SUCCESSION FEB 21 PROVISIONS + DIGESTS
III. Holographic wills; witnesses to wills; codicils and
incorporation by reference; revocation of wills and testamentary
dispositions; republication and revival of wills)
Articles  810-837, Civil Code:
Art. 810. A person may execute a holographic will which must be
entirely written, dated, and signed by the hand of the testator
himself. It is subject to no other form, and may be made in or out
of the Philippines, and need not be witnessed.(678, 688a)
Art. 811. In the probate of a holographic will, it shall be necessary
that at least one witness who knows the handwriting and
signature of the testator explicitly declare that the will and the
signature are in the handwriting of the testator. If the will is
contested, at least three of such witnesses shall be required.
In the absence of any competent witness referred to in the
preceding paragraph, and if the court deem it necessary, expert
testimony may be resorted to. (619a)
Art. 812. In holographic wills, the dispositions of the testator
written below his signature must be dated and signed by him in
order to make them valid as testamentary dispositions. (n)
Art. 813. When a number of dispositions appearing in a
holographic will are signed without being dated, and the last
disposition has a signature and a date, such date validates the
dispositions preceding it, whatever be the time of prior
dispositions. (n)
Art. 814. In case of any insertion, cancellation, erasure or
alteration in a holographic will, the testator must authenticate the
same by his full signature. (n)
Art. 815. When a Filipino is in a foreign country, he is authorized to
make a will in any of the forms established by the law of the
Page 1 of 29
country in which he may be. Such will may be probated in the
Philippines. (n)
Art. 816. The will of an alien who is abroad produces effect in the
Philippines if made with the formalities prescribed by the law of
the place in which he resides, or according to the formalities
observed in his country, or in conformity with those which this
Code prescribes. (n)
Art. 817. A will made in the Philippines by a citizen or subject of
another country, which is executed in accordance with the law of
the country of which he is a citizen or subject, and which might be
proved and allowed by the law of his own country, shall have the
same effect as if executed according to the laws of the
Philippines. (n)
Art. 818. Two or more persons cannot make a will jointly, or in the
same instrument, either for their reciprocal benefit or for the
benefit of a third person. (669)
Art. 819. Wills, prohibited by the preceding article, executed by
Filipinos in a foreign country shall not be valid in the Philippines,
even though authorized by the laws of the country where they may
have been executed. (733a) 

SUBSECTION 4. - Witnesses to Wills
Art. 820. Any person of sound mind and of the age of eighteen
years or more, and not bind, deaf or dumb, and able to read and
write, may be a witness to the execution of a will mentioned in
Article 805 of this Code. (n)
Art. 821. The following are disqualified from being witnesses to a
will:
• (1) Any person not domiciled in the Philippines;

(2) Those who have been convicted of falsification of a
SUCCESSION FEB 21 PROVISIONS + DIGESTS
document, perjury or false testimony. (n)
 stating among other things the number of pages thereof;
Art. 822. If the witnesses attesting the execution of a will are
competent at the time of attesting, their becoming subsequently
incompetent shall not prevent the allowance of the will. (n)
Art. 823. If a person attests the execution of a will, to whom or to
whose spouse, or parent, or child, a devise or legacy is given by
such will, such devise or legacy shall, so far only as concerns
such person, or spouse, or parent, or child of such person, or any
one claiming under such person or spouse, or parent, or child, be
void, unless there are three other competent witnesses to such
will. However, such person so attesting shall be admitted as a
witness as if such devise or legacy had not been made or
given. (n)
Art. 824. A mere charge on the estate of the testator for the
payment of debts due at the time of the testator's death does not
prevent his creditors from being competent witnesses to his
will. (n)
SUBSECTION 5. - Codicils and Incorporation by Reference
Art. 825. A codicil is supplement or addition to a will, made after
the execution of a will and annexed to be taken as a part thereof,
by which disposition made in the original will is explained, added
to, or altered. (n)
Art. 826. In order that a codicil may be effective, it shall be
executed as in the case of a will. (n)
Art. 827. If a will, executed as required by this Code, incorporates
into itself by reference any document or paper, such document or
paper shall not be considered a part of the will unless the
following requisites are present:
• (1) The document or paper referred to in the will must be in
existence at the time of the execution of the will;

(2) The will must clearly describe and identify the same,
Page 2 of 29


(3) It must be identified by clear and satisfactory proof as
the document or paper referred to therein; and

(4) It must be signed by the testator and the witnesses on
each and every page, except in case of voluminous books
of account or inventories. (n)

SUBSECTION 6. - Revocation of Wills and Testamentary
Dispositions
Art. 828. A will may be revoked by the testator at any time before
his death. Any waiver or restriction of this right is void. (737a)
Art. 829. A revocation done outside the Philippines, by a person
who does not have his domicile in this country, is valid when it is
done according to the law of the place where the will was made, or
according to the law of the place in which the testator had his
domicile at the time; and if the revocation takes place in this
country, when it is in accordance with the provisions of this
Code. (n)
Art. 830. No will shall be revoked except in the following cases:
• (1) By implication of law; or

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

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

SUCCESSION FEB 21 PROVISIONS + DIGESTS
Art. 831. Subsequent wills which do not revoke the previous ones
in an express manner, annul only such dispositions in the prior
wills as are inconsistent with or contrary to those contained in the
latter wills. (n)
Art. 832. A revocation made in a subsequent will shall take effect,
even if the new will should become inoperative by reason of the
incapacity of the heirs, devisees or legatees designated therein, or
by their renunciation. (740a)
Art. 833. A revocation of a will based on a false cause or an illegal
cause is null and void. (n)
Art. 834. The recognition of an illegitimate child does not lose its
legal effect, even though the will wherein it was made should be
revoked. (714) 
 allowance of Sand's holographic will. This was opposed by Clemente
 
SUBSECTION 7. - Republication and Revival of Wills
Art. 835. The testator cannot republish, without reproducing in a
subsequent will, the dispositions contained in a previous one
which is void as to its form. (n)
Art. 836. The execution of a codicil referring to a previous will has
the effect of republishing the will as modified by the codicil. (n)
Art. 837. If after making a will, the testator makes a second will
expressly revoking the first, the revocation of the second will does
not revive the first will, which can be revived only by another will
or codicil. (739a)  in the will of a house and lot located in Cabadbaran, Agusan Del Norte -


Page 3 of 29


*Cases:

1. SPOUSES ROBERTO AND THELMA AJERO, petitioners, vs. THE
COURT OF APPEALS AND CLEMENTE SAND, respondents. [G.R.
No. 106720. September 15, 1994.] -> 
FACTS: The holographic will of the late Annie Sand, who died on
November 25, 1982, was submitted for probate with the RTC of
Quezon City. In the will, Sand named as devisees, the following:
petitioners spouses Roberto and Thelma Ajero, private respondent
Clemente Sand, Meriam S. Arong, Leah Sand, Lilia Sand, Edgar Sand,
Fe Sand, Lisa S. Sand, and Dr. Jose Ajero, Sr., and their children.
On January 20, 1983, Ajero instituted Sp. Proc. No. Q-37171, for
Sand and others.
PETITIONER’S CONTENTION: They alleged that at the time of the
execution of the holographic will, Annie was of sound and disposing
mind, not acting under duress, fraud or undue influence, and was in
every respect capacitated to dispose of her estate by will. 
RESPONDENT’S CONTENTION: Clemente opposed the petition on
the grounds that: neither the testament's body nor the signature therein
was in Sand's handwriting; it contained alterations and corrections
which were not duly signed by Annie; and, the will was procured by the
Ajeros through improper pressure and undue influence. The petition
was likewise opposed by Dr. Jose Ajero - regarding that the disposition
he claimed that said property could not be conveyed by Sand in its
entirety, as she was not its sole owner.
TRIAL COURT RULING: In favor of Spouses Ajero. The trial court
admitted the decedent's holographic will to probate. It found, inter
alia: "Considering then that the probate proceedings herein must
decide only the question of identity of the will, its due execution and the
testamentary capacity of the testatrix, this probate court finds no reason
at all for the disallowance of the will for its failure to comply with the
SUCCESSION FEB 21 PROVISIONS + DIGESTS
formalities prescribed by law nor for lack of testamentary capacity of the
testatrix. For one, no evidence was presented to show that the will in
question is different from the will actually executed by the testatrix. The
only objections raised by the oppositors, are that the will was not written
in the handwriting of the testatrix which properly refers to the question
of its due execution, and not to the question of identity of will. No other
will was alleged to have been executed by the testatrix other than the
will herein presented.
CA RULING: In favor Clemente. It reversed the trial court’s decision -
dismissing the petition for probate of decedent's will. The Court of
Appeals found that, "the holographic will fails to meet the requirements
for its validity.” It held that the decedent did not comply with Articles 813
and 814 of the New Civil Code. It alluded to certain dispositions in the
will which were either unsigned and undated, or signed but not dated. It
also found that the erasures, alterations and cancellations made
thereon had not been authenticated by decedent.
ISSUE: Whether Sand’s holographic will should be allowed?
 were made on the date of the holographic will or on testator's signature,
RULING: YES, Sand’s holographic will should be allowed. A
reading of Article 813 of the New Civil Code shows that its
requirement affects the validity of the dispositions contained in
the holographic will, but not its probate. If the testator fails to sign
and date some of the dispositions, the result is that these
dispositions cannot be effectuated. Such failure, however, does
not render the whole testament void. In the case of holographic
wills, on the other hand, what assures authenticity is the
requirement that they be totally autographic or handwritten by the
testator himself,  as provided under Article 810 of the New Civil
Code, thus: "A person may execute a holographic will which must
be entirely written, dated, and signed by the hand of the testator
himself. It is subject to no other form, and may be made in or out
of the Philippines, and need not be witnessed." (Emphasis
supplied.). Failure to strictly observe other formalities will not
result in the disallowance of a holographic will that is
unquestionably handwritten by the testator. The SC affirmed when
Page 4 of 29
the Court of Appeals held that decedent Annie Sand could not
validly dispose of the house and lot located in Cabadbaran,
Agusan del Norte, in its entirety, since she shares this property
with her father's other heirs. 
Likewise, a holographic will can still be admitted to probate,
notwithstanding non- compliance with the provisions of Article 814. In
the case of Kalaw vs. Relova, 132 SCRA 237, 242 (1984), this Court
held: "Ordinarily, when a number of erasures, corrections, and
interlineations made by the testator in a holographic Will have not been
noted under his signature, . . . the Will is not thereby invalidated as a
whole, but at most only as respects the particular words erased,
corrected or interlined. Manresa gave an identical commentary when he
said 'la omision de la salvedad no anula el testamento, segun la regla
de jurisprudencia establecida en la sentencia de 4 de Abril de 1895.'" 8
(Emphasis omitted.)
Thus, unless the unauthenticated alterations, cancellations or insertions
their presence does not invalidate the will itself. The lack of
authentication will only result in disallowance of such changes.
It is also proper to note that the requirements of authentication of
changes and signing and dating of dispositions appear in provisions
(Articles 813 and 814) separate from that which provides for the
necessary conditions for the validity of the holographic will (Article 810).
The distinction can be traced to Articles 678 and 688 of the Spanish
Civil Code, from which the present provisions covering holographic wills
are taken. They read as follows:
"Article 678: A will is called holographic when the testator writes it
himself in the form and with the requisites required in Article 688.
"Article 688: Holographic wills may be executed only by persons of full
age.
"In order that the will be valid it must be drawn on stamped paper
corresponding to the year of its execution, written in its entirety by the
SUCCESSION FEB 21 PROVISIONS + DIGESTS
testator and signed by him, and must contain a statement of the year,
month and day of its execution.
"If it should contain any erased, corrected, or interlined words, the
testator must identify them over his signature.
"Foreigners may execute holographic wills in their own language."
This separation and distinction adds support to the interpretation that
only the requirements of Article 810 of the New Civil Code — and not
those found in Articles 813 and 814 of the same Code — are essential
to the probate of a holographic will.


Page 5 of 29


2. IN THE MATTER OF THE INTESTATE ESTATE OF ANDRES G. DE
JESUS AND BIBIANA ROXAS DE JESUS, SIMEON R. ROXAS &
PEDRO ROXAS DE JESUS, petitioners, vs. ANDRES R. DE JESUS,
JR., respondent. [G.R. No. 38338. January 28, 1985.]  -> 
FACTS: A special proceeding entitled "In the Matter of the Intestate
Estate of Andres G. de Jesus and Bibiana Roxas de Jesus" was filed
by petitioner Simeon R. Roxas, the brother of the deceased Bibiana
Roxas de Jesus. Roxas was appointed as administrator and the letters
of administration was granted to him. Later on, Roxas testified that he
found a notebook belonging to the deceased Bibiana R. de Jesus and
that on pages 21, 22, 23 and 24 thereof, a letter-will addressed to her
children and entirely written and signed in the handwriting of the
deceased Bibiana R. de Jesus was found. The will is dated "FEB./61"
and states: "This is my will which I want to be respected altho it is not
written by a lawyer. . .” This discovery was corroborated by the
testimonies of Pedro Roxas de Jesus and Manuel Roxas de Jesus who
likewise testified that the letter dated "FEB./61" is the holographic Will
of their deceased mother, Bibiana R. de Jesus. Both recognized
the handwriting of their mother and positively identified her signature.
They further testified that their deceased mother understood English,
the language in which the holographic Will is written, and that the date
"FEB./61" was the date when said Will was executed by their mother.
Respondent Luz R. Henson, another compulsory heir filed an
"opposition to probate" assailing the purported holographic Will of
Bibiana R. de Jesus because — (a) it was not executed in accordance
with law, (b) it was executed through force, intimidation and/or under
duress, undue influence and improper pressure, and (c) the alleged
testatrix acted by mistake and or did not intend, nor could have
intended the said Will to be her last Will and testament at the time of its
execution.
On August 24, 1973, respondent Judge Jose C. Colayco issued an
order allowing the probate of the holographic Will which he found to
have been duly executed in accordance with law.
SUCCESSION FEB 21 PROVISIONS + DIGESTS
TRIAL COURT RULING: Reconsidered his earlier order and
disallowed the probate of the holographic Will on the ground that the
word "dated" has generally been held to include the month, day, and
year. The dispositive portion of the order reads: "WHEREFORE, the
document purporting to be the holographic Will of Bibiana Roxas de
Jesus, is hereby disallowed for not having been executed as required
by the law. The order of August 24, 1973 is hereby set aside.”
PETITIONER’S CONTENTION: Roxas contends that while Article 685
of the Spanish Civil Code and Article 688 of the Old Civil Code require
the testator to state in his holographic Will the "year, month, and day of
its execution," the present Civil Code omitted the phrase "Año, mes y
dia" and simply requires that the holographic Will should be dated. The
petitioners submit that the liberal construction of the holographic Will
should prevail.
RESPONDENT’S CONTENTION: Luz Henson on the other hand
submits that the purported holographic Will is void for non-compliance
with Article 810 of the New Civil Code in that the date must contain the
year, month, and day of its execution. Henson contends that Article 810
of the Civil Code was patterned after Section 1277 of the California
Code and Section 1588 of the Louisiana Code whose Supreme Courts
had consistently ruled that the required date includes the year, month,
and day, and that if any of these is wanting, the holographic Will is
invalid. Henson further contends that Roxas cannot plead liberal
construction of Article 810 of the Civil Code because statutes
prescribing the formalities to be observed in the execution of
holographic Wills are strictly construed.
Page 6 of 29
as to its genuineness and due execution. All the children of the
testatrix agree on the genuineness of the holographic Will of their
mother and that she had the testamentary capacity at the time of
the execution of said Will. The objection interposed by the
oppositor-respondent Luz Henson is that the holographic Will is
fatally defective because the date "FEB./61" appearing on the
holographic Will is not sufficient compliance with Article 810 of
the Civil Code. This objection is too technical to be entertained. As
a general rule, the "date" in a holographic Will should include the
day, month, and year of its execution. However, when as in the
case at bar, there is no appearance of fraud, bad faith, undue
influence and pressure and the authenticity of the Will is
established and the only issue is whether or not the date "FEB./
61" appearing on the holographic Will is a valid compliance with
Article 810 of the Civil Code, probate of the holographic Will
should be allowed under the principle of substantial
compliance. This will not be the first time that this Court departs
from a strict and literal application of the statutory requirements
regarding the due execution of Wills. We should not overlook the
liberal trend of the Civil Code in the manner of execution of Wills,
the purpose of which, in case of doubt is to prevent intestacy.



ISSUE: Whether Bibiana Roxas de Jesus’ letter will should be allowed?

RULING: YES, Bibiana Roxas de Jesus’ letter will should be

allowed. We have carefully reviewed the records of this case and
found no evidence of bad faith and fraud in its execution nor was
there any substitution of Wills and Testaments. There is no
question that the holographic Will of the deceased Bibiana Roxas
de Jesus was entirely written, dated, and signed by the testatrix
herself and in a language known to her. There is also no question
SUCCESSION FEB 21 PROVISIONS + DIGESTS
3. In re Will of Francisco Varela Calderon, deceased. FRANCISCO
CARMELO VARELA, petitioner-appellee, vs. MIGUEL VARELA
CALDERON ET AL., opponents-appellants. [G.R. No. 36342. October
8, 1932.] ->  ISSUE: Whether Dr Calderon’s will should be allowed?
FACTS: The last will and testament of the late Francisco Varela
Calderon was presented for probate with the Court of First Instance of
Manila by petitioner Francisco Carmelo Varela. Said petition was
opposed by the deceased's brothers Jose, Miguel, Angel, Jesus,
Trinidad, Paula, Pilar and Maria, surnamed Varela Calderon, although,
later on, the first mentioned opponent withdrew his opposition giving as
his reason therefor that it was out of respect for the testator's wishes
because the will was executed in his own handwriting. The grounds of
the opposition are as follows: (a) That the will sought to be probated
was not holographic in character and did not comply with the requisites
prescribed by article 970 of the French Civil Code; (b) that the
witnesses to the will did not possess the qualifications required by
article 980 of the French Civil Code; (c) that for not having complied
with the requisites prescribed by the French law, said will is null and
void; (d ) that neither has it the character of an open will, not having
been executed in accordance with article 1001 of the French Civil
Code; and (e) that the provisions of article 1007 of the same Code
relative to the recording of wills were not complied with in connection
with the will in question.
The late Francisco Calderon (decedent) was a physician and a Filipino
citizen who resides in the City of Manila, where he owned real
properties. Dr Calderon traveled abroad for his health and temporarily
resided in Hendaye-Plage, France. Not feeling very well, but in the full
enjoyment of his mental faculties, he decided to make his last will and
testament (Exhibit B), on April 14, 1930, in Paris, France, with the
assistance of attorneys F. de Roussy de Sales, Gething C. Miller and
Henri Gadd. Sometime later, that is on July 15, 1930, he died in the
Grand-Hotel de Leysin Sanatorium in Switzerland.
CFI RULING: Admitted Dr Calderon’s will to probate.
PETITIONER’S CONTENTION: Calderon contend that the addition of
said clause has entirely vitiated the will, because it ceased to be a
Page 7 of 29
holographic will, neither does it possess the requisites of a public or
open will in accordance with the French law. 
RULING: YES, Dr Calderon’s will should be allowed. It is an
admitted fact that the will was written, dated and signed by the
deceased testator, for which reason, there is no doubt that it had
been made and executed in accordance with article 970 of the
French Civil Code were it not for the attestation clause which
appears at the bottom of the document. A clause drawn up in such
manner is superfluous and does not affect in any way the
essential requisites prescribed for holographic wills by the French
law, and, consequently, it has not invalidated the will nor deprived
it of its holographic character. In reaching this conclusion, the SC
based its opinion not only on the clear and conclusive provisions
of article 970 of the French Civil Code and on the decisions of the
French Court of Appeals cited in the appellee's brief, but
principally on the fact established in the depositions made by
practicing attorneys F. de Roussy de Sales, Gething C. Miller and
Henri Gadd of Paris, France, who emphatically declared that the
will in question did not lose its holographic character by the
addition of the aforementioned attestation clause and that it may
be allowed to probate in conformity with the French laws under
which it had been made and executed.
Although the original will was executed in the French language and had
been written, dated and signed by the testator with his own hand, with
the exception of the attestation clause which appears at the bottom of
the document. This fact is proved by the testimony of the appellee and
his other witnesses, including the depositions, and is admitted by the
appellants. The petition for the allowance and probate of said will is
based on the provisions of article 970 of the French Civil Code and and
on section 635 of the Code of the Civil Procedure in force in this
jurisdiction which provides that a will made out of the Philippine Islands
in accordance with the laws in force in the country in which it was made
and which may be allowed and admitted to probate therein. 
SUCCESSION FEB 21 PROVISIONS + DIGESTS
The petition for the allowance and probate of said will is based on the
provisions of article 970 of the French Civil Code which considers as a
holographic will that which is made or executed, dated and signed by
the testator in his own handwriting without the necessity of any other
formality, and on section 635 of the Code of the Civil Procedure in force
in this jurisdiction which provides that a will made out of the Philippine
Islands in accordance with the laws in force in the country in which it
was made and which may be allowed and admitted to probate therein,
may, also be proved, allowed and recorded in the Philippine Islands in
the same manner and with the same effect as if executed in the latter
country. Both provisions of law literally copied from the English text,
read as follows:
"(Article 970, French Civil Code)
"A holographic will is not valid unless it is entirely written, dated, and
signed by the testator. No other formality is required.
"(Article 635, Code of Civil Procedure)
"Will made out of the Philippine Islands. — A will made out of the
Philippine Islands which might be proved and allowed by the laws of the
state or country in which it was made, may be proved, allowed, and
recorded in the Philippine Islands, and shall have the same effect as if
executed according to the laws of these Islands."
As we have already said,The court which originally took cognizance of
the case decided that such circumstance does not invalidate the will. 
 

Page 8 of 29


4. TESTATE ESTATE OF FELICIDAD ESGUERRA ALTO-YAP
deceased. FAUSTO E. GAN, petitioner-appellant , vs. ILDEFONSO
YAP, oppositor- appellee. [G.R. No. L-12190. August 30, 1958.]  -> 
FACTS: On November 20, 1951, Felicidad Esguerra Alto Yap died of
heart failure in the University of Santo Tomas Hospital, leaving
properties in Pulilan, Bulacan, and in the City of Manila. On March 17,
1952, petitioner Fausto E. Gan initiated these proceedings with the
Court of First Instance of Manila with a petition for the probate of a
holographic will allegedly executed by Felicidad. Opposing the petition,
her surviving husband respondent Ildefonso Yap asserted that Felicidad
had not left any will, nor executed any testament during her lifetime. 
The will itself was not presented. Gan tried to establish its contents and
due execution by the statements in open court of Felina Esguerra,
Primitivo Reyes, Socorro Olarte and Rosario Gan Jimenez. Felicidad
mentioned during a trip her desire to make a will to Vicente. The latter
asked his nephew, Gan, on the formalities of making a will. Vicente
relayed what Gan told him to Felicidad. in the morning of November 5,
1951, in her residence at Juan Luna Street, Manila, Felicidad wrote,
signed and dated a holographic will substantially of the tenor above
transcribed, in the presence of her niece, Felina Esguerra (daughter of
Vicente), who was invited to read it. In the afternoon of that day,
Felicidad was visited by a distant relative, Primitivo Reyes, and she
allowed him to read the will in the presence of Felina Esguerra, who
again read it.
Nine days later, he had other visitors: Socorro Olarte a cousin, and
Rosario Gan Jimenez, a niece. To these she showed the will, again in
the presence of Felina Esguerra, who read it for the third time.
When on November 19, 1951, Felicidad was confined at the U.S.T.
Hospital for her last illness, she entrusted the said will, which was
contained in a purse, to Felina Esguerra. But a few hours later,
Ildefonso Yap, her husband, asked Felina for the purse; and being
afraid of him by reason of his well-known violent temper, she- delivered
it to him. Thereafter, in the same day, Ildefonso Yap returned the purse
SUCCESSION FEB 21 PROVISIONS + DIGESTS
to Felina, only to demand it the next day shortly before the death of
Felicidad. Again, Felina handed it to him but not before she had taken
the purse to the toilet, opened it and read the will for the last time.
CFI RULING: Refused to probate Felicidad’s will. The trial judge
refused to credit the petitioner's evidence for several reasons, the most
important of which were these: (a) if according to his evidence, the
decedent wanted to keep her will a secret, so that her husband would
not know it, it is strange she executed it in the presence of Felina
Esguerra, knowing as she did that witnesses were unnecessary; (b) in
the absence of a showing that Felina was a confidant of the decedent it
is hard to believe that the latter would have allowed the former to see
and read the will several times; (c) it is improbable that the decedent
would have permitted Primitivo Reyes, Rosario Gan Jimenez and
Socorro Olarte to read her will, when she precisely wanted its contents
to remain a secret during her lifetime; (d) it is also improbable that her
purpose being to conceal the will from her husband she would carry it
around, even to the hospital, in her purse which could for one reason or
another be opened by her husband; (e) if it is true that the husband
demanded the purse from Felina in the U.S.T. Hospital and that the will
was there, it is hard to believe that he returned it without destroying the
will, the theory of the petitioner being precisely that the will was
executed behind his back for fear he will destroy it. In the face of these
improbabilities, the trial judge had to accept the oppositor's evidence
that Felicidad did not and could not have executed such holographic
will.
ISSUE: Whether Felicidad’s holographic will may be probated upon the
testimony of witnesses who have allegedly seen it and who declare that
it was in the handwriting of the testator?
RULING: NO, Felicidad’s holographic will may be probated upon
the testimony of witnesses who have allegedly seen it and who
declare that it was in the handwriting of the testator. Obviously,
when the will itself is not submitted, these means of opposition,
and of assessing the evidence are not available. And then the only
guaranty of authenticity— the testator's handwriting — has
disappeared. Undoubtedly, the intention of the law is to give the
Page 9 of 29
near relatives the choice of either complying with the will if they
think it authentic, or to oppose it, if they think it spurious. Such
purpose is frustrated when the document is not presented for their
examination. If it be argued that such choice is not essential,
because anyway the relatives may oppose, the answer is that their
opposition will be at a distinct disadvantage, and they have the
right and privilege to comply with the will, if genuine, a right which
they should not be denied by withholding inspection thereof from
them. All of which can only mean: the courts will not distribute the
property of the deceased in accordance with his holographic will,
unless they are shown his handwriting and signature. Taking all
the above circumstances together, we reach the conclusion that
the execution and the contents of a lost or destroyed holographic
will may not be proved by the bare testimony of witnesses who
have seen and/or read such will.
How can the oppositor prove that such document was not in the
testator's handwriting? His witnesses who know testator's handwriting
have not examined it. His experts can not testify, because there is no
way to compare the alleged testament with other documents admittedly,
or proven to be, in the testator's hand. The oppositor will, therefore, be
caught between the upper millstone of his lack of knowledge of the will
or the form thereof, and the nether millstone of his inability to prove its
falsity. Again the proponent's witnesses may be honest and truthful; but
they may have been shown a faked document, and having no interest
to check the authenticity thereof have taken no pains to examine and
compare. Or they may be authenticity thereof have taken no pains to
examine and compare. Or they may be perjurers boldly testifying, in the
knowledge that none could convict them of perjury, because no one
could prove that they have not "been shown" a document which they
believed was in the handwriting of the deceased. Of course, the
competency of such perjured witnesses to testify as to the handwriting
could be tested by exhibiting to them other writings sufficiently similar to
those written by the deceased; but what witness or lawyer would not
foresee such a move and prepare for it? His knowledge of the
handwriting established, the witness (or witnesses) could simply stick to
his statement: he has seen and read a document which he believed
was in the deceased's handwriting. And the court and the oppositor
SUCCESSION FEB 21 PROVISIONS + DIGESTS
would practically be at the mercy of such witness (or witnesses) not
only as to the execution, but also as to the contents of the will. Does the
law permit such a situation? This must be so, because the Civil Code
requires it to be protocoled and presented to the judge, (Art. 689) who
shall subscribe it and require its identity to be established by the three
witnesses who depose that they have no reasonable doubt that the will
was written by the testator (Art. 691). And if the judge considers that the
identity of the will has been proven he shall order that it be filed (Art.
693). All these, imply presentation of the will itself. Art. 692 bears the
same implication, to a greater degree. It requires that the surviving
spouse and the legitimate ascendants and descendants be summoned
so that they may make "any statement they may desire to submit with
respect to the authenticity of the will." As it is universally admitted that
the holographic will is usually done by the testator and by himself alone,
to prevent others from knowing either its execution or its contents, the
above article 692 could not have the idea of simply permitting such
relatives to state whether they know of the will, but whether in the face
of the document itself they think the testator wrote it. Obviously, this
they can’t do unless the will itself is presented to the Court and to them.
 Parenthetically, it may be added that even the French Civil Law
considers the loss of the holographic will to be fatal. (Planiol y Ripert,
Derecho Civil Frances, traduccion por Diaz Cruz, 1946, Tomo V, page
555).
 
 

 

 
Page 10 of 29


5. IN THE MATTER OF THE PETITION TO APPROVE THE WILL OF
RICARDO B. BONILLA, deceased, MARCELA RODELAS, petitioner-
appellant, vs. AMPARO ARANZA, ET AL., oppositors-appellees, ATTY.
LORENZO SUMULONG, intervenor. [G.R. No. L-58509. December 7,
1982.] -> 
FACTS: On January 11, 1977, petitioner Marcela Rodelad filed a
petition with the Court of First Instance of Rizal for the probate of the
holographic will of Ricardo B. Bonilla and the issuance of letters
testamentary in her favor. This was opposed by the appellees Amparo
Aranza Bonilla, Wilferine Bonilla Treyes, Expedita Bonilla Frias and
Ephraim Bonilla on the ground that the alleged photostatic copy of the
will which was presented for probate, cannot stand in lieu of the lost
original, for the law regards the document itself as the material proof of
the authenticity of the said will, citing the case of Gan vs. Yap, 104 Phil.
509, 522.
CFI RULING: Dismissed the petition for the probate of the will of
Ricardo B. Bonilla.
ISSUE: Whether a holographic will which was lost or can not be found
can be proved by means of a photostatic copy?
RULING: YES, a holographic will which was lost or can not be
found can be proved by means of a photostatic copy, since the
authenticity of the handwriting of the deceased can he determined
by the probate court, as comparison can be made with the
standard writings of the testator.
Pursuant to Article 811 of the Civil Code, probate of holographic wills is
the allowance of the will by the court after its due execution has been
proved. The probate may be uncontested or not. If uncontested, at least
one identifying witness is required and, if no witness is available,
experts may be resorted to. If contested, at least three identifying
witnesses are required. However, if the holographic will has been lost or
destroyed and no other copy is available, the will can not be probated
because the best and only evidence is the handwriting of the testator in
SUCCESSION FEB 21 PROVISIONS + DIGESTS
said will. It is necessary that there be a comparison between sample
handwritten statements of the testator and the handwritten will. But, a
photostatic copy or xerox copy of the holographic will may be allowed
because comparison can be made with the standard writings of the
testator. In the case of Gan vs. Yap, 104 Phil., in the Footnote of its
decision, it says that "Perhaps it may be proved by a photographic or
photostatic copy. Even a mimeographed or carbon copy; or by other
similar means, if any, whereby the authenticity of the handwriting of the
deceased may be exhibited and tested before the probate court."
Evidently, the photostatic or xerox copy of the lost or destroyed
holographic will may be admitted because then the authenticity of the
handwriting of the deceased can be determined by the probate court.
 


6. FEDERICO AZAOLA, petitioner-appellant , vs. CESARIO
SINGSON, oppositor-appellee. [G.R. No. L-14003. August 5, 1960.] ->  testator, under penalty of having the probate denied. Since no
FACTS: On September 9, 1957, Fortunata S. Vda. de Yance died at 13
Luskot, Quezon City. Petitioner Francisco Azaola, presented Fotunata’s
holographic will for probate. Maria Milagros Azaola was made the sole
heir as against the nephew of the Fortunate, respondent Cesario
Singson. The latter opposed the probate of the will on the grounds that
(1) the execution of the will was procured by undue and improper
pressure and influence on the part of Federico and Maria, and (2) that
Fortunata did not seriously intend the instrument to be her last will, and
that the same was actually written either on the 5th or 6th day of August
1957 and not on November 20, 1956 as appears on the will.
PROBATE COURT RULING: Denied the probate of Fortunata’s will on
the ground that under Article 811 of the Civil Code, the proponent must
present three witnesses who could declare that the will and the
signature are in the writing of the testatrix, the probate being contested;
and because the lone witness presented by the proponent "did not
prove sufficiently that the body of the will was written in the handwriting
of the testatrix."
Page 11 of 29
PETITIONER’S CONTENTION: Federico contends that first, that he
was not bound to produce more than one witness because the will's
authenticity was not questioned; and second, that Article 811 does not
mandatorily require the production of three witnesses to identify the
handwriting and signature of a holographic will, even if its authenticity
should be denied by the adverse party.
ISSUE: Whether Fortunata’s will should be allowed even if only one
witness was presented?
RULING: YES, Fortunata’s will should be allowed even if only one
witness was presented. Since the authenticity of the will was not
contested, he was not required to produce more than one witness;
but even if the genuineness of the holographic will were
contested, we are of the opinion that Article 811 of our present
Civil Code can not be interpreted as to require the compulsory
presentation of three witnesses to identify the handwriting of the
witness may have been present at the execution of a holographic
will, none being required by law (Art. 810, new Civil Code), it
becomes obvious that the existence of witnesses possessing the
requisite qualifications is a matter beyond the control of the
proponent. For it is not merely a question of finding and
producing any three witnesses; they must be witnesses "who
know the handwriting and signature of the testator" and who can
declare (truthfully, of course, even if the law does not so express)
"that the will and the signature are in the handwriting of the
testator". There may be no available witness acquainted with the
testator's hand; or even if so familiarized, the witnesses may be
unwilling to give a positive opinion. Compliance with the rule of
paragraph 1 of Article 811 may thus become an impossibility. That
is evidently the reason why the second paragraph of Article 811
prescribes that — "in the absence of any competent witness
referred to in the preceding paragraph, and if the court deems it
necessary, expert testimony may be resorted to.” As can be seen,
the law foresees the possibility that no qualified witness may be
found (or what amounts to the same thing, that no competent
witness may be willing to testify to the authenticity of the will), and
SUCCESSION FEB 21 PROVISIONS + DIGESTS
provides for resort to expert evidence to supply the deficiency. It
may be true that the rule of this article (requiring that three
witnesses be presented if the will is contested and only one if no
contest is had) was derived from the rule established for ordinary
testaments (cf. Cabang vs. Delfinado, 45 Phil., 291;
Tolentino vs. Francisco, 57 Phil. 742). But it can not be ignored
that the requirement can be considered mandatory only in the
case of ordinary testaments, precisely because the presence of at
least three witnesses at the execution of ordinary wills is made by
law essential to their validity (Art. 805). Where the will is
holographic no witness need be present (Art. 10), and the rule
requiring production of three witnesses must be deemed merely
permissive if absurd results are to be avoided.
Again, under Article 811, the resort to expert evidence is conditioned by
the words "if the Court deem it necessary", which reveal that what the
law deems essential is that the Court should be convinced of the will's
authenticity. Where the prescribed number of witnesses is produced
and the court is convinced by their testimony that the will is genuine, it
may consider it unnecessary to call for expert evidence. On the other
hand, if no competent witness is available, or none of those produced is
convincing, the Court may still, and in fact it should, resort to
handwriting experts. The duty of the court, in fine, is to exhaust all
available lines of inquiry, for the state is as much interested as the
proponent that the true intention of the testator be carried into effect.
Article 811 of the Civil Code of the Philippines is to the following
effect: "ART. 811. In the probate of a holographic will, it shall be
necessary that at least one witness who knows the handwriting and
signature of the testator explicitly declare that the will and the signature
are in the handwriting of the testator. If the will is contested, at least
three of such witnesses shall be required. In the absence of any
competent witness referred to in the preceding paragraph, and if the
court deems it necessary, expert testimony may be resorted to. (691a)"  the writing treated or admitted as genuine by the party against whom
Page 12 of 29


7. EUGENIA RAMONAL CODOY, and MANUEL RAMONAL,
petitioners, vs. EVANGELINE R. CALUGAY, JOSEPHINE SALCEDO,
and EUFEMIA PATIGAS, respondents. [G.R. No. 123486. August 12,
1999.] -> 
FACTS: On April 6, 1990, respondents Evangeline Calugay, Josephine
Salcedo and Eufemia Patigas, devisees and legatees of the
holographic will of the deceased Matilde Seño Vda. de Ramonal, filed
with the Regional Trial Court, Misamis Oriental, Branch 18, a petition for
probate of the holographic will of Matilde, who died on January 16,
1990. In the petition, Calugay, Salcedo and Patigas claimed that
Matilde was of sound and disposing mind when she executed the will
on August 30, 1978, and that there was no fraud, undue influence, and
duress employed in the person of Matilde, and the will was written
voluntarily. The assessed value of the decedent's property, including all
real and personal property was about P400,000.00, at the time of her
death. The holographic will which was written in Visayan, is translated
in English.
On June 28, 1990, petitioners Eugenia Ramonal Codoy and Manuel
Ramonal filed an opposition to the petition for probate, alleging that the
holographic will was a forgery and that the same is even illegible. This
gives an impression that a "third hand" of an interested party other than
the "true hand" of Matilde Seño Vda. de Ramonal executed the
holographic will.
Augusto Neri, Clerk of Court, Court of First Instance of Misamis
Oriental, where the special proceedings for the probate of the
holographic will of the deceased was filed. He produced and identified
the records of the case. The documents presented bear the signature
of the deceased, Matilde Seño Vda. de Ramonal, for the purpose of
laying the basis for comparison of the handwriting of the testatrix, with
the evidence is offered.
Generosa Senon, election registrar of Cagayan de Oro, was presented
to produce and identify the voter's affidavit of the decedent. However,
SUCCESSION FEB 21 PROVISIONS + DIGESTS
the voters' affidavit was not produced for the same was already
destroyed and no longer available.
Matilde Ramonal Binanay, testified that the deceased Matilde Seño
Vda. de Ramonal was her aunt, and that after the death of Matilde's
husband, the latter lived with her in her parent's house for eleven (11)
years, from 1958 to 1969. During those eleven (11) years of close
association with the deceased, she acquired familiarity with her
signature and handwriting as she used to accompany her (deceased
Matilde Seño Vda. de Ramonal) in collecting rentals from her various
tenants of commercial buildings, and the deceased always issued
receipts. In addition to this, she (witness Matilde Binanay) assisted the
deceased in posting the records of the accounts, and carried personal
letters of the deceased to her creditors. 
Matilde Ramonal Binanay further testified that at the time of the death
of Matilde Vda. de Ramonal, she left a holographic will dated August
30, 1978, which was personally and entirely written, dated and signed,
by the deceased and that all the dispositions therein, the dates, and the
signatures in said will, were that of the deceased.
Fiscal Rodolfo Waga testified that before he was appointed City Fiscal
of Cagayan de Oro, he was a practicing lawyer, and handled all the
pleadings and documents signed by the deceased in connection with
the intestate proceedings of her late husband, as a result of which he is
familiar with the handwriting of the latter. He testified that the signature
appearing in the holographic will was similar to that of the deceased,
Matilde Seño Vda. de Ramonal, but he can not be sure.
The fifth witness presented was Mrs. Teresita Vedad, an employee of
the Department of Environment and Natural Resources, Region 10.
She testified that she processed the application of the deceased for
pasture permit and was familiar with the signature of the deceased,
since the deceased signed documents in her presence, when the latter
was applying for pasture permit.
Finally, Evangeline Calugay, one of the respondents, testified that she
had lived with the deceased since birth, and was in fact adopted by the
Page 13 of 29
latter. That after a long period of time she became familiar with the
signature of the deceased. She testified that the signature appearing in
the holographic will is the true and genuine signature of Matilde Seño
Vda. de Ramonal. 
PETITIONER’S CONTENTION: Petitioners argued that the repeated
dates incorporated or appearing on the will after every disposition is out
of the ordinary. If the deceased was the one who executed the will, and
was not forced, the dates and the signature should appear at the
bottom after the dispositions, as regularly done and not after every
disposition. And assuming that the holographic will is in the handwriting
of the deceased, it was procured by undue and improper pressure and
influence on the part of the bene ciaries, or through fraud and trickery.
RESPONDENT’S CONTENTION: Respondents presented six (6)
witnesses and various documentary evidence. 
ISSUE: Whether Matilde’s will should be allowed?
RULING: NO, Matilde’s will should not be allowed.  The Court
cannot eliminate the possibility of a false document being
adjudged as the will of the testator, which is why if the
holographic will is contested, that law requires three witnesses to
declare that the will was in the handwriting of the deceased. Based
on the language used, that Article 811 of the Civil Code is
mandatory. The word "shall" connotes a mandatory order. We
have ruled that "shall" in a statute commonly denotes an
imperative obligation and is inconsistent with the idea of
discretion and that the presumption is that the word "shall," when
used in a statute is mandatory.” Since the will was found not in the
personal belongings of the deceased but with one of the
respondents, who kept it even before the death of the deceased. In
the testimony of Ms. Binanay, she revealed that the will was in her
possession as early as 1985, or five years before the death of the
deceased. There was no opportunity for an expert to compare the
signature and the handwriting of the deceased with other
documents signed and executed by her during her lifetime. The
only chance at comparison was during the cross-examination of
SUCCESSION FEB 21 PROVISIONS + DIGESTS
Ms. Binanay when the lawyer of petitioners asked Ms. Binanay to
compare the documents which contained the signature of the
deceased with that of the holographic will and she is not a
handwriting expert. Even the former lawyer of the deceased
expressed doubts as to the authenticity of the signature in the
holographic will.
A visual examination of the holographic will convince us that the strokes
are different when compared with other documents written by the
testator. The signature of the testator in some of the disposition is not
readable. There were uneven strokes, retracing and erasures on the
will.Comparing the signature in the holographic will dated August 30,
1978, 33 and the signatures in several documents such as the
application letter for pasture permit dated December 30, 1980, 34 and a
letter dated June 16, 1978, 35 the strokes are different. In the letters,
there are continuous flows of the strokes, evidencing that there is no
hesitation in writing unlike that of the holographic will. We, therefore,
cannot be certain that the holographic will was in the handwriting by the
deceased. Laws are enacted to achieve a goal intended and to guide
against an evil or mischief that aims to prevent. In the case at bar, the
goal to achieve is to give effect to the wishes of the deceased and the
evil to be prevented is the possibility that unscrupulous individuals who
for their benefit will employ means to defeat the wishes of the testator.
 
Page 14 of 29


8. PAULA DE LA CERNA, ET AL., petitioners, vs. MANUELA
REBACA POTOT, ET AL., and THE HONORABLE COURT OF
APPEALS, respondents. [G.R. No. L-20234. December 23, 1964.]  -> 
FACTS: On May 9, 1939, the spouses, Bernabe de la Cerna and
Gervasia Rebaca, executed a joint last will and testament in the local
dialect whereby they willed that the two parcels of land as well as its
respective improvements which they acquired during their marriage
shall be given to their niece, respondent Manuela Rebaca Potot. It is
stated there that while each of the testator is yet living, he or she will
continue to enjoy the fruits of the two lands aforementioned. Later on,
Bernabe de la Cerna died on August 30, 1939, and the aforesaid will
was submitted to probate by said Gervasia and Manuela before the
Court of First Instance of Cebu, this was allowed for probate by the
latter court. Upon the death of Gervasia Rebaca on October 14, 1952,
another petition for the probate of the same will insofar as Gervasia
was concerned was filed on November 6, 1952, on the same Court of
First Instance of Cebu, but for failure of Manuela R. Potot, and her
attorney, Manuel Potot to appear, for the hearing of said petition, the
case was dismissed on March 30, 1954 (Spec. Proc. No. 1016-R, In the
matter of the Probate of the Will of Gervasia Rebaca).”
CFI RULING: Ordered the petition heard and declared the testament
null and void, for being executed contrary to the prohibition of joint wills
in the Civil Code (Art. 669, Civil Code of 1889 and Art. 818, Civil Code
of the Philippines); 
CA RULING: Reversed the CFI ruling, on the ground that the decree of
probate in 1939 was issued by a court of probate jurisdiction and
conclusive on the due execution of the testament. Further, the Court of
Appeals declared that ". . . It is true the law (Art. 669, old Civil Code;
Art. 818, new Civil Code) prohibits the making of a will jointly by two or
more persons either for their reciprocal benefit or for the benefit of a
third person. However, this form of will has long been sanctioned by
use, and the same has continued to be used; and when, as in the
present case, one such joint last will and testament has been admitted
to probate by final order of a Court of competent jurisdiction, there
SUCCESSION FEB 21 PROVISIONS + DIGESTS Page 15 of 29
seems to be no alternative except to give effect to the provisions law, that should have been corrected by appeal, but which did not affect
thereof that are not contrary to law, as was done in the case of the jurisdiction of the probate court, nor the conclusive effect of its final
Macrohon vs. Saavedra, 51 Phil. 267, wherein our Supreme Court gave decision, however erroneous. A  final judgment rendered on a petition
effect to the provisions of the joint will therein mentioned, saying for the probate of a will is binding upon the whole world (Manalo vs.
'assuming that the joint will in question is valid'." Paredes, 47 Phil. 938; In re Estate of Johnson, 39 Phil. 156); and public
policy and sound practice demand that at the risk of occasional errors,
ISSUE: Whether the joint will shall be allowed? judgment of courts should become final at some definite date fixed by
law. Interest rei publicae ut nis sit litium (Dy Cay vs. Cross eld, 38 Phil.
RULING: NO, it shall not be allowed as to the participation of the 521, and other cases cited in 2 Moran, Comments on the Rules of
deceased Gervasia Rebaca in the properties in question. The Court 1963 Ed., p. 322).
probate decree in 1939 could only affect the share of the deceased
husband, Bernabe de la Cerna. It could not include the disposition Petitioners, as heirs and successors of the late Bernabe de la Cerna,
of the share of the wife, Gervasia Rebaca, who was then still alive, are concluded by the 1939 decree admitting his will to probate. The
and over whose interest in the conjugal properties the probate contention that being void the will cannot be validated, overlooks that
court acquired no jurisdiction, precisely because her estate could the ultimate decision on whether an act is valid or void rests with the
not then be in issue. Be it remembered that prior to the Civil Code, courts, and here they have spoken with finality when the will was
a will could not be probated during the testator's lifetime. It probated in 1939. On this count, the dismissal of their action for
follows that the validity of the joint will, in so far as the estate of partition was correct.
the wife was concerned, must be, on her death, reexamined and
adjudicated de novo, since a joint will is considered a separate will
of each testator. Therefore, the undivided interest of Gervasia
Rebaca should pass upon her death to her heirs intestate, and not
exclusively to the testamentary heir, unless some other valid will
in her favor is shown to exist, or unless she be the only heir
intestate of said Gervasia. It is unnecessary to emphasize that the
fact that joint wills should be in common usage could not make
them valid when our Civil Codes consistently invalidated them,
because laws are only repealed by other subsequent laws, and no
usage to the contrary may prevail against their observance (Art. 5,
Civ. Code of 1889; Art. 7, Civil Code of the Philippines of 1950).

The appealed decision correctly held that the final decree of probate,
entered in 1939 by the Court of First Instance of Cebu (when the
testator, Bernabe de la Cerna died), has conclusive effect as to his last
will and testament, despite the fact that even then the Civil Code
already decreed the invalidity of joint wills, whether in favor of the joint
testators, reciprocally, or in favor of a third party (Art. 669, old Civil
Code). The error thus committed by the probate court was an error of
SUCCESSION FEB 21 PROVISIONS + DIGESTS


9. RIZALINA GABRIEL GONZALES, petitioner, vs. HONORABLE
COURT OF APPEALS and LUTGARDA SANTIAGO,
respondents. [G.R. No. L-37453. May 25, 1979] -> 
FACTS: It appears that on June 24, 1961, herein private respondent
Lutgarda Santiago filed a petition with the Court of First Instance of
Rizal docketed as Special Proceedings No. 3617, for the probate of a
will alleged to have been executed by the deceased Isabel Gabriel and
designating therein petitioner Rizalina Gabriel Gonzales as the principal
beneficiary and executrix. There is no dispute in the records that the
late Isabel Andres Gabriel died as a widow and without issue in the
municipality of Navotas, province of Rizal her place of residence, on
June 7, 1961 at the age of eighty-five (85), having been born in 1876. It
is likewise not controverted that Lutgarda and Rizalina are nieces of
Isabel, and that Lutgarda, with her husband and children, lived with
Isabel at the latter's residence prior and up to the time of her death.
The will submitted for probate, Exhibit "F", which is typewritten and in
Tagalog, appears to have been executed in Manila on the 15th day of
April, 1961, or barely two (2) months prior to the death of Isabel
Gabriel. It consists of five (5) pages, including the pages whereon the
attestation clause and the acknowledgment of the notary public were
written. The signatures of Isabel appear at the end of the will on page
four and at the left margin of all the pages. The attestation clause is
found on page four, at the bottom thereof, under the heading
"Pangalan", are written the signatures of Matilde D. Orobia, Celso D.
Gimpaya and Maria R. Gimpaya, and opposite the same, under the
heading "Tirahan", are their respective places of residence, 961
Highway 54, Philamlife, for Miss Orobia, and 12 Dagala St., Navotas,
Rizal, for the two Gimpayas. Their signatures also appear on the left
margin of all the other pages. The will is paged by typewritten words as
follows: "Unang Dahon" and underneath "(Page One)", "Ikalawang
Dahon" and underneath "(Page Two)", etc., appearing at the top of
each page. It also contains: The herein private respondent Lutgarda
Santiago, who was described in the will by the testatrix as "aking mahal
na pamangkin na aking pinalaki, inalagaan at minahal na katulad ng
isang tunay na anak" and named as universal heir and executor, were
Page 16 of 29
bequeathed all properties and estate, real or personal, already
acquired, or to be acquired, in her (testatrix's) name, after satisfying the
expenses, debts and legacies as aforementioned.
The petition was opposed by Rizalina, assailing the document
purporting to be the will of Isabel on the following grounds:
1. that the same is not genuine; and in the alternative
2. that the same was not executed and attested as required by
law;
3. that, at the time of the alleged execution of the purported will,
the decedent lacked testamentary capacity due to old age and
sickness; and in the second alternative

 4. that the purported will was procured through undue and
improper pressure and influence on the part of the principal
beneficiary, and/or of some other person for her benefit.
CFI RULING: Disallowed the will. 
CA RULING: Upon consideration of the evidence, reversed the trial
court's decision and allowed the probate of the will. It held that the will
in question was signed and executed by the deceased Isabel Gabriel
on April 15, 1961 in the presence of the three attesting witnesses,
Matilde Orobia, Celso Gimpaya and Maria Gimpaya, signing and
witnessing the document in the presence of the deceased and of each
other as required by law, hence allowed probate.
ISSUE: Whether the will should be allowed?
RULING: YES, the will should be allowed for probate. It complied
with the qualifications under Article 820 of the Civil Code. Most
importantly, the instrumental witnesses must be competent and
their testimonies must be credible even if evidence was not first
presented to establish that before the court allows the probate of
the will they have attested. We rule that the respondent Court's
factual ndings upon its summation and evaluation of the evidence
SUCCESSION FEB 21 PROVISIONS + DIGESTS
on record is unassailable that: "From the welter of evidence
presented, we are convinced that the will in question was
executed on April 15, 1961 in the presence of Matilde Orobia,
Celso Gimpaya and Maria Gimpaya signing and witnessing the
same in the will on a table with Isabel Gabriel, Celso Gimpaya and
Maria Gimpaya sitting around the table. Atty. Paraiso, after
finishing the notarial act, then delivered the original to Isabel
Gabriel and retained the other copies for his file and notarial
register. A few days following the signing of the will, Isabel
Gabriel, Celso Gimpaya and another photographer arrived at the
office of Atty. Paraiso and told the lawyer that she wanted another
picture taken because the first picture did not turn out good. The
lawyer told her that this cannot be done because the will was
already signed but Isabel Gabriel insisted that a picture be taken,
so a simulated signing was performed during which incident
Matilde Orobia was not present.”  Rizalina's exacerbation centers
on the supposed incredibility of the testimonies of the witnesses
for the proponent of the will, their alleged evasions,
inconsistencies and contradictions. But in the case at bar, the
three instrumental witnesses who constitute the best evidence of
the will-making have testified in favor of the probate of the will. So
has the lawyer who prepared it, one learned in the law and long in
the practice thereof, who thereafter notarized it. All of them are
disinterested witnesses who stand to receive no benefit from the
testament. The signatures of the witnesses and the testatrix have
been identified on the will and there is no claim whatsoever and by
anyone, much less the petitioner, that they were not genuine. In
the last and final analysis, the herein conflict is factual and we go
back to the rule that the Supreme Court cannot review and revise
the findings of facts of the respondent Court of Appeals.
In fine, We state the rule that the instrumental witnesses in order to be
competent must be shown to have the qualifications under Article 820
of the Civil Code and none of the disqualifications under Article 821 and
for their testimony to be credible, that is worthy of belief and entitled to
credence, it is not mandatory that evidence be first established on
record that the witnesses have a good standing in the community or
that they are honest and upright or reputed to be trustworthy and
Page 17 of 29
reliable, for a person is presumed to be such unless the contrary is
established otherwise. In other words, the instrumental witnesses must
be competent and their testimonies must be credible before the court
allows the probate of the will they have attested. We, therefore, reject
Rizalina's position that it was fatal for respondent not to have
introduced prior and independent proof of the fact that the witnesses
were "credible witnesses", that is, that they have a good standing in the
community and reputed to be trustworthy and reliable. 




10. AGAPITA N. CRUZ, petitioner, vs. HON. JUDGE GUILLERMO P.
VILLASOR, Presiding Judge of Branch I, Court of First Instance of
Cebu, and MANUEL B. LUGAY, respondents. [G.R. No. L-32213.
November 26, 1973.] -> 
FACTS: The last will and testament of the late Valente Z. Cruz was
presented for probate by respondent and purported executor Manuel
Lugay. The probate was opposed by petitioner Agapita Cruz, who is the
spouse of Valente. Agapita alleged that the will was executed through
fraud, deceit, misrepresentation and undue in uence; that the said
instrument was executed without the testator having been fully informed
of the contents thereof, particularly as to what properties he was
disposing; and that the supposed last will and testament was not
executed in accordance with law.
Of the three instrumental witnesses thereto, namely, Deogracias T.
Jamaoas, Jr., Dr. Francisco Pañares, and Atty. Angel H. Teves, Jr., one
of them, the last named, is at the same time the Notary Public before
whom the will was supposed to have been acknowledged. Reduced to
simpler terms, the question was attested and subscribed by at least
three credible witnesses in the presence of the testator and of each
other, considering that the three attesting witnesses must appear before
the notary public to acknowledge the same.
PROBATE COURT: Allowed the will for probate.
SUCCESSION FEB 21 PROVISIONS + DIGESTS
PETITIONER’S CONTENTION: As the third witness is the notary public
himself, petitioner argues that the result is that only two witnesses
appeared before the notary public to acknowledge the will.
RESPONDENT’S CONTENTION: Maintains that there is substantial
compliance with the legal requirement of having at least three attesting
witnesses even if the notary public acted as one of them, bolstering up
his stand with 57 American Jurisprudence, p. 227 which, insofar as
pertinent, reads as follows: "It is said that there are practical reasons for
upholding a will as against the purely technical reason that one of the
witnesses required by law signed as certifying to an acknowledgment of
the testator's signature under oath rather than as attesting the
execution of the instrument."
ISSUE: Whether Valente’s will should be allowed?
RULING: NO, Valente’s will should be disallowed. To allow the
notary public to act as third witness, or one of the attesting and
acknowledging witnesses, would have the effect of having only
two attesting witnesses to the will which would be in
contravention of the provisions of Article 805 requiring at least
three credible witnesses to act as such and of Article 806 which
requires that the testator and the required number of witnesses
must appear before the notary public to acknowledge the will. The
notary public before whom the will was acknowledged cannot be
considered as the third instrumental witness since he cannot
acknowledge before himself his having signed the
will. Furthermore, the function of a notary public is, among others,
to guard against any illegal or immoral arrangements. Balinon v.
De Leon, 50 O. G. 583.) That function would be defeated if the
notary public were one of the attesting or instrumental witnesses.
For them he would be interested in sustaining the validity of the
will as it directly involves himself and the validity of his own act. It
would place him in an inconsistent position and the very purpose
of the acknowledgment, which is to minimize fraud (Report of the
Code Commission p. 106-107), would be thwarted. The result
would be, as has been said, that only two witnesses appeared
Page 18 of 29
before the notary public for that purpose. In the circumstances,
the law would not be duly observed.
The American authorities do not serve the purpose of the law in this
jurisdiction or are not decisive of the issue herein, because the notaries
public and witnesses referred to in the aforecited cases merely acted as
instrumental, subscribing or attesting witnesses, and not as
acknowledging witnesses. Here the notary public acted not only as
attesting witness but also as acknowledging witness, a situation not
envisaged by Article 805 of the Civil Code which reads: "ART. 806.
Every will must be acknowledged before a notary public by the testator
and the witnesses. The notary public shall not be required to retain a
copy of the will or le another with the office of the Clerk of
Court." [Emphasis supplied]
To acknowledge before means to avow (Javellana v. Ledesma, 97 Phil.
258, 262; Castro v Castro, 100 Phil. 239, 247); to own as genuine, to
assent, to admit; and "before" means in front or preceding in space or
ahead of. (The New Webster Encyclopedic Dictionary of the English
Language, p. 72; Funk & Wagnalls New Standard Dictionary of the
English Language, p. 252; Webster's New International Dictionary 2d.
p. 245.) Consequently, if the third witness were the notary public
himself, he would have to avow, assent, or admit his having signed the
will in front of himself. This cannot be done because he cannot split his
personality into two so that one will appear before the other to
acknowledge his participation in the making of the will. To permit such a
situation to obtain would be sanctioning a sheer absurdity.
SUCCESSION FEB 21 PROVISIONS + DIGESTS


11. In re estate of the deceased Leonarda Macam y Capili.
NICOLASA MACAM, petitioner-appellant , vs. JUANA
GATMAITAN,oppositor-appellant. [G.R. No. 40445. August 17, 1934.]   accordance with law. So ordered."
FACTS: On March 27, 1933, petitioner Nicolasa Macam filed in the
Court of First Instance of Bulacan a petition for the probate of the will
dated July 12, 1932, and of the codicil thereof dated February 17, 1933,
executed by Leonarda Macam who died on March 18, 1933, in the
municipality of Calumpit, of said Province of Bulacan, and for Nicola’s
appointment as executrix without bond.
When the petition was called for hearing on April 24, 1933, in the
absence of the judge, the clerk of the Court of First Instance of
Bulacan, upon instructions of said judge to proceed to take the
evidence in the absence of any opposition, took the evidence relative to
the probate of the will, no opposition to the same having been filed.
Inasmuch as Juana Gatmaitan filed opposition to the probate of the
codicil, said clerk deemed himself unauthorized to take the evidence
relative thereto and refrained from so doing.
The will and the evidence for its probate having been submitted to the
court the vacation Judge Hon. M. Rosauro, on April 28, 1933, entered
an order allowing said will and appointing the petitioner Nicolasa
Macam as executrix.
On July 6, 1933, after notice to the parties, the codicil was called for
hearing, opposition having been filed by Juana Gatmaitan, one of the
legatees instituted in the will which had already been allowed by final
and executory judgment.
CFI RULING (dispositive part): "In view of the neglect or
abandonment by the interested parties of their respective claims during
the proceedings for the probate of the will, and it appearing that the
order allowing the will has already become final and executory, the
court is of the opinion that it is now too late to consider the so- called
codicil as well as the instrument from which Juana Gatmaitan derives
her alleged right. Wherefore, the petition for the probate of the codicil
Page 19 of 29
as well as the opposition thereto filed by Juana Gatmaitan is dismissed,
without prejudice to whatever right the latter may have in an appropriate
proceeding before the committee on claims and appraisal, in
PETITIONER’S CONTENTION: Nicolasa Macam contents that the
lower court erred in: holding that the parties have abandoned their
respective claims during the proceedings for the probate of the will;
declaring that it was already too late to raise the question as to the legal
efficacy of the codicil executed by the deceased; and in dismissing the
petition for the probate of the codicil before any of the parties had
presented evidence pertinent to the matter.
RESPONDENT’S CONTENTION: Juana Gatmaitan contends that the
lower court erred in: holding that in order for Juana Gatmaitan to
preserve her rights, so far as to oppose the probate of the codicil, it was
her duty to oppose to the probate of the will; and, having opposed the
probate only of the codicil, she could no longer avail herself of the
document in her favor, so as to affect the testamentary dispositions of
the deceased Leonarda Macam; also in dismissing the opposition of
Juana Gatmaitan to the probate of the alleged codicil.
ISSUES: (1) Whether an already probated will bars the subsequent
presentation for probate of the codicil?
(2) Whether the non-opposition to the probate of the will constitutes
abandonment of right and now bars from opposing the codicil?
RULINGS: NO. The fact that a will has been probated and the order
allowing the same has become final and executory, is not a bar to
the presentation and probate of a codicil, although its existence
was known at the time of the probate of the will, provided it
complies with all the necessary formalities for executing a will
required by section 614 of the Code of Civil Procedure, as
amended by section 1 of Act No. 1934; (2) that the failure of the
oppositor to the probate of a codicil to file opposition to the
probate of the will, having knowledge of such proceedings, does
not constitute an abandonment of a right, nor does it deprive her
SUCCESSION FEB 21 PROVISIONS + DIGESTS
of the right to oppose to probate of said codicil. Moreover, it is not
necessary that the will and the codicil be probated together, as the
codicil may be concealed by an interested party and it may not be
discovered until after the will has already been allowed; and they
may be presented and probated one after the other (40 Cyc., 1228),
since the purpose of the probate proceedings is merely to
determine whether or not the will and the codicil meet all the
statutory requirements for their extrinsic validity, leaving the
validity of their provisions for further consideration. Therefore, the
court a quo, erred in dismissing the opposition filed by
the oppositor-appellant Juana Gatmaitan to the probate of the
codicil of the will of the deceased Leonarda Macam.
Section 625 of the Code of Civil Procedure provides as follows: "SEC.
625. Allowance necessary, and conclusive as to execution. — No will
shall pass either the real or personal estate, unless it is proved and
allowed in the Court of First Instance, or by appeal to the Supreme
Court; and the allowance by the court of a will of real and personal
estate shall be conclusive as to its due execution."
Interpreting the above legal provisions as regards the scope of the
allowance of a will, this court, in numerous decisions, has laid down the
doctrine that the probate of a will is conclusive as to its due execution
and as to the testamentary capacity of the testator, but not as to the
validity of its provisions, and in probate proceedings the courts are
without jurisdiction to determine questions concerning the validity of the
provisions of the will.
Page 20 of 29
revocation is made with the formalities required for making it, in
accordance with the provisions of article 738 of the same Code.
The appeal taken by the petitioner Nicolasa Macam is, therefore, well
founded and the court a quo erred in flatly denying her petition for the
probate of the codicil on the erroneous ground that said codicil should
have been presented at the same time as the will.
With respect to the opposition of the oppositor-appellant Juana
Gatmaitan, the fact that she failed to file opposition to the probate of the
will does not prevent her from filing opposition to the probate of the
codicil thereof, inasmuch as the will may satisfy all the external
requisites necessary for its validity, but the codicil may, at the time of its
execution, not be in conformity therewith. If the testator had
testamentary capacity at the time of the execution of the will, and the
will was executed in accordance with all the statutory requirements,
opposition to its probate would not lie. On the contrary, if at the time of
the execution of the codicil the testator lacked some of the subjective
requisites legally capacitating him to execute the same, or all the
statutory requirements were not complied with in the execution thereof,
opposition to its probate would lie.
 

"A codicil is a written instrument wherein one declares his last will, in
order to take from or add something to the will, or clarify the provisions
thereof." (Spanish Cyclopaedia of Law, vol. 5, page 918.)

"A codicil has been defined as some addition to or qualification of one's

last will and testament." (28 R. C. L., 197.)

The exercise of the right to make a will, as a voluntary act, implies the
right to revoke, and article 737 of the Civil Code expressly provides that
wills are essentially revocable, provided that the partial or total
SUCCESSION FEB 21 PROVISIONS + DIGESTS
12. In the matter of the estate of Jesus de Leon. IGNACIA DIAZ,
petitioner-appellant, vs. ANA DE LEON, opponent-appellee. [G.R. No.
L-17714. May 31, 1922.] ->  LARIOSA, FELICIANA BAUZON, and CATALINA MAMUYAC,
FACTS: The purportedly last will and testament of Jesus de Leon was
allegedly revoked by the latter. Petitioner Ignacia Diaz denies
such revocation, while respondent Ana De Leon affirms the same by
alleging that Jesus revoked his will by destroying it, and that Jesus
executed another will expressly revoking the former.
ISSUE: Whether the will executed by Jesus was revoked by him?
RULING: YES, the will executed by Jesus was revoked by him.
Although the second will executed by Jesus is not clothed with all
the necessary requisites to constitute a sufficient revocation,
according to Sec 623 of the Code of Civil Procedure, the
destruction of a will with animo revocandi constitutes, in itself, a
sufficient revocation. The intention of revoking the will is manifest
from the established fact that the testator was anxious to withdraw
or change the provisions he had made in his first will. Thus, the
original will herein presented for probate having been destroyed
with animo revocandi, cannot now be probated as the will and last
testament of Jesus de Leon. The testator Jesus De Leon shortly
after the execution of the first will in question, asked that the same
be returned to him. The instrument was returned to the testator
who ordered his servant to tear the document. This was done in
his presence and before a nurse who testified to this effect. After
some time, the testator, being asked by Dr. Cornelio Mapa about
the will, said that it had been destroyed. This fact is disclosed by
the testator's own statement to the witnesses Canto and the
Mother Superior of the Hospital where he was confined.  Bejar, who saw on December 30, 1920, the original of Exhibit A (will of


 
Page 21 of 29
13. Estate of Miguel Mamuyac, deceased. FRANCISCO GAGO,
petitioner- appellant, vs. CORNELIO MAMUYAC, AMBROSIO
opponents-appellees. [G.R. No. 26317. January 29, 1927.]  -> 
FACTS: The deceased Miguel Mamuyac wrote three wills: 27 July
1918; 16 April 1919 and 30 December 1920. Mamuyac died on Jan 24
1922 in La Union. Mamuyac’s 1918 will was presented by petitioner
Francisco Gago for probate with the Court of First Instance of the
Province of La Union. The probation of the same was opposed by
respondents Cornelio Mamuyac, Ambrosio Lariosa, Feliciana Bauzon,
and Catalina Mamuyac (civil cause No. 1144, Province of La Union). To
which, the CFI first denied the probate of the will, upon the ground that
Mamuyac had on the 16th day of April, 1919, executed a new will and
testament. 
On the 21st day of February, 1925, the probate of the April 16 1919 will
was submitted. This was again opposed by Cornelio Mamuyac,
Ambrosio Lariosa, Feliciana Bauzon, and Catalina Mamuyac, alleging
(a) that the said will is a copy of the second will and testament executed
by the said Miguel Mamuyac; (b) that the same had been cancelled and
revoked during the lifetime of Miguel Mamuyac and (c) that the said will
was not the last will and testament of the deceased Miguel Mamuyac.
CFI RULING: Denied the probate of the April 16 1919 will, upon the
ground that the same had been cancelled and revoked in the year
1920. "That Exhibit A is a mere carbon copy of its original which
remained in the possession of the deceased testator Miguel Mamuyac,
who revoked it before his death as per testimony of witnesses Jose
Fenoy, who typed the will of the testator on April 16, 1919, and Carlos
1919) actually cancelled by the testator Miguel Mamuyac, who assured
Carlos Bejar that inasmuch as he had sold him a house and the land
where the house was built, he had to cancel it the will of 1919),
executing thereby a new testament. Narcisa Gago in a way
corroborates the testimony of Jose Fenoy, admitting that the will
executed by the deceased (Miguel Mamuyac) in 1919 was found in the
SUCCESSION FEB 21 PROVISIONS + DIGESTS
possession of father Miguel Mamuyac. The opponents have
successfully established the fact that father Miguel Mamuyac had
executed in 1920 another will. The same Narcisa Gago, the sister of the
deceased, who was living in the house with him, when cross-examined
by attorney for the opponents, testified that the original of Exhibit A
could not be found. For the foregoing consideration and for the reason
that the original of Exhibit A has been cancelled by the deceased father
Miguel Mamuyac, the court disallows the probate of Exhibit A for the
applicant."
PETITIONER’S CONTENTION: Francisco contends that the lower
court committed an error in not finding from the evidence that the will in
question had been executed with all the formalities required by the law;
that the same had been revoked and cancelled in 1920 before his
death; that the said will was a mere carbon copy and that the
oppositors were not estopped from alleging that fact.
ISSUE: Whether Mamuyac’s 1919 will was validly cancelled by his
1920 will?
RULING: YES, Mamuyac’s 1919 will was validly cancelled by his
1920 will. In view of the fact that the original will of 1919 could not
be found after the death of the testator Miguel Mamuyac and in
view of the positive proof that the same had been cancelled, we
are forced to the conclusion that the conclusions of the lower
court are in accordance with the weight of the evidence. The law
does not require any evidence of the revocation or cancellation of
a will to be preserved. Where a will which cannot be found is
shown to have been in the possession of the testator, when last
seen, the presumption is, in the absence of other competent
evidence, that the same was cancelled or destroyed. The same
presumption arises where it is shown that the testator had ready
access to the will and it cannot be found after his death.
In a proceeding to probate a will the burden of proof is upon the
proponent clearly to establish not only its execution but its existence.
Having proved its execution by the proponents, the burden is on the
contestant to show that it has been revoked. In a great majority of
Page 22 of 29
instances in which wills are destroyed for the purpose of revoking them
there is no witness to the act of cancellation or destruction and all
evidence of its cancellation perishes with the testator. Copies of wills
should be admitted by the courts with great caution. When it is proven,
however, by proper testimony that a will was executed in duplicate and
each copy was executed with all the formalities and requirements of the
law, the duplicate may be admitted in evidence when it is made to
appear that the original has been lost and was not cancelled or
destroyed by the testator. (Borromeo vs. Casquijo, G.R. No. 26063.)
It may be stated that there is positive proof, not denied, which was
accepted by the lower court, that the will in question had been
cancelled in 1920. The law does not require any evidence of the
revocation or cancellation of a will to. be preserved. It therefore
becomes difficult at times to prove the revocation or cancellation of
wills. The fact that such cancellation or revocation has taken place must
either remain unproved or be inferred from evidence showing that after
due search the original will cannot be found. Where a will which cannot
be found is shown to have been in the possession of the testator, when
last seen, the presumption is, in the absence of other competent
evidence, that the same was cancelled or destroyed. The same
presumption arises where it is shown that the testator had ready access
to the will and it cannot be found after his death. It will not be presumed
that such will has been destroyed by any other person without the
knowledge or authority of the testator. The force of the presumption of
cancellation or revocation by the testator, while varying greatly, being
weak or strong according to the circumstances, is never conclusive, but
may be overcome by proof that the will was not destroyed by the
testator with intent to revoke it. After a careful examination of the entire
record, we are fully persuaded that the will presented for probate had
been cancelled by the testator in 1920.


SUCCESSION FEB 21 PROVISIONS + DIGESTS
14. In the matter of the estate of Rufina Arevalo. ARISTON
BUSTAMANTE, administrator-appellant , vs. PETRONA AREVALO,
ET AL., oppositors- appellees. [G.R. No. 47305. July 31, 1942.] -> 
FACTS: The last will and testament of the deceased Rufina Arevalo
was presented for probate by petitioner Ariston Bustamante with the
Court of First Instance of Manila. The value of the estate is over
P50,000. The questioned document was prepared and signed in
duplicate. It consists of two pages and is dated October 2, 1937. It
appears to be signed by Rufina Arevalo and by three witnesses,
Manuel M. Cruz, Remigio Colina and Angel Sanchez. The formal
requisites of a will have been complied with.
An initial fact that arrests the attention is the formulation by respondents
Petrona Arevalo et al of the allegation of forgery even before seeing the
questioned document. Said charge of forgery was signed on April 22,
1938, although Exhibit C, which had been in a sealed envelope, was
not opened by order of the court till the next day, April 23, 1938. It is
true that the opposition by the appellees was not actually filed in court
till April 23, but it was signed by appellees' attorneys on April 22, was
subscribed and sworn to by Amando Clemente on April 22, and a copy
thereof was sent by registered mail to Attorney Nicasio Yatco on April
22. Moreover, in the morning of April 23, appellees' attorneys, Messrs.
Jose Belmonte and Vicente Delgado, announced their opposition to the
will Exhibit C in open court, before said document was opened by order
of the court on that day.
CFI RULING: Denied the probate of the will and allowed an earlier will,
Exhibit 6, whose authenticity was unquestioned. One of the principal
reasons of the court a quo for believing Exhibit C to be a forgery is that
in the genuine signatures the terminal stroke of the capital "R" in
"Rufina" is not joined with the letter "u," while in Exhibit 6 such ending is
united with the letter "u" in the two marginal signatures, although in the
central signature appearing on page 2, the two letters are separated.
The probate court believes that this difference between the marginal
and the central signatures is due to the fact that the forger first used the
check of "La Previsora" (Exhibit I) as the model in falsifying the
marginal signatures, but having been shown another signature with the
Page 23 of 29
characteristic already mentioned — separation of the two letters — he
tried to imitate said peculiarity in making the central signature.
ISSUES: (1) Whether Rufina’s will (Exhibit C) should be disallowed? 

(2) Whether the earlier will (Exhibit 6) is validly revoked by the
subsequent will (Exhibit C)?
RULINGS: This was remanded back to the lower court for further
proceedings. 
(1) NO, Rufina’s will should be allowed. In the present case, a
careful scrutiny of all the questioned and the standard signatures
has convinced us that they have been written by the same person
because they show the same general type, quality and
characteristics, with natural variations. We are, therefore, inclined
to give credence to the expert testimony to that effect presented
by the appellant. Moreover, a forger who has to make two or more
signatures usually sees to it that all the signatures are uniform for
fear that any difference might arouse suspicion. In this case,
however, in some questioned signatures the letters "R" and "u"
are separated, but in others, they are united. Furthermore, it is to
be noted that the document in question was prepared and signed
in duplicate, so that there are six signatures of Rufina Arevalo,
instead of only three. It is reasonable to believe that a forger
would reduce the number of signatures to be forged so as to
lessen the danger of detection. In this case, Attorney Nicasio
Yatco, who supervised the execution of Exhibit C, must have
known that it was not necessary to make a signed duplicate of the
will. Therefore, we find that the will of Rufina Arevalo, dated
October 2, 1937 and marked Exhibit C, is genuine and should be
allowed.
(2)  YES, the earlier will (Exhibit 6) is validly revoked by the
subsequent will (Exhibit C). Though it might appear right that
Amando Clemente should receive something from the estate
because he, together with Ariston Bustamante, has been raised by
SUCCESSION FEB 21 PROVISIONS + DIGESTS
the testatrix, and both are her relatives, nevertheless it would be
venturesome for us to advance our own idea of a just distribution
of the property in the face of a different mode of disposition so
clearly expressed by the testatrix in the later will. As she had no
forcible heirs, she was absolutely free to give her estate to
whomsoever she chose, subject of course to the payment of her
debts. It would be a dangerous precedent to strain the
interpretation of a will in order to effect what the court believes to
be an equitable division of the estate of a deceased person. The
only function of the courts in these cases is to carry out the
intention of the deceased as manifested in the will. Once that
intention has been determined through a careful reading of the will
or wills, and provided the law on legitimes has not been violated, it
is beyond the pale of judicial cognizance to inquire into the
fairness or unfairness of any devise or bequest. It might be said
that it is hard to understand how, in a temporary anger at Amando
Clemente, the testatrix would entirely cut him off from the
inheritance. We should not, however, sit in judgment upon her
motives and sentiments, first because, as already stated, nothing
in the law restrained her from disposing of her property in any
manner she desired, and secondly, because there are no adequate
means of ascertaining the inward processes of her conscience.
She was the sole judge of her own attitude toward those who
expected her bounty.
We believe the probate court has overlooked the well-established
principle that in passing upon questioned documents, the test is the
general character of the writing rather than any minute and precise
comparison of individual letters or lines. In People vs. Bustos (45 Phil.,
30), this Court held: "It is a first principle in writing that exact
coincidence between two signatures is absolute proof that one or the
other is a forgery. There must be some difference before authenticity
can be admitted; and the general rule is that authenticity reposes upon
a general characteristic resemblance, coupled with specific differences,
such as naturally result from the infinite variety of conditions controlling
the muscles of the writer at each separate effort in forming his
signature." (Emphasis supplied.)
Page 24 of 29
As for the probate court's opinion that the forger must have used
Exhibit I (a check issued by "La Previsora" to Rufina Arevalo) as a
model in falsifying the marginal signatures, it is highly improbable that
said check was in the hands of Rufina Arevalo or of her attorney,
Nicasio Yatco, on or about October 2, 1937, when the document in
question was signed. The check had been issued on June 30, 1936, or
over a year before, and it must have been returned by the bank
concerned to "La Previsora" in the ordinary course of business,
because it was produced by the Manager of "La Previsora." It should
likewise be observed that the signature on the first page of the
duplicate will (Exhibit C-3) does not have the supposed peculiarity of
the standard signatures, that is, the separation between "R" and "u." If,
as the lower court states, the forger upon being shown a model other
than Exhibit I, imitated said characteristic separation in making the
central or body signature on the original will Exhibit C, it is indeed
strange that he should not do the same immediately thereafter on the
first page of the duplicate will but that he should, instead, repeat the
mistake he had made on the marginal signatures on the original will.
Finally, to conclude that a forgery has been committed, the evidence
should be forcefully persuasive. Before we are disposed to find that an
attorney-at-law has so debased himself as to aid and abet the forgery
of a will, which would not only send him to jail for many years but would
ruin his future, we must require proof sufficiently strong to prevail
against every fair and thoughtful hesitancy and doubt. And the
instrumental witnesses have testified that Rufina Arevalo signed the will
in their presence. It is hard to believe they would commit perjury as it
has not been shown they had any interest in this case.
  


SUCCESSION FEB 21 PROVISIONS + DIGESTS
15. CRISTINA SAMSON, DELFINA NAVAL, and SOR
CONSOLACION EUGENIO, petitioners-appellants, vs. MONICA
NAVAL, ROSA NAVAL, and CELESTINA NAVAL, objectors-
appellants. [G.R. No. 11823. February 11, 1918.]  ->  formalities prescribed by law. Article 739 of the Civil Code provides that
FACTS: Simeona Naval who died on September 18, 1915 wrote two
wills: February 13 1915 and October 31 1914. On September 20, 1915,
attorney Perfecto Gabriel presented for probate with the CFI of Manila
the Feb 1915 will of Simeona Naval. The case was recorded as No.
13386. Later on, it was denied on the ground that said document was
not duly executed by Simeona as her last will and testament, inasmuch
as she did not sign it in the presence of three witnesses and the two
witnesses did not sign it in the presence of each other. Thereafter
petitioners Cristina Samson, Delfina Naval and For Consolation
Eugenio, the nieces and legatees of Simeone filed in the same court for
allowance her 1914 will, the case was registered under another
number, which was No. 13579. The petition for allowance was opposed
by Monica Naval, Rosa Naval, and Cristina Naval on the ground that
the will, the allowance of which is asked, could not be allowed, because
of the existence of another will of subsequent date, executed during her
lifetime by the same Simeona F. Naval, and because said will has been
revoked by another executed subsequently by her during her lifetime,
and, further, because said will has not been executed with the
formalities required by existing laws.
CFI RULING: Admitting said second document (Oct 1914 will) and
ordering its allowance as the last will and testament of said deceased.
ISSUE: Whether the 1914 will should be allowed?
RULING: YES, the 1914 will should be allowed, since the failure of
the 1915 will to conform with the requisites and formalities
prescribed by Section 618 of the Code of Civil Procedure does not
make it a valid will, it failed also to validly revoked the 1914
will. Therefore, the disallowance of the 1915 will and the
declaration that it was not executed according to the provisions of
law as to wills, produced the effect of annulling said revocatory
clause contained in the 1915 will also.
Page 25 of 29
The will executed by Simeona on February 13, 1915, and which was
the subject- matter of case No. 13386 of said court could not be
allowed, on the ground that it was not executed with the requisites and
a former will is by operation of law revoked by another valid subsequent
will, if the testator does not state in the later will his desire that the
former should subsist wholly or partly. In harmony with this provision of
substantive law, we nd section 623 of the Code of Civil Procedure,
which provides that no will shall be revoked, except by implication of
law, otherwise than by some will, codicil, or other writing executed as
provided in case of wills. So that it is very evident that the second will
presented, that is, that of October 31, 1914, was not and could not have
been revoked by the February 13 1915 will. 
As to the annulment of the revocation clause: But admitting that the will
said to have been executed by the deceased Simeona F. Naval on
February 13, 1915, notwithstanding its inefficacy to transmit property for
the reason that it has not been executed, according to the provisions of
said section 618 of the Code of Civil Procedure, should be considered
as executed by her in order to express her desire, appearing in one of
its clauses, to revoke and annul any previous will of hers, as stated in
clause 13, this being the argument adduced by the appellant, Monica
Naval, in support of said assignment of error — neither could it be
maintained that, the allowance of said will having been denied by the
court on November 11, 1915, said revocatory clause subsists and the
intention expressed by the testatrix therein is valid and legally effective,
for the simple reason that, in order that a will may be revoked by a
document it is necessary, according to the conclusive provisions of
section 623 of said procedural law, that such document be executed
according to the provisions relating to will in section 618, and the will in
question, or, according to the respondent, the so-called document, was
not executed according to the provisions of said section, according to
the express finding of the trial court in its order of November 11, 1915,
acquiesced in by the opponent herself, and which is now final and
executory. Therefore, the disallowance of said will and the declaration
that it was not executed according to the provisions of law as to wills,
produced the effect of annulling said revocatory clause.
SUCCESSION FEB 21 PROVISIONS + DIGESTS


16. Testate Estate of the Deceased MARIANO MOLO Y LEGASPI.
JUANA JUAN VDA. DE MOLO, petitioner-appellee, vs. LUZ,
GLICERIA and CORNELIO MOLO, oppositor-appellants. [G.R. No.
L-2538. September 21, 1951.] ->  RULING: YES, the 1918 will should be allowed under the principle
FACTS: The testator Mariano Molo died on January 24 1941. Before
his death, Molo executed two wills: August 17 1918 and June 20 1939
(with a revocation clause, expressly revoking his 1918 will)
Molo was survived, however, by his wife petitioner Juana Juan Vda. de
Molo, and by his nieces and nephew, the oppositors-appellants, Luz,
Gliceria and Cornelio, all surnamed Molo, who were the legitimate
children of Candido Molo y Legaspi, deceased brother of the testator.  this intention is clearly manifest when he executed two wills on
On February 7, 1941 Juana Molo filed a petition for probate of her
husband’s 1939 will with the Court of First Instance of Rizal. However, it
was later on denied for probate on the ground that Juana failed to prove
that it was executed in accordance with law.
In view of the disallowance of the 1939 will, Juana filed on February 24,
1944, a petition for probate of the 1918 will with the same court. Again,
the same oppositors filed an opposition to the petition based on three
grounds: (1) that petitioner is now estopped from seeking the probate of
the will of 1918; (2) that said will has not been executed in the manner
required by law and (3) that the will has been subsequently revoked.
But before the second petition could be heard, the battle for liberation
came and the records of the case were destroyed.
RESPONDENT’S CONTENTION: Regardless of said revocatory
clause, said will of 1918 cannot still be given effect because of the
presumption that it was deliberately revoked by the testator himself.
The oppositors contend that the testator, after executing the 1939 will,
and with full knowledge of the revocatory clause contained in said will,
himself deliberately destroyed the original of the 1918 will, and that for
this reason the will submitted by petitioner for probate in these
proceedings is only a duplicate of said original.
Page 26 of 29
CFI RULING: Admitting Molo’s 1918 will.
ISSUE: Whether the 1918 will should be allowed?
of dependent relative revocation. Therefore, that even in the
supposition that the destruction of the original will by the testator
could be presumed from the failure of the petitioner to produce it
in court, such destruction cannot have the effect of defeating the
prior will of 1918 because of the fact that it is founded on the
mistaken belief that the will of 1939 has been validly executed and
would be given due effect. The theory on which this principle is
predicated is that the testator did not intend to die intestate. And
two different occasions and instituted his wife as his universal
heir. There can therefore be no mistake as to his intention of dying
testate. Indeed, Juanna cannot be considered guilty of estoppel
which would prevent her from seeking the probate of the 1918 will
simply because her effort to obtain the allowance of the 1939 will
has failed considering that in both the 1918 and 1939 wills she was
instituted by her husband as his universal heir. Nor can she be
charged with bad faith far having done so because of her desire to
prevent the intestacy of her husband. She cannot be blamed for
being zealous in protecting her interest. 
There is no evidence which may directly indicate that the testator
deliberately destroyed the original of the 1918 will because of his
knowledge of the revocatory clause contained in the will he executed in
1939. The only evidence we have is that when the first will was
executed in 1918, Juan Salcedo, who prepared it, gave the original and
copies to the testator himself and apparently they remained in his
possession until he executed his second will in 1939. And when the
1939 will was denied probate on November 29, 1943, and petitioner
was asked by her attorney to look for another will, she found the
duplicate copy (Exhibit A) among the papers or files of the testator. She
did not find the original.
SUCCESSION FEB 21 PROVISIONS + DIGESTS
Granting for the sake of argument that the earlier will was voluntarily
destroyed by the testator after the execution of the second will, which
revoked the first, could there be any doubt, under this theory, that said
earlier will was destroyed by the testator in the honest belief that it was
no longer necessary because he had expressly revoked it in his will of
1939? In other words, can we not say that the destruction of the earlier
will was but the necessary consequence of the testator's belief that the
revocatory clause contained in the subsequent will was valid and the
latter would be given effect? If such is the case, then it is our opinion
that the earlier will can still be admitted to probate under the principle of
"dependent relative revocation".
"This doctrine is known as that of dependent relative revocation, and is
usually applied where the testator cancels or destroys a will or executes
an instrument intended to revoke a will with a present intention to make
a new testamentary disposition as a substitute for the old, and the new
disposition is not made or, if made, fails of effect for some reason. The
doctrine is not limited to the existence of some other document,
however, and has been applied where a will was destroyed as a
consequence of a mistake of law . . .." (68 C. J. p. 799).
"The rule is established that where the act of destruction is connected
with the making of another will so as fairly to raise the inference that the
testator meant the revocation of the old to depend upon the e cacy of
the new disposition intended to be substituted, the revocation will be
conditional and dependent upon the e cacy of the new disposition; and
if, for any reason, the new will intended to be made as a substitute is
inoperative, the revocation fails and the original will remains in full
force." (Gardner, pp. 232, 233.)
"This is the doctrine of dependent relative revocation. The failure of the
new testamentary disposition, upon whose validity the revocation
depends, is equivalent to the non-ful llment of a suspensive condition,
and hence prevents the revocation of the original will. But a mere intent
to make at some time a will in place of that destroyed will not render the
destruction conditional. It must appear that the revocation is dependent
upon the valid execution of a new will." (1 Alexander, p. 751; Gardner,
p. 233.)
Page 27 of 29
The will in question was attested, as required by law, by three
witnesses, Lorenzo Morales, Ru no Enriquez, and Angel Cuenca. The
first two witnesses died before the commencement of the present
proceedings. So the only instrumental witness available was Angel
Cuenca and under our law and precedents, his testimony is su cient to
prove the due execution of the will. However, petitioner presented not
only the testimony of Cuenca but placed on the witness stand Juan
Salcedo, the notary public who prepared and notarized the will upon the
express desire and instruction of the testator. The testimony of these
witnesses shows that the will had been executed in the manner
required by law. We have read their testimony and we were impressed
by their readiness and sincerity. We are convinced that they told the
truth.


17. TESTATE ESTATE OF THE LATE ADRIANA MALOTO, ALDINA
MALOTO CASIANO, CONSTANCIO MALOTO, PURIFICACION
MIRAFLOR, ROMAN CATHOLIC CHURCH OF MOLO, AND ASILO
DE MOLO, petitioners, vs. COURT OF APPEALS, PANFILO MALOTO
AND FELINO MALOTO, respondents. [G.R. No. 76464. February 29,
1988.] -> 
FACTS: On October 20, 1963, Adriana Maloto died leaving as heirs her
niece and nephews, petitioners Aldina Maloto-Casiano and Constancio
Maloto, and private respondents Panfilo Maloto and Felino Maloto.
Believing that Adriana did not leave behind a last will and testament,
these four heirs commenced on November 4, 1963 an intestate
proceeding for the settlement of their aunt's estate. The case was
instituted in the then Court of First Instance of Iloilo and was docketed
as Special Proceeding No. 1736. However, while the case was still in
progress, or to be exact on February 1, 1964, the parties — Aldina,
Constancio, Panfilo, and Felino — executed an agreement of
extrajudicial settlement of Adriana's estate. The agreement provided for
the division of the estate into four equal parts among the parties. The
Malotos then presented the extrajudicial settlement agreement to the
trial court for approval which the court did on March 21, 1964. 
SUCCESSION FEB 21 PROVISIONS + DIGESTS
Three years later, or sometime in March 1967, Atty. Sulpicio Palma, a
former associate of Adriana's counsel, the late Atty. Eliseo Hervas,
discovered a document entitled "KATAPUSAN NGA PAGBULUT-AN
(Testamento)," dated January 3, 1940, and purporting to be the last will
and testament of Adriana. Atty. Palma claimed to have found the
testament, the original copy, while he was going through some
materials inside the cabinet drawer formerly used by Atty. Hervas. The
document was submitted to the office of the clerk of the Court of First
Instance of Iloilo on April 1, 1967.
Later on, witnesses Guadalupe and Eladio, were presented and they
testified that they were the only ones present at the place where the
stove (presumably in the kitchen) was located in which the document or
papers was allegedly burned by the househelp Guadalupe Maloto Vda.
de Coral, upon instructions of Adriana.
RESPONDENT’S CONTENTION: The respondent court stated that the
presence of animus revocandi in the destruction of the will had,
nevertheless, been sufficiently proven. The appellate court based its
finding on the facts that the document was not in the two safes in
Adriana's residence, by the testatrix going to the residence of Atty.
Hervas to retrieve a copy of the will left in the latter's possession, and,
her seeking the services of Atty. Palma in order to have a new will
drawn up.
ISSUE: Whether there is a valid revocation of Adriana’s will?
RULING: NO, there is no valid revocation of Adriana’s will. In this
case, while animus revocandi, or the intention to revoke, may be
conceded, for that is a state of mind, yet that requisite alone would
not suffice. "Animus revocandi is only one of the necessary
elements for the effective revocation of a last will and testament.
The intention to revoke must be accompanied by the overt
physical act of burning, tearing, obliterating, or cancelling the will
carried out by the testator or by another person in his presence
and under his express direction. There is paucity of evidence to
show compliance with these requirements. For one, the document
or papers burned by Adriana's maid, Guadalupe, was not
Page 28 of 29
satisfactorily established to be a will at all, much less the will of
Adriana Maloto. For another, the burning was not proven to have
been done under the express direction of Adriana. And then, the
burning was not in her presence. Also, nowhere in the records
before us does it appear that the two witnesses, Guadalupe Vda.
de Corral and Eladio Itchon, both illiterates, were unequivocably
positive that the document burned was indeed Adriana's will.
Guadalupe, we think, believed that the papers she destroyed was
the will only because, according to her, Adriana told her so.
Eladio, on the other hand, obtained his information that the
burned document was the will because Guadalupe told him so,
thus, his testimony on this point is double hearsay.
The provisions of the new Civil Code pertinent to the issue can be
found in Article 830.
Art. 830. No will shall be revoked except in the following cases:
1. (1)  By implication of law; or

2. (2)  By some will, codicil, or other writing executed as provided
in case of wills:
or
(3) By burning, tearing, cancelling, or obliterating the will with the
intention of revoking it, by the testator himself, or by some other person
in his presence, and by his express direction. If burned, torn, cancelled,
or obliterated by some other person, without the express direction of
the testator, the will may still be established, and the estate distributed
in accordance therewith, if its contents, and due execution, and the fact
of its unauthorized destruction, cancellation, or obliteration are
established according to the Rules of Court. (Emphasis Supplied.)
It is clear that the physical act of destruction of a will, like burning in this
case, does not per se constitute an effective revocation, unless the
destruction is coupled with animus revocandi on the part of the testator.
SUCCESSION FEB 21 PROVISIONS + DIGESTS Page 29 of 29
It is not imperative that the physical destruction be done by the testator
himself. It may be performed by another person but under the express
direction and in the presence of the testator. Of course, it goes without
saying that the document destroyed must be the will itself.  

For one, there is yet, strictly speaking, no final judgment rendered

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

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