A.M. No. 2026-CFI December 19, 1981
He was
NENITA DE VERA SUROZA, complainant,
vs.
JUDGE REYNALDO P. HONRADO of the
Court of First Instance of Rizal, Pasig
Branch 25 and EVANGELINE S. YUIPCO,
Deputy Clerk of Court, respondents.
AQUINO, J.:
Should disciplinary action be taken against
respondent judge for having admitted to
probate a will, which on its face
is void because it is written in English, a
language not known to the illiterate testatrix,
and which is probably a forged will because
she and the attesting witnesses did not
appear before the notary as admitted by the
notary himself?
That question arises under the pleadings filed
in the testate case and in the certiorari case in
the Court of Appeals which reveal the
following tangled strands of human
relationship:
Mauro Suroza, a corporal in the 45th Infantry
of the U.S. Army (Philippine Scouts), Fort
McKinley, married Marcelina Salvador in
1923 (p. 150, Spec. Proc. No. 7816). They
were childless. They reared a boy named
Agapito who used the surname Suroza and
who considered them as his parents as shown
in his 1945 marriage contract with Nenita de
Vera (p. 15, Rollo of CA-G.R. No. 08654-R; p.
148, Rollo of Testate Case showing that
Agapito was 5 years old when Mauro married
Marcelina in 1923).
Mauro died in 1942. Marcelina, as a veteran's
widow, became a pensioner of the Federal
Government. That explains why on her death
she had accumulated some cash in two banks.
Agapito and Nenita begot a child named Lilia
who became a medical technologist and went
abroad. Agapito also became a soldier.
disabled and his wife Nenita was appointed
as his guardian in 1953 when he was declared
an incompetent in Special Proceeding No.
1807 of the Court of First Instance of Rizal,
Pasig Branch I (p. 16, Rollo of CA-G.R. No.
08654-R).
In that connection, it should be noted that a
woman named Arsenia de la Cruz wanted also
to be his guardian in another proceeding.
Arsenia tried to prove that Nenita was living
separately from Agapito and that she (Nenita)
admitted to Marcelina that she was unfaithful
to Agapito (pp. 61-63, Record of testate case).
Judge Bienvenido A. Tan dismissed the
second guardianship proceeding and
confirmed Nenita's appointment as guardian
of Agapito (p. 16, Rollo of CA case). Agapito
has been staying in a veteran's hospital in San
Francisco or Palo Alto, California (p. 87,
Record).
On a date not indicated in the record, the
spouses Antonio Sy and Hermogena Talan
begot a child named Marilyn Sy, who, when a
few days old, was entrusted to Arsenia de la
Cruz (apparently a girl friend of Agapito) and
who was later delivered to Marcelina
Salvador Suroza who brought her up as a
supposed daughter of Agapito and as her
granddaughter (pp. 23-26, Rollo of CA-G.R.
No.SP-08654-R). Marilyn used the surname
Suroza. She stayed with Marcelina but was
not legally adopted by Agapito. She married
Oscar Medrano and is residing at 7666 J.B.
Roxas Street, Makati, apparently a neighbor of
Marina Paje, a resident of 7668 J.B. Roxas
Street.
Marcelina supposedly executed a notarial will
in Manila on July 23, 1973, when she was 73
years old. That will which is in English was
thumbmarked by her. She was illiterate. Her
letters in English to the Veterans
Administration were also thumbmarked by
her (pp. 38-39, CA Rollo). In that wig,
Marcelina bequeathed all her estate to her
supposed granddaughter Marilyn.
Marcelina died on November 15, 1974 at the
Veterans Hospital in Quezon City. At the time
of her death, she was a resident of 7374 San
Maximo Street, Olimpia, Makati, Rizal. She
owned a 150-square meter lot and house in
that place. She acquired the lot in 1966 (p.
134, Record of testate case).
On January 13, 1975, Marina Paje, alleged to
be a laundrywoman of Marcelina (P. 97, CA
Rollo) and the executrix in her will (the
alternate executrix was Juanita Macaraeg,
mother of Oscar, Marilyn's husband), filed
with the Court of First Instance of Rizal, Pasig
Branch 25, a petition for the probate of
Marcelina's alleged will. The case was
assigned to Judge Reynaldo P. Honrado.
As there was no opposition, Judge Honrado
commissioned his deputy clerk of court,
Evangeline S. Yuipco, to hear the evidence.
The transcripts of the stenographic notes
taken at the hearing before the deputy clerk
of court are not in the record.
In an order dated March 31, 1975, Judge
Honrado appointed Marina as administratrix.
On the following day, April 1, Judge Honrado
issued two orders directing the Merchants
Banking Corporation and the Bank of
America to allow Marina to withdraw the sum
of P10,000 from the savings accounts of
Marcelina S. Suroza and Marilyn Suroza and
requiring Corazon Castro, the custodian of the
passbooks, to deliver them to Marina.
Upon motion of Marina, Judge Honrado
issued another order dated April 11, 1975,
instructing a deputy sheriff to eject the
occupants of the testatrix's house, among
whom was Nenita V. Suroza, and to place
Marina in possession thereof.
That order alerted Nenita to the existence of
the testamentary proceeding for the
settlement of Marcelina's estate. She and the
other occupants of the decedent's house filed
on April 18 in the said proceeding a motion to
set aside the order of April 11 ejecting them.
They alleged that the decedent's son Agapito
was the sole heir of the deceased, that he has
a daughter named Lilia, that Nenita was
Agapito's guardian and that Marilyn was not
Agapito's daughter nor the decedent's
granddaughter (pp. 52-68, Record of testate
case). Later, they questioned the probate
court's jurisdiction to issue the ejectment
order.
In spite of the fact that Judge Honrado was
already apprised that persons, other than
Marilyn, were claiming Marcelina's estate, he
issued on April 23 an order probating her
supposed will wherein Marilyn was the
instituted heiress (pp. 74-77, Record).
On April 24, Nenita filed in the testate case an
omnibus petition "to set aside proceedings,
admit opposition with counter-petition for
administration and preliminary injunction".
Nenita in that motion reiterated her
allegation that Marilyn was a stranger to
Marcelina, that the will was not duly executed
and attested, that it was procured by means
of undue influence employed by Marina and
Marilyn and that the thumbmarks of the
testatrix were procured by fraud or trick.
Nenita further alleged that the institution of
Marilyn as heir is void because of the
preterition of Agapito and that Marina was
not qualified to act as executrix (pp. 83-91,
Record).
To that motion was attached an affidavit of
Zenaida A. Penaojas the housemaid of
Marcelina, who swore that the alleged will
was falsified (p. 109, Record).
Not content with her motion to set aside the
ejectment order (filed on April 18) and her
omnibus motion to set aside the proceedings
(filed on April 24), Nenita filed the next day,
April 25, an opposition to the probate of the
will and a counter-petition for letters of
administration. In that opposition, Nenita
assailed the due execution of the will and
stated the names and addresses of
Marcelina's intestate heirs, her nieces and
nephews (pp. 113-121, Record). Nenita was
not aware of the decree of probate dated
April 23, 1975.
To that opposition was attached an affidavit
of Dominga Salvador Teodocio, Marcelina's
niece, who swore that Marcelina never
executed a win (pp. 124-125, Record).
Marina in her answer to Nenita's motion to
set aside the proceedings admitted that
Marilyn was not Marcelina's granddaughter
but was the daughter of Agapito and Arsenia
de la Cruz and that Agapito was not
Marcelina's sonbut merely an anak-
anakan who was not legally adopted (p. 143,
Record).
Judge Honrado in his order of July 17, 1975
dismissed Nenita's counter-petition for the
issuance of letters of administration because
of the non-appearance of her counsel at the
hearing. She moved for the reconsideration of
that order.
In a motion dated December 5, 1975, for the
consolidation of all pending incidents, Nenita
V. Suroza reiterated her contention that the
alleged will is void because Marcelina did not
appear before the notary and because it is
written in English which is not known to her
(pp. 208-209, Record).
Judge Honrado in his order of June 8, 1976
"denied" the various incidents "raised" by
Nenita (p. 284, Record).
Instead of appealing from that order and the
order probating the wig, Nenita "filed a case
to annul" the probate proceedings (p. 332,
Record). That case, Civil Case No. 24276,
Suroza vs. Paje and Honrado (p. 398, Record),
was also assigned to Judge Honrado. He
dismissed it in his order of February 16, 1977
(pp. 398-402, Record).
Judge Honrado in his order dated December
22, 1977, after noting that the executrix had
delivered the estate to Marilyn, and that the
estate tax had been paid, closed the
testamentary proceeding.
About ten months later, in a verified
complaint dated October 12, 1978, filed in
this Court, Nenita charged Judge Honrado
with having probated the fraudulent will of
Marcelina. The complainant reiterated her
contention that the testatrix was illiterate as
shown by the fact that she affixed her
thumbmark to the will and that she did not
know English, the language in which the win
was written. (In the decree of probate Judge
Honrado did not make any finding that the
will was written in a language known to the
testatrix.)
Nenita further alleged that Judge Honrado, in
spite of his knowledge that the testatrix had a
son named Agapito (the testatrix's supposed
sole compulsory and legal heir), who was
preterited in the will, did not take into
account the consequences of such a
preterition.
Nenita disclosed that she talked several times
with Judge Honrado and informed him that
the testatrix did not know the executrix
Marina Paje, that the beneficiary's real name
is Marilyn Sy and that she was not the next of
kin of the testatrix.
Nenita denounced Judge Honrado for having
acted corruptly in allowing Marina and her
cohorts to withdraw from various banks the
deposits Marcelina.
She also denounced Evangeline S. Yuipco, the
deputy clerk of court, for not giving her
access to the record of the probate case by
alleging that it was useless for Nenita to
oppose the probate since Judge Honrado
would not change his decision. Nenita also
said that Evangeline insinuated that if she
(Nenita) had ten thousand pesos, the case
might be decided in her favor. Evangeline
allegedly advised Nenita to desist from
claiming the properties of the testatrix
because she (Nenita) had no rights thereto
and, should she persist, she might lose her
pension from the Federal Government.
Judge Honrado in his brief comment did not
deal specifically with the allegations of the
complaint. He merely pointed to the fact that
Nenita did not appeal from the decree of
probate and that in a motion dated July 6,
1976 she asked for a thirty day period within
which to vacate the house of the testatrix.
Evangeline S. Yuipco in her affidavit said that
she never talked with Nenita and that the
latter did not mention Evangeline in her letter
dated September 11, 1978 to President
Marcos.
Evangeline branded as a lie Nenita's
imputation that she (Evangeline) prevented
Nenita from having access to the record of the
testamentary proceeding. Evangeline was not
the custodian of the record. Evangeline "
strongly, vehemently and flatly denied"
Nenita's charge that she (Evangeline) said
that the sum of ten thousand pesos was
needed in order that Nenita could get a
favorable decision. Evangeline also denied
that she has any knowledge of Nenita's
pension from the Federal Government.
The 1978 complaint against Judge Honorado
was brought to attention of this Court in the
Court Administrator's memorandum of
September 25, 1980. The case was referred to
Justice Juan A. Sison of the Court of Appeals
for investigation, report and
recommendation. He submitted a report
dated October 7, 1981.
On December 14, 1978, Nenita filed in the
Court of Appeals against Judge Honrado a
petition for certiorari and prohibition
wherein she prayed that the will, the decree
of probate and all the proceedings in the
probate case be declared void.
Attached to the petition was the affidavit of
Domingo P. Aquino, who notarized the
will. He swore that the testatrix and the three
attesting witnesses did not appear before him
and that he notarized the will "just to
accommodate a brother lawyer on the
condition" that said lawyer would bring to the
notary the testatrix and the witnesses but the
lawyer never complied with his commitment.
The Court of Appeals dismissed the petition
because Nenita's remedy was an appeal and
her failure to do so did not entitle her to
resort to the special civil action of certiorari
(Suroza vs. Honrado, CA-G.R. No. SP-08654,
May 24, 1981).
Relying on that decision, Judge Honrado filed
on November 17, 1981 a motion to dismiss
the administrative case for having allegedly
become moot and academic.
We hold that disciplinary action should be
taken against respondent judge for his
improper disposition of the testate case
which might have resulted in a miscarriage of
justice because the decedent's legal heirs and
not the instituted heiress in the void win
should have inherited the decedent's estate.
A judge may be criminally liable or knowingly
rendering an unjust judgment or
interlocutory order or rendering a manifestly
unjust judgment or interlocutory order by
reason of inexcusable negligence or ignorance
(Arts. 204 to 206, Revised Penal Code).
Administrative action may be taken against a
judge of the court of first instance for serious
misconduct or inefficiency ( Sec. 67, Judiciary
Law). Misconduct implies malice or a
wrongful intent, not a mere error of
judgment. "For serious misconduct to exist,
there must be reliable evidence showing that
the judicial acts complained of were corrupt
or inspired by an intention to violate the law,
or were in persistent disregard of well-known
legal rules" (In re lmpeachment of Horrilleno,
43 Phil. 212, 214-215).
Inefficiency implies negligence,
incompetence, ignorance and carelessness. A
judge would be inexcusably negligent if he
failed to observe in the performance of his
duties that diligence, prudence and
circumspection which the law requires in the
rendition of any public service (In re Climaco,
Adm. Case No. 134-J, Jan. 21, 1974, 55 SCRA
107, 119).
In this case, respondent judge, on perusing
the will and noting that it was written in
English and was thumbmarked by an
obviously illiterate testatrix, could have
readily perceived that the will is void.
In the opening paragraph of the will, it was
stated that English was a language
"understood and known" to the testatrix. But
in its concluding paragraph, it was stated that
the will was read to the testatrix "and
translated into Filipino language". (p. 16,
Record of testate case). That could only mean
that the will was written in a language not
known to the illiterate testatrix and,
therefore, it is void because of the mandatory
provision of article 804 of the Civil Code that
every will must be executed in a language or
dialect known to the testator. Thus, a will
written in English, which was not known to
the Igorot testator, is void and was disallowed
(Acop vs. Piraso, 52 Phil. 660).
The hasty preparation of the will is shown in
the attestation clause and notarial
acknowledgment where Marcelina Salvador
Suroza is repeatedly referred to as the
"testator" instead of "testatrix".
Had respondent judge been careful and
observant, he could have noted not only the
anomaly as to the language of the will but also
that there was something wrong in instituting
the supposed granddaughter as sole heiress
and giving nothing at all to her supposed
father who was still alive.
Furthermore, after the hearing conducted by
respondent deputy clerk of court, respondent
judge could have noticed that the notary was
not presented as a witness.
In spite of the absence of an opposition,
respondent judge should have personally
conducted the hearing on the probate of the
will so that he could have ascertained
whether the will was validly executed.
Under the circumstances, we find his
negligence and dereliction of duty to be
inexcusable.
WHEREFORE, for inefficiency in handling the
testate case of Marcelina S. Suroza, a fine
equivalent to his salary for one month is
imposed on respondent judge (his
compulsory retirement falls on December 25,
1981).
The case against respondent Yuipco has
become moot and academic because she is no
longer employed in the judiciary. Since
September 1, 1980 she has been assistant city
fiscal of Surigao City. She is beyond this
Court's disciplinary jurisdiction (Peralta vs.
Firm Adm. Matter No. 2044-CFI November
21, 1980, 101 SCRA 225).
SO ORDERED.
Barredo (Chairman), De Castro, Ericta and
Escolin JJ., concur.
Concepcion Jr., J., is on leave.
Abad Santos, J., took no part.
G.R. No. L-13431 November 12, 1919
In re will of Ana Abangan.
GERTRUDIS ABANGAN, executrix-appellee,
vs.
ANASTACIA ABANGAN, ET AL., opponents-
appellants.
Filemon Sotto for appellants.
M. Jesus Cuenco for appellee.

AVANCEÑA, J.:
On September 19, 1917, the Court of First
Instance of Cebu admitted to probate Ana
Abangan's will executed July, 1916. From this
decision the opponent's appealed.
Said document, duly probated as Ana
Abangan's will, consists of two sheets, the
first of which contains all of the disposition of
the testatrix, duly signed at the bottom by
Martin Montalban (in the name and under the
direction of the testatrix) and by three
witnesses. The following sheet contains only
the attestation clause duly signed at the
bottom by the three instrumental witnesses.
Neither of these sheets is signed on the left
margin by the testatrix and the three
witnesses, nor numbered by letters; and
these omissions, according to appellants'
contention, are defects whereby the probate
of the will should have been denied. We are of
the opinion that the will was duly admitted to
probate.
In requiring that each and every sheet of the
will should also be signed on the left margin
by the testator and three witnesses in the
presence of each other, Act No. 2645 (which
is the one applicable in the case) evidently
has for its object (referring to the body of the
will itself) to avoid the substitution of any of
said sheets, thereby changing the testator's
dispositions. But when these dispositions are
wholly written on only one sheet signed at
the bottom by the testator and three
witnesses (as the instant case), their
signatures on the left margin of said sheet
would be completely purposeless. In
requiring this signature on the margin, the
statute took into consideration, undoubtedly,
the case of a will written on several sheets
and must have referred to the sheets which
the testator and the witnesses do not have to
sign at the bottom. A different interpretation
would assume that the statute requires that
this sheet, already signed at the bottom, be
signed twice. We cannot attribute to the
statute such an intention. As these signatures
must be written by the testator and the
witnesses in the presence of each other, it
appears that, if the signatures at the bottom
of the sheet guaranties its authenticity,
another signature on its left margin would be
unneccessary; and if they do not guaranty,
same signatures, affixed on another part of
same sheet, would add nothing. We cannot
assume that the statute regards of such
importance the place where the testator and
the witnesses must sign on the sheet that it
would consider that their signatures written
on the bottom do not guaranty the
authenticity of the sheet but, if repeated on
the margin, give sufficient security.
In requiring that each and every page of a will
must be numbered correlatively in letters
placed on the upper part of the sheet, it is
likewise clear that the object of Act No. 2645
is to know whether any sheet of the will has
been removed. But, when all the dispositive
parts of a will are written on one sheet only,
the object of the statute disappears because
the removal of this single sheet, although
unnumbered, cannot be hidden.
What has been said is also applicable to the
attestation clause. Wherefore, without
considering whether or not this clause is an
essential part of the will, we hold that in the
one accompanying the will in question, the
signatures of the testatrix and of the three
witnesses on the margin and the numbering
of the pages of the sheet are formalities not
required by the statute. Moreover, referring
specially to the signature of the testatrix, we
can add that same is not necessary in the
attestation clause because this, as its name
implies, appertains only to the witnesses and
not to the testator since the latter does not
attest, but executes, the will.
Synthesizing our opinion, we hold that in a
will consisting of two sheets the first of which
contains all the testamentary dispositions and
is signed at the bottom by the testator and
three witnesses and the second contains only
the attestation clause and is signed also at the
bottom by the three witnesses, it is not
necessary that both sheets be further signed
on their margins by the testator and the
witnesses, or be paged.
The object of the solemnities surrounding the
execution of wills is to close the door against
bad faith and fraud, to avoid substitution of
wills and testaments and to guaranty their
truth and authenticity. Therefore the laws on
this subject should be interpreted in such a
way as to attain these primordal ends. But, on
the other hand, also one must not lose sight of
the fact that it is not the object of the law to
restrain and curtail the exercise of the right to
make a will. So when an interpretation
already given assures such ends, any other
interpretation whatsoever, that adds nothing
but demands more requisites entirely
unnecessary, useless and frustative of the
testator's last will, must be
disregarded. lawphil.net
As another ground for this appeal, it is alleged
the records do not show that the testarix
knew the dialect in which the will is written.
But the circumstance appearing in the will
itself that same was executed in the city of
Cebu and in the dialect of this locality where
the testatrix was a neighbor is enough, in the
absence of any proof to the contrary, to
presume that she knew this dialect in which
this will is written.
For the foregoing considerations, the
judgment appealed from is hereby affirmed
with costs against the appellants. So ordered.
Arellano, C.J., Torres, Johnson, Araullo, Street
and Malcolm, JJ., concur.
G.R. No. L-19079 January 15, 1923
PRIMITIVO GONZALEZ Y
LAUREL, applicant-appellee, vs. JOVITA
LAUREL Y TAPIA,opponent-appellant.
Juan S. Rustia for appellant.
The appellee in his own behalf.
ROMUALDEZ, J.:
By an order dated December 16, 1921, the
Court of First Instance of Batangas allowed
the document, Exhibit A, to probate as the last
will and testament of the deceased Maria
Tapia, thus granting the petition of Primitivo
L. Gonzalez and overruling the opposition
presented by Jovita
Laurel.chanroblesvirtualawlibrary chanroble
s virtual law library
Jovita Laurel now appeals to this court from
that ruling of the court below, alleging that
court erred:
1. In Holding that Exhibit A, the supposed will
of the deceased Maria Tapia y Castillo, was
executed with the solemnities prescribed by
the law, notwithstanding that there was no
proof of the dialect known by the said
deceased and of the fact that it was the same
in which said Exhibit A was
written.chanroblesvirtualawlibrary chanrobl
es virtual law library
2. In not holding that the signatures of Maria
Tapia appearing in said Exhibit A had been
obtained through deceipt, surprise, fraud, and
in an illegal and improper
manner.chanroblesvirtualawlibrary chanrobl
es virtual law library
3. In not finding that said Exhibit A was
obtained through unlawful pressure,
influence and machinations of the applicant,
Primitivo L. Gonzalez, one of the legatees, in
connivance with Attorney Modesto
Castillo.chanroblesvirtualawlibrary chanroble
s virtual law library
4. In not finding that the deceased Maria
Tapia was physically and mentally
incapacitated at the time she is said to have
executed Exhibit
A.chanroblesvirtualawlibrary chanrobles
virtual law library
5. In declaring said Exhibit A valid and
authentic and allowing it to probate as the
will and testament of the deceased Maria
Tapia y Castillo.
Concerning the first error assigned, it appears
that the deceased Maria Tapia was a resident
of the Province of Batangas, a Tagalog region,
where said deceased had real properties for
several years. It also appears that she
requested Modesto Castillo to draw her will
in Tagalog. From the record taken as a whole,
a presumption arises that said Maria Tapia
knew the Tagalog dialect, which presumption
is now conclusive for not having been
overthrown nor
rebutted.chanroblesvirtualawlibrary chanrob
les virtual law library
The three following errors have reference to
the question whether or not the testatrix
acted voluntarily and with full knowledge in
executing and signing the will. The
preponderance of evidence in this respect is
that said document was executed and signed
by Maria Tapia voluntarily and with full
knowledge, without fraud, deceit, surprise, or
undue influence or machinations of anybody,
she being then mentally capacitated and free.
Such is the fact established by the evidence,
which we have carefully
examined.chanroblesvirtualawlibrary chanro
bles virtual law library
In connection with the evidence, our
attention was called to an irreconcilable
conflict between the transcript of an answer
of the witness Primitivo L. Gonzalez,
presented by the appellant as "Annex 1" to his
motion filed in this court (fol. 16 of the Rollo),
and the official transcript, in that while said
answer is " Yes, sir," according to the
transcript of the appellant, it is " Certainly,
that is not true," according to the official
transcript of the stenographic notes attached
to the record. But it is to be noted that at the
continuation of the hearing held on a
subsequent date, in which said witness
Primitivo L. Gonzalez was examined on this
contradiction, he said in the course of the
rebuttal evidence of the applicant: " No, sir. I
did not answer in that way. I did not take her
hand to make her sign. I did not by any means
answer that question to that effect. I very well
remember that fact, because it affects much
the probate of the will." (Fols. 56 and 57 of
transcript and documentary
evidence.) chanrobles virtual law library
It appearing from the record that the
document Exhibit A is the will of the deceased
Maria Tapia, executed with all the formalities
and solemnities required by the law, the trial
court did not commit any error in admitting it
to
probate.chanroblesvirtualawlibrary chanrobl
es virtual law library
For the purposes of this decision, we deem it
unnecessary to pass upon the question raised
by the appellee as to whether or not this
appeal was perfected within the time fixed by
the
law.chanroblesvirtualawlibrary chanrobles
virtual law library
The order appealed from is affirmed, with the
costs against the appellant. So ordered.
Araullo, C.J., Street, Malcolm, Avanceña,
Villamor, Ostrand and Johns, JJ., concur.
G.R. No. L-10907 June 29, 1957
AUREA MATIAS, Petitioner, vs. HON.
PRIMITIVO L. GONZALEZ, ETC., ET
AL.,Respondents.
J. Gonzales Orense for petitioner.
Venancio H. Aquino for respondents.
CONCEPCION, J.:
Petitioner Aurea Matias seeks a writ
of certiorari to annul certain orders of Hon.
Primitivo L. Gonzales, as Judge of the Court of
First Instance of Cavite, in connection with
Special Proceedings No. 5213 of said court,
entitled "Testate Estate of the Deceased
Gabina Raquel."chanrobles virtual law library
On May 15, 1952, Aurea Matias initiated said
special proceedings with a petition for the
probate of a document purporting to be the
last will and testament of her aunt, Gabina
Raquel, who died single on May 8, 1952, at
the age of 92 years. The heir to the entire
estate of the deceased - except the properties
bequeathed to her other niece and nephews,
namely, Victorina Salud, Santiago Salud,
Policarpio Salud, Santos Matias and Rafael
Matias - is, pursuant to said instrument,
Aurea Matias, likewise, appointed therein as
executrix thereof, without bond. Basilia Salud,
a first cousin of the deceased, opposed the
probate of her alleged will, and, after
appropriate proceedings, the court, presided
over by respondent Judge, issued an order,
dated February 8, 1956, sustaining said
opposition and denying the petition for
probate. Subsequently, Aurea Matias brought
the matter on appeal to this Court (G.R. No. L-
10751), where it is now pending
decision.chanroblesvirtualawlibrary chanrobl
es virtual law library
Meanwhile, or on February 17, 1956, Basilia
Salud moved for the dismissal of Horacio
Rodriguez, as special administrator of the
estate of the deceased, and the appointment,
in his stead of Ramon Plata. The motion was
set for hearing on February 23, 1956, on
which date the court postponed the hearing
to February 27, 1956. Although notified of
this order, Rodriguez did not appear on the
date last mentioned. Instead, he filed an
urgent motion praying for additional time
within which to answer the charges preferred
against him by Basilia Salud and for another
postponement of said hearing. This motion
was not granted, and Basilia Salud introduced
evidence in support of said charges,
whereupon respondent Judge by an order,
dated February 27, 1956, found Rodriguez
guilty of abuse of authority and gross
negligence, and, accordingly, relieved him as
special administrator of the estate of the
deceased and appointed Basilia Salud as
special administratrix thereof, to "be assisted
and advised by her niece, Miss Victorina
Salud," who "shall always act as aide,
interpreter and adviser of Basilia Salud." Said
order, likewise, provided that "Basilia Salud
shall be helped by Mr. Ramon Plata . . . who is
hereby appointed as co-
administrator."chanrobles virtual law library
On March 8, 1956, Aurea Matins asked that
said order of February 27, 1956, be set aside
and that she be appointed special co-
administratrix, jointly with Horacio
Rodriguez, upon the ground that Basilia Salud
is over eighty (80) years of age, totally blind
and physically incapacitated to perform the
duties of said office, and that said movant is
the universal heiress of the deceased and the
person appointed by the latter as executrix of
her alleged will. This motion was denied in an
order dated March 10, 1956, which
maintained "the appointment of the three
above named persons" - Basilia Salud, Ramon
Plata and Victorina Salud - "for the
management of the estate of the late Gabina
Raquel pending final decision on the probate
of the alleged will of said decedent." However,
on March 17, 1956, Basilia Salud tendered her
resignation as special administratrix by
reason of physical disability, due to old age,
and recommended the appointment, in her
place, of Victorina Salud. Before any action
could be taken thereon, or on March 21, 1956,
Aurea Matias sought a reconsideration of said
order of March 10, 1956. Moreover, on March
24, 1956, she expressed her conformity to
said resignation, but objected to the
appointment, in lieu of Basilia Salud, of
Victorina Salud, on account of her antagonism
to said Aurea Matias - she (Victorina Salud)
having been the principal and most interested
witness for the opposition to the probate of
the alleged will of the deceased - and
proposed that the administration of her
estate be entrusted to the Philippine National
Bank, the Monte de Piedad, the Bank of the
Philippine Islands, or any other similar
institution authorized by law therefor, should
the court be reluctant to appoint the movant
as special administratrix of said estate. This
motion for reconsideration was denied on
March 26,
1956.chanroblesvirtualawlibrary chanrobles
virtual law library
Shortly afterwards, or on June 18, 1956,
respondents Ramon Plata and Victorina Salud
requested authority to collect the rents due,
or which may be due, to the estate of the
deceased and to collect all the produce of her
lands, which was granted on June 23, 1956.
On June 27, 1956, said respondents filed
another motion praying for permission to sell
the palay of the deceased then deposited in
different rice mills in the province of Cavite,
which respondent judge granted on June 10,
1956. Later on, or on July 10, 1956, petitioner
instituted the present action against Judge
Gonzales, and Victorina Salud and Ramon
Plata, for the purpose of annulling the above
mentioned orders of respondent Judge, upon
the ground that the same had been issued
with grave abuse of discretion amounting to
lack or excess of
jurisdiction.chanroblesvirtualawlibrary chanr
obles virtual law library
In support of this pretense, it is argued that
petitioner should have preference in the
choice of special administratrix of the estate
of the decedent, she (petitioner) being the
universal heiress to said estate and, the
executrix appointed in the alleged will of the
deceased, that until its final disallowance -
which has not, as yet, taken place she has a
special interest in said estate, which must be
protected by giving representation thereto in
the management of said estate; that, apart
from denying her any such representation,
the management was given to persons partial
to her main opponent, namely, Basilia Salud,
inasmuch as Victorina Salud is allied to her
and Ramon Plata is a very close friend of one
of her (Basilia Salud's) attorneys; that Basilia
Salud was made special administratrix
despite her obvious unfitness for said office,
she being over eighty (80) years of age and
blind; that said disability is borne out by the
fact that on March 17, 1956, Basilia Salud
resigned as special administratrix upon such
ground; that the Rules of Court do not permit
the appointment of more than one special
administrator; that Horacio Rodriguez was
removed without giving petitioner a chance
to be heard in connection therewith; and that
Ramon Plata and Victorina Salud were
authorized to collect the rents due to the
deceased and the produce of her lands, as
well to sell her palay, without previous notice
to the petitioner
herein.chanroblesvirtualawlibrary chanroble
s virtual law library
Upon the other hand, respondents maintain
that respondent Judge acted with the scope of
his jurisdiction and without any abuse of
discretion; that petitioner can not validly
claim any special interest in the estate of the
deceased, because the probate of the alleged
will and testament of the latter - upon which
petitioner relies - has been denied; that
Horacio Rodriguez was duly notified of the
proceedings for his removal; and that
Victorina Salud and Ramon Plata have not
done anything that would warrant their
removal.chanroblesvirtualawlibrary chanrobl
es virtual law library
Upon a review of the record, we find
ourselves unable to sanction fully the acts of
respondent Judge, for the following
reasons:chanrobles virtual law library
1. Although Horacio Rodriguez had notice of
the hearing of the motion for his removal,
dated February 17, 1956, the record shows
that petitioner herein received copy of said
motion of February 24, 1956, or the date after
that set for the hearing thereof. Again, notice
of the order of respondent Judge, dated
February 23, 1956, postponing said hearing
to February 27, 1956, was not served on
petitioner
herein.chanroblesvirtualawlibrary chanroble
s virtual law library
2. In her motion of February 17, 1956, Basilia
Salud prayed for the dismissal of Horacio
Rodriguez, and the appointment of Ramon
Plata, as special administrator of said estate.
Petitioner had, therefore, no notice that her
main opponent, Basilia Salud, and the latter's
principal witness, Victorina Salud, would be
considered for the management of said. As a
consequence, said petitioner had no
opportunity to object to the appointment of
Basilia Salud as special administratrix, and of
Victorina Salud, as her assistant and adviser,
and the order of February 27, 1956, to this
effect, denied due process to said
petitioner.chanroblesvirtualawlibrary chanro
bles virtual law library
3. Said order was issued with evident
knowledge of the physical disability of Basilia
Salud. Otherwise respondent Judge would not
have directed that she "be assisted and
advised by her niece Victorina Salud," and
that the latter "shall always act as aide,
interpreter and adviser of Basilia
Salud."chanrobles virtual law library
4. Thus, respondent Judge, in effect,
appointed three (3) special administrators -
Basilia Salud, Victorina Salud and Ramon
Plata. Indeed, in the order of March 10, 1956,
respondent Judge maintained
"the appointment of the three (3) above-
named persons for the management of the
estate of the late Gabina Raquel."chanrobles
virtual law library
5. Soon after the institution of said Special
Proceedings No. 5213, an issue arose
between Aurea Matias and Basilia Salud
regarding the person to be appointed special
administrator of the estate of the deceased.
The former proposed Horacio Rodriguez,
whereas the latter urged the appointment of
Victorina Salud. By an order dated August 11,
1952, the Court, then presided over by Hon.
Jose Bernabe, Judge, decided the matter in
favor of Horacio Rodriguez and against
Victorina Salud, upon the ground that, unlike
the latter, who, as a pharmacist and employee
in the Santa Isabel Hospital, resides In the
City of Manila, the former, a practicing lawyer
and a former public prosecutor, and later,
mayor of the City of Cavite, is a resident
thereof. In other words, the order of resident
thereof. In other words, the order of
respondent Judge of February 27, 1956,
removing Rodriguez and appointing Victorina
Salud to the management of the estate,
amounted to a reversal of the aforementioned
order of Judge Bernabe of August 11,
1952.chanroblesvirtualawlibrary chanrobles
virtual law library
6. Although the probate of the alleged will
and testament of Gabina Raquel was denied
by respondent Judge, the order to this effect
is not, as yet, final and executory. It is pending
review on appeal taken by Aurea Matias. The
probate of said alleged will being still within
realm of legal possibility, Aurea Matias has -
as the universal heir and executrix designated
in said instrument - a special interest to
protect during the pendency of said appeal.
Thus, in the case of Roxas vs. Pecson * (46 Off.
Gaz., 2058), this Court held that a widow,
designated as executrix in the alleged will and
testament of her deceased husband, the
probate of which had denied in an order
pending appeal, "has . . . the same beneficial
interest after the decision of the court
disapproving the will, which is now pending
appeal,because the decision is not yet final and
may be reversed by the appellate
court."chanrobles virtual law library
7. The record shows that there are, at least
two (2) factions among the heirs of the
deceased, namely, one, represented by the
petitioner, and another, to which Basilia
Salud and Victorina Salud belong. Inasmuch
as the lower court had deemed it best to
appoint more than one special administrator,
justice and equity demands that both factions
be represented in the management of the
estate of the
deceased.chanroblesvirtualawlibrary chanrob
les virtual law library
The rule, laid down in Roxas vs.
Pecson (supra), to the effect that "only one
special administrator may be appointed to
administrator temporarily" the estate of the
deceased, must be considered in the light of
the facts obtaining in said case. The lower
court appointed therein one special
administrator for some properties forming
part of said estate, and a special
administratrix for other properties thereof.
Thus, there were two (2) separate and
independent special administrators. In the
case at bar there is only one (1)
special administration, the powers of which
shall be exercised jointly by two special co-
administrators. In short, the Roxas case is not
squarely in point. Moreover, there are
authorities in support of the power of courts
to appoint several special co-administrators
(Lewis vs. Logdan, 87 A. 750; Harrison vs.
Clark, 52 A. 514; In re Wilson's Estate, 61
N.Y.S. 2d., 49; Davenport vs. Davenport, 60 A.
379).chanroblesvirtualawlibrary chanrobles
virtual law library
Wherefore, the orders complained of are
hereby annulled and set aside. The lower
court should re-hear the matter of removal of
Horacio Rodriguez and appointment of
special administrators, after due notice to all
parties concerned, for action in conformity
with the views expressed herein, with costs
against respondents Victorina Salud and
Ramon Plata. It is so
ordered.chanroblesvirtualawlibrary chanrobl
es virtual law library
Paras, C.J., Bengzon, Padilla, Montemayor,
Reyes, A., Bautista Angelo, Labrador, Reyes,
J.B.L. and Felix, JJ., concur.
[G.R. No. L-4067. November 29, 1951.]
In the Matter of the Will of ANTERO
MERCADO, deceased. ROSARIO
GARCIA, Petitioner, v. JULIANA LACUESTA,
ET AL., Respondents.
Elviro L. Peralta and Hermenegildo A.
Prieto, for Petitioner.
Faustino B. Tobia, Juan I. Ines and
Federico Tacason, for Respondents.
SYLLABUS
1. WILLS; ATTESTATION CLAUSE; SIGNING
BY ANOTHER OF TESTATOR’S NAME AT
LATTER’S DIRECTION. — When the testator
expressly caused another to sign the former’s
name, this fact must be recited in the
attestation clause. Otherwise, the will is
fatally defective.
2. ID.; SIGNATURE OF TESTATOR; CROSS. —
Where the cross appearing on a will is not the
usual signature of the testator or even one of
the ways by which he signed his name, that
cross cannot be considered a valid signature.
DECISION
PARAS, C.J. :
This is an appeal from a decision of the Court
of Appeals disallowing the will of Antero
Mercado dated January 3, 1943. The will is
written in the Ilocano dialect and contains the
following attestation
clause:jgc:chanrobles.com.ph
"We, the undersigned, by these presents do
declare that the foregoing testament of
Antero Mercado was signed by himself and
also by us below his name and of this
attestation clause and that of the left margin
of the three pages thereof. Page three the
continuation of this attestation clause; this
will is written in Ilocano dialect which is
spoken and understood by the testator, and it
bears the corresponding number in letter
which compose of three pages and all of them
were signed in the presence of the testator
and witnesses, and the witnesses in the
presence of the testator and all and each and
every one of us witnesses.

"In testimony, whereof, we sign this
testament, this the third day of January, one
thousand nine hundred forty three, (1943)
A.D.
(Sgd.) "NUMERIANO EVANGELISTA (Sgd.)
ROSENDO CORTES
(Sgd.) BIBIANA ILLEGIBLE"
The will appears to have been signed by Atty.
Florentino Javier who wrote the name of
Antero Mercado, followed below by "A ruego
del testador" and the name of Florentino
Javier. Antero Mercado is alleged to have
written a cross immediately after his name.
The Court of Appeals, reversing the judgment
of the Court of First Instance of Ilocos Norte,
ruled that the attestation clause failed (1) to
certify that the will was signed on all the left
margins of the three pages and at the end of
the will by Atty. Florentino Javier at the
express request of the testator in the
presence of the testator and each and every
one of the witnesses; (2) to certify that after
the signing of the name of the testator by
Atty. Javier at the former’s request said
testator has written a cross at the end of his
name and on the left margin of the three
pages of which the will consists and at the
end thereof; (3) to certify that the three
witnesses signed the will in all the pages
thereon in the presence of the testator and of
each other.
In our opinion, the attestation clause is fatally
defective for failing to state that Antero
Mercado caused Atty. Florentino Javier to
write the testator’s name under his express
direction, as required by section 618 of the
Code of Civil Procedure. The herein petitioner
(who is appealing by way ofcertiorari from
the decision of the Court of Appeals) argues,
however, that there is no need for such recital
because the cross written by the testator after
his name is a sufficient signature and the
signature of Atty. Florentino Javier is a
surplusage. Petitioner’s theory is that the
cross is as much a signature as a thumbmark,
the latter having been held sufficient by this
Court in the cases of De Gala v. Gonzales and
Ona, 53 Phil., 104; Dolar v. Diancin, 55 Phil.,
479; Payad v. Tolentino, 62 Phil., 848; Neyra
v. Neyra, 76 Phil., 296 and Lopez v. Liboro, 81
Phil., 429.
It is not here pretended that the cross
appearing on the will is the usual signature of
Antero Mercado or even one of the ways by
which he signed his name. After mature
reflection, we are not prepared to liken the
mere sign of a cross to a thumbmark, and the
reason is obvious. The cross cannot and does
not have the trustworthiness of a
thumbmark.
What has been said makes it unnecessary for
us to determine whether there is a sufficient
recital in the attestation clause as to the
signing of the will by the testator in the
presence of the witnesses, and by the latter in
the presence of the testator and of each
other.
Wherefore, the appealed decision is hereby
affirmed, with costs against the petitioner. So
ordered.
Feria, Pablo, Bengzon, Padilla, Reyes, Jugo and
Bautista Angelo, JJ., concur.
G.R. No. 6845 September 1, 1914
YAP TUA, petitioner-appellee, vs. YAP CA
KUAN and YAP CA KUAN, objectors-
appellants.
Chicote and Miranda for appellants.
O'Brien and DeWitt for appellee.
JOHNSON, J.:
It appears from the record that on the 23d
day of August, 1909, one Perfecto Gabriel,
representing the petitioner, Yap Tua,
presented a petition in the Court of First
Instance of the city of Manila, asking that the
will of Tomasa Elizaga Yap Caong be admitted
to probate, as the last will and testament of
Tomasa Elizaga Yap Caong, deceased. It
appears that the said Tomasa Elizaga Yap
Caong died in the city of Manila on the 11th
day of August, 1909. Accompanying said
petition and attached thereto was the alleged
will of the deceased. It appears that the will
was signed by the deceased, as well as
Anselmo Zacarias, Severo Tabora, and
Timoteo
Paez.chanroblesvirtualawlibrary chanrobles
virtual law library
Said petition, after due notice was given, was
brought on for hearing on the 18th day of
September, 1909. Timoteo Paez declared that
he was 48 years of age; that he had known the
said Tomasa Elizaga Yap Caong; that she had
died on the 11th day of August, 1909; that
before her death she had executed a last will
and testament; that he was present at the
time of the execution of the same; that he had
signed the will as a witness; that Anselmo
Zacarias and Severo Tabora had also signed
said will as witnesses and that they had
signed the will in the presence of the
deceased.chanroblesvirtualawlibrary chanrob
les virtual law library
Pablo Agustin also declared as a witness and
said that he was 40 years of age; that he knew
Tomasa Elizaga Yap Caong during her
lifetime; that she died on the 11th day of
August, 1909, in the city of Manila; that before
her death she had executed a last will and
testament; that he was present at the time
said last will was executed; that there were
also present Timoteo Paez and Severo Tabora
and a person called Anselmo; that the said
Tomasa Elizaga Yap Caong signed the will in
the presence of the witnesses; that he had
seen her sign the will with his own eyes; that
the witnesses had signed the will in the
presence of the said Tomasa Elizaga Yap
Caong and in the presence of each other; that
the said Tomasa Elizaga Yap Caong signed the
will voluntarily, and in his judgment, she was
in the possession of her faculties; that there
were no threats or intimidation used to
induce her to sign the will; that she signed it
voluntarily.chanroblesvirtualawlibrary chanr
obles virtual law library
No further witnesses were called and there
was no further opposition presented to the
legalization of the said
will.chanroblesvirtualawlibrary chanrobles
virtual law library
After hearing the foregoing witnesses, the
Honorable A. S. Crossfield, judge, on the 29th
day of September, 1909, ordered that the last
will and testament of Tomasa Elizaga Yap
Caong be allowed and admitted to probate.
The will was attached to the record and
marked Exhibit A. The court further ordered
that one Yap Tua be appointed as executor of
the will, upon the giving of a bond, the
amount of which was to be fixed
later.chanroblesvirtualawlibrary chanrobles
virtual law library
From the record it appears that no further
proceedings were had until the 28th of
February, 1910, when Yap Ca Kuan and Yap
Ca Llu appeared and presented a petition,
alleging that they were interested in the
matters of the said will and desired to
intervene and asked that a guardian ad
litem be appointed to represent them in the
cause.chanroblesvirtualawlibrary chanrobles
virtual law library
On the 1st day of March, 1910, the court
appointed Gabriel La O as guardian ad
litem of said parties. Gabriel La O accepted
said appointment, took the oath of office and
entered upon the performance of his duties as
guardian ad litem of said parties. On the 2d
day of March, 1910, the said Gabriel La O
appeared in court and presented a motion in
which he alleged, in substance:chanrobles
virtual law library
First. That the will dated the 11th day of
August, 1909, and admitted to probate by
order of the court on the 29th day of
September, 1909, was null, for the following
reasons:
( a) Because the same had not been
authorized nor signed by the witnesses as the
law
prescribes.chanroblesvirtualawlibrary chanr
obles virtual law library
(b) Because at the time of the execution of the
will, the said Tomasa Elizaga Yap Caong was
not then mentally capacitated to execute the
same, due to her
sickness.chanroblesvirtualawlibrary chanrobl
es virtual law library
( c) Because her signature to the will had
been obtained through fraud and illegal
influence upon the part of persons who were
to receive a benefit from the same, and
because the said Tomasa Elizaga Yap Caong
had no intention of executing the same.
Second. That before the execution of the said
will, which they alleged to be null, the said
Tomasa Elizaga Yap Caong had executed
another will, with all the formalities required
by law, upon the 6th day of August,
1909.chanroblesvirtualawlibrary chanrobles
virtual law library
Third. That the said Yap Ca Kuan and Yap Ca
Llu were minors and that, even though they
had been negligent in presenting their
opposition to the legalization of the will, said
negligence was excusable, on account of their
age.chanroblesvirtualawlibrary chanrobles
virtual law library
Upon the foregoing facts the court was
requested to annul and set aside the order of
the 29th day of September, 1909, and to grant
to said minors an opportunity to present new
proof relating to the due execution of said
will. Said petition was based upon the
provisions of section 113 of the Code of
Procedure in Civil
Actions.chanroblesvirtualawlibrary chanrobl
es virtual law library
While it is not clear from the record,
apparently the said minors in their petition
for a new trial, attached to said petition the
alleged will of August 6, 1909, of the said
Tomasa Elizaga Yap Caong, and the affidavits
of Severo Tabora, Clotilde and Cornelia
Serrano.chanroblesvirtualawlibrary chanrobl
es virtual law library
Upon the 10th day of March, 1910, upon the
hearing of said motion for a rehearing, the
Honorable A. S. Crossfield, judge, granted said
motion and ordered that the rehearing should
take place upon the 18th day of March, 1910,
and directed that notice should be given to
the petitioners of said rehearing and to all
other persons interested in the will. At the
rehearing a number of witnesses were
examined.chanroblesvirtualawlibrary chanro
bles virtual law library
It will be remembered that one of the
grounds upon which the new trial was
requested was that the deceased, Tomasa
Elizaga Yap Caong, had not signed the will
(Exhibit A) of the 11th of August, 1909; that
in support of that allegation, the protestants,
during the rehearing, presented a witness
called Tomas Puzon. Puzon testified that he
was a professor and an expert in handwriting,
and upon being shown the will (of August 11,
1909) Exhibit A, testified that the name and
surname on Exhibit A, in his judgment were
written by two different hands, though the
given name is the same as that upon Exhibit 1
(the will of August 6, 1909), because he found
in the name "Tomasa" on Exhibit A a
similarity in the tracing to the "Tomasa" in
Exhibit 1; that comparing the surname on
Exhibit A with the surname on Exhibit 1 he
found that the character of the writing was
thoroughly distinguished and different by the
tracing and by the direction of the letters in
the said two exhibits; that from his
experience and observation he believed that
the name "Tomasa" and "Yap Caong,"
appearing in the signature on Exhibit A were
written by different
person.chanroblesvirtualawlibrary chanroble
s virtual law library
Puzon, being cross-examined with reference
to his capacity as an expert in handwriting,
testified that while he was a student in the
Ateneo de Manila, he had studied
penmanship; that he could not tell exactly
when that was, except that he had concluded
his course in the year 1882; that since that
time he had been a telegraph operator for
seventeen years and that he had acted as an
expert in hand- writing in the courts in the
provinces.chanroblesvirtualawlibrary chanro
bles virtual law library
Gabriel La O was called as a witness during
the rehearing and testified that he had drawn
the will of the 6th of August, 1909, at the
request of Tomasa Elizaga Yap Caong; that it
was drawn in accordance with her request
and under her directions; that she had signed
it; that the same had been signed by three
witnesses in her presence and in the presence
of each other; that the will was written in her
house; that she was sick and was lying in her
bed, but that she sat up to sign the will; that
she signed the will with great difficulty; that
she was signed in her right
mind.chanroblesvirtualawlibrary chanrobles
virtual law library
The said Severo Tabora was also called as a
witness again during the rehearing. He
testified that he knew Tomasa Elizaga Yap
Caong during her lifetime; that she was dead;
that his signature as a witness to Exhibit A
(the will of August 11, 1909) was placed there
by him; that the deceased, Tomasa Elizaga
Yap Caong, became familiar with the contents
of the will because she signed it before he
(the witness) did; that he did not know
whether anybody there told her to sign the
will or not; that he signed two bills; that he
did not know La O; that he did not believe
that Tomasa had signed the will (Exhibit A)
before he arrived at the house; that he was
not sure that he had seen Tomasa Elizaga Yap
Caong sign Exhibit A because there were
many people and there was a screen at the
door and he could not see; that he was called
a a witness to sign the second will and was
told by the people there that it was the same
as the first; that the will (Exhibit A) was on a
table, far from the patient, in the house but
outside the room where the patient was; that
the will was signed by Paez and himself; that
Anselmo Zacarias was there; that he was not
sure whether Anselmo Zacarias signed the
will or not; that he was not sure whether
Tomasa Elizaga Yap Caong could see the table
on which the will was written at the time it
was signed or not; that there were many
people in the house; that he remembered the
names of Pedro and Lorenzo; that he could
not remember the names of any others; that
the will remained on the table after he signed
it; that after he signed the will he went to the
room where Tomasa was lying; that the will
was left on the table outside; that Tomasa
was very ill; that he heard the people asking
Tomasa to sign the will after he was (the
witness) had signed it; that he saw Paez sign
the will, that he could not remember whether
Anselmo Zacarias had signed the will, because
immediately after he and Paez signed it, he
left because he was hungry; that the place
where the table was located was in the same
house, on the floor, about two steps down
from the floor on which Tomasa
was.chanroblesvirtualawlibrary chanrobles
virtual law library
Rufino R. Papa, was called as a witness for the
purpose of supporting the allegation that
Tomasa Elizaga Yap Caong was mentally
incapacitated to make the will dated August
11, 1909 (Exhibit A). Papa declared that he
was a physician; that he knew Tomasa Elizaga
Yap Caong; that he had treated her in the
month of August; that he visited her first on
the 8th day of August; that he visited her
again on the 9th and 10th days of August; that
on the first visit he found the sick woman
completely weak - very weak from her
sickness, in the third stage of tuberculosis;
that she was lying in bed; that on the first
visit he found her with but little sense, the
second day also, and on the third day she had
lost all her intelligence; that she died on the
11th of August; tat he was requested to issue
the death certificate; that when he asked her
(Tomasa) whether she was feeling any pain
or anything of that kind, she did not answer at
all; that she was in a condition of stupor,
induced, as he believed, by the stage of
uraemia from which she was
suffering.chanroblesvirtualawlibrary chanrob
les virtual law library
Anselmo Zacarias, who had signed the will of
August 11, 1909, was also called as a
witnesses during the rehearing. He testified
that he had known Tomasa Elizaga Yap Caong
since he was a child; that Tomasa was dead;
that he had written the will exhibit A; that it
was all in his writing except the last part,
which was written by Carlos Sobaco; that he
had written the will Exhibit A at the request
of the uncle of Tomasa; that Lorenzo, the
brother of the deceased, was the one who had
instructed him as to the terms of the will ;
that the deceased had not spoken to him
concerning the terms of the will; that the will
was written in the dining room of the
residence of the deceased; that Tomasa was
in another room different from that in which
the will was written; that the will was not
written in the presence of Tomasa; that he
signed the will as a witness in the room
where Tomasa was lying; that the other
witnesses signed the will in the same room
that when he went into the room where the
sick woman was (Tomasa Elizaga Yap Caong)
Lorenzo had the will in his hands; that when
Lorenzo came to the bed he showed the will
to his sister (Tomasa) and requested her to
sign it; that she was lying stretched out on the
bed and two women, who were taking care of
her, helped her to sit up, supporting her by
lacing their hands at her back; that when she
started to write her name, he withdrew from
the bed on account of the best inside the
room; when he came back again to the sick
bed the will was signed and was again in the
hands of Lorenzo; that he did not see Tomasa
sign the will because he withdrew from the
room; that he did not know whether Tomasa
had been informed of the contents of the will
or not; he supposed she must have read it
because Lorenzo turned the will over to her;
that when Lorenzo asked her to sign the will,
he did not know what she said - he could not
hear her voice; that he did not know whether
the sick woman was him sign the will or not;
that he believed that Tomasa died the next
day after the will had been signed; that the
other two witnesses, Timoteo Paez and
Severo Tabora, had signed the will in the
room with the sick woman; that he saw them
sign the will and that they saw him sign it;
that he was not sure whether the testatrix
could have seen them at the time they signed
the will or not; that there was a screen before
the bed; that he did not think that Lorenzo
had been giving instructions as to the
contents of the will; that about ten or fifteen
minutes elapsed from the time Lorenzo
handed the will to Tomasa before she started
to sign it; that the pen with which she signed
the will as given to her and she held
it.chanroblesvirtualawlibrary chanrobles
virtual law library
Clotilde Mariano testified that he was a
cigarette maker; that he knew Tomasa Elizaga
Yap Caong and that she was dead; that she
had made two wills; that the first one was
written by La O and the second by Zacarias;
that he was present at the time Zacarias
wrote the second one; that he was present
when the second will was taken to Tomasa
for signature; that Lorenzo had told Tomasa
that the second will was exactly like the first;
that Tomasa said she could not sign
it.chanroblesvirtualawlibrary chanrobles
virtual law library
On cross examination he testified that there
was a lot of visitors there; that Zacarias was
not there; that Paez and Tabora were there;
that he had told Tomasa that the second will
was exactly like the
first.chanroblesvirtualawlibrary chanrobles
virtual law library
During the rehearing Cornelia Serrano and
Pedro Francisco were also examined as
witnesses. There is nothing in their
testimony, however, which in our opinion is
important.chanroblesvirtualawlibrary chanro
bles virtual law library
In rebuttal Julia e la Cruz was called as a
witness. She testified that she was 19 years of
age; that she knew Tomasa Elizaga Yap Caong
during her lifetime; that she lived in the
house of Tomasa during the last week of her
illness; that Tomasa had made two wills; that
she was present when the second one was
executed; that a lawyer had drawn the will in
the dining room and after it had been drawn
and everything finished , it was taken to
where Doña Tomasa was, for her signature;
that it was taken to her by Anselmo Zacarias;
that she was present at the time Tomasa
signed the will that there were many other
people present also; that she did not see
Timoteo Paez there; that she saw Severo
Tabora; that Anselmo Zacarias was present;
that she did not hear Clotilde Mariano ask
Tomasa to sign the will; that she did not hear
Lorenzo say to Tomasa that the second will
was the same sa the first; that Tomasa asked
her to help her to sit up and to put a pillow to
her back when Zacarias gave her some paper
or document and asked her to sign it; that she
saw Tomasa take hold of the pen and try to
sign it but she did not see the place she signed
the document, for the reason that she left the
room; that she saw Tomasa sign the
document but did not see on what place on
the document she signed; and that a notary
public came the next morning; that Tomasa
was able to move about in the bed; that she
had seen Tomasa in the act of starting to
write her signature when she told her to get
her some
water.chanroblesvirtualawlibrary chanrobles
virtual law library
Yap Cao Quiang was also called as a witness
in rebuttal. He testified that he knew Tomasa
Elizaga Yap Caong and knew that she had
made a will; that he saw the will at the time it
was written; that he saw Tomasa sign it on
her head; that he did not hear Lorenzo ask
Tomasa to sign the will; that Lorenzo had
handed the will to Tomasa to sign; that he
saw the witnesses sign the will on a table
near the bed; that the table was outside the
curtain or screen and near the entrance to the
room where Tomasa was
lying.chanroblesvirtualawlibrary chanrobles
virtual law library
Lorenzo Yap Caong testified as a witness on
rebuttal. He said that he knew Anselmo
Zacarias and that Zacarias wrote the will of
Tomasa Elizaga Yap Caong; that Tomasa had
given him instructions; that Tomasa had said
that she sign the will; that the will was on a
table near the bed of Tomasa; that Tomasa,
from where she was lying in the bed, could
seethe table where the witnesses had signed
the
will.chanroblesvirtualawlibrary chanrobles
virtual law library
During the rehearing certain other witnesses
were also examined; in our opinion, however,
it is necessary to quote from them for the
reason that their testimony in no way affects
the preponderance of proof above
quoted.chanroblesvirtualawlibrary chanroble
s virtual law library
At the close of the rehearing the Honorable A.
S. Crossfield, judge, in an extended opinion,
reached the conclusion that the last will and
testament of Tomasa Elizaga Yap Caong,
which was attached to the record and marked
Exhibit A was the last will and testament of
the said Tomasa Elizaga Yap Caong and
admitted it to probate and ordered that the
administrator therefore appointed should
continue as such administrator. From that
order the protestants appealed to this court,
and made the following assignments of error:
I. The court erred in declaring that the will,
Exhibit A, was executed by the deceased
Tomasa Yap Caong, without the intervention
of any external influence on the part of other
persons.chanroblesvirtualawlibrary chanrobl
es virtual law library
II. The court erred in declaring that the
testator had clear knowledge and knew what
she was doing at the time of signing the
will.chanroblesvirtualawlibrary chanrobles
virtual law library
III. The court erred in declaring that the
signature of the deceased Tomasa Yap Caong
in the first will, Exhibit 1, is identical with that
which appears in the second will, Exhibit
A.chanroblesvirtualawlibrary chanrobles
virtual law library
IV. The court erred in declaring that the will,
Exhibit A, was executed in accordance with
the law.
With reference to the first assignment of
error, to wit, that undue influence was
brought to bear upon Tomasa Elizaga Yap
Caong in the execution of her will of August
11th, 1909 (Exhibit A), the lower court found
that no undue influence had been exercised
over the mind of the said Tomasa Elizaga Yap
Caong. While it is true that some of the
witnesses testified that the brother of
Tomasa, one Lorenzo, had attempted to
unduly influence her mind in the execution of
he will, upon the other hand, there were
several witnesses who testified that Lorenzo
did not attempt, at the time of the execution
of the will, to influence her mind in any way.
The lower court having had an opportunity to
see, to hear, and to note the witnesses during
their examination reached the conclusion that
a preponderance of the evidence showed that
no undue influence had been used. we find no
good reason in the record for reversing his
conclusions upon that
question.chanroblesvirtualawlibrary chanrob
les virtual law library
With reference to the second assignment of
error to wit, that Tomasa Elizaga Yap Caong
was not of sound mind and memory at the
time of the execution of the will, we find the
same conflict in the declarations of the
witnesses which we found with reference to
the undue influence. While the testimony of
Dr. Papa is very strong relating to the mental
condition of Tomasa Elizaga Yap Caong, yet,
nevertheless, his testimony related to a time
perhaps twenty-four hours before the
execution of the will in question (Exhibit A).
Several witnesses testified that at the time the
will was presented to her for her signature,
she was of sound mind and memory and
asked for a pen and ink and kept the will in
her possession for ten or fifteen minutes and
finally signed it. The lower court found that
there was a preponderance of evidence
sustaining the conclusion that Tomasa Elizaga
Yap Caong was of sound mind and memory
and in the possession of her faculties at the
time she signed this will. In view of the
conflict in the testimony of the witnesses and
the finding of the lower court, we do not feel
justified in reversing his conclusions upon
that
question.chanroblesvirtualawlibrary chanrob
les virtual law library
With reference to the third assignment of
error, to wit, that the lower court committed
an error in declaring that the signature of
Tomasa Elizaga Yap Caong, on her first will
(August 6, 1909, Exhibit 1), is identical with
that which appears in the second will (August
11, 1909, Exhibit A), it may be
said: chanrobles virtual law library
First. That whether or not Tomasa Elizaga
Yap Caong executed the will of August 6, 1909
(Exhibit 1), was not the question presented to
the court. The question presented was
whether or not she had duly executed the will
of August 11, 1909 (Exhibit
A).chanroblesvirtualawlibrary chanrobles
virtual law library
Second. There appears to be but little doubt
that Tomasa Elizaga Yap Caong did execute
the will of August 6, 1909. Several witnesses
testified to that fact. The mere fact, however,
that she executed a former will is no proof
that she did not execute a later will. She had a
perfect right, by will, to dispose of her
property, in accordance with the provisions
of law, up to the very last of moment her life.
She had a perfect right to change, alter,
modify or revoke any and all of her former
wills and to make a new one. Neither will the
fact that the new will fails to expressly revoke
all former wills, in any way sustain the charge
that she did not make the new
will.chanroblesvirtualawlibrary chanrobles
virtual law library
Third. In said third assignment of error there
is involved in the statement that "The
signature of Tomasa Elizaga Yap Caong, in her
first will (Exhibit 1) was not identical with
that which appears in her second will (Exhibit
A)" the inference that she had not signed the
second will and all the argument of the
appellants relating to said third assignment of
error is based upon the alleged fact that
Tomasa Elizaga Yap Caong did not sign
Exhibit A. Several witnesses testified that
they saw her write the name "Tomasa." One
of the witnesses testified that she had written
her full name. We are of the opinion, and we
think the law sustains our conclusion, that if
Tomasa Elizaga Yap Caong signed any portion
of her name tot he will, with the intention to
sign the same, that the will amount to a
signature. It has been held time and time
again that one who makes a will may sign the
same by using a mark, the name having been
written by others. If writing a mark simply
upon a will is sufficient indication of the
intention of the person to make and execute a
will, then certainly the writing of a portion or
all of her name ought to be accepted as a clear
indication of her intention to execute the will.
( Re Goods of Savory, 15 Jur., 1042; Addy vs.
Grix, 8 Ves. Jr., 504; Baker vs. Dening, 8 Ad.
and El., 94 Long vs. Zook, 13 Penn., 400;
Vernon vs. Kirk, 30 Penn., 218; Cozzen's Will,
61 Penn., 196; Re Goods of Emerson, L. R. 9
Ir., 443; Main vs. Ryder, 84 Penn.,
217.) chanrobles virtual law library
We find a very interesting case reported in
131 Pennsylvania State, 220 (6 L. R. A., 353),
and cited by the appellees, which was known
as "Knox's Appeal." In this case one Harriett S.
Knox died very suddenly on the 17th of
October, 1888, at the residence of her father.
After her death a paper was found in her
room, wholly in her handwriting, written
with a lead pencil, upon three sides of an
ordinary folded sheet of note paper and
bearing the signature simply of "Harriett." In
this paper the deceased attempted to make
certain disposition of her property. The will
was presented for probate. The probation
was opposed upon the ground that the same
did not contain the signature of the deceased.
That was the only question presented to the
court, whether the signature, in the form
above indicated, was a sufficient signature to
constitute said paper the last will and
testament of Harriett S. Knox. It was admitted
that the entire paper was in the handwriting
of the deceased. In deciding that question,
Justice Mitchell said:
The precise case of a signature by the first
name only, does not appear to have arisen
either in England or the United States; but the
principle on which the decisions already
referred to were based, especially those in
regard to signing by initials only, are equally
applicable to the present case, and additional
force is given to them by the decisions as to
what constitutes a binding signature to a
contract. (Palmer vs. Stephens, 1 Denio, 478;
Sanborne vs. Flager, 9 Alle, 474; Weston vs.
Myers, 33 Ill., 424; Salmon Falls, etc. Co. vs.
Goddard, 14 How. (U. S.), 446.)
The man who cannot write and who is
obliged to make his mark simply therefor,
upon the will, is held to "sign" as effectually as
if he had written his initials or his full name. It
would seem to be sufficient, under the law
requiring a signature by the person making a
will, to make his mark, to place his initials or
all or any part of his name thereon. In the
present case we think the proof shows, by a
large preponderance, that Tomasa Elizaga
Yap Caong, if she did not sign her full name,
did at least sign her given name "Tomasa,"
and that is sufficient to satisfy the
statute.chanroblesvirtualawlibrary chanroble
s virtual law library
With reference to the fourth assignment of
error, it may be said that the argument which
was preceded is sufficient to answer it
also.chanroblesvirtualawlibrary chanrobles
virtual law library
During the trial of the cause the protestants judgment of the lower court admitting said
made a strong effort to show that Tomasa will to probate is hereby affirmed with
Elizaga Yap Caong did not sign her name in costs.chanroblesvirtualawlibrarychanrobles
the presence of the witnesses and that they virtual law library
did not sign their names in their presence nor
in the presence of each other. Upon that Arellano, C. J., Torres, Carson, Moreland and
question there is considerable conflict of Araullo, JJ., concur.
proof. An effort was made to show that the
will was signed by the witnesses in one room G.R. No. L-6285 February 15, 1912
and by Tomasa in another. A plan of the room
or rooms in which the will was signed was PEDRO BARUT, Petitioner-Appellant,
presented as proof and it was shown that vs. FAUSTINO CABACUNGAN, ET
there was but one room; that one part of the AL., opponents-appellees.
room was one or two steps below the floor of
the other; that the table on which the A. M. Jimenez for appellant.
witnesses signed the will was located upon Ramon Querubin for appellees.
the lower floor of the room. It was also shown
that from the bed in which Tomasa was lying, MORELAND, J. :chanrobles virtual law library
it was possible for her to see the table on
which the witnesses signed the will. While the
This case is closely connected with the case
rule is absolute that one who makes a will
of Faustino Cabacungan vs. Pedro Barut and
must sign the same in the presence of the
another, No. 6284, 1 just decided by this court,
witnesses and that the witnesses must sign in
wherein there was an application for the
the presence of each other, as well as in the
probate of an alleged last will and testament
presence of the one making the will, yet,
of the same person the probate of whose will
nevertheless, the actual seeing of the
is involved in this
signatures made is not necessary. It is
suit.chanroblesvirtualawlibrary chanrobles
sufficient if the signatures are made where it
virtual law library
is possible for each of the necessary parties, if
they desire to see, may see the signatures
placed upon the This appeal arises out of an application on the
will.chanroblesvirtualawlibrary chanrobles part of Pedro Barut to probate the last will
virtual law library and testament of Maria Salomon, deceased. It
is alleged in the petition of the probate that
Maria Salomon died on the 7th day of
In cases like the present where there is so
November, 1908, in the pueblo of Sinait,
much conflict in the proof, it is very difficult
Ilocos Sur, leaving a last will and testament
for the courts to reach conclusions that are
bearing date March 2, 1907. Severo Agayan,
absolutely free from doubt. Great weight
Timotea Inoselda, Catalino Ragasa, and A. M.
must be given by appellate courts who do not
Jimenez are alleged to have been witnesses to
see or hear the witnesses, to the conclusions
the execution thereof. By the terms of said
of the trial courts who had that
will Pedro Barut received the larger part of
opportunity.chanroblesvirtualawlibrary chan
decedent's
robles virtual law library
property.chanroblesvirtualawlibrary chanrob
les virtual law library
Upon a full consideration of the record, we
find that a preponderance of the proof shows
The original will appears on page 3 of the
that Tomasa Elizaga Yap Caong did execute,
record and is in the Ilocano dialect. Its
freely and voluntarily, while she was in the
translation into Spanish appears at page 11.
right use of all her faculties, the will dated
After disposing of her property the testatrix
August 11, 1909 (Exhibit A). Therefore the
revoked all former wills by her made. She also
stated in said will that being unable to read or
write, the same had been read to her by
Ciriaco Concepcion and Timotea Inoselda and
that she had instructed Severo Agayan to sign
her name to it as
testatrix.chanroblesvirtualawlibrary chanrobl
es virtual law library
The probate of the will was contested and
opposed by a number of the relatives of the
deceased on various grounds, among them
that a later will had been executed by the
deceased. The will referred to as being a later
will is the one involved in case No. 6284
already referred to. Proceeding for the
probate of this later will were pending at the
time. The evidence of the proponents and of
the opponents was taken by the court in both
cases for the purpose of considering them
together.chanroblesvirtualawlibrary chanrobl
es virtual law library
In the case before us the learned probate
court found that the will was not entitled to
probate upon the sole ground that the
handwriting of the person who it is alleged
signed the name of the testatrix to the will for
and on her behalf looked more like the
handwriting of one of the other witnesses to
the will than that of the person whose
handwriting it was alleged to be. We do not
believe that the mere dissimilarity in writing
thus mentioned by the court is sufficient to
overcome the uncontradicted testimony of all
the witnesses to the will that the signature of
the testatrix was written by Severo Agayan at
her request and in her presence and in the
presence of all the witnesses to the will. It is
immaterial who writes the name of the
testatrix provided it is written at her request
and in her presence and in the presence of all
the witnesses to the execution of the
will.chanroblesvirtualawlibrary chanrobles
virtual law library
The court seems , by inference at least, to
have had in mind that under the law relating
to the execution of a will it is necessary that
the person who signs the name of the
testatrix must afterwards sign his own name;
and that, in view of the fact that, in the case at
bar, the name signed below that of the
testatrix as the person who signed her name,
being, from its appearance, not the same
handwriting as that constituting the name of
the testatrix, the will is accordingly invalid,
such fact indicating that the person who
signed the name of the testatrix failed to sign
his own. We do not believe that this
contention can be sustained. Section 618 of
the Code of Civil Procedure reads as follows:
No will, except as provided in the preceding
section, shall be valid to pass any estate, real
or personal, nor charge or effect the same,
unless it be in writing and signed by the
testator, or by the testator's name written by
some other person in his presence, and by his
expenses direction, and attested and
subscribed by three or more credible
witnesses in the presence of the testator and
of each. . . .
This is the important part of the section
under the terms of which the court holds that
the person who signs the name of the testator
for him must also sign his own name The
remainder of the section reads:
The attestation shall state the fact that the
testator signed the will, or caused it to be
signed by some other person, at his express
direction, in the presence of three witnesses,
and that they attested and subscribed it in his
presence and in the presence of each other.
But the absence of such form of attestation
shall not render the will invalid if it is proven
that the will was in fact signed and attested as
in this section provided.
From these provisions it is entirely clear that,
with respect to the validity of the will, it is
unimportant whether the person who writes
the name of the testatrix signs his own or not.
The important thing is that it clearly appears
that the name of the testatrix was signed at
her express direction in the presence of three
witnesses and that they attested and
subscribed it in her presence and in the
presence of each other. That is all the statute
requires. It may be wise as a practical matter
that the one who signs the testator's name
signs also his own; but that it is not essential
to the validity of the will. Whether one parson
or another signed the name of the testatrix in
this case is absolutely unimportant so far as
the validity of her will is concerned. The plain
wording of the statute shows that the
requirement laid down by the trial court, if it
did lay down, is absolutely unnecessary
under the law; and the reasons underlying
the provisions of the statute relating to the
execution of wills do not in any sense require
such a provision. From the standpoint of
language it is an impossibility to draw from
the words of the law the inference that the
persons who signs the name of the testator
must sign his own name also. The law
requires only three witnesses to a will, not
four.chanroblesvirtualawlibrary chanrobles
virtual law library
Nor is such requirement found in any other
branch of the law. The name of a person who
is unable to write may be signed by another
by express direction to any instrument
known to the law. There is no necessity
whatever, so far as the validity of the
instrument is concerned, for the person who
writes the name of the principal in the
document to sign his own name also. As a
matter of policy it may be wise that he do so
inasmuch as it would give such intimation as
would enable a person proving the document
to demonstrate more readily the execution by
the principal. But as a matter of essential
validity of the document, it is unnecessary.
The main thing to be established in the
execution of the will is the signature of the
testator. If that signature is proved, whether
it be written by himself or by another at his
request, it is none the less valid, and the fact
of such signature can be proved as perfectly
and as completely when the person signing
for the principal omits to sign his own name
as it can when he actually signs. To hold a will
invalid for the lack of the signature of the
person signing the name of the principal is, in
the particular case, a complete abrogation of
the law of wills, as it rejects and destroys a
will which the statute expressly declares is
valid.chanroblesvirtualawlibrary chanrobles
virtual law library
There have been cited three cases which it is
alleged are in opposition to the doctrine
which we have herein laid down. They are Ex
parte Santiago (4 Phil. Rep., 692), Ex
parteArcenas (4 Phil. Rep., 700), and
Guison vs. Concepcion (5 Phil. Rep., 551). Not
one of these cases is in point. The headnote in
the case last above stated gives an indication
of what all of cases are and the question
involved in each one of them. It says:
The testatrix was not able to sign it for her.
Instead of writing her name he wrote his own
upon the will. Held, That the will was not duly
executed.
All of the above cases are precisely of this
character. Every one of them was a case in
which the person who signed the will for the
testator wrote his own name to the will
instead of writing that of the testator, so that
the testator's name nowhere appeared
attached to the will as the one who executed
it. The case of Ex parte Arcenas contains the
following paragraph:
Where a testator does not know, or is unable
for any reason, to sign the will himself, it shall
be signed in the following manner: "John Doe,
by the testator, Richard Roe;" or in this form:
"By the testator. John Doe, Richard Roe." All
this must be written by the witness signing at
the request of the testator.
The only question for decision in that case, as
we have before stated, was presented by the
fact that the person who was authorized to
sign the name of the testator to the will
actually failed to sign such name but instead
signed his own thereto. The decision in that
case related only to that
question.chanroblesvirtualawlibrary chanrob
les virtual law library
Aside from the presentation of an alleged
subsequent will the contestants in this case
have set forth no reason whatever why the
will involved in the present litigation should
not be probated. The due and legal execution
of the will by the testatrix is clearly
established by the proofs in this case. Upon
the facts, therefore, the will must be probated.
As to the defense of a subsequent will, that is
resolved in case No. 6284 of which we have
already spoken. We there held that said later
will not the will of the
deceased.chanroblesvirtualawlibrary chanrob
les virtual law library
The judgment of the probate court must be
and is hereby reversed and that court is
directed to enter an order in the usual form
probating the will involved in this litigation
and to proceed with such probate in
accordance with law.
Arellano, C.J., Mapa and Carson, JJ., concur.
[G.R. No. L-15153. August 31, 1960.]
In the matter of the summary settlement
of the Estate of the deceased Anacleta
Abellana. LUCIO BALONAN, Petitioner-
Appellee, v. EUSEBIA ABELLANA, ET
AL., Oppositors-Appellants.
T. de los Santos for Appellee.
Climaco & Climaco for appellants.
SYLLABUS
1. WILLS; EXECUTION OF WILL; SUBSCRIBED
AT THE END BY SOME PERSON OTHER THAN
THE TESTATOR, INSUFFICIENT
COMPLIANCE WITH THE LAW. — A will
subscribed at the end thereof by some person
other than the testator in such manner that
the signature of said person appears above
the typewritten statement "Por la Testadora
Anacleta Abellana . . . Ciudad de Zamboanga,"
may not be admitted to probate for failure to
comply with the express requirement of the
law that the testator must himself sign the
will or that his name be affixed thereto by
some other person in his presence and by his
express direction.
DECISION
LABRADOR, J.:
Appeal from a decision of the Court of First
Instance of Zamboanga City admitting to
probate the will of one Anacleta Abellana. The
case was originally appealed to the Court of
Appeals where the following assignment of
error is made:jgc:chanrobles.com.ph
"The appellants respectfully submit that the
Trial Court erred in holding that the supposed
testament, Exh.’A’, was signed in accordance
with law; and in admitting the will to
probate."cralaw virtua1aw library
In view of the fact that the appeal involves a
question of law the said court has certified
the case to us.
The facts as found by the trial court are as
follows:jgc:chanrobles.com.ph
"It appears on record that the last Will and
Testament (Exhibit ‘A’), which is sought to be
probated, is written in the Spanish language
and consists of two (2) typewritten pages
(pages 4 and 5 of the record) double space.
The first page is signed by Juan Bello and
under his name appears typewritten ‘Por la
testadora Anacleta Abellana, residence
Certificate A-1167629, Enero 20, 1951,
Ciudad de Zamboanga’, and on the second
page appears the signature of the three (3)
instrumental witnesses Blas Sebastian,
Faustino Macaso and Rafael Ignacio, at the
bottom of which appears the signature of T.
de los Santos and below his signature is his
official designation as the notary public who
notarized the said testament. On the first
page on the left margin of the said instrument
also appear the signatures of the
instrumental witnesses. On the second page,
which is the last page of the said last Will and
Testament, also appears the signature of the
three (3) instrumental witnesses and on that
second page on the left margin appears the
signature of Juan Bello under whose name
appears handwritten the following phrase,
‘Por la Testadora Anacleta Abellana’. The will
is duly acknowledged before Notary Public,
Attorney Timoteo de los Santos." (Italics
supplied.)
The appeal squarely presents the following
issue: Does the signature of Dr. Juan A. Abello
above the typewritten statement "Por la
Testadora Anacleta Abellana . . ., Ciudad de
Zamboanga," comply with the requirements
of the law prescribing the manner in which a
will shall be executed?
The present law, Article 805 of the Civil Code,
in part provides as
follows:jgc:chanrobles.com.ph
"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." (Italics supplied.)
The clause "must be subscribed at the end
thereof by the testator himself or by the
testator’s name written by some other person
in his presence and by his express direction,"
is practically the same as the provisions of
Section 618 of the Code of Civil Procedure
(Act No. 190) which reads as
follows:jgc:chanrobles.com.ph
"No will, except as provided in the preceding
section shall be valid to pass any estate, real
or personal, nor charge or affect the same,
unless it be in writing and signed by the
testator, or by the testator’s name written by
some other person in his presence, and by his
express direction, and attested and
subscribed by three or more credible
witnesses in the presence of the testator and
of each other. . . ." (Italics supplied)
Note that the old law as well as the new
require that the testator himself sign the will,
or if he cannot do so, the testator’s name must
be written by some other person in his
presence and by his express direction.
Applying this provision this Court said in the
case of Ex Parte Pedro Arcenas, Et Al., 4 Phil.,
700:jgc:chanrobles.com.ph
"It will be noticed from the above-quoted
section 618 of the Code of Civil Procedure
that where the testator does not know how,
or is unable, to sign, it will not be sufficient
that one of the attesting witnesses signs the
will at the testator’s request, the notary
certifying thereto as provided in article 695 of
the Civil Code, which, in this respect, was
modified by section 618 above referred to,
but it is necessary that the testator’s name be
written by the person signing in his stead in
the place where he would have signed if he
knew how or was able so to do, and this in the
testator’s presence and by his express
direction; so that a will signed in a manner
different than that prescribed by law shall not
be valid and will not be allowed to be
probated.
"Where a testator does not know how, or is
unable for any reason, to sign the will himself,
it shall be signed in the following
manner:chanrob1es virtual 1aw library
‘John Doe by the testator, Richard Roe; or in
this form: ‘By the testator, John Doe, Richard
Roe.’ All this must be written by the witness
signing at the request of the testator.
"Therefore, under the law now in force, the
witness Naval A. Vidal should have written at
the bottom of the will the full name of the
testator and his own name in one of the forms
given above. He did not do so, however, and
this failure to comply with the law is a
substantial defect which affects the validity of
the will and precludes its allowance,
notwithstanding the fact that no one
appeared to oppose it."cralaw virtua1aw
library
The same ruling was laid down in the case of
Cuison v. Concepcion, 5 Phil., 552. In the case
of Barut v. Cabacungan, 21 Phil., 461, we held
that the important thing is that it clearly
appears that the name of the testatrix was
signed at her express direction; it is
unimportant whether the person who writes
the name of the testatrix signs his own or not.
Cases of the same import are as follows: (Ex
Parte Juan Ondevilla, 13 Phil., 479, Caluya v.
Domingo, 27 Phil., 330; Garcia v. Lacuesta, 90
Phil., 489).
In the case at bar the name of the testatrix,
Anacleta Abellana, does not appear written
under the will by said Abellana herself, or by
Dr. Juan Abello. There is, therefore, a failure
to comply with the express requirement in
the law that the testator must himself sign the
will, or that his name be affixed thereto by
Some other person in his presence and by his
express direction.
It appearing that the above provision of the
law has not been complied with, we are
constrained to declare that the said will of the
deceased Anacleta Abellana may not be
admitted to probate.
Wherefore, the decision appealed from is
hereby set aside and the petition for the
probate of the will denied. With costs against
petitioner.
Paras, C.J., Bengzon, Padilla, Concepción,
Reyes, J.B.L., Barrera, Gutierrez David, and
Dizon, JJ., concur.
G.R. No. L-4132 March 23, 1908
In the matter of the will of MARIA SIASON
Y MADRID DE LEDESMA, Probate
proceedings.
Antonio Jayme for petitioner.
TRACEY, J.:
In this special proceedings for the legalization
of a will, the Court of First Instance refused
probate on the ground that the instrument
was not subscribed by the witnesses in the
presence of the testatrix and of each other as
required by section 618 of the Code of Civil
Procedure.
The testatrix was ill and confined to her
house, the execution of the will taking place in
the sala where she lay upon a sofa. The
witnesses differ as to whether the testatrix
from where she lay could read what was
written at the table; and the first witness,
after signing, went away from the table. These
two circumstances do not impair the validity
of the execution of the will. The witnesses
being in the same apartment were all present
and the statute does not exact that either they
are the testator shall read what has been
written. Had one of the witnesses left the
room or placed himself so remotely therein as
to be cut off from actual participation in the
proceedings, then the subscription might not
have taken place in his presence within the
meaning of the law.
A second objection is suggested on this
appeal, that the signature to the instrument is
defective. It ends in this form:
At the request of Señora Maria Siason.
C
A
T
A
L
I
N
O
 G invalid if it is proven that the will was
E in fact signed and attested as in this
V section provided.
A
. The misunderstanding of this section arising
from the incorrect rendering of into Spanish
T. SILVERIO. in the official translation was corrected by
FRUCTUOSO G. what was said in the decision of this court
MORIN. in Ex parte Arcenas (4 Phil. Rep., 700).
Confusion has also come out of the different
R wording of the two clauses of this section, the
A one specifying the requisites of execution and
F the other those of the attestation clause. The
A concluding sentence of the section, however,
E makes clear that the former and not the latter
L is to control. Consequently the will must be
E signed by the testator, or by the testator's
S name written by some other person in his
P presence, and by his express direction," and
I the question presented in this case is, Are the
N words "Señora Maria Siason" her name
O written by some other person? They
S undoubtedly are her name, but occurring as
. they do after the words "at request of," it is
contended that they form a part of the recital
Section 618 of the Code of Civil Procedure and not a signature, the only signature being
reads as follows: the names of the witnesses themselves.
InGuison vs. Concepcion (5 Phil. Rep., 551) it
Requisites of will. — No will, except as was held that there was no signature,
provided in the preceding section, although the attestation clause which
shall be valid to pass any estate, real followed the will contained the name of the
of personal, nor charge or effect the testatrix and was thereafter signed by the
same, unless it be in writing and witnesses. The distinction between that case
signed by the testator, or by the and the present one is one of the extreme
testator's name written by some other nicety, and in the judgment of the writer of
person in his presence, and by his this opinion should not be attempted. The
express direction, and attested and majority of the court, however, are of the
subscribed by three or more credible opinion that the distinction is a tenable one
witnesses in the presence of the inasmuch as in the Concepcion will the name
testator and each of the other. The of the testatrix occurred only in the body of
attestation shall estate the fact that the attestation clause, after the first
the testator signed the will, or caused signatures of the witnesses, whereas in this
it to be signed by some other person, will it immediately follows the testament
at his express direction, in the itself and precedes the names of the
presence of three witnesses, and that witnesses.
they attested and subscribed it in his
presence and in the presence of each In sustaining this form of signature, this court
other. But the absence of such form of does not intend to qualify the decisions in Ex
attestation shall not render the will parte Santiago (4 Phil. Rep., 692), Ex
parte Arcenas, above quoted, or in Abaya vs.
Zalamero.1 In the Arcenas case the court
pointed out the correct formula for a
signature which ought to be followed, but did
not mean to exclude any other form
substantially equivalent.
The decision of the court below is reversed,
without costs, and that court is directed to
admit the instrument before it to probate as
the last will of the testatrix. So ordered.
Arellano, C.J., Torres and Mapa, JJ., concur.
Willard, J., concurs in the result.
BEATRIZ NERA, ET AL., Plaintiffs-Appellees,
v. NARCISA RIMANDO, Defendant-
Appellant.
Valerio Fontanilla and Andres Asprer
for Appellant.
Anacleto Diaz for Appellees.
SYLLABUS
1. EXECUTION OF WILLS; POSITION OF
TESTATOR AND WITNESS WHEN WILL IS
SUBSCRIBED. — The position of testator and
of the witnesses to a will, at the moment of
the subscription by each, must be such that
they may see each other sign if they choose to
do so.
2. ID.; ID.; SIGNING IN THE PRESENCE OF
EACH OTHER. — The question whether the
testator and the subscribing witnesses to an
alleged will sign the instrument in the
presence of each other does not depend upon
proof of the fact that their eyes were actually
cast upon the paper at the moment of its
subscription by each of them, but whether at
that moment existing conditions and the
position of the parties, with relation to each
other, were such that by merely casting their
eyes in the proper direction they could have
seen each other sign.
3. ID.; ID.; ID.; ONE WITNESS IN OUTER
ROOM WHEN WH.L IS SIGNED. — If one
subscribing witness to a will is shown to have
been in an outer room at the time when the
testator and the other witnesses attach their
signatures to the instrument in an inner
room, the will would be held invalid — the
attaching of the said signatures, under such
circumstances, not being done "in the
presence" of the witness in the outer room.
DECISION
CARSON, J.:
The only question raised by the evidence in
this case as to the due execution of the
instrument propounded as a will in the court
below, is whether one of the subscribing
witnesses was present in the small room
where it was executed at the time when the
testator and the other subscribing witnesses
attached their signatures; or whether at that
time he was outside, some eight or ten feet
away, in a large room connecting with the
smaller room by a doorway, across which was
hung a curtain which made it impossible for
one in the outside room to see the testator
and the other subscribing witnesses in the act
of attaching their signatures to the
instrument.
A majority of the members of the court is of
opinion that this subscribing witness was in
the small room with the testator and the
other subscribing witnesses at the time when
they attached their signatures to the
instrument, and this finding, of course,
disposes of the appeal and necessitates the
affirmance of the decree admitting the
document to probate as the last will and
testament of the deceased.
The trial judge does not appear to have
considered the determination of this question
of fact of vital importance in the
determination of this case, as he was of
opinion that under the doctrine laid down in
the case of Jaboneta v. Gustilo (5 Phil. Rep.,
541) the alleged fact that one of the
subscribing witnesses was in the outer room
when the testator and the other describing
witnesses signed the instrument in the inner
room, had it been proven, would not be
sufficient in itself to invalidate the execution
of the will. But we are unanimously of opinion
that had this subscribing witness been proven
to have been in the outer room at the time
when the testator and the other subscribing
witnesses attached their signatures to the
instrument in the inner room, it would have
been invalid as a will, the attaching of those
signatures under circumstances not being
done "in the presence" of the witness in the
outer room. This because the line of vision
from this witness to the testator and the
other subscribing witnesses would
necessarily have been impeded by the curtain
separating the inner from the outer one "at
the moment of inscription of each
signature."cralaw virtua1aw library
In the case just cited, on which the trial court
relied, we held that:jgc:chanrobles.com.ph
"The true test of presence of the testator and
the witnesses in the execution of a will is not
whether they actually saw each other sign,
but whether they might have been seen each
other sign, had they chosen to do so,
considering their mental and physical
condition and position with relation to each
other at the moment of inscription of each
signature."cralaw virtua1aw library
But it is especially to be noted that the
position of the parties with relation to each
other at the moment of the subscription of
each signature, must be such that they may
see each other sign if they choose to do so.
This, of course, does not mean that the
testator and the subscribing witnesses may
be held to have executed the instrument in
the presence of each other if it appears that
they would not have been able to see each
other sign at that moment, without changing
their relative positions or existing conditions.
The evidence in the case relied upon by the
trial judge discloses that "at the moment
when the witness Javellana signed the
document he was actually and physically
present and in such position with relation to
Jaboneta that he could see everything that
took place by merely casting his eyes in the
proper direction and without any physical
obstruction to prevent his doing so." And the
decision merely laid down the doctrine that
the question whether the testator and the
subscribing witnesses to an alleged will sign
the instrument in the presence of each other
does not depend upon proof of the fact that
their eyes were actually cast upon the paper
at the moment of its subscription by each of
them, but that at that moment existing
conditions and their position with relation to
each other were such that by merely casting
the eyes in the proper direction they could
have seen each other sign. To extend the
doctrine further would open the door to the
possibility of all manner of fraud,
substitution, and the like, and would defeat
the purpose for which this particular
condition is prescribed in the code as one of
the requisites in the execution of a will.
The decree entered by the court below
admitting the instrument propounded therein
to probate as the last will and testament of
Pedro Rimando, deceased, is affirmed with
costs of this instance against the Appellant.
Arellano, C.J., Mapa, Moreland and Trent, JJ.,
concur.
G.R. No. 1641 January 19, 1906
GERMAN JABONETA,Plaintiff-Appellant,
vs. RICARDO GUSTILO, ET AL.,Defendants-
Appellees.
Ledesma, Sumulong and Quintos for appellant.
Del-Pan, Ortigas and Fisher for appellees.
CARSON, J.:
In these proceedings probate was denied the
last will and testament of Macario Jaboneta,
deceased, because the lower court was of the
opinion from the evidence adduced at the
hearing that Julio Javellana, one of the
witnesses, did not attach his signature
thereto in the presence of Isabelo Jena,
another of the witnesses, as required by the
provisions of section 618 of the Code of Civil
Procedure.chanroblesvirtualawlibrary chanro
bles virtual law library
The following is a copy of the evidence which
appears of record on this particular point,
being a part of the testimony of the said
Isabeo Jena:
Q. 1641 Who first signed the
will? chanrobles virtual law library
A. 1641 I signed it first, and afterwards
Aniceto and the
others.chanroblesvirtualawlibrary chanroble
s virtual law library
Q. 1641 Who were those others to whom
you have just referred? chanrobles virtual law
library
A. 1641 After the witness Aniceto signed
the will I left the house, because I was in a
hurry, and at the moment when I was leaving
I saw Julio Javellana with the pen in his hand
in position ready to sign ( en actitud de
firmar). I believe he signed, because he was at
the table. . .
.chanroblesvirtualawlibrary chanrobles
virtual law library
Q. 1641 State positively whether Julio
Javellana did or did not sign as a witness to
the
will.chanroblesvirtualawlibrary chanrobles
virtual law library
A. 1641 I can't say certainly, because as I
was leaving the house I saw Julio Javellana
with the pen in his hand, in position ready to
sign. I believe he
signed.chanroblesvirtualawlibrary chanroble
s virtual law library
Q. 1641 Why do you believe Julio
Javellana signed? chanrobles virtual law
library
A. 1641 Because he had the pen in his
hand, which was resting on the paper, though
I did not actually see him
sign.chanroblesvirtualawlibrary chanrobles
virtual law library
Q. 1641 Explain this contradictory
statement.chanroblesvirtualawlibrary chanro
bles virtual law library
A. 1641 After I signed I asked
permission to leave, because I was in a hurry,
and while I was leaving Julio had already
taken the pen in his hand, as it appeared, for
the purpose of signing, and when I was near
the door I happened to turn my face and I saw
that he had his hand with the pen resting on
the will, moving it as if for the purpose of
signing.chanroblesvirtualawlibrary chanroble
s virtual law library
Q. 1641 State positively whether Julio
moved his hand with the pen as if for the
purpose of signing, or whether he was
signing chanrobles virtual law library
A. I believe he was signing.
The truth and accuracy of the testimony of
this witness does not seem to have been
questioned by any of the parties to the
proceedings, but the court, nevertheless,
found the following facts:
On the 26th day of December, 1901, Macario
Jaboneta executed under the following
circumstances the document in question,
which has been presented for probate as his
will:chanrobles virtual law library
Being in the house of Arcadio Jarandilla, in
Jaro, in this province, he ordered that the
document in question be written, and calling
Julio Javellana, Aniceto Jalbuena, and Isabelo
Jena as witnesses, executed the said
document as his will. They were all together,
and were in the room where Jaboneta was,
and were present when he signed the
document, Isabelo Jena signing afterwards as
a witness, at his request, and in his presence
and in the presence of the other two
witnesses. Aniceto Jalbuena then signed as a
witness in the presence of the testator, and in
the presence of the other two persons who
signed as witnesses. At that moment Isabelo
Jena, being in a hurry to leave, took his hat
and left the room. As he was leaving the
house Julio Javellana took the pen in his hand
and put himself in position to sign the will as
a witness, but did not sign in the presence of
Isabelo Jena; but nevertheless, after Jena had
left the room the said Julio Javellana signed as
a witness in the presence of the testator and
of the witness Aniceto Jalbuena.
We can not agree with so much of the above
finding of facts as holds that the signature of
Javellana was not signed in the presence of
Jena, in compliance with the provisions of
section 618 of the Code of Civil Procedure.
The fact that Jena was still in the room when
he saw Javellana moving his hand and pen in
the act of affixing his signature to the will,
taken together with the testimony of the
remaining witnesses which shows that
Javellana did in fact there and then sign his
name to the will, convinces us that the
signature was affixed in the presence of Jena.
The fact that he was in the act of leaving, and
that his back was turned while a portion of
the name of the witness was being written, is
of no importance. He, with the other
witnesses and the testator, had assembled for
the purpose of executing the testament, and
were together in the same room for that
purpose, and at the moment when the
witness Javellana signed the document he
was actually and physically present and in
such position with relation to Javellana that
he could see everything which took place by
merely casting his eyes in the proper
direction, and without any physical
obstruction to prevent his doing so, therefore
we are of opinion that the document was in
fact signed before he finally left the room.
The purpose of a statutory requirement that
the witness sign in the presence of the
testator is said to be that the testator may
have ocular evidence of the identity of the
instrument subscribed by the witness and
himself, and the generally accepted tests of
presence are vision and mental apprehension.
(See Am. & Eng. Enc. of Law, vol. 30, p. 599,
and cases there cited.)
In the matter of Bedell (2 Connoly (N.Y.), 328)
it was held that it is sufficient if the witnesses
are together for the purpose of witnessing the
execution of the will, and in a position to
actually see the testator write, if they choose
to do so; and there are many cases which lay
down the rule that the true test of vision is
not whether the testator actually saw the
witness sign, but whether he might have seen
him sign, considering his mental and physical
condition and position at the time of the
subscription. (Spoonemorevs. Cables, 66 Mo.,
579.)chanrobles virtual law library
The principles on which these cases rest and
the tests of presence as between the testator
and the witnesses are equally applicable in
determining whether the witnesses signed
the instrument in the presence of each other,
as required by the statute, and applying them
to the facts proven in these proceedings we
are of opinion that the statutory requisites as
to the execution of the instrument were
complied with, and that the lower court erred
in denying probate to the will on the ground
stated in the ruling appealed
from.chanroblesvirtualawlibrary chanrobles
virtual law library
We are of opinion from the evidence of record
that the instrument propounded in these
proceedings was satisfactorily proven to be
the last will and testament of Macario
Jaboneta, deceased, and that it should
therefore be admitted to
probate.chanroblesvirtualawlibrary chanrobl
es virtual law library
The judgment of the trial court is reversed,
without especial condemnation of costs, and
after twenty days the record will be returned
to the court form whence it came, where the
proper orders will be entered in conformance
herewith. So
ordered.chanroblesvirtualawlibrary chanrobl
es virtual law library

Arellano, C.J., Torres, Mapa, and

Johnson, JJ., concur.