe that he returned it without destroying the will, the theory of the petitioner being precisely
that the will was executed behind his back for fear he will destroy it.

In the face of these improbabilities, the trial judge had to accept the oppositor's evidence that
Felicidad did not and could not have executed such holographic will.
In this appeal, the major portion of appellant's brief discussed the testimony of the oppositor and of
his witnesses in a vigorous effort to discredit them. It appears that the same arguments, or most of
them, were presented in the motion to reconsider; but they failed to induce the court a quo to change
its mind. The oppositor's brief, on the other hand, aptly answers the criticisms. We deem it
unnecessary to go over the same matters, because in our opinion the case should be decided not on
the weakness of the opposition but on the strength of the evidence of the petitioner, who has the
burden of proof.
The Spanish Civil Code permitted the execution of holographic wills along with other forms. The
Code of Civil Procedure (Act 190) approved August 7, 1901, adopted only one form, thereby
repealing the other forms, including holographic wills.
The New Civil Code effective in 1950 revived holographic wills in its arts. 810-814. "A person may
execute a holographic will which must be entirely written, dated, and signed by the hand of the
testator himself. It is subject to no other form and may be made in or out of the Philippines, and need
not be witnessed."
This is indeed a radical departure from the form and solemnities provided for wills under Act 190,
which for fifty years (from 1901 to 1950) required wills to be subscribed by the testator and three
credible witnesses in each andevery page; such witnesses to attest to the number of sheets used
and to the fact that the testator signed in their presence and that they signed in the presence of the
testator and of each other.
The object of such requirements it has been said, is to close the door against bad faith and fraud, to
prevent substitution of wills, to guarantee their truth and authencity (Abangan vs. Abangan, 40 Phil.,
476) and to avoid those who have no right to succeed the testator would succeed him and be
benefited with the probate of same. (Mendoza vs. Pilapil, 40 Off. Gaz., 1855). However, formal
imperfections may be brushed aside when authenticity of the instrument is duly proved. (Rodriguez
vs Yap, 40 Off. Gaz. 1st Supp. No. 3 p. 194.)
Authenticity and due execution is the dominant requirements to be fulfilled when such will is
submitted to the courts for allowance. For that purpose the testimony of one of the subscribing
witnesses would be sufficient if there is no opposition (Sec. 5, Rule 77). If there is, the three must
testify, if available. (Cabang vs. Delfinado, 34 Phil., 291; Tolentino vs. Francisco, 57 Phil., 742). From
the testimony of such witnesses (and of other additional witnesses) the court may form its opinion as
to the genuineness and authenticity of the testament, and the circumstances its due execution.
Now, in the matter of holographic wills, no such guaranties of truth and veracity are demanded, since
as stated, they need no witnesses; provided however, that they are "entirely written, dated, and
signed by the hand of the testator himself." The law, it is reasonable to suppose, regards the
document itself as material proof of authenticity, and as its own safeguard, since it could at any time,
be demonstrated to be or not to be in the hands of the testator himself. "In the probate of a
holographic will" says the New Civil Code, "it shall be necessary that at least one witness who knows
the handwriting and signature of the testator explicitly declare that the will and the signature are in
the handwriting of the testator. If the will is contested, at least three such witnesses shall be required.
In the absence of any such witnesses, (familiar with decedent's handwriting) and if the court deem it
necessary, expert testimony may be resorted to."

The witnesses so presented do not need to have seen the execution of the holographic will. They
may be mistaken in their opinion of the handwriting, or they may deliberately lie in affirming it is in
the testator's hand. However, the oppositor may present other witnesses who also know the
testator's handwriting, or some expert witnesses, who after comparing the will with other writings or
letters of the deceased, have come to the conclusion that such will has not been written by the hand
of the deceased. (Sec. 50, Rule 123). And the court, in view of such contradictory testimony may use
its own visual sense, and decide in the face of the document, whether the will submitted to it has
indeed been written by the testator.
Obviously, when the will itself is not submitted, these means of opposition, and of assessing the
evidence are not available. And then the only guaranty of authenticity3 the testator's handwriting
has disappeared.
Therefore, the question presents itself, may a holographic will be probated upon the testimony of
witnesses who have allegedly seen it and who declare that it was in the handwriting of the testator?
How can the oppositor prove that such document was not in the testator's handwriting? His
witnesses who know testator's handwriting have not examined it. His experts can not testify,
because there is no way to compare the alleged testament with other documents admittedly, or
proven to be, in the testator's hand. The oppositor will, therefore, be caught between the upper
millstone of his lack of knowledge of the will or the form thereof, and the nether millstone of his
inability to prove its falsity. Again the proponent's witnesses may be honest and truthful; but they may
have been shown a faked document, and having no interest to check the authenticity thereof have
taken no pains to examine and compare. Or they may be perjurers boldly testifying, in the
knowledge that none could convict them of perjury, because no one could prove that they have not
"been shown" a document which they believed was in the handwriting of the deceased. Of course,
the competency of such perjured witnesses to testify as to the handwriting could be tested by
exhibiting to them other writings sufficiently similar to those written by the deceased; but what
witness or lawyer would not foresee such a move and prepare for it? His knowledge of the
handwriting established, the witness (or witnesses) could simply stick to his statement: he has seen
and read a document which he believed was in the deceased's handwriting. And the court and the
oppositor would practically be at the mercy of such witness (or witnesses) not only as to the
execution, but also as to the contents of the will. Does the law permit such a situation?
The Rules of Court, (Rule 77) approved in 1940 allow proof (and probate) of a lost or destroyed will
by secondary evidence the testimony of witnesses, in lieu of the original document. Yet such
Rules could not have contemplated holographic wills which could not then be validly made here.
(See also Sec. 46, Rule 123; Art. 830-New Civil Code.)
Could Rule 77 be extended, by analogy, to holographic wills?
Spanish commentators agree that one of the greatest objections to the holographic will is that it may
be lost or stolen4 an implied admission that such loss or theft renders it useless..
This must be so, because the Civil Code requires it to be protocoled and presented to the judge,
(Art. 689) who shall subscribe it and require its identity to be established by the three witnesses who
depose that they have no reasonable doubt that the will was written by the testator (Art. 691). And if
the judge considers that the identity of the will has been proven he shall order that it be filed (Art.
693). All these, imply presentation of the will itself. Art. 692 bears the same implication, to a greater
degree. It requires that the surviving spouse and the legitimate ascendants and descendants be
summoned so that they may make "any statement they may desire to submit with respect to the
authenticity of the will." As it is universally admitted that the holographic will is usually done by the
testator and by himself alone, to prevent others from knowing either its execution or its contents, the

above article 692 could not have the idea of simply permitting such relatives to state whether they
know of the will, but whether in the face of the document itself they think the testator wrote it.
Obviously, this they can't do unless the will itself is presented to the Court and to them.
Undoubtedly, the intention of the law is to give the near relatives the choice of either complying with
the will if they think it authentic, or to oppose it, if they think it spurious. 5 Such purpose is frustrated
when the document is not presented for their examination. If it be argued that such choice is not
essential, because anyway the relatives may oppose, the answer is that their opposition will be at a
distinct disadvantage, and they have the right and privilege to comply with the will, if genuine, a right
which they should not be denied by withholding inspection thereof from them.
We find confirmation of these ideas--about exhibition of the document itself--in the decision of the
Supreme Court of Spain of June 5, 1925, which denied protocolization or probate to a document
containing testamentary dispositions in the handwriting of the deceased, but apparently
mutilated, the signature and some words having been torn from it. Even in the face of allegations
and testimonial evidence (which was controverted), ascribing the mutilation to the opponents of the
will. The aforesaid tribunal declared that, in accordance with the provision of the Civil Code
(Spanish) the will itself, whole and unmutilated, must be presented; otherwise, it shall produce no
effect.
Considerando que sentado lo anterior, y estableciendose en el parrafo segundo del articulo
688 del Codigo civil, que para que sea valido el testamento olografo debera estar escrito
todo el y firmado por testador, con expression del ao, mes y dia en que se otorque, resulta
evidente que para la validez y eficacia de esos testamentos, no basta la demostracion mas
o menos cumplida de que cuando se otorgaron se Ilenaron todos esos requisitos, sino que
de la expresada redaccion el precepto legal, y por el tiempo en que el verbo se emplea,
se desprende la necesidad de que el documento se encuentre en dichas condiciones en el
momento de ser presentado a la Autoridad competente, para au adveracion y
protocolizacion; y como consecuencia ineludible de ello, forzoso es affirmar que el de autos
carece de validez y aficacia, por no estarfirmado por el testador, cualquiera que sea la causa
de la falta de firma, y sin perjuicio de las acciones que puedan ejercitar los perjudicados,
bien para pedir indemnizacion por el perjuicio a la persona culpable, si la hubiere, o su
castigo en via criminal si procediere, por constituir dicha omision un defecto
insubsanable . . . .
This holding aligns with the ideas on holographic wills in the Fuero Juzgo, admittedly the basis of the
Spanish Civil Code provisions on the matter.6
PRECEDENTES LEGALES--Fuero Juzgo, libro segundo, titulo V, ley 15--E depues que los
herederos e sus fijos ovieren esta manda, fasta ... annos muestrenla al obispo de la tierra, o
al juez fasta VI meses y el obispo o el juez tomen otros tales tres escritos, que fuesen
fechos por su mano daquel que fizo la manda; e por aquellos escriptos, si semjara la letra
de la manda, sea confirmada la manda. E depues que todo esto fuere connoscido, el obispo
o el juez, o otras testimonios confirmen el escripto de la manda otra vez, y en esta manera
vala la manda. (Art. 689, Scaevola--Codigo Civil.)
(According to the Fuero above, the will itself must be compared with specimens of the testators
handwriting.)
All of which can only mean: the courts will not distribute the property of the deceased in accordance
with his holographic will, unless they are shown his handwriting and signature. 7

Parenthetically, it may be added that even the French Civil Law considers the loss of the holographic
will to be fatal. (Planiol y Ripert, Derecho Civil Frances, traduccion por Diaz Cruz, 1946, Tomo V,
page 555).
Taking all the above circumstances together, we reach the conclusion that the execution and the
contents of a lost or destroyed holographic will may not be proved by the bare testimony of
witnesses who have seen and/or read such will. 8
Under the provisions of Art. 838 of the New Civil Code, we are empowered to adopt this opinion as a
Rule of Court for the allowance of such holographic wills. We hesitate, however, to make this Rule
decisive of this controversy, simultaneously with its promulgation. Anyway, decision of the appeal
may rest on the sufficiency, rather the insufficiency, of the evidence presented by petitioner Fausto
E. Gan.
At this point, before proceeding further, it might be convenient to explain why, unlike holographic
wills, ordinary wills may be proved by testimonial evidence when lost or destroyed. The difference
lies in the nature of the wills. In the first, the only guarantee of authenticity is the handwriting itself; in
the second, the testimony of the subscribing or instrumental witnesses (and of the notary, now). The
loss of the holographic will entails the loss of the only medium of proof; if the ordinary will is lost, the
subscribing witnesses are available to authenticate.
In the case of ordinary wills, it is quite hard to convince three witnesses (four with the notary)
deliberately to lie. And then their lies could be checked and exposed, their whereabouts and acts on
the particular day, the likelihood that they would be called by the testator, their intimacy with the
testator, etc. And if they were intimates or trusted friends of the testator they are not likely to end
themselves to any fraudulent scheme to distort his wishes. Last but not least, they can not receive
anything on account of the will.
Whereas in the case of holographic wills, if oral testimony were admissible9 only one man could
engineer the fraud this way: after making a clever or passable imitation of the handwriting and
signature of the deceased, he may contrive to let three honest and credible witnesses see and read
the forgery; and the latter, having no interest, could easily fall for it, and in court they would in all
good faith affirm its genuineness and authenticity. The will having been lost the forger may have
purposely destroyed it in an "accident" the oppositors have no way to expose the trick and the
error, because the document itself is not at hand. And considering that the holographic will may
consist of two or three pages, and only one of them need be signed, the substitution of the unsigned
pages, which may be the most important ones, may go undetected.
If testimonial evidence of holographic wills be permitted, one more objectionable feature feasibility
of forgery would be added to the several objections to this kind of wills listed by Castan, Sanchez
Roman and Valverde and other well-known Spanish Commentators and teachers of Civil Law.10
One more fundamental difference: in the case of a lost will, the three subscribing witnesses would be
testifying to a fact which they saw, namely the act of the testator of subscribing the will; whereas in
the case of a lost holographic will, the witnesses would testify as to their opinion of the handwriting
which they allegedly saw, an opinion which can not be tested in court, nor directly contradicted by
the oppositors, because the handwriting itself is not at hand.
Turning now to the evidence presented by the petitioner, we find ourselves sharing the trial judge's
disbelief. In addition to the dubious circumstances described in the appealed decision, we find it hard
to believe that the deceased should show her will precisely to relatives who had received nothing
from it: Socorro Olarte and Primitivo Reyes. These could pester her into amending her will to give

them a share, or threaten to reveal its execution to her husband Ildefonso Yap. And this leads to
another point: if she wanted so much to conceal the will from her husband, why did she not entrust it
to her beneficiaries? Opportunity to do so was not lacking: for instance, her husband's trip to Davao,
a few days after the alleged execution of the will.
In fine, even if oral testimony were admissible to establish and probate a lost holographic will, we
think the evidence submitted by herein petitioner is so tainted with improbabilities and
inconsistencies that it fails to measure up to that "clear and distinct" proof required by Rule 77, sec.
6.11
Wherefore, the rejection of the alleged will must be sustained.
Judgment affirmed, with costs against petitioner.
Paras, C. J., Padilla, Montemayor, Reyes, A., Bautista Angelo, Concepcion, Reyes, J. B. L.,
Endencia and Felix, JJ., concur.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-14003

August 5, 1960

FEDERICO AZAOLA, petitioner-appellant,

vs.
CESARIO SINGSON, oppositor-appellee.
F. Lavides and L.B. Alcuaz for appellant.
Vicente J. Cuna and P.S. Singson for appellee.
REYES, J.B.L., J.:
This appeal, taken on points of law from a decision rendered on 15 January 1958 by the Court of
First Instance of Quezon City in its Special Proceedings No. Q-2640, involves the determination of
the quantity of evidence required for the probate of a holographic will.
The established facts are thus summarized in the decision appealed from (Rec. App. pp. 22-24):
"Briefly speaking, the following facts were established by the petitioner; that on September 9,
1957, Fortunata S. Vda. de Yance died at 13 Luskot, Quezon City, known to be the last
residence of said testatrix; that Francisco Azaola, petitioner herein for probate of the
holographic will, submitted the said holographic will (Exh. C) whereby Maria Milagros Azaola
was made the sole heir as against the nephew of deceased Cesario Singson; that witness
Francisco Azaola testified that he saw the holographic will (Exh. C) one month, more or less,
before the death of the testatrix, as the same was handed to him and his wife; that the
witness testified also that he recognized all the signatures appearing in the holographic will
(Exh. C) as the handwriting of the testatrix and to reinforce said statement, witness
presented the mortgage (Exh. E), the special power of the attorney (Exh. F), and the general
power of attorney (Exh. F-1), besides the deeds of sale (Exhs. G and G-1) including an

affidavit (Exh. G-2), and that there were further exhibited in court two residence certificates
(Exhs. H and H-1) to show the signatures of the testatrix, for comparison purposes; that said
witness, Azaola, testified that the penmanship appearing in the aforesaid documentary
evidence is in the handwriting of the testatrix as well as the signatures appearing in the
aforesaid documentary evidence is in the handwriting of the testatrix as well as the
signatures appearing therein are the signatures of the testatrix; that said witness, in answer
to a question of his counsel admitted that the holographic will was handed to him by the
testatrix. "apparently it must have been written by her" (t.s.n., p. 11). However, on page 16 on
the same transcript of the stenographic notes, when the same witness was asked by counsel
if he was familiar with the penmanship and handwriting of the deceased Fortunata Vda. de
Yance, he answered positively in the affirmative and when he was asked again whether the
penmanship referred to in the previous answer as appearing in the holographic will (Exh. C)
was hers (testatrix'), he answered, "I would definitely say it is hers"; that it was also
established in the proceedings that the assessed value of the property of the deceased in
Luskot, Quezon City, is in the amount of P7,000.00.
The opposition to the probate was on the ground that (1) the execution of the will was procured by
undue and improper pressure and influence on the part of the petitioner and his wife, and (2) that the
testatrix did not seriously intend the instrument to be her last will, and that the same was actually
written either on the 5th or 6th day of August 1957 and not on November 20, 1956 as appears on the
will.
The probate was denied on the ground that under Article 811 of the Civil Code, the proponent must
present three witnesses who could declare that the will and the signature are in the writing of the
testatrix, the probate being contested; and because the lone witness presented by the proponent
"did not prove sufficiently that the body of the will was written in the handwriting of the testatrix."
The proponent appealed, urging: first, that he was not bound to produce more than one witness
because the will's authenticity was not questioned; and second, that Article 811 does not mandatorily
require the production of three witnesses to identify the handwriting and signature of a holographic
will, even if its authenticity should be denied by the adverse party.
Article 811 of the Civil Code of the Philippines is to the following effect:
ART. 811. In the probate of a holographic will, it shall be necessary that at least one witness
who knows the handwriting and signature of the testator explicitly declare that the will and
the signature are in the handwriting of the testator. If the will is contested, at least three of
such witnesses shall be required.
In the absence of any competent witnesses referred to in the preceding paragraph, and if the
court deems it necessary, expert testimony may be resorted to. (691a).
We agree with the appellant that since the authenticity of the will was not contested, he was not
required to produce more than one witness; but even if the genuineness of the holographic will were
contested, we are of the opinion that Article 811 of our present Civil Code can not be interpreted as
to require the compulsory presentation of three witnesses to identify the handwriting of the testator,
under penalty of having the probate denied. Since no witness may have been present at the
execution of a holographic will, none being required by law (Art. 810, new Civil Code), it becomes
obvious that the existence of witness possessing the requisite qualifications is a matter beyond the
control of the proponent. For it is not merely a question of finding and producing any three
witnesses; they must be witnesses "who know the handwriting and signature of the testator" and
who can declare (truthfully, of course, even if the law does not so express) "that the will and the

signature are in the handwriting of the testator". There may be no available witness of the testator's
hand; or even if so familiarized, the witnesses may be unwilling to give a positive opinion.
Compliance with the rule of paragraph 1 of Article 811 may thus become an impossibility. That is
evidently the reason why the second paragraph of Article 811 prescribes that
in the absence of any competent witness referred to in the preceding paragraph, and if the
court deems it necessary, expert testimony may be resorted to.
As can be seen, 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.
It may be true that the rule of this article (requiring that three witnesses be presented if the will is
contested and only one if no contest is had) was derived from the rule established for ordinary
testaments (cf. Cabang vs. Delfinado, 45 Phil., 291; Tolentino vs. Francisco, 57 Phil., 742). But it can
not be ignored that the requirement can be considered mandatory only in the case of ordinary
testaments, precisely because the presence of at least three witnesses at the execution of ordinary
wills is made by law essential to their validity (Art. 805). Where the will is holographic, no witness
need be present (Art. 10), and the rule requiring production of three witnesses must be deemed
merely permissive if absurd results are to be avoided.
Again, under Article 811, the resort to expert evidence is conditioned by the words "if the Court deem
it necessary", which reveal that 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 ill 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.
Commenting on analogous provisions of Article 691 of the Spanish Civil Code of 1889, the noted
Commentator, Mucuis Scaevola (Vol. 12, 2nd Ed., p.421), sagely remarks:
La manera como esta concebida la redaccion del ultimo apartado de dicho precepto induce
la conclusion de que siempre o por lo menos, en la mayor parte de los casos, el Juez debe
acudir al criterio pericial para que le ilustre acerca de la autenticidad del testamento
olografo, aunque ya esten insertas en los autos del expediente las declaraciones testificales.
La prudencia con que el Juez debe de proceder en resoluciones de transcendencia asi lo
exige, y la indole delicada y peligrosa del testamento olografo lo hace necesario para mayor
garantia de todos los interes comprometidos en aquel.
En efecto, el cotejo pericial de letras puede ser una confirmacion facultativa del dicho
profano de los testigos y un modo de desvanecer las ultimas dudas que pudieran ocurrir al
Juez acerca de la autenticidad que trata de averigaur y declarar. Para eso se ha escrito la
frase del citado ultimo apartado, (siempre que el Juez lo estime conveniente), haya habido o
no testigos y dudaran o no estos respecto de los extremos por que son preguntados.
El arbitrio judicial en este caso debe formarse con independencia de los sucesos y de su
significacion, para responder debidamente de las resoluciones que haya de dictar.

And because the law leaves it to the trial court if experts are still needed, no unfavourable inference
can be drawn from a party's failure to offer expert evidence, until and unless the court expresses
dissatisfaction with the testimony of the lay witnesses.
Our conclusion is that the rule of the first paragraph of Article 811 of the Civil Code is merely
directory and is not mandatory.
Considering, however, that this is the first occasion in which this Court has been called upon to
construe the import of said article, the interest of justice would be better served, in our opinion, by
giving the parties ample opportunity to adduce additional evidence, including expert witnesses,
should the Court deem them necessary.
In view of the foregoing, the decision appealed from is set aside, and the records ordered remanded
to the Court of origin, with instructions to hold a new trial in conformity with this opinion. But evidence
already on record shall not be retaken. No costs.
Bengzon, Padilla, Bautista Angelo, Labrador, Concepcion, Barrera and Gutierrez David, JJ., concur.

The Lawphil Project - Arellano Law Foundation

Manila
FIRST DIVISION
G.R. No. L-40207 September 28, 1984
ROSA K. KALAW, petitioner,
vs.
HON. JUDGE BENJAMIN RELOVA, Presiding Judge of the CFI of Batangas, Branch VI, Lipa
City, and GREGORIO K. KALAW, respondents.
Leandro H. Fernandez for petitioner.
Antonio Quintos and Jose M. Yacat for respondents.

MELENCIO-HERRERA, J.:
On September 1, 1971, private respondent GREGORIO K. KALAW, claiming to be the sole heir of
his deceased sister, Natividad K. Kalaw, filed a petition before the Court of First Instance of
Batangas, Branch VI, Lipa City, for the probate of her holographic Will executed on December 24,
1968.
The holographic Will reads in full as follows:
My Last will and Testament

In the name of God, Amen.

I Natividad K. Kalaw Filipino 63years of age, single, and a resident of Lipa City, being of sound and
disposing mind and memory, do hereby declare thus to be my last will and testament.
1. It is my will that I'll be burried in the cemetery of the catholic church of Lipa City. In accordance
with the rights of said Church, and that my executrix hereinafter named provide and erect at the
expose of my state a suitable monument to perpetuate my memory.
xxx xxx xxx
The holographic Will, as first written, named ROSA K. Kalaw, a sister of the testatrix as her sole heir.
Hence, on November 10, 1971, petitioner ROSA K. Kalaw opposed probate alleging, in substance,
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.
After trial, respondent Judge denied probate in an Order, dated September 3, 197 3, reading in part:
The document Exhibit "C" was submitted to the National Bureau of Investigation for
examination. The NBI reported that the handwriting, the signature, the insertions
and/or additions and the initial were made by one and the same person.
Consequently, Exhibit "C" was the handwriting of the decedent, Natividad K. Kalaw.
The only question is whether the win, Exhibit 'C', should be admitted to probate
although the alterations and/or insertions or additions above-mentioned were not
authenticated by the full signature of the testatrix pursuant to Art. 814 of the Civil
Code. The petitioner contends that the oppositors are estopped to assert the
provision of Art. 814 on the ground that they themselves agreed thru their counsel to
submit the Document to the NBI FOR EXAMINATIONS. This is untenable. The
parties did not agree, nor was it impliedly understood, that the oppositors would be in
estoppel.
The Court finds, therefore, that the provision of Article 814 of the Civil Code is
applicable to Exhibit "C". Finding the insertions, alterations and/or additions in Exhibit
"C" not to be authenticated by the full signature of the testatrix Natividad K. Kalaw,
the Court will deny the admission to probate of Exhibit "C".
WHEREFORE, the petition to probate Exhibit "C" as the holographic will of Natividad
K. Kalaw is hereby denied.
SO ORDERED.

From that Order, GREGORIO moved for reconsideration arguing that since the alterations and/or
insertions were the testatrix, the denial to probate of her holographic Will would be contrary to her
right of testamentary disposition. Reconsideration was denied in an Order, dated November 2, 1973,
on the ground that "Article 814 of the Civil Code being , clear and explicit, (it) requires no necessity
for interpretation."
From that Order, dated September 3, 1973, denying probate, and the Order dated November 2,
1973 denying reconsideration, ROSA filed this Petition for Review on certiorari on the sole legal
question of whether or not theoriginal 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 her as sole heir.
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. 1 Manresa gave
an Identical commentary when he said "la omision de la salvedad no anula el testamento, segun la regla de jurisprudencia establecida en la
sentencia de 4 de Abril de 1895." 2

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. As Manresa had
stated in his commentary on Article 688 of the Spanish Civil Code, whence Article 814 of the new
Civil Code was derived:
... No infringe lo dispuesto en este articulo del Codigo (el 688) la sentencia que no
declara la nulidad de un testamento olografo que contenga palabras tachadas,
enmendadas o entre renglones no salvadas por el testador bajo su firnia segun
previene el parrafo tercero del mismo, porque, en realidad, tal omision solo puede
afectar a la validez o eficacia de tales palabras, y nunca al testamento mismo, ya por
estar esa disposicion en parrafo aparte de aquel que determine las condiciones
necesarias para la validez del testamento olografo, ya porque, de admitir lo
contrario, se Ilegaria al absurdo de que pequefias enmiendas no salvadas, que en
nada afectasen a la parte esencial y respectiva del testamento, vinieran a anular
este, y ya porque el precepto contenido en dicho parrafo ha de entenderse en
perfecta armonia y congruencia con el art. 26 de la ley del Notariado que declara
nulas las adiciones apostillas entrerrenglonados, raspaduras y tachados en las
escrituras matrices, siempre que no se salven en la forma prevenida, paro no el
documento que las contenga, y con mayor motivo cuando las palabras
enmendadas, tachadas, o entrerrenglonadas no tengan importancia ni susciten duda

alguna acerca del pensamiento del testador, o constituyan meros accidentes de

ortografia o de purez escrituraria, sin trascendencia alguna(l).
Mas para que sea aplicable la doctrina de excepcion contenida en este ultimo
fallo, es preciso que las tachaduras, enmiendas o entrerrenglonados sin salvar saan
de pala bras que no afecter4 alteren ni uarien de modo substancial la express
voluntad del testador manifiesta en el documento. Asi lo advierte la sentencia de 29
de Noviembre de 1916, que declara nulo un testamento olografo por no estar
salvada por el testador la enmienda del guarismo ultimo del ao en que fue
extendido 3(Emphasis ours).
WHEREFORE, this Petition is hereby dismissed and the Decision of respondent Judge, dated
September 3, 1973, is hereby affirmed in toto. No costs.
SO ORDERED.
Plana, Gutierrez, Jr. and De la Fuente, JJ., concur.
Relova, J., took no part.

Separate Opinions

TEEHANKEE, J., concurring:

I concur. Rosa, having appealed to this Court on a sole question of law, is bound by the trial court's
factual finding that the peculiar alterations in the holographic will crossing out Rosa's name and
instead inserting her brother Gregorio's name as sole heir and "sole executrix" were made by the
testatrix in her own handwriting. (I find it peculiar that the testatrix who was obviously an educated
person would unthinkingly make such crude alterations instead of consulting her lawyer and writing
an entirely new holographic wig in order to avoid any doubts as to her change of heir. It should be
noted that the first alteration crossing out "sister Rosa K. Kalaw" and inserting "brother Gregorio
Kalaw" as sole heir is not even initialed by the testatrix. Only the second alteration crossing out
"sister Rosa K. Kalaw" and inserting "brother Gregorio Kalaw" as "sole executrix" is initialed.)
Probate of the radically altered will replacing Gregorio for Rosa as sole heir is properly denied, since
the same was not duly authenticated by the full signature of the executrix as mandatorily required by
Article 814 of the Civil Code. The original unaltered will naming Rosa as sole heir cannot, however,
be given effect in view of the trial court's factual finding that the testatrix had by her own handwriting
substituted Gregorio for Rosa, so that there is no longer any will naming Rosa as sole heir. The net
result is that the testatrix left no valid will and both Rosa and Gregorio as her next of kill succeed to
her intestate estate.

Separate Opinions
TEEHANKEE, J., concurring:
I concur. Rosa, having appealed to this Court on a sole question of law, is bound by the trial court's
factual finding that the peculiar alterations in the holographic will crossing out Rosa's name and
instead inserting her brother Gregorio's name as sole heir and "sole executrix" were made by the
testatrix in her own handwriting. (I find it peculiar that the testatrix who was obviously an educated
person would unthinkingly make such crude alterations instead of consulting her lawyer and writing
an entirely new holographic wig in order to avoid any doubts as to her change of heir. It should be
noted that the first alteration crossing out "sister Rosa K. Kalaw" and inserting "brother Gregorio
Kalaw" as sole heir is not even initialed by the testatrix. Only the second alteration crossing out
"sister Rosa K. Kalaw" and inserting "brother Gregorio Kalaw" as "sole executrix" is initialed.)
Probate of the radically altered will replacing Gregorio for Rosa as sole heir is properly denied, since
the same was not duly authenticated by the full signature of the executrix as mandatorily required by
Article 814 of the Civil Code. The original unaltered will naming Rosa as sole heir cannot, however,
be given effect in view of the trial court's factual finding that the testatrix had by her own handwriting
substituted Gregorio for Rosa, so that there is no longer any will naming Rosa as sole heir. The net
result is that the testatrix left no valid will and both Rosa and Gregorio as her next of kill succeed to
her intestate estate.
Footnotes
1 Velasco vs. Lopez, 1 Phil. 720, 725 (1903), citing a Decision of the Supreme Court
of Spain of April 4, 1895.
2 Comentarios al Codigo Civil Espaol, Quinta edicion, Tomo 5, Lib. III Tit. III
Cap. I Art. 688; pag. 483.
3 Ibid.

Republic of the Philippines

SUPREME COURT
Manila
SECOND DIVISION

G.R. No. 106720 September 15, 1994

SPOUSES ROBERTO AND THELMA AJERO, petitioners,
vs.
THE COURT OF APPEALS AND CLEMENTE SAND, respondents.

Miguel D. Larida for petitioners.

Montilla Law Office for private respondent.

PUNO, J.:
This is an appeal by certiorari from the Decision of the Court of
Appeals 1 in CA-G.R. CV No. 22840, dated March 30, 1992, the dispositive portion of which reads;
PREMISES CONSIDERED, the questioned decision of November 19, 1988 of the
trial court is hereby REVERSED and SET ASIDE, and the petition for probate is
hereby DISMISSED. No costs.
The earlier Decision was rendered by the RTC of Quezon City, Branch 94, 2 in Sp. Proc. No.
Q-37171, and the instrument submitted for probate is the holographic will of the late Annie Sand,
who died on November 25, 1982.
In the will, decedent named as devisees, the following: petitioners Roberto and Thelma Ajero, private
respondent Clemente Sand, Meriam S. Arong, Leah Sand, Lilia Sand, Edgar Sand, Fe Sand, Lisa S.
Sand, and Dr. Jose Ajero, Sr., and their children.
On January 20, 1983, petitioners instituted Sp. Proc. No. Q-37171, for allowance of decedent's
holographic will. They alleged that at the time of its execution, she was of sound and disposing mind,
not acting under duress, fraud or undue influence, and was in every respect capacitated to dispose
of her estate by will.
Private respondent opposed the petition on the grounds that: neither the testament's body nor the
signature therein was in decedent's handwriting; it contained alterations and corrections which were
not duly signed by decedent; and, the will was procured by petitioners through improper pressure
and undue influence. The petition was likewise opposed by Dr. Jose Ajero. He contested the
disposition in the will of a house and lot located in Cabadbaran, Agusan Del Norte. He claimed that
said property could not be conveyed by decedent in its entirety, as she was not its sole owner.
Notwithstanding the oppositions, the trial court admitted the decedent's holographic will to probate. It
found, inter alia:
Considering then that the probate proceedings herein must decide only the question
of identity of the will, its due execution and the testamentary capacity of the testatrix,
this probate court finds no reason at all for the disallowance of the will for its failure to
comply with the formalities prescribed by law nor for lack of testamentary capacity of
the testatrix.
For one, no evidence was presented to show that the will in question is different from
the will actually executed by the testatrix. The only objections raised by the
oppositors . . . are that the will was not written in the handwriting of the testatrix
which properly refers to the question of its due execution, and not to the question of
identity of will. No other will was alleged to have been executed by the testatrix other
than the will herein presented. Hence, in the light of the evidence adduced, the

identity of the will presented for probate must be accepted, i.e., the will submitted in
Court must be deemed to be the will actually executed by the testatrix.
xxx xxx xxx
While the fact that it was entirely written, dated and signed in the handwriting of the
testatrix has been disputed, the petitioners, however, have satisfactorily shown in
Court that the holographic will in question was indeed written entirely, dated and
signed in the handwriting of the testatrix. Three (3) witnesses who have convincingly
shown knowledge of the handwriting of the testatrix have been presented and have
explicitly and categorically identified the handwriting with which the holographic will in
question was written to be the genuine handwriting and signature of the testatrix.
Given then the aforesaid evidence, the requirement of the law that the holographic
will be entirely written, dated and signed in the handwriting of the testatrix has been
complied with.
xxx xxx xxx
As to the question of the testamentary capacity of the testratix, (private respondent)
Clemente Sand himself has testified in Court that the testatrix was completely in her
sound mind when he visited her during her birthday celebration in 1981, at or around
which time the holographic will in question was executed by the testatrix. To be of
sound mind, it is sufficient that the testatrix, at the time of making the will, knew
the value of the estate to be disposed of, the proper object of her bounty, and
thecharacter of the testamentary act . . . The will itself shows that the testatrix even
had detailed knowledge of the nature of her estate. She even identified the lot
number and square meters of the lots she had conveyed by will. The objects of her
bounty were likewise identified explicitly. And considering that she had even written a
nursing book which contained the law and jurisprudence on will and succession,
there is more than sufficient showing that she knows the character of the
testamentary act.
In this wise, the question of identity of the will, its due execution and the testamentary
capacity of the testatrix has to be resolved in favor of the allowance of probate of the
will submitted herein.
Likewise, no evidence was presented to show sufficient reason for the disallowance
of herein holographic will. While it was alleged that the said will was procured by
undue and improper pressure and influence on the part of the beneficiary or of some
other person, the evidence adduced have not shown any instance where improper
pressure or influence was exerted on the testatrix. (Private respondent) Clemente
Sand has testified that the testatrix was still alert at the time of the execution of the
will, i.e., at or around the time of her birth anniversary celebration in 1981. It was also
established that she is a very intelligent person and has a mind of her own. Her
independence of character and to some extent, her sense of superiority, which has
been testified to in Court, all show the unlikelihood of her being unduly influenced or
improperly pressured to make the aforesaid will. It must be noted that the undue
influence or improper pressure in question herein only refer to the making of a will
and not as to the specific testamentary provisions therein which is the proper subject
of another proceeding. Hence, under the circumstances, this Court cannot find
convincing reason for the disallowance of the will herein.

Considering then that it is a well-established doctrine in the law on succession that in

case of doubt, testate succession should be preferred over intestate succession, and
the fact that no convincing grounds were presented and proven for the disallowance
of the holographic will of the late Annie Sand, the aforesaid will submitted herein
must be admitted to probate. 3 (Citations omitted.)
On appeal, said Decision was reversed, and the petition for probate of decedent's will was
dismissed. The Court of Appeals found that, "the holographic will fails to meet the requirements for
its validity." 4 It held that the decedent did not comply with Articles 813 and 814 of the New Civil Code,
which read, as follows:
Art. 813: When a number of dispositions appearing in a holographic will are signed
without being dated, and the last disposition has a signature and date, such date
validates the dispositions preceding it, whatever be the time of prior dispositions.
Art. 814: In case of insertion, cancellation, erasure or alteration in a holographic will,
the testator must authenticate the same by his full signature.
It alluded to certain dispositions in the will which were either unsigned and undated, or signed but
not dated. It also found that the erasures, alterations and cancellations made thereon had not been
authenticated by decedent.
Thus, this appeal which is impressed with merit.
Section 9, Rule 76 of the Rules of Court provides that will shall be disallowed in any of the following
cases:
(a) If not executed and attested as required by law;
(b) If the testator was insane, or otherwise mentally incapable to make a will, at the
time of its execution;
(c) If it was executed under duress, or the influence of fear, or threats;
(d) If it was procured by undue and improper pressure and influence, on the part of
the beneficiary, or of some other person for his benefit;
(e) If the signature of the testator was procured by fraud or trick, and he did not
intend that the instrument should be his will at the time of fixing his signature thereto.
In the same vein, Article 839 of the New Civil Code reads:
Art. 839: The will shall be disallowed in any of the following cases;
(1) If the formalities required by law have not been complied with;
(2) If the testator was insane, or otherwise mentally incapable of
making a will, at the time of its execution;
(3) If it was executed through force or under duress, or the influence
of fear, or threats;

(4) If it was procured by undue and improper pressure and influence,

on the part of the beneficiary or of some other person;
(5) If the signature of the testator was procured by fraud;
(6) If the testator acted by mistake or did not intend that the
instrument he signed should be his will at the time of affixing his
signature thereto.
These lists are exclusive; no other grounds can serve to disallow a will. 5 Thus, in a petition to admit a
holographic will to probate, the only issues to be resolved are: (1) whether the instrument submitted is,
indeed, the decedent's last will and testament; (2) whether said will was executed in accordance with the
formalities prescribed by law; (3) whether the decedent had the necessary testamentary capacity at the
time the will was executed; and, (4) whether the execution of the will and its signing were the voluntary
acts of the decedent. 6
In the case at bench, respondent court held that the holographic will of Anne Sand was not executed
in accordance with the formalities prescribed by law. It held that Articles 813 and 814 of the New
Civil Code, ante, were not complied with, hence, it disallowed the probate of said will. This is
erroneous.
We reiterate what we held in Abangan vs. Abangan, 40 Phil. 476, 479 (1919), that:
The object of the solemnities surrounding the execution of wills is to close the door
against bad faith and fraud, to avoid substitution of wills and testaments and to
guaranty their truth and authenticity. Therefore, the laws on this subject should be
interpreted in such a way as to attain these primordial ends. But, on the other hand,
also one must not lose sight of the fact that it is not the object of the law to restrain
and curtail the exercise of the right to make a will. So when an interpretation already
given assures such ends, any other interpretation whatsoever, that adds nothing but
demands more requisites entirely unnecessary, useless and frustrative of the
testator's last will, must be disregarded.
For purposes of probating non-holographic wills, these formal solemnities include the subscription,
attestation, and acknowledgment requirements under Articles 805 and 806 of the New Civil Code.
In the case of holographic wills, on the other hand, what assures authenticity is the requirement that
they be totally autographic or handwritten by the testator himself, 7 as provided under Article 810 of the
New Civil Code, thus:
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. (Emphasis supplied.)
Failure to strictly observe other formalities will not result in the disallowance of a holographic
will that is unquestionably handwritten by the testator.
A reading of Article 813 of the New Civil Code shows that its requirement affects the validity of the
dispositions contained in the holographic will, but not its probate. If the testator fails to sign and date
some of the dispositions, the result is that these dispositions cannot be effectuated. Such failure,
however, does not render the whole testament void.

Likewise, a holographic will can still be admitted to probate, notwithstanding non-compliance with the
provisions of Article 814. In the case of Kalaw vs. Relova 132 SCRA 237 242 (1984), this Court held:
Ordinarily, when a number of erasures, corrections, and interlineations made by the
testator in a holographic Will have 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. Manresa gave an identical commentary when he said
"la omission de la salvedad no anula el testamento, segun la regla de jurisprudencia
establecida en la sentencia de 4 de Abril de 1985." 8 (Citations omitted.)
Thus, unless the unauthenticated alterations, cancellations or insertions were made on the date of
the holographic will or on testator's signature, 9 their presence does not invalidate the will itself. 10 The
lack of authentication will only result in disallowance of such changes.
It is also proper to note that the requirements of authentication of changes and signing and dating of
dispositions appear in provisions (Articles 813 and 814) separate from that which provides for the
necessary conditions for the validity of the holographic will (Article 810). The distinction can be
traced to Articles 678 and 688 of the Spanish Civil Code, from which the present provisions covering
holographic wills are taken. They read as follows:
Art. 678: A will is called holographic when the testator writes it himself in the form and
with the requisites required in Article 688.
Art. 688: Holographic wills may be executed only by persons of full age.
In order that the will be valid it must be drawn on stamped paper corresponding to
the year of its execution, written in its entirety by the testator and signed by him, and
must contain a statement of the year, month and day of its execution.
If it should contain any erased, corrected, or interlined words, the testator must
identify them over his signature.
Foreigners may execute holographic wills in their own language.
This separation and distinction adds support to the interpretation that only the requirements of Article
810 of the New Civil Code and not those found in Articles 813 and 814 of the same Code are
essential to the probate of a holographic will.
The Court of Appeals further held that decedent Annie Sand could not validly dispose of the house
and lot located in Cabadbaran, Agusan del Norte, in its entirety. This is correct and must be affirmed.
As a general rule, courts in probate proceedings are limited to pass only upon the extrinsic validity of
the will sought to be probated. However, in exceptional instances, courts are not powerless to do
what the situation constrains them to do, and pass upon certain provisions of the will. 11 In the case at
bench, decedent herself indubitably stated in her holographic will that the Cabadbaran property is in the
name of her late father, John H. Sand (which led oppositor Dr. Jose Ajero to question her conveyance of
the same in its entirety). Thus, as correctly held by respondent court, she cannot validly dispose of the
whole property, which she shares with her father's other heirs.
IN VIEW WHEREOF, the instant petition is GRANTED. The Decision of the Court of Appeals in CAG.R. CV No. 22840, dated March 30, 1992, is REVERSED and SET ASIDE, except with respect to

the invalidity of the disposition of the entire house and lot in Cabadbaran, Agusan del Norte. The
Decision of the Regional Trial Court of Quezon City, Branch 94 in Sp. Proc. No. Q-37171, dated
November 19, 1988, admitting to probate the holographic will of decedent Annie Sand, is hereby
REINSTATED, with the above qualification as regards the Cabadbaran property. No costs.
SO ORDERED.
Narvasa, C.J., Padilla, Regalado and Mendoza, JJ., concur.

#Footnotes

1 Sixteenth Division, composed of Associate Justices Luis L. Victor (ponente),

Ricardo J. Francisco (chairman), and Pacita Caizares-Nye.
2 Presided by Judge Filemon H. Mendoza.
3 Rollo, pp. 37-39.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
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.
Philip M. Alo and Crispin M. Menchavez for petitioners.
Nicolas Jumapao for respondents.
REYES, J.B.L., J.:
Appeal by Paula de la Cerna and others from a decision of the Court of Appeals, Sixth Division
(C.A.-G.R. No. 23763-R) reversing that of the Court of First Instance of Cebu (Civ. Case No. R-3819)
and ordering the dismissal of an action for partition.
The factual background appears in the following portion of the decision of the Court of Appeals
(Petition, Annex A, pp. 2-4):
It appears that on May 9, 1939, the spouses, Bernabe de la Serna and Gervasia Rebaca,
executed a joint last will and testament in the local dialect whereby they willed that "our two
parcels of land acquired during our marriage together with all improvements thereon shall be
given to Manuela Rebaca, our niece, whom we have nurtured since childhood, because God

did not give us any child in our union, Manuela Rebaca being married to Nicolas Potot", and
that "while each of the testators is yet living, he or she will continue to enjoy the fruits of the
two lands aforementioned", the said two parcels of land being covered by Tax No. 4676 and
Tax No. 6677, both situated in sitio Bucao, barrio Lugo, municipality of Borbon, province of
Cebu. Bernabe dela Serna died on August 30, 1939, and the aforesaid will was submitted to
probate by said Gervasia and Manuela before the Court of First Instance of Cebu which,
after due publication as required by law and there being no opposition, heard the evidence,
and, by Order of October 31, 1939; in Special Proceedings No. 499, "declara legalizado el
documento Exhibit A como el testamento y ultima voluntad del finado Bernabe de la Serna
con derecho por parte du su viuda superstite Gervasia Rebaca y otra testadora al propio
tiempo segun el Exhibit A de gozar de los frutos de los terranos descritos en dicho
documents; y habido consideracion de la cuantia de dichos bienes, se decreta la distribucion
sumaria de los mismos en favor de la logataria universal Manuela Rebaca de Potot previa
prestacion por parte de la misma de una fianza en la sum de P500.00 para responder de
cualesquiera reclamaciones que se presentare contra los bienes del finado Bernabe de la
Serna de los aos desde esta fecha" (Act Esp. 499, Testamentaria Finado Bernabe de la
Serna) Upon the death of Gervasia Rebaca on October 14, 1952, another petition for the
probate of the same will insofar as Gervasia was concerned was filed on November 6, 1952,
being Special Proceedings No. 1016-R of the same Court of First Instance of Cebu, but for
failure of the petitioner, Manuela R. Potot and her attorney, Manuel Potot to appear, for the
hearing of said petition, the case was dismissed on March 30, 1954 Spec. Proc. No. 1016-R,
In the matter of the Probate of the Will of Gervasia Rebaca).
The Court of First Instance ordered the petition heard and declared the testament null and void, for
being executed contrary to the prohibition of joint wills in the Civil Code (Art. 669, Civil Code of 1889
and Art. 818, Civil Code of the Philippines); but on appeal by the testamentary heir, the Court of
Appeals reversed, on the ground that the decree of probate in 1939 was issued by a court of probate
jurisdiction and conclusive on the due execution of the testament. Further, the Court of Appeals
declared that:
... . It is true the law (Art. 669, old Civil Code; Art. 818, new Civil Code). prohibits the making
of a will jointly by two or more persons either for their reciprocal benefit or for the benefit of a
third person. However, this form of will has long been sanctioned by use, and the same has
continued to be used; and when, as in the present case, one such joint last will and
testament has been admitted to probate by final order of a Court of competent jurisdiction,
there seems to be no alternative except to give effect to the provisions thereof that are not
contrary to law, as was done in the case of Macrohon vs. Saavedra, 51 Phil. 267, wherein
our Supreme Court gave effect to the provisions of the joint will therein mentioned, saying,
"assuming that the joint will in question is valid."
Whence this appeal by the heirs intestate of the deceased husband, Bernabe de la Cerna.
The appealed decision correctly held that the final decree of probate, entered in 1939 by the Court of
First Instance of Cebu (when the testator, Bernabe de la Cerna, died), has conclusive effect as to his
last will and testament despite the fact that even then the Civil Code already decreed the invalidity of
joint wills, whether in favor of the joint testators, reciprocally, or in favor of a third party (Art. 669, old
Civil Code). The error thus committed by the probate court was an error of law, that should have
been corrected by appeal, but which did not affect the jurisdiction of the probate court, nor the
conclusive effect of its final decision, however erroneous. A final judgment rendered on a petition for

the probate of a will is binding upon the whole world (Manalo vs. Paredes, 47 Phil. 938; In re Estates
of Johnson, 39 Phil. 156); 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. Interest rei
publicae ut finis set litium (Dy Cay vs. Crossfield, 38 Phil, 521, and other cases cited in 2 Moran,
Comments on the Rules of Court (1963 Ed., p. 322).
Petitioners, as heirs and successors of the late Bernabe de la Cerna, are concluded by the 1939
decree admitting his will to probate. The contention that being void the will cannot be validated,
overlooks that the ultimate decision on Whether an act is valid or void rests with the courts, and here
they have spoken with finality when the will was probated in 1939. On this court, the dismissal of
their action for partition was correct.
But the Court of Appeals should have taken into account also, to avoid future misunderstanding, that
the probate decree in 1989 could only affect the share of the deceased husband, Bernabe de la
Cerna. It could not include the disposition of the share of the wife, Gervasia Rebaca, who was then
still alive, and over whose interest in the conjugal properties the probate court acquired no
jurisdiction, precisely because her estate could not then be in issue. Be it remembered that prior to
the new Civil Code, a will could not be probated during the testator's lifetime.
It follows that the validity of the joint will, in so far as the estate of the wife was concerned, must be,
on her death, reexamined and adjudicated de novo, since a joint will is considered a separate will of
each testator. Thus regarded, the holding of the court of First Instance of Cebu that the joint will is
one prohibited by law was correct as to the participation of the deceased Gervasia Rebaca in the
properties in question, for the reasons extensively discussed in our decision in Bilbao vs. Bilbao, 87
Phil. 144, that explained the previous holding in Macrohon vs. Saavedra, 51 Phil. 267.
Therefore, the undivided interest of Gervasia Rebaca should pass upon her death to her heirs
intestate, and not exclusively to the testamentary heir, unless some other valid will in her favor is
shown to exist, or unless she be the only heir intestate of said Gervasia.
It is unnecessary to emphasize that the fact that joint wills should be in common usage could not
make them valid when our Civil Codes consistently invalidated them, because laws are only
repealed by other subsequent laws, and no usage to the contrary may prevail against their
observance (Art. 5, Civ. Code of 1889; Art. 7, Civil Code of the Philippines of 1950).
WITH THE FOREGOING MODIFICATION, the judgment of the Court of Appeals in CA-G.R. No.
23763-R is affirmed. No Costs.
Bengzon, C.J., Bautista, Angelo, Concepcion, Barrera, Paredes, Dizon Regala, Makalintal,
Bengzon, J.P., and Zaldivar, JJ., concur.

Republic of the Philippines

SUPREME COURT
Manila
FIRST DIVISION

G.R. No. L-37453 May 25, 1979

RIZALINA GABRIEL GONZALES, petitioner,
vs.
HONORABLE COURT OF APPEALS and LUTGARDA SANTIAGO, respondents.
Francisco D. Rilloraza, Jr. for petitioners.
Angel A. Sison for private respondent.

GUERRERO, J.:
This is a petition for review of the decision of the Court of Appeals, First Division, 1 promulgated on
May 4, 1973 in CA G.R. No. 36523-R which reversed the decision of the Court of First Instance of Rizal
dated December 15, 1964 and allowed the probate of the last will and testament of the deceased Isabel
Gabriel. *
It appears that on June 24, 1961, herein private respondent Lutgarda Santiago filed a petition with
the Court of First Instance of Rizal docketed as Special Proceedings No. 3617, for the probate of a
will alleged to have been executed by the deceased Isabel Gabriel and designating therein petitioner
as the principal beneficiary and executrix.
There is no dispute in the records that the late Isabel Andres Gabriel died as a widow and without
issue in the municipality of Navotas, province of Rizal her place of residence, on June 7, 1961 at the
age of eighty-five (85), having been born in 1876. It is likewise not controverted that herein private
respondent Lutgarda Santiago and petitioner Rizalina Gabriel Gonzales are nieces of the deceased,
and that private respondent, with her husband and children, lived with the deceased at the latters
residence prior an- d up to the time of her death.
The will submitted for probate, Exhibit "F", which is typewritten and in Tagalog, appears to have been
executed in Manila on the 15th day of April, 1961, or barely two (2) months prior to the death of
Isabel Gabriel. It consists of five (5) pages, including the pages whereon the attestation clause and
the acknowledgment of the notary public were written. The signatures of the deceased Isabel
Gabriel appear at the end of the will on page four and at the left margin of all the pages. The
attestation clause, which is found on page four, reads as follows:
PATUNAY NG MGA SAKSI
Kaming mga nakalagdang mga saksi o testigo na ang aming mga tinitirahan ay
nakasulat sa gawing kanan at kahilira ng aming mga pangalan sa ibaba nito, ay
pagpapatutuo na ipinakilala ipinaalam at ipinahayag sa amin ni Isabel Gabriel na ang
kasulatang ito na binubuo ng Limang Dahon (Five Pages) pati na ang dahong ito, na
siya niyang TESTAMENTO AT HULING HABILIN, ngayong ika 15 ng Abril, 1961, ay
nilagdaan ng nasabing testadora na si Isabel Gabriel ang nasabing testamento sa
ibaba o ilalim ng kasulatan na nasa ika apat na dahon (page four) at nasa itaas ng
patunay naming ito, at sa kaliwang panig ng lahat at bawat dahon (and on the left
hand margin of each and every page), sa harap ng lahat at bawat isa sa amin, at
kami namang mga saksi ay lumagda sa harap ng nasabing testadora, at sa harap ng

lahat at bawat isa sa amin, sa ilalim ng patunay ng mga saksi at sa kaliwang panig
ng lahat at bawa't dahon ng testamentong ito.
At the bottom thereof, under the heading "Pangalan", are written the signatures of Matilde D. Orobia,
Celso D. Gimpaya and Maria R. Gimpaya, and opposite the same, under the heading "Tirahan", are
their respective places of residence, 961 Highway 54, Philamlife, for Miss Orobia, and 12 Dagala St.,
Navotas, Rizal, for the two Gimpayas. Their signatures also appear on the left margin of all the other
pages. The WW is paged by typewritten words as follows: "Unang Dahon" and underneath "(Page
One)", "Ikalawang Dahon" and underneath "(Page Two)", etc., appearing at the top of each page.
The will itself provides that the testatrix desired to be buried in the Catholic Cemetery of Navotas,
Rizal in accordance with the rites of the Roman Catholic Church, all expenses to be paid from her
estate; that all her obligations, if any, be paid; that legacies in specified amounts be given to her
sister, Praxides Gabriel Vda. de Santiago, her brother Santiago Gabriel, and her nephews and
nieces, Benjamin, Salud, Rizalina (herein petitioner), Victoria, Ester, Andres, all surnamed Gabriel,
and Evangeline, Rudyardo Rosa, Andrea, Marcial, Numancia, Verena an surnamed Santiago. To
herein private respondent Lutgarda Santiago, who was described in the will by the testatrix as "aking
mahal na pamangkin na aking pinalaki, inalagaan at minahal na katulad ng isang tunay na anak"
and named as universal heir and executor, were bequeathed all properties and estate, real or
personal already acquired, or to be acquired, in her testatrix name, after satisfying the expenses,
debts and legacies as aforementioned.
The petition was opposed by Rizalina Gabriel Gonzales, herein petitioner, assailing the document
purporting to be the will of the deceased on the following grounds:
1. that the same is not genuine; and in the alternative
2. that the same was not executed and attested as required by law;
3. that, at the time of the alleged execution of the purported wilt the decedent lacked
testamentary capacity due to old age and sickness; and in the second alternative
4. That the purported WW was procured through undue and improper pressure and
influence on the part of the principal beneficiary, and/or of some other person for her
benefit.
Lutgarda Santiago filed her Answer to the Opposition on February 1, 1962. After trial, the court a
quo rendered judgment, the summary and dispositive portions of which read:
Passing in summary upon the grounds advanced by the oppositor, this Court finds:
1. That there is no iota of evidence to support the contentio that the purported will of
the deceased was procured through undue and improper pressure and influence on
the part of the petitioner, or of some other person for her benefit;
2. That there is insufficient evidence to sustain the contention that at the time of the
alleged execution of the purported will, the deceased lacked testamentary capacity
due to old age and sickness;
3. That sufficient and abundant evidence warrants conclusively the fact that the
purported will of the deceased was not executed and attested as required by law;

4. That the evidence is likewise conclusive that the document presented for probate,
Exhibit 'F' is not the purported win allegedly dictated by the deceased, executed and
signed by her, and attested by her three attesting witnesses on April 15, 1961.
WHEREFORE, Exhibit "F", the document presented for probate as the last wig and
testament of the deceased Isabel Gabriel is here by DISALLOWED.
From this judgment of disallowance, Lutgarda Santiago appealed to respondent Court, hence, the
only issue decided on appeal was whether or not the will in question was executed and attested as
required by law. The Court of Appeals, upon consideration of the evidence adduced by both parties,
rendered the decision now under review, holding that the will in question was signed and executed
by the deceased Isabel Gabriel on April 15, 1961 in the presence of the three attesting witnesses,
Matilde Orobia, Celso Gimpaya and Maria Gimpaya, signing and witnessing the document in the
presence of the deceased and of each other as required by law, hence allow ed probate.
Oppositor Rizalina Gabriel Gonzales moved for reconsideration 3 of the aforesaid decision and such
motion was opposed 4 by petitioner-appellant Lutgarda Santiago. Thereafter. parties submitted their
respective Memoranda, 5 and on August 28, 1973, respondent Court, Former Special First Division, by
Resolution 6 denied the motion for reconsideration stating that:
The oppositor-appellee contends that the preponderance of evidence shows that the
supposed last wig and testament of Isabel Gabriel was not executed in accordance
with law because the same was signed on several occasions, that the testatrix did
not sign the will in the presence of all the instrumental witnesses did not sign the will
in the presence of each other.
The resolution of the factual issue raised in the motion for reconsideration hinges on
the appreciation of the evidence. We have carefully re-examined the oral and
documentary evidence of record, There is no reason to alter the findings of fact in the
decision of this Court sought to be set aside. 7
In her petition before this Court, oppositor Rizalina Gabriel Gonzales contends that respondent Court
abused its discretion and/or acted without or in excess of its jurisdiction in reverssing the findings of
fact and conclusions of the trial court. The Court, after deliberating on the petition but without giving
due course resolved, in the Resolution dated Oct. 11, 1973 to require the respondents to comment
thereon, which comment was filed on Nov. 14, 1973. Upon consideration of the allegations, the
issues raised and the arguments adduced in the petition, as well as the Comment 8 of private
respondent thereon, We denied the petition by Resolution on November 26, 1973, 9 the question raised
being factual and for insufficient showing that the findings of fact by respondent Court were unsupported
by substantial evidence.
Subsequently, or on December 17, 1973, petitioner Rim Gabriel Goes fried a Motion for
Reconsideration 10 which private respondent answered by way of her Comment or Opposition 11 filed on
January 15, 1974. A Reply and Rejoinder to Reply followed. Finally, on March 27, 1974, We resolved to
give due course to the petition.
The petitioner in her brief makes the following assignment of errors:
I. The respondent Court of Appeals erred in holding that the document, Exhibit "F" was executed and
attested as required by law when there was absolutely no proof that the three instrumental witnesses
were credible witness

II. The Court of Appeals erred in reversing the finding of the lower court that the preparation and
execution of the win Exhibit "F", was unexpected and coincidental.
III. The Court of Appeals erred in finding that Atty, Paraiso was not previously furnished with the
names and residence certificates of the witnesses as to enable him to type such data into the
document Exhibit "F".
IV. The Court of Appeals erred in holding that the fact that the three typewritten lines under the
typewritten words "Pangalan" and "Tinitirahan" were left blank shows beyond cavil that the three
attesting witnesses were all present in the same occasion.
V. The Court of Appeals erred in reversing the trial court's finding that it was incredible that Isabel
Gabriel could have dictated the wilt Exhibit "F , without any note or document, to Atty. Paraiso.
VI. The Court of Appeals erred in reversing the finding of the trial court that Matilde Orobia was not
physically present when the Will Exhibit "F" was allegedly signed on April 15, 1961 by the deceased
Isabel Gabriel and the other witnesses Celso Gimpaya and Maria Gimpaya.
VII. The Court of Appeals erred in holding that the trial court gave undue importance to the picture
takings as proof that the win was improperly executed.
VIII. The Court of Appeals erred in holding that the grave contradictions, evasions, and
misrepresentations of witnesses (subscribing and notary) presented by the petitioner had been
explained away, and that the trial court erred in rejecting said testimonies.
IX. The Court of Appeals acted in excess of its appellate jurisdiction or has so far departed from the
accepted and usual course of judicial proceedings, as to call for an exercise of the power of
supervision.
X. The Court of Appeals erred in reversing the decision of the trial court and admitting to probate
Exhibit "F", the alleged last will and testament of the deceased Isabel Gabriel.
It will be noted from the above assignments of errors that the same are substantially factual in
character and content. Hence, at the very outset, We must again state the oft-repeated and wellestablished rule that in this jurisdiction, the factual findings of the Court of Appeals are not
reviewable, the same being binding and conclusive on this Court. This rule has been stated and
reiterated in a long line of cases enumerated in Chan vs. CA (L-27488, June 30, 1970, 33 SCRA
737, 743) 12 and Tapas vs. CA (L-22202, February 27; 1976, 69 SCRA 393), 13 and in the more recent
cases of Baptisia vs. Carillo and CA (L32192, July 30, 1976, 72 SCRA 214, 217) and Vda. de Catindig vs.
Heirs of Catalina Roque (L-25777, November 26, 1976, 74 SCRA 83, 88). In the case of Chan vs. CA,
this Court said:
... from Guico v. Mayuga, a 1936 decision, the opinion being penned by the then Justice Recto, it
has been well-settled that the jurisdiction of tills Court in cases brought to us from the Court of
Appeals is limited to reviewing and revising the errors of law imputed to it, its findings of fact being
conclusive. More specifically, in a decision exactly a month later, this Court, speaking through the
then Justice Laurel, it was held that the same principle is applicable, even if the Court of Appeals
was in disagreement with the lower court as to the weight of the evidence with a consequent
reversal of its findings of fact ...

Stated otherwise, findings of facts by the Court of Appeals, when supported by substantive evidence
are not reviewable on appeal by certiorari. Said findings of the appellate court are final and cannot
be disturbed by Us particularly because its premises are borne out by the record or based upon
substantial evidence and what is more, when such findings are correct. Assignments of errors
involving factual issues cannot be ventilated in a review of the decision of the Court of Appeals
because only legal questions may be raised. The Supreme Court is not at liberty to alter or modify
the facts as set forth in the decision of the Court of Appeals sought to be reversed. Where the
findings of the Court of Appeals are contrary to those of the trial court, a minute scrutiny by the
Supreme Court is in order, and resort to duly-proven evidence becomes necessary. The general rule
We have thus stated above is not without some recognized exceptions.
Having laid down the above legal precepts as Our foundation, We now proceed to consider
petitioner's assignments of errors.
Petitioner, in her first assignment, contends that the respondent Court of Appeals erred in holding
that the document, Exhibit "F", was executed and attested as required by law when there was
absolutely no proof that the three instrumental witnesses were credible witnesses. She argues that
the require. ment in Article 806, Civil Code, that the witnesses must be credible is an absolute
requirement which must be complied with before an alleged last will and testament may be admitted
to probate and that to be a credible witness, there must be evidence on record that the witness has a
good standing in his community, or that he is honest and upright, or reputed to be trustworthy and
reliable. According to petitioner, unless the qualifications of the witness are first established, his
testimony may not be favorably considered. Petitioner contends that the term "credible" is not
synonymous with "competent" for a witness may be competent under Article 820 and 821 of the Civil
Code and still not be credible as required by Article 805 of the same Code. It is further urged that the
term "credible" as used in the Civil Code should receive the same settled and well- known meaning it
has under the Naturalization Law, the latter being a kindred legislation with the Civil Code provisions
on wigs with respect to the qualifications of witnesses.
We find no merit to petitioner's first assignment of error. Article 820 of the Civil Code provides the
qualifications of a witness to the execution of wills while Article 821 sets forth the disqualification
from being a witness to a win. These Articles state:
Art. 820. 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 mentioned in article 806 of this Code. "Art. 821. The following are
disqualified from being witnesses to a will:
(1) Any person not domiciled in the Philippines,
(2) Those who have been convicted of falsification of a document, perjury or false
testimony.
Under the law, 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 trustworthythiness and
reliableness, his honesty and uprightness 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. We reject petitioner's contention that it must first

be established in the record the good standing of the witness in the community, his reputation for
trustworthiness and reliableness, his honesty and uprightness, because such attributes are
presumed of the witness unless the contrary is proved otherwise by the opposing party.
We also reject as without merit petitioner's contention that the term "credible" as used in the Civil
Code should be given the same meaning it has under the Naturalization Law where the law is
mandatory that the petition for naturalization must be supported by two character witnesses who
must prove their good standing in the community, reputation for trustworthiness and reliableness,
their honesty and uprightness. The two witnesses in a petition for naturalization are character
witnesses in that being citizens of the Philippines, they personally know the petitioner to be a
resident of the Philippines for the period of time required by the Act and a person of good repute and
morally irreproachable and that said petitioner has in their opinion all the qualifications necessary to
become a citizen of the Philippines and is not in any way disqualified under the provisions of the
Naturalization Law (Section 7, Commonwealth Act No. 473 as amended).
In probate proceedings, the instrumental witnesses are not character witnesses for they merely
attest the execution of a will or testament and affirm the formalities attendant to said execution. And
We agree with the respondent that the rulings laid down in the cases cited by petitioner concerning
character witnesses in naturalization proceedings are not applicable to instrumental witnesses to
wills executed under the Civil Code of the Philippines.
In the case at bar, the finding that each and everyone of the three instrumental witnesses, namely,
Matilde Orobia, Celso Gimpaya and Maria Gimpaya, are competent and credible is satisfactorily
supported by the evidence as found by the respondent Court of Appeals, which findings of fact this
Tribunal is bound to accept and rely upon. Moreover, petitioner has not pointed to any
disqualification of any of the said witnesses, much less has it been shown that anyone of them is
below 18 years of age, of unsound mind, deaf or dumb, or cannot read or write.
It is true that under Article 805 of the New Civil Code, every will, other than a holographic will, must
be subscribed at the end thereof by the testator himself or by the testator's name written by some
other person in his presence, and by his express direction, and attested and subscribed by three or
more credible witnesses in the presence of the testator and of one another, While the petitioner
submits that Article 820 and 821 of the New Civil Code speak of the competency of a witness due to
his qualifications under the first Article and none of the disqualifications under the second Article,
whereas Article 805 requires the attestation of three or more credible witnesses, petitioner concludes
that the term credible requires something more than just being competent and, therefore, a witness
in addition to being competent under Articles 820 and 821 must also be a credible witness under
Article 805.
Petitioner cites American authorities that competency and credibility of a witness are not
synonymous terms and one may be a competent witness and yet not a credible one. She
exacerbates that there is no evidence on record to show that the instrumental witnesses are credible
in themselves, that is, that they are of good standing in the community since one was a family driver
by profession and the second the wife of the driver, a housekeeper. It is true that Celso Gimpaya
was the driver of the testatrix and his wife Maria Gimpaya, merely a housekeeper, and that Matilde
Orobia was a piano teacher to a grandchild of the testatrix But the relation of employer and
employee much less the humble or financial position of a person do not disqualify him to be a
competent testamentary witness. (Molo Pekson and Perez Nable vs. Tanchuco, et al., 100 Phil. 344;
Testate Estate of Raymundo, Off. Gaz., March 18,1941, p. 788).
Private respondent maintains that the qualifications of the three or more credible witnesses
mentioned in Article 805 of the Civil Code are those mentioned in Article 820 of the same Code, this

being obvious from that portion of Article 820 which says "may be Q witness to the execution of a will
mentioned in Article 805 of this Code," and cites authorities that the word "credible" insofar as
witnesses to a will are concerned simply means " competent." Thus, in the case of Suntay vs.
Suntay, 95 Phil. 500, the Supreme Court held that "Granting that a will was duly executed and that it
was in existence at the time of, and not revoked before, the death of the testator, still the provisions
of the lost wig must be clearly and distinctly proved by at least two credible witnesses. 'Credible
witnesses' mean competent witnesses and not those who testify to facts from or upon hearsay.
" emphasissupplied).
In Molo Pekson and Perez Nable vs. Tanchuco, et al., 100 Phil. 344, the Supreme Court held that
"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 win,
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. There is a long line of
authorities on this point, a few of which we may cite:
A 'credible witness is one who is not is not to testify by mental incapacity, crime, or
other cause. Historical Soc of Dauphin County vs. Kelker 74 A. 619, 226 Pix 16, 134
Am. St. Rep. 1010. (Words and Phrases, Vol. 10, p. 340).
As construed by the common law, a 'credible witness' to a will means a 'competent
witness.' Appeal of Clark, 95 A. 517, 114 Me. 105, Ann. Cas. 1917A, 837. (lbid, p.
341).
Expression 'credible witness' in relation to attestation of wins means 'competent
witness that is, one competent under the law to testify to fact of execution of will.
Vernon's Ann. Civ St. art. 8283. Moos vs. First State Bank of Uvalde, Tex . Civ. App.
60 S.W. 2nd 888, 889. (Ibid, p. 342)
The term 'credible', used in the statute of wills requiring that a will shall be attested by
two credible witnesses means competent; witnesses who, at the time of attesting the
will, are legally competent to testify, in a court of justice, to the facts attested by
subscribing the will, the competency being determined as of the date of the execution
of the will and not of the timr it is offered for probate,Smith vs. Goodell 101 N.E. 255,
256, 258 111. 145. (Ibid.)
Credible witnesses as used in the statute relating to wills, means competent
witnesses that is, such persons as are not legally disqualified from testifying in
courts of justice, by reason of mental incapacity, interest, or the commission of
crimes, or other cause excluding them from testifying generally, or rendering them
incompetent in respect of the particular subject matter or in the particular suit. Hill vs.
Chicago Title & Trust co 152 N.E. 545, 546, 322 111. 42. (Ibid. p, 343)
In the strict sense, the competency of a person to be an instrumental witness to a will is determined
by the statute, that is Art. 820 and 821, Civil Code, 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. Thus, in the case ofVda. 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." In fine, We
state the rule that the instrumental witnesses in Order to be competent must be shown to have the
qualifications under Article 820 of the Civil Code and none of the disqualifications under Article 821
and for their testimony to be credible, that is worthy of belief and entitled to credence, it is not
mandatory that evidence be first established on record that the witnesses have a good standing in
the community or that they are honest and upright or reputed to be trustworthy and reliable, for a
person is presumed to be such unless the contrary is established otherwise. In other words, the
instrumental witnesses must be competent and their testimonies must be credible before the court
allows the probate of the will they have attested. We, therefore, reject petitioner's position that it was
fatal for respondent not to have introduced prior and independent proof of the fact that the witnesses
were "credible witnesses that is, that they have a good standing in the community and reputed to be
trustworthy and reliable.
Under the second, third, fourth, fifth, sixth, seventh and eighth assignments of errors, petitioner
disputes the findings of fact of the respondent court in finding that the preparation and execution of
the will was expected and not coincidental, in finding that Atty. Paraiso was not previously furnished
with the names and residence certificates of the witnesses as to enable him to type such data into
the document Exhibit "F", in holding that the fact that the three typewritten lines under the typewritten
words "pangalan" and "tinitirahan" were left blank shows beyond cavil that the three attesting
witnesses were all present in the same occasion, in holding credible that Isabel Gabriel could have
dictated the will without note or document to Atty. Paraiso, in holding that Matilde Orobia was
physically present when the will was signed on April 15, 1961 by the deceased Isabel Gabriel and
the other witnesses Celso Gimpaya and Maria Gimpaya, in holding that the trial court gave undue
importance to the picture takings as proof that the will was improperly executed, and in holding that
the grave contradictions, evasions and misrepresentations of the witnesses (subscribing and notary)
presented by the petitioner had been explained away.
Since the above errors are factual We must repeat what We have previously laid down that the
findings of fact of the appellate court are binding and controlling which We cannot review, subject to
certain exceptions which We win consider and discuss hereinafter. We are convinced that the
appellate court's findings are sufficiently justified and supported by the evidence on record. Thus, the
alleged unnaturalness characterizing the trip of the testatrix to the office of Atty. Paraiso and bringing
all the witnesses without previous appointment for the preparation and execution of the win and that
it was coincidental that Atty. Paraiso was available at the moment impugns the finding of the Court of
Appeals that although Atty. Paraiso admitted the visit of Isabel Gabriel and of her companions to his
office on April 15, 1961 was unexpected as there was no prior appointment with him, but he
explained that he was available for any business transaction on that day and that Isabel Gabriel had
earlier requested him to help her prepare her will. The finding of the appellate court is amply based
on the testimony of Celso Gimpaya that he was not only informed on the morning of the day that he
witnessed the will but that it was the third time when Isabel Gabriel told him that he was going to
witness the making of her will, as well as the testimony of Maria Gimpaya that she was called by her
husband Celso Gimpaya to proceed to Isabel Gabriel's house which was nearby and from said
house, they left in a car to the lawyer's office, which testimonies are recited in the respondent Court's
decision.
The respondent Court further found the following facts: that Celso Gimpaya and his wife Maria
Gimpaya obtained residence certificates a few days before Exhibit "F" was executed. Celso
Gimpaya's residence certificate No. A-5114942 was issued at Navotas, Rizal on April 13, 1961 while
Maria Gimpaya's residence certificate No. A-5114974 was issued also at Navotas, Rizal on April 14,
1961. The respondent Court correctly observed that there was nothing surprising in these facts and
that the securing of these residence certificates two days and one day, respectively, before the

execution of the will on April 15, 1961, far from showing an amazing coincidence, reveals that the
spouses were earlier notified that they would be witnesses to the execution of Isabel Gabriel's will.
We also agree with the respondent Court's conclusion that the excursion to the office of Atty. Paraiso
was planned by the deceased, which conclusion was correctly drawn from the testimony of the
Gimpaya spouses that they started from the Navotas residence of the deceased with a photographer
and Isabel Gabriel herself, then they proceeded by car to Matilde Orobia's house in Philamlife,
Quezon City to fetch her and from there, all the three witnesses (the Gimpayas and Orobia) passed
by a place where Isabel Gabriel stayed for about ten to fifteen minutes at the clinic of Dr. Chikiamco
before they proceeded to Atty. Cipriano Paraiso's office.
It is also evident from the records, as testified to by Atty. Paraiso, that previous to the day that. the
will was executed on April 15, 1961, Isabel Gabriel had requested him to help her in the execution of
her will and that he told her that if she really wanted to execute her will, she should bring with her at
least the Mayor of Navotas, Rizal and a Councilor to be her witnesses and that he (Atty. Paraiso)
wanted a medical certificate from a physician notwithstanding the fact that he believed her to be of
sound and disposition mind. From this evidence, the appellate court rightly concluded, thus: "It is,
therefore, clear that the presence of Isabel Gabriel and her witnesses Matilde Orobia, Celso
Gimpaya and Maria Gimpaya including the photographer in the law office of Atty. Paraiso was not
coincidental as their gathering was pre-arranged by Isabel Gabriel herself."
As to the appellate court's finding that Atty. Paraiso was not previously furnished with the names and
residence certificates of the witnesses as to enable him to type such data into the document Exhibit '
L which the petitioner assails as contradictory and irreconcilable with the statement of the Court that
Atty. Paraiso was handed a list (containing the names of the witnesses and their respective
residence certificates) immediately upon their arrival in the law office by Isabel Gabriel and this was
corroborated by Atty. Paraiso himself who testified that it was only on said occasion that he received
such list from Isabel Gabriel, We cannot agree with petitioner's contention. We find no contradiction
for the, respondent Court held that on the occasion of the will making on April 15, 1961, the list was
given immediately to Atty. Paraiso and that no such list was given the lawyer in any previous
occasion or date prior to April 15, 1961.
But whether Atty. Paraiso was previously furnished with the names and residence certificates of the
witnesses on a prior occasion or on the very occasion and date in April 15, 1961 when the will was
executed, is of no moment for such data appear in the notarial acknowledgment of Notary Public
Cipriano Paraiso, subscribed and sworn to by the witnesses on April 15, 1961 following the
attestation clause duly executed and signed on the same occasion, April 15, 1961. And since Exhibit
"F" is a notarial will duly acknowledged by the testatrix and the witnesses before a notary public, the
same is a public document executed and attested through the intervention of the notary public and
as such public document is evidence of the facts in clear, unequivocal manner therein expressed. It
has in its favor the presumption of regularity. To contradict all these, there must be evidence that is
clear, convincing and more than merely preponderant. (Yturalde vs. Azurin, 28 SCRA 407). We find
no such evidence pointed by petitioner in the case at bar.
Likewise, the conclusion of the Court of Appeals in holding that the fact that the three typewritten
lines under the typewritten words "pangalan ' and "tinitirahan" were left blank shows beyond cavil
that the three attesting witnesses were all present in the same occasion merits Our approval
because tills conclusion is supported and borne out by the evidence found by the appellate court,
thus: "On page 5 of Exhibit "F", beneath the typewritten words "names", "Res. Tax Cert. date issued"
and place issued the only name of Isabel Gabriel with Residence Tax certificate No. A-5113274
issued on February 24, 1961 at Navotas Rizal appears to be in typewritten form while the names,
residence tax certificate numbers, dates and places of issuance of said certificates pertaining to the

three (3) witnesses were personally handwritten by Atty. Paraiso. Again, this coincides with Atty.
Paraiso's even the sale must be made to close relatives; and the seventh was the appointment of
the appellant Santiago as executrix of the will without bond. The technical description of the
properties in paragraph 5 of Exhibit F was not given and the numbers of the certificates of title were
only supplied by Atty. Paraiso. "
It is true that in one disposition, the numbers of the Torrens titles of the properties disposed and the
docket number of a special proceeding are indicated which Atty. Paraiso candidly admitted were
supplied by him, whereupon petitioner contends that it was incredible that Isabel Gabriel could have
dictated the will Exhibit "F" without any note or document to Atty. Paraiso, considering that Isabel
Gabriel was an old and sickly woman more than eighty-one years old and had been suffering from a
brain injury caused by two severe blows at her head and died of terminal cancer a few weeks after
the execution of Exhibit "F". While we can rule that this is a finding of fact which is within the
competency of the respondent appellate court in determining the testamentary capacity of the
testatrix and is, therefore, beyond Our power to revise and review, We nevertheless hold that the
conclusion reached by the Court of Appeals that the testatrix dictated her will without any note or
memorandum appears to be fully supported by the following facts or evidence appearing on record.
Thus, Isabel Gabriel, despite her age, was particularly active in her business affairs as she actively
managed the affairs of the movie business ISABELITA Theater, paying the aparatistas herself until
June 4, 1961, 3 days before her death. She was the widow of the late Eligio Naval, former Governor
of Rizal Province and acted as coadministratrix in the Intestate Estate of her deceased husband
Eligio Naval. The text of the win was in Tagalog, a dialect known and understood by her and in the
light of all the circumstances, We agree with the respondent Court that the testatrix dictated her will
without any note or memorandum, a fact unanimously testified to by the three attesting witnesses
and the notary public himself.
Petitioner's sixth assignment of error is also bereft of merit. The evidence, both testimonial and
documentary is, according to the respondent court, overwhelming that Matilde Orobia was physically
present when the will was signed on April 15, 1961 by the testatrix and the other two witnesses,
Celso Gimpaya and Maria Gimpaya. Such factual finding of the appellate court is very clear, thus:
"On the contrary, the record is replete with proof that Matilde Orobia was physically present when the
will was signed by Isabel Gabriel on April '15, 1961 along with her co-witnesses Celso Gimpaya and
Maria Gimpaya. The trial court's conclusion that Orobia's admission that she gave piano lessons to
the child of the appellant on Wednesdays and Saturdays and that April 15, 1961 happened to be a
Saturday for which reason Orobia could not have been present to witness the will on that day is
purely conjectural. Witness Orobia did not admit having given piano lessons to the appellant's child
every Wednesday and Saturday without fail. It is highly probable that even if April 15, 1961 were a
Saturday, she gave no piano lessons on that day for which reason she could have witnessed the
execution of the will. Orobia spoke of occasions when she missed giving piano lessons and had to
make up for the same. Anyway, her presence at the law office of Atty. Paraiso was in the morning of
April 15, 1961 and there was nothing to preclude her from giving piano lessons on the afternoon of
the same day in Navotas, Rizal."
In addition to the testimony of Matilde Orobia, Celso Gimpaya and Maria Gimpaya that Matilde was
present on April 15, 1961 and that she signed the attestation clause to the will and on the left-hand
margin of each of the pages of the will, the documentary evidence which is the will itself, the
attestation clause and the notarial acknowledgment overwhelmingly and convincingly prove such
fact that Matilde Orobia was present on that day of April 15, 1961 and that she witnessed the will by
signing her name thereon and acknowledged the same before the notary public, Atty. Cipriano P.
Paraiso. The attestation clause which Matilde Orobia signed is the best evidence as to the date of
signing because it preserves in permanent form a recital of all the material facts attending the
execution of the will. This is the very purpose of the attestation clause which is made for the purpose
of preserving in permanent form a record of the facts attending the execution of the will, so that in

case of failure in the memory of the subscribing witnesses, or other casualty they may still be
proved. (Thompson on Wills, 2nd ed., Sec. 132; Leynez vs. Leynez, 68 Phil. 745).
As to the seventh error assigned by petitioner faulting the Court of Appeals in holding that the trial
court gave undue importance to the picture-takings as proof that the win was improperly executed,
We agree with the reasoning of the respondent court that: "Matilde Orobia's Identification of the
photographer as "Cesar Mendoza", contrary to what the other two witnesses (Celso and Maria
Gimpaya) and Atty. Paraiso said that the photographer was Benjamin Cifra, Jr., is at worst a minor
mistake attributable to lapse of time. The law does not require a photographer for the execution and
attestation of the will. The fact that Miss Orobia mistakenly Identified the photographer as Cesar
Mendoza scarcely detracts from her testimony that she was present when the will was signed
because what matters here is not the photographer but the photograph taken which clearly portrays
Matilde Orobia herself, her co-witnesses Celso Gimpaya. " Further, the respondent Court correctly
held: "The trial court gave undue importance to the picture takings, jumping therefrom to the
conclusion that the will was improperly executed. The evidence however, heavily points to only one
occasion of the execution of the will on April 15, 1961 which was witnessed by Matilde Orobia, Celso
Gimpaya and Maria Gimpaya. These witnesses were quite emphatic and positive when they spoke
of this occasion. Hence, their Identification of some photographs wherein they all appeared along
with Isabel Gabriel and Atty. Paraiso was superfluous."
Continuing, the respondent Court declared: "It is true that the second picture-taking was disclosed at
the cross examination of Celso Gimpaya. But this was explained by Atty. Paraiso as a reenactment
of the first incident upon the insistence of Isabel Gabriel. Such reenactment where Matilde Orobia
was admittedly no longer present was wholly unnecessary if not pointless. What was important was
that the will was duly executed and witnessed on the first occasion on April 15, 1961 , " and We
agree with the Court's rationalization in conformity with logic, law and jurisprudence which do not
require picture-taking as one of the legal requisites for the execution or probate of a will.
Petitioner points to alleged grave contradictions, evasions and misrepresentations of witnesses in
their respective testimonies before the trial court. On the other hand, the respondent Court of
Appeals held that said contradictions, evasions and misrepresentations had been explained away.
Such discrepancies as in the description of the typewriter used by Atty. Paraiso which he described
as "elite" which to him meant big letters which are of the type in which the will was typewritten but
which was Identified by witness Jolly Bugarin of the N.B.I. as pica the mistake in mentioning the
name of the photographer by Matilde Orobia to be Cesar Mendoza when actually it was Benjamin
Cifra, Jr. these are indeed unimportant details which could have been affected by the lapse of time
and the treachery of human memory such that by themselves would not alter the probative value of
their testimonies on the true execution of the will, (Pascual vs. dela Cruz, 28 SCRA 421, 424) for it
cannot be expected that the testimony of every person win be Identical and coinciding with each
other with regard to details of an incident and that witnesses are not expected to remember all
details. Human experience teach us "that contradictions of witnesses generally occur in the details of
certain incidents, after a long series of questionings, and far from being an evidence of falsehood
constitute a demonstration of good faith. In as much as not all those who witness an incident are
impressed in like manner, it is but natural that in relating their impressions, they should not agree in
the minor details; hence the contradictions in their testimony." (Lopez vs. Liboro, 81 Phil. 429).
It is urged of Us by the petitioner that the findings of the trial court should not have been disturbed by
the respondent appellate court because the trial court was in a better position to weigh and evaluate
the evidence presented in the course of the trial. As a general rule, petitioner is correct but it is
subject to well-established exceptions. The right of the Court of Appeals to review, alter and reverse
the findings of the trial court where the appellate court, in reviewing the evidence has found that
facts and circumstances of weight and influence have been ignored and overlooked and the

significance of which have been misinterpreted by the trial court, cannot be disputed. Findings of
facts made by trial courts particularly when they are based on conflicting evidence whose evaluation
hinges on questions of credibility of contending witnesses hes peculiarly within the province of trial
courts and generally, the appellate court should not interfere with the same. In the instant case,
however, the Court of Appeals found that the trial court had overlooked and misinterpreted the facts
and circumstances established in the record. Whereas the appellate court said that "Nothing in the
record supports the trial court's unbelief that Isabel Gabriel dictated her will without any note or
document to Atty. Paraiso;" that the trial court's conclusion that Matilde Orobia could not have
witnessed anybody signing the alleged will or that she could not have witnessed Celso Gimpaya and
Maria Gimpaya sign the same or that she witnessed only the deceased signing it, is a conclusion
based not on facts but on inferences; that the trial court gave undue importance to the picturetakings, jumping therefrom to the conclusion that the will was improperly executed and that there is
nothing in the entire record to support the conclusion of the court a quo that the will signing occasion
was a mere coincidence and that Isabel Gabriel made an appointment only with Matilde Orobia to
witness the signing of her will, then it becomes the duty of the appellate court to reverse findings of
fact of the trial court in the exercise of its appellate jurisdiction over the lower courts.
Still the petitioner insists that the case at bar is an exception to the rule that the judgment of the
Court of Appeals is conclusive as to the facts and cannot be reviewed by the Supreme Court. Again
We agree with the petitioner that among the exceptions are: (1) when the conclusion is a finding
grounded entirely on speculations, surmises or conjectures; (2) when the inference is manifestly
mistaken, absurd or impossible; (3) when there is a grave abuse of discretion; (4) when the
presence of each other as required by law. " Specifically, We affirm that on April 15, 1961 the
testatrix Isabel Gabriel, together with Matilde Orobia, Celso Gimpaya and his wife Maria Gimpaya,
and a photographer proceeded in a car to the office of Atty. Cipriano Paraiso at the Bank of P.I.
Building, Manila in the morning of that day; that on the way, Isabel Gabriel obtained a medical
certificate from one Dr. Chikiamko which she gave to Atty. Paraiso upon arriving at the latter's office
and told the lawyer that she wanted her will to be made; that Atty. Paraiso asked Isabel Gabriel to
dictate what she wanted to be written in the will and the attorney wrote down the dictation of Isabel
Gabriel in Tagalog, a language known to and spoken by her; that Atty. Paraiso read back to her what
he wrote as dictated and she affirmed their correctness; the lawyer then typed the will and after
finishing the document, he read it to her and she told him that it was alright; that thereafter, Isabel
Gabriel signed her name at the end of the will in the presence of the three witnesses Matilde Orobia,
Celso Gimpaya and Maria Gimpaya and also at the left-hand margin of each and every page of the
document in the presence also of the said three witnesses; that thereafter Matilde Orobia attested
the will by signing her name at the end of the attestation clause and at the left-hand margin of pages
1, 2, 3 and 5 of the document in the presence of Isabel Gabriel and the other two witnesses, Celso
Gimpaya and Maria Gimpaya; then, Celso Gimpaya signed also the will at the bottom of the
attestation clause and at the left-hand margin of the other pages of the document in the presence of
Isabel Gabriel, Matilde Orobia and Maria Gimpaya; that Maria Gimpaya followed suit, signing her
name at the foot of the attestation clause and at the left-hand margin of every page in the presence
of Isabel Gabriel, Matilde Orobia and Celso Gimpaya; that thereafter, Atty. Paraiso notarized the will
as Page No. 94, Book No. IV, Series of 1961, in his Notarial Register. On the occasion of the
execution and attestation of the will, a photographer took pictures, one Exhibit "G", depicting Matilde
Orobia, the testatrix Isabel Gabriel, Celso Gimpaya, Maria Gimpaya and Atty. Paraiso, taken on said
occasion of the signing of the will, and another, Exhibit "H", showing Matilde Orobia signing
testimony that he had earlier advised Isabel Gabriel to bring with her at least the Mayor and a
Councilor of Navotas, Rizal to be her witnesses for he did not know beforehand the Identities of the
three attesting witnesses until the latter showed up at his law office with Isabel Gabriel on April 15,
1961. Atty. Paraiso's claim which was not controverted that he wrote down in his own hand the date
appearing on page 5 of Exhibit "F" dissipates any lingering doubt that he prepared and ratified the
will on the date in question."

It is also a factual finding of the Court of Appeals in holding that it was credible that Isabel Gabriel
could have dictated the will, Exhibit "F", without any note or document to Atty. Paraiso as against the
contention of petitioner that it was incredible. This ruling of the respondent court is fully supported by
the evidence on record as stated in the decision under review, thus: "Nothing in the record supports
the trial court's unbelief that Isabel Gabriel dictated her will without any note or document to Atty.
Paraiso. On the contrary, all the three attesting witnesses uniformly testified that Isabel Gabriel
dictated her will to Atty. Paraiso and that other than the piece of paper that she handed to said
lawyer she had no note or document. This fact jibes with the evidence which the trial court itself
believed was unshaken that Isabel Gabriel was of sound disposing memory when she executed
her will.
Exhibit "F" reveals only seven (7) dispositions which are not complicated but quite simple. The first
was Isabel Gabriel's wish to be interred according to Catholic rites the second was a general
directive to pay her debts if any; the third provided for P1,000.00 for her sister Praxides Gabriel Vda.
de Santiago and P2,000.00 for her brother Santiago Gabriel; the fourth was a listing of her 13
nephews and nieces including oppositor-appellee Rizalina Gabriel and the amount for each legatee
the fifth was the institution of the petitioner-appellant, Lutgarda Santiago as the principal heir
mentioning in general terms seven (7) types of properties; the sixth disposed of the remainder of her
estate which she willed in favor of appellant Lutgarda Santiago but prohibiting the sale of such
properties to anyone except in extreme situations in which judgment is based on a misapprehension
of facts; (5) when the findings of fact are conflicting, (6) when the Court of Appeals, in making its
findings, went beyond the issues of the case and the same is contrary to the admissions of both
appellant and appellee. (Roque vs. Buan, et al., G.R. No. L-22459, Oct. 31, 1967; Ramos vs. Pepsi
Cola Bottling Co., G.R. No. L-22533, Feb. 9, 1967; Hilarion Jr. vs. City of Manila, G.R. No. L-19570;
Sept. 14, 1967).
Petitioner's insistence is without merit. We hold that the case at bar does not fall within any of the
exceptions enumerated above. We likewise hold that the findings of fact of the respondent appellate
court are fully supported by the evidence on record. The conclusions are fully sustained by
substantial evidence. We find no abuse of discretion and We discern no misapprehension of facts.
The respondent Court's findings of fact are not conflicting. Hence, the well-established rule that the
decision of the Court of Appeals and its findings of fact are binding and conclusive and should not be
disturbed by this Tribunal and it must be applied in the case at bar in its full force and effect, without
qualification or reservation. The above holding simply synthesize the resolutions we have heretofore
made in respect ' to petitioner's previous assignments of error and to which We have disagreed and,
therefore, rejected.
The last assignments of error of petitioner must necessarily be rejected by Us as We find the
respondent Court acted properly and correctly and has not departed from the accepted and usual
course of judicial proceedings as to call for the exercise of the power of supervision by the Supreme
Court, and as We find that the Court of Appeals did not err in reversing the decision of the trial court
and admitting to probate Exhibit "F", the last will and testament of the deceased Isabel Gabriel.
We rule that the respondent Court's factual findings upon its summation and evaluation of the
evidence on record is unassailable that: "From the welter of evidence presented, we are convinced
that the will in question was executed on April 15, 1961 in the presence of Matilde Orobia, Celso
Gimpaya and Maria Gimpaya signing and witnessing the same in the the will on a table with Isabel
Gabriel, Celso Gimpaya and Maria Gimpaya sitting around the table. Atty. Paraiso, after finishing the
notarial act, then delivered the original to Isabel Gabriel and retained the other copies for his file and
notarial register. A few days following the signing of the will, Isabel Gabriel, Celso Gimpaya and
another photographer arrived at the office of Atty. Paraiso and told the lawyer that she wanted
another picture taken because the first picture did not turn out good. The lawyer told her that this

cannot be done because the will was already signed but Isabel Gabriel insisted that a picture be
taken, so a simulated signing was performed during which incident Matilde Orobia was not present.
Petitioner's exacerbation centers on the supposed incredibility of the testimonies of the witnesses for
the proponent of the will, their alleged evasions, inconsistencies and contradictions. But in the case
at bar, the three instrumental witnesses who constitute the best evidence of the will making have
testified in favor of the probate of the will. So has the lawyer who prepared it, one learned in the law
and long in the practice thereof, who thereafter notarized it. All of them are disinterested witnesses
who stand to receive no benefit from the testament. The signatures of the witnesses and the testatrix
have been identified on the will and there is no claim whatsoever and by anyone, much less the
petitioner, that they were not genuine. In the last and final analysis, the herein conflict is factual and
we go back to the rule that the Supreme Court cannot review and revise the findings of facts of the
respondent Court of Appeals.
WHEREFORE, IN VIEW OF THE FOREGOING, the judgment appealed from is hereby AFFIRMED,
with costs against the petitioner.
SO ORDERED.
Teehankee, Makasiar, De Castro and Herrera, JJ., concur.

#Footnotes
1 Penned by then Acting Presiding Justice Juan P. Enriquez, concurred in by
Associate Justices Mateo Canonoy and Ramon C. Fernandez.
* Justice Ramon C. Fernandez, a member of the First Division, took no part.
2 Annex "B", Petition; Rollo, Vol. I, pp. 81-101.
3 Annexes " H " and " I ", Petition; Rollo, Vol. I, pp. 154.
4 Annex "K", Petition; Ro 0, Vol- 1, pp. 167-198.
5 Annexes "L" and "M", Petition; Rollo, Vol. I, pp. 199- 248.
6 Penned by Associate Justice Ramon C. Fernandez, and con- curred in by
Associate Justices Cecili Munoz Palma and Mateo Canonoy.
7 Annex "N", Petition; Rollo, Vol. 1, pp. 250-251.
8 Rollo, Vol. II, pp. 270-312.
9 Rollo, Vol. II, p. 317.