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A.M. No. 2026-CFI December 19, 1981 abroad. Agapito also became a soldier.

He was
disabled and his wife Nenita was appointed
NENITA DE VERA SUROZA, complainant, as his guardian in 1953 when he was declared
vs. an incompetent in Special Proceeding No.
JUDGE REYNALDO P. HONRADO of the 1807 of the Court of First Instance of Rizal,
Court of First Instance of Rizal, Pasig Pasig Branch I (p. 16, Rollo of CA-G.R. No.
Branch 25 and EVANGELINE S. YUIPCO, 08654-R).
Deputy Clerk of Court, respondents.
In that connection, it should be noted that a
woman named Arsenia de la Cruz wanted also
to be his guardian in another proceeding.
AQUINO, J.: Arsenia tried to prove that Nenita was living
separately from Agapito and that she (Nenita)
Should disciplinary action be taken against admitted to Marcelina that she was unfaithful
respondent judge for having admitted to to Agapito (pp. 61-63, Record of testate case).
probate a will, which on its face
is void because it is written in English, a Judge Bienvenido A. Tan dismissed the
language not known to the illiterate testatrix, second guardianship proceeding and
and which is probably a forged will because confirmed Nenita's appointment as guardian
she and the attesting witnesses did not of Agapito (p. 16, Rollo of CA case). Agapito
appear before the notary as admitted by the has been staying in a veteran's hospital in San
notary himself? Francisco or Palo Alto, California (p. 87,
Record).
That question arises under the pleadings filed
in the testate case and in the certiorari case in On a date not indicated in the record, the
the Court of Appeals which reveal the spouses Antonio Sy and Hermogena Talan
following tangled strands of human begot a child named Marilyn Sy, who, when a
relationship: few days old, was entrusted to Arsenia de la
Cruz (apparently a girl friend of Agapito) and
Mauro Suroza, a corporal in the 45th Infantry who was later delivered to Marcelina
of the U.S. Army (Philippine Scouts), Fort Salvador Suroza who brought her up as a
McKinley, married Marcelina Salvador in supposed daughter of Agapito and as her
1923 (p. 150, Spec. Proc. No. 7816). They granddaughter (pp. 23-26, Rollo of CA-G.R.
were childless. They reared a boy named No.SP-08654-R). Marilyn used the surname
Agapito who used the surname Suroza and Suroza. She stayed with Marcelina but was
who considered them as his parents as shown not legally adopted by Agapito. She married
in his 1945 marriage contract with Nenita de Oscar Medrano and is residing at 7666 J.B.
Vera (p. 15, Rollo of CA-G.R. No. 08654-R; p. Roxas Street, Makati, apparently a neighbor of
148, Rollo of Testate Case showing that Marina Paje, a resident of 7668 J.B. Roxas
Agapito was 5 years old when Mauro married Street.
Marcelina in 1923).
Marcelina supposedly executed a notarial will
Mauro died in 1942. Marcelina, as a veteran's in Manila on July 23, 1973, when she was 73
widow, became a pensioner of the Federal years old. That will which is in English was
Government. That explains why on her death thumbmarked by her. She was illiterate. Her
she had accumulated some cash in two banks. letters in English to the Veterans
Administration were also thumbmarked by
Agapito and Nenita begot a child named Lilia her (pp. 38-39, CA Rollo). In that wig,
who became a medical technologist and went
Marcelina bequeathed all her estate to her other occupants of the decedent's house filed
supposed granddaughter Marilyn. on April 18 in the said proceeding a motion to
set aside the order of April 11 ejecting them.
Marcelina died on November 15, 1974 at the They alleged that the decedent's son Agapito
Veterans Hospital in Quezon City. At the time was the sole heir of the deceased, that he has
of her death, she was a resident of 7374 San a daughter named Lilia, that Nenita was
Maximo Street, Olimpia, Makati, Rizal. She Agapito's guardian and that Marilyn was not
owned a 150-square meter lot and house in Agapito's daughter nor the decedent's
that place. She acquired the lot in 1966 (p. granddaughter (pp. 52-68, Record of testate
134, Record of testate case). case). Later, they questioned the probate
court's jurisdiction to issue the ejectment
On January 13, 1975, Marina Paje, alleged to order.
be a laundrywoman of Marcelina (P. 97, CA
Rollo) and the executrix in her will (the In spite of the fact that Judge Honrado was
alternate executrix was Juanita Macaraeg, already apprised that persons, other than
mother of Oscar, Marilyn's husband), filed Marilyn, were claiming Marcelina's estate, he
with the Court of First Instance of Rizal, Pasig issued on April 23 an order probating her
Branch 25, a petition for the probate of supposed will wherein Marilyn was the
Marcelina's alleged will. The case was instituted heiress (pp. 74-77, Record).
assigned to Judge Reynaldo P. Honrado.
On April 24, Nenita filed in the testate case an
As there was no opposition, Judge Honrado omnibus petition "to set aside proceedings,
commissioned his deputy clerk of court, admit opposition with counter-petition for
Evangeline S. Yuipco, to hear the evidence. administration and preliminary injunction".
The transcripts of the stenographic notes Nenita in that motion reiterated her
taken at the hearing before the deputy clerk allegation that Marilyn was a stranger to
of court are not in the record. Marcelina, that the will was not duly executed
and attested, that it was procured by means
In an order dated March 31, 1975, Judge of undue influence employed by Marina and
Honrado appointed Marina as administratrix. Marilyn and that the thumbmarks of the
On the following day, April 1, Judge Honrado testatrix were procured by fraud or trick.
issued two orders directing the Merchants
Banking Corporation and the Bank of Nenita further alleged that the institution of
America to allow Marina to withdraw the sum Marilyn as heir is void because of the
of P10,000 from the savings accounts of preterition of Agapito and that Marina was
Marcelina S. Suroza and Marilyn Suroza and not qualified to act as executrix (pp. 83-91,
requiring Corazon Castro, the custodian of the Record).
passbooks, to deliver them to Marina.
To that motion was attached an affidavit of
Upon motion of Marina, Judge Honrado Zenaida A. Penaojas the housemaid of
issued another order dated April 11, 1975, Marcelina, who swore that the alleged will
instructing a deputy sheriff to eject the was falsified (p. 109, Record).
occupants of the testatrix's house, among
whom was Nenita V. Suroza, and to place Not content with her motion to set aside the
Marina in possession thereof. ejectment order (filed on April 18) and her
omnibus motion to set aside the proceedings
That order alerted Nenita to the existence of (filed on April 24), Nenita filed the next day,
the testamentary proceeding for the April 25, an opposition to the probate of the
settlement of Marcelina's estate. She and the will and a counter-petition for letters of
administration. In that opposition, Nenita Judge Honrado in his order dated December
assailed the due execution of the will and 22, 1977, after noting that the executrix had
stated the names and addresses of delivered the estate to Marilyn, and that the
Marcelina's intestate heirs, her nieces and estate tax had been paid, closed the
nephews (pp. 113-121, Record). Nenita was testamentary proceeding.
not aware of the decree of probate dated
April 23, 1975. About ten months later, in a verified
complaint dated October 12, 1978, filed in
To that opposition was attached an affidavit this Court, Nenita charged Judge Honrado
of Dominga Salvador Teodocio, Marcelina's with having probated the fraudulent will of
niece, who swore that Marcelina never Marcelina. The complainant reiterated her
executed a win (pp. 124-125, Record). contention that the testatrix was illiterate as
shown by the fact that she affixed her
Marina in her answer to Nenita's motion to thumbmark to the will and that she did not
set aside the proceedings admitted that know English, the language in which the win
Marilyn was not Marcelina's granddaughter was written. (In the decree of probate Judge
but was the daughter of Agapito and Arsenia Honrado did not make any finding that the
de la Cruz and that Agapito was not will was written in a language known to the
Marcelina's sonbut merely an anak- testatrix.)
anakan who was not legally adopted (p. 143,
Record). Nenita further alleged that Judge Honrado, in
spite of his knowledge that the testatrix had a
Judge Honrado in his order of July 17, 1975 son named Agapito (the testatrix's supposed
dismissed Nenita's counter-petition for the sole compulsory and legal heir), who was
issuance of letters of administration because preterited in the will, did not take into
of the non-appearance of her counsel at the account the consequences of such a
hearing. She moved for the reconsideration of preterition.
that order.
Nenita disclosed that she talked several times
In a motion dated December 5, 1975, for the with Judge Honrado and informed him that
consolidation of all pending incidents, Nenita the testatrix did not know the executrix
V. Suroza reiterated her contention that the Marina Paje, that the beneficiary's real name
alleged will is void because Marcelina did not is Marilyn Sy and that she was not the next of
appear before the notary and because it is kin of the testatrix.
written in English which is not known to her
(pp. 208-209, Record). Nenita denounced Judge Honrado for having
acted corruptly in allowing Marina and her
Judge Honrado in his order of June 8, 1976 cohorts to withdraw from various banks the
"denied" the various incidents "raised" by deposits Marcelina.
Nenita (p. 284, Record).
She also denounced Evangeline S. Yuipco, the
Instead of appealing from that order and the deputy clerk of court, for not giving her
order probating the wig, Nenita "filed a case access to the record of the probate case by
to annul" the probate proceedings (p. 332, alleging that it was useless for Nenita to
Record). That case, Civil Case No. 24276, oppose the probate since Judge Honrado
Suroza vs. Paje and Honrado (p. 398, Record), would not change his decision. Nenita also
was also assigned to Judge Honrado. He said that Evangeline insinuated that if she
dismissed it in his order of February 16, 1977 (Nenita) had ten thousand pesos, the case
(pp. 398-402, Record). might be decided in her favor. Evangeline
allegedly advised Nenita to desist from Attached to the petition was the affidavit of
claiming the properties of the testatrix Domingo P. Aquino, who notarized the
because she (Nenita) had no rights thereto will. He swore that the testatrix and the three
and, should she persist, she might lose her attesting witnesses did not appear before him
pension from the Federal Government. and that he notarized the will "just to
accommodate a brother lawyer on the
Judge Honrado in his brief comment did not condition" that said lawyer would bring to the
deal specifically with the allegations of the notary the testatrix and the witnesses but the
complaint. He merely pointed to the fact that lawyer never complied with his commitment.
Nenita did not appeal from the decree of
probate and that in a motion dated July 6, The Court of Appeals dismissed the petition
1976 she asked for a thirty day period within because Nenita's remedy was an appeal and
which to vacate the house of the testatrix. her failure to do so did not entitle her to
resort to the special civil action of certiorari
Evangeline S. Yuipco in her affidavit said that (Suroza vs. Honrado, CA-G.R. No. SP-08654,
she never talked with Nenita and that the May 24, 1981).
latter did not mention Evangeline in her letter
dated September 11, 1978 to President Relying on that decision, Judge Honrado filed
Marcos. on November 17, 1981 a motion to dismiss
the administrative case for having allegedly
Evangeline branded as a lie Nenita's become moot and academic.
imputation that she (Evangeline) prevented
Nenita from having access to the record of the We hold that disciplinary action should be
testamentary proceeding. Evangeline was not taken against respondent judge for his
the custodian of the record. Evangeline " improper disposition of the testate case
strongly, vehemently and flatly denied" which might have resulted in a miscarriage of
Nenita's charge that she (Evangeline) said justice because the decedent's legal heirs and
that the sum of ten thousand pesos was not the instituted heiress in the void win
needed in order that Nenita could get a should have inherited the decedent's estate.
favorable decision. Evangeline also denied
that she has any knowledge of Nenita's A judge may be criminally liable or knowingly
pension from the Federal Government. rendering an unjust judgment or
interlocutory order or rendering a manifestly
The 1978 complaint against Judge Honorado unjust judgment or interlocutory order by
was brought to attention of this Court in the reason of inexcusable negligence or ignorance
Court Administrator's memorandum of (Arts. 204 to 206, Revised Penal Code).
September 25, 1980. The case was referred to
Justice Juan A. Sison of the Court of Appeals Administrative action may be taken against a
for investigation, report and judge of the court of first instance for serious
recommendation. He submitted a report misconduct or inefficiency ( Sec. 67, Judiciary
dated October 7, 1981. Law). Misconduct implies malice or a
wrongful intent, not a mere error of
On December 14, 1978, Nenita filed in the judgment. "For serious misconduct to exist,
Court of Appeals against Judge Honrado a there must be reliable evidence showing that
petition for certiorari and prohibition the judicial acts complained of were corrupt
wherein she prayed that the will, the decree or inspired by an intention to violate the law,
of probate and all the proceedings in the or were in persistent disregard of well-known
probate case be declared void. legal rules" (In re lmpeachment of Horrilleno,
43 Phil. 212, 214-215).
Inefficiency implies negligence, judge could have noticed that the notary was
incompetence, ignorance and carelessness. A not presented as a witness.
judge would be inexcusably negligent if he
failed to observe in the performance of his In spite of the absence of an opposition,
duties that diligence, prudence and respondent judge should have personally
circumspection which the law requires in the conducted the hearing on the probate of the
rendition of any public service (In re Climaco, will so that he could have ascertained
Adm. Case No. 134-J, Jan. 21, 1974, 55 SCRA whether the will was validly executed.
107, 119).
Under the circumstances, we find his
In this case, respondent judge, on perusing negligence and dereliction of duty to be
the will and noting that it was written in inexcusable.
English and was thumbmarked by an
obviously illiterate testatrix, could have WHEREFORE, for inefficiency in handling the
readily perceived that the will is void. testate case of Marcelina S. Suroza, a fine
equivalent to his salary for one month is
In the opening paragraph of the will, it was imposed on respondent judge (his
stated that English was a language compulsory retirement falls on December 25,
"understood and known" to the testatrix. But 1981).
in its concluding paragraph, it was stated that
the will was read to the testatrix "and The case against respondent Yuipco has
translated into Filipino language". (p. 16, become moot and academic because she is no
Record of testate case). That could only mean longer employed in the judiciary. Since
that the will was written in a language not September 1, 1980 she has been assistant city
known to the illiterate testatrix and, fiscal of Surigao City. She is beyond this
therefore, it is void because of the mandatory Court's disciplinary jurisdiction (Peralta vs.
provision of article 804 of the Civil Code that Firm Adm. Matter No. 2044-CFI November
every will must be executed in a language or 21, 1980, 101 SCRA 225).
dialect known to the testator. Thus, a will
written in English, which was not known to SO ORDERED.
the Igorot testator, is void and was disallowed
(Acop vs. Piraso, 52 Phil. 660). Barredo (Chairman), De Castro, Ericta and
Escolin JJ., concur.
The hasty preparation of the will is shown in
the attestation clause and notarial Concepcion Jr., J., is on leave.
acknowledgment where Marcelina Salvador
Suroza is repeatedly referred to as the Abad Santos, J., took no part.
"testator" instead of "testatrix".
G.R. No. L-13431 November 12, 1919
Had respondent judge been careful and
observant, he could have noted not only the
In re will of Ana Abangan.
anomaly as to the language of the will but also
GERTRUDIS ABANGAN, executrix-appellee,
that there was something wrong in instituting
vs.
the supposed granddaughter as sole heiress
ANASTACIA ABANGAN, ET AL., opponents-
and giving nothing at all to her supposed
appellants.
father who was still alive.
Filemon Sotto for appellants.
Furthermore, after the hearing conducted by
M. Jesus Cuenco for appellee.
respondent deputy clerk of court, respondent
signed twice. We cannot attribute to the
statute such an intention. As these signatures
AVANCEÑA, J.: must be written by the testator and the
witnesses in the presence of each other, it
On September 19, 1917, the Court of First appears that, if the signatures at the bottom
Instance of Cebu admitted to probate Ana of the sheet guaranties its authenticity,
Abangan's will executed July, 1916. From this another signature on its left margin would be
decision the opponent's appealed. unneccessary; and if they do not guaranty,
same signatures, affixed on another part of
Said document, duly probated as Ana same sheet, would add nothing. We cannot
Abangan's will, consists of two sheets, the assume that the statute regards of such
first of which contains all of the disposition of importance the place where the testator and
the testatrix, duly signed at the bottom by the witnesses must sign on the sheet that it
Martin Montalban (in the name and under the would consider that their signatures written
direction of the testatrix) and by three on the bottom do not guaranty the
witnesses. The following sheet contains only authenticity of the sheet but, if repeated on
the attestation clause duly signed at the the margin, give sufficient security.
bottom by the three instrumental witnesses.
Neither of these sheets is signed on the left In requiring that each and every page of a will
margin by the testatrix and the three must be numbered correlatively in letters
witnesses, nor numbered by letters; and placed on the upper part of the sheet, it is
these omissions, according to appellants' likewise clear that the object of Act No. 2645
contention, are defects whereby the probate is to know whether any sheet of the will has
of the will should have been denied. We are of been removed. But, when all the dispositive
the opinion that the will was duly admitted to parts of a will are written on one sheet only,
probate. the object of the statute disappears because
the removal of this single sheet, although
In requiring that each and every sheet of the unnumbered, cannot be hidden.
will should also be signed on the left margin
by the testator and three witnesses in the What has been said is also applicable to the
presence of each other, Act No. 2645 (which attestation clause. Wherefore, without
is the one applicable in the case) evidently considering whether or not this clause is an
has for its object (referring to the body of the essential part of the will, we hold that in the
will itself) to avoid the substitution of any of one accompanying the will in question, the
said sheets, thereby changing the testator's signatures of the testatrix and of the three
dispositions. But when these dispositions are witnesses on the margin and the numbering
wholly written on only one sheet signed at of the pages of the sheet are formalities not
the bottom by the testator and three required by the statute. Moreover, referring
witnesses (as the instant case), their specially to the signature of the testatrix, we
signatures on the left margin of said sheet can add that same is not necessary in the
would be completely purposeless. In attestation clause because this, as its name
requiring this signature on the margin, the implies, appertains only to the witnesses and
statute took into consideration, undoubtedly, not to the testator since the latter does not
the case of a will written on several sheets attest, but executes, the will.
and must have referred to the sheets which
the testator and the witnesses do not have to Synthesizing our opinion, we hold that in a
sign at the bottom. A different interpretation will consisting of two sheets the first of which
would assume that the statute requires that contains all the testamentary dispositions and
this sheet, already signed at the bottom, be is signed at the bottom by the testator and
three witnesses and the second contains only Juan S. Rustia for appellant.
the attestation clause and is signed also at the The appellee in his own behalf.
bottom by the three witnesses, it is not
necessary that both sheets be further signed ROMUALDEZ, J.:
on their margins by the testator and the
witnesses, or be paged. By an order dated December 16, 1921, the
Court of First Instance of Batangas allowed
The object of the solemnities surrounding the the document, Exhibit A, to probate as the last
execution of wills is to close the door against will and testament of the deceased Maria
bad faith and fraud, to avoid substitution of Tapia, thus granting the petition of Primitivo
wills and testaments and to guaranty their L. Gonzalez and overruling the opposition
truth and authenticity. Therefore the laws on presented by Jovita
this subject should be interpreted in such a Laurel.chanroblesvirtualawlibrary chanroble
way as to attain these primordal ends. But, on s virtual law library
the other hand, also one must not lose sight of
the fact that it is not the object of the law to Jovita Laurel now appeals to this court from
restrain and curtail the exercise of the right to that ruling of the court below, alleging that
make a will. So when an interpretation court erred:
already given assures such ends, any other
interpretation whatsoever, that adds nothing 1. In Holding that Exhibit A, the supposed will
but demands more requisites entirely of the deceased Maria Tapia y Castillo, was
unnecessary, useless and frustative of the executed with the solemnities prescribed by
testator's last will, must be the law, notwithstanding that there was no
disregarded. lawphil.net proof of the dialect known by the said
deceased and of the fact that it was the same
As another ground for this appeal, it is alleged in which said Exhibit A was
the records do not show that the testarix written.chanroblesvirtualawlibrary chanrobl
knew the dialect in which the will is written. es virtual law library
But the circumstance appearing in the will
itself that same was executed in the city of 2. In not holding that the signatures of Maria
Cebu and in the dialect of this locality where Tapia appearing in said Exhibit A had been
the testatrix was a neighbor is enough, in the obtained through deceipt, surprise, fraud, and
absence of any proof to the contrary, to in an illegal and improper
presume that she knew this dialect in which manner.chanroblesvirtualawlibrary chanrobl
this will is written. es virtual law library

For the foregoing considerations, the 3. In not finding that said Exhibit A was
judgment appealed from is hereby affirmed obtained through unlawful pressure,
with costs against the appellants. So ordered. influence and machinations of the applicant,
Primitivo L. Gonzalez, one of the legatees, in
Arellano, C.J., Torres, Johnson, Araullo, Street connivance with Attorney Modesto
and Malcolm, JJ., concur. Castillo.chanroblesvirtualawlibrary chanroble
s virtual law library

G.R. No. L-19079 January 15, 1923 4. In not finding that the deceased Maria
Tapia was physically and mentally
PRIMITIVO GONZALEZ Y incapacitated at the time she is said to have
LAUREL, applicant-appellee, vs. JOVITA executed Exhibit
LAUREL Y TAPIA,opponent-appellant.
A.chanroblesvirtualawlibrary chanrobles continuation of the hearing held on a
virtual law library subsequent date, in which said witness
Primitivo L. Gonzalez was examined on this
5. In declaring said Exhibit A valid and contradiction, he said in the course of the
authentic and allowing it to probate as the rebuttal evidence of the applicant: " No, sir. I
will and testament of the deceased Maria did not answer in that way. I did not take her
Tapia y Castillo. hand to make her sign. I did not by any means
answer that question to that effect. I very well
Concerning the first error assigned, it appears remember that fact, because it affects much
that the deceased Maria Tapia was a resident the probate of the will." (Fols. 56 and 57 of
of the Province of Batangas, a Tagalog region, transcript and documentary
where said deceased had real properties for evidence.) chanrobles virtual law library
several years. It also appears that she
requested Modesto Castillo to draw her will It appearing from the record that the
in Tagalog. From the record taken as a whole, document Exhibit A is the will of the deceased
a presumption arises that said Maria Tapia Maria Tapia, executed with all the formalities
knew the Tagalog dialect, which presumption and solemnities required by the law, the trial
is now conclusive for not having been court did not commit any error in admitting it
overthrown nor to
rebutted.chanroblesvirtualawlibrary chanrob probate.chanroblesvirtualawlibrary chanrobl
les virtual law library es virtual law library

The three following errors have reference to For the purposes of this decision, we deem it
the question whether or not the testatrix unnecessary to pass upon the question raised
acted voluntarily and with full knowledge in by the appellee as to whether or not this
executing and signing the will. The appeal was perfected within the time fixed by
preponderance of evidence in this respect is the
that said document was executed and signed law.chanroblesvirtualawlibrary chanrobles
by Maria Tapia voluntarily and with full virtual law library
knowledge, without fraud, deceit, surprise, or
undue influence or machinations of anybody, The order appealed from is affirmed, with the
she being then mentally capacitated and free. costs against the appellant. So ordered.
Such is the fact established by the evidence,
which we have carefully Araullo, C.J., Street, Malcolm, Avanceña,
examined.chanroblesvirtualawlibrary chanro Villamor, Ostrand and Johns, JJ., concur.
bles virtual law library
G.R. No. L-10907 June 29, 1957
In connection with the evidence, our
attention was called to an irreconcilable AUREA MATIAS, Petitioner, vs. HON.
conflict between the transcript of an answer PRIMITIVO L. GONZALEZ, ETC., ET
of the witness Primitivo L. Gonzalez, AL.,Respondents.
presented by the appellant as "Annex 1" to his
motion filed in this court (fol. 16 of the Rollo), J. Gonzales Orense for petitioner.
and the official transcript, in that while said Venancio H. Aquino for respondents.
answer is " Yes, sir," according to the
transcript of the appellant, it is " Certainly, CONCEPCION, J.:
that is not true," according to the official
transcript of the stenographic notes attached Petitioner Aurea Matias seeks a writ
to the record. But it is to be noted that at the of certiorari to annul certain orders of Hon.
Primitivo L. Gonzales, as Judge of the Court of negligence, and, accordingly, relieved him as
First Instance of Cavite, in connection with special administrator of the estate of the
Special Proceedings No. 5213 of said court, deceased and appointed Basilia Salud as
entitled "Testate Estate of the Deceased special administratrix thereof, to "be assisted
Gabina Raquel."chanrobles virtual law library and advised by her niece, Miss Victorina
Salud," who "shall always act as aide,
On May 15, 1952, Aurea Matias initiated said interpreter and adviser of Basilia Salud." Said
special proceedings with a petition for the order, likewise, provided that "Basilia Salud
probate of a document purporting to be the shall be helped by Mr. Ramon Plata . . . who is
last will and testament of her aunt, Gabina hereby appointed as co-
Raquel, who died single on May 8, 1952, at administrator."chanrobles virtual law library
the age of 92 years. The heir to the entire
estate of the deceased - except the properties On March 8, 1956, Aurea Matins asked that
bequeathed to her other niece and nephews, said order of February 27, 1956, be set aside
namely, Victorina Salud, Santiago Salud, and that she be appointed special co-
Policarpio Salud, Santos Matias and Rafael administratrix, jointly with Horacio
Matias - is, pursuant to said instrument, Rodriguez, upon the ground that Basilia Salud
Aurea Matias, likewise, appointed therein as is over eighty (80) years of age, totally blind
executrix thereof, without bond. Basilia Salud, and physically incapacitated to perform the
a first cousin of the deceased, opposed the duties of said office, and that said movant is
probate of her alleged will, and, after the universal heiress of the deceased and the
appropriate proceedings, the court, presided person appointed by the latter as executrix of
over by respondent Judge, issued an order, her alleged will. This motion was denied in an
dated February 8, 1956, sustaining said order dated March 10, 1956, which
opposition and denying the petition for maintained "the appointment of the three
probate. Subsequently, Aurea Matias brought above named persons" - Basilia Salud, Ramon
the matter on appeal to this Court (G.R. No. L- Plata and Victorina Salud - "for the
10751), where it is now pending management of the estate of the late Gabina
decision.chanroblesvirtualawlibrary chanrobl Raquel pending final decision on the probate
es virtual law library of the alleged will of said decedent." However,
on March 17, 1956, Basilia Salud tendered her
Meanwhile, or on February 17, 1956, Basilia resignation as special administratrix by
Salud moved for the dismissal of Horacio reason of physical disability, due to old age,
Rodriguez, as special administrator of the and recommended the appointment, in her
estate of the deceased, and the appointment, place, of Victorina Salud. Before any action
in his stead of Ramon Plata. The motion was could be taken thereon, or on March 21, 1956,
set for hearing on February 23, 1956, on Aurea Matias sought a reconsideration of said
which date the court postponed the hearing order of March 10, 1956. Moreover, on March
to February 27, 1956. Although notified of 24, 1956, she expressed her conformity to
this order, Rodriguez did not appear on the said resignation, but objected to the
date last mentioned. Instead, he filed an appointment, in lieu of Basilia Salud, of
urgent motion praying for additional time Victorina Salud, on account of her antagonism
within which to answer the charges preferred to said Aurea Matias - she (Victorina Salud)
against him by Basilia Salud and for another having been the principal and most interested
postponement of said hearing. This motion witness for the opposition to the probate of
was not granted, and Basilia Salud introduced the alleged will of the deceased - and
evidence in support of said charges, proposed that the administration of her
whereupon respondent Judge by an order, estate be entrusted to the Philippine National
dated February 27, 1956, found Rodriguez Bank, the Monte de Piedad, the Bank of the
guilty of abuse of authority and gross Philippine Islands, or any other similar
institution authorized by law therefor, should blind; that said disability is borne out by the
the court be reluctant to appoint the movant fact that on March 17, 1956, Basilia Salud
as special administratrix of said estate. This resigned as special administratrix upon such
motion for reconsideration was denied on ground; that the Rules of Court do not permit
March 26, the appointment of more than one special
1956.chanroblesvirtualawlibrary chanrobles administrator; that Horacio Rodriguez was
virtual law library removed without giving petitioner a chance
to be heard in connection therewith; and that
Shortly afterwards, or on June 18, 1956, Ramon Plata and Victorina Salud were
respondents Ramon Plata and Victorina Salud authorized to collect the rents due to the
requested authority to collect the rents due, deceased and the produce of her lands, as
or which may be due, to the estate of the well to sell her palay, without previous notice
deceased and to collect all the produce of her to the petitioner
lands, which was granted on June 23, 1956. herein.chanroblesvirtualawlibrary chanroble
On June 27, 1956, said respondents filed s virtual law library
another motion praying for permission to sell
the palay of the deceased then deposited in Upon the other hand, respondents maintain
different rice mills in the province of Cavite, that respondent Judge acted with the scope of
which respondent judge granted on June 10, his jurisdiction and without any abuse of
1956. Later on, or on July 10, 1956, petitioner discretion; that petitioner can not validly
instituted the present action against Judge claim any special interest in the estate of the
Gonzales, and Victorina Salud and Ramon deceased, because the probate of the alleged
Plata, for the purpose of annulling the above will and testament of the latter - upon which
mentioned orders of respondent Judge, upon petitioner relies - has been denied; that
the ground that the same had been issued Horacio Rodriguez was duly notified of the
with grave abuse of discretion amounting to proceedings for his removal; and that
lack or excess of Victorina Salud and Ramon Plata have not
jurisdiction.chanroblesvirtualawlibrary chanr done anything that would warrant their
obles virtual law library removal.chanroblesvirtualawlibrary chanrobl
es virtual law library
In support of this pretense, it is argued that
petitioner should have preference in the Upon a review of the record, we find
choice of special administratrix of the estate ourselves unable to sanction fully the acts of
of the decedent, she (petitioner) being the respondent Judge, for the following
universal heiress to said estate and, the reasons:chanrobles virtual law library
executrix appointed in the alleged will of the
deceased, that until its final disallowance - 1. Although Horacio Rodriguez had notice of
which has not, as yet, taken place she has a the hearing of the motion for his removal,
special interest in said estate, which must be dated February 17, 1956, the record shows
protected by giving representation thereto in that petitioner herein received copy of said
the management of said estate; that, apart motion of February 24, 1956, or the date after
from denying her any such representation, that set for the hearing thereof. Again, notice
the management was given to persons partial of the order of respondent Judge, dated
to her main opponent, namely, Basilia Salud, February 23, 1956, postponing said hearing
inasmuch as Victorina Salud is allied to her to February 27, 1956, was not served on
and Ramon Plata is a very close friend of one petitioner
of her (Basilia Salud's) attorneys; that Basilia herein.chanroblesvirtualawlibrary chanroble
Salud was made special administratrix s virtual law library
despite her obvious unfitness for said office,
she being over eighty (80) years of age and
2. In her motion of February 17, 1956, Basilia in the Santa Isabel Hospital, resides In the
Salud prayed for the dismissal of Horacio City of Manila, the former, a practicing lawyer
Rodriguez, and the appointment of Ramon and a former public prosecutor, and later,
Plata, as special administrator of said estate. mayor of the City of Cavite, is a resident
Petitioner had, therefore, no notice that her thereof. In other words, the order of resident
main opponent, Basilia Salud, and the latter's thereof. In other words, the order of
principal witness, Victorina Salud, would be respondent Judge of February 27, 1956,
considered for the management of said. As a removing Rodriguez and appointing Victorina
consequence, said petitioner had no Salud to the management of the estate,
opportunity to object to the appointment of amounted to a reversal of the aforementioned
Basilia Salud as special administratrix, and of order of Judge Bernabe of August 11,
Victorina Salud, as her assistant and adviser, 1952.chanroblesvirtualawlibrary chanrobles
and the order of February 27, 1956, to this virtual law library
effect, denied due process to said
petitioner.chanroblesvirtualawlibrary chanro 6. Although the probate of the alleged will
bles virtual law library and testament of Gabina Raquel was denied
by respondent Judge, the order to this effect
3. Said order was issued with evident is not, as yet, final and executory. It is pending
knowledge of the physical disability of Basilia review on appeal taken by Aurea Matias. The
Salud. Otherwise respondent Judge would not probate of said alleged will being still within
have directed that she "be assisted and realm of legal possibility, Aurea Matias has -
advised by her niece Victorina Salud," and as the universal heir and executrix designated
that the latter "shall always act as aide, in said instrument - a special interest to
interpreter and adviser of Basilia protect during the pendency of said appeal.
Salud."chanrobles virtual law library Thus, in the case of Roxas vs. Pecson * (46 Off.
Gaz., 2058), this Court held that a widow,
4. Thus, respondent Judge, in effect, designated as executrix in the alleged will and
appointed three (3) special administrators - testament of her deceased husband, the
Basilia Salud, Victorina Salud and Ramon probate of which had denied in an order
Plata. Indeed, in the order of March 10, 1956, pending appeal, "has . . . the same beneficial
respondent Judge maintained interest after the decision of the court
"the appointment of the three (3) above- disapproving the will, which is now pending
named persons for the management of the appeal,because the decision is not yet final and
estate of the late Gabina Raquel."chanrobles may be reversed by the appellate
virtual law library court."chanrobles virtual law library

5. Soon after the institution of said Special 7. The record shows that there are, at least
Proceedings No. 5213, an issue arose two (2) factions among the heirs of the
between Aurea Matias and Basilia Salud deceased, namely, one, represented by the
regarding the person to be appointed special petitioner, and another, to which Basilia
administrator of the estate of the deceased. Salud and Victorina Salud belong. Inasmuch
The former proposed Horacio Rodriguez, as the lower court had deemed it best to
whereas the latter urged the appointment of appoint more than one special administrator,
Victorina Salud. By an order dated August 11, justice and equity demands that both factions
1952, the Court, then presided over by Hon. be represented in the management of the
Jose Bernabe, Judge, decided the matter in estate of the
favor of Horacio Rodriguez and against deceased.chanroblesvirtualawlibrary chanrob
Victorina Salud, upon the ground that, unlike les virtual law library
the latter, who, as a pharmacist and employee
The rule, laid down in Roxas vs. Prieto, for Petitioner.
Pecson (supra), to the effect that "only one
special administrator may be appointed to Faustino B. Tobia, Juan I. Ines and
administrator temporarily" the estate of the Federico Tacason, for Respondents.
deceased, must be considered in the light of
the facts obtaining in said case. The lower SYLLABUS
court appointed therein one special
administrator for some properties forming 1. WILLS; ATTESTATION CLAUSE; SIGNING
part of said estate, and a special BY ANOTHER OF TESTATOR’S NAME AT
administratrix for other properties thereof. LATTER’S DIRECTION. — When the testator
Thus, there were two (2) separate and expressly caused another to sign the former’s
independent special administrators. In the name, this fact must be recited in the
case at bar there is only one (1) attestation clause. Otherwise, the will is
special administration, the powers of which fatally defective.
shall be exercised jointly by two special co-
administrators. In short, the Roxas case is not 2. ID.; SIGNATURE OF TESTATOR; CROSS. —
squarely in point. Moreover, there are Where the cross appearing on a will is not the
authorities in support of the power of courts usual signature of the testator or even one of
to appoint several special co-administrators the ways by which he signed his name, that
(Lewis vs. Logdan, 87 A. 750; Harrison vs. cross cannot be considered a valid signature.
Clark, 52 A. 514; In re Wilson's Estate, 61
N.Y.S. 2d., 49; Davenport vs. Davenport, 60 A.
379).chanroblesvirtualawlibrary chanrobles DECISION
virtual law library

Wherefore, the orders complained of are PARAS, C.J. :


hereby annulled and set aside. The lower
court should re-hear the matter of removal of
Horacio Rodriguez and appointment of This is an appeal from a decision of the Court
special administrators, after due notice to all of Appeals disallowing the will of Antero
parties concerned, for action in conformity Mercado dated January 3, 1943. The will is
with the views expressed herein, with costs written in the Ilocano dialect and contains the
against respondents Victorina Salud and following attestation
Ramon Plata. It is so clause:jgc:chanrobles.com.ph
ordered.chanroblesvirtualawlibrary chanrobl
es virtual law library "We, the undersigned, by these presents do
declare that the foregoing testament of
Paras, C.J., Bengzon, Padilla, Montemayor, Antero Mercado was signed by himself and
Reyes, A., Bautista Angelo, Labrador, Reyes, also by us below his name and of this
J.B.L. and Felix, JJ., concur. attestation clause and that of the left margin
of the three pages thereof. Page three the
[G.R. No. L-4067. November 29, 1951.] continuation of this attestation clause; this
will is written in Ilocano dialect which is
In the Matter of the Will of ANTERO spoken and understood by the testator, and it
MERCADO, deceased. ROSARIO bears the corresponding number in letter
GARCIA, Petitioner, v. JULIANA LACUESTA, which compose of three pages and all of them
ET AL., Respondents. were signed in the presence of the testator
and witnesses, and the witnesses in the
Elviro L. Peralta and Hermenegildo A. presence of the testator and all and each and
every one of us witnesses.
the latter having been held sufficient by this
"In testimony, whereof, we sign this Court in the cases of De Gala v. Gonzales and
testament, this the third day of January, one Ona, 53 Phil., 104; Dolar v. Diancin, 55 Phil.,
thousand nine hundred forty three, (1943) 479; Payad v. Tolentino, 62 Phil., 848; Neyra
A.D. v. Neyra, 76 Phil., 296 and Lopez v. Liboro, 81
Phil., 429.
(Sgd.) "NUMERIANO EVANGELISTA (Sgd.)
ROSENDO CORTES It is not here pretended that the cross
appearing on the will is the usual signature of
(Sgd.) BIBIANA ILLEGIBLE" Antero Mercado or even one of the ways by
which he signed his name. After mature
The will appears to have been signed by Atty. reflection, we are not prepared to liken the
Florentino Javier who wrote the name of mere sign of a cross to a thumbmark, and the
Antero Mercado, followed below by "A ruego reason is obvious. The cross cannot and does
del testador" and the name of Florentino not have the trustworthiness of a
Javier. Antero Mercado is alleged to have thumbmark.
written a cross immediately after his name.
The Court of Appeals, reversing the judgment What has been said makes it unnecessary for
of the Court of First Instance of Ilocos Norte, us to determine whether there is a sufficient
ruled that the attestation clause failed (1) to recital in the attestation clause as to the
certify that the will was signed on all the left signing of the will by the testator in the
margins of the three pages and at the end of presence of the witnesses, and by the latter in
the will by Atty. Florentino Javier at the the presence of the testator and of each
express request of the testator in the other.
presence of the testator and each and every
one of the witnesses; (2) to certify that after Wherefore, the appealed decision is hereby
the signing of the name of the testator by affirmed, with costs against the petitioner. So
Atty. Javier at the former’s request said ordered.
testator has written a cross at the end of his
name and on the left margin of the three Feria, Pablo, Bengzon, Padilla, Reyes, Jugo and
pages of which the will consists and at the Bautista Angelo, JJ., concur.
end thereof; (3) to certify that the three
witnesses signed the will in all the pages G.R. No. 6845 September 1, 1914
thereon in the presence of the testator and of
each other. YAP TUA, petitioner-appellee, vs. YAP CA
KUAN and YAP CA KUAN, objectors-
In our opinion, the attestation clause is fatally appellants.
defective for failing to state that Antero
Mercado caused Atty. Florentino Javier to Chicote and Miranda for appellants.
write the testator’s name under his express O'Brien and DeWitt for appellee.
direction, as required by section 618 of the
Code of Civil Procedure. The herein petitioner JOHNSON, J.:
(who is appealing by way ofcertiorari from
the decision of the Court of Appeals) argues, It appears from the record that on the 23d
however, that there is no need for such recital day of August, 1909, one Perfecto Gabriel,
because the cross written by the testator after representing the petitioner, Yap Tua,
his name is a sufficient signature and the presented a petition in the Court of First
signature of Atty. Florentino Javier is a Instance of the city of Manila, asking that the
surplusage. Petitioner’s theory is that the will of Tomasa Elizaga Yap Caong be admitted
cross is as much a signature as a thumbmark,
to probate, as the last will and testament of voluntarily.chanroblesvirtualawlibrary chanr
Tomasa Elizaga Yap Caong, deceased. It obles virtual law library
appears that the said Tomasa Elizaga Yap
Caong died in the city of Manila on the 11th No further witnesses were called and there
day of August, 1909. Accompanying said was no further opposition presented to the
petition and attached thereto was the alleged legalization of the said
will of the deceased. It appears that the will will.chanroblesvirtualawlibrary chanrobles
was signed by the deceased, as well as virtual law library
Anselmo Zacarias, Severo Tabora, and
Timoteo After hearing the foregoing witnesses, the
Paez.chanroblesvirtualawlibrary chanrobles Honorable A. S. Crossfield, judge, on the 29th
virtual law library day of September, 1909, ordered that the last
will and testament of Tomasa Elizaga Yap
Said petition, after due notice was given, was Caong be allowed and admitted to probate.
brought on for hearing on the 18th day of The will was attached to the record and
September, 1909. Timoteo Paez declared that marked Exhibit A. The court further ordered
he was 48 years of age; that he had known the that one Yap Tua be appointed as executor of
said Tomasa Elizaga Yap Caong; that she had the will, upon the giving of a bond, the
died on the 11th day of August, 1909; that amount of which was to be fixed
before her death she had executed a last will later.chanroblesvirtualawlibrary chanrobles
and testament; that he was present at the virtual law library
time of the execution of the same; that he had
signed the will as a witness; that Anselmo From the record it appears that no further
Zacarias and Severo Tabora had also signed proceedings were had until the 28th of
said will as witnesses and that they had February, 1910, when Yap Ca Kuan and Yap
signed the will in the presence of the Ca Llu appeared and presented a petition,
deceased.chanroblesvirtualawlibrary chanrob alleging that they were interested in the
les virtual law library matters of the said will and desired to
intervene and asked that a guardian ad
Pablo Agustin also declared as a witness and litem be appointed to represent them in the
said that he was 40 years of age; that he knew cause.chanroblesvirtualawlibrary chanrobles
Tomasa Elizaga Yap Caong during her virtual law library
lifetime; that she died on the 11th day of
August, 1909, in the city of Manila; that before On the 1st day of March, 1910, the court
her death she had executed a last will and appointed Gabriel La O as guardian ad
testament; that he was present at the time litem of said parties. Gabriel La O accepted
said last will was executed; that there were said appointment, took the oath of office and
also present Timoteo Paez and Severo Tabora entered upon the performance of his duties as
and a person called Anselmo; that the said guardian ad litem of said parties. On the 2d
Tomasa Elizaga Yap Caong signed the will in day of March, 1910, the said Gabriel La O
the presence of the witnesses; that he had appeared in court and presented a motion in
seen her sign the will with his own eyes; that which he alleged, in substance:chanrobles
the witnesses had signed the will in the virtual law library
presence of the said Tomasa Elizaga Yap
Caong and in the presence of each other; that First. That the will dated the 11th day of
the said Tomasa Elizaga Yap Caong signed the August, 1909, and admitted to probate by
will voluntarily, and in his judgment, she was order of the court on the 29th day of
in the possession of her faculties; that there September, 1909, was null, for the following
were no threats or intimidation used to reasons:
induce her to sign the will; that she signed it
( a) Because the same had not been for a new trial, attached to said petition the
authorized nor signed by the witnesses as the alleged will of August 6, 1909, of the said
law Tomasa Elizaga Yap Caong, and the affidavits
prescribes.chanroblesvirtualawlibrary chanr of Severo Tabora, Clotilde and Cornelia
obles virtual law library Serrano.chanroblesvirtualawlibrary chanrobl
es virtual law library
(b) Because at the time of the execution of the
will, the said Tomasa Elizaga Yap Caong was Upon the 10th day of March, 1910, upon the
not then mentally capacitated to execute the hearing of said motion for a rehearing, the
same, due to her Honorable A. S. Crossfield, judge, granted said
sickness.chanroblesvirtualawlibrary chanrobl motion and ordered that the rehearing should
es virtual law library take place upon the 18th day of March, 1910,
and directed that notice should be given to
( c) Because her signature to the will had the petitioners of said rehearing and to all
been obtained through fraud and illegal other persons interested in the will. At the
influence upon the part of persons who were rehearing a number of witnesses were
to receive a benefit from the same, and examined.chanroblesvirtualawlibrary chanro
because the said Tomasa Elizaga Yap Caong bles virtual law library
had no intention of executing the same.
It will be remembered that one of the
Second. That before the execution of the said grounds upon which the new trial was
will, which they alleged to be null, the said requested was that the deceased, Tomasa
Tomasa Elizaga Yap Caong had executed Elizaga Yap Caong, had not signed the will
another will, with all the formalities required (Exhibit A) of the 11th of August, 1909; that
by law, upon the 6th day of August, in support of that allegation, the protestants,
1909.chanroblesvirtualawlibrary chanrobles during the rehearing, presented a witness
virtual law library called Tomas Puzon. Puzon testified that he
was a professor and an expert in handwriting,
Third. That the said Yap Ca Kuan and Yap Ca and upon being shown the will (of August 11,
Llu were minors and that, even though they 1909) Exhibit A, testified that the name and
had been negligent in presenting their surname on Exhibit A, in his judgment were
opposition to the legalization of the will, said written by two different hands, though the
negligence was excusable, on account of their given name is the same as that upon Exhibit 1
age.chanroblesvirtualawlibrary chanrobles (the will of August 6, 1909), because he found
virtual law library in the name "Tomasa" on Exhibit A a
similarity in the tracing to the "Tomasa" in
Upon the foregoing facts the court was Exhibit 1; that comparing the surname on
requested to annul and set aside the order of Exhibit A with the surname on Exhibit 1 he
the 29th day of September, 1909, and to grant found that the character of the writing was
to said minors an opportunity to present new thoroughly distinguished and different by the
proof relating to the due execution of said tracing and by the direction of the letters in
will. Said petition was based upon the the said two exhibits; that from his
provisions of section 113 of the Code of experience and observation he believed that
Procedure in Civil the name "Tomasa" and "Yap Caong,"
Actions.chanroblesvirtualawlibrary chanrobl appearing in the signature on Exhibit A were
es virtual law library written by different
person.chanroblesvirtualawlibrary chanroble
While it is not clear from the record, s virtual law library
apparently the said minors in their petition
Puzon, being cross-examined with reference as the first; that the will (Exhibit A) was on a
to his capacity as an expert in handwriting, table, far from the patient, in the house but
testified that while he was a student in the outside the room where the patient was; that
Ateneo de Manila, he had studied the will was signed by Paez and himself; that
penmanship; that he could not tell exactly Anselmo Zacarias was there; that he was not
when that was, except that he had concluded sure whether Anselmo Zacarias signed the
his course in the year 1882; that since that will or not; that he was not sure whether
time he had been a telegraph operator for Tomasa Elizaga Yap Caong could see the table
seventeen years and that he had acted as an on which the will was written at the time it
expert in hand- writing in the courts in the was signed or not; that there were many
provinces.chanroblesvirtualawlibrary chanro people in the house; that he remembered the
bles virtual law library names of Pedro and Lorenzo; that he could
not remember the names of any others; that
Gabriel La O was called as a witness during the will remained on the table after he signed
the rehearing and testified that he had drawn it; that after he signed the will he went to the
the will of the 6th of August, 1909, at the room where Tomasa was lying; that the will
request of Tomasa Elizaga Yap Caong; that it was left on the table outside; that Tomasa
was drawn in accordance with her request was very ill; that he heard the people asking
and under her directions; that she had signed Tomasa to sign the will after he was (the
it; that the same had been signed by three witness) had signed it; that he saw Paez sign
witnesses in her presence and in the presence the will, that he could not remember whether
of each other; that the will was written in her Anselmo Zacarias had signed the will, because
house; that she was sick and was lying in her immediately after he and Paez signed it, he
bed, but that she sat up to sign the will; that left because he was hungry; that the place
she signed the will with great difficulty; that where the table was located was in the same
she was signed in her right house, on the floor, about two steps down
mind.chanroblesvirtualawlibrary chanrobles from the floor on which Tomasa
virtual law library was.chanroblesvirtualawlibrary chanrobles
virtual law library
The said Severo Tabora was also called as a
witness again during the rehearing. He Rufino R. Papa, was called as a witness for the
testified that he knew Tomasa Elizaga Yap purpose of supporting the allegation that
Caong during her lifetime; that she was dead; Tomasa Elizaga Yap Caong was mentally
that his signature as a witness to Exhibit A incapacitated to make the will dated August
(the will of August 11, 1909) was placed there 11, 1909 (Exhibit A). Papa declared that he
by him; that the deceased, Tomasa Elizaga was a physician; that he knew Tomasa Elizaga
Yap Caong, became familiar with the contents Yap Caong; that he had treated her in the
of the will because she signed it before he month of August; that he visited her first on
(the witness) did; that he did not know the 8th day of August; that he visited her
whether anybody there told her to sign the again on the 9th and 10th days of August; that
will or not; that he signed two bills; that he on the first visit he found the sick woman
did not know La O; that he did not believe completely weak - very weak from her
that Tomasa had signed the will (Exhibit A) sickness, in the third stage of tuberculosis;
before he arrived at the house; that he was that she was lying in bed; that on the first
not sure that he had seen Tomasa Elizaga Yap visit he found her with but little sense, the
Caong sign Exhibit A because there were second day also, and on the third day she had
many people and there was a screen at the lost all her intelligence; that she died on the
door and he could not see; that he was called 11th of August; tat he was requested to issue
a a witness to sign the second will and was the death certificate; that when he asked her
told by the people there that it was the same (Tomasa) whether she was feeling any pain
or anything of that kind, she did not answer at hear her voice; that he did not know whether
all; that she was in a condition of stupor, the sick woman was him sign the will or not;
induced, as he believed, by the stage of that he believed that Tomasa died the next
uraemia from which she was day after the will had been signed; that the
suffering.chanroblesvirtualawlibrary chanrob other two witnesses, Timoteo Paez and
les virtual law library Severo Tabora, had signed the will in the
room with the sick woman; that he saw them
Anselmo Zacarias, who had signed the will of sign the will and that they saw him sign it;
August 11, 1909, was also called as a that he was not sure whether the testatrix
witnesses during the rehearing. He testified could have seen them at the time they signed
that he had known Tomasa Elizaga Yap Caong the will or not; that there was a screen before
since he was a child; that Tomasa was dead; the bed; that he did not think that Lorenzo
that he had written the will exhibit A; that it had been giving instructions as to the
was all in his writing except the last part, contents of the will; that about ten or fifteen
which was written by Carlos Sobaco; that he minutes elapsed from the time Lorenzo
had written the will Exhibit A at the request handed the will to Tomasa before she started
of the uncle of Tomasa; that Lorenzo, the to sign it; that the pen with which she signed
brother of the deceased, was the one who had the will as given to her and she held
instructed him as to the terms of the will ; it.chanroblesvirtualawlibrary chanrobles
that the deceased had not spoken to him virtual law library
concerning the terms of the will; that the will
was written in the dining room of the Clotilde Mariano testified that he was a
residence of the deceased; that Tomasa was cigarette maker; that he knew Tomasa Elizaga
in another room different from that in which Yap Caong and that she was dead; that she
the will was written; that the will was not had made two wills; that the first one was
written in the presence of Tomasa; that he written by La O and the second by Zacarias;
signed the will as a witness in the room that he was present at the time Zacarias
where Tomasa was lying; that the other wrote the second one; that he was present
witnesses signed the will in the same room when the second will was taken to Tomasa
that when he went into the room where the for signature; that Lorenzo had told Tomasa
sick woman was (Tomasa Elizaga Yap Caong) that the second will was exactly like the first;
Lorenzo had the will in his hands; that when that Tomasa said she could not sign
Lorenzo came to the bed he showed the will it.chanroblesvirtualawlibrary chanrobles
to his sister (Tomasa) and requested her to virtual law library
sign it; that she was lying stretched out on the
bed and two women, who were taking care of On cross examination he testified that there
her, helped her to sit up, supporting her by was a lot of visitors there; that Zacarias was
lacing their hands at her back; that when she not there; that Paez and Tabora were there;
started to write her name, he withdrew from that he had told Tomasa that the second will
the bed on account of the best inside the was exactly like the
room; when he came back again to the sick first.chanroblesvirtualawlibrary chanrobles
bed the will was signed and was again in the virtual law library
hands of Lorenzo; that he did not see Tomasa
sign the will because he withdrew from the During the rehearing Cornelia Serrano and
room; that he did not know whether Tomasa Pedro Francisco were also examined as
had been informed of the contents of the will witnesses. There is nothing in their
or not; he supposed she must have read it testimony, however, which in our opinion is
because Lorenzo turned the will over to her; important.chanroblesvirtualawlibrary chanro
that when Lorenzo asked her to sign the will, bles virtual law library
he did not know what she said - he could not
In rebuttal Julia e la Cruz was called as a lying.chanroblesvirtualawlibrary chanrobles
witness. She testified that she was 19 years of virtual law library
age; that she knew Tomasa Elizaga Yap Caong
during her lifetime; that she lived in the Lorenzo Yap Caong testified as a witness on
house of Tomasa during the last week of her rebuttal. He said that he knew Anselmo
illness; that Tomasa had made two wills; that Zacarias and that Zacarias wrote the will of
she was present when the second one was Tomasa Elizaga Yap Caong; that Tomasa had
executed; that a lawyer had drawn the will in given him instructions; that Tomasa had said
the dining room and after it had been drawn that she sign the will; that the will was on a
and everything finished , it was taken to table near the bed of Tomasa; that Tomasa,
where Doña Tomasa was, for her signature; from where she was lying in the bed, could
that it was taken to her by Anselmo Zacarias; seethe table where the witnesses had signed
that she was present at the time Tomasa the
signed the will that there were many other will.chanroblesvirtualawlibrary chanrobles
people present also; that she did not see virtual law library
Timoteo Paez there; that she saw Severo
Tabora; that Anselmo Zacarias was present; During the rehearing certain other witnesses
that she did not hear Clotilde Mariano ask were also examined; in our opinion, however,
Tomasa to sign the will; that she did not hear it is necessary to quote from them for the
Lorenzo say to Tomasa that the second will reason that their testimony in no way affects
was the same sa the first; that Tomasa asked the preponderance of proof above
her to help her to sit up and to put a pillow to quoted.chanroblesvirtualawlibrary chanroble
her back when Zacarias gave her some paper s virtual law library
or document and asked her to sign it; that she
saw Tomasa take hold of the pen and try to At the close of the rehearing the Honorable A.
sign it but she did not see the place she signed S. Crossfield, judge, in an extended opinion,
the document, for the reason that she left the reached the conclusion that the last will and
room; that she saw Tomasa sign the testament of Tomasa Elizaga Yap Caong,
document but did not see on what place on which was attached to the record and marked
the document she signed; and that a notary Exhibit A was the last will and testament of
public came the next morning; that Tomasa the said Tomasa Elizaga Yap Caong and
was able to move about in the bed; that she admitted it to probate and ordered that the
had seen Tomasa in the act of starting to administrator therefore appointed should
write her signature when she told her to get continue as such administrator. From that
her some order the protestants appealed to this court,
water.chanroblesvirtualawlibrary chanrobles and made the following assignments of error:
virtual law library
I. The court erred in declaring that the will,
Yap Cao Quiang was also called as a witness Exhibit A, was executed by the deceased
in rebuttal. He testified that he knew Tomasa Tomasa Yap Caong, without the intervention
Elizaga Yap Caong and knew that she had of any external influence on the part of other
made a will; that he saw the will at the time it persons.chanroblesvirtualawlibrary chanrobl
was written; that he saw Tomasa sign it on es virtual law library
her head; that he did not hear Lorenzo ask
Tomasa to sign the will; that Lorenzo had II. The court erred in declaring that the
handed the will to Tomasa to sign; that he testator had clear knowledge and knew what
saw the witnesses sign the will on a table she was doing at the time of signing the
near the bed; that the table was outside the will.chanroblesvirtualawlibrary chanrobles
curtain or screen and near the entrance to the virtual law library
room where Tomasa was
III. The court erred in declaring that the will was presented to her for her signature,
signature of the deceased Tomasa Yap Caong she was of sound mind and memory and
in the first will, Exhibit 1, is identical with that asked for a pen and ink and kept the will in
which appears in the second will, Exhibit her possession for ten or fifteen minutes and
A.chanroblesvirtualawlibrary chanrobles finally signed it. The lower court found that
virtual law library there was a preponderance of evidence
sustaining the conclusion that Tomasa Elizaga
IV. The court erred in declaring that the will, Yap Caong was of sound mind and memory
Exhibit A, was executed in accordance with and in the possession of her faculties at the
the law. time she signed this will. In view of the
conflict in the testimony of the witnesses and
With reference to the first assignment of the finding of the lower court, we do not feel
error, to wit, that undue influence was justified in reversing his conclusions upon
brought to bear upon Tomasa Elizaga Yap that
Caong in the execution of her will of August question.chanroblesvirtualawlibrary chanrob
11th, 1909 (Exhibit A), the lower court found les virtual law library
that no undue influence had been exercised
over the mind of the said Tomasa Elizaga Yap With reference to the third assignment of
Caong. While it is true that some of the error, to wit, that the lower court committed
witnesses testified that the brother of an error in declaring that the signature of
Tomasa, one Lorenzo, had attempted to Tomasa Elizaga Yap Caong, on her first will
unduly influence her mind in the execution of (August 6, 1909, Exhibit 1), is identical with
he will, upon the other hand, there were that which appears in the second will (August
several witnesses who testified that Lorenzo 11, 1909, Exhibit A), it may be
did not attempt, at the time of the execution said: chanrobles virtual law library
of the will, to influence her mind in any way.
The lower court having had an opportunity to First. That whether or not Tomasa Elizaga
see, to hear, and to note the witnesses during Yap Caong executed the will of August 6, 1909
their examination reached the conclusion that (Exhibit 1), was not the question presented to
a preponderance of the evidence showed that the court. The question presented was
no undue influence had been used. we find no whether or not she had duly executed the will
good reason in the record for reversing his of August 11, 1909 (Exhibit
conclusions upon that A).chanroblesvirtualawlibrary chanrobles
question.chanroblesvirtualawlibrary chanrob virtual law library
les virtual law library
Second. There appears to be but little doubt
With reference to the second assignment of that Tomasa Elizaga Yap Caong did execute
error to wit, that Tomasa Elizaga Yap Caong the will of August 6, 1909. Several witnesses
was not of sound mind and memory at the testified to that fact. The mere fact, however,
time of the execution of the will, we find the that she executed a former will is no proof
same conflict in the declarations of the that she did not execute a later will. She had a
witnesses which we found with reference to perfect right, by will, to dispose of her
the undue influence. While the testimony of property, in accordance with the provisions
Dr. Papa is very strong relating to the mental of law, up to the very last of moment her life.
condition of Tomasa Elizaga Yap Caong, yet, She had a perfect right to change, alter,
nevertheless, his testimony related to a time modify or revoke any and all of her former
perhaps twenty-four hours before the wills and to make a new one. Neither will the
execution of the will in question (Exhibit A). fact that the new will fails to expressly revoke
Several witnesses testified that at the time the all former wills, in any way sustain the charge
that she did not make the new this paper the deceased attempted to make
will.chanroblesvirtualawlibrary chanrobles certain disposition of her property. The will
virtual law library was presented for probate. The probation
was opposed upon the ground that the same
Third. In said third assignment of error there did not contain the signature of the deceased.
is involved in the statement that "The That was the only question presented to the
signature of Tomasa Elizaga Yap Caong, in her court, whether the signature, in the form
first will (Exhibit 1) was not identical with above indicated, was a sufficient signature to
that which appears in her second will (Exhibit constitute said paper the last will and
A)" the inference that she had not signed the testament of Harriett S. Knox. It was admitted
second will and all the argument of the that the entire paper was in the handwriting
appellants relating to said third assignment of of the deceased. In deciding that question,
error is based upon the alleged fact that Justice Mitchell said:
Tomasa Elizaga Yap Caong did not sign
Exhibit A. Several witnesses testified that The precise case of a signature by the first
they saw her write the name "Tomasa." One name only, does not appear to have arisen
of the witnesses testified that she had written either in England or the United States; but the
her full name. We are of the opinion, and we principle on which the decisions already
think the law sustains our conclusion, that if referred to were based, especially those in
Tomasa Elizaga Yap Caong signed any portion regard to signing by initials only, are equally
of her name tot he will, with the intention to applicable to the present case, and additional
sign the same, that the will amount to a force is given to them by the decisions as to
signature. It has been held time and time what constitutes a binding signature to a
again that one who makes a will may sign the contract. (Palmer vs. Stephens, 1 Denio, 478;
same by using a mark, the name having been Sanborne vs. Flager, 9 Alle, 474; Weston vs.
written by others. If writing a mark simply Myers, 33 Ill., 424; Salmon Falls, etc. Co. vs.
upon a will is sufficient indication of the Goddard, 14 How. (U. S.), 446.)
intention of the person to make and execute a
will, then certainly the writing of a portion or The man who cannot write and who is
all of her name ought to be accepted as a clear obliged to make his mark simply therefor,
indication of her intention to execute the will. upon the will, is held to "sign" as effectually as
( Re Goods of Savory, 15 Jur., 1042; Addy vs. if he had written his initials or his full name. It
Grix, 8 Ves. Jr., 504; Baker vs. Dening, 8 Ad. would seem to be sufficient, under the law
and El., 94 Long vs. Zook, 13 Penn., 400; requiring a signature by the person making a
Vernon vs. Kirk, 30 Penn., 218; Cozzen's Will, will, to make his mark, to place his initials or
61 Penn., 196; Re Goods of Emerson, L. R. 9 all or any part of his name thereon. In the
Ir., 443; Main vs. Ryder, 84 Penn., present case we think the proof shows, by a
217.) chanrobles virtual law library large preponderance, that Tomasa Elizaga
Yap Caong, if she did not sign her full name,
We find a very interesting case reported in did at least sign her given name "Tomasa,"
131 Pennsylvania State, 220 (6 L. R. A., 353), and that is sufficient to satisfy the
and cited by the appellees, which was known statute.chanroblesvirtualawlibrary chanroble
as "Knox's Appeal." In this case one Harriett S. s virtual law library
Knox died very suddenly on the 17th of
October, 1888, at the residence of her father. With reference to the fourth assignment of
After her death a paper was found in her error, it may be said that the argument which
room, wholly in her handwriting, written was preceded is sufficient to answer it
with a lead pencil, upon three sides of an also.chanroblesvirtualawlibrary chanrobles
ordinary folded sheet of note paper and virtual law library
bearing the signature simply of "Harriett." In
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 the person who signs the name of the
stated in said will that being unable to read or testatrix must afterwards sign his own name;
write, the same had been read to her by and that, in view of the fact that, in the case at
Ciriaco Concepcion and Timotea Inoselda and bar, the name signed below that of the
that she had instructed Severo Agayan to sign testatrix as the person who signed her name,
her name to it as being, from its appearance, not the same
testatrix.chanroblesvirtualawlibrary chanrobl handwriting as that constituting the name of
es virtual law library the testatrix, the will is accordingly invalid,
such fact indicating that the person who
The probate of the will was contested and signed the name of the testatrix failed to sign
opposed by a number of the relatives of the his own. We do not believe that this
deceased on various grounds, among them contention can be sustained. Section 618 of
that a later will had been executed by the the Code of Civil Procedure reads as follows:
deceased. The will referred to as being a later
will is the one involved in case No. 6284 No will, except as provided in the preceding
already referred to. Proceeding for the section, shall be valid to pass any estate, real
probate of this later will were pending at the or personal, nor charge or effect the same,
time. The evidence of the proponents and of unless it be in writing and signed by the
the opponents was taken by the court in both testator, or by the testator's name written by
cases for the purpose of considering them some other person in his presence, and by his
together.chanroblesvirtualawlibrary chanrobl expenses direction, and attested and
es virtual law library subscribed by three or more credible
witnesses in the presence of the testator and
In the case before us the learned probate of each. . . .
court found that the will was not entitled to
probate upon the sole ground that the This is the important part of the section
handwriting of the person who it is alleged under the terms of which the court holds that
signed the name of the testatrix to the will for the person who signs the name of the testator
and on her behalf looked more like the for him must also sign his own name The
handwriting of one of the other witnesses to remainder of the section reads:
the will than that of the person whose
handwriting it was alleged to be. We do not The attestation shall state the fact that the
believe that the mere dissimilarity in writing testator signed the will, or caused it to be
thus mentioned by the court is sufficient to signed by some other person, at his express
overcome the uncontradicted testimony of all direction, in the presence of three witnesses,
the witnesses to the will that the signature of and that they attested and subscribed it in his
the testatrix was written by Severo Agayan at presence and in the presence of each other.
her request and in her presence and in the But the absence of such form of attestation
presence of all the witnesses to the will. It is shall not render the will invalid if it is proven
immaterial who writes the name of the that the will was in fact signed and attested as
testatrix provided it is written at her request in this section provided.
and in her presence and in the presence of all
the witnesses to the execution of the From these provisions it is entirely clear that,
will.chanroblesvirtualawlibrary chanrobles with respect to the validity of the will, it is
virtual law library unimportant whether the person who writes
the name of the testatrix signs his own or not.
The court seems , by inference at least, to The important thing is that it clearly appears
have had in mind that under the law relating that the name of the testatrix was signed at
to the execution of a will it is necessary that her express direction in the presence of three
witnesses and that they attested and person signing the name of the principal is, in
subscribed it in her presence and in the the particular case, a complete abrogation of
presence of each other. That is all the statute the law of wills, as it rejects and destroys a
requires. It may be wise as a practical matter will which the statute expressly declares is
that the one who signs the testator's name valid.chanroblesvirtualawlibrary chanrobles
signs also his own; but that it is not essential virtual law library
to the validity of the will. Whether one parson
or another signed the name of the testatrix in There have been cited three cases which it is
this case is absolutely unimportant so far as alleged are in opposition to the doctrine
the validity of her will is concerned. The plain which we have herein laid down. They are Ex
wording of the statute shows that the parte Santiago (4 Phil. Rep., 692), Ex
requirement laid down by the trial court, if it parteArcenas (4 Phil. Rep., 700), and
did lay down, is absolutely unnecessary Guison vs. Concepcion (5 Phil. Rep., 551). Not
under the law; and the reasons underlying one of these cases is in point. The headnote in
the provisions of the statute relating to the the case last above stated gives an indication
execution of wills do not in any sense require of what all of cases are and the question
such a provision. From the standpoint of involved in each one of them. It says:
language it is an impossibility to draw from
the words of the law the inference that the The testatrix was not able to sign it for her.
persons who signs the name of the testator Instead of writing her name he wrote his own
must sign his own name also. The law upon the will. Held, That the will was not duly
requires only three witnesses to a will, not executed.
four.chanroblesvirtualawlibrary chanrobles
virtual law library All of the above cases are precisely of this
character. Every one of them was a case in
Nor is such requirement found in any other which the person who signed the will for the
branch of the law. The name of a person who testator wrote his own name to the will
is unable to write may be signed by another instead of writing that of the testator, so that
by express direction to any instrument the testator's name nowhere appeared
known to the law. There is no necessity attached to the will as the one who executed
whatever, so far as the validity of the it. The case of Ex parte Arcenas contains the
instrument is concerned, for the person who following paragraph:
writes the name of the principal in the
document to sign his own name also. As a Where a testator does not know, or is unable
matter of policy it may be wise that he do so for any reason, to sign the will himself, it shall
inasmuch as it would give such intimation as be signed in the following manner: "John Doe,
would enable a person proving the document by the testator, Richard Roe;" or in this form:
to demonstrate more readily the execution by "By the testator. John Doe, Richard Roe." All
the principal. But as a matter of essential this must be written by the witness signing at
validity of the document, it is unnecessary. the request of the testator.
The main thing to be established in the
execution of the will is the signature of the The only question for decision in that case, as
testator. If that signature is proved, whether we have before stated, was presented by the
it be written by himself or by another at his fact that the person who was authorized to
request, it is none the less valid, and the fact sign the name of the testator to the will
of such signature can be proved as perfectly actually failed to sign such name but instead
and as completely when the person signing signed his own thereto. The decision in that
for the principal omits to sign his own name case related only to that
as it can when he actually signs. To hold a will
invalid for the lack of the signature of the
question.chanroblesvirtualawlibrary chanrob the signature of said person appears above
les virtual law library the typewritten statement "Por la Testadora
Anacleta Abellana . . . Ciudad de Zamboanga,"
Aside from the presentation of an alleged may not be admitted to probate for failure to
subsequent will the contestants in this case comply with the express requirement of the
have set forth no reason whatever why the law that the testator must himself sign the
will involved in the present litigation should will or that his name be affixed thereto by
not be probated. The due and legal execution some other person in his presence and by his
of the will by the testatrix is clearly express direction.
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 DECISION
resolved in case No. 6284 of which we have
already spoken. We there held that said later
will not the will of the LABRADOR, J.:
deceased.chanroblesvirtualawlibrary chanrob
les virtual law library
Appeal from a decision of the Court of First
The judgment of the probate court must be Instance of Zamboanga City admitting to
and is hereby reversed and that court is probate the will of one Anacleta Abellana. The
directed to enter an order in the usual form case was originally appealed to the Court of
probating the will involved in this litigation Appeals where the following assignment of
and to proceed with such probate in error is made:jgc:chanrobles.com.ph
accordance with law.
"The appellants respectfully submit that the
Arellano, C.J., Mapa and Carson, JJ., concur. Trial Court erred in holding that the supposed
testament, Exh.’A’, was signed in accordance
[G.R. No. L-15153. August 31, 1960.] with law; and in admitting the will to
probate."cralaw virtua1aw library
In the matter of the summary settlement
of the Estate of the deceased Anacleta In view of the fact that the appeal involves a
Abellana. LUCIO BALONAN, Petitioner- question of law the said court has certified
Appellee, v. EUSEBIA ABELLANA, ET the case to us.
AL., Oppositors-Appellants.
The facts as found by the trial court are as
T. de los Santos for Appellee. follows:jgc:chanrobles.com.ph

Climaco & Climaco for appellants. "It appears on record that the last Will and
Testament (Exhibit ‘A’), which is sought to be
probated, is written in the Spanish language
SYLLABUS 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
1. WILLS; EXECUTION OF WILL; SUBSCRIBED under his name appears typewritten ‘Por la
AT THE END BY SOME PERSON OTHER THAN testadora Anacleta Abellana, residence
THE TESTATOR, INSUFFICIENT Certificate A-1167629, Enero 20, 1951,
COMPLIANCE WITH THE LAW. — A will Ciudad de Zamboanga’, and on the second
subscribed at the end thereof by some person page appears the signature of the three (3)
other than the testator in such manner that instrumental witnesses Blas Sebastian,
Faustino Macaso and Rafael Ignacio, at the
bottom of which appears the signature of T. or personal, nor charge or affect the same,
de los Santos and below his signature is his unless it be in writing and signed by the
official designation as the notary public who testator, or by the testator’s name written by
notarized the said testament. On the first some other person in his presence, and by his
page on the left margin of the said instrument express direction, and attested and
also appear the signatures of the subscribed by three or more credible
instrumental witnesses. On the second page, witnesses in the presence of the testator and
which is the last page of the said last Will and of each other. . . ." (Italics supplied)
Testament, also appears the signature of the
three (3) instrumental witnesses and on that Note that the old law as well as the new
second page on the left margin appears the require that the testator himself sign the will,
signature of Juan Bello under whose name or if he cannot do so, the testator’s name must
appears handwritten the following phrase, be written by some other person in his
‘Por la Testadora Anacleta Abellana’. The will presence and by his express direction.
is duly acknowledged before Notary Public, Applying this provision this Court said in the
Attorney Timoteo de los Santos." (Italics case of Ex Parte Pedro Arcenas, Et Al., 4 Phil.,
supplied.) 700:jgc:chanrobles.com.ph

The appeal squarely presents the following "It will be noticed from the above-quoted
issue: Does the signature of Dr. Juan A. Abello section 618 of the Code of Civil Procedure
above the typewritten statement "Por la that where the testator does not know how,
Testadora Anacleta Abellana . . ., Ciudad de or is unable, to sign, it will not be sufficient
Zamboanga," comply with the requirements that one of the attesting witnesses signs the
of the law prescribing the manner in which a will at the testator’s request, the notary
will shall be executed? certifying thereto as provided in article 695 of
the Civil Code, which, in this respect, was
The present law, Article 805 of the Civil Code, modified by section 618 above referred to,
in part provides as but it is necessary that the testator’s name be
follows:jgc:chanrobles.com.ph written by the person signing in his stead in
the place where he would have signed if he
"Every will, other than a holographic will, knew how or was able so to do, and this in the
must be subscribed at the end thereof by the testator’s presence and by his express
testator himself or by the testator’s name direction; so that a will signed in a manner
written by some other person in his presence, different than that prescribed by law shall not
and by his express direction, and attested and be valid and will not be allowed to be
subscribed by three or more credible probated.
witnesses in the presence of the testator and
of one another." (Italics supplied.) "Where a testator does not know how, or is
unable for any reason, to sign the will himself,
The clause "must be subscribed at the end it shall be signed in the following
thereof by the testator himself or by the manner:chanrob1es virtual 1aw library
testator’s name written by some other person
in his presence and by his express direction," ‘John Doe by the testator, Richard Roe; or in
is practically the same as the provisions of this form: ‘By the testator, John Doe, Richard
Section 618 of the Code of Civil Procedure Roe.’ All this must be written by the witness
(Act No. 190) which reads as signing at the request of the testator.
follows:jgc:chanrobles.com.ph
"Therefore, under the law now in force, the
"No will, except as provided in the preceding witness Naval A. Vidal should have written at
section shall be valid to pass any estate, real the bottom of the will the full name of the
testator and his own name in one of the forms In the matter of the will of MARIA SIASON
given above. He did not do so, however, and Y MADRID DE LEDESMA, Probate
this failure to comply with the law is a proceedings.
substantial defect which affects the validity of
the will and precludes its allowance, Antonio Jayme for petitioner.
notwithstanding the fact that no one
appeared to oppose it."cralaw virtua1aw TRACEY, J.:
library
In this special proceedings for the legalization
The same ruling was laid down in the case of of a will, the Court of First Instance refused
Cuison v. Concepcion, 5 Phil., 552. In the case probate on the ground that the instrument
of Barut v. Cabacungan, 21 Phil., 461, we held was not subscribed by the witnesses in the
that the important thing is that it clearly presence of the testatrix and of each other as
appears that the name of the testatrix was required by section 618 of the Code of Civil
signed at her express direction; it is Procedure.
unimportant whether the person who writes
the name of the testatrix signs his own or not. The testatrix was ill and confined to her
Cases of the same import are as follows: (Ex house, the execution of the will taking place in
Parte Juan Ondevilla, 13 Phil., 479, Caluya v. the sala where she lay upon a sofa. The
Domingo, 27 Phil., 330; Garcia v. Lacuesta, 90 witnesses differ as to whether the testatrix
Phil., 489). from where she lay could read what was
written at the table; and the first witness,
In the case at bar the name of the testatrix, after signing, went away from the table. These
Anacleta Abellana, does not appear written two circumstances do not impair the validity
under the will by said Abellana herself, or by of the execution of the will. The witnesses
Dr. Juan Abello. There is, therefore, a failure being in the same apartment were all present
to comply with the express requirement in and the statute does not exact that either they
the law that the testator must himself sign the are the testator shall read what has been
will, or that his name be affixed thereto by written. Had one of the witnesses left the
Some other person in his presence and by his room or placed himself so remotely therein as
express direction. to be cut off from actual participation in the
proceedings, then the subscription might not
It appearing that the above provision of the have taken place in his presence within the
law has not been complied with, we are meaning of the law.
constrained to declare that the said will of the
deceased Anacleta Abellana may not be
A second objection is suggested on this
admitted to probate. appeal, that the signature to the instrument is
defective. It ends in this form:
Wherefore, the decision appealed from is
hereby set aside and the petition for the
At the request of Señora Maria Siason.
probate of the will denied. With costs against
petitioner.
C
Paras, C.J., Bengzon, Padilla, Concepción, A
Reyes, J.B.L., Barrera, Gutierrez David, and T
Dizon, JJ., concur. A
L
I
N
G.R. No. L-4132 March 23, 1908
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 subscribing witness to a will is shown to have
pointed out the correct formula for a been in an outer room at the time when the
signature which ought to be followed, but did testator and the other witnesses attach their
not mean to exclude any other form signatures to the instrument in an inner
substantially equivalent. room, the will would be held invalid — the
attaching of the said signatures, under such
The decision of the court below is reversed, circumstances, not being done "in the
without costs, and that court is directed to presence" of the witness in the outer room.
admit the instrument before it to probate as
the last will of the testatrix. So ordered.
DECISION
Arellano, C.J., Torres and Mapa, JJ., concur.
Willard, J., concurs in the result.
CARSON, J.:

BEATRIZ NERA, ET AL., Plaintiffs-Appellees,


v. NARCISA RIMANDO, Defendant- The only question raised by the evidence in
Appellant. this case as to the due execution of the
instrument propounded as a will in the court
Valerio Fontanilla and Andres Asprer below, is whether one of the subscribing
for Appellant. witnesses was present in the small room
where it was executed at the time when the
Anacleto Diaz for Appellees. testator and the other subscribing witnesses
attached their signatures; or whether at that
SYLLABUS time he was outside, some eight or ten feet
away, in a large room connecting with the
1. EXECUTION OF WILLS; POSITION OF smaller room by a doorway, across which was
TESTATOR AND WITNESS WHEN WILL IS hung a curtain which made it impossible for
SUBSCRIBED. — The position of testator and one in the outside room to see the testator
of the witnesses to a will, at the moment of and the other subscribing witnesses in the act
the subscription by each, must be such that of attaching their signatures to the
they may see each other sign if they choose to instrument.
do so.
A majority of the members of the court is of
2. ID.; ID.; SIGNING IN THE PRESENCE OF opinion that this subscribing witness was in
EACH OTHER. — The question whether the the small room with the testator and the
testator and the subscribing witnesses to an other subscribing witnesses at the time when
alleged will sign the instrument in the they attached their signatures to the
presence of each other does not depend upon instrument, and this finding, of course,
proof of the fact that their eyes were actually disposes of the appeal and necessitates the
cast upon the paper at the moment of its affirmance of the decree admitting the
subscription by each of them, but whether at document to probate as the last will and
that moment existing conditions and the testament of the deceased.
position of the parties, with relation to each
other, were such that by merely casting their The trial judge does not appear to have
eyes in the proper direction they could have considered the determination of this question
seen each other sign. of fact of vital importance in the
determination of this case, as he was of
3. ID.; ID.; ID.; ONE WITNESS IN OUTER opinion that under the doctrine laid down in
ROOM WHEN WH.L IS SIGNED. — If one the case of Jaboneta v. Gustilo (5 Phil. Rep.,
541) the alleged fact that one of the when the witness Javellana signed the
subscribing witnesses was in the outer room document he was actually and physically
when the testator and the other describing present and in such position with relation to
witnesses signed the instrument in the inner Jaboneta that he could see everything that
room, had it been proven, would not be took place by merely casting his eyes in the
sufficient in itself to invalidate the execution proper direction and without any physical
of the will. But we are unanimously of opinion obstruction to prevent his doing so." And the
that had this subscribing witness been proven decision merely laid down the doctrine that
to have been in the outer room at the time the question whether the testator and the
when the testator and the other subscribing subscribing witnesses to an alleged will sign
witnesses attached their signatures to the the instrument in the presence of each other
instrument in the inner room, it would have does not depend upon proof of the fact that
been invalid as a will, the attaching of those their eyes were actually cast upon the paper
signatures under circumstances not being at the moment of its subscription by each of
done "in the presence" of the witness in the them, but that at that moment existing
outer room. This because the line of vision conditions and their position with relation to
from this witness to the testator and the each other were such that by merely casting
other subscribing witnesses would the eyes in the proper direction they could
necessarily have been impeded by the curtain have seen each other sign. To extend the
separating the inner from the outer one "at doctrine further would open the door to the
the moment of inscription of each possibility of all manner of fraud,
signature."cralaw virtua1aw library substitution, and the like, and would defeat
the purpose for which this particular
In the case just cited, on which the trial court condition is prescribed in the code as one of
relied, we held that:jgc:chanrobles.com.ph the requisites in the execution of a will.

"The true test of presence of the testator and The decree entered by the court below
the witnesses in the execution of a will is not admitting the instrument propounded therein
whether they actually saw each other sign, to probate as the last will and testament of
but whether they might have been seen each Pedro Rimando, deceased, is affirmed with
other sign, had they chosen to do so, costs of this instance against the Appellant.
considering their mental and physical
condition and position with relation to each Arellano, C.J., Mapa, Moreland and Trent, JJ.,
other at the moment of inscription of each concur.
signature."cralaw virtua1aw library
G.R. No. 1641 January 19, 1906
But it is especially to be noted that the
position of the parties with relation to each GERMAN JABONETA,Plaintiff-Appellant,
other at the moment of the subscription of vs. RICARDO GUSTILO, ET AL.,Defendants-
each signature, must be such that they may Appellees.
see each other sign if they choose to do so.
This, of course, does not mean that the Ledesma, Sumulong and Quintos for appellant.
testator and the subscribing witnesses may Del-Pan, Ortigas and Fisher for appellees.
be held to have executed the instrument in
the presence of each other if it appears that CARSON, J.:
they would not have been able to see each
other sign at that moment, without changing In these proceedings probate was denied the
their relative positions or existing conditions. last will and testament of Macario Jaboneta,
The evidence in the case relied upon by the deceased, because the lower court was of the
trial judge discloses that "at the moment
opinion from the evidence adduced at the Q. 1641 Why do you believe Julio
hearing that Julio Javellana, one of the Javellana signed? chanrobles virtual law
witnesses, did not attach his signature library
thereto in the presence of Isabelo Jena,
another of the witnesses, as required by the A. 1641 Because he had the pen in his
provisions of section 618 of the Code of Civil hand, which was resting on the paper, though
Procedure.chanroblesvirtualawlibrary chanro I did not actually see him
bles virtual law library sign.chanroblesvirtualawlibrary chanrobles
virtual law library
The following is a copy of the evidence which
appears of record on this particular point, Q. 1641 Explain this contradictory
being a part of the testimony of the said statement.chanroblesvirtualawlibrary chanro
Isabeo Jena: bles virtual law library

Q. 1641 Who first signed the A. 1641 After I signed I asked


will? chanrobles virtual law library permission to leave, because I was in a hurry,
and while I was leaving Julio had already
A. 1641 I signed it first, and afterwards taken the pen in his hand, as it appeared, for
Aniceto and the the purpose of signing, and when I was near
others.chanroblesvirtualawlibrary chanroble the door I happened to turn my face and I saw
s virtual law library that he had his hand with the pen resting on
the will, moving it as if for the purpose of
Q. 1641 Who were those others to whom signing.chanroblesvirtualawlibrary chanroble
you have just referred? chanrobles virtual law s virtual law library
library
Q. 1641 State positively whether Julio
A. 1641 After the witness Aniceto signed moved his hand with the pen as if for the
the will I left the house, because I was in a purpose of signing, or whether he was
hurry, and at the moment when I was leaving signing chanrobles virtual law library
I saw Julio Javellana with the pen in his hand
in position ready to sign ( en actitud de A. I believe he was signing.
firmar). I believe he signed, because he was at
the table. . . The truth and accuracy of the testimony of
.chanroblesvirtualawlibrary chanrobles this witness does not seem to have been
virtual law library questioned by any of the parties to the
proceedings, but the court, nevertheless,
Q. 1641 State positively whether Julio found the following facts:
Javellana did or did not sign as a witness to
the On the 26th day of December, 1901, Macario
will.chanroblesvirtualawlibrary chanrobles Jaboneta executed under the following
virtual law library circumstances the document in question,
which has been presented for probate as his
A. 1641 I can't say certainly, because as I will:chanrobles virtual law library
was leaving the house I saw Julio Javellana
with the pen in his hand, in position ready to Being in the house of Arcadio Jarandilla, in
sign. I believe he Jaro, in this province, he ordered that the
signed.chanroblesvirtualawlibrary chanroble document in question be written, and calling
s virtual law library Julio Javellana, Aniceto Jalbuena, and Isabelo
Jena as witnesses, executed the said
document as his will. They were all together, The purpose of a statutory requirement that
and were in the room where Jaboneta was, the witness sign in the presence of the
and were present when he signed the testator is said to be that the testator may
document, Isabelo Jena signing afterwards as have ocular evidence of the identity of the
a witness, at his request, and in his presence instrument subscribed by the witness and
and in the presence of the other two himself, and the generally accepted tests of
witnesses. Aniceto Jalbuena then signed as a presence are vision and mental apprehension.
witness in the presence of the testator, and in (See Am. & Eng. Enc. of Law, vol. 30, p. 599,
the presence of the other two persons who and cases there cited.)
signed as witnesses. At that moment Isabelo
Jena, being in a hurry to leave, took his hat In the matter of Bedell (2 Connoly (N.Y.), 328)
and left the room. As he was leaving the it was held that it is sufficient if the witnesses
house Julio Javellana took the pen in his hand are together for the purpose of witnessing the
and put himself in position to sign the will as execution of the will, and in a position to
a witness, but did not sign in the presence of actually see the testator write, if they choose
Isabelo Jena; but nevertheless, after Jena had to do so; and there are many cases which lay
left the room the said Julio Javellana signed as down the rule that the true test of vision is
a witness in the presence of the testator and not whether the testator actually saw the
of the witness Aniceto Jalbuena. witness sign, but whether he might have seen
him sign, considering his mental and physical
We can not agree with so much of the above condition and position at the time of the
finding of facts as holds that the signature of subscription. (Spoonemorevs. Cables, 66 Mo.,
Javellana was not signed in the presence of 579.)chanrobles virtual law library
Jena, in compliance with the provisions of
section 618 of the Code of Civil Procedure. The principles on which these cases rest and
The fact that Jena was still in the room when the tests of presence as between the testator
he saw Javellana moving his hand and pen in and the witnesses are equally applicable in
the act of affixing his signature to the will, determining whether the witnesses signed
taken together with the testimony of the the instrument in the presence of each other,
remaining witnesses which shows that as required by the statute, and applying them
Javellana did in fact there and then sign his to the facts proven in these proceedings we
name to the will, convinces us that the are of opinion that the statutory requisites as
signature was affixed in the presence of Jena. to the execution of the instrument were
The fact that he was in the act of leaving, and complied with, and that the lower court erred
that his back was turned while a portion of in denying probate to the will on the ground
the name of the witness was being written, is stated in the ruling appealed
of no importance. He, with the other from.chanroblesvirtualawlibrary chanrobles
witnesses and the testator, had assembled for virtual law library
the purpose of executing the testament, and
were together in the same room for that We are of opinion from the evidence of record
purpose, and at the moment when the that the instrument propounded in these
witness Javellana signed the document he proceedings was satisfactorily proven to be
was actually and physically present and in the last will and testament of Macario
such position with relation to Javellana that Jaboneta, deceased, and that it should
he could see everything which took place by therefore be admitted to
merely casting his eyes in the proper probate.chanroblesvirtualawlibrary chanrobl
direction, and without any physical es virtual law library
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 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.