EN BANC 4.

The trial court in not holding that the action of the plaintiffs in this case has prescribed;

G.R. No. 24955 September 4, 1926 5. The trial court erred in interpreting and holding that paragraph 3 of Leandro Serrano's will, Exhibit C, ordered the
delivery of the legacies left by Maria Solla in her will Exhibit B, to the plaintiffs, and that said paragraph affects each
and everyone of the parcels of land in the property deeds of Leandro Serano, Exhibits 1, 2, 3, 4, 5, 6, and 7, and in
JULIAN SOLLA, ET AL., plaintiffs-appellants,
holding that the said paragraph 3 of Leandro Serrano's will cancels all of the rights acquired by him, and is the
vs.
immediate cause of the action brought by the plaintiffs;
URSULA ASCUETA, ET AL., defendants-appellants.

6. The trial court erred in not holding that the third clause of Leandro Serrano's will, Exhibit C, refers only to the pious
Marcelino Lontok for plaintiffs-appellants.
bequests specified in Maria Solla's will, Exhibit B;
Antonio Belmonte, Miguel Florentino, Jose A. Espiritu and Camus, Delgado and Recto for defendants-appellants.

7. The trial court erred in ordering the separation and delivery of the unidentified and undetermined estate of Leandro
VILLA-REAL, J.:
Serrano, together with half of the fruits or their value from September 5, 1921, and in ordering the partition of the
unidentified and undetermined property between the parties without designating the shares;
These are two appeals by the plaintiffs and defendants, respectively, from the judgment of the Court of First Instance
of Ilocos Sur, the dispositive part of which is as follows:
8. The lower court erred in ordering the defendants to separate and deliver the property in question to the plaintiffs, as
well as one-half of the fruits of the same from September 5, 1921;
The court finds that the plaintiffs Rosenda Lagmay and Silvestra Sajor are the surviving legatees of the
testratrix Maria Solla; that the plaintiff Julian Solla and Lucia Solla are heirs of Sergio Solla; Ambrosio
9. The lower court erred in not holding the same of the property of Maria Solla was inherited by Leandro Serrano by
Lagmay is the heir of the deceased Cayetana Solla; Francisco Serna, 2. and Juana Baclig of the
universal title and some by renunciation and sale by the legatees, which title was further protected and cleared by
deceased Josefa Solla; Pedro Serna and Agapita Serna of the deceased Jacinto Serna, and that Pedro
acquisitive prescription, and in not holding that said property of Maria Solla was merged with the estate which passed
Garcia is nephew and heir of the deceased Matias Seveda.
into the hands of the universal heir Leandro Serrano;

That the defendant Ursula is the widow of the deceased Leandro Serano; that the other defendants
10. The lower court erred in holding that the property in question does not belong to the estate of Leandro Serrano;
Simeon, Cesario, Santiago, Primitiva and Maxima, surnamed Serrano, are the children and heirs of the
said Leandro Serrano, who died on August 5, 1921; that Simeon Serrano is the executor of Leandro
Serrano and possesses the property claimed by the plaintiffs. 11. The lower court erred in issuing the order of December 13, 1924 reinstating Rosenda Lagmay as one of the
plaintiffs, and in holding that Lucia Solla is one of the plaintiffs when her name as such plaintiff had been stricken out;
That Leandro Serrano during his lifetime also possessed and enjoyed the said property up to the day of
his death; that this property, the possession or delivery of which is sought by the plaintiffs, should be 12. The lower court erred in not considering the last amendment presented by the plaintiffs to their amended
separated from the estate of Leandro Serrano, with the exception of the parcel of land bought from complaint;
Matias Seveda, Exhibit 5; and the defendants, especially Simeon Serrano, are ordered to separate and
deliver the same to each and everyone of the plaintiffs together with one-half of the fruits, or the value
13. The lower court erred in not considering the amended answer of the defendants of October 14, 1924;
thereof, from September 5, 1921; that the parcels of land referred to are indicated in Maria Solla's will
Exhibit B and more particularly described in plaintiffs' Exhibit A. It is ordered that a partition, in
accordance with the law, be made of the land in which the plaintiffs have a participation. It is also ordered 14. The lower court erred in denying the motion for dismissal of September 3, 1924; and
that the defendants, especially, the executor Simeon Serrano, deliver to the plaintiffs their respective
share in cash or in other property, as a legacy, with one-half of the costs against each of the two parties.
It is ordered. 15. The lower court erred in denying the motion for a new trial filed by the defendants.

In support of their appeal, the defendants-appellants assigned the following supposed errors as committed by the trial On the other hand, the plaintiff-appellants, in support of their appeal, assign the following supposed errors as
court in its judgment, to wit: committed by the trial court in its judgment, to wit:

1. The trial court erred in holding that the lack of appropriate description of each parcel of land claimed is no bar to
this action, and that said defect was ignored in the stipulation of facts;
2. The trial court erred in holding that at the trial of the case the attorneys for both parties also agreed before the court
that the latter might decide the case on Exhibit A is evidence of the plaintiffs, and in holding that said Exhibit A is a
correct statement of the property left by the deceased Maria Solla and that the attorney for the defendants admitted it
as such;
(1) The trial court committed an error in holding that the silence of the plaintiffs leads to the belief that they consented
to the exclusive enjoyment of the said property by Leandro Serrano; and (2) in not ordering the defendants, as heirs
of Leandro Serrano, to render an account to the plaintiffs of the products of the lands of the deceased Maria Solla
from the time the said Leandro Serrano took possession thereof as executor of the deceased Maria Solla.
The case having been called for trial on October 15, 1924, the parties submitted the following statement of facts and
petitioned the court to render judgment thereon:

3. The trial court erred in not considering in its judgment Exhibits 1, 2, 3, 4, 5, 6 and 7 of the defendants as evidence, AGREEMENT
and considering the document Exhibit 4 of said defendants as deficient, weak and worthless evidence;
 Both parties admit the following facts to be true: COURT. Attorneys Antonio Belmonte and Antonio Directo again appear and ask the court to receive their
respective documentary evidence in this case. Attorney Directo presents Exhibit A, which is certified copy
of the clerk of the court and is made a part of the complaint. exhibit B is a certified copy of Mria Solla's will
1. Dña. Maria Solla died in June, 1883, in the municipality of Cabugao, Ilocos Sur, leaving a will executed
and plaintiffs' Exhibit C is a certified copy of Leandro Serrano's will.
and recorded in accordance with the laws then in force, but which had not been probated in accordance
with the Code of Civil Procedure.
BELMONTE. I agree with the stipulation of facts that these documents are integral parts thereof and the
court should consider them as such.
2. There were named in said will, as legatees, Sergio Soll, Cayetano Solla, Josefa Solla, Jacinto Serna,
Rosenda Lagmay, Silvestra Sajor and Matias Seveda, and Leandro Serrano, as universal heir, with their
shares given them by the will above-mentioned. COURT. Have you any objection?

3. Said legatees or their descendants or heirs did not judicially claim their legacies during the life-time of BELMONTE. There is an agreement between both parties that there will be no objection, that is to say,
Leandro Serrano, of which he had taken possession, neither was any testamentary proceeding instituted that all the evidence may be admitted as part of the stipulation.
for the settlement of the estate left by Maria Solla and that Leandro Serrano did not deliver the legacies in
question, which he possessed in his name until his death, having declared the property for taxation as his
COURT. The exhibits mentioned in the stipulation are admitted as part of the same.
own and collected the income therefrom for himself.

BELMONTE. The defense also presents Exhibit 1, as evidence and as an integral part of the statement of
4. That the plaintiffs Julian Solla, Lucia Solla, Ambrosio Lagmay, Rosenda Lagmay, Francisco Serna, 2.
facts, which is a duly registered possessory information; Exhibit 2 is also a duly registered possessory
Juana Baclig, Pedro Serna, Agapita Serna and Pedro Garcia are the descendants or heirs of some of the
information; Exhibit 4 is a public document wherein the legatees renounced the legacies in question;
original legatees, two of whom are the plaintiffs Silvestra Sajor and Rosenda Lagmay; and the
Exhibit 5 is a deed of sale; Exhibit 6 is a Spanish translation of Exhibit 5; Exhibit 7 is a composition title
defendants are heirs of Leandro Serrano.
issued by the State, all of which refer to the land in question.

5. That the said legacies produce 35 uyones of play net annually, and maguey, which the plaintiffs claim
COURT. Each and every one of the exhibits presented by the Attorney Belmonte also forms a part of the
amount to P1,000 as against P300 claimed by the defendants.
stipulation of facts between both attorneys and are admitted.

6. That the property of the legacy situated in Cabugao passed into possession of Simeon Serrano by
BELMONTE. And with this presentation of evidence we submit the case for the decision of the court.
virtue of Leandro Serrano's will as executor thereof, and that said legacies have been and are mixed with
other property of the estate of Leandro Serrano.
Exhibit A mentioned by the parties in their second appearance, consists of a list of the property which it is said was
left by the deceased Maria Solla.
The plaintiffs present as evidence their Exhibits B and C and the defendants also present as evidence
their Exhibits 1, 2, 3, 4 and 5.
Exhibit B is the nuncupative of the said deceased Maria Solla executed on April 19, 1883.
Therefore, both parties pray Honorable Court to render upon the stipulation of facts, the facts proven by
the documentary evidence, and in accordance with law, with the costs against defeated party. Exhibit C is the will of Leonardo Serrano, universal heir of Maria Solla, executed August 22, 1921.

Vigan, October 14, 1924. Exhibit 1 is a possessory information proceeding covering 15 parcels of land situated in the municipality of Cabugao,
Province of Ilocos Sur, instituted by Leandro Serrano on April 1, 1895, and registered in the registry of deeds on April
25, 1895. Leandro Serrano, in his application, claims to be the absolute owner in fee simple of said 15 parcels. Said
(Sgd.) ANTONIO DIRECTO petition is supported by the testimony of Julio Solla, Apolonio Solla, Mauro Solla and Juan Solla, children of Sergio
Attorney for the plaintiffs Solla, one of the legatees named by the deceased Maria Solla.

Exhibit 2 is another possessory information proceeding covering 36 parcels of land situated in the municipality of
(Sgd.) MIGUEL FLORENTINO Cabugao, Ilocos Sur, instituted by Leandro Serrano on March 20, 1895 and registered in the registry of deeds on May
20, 1895. Leandro Serrano, in his petition, also claims to be absolute owner in fee simple of the said 36 parcels ands
ANT. BELMONTE is supported by the testimony of Juan Solla, son of the legatee Sergio Solla.
Attorneys for the defendants
Exhibit 3 is another possessory information proceeding covering 65 parcels situated within the municipality of
Later in the morning of the same day the parties again appeared before the court, and the following proceedings were Cabugao, Ilocos Sur, instituted by Leandro Serrano on March 26, 1895 and registered in the registry of deeds on April
had: 24, 1895. Leandro Serrano, in his petition, claims to be the absolute owner in fee of said land.

A little after ten. Exhibit 4 is the record of certain proceedings of the president of the municipality of Cabugao at the instance of
Leandro Serrano in which formal renunciation of their respective legacies is made by the legatees named in Maria
Solla's will.
Exhibit 5 is a deed of sale made by Matias Sevedea in favor of Leandro Serrano of one parcel of land instituted in
Cabugao which he had received from Maria Solla as a legacy.
Exhibit 7 is a royal title issued by the Spanish Government in favor of Leandro Serrano to six parcels of land situated
in the barrio of Alongoong of the municipality of Cabugao of the Province of Ilocos Sur.
It also appears from the record that Leandro Serrano took possession of the property left by Maria Solla immediately
after her death which occurred on June 11, 1883, and continued in possession of the same until his death, which took
place on August 5, 1921, having instituted possessory information proceedings, declared the property for taxation,
paid the land tax on the same and enjoyed its products exclusively.
On account of the intimate relation between them, we shall consider the first two assignments of error together.
The defendants-appellants that the trial court erred in considering plaintiffs' Exhibit A as a part of the stipulation of
facts, disregarding the complete absence of a description of the land which they to recover.
From folio 2 of the transcript of the stenographic notes it appears that on the morning of October 16, 1924 the
attorney for the defendants, Mr. Antonio Belmonte, agreed to the admission of all of the documentary evidence
presented at that time as a part of the agreement, among which is found the document Exhibit A, which contains a list
of the supposed legacies left by the deceased Maria Solla, to the predecessors in interest of the plaintiffs, with their
respective descriptions, which were the subject-matter of the complaint herein, leaving to the sound discretion of the
court to weigh the same. It is true that the court found that six of the parcels described therein were the exclusive
property of Leandro Serrano and are covered by the royal title, Exhibit 7 of the defendants, but this does not in any
manner mean that the other parcels were not those left by the testratix Maria Solla to her brothers and nephews.
Therefore, the first and second assignments of error are groundless.
In regard to the third assignment of error of the defendants-appellants that Exhibits 1, 2, 3, 4, 5, 6 and 7 having been
presented as evidence by the defendants and admitted by the plaintiffs as an integral part of the stipulation of facts, it
was an error not to give full weight to said documents.
The fourth assignment of error of the defendants-appellants raises the question of prescription of the plaintiffs' action.
It appears from the stipulation of facts that, aside from the renunciation mad by the legatees of their respective
legacies, according to Exhibit 4, Leandro Serrano was in possession of the property left by Maria Solla from June 11,
1883 until August 5, 1921, having obtained a possessory information in his favor, which was duly registered in the
registry of deeds, exclusively enjoyed the products thereof, declared it as his property for the purpose of taxation and
paid the corresponding land tax thereon, without any of the legatees or their successors in interest having formally nor
judicially claimed any title thereto or asked for any share of the products, or contributed to the payment of the land tax.
Furthermore, in the possessory information proceedings wherein Leandro Serrano claimed to be the absolute owner
in fee simple of the lands involved therein, the children of Sergio Solla, one of the legates of the deceased Maria
Solla, testified in support of the petitions.
So that under the provisions of articles 1940 and 1957 of the Civil Code, as well as the provisions of sections 38, 40
and 41 of the Code of Civil Procedure, the plaintiffs have lost by, extinctive prescription, not only all right of action to
recover the ownership of the property left to their predecessors in interest, but also whatever right of ownership they
have had to the same because of Leandro Serrano's exclusive, open, peaceful and continuous possession which was
adverse to all the world including the legatees and their successors, for the period of thirty-nine years under claim of
ownership, evidenced not only by his applications for possessory information, but also by his exclusive enjoyment of
the products of said property, — even if it is considered that the legatees have not renounced their part in the legacy
— has given him, by operation of law, exclusive and absolute title to the said properties. (Bargayo vs. Camumot, 40
Phil., 857, 869.)
The fifth and sixth assignments of error raise the question of the true interpretation of the provisions of the last will of
the testratix Maria Solla in regard to the obligation imposed upon the universal heir named by her, Leandro Serrano,
and of the provisions of the last will of the latter in regard to the obligation imposed by him upon his heir, and executor
Simeon Serrano, one of the herein defendants-appellants.
The following are the pertinent parts of Maria Solla's will:
I also and order that there be given, in the way of legacies, to my brother Sergio Solla and sisters
Cayetana Solla and Josefa Solla, to my nephew Jacinto Serna and to Rosenda Lagmay and Silvestra
Sajor whom I have raised, and to my servant Matias Seveda, distributed in the following manner . . . I
also declare that I have no forced heirs, my parents and my two sons having died, and I am at liberty to
name any their I care to and whom I consider proper. Therefore not having anyone who inspires me with
confidence and is willing to comply strictly with my orders and requests in this will, I desire and hereby
name Leandro Serrano, my grandson, as my universal heir who is a legitimate son of my son Modesto
Solosa, and is single; and besides I have raised him from infancy, and have not yet given him anything
notwithstanding that he has always been with me, always helping me; and I desire him to comply with the
obligation to give or deliver to the parish priest of this town a sufficient sum of money necessary for a
yearly novena for an ordinary require mass for the first eight days thereof and on the ninth, or last day, a
solemn requiem mass, with vigil and a large bier, for these masses and for the repose of my soul and
those of my parents, husband, children and other relatives. I repeat and insist that my heir shall execute
and comply with this request without fail. And at the hour of his death he will insist that his heirs comply
with all that I have here ordered.
The pertinent parts of the will of Leandro Serrano (Exhibit C) are as follows:
Third. I command my executor to put all of my property in order, separating first the property of his
deceased grandmother Capitana Maria Solla, because she directed in her will that her property be
distributed strictly in conformity with her wishes and as she earnestly requested the compliance of her
bequests I obligate my heirs to comply with the same; for that reason it is my wish and I really should like
to deliver it to my granddaughter, Corazon Serrano, my adopted daughter, but as she is already dead, I
deliver it to her father Simeon Serrano because among my children he is the only one who is very
obedient to me and I hope he will comply with all my orders and those of his grandmother Maria Solla. In
fact he is the only one of my children who was able to help me in all my troubles and he is the most
obedient one of them; because, although I became angry with him and threatened him many times, he
paid no attention to my reprimands. Such is not the case with my other children, who, when I became a
little angry, each time drifted farther away and have never offered me any help, which had accused me
much pain, but, nevertheless, they continue to be my children and I do not exclude them.
xxx xxx xxx
Fifth. On occupation of the fact that all of the property of the deceased Capitana Solla was given to my
son Simeon I order him not to forget annually all the souls of the relatives of my grandmother and also of
nine and to have a mass said on the first and ninth days of the yearly novena and that he erect a first
class bier.
xxx xxx xxx
I insistently order that the property of my deceased grandmother Capitana Maria be disposed of in
conformity with all the provisions of her will and of mine.
As may be seen Maria Solla named grandson Leandro Serrano in her will as her universal heir to her property and
ordered him to strictly comply with her orders and requests and that at the hour of his death to make the same
insistence upon his heirs to comply with all that she has ordered.
As may also be seen Leandro Serrano named his son Simeon Serrano, as executor of his will and that he directed The trial court, therefore, committed an error in interpreting the order to Leandro Serrano mentioned in his will as
him to put all of his property in order and to separate that which came from his deceased grandmother Maria Solla, applicable to the provisions of Maria Solla's will relative to the legacies and not to pious bequests exclusively.
which he gives to his said son Simeon Serrano and orders that same be disposed of exclusively in conformity with the
wishes of his said grandmother, not forgetting the souls of all of his grandmother's relatives and of his own for whose
As to the remaining assignments of error, they being merely corollaries of the fifth and sixth, the points raised therein
repose nine masses were to be said annually during nine days, with a solemn mass on the first and last days.
are impliedly decided in our disposition of said two assignments last mentioned.

Now, then, what are the orders and requests that Maria Solla wanted the universal heir named by her in her will,
With respect to the appeal of the plaintiffs-appellants, the two assignments of error made therein are without merit in
Leandro Serrano, to faithfully comply with and to make his heirs comply with, and what are the orders of Maria Solla
view of the foregoing considerations and the conclusions we have arrived at with regard to the assignments of error
which Leandro Serrano ordered his executor and heir Simeon Serrano to comply with?
made by the defendants-appellants.

In the first place, there is the distribution of the legacies given in her will to her brothers, nephew, protegees and
In view of the foregoing, we are of the opinion that the judgment appealed from must be, as hereby, reversed in all its
servant. In the second place, the delivery of a sufficient sum of money to the parish of Cabugao for the annual
parts and the complaint dismissed, without special findings as to costs. So ordered.
novena, consisting of eight ordinary masses and one solemn requiem mass, together with vigil and bier on the last
day for the repose of the soul of the testratix and her parents, children, husband and other relatives; and in the third
place, the order that Leandro Serrano demand, with the same insistence, that this heirs comply with all that she had Avanceña, C. J., Street, Ostrand, Johns and Romualdez, JJ., concur.
ordered. Leandro Serrano have complied with all of these commands and orders during his lifetime, some wholly and
others partially. The orders and requests that he could and should have fully complied with during his lifetime were to
distribute the legacies and to order his heirs to comply with all her wishes specified in her will. The order or request
that he was able to comply with only partially was to deliver to the parish priest a sufficient sum of money necessary
for the annual masses for the repose of the soul of Maria Solla and her parents, husband, children and other relatives.

It is not logical to suppose that Maria Solla in ordering Leandro Serrano to insist in his will that his heirs after his death
comply with all the requests contained in her said will, referred to the orders and requests that he could and should
comply with during his lifetime, because neither is it logical nor reasonable to suppose that she for a moment doubted
that the person whom she had named as her universal heir — for, according to her, he was the only person in whom
she had any confidence — would comply with her requests. If that is so, Maria Solla could not have referred to other
than the pious orders and requests, because, by reason of their nature, they were the only ones which Leandro
Serrano could not wholly comply with during his lifetime, but that his heirs would continue to do so. And Leandro
Serrano, in complying with the requests of Maria Solla in his will by ordering his son Simeon Serrano, to whom he
bequeathed all of the property received from the former, to comply with all of the requests of the same, could not have
meant but those requests which Maria Solla wished complied with by the heirs of Leandro Serrano which are those
relating to the pious bequests. She confirms this on the fifth clause of her will quoted above, in which she says: "On
account of the fact that all the property of the deceased Capitana Solla is bequeathed to my son Simeon I order him
not to forget the souls of my grandmother's relatives." From this is evidently appears that Leandro Serrano
bequeathed all of the property of the deceased Maria Solla to his son Simeon Serrano only in order that he might
comply with her pious requests. Furthermore if to ease his conscience it had been Leandro Serrano's desire to deliver
the aforesaid legacies to the legatees or to their successors in interest he would have done so during his lifetime or
would have said so clearly in his will and would not have given all of his said property to his son Simeon Serrano.

In order to determine the testator's intention, the court should place itself as near as possible in his position, and
hence, where the language of the will is ambiguous or doubtful, should take into consideration the situation of the
testator and the facts and circumstances surrounding him at the time the will executed. (40 Cyc., 1392.) Where the
testator's intention is manifest from the context of the will and surrounding circumstances, but is obscured by inapt
and inaccurate modes of expression, the language will be subordinated to the intention, and in order to give effect to
such intention, as far as possible, the court may depart from the strict wording and read word or phrase in a sense
different from that which is ordinarily attributed to it, and for such purpose may mould or change the language of the
will. such as restricting its application or supplying omitted words or phrases. (40 Cyc., 1399.)

In the present case, it clearly appearing that it was Mari Solla's intention, in ordering her universal heir Leandro
Serrano in her will at the hour of his death, to insist upon the compliance of her orders by his heirs, that the latter
should comply with her pious orders and that she did not mean her orders concerning her legacies, the compliance of
which she had entrusted to Leandro Serrano, we are authorized to restrict the application of the words "all that I have
here ordered" used by the said Maria Solla and the words "all her orders" used by Leandro Serrano in their respective
wills limiting them to the pious orders and substituting the phrase "in regard to the annual masses" after the words
used by both testators, respectively.
 FIRST DIVISION
G.R. No. 174489 April 11, 2012
ANTONIO B. BALTAZAR, SEBASTIAN M. BALTAZAR, ANTONIO L. MANGALINDAN, ROSIE M. MATEO,
NENITA A. PACHECO, VIRGILIO REGALA, JR., and RAFAEL TITCO, Petitioners,
vs.
LORENZO LAXA, Respondent.
DECISION
DEL CASTILLO, J.:
It is incumbent upon those who oppose the probate of a will to clearly establish that the decedent was not of sound
and disposing mind at the time of the execution of said will. Otherwise, the state is duty-bound to give full effect to the
wishes of the testator to distribute his estate in the manner provided in his will so long as it is legally tenable.1
Before us is a Petition for Review on Certiorari2 of the June 15, 2006 Decision3 of the Court of Appeals (CA) in CA-
G.R. CV No. 80979 which reversed the September 30, 2003 Decision4 of the Regional Trial Court (RTC), Branch 52,
Guagua, Pampanga in Special Proceedings No. G-1186. The assailed CA Decision granted the petition for probate of
the notarial will of Paciencia Regala (Paciencia), to wit:
WHEREFORE, premises considered, finding the appeal to be impressed with merit, the decision in SP. PROC. NO.
G-1186 dated 30 September 2003, is hereby SET ASIDE and a new one entered GRANTING the petition for the
probate of the will of PACIENCIA REGALA.
SO ORDERED.5
Also assailed herein is the August 31, 2006 CA Resolution6 which denied the Motion for Reconsideration thereto.
Petitioners call us to reverse the CA’s assailed Decision and instead affirm the Decision of the RTC which disallowed
the notarial will of Paciencia.
Factual Antecedents
Paciencia was a 78 year old spinster when she made her last will and testament entitled "Tauli Nang Bilin o
Testamento Miss Paciencia Regala"7 (Will) in the Pampango dialect on September 13, 1981. The Will, executed in the
house of retired Judge Ernestino G. Limpin (Judge Limpin), was read to Paciencia twice. After which, Paciencia
expressed in the presence of the instrumental witnesses that the document is her last will and testament. She
thereafter affixed her signature at the end of the said document on page 38 and then on the left margin of pages 1, 2
and 4 thereof.9
The witnesses to the Will were Dra. Maria Lioba A. Limpin (Dra. Limpin), Francisco Garcia (Francisco) and Faustino
R. Mercado (Faustino). The three attested to the Will’s due execution by affixing their signatures below its attestation
clause10 and on the left margin of pages 1, 2 and 4 thereof,11 in the presence of Paciencia and of one another and of
Judge Limpin who acted as notary public.
Childless and without any brothers or sisters, Paciencia bequeathed all her properties to respondent Lorenzo R. Laxa
(Lorenzo) and his wife Corazon F. Laxa and their children Luna Lorella Laxa and Katherine Ross Laxa, thus:
xxxx
Fourth - In consideration of their valuable services to me since then up to the present by the spouses LORENZO
LAXA and CORAZON F. LAXA, I hereby BEQUEATH, CONVEY and GIVE all my properties enumerated in parcels 1
to 5 unto the spouses LORENZO R. LAXA and CORAZON F. LAXA and their children, LUNA LORELLA LAXA and
KATHERINE LAXA, and the spouses Lorenzo R. Laxa and Corazon F. Laxa both of legal age, Filipinos, presently
residing at Barrio Sta. Monica, [Sasmuan], Pampanga and their children, LUNA LORELLA and KATHERINE ROSS
LAXA, who are still not of legal age and living with their parents who would decide to bequeath since they are the
children of the spouses;
xxxx
[Sixth] - Should other properties of mine may be discovered aside from the properties mentioned in this last will and
testament, I am also bequeathing and giving the same to the spouses Lorenzo R. Laxa and Corazon F. Laxa and
their two children and I also command them to offer masses yearly for the repose of my soul and that of D[ñ]a
Nicomeda Regala, Epifania Regala and their spouses and with respect to the fishpond situated at San Antonio, I
likewise command to fulfill the wishes of D[ñ]a Nicomeda Regala in accordance with her testament as stated in my
testament. x x x12
The filial relationship of Lorenzo with Paciencia remains undisputed. Lorenzo is Paciencia’s nephew whom she
treated as her own son. Conversely, Lorenzo came to know and treated Paciencia as his own mother.13 Paciencia
lived with Lorenzo’s family in Sasmuan, Pampanga and it was she who raised and cared for Lorenzo since his birth.
Six days after the execution of the Will or on September 19, 1981, Paciencia left for the United States of America
(USA). There, she resided with Lorenzo and his family until her death on January 4, 1996.
In the interim, the Will remained in the custody of Judge Limpin.
More than four years after the death of Paciencia or on April 27, 2000, Lorenzo filed a petition14 with the RTC of
Guagua, Pampanga for the probate of the Will of Paciencia and for the issuance of Letters of Administration in his
favor, docketed as Special Proceedings No. G-1186.
There being no opposition to the petition after its due publication, the RTC issued an Order on June 13,
200015allowing Lorenzo to present evidence on June 22, 2000. On said date, Dra. Limpin testified that she was one of
the instrumental witnesses in the execution of the last will and testament of Paciencia on September 13, 1981.16 The
Will was executed in her father’s (Judge Limpin) home office, in her presence and of two other witnesses, Francisco
and Faustino.17 Dra. Limpin positively identified the Will and her signatures on all its four pages.18 She likewise
positively identified the signature of her father appearing thereon.19 Questioned by the prosecutor regarding Judge
Limpin’s present mental fitness, Dra. Limpin testified that her father had a stroke in 1991 and had to undergo brain
surgery.20 The judge can walk but can no longer talk and remember her name. Because of this, Dra. Limpin stated
that her father can no longer testify in court.21
The following day or on June 23, 2000, petitioner Antonio Baltazar (Antonio) filed an opposition22 to Lorenzo’s petition.
Antonio averred that the properties subject of Paciencia’s Will belong to Nicomeda Regala Mangalindan, his
predecessor-in-interest; hence, Paciencia had no right to bequeath them to Lorenzo.23
Barely a month after or on July 20, 2000, Antonio, now joined by petitioners Sebastian M. Baltazar, Virgilio Regala,
Jr., Nenita A. Pacheco, Felix B. Flores, Rafael Titco, Rosie M. Mateo (Rosie) and Antonio L. Mangalindan filed a
Supplemental Opposition24 contending that Paciencia’s Will was null and void because ownership of the properties
had not been transferred and/or titled to Paciencia before her death pursuant to Article 1049, paragraph 3 of the Civil
Code.25 Petitioners also opposed the issuance of Letters of Administration in Lorenzo’s favor arguing that Lorenzo
was disqualified to be appointed as such, he being a citizen and resident of the USA.26 Petitioners prayed that Letters
of Administration be instead issued in favor of Antonio.27
Later still on September 26, 2000, petitioners filed an Amended Opposition 28 asking the RTC to deny the probate of
Paciencia’s Will on the following grounds: the Will was not executed and attested to in accordance with the
requirements of the law; that Paciencia was mentally incapable to make a Will at the time of its execution; that she
was forced to execute the Will under duress or influence of fear or threats; that the execution of the Will had been
procured by undue and improper pressure and influence by Lorenzo or by some other persons for his benefit; that the
signature of Paciencia on the Will was forged; that assuming the signature to be genuine, it was obtained through
fraud or trickery; and, that Paciencia did not intend the document to be her Will. Simultaneously, petitioners filed an
Opposition and Recommendation29 reiterating their opposition to the appointment of Lorenzo as administrator of the
properties and requesting for the appointment of Antonio in his stead.
On January 29, 2001, the RTC issued an Order30 denying the requests of both Lorenzo and Antonio to be appointed
administrator since the former is a citizen and resident of the USA while the latter’s claim as a co-owner of the
properties subject of the Will has not yet been established.
Meanwhile, proceedings on the petition for the probate of the Will continued. Dra. Limpin was recalled for cross-
examination by the petitioners. She testified as to the age of her father at the time the latter notarized the Will of
Paciencia; the living arrangements of Paciencia at the time of the execution of the Will; and the lack of photographs
when the event took place. 31
Aside from Dra. Limpin, Lorenzo and Monico Mercado (Monico) also took the witness stand. Monico, son of Faustino,
testified on his father’s condition. According to him his father can no longer talk and express himself due to brain
damage. A medical certificate was presented to the court to support this allegation. 32
For his part, Lorenzo testified that: from 1944 until his departure for the USA in April 1980, he lived in Sasmuan,
Pampanga with his family and his aunt, Paciencia; in 1981 Paciencia went to the USA and lived with him and his
family until her death in January 1996; the relationship between him and Paciencia was like that of a mother and child
since Paciencia took care of him since birth and took him in as an adopted son; Paciencia was a spinster without
children, and without brothers and sisters; at the time of Paciencia’s death, she did not suffer from any mental
disorder and was of sound mind, was not blind, deaf or mute; the Will was in the custody of Judge Limpin and was
only given to him after Paciencia’s death through Faustino; and he was already residing in the USA when the Will was
executed.33 Lorenzo positively identified the signature of Paciencia in three different documents and in the Will itself
and stated that he was familiar with Paciencia’s signature because he accompanied her in her transactions.34 Further,
Lorenzo belied and denied having used force, intimidation, violence, coercion or trickery upon Paciencia to execute
the Will as he was not in the Philippines when the same was executed.35 On cross-examination, Lorenzo clarified that
Paciencia informed him about the Will shortly after her arrival in the USA but that he saw a copy of the Will only after
her death.36
As to Francisco, he could no longer be presented in court as he already died on May 21, 2000.
For petitioners, Rosie testified that her mother and Paciencia were first cousins.37 She claimed to have helped in the
household chores in the house of Paciencia thereby allowing her to stay therein from morning until evening and that
during the period of her service in the said household, Lorenzo’s wife and his children were staying in the same
house.38 She served in the said household from 1980 until Paciencia’s departure for the USA on September 19,
1981.39
On September 13, 1981, Rosie claimed that she saw Faustino bring "something" for Paciencia to sign at the latter’s
house.40 Rosie admitted, though, that she did not see what that "something" was as same was placed inside an
envelope.41 However, she remembered Paciencia instructing Faustino to first look for money before she signs
them.42 A few days after or on September 16, 1981, Paciencia went to the house of Antonio’s mother and brought with
her the said envelope.43 Upon going home, however, the envelope was no longer with Paciencia.44 Rosie further
testified that Paciencia was referred to as "magulyan" or "forgetful" because she would sometimes leave her wallet in
the kitchen then start looking for it moments later.45 On cross examination, it was established that Rosie was neither a
doctor nor a psychiatrist, that her conclusion that Paciencia was "magulyan" was based on her personal
assessment,46 and that it was Antonio who requested her to testify in court.47
In his direct examination, Antonio stated that Paciencia was his aunt.48 He identified the Will and testified that he had
seen the said document before because Paciencia brought the same to his mother’s house and showed it to him
along with another document on September 16, 1981.49 Antonio alleged that when the documents were shown to him,
the same were still unsigned.50 According to him, Paciencia thought that the documents pertained to a lease of one of
her rice lands,51 and it was he who explained that the documents were actually a special power of attorney to lease
and sell her fishpond and other properties upon her departure for the USA, and a Will which would transfer her
properties to Lorenzo and his family upon her death.52 Upon hearing this, Paciencia allegedly uttered the following
words: "Why will I never [return], why will I sell all my properties?" Who is Lorenzo? Is he the only [son] of God? I
have other relatives [who should] benefit from my properties. Why should I die already?"53 Thereafter, Antonio advised
Paciencia not to sign the documents if she does not want to, to which the latter purportedly replied, "I know nothing
about those, throw them away or it is up to you. The more I will not sign them."54 After which, Paciencia left the
documents with Antonio. Antonio kept the unsigned documents
and eventually turned them over to Faustino on September 18, 1981.55
Ruling of the Regional Trial Court
On September 30, 2003, the RTC rendered its Decision56 denying the petition thus:
WHEREFORE, this court hereby (a) denies the petition dated April 24, 2000; and (b) disallows the notarized will dated
September 13, 1981 of Paciencia Regala.
SO ORDERED.57
The trial court gave considerable weight to the testimony of Rosie and concluded that at the time Paciencia signed the
Will, she was no longer possessed of sufficient reason or strength of mind to have testamentary capacity.58
Ruling of the Court of Appeals
On appeal, the CA reversed the RTC Decision and granted the probate of the Will of Paciencia. The appellate court
did not agree with the RTC’s conclusion that Paciencia was of unsound mind when she executed the Will. It
ratiocinated that "the state of being ‘magulyan’ does not make a person mentally unsound so [as] to render
[Paciencia] unfit for executing a Will."59 Moreover, the oppositors in the probate proceedings were not able to
overcome the presumption that every person is of sound mind. Further, no concrete circumstances or events were
given to prove the allegation that Paciencia was tricked or forced into signing the Will.60
Petitioners moved for reconsideration61 but the motion was denied by the CA in its Resolution62 dated August 31,
2006.
Hence, this petition.
Issues
Petitioners come before this Court by way of Petition for Review on Certiorari ascribing upon the CA the following
errors:
I.
THE HONORABLE COURT OF APPEALS SERIOUSLY ERRED WHEN IT ALLOWED THE PROBATE
OF PACIENCIA’S WILL DESPITE RESPONDENT’S UTTER FAILURE TO COMPLY WITH SECTION
11, RULE 76 OF THE RULES OF COURT;
 II.
THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN MAKING CONCLUSIONS NOT IN
ACCORDANCE WITH THE EVIDENCE ON RECORD;
III.
THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN RULING THAT PETITIONERS FAILED
TO PROVE THAT PACIENCIA WAS NOT OF SOUND MIND AT THE TIME THE WILL WAS
ALLEGEDLY EXECUTED63
The pivotal issue is whether the authenticity and due execution of the notarial Will was sufficiently established to
warrant its allowance for probate.
Our Ruling
We deny the petition.
Faithful compliance with the formalities laid down by law is apparent from the face of the Will.
Courts are tasked to determine nothing more than the extrinsic validity of a Will in probate proceedings.64 This is
expressly provided for in Rule 75, Section 1 of the Rules of Court, which states:
Rule 75
Production of Will. Allowance of Will Necessary.
Section 1. Allowance necessary. Conclusive as to execution. – No will shall pass either real or personal estate unless
it is proved and allowed in the proper court. Subject to the right of appeal, such allowance of the will shall be
conclusive as to its due execution.
Due execution of the will or its extrinsic validity pertains to whether the testator, being of sound mind, freely executed
the will in accordance with the formalities prescribed by law.65 These formalities are enshrined in Articles 805 and 806
of the New Civil Code, to wit:
Art. 805. Every will, other than a holographic will, must be subscribed at the end thereof by the testator himself or by
the testator's name written by some other person in his presence, and by his express direction, and attested and
subscribed by three or more credible witnesses in the presence of the testator and of one another.
The testator or the person requested by him to write his name and the instrumental witnesses of the will, shall also
sign, as aforesaid, each and every page thereof, except the last, on the left margin, and all the pages shall be
numbered correlatively in letters placed on the upper part of each page.
The attestation shall state the number of pages used upon which the will is written, and the fact that the testator
signed the will and every page thereof, or caused some other person to write his name, under his express direction, in
the presence of the instrumental witnesses, and that the latter witnessed and signed the will and all the pages thereof
in the presence of the testator and of one another.
If the attestation clause is in a language not known to the witnesses, it shall be interpreted to them.
Art. 806. Every will must be acknowledged before a notary public by the testator and the witnesses. The notary public
shall not be required to retain a copy of the will, or file another with the Office of the Clerk of Court.
Here, a careful examination of the face of the Will shows faithful compliance with the formalities laid down by law. The
signatures of the testatrix, Paciencia, her instrumental witnesses and the notary public, are all present and evident on
the Will. Further, the attestation clause explicitly states the critical requirement that the testatrix and her instrumental
witnesses signed the Will in the presence of one another and that the witnesses attested and subscribed to the Will in
the presence of the testator and of one another. In fact, even the petitioners acceded that the signature of Paciencia
in the Will may be authentic although they question her state of mind when she signed the same as well as the
voluntary nature of said act.
The burden to prove that Paciencia was of unsound mind at the time of the execution of the will lies on the shoulders
of the petitioners.
Petitioners, through their witness Rosie, claim that Paciencia was "magulyan" or forgetful so much so that it effectively
stripped her of testamentary capacity. They likewise claimed in their Motion for Reconsideration66 filed with the CA
that Paciencia was not only "magulyan" but was actually suffering from paranoia.67
We are not convinced.
We agree with the position of the CA that the state of being forgetful does not necessarily make a person mentally
unsound so as to render him unfit to execute a Will.68 Forgetfulness is not equivalent to being of unsound mind.
Besides, Article 799 of the New Civil Code states:
Art. 799. To be of sound mind, it is not necessary that the testator be in full possession of all his reasoning faculties,
or that his mind be wholly unbroken, unimpaired, or unshattered by disease, injury or other cause.
It shall be sufficient if the testator was able at the time of making the will to know the nature of the estate to be
disposed of, the proper objects of his bounty, and the character of the testamentary act.
In this case, apart from the testimony of Rosie pertaining to Paciencia’s forgetfulness, there is no substantial
evidence, medical or otherwise, that would show that Paciencia was of unsound mind at the time of the execution of
the Will. On the other hand, we find more worthy of credence Dra. Limpin’s testimony as to the soundness of mind of
Paciencia when the latter went to Judge Limpin’s house and voluntarily executed the Will. "The testimony of
subscribing witnesses to a Will concerning the testator’s mental condition is entitled to great weight where they are
truthful and intelligent."69 More importantly, a testator is presumed to be of sound mind at the time of the execution of
the Will and the burden to prove otherwise lies on the oppositor. Article 800 of the New Civil Code states:
Art. 800. The law presumes that every person is of sound mind, in the absence of proof to the contrary.
The burden of proof that the testator was not of sound mind at the time of making his dispositions is on the person
who opposes the probate of the will; but if the testator, one month, or less, before making his will was publicly known
to be insane, the person who maintains the validity of the will must prove that the testator made it during a lucid
interval.
Here, there was no showing that Paciencia was publicly known to be insane one month or less before the making of
the Will. Clearly, thus, the burden to prove that Paciencia was of unsound mind lies upon the shoulders of petitioners.
However and as earlier mentioned, no substantial evidence was presented by them to prove the same, thereby
warranting the CA’s finding that petitioners failed to discharge such burden.
Furthermore, we are convinced that Paciencia was aware of the nature of her estate to be disposed of, the proper
objects of her bounty and the character of the testamentary act. As aptly pointed out by the CA:
A scrutiny of the Will discloses that [Paciencia] was aware of the nature of the document she executed. She specially
requested that the customs of her faith be observed upon her death. She was well aware of how she acquired the
properties from her parents and the properties she is bequeathing to LORENZO, to his wife CORAZON and to his two
(2) children. A third child was born after the execution of the will and was not included therein as devisee.70
Bare allegations of duress or influence of fear or threats, undue and improper influence and pressure, fraud and
trickery cannot be used as basis to deny the probate of a will.
An essential element of the validity of the Will is the willingness of the testator or testatrix to execute the document
that will distribute his/her earthly possessions upon his/her death. Petitioners claim that Paciencia was forced to
execute the Will under duress or influence of fear or threats; that the execution of the Will had been procured by
undue and improper pressure and influence by Lorenzo or by some other persons for his benefit; and that assuming
Paciencia’s signature to be genuine, it was obtained through fraud or trickery. These are grounded on the alleged
conversation between Paciencia and Antonio on September 16, 1981 wherein the former purportedly repudiated the
Will and left it unsigned.
We are not persuaded.
We take into consideration the unrebutted fact that Paciencia loved and treated Lorenzo as her own son and that love
even extended to Lorenzo’s wife and children. This kind of relationship is not unusual. It is in fact not unheard of in our
culture for old maids or spinsters to care for and raise their nephews and nieces and treat them as their own children.
Such is a prevalent and accepted cultural practice that has resulted in many family discords between those favored by
the testamentary disposition of a testator and those who stand to benefit in case of intestacy.
In this case, evidence shows the acknowledged fact that Paciencia’s relationship with Lorenzo and his family is
different from her relationship with petitioners. The very fact that she cared for and raised Lorenzo and lived with him
both here and abroad, even if the latter was already married and already has children, highlights the special bond
between them. This unquestioned relationship between Paciencia and the devisees tends to support the authenticity
of the said document as against petitioners’ allegations of duress, influence of fear or threats, undue and improper
influence, pressure, fraud, and trickery which, aside from being factual in nature, are not supported by concrete,
substantial and credible evidence on record. It is worth stressing that bare arguments, no matter how forceful, if not
based on concrete and substantial evidence cannot suffice to move the Court to uphold said
allegations.71Furthermore, "a purported will is not [to be] denied legalization on dubious grounds. Otherwise, the very
institution of testamentary succession will be shaken to its foundation, for even if a will has been duly executed in fact,
whether x x x it will be probated would have to depend largely on the attitude of those interested in [the estate of the
deceased]."72
Court should be convinced by the evidence presented before it that the Will was duly executed.
Petitioners dispute the authenticity of Paciencia’s Will on the ground that Section 11 of Rule 76 of the Rules of Court
was not complied with. It provides:
RULE 76
Allowance or Disallowance of Will
Section 11. Subscribing witnesses produced or accounted for where will contested. – If the will is contested, all the
subscribing witnesses, and the notary in the case of wills executed under the Civil Code of the Philippines, if present
in the Philippines and not insane, must be produced and examined, and the death, absence, or insanity of any of
them must be satisfactorily shown to the court. If all or some of such witnesses are present in the Philippines but
outside the province where the will has been filed, their deposition must be taken. If any or all of them testify against
the due execution of the will, or do not remember having attested to it, or are otherwise of doubtful credibility, the will
may nevertheless, be allowed if the court is satisfied from the testimony of other witnesses and from all the evidence
presented that the will was executed and attested in the manner required by law.
If a holographic will is contested, the same shall be allowed if at least three (3) witnesses who know the handwriting of
the testator explicitly declare that the will and the signature are in the handwriting of the testator; in the absence of
any competent witnesses, and if the court deem it necessary, expert testimony may be resorted to. (Emphasis
supplied.)
They insist that all subscribing witnesses and the notary public should have been presented in court since all but one
witness, Francisco, are still living.
We cannot agree with petitioners.
We note that the inability of Faustino and Judge Limpin to appear and testify before the court was satisfactorily
explained during the probate proceedings. As testified to by his son, Faustino had a heart attack, was already
bedridden and could no longer talk and express himself due to brain damage. To prove this, said witness presented
the corresponding medical certificate. For her part, Dra. Limpin testified that her father, Judge Limpin, suffered a
stroke in 1991 and had to undergo brain surgery. At that time, Judge Limpin could no longer talk and could not even
remember his daughter’s name so that Dra. Limpin stated that given such condition, her father could no longer testify.
It is well to note that at that point, despite ample opportunity, petitioners neither interposed any objections to the
testimonies of said witnesses nor challenged the same on cross examination. We thus hold that for all intents and
purposes, Lorenzo was able to satisfactorily account for the incapacity and failure of the said subscribing witness and
of the notary public to testify in court. Because of this the probate of Paciencia’s Will may be allowed on the basis of
Dra. Limpin’s testimony proving her sanity and the due execution of the Will, as well as on the proof of her
handwriting. It is an established rule that "[a] testament may not be disallowed just because the attesting witnesses
declare against its due execution; neither does it have to be necessarily allowed just because all the attesting
witnesses declare in favor of its legalization; what is decisive is that the court is convinced by evidence before it, not
necessarily from the attesting witnesses, although they must testify, that the will was or was not duly executed in the
manner required by law."73 1âwphi1
Moreover, it bears stressing that "[i]rrespective x x x of the posture of any of the parties as regards the authenticity
and due execution of the will x x x in question, it is the mandate of the law that it is the evidence before the court
and/or [evidence that] ought to be before it that is controlling."74 "The very existence of [the Will] is in itself prima facie
proof that the supposed [testatrix] has willed that [her] estate be distributed in the manner therein provided, and it is
incumbent upon the state that, if legally tenable, such desire be given full effect independent of the attitude of the
parties affected thereby."75 This, coupled with Lorenzo’s established relationship with Paciencia, the evidence and the
testimonies of disinterested witnesses, as opposed to the total lack of evidence presented by petitioners apart from
their self-serving testimonies, constrain us to tilt the balance in favor of the authenticity of the Will and its allowance
for probate.
WHEREFORE, the petition is DENIED. The Decision dated June 15, 2006 and the Resolution dated August 31, 2006
of the Court of Appeals in CA-G.R. CV No. 80979 are AFFIRMED.
SO ORDERED.
 EN BANC It is not here pretended that the cross appearing on the will is the usual signature of Antero Mercado or even one of
the ways by which he signed his name. After mature reflection, we are not prepared to liken the mere sign of the
cross to a thumbmark, and the reason is obvious. The cross cannot and does not have the trustworthiness of a
G.R. No. L-4067 November 29, 1951
thumbmark.

In the Matter of the will of ANTERO MERCADO, deceased. ROSARIO GARCIA, petitioner,
What has been said makes it unnecessary for us to determine there is a sufficient recital in the attestation clause as
vs.
to the signing of the will by the testator in the presence of the witnesses, and by the latter in the presence of the
JULIANA LACUESTA, ET AL., respondents.
testator and of each other.

Elviro L. Peralta and Hermenegildo A. Prieto for petitioner.

Wherefore, the appealed decision is hereby affirmed, with against the petitioner. So ordered.
Faustino B. Tobia, Juan I. Ines and Federico Tacason for respondents.

PARAS, C.J.:

This is an appeal from a decision of the Court of Appeals disallowing the will of Antero Mercado dated January 3,
1943. The will is written in the Ilocano dialect and contains the following attestation clause:

We, the undersigned, by these presents to declare that the foregoing testament of Antero Mercado was
signed by himself and also by us below his name and of this attestation clause and that of the left margin
of the three pages thereof. Page three the continuation of this attestation clause; this will is written in
Ilocano dialect which is spoken and understood by the testator, and it bears the corresponding number in
letter which compose of three pages and all them were signed in the presence of the testator and
witnesses, and the witnesses in the presence of the testator and all and each and every one of us
witnesses.

In testimony, whereof, we sign this statement, this the third day of January, one thousand nine hundred
forty three, (1943) A.D.

(Sgd.) NUMERIANO EVANGELISTA (Sgd.) "ROSENDA CORTES

(Sgd.) BIBIANA ILLEGIBLE

The will appears to have been signed by Atty. Florentino Javier who wrote the name of Antero Mercado, followed
below by "A reugo del testator" and the name of Florentino Javier. Antero Mercado is alleged to have written a cross
immediately after his name. The Court of Appeals, reversing the judgement of the Court of First Instance of Ilocos
Norte, ruled that the attestation clause failed (1) to certify that the will was signed on all the left margins of the three
pages and at the end of the will by Atty. Florentino Javier at the express request of the testator in the presence of the
testator and each and every one of the witnesses; (2) to certify that after the signing of the name of the testator by
Atty. Javier at the former's request said testator has written a cross at the end of his name and on the left margin of
the three pages of which the will consists and at the end thereof; (3) to certify that the three witnesses signed the will
in all the pages thereon in the presence of the testator and of each other.

In our opinion, the attestation clause is fatally defective for failing to state that Antero Mercado caused Atty. Florentino
Javier to write the testator's name under his express direction, as required by section 618 of the Code of Civil
Procedure. The herein petitioner (who is appealing by way of certiorari from the decision of the Court of Appeals)
argues, however, that there is no need for such recital because the cross written by the testator after his name is a
sufficient signature and the signature of Atty. Florentino Javier is a surplusage. Petitioner's theory is that the cross is
as much a signature as a thumbmark, the latter having been held sufficient by this Court in the cases of De
Gala vs. Gonzales and Ona, 53 Phil., 104; Dolar vs. Diancin, 55 Phil., 479; Payad vs. Tolentino, 62 Phil., 848;
Neyra vs. Neyra, 76 Phil., 296 and Lopez vs. Liboro, 81 Phil., 429.
 EN BANC
G.R. No. L-15153 August 31, 1960
In the Matter of the summary settlement of the Estate of the deceased
ANACLETA ABELLANA. LUCIO BALONAN, petitioner-appellee,
vs.
EUSEBIA ABELLANA, et al., oppositors-appellants.
T. de los Santos for appellee.
Climaco and Climaco for appellants.
LABARADOR, J.:
Appeal from a decision of the Court of First Instance of Zamboanga City admitting to probate the will of one Anacleta
Abellana. The case was originally appealed to the Court of Appeals where the following assignment of error is made:
The appellants respectfully submit that the Trial Court erred in holding that the supposed testament, Exh.
"A", was signed in accordance with law; and in admitting the will to probate.
In view of the fact that the appeal involves a question of law the said court has certified the case to us.
The facts as found by the trial court are as follows:
It appears on record that the last Will and Testament (Exhibit "A"), which is sought to be probated, is
written in the Spanish language and consists of two (2) typewritten pages (pages 4 and 5 of the record)
double space. The first page is signed by Juan Bello and under his name appears typewritten "Por la
testadora Anacleta Abellana, residence Certificate A-1167629, Enero 20, 1951, Ciudad de
Zamboanga', and on the second page appears the signature of three (3) instrumental witnesses Blas
Sebastian, Faustino Macaso and Rafael Ignacio, at the bottom of which appears the signature of T. de
los Santos and below his signature is his official designation as the notary public who notarized the said
testament. On the first page on the left margin of the said instrument also appear the signatures of the
instrumental witnesses. On the second page, which is the last page of said last Will and Testament, also
appears the signature of the three (3) instrumental witnesses and on that second page on the left margin
appears the signature of Juan Bello under whose name appears handwritten the following phrase, "Por la
Testadora Anacleta Abellana'. The will is duly acknowledged before Notary Public Attorney Timoteo de
los Santos. (Emphasis supplied)
The appeal squarely presents the following issue: Does the signature of Dr. Juan A. Abello above the typewritten
statement "Por la Testadora Anacleta Abellana . . ., Ciudad de Zamboanga," comply with the requirements of law
prescribing the manner in which a will shall be executed?
The present law, Article 805 of the Civil Code, in part provides as follows:
Every will, other than a holographic will, must be subscribed at the end thereof by the testator himself
or by the testator's name written by some other person in his presence, and by his express direction, and
attested and subscribed by three or more credible witness in the presence of the testator and of one
another. (Emphasis supplied.)
The clause "must be subscribed at the end thereof by the testator himself or by the testator's name written by some
other person in his presence and by his express direction," is practically the same as the provisions of Section 618 of
the Code of Civil Procedure (Act No. 190) which reads as follows:
No will, except as provided in the preceding section shall be valid to pass any estate, real or personal,
nor charge or affect the same, unless it be in writing and signed by the testator, or by the testator's name
written by some other person in his presence, and by his express direction, and attested and subscribed
by three or more credible witnesses in the presence of the testator and of each other. . . . (Emphasis
supplied).
Note that the old law as well as the new require that the testator himself sign the will, or if he cannot do so, the
testator's name must be written by some other person in his presence and by his express direction. Applying this
provision this Court said in the case of Ex Parte Pedro Arcenas, et al., Phil., 700:
It will be noticed from the above-quoted section 618 of the Code of Civil Procedure that where the
testator does not know how, or is unable, to sign, it will not be sufficient that one of the attesting
witnesses signs the will at the testator's request, the notary certifying thereto as provided in Article 695 of
the Civil Code, which, in this respect, was modified by section 618 above referred to, but it is necessary
that the testator's name be written by the person signing in his stead in the place where he could have
signed if he knew how or was able to do so, and this in the testator's presence and by his express
direction; so that a will signed in a manner different than that prescribed by law shall not be valid and will
not be allowed to be probated.
Where a testator does not know how, or is unable for any reason, to sign the will himself, it shall be
signed in the following manner:
John Doe by the testator, Richard Doe; or in this form: "By the testator, John Doe, Richard Doe." All this
must be written by the witness signing at the request of the testator.
Therefore, under the law now in force, the witness Naval A. Vidal should have written at the bottom of the
will the full name of the testator and his own name in one forms given above. He did not do so, however,
and this is failure to comply with the law is a substantial defect which affects the validity of the will and
precludes its allowance, notwithstanding the fact that no one appeared to oppose it.
The same ruling was laid down in the case of Cuison vs. Concepcion, 5 Phil., 552. In the case of Barut vs.
Cabacungan, 21 Phil., 461, we held that the important thing is that it clearly appears that the name of the testatrix was
signed at her express direction; it is unimportant whether the person who writes the name of the testatrix signs his
own or not. Cases of the same import areas follows: (Ex Parte Juan Ondevilla, 13 Phil., 479, Caluya vs.Domingo, 27
Phil., 330; Garcia vs. Lacuesta, 90 Phil., 489).
In the case at bar the name of the testatrix, Anacleta Abellana, does not appear written under the will by said Abellana
herself, or by Dr. Juan Abello. There is, therefore, a failure to comply with the express requirement in the law that the
testator must himself sign the will, or that his name be affixed thereto by some other person in his presence and by
his express direction.
It appearing that the above provision of the law has not been complied with, we are constrained to declare that the
said will of the deceased Anacleta Abellana may not be admitted to probate.
WHEREFORE, the decision appealed from is hereby set aside and the petition for the probate of the will denied. With
costs against petitioner.
 EN BANC upon the paper at the moment of its subscription by each of them, but that at that moment existing conditions and
their position with relation to each other were such that by merely casting the eyes in the proper direction they could
have seen each other sign. To extend the doctrine further would open the door to the possibility of all manner of fraud,
G.R. No. L-5971 February 27, 1911
substitution, and the like, and would defeat the purpose for which this particular condition is prescribed in the code as
one of the requisites in the execution of a will.
BEATRIZ NERA, ET AL., plaintiffs-appellees,
vs.
The decree entered by the court below admitting the instrument propounded therein to probate as the last will and
NARCISA RIMANDO, defendant-appellant.
testament of Pedro Rimando, deceased, is affirmed with costs of this instance against the appellant.

Valerio Fontanilla and Andres Asprer for appellant.

Anacleto Diaz for appellees.

CARSON, J.:

The only question raised by the evidence in this case as to the due execution of the instrument propounded as a will
in the court below, is whether one of the subscribing witnesses was present in the small room where it was executed
at the time when the testator and the other subscribing witnesses attached their signatures; or whether at that time he
was outside, some eight or ten feet away, in a large room connecting with the smaller room by a doorway, across
which was hung a curtain which made it impossible for one in the outside room to see the testator and the other
subscribing witnesses in the act of attaching their signatures to the instrument.

A majority of the members of the court is of opinion that this subscribing witness was in the small room with the
testator and the other subscribing witnesses at the time when they attached their signatures to the instrument, and
this finding, of course, disposes of the appeal and necessitates the affirmance of the decree admitting the document
to probate as the last will and testament of the deceased.

The trial judge does not appear to have considered the determination of this question of fact of vital importance in the
determination of this case, as he was of opinion that under the doctrine laid down in the case of Jaboneta vs.
Gustilo (5 Phil. Rep., 541) the alleged fact that one of the subscribing witnesses was in the outer room when the
testator and the other describing witnesses signed the instrument in the inner room, had it been proven, would not be
sufficient in itself to invalidate the execution of the will. But we are unanimously of opinion that had this subscribing
witness been proven to have been in the outer room at the time when the testator and the other subscribing witnesses
attached their signatures to the instrument in the inner room, it would have been invalid as a will, the attaching of
those signatures under circumstances not being done "in the presence" of the witness in the outer room. This
because the line of vision from this witness to the testator and the other subscribing witnesses would necessarily have
been impeded by the curtain separating the inner from the outer one "at the moment of inscription of each signature."

In the case just cited, on which the trial court relied, we held that:

The true test of presence of the testator and the witnesses in the execution of a will is not whether they
actually saw each other sign, but whether they might have been seen each other sign, had they chosen
to do so, considering their mental and physical condition and position with relation to each other at the
moment of inscription of each signature.

But it is especially to be noted that the position of the parties with relation to each other at the moment of the
subscription of each signature, must be such that they may see each other sign if they choose to do so. This, of
course, does not mean that the testator and the subscribing witnesses may be held to have executed the instrument
in the presence of each other if it appears that they would not have been able to see each other sign at that moment,
without changing their relative positions or existing conditions. The evidence in the case relied upon by the trial judge
discloses that "at the moment when the witness Javellana signed the document he was actually and physically
present and in such position with relation to Jaboneta that he could see everything that took place by merely casting
his eyes in the proper direction and without any physical obstruction to prevent his doing so." And the decision merely
laid down the doctrine that the question whether the testator and the subscribing witnesses to an alleged will sign the
instrument in the presence of each other does not depend upon proof of the fact that their eyes were actually cast
 FIRST DIVISION Subsequently, the new Judge denied the motion for reconsideration as well as the manifestation and/or motion
filed ex parte. In the same order of denial, the motion for the appointment of special administrator was likewise denied
because of the petitioner's failure to comply with the order requiring him to submit the names of' the intestate heirs
G.R. No. L-36033 November 5, 1982
and their addresses.
IN THE MATTER OF THE PETITION FOR THE PROBATE OF THE WILL OF DOROTEA PEREZ, (deceased):
APOLONIO TABOADA, petitioner,
vs. The petitioner decided to file the present petition.
HON. AVELINO S. ROSAL, as Judge of Court of First Instance of Southern Leyte, (Branch III,
Maasin), respondent.
For the validity of a formal notarial will, does Article 805 of the Civil Code require that the testatrix and all the three
instrumental and attesting witnesses sign at the end of the will and in the presence of the testatrix and of one
Erasmo M. Diola counsel for petition. another?

Hon. Avelino S. Rosal in his own behalf. Article 805 of the Civil Code provides:

Every will, other than a holographic will, must be subscribed at the end thereof by the testator
himself or by the testator's name written by some other person in his presence, and by his
express direction, and attested and subscribed by three or more credible witnesses in the
GUTIERREZ, JR. J.:
presence of the testator and of one another.

This is a petition for review of the orders issued by the Court of First Instance of Southern Leyte, Branch III, in Special
The testator or the person requested by him to write his name and the instrumental
Proceedings No. R-1713, entitled "In the Matter of the Petition for Probate of the Will of Dorotea Perez, Deceased;
witnesses of the will, shall also sign, as aforesaid, each and every page thereof, except the
Apolonio Taboada, Petitioner", which denied the probate of the will, the motion for reconsideration and the motion for
last, on the left margin, and all the pages shall be numbered correlatively in letters placed on
appointment of a special administrator.
the upper part of each page.

In the petition for probate filed with the respondent court, the petitioner attached the alleged last will and testament of
The attestation shall state the number of pages used upon which the will is written, and the
the late Dorotea Perez. Written in the Cebuano-Visayan dialect, the will consists of two pages. The first page contains
fact that the testator signed the will and every page thereof, or caused some other person to
the entire testamentary dispositions and is signed at the end or bottom of the page by the testatrix alone and at the
write his name, under his express direction, in the presence of the instrumental witnesses,
left hand margin by the three (3) instrumental witnesses. The second page which contains the attestation clause and
and that the lacier witnesses and signed the will and the pages thereof in the presence of the
the acknowledgment is signed at the end of the attestation clause by the three (3) attesting witnesses and at the left
testator and of one another.
hand margin by the testatrix.

If the attestation clause is in a language not known to the witnesses, it shall be interpreted to
Since no opposition was filed after the petitioner's compliance with the requirement of publication, the trial court
the witnesses, it shall be interpreted to them.
commissioned the branch clerk of court to receive the petitioner's evidence. Accordingly, the petitioner submitted his
evidence and presented Vicente Timkang, one of the subscribing witnesses to the will, who testified on its
genuineness and due execution. The respondent Judge interprets the above-quoted provision of law to require that, for a notarial will to be valid, it is
not enough that only the testatrix signs at the "end" but an the three subscribing witnesses must also sign at the same
place or at the end, in the presence of the testatrix and of one another because the attesting witnesses to a will attest
The trial court, thru then Presiding Judge Ramon C. Pamatian issued the questioned order denying the probate of the
not merely the will itself but also the signature of the testator. It is not sufficient compliance to sign the page, where
will of Dorotea Perez for want of a formality in its execution. In the same order, the petitioner was also required to
the end of the will is found, at the left hand margin of that page.
submit the names of the intestate heirs with their corresponding addresses so that they could be properly notified and
could intervene in the summary settlement of the estate.
On the other hand, the petitioner maintains that Article 805 of the Civil Code does not make it a condition precedent or
a matter of absolute necessity for the extrinsic validity of the wig that the signatures of the subscribing witnesses
Instead of complying with the order of the trial court, the petitioner filed a manifestation and/or motion, ex partepraying
should be specifically located at the end of the wig after the signature of the testatrix. He contends that it would be
for a thirty-day period within which to deliberate on any step to be taken as a result of the disallowance of the will. He
absurd that the legislature intended to place so heavy an import on the space or particular location where the
also asked that the ten-day period required by the court to submit the names of intestate heirs with their addresses be
signatures are to be found as long as this space or particular location wherein the signatures are found is consistent
held in abeyance.
with good faith and the honest frailties of human nature.

The petitioner filed a motion for reconsideration of the order denying the probate of the will. However, the motion
We find the petition meritorious.
together with the previous manifestation and/or motion could not be acted upon by the Honorable Ramon C.
Pamatian due to his transfer to his new station at Pasig, Rizal. The said motions or incidents were still pending
resolution when respondent Judge Avelino S. Rosal assumed the position of presiding judge of the respondent court. Undoubtedly, under Article 805 of the Civil Code, the will must be subscribed or signed at its end by the testator
himself or by the testator's name written by another person in his presence, and by his express direction, and attested
and subscribed by three or more credible witnesses in the presence of the testator and of one another.
Meanwhile, the petitioner filed a motion for the appointment of special administrator.
It must be noted that the law uses the terms attested and subscribed Attestation consists in witnessing the testator's
execution of the will in order to see and take note mentally that those things are, done which the statute requires for
the execution of a will and that the signature of the testator exists as a fact. On the other hand, subscription is the
signing of the witnesses' names upon the same paper for the purpose of Identification of such paper as the will which
was executed by the testator. (Ragsdale v. Hill, 269 SW 2d 911).
pages upon which the will is written, however, the last part of the body of the will contains a
statement that it is composed of eight pages, which circumstance in our opinion takes this
case out of the rigid rule of construction and places it within the realm of similar cases where
a broad and more liberal view has been adopted to prevent the will of the testator from being
defeated by purely technical considerations.

Insofar as the requirement of subscription is concerned, it is our considered view that the will in this case was
subscribed in a manner which fully satisfies the purpose of Identification.
The signatures of the instrumental witnesses on the left margin of the first page of the will attested not only to the
genuineness of the signature of the testatrix but also the due execution of the will as embodied in the attestation
clause.
While perfection in the drafting of a will may be desirable, unsubstantial departure from the usual forms should be
ignored, especially where the authenticity of the will is not assailed. (Gonzales v. Gonzales, 90 Phil. 444, 449).
The law is to be liberally construed, "the underlying and fundamental objective permeating the provisions on the law
on wills in this project consists in the liberalization of the manner of their execution with the end in view of giving the
testator more freedom in expressing his last wishes but with sufficient safeguards and restrictions to prevent the
commission of fraud and the exercise of undue and improper pressure and influence upon the testator. This objective
is in accord with the modern tendency in respect to the formalities in the execution of a will" (Report of the Code
commission, p. 103).
Parenthetically, Judge Ramon C. Pamatian stated in his questioned order that were not for the defect in the place of
signatures of the witnesses, he would have found the testimony sufficient to establish the validity of the will.
Icasiano v. Icasiano (11 SCRA 422, 429) has the following ruling which applies a similar liberal approach:
... Impossibility of substitution of this page is assured not only (sic) the fact that the testatrix
and two other witnesses did sign the defective page, but also by its bearing the coincident
imprint of the seal of the notary public before whom the testament was ratified by testatrix
and all three witnesses. The law should not be so strictly and literally interpreted as to
penalize the testatrix on account of the inadvertence of a single witness over whose conduct
she had no control where the purpose of the law to guarantee the Identity of the testament
and its component pages is sufficiently attained, no intentional or deliberate deviation
existed, and the evidence on record attests to the fun observance of the statutory requisites.
Otherwise, as stated in Vda. de Gil. Vs. Murciano, 49 Off. Gaz. 1459, at 1479 (decision on
reconsideration) 'witnesses may sabotage the will by muddling or bungling it or the
attestation clause.
WHEREFORE, the present petition is hereby granted. The orders of the respondent court which denied the probate of
tile will, the motion for reconsideration of the denial of probate, and the motion for appointment of a special
administrator are set aside. The respondent court is ordered to allow the probate of the wig and to conduct further
proceedings in accordance with this decision. No pronouncement on costs.
SO ORDERED.

The objects of attestation and of subscription were fully met and satisfied in the present case when the instrumental
witnesses signed at the left margin of the sole page which contains all the testamentary dispositions, especially so
when the will was properly Identified by subscribing witness Vicente Timkang to be the same will executed by the
testatrix. There was no question of fraud or substitution behind the questioned order.

We have examined the will in question and noticed that the attestation clause failed to state the number of pages
used in writing the will. This would have been a fatal defect were it not for the fact that, in this case, it is discernible
from the entire wig that it is really and actually composed of only two pages duly signed by the testatrix and her
instrumental witnesses. As earlier stated, the first page which contains the entirety of the testamentary dispositions is
signed by the testatrix at the end or at the bottom while the instrumental witnesses signed at the left margin. The other
page which is marked as "Pagina dos" comprises the attestation clause and the acknowledgment. The
acknowledgment itself states that "This Last Will and Testament consists of two pages including this page".

In Singson v. Florentino, et al. (92 Phil. 161, 164), this Court made the following observations with respect to the
purpose of the requirement that the attestation clause must state the number of pages used:

The law referred to is article 618 of the Code of Civil Procedure, as amended by Act No.
2645, which requires that the attestation clause shall state the number of pages or sheets
upon which the win is written, which requirement has been held to be mandatory as an
effective safeguard against the possibility of interpolation or omission of some of the pages of
the will to the prejudice of the heirs to whom the property is intended to be bequeathed (In re
will of Andrada, 42 Phil., 180; Uy Coque vs. Navas L. Sioca, 43 Phil. 405; Gumban vs.
Gorecho, 50 Phil. 30; Quinto vs. Morata, 54 Phil. 481; Echevarria vs. Sarmiento, 66 Phil.
611). The ratio decidendi of these cases seems to be that the attestation clause must contain
a statement of the number of sheets or pages composing the will and that if this is missing or
is omitted, it will have the effect of invalidating the will if the deficiency cannot be supplied,
not by evidence aliunde, but by a consideration or examination of the will itself. But here the
situation is different. While the attestation clause does not state the number of sheets or
 THIRD DIVISION The CA correctly declared that a donation mortis causa must comply with the formalities prescribed by law for the
validity of wills,4 "otherwise, the donation is void and would produce no effect." 5 Articles 805 and 806 of the Civil Code
should have been applied.
G.R. No. 192916 October 11, 2010

As the CA correctly found, the purported attestation clause embodied in the Acknowledgment portion does not contain
MANUEL A. ECHAVEZ, Petitioner,
the number of pages on which the deed was written.lavvphilThe exception to this rule in Singson v. Florentino6 and
vs.
Taboada v. Hon. Rosal,7 cannot be applied to the present case, as the facts of this case are not similar with those of
DOZEN CONSTRUCTION AND DEVELOPMENT CORPORATION and THE REGISTER OF DEEDS OF CEBU
Singson and Taboada. In those cases, the Court found that although the attestation clause failed to state the number
CITY, Respondents.
of pages upon which the will was written, the number of pages was stated in one portion of the will. This is not the
factual situation in the present case.
RESOLUTION
Even granting that the Acknowledgment embodies what the attestation clause requires, we are not prepared to hold
BRION, J.: that an attestation clause and an acknowledgment can be merged in one statement.

Vicente Echavez (Vicente) was the absolute owner of several lots in Cebu City, which includes Lot No. 1956-A and That the requirements of attestation and acknowledgment are embodied in two separate provisions of the Civil Code
Lot No. 1959 (subject lots). On September 7, 1985, Vicente donated the subject lots to petitioner Manuel Echavez (Articles 805 and 806, respectively) indicates that the law contemplates two distinct acts that serve different purposes.
(Manuel) through a Deed of Donation Mortis Causa.1 Manuel accepted the donation. An acknowledgment is made by one executing a deed, declaring before a competent officer or court that the deed or
act is his own. On the other hand, the attestation of a will refers to the act of the instrumental witnesses themselves
who certify to the execution of the instrument before them and to the manner of its execution.81avvphi1
In March 1986, Vicente executed a Contract to Sell over the same lots in favor of Dozen Construction and
Development Corporation (Dozen Corporation). In October 1986, they executed two Deeds of Absolute Sale over the
same properties covered by the previous Contract to Sell. Although the witnesses in the present case acknowledged the execution of the Deed of Donation Mortis Causa before
the notary public, this is not the avowal the law requires from the instrumental witnesses to the execution of a
decedent’s will. An attestation must state all the details the third paragraph of Article 805 requires. In the absence of
On November 6, 1986, Vicente died. Emiliano Cabanig, Vicente’s nephew, filed a petition for the settlement of the required avowal by the witnesses themselves, no attestation clause can be deemed embodied in the
Vicente’s intestate estate. On the other hand, Manuel filed a petition to approve Vicente’s donation mortis causa in his Acknowledgement of the Deed of Donation Mortis Causa.
favor and an action to annul the contracts of sale Vicente executed in favor of Dozen Corporation. These cases were
jointly heard.
Finding no reversible error committed by the CA, the Court hereby DENIES Manuel’s petition for review on certiorari.
The Regional Trial Court (RTC) dismissed Manuel’s petition to approve the donation and his action for annulment of
the contracts of sale.2 The RTC found that the execution of a Contract to Sell in favor of Dozen Corporation, after SO ORDERED.
Vicente had donated the lots to Manuel, was an equivocal act that revoked the donation. The Court of Appeals (CA)
affirmed the RTC’s decision.3 The CA held that since the donation in favor of Manuel was a donation mortis causa,
compliance with the formalities for the validity of wills should have been observed. The CA found that the deed of
donation did not contain an attestation clause and was therefore void.

The Petition for Review on Certiorari

Manuel claims that the CA should have applied the rule on substantial compliance in the construction of a will to
Vicente’s donation mortis causa. He insists that the strict construction of a will was not warranted in the absence of
any indication of bad faith, fraud, or substitution in the execution of the Deed of Donation Mortis Causa. He argues
that the CA ignored the Acknowledgment portion of the deed of donation, which contains the "import and purpose" of
the attestation clause required in the execution of wills. The Acknowledgment reads:

BEFORE ME, Notary Public, this 7th day of September 1985 at Talisay, Cebu, personally appeared VICENTE S.
Echavez with Res. Cert. No. 16866094 issued on April 10, 1985 at [sic] Talisay, Cebu known to me to be the same
person who executed the foregoing instrument of Deed of Donartion Mortis Causa before the Notary Public and in the
presence of the foregoing three (3) witnesses who signed this instrument before and in the presence of each other
and of the Notary Public and all of them acknowledge to me that the same is their voluntary act and deed. [Emphasis
in the original.]

THE COURT’S RULING

 SECOND DIVISION
G.R. No. 189984 November 12, 2012
IN THE MATTER OF THE PETITION FOR THE PROBATE OF THE LAST WILL AND TESTAMENT OF ENRIQUE
S. LOPEZ RICHARD B. LOPEZ, Petitioner,
vs.
DIANA JEANNE LOPEZ, MARYBETH DE LEON and VICTORIA L. TUAZON, Respondents.
RESOLUTION
PERLAS-BERNABE, J.:
This Petition for Review on Certiorari assails the March 30, 2009 Decision1 and October 22, 2009 Resolution2 of the
Court of Appeals (CA) in CA-G.R. CV No. 87064 which affirmed the August 26, 2005 Decision3 of the Regional Trial
Court of Manila, Branch 42 (RTC), in SP. Proc. No. 99-95225 disallowing the probate of the Last Will and Testament
of Enrique S. Lopez.
The Factual Antecedents
On June 21, 1999, Enrique S. Lopez (Enrique) died leaving his wife, Wendy B. Lopez, and their four legitimate
children, namely, petitioner Richard B. Lopez (Richard) and the respondents Diana Jeanne Lopez (Diana), Marybeth
de Leon (Marybeth) and Victoria L. Tuazon (Victoria) as compulsory heirs. Before Enrique’s death, he executed a
Last Will and Testament4 on August 10, 1996 and constituted Richard as his executor and administrator.
On September 27, 1999, Richard filed a petition for the probate of his father's Last Will and Testament before the
RTC of Manila with prayer for the issuance of letters testamentary in his favor. Marybeth opposed the petition
contending that the purported last will and testament was not executed and attested as required by law, and that it
was procured by undue and improper pressure and influence on the part of Richard. The said opposition was also
adopted by Victoria.
After submitting proofs of compliance with jurisdictional requirements, Richard presented the attesting witnesses,
namely: Reynaldo Maneja; Romulo Monteiro; Ana Maria Lourdes Manalo (Manalo); and the notary public who
notarized the will, Atty. Perfecto Nolasco (Atty. Nolasco). The instrumental witnesses testified that after the late
Enrique read and signed the will on each and every page, they also read and signed the same in the latter's presence
and of one another. Photographs of the incident were taken and presented during trial. Manalo further testified that
she was the one who prepared the drafts and revisions from Enrique before the final copy of the will was made.
Likewise, Atty. Nolasco claimed that Enrique had been his client for more than 20 years. Prior to August 10, 1996, the
latter consulted him in the preparation of the subject will and furnished him the list of his properties for distribution
among his children. He prepared the will in accordance with Enrique's instruction and that before the latter and the
attesting witnesses signed it in the presence of one another, he translated the will which was written in English to
Filipino and added that Enrique was in good health and of sound mind at that time.
On the other hand, the oppositors presented its lone witness, Gregorio B. Paraon (Paraon), Officer-in-Charge of the
Notarial Section, Office of the Clerk of Court, RTC, Manila. His testimony centered mainly on their findings that Atty.
Nolasco was not a notary public for the City of Manila in 1996, which on cross examination was clarified after Paraon
discovered that Atty. Nolasco was commissioned as such for the years 1994 to 1997.
Ruling of the RTC
In the Decision dated August 26, 2005,5 the RTC disallowed the probate of the will for failure to comply with Article
805 of the Civil Code which requires a statement in the attestation clause of the number of pages used upon which
the will is written. It held that while Article 809 of the same Code requires mere substantial compliance of the form laid
down in Article 805 thereof, the rule only applies if the number of pages is reflected somewhere else in the will with no
evidence aliunde or extrinsic evidence required. While the acknowledgment portion stated that the will consists of 7
pages including the page on which the ratification and acknowledgment are written, the RTC observed that it has 8
pages including the acknowledgment portion. As such, it disallowed the will for not having been executed and attested
in accordance with law.
Aggrieved, Richard filed a Notice of Appeal which the RTC granted in the Order dated October 26, 2005.6
Ruling of the Court of Appeals
On March 30, 2009,7 the CA issued the assailed decision dismissing the appeal. It held that the RTC erroneously
granted Richard's appeal as the Rules of Court is explicit that appeals in special proceedings, as in this case, must be
made through a record on appeal. Nevertheless, even on the merits, the CA found no valid reason to deviate from the
findings of the RTC that the failure to state the number of pages of the will in the attestation clause was fatal. It noted
that while Article 809 of the Civil Code sanctions mere substantial compliance with the formal requirements set forth in
Article 805 thereof, there was a total omission of such fact in the attestation clause. Moreover, while the
acknowledgment of the will made mention of "7 pages including the page on which the ratification and
acknowledgment are written," the will had actually 8 pages including the acknowledgment portion thus, necessitating
the presentation of evidence aliunde to explain the discrepancy. Richard's motion for reconsideration from the
decision was likewise denied in the second assailed Resolution8 dated October 22, 2009.
Hence, the instant petition assailing the propriety of the CA's decision.
Ruling of the Court
The petition lacks merit.
The provisions of the Civil Code on Forms of Wills, particularly, Articles 805 and 809 of the Civil Code provide:
ART. 805. Every will, other than a holographic will, must be subscribed at the end thereof by the testator himself or by
the testator's name written by some other person in his presence, and by his express direction, and attested and
subscribed by three or more credible witnesses in the presence of the testator and of one another.
The testator or the person requested by him to write his name and the instrumental witnesses of the will, shall also
sign, as aforesaid, each and every page thereof, except the last, on the left margin, and all the pages shall be
numbered correlatively in letters placed on the upper part of each page.
The attestation shall state the number of pages used upon which the will is written, and the fact that the testator
signed the will and every page thereof, or caused some other person to write his name, under his express direction, in
the presence of the instrumental witnesses, and that the latter witnessed and signed the will and all the pages thereof
in the presence of the testator and of one another.
If the attestation clause is in a language not known to the witnesses, it shall be interpreted to
them.1âwphi1 (underscoring supplied)
ART. 809. In the absence of bad faith, forgery, or fraud, or undue and improper pressure and influence, defects and
imperfections in the form of attestation or in the language used therein shall not render the will invalid if it is proved
that the will was in fact executed and attested in substantial compliance with all the requirements of Article 805.
The law is clear that the attestation must state the number of pages used upon which the will is written. The purpose
of the law is to safeguard against possible interpolation or omission of one or some of its pages and prevent any
increase or decrease in the pages.9

While Article 809 allows substantial compliance for defects in the form of the attestation clause, Richard likewise
failed in this respect. The statement in the Acknowledgment portion of the subject last will and testament that it
"consists of 7 pages including the page on which the ratification and acknowledgment are written"10 cannot be
deemed substantial compliance. The will actually consists of 8 pages including its acknowledgment which
discrepancy cannot be explained by mere examination of the will itself but through the presentation of evidence
aliund.11 On this score is the comment of Justice J.B.L. Reyes regarding the application of Article 809, to wit:

x x x The rule must be limited to disregarding those defects that can be supplied by an examination of the will itself:
whether all the pages are consecutively numbered; whether the signatures appear in each and every page; whether
the subscribing witnesses are three or the will was notarized. All these are facts that the will itself can reveal, and
defects or even omissions concerning them in the attestation clause can be safely disregarded. But the total number
of pages, and whether all persons required to sign did so in the presence of each other must substantially appear in
the attestation clause, being the only check against perjury in the probate proceedings.12 (Emphasis supplied)

Hence, the CA properly sustained the disallowance of the will. Moreover, it correctly ruled that Richard pursued the
wrong mode of appeal as Section 2(a), Rule 41 of the Rules of Court explicitly provides that in special proceedings,
as in this case, the appeal shall be made by record on appeal.

WHEREFORE, premises considered, the petition is DENIED.

SO ORDERED.
 EN BANC
G.R. No. L-18979 June 30, 1964
IN THE MATTER OF THE TESTATE ESTATE OF THE LATE JOSEFA VILLACORTE.
CELSO ICASIANO, petitioner-appellee,
vs.
NATIVIDAD ICASIANO and ENRIQUE ICASIANO, oppositors-appellants.
Jose W. Diokno for petitioner-appellee.
Rosendo J. Tansinin for oppositor-appellant Natividad Icasiano.
Jaime R. Nuevas for oppositor-appellant Enrique Icasiano.
REYES, J.B.L., J.:
Appeal from an order of the Court of First Instance of Manila admitting to probate the document and its duplicate,
marked as Exhibits "A" and "A-1", as the true last will and testament of Josefa Villacorte, deceased, and appointing as
executor Celso Icasiano, the person named therein as such.
This special proceeding was begun on October 2, 1958 by a petition for the allowance and admission to probate of
the original, Exhibit "A" as the alleged will of Josefa Villacorte, deceased, and for the appointment of petitioner Celso
Icasiano as executor thereof.
The court set the proving of the alleged will for November 8, 1958, and caused notice thereof to be published for three
(3) successive weeks, previous to the time appointed, in the newspaper "Manila chronicle", and also caused personal
service of copies thereof upon the known heirs.
On October 31, 1958, Natividad Icasiano, a daughter of the testatrix, filed her opposition; and on November 10, 1958,
she petitioned to have herself appointed as a special administrator, to which proponent objected. Hence, on
November 18, 1958, the court issued an order appointing the Philippine Trust Company as special
administrator. 1äwphï1.ñët
On February 18, 1959, Enrique Icasiano, a son of the testatrix, also filed a manifestation adopting as his own
Natividad's opposition to the probate of the alleged will.
On March 19, 1959, the petitioner proponent commenced the introduction of his evidence; but on June 1, 1959, he
filed a motion for the admission of an amended and supplemental petition, alleging that the decedent left a will
executed in duplicate with all the legal requirements, and that he was, on that date, submitting the signed duplicate
(Exhibit "A-1"), which he allegedly found only on or about May 26, 1959. On June 17, 1959, oppositors Natividad
Icasiano de Gomez and Enrique Icasiano filed their joint opposition to the admission of the amended and
supplemental petition, but by order of July 20, 1959, the court admitted said petition, and on July 30, 1959, oppositor
Natividad Icasiano filed her amended opposition. Thereafter, the parties presented their respective evidence, and
after several hearings the court issued the order admitting the will and its duplicate to probate. From this order, the
oppositors appealed directly to this Court, the amount involved being over P200,000.00, on the ground that the same
is contrary to law and the evidence.
The evidence presented for the petitioner is to the effect that Josefa Villacorte died in the City of Manila on September
12, 1958; that on June 2, 1956, the late Josefa Villacorte executed a last will and testament in duplicate at the house
of her daughter Mrs. Felisa Icasiano at Pedro Guevara Street, Manila, published before and attested by three
instrumental witnesses, namely: attorneys Justo P. Torres, Jr. and Jose V. Natividad, and Mr. Vinicio B. Diy; that the
will was acknowledged by the testatrix and by the said three instrumental witnesses on the same date before attorney
Jose Oyengco Ong, Notary Public in and for the City of Manila; and that the will was actually prepared by attorney
Fermin Samson, who was also present during the execution and signing of the decedent's last will and testament,
together with former Governor Emilio Rustia of Bulacan, Judge Ramon Icasiano and a little girl. Of the said three
instrumental witnesses to the execution of the decedent's last will and testament, attorneys Torres and Natividad were
in the Philippines at the time of the hearing, and both testified as to the due execution and authenticity of the said will.
So did the Notary Public before whom the will was acknowledged by the testatrix and attesting witnesses, and also
attorneys Fermin Samson, who actually prepared the document. The latter also testified upon cross examination that
he prepared one original and two copies of Josefa Villacorte last will and testament at his house in Baliuag, Bulacan,
but he brought only one original and one signed copy to Manila, retaining one unsigned copy in Bulacan.
The records show that the original of the will, which was surrendered simultaneously with the filing of the petition and
marked as Exhibit "A" consists of five pages, and while signed at the end and in every page, it does not contain the
signature of one of the attesting witnesses, Atty. Jose V. Natividad, on page three (3) thereof; but the duplicate copy
attached to the amended and supplemental petition and marked as Exhibit "A-1" is signed by the testatrix and her
three attesting witnesses in each and every page.
The testimony presented by the proponents of the will tends to show that the original of the will and its duplicate were
subscribed at the end and on the left margin of each and every page thereof by the testatrix herself and attested and
subscribed by the three mentioned witnesses in the testatrix's presence and in that of one another as witnesses
(except for the missing signature of attorney Natividad on page three (3) of the original); that pages of the original and
duplicate of said will were duly numbered; that the attestation clause thereof contains all the facts required by law to
be recited therein and is signed by the aforesaid attesting witnesses; that the will is written in the language known to
and spoken by the testatrix that the attestation clause is in a language also known to and spoken by the witnesses;
that the will was executed on one single occasion in duplicate copies; and that both the original and the duplicate
copies were duly acknowledged before Notary Public Jose Oyengco of Manila on the same date June 2, 1956.
Witness Natividad who testified on his failure to sign page three (3) of the original, admits that he may have lifted two
pages instead of one when he signed the same, but affirmed that page three (3) was signed in his presence.
Oppositors-appellants in turn introduced expert testimony to the effect that the signatures of the testatrix in the
duplicate (Exhibit "A-1") are not genuine nor were they written or affixed on the same occasion as the original, and
further aver that granting that the documents were genuine, they were executed through mistake and with undue
influence and pressure because the testatrix was deceived into adopting as her last will and testament the wishes of
those who will stand to benefit from the provisions of the will, as may be inferred from the facts and circumstances
surrounding the execution of the will and the provisions and dispositions thereof, whereby proponents-appellees stand
to profit from properties held by them as attorneys-in-fact of the deceased and not enumerated or mentioned therein,
while oppositors-appellants are enjoined not to look for other properties not mentioned in the will, and not to oppose
the probate of it, on penalty of forfeiting their share in the portion of free disposal.
We have examined the record and are satisfied, as the trial court was, that the testatrix signed both original and
duplicate copies (Exhibits "A" and "A-1", respectively) of the will spontaneously, on the same in the presence of the
three attesting witnesses, the notary public who acknowledged the will; and Atty. Samson, who actually prepared the
documents; that the will and its duplicate were executed in Tagalog, a language known to and spoken by both the
testator and the witnesses, and read to and by the testatrix and Atty. Fermin Samson, together before they were
actually signed; that the attestation clause is also in a language known to and spoken by the testatrix and the
witnesses. The opinion of expert for oppositors, Mr. Felipe Logan, that the signatures of the testatrix appearing in the
duplicate original were not written by the same had which wrote the signatures in the original will leaves us
unconvinced, not merely because it is directly contradicted by expert Martin Ramos for the proponents, but principally
because of the paucity of the standards used by him to support the conclusion that the differences between the
standard and questioned signatures are beyond the writer's range of normal scriptural variation. The expert has, in
fact, used as standards only three other signatures of the testatrix besides those affixed to the original of the
testament (Exh. A); and we feel that with so few standards the expert's opinion and the signatures in the duplicate
could not be those of the testatrix becomes extremely hazardous. This is particularly so since the comparison charts
Nos. 3 and 4 fail to show convincingly that the are radical differences that would justify the charge of forgery, taking
into account the advanced age of the testatrix, the evident variability of her signatures, and the effect of writing
fatigue, the duplicate being signed right the original. These, factors were not discussed by the expert.
Similarly, the alleged slight variance in blueness of the ink in the admitted and questioned signatures does not appear identical); and appellants were duly notified of the proposed amendment. It is nowhere proved or claimed that the
reliable, considering the standard and challenged writings were affixed to different kinds of paper, with different amendment deprived the appellants of any substantial right, and we see no error in admitting the amended petition.
surfaces and reflecting power. On the whole, therefore, we do not find the testimony of the oppositor's expert
sufficient to overcome that of the notary and the two instrumental witnesses, Torres and Natividad (Dr. Diy being in
IN VIEW OF THE FOREGOING, the decision appealed from is affirmed, with costs against appellants.
the United States during the trial, did not testify).

Nor do we find adequate evidence of fraud or undue influence. The fact that some heirs are more favored than others
is proof of neither (see In re Butalid, 10 Phil. 27; Bugnao vs. Ubag, 14 Phil. 163; Pecson vs. Coronal, 45 Phil. 216).
Diversity of apportionment is the usual reason for making a testament; otherwise, the decedent might as well die
intestate. The testamentary dispositions that the heirs should not inquire into other property and that they should
respect the distribution made in the will, under penalty of forfeiture of their shares in the free part do not suffice to
prove fraud or undue influence. They appear motivated by the desire to prevent prolonged litigation which, as shown
by ordinary experience, often results in a sizeable portion of the estate being diverted into the hands of non-heirs and
speculators. Whether these clauses are valid or not is a matter to be litigated on another occassion. It is also well to
note that, as remarked by the Court of Appeals in Sideco vs. Sideco, 45 Off. Gaz. 168, fraud and undue influence are
mutually repugnant and exclude each other; their joining as grounds for opposing probate shows absence of definite
evidence against the validity of the will.

On the question of law, we hold that the inadvertent failure of one witness to affix his signature to one page of a
testament, due to the simultaneous lifting of two pages in the course of signing, is not per se sufficient to justify denial
of probate. Impossibility of substitution of this page is assured not only the fact that the testatrix and two other
witnesses did sign the defective page, but also by its bearing the coincident imprint of the seal of the notary public
before whom the testament was ratified by testatrix and all three witnesses. The law should not be so strictly and
literally interpreted as to penalize the testatrix on account of the inadvertence of a single witness over whose conduct
she had no control, where the purpose of the law to guarantee the identity of the testament and its component pages
is sufficiently attained, no intentional or deliberate deviation existed, and the evidence on record attests to the full
observance of the statutory requisites. Otherwise, as stated in Vda. de Gil. vs. Murciano, 49 Off. Gaz. 1459, at 1479
(decision on reconsideration) "witnesses may sabotage the will by muddling or bungling it or the attestation clause".

That the failure of witness Natividad to sign page three (3) was entirely through pure oversight is shown by his own
testimony as well as by the duplicate copy of the will, which bears a complete set of signatures in every page. The
text of the attestation clause and the acknowledgment before the Notary Public likewise evidence that no one was
aware of the defect at the time.

This would not be the first time that this Court departs from a strict and literal application of the statutory requirements,
where the purposes of the law are otherwise satisfied. Thus, despite the literal tenor of the law, this Court has held
that a testament, with the only page signed at its foot by testator and witnesses, but not in the left margin, could
nevertheless be probated (Abangan vs. Abangan, 41 Phil. 476); and that despite the requirement for the correlative
lettering of the pages of a will, the failure to make the first page either by letters or numbers is not a fatal defect
(Lopez vs. Liboro, 81 Phil. 429). These precedents exemplify the Court's policy to require satisfaction of the legal
requirements in order to guard against fraud and bid faith but without undue or unnecessary curtailment of the
testamentary privilege.

The appellants also argue that since the original of the will is in existence and available, the duplicate (Exh. A-1) is not
entitled to probate. Since they opposed probate of original because it lacked one signature in its third page, it is easily
discerned that oppositors-appellants run here into a dilemma; if the original is defective and invalid, then in law there
is no other will but the duly signed carbon duplicate (Exh. A-1), and the same is probatable. If the original is valid and
can be probated, then the objection to the signed duplicate need not be considered, being superfluous and irrelevant.
At any rate, said duplicate, Exhibit A-1, serves to prove that the omission of one signature in the third page of the
original testament was inadvertent and not intentional.

That the carbon duplicate, Exhibit A-1, was produced and admitted without a new publication does not affect the
jurisdiction of the probate court, already conferred by the original publication of the petition for probate. The amended
petition did not substantially alter the one first filed, but merely supplemented it by disclosing the existence of the
duplicate, and no showing is made that new interests were involved (the contents of Exhibit A and A-1 are admittedly
 FIRST DIVISION
G.R. No. L-32213 November 26, 1973
AGAPITA N. CRUZ, petitioner,
vs.
HON. JUDGE GUILLERMO P. VILLASOR, Presiding Judge of Branch I, Court of First Instance of Cebu, and
MANUEL B. LUGAY, respondents.
Paul G. Gorrez for petitioner.
Mario D. Ortiz for respondent Manuel B. Lugay.
ESGUERRA, J.:
Petition to review on certiorari the judgment of the Court First Instance of Cebu allowing the probate of the last will a
testament of the late Valente Z. Cruz. Petitioner-appellant Agapita N. Cruz, the surviving spouse of the said decease
opposed the allowance of the will (Exhibit "E"), alleging the will was executed through fraud, deceit, misrepresentation
and undue influence; that the said instrument was execute without the testator having been fully informed of the
content thereof, particularly as to what properties he was disposing and that the supposed last will and testament was
not executed in accordance with law. Notwithstanding her objection, the Court allowed the probate of the said last will
and testament Hence this appeal by certiorari which was given due course.
The only question presented for determination, on which the decision of the case hinges, is whether the supposed last
will and testament of Valente Z. Cruz (Exhibit "E") was executed in accordance with law, particularly Articles 805 and
806 of the new Civil Code, the first requiring at least three credible witnesses to attest and subscribe to the will, and
the second requiring the testator and the witnesses to acknowledge the will before a notary public.
Of the three instrumental witnesses thereto, namely Deogracias T. Jamaloas Jr., Dr. Francisco 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. As the third witness is the notary public
himself, petitioner argues that the result is that only two witnesses appeared before the notary public to acknowledge
the will. On the other hand, private respondent-appellee, Manuel B. Lugay, who is the supposed executor of the will,
following the reasoning of the trial court, maintains that there is substantial compliance with the legal requirement of
having at least three attesting witnesses even if the notary public acted as one of them, bolstering up his stand with
57 American Jurisprudence, p. 227 which, insofar as pertinent, reads as follows:
It is said that there are, practical reasons for upholding a will as against the purely technical
reason that one of the witnesses required by law signed as certifying to an acknowledgment
of the testator's signature under oath rather than as attesting the execution of the instrument.
After weighing the merits of the conflicting claims of the parties, We are inclined to sustain that of the appellant that
the last will and testament in question was not executed in accordance with law. The notary public before whom the
will was acknowledged cannot be considered as the third instrumental witness since he cannot acknowledge before
himself his having signed the will. To acknowledge before means to avow (Javellana v. Ledesma, 97 Phil. 258, 262;
Castro v. Castro, 100 Phil. 239, 247); to own as genuine, to assent, to admit; and "before" means in front or preceding
in space or ahead of. (The New Webster Encyclopedic Dictionary of the English Language, p. 72; Funk & Wagnalls
New Standard Dictionary of the English Language, p. 252; Webster's New International Dictionary 2d. p. 245.)
Consequently, if the third witness were the notary public himself, he would have to avow assent, or admit his having
signed the will in front of himself. This cannot be done because he cannot split his personality into two so that one will
appear before the other to acknowledge his participation in the making of the will. To permit such a situation to obtain
would be sanctioning a sheer absurdity.
Furthermore, the function of a notary public is, among others, to guard against any illegal or immoral arrangement
Balinon v. De Leon, 50 0. G. 583.) That function would defeated if the notary public were one of the attesting
instrumental witnesses. For them he would be interested sustaining the validity of the will as it directly involves him
and the validity of his own act. It would place him in inconsistent position and the very purpose of acknowledgment,
which is to minimize fraud (Report of Code Commission p. 106-107), would be thwarted.
Admittedly, there are American precedents holding that notary public may, in addition, act as a witness to the
executive of the document he has notarized. (Mahilum v. Court Appeals, 64 0. G. 4017; 17 SCRA 482; Sawyer v.
Cox, 43 Ill. 130). There are others holding that his signing merely as notary in a will nonetheless makes him a witness
thereon (Ferguson v. Ferguson, 47 S. E. 2d. 346; In Re Douglas Will, N. Y. S. 2d. 641; Ragsdal v. Hill, 269 S. W. 2d.
911, Tyson Utterback, 122 So. 496; In Re Baybee's Estate 160 N. 900; W. Merill v. Boal, 132 A. 721; See
also Trenwith v. Smallwood, 15 So. 1030). But these authorities do not serve the purpose of the law in this jurisdiction
or are not decisive of the issue herein because the notaries public and witnesses referred to aforecited cases merely
acted as instrumental, subscribing attesting witnesses, and not as acknowledging witnesses. He the notary public
acted not only as attesting witness but also acknowledging witness, a situation not envisaged by Article 805 of the
Civil Code which reads:
ART. 806. Every will must be acknowledged before a notary public by the testator and the
witnesses. The notary public shall not be required to retain a copy of the will or file another
with the office of the Clerk of Court. [Emphasis supplied]
To allow the notary public to act as third witness, or one the attesting and acknowledging witnesses, would have the
effect of having only two attesting witnesses to the will which would be in contravention of the provisions of Article 80
be requiring at least three credible witnesses to act as such and of Article 806 which requires that the testator and the
required number of witnesses must appear before the notary public to acknowledge the will. The result would be, as
has been said, that only two witnesses appeared before the notary public for or that purpose. In the circumstances,
the law would not be duly in observed.
FOR ALL THE FOREGOING, the judgment appealed from is hereby reversed and the probate of the last will and
testament of Valente Z. Cruz (Exhibit "E") is declared not valid and hereby set aside.
 SECOND DIVISION What the probate court should have done was to require the petitioner or proponent to affix the requisite thirty-centavo
documentary stamp to the notarial acknowledgment of the will which is the taxable portion of that document.
G.R. No. L-51546 January 28, 1980
That procedure may be implied from the provision of section 238 that the non-admissibility of the document, which
does not bear the requisite documentary stamp, subsists only "until the requisite stamp or stamps shall have been
JOSE ANTONIO GABUCAN, petitioner-appellant,
affixed thereto and cancelled."
vs.
HON. JUDGE LUIS D. MANTA JOSEFA G. VDA. DE YSALINA and NELDA G. ENCLONAR, respondents-
appellees. Thus, it was held that the documentary stamp may be affixed at the time the taxable document is presented in
evidence (Del Castillo vs. Madrilena 49 Phil. 749). If the promissory note does not bear a documentary stamp, the
court should have allowed plaintiff's tender of a stamp to supply the deficiency. (Rodriguez vs. Martinez, 5 Phil. 67,
Ignacio A. Calingin for appellant.
71. Note the holding in Azarraga vs. Rodriguez, 9 Phil. 637, that the lack of the documentary stamp on a document
does not invalidate such document. See Cia. General de Tabacos vs. Jeanjaquet 12 Phil. 195, 201-2 and Delgado
and Figueroa vs. Amenabar 16 Phil. 403, 405-6.)

AQUINO, J.: WHEREFORE, the lower court's dismissal of the petition for probate is reversed and set aside. It is directed to decide
the case on the merits in the light of the parties' evidence. No costs.
This case is about the dismissal of a petition for the probate of a notarial will on the ground that it does not bear a
thirty-centavo documentary stamp. SO ORDERED.

The Court of First Instance of Camiguin in its "decision" of December 28, 1977 in Special Proceeding No. 41 for the
probate of the will of the late Rogaciano Gabucan, dismissed the proceeding (erroneously characterizes as an
"action")

The proceeding was dismissed because the requisite documentary stamp was not affixed to the notarial
acknowledgment in the will and, hence, according to respondent Judge, it was not admissible in evidence, citing
section 238 of the Tax Code, now section 250 of the 1977 Tax Code, which reads:

SEC. 238. Effect of failure to stamp taxable document. — An instrument, document, or paper
which is required by law to be stamped and which has been signed, issued, accepted, or
transferred without being duly stamped, shall not be recorded, nor shall it or any copy thereof
or any record of transfer of the same be admitted or used in evidence in any court until the
requisite stamp or stamps shall have been affixed thereto and cancelled.

No notary public or other officer authorized to administer oaths shall add his jurat or
acknowledgment to any document subject to documentary stamp tax unless the proper
documentary stamps are affixed thereto and cancelled.

The probate court assumed that the notarial acknowledgment of the said will is subject to the thirty-centavo
documentary stamp tax fixed in section 225 of the Tax Code, now section 237 of the 1977 Tax Code.

Respondent Judge refused to reconsider the dismissal in spite of petitioner's manifestation that he had already
attached the documentary stamp to the original of the will. (See Mahilum vs. Court of Appeals, 64 O. G. 4017, 17
SCRA 482, 486.)

The case was brought to this Court by means of a petition for mandamus to compel the lower court to allow
petitioner's appeal from its decision. In this Court's resolution of January 21, 1980 the petition for mandamus was
treated in the interest of substantial and speedy justice as an appeal under Republic Act No. 5440 as well as a special
civil action of certiorari under Rule 65 of the Rules of Court.

We hold that the lower court manifestly erred in declaring that, because no documentary stamp was affixed to the will,
there was "no will and testament to probate" and, consequently, the alleged "action must of necessity be dismissed".
 EN BANC
G.R. No. L-7179 June 30, 1955
Testate Estate of the Late Apolinaria Ledesma. FELICIDAD JAVELLANA, petitioner-appellee,
vs.
DOÑA MATEA LEDESMA, oppositor-appellant.
Fulgencio Vega and Felix D. Bacabac for appellant.
Benjamin H. Tirot for appellee.
REYES, J.B.L., J.:
By order of July 23, 1953, the Court of First Instance of Iloilo admitted to probate the documents in the Visayan
dialect, marked Exhibits D and E, as the testament and codicil duly executed by the deceased Da. Apolinaria
Ledesma Vda. de Javellana, on March 30, 1950, and May 29, 1952, respectively, with Ramon Tabiana, Gloria
Montinola de Tabiana and Vicente Yap as witnesses. The contestant, Da. Matea Ledesma, sister and nearest
surviving relative of said deceased, appealed from the decision, insisting that the said exhibits were not executed in
conformity with law. The appeal was made directly to this Court because the value of the properties involved
exceeded two hundred thousand pesos.
Originally the opposition to the probate also charged that the testatrix lacked testamentary capacity and that the
dispositions were procured through undue influence. These grounds were abandoned at the hearing in the court
below, where the issue was concentrated into three specific questions: (1) whether the testament of 1950 was
executed by the testatrix in the presence of the instrumental witnesses; (2) whether the acknowledgment clause was
signed and the notarial seal affixed by the notary without the presence of the testatrix and the witnesses; and (3) if so,
whether the codicil was thereby rendered invalid and ineffective. These questions are the same ones presented to us
for resolution.
The contestant argues that the Court below erred in refusing credence to her witnesses Maria Paderogao and Vidal
Allado, cook and driver, respectively, of the deceased Apolinaria Ledesma. Both testified that on March 30, 1950, they
saw and heard Vicente Yap (one of the witnesses to the will) inform the deceased that he had brought the
"testamento" and urge her to go to attorney Tabiana's office to sign it; that Da. Apolinaria manifested that she could
not go, because she was not feeling well; and that upon Yap's insistence that the will had to be signed in the
attorney's office and not elsewhere, the deceased took the paper and signed it in the presence of Yap alone, and
returned it with the statement that no one would question it because the property involved was exclusively hers.
Our examination of the testimony on record discloses no grounds for reversing the trial Court's rejection of the
improbable story of the witnesses. It is squarely contradicted by the concordant testimony of the instrumental
witnesses, Vicente Yap, Atty. Ramon Tabiana, and his wife Gloria Montinola, who asserted under oath that the
testament was executed by testatrix and witnesses in the presence of each other, at the house of the decedent on
General Hughes St., Iloilo City, on March 30, 1950. And it is highly unlikely, and contrary to usage, that either Tabiana
or Yap should have insisted that Da. Apolinaria, an infirm lady then over 80 years old, should leave her own house in
order to execute her will, when all three witnesses could have easily repaired thither for the purpose. Moreover, the
cross-examination has revealed fatal flaws in the testimony of Contestant's witnesses. Both claim to have heard the
word "testamento" for the first time when Yap used it; and they claimed ability to recall that word four years later,
despite the fact that the term meant nothing to either. It is well known that what is to be remembered must first be
rationally conceived and assimilated (II Moore on Facts, p. 884). Likewise, Maria Paderogao was positive that Yap
brought the will, and that the deceased alone signed it, precisely on March 30, 1950; but she could remember no
other date, nor give satisfactory explanation why that particular day stuck in her mind. Worse still, Allado claimed to
have heard what allegedly transpired between Yap and Da. Apolinaria from the kitchen of the house, that was later
proved to have been separated from the deceased's quarters, and standing at a much lower level, so that
conversations in the main building could not be distinctly heard from the kitchen. Later, on redirect examination,
Allado sought to cure his testimony by claiming that he was upstairs in a room where the servants used to eat when
he heard Yap converse with his mistress; but this correction is unavailing, since it was plainly induced by two highly
leading questions from contestant's counsel that had been previously ruled out by the trial Court. Besides, the
contradiction is hardly consonant with this witness' 18 years of service to the deceased.
Upon the other hand, the discrepancies in the testimony of the instrumental witnesses urged upon us by the
contestant-appellant, concerning the presence or absence of Aurelio Montinola at the signing of the testament or of
the codicil, and the identity of the person who inserted the date therein, are not material and are largely imaginary,
since the witness Mrs. Tabiana confessed inability to remember all the details of the transaction. Neither are we
impressed by the argument that the use of some Spanish terms in the codicil and testament (like legado, partes
iguales, plena propiedad) is proof that its contents were not understood by the testatrix, it appearing in evidence that
those terms are of common use even in the vernacular, and that the deceased was a woman of wide business
interests.
The most important variation noted by the contestants concerns that signing of the certificate of acknowledgment (in
Spanish) appended to the Codicil in Visayan, Exhibit E. Unlike the testament, this codicil was executed after the
enactment of the new Civil Code, and, therefore, had to be acknowledged before a notary public (Art. 806). Now, the
instrumental witnesses (who happen to be the same ones who attested the will of 1950) asserted that after the codicil
had been signed by the testatrix and the witnesses at the San Pablo Hospital, the same was signed and sealed by
notary public Gimotea on the same occasion. On the other hand, Gimotea affirmed that he did not do so, but brought
the codicil to his office, and signed and sealed it there. The variance does not necessarily imply conscious perversion
of truth on the part of the witnesses, but appears rather due to a well-established phenomenon, the tendency of the
mind, in recalling past events, to substitute the usual and habitual for what differs slightly from it (II Moore on Facts, p.
878; The Ellen McGovern, 27 Fed. 868, 870).
At any rate, as observed by the Court below, whether or not the notary signed the certification of acknowledgment in
the presence of the testatrix and the witnesses, does not affect the validity of the codicil. Unlike the Code of 1889 (Art.
699), the new Civil Code does not require that the signing of the testator, witnesses and notary should be
accomplished in one single act. A comparison of Articles 805 and 806 of the new Civil Code reveals that while testator
and witnesses sign in the presence of each other, all that is thereafter required is that "every will must be
acknowledged before a notary public by the testator and the witnesses" (Art. 806); i.e., that the latter should avow to
the certifying officer the authenticity of their signatures and the voluntariness of their actions in executing the
testamentary disposition. This was done in the case before us. The subsequent signing and sealing by the notary of
his certification that the testament was duly acknowledged by the participants therein is no part of the
acknowledgment itself nor of the testamentary act. Hence their separate execution out of the presence of the testatrix
and her witnesses can not be said to violate the rule that testaments should be completed without interruption
(Andalis vs. Pulgueras, 59 Phil. 643), or, as the Roman maxim puts it, "uno codem die ac tempore in eadem loco",
and no reversible error was committed by the Court in so holding. It is noteworthy that Article 806 of the new Civil
Code does not contain words requiring that the testator and the witnesses should acknowledge the testament on the
same day or occasion that it was executed.
The decision admitting the will to probate is affirmed, with costs against appellant.
 FIRST DIVISION
G.R. No. L-37453 May 25, 1979
RIZALINA GABRIEL GONZALES, petitioner,
vs.
HONORABLE COURT OF APPEALS and LUTGARDA SANTIAGO, respondents.
Francisco D. Rilloraza, Jr. for petitioners.
Angel A. Sison for private respondent.
GUERRERO, J.:
This is a petition for review of the decision of the Court of Appeals, First Division,1 promulgated on May 4, 1973 in CA
G.R. No. 36523-R which reversed the decision of the Court of First Instance of Rizal dated December 15, 1964 and
allowed the probate of the last will and testament of the deceased Isabel Gabriel. *
It appears that on June 24, 1961, herein private respondent Lutgarda Santiago filed a petition with the Court of First
Instance of Rizal docketed as Special Proceedings No. 3617, for the probate of a will alleged to have been executed
by the deceased Isabel Gabriel and designating therein petitioner as the principal beneficiary and executrix.
There is no dispute in the records that the late Isabel Andres Gabriel died as a widow and without issue in the
municipality of Navotas, province of Rizal her place of residence, on June 7, 1961 at the age of eighty-five (85),
having been born in 1876. It is likewise not controverted that herein private respondent Lutgarda Santiago and
petitioner Rizalina Gabriel Gonzales are nieces of the deceased, and that private respondent, with her husband and
children, lived with the deceased at the latters residence prior an- d up to the time of her death.
The will submitted for probate, Exhibit "F", which is typewritten and in Tagalog, appears to have been executed in
Manila on the 15th day of April, 1961, or barely two (2) months prior to the death of Isabel Gabriel. It consists of five
(5) pages, including the pages whereon the attestation clause and the acknowledgment of the notary public were
written. The signatures of the deceased Isabel Gabriel appear at the end of the will on page four and at the left margin
of all the pages. The attestation clause, which is found on page four, reads as follows:
PATUNAY NG MGA SAKSI
Kaming mga nakalagdang mga saksi o testigo na ang aming mga tinitirahan ay nakasulat sa
gawing kanan at kahilira ng aming mga pangalan sa ibaba nito, ay pagpapatutuo na
ipinakilala ipinaalam at ipinahayag sa amin ni Isabel Gabriel na ang kasulatang ito na
binubuo ng Limang Dahon (Five Pages) pati na ang dahong ito, na siya niyang
TESTAMENTO AT HULING HABILIN, ngayong ika 15 ng Abril, 1961, ay nilagdaan ng
nasabing testadora na si Isabel Gabriel ang nasabing testamento sa ibaba o ilalim ng
kasulatan na nasa ika apat na dahon (page four) at nasa itaas ng patunay naming ito, at sa
kaliwang panig ng lahat at bawat dahon (and on the left hand margin of each and every
page), sa harap ng lahat at bawat isa sa amin, at kami namang mga saksi ay lumagda sa
harap ng nasabing testadora, at sa harap ng lahat at bawat isa sa amin, sa ilalim ng patunay
ng mga saksi at sa kaliwang panig ng lahat at bawa't dahon ng testamentong ito.
At the bottom thereof, under the heading "Pangalan", are written the signatures of Matilde D. Orobia, Celso D.
Gimpaya and Maria R. Gimpaya, and opposite the same, under the heading "Tirahan", are their respective places of
residence, 961 Highway 54, Philamlife, for Miss Orobia, and 12 Dagala St., Navotas, Rizal, for the two Gimpayas.
Their signatures also appear on the left margin of all the other pages. The WW is paged by typewritten words as
follows: "Unang Dahon" and underneath "(Page One)", "Ikalawang Dahon" and underneath "(Page Two)", etc.,
appearing at the top of each page.
The will itself provides that the testatrix desired to be buried in the Catholic Cemetery of Navotas, Rizal in accordance
with the rites of the Roman Catholic Church, all expenses to be paid from her estate; that all her obligations, if any, be
paid; that legacies in specified amounts be given to her sister, Praxides Gabriel Vda. de Santiago, her brother
Santiago Gabriel, and her nephews and nieces, Benjamin, Salud, Rizalina (herein petitioner), Victoria, Ester, Andres,
all surnamed Gabriel, and Evangeline, Rudyardo Rosa, Andrea, Marcial, Numancia, Verena an surnamed Santiago.
To herein private respondent Lutgarda Santiago, who was described in the will by the testatrix as "aking mahal na
pamangkin na aking pinalaki, inalagaan at minahal na katulad ng isang tunay na anak" and named as universal heir
and executor, were bequeathed all properties and estate, real or personal already acquired, or to be acquired, in her
testatrix name, after satisfying the expenses, debts and legacies as aforementioned.
The petition was opposed by Rizalina Gabriel Gonzales, herein petitioner, assailing the document purporting to be the
will of the deceased on the following grounds:
1. that the same is not genuine; and in the alternative
2. that the same was not executed and attested as required by law;
3. that, at the time of the alleged execution of the purported wilt the decedent lacked
testamentary capacity due to old age and sickness; and in the second alternative
4. That the purported WW was procured through undue and improper pressure and influence
on the part of the principal beneficiary, and/or of some other person for her benefit.
Lutgarda Santiago filed her Answer to the Opposition on February 1, 1962. After trial, the court a quo rendered
judgment, the summary and dispositive portions of which read:
Passing in summary upon the grounds advanced by the oppositor, this Court finds:
1. That there is no iota of evidence to support the contentio that the purported will of the
deceased was procured through undue and improper pressure and influence on the part of
the petitioner, or of some other person for her benefit;
2. That there is insufficient evidence to sustain the contention that at the time of the alleged
execution of the purported will, the deceased lacked testamentary capacity due to old age
and sickness;
3. That sufficient and abundant evidence warrants conclusively the fact that the purported will
of the deceased was not executed and attested as required by law;
4. That the evidence is likewise conclusive that the document presented for probate, Exhibit
'F' is not the purported win allegedly dictated by the deceased, executed and signed by her,
and attested by her three attesting witnesses on April 15, 1961.
 WHEREFORE, Exhibit "F", the document presented for probate as the last wig and
testament of the deceased Isabel Gabriel is here by DISALLOWED.
From this judgment of disallowance, Lutgarda Santiago appealed to respondent Court, hence, the only issue decided
on appeal was whether or not the will in question was executed and attested as required by law. The Court of
Appeals, upon consideration of the evidence adduced by both parties, rendered the decision now under review,
holding that the will in question was signed and executed by the deceased Isabel Gabriel on April 15, 1961 in the
presence of the three attesting witnesses, Matilde Orobia, Celso Gimpaya and Maria Gimpaya, signing and
witnessing the document in the presence of the deceased and of each other as required by law, hence allow ed
probate.
Oppositor Rizalina Gabriel Gonzales moved for reconsideration 3 of the aforesaid decision and such motion was
opposed 4 by petitioner-appellant Lutgarda Santiago. Thereafter. parties submitted their respective Memoranda, 5and
on August 28, 1973, respondent Court, Former Special First Division, by Resolution 6 denied the motion for
reconsideration stating that:
The oppositor-appellee contends that the preponderance of evidence shows that the
supposed last wig and testament of Isabel Gabriel was not executed in accordance with law
because the same was signed on several occasions, that the testatrix did not sign the will in
the presence of all the instrumental witnesses did not sign the will in the presence of each
other.
The resolution of the factual issue raised in the motion for reconsideration hinges on the
appreciation of the evidence. We have carefully re-examined the oral and documentary
evidence of record, There is no reason to alter the findings of fact in the decision of this Court
sought to be set aside. 7
In her petition before this Court, oppositor Rizalina Gabriel Gonzales contends that respondent Court abused its
discretion and/or acted without or in excess of its jurisdiction in reverssing the findings of fact and conclusions of the
trial court. The Court, after deliberating on the petition but without giving due course resolved, in the Resolution dated
Oct. 11, 1973 to require the respondents to comment thereon, which comment was filed on Nov. 14, 1973. Upon
consideration of the allegations, the issues raised and the arguments adduced in the petition, as well as the
Comment 8 of private respondent thereon, We denied the petition by Resolution on November 26, 1973, 9 the
question raised being factual and for insufficient showing that the findings of fact by respondent Court were
unsupported by substantial evidence.
Subsequently, or on December 17, 1973, petitioner Rim Gabriel Goes fried a Motion for Reconsideration 10 which
private respondent answered by way of her Comment or Opposition 11 filed on January 15, 1974. A Reply and
Rejoinder to Reply followed. Finally, on March 27, 1974, We resolved to give due course to the petition.
The petitioner in her brief makes the following assignment of errors:
I. The respondent Court of Appeals erred in holding that the document, Exhibit "F" was executed and attested as
required by law when there was absolutely no proof that the three instrumental witnesses were credible witness
II. The Court of Appeals erred in reversing the finding of the lower court that the preparation and execution of the win
Exhibit "F", was unexpected and coincidental.
III. The Court of Appeals erred in finding that Atty, Paraiso was not previously furnished with the names and residence
certificates of the witnesses as to enable him to type such data into the document Exhibit "F".
IV. The Court of Appeals erred in holding that the fact that the three typewritten lines under the typewritten words
"Pangalan" and "Tinitirahan" were left blank shows beyond cavil that the three attesting witnesses were all present in
the same occasion.
V. The Court of Appeals erred in reversing the trial court's finding that it was incredible that Isabel Gabriel could have
dictated the wilt Exhibit "F , without any note or document, to Atty. Paraiso.
VI. The Court of Appeals erred in reversing the finding of the trial court that Matilde Orobia was not physically present
when the Will Exhibit "F" was allegedly signed on April 15, 1961 by the deceased Isabel Gabriel and the other
witnesses Celso Gimpaya and Maria Gimpaya.
VII. The Court of Appeals erred in holding that the trial court gave undue importance to the picture takings as proof
that the win was improperly executed.
VIII. The Court of Appeals erred in holding that the grave contradictions, evasions, and misrepresentations of
witnesses (subscribing and notary) presented by the petitioner had been explained away, and that the trial court erred
in rejecting said testimonies.
IX. The Court of Appeals acted in excess of its appellate jurisdiction or has so far departed from the accepted and
usual course of judicial proceedings, as to call for an exercise of the power of supervision.
X. The Court of Appeals erred in reversing the decision of the trial court and admitting to probate Exhibit "F", the
alleged last will and testament of the deceased Isabel Gabriel.
It will be noted from the above assignments of errors that the same are substantially factual in character and content.
Hence, at the very outset, We must again state the oft-repeated and well-established rule that in this jurisdiction, the
factual findings of the Court of Appeals are not reviewable, the same being binding and conclusive on this Court. This
rule has been stated and reiterated in a long line of cases enumerated in Chan vs. CA (L-27488, June 30, 1970, 33
SCRA 737, 743) 12 and Tapas vs. CA (L-22202, February 27; 1976, 69 SCRA 393), 13 and in the more recent cases
of Baptisia vs. Carillo and CA (L32192, July 30, 1976, 72 SCRA 214, 217) and Vda. de Catindig vs. Heirs of Catalina
Roque (L-25777, November 26, 1976, 74 SCRA 83, 88). In the case of Chan vs. CA, this Court said:
... from Guico v. Mayuga, a 1936 decision, the opinion being penned by the then Justice Recto, it has been well-
settled that the jurisdiction of tills Court in cases brought to us from the Court of Appeals is limited to reviewing and
revising the errors of law imputed to it, its findings of fact being conclusive. More specifically, in a decision exactly a
month later, this Court, speaking through the then Justice Laurel, it was held that the same principle is applicable,
even if the Court of Appeals was in disagreement with the lower court as to the weight of the evidence with a
consequent reversal of its findings of fact ...
Stated otherwise, findings of facts by the Court of Appeals, when supported by substantive evidence are not
reviewable on appeal by certiorari. Said findings of the appellate court are final and cannot be disturbed by Us
particularly because its premises are borne out by the record or based upon substantial evidence and what is more,
when such findings are correct. Assignments of errors involving factual issues cannot be ventilated in a review of the
decision of the Court of Appeals because only legal questions may be raised. The Supreme Court is not at liberty to
alter or modify the facts as set forth in the decision of the Court of Appeals sought to be reversed. Where the findings
of the Court of Appeals are contrary to those of the trial court, a minute scrutiny by the Supreme Court is in order, and
resort to duly-proven evidence becomes necessary. The general rule We have thus stated above is not without some
recognized exceptions.
Having laid down the above legal precepts as Our foundation, We now proceed to consider petitioner's assignments
of errors.
Petitioner, in her first assignment, contends that the respondent Court of Appeals erred in holding that the document,
Exhibit "F", was executed and attested as required by law when there was absolutely no proof that the three
instrumental witnesses were credible witnesses. She argues that the require. ment in Article 806, Civil Code, that the
witnesses must be credible is an absolute requirement which must be complied with before an alleged last will and
testament may be admitted to probate and that to be a credible witness, there must be evidence on record that the
witness has a good standing in his community, or that he is honest and upright, or reputed to be trustworthy and
reliable. According to petitioner, unless the qualifications of the witness are first established, his testimony may not be
favorably considered. Petitioner contends that the term "credible" is not synonymous with "competent" for a witness
may be competent under Article 820 and 821 of the Civil Code and still not be credible as required by Article 805 of
the same Code. It is further urged that the term "credible" as used in the Civil Code should receive the same settled
and well- known meaning it has under the Naturalization Law, the latter being a kindred legislation with the Civil Code
provisions on wigs with respect to the qualifications of witnesses.
We find no merit to petitioner's first assignment of error. Article 820 of the Civil Code provides the qualifications of a
witness to the execution of wills while Article 821 sets forth the disqualification from being a witness to a win. These
Articles state:
Art. 820. Any person of sound mind and of the age of eighteen years or more, and not blind,
deaf or dumb, and able to read and write, may be a witness to the execution of a will
mentioned in article 806 of this Code. "Art. 821. The following are disqualified from being
witnesses to a will:
(1) Any person not domiciled in the Philippines,
(2) Those who have been convicted of falsification of a document, perjury or false testimony.
Under the law, there is no mandatory requirement that the witness testify initially or at any time during the trial as to
his good standing in the community, his reputation for trustworthythiness and reliableness, his honesty and
uprightness in order that his testimony may be believed and accepted by the trial court. It is enough that the
qualifications enumerated in Article 820 of the Civil Code are complied with, such that the soundness of his mind can
be shown by or deduced from his answers to the questions propounded to him, that his age (18 years or more) is
shown from his appearance, testimony , or competently proved otherwise, as well as the fact that he is not blind, deaf
or dumb and that he is able to read and write to the satisfaction of the Court, and that he has none of the
disqualifications under Article 821 of the Civil Code. We reject petitioner's contention that it must first be established in
the record the good standing of the witness in the community, his reputation for trustworthiness and reliableness, his
honesty and uprightness, because such attributes are presumed of the witness unless the contrary is proved
otherwise by the opposing party.
We also reject as without merit petitioner's contention that the term "credible" as used in the Civil Code should be
given the same meaning it has under the Naturalization Law where the law is mandatory that the petition for
naturalization must be supported by two character witnesses who must prove their good standing in the community,
reputation for trustworthiness and reliableness, their honesty and uprightness. The two witnesses in a petition for
naturalization are character witnesses in that being citizens of the Philippines, they personally know the petitioner to
be a resident of the Philippines for the period of time required by the Act and a person of good repute and morally
irreproachable and that said petitioner has in their opinion all the qualifications necessary to become a citizen of the
Philippines and is not in any way disqualified under the provisions of the Naturalization Law (Section 7,
Commonwealth Act No. 473 as amended).
In probate proceedings, the instrumental witnesses are not character witnesses for they merely attest the execution of
a will or testament and affirm the formalities attendant to said execution. And We agree with the respondent that the
rulings laid down in the cases cited by petitioner concerning character witnesses in naturalization proceedings are not
applicable to instrumental witnesses to wills executed under the Civil Code of the Philippines.
In the case at bar, the finding that each and everyone of the three instrumental witnesses, namely, Matilde Orobia,
Celso Gimpaya and Maria Gimpaya, are competent and credible is satisfactorily supported by the evidence as found
by the respondent Court of Appeals, which findings of fact this Tribunal is bound to accept and rely upon. Moreover,
petitioner has not pointed to any disqualification of any of the said witnesses, much less has it been shown that
anyone of them is below 18 years of age, of unsound mind, deaf or dumb, or cannot read or write.
It is true that under Article 805 of the New Civil Code, every will, other than a holographic will, must be subscribed at
the end thereof by the testator himself or by the testator's name written by some other person in his presence, and by
his express direction, and attested and subscribed by three or more credible witnesses in the presence of the testator
and of one another, While the petitioner submits that Article 820 and 821 of the New Civil Code speak of
the competency of a witness due to his qualifications under the first Article and none of the disqualifications under the
second Article, whereas Article 805 requires the attestation of three or more credible witnesses, petitioner concludes
that the term credible requires something more than just being competent and, therefore, a witness in addition to
being competent under Articles 820 and 821 must also be a credible witness under Article 805.
Petitioner cites American authorities that competency and credibility of a witness are not synonymous terms and one
may be a competent witness and yet not a credible one. She exacerbates that there is no evidence on record to show
that the instrumental witnesses are credible in themselves, that is, that they are of good standing in the community
since one was a family driver by profession and the second the wife of the driver, a housekeeper. It is true that Celso
Gimpaya was the driver of the testatrix and his wife Maria Gimpaya, merely a housekeeper, and that Matilde Orobia
was a piano teacher to a grandchild of the testatrix But the relation of employer and employee much less the humble
or financial position of a person do not disqualify him to be a competent testamentary witness. (Molo Pekson and
Perez Nable vs. Tanchuco, et al., 100 Phil. 344; Testate Estate of Raymundo, Off. Gaz., March 18,1941, p. 788).
Private respondent maintains that the qualifications of the three or more credible witnesses mentioned in Article 805
of the Civil Code are those mentioned in Article 820 of the same Code, this being obvious from that portion of Article
820 which says "may be Q witness to the execution of a will mentioned in Article 805 of this Code," and cites
authorities that the word "credible" insofar as witnesses to a will are concerned simply means " competent." Thus, in
the case of Suntay vs. Suntay, 95 Phil. 500, the Supreme Court held that "Granting that a will was duly executed and
that it was in existence at the time of, and not revoked before, the death of the testator, still the provisions of the lost
wig must be clearly and distinctly proved by at least two credible witnesses. 'Credible witnesses' mean competent
witnesses and not those who testify to facts from or upon hearsay. " emphasis supplied).
In Molo Pekson and Perez Nable vs. Tanchuco, et al., 100 Phil. 344, the Supreme Court held that "Section 620 of the
same Code of Civil Procedure provides that any person of sound mind, and of the age of eighteen years or more, and
not blind, deaf, or dumb and able to read and write, may be a witness to the execution of a will. This same provision is
reproduced in our New Civil Code of 1950, under Art. 820. The relation of employer and employee, or being a relative
to the beneficiary in a win, does not disqualify one to be a witness to a will. The main qualification of a witness in the
attestation of wills, if other qualifications as to age, mental capacity and literacy are present, is that said witness must
be credible, that is to say, his testimony may be entitled to credence. There is a long line of authorities on this point, a
few of which we may cite:
A 'credible witness is one who is not is not to testify by mental incapacity, crime, or other
cause. Historical Soc of Dauphin County vs. Kelker 74 A. 619, 226 Pix 16, 134 Am. St. Rep.
1010. (Words and Phrases, Vol. 10, p. 340).
As construed by the common law, a 'credible witness' to a will means a 'competent witness.'
Appeal of Clark, 95 A. 517, 114 Me. 105, Ann. Cas. 1917A, 837. (lbid, p. 341).
Expression 'credible witness' in relation to attestation of wins means 'competent witness that
is, one competent under the law to testify to fact of execution of will. Vernon's Ann. Civ St.
art. 8283. Moos vs. First State Bank of Uvalde, Tex . Civ. App. 60 S.W. 2nd 888, 889. (Ibid,
p. 342)
 The term 'credible', used in the statute of wills requiring that a will shall be attested by two
credible witnesses means competent; witnesses who, at the time of attesting the will, are
legally competent to testify, in a court of justice, to the facts attested by subscribing the will,
the competency being determined as of the date of the execution of the will and not of the
timr it is offered for probate, Smith vs. Goodell 101 N.E. 255, 256, 258 111. 145. (Ibid.)
Credible witnesses as used in the statute relating to wills, means competent witnesses —
that is, such persons as are not legally disqualified from testifying in courts of justice, by
reason of mental incapacity, interest, or the commission of crimes, or other cause excluding
them from testifying generally, or rendering them incompetent in respect of the particular
subject matter or in the particular suit. Hill vs. Chicago Title & Trust co 152 N.E. 545, 546,
322 111. 42. (Ibid. p, 343)
In the strict sense, the competency of a person to be an instrumental witness to a will is determined by the statute,
that is Art. 820 and 821, Civil Code, whereas his credibility depends On the appreciation of his testimony and arises
from the belief and conclusion of the Court that said witness is telling the truth. Thus, in the case of Vda. de Aroyo v.
El Beaterio del Santissimo Rosario de Molo, No. L-22005, May 3, 1968, the Supreme Court held and ruled that:
"Competency as a witness is one thing, and it is another to be a credible witness, so credible that the Court must
accept what he says. Trial courts may allow a person to testify as a witness upon a given matter because he is
competent, but may thereafter decide whether to believe or not to believe his testimony." In fine, We state the rule that
the instrumental witnesses in Order to be competent must be shown to have the qualifications under Article 820 of the
Civil Code and none of the disqualifications under Article 821 and for their testimony to be credible, that is worthy of
belief and entitled to credence, it is not mandatory that evidence be first established on record that the witnesses have
a good standing in the community or that they are honest and upright or reputed to be trustworthy and reliable, for a
person is presumed to be such unless the contrary is established otherwise. In other words, the instrumental
witnesses must be competent and their testimonies must be credible before the court allows the probate of the will
they have attested. We, therefore, reject petitioner's position that it was fatal for respondent not to have introduced
prior and independent proof of the fact that the witnesses were "credible witnesses that is, that they have a good
standing in the community and reputed to be trustworthy and reliable.
Under the second, third, fourth, fifth, sixth, seventh and eighth assignments of errors, petitioner disputes the findings
of fact of the respondent court in finding that the preparation and execution of the will was expected and not
coincidental, in finding that Atty. Paraiso was not previously furnished with the names and residence certificates of the
witnesses as to enable him to type such data into the document Exhibit "F", in holding that the fact that the three
typewritten lines under the typewritten words "pangalan" and "tinitirahan" were left blank shows beyond cavil that the
three attesting witnesses were all present in the same occasion, in holding credible that Isabel Gabriel could have
dictated the will without note or document to Atty. Paraiso, in holding that Matilde Orobia was physically present when
the will was signed on April 15, 1961 by the deceased Isabel Gabriel and the other witnesses Celso Gimpaya and
Maria Gimpaya, in holding that the trial court gave undue importance to the picture takings as proof that the will was
improperly executed, and in holding that the grave contradictions, evasions and misrepresentations of the witnesses
(subscribing and notary) presented by the petitioner had been explained away.
Since the above errors are factual We must repeat what We have previously laid down that the findings of fact of the
appellate court are binding and controlling which We cannot review, subject to certain exceptions which We win
consider and discuss hereinafter. We are convinced that the appellate court's findings are sufficiently justified and
supported by the evidence on record. Thus, the alleged unnaturalness characterizing the trip of the testatrix to the
office of Atty. Paraiso and bringing all the witnesses without previous appointment for the preparation and execution
of the win and that it was coincidental that Atty. Paraiso was available at the moment impugns the finding of the Court
of Appeals that although Atty. Paraiso admitted the visit of Isabel Gabriel and of her companions to his office on April
15, 1961 was unexpected as there was no prior appointment with him, but he explained that he was available for any
business transaction on that day and that Isabel Gabriel had earlier requested him to help her prepare her will. The
finding of the appellate court is amply based on the testimony of Celso Gimpaya that he was not only informed on the
morning of the day that he witnessed the will but that it was the third time when Isabel Gabriel told him that he was
going to witness the making of her will, as well as the testimony of Maria Gimpaya that she was called by her husband
Celso Gimpaya to proceed to Isabel Gabriel's house which was nearby and from said house, they left in a car to the
lawyer's office, which testimonies are recited in the respondent Court's decision.
The respondent Court further found the following facts: that Celso Gimpaya and his wife Maria Gimpaya obtained
residence certificates a few days before Exhibit "F" was executed. Celso Gimpaya's residence certificate No. A-
5114942 was issued at Navotas, Rizal on April 13, 1961 while Maria Gimpaya's residence certificate No. A-5114974
was issued also at Navotas, Rizal on April 14, 1961. The respondent Court correctly observed that there was nothing
surprising in these facts and that the securing of these residence certificates two days and one day, respectively,
before the execution of the will on April 15, 1961, far from showing an amazing coincidence, reveals that the spouses
were earlier notified that they would be witnesses to the execution of Isabel Gabriel's will.
We also agree with the respondent Court's conclusion that the excursion to the office of Atty. Paraiso was planned by
the deceased, which conclusion was correctly drawn from the testimony of the Gimpaya spouses that they started
from the Navotas residence of the deceased with a photographer and Isabel Gabriel herself, then they proceeded by
car to Matilde Orobia's house in Philamlife, Quezon City to fetch her and from there, all the three witnesses (the
Gimpayas and Orobia) passed by a place where Isabel Gabriel stayed for about ten to fifteen minutes at the clinic of
Dr. Chikiamco before they proceeded to Atty. Cipriano Paraiso's office.
It is also evident from the records, as testified to by Atty. Paraiso, that previous to the day that. the will was executed
on April 15, 1961, Isabel Gabriel had requested him to help her in the execution of her will and that he told her that if
she really wanted to execute her will, she should bring with her at least the Mayor of Navotas, Rizal and a Councilor
to be her witnesses and that he (Atty. Paraiso) wanted a medical certificate from a physician notwithstanding the fact
that he believed her to be of sound and disposition mind. From this evidence, the appellate court rightly concluded,
thus: "It is, therefore, clear that the presence of Isabel Gabriel and her witnesses Matilde Orobia, Celso Gimpaya and
Maria Gimpaya including the photographer in the law office of Atty. Paraiso was not coincidental as their gathering
was pre-arranged by Isabel Gabriel herself."
As to the appellate court's finding that Atty. Paraiso was not previously furnished with the names and residence
certificates of the witnesses as to enable him to type such data into the document Exhibit ' L which the petitioner
assails as contradictory and irreconcilable with the statement of the Court that Atty. Paraiso was handed a list
(containing the names of the witnesses and their respective residence certificates) immediately upon their arrival in
the law office by Isabel Gabriel and this was corroborated by Atty. Paraiso himself who testified that it was only on
said occasion that he received such list from Isabel Gabriel, We cannot agree with petitioner's contention. We find no
contradiction for the, respondent Court held that on the occasion of the will making on April 15, 1961, the list was
given immediately to Atty. Paraiso and that no such list was given the lawyer in any previous occasion or date prior to
April 15, 1961.
But whether Atty. Paraiso was previously furnished with the names and residence certificates of the witnesses on a
prior occasion or on the very occasion and date in April 15, 1961 when the will was executed, is of no moment for
such data appear in the notarial acknowledgment of Notary Public Cipriano Paraiso, subscribed and sworn to by the
witnesses on April 15, 1961 following the attestation clause duly executed and signed on the same occasion, April 15,
1961. And since Exhibit "F" is a notarial will duly acknowledged by the testatrix and the witnesses before a notary
public, the same is a public document executed and attested through the intervention of the notary public and as such
public document is evidence of the facts in clear, unequivocal manner therein expressed. It has in its favor the
presumption of regularity. To contradict all these, there must be evidence that is clear, convincing and more than
merely preponderant. (Yturalde vs. Azurin, 28 SCRA 407). We find no such evidence pointed by petitioner in the case
at bar.
Likewise, the conclusion of the Court of Appeals in holding that the fact that the three typewritten lines under the
typewritten words "pangalan ' and "tinitirahan" were left blank shows beyond cavil that the three attesting witnesses
were all present in the same occasion merits Our approval because tills conclusion is supported and borne out by the
evidence found by the appellate court, thus: "On page 5 of Exhibit "F", beneath the typewritten words "names", "Res.
Tax Cert. date issued" and place issued the only name of Isabel Gabriel with Residence Tax certificate No. A-
5113274 issued on February 24, 1961 at Navotas Rizal appears to be in typewritten form while the names, residence
tax certificate numbers, dates and places of issuance of said certificates pertaining to the three (3) witnesses were
personally handwritten by Atty. Paraiso. Again, this coincides with Atty. Paraiso's even the sale must be made to
close relatives; and the seventh was the appointment of the appellant Santiago as executrix of the will without bond.
The technical description of the properties in paragraph 5 of Exhibit F was not given and the numbers of the
certificates of title were only supplied by Atty. Paraiso. "
It is true that in one disposition, the numbers of the Torrens titles of the properties disposed and the docket number of
a special proceeding are indicated which Atty. Paraiso candidly admitted were supplied by him, whereupon petitioner
contends that it was incredible that Isabel Gabriel could have dictated the will Exhibit "F" without any note or
document to Atty. Paraiso, considering that Isabel Gabriel was an old and sickly woman more than eighty-one years
old and had been suffering from a brain injury caused by two severe blows at her head and died of terminal cancer a
few weeks after the execution of Exhibit "F". While we can rule that this is a finding of fact which is within the
competency of the respondent appellate court in determining the testamentary capacity of the testatrix and is,
therefore, beyond Our power to revise and review, We nevertheless hold that the conclusion reached by the Court of
Appeals that the testatrix dictated her will without any note or memorandum appears to be fully supported by the
following facts or evidence appearing on record. Thus, Isabel Gabriel, despite her age, was particularly active in her
business affairs as she actively managed the affairs of the movie business ISABELITA Theater, paying the
aparatistas herself until June 4, 1961, 3 days before her death. She was the widow of the late Eligio Naval, former
Governor of Rizal Province and acted as coadministratrix in the Intestate Estate of her deceased husband Eligio
Naval. The text of the win was in Tagalog, a dialect known and understood by her and in the light of all the
circumstances, We agree with the respondent Court that the testatrix dictated her will without any note or
memorandum, a fact unanimously testified to by the three attesting witnesses and the notary public himself.
Petitioner's sixth assignment of error is also bereft of merit. The evidence, both testimonial and documentary is,
according to the respondent court, overwhelming that Matilde Orobia was physically present when the will was signed
on April 15, 1961 by the testatrix and the other two witnesses, Celso Gimpaya and Maria Gimpaya. Such factual
finding of the appellate court is very clear, thus: "On the contrary, the record is replete with proof that Matilde Orobia
was physically present when the will was signed by Isabel Gabriel on April '15, 1961 along with her co-witnesses
Celso Gimpaya and Maria Gimpaya. The trial court's conclusion that Orobia's admission that she gave piano lessons
to the child of the appellant on Wednesdays and Saturdays and that April 15, 1961 happened to be a Saturday for
which reason Orobia could not have been present to witness the will on that — day is purely conjectural. Witness
Orobia did not admit having given piano lessons to the appellant's child every Wednesday and Saturday without fail. It
is highly probable that even if April 15, 1961 were a Saturday, she gave no piano lessons on that day for which
reason she could have witnessed the execution of the will. Orobia spoke of occasions when she missed giving piano
lessons and had to make up for the same. Anyway, her presence at the law office of Atty. Paraiso was in the morning
of April 15, 1961 and there was nothing to preclude her from giving piano lessons on the afternoon of the same day in
Navotas, Rizal."
In addition to the testimony of Matilde Orobia, Celso Gimpaya and Maria Gimpaya that Matilde was present on April
15, 1961 and that she signed the attestation clause to the will and on the left-hand margin of each of the pages of the
will, the documentary evidence which is the will itself, the attestation clause and the notarial acknowledgment
overwhelmingly and convincingly prove such fact that Matilde Orobia was present on that day of April 15, 1961 and
that she witnessed the will by signing her name thereon and acknowledged the same before the notary public, Atty.
Cipriano P. Paraiso. The attestation clause which Matilde Orobia signed is the best evidence as to the date of signing
because it preserves in permanent form a recital of all the material facts attending the execution of the will. This is the
very purpose of the attestation clause which is made for the purpose of preserving in permanent form a record of the
facts attending the execution of the will, so that in case of failure in the memory of the subscribing witnesses, or other
casualty they may still be proved. (Thompson on Wills, 2nd ed., Sec. 132; Leynez vs. Leynez, 68 Phil. 745).
As to the seventh error assigned by petitioner faulting the Court of Appeals in holding that the trial court gave undue
importance to the picture-takings as proof that the win was improperly executed, We agree with the reasoning of the
respondent court that: "Matilde Orobia's Identification of the photographer as "Cesar Mendoza", contrary to what the
other two witnesses (Celso and Maria Gimpaya) and Atty. Paraiso said that the photographer was Benjamin Cifra, Jr.,
is at worst a minor mistake attributable to lapse of time. The law does not require a photographer for the execution
and attestation of the will. The fact that Miss Orobia mistakenly Identified the photographer as Cesar Mendoza
scarcely detracts from her testimony that she was present when the will was signed because what matters here is not
the photographer but the photograph taken which clearly portrays Matilde Orobia herself, her co-witnesses Celso
Gimpaya. " Further, the respondent Court correctly held: "The trial court gave undue importance to the picture takings,
jumping therefrom to the conclusion that the will was improperly executed. The evidence however, heavily points to
only one occasion of the execution of the will on April 15, 1961 which was witnessed by Matilde Orobia, Celso
Gimpaya and Maria Gimpaya. These witnesses were quite emphatic and positive when they spoke of this occasion.
Hence, their Identification of some photographs wherein they all appeared along with Isabel Gabriel and Atty. Paraiso
was superfluous."
Continuing, the respondent Court declared: "It is true that the second picture-taking was disclosed at the cross
examination of Celso Gimpaya. But this was explained by Atty. Paraiso as a reenactment of the first incident upon the
insistence of Isabel Gabriel. Such reenactment where Matilde Orobia was admittedly no longer present was wholly
unnecessary if not pointless. What was important was that the will was duly executed and witnessed on the first
occasion on April 15, 1961 , " and We agree with the Court's rationalization in conformity with logic, law and
jurisprudence which do not require picture-taking as one of the legal requisites for the execution or probate of a will.
Petitioner points to alleged grave contradictions, evasions and misrepresentations of witnesses in their respective
testimonies before the trial court. On the other hand, the respondent Court of Appeals held that said contradictions,
evasions and misrepresentations had been explained away. Such discrepancies as in the description of the typewriter
used by Atty. Paraiso which he described as "elite" which to him meant big letters which are of the type in which the
will was typewritten but which was Identified by witness Jolly Bugarin of the N.B.I. as pica the mistake in mentioning
the name of the photographer by Matilde Orobia to be Cesar Mendoza when actually it was Benjamin Cifra, Jr.—
these are indeed unimportant details which could have been affected by the lapse of time and the treachery of human
memory such that by themselves would not alter the probative value of their testimonies on the true execution of the
will, (Pascual vs. dela Cruz, 28 SCRA 421, 424) for it cannot be expected that the testimony of every person win be
Identical and coinciding with each other with regard to details of an incident and that witnesses are not expected to
remember all details. Human experience teach us "that contradictions of witnesses generally occur in the details of
certain incidents, after a long series of questionings, and far from being an evidence of falsehood constitute a
demonstration of good faith. In as much as not all those who witness an incident are impressed in like manner, it is
but natural that in relating their impressions, they should not agree in the minor details; hence the contradictions in
their testimony." (Lopez vs. Liboro, 81 Phil. 429).
It is urged of Us by the petitioner that the findings of the trial court should not have been disturbed by the respondent
appellate court because the trial court was in a better position to weigh and evaluate the evidence presented in the
course of the trial. As a general rule, petitioner is correct but it is subject to well-established exceptions. The right of
the Court of Appeals to review, alter and reverse the findings of the trial court where the appellate court, in reviewing
the evidence has found that facts and circumstances of weight and influence have been ignored and overlooked and
the significance of which have been misinterpreted by the trial court, cannot be disputed. Findings of facts made by
trial courts particularly when they are based on conflicting evidence whose evaluation hinges on questions of
credibility of contending witnesses hes peculiarly within the province of trial courts and generally, the appellate court
should not interfere with the same. In the instant case, however, the Court of Appeals found that the trial court had
overlooked and misinterpreted the facts and circumstances established in the record. Whereas the appellate court
said that "Nothing in the record supports the trial court's unbelief that Isabel Gabriel dictated her will without any note
or document to Atty. Paraiso;" that the trial court's conclusion that Matilde Orobia could not have witnessed anybody
signing the alleged will or that she could not have witnessed Celso Gimpaya and Maria Gimpaya sign the same or
that she witnessed only the deceased signing it, is a conclusion based not on facts but on inferences; that the trial
court gave undue importance to the picture-takings, jumping therefrom to the conclusion that the will was improperly
executed and that there is nothing in the entire record to support the conclusion of the court a quo that the will signing
occasion was a mere coincidence and that Isabel Gabriel made an appointment only with Matilde Orobia to witness
the signing of her will, then it becomes the duty of the appellate court to reverse findings of fact of the trial court in the
exercise of its appellate jurisdiction over the lower courts.
Still the petitioner insists that the case at bar is an exception to the rule that the judgment of the Court of Appeals is
conclusive as to the facts and cannot be reviewed by the Supreme Court. Again We agree with the petitioner that
among the exceptions are: (1) when the conclusion is a finding grounded entirely on speculations, surmises or
conjectures; (2) when the inference is manifestly mistaken, absurd or impossible; (3) when there is a grave abuse of
discretion; (4) when the presence of each other as required by law. " Specifically, We affirm that on April 15, 1961 the
testatrix Isabel Gabriel, together with Matilde Orobia, Celso Gimpaya and his wife Maria Gimpaya, and a
photographer proceeded in a car to the office of Atty. Cipriano Paraiso at the Bank of P.I. Building, Manila in the
morning of that day; that on the way, Isabel Gabriel obtained a medical certificate from one Dr. Chikiamko which she
gave to Atty. Paraiso upon arriving at the latter's office and told the lawyer that she wanted her will to be made; that
Atty. Paraiso asked Isabel Gabriel to dictate what she wanted to be written in the will and the attorney wrote down the
dictation of Isabel Gabriel in Tagalog, a language known to and spoken by her; that Atty. Paraiso read back to her
what he wrote as dictated and she affirmed their correctness; the lawyer then typed the will and after finishing the
document, he read it to her and she told him that it was alright; that thereafter, Isabel Gabriel signed her name at the
end of the will in the presence of the three witnesses Matilde Orobia, Celso Gimpaya and Maria Gimpaya and also at
the left-hand margin of each and every page of the document in the presence also of the said three witnesses; that April 15, 1961 in the presence of Matilde Orobia, Celso Gimpaya and Maria Gimpaya signing and witnessing the
thereafter Matilde Orobia attested the will by signing her name at the end of the attestation clause and at the left-hand same in the the will on a table with Isabel Gabriel, Celso Gimpaya and Maria Gimpaya sitting around the table. Atty.
margin of pages 1, 2, 3 and 5 of the document in the presence of Isabel Gabriel and the other two witnesses, Celso Paraiso, after finishing the notarial act, then delivered the original to Isabel Gabriel and retained the other copies for
Gimpaya and Maria Gimpaya; then, Celso Gimpaya signed also the will at the bottom of the attestation clause and at his file and notarial register. A few days following the signing of the will, Isabel Gabriel, Celso Gimpaya and another
the left-hand margin of the other pages of the document in the presence of Isabel Gabriel, Matilde Orobia and Maria photographer arrived at the office of Atty. Paraiso and told the lawyer that she wanted another picture taken because
Gimpaya; that Maria Gimpaya followed suit, signing her name at the foot of the attestation clause and at the left-hand the first picture did not turn out good. The lawyer told her that this cannot be done because the will was already
margin of every page in the presence of Isabel Gabriel, Matilde Orobia and Celso Gimpaya; that thereafter, Atty. signed but Isabel Gabriel insisted that a picture be taken, so a simulated signing was performed during which incident
Paraiso notarized the will as Page No. 94, Book No. IV, Series of 1961, in his Notarial Register. On the occasion of Matilde Orobia was not present.
the execution and attestation of the will, a photographer took pictures, one Exhibit "G", depicting Matilde Orobia, the
testatrix Isabel Gabriel, Celso Gimpaya, Maria Gimpaya and Atty. Paraiso, taken on said occasion of the signing of
Petitioner's exacerbation centers on the supposed incredibility of the testimonies of the witnesses for the proponent of
the will, and another, Exhibit "H", showing Matilde Orobia signing testimony that he had earlier advised Isabel Gabriel
the will, their alleged evasions, inconsistencies and contradictions. But in the case at bar, the three instrumental
to bring with her at least the Mayor and a Councilor of Navotas, Rizal to be her witnesses for he did not know
witnesses who constitute the best evidence of the will making have testified in favor of the probate of the will. So has
beforehand the Identities of the three attesting witnesses until the latter showed up at his law office with Isabel Gabriel
the lawyer who prepared it, one learned in the law and long in the practice thereof, who thereafter notarized it. All of
on April 15, 1961. Atty. Paraiso's claim which was not controverted that he wrote down in his own hand the date
them are disinterested witnesses who stand to receive no benefit from the testament. The signatures of the witnesses
appearing on page 5 of Exhibit "F" dissipates any lingering doubt that he prepared and ratified the will on the date in
and the testatrix have been identified on the will and there is no claim whatsoever and by anyone, much less the
question."
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.
It is also a factual finding of the Court of Appeals in holding that it was credible that Isabel Gabriel could have dictated
the will, Exhibit "F", without any note or document to Atty. Paraiso as against the contention of petitioner that it was
WHEREFORE, IN VIEW OF THE FOREGOING, the judgment appealed from is hereby AFFIRMED, with costs
incredible. This ruling of the respondent court is fully supported by the evidence on record as stated in the decision
against the petitioner.
under review, thus: "Nothing in the record supports the trial court's unbelief that Isabel Gabriel dictated her will without
any note or document to Atty. Paraiso. On the contrary, all the three attesting witnesses uniformly testified that Isabel
Gabriel dictated her will to Atty. Paraiso and that other than the piece of paper that she handed to said lawyer she had SO ORDERED.
no note or document. This fact jibes with the evidence — which the trial court itself believed was unshaken — that
Isabel Gabriel was of sound disposing memory when she executed her will.

Exhibit "F" reveals only seven (7) dispositions which are not complicated but quite simple. The first was Isabel
Gabriel's wish to be interred according to Catholic rites the second was a general directive to pay her debts if any; the
third provided for P1,000.00 for her sister Praxides Gabriel Vda. de Santiago and P2,000.00 for her brother Santiago
Gabriel; the fourth was a listing of her 13 nephews and nieces including oppositor-appellee Rizalina Gabriel and the
amount for each legatee the fifth was the institution of the petitioner-appellant, Lutgarda Santiago as the principal heir
mentioning in general terms seven (7) types of properties; the sixth disposed of the remainder of her estate which she
willed in favor of appellant Lutgarda Santiago but prohibiting the sale of such properties to anyone except in extreme
situations in which judgment is based on a misapprehension of facts; (5) when the findings of fact are conflicting, (6)
when the Court of Appeals, in making its findings, went beyond the issues of the case and the same is contrary to the
admissions of both appellant and appellee. (Roque vs. Buan, et al., G.R. No. L-22459, Oct. 31, 1967; Ramos vs.
Pepsi Cola Bottling Co., G.R. No. L-22533, Feb. 9, 1967; Hilarion Jr. vs. City of Manila, G.R. No. L-19570; Sept. 14,
1967).

Petitioner's insistence is without merit. We hold that the case at bar does not fall within any of the exceptions
enumerated above. We likewise hold that the findings of fact of the respondent appellate court are fully supported by
the evidence on record. The conclusions are fully sustained by substantial evidence. We find no abuse of discretion
and We discern no misapprehension of facts. The respondent Court's findings of fact are not conflicting. Hence, the
well-established rule that the decision of the Court of Appeals and its findings of fact are binding and conclusive and
should not be disturbed by this Tribunal and it must be applied in the case at bar in its full force and effect, without
qualification or reservation. The above holding simply synthesize the resolutions we have heretofore made in respect '
to petitioner's previous assignments of error and to which We have disagreed and, therefore, rejected.

The last assignments of error of petitioner must necessarily be rejected by Us as We find the respondent Court acted
properly and correctly and has not departed from the accepted and usual course of judicial proceedings as to call for
the exercise of the power of supervision by the Supreme Court, and as We find that the Court of Appeals did not err in
reversing the decision of the trial court and admitting to probate Exhibit "F", the last will and testament of the
deceased Isabel Gabriel.

We rule that the respondent Court's factual findings upon its summation and evaluation of the evidence on record is
unassailable that: "From the welter of evidence presented, we are convinced that the will in question was executed on
 EN BANC
[G.R. No. L-26615. April 30, 1970.]
REV. FATHER LUCIO V. GARCIA, ANTONIO JESUS DE PRAGA, MARIA NATIVIDAD DE JESUS AND DR.
JAIME ROSARIO, Petitioners, v. HON. CONRADO M. VASQUEZ, as Judge of the Court of First Instance of
Manila, Branch and CONSUELO GONZALES VDA. DE PRECILLA, Respondents.
[G.R. No. L-26884. April 30, 1970.]
REV. FATHER LUCIO V. GARCIA, ANTONIO JESUS DE PRAGA, MARIA NATIVIDAD DE JESUS AND DR.
JAIME ROSARIO, Petitioners, v. HON. CONRADO M. VASQUEZ, as Judge of the Court of First Instance of
Manila, Branch V, REGISTER OF DEEDS OF MANILA, and CONSUELO GONZALES VDA. DE
PRECILLA, Respondents.
[G.R. No. L-27200. April 30, 1970.]
TESTATE ESTATE OF GLICERIA A. DEL ROSARIO, deceased CONSUELO S. GONZALES VDA. DE PRECILLA,
petitioner administratrix, v. SEVERINA NARCISO, ROSA NARCISO, JOSEFINA NARCISO, VICENTE
MAURICIO, DELFIN MAURICIO, REMEDIOS NARCISO, ENCARNACION, NARCISO, MARIA NARCISO,
EDUARDO NARCISO, FR. LUCIO V. GARCIA, ANTONIO JESUS DE PRAGA, MARIA NATIVIDAD DE JESUS,
DR. JAIME DEL ROSARIO, ET AL., NATIVIDAD DEL ROSARIO-SARMIENTO and PASCUALA NARCISO-
MANAHAN, Oppositors-Appellants.
Antonio Enrile Inton for petitioner Rev. Father Lucio V. Garcia.
Pedro V. Garcia for petitioner Antonio Jesus de Praga, Et. Al.
Leandro Sevilla & Ramon C. Aquino and Melquiades M. Virata, Jr. for respondent Consuelo S. Gonzales Vda.
de Precilla.
Lorenzo C. Gella for respondent Register of Deeds of Manila. Leandro Sevilla & Ramon C. Aquino for
petitioner administratrix.
Castro, Makalintal & Associates for oppositors-appellants Encarnacion Narciso, Et. Al.
Pedro Garcia for oppositors-appellants Dr. Jaime Rosario, Et. Al.
Antonio Enrile Inton for oppositors-appellants Fr. Lucio V. Garcia and Antonio Jesus de Praga.
Salonga, Ordoñez, Yap, Sicat & Associates for oppositors-appellants Severina Narciso, Et. Al.
George G. Arbolario and Sixto R. Reyes & Vicente Redor for oppositors-appellants Natividad del Rosario
Sarmiento, Et. Al.
DECISION
REYES, J.B.L., J.:
G.R. No. L-27200 is an appeal from the order of the Court of First Instance of Manila (in Sp. Proc. No. 62618)
admitting to probate the alleged last will an, testament of the late Gliceria Avelino del Rosario dated 29 December
1960. G.R. Nos. L-26615 and L-2684 are separate petitions for mandamus filed by certain alleged heirs of said
decedent seeking (1) to compel the probate court to remove Consuelo S. Gonzales-Precilla as special administratrix
of the estate, for conflict of interest, to appoint a new one in her stead; and (2) to order the Register of Deeds of
Manila to annotate notice of lis pendens in TCT Nos. 81735, 81736 ,and 81737, registered in the name of Alfonso
Precilla, married to Consuelo Gonzales y Narciso, and said to be properly belonging to the estate of the deceased
Gliceria A. del Rosario.
Insofar as pertinent to the issues involved herein, the facts of these cases may be stated as follows:chanrob1es
virtual 1aw library
Gliceria Avelino del Rosario died unmarried in the City of Manila on 2 September 1965, leaving no descendents,
ascendants, brother or sister. At the time of her death, she was said to be 90 years old more or less, and possessed
of an estate consisting mostly of real properties.
On 17 September 1965, Consuelo S. Gonzales Vda. de Precilla, a niece of the deceased, petitioned the Court of First
Instance of Manila for probate of the alleged last will and testament of Gliceria A. del Rosario, executed on 29
December 1960, and for her appointment as special administratrix of the latter’s estate, said to be valued at about
P100,000.00, pending the appointment of a regular administrator thereof.
The petition was opposed separately by several groups of alleged heirs: (1) Rev. Fr. Lucio V. Garcia, a legatee
named in an earlier will executed by Gliceria A. del Rosario on 9 June 1956; (2) Jaime Rosario and children, relatives
and legatees in both the 1956 and 1960 wills; Antonio Jesus de Praga and Marta Natividad de Jesus, wards of the
deceased and legatees in the 1956 and 1960 wills; (3) Remedios, Encarnacion, and Eduardo, all surnamed Narciso;
(4) Natividad del Rosario-Sarmiento; (5) Maria Narciso; (6) Pascuala Narciso de Manahan; (7) Severina, Rosa and
Josefa, surnamed Narciso, and Vicente and Delfin, surnamed Mauricio, — the latter five groups of persons all
claiming to be relatives of Doña Gliceria within the fifth civil degree. The oppositions invariably charged that the
instrument executed in 1960 was not intended by the deceased to be her true will; that the signatures of the deceased
appearing in the will was procured through undue and improper pressure and influence the part of the beneficiaries
and/or other persons; that the testatrix did not know the object of her bounty; that the instrument itself reveals
irregularities in its execution, and that the formalities required by law for such execution have not been complied with.
Oppositor Lucio V. Garcia, who also presented for probate the 1956 will of the deceased, joined the group of Dr.
Jaime Rosario in registering opposition to the appointment of petitioner Consuelo S. Gonzales Vda. de Precilla as
special administratrix, on the ground that the latter possesses interest adverse to the estate. After the parties were
duly heard, the probate court, in its order of 2 October 1965, granted petitioner’s prayer and appointed her special
administratrix of the estate upon a bond for P30,000.00. The order was premised on the fact the petitioner was
managing the properties belonging to the estate even during the lifetime of the deceased, and to appoint another
person as administrator or co administrator at that stage of the proceeding would only result in further confusion and
difficulties.
On 30 September 1965, oppositors Jaime Rosario, Et. Al. filed with the probate court an urgent motion to require the
Hongkong & Shanghai Bank to report all withdrawals made against the funds of the deceased after 2 September
1965. The court denied this motion on 22 October 1965 for being premature, it being unaware that such deposit in the
name of the deceased existed. 1
On 14 December 1965, the same sets of oppositors, Dr. Jaime Rosario and children, Antonio Jesus de Praga,
Natividad de Jesus and Fr. Lucio V. Garcia, petitioned the court for the immediate removal of the special
administratrix. It was their claim that the special administratrix and her deceased husband, Alfonso Precilla, 2 had
caused Gliceria A. del Rosario to execute a simulated and fraudulent deed of absolute sale dated 10 January 1961
allegedly conveying unto said spouses for the paltry sum of P30,000.00 ownership of 3 parcels of land and the
improvements thereon located on Quiapo and San Nicolas, Manila, with a total assessed value of P334,050.00.
Oppositors contended that since it is the duty of the administrator to protect and conserve the properties of the estate,
and it may become necessary that, an action for the annulment of the deed of sale land for recovery of the
aforementioned parcels of land be filed against the special administratrix, as wife and heir of Alfonso Precilla, the
removal of the said administratrix was imperative.
On 17 December 1965, the same oppositors prayed the court for an order directing the Special Administratrix to
deposit with the Clerk of Court all certificates of title belonging to the estate. It was alleged that on 22 October 1965,
or after her appointment, petitioner Consuelo Gonzales Vda. de Precilla, in her capacity as special administratrix of
the estate of the deceased Gliceria A. del Rosario, filed with Branch IV of the Court of First Instance of Manila a
motion for the issuance of new copies of the owner’s duplicates of certain certificates of title in the name of Gliceria
del Rosario, supposedly needed by her "in the preparation of the inventory" of the properties constituting the estate.
The motion having been granted, new copies of the owner’s duplicates of certificates appearing the name of Gliceria
del Rosario (among which were TCT Nos. 66201, 66202 and 66204) were issued on 15 November 1965. On 8
December 1965, according to the oppositors, the same special administratrix presented to the Register of Deeds the
deed of sale involving properties covered by TCT Nos. 66201, 66202 and 66204 supposedly executed by Gliceria del
Rosario on 10 January 1961 in favor of Alfonso Precilla, and, in consequence, said certificates of title were cancelled
and new certificates (Nos. 81735, 81736 and 81737) were issued in the name of Alfonso Precilla, married to
Consuelo S. Gonzales y Narciso.
On 25 August 1966, the Court issued an order admitting to probate the 1960 will of Gliceria A. del Rosario (Exhibit
"D"). In declaring the due execution of the will, the probate court took note that no evidence had been presented to
establish that the testatrix was not of sound mind when the will was executed; that the fact that she had prepared an
earlier will did not, prevent her from executing another one thereafter; that the fact that the 1956 will consisted of 12
pages whereas the 1960 testament was contained in one page does not render the latter invalid; that, the erasures
and alterations in the instrument were insignificant to warrant rejection; that the inconsistencies in the testimonies of
the instrumental witnesses which were noted by the oppositors are even indicative of their truthfulness. The probate
court, also considering that petitioner had already shown capacity to administer the properties of the estate and that
from the provisions of the will she stands as the person most concerned and interested therein, appointed said
petitioner regular administratrix with a bond for P50,000.00. From this order all the oppositors appealed, the case
being docketed in this Court as G.R. No. L-27200.
Then, on 13 September 1966, the probate court resolved the oppositors’ motion of 14 December 1965 for the removal
of the then special administratrix, as follows:jgc:chanrobles.com.ph
"It would seem that the main purpose of the motion to remove the special administratrix and to appoint another one in
her stead, is in order that an action may be filed against the special administratrix for the annulment of the deed of
sale executed by the decedent on January 10, 1961. Under existing documents, the properties sold pursuant to the
said deed of absolute sale no longer forms part of the estate. The alleged conflict of interest is accordingly not
between different claimants of the same estate. If it is desired by the movants that an action be filed by them to annul
the aforesaid deed absolute sale, it is not necessary that the special administratrix be removed and that another one
be appointed to file such action. Such a course of action would only produce confusion and difficulties in the
settlement of the estate. The movants may file the aforesaid proceedings, preferably in an independent action, to
secure the nullity of the deed of absolute even without leave of this court:"
As regard the motion of 17 December 1965 asking for the deposit in court of the titles in the name of the decedent,
the same was also denied, for the reason that if the movants were referring to the old titles, they could no longer be
produced, and if they meant the new duplicate copies thereof that were issued at the instance of the special
administratrix, there would be no necessity therefor, because they were already cancelled and other certificates were
issued in the name of Alfonso Precilla. This order precipitated the oppositors’ filing in this Court of a petition for
mandamus (G.R. No. L-26615, Rev. Fr. Lucio V. Garcia, Et. Al. v. Hon. Judge Conrado M. Vasquez, Et. Al.), which
was given due course on 6 October 1966.
On 15 December 1965, with that motion for removal pending in the court, the oppositors requested the Register of
Deeds of Manila to annotate a notice of lis pendens in the records of TCT Nos. 81735, 81736, and 81737 in the name
of Alfonso Precilla. And when said official refused to do so, they applied to the probate court (in Sp. Proc. No. 62618)
for an order to compel the Register of Deeds to annotate a lis pendens notice in the aforementioned titles contending
that the matter of removal and appointment of the administratrix, involving TCT Nos. 81735, 81736, and 81737, was
already before the Supreme Court. Upon denial of this motion on 12 November 1966, oppositors filed another
mandamus action, this time against the probate court and the Register of Deeds. The case was docketed and given
due course in this Court as G.R. No. L-26864.
Foremost of the questions to be determined here concerns the correctness of the order allowing the probate of the
1960 will.
The records of the probate proceeding fully establish the fact that the testatrix, Gliceria A. del Rosario, during her
lifetime, executed two wills: one on 9 June 1956 consisting of 12 pages and written in Spanish, a language that she
knew and spoke, witnessed by Messrs. Antonio Cabrera, Jesus Y. Ayala and Valentin Marquez, and acknowledged
before notary public Jose Ayala; and another dated 29 December 1960, consisting of 1 page and written in Tagalog,
witnessed by Messrs. Vicente Rosales, Francisco Decena, and Francisco Lopez and acknowledged before notary
public Remigio M. Tividad.
Called to testify on the due execution of the 1960 will, instrumental witnesses Decena, Lopez and Rosales uniformly
declared that they were individually requested by Alfonso Precilla (the late husband of petitioner special
administratrix) to witness the execution of the last will of Doña Gliceria A. del Rosario; that they arrived at the house of
the old lady at No. 2074 Azcarraga, Manila, one after the other, in the afternoon of 29 December 1960; that the
testatrix at the time was apparently of clear and sound mind, although she was being aided by Precilla when she
walked; 3 that the will, which was already prepared, was first read "silently" by the testatrix herself before she signed
it; 4 that he three witnesses thereafter signed the will in the presence of the testatrix and the notary public and of one
another. There is also testimony that after the testatrix and the witnesses to the will acknowledged the instrument to
be their voluntary act and deed, the notary public asked for their respective residence certificates which were handed
to him by Alfonso Precilla, clipped together; 5 that after comparing them with the numbers already written on the will,
the notary public filled in the blanks in the instrument with the date, 29 January 1960, before he affixed his signature
and seal thereto. 6 They also testified that on that occasion no pressure or influence has been exerted by any person
upon the testatrix to execute the will.
Of course, the interest and active participation of Alfonso Precilla in the signing of this 1960 will are evident from the
records. The will appeared to have been prepared by one who is not conversant with the spelling of Tagalog words,
and it has been shown that Alfonso Precilla is a Cebuano who speaks Tagalog with a Visayan accent. 7 The
witnesses to the will, two of whom are fellow Visayans, 8 admitted their relationship or closeness to Precilla. 9 It was
Precilla who instructed them to go to the house of Gliceria del Rosario on 29 December 1960 to witness an important
document, 10 and who took their residence certificates from them a few days before the will was signed. 11 Precilla
had met the notary public and witnesses Rosales and Lopez at the door of the residence of the old woman; he
ushered them to the room at the second floor where the signing of the document took place; 12 then he fetched
witness Decena from the latter’s haberdashery shop a few doors away and brought him to, the house the testatrix. 13
And when the will was actually executed Precilla was present. 14
The oppositors-appellants in the present case, however, challenging the correctness of the probate court’s ruling,
maintain that on 29 December 1960 the eyesight of Gliceria del Rosario was so poor and defective that she could not
have read the provisions of the will, contrary to the testimonies of witnesses Decena, Lopez and Rosales.
On this point, we find the declarations in court of Dr. Jesus V. Tamesis very material and illuminating. Said
ophthalmologist, whose expertise was admitted by both parties, testified, among other things, that when Doña Gliceria
del Rosario saw him for consultation on 11 March 1960 he found her left eye to have cataract (opaque lens), 15 and
that it was "above normal in pressure", denoting a possible glaucoma, a disease that leads to blindness 16 As to the
conditions of her right eye, Dr. Tamesis declared:jgc:chanrobles.com.ph
"Q But is there anything here in the entry appearing in the other documents Exhibits 3-B, 3-C and 3-D from which you
could inform the court as to the condition of the vision of the patient as to the right eve?
"A Under date of August 30, 1960, is the record of refraction. that is setting of glass by myself which showed that the
right eye with my prescription of glasses had a vision of 2 over 60 (20/60) and for the left eye with her correction 20
over 300 (20/300).
"Q In layman’s language, Doctor, what is the significance of that notation that the right had a degree of 20 over 60
(20/60)?
"A It meant that eye at least would be able to recognize objects or persons at a minimum distance of twenty feet.
"Q But would that grade enable the patient to read print?
"A Apparently that is only a record for distance vision, for distance sight, not for near."cralaw virtua1aw library
(pages 20-21, t.s.n., hearing of 23 March 1966)
The records also show that although Dr. Tamesis operated of the left eye of the decedent at the Lourdes Hospital on
8 August 1960; as of 23 August 1960, inspite of the glasses her vision was only "counting fingers," 17 at five feet. The
cross-examination of the doctor further elicited the following responses:jgc:chanrobles.com.ph
"Q After she was discharged from the hospital you prescribed lenses for her, or glasses?
"A After her discharge from the hospital, she was coming to my clinic for further examination and then sometime later
glasses were prescribed.
x x x
"Q And the glasses prescribed by you enabled her to read, Doctor?
"A As far as my record is concerned, with the glasses for the left eye which I prescribed — the eye which I operated
— she could see only forms but not read. That is on the left eye.
"Q How about the right eye?
"A The same, although the vision on the right eye is even better than the left eye." (pages 34. 85. t.s.n., hearing of 23
March 1966).
Then, confronted with a medical certificate (Exhibit H) issued by him on 29 November 1965 certifying that Gliceria del
Rosario was provided with aphakic lenses and "had been under medical supervision up to 1963 with apparently good
vision", the doctor had this to say:jgc:chanrobles.com.ph
"Q When yon said that she had apparently good vision you mean that she was able to read?
"A No, not necessarily, only able to go around, take care of herself and see. This I can tell you, this report was made
on pure recollections and I recall she was using her glasses although I recall also that we have to give her medicines
to improve her vision, some medicines to improve her identification some more.
x x x properly communicated to and understood by the handicapped testator, thus making them truly reflective of his
"Q What about the vision in the right eve, was that corrected by the glasses?
"A Yes, with the new prescription which I issued on 80 August 1960. It is in the clinical record.
"Q The vision in the right eye was corrected?
"A Yes That is the vision for distant objects."cralaw virtua1aw library
(pages 38, 39, 40. t.s.n., hearing of 23 March 1966).
The foregoing testimony of the ophthalmologist who treated the deceased and, therefore, has first hand knowledge of
the actual condition of her eyesight from August, 1960 up to 1963, fully establish the fact that notwithstanding the
operation and removal of the cataract in her left eye and her being fitted with aphakic lens (used by cataract patients),
her vision remained mainly for viewing distant objects and not for reading print. Thus, the conclusion is inescapable
that with the condition of her eyesight in August, 1960, and there is no evidence that it had improved by 29 December
1960, Gliceria del Rosario was incapable f reading, and could not have read the provisions of the will supposedly
signed by her on 29 December 1960. It is worth noting that the instrumental witnesses stated that she read the
instrument "silently" (t.s.n., pages 164-165). which is a conclusion and not a fact.
Against the background of defective eyesight of the alleged testatrix, the appearance of the will, Exhibit "D", acquires
striking significance. Upon its face, the testamentary provisions, the attestation clause and acknowledgment were
crammed together into a single sheet of paper, to much so that the words had to be written very close on the top,
bottom and two sides of the paper, leaving no margin whatsoever; the word "and" had to be written by the symbol" &",
apparently to save on space. Plainly, the testament was not prepared with any regard for the defective vision of Doña
Gliceria. Further, typographical errors like "HULINH" for "HULING" (last), "Alfonsa" ;or "Alfonso", "MERCRDRS" for
MERCEDES", "instrumental" for "Instrumental", and "acknowledged" for "acknowledge’’, remained uncorrected,
thereby indicating that execution thereof must have been characterized by haste. It is difficult to understand that so
important a document containing the final disposition of one’s worldly possessions should be embodied in an informal
and untidily written instrument; or that the glaring spelling errors should have escaped her notice if she had actually
retained the ability to read the purported will and had done so. The record is thus convincing that the supposed
testatrix could not have physically read or understood the alleged testament, Exhibit "D", and that its admission to
probate was erroneous and should be reversed.
That Doña Gliceria should be able to greet her guests on her birthday, arrange flowers and attend to kitchen tasks
shortly prior to the alleged execution of the testament Exhibit "D", as appears from the photographs, Exhibits "E" to
"E-1", in no way proves; that she was able to read a closely typed page, since the acts shown do not require vision at
close range. It must be remembered that with the natural lenses removed, her eyes had lost the power of adjustment
to near vision, the substituted glass lenses being rigid and uncontrollable by her. Neither is the signing of checks
(Exhibits "G" to "G-3") by her indicative of ability to see at normal reading distances. Writing or signing of one’s name,
when sufficiently practiced, becomes automatic, so that one need only to have a rough indication of the place where
the signature is to be affixed in order to be able to write it. Indeed, a close examination of the checks, amplified in the
photograph, Exhibit "O", et seq., reinforces the contention of oppositors that the alleged testatrix could not see at
normal reading distance: the signatures in the checks are written far above the printed base, lines, and the names of
the payees as well as the amounts written do not appear to be in the handwriting of the alleged testatrix, being in a
much firmer and more fluid hand than hers.
Thus, for all intents and purpose of the rules on probate, the deceased Gliceria del Rosario was, as appellant
oppositors contend, not unlike a blind testator, and the due execution of her will would have required observance of
the provisions of Article 808 of the Civil Code.
"ART. 808. If the testator is blind, the will shall be read to him twice; once, by one of the subscribing witnesses, and
again, by the notary public before whom the will is acknowledged."cralaw virtua1aw library
The rationale behind the requirement of reading the will to the testator if he is blind or incapable of reading the will
himself (as when he is illiterate), 18 is to make the provisions thereof known to him, so that he may be able to object if
they are not in accordance with his wishes. That the aim of the law is to insure that the dispositions of the will are
desire, is evidenced by the requirement that the will should be read to the latter, not only once but twice, by two
different persons, and that the witnesses have to act within the range of his (the testator’s) other senses. 19
In connection with the will here in question, there is nothing in the records to show that the above requisites have
been complied with. Clearly, as already stated, the 1960 will sought to be probated suffers from infirmity that affects
its due execution.
We also find merit in the complaint of oppositors Lucio V. Garcia, Et Al., against the denial by the probate court of
their petition for the removal of Consuelo Gonzales Vda. de Precilla as special administratrix of the estate of the
deceased Doña Gliceria (Petition, G.R. No. L-26615, Annex "B").
The oppositors’ petition was based allegedly on the existence in the special administratrix of an interest adverse to
that of the estate. It was their contention that through fraud her husband had caused the deceased Gliceria del
Rosario to execute a deed of sale, dated 10 January 1961, by virtue of which the latter purportedly conveyed unto
said Alfonso D. Precilla, married to Consuelo Gonzales y Narciso, the ownership of 3 parcels of land and the
improvements thereon, assessed at P334,050.00, for the sum of P30,000.00.
In denying the petition, the probate court, in its order of 13 September 1966 (Annex "P", Petition) reasoned out that
since the properties were already sold no longer form part of the estate. The conflict of interest would not be between
the estate and third parties, but among the different claimants of said properties, in which case, according to the court,
the participation of the special administratrix in the action for annulment that may be brought would not be necessary.
The error in this line of reasoning lies in the fact that what was being questioned was precisely the validity of the
conveyance or sale of the properties. In short, if proper, the action for annulment would have to be undertaken on
behalf of the estate by the special administratrix, affecting as it does the property or rights of the deceased. 20 For the
rule is that only where there is no special proceeding for the settlement of the estate of the deceased may the legal
heirs commence an action arising out of a right belonging to their ancestor. 21

There is no doubt that to settle the question of the due execution and validity of the deed of sale, an ordinary and
separate action would have to be instituted, the matter not falling within the competence of the probate court. 22
Considering the facts then before it, i.e., the alleged deed of sale having been executed by Gliceria del Rosario on 10
January 1961, when she was already practically blind; and that the consideration of P30,000.00 seems to be
unconscionably small for properties with a total assessed value of P334,050.00, there was likelihood that a case for
annulment might indeed be filed against the estate or heirs of Alfonso Precilla. And the administratrix, being the
widow and heir of the alleged transferee, cannot be expected to sue herself in an action to recover property that may
turn out to belong to the estate. 22 Not only this, but the conduct of the special administratrix in securing new copies
of the owner’s duplicates of TCT Nos. 66201, 66202, and 66204, without the court’s knowledge or authority, and on
the pretext that she needed them in the preparation of the inventory of the estate, when she must have already known
by then that the properties covered therein were already "conveyed" to her husband by the deceased, being the
latter’s successor, and having the contract bind the land through issuance of new titles in her husband’s name cannot
but expose her to the charge of unfitness or unsuitableness to discharge the trust, justifying her removal from the
administration of the estate.

With respect to the orders of the court a quo denying (1) the oppositors’ motion to require the Hongkong and
Shanghai Bank to report all withdrawals made against the funds of the deceased after 2 September 1965 and (2) the
motion for annotation of a lis pendens notice on TCT Nos. 81735, 81736 and 81737, the same are to be affirmed.

The probate court pointed out in its order of 22 October 1965 (Annex "H") that it could not have taken action on the
complaint against the alleged withdrawals from the bank deposits of the deceased, because as of that time the court
had not yet been apprised that such deposits exist. Furthermore, as explained by the special administratrix in her
pleading of 30 October 1965, the withdrawals referred to by the oppositors could be those covered by checks issued
in the name of Gliceria del Rosario during her lifetime but cleared only after her death. That explanation, which not
only appears plausible but has not been rebutted by the petitioners-oppositors, negates any charge of grave abuse in
connection with the issuance of the order here in question.

On the matter of lis pendens (G.R. No. L-26864), the provisions of the Rules of Court are clear: notice of the
pendency of an action may be recorded in the office of the register of deeds of the province in which the property is
situated, if the action affects "the title or the right of possession of (such) real property." 23 In the case at bar, the
pending action which oppositors seek to annotate in the records of TCT Nos. 81735, 81736, and 81737 is the
mandamus proceeding filed in this Court (G.R. No. L-26615). As previously discussed in this opinion, however, that
case is concerned merely with the correctness of the denial by the probate court of the motion for the removal of
Consuelo Gonzales Vda. de Precilla as special administratrix of the estate of the late Gliceria del Rosario. In short,
the issue in controversy there is simply the fitness or unfitness of said special administratrix to continue holding the
trust; it does not involve or affect at all the title to, or possession of, the properties covered by said TCT Nos. 81735,
81736 and 81737. Clearly, the pendency of such case (L-26615) is not an action that can properly be annotated in the
record of the titles to the properties.

FOR THE FOREGOING REASONS, the order of the court below allowing to probate the alleged 1960 will of Gliceria
A. del Rosario is hereby reversed and set aside. The petition in G.R. No. L-26615 being meritorious, the appealed
order is set aside and the court below is ordered to remove the administratrix, Consuelo Gonzales Vda. de Precilla,
and appoint one of the heirs intestate of the deceased Doña Gliceria Avelino del Rosario as special administrator for
the purpose of instituting action on behalf of her estate to recover the properties allegedly sold by her to the late
Alfonso D. Precilla. And in Case G.R. No. L-26864, petition is dismissed. No costs.
 FIRST DIVISION
G.R. No. L-38338 January 28, 1985
IN THE MATTER OF THE INTESTATE ESTATE OF ANDRES G. DE JESUS AND BIBIANA ROXAS DE JESUS,
SIMEON R. ROXAS & PEDRO ROXAS DE JESUS, petitioners,
vs.
ANDRES R. DE JESUS, JR., respondent.
Raul S. Sison Law Office for petitioners.
Rafael Dinglasan, Jr. for heir M. Roxas.
Ledesma, Guytingco Velasco and Associates for Ledesa and A. R. de Jesus.
GUTIERREZ, JR., J.:
This is a petition for certiorari to set aside the order of respondent Hon. Jose C. Colayco, Presiding Judge Court of
First Instance of Manila, Branch XXI disallowing the probate of the holographic Will of the deceased Bibiana Roxas de
Jesus.
The antecedent facts which led to the filing of this petition are undisputed.
After the death of spouses Andres G. de Jesus and Bibiana Roxas de Jesus, Special Proceeding No. 81503 entitled
"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.
On March 26, 1973, petitioner Simeon R. Roxas was appointed administrator. After Letters of Administration had
been granted to the petitioner, he delivered to the lower court a document purporting to be the holographic Will of the
deceased Bibiana Roxas de Jesus. On May 26, 1973, respondent Judge Jose Colayco set the hearing of the probate
of the holographic Win on July 21, 1973.
Petitioner Simeon R. Roxas testified that after his appointment as administrator, he found a notebook belonging to the
deceased Bibiana R. de Jesus and that on pages 21, 22, 23 and 24 thereof, a letter-win 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 win which I want to be respected although it is not written by a lawyer. ...
The testimony of Simeon R. Roxas was corroborated by the testimonies of Pedro Roxas de Jesus and Manuel Roxas
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.
Respondent Luz Roxas de Jesus filed a motion for reconsideration alleging inter alia that the alleged holographic Will
of the deceased Bibiana R. de Jesus was not dated as required by Article 810 of the Civil Code. She contends that
the law requires that the Will should contain the day, month and year of its execution and that this should be strictly
complied with.
On December 10, 1973, respondent Judge Colayco reconsidered his earlier order and disallowed the probate of the
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.
The only issue is whether or not the date "FEB./61 " appearing on the holographic Will of the deceased Bibiana Roxas
de Jesus is a valid compliance with the Article 810 of the Civil Code which reads:
ART. 810. A person may execute a holographic will which must be entirely written, dated,
and 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.
The petitioners contend 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 Win 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 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. The
respondent 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. The respondent further
contends that the petitioner 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.
We agree with the petitioner.
This will not be the first time that this Court departs from a strict and literal application of the statutory requirements
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 —
The underlying and fundamental objectives permeating the provisions of the law on wigs in
this Project consists in the liberalization of the manner of their execution with the end in view
of giving the testator more freedom in expressing his last wishes, but with sufficien
safeguards and restrictions to prevent the commission of fraud and the exercise of undue
and improper pressure and influence upon the testator.
This objective is in accord with the modem tendency with respect to the formalities in the
execution of wills. (Report of the Code Commission, p. 103)
In Justice Capistrano's concurring opinion in Heirs of Raymundo Castro v. Bustos (27 SCRA 327) he emphasized holographic Will is a valid compliance with Article 810 of the Civil Code, probate of the holographic Will should be
that: allowed under the principle of substantial compliance.

xxx xxx xxx WHEREFORE, the instant petition is GRANTED. The order appealed from is REVERSED and SET ASIDE and the
order allowing the probate of the holographic Will of the deceased Bibiana Roxas de Jesus is reinstated.
... The law has a tender regard for the will of the testator expressed in his last will and
testament on the ground that any disposition made by the testator is better than that which SO ORDERED.
the law can make. For this reason, intestate succession is nothing more than a disposition
based upon the presumed will of the decedent.

Thus, the prevailing policy is to require satisfaction of the legal requirements in order to guard against fraud and bad
faith but without undue or unnecessary curtailment of testamentary privilege Icasiano v. Icasiano, 11 SCRA 422). If a
Will has been executed in substantial compliance with the formalities of the law, and the possibility of bad faith and
fraud in the exercise thereof is obviated, said Win should be admitted to probate (Rey v. Cartagena 56 Phil. 282).
Thus,

xxx xxx xxx

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

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

The purpose of the solemnities surrounding the execution of Wills has been expounded by this Court in Abangan v.
Abanga 40 Phil. 476, where we ruled that:

The object of the solemnities surrounding the execution of wills is to close the door against
bad faith and fraud, to avoid substitution of wills and testaments and to guaranty their truth
and authenticity. ...

In particular, a complete date is required to provide against such contingencies as that of two competing Wills
executed on the same day, or of a testator becoming insane on the day on which a Will was executed (Velasco v.
Lopez, 1 Phil. 720). There is no such contingency in this case.

We have carefully reviewed the records of this case and found no evidence of bad faith and fraud in its execution nor
was there any substitution of Wins 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 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
 FIRST DIVISION The document Exhibit "C" was submitted to the National Bureau of Investigation for
examination. The NBI reported that the handwriting, the signature, the insertions and/or
additions and the initial were made by one and the same person. Consequently, Exhibit "C"
G.R. No. L-40207 September 28, 1984
was the handwriting of the decedent, Natividad K. Kalaw. The only question is whether the
win, Exhibit 'C', should be admitted to probate although the alterations and/or insertions or
ROSA K. KALAW, petitioner, additions above-mentioned were not authenticated by the full signature of the testatrix
vs. pursuant to Art. 814 of the Civil Code. The petitioner contends that the oppositors are
HON. JUDGE BENJAMIN RELOVA, Presiding Judge of the CFI of Batangas, Branch VI, Lipa City, and estopped to assert the provision of Art. 814 on the ground that they themselves agreed thru
GREGORIO K. KALAW, respondents. their counsel to submit the Document to the NBI FOR EXAMINATIONS. This is untenable.
The parties did not agree, nor was it impliedly understood, that the oppositors would be in
estoppel.
Leandro H. Fernandez for petitioner.

The Court finds, therefore, that the provision of Article 814 of the Civil Code is applicable to
Antonio Quintos and Jose M. Yacat for respondents. Exhibit "C". Finding the insertions, alterations and/or additions in Exhibit "C" not to be
authenticated by the full signature of the testatrix Natividad K. Kalaw, the Court will deny the
admission to probate of Exhibit "C".

MELENCIO-HERRERA, J.: WHEREFORE, the petition to probate Exhibit "C" as the holographic will of Natividad K.
Kalaw is hereby denied.
On September 1, 1971, private respondent GREGORIO K. KALAW, claiming to be the sole heir of his deceased
sister, Natividad K. Kalaw, filed a petition before the Court of First Instance of Batangas, Branch VI, Lipa City, for the SO ORDERED.
probate of her holographic Will executed on December 24, 1968.
From that Order, GREGORIO moved for reconsideration arguing that since the alterations and/or insertions were the
The holographic Will reads in full as follows: testatrix, the denial to probate of her holographic Will would be contrary to her right of testamentary disposition.
Reconsideration was denied in an Order, dated November 2, 1973, on the ground that "Article 814 of the Civil Code
being , clear and explicit, (it) requires no necessity for interpretation."
My Last will and Testament

In the name of God, Amen.
I Natividad K. Kalaw Filipino 63years of age, single, and a resident of Lipa City, being of sound and disposing mind
and memory, do hereby declare thus to be my last will and testament.
1. It is my will that I'll be burried in the cemetery of the catholic church of Lipa City. In accordance with the rights of
said Church, and that my executrix hereinafter named provide and erect at the expose of my state a suitable
monument to perpetuate my memory.
xxx xxx xxx
The holographic Will, as first written, named ROSA K. Kalaw, a sister of the testatrix as her sole heir. Hence, on
November 10, 1971, petitioner ROSA K. Kalaw opposed probate alleging, in substance, that the holographic Will
contained alterations, corrections, and insertions without the proper authentication by the full signature of the testatrix
as required by Article 814 of the Civil Code reading:
From that Order, dated September 3, 1973, denying probate, and the Order dated November 2, 1973 denying
reconsideration, ROSA filed this Petition for Review on certiorari on the sole legal question of whether or not
the original unaltered text after subsequent alterations and insertions were voided by the Trial Court for lack of
authentication by the full signature of the testatrix, should be probated or not, with her as sole heir.
Ordinarily, when a number of erasures, corrections, and interlineations made by the testator in a holographic Will litem
not been noted under his signature, ... the Will is not thereby invalidated as a whole, but at most only as respects the
particular words erased, corrected or interlined.1 Manresa gave an Identical commentary when he said "la omision de
la salvedad no anula el testamento, segun la regla de jurisprudencia establecida en la sentencia de 4 de Abril de
1895." 2
However, when as in this case, the holographic Will in dispute had only one substantial provision, which was altered
by substituting the original heir with another, but which alteration did not carry the requisite of full authentication by the
full signature of the testator, the effect must be that the entire Will is voided or revoked for the simple reason that
nothing remains in the Will after that which could remain valid. To state that the Will as first written should be given
efficacy is to disregard the seeming change of mind of the testatrix. But that change of mind can neither be given
effect because she failed to authenticate it in the manner required by law by affixing her full signature,

Art. 814. In case of any insertion, cancellation, erasure or alteration in a holographic will the
testator must authenticate the same by his full signature.
ROSA's position was that the holographic Will, as first written, should be given effect and probated so that she could
be the sole heir thereunder.
The ruling in Velasco, supra, must be held confined to such insertions, cancellations, erasures or alterations in a
holographic Will, which affect only the efficacy of the altered words themselves but not the essence and validity of the
Will itself. As it is, with the erasures, cancellations and alterations made by the testatrix herein, her real intention
cannot be determined with certitude. As Manresa had stated in his commentary on Article 688 of the Spanish Civil
Code, whence Article 814 of the new Civil Code was derived:

After trial, respondent Judge denied probate in an Order, dated September 3, 197 3, reading in part: ... No infringe lo dispuesto en este articulo del Codigo (el 688) la sentencia que no declara la
nulidad de un testamento olografo que contenga palabras tachadas, enmendadas o entre
renglones no salvadas por el testador bajo su firnia segun previene el parrafo tercero del
 mismo, porque, en realidad, tal omision solo puede afectar a la validez o eficacia de tales
palabras, y nunca al testamento mismo, ya por estar esa disposicion en parrafo aparte de
aquel que determine las condiciones necesarias para la validez del testamento olografo, ya
porque, de admitir lo contrario, se Ilegaria al absurdo de que pequefias enmiendas no
salvadas, que en nada afectasen a la parte esencial y respectiva del testamento, vinieran a
anular este, y ya porque el precepto contenido en dicho parrafo ha de entenderse en
perfecta armonia y congruencia con el art. 26 de la ley del Notariado que declara nulas las
adiciones apostillas entrerrenglonados, raspaduras y tachados en las escrituras matrices,
siempre que no se salven en la forma prevenida, paro no el documento que las contenga, y
con mayor motivo cuando las palabras enmendadas, tachadas, o entrerrenglonadas no
tengan importancia ni susciten duda alguna acerca del pensamiento del testador, o
constituyan meros accidentes de ortografia o de purez escrituraria, sin trascendencia
alguna(l).

Mas para que sea aplicable la doctrina de excepcion contenida en este ultimo fallo, es
preciso que las tachaduras, enmiendas o entrerrenglonados sin salvar saan de pala bras
que no afecter4 alteren ni uarien de modo substancial la express voluntad del testador
manifiesta en el documento. Asi lo advierte la sentencia de 29 de Noviembre de 1916, que
declara nulo un testamento olografo por no estar salvada por el testador la enmienda del
guarismo ultimo del año en que fue extendido3(Emphasis ours).

WHEREFORE, this Petition is hereby dismissed and the Decision of respondent Judge, dated September 3, 1973, is
hereby affirmed in toto. No costs.

SO ORDERED.
 EN BANC 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.
G.R. No. L-26317 January 29, 1927
With reference to the said cancellation, it may be stated that there is positive proof, not denied, which was accepted
by the lower court, that will in question had been cancelled in 1920. The law does not require any evidence of the
Estate of Miguel Mamuyac, deceased.
revocation or cancellation of a will to be preserved. It therefore becomes difficult at times to prove the revocation or
FRANCISCO GAGO, petitioner-appellant,
cancellation of wills. The fact that such cancellation or revocation has taken place must either remain unproved of be
vs.
inferred from evidence showing that after due search the original will cannot be found. Where a will which cannot be
CORNELIO MAMUYAC, AMBROSIO LARIOSA,
found is shown to have been in the possession of the testator, when last seen, the presumption is, in the absence of
FELICIANA BAUZON, and CATALINA MAMUYAC, opponents-appellees.
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
Nicanor Tavora for appellant. such will has been destroyed by any other person without the knowledge or authority of the testator. The force of the
Jose Rivera for appellees. 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.
JOHNSON, J.:

The purpose of this action was to obtain the probation of a last will and testament of Miguel Mamuyac, who died on
the 2d day of January, 1922, in the municipality of Agoo of the Province of La Union. It appears from the record that
on or about the 27th day of July, 1918, the said Miguel Mamuyac executed a last will and testament (Exhibit A). In the
month of January, 1922, the said Francisco Gago presented a petition in the Court of First Instance of the Province of
La Union for the probation of that will. The probation of the same was opposed by Cornelio Mamuyac, Ambrosio
Lariosa, Feliciana Bauzon, and Catalina Mamuyac (civil cause No. 1144, Province of La Union). After hearing all of
the parties the petition for the probation of said will was denied by the Honorable C. M. Villareal on the 2d day of
November, 1923, upon the ground that the deceased had on the 16th day of April, 1919, executed a new will and
testament.
On the 21st day of February, 1925, the present action was commenced. Its purpose was to secure the probation of
the said will of the 16th day of April, 1919 (Exhibit 1). To said petition Cornelio Mamuyac, Ambrosio Lariosa, Feliciana
Bauzon, and Catalina Mamuyac presented their oppositions, alleging (a) that the said will is a copy of the second will
and testament executed by the said Miguel Mamuyac; (b) that the same had been cancelled and revoked during the
lifetime of Miguel Mamuyac and (c) that the said will was not the last will and testament of the deceased Miguel
Mamuyac.
In view of the fat that the original will of 1919 could not be found after the death of the testator Miguel Mamuyac and in
view of the positive proof that the same had been cancelled, we are forced to the conclusion that the conclusions of
the lower court are in accordance with the weight of the evidence. In a proceeding to probate a will the burden of
proofs is upon the proponent clearly to establish not only its execution but its existence. Having proved its execution
by the proponents, the burden is on the contestant to show that it has been revoked. In a great majority of instances
in which wills are destroyed for the purpose of revoking them there is no witness to the act of cancellation or
destruction and all evidence of its cancellation perishes with the testator. Copies of wills should be admitted by the
courts with great caution. When it is proven, however, by proper testimony that a will was executed in duplicate and
each copy was executed with all the formalities and requirements of the law, then the duplicate may be admitted in
evidence when it is made to appear that the original has been lost and was not cancelled or destroyed by the testator.
(Borromeo vs. Casquijo, G.R. No. L-26063.)1
After a careful examination of the entire record, we are fully persuaded that the will presented for probate had been
cancelled by the testator in 1920. Therefore the judgment appealed from is hereby affirmed. And without any finding
as to costs, it is so ordered.

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

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

The appellant contends that the lower court committed an error in not finding from the evidence that the will in
question had been executed with all the formalities required by the law; that the same had been revoked and
 SECOND DIVISION advised that a separate proceeding for the probate of the alleged will would be the appropriate vehicle to thresh out
the matters raised by the petitioners.
G.R. No. 76464 February 29, 1988
Significantly, the appellate court while finding as inconclusive the matter on whether or not the document or papers
allegedly burned by the househelp of Adriana, Guadalupe Maloto Vda. de Coral, upon instructions of the testatrix,
TESTATE ESTATE OF THE LATE ADRIANA MALOTO, ALDINA MALOTO CASIANO, CONSTANCIO MALOTO,
was indeed the will, contradicted itself and found that the will had been revoked. The respondent court stated that the
PURIFICACION MIRAFLOR, ROMAN CATHOLIC CHURCH OF MOLO, AND ASILO DE MOLO, petitioners,
presence of animus revocandi in the destruction of the will had, nevertheless, been sufficiently proven. The appellate
vs.
court based its finding on the facts that the document was not in the two safes in Adriana's residence, by the testatrix
COURT OF APPEALS, PANFILO MALOTO AND FELINO MALOTO, respondents.
going to the residence of Atty. Hervas to retrieve a copy of the will left in the latter's possession, and, her seeking the
services of Atty. Palma in order to have a new will drawn up. For reasons shortly to be explained, we do not view such
facts, even considered collectively, as sufficient bases for the conclusion that Adriana Maloto's will had been
effectively revoked.
SARMIENTO, J.:
There is no doubt as to the testamentary capacity of the testatrix and the due execution of the will. The heart of the
case lies on the issue as to whether or not the will was revoked by Adriana.
This is not the first time that the parties to this case come to us. In fact, two other cases directly related to the present
one and involving the same parties had already been decided by us in the past. In G.R. No. L-30479, 1 which was a
petition for certiorari and mandamus instituted by the petitioners herein, we dismissed the petition ruling that the more The provisions of the new Civil Code pertinent to the issue can be found in Article 830.
appropriate remedy of the petitioners is a separate proceeding for the probate of the will in question. Pursuant to the
said ruling, the petitioners commenced in the then Court of First Instance of Iloilo, Special Proceeding No. 2176, for
Art. 830. No will shall be revoked except in the following cases:
the probate of the disputed will, which was opposed by the private respondents presently, Panfilo and Felino both
surnamed Maloto. The trial court dismissed the petition on April 30, 1970. Complaining against the dismissal, again,
the petitioners came to this Court on a petition for review by certiorari. 2 Acting on the said petition, we set aside the (1) By implication of law; or
trial court's order and directed it to proceed to hear the case on the merits. The trial court, after hearing, found the will
to have already been revoked by the testatrix. Adriana Maloto, and thus, denied the petition. The petitioners appealed
(2) By some will, codicil, or other writing executed as provided in case of wills: or
the trial court's decision to the Intermediate Appellate Court which, on June 7, 1985, affirmed the order. The
petitioners' motion for reconsideration of the adverse decision proved to be of no avail, hence, this petition.
(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
For a better understanding of the controversy, a factual account would be a great help.
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
On October 20, 1963, Adriana Maloto died leaving as heirs her niece and nephews, the petitioners Aldina Maloto- therewith, if its contents, and due execution, and the fact of its unauthorized destruction,
Casiano and Constancio, Maloto, and the private respondents Panfilo Maloto and Felino Maloto. Believing that the cancellation, or obliteration are established according to the Rules of Court. (Emphasis
deceased did not leave behind a last will and testament, these four heirs commenced on November 4, 1963 an Supplied.)
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
It is clear that the physical act of destruction of a will, like burning in this case, does not per se constitute an effective
to be exact on February 1, 1964, the parties — Aldina, Constancio, Panfilo, and Felino — executed an agreement of
revocation, unless the destruction is coupled with animus revocandi on the part of the testator. It is not imperative that
extrajudicial settlement of Adriana's estate. The agreement provided for the division of the estate into four equal parts
the physical destruction be done by the testator himself. It may be performed by another person but under theexpress
among the parties. The Malotos then presented the extrajudicial settlement agreement to the trial court for approval
direction and in the presence of the testator. Of course, it goes without saying that the document destroyed must be
which the court did on March 21, 1964. That should have signalled the end of the controversy, but, unfortunately, it
the will itself.
had not.

In this case, while animus revocandi or the intention to revoke, may be conceded, for that is a state of mind, yet that
Three years later, or sometime in March 1967, Atty. Sulpicio Palma, a former associate of Adriana's counsel, the late
requisite alone would not suffice. "Animus revocandi is only one of the necessary elements for the effective revocation
Atty. Eliseo Hervas, discovered a document entitled "KATAPUSAN NGA PAGBUBULAT-AN (Testamento)," dated
of a last will and testament. The intention to revoke must be accompanied by the overt physical act of burning,
January 3,1940, and purporting to be the last will and testament of Adriana. Atty. Palma claimed to have found the
tearing, obliterating, or cancelling the will carried out by the testator or by another person in his presence and under
testament, the original copy, while he was going through some materials inside the cabinet drawer formerly used by
his express direction. There is paucity of evidence to show compliance with these requirements. For one, the
Atty. Hervas. The document was submitted to the office of the clerk of the Court of First Instance of Iloilo on April 1,
document or papers burned by Adriana's maid, Guadalupe, was not satisfactorily established to be a will at all, much
1967. Incidentally, while Panfilo and Felino are still named as heirs in the said will, Aldina and Constancio are
less the will of Adriana Maloto. For another, the burning was not proven to have been done under the express
bequeathed much bigger and more valuable shares in the estate of Adriana than what they received by virtue of the
direction of Adriana. And then, the burning was not in her presence. Both witnesses, Guadalupe and Eladio, were one
agreement of extrajudicial settlement they had earlier signed. The will likewise gives devises and legacies to other
in stating that they were the only ones present at the place where the stove (presumably in the kitchen) was located in
parties, among them being the petitioners Asilo de Molo, the Roman Catholic Church of Molo, and Purificacion
which the papers proffered as a will were burned.
Miraflor.

The respondent appellate court in assessing the evidence presented by the private respondents as oppositors in the
Thus, on May 24, 1967, Aldina and Constancio, joined by the other devisees and legatees named in the will, filed in
trial court, concluded that the testimony of the two witnesses who testified in favor of the will's revocation appear
Special Proceeding No. 1736 a motion for reconsideration and annulment of the proceedings therein and for the
"inconclusive." We share the same view. Nowhere in the records before us does it appear that the two witnesses,
allowance of the will When the trial court denied their motion, the petitioner came to us by way of a petition for
Guadalupe Vda. de Corral and Eladio Itchon, both illiterates, were unequivocably positive that the document burned
certiorari and mandamus assailing the orders of the trial court . 3 As we stated earlier, we dismissed that petition and
was indeed Adriana's will. Guadalupe, we think, believed that the papers she destroyed was the will only because,
according to her, Adriana told her so. Eladio, on the other hand, obtained his information that the burned document
was the will because Guadalupe told him so, thus, his testimony on this point is double hearsay.

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

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

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

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

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

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

This Decision is IMMEDIATELY EXECUTORY.

SO ORDERED.
 EN BANC
G.R. No. L-2538 September 21, 1951
Testate Estate of the Deceased MARIANO MOLO Y LEGASPI. JUANA JUAN VDA. DE MOLO, petitioner-
appellee,
vs.
LUZ, GLICERIA and CORNELIO MOLO, oppositors-appellants.
Claro M. Recto and Serafin C. Dizon for appellants.
Delgado & Flores for appellee.
BAUTISTA ANGELO, J.:
This is an appeal from an order of the Court of First Instance of Rizal admitting to probate the last will and testament
of the deceased Mariano Molo y Legaspi executed on August 17, 1918. The oppositors-appellants brought the case
on appeal to this Court for the reason that the value of the properties involved exceeds P50,000.
Mariano Molo y Legaspi died on January 24, 1941, in the municipality of Pasay, province of Rizal, without leaving any
forced heir either in the descending or ascending line. He was survived, however, by his wife, the herein 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.
Mariano Molo y Legaspi left two wills, one executed on August 17, 1918, (Exhibit A) and another executed on June
20, 1939. (Exhibit I). The later will executed in 1918.
On February 7, 1941, Juana Juan Vda. de Molo, filed in the Court of First Instance of Rizal a petition, which was
docketed as special proceeding No. 8022 seeking the probate of the will executed by the deceased on June 20, 1939.
There being no opposition, the will was probated. However, upon petition filed by the herein oppositors, the order of
the court admitting the will to probate was set aside and the case was reopened. After hearing, at which both parties
presented their evidence, the court rendered decision denying the probate of said will on the ground that the petitioner
failed to prove that the same was executed in accordance with law.
In view of the disallowance of the will executed on June 20, 1939, the widow on February 24, 1944, filed another
petition for the probate of the will executed by the deceased on August 17, 1918, which was docketed as special
proceeding No. 56, in 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.
Consequently, a petition for reconstitution was filed, but the same was found to be impossible because neither
petitioner nor oppositors could produce the copies required for its reconstitution. As a result, petitioner filed a new
petition on September 14, 1946, similar to the one destroyed, to which the oppositors filed an opposition based on the
same grounds as those contained in their former opposition. Then, the case was set for trial, and on May 28, 1948,
the court issued an order admitting the will to probate already stated in the early part of this decision. From this order
the oppositors appealed assigning six errors, to wit.
I. The probate court erred in not holding that the present petitioner voluntarily and deliberately frustrated
the probate of the will dated June 20, 1939, in special proceeding No. 8022, in order to enable her to
obtain the probate of another alleged will of Molo dated 191.
II. The court a quo erred in not holding that the petitioner is now estopped from seeking the probate of
Molo's alleged will of 1918.
III. The lower court erred in not holding that petitioner herein has come to court with "unclean hands" and
as such is not entitled to relief.
IV. The probate court erred in not holding that Molo's alleged will of August 17, 1918 was not executed in
the manner required by law.
V. The probate court erred in not holding that the alleged will of 1918 was deliberately revoked by Molo
himself.
VI. The lower court erred in not holding that Molo's will of 1918 was subsequently revoked by the
decedent's will of 1939.
In their first assignment of error, counsel for oppositors contend that the probate court erred in not holding that the
petitioner voluntarily and deliberately frustrated the probate of the will dated June 20, 1939, in order to enable her to
obtain the probate of the will executed by the deceased on August 17, 1918, pointing out certain facts and
circumstances with their opinion indicate that petitioner connived with the witness Canuto Perez in an effort to defeat
and frustrate the probate of the 1939 will because of her knowledge that said will intrinsically defective in that "the one
and only testamentory disposition thereof was a "disposicion captatoria". These circumstances, counsel for the
appellants contend, constitute a series of steps deliberately taken by petitioner with a view to insuring the realization
of her plan of securing the probate of the 1918 will which she believed would better safeguard her right to inherit from
the decease.
These imputations of fraud and bad faith allegedly committed in connection with special proceedings No. 8022, now
closed and terminated, are vigorously met by counsel for petitioner who contends that to raise them in these
proceedings which are entirely new and distinct and completely independent from the other is improper and unfair as
they find no support whatsoever in any evidence submitted by the parties in this case. They are merely based on the
presumptions and conjectures not supported by any proof. For this reason, counsel, contends, the lower court was
justified in disregarding them and in passing them sub silentio in its decision.
A careful examination of the evidence available in this case seems to justify this contention. There is indeed no
evidence which may justify the insinuation that petitioner had deliberately intended to frustrate the probate of the 1939
will of the deceased to enable her to seek the probate of another will other than a mere conjecture drawn from the
apparently unexpected testimony of Canuto Perez that he went out of the room to answer an urgent call of nature
when Artemio Reyes was signing the will and the failure of petitioner later to impeach the character of said witness in
spite of the opportunity given her by the court to do so. Apart from this insufficiency of evidence, the record discloses
that this failure has been explained by petitioner when she informed the court that she was unable to impeach the
character of her witness Canuto Perez because of her inability to find witnesses who may impeach him, and this
explanation stands uncontradicted. Whether this explanation is satisfactory or not, it is not now, for us to determine. It
is an incident that comes within the province of the former case. The failure of petitioner to present the testimony of
Artemio Reyes at the hearing has also been explained, and it appears that petitioner has filed because his
whereabouts could not be found. Whether this is true or not is also for this Court to determine. It is likewise within the
province and function of the court in the former case. And the unfairness of this imputation becomes more glaring
when we stock of the developments that had taken place in these proceedings which show in bold relief the true
nature of the conduct, behavior and character of the petitioner so bitterly assailed and held in disrepute by the
oppositors.
It should be recalled that the first petition for the probate of the will executed on June 20, 1939, was filed on February
7, 1941, by the petitioner. There being no opposition, the will was probated. Subsequently, however, upon petition of
the herein oppositors, the order of the court admitting said will to probate was set aside, over the vigorous opposition
of the herein petitioner, and the case was reopened. The reopening was ordered because of the strong opposition of
the oppositors who contended that he will had not been executed as required by law. After the evidence of both
parties had been presented, the oppositors filed an extensive memorandum wherein they reiterated their view that the
will should be denied probate. And on the strenght of this opposition, the court disallowed the will.
If petitioner then knew that the 1939 will was inherently defective and would make the testamentary disposition in her
favor invalid and ineffective, because it is a "disposicion captatoria", which knowledge she may easily acquire through
consultation with a lawyer, there was no need her to go through the order of filing the petition for the probate of the
will. She could accomplish her desire by merely suppressing the will or tearing or destroying it, and then take steps
leading to the probate of the will executed in 1918. But for her conscience was clear and bade her to take the only
proper step possible under the circumstances, which is to institute the necessary proceedings for the probate of the
1939 will. This she did and the will was admitted to probate. But then the unexpected happened. Over her vigorous
opposition, the herein appellants filed a petition for reopening, and over her vigorous objection, the same was granted
and the case was reopened. Her motion for reconsideration was denied. Is it her fault that the case was reopened? Is
it her fault that the order admitting the will to probate was set aside? That was a contingency which petitioner never
expected. Had appellants not filed their opposition to the probate of the will and had they limited their objection to the
intrinsic validity of said will, their plan to defeat the will and secure the intestacy of the deceased would have perhaps
been accomplished. But they failed in their strategy. If said will was denied probate it is due to their own effort. It is
now unfair to impute bad faith petitioner simply because she exerted every effort to protect her own interest and
prevent the intestacy of the deceased to happen.
Having reached the foregoing conclusions, it is obvious that the court did not commit the second and third errors
imputed to it by the counsel for appellants. Indeed, petitioner cannot be considered guilty or estoppel which would
prevent her from seeking the probate of the 1918 will simply because of her effort to obtain the allowance of the 1939
will has failed considering that in both the 1918 and 1939 wills she was in 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 being zealous in protecting her interest.
The next contention of appellants refers to the revocatory clause contained in 1939 will of the deceased which was
denied probate. They contend that, notwithstanding the disallowance of said will, the revocatory clause is valid and
still has the effect of nullifying the prior of 1918.
Counsel for petitioner meets this argument by invoking the doctrine laid down in the case of Samson vs. Naval, (41
Phil., 838). He contends that the facts involved in that case are on all fours with the facts of this case. Hence, the
doctrine is that case is here controlling.
There is merit in this contention. We have carefully read the facts involved in the Samson case we are indeed
impressed by their striking similarity with the facts of this case. We do not need to recite here what those facts are; it
is enough to point out that they contain many points and circumstances in common. No reason, therefore, is seen by
the doctrine laid down in that case (which we quote hereunder) should not apply and control the present case.
A subsequent will, containing a clause revoking a previous will, having been disallowed, for the reason
that it was not executed in conformity with the provisions of section 618 of the Code of Civil Procedure as
to the making of wills, cannot produce the effect of annulling the previous will, inasmuch as said
revocatory clause is void. (41 Phil., 838.)
Apropos of this question, counsel for oppositors make the remark that, while they do not disagree with the soundness
of the ruling laid down in the Samson case, there is reason to abandon said ruling because it is archaic or antiquated
and runs counter to the modern trend prevailing in American jurisprudence. They maintain that said ruling is no longer
controlling but merely represents the point of view of the minority and should, therefore, be abandoned, more so if we
consider the fact that section 623 of our Code of Civil Procedure, which governs the revocation of wills, is of American
origin and as such should follow the prevailing trend of the majority view in the United States. A long line of authorities
is cited in support of this contention. And these authorities hold the view, that "an express revocation is immediately
effective upon the execution of the subsequent will, and does not require that it first undergo the formality of a probate
proceeding". (p. 63, appellants' brief .
While they are many cases which uphold the view entertained by counsel for oppositors, and that view appears to be
in controlling the states where the decisions had been promulgated, however, we are reluctant to fall in line with the
assertion that is now the prevailing view in the United States. In the search we have made of American authorities on
the subject, we found ourselves in a pool of conflicting opinions perhaps because of the peculiar provisions contained
in the statutes adopted by each State in the subject of revocation of wills. But the impression we gathered from a
review and the study of the pertinent authorities is that the doctrine laid down in the Samson case is still a good law.
On page 328 of the American Jurisprudence Vol. 57, which is a revision Published in 1948, we found the following
passages which in our opinion truly reflect the present trend of American jurisprudence on this matter affecting the
revocation of wills:
SEC. 471. Observance of Formalities in Execution of Instrument. — Ordinarily, statutes which permit the
revocation of a will by another writing provide that to be effective as a revocation, the writing must be
executed with the same formalities which are required to be observed in the execution of a will.
Accordingly, where, under the statutes, attestation is necessary to the making of a valid will, an
unattested non testamentary writing is not effective to revoke a prior will. It has been held that a writing
fails as a revoking instrument where it is not executed with the formalities requisite for the execution of a
will, even though it is inscribed on the will itself, although it may effect a revocation by cancellation or
obliteration of the words of the will. A testator cannot reserve to himself the power to modify a will by a
written instrument subsequently prepared but not executed in the manner required for a will.
SEC, 472. Subsequent Unexecuted, Invalid, or Ineffective Will or Codicil. — A will which is invalid
because of the incapacity of the testator, or of undue influence can have no effect whatever as a revoking
will. Moreover, a will is not revoked by the unexecuted draft of a later one. Nor is a will revoked by a
defectively executed will or codicil, even though the latter contains a clause expressly revoking the former
will, in a jurisdiction where it is provided by a controlling statute that no writing other than a testamentary
instrument is sufficient to revoke a will, for the simple reason that there is no revoking will. Similarly where
the statute provides that a will may be revoked by a subsequent will or other writing executed with the
same formalities as are required in the execution of wills, a defectively executed will does not revoke a
prior will, since it cannot be said that there is a writing which complies with the statute. Moreover, a will or
codicil which, on account of the manner in which it is executed, is sufficient to pass only personally does
not affect dispositions of real estate made by a former will, even though it may expressly purport to do so.
The intent of the testator to revoke is immaterial, if he has not complied with the statute. (57 Am. Jur.,
328, 329.)
We find the same opinion in the American Law Reports, Annotated, edited in 1939. On page 1400, Volume 123, there
appear many authorities on the "application of rules where second will is invalid", among which a typical one is the
following:
It is universally agreed that where the second will is invalid on account of not being executed in
accordance with the provisions of the statute, or where the testator who has not sufficient mental capacity
to make a will or the will is procured through undue influence, or the such, in other words, where the
second will is really no will, it does not revoke the first will or affect it in any manner. Mort vs. Baker
University (193-5) 229 Mo. App., 632, 78 S.W. (2d), 498.
These treaties cannot be mistaken. They uphold the view on which the ruling in the Samson case is predicated. They
reflect the opinion that this ruling is sound and good and for this reason, we see no justification for abondoning it as
now suggested by counsel for the oppositors.
It is true that our law on the matter (sec. 623, Code Civil Procedure) provides that a will may be some will, codicil, or
other writing executed as proved in case of wills" but it cannot be said that the 1939 will should be regarded, not as a
will within the meaning of said word, but as "other writing executed as provided in the case of wills", simply because it
was denied probate. And even if it be regarded as any other writing within the meaning of said clause, there is
authority for holding that unless said writing is admitted to probate, it cannot have the effect of revocation. (See 57
Am. Jur. pp. 329-330).
But counsel for oppositors contemned that, 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 recovatory clause contained said will, himself
deliberately destroyed the original of the 1918 will, and for that reason the will submitted by petitioner for probate in The remaining question to be determined refers to the sufficiency of the evidence to prove the due execution of the
these proceedings is only a duplicate of said original. will.

There is no evidence which may directly indicate that the testator deliberately destroyed the original of the 1918 will The will in question was attested, as required by law, by three witnesses, Lorenzo Morales, Rufino Enriquez, and
because of his knowledge of the revocatory clause contained in the will he executed in 1939. The only evidence we Angel Cuenca. The first two witnesses died before the commencement of the present proceedings. So the only
have is that when the first will was executed in 1918, Juan Salcedo, who prepared it, gave the original and copies to instrumental witness available was Angel Cuenca and under our law and precedents, his testimony is sufficient to
the testator himself and apparently they remained in his possession until he executed his second will in 1939. And prove the due execution of the will. However, petitioner presented not only the testimony of Cuenca but placed on the
when the 1939 will was denied probate on November 29, 1943, and petitioner was asked by her attorney to look for witness stand Juan Salcedo, the notary public who prepared and notarized the will upon the express desire and
another will, she found the duplicate copy (Exhibit A) among the papers or files of the testator. She did not find the instruction of the testator, The testimony of these witnesses shows that the will had been executed in the manner
original. 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.
If it can be inferred that the testator deliberately destroyed the 1918 will because of his knowledge of the revocatory
clause of the 1939 will, and it is true that he gave a duplicate copy thereof to his wife, the herein petitioner, the most Wherefore, the order appealed from is hereby affirmed, with costs against the appellants.1âwphïl.nêt
logical step for the testator to take is to recall said duplicate copy in order that it may likewise be destroyed. But this
was not done as shown by the fact that said duplicate copy remained in the possession of petitioner. It is possible that
because of the long lapse of twenty-one (21) years since the first will was executed, the original of the will had been
misplaced or lost, and forgetting that there was a copy, the testator deemed it wise to execute another will containing
exactly the same testamentary dispositions. Whatever may be the conclusion we may draw from this chain of
circumstances, the stubborn fact is that there is no direct evidence of voluntary or deliberate destruction of the first will
by the testator. This matter cannot be inference or conjectur.

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 same reason. The doctrine is n 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
efficacy of a new disposition intended to be substituted, the revocation will be conditional and dependent
upon the efficacy 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 a new testamentary disposition upon
whose validity the revocation depends, is equivalent to the non-fulfillment of a suspensive conditions, and
hence prevents the revocation of the original will. But a mere intent to make at some time a will in the
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. 253.)

We hold 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 this intention is clearly manifest when he executed two wills on two different occasion and
instituted his wife as his universal heir. There can therefore be no mistake as to his intention of dying testate.