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Republic of the Philippines

SUPREME COURT
Manila

SECOND DIVISION

G.R. No. 76464 February 29, 1988

TESTATE ESTATE OF THE LATE ADRIANA MALOTO, ALDINA MALOTO CASIANO,


CONSTANCIO MALOTO, PURIFICACION MIRAFLOR, ROMAN CATHOLIC CHURCH OF MOLO,
AND ASILO DE MOLO,petitioners,
vs.
COURT OF APPEALS, PANFILO MALOTO AND FELINO MALOTO, respondents.

SARMIENTO, J.:

This is not the first time that the parties to this case come to us. In fact, two other cases directly
related to the present one and involving the same parties had already been decided by us in the
past. In G.R. No. L-30479, 1which was a petition for certiorari and mandamus instituted by the petitioners
herein, we dismissed the petition ruling that the more appropriate remedy of the petitioners is a separate
proceeding for the probate of the will in question. Pursuant to the said ruling, the petitioners commenced
in the then Court of First Instance of Iloilo, Special Proceeding No. 2176, for the probate of the disputed
will, which was opposed by the private respondents presently, Panfilo and Felino both surnamed Maloto.
The trial court dismissed the petition on April 30, 1970. Complaining against the dismissal, again, the
petitioners came to this Court on a petition for review by certiorari. 2 Acting on the said petition, we set
aside the trial court's order and directed it to proceed to hear the case on the merits. The trial court, after
hearing, found the will to have already been revoked by the testatrix. Adriana Maloto, and thus, denied the
petition. The petitioners appealed the trial court's decision to the Intermediate Appellate Court which, on
June 7, 1985, affirmed the order. The petitioners' motion for reconsideration of the adverse decision
proved to be of no avail, hence, this petition.

For a better understanding of the controversy, a factual account would be a great help.

On October 20, 1963, Adriana Maloto died leaving as heirs her niece and nephews, the petitioners
Aldina Maloto-Casiano and Constancio, Maloto, and the private respondents Panfilo Maloto and
Felino Maloto. Believing that the deceased did not leave behind a last will and testament, these four
heirs commenced on November 4, 1963 an intestate proceeding for the settlement of their aunt's
estate. The case was instituted in the then Court of First Instance of Iloilo and was docketed as
Special Proceeding No. 1736. However, while the case was still in progress, or to be exact on
February 1, 1964, the parties — Aldina, Constancio, Panfilo, and Felino — executed an agreement
of extrajudicial settlement of Adriana's estate. The agreement provided for the division of the estate
into four equal parts among the parties. The Malotos then presented the extrajudicial settlement
agreement to the trial court for approval which the court did on March 21, 1964. That should have
signalled the end of the controversy, but, unfortunately, it had not.

Three years later, or sometime in March 1967, Atty. Sulpicio Palma, a former associate of Adriana's
counsel, the late Atty. Eliseo Hervas, discovered a document entitled "KATAPUSAN NGA
PAGBUBULAT-AN (Testamento)," dated January 3,1940, and purporting to be the last will and
testament of Adriana. Atty. Palma claimed to have found the testament, the original copy, while he
was going through some materials inside the cabinet drawer formerly used by Atty. Hervas. The
document was submitted to the office of the clerk of the Court of First Instance of Iloilo on April 1,
1967. Incidentally, while Panfilo and Felino are still named as heirs in the said will, Aldina and
Constancio are bequeathed much bigger and more valuable shares in the estate of Adriana than
what they received by virtue of the agreement of extrajudicial settlement they had earlier signed. The
will likewise gives devises and legacies to other parties, among them being the petitioners Asilo de
Molo, the Roman Catholic Church of Molo, and Purificacion Miraflor.

Thus, on May 24, 1967, Aldina and Constancio, joined by the other devisees and legatees named in
the will, filed in Special Proceeding No. 1736 a motion for reconsideration and annulment of the
proceedings therein and for the allowance of the will When the trial court denied their motion, the
petitioner came to us by way of a petition for certiorari and mandamus assailing the orders of the trial
court . 3 As we stated earlier, we dismissed that petition and advised that a separate proceeding for the
probate of the alleged will would be the appropriate vehicle to thresh out the matters raised by the
petitioners.

Significantly, the appellate court while finding as inconclusive the matter on whether or not the
document or papers allegedly burned by the househelp of Adriana, Guadalupe Maloto Vda. de
Coral, upon instructions of the testatrix, was indeed the will, contradicted itself and found that the will
had been revoked. The respondent court stated that the presence of animus revocandi in the
destruction of the will had, nevertheless, been sufficiently proven. The appellate court based its
finding on the facts that the document was not in the two safes in Adriana's residence, by the
testatrix going to the residence of Atty. Hervas to retrieve a copy of the will left in the latter's
possession, and, her seeking the services of Atty. Palma in order to have a new will drawn up. For
reasons shortly to be explained, we do not view such facts, even considered collectively, as sufficient
bases for the conclusion that Adriana Maloto's will had been effectively revoked.

There is no doubt as to the testamentary capacity of the testatrix and the due execution of the will.
The heart of the case lies on the issue as to whether or not the will was revoked by Adriana.

The provisions of the new Civil Code pertinent to the issue can be found in Article 830.

Art. 830. No will shall be revoked except in the following cases:

(1) By implication of law; or

(2) By some will, codicil, or other writing executed as provided in case of wills: or

(3) By burning, tearing, cancelling, or obliterating the will with the intention of
revoking it, by the testator himself, or by some other person in his presence, and by
his express direction. If burned, torn cancelled, or obliterated by some other person,
without the express direction of the testator, the will may still be established, and the
estate distributed in accordance therewith, if its contents, and due execution, and the
fact of its unauthorized destruction, cancellation, or obliteration are established
according to the Rules of Court. (Emphasis Supplied.)

It is clear that the physical act of destruction of a will, like burning in this case, does not per se
constitute an effective revocation, unless the destruction is coupled with animus revocandi on the
part of the testator. It is not imperative that the physical destruction be done by the testator himself. It
may be performed by another person but under the express direction and in the presence of the
testator. Of course, it goes without saying that the document destroyed must be the will itself.
In this case, while animus revocandi or the intention to revoke, may be conceded, for that is a state
of mind, yet that requisite alone would not suffice. "Animus revocandi is only one of the necessary
elements for the effective revocation of a last will and testament. The intention to revoke must be
accompanied by the overt physical act of burning, tearing, obliterating, or cancelling the will carried
out by the testator or by another person in his presence and under his express direction. There is
paucity of evidence to show compliance with these requirements. For one, the document or papers
burned by Adriana's maid, Guadalupe, was not satisfactorily established to be a will at all, much less
the will of Adriana Maloto. For another, the burning was not proven to have been done under the
express direction of Adriana. And then, the burning was not in her presence. Both witnesses,
Guadalupe and Eladio, were one in stating that they were the only ones present at the place where
the stove (presumably in the kitchen) was located in which the papers proffered as a will were
burned.

The respondent appellate court in assessing the evidence presented by the private respondents as
oppositors in the trial court, concluded that the testimony of the two witnesses who testified in favor
of the will's revocation appear "inconclusive." We share the same view. Nowhere in the records
before us does it appear that the two witnesses, Guadalupe Vda. de Corral and Eladio Itchon, both
illiterates, were unequivocably positive that the document burned was indeed Adriana's will.
Guadalupe, we think, believed that the papers she destroyed was the will only because, according to
her, Adriana told her so. Eladio, on the other hand, obtained his information that the burned
document was the will because Guadalupe told him so, thus, his testimony on this point is double
hearsay.

At this juncture, we reiterate that "(it) is an important matter of public interest that a purported win is
not denied legalization on dubious grounds. Otherwise, the very institution of testamentary
succession will be shaken to its very foundations ...." 4

The private respondents in their bid for the dismissal of the present action for probate instituted by
the petitioners argue that the same is already barred by res adjudicata. They claim that this bar was
brought about by the petitioners' failure to appeal timely from the order dated November 16, 1968 of
the trial court in the intestate proceeding (Special Proceeding No. 1736) denying their (petitioners')
motion to reopen the case, and their prayer to annul the previous proceedings therein and to allow
the last will and testament of the late Adriana Maloto. This is untenable.

The doctrine of res adjudicata finds no application in the present controversy. For a judgment to be a
bar to a subsequent case, the following requisites must concur: (1) the presence of a final former
judgment; (2) the former judgment was rendered by a court having jurisdiction over the subject
matter and the parties; (3) the former judgment is a judgment on the merits; and (4) there is,
between the first and the second action, Identity of parties, of subject matter, and of cause of
action. 5 We do not find here the presence of all the enumerated requisites.

For one, there is yet, strictly speaking, no final judgment rendered insofar as the probate of Adriana
Maloto's will is concerned. The decision of the trial court in Special Proceeding No. 1736, although
final, involved only the intestate settlement of the estate of Adriana. As such, that judgment could not
in any manner be construed to be final with respect to the probate of the subsequently discovered
will of the decedent. Neither is it a judgment on the merits of the action for probate. This is
understandably so because the trial court, in the intestate proceeding, was without jurisdiction to rule
on the probate of the contested will . 6 After all, an action for probate, as it implies, is founded on the
presence of a will and with the objective of proving its due execution and validity, something which can
not be properly done in an intestate settlement of estate proceeding which is predicated on the
assumption that the decedent left no will. Thus, there is likewise no Identity between the cause of action
in intestate proceeding and that in an action for probate. Be that as it may, it would be remembered that it
was precisely because of our ruling in G.R. No. L-30479 that the petitioners instituted this separate action
for the probate of the late Adriana Maloto's will. Hence, on these grounds alone, the position of the private
respondents on this score can not be sustained.

One last note. The private respondents point out that revocation could be inferred from the fact that
"(a) major and substantial bulk of the properties mentioned in the will had been disposed of: while an
insignificant portion of the properties remained at the time of death (of the testatrix); and,
furthermore, more valuable properties have been acquired after the execution of the will on January
3,1940." 7 Suffice it to state here that as these additional matters raised by the private respondents are
extraneous to this special proceeding, they could only be appropriately taken up after the will has been
duly probated and a certificate of its allowance issued.

WHEREFORE, judgment is hereby rendered REVERSING and SETTING ASIDE the Decision dated
June 7, 1985 and the Resolution dated October 22, 1986, of the respondent Court of Appeals, and a
new one ENTERED for the allowance of Adriana Maloto's last will and testament. Costs against the
private respondents.

This Decision is IMMEDIATELY EXECUTORY.

SO ORDERED.

Yap (Chairman), Melencio-Herrera, and Paras JJ., concur.

Padilla, J., took no part.

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 well-
established 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 picture-
takings, 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.


Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. L-26317 January 29, 1927

Estate of Miguel Mamuyac, deceased.


FRANCISCO GAGO, petitioner-appellant,
vs.
CORNELIO MAMUYAC, AMBROSIO LARIOSA,
FELICIANA BAUZON, and CATALINA MAMUYAC, opponents-appellees.

Nicanor Tavora for appellant.


Jose Rivera for appellees.

JOHNSON, J.:

The purpose of this action was to obtain the probation of a last will and testament of Miguel
Mamuyac, who died on the 2d day of January, 1922, in the municipality of Agoo of the Province of La
Union. It appears from the record that on or about the 27th day of July, 1918, the said Miguel
Mamuyac executed a last will and testament (Exhibit A). In the month of January, 1922, the said
Francisco Gago presented a petition in the Court of First Instance of the Province of La Union for the
probation of that will. The probation of the same was opposed by Cornelio Mamuyac, Ambrosio
Lariosa, Feliciana Bauzon, and Catalina Mamuyac (civil cause No. 1144, Province of La Union). After
hearing all of the parties the petition for the probation of said will was denied by the Honorable C. M.
Villareal on the 2d day of November, 1923, upon the ground that the deceased had on the 16th day
of April, 1919, executed a new will and testament.

On the 21st day of February, 1925, the present action was commenced. Its purpose was to secure
the probation of the said will of the 16th day of April, 1919 (Exhibit 1). To said petition Cornelio
Mamuyac, Ambrosio Lariosa, Feliciana Bauzon, and Catalina Mamuyac presented their oppositions,
alleging (a) that the said will is a copy of the second will and testament executed by the said Miguel
Mamuyac; (b) that the same had been cancelled and revoked during the lifetime of Miguel Mamuyac
and (c) that the said will was not the last will and testament of the deceased Miguel Mamuyac.

Upon the issue thus presented, the Honorable Anastacio R. Teodoro, judge, after hearing the
respective parties, denied the probation of said will of April 16, 1919, upon the ground that the same
had been cancelled and revoked in the year 1920. Judge Teodoro, after examining the evidence
adduced, found that the following facts had been satisfactorily proved:

That Exhibit A is a mere carbon of its original which remained in the possession of the
deceased testator Miguel Mamuyac, who revoked it before his death as per testimony of
witness Jose Fenoy, who typed the will of the testator on April 16, 1919, and Carlos Bejar,
who saw on December 30, 1920, the original Exhibit A (will of 1919) actually cancelled by the
testator Miguel Mamuyac, who assured Carlos Bejar that inasmuch as he had sold him a
house and the land where the house was built, he had to cancel it (the will of 1919),
executing thereby a new testament. Narcisa Gago in a way corroborates the testimony of
Jose Fenoy, admitting that the will executed by the deceased (Miguel Mamuyac) in 1919 was
found in the possession of father Miguel Mamuyac. The opponents have successfully
established the fact that father Miguel Mamuyac had executed in 1920 another will. The
same Narcisa Gago, the sister of the deceased, who was living in the house with him, when
cross-examined by attorney for the opponents, testified that the original Exhibit A could not
be found. For the foregoing consideration and for the reason that the original of Exhibit A has
been cancelled by the deceased father Miguel Mamuyac, the court disallows the probate of
Exhibit A for the applicant." From that order the petitioner appealed.

The appellant contends that the lower court committed an error in not finding from the evidence that
the will in question had been executed with all the formalities required by the law; that the same had
been revoked and cancelled in 1920 before his death; that the said will was a mere carbon copy and
that the oppositors were not estopped from alleging that fact.

With reference to the said cancellation, it may be stated that there is positive proof, not denied,
which was accepted by the lower court, that will in question had been cancelled in 1920. The law
does not require any evidence of the revocation or cancellation of a will to be preserved. It therefore
becomes difficult at times to prove the revocation or cancellation of wills. The fact that such
cancellation or revocation has taken place must either remain unproved of be inferred from evidence
showing that after due search the original will cannot be found. Where a will which cannot be found
is shown to have been in the possession of the testator, when last seen, the presumption is, in the
absence of other competent evidence, that the same was cancelled or destroyed. The same
presumption arises where it is shown that the testator had ready access to the will and it cannot be
found after his death. It will not be presumed that such will has been destroyed by any other person
without the knowledge or authority of the testator. The force of the presumption of cancellation or
revocation by the testator, while varying greatly, being weak or strong according to the
circumstances, is never conclusive, but may be overcome by proof that the will was not destroyed by
the testator with intent to revoke it.

In view of the fat that the original will of 1919 could not be found after the death of the testator Miguel
Mamuyac and in view of the positive proof that the same had been cancelled, we are forced to the
conclusion that the conclusions of the lower court are in accordance with the weight of the evidence.
In a proceeding to probate a will the burden of proofs is upon the proponent clearly to establish not
only its execution but its existence. Having proved its execution by the proponents, the burden is on
the contestant to show that it has been revoked. In a great majority of instances in which wills are
destroyed for the purpose of revoking them there is no witness to the act of cancellation or
destruction and all evidence of its cancellation perishes with the testator. Copies of wills should be
admitted by the courts with great caution. When it is proven, however, by proper testimony that a will
was executed in duplicate and each copy was executed with all the formalities and requirements of
the law, then the duplicate may be admitted in evidence when it is made to appear that the original
has been lost and was not cancelled or destroyed by the testator. (Borromeo vs. Casquijo, G.R. No.
L-26063.)1

After a careful examination of the entire record, we are fully persuaded that the will presented for
probate had been cancelled by the testator in 1920. Therefore the judgment appealed from is hereby
affirmed. And without any finding as to costs, it is so ordered.

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

Footnotes

1
Promulgated December 14, 1926, not reported.
Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. L-44680 January 11, 1979

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,


vs.
DOMINADOR MOLO, defendant-appellant.

Pedro Q. Quadra (Counsel de Oficio) for appellant.

Solicitor General Estelito P. Mendoza, Assistant Solicitor General Reynato & Puno and Solicitor
Romeo C. de la Cruz for appellee.

PER CURIAM:

Automatic review of the death sentence with accessory penalties imposed on September 3, 1976
upon accused-appellant Dominador Molo by Hon. Job B. Mandayag of the Court of First Instance of
Romblon, 11th Judicial District, in Criminal Case No. 571 for the murder of Venancio Gapisa on 9
April 1976 at Sitio Dacotan, Barrio Tambac, Romblon, Romblon.

The above-named accused was charged with murder in an Information filed by Asst. Provincial
Fiscal Cesar M. Solis, on May 31,1976, as follows:

The undersigned Assistant Provincial Fiscal of Romblon accuses DOMINADOR


MOLO of the crime of MURDER committed as follows:

That on or about the 9th day of April 1976, at around 8:00 o'clock in the evening, at
sitio Dacotan, barrio of Tambac municipality of Romblon, province of Romblon,
Philippines and within the jurisdiction of this Honorable Court, the above-named
accused with treachery and taking advantage of superior strength, did then and there
wilfully, unlawfully and feloniously attack and assault one Venancio Gapisa, with the
use of a bolo as a consequence of which he sustained mortal injuries that resulted in
his death thereafter.

That the killing was attended with the following aggravating circumstances:

(A) Dwelling, for the crime was committed in the house of the offended party who has
not given any provocation at all.

(B) Recidivism in view of the fact that the accused has been charged for (1)
Frustrated Murder before the Court of First instance of Mindoro in Criminal Case V-
542 entitled People va. Dominador Molo and convicted thereof on September 2,
1950; and (2) Murder, before the Court of First Instance of Romblon in Criminal Case
No. 862 entitled People vs. Dominador Molo and convicted thereof on July 27, 1961.
(C) Reiteration, since he has been charged and convicted before different courts in
the following criminal cases:

(1) Grave Slander, before the Court of First Instance of Romblon in Criminal Case
No. V-669 and convicted on June 5, 1957.

(2) Less Serious Physical Injuries, before the Municipal Court of Romblon, Romblon
in Criminal Case No. 839 and convicted on October 9, 1959.

(3) Qualified Trespass to Dwelling, before the Municipal Court of Romblon, Romblon
in Criminal Case No. 845 and convicted on February 25, 1960.

(4) Robbery, before the Court of First Instance of Davao in Criminal Case No. 9982
and convicted on March 1, 1967.

That as a consequence of the aforementioned act committed by the accused. the


heirs of the deceased are entitled to recover civil damages pursuant to the provisions
of law.

CONTRARY TO LAW.

Romblon, Romblon, May 31,1976.

(SGD.)
CESAR
M.
SOLIS
Assista
nt
Provinci
al
Fiscal

At the trial, the prosecution presented the testimonies of — (1) the victim's wife, Simeona Gapisa, an
eye-witness to the alleged murder; (2) Alejandro Gapisa, a son of the victim who went to the rescue
of his father after he was stabbed by accuse-appellant and was able to talk with him before he
succumbed to several bolo wounds; (3) Roman man a neighbor of Alejandro; and (4) Dr. Victorio
Benedicto, who performed the autopsy and accomplished the Autopsy Report, Exhibits "A" and "A.1
The accused, who offered alibi as a defense, presented his testimony and that of his wife. Barbara
Mingo, and Police Patrolman Rodolfo Manunggay and Exhibits 1, a bolo and 1-a, scabbard.

The operative facts of the case and the circumstances surrounding the apprehension and
investigation of the accused now appellant established by the evidence on record are as follow.

In the evening of April 9, 1976 at about 8:00 p.m. at Sitio Dacotan, Barrio Tambac, Municipality of
Romblon, Venancio Gapisa and Simeona Rapa-Gapisa, husband and wife, retired to sleep. The
couple lived in a typical hut made of bamboo flooring and dilapidated burl walling surrounded by fruit.
bearing banana plants. Venancio Gapisa immediately fell asleep because he was tired from clearing
the fields, and besides, had drunk tuba on that day. He slept near the door lying on his right side. 1
Not long after the couple had retired, Simeona, who had not yet fallen asleep, heard an indistinct
sound of murmur and gnashing of teeth. Although she was seized by fear, she managed to peep
through the dilapidated buri wall and saw accused Dominador Molo attired only in short pants. He
was alone. Trembling, she immediately lighted a kerosene lamp and placed it on top of the trunk
nearby. She tried to awaken her husband, but the latter did not respond. 2

Meanwhile, the accused had already climbed up the house which was only a flight of two steps. The
accused forcibly pushed the sliding door and barged into the house. He inquired from Simeona
where Venancio was and she replied that he was asleep. Finding Venancio sleeping near the door,
he immediately grabbed his left wrist and started hacking at the sleeping old man. Rudely
awakened, Venancio quickly stood up and with his right hand reached for his bolo which was atop
the table nearby; but he was not able to retaliate in as much as Dominador Molo was quick to hack
at him again. Fearing for her own life, Simeona rushed out of the house through the door of the
unfinished kitchen to summon help from her son, Alejandro Gapisa, who was at Roman Mangaring's
house some 100 meters away. Trembling, she told him that his father was boloed by Boslo, the
name by which accused-appellant was known in their locality. 3

Upon being informed, Alejandro and Roman ran towards the house of Venancio, followed by
Simeona. Upon arrival, they saw Venancio bleeding profusely and in weakened condition. He was
sitting on the floor of the kitchen, defecating in his pants. When Alejandro took him in his arms,
Venancio told him that he was boloed by Boslo. Roman Mangaring who was present also inquired
from Venancio who his assailant was and elicited the answer, "Boslo". 4 Venancio was then rushed to
the hospital and arrived there at about 1:50 a.m. He expired a few minutes after. 5

An autopsy of the victim disclosed that he died of hemorrhage from multiple incised wounds. The
wounds sustained were:

1. Incised wound, 10 cms. in length, gaping about 4 cms., slanting in position with the
lower portion located anteriorly, penetrating the bone, at the anterolateral aspect of
the distal 3rd of the left arm.

2. Incised wound, about 10 cms. in length, gaping, slanting in position, with the lower
and located anteriorly, penetrating the bone, located 3 cms. below the wound
mentioned above.

3. Incised wound, about 10 cms. in length, gaping slightly at the anterolateral aspect
of the neck, left side, slanting, with the lower and located anteriorly penetrating the
muscle layer.

4. Incised wound, about 10 cms. gaping, slightly slanting with the lower end located
anteriorly, located 3 cms. below the 3rd wound, fracturing the clavicle, the costo-
chondral portion of the 2nd rib and the lateral portion of the sternum, left side.

5. Incised wound, 8 cms. in length, gaping about 4 cms., slanting with the lower end
located anteriorly, penetrating the bone, located at the lower end of the distal 3rd of
the right arm, anterolateral portion.

6. Incised wound, 5 cms. in length, gaping slightly, slanting with the lower end
located anteriorly, penetrating the bone, at the; upper 3rd of the right forearm,
anterolateral aspect.

7. Incised wound, 4 cms., superficial, at the anterior portion of the neck,


8. Incised wound 4 cms., superficial, right medial aspect, upper 3rd, right forearm.

Internal Findings:

Wound No. 4 penetrated the apex of the left lung inflicting a small wound, about 2-3
cms. causing minimal bleeding.

The Cause of Death: Hemorrhage from multiple incised wounds. 6

The following morning an investigation of the fatal incident was conducted. Pat. Manuel Marino in
the presence of Patrolmen Montojo and Antonio Madali took the statement of Simeona Gapisa, who
Identified Dominador Molo as the assailant of her deceased husband. 7 Thereafter, PC soldiers and
policemen were dispatched to the house of Dominador Molo some one and a half (1-1/2) kilometers away
from the scene of the killing. Dominador Molo was placed under arrest and brought by the arresting
officers to the poblacion. Investigated at the PC barracks, Molo denied having committed any wrong and
having gone to the place of Venancio Gapisa. 8

On April 23, 1976, after additional statements of Alejandro Gapisa, Roman Mangaring and Florencio
Guarte were secured, a criminal complaint was filed in the Municipal Court of Romblon. 9 The
preliminary examination was conducted by Mayor Peter M. Montojo, for and in the absence of the
municipal judge. Thereafter, he issued an order confirming the detention of accused who was then
detained in the Municipal jail of Romblon, there being "... reasonable ground to believe that the offense
was committed and that the accused is probably guilty thereof. 10 The accused waived the second stage
of the preliminary investigation. 11 On May 31, 1976, an information, as adverted to above, was filed
against Molo accusing him of the crime of murder. 12

After trial, the court a quo — relying on the testimony of Simeona Gapisa who was an eye- and ear-
witness to the incident and the corroborating testimonies of Alejandro Gapisa and Roman
Mangaring, who testified on the antemortem statements of the victim Identifying accused as the
assailant; discounting the defense of alibi put forth by the accused and his wife; appreciating the
qualifying circumstance of treachery and the aggravating circumstances of dwelling, recidivism and
reiteration alleged in the Information, and a mitigating circumstance, voluntary surrender, sentenced
the accused on September 3, 1976, as follows:

WHEREFORE, this Court renders judgment finding accused Dominador Molo guilty
beyond reasonable doubt of the crime of murder, charged in the information and,
since after off-setting the lone mitigating circumstance of voluntary surrender with the
aggravating circumstance of either dwelling, recidivism or reiteration there remains
two aggravating circumstances, sentencing him to suffer the supreme Penalty of
death. He is further adjudged to pay the heirs of the deceased Venancio Gapisa, the
sum of Twelve Thousand Pesos (P 12,000), and to pay the cost.

SO ORDERED. 13

Accused-appellant thru Atty. Pedro Q. Quadra, counsel de oficio now seeks acquittal on the basis of
two assigned erors, to wit -

1. Appellant was convicted upon proof not beyond reasonable doubt;

2. Identification of the appellant was not proven beyond reasonable doubt. 14


1. In support of the first, he argues that while proof of motive is unnecessary if the evidence of
Identification is convincing — citing People vs. Cunanan, 19 SCRA 769; People vs. Portugueza, 20
SCRA 901; People vs. Jamero, 24 SCRA 206; and People vs. Guardo, 24 SCRA 851 — there is, he
claims, a total want of motive on appellant's part, as admitted by the victim's wife, Simeona Gapisa,
and son, Alejandro Gapisa. 15

2. In support of the second assigned error, appellant contents that his Identity as the assailant was
not established beyond reasonable doubt, because of — (a) alleged inconsistencies and incredible
assertions in Simeona's testimony; (b) physical conditions which rendered it impossible for her to
recognized accused-appellant; (c) her alleged admission that she pointed to accuse-appellant as the
assailant because he was a hated criminal in their locality; and (d) that the so-called dying
declarations should not have been accorded credence, because the victim could not have Identified
his assailant. 16

Solicitor General Estelito P. Mendoza - who was assisted by Assistant Solicitor General Reynato
Puno and Solicitors Romeo S. dela Cruz - after refuting the foregoing assignment of errors submits
the following conclusions as to the nature of the offense committed, the qualifying and aggravating
circumstances that attended the commission thereof, and, that the accused is not entitled to the
mitigating circumstance of voluntary surrender, thus —

xxx xxx xxx

Since the attack was commenced while Venancio Gapisa was asleep and therefore
he could not make a defense, the killing was attended with treachery. Treachery
qualifies the killing into murder. (Article 248, Revised Penal Code).

Dwelling is an aggravating circumstance because the killing was done in the house
of Venancio Gapisa who had not given provocation. (Art. 14 (3), Revised Penal
Code).

Other aggravating circumstances are recidivism and reiteration. (Article 14,


paragraphs 9 and 19, Revised Penal Code). Accused-appellant had been previously
convicted of murder, frustrated murder, grave slander, less serious physical injuries,
qualified trespass to dwelling and robbery. (pp. 10-12, tsn., July 12, 1976).

Accused-appellant is not entitled to the mitigating circumstance of voluntary


surrender. He did not surrender to the authorities. As admitted by him, he was
arrested by a combined force of policemen and Philippine Constabulary agents at his
residence the day after the killing. (p, 6, tsn., July 29,1976).

Since there are three aggravating circumstances and no mitigating circumstance, the
penalty properly imposable upon accused-appellant is death. 17

and recommends that the finding of guilt for the offense of murder and the death sentence imposed
upon appellant be affirmed in toto. 18

Now, to consider the merits of the alleged errors.

1. Re the claim that there is no proof of motive on appellant's part. This error may be subsumed
under and/or discussed together with the second, since it admits that motive need not be shown
where there is positive Identification, which, as We shall explain later, happened in this case.
However, by way of traverse, We find the following observations of the Solicitor General well-taken,
and therefore well worth adopting.

xxx xxx xxx

Appellee concedes that it has failed to show any motive of accused- appellant in
killing Venancio Gapisa.

Both Simeona Gapisa and Alejandro Gapisa ventured robbery as the motive of
accused-appellant (pp. 34, 44, tsn., July 12, 1976). They could not, however, state
how much money was taken, from whom it was taken and how it was taken (pp. 34-
38, 44-45, tsn., July 12,1976).

Lest it be thought that Simeona Gapisa and Alejandro Gapisa gave false testimony,
thus rendering themselves untrustworthy witnesses, it should be pointed out that
when they mentioned robbery as the possible motive of accused-appellant, Alejandro
Gapisa made it clear that was only his "surmise" (p. 34, tsn., July 12, 1976) while
Simeona Gapisa qualified her assertion with the word "maybe" (p. 44, tsn., July 12,
1976). They were not committal or categorical about the matter.

Aside from robbery, there was no other possible motive of accused-appellant. Both
Simeona Gapisa and Alejandro Gapisa admitted that accused-appellant had no
grudge against Venancio Gapisa and his family and vice-versa (pp. 33-34, 53-54,
tsn., July 12, 1976).

But even in the absence of proof of motive, the conviction of accused- appellant can
stand inasmuch as he had been positively Identified by Simeona Gapisa and by the
deceased himself through his dying declaration. Motive need not be shown when
there is positive Identification. (People vs. Feliciano, 58 SCRA 383; People vs.
Dorico, 54 SCRA 172). 19

xxx xxx xxx

2. Re the contention that his Identity as assailant was not established beyond reasonable doubt.

(a) That there are inconsistencies and incredible assertions in Simeona's testimony.Simeona Gapisa
— who was present when accused-appellant attacked her husband Venancio with a bolo — testified
on direct and re-direct examinations by Assistant Provincial Fiscal Cesar M. Solis and on cross and
recross examinations by Atty. Alexander Mortel, counsel de oficio of accused, thus —

xxx xxx xxx

Fiscal Solis:

Q — By the way, when you first heard the unusual sound since you
were still awake, what did you do?

A — I lighted a lamp, I first looked at him by peeping thru the wall of


our house and once I had recognized his face as that of Dominador
Molo I lighted a lamp.
Q — Was it only the face of Dominador Molo that you recognized
outside?

A — Yes, and he was alone.

Q — What about his body, did you recognize that body belong to
Dominador Molo?

A — I could see and that was the very body of his including his face
because it was bright.

Q — What provides the brightness that allowed you to recognize him


outside the house?

A — The moon was bright.

Q — Now, aside from the unusual murmuring sound, did you hear the
sound of grinding teeth?

A — In fact that was what he had done he was murmuring and at the
same time sounding like grinding teeth.

Q — Now, after you lighted a lamp what else did you do inside?

A — I stood up and stepped back because he had come up into the


house.

Q — Did you not wake up your husband?

A — I had but he did not notice.

Q — Now, what did you do with the lamp after you lighted it?

A — I placed it on top of our trunk which was towards our head.

Q — Now, how did you know that Dominador had gone up the
house?

A — Because I saw him going up into our house.

Q — When he went up the house, what did he do?

A — Once up the house he held my husband by the arm and


suddenly pulled out his bolo from his back and hacked him. 20

xxx xxx xxx

Q — How long have you known him?

A — Since he was a boy and until he grew up.


Q — By the way, by what affiliation (sic, should be appelation or
name) is he known in your locality?

A — Boslo.

Q — If that Dominador Molo the accused in this case known as Boslo


is present in the court room, will you be able to point him out in the
court?

A — He is here he is the one sitting.

Q — Could you not be mistaken?

A — That is true, it was his very appearance who is looking up in the


ceiling. 21

xxx xxx xxx

Atty. Mortel:

Q — Nevertheless, because the moon was a quarter moon only that


night April 9 the illumination any object that could be seen is quite
pale not so bright as if there was an alladin lamp, correct?

A — Yes.

Q — And as a matter of fact when this person whom you said was
making murmuring sounds when you peeped through your window
he was being illuminated by the beam of the light of the moon and his
face seems to be a yellowish and as clear as if there is an alladin
lamp, correct?

A — But I know that he was the very one I recognized his face and
he is far from the banana plantation and the Moon lights very well on
him.

Q — When the moon lighted very well on him his color was yellowish
was it not?

A — It was indeed his appearance that I saw and that is exactly how
he looked.

Q — And When you looked at him the first time that night he looked
lie Dominador Molo?

A — It was his very own appearance, his appearance never changed.

Q — And when you saw him you lighted a lamp, is that right?
A — I lighted a lamp because he was already there and I was afraid
of what he had done to us.

Q — You mean from the very first time that you saw him he was
making murmuring sounds you were already afraid that he would do
something bad against you and your husband?

A — Yes, I was already afraid and my skin seemed to shiver. 22

xxx xxx xxx

Q — And so when your husband was or rather when your house that
night of April 19 was entered into by a person making murmuring
sounds outside and boloed to death your husband there was no other
conclusion that you made but that it must be Boslo the killer?

A — Yes, in fact he was the very one it was his very looks. 23

Fiscal Solis:

Q — And who pushed open that door of yours, was it Dominador


Molo or a witch?

A — He was Dominador Molo, it was his very looks of the same


person who pushed the shutter of the door.

Q — What made you sure that the looks of that person was the one
who pushed open the door and went inside and hacked your
husband?

A — He was the one it was his very looks and I saw that it is his
looks.

xxx xxx xxx

Q — Now, what is this basis for positively telling us that is Dominador


Molo who killed your husband was it because of rumor circulating in
the locality of Cogon and that the assailant as to be Dominador Molo
because he has killed or because you saw then Dominador Molo
committing the act against your husband?

A — Not only what was given to me by way of information from other


people but because of what I actually saw with my eyes. 24

xxx xxx xxx

Atty. Mortel:

Q — Now, according to you when the door was pushed open the
person entered and he has the looks of that fellow whom you are
pointing to as Dominador Molo, is that correct?
A — He is the very one.

Q — And not only that person who entered the looks of that
Dominador Molo the accused in this case but he also has the height
that looks like the height of Dominador Molo, is that correct?

A — Yes and he had his shirt off and shorts on.

Q — And he has that looks and built of Dominador Molo, is that


correct?

A — Yes, that is his very appearance and could not be altered


anymore. 25

xxx xxx xxx

Appellant contents that inconsistencies exist between Simeona's statement given to the police and
her foregoing testimony in court, relative to — 1) the precise moment when Simeona recognized the
accused, 26 and 2) whether there was a conversation between Simeona and the accused. 27

The records show, however, that the alleged statement given to the police was neither offered as
evidence nor shown to witness in order to enable her to explain the discrepancies if any in
accordance to Section 16, Rule 132 of the Rules of Court. The proper bast was, therefore, not laid to
impeach Simeona's testimony on the basis of alleged inconsistent statements which she allegedly
made before the police. 28

At any rate, We find the alleged inconsistencies inconsequential. Inconsistencies on minor details or
on matters that are not of material consequence as to affect the guilt or the innocence of the
accused do not detract from the credibility of the witnesses. 29 The discordance in their testimonies on
collateral matters heightens their credibility and shows that their testimonies were not coached or
rehearsed. 30 Far from being evidence of falsehood, they could justifiably be regarded as a demonstration
of good faith. 31

It is also contended that the testimony of Simeona contains inconsistent averments. According to
accused-appellant Simeona claimed that she was able to Identify him because of the lamp which
was then lighted but that she also declared that the light was put out when the door was opened
because of the sudden gust of wind. 32 To support this contention, he quoted Simeona's testimony:

Q — And when the door was pushed open there was a sudden gust
of wind that entered the house, correct?

A — There was a consequence of the sudden entry.

Q — And with that sudden entry and gust of wind carried by this
fellow the light was snuffed out, correct?

A — Yes. (P. 51, tsn., July 12,1976).

A review of the transcript of the testimony shows that the foregoing is an inaccurate representation of
Simeona's testimony. For she clarified that her husband was already boloed before the light was
snuffed out. Thus, she testified on cross-examination:
Atty. Mortel:

Q — And with that sudden entry and gust of wind carried by that
fellow the light was snuffed out, correct?

A — Yes.

Q — And in the darkness inside this fellow who entered the house
began stabbing and boloing your husband, correct?

A — My husband was already boloed when the light was put out
because upon entrance he instantly took hold of my husband's arm
and started hacking him all over. 33

xxx xxx xxx

On re-direct examination, she declared —

Fiscal Solis:

Q — Now, you admitted on cross examination that the lamp was put
out now how were you able to know that your husband had attempted
to hold his bolo with his right hand and while in that position he was
hacked twice by a bolo by the accused Dominador Molo?

A — That stage occurred when the light was still on so it was still
bright. 34

Appellant also alleges that her testimony contains incredible assertions, i.e. that it was very unusual
that she remained silent while witnessing the attack on her husband. 35

But the transcripts show that appellant's own counsel below, Atty. Alexander Mortel, during the cross-
examination, provided the answer to this misgiving :

xxx xxx xxx

Q — When the door was pushed open did you not shout?

A — No, because I was afraid.

Q — Afraid of what?

A — I was afraid because I did not shout for fear that he might bolo
me.

Q — You were tongue-tied?

A — Yes.

Q — Because of fear?
A — Yes.

Q — Terrible fear?

A — Yes, it was terrible fear because my body trembled .

Q — To such extent that you were shocked?

A — Yes. 36

Appellant also argues that Simeona's account is contrary to physical facts. He claims that if, as she
testified, the victim was lying down when attacked, he would sustain stab, not incised wounds. He
explains that the natural tendency of a person attacking another who is lying down with a bolo would
be to thrust the bolo towards the body and not hack him. 37 This claim is without merit. The Solicitor
General's explanation on this point is well-taken. To simply thrust a bolo at a lying person is not as forceful
as to hack him with it. The first is an awkward if not difficult movement, but the second is natural and can
be done with facility. 38

(b) That conditions rendered it impossible for Simeona to recognize accused-appellant. It is


contended that Simeona could not have recognized accused-appellant while he was at the foot of
the stairs because the banana plants obstructed the light cast by the moon. 39

This, again, is without merit. Simeona testified that the banana plants did not obstruct the light cast
by the moon and the defense did not disprove this fact:

xxx xxx xxx

Atty. Mortel:

Q — And because of the banana plantation that is covering your yard


this quarter moon, the illumination thereof is obstructing a little by this
banana plantation?

A — But the bananas are not directly obstructing the door of our
house because they are standing towards the footpath the part of our
house was not obstructed of the light cast by the moon .

Q — Except by the footpath and the surrounding premises of the east


side of the house is shaded because the banana plantation are there
to obstruct the illumination of the moon, correct?

A — No, the light coming from the moon could not be obstructed
anymore by that plantation because the main door of our house is
fronting a yard.

Q — Nevertheless, because the moon was a quarter moon only that


night April 9 the illumination to any object that could be seen is quite
pale not so bright as if there was an alladin lamp, correct ?

A — Yes.
Q — And as a matter of fact when this person whom you said was
making murmuring sounds when you peeped through your window
he was being illuminated by the beam of the light of the moon and his
face seems to be a yellowish and as clear as if there is an alladin
lamp, correct?

A — But I know that he was the very one I recognized his face and
he is far from the banana plantation and the moon lights very well on
him.

Q — When the moon lighted very well on him his color was yellowish
was it not?

A — It was indeed his appearance that I saw and that is exactly how
he looked.

Q — And when you looked at him the first time that night he looked
like Dominador Molo?

A — It was his very own appearance his appearance never


changed. 40

Indeed, Simeona had no difficulty in recognizing the accused, considering that their house was only
elevated by two steps and at the time she saw him through the dilapidated burl wall he was already
at the foot of the stairs. 41

(c) That Simeona pointed to the accused as the killer because he was a hated criminal in the
locality. 42 Appellant contends that Simeona pointed to him as the assailant because he was a hated
criminal in the locality - not because he was properly Identified as the one who attacked the victim. This
claim has no basis in the records. For the testimony of Simeona shows that she was certain of accused-
appellant's Identity as assailant and that at one point accused-appellant even inquired from her where her
husband was, thus —

xxx xxx xxx

Fiscal Solis:

Q — And who pushed open that door of yours, was it Dominador


Molo or a witch?

A — He was Dominador Molo, it was his very looks of the same


person who pushed the shutter of the door.

Q — What made you sure that the looks of that person was the one
who pushed open the door and went inside and hacked your
husband?

A — He was the one it was his very looks and I saw that it is his
looks.

xxx xxx xxx


Q — Now, what is this basis for positively telling us that it is
Dominador Molo who killed your husband was it because of rumor
circulating in the locality of Cogon and that the assailant as to be
Dominador Molo because he has killed or because you saw then
Dominador Molo committing the act against your husband?

A — Not only what was given to me by way of information from other


people but because of what I actually saw with my eyes.

xxx xxx xxx

Atty. Mortel:

Q — Now, according to you when the door was pushed open the
person entered and he has the looks of that fellow whom you are
pointing to as Dominador Molo, is that correct.

A — He is the very one.

Q — And not only that person who entered has the looks of
Dominador Molo the accused in this case but he also has the height
that looks like the height of Dominador Molo, is that correct?

A — Yes and he had his shirt off and shorts on.

Q — And he has that looks and built of Dominador Molo, is that


correct?

A — Yes, that is his very appearance and could not be altered


anymore.

xxx xxx xxx

Court: In your entire testimony you did not mention of any


conversation of Dominador Molo as soon as he went up the house,
did you not talk to him, did you not converse with him?

A — No, because he suddenly rushed our house.

Q — And did he not ask you where is your husband and answered
there he is?

A — That was it he was also asking as he entered.

Q — So it is clear that you had a conversation with him?

A — Yes.

Q — And that is what you stated in the police?


A — Yes, sir. 43

(d) Re the dying declarations. Appellant claims that the same should not be accorded credence
because the victim could not have recognized his assailant, since as testified by Simeona he was
asleep when attacked. 44Again this is inaccurate. It was only at the initial stage of the attack when the
victim was asleep, because he was awakened by the first blows and stood up to defend himself Simeona
declared:

xxx xxx xxx

Fiscal Solis:

Q — How many times did you see Dominador bolo your husband on
the left arm?

A — I saw him boloed my husband twice on the left arm and when
my husband noticed that he was being hacked he reached for his
bolo with his right arm to which instance Dominador Molo noticing
that he was going to use a bolo Dominador hacked him again on the
right arm.

Q — Was your husband able to take hold of his bolo?

A — He was able to take hold of the handle only because at this


instance he was hacked by Dominador and so the bolo fell from his
hands.

Q — What hand did your husband use in taking hold of his bolo?

A — Right arm (sic: should be hand).

xxx xxx xxx

Q — But was your husband able to rise from where he was lying to
get that bolo?

A — He was able to rise but he was already weak because his left
arm was already wounded. 45

The statements of Venancio Identifying Dominador Molo as his assailant to Alejandro, his son, and
Roman, his neighbor are dying declarations. Alejandro Gapisa testified:

xxx xxx xxx

Q — What was the position when you found him there?

A — He was sitting.

Q — What else if any did you observe of your father?


A — When I came up he said, "Ando I have wounds because I was
boloed by Boslo. "

Q — What was his actual physical situation when he uttered these


words?

A — He was already weak, his body was weak.

Q — How did you observe that he was already very weak, that he
was already weak physically?

A — Because his wounds are big and many.

Q — Was it bleeding?

A — It was bleeding but the flow of the blood had declined since they
had been drained of blood.

Q — In your observation was he dying or not?

A — He was about to die.

Q — Now, since he had wounds what did you do with these injuries?

A — Upon arrival I tied his wounds.

Q — Which injuries did you bind, what did you tie?

A — The wounds in the arm because it was dangling.

Q — Which arm the left or the right?

A — The left.

Q — What about the right arm?

A — It had also many wounds.

Q — What was your father doing there, in that kitchen?

A — He was sitting.

Q — Was he doing anything else from sitting ?

A — I think he was defecating as a result of the pain.

Q — Did he have his pants on?

A — Yes. 46
Ad Roman Mangaring declared:

xxx xxx xxx

A — I was talking to him as to who boloed him.

Q — And his answer to you was Boslo?

A — Yes.

Q — He called his assailant as Boslo?

A — Yes. 47

Considering the nature and extent of the wounds, eight in all, Venancio must have realized the
seriousness of his condition and it can therefore be inferred that he made the incrimination under the
conciousness of impending death, 48 which, in fact, supervened barely 4-1/2 hours after he was boloed.

In resume then the credible and unimpeached testimonies of the victim's widow, Simeona Gapisa,
who was an eye-witness to the fatal incident, and that of Alejandro Gapisa, the victim's son, and
Roman Mangaring, a neighbor, who both testified on the ante-mortem statements of the victim,
establish the guilt of accused-appellant beyond reasonable doubt of the crime of murder qualified by
treachery, and aggravated by circumstances of dwelling, recidivism and reiteration, it appearing that
accused has been convicted by final judgment of murder, frustrated murder, grave slander, less
serious physical injuries, qualified trespass to dwelling and robbery, and, had served sentences for
said crimes.

We agree with the Solicitor General that appellant is not entitled the mitigating circumstance of
voluntary surrender. For in order that the same may be properly appreciated in favor of the accused,
it must appear that — a) he had not been actually arrested; b) he surrendered himself to a person in
authority or his agent; and c) his surrender is voluntary, which circumstances are not present in this
case. 49 For appellant admitted that on the day after the killing, police authorities surrounded his house
and arrested him. The fact that he did not try to escape or did not resist arrest after he was taken into
custody by the authorities, does not amount to voluntary surrender. 50

A word about the penalty. It appears that accused-appellant is an incorrigible criminal with clearly
anti-social proclivities against which the community has the need if not the right, to defend itself.
Where, as in this case, the reformative end of punishment seems to have failed in amending his
criminal tendencies — he was convicted for frustrated murder in Criminal Case V-542, Mindoro on
September 2, 1950; murder in Criminal Case No. 862, Romblon on July 27, 1961; grave slander in
Criminal Case No. V-669, Romblon, on June 5, 1957; less serious physical injuries, before the
Municipal Court of Romblon, Romblon in Criminal Case No. 839 on October 9, 1959; qualified by
trespass to dwelling, before the Municipal Court of Romblon, Romblon in - Criminal Case No. 845 on
February 25, 1960 and robbery, before the Court of First Instance of Davao in Criminal Case No.
9982 on March 1, 1967 — the imposition of the supreme penalty, is not only justified by the facts of
this case, but is required as a measure of social defense. Society had given accused-appellant
several chances. It would seem that compassion had not reformed him but had instead made him a
hardened criminal and a menace to his fellow men. To spare his life is to endanger the lives and
properties of others.

WHEREFORE, judgment is hereby affirmed IN TOTO, without pronouncement as to costs.


SO ORDERED.

Barredo, Makasiar, Antonio, Aquino, Concepcion Jr., Santos, Fernandez and Guerrero, JJ., concur.

Castro, C.J., Fernando and Teehankee, JJ., in the result.