1

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.
D E C I S I O N
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 Certiorari
2
of the June 15, 2006
Decision
3
of the Court of Appeals (CA) in CA-G.R. CV No. 80979 which
reversed the September 30, 2003 Decision
4
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 Resolution
6
which
denied the Motion for Reconsideration thereto.
Petitioners call us to reverse the CAs 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 3
8
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 Wills due execution by affixing their signatures
below its attestation clause
10
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:
x x x x
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;
x x x x
[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[]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[]a Nicomeda Regala in accordance with her
testament as stated in my testament. x x x
12

The filial relationship of Lorenzo with Paciencia remains undisputed.
Lorenzo is Paciencias nephew whom she treated as her own son.
Conversely, Lorenzo came to know and treated Paciencia as his own
mother.
13
Paciencia lived with Lorenzos 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 petition
14
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, 2000
15
allowing 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 fathers (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
Limpins 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 opposition
22
to Lorenzos petition. Antonio averred
that the properties subject of Paciencias 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
Opposition
24
contending that Paciencias 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 Lorenzos 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

2

Later still on September 26, 2000, petitioners filed an Amended
Opposition
28
asking the RTC to deny the probate of Paciencias 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 Recommendation
29
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 Order
30
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 latters 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 fathers
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 Paciencias 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 Paciencias 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 Paciencias
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, Lorenzos wife and his children were staying in the same
house.
38
She served in the said household from 1980 until Paciencias
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 latters 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 Antonios 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
mothers 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 Decision
56
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 RTCs 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 reconsideration
61
but the motion was denied by
the CA in its Resolution
62
dated August 31, 2006.
Hence, this petition.
3

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 PACIENCIAS WILL
DESPITE RESPONDENTS 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 EXECUTED
63

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
Reconsideration
66
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
Paciencias 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. Limpins testimony as to the soundness of
mind of Paciencia when the latter went to Judge Limpins house and
voluntarily executed the Will. "The testimony of subscribing witnesses to
a Will concerning the testators 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.
4

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 CAs 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 Paciencias 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
Lorenzos 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 Paciencias
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.
71
Furthermore, "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 Paciencias 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 daughters 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 Paciencias Will may be allowed on the basis of Dra. Limpins
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
1wphi1
5

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 Lorenzos 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.
G.R. No. L-6801 March 14, 1912
JULIANA BAGTAS, plaintiffs-appellee,
vs.
ISIDRO PAGUIO, ET AL., defendants-appellants.
Salas and Kalaw for appellants.
Jose Santiago for appellee.
TRENT, J.:
This is an appeal from an order of the Court of First Instance of the
Province of Bataan, admitting to probate a document which was
offered as the last will and testament of Pioquinto Paguio y Pizarro. The
will purports to have been executed in the pueblo of Pilar, Province of
Bataan, on the 19th day of April, 1908. The testator died on the 28th of
September, 1909, a year and five months following the date of the
execution of the will. The will was propounded by the executrix,
Juliana Bagtas, widow of the decedent, and the opponents are a son
and several grandchildren by a former marriage, the latter being the
children of a deceased daughter.
The basis of the opposition to the probation of the will is that the same
was not executed according to the formalities and requirements of
the law touching wills, and further that the testator was not in the full of
enjoyment and use of his mental faculties and was without the mental
capacity necessary to execute a valid will.
The record shows that the testator, Pioquinto Paguio, for some
fourteen of fifteen years prior to the time of his death suffered from a
paralysis of the left side of his body; that a few years prior to his death
his hearing became impaired and that he lost the power of speech.
Owing to the paralysis of certain muscles his head fell to one side, and
saliva ran from his mouth. He retained the use of his right hand,
however, and was able to write fairly well. Through the medium of
signs he was able to indicate his wishes to his wife and to other
members of his family.
At the time of the execution of the will there were present the four
testamentary witnesses, Agustin Paguio, Anacleto Paguio, and Pedro
Paguio, and attorney, Seor Marco, and one Florentino Ramos.
Anacleto Paguio and the attorney have since died, and consequently
their testimony was not available upon the trial of the case in the
lower court. The other three testamentary witnesses and the witness
Florentino Ramos testified as to the manner in which the will was
executed. According to the uncontroverted testimony of these
witnesses the will was executed in the following manner:
Pioquinto Paguio, the testator, wrote out on pieces of paper notes
and items relating to the disposition of his property, and these notes
were in turn delivered to Seor Marco, who transcribed them and put
them in form. The witnesses testify that the pieces of paper upon
which the notes were written are delivered to attorney by the testator;
that the attorney read them to the testator asking if they were his
testamentary dispositions; that the testator assented each time with
an affirmative movement of his head; that after the will as a whole
had been thus written by the attorney, it was read in a loud voice in
the presence of the testator and the witnesses; that Seor Marco
gave the document to the testator; that the latter, after looking over
it, signed it in the presence of the four subscribing witnesses; and that
they in turn signed it in the presence of the testator and each other.
These are the facts of record with reference to the execution of the
will and we are in perfect accord with the judgment of the lower court
that the formalities of the Code of Civil Procedure have been fully
complied with.
This brings us now to a consideration of appellants' second assignment
of error, viz, the testator's alleged mental incapacity at the time of the
execution of the will. Upon this point considerable evidence was
adduced at the trial. One of the attesting witnesses testified that at
the time of the execution of the will the testator was in his right mind,
and that although he was seriously ill, he indicated by movements of
his head what his wishes were. Another of the attesting witnesses
stated that he was not able to say whether decedent had the full use
of his mental faculties or not, because he had been ill for some years,
and that he (the witnesses) was not a physician. The other subscribing
witness, Pedro Paguio, testified in the lower court as a witness for the
opponents. He was unable to state whether or not the will was the
wish of the testator. The only reasons he gave for his statement were
the infirmity and advanced age of the testator and the fact that he
was unable to speak. The witness stated that the testator signed the
will, and he verified his own signature as a subscribing witness.
Florentino Ramos, although not an attesting witness, stated that he
was present when the will was executed and his testimony was
cumulative in corroboration of the manner in which the will was
executed and as to the fact that the testator signed the will. This
witness also stated that he had frequently transacted matters of
business for the decedent and had written letters and made
inventories of his property at his request, and that immediately before
and after the execution of the will he had performed offices of his
character. He stated that the decedent was able to communicate his
thoughts by writing. The testimony of this witness clearly indicates the
presence of mental capacity on the part of the testator. Among other
witnesses for the opponents were two physician, Doctor Basa and
Doctor Viado. Doctor Basa testified that he had attended the testator
some four or five years prior to his death and that the latter had
suffered from a cerebral congestion from which the paralysis resulted.
The following question was propounded to Doctor Basa:
Q. Referring to mental condition in which you found him
the last time you attended him, do you think he was in his
right mind?
A. I can not say exactly whether he was in his right mind,
but I noted some mental disorder, because when I spoke to
him he did not answer me.
Doctor Basa testified at more length, but the substance of his
testimony is that the testator had suffered a paralysis and that he had
noticed some mental disorder. He does not say that the testator was
not in his right mind at the time of the execution of the will, nor does
he give it at his opinion that he was without the necessary mental
capacity to make a valid will. He did not state in what way this mental
disorder had manifested itself other than that he had noticed that the
testator did not reply to him on one occasion when he visited him.
6

Doctor Viado, the other physician, have never seen the testator, but
his answer was in reply to a hypothetical question as to what be the
mental condition of a person who was 79 years old and who had
suffered from a malady such as the testator was supposed to have
had according to the testimony of Doctor Basa, whose testimony
Doctor Viado had heard. He replied and discussed at some length the
symptoms and consequences of the decease from which the testator
had suffered; he read in support of his statements from a work by a
German Physician, Dr. Herman Eichost. In answer, however, to a direct
question, he stated that he would be unable to certify to the mental
condition of a person who was suffering from such a disease.
We do not think that the testimony of these two physicians in any way
strengthens the contention of the appellants. Their testimony only
confirms the fact that the testator had been for a number of years
prior to his death afflicted with paralysis, in consequence of which his
physician and mental strength was greatly impaired. Neither of them
attempted to state what was the mental condition of the testator at
the time he executed the will in question. There can be no doubt that
the testator's infirmities were of a very serious character, and it is quite
evident that his mind was not as active as it had been in the earlier
years of his life. However, we can not include from this that he wanting
in the necessary mental capacity to dispose of his property by will.
The courts have been called upon frequently to nullify wills executed
under such circumstances, but the weight of the authority is in support
if the principle that it is only when those seeking to overthrow the will
have clearly established the charge of mental incapacity that the
courts will intervene to set aside a testamentary document of this
character. In the case of Bugnao vs. Ubag (14 Phil. Rep., 163), the
question of testamentary capacity was discussed by this court. The
numerous citations there given from the decisions of the United States
courts are especially applicable to the case at bar and have our
approval. In this jurisdiction the presumption of law is in favor of the
mental capacity of the testator and the burden is upon the
contestants of the will to prove the lack of testamentary capacity. (In
the matter of the will of Cabigting, 14 Phil. Rep., 463; in the matter of
the will of Butalid, 10 Phil. Rep., 27; Hernaez vs. Hernaez, 1 Phil. Rep.,
689.)
The rule of law relating to the presumption of mental soundness is well
established, and the testator in the case at bar never having been
adjudged insane by a court of competent jurisdiction, this
presumption continues, and it is therefore incumbent upon the
opponents to overcome this legal presumption by proper evidence.
This we think they have failed to do. There are many cases and
authorities which we might cite to show that the courts have
repeatedly held that mere weakness of mind and body, induced by
age and disease do not render a person incapable of making a will.
The law does not require that a person shall continue in the full
enjoyment and use of his pristine physical and mental powers in order
to execute a valid will. If such were the legal standard, few indeed
would be the number of wills that could meet such exacting
requirements. The authorities, both medical and legal, are universal in
statement that the question of mental capacity is one of degree, and
that there are many gradations from the highest degree of mental
soundness to the lowest conditions of diseased mentality which are
denominated as insanity and idiocy.
The right to dispose of property by testamentary disposition is as
sacred as any other right which a person may exercise and this right
should not be nullified unless mental incapacity is established in a
positive and conclusive manner. In discussing the question of
testamentary capacity, it is stated in volume 28, 70, of the American
and English Encyclopedia of Law, that
Contrary to the very prevalent lay impression, perfect
soundness of mind is not essential to testamentary capacity.
A testator may be afflicted with a variety of mental
weaknesses, disorders, or peculiarities and still be capable in
law of executing a valid will. (See the numerous cases there
cited in support of this statement.)
The rule relating to testamentary capacity is stated in Buswell on
Insanity, section 365, and quoted with approval inCampbell vs.
Campbell (130 Ill., 466), as follows:
To constitute a sound and disposing mind, it is not necessary
that the mind shall be wholly unbroken, unimpaired, or
unshattered by disease or otherwise, or that the testator
should be in the full possession of his reasoning faculties.
In note, 1 Jarman on Wills, 38, the rule is thus stated:
The question is not so much, that was the degree of memory
possessed by the testator, as, had he a disposing memory?
Was he able to remember the property he was about to
bequeath, the manner of disturbing it, and the objects of his
bounty? In a word, were his mind and memory sufficiently
sound to enable him to know and understand the business in
which he was engaged at the time when he executed his
will. (See authorities there cited.)
In Wilson vs. Mitchell (101 Penn., 495), the following facts appeared
upon the trial of the case: The testator died at the age of nearly 102
years. In his early years he was an intelligent and well informed man.
About seven years prior to his death he suffered a paralytic stroke and
from that time his mind and memory were mush enfeebled. He
became very dull of hearing and in consequence of the shrinking of
his brain he was affected with senile cataract causing total blindness.
He became filthy and obscene in his habits, although formerly he was
observant of the properties of life. The court, in commenting upon the
case, said:
Neither age, nor sickness, nor extreme distress, nor debility of
body will affect the capacity to make a will, if sufficient
intelligence remains. The failure of memory is not sufficient to
create the incapacity, unless it be total, or extend to his
immediate family or property. . . .
x x x x x x x x x
Dougal (the testator) had lived over one hundred years
before he made the will, and his physical and mental
weakness and defective memory were in striking contrast
with their strength in the meridian of his life. He was blind; not
deaf, but hearing impaired; his mind acted slowly, he was
forgetful or recent events, especially of names, and
repeated questions in conversation; and sometimes, when
aroused for sleep or slumber, would seem bewildered. It is
not singular that some of those who had known him when
he was remarkable for vigor and intelligence, are of the
opinion that his reason was so far gone that he was
incapable of making a will, although they never heard him
utter an irrational expression.
In the above case the will was sustained. In the case at bar we might
draw the same contrast as was pictured by the court in the case just
quoted. The striking change in the physical and mental vigor of the
testator during the last years of his life may have led some of those
who knew him in his earlier days to entertain doubts as to his mental
capacity to make a will, yet we think that the statements of the
witnesses to the execution of the will and statements of the conduct
of the testator at that time all indicate that he unquestionably had
mental capacity and that he exercised it on this occasion. At the time
of the execution of the will it does not appear that his conduct was
irrational in any particular. He seems to have comprehended clearly
what the nature of the business was in which he was engaged. The
evidence show that the writing and execution of the will occupied a
period several hours and that the testator was present during all this
time, taking an active part in all the proceedings. Again, the will in the
case at bar is perfectly reasonable and its dispositions are those of a
rational person.
7

For the reasons above stated, the order probating the will should be
and the same is hereby affirmed, with costs of this instance against the
appellants.
Arellano, C.J., Torres, Mapa, Johnson, Carson and Moreland,
JJ., concur.
G.R. No. 4445 September 18, 1909
CATALINA BUGNAO, proponent-appellee,
vs.
FRANCISCO UBAG, ET AL., contestants-appellants.
Rodriguez and Del Rosario for appellants.
Fernando Salas for appellee.
CARSON, J.:
This is an appeal from an order of the Court of First Instance of Oriental
Negros, admitting to probate a document purporting to be the last
will and testament of Domingo Ubag, deceased. The instrument was
propounded by his widow, Catalina Bugnao, the sole beneficiary
thereunder, and probate was contested by the appellants, who are
brothers and sisters of the deceased, and who would be entitled to
share in the distribution of his estate, if probate were denied, as it
appears that the deceased left no heirs in the direct ascending or
descending line.
Appellants contend that the evidence of record is not sufficient to
establish the execution of the alleged will in the manner and form
prescribed in section 618 of the Code of Civil Procedure; and that at
the time when it is alleged that the will was executed, Ubag was not
of sound mind and memory, and was physically and mentally
incapable of making a will.
The instrument propounded for probate purports to be the last will and
testament of Domingo Ubag, signed by him in the presence of three
subscribing and attesting witnesses, and appears upon its face to
have been duly executed in accordance with the provisions of the
Code of Civil Procedure touching the making of wills.
Two of the subscribing witnesses, Victor J. Bingtoy and Catalino
Mario, testified in support of the will, the latter being the justice of the
peace of the municipality wherein it was executed; and their
testimony was corroborated in all important details by the testimony of
the proponent herself, who was present when the will was made. It
does not appear from the record why the third subscribing witness was
not called; but since counsel for the contestants makes no comment
upon his absence, we think it may safely be inferred that there was
some good and sufficient reason therefore. In passing, however, it
may be well to observe that, when because of death, sickness,
absence, or for any other reason, it is not practicable to call to the
witness stand all the subscribing witnesses to a will offered for probate,
the reason for the absence of any of these witnesses should be made
to appear of record, and this especially in cases such as the one at
bar, wherein there is a contests.
The subscribing witnesses gave full and detailed accounts of the
execution of the will and swore that the testator, at the time of its
execution, was of sound mind and memory, and in their presence
attached his signature thereto as his last will and testament, and that
in his presence and in the presence of each other, they as well as the
third subscribing witness. Despite the searching and exhaustive cross-
examination to which they were subjected, counsel for appellants
could point to no flaw in their testimony save an alleged contradiction
as to a single incident which occurred at or about the time when the
will was executed a contradiction, however, which we think is more
apparent than real. One of the witnesses stated that the deceased
sat up in bed and signed his name to the will, and that after its
execution food was given him by his wife; while the other testified that
he was assisted into a sitting position, and was given something to eat
before he signed his name. We think the evidence discloses that his
wife aided the sick man to sit up in bed at the time when he signed his
name to the instrument, and that he was given nourishment while he
was in that position, but it is not quite clear whether this was
immediately before or after, or both before and after he attached his
signature to the will. To say that the sick man sat up or raised himself
up in bed is not necessarily in conflict with the fact that he received
assistance in doing so; and it is not at all improbable or impossible that
nourishment might have been given to him both before and after
signing the will, and that one witness might remember the former
occasion and the other witness might recall the latter, although
neither witness could recall both. But, however this may have been,
we do not think that a slight lapse of memory on the part of one or the
other witness, as to the precise details of an unimportant incident, to
which his attention may not have been particularly directed, is
sufficient to raise a doubt as to the veracity of these witnesses, or as to
the truth and accuracy of their recollection of the fact of the
execution of the instrument. Of course, a number of contradictions in
the testimony of alleged subscribing witnesses to a will as to the
circumstances under which it was executed, or even a single
contradiction as to a particular incident, where the incident was of
such a nature that the intention of any person who was present must
have been directed to it, and where the contradictory statements in
regard to it are so clear and explicit as to negative the possibility or
probability of mistake, might well be sufficient to justify the conclusion
that the witnesses could not possibly have been present, together, at
the time when it is alleged the will was executed; but the apparent
contradictions in the testimony of the witnesses in the case at bar fall
far short of raising a doubt a to their veracity, and on the other hand
their testimony as a whole gives such clear, explicit, and detailed
account of all that occurred, and is so convincing and altogether
satisfactory that we have no doubt that the trial judge who heard
them testify properly accepted their testimony as worthy of entire
confidence and belief.
The contestants put upon the stand four witnesses for the purpose of
proving that at the time and on the occasion when the subscribing
witnesses testified that the will was executed, these witnesses were not
in the house with the testator, and that the alleged testator was at
that time in such physical and mental condition that it was impossible
for him to have made a will. Two of these witnesses, upon cross-
examination, admitted that they were not in the house at or between
the hours of four and six in the afternoon of the day on which the will is
alleged to have been made, this being the time at which the
witnesses in support of the will testified that it was executed. Of the
other witnesses, one is a contestant of the will, Macario Ubag, a
brother of the testator, and the other, Canuto Sinoy, his close relative.
These witnesses swore that they were in the house of the deceased,
where he was lying ill, at or about the time when it is alleged that the
will was executed, and that at that time the alleged subscribing
witnesses were not in the house, and the alleged testator was so sick
that he was unable to speak, to understand, or to make himself
understood, and that he was wholly incapacitated to make a will. But
the testimony of Macario Ubag is in our opinion wholly unworthy of
credence. In addition to his manifest interest in the result of the
investigation, it clearly discloses a fixed and settled purpose to
overthrow the will at all costs, and to that end an utter disregard of the
truth, and readiness to swear to any fact which he imagined would
aid in securing his object. An admittedly genuine and authentic
signature of the deceased was introduced in evidence for
comparison with the signature attached to the will, but this witness in
his anxiety to deny the genuineness of the signature of his brother to
the will, promptly and positively swore that the admittedly genuine
signature was not his brother's signature, and only corrected his
erroneous statement in response to a somewhat suggestive question
by his attorney which evidently gave him to understand that his former
answer was likely to prejudice his own cause. On cross-examination,
he was forced to admit that because his brother and his brother's wife
(in those favor the will was made) were Aglipayanos, he and his other
brothers and sisters had not visited them for many months prior to the
one particular occasion as to which testified; and he admitted further,
that, although he lived near at hand, at no time thereafter did he or
any of the other members of his family visit their dying brother, and
8

that they did not even attend the funeral. If the testimony of this
witness could be accepted as true, it would be a remarkable
coincidence indeed, that the subscribing witnesses to the alleged will
should have falsely pretended to have joined in its execution on the
very day, and at the precise hour, when this interested witness
happened to pay his only visit to his brother during his last illness, so
that the testimony of this witness would furnish conclusive evidence in
support of the allegations of the contestants that the alleged will was
not executed at the time and place or in the manner and form
alleged by the subscribing witnesses. We do not think that the
testimony of this witness nor any of the other witnesses for the
contestants is sufficient to raise even a doubt as to the truth of the
testimony of the subscribing witnesses as to the fact of the execution
of the will, or as to the manner and from in which it was executed.
In the course of the proceedings, an admittedly genuine signature of
the deceased was introduced in evidence, and upon a comparison
of this signature with the signature attached to the instrument in
question, we are wholly of the opinion of the trial judge, who held in
this connection as follows:
No expert evidence has been adduced with regard to
these two signatures, and the presiding judge of this court
does not claim to possess any special expert knowledge in
the matter of signatures; nevertheless, the court has
compared these two signatures, and does not find that any
material differences exists between the same. It is true that
the signature which appears in the document offered for
authentication discloses that at the time of writing the
subscriber was more deliberate in his movements, but two
facts must be acknowledge: First, that the testator was
seriously ill, and the other fact, that for some reason which is
not stated the testator was unable to see, and was a person
who was not in the habit of signing his name every day.
These facts should sufficiently explain whatever difference
may exist between the two signatures, but the court finds
that the principal strokes in the two signatures are identical.
That the testator was mentally capable of making the will is in our
opinion fully established by the testimony of the subscribing witnesses
who swore positively that, at the time of its execution, he was of sound
mind and memory. It is true that their testimony discloses the fact that
he was at that time extremely ill, in an advanced stage of tuberculosis
complicated with severe intermittent attacks of asthma; that he was
too sick to rise unaided from his bed; that he needed assistance even
to rise himself to a sitting position; and that during the paroxysms of
asthma to which he was subject he could not speak; but all this
evidence of physical weakness in no wise establishes his mental
incapacity or a lack of testamentary capacity, and indeed the
evidence of the subscribing witnesses as to the aid furnished them by
the testator in preparing the will, and his clear recollection of the
boundaries and physical description of the various parcels of land set
out therein, taken together with the fact that he was able to give to
the person who wrote the will clear and explicit instructions as to his
desires touching the disposition of his property, is strong evidence of
his testamentary capacity.
Counsel for appellant suggests that the fact that the alleged will
leaves all the property of the testator to his widow, and wholly fails to
make any provision for his brothers or sisters, indicates a lack of
testamentary capacity and undue influence; and because of the
inherent improbability that a man would make so unnatural and
unreasonable a will, they contend that this fact indirectly corroborates
their contention that the deceased never did in fact execute the will.
But when it is considered that the deceased at the time of his death
had no heirs in the ascending or descending line; that a bitter family
quarrel had long separated him from his brothers and sisters, who
declined to have any relations with the testator because he and his
wife were adherents of the Aglipayano Church; and that this quarrel
was so bitter that none of his brothers or sisters, although some of them
lived in the vicinity, were present at the time of his death or attended
his funeral; we think the fact that the deceased desired to leave and
did leave all of his property to his widow and made no provision for his
brothers and sisters, who themselves were grown men and women, by
no means tends to disclose either an unsound mind or the presence of
undue influence on the part of his wife, or in any wise corroborates
contestants' allegation that the will never was executed.
It has been said that "the difficulty of stating standards or tests by
which to determine the degree of mental capacity of a particular
person has been everywhere recognized, and grows out of the
inherent impossibility of measuring mental capacity, or its impairment
by disease or other causes" (Greene vs. Greene, 145 III., 264, 276); and
that "it is probable that no court has ever attempted to lay down any
definite rule in respect to the exact amount of mental capacity
requisite for the making of a valid will, without appreciating the
difficulty of the undertaking" (Trish vs. Newell, 62 III., 196, 203).
Between the highest degree of soundness of mind and memory which
unquestionably carries with it full testamentary capacity, and that
degree of mental aberration generally known as insanity or idiocy,
there are numberless degrees of mental capacity or incapacity, and
while on one hand it has been held that "mere weakness of mind, or
partial imbecility from the disease of body, or from age, will not render
a person incapable of making a will, a weak or feeble minded person
may make a valid will, provided he has understanding memory
sufficient to enable him to know what he is about, and how or to
whom he is disposing of his property" (Lodge vs. Lodge, 2 Houst. (Del.),
418); that, "To constitute a sound and disposing mind, it is not
necessary that the mind should be unbroken or unimpaired,
unshattered by disease or otherwise" (Sloan vs. Maxwell, 3 N. J. Eq.,
563); that "it has not been understood that a testator must possess
these qualities (of sound and disposing mind and memory) in the
highest degree. . . . Few indeed would be the wills confirmed, if this is
correct. Pain, sickness, debility of body, from age or infirmity, would,
according to its violence or duration, in a greater or less degree, break
in upon, weaken, or derange the mind, but the derangement must be
such as deprives him of the rational faculties common to man"
(Den. vs. Vancleve, 5 N. J. L.,680); and, that "Sound mind does not
mean a perfectly balanced mind. The question of soundness is one of
degree" (Boughton vs. Knight, L. R.,3 P. & D., 64; 42 L. J. P., 25); on the
other hand, it has been held that "testamentary incapacity does not
necessarily require that a person shall actually be insane or of an
unsound mind. Weakness of intellect, whether it arises from extreme
old age from disease, or great bodily infirmities or suffering, or from all
these combined, may render the testator incapable of making a valid
will, providing such weakness really disqualifies her from knowing or
appreciating the nature, effects, or consequences of the act she is
engaged in" (Manatt vs. Scott, 106 Iowa, 203; 68 Am. St. Rep., 293,
302).
But for the purposes of this decision it is not necessary for us to attempt
to lay down a definition of testamentary capacity which will cover all
possible cases which may present themselves, because, as will be
seen from what has already been said, the testator was, at the time of
making the instrument under consideration, endowed with all the
elements of mental capacity set out in the following definition of
testamentary capacity which has been frequently announced in
courts of last resort in England and the United States; and while is some
cases testamentary capacity has been held to exist in the absence of
proof of some of these elements, there can be no question that, in the
absence of proof of very exceptional circumstances, proof of the
existence of all these elements in sufficient to establish the existence of
testamentary capacity.
Testamentary capacity is the capacity to comprehend the
nature of the transaction which the testator is engaged at
the time, to recollect the property to be disposed of and the
person who would naturally be supposed to have claims
upon the testator, and to comprehend the manner in which
the instrument will distribute his property among the objects
of his bounty.
9

(Cf. large array of cases cited in support of this definition in the
Encyclopedia of Law, vol. 23, p. 71, second edition.)
In our opinion, the evidence of record establishes in a strikingly
conclusive manner the execution of the instrument propounded as
the last will and testament of the deceased; that it was made in strict
conformity with the requisites prescribed by law; and that, at the time
of its execution, the deceased was of sound mind and memory, and
executed the instrument of his own free will and accord.
The order probating the will should be land is hereby affirmed, with the
cost of this instance against the appellants.
Arellano, C. J., Torres, Johnson, and Moreland, JJ., concur.
G.R. No. L-24569 February 26, 1926
MANUEL TORRES, petitioner-appellant and
LUZ LOPEZ DE BUENO, appellant,
vs.
MARGARITA LOPEZ, opponent-appellee.
Araneta & Zaragoza for appellant.
Marcaida, Capili & Ocampo and Thomas Cary Welch for appellee.
MALCOLM, J.:
This case concerns the probate of the alleged will of the late Tomas
Rodriguez y Lopez.
Tomas Rodriguez died in the City of Manila Philippine Islands. On
February 25, 1924, leaving a considerable estate. Shortly thereafter
Manuel Torres, one of the executors named in the will asked that the
will of Rodriguez be allowed. Opposition was entered by Margarita
Lopez, the first cousin of the deceased on the grounds: (1) That the
testator lacked mental capacity because at the time of senile
dementia and was under guardianship; (2) that undue influence had
been exercised by the persons benefited in the document in
conjunction with others who acted in their behalf; and (3) that the
signature of Tomas Rodriguez to the document was obtained through
fraud and deceit. After a prolonged trial judgment was rendered
denying the legalization of the will. In the decision of the trial judge
appeared, among others, these findings:
All this evidence taken together with the circumstances that
before and at the time Tomas Rodriguez was caused to sign
the supposed will Exhibit A, and the copies thereof there
already existed a final judgment as to his mental condition
wherein he was declared physically and mentally
incapacitated to take care of himself and manage his
estate shows in a clear and conclusive manner that at the
time of signing the supposed will of Tomas Rodriguez did not
possess such mental capacity as was necessary to be able
him to dispose of his property by the supposed will.
But even supposing as contended by petitioner's counsel
that Tomas Rodriguez was at the time of execution of the
will, competent to make a will, the court is of the opinion
that the will cannot be probated for it appears from the
declaration of the attesting witness Elias Bonoan that when
the legatee Luz Lopez presented the supposed will, Exhibit A,
to Tomas Rodriguez, she told him to sign said Exhibit A
because it was a document relative to the complaint
against one Castito, which Exhibit 4, then pending in the
justice of the peace court, and for the further reason that
said Tomas Rodriguez was then under guardianship, due to
his being mentally and physically incapacitated and
therefore unable to manage his property and take care of
himself. It must also be taken into account that Tomas
Rodriguez was an old man 76 years of age, and was sick in
the hospital when his signature to the supposed will was
obtained. All of this shows that the signature of Tomas
Rodriguez appearing in the will was obtained through
fraudulent and deceitful representations of those who were
interested in it. (Record on Appeal, p. 23)
From the decision and judgment above-mentioned the proponents
have appealed. Two errors are specified, viz: (1) The court below erred
in holding that at the time of signing his will, Tomas Rodriguez did not
possess the mental capacity necessary to make the same, and (2) the
court below erred in holding that the signatures of Tomas Rodriguez to
the will were obtained through fraudulent and deceitful
representations, made by persons interested in the executions of said
will.
The record is voluminous close to two thousand typewritten pages,
with a varied assortment of exhibits. One brief contains two hundred
seventy-four pages, the other four hundred fifteen pages. The usual
oral argument has been had. The court must scale this mountains of
evidence more or less relevant and of argument intense and prolific to
discover the fertile valleys of fact and principle.
The topics suggested by the assignments of error Testamentary
Capacity and Undue Influence will be taken up separately and in
order. An attempt will be made under each subject first to make
findings of fact quite separate and apart from those of the judge and
second to make findings of law and the law by rendering judgment.
I. TESTAMENTARY CAPACITY
A. Facts. For a long time prior to October, 1923, Tomas Rodriguez
was in feeble health. His breakdown was undoubtedly due to organic
weakness, to advancing years and to an accident which occurred in
1921 (Exhibit 6). Ultimately, on August 10 1923, on his initiative, Tomas
Rodriguez designated Vicente F. Lopez as the administrator of his
property (Exhibit 7).
On October 22, 1923, Margarita Lopez petitioned the Court of First
Instance of Manila to name a guardian for Tomas Rodriguez because
of his age and pathological state. This petition was opposed by
Attorney Gregorio Araneta acting on behalf of Tomas Rodriguez for
the reason that while Rodriguez was far from strong on account of his
years, he was yet capable of looking after his property with the
assistance of his administrator, Vicente F. Lopez. The deposition of
Tomas Rodriguez was taken and a perusal of the same shows that he
was able to answer nearly all of the questions propounded intelligently
(Exhibit 5-g). A trial had at which considerable oral testimony for the
petitioner was received. At the conclusion of the hearing, an order
was issued by the presiding judge, declaring Tomas Rodriguez
incapacitated to take care of himself and to manage his property
and naming Vicente F. Lopez as his guardian. (Exhibit 37).
Inasmuch as counsel for the appellee make such of one incident
which occurred in connection with the guardianship proceedings, it
may as well be mentioned here as later. This episode concerns the
effort of deputy sheriff Joaquin Garcia to make service on Tomas
Rodriguez on October 31, 1923. We will let the witness tell in his own
words what happened on the occasions in question:
I found him lying down on his bed. . . . And when it (the
cleaning of his head) was finished, I again entered his room,
and told him that I had an order of the court which I wanted
to read as I did read to him, but after reading the order he
asked me what the order meant; 'I read it to you so that you
may appear before the court, understand,' then I read it
again, but he asked what the order said; in view of that fact
I left the order and departed from the house. (S. R., p. 642.)
10

To return to our narrative possibly inspired by the latter portion of the
order of Judge Diaz, Tomas Rodriguez was taken to the Philippine
General Hospital on November 27, 1923. There he was to remain sick in
bed until his death. The physician in charge during this period was Dr.
Elias Domingo. In the clinical case record of the hospital under the
topic "Diagnosis (in full)," we find the following "Senility; Hernia inguinal;
Decubitus" (Exhibit 8).
On the door of the patient's room was placed a placard reading
"No visitors, except father, mother, sisters, and brothers." (Testimony of
head nurse physician, there were permitted to visit the patient only
the following named persons: Santiago Lopez, Manuel Ramirez,
Romana Lopez, Luz Lopez de Bueno, Remedio Lopez, Benita Lopez,
Trinidad Vizcarra, Apolonia Lopez, Antonio Haman, and Gregorio
Araneta ((Exhibit 9). The list did not include the names of Margarita
Lopez and her husband Antonio Ventura. Indeed the last named
persons experienced considerable difficulty in penetrating in to the
room of Rodriguez.
Santiago Lopez states that on one occasion when he was visiting
Tomas Rodriguez in the hospital , Rodriguez expressed to him a desire
to make a will and suggested that the matter be taken up with
Vicente F. Lopez (S. R., p. 550). This information Santiago Lopez
communicated to Vicente F. Lopez, who then interviewed Maximino
Mina, a practicing attorney in the City of Manila, for the purpose of
securing him to prepare the will. In accordance with this request,
Judge Mina conferred with Tomas Rodriguez in the hospital in
December 16th and December 29th. He ascertained the wishes of
Rodriguez and wrote up a testament in rough draft. The attorney
expected to return to the hospital on December 31st to have the will
executed but was unable to do so on account of having to make a
trip to the provinces. Accordingly, the papers were left with Santiago
Lopez.
In corroboration of the above statements, we transcribe a portion of
Judge Mina's testimony which has not been challenged in any way:
ARANETA: Q. Will you please tell your motive for holding an
interview with Vicente Lopez?
MAXIMINO MINA: A. Then I arrived in the house of Vicente
Lopez, after the usual greeting and other unimportant
things, he consulted me or presented the question as to
whether or not D. Tomas could make his will, having
announced his desire to do so. I told him that it seemed that
we were not called upon to decide or give an opinion as to
whether or not he can make a will; it is a question to be
submitted to the court, but as he had announced his desire,
it is our duty to comply with it. Then he requested me to do
what was necessary to comply with his wishes: I told him I
was to see him; then we agreed that on the morning next to
the following evening that is on the 16th, I should go to the
General Hospital and so I did.
Q. Did you go to the hospital in the evening of the 16th?
A. Yes, sir.
Q. Did you meet D. Tomas? A. Yes, sir.
Q. Did D. Tomas tell you his desire to make a will?
OCAMPO: Leading.
ARANETA: I withdraw. What, if anything, did D. Tomas tell you
on that occasion when you saw him there? A. He told me
that.
Q. Please tell us what conversation you had with D. Tomas
Rodriguez? A. The conversation I had with him that
evening according to my best recollection I cannot tell
the exact words and perhaps the order. After the usual
greetings, Good evening, D. Tomas, ' Good evening,' How
are you,' ' How do you do? Very well, just came here in the
name of D. Vicente Lopez why does he not come. He
cannot come because he has many things to do, and
besides it is hard for him and makes him tired, so he told me
to come.' Mina, your tenant, attorney.' Are you an attorney?
Yes.' Where do you live? I live in Quiapo.' Oh, in Quiapo, a
good district, it is gay a commercial place you must have
some business there because that is a commercial place.
Unfortunately, I have none, D. Tomas.' Well, you must be
have because the profession alone does not give enough.
Where is your office? I work in the office of Mr. Chicote. That
Mr. Chicote must be rich, it seems to me that he is. The
profession gives almost nothing it is better to have
properties. I am an attorney but do not depend upon my
profession. I interrupted D. Tomas saying, since you want to
make a will, when and to whom do you want to leave your
fortune? Then he said, To whom else? To my cousin Vicente
Lopez and his daughter Luz Lopez. Which properties do you
want to give to your cousin and niece? All my properties,
Won't you specify the property to be given to each of
them? What for? All my property. Don't you have any other
relatives? Yes, sir I have. Won't you give any to those
relatives? What for? was his answer. Well, do you want to
specify said properties, to say what they are? and he again
said, What for? they know them, he is my attorney-in-fact as
to all property. I also said, Well and as legacy won't you give
property to other persons? answers, I think, something, they
will know it. After being asked, Whom do you think, would
you want to be your executor? After hesitating a little, This
Torres, Manuel or Santiago Lopez also. Then I asked him,
What is your religion? He answered, Roman Apostolic
Catholic, and then he also asked me, and your? Also
Roman Apostolic Catholic, Where have you studied?' 'In the
University of Santo Tomas.' 'It is convenient to preserve the
Catholic religion that our descendants have left us. And you,
what did you have anything more to say as to your
testamentary dispositions? No, he answered. Then I remind
him, 'You know that Vicente Lopez has sent me to get these
dispositions of yours, and he said, Yes, do it.' I asked him,
When do you want it done? Later on, I will send for you.
After this believing to have done my duty, I bade him good-
bye.
Q. Did you have any other occasion to see him? A. Yes.
Q. When? A. On December 29, 1923, also in the evening.
Q. Why did you go to see him? A. Because as I had not
received any message either from Vicente Lopez or Tomas
Rodriguez, as I had received notices in connection with the
few cases I had in the provinces particularly in Tayabas,
which compelled me to be absent from Manila until January
1st at least, for I might be there for several days, so I went to
the General Hospital of my own accord since I had not
received any messages from them with a rough draft
which I had prepared in accordance with what he had told
me in our conversation. After the greetings, I told him, Here I
am D. Tomas; this is the rough draft of your will in
accordance with your former statements to me in order to
submit it to you. Do you want to read it?' 'Please do me the
favor of reading it. I read it slowly to him in order that he
could understand it . After reading, Is it all right, that is the
way, few words you see it takes only a few minutes;
now I can execute the will. We can do it takes only a few
minutes.' In view of that statement of his, I called his
attention, ' But we don't have witnesses, D. Tomas.' I looked
out through the door to see if I could call some witnesses but
it was late then and it was thought better to do it on the 31st
of December. Then we talked about other things, and he
again asked. Where were you born? I told him in Quiapo.
11

Ah, good district, and especially now that the fiesta of
Quiapo is coming near,' and then I interrupted him, Yes, the
fiesta of the Holy Child and of Our Lady of Mount Carmel'
because we also talked about the fiesta of San Sebastian. I
again reminded him that we could not do it because the
witnesses were not there and he explained, Good Christmas
present, isn't it?' I did not tell him anything and in view of that
I did not deem it necessary to stay there any longer.
Q. With whom did you make the arrangement to make the
will on the evening of the 31st of December you said that
it was agreed that the will be executed on the evening of
December 31st? A. With Santiago Lopez and Don Tomas.
Q. Was the will executed on the 31st of December? A.
What happened is this: In view of that agreement, I fixed up
the draft which I had, dating it the 31st of December,
putting everything in order; we agreed that Santiago would
meet me on 31st day between five and six in the evening or
a little before, but it happened that before the arrival of that
date Santiago Lopez came and told me that I need not
trouble about going to the General Hospital; because it
could not be carried out for the reason that certain
requisites were lacking. In view of this and bearing always in
mind that on the following day I had to go to the provinces,
I told Santiago Lopez that I would leave the papers with him
because I might go to the provinces.
Q. What may be the meaning of those words good
Christmas present? A. They are given a Christmas present
when Christmas comes or on the occasion of Christmas.
Q. I show you this document which is marked Exhibit A, tell
me if that is the will or copy of the will which you delivered to
Santiago Lopez on December 21, 31, 1923? A. With the
exception of the words '3 de enero de 1924' It seems to be
literally identical. (S. R. pp. 244-249.)
As the witness stated, the will which was prepared by him is identical
with that signed by the testator and the attesting witnesses with the
single exception of the change of the date from December 31, 1923,
to January 3, 1924. Two copies besides the original of the will were
made. The will is brief and simple in terminology.
For purposes of record, we copy the will as here translated into English:
ONLY PAGE
In the City of Manila, Philippines Islands, this January 3, 1924,
I, Tomas Rodriguez, of age and resident of the City of
Manila, Philippine Islands, do freely and voluntarily make this
my will and testament in the Spanish language which I
know, with the following clauses:
First I declare that I am a Roman Apostolic Catholic, and
order that my body be buried in accordance with my
religion, standing and circumstances.
Second. I name my cousin Vicente F. Lopez and his
daughter Luz Lopez de Bueno as my only universal heirs of all
my property.
Third. I appoint D. Manuel Torres and D. Santiago Lopez as
my prosecutors.
In witness whereof I sign this typewritten will, consisting of
one single page, in the presence of the witness who sign
below.
(Sgd.) TOMAS RODRIGUEZ
(Left marginal signatures:)
TOMAS RODRIGUEZ
ELIAS BONOAN
V. L. LEGARDA
A. DE ASIS
We hereby certify that on the date and in the place above
indicated, Don Tomas Rodriguez executed this will,
consisting of one single typewritten page, having signed at
the bottom of the will in the presence of us who saw as
witnesses the execution of this will, we signed at the bottom
thereof in the presence of the testator and of each other.
(Sgd.) V. L. LEGARDA
ELIAS BONOAN
A. DE ASIS
(Exhibit A.)
On the afternoon of January 3, 1924 there gathered in the quarters of
Tomas Rodriguez in the Philippine General Hospital, Santiago Lopez
and Dr. A. De Asis, attesting witness; and Dr. Elias Fernando Calderon,
Dr. Elias Domingo and Dr. Florentino Herrera, physicians, there for
purposes of observation. (Testimony of Elias Bonoan, S. R., p. 8 of Vl.
Legarda, S. R. p. 34. ) Possibly also Mrs. Luz Lopez de Bueno and Mrs.
Nena Lopez were present; at least they were hovering in the
background.
As to what actually happened, we have in the record two absolutely
contradictory accounts. One emanates from the attesting witness,
Doctor Bonoan. The other is the united testimony of all remaining
persons who were there.
Doctor Elias Bonoan was the first witness called at the trial. He testified
on direct examination as to formal matters, such as the identification
of the signatures to the will .On cross-examination, he rather started
the proponents of the will by stating that Luz Lopez de Bueno told
Tomas Rodriguez to sign the document it concerned a complaint
against Castito and that nobody read the will to the testator. Doctor
Bonoan's testimony along this line is as follows:
QUESTIONS.
MARCAIDA : Q. Why were you a witness to the will of Tomas
Rodriguez?
Araneta: I object to the question as being immaterial.
Court: Objection overruled.
Dr. Bonoan: A. Because I was called up by Mrs. Luz by
telephone telling me to be in the hospital at 3 o'clock sharp
in the afternoon of the 3d of January.
Q. Who is that Luz whom you have mentioned? A. Luz
Lopez, daughter of Vicente Lopez.
Q. What day, January 3, 1924? A. Yes, sir.
Q. When did Luz Lopez talk to you in connection with your
going to the hospital? A. On the morning of the 3d she
called me up by telephone.
Q. On the morning? A. On the morning.
12

Q. Before January 3, 1924, when the will of Tomas Rodriguez
was signed, did Luz Lopez talk to you? A. Yes, sir.
Q. How many days approximately before was it? A. I
cannot tell the day, it was approximately one week before,
on that occasion when I was called up by her about the
deceased Vicente Lopez.
Q. What did she tell you when you went to the house of
Vicente Lopez one week approximately before signing the
will? - A. That Tomas Rodriguez would make a will.
Q. Don't you know where the will of Tomas Rodriguez was
made? - A. In the General Hospital.
Q. Was that document written in the hospital? A. I have
not seen it.
Q. When you went to the General Hospital on January 3,
1924, who were the persons you met in the room where the
patients was ? A. I met one of the nieces of the deceased
Tomas Rodriguez, Mrs. Nena Lopez and Dna. Luz Lopez.
Q. Were those the only persons? A. Yes, sir.
Q. What time approximately did you go to the General
Hospital on January 3d? A. A quarter to 3.
Q. After you, who came? A. Antonio de Asis, Doctor
Herrera, later on Doctor Calderon arrived with Doctor Elias
Domingo and lastly Santiago Lopez came and then Mr.
Legarda.
Q. When you entered the room of the patient, D. Tomas
Rodriguez, in the General Hospital in what position did you
find him? A. He was lying down.
Q. Did you greet D. Tomas Rodriguez? A. I did.
Q. Did D. Tomas Rodriguez answer you? A. Dna. Nena
immediately answered in advance and introduced me to
him saying that I was the brother of his godson.
Q. Did other persons whom you have mentioned, viz, Messrs.
Calderon, Herrera, Domingo, De Asis and Legarda greet
Tomas Rodriguez?
ARANETA: I object to the question as being improper cross-
examination. It has not been the subject of the direct
examination.
COURT: Objection overruled.
ARANETA: Exception.
A. No, sir, they joined us.
Q. What was D. Tomas told when he signed the will.? A. To
sign it.
Q. Who told D. Tomas to sign the will? A. Luz Lopez.
Q. What did Luz Lopez tell Tomas Rodriguez in order that he
should sign the will? A. She told him to sign the document;
the deceased Tomas Rodriguez before signing the
document asked what that was which he was to sign.
Q. What did anybody answer to that question of D. Tomas?
A. Luz Lopez told him to sign it because it concerned a
complaint against Castito. D. Tomas said, 'What is this?" And
Luz Lopez answered, 'You sign this document, uncle Tomas,
because this is about the complaint against Castito.
Q. Then Tomas Rodriguez signed the will? A. Yes, sir.
Q. Who had the will? Who was holding it? A. Mr. Vicente
Legarda had it his own hands.
Q. Was the will signed by Tomas Rodriguez lying down, on his
feet or seated? A. Lying down.
Q. Was the will read by Tomas Rodriguez or any person
present at the time of signing the will, did they read it to
him? A. Nobody read the will to him.
Q. Did not D. Tomas read the will? A. I have not seen it.
Q. Were you present? A. Yes, sir. ( S. R. p. 8)
As it would be quite impracticable to transcribe the testimony of all
the others who attended the making of the will, we will let Vicente L.
Legarda, who appears to have assumed the leading role, tell what
transpired. He testified in part:
ARANETA : Q. Who exhibited to you those documents,
Exhibits A, A-1, and A-2?
LEGARDA: A. Santiago Lopez.
Q. Did he show you the same document? A. First that is to
say the first document he presented to me was a rough
draft, a tentative will, and it was dated December 31st, and
I called his attention to the fact that the date was not
December 31, 1923, and that it was necessary to change
the date to January 3, 1924, and it was done.
Q. And it was then, was it not when Exhibits A, A-1, and A-2
were written? A. Yes, sir.
Q. Do you any know where it was written? A. In the
General Hospital.
Q. Did any time elapse from your making the suggestion
that the document which you delivered to Santiago Lopez
be written until those three Exhibits A, A-1, and A-2 were
presented to you? A. About nine or ten minutes
approximately.
Q. The time to make it clean? A. Yes, sir.
Q. Where were you during that time? A. In the room of D.
Tomas Rodriguez.
Q. Were you talking with him during that time. A. Yes, sir.
Q. About what things were you talking with him? A. He
was asking me about my health, that of my family how my
family was my girl, whether we were living in Pasay, he
asked me about the steamer Ildefonso, he said that it was a
13

pity that it had been lost because he knew that my father-
in-law was the owner of the steamer Ildefonso.
x x x x x x x x x
Q. When those documents, Exhibit A, A-1, and A-2, that is
the original and two copies of the will signed by D. Tomas
Rodriguez were written clean, will you please tell what
happened? A. When Santiago Lopez gave them to me
clean, I approached D. Tomas Rodriguez and told him: Don
Tomas, here is this will which is ready for your signature.
Q. What did D. Tomas do when you said that his will you
were showing to him was ready? A. The first thing he
asked was: the witnesses? Then I called the witnesses
Gentlemen, please come forward, and they came forward,
and I handed the documents to D. Tomas. D. Tomas got up
and then took his eyeglasses, put them on and as he saw
that the electric lamp at the center was not sufficiently
clear, he said: 'There is no more light;' then somebody came
forward bringing an electric lamp.
Q. What did D. Tomas do when that electric lamp was put in
place? A. The eyeglasses were adjusted again and then
he began to read, and as he could not read much for a
long time, for he unexpectedly felt tired and took off the
eyeglasses, and as I saw that the poor man was tired, I
suggested that it be read to him and he stopped reading
and I read the will to him.
Q. What happened after you had read it to him? A. He
said to me, 'Well, it is all right. It is my wish and my will. Don't
you have any pen?' I asked a pen of those who were there
and handed it to D. Tomas.
Q. Is it true that Tomas Rodriguez asked at that time 'What is
that which I am going to sign?' and Luz Lopez told him: 'It is
in connection with the complaint against Castito?' A. It is
not true, no, sir.
Q. During the signing of the will, did you hear Luz Lopez say
anything to Tomas Rodriguez? A. No, Sir, she said nothing.
Q. According to you, Tomas Rodriguez signed of his own
accord? A. Yes, sir.
Q. Did nobody tell him to sign? A. Nobody.
Q. What happened after the signing of the will by Tomas
Rodriguez? A. I called the witnesses and we signed in the
presence of each other and of Tomas Rodriguez.
Q. After the signing of the will, did you have any
conversation with Tomas Rodriguez? A. Doctor Calderon
asked D. Tomas Rodriguez some questions.
Q. Do you remember the questions and the conversation
held between Doctor Calderon and D. Tomas after the
signing of the will? A. I remember that afterwards Doctor
Calderon talked to him about business. He asked him how
the business of making loans at 18 per cent. It seems that
Tomas Rodriguez answered: That loan at 18 per cent is
illegal, it is usury. (S. R., p. 38.)
In addition to the statements under oath made by Mr. Legarda, an
architect and engineer in the Bureau of Public Works and professor of
engineering and architecture in the University of Santo Tomas, suffice it
to say that Luz Lopez de Bueno denied categorically the statements
attributed to her by Doctor Bonoan (S. R., p. 568). In this stand, she is
corroborated by Doctor Calderon, Domingo, and Herrera, the
attending physicians. On this point, Doctor Calderon the Director of
the Philippine General Hospital and Dean of the College of Medicine
in the University of the Philippines, testified:
Mr. ARANETA: Q. What have you seen or heard with regard
to the execution of the will?
Dr. CALDERON: A. Mr. Legarda handled the will to D. Tomas
Rodriguez. D. Tomas asked for his eyeglass, wanted to read
and it was extremely hard for him to do so. Mr. Legarda
offered to read the will, it was read to him and he heard
that in that will Vicente Lopez and Luz Lopez were
appointed heirs; we also saw him sign that will, and he
signed not only the original but also the other copies of the
will and we also saw how the witnesses signed the will; we
heard that D. Tomas asked for light at that moment; he
heard that D. Tomas asked for light at that moment; he was
at that time in a perfect mental state. And we remained
there after the will was executed. I asked him, 'How do you
feel, how are you? Well I am well, ' he answered. ' How is the
business? There is a crisis at there is one good business,
namely, that of making loans at the rate of 18 per cent, 'and
he answered, 'That is usury.; When a man answers in that
way, ' That is usury it shows that he is all right.
Q. Were you present when Mr. Legarda handed the will to
him? A. Yes, sir.
Q. Did any person there tell Don Tomas that was a
complaint to be filed against one Castito? A. No, sir, I
have not heard anything of the kind.
Q. It was said here that when the will was handed to him, D.
Tomas Rodriguez asked what that was which he was to sign
and that Luz Lopez answered, 'That is but a complaint in
connection with Castito.' Is that true? A. I have not heard
anything of the kind.
Q. Had anybody told that to the deceased, would you have
heard it? A. Yes, sir.
Q. Was Luz Lopez there? A. I don't remember having seen
her; I am not sure; D. Santiago Lopez and the three witnesses
were there; I don't remember that Luz Lopez was there.
Q. Had anybody told that to the deceased, would you have
heard it? A. Yes, sir.
Q. Do you remember whether he was given a pen or he
himself asked for it? A. I don't know; it is a detail which I
don't remember well; so that whether or not he was given a
pen or he himself asked for it, I do not remember.
Q. But did he sign without hesitation ? A. With no
hesitation.
Q. Did he sign without anybody having indicated to him
where he was to sign? A. Yes, without anybody having
indicated it to him.
Q. Do you know whether D. Tomas Rodriguez asked for more
light before signing? A. He asked for more lights, as I have
said before.
14

Q. Do you remember that detail? A. Yes, sir. They first
lighted the lamps, but as the light was not sufficient, he
asked for more light.
Q. Do you remember very well that he asked for light? A.
Yes, sir. (S. R. p.993).
A clear preponderance of the evidence exists in favor of the
testimony of Vicente Legarda, corroborated as it is by other witnesses
of the highest standing in the community. The only explanation we
can offer relative to the testimony of Doctor Bonoan is that possibly he
may have arrived earlier than the others with the exception of Luz
Lopez de Bueno, and that Luz Lopez de Bueno may have made some
sort of an effort to influence Tomas Rodriguez. There is however no
possible explanation of the statement of Doctor Bonoan to the effect
that no one read the will to Rodriguez when at least five other persons
recollect that Vicente Legarda read it to him and recall the details
connected with the reading.
There is one curious occurrence which transpired shortly after the
making of the will which should here be mentioned. It is that on
January 7, 1923 (1924), Luz Lopez de Bueno signed a document in
favor of Doctor Bonoan in the amount of one thousand pesos
(P1,000). This paper reads as follow:
Be it know by these present:
That I, Luz Lopez de Bueno in consideration of the services
which at my instance were and will when necessary be
rendered by Dr. Elias Bonoan in connection with the
execution of the will of my uncle, Don Tomas Rodriguez and
the due probate thereof, do hereby agree to pay said
doctor, by way of remuneratory donation, the sum of one
thousand pesos (P1,000), Philippine currency, as soon as said
services shall have been fully rendered and I shall be in
possession of the inheritance which in said will is given to me.
In witness whereof, I sign this document which was freely
and spontaneously executed by me in Manila, this January
7, 1923.
(Sgd.) LUZ LOPEZ DE BUENO
(Exhibit 1)
There is a sharp conflict of testimony, as is natural between Doctor
Bonoan and Luz Lopez de Bueno relative to the execution of the
above document. We shall not attempt to settle these differences as
in the final analysis it will not affect the decision one way or the other.
The most reasonable supposition is that Luz Lopez de Bueno
imprudently endeavored to bring over Doctor Bonoan to her side of
the race by signing and giving to him Exhibit 1. But the event cannot
easily be explained away.
Tomas Rodriguez passed away in the Philippine General Hospital, as
we said on February 25, 1924. Not even prior to his demise the two
actions in the Lopez family had prepared themselves for a fight over
the estate. The Luz Lopez faction had secured the services of Doctor
Domingo, the physician in charge of the Department of Insane of San
Lazaro Hospital an Assistant Professor of Nervous and Mental Diseases
in the University of the Philippines, as attending physician; as
associated with him for purposes of investigation Dr. Fernando
Calderon the Director of the Philippine General Hospital and Dr.
Florentino Herrera, a physician in active practice in the City of Manila;
and had arranged to have two members of the medical fraternity,
Doctors De Asis and Bonoan as attesting witnesses. The Margarita
Lopez faction had taken equal precautions by calling a witnesses in
the guardship proceedings Dr. Sixto de los Angeles Professor and Chief
of the Department of Legal Medicine in the University of the
Philippines, and Dr. Samuel Tietze, with long experience in mental
diseases; thereafter by continuing Doctors de Los Angeles and Tietze
to examine Tomas Rodriguez and by associating with them Dr. William
Burke, a well-known physician of the City of Manila. Skilled lawyers
were available to aid and abet the medical experts. Out of such
situations, do will contests arise.
An examination of the certificates made by the two sets of physicians
and of their testimony shows that on most facts they concur. Their
deductions from these facts disclose a substantial divergence of
opinion. It is a hopeless task to try to reconcile the views of these
distinguished gentlemen who honestly arrived at definite but
contradictory conclusions. The best that we can do under the
circumstances is to set forth the findings of the Calderon committed
on the hand and of the De Los Angeles committee on the other.
Doctors Calderon, Domingo and Herrera examined Tomas Rodriguez
individually and jointly before the date when the will was executed. All
of them, as we have noticed were, present at the signing of the will to
note the reactions of the testator. On the same day that the will was
accomplished, the three doctors signed the following certificate:
The undersigned, Drs. of Medicine, with offices in the City of
Manila, and engaged in the practice of their profession do
hereby certify:
That they have jointly examined Mr. Tomas Rodriguez,
confined in the General Hospital, floor No. 3, room No. 361
on three different occasion and on different days and have
found that said patient is suffering from anemia, hernia
inguinal, chronic dyspepsia and senility.
As to his mental state the result of the different tests to which
this patient was submitted is that his intellectual faculties are
sound, except that his memory is weak, which is almost a
loss for recent facts, or events which have recently
occurred, due to his physical condition and old age.
They also certify that they were present at the time he
signed his will on January 3, 1924, at 1:25 p.m. and have
found his mental state in the same condition as was found
by the undersigned in their former examination and that in
executing said will the testator and full knowledge of the
contents thereof.
In testimony whereof, we sign in Manila this January 3, 1924.
(Sgd.) FLORENTINO HERRERA
Tuberias 1264
Quiapo
(Sgd.) Dr. FERNANDO CALDERON
General Hospital
Manila
(Sgd.) Dr. ELIAS DOMINGO
613 Remedios
Malate
(Exhibit E in relation with Exhibits C and D.)
Doctor Calderon while on the witness-stand expressed a
definite opinion as to the mentality of Tomas Rodriguez What
follows is possibly the most significant of the doctor's
statements:
Dr. CALDERON testifying after interruption:
A. I was naturally interested in finding out the true mental
state of Tomas Rodriguez and that was the chief reason why
15

I accepted and gave my cooperation to Messrs. Elias
Domingo and Florentino Herrera because had I found that
Tomas Rodriguez and Florentino Herrera because had I
found that Tomas Rodriguez was really insane, I should have
ordered his transfer to the San Lazaro Hospital or to other
places, and would not have left him in the General Hospital.
Pursuant to my desire, I saw Tomas Rodriguez in his room
alone twice to have interviews with his, he begging a person
whom I knew since several years ago; at the end of the
interviews I became convinced that there was nothing
wrong with him; I had not seen anything indicating that he
was insane and for this reason I accepted the request of my
companions and joined them; we have been on five
different occasions examining Tomas Rodriguez jointly from
the physical standpoint but chiefly from the standpoint of his
mental state; I have been there with Messrs. Herrera and
Elias Domingo, examining Tomas Rodriguez and submitting
to a mental test on the 28, 29, 10 and 31 of December and
the 22nd of January, 1924 five consecutive days in which
he have been together besides my particular visits.
Q. Will you place state the result of the observation you
made alone before those made by the three of you jointly?
A. I asked Tomas Rodriguez some questions when I went
alone there, I asked him were he was living formerly and he
well remembered that in Intramuros, Calle Real; I asked him
whether he remembered one Calderon who was living in
the upper floor of the house and then he told me yes; than I
asked him about his tenant by the name of Antonio Jimenez
and he told me yes, now I remember that he had two
daughters, Matilde and Paz. Then I told him that I had been
living in the house of the gentlemen, Antonio Jimenez
already dead in the upper story of the house belonged to
Tomas Rodriguez; I told him that Antonio Jimenez was his
tenant of the upper story, that is that he was living on the
ground floor and Antonio Jimenez upstairs and he
remembered all of this I also began to talk of my brother,
Felipe Calderon, who he said of course that he knew; he
remembered him because he was his companion and was
a successful attorney. This was when I had an interview with
him. Then in order to observe better and to be sure of my
judgment or opinion about the mental state of Tomas
Rodriguez, I saw him again and we began to speak of
something which I don't remember now. In fine, we talked of
things of interest and as I had finally accepted the request
of Drs. Elias Domino and Florentino Herrera to join then the
first and second time that Herrera, Domingo and myself
went there, no stenographic notes were taken of what
happened there.
Q. So that before joining Doctors Herrera and Domingo you
had already paid two visits to the patient? A. Yes, sir.
Q. From the result f the conversation you had with Tomas
Rodriguez on those two visits what is your opinion as to his
mental capacity? A. That he was sick; that he was weak,
but I have found absolutely no incoherence in his ideas; he
answered my questions well and as I was observing him
there were times when he did not remember things of the
present because this must be admitted but on the
other hand he had a wonderful memory of past events; in
talking with him, you would not notice in the conversation
any alteration in his mind nor that man had lost the
reasoning power or logic.
Q. Did you notice any loss of memory, or that his memory
was weakening about things of the past? A. About things
of the past, I mean that you talk to him now about specific
matters, and after about five or ten minutes he no longer
remembers what had been talked of.
x x x x x x x x x
Q. Do you remember the conversation you had with him for
the first time when the three of you paid a visit to the
patient? A. I don't remember the details, but I do
remember the questions I put to him. I asked D. Tomas
Rodriguez: You are an old man aged, sick: Yes, I am thinking
to make a will. But why don't you decide? There is no hurry
there is time to make a will, 'he said. Then in case you
decide to make a will, to whom are you going to leave your
property? Don't you have any relatives? I have a relative,
Vicente Lopez, my first cousin, and Margarita Lopez my first
cousin they are brothers.' In that case, to whom, do you
want to leave your property? Why, I don't have much, very
little, but I am decided to leave it to my cousin, Vicente
Lopez and his daughter Luz Lopez. Why would you not give
anything to Margarita Lopez? No because her husband is
very bad, 'to use his exact language is very bad.'
Q. Did you talk with him on that occasion about his estate?
A. Yes, sir, he told me that he had three estates, one on
Calle Magallanes, another on Calle Cabildo and the third
on Calle Juan Luna and besides he had money in the
Monte de Piedad and Hogar Filipino.
x x x x x x x x x
Q. From the question made by you and the answers given
by Mr. Tomas Rodriguez on that occasion, what is your
opinion as to his mental capacity? A. The following: That
the memory of Tomas Rodriguez somewhat failed as to
things of the present, but is all right with regard to matters or
facts of the past; that his ideas were incoherent; that the
thought with logic, argued even with power and generally
in some of the interviews I have arrived at the conclusion
that Tomas Rodriguez had an initiative of his own, did not
need that anybody should make him any suggestion
because he answered in such a way that if you permit me
now to show you my stenographic notes, they will prove to
you conclusively that he had an initiative of his own and
had no need of anybody making him any question. (S. R. p.
72.)
Doctor Elias Domingo, who was the attending physician for Tomas
Rodriguez throughout all the time that Rodriguez in the hospital had
examined him, was likewise certain that Rodriguez possessed sufficient
mentality to make a will. Among other things, Doctor Domingo
testified:
ARANETA: Q. Have you known D. Tomas Rodriguez?
Dr. DOMINGO: A. Yes, sir.
Q. Did you attend D. Tomas Rodriguez as physician? A.
Yes, sir.
Q. When did you begin to attend him as physician? A. On
November 28, until his death.
Q. On November 28 or October 28, 1923, do you
remember? A. I had been attending him as physician
from November 28th although it true that I had opportunities
to see and examine him during the months of October and
November.
Q. What was the object of your visits or attendance during
the months of October and November? A. It was for the
purpose of observing his mental state.
Q. Did you really examine his mental condition or capacity
during the months of October and November? A. Yes, sir.
16

Q. How many times did you visit him? A. I don't remember
exactly but I visited him about five or six times.
x x x x x x x x x
Q. Please tell us the result of your examination during those
months of October and November? A. I examined him
physically and mentally; I am not going to tell here the
physically result but the result of the mental examination,
and that is: General Conduct: In most of the times that I
have seen him I found him lying on his bed, smoking a
cigarette and asked for a bottle of lemonade from time to
time; I also observed that he was very careful when throwing
the ash of the cigarette, seeing to it that it did not fall on the
blankets; he also was careful not to throw the stub of the
cigarette in any place to avoid fire; I made more
observations as to his general conduct and I found that
sometimes Don Tomas could move within the place
although with certain difficulty. On two occasions I found
him seated, once seated at the table, seated in the chair,
and other on a rocking chair. I also examined his manner of
talking and to all questions that I put to him he answered
with a coherence and in a relevant manner, although
sometimes he showed eagerness and certain delay. I based
these points of my declaration on the questions which are
usually asked when making a mental examination for
instance I asked him, What is your name, 'and he correctly
answered Tomas Rodriguez; I asked him if he was married
and he answered 'No;' I asked him his profession and he
answered that formerly he was an attorney but that at the
time I was making the examination he was not practising the
profession; I asked him with what he supported himself and
he said that he lived upon his income, he said verbatim, 'I
live on my income.' I also asked him what the amount of him
income was and he answered that it was about P900; I
asked him what the source of this income was and he said
that it came from his property.
Q. Did you ask him about his property? A. No, at that
time.
Q. Proceed. A. I also observed his emotional status and
effectivity. I found it rather superficial, and he oftentimes got
angry due to his physical disease; I asked him if he had any
relatives and he answered correctly saying that he had. He
mentioned Vicente Lopez, Margarita Lopez, and Luz Lopez.
As to his memory. His memory of the past. He very easily
remembered past events and when he described them he
did it with such pleasure the he used to smile afterwards if
it was a fact upon which one must smile, His memory of
recent facts was very much lessened. I say this because on
various occasions and not having known me when he had a
better memory, after I had seen him thrice he remembered
my name and he recognized me. Insight and judgment. I
arrived at the conclusion that he had fair knowledge of
himself because he knew that he was sick and could not be
moving with ease, but he believed that he could perform
with sufficient ease mental acts; his judgment was also all
right because I asked him this question: 'Supposing that you
could find a bill of P5 in the vestibule of a hotel, what would
you do with it ?' He told me that he would take the bill and
give it to the manager in order that the latter may look for
the owner if possible. His reasoning. I found that he showed
a moderated retardation in the flow of his thought,
especially with regard to recent events, but was quite all
right as to past events, His capacity, He believed that he
was capable of thinking properly although what did not
permit him to do so was his physical decrepit condition. The
conclusion is that his memory is lost for recent events tho not
totally and diminution of his intellectual vigor. This is in few
words the result of my examination.
Tomas Rodriguez was likewise examined thoroughly by Doctors De los
Angeles, Tietze, and Burke. Doctor De los Angeles had been a witness
in the gurardianship proceedings and had seen the patient of
November 6 and 7, 1923. Doctor Tietze had also been a witness in the
guardianship case and had visited the patient on November 9 and 12,
1923, and on January 15, 1924. Doctors Tietze and Burke together
examined Rodriguez on January 17, 20, and 24, 1924. The three
physicians conducted a joint examination result, on March 15, 1924,
they prepared and signed the following:
MEDICAL CERTIFICATE
In the Matter of Tomas Rodriguez y Lopez, male, 76 years of
age, single and residing or being confined in the Philippine
General Hospital.
We, the undersigned Doctors, Sixto de los Angeles, W. B.
Burke, and Samuel Tietze, do hereby certify as follows:
1. That we are physicians, duly registered under the Medical
Act, and are in the actual practice of the medical
profession in the Philippines.
2. That on January 27th and 28th, and February 10th, 1924,
at the Philippine General Hospital, we three have with care
the diligence jointly and personally examined the person of
said Tomas Rodriguez y Lopez; and previous to these dated,
we have separately and partly jointly observed and
examined said patient on various occasions; Dr. Sixto de los
Angeles, at the patient's home, 246 Magallanes St., Manila,
on November 6th and 7th , 1923; Dr. Samuel Tietze, at the
patient's home on November 9th and 12th, 1923, and at the
Philippine General Hospital no January 17th, 20th, and 24,
1924; and as a result of the medical examinations and the
history of the case we found and hereby certify to the
following conclusions:
(a) That he was of unsound mind suffering from senile
dementia, or of mental impairment exceeding to a
pathological extent the unusual conditions and changes
found to occur in the involutional period of life.
(b) That he was under the influence of the above condition
continuously, at least from November, 1923, till the date of
our joint reexamination, January 27th and 28th, and
February 10th, 1924; and that he would naturally have
continued without improvement, as these cases of insanity
are due to organic pathological changes of the brain. This
form of mental disease is progressive in its pathological
tendency, going on to progressive atropy and degeneration
of the brain, the mental symptoms, of course, running
parallel with such pathological basis.
(c) That on account of such disease and conditions his mind
and memory were so greatly impaired as to make him
unable to know or to appreciate sufficiently the nature,
effect, and consequences of the business he was engaged
in; to understand and comprehend the extent and
condition of his properties; to collect and to hold in his mind
the particulars and details of his business transactions and his
relations to the persons who were or might have been the
objects of his bounty; and to free himself from the influences
of importunities, threats and ingenuities, so that with a
relatively less resistance, he might had been induced to do
what others would not have done.
3. We have diagnosed this case as senile demential of the
simple type, approaching the deteriorated stage upon the
following detailed mental examination:
17

(a) Disorder of memory. There was almost an absolute loss
of memory of recent events, to the extent that things and
occurrences seen or observed only a few minutes previously
were completely forgotten. Faces and names of person
introduced to him were not remembered after a short
moment even without leaving his bedside . He showed no
comprehension of the elemental routine required in the
management of his properties, i.e.: who were the lessees of
his houses, what rents they were paying, who was the
administrator of his properties, in what banks he deposited
his money or the amount of money deposited in such banks.
Regarding his personal relation, he forgot that Mr. Antonio
Ventura is the husband of his nearest woman cousin; the
Mrs. Margarita Lopez was married, saying that the latter was
single or spinster, in spite of the fact that formerly, during the
past twenty-five years, he was aware of their marriage life,
He did not know the names of the sons and daughters of Mr.
Vicente Lopez, one of his nearest relatives, even failing to
name Mrs. Luz Lopez de Bueno, a daughter of said Vicente
Lopez, and who now appears to be the only living
beneficiary of his will. He also stated that Mr. Vicente Lopez
frequently visited him in the hospital, though the latter died
on January 7th, 1924. He did not recognized and remember
the name and face of Doctor Domingo, his own physician.
However, the memory for remote events was generally
good, which is a characteristic symptom of senile dementia.
(b) Disorientation of time, place and persons. He could
not name the date when asked (day or month); could not
name the hospital wherein he was confined; and failed to
recognize the fact that Doctor Domingo was his physician.
(c) Disorders of perception. He was almost completely
indifferent to what was going on about him. He also failed to
recognize the true value of objects shown him, that is he
failed to recognized the 'Saturday Evening Post' nor would
he deny that it was a will when presented as such. He also
failed to show normal intellectual perception. Making no
effort to correlate facts or to understand matters discussed
in their proper light.
(d) Emotional deterioration. The patient was not known
during his time of physical incapacity to express in any way
or lament the fact that he was unable to enjoy the
happiness that was due him with his wealth. As a matter of
fact, he showed complete indifference. He showed loss of
emotional control by furious outbreaks over trifling matter
and actually behaved like a child; for example, if his food
did not arrive immediately of when his cigar was not lit soon,
he would becomes abusive in his language and show
marked emotional outburst. If the servants did not
immediately answer his call, he would break down and cry
as a child.
(e) Symptoms of decreased intellectual capacity. There
was a laxity of the internal connection of ideas. The patient
has shown no insight regarding his own condition. He did not
appreciate the attitude of the parties concerned in his case;
he would on several occasion become suspicious and fail to
comprehend the purpose of our examination. He was
inconsistent in his ideas and failed to grasp the meaning of
his own statements. When questioned whether he would
make a will, he stated to Doctor Tietze that he intended to
bequeath his money to San Juan de Dios Hospital and
Hospicio de San Jose. When He was informed, however, that
he had made a will on January 31, 1924, he denied the
latter statement, and failed to explain the former. Although
for a long time confined to bed and seriously ill for a long
period, he expressed himself as sound physically and
mentally, and in the false belief that he was fully able to
administer his business personally.
His impairment of the intellectual field was further shown by
his inability, despite his knowledge of world affairs, to
appreciate the relative value of the statement made by
Doctor Tietze as follows: 'We have here a cheque of P2,000
from the King of Africa payable to you so that you may
deposit it in the bank. Do you want to accept the cheque?'
His answer was as follows: 'Now I cannot give my answer. It
may be a surprise.' Such answer given by a man after long
experience in business life, who had handled real estate
property, well versed in the transaction of cheques, certainly
shows a breaking down of the above field. No proper
question were asked why the cheque was given by the
King, who the King was, why he was selected by the King of
Africa, or if there is a King of Africa at present. He further
shows doubt in his mental capability by the following
questions and answers:
"MARCAIDA: P. Tiene usted actualmente algn
asunto en los tribunales de justicia de Manila? -- R.
No recuerdo en este momento.
"P. De tener usted algn asunto propio en los
tribunales de justicia de Manila, a qu abogado
confiara usted la defensa del mismo?--R. Al Sr.
Marcaida, como conocido antiguo.
"P. Ha hablado usted y conferenciado alguna
vez o varias veces en estos das, o sea desde el 25
de octubre de 1923 hasta hoy, con algn
abogado para que le defendiera algn asunto
ante el Juzgado de Primera Instancia de Manila?--
R. Con ninguno, porque en caso de nombrar,
nombrara al Sr. Marcaida. (P. 5, deposition, Nov.
19, 1923.)
"ARANETA: P. No recuerda usted que usted me
ha encomendado como abogado para que me
oponga a que le declaren a usted loco o
incapacitado?--R. S, seor, quien ha solicitado?
(P. 9, deposition, Nov. 19, 1923.)
"Dr. DOMINGO: P. Don Toms, me conoce
usted? Se acuerda usted que soy el Doctor
Domingo?--R. S. (P. 7, sten. N., Jan. 28, 1924.)
"P. Quin soy, Don Toms, usted me conoce?--R.
No s. (P. 6, sten. N., Feb. 10, 1924.)
"Dr. NGELES: P. Me conoce usted, D. Toms?--R.
Le conozco de vista. (P. 6, sten. N., Jan. 28, 1924.)
"P. Nos vamos a despedir ya, Don Toms, de
usted. Yo soy el Doctor ngeles, me conoce
usted?--R. De nombre.
"P. Este es el Doctor Burke, le conoce usted?--R.
De nombre.
"P. Este es el Doctor Domingo, le conoce usted?--
R. De vista.
"P. Este es el Doctor Burke, recuerda usted su
nombre?--R. No. (P. 10, sten. N., Jan. 28, 1924.)
"P.Usted conoce a este Doctor? (Sealando al
Doctor Burke).--R. De vista; su nombre ya lo he
olvidado, ya no me acuerdo.
18

"P.Usted nos ve a los tres? (Doctores ngeles,
Burke y Tietze).--R. Ya lo creo.
"Dr. BURKE: P. Qu profesin tenemos?
(Sealando a los Sres. ngeles, Burke y Tietze).--R.
YO creo que son doctores.
"P. Y lso dos? (Sealando a los Doctores ngeles
y Tietze).--R. No. s.
"P. Y este seor? (Sealando al Doctor ngeles).-
-R. No me acuerdo en este momento. (P. 4. And 5,
sten. N., Feb. 10, 1924.)
(f) Other facts bearing upon the history of the case obtained
by investigation of Doctor Angeles:
I. Family History. His parents were noted to be of nervous
temper and irritable.
II. Personal history. He was a lawyer, but did not pursue his
practice, devoting the greater part of his life to collecting
antiquities, He was generally regarded by his neighbors as
miserly and erratic in the ordinary habits of life. He lead a
very unhygienic life, making no attempt to clean the filth of
dirt that was around him. He was neglectful in personal
habits. On April, 1921, he suffered an injury to his forehead,
from which he became temporarily unconscious, and was
confined in the Philippine General Hospital for treatment. He
frequently complained of attacks of dizziness and
headache, following this injury; suffered form a large hernia;
and about two years ago, he was fined for failure in filing his
income tax, from which incident, we have reason to
believe, the onset of his mental condition took place. This
incident itself can most probably be considered as a failure
of memory. His condition became progressively worse up to
his death.
4. The undersigned have stated all the above facts
contained in this certificate to the best of our knowledge
and belief.
Manila, P.I., March 15, 1924.
(Sgd.) SIXTO DE LOS ANGELES
W.B. BURKE, M.D.
SAMUEL TIETZE
(Exhibit 33 in relation with Exhibits 28 and 29.)
Another angle to the condition of the patient on or about January 3,
1924, is disclosed by the treatment record kept daily by the nurses, in
which appear the nurse's remarks. (Exhibits 8-A, 8-B, and 8-C.) In this
connection, the testimony of the nurses is that Rodriguez was in the
habit for no reason at all of calling "Maria, where are my 50 centavos,
where is my key." In explanation of the observation made by the
nurses, the nurse Apolonio Floreza testified.
Direct questions of Attorney OCAMPO:
Q. Among your observations on the 1st of January, 1924, you
say 'with pains all over the body, and uttered some
incoherent words of the same topics whenever is
awakened.' How could you observe that he had pains all
over the body?
APOLONIO FLOREZA, nurse: A. I observed that by the fact
that whenever I touched the body of the patient he
complained of some pain.
Q. On what part of the body did you touch him? A. On all
the parts of his body.
x x x x x x x x x
Q. How did you touch him, strongly or not? A. Slightly.
Q. When you touched him slightly, what did he do? A. He
said that it was aching.
Q. What words did he say when, according to your note, he
uttered incoherent words whenever he awakes? A. As for
instance, 'Maria,' repeating it 'Where are my 50 centavos,
where is my key?'
Q. Did you hear him talk of Maria? A. Only the word
Maria.
Q. How long approximately was he talking uttering the
name of 'Maria, Where are my 50 centavos,' and where is
my key? A. For two or three minutes.
Q. Can you tell the court whether on those occasions when
he said the name of Maria he said other words and was
talking with somebody? A. He was talking to himself.
Q. This remark on Exhibit 8-B when was it written by you? A.
January 2, 1924.
Q. In the observation correspondingly to January 2, 1924 you
say, 'With pains over the body,' and later on talked too
much whenever patient is awakened.' How did you happen
to know the pain which you have noted here? A. The pains
all over the body, I have observed them when giving him
baths.
Q. Besides saying that it ached when you touched the
body, do you know whether he did any extraordinary thing?
A. You mean to say acts?
Q. Acts or words? A. Yes, sir, like those words which I have
already said which he used to say Maria, the key, 50
centavos.
Q. You say that he called Maria. What did he say about
Maria on that date January 2, 1924? A. He used to say
Maria where is Maria?
Q. On that date January 2, 1924, did you answer him when
he said Maria? A. No sir.
Q. In this observation of yours appearing on page 8-C you
say among other things with pain all over the body and
shouted whenever he is given injection.' Did you really
observe this in the patient? A. Yes, sir.
Q. How did he shout?
ARANETA: Objection as being immaterial.
COURT: Overruled.
19

ARANETA: Exception.
A. In a loud voice.
Q. Besides shouting do you remember whether he said
anything? A . He repeated the same words I have said
before Maria the 50 centavos the key.
Q. When did this observation occur which appear on page
8-C? A. On January 3, 1924. (S. R. p. 5595.)
On certain facts pertaining to the condition of Tomas Rodriguez there
is no dispute. On January 3, 1924, Rodriguez had reached the
advanced age of 76 years. He was suffering from anemia, hernia
inguinal, chronic dypsia, and senility. Physically he was a wreck.
As to the mental state of Tomas Rodriguez on January 3, 1924, Doctors
Calderon, Domingo and Herrera admit that he was senile. They,
together with Doctors De los Angeles, Tietze, and Burke, further
declare that his memory however for remote events was generally
good. He was given to irrational exclamations symptomatic of a
deceased mind.
While, however, Doctors Calderon Domingo, and Herrera certify that
the intellectual faculties of the patient are "sound, except that his
memory is weak," and that in executing the will the testator had full
understanding of the act he was performing and full knowledge of the
contents thereof, Doctors De Los Angeles, Tietze and Burke certify that
Tomas Rodriguez was of unsound mind and that they diagnosed his
case as senile dementia of the simple type approaching the
deteriorated stage. Without attempting at this stage to pass in
judgment on the antagonistic conclusions of the medical witnesses, or
on other disputed point, insofar as the facts are concerned, a
resolution of the case comes down to this: Did Tomas Rodriguez on
January 3, 1924, possess sufficient mentality to make a will, or had he
passed so far along in senile dementia as to require the court to find
him of unsound? We leave the facts in this situation to pass on to a
discussion of the legal phases of the case.
B. Law. The Code of Civil Procedure prescribes as a requisite to the
allowance of a will that the testator be of "sound mind" (Code of Civil
Procedure, sec. 614). A "sound mind" is a "disposing mind." One of the
grounds for disallowing a will is "If the testator was insane or otherwise
mentally incapable of the execution." (Code of Civil Procedure, sec.
634 [2].) Predicated on these statutory provisions, this court has
adopted the following definition of testamentary capacity:
"'Testamentary capacity is the capacity to comprehend the nature of
the transaction in which the testator is engaged at the time, to
recollect the property to be disposed of and the persons who would
naturally be supposed to have claims upon the testator, and to
comprehend the manner in which the instrument will distribute his
property among the objects of his bounty.'" (Bugnao vs. Ubag [1909],
14 Phil., 163, followed in Bagtas vs. Paguio [1912], 46 Phil., 701.) The
mental capacity of the testator is determined as of the date of the
execution of his will (Civil Code, art. 666).
Various tests of testamentary capacity have been announced by the
courts only later to be rejected as incomplete. Of the specific tests of
capacity, neither old age, physical infirmities, feebleness of mind,
weakness of the memory, the appointment of a guardian, nor
eccentricities are sufficient singly or jointly to show testamentary
incapacity. Each case rests on its own facts and must be decided by
its own facts.
There is one particular test relative to the capacity to make a will
which is of some practical utility. This rule concerns the nature and
rationality of the will. Is the will simple or complicated? Is it natural or
unnatural? The mere exclusion of heirs will not, however, in itself
indicate that the will was the offspring of an unsound mind.
On the issue of testamentary capacity, the evidence should be
permitted to take a wide range in order that all facts may be brought
out which will assist in determining the question. 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. The evidence of those present at the execution of the will
and of the attending physician is also to be relied upon. (Alexander
on Willis, vol. I, pp. 433, 484; Wharton & Stille's Medical Jurisprudence,
vol. I pp. 100 et seq.)
The presumption is that every adult is sane. It is only when those
seeking to overthrow the will have clearly established the charge of
mental incapacity that the courts will intervene to set aside a
testamentary document. (Hernaez vs. Hernaez [1903], 1 Phil., 689;
Bagtas vs. Paguio, supra.)
Counsel for the appellee make capital of the testator being under
guardianship at the time he made his will. Citing section 306 of the
Code of Civil Procedure and certain authorities, they insist that the
effect of the judgment is conclusive with respect to the condition of
the person. To this statement we cannot write down our conformity.
The provisions of the cited section were taken from California, and
there the Supreme court has never held what is now urged upon us by
the appellee. The rule announced that in some states, by force of
statute, the finding of insanity is conclusive as to the existence of
insanity during the continuance of adjudication, is found to rest on
local statutes, of which no counterpart is found in the Philippines. (32
C.J., 647; Gridley vs. Boggs [1882], 62 Cal., 190; In the matter of the
Estate of Johnson [1881], 57 Cal., 529.) Even where the question of
insanity is out in issue in the guardianship proceedings, the most that
can be said for the finding is that it raises a presumption of incapacity
to make a will but does not invaluable the testament if competency
can be shown. The burden of providing sanity in such case is cast
upon the proponents.
It is here claimed that the unsoundness of mind of the testator was the
result of senile dementia. This is the form of mental decay of the aged
upon which will are most often contested. A Newton, Paschal, a
Cooley suffering under the variable weather of the mind, the flying
vapors of incipient lunacy," would have proved historic subjects for
expert dispute. Had Shakespeare's King Lear made a will, without any
question it would have invited litigation and doubt.
Senile dementia usually called childishness has various forms and
stages. To constitute complete senile dementia there must be such
failure of the mind as to deprive the testator of intelligent action,. In
the first stages of the diseases, a person may possess reason and have
will power. (27 L. R. A., N. S. [1910], p. 89; Wharton & Stille's Medical
Jurisprudence, vol. I. pp. 791 et seq.; Schouler on Wills, vol. I, pp. 145 et
seq.)
It is a rather remarkable coincidence that of all the leading cases
which have gone forth from this court, relating to the testator having a
sound and disposing mind, and which have been brought to our
notice by counsel, every one of them has allowed the will, even when
it was necessary to reverse the judgment of the trial court. A study of
these cases discloses a consistent tendency to protect the wishes of
the deceased whenever it be legally possible. These decisions also
show great tenderness on the part of the court towards the last will
and testament of the aged. (See Hernaez vs. Hernaez [1903], 1 Phil.,
689, per Arellano, C. J., In the matter of the will o f Butalid [1908] 10
Phil., 27 per Arellano, C. J.; Bugnao vs. Ubag [1909] 14. Phil., 163, per
Carson, J.; Macapinlac vs. Alimurong [1910], 16 Phil., 41, per Arellano,
C.J.; Bagtas vs. Paguio [1912], 22 Phil., 227, per Trent, J.; Galvez vs.
Galvez [1913], 26 Phil., 243, per Torres, J.; Samson vs. Corrales Tan
Quintin [1923], 44 Phil., 573, per Ostrand, J.; and Jocson vs. Jocson
[1922], 46 Phil., 701, per Villamor, J.) Because of their peculiar
applicability, we propose to make particular mention of four of the
earlier cases of this court.
In the case of Hernaez vs. Hernaez supra the subject of the action was
the will executed by Dona Juana Espinosa. The annulment of the will
20

was sought first upon the ground of the incapacity of the testatrix. She
was over 80 years of age, so ill that three days extreme unction, and
two days afterwards she died. Prior thereto she walked in a stooping
attitude and gave contradictory orders," as a result of her senile
debility." The chief Justice reached the conclusion that neither from
the facts elicited by the interrogatories nor the documents presented
"can the conclusion be reached that the testatrix was deprived of her
mental faculties." The will was held valid and efficacious.
In the case of In the matter of the will of Butalid, supra, the will was
contested for the reason that Dominga Butalid at the date of the
execution of the document was not in the date of the execution of
the document was not in the free use of her intellectual powers, she
being over 90 years of age, lying in bed seriously ill, senseless and
unable to utter a single word so that she did not know what she was
doing when she executed the will while the document was claimed to
have been executed under the influence and by the direction of one
of the heirs designated in the will. Yet after an examination of the
evidence in the will. Yet after an examination of the evidence in the
will. The Chief Justice rendered judgment reversing the judgment
appealed from and declaring the will presented for legalization to be
valid and sufficient.
In the case of Bugnao vs. Ubag, supra the court gave credence to the
testimony of the subscribing witnesses who swore positively that at the
time of the execution of the will the testator was of sound mind and
memory. Based on these and other facts, Mr. Justice Carson, speaking
for court, laid down the following legal principles:
Between the highest degree of soundness of mind and
memory which unquestionably carries with it full
testamentary known as insanity or idiocy there are
numberless degrees of mental capacity or incapacity and
while on one hand it had been held that mere weakness of
mind or partial imbecility from disease of body, or from age,
will to render a person incapable of making a will a weak or
feeble minded person may make a valid will provided he
has understanding and memory sufficient to enable him to
know what he is about and how or to whom he is disposing
of his property' (Lodge vs. Lodge, 2 Houst. [Del.] 418); that,
"To constitute a sound be unbroken or unimpaired,
unshattered by disease or otherwise (Sloan vs. Maxwell, # N.
J. Eq., 563); that it has not been understood that a testator
must possess these qualities (of sound and disposing mind
and memory) in the highest degree. . . .Few indeed would
be the wills confirmed it this is correct. Pain, sickness, debility
of body from age or infirmity, would according to its
violence or duration in a greater or less degree, break in
upon, weaken, or derange the mind, but the derangement
must be such as deprives him of the rational faculties
common to man' (Den. vs. Vancleve, 5 N. J. L., 680); and
that Sound mind does not mean a perfectly balanced mind.
The question of soundness is one of degree' (Boughton vs.
Knight. L. R., 3 P. & D., 64; 42 L. P. P., 25); on the other hand, it
has been held that testamentary incapacity does not
necessarily require that a person shall actually be insane or
of an unsound mind. Weakness of intellect, whether it arises
from extreme old age, from disease, or great bodily
infirmities of suffering, or from all these combined, may
render the testator in capable of making a valid will,
providing such weakness really disqualifies for from knowing
or appreciating the nature, effects, or consequences of the
act she is engaged in (Manatt vs. Scott, 106 Iowa, 203; 68
Am. St. Rep., 293, 302).
In the case of Nagtas vs. Paquio, supra, the record shows that the
testator for some fourteen or fifteen years prior to the time of his death
suffered from a paralysis of the left side of his body, that a few years
prior to his death his hearing became impaired and that he had lost
the power of speech. However, he retained the use of his hand and
could write fairly well. Through the medium of signs, he was able to
indicate his wishes to his family. The will was attacked n the ground
that the testator lacked mental capacity at the time of its execution.
The will was nevertheless admitted to probate, Mr. Justice Trent,
speaking for the court, announcement the following pertinent legal
doctrines:
* * * There are many cases and authorities which we might
cite to show that the courts have repeatedly held that mere
weakness of mind and body, induced by age and disease
do not render a person incapable of making a will. The law
does not require that a person shall continue in the full
enjoyment and use of his pristine physical and mental
powers in order to execute a valid will. If such were the legal
standard few indeed would be the number of wills that
could meet such exacting requirements. The authorities,
both medical and legal are universal in the statement that
the question of mental capacity is one of degree and that
there are many graduations from the highest degree of
mental soundness to the lowest conditions of diseased
mentality which are denominated as insanity and idiocy.
The right to dispose of property by testamentary disposition is
as sacred as any other right which a person may exercise
and this right should be nullified unless mental incapacity is
established in a positive and conclusive manner. In
discussing the question of testamentary capacity, it is stated
in volume 28, page 70, of the American and English
Encyclopedia of Law that
'Contrary to the very prevalent lay impression perfect
soundness of mind is not essential to testamentary capacity.
A testator may be afflicted with a variety of mental
weakness, disorders or peculiarities and still be capable in
law of executing a valid will.' (See the numerous cases there
cited in support of this statement.)
The rule relating to testamentary capacity is stated in Buswel
on Insanity, section 365 and quoted with approval in
Campbell vs. Campbell (130 Ill. 466) as follows:
To constitute a sound and disposing mind, it is not necessary
that the mind shall be wholly unbroken unimpaired or
unshattered by disease or otherwise or that the testator
should be in the full possession of his reasoning faculties.
In note, 1 Jarnan on Wills, 38, the rule is thus stated:
The question is not so much, what was the degree of
memory possessed by the testator as had, he a disposing
memory? Was he able to remember the property he was
about to bequeth the manner of distributing it and the
object of his bounty? In a word, were his mind and memory
sufficiently sound to enable him to know and understand the
business in which he was engaged at the time when he
executed his will.' (See authorities there cited)
In Wilson vs. Mitchell (101 Penn., 495), the following facts
appeared upon the trial of the case: The testator died at the
age of nearly 102 years. In his early years he was an
intelligent and well informed man. About seven years prior
to his death he suffered a paralytic stroke and from that
time his mind and memory were much enfeebled. He
became very dull of hearing and in consequence of the
shrinking of his brain he was affected with senile cataract
causing total blindness. He became filthy and obscene in his
habits, although formerly he was observant of the proprieties
of life. The court, in commenting upon the case, said:
Neither age, nor sickness, nor extreme distress, nor debility of
body will affect the capacity to make a will, if sufficient
intelligence remains. The failure of memory is not sufficient to
21

create the incapacity, unless it be total or extend to his
immediate family to property. . . .
x x x x x x x x x
Dougal (the testator) had lived over one hundred years
before he made the will and his physical and mental
weakness and defective memory were in striking contrast
with their strength in the meridian of his life. He was blind; not
deaf, but hearing impaired; his mind acted slowly, he was
forgetful of recent events, especially of names and
repeated questions in conversation; and sometimes, when
aroused from sleep or slumber, would seem bewildered. It is
not singular that some of those who had known him when
he was remarkable for vigor and intelligence are of the
opinion that his reason was so far gone that he was
incapable of making a will, although they never heard him
utter an irrational expression.
In the above case the will was sustained. In the case at bar
we might draw the same contract as was pictured by the
court in the case just quoted. . . .
The particular difference between all of the Philippine case which are
cited and the case at bar are that in none of the Philippine cases was
there any declaration of incomplicated and in none of them were the
facts quite as complicated as they are here. A case in point where
the will was contested, because the testator was not of sound and
disposing mind and memory and because at the time of the making
of the will he was acting under the undue influence of his brothers and
where he had a guardian when he executed his will, is Ames' Will
([1902] 40 Ore., 495). Mr. Justice Moore, delivering the opinion of the
court, in part said:
It is contended by contestant's counsel that on the day said
pretended will purports to have been executed, Lowell was
declared incompetent by a court which had jurisdiction of
the person and subject-matter and that the decree therein
appointing a guardian of his person and estate raises the
distable presumption that he did not possess sufficient
testamentary capacity at the time to overcome which
required evidence so strong as to leave no reasonable
doubt as to his capacity to make a valid will, and the
testimony introduced by the proponent being insufficient for
that purpose the court erred in admitting it to probate.
The appointment of a guardian of a person alleged to
be non compos mentis, by a court having jurisdiction must
necessarily create a presumption of the mental infirmity of
the ward; but such decree does not conclusively show that
the testamentary capacity of the person under
guardianship is entirely destroyed and the presumption thus
created may be overcome by evidence proving that such
person at the time he executed a will was in fact of sound
and disposing mind and memory: Stone vs. Damon, 12
Mass., 487; Breed vs. Pratt, 18 Pick, 115: In re Slinger's Will, 72
Wis., 22 (37 N. W. 236).
The testimony shows that the testator retained a vivid
recollection of the contents of the books he had read and
studied when he was young but that he could not readily
recall to his mind the ordinary incidents of his later life. The
depth and intensity of mental impression always depend
upon and are measured by the degree of attention given to
the perception of truth, which demands reflection; and
hence the inability of a person to recollect events and
hence the inability is evidence of mental decay, because it
manifest a want of power on concentration of the mind. The
aged live in the past and the impression retained in their
minds are those that were made in their younger days,
because at that period of their lives they were able to
exercise will power by giving attention. While the inability of
a person of advanced years to remember recent events
distinctly undoubtedly indicates a decay of the human
faculties, it does not conclusively establish senile dementia,
which is something more than a mere loss of mental power,
resulting from old age and is not only a feeble condition of
the mind but a derangement thereof. . . . The rule is settled
in this state that if a testator at the time he executes his will
understand the business in which he is engaged and has a
knowledge of his property and how he wishes to dispose of it
among those entitled to his bounty, he possess sufficient
testamentary capacity, notwithstanding his old age, sickness
debility of body, or extreme distress.
x x x x x x x x x
It is contented by contestant's counsel that if Lowell at the
time he executed the pretended will, was not wholly lacking
in testamentary capacity, he was, in consequence of age ill
health, debility of body and infirmity of will power, Andrew
and Joseph having knowledge thereof took advantage of
his physical and mental condition and unduly influenced
him to device and bequeth his property in the manner
indicated, attempting thereby to deprive the contestant of
all interest therein except such as was given her by statute. .
. . Assuming that he was easily persuaded and that his
brothers and the persons employed by them to care for him
took advantage of his enfeebled condition and prejudiced
his mind against the contestant did such undue influence
render the will therefore executed void? . . . When a will has
been properly executed, it is the duty of the courts to
uphold it, if the testator possessed a sound and disposing
mind and memory and was free from restraint and not
acting under undue influence notwithstanding sympathy for
persons legally entitled to the testator's bounty and a sense
of innate justice might suggest a different testamentary
disposition.
Believing, as we do, that the findings of the circuit court are
supported by the weight of the testimony its decree is
affirmed.
Insofar as the law on testamentary capacity to make a will is
concerned and carrying alone one step further the question
suggested at the end of the presentation of the facts on the same
subject a resolution of the case comes down to this: Did Tomas
Rodriguez on January 3, 1924, possess sufficient mentality to make a
will which would meet the legal test regarding testamentary capacity
and have the proponents of the will carried successfully the burden of
proof and shown him to be of sound mind on that date?
II. UNDUE INFLUENCE
A. Facts. The will was attacked on the further ground of undue
influence exercised by the persons benefited in the will in
collaboration with others. The trial judge found this allegation to have
been established and made it one of the bases of his decision. it is
now for us to say if the facts justify this finding.
Tomas Rodriguez voluntary named Vicente F. Lopez as his
administrator. The latter subsequently became his guardian. There is
every indication that of all his relatives Tomas Rodriguez reposed the
most confidence in Vicente F. Lopez and his daughter Luz Lopez de
Bueno. Again, it was Vicente F. Lopez, who, on the suggestion of
Rodriguez secured Maximino Mina to prepare the will, and it was Luz
Lopez de Bueno who appears to have gathered the witnesses and
physicians for the execution of the will. This faction of the Lopez family
was also a favor through the orders of Doctor Domingo as to who
could be admitted to see the patient.
22

The trial judge entertained the opinion that there existed "a
preconceived plan on the part of the persons who surrounded Tomas
Rodriguez" to secure his signature to the testament. The trial judge
may be correct in this supposition. It is hard to believe, however, that
men of the standing of Judge Mina, Doctors Calderon, Domingo,
Herrera, and De Asis and Mr. Legarda would so demean themselves
and so fully their characters and reputation as to participate in a
scheme having for its purpose to delude and to betray an old man in
his age, rather named was acting according to the best of his ability
to assist in a legitimate act in a legitimate manner. Moreover,
considering the attitude of Tomas Rodriguez toward Margarita Lopez
and her husband and his apparent enmity toward them, it seems fairly
evident that even if the will had been made in previous years when
Rodriguez was more nearly in his prime, he would have prepared
somewhat a similar document.
B. LAW. One of the grounds for disallowing a will is that it was
procured by undue and improper pressure and influence on the art of
the beneficiary or some other person for his benefit (Code of Civil
Procedure, sec., 634[4]). Undue influence, as here mentioned in
connection with the law of wills and as further mentioned in the Civil
Code (art. 1265), may be defined as that which compelled the
testator to do that which is against the will from fear the desire of
peace or from other feeling which is unable to resist.
The theory of undue influence is totally rejected as not proved.
III. JUDGMENT
To restate the combined issued of fact and law in this case pertaining
to testamentary capacity: Did Tomas Rodriguez on January 3, 1924,
possess sufficient mentality to make a will which would meet the legal
test regarding testamentary capacity and have the proponents of the
will carried successfully the burden of proof and shown him to be of
sound mind on that date?
Two of the subscribing witnesses to the will, one a physician clearly to
the regular manner in which the will was executed and to the
testator's mental condition. The other subscribing witness, also, a
physician on the contrary testified to a fact which, if substantiated,
would require the court to disallow the will. The attending physician
and three other eminent members of the medical fraternity, who were
present at the execution of the will, expressed opinions entirely
favorable to the capacity of the testator. As against this we have the
professional speculations of three other equally eminent members of
the medical profession when the will was executed. The advantage
on those facts is all with those who offer the will for probate.
The will was short. It could easily be understood by a person in physical
distress. It was reasonable, that is, it was reasonable if we take into
account the evident prejustice of the testator against the husband of
Margarita Lopez.
With special reference of the definition of testamentary capacity, we
may say this: On January 3, 1924, Tomas Rodriguez, in our opinion
comprehended the nature of the transaction in which he was
engaged. He had two conferences with his lawyer, Judge Mina, and
knew what the will was to contain. The will was read to him by Mr.
Legarda. He signed the will and its two copies in the proper places at
the bottom and on the left margin. At that time the testator
recollected the property to be disposed of and the persons who
would naturally be supposed to have claims upon him While for some
months prior to the making of the will he had not manage his property
he seem to have retained a distinct recollection of what it consisted
and of his income. Occasionally his memory failed him with reference
to the names of his relatives. Ordinarily, he knew who they were, he
seemed to entertain a prediliction towards Vicente F. Lopez as would
be natural since Lopez was nearest in which the instrument distributed
the property naming the objects of his bounty. His conversations with
Judge Mina disclosed as insistence on giving all of his property to the
two persons whom he specified.
On January 3, 1924, Tomas Rodriguez may have been of advanced
years, may have been physically decrepit, may have been weak in
intellect, may have suffered a loss of memory, may have had a
guardian and may have a been extremely eccentric, but he still
possessed the spark of reason and of life, that strength of mind to form
a fixed intention and to summon his enfeebled thoughts to enforce
that intention, which the law terms "testamentary capacity." That in
effect is the definite opinion which we reach after an exhaustive and
exhausting study of a tedious record, after weighing the evidence for
the oppositors, and after giving to the case the serious consideration
which it deserves.
The judgment of the trial court will be set aside and the will of Tomas
Rodriguez will be admitted to probate without special
pronouncement as to costs in this instance.
Avancea, C. J., Johnson, Villamor, Johns, Romualdez, and Villa-Real,
JJ., concur.
G.R. No. L-39033 November 13, 1933
In re will of the late Matea Abella. MONS. SANTIAGO
SANCHO, applicant-appellee,
vs.
MARCIANA ABELLA, opponent-appellant.
Sotto and Astilla for appellant.
B. Quitoriano for appellee.

VILLA-REAL, J.:
This is an appeal taken by the opponent Marciana Abella from the
judgment rendered by the Court of First Instance of Ilocos Sur, the
dispositive part of which reads as follows:
Wherefore, this court is of the opinion, and so holds, that the
opposition filed by Marciana Abella is without merit and,
therefore, it is hereby denied. The application filed herein is
granted and the document, Exhibit A, is hereby ordered
and decreed probated as the last will and testament of the
late Matea Abella. So ordered.
In support of her appeal, the appellant assigns the following alleged
errors in the decision of the court a quo, to wit:
1. The lower court erred in holding that Matea Abella was in
the full enjoyment of her mental faculties and executed the
document, Exhibit A, as a true expression of her last will.
2. The lower court erred in holding that the requirements of
the law have been complied with in the execution of the
will, Exhibit A.
3. The lower court erred in holding that when the late Matea
Abella affixed her alleged signatures to the will, Exhibit A,
she did not act under the illegal and undue influence of
certain legatees.
4. The lower court erred in decreeing the probate of the will,
Exhibit A.
The following facts have been proven by a preponderance of
evidence presented during the trial, to wit:
23

The testatrix, Matea Abella, resident of the municipality of Sinait, Ilocos
Sur, had been informed that Dr. Antonio Querol of San Fernando La
Union, was a good physician. On April 13, 1932, she left her home
situated in the said municipality of Sinait, accompanied by her niece,
Filomena Inay, to consult the said physician in his clinic in San
Fernando, La Union, stopping at the convent of the parish church of
the said municipality, in charge of Father Cordero with whom she was
acquainted he having been the parish priest of Sinait. During her stay
in the said convent, she went to Dr. Antonio Querol's clinic twice within
the period of one week accompanied by her aforesaid niece,
Filomena Inay, to consult the said physician who, after submitting her
to a general medical examination, found that she was suffering from
dyspepsia and cancer of the stomach.
On or about April 26, 1932, Matea Abella ordered a sexton of the
convent to call Attorney Teodoro R. Reinoso to whom she expressed
her desire to make a will, in the presence of the Father Cordero's sister,
Father Zoilo Aguda, Macario Calug and the fiscal of the convent.
Inasmuch as the aforesaid attorney had to attend to other business,
he could not finish his interview with the testatrix on the first day and
had to continue it the following day, also in the presence of Father
Cordero, his sister, Filomena Inay and some children who were then at
the convent. Inasmuch as he did not finish the interview on the
second day, the said attorney returned again on the afternoon of the
28th and continued it in the presence of the same persons who
entered and left the sala. At the end of the interview, Matea Abella
ordered he niece, Filomena Inay, to bring her some papers which
were in her trunk, which she delivered to the said attorney. After the
will had been drafted in Ilocano, the dialect of the testatrix, Macario
Calug read it to her and she approved it. When the will had been
copied clean, it was again read to the testatrix and she express her
approval thereof, but inasmuch as it was rather late at night, she did
not care to sign the same suggesting that it be postponed to the
following day, April 29, 1932, which was done. At about 7:30 o'clock
on the morning of April 29, 1932, the signing of the will took place in
the corridor of the convent. The testatrix Matea Abella was the first to
sign it on a table in the presence of each and every one of the
instrumental witnesses thereto and of other persons, including Father
Cordero. After the testatrix, each of the instrument witnesses signed in
the presence of the testatrix and of each and every one of the other
witnesses. After the will had been signed, Attorney Teodoro R. Reinoso
delivered the original and the copies thereof to the testatrix, retaining
one for his file. On July 3, 1932, Matea Abella died of the senile debility
in the municipality of Sinait at the age of 88 years.
The opponent herein attempted to prove that the testatrix was deaf
and that her eyesight was defective; that when one moved away
from her and again approached her she was unable to recognize
him; that it was necessary to shout into her ear to call her for meals;
that she used to urinate on her clothes without being aware of it; that
she had a very poor memory inasmuch as she used to try to collect
from her debtors in spite of the fact that they had already paid their
debts; that once, although she had sold a parcel of land for P60 she
said she had sold it for P160; that she was unable to go downstairs
without assistance; that when she was called at mealtime she used to
answer: "Why, I have already eaten"; that she could not remember her
properties nor the names of her tenants; that she could no longer
read; that she often repeated to her tenants the same questions
regarding their crops; that she had been suffering from the disabilities
for more than two months previous to her death; that the deceased
complained of headache and of stomachache; that she already
began to be dotty five years before, and particularly a few days
previous to her death; that in her will she bequeathed properties
which she had already donated to other persons.
We are face to face with two divergent theories regarding the mental
state of the testatrix Matea Abella at the time of the execution of her
will, Exhibit A. The opponent claims that, inasmuch as the testatrix was
88 years of age when she made her will, she was already suffering
from senile debility and therefore her mental faculties were not
functioning normally anymore and that she was not fully aware of her
acts. As an indication of her senile debility, she attempted to prove
that the testatrix had very poor memory in connection with her
properties and interest; that she could not go downstairs without
assistance, and that she could not recall her recent acts.
On the other hand, as to the mental sanity of the testatrix at the time
of the execution of her will, we have the undisputed fact of her having
left her home in Sinait, Ilocos Sur, on April 13, 1932, in order to go to San
Fernando, La Union, to consult Dr. Antonio
Querol of whose ability she had heard so much regarding her
headaches and stomach trouble, stopping at the convent of the
parish church; the fact of her having walked twice to the aforesaid
doctor's clinic, accompanied by her niece, Filomena Inay; the fact
that she had personally furnished the aforesaid doctor with all the
necessary data regarding the history of her illness the fact of her
having brought with her in her trunk the deeds to her properties; the
fact of her having called for Attorney Teodoro R. Reinoso; the fact of
her having personally furnished said attorney all the data she wished
to embody in her relative to her properties and the persons in whose
favor she wished to bequeath them; the fact of her not wishing to sign
her will on the night of April 28, 1932, but the following day, in order to
be able to see it better, and the fact of her having affixed her
signature, in her own handwriting, to the original as well as to the
copies of her will which consisted of nine pages. All these data show
that the testatrix was not so physically weak, nor so blind, nor so deaf,
nor so lacking in intelligence that she could not, with full
understanding thereof, dispose of her properties and make a will.
Neither senile debility, nor blindness, nor deafness, nor poor memory, is
by itself sufficient to incapacitate a person for making his ill (Avelino vs.
De la Cruz, 21 Phil., 521; Bagtas vs. Paguio, 22 Phil., 227; Jocson vs.
Jocson, 46 Phil., 701; Amata and Almojuela vs. Tablizo, 48 Phil., 485;
Torres and Lopez de Bueno vs. Lopez, 48 Phil., 772; 28 R.C.L., p. 94, par.
44). The mere fact that in her will Matea Abella disposed of properties,
which she had already donated to other persons at a prior date, is not
an indication of mental insanity. At most it constitutes forgetfulness or
a change of mind, due to ignorance of the irrevocability of certain
donations.lawphil.net
It is insinuated that the testatrix has been unduly influenced in the
execution of her will. There is nothing in the records establishing such
claim either directly or indirectly. The fact of her having stopped at the
convent of the parish church of San Fernando, La Union, is not unusual
in the Philippines where, due to lack of hotels, the town convents are
usually given preference by strangers because they are given better
accommodations and allowed more freedom. In the present case,
the testatrix Matea Abella was a stranger in San Fernando, La Union.
Inasmuch as Father Cordero, the parish priest of the said town, was
well known to her having served in the church of Sinait, Ilocos Sur, in
the same capacity, she did not have any difficulties in obtaining
accommodations in his convent. The fact that Matea Abella stopped
at a convent and enjoyed the hospitality of a priest who gave her
accommodations therein, nor the fact that the will was executed in
the convent in question in the presence of the parish priest and
witnessed by another priest, could certainly not be considered as an
influence which placed her under the obligation to bequeath of her
property to the bishop of said diocese.
In view of the foregoing considerations, we are of the opinion and so
hold: (1) That neither senile ability, nor deafness, nor blindness, nor
poor memory, is by itself sufficient to establish the presumption that the
person suffering therefrom is not in the full enjoyment of his mental
faculties, when there is sufficient evidence of his mental sanity at the
time of the execution of the will; and (2) that neither the fact of her
being given accommodations in a convent, nor the presence of the
parish priest, nor a priest acting as a witness, constitutes undue
influence sufficient to justify the annulment of a legacy in favor of the
bishop of a diocese made in her will by a testatrix 88 years of age,
suffering from defective eyesight and hearing, while she is stopping at
a convent within the aforestated diocese.
Wherefore, not finding any error in the judgment appealed from, it is
hereby affirmed in toto, with the costs against the appellant. So
ordered.
24

Malcolm, Abad Santos, Hull, and Imperial, JJ., concur.
G.R. Nos. L-46430-31 July 30, 1979
FRANCISCA ALSUA-BETTS, JOSEPH O. BETTS, JOSE MADARETA, ESTEBAN
P. RAMIREZ, and THE REGISTER OF DEEDS FOR ALBAY
PROVINCE, petitioners,
vs.
COURT OF APPEALS, AMPARO ALSUA BUENVIAJE, FERNANDO
BUENVIAJE, FERNANDO ALSUA, represented by his guardian, CLOTILDE
S. ALSUA and PABLO ALSUA, respondents.
Rafael Triumfante for petitioners.
Sabido-Sabido & Associates and Madrid Law Office for private
respondents.

GUERRERO, J.:1wph1.t
This is an appeal by certiorari from the decision of the Court of
Appeals in CA-G.R. Nos. 54492-R and 54493-R which reversed the
decision of the Court of First Instance of Albay allowing the probate of
the win of Don Jesus Alsua in Special Proceedings No. 699 and
dismissing the complaint in Civil Case 3068 after declaring the two
deeds of sale executed by Don Jesus Alsua legal and valid. The
respondent court
1
denied the probate of the will, declared null and
void the two sales subject of the complaint and ordered the
defendants, petitioners herein, to pay damages to the plaintiffs, now
the private respondents, the sum of Five Thousand Pesos (P5,000.00),
to render an accounting of the properties in their possession and to
reimburse the latter the net gain in the proportion that appertains to
them in the properties from the date of the firing of the complaint up
to complete restoration plus Fifty Thousand Pesos (P50,000.00) as
attorney's fees and costs.
The antecedent events leading to the filing of these two consolidated
actions are the following.
On November 25, 1949, Don Jesus Alsua and his wife, Do;a Florentina
Rella, both of Ligao, Albay, together with all their living children,
Francisca Alsua-Betts, Pablo Alsua, Fernando Alsua thru this judicial
guardian Clotilde Samson, and Amparo Alsua de Buenviaje, entered
into a duly notarized agreement, Escritura de Particion
Extrajudicial (Exhibit 8), over the then present and existing properties of
the spouses Don Jesus and Do;a Florentina enumerated in a
prepared inventory, Exhibit 8-A, the essential features of which are
stated in private respondents' Brief, pp. 26-29, to wit: t.hqw
(1) Basis of the partition: Inventory (Annex A) of all
the properties of the Alsua spouses, which
inventory consists of 97 pages, all of them signed
by the spouses and all the above named heirs in
the left margin of every page (parafo primers).
(2) An acknowledgment of the spouses that all the
properties described in the inventory (Annex A)
are conjugal properties with the exception of five
parcels of land Identified with the figures of 1 to 5
and 30 shares of San Miguel Brewery stock which
are paraphernal properties of the late Do;a Tinay
(segundo parafo).
(3) An acknowledgment that during their
marriage, they had nine children but five of them
died minors, unmarried (parafo tercero y cuatro).
(4) An acknowledgment that on the basis of
Article 1056 of the Civil Code (old) to avoid
Possible misunderstanding among their children
concerning the inheritance they are entitled to in
the event of death of one of them they have
decided to effectuate an extrajudicial partition of
all the properties described in Annex "A" thereto
under the following terms and conditions: (Parafo
quinto):
To Francisca Alsua, married to Joseph O. Betts were allotted or
assigned all the real properties with the improvements thereon
specifically described from pages 1-12 of said inventory or, 34 parcels
of land with a total land area of 5,720,364 sq. meters, with a book or
appraised value of P69,740.00.
To Pablo Alsua, married to Teresa Locsin were allotted or assigned all
the real properties with the improvements thereon specifically
described from pages 12-20 of said inventory or, 26 parcels of land
with a total land area of 5,679,262 sq. meters, with a book or
appraised value of P55,940.00.
To Fernando Alsua, married to Clotilde Samson were allotted or
assigned all the real properties with the improvements thereon
specifically described from pages 20-33 of said inventory or, 47 parcels
of land with a total land area of 6,639,810 sq. meters, with a book or
appraised value of P89,300.00.
To Amparo Alsua, married to Fernando Buenviaje were allotted or
assigned all the real properties with the improvements thereon
specifically described from pages 33-47 of said inventory or, 47 parcels
of land with a total land area of 5,630,715 sq. meters, with a book or
appraised value of P58,830.00. t.hqw
(a) Each and every one of the heirs named above
acknowledge and admit that the totality of the
properties allotted and adjudicated to the heirs as
described in the preceding paragraph, constitute
one half of the properties described in Annex "A",
including any amount of cash deposited.
(b) That all the heirs acknowledge and admit that
all the properties assigned to them as their
hereditary portion represent one-half not only of
the conjugal properties but includes the
paraphernal properties waiving now and
forever any complaint or claim they have or they
may have concerning the amount, value,
extension and location of the properties that are
allotted to each and everyone. They also waive
any claim they have or they may have over the
remaining portion of the properties, which spouses
reserved for themselves.
(c) That in case of death of one of the spouses,
each and everyone of the heirs acknowledge that
the properties which are left in the possession of
the surviving spouse, including any amount in
cash, are even less than the one- half that should
correspond in absolute ownership as his legitimate
participation in the conjugal properties. In
consequence they waive any claim that they
have or may have over said portion of said
properties or any amount in cash during the
lifetime of the surviving spouse, including any right
or claim they have or they may have over the
paraphernal properties of Do;a Tinay in the event
the surviving spouse is Don Jesus.
(d) The spouses on their part in case of death of
any one of them, the surviving spouse waives any
25

claim he or she may have over the properties
assigned or adjudicated to the heirs under and by
virtue of this deed. The properties which were
reserved for them (the spouses) should be
considered as his or her legitimate participation in
the conjugal properties and the fair compensation
of his or her usufruct on the properties that the
surviving spouse reserved for himself or herself
which shag be distributed in equal shares among
the heirs upon his or her death unless said
properties of some of them have been disposed of
during the lifetime of the surviving spouse.
(e) Any heir who may dare question the validity
and legitimacy of the provision contained herein
shall be under obligation to pay to the other heirs,
in the concept of damages and prejudice, the
sum of P5,000.00 plus attorney's fees.
(f) The provisions of this deed shall bind the
successors of the herein heirs.
(g) In the event of death of one of the spouses,
the properties assigned or adjudicated to each
and everyone of the heirs shall be considered as
his share or participation in the estate or as his
inheritance left by the deceased and each heir
shall become the absolute owner of the properties
adjudicated to him under this deed.
On January 5, 1955, Don Jesus and Do;a Florentina, also known as
Do;a Tinay separately executed their respective holographic wills
(Exhs. 6-B and 7-B), the provisions of which were in conformity and in
implementation of the extrajudicial partition of November 25, 1949.
Their holographic wills similarly provided for the institution of the other
to his or her share in the conjugal properties, the other half of the
conjugal assets having been partitioned to constitute their legitime
among their four living children in the Extrajudicial Partition of 1949. The
wigs also declared that in the event of future acquisitions of other
properties by either of them, one-half thereof would belong to the
other spouse, and the other half shall be divided equally among the
four children. The holographic will of Do;a Tinay written in Spanish
reads, as translated: t.hqw
TESTAMENT
I, FLORENTINA R. DE ALSUA, 67 years old, Filipina,
married to Don Jesus Alsua, resident of and with
postal address in the Municipality of Ligao,
Province of Albay, Philippines, being in the full
possession of my mental and physical faculties
freely and spontaneously execute this my last will
and testament in my handwriting and signed by
me and expressed in the Spanish language which
I speak, write and understand, this 5th day of
January, 1955 in the Municipality of Ligao,
Province of Albay, and in which I ordain and
provide:
First: That in or about the year 1906 I was married
to my husband Don Jesus Alsua and begot nine
(9) children with him, four (4) of whom are still living
and they are Francisco Alsua, Pablo Alsua,
Fernando Alsua and Amparo Alsua. The other five
(5) died during their minority, single and without
children.
Second: That after my marriage to my husband
Don Jesus Alsua and during our conjugal union,
and as a result of our efforts and industry, we were
able to acquire conjugal properties consisting of
abaca (abales) and cacao lands and urban
lands registered in the office of the Registry of
Property of the Province of Albay and in the City
of Manila.
Third: That I institute as my heirs with right to inherit
the following- my spouse Don Jesus Alsua, one-half
(1/2) of my properties, real and personal, and the
other half, to my children Francisco Alsua, married
to Joseph O. Betts, Pablo Alsua, Fernando Alsua,
married to Clotilde Samson, and Amparo Alsua,
married to Fernando Buenviaje, in equal parts. It is
to be understood, however, that the other half
that corresponds as legitime to my above named
children have already been given to them,
pursuant to a document dated November 25,
1949 and ratified on the same day, month and
year before Notary Public Segundo G. Flores (Reg.
No. 525; Pag. 15; Lib. 11; Series of 1949) enjoining
each and everyone of them to respect and
faithfully comply with each and every clause
contained in the said document.
Fourth: That should I acquire new properties after
the execution of this testament, the same shall be
partitioned among my spouse and above named
children or the children mentioned in above par. 3
in the same proportion that is, one-half (1 1/2) to
my spouse; and the other half to my children in
equal parts.
Fifth: That I name as my executor my husband Don
Jesus Alsua without having to post any bond.
IN VIRTUE WHEREOF, I hereby sign in my own
handwriting this testament on this 5th day of
January, 1955 in the Municipality of Ligao,
Province of Albay, Philippines. t.hqw
(
S
G
D
.
)

F
L
O
R
E
N
T
I
N
A

R
.

D
E

A
L
S
U
A
(Joint Record on appeal pp. 420-423, CA-G.R. No.
54492-R)
26

As previously stated, Don Jesus Alsua executed a separate but similar
holographic will on the same day, Jan. 5, 1955 in exactly the same
terms and conditions as the above will of his wife.
On May 21, 1956, the spouses Don Jesus and Do;a Tinay filed before
the Court of First Instance of Albay their respective petitions for the
probate of their respective holographic wins which were docketed as
Special Proceedings No. 484 (Jesus Alsua, Petitioner) and Special
Proceedings No. 485 (Do;a Florentina Ralla de Alsua, Petitioner).
On August 14, 1956, the spouses Don Jesus and Do;a Tinay executed
their mutual and reciprocal codicils amending and supplementing
their respective holographic wins. Again, the codicils similarly
acknowledged and provided that one-half of all the properties of the
spouses, conjugal and paraphernal, had been disposed of, conveyed
to and partitioned among their legitimate heirs in the "Escritura de
Particion" of November 25, 1949, but that they reserved for themselves
(the spouses Don Jesus and Do;a Tinay) the other half or those not
disposed of to the said legitimate heirs under the above agreement of
partition, and that they mutually and reciprocally bequeathed unto
each other their participation therein as well as in all properties which
might be acquired subsequently. Each spouse also declared that
should she or he be the surviving spouse, whatever belongs to him or
her or would pertain to him or her, would be divided equally among
the four children. It was also declared in both codicils that upon the
death of either of the spouses, the surviving spouse was designated
mutually and reciprocally as the executor or administrator of all the
properties reserved for themselves.
The codicil executed by Do;a Tinay, written in Spanish reads, as
translated: t.hqw
CODICIL
This codicil supplements and amends the
preceding testament. That my spouse and I have
agreed to divide the properties which we have
acquired into 2 parts. The 1/2 that would
correspond to me covers all the properties that I
have partitioned among my children in the
Document of Partition dated November 25, 1949
before Notary Public Segundo G. Flores, Jr. (Doc.
No. 525; Pag. No. 15; Lib. No. 11; Series of 1949)
(and) even as the properties which by reason of
this testament I leave to my husband as his share
and the other half that corresponds to my
husband constitutes an the properties that up to
now have not been disposed of, particularly the
urban lands situated in Legaspi, Albay, Ligao of
the Province of Albay and in the City of Manila,
with the exception of that portion that I bequeath
to my husband as his inheritance and his
legitimate.
That I institute as my heirs with the right to inherit
my husband Don Jesus Alsua and my children
Francisco Alsua, Pablo Alsua, Fernando Alsua and
Amparo Alsua. I leave to my aforecited children
all the properties described in the above
mentioned Document of Partition dated
November 25, 1949 which correspond to each
one of them and in the profits (fruits) expressed in
the same, and in the event that the properties
granted to one or any of my children should
exceed in quantity or value those corresponding
to another or others, I hereby declare that it is my
will that the same be divided among my children
as their inheritance from the free portion of my
property.
I leave to my spouse Don Jesus Alsua as his
legitime and as Ws inheritance the part of the free
portion of my property which have not been
allocated in favor of my children in the Document
of Partition aforecited and that which should
exceed 1/2 of the conjugal property of gains that
pertains to him as above stated, including all
those properties which we shall acquire after the
execution of this document.
In case it should be God's will that I survive my
spouse, I hereby declare that it is my will that any
and all kinds of property that pertain to me or
would pertain to me, which have not been
disposed of pursuant to the partition, should be
divided equally among my above-mentioned
heirs after my death. Ligao, Albay, Philippines,
August 14,1956. t.hqw
(
S
G
D
.
)

F
L
O
R
E
N
T
I
N
A

R
A
L
L
A

D
E

A
L
S
U
A
(joint Record on Appeal pp. 423-425, CA-G.R. No.
54492-R)
And as stated previously, on the same day, August 14, 1956, Don Jesus
executed also a separate but similar codicil in exactly the same terms
and conditions as the above codicil of his wife. Also on the same day
of August 14, 1956, the spouses Don Jesus and Do;a Tinay both filed
their respective supplemental petitions for the probate of their
respective codicils in the probate proceedings earlier filed. On
February 19, 1957, their respective holographic wins and the codicils
thereto were duly admitted to probate.
Upon the death of Do;a Tinay on October 2, 1959, Don Jesus was
named executor to serve without bond in an order issued by the
probate court on October 13, 1959. Letters testamentary having been
issued in favor of Don Jesus, he took his oath of office and performed
his duties as such until July 1, 1960.
Thereafter in the early part of November, 1959, Don Jesus cancelled
his holographic will in the presence of his bookkeeper and secretary,
27

Esteban P. Ramirez, whom he instructed to make a list of all his
remaining properties with their corresponding descriptions. His lawyer,
Atty. Gregorio imperial Sr. was then instructed to draft a new will which
was duly signed by Don Jesus and his attesting witnesses on
November 14, 1959 at Ms home in Ligao, Albay. This notarial will and
testament (Exh. A) of Don Jesus executed on November 14, 1959 had
three essential features: (a) it expressly cancelled, revoked and
annulled all the provisions of Don Jesus' holographic will of January 5,
1955 and his codicil of August 14, 1956; (b) it provided for the collation
of all his properties donated to his four living children by virtue of the
"Escritura de Particion Extra. judicial" of 1949, and that such properties
be taken into account in the partition of his estate among the
children; and (c) it instituted his children as legatees/devisees of
certain specific properties, and as to the rest of the properties and
whatever may be subsequently acquired in the future, before his
death, were to be given to Francisca and Pablo, naming Francesca
as executrix to serve without a bond.
After all debts, funeral charges and other expenses of the estate of
Do;a Tinay had been paid, all her heirs including Don Jesus,
submitted to the probate court for approval a deed of partition
executed on December 19, 1959 (Exh. 7-Q) and which essentially
confirmed the provisions of the partition of 1949, the holographic will
and codicil of Do;a Tinay. On July 6, 1960, the court approved the
partition of 1959 and on January 6, 1961 declared the termination of
the proceedings on the estate of Do;a Tinay.
On May 6,1964, Don Jesus Alsua died.
On May 20, 1964, petitioner herein Francisca Alsua Betts, as the
executrix named in the will of November 14, 1959, filed a petition for
the probate of said new will of Don Jesus Alsua before the Court of
First Instance of Albay and was docketed as Special Proceedings No.
699. Oppositions thereto were filed by Pablo, Amparo and Fernando,
thru his judicial guardian Clotilde Samson, on the following grounds:
(a) that Don Jesus was not of sound and disposing mind at the time of
the execution of the alleged will; (b) that the will was executed under
duress or influence of fear or threats; or it was procured by undue and
improper pressure and influence on the part of the main beneficiaries
and of person or persons in collusion with them, or the signature of the
testator was secured by or thru fraud; (c) that the will was not
executed according to the formal requirements of the law; and (d)
that the alleged will subject of probate contravened the Extrajudicial
Partition of 1949 agreed upon by him, his deceased spouse, Do;a
Tinay, and all his children, Francisco, Pablo, Amparo and Fernando
thru his judicial guardian Clotilde Samson, and also contravened Don
Jesus' own probated holographic will and codicil of 1955 and 1956,
respectively, essentially confirming and implementing the said
partition of 1949 which had already been partially executed by all the
signatories thereto in the partition of the estate of Do;a Tinay in
December, 1959.
On the basis of Francisca's designation as executrix in the new will
dated November 14, 1959, the Probate Court appointed her
Administratrix of the estate of her late father, Don Jesus Alsua. She
then filed with the Probate Court an inventory of the properties of the
estate which, according to the oppositors therein (the private
respondents now) did not include some properties appearing in the
agreement of November 25. 1949 or in the inventory attached thereto
as Annex "A" and in the "Escritura de Particion" of December 19, 1959
as belonging to or should pertain to Don Jesus. According to the
oppositors, these properties consist of thirty- three (33) premium
agricultural lots with a total land area of 1,187,970 square meters, or
approximately 119 hectares and with a total assessed value of
P48,410.00 or a probable total market value of P238,000.00 at only
P2,000.00 per hectare, and four (4) commercial urban lots Ideally
located in the business section of Legazpi City including the lot and
the building presently occupied by the well-known "Mayon Hotel" with
an assessed value of approximately P117,260.00 or a probable market
value at the time of P469,040.00. It appearing from the new will that
these properties were bequeathed to Pablo Alsua and Francisco
Alsua-Betts, specifically, 3 parcels of the 33 agricultural lands to Pablo
and the rest to Francisco, the oppositors also raised in issue the non-
inclusion of said properties in the inventory of the estate of their late
father. In answer, Francisco claimed ownership over the same,
alleging that she bought the properties from their father and
presenting the two Deeds of Sale now being assailed, one dated
August 26, 1961 purporting to show the sale of the 33 parcels of
agricultural land to Francisco by their father for the price of P70,000.00
and the other dated November 26, 1962 evidencing the sale of the
four urban lots for the sum of P80,000.00. Claiming fraud in the sales,
the oppositors filed Civil Case No. 3068, seeking the annulment of the
aforesaid two deeds of sale, with damages, which upon agreement
of the parties was then jointly heard and tried with Special
Proceedings No. 699 for probate of the Last Will and Testament of Don
Jesus executed on November 14, 1959.
After a joint hearing of the merits of these two cases, the Court of First
Instance of Albay promulgated a decision on January 15, 1973, the
dispositive portion of which states: t.hqw
WHEREFORE, in view of all the foregoing, judgment
is hereby rendered, to wit:
1. In Special Proceedings 699, the Court hereby
APPROVES and ALLOWS the Will executed by Don
Jesus Alsua at Ligao, Albay, on November 14,
1959, which had been marked as Exhibit A,
consisting of nine (9) pages, and orders that the
same be made the basis for division and
distribution of the estate of said testator;
2. In Civil Case 3068, the Court hereby dismisses
the complaint and holds that the sale on August
26, 1961 (Exh. U) and the sale on November 26,
1962 (Exh. W), are lawful and valid sales and
accordingly conveyed title to the VENDEE thereof.
The Plaintiffs in Civil Case 3068. are ordered jointly
and severally to pay to the defendant, Francisco
Alsua Betts Fifty Thousand Pesos (P50,000.00) as
damages and Fifty Thousand (P50,000.00) Pesos for
attorney's fees or a total of One Hundred
Thousand Pesos (P100,000.00) and to pay the
costs.
On appeal by herein respondents to the Court of Appeals, the court
reversed the appealed decision in a judgment rendered on April 4,
1977, the dispositive portion of which states, as translated, thus
t.hqw
IN VIEW OF THE FOREGOING, this Tribunal finds itself
constrained to set aside as it hereby sets aside the
decision appealed from in the following manner:
(1) in Special Proceedings 699, the probate of the
will, Exh. A, is hereby denied; (2) in Civil Case No.
3068, Exhs. U and W and the titles issued on the
basis thereof are hereby declared null and void,
ordering the appellees Francisco Alsua and
Joseph Betts to pay to the plaintiffs in the concept
of fixed damages, the sum of P5,000.00 and to
render an accounting of properties in their
possession and to reimburse the plaintiffs the net
gain, in the proportion that appertains to them in
the properties subject of litigation in Civil Case No.
3068 from the date of the filing of this complaint,
up to the complete restoration of the properties
pertaining to (plaintiffs) pursuant to Article 2208 of
the New Civil Code, paragraph 11, ordering them
in addition to pay to the plaintiffs and oppositors
the sum of P50,000.00 as attorney's fees, and the
costs.
Hence, the petition at bar assailing the respondent court's decision on
four assigned errors, to wit: t.hqw
28

I. The respondent Court of Appeals erred in not
affirming the findings of the probate court (Special
Proceedings No. 699) that private respondents,
oppositors to the probate of the will, are in
estoppel to question the competence of testator
Don Jesus Alsua.
II. The respondent Court of Appeals grossly erred in
holding that testator Don Jesus Alsua cannot
revoke his previous will.
III. The respondent court's finding is grounded
entirely on speculation, surmises or conjectures
resulting in a gross misapprehension of facts.
IV. The respondent court grossly erred in annulling
the sales of August 26, 1961 (Exh. U), and of
November 26, 1962 (Exh. W).
On the first issue of estoppel raised in the assignment of errors, We hold
that the same is of no moment. The controversy as to the competency
or incompetency of Don Jesus Alsua to execute his will cannot be
determined by acts of the herein private respondents as oppositors to
the will in formally agreeing in writing jointly with the petitioner
Francisca Alsua de Betts that their father, Don Jesus Alsua, be
appointed by the court executor of the will of their mother in Special
Proceedings No. 485, Testate Estate of Do;a Florentina Ralla de Alsua
and in subsequently petitioning the court not to require Don Jesus
Alsua to file any accounting as executor in the proceedings, which
petitioners claim and was upheld by the trial court as constituting
estoppel on the part of the private respondents from questioning the
competence of Don Jesus Alsua.
The principle of estoppel is not applicable in probate proceedings, a
ruling laid down in the case of Testate Estate of the Late Procopia
Apostol Benedicta Obispo, et al vs. Remedios Obispo, 50 O.G. 614,
penned by Justice J.B.L. Reyes, an eminent and recognized authority
on Civil Law when he was still in the Court of Appeals, and We
quote: t.hqw
Finally, probate proceedings involve public
interest, and the application therein of the rile of
estoppel, when it win block the ascertainment of
the truth as to the circumstances surrounding the
execution of a testament, would seem inimical to
public policy. Over and above the interest of
private parties is that of the state to see that
testamentary dispositions be carried out if, and
only if, executed conformably to law.
The Supreme Court of New York aptly said in Re
Canfield's Will, 300 N.Y.S., 502: t.hqw
'The primary purpose of the
proceeding is not to establish
the existence of the right of
any living person, but to
determine whether or not the
decedent has performed the
acts specified by the pertinent
statutes, which are the
essential prerequisites to
personal direction of the
mode of devolution of his
property on death. There is no
legal but merely a moral duty
resting upon a proponent to
attempt to validate the wishes
of the departed, and he may
and frequently does receive
no personal benefit from the
performance of the act.
One of the most fundamental
conceptions of probate law, is
that it is the duty of the court
to effectuate, in so far as may
be compatible with the public
interest, the devolutionary
wishes of a deceased person
(Matter of Watson's Wilt 262
N.Y., 284, 294, 186, N.E., 787;
Matter of Marriman's Estate,
124 Misc. 320, 325, 208, N.Y.S.,
672; Foley, S., affirmed 217
app. Div., 733, 216 N.Y.S., 126,
Henderson, S., Matter of
Draske's Estate, 160 Misc. 587,
593, 290, N.Y.S., 581). To that
end, the court is, in effect, an
additional party to every
litigation affecting the disposal
of the assets of the deceased.
Matter of Van Valkenburgh's
Estate, 164 Misc. 295, 298,
N.Y.S., 219.'
The next issue that commands Our attention is whether the
respondent court erred in not allowing the probate of the last will and
testament of Don Jesus Alsua. Petitioners claim that the disallowance
was based on speculations, surmises or conjectures, disregarding the
facts as found by the trial court. The Civil Court is very clear and
explicit in providing the cases where a will may be disallowed under
Article 839 which provides as follows: t.hqw
Art. 839. The will shall be disallowed in any of the
following cases:
(1) If the formalities required by law have not been
complied with;
(2) If the testator was insane, or otherwise mentally
incapable of making a wilt at the time of its
execution;
(3) If it was executed through force or under
duress, or the influence of fear, or threats;
(4) If it was procured by undue and improper
pressure and influence, on the part of the
beneficiary or of some other person;
(5) If the signature of the testator was procured by
fraud,
(6) If the testator acted by mistake or did not
intend that the instrument he signed should be his
will at the time of affixing his signature thereto.
The issue under consideration appears to Us to have been answered
by the respondent court itself when it accepted the findings of the trial
court on the due execution of the questioned will and testament of
Don Jesus, declaring: t.hqw
... and going back to the previous question,
whether the questioned will and testament of
November 14, 1959, Exh. A, was executed in
accordance with Arts. 805-809 of the New Civil
Code, this Tribunal from the very beginning
29

accepts the findings of the inferior court
concerning the question, t.hqw
On October 2, 1959, Do;a
Florentina died at Ligao,
Albay. About 2 weeks after
said death of his wife, Don
Jesus Alsua decided to make
a new will, thereby revoking
and cancelling his previous
holographic will which he
made on January 5, 1955 and
also its codicil dated August
14, 1956. In the presence of his
bookkeeper and secretary,
Esteban P. Ramirez, he crossed
out in ink each and every
page of said page he wrote
on each page the word
"cancelado", and affixed his
signature thereon (Exh V-5, V-
6, consecutively up to and
including Exh. V-14). He then
instructed Ramirez to make a
list of all s properties with their
corresponding descriptions.
Meanwhile, Don Jesus Alsua
sent for his lawyer, Don
Gregorio Imperial, Sr. and the
latter came accompanied by
his son, Atty. Jorge S, Imperial,
who, incidentally, is now a
judge of the Court of First
Instance of Naga City,
Camarines Sur. Don Jesus
informed his lawyers that he
wanted to make a new will,
and accordingly gave more
detailed instructions as to how
he wanted to divide his
properties among his four
children. He handed to them
a list and on the left he
indicated the name of the
child to whom the listed
properties shall pertain. Atty.
Jorge Imperial took notes of
the instructions of Don Jesus
Alsua. To Don Jesus, Spanish is
his major language, as in fact
his conversations with Don
Gregorio are always in
Spanish. A few days before
November 14, 1959, Atty.
Jorge S. Imperial showed to
Don Jesus the semi-final draft
of the will and after reading it
Don Jesus said that it was as
directed by him, and after
making a few minor
corrections, he instructed Atty.
Jorge S. Imperial to put the win
in final form. He further told
Atty, Jorge Imperial that the
signing of the will should be at
his home in Ligao, in the
morning of November 14,
1959, and that the witnesses
should be Mr. Ramon Balana,
the then Register of Deeds of
Albay; Mr. Jose Madarieta
who is a friend of the family;
and Mr. Jose Gaya who is a
sort of employee of Don Jesus.
Thus in the morning of
November 14, 1959, Don
Gregorio and Atty. Jorge S.
Imperial, riding in a sedan,
stopped at the Legaspi
residence of Mr. Ramon
Balana, and informed the
latter that Don Jesus was
requesting him to be one of
the attesting witnesses to his
will. Mr. Balana, having a very
high regard for Don Jesus,
considered it an honor to be
so asked, and gladly went with
the Imperials. They arrived at
the residence of Don Jesus at
Ligao; Albay, almost ten
o'clock of that morning, and
they were ushered in by Mr.
Jose Gaya, and the latter
requested them to be seated
at the usual receiving room on
the ground floor while he
announced their arrival to Don
Jesus who was on the second
floor. Soon Don Jesus came
down, carrying with him the
will to be signed placed inside
a cartolina folder. He greeted
Don Gregorio, Mr. Balan, and
Atty. Imperial and immediately
joined them in conversation.
Mr. Gaya called for Mr. Jose
Madarieta, whose residence is
just across the road from the
house of Don Jesus. Mr.
Madarieta was already
informed by Don Jesus himself
about the fact of signing the
will that morning, and so, on
being advised by Mr. Gaya
that the Imperials had already
arrived, Madarieta proceeded
to the residence of Don Jesus,
without much delay. With the
coming of Madarieta and the
coming back of Gaya, there
were now six people gathered
in the living room, namely: Don
Jesus Alsua, Don Gregorio
Imperial Atty. Jorge S. Imperial
Mr. Ramon Balana, Mr. Jose
Madarieta, and Mr. Jose
Gaya. All the witnesses who
testified for the petitioner
declared that Don Jesus was
in bright and lively
conversation which ran from
problems of farming and the
merits of French-made wines.
At 1 1:00 o'clock, Don
Gregorio made a remark that
it is about time to do what
they were there for, and this
was followed by a more or less
statement from Jesus, who
said: t.hqw
'Preisamen
te es por lo
que he
30

Hamado a
ustedes
que esten
presentes
para ser
testigos de
rni ultimo
voluntad y
testament
o que ha
sido
preparado
por el
abogado
Sr.
Gregorio
Imperial
segun mis
instruccion
es cuyo
document
o tengo
aqui
conmigo y
encuentro
que,
despues
de lo he
leido, esta
satisfactori
amente
hecho
segun mis
instruccion
es, Como
saben
ustedes
tengo
cuatro (4)
hijos todos
egos.' (pp.
43-44,
t.s.n.,
hearing of
December
7, 1967,
Sarte.
On request of Don Jesus, all of
them moved to the big round
table on another part of the
same sala for convenience in
signing because there were
chairs all around this table. The
will which consisted of nine
pages, with a duplicate, and
triplicate was laid on the
round table and the signing
began, with Atty. Jorge S.
Imperial assisting each person
signing by indicating the
proper place where the
signature shall be written. Don
Jesus, as testator, signed first.
After signing the original and
the two other sets, the three
sets were then passed to Mr.
Ramon Balana who signed as
attesting witness. After Mr.
Balana, Mr. Jose Madarieta
signed next as another
attesting witness, and when
Mr. Madarieta finished signing
all the three sets, the same
were passed to Mr. Jose Gaya
who also signed as the third
attesting witness. On each of
the three sets, Don Jesus
signed ten times, one on
the margin of each of the nine
pages, and at the end of the
instrument proper. Each of the
three attesting witnesses
(Balana, Madarieta and
Gaya) signed eleven times on
each set, one on the
margin of each of the nine
pages, one at the end of the
instrument proper and one
below the attestation clause.
The original will was marked as
Exh. A (or set A); the duplicate
as Exh. K (or set K) and the
triplicate of Don Jesus, Mr.
Balana, Mr. Madarieta, and
Mr. Gaya were Identified by
Mr. Balana, Mr. Madarieta and
Atty. (now Judge) imperial. It
was also clearly established
that when Don Jesus signed
the will Mr. Balana, Mr.
Madarieta, and Mr. Gaya
were present and witnessed
said signing, and that when
each of these three witnesses
was signing, Don Jesus and
the two other attesting
witnesses were present and
Witnessing said Signing. The
signing by the testator and the
attesting witnesses having
been completed, Atty. Jorge
S. Imperial as Notary Public
with commission for the entire
province of Albay, notarized
the wilt and sealed it with his
notarial seat which seal he
brought along that morning.
After all the three sets were
notarized, they were all given
back to Don Jesus who
placed them inside the same
folder. At that moment, it was
already about 12:30 P.M. and
Don Jesus invited all of them
to lunch, which invitation was
gladly accepted by all of
then-L (pp. 474-480, Joint
Record on Appeal in CA-G.R.
No. 54492-R)
which findings are supported by the evidence, - it
is quite difficult to conclude that the same had not
complied with the requirements of Arts. 804- 806 of
the New Civil Code. ... (CA Decision, pp. 13-16, as
translated).
This cited portion of the appealed decision accepts as a fact that the
findings of the lower court declaring the contested will as having been
executed with all the formal requirements of a valid will, are supported
by the evidence. This finding is conclusive upon this Tribunal and We
cannot alter, review or revise the same. Hence, there is no further
need for Us to dwell on the matter as both the lower court and the
respondent appellate court have declared that these are the facts
and such facts are fully borne and supported by the records. We find
no error in the conclusion arrived at that the contested will was duly
executed in accordance with law. We rule that the questioned last will
31

and testament of Don Jesus Alsua fully complied with the formal
requirements of the law.
Respondent court, however, denied probate of the will after ,'noting
certain details which were a little bit difficult to reconcile with the
ordinary course of things and of life." First was the fact that the spouses
Don Jesus and Do;a Tinay together with their four children Francisco,
Pablo, Amparo and Fernando had executed the Extrajudicial Partition
of November 25, 1949 (Exh. A) which divided the conjugal properties
of the spouses between the spouses themselves and the children
under the terms and conditions and dispositions herein before stated
and to implement its provisions, Don Jesus and Do;a Tinay
subsequently executed separately their respective holographic wigs
both dated January 5, 1955 and codicils dated August 14, 1956 with
the same terms and conditions as reproduced herein earlier. Both
holographic wills and codicils having been probated thereafter and
upon the death of Do;a Tinay, Don Jesus was appointed executor of
the will and in due time the partition of the properties or estate of
Do;a Tinay was approved by the probate court on July 6, 1960.
The respondent court ruled that the Extrajudicial Partition of November
25, 1949 was an enforceable contract which was binding on Don
Jesus Alsua as the surviving spouse, barring him from violating said
partition agreement, barring him from revoking his holographic will of
January 5, 1955 and his codicil of August 14, 1956, and further barring
him from executing his new will and testament of November 14, 1959,
now the subject of the probate proceedings elevated to this Court.
We do not agree with this ruling of the Court of Appeals. We hold that
the Extrajudicial Partition of November 25, 1949 is null and void under
Article 1056 in relation to Article 1271 of the old Civil Code which are
applicable hereto. These Articles provide as follows: t.hqw
Art. 1056. If the testator should make a partition of
his property by an act inter vivos, or by will, such
partition shall stand in so far as it does not
prejudice the legitime of the forced heirs. ...
Art. 1271. All things, even future ones, which are
not excluded from the commerce of man, may
be the subject-matter of contracts.
Nevertheless, no contract may be entered into
with respect to future inheritances, except those
the object of which is to make a division inter vivos
of an estate, in accordance with Article 1056.
All services not contrary to law or to good morals
may also be the subject- matter of contract.
Article 1056 specifically uses the word "testator" from which the clear
intent of the law may be deduced that the privilege of partitioning
one's estate by acts inter vivos is restricted only to one who has made
a prior will or testament. In other words, Article 1056 being an
exception cannot be given a wider scope as to include in the
exception any person whether he has made a will or not.
Respondent court citing the same Article concluded that under both
the old and new Civil Code, a person who executes a will is permitted
at the same time or a little thereafter or even before as long as he
mentions this fact in the will, to partition his properties pursuant to the
provisions of Article 1056 of the old Civil Code. The court further added
that jurisprudence is to the effect that the partition presupposes the
execution of the will that it ratifies or effectuates, citing the case
of Legasto vs. Verzosa, 54 Phil. 776. Finally, respondent court held the
opinion that the extrajudicial partition of November 14, 1949 was
ratified in the holographic will executed by Don Jesus on Jan. 5, 1955
and in the codicil of August 14, 1956.
Again, We do not agree with this ruling of the respondent court.
In Legasto vs. Verzosa, supra, the Supreme Court categorically
declared the necessity of a prior will before the testator can partition
his properties among his heirs, and We quote the pertinent portions of
the decision: t.hqw
The first question to decide in the instant appeal is
whether the partition made by Sabina Almadin of
her property among her nieces, the defendants
and appellants herein, was valid and enforceable.
Article 1056 of the Civil Code provides:
Art. 1056. If the testator should make a partition of
his property by an act inter vivos, or by will, such
partition shall stand in so far as it does not
prejudice the legitime of the forced heirs.
The Supreme Court of Spain, in a decision
rendered on June 13, 1903, laid down the
following doctrine:
Considering that the language of article 1056
cannot be interpreted to mean that a person
may, by acts inter vivos, partition his property
referred to in the section wherein said article is
found, without the authority of a testament
containing an expression of his last will, or the
authority of law, for, otherwise, a partition thus
made would be tantamount to making a will in a
manner not provided for, authorized, nor included
in the chapter referring to testaments, and
especially, to the forms thereof, which is entirely
different from the legal consequences of a free
disposition made by parents during their lifetime,
whereby they give to their children the whole or a
part of their property;
Considering that, inasmuch as the second
paragraph of article 1271 makes reference to the
aforesaid article, in providing that no contracts
may be entered into with respect to future
inheritances except those the object of which is to
make a division inter vivos of the estate in
accordance with article 1056, it is evident that
said difference likewise leads to the conclusion
that a partition thus made should be on the basis
of a testamentary or legal succession and should
be made in conformity with the fundamental rules
thereof and the order of the heirs entitled to the
estate, because neither of the two provisions
could be given a wider meaning or scope than
that they simply provide for the division of the
estate during the lifetime of the owner, which,
otherwise, would have to be done upon the
death of the testator in order to carry into effect
the partition of the estate among the persons
interested.
Manresa comments on the same article as follows:
A distinction must be made between the
disposition of property and its division; and the
provision of article 1056 authorizing the testator to
dispose of his property by acts inter vivos or by last
will, must be understood in accordance with this
distinction. The Idea is to divide the estate among
the heirs designated by the testator. This
designation constitutes the disposition of the
properties to take effect after his death, and said
act must necessarily appear in the testament
32

because it is the expression of the testator's last will
and must be surrounded by appropriate
formalities. Then comes the second part, to wit,
the division in conformity with that disposition, and
the testator may make this division in the same will
or in another will, or by an act inter vivos. With
these words, the law, in article 1056 as well as in
article 1057, which we shall hereafter examine,
makes allusion to the forms or manner of making
the partition and not to the effects thereof, which
means that, for purposes of partition the formal
solemnities which must accompany every
testament or last will are not necessary. Neither is it
necessary to observe the special for. realities
required in case of donations, because it is not a
matter of disposing gratuitously of properties, but
of dividing those which already have been legally
disposed of.
It is thus seen that both the Spanish Supreme Court
and the learned and authoritative commentator,
Manresa, are of opinion that a testator may, by an
act inter vivos, partition his property, but he must
first make a will with all the formalities provided for
by law. And it could not be otherwise, for without
a will there can be no testator; when the law,
therefore, speaks of the partition inter vivos made
by a testator of his property, it necessarily refers to
that property which he has devised to his heirs. A
person who disposes of his property gratis inter
vivos is not called a testator, but a donor. In
employing the word "testator," the law evidently
desired to distinguish between one who freely
donates his property in life and one who disposes
of it by will to take effect after his death.
We are not in conformity with the holding of the respondent court that
the extrajudicial partition of November 25, 1949 which under the old
Civil Code was expressly prohibited as against public policy had been
validly ratified by the holographic will of Don Jesus executed on
January 5, 1955 and his codicil of August 14, 1956. Such a holding of
the appellate court that a person who executes a will is permitted to
partition his properties pursuant to the provisions of Article 1056 of the
old Civil Code even before executing his will as long as he mentions
this fact in the will, is not warranted under the ruling of Legasto vs.
Verzosa, supra and the commentary of Manresa as quoted above.
We rule, therefore, that the respondent court erred in denying probate
to the will of Don Jesus dated November 14, 1959; it erred in holding
that Don Jesus being a party to the extrajudicial partition of 1949 was
contractually bound by the provisions thereof and hence could not
revoke his participation therein by the simple expedience of making a
new will with contrary provisions or dispositions. It is an error because
the so-called extrajudicial partition of 1949 is void and inoperative as a
partition; neither is it a valid or enforceable contract because it
involved future inheritance; it may only be given effect as a donation
inter vivos of specific properties to the heirs made by the parents.
Considering that the document, the extrajudicial partition of
November 25, 1949, contained specific designation of properties
allotted to each child, We rule that there was substantial compliance
with the rules on donations inter vivos under the old Civil Code (Article
633). On the other hand, there could have been no valid donation to
the children of the other half reserved as the free portion of Don Jesus
and Do;a Tinay which, as stated in the deed, was to be divided
equally among the children for the simple reason that the property or
properties were not specifically described in the public instrument, an
essential requirement under Article 633 which provides as
follows: t.hqw
Art. 633. In order that a donation or real property
be valid it must be made by public instrument in
which the property donated must be specifically
described and in the amount of the
encumbrances to be assumed by the donee
expressed.
The acceptance must be made in the deed of gift
or in a separate public writing; but it shall produce
no effect if not made during the lifetime of the
donor.
If the acceptance is made by separate public
instrument, authentic notice thereof shall be given
the donor, and this proceeding shall be noted in
both instruments.
This other half, therefore, remained as the disposable free portion of
the spouses which may be disposed of in such manner that either of
the spouses would like in regards to his or her share in such portion,
unencumbered by the provision enjoining the last surviving spouse to
give equally to the children what belongs or-would pertain to him or
her. The end result, therefore, is that Don Jesus and Do;a Tinay, in the
Deed of 1949, made to their children valid donations of only one-half
of their combined properties which must be charged against their
legitime and cannot anymore be revoked unless inofficious; the other
half remained entirely at the free disposal of the spouses with regards
to their respective shares.
Upon the death of Do;a Tinay on October 2, 1959, her share in the
free portion was distributed in accordance with her holographic will
dated January 25, 1955 and her codicil dated August 14, 1956. It must
be stressed here that the distribution of her properties was subject to
her holographic win and codicil, independently of the holographic will
and codicil of Don Jesus executed by him on the same date. This is
fundamental because otherwise, to consider both wills and codicils
jointly would be to circumvent the prohibition of the Civil Code on
joint wills (Art. 818) and secondly because upon the death of Do;a
Tinay, only her estate was being settled, and not that of Don Jesus.
We have carefully examined the provisions of the holographic will and
codicil of Do;a Tinay and We find no indication whatsoever that
Do;a Tinay expressly or impliedly instituted both the husband and her
children as heirs to her free portion of her share in the conjugal assets.
In her holographic will, mention of her children as heirs was made in
the fourth clause but it only provided that, to wit: t.hqw
Cuatro. Que si yo adquieriese nuevase
propiedades despues de otorgado este mi
testamento seran las mismas repartados entre mi
esposo o hijos arriba mencionada en el parrafo
tercero su la misma proporcion o sea: la mitad
(1/2) para is esposa; y la otra mitad (1/2) para mis
hijos en partes iguales.
For purposes of clarity and convenience, this fourth clause provided
that "Should I acquire new properties after the execution of this
testament, the same shall be partitioned among my spouse and
above named children or the children mentioned in above par. 3 in
the same proportion, that is, one- half (1/2) to my spouse; and the
other half to my children in equal parts." From the above-quoted
provision, the children would only inherit together with Don Jesus
whatever new properties Do;a Tinay would acquire after the
execution of her will.
Likewise, the codicil of Do;a Tinay instituted her husband as sole heir
to her share in the free portion of the conjugal assets, and We quote
that part of the codicil: t.hqw
Dejo a mi esposo Jesus Alsua como su legitima y
como herencia que se sacara de ni cuenta de
libre disposicion todos aquellos bienes de los que
no he dispuesto aun en favor de mis hijos en la
escritura de reparticion precitada y que
33

excedieran de la mitad de gananciales que le
corresponds tal como arriba declare, incluyendo
todos aquenos bienes que se adquiriesen por
nosotros despues de otorgado por mi este
testamento.
Para el caso de que Dios dispusiera que yo
sobreviviera a mi esposo declaro que es mi
voluntad que todas las propiedades de todo
genero que me pertenecen y me pudieran
pertenecer, no dispuestas aun en la reparticion, se
dividan por igual entre mis herederos
mencionados despues de mi muerte.
Again for purposes of clarity and convenience, the above portion
states: t.hqw
I leave to my spouse Don Jesus Alsua as his
legitime and as his inheritance the part of the free
portion of my property which have not been
allocated in favor of my children in the Document
of Partition aforecited and that which should
exceed 1/2 of the conjugal property of gains that
pertains to him as above stated, including all
those properties which we shall acquire after the
execution of this document.
In case it should be God's will that I survive my
spouse, I hereby declare that it is my will that any
and all kinds of property that pertains to me or
would pertain to me, which have not been
disposed of pursuant to the partition, should be
divided equally among my above-mentioned
heirs after my death.
The children, therefore, would only receive equal shares in the
remaining estate of Do;a Tinay in the event that she should be the
surviving spouse. To stress the point, Do;a Tinay did not oblige her
husband to give equally to the children, upon his death, all such
properties she was bequeathing him.
Considering now the efficacy of Don Jesus' last will and testament
executed on November 14, 1959 in view of Our holding that Do;a
Tinay's wig and codicil did not stipulate that Don Jesus will bestow the
properties equally to the children, it follows that all the properties of
Do;a Tinay bequeathed to Don Jesus under her holographic win and
codicil became part of Don Jesus' estate unburdened by any
condition obligation or proviso.
Respondents insist that Don Jesus was bound by the extrajudicial
partition of November 25, 1949 and had in fact conformed to said
Partition by making a holographic will and codicil with exactly the
same provisions as those of Do;a Tinay, which respondent court
sustained. We rule, however, that Don Jesus was not forever bound
thereby for his previous holographic will and codicil as such, would
remain revokable at his discretion. Art. 828 of the new Civil Code is
clear: "A win may be revoked by the testator at any time before his
death. Any waiver or restriction of this right is void." There can be no
restriction that may be made on his absolute freedom to revoke his
holographic will and codicil previously made. This would still hold true
even if such previous will had as in the case at bar already been
probated (Palacios v. Palacios, 106 Phil. 739). For in the first place,
probate only authenticates the will and does not pass upon the
efficacy of the dispositions therein. And secondly, the rights to the
succession are transmitted only from the moment of the death of the
decedent (Article 777, New Civil Code). In fine, Don Jesus retained the
liberty of disposing of his property before his death to whomsoever he
chose, provided the legitime of the forced heirs are not prejudiced,
which is not herein claimed for it is undisputed that only the free
portion of the whole Alsua estate is being contested.
After clearly establishing that only Don Jesus was named as sole heir
instituted to the remaining estate of Do;a Tinay in her holographic will
and codicil resulting in all such properties becoming the properties of
Don Jesus alone, and after clearly pointing out that Don Jesus can, in
law, revoke his previous holographic will and codicil, by making
another win expressly cancelling and revoking the former, the next
issue for the Court's resolution is the validity of the provisions of the
contested will. Though the law and jurisprudence are clear that only
questions about the extrinsic validity of the will may be entertained by
the probate court, the Court had, on more than one occasion,
passed upon the intrinsic validity of a will even before it had been
authenticated. Thus We declared in Nuguid v. Nuguid, 17 SCRA
499: t.hqw
The parties shunted aside the question of whether
or not the will should be allowed to probate. For
them, the meat of the case is the intrinsic validity
of the wilt Normally this comes only after the court
has declared that the will has been duly
authenticated. ...
... If the case were to be remanded for probate of
the wilt nothing will be gained. On the contrary,
this litigation win be protracted and for ought that
appears in the record, in the event of probate or if
the court rejects the will probability exists that the
case win come up once again before us on the
issue of the intrinsic validity or nullity of the wilt
Result: waste of time, effort, expense, plus added
anxiety. These are the practical considerations
that induce us to a behalf that we might as well
meet head-on the time of the validity of the
provisions of the will in question. ...
The last Will and Testament of Don Jesus executed on November 14,
1959 contained an express revocation of his holographic wig of
January 5, 1955 and the codicil of August 14, 1956; a statement
requiring that all of his properties donated to his children in the Deed
of 1949 be collated and taken into account in the partition of his
estate; the institution of all his children as devisees and legatees to
certain specific properties; a statement bequeathing the rest of his
properties and all that may be acquired in the future, before his
death, to Pablo and Francesca; and a statement naming Francesca
as executrix without bond.
Considering these testamentary provisions, a close scrutiny of the
properties distributed to the children under the Deed of 1949 and
those distributed under the contested will of Don Jesus does not show
that the former had in fact been included in the latter. This being so, it
must be presumed that the intention of Don Jesus in his last win was
not to revoke the donations already made in the Deed of 1949 but
only to redistribute his remaining estate, or that portion of the conjugal
assets totally left to his free disposal and that which he received as his
inheritance from Do;a Tinay. The legitimes of the forced heirs were
left unimpaired, as in fact, not one of said forced heirs claimed or
intimated otherwise. The properties that were disposed of in the
contested will belonged wholly to Don Jesus Alsua's free portion and
may be diamond of by him to whomsoever he may choose.
If he now favored Francesca more, as claimed by private
respondents, or Pablo as in fact he was, We cannot and may not sit in
judgment upon the motives and sentiments of Don Jesus in doing so.
We have clearly laid down this rule inBustamante v. Arevalo, 73 Phil.
635, to wit: t.hqw
... nevertheless it would be venturesome for the
court to advance its own Idea of a just distribution
of the property in the face of a different mode of
disposition so clearly expressed by the testatrix in
the latter will. ...
34

It would be a dangerous precedent to strain the
interpretation of a will in order to effect what the
court believes to be an equitable division of the
estate of a deceased person. The only functions of
the courts in these cases is to carry out the
intention of the deceased as manifested in the
wig. Once that intention has been determined
through a careful reading of the will or wills, and
provided the law on legitimes has not been
violated, it is beyond the place of judicial
cognizance to inquire into the fairness or
unfairness of any devise or bequeast. The court
should not sit in judgment upon the motives and
sentiments of the testatrix, first, because as already
stated, nothing in the law restrained her from
disposing of her property in any manner she
desired, and secondly, because there are no
adequate means of ascertaining the inward
process of her conscience. She was the sole judge
of her own attitude toward those who expected
her bounty. ...
Respondent court, in trying to rationalize the will of Don Jesus which
allegedly benefited and favored the petitioner to the prejudice of the
other heirs who would have been entitled to an equal share under the
extrajudicial partition of 1949, faced two alternatives-one, to consider
Don Jesus as a man of culture and honor and would not snow himself
to violate the previous agreement, and the other as one whose
mental faculties or his possession of the same had been diminished
considering that when the will was executed, he was already 84 years
of age and in view of his weakness and advanced age, the actual
administration of his properties had been left to his assistant Madarieta
who, for his part received instructions from Francisco and her husband,
Joseph Betts. According to the court, the better explanation is the
latter, which is not legally tenable. Under Article 799 of the New Civil
Code which provides as follows: t.hqw
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,
The test of testamentary capacity is at the time of the making of the
win. Mere weakness of mind or partial imbecility from disease of body
or from age-does not render a person incapable of making a
will. t.hqw
Between the highest degree of soundness of mind
and memory which unquestionably carries with it
full testamentary capacity, and that degrees of
mental aberration generally known as insanity or
Idiocy, there are numberless degrees of mental
capacity or incapacity and while on one hand it
has been held that mere weakness of mind, or
partial imbecility from disease of body, or from
age, will not render a person incapable of making
a will; a weak or feebleminded person may make
a valid will, provided he has understanding and
memory sufficient to enable him to know what he
is about to do and how or to whom he is disposing
of his property. To constitute a sound and
disposing mind, it is not necessary that the mind
be unbroken or unimpaired or unshattered by
disease or otherwise. It has been held that
testamentary incapacity does not necessarily
require that a person shall actually be insane or of
unsound mind. (Bugnao vs. Ubag, 14 Phil. 163).
The Civil Code itself provides under Article 798 that in order to make a
will, it is essential that the testator be of sound mind at the time of its
execution, and under Article 800, the law presumes that every person
is of sound mind in the absence of proof to the contrary. In the case at
bar, the acceptance by the respondent court of the findings of fact
of the trial court on the due execution of the last win and testament of
Don Jesus has foreclosed any and all claim to the contrary that the will
was not executed in accordance with the requirements of the law.
But more than that, gleaned from the quoted portions of the
appealed decision, the described behavior of Don Jesus is not that of
a mentally incapacitated person nor one suffering from "senile
dementia" as claimed by private respondents. From these accepted
facts, We find that: (a) it was Don Jesus himself who gave detailed
instructions to his lawyer as to how he wanted to divide his properties
among his children by means of a list of his properties should pertain;
(b) the semi-final draft of the contested will prepared by his lawyer w-
as even corrected by Don Jesus; (c) on the day of the signing of the
will at his house in Ligao, "Don Jesus was in bright and lively spirits ...,
leading in the conversation which ran from problems of farming and
the merits of French-made wines"; (d) the signing of the will by Don
Jesus and his attesting witnesses was made after a statement from
Don Jesus of the purpose of their meeting or gathering, to
wit: t.hqw
Precisamente es por lo que he Ilamado a ustedes
que eaten presentes para ser testigos de mi ultima
voluntad y testamento que ha sido preparado por
el abogado Sr. Gregorio Imperial segun mis
instrucciones cuyo documents tengo aqui con
migo y encuentro que, despues de lo he leido,
esta satisfactoriamente hecho segun mis
ingtrucciones, Como saben ustedes tengo cuatro
(4) hijos todos ellos.
Clearly then, Don Jesus knew exactly what his actions were and the
fun implications thereof.
In rejecting probate of the wilt respondent court further pointed out
other details which, in the words of the decision "are a little bit difficult
to reconcile with the ordinary course of things and of fife" such as the
fact that Don Jesus had sought the probate of his will of January 5,
1955 and his codicil of August 14, 1956 during his lifetime but insofar as
the will of November 14, 1959 is concerned, he had no intention of
seeking the probate thereof during his lifetime, the alleged redundant
and unnecessary proceedings undertaken by Don Jesus in the
properties under question to petitioner Franciso Alsua-Betts when the
same properties had already been bequeathed to her in the will of
November 14, 1959 and that "nothing, absolutely nothing, could be
made the basis for finding that Don Jesus Alsua had regarded his
other children with less favor, and that he was more sympathetic to
Francisca so as to or forget the former depriving them of benefits
already given to them and rewarding the latter with disproportionate
advantages or benefits, to such an extreme as to violate his previous
disposition consecrated in the previous extrajudicial partition, Exh. 8."
We agree with the petitioner that these details which respondent
court found difficult to reconcile with the ordinary course of things and
of life are mere conjectures, surmises or speculations which, however,
do not warrant or justify disallowance of the probate of the win of Don
Jesus. The fact that Don Jesus did not cause his will to be probated
during his lifetime while his previous holographic win and codicil were
duly probated when he was still alive is a mere speculation which
depends entirely on the discretion of Don Jesus as the testator. The
law does not require that a will be probated during the lifetime of the
testator and for not doing so there cannot arise any favorable or
unfavorable consequence therefrom. The parties cannot correctly
guess or surmise the motives of the testator and neither can the courts.
Such surmise, speculation or conjecture is no valid and legal ground to
reject allowance or disallowance of the wig. The same thing can be
35

said as to whatever reason Don Jesus had for selling the properties to
his daughter Francisca when he had already assigned the same
properties to her in his will. While We can speculate that Don Jesus
desired to have possession of the properties transferred to Francisca
after the sale instead of waiting for his death may be a reasonable
explanation or speculation for the act of the testator and yet there is
no certainty that such was actually the reason. This is as good a
conjecture as the respondents may offer or as difficult to accept
which respondent court believes. A conjecture is always a conjecture;
it can never be admitted as evidence.
Now, the annulment case. The only issue raised anent the civil case for
annulment of the two Deeds of Sale executed by and between Don
Jesus and petitioner Francisco is their validity or nullity. Private
respondents mainly contend that the sales were fictitious or simulated,
there having been no actual consideration paid. They further insist
that the issue raised is a question of fact and, therefore, not
reviewable in a certiorari proceeding before the Supreme Court. On
the other hand, petitioners herein maintain that it was error for the
respondent court to set aside on appeal the factual findings of the
trial court that the two sales were valid.
It is true that the jurisprudence of this 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; and this same
principle applies even if the Court of Appeals was in disagreement
with the lower court as to the weight of evidence with a consequent
reversal of its findings of fact. But what should not be ignored by
lawyers and litigants alike is the more basic principle that the "findings
of fact" described as "final" or "conclusive" are those borne out by the
record or those which are based upon substantial evidence. The
general rule laid down by the Supreme Court does not declare the
absolute correctness of all the findings of fact made by the Court of
Appeals. These are exceptions to the general rule, where We have
reviewed and revised the findings of fact of the Court of Appeals.
Among the exceptions to the rule that findings of fact by the Court of
Appeals cannot be reviewed on appeals by certiorari are:
1. When the conclusion is a finding grounded entirely on speculation,
surmises or conjectures (Joaquin vs. Navarro, 93 Phil. 257);
2. When the inference made is manifestly mistaken, absurd or
impossible (Luna vs. Linatok, 74 Phil. 15);
3. Where there is a grave abuse of discretion (Buyco vs. People, 51
O.G. 2927);
4. When the judgment is based on a misapprehension of facts (Cruz
vs. Sosing, L-4875, Nov. 27, 1953);
5. When the findings of fact are conflicting (Casica vs. Villaseca, L-
9590, April 30, 1957); and
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 (Evangelists vs. Alto Surety & Ins. Co., L-11139,
April 23, 1958; Ramos vs. Pepsi Cola, L-22533, Feb. 9, 1967, 19 SCRA
289).
In the case at bar, We find and so declare that the respondent court's
conclusion as to the nullity of the contested sales was not supported
by the evidence on record and adduced during the trial.
Evident from the records are the following documentary evidence: (1)
Exhibit U, a deed of sale over agricultural lands executed on August
26, 1961 by Don Jesus in favor of Francisca for the consideration of
Seventy Thousand Pesos (P70,000.00), which document bears the
signature of Don Jesus, not assailed as a forgery, and the signature of
Pablo Alsua as an instrumental witness, again not assailed as a forgery
nor alleged as done thru fraud, force or threat. (2) Exhibit "W", a deed
of sale over urban lots executed on November 16, 1962 for the
consideration of Eighty Thousand Pesos (P80,000.00), which document
also bears the signature of Don Jesus, also admittedly not a forgery.
(3) Exhibit "F", a document dated August 26, 1961 and signed by Don
Jesus and Pablo Alsua as witness, acknowledging receipt of a Bank of
Philippine Island Check No. 0252 in the amount of Seventy Thousand
Pesos (P70,000.00) for the sale of 33 parcels of agricultural land to
Francisco under the same date; again, Pablo did not deny the
genuineness of his signature. (4) Exhibit "X", a Bank of the Philippine
Islands Check No. D-6979 dated November 26, 1962, in the amount of
P32,644.71, drawn and signed by Francesca, payable to Don Jesus. (5)
Exhibit "X-1", a second Bank of Philippine Islands Check (No. D-6980)
also dated November 26, 1962 in the amount of ?47,355.29, drawn by
Francisco and payable to Don Jesus. (6) Exhibit "X-3 " and "X-5 ",
endorsements on the back of the last two checks by Don Jesus, again,
his signatures thereon were not assailed. (7) Exhibit "A" (in the
annulment case), a Bureau of Internal Revenue Receipt (No. 2347260)
dated November 29, 1962 with a notation acknowledging the receipt
of BPI Check No. D-6980 in the amount of P47,355.29 from Don Jesus
Alsua in payment of Balance of Transfer of Tax Ass. No. EA-35415-19
plus interest. We are convinced and satisfied from this array of
documentary evidence that in fact, Don Jesus sold the subject
properties to his daughter, Francisca for the total consideration of
P150,000.00.
The claim of the private respondents that the sales were fictitious and
void for being without cause or consideration is as weak and flimsy as
the ground upon which the respondent court upheld said claim on
the basis that there was no need for funds in Don Jesus' old age aside
from the speculation that there was nothing in the evidence that
showed what motivated Don Jesus to change his mind as to favor
Francesca and discriminate against the other children. The two
contracts of same executed by Don Jesus in favor of Francesca are
evidenced by Exhibits "U" and "W", the genuineness of which were not
at all assailed at any time during this long drawn-out litigation of 15
years standing. That the consideration stated in the contracts were
paid is also sufficiently proved as the receipts thereof by Don Jesus
were even signed by one of the private respondents, Pablo Alsua, as
a witness. The latter cannot now deny the payment of the
consideration And even of he now allege that in fact no transfer of
money was involved, We find his allegation belied by Exhibits "X-3 "
and "X-5 ", which show that the checks of Francisco made payable to
Don Jesus. were in fact given to Don Jesus as he endorsed them on
the back thereof, and most specifically Exhibit "A" in the annulment
case, which proved that Don Jesus actually used Exhibit "XI " to
complete payment on the estate and inheritance tax on the estate of
his wife to the Bureau of Internal Revenue.
Private respondents further insist that the sales were fraudulent
because of the inadequacy of the given price. Inadequacy of
consideration does not vitiate a contract unless it is proven which in
the case at bar was not, that there was fraud, mistake or undue
influence. (Article 1355, New Civil Code). We do not find the stipulated
price as so inadequate to shock the court's conscience, considering
that the price paid was much higher than the assessed value of the
subject properties and considering that the sales were effected by a
father to her daughter in which case filial love must be taken into
account.
WHEREFORE, IN VIEW OF THE FOREGOING, the decision appealed from
is hereby set aside. The decision of the Court of First Instance Of Albay
in Special Proceedings No. 699 and Civil Case No. 3068 is hereby
reinstated, with costs against respondents.
SO ORDERED.
G.R. No. L-6322 February 21, 1912
DOLORES AVELINO, as administratrix of the estate of Pascual de la
Cruz, plaintiff-appellee,
vs.
VICTORIANA DE LA CRUZ, defendant-appellant.
36

Buencamino, Diokno, Mapa, Buencamino, Jr. Platon & Lontoc for
appellant.
Alfonso Mendoza for appellee.
JOHNSON, J.:
The present is an appeal from an order of the Honorable George N.
Hurd, judge of the Court of First Instance of the city of Manila, in which
he had legalized the will of the said Pascual de la Cruz, deceased.
The contention of the opponent is that at the time of the making of
the will the said Pascual de la Cruz was blind and had been for a
number of years, and was incompetent to make the will in question.
Against this contention of the opponent, all of the witnesses who
signed the will were called as witnesses, and each declared that the
deceased was of sound mind at the time said will was made and fully
understood its contents and signed the same in their presence and
that they each signed the will in the presence of each other, as well
as in the presence of the deceased.
The appellant attempted to show that the deceased was
incompetent to make his will because he was blind at the time the
same was executed and had been for several years theretofore.
There is absolutely no proof to show that the deceased was
incapacitated at the time he executed his will. No presumption of
incapacity can arise from the mere fact that he was blind. The only
requirement of the law as to the capacity to make a will is that the
person shall be of age and of sound mind and memory. (Sec. 614,
Code of Procedure in Civil Actions.) Section 620 of the same code
prohibits blind persons from acting as witnesses in the execution of
wills, but no limitation is placed upon the testamentary capacity,
except age and soundness of mind.
In our opinion the record contains nothing which justifies the
modification of the order made legalizing the will in the present case.
The order of the lower court admitting to probate and legalizing the
will in question is therefore hereby affirmed with costs.
Arellano, C.J., Torres, Carson, Moreland and Trent, JJ., concur.

G.R. No. L-17627 June 8, 1922
In re will of Marcelo Jocson, deceased,
RAFAEL JOCSON, ET AL., petitioners-appellees,
vs.
ROSAURO JOCSON, ET AL., opponents-appellants.
Araneta & Zaragoza for appellants.
M. Fernandez Yanson, Pio Sian Melliza and Montinola, Montinola &
Hontiveros for appellees.
VILLAMOR, J.:
On June 10, 19120, Rafael Jocson, Cirilo Manlaque, and Filomena
Goza presented a petition in the court below for the probate of the
document Exhibit A, as the last will and testament of the deceased
Marcelo Jocson. This petitioner was opposed by Rosauro, Asuncion,
and Dominga Jocson, alleging that: (a) The supposed will was not the
last will of the deceased, and the signatures appearing thereon, and
which are said to be of the testator, are not authentic; (b) the testator,
that is, the deceased, was not of sound mind and was seriously ill at
the time of its execution; and (c) the supposed will was not executed
in accordance with the law.
After trial the lower court rendered decision finding, among other
things, as follows:
For all of the foregoing reasons the court finds that some
hours before, during and one hour after, the execution of his
will, Marcelo Jocson was of sound mind; that he dictated his
will in Visaya, his own dialect; that he signed his will in the
presence of three witnesses at the bottom, and on each of
the left margins of the three sheets in which it was written;
that said three witnesses signed the will in the presence of
the testator and of each other, all of which requirements
make the documents Exhibit A a valid will, in accordance
with the provision of section 618 of the Code of Civil
Procedure, as amended by Act No. 2645.
By virtue thereof, it is adjudged and decreed that the
document Exhibit A Is the last will and testament of the
deceased Marcelo Jocson, and it is ordered that the same
be admitted to probate, and Rafael Jocson is hereby
appointed administrator of the estate left by said deceased,
upon the filing of a bond in the sum of fifteen thousand
pesos (P15,000).
The appellants allege that the trial court erred in holding that Exhibit A
is the last will and testament of the deceased Marcelo Jocson, and in
ordering and decreeing the probate thereof as his last will.
All the arguments advanced by the appellants tend to show that the
testator Marcelo Jocson, at the time of executing the will, did not
have the mental capacity necessary therefor; that said will was not
signed b the witnesses in the presence of the testator; that the
witnesses did not sign the will in the presence of each other; and that
the attestation of the supposed will does not state that the witnesses
signed in the presence of the testator.
All of these points raised by the appellants were discussed at length by
the trial court upon the evidence introduced by the parties. After an
examination of said evidence, we are of the opinion, and so hold,
that the findings made by the trial court upon the aforesaid point are
supported by the preponderance of evidence.
We have noticed certain conflicts between the declarations of the
witnesses on some details prior to, and simultaneous with, the
execution of the will, but to our mind such discrepancies are not
sufficient to raise any doubt as to the veracity of their testimony. In the
case of Bugnao vs. Ubag (14 Phil., 163), it was held:
While a number of contradictions in the testimony of alleged
subscribing witnesses to a will as to the circumstances under
which it was executed, or a single contradiction as to a
particular incident to which the attention of such witnesses
must have been directed, may in certain cases justify the
conclusion that the alleged witnesses were not present,
together, at the time when the alleged will was executed, a
mere lapse of memory on the part of one of these witnesses
as to the precise details of an unimportant incident, to
which his attention was not directed, does not necessarily
put in doubt the truth and veracity of the testimony in
support of the execution of the will.
As to the mental capacity of the testator at the time of executing his
will, the finding of the trial court that the testator was of sound mind at
the time of dictating and signing his will is supported by the evidence.
This court, in the case of Bagtas vs. Paguio (22 Phil., 227), held:
To constitute a sound mind and disposing memory it is not
necessary that the mind shall be wholly unbroken,
unimpaired, and unshattered by disease or otherwise, or
that the testator be in full possession of all his reasoning
faculties. Failure of memory is not sufficient unless it be total
or extend to his immediate family or property.
And in Bugnao vs. Ubag, supra, it was declared:
37

Proof of the existence of all the elements in the following
definition of testamentary capacity, which has frequently
been adopted in the United States, held sufficient to
establish the existence of such capacity in the absence of
proof of very exceptional circumstances: "Testamentary
capacity is the capacity to comprehend the nature of the
transaction in which the testator is engaged at the time, to
recollect the property to be disposed of and the persons
who would naturally be supposed to have claims upon the
testator, and to comprehend the manner in which the
instrument will distribute his property among the objects of
this bounty."
Whether or not the witnesses signed the will in the presence of the
testator and whether or not they signed in the presence of each
other, are questions of fact that must be decided in accordance with
the evidence. The trial judge, who tried this case and saw and heard
the witnesses while testifying, held that these solemnities were
complied with at the execution of the will in question and we find no
reason for altering his conclusions.
The objection to the attestation of Exhibit A is groundless if the terms
thereof are considered, which, translated from the Visayan dialect, in
which the will was written, into English, says:
We, witnesses, do hereby state that the document written
on each side of the three sheets of paper was executed,
acknowledged, signed, and published by the testator
abovenamed, Marcelo Jocson, who declared that it was his
last will and testament in our presence and, at his request
and all of us being present, we signed our named on the
three sheets of paper as witnesses to this will in the presence
of each other. (Translation of Exhibit A, page 18,
documentary evidence.)
The judgment appealed from is affirmed with the costs against the
appellants. So ordered.
Araullo, C.J., Malcolm, Avancea, Ostrand and Romualdez, JJ.,
concur.
G.R. No. L-41947 December 29, 1936
In re will of Silvestra Baron. VIVENCIO CUYUGAN, petitioner-appellant,
vs.
FAUSTINA BARON, ET AL., oppositors-appellees.
Jose P. Laurel, Pedro Sabido, and DeWitt, Perkins and Ponce Enrile for
appellant.
Vicente J. Francisco, Eusebio Orense, and Arturo Joven for appellees.
R E S O L U T I O N
ABAD SANTOS, J.:
The decision in this case, affirming that the lower court, was rendered
in favor of the appellees on January 16, 1936, 1 by a majority of six
with four dissenting votes. Under the rules of this court the appellant
had fifteen days to apply for a reconsideration of this decision, the last
day of said period being the 31st of said month. On the 24th of said
month the appellant asked for an extension of said period by seven
days, alleging that he would file an alternative petition for
reconsideration of the decision rendered therein or for a new trial and
that, due to the length of the printed pleadings to be filed by him to
this effect, it would be impossible for him to do so within the period
fixed by law. This petition was denied. On the 31st of said month, at 4
o'clock p. m. the appellant filed his alternative petition for
reconsideration or for a new trial supported by a printed brief
consisting of 109 pages and an appendix of 28 pages. On said date,
at 7 o'clock in the evening, the court denied said petition for
reconsideration with the same division of votes, minus that of one of
the dissenting justices who was absent. One of the attorneys for the
appellant received notice of said resolution on February 3rd. It does
not appear that the other attorneys for the appellant received said
notice earlier and it is reasonable to suppose that they received it at
the same time, particularly taking into consideration the fact that it
could not have been prepared or sent until February 1st on which
there was office for only a half day, being Saturday, and could not
have been received in the ordinary course until Monday, February 3d,
as the following day, the second of said month, was Sunday.
It is inferred from section 39 of the Rules of this court that after a
motion for reconsideration is denied, one may still apply for leave to
file a second motion for said purpose.
On February 4th, the clerk of court remanded the case to the lower
court, for execution. On said date, after the case had been
remanded to the lower court, the appellant filed his petition for leave
to file a second motion for reconsideration or new trial alleging that
the court did not have sufficient time to consider the first motion. On
February 6th the appellant asked for the recall of the case from the
lower court and the retention thereof in this court until his petition for
leave to file a second motion for reconsideration or new trial is
decided. On March 21st the court granted to the appellant the
permission applied for and requested the trial court to return the
record to the office of the clerk of this court.
After the parties had argued the second motion for reconsideration or
new trial, the appellees, on October 6, 1936, presented an affidavit of
Zacarias Nuguid, the appellant's principal witness, retracting his first
testimony, in order that it may be taken into consideration by the
court in deciding the second motion for reconsideration or new trial.
On October 31st the court unanimously ordered the new trial of this
case pursuant to sections 496 and 505 of the Code of Civil Procedure.
The appellees excepted to and filed a motion for reconsideration of
this last resolution, which is the incident now under consideration by
this court.
The appellees allege that this court had no jurisdiction render its
resolution of October 31st on the ground that it had already lost it on
February 3d. This court finds this contention to be unfounded. When
the appellant applied for leave to file a second motion for
reconsideration or new trial on February 4th, this court still had
jurisdiction over the case and retained it by virtue of said application.
If, according to the rule, a party may yet apply for leave to file a
second motion for reconsideration after a motion for reconsideration is
denied, the court must retain its jurisdiction to grant or deny the
motion. In the case at bar this court granted the motion. The rule fixes
no time for the filing of said application for leave to file a second
motion for reconsideration. Of course a certain period of time must be
allowed for the filing thereof because, otherwise, said provision of the
rule would be without any purpose. Without referring to the other
probable cases, it is evident that in the case at bar, as the application
was filed on the day following the receipt of notice of the denial of
the motion for reconsideration, which is the first day available for said
purpose (sec. 4, Code of Civil Procedure), it was filed in due time. This
being so, the material fact that the case was remanded to the trial
court a few hours after the filing of the application, without said court's
having taken action by virtue of said remand, and, undoubtedly,
before receipt of the record, cannot affect the jurisdiction still had by
this court.
On the other hand, it cannot be stated that the petition for leave to
file a second motion for reconsideration must be presented within the
same period of fifteen days for the filing of the first motion for
reconsideration, because the rule does not so state and because, if it
were so, it would be impossible to file the petition in question where, as
in the present case, the first petition, for justifiable reasons, could not
be presented until the last day of said period.
38

Furthermore, the question whether or not, after a case is remanded to
the trial court for execution of the judgment rendered on appeal, this
court may still resume jurisdiction over said case and recall the record,
has precedents in the affirmative in our jurisprudence
(People vs. Santiago, G. R. No. 38677, May 14, 1934 and Nov. 1, 1934
[60 Phil., 1006, 1056]; and Ingsonvs. Olaybar, 52 Phil., 396). There are
likewise precedents to that effect in American jurisprudence,
particularly of the Supreme Court of New York, according to the
following note 90 (a) in 4 Corpus Juris, 1245, which reads:
(a) New York rule. "It is often erroneously assumed that after the
filing of the remittitur in the court below, and order entered thereon,
this court is deprived of all jurisdiction in the cause. In Sweet vs. Mowry
(138 N. Y., 650; 34 N. E. 388), a motion for reargument was granted,
and a return of the remittitur requested. These acts of the court were
held to be in resumption of jurisdiction. In Lawrence vs. Church (128 N.
Y., 324; 28 N. E., 499), a motion to amend the remittitur was granted,
and the order entered requested the return of the remittitur by the
court below, and when so returned it was ordered to be amended. In
Moffett vs. Elmendorf (153 N. Y., 674; 48 N. E., 1105), a motion to
amend remittitur was granted, and order entered that the remittitur
be recalled for that purpose. A like motion was granted in
Buchanan vs. Little (155 N. Y., 635; 49 N. E., 1094). This later practice of
the court is not necessarily inconsistent with the earlier cases, which
hold that this court has no jurisdiction to grant a reargument or an
amendment of the remittitur after the remittitur is filed and acted
upon in the court below. (People vs. Neliston, 79 N. Y., 638;
Jones vs. Anderson, 71 N. Y., 599; Cushman vs.Hadfield, 15 Abb. Pr. NS
[N. Y.], 109; Wilmerdings vs. Fowler, 15 Abb. Pr. NS. [N. Y.] 86.) It is
competent for this court to determine whether it will resume jurisdiction
for any purpose, and, having decided to do so, it then requests the
court below to return the remittitur so that the reargument can be had
or the remittitur amended, as the case may be. It is technically true
that this court must be repossessed of the remittitur before an order
made in the cause is effectual, but there is no objection to the return
of the remittitur following the determination of this court to resume
jurisdiction." (Franklin Bank Note Co. vs. Mackey, supra.)
It must furthermore be taken into consideration that when this court, in
its order of the 31st of October last, ordered the new trial of the case, it
did so for the benefit of not only the appellant but also of the
appellees. As already stated, the appellees, on October 6th,
presented an affidavit of Zacarias Nuguid, principal witness for the
appellant, retracting his former testimony, to be taken into
consideration by this court in deciding the second motion for
reconsideration or new trial filed by the appellant. The court, however,
can not take into consideration said retraction if it is not presented in
the case by means of a new trial or, unless it be for the purpose of
ordering a new trial. For this reason the court, in decreeing a new trial
in its order of October 31st, in the broadest sense provided therein,
had in mind to give opportunity not only to the appellant to present
his new evidence but also to the appellees to present the retraction of
the witness Nuguid.
This court is aware of the fact that the new trial will cause delay in the
termination of the case but if this is necessary in order to administer
justice or to correct a judicial error, the delay would be justified.
However, if the parties, after three days from the receipt of notice of
this resolution, signify their desire to waive the presentation of said new
evidence and to submit the case upon its merits, this court would be
willing to do so.
In the meantime, the reconsideration sought by the appellees is
denied and the order is on October 31st of this year stands. So
ordered.
Avancea, C. J., Villa-Real, Imperial, Diaz, and Concepcion, JJ.,
concur.

G.R. No. L-6625 October 24, 1911
JUANA CAGUIAO, administratix of the estate of the deceased Emigdio
Zarate, petitioner-appellee,
vs.
MARIA CALDERON, opponent-appellant.
M. Legaspi Florendo, for appellant.
Pedro Ma. Sison, for appellee.

JOHNSON, J.:
It appears from the record that the plaintiff, upon the 17th of February,
1910, presented in the Court of First Instance of the Province of
Pangasinan, praying for the probation of the last will and testament of
Emigdio Zarate, deceased, in conformity with section 630 of the Code
of Procedure in Civil Actions. The petition was accompanied by the
original will, marked "Exhibit A," of said Emigdio Zarate.
Due notice of said petition was given in accordance with law, and the
hearing for the probation of said will was fixed for the 9th of March,
1910. Later the said hearing was transferred to the 16th of July, 1910.
On the latter date the said Maria Calderon appeared, by her
attorney, and opposed the probation of said will upon the following
grounds:
1. That the said Emigdio Zarate was mentally incapacitated
at the time he authorized and signed his will.
2. That he executed the said will under illegal and undue
influence or persuasion on the part of some persons who
acted in behalf of the beneficiaries or heirs.
3. That the signature of the testator was obtained by deceit
or fraud, for the reason that it was not his intention that all
that was recorded in the said instrument should be his will at
the time he signed it; for the testator had informed the
opponent, Maria Calderon, before and after the said will
had been signed, that he had not disposed of the one-half
of the house and lot now mentioned in the third clause,
latter (a), of the said will, because the said testator
recognized that the house and lot referred to belonged to
the said Maria Calderon.
Therefore, the opponent prays the court to annul the will
alleged to have been executed by Emigdio Zarate, and to
order that its probate be dissallowed, with the costs against
the petitioner.
After hearing the evidence adduced pro and con, the lower court
reached the following conclusion:
It having been proved completely on the part of the
petitioner that the will in question was executed and signed
in entire conformity with all the requirements and solemnities
set out in the Code of Civil Procedure, the court overrules
the opposition, sustains the petition, admits to probate
Exhibit A, holding that the same is legal in all its parts as the
last will and testament of the deceased Emigdio Zarate.
From that conclusion of the lower court, the oppositor appealed to
this court and made the following assignments of error:
I. The court erred in holding that the deceased, Emigdio
Zarate, was in the full possession of his mental faculties at the
time of the execution of his will.1awphil.net
39

II. The court erred in holding that the said Emigdio Zarate
executed his last will and testament without illegal
persuasion or influence on the part of persons working in
behalf of the heirs.
III. The court erred in holding that Emigdio Zarate executed
and signed his last will without fraud and deceit being
brought to bear upon him.
IV. The court erred in holding that the testator signed his will
in the presence of four witnesses, Sabino Sandoval, Esteban
Sandoval, George Zarate and Eugenio Zarate, who, on their
part, signed, each of them, in the presence of the others.
V. The court erred in holding that it was proved that the will
in question was executed and signed i conformity with the
requirements and solemnities set out in the Code of Civil
Procedure.
VI. The court erred in holding that the document Exhibit A, of
the petitioner, is legal in all parts, as the last will and
testament of the deceased Emigdio Zarate.
VII. The court erred in rendering judgment in this matter
without waiting for the written argument of both sides.
VIII. The court erred in not holding that all the proof taken
together sustained the claim of the oppositor, Maria
Calderon.
IX. The court erred in imposing the costs upon the oppositor.
With reference to the first assignment of error above noted, it appears
from the record that upon the 13th day of January, 1910, Emigdio
Zarate executed his last will and testament, the original of which
appears in the record and is marked "Exhibit A." Emigdio Zarate died
on the 19th day of January, 1910.
From an examination of said Exhibit A it appears to have been signed
by Emigdio Zarate and by four witnesses, Sabino M. Sandoval, Esteban
Sandoval, George Zarate and Eugenio Zarate. From the record it
appears that the testator dictated his will in the Pangasinan dialect
and it was then translated into Spanish. After the will had been written
in Spanish it was read to the deceased and translated to him in the
Pangasinan dialect, and, according to the allegations of the
appellee, the said Exhibit A received his approval as his last will and
testament.
The appellant alleges that at the time of the execution of the said
alleged will of Emigdio Zarate, he was not in the full possession of his
mental faculties. This question was presented to the lower court. After
hearing the evidence, the lower court found that Emigdio Zarate, at
the time of the execution of the said will, was in the possession of his
faculties. Two of the witnesses who signed the will, as well as others
who were present in the house at the time the said will was executed,
testified that in their opinion Emigdio Zarate was of sound mind and
memory at the time he signed the said will. Practically the only
testimony to the contrary adduced during the trial of the cause in the
lower court was the testimony given by two doctors, one of whom
had not seen the deceased for many months before his death, whose
testimony was based wholly upon hypothetical questions.
The appellant attempted to show that Emigdio Zarate for some
months prior to his death had been troubled with insomia, as well as
some other physical infirmities. The hypothetical questions were based
upon the question whether or not a person who had been suffering
with insomia for some months would have sufficient mental capacity
to execute a will. The two doctors who appeared on behalf of the
opponents testified that insomia tended to destroy the mental
capacity, but that there were times, even during the period while they
were suffering from insomia, when they would be perfectly rational.
Even admitting that there was some foundation for the supposition
that Emigdio Zarate had suffered from the alleged infirmities, we do
not believe that the testimony was sufficiently direct and positive,
based upon the hypothetical; questions, to overcome the positive
and direct testimony of the witnesses who were present at the time of
the execution of the will in question. The evidence adduced during
the trial of the case, shows a large preponderance of proof in favor of
the fact that Emigdio Zarate was in the full possession of his mental
faculties at the time he executed his last will and testament.
The second and third assignments of error may be considered
together. Upon the question presented by the said assignments of
error, the lower court found from the evidence that Emigdio Zarate
executed his last will and testament without threats, force or pressure
or illegal influence. The basis of the claim that undue influence had
been exercised over Emigdio Zarate is that a day or two before the
said will was made, it is claimed by the opponent, Maria Calderon,
that the deceased promised to will to her a certain house (one-half of
which seems to belong to her) upon the payment by her to the
deceased and the said property was not willed to the defendant
herein. The agreement between Maria Calderon and the deceased, if
there was an agreement, seems to have been made between them
privately, at least at the time the will was made the deceased made
no reference to it whatever. Those present at the time the will was
made and the witnesses who signed the same heard no statement or
conversation relating to the said agreement, between the opponent
herein and the deceased. There is no proof in the record which shows
that any person even spoke to the deceased with reference to the
willing of the said house to the opponent. There is nothing in the
record to indicate in the slightest degree that any person interested in
the will, or who was present at the time of the making of the same,
induced or attempted to induce the deceased not to will the said
house to the opponent herein. The theory of the opponent that the
deceased did not will to her the house in question is a mere
presumption and there is not a scintilla of evidence in the record to
support it.
The fourth, fifth, and sixth assignments of error may be considered
together.
During the trial of the cause two of the persons who signed the will as
witnesses appeared and testified. They testified that the deceased
signed the will in their presence and in the presence of the other
witnesses to the will; that they each signed the will in the presence of
the testator and in the presence of the other witnesses; that the other
two witnesses who were not called also signed the will in the presence
of the testator and in he presence of each of the other witnesses.
There is no sufficient proof in the record to overcome the declarations
of these witnesses. We find no reason, therefore, for modifying the
conclusion of the lower court upon these assignments of error.
With reference to the seventh assignment of error, to wit: that the
court erred in rendering judgment without waiting for the written
arguments of both parties, it may be said that it is customary for courts
to wait until the parties have presented their arguments before
deciding a cause, nevertheless, it is not reversible error for a court to
decide a cause without waiting for written arguments to be presented
by the respective attorneys. It appears from the record (p. 102) that
the trial of the cause was closed on the 5th of august, 1910, and that
the decision in the cause was not rendered until the 5th of October,
1910, or until after two months had expired. There is nothing in the
record which shows that either of the attorneys during these two
months asked for additional time in which to present their written
arguments. It also appears of record (p. 102) that the respective
attorneys asked for fifteen days' time within which to present their
written arguments. There is nothing in the record which shows whether
they presented their written arguments presented before the decision
was rendered in the cause, it was clearly not the fault of the judge.
40

The arguments heretofore given seem to be sufficient also to answer
the eight and ninth assignments of error.
Upon a full consideration of the evidence and the assignments of
error, we are of the opinion that the will of Emigdio Zarate, deceased,
was executed and signed in entire conformity with all the
requirements and solemnities required by law. Therefore the judgment
of the lower court is hereby affirmed with costs.
Torres, Carson and Moreland, JJ., concur.
G.R. No. 6845 September 1, 1914
YAP TUA, petitioner-appellee,
vs.
YAP CA KUAN and YAP CA KUAN, objectors-appellants.
Chicote and Miranda for appellants.
O'Brien and DeWitt for appellee.
JOHNSON, J.:
It appears from the record that on the 23d day of August, 1909, one
Perfecto Gabriel, representing the petitioner, Yap Tua, presented a
petition in the Court of First Instance of the city of Manila, asking that
the will of Tomasa Elizaga Yap Caong be admitted to probate, as the
last will and testament of Tomasa Elizaga Yap Caong, deceased. It
appears that the said Tomasa Elizaga Yap Caong died in the city of
Manila on the 11th day of August, 1909. Accompanying said petition
and attached thereto was the alleged will of the deceased. It
appears that the will was signed by the deceased, as well as Anselmo
Zacarias, Severo Tabora, and Timoteo Paez.
Said petition, after due notice was given, was brought on for hearing
on the 18th day of September, 1909. Timoteo Paez declared that he
was 48 years of age; that he had known the said Tomasa Elizaga Yap
Caong; that she had died on the 11th day of August, 1909; that
before her death she had executed a last will and testament; that he
was present at the time of the execution of the same; that he had
signed the will as a witness; that Anselmo Zacarias and Severo Tabora
had also signed said will as witnesses and that they had signed the will
in the presence of the deceased.
Pablo Agustin also declared as a witness and said that he was 40
years of age; that he knew Tomasa Elizaga Yap Caong during her
lifetime; that she died on the 11th day of August, 1909, in the city of
Manila; that before her death she had executed a last will and
testament; that he was present at the time said last will was executed;
that there were also present Timoteo Paez and Severo Tabora and a
person called Anselmo; that the said Tomasa Elizaga Yap Caong
signed the will in the presence of the witnesses; that he had seen her
sign the will with his own eyes; that the witnesses had signed the will in
the presence of the said Tomasa Elizaga Yap Caong and in the
presence of each other; that the said Tomasa Elizaga Yap Caong
signed the will voluntarily, and in his judgment, she was in the
possession of her faculties; that there were no threats or intimidation
used to induce her to sign the will; that she signed it voluntarily.
No further witnesses were called and there was no further opposition
presented to the legalization of the said will.
After hearing the foregoing witnesses, the Honorable A. S. Crossfield,
judge, on the 29th day of September, 1909, ordered that the last will
and testament of Tomasa Elizaga Yap Caong be allowed and
admitted to probate. The will was attached to the record and marked
Exhibit A. The court further ordered that one Yap Tua be appointed as
executor of the will, upon the giving of a bond, the amount of which
was to be fixed later.
From the record it appears that no further proceedings were had until
the 28th of February, 1910, when Yap Ca Kuan and Yap Ca Llu
appeared and presented a petition, alleging that they were
interested in the matters of the said will and desired to intervene and
asked that a guardian ad litem be appointed to represent them in the
cause.
On the 1st day of March, 1910, the court appointed Gabriel La O as
guardian ad litem of said parties. Gabriel La O accepted said
appointment, took the oath of office and entered upon the
performance of his duties as guardian ad litem of said parties. On the
2d day of March, 1910, the said Gabriel La O appeared in court and
presented a motion in which he alleged, in substance:
First. That the will dated the 11th day of August, 1909, and admitted to
probate by order of the court on the 29th day of September, 1909,
was null, for the following reasons:
(a) Because the same had not been authorized nor signed
by the witnesses as the law prescribes.
(b) Because at the time of the execution of the will, the said
Tomasa Elizaga Yap Caong was not then mentally
capacitated to execute the same, due to her sickness.
(c) Because her signature to the will had been obtained
through fraud and illegal influence upon the part of persons
who were to receive a benefit from the same, and because
the said Tomasa Elizaga Yap Caong had no intention of
executing the same.
Second. That before the execution of the said will, which they alleged
to be null, the said Tomasa Elizaga Yap Caong had executed another
will, with all the formalities required by law, upon the 6th day of
August, 1909.
Third. That the said Yap Ca Kuan and Yap Ca Llu were minors and
that, even though they had been negligent in presenting their
opposition to the legalization of the will, said negligence was
excusable, on account of their age.
Upon the foregoing facts the court was requested to annul and set
aside the order of the 29th day of September, 1909, and to grant to
said minors an opportunity to present new proof relating to the due
execution of said will. Said petition was based upon the provisions of
section 113 of the Code of Procedure in Civil Actions.
While it is not clear from the record, apparently the said minors in their
petition for a new trial, attached to said petition the alleged will of
August 6, 1909, of the said Tomasa Elizaga Yap Caong, and the
affidavits of Severo Tabora, Clotilde and Cornelia Serrano.
Upon the 10th day of March, 1910, upon the hearing of said motion for
a rehearing, the Honorable A. S. Crossfield, judge, granted said motion
and ordered that the rehearing should take place upon the 18th day
of March, 1910, and directed that notice should be given to the
petitioners of said rehearing and to all other persons interested in the
will. At the rehearing a number of witnesses were examined.
It will be remembered that one of the grounds upon which the new
trial was requested was that the deceased, Tomasa Elizaga Yap
Caong, had not signed the will (Exhibit A) of the 11th of August, 1909;
that in support of that allegation, the protestants, during the rehearing,
presented a witness called Tomas Puzon. Puzon testified that he was a
professor and an expert in handwriting, and upon being shown the will
(of August 11, 1909) Exhibit A, testified that the name and surname on
Exhibit A, in his judgment were written by two different hands, though
the given name is the same as that upon Exhibit 1 (the will of August 6,
1909), because he found in the name "Tomasa" on Exhibit A a similarity
41

in the tracing to the "Tomasa" in Exhibit 1; that comparing the surname
on Exhibit A with the surname on Exhibit 1 he found that the character
of the writing was thoroughly distinguished and different by the tracing
and by the direction of the letters in the said two exhibits; that from his
experience and observation he believed that the name "Tomasa" and
"Yap Caong," appearing in the signature on Exhibit A were written by
different person.
Puzon, being cross-examined with reference to his capacity as an
expert in handwriting, testified that while he was a student in the
Ateneo de Manila, he had studied penmanship; that he could not tell
exactly when that was, except that he had concluded his course in
the year 1882; that since that time he had been a telegraph operator
for seventeen years and that he had acted as an expert in hand-
writing in the courts in the provinces.
Gabriel La O was called as a witness during the rehearing and testified
that he had drawn the will of the 6th of August, 1909, at the request of
Tomasa Elizaga Yap Caong; that it was drawn in accordance with her
request and under her directions; that she had signed it; that the same
had been signed by three witnesses in her presence and in the
presence of each other; that the will was written in her house; that she
was sick and was lying in her bed, but that she sat up to sign the will;
that she signed the will with great difficulty; that she was signed in her
right mind.
The said Severo Tabora was also called as a witness again during the
rehearing. He testified that he knew Tomasa Elizaga Yap Caong
during her lifetime; that she was dead; that his signature as a witness
to Exhibit A (the will of August 11, 1909) was placed there by him; that
the deceased, Tomasa Elizaga Yap Caong, became familiar with the
contents of the will because she signed it before he (the witness) did;
that he did not know whether anybody there told her to sign the will or
not; that he signed two bills; that he did not know La O; that he did
not believe that Tomasa had signed the will (Exhibit A) before he
arrived at the house; that he was not sure that he had seen Tomasa
Elizaga Yap Caong sign Exhibit A because there were many people
and there was a screen at the door and he could not see; that he was
called a a witness to sign the second will and was told by the people
there that it was the same as the first; that the will (Exhibit A) was on a
table, far from the patient, in the house but outside the room where
the patient was; that the will was signed by Paez and himself; that
Anselmo Zacarias was there; that he was not sure whether Anselmo
Zacarias signed the will or not; that he was not sure whether Tomasa
Elizaga Yap Caong could see the table on which the will was written
at the time it was signed or not; that there were many people in the
house; that he remembered the names of Pedro and Lorenzo; that he
could not remember the names of any others; that the will remained
on the table after he signed it; that after he signed the will he went to
the room where Tomasa was lying; that the will was left on the table
outside; that Tomasa was very ill; that he heard the people asking
Tomasa to sign the will after he was (the witness) had signed it; that he
saw Paez sign the will, that he could not remember whether Anselmo
Zacarias had signed the will, because immediately after he and Paez
signed it, he left because he was hungry; that the place where the
table was located was in the same house, on the floor, about two
steps down from the floor on which Tomasa was.
Rufino R. Papa, was called as a witness for the purpose of supporting
the allegation that Tomasa Elizaga Yap Caong was mentally
incapacitated to make the will dated August 11, 1909 (Exhibit A).
Papa declared that he was a physician; that he knew Tomasa Elizaga
Yap Caong; that he had treated her in the month of August; that he
visited her first on the 8th day of August; that he visited her again on
the 9th and 10th days of August; that on the first visit he found the sick
woman completely weak very weak from her sickness, in the third
stage of tuberculosis; that she was lying in bed; that on the first visit he
found her with but little sense, the second day also, and on the third
day she had lost all her intelligence; that she died on the 11th of
August; tat he was requested to issue the death certificate; that when
he asked her (Tomasa) whether she was feeling any pain or anything
of that kind, she did not answer at all; that she was in a condition of
stupor, induced, as he believed, by the stage of uraemia from which
she was suffering.
Anselmo Zacarias, who had signed the will of August 11, 1909, was also
called as a witnesses during the rehearing. He testified that he had
known Tomasa Elizaga Yap Caong since he was a child; that Tomasa
was dead; that he had written the will exhibit A; that it was all in his
writing except the last part, which was written by Carlos Sobaco; that
he had written the will Exhibit A at the request of the uncle of Tomasa;
that Lorenzo, the brother of the deceased, was the one who had
instructed him as to the terms of the will ; that the deceased had not
spoken to him concerning the terms of the will; that the will was written
in the dining room of the residence of the deceased; that Tomasa was
in another room different from that in which the will was written; that
the will was not written in the presence of Tomasa; that he signed the
will as a witness in the room where Tomasa was lying; that the other
witnesses signed the will in the same room that when he went into the
room where the sick woman was (Tomasa Elizaga Yap Caong)
Lorenzo had the will in his hands; that when Lorenzo came to the bed
he showed the will to his sister (Tomasa) and requested her to sign it;
that she was lying stretched out on the bed and two women, who
were taking care of her, helped her to sit up, supporting her by lacing
their hands at her back; that when she started to write her name, he
withdrew from the bed on account of the best inside the room; when
he came back again to the sick bed the will was signed and was
again in the hands of Lorenzo; that he did not see Tomasa sign the will
because he withdrew from the room; that he did not know whether
Tomasa had been informed of the contents of the will or not; he
supposed she must have read it because Lorenzo turned the will over
to her; that when Lorenzo asked her to sign the will, he did not know
what she said he could not hear her voice; that he did not know
whether the sick woman was him sign the will or not; that he believed
that Tomasa died the next day after the will had been signed; that the
other two witnesses, Timoteo Paez and Severo Tabora, had signed the
will in the room with the sick woman; that he saw them sign the will
and that they saw him sign it; that he was not sure whether the
testatrix could have seen them at the time they signed the will or not;
that there was a screen before the bed; that he did not think that
Lorenzo had been giving instructions as to the contents of the will; that
about ten or fifteen minutes elapsed from the time Lorenzo handed
the will to Tomasa before she started to sign it; that the pen with which
she signed the will as given to her and she held it.
Clotilde Mariano testified that he was a cigarette maker; that he knew
Tomasa Elizaga Yap Caong and that she was dead; that she had
made two wills; that the first one was written by La O and the second
by Zacarias; that he was present at the time Zacarias wrote the
second one; that he was present when the second will was taken to
Tomasa for signature; that Lorenzo had told Tomasa that the second
will was exactly like the first; that Tomasa said she could not sign it.
On cross examination he testified that there was a lot of visitors there;
that Zacarias was not there; that Paez and Tabora were there; that he
had told Tomasa that the second will was exactly like the first.
During the rehearing Cornelia Serrano and Pedro Francisco were also
examined as witnesses. There is nothing in their testimony, however,
which in our opinion is important.
In rebuttal Julia e la Cruz was called as a witness. She testified that she
was 19 years of age; that she knew Tomasa Elizaga Yap Caong during
her lifetime; that she lived in the house of Tomasa during the last week
of her illness; that Tomasa had made two wills; that she was present
when the second one was executed; that a lawyer had drawn the will
in the dining room and after it had been drawn and everything
finished , it was taken to where Doa Tomasa was, for her signature;
that it was taken to her by Anselmo Zacarias; that she was present at
the time Tomasa signed the will that there were many other people
present also; that she did not see Timoteo Paez there; that she saw
Severo Tabora; that Anselmo Zacarias was present; that she did not
hear Clotilde Mariano ask Tomasa to sign the will; that she did not hear
Lorenzo say to Tomasa that the second will was the same sa the first;
42

that Tomasa asked her to help her to sit up and to put a pillow to her
back when Zacarias gave her some paper or document and asked
her to sign it; that she saw Tomasa take hold of the pen and try to sign
it but she did not see the place she signed the document, for the
reason that she left the room; that she saw Tomasa sign the document
but did not see on what place on the document she signed; and that
a notary public came the next morning; that Tomasa was able to
move about in the bed; that she had seen Tomasa in the act of
starting to write her signature when she told her to get her some water.
Yap Cao Quiang was also called as a witness in rebuttal. He testified
that he knew Tomasa Elizaga Yap Caong and knew that she had
made a will; that he saw the will at the time it was written; that he saw
Tomasa sign it on her head; that he did not hear Lorenzo ask Tomasa
to sign the will; that Lorenzo had handed the will to Tomasa to sign;
that he saw the witnesses sign the will on a table near the bed; that
the table was outside the curtain or screen and near the entrance to
the room where Tomasa was lying.
Lorenzo Yap Caong testified as a witness on rebuttal. He said that he
knew Anselmo Zacarias and that Zacarias wrote the will of Tomasa
Elizaga Yap Caong; that Tomasa had given him instructions; that
Tomasa had said that she sign the will; that the will was on a table
near the bed of Tomasa; that Tomasa, from where she was lying in the
bed, could seethe table where the witnesses had signed the will.
During the rehearing certain other witnesses were also examined; in
our opinion, however, it is necessary to quote from them for the reason
that their testimony in no way affects the preponderance of proof
above quoted.
At the close of the rehearing the Honorable A. S. Crossfield, judge, in
an extended opinion, reached the conclusion that the last will and
testament of Tomasa Elizaga Yap Caong, which was attached to the
record and marked Exhibit A was the last will and testament of the
said Tomasa Elizaga Yap Caong and admitted it to probate and
ordered that the administrator therefore appointed should continue
as such administrator. From that order the protestants appealed to this
court, and made the following assignments of error:
I. The court erred in declaring that the will, Exhibit A, was
executed by the deceased Tomasa Yap Caong, without the
intervention of any external influence on the part of other
persons.
II. The court erred in declaring that the testator had clear
knowledge and knew what she was doing at the time of
signing the will.
III. The court erred in declaring that the signature of the
deceased Tomasa Yap Caong in the first will, Exhibit 1, is
identical with that which appears in the second will, Exhibit
A.
IV. The court erred in declaring that the will, Exhibit A, was
executed in accordance with the law.
With reference to the first assignment of error, to wit, that undue
influence was brought to bear upon Tomasa Elizaga Yap Caong in the
execution of her will of August 11th, 1909 (Exhibit A), the lower court
found that no undue influence had been exercised over the mind of
the said Tomasa Elizaga Yap Caong. While it is true that some of the
witnesses testified that the brother of Tomasa, one Lorenzo, had
attempted to unduly influence her mind in the execution of he will,
upon the other hand, there were several witnesses who testified that
Lorenzo did not attempt, at the time of the execution of the will, to
influence her mind in any way. The lower court having had an
opportunity to see, to hear, and to note the witnesses during their
examination reached the conclusion that a preponderance of the
evidence showed that no undue influence had been used. we find no
good reason in the record for reversing his conclusions upon that
question.
With reference to the second assignment of error to wit, that Tomasa
Elizaga Yap Caong was not of sound mind and memory at the time of
the execution of the will, we find the same conflict in the declarations
of the witnesses which we found with reference to the undue
influence. While the testimony of Dr. Papa is very strong relating to the
mental condition of Tomasa Elizaga Yap Caong, yet, nevertheless, his
testimony related to a time perhaps twenty-four hours before the
execution of the will in question (Exhibit A). Several witnesses testified
that at the time the will was presented to her for her signature, she was
of sound mind and memory and asked for a pen and ink and kept the
will in her possession for ten or fifteen minutes and finally signed it. The
lower court found that there was a preponderance of evidence
sustaining the conclusion that Tomasa Elizaga Yap Caong was of
sound mind and memory and in the possession of her faculties at the
time she signed this will. In view of the conflict in the testimony of the
witnesses and the finding of the lower court, we do not feel justified in
reversing his conclusions upon that question.
With reference to the third assignment of error, to wit, that the lower
court committed an error in declaring that the signature of Tomasa
Elizaga Yap Caong, on her first will (August 6, 1909, Exhibit 1), is
identical with that which appears in the second will (August 11, 1909,
Exhibit A), it may be said:
First. That whether or not Tomasa Elizaga Yap Caong executed the will
of August 6, 1909 (Exhibit 1), was not the question presented to the
court. The question presented was whether or not she had duly
executed the will of August 11, 1909 (Exhibit A).
Second. There appears to be but little doubt that Tomasa Elizaga Yap
Caong did execute the will of August 6, 1909. Several witnesses
testified to that fact. The mere fact, however, that she executed a
former will is no proof that she did not execute a later will. She had a
perfect right, by will, to dispose of her property, in accordance with
the provisions of law, up to the very last of moment her life. She had a
perfect right to change, alter, modify or revoke any and all of her
former wills and to make a new one. Neither will the fact that the new
will fails to expressly revoke all former wills, in any way sustain the
charge that she did not make the new will.
Third. In said third assignment of error there is involved in the statement
that "The signature of Tomasa Elizaga Yap Caong, in her first will
(Exhibit 1) was not identical with that which appears in her second will
(Exhibit A)" the inference that she had not signed the second will and
all the argument of the appellants relating to said third assignment of
error is based upon the alleged fact that Tomasa Elizaga Yap Caong
did not sign Exhibit A. Several witnesses testified that they saw her write
the name "Tomasa." One of the witnesses testified that she had written
her full name. We are of the opinion, and we think the law sustains our
conclusion, that if Tomasa Elizaga Yap Caong signed any portion of
her name tot he will, with the intention to sign the same, that the will
amount to a signature. It has been held time and time again that one
who makes a will may sign the same by using a mark, the name
having been written by others. If writing a mark simply upon a will is
sufficient indication of the intention of the person to make and
execute a will, then certainly the writing of a portion or all of her name
ought to be accepted as a clear indication of her intention to
execute the will. (Re Goods of Savory, 15 Jur., 1042; Addy vs. Grix, 8
Ves. Jr., 504; Baker vs. Dening, 8 Ad. and El., 94 Long vs. Zook, 13 Penn.,
400; Vernon vs. Kirk, 30 Penn., 218; Cozzen's Will, 61 Penn.,
196; Re Goods of Emerson, L. R. 9 Ir., 443; Main vs. Ryder, 84 Penn.,
217.)
We find a very interesting case reported in 131 Pennsylvania State, 220
(6 L. R. A., 353), and cited by the appellees, which was known as
"Knox's Appeal." In this case one Harriett S. Knox died very suddenly on
the 17th of October, 1888, at the residence of her father. After her
death a paper was found in her room, wholly in her handwriting,
written with a lead pencil, upon three sides of an ordinary folded
43

sheet of note paper and bearing the signature simply of "Harriett." In
this paper the deceased attempted to make certain disposition of her
property. The will was presented for probate. The probation was
opposed upon the ground that the same did not contain the
signature of the deceased. That was the only question presented to
the court, whether the signature, in the form above indicated, was a
sufficient signature to constitute said paper the last will and testament
of Harriett S. Knox. It was admitted that the entire paper was in the
handwriting of the deceased. In deciding that question, Justice
Mitchell said:
The precise case of a signature by the first name only, does
not appear to have arisen either in England or the United
States; but the principle on which the decisions already
referred to were based, especially those in regard to signing
by initials only, are equally applicable to the present case,
and additional force is given to them by the decisions as to
what constitutes a binding signature to a contract. (Palmer
vs. Stephens, 1 Denio, 478; Sanborne vs. Flager, 9 Alle, 474;
Weston vs. Myers, 33 Ill., 424; Salmon Falls, etc. Co. vs.
Goddard, 14 How. (U. S.), 446.)
The man who cannot write and who is obliged to make his mark
simply therefor, upon the will, is held to "sign" as effectually as if he had
written his initials or his full name. It would seem to be sufficient, under
the law requiring a signature by the person making a will, to make his
mark, to place his initials or all or any part of his name thereon. In the
present case we think the proof shows, by a large preponderance,
that Tomasa Elizaga Yap Caong, if she did not sign her full name, did
at least sign her given name "Tomasa," and that is sufficient to satisfy
the statute.
With reference to the fourth assignment of error, it may be said that
the argument which was preceded is sufficient to answer it also.
During the trial of the cause the protestants made a strong effort to
show that Tomasa Elizaga Yap Caong did not sign her name in the
presence of the witnesses and that they did not sign their names in
their presence nor in the presence of each other. Upon that question
there is considerable conflict of proof. An effort was made to show
that the will was signed by the witnesses in one room and by Tomasa
in another. A plan of the room or rooms in which the will was signed
was presented as proof and it was shown that there was but one
room; that one part of the room was one or two steps below the floor
of the other; that the table on which the witnesses signed the will was
located upon the lower floor of the room. It was also shown that from
the bed in which Tomasa was lying, it was possible for her to see the
table on which the witnesses signed the will. While the rule is absolute
that one who makes a will must sign the same in the presence of the
witnesses and that the witnesses must sign in the presence of each
other, as well as in the presence of the one making the will, yet,
nevertheless, the actual seeing of the signatures made is not
necessary. It is sufficient if the signatures are made where it is possible
for each of the necessary parties, if they desire to see, may see the
signatures placed upon the will.
In cases like the present where there is so much conflict in the proof, it
is very difficult for the courts to reach conclusions that are absolutely
free from doubt. Great weight must be given by appellate courts who
do not see or hear the witnesses, to the conclusions of the trial courts
who had that opportunity.
Upon a full consideration of the record, we find that a preponderance
of the proof shows that Tomasa Elizaga Yap Caong did execute, freely
and voluntarily, while she was in the right use of all her faculties, the will
dated August 11, 1909 (Exhibit A). Therefore the judgment of the lower
court admitting said will to probate is hereby affirmed with costs.
Arellano, C. J., Torres, Carson, Moreland and Araullo, JJ., concur.
G.R. No. L-19142 March 5, 1923
In the matter of the estate of Mariano Corrales Tan, deceased.
FLAVIANA SAMSON, petitioner-appellee,
vs.
VICENTE CORRALES TAN QUINTIN, oppositor-appellant.
Marcaida, Capili and Ocampo for appellant.
Epimaco Molina for appellee.
OSTRAND, J.:
This is an appeal from an order of the Court of First Instance of Manila
admitting to probate a document alleged to be the last will and
testament of the deceased Mariano Corrales Tan. There is no direct
evidence as to the interest of the oppositor-appellant in the estate in
question, though it may, perhaps, be inferred from the testimony of his
wife Maximina Ong that he is the son of the deceased.
In his answer to the petition for probate he alleges, in substance, that
the will is incomplete and fraudulent and does not express the true
intent of the testator; that the testator acted under duress and under
undue influence, and that at the time of the execution of the will he
was not of sound and disposing mind.
We do not think the opponent has succeeded in proving any of his
allegations. There is no evidence whatever showing that the testator
acted under duress or undue influence and the only question of fact
which we need consider is whether the testator was of sound and
disposing mind when the document in question was executed.
Upon this point the testimony of Dr. Tee Han Kee, the attending
physician, as a witness for the opposition, is to the effect that the
deceased was suffering from diabetes and had been in a comatose
condition for several days prior to his death. He died about eight or
nine o'clock in the evening of December 26, 1921, and the will is
alleged to have been executed in the forenoon of the same day.
Counsel for the appellant, in his well-prepared brief, argues ably and
vigorously that comaimplies complete unconsciousness, and that the
testator, therefore, could not at that time have been in possession of
his mental faculties and have executed a will. There are, however,
varying degrees of coma and in its lighter forms the patient may be
aroused and have lucid intervals. Such seems to have been the case
here. Doctor Tee Han Kee, the opponent's principal witness, who
visited the deceased in the evening of December 25th, says he
then seemed to be in a state ofcoma and that in the forenoon of
December 26th, when the doctor again visited him, he was in "the
same state of coma." Maximina Ong, the wife of the opponent, the
only other witness for the opposition, states that on December 26th the
deceased could not talk and did not recognize anyone. But all the
witnesses presented by the petitioner, five in number, testify that the
deceased was conscious, could hear and understand what was said
to him and was able to indicate his desires. Four of these witnesses
state that he could speak distinctly; the fifth, Velhagen, says that the
deceased only moved his head in answer to questions.
That the deceased was in an exceedingly feeble condition at the
time the will was executed is evident, but if the witnesses presented in
support of the petition told the truth there can be no doubt that he
was of sound mind and capable of making his will. And we see no
reason to discredit any of these witnesses; the discrepancies found
between their respective versions of what took place at the execution
of the document are comparatively unimportant and so far from
weakening their testimony rather lend strength to it by indicating the
absence of any conspiracy among them.
As against their testimony we have only the testimony of Maximina
Ong and Dr. Tee Han Kee. The former is not a disinterested witness. As
to the testimony of the latter it is sufficient to say that mere professional
speculation cannot prevail over the positive statements of five
apparently credible witnesses whose testimony does not in itself seem
unreasonable.
44

There is no direct evidence in the record showing that the publication
of the time and place of the hearing of the petition for probate has
been made as provided for in section 630 of the Code of Civil
Procedure and the appellant argues that the court below erred in
admitting the will to probate without proof of such publication. This
question not having been raised in the court below will not be
considered here.
Section 630 of the Code of Civil Procedure, speaking of hearings for
the probate of wills, also provides that "At the hearing all testimony
shall be taken under oath, reduced to writing and signed by the
witnesses" and the appellant maintains that the transcript of the
testimony of the witness Dr. N. M. Saleeby, not having been signed by
the witness, the testimony should have been excluded.
There is no merit in this contention. When, as in this case, the testimony
is taken by the stenographer of the court and certified to by him, the
provision quoted can only be regarded as directory and a failure to
observe the provision will not render the testimony inadmissible. (Reese
vs. Nolan, 99 Ala., 203.)
The order appealed from is affirmed, with the costs against the
appellant. So ordered.
Araullo, C. J., Street, Malcolm, Avancea, Villamor, Johns, and
Romualdez, JJ., concur.
G.R. No. L-6650 December 5, 1913
SANTIAGO GALVEZ, petitioner-appellant,
vs.
CANUTA GALVEZ, opponent-appellee.
Eugenio Paguia, for appellant.
Antonio Constantino, for appellee.

TORRES, J.:
This appeal was raised by counsel for Santiago Galvez from the
judgment of October 25, 1910, whereby the Honorable Simplicio del
Rosario, judge, denied the petition presented by the said Galvez for
the probate of the will, Exhibit B, and appointed as administratrix of
the testator's estate, the latter's only legitimate daughter, Canuta
Galvez, under condition that she furnish bond in the sum of P2,000 for
the faithful discharge of the duties of her office.
Counsel for Santiago Galvez petitioned the Court of First Intance of
Bulacan for the probate of the will which it was alleged Victor Galvez
executed in the dialect of the province, on August 12, 1910, in
presence of the witnesses Juan Dimanlig, J. Leoquinco, and Nazaria
Galvez. This instrument appears also to have been signed by the
witness Lorenzo Galvez, below the name and surname of the testator.
(p. 3, B. of E., translated into Spanish on p. 5.)lawphil.net
Further on in the same record, pages 6 to 7, there appears another will
written in Tagalog and executed on the same date by Victor Galvez
in presence of the witnesses Cirilo Paguia, Florentino Sison, and Juan
Menodoza.
In the course of the proceedings various witnesses were examined by
the petitioner and by the respondent, Canuta Galvez, the only
daughter of the alleged testator, and the attorney Antonio
Constantino stated that he waived the right to present evidence and
acquiesced in the petition made by Santiago Galvez for the probate
of the will, in view of a transaction entered into by the parties; but the
court did not accept the compromise, on the ground that it is
improper to hold that a will is the faithful expression of the last wishes of
a decedent, upon the mere fact of the parties' petitioning to that
effect, when such will, as in the case at bar, was assailed at the
commencement of the suit.
After due trial the judgment aforementioned was rendered, from
which an appeal was entered by counsel for the petitioner, Santiago
Galvez.
This case deals with the probate of the second will executed by Victor
Galvez on August 12, 1910, and signed in his presence by the witness
Juan Dimanlig, Nazaria Galvez and J. Leoquinco, and, as the testator
was no longer able to sign on account of his sickness, Lorenzo Galvez,
at his request, affixed his own signature to the instrument, for him and
below his written name. This will, written in Tagalog and translated into
Spanish, is marked as Exhibit B and is found on pages 3 and 5 of the bill
of exceptions.
The other will, written in Tagalog and marked Exhibit A, was presented
during the proceedings; it was the first one the testator executed on
the same date, and, for the purpose of correcting an error contained
in this first will, he executed another will, the second, which is the one
exhibited for probate.
Notwithstanding the opposition by Canuta Galvez, the testator's
daughter, who alleged that her father, owing to his very serious
sickness with cholera, lacked the intellectual capacity and clear
judgment requisite for making a will, and notwithstanding her
testimony adduced in corroboration of her brief, the record sufficiently
proved the contrary; the subscribing witnesses to the will affirmed
under oath that they were present when Victor Galvez, then sick in his
house, stated to them that the document read before them by
Lorenzo Galvez contained his last will and testament, and that, as the
testator was no longer able to sign, he charged his nephew Lorenzo to
do so in his stead, which he latter did by affixing his own signature to
the document, after having written at the foot of the same the name
and surname of the testator, Victor Galvez, who as these witnesses
observed, was of sound mind and in the full enjoyment of his mental
faculties; he talked intelligently and with perfect knowledge of what
was taking place. They further testified that they all, including the said
Lorenzo Galvez, signed the will in the presence of the testator, Victor
Galvez, who was at the time lying on his bed.
In order to hold that Victor Galvez, on account of serious sickness, was
not then of sound mind and did not have full knowledge of his acts
and, therefore, was incapable to execute a will, it is necessary that
the proceedings disclose conclusive proof of his mental incapacity
and of his evident lack of reason and judgment at the time he
executed his will in the presence of the witnesses whose signatures
appear at the foot thereof, for these witnesses capacity positively
affirmed that Victor Galvez, on executing his will showed that he was
in full possession of his intellectual faculties and was perfectly
cognizant of his acts.
The physician Dr. Vicente de Jesus, in his testimony, referred to the
effects and results of cholera on a patient in ordinary cases and in the
regular course of this disease; but his statements, taken in general,
cannot, in the present suit, served as a ground upon which to
predicate incapacity, for the reason that he did not examine Victor
Galvez, nor did he even see him between the hours of 12 in the
morning and 3 in the afternoon of the 12th of August, 1910, during
which period the testator ordered his will drawn up and the attesting
witnesses signed it, Galvez having died at about 6 o'clock that same
afternoon. It may be true that cholera patients do, in the majority of
cases, become incapacitated in the manner described by the
witness; but there may be exceptions to the general rule, and to judge
from the testimony of the witnesses who saw and communicated with
the patient Victor Galvez at the time he executed his will, his physical
and mental condition must have been an exception, since he
demonstrated that he had sufficient energy and clear intelligence to
execute his last will in accordance with the requirements of the
law.1awphi1.net
45

Besides the attestation of the aforesaid subscribing witnesses, the
contents of the will and the testator's positive determination to rectify
the error he incurred in the execution of his first will, show that Victor
Galvez was in his sound mind and was perfectly aware of his duties in
respect to the legal, inviolable rights of his daughter and sole heir,
Canuta Galvez.
Inasmuch as, in the drafting and execution of the second will (Exhibit
B), signed in the name of the testator by Lorenzo Galvez and the
witnesses Juan Dimanlig, Nazaria Galvez, and J. Leoquinco, the
formalities prescribed by section 618 of the Code of Civil Procedure
were observed, for the testator's name appears written at the foot of
the will and under this name Lorenzo Galvez signed by direction of the
testator himself, and the instrument was also signed by the attesting
witnesses before mentioned who affirmed that they heard and
attested the dispositions made by the testator and witnessed the
reading of the will, that they were present when the said Lorenzo
Galvez signed the will in the name of the testator and that they signed
it in the presence of all the persons assembled in the latter's house, the
conclusion is inevitable that Victor Galvez, in executing his will, did so
with a sound mind and the full use of his mental faculties; therefore,
the will must be admitted to probate.
For the foregoing reasons, with a reversal of the judgment appealed
from in so far as it denies the probate of the said will, we hereby hold
that the same was duly executed by Victor Galvez and expresses his
last wishes, and we affirm the rest of the said judgment, with respect to
the appointment, as administratrix, of Canuta Galvez, the testator's
daughter and sole heir.
Arellano, C.J., Johnson, Carson and Moreland, JJ., concur.
Trent, J., dissents.
G.R. No. L-21015 March 24, 1924
MIGUELA CARRILLO, for herself and as administratrix of the intestate
estate of ADRIANA CARRILLO, deceased,plaintiff-appellant,
vs.
JUSTINIANO JAOJOCO and MARCOS JAOJOCO, defendants-
appellees.
Crispin Oben and Gibbs & McDonough for appellant.
Salinas & Salinas for appellees.
AVANCEA, J.:
On the evening of December 9, 1918, Adriana Carrillo executed a
document of sale of eleven parcels of land, with one-half of the
improvements thereon, situated in the barrio of Ulong-Tubig,
municipality of Carmona, Province of Cavite, containing an area of
330,409 square meters, in favor of Marcos Jaojoco for the price of
P4,000 which the seller admitted having received. Nine days
afterwards Adriana Carrillo was declared mentally incapacitated by
the Court of First Instance and later on died; and proceeding having
been instituted for the administrator and settlement of her estate, her
sister Miguela Carrillo was appointed judicial administratrix of said
estate. In her capacity as such administratrix, Miguela Carrillo now
brings this action for the annulment of said contract of sale executed
by Adriana Carrillo on December 9, 1918, against Marcos Jaojoco, the
purchaser, and his father Justiniano Jaojoco. The defendants were
absolved from the complaint, and from this judgment the plaintiff
appealed.
The plaintiff has attempted to prove that prior to the year 1918 and
specially in the year 1917, Adriana Carrillo performed acts which
indicated that she was mentally deranged. We have made a
thorough examination of the character of those acts, and believe that
they do not necessarily show that Adriana Carrillo was mentally
insane. The same thing can be said as to her having entered the
"Hospital de San Lazaro" and the "Hospicio de San Jose," in the
absence of an affirmative showing to her motive for entering said
institutions, for while it is true that insane persons are confined in those
institutions, yet there also enter persons who are not insane. Against
the inference that from said acts the plaintiff pretends to draw, in
order to assert the mental incapacity of Adriana Carrillo in that time,
there is in the record evidence of acts while more clearly and more
convincingly show that she must not have been mentally
incapacitated before the execution of the document sought to be
annulled in this action. In January, 1917, her husband having died, she
was appointed judicial administratrix of the latter's estate, and to his
end she took the oath of office, gave the proper bond discharged her
functions in the same manner and with the same diligence as any
other person of knowingly sound mind would have done. Documents,
were introduced which show complex and numerous acts of
administration performed personally by said Adriana Carrillo, such as
the disposition of various and considerable amounts of money in
transactions made with different persons, the correctness of said acts
never having been, nor can it be, put in question. We have given
special attention to the fact of Adriana Carrillo having executed
contracts of lease, appeared in court in the testate proceeding in
which she was administratrix, and in fact continued acting as such
administratrix of the estate of her husband until August, 1917, when for
the purpose of taking vacation, she requested to be relieved from the
office. On November 13, 1918, Adriana Carrillo entered the "Hospital
de San Juan de Dios" by reason of having had an access of cerebral
hemorrhage with hemiplegia, and there she was attended by Doctor
Ocampo until she left on the 18th of December of the same year very
much better off although not completely cured. Asked about the
mental incapacity of Adriana Carrillo during her treatment, Doctor
Ocampo answered that he did not pay attention to it, but that he
could affirm that the answers she gave him were responsive to the
questions put to her, and that the hemiplegia did not affect her head
but only one-half of the body. After leaving the "Hospital de San Juan
de Dios" on December 8, 1918, Adriana Carrillo called at the office of
the notary public, Mr. Ramos Salinas, and there executed the contract
of sale in question on the 9th of that month. The notary, Mr. Salinas,
who authorized the document, testified that on that day he has been
for some time with Adriana Carrillo, waiting for one of the witnesses to
the document, and he did not notice anything abnormal in her
countenance, which on the contrary, appeared to him dignified,
answering correctly all the questions he made to her without
inconsistencies or failure of memory, for which reason, says this witness,
he was surprised when afterwards he learned that the mental
capacity of Adriana Carrillo was in question.
It must be noted that the principal witness for the plaintiff and the most
interested party in the case, being the plaintiff herself, was the surety
of Adriana Carrillo when the latter was appointed judicial
administratrix of the estate of her husband in 1917. It cannot be
understood, if Adriana Carrillo was in that time mentally
incapacitated, why Miguela Carrillo, the plaintiff, who knew it,
consented to be a surety for her. It must likewise be noted that the
other witnesses of the plaintiff, who testified to the incapacity of
Adriana Carrillo, also made transactions with her precisely at the time,
when according to them, she was mentally incapacitated. In view of
all of this, which is proven by documents and the testimonies of
witnesses completely disinterested in the case, it cannot be held that
on December 9, 1918, when Adriana Carrillo signed the document,
she was mentally incapacitated.
The fact that nine days after the execution of the contract, Adriana
Carrillo was declared mentally incapacitated by the trial court does
not prove that she was so when she executed the contract. After all,
this can perfectly be explained by saying that her disease became
aggravated subsequently.
Our conclusion is that prior to the execution of the document in
question the usual state of Adriana Carrillo was that of being mentally
capable, and consequently the burden of proof that she was
mentally incapacitated at a specified time is upon him who affirms
said incapacity. If no sufficient proof to this effect is presented, her
capacity must be presumed.
46

Attention is also called to the disproportion between the price of the
sale and the real value of the land sold. The evidence, however,
rather shows that the price of P4,000 paid for the land, which
contained an area of 33 hectares, represents it real value, for its is little
more than P100 per hectare, which is approximately the value of
other lands of the same nature in the vicinity. But even supposing that
there is such a disproportion, it alone is not sufficient to justify the
conclusion that Adriana Carrillo was mentally incapacitated for
having made the sale under such conditions. Marcos Jaojoco is a
nephew of Adriana Carrillo, and Justiniano Jaojoco her brother-in-law,
and both defendants, who are father and son, had Adriana Carrillo in
charge, took her to the "Hospital de San Juan de Dios," and cared for
her during the time she was there, and for such acts they may have
won her gratitude. Under these circumstances there is nothing illegal,
or even reprehensible, and much less strange in Adriana Carrillo's
having taken into account those services rendered her by the
defendants and reciprocated thereof by a favorable transaction.
Having no ascendants and descendents, she could, in consideration
of all the these circumstances, have even given as a donation, or left
by will, these lands to the defendants.
The judgment appealed from is affirmed with costs against the
appellant. So ordered.
Araullo, C.J., Street, Malcolm, Ostrand, Johns and Romualdez, JJ.,
concur.
G.R. No. 857 February 10, 1903
EULALIO HERNAEZ, plaintiff-appellant,
vs.
ROSENDO HERNAEZ, defendant-appellee.
Ramon N. Orozco, for appellant.
Ramon Avancea, for appellee.
ARELLANO, C.J.:
The subject of this action is the will executed by Doa Juana Espinosa,
widow of Don Pedro Hernaez, on December 5, 1894, in Bacolod,
Island of Negros, before a notary public, and three witnesses, and with
the aid of an interpreter, the testatrix not understanding Spanish. In this
will the principal dispositions are those relative to the legacy of the
third part of the hereditary estate of free disposal, which the testatrix
leaves to her eldest son, Rosendo, to the betterment of the other third
made in favor of this same son, and the distribution of the remaining
third in six equal parts among her five children, Rosendo Domingo,
Magdalena, Mateo, and Eulalio Hernaez y Espinosa, and her two
granddaughters, Peregrina and Victorina Parapa y Hernaez, in
representation of their deceased mother, Clara Hernaez y Espinosa.
The plaintiff is one of the sons of the testatrix and the complaint has
not been acquiesced in by Magdalena Hernaez y Espinosa nor
Peregrina and Victorina Parapa y Hernaez, whose consent plaintiff
sought to obtain.
The action brought is for the annulment of the will upon the ground:
(1) of the incapacity of the testatrix; (2) the incapacity of the notary,
attesting witnesses, and the interpreter; and (3) a substantial formal
defect in the will.
The incapacity of the testatrix according to the complaint is alleged
to consist in this: That on the 5th of December, 1894, she was over 80
years of age and was so ill that three days before she had received
the sacraments and extreme unction, and that two days afterwards
she died; and that prior thereto she walked in a stooping attitude, and
gave contradictory orders, as a result of her senile debility. The
incapacity of the notary in that he did not understand the Visayan
dialect, the language of the testatrix. The incapacity of the attesting
witnesses is supposed to consist in their not having a perfect
knowledge of Spanish, and the incapacity of the interpreter in that he
was an amaneunsis of the notary and was the person who wrote out
the will. The substantial formal defect of the will is supposed to consist
in the fact that two physicians were not present to certify to the sanity
of the testatrix at the time of its execution, and the absence of two
interpreters to translate the will, because executed in a foreign
language.
These are briefly, the grounds upon which the action for the
annulment of the will rests, and these were the issues raised at the trial.
The evidence introduced bears upon the issues above stated to which
alone the decision of the court must be limited.
For the purpose of proving the mental incapacity of the testatrix the
plaintiff introduced oral testimony and expert evidence; the oral
testimony was for the purpose of proving the following facts: That the
testatrix on the 5th day of December, 1894, was so ill that she could
not speak; that by reason of her age she walked in a stooping position
and gave contradictory orders. The priest who was with her during the
last hours of her life was called to testify that on the 3rd day of the
same month and year he had administered the sacraments to her,
and that the patient was at that time so seriously ill that he scarcely
understood her when she spoke. The expert witnesses were called to
testify upon the question propounded: "Could an octogenarian in the
pathological condition peculiar to that age possess sufficient mental
faculties to permit her to dispose of her property causa mortis?" The
result of the oral evidence is that the testimony of the four witnesses
called has proven one fact, which is, that the testatrix toward the end
of her life walked in a stooping position. The first witness, Isidora de la
Torre, affirmed that three days before her death she was very ill but
answered questions which were addressed her, and only one witness,
Ambrosia Sotsing, testified that four days before the death of the
testatrix she had been to see the latter and that she could not speak
then because she was suffering from fainting fits, this witness being the
only one who testified that the testatrix had given contrary order.
These four witnesses are, respectively, 78, 75, 60, and 57 years of age.
The priest, D. Nicolas Alba, stated that he had administered the
sacraments to the testatrix before the execution of the will but was
unable to remember the day; that he understood her then when she
spoke and that the testatrix frequently confessed even when not
feeling seriously ill, and that when sick she was accustomed to confess
in her house (this point is confirmed by the witness Sotsing who testified
that she had been to see the testatrix three times and that on all three
of these occasions the communion had been administered to her);
that when he confessed her some days before the execution of the
will he had also administered the extreme unction on account of her
advanced age; that at that time she was in the enjoyment of her
mental faculties but the witness could not state whether she preserved
them up to the moment of her death, he not being present when this
occurred. The expert evidence introduced by the testimony of Dr.
Lope de la Rama gave the following result: That if the organs are
intact the physiological functions are perfectly performed, and that
consequently some men before reaching the age of decrepitude lose
their mental faculties by the weakening of the brain, either as the
result of illness or of abuses, while others preserve their understanding
to a very advanced age. It is unnecessary to pass upon the oral
evidence introduced by the defendant; the documentary evidence
(record, p. 38) shows that the testatrix did not die two days after the
execution of her will. The will was executed on the 5th and her death
occurred on the 12th of December, 1894.
It is sufficient to state that neither from the facts elicited by the
interrogatories nor the documents presented with the complaint can
the conclusion be reached that the testatrix was deprived of her
mental faculties. The fact that on old woman gives contradictory
orders, that she walks in a stooping position, that she has fainting fits,
that she received the sacraments some days before making her will,
are circumstances which even if fully demonstrated by proof could no
lead the court to establish a conclusion contrary to the mental
soundness of a person who is to be presumed to be in the full
enjoyment of the mental faculties until the contrary is conclusively
proven. The notary in compliance with the requirements of article 695
of the Civil Code certifies that in his judgment the testatrix had the
47

necessary legal capacity and the use of the necessary mental
faculties for the purposes of the execution of the will. "The Code might
have adopted either one of two systems [with respect to the mental
capacity of the testator] that of establishing as a general rule the
presumption of soundness of the mental faculties until the contrary be
proven, or that of presuming mental weakness in the absence of proof
that the act was performed while the mental faculties were in their
normal condition. Under the first presumption a will made should be
declared valid in all cases, in the absence of evidence to the
contrary. Under the second it would have to be considered as void
upon the presumption that it was executed by a person demented,
unless the contrary is shown. The Code has adopted the first system as
being the most rational, by accepting the principle that mental
soundness is always to be presumed with respect to a person who has
not been previously incapacitated until the contrary is demonstrated
and proven by the proper person and the correctness of this choice is
beyond doubt; in the meantime the intervention of the notary and the
witnesses constitutes a true guaranty of the capacity of the testator,
by reason of their knowledge of the matter. (Manresa, Commentaries,
vol. 5, p. 344.)
It has at no time been regarded as a ground for the annulment of a
public instrument executed before a notary public by a native of
these Islands, ignorant of Spanish, that the notary was not acquainted
with the dialect of the party executing the same. If this officer, upon
whom the law imposes the obligation of drawing the instrument in the
official language, that is, Castilian, does not know the dialect he can
avail himself of an interpreter in accordance with the provisions of the
law itself; hence the fact that the notary who legalized the will in
question did not know the Visayan dialect spoken by the testatrix is by
no means an argument in favor of the nullity of this public instrument,
nor has it been for the nullity of any one of the long series of
instruments executed before Spanish notaries, and even Filipino
notaries, unacquainted with the dialect or dialects of the locality in
which they performed their duties or the special dialect of the party.
With respect to the attesting witnesses it has been fully proven by the
manner in which they testified at the trial, "without the necessity of an
interpreter," as to those called as witnesses and by conclusive
evidence as to the deceased attesting witness whose signature and
competency have been completely established, that they knew the
dialect of the testatrix in accordance with section 5, article 681, of the
Civil Code, and also understood Spanish. As alleged, but not proven,
their knowledge of the latter language may not have been perfect,
but this does not make them incompetent, nor is it a ground for
annulment. Finally, the prohibition of article 681, section 8, is not
applicable to the interpreter, of whose services the notary availed
himself for the execution, drafting and legalization of the will, for the
simple reason that it does not refer to the interpreter but the witnesses,
and there is nothing to authorize the extensive interpretation
attempted to be made of its precepts.
The presence of two physicians, as required in the case covered by
article 665, was not necessary. "This precept refers clearly and
expressly to the conditions which must be complied with in order that
a demented person may make a will by availing himself of a lucid
interval, and is entirely distinct from the cases governed by article 685
when the testator has not been declared demented." (Judgment of
June 10, 1897.)
Had anyone observed any incapacity in the testatrix some time
before it would have been easy to have taken the proper steps to
obtain a declaration of the status of incapacity in accordance with
the provisions of the Civil Code, and then, after a legal declaration of
this condition, she could not have executed a will unless two
physicians had certified that at the time of her examination she was in
the enjoyment of a lucid interval; but there was no necessity of waiting
for a lucid interval when the constant condition was that of lucidity.
Nor was it necessary that two interpreters be present as required by
article 648 of the Civil Code. This is a requisite for the execution of a will
in a foreign language, and neither by the letter nor by the purpose of
this article could it be required with regard to the will in question. Not
by the letter, because neither the testatrix nor the notary expressed
themselves in a foreign language. Neither the Castilian spoken by the
notary nor the Visayan spoken by the testatrix are foreign languages.
Nor is the case within the purpose of the law. "The prior laws had not
provided for the execution of a will by a foreigner in his own
language. Such a case could not arise under the old law because the
right to make a will being one inherent in citizenship they
systematically denied to the foreigner the exercise of that right. The
execution of a will being at the present time based upon natural right,
the foreigner is entitled equally with the citizen to make a will.
Although it is true that foreigners, under international law, can make a
will before the consuls of their nation, it is none the less true that they
do not always make their wills in a town in which an accredited consul
resides. For all these reasons it was necessary to provide by law for a
special form for the will of the foreigner who might be ignorant of the
Spanish language and yet have occasion to make a will. The form
which the law has adopted satisfies the most exigent spirit, for the
presence of two interpreters, the fact that the will is recorded in a
public instrument in both languages, and that it is signed by all who
take part in the act are the most efficacious guarantees against fraud
and bad faith." (Falcon, 3 Civil Code, p. 94.) Text writers discuss the
application of article 684 to a will executed in one of the local idioms
of Spain, considering them to be on the same footing as a foreign
language in a place in which Castilian is the tongue spoken or
understood; but we have no occasion to enter into this discussion, the
legal sense and constant practice observed in these Islands being
sufficient.
Upon these grounds we hold that judgment must be for the
defendant, declaring the will executed by Doa Juana Espinosa on
the 5th of December, 1894, to be valid and efficacious, without
special imposition of costs.
So ordered.
C.A. No. 8075 March 25, 1946
TRINIDAD NEYRA, plaintiff-appellant,
vs.
ENCARNACION NEYRA, defendant-appellee.
Alejandro M. Panis for appellant.
Lucio Javillonar for appellee.
DE JOYA, J.:
On October 25, 1939, Trinidad Neyra filed a complaint against her
sister, Encarnacion Neyra, in the Court of First Instance of the City of
Manila, for the recovery of one-half () of the property mentioned
and described therein, which had been left by their deceased father,
Severo Neyra, and which had been previously divided equally
between the two extrajudicially, demanding at the same time one-
half () of the rents collected on the said property by the defendant
Encarnacion Neyra. The defendant filed an answer admitting that the
property mentioned and described therein was community property,
and at the same time set up counterclaims amounting to over P1,000,
for money spent, during the last illness of their father, and for money
loaned to the plaintiff.
After the trial of the case, the court found that the plaintiff was really
entitled to one-half () of the said property, adjudicating the same to
her, but at the same time ordered said plaintiff to pay to the
defendant the sum of P727.77, plus interests, by virtue of said
counterclaims.
Plaintiff Trinidad Neyra appealed from the said decision, to the Court
of Appeals for Manila, alleging several errors, attacking the execution
and validity of said agreement; and on November 10, 1942, said
appeal was dismissed, pursuant to the to an agreement or
compromise entered into by the parties, as shown by the
48

corresponding document, dated November 3, 1942, which was filed in
the case the following day, November 4, 1942.
In the meanwhile, Encarnacion Neyra, who had been sickly for about
two years, unexpectedly died, on November 4, 1942 at the age of 48,
allegedly from heart attack, as a consequence of Addison's disease
from which, it was claimed, she had been suffering for sometime.
In view of the decision of the Court of Appeals, dated November 10,
1942, dismissing the appeal, by virtue of said agreement or
compromise, Atty. Lucio Javillonar, claiming to represent Encarnacion
Neyra, who had died since November 4, 1942, and other relatives of
hers, filed a petition, dated November 23, 1942, asking for the
reconsideration of said decision of the Court of Appeals, dismissing the
appeal, claiming that the alleged compromise or agreement, dated
November 3, 1942, could not have been understood by Encarnacion
Neyra, as she was already then at the threshold of death, and that as
a matter of fact she died the following day; and that if it had been
signed at all by said Encarnacion Neyra, her thumbmark appearing
on said document must have been affixed thereto by Trinidad Neyra's
attorney, against Encarnacion's will; and that the court had no more
jurisdiction over the case, when the alleged agreement was filed on
November 4, 1942, at the instance of Trinidad Neyra, as Encarnacion
was already dead at the time.
The principal question to be decided, in connection with said petition
for reconsideration, is whether or not said compromise or agreement
had been legally executed and signed by Encarnacion Neyra, on
November 3, 1942. Trinidad Neyra maintains the affirmative.
The voluminous evidence, testimonial and documentary, adduced by
the parties, in this case, has fully established the following facts:
That Severo Nayra died intestate in the City of Manila, on May 6, 1938,
leaving certain properties and two children, by his first marriage,
named Encarnacion Neyra and Trinidad Neyra, and other children by
his second marriage; That after the death of Severo Neyra, the two
sisters, Encarnacion Neyra and Trinidad Neyra, had serious
misunderstandings, in connection with the properties left by their
deceased father, and so serious were their dissensions that, after
March 31, 1939, they had two litigations in the Court of First Instance of
Manila, concerning said properties. In the first case, filed in March 31,
1939, Trinidad Neyra and others demanded by Encarnacion Neyra
and others the annulment of the sale of the property located at No.
366 Raon Street, Manila which was finally decided in favor of the
defendants, in the court of first instance, and in the Court of Appeals,
on December 21, 1943 (G.R. No. 8162); and the second is the instance
case.
That Encarnacion Neyra, who had remained single, and who had no
longer any ascendants, executed a will on September 14, 1939,
marked Exhibit 16, disposing of her properties in favor of the
"Congregacion de Religiosas de la Virgen Maria" and her other
relatives, named Teodora Neyra, Pilar de Guzman and Maria Jacobo
Vda. de Blanco, making no provision whatsoever in said will, in favor of
her only sister of the whole blood, Trinidad Neyra, who had become
her bitter enemy; that when the said will was brought to the attention
of the authorities of said Congregation, after due deliberation and
consideration, said religious organization declined the bounty offered
by Encarnacion Neyra, and said decision of the Congregation was
duly communicated to her; that in order to overcome the difficulties
encountered by said religious organization in not accepting the
generosity of Encarnacion Neyra, the latter decided to make a new
will, and for that purpose, about one week before her death, sent for
Atty. Ricardo Sikat, and gave him instructions for the preparation of a
new will; that Atty. Sikat, instead of preparing a new will, merely
prepared a draft of a codicil, amending said will, dated September
14, 1939, again naming said religious organization, among others as
beneficiary, and said draft of a codicil was also forwarded to the
authorities of religious organization, for their consideration and
acceptance; but it was also rejected.
In the meanwhile, Encarnacion Neyra had become seriously ill,
suffering from Addison's disease, and on October 31, 1942, she sent for
her religious adviser and confessor, Mons. Vicente Fernandez of the
Quiapo Church to make confession, after which she requested that
holy mass be celebrated in her house at No. 366 Raon Street, City of
Manila, so that she might take holy communion; that Mons. Fernandez
caused the necessary arrangements to be made, and, as a matter of
fact, on November 1, 1942, holy mass was solemnized in her house by
Father Teodoro Garcia, also of the Quiapo Church, on which
occasion, Encarnacion Neyra, who remained in bed, took holy
communion; that after the mass, Father Garcia talked to Encarnacion
Neyra and advised reconciliation between the two sisters,
Encarnacion and Trinidad Neyra. Encarnacion accepted said advise
and, at about noon of the same day (November 1, 1942), sent
Eustaquio Mendoza to fetch her sister Trinidad, who came at about
2:30 that same afternoon; that the two sisters greeted each other in
most affectionate manner, and became reconciled and two had a
long and cordial conversation, in the course of which they also talked
about the properties left by their father and their litigations which had
reached the Court of Appeals for the City of Manila, the instant case
being the second, and they agreed to have the latter dismissed, on
the condition that the property involved therein should be given
exclusively to Trinidad Neyra, that the latter should waive her share in
the rents of said property collected by Encarnacion, and the Trinidad
had no more indebtedness to Encarnacion. They also agreed to send
for Atty. Alejandro M. Panis, to prepare the necessary document
embodying the said agreement, but Attorney Panis could come only
in the afternoon of the following day, November 2, 1942, when
Encarnacion gave him instructions for the preparation of the
document embodying their agreement, and other instructions for the
preparation of her last will and testament; that Attorney Panis
prepared said document of compromise as well as the new will and
testament, naming Trinidad Neyra and Eustaquio Mendoza
beneficiaries therein, pursuant to Encarnacion's express instructions,
and the two documents were prepared, in duplicate, and were ready
for signature, since the morning of November 3, 1942; that in the
afternoon of that day, of compromise and last will and testament to
Encarnacion Neyra, slowly and in a loud voice, in the presence of
Father Teodoro Garcia, Dr. Moises B. Abad, Dr. Eladio Aldecoa,
Trinidad Neyra, and others, after which he asked her if their terms were
in accordance with her wishes, or if she wanted any change made in
said documents; that Encarnacion Neyra did not suggest any change,
and asked for the pad and the two documents, and, with the help of
a son of Trinidad, placed her thumbmark at the foot of each one of
the two documents, in duplicate, on her bed in the sala, in the
presence of attesting witnesses, Dr. Moises B. Abad, Dr. Eladio R.
Aldecoa and Atty. Alejandro M. Panis, after which said witnesses
signed at the foot of the will, in the presence of Encarnacion Neyra,
and of each other. The agreement was also signed by Trinidad Neyra,
as party, and by Dr. M. B. Abad and Eustaquio Mendoza, a protege,
as witnesses.
Father Teodoro Garcia was also present at the signing of the two
documents, at the request of Encarnacion Neyra.
The foregoing facts have been established by the witnesses presented
by Trinidad Neyra, who are all trustworthy men, and who had
absolutely no interest in the final outcome of this case. Two of them
are ministers of the Gospel, while three of the attesting witnesses are
professional men of irreproachable character, who had known and
seen and actually talked to the testatrix.
Petitioner Teodora Neyra, half sister of Encarnacion, and
her young daughter Ceferina de la Cruz, and Presentacion Blanco,
daughter of petitioner Maria Jacobo Vda. de Blanco, substantially
corroborated the testimony of the witnesses presented by Trinidad
Neyra, with reference to the signing of documents, in the bedroom of
Encarnacion Neyra, in the afternoon of November 3, 1942.
Teodora Neyra, Presentacion Blanco and Ceferina de la Cruz testified,
however, that when the thumbmark of Encarnacion Neyra was affixed
to the agreement in question, dated November 3, 1942, she was
49

sleeping on her bed in the sala; and that the attesting witnesses were
not present, as they were in the caida.
But Ceferina de la Cruz also stated that the attesting witnesses signed
the documents thumbmarked by Encarnacion Neyra, in the sala near
her bed, thus contradicting herself and Teodora Neyra and
Presentacion Blanco.
Strange to say, Teodora Neyra, Presentacion Blanco and Ceferina de
la Cruz also testified that Encarnacion Neyra's, thumbmark was affixed
to the will, only in the morning of November 4, 1942, by Trinidad Neyra
and one Ildefonso del Barrio, when Encarnacion was already dead.
The testimony of Dr. Dionisio Parulan, alleged medical expert, as to the
nature of effects of Addison's disease, is absolutely unreliable. He had
never seen or talked to the testatrix Encarnacion Neyra.
According to medical authorities, persons suffering from Addison's
disease often live as long as ten (10) years, while others die after a few
weeks only, and that as the disease progresses, asthenia sets in, and
from 80 per cent to 90 per cent of the patients develop tuberculosis,
and complications of the heart also appear. (Cecil, Textbook of
Medicine, 3d ed., 1935, pp. 1250-1253; McCrae, Osler's Modern
Medicine, 3d ed., Vol. V, pp. 272-279.)
And it has been conclusively shown that Encarnacion Neyra died on
November 4, 1942, due to a heart attack, at the age of 48, after an
illness of about two (2) years.
In connection with mental capacity, in several cases, this court has
considered the testimony of witnesses, who had known and talked to
the testators, more trustworthy than the testimony of the alleged
medical experts.
Insomnia, in spite of the testimony of two doctors, who testified for the
opponents to the probate of a will, to the effect that it tended to
destroy mental capacity, was held not to effect the full possession of
mental faculties deemed necessary and sufficient for its execution.
(Caguioa vs. Calderon, 20 Phil., 400.) The testatrix was held to have
been compos mentis, in spite of the physician's testimony to the
contrary, to the effect that she was very weak, being in the third or last
stage of tuberculosis. (Yap Tua vs. Yap Ca Kuan and Yap Ca Llu, 27
Phil., 579.) The testimony of the attending physician that the deceased
was suffering from diabetes and had been in a comatose condition
for several days, prior to his death, was held not sufficient to establish
testamentary incapacity, in view of the positive statement of several
credible witnesses that he was conscious and able to understand
what was said to him and to communicate his desires.
(Samson vs. Corrales Tan Quintin, 44 Phil., 573.) Where the mind of the
testator is in perfectly sound condition, neither old age, nor ill health,
nor the fact that somebody had to guide his hand in order that he
might sign, is sufficient to invalidate his will (Amata and
Almojuelavs. Tablizo, 48 Phil., 485.)
Where it appears that a few hours and also a few days after the
execution of the will, the testator intelligently and intelligibly conversed
with other persons, although lying down and unable to move or stand
up unassisted, but could still effect the sale of property belonging to
him, these circumstances show that the testator was in a perfectly
sound mental condition at the time of the execution of the will.
(Amata and Almojuela vs. Tablizo, 48 Phil., 485.)
Presentacion Blanco, in the course of her cross-examination, frankly
admitted that, in the morning and also at about 6 o'clock in he
afternoon of November 3, 1942, Encarnacion Neyra talked to her that
they understood each other clearly, thus showing that the testatrix
was really of sound mind, at the time of signing and execution of the
agreement and will in question.
It may, therefore, be reasonably concluded that the mental faculties
of persons suffering from Addison's disease, like the testatrix in this
case, remain unimpaired, partly due to the fact that, on account of
the sleep they enjoy, they necessarily receive the benefit of physical
and mental rest. And that like patients suffering from tuberculosis,
insomnia or diabetes, they preserve their mental faculties until the
moments of their death.
Judging by the authorities above cited, the logical conclusion is that
Encarnacion Neyra was of sound mind and possessed the necessary
testamentary and mental capacity, at the time of the execution of
the agreement and will, dated November 3, 1942.
The contention that the attesting witnesses were not present, at the
time Encarnacion Neyra thumbmarked the agreement and will in
question, on her bed, in the sala of the house, as they were allegedly
in the caida, is untenable. It has been fully shown that said witnesses
were present, at the time of the signing and execution of the
agreement and will in question, in the sala, where the testatrix was
lying on her bed. The true test is not whether they actually saw each
other at the time of the signing of the documents, but whether they
might have seen each other sign, had they chosen to do so; and the
attesting witnesses actually saw it all in this case. (Jaboneta vs. Gustilo,
5 Phil., 541.) And the thumbmark placed by the testatrix on the
agreement and will in question is equivalent to her signature. (Yap
Tua vs. Yap Ca Kuan and Yap Ca Llu, 27 Phil., 579.)
Teodora Neyra and her principal witnesses are all interested parties, as
they are children of legatees named in the will, dated September 14,
1939, but eliminated from the will, dated November 3, 1942.
Furthermore, the testimony of Teodora Neyra and her witnesses, to the
effect that there could have been no reconciliation between the two
sisters, and that the thumbmark of Encarnacion Neyra was affixed to
the documents embodying the agreement, while she was sleeping,
on November 3, 1942, in their presence; and that her thumbmark was
affixed to the will in question, when she was already dead, in the
morning of November 4, 1942, within their view, is absolutely devoid of
any semblance of truth. Said testimony is contrary to common sense. It
violates all sense of proportion. Teodora Neyra and her witnesses
could not have told the truth; they have testified to deliberate
falsefoods; and they are, therefore, absolutely unworthy of belief. And
to the evidence of the petitioners is completely applicable the legal
aphorism falsus in uno, falsus in omnibus. (Gonzales vs. Mauricio, 53
Phil., 728, 735.)
To show the alleged improbability of reconciliation, and the execution
of the two documents, dated November 3, 1942, petitioners have
erroneously placed great emphasis on the fact that, up to October
31, 1942, the two sisters Encarnacion and Trinidad Neyra were bitter
enemies. They were banking evidently on the common belief that the
hatred of relatives is the most violent. Terrible indeed are the feuds of
relatives and difficult the reconciliation; and yet not impossible. They
had forgotten that Encarnacion Neyra was a religious woman
instructed in the ancient virtues of the Christian faith, and hope and
charity, and that to forgive is a divine attribute. They had also
forgotten that there could be no more sublime love than that
embalmed in tears, as in the case of a reconciliation.
It was most natural that there should have been reconciliation
between the two sisters, Encarnacion and Trinidad Neyra, as the latter
is the nearest relative of the former, her only sister of the whole blood.
The approach of imminent death must have evoked in her the
tenderest recollections of family life. And believing perhaps that her
little triumphs had not always brought her happiness, and that she had
always been just to her sister, who had been demanding insistently
what was her due, Encarnacion finally decided upon reconciliation,
as she did not want to go to her eternal rest, with hatred in her heart
or wrath upon her head. It was, therefore, most logical that
Encarnacion should make Trinidad the benificiary of her generosity,
under her last will and testament, and end all her troubles with her, by
50

executing said agreement, and thus depart in perfect peace from the
scenes of her earthly labors.
It having been shown that the said compromise or agreement had
been legally signed and executed by Encarnacion Neyra on
November 3, 1942, in the presence of credible and trustworthy
witnesses, and that she was compos mentis and possessed the
necessary testamentary and mental capacity of the time; the petition
for the reconsideration filed by Atty. Lucio Javillonar, on November 23,
1942, on behalf of a client, Encarnacion Neyra, who had been dead
since November 4, 1942, and some of her relatives, who have
appeared, in accordance with the provisions of section 17 of Rule 3 of
the Rules of Court, is hereby denied; and the decision of the Court of
Appeals for Manila, dated November 10, 1942, dismissing the appeal,
is hereby re-affirmed, without costs. So ordered.
Ozaeta, Perfecto, Hilado, and Bengzon, JJ., concur.
G.R. No. L-47428 April 8, 1941
Testamentaria de la finada Perpetua Albornoz Viuda de Soriano.
ALFONSO ALBORNOZ, solicitante-apelada,
vs.
DOLORES ALBORNOZ y JOSE ALBORNOZ, opositores-apelantes.
Sres. Santos y Solidum y D. Emilio L. Medina en representacion de los
apelantes.
Sres. Diaz y Lazaro en representacion de los apelados.
DIAZ, J.:
Estos dos expedientes nos fueron elevados en virtud de la apelacion
de algunas de las partes interesadas contra la sentencia del Juzgado
de Primera Instancia de Ilocos Norte, por tratarse en ambos de una
legalizacion de dos alegados testamentos y codicilo en los que las
propiedades de que la autora de los mismos trata de disponer, valen
mucho mas de P50,000.
En el expediente C.S-R.G. No. 47428 fue promovente en primera
instancia Alfonso Albornoz (Expediente No. 4054 del Juzgado de
Primera Instancia de Ilocos Norte), y en el expediente C.S-R. G. No.
47429 (Expediente No. 4017 del mismo Juzgado), la promovente fue
Dolores Albornoz. Los dos osn hermanos de la hoy finada Perpetua
albornoz Vda. de Soriano que dijeron en sus respectivos casos, ser la
otorgante de los testamentos y codicilo cuya legalizacion solicitaron.
El Juzgado de Ilocos Norte que conocio de los dos expedientes,
ordeno depues de los tramites de rigor, la leglizacion de los
documentos que Dolores Albornoz habia presentado como
testamento y codicilo de la mencionada finada, y son los que obran
hoy en autos como Exhibits A y B (Expediente No. 4017 del Juzgado
de Primera Instancia de Ilocos Norte y C.S.-R.G. No. 47429); y rechazo
el que presentara para el mismo fin el promovente del expediente
No. 4054 que corresponde al de este Tribunal C.S.-R.G. No. 47428,
Alfonso Albornoz. Esto hizo el Juzgado en una sola decision, a
instancia de las partes interesadas.
En el primer expediente (Expdiente No. 4017; C.S.-R.G. No. 47429), fue
opositor Alfonso Albornoz y con el hicieron causa comun Amador,
Alicia, Clara y los hermanos de estos excepto Jose, apellidados todos
Albornoz; y en el otro expediente, o sea, No. 4054 (C. S.-R. G. No.
47428) fueron opositores Dolores Albornoz y Jose Albornoz.
Alfonso Albornoz y los que hicieron causa comun con el apelaron de
la decision dictada por el Juzgado en ambos expedientes; y en esta
instancia arguyen ahora que aquel incurrio en los errores que
apuntan en sus alegatos, sustancialmente en estos terminos:
El error de haber declrado que Perpetua Albornoz viuda de Soriano
no tenia capacidad mental el 24 de Junio de 1936, para otorgar el
testamento de dicha fecha, Exhibit A, que presentaron para su
legalizacion en el expediente No. 40504 (C.S.-R.G. No. 47428).
El de haber dejado de dar credito al testimonio de los testigos
instrumentales del referido testamento de 24 de Junio de 1936.
El de haber dejado de declarar, sin tener en cuenta la clausula de
atestiguamiento del testamento que alegaron ser de la finada
Perpetua Albornoz viuda de Soriano, que el mismo fue otorgado
debidamente; y el de haber dejado de declarar al mismo tiempo que
Dolores Albornoz y Jose Albornoz que lo impugnaron, no presentaron
pruebas concluyentes para sostener su contencion de que no era de
dicha finada el indicado testamento.
El de haber permitido la legalizacion como testamento de la finada, y
como codicilo del mismo, los documentos que como tales fueron
presentados por Dolores Albornoz en el expediente No. 4017, C.S.-R.G.
No. 47429; y finalmente,
El de haber denegado la mocion que presentaron para pedir la
celebracion de una nueva vista.
Los apelantes no impugnaron ni siquiera hicieron reparo a;gimp em
cuanto a la autenticidad y debido otorgamiento como testamento y
codicilo, de los Exhibits A y B en el expediente No. 4017, C.S.-R.G. No.
47429; y Dolores Albornoz probo cumplidamente por otra parte, que
la finada Perpetua A. Vda. de Soriano otorgo los mismos el 25 de abril
de 1934 y 19 de junio de 1936, respectivamente, con entra libertad,
estando ella en el leno goce de sus facultads mentales y en
presencia de los testigos cuyos nombres y firmas se mencionan y
aparecen en las clausulas de atestiguamiento de los aludidos
documentos.
La finada fallecio el 25 de junio de 1936, al rededor de las 8 de la
maana, en el municipio de Laoag de la Provincia de Ilocos Norte,
teniendo ella entonces 68 aos de edad. Pedecio de diarrea y
enteritis complicaciones de miocarditis, desde el 3 de junio de 1936
hasta el momento de su fallecimiento el cual no debio mas que a
dichas causas. Su debilidad fue acentuandose de dia en dia desde
poco despues de haber caido enferma, habiendo contribuido a esto
la absoluta dieta liquida a que habia sido sometida, mas su ya
bastante avanzada edad. La postracion que le sobrevino mas tarde
fue dal que el 22 de los expresados mes y ao ya deliraba y apenas
podia moverse y hablar; y si hablaba, sus palabras eran entonces
incoherentes. El 23 perdio completamente el habla, y aunque tenia
abiertos los ajos, ya no se movian, notandose que tampoco veian; y
nada de lo que le redeaba le causaba ya impresion o reaccion.
Continuo asi hasta sobrevenrle la muerte. En estas circunstancias,
clore esta que era fisicamente imposible que otorgase como trataron
de probar los apelantes, su alegado testamento Exhibit A en el
expediente No. 4054, (C.S.-R.G. No. 47428). Hay que tener presente
que dicho documento muestra en su faz, y asi la declararon ademas
los testigos de los apelantes, que fue preparado y firmado por la
finada y por los testigos que presentaron, llamados Antonio
Quirolgico, Adriano Ruiz e Isaac S. Pedro a las 6 a.m. del dia 24 de
junio de 1936.
La finada no era pobre y no carecia de medios para procurarse los
servicios de domesticos y el cuidado de parients y amigos mas o
menos interesados en su salud; no vivia sola ni se hallaba sola en su
casa desde que se enfermo, y menos en el dia mencionado, siendo
esto tanto mas cierto cuanto que el mismo Alfonso Albornoz,
diclarando en la vista de los dos expedientes, manifesto que su
hermana Dolores Albornoz y la amiga de esta llamada Cunegunda
pe Benito tuvieron especial ciudado de que no la viese; y de hecho,
la finada tenia a su servicio nueve criados y nueve criadas. Si esto es
cierto, es indudablemente cierto tambien, como lo probo Dolores
Albornos, que la finada nunca estuvo sin compaia en su habitacion
durante su enfermedad, especialement, durante sus ultimos dias,
51

porque aquella requeria ciudado continuo. Por consiguiente, es
increible queu Adriano Ruiz y los otros testigos instrumentales del
alegado testamento de 24 de junio, pudiesen entrar, no ya dentro de
la habitacion de la finada pero siquiera dentro de su casa, sin ser
vistos ni notados por nadie. El otorgamiento del testamento de que se
trata no pudo hacerse en un corto instante; debio requerir algun
teimpo, teimpo bastante para que los de la casa pudiesen darse
cuenta de que habia extraos en la misma, en una hora en que no es
costumbre visitar. Aadase a todo esto que el experto caligrafo
Arcadio Laperal que hizo un estudio detenido de las firmas "PERPETUA
A. VDA. DE SORIANO" que aparecen en el Exhibit A obrante en el
expediente No. 4054, que es el mismo Exhibit 1 que obra en el
expediente No. 4017, comparando las mismas conlas autenticas de la
finada y las que aparecen en el testamento y en el codicilo
legalizados por el Juzgado a quo, que no fueron discutidas, expreso
la opinion de que unas y otras no pudieron haberse exrito por una
misma persona, ayudada o no poor otra, porque difieren en todos los
respectos. Creemos que la opinion del mencionado experto esta
fundada en los hechos, sobre todo teniendo en cuenta que la finada
ya no podia ver bien, como asi lo dijo uno de los testigos del
testamento que se discute, y sin embargo, las firmas que se le
atribuyen estan escritas con mucha simetria, rectamente, y
guardando las letras entre si, casi la misma distancia. Aunque la
finada hubiese sido ayudada por otro para estampar dichas firmas,
no hubieran salido tan bien como aparecen en el expresado
documento.
La mocion para una nueva vista que los apelantes presentaron y fue
denegada por el Juzgado a quo, no alega ningun nuevo hecho. La
presentaron simplemente pro forma, para que pueden revisarse los
hechos.
Por todo lo expuesto, y siendo manifiestamente infundados los errores
atribuidos por los apelantes al Juzgado a quo, por la presente,
confirmamos en todas sus partes la decision apelada, con las costas
a dichos apelantes, en ambas instancias. Asi se ordena.
Avancea, Pres. Imperial, Laurel, y Horrilleno, MM., estan conformes.
Moran, M., no tomo parte.
ARTICLE 800
TORRES VS. LOPEZ (SEE ART 799)
RAMIREZ VS RAMIREZ
G.R. No. L-18498 March 30, 1967
TESTATE ESTATE OF VITO BORROMEO. JOSE H. JUNQUERA, petitioner-
appellee,
vs.
CRISPIN BORROMEO, ET AL., oppositors-appellants.
REPUBLIC OF THE PHILIPPINES, intervenor-appellant.
Benjamin A. Rallon for oppositor-appellant Fortunato Borromeo.
Crispen Baizas and Associates for heirs oppositors-appellants Tomas
Borromeo and Amelia Borromeo.
Office of the Solicitor General for intervenor oppositor-appellant
Republic.
Miguel Cuenco and Fernando S. Ruiz for heirs oppositors-appellants
Crispin Borromeo, Teofilo Borromeo, et al.
Filiberto Leonardo for petitioner-appellee.
DIZON, J.:
Vito Borromeo, a widower and permanent resident of the City of
Cebu, died on March 13, 1952, in Paraaque, Rizal, at the age of 88
years, without forced heirs but leaving extensive properties in the
province of Cebu.
On April 19 of the same year, Jose H. Junquera, filed with the Court of
First Instance of said province a petition for the probate of a one page
document as the last will left by said deceased, devising all his
properties to Tomas, Fortunato and Amelia, all surnamed Borromeo, in
equal and undivided shares, and designating Junquera as executor
thereof (Special Proceedings No. 916-R). The document now in the
record as Exhibit "A" was dated May 17, 1946, drafted in Spanish,
and allegedly signed, and thumbmarked by said deceased, in the
presence of Dr. Cornelio G. Gandionco, Eusebio Cabiluna and
Filiberto Leonardo as attesting witnesses. On June 14, 1952, the
probate court appointed Junquera as special administrator of the
estate.
On November 14 of the same year, Teofilo Borromeo filed an
opposition to the probate of the will based on the following grounds:
(1) that the formalities required by law had not been complied with;
(2) that the testator was mentally incapable of making a will at the
time of its execution; (3) that the will was procured by undue and
improper influence, on the part of the beneficiaries and/or some other
person; (4) that the signature of the testator was procured by fraud;
and (5) that the testator acted by mistake or did not intend the
instrument he signed to be his will at the time he affixed his signature
thereto.
Upon motion of the abovenamed oppositor, on June 9, 1953, the
Court removed Junquera as special administrator and appointed Dr.
Patricio Beltran in his place.
On November 27, 1953, Vitaliana Borromeo, a niece of the deceased,
filed her own opposition to the probate of the will, on the ground that
the signature "Vito Borromeo" appearing thereon was a forgery. Other
oppositions were subsequently filed by Patrocinio Borromeo de
Tabotabo (her opposition was later withdrawn), Lilia Morre de
Tabotabo, Lamberto Morre, Patricia Morre de Ranario, Aurora Morre
de Borromeo, Ramon Ocampo, Isagani Morre and Rosario Morre,
invoking substantially the same grounds mentioned heretofore.
Meanwhile, Tomas, Amelia and Fortunato Borromeo, manifestly on
behalf of the "Cebu Arcade Company, T. L. Borromeo y Cia.", a duly
organized partnership controlled by them, filed a motion to exclude
from the inventory of the Estate previously filed by the new special
administrator, thirteen parcels of land situated in the City of Cebu with
a total area of 2,148 square meters, alleging that during his lifetime the
deceased testator had sold said lots to them, as evidenced by the
document now in the record as Exhibit F-1 executed on May 17, 1945,
confirming the alleged previous sale. After due hearing, the court, in
its order of July 16, 1954, denied the motion for exclusion, ruling that
movants' remedy was to file a separateaccion reivindicatoria against
the administrator.
On October 28, 1955, the Republic of the Philippines filed a motion for
leave to intervene and join the oppositors in contesting the probate of
the will, on the ground that, should the estate be adjudicated the
latter by intestacy, it stood to collect a considerable amount by way
of estate and inheritance taxes. In its order of December 10 of the
same year, the Court allowed the intervention.
After a prolonged trial, on May 28, 1960, the Court rendered a
decision denying the probate of the will and declaring itself without
jurisdiction to pass upon the question of ownership over the thirteen
lots which the Cebu Arcade etc. claimed as its own. All the parties
appealed the proponents of the will from the portion of the
decision denying probate, and the oppositors and the Republic of the
Philippines, from that portion thereof where the court refused to
decide the question of ownership of the thirteen lots already
mentioned.
The proponents of the disputed will, mainly with the testimony of the
three attesting witnesses, Cornelio Gandionco, Filiberto Leonardo and
Eusebio Cabiluna, sought to prove the following facts:
52

In the morning of May 17, 1945, Tomas Borromeo, complying with the
request of Vito Borromeo, went to the house of Atty. Filiberto Leonardo
to request him to be a witness at the execution of the latter's last will.
Dr. Cornelio Gandionco, who at the time happened to be in the
house of Leonardo, was likewise requested to act as such. Together,
the three went to the residence of Vito Borromeo at Ramos Street,
Cebu City. Upon their arrival the third witness, Eusebio Cabiluna, who
was living on the ground floor of the house, was asked to come
upstairs. Thereafter, in their presence, Vito Borromeo executed first, the
document Exhibit "F" (deed of confirmation of an alleged previous sale
to Cebu Arcade Company, T. L. Borromeo y Cia.) witnessed by
Gandionco and Cabiluna. Later, Vito Borromeo, being of sound and
disposing mind, and without pressure or influence exerted on him,
dictated the substance of his will to Tomas Borromeo, who in turn
typewrote it in proper legal language. The document was then read
by Vito Borromeo, who later signed and thumbmarked it (Exhibit "A")
and carbon copies thereof (Exhibits "E" and "K") in the presence of the
attesting witnesses, who, in turn, signed the will and its copies in the
presence of Vito Borromeo and of each other.
Proponents also placed the Rev. Fr. Julio Corres, a Spanish Catholic
priest who was the confessor of Vito Borromeo from 1942 to 1946, the
Rev. Fr. Sergio Alfafara, who was his confessor from 1946 to 1947, and
Vicenta Maacap, a mid-wife who lived in the testator's house and
had served him from May 1945 up to his death on March 30, 1952 on
the witness stand. The gist of their testimony is to the effect that at the
time of the execution of the will, Vito Borromeo was still strong and
could move around freely with the aid of a cane; that he was still
mentally alert and was a man of strong will; that his right hand was
unimpaired and he could write with it unaided; that as a matter of
fact according to Vicenta Maacap he still wrote personal
letters to Tomas Borromeo, could eat by himself and even played the
piano.
On the other hand, the oppositors presented several witnesses who
testified that the signatures purporting to be those of Vito Borromeo on
the document Exhibit "A" and its copies were forgeries; that they were
too good and too perfect signatures and, therefore, quite impossible
for the deceased an ailing man already 82 years old on May 17,
1945 to write; that he was found "positive for bacillus leprosy" by Dr.
Antonio Garcia as early as 1926 or 1927, having been treated for it
consistently by injections of chaulmoogra oil administered by Dr. Max
Borromeo and Dr. Cornelio Gandionco; that Vito Borromeo's usual
signatures during his better days had always been characterized by
certain flourishes, technically called "rubric"; that Vito Borromeo had
also reared and educated two of the oppositors, Crispin Borromeo
and the late Teofilo Borromeo and there was no conceivable reason
why they were left out in the will, if any such will had really been made
by him knowingly; that the testamentary witness Cornelio Gandionco,
is a nephew of the other witness, Filiberto Leonardo, and was the
fiance of Angeles Borromeo, a sister of Tomas Borromeo, one of the
instituted heirs; that the third testamentary witness, Eusebio Cabiluna is
the real father of Fortunato Borromeo, another instituted heir, who
admittedly grew up and was reared by Vito Borromeo and his wife
Juliana Evangelista since he was barely three months; that Amelia
Borromeo, the third instituted heir, is a younger sister of Tomas
Borromeo and dependent upon him; that on May 17, 1945, the
deceased's leprosy was so far advanced that the fingers of his right
hand were already hardened and atrophied, this making it difficult, if
not impossible, for him to write; and that on the same date, his sense
of hearing and his eyesight had been considerably impaired, his eyes
being always watery due to the progress of his leprosy.
The oppositors also presented Felipe Logan of the National Bureau of
Investigation and Jose G. Villanueva, as handwriting experts, who
testified, after examining the supposed signatures of the deceased in
Exhibit "A" and comparing them with his accepted standard
signatures, that the questioned signatures were forgeries. The
proponents, however, presented their own handwriting expert, Martin
Ramos, who testified to the contrary.
The trial court refused to believe the testimony of the attesting
witnesses and, as a result, denied the petition for probate, because, in
its opinion, they appeared not to be "wholly disinterested persons" and
because of the serious discrepancies in their testimonies with respect
to the number of copies made of the disputed document. The court
also found that the physical condition of the deceased at the time of
the execution of the questioned document was such that it was highly
improbable, if not impossible, for him to have affixed his signatures on
the documents Exhibits A, E and K in the spontaneous and excellent
manner they appear to have been written. Thus, the court was also
led to believe the testimony of the handwriting experts for oppositors,
adverse to the genuineness of the signatures of Vito Borromeo on
the questioned document more than that of the handwriting expert
presented by the proponents of the will.
It seems clear, therefore, that the main issue to be decided in the
present appeal is whether or not the evidence of record is sufficient to
prove the due execution of the will in question.1wph1.t
It must be conceded that in this jurisdiction, the subscribing witnesses
to a contested will are regarded as the best witnesses in connection
with its due execution. It is similarly true, however, that to deserve full
credit, their test, testimony must be reasonable and unbiased, and
that, as in the case of any other witness, their testimony may be
overcome by any competent evidence direct or circumstantial
(Board, etc. vs. Shasser, 10 Kan. 585, 168 Pac. 836 [1917]).
It is also an appellate practice of long standing in this jurisdiction to
accord great weight to the findings of fact made by the trial court
and not to disturb them unless said court had failed to consider
material facts and circumstances or had given undue weight to, or
misconstrued the testimony of particular witnesses, the reason for this
being that the trial judge had full opportunity to hear and observe the
conduct and demeanor of the witnesses while testifying and was
consequently in a better position than the reviewing court to
determine the question of their credibility. While this is not applicable
to the present case because His Honor, the judge who penned the
appealed decision was not the same judge before whom the
evidence of the parties was presented, it must be stated that, judging
from the carefully written decision under review, it was only after a
thorough study of the record that His Honor arrived at the conclusion
that the subscribing witnesses do not appear to be wholly
disinterested persons.
On the matter of the number of copies made of the questioned will
allegedly signed by the testator and the three subscribing witnesses,
His Honor found that Cabiluna was very uncertain and confused; that
a certain stage of his examination, he said that only two copies of the
will were prepared the original and one carbon copy while at
another stage he affirmed that he did not know whether or not there
was a duplicate and that all he could say was that he had affixed his
signature three times (Transcript, Marquiala, August 22, 1958, pp. 49-
50). In truth, however, he really signed six (6) times twice on the
original and twice on each of the two copies. Adding confusion to the
situation is the answer he gave when he was asked if Vito Borromeo
also signed the carbon copy, to which his answer was "I did not see"
(Idem., p. 50).
On the other hand, the other subscribing witness, Atty. Filiberto
Leonardo, testified categorically that there were only the original and
one carbon copy of the will and that the testator and all the
subscribing witnesses signed both (Transcript, Marquiala, December
23, 1953, pp. 167, 210, and 218). However, the naked and highly
disturbing fact is that, contrary to what is inferable from the vacillating
testimony of Cabiluna and the categorical assertion of Atty.
Leonardo, the proponents of the questioned will themselves
presented three copies of said will; the original, a carbon duplicate
copy and a carbon triplicate copy, now in the record as Exhibits A, E
and K, respectively.
While it is true that the testimony of these subscribing witnesses was
given around eight years after the alleged execution of the
questioned will, still we believe that the transaction in which they claim
to have taken an important part is of such character and importance
53

that it can not be a very easy matter for anyone of them to have a
hazy recollection of the number of copies signed by the testator and
by them. Stranger still would it be for them to say something in open
contradiction with the reality on the matter. If, as may be clearly
deduced from their testimony Cabiluna and Leonardo's there
was only the original and one copy signed by the testator and the
subscribing witnesses, why is it that three original and two copies
were really in existence and were produced in court during the trial?
In the case of the third subscribing witness, Dr. Cornelio Gandionco,
the imputation was made by two witnesses, Dr. Teofilo Borromeo and
Judge Crispin Borromeo, that he was the fiance of Angeles Borromeo,
sister of Tomas Borromeo, who is one of the three heirs instituted in the
questioned will, evidently to show that he is not a completely
disinterested witness. The evidence to this effect appears to have
remained unimpeached, although the proponents of the will could
have done it by calling on Dr. Gandionco himself or on Angeles
Borromeo to deny the imputation.
Moreover, the evidence also disclose that Dr. Gandionco was the
uncle of the other subscribing witness, Atty. Leonardo, and that, in
fact, they were living together at the time of the alleged execution of
the will. This circumstance apparently trivial can not be taken
lightly because in view of appellee's claim that Angeles Borromeo was
the fiance of Dr. Gandionco, it would not be unreasonable to
entertain the suspicion that both subscribing witnesses were not wholly
disinterested. Material to this point is the fact established by the
evidence that Atty. Leonardo was the notary public before whom the
document Exhibit 4-A which purports to convey to a partnership
controlled by the heirs instituted in the questioned will thirteen parcels
of land situated in the commercial center of Cebu City was
supposedly acknowledged by the testator on the same date May 17,
1945.
In the light of the foregoing, We can not see our way clear to holding
that the trial court erred in refusing to give full credit to the testimony
of the three subscribing witnesses.
It has also been held that the condition and physical appearance of
a questioned document constitute a valuable factor which, if
correctly evaluated in the light of surrounding circumstances, may
help in determining whether it is genuine or forged. Subscribing
witnesses may forget or exaggerate what they really know, saw, heard
or did; they may be biased and, therefore, tell only half truths to
mislead the court or favor one party to the prejudice of the other. This
can not be said of the condition and physical appearance of the
questioned document itself. Both, albeit silently, will reveal the naked
truth, hiding nothing, forgetting nothing, and exaggerating nothing.
For this reason, independently of the conflicting opinions expressed by
the handwriting experts called to the witness stand by the parties, we
have carefully examined and considered the physical appearance
and condition of the original and two copies of the questioned will
found in the record particularly the signatures attributed to the
testator and We have come to the conclusion that the latter could
not have been written by him.
Upon the face of the original and two copies of the contested will
(Exhibits A, E and K) appear a total of six alleged signatures of the
testator. They are all well written along a practically straight line,
without any visible sign of tremor or lack of firmness in the hand that
wrote them. In fact, in the respects just adverted to, they appear
better written than the unquestioned signatures, of attesting witnesses
Gandionco and Cabiluna, inspite of the fact that on the date of the
alleged execution of the will (May 17, 1945) the testator was
considerably older and in a much poorer physical condition than
they. According to the evidence, the testator was then a sick man,
eighty-two years old, with the entire left half of his body paralyzed
since six years before, while the oldest attesting witness (Cabiluna) was
around sixty-five years of age and Leonardo and Gandionco were
only forty-four and forty-five years old respectively, and were all in
good health. Despite the obviously very poor physical condition of the
testator, Leonardo claims that he signed the alleged will unaided,
writing his name thereon slowly but continuously or without
interruption, and that, on the same occasion, he signed his name
several times not only on the original of the will and its copies but also
on the original and several copies of the alleged confirmatory sale
Exhibit F-1 and on his residence certificate. Considering all the
attendant circumstances, we agree with the lower court that Vito
Borromeo could not have written the questioned signatures.
In view of what has been said heretofore, We find it unnecessary to
examine and consider in detail the conflicting testimony of the
handwriting experts presented by the parties: Martin Ramos by the
proponents of the will, to sustain the genuineness of the questioned
signatures, and Felipe Logan and Jose G. Villanueva, by the
oppositors, to prove that said signatures are forgeries. We shall limit
ourselves in this connection to quoting with approval the following
portion of the appealed decision:
What the Court finds to be a weakness in the conclusions of
Martin Ramos, based on his comparative examination of the
questioned and standard signatures of Vito Borromeo, is his
apparent assumption that all the signatures were made by
Vito Borromeo under equality or similarity of circumstances,
that is, that in all instances Vito Borromeo had normal use of
both of his hands, the right and the left. He failed to take
into account that when Vito Borromeo allegedly affixed
those signatures on May 17, 1945 on Exhibits 'A', 'E', and 'K'
the left portion of his body, including the left hand, was
already paralyzed, and Vito Borromeo was represented to
have written his name alone by himself and unaided.
Maybe, if he was previously apprised of those
circumstances, he would hesitate to make the conclusion
that those flawless signatures reading Vito Borromeo, written
straight and in a form as good as, if not better than, the
signatures of three much younger attesting witnesses, were
positively in the handwriting of the 82-year old, ailing, and
paralytic Vito Borromeo. The Court consequently, finds itself
not disposed to adopt his conclusions, but on the contrary is
inclined toward the views of the other two experts witnesses,
Felipe Logan and Jose G. Villanueva.
As stated at the outset, the contested will is claimed to have been
signed and thumbmarked by the testator. An examination of the
thumbmarks, however, readily shows that, as the lower court found,
the same are "glaringly far from being distinct and clear"; that "they
are not a possible means of identification" nor can "they possibly be
identified to be those of Vito Borromeo, or for that matter, of any other
person whatsoever". It is, therefore, obvious, that they are of little use in
the resolution of the issue before Us.
We shall now consider the appeal, taken by the oppositors and the
Republic of the Philippines from that portion of the decision where the
lower court declined to decide with finality the question of who owns
the thirteen parcels of land subject-matter of the confirmatory sale
Exhibit F-1 and whether or not they should be included in or excluded
from the inventory of properties of the Estate of the deceased Vito
Borromeo.
It appears that on February 11, 1954 Tomas, Amelia, and Fortunato
Borromeo, through counsel, filed a motion for the exclusion from the
inventory of the Estate of the thirteen lots therein mentioned, with a
total area of 2,348 square meters, claiming that the same had been
sold by the deceased Vito Borromeo during his lifetime to the Cebu
Arcade, T. L. Borromeo y Cia. This motion for exclusion was denied by
the lower court in its order of July 16, 1954, and the ruling was
reiterated in the appealed decision "for the same reasons and
considerations" upon which it rejected the probate of the will. The
ruling on the matter, however, was expressly made provisional in
nature.
We believe, and so hold, that the resolution of the lower court on this
matter is correct because said court, acting in its capacity as a
probate court, had no jurisdiction to determine with finality the
54

question of ownership involved. That such matter must be litigated in a
separate action has been the established jurisprudence in this
jurisdiction (Ongsinco vs. Borja, L-7635, July 25, 1955; Mallari vs. Mallari,
L-4656, February 23, 1953; Garcia vs. Martin, G.R. No. L-9233, June 29,
1957; Cordova vs. Ocampo, 73 Phil. 661; Pascual vs. Pascual, 73 Phil.
561 and others), except where a party merely prays for the inclusion or
exclusion from the inventory of any particular property, in which case
the probate court may pass upon provisionally, the question of
inclusion or exclusion, but without prejudice to its final determination in
an appropriate separate action (Garcia vs. Garcia, 67 Phil. 353;
Marcelino vs. Antonio, 70 Phil. 388; Guinguing vs. Abuton, 48 Phil. 144,
147).
In view of all the foregoing, the decision appealed from is affirmed,
with costs.
Concepcion, C.J., Reyes, J.B.L., Regala, Makalintal, Bengzon, J.P.,
Zaldivar, Sanchez and Castro, JJ., concur.
SAMSON VS CORRALES (ART 799)
CUYUGAN VS BARON (ART 799)
G.R. Nos. L-3272-73 November 29, 1951
MANUEL GONZALES, petitioner-appellant,
vs.
MANOLITA GONZALES DE CARUNGCONG, petitioner-appellee;
ALEJANDRO GONZALES, JR., and JUAN GONZALES, oppositors-
appellants.
Claro M. Recto for petitioner and appellant.
Reyes, Albert, Agcaoili and Raf. L. Arcega for petitioner and appellee.
Emiliano Pamintuan and Felixberto M. Serrano for oppositors and
appellants.
PARAS, C.J.:
On November 27, 1948, Manuel Ibarra Vda. de Gonzales (hereafter to
be referred to as testatrix) died at the age of about seventy-eight
years, leaving five children, namely, Alejandro Gonzales, Leopoldo
Gonzales, Manolita Gonzales de Carungcong, and Juan Gonzales.
The estate left by her is estimated at P150,000.
On December 22, 1948, Manuel Gonzales filed in the Court of First
Instance of Rizal a petition (Special Proceeding No. 837) for the
probate of an alleged will executed by the testatrix on November 16,
1942 (Exhibit BManuel Gonzales), devising to Manuel Gonzales the
greater portion of the estate, without impairing the legitimes of the
other children.
On December 31, 1948, Manolita G. de Carungcong filed in the same
court a petition (Special Proceeding No. 838) for the probate of
another alleged will executed by the testatrix on May 5, 1945 (Exhibit
1Manolita G. Carungcong), leaving to Manolita G. de Carungcong
the greater bulk of the estate, without impairing the legitimes of the
other children.
In his opposition filed on February 16, 1949, Alejandro Gonzales, Jr.
sought the disallowance of the wills executed on November 16, 1942,
and May 5, 1945, on the ground that, assuming their validity, they had
been revoked by the testatrix in an instrument executed by her on
November 18, 1948 (Exhibit 2Alejandro and Juan Gonzales), with the
result that her estate should be distributed as if she died intestate.
With the exception of Leopoldo Gonzales, the children of the testatrix
filed mutual oppositions to one or the other instruments tending to
negative their respective positions.
After a joint hearing, the Court of First Instance of Rizal rendered a
decision with the following dispositive pronouncements:
All facts considered in the light of the evidence presented
and in the manner in which the witnesses testified the court
concludes and holds:
First: That Exhibit B Manuel Gonzales, though
validly executed on November 16, 1942, was revoked by
Exhibit 1Manolita G. Carungcong in accordance with the
provisions of section 623 of the Code of Civil Procedure.
Second: That Exhibit 2 Alejandro and Juan
Gonzales being executed without the knowledge and
testamentary capacity of the testatrix and being contrary to
the provisions of section 618 of the Code of Civil Procedure,
the said document is hereby declared null and void.
Third: That Exhibit 1 Manolita G. Carungcong
having been executed in accordance with law the same is
hereby declared as the true and last will and testament of
the deceased Manuela Ibarra Viuda de Gonzales, and said
will is hereby admitted probate.
From this judgment petitioner Manuel Gonzales and oppositors
Alejandro Gonzales, Jr. and Juan Gonzales have appealed. The
appeal as to Juan Gonzales was dismissed in view of his failure to pay
the proportionate share of the printing cost of the record on appeal.
In the parts material to the present appeal, the will executed by the
testatrix on May 5, 1945, is of the following form and tenor:
IKALABING-DALAWA. Na ang aking HULING BILIN AT
TESTAMENTONG ito ay binubuo ng PITONG (7) dahon o
pagina na may bilang na sunud-sunod at ang bawa't
dahon o pagina ay mayroong tunay kong lagda o firma,
gayon din ang lahat ng aking saksi o testigos.
SA KATUNAYAN ng lahat ng isinasaysay ko dito ay aking
nilagdaan ito dito sa Imus, Kavite, Filipinas ngayong ika-5 ng
Mayo ng taong 1945, na nakaharap dito sa ating paglagda
o pagfirma ang tatlong saksi o testigos. At aking ding
nilagdaan o pinirmahan ang tagilirang kaliwa ng lahat at
bawa't dahon o pagina nitong testamento kong ito sa
harap ng lahat at bawa't isang saksi o testigos at ang lahat
at bawa't isa naman sa kanila ay nangagsilagda o
nagsifirma din dito bilang saksi ko sa harap ko at sa harap
ng lahat at bawa't isa sa kanila, at ganoon din silang mga
saksi ko ay nangag-lagda o nagsi-firma sa tagilirang kaliwa
ng lahat at bawa't isa sa mga dahon o pagina nitong aking
testamento.
(Sgd.) MANUELA Y. VDA. DE GONZALES
MANUELA IBARRA VDA. DE GONZALES
Mga Saksi o Testigos:
(Sgd.) BIENVENIDO DE LOS REYES
(Sgd.) TAHIMIK T. SAYOC
(Sgd.) LUIS GAERLAN
It is contended for the appellants that this will does not contain any
attestation clause; that, assuming the concluding paragraph to be
the attestation clause, it is not valid because it is the act of the testatrix
and not of the witnesses, and because it does not state the number of
sheets or pages of the will.
55

In the very recent case of Valentina Cuevas vs. Pilar Achacoso, G.R.
No. L-3497, decided May, 1951 * we sustained, finding a precedent in
Aldaba vs. Roque, 43 Phil., 378, an attestation clause made by the
testator and forming part of the body of the will. Through Mr. Justice
Bautista, we held:
The clause above quoted is the attestation clause referred
to in the law which, in our opinion, substantially complies
with its requirements. The only apparent anomaly we find is
that it appears to be an attestation made by the testator
himself more than by the instrumental witnesses. This
apparent anomaly, however, is not in our opinion serious nor
substantial as to affect the validity of the will, it appearing
that right under the signature of the testator, there appear
the signatures of the three instrumental witnesses.
Instrumental witnesses, as defined by Escriche in his
Diccionario Razobada de Legislacion, y Jurisprudencia, Vol.
4, p. 1115, is on who takes part in the execution of an
instrument or writing" (in re will of Tan Diuco, 45 Phil., 807,
809). An instrumental witness, therefore, does not merely
attest to the signature of the testator but also to the proper
execution of the will. The fact that the three instrumental
witnesses have signed the will immediately under the
signature of the testator, shows that they have in fact
attested not only to the genuineness of his signature but also
to the due execution of the will as embodied in the
attestation clause.
The attestation clause in question bears also similarity with
the attestation clause in the will involved in Aldaba vs.
Roque, (43 Phil., 378). In that case, the attestation clause
formed part of the body of the will and its recital was made
by the testatrix herself and was signed by her and by the
three instrumental witnesses. In upholding the validity of the
will, the court said:
In reality, it appears that it is the testatrix who makes the
declaration about the points in the last paragraph of the
will; however, as the witnesses, together with the testatrix,
have signed the said declaration, we are of the opinion and
so hold that the words above quoted of the testament
constitute a sufficient compliance with the requirements of
Act No. 2465.
Of course three of the Justices of this Court concurred in the result, "in
the possibility that the testator in the present case, or the person or
persons who prepared the will had relied upon the ruling laid down in
the case of Aldaba vs. Roque, supra, and that it would now be unfair
to reject the present will when in its preparation a ruling of this Court
has been followed." But the case at bar still falls within this view, the will
(Exhibit 1Manolita G. Carongcong) having been executed on May
5, 1945.
The attestation clause contained in the body of the will being thus
valid, the statement in the penultimate paragraph of the will
hereinabove quoted as to the number of sheets or pages used, is
sufficient attestation which may be considered in conjunction with the
last paragraph. It is significant that the law does not require the
attestation to be contained in a single clause. While perfection in the
drafting of a will may be desirable, unsubstantial departure from the
usual forms should be ignored, especially when the authenticity of the
will is not assailed, as in this case.
The result reached in respect of the sufficiency of the will (Exhibit 1
Manolita G. Carongcong) necessarily disposes of the contention of
the appellant Manuel Gonzales that the trial court erred in not
admitting to probate the will (Exhibit BManuel Gonzales), since the
latter will must be considered revoked by the subsequent will (Exhibit
1Manolita G. Carongcong).
What remains to be discussed is the claim of appellant Alejandro
Gonzales, Jr. that the will (Exhibit 1Manolita G. Carongcong) has
been revoked by the testatrix in the instrument of November 18, 1948
(Exhibit 2Alejandro and Juan Gonzales) which provides as follows:
Ako, MANUEL YBARRA VDA. DE GONZALES, may sapat na
gulang at naninirahan sa ciudad ng Rizal, may mahusay at
wastong pag-iisip at mabuting pagtatanda, sa
pamamagitan ng kasulatang ito at bilang huling
kapasiyahan ay sinasaysay ko ito at ipinahahayag sa
ngayon sa alin mang testamento o huling habilin na
napirmahan kong una sa kasulatang ito ay pinawawalan ko
ng saysay at kabuluhang lahat pagkat hindi iyong tunay
kong kalooban ngayon.
Sa katunayan ng lahat ng ito at sa pagkat hindi ako
makalagda ngayon ang pina-kiusapan si Constancio
Padilla na ilagda ako sa kasulatang ito ngayon ika-17 ng
Noviembre ng taong ito 1948, dito sa ciudad ng Pasay.
Appellee Manolita G. de Carungcong, like Manuel Gonzales (as
appellee), contends that the testatrix lacked the testamentary
capacity when she allegedly executed the instrument of revocation,
and their contention was sustained by the trial court. We have
examined the record and found no valid reason for reversing the
finding of said court which had the benefit of observing and hearing
the witnesses testify. Upon the other hand, the following considerations
amply support the appealed decision:.
1. For more than ten years prior to her death, the testatrix had suffered
from hypertension. On November 14, 1948, she had aphasia and on
November 15, 1948, she was taken to the hospital upon advice of the
family physician, Dr. Jose C. Leveriza. In the letter introducing her to
the hospital authorities (Exhibit EManuel Gonzales), Dr. Leveriza
stated that the testatrix was suffering from hypertension and cerebral
thrombosis. Particularly on November 18, 1948, when the alleged
instrument of revocation was executed by her, the testatrix was in a
comatose and unconscious state and could not talk or understand.
The following is the testimony of Dr. Leveriza portraying the physical
condition of the testatrix up to November 18, 1948:
P. Y que hizo usted cuando Doa Manuela I. Vda. de
Gonzales ya estaba en el hospital?R. Me fui alla para
examinarla.
P. Cual era el resultado de su examen?R. Cuando fue
al hospital a examinarla en el primer dia via que la aphasia
se agravo, o sea que ha perdido el poder de hablar
inteligentemente; tambien encontre que estaba
inconsciente, durmiendo constantemente y no se le podia,
despertar, tenia la respiracion fatigosa, lenta y con
estertores, y no podia levantarse, asi que yo perscribi que
diera el alimento por medio de hypodermoclysis, o sea por
medio de inyecciones.
Sr. PAMINTUAN.Quisieramos saber, Su Seoria, si se
presenta al testigo como experto?
Sr. SERRANO.Tambien quisiera saber si se presenta como
madico de la familia o como medico experto?.
Sr. ARCEGA.Presento al testigo como medico de
cabecere y como medico experto al mismo tiempo.
P. Y que hicieron en el hospital en vista de sus
instrucciones?R. Cumplieron la prescripcion mia.
P. Que sucedio con respecto al estado de la
paciente?R. La paciente a medida que pasaban los dias
56

se quedaba grave cada vez y mas graves los sintomas aun
que al primer dia en que fue ella llevada al hospital.
P. Volviendome a la condicion de la paciente, en que
estado se encontraba Doa Manuela I. Vda. de gonzales el
14 de noviembre de 1948 antes de ingresarla en el
hospital?R. La encontre con aphasia, no podia hablar
inteligentemente.
"P. Puede usted explicar al Juzgado el curso de la
enfermedad de Doa Manuela I. Vda. de Gonzales?R.
Estuvo agravandose desde el segundo dia en que fue
ingresada al hospital, y desde ese dia orinaba y deponia en
la cama inconscientemente.
xxx xxx xxx
(t.s.n., Laquindanum, March 21, 1949, pp. 24-26.)
P. Explique usted al Juzgado el curso de la enfermedad
de la paciente haciendo referencia de las fechas que
aparecen en los Exhibitos 3 y 3-4?R. El noviembre 14,
ordene el ingreso de la paciente al Mercy Hospital, porque
tuvo paralisis parcial en la lengua, probablemente de
origen embalismo o thrombosis cerebral, y como ya era de
noche no se llevo al hospital, sino el dia 15 de noviembre en
donde le he hecho dos visitas; la condicion de la paciente
continuo empeorando hasta el dia 25 de noviembre en que
sobrevino la complicacion de pneumonia hypostatica
hasta que fallecio el noviembre 27, 1948, a las 2:30 p.m.
xxx xxx xxx
(t.s.n., Laquindanum, March 21, 1948, pp. 28-29.)
JUZGADO.P. Como llego usted a esa conclusion de que
desde el 14 de noviembre de 1948 en que usted ordeno la
entrega de la paciente al hospital empeoro su salud hasta
que murio el dia 27 de noviembre de 1948?-R. Porque cada
vez mas se acentua su estado comatoso, y demas su
respiracion se hacia mas fatigosa cada vez que pasaban
los dias, y con estertores.
P. Y como estaba su estado mental?R. Estaba
completamente inconsciente desde el dia en que entro en
el hospital.
Sr. ARCEGA. P. Podia hablar la paciente en la fecha
en que fue ingresada al hospital?-R. No, seor.
P. Despues del 15 de noviembre de 1948 en que segun
usted fue ingresada la paciente en el hospital podia hablar
ella y hacer entender sus palabras?R. No, seor.
P. Y que hacia la paciente?R. Estaba durmiendo
continuamente, no podia abrir sus ojos por si sola, sino que
yo abria para ver la pupila.
P. Trato usted de tener conversacion con la paciente?
R. Naturalmente trataba, pero contestaba, y ni creo que
me entendia.
P. Podia levantarse la paciente?R. No, seor, porque
estaba en estado comtosos, y para prevenir la pneumonia
hypostatica dos o tres hombres tenian que levantaria y
ponerla algo de costado o algo asi reclinada.
P. Y que resultado tuvo esa precaucion que usted
tomo?R. Se ha retrasado o retardado le pneumonia, pero
sobrevino, al fin, que siempre es fatal.
P. Usted dijo que al fin sobrevino la pneumonia, que
efecto tuvo esa pneumonia a la paciente?R. Precipito la
muerte de la paciente.
P. El 18 de noviembre de 1948, segun testimonio de los
testigos, otorgaron el documento Exhibit 2-Alejandro y Juan
Gonzales, puede usted decir al Juzgado en que estado se
encontraba Doa Manuela I. Vda. de Gonzales?R. Estaba
en estado comatoso.
P. Por que sabe usted eso?R. Porque en esa fecha yo
la visite dos veces: una por la maana y otra por la tarde.
P. Y estando en el estado comatoso, como usted, dice,
puede usted decir al Juzgado si podia ella hablar o
entender sus palabras o su deseo?R. No, seor.
P. Hizo usted esfuerzos para hacerie comprender sus
palabras?R. Siempre examinaba a ella para ver si
reaccionaba favorablemente la paciente, pero cada vez
era peor.
P. Puede usted decir si en aquella fecha la paciente
podia siquiera hacer movimiento de cabeza?R. No, seor,
porque la parte derecha del cuerpo tenia hemiflejia o
paralisis.
P. Cual es la causa de oso que usted dice hemiflejia o
paralisis?R. Generalmente se debe a una hemorragia
cerebral o trombosis del cerebro.
P. Teniendo hemorragia cerebral o trombosis del
cerebro, segun usted, cual es la parte del cuerpo humano
que queda afectada?R. La cabeza y tambien los brazos,
como los miembros del cuerpo.
P. Que quiere usted decir como los miembros del
cuerpo?R. Las manos y los pies.
P. Podia mover la paciente sus manos y su cuerpo?R.
La parte izquierda si.
P. Y la parte derecha?-R. No, seor.
JUZGADO.Pero una persona en ese estado de salud,
como estaba la paciente Doa Manuela I. Vda. de
Gonzales, el 18 de noviembre de 1948, podia comprender
palabras dichas a ella o indicaciones hechas por alguna
persona a ella?R. No, seor.(t.s.n. Laquindanum, March
21, 1948, pp. 30-33.).
While appellant Alejandro Gonzales, Jr. has attempted to show that
Dr. Leveriza was not an expert, the latters's testimony remains
uncontradicted. The fact that the testimony of the attesting witnesses
tends to imply that the testatrix was of sound mind at the time the
alleged instrument of revocation was executed, cannot prevail over
the findings of the attending physician, Dr. Leveriza, because even Dr.
Ramon C. Talavera (an attesting witness) testified that although he
had not examined the testatrix, her case appeared serious; that he
had a hunch that "they were taking advantage of the last moment of
the deceased and they were trying to make me an instrument in the
accomplishment of their aims," and that he had the idea that the
testatrix was in doubtful condition because he "could only judge from
the people going there.".
57

It is also argued that if the testatrix was in a comatose condition, Dr.
Leveriza would not have ordered to "let her sit on bed or on chair and
let her turn on her side sometime." However, Dr. Leveriza has given the
reason for this prescription, namely, to avoid hypostatic pneumonia.
In support of the contention that the testimony of the attesting
witnesses should be given more credence than the opinion of an
expert witness, reliance is placed on the case of Caguioa vs.
Calderon, 20 Phil., 400; Bagtas vs. Paguio, 22 Phil., 227; Galvez vs.
Galvez, 26 Phil., 243; Samson vs. Corrales Tan Quintin, 44 Phil., 573;
Amata vs. Tablizo, 48 Phil., 485, and Neyra vs. Neyra, 42, Off. Gaz.,
2790 ** These cases are notably distinguishable from the case at bar.
The former refer to situations in which the doctors were not in a
position to certify definitely as the testamentary capacity of the
testators at the time the wills therein involved were executed,
because they had not observed the testators on said dates or never
saw them; whereas the case now before us involves a family physician
who attended the testatrix during her last illness and saw her on the
day when the alleged instrument of revocation was executed.
2. We cannot help expressing our surprise at the fact that the
instrument of revocation was allegedly executed on November 18,
1948, when, according to the testimony of Jose Padilla, the latter was
asked by the testatrix to prepare the necessary document as early as
in the month of May, 1948, and reminded about it for the second time
weeks before November 1, 1948, and for the third time several days
before the latter date (November 1, 1948). The first excuse given by
Jose Padilla for the delay is that he was busy and the children of the
testatrix had certain disputes which he tried to settle. The second
excuse is that he was not able to secure soon enough from Alejandro
Gonzales, Jr. some documents of transfer which he wanted to
examine in connection with the preparation of the desired instrument
of revocation. We are inclined to state that these excuses are rather
poor. If Jose Padilla was too busy to give attention to the matter, he
could have very easily informed the testatrix and the latter, if really
desirous of revoking her former wills, would have employed another to
prepare the requisite document. The fact that there were disputes
between the children of the testatrix certainly was not an obstacle to
the accomplishment of the wish of the testatrix. Neither was it
necessary to examine the documents relating to the properties of the
testatrix, since the instrument of revocation could be prepared without
any reference to the details of her estate. Indeed, the instrument
(Exhibit 2Alejandro and Juan Gonzales) is couched in general terms.
3. Even under the theory of the appellant Alejandro Gonzales, Jr. it is
hard to rule that the testatrix had sufficient testamentary capacity at
the time of the execution of the alleged instrument of revocation. In
the first place, Constancio Padilla (brother of Jose Padilla) merely
asked the testatrix, first, if she was agreeable to the instrument of
revocation prepared by Jose Padilla, and secondly, if she was
agreeable to the signing of said document by Constancio Padilla, to
which two questions the testatrix allegedly answered "Yes". It is not
pretended that the testatrix said more about the matter or gave any
further instruction. The attesting witnesses were not introduced to the
testatrix, and their presence was not even mentioned to her. it is
obviously doubtful whether the testatrix understood the meaning and
extent of the ceremony. Assuming that the testatrix answered in the
affirmative the two questions of Constancio Padilla, without more, we
cannot fairly attribute to her manifestation of her desire to proceed,
right then and there, with the signing of the questioned instrument. In
other words, contrary to the recital of the attestation clause, the
testatrix cannot rightly be said to have published her last will to the
attesting witnesses.
The appealed decision is, therefore, affirmed without costs. So
ordered.
ARTICLE 804
ABADA VS. ABAJA (ART 795)
G.R. No. L-1787 August 27, 1948
Testacy of Sixto Lopez. JOSE S. LOPEZ, petitioner-appellee,
vs.
AGUSTIN LIBORO, oppositor-appellant.
Tirona, Gutierrez and Adorable for appellant.
Ramon Diokno for appellee.
TUASON, J.:
In the Court of First Instance of Batangas the appellant opposed
unsuccessfully the probate of what purports to be the last will and
testament (Exhibit A) of Don Sixto Lopez, who died at the age of 83 in
Balayan, Batangas, on March 3, 1947, almost six months after the
document in question was executed. In the court below, the present
appellant specified five grounds for his opposition, to wit: (1) that the
deceased never executed the alleged will; (2) that his signature
appearing in said will was a forgery; (3) that at the time of the
execution of the will, he was wanting in testamentary as well as
mental capacity due to advanced age; (4) that, if he did ever
execute said will, it was not executed and attested as required by law,
and one of the alleged instrumental witnesses was incapacitated to
act as such; and it was procured by duress, influence of fear and
threats and undue and improper pressure and influence on the part of
the beneficiaries instituted therein, principally the testator's sister,
Clemencia Lopez, and the herein proponent, Jose S. Lopez; and (5)
that the signature of the testator was procured by fraud or trick.
In this instance only one of these objections is reiterated, formulated in
these words: "That the court a quo erred in holding that the document
Exhibit "A" was executed in all particulars as required by law." To this
objection is added the alleged error of the court "in allowing the
petitioner to introduce evidence that Exhibit "A" was written in a
language known to the decedent after petitioner rested his case and
over the vigorous objection of the oppositor.
The will in question comprises two pages, each of which is written on
one side of a separate sheet. The first sheet is not paged either in
letters or in Arabic numerals. This, the appellant believes, is a fatal
defect.
The purpose of the law in prescribing the paging of wills is guard
against fraud, and to afford means of preventing the substitution or of
defecting the loss of any of its pages. (Abangan vs. Abangan, 40 Phil.,
476.) In the present case, the omission to put a page number on the
first sheet, if that be necessary, is supplied by other forms of
identification more trustworthy than the conventional numerical words
or characters. The unnumbered page is clearly identified as the first
page by the internal sense of its contents considered in relation to the
contents of the second page. By their meaning and coherence, the
first and second lines on the second page are undeniably a
continuation of the last sentence of the testament, before the
attestation clause, which starts at the bottom of the preceding page.
Furthermore, the unnumbered page contains the caption
"TESTAMENTO," the invocation of the Almighty, and a recital that the
testator was in full use of his testamentary faculty, all of which, in the
logical order of sequence, precede the direction for the disposition of
the marker's property. Again, as page two contains only the two lines
above mentioned, the attestation clause, the mark of the testator and
the signatures of the witnesses, the other sheet can not by any
possibility be taken for other than page one.Abangan vs.
Abangan, supra, and Fernandez vs. Vergel de Dios, 46 Phil., 922 are
decisive of this issue.
Although not falling within the purview and scope of the first
assignment of error, the matter of the credibility of the witnesses is
assailed under this heading. On the merits we do not believe that the
appellant's contention deserves serious consideration. Such
contradictions in the testimony of the instrumental witnesses as are set
out in the appellant's brief are incidents not all of which every one of
58

the witnesses can be supposed to have perceived, or to recall in the
same order in which they occurred.
Everyday life and the result of investigations made in the
field of experimental psychology show that the
contradictions of witnesses generally occur in the details of
a certain incident, after a long series of questioning, and far
from being an evidence of falsehood constitute a
demonstration of good faith. Inasmuch 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. (People vs. Limbo, 49 Phil., 99.)
The testator affixed his thumbmark to the instrument instead of signing
his name. The reason for this was that the testator was suffering from
"partial paralysis." While another in testator's place might have
directed someone else to sign for him, as appellant contends should
have been done, there is nothing curious or suspicious in the fact that
the testator chose the use of mark as the means of authenticating his
will. It was a matter of taste or preference. Both ways are good. A
statute requiring a will to be "signed" is satisfied if the signature is made
by the testator's mark. (De Gala vs. Gonzales and Ona, 53 Phil., 108; 28
R. C. L., 117.)
With reference to the second assignment of error, we do not share the
opinion that the trial court communicated an abuse of discretion in
allowing the appellant to offer evidence to prove knowledge of
Spanish by the testator, the language in which the will is drawn, after
the petitioner had rested his case and after the opponent had moved
for dismissal of the petition on the ground of insufficiency of evidence.
It is within the discretion of the court whether or not to admit further
evidence after the party offering the evidence has rested, and this
discretion will not be reviewed except where it has clearly been
abused. (64 C. J., 160.) More, it is within the sound discretion of the
court whether or not it will allow the case to be reopened for the
further introduction of evidence after a motion or request for a
nonsuit, or a demurrer to the evidence, and the case may be
reopened after the court has announced its intention as to its ruling on
the request, motion, or demurrer, or has granted it or has denied the
same, or after the motion has been granted, if the order has not been
written, or entered upon the minutes or signed. (64 C. J., 164.)
In this jurisdiction this rule has been followed. After the parties have
produced their respective direct proofs, they are allowed to offer
rebutting evidence only, but, it has been held, the court, for good
reasons, in the furtherance of justice, may permit them to offer
evidence upon their original case, and its ruling will not be disturbed in
the appellate court where no abuse of discretion appears. (Siuliong
and Co. vs. Ylagan, 43 Phil., 393; U. S. vs. Alviar, 36 Phil., 804.) So,
generally, additional evidence is allowed when it is newly discovered,
or where it has been omitted through inadvertence or mistake, or
where the purpose of the evidence is to the evidence is to correct
evidence previously offered. (I Moran's Comments on the Rules of
Court, 2d ed., 545; 64 C. J., 160-163.) The omission to present evidence
on the testator's knowledge of Spanish had not been deliberate. It
was due to a misapprehension or oversight.
Although alien to the second assignment of error, the appellant
impugns the will for its silence on the testator's understanding of the
language used in the testament. There is no statutory requirement that
such knowledge be expressly stated in the will itself. It is a matter that
may be established by proof aliunde. This Court so impliedly ruled
in Gonzales vs. Laurel, 46 Phil., 781, in which the probate of a will
written in Tagalog was ordered although it did not say that the testator
knew that idiom. In fact, there was not even extraneous proof on the
subject other than the fact that the testator resided in a Tagalog
region, from which the court said "a presumption arises that said Maria
Tapia knew the Tagalog dialect.
The order of the lower court ordering the probate of the last will and
testament of Don Sixto Lopez is affirmed, with costs.
Paras, Pablo, Perfecto, Bengzon, Briones and Padilla, JJ., concur.
G.R. No. L-13431 November 12, 1919
In re will of Ana Abangan.
GERTRUDIS ABANGAN, executrix-appellee,
vs.
ANASTACIA ABANGAN, ET AL., opponents-appellants.
Filemon Sotto for appellants.
M. Jesus Cuenco for appellee.

AVANCEA, J.:
On September 19, 1917, the Court of First Instance of Cebu admitted
to probate Ana Abangan's will executed July, 1916. From this decision
the opponent's appealed.
Said document, duly probated as Ana Abangan's will, consists of two
sheets, the first of which contains all of the disposition of the testatrix,
duly signed at the bottom by Martin Montalban (in the name and
under the direction of the testatrix) and by three witnesses. The
following sheet contains only the attestation clause duly signed at the
bottom by the three instrumental witnesses. Neither of these sheets is
signed on the left margin by the testatrix and the three witnesses, nor
numbered by letters; and these omissions, according to appellants'
contention, are defects whereby the probate of the will should have
been denied. We are of the opinion that the will was duly admitted to
probate.
In requiring that each and every sheet of the will should also be signed
on the left margin by the testator and three witnesses in the presence
of each other, Act No. 2645 (which is the one applicable in the case)
evidently has for its object (referring to the body of the will itself) to
avoid the substitution of any of said sheets, thereby changing the
testator's dispositions. But when these dispositions are wholly written on
only one sheet signed at the bottom by the testator and three
witnesses (as the instant case), their signatures on the left margin of
said sheet would be completely purposeless. In requiring this signature
on the margin, the statute took into consideration, undoubtedly, the
case of a will written on several sheets and must have referred to the
sheets which the testator and the witnesses do not have to sign at the
bottom. A different interpretation would assume that the statute
requires that this sheet, already signed at the bottom, be signed twice.
We cannot attribute to the statute such an intention. As these
signatures must be written by the testator and the witnesses in the
presence of each other, it appears that, if the signatures at the
bottom of the sheet guaranties its authenticity, another signature on its
left margin would be unneccessary; and if they do not guaranty, same
signatures, affixed on another part of same sheet, would add nothing.
We cannot assume that the statute regards of such importance the
place where the testator and the witnesses must sign on the sheet that
it would consider that their signatures written on the bottom do not
guaranty the authenticity of the sheet but, if repeated on the margin,
give sufficient security.
In requiring that each and every page of a will must be numbered
correlatively in letters placed on the upper part of the sheet, it is
likewise clear that the object of Act No. 2645 is to know whether any
sheet of the will has been removed. But, when all the dispositive parts
of a will are written on one sheet only, the object of the statute
disappears because the removal of this single sheet, although
unnumbered, cannot be hidden.
What has been said is also applicable to the attestation clause.
Wherefore, without considering whether or not this clause is an
essential part of the will, we hold that in the one accompanying the
will in question, the signatures of the testatrix and of the three
59

witnesses on the margin and the numbering of the pages of the sheet
are formalities not required by the statute. Moreover, referring
specially to the signature of the testatrix, we can add that same is not
necessary in the attestation clause because this, as its name implies,
appertains only to the witnesses and not to the testator since the latter
does not attest, but executes, the will.
Synthesizing our opinion, we hold that in a will consisting of two sheets
the first of which contains all the testamentary dispositions and is
signed at the bottom by the testator and three witnesses and the
second contains only the attestation clause and is signed also at the
bottom by the three witnesses, it is not necessary that both sheets be
further signed on their margins by the testator and the witnesses, or be
paged.
The object of the solemnities surrounding the execution of wills is to
close the door against bad faith and fraud, to avoid substitution of
wills and testaments and to guaranty their truth and authenticity.
Therefore the laws on this subject should be interpreted in such a way
as to attain these primordal ends. But, on the other hand, also one
must not lose sight of the fact that it is not the object of the law to
restrain and curtail the exercise of the right to make a will. So when an
interpretation already given assures such ends, any other
interpretation whatsoever, that adds nothing but demands more
requisites entirely unnecessary, useless and frustative of the testator's
last will, must be disregarded. lawphil.net
As another ground for this appeal, it is alleged the records do not
show that the testarix knew the dialect in which the will is written. But
the circumstance appearing in the will itself that same was executed
in the city of Cebu and in the dialect of this locality where the testatrix
was a neighbor is enough, in the absence of any proof to the
contrary, to presume that she knew this dialect in which this will is
written.
For the foregoing considerations, the judgment appealed from is
hereby affirmed with costs against the appellants. So ordered.
Arellano, C.J., Torres, Johnson, Araullo, Street and Malcolm, JJ.,
concur.
G.R. No. L-28946 January 16, 1929
In re estate of Piraso, deceased.
SIXTO ACOP, petitioner-appellant,
vs.
SALMING PIRASO, ET AL., opponents-appellees.
Gibbs and McDonough and Roman Ozaeta for appellant.
Adolfo A. Scheerer for appellees.
ROMUALDEZ, J.:
This appeal was taken from the judgment of the Court of First Instance
of Benguet, denying the probate of the instrument Exhibit A, as the last
will and testament of the deceased Piraso.
The proponent-appellant assigns the following as alleged errors of the
lower court:
1. In holding that in order to be valid the will in question
should have been drawn up in the Ilocano dialect.
2. In not holding that the testator Piraso did not know the
Ilocano dialect well enough to understand a will drawn up
in said dialect.
3. In refusing to admit the will in question to probate.
The fundamental errors assigned refer chiefly to the part of the
judgment which reads as follows:
The evidence shows that Piraso knew how to speak the
Ilocano dialect, although imperfectly, and could make
himself understood in that dialect, and the court is of the
opinion that his will should have been written in that dialect.
Such statements were not unnecessary for the decision of the case,
once it has been proved without contradiction, that the said
deceased Piraso did not know English, in which language the
instrument Exhibit A, alleged to be his will, is drawn. Section 628 of the
Code of Civil Procedure, strictly provides that:
"No will, except as provides in the preceding section" (as to wills
executed by a Spaniard or a resident of the Philippine Islands, before
the present Code of Civil Procedure went into effect), "shall be valid to
pass any estate, real or personal, nor charge or affect the
same, unless it be written in the language or dialect known by the
testator," etc. (Emphasis supplied.) Nor can the presumption in favor of
the will established by this court in Abangan vs. Abangan (40 Phil.,
476), to the effect that the testator is presumed to know the dialect of
the locality where he resides, unless there is proof to the contrary,
even he invoked in support of the probate of said document Exhibit A,
as a will, because, in the instant case, not only is it not proven that
English is the language of the City of Baguio where the deceased
Piraso lived and where Exhibit A was drawn, but that the record
contains positive proof that said Piraso knew no other language than
the Igorrote dialect, with a smattering of Ilocano; that is, he did not
know the English language in which Exhibit A is written. So that even if
such a presumption could have been raised in this case it would have
been wholly contradicted and destroyed.
We consider the other question raised in this appeal needless and
immaterial to the adjudication of this case, it having been, as it was,
proven, that the instrument in question could not be probated as the
last will and testament of the deceased Piraso, having been written in
the English language with which the latter was unacquainted.
Such a result based upon solidly established facts would be the same
whether or not it be technically held that said will, in order to be valid,
must be written in the Ilocano dialect; whether or not the Igorrote or
Inibaloi dialect is a cultivated language and used as a means of
communication in writing, and whether or not the testator Piraso knew
the Ilocano dialect well enough to understand a will written in said
dialect. The fact is, we repeat, that it is quite certain that the
instrument Exhibit A was written in English which the supposed testator
Piraso did not know, and this is sufficient to invalidate said will
according to the clear and positive provisions of the law, and
inevitably prevents its probate.
The judgment appealed from is affirmed, with the costs of this instance
against the appellant. So ordered.
Avancea, C. J., Malcolm, Villamor, Ostrand and Villa-Real, JJ.,
concur.
G.R. No. L-2862 April 21, 1952
TESTATE ESTATE OF MARIA ZUIGA VDA. DE PANDO, deceased. JUAN
REYES, petitioner-administrator-appellant,
vs.
DOLORES ZUIGA VDA. DE VIDAL, oppositor-appellee.
Jose Sotelo Mati and Agustin Alvarez Salazar for appellant.
Jose Perez Cardenas for appellee.
BAUTISTA ANGELO, J.:
60

This concerns the admission to probate of a document claimed to be
the last will and testament of Maria Zuiga Vda. de Pando who died in
the City of Manila on October 29, 1945.
On November 6, 1945, a petition for the probate of said will was filed in
the Court of First Instance of Manila. On December 21, 1945, Dolores
Zuiga Vda. de Vidal, sister of the deceased, filed an opposition
based on several grounds. And, after several days of trial, at which
both parties presented their respective evidence, the court rendered
its decision disallowing the will on the ground that the signatures of the
deceased appearing therein are not genuine, that it was not proven
that the deceased knew the Spanish language in which it was written,
and that even if the signatures are genuine, the same reveal that the
deceased was not of sound mind when she signed the will. From this
decision petitioner appealed to this Court.
While petitioner imputes nine errors to the lower court, we believe,
however, that for purposes of this appeal of discussion of some would
be sufficient. Thus, the issues may be boiled down as follows: 1)
Whether or not the signatures of the deceased appearing in the will
(Exhibit "C") are genuine; 2) whether or not there is evidence to show
that the testatrix knew the language in which the will was written; and
3) whether or not the testatrix was of sound and disposing mind when
she signed the will.
1. To prove that the will was signed by the testatrix in accordance with
law, petitioner presented as witnesses the three persons who attested
to the execution of the will. These witnesses are: Cornelia Gonzales de
Romero, Quintin Ulpindo and Consuelo B. de Catindig. The first used to
provide the deceased with ice every day, and in one of those
occasions she went to her house to bring ice, she requested to act
witness to the execution of the will. The second was a laborer whose
job was is to fix bed made of rattan, and in one of those days he went
to the house of the deceased to work, he was asked also to witness
the signing of the will. And the third was a neighbor of the deceased
for many years who was also requested to act as an instrumental
witness. These witnesses testified in their own simple and natural way
that the deceased signed the will seated on her bed but over a small
table placed near the bed in their presence, and after she had signed
it in the places where her signatures appear, they in turn signed it in
the presence and in the presence of each other. This is the substance
of what they have testified and from an examination of their testimony
to the court entertains no doubt that they had told the truth. There is
nothing in their testimony which may in any way reflect against their
credibility nor has the oppositor proven fact or circumstance which
may give rise to the suspicion that they testified out of personal interest
or pecuniary consideration. They have impressed the court as simple
persons who had intervened in the execution of the will out merely of
deference to the testatrix whom they had served for sometime and
had known to be a good and respectable woman.
What evidence has the oppositor presented to contradict the
testimony of these instrumental witnesses? only one expert witness,
Jose G. Villanueva, who made a comparative analysis of the
signatures appearing in the will in relation to some genuine signatures
of the deceased, and in fact testified on the analysis and study he has
made of said signatures and submitted a memorandum on the study
and comparison he has made. And in his testimony as well as in his
memorandum, this witness has reached the conclusion that the hand
that wrote the signatures of the deceased appearing in the will is not
the same hand that wrote the genuine signatures he had examined
and which he used as basis of his analytical study, thereby concluding
that said signatures are not genuine. The lower court gave full faith
and credit to the opinion of this expert witness, and decreed as a
result that the will cannot be admitted to probate.
There are, however, certain important facts and circumstances which
make us differ from this opinion of the lower court. In the first place, we
find that the opinion of this expert witness has been rebutted by
another expert witness Jose C. Espinosa, whose opinion, to our mind,
deserves more weight and credence. And our reason for reaching this
conclusion is the fact that the standards of the comparison used by
Espinosa are more reliable than those used by Villanueva in the
comparison are two signatures appearing in two documents
executed on November 10, 1942, one signature in an identification
card affixed in April 1940, a half signature appearing in a letter written
on October 8, 1943, one signature appearing in a letter written on July
16, 1945, and one signature appearing in a letter written on January,
1945, whereas the disputed signatures appearing in the will were
affixed on October 29, 1945. On the other hand, the standards used
by Espinosa in making his comparative study bear dates much closer
to that of the disputed signatures. Thus, he examined four genuine
signatures that were affixed on October 16, 1945, other four signatures
that were affixed in October 1945, one on January 2, 1945, on January
24, 1945, and one on September 24 1945, He also examined one
affixed on March 12, 1941, only for emphasis. The closeness or
proximity of the time in which the standards used had been written to
that of the suspected signature or document is very important to bring
about an accurate analysis and conclusion. the selection of the
proper standards of comparison is of paramount importance
especially if we consider the age and the state of the health of the
author of the questioned signatures. a signature affixed in 1941 may
involved characteristics different from those borne by a signature
affixed in 1945. And this is because the passing of time and the
increase in age may have a decisive influence in the writing
characteristics of a person. It for this reasons that the authorities of the
opinion that in order to bring about an accurate comparison and
analysis, the standard of comparison must be as close as possible in
point of time to the suspected signature. Such was not followed in the
study made by Villanueva. But such was observed in the study made
by Espinosa. He followed the standard practice in handwriting
analysis. It is for this reason that we hold that Espinosa's opinion
deserves more weight and consideration.
The standards should, if possible, have been made by the
same time as the suspected document. It is preferable that
the standards embraced the time of the origin of the
document, so that one part comes from the time after the
origin. (Page 423 "Modern Criminal Investigation" by
Soderman and O' Connell, 1936, Funk and Wagnalls
Company, New York and London.)
If possible less than five or six signatures should always be
examined and preferably double that number." (Page 139,
Forensic Chemistry and Scientific Criminal Investigation by
Lucas, 1935, Edward Arnold & Co., London.)
2. Another ground on which the lower court base the disallowance of
the will is the failure of the petitioner to prove that the testratrix knew
and spoke the language in which the will in question appears to have
been written. According to the lower court, the law requires that the
will should be written in the dialect or language known to the testator
and this fact having been proven, the probate of the will must fail.
And the wall was disallowed.
There is indeed nothing in the testimony of the witnesses presented by
the petitioner which would indicate that the testatrix knew and spoke
the Spanish language used in the preparation of the will in question.
But, in our opinion, this failure alone does not in itself suffice to
conclude that this important requirement of the law has not been
complied with, it appearing that there is enough evidence on record
which supplies this technical omission. In the first place, we have the
undisputed fact that the deceased was a mestiza espaola, was
married to a Spaniard, Recaredo Pando, and made several trips to
Spain. In the second place, we have the very letters submitted as
evidence by the oppositor written in Spanish by the deceased
possessed the Spanish language, oppositor cannot now be allowed to
allege the contrary. These facts give rise to the presumption that the
testatrix knew the language in which the testament has been written,
which presumption should stand unless the contrary is proven
(Abangan vs. Abangan, 40 Phil., 476; Gonzales vs. Laurel, 46 Phil. 750).
And this presumption has not been overcome. And finally, we have
the very attestation clause of the will which states that the testatrix
knew and possessed the Spanish language. It is true that this matter is
not required to be stated in the attestation clause, but its inclusion can
61

only mean that the instrumental witnesses wanted to make it of record
that the deceased knew the language in which the will was written.
There is, therefore, no valid reason why the will should be avoided on
this ground.
3. The remaining ground which the lower court has considered in
disallowing the will is the fact that the deceased was not of sound and
disposing mind when she signed the will, and it reached this
conclusion, not because of any direct evidence on the matter, but
simply because the deceased signed the will in a somewhat varied
form. On this point the lower court said:
El Juzgado es de opinion que aunque se admita que las
firmas arriba indicadas feuran de Maria Zuiga Vda. de
Pando, las mismas revelan que ella no estabe en el pleno
de sus facultades mentales cuando la hicieron firmar el
documento, Exhibit C, pues el hecho de que en una sola
ocasion la repetida Maria Zuiga Vda. de Pando firmo dos
veces, sin escribir su verdadero nombre, demuestra que ella
no se daba cuenta de sus actos por no hallarse
mentalmente sana. Si esto es asi, no se debe legalizar como
testamento y ultima voluntad de la finada Maria Zuiga
Vda. de Pando el documento, Exhibit C, porque el Articulo
614 de la Ley 190 y el Articulo 12, Reglamentos de los
Tribunales, disponen que solamente pueden otorgar
testamento las personas que al tiempo de su otorgamiento
estaban en el pleno goce de sus facultades mentales.
The above conclusion is contrary to what the instrumental witnesses
have said on this point. Cornelio Gonzales de Romero stated that she
spoke to the deceased before the signing of the will, and judging from
the way she spoke she was of the impression that the deceased was
of sound mind at the time. To the same effect is the testimony of
Consuelo B. de Catindig. She said that her impression when the
deceased signed the will was that she could still talk and read, only
that she was weak. In fact she read the will before signing it. These
statements had not been contradicted. They give an idea of the
mental had not contradicted. They give an idea of mental condition
of the deceased in the will differ from each other in certain respects,
this is only due to her age and state of health rather than to a
defective mental condition. They do not reveal a condition of forgery
or lack of genuineness. These differences or irregularities are common
in the writings of old people and, far from showing lack of
genuineness, are indicative of the age, sickness, or weak condition of
the writer. A comparison of the three disputed signatures in the will
readily give this impression.
Abbreviated, distorted and illegible, forms, which are
sufficiently free and rapid, often actually indicate
genuineness rather than forgery even though they are very
unusual and not exactly like those in the standard writing.
Those who write of difficulty or hesitation through some
physical infirmity may sometimes produced broken and
unfinished signatures and these results, which in themselves
are distinctly divergent as compared with signatures
produced under conditions of strength and health, may
forcefully indicate genuineness . Under conditions of
weakness due to diseased or age, parts of a genuine
signature may be clumsily written over a second time not at
just the same place and in a way when clearly shows that
the writer either could not see or was so week and
inattentive as not to care what the result might be. This
careless, perfectly evident repetition (figure 184), unlike the
painstaking and delicate retouching of the forger, often
indicates genuineness. (Page 365, Questioned Documents
by Osborne, 2nd Edition, 1927.)
We are, therefore, of the opinion that the lower court erred in
disallowing the will Exhibit C.
Wherefore, the decision appealed from is hereby reversed. The Court
admits the will Exhibit C to probate, and remands these case to the
lower court for further proceedings, with costs against the appellee.
Paras, C.J., Feria, Bengzon, Tuason, Montemayor and Reyes,
JJ., concur.
G.R. No. L-13781 January 30, 1960
Testate Estate of JOSE J. JAVELLANA, Deceased. CRISTETA JIMENEA
VDA. DE JAVELLANA, and BENJAMIN JAVELLANA, petitioners-
appellees,
vs.
JOSE JAVELLANA y AZAOLA and JOSE JAVELLANA, JR., oppositors-
appellants.
Vicente Hilado for appellees.
Delgado, Flores and Macapagal and Arturo E. Balbastro for
appellants.
BARRERA, J.:
On June 29, 1957, a petition to probate the alleged last will and
testament of Jose J. Javellana, who died on May 24 of the same year,
was presented in the Court of First Instance of Rizal by Crsiteta
Jimenea Vda. de Javellana and Benjamin Javellana, widow and
brother respectively of the deceased, alleging that the aforesaid Jose
J. Javellana, at the time of his death, a resident of Ssan Juan Rizal, left
porperties with an approximate value of P400,000.00; that he also left
a will which was delivered to the clerk of court pursuant to the Rules of
Court; that Oscar Ledesma, therein named executor, had agreed to
act as such; that the decedent's next of kin were; the wido., Criteta J.
Vda. de Javellana, his children Erlinda Javellana, Jose Javellana y
Azaola, and Jose Javellana, Jr. (Pepito), his sister Juanito J. de
Ledesma, and brother Benjamin Javellana, whose respective
addresses wre given in the petition.
To this petition, Jose Javellana y Azaola and Jose Javellana, Jr.
(Pepito) filed separate opposiytions, both claiming that the alleged
will of Jose J. Javellana deposited by peittioners with the clerk of court
was null and void, the same not having been executed "in
accordance with the formalities required by law" and that "the legal
requirements necessary for its validit" had not been complied with.
At the hearing, petitioners introduced as evidence in support of the
petition, a copy of the will; certification of the date and cause of
death of the testator; proof of publication of the petition, once a
week for 3 consecutive weeks, in a newspaper of general circulation,
and thre testimonies of Jose G. Guevarra, Eloisa Villanueva and Jose
Yulo, Jr., the 3 instrumental witnesses to the will, whi, in sustancer,
testified that sometime in April, 1956, they were asked to witness the
execution of the will of the late Jose. J. Javellana; that on the said
occasion, Jose J. Javellana signed the 4 pages of the will in their
presence, and they, in turn, also signed each and evey page thereof
in the presence of the testator and of one another; and that these
acts wetre acknowledge before notary public Fernando Grey, Jr. on
the same occasion.
For their part, the oppositor limited their evidence to the presentation
of two letters in the Visayan dialect allegedly written by the
deceased, the signatures appearing thereon being identified by Jose
Javellana, Jr. (Pepito) and Manuel Azaola, as those of the deceased,
for the sole purpose of comparing said signatures woth those
appearing in the will.
On December 10, 1957, the court a quo issued an order allowing the
probate of the will and directing the issuance of letters testamentary
to Oscar Ledesma as executor thereoif, upon the latter's filing a bond
in the sum of P10,000.00. From this order, oppositors appealed to this
Court charging the lower court of committing error in allowing
62

oprobate of the will, Exhibit C, on 2 grounds: (1) that the 3 sttesting
witnesses failed to clearly and convincingly estabish the due
execution of the will; and (2) that petitioners failed to prove that the
will was written in a language known to the testator.
The first basis of oppositor's appeal has no merit. It is true that
witnesses, particularly Miss Eloisa Villanueva, apparently found
difficulty recalling who arrived first at the appointed place, or the
order of the witnesses' signing the will, or failed to mention by name
the persons present at the time of the witnesses was signing the
document. These details, however, are minor and significant and do
not enervate their positive testimony that at the execution of the will
the testator, the 3 witnesses, the notary public and Atty. Vicente
Hilado were all together in the private office of the latter; that Jose
Guevarra, Eloisa Villanueva and Jose Yulo, Jr., the instrumental
witnesses, were unanimous in declaring that they actually saw the
testator sign the will as well as each and every page thereof, and
they, in turen, affixed their signatures to all of its 4 pages. For the
purpose of determining tjhe due execution of a will, it is not necessary
that the instrumental witnesses should give an accurate and detailed
account of the proceeding, such as recalling the order of the signing
of the document by the dsaid wirtneese. It is sufficient that they have
seen or at least were so situated at the moment that they could have
seen each other sign, had they wnated to do so.
1
In fact, in the instant
case, at least two witnesses, Yulo and Guevarra, both testified hat the
testator and the 3 witnesses signed in the presence of each and every
one of them.
With respect to the second ground, there is some merit in appellant's
contention that the language requirement of the law on wills has not
been satisfactorily complied with in this case. Admittedly, there is want
of expression in the body of the will itself or in its attestation clause that
the testator knew Spanish, the language in which it is written. It is true
that there is no statutory provision requiring this and that proof thereof
may be established by evidence aliunde.
2
But here, there is absolutely
no such evidence presented by the petitioners-appellees. Not even
the petition for probate contains any allegation to this effect. No
reference to it whatsoever is made in the appealed order.
In some cases, it is true, this lack of evidence was considered cured by
presumptioin of knowledge of the language or dialect used in the will,
as where the will is executed in a certain province or locality, in the
dialect currently used in such provimnce or locality in which the
testator is a native or resident, the presumption arises that the testator
knew the dialect so used, in the absence of evidence to the contrary;
3 or where the will is in Spanish, the fact that the testratrix was a
"mestiza espaola", was married to a Spaniard, made several trips to
Spain, and some of her letters in her own handwriting submitted as
evidence by the oppositor, are in Spanish, give rise to the presumption
that she knew the language in which the will was written, in the
absence of proof to the contrary.
4

In the case before us, no such or similar circumstances exist. On the
contrary, there is evidence that the testator is a Visayan although
residing in San Juan, Rizal at the time of his death. The will was
executed in the City of Manila. Undoubtedly, it cannot be said, and
there is no evidence, that Spaniards is the language currently used
either in San Juan, Rizal, or Manila. It follows, therefore, that no
presumption can rise that the testator knew the Spanish Language.
But petitioner-appellees insist in their brief that the burden is on the
oppositors to allege and prove that the testator did not know the
Spanish language in the face of the legal presumption that "the law
has been obeyed", "that a will executed in the Philippines must be
presumed to have been executed in conformity with the laws of the
Philippines".
5
and "that things have happened in accordance with the
ordinary course of nature and the ordinary habits of life", concluding
that it woiuld certainly be contrary to the ordinary habits of life for a
person to execute his will in a language unknown to him. This, we
believe, is, to use a colloquial term, being the question. If the
argument of counsel is correct, then every unopposed will may be
probated upon its mere presentation in court, without need of
producing evidence regarding its execution. Counsel's statement is its
own refutation.
We find, in the record stone indicia, although insufficient to give rise to
the presumption, that the testator might, in fact, have known the
Spanish language. In oppositor's own Exhibit 3 (a letter admittedly
written by the testator) appear the salutation "Querido Primo" and the
complimentary ending "Su primo" which are Spanish terms. Having
found that al the formal requisites for the validity of the will have been
satisfactorily establishment, except the language requirement, we
deem it in the interest of justice to afford the parties a opportunity to
present evidence, if they so desire, on this controverted issue.
Wherefore, let the records of this case be remanded to the court of
origin for furhter proceedings as above indicated, without costs. It is so
ordered.
Paras, Bengzon, C.J., Bautista Angelo, Labrador, Concepcion, Reyes,
J.B.L., Endencia and Gutierrez David, JJ., concur.
A.M. No. 2026-CFI December 19, 1981
NENITA DE VERA SUROZA, complainant,
vs.
JUDGE REYNALDO P. HONRADO of the Court of First Instance of Rizal,
Pasig Branch 25 and EVANGELINE S. YUIPCO, Deputy Clerk of
Court, respondents.

AQUINO, J.:
Should disciplinary action be taken against respondent judge for
having admitted to probate a will, which on its face is voidbecause it
is written in English, a language not known to the illiterate testatrix, and
which is probably a forged will because she and the attesting
witnesses did not appear before the notary as admitted by the notary
himself?
That question arises under the pleadings filed in the testate case and
in the certiorari case in the Court of Appeals which reveal the
following tangled strands of human relationship:
Mauro Suroza, a corporal in the 45th Infantry of the U.S. Army
(Philippine Scouts), Fort McKinley, married Marcelina Salvador in 1923
(p. 150, Spec. Proc. No. 7816). They were childless. They reared a boy
named Agapito who used the surname Suroza and who considered
them as his parents as shown in his 1945 marriage contract with Nenita
de Vera (p. 15, Rollo of CA-G.R. No. 08654-R; p. 148, Rollo of Testate
Case showing that Agapito was 5 years old when Mauro married
Marcelina in 1923).
Mauro died in 1942. Marcelina, as a veteran's widow, became a
pensioner of the Federal Government. That explains why on her death
she had accumulated some cash in two banks.
Agapito and Nenita begot a child named Lilia who became a
medical technologist and went abroad. Agapito also became a
soldier. He was disabled and his wife Nenita was appointed as his
guardian in 1953 when he was declared an incompetent in Special
Proceeding No. 1807 of the Court of First Instance of Rizal, Pasig
Branch I (p. 16, Rollo of CA-G.R. No. 08654-R).
In that connection, it should be noted that a woman named Arsenia
de la Cruz wanted also to be his guardian in another proceeding.
Arsenia tried to prove that Nenita was living separately from Agapito
and that she (Nenita) admitted to Marcelina that she was unfaithful to
Agapito (pp. 61-63, Record of testate case).
63

Judge Bienvenido A. Tan dismissed the second guardianship
proceeding and confirmed Nenita's appointment as guardian of
Agapito (p. 16, Rollo of CA case). Agapito has been staying in a
veteran's hospital in San Francisco or Palo Alto, California (p. 87,
Record).
On a date not indicated in the record, the spouses Antonio Sy and
Hermogena Talan begot a child named Marilyn Sy, who, when a few
days old, was entrusted to Arsenia de la Cruz (apparently a girl friend
of Agapito) and who was later delivered to Marcelina Salvador Suroza
who brought her up as a supposed daughter of Agapito and as her
granddaughter (pp. 23-26, Rollo of CA-G.R. No.SP-08654-R). Marilyn
used the surname Suroza. She stayed with Marcelina but was not
legally adopted by Agapito. She married Oscar Medrano and is
residing at 7666 J.B. Roxas Street, Makati, apparently a neighbor of
Marina Paje, a resident of 7668 J.B. Roxas Street.
Marcelina supposedly executed a notarial will in Manila on July 23,
1973, when she was 73 years old. That will which is in English was
thumbmarked by her. She was illiterate. Her letters in English to the
Veterans Administration were also thumbmarked by her (pp. 38-39, CA
Rollo). In that wig, Marcelina bequeathed all her estate to her
supposed granddaughter Marilyn.
Marcelina died on November 15, 1974 at the Veterans Hospital in
Quezon City. At the time of her death, she was a resident of 7374 San
Maximo Street, Olimpia, Makati, Rizal. She owned a 150-square meter
lot and house in that place. She acquired the lot in 1966 (p. 134,
Record of testate case).
On January 13, 1975, Marina Paje, alleged to be a laundrywoman of
Marcelina (P. 97, CA Rollo) and the executrix in her will (the alternate
executrix was Juanita Macaraeg, mother of Oscar, Marilyn's husband),
filed with the Court of First Instance of Rizal, Pasig Branch 25, a petition
for the probate of Marcelina's alleged will. The case was assigned to
Judge Reynaldo P. Honrado.
As there was no opposition, Judge Honrado commissioned his deputy
clerk of court, Evangeline S. Yuipco, to hear the evidence. The
transcripts of the stenographic notes taken at the hearing before the
deputy clerk of court are not in the record.
In an order dated March 31, 1975, Judge Honrado appointed Marina
as administratrix. On the following day, April 1, Judge Honrado issued
two orders directing the Merchants Banking Corporation and the Bank
of America to allow Marina to withdraw the sum of P10,000 from the
savings accounts of Marcelina S. Suroza and Marilyn Suroza and
requiring Corazon Castro, the custodian of the passbooks, to deliver
them to Marina.
Upon motion of Marina, Judge Honrado issued another order dated
April 11, 1975, instructing a deputy sheriff to eject the occupants of the
testatrix's house, among whom was Nenita V. Suroza, and to place
Marina in possession thereof.
That order alerted Nenita to the existence of the testamentary
proceeding for the settlement of Marcelina's estate. She and the other
occupants of the decedent's house filed on April 18 in the said
proceeding a motion to set aside the order of April 11 ejecting them.
They alleged that the decedent's son Agapito was the sole heir of the
deceased, that he has a daughter named Lilia, that Nenita was
Agapito's guardian and that Marilyn was not Agapito's daughter nor
the decedent's granddaughter (pp. 52-68, Record of testate case).
Later, they questioned the probate court's jurisdiction to issue the
ejectment order.
In spite of the fact that Judge Honrado was already apprised that
persons, other than Marilyn, were claiming Marcelina's estate, he
issued on April 23 an order probating her supposed will wherein
Marilyn was the instituted heiress (pp. 74-77, Record).
On April 24, Nenita filed in the testate case an omnibus petition "to set
aside proceedings, admit opposition with counter-petition for
administration and preliminary injunction". Nenita in that motion
reiterated her allegation that Marilyn was a stranger to Marcelina, that
the will was not duly executed and attested, that it was procured by
means of undue influence employed by Marina and Marilyn and that
the thumbmarks of the testatrix were procured by fraud or trick.
Nenita further alleged that the institution of Marilyn as heir is void
because of the preterition of Agapito and that Marina was not
qualified to act as executrix (pp. 83-91, Record).
To that motion was attached an affidavit of Zenaida A. Penaojas the
housemaid of Marcelina, who swore that the alleged will was
falsified (p. 109, Record).
Not content with her motion to set aside the ejectment order (filed on
April 18) and her omnibus motion to set aside the proceedings (filed
on April 24), Nenita filed the next day, April 25, an opposition to the
probate of the will and a counter-petition for letters of administration.
In that opposition, Nenita assailed the due execution of the will and
stated the names and addresses of Marcelina's intestate heirs, her
nieces and nephews (pp. 113-121, Record). Nenita was not aware of
the decree of probate dated April 23, 1975.
To that opposition was attached an affidavit of Dominga Salvador
Teodocio, Marcelina's niece, who swore that Marcelina never
executed a win (pp. 124-125, Record).
Marina in her answer to Nenita's motion to set aside the proceedings
admitted that Marilyn was not Marcelina's granddaughter but was the
daughter of Agapito and Arsenia de la Cruz and that Agapito was not
Marcelina's son but merely an anak-anakan who was not legally
adopted (p. 143, Record).
Judge Honrado in his order of July 17, 1975 dismissed Nenita's counter-
petition for the issuance of letters of administration because of the
non-appearance of her counsel at the hearing. She moved for the
reconsideration of that order.
In a motion dated December 5, 1975, for the consolidation of all
pending incidents, Nenita V. Suroza reiterated her contention that the
alleged will is void because Marcelina did not appear before the
notary and because it is written in English which is not known to her
(pp. 208-209, Record).
Judge Honrado in his order of June 8, 1976 "denied" the various
incidents "raised" by Nenita (p. 284, Record).
Instead of appealing from that order and the order probating the wig,
Nenita "filed a case to annul" the probate proceedings (p. 332,
Record). That case, Civil Case No. 24276, Suroza vs. Paje and Honrado
(p. 398, Record), was also assigned to Judge Honrado. He dismissed it
in his order of February 16, 1977 (pp. 398-402, Record).
Judge Honrado in his order dated December 22, 1977, after noting
that the executrix had delivered the estate to Marilyn, and that the
estate tax had been paid, closed the testamentary proceeding.
About ten months later, in a verified complaint dated October 12,
1978, filed in this Court, Nenita charged Judge Honrado with having
probated the fraudulent will of Marcelina. The complainant reiterated
her contention that the testatrix was illiterate as shown by the fact that
she affixed her thumbmark to the will and that she did not know
English, the language in which the win was written. (In the decree of
probate Judge Honrado did not make any finding that the will was
written in a language known to the testatrix.)
64

Nenita further alleged that Judge Honrado, in spite of his knowledge
that the testatrix had a son named Agapito (the testatrix's supposed
sole compulsory and legal heir), who was preterited in the will, did not
take into account the consequences of such a preterition.
Nenita disclosed that she talked several times with Judge Honrado
and informed him that the testatrix did not know the executrix Marina
Paje, that the beneficiary's real name is Marilyn Sy and that she was
not the next of kin of the testatrix.
Nenita denounced Judge Honrado for having acted corruptly in
allowing Marina and her cohorts to withdraw from various banks the
deposits Marcelina.
She also denounced Evangeline S. Yuipco, the deputy clerk of court,
for not giving her access to the record of the probate case by
alleging that it was useless for Nenita to oppose the probate since
Judge Honrado would not change his decision. Nenita also said that
Evangeline insinuated that if she (Nenita) had ten thousand pesos, the
case might be decided in her favor. Evangeline allegedly advised
Nenita to desist from claiming the properties of the testatrix because
she (Nenita) had no rights thereto and, should she persist, she might
lose her pension from the Federal Government.
Judge Honrado in his brief comment did not deal specifically with the
allegations of the complaint. He merely pointed to the fact that
Nenita did not appeal from the decree of probate and that in a
motion dated July 6, 1976 she asked for a thirty day period within
which to vacate the house of the testatrix.
Evangeline S. Yuipco in her affidavit said that she never talked with
Nenita and that the latter did not mention Evangeline in her letter
dated September 11, 1978 to President Marcos.
Evangeline branded as a lie Nenita's imputation that she (Evangeline)
prevented Nenita from having access to the record of the
testamentary proceeding. Evangeline was not the custodian of the
record. Evangeline " strongly, vehemently and flatly denied" Nenita's
charge that she (Evangeline) said that the sum of ten thousand pesos
was needed in order that Nenita could get a favorable decision.
Evangeline also denied that she has any knowledge of Nenita's
pension from the Federal Government.
The 1978 complaint against Judge Honorado was brought to attention
of this Court in the Court Administrator's memorandum of September
25, 1980. The case was referred to Justice Juan A. Sison of the Court of
Appeals for investigation, report and recommendation. He submitted
a report dated October 7, 1981.
On December 14, 1978, Nenita filed in the Court of Appeals against
Judge Honrado a petition for certiorari and prohibition wherein she
prayed that the will, the decree of probate and all the proceedings in
the probate case be declared void.
Attached to the petition was the affidavit of Domingo P. Aquino, who
notarized the will. He swore that the testatrix and the three attesting
witnesses did not appear before him and that he notarized the will
"just to accommodate a brother lawyer on the condition" that said
lawyer would bring to the notary the testatrix and the witnesses but
the lawyer never complied with his commitment.
The Court of Appeals dismissed the petition because Nenita's remedy
was an appeal and her failure to do so did not entitle her to resort to
the special civil action of certiorari (Suroza vs. Honrado, CA-G.R. No.
SP-08654, May 24, 1981).
Relying on that decision, Judge Honrado filed on November 17, 1981
a motion to dismiss the administrative case for having allegedly
become moot and academic.
We hold that disciplinary action should be taken against respondent
judge for his improper disposition of the testate case which might
have resulted in a miscarriage of justice because the decedent's legal
heirs and not the instituted heiress in the void win should have
inherited the decedent's estate.
A judge may be criminally liable or knowingly rendering an unjust
judgment or interlocutory order or rendering a manifestly unjust
judgment or interlocutory order by reason of inexcusable negligence
or ignorance (Arts. 204 to 206, Revised Penal Code).
Administrative action may be taken against a judge of the court of
first instance for serious misconduct or inefficiency ( Sec. 67, Judiciary
Law). Misconduct implies malice or a wrongful intent, not a mere error
of judgment. "For serious misconduct to exist, there must be reliable
evidence showing that the judicial acts complained of were corrupt
or inspired by an intention to violate the law, or were in persistent
disregard of well-known legal rules" (In re lmpeachment of Horrilleno,
43 Phil. 212, 214-215).
Inefficiency implies negligence, incompetence, ignorance and
carelessness. A judge would be inexcusably negligent if he failed to
observe in the performance of his duties that diligence, prudence and
circumspection which the law requires in the rendition of any public
service (In re Climaco, Adm. Case No. 134-J, Jan. 21, 1974, 55 SCRA
107, 119).
In this case, respondent judge, on perusing the will and noting that it
was written in English and was thumbmarked by an obviously illiterate
testatrix, could have readily perceived that the will is void.
In the opening paragraph of the will, it was stated that English was a
language "understood and known" to the testatrix. But in its
concluding paragraph, it was stated that the will was read to the
testatrix "and translated into Filipino language". (p. 16, Record of
testate case). That could only mean that the will was written in a
language not known to the illiterate testatrix and, therefore, it is void
because of the mandatory provision of article 804 of the Civil Code
that every will must be executed in a language or dialect known to
the testator. Thus, a will written in English, which was not known to the
Igorot testator, is void and was disallowed (Acop vs. Piraso, 52 Phil.
660).
The hasty preparation of the will is shown in the attestation clause and
notarial acknowledgment where Marcelina Salvador Suroza is
repeatedly referred to as the "testator" instead of "testatrix".
Had respondent judge been careful and observant, he could have
noted not only the anomaly as to the language of the will but also
that there was something wrong in instituting the supposed
granddaughter as sole heiress and giving nothing at all to her
supposed father who was still alive.
Furthermore, after the hearing conducted by respondent deputy clerk
of court, respondent judge could have noticed that the notary was
not presented as a witness.
In spite of the absence of an opposition, respondent judge should
have personally conducted the hearing on the probate of the will so
that he could have ascertained whether the will was validly executed.
Under the circumstances, we find his negligence and dereliction of
duty to be inexcusable.
WHEREFORE, for inefficiency in handling the testate case of Marcelina
S. Suroza, a fine equivalent to his salary for one month is imposed on
respondent judge (his compulsory retirement falls on December 25,
1981).
65

The case against respondent Yuipco has become moot and
academic because she is no longer employed in the judiciary. Since
September 1, 1980 she has been assistant city fiscal of Surigao City.
She is beyond this Court's disciplinary jurisdiction (Peralta vs. Firm Adm.
Matter No. 2044-CFI November 21, 1980, 101 SCRA 225).
SO ORDERED.