EXTRINSIC VALIDITY

[G.R. No. L-4067. November 29, 1951.]

In the Matter of the Will of ANTERO MERCADO, deceased. ROSARIO
GARCIA,petitioner, vs. JULIANA LACUESTA, ET AL., respondents.

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

Faustino B. Tobia, Juan I. Ines and Federico Tacason, for respondents.
SYLLABUS
1. WILLS; ATTESTATION CLAUSE; SIGNING BY ANOTHER OF TESTATOR'S NAME AT LATTER'S
DIRECTION. When the testator expressly caused another to sign the former's name, this fact
must be recited in the attestation clause. Otherwise, the will is fatally defective.
2. ID.; SIGNATURE OF TESTATOR; CROSS. Where the cross appearing on a will is not the
usual signature of the testator or even one of the ways by which he signed his name, that cross
cannot be considered a valid signature.
DECISION
PARAS, C.J p:
This is an appeal from a decision of the Court of Appeals disallowing the will of Antero Mercado
dated January 3, 1943. The will is written in the Ilocano dialect and contains the following
attestation clause:
"We, the undersigned, by these presents do declare that the foregoing testament of Antero
Mercado was signed by himself and also by us below his name and of this attestation clause
and that of the left margin of the three pages thereof. Page three the continuation of this
attestation clause; this will is written in Ilocano dialect which is spoken and understood by the
testator, and it bears the corresponding number in letter which compose of three pages and all
of them were signed in the presence of the testator and witnesses, and the witnesses in the
presence of the testator and all and each and every one of us witnesses.
"In testimony, whereof, we sign this testament, this the third day of January, one thousand
nine hundred forty three, (1943) A.D.
(Sgd.) "NUMERIANO EVANGELISTA (Sgd.) ROSENDO CORTES
(Sgd.) BIBIANA ILLEGIBLE"

The will appears to have been signed by Atty. Florentino Javier who wrote the name of Antero
Mercado, followed below by "A ruego del testador" and the name of Florentino Javier. Antero
Mercado is alleged to have written a cross immediately after his name. The Court of Appeals,
reversing the judgment of the Court of First Instance of Ilocos Norte, ruled that the attestation
clause failed (1) to certify that the will was signed on all the left margins of the three pages and
at the end of the will by Atty. Florentino Javier at the express request of the testator in the
presence of the testator and each and every one of the witnesses; (2) to certify that after the
signing of the name of the testator by Atty. Javier at the former's request said testator has
written a cross at the end of his name and on the left margin of the three pages of which the
will consists and at the end thereof; (3) to certify that the three witnesses signed the will in all
the pages thereon in the presence of the testator and of each other.
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In our opinion, the attestation clause is fatally defective for failing to state that Antero Mercado
caused Atty. Florentino Javier to write the testator's name under his express direction, as
required by section 618 of the Code of Civil Procedure. The herein petitioner (who is appealing
by way of certiorari from the decision of the Court of Appeals) argues, however, that there is no
need for such recital because the cross written by the testator after his name is a sufficient
signature and the signature of Atty. Florentino Javier is a surplusage. Petitioner's theory is that
the cross is as much a signature as a thumbmark, the latter having been held sufficient by this
Court in the cases of De Gala vs. Gonzales and Ona, 53 Phil., 104; Dolar vs.Diancin, 55 Phil.,
479; Payad vs. Tolentino, 62 Phil., 848; Neyra vs. Neyra, 76 Phil., 296 and Lopezvs. Liboro, 81
Phil., 429.
It is not here pretended that the cross appearing on the will is the usual signature of Antero
Mercado or even one of the ways by which he signed his name. After mature reflection, we are
not prepared to liken the mere sign of a cross to a thumbmark, and the reason is obvious. The
cross cannot and does not have the trustworthiness of a thumbmark.
What has been said makes it unnecessary for us to determine whether there is a sufficient
recital in the attestation clause as to the signing of the will by the testator in the presence of
the witnesses, and by the latter in the presence of the testator and of each other.
Wherefore, the appealed decision is hereby affirmed, with costs against the petitioner. So
ordered.
||| (In re: Mercado v. Lacuesta, G.R. No. L-4067, November 29, 1951)

Signature: first name

[G.R. No. 6845. September 1, 1914.]
YAP TUA, petitioner-appellee, vs. YAP CA KUAN and YAP CA LLU, objectors-appellants.

Chicote & Miranda for appellants.

O'Brien & DeWitt for appellee.
SYLLABUS
1. WILLS; FORM OF SIGNATURE; FIRST NAME OF TESTATOR ONLY. It has been held time
again that one who makes a will may sign the same by the use of a mark, the name having
been written by others. If the writing of a mark simply upon a will is sufficient indication of the
intention of the person to make and execute it, then certainly the writing of a portion or all of
the name ought to be accepted as a clear indication of intention to execute it. The man who
cannot write and who is obliged to make his mark simply therefore 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.
2. ID.; SIGNATURE OF TESTATOR AND WITNESSES. 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 signature made is not necessary. It is sufficient if the

signatures are made where it is possible for each of the necessary parties, if they so desire, to
see the signatures placed upon the will.
DECISION
JOHNSON, J p:
It appears from the record that on the 23d 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 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. At that hearing several witnesses were sworn. 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 Aselmo 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 has 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 a 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 sail will and desired to intervene asked that a guardian ad
litem be appointed to represented 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:
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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 negligent 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, Cleotilde and Cornelia Serrano.
Upon the 10th day of March, 1910, upon the hearing of said motion for 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 it support of that allegation, the protestants, during the rehearing,
presented a witness called Tomasa 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" in Exhibit A a similarity in the tracing to the "Tomasa" in Exhibit
1; that comparing the surname on Exhibit A with the surname on Exhibit 1 he found that the
character of the writing was thoroughly distinguished and different by the tracing and by the
direction of the letters in the said two exhibits; that from his experience and observation he
believed that the name "Tomasa" and "Yap Caong," appearing in the signature on Exhibit A
were written by different persons.
Puzon, being cross-questioned 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
4

1882; that since that time he had been telegraph operator for seventeen years and that he had
acted as an expert in handwriting 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 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 wills; 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 as 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 into 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 (the
witness) has 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 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;
that 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, also called as a witness 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
5

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 showned 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
placing their hands at her back; that when she started to write her name, he withdrew from the
bed on account of the heat inside the room; when he came back again to the sick bed the will
was signed as 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 contests 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 saw 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 bout 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 was given to her and she held it.
Cleotilde 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 de 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 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
6

she did not hear Cleotilde Mariano ask Tomasa to sign the will; that she did not hear Lorenzo
say to Tomasa that the second will was the same as the first; that Tomasa asked her to help
her to sit up and to put a pillow to her back when Zacarias gave her some paper or document
and asked her to sign it; that she saw Tomasa take hold of the pen and try to sign it but she
did not see the place she signed the document, for the reason that she left room; that she saw
Tomasa sign the document but did not see on what place of document she signed; that she
heard Tomasa ask for another notary public 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 bed 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 wanted to make another will; that he had seen the
witnesses sign the will; that the will was on the table near the bed of Tomasa; that Tomasa,
from where she was lying in the bed, could see the table where the witnesses had signed the
will.
During the rehearing certain other witnesses were also examined; in our opinion, however, it is
unnecessary 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 or 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 he mind in the execution of her
will, upon the other hand, there were several witnesses who testified that Lorenzo did not
7

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 the 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 the reference to the second assignment of error, to wit, that Tomasa Elizaga Yap Caong
was not 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 twentyfour 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 perfect right, by will, to dispose of her
property, in accordance with the provisions of law, up to the very last 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 testament 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 he 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 to the will, with the intention to sign the
same, that 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
8

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. & 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 Pennsylavania State, 220 (6 L. R. A., 353), and
cited by the appellees, which was known as "Knox's Appeal." In this case one Harriett S. Knox
died very suddenly on the 17th of October, 1888, at the residence of her father. After her death
a paper was found in her room, wholly in her handwriting, written with a lead pencil, upon
three sides of an ordinary folded sheet of note paper and bearing the signature simply of
"Herriett." 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 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 Allen, 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 he given name "Tomas," and that is sufficient to satisfy the
statute.
With reference to the fourth assignment of error, it may be said that the argument which has
preceded is sufficient to answer it also.
During the trial of the cause 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 her 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 or 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 signature placed
upon the will.
9

In case like the present where there is no 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 of 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.
||| (Yap Tua v. Yap Ca Kuan, G.R. No. 6845, September 01, 1914)

[G.R. No. 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.
SYLLABUS
1. WILLS; ATTESTATION. 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.
2. ID.; ID; TESTATOR'S SIGNATURE. The testator's signature is not necessary in the
attestation clause because this, as its name implies, appertains only to the witnesses and not to
the testator.
3. ID.; DIALECT IN WHICH WRITTEN; PRESUMPTION. 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 her will is written.
DECISION
AVANCEA, J p:
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 opponents 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.
10

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 unnecessary; and if they do not guaranty, same
signatures, affixed on another part of same sheet, would add nothing. We cannot assume that
the statute regards of such importance the place where the testator and the witnesses must
sign on the sheet that it would consider that their signatures written on the bottom do not
guaranty the authenticity of the sheet but, if repeated on the margin, give sufficient security.
In requiring that each and every page of a will must be numbered correlatively in letters placed
on the upper part of the sheet, it is likewise clear that the object of Act No. 2645 is to know
whether any sheet of the will has been removed. But, when all the dispositive parts of a will are
written .on one sheet only, the object of the statute disappears because the removal of this
single sheet, although unnumbered, cannot be hidden.
What has been said is also applicable to the attestation clause. Wherefore, without considering
whether or not this clause is an essential part of the will, we hold that in the one accompanying
the will in question, the signatures of the testatrix and of the three witnesses on the margin and
the numbering of the pages of the sheet are formalities not required by the statute. Moreover,
referring specially to the signature of the testatrix, we can add that same is not necessary in the
attestation clause because this, as its name implies, appertains only to the witnesses and not to
the testator since the latter does not attest, but executes, the will.
Synthesizing our opinion, we hold that in a will consisting of two sheets the first of which
contains all the testamentary dispositions and is signed at the bottom by the testator and three
witnesses and the second contains only the attestation clause and is signed also at the bottom
by the three witnesses, it is not necessary that both sheets be further signed on their margins
by the testator and the witnesses, or be paged.

The object of the solemnities surrounding the execution of wills is to close the door against bad
faith and fraud, to avoid substitution of wills and testaments and to guaranty their truth and
authenticity. Therefore the laws on this subject should be interpreted in such a way as to attain
these primordial 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 frustrative of the
testator's last will, must be disregarded.
As another ground for this appeal, it is alleged the records do not show that the testatrix 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
11

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.
||| (In re: Abangan v. Abangan, G.R. No. 13431, November 12, 1919)

Signing with a thumb mark; substantital compliance

[G.R. No. L-1787. August 27, 1948.]
Testacy of Sixto Lopez. JOSE S. LOPEZ, petitioner-appellee,vs. AGUSTIN
LIBORO, oppositor-appellant.

Tirona, Gutierrez & Adorable for appellant.

Ramon Diokno for appellee.
SYLLABUS
1. WILLS; PAGING; PURPOSE; OMISSION OF PAGE NUMBER SUPPLIED BY OTHER MEANS OF
IDENTIFICATION. The purpose of the law in prescribing the paging of wills is to guard
against fraud, and to afford means of preventing the substitution or of detecting the loss of any
of its pages. (Abangan vs. Abangan, 40 Phil., 476.) The omission to put a page number on a
sheet, if that be necessary, may be supplied by other forms of identification more trustworthy
than the conventional numeral words or characters.

2. ID.; EVIDENCE; WITNESSES, CREDIBILITY OF; CONTRADICTIONS ON INCIDENTS.

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 the witnesses can be supposed to have
perceived, or to recall in the same order in which they occurred. Far from being an evidence of
falsehood, the contradictions constitute an evidence of good faith.
3. ID.; SIGNATURE BY MARK. A statute requiring a will to be "signed" is satisfied if the
signature is made by the testator's mark.
4. ID.; EVIDENCE; ADMISSION OF FURTHER EVIDENCE AFTER PARTY HAS RESTED;
DISCRETION OF COURT. 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.
5. ID.; ID.; ADMISSION OF FURTHER EVIDENCE AFTER MOTION FOR NONSUIT OF DEMURRER
TO EVIDENCE; DISCRETION OF COURT. 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.
6. ID.; ID.; EVIDENCE ALLOWABLE AFTER DIRECT PROOFS. After the parties have produced
their respective direct proofs, they are allowed to offer rebutting evidence only, but the court,
for good reasons, in the furtherance of justice, may permit them to offer evidence upon their
12

original case, and its ruling will not be disturbed in the appellate court where no abuse of
discretion appears. (Siuliong & 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 correct
evidence previously offered.
7. ID.; LANGUAGE; KNOWLEDGE OF TESTATOR NEED NOT BE EXPRESSED IN WILL; PROOF
"ALIUNDE." There is no statutory requirement that the testator's understanding of the
language used in the will be expressed therein. It is a matter that may be established by
proof aliunde.
DECISION
TUASON, J p:

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 to guard against fraud, and to afford
means of preventing the substitution or of detecting 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 numeral 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 maker's property. Again, as page two
contains only the two lines above mentioned, the attestation clause, the mark of the testator
13

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 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 questionings, 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 committed 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 ademurrer 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 & 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 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.
14

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.
||| (Lopez v. Liboro, G.R. No. L-1787, August 27, 1948)

Signing with a cross

[G.R. No. L-4067. November 29, 1951.]
In the Matter of the Will of ANTERO MERCADO, deceased. ROSARIO
GARCIA, petitioner, vs. JULIANA LACUESTA, ET AL., respondents.

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

Faustino B. Tobia, Juan I. Ines and Federico Tacason, for respondents.
SYLLABUS
1. WILLS; ATTESTATION CLAUSE; SIGNING BY ANOTHER OF TESTATOR'S NAME AT LATTER'S
DIRECTION. When the testator expressly caused another to sign the former's name, this fact
must be recited in the attestation clause. Otherwise, the will is fatally defective.
2. ID.; SIGNATURE OF TESTATOR; CROSS. Where the cross appearing on a will is not the
usual signature of the testator or even one of the ways by which he signed his name, that cross
cannot be considered a valid signature.
DECISION
PARAS, C.J p:
This is an appeal from a decision of the Court of Appeals disallowing the will of Antero Mercado
dated January 3, 1943. The will is written in the Ilocano dialect and contains the following
attestation clause:
"We, the undersigned, by these presents do declare that the foregoing testament of Antero
Mercado was signed by himself and also by us below his name and of this attestation clause
and that of the left margin of the three pages thereof. Page three the continuation of this
attestation clause; this will is written in Ilocano dialect which is spoken and understood by the
testator, and it bears the corresponding number in letter which compose of three pages and all
of them were signed in the presence of the testator and witnesses, and the witnesses in the
presence of the testator and all and each and every one of us witnesses.

15

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

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

(Sgd.) BIBIANA ILLEGIBLE"

The will appears to have been signed by Atty. Florentino Javier who wrote the name of Antero
Mercado, followed below by "A ruego del testador" and the name of Florentino Javier. Antero
Mercado is alleged to have written a cross immediately after his name. The Court of Appeals,
reversing the judgment of the Court of First Instance of Ilocos Norte, ruled that the attestation
clause failed (1) to certify that the will was signed on all the left margins of the three pages and
at the end of the will by Atty. Florentino Javier at the express request of the testator in the
presence of the testator and each and every one of the witnesses; (2) to certify that after the
signing of the name of the testator by Atty. Javier at the former's request said testator has
written a cross at the end of his name and on the left margin of the three pages of which the
will consists and at the end thereof; (3) to certify that the three witnesses signed the will in all
the pages thereon in the presence of the testator and of each other.
In our opinion, the attestation clause is fatally defective for failing to state that Antero Mercado
caused Atty. Florentino Javier to write the testator's name under his express direction, as
required by section 618 of the Code of Civil Procedure. The herein petitioner (who is appealing
by way of certiorari from the decision of the Court of Appeals) argues, however, that there is no
need for such recital because the cross written by the testator after his name is a sufficient
signature and the signature of Atty. Florentino Javier is a surplusage. Petitioner's theory is that
the cross is as much a signature as a thumbmark, the latter having been held sufficient by this
Court in the cases of De Gala vs. Gonzales and Ona, 53 Phil., 104; Dolar vs. Diancin, 55 Phil.,
479; Payad vs.Tolentino, 62 Phil., 848; Neyra vs. Neyra, 76 Phil., 296 and Lopez vs.Liboro, 81
Phil., 429.
It is not here pretended that the cross appearing on the will is the usual signature of Antero
Mercado or even one of the ways by which he signed his name. After mature reflection, we are
not prepared to liken the mere sign of a cross to a thumbmark, and the reason is obvious. The
cross cannot and does not have the trustworthiness of a thumbmark.
What has been said makes it unnecessary for us to determine whether there is a sufficient
recital in the attestation clause as to the signing of the will by the testator in the presence of
the witnesses, and by the latter in the presence of the testator and of each other.
Wherefore, the appealed decision is hereby affirmed, with costs against the petitioner. So
ordered.
||| (In re: Mercado v. Lacuesta, G.R. No. L-4067, November 29, 1951)

Attestation clause
[G.R. No. L-36033. November 5, 1982.]

16

IN THE MATTER OF THE PETITION FOR THE PROBATE OF THE WILL OF DOROTEA
PEREZ, (deceased): APOLONIO TABOADA, petitioner, vs. HON. AVELINO S. ROSAL, as
Judge of the Court of First Instance of Southern Leyte, (Branch III,
Maasin), respondent.

Erasmo M. Diola for petitioner.

Aurelio S. Rosal in his own behalf.
SYNOPSIS
Petitioner filed a petition for probate of the will of the late Dorotea Perez and presented as
evidence the alleged will and the testimony of one of the subscribing witnesses thereto.
However, the trial court disallowed the will for want of formality in its execution because the will
was signed at the bottom of the page solely by the testatrix and at the left hand margin by
three instrumental witnesses. Respondent judge interpreted Article 805 of the Civil Code to
require that, for a notarial will to be valid, it is not enough that only the testatrix signs at the
"end" of the will but all the three subscribing witnesses must also sign at the same place or at
the end, in the presence of the testatrix and of one another, because the attesting witnesses to
the will attest not merely the will itself but also the signature of the testator. Petitioner's motion
for reconsideration and subsequent motion for the appointment of special administrator were
likewise denied.
On certiorari, the Supreme Court held a) that the objects of attestation and subscription were
fully met and satisfied in the present case when the instrumental witnesses signed at the left
margin of the sole page which contains all the testamentary dispositions, especially so when the
will was properly identified by a subscribing witness to be the same will executed by the
testatrix; and b) that the failure of the attestation clause to state the number of pages used in
writing the will would have been a fatal defect were it not for the fact that it is really and
actually composed of only two pages duly signed by the testatrix and her instrumental
witnesses.
Petition granted. Assailed orders of probate court set aside. Respondent court is ordered to
allow probate of the will and to conduct further proceedings.
SYLLABUS
1. CIVIL LAW; WILLS AND TESTAMENTS; NOTARIAL WILL; FORMALITIES; ATTESTATION AND
SUBSCRIPTION; DEFINED. Under Article 805 of the Civil Code, the will must be subscribed or
signed at its end by the testator himself or by the testator's name written by another person in
his presence, and by his express direction, and attested and subscribed by three or more
credible witnesses in the presence of the testator and of one another. Attestation consists in
witnessing the testator's execution of the will in order to see and take note mentally that those
things are done which the statute requires for the execution of a will and that the signature of
the testator exists as a fact. On the other hand, subscription is the signing of the witnesses'
names upon the same paper for the purpose of identification of such paper as the will which
was executed by the testator (Ragsdale v. Hill, 269 SW 2d 911).
2. ID.; ID.; ID.; ID.; ID.; FULLY COMPLIED WITH IN CASE AT BAR. The objects of
attestation and of subscription were fully met and satisfied in the present case when the
instrumental witnesses signed at the left margin of the sole page which contains all the
testamentary dispositions, especially so when the will was properly identified by subscribing
17

witness Vicente Timkang to be the same will executed by the testatrix. There was no question
of fraud or substitution behind the questioned order.
3. ID.; ID.; ID.; ID.; TREND TOWARDS LIBERAL CONSTRUCTION. While perfection in the
drafting of a will may be desirable, unsubstantial departure from the usual forms should be
ignored, especially where the authenticity of the will is not assailed. (Gonzales vs. Gonzales, 90
Phil. 444, 449) The law is to be liberally construed, "the underlying and fundamental objective
permeating the provision on the law on wills in this project consists in the liberalization of the
manner of their execution with the end in view of giving the testator more freedom in
expressing his last wishes but with sufficient safeguards and restrictions to prevent the
commission of fraud and the exercise of undue and improper pressure and influence upon the
testator. This objective is in accord with the modern tendency in respect to the formalities in
the execution of a will" (Report of the Code Commission, p. 103).

4. ID.; ID.; ID.; ID.; ATTESTATION CLAUSE; FAILURE TO STATE THE NUMBER OF PAGES
USED IN WRITING THE WILL IS FATAL; EXCEPTION; CASE AT BAR. The failure of the will's
attestation clause to state the number of pages used in writing the will would have been a fatal
defect were it not for the fact that, in this case, it is discernible from the entire will that it is
really and actually composed of only two pages duly signed by the testatrix and her
instrumental witnesses (See Singson vs. Florentino, et al. (192 Phil. 161, 1641 and Icasiano vs.
Icasiano, [11 SCRA 422, 429].)
DECISION
GUTIERREZ, JR., J p:
This is a petition for review of the orders issued by the Court of First Instance of Southern
Leyte, Branch III, in Special Proceedings No. R-1713, entitled "In the Matter of the Petition for
Probate of the Will of Dorotea Perez, Deceased; Apolonio Taboada, Petitioner," which denied
the probate of the will, the motion for reconsideration and the motion for appointment of a
special administrator.
In the petition for probate filed with the respondent court, the petitioner attached the alleged
last will and testament of the late Dorotea Perez. Written in Cebuano-Visayan dialect, the will
consists of two pages. The first page contains the entire testamentary dispositions and is signed
at the end or bottom of the page by the testatrix alone and at the left hand margin by the three
(3) instrumental witnesses. The second page which contains the attestation clause and the
acknowledgment is signed at the end of the attestation clause by the three 13) attesting
witnesses and at the left hand margin by the testatrix.

Since no opposition was filed after the petitioner's compliance with the requirement of
publications, the trial court commissioned the branch clerk of court to receive the petitioner's
evidence. Accordingly, the petitioner submitted his evidence and presented Vicente Timkang,
one of the subscribing witnesses to the will, who testified on its genuineness and due
execution.
The trial court, thru then Presiding Judge Ramon C. Pamatian issued the questioned order
denying the probate of the will of Dorotea Perez for want of a formality in its execution. In the
same order, the petitioner was also required to submit the names of the intestate heirs with
their corresponding addresses so that they could be properly notified and could intervene in the
summary settlement of the estate.
18

Instead of complying with the order of the trial court, the petitioner filed a manifestation and/or
motion ex parte praying for a thirty-day period within which to deliberate on any step to be
taken as a result of the disallowance of the will. He also asked that the ten-day period required
by the court to submit the names of intestate heirs with their addresses be held in abeyance.
The petitioner filed a motion for reconsideration of the order denying the probate of the will.
However, the motion together with the previous manifestation and/or motion could not be
acted upon by the Honorable Ramon C. Pamatian due to his transfer to his new station at Pasig,
Rizal. The said motions or incidents were still pending resolution when respondent Judge
Avelino S. Rosal assumed the position of presiding judge of the respondent court.
Meanwhile, the petitioner filed a motion for the appointment of special administrator.
Subsequently, the new Judge denied the motion for reconsideration as well as the manifestation
and/or motion filed ex parte. In the same order of denial, the motion for the appointment of
special administrator was likewise denied because of the petitioner's failure to comply with the
order requiring him to submit the names of the intestate heirs and their addresses.
The petitioner decided to file the present petition.
For the validity of a formal notarial will, does Article 805 of the Civil Code require that the
testatrix and all the three instrumental and attesting witnesses sign at the end of the will and in
the presence of the testatrix and of one another?
Article 805 of the Civil Code provides:
"Every will, other than a holographic will, must be subscribed at the end thereof by the testator
himself or by the testator's name written by some other person in his presence, and by his
express direction, and attested and subscribed by three or more credible witnesses in the
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 with and 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."
The respondent Judge interprets the above-quoted provision of law to require that, for a
notarial will to be valid, it is not enough that only the testatrix signs at the "end" but all the
three subscribing witnesses must also sign at the same place or at the end, in the presence of
the testatrix and of one another because the attesting witnesses to a will attest not merely the
will itself but also the signature of the testator. It is not sufficient compliance to sign the page,
where the end of the will is found, at the left hand margin of that page.

19

On the other hand, the petitioner maintains that Article 805 of the Civil Code does not make it a
condition precedent or a matter of absolute necessity for the extrinsic validity of the will that
the signatures of the subscribing witnesses should be specifically located at the end of the will
after the signature of the testatrix. He contends that it would be absurd that the legislature
intended to place so heavy an import on the space or particular location where the signatures
are to be found as long as this space or particular location wherein the signatures are found is
consistent with good faith and the honest frailties of human nature.
We find the petition meritorious.
Undoubtedly, under Article 805 of the Civil Code, the will must be subscribed or signed at its
end by the testator himself or by the testator's name written by another person in his presence,
and by his express direction, and attested and subscribed by three or more credible witnesses
in the presence of the testator and of one another.
It must be noted that the law uses the terms attested and subscribed. Attestation consists in
witnessing the testator's execution of the will in order to see and take note mentally that those
things are done which the statute requires for the execution of a will and that the signature of
the testator exists as a fact. On the other hand, subscription is the signing of the witnesses'
names upon the same paper for the purpose of identification of such paper as the will which
was executed by the testator. (Ragsdale v. Hill, 269 SW 2d 911).
Insofar as the requirement of subscription is concerned, it is our considered view that the will in
this case was subscribed in a manner which fully satisfies the purpose of identification.
The signatures of the instrumental witnesses on the left margin of the first page of the will
attested not only to the genuineness of the signature of the testatrix but also the due execution
of the will as embodied in the attestation clause.
While perfection in the drafting of a will may be desirable, unsubstantial departure from the
usual forms should be ignored, especially where the authenticity of the will is not assailed.
(Gonzales v. Gonzales, 90 Phil. 444, 449).
The law is to be liberally construed, "the underlying and fundamental objective permeating the
provisions on the law on wills in this project consists in the liberalization of the manner of their
execution with the end in view of giving the testator more freedom in expressing his last wishes
but with sufficient safeguards and restrictions to prevent the commission of fraud and the
exercise of undue and improper pressure and influence upon the testator. This objective is in
accord with the modern tendency in respect to the formalities in the execution of a will" (Report
of the Code Commission, p. 103).
Parenthetically, Judge Ramon C. Pamatian stated in his questioned order that were it not for
the defect in the place of signatures of the witnesses, he would have found the testimony
sufficient to establish the validity of the will.
The objects of attestation and of subscription were fully met and satisfied in the present case
when the instrumental witnesses signed at the left margin of the sole page which contains all
the testamentary dispositions, especially so when the will was properly identified by subscribing
witness Vicente Timkang to be the same will executed by the testatrix. There was no question
of fraud or substitution behind the questioned order. prLL
We have examined the will in question and noticed that the attestation clause failed to state the
number of pages used in writing the will. This would have been a fatal defect were it not for the
20

fact that, in this case, it is discernible from the entire will that it is really and actually composed
of only two pages duly signed by the testatrix and her instrumental witnesses. As earlier stated,
the first page which contains the entirety of the testamentary dispositions is signed by the
testatrix at the end or at the bottom while the instrumental witnesses signed at the left margin.
The other page which is marked as "Pagina dos" comprises the attestation clause and the
acknowledgment. The acknowledgment itself states that "This Last Will and Testament consists
of two pages including this page."
In Singson v. Florentino, et al. (92 Phil. 161, 164), this Court made the following observations
with respect to the purpose of the requirement that the attestation clause must state the
number of pages used:
"The law referred to is Article 618 of the Code of Civil Procedure, as amended by Act No. 2645,
which requires that the attestation clause shall state the number of pages or sheets upon which
the will is written, which requirement has been held to be mandatory as an effective safeguard
against the possibility of interpolation or omission of some of the pages of the will to the
prejudice of the heirs to whom the property is intended to be bequeathed (In re will of
Andrada, 42 Phil. 180; Uy Coque vs. Navas L. Sioca, 43 Phil. 405; Gumbanvs. Gorecho, 50 Phil.
30; Quinto vs. Morata, 54 Phil. 481; Echevarria vs. Sarmiento, 66 Phil. 611). The ratio
decidendi of these cases seems to be that the attestation clause must contain a statement of
the number of sheets or passes composing the will and that if this is missing or is omitted, it
will have the effect of invalidating the will if the deficiency cannot be supplied, not by
evidence aliunde, but by a consideration or examination of the will itself. But here the situation
is different. While the attestation clause does not state the number of sheets or pages upon
which the will is written, however, the last part of the body of the will contains a statement that
it is composed of eight pages, which circumstance in our opinion takes this case out of the rigid
rule of construction and places it within the realm of similar cases where a broad and more
liberal view has been adopted to prevent the will of the testator from being defeated by purely
technical considerations."

Icasiano v. Icasiano (11 SCRA 422, 429) has the following ruling which applies a similar liberal
approach: Cdpr
" . . . Impossibility of substitution of this page is assured not only (sic) the fact that the testatrix
and two other witnesses, did sign the defective page, but also by its bearing the coincident
imprint of the seal of the notary public before whom the testament was ratified by testatrix and
all three witnesses. The law should not be so strictly and literally interpreted as to penalize the
testatrix on account of the inadvertence of a single witness over whose conduct she had no
control, where the purpose of the law to guarantee the identity of the testament and its
component pages is sufficiently attained, no intentional or deliberate deviation existed, and the
evidence on record attest to the full observance of the statutory requisites. Otherwise, as stated
in Vda. de Gil. vs. Murciano, 49 Off. Gaz 1459, at 1479 (decision on reconsideration) 'witnesses
may sabotage the will by muddling or bungling it or the attestation clause.'"
WHEREFORE, the present petition is hereby granted. The orders of the respondent Court which
denied the probate of the will, the motion for reconsideration of the denial of probate, and the
motion for appointment of a special administrator are set aside. The respondent court is
ordered to allow the probate of the will and to conduct further proceedings in accordance with
this decision. No pronouncement of costs.
SO ORDERED.
21

||| (In Re: Taboada v. Rosal, G.R. No. L-36033, November 05, 1982)

in the presence
[G.R. No. L-5971. February 27, 1911.]
BEATRIZ NERA, ET AL., plaintiffs-appellees, vs. NARCISA RIMANDO, defendant-appellant.

Valerio Fontanilla and Andres Asprer for appellant.

Anacleto Diaz for appellees.
SYLLABUS
1. EXECUTION OF WILLS; POSITION OF TESTATOR AND WITNESS WHEN WILL IS
SUBSCRIBED. The position of testator and of the witnesses to a will, at the moment of the
subscription by each, must be such that they may see each other sign if they choose to do so.
2. ID.; ID.; SIGNING IN THE PRESENCE OF EACH OTHER. The question whether the testator
and the subscribing witnesses to an alleged will sign the instrument in the presence of each
other does not depend upon proof of the fact that their eyes were actually cast upon the paper
at the moment of its subscription by each of them, but whether at that moment existing
conditions and the position of the parties, with relation to each other, were such that by merely
casting their eyes in the proper direction they could have seen each other sign.
3. ID.; ID.; ID.; ONE WITNESS IN OUTER ROOM WHEN WH.L IS SIGNED. If one subscribing
witness to a will is shown to have been in an outer room at the time when the testator and the
other witnesses attach their signatures to the instrument in an inner room, the will would be
held invalid the attaching of the said signatures, under such circumstances, not being done
"in the presence" of the witness in the outer room.
DECISION
CARSON, J p:
The only question raised by the evidence in this case as to the due execution of the instrument
propounded as a will in the court below, is whether one of the subscribing witnesses was
present in the small room where it was executed at the time when the testator and the other
subscribing witnesses attached their signatures; or whether at that time he was outside, some
eight or ten feet away, in a large room connecting with the smaller room by a doorway, across
which was hung a curtain which made it impossible for one in the outside room to see the
testator and the other subscribing witnesses in the act of attaching their signatures to the
instrument.
A majority of the members of the court is of opinion that this subscribing witness was in the
small room with the testator and the other subscribing witnesses at the time when they
attached their signatures to the instrument, and this finding, of course, disposes of the appeal
and necessitates the affirmance of the decree admitting the document to probate as the last
will and testament of the deceased.
The trial judge does not appear to have considered the determination of this question of fact of
vital importance in the determination of this case, as he was of opinion that under the doctrine
laid down in the case of Jaboneta vs. Gustilo (5 Phil. Rep., 541) the alleged fact that one of the
22

subscribing witnesses was in the outer room when the testator and the other describing
witnesses signed the instrument in the inner room, had it been proven, would not be sufficient
in itself to invalidate the execution of the will. But we are unanimously of opinion that had this
subscribing witness been proven to have been in the outer room at the time when the testator
and the other subscribing witnesses attached their signatures to the instrument in the inner
room, it would have been invalid as a will, the attaching of those signatures under
circumstances not being done "in the presence" of the witness in the outer room. This because
the line of vision from this witness to the testator and the other subscribing witnesses would
necessarily have been impeded by the curtain separating the inner from the outer one "at the
moment of inscription of each signature."
In the case just cited, on which the trial court relied, we held that:
"The true test of presence of the testator and the witnesses in the execution of a will is not
whether they actually saw each other sign, but whether they might have been seen each other
sign, had they chosen to do so, considering their mental and physical condition and position
with relation to each other at the moment of inscription of each signature."
But it is especially to be noted that the position of the parties with relation to each other at the
moment of the subscription of each signature, must be such that they may see each other sign
if they choose to do so. This, of course, does not mean that the testator and the subscribing
witnesses may be held to have executed the instrument in the presence of each other if it
appears that they would not have been able to see each other sign at that moment, without
changing their relative positions or existing conditions. The evidence in the case relied upon by
the trial judge discloses that "at the moment when the witness Javellana signed the document
he was actually and physically present and in such position with relation to Jaboneta that he
could see everything that took place by merely casting his eyes in the proper direction
and without any physical obstruction to prevent his doing so." And the decision merely laid
down the doctrine that the question whether the testator and the subscribing witnesses to an
alleged will sign the instrument in the presence of each other does not depend upon proof of
the fact that their eyes were actually cast upon the paper at the moment of its subscription by
each of them, but that at that moment existing conditions and their position with relation to
each other were such that by merely casting the eyes in the proper direction they could have
seen each other sign. To extend the doctrine further would open the door to the possibility of
all manner of fraud, substitution, and the like, and would defeat the purpose for which this
particular condition is prescribed in the code as one of the requisites in the execution of a will.
The decree entered by the court below admitting the instrument propounded therein to probate
as the last will and testament of Pedro Rimando, deceased, is affirmed with costs of this
instance against the appellant.

Arellano, C.J., Mapa, Moreland and Trent, JJ., concur.

||| (Nera v. Rimando, G.R. No. L-5971, February 27, 1911)

SUBSTANTIVE OR INTRINSIC VALIDITY

Wife had an illicit relationship with her husbands brother while husband was in the
US
[G.R. No. 124371. November 23, 2000.]
23

PAULA T. LLORENTE, petitioner, vs. COURT OF APPEALS and ALICIA F.

LLORENTE, respondents.

E.A. Dacanay for petitioner.

Pardalis, Navarro & Sales for private respondents.
SYNOPSIS
The deceased Lorenzo N. Llorente was an enlisted serviceman of the United States Navy from
1927 to 1957 and a naturalized American citizen. On February 22, 1937, Lorenzo married
petitioner Paula Llorente. Before the outbreak of the Pacific War, Lorenzo departed for the
United States and Paula stayed in the conjugal home in barrio Antipolo, Nabua, Camarines Sur.
When Lorenzo returned to the Philippines to visit his wife in 1945, he discovered that his wife
Paula was pregnant and was "living in" and having an adulterous relationship with his brother,
Ceferino Llorente. Lorenzo refused to forgive Paula and live with her. Lorenzo returned to the
United States and filed for divorce with the Superior Court of the State of California in and for
the County of San Diego. Paula was represented by counsel, John Riley, and actively
participated in the proceedings. The Superior Court of the State of California, for the County of
San Diego found all factual allegations to be true and issued an interlocutory judgment of
divorce. The divorce decree became final in 1952. On January 16, 1958, Lorenzo married Alicia
F. Llorente in Manila. Apparently, Alicia had no knowledge of the first marriage even if they
resided in the same town as Paula, who did not oppose the marriage or cohabitation. From
1958 to 1985, Lorenzo and Alicia lived together as husband and wife and produced three
children, Raul, Luz and Beverly, all surnamed Llorente. On March 13, 1981, Lorenzo executed a
Last Will and Testament. In the will, Lorenzo bequeathed all his property to Alicia and their
three children. On December 14, 1983, Lorenzo filed with the Regional Trial Court, Iriga,
Camarines Sur, a petition for the probate and allowance of his last will and testament wherein
Lorenzo moved that Alicia be appointed Special Administratrix of his estate. The trial court
admitted the will to probate. On June 11, 1985, before the proceedings could be terminated,
Lorenzo died. Paula filed with the same court a petition for letters of administration over
Lorenzo's estate in her favor. Alicia also filed in the testate proceeding a petition for the
issuance of letters testamentary. The trial court denied Alicia's petition and ruled that the
divorce decree granted to the late Lorenzo Llorente was void and inapplicable in the Philippines,
therefore, her marriage to Lorenzo was likewise void. The trial court appointed Paula Llorente
as legal administrator of the estate of the deceased, Lorenzo Llorente. Respondent Alicia filed
with the trial court a motion for reconsideration, but was denied. Alicia appealed to the Court of
Appeals. The appellate court promulgated its decision, affirming with modification the decision
of the trial court. The trial court declared Alicia as co-owner of whatever properties she and the
deceased Lorenzo may have acquired during the twenty-five (25) years of cohabitation.
Petitioner Paula moved for reconsideration, but was denied for lack of merit. Hence, the present
petition.
The Supreme Court reversed and set aside the ruling of the trial court and recognized as valid
and as a matter of comity the decree of divorce granted in favor of the deceased Lorenzo N.
Llorente by the Superior Court of the State of California in and for the County of San Diego,
made final on December 4, 1952. According to the Court, the "national law" indicated in Article
16 of the Civil Code cannot possibly apply to the general American law. There is no such law
governing the validity of testamentary provisions in the United States. Each State of the union
has its own law applicable to its citizens and in force only within the State. It can, therefore,
refer to no other than the law of the State of which the decedent was a resident and there was
24

also no showing that the application of the renvoidoctrine was called for or required by New
York State law. The Court also said that the clear intent of Lorenzo to bequeath his property to
his second wife and children by her was glaringly shown in the will he executed and the Court
did not wish to frustrate Lorenzo's wishes, since he was a foreigner, not covered by Philippine
laws on family rights and duties, status, condition and legal capacity. The Court remanded the
cases to the court of origin for determination of the intrinsic validity of Lorenzo N. Llorente's will
and determination of the parties' successional rights allowing proof of foreign law.
SYLLABUS
1. CIVIL LAW; PRIVATE INTERNATIONAL LAW; RENVOI DOCTRINE; NOT APPLICABLE IN CASE
AT BAR. True, foreign laws do not prove themselves in our jurisdiction and our courts are not
authorized to take judicial notice of them. Like any other fact, they must be alleged and proved.
While the substance of the foreign law was pleaded, the Court of Appeals did not admit the
foreign law. The Court of Appeals and the trial court called to the fore the renvoi doctrine,
where the case was "referred back" to the law of the decedent's domicile, in this case,
Philippine law. We note that while the trial court stated that the law of New York was not
sufficiently proven, in the same breath it made the categorical, albeit equally unproven
statement that "American law follows the 'domiciliary theory, hence, Philippine law applies when
determining the validity of Lorenzo's will. First, there is no such thing as one American law. The
"national law" indicated in Article 16 of the Civil Code cannot possibly apply to general American
law. There is no such law governing the validity of testamentary provisions in the United States.
Each State of the union has its own law applicable to its citizens and in force only within the
State. It can therefore refer to no other than the law of the State of which the decedent was a
resident. Second, there is no showing that the application of therenvoi doctrine is called for or
required by New York State law. The trial court held that the will was intrinsically invalid since it
contained dispositions in favor of Alice, who in the trial court's opinion was a mere paramour.
The trial court threw the will out, leaving Alice, and her two children, Raul and Luz, with
nothing. The Court of Appeals also disregarded the will. It declared Alice entitled to one half
() of whatever property she and Lorenzo acquired during their cohabitation, applying Article
144 of the Civil Code of the Philippines. The hasty application of Philippine law and the
complete disregard of the will, already probated as duly executed in accordance with the
formalities of Philippine law, is fatal, especially in light of the factual and legal circumstances
here obtaining.
2. ID.; ID.; VALIDITY OF FOREIGN DIVORCE; DIVORCE OBTAINED BY PETITIONER'S
HUSBAND ABROAD VALID AND RECOGNIZED BY PHILIPPINE LAWS AS A MATTER OF COMITY;
SETTLED DOCTRINES. In Van Dorn v.Romillo, Jr., we held that owing to the nationality
principle embodied in Article 15 of the Civil Code, only Philippine nationals are covered by the
policy against absolute divorces, the same being considered contrary to our concept of public
policy and morality. In the same case, the Court ruled that aliens may obtain divorces abroad,
provided they are valid according to their national law. Citing this landmark case, the Court held
in Quita v.Court of Appeals, that once proven that respondent was no longer a Filipino citizen
when he obtained the divorce from petitioner, the ruling in Van Dorn would become applicable
and petitioner could "very well lose her right to inherit" from him. In Pilapil v. Ibay-Somera, we
recognized the divorce obtained by the respondent in his country, the Federal Republic of
Germany. There, we stated that divorce and its legal effects may be recognized in the
Philippines insofar as respondent is concerned in view of the nationality principle in our civil law
on the status of persons. For failing to apply these doctrines, the decision of the Court of
Appeals must be reversed. We hold that the divorce obtained by Lorenzo H. Llorente from his
25

first wife Paula was valid and recognized in this jurisdiction as a matter of comity. Now, the
effects of this divorce (as to the succession to the estate of the decedent) are matters best left
to the determination of the trial court.
3. ID.; ID.; FORMALITIES OF WILL EXECUTED BY FOREIGN NATIONALS SHALL BE GOVERNED
BY PHILIPPINE LAW; DETERMINATION OF SUCCESSIONAL RIGHTS BEST PROVED BY FOREIGN
LAW WHICH MUST BE DULY PLEADED AND PROVED; CASE AT BAR. The clear intent of
Lorenzo to bequeath his property to his second wife and children by her is glaringly shown in
the will he executed. We do not wish to frustrate his wishes, since he was a foreigner, not
covered by our laws on "family rights and duties, status, condition and legal capacity." Whether
the will is intrinsically valid and who shall inherit from Lorenzo are issues best proved by foreign
law which must be pleaded and proved. Whether the will was executed in accordance with the
formalities required is answered by referring to Philippine law. In fact, the will was duly
probated. As a guide however, the trial court should note that whatever public policy or good
customs may be involved in our system of legitimes, Congress did not intend to extend the
same to the succession of foreign nationals. Congress specifically left the amount of
successional rights to the decedent's national law.
DECISION
PARDO, J p:

The Case
The case raises a conflict of laws issue.
What is before us is an appeal from the decision of the Court of Appeals 1modifying that of the
Regional Trial Court, Camarines Sur, Branch 35, Iriga City 2 declaring respondent Alicia F.
Llorente (hereinafter referred to as "Alicia"), as co-owners of whatever property she and the
deceased Lorenzo N. Llorente (hereinafter referred to as "Lorenzo") may have acquired during
the twenty-five (25) years that they lived together as husband and wife.

The Facts
The deceased Lorenzo N. Llorente was an enlisted serviceman of the United States Navy from
March 10, 1927 to September 30, 1957. 3
On February 22, 1937, Lorenzo and petitioner Paula Llorente (hereinafter referred to as "Paula")
were married before a parish priest, Roman Catholic Church, in Nabua, Camarines Sur. 4

Before the outbreak of the Pacific War, Lorenzo departed for the United States and Paula stayed
in the conjugal home in barrio Antipolo, Nabua, Camarines Sur. 5
On November 30, 1943, Lorenzo was admitted to United States citizenship and Certificate of
Naturalization No. 5579816 was issued in his favor by the United States District Court, Southern
District of New York. 6
Upon the liberation of the Philippines by the American Forces in 1945, Lorenzo was granted an
accrued leave by the U.S. Navy, to visit his wife and he visited the Philippines. 7 He discovered
that his wife Paula was pregnant and was "living in" and having an adulterous relationship with
his brother, Ceferino Llorente. 8

26

On December 4, 1945, Paula gave birth to a boy registered in the Office of the Registrar of
Nabua as "Crisologo Llorente," with the certificate stating that the child was not legitimate and
the line for the father's name was left blank. 9
Lorenzo refused to forgive Paula and live with her. In fact, on February 2, 1946, the couple
drew a written agreement to the effect that (1) all the family allowances allotted by the United
States Navy as part of Lorenzo's salary and all other obligations for Paula's daily maintenance
and support would be suspended; (2) they would dissolve their marital union in accordance
with judicial proceedings; (3) they would make a separate agreement regarding their conjugal
property acquired during their marital life; and (4) Lorenzo would not prosecute Paula for her
adulterous act since she voluntarily admitted her fault and agreed to separate from Lorenzo
peacefully. The agreement was signed by both Lorenzo and Paula and was witnessed by Paula's
father and stepmother. The agreement was notarized by Notary Public Pedro Osabel. 10

Lorenzo returned to the United States and on November 16, 1951 filed for divorce with the
Superior Court of the State of California in and for the County of San Diego. Paula was
represented by counsel, John Riley, and actively participated in the proceedings. On November
27, 1951, the Superior Court of the State of California, for the County of San Diego found all
factual allegations to be true and issued an interlocutory judgment of divorce. 11
On December 4, 1952, the divorce decree became final. 12
In the meantime, Lorenzo returned to the Philippines. CADHcI
On January 16, 1958, Lorenzo married Alicia F. Llorente in Manila. 13Apparently, Alicia had no
knowledge of the first marriage even if they resided in the same town as Paula, who did not
oppose the marriage or cohabitation. 14

From 1958 to 1985, Lorenzo and Alicia lived together as husband and wife.15 Their twenty-five
(25) year union produced three children, Raul, Luz and Beverly, all surnamed Llorente. 16
On March 13, 1981, Lorenzo executed a Last Will and Testament. The will was notarized by
Notary Public Salvador M. Occiano, duly signed by Lorenzo with attesting witnesses Francisco
Hugo, Francisco Neibres and Tito Trajano. In the will, Lorenzo bequeathed all his property to
Alicia and their three children, to wit:
"(1) I give and bequeath to my wife ALICIA R. FORTUNO exclusively my residential house and
lot, located at San Francisco, Nabua, Camarines Sur, Philippines, including ALL the personal
properties and other movables or belongings that may be found or existing therein;
"(2) I give and bequeath exclusively to my wife Alicia R. Fortuno and to my children, Raul F.
Llorente, Luz F. Llorente and Beverly F. Llorente, in equal shares, all my real properties
whatsoever and wheresoever located, specifically my real properties located at Barangay AroAldao, Nabua, Camarines Sur; Barangay Paloyon, Nabua, Camarines Sur; Barangay Baras, Sitio
Puga, Nabua, Camarines Sur; and Barangay Paloyon, Sitio Nalilidong, Nabua, Camarines Sur;
"(3) I likewise give and bequeath exclusively unto my wife Alicia R. Fortuno and unto my
children, Raul F. Llorente, Luz F. Llorente and Beverly F. Llorente, in equal shares, my real
properties located in Quezon City Philippines, and covered by Transfer Certificate of Title No.
188652; and my lands in Antipolo, Rizal, Philippines, covered by Transfer Certificate of Title
Nos. 124196 and 165188, both of the Registry of Deeds of the province of Rizal, Philippines;

27

"(4) That their respective shares in the above-mentioned properties, whether real or personal
properties, shall not be disposed of, ceded, sold and conveyed to any other persons, but could
only be sold, ceded, conveyed and disposed of by and among themselves;
"(5) I designate my wife ALICIA R. FORTUNO to be the sole executor of this my Last Will and
Testament, and in her default or incapacity of the latter to act, any of my children in the order
of age, if of age;
"(6) I hereby direct that the executor named herein or her lawful substitute should served (sic)
without bond;
"(7) I hereby revoke any and all my other wills, codicils, or testamentary dispositions heretofore
executed, signed, or published, by me;
"(8) It is my final wish and desire that if I die, no relatives of mine in any degree in the
Llorente's Side should ever bother and disturb in any manner whatsoever my wife Alicia R.
Fortunato and my children with respect to any real or personal properties I gave and
bequeathed respectively to each one of them by virtue of this Last Will and Testament." 17
On December 14, 1983, Lorenzo filed with the Regional Trial Court, Iriga, Camarines Sur, a
petition for the probate and allowance of his last will and testament wherein Lorenzo moved
that Alicia be appointed Special Administratrix of his estate. 18
On January 18, 1984, the trial court denied the motion for the reason that the testator Lorenzo
was still alive. 19
On January 24, 1984, finding that the will was duly executed, the trial court admitted the will to
probate. 20

On June 11, 1985, before the proceedings could be terminated, Lorenzo died. 21
On September 4, 1985, Paula filed with the same court a petition 22 for letters of
administration over Lorenzo's estate in her favor. Paula contended (1) that she was Lorenzo's
surviving spouse, (2) that the various property were acquired during their marriage, (3) that
Lorenzo's will disposed of all his property in favor of Alicia and her children, encroaching on her
legitime and 1/2 share in the conjugal property. 23
On December 13, 1985, Alicia filed in the testate proceeding (Sp. Proc. No. IR-755), a petition
for the issuance of letters testamentary. 24
On October 14, 1985, without terminating the testate proceedings, the trial court gave due
course to Paula's petition in Sp. Proc. No. IR-888. 25
On November 6, 13 and 20, 1985, the order was published in the newspaper "Bicol Star". 26
On May 18, 1987, the Regional Trial Court issued a joint decision, thus: ISaCTE
"Wherefore, considering that this court has so found that the divorce decree granted to the late
Lorenzo Llorente is void and inapplicable in the Philippines, therefore the marriage he
contracted with Alicia Fortunato on January 16, 1958 at Manila is likewise void. This being so
the petition of Alicia F. Llorente for the issuance of letters testamentary is denied. Likewise, she
is not entitled to receive any share from the estate even if the will especially said so her
relationship with Lorenzo having gained the status of paramour which is under Art. 739 (1).

28

"On the other hand, the court finds the petition of Paula Titular Llorente, meritorious, and so
declares the intrinsic disposition of the will of Lorenzo Llorente dated March 13, 1981 as void
and declares her entitled as conjugal partner and entitled to one-half of their conjugal
properties, and as primary compulsory heir, Paula T. Llorente is also entitled to one-third of the
estate and then one-third should go to the illegitimate children, Raul, Luz and Beverly, all
surname (sic) Llorente, for them to partition in equal shares and also entitled to the remaining
free portion in equal shares.
"Petitioner, Paula Llorente is appointed legal administrator of the estate of the deceased,
Lorenzo Llorente. As such let the corresponding letters of administration issue in her favor upon
her filing a bond in the amount (sic) of P100,000.00 conditioned for her to make a return to the
court within three (3) months a true and complete inventory of all goods, chattels, rights, and
credits, and estate which shall at any time come to her possession or to the possession of any
other person for her, and from the proceeds to pay and discharge all debts, legacies and
charges on the same, or such dividends thereon as shall be decreed or required by this court;
to render a true and just account of her administration to the court within one (1) year, and at
any other time when required by the court and to perform all orders of this court by her to be
performed.
"On the other matters prayed for in respective petitions for want of evidence could not be
granted.
"SO ORDERED." 27
In time, Alicia filed with the trial court a motion for reconsideration of the aforequoted
decision. 28

On September 14, 1987, the trial court denied Alicia's motion for reconsideration but modified
its earlier decision, stating that Raul and Luz Llorente are not children "legitimate or otherwise"
of Lorenzo since they were not legally adopted by him. 29 Amending its decision of May 18,
1987, the trial court declared Beverly Llorente as the only illegitimate child of Lorenzo, entitling
her to one-third (1/3) of the estate and one-third (1/3) of the free portion of the estate. 30

On September 28, 1987, respondent appealed to the Court of Appeals. 31

On July 31, 1995, the Court of Appeals promulgated its decision, affirming with modification the
decision of the trial court in this wise:
"WHEREFORE, the decision appealed from is hereby AFFIRMED with the MODIFICATION that
Alicia is declared as co-owner of whatever properties she and the deceased may have acquired
during the twenty-five (25) years of cohabitation.
"SO ORDERED." 32
On August 25, 1995, petitioner filed with the Court of Appeals a motion for reconsideration of
the decision. 33
On March 21, 1996, the Court of Appeals, 34 denied the motion for lack of merit.
Hence, this petition. 35

The Issue
29

Stripping the petition of its legalese and sorting through the various arguments raised, 36 the
issue is simple. Who are entitled to inherit from the late Lorenzo N. Llorente?
We do not agree with the decision of the Court of Appeals. We remand the case to the trial
court for ruling on the intrinsic validity of the will of the deceased.

The Applicable Law

The fact that the late Lorenzo N. Llorente became an American citizen long before and at the
time of: (1) his divorce from Paula; (2) marriage to Alicia; (3) execution of his will; and (4)
death, is duly established, admitted and undisputed.
Thus, as a rule, issues arising from these incidents are necessarily governed by foreign law.
The Civil Code clearly provides:

"ARTICLE 15. Laws relating to family rights and duties, or to the status, condition and legal
capacity of persons are binding upon citizens of the Philippines, even though living
abroad. SCcHIE
"ARTICLE 16. Real property as well as personal property is subject to the law of the country
where it is situated.
"However, intestate and testamentary succession, both with respect to the order of succession
and to the amount of successional rights and to the intrinsic validity of testamentary
provisions, shall be regulated by the national law of the person whose succession is under
consideration, whatever may be the nature of the property and regardless of the country
wherein said property may be found." (italics ours)

True, foreign laws do not prove themselves in our jurisdiction and our courts are not authorized
to take judicial notice of them. Like any other fact, they must be alleged and proved. 37
While the substance of the foreign law was pleaded, the Court of Appeals did not admit the
foreign law. The Court of Appeals and the trial court called to the fore the renvoi doctrine,
where the case was "referred back" to the law of the decedent's domicile, in this case,
Philippine law.
We note that while the trial court stated that the law of New York was not sufficiently proven, in
the same breath it made the categorical, albeit equally unproven statement that "American law"
follows the 'domiciliary theory' hence, Philippine law applies when determining the validity of
Lorenzo's will. 38

First, there is no such thing as one American law. The "national law" indicated in Article 16 of
the Civil Code cannot possibly apply to general American law. There is no such law governing
the validity of testamentary provisions in the United States. Each State of the union has its own
law applicable to its citizens and in force only within the State. It can therefore refer to no other
than the law of the State of which the decedent was a resident. 39 Second, there is no showing
that the application of the renvoidoctrine is called for or required by New York State law.
The trial court held that the will was intrinsically invalid since it contained dispositions in favor
of Alice, who in the trial court's opinion was a mereparamour. The trial court threw the will out,
leaving Alice, and her two children, Raul and Luz, with nothing.

30

The Court of Appeals also disregarded the will. It declared Alice entitled to one half (1/2) of
whatever property she and Lorenzo acquired during their cohabitation, applying Article 144 of
the Civil Code of the Philippines.
The hasty application of Philippine law and the complete disregard of the will, already probated
as duly executed in accordance with the formalities of Philippine law, is fatal, especially in light
of the factual and legal circumstances here obtaining.

Validity of the Foreign Divorce

In Van Dorn v. Romillo, Jr. 40 we held that owing to the nationality principle embodied in
Article 15 of the Civil Code, only Philippine nationals are covered by the policy against absolute
divorces, the same being considered contrary to our concept of public policy and morality. In
the same case, the Court ruled that aliens may obtain divorces abroad, provided they are valid
according to their national law.
Citing this landmark case, the Court held in Quita v. Court of Appeals, 41that once proven that
respondent was no longer a Filipino citizen when he obtained the divorce from petitioner, the
ruling in Van Dorn would become applicable and petitioner could "very well lose her right to
inherit" from him.
In Pilapil v. Ibay-Somera, 42 we recognized the divorce obtained by the respondent in his
country, the Federal Republic of Germany. There, we stated that divorce and its legal effects
may be recognized in the Philippines insofar as respondent is concerned in view of the
nationality principle in our civil law on the status of persons.
For failing to apply these doctrines, the decision of the Court of Appeals must be
reversed. 43 We hold that the divorce obtained by Lorenzo H. Llorente from his first wife Paula
was valid and recognized in this jurisdiction as a matter of comity. Now, the effects of this
divorce (as to the succession to the estate of the decedent) are matters best left to the
determination of the trial court.

Validity of the Will

The Civil Code provides:
"ARTICLE 17. The forms and solemnities of contracts, wills, and other public instruments shall
be governed by the laws ofthe country in which they are executed.
"When the acts referred to are executed before the diplomatic or consular officials of the
Republic of the Philippines in a foreign country, the solemnities established by Philippine laws
shall be observed in their execution." (italics ours)
The clear intent of Lorenzo to bequeath his property to his second wife and children by her is
glaringly shown in the will he executed. We do not wish to frustrate his wishes, since he was a
foreigner, not covered by our laws on "family rights and duties, status, condition and legal
capacity." 44
Whether the will is intrinsically valid and who shall inherit from Lorenzo are issues best proved
by foreign law which must be pleaded and proved. Whether the will was executed in
accordance with the formalities required is answered by referring to Philippine law. In fact, the
will was duly probated. HAICcD

31

As a guide however, the trial court should note that whatever public policy or good customs
may be involved in our system of legitimes, Congress did not intend to extend the same to the
succession of foreign nationals. Congress specifically left the amount of successional rights to
the decedent's national law. 45
Having thus ruled, we find it unnecessary to pass upon the other issues raised.

The Fallo
WHEREFORE, the petition is GRANTED. The decision of the Court of Appeals in CA-G. R. SP No.
17446 promulgated on July 31, 1995 is SET ASIDE.
In lieu thereof, the Court REVERSES the decision of the Regional Trial Court and RECOGNIZES
as VALID the decree of divorce granted in favor of the deceased Lorenzo N. Llorente by the
Superior Court of the State of California in and for the County of San Diego, made final on
December 4, 1952.
Further, the Court REMANDS the cases to the court of origin for determination of the intrinsic
validity of Lorenzo N. Llorente's will and determination of the parties' successional rights
allowing proof of foreign law with instructions that the trial court shall proceed with all
deliberate dispatch to settle the estate of the deceased within the framework of the Rules of
Court.
No costs.
SO ORDERED.
||| (Llorente v. Court of Appeals, G.R. No. 124371, November 23, 2000)

[G.R. No. L-23678. June 6, 1967.]

TESTATE ESTATE OF AMOS G. BELLIS, deceased, PEOPLE'S BANK & TRUST
COMPANY, executor, MARIA CRISTINA BELLIS and MIRIAM PALMA
BELLIS, oppositors-appellants, vs. EDWARD A. BELLIS, ET AL., heirs-appellees.

Vicente R. Macasaet and Jose D. Villena for oppositors-appellant.

Paredes, Poblador, Cruz & Nazareno for heirs-appellees E.A. Bellis, et al.
Quijano and Arroyo for heirs-appellees W. S. Bellis, et al.
J .R. Balonkita for appellees People's Bank & Trust Company.
Ozaeta, Gibbs & Ozaeta for appellee A. B. Allsman.
SYLLABUS
1. PRIVATE INTERNATIONAL LAW; LAW APPLICABLE WITH REFERENCE TO THE INTESTATE
AND TESTAMENTARY SUCCESSION OF AN ALIEN; SCOPE OF ARTS. 16 (2) AND 1039, CIVIL
CODE. Article 16, par. 2, and Article 1039 of the Civil Code, render applicable the national
law of the decedent, in intestate or testamentary successions, with regard to four items: (a) the
order of succession; (b) the amount of successional rights; (c) the intrinsic validity of the
provisions of the will; and (d) the capacity to succeed.

32

2. ID.; LEGITIMATES; FOREIGN NATIONALS. It is evident that whatever public policy or

good customs may be involved in our system of legitimates, Congress has not intended to
extend the same to the succession of foreign nationals. For its has chosen to leave, inter alia,
the amount of successional rights, to the decedent's national law. Specific provisions must
prevail over general ones.
3. ID.; ID.; ID.; FOREIGNER'S WILL; CASE AT BAR. Appellants point out that the decedent
executed two wills one to govern his Texas estate and the other his Philippine estate
arguing from this that he intended Philippine law to govern his Philippine estate. Assuming that
such was the decedent's intention in executing a separate Philippine will, it would not alter the
law, for as this Court ruled in the Miciano vs. Brimo (50 Phil., 867) case, a provision in a
foreigner's will to the effect that his properties shall be distributed in accordance with Philippine
law and not with his national law, is illegal and void for his national law cannot be ignored in
regard to those matters that Article 10 now Article 16 of the Civil Code states said national
law should govern. The parties admit that the decedent, Amos G. Bellis, was a citizen of the
State of Texas, U.S.A., and that under the laws of Texas, there are no forced heirs or
legitimates. Accordingly, since the intrinsic validity of the provision of the will and the amount of
successional rights are to be determined under Texas law, the Philippine law on legitimes
cannot be applied to the testacy of Amos G. Bellis.
DECISION
BENGZON, J.P., J p:
This is a direct appeal to us, upon a question purely of law, from an order of the Court of First
Instance of Manila dated April 30, 1964, approving the project of partition filed by the executor
in Civil Case No. 37089 therein.
The facts of the case are as follows:
Amos G. Bellis, born in Texas, was "a citizen of the State of Texas and of the United States." By
his first wife, Mary E. Mallen, whom he divorced, he had five legitimate children: Edward A.
Bellis, George Bellis (who pre-deceased him in infancy), Henry A. Bellis, Alexander Bellis and
Anna Bellis Allsman; by his second wife, Violet Kennedy, who survived him, he had three
legitimate children: Edwin G. Bellis, Walter S. Bellis and Dorothy Bellis; and finally, he had three
illegitimate children: Amos Bellis, Jr., Maria Cristina Bellis and Miriam Palma Bellis.
On August 5, 1952, Amos G. Bellis executed a will in the Philippines, in which he directed that
after all taxes, obligations, and expenses of administration are paid for, his distributable estate
should be divided, in trust, in the following order and manner: (a) $240,000.00 to his first wife,
Mary E. Mallen; (b) P120,000.00 to his three illegitimate children, Amos Bellis, Jr., Maria Cristina
Bellis, and Miriam Palma Bellis, or P40,000.00 each and (c) after the foregoing two items have
been satisfied, the remainder shall go to his seven surviving children by his first and second
wives, namely: Edward A. Bellis, Henry A. Bellis, Alexander Bellis, and Anna Bellis Allsman,
Edwin G. Bellis, Walter S. Bellis, and Dorothy E. Bellis, in equal shares.
Subsequently, or on July 8, 1958, Amos G. Bellis died, a resident of San Antonio, Texas, U.S.A.
His will was admitted to probate in the Court of First Instance of Manila on September 15,
1958.
The People's Bank and Trust Company, as executor of the will, paid all the bequests therein
including the amount of $240,000.00 in the form of shares of stock to Mary E. Mallen and to the
three (3) illegitimate children, Amos Bellis, Jr., Maria Cristina Bellis and Miriam Palma Bellis,
33

various amounts totalling P40,000.00 each in satisfaction of their respective legacies, or a total
of P120,000.00, which it released from time to time according as the lower court approved and
allowed the various motions or petitions filed by the latter three requesting partial advances on
account of their respective legacies.
On January 8, 1964, preparatory to closing its administration, the executor submitted and filed
its "Executor's Final Account, Report of Administration and Project of Partition" wherein it
reported, inter alia, the satisfaction of the legacy of Mary E. Mallen by the delivery to her of
shares of stock amounting to $240,000.00, and the legacies of Amos Bellis, Jr., Maria Cristina
Bellis and Miriam Palma Bellis in the amount of P40,000.00 each or a total of P120.000.00. In
the project of partition, the executor pursuant to the "Twelfth" clause of the testator's Last
Will and Testament divided the residuary estate into seven equal portions for the benefit of
the testator's seven legitimate children by his first and second marriages.

On January 17, 1964, Maria Cristina Bellis and Miriam Palma Bellis filed their respective
oppositions to the project of partition on the ground that they were deprived of their legitimes
as illegitimate children and, therefore, compulsory heirs of the deceased.
Amos Bellis, Jr. interposed no opposition despite notice to him, proof of service of which is
evidenced by the registry receipt submitted on April 27, 1964 by the executor. 1
After the parties filed their respective memoranda and other pertinent pleadings, the lower
court, on April 30, 1964, issued an order overruling the oppositions and approving the
executor's final account, report and administration and project of partition. Relying upon Art. 16
of the Civil Code, it applied the national law of the decedent, which in this case is Texas law,
which did not provide for legitimes.

Their respective motions for reconsideration having been denied by the lower court on June 11,
1964, oppositors-appellants appealed to this Court to raise the issue of which law must apply
Texas law or Philippine law.
In this regard, the parties do not submit the case on, nor even discuss, the doctrine of renvoi,
applied by this Court in Aznar vs. Christensen Garcia, L-16749, January 31, 1963. Said doctrine
is usually pertinent where the decedent is a national of one country, and a domicile of another.
In the present case, it is not disputed that the decedent was both a national of Texas and a
domicile thereof at the time of his death. 2 So that even assuming Texas has a conflict of law
rule providing that the domiciliary system (law of the domicile) should govern, the same would
not result in a reference back (renvoi) to Philippine law, but would still refer to Texas law.
Nonetheless, if Texas has a conflict of law rule adopting the situs theory (lex rei sitae) calling
for the application of the law of the place where the properties are situated, renvoi would arise,
since the properties here involved are found in the Philippines. In the absence, however, of
proof as to the conflict of law rule of Texas, it should not be presumed different from
ours. 3 Appellants' position is therefore not rested on the doctrine of renvoi. As stated, they
never invoked nor even mentioned it in their arguments. Rather, they argue that their case falls
under the circumstances mentioned in the third paragraph of Article 17 in relation to Article 16
of the Civil Code.
Article 16, par. 2, and Art. 1039 of the Civil Code, render applicable the national law of the
decedent, in intestate or testamentary successions, with regard to four items: (a) the order of
succession; (b) the amount of successional rights; (c) the intrinsic validity of the provisions of
the will; and (d) the capacity to succeed. They provide that
34

"Art 16. Real property as well as personal property is subject to the law of the country where it
is situated.
"However", intestate and testamentary successions, both with respect to the order of
succession and to the amount of successional rights and to the intrinsic validity of testamentary
provisions, shall be regulated by the national law of the person whose succession is under
consideration, whatever may be the nature of the property and regardless of the country
wherein said property may be found."
"Art. 1039. Capacity to succeed is governed by the law of the nation of the decedent."
Appellants would however counter that Article 17, paragraph three, of the Civil Code, stating
that
"Prohibitive laws concerning persons, their acts or property, and those which have for their
object public order, public policy and good customs shall not be rendered ineffective by laws, or
judgments promulgated, or by determinations or conventions agreed upon in a foreign
country."
prevails as the exception to Art. 16, par. 2 of the Civil Code aforequoted. This is not correct.
Precisely, Congress deleted the phrase, "notwithstanding the provisions of this and the next
preceding article" when they incorporated Art. 11 of the old Civil Code as Art. 17 of the new
Civil Code, while reproducing without substantial change the second paragraph of Art. 10 of the
old Civil Code as Art. 16 in the new. It must have been their purpose to make the second
paragraph of Art. 16 a specific provision in itself which must be applied in testate and intestate
successions. As further indication of this legislative intent, Congress added a new provision,
under Art. 1039, which decrees that capacity to succeed is to be governed by the national law
of the decedent.

It is therefore evident that whatever public policy or good customs may be involved in our
system of legitimes, Congress has not intended to extend the same to the succession of foreign
nationals. For it has specifically chosen to leave, inter alia, the amount of successional rights, to
the decedent's national Law. Specific provisions must prevail over general ones.
Appellants would also point out that the decedent executed two wills one to govern his Texas
estate and the other his Philippine estate arguing from this that he intended Philippine law to
govern his Philippine estate. Assuming that such was the decedent's intention in executing a
separate Philippine will, it would not alter the law, for as this Court ruled inMiciano vs.
Brimo, 50 Phil. 867, 870, a provision in a foreigner's will to the effect that his properties shall be
distributed in accordance with Philippine law and not with his national law, is illegal and void,
for his national law cannot be ignored in regard to those matters that Article 10 now Article
16 of the Civil Code states said national law should govern.
The parties admit that the decedent, Amos G. Bellis, was a citizen of the State of Texas, U.S.A.,
and that under the laws of Texas, there are no forced heirs or legitimes. Accordingly, since the
intrinsic validity of the provision of the will and the amount of successional rights are to be
determined under Texas law, the Philippine law on legitimes cannot be applied to the testacy of
Amos G. Bellis.
Wherefore, the order of the probate court is hereby affirmed in toto, with costs
against appellant. So ordered.
35

||| (Bellis v. Bellis, G.R. No. L-23678, June 06, 1967)

[G.R. No. 54919. May 30, 1984.]

POLLY CAYETANO, petitioner, vs. HON. TOMAS T.LEONIDAS, in his capacity as the
Presiding Judge of Branch XXXVIII, Court of First Instance of Manila and NENITA
CAMPOS PAGUIA, respondents.

Ermelo P. Guzman for petitioner.

Armando Z. Gonzales for private respondent.
SYLLABUS

1. REMEDIAL LAW; SPECIAL CIVIL ACTION; CERTIORARI; GRAVE ABUSE OF DISCRETION;

GRANT OF MOTION TO WITHDRAW OPPOSITION TO PROBATE OF WILL IN CASE AT BAR,
NOT A CASE OF. We find no grave abuse of discretion on the part of the respondent judge
when he allowed withdrawal of petitioner's opposition to the probate of the will. No proof was
adduced to support petitioner's contention that the motion to withdraw was secured through
fraudulent means and that Atty. Franco Loyola was not his counsel of record. The records show
that after the filing of the contested motion, the petitioner at a later date, filed a manifestation
wherein he confirmed that the Motion to Dismiss Opposition was his voluntary act and deed.
Moreover, at the time the motion was filed, the petitioner's former counsel, Atty. Jose P.
Lagrosa had long withdrawn from the case and had been substituted by Atty. Franco Loyola
who in turn filed the motion. The present petitioner cannot, therefore, maintain that the old
man's attorney of record was Atty. Lagrosa at the time of filing the motion. Since the
withdrawal was in order, the respondent judge acted correctly in hearing the probate of the will
ex-parte, there being no other opposition to the same.
2. ID.; SPECIAL PROCEEDINGS; PROBATE OF WILL; PROBATE COURT, SCOPE OF AUTHORITY.
As a general rule, the probate court's authority is limited only to the extrinsic validity of the
will, the due execution thereof, the testatrix's testamentary capacity and the compliance with
the requisites or solemnities prescribed by law. The intrinsic validity of the will normally comes
only after the court has declared that the will has been duly authenticated. However, where
practical considerations demand that the intrinsic validity of the will be passed upon, even
before it is probated, the court should meet the issue (Maninang, v. Court of Appeals, 114 SCRA
478).
3. CIVIL LAW; WILLS AND SUCCESSION; INTRINSIC VALIDITY OF WILLS GOVERNED BY THE
NATIONAL LAW OF THE DECEDENT; CASE AT BAR. It is a settled rule that as regards the
intrinsic validity of the provisions of the will, as provided for by Articles 16(2) and 1039 of the
Civil Code, the national law of the decedent must apply. In the case at bar, although on its face,
the will appeared to have preterited the petitioner and thus, the respondent judge should have
denied its probate outright, the private respondents have sufficiently established that Adoracion
Campos was, at the time of her death, an American citizen and a permanent resident of
Philadelphia, Pennsylvania, U.S.A.. Therefore, the law governing Adoracion Campos' will is the
law of Pennsylvania, U.S.A., which is the national law of the decedent. Under the Pennsylvania
law, no legitimes are provided for, and all the estate may be given away by the testatrix to a
complete stranger.

36

4. REMEDIAL LAW; SPECIAL PROCEEDINGS; SETTLEMENT OF ESTATE; COURT OF FIRST

INSTANCE OF THE PROVINCE WHERE THE ESTATE IS LOCATED HAS JURISDICTION. The
settlement of the estate of Adoracion Campos was correctly filed with the Court of First
Instance of Manila where she had an estate since it was alleged and proven the Adoracion at
the time of her death was a citizen and permanent resident of Pennsylvania, United States of
America and not a "usual resident of Cavite" as alleged by the petitioner.
5. ID.; ID.; ID.; ID.; PETITIONER ESTOPPED FROM QUESTIONING JURISDICTION OF COURT
IN CASE AT BAR. Petitioner is now estopped from questioning the jurisdiction of the probate
court in the petition for relief. It is a settled rule that a party cannot invoke the jurisdiction of a
court to secure affirmative relief, against his opponent and after failing to obtain such relief,
repudiate or question that same jurisdiction (See Saulog Transit, Inc. v. Hon. Manuel Lazaro, et
al., G.R. No. 63284, April 4, 1984).

DECISION
GUTIERREZ, JR., J p:
This is a petition for review on certiorari, seeking to annul the order of the respondent judge of
the Court of First Instance of Manila, Branch XXXVIII, which admitted to and allowed the
probate of the last will and testament of Adoracion C. Campos, after an ex-parte presentation of
evidence by herein private respondent. LLjur
On January 31, 1977, Adoracion C. Campos died, leaving her father, petitioner Hermogenes
Campos and her sisters, private respondent Nenita C. Paguia, Remedios C. Lopez and Marieta
C. Medina as the surviving heirs. As Hermogenes Campos was the only compulsory heir, he
executed an Affidavit of Adjudication under Rule 74, Section I of the Rules of Court whereby he
adjudicated unto himself the ownership of the entire estate of the deceased Adoracion Campos.
Eleven months after, on November 25, 1977, Nenita C. Paguia filed a petition for the reprobate
of a will of the deceased, Adoracion Campos, which was allegedly executed in the United States
and for her appointment as administratrix of the estate of the deceased testatrix.
In her petition, Nenita alleged that the testatrix was an American citizen at the time of her
death and was a permanent resident of 4633 Ditman Street, Philadelphia, Pennsylvania, U.S.A.;
that the testatrix died in Manila on January 31, 1977 while temporarily residing with her sister
at 2167 Leveriza, Malate, Manila; that during her lifetime, the testatrix made her last will and
testament on July 10, 1975, according to the laws of Pennsylvania, U.S.A., nominating Wilfredo
Barzaga of New Jersey as executor; that after the testatrix' death, her last will and testament
was presented, probated, allowed, and registered with the Registry of Wills at the County of
Philadelphia, U.S.A., that Clement L. McLaughlin, the administrator who was appointed after Dr.
Barzaga had declined and waived his appointment as executor in favor of the former, is also a
resident of Philadelphia, U.S.A., and that therefore, there is an urgent need for the appointment
of an administratrix to administer and eventually distribute the properties of the estate located
in the Philippines. Cdpr
On January 11, 1978, an opposition to the reprobate of the will was filed by herein petitioner
alleging among other things, that he has every reason to believe that the will in question is a
forgery; that the intrinsic provisions of the will are null and void; and that even if pertinent
American laws on intrinsic provisions are invoked, the same could not apply inasmuch as they
would work injustice and injury to him.
37

On December 1, 1978, however, the petitioner through his counsel, Atty. Franco Loyola, filed a
Motion to Dismiss Opposition (With Waiver of Rights or Interests) stating that he "has been able
to verify the veracity thereof (of the will) and now confirms the same to be truly the probated
will of his daughter Adoracion." Hence, an ex-parte presentation of evidence for the reprobate
of the questioned will was made.
On January 10, 1979, the respondent judge issued an order to wit:
"At the hearing, it has been satisfactorily established that Adoracion C. Campos, in her lifetime,
was a citizen of the United States of America with a permanent residence at 4633 Ditman
Street, Philadelphia, PA 19124, (Exhibit D); that when alive, Adoracion C. Campos executed a
Last Will and Testament in the county of Philadelphia, Pennsylvania, U.S.A., according to the
laws thereat (Exhibits E-3 to E-3-b); that while in temporary sojourn in the Philippines,
Adoracion C. Campos died in the City of Manila (Exhibit C) leaving property both in the
Philippines and in the United States of America; that the Last Will and Testament of the late
Adoracion C. Campos was admitted and granted probate by the Orphan's Court Division of the
Court of Common Pleas, the probate court of the Commonwealth of Pennsylvania, County of
Philadelphia, U.S.A., and letters of administration were issued in favor of Clement J. McLaughlin,
all in accordance with the laws of the said foreign country on procedure and allowance of wills
(Exhibits E to E-10); and that the petitioner is not suffering from any disqualification which
would render her unfit as administratrix of the estate in the Philippines of the late Adoracion C.
Campos.
"WHEREFORE, the Last Will and Testament of the late Adoracion C. Campos is hereby admitted
to and allowed probate in the Philippines, and Nenita Campos Paguia is hereby appointed
Administratrix of the estate of said decedent; let Letters of Administration with the Will annexed
issue in favor of said Administratrix upon her filing of a bond in the amount of P5,000.00
conditioned under the provisions of Section I, Rule 81 of the Rules of Court.
Another manifestation was filed by the petitioner on April 14, 1979, confirming the withdrawal
of his opposition, acknowledging the same to be his voluntary act and deed.
On May 25, 1979, Hermogenes Campos filed a petition for relief, praying that the order allowing
the will be set aside on the ground that the withdrawal of his opposition to the same was
secured through fraudulent means. According to him, the "Motion to Dismiss Opposition" was
inserted among the papers which he signed in connection with two Deeds of Conditional Sales
which he executed with the Construction and Development Corporation of the Philippines
(CDCP). He also alleged that the lawyer who filed the withdrawal of the opposition was not his
counsel-of-record in the special proceedings case.

The petition for relief was set for hearing but the petitioner failed to appear. He made several
motions for postponement until the hearing was set on May 29, 1980.
On May 18, 1980, petitioner filed another motion entitled "Motion to Vacate and/or Set Aside
the Order of January 10, 1979, and/or dismiss the case for lack of jurisdiction. In this motion,
the notice of hearing provided:

"Please include this motion in your calendar for hearing on May 29, 1980 at 8:30 in the morning
for submission for reconsideration and resolution of the Honorable Court. Until this Motion is
resolved, may I also request for the future setting of the case for hearing on the Oppositor's
motion to set aside previously filed."
38

The hearing of May 29, 1980 was re-set by the court for June 19, 1980. When the case was
called for hearing on this date, the counsel for petitioner tried to argue his motion to vacate
instead of adducing evidence in support of the petition for relief. Thus, the respondent judge
issued an order dismissing the petition for relief for failure to present evidence in support
thereof. Petitioner filed a motion for reconsideration but the same was denied. In the same
order, respondent judge also denied the motion to vacate for lack of merit. Hence, this
petition. cdll
Meanwhile, on June 6, 1982, petitioner Hermogenes Campos died and left a will, which,
incidentally has been questioned by the respondent, his children and forced heirs as, on its face
patently null and void, and a fabrication, appointing Polly Cayetano as the executrix of his last
will and testament. Cayetano, therefore, filed a motion to substitute herself as petitioner in the
instant case which was granted by the court on September 13, 1982.

A motion to dismiss the petition on the ground that the rights of the petitioner Hermogenes
Campos merged upon his death with the rights of the respondent and her sisters, only
remaining children and forced heirs was denied on September 12, 1983.
Petitioner Cayetano persists with the allegations that the respondent judge acted without or in
excess of his jurisdiction when:
"1) He ruled the petitioner lost his standing in court deprived the Right to Notice (sic) upon the
filing of the Motion to Dismiss opposition with waiver of rights or interests against the estate of
deceased Adoracion C. Campos, thus, paving the way for the ex-parte hearing of the petition
for the probate of decedent will.
"2) He ruled that petitioner can waive, renounce or repudiate (not made in a public or
authenticated instrument), or by way of a petition presented to the court but by way of a
motion presented prior to an order for the distribution of the estate the law especially
providing that repudiation of an inheritance must be presented, within 30 days after it has
issued an order for the distribution of the estate in accordance with the rules of Court.
"3) He ruled that the right of a forced heir to his legitime can be divested by a decree admitting
a will to probate in which no provision is made for the forced heir in complete disregard of Law
of Succession.
"4) He denied petitioner's petition for Relief on the ground that no evidence was adduced to
support the Petition for Relief when no Notice nor hearing was set to afford petitioner to prove
the merit of his petition a denial of the due process and a grave abuse of discretion
amounting to lack of jurisdiction.
"5) He acquired no jurisdiction over the testate case, the fact that the Testator at the time of
death was a usual resident of Dasmarias, Cavite, consequently Cavite Court of First Instance
has exclusive jurisdiction over the case (De Borja vs. Tan, G.R. No. L-7792, July 1955)."
The first two issues raised by the petitioner are anchored on the allegation that the respondent
judge acted with grave abuse of discretion when he allowed the withdrawal of the petitioner's
opposition to the reprobate of the will.
We find no grave abuse of discretion on the part of the respondent judge. No proof was
adduced to support petitioner's contention that the motion to withdraw was secured through
fraudulent means and that Atty. Franco Loyola was not his counsel of record. The records show
that after the filing of the contested motion, the petitioner at a later date, filed a manifestation
39

wherein he confirmed that the Motion to Dismiss Opposition was his voluntary act and deed.
Moreover, at the time the motion was filed, the petitioner's former counsel, Atty. Jose P.
Lagrosa had long withdrawn from the case and had been substituted by Atty. Franco Loyola
who in turn filed the motion. The present petitioner cannot, therefore, maintain that the old
man's attorney of record was Atty. Lagrosa at the time of filing the motion. Since the
withdrawal was in order, the respondent judge acted correctly in hearing the probate of the will
ex-parte, there being no other opposition to the same. LLpr
The third issue raised deals with the validity of the provisions of the will. As a general rule, the
probate court's authority is limited only to the extrinsic validity of the will, the due execution
thereof, the testatrix's testamentary capacity and the compliance with the requisites or
solemnities prescribed by law. The intrinsic validity of the will normally comes only after the
court has declared that the will has been duly authenticated. However, where practical
considerations demand that the intrinsic validity of the will be passed upon, even before it is
probated, the court should meet the issue. (Maninang v. Court of Appeals, 114 SCRA 478).
In the case at bar, the petitioner maintains that since the respondent judge allowed the
reprobate of Adoracion's will, Hermogenes C. Campos was divested of his legitime which was
reserved by the law for him.
This contention is without merit.
Although on its face, the will appeared to have preterited the petitioner and thus, the
respondent judge should have denied its reprobate outright, the private respondents have
sufficiently established that Adoracion was, at the time of her death, an American citizen and a
permanent resident of Philadelphia, Pennsylvania, U.S.A. Therefore, under Article 16 par. (2)
and 1039 of the Civil Code which respectively provide:
Art. 16 par. (2).
xxx xxx xxx
"However, intestate and testamentary successions, both with respect to the order of succession
and to the amount of successional rights and to the intrinsic validity of testamentary provisions,
shall be regulated by the national law of the person whose succession is under consideration,
whatever may be the nature of the property and regardless of the country wherein said
property may be found."
Art. 1039.
"Capacity to succeed is governed by the law of the nation of the decedent."
the law which governs Adoracion Campo's will is the law of Pennsylvania, U.S.A., which is the
national law of the decedent. Although the parties admit that the Pennsylvania law does not
provide for legitimes and that all the estate may be given away by the testatrix to a complete
stranger, the petitioner argues that such law should not apply because it would be contrary to
the sound and established public policy and would run counter to the specific provisions of
Philippine Law.
It is a settled rule that as regards the intrinsic validity of the provisions of the will, as provided
for by Article 16 (2) and 1039 of the Civil Code, the national law of the decedent must apply.
This was squarely applied in the case of Bellis v. Bellis (20 SCRA 358) wherein we ruled:

40

"It is therefore evident that whatever public policy or good customs may be involved in our
system of legitimes, Congress has not intended to extend the same to the succession of foreign
nationals. For it has specifically chosen to leave, inter alia, the amount of successional rights, to
the decedent's national law. Specific provisions must prevail over general ones.
xxx xxx xxx
"The parties admit that the decedent, Amos G. Bellis, was a citizen of the State of Texas,
U.S.A., and under the law of Texas, there are no forced heirs or legitimes. Accordingly, since
the intrinsic validity of the provision of the will and the amount of successional rights are to be
determined under Texas law, the Philippine Law on legitimes cannot be applied to the testacy of
Amos G. Bellis."
As regards the alleged absence of notice of hearing for the petition for relief, the records will
bear the fact that what was repeatedly scheduled for hearing on separate dates until June 19,
1980 was the petitioner's petition for relief and not his motion to vacate the order of January
10, 1979. There is no reason why the petitioner should have been led to believe otherwise. The
court even admonished the petitioner's failing to adduce evidence when his petition for relief
was repeatedly set for hearing. There was no denial of due process. The fact that he requested
"for the future setting of the case for hearing . . ." did not mean that at the next hearing, the
motion to vacate would be heard and given preference in lieu of the petition for relief.
Furthermore, such request should be embodied in a motion and not in a mere notice of
hearing. prcd
Finally, we find the contention of the petition as to the issue of jurisdiction utterly devoid of
merit. Under Rule 73, Section 1, of the Rules of Court, it is provided that:

"SECTION 1. Where estate of deceased persons settled. If the decedent is an inhabitant of

the Philippines at the time of his death, whether a citizen or an alien, his will shall be proved, or
letters of administration granted, and his estate settled, in the Court of First Instance in the
province in which he resided at the time of his death, and if he is an inhabitant of a foreign
country, the Court of First Instance of any province in which he had estate. The court first
taking cognizance of the settlement of the estate of a decedent, shall exercise jurisdiction to the
exclusion of all other courts. The jurisdiction assumed by a court, so far as it depends on the
place of residence of the decedent, or of the location of his estate, shall not be contested in a
suit or proceeding, except in an appeal from that court, in the original case, or when the want
of jurisdiction appears on the record."
Therefore, the settlement of the estate of Adoracion Campos was correctly filed with the Court
of First Instance of Manila where she had an estate since it was alleged and proven the
Adoracion at the time of her death was a citizen and permanent resident of Pennsylvania,
United States of America an not a "usual resident of Cavite" as alleged by the petitioner.
Moreover, petitioner is now estopped from questioning the jurisdiction of the probate court in
the petition for relief. It is a settled rule that a party cannot invoke the jurisdiction of a court to
secure affirmative relief, against his opponent and after failing to obtain such relief, repudiate
or question that same jurisdiction. (See Saulog Transit, Inc. v. Hon. Manuel Lazaro, et al., G.R.
No. 63284, April 4, 1984). LLphil

WHEREFORE, the petition for certiorari and prohibition is hereby dismissed for lack of merit.
SO ORDERED.
41

||| (Cayetano v. Leonidas, G.R. No. 54919, May 30, 1984)

JOINT WILLS
[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.
DECISION
GUERRERO, J p:
This is an appeal by certiorari from the decision of the Court of Appeals in CA-G.R. Nos. 54492R and 54493-R which reversed the decision of the Court of First Instance of Albay allowing the
probate of the will 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 filing of the complaint up to complete restoration plus Fifty Thousand Pesos (P50,000.00) as
attorney's fees and costs. cdll
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, Doa Florentina Ralla, 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 Doa 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:
"(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 abovenamed heirs
in the left margin of every page (parafo primero).
(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
Doa 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).
42

(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.
(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 Doa 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 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 shall be distributed in equal shares among the heirs upon his or her
43

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 Doa Florentina, also known as Doa 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 wills
also declared that in the event of future acquisitions of other properties by either of them, onehalf thereof would belong to the other spouse, and the other half shall be divided equally
among the four children. The holographic will of Doa Tinay written in Spanish reads, as
translated:
"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 Francisca 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
Francisca 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. II; Series of 1949) enjoining each and everyone of them to respect and
faithfully comply with each and every clause contained in the said document.
44

"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.
(SGD.) FLORENTINA R. DE ALSUA"
(Joint Record on Appeal, pp. 420-423, CA-G.R. No. 54492-R)
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 Doa Tinay filed before the Court of First
Instance of Albay their respective petitions for the probate of their respective holographic wills
which were docketed as Special Proceedings No. 484 (Jesus Alsua, Petitioner) and Special
Proceedings No. 485 (Doa Florentina Ralla de Alsua, Petitioner).
On August 14, 1956, the spouses Don Jesus and Doa Tinay executed their mutual and
reciprocal codicils amending and supplementing their respective holographic wills. 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 Doa 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. cdrep
The codicil executed by Doa Tinay written in Spanish reads, as translated:
"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. II; 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 all 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.
45

That I institute as my heirs with the right to inherit my husband Don Jesus Alsua and my
children Francisca 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 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 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.
(SGD.) FLORENTINA RALLA DE ALSUA"
(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 Doa 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 wills and
the codicils thereto were duly admitted to probate.
Upon the death of Doa 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, 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 his 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 Extrajudicial" 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 Francisca as executrix to serve without a bond. LLpr
46

After all debts, funeral charges and other expenses of the estate of Doa 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 Doa 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 Doa 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, Doa
Tinay, and all his children, Francisca, 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 Doa Tinay in December, 1959. LLphil
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 thirtythree (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 Francisca Alsua-Betts,
specifically, 3 parcels of the 33 agricultural lands to Pablo and the rest to Francisca, the
oppositors also raised in issue the non-inclusion of said properties in the inventory of the estate
of their late father. In answer, Francisca 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 Francisca 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
47

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:
"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, Francisca 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
"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
Francisca 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:

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).
48

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 Doa 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:
"Finally, probate proceedings involve public interest, and the application therein of the rule of
estoppel, when it will 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:
"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 Will, 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:
"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 will, at the time of
its execution;
49

(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:
". . . 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 accepts the findings of the inferior court
concerning the question,
On October 2, 1959, Doa 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 his 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 will 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,
50

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 11:00 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:

'Precisamente es por lo que he llamado a ustedes que esten presentes para ser testigos de mi
ultimo voluntad y testamento que ha sido preparado por el abogado Sr. Gregorio Imperial
segun mis instrucciones cuyo documento tengo aqui conmigo y encuentro que, despues de lo
he leido, esta satisfactoriamente hecho segun mis instrucciones, Como saben ustedes tengo
cuatro (4) hijos todos ellos.' (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 will, and sealed it with his notarial seal, 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 them. (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).
51

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 and testament of Don Jesus Alsua fully complied with the formal
requirements of the law. LLphil
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 Doa Tinay together with their four children Francisca, 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 hereinbefore stated and to implement
its provisions, Don Jesus and Doa Tinay subsequently executed separately their respective
holographic wills 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 Doa Tinay, Don Jesus was appointed executor
of the will and in due time the partition of the properties or estate of Doa Tinay was approved
by the probate court on July 6, 1960. llcd
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:
"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.
52

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:

"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
53

testament 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 formalities 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. cdll

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 Doa 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:
"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.
54

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 Doa 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 Doa 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 will 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 Doa 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 Doa Tinay and
We find no indication whatsoever that Doa 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:
"Cuatro. Que si yo adquieriese nuevase propiedades despues de otorgado ests 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 mis 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 Doa Tinay would acquire after the execution of her will. LLpr
Likewise, the codicil of Doa 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:
"Dejo a mi esposo Jesus Alsua como su legitima y como herencia que se sacara de mi 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 excedieran de la mitad de gananciales que le
corresponde tal como arriba declaro, incluyendo todos aquellos 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
55

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:
"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 Doa Tinay
in the event that she should be the surviving spouse. To stress the point, Doa 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 Doa Tinay's will and codicil did not stipulate that Don Jesus
will bestow the properties equally to the children, it follows that all the properties of Doa Tinay
bequeathed to Don Jesus under her holographic will 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 Doa 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 will 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. prcd
After clearly establishing that only Don Jesus was named as sole heir instituted to the remaining
estate of Doa 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 will 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:
56

"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 will. 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 will, nothing will be gained. On the
contrary, this litigation will 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 will come up once
again before us on the same issue of the intrinsic validity or nullity of the will. Result: waste of
time, effort, expense, plus added anxiety. These are the practical considerations that induce us
to a belief that we might as well meet head-on the issue 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 will 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 Francisca;
and a statement naming Francisca 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 will 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 Doa 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 disposed
of by him to whomsoever he may choose. LLpr
If he now favored Francisca 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 in Bustamante v. Arevalo, 73 Phil. 635, to wit:
". . . 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. . . .
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 will. Once that intention has been determined through a careful reading of
the will or wills, and provided the law on legitimes has not been violated, it is beyond the place
of judicial cognizance to inquire into the fairness or unfairness of any devise or bequest. 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. . . ."
57

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 allow 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 Francisca 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:
"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 will. Mere weakness of
mind or partial imbecility from disease of body or from age does not render a person incapable
of making a will.
"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 will 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 was 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
58

witnesses was made after a statement from Don Jesus of the purpose of their meeting or
gathering, to wit:
"Precisamente es por lo que he llamado a ustedes que esten presentes para ser testigos de mi
ultima voluntad y testamento que ha sido preparado por el abogado Sr. Gregorio Imperial
segun mis instrucciones cuyo documento tengo aqui con migo y encuentro que, despues de lo
he leido, esta satisfactoriamente hecho segun mis instrucciones, Como saben ustedes tengo
cuatro (4) hijos todos ellos."
Clearly then, Don Jesus knew exactly what his actions were and the full implications thereof.
In rejecting probate of the will, 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 life" 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 selling the
properties under question to petitioner Francisca 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 disregard 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 will of
Don Jesus. The fact that Don Jesus did not cause his will to be probated during his lifetime
while his previous holographic will 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
will. The same thing can be 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. LLpr

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 Francisca 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
59

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 OG 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 (Evangelista 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 26, 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 Francisca 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 Francisca, 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 P47,355.29, drawn by Francisca
and payable to Don Jesus. (6) Exhibit "X-3 " and "X-5", endorsements on the back of the last
60

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-3541519 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. prcd
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 Francisca and discriminate against the other children. The
two contracts of sale executed by Don Jesus in favor of Francisca are evidenced by Exhibits "U"
and "W", the genuineness of which were not at all assailed at any time during this long drawnout 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 if 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 Francisca
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 "X-1" to complete payment on the estate and inheritance tax on the estate
of his wife to the Bureau of Internal Revenue.Cdpr
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.

||| (Alsua-Betts v. Court of Appeals, G.R. Nos. L-46430-31, July 30, 1979)

WITNESSES TO WILLS
[G.R. No. L-37453. May 25, 1979]
RIZALINA GABRIEL GONZALES, petitioner, vs.HONORABLE COURT OF APPEALS and
LUTGARDA SANTIAGO, respondents.

Francisco D. Rilloraza, Jr. for petitioners.

Angel A. Sison for private respondent.
61

SYNOPSIS

Isabel Gabriel executed a 5-page will two months prior to her death. The signatures of the
deceased appear at the end of the will and at the left margin of all the pages. The signatures of
the three attesting witnesses appear at the bottom of the attestation clause and on the left
margin of all the other pages. The will named private respondent as universal heir and
executor, and gave legacies in specified amounts to certain persons including the petitioner
herein. The petition for the probate of the will filed by private respondent was opposed by
petitioner. The trial court disallowed the will on the grounds that the will of the deceased was
not executed and attested as required by law and that the document presented for probate is
not the purported will allegedly dictated by the deceased, executed and signed by her, and
attested by the three attesting witnesses. Respondent appealed. The Court of Appeals, upon
consideration of the evidence, reversed the trial court's decision and allowed the probate of the
will.
In this petition for review, petitioner assigned ten errors which are substantially factual in
character and content. Affirming the decision of the Court of Appeals, the Supreme Court held
that the factual finding of the Court of Appeals are not reviewable and are binding upon the
Supreme Court.
SYLLABUS
1. APPEAL; FACTUAL FINDINGS OF THE COURT OF APPEALS ARE NOT REVIEWABLE. The
factual findings of the Court of Appeals are not reviewable the same being binding and
conclusive on the Supreme Court, particularly where the premises are borne by the record or
based upon substantial evidence. Assignments of errors involving factual issues cannot be
ventilated in a review of the decision of the Court of Appeals because only legal question may
be raised.
2. WILLS; ATTESTING WITNESSES; QUALIFICATIONS. Under the law, there is no mandatory
requirement that the witnesses testify initially at any time during the trial as to his good
standing in the community, his reputation for trustworthiness and reliability, his honesty and
uprightness in order that his testimony may be believed and accepted by the trial court. It is
enough that the qualifications enumerated in Article 820 of the Civil Code are complied with,
such that the soundness of his mind can be shown by or deduced from his answers to the
questions propounded to him, that his age (18 years or more) is shown from his appearance,
testimony, or competently proved otherwise, as well as the fact that he is not blind, deaf or
dumb and that he is able to read and write to the satisfaction of the court, and that he has
none of the disqualifications under Article 821 of the Civil Code.

3. ID.; ATTESTING WITNESSES ARE NOT CHARACTER WITNESSES. The instrumental

witnesses are not character witnesses for they merely attest the execution of a will or
testament and affirm the formalities attendant to said execution. The rulings concerning
character witnesses in naturalization proceedings are not applicable to instrumental witnesses
to wills executed under the Civil Code.
4. ID.; ID.; CREDIBLE WITNESSES MEAN COMPETENT WITNESSES. "Credible witnesses"
mean competent witnesses and not those who testify to facts from or upon hearsay. In the
strict sense, the competency of a person to be an instrumental witness to a will is determined
by the statute, that is Art. 820 and 821, Civil Code, whereas his credibility depends on the
appreciation of his testimony and arises from the belief and conclusion of the court that said
witness is telling the truth. It is not necessary to introduce prior and independent proof of the
62

fact that the witnesses are "credible witnesses", that is, that they have a good standing in the
community and reputed to be trustworthy and reliable.
5. ID.; NOTARIAL WILLS, NATURE OF. A notarial will duly acknowledged by the testatrix and
the witnesses before a notary public is a public document executed and attested through the
intervention of the notary public and as such public document is evidence of the facts in clear,
unequivocal manner therein expressed. It has in its favor the presumption of regularity. To
contradict all these, there must be evidence that is clear, convincing the more than merely
preponderant.
6. ID.; ATTESTATION CLAUSE. The attestation clause which the attesting witness signed is
the best evidence as to date of signing because it preserves in permanent form a recital of all
the material facts attending the execution of the will. This is the very purpose of the attestation
clause which is made for the purpose of preserving in permanent form, a record of the facts
attending the execution of the will, so that in case of failure in the memory of the subscribing
witnesses, or other casualty they may still be proved.
7. ID.; EVIDENCE; WITNESSES; PHOTOGRAPHER NOT REQUIRED FOR EXECUTION OF WILL.
The law does not require a photographer for the execution and attestation of the will. The
fact that an attesting witness mistakenly identified the photographer scarcely detracts from her
testimony that she was present when the will was signed because what matters here is not the
photographer but the photograph taken which clearly portrays the attesting witnesses and her
co-witnesses.
8. ID.; ID.; MINOR INCONSISTENCIES. The discrepancy in the description of the typewriter
used by the notary which he described as "elate" which to him meant big letters which are of
the type in which the will was typewritten but which was identified by an experts as "pica", and
the mistake by the instrumental witness in mentioning the name of the photographer-these are
unimportant details which could have been affected by the lapse of time and the treachery of
human memory such as by themselves would not alter the probative value of the testimonies of
the witnesses on the true execution of the will, for it cannot be expected that the testimony of
every person will be identical and coinciding with each other with regard to details in an
incident and that witnesses are not expected to remember all details.
9. APPEAL; FINDING OF FACT OF TRIAL COURT. The right of the Court of Appeals to review,
alter and reverse the findings of the trial court where the appellate court, in reviewing the
evidence has found that facts and circumstances of weight and influence have been ignored
and overlooked and the significance of which have been misinterpreted by the trial court,
cannot be disputed. Find of facts made by the trial court, particularly when they are based on
conflicting evidence whose evaluation hinges on questions of credibility of contending witnesses
lies particularly within the province of trial courts and generally, the appellate court should not
interfere with the same, unless the trial court has overlooked and misinterpreted the facts and
circumstances established in the record.
10. ID.; ID.; EXCEPTION TO THE RULE THAT JUDGMENT OF COURT OF APPEALS IS
CONCLUSIVE AS TO FACTS. Among the exceptions to the rule that the judgment of the Court
of Appeals is conclusive as to the facts and cannot be reviewed by the Supreme Court are: (1)
when the conclusion as a finding grounded entirely on speculations, surmises or conjectures;
(2) when the inference is manifestly mistaken, absurd or impossible; (3) when there is a grave
abuse of discretion; (4) when the judgment is based on a misapprehension of facts; (5) when
the findings of facts are conflicting; (6) when the Court of Appeals, in making its findings, went
63

beyond the issues of the case and the same is contrary to the admissions of both appellant and
appellee.
11. WILLS; DUE EXECUTION. Where the tree instrumental witnesses, who constitute the
best evidence of the will-making, as well as the lawyer who prepared it and who thereafter
notarized it have testified in favor of the will, and where all of them are disinterested witnesses
who stand to received no benefit from the testament, and the signatures of the witnesses and
the testatrix have been identified on the will and there is no claim whatsoever and by any one,
much less the petitioner that they are not genuine, the decision holding that the will was
executed in accordance with the formalities required by law should be affirmed.
DECISION
GUERRERO, J p:

This is a petition for review of the decision of the Court of Appeals, First
Division, 1 promulgated on May 4, 1973 in CA-G. R. No. 36523-R which reversed the decision of
the Court of First Instance of Rizal dated December 15, 1964 and allowed the probate of the
last will and testament of the deceased Isabel Gabriel.
It appears that on June 24, 1961, herein private respondent Lutgarda Santiago filed a petition
with the Court of First Instance of Rizal docketed as Special Proceedings No. 3617, for the
probate of a will alleged to have been executed by the deceased Isabel Gabriel and designating
therein petitioner as the principal beneficiary and executrix.
There is no dispute in the records that the late Isabel Andres Gabriel died as a widow and
without issue in the municipality of Navotas, province of Rizal her place of residence, on June 7,
1961 at the age of eighty-five (85), having been born in 1876. It is likewise not controverted
that herein private respondent Lutgarda Santiago and petitioner Rizalina Gabriel Gonzales are
nieces of the deceased, and that private respondent, with her husband and children, lived with
the deceased at the latter's residence prior and up to the time of her death.
The will submitted for probate, Exhibit "F", which is typewritten and in Tagalog, appears to
have been executed in Manila on the 15th day of April, 1961, or barely two (2) months prior to
the death of Isabel Gabriel. It consists of five (5) pages, including the pages whereon the
attestation clause and the acknowledgment of the notary public were written. The signatures of
the deceased Isabel Gabriel appear at the end of the will on page four and at the left margin of
all the pages. The attestation clause, which is found on page four, reads as follows:

"PATUNAY NG MGA SAKSI

"Kaming mga nakalagdang mga saksi o testigo na ang aming mga tinitirahan ay nakasulat sa
gawing kanan at kahilira ng aming mga pangalan sa ibaba nito, ay pagpapatutuo na ipinakilala,
ipinaalam at ipinahayag sa amin ni Isabel Gabriel na ang kasulatang ito na binubuo ng Limang
Dahon (Five Pages) pati na ang dahong ito, na siya niyang TESTAMENTO AT HULING HABILIN,
ngayong ika 15 ng Abril, 1961, ay nilagdaan ng nasabing testadora na si Isabel Gabriel ang
nasabing testamento sa ibaba o ilalim ng kasulatan na nasa ika apat na dahon (page four) at
nasa itaas ng patunay naming ito, at sa kaliwang panig ng lahat at bawat dahon (and on the
left hand margin of each and every page), sa harap ng lahat at bawat isa sa amin, at kami
namang mga saksi ay lumagda sa harap ng nasabing testadora, at sa harap ng lahat at bawat
64

isa sa amin, sa ilalim ng patunay ng mga saksi at sa kaliwang panig ng lahat at bawa't dahon
ng testamentong ito."
At the bottom thereof, under the heading "Pangalan", are written the signatures of Matilde D.
Orobia, Celso D. Gimpaya and Maria R. Gimpaya, and opposite the same, under the heading
"Tirahan", are their respective places of residence, 961 Highway 54, Philamlife, for Miss Orobia,
and 12 Dagala St., Navotas, Rizal, for the two Gimpayas. Their signatures also appear on the
left margin of all the other pages. The will is paged by typewritten words as follows: "Unang
Dahon" and underneath "(Page One)", "Ikalawang Dahon" and underneath "(Page Two)", etc.,
appearing at the top of each page. prLL
The will itself provides that the testatrix desired to be buried in the Catholic Cemetery of
Navotas, Rizal in accordance with the rites of the Roman Catholic Church, all expenses to be
paid from her estate; that all her obligations, if any, be paid; that legacies in specified amounts
be given to her sister, Praxides Gabriel Vda. de Santiago, her brother Santiago Gabriel, and her
nephews and nieces, Benjamin, Salud, Rizalina (herein petitioner), Victoria, Ester, Andres, all
surnamed Gabriel, and Evangelina, Rudyardo, Rosa, Andrea, Marcial, Numancia, Verena, all
surnamed Santiago. The herein private respondent Lutgarda Santiago, who was described in
the will by the testatrix as "aking mahal na pamangkin na aking pinalaki, inalagaan at minahal
na katulad ng isang tunay na anak" and named as universal heir and executor, were
bequeathed all properties and estate, real or personal, already acquired, or to be acquired, in
her (testatrix's) name, after satisfying the expenses, debts and legacies as aforementioned.
The petition was opposed by Rizalina Gabriel Gonzales, herein petitioner, assailing the
document purporting to be the will of the deceased on the following grounds:
1. that the same is not genuine; and in the alternative
2. that the same was not executed and attested as required by law;
3. that, at the time of the alleged execution of the purported will, the decedent lacked
testamentary capacity due to old age and sickness; and in the second alternative
4. that the purported will was procured through undue and improper pressure and influence on
the part of the principal beneficiary, and/or of some other person for her benefit.
Lutgarda Santiago filed her Answer to the Opposition on February 1, 1962. After trial the
court a quo rendered judgment, the summary and dispositive portions of which read:
"Passing in summary upon the grounds advanced by the oppositor, this Court finds:
"1. That there is no iota of evidence to support the contention that the purported will of the
deceased was procured through undue and improper pressure and influence on the part of the
petitioner, or of some other person for her benefit;
"2. That there is insufficient evidence to sustain the contention that at the time of the alleged
execution of the purported will, the deceased lacked testamentary capacity due to old age and
sickness;
"3. That sufficient and abundant evidence warrants conclusively the fact that the purported will
of the deceased was not executed and attested as required by law;

65

"4. That the evidence is likewise conclusive that the document presented for probate, Exhibit 'F'
is not the purported will allegedly dictated by the deceased, executed and signed by her, and
attested by her three attesting witnesses on April 15, 1961.
"WHEREFORE, Exhibit 'F', the document presented for probate as the last will and testament of
the deceased Isabel Gabriel, is hereby DISALLOWED."
From this judgment of disallowance, Lutgarda Santiago appealed to respondent Court, hence,
the only issue decided on appeal was whether or not the will in question was executed and
attested as required by law. The Court of Appeals, upon consideration of the evidence adduced
by both parties, rendered the decision now under review, holing that the will in question was
signed and executed by the deceased Isabel Gabriel on April 15, 1961 in the presence of the
three attesting witnesses, Matilde Orobia, Celso Gimpaya and Maria Gimpaya, signing and
witnessing the document in the presence of the deceased and of each other as required by
law, 2hence allowed probate.
Oppositor Rizalina Gabriel Gonzales moved for reconsideration 3 of the aforesaid decision and
such motion was opposed 4 by petitioner-appellant Lutgarda Santiago. Thereafter, parties
submitted their respective Memoranda, 5 and on August 28, 1973, respondent Court, Former
Special First Division, by Resolution 6 denied the motion for reconsideration stating that:
"The oppositor-appellee contends that the preponderance of evidence shows that the supposed
last will and testament of Isabel Gabriel was not executed in accordance with law because the
same was signed on several occasions, that the testatrix did not sign the will in the presence of
all the instrumental witnesses did not sign the will in the presence of each other.
"The resolution of the factual issue raised in the motion for reconsideration hinges on the
appreciation of the evidence. We have carefully re-examined the oral and documentary
evidence of record. There is no reason to alter the findings of fact in the decision of this Court
sought to be set aside. 7
In her petition before this Court, oppositor Rizalina Gabriel Gonzales contends that respondent
Court abused its discretion and/or acted without or in excess of its jurisdiction in reversing the
findings of fact and conclusions of the trial court. The Court, after deliberating on the petition
but without giving due course resolved, in the Resolution dated Oct. 11, 1973 to require the
respondents to comment thereon, which comment was filed on Nov. 14, 1973. Upon
consideration of the allegations, the issues raised and the arguments adduced in the petition, as
well as the Comment 8 of private respondent thereon, We denied the petition by Resolution on
November 26, 1973, 9 the question raised being factual and for insufficient showing that the
findings of fact by respondent Court were unsupported by substantial evidence.
Subsequently, or on December 17, 1973, petitioner Rizalina Gabriel Gonzales filed a Motion for
Reconsideration 10 which private respondent answered by way of her Comment or
Opposition 11 filed on January 15, 1974. A Reply and Rejoinder to Reply followed. Finally, on
March 27, 1974, We resolved to give due course to the petition.
The petitioner in her brief makes the following assignment of errors:
I. The respondent Court of Appeals erred in holding that the document, Exhibit "F" was
executed and attested as required by law when there was absolutely no proof that the three
instrumental witnesses were credible witnesses.

66

II. The Court of Appeals erred in reversing the finding of the lower court that the preparation
and execution of the will Exhibit "F", was unexpected and coincidental.
III. The Court of Appeals erred in finding that Atty. Paraiso was not previously furnished with
the names and residence certificates of the witnesses as to enable him to type such data into
the document Exhibit "F".
IV. The Court of Appeals erred in holding that the fact that the three typewritten lines under the
typewritten words "Pangalan" and "Tinitirahan" were left blank shows beyond cavil that the
three attesting witnesses were all present in the same occasion.
V. The Court of Appeals erred in reversing the trial court's finding that it was incredible that
Isabel Gabriel could have dictated the will, Exhibit "F", without any note or document, to Atty.
Paraiso.

VI. The Court of Appeals erred in reversing the finding of the trial court that Matilde Orubia was
not physically present when the will, Exhibit "F" was allegedly signed on April 15, 1961 by the
deceased Isabel Gabriel and the other witnesses Celso Gimpaya and Maria Gimpaya.
VII. The Court of Appeals erred in holding that the trial court gave undue importance to the
picture takings as proof that the will was improperly executed.
VIII. The Court of Appeals erred in holding that the grave contradictions, evasions, and
misrepresentations of witnesses (subscribing and notary) presented by the petitioner had been
explained away, and that the trial court erred in rejecting said testimonies.
IX. The Court of Appeals acted in excess of its appellate jurisdiction or has so far departed from
the accepted and usual course of judicial proceedings, as to call for an exercise of the power of
supervision.
X. The Court of Appeals erred in reversing the decision of the trial court and admitting to
probate Exhibit "F", the alleged last will and testament of the deceased Isabel Gabriel.
It will be noted from the above assignments of errors that the same are substantially factual in
character and content. Hence, at the very outset, We must again state the oft-repeated and
well-established rule that in this jurisdiction, the factual findings of the Court of Appeals are not
reviewable, the same being binding and conclusive on this Court. This rule has been stated and
reiterated in a long line of cases enumerated in Chan vs. CA (L-27488, June 30, 1970, 33 SCRA
737, 743) 12 and Tapas vs. CA (L-22202, February 27; 1976, 69 SCRA 393), 13 and in the
more recent cases ofBaptista vs. Carillo and CA (L-32192, July 30, 1976, 72 SCRA 214, 217)
andVda. de Catindig vs. Heirs of Catalina Roque (L-25777, November 26, 1976, 74 SCRA 83,
88). In the case of Chan vs. CA, this Court said: LibLex

". . . from Guico v. Mayuga, a 1936 decision, the opinion being penned by the then Justice
Recto, it has been well-settled that the jurisdiction of 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. More specifically, in a decision exactly a month later, this Court,
speaking through the then Justice Laurel it was held that the same principle is applicable, even
if the Court of Appeals was in disagreement with the lower court as to the weight of the
evidence with a consequent reversal of its findings of fact. . . .

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Stated otherwise, findings of facts by the Court of Appeals, when supported by substantive
evidence are not reviewable on appeal by certiorari. Said findings of the appellate court are final
and cannot be disturbed by Us particularly because its premises are borne out by the record or
based upon substantial evidence and what is more, when such findings are correct.
Assignments of errors involving factual issues cannot be ventilated in a review of the decision of
the Court of Appeals because only legal questions may be raised. The Supreme Court is not at
liberty to alter or modify the facts as set forth in the decision of the Court of Appeals sought to
be reversed. Where the findings of the Court of Appeals are contrary to that of the trial court, a
minute scrutiny by the Supreme Court is in order, and resort to duly-proven evidence becomes
necessary. The general rule We have thus stated above is not without some recognized
exceptions.
Having laid down the above legal precepts as Our foundation, We now proceed to consider
petitioner's assignments of errors.
Petitioner, in her first assignment, contends that the respondent Court of Appeals erred in
holding that the document, Exhibit "F", was executed and attested as required by law when
there was absolutely no proof that the three instrumental witnesses were credible witnesses.
She argues that the requirement in Article 806, Civil Code, that the witnesses must be credible
is an absolute requirement which must be complied with before an alleged last will and
testament may be admitted to probate and that to be a credible witness, there must be
evidence on record that the witness has a good standing in his community, or that he is honest
and upright, or reputed to be trustworthy and reliable. According to petitioner, unless the
qualifications of the witness are first established, his testimony may not be favorably
considered. Petitioner contends that the term "credible" is not synonymous with "competent"
for a witness may be competent under Article 820 and 821 of the Civil Code and still not be
credible as required by Article 805 of the same Code. It is further urged that the term "credible"
as used in the Civil Code should receive the same settled and well-known meaning it has under
the Naturalization Law, the latter being a kindred legislation with the Civil Code provisions on
wills with respect to the qualifications of witnesses.
We find no merit to petitioner's first assignment of error. Article 820 of the Civil Code provides
the qualifications of a witness to the execution of wills while Article 821 sets forth the
disqualification from being a witness to a will. These Articles state:
"Art. 820. Any person of sound mind and of the age of eighteen years or more, and not blind,
deaf or dumb, and able to read and write, may be a witness to the execution of a will
mentioned in article 805 of this Code.

"Art. 821. The following are disqualified from being witnesses to a will:
(1) Any person not domiciled in the Philippines,
(2) Those who have been convicted of falsification of a document, perjury or false testimony.
Under the law, there is no mandatory requirement that the witness testify initially or at any time
during the trial as to his good standing in the community, his reputation for trustworthiness and
reliableness, his honesty and uprightness in order that his testimony may be believed and
accepted by the trial court. It is enough that the qualifications enumerated in Article 820 of the
Civil Code are complied with, such that the soundness of his mind can be shown by or deduced
from his answers to the questions propounded to him, that his age (18 years or more) is shown
from his appearance, testimony, or competently proved otherwise, as well as the fact that he is
68

not blind, deaf or dumb and that he is able to read and write to the satisfaction of the Court,
and that he has none of the disqualifications under Article 821 of the Civil Code. We reject
petitioner's contention that it must first be established in the record the good standing of the
witness in the community, his reputation for trustworthiness and reliableness, his honesty and
uprightness, because such attributes are presumed of the witness unless the contrary is proved
otherwise by the opposing party.
We also reject as without merit petitioner's contention that the term "credible" as used in the
Civil Code should be given the same meaning it has under the Naturalization Law where the law
is mandatory that the petition for naturalization must be supported by two character witnesses
who must prove their good standing in the community, reputation for trustworthiness and
reliableness, their honesty and uprightness. The two witnesses in a petition for naturalization
are character witnesses in that being citizens of the Philippines, they personally know the
petitioner to be a resident of the Philippines for the period of time required by the Act and a
person of good repute and morally irreproachable and that said petitioner has in their opinion
all the qualifications necessary to become a citizen of the Philippines and is not in any way
disqualified under the provisions of the Naturalization Law (Section 7, Commonwealth Act No.
473 as amended).
In probate proceedings, the instrumental witnesses are not character witnesses for they merely
attest the execution of a will or testament and affirm the formalities attendant to said
execution. And We agree with the respondent that the rulings laid down in the cases cited by
petitioner concerning character witnesses in naturalization proceedings are not applicable to
instrumental witnesses to wills executed under the Civil Code of the Philippines.
In the case at bar, the finding that each and everyone of the three instrumental witnesses,
namely, Matilde Orobia, Celso Gimpaya and Maria Gimpaya, are competent and credible is
satisfactorily supported by the evidence as found by the respondent Court of Appeals, which
findings of fact this Tribunal is bound to accept and rely upon. Moreover, petitioner has not
pointed to any disqualification of any of the said witnesses, much less has it been shown that
anyone of them is below 18 years of age, of unsound mind, deaf or dumb, or cannot read or
write.
It is true that under Article 805 of the New Civil Code, every will, other than a holographic will,
must be subscribed at the end thereof by the testator himself or by the testator's name written
by some other person in his presence, and by his express direction, and attested and
subscribed by three or more credible witnesses in the presence of the testator and of one
another. While the petitioner submits that Article 820 and 821 of the New Civil Code speak of
the competency of a witness due to his qualifications under the first Article and none of the
disqualifications under the second Article, whereas Article 805 requires the attestation of three
or more credible witnesses, petitioner concludes that the term crediblerequires something more
than just being competent and, therefore, a witness in addition to being competent under
Articles 820 and 821 must also be a credible witness under Article 805.
Petitioner cites American authorities that competency and credibility of a witness are not
synonymous terms and one may be a competent witness and yet not a credible one. She
exacerbates that there is no evidence on record to show that the instrumental witnesses are
credible in themselves, that is, that they are of good standing in the community since one was a
family driver by profession and the second the wife of the driver, a housekeeper. It is true that
Celso Gimpaya was the driver of the testatrix and his wife Maria Gimpaya, merely a
housekeeper, and that Matilde Orobia was a piano teacher to a grandchild of the testatrix. But
69

the relation of employer and employee much less the humble social or financial position of a
person do not disqualify him to be a competent testamentary witness. (Molo-Pekson and PerezNable vs. Tanchuco, et al., 100 Phil. 344; Testate Estate of Raymundo, Off. Gaz., March 18,
1941, p. 788). llcd
Private respondent maintains that the qualifications of the three or more credible witnesses
mentioned in Article 805 of the Civil Code are those mentioned in Article 820 of the same Code,
this being obvious from that portion of Article 820 which says "may be a witness to the
execution of a will mentioned in Article 805 of this Code," and cites authorities that the word
"credible" insofar as witnesses to a will are concerned simply means "competent." Thus, in the
case of Suntay vs. Suntay, 95 Phil. 500, the Supreme Court held that "Granting that a will was
duly executed and that it was in existence at the time of, and not revoked before, the death of
the testator, still the provisions of the lost will must be clearly and distinctly proved by at least
two credible witnesses. 'Credible witnesses' mean competent witnesses and not those who
testify to facts from or upon hearsay." (emphasis supplied).
In Molo Pekson and Perez-Nable vs. Tanchuco, et al., 100 Phil. 344, the Supreme Court held
that "Section 620 of the same Code of Civil Procedure provides that any person of sound mind,
and of the age of eighteen years or more, and not blind, deaf, or dumb and able to read and
write, may be a witness to the execution of a will. This same provision is reproduced in our New
Civil Code of 1950, under Art. 820. The relation of employer and employee, or being a relative
to the beneficiary in a will, does not disqualify one to be a witness to a will. The main
qualification of a witness in the attestation of wills, if other qualifications as to age, mental
capacity and literacy are present, is that said witness must be credible, that is to say, his
testimony may be entitled to credence. There is a long line of authorities on this point, a few of
which we may cite:

"A 'credible witness' is one who is not disqualified to testify by mental incapacity, crime, or
other cause. Historical Soc. of Dauphin County vs. Kelker, 74 A. 619, 226 Pa. 16, 134 Am. St.
Rep. 1010." (Words and Phrases, Vol. 10, p. 340).
"As construed by the common law, a 'credible witness' to a will means a 'competent witness.'
Appeal of Clark, 95 A. 517, 114 Me. 105, Ann. Cas. 1917A, 837." (Ibid, p. 341).
"Expression 'credible witness' in relation to attestation of wills means 'competent witness'; that
is, one competent under the law to testify to fact of execution of will. Vernon's Ann. Civ. St. art.
8283. Moos vs. First State Bank of Uvalde, Tex. Civ. App. 60 S. W. 2nd 888, 889." (Ibid, p. 342)

"The term 'credible', used in the statute of wills requiring that a will shall be attested by two
credible witnesses means competent; witnesses who, at the time of attesting the will, are
legally competent to testify, in a court of justice, to the facts attested by subscribing the will,
the competency being determined as of the date of the execution of the will and not of the time
it is offered for probate. Smith vs. Goodell, 101 N.E. 255, 266, 258 Ill. 145." (Ibid.)
"'Credible witnesses', as used in the statute relating to wills, means competent witnesses that
is, such persons as are not legally disqualified from testifying in courts of justice, by reason of
mental incapacity, interest, or the commission of crimes, or other cause excluding them from
testifying generally, or rendering them incompetent in respect of the particular subject matter
or in the particular suit. Hill vs. Chicago Title & Trust co., 152 N.E. 545, 546, 322 Ill. 42." (Ibid.
p. 343)
70

In the strict sense, the competency of a person to be an instrumental witness to a will is

determined by the statute, that is Art. 820 and 821, Civil Code, whereas his credibility depends
on the appreciation of his testimony and arises from the belief and conclusion of the Court that
said witness is telling the truth. Thus, in the case of Vda. de Aroyo v. El Beaterio del Santissimo
Rosario de Molo, No. L-22005, May 3, 1968, the Supreme Court held and ruled that:
"Competency as a witness is one thing, and it is another to be a credible witness, so credible
that the Court must accept what he says. Trial courts may allow a person to testify as a witness
upon a given matter because he is competent, but may thereafter decide whether to believe or
not to believe his testimony."
In fine, We state the rule that the instrumental witnesses in order to be competent must be
shown to have the qualifications under Article 820 of the Civil Code and none of the
disqualifications under Article 821 and for their testimony to be credible, that is worthy of belief
and entitled to credence, it is not mandatory that evidence be first established on record that
the witnesses have a good standing in the community or that they are honest and upright or
reputed to be trustworthy and reliable, for a person is presumed to be such unless the contrary
is established otherwise. In other words, the instrumental witnesses must be competent and
their testimonies must be credible before the court allows the probate of the will they have
attested. We, therefore, reject petitioner's position that it was fatal for respondent not to have
introduced prior and independent proof of the fact that the witnesses were "credible witnesses",
that is, that they have a good standing in the community and reputed to be trustworthy and
reliable.
Under the second, third, fourth, fifth, sixth, seventh and eighth assignments of errors, petitioner
disputes the findings of fact of the respondent court in finding that the preparation and
execution of the will was expected and not coincidental, in finding that Atty. Paraiso was not
previously furnished with the names and residence certificates of the witnesses as to enable
him to type such data into the document Exhibit "F", in holding that the fact that the three
typewritten lines under the typewritten words "pangalan" and "tinitirahan" were left blank
shows beyond cavil that the three attesting witnesses were all present in the same occasion, in
holding credible that Isabel Gabriel could have dictated the will without note or document to
Atty. Paraiso, in holding that Matilde Orobia was physically present when the will was signed on
April 15, 1961 by the deceased Isabel Gabriel and the other witnesses Celso Gimpaya and Maria
Gimpaya, in holding that the trial court gave undue importance to the picture takings as proof
that the will was improperly executed, and in holding that the grave contradictions, evasions
and misrepresentations of the witnesses (subscribing and notary) presented by the petitioner
had been explained away.

Since the above errors are factual, We must repeat what We have previously laid down that the
findings of fact of the appellate court are binding and controlling which We cannot review,
subject to certain exceptions which We will consider and discuss hereinafter. We are convinced
that the appellate court's findings are sufficiently justified and supported by the evidence on
record. Thus, the alleged unnaturalness characterizing the trip of the testatrix to the office of
Atty. Paraiso and bringing all the witnesses without previous appointment for the preparation
and execution of the will and that it was coincidental that Atty. Paraiso was available at the
moment impugns the finding of the Court of Appeals that although Atty. Paraiso admitted the
visit of Isabel Gabriel and of her companions to his office on April 15, 1961 was unexpected as
there was no prior appointment with him, but he explained that he was available for any
business transaction on that day and that Isabel Gabriel had earlier requested him to help her
prepare her will. The finding of the appellate court is amply based on the testimony of Celso
71

Gimpaya that he was not only informed on the morning of the day that he witnessed the will
but that it was the third time when Isabel Gabriel told him that he was going to witness the
making of her will, as well as the testimony of Maria Gimpaya that she was called by her
husband Celso Gimpaya to proceed to Isabel Gabriel's house which was nearby and from said
house, they left in a car to the lawyer's office, which testimonies are recited in the respondent
Court's decision.
The respondent Court further found the following facts: that Celso Gimpaya and his wife Maria
Gimpaya obtained residence certificates a few days before Exhibit "F" was executed. Celso
Gimpaya's residence certificate No. A-5114942 was issued at Navotas, Rizal on April 13, 1961
while Maria Gimpaya's residence certificate No. A-5114974 was issued also at Navotas, Rizal on
April 14, 1961. The respondent Court correctly observed that there was nothing surprising in
these facts and that the securing of these residence certificates two days and one day,
respectively, before the execution of the will on April 15, 1961, far from showing an amazing
coincidence, reveals that the spouses were earlier notified that they would be witnesses to the
execution of Isabel Gabriel's will. LLphil
We also agree with the respondent Court's conclusion that the excursion to the office of Atty.
Paraiso was planned by the deceased, which conclusion was correctly drawn from the testimony
of the Gimpaya spouses that they started from the Navotas residence of the deceased with a
photographer and Isabel Gabriel herself, then they proceeded by car to Matilde Orobia's house
in Philamlife, Quezon City to fetch her and from there, all the three witnesses (the Gimpayas
and Orobia) passed by a place where Isabel Gabriel stayed for about ten to fifteen minutes at
the clinic of Dr. Chikiamco before they proceeded to Atty. Cipriano Paraiso's office.
It is also evident from the records, as testified to by Atty. Paraiso, that previous to the day that
the will was executed on April 15, 1961, Isabel Gabriel had requested him to help her in the
execution of her will and that he told her that if she really wanted to execute her will, she
should bring with her at least the Mayor of Navotas, Rizal and a Councilor to be her witnesses
and that he (Atty. Paraiso) wanted a medical certificate from a physician notwithstanding the
fact that he believed her to be of sound and disposition mind. From this evidence, the appellate
court rightly concluded, thus: "It is, therefore, clear that the presence of Isabel Gabriel and her
witnesses Matilde Orobia, Celso Gimpaya and Maria Gimpaya including the photographer in the
law office of Atty. Paraiso was not coincidental as their gathering was pre-arranged by Isabel
Gabriel herself."
As to the appellate court's finding that Atty. Paraiso was not previously furnished with the
names and residence certificates of the witnesses as to enable him to type such data into the
document Exhibit "F", which the petitioner assails as contradictory and irreconcilable with the
statement of the Court that Atty. Paraiso was handed a list (containing the names of the
witnesses and their respective residence certificates) immediately upon their arrival in the law
office by Isabel Gabriel and this was corroborated by Atty. Paraiso himself who testified that it
was only on said occasion that he received such list from Isabel Gabriel, We cannot agree with
petitioner's contention. We find no contradiction for the respondent Court held that on the
occasion of the will-making on April 15, 1961, the list was given immediately to Atty. Paraiso
and that no such list was given the lawyer in any previous occasion or date prior to April 15,
1961.
But whether Atty. Paraiso was previously furnished with the names and residence certificates of
the witnesses on a prior occasion or on the very occasion and date in April 15, 1961 when the
will was executed, is of no moment for such data appear in the notarial acknowledgment of
72

Notary Public Cipriano Paraiso, subscribed and sworn to by the witnesses on April 15, 1961
following the attestation clause duly executed and signed on the same occasion, April 15, 1961.
And since Exhibit "F" is a notarial will duly acknowledged by the testatrix and the witnesses
before a notary public, the same is a public document executed and attested through the
intervention of the notary public and as such public document is evidence of the facts in clear,
unequivocal manner therein expressed. It has in its favor the presumption of regularity. To
contradict all these, there must be evidence that is clear, convincing and more than merely
preponderant. (Yturalde vs. Azurin, 28 SCRA 407). We find no such evidence pointed by
petitioner in the case at bar.

Likewise, the conclusion of the Court of Appeals in holding that the fact that the three
typewritten lines under the typewritten words "pangalan" and "tinitirahan" were left blank
shows beyond cavil that the three attesting witnesses were all present in the same occasion
merits Our approval because this conclusion is supported and borne out by the evidence found
by the appellate court, thus: "On page 5 of Exhibit "F", beneath the typewritten words "names",
"Res. Tax Cert.", "date issued" and "place issued" the only name of Isabel Gabriel with
Residence Tax Certificate No. A-5113274 issued on February 24, 1961 at Navotas, Rizal appears
to be in typewritten form while the names, residence tax certificate numbers, dates and places
of issuance of said certificates pertaining to the three (3) witnesses were personally handwritten
by Atty. Paraiso. Again, this coincides with Atty. Paraiso's even the sale must be made to close
relatives; and the seventh was the appointment of the appellant Santiago as executrix of the
will without bond. The technical description of the properties in paragraph 5 of Exhibit F was
not given and the numbers of the certificates of title were only supplied by Atty. Paraiso."
It is true that in one disposition, the numbers of the Torrens titles of the properties disposed
and the docket number of a special proceeding are indicated which Atty. Paraiso candidly
admitted were supplied by him, whereupon petitioner contends that it was incredible that Isabel
Gabriel could have dictated the will Exhibit "F" without any note or document to Atty. Paraiso,
considering that Isabel Gabriel was an old and sickly woman more than eighty-one years old
and had been suffering from a brain injury caused by two severe blows at her head and died of
terminal cancer a few weeks after the execution of Exhibit "F". While we can rule that this is a
finding of fact which is within the competency of the respondent appellate court in determining
the testamentary capacity of the testatrix and is, therefore, beyond Our power to revise and
review, We nevertheless hold that the conclusion reached by the Court of Appeals that the
testatrix dictated her will without any note or memorandum appears to be fully supported by
the following facts or evidence appearing on record. Thus, Isabel Gabriel, despite her age, was
particularly active in her business affairs as she actively managed the affairs of the movie
business Isabelita Theater, paying the aparatistas herself until June 4, 1961, 3 days before her
death. She was the widow of the late Eligio Naval, former Governor of Rizal Province and acted
as co-administratrix in the Intestate Estate of her deceased husband Eligio Naval. The text of
the will was in Tagalog, a dialect known and understood by her and in the light of all the
circumstances, We agree with the respondent Court that the testatrix dictated her will without
any note or memorandum, a fact unanimously testified to by the three attesting witnesses and
the notary public himself.
Petitioner's sixth assignment of error is also benefit of merit. The evidence, both testimonial and
documentary is, according to the respondent court, overwhelming that Matilde Orobia was
physically present when the will was signed on April 15, 1961 by the testatrix and the other two
73

witnesses, Celso Gimpaya and Maria Gimpaya. Such factual finding of the appellate court is very
clear, thus: "On the contrary, the record is replete with proof that Matilde Orobia was physically
present when the will was signed by Isabel Gabriel on April 15, 1961 along with her cowitnesses Celso Gimpaya and Maria Gimpaya. The trial court's conclusion that Orobia's
admission that she gave piano lessons to the child of the appellant on Wednesdays and
Saturdays and that April 15, 1961 happened to be a Saturday for which reason Orobia could not
have been present to witness the will on that day is purely conjectural. Witness Orobia did
not admit having given piano lessons to the appellant's child every Wednesday and Saturday
without fail. It is highly probable that even if April 15, 1961 were a Saturday, she gave no piano
lessons on that day for which reason she could have witnessed the execution of the will. Orobia
spoke of occasions when she missed giving piano lessons and had to make up for the same.
Anyway, her presence at the law office of Atty. Paraiso was in the morning of April 15, 1961
and there was nothing to preclude her from giving piano lessons on the afternoon of the same
day in Navotas, Rizal."
In addition to the testimony of Matilde Orobia, Celso Gimpaya and Maria Gimpaya that Matilde
was present on April 15, 1961 and that she signed the attestation clause to the will and on the
left-hand margin of each of the pages of the will, the documentary evidence which is the will
itself, the attestation clause and the notarial acknowledgment overwhelmingly and convincingly
prove such fact that Matilde Orobia was present on that day of April 15, 1961 and that she
witnessed the will by signing her name thereon and acknowledged the same before the notary
public, Atty. Cipriano P. Paraiso. The attestation clause which Matilde Orobia signed is the best
evidence as to the date of signing because it preserves in permanent form a recital of all the
material facts attending the execution of the will. This is the very purpose of the attestation
clause which is made for the purpose of preserving in permanent form, a record of the facts
attending the execution of the will, so that in case of failure in the memory of the subscribing
witnesses, or other casualty they may still be proved.(Thompson on Wills, 2nd ed., Sec. 132;
Leynez vs. Leynez, 68 Phil. 745). LLpr
As to the seventh error assigned by petitioner faulting the Court of Appeals in holding that the
trial court gave undue importance to the picture-takings as proof that the will was improperly
executed, We agree with the reasoning of the respondent court that: "Matilde Orobia's
identification of the photographer as "Cesar Mendoza", contrary to what the other two
witnesses (Celso and Maria Gimpaya) and Atty. Paraiso said that the photographer was
Benjamin Cifra, Jr., is at worst a minor mistake attributable to lapse of time. The law does not
require a photographer for the execution and attestation of the will. The fact that Miss Orobia
mistakenly identified the photographer as Cesar Mendoza scarcely detracts from her testimony
that she was present when the will was signed because what matters here is not the
photographer but the photograph taken which clearly portrays Matilde Orobia herself, her cowitnesses Celso Gimpaya." Further, the respondent Court correctly held: "The trial court gave
undue importance to the picture-takings, jumping therefrom to the conclusion that the will was
improperly executed. The evidence however, heavily points to only one occasion of the
execution of the will on April 15, 1961 which was witnessed by Matilde Orobia, Celso Gimpaya
and Maria Gimpaya. These witnesses were quite emphatic and positive when they spoke of this
occasion. Hence, their identification of some photographs wherein they all appeared along with
Isabel Gabriel and Atty. Paraiso was superfluous."
Continuing, the respondent Court declared: "It is true that the second picture-taking was
disclosed at the cross examination of Celso Gimpaya. But this was explained by Atty. Paraiso as
a reenactment of the first incident upon the insistence of Isabel Gabriel. Such reenactment
74

where Matilde Orobia was admittedly no longer present was wholly unnecessary if not pointless.
What was important was that the will was duly executed and witnessed on the first occasion on
April 15, 1961," and We agree with the Court's rationalization in conformity with logic, law and
jurisprudence which do not require picture-taking as one of the legal requisites for the
execution or probate of a will.
Petitioner points to alleged grave contradictions, evasions and misrepresentations of witnesses
in their respective testimonies before the trial court. On the other hand, the respondent Court
of Appeals held that said contradictions, evasions and misrepresentations had been explained
away. Such discrepancies as in the description of the typewriter used by Atty. Paraiso which he
described as "elite" which to him meant big letters which are of the type in which the will was
typewritten but which was identified by witness Jolly Bugarin of the N.B.I as "pica", the mistake
in mentioning the name of the photographer by Matilde Orobia to be Cesar Mendoza when
actually it was Benjamin Cifra, Jr. these are indeed unimportant details which could have
been affected by the lapse of time and the treachery of human memory such that by
themselves would not alter the probative value of their testimonies on the true execution of the
will, (Pascual vs. dela Cruz, 28 SCRA 421, 424) for it cannot be expected that the testimony of
every person will be identical and coinciding with each other with regard to details of an
incident and that witnesses are not expected to remember all details. Human experience teach
us "that contradictions of witnesses generally occur in the details of certain incidents, after a
long series of questionings, and far from being an evidence of falsehood constitute a
demonstration of good faith. 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 contradiction in their testimony." (Lopez vs. Liboro, 81 Phil. 429).
It is urged of Us by the petitioner that the findings of the trial court should not have been
disturbed by the respondent appellate court because the trial court was in a better position to
weigh and evaluate the evidence presented in the course of the trial. As a general rule,
petitioner is correct but it is subject to well-established exceptions. The right of the Court of
Appeals to review, alter and reverse the findings of the trial court where the appellate court, in
reviewing the evidence has found that facts and circumstances of weight and influence have
been ignored and overlooked and the significance of which have been misinterpreted by the
trial court, cannot be disputed. Findings of facts made by trial courts particularly when they are
based on conflicting evidence whose evaluation hinges on questions of credibility of contending
witnesses lies peculiarly within the province of trial courts and generally, the appellate court
should not interfere with the same. In the instant case, however, the Court of Appeals found
that the trial court had overlooked and misinterpreted the facts and circumstances established
in the record. Whereas the appellate court said that "Nothing in the record supports the trial
court's unbelief that Isabel Gabriel dictated her will without any note or document to Atty.
Paraiso;" that the trial court's conclusion that Matilde Orobia could not have witnessed anybody
signing the alleged will or that she could not have witnessed Celso Gimpaya and Maria Gimpaya
sign the same or that she witnessed only the deceased signing it, is a conclusion based not on
facts but on inferences; that the trial court gave undue importance to the picture-takings,
jumping therefrom to the conclusion that the will was improperly executed and that there is
nothing in the entire record to support the conclusion of the court a quo that the will-signing
occasion was a mere coincidence and that Isabel Gabriel made an appointment only with
Matilde Orobia to witness the signing of her will, then it becomes the duty of the appellate court
to reverse findings of fact of the trial court in the exercise of its appellate jurisdiction over the
lower courts. LLpr
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Still the petitioner insists that the case at bar is an exception to the rule that the judgment of
the Court of Appeals is conclusive as to the facts and cannot be reviewed by the Supreme
Court. Again We agree with the petitioner that among the exceptions are: (1) when the
conclusion is a finding grounded entirely on speculations, surmises or conjectures; (2) when the
inference is manifestly mistaken, absurd or impossible; (3) when there is a grave abuse of
discretion; (4) when the presence of each other as required by law. " Specifically, We affirm
that on April 15, 1961 the testatrix Isabel Gabriel, together with Matilde Orobia, Celso Gimpaya
and his wife Maria Gimpaya, and a photographer proceeded in a car to the office of Atty.
Cipriano Paraiso at the Bank of P.I. Building, Manila in the morning of that day; that on the
way, Isabel Gabriel obtained a medical certificate from one Dr. Chikiamko which she gave to
Atty. Paraiso upon arriving at the latter's office and told the lawyer that she wanted her will to
be made; that Atty. Paraiso asked Isabel Gabriel to dictate what she wanted to be written in the
will and the attorney wrote down the dictation of Isabel Gabriel in Tagalog, a language known
to and spoken by her; that Atty. Paraiso read back to her what he wrote as dictated and she
affirmed their correctness; the lawyer then typed the will and after finishing the document, he
read it to her and she told him that it was alright; that thereafter, Isabel Gabriel signed her
name at the end of the will in the presence of the three witnesses Matilde Orobia, Celso
Gimpaya and Maria Gimpaya and also at the left-hand margin of each and every page of the
document in the presence also of the said three witnesses; that thereafter Matilde Orobia
attested the will by signing her name at the end of the attestation clause and at the left-hand
margin of pages 1, 2, 3 and 5 of the document in the presence of Isabel Gabriel and the other
two witnesses, Celso Gimpaya and Maria Gimpaya; then, Celso Gimpaya signed also the will at
the bottom of the attestation clause and at the left-hand margin of the other pages of the
document in the presence of Isabel Gabriel, Matilde Orobia and Maria Gimpaya; that Maria
Gimpaya followed suit, signing her name at the foot of the attestation clause and at the lefthand margin of every page in the presence of Isabel Gabriel, Matilde Orobia and Celso
Gimpaya; that thereafter, Atty. Paraiso notarized the will as Page No. 94, Book No. IV, Series of
1961, in his Notarial Register. On the occasion of the execution and attestation of the will, a
photographer took pictures, one Exhibit "G", depicting Matilde Orobia, the testatrix Isabel
Gabriel, Celso Gimpaya, Maria Gimpaya and Atty. Paraiso, taken on said occasion of the signing
of the will, and another, Exhibit "H", showing Matilde Orobia signing testimony that he had
earlier advised Isabel Gabriel to bring with her at least the Mayor and a Councilor of Navotas,
Rizal to be her witnesses for he did not know beforehand the identities of the three attesting
witnesses until the latter showed up at his law office with Isabel Gabriel on April 15, 1961. Atty.
Paraiso's claim-which was not controverted that he wrote down in his own hand the date
appearing on page 5 of Exhibit "F" dissipates any lingering doubt that he prepared and ratified
the will on the date in question."
It is also a factual finding of the Court of Appeals in holding that it was credible that Isabel
Gabriel could have dictated the will, Exhibit "F", without any note or document to Atty. Paraiso
as against the contention of petitioner that it was incredible. This ruling of the respondent court
is fully supported by the evidence on record as stated in the decision under review, thus:
"Nothing in the record supports the trial court's unbelief that Isabel Gabriel dictated her will
without any note or document to Atty. Paraiso. On the contrary, all the three attesting
witnesses uniformly testified that Isabel Gabriel dictated her will to Atty. Paraiso and that other
than the piece of paper that she handed to said lawyer she had no note or document. This fact

76

jibes with the evidence which the trial court itself believed was unshaken that Isabel
Gabriel was of sound disposing memory when she executed her will.
Exhibit "F" reveals only seven (7) dispositions which are not complicated but quite simple. The
first was Isabel Gabriel's wish to be interred according to Catholic rites; the second was a
general directive to pay her debts if any; the third provided for P1,000.00 for her sister Praxides
Gabriel Vda. de Santiago and P2,000.00 for her brother Santiago Gabriel; the fourth was a
listing of her 13 nephews and nieces including oppositor-appellee Rizalina Gabriel and the
amount for each legatee; the fifth was the institution of the petitioner-appellant, Lutgarda
Santiago as the principal heir mentioning in general terms seven (7) types of properties; the
sixth disposed of the remainder of her estate which she willed in favor of appellant Lutgarda
Santiago but prohibiting the sale of such properties to anyone except in extreme situations in
which judgment is based on a misapprehension of facts; (5) when the findings of fact are
conflicting; (6) when the Court of Appeals, in making its findings, went beyond the issues of the
case and the same is contrary to the admissions of both appellant and appellee. (Roque vs.
Buan, et al., G.R. No. L-22459, Oct. 31, 1967; Ramos vs. Pepsi Cola Bottling Co., G.R. No. L22533, Feb. 9, 1967; Hilario, Jr. vs. City of Manila, G.R. No. L-19570; Sept. 14, 1967).
Petitioner's insistence is without merit. We hold that the case at bar does not fall within any of
the exceptions enumerated above. We likewise hold that the findings of fact of the respondent
appellate court are fully supported by the evidence on record. The conclusions are fully
sustained by substantial evidence. We find no abuse of discretion and We discern no
misapprehension of facts. The respondent Court's findings of fact are not conflicting. Hence, the
well-established rule that the decision of the Court of Appeals and its findings of fact are
binding and conclusive and should not be disturbed by this Tribunal and it must be applied in
the case at bar in its full force and effect, without qualification or reservation. The above
holding simply synthesizes the resolutions we have heretofore made in respect to petitioner's
previous assignments of error and to which We have disagreed and, therefore, rejected.
The last assignments of error of petitioner must necessarily be rejected by Us as We find the
respondent Court acted properly and correctly and has not departed from the accepted and
usual course of judicial proceedings as to call for the exercise of the power of supervision by the
Supreme Court, and as We find that the Court of Appeals did not err in reversing the decision of
the trial court and admitting to probate Exhibit "F", the last will and testament of the deceased
Isabel Gabriel.
We rule that the respondent Court's factual findings upon its summation and evaluation of the
evidence on record is unassailable that: "From the welter of evidence presented, we are
convinced that the will in question was executed on April 15, 1961 in the presence of Matilde
Orobia, Celso Gimpaya and Maria Gimpaya signing and witnessing the same in the will on a
table with Isabel Gabriel, Celso Gimpaya and Maria Gimpaya sitting around the table. Atty.
Paraiso, after finishing the notarial act, then delivered the original to Isabel Gabriel and retained
the other copies for his file and notarial register. A few days following the signing of the will,
Isabel Gabriel, Celso Gimpaya and another photographer arrived at the office of Atty. Paraiso
and told the lawyer that she wanted another picture taken because the first picture did not turn
out good. The lawyer told her that this cannot be done because the will was already signed but
Isabel Gabriel insisted that a picture be taken, so a simulated signing was performed during
which incident Matilde Orobia was not present." Cdpr
Petitioner's exacerbation centers on the supposed incredibility of the testimonies of the
witnesses for the proponent of the will, their alleged evasions, inconsistencies and
77

contradictions. But in the case at bar, the three instrumental witnesses who constitute the best
evidence of the will-making have testified in favor of the probate of the will. So has the lawyer
who prepared it, one learned in the law and long in the practice thereof, who thereafter
notarized it. All of them are disinterested witnesses who stand to receive no benefit from the
testament. The signatures of the witnesses and the testatrix have been identified on the will
and there is no claim whatsoever and by anyone, much less the petitioner, that they were not
genuine. In the last and final analysis, the herein conflict is factual and we go back to the rule
that the Supreme Court cannot review and revise the findings of facts of the respondent Court
of Appeals.
WHEREFORE, IN VIEW OF THE FOREGOING, the judgment appealed from is hereby AFFIRMED,
with costs against the petitioner.
SO ORDERED.
||| (Gonzales v. Court of Appeals, G.R. No. L-37453, May 25, 1979)

REVOCATION OF WILLS AND TESTAMENTARY DISPOSITIONS

On the Doctrine of Dependent Relative Revocation
[G.R. No. 76464. February 29, 1988.]
TESTATE ESTATE OF THE LATE ADRIANA MALOTO, ALDINA MALOTO CASIANO,
CONSTANCIO MALOTO, PURIFICACION MIRAFLOR, ROMAN CATHOLIC CHURCH OF
MOLO, AND ASILO DE MOLO, petitioners, vs. COURT OF APPEALS, PANFILO MALOTO
AND FELINO MALOTO,respondents.
SYLLABUS
1. CIVIL LAW; SUCCESSION; WILLS; REVOCATION THEREOF; PHYSICAL ACT OF
DESTRUCTION; ANIMUS REVOCANDI, A NECESSARY ELEMENT. The physical act of
destruction of a will, like burning in this case, does not per se constitute an effective revocation,
unless the destruction is coupled with animus revocandi on the part of the testator. It is not
imperative that the physical destruction be done by the testator himself. It may be performed
by another person but under the express direction and in thepresence of the testator. Of
course, it goes without saying that the document destroyed must be the will itself. In this case,
while animus revocandi, or the intention to revoke, may be conceded, for that is a state of
mind, yet that requisite alone would not suffice. "Animus revocandi is only one of the necessary
elements for the effective revocation of a last will and testament. The intention to revoke must
be accompanied by the overt physical act of burning, tearing, obliterating, or cancelling the will
carried out by the testator or by another person in his presence and under his express direction.
2. REMEDIAL LAW; CIVIL ACTIONS; RES JUDICATA; ELEMENTS. For a judgment to be a bar
to a subsequent case, the following requisites must concur: (1) the presence of a final former
judgment; (2) the former judgment was rendered by a court having jurisdiction over the subject
matter and the parties; (3) the former judgment is a judgment on the merits; and (4) there is,
between the first and the second action, identity of parties, of subject matter, and of cause of
action. We do not find here the presence of all the enumerated requisites.
3. ID.; ID.; ID.; DOCTRINE NOT APPLICABLE IN CASE AT BAR. There is yet, strictly
speaking, no final judgment rendered insofar as the probate of Adriana Maloto's will is
78

concerned. The decision of the trial court in Special Proceeding No. 1736, although final,
involved only the intestate settlement of the estate of Adriana. As such, that judgment could
not in any manner be construed to be final with respect to the probate of the subsequently
discovered will of the decedent. Neither is it a judgment on the merits of the action for probate.
This is understandably so because the trial court, in the intestate proceeding, was without
jurisdiction to rule on the probate of the contested will. After all, an action for probate, as it
implies, is founded on the presence of a will and with the objective of proving its due execution
and validity, something which can not be properly done in an intestate settlement of estate
proceeding which is predicated on the assumption that the decedent left no will. Thus, there is
likewise no identity between the cause of action in intestate proceeding and that in an action
for probate. Be that as it may, it would be remembered that it was precisely because of our
ruling in G.R. No. L-30479 that the petitioners instituted this separate action for the probate of
the late Adriana Maloto's will. Hence, on these grounds alone, the position of the private
respondents on this score can not be sustained.
DECISION
SARMIENTO, J p:
This is not the first time that the parties to this case come to us. In fact, two other cases
directly related to the present one and involving the same parties had already been decided by
us in the past. In G.R. No. L-30479, 1which was a petition for certiorari and mandamus
instituted by the petitioners herein, we dismissed the petition ruling that the more appropriate
remedy of the petitioners is a separate proceeding for the probate of the will in question.
Pursuant to the said ruling, the petitioners commenced in the then Court of First Instance of
Iloilo, Special Proceeding No. 2176, for the probate of the disputed will, which was opposed by
the private respondents presently, Panfilo and Felino, both surnamed Maloto. The trial court
dismissed the petition on April 30, 1970. Complaining against the dismissal, again, the
petitioners came to this Court on a petition for review by certiorari. 2 Acting on the said
petition, we set aside the trial court's order and directed it to proceed to hear the case on the
merits. The trial court, after hearing, found the will to have already been revoked by the
testatrix. Adriana Maloto, and thus, denied the petition. The petitioners appealed the trial
court's decision to the Intermediate Appellate Court which, on June 7, 1985, affirmed the order.
The petitioners' motion for reconsideration of the adverse decision proved to be of no avail,
hence, this petition.
For a better understanding of the controversy, a factual account would be a great help.
On October 20, 1963, Adriana Maloto died leaving as heirs her niece and nephews, the
petitioners Aldina Maloto-Casiano and Constancio Maloto, and the private respondents Panfilo
Maloto and Felino Maloto. Believing that the deceased did not leave behind a last will and
testament, these four heirs commenced on November 4, 1963 an intestate proceeding for the
settlement of their aunt's estate. The case was instituted in the then Court of First Instance of
Iloilo and was docketed as Special Proceeding No. 1736. However, while the case was still in
progress, or to be exact on February 1, 1964, the parties Aldina, Constancio, Panfilo, and
Felino executed an agreement of extrajudicial settlement of Adriana's estate. The agreement
provided for the division of the estate into four equal parts among the parties. The Malotos then
presented the extrajudicial settlement agreement to the trial court for approval which the court
did on March 21, 1964. That should have signalled the end of the controversy, but,
unfortunately, it had not.
79

Three years later, or sometime in March 1967, Atty. Sulpicio Palma, a former associate of
Adriana's counsel, the late Atty. Eliseo Hervas, discovered a document entitled "KATAPUSAN
NGA PAGBULUT-AN (Testamento)," dated January 3, 1940, and purporting to be the last will
and testament of Adriana. Atty. Palma claimed to have found the testament, the original copy,
while he was going through some materials inside the cabinet drawer formerly used by Atty.
Hervas. The document was submitted to the office of the clerk of the Court of First Instance of
Iloilo on April 1, 1967. Incidentally, while Panfilo and Felino are still named as heirs in the said
will, Aldina and Constancio are bequeathed much bigger and more valuable shares in the estate
of Adriana than what they received by virtue of the agreement of extrajudicial settlement they
had earlier signed. The will likewise gives devises and legacies to other parties, among them
being the petitioners Asilo de Molo, the Roman Catholic Church of Molo, and Purificacion
Miraflor.
Thus, on May 24, 1967, Aldina and Constancio, joined by the other devisees and legatees
named in the will, filed in Special Proceeding No. 1736 a motion for reconsideration and
annulment of the proceedings therein and for the allowance of the will. When the trial court
denied their motion, the petitioner came to us by way of a petition for certiorari and mandamus
assailing the orders of the trial court. 3 As we stated earlier, we dismissed that petition and
advised that a separate proceeding for the probate of the alleged will would be the appropriate
vehicle to thresh out the matters raised by the petitioners.
Significantly, the appellate court while finding as inconclusive the matter on whether or not the
document or papers allegedly burned by the househelp of Adriana, Guadalupe Maloto Vda. de
Coral, upon instructions of the testatrix, was indeed the will, contradicted itself and found that
the will had been revoked. The respondent court stated that the presence ofanimus
revocandi in the destruction of the will had, nevertheless, been sufficiently proven. The
appellate court based its finding on the facts that the document was not in the two safes in
Adriana's residence, by the testatrix going to the residence of Atty. Hervas to retrieve a copy of
the will left in the latter's possession, and, her seeking the services of Atty. Palma in order to
have a new will drawn up. For reasons shortly to be explained, we do not view such facts, even
considered collectively, as sufficient bases for the conclusion that Adriana Maloto's will had been
effectively revoked.
There is no doubt as to the testamentary capacity of the testatrix and the due execution of the
will. The heart of the case lies on the issue as to whether or not the will was revoked by
Adriana.
The provisions of the new Civil Code pertinent to the issue can be found inArticle 830.

Art. 830. No will shall be revoked except in the following cases:

(1) By implication of law; or
(2) By some will, codicil, or other writing executed as provided in case of wills: or
(3) By burning, tearing, cancelling, or obliterating the will with the intention of revoking it, by

the testator himself, or by some other person in his presence, and by his express direction. If
burned, torn, cancelled, or obliterated by some other person, without the express direction of
the testator, the will may still be established, and the estate distributed in accordance
therewith, if its contents, and due execution, and the fact of its unauthorized destruction,
cancellation, or obliteration are established according to the Rules of Court.(Emphasis
Supplied.)
80

It is clear that the physical act of destruction of a will, like burning in this case, does not per
se constitute an effective revocation, unless the destruction is coupled with animus
revocandi on the part of the testator. It is not imperative that the physical destruction be done
by the testator himself. It may be performed by another person but under the express
direction and in the presence of the testator. Of course, it goes without saying that the
document destroyed must be the will itself.

In this case, while animus revocandi, or the intention to revoke, may be conceded, for that is a
state of mind, yet that requisite alone would not suffice. "Animus revocandi is only one of the
necessary elements for the effective revocation of a last will and testament. The intention to
revoke must be accompanied by the overt physical act of burning, tearing, obliterating, or
cancelling the will carried out by the testator or by another person in his presence and under
his express direction. There is paucity of evidence to show compliance with these requirements.
For one, the document or papers burned by Adriana's maid, Guadalupe, was not satisfactorily
established to be a will at all, much less the will of Adriana Maloto. For another, the burning
was not proven to have been done under the express direction of Adriana. And then, the
burning was not in herpresence. Both witnesses, Guadalupe and Eladio, were one in stating that
they were the only ones present at the place where the stove (presumably in the kitchen) was
located in which the papers proffered as a will were burned.
The respondent appellate court in assessing the evidence presented by the private respondents
as oppositors in the trial court, concluded that the testimony of the two witnesses who testified
in favor of the will's revocation appear "inconclusive." We share the same view. Nowhere in the
records before us does it appear that the two witnesses, Guadalupe Vda. de Corral and Eladio
Itchon, both illiterates, were unequivocably positive that the document burned was indeed
Adriana's will. Guadalupe, we think, believed that the papers she destroyed was the will only
because, according to her, Adriana told her so. Eladio, on the other hand, obtained his
information that the burned document was the will because Guadalupe told him so, thus, his
testimony on this point is double hearsay.
At this juncture, we reiterate that "(it) is an important matter of public interest that a purported
will is not denied legalization on dubious grounds. Otherwise, the very institution of
testamentary succession will be shaken to its very foundations . . . " 4
The private respondents in their bid for the dismissal of the present action for probate instituted
by the petitioners argue that the same is already barred by res adjudicata. They claim that this
bar was brought about by the petitioners' failure to appeal timely from the order dated
November 16, 1968 of the trial court in the intestate proceeding (Special Proceeding No. 1736)
denying their (petitioners') motion to reopen the case, and their prayer to annul the previous
proceedings therein and to allow the last will and testament of the late Adriana Maloto. This is
untenable.
The doctrine of res adjudicata finds no application in the present controversy. For a judgment
to be a bar to a subsequent case, the following requisites must concur: (1) the presence of a
final former judgment; (2) the former judgment was rendered by a court having jurisdiction
over the subject matter and the parties; (3) the former judgment is a judgment on the merits;
and (4) there is, between the first and the second action, identity of parties, of subject matter,
and of cause of action. 5 We do not find here the presence of all the enumerated requisites.
81

For one, there is yet, strictly speaking, no final judgment rendered insofar as the probate of
Adriana Maloto's will is concerned. The decision of the trial court in Special Proceeding No.
1736, although final, involved only the intestate settlement of the estate of Adriana. As such,
that judgment could not in any manner be construed to be final with respect to the probate of
the subsequently discovered will of the decedent. Neither is it a judgment on the merits of the
action for probate. This is understandably so because the trial court, in the intestate
proceeding, was without jurisdiction to rule on the probate of the contested will. 6 After all, an
action for probate, as it implies, is founded on the presence of a will and with the objective of
proving its due execution and validity, something which can not be properly done in an
intestate settlement of estate proceeding which is predicated on the assumption that the
decedent left no will. Thus, there is likewise no identity between the cause of action in intestate
proceeding and that in an action for probate. Be that as it may, it would be remembered that it
was precisely because of our ruling in G.R. No. L-30479 that the petitioners instituted this
separate action for the probate of the late Adriana Maloto's will. Hence, on these grounds alone,
the position of the private respondents on this score can not be sustained.
One last note. The private respondents point out that revocation could be inferred from the fact
that "(a) major and substantial bulk of the properties mentioned in the will had been disposed
of; while an insignificant portion of the properties remained at the time of death (of the
testatrix); and, furthermore, more valuable properties have been acquired after the execution
of the will on January 3, 1940." 7 Suffice it to state here that as these additional matters raised
by the private respondents are extraneous to this special proceeding, they could only be
appropriately taken up after the will has been duly probated and a certificate of its allowance
issued.
WHEREFORE, judgment is hereby rendered REVERSING and SETTING ASIDE the Decision dated
June 7, 1985 and the Resolution dated October 22, 1986, of the respondent Court of Appeals,
and a new one ENTERED for the allowance of Adriana Maloto's last will and testament. Costs
against the private respondents.
This Decision is IMMEDIATELY EXECUTORY.
SO ORDERED.
||| (Testate Estate of Maloto v. Court of Appeals, G.R. No. 76464, February 29, 1988)

[G.R. No. L-12190. August 30, 1958.]

TESTATE ESTATE OF FELICIDAD ESGUERRA ALTO-YAP deceased. FAUSTO E.
GAN, petitioner-appellant, vs. ILDEFONSO YAP, oppositor-appellee.

Benedicto C. Balderrama, Crispn D. Baizas and Roberto H. Benitez for appellant.

Arturo M. Tolentino for appellee.
SYLLABUS
1. HOLOGRAPHIC WILLS; PROBATE OF; EXECUTION AND CONTENTS OF WILL, HOW PROVED.
The execution and the contents of a lost or destroyed holographic will may not be proved by
the bare testimony of witnesses who have seen and/or read such will. The will itself must be
presented; otherwise, it shall produce no effect. The law regards the document itself as
material proof of authenticity.
82

DECISION

BENGZON, J p:
On November 20, 1951, Felicidad Esguerra Alto Yap died of heart failure in the University of
Santo Tomas Hospital, leaving properties in Pulilan, Bulacan, and in the City of Manila.
On March 17, 1952, Fausto E. Gan initiated these proceedings in the Manila court of first
instance with a petition for the probate of a holographic will allegedly executed by the
deceased, substantially in these words:
"Nobyembre 5, 1951
Ako, si Felicidad E. Alto-Yap, may asawa, at ganap na pagiisip, ay nagsasalaysay na ang aking
kayamanan sa bayan ng Pulilan, Bulacan ay aking ipinamamana sa aking mga kamaganakang
sumusunod:
Vicente Esguerra, Sr. 5 Bahagi
Fausto E. Gan 2 Bahagi
Rosario E. Gan 2 Bahagi
Filomena Alto 1 Bahagi
Beatriz Alto 1 Bahagi
'At ang aking lahat ng ibang kayamanan sa Maynila at iba pang lugar ay aking ipinamamana sa
aking asawang si Ildefonso D. Yap sa kondisyong siya'y magpapagawa ng isang Health Center
na nagkakahalaga ng di kukulangin sa halagang P60,000.00 sa bayan ng Pulilan, Bulacan, na
nakaukit ang aking pagalang Felicidad Esguerra-Alto. At kung ito ay may kakulagan man ay
bahala na ang aking asawa ang magpuno upang matupad ang aking kagustuhan.'

(Lagda) Felicidad E. Alto-Yap"

Opposing the petition, her surviving husband Ildefonso Yap asserted that the deceased had not
left any will, nor executed any testament during her lifetime.
After hearing the parties and considering their evidence, the Hon. Ramon R. San Jose,
Judge, 1 refused to probate the alleged will. A seventy-page motion for reconsideration failed.
Hence this appeal.
The will itself was not presented. Petitioner tried to establish its contents and due execution by
the statements in open court of Felina Esguerra, Primitivo Reyes, Socorro Olarte and Rosario
Gan Jimenez, whose testimonies may be summarized as follows:

Sometime in 1950 after her last trip abroad, Felicidad Esguerra mentioned to her first cousin,
Vicente Esguerra, her desire to make a will. She confided however that it would be useless if
her husband discovered or knew about it. Vicente consulted with Fausto E. Gan, nephew of
Felicidad, who was then preparing for the bar examinations. The latter replied it could be done
without any witness, provided the document was entirely in her handwriting, signed and dated
by her. Vicente Esguerra lost no time in transmitting the information, and on the strength of it,
in the morning of November 5, 1951, in her residence at Juan Luna Street, Manila, Felicidad
wrote, signed and dated a holographic will substantially of the tenor above transcribed, in the
presence of her niece, Felina Esguerra (daughter of Vicente), who was invited to read it. In the
afternoon of that day, Felicidad was visited by a distant relative, Primitivo Reyes, and she
allowed him to read the will in the presence of Felina Esguerra, who again read it.
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Nine days later, he had other visitors: Socorro Olarte a cousin, and Rosario Gan Jimenez, a
niece. To these she showed the will, again in the presence of Felina Esguerra, who read it for
the third time.
When on November 19, 1951, Felicidad was confined at the U.S.T. Hospital for her last illness,
she entrusted the said will, which was contained in a purse, to Felina Esguerra. But a few hours
later, Ildefonso Yap, her husband, asked Felina for the purse; and being afraid of him by reason
of his well-known violent temper, she- delivered it to him. Thereafter, in the same day,
Ildefonso Yap returned the purse to Felina, only to demand it the next day shortly before the
death of Felicidad. Again, Felina handed it to him but not before she had taken the purse to the
toilet, opened it and read the will for the last time. 2
From the oppositor's proof it appears that Felicidad Esguerra had been suffering from heart
disease for several years before her death; that she had been treated by prominent physicians,
Dr. Agerico Sison, Dr. Agustin Liboro and others; that in May 1950 husband and wife journeyed
to the United States wherein for several weeks she was treated for the disease; that thereafter
she felt well and after visiting interesting places, the couple returned to this country in August
1950. However, her ailment recurred, she suffered several attacks, the most serious of which
happened in the early morning of the first Monday of November 1951 (Nov. 5). The whole
household was surprised and alarmed, even the teachers of the Harvardian Colleges occupying
the lower floors and owned by the Yap spouses. Physician's help was hurriedly called, and Dr.
Tanjuaquio arrived at about 8:00 a.m., found the patient hardly breathing, lying in bed, her
head held high by her husband. Injections and oxygen were administered. Following the
doctor's advice the patient stayed in bed, and did nothing the whole day, her husband and her
personal attendant, Mrs. Bantique, constantly at her side. These two persons swore that Mrs.
Felicidad Esguerra Yap made no will, and could have made no will on that day.
The trial judge refused to credit the petitioner's evidence for several reasons, the most
important of which were these: (a) if according to his evidence, the decedent wanted to keep
her will a secret, so that her husband would not know it, it is strange she executed it in the
presence of Felina Esguerra, knowing as she did that witnesses were unnecessary; (b) in the
absence of a showing that Felina was a confidant of the decedent it is hard to believe that the
latter would have allowed the former to see and read the will several times; (c) it is improbable
that the decedent would have permitted Primitivo Reyes, Rosario Gan Jimenez and Socorro
Olarte to read her will, when she precisely wanted its contents to remain a secret during her
lifetime; (d) it is also improbable that her purpose being to conceal the will from her husband
she would carry it around, even to the hospital, in her purse which could for one reason or
another be opened by her husband; (e) if it is true that the husband demanded the purse from
Felina in the U.S.T. Hospital and that the will was there, it is hard to believe that he returned it
without destroying the will, the theory of the petitioner being precisely that the will was
executed behind his back for fear he will destroy it.
In the face of these improbabilities, the trial judge had to accept the oppositor's evidence that
Felicidad did not and could not have executed such holographic will.
In this appeal, the major portion of appellant's brief discussed the testimony of the oppositor
and of his witnesses in a vigorous effort to discredit them. It appears that the same arguments,
or most of them, were presented in the motion to reconsider; but they failed to induce the
court a quo to change its mind. The oppositor's brief, on the other hand, aptly answers the
criticisms. We deem it unnecessary to go over the same matters, because in our opinion the
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case should be decided not on the weakness of the opposition but on the strength of the
evidence of the petitioner, who has the burden of proof.
The Spanish Civil Code permited the execution of holographic wills along with other forms. The
Code of Civil Procedure (Act 190) approved August 7, 1901, adopted only one form, thereby
repealing the other forms, including holographic wills.
The New Civil Code effective in 1950 revived holographic wills in its arts. 810-814. "A person
may execute a holographic will which must be entirely written, dated, and signed by the hand
of the testator himself. It is subject to no other form and may be made in or out of the
Philippines, and need not be witnessed."
This is indeed a radical departure from the form and solemnities provided for wills under Act
190, which for fifty years (from 1901 to 1950) required wills to be subscribed by the testator
and three credible witnesses in each and every page; such witnesses to attest to the number of
sheets used and to the fact that the testator signed in their presence and that they signed in
the presence of the testator and of each other.
The object of such requirements it has been said, is to close the door against bad faith and
fraud, to prevent substitution of wills, to guarantee their truth and authenticity (Abangan vs.
Abangan, 40 Phil., 476) and to avoid that those who have no right to succeed the testator
would succeed him and be benefited with the probate of same. (Mendoza vs. Pilapil, 40 off.
Gaz., 1855). However, formal imperfections may be brushed aside when authenticity of the
instrument is duly proved. (Rodriguez vs. Yap, 40 Off. Gaz. Ist Supp. No. 3 p. 194.).
Authenticity and due execution is the dominant requirement to be fulfilled when such will is
submitted to the courts for allowance. For that purpose the testimony of one of the subscribing
witnesses would be sufficient, if there is no opposition (Sec. 5, Rule 77). If there is, the three
must testify, if available. (Cabang vs. Delfinado 34 Phil., 291; Tolentino vs. Francisco, 57 Phil.,
742). From the testimony of such witnesses (and of other additional witnesses) the court may
form its opinion as to the genuineness and authenticity of the testament, and the circumstances
of its due execution.
Now, in the matter of holographic wills, no such guaranties of truth and veracity are demanded,
since as stated, they need no witnesses; provided however, that they are "entirely written,
dated, and signed by the hand of the testator himself." The law, it is reasonable to suppose,
regards the document itself as material proof of authenticity, and as its own safeguard, since it
could at any time, be demonstrated to be or not to be in the hands of the testator himself.
"In the probate of a holographic will" says the New Civil Code, "it shall be necessary that at
least one witness who knows the handwriting and signature of the testator explicitly declare
that the will and the signature are in the handwriting of the testator. If the will is contested, at
least three such witnesses shall be required. In the absence of any such witnesses, (familiar
with decedent's handwriting) and if the court deem it necessary, expert testimony may be
resorted to."

The witnesses so presented do not need to have seen the execution of the holographic will.
They may be mistaken in their opinion of the handwriting, or they may deliberately lie in
affirming it is in the testator's hand. However, the oppositor may present other witnesses who
also know the testator's handwriting, or some expert witnesses, who after comparing the will
with other writings or letters of the deceased, have come to the conclusion that such will has
85

not been written by the hand of the deceased. (Sec. 50, Rule 123). And the court, in view of
such contradictory testimony may use its own visual sense, and decide in the face of the
document, whether the will submitted to it has indeed been written by the testator.
Obviously, when the will itself is not submitted, these means of opposition, and of assessing the
evidence are not available. And thenthe only guaranty of authenticity 3 the testator's
handwriting has disappeared.
Therefore, the question presents itself, may a holographic will be probated upon the testimony
of witnesses who have allegedly seen it and who declare that it was in the handwriting of the
testator? How can the oppositor prove that such document was not in the testator's
handwriting? His witnesses who know testator's handwriting have not examined it. His experts
can not testify, because there is no way to compare the alleged testament with other
documents admittedly, or proven to be, in the testator's hand. The oppositor will, therefore, be
caught between the upper millstone of his lack of knowledge of the will or the form thereof,
and the nether millstone of his inability to prove its falsity. Again the proponent's witnesses may
be honest and truthful; but they may have been shown a faked document, and having no
interest to check the authenticity thereof have taken no pains to examine and compare. Or they
may be perjurers boldly testifying, in the knowledge that none could convict them of perjury,
because no one could prove that they have not "been shown" a document which they
believed was in the handwriting of the deceased. Of course, the competency of such perjured
witnesses to testify as to the handwriting could be tested by exhibiting to them other writings
sufficiently similar to those written by the deceased; but what witness or lawyer would not
foresee such a move and prepare for it? His knowledge of the handwriting established, the
witness (or witnesses) could simply stick to his statement: he has seen and read a document
which he believed was in the deceased's handwriting. And the court and the oppositor would
practically be at the mercy of such witness (or witnesses) not only as to the execution, but also
as to the contents of the will. Does the law permit such a situation?
The Rules of Court, (Rule 77) approved in 1940, allow proof (and probate) of a lost or
destroyed will by secondary evidence the testimony of witnesses, in lieu of the original
document. Yet such Rules could not have contemplated holographic wills which could not then
be validly made here. (See also Sec. 46, Rule 123; Art. 830-New Civil Code.).
Could Rule 77 be extended, by analogy, to holographic wills?
Spanish commentators agree that one of the greatest objections to the holographic will is that it
may be lost or stolen 4 an implied admission that such loss or theft renders it useless.
This must be so, because the Civil Code requires it to be protocoled and presented to the judge,
(Art. 689) who shall subscribe itand require its identity to be established by the three witnesses
who depose that they have no reasonable doubt that the will was written by the testator (Art.
691). And if the judge considers that the identity of the will has been proven he shall order
that it be filed (Art. 693). All these, imply presentation of the will itself. Art. 692 bears the same
implication, to a greater degree. It requires that the surviving spouse and the legitimate
ascendants and descendants be summoned so that they may make "any statement they may
desire to submit with respect to the authenticity of the will." As it is universally admitted that
the holographic will is usually done by the testator and by himself alone, to prevent others from
knowing either its execution or its contents, the above article 692 could not have the idea of
simply permitting such relatives to state whether they know of the will, but whether in the face
86

of the document itself they think the testator wrote it. Obviously, this they can't do unless the
will itself is presented to the Court and to them.
Undoubtedly, the intention of the law is to give the near relatives the choice of either complying
with the will if they think it authentic, or to oppose it, if they think it spurious. 5 Such purpose is
frustrated when the document is not presented for their examination. If it be argued that such
choice is not essential, because anyway the relatives may oppose, the answer is that their
opposition will be at a distinct disadvantage, and they have the right and privilege to comply
with the will, if genuine, a right which they should not be denied by withholding inspection
thereof from them.
We find confirmation of these ideas about exhibition of the document itself in the decision
of the Supreme Court of Spain of June 5, 1925, which denied protocolization or probate to a
document containing testamentary dispositions in the handwriting of the deceased, but
apparently mutilated, the signature and some words having been torn from it. Even in the face
of allegations and testimonial evidence (which was controverted), ascribing the mutilation to the
opponents of the will. The aforesaid tribunal declared that, in accordance with the provision of
the Civil Code (Spanish) the will itself, whole and unmutilated, must be presented; otherwise, it
shall produce no effect.
"Considerando que sentado lo anterior, y estableciendose en el parrafo segundo del articulo 688
del Codigo civil, que para que sea valido el testamento olografo debera estar escrito todo el y
firmado por testador, con expression del ao, mes y dia en que se otorque, resulta evidente
que para la validez y eficacia de esos testamentos, no basta la demostracion mas o menos
cumplida de que cuando se otorgaron se llenaron todos esos requisitos, sino que de la
expresada redaccion el precepto legal, y por el tiempo en que el verbo se emplea, se desprende
la necesidad de que el documento se encuentre en dichas condiciones en el momento de ser
presentado a la Autoridad competente, para su adveracion y protocolizacion; y como
consecuencia ineludible de ello, forzoso es affirmar que el de autos carece de validez y aficacia,
por no estar firmado por el testador,cualquiera que sea la causa de la falta de firma, y sin
perjuiciode las acciones que puedan ejercitar los perjudicados, bien para pedir indemnizacion
por el perjuicio a la persona culpable, si la hubiere, o su castigo en via criminal si procediere,
por constituir dicha omision un defecto insubsanable . . . ."
This holding aligns with the ideas on holographic wills in the Fuero Juzgo, admittedly the basis
of the Spanish Civil Code provisions on the matter. 6
"PRECEDENTES LEGALES Fuero Juzgo, libro segundo, titulo V, ley 15 E depues que los
herederos e sus fijos ovieren esta manda, fasta . . . annos muestrenla al obispo de la tierra, o al
juez fasta Vl meses y el obispo o el juez tomen otros tales tres escritos, que fuesen fechos por
su mano daquel que fizo la manda; e por aquellos escriptos, si semjara la letra de la manda,
sea confirmada la manda. E depues que todo esto fuere connoscido, el obispo o el juez, o otras
testimonios confirmen el escripto de la manda otra vez, y en esta manera vala la manda." (Art.
689, Scaevola - Codigo Civil.)
(According to the Fuero above, the will itself must be compared with specimens of the testators
handwriting.)
All of which can only mean: the courts will not distribute the property of the deceased in
accordance with his holographic will, unless they are shown his handwriting and signature. 7

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Parenthetically, it may be added that even the French Civil Law considers the loss of the
holographic will to be fatal. (Planiol y Ripert, Derecho Civil Frances, traduccion por Diaz Cruz,
1946, Tomo V, page 555).
Taking all the above circumstances together, we reach the conclusion that the execution and
the contents of a lost or destroyed holographic will may not be proved by the bare testimony of
witnesses who have seen and/or read such will. 8
Under the provisions of Art. 838 of the New Civil Code, we are empowered to adopt this opinion
as a Rule of Court for the allowance of such holographic wills. We hesitate, however, to make
this Rule decisive of this controversy, simultaneously with its promulgation. Anyway, decision of
the appeal may rest on the sufficiency, rather the insufficiency, of the evidence presented by
petitioner Fausto E. Gan.
At this point, before proceeding further, it might be convenient to explain why, unlike
holographic wills, ordinary wills may be proved by testimonial evidence when lost or destroyed.
The difference lies in the nature of the wills. In the first, the only guarantee of authenticity is
the handwriting itself; in the second, the testimony of the subscribing or instrumental witnesses
(and of the notary, now). The loss of the holographic will entails the loss of the only medium of
proof; if the ordinary will is lost, the subscribing witnesses are available to authenticate.
In the case of ordinary wills, it is quite hard to convince three witnesses (four with the notary)
deliberately to lie. And then their lies could be checked and exposed, their whereabouts and
acts on the particular day, the likelihood that they would be called by the testator, their
intimacy with the testator, etc. And if they were intimates or trusted friends of the testator they
are not likely to lend themselves to any fraudulent scheme to distort his wishes. Last but not
least, they can not receive anything on account of the will.

Whereas in the case of holographic wills, if oral testimony were admissible 9 only one man
could engineer the whole fraud this way: after making a clever or passable imitation of the
handwriting and signature of the deceased, he may contrive to let three honest and credible
witnesses see and read the forgery; and the latter, having no interest, could easily fall for it,
and in court they would in all good faith affirm its genuineness and authenticity. The will having
been lost the forger may have purposely destroyed it in an "accident" the oppositors have
no way to expose the trick and the error, because the document itself is not at hand. And
considering that the holographic will may consist of two or three pages, and only one of them
need be signed, the substitution of the unsigned pages, which may be the most important ones,
may go undetected.
If testimonial evidence of holographic wills be permitted, one more objectionable feature
feasibility of forgery would be added to the several objections to this kind of wills listed by
Castan, Sanchez Roman and Valverde and other well-known Spanish Commentators and
teachers of Civil Law. 10
One more fundamental difference: in the case of a lost will, the three subscribing witnesses
would be testifying to a fact which they saw, namely the act of the testator of subscribing the
will; whereas in the case of a lost holographic will, the witnesses would testify as to their
opinion of the handwriting which they allegedly saw, an opinion which can not be tested in
court, nor directly contradicted by the oppositors, because the handwriting itself is not at hand.
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Turning now to the evidence presented by the petitioner, we find ourselves sharing the trial
judge's disbelief. In addition to the dubious circumstances described in the appealed decision,
we find it hard to believe that the deceased should show her will precisely to relatives who had
received nothing from it: Socorro Olarte and Primitivo Reyes. These could pester her into
amending her will to give them a share, or threaten to reveal its execution to her husband
Ildefonso Yap. And this leads to another point: if she wanted so much to conceal the will from
her husband, why did she not entrust it to her beneficiaries? Opportunity to do so was not
lacking: for instance, her husband's trip to Davao, a few days after the alleged execution of the
will.
In fine, even if oral testimony were admissible to establish and probate a lost holographic will,
we think the evidence submitted by herein petitioner is so tainted with improbabilities and
inconsistencies that it fails to measure up to that "clear and distinct" proof required by Rule 77,
sec. 6. 11
Wherefore, the rejection of the alleged will must be sustained.
Judgment affirmed, with costs against petitioner.
||| (Gan v. Yap, G.R. No. L-12190, August 30, 1958)

[G.R. No. L-58509. December 7, 1982.]

IN THE MATTER OF THE PETITION TO APPROVE THE WILL OF RICARDO B. BONILLA,
deceased, MARCELA RODELAS,petitioner-appellant, vs. AMPARO ARANZA, ET
AL.,oppositors-appellees, ATTY. LORENZO SUMULONG,intervenor.

Luciano A. Joson for petitioner-appellant.

Cesar C. Paralejo for oppositor-appellee.
SYNOPSIS
The probate court ordered the dismissal of appellant's petition for the allowance of the
holographic will of deceased Ricardo B. Bonilla on the ground that the alleged photostatic copy
of the will which was presented for probate, cannot stand in lieu of the lost original, for the law
regards the document itself as the material proof of the authenticity of the said will, citing the
case of Gan vs. Yap, 104 Phil. 509, 522. On appeal, the only question is whether a holographic
will which was lost or cannot be found can be proved by means of a photostatic copy.

The Supreme Court, in setting aside the lower court's order of dismissal, held that a photostatic
or xerox copy of a lost or destroyed holographic will may be admitted because the authenticity
of the handwriting of the deceased can he determined by the probate court, as comparison can
be made with the standard writings of the testator.
Assailed order of dismissal, set aside.
SYLLABUS
1. CIVIL LAW; SUCCESSION; HOLOGRAPHIC WILLS; PROBATE THEREOF; DEFINITION.
Pursuant to Article 811 of the Civil Code, probate of holographic wills is the allowance of the will
by the Court after its due execution has been proved.
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2. ID.; ID.; ID.; ID.; NUMBER OF WITNESSES REQUIRED. The probate of holographic wills
may be uncontested or not. If uncontested, at least one identifying witness is required and, if
no witness is available, experts may be resorted to. If contested, at least three identifying
witnesses are required.
3. ID.; ID.; ID.; ID.; NOT POSSIBLE WHERE ORIGINAL WILL HAS BEEN LOST OR DESTROYED
AND NO OTHER COPY IS AVAILABLE; REASON. If the holographic will has been lost or
destroyed and no other copy is available, the will cannot be probated because the best and only
evidence is the handwriting of the testator in said will. It is necessary that there be a
comparison between sample handwritten statements of the testator and the handwritten will.
4. ID.; ID.; ID.; ID.; ID.; PHOTOSTATIC COPY OR XEROX COPY MAY BE ALLOWED; CASE AT
BAR. A photostatic copy or xerox copy of the holographic will may be allowed because
comparison can be made with the standard writings of the testator. In the case of Gan vs. Yap,
104 Phil. 509, the Court ruled that "the execution and the contents of a lost or destroyed
holographic will may not be proved by the bare testimony of witnesses who have seen and/or
read such will. The will itself must be presented; otherwise, it shall produce no effect. The law
regards the document itself as material proof of authenticity." But, in Footnote 8 of said
decision, it says that "Perhaps it may be proved by a photographic or photostatic copy. Even a
mimeographed or carbon copy; or by other similar means, if any, whereby the authenticity of
the handwriting of the deceased may be exhibited and tested before the probate court."
Evidently, the photostatic or xerox copy of the lost or destroyed holographic will may be
admitted because then the authenticity of the handwriting of the deceased can be determined
by the probate court.
DECISION

RELOVA, J p:
This case was certified to this Tribunal by the Court of Appeals for final determination pursuant
to Section 3, Rule 50 of the Rules of Court.
As found by the Court of Appeals:
". . . On January 11, 1977, appellant filed a petition with the Court of First Instance of Rizal for
the probate of the holographic will of Ricardo B. Bonilla and the issuance of letters testamentary
in her favor. The petition, docketed as Sp. Proc. No. 8432, was opposed by the appellees
Amparo Aranza Bonilla, Wilferine Bonilla Treyes, Expedita Bonilla Frias and Ephraim Bonilla on
the following grounds:
"(1) Appellant was estopped from claiming that the deceased left a will by failing to produce the
will within twenty days of the death of the testator as required by Rule 75, section 2 of the
Rules of Court:
"(2) The alleged copy of the alleged holographic will did not contain a disposition of property
after death and was not intended to take effect after death, and therefore it was not a will;
"(3) The alleged holographic will itself, and not an alleged copy thereof, must be produced,
otherwise it would produce no effect, as held in Gan v. Yap, 104 Phil. 509; and
"(4) The deceased did not leave any will, holographic or otherwise, executed and attested as
required by law.

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"The appellees likewise moved for the consolidation of the case with another case (Sp. Proc.
No. 8275). Their motion was granted by the court in an order dated April 4, 1977.
"On November 13, 1978, following the consolidation of the cases, the appellees moved again to
dismiss the petition for the probate of the will. They argued that:
"(1) The alleged holographic was not a last will but merely an instruction as to the management
and improvement of the schools and colleges founded by decedent Ricardo B. Bonilla; and
"(2) Lost or destroyed holographic wills cannot be proved by secondary evidence unlike ordinary
wills.
"Upon opposition of the appellant, the motion to dismiss was denied by the court in its order of
February 23, 1979.
"The appellees then filed a motion for reconsideration on the ground that the order was
contrary to law and settled pronouncements and rulings of the Supreme Court, to which the
appellant in turn filed an opposition. On July 23, 1979, the court set aside its order of February
23, 1979 and dismissed the petition for the probate of the will of Ricardo B. Bonilla. The court
said:
'. . . It is our considered opinion that once the original copy of the holographic will is lost, a
copy thereof cannot stand in lieu of the original.
'In the case of Gan vs. Yap, 104 Phil. 509, 522, the Supreme Court held that 'in the matter of
holographic wills the law, it is reasonable to suppose, regards the document itself as the
material proof of authenticity of said wills.
'MOREOVER, this Court notes that the alleged holographic will was executed on January 25,
1962 while Ricardo B. Bonilla died on May 13, 1976. In view of the lapse of more than 14 years
from the time of the execution of the will to the death of the decedent, the fact that the original
of the will could not be located shows to our mind that the decedent had discarded before his
death his allegedly missing Holographic Will.
Appellant's motion for reconsideration was denied. Hence, an appeal to the Court of Appeals in
which it is contended that the dismissal of appellant's petition is contrary to law and well-settled
jurisprudence.
On July 7, 1980, appellees moved to forward the case to this Court on the ground that the
appeal does not involve question of fact and alleged that the trial court committed the following
assigned errors:

"I. THE LOWER COURT ERRED IN HOLDING THAT A LOST HOLOGRAPHIC WILL MAY NOT BE
PROVED BY A COPY THEREOF;
"II. THE LOWER COURT ERRED IN HOLDING THAT THE DECEDENT HAS DISCARDED BEFORE
HIS DEATH THE MISSING HOLOGRAPHIC WILL;
"III. THE LOWER COURT ERRED IN DISMISSING APPELLANT'S WILL."
The only question here is whether a holographic will which was lost or can not be found can be
proved by means of a photostatic copy. Pursuant to Article 811 of the Civil Code, probate of
holographic wills is the allowance of the will by the court after its due execution has been
proved. The probate may be uncontested or not. If uncontested, at least one identifying
witness is required and, if no witness is available, experts may be resorted to. If contested, at
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least three identifying witnesses are required. However, if the holographic will has been lost or
destroyed and no other copy is available, the will can not be probated because the best and
only evidence is the handwriting of the testator in said will. It is necessary that there be a
comparison between sample handwritten statements of the testator and the handwritten will.
But, a photostatic copy or xerox copy of the holographic will may be allowed because
comparison can be made with the standard writings of the testator. In the case of Gan vs. Yap,
104 Phil. 509, the Court ruled that "the execution and the contents of a lost or destroyed
holographic will may not be proved by the bare testimony of witnesses who have seen and/or
read such will. The will itself must be presented; otherwise, it shall produce no effect. The law
regards the document itself as material proof of authenticity." But, in Footnote 8 of said
decision, it says that "Perhaps it may be proved by a photographic or photostatic copy. Even a
mimeographed or carbon copy; or by other similar means, if any, whereby the authenticity of
the handwriting of the deceased may be exhibited and tested before the probate court."
Evidently, the photostatic or xerox copy of the lost or destroyed holographic will may be
admitted because then the authenticity of the handwriting of the deceased can be determined
by the probate court.
WHEREFORE, the order of the lower court dated October 3, 1979, denying appellant's motion
for reconsideration dated August 9, 1979, of the Order dated July 23, 1979, dismissing her
petition to approve the will of the late Ricardo B. Bonilla, is hereby SET ASIDE.
SO ORDERED.
||| (In Re: Bonilla v. Aranza, G.R. No. L-58509, December 07, 1982)

[G.R. No. 26317. January 29, 1927.]

Estate of Miguel Mamuyac, deceased. FRANCISCO GAGO,petitioner-appellant, vs.
CORNELIO MAMUYAC, AMBROSIO LARIOSA, FELICIANA BAUZON, and
CATALINA MAMUYAC, opponents-appellees.

Nicanor Tavora for appellant.

Jose Rivera for appellees.
SYLLABUS
1. WILLS, CANCELLATION OF; PRESUMPTION. The law does not require any evidence of the
revocation or cancellation of the will to be preserved. It therefore becomes difficult at times to
prove the cancellation or revocation of wills. The fact that such cancellation or revocation has
taken place must either remain unproved or be inferred from evidence showing that after due
search the original will cannot be found. Where a will which cannot be found is shown to have
been in the possession of the testator, when last seen, the presumption is in the absence of
other competent evidence, that the same was cancelled or destroyed. The same presumption
arises where it is shown that the testator had ready access to the will and it cannot be found
after his death. It will not be presumed that such will has been destroyed by any other person
without the knowledge or authority of the testator.
DECISION
JOHNSON, J p:
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The purpose of this action was to obtain the probation of a last will and testament of
Miguel Mamuyac, who died on the 2d day of January, 1922, in the municipality of Agoo of the
Province of La Union. It appears from the record that on or about the 27th day of July, 1918,
the said Miguel Mamuyac executed a last will and testament (Exhibit A). In the month of
January, 1922, the said Francisco Gago presented a petition in the Court of First Instance of the
Province of La Union for the probation of that will. The probation of the same was opposed by
Cornelio Mamuyac, Ambrosio Lariosa, Feliciana Bauzon, and CatalinaMamuyac (civil cause No.
1144, Province of La Union). After hearing all of the parties the petition for the probation of said
will was denied by the Honorable C. M. Villareal on the 2d day of November, 1923, upon the
ground that the deceased had on the 16th day of April, 1919, executed a new will and
testament.
On the 21st day of February, 1925, the present action was commenced. Its purpose was to
secure the probation of the said will of the 16th day of April, 1919 (Exhibit 1). To said petition
CornelioMamuyac, Ambrosio Lariosa, Feliciana Bauzon, and Catalina Mamuyacpresented their
oppositions, alleging (a) that the said will is a copy of the second will and testament executed
by the said Miguel Mamuyac; (b) that the same had been cancelled and revoked during the
lifetime of Miguel Mamuyac and (c) that the said will was not the last will and testament of the
deceased Miguel Mamuyac.
Upon the issue thus presented, the Honorable Anastasio R. Teodoro, judge, after hearing the
respective parties, denied the probation of said will of April 16, 1919, upon the ground that the
same had been cancelled and revoked in the year 1920. Judge Teodoro, after examining the
evidence adduced, found that the following facts had been satisfactorily proved:
"That Exhibit A is a mere carbon copy of its original which remained in the possession of the
deceased testator Miguel Mamuyac, who revoked it before his death as per testimony of
witnesses Jose Fenoy, who typed the will of the testator on April 16, 1919, and Carlos Bejar,
who saw on December 30, 1920, the original of Exhibit A (will of 1919) actually cancelled by the
testator Miguel Mamuyac, who assured Carlos Bejar that inasmuch as he had sold him a house
and the land where the house was built, he had to cancel it the will of 1919), executing thereby
a new testament. Narcisa Gago in a way corroborates the testimony of Jose Fenoy, admitting
that the will executed by the deceased (Miguel Mamuyac) in 1919 was found in the possession
of father Miguel Mamuyac. The opponents have successfully established the fact that father
Miguel Mamuyac had executed in 1920 another will. The same Narcisa Gago, the sister of the
deceased, who was living in the house with him, when cross-examined by attorney for the
opponents, testified that the original of Exhibit A could not be found. For the foregoing
consideration and for the reason that the original of Exhibit A has been cancelled by the
deceased father Miguel Mamuyac, the court disallows the probate of Exhibit A for the
applicant." From that order the petitioner appealed.
The appellant contends that the lower court committed an error in not finding from the
evidence that the will in question had been executed with all the formalities required by the
law; that the same had been revoked and cancelled in 1920 before his death; that the said will
was a mere carbon copy and that the oppositors were not estopped from alleging that fact.
With reference to the said cancellation, it may be stated that there is positive proof, not denied,
which was accepted by the lower court, that the will in question had been cancelled in 1920.
The law does not require any evidence of the revocation or cancellation of a will to. be
preserved. It therefore becomes difficult at times to prove the revocation or cancellation of
wills. The fact that such cancellation or revocation has taken place must either remain unproved
93

or be inferred from evidence showing that after due search the original will cannot be found.
Where a will which cannot be found is shown to have been in the possession of the testator,
when last seen, the presumption is, in the absence of other competent evidence, that the same
was cancelled or destroyed. The same presumption arises where it is shown that the testator
had ready access to the will and it cannot be found after his death. It will not be presumed that
such will has been destroyed by any other person without the knowledge or authority of the
testator. The force of the presumption of cancellation or revocation by the testator, while
varying greatly, being weak or strong according to the circumstances, is never conclusive, but
may be overcome by proof that the will was not destroyed by the testator with intent to revoke
it.
In view of the fact that the original will of 1919 could not be found after the death of the
testator Miguel Mamuyac and in view of the positive proof that the same had been cancelled,
we are forced to the conclusion that the conclusions of the lower court are in accordance with
the weight of the evidence. In a proceeding to probate a will the burden of proof is upon the
proponent clearly to establish not only its execution but its existence. Having proved its
execution by the proponents, the burden is on the contestant to show that it has been revoked.
In a great majority of instances in which wills are destroyed for the purpose of revoking them
there is no witness to the act of cancellation or destruction and all evidence of its cancellation
perishes with the testator. Copies of wills should be admitted by the courts with great caution.
When it is proven, however, by proper testimony that a will was executed in duplicate and each
copy was executed with all the formalities and requirements of the law, the duplicate may be
admitted in evidence when it is made to appear that the original has been lost and was not
cancelled or destroyed by the testator. (Borromeo vs. Casquijo, G.R. No. 26063.) 1
After a careful examination of the entire record, we are fully persuaded that the will presented
for probate had been cancelled by the testator in 1920. Therefore the judgment appealed from
is hereby affirmed. And without any finding as to costs, it is so ordered.
||| (Gago v. Mamuyac, G.R. No. 26317, January 29, 1927)

ALLOWANCE AND DISALLOWANCE OF WILLS

Need for a probate
[G.R. No. L-18788. January 31, 1964.]
ROMULO LOPEZ, ET AL., plaintiffs-appellants, vs. LUIS GONZAGA, ET
AL., defendants. LUIS GONZAGA and ASUNCION GONZAGA, defendants-appellants.

Lakandola G. Lopez and Romulo Lopez for plaintiffs-appellants.

Amalia K. del Rosario for defendants-appellants.
SYLLABUS
1. WILLS; PROBATE; ORDER OF ADJUDICATION BY COURT DISTINGUISHED FROM
TESTAMENTARY INSTITUTION OF HEIR; CASE AT BAR. The order of adjudication is the
judicial recognition that in appointing a person as her only heir the testatrix did not contravene
the law, and that the heir was in no way disqualified to inherit; just as a final order admitting a
will to probate concludes all and sundry from thereafter contending that statutory formal
94

requirements have not been observed in executing the testament. In the case at bar, instead of
contradicting the testamentary institution of heir, the order of adjudication confirms it.
2. ID.; ID.; NOTICE TO INTERESTED PARTIES; RECORDING OF JUDICIAL ORDER SUFFICIENT.
The failure of the defendant heir, in the case at bar, to file with the Register of Deeds a
certified copy of his letters of administration and the will, as provided in Sec. 90 of Act 496, and
to record the attested copies of the will and of the allowance thereof by the court under Section
624 of Act 190, does not negate the validity of the judgment or decree of probate nor the rights
of the devises under the will, because said Section 90 refers to the dealings with registered
lands by an administrator, and defendant heir in the case at bar sought and obtained the
change in the certificates of title in his own behalf and capacity, and the recording of the
judicial orders sufficed as notice to interested parties, and was a substantial compliance with
the required recording of the will itself.

3. ID.; ID.; ADMINISTRATOR AS TRUSTEE; TERMINATION OF TRUSTS; BY APPROVAL OF

FINAL ACCOUNT AND BY TRANSFER OF TITLE TO FORMER TRUSTEE THRU REPUDIATION
AND PRESCRIPTION. The contention that defendant-appellee in the case at bar, having been
appointed administrator, must be deemed a trustee up to the present is infantile, because first,
no administration could continue to exist after the order of the court had approved the final
account, adjudicated the property to the only heir, cancelled the bond of the administrator, and
ordered the case "archivado el mismo por terminado," and no proof exists that the proceedings
were ever reopened; and secondly, the transfer of the certificates of title to the defendant's
own name in 1936 would constitute an open and clear repudiation of any trust, and the lapse of
more than twenty years' open and adverse possession as owner would certainly suffice to vest
title by prescription in the defendant-appellee, since appellants, who knew of the death of the
testatrix in 1935, never made any move to require the defendant to reconvey the property.
4. ID.; ID.; DUE PROCESS; DAY IN COURT NOT DENIED TO PARTIES REPRESENTED BY
COUNSEL. Where the authority of their counsel to appear for them was never questioned by
appellants until the adverse decision was rendered by the court below, their contention that
they were denied their day in court is incredible, and appears to be but a last minute attempt to
escape the adverse effect of the appealed decision.
DECISION
REYES, J.B.L., J p:
Joint and direct appeal by both parties-plaintiffs and parties-defendants from the decision of the
Court of First Instance of Negros Occidental (in its Civil Case No. 5033) to this Supreme Court,
because the properties involved are valued at more than P200,000.00. The appealed decision
dismissed the petition of plaintiffs (appellants) for partition and cancellation of titles of
registered lands, and ordered them to pay defendants (appellees) P1,000.00. by way of
attorney's fees, but refused to award moral damages in favor of the defendants.
The original petition was filed with the court a quo on 6 October 1958, alleging among other
things, that one Soledad Gonzaga Vda. de Ferrer died intestate on 11 April 1935 without any
issue and leaving real and personal properties worth P400,000.00; that she was survived by the
plaintiffs, who are her nearest of kin, being her brothers, sisters, nephews, and nieces; that
during the lifetime of the deceased, she expressed the wish that as long as her brother, Luis
Gonzaga, the principal defendant, was engaged in his coconut oil experimentation he could use
the products and rentals of her properties in furtherance of his experiments; that the said
scientific venture by the said defendant was discontinued when be became totally blind in
95

October, 1955, in view of which the plaintiffs now ask a partition of the estate and the
cancellation of titles of lands allegedly fraudulently transferred by, and in the name of, the
defendant.
The defendant filed a motion to dismiss on the grounds of res judicata and non-inclusion of
indispensable parties. The plaintiffs amended their petition to include the omitted parties. After
hearing on the motion to dismiss, the court denied the said motion. Thereupon, the defendants
filed their answer repleading a denial as to the intestacy of the deceased, and alleging, among
others, that a will of Soledad Gonzaga Vda. de Ferrer instituted Luis Gonzaga as the sole heir to
her entire estate, and that the will was duly allowed and probated.
After trial, the court a quo rendered judgment, and both parties appealed, as aforesaid.
The genuineness of the following documents, and the jurisdiction of the court, with respect to
them, are not disputed:
"REPUBLIC OF THE PHILIPPINES
COURT OF FIRST INSTANCE OF ILOILO
11th Judicial District
December 11, 1958.
TO WHOM IT MAY CONCERN:
This is to certify that according to the records of this office there is no Expediente No. 2163
entitled Estate of Doa Soledad Gonzaga Vda. de Ferrer, as all pre-war records were burned,
lost or destroyed during the World War II.
(Sgd) CIPRIANO CABALUNA
Clerk of Court"
"UNITED STATES OF AMERICA
COMMONWEALTH OF THE PHILIPPINES
COURT OF FIRST INSTANCE
OF OCCIDENTAL NEGROS
18th Judicial District.
G.L.R.O. CAD. RECORD No. 214
LOTS NOS. 414 and 424
CAD. SURVEY OF MANAPLA
PETITION
Luis Gonzaga y Jesena through the undersigned attorney, to the Honorable Court respectfully
follows:
That Soledad Gonzaga Vda. de Ferrer is the registered owner of Lots Nos. 414 and 424,
Cadastral Survey of Manapla, which parcel of land are described in Transfer Certificate of Title
Nos. 11460 and 13855, respectively.
96

That Soledad Gonzaga Vda. de Ferrer died on April 11, 1935, and she left all her properties in
favor of Luis Gonzaga y Jesena in her will, which will was probated on May 17, 1935, in the
Court of First Instance of Iloilo (Exp. No. 2163, Iloilo).
That the project of partition dated February 3, 1936, (Exp. No. 2163, Iloilo) a copy of which is
hereto attached in which the petitioner Luis Gonzaga y Jesena is the only heir, was approved by
the Honorable Court of Iloilo in its order dated February 8, 1936, a copy of the said order is
hereto attached.
WHEREFORE, in view of the foregoing, the petitioner respectfully prays the Honorable Court to
order the cancellation of Transfer Certificate of Title Nos. 11460 and 13855, Office of the
Register of Deeds of Occidental Negros, wherein Lots Nos. 414 and 424 are described, and in
lieu thereof to issue Transfer Certificate of Titles for Lots 414 and 424, Cadastral Survey of
Manapla, Occidental Negros, in favor of Luis Gonzaga y Jesena, single, of legal age, Filipino and
a resident of Manila, P. I.
Iloilo, Iloilo, for Bacolod, Occ. Neg. P. I. March 11, 1936.
(Sgd.) FRANCISCO S. HORTILLAS
Attorney for the petitioner
2 General Luna, Iloilo.
I, Francisco S. Hortillas, of legal age, after having been duly sworn, depose and say: That I am
the attorney for the petitioner in the above case, and that all the allegations contained in the
foregoing petition are true to the best of my information and belief.
(Sgd) FRANCISCO HORTILLAS
Subscribed and Sworn to before me this 11th day of March 1936. He exhibited to me his cedula
No. E-1250120, issued at Jaro, Iloilo, P.I., on January 16, 1936.
(Sgd) ILLEGIBLE
NOTARY PUBLIC
Until Dec. 31, 1937
Doc. No. 49
Page No. 60
Book No. 1
Series of 1936
The Register of Deeds
Bacolod City, Occ. Negros
Sir:
Please take notice that on Saturday, March 21, 1936, at 8:00 a.m. or soon thereafter as the
undersigned may be heard, he will submit the foregoing petition to this Honorable Court for
approval.
(Sgd) FRANCISCO S. HORTILLAS
97

I hereby certify that I have sent a copy of the foregoing petition to the Register of Deeds of
Occidental Negros evidenced by the registry receipt hereto attached.
(Sgd) FRANCISCO S. HORTILLAS
"UNITED STATES OF AMERICA
COMMONWEALTH OF THE PHILIPPINES
COURT OF FIRST INSTANCE OF ILOILO
17th Judicial District
TESTATE PROCEEDINGS OF
THE DECEASED SOLEDAD

GONZAGA VDA. DE FERRER, CIVIL CASE NO. 2163.

LUIS GONZAGA Y JESENA,
Petitioner.
PETITION FOR ADJUDICATION
The undersigned administrator to the Honorable Court respectfully states:
That the undersigned administrator, Luis Gonzaga y Jesena is the only heir mentioned in the
probated will of the late Sra. Soledad G. Vda. de Ferrer.
TOWN TITLE NO. PROVINCE VALUE

Manapla Trans. Cert. 8433 Occ. Neg. P25,230.00

Manapla Trans. Cert. 11460 Occ. Neg. 5,210.00
Manapla Trans. Cert. 13855 Occ. Neg. 7,310.00
Jaro Trans. Cert. 13051 Iloilo 510.00
Jaro Trans. Cert. 13054 Iloilo 500.00

P38,760.00
ACCOUNTS COLLECTIBLE AND CASH
Roman Sopena P1,100.00
Juan Sornito 330.00
Quintin Mejorada and others 2,800.00
Maria Ledesma and others 600.00
and Cash 1,018.54.
That there is a pending civil complaint against the administrator by Consolacion G. de Lopez, et
al., Civil Case No. 10321, Court of First Instance of Iloilo, demanding payment of the sum of
P833.40. The undersigned administrator is willing to file a cash bond for the sum object of the
98

complaint in case this expediente will be closed before the trial of the Civil Case No. 10321,
Iloilo.

Iloilo, P.I., February 3, 1936.

(Sgd.) FRANCISCO S. HORTILLAS
Attorney for the Administrator
2 General Luna, Iloilo
The Clerk of Court
Iloilo, Iloilo

Sir:
Please include the foregoing petition for adjudication in the calendar for Saturday, February 8,
1936.
(Sgd.) FRANCISCO S. HORTILLAS
A TRUE COPY:
(Sgd) TELESFORO GEDANG
Deputy Clerk of Court
17th Judicial District

Iloilo, P. I."
"ESTADOS UNIDOS DE AMERICA
COMMONWEALTH DE FILIPINAS
JUZGADO DE PRIMERA INSTANCIA DE
ILOILO
17.0 Distrito Judicial
TESTAMENTARIA GONZAGA
Expediente No. 2163.
AUTO
Previa prestacion por Luis Gonzaga y Jesena de una fianza por valor de P1,000.00 que tendra
por objecto responder al resultado de la causa civil No. 10321 de este Juzgado, titulada
'Consolacion G. de Lopez, et al., demandantes, contra Luis Gonzaga', se aprueba la cuenta final
de fecha enero 29, 1936, asi como el proyecto de particion de fecha 3 del actual. Queda
cancelada la fianza prestada por el administrador en este expediente, y archivado el mismo por
terminado.
Asi se ordena.
Iloilo, Iloilo, febrero 8, 1936.
99

M. BUYSON LAMPA

Juez.
A TRUE COPY:
(Sgd) TELESFORO GEDANG
Deputy Clerk of Court
17th Judicial District
Iloilo, P. I."
"ESTADOS UNIDOS DE AMERICA
MANCOMUNIDAD DE FILIPINAS
JUZGADO DE PRIMERA INSTANCIA DE
NEGROS OCCIDENTAL
18.0 Distrito Judicial
Expediente Cadastral No. 26 G.L.R.O. Cad. Rec.
ELGOBIERNO DE LAS ISLAS No. 214
FILIPINAS Lotes Nos. 414 y 424
Solicitante. CATASTRO DE MANAPLA

AUTO
Vista la peticion del solicitante Sr. Luis Gonzaga y Jesena, de fecha 11 de marzo de 1936, el
Juzgado, hallando de misma bien fundada;
Por el presente, ordena la cancelacion de los certificados de transferencia de titulo Nos. 11460 y
13855, sobre los lotes Nos. 414 y 424, respectivamente, del Catastro de Manapla, Negros
Occidental, y la expedicion de otros a favor de Luis Gozaga y Jesena, filipino, mayor de edad,
soltero y vecino de la ciudad de Manila, I. F, haciendose constar en los certificados que se han
de expedir todos los gravamenes que existen el los certificados de transferencia Nos. 11460 y
13855.
Asi se ordena.

Bacolod, Occ. Negros, 21 de marzo, 1936,

(FDO.) BRAULIO BAJASA
Juez.
"ESTADOS UNIDOS DE AMERICA
MANCOMUNIDAD DE FILIPINAS
JUZGADO DE PRIMERA INSTANCIA
DE NEGROS OCCIDENTAL
100

18.0 Distrito Judicial

EL GOBIERNO DE LAS Exp. de Reg. No. 72

ISLAS FILIPINAS, G.L.R.O. Rec, No. 10822
Solicitante Lote No, 313
LUIS GONZAGA Y JESENA, MANAPLA
Mocionante.
AUTO
Vista y considerada la mocion del solicitante Luis Gozaga y Jesena, de Fecha 11 de marzo de
1936, el Juzgado, hallando la misma bien fundada;

Por el presente, ordena la cancelacion del certificado de transferencia de titulo No, 8422 sobre
el Lote No. 313 del catastro de Manapla, Negros Occidental, y la expedicion de otro a favor de
Luis Gonzaga y Jesena, filipino, mayor de edad; soltero y vecino de la ciudad de Manila, I.F.,
haciendose constar en la certificado que se ha de expedir todos los gravamente que existen en
el certificado de transferencia candelado, se tuviere alguno.
Asi se ordena.
Bacolod, Occidental Negros, 21 de marzo, 1936.
(Sgd.) BRAULIO BEJASA
Juez.

BB/spm.
Received the foregoing document at 9:00 A.M. on May 7, 1936, and registered under Act 496
as follows:
Day Book, Vol. 6, Entry No. 49684.
Inscribed on page 101 of Book Vol. 87 of Transfer Certificate of Title as Certificate No. 21151.
Bacolod, Occ. Negros, May 7, 1936.
(Sgd.) MARIANO COREOVA
Register of Deeds"

"ESTADOS UNIDOS DE AMERICA

MANCOMUNIDAD DE FILIPINAS
JUZGADO DE PRIMERA INSTANCIA DE
ILOILO
17.0 Distrito Judicial
G.L.R.O. RECORD NO. 9959
ZOTES NOS. 1129-B y 1129-C
101

SITUADO EN EL MUNICIPIO DE

JARO
AUTO
Vista la peticion de Luis Gonzaga y Jesena cancelacion de los Certificados de Transferencia de
titulo numeros 10051 y 13054, por las razones expuestas en la misma, y encontrando el
Juzgado la misma bien fundada, por la presente ordena el Registrado de Titulos de la Provincial
del Iloilo cancela los Certificados de Transferencia de Titulos numeros 10051 y 13054 y expiden
otros en su lugar a nombre de Luis Gonzaga y Jesena, soltero, mayor de edad, filipino y vecino
de Manila, P.I.
Asi se ordena.
Iloilo, Iloilo, Marzo 25, 1936. M. BUYSON LAMPA
Juez
As a witness, the defendant's counsel, Atty. Amelia K. del Rosario, testified that the aforequoted
records of the probate court of Iloilo were discovered by her among the records of the cadastral
court in Negros Occidental.
Due to the destruction of the court and property records of Iloilo as a result of the last war, as
attested by the Clerk of Court, no will or probate order was produced, and neither were
attested copies registered with the Office of the Register of Deeds other than those previously
copied in this opinion; but the testimony of appellee and the copies of judicial pleadings and
orders obtained by him from the Registry of Deeds of Negros Occidental leave little room for
doubt that Doa Soledad Gonzaga died leaving a will instituting her nephew, the appellee Luis
Gonzaga y Jesena, as her sole testamentary heir, in default of forced heirs; that said will was
duly probated in 1935 or 1936 by the Court of First Instance of Iloilo in its Special Proceeding
No. 2163; that the net residue of the estate was adjudicated by the court to said appellee,
subject only to a claim of Consolacion G. de Lopez for P1,000.00 (Exh. 2); and that, thereafter,
upon sworn petition of appellee, through his counsel, Francisco S. Hortillas, the Courts of First
Instance of Iloilo (Exhibit 12) and Occidental Negros (Exhibit 3) ordered the respective
Provincial Registers of Deeds to cancel the Certificates of Title standing then in the name of the
deceased Soledad Gonzaga, and in lieu thereof to issue new certificates in the name of appellee
Luis Gonzaga y Jesena, as admittedly was done. In the course of the years prior to the
institution of this case in 1958, appellee held the properties and dealt with them as sole owner,
leasing, encumbering, and selling some of them.

We can not fail to be impressed by the statements of attorney Francisco Hortillas, averring
under oath in clear and unmistakable terms, not only once but twice, before the Courts of First
Instance of Iloilo and Negros (Exhibits 1 and 9), that the deceased Doa Soledad, in her
probated will, made Luis Gonzaga y Jesena the sole heir to her properties. These manifestations
are nigh conclusive, for the reason that attorney Hortillas was himself married to Monserrat
Gonzaga, a sister of Soledad, who would have been one of the latter's heirs intestate had it not
been for the testament in favor of the appellee. It taxes credulity beyond all reason to imply (as
appellants do) that attorney Hortillas, violating family ties and affection, conspired with appellee
to deprive his own wife and children (now some of present appellants) of their lawful share by
intestacy in the properties left by Doa Soledad, if it were untrue that the latter had duly and
properly bequeathed all her estate to appellee Luis Gonzaga. The authenticity of the sworn
petitions of the late attorney Hortillas (Exhibits a and 1) are not impugned, and they were
102

actually acted upon and granted by the two courts of first instance to which he addressed his
petitions.
Coupled with his undoubted possession as owner and with his own dominical acts exercised
over the former properties of Doa Soledad Gonzaga for twenty-two years (1936-1958), the
exhibits aforementioned constitute practically conclusive proof of the truth of appellee's
defenses, as found by the court below, despite the destruction of the original will and decree of
probate.
Plaintiffs-appellants, however, assail the trial court's admission of the said court records on the
ground that defendant-appellee failed to lay proper basis, or predicate, for their admission.
Granting that the original will was destroyed with the court records in the last war, it is averred
that appellee was duty-bound to produce the copy that, according to appellee's deposition, was
in the custody of Encarnacion Gonzaga, as well as that left with attorney Hortillas. The
argument is misleading. There is no proof that copies of the will ever existed other than the one
burned while in appellee's possession (Dep. p. 23), Page 24 of the appellee's deposition is to
the effect that
"My sister Encarnacion had the custody of the will because she was the one who was at the
bedside of my sister (referring to the testatrix Doa Soledad);
but by "the will" was obviously meant the one signed by the testatrix and the witnesses, not a
copy.
Similarly, the witness was asked,
"When you filed this petition through your lawyer for the probate of the will, am I correct that
you also presented a copy of the will?"
to which question the witness answered.
"The original was the one submitted".
From this answer, it certainly can not be inferred that Attorney Hortillas kept a copy of the
original submitted to the court.
Neither do we see that appellee was bound to call, or account, for the witnesses to the
testament. He was not trying to show that the will complied with the statutory requirements,
but that the will had been admitted to probate; and of course, the probate decree conclusively
established the due execution.
Appellants contend that if it were true that the will constituted Luis Gonzaga as sole heir, he
had no need to ask the court for an order of adjudication. There is no merit to this contention.
The order of adjudication is the judicial recognition that in appointing Luis as her only heir the
testatrix did not contravene the law, and that the heir was in no way disqualified to inherit; just
as a final order admitting a will to probate concludes all and sundry from thereafter contending
that statutory formal requirements have not been observed in executing the testament. Instead
of contradicting the testamentary institution of heir, the order of adjudication confirms it in this
case. It may well be noted, in passing, that the order of February 8, 1936 (Exhibit 1 or B)
speaks of approval of a "project of partition", while the petition of January 29, 1936 referred to
therein spoke of an order of adjudication to a single heir. Since the order made evident
reference to the petition of January 29, we agree with the court below that the difference in

103

terminology was an inadvertent mistake. Anyway, appellants do not claim under the will or the
partition; their theory is that Doa Soledad Gonzaga died intestate.

The failure of the defendant, Luis Gonzaga, to file with the Register of Deeds a certified copy of
his letters of administration and the will, as provided in Section 90 of Act 496, and to record the
attested copies of the will and of the allowance thereof by the court under Section 624 of Act
190, does not negate the validity of the judgment or decree of probate nor the rights of the
devisee under the will. Section 90 of Act 496 refers to the dealings with registered lands by an
executor or administrator; and while Luis Gonzaga was an administrator, this is beside the
point, because his dealings with the lands, if any, during his tenure as an administrator are not
here in question. That the defendant sought judicial orders to effect the transfers to his name
of the certificates of title after the will was probated, and succeeded in having them so
transferred, are not "dealings" with the property as administrator under section 90 of the
Registration Act. The defendant sought and obtained the change in title in his own behalf and
capacity. Although the step taken is not exactly what Section 624 of Act 190 directs, the same
purpose was achieved that of notice to all strangers of the cause and nature of the transfers;
and it does not appear that anyone was prejudiced by the defect in registration complained of.
At any rate, the recording of the judicial orders sufficed as notice to interested parties, and was
substantial compliance with the required recording of the will itself. No one faced by the
recorded documents could ignore the reference therein to the probated testament; and the rule
is that knowledge of what might have been revealed by proper inquiry is imputable to the
inquirer (cf. Emas vs. De Zuzuarregui, 53 Phil. 197, 204).
As to the fact that Luis Gonzaga paid the inheritance taxes as "executor or administrator", the
same is of no importance. It is usual for an Administrator to pay these taxes, since by law no
delivery of properties can be made to the heirs until and unless the inheritance taxes are paid
[Internal Revenue Code, Section 95(c)].
The contention that defendant-appellee, having been appointed Administrator, must be deemed
a trustee up to the present is infantile. In the first place, no administration could continue to
exist after the order of February 8, 1936 had approved the final account, adjudicated the
property to the only heir, cancelled the bond of the administrator, and ordered the case
"archivado el mismo por terminado". No proof exists that the proceedings were ever reopened.
Secondly, the transfer of the certificates of title to Luis Gonzaga's own name in 1936 would
constitute an open and clear repudiation of any trust, and the lapse of more than twenty years'
open and adverse possession as owner would certainly suffice to vest title by prescription in the
appellee, since appellants, who knew of the death of Doa Soledad in 1935, never made any
move to require Luis to reconvey the property, or any part thereof. The lame explanation that
Doa Soledad Gonzaga had expressed the wish that all the income should go to Luis while he
conducted experimental studies on coconut products is wholly unconvincing as an excuse for
the laches; his right to the income could not have blocked a partition of the capital assets
among appellants, if they had been at all entitled to them.
That some of the plaintiffs were denied their day in court is incredible, since all the plaintiffs
were represented by counsel Vicente Delfin, who claimed, and is presumed, to have been
authorized to appear in their behalf, and who did appear for them from the inception of the
case until after the lower court's decision was rendered. The authority of said counsel was
never questioned until the adverse decision was rendered by the court below; and the
complainant's failure to appear by themselves, or by other counsel, prior to the judgment is
104

mute but eloquent proof that their allegation that Delfin was not their attorney is but a last
minute attempt to escape the adverse effect of the appealed decision, a maneuver that
deserves no consideration.
Coming to the defendants' appeal: It is grounded on the disallowance of attorney's fees,
expenses, and moral damages. The lower court granted only P1,000.00 for attorney's fees, but
the defendants urge that the amount should be P41,000.00, based on an agreement of
P1,000.00 plus 10% of the value of the properties if the case is decided in their favor. The
other expenses refer to transportation, board and lodging, stenographic notes, photostatic
copies of exhibits, securing documents, and taking of deposition in the sum of P1,205.00. Moral
damages asked is P100,000.00.
The award of attorney's fees against the adverse party is essentially discretionary with the trial
court (Francisco vs. GSIS, L-18287, 30 March 1963), and, in the absence of an abuse of
discretion, the same should not be disturbed. The other expenses, unless recoverable as judicial
costs, cannot be allowed because the complaint, although unmeritorious, is not clearly
unfounded; moral damages, likewise, are not allowable because the suit is not a malicious
prosecution under No. 8 of Article 2219 of the Civil Code. The issue is one primarily addressed
to the discretion of the court below, which we are not inclined to disturb.
FOR THE FOREGOING REASONS, the appealed decision is hereby affirmed, with costs against
the plaintiffs-appellants.
||| (Lopez v. Gonzaga, G.R. No. L-18788, January 31, 1964)

Effect of no probate right is inchoate unless the will is probated

[G.R. No. 110427. February 24, 1997.]
The Incompetent, CARMEN CAIZA, represented by her legal guardian, AMPARO
EVANGELISTA, petitioner, vs. COURT OF APPEALS (SPECIAL FIRST DIVISION), PEDRO
ESTRADA and his wife, LEONORA ESTRADA, respondents.

Priscilla A. Villacorta for petitioner.

Montilla Law Office for private respondents.
SYLLABUS
1. REMEDIAL LAW; JURISDICTION; DETERMINED BY THE ALLEGATIONS IN THE COMPLAINT.
It is axiomatic that what determines the nature of an action as well as which court has
jurisdiction over it, are the allegations of the complaint and the character of the relief sought.
An inquiry into the averments of the amended complaint in the Court of origin is thus in order.
2. ID.; PROVISIONAL REMEDIES; ACTION FOR UNLAWFUL DETAINER; IT IS SUFFICIENT TO
ALLEGE THAT THE DEFENDANT IS UNLAWFULLY WITHHOLDING POSSESSION FROM THE
PLAINTIFF. It is settled that in an action for unlawful detainer, to allege that the defendant is
unlawfully withholding possession from the plaintiff is deemed sufficient, and a complaint for
unlawful detainer is sufficient if it alleges that the withholding of possession or the refusal to
vacate is unlawful without necessarily employing the terminology of the law.
3. ID.; ID.; ID.; PROPER WHEN A PERSON WHO OCCUPIES, OUT OF GENEROSITY, THE LAND
OF ANOTHER AND FAILS TO VACATE THE SAME UPON DEMAND BY THE OWNER; CASE AT
105

BAR. More than once has this Court adjudged that a person who occupies the land of
another at the latter's tolerance or permission without any contract between them is necessarily
bound by an implied promise that he will vacate upon demand, failing which a summary action
for ejectment is the proper remedy against him, The situation is not much different from that of
a tenant whose lease expires but who continues in occupancy by tolerance of the owner, in
which case there is deemed to be an unlawful deprivation or withholding of possession as of the
date of the demand to vacate. In other words, one whose stay is merely tolerated becomes a
deforciant illegally occupying the land or property the moment he is required to leave. Thus,
in Asset Privatization Trust vs. Court of Appeals, 229 SCRA 627, 636 [1994] where a company,
having lawfully obtained possession of a plant upon its undertaking to buy the same, refused to
return it after failing to fulfill its promise of payment despite demands this Court held that
"(a)fter demand and its repudiation, . . . (its) continuing possession . . . became illegal and the
complaint for unlawful detainer filed by the . . . (plant's owner) was its proper remedy." It may
not be amiss to point out in this connection that where there had been more than one demand
to vacate, the one-year period for filing the complaint for unlawful detainer must be reckoned
from the date of the last demand the reason being that the lessor has the option to waive his
right of action based on previous demands and let the lessee remain meanwhile in the
premises.
4. CIVIL LAW; SUCCESSION; A WILL HAS NO EFFECT WHATEVER AND NO RIGHT CAN BE
CLAIMED THEREUNDER UNTIL IT IS ADMITTED TO PROBATE. A will is essentially
ambulatory; at any time prior to the testator's death, it may be changed or revoked; and until
admitted to probate, it has no effect whatever and no right can be claimed thereunder, the law
being quite explicit: "No will shall pass either real or personal property unless it is proved and
allowed in accordance with the Rules of Court" (ART. 838, CIVIL CODE). An owner's intention to
confer title on the future to persons possessing property by his tolerance, is not inconsistent
with the former's taking back possession in the meantime for any reason deemed sufficient.
And that in this case there was sufficient cause for the owner's resumption of possession is
apparent: she needed to generate income from the house on account of the physical infirmities
afflicting her, arising from her extreme age.
5. REMEDIAL LAW; SPECIAL PROCEEDINGS; GUARDIANSHIP; DUTIES OF THE GUARDIAN;
CASE AT BAR. Amparo Evangelista was appointed by a competent court the general guardian
of both the person and the estate of her aunt, Carmen Caiza. Her Letters of Guardianship
dated December 19, 1989 clearly installed her as the "guardian over the person and
properties of the incompetent CARMEN CAIZA with full authority to take possession of the
property of said incompetent in any province or provinces in which it may be situated and to
perform all other acts necessary for the management of her properties . . ." By that
appointment, it became Evangelista's duty to care for her aunt's person, to attend to her
physical and spiritual needs, to assure her well-being, with right to custody of her person in
preference to relatives and friends. It also became her right and duty to get possession of, and
exercise control over, Caiza's property, both real and personal, it being recognized principle
that the ward has no right to possession or control of his property during his incompetency.
That right to manage the ward's estate carried with it right to take possession thereof and
recover it from anyone who retains it and bring and defend such actions as may be needful for
this purpose. Actually, in bringing the action of desahucio, Evangelista was merely discharging
the duty to attend to "the comfortable and suitable maintenance of the ward" explicitly imposed
on her by Section 4, Rule 96 of the Rules of Court.

106

6. ID.; PROVISIONAL REMEDIES; EJECTMENT CASE; EFFECT OF THE DEATH OF A PARTY;

CASE AT BAR. While it is indeed well-established rule that the relationship of guardian and
ward is necessarily terminated by the death of either the guardian or the ward, the rule affords
no advantage to the Estradas. Amparo Evangelista, as niece of Carmen Caiza, is one of the
latter's only two (2) surviving heirs, the other being Caiza's nephew, Ramon C. Nevado. On
their motion and by resolution of this Court of June 20, 1994, they were in fact substituted as
parties in the appeal at bar in place of the deceased, in accordance with Section 17, Rule 3 of
the Rules of Court. To be sure, an EJECTMENT case survives the death of a party. Caiza's
demise did not extinguish the desahucio suit instituted by her through her guardian. That
action, not being a purely personal one, survived her death; her heirs have taken her place and
now represent her interests in the appeal at bar.
DECISION

NARVASA, C .J p:
On November 20, 1989, being then ninety-four (94) years of age, Carmen Caiza, a spinster, a
retired pharmacist, and former professor of the College of Chemistry and Pharmacy of the
University of the Philippines, was declared incompetent by judgment 1 of the Regional Trial
Court of Quezon City, Branch 107, 2 in a guardianship proceeding instituted by her niece,
Amparo A. Evangelista. 3 She was so adjudged because of her advanced age and physical
infirmities which included cataracts in both eyes and senile dementia. Amparo A. Evangelista
was appointed legal guardian of her person and estate.
Caiza was the owner of a house and lot at No. 61 Tobias St., Quezon City. On September 17,
1990, her guardian Amparo Evangelista commenced a suit in the Metropolitan Trial Court
(MetroTC) of Quezon City (Branch 35) to eject the spouses Pedro and Leonora Estrada from
said premises. 4 The complaint was later amended to identify the incompetent Caiza as
plaintiff, suing through her legal guardian, Amparo Evangelista.
The amended Complaint 5 pertinently alleged that plaintiff Caiza was the absolute owner of
the property in question, covered by TCT No. 27147; that out of kindness, she had allowed the
Estrada Spouses, their children, grandchildren and sons-in-law to temporarily reside in her
house, rent-free; that Caiza already had urgent need of the house on account of her advanced
age and failing health, "so funds could be raised to meet her expenses for support,
maintenance and medical treatment.;" that through her guardian, Caiza had asked the
Estradas verbally and in writing to vacate the house but they had refused to do so; and that "by
the defendants' act of unlawfully depriving plaintiff of the possession of the house in question,
they . . . (were) enriching themselves at the expense of the incompetent, because, while they .
. . (were) saving money by not paying any rent for the house, the incompetent . . . (was) losing
much money as her house could not be rented by others." Also alleged was that the complaint
was "filed within one (1) year from the date of first letter of demand dated February 3, 1990."
In their Answer with Counterclaim, the defendants declared that they had been living in
Caiza's house since the 1960's; that in consideration of their faithful service they had been
considered by Caiza as her own family, and the latter had in fact executed a holographic will
on September 4, 1988 by which she "bequeathed" to the Estradas the house and lot in
question.
Judgment was rendered by the MetroTC on April 13, 1992 in Caiza's favor, 6 the Estradas
being ordered to vacate the premises and pay Caiza P5,000.00 by way of attorney's fees.
107

But on appeal, 7 the decision was reversed by the Quezon City Regional Trial Court, Branch
96. 8 By judgment rendered on October 21, 1992, 9 the RTC held that the "action by which the
issue of defendants' possession should be resolved is accion publiciana, the obtaining factual
and legal situation . . . demanding adjudication by such plenary action for recovery of
possession cognizable in the first instance by the Regional Trial Court." cdphil
Caiza sought to have the Court of Appeals reverse the decision of October 21, 1992, but failed
in that attempt. In a decision 10 promulgated on June 2, 1993, the Appellate Court 11 affirmed
the RTC's judgment in toto. It ruled that (a) the proper remedy for Caiza was indeed an accion
publiciana in the RTC, not an accion interdictal in the MetroTC, since the "defendants have not
been in the subject premises as mere tenants or occupants by tolerance, they have been there
as a sort of adopted family of Carmen Caiza," as evidenced by what purports to be the
holographic will of the plaintiff; and (b) while "said will, unless and until it has passed probate
by the proper court, could not be the basis of defendants' claim to the property, . . . it is
indicative of intent and desire on the part of Carmen Caiza that defendants are to remain and
are to continue in their occupancy and possession, so much so that Caiza's supervening
incompetency can not be said to have vested in her guardian the right or authority to drive the
defendants out." 12

Through her guardian, Caiza came to this Court praying for reversal of the Appellate Court's
judgment. She contends in the main that the latter erred in (a) holding that she should have
pursued an accion publiciana, and not anaccion interdictal; and in (b) giving much weight to "a
xerox copy of an alleged holographic will, which is irrelevant to this case." 13
In the responsive pleading filed by them on this Court's requirement, 14the Estradas insist that
the case against them was really not one of unlawful detainer; they argue that since possession
of the house had not been obtained by them by any "contract, express or implied," as
contemplated by Section 1, Rule 70 of the Rules of Court, their occupancy of the premises could
not be deemed one "terminable upon mere demand (and hence never became unlawful) within
the context of the law." Neither could the suit against them be deemed one of forcible entry,
they add, because they had been occupying the property with the prior consent of the "real
owner," Carmen Caiza, which "occupancy can even ripen into full ownership once the
holographic will of petitioner Carmen Caiza is admitted to probate." They conclude, on those
postulates, that it is beyond the power of Caiza's legal guardian to oust them from the
disputed premises.
Carmen Caiza died on March 19, 1994, 15 and her heirs the aforementioned guardian,
Amparo Evangelista, and Ramon C. Nevado, her niece and nephew, respectively were by this
Court's leave, substituted for her. 16
Three issues have to be resolved: (a) whether or not an ejectment action is the appropriate
judicial remedy for recovery of possession of the property in dispute; (b) assuming desahucio to
be proper, whether or not Evangelista, as Caiza's legal guardian had authority to bring said
action; and (c) assuming an affirmative answer to both questions, whether or not Evangelista
may continue to represent Caiza after the latter's death.
I
It is axiomatic that what determines the nature of an action as well as which court has
jurisdiction over it, are the allegations of the complaint and the character of the relief
108

sought. 17 An inquiry into the averments of the amended complaint in the Court of origin is
thus in order. 18
The amended Complaint alleges:19
"6. That the plaintiff, Carmen Caiza, is the sole and absolute owner of a house and lot at No.
61 Scout Tobias, Quezon City, which property is now the subject of this complaint;
xxx xxx xxx
9. That the defendants, their children, grandchildren and sons-in-law, were allowed to live
temporarily in the house ofplaintiff, Carmen Caiza, for free, out of her kindness;
10. That the plaintiff, through her legal guardian, has duly notified the defendants, for them to
vacate the said house, but the two (2) letters of demand were ignored and the defendants
refused to vacate the same. . .
11. That the plaintiff, represented by her legal guardian, Amparo Evangelista, made another
demand on the defendants for them to vacate the premises, before Barangay Captain Angelina
A. Diaz of Barangay Laging Handa, Quezon City, but after two (2) conferences, the result was
negative and no settlement was reached. A photocopy of the Certification to File Action dated
July 4, 1990; issued by said Barangay Captain is attached, marked Annex "D" and made an
integral part hereof;
12. That the plaintiff has given the defendants more than thirty (30) days to vacate the house,
but they still refused to vacate the premises, and they are up to this time residing in the said
place;
13. That this complaint is filed within one (1) year from the date of first letter of demand dated
February 3, 1990 (Annex "B") sent by the plaintiff to the defendants, by her legal guardian
Amparo Evangelista;
14. By the defendants' act of unlawfully depriving the plaintiff of the possession of the house in
question, they are enriching themselves at the expense of the incompetentplaintiff, because,
while they are saving money by not paying any rent for the house, the plaintiff is losing much
money as her house could not be rented by others;
15. That the plaintiff's health is failing and she needs the house urgently, so that funds could be
raised to meet her expenses for her support, maintenance and medical treatment;
16. That because of defendants' refusal to vacate the house at No. 61 Scout Tobias, Quezon
City, the plaintiff,through her legal guardian, was compelled to go to court for justice, and she
has to spend P10,000.00 as attorney's fees."
Its prayer 20 is quoted below:
"WHEREFORE, in the interest of justice and the rule of law,plaintiff, Carmen Caiza,
represented by her legal guardian.Amparo Evangelista, respectfully prays to this Honorable
Court, to render judgment in favor of plaintiff and against the defendants as follows:
1. To order the defendants, their children, grandchildren, sons-in-law and other persons
claiming under them, to vacate the house and premises at No. 61 Scout Tobias, Quezon City, so
that its possession can be restored to the plaintiff, Carmen Caiza: and
2. To pay attorney's fees in the amount of P10,000.00;
109

3. To pay the costs of the suit."

In essence, the amended complaint states:

1) that the Estradas were occupying Caiza's house by tolerance having been "allowed to live
temporarily . . . (therein) for free, out of . . . (Caiza's) kindness;"
2) that Caiza needed the house "urgently" because her "health . . . (was) failing and she . . .
(needed) funds . . . to meet her expenses for her support, maintenance and medical
treatment;"
3) that through her general guardian, Caiza requested the Estradas several times, orally and in
writing, to give back possession of the house;
4) that the Estradas refused and continue to refuse to give back the house to Caiza, to her
continuing prejudice; and
5) that the action was filed within one (1) year from the last demand to vacate.
Undoubtedly, a cause of action for desahucio has been adequately set out. It is settled that in
an action for unlawful detainer, it suffices to allege that the defendant is unlawfully withholding
possession from the plaintiff is deemed sufficient, 21 and a complaint for unlawful detainer is
sufficient if it alleges that the withholding of possession or the refusal to vacate is unlawful
without necessarily employing the terminology of the law. 22
The Estradas' first proffered defense derives from a literal construction ofSection 1, Rule 70 of
the Rules of Court which inter alia authorizes the institution of an unlawful detainer suit when
"the possession of any land or building is unlawfully withheld after the expiration or termination
of the right to hold possession, by virtue of any contract, express or implied." They contend
that since they did not acquire possession of the property in question "by virtue of any contract,
express or implied" they having been, to repeat, "allowed to live temporarily . . . (therein) for
free, out of . . . (Caiza's) kindness" in no sense could there be an "expiration or termination
of . . . (their) right to hold possession, by virtue of any contract, express or implied." Nor would
an action for forcible entry lie against them, since there is no claim that they had "deprived
(Caiza) of the possession of . . . (her property) by force, intimidation, threat, strategy, or
stealth."
The argument is arrant sophistry. Caiza's act of allowing the Estradas to occupy her house,
rent-free, did not create a permanent and indefeasible right of possession in the latter's favor.
Common sense, and the most rudimentary sense of fairness clearly require that act of liberality
be implicitly, but no less certainly, accompanied by the necessary burden on the Estradas of
returning the house to Caiza upon her demand. More than once has this Court adjudged that a
person who occupies the land of another at the latter's tolerance or permission without any
contract between them is necessarily bound by an implied promise that he will vacate upon
demand, failing which a summary action for ejectment is the proper remedy against
him. 23 The situation is not much different from that of a tenant whose lease expires but who
continues in occupancy by tolerance of the owner, in which case there is deemed to be an
unlawful deprivation or withholding of possession as of the date of the demand to vacate. 24 In
other words, one whose stay is merely tolerated becomes a deforciant illegally occupying the
land or property the moment he is required to leave. 25 Thus, in Asset Privatization Trust
vs. Court of Appeals,26 where a company, having lawfully obtained possession of a plant upon
its undertaking to buy the same, refused to return it after failing to fulfill its promise of payment
despite demands, this Court held that "(a)fter demand and its repudiation, . . . (its) continuing
110

possession . . . became illegal and the complaint for unlawful detainer filed by the . . . (plant's
owner) was its proper remedy."
It may not be amiss to point out in this connection that where there had been more than one
demand to vacate, the one-year period for filing the complaint for unlawful detainer must be
reckoned from the date of the last demand, 27 the reason being that the lessor has the option
to waive his right of action based on previous demands and let the lessee remain meanwhile in
the premises. 28 Now, the complaint filed by Caiza's guardian alleges that the same was "filed
within one (1) year from the date of the first letter of demand dated February 3, 1990."
Although this averment is not in accord with law because there is in fact a second letter of
demand to vacate, dated February 27, 1990, the mistake is inconsequential, since the complaint
was actually filed on September 17, 1990, well within one year from the second (last) written
demand to vacate.

The Estradas' possession of the house stemmed from the owner's express permission. That
permission was subsequently withdrawn by the owner, as was her right; and it is immaterial
that the withdrawal was made through her judicial guardian, the latter being indisputably
clothed with authority to do so. Nor is it of any consequence that Carmen Caiza had executed
a will bequeathing the disputed property to the Estradas; that circumstance did not give them
the right to stay in the premises after demand to vacate on the theory that they might in future
become owners thereof, that right of ownership being at best inchoate, no transfer of
ownership being possible unless and until the will is duly probated.

Thus, at the time of the institution of the action of desahucio, the Estradas had no legal right to
the property, whether as possessors by tolerance or sufferance, or as owners. They could not
claim the right of possession by sufferance, that had been legally ended. They could not assert
any right of possession flowing from their ownership of the house; their status as owners is
dependent on the probate of the holographic will by which the property had allegedly been
bequeathed to them an event which still has to take place; in other words; prior to the
probate of the will, any assertion of possession by them would be premature and inefficacious.
In any case, the only issue that could legitimately be raised under the circumstances was that
involving the Estradas' possession by tolerance, i.e., possession de facto, not de jure. It is
therefore incorrect to postulate that the proper remedy for Caiza is not ejectment but accion
publiciana, a plenary action in the RTC or an action that is one for recovery of the right to
possession de jure.
II
The Estradas insist that the devise of the house to them by Caiza clearly denotes her intention
that they remain in possession thereof, and legally incapacitated her judicial guardian, Amparo
Evangelista, from evicting them therefrom, since their ouster would be inconsistent with the
ward's will.
A will is essentially ambulatory; at any time prior to the testator's death, it may be changed or
revoked; 29 and until admitted to probate, it has no effect whatever and no right can be
claimed thereunder, the law being quite explicit: "No will shall pass either real or personal
property unless it is proved and allowed in accordance with the Rules of Court" (ART.
838, Id.).30 An owner's intention to confer title in the future to persons possessing property by
his tolerance, is not inconsistent with the former's taking back possession in the meantime for
111

any reason deemed sufficient. And that in this case there was sufficient cause for the owner's
resumption of possession is apparent: she needed to generate income from the house on
account of the physical infirmities afflicting her, arising from her extreme age.
Amparo Evangelista was appointed by a competent court the general guardian of both the
person and the estate of her aunt, Carmen Caiza. Her Letters of Guardianship 31 dated
December 19, 1989 clearly installed her as the "guardian over the person and properties of the
incompetent CARMEN CAIZA with full authority to take possession of the property of said
incompetent in any province or provinces in which it may be situated and to perform all other
acts necessary for the management of her properties . . ." 32 By that appointment, it became
Evangelista's duty to care for her aunt's person, to attend to her physical and spiritual needs, to
assure her well-being, with right to custody of her person in preference to relatives and
friends. 33 It also became her right and duty to get possession of, and exercise control over,
Caiza's property, both real and personal, it being recognized principle that the ward has no
right to possession or control of his property during her incompetency. 34 That right to manage
the ward's estate carries with it the right to take possession thereof and recover it from anyone
who retains it, 35 and bring and defend such actions as may be needful for this purpose. 36
Actually, in bringing the action of desahucio, Evangelista was merely discharging the duty to
attend to "the comfortable and suitable maintenance of the ward" explicitly imposed on her by
Section 4, Rule 96 of the Rules of Court, viz.:
"SEC. 4. Estate to be managed frugally, and proceeds applied to maintenance of ward. A
guardian must manage the estate of his ward frugally and without waste, and apply the income
and profits thereof, so far as maybe necessary, to the comfortable and suitable maintenance of
the ward and his family, if there be any; and if such income and profits be insufficient for that
purpose, the guardian may sell or encumber the real estate, upon being authorized by order to
do so, and apply to such of the proceeds as may be necessary to such maintenance."
Finally, it may be pointed out in relation to the Estradas' defenses in the ejectment action, that
as the law now stands, even when, in forcible entry and unlawful detainer cases, the defendant
raises the question of ownership in his pleadings and the question of possession cannot be
resolved without deciding the issue of ownership, the Metropolitan Trial Courts, Municipal Trial
Courts, and Municipal Circuit Trial Courts nevertheless have the undoubted competence to
resolve. "the issue of ownership . . . only to determine the issue of possession." 37
III
As already stated, Carmen Caiza passed away during the pendency of this appeal. The
Estradas thereupon moved to dismiss the petition, arguing that Caiza's death automatically
terminated the guardianship, Amparo Evangelista lost all authority as her judicial guardian, and
ceased to have legal personality to represent her in the present appeal. The motion is without
merit.
While it is indeed well-established rule that the relationship of guardian and ward is necessarily
terminated by the death of either the guardian or the ward, 38 the rule affords no advantage to
the Estradas. Amparo Evangelista, as niece of Carmen Caiza, is one of the latter's only two (2)
surviving heirs, the other being Caiza's nephew, Ramon C. Nevado. On their motion and by
Resolution of this Court 39 of June 20, 1994, they were in fact substituted as parties in the
appeal at bar in place of the deceased, in accordance with Section 17, Rule 3 of the Rules of
Court, viz.: 40
112

"SEC. 17. Death of a party. After a party dies and the claim is not thereby extinguished, the
court shall order, upon proper notice, the legal representative of the deceased to appear and be
substituted for the deceased within a period of thirty (30) days, or within such time as may be
granted. If the legal representative fails to appear within said time, the court may order the
opposing party to procure the appointment of a legal representative of the deceased within a
time to be specified by the court, and the representative shall immediately appear for and on
behalf of the interest of the deceased. The court charges involved in procuring such
appointment, if defrayed by the opposing party, may be recovered as costs. The heirs of the

deceased may be allowed to be substituted for the deceased, without requiring the
appointment of an executor or administrator and the court may appoint guardian ad litem for
the minor heirs.
To be sure, an ejectment case survives the death of a party. Caiza's demise did not extinguish
the desahucio suit instituted by her through her guardian. 41 That action, not being a purely
personal one, survived her death; her heirs have taken her place and now represent her
interests in the appeal at bar.
WHEREFORE, the petition is GRANTED. The Decision of the Court of Appeals promulgated on
June 2, 1993 affirming the Regional Trial Court's judgment and dismissing petitioner's
petition for certiorari is REVERSED and SET ASIDE, and the Decision dated April 13, 1992 of
the Metropolitan Trial Court of Quezon City, Branch 35, in Civil Case No. 3410 is REINSTATED
and AFFIRMED. Costs against private respondents. cda
SO ORDERED.
||| (Ca, G.R. No. 110427, February 24, 1997)

Effect of no probate
[G.R. No. 115925. August 15, 2003.]
SPOUSES RICARDO PASCUAL and CONSOLACION SIOSON, petitioners, vs. COURT OF
APPEALS and REMEDIOS S. EUGENIO-GINO, respondents.

Delos Santos Delos Santos & Delos Santos for petitioners.

Virgilio C. Manguera & Associates for private respondent.
SYNOPSIS

Petitioner Consolacion Sioson and respondent Remedios S. Eugenio-Gino are the niece and
granddaughter, respectively, of the late Canuto Sioson. Canuto and 11 other individuals,
including his sister Catalina Sioson and his brother Victoriano Sioson, were co-owners of a
parcel of land in Tanza, Navotas, Metro Manila known as Lot 2 of Plan Psu 13245, which had an
area of 9,347 square meters and was covered by Original Certificate of Title No. 4207 issued by
the Register of Deeds of Rizal. Catalina, Canuto, and Victoriano each owned an aliquot 10/70
share or 1,335 square meters of Lot 2. On September 26, 1956, Canuto and Consolacion
allegedly executed a Kasulatan ng Bilihang Tuluyan wherein Canuto sold his 10/70 share in Lot
2 in favor of Consolacion. Consolacion immediately took possession of Lot Nos. 2-A and 2-E.
She later declared the land for taxation purposes and paid the corresponding real estate taxes.
On February 4, 1988, respondent Remedios S. Eugenio-Gino filed a complaint against
Consolacion and her spouse Ricardo Pascual in the Regional Trial Court of Malabon, Branch 165,
113

for "Annulment or Cancellation of Transfer Certificate of Title and Damages." Remedios claimed
that she is the owner of Lot Nos. 2-A and 2-E because her aunt Catalina Sioson devised the lots
to her in her last will and testament. Consolation and her spouse sought to dismiss the
complaint on the ground of prescription. Petitioners claimed that the basis of the action is fraud,
and Remedios should have filed the action within four years from the registration of
Consolacion's title on 28 October 1968, and not some 19 years later on February 4, 1988. The
trial court denied the motion to dismiss. Eventually, the trial court rendered judgment
dismissing the case. On appeal, the appellate court reversed the decision of the trial court.
Petitioners filed a petition before the Court questioning the Court of Appeals' ruling.
The Supreme Court ruled in favor of petitioners and granted the petition. According to the
Court, the prescriptive period to recover property obtained by fraud or mistake, giving rise to an
implied trust under Article 1144. Remedios' action is based on an implied trust under Article
1456 since she claims that the inclusion of the additional 1,335 square meters in TCT No.
(232252) 1321 was without basis. In effect, she asserts that Consolacion acquired the
additional 1,335 square meters through mistake or fraud and thus Consolacion should be
considered a trustee of an implied trust for the benefit of the rightful owner of the property.
Clearly, the applicable prescriptive period is ten years under Article 1144 and not four years
under Articles 1389 and 1391. The ten-year prescriptive period begins to run from the date the
adverse party repudiates the implied trust, which repudiation takes place when the adverse
party registers the land. Remedios filed her complaint on February 4, 1988 or more than 19
years after Consolacion registered her title over Lot Nos. 2-A and 2-E on 28 October 1968.
Unquestionably, Remedios filed the complaint late warranting its dismissal.
SYLLABUS
1. CIVIL LAW; PRESCRIPTION OF ACTIONS; PRESENT ACTION IS BARRED BY PRESCRIPTION;
THE PRESCRIPTIVE PERIOD TO RECOVER PROPERTY OBTAINED BY FRAUD OR MISTAKE
GIVING RISE TO AN IMPLIED TRUST UNDER ARTICLE 1456 OF THE CIVIL CODE IS TEN
YEARS. REMEDIOS' action is based on an implied trust under Article 1456 since she claims
that the inclusion of the additional 1,335 square meters in TCT No. (232252) 1321 was without
basis. In effect, REMEDIOS asserts that CONSOLACION acquired the additional 1,335 square
meters through mistake or fraud and thus CONSOLACION should be considered a trustee of an
implied trust for the benefit of the rightful owner of the property. Clearly, the applicable
prescriptive period is ten years under Article 1144 and not four years under Articles 1389 and
1391. It is now well-settled that the prescriptive period to recover property obtained by fraud or
mistake, giving rise to an implied trust under Article 1456 of the Civil Code, is ten years
pursuant to Article 1144. This ten-year prescriptive period begins to run from the date the
adverse party repudiates the implied trust, which repudiation takes place when the adverse
party registers the land. REMEDIOS filed her complaint on 4 February 1988 or more than 19
years after CONSOLACION registered her title over Lot Nos. 2-A and 2-E on 28 October 1968.
Unquestionably, REMEDIOS filed the complaint late thus warranting its dismissal. As the Court
recently declared in Spouses Alfredo v. Spouses Borras, Following Caro, we have consistently
held that an action for reconveyance based on an implied trust prescribes in ten years. We went
further by specifying the reference point of the ten-year prescriptive period as the date of the
registration of the deed or the issuance of the title.
2. ID.; ID.; ID.; ID.; THE COURT'S RULING IN ADDILLE VS. COURT OF APPEALS WHICH IS
ANCHORED ON FRAUD IS NOT APPLICABLE IN CASE AT BAR. In holding that the action filed
by REMEDIOS has not prescribed, the Court of Appeals invoked this Court's ruling in Adille v.
114

Court of Appeals. In Adille, the Court reckoned the ten-year prescriptive period for enforcing
implied trusts not from registration of the adverse title but from actual notice of the adverse
title by the cestui que trust. However, the. Court, in justifying its deviation from the general
rule, explained: [W]hile actions to enforce a constructive trust prescribes (sic) in ten years,
reckoned from the date of the registration of the property, we . . . are not prepared to count
the period from such date in this case. We note the petitioner's sub rosa efforts to get hold of

the property exclusively for himself beginning with his fraudulent misrepresentation in his
unilateral affidavit of extrajudicial settlement that he is "the only heir and child of his mother
Feliza["] with the consequence that he was able to secure title in his name also. Such
commission of specific fraudulent conduct is absent in the present case. Other than asserting
that petitioners are guilty of fraud because they secured title to Lot Nos, 2-A and 2-E with an
area twice bigger than what CANUTO allegedly sold to CONSOLACION, REMEDIOS did not
present any other proof of petitioners' fraudulent conduct akin to Adille. REMEDIOS does not
assail the KASULATAN or the JOINT AFFIDAVIT as fictitious or forged. REMEDIOS even admits
the authenticity of Subdivision Plan Psd 34713 as certified by the Assistant Director of Lands.
Moreover, REMEDIOS has not contested petitioners' claim that CANUTO doubled his share in
Lot 2 by acquiring VICTORIANO's share. Plainly, the increase in the area sold from 1,335 square
meters. to 2,670 square meters is a glaring mistake. There is, however, no proof whatsoever
that this increase in area was the result of fraud. Allegations of fraud in actions to enforce
implied trusts must be proved by clear and convincing evidence. Adille, which is anchored on
fraud, cannot apply to the present case.
3. ID.; ID.; ID.; ID.; ASSUMING THAT THE TEN-YEAR PRESCRIPTIVE PERIOD BEGINS TO RUN
ONLY UPON ACTUAL NOTICE OF TILE ADVERSE TITLE APPLYING THE RULING IN ADILLE VS.
COURT OF APPEALS, STILL RESPONDENT'S RIGHT TO FILE THE SUIT IS BARRED BY
PRESCRIPTION. Even if we apply Adille to this case, prescription still bars REMEDIOS'
complaint. As executrix of CATALINA's LAST WILL, REMEDIOS submitted to the then Court of
First Instance of Caloocan in Special Proceedings Case No. C-208 the inventory of all the
property comprising CATALINA's estate, which included Lot Nos. 2-A and 2-E. In a motion dated
7 November 1977, CONSOLACION sought the exclusion of these lots from the inventory,
invoking her title over them. REMEDIOS was served a copy of the motion on 8 November 1977
against which she filed an opposition. Nevertheless, the trial court overruled REMEDIOS'
objection. In its order of 3 January 1978, the trial court granted CONSOLACION's motion and
ordered the exclusion of Lot Nos. 2-A and 2-E from the estate of CATALINA. REMEDIOS did not
appeal from this ruling. REMEDIOS thus had actual notice of petitioners' adverse title on 8
November 1977. Even if, for the sake of argument, the ten-year prescriptive period begins to
run upon actual notice of the adverse title, still REMEDIOS' right to file this suit has prescribed.
REMEDIOS had until 11 November 1987 within which to file her complaint. When she did so on
4 February 1988, the prescriptive period had already lapsed.
4. REMEDIAL LAW; CIVIL PROCEDURE; PARTIES TO CIVIL ACTION; RESPONDENT IS NOT A
REAL PARTY-IN-INTEREST. Not only does prescription bar REMEDIOS' complaint. REMEDIOS
is also not a real party-in-interest who can file the complaint, as the trial court correctly ruled.
The 1997 Rules of Civil Procedure require that every action must be prosecuted or defended in
the name of the real party-in-interest who is the party who stands to benefit or suffer from the
judgment in the suit. If one who is not a real party-in-interest brings the action, the suit is
dismissible for lack of cause of action. REMEDIOS anchored her claim over Lot Nos. 2-A and 2 E
(or over its one-half portion on the devise of these lots to her under CATALINA's LAST WILL.
However, the trial court found that the probate court did not issue any order admitting the
115

LAST WILL to probate. REMEDIOS does not contest this finding. Indeed, during the trial,
REMEDIOS admitted that Special Proceedings Case No. C-208 is still pending. Article 838 of the
Civil Code states that "[N]o will shall pass either real or personal property unless it is proved
and allowed in accordance with the Rules of Court." This Court has interpreted this provision to
mean, "until admitted to probate, [a will] has no effect whatever and no right can be claimed
thereunder." REMEDIOS anchors her right in filing this suit on her being a devisee of
CATALINA's LAST WILL. However, since the probate court has not admitted CATALINA's LAST
WILL, REMEDIOS has not acquired any right under the LAST WILL. REMEDIOS is thus without
any cause of action either to seek reconveyance of Lot Nos. 2-A and 2-E or to enforce an
implied trust over these lots.

DECISION
CARPIO, J p:
The Case
This is a petition for review of the Decision 1 dated 31 January 1994 of the Court of Appeals
ordering the Register of Deeds of Metro Manila, District III, to place TCT No. (232252) 1321 in
the name of respondent Remedios S. Eugenio-Gino. The Decision ordered the Register of Deeds
to cancel the names of petitioners Ricardo Pascual and Consolacion Sioson ("petitioners") in
TCT No. (232252) 1321. The Decision also directed petitioners to pay respondent moral and
exemplary damages and attorney's fees. HASTCa
The Facts

Petitioner Consolacion Sioson ("CONSOLACION") and respondent Remedios S. Eugenio-Gino

("REMEDIOS") are the niece and granddaughter, respectively, of the late Canuto Sioson
("CANUTO"). CANUTO and 11 other individuals, including his sister Catalina Sioson
("CATALINA") and his brother Victoriano Sioson ("VICTORIANO"), were co-owners of a parcel of
land in Tanza, Navotas, Metro Manila. The property, known as Lot 2 of Plan Psu 13245, had an
area of 9,347 square meters and was covered by Original Certificate of Title No. 4207 issued by
the Register of Deeds of Rizal. CATALINA, CANUTO, and VICTORIANO each owned an aliquot
10/70 share or 1,335 square meters of Lot 2. 2
On 20 November 1951, CANUTO had Lot 2 surveyed and subdivided into eight lots (Lot Nos. 2A to 2-H) through Subdivision Plan Psd 34713 which the Director of Lands approved on 30 May
1952. Lot No. 2-A, with an area of 670 square meters, and Lot No. 2-E, with an area of 2,000
square meters, were placed under CANUTO's name. Three other individuals took the remaining
lots. 3
On 26 September 1956, CANUTO and CONSOLACION executed aKasulatan ng Bilihang
Tuluyan 4 ("KASULATAN"). Under the KASULATAN, CANUTO sold his 10/70 share in Lot 2 in
favor of CONSOLACION for P2,250.00. The KASULATAN, notarized by Notary Public Jose T. de
los Santos of Navotas, provides:

Na ako, CANUTO SIOSON, mamamayang Pilipino, may katampatang gulang, kasal kay
Raymunda San Diego, at naninirahan sa Tanza, Navotas, Rizal, sa bisa at pamamagitan ng
kasulatang ito ay nagpapatunay at nagpapatibay:

116

1. Na ako ang lubos at tunay na may-ari ng 10/70 bahaging hindi hati (10/70 porcion pro-

indiviso) ng isang lagay na lupa (Lote No. 2, Plano Psu-13245), na nasa sa nayon ng Tanza,
Municipio ng Navotas, Provincia ng Rizal, at ang descripcion o pagkakakilanlan ng nasabing lote
ay nakasaad sa Certificado Original, de Titulo No. 4207 ng Oficina ng Registrador de Titulos ng
Rizal, gaya ng sumusunod:
xxx xxx xxx
2. Na dahil at alang-alang sa halagang Dalawang Libo Dalawang Daan at Limampung Piso

(P2,250.00), salaping Pilipino, na sa akin ay ibinayad ni CONSOLACION SIOSON, kasal kay

Ricardo S. Pascual, may sapat na gulang, mamamayang Pilipino, at naninirahan sa Dampalit,
Malabon, Rizal at ang pagkakatanggap ng nasabing halaga ay aking inaamin at pinatutunayan,
ay aking ipinagbili, inilipat at isinalin, sa pamamagitan ng bilihang tuluyan at walang pasubali a
favor [sic] sa nasabing si CONSOLACION SIOSON, sa kanyang tagapagmana at
mapaglilipatan ang lahat ng akin titulo, karapatan at kaparti na binubuo ng 10/70 bahaging
hindi hati (10/70 porcion pro-indiviso) ng loteng descrito or tinutukoy sa itaas nito. (Italics
supplied)
CONSOLACION immediately took possession of Lot Nos. 2-A and 2-E. She later declared the
land for taxation purposes and paid the corresponding real estate taxes. 5
On 23 October 1968, the surviving children of CANUTO, namely, Felicidad and Beatriz, executed
a joint affidavit 6 ("JOINT AFFIDAVIT") affirming theKASULATAN in favor of CONSOLACION.
They also attested that the lots their father had sold to CONSOLACION were Lot Nos. 2-A and
2-E of Subdivision Plan Psd 34713. The JOINT AFFIDAVIT reads:

KAMING sina FELICIDAD SIOSON at BEATRIZ SIOSON, pawang mga Pilipino, kapuwa may
sapat na gulang at naninirahan, ang una sa Tanza, Navotas at ang ikalawa sa Concepcion,
Malabon, lalawigan ng Rizal, sa ilalim ng isang ganap na panunumpa alinsunod sa batas, ay
malayang nagsasalaysay ng mga sumusunod:
Na kami ang mga buhay na anak na naiwan ni CANUTO SIOSONna nagmamay-ari ng 10/70
bahaging hindi hati (10/70 porcion pro-indiviso) ng isang lagay na lupa (Lote No. 2, plano Psu13245), na nasa Nayon ng Tanza, Navotas, Rizal, at ang mga palatandaan nito ay nasasaad sa
Certificado Original de Titulo No. 4207 ng Tanggapan ng Registrador de Titulos ng Rizal;
Na sa lubos naming kaalaman, ay ipinagbili ng aming Ama na si Canuto Sioson ang kaniyang
buong bahagi na 10/70 sa nasabing Lote No. 2, kay CONSOLACION SIOSON, may-bahay ni
Ricardo S. Pascual, na taga Dampalit, Malabon, Rizal, sa halagang P2,250.00, salaping pilipino,
noong ika 16 [sic] ng Septiembre, 1956, sa pamamagitan ng isang KASULATAN NG BILIHANG
TULUYAN na pinagtibay sa harap ng Notario Publico Jose T. de los Santos nang pechang
nabanggit, sa Navotas, Rizal, (Doc. No. 194, Page No. 84; Book No. IV; Series of 1956);
Na ang nasabing lupa na ipinagbili ng aming Ama kay Consolacion Sioson ni Pascual, ay
nakikilala ngayong mga Lote No. 2-A at Lote 2-E ng Plano de Subdivision Psd-34713; na
pinagtibay ng Assistant Director of Lands noong Mayo 30, 1952;
Na aming ngayong pinatitibayan ang pagka-pagbili ng bahagi ng aming Ama kay Consolacion
Sioson ni Pascual ng ngayo'y nakikilalang Lote No. 2-A at Lote No. 2-E ng Plano de Subdivision
Psd-34713. (Italics supplied)
On 28 October 1968, CONSOLACION registered the KASULATAN and the JOINT AFFIDAVIT with
the Office of the Register of Deeds of Rizal ("Register of Deeds"). Based on these documents,
117

the Register of Deeds issued to CONSOLACION Transfer Certificate of Title No. (232252) 1321
covering Lot Nos. 2-A and 2-E of Subdivision Plan Psd 34713 with a total area of 2,670 square
meters.
On 4 February 1988, REMEDIOS filed a complaint against CONSOLACION and her spouse
Ricardo Pascual in the Regional Trial Court of Malabon, Branch 165, for "Annulment or
Cancellation of Transfer Certificate [of Title] and Damages." REMEDIOS claimed that she is the
owner of Lot Nos. 2-A and 2-E because CATALINA devised these lots to her in CATALINA's last
will and testament 7 ("LAST WILL") dated 29 May 1964. REMEDIOS added that CONSOLACION
obtained title to these lots through fraudulent means since the area covered by TCT (232252)
1321 is twice the size of CANUTO's share in Lot 2. REMEDIOS prayed for the cancellation of
CONSOLACION's title, the issuance of another title in her name, and the payment to her of
damages.

Petitioners sought to dismiss the complaint on the ground of prescription. Petitioners claimed
that the basis of the action is fraud, and REMEDIOS should have filed the action within four
years from the registration of CONSOLACION's title on 28 October 1968 and not some 19 years
later on 4 February 1988. REMEDIOS opposed the motion, claiming that she became aware of
CONSOLACION's adverse title only in February 1987. CONSOLACION maintained that she had
timely filed her complaint within the four-year prescriptive on 4 February 1988.
In its order of 28 April 1988, the trial court denied petitioners' motion to dismiss. The trial court
held that the reckoning of the prescriptive period for filing REMEDIOS' complaint is evidentiary
in nature and must await the presentation of the parties' evidence during the trial. During the
pre-trial stage, REMEDIOS clarified that she was claiming only CATALINA's 10/70 share in Lot 2,
or 1,335 square meters, which constitute of the area of Lot Nos. 2-A and 2-E. 8 The trial of
the case then ensued.
The Ruling of the Trial Court
On 26 November 1990, the trial court rendered judgment dismissing the case and ordering
REMEDIOS to pay petitioners P10,000 as attorney's fees and the cost of suit. The trial court
held that the action filed by REMEDIOS is based on fraud, covered by the four-year prescriptive
period. The trial court also held that REMEDIOS knew of petitioners' adverse title on 19
November 1982 when REMEDIOS testified against petitioners in an ejectment suit petitioners
had filed against their tenants in Lot Nos. 2-A and 2-E. Thus, the complaint of REMEDIOS had
already prescribed when she filed it on 4 February 1988.
The trial court further ruled that REMEDIOS has no right of action against petitioners because
CATALINA's LAST WILL from which REMEDIOS claims to derive her title has not been admitted
to probate. Under Article 838 of the Civil Code, no will passes real or personal property unless it
is allowed in probate in accordance with the Rules of Court. The dispositive portion of the trial
court's decision provides:
WHEREFORE, judgment is hereby rendered in favor of the defendants and against plaintiff,
ordering:
1. The dismissal of this case;
2. The plaintiff to pay the defendants the sum of Ten Thousand (P10,000.00) Pesos as and for
attorney's fees; and
3. The plaintiff to pay the costs of suit. 9
118

REMEDIOS appealed to the Court of Appeals.

The Ruling of the Court of Appeals

On 31 January 1994, the Court of Appeals rendered judgment reversing the decision of the trial
court. The appellate court held that what REMEDIOS filed was a suit to enforce an implied trust
allegedly created in her favor when CONSOLACION fraudulently registered her title over Lot
Nos. 2-A and 2-E. Consequently, the prescriptive period for filing the complaint is ten years, not
four. The Court of Appeals counted this ten-year period from 19 November 1982. Thus, when
REMEDIOS filed her complaint on 4 February 1988, the ten-year prescriptive period had not yet
expired.
The appellate court held that CATALINA's unprobated LAST WILL does not preclude REMEDIOS
from seeking reconveyance of Lot Nos. 2-A and 2-E as the LAST WILL may subsequently be
admitted to probate. The dispositive portion of the appellate court's ruling provides:
WHEREFORE, the decision appealed from is REVERSED and SET ASIDE. The Registry of Deeds
of Rizal or Metro Manila, District III, is ordered to place Transfer Certificate of Title No.
(232252) 1321 under the name of Remedios S. Eugenio-Gino as executor of the will of Catalina
Sioson and cancel the names of the Spouses Ricardo Pascual and Consolacion Sioson inscribed
over said title as owners of the covered lot. Defendants-appellees spouses Ricardo Pascual and
Consolacion Sioson are ordered to pay plaintiff-appellant Remedios S. Eugenio-Gino moral
damages in the amount of P50,000.00, exemplary damages of P20,000[.00] and attorney's fees
of P20,000.00 and P500.00 per appearance. 10

Petitioners sought reconsideration of the ruling. However, the Court of Appeals denied their
motion in its order dated 15 June 1994.
Hence, this petition.
The Issues
Petitioners allege the following assignment of errors:
I. THE COURT OF APPEALS ERRED IN HOLDING THAT PRIVATE RESPONDENT'S CAUSE OF
ACTION IS NOT BARRED BY PRESCRIPTION WHICH FINDING IS MANIFESTLY CONTRARY TO
LAW AND THE APPLICABLE DECISIONS OF THIS HONORABLE COURT.
II. THE COURT OF APPEALS ERRED IN NOT HOLDING THAT PRIVATE RESPONDENT DOES NOT
HAVE ANY TITLE AND HAS UTTERLY FAILED TO PROVE ANY TITLE TO THE LOTS INVOLVED
IN THIS CASE, AND IN ORDERING THE CANCELLATION OF THE CERTIFICATE OF TITLE OF
PETITIONERS.
III. THE COURT OF APPEALS ACTED WITH GRAVE ABUSE OF DISCRETION AMOUNTING TO
LACK OF JURISDICTION AND IN GROSS VIOLATION OF THE RULES OF COURT IN ORDERING
THE ENTIRE PROPERTY COVERED BY TRANSFER CERTIFICATE OF TITLE NO. (232252) 1321
TO BE PLACED IN THE NAME OF PRIVATE RESPONDENT, BECAUSE THE CLAIM OF PRIVATE
RESPONDENT IS LIMITED ONLY TO ONE-HALF () PORTION OF THE PROPERTY, AND THE
OTHER HALF THEREOF UNQUESTIONABLY BELONGS TO PETITIONERS.
IV. THE COURT OF APPEALS ERRED IN HOLDING THAT PETITIONERS ACTED FRAUDULENTLY
AND IN BAD FAITH IN SECURING THEIR CERTIFICATE OF TITLE TO THE PROPERTY
119

INVOLVED IN THIS CASE, AND IN ORDERING PETITIONERS TO PAY PRIVATE RESPONDENTS

MORAL DAMAGES, EXEMPLARY DAMAGES AND ATTORNEY'S FEES. 11
The pivotal questions are: (1) whether prescription bars the action filed by REMEDIOS, and (2)
whether REMEDIOS is a real party-in-interest.
The Ruling of the Court
The petition has merit.

The Action is Barred by Prescription

The trial court held that the action filed by REMEDIOS is one based on fraud. REMEDIOS' action
seeks to recover real property that petitioners allegedly acquired through fraud. Consequently,
the trial court held that the action prescribes in four years counted from REMEDIOS' actual
discovery of petitioners' adverse title. The trial court concluded that REMEDIOS belatedly filed
her suit on 4 February 1988 because she actually knew of petitioners' adverse title since 19
November 1982.
On the other hand, the Court of Appeals held that what REMEDIOS filed was a suit to enforce
an implied trust. REMEDIOS had ten years counted from actual notice of the breach of trust,
that is, the assertion of adverse title, within which to bring her action. The appellate court held
that REMEDIOS seasonably filed her complaint on 4 February 1988 because she allegedly
discovered petitioners' adverse title only on 19 November 1982.
What REMEDIOS filed was an action to enforce an implied trust but the same is already barred
by prescription.

Prescriptive Period is 10 Years Counted

From Registration of Adverse Title
The four-year prescriptive period relied upon by the trial court applies only if the fraud does not
give rise to an implied trust, and the action is to annul a voidable contract under Article
1390 12 of the Civil Code. In such a case, the four-year prescriptive period under Article
1391 13 begins to run from the time of discovery of the mistake, violence, intimidation, undue
influence or fraud.
In the present case, REMEDIOS does not seek to annul the KASULATAN. REMEDIOS does not
assail the KASULATAN as a voidable contract. In fact, REMEDIOS admits the validity of the sale
of 1,335 square meters of land under the KASULATAN. However, REMEDIOS alleges that the
excess area of 1,335 meters is not part of the sale under the KASULATAN. REMEDIOS seeks the
removal of this excess area from TCT No. (232252) 1321 that was issued to CONSOLACION.
Consequently, REMEDIOS' action is for "Annulment or Cancellation of Transfer Certificate [of
Title] and Damages."14
REMEDIOS' action is based on an implied trust under Article 1456 since she claims that the
inclusion of the additional 1,335 square meters in TCT No. (232252) 1321 was without basis. In
effect, REMEDIOS asserts that CONSOLACION acquired the additional 1,335 square meters
through mistake or fraud and thus CONSOLACION should be considered a trustee of an implied
trust for the benefit of the rightful owner of the property. Clearly, the applicable prescriptive
period is ten years under Article 1144 and not four years under Articles 1389 and 1391.
It is now well-settled that the prescriptive period to recover property obtained by fraud or
mistake, giving rise to an implied trust under Article 1456 15 of the Civil Code, is ten years
120

pursuant to Article 1144. 16 This ten-year prescriptive period begins to run from the date the
adverse party repudiates the implied trust, which repudiation takes place when the adverse
party registers the land. 17
REMEDIOS filed her complaint on 4 February 1988 or more than 19 years after CONSOLACION
registered her title over Lot Nos. 2-A and 2-E on 28 October 1968. Unquestionably, REMEDIOS
filed the complaint late thus warranting its dismissal. As the Court recently declared in Spouses
Alfredo v. Spouses Borras, 18
Following Caro, 19 we have consistently held that an action for reconveyance based on an
implied trust prescribes in ten years. We went further by specifying the reference point of the
ten-year prescriptive period as the date of the registration of the deed or the issuance of the
title.

The Court of Appeals' Reckoning of Prescriptive Period

from Actual Notice of Adverse Title Not Justified
In holding that the action filed by REMEDIOS has not prescribed, the Court of Appeals invoked
this Court's ruling in Adille v. Court of Appeals. 20 InAdille, the Court reckoned the ten-year
prescriptive period for enforcing implied trusts not from registration of the adverse title but
from actual notice of the adverse title by the cestui que trust. However, the Court, in justifying
its deviation from the general rule, explained:
[W]hile actions to enforce a constructive trust prescribes (sic) in ten years, reckoned from the
date of the registration of the property, we . . . are not prepared to count the period from such
date in this case. We note the petitioner's sub rosa efforts to get hold of the property

exclusively for himself beginning with his fraudulent misrepresentation in his unilateral affidavit
of extrajudicial settlement that he is "the only heir and child of his mother Feliza["] with the
consequence that he was able to secure title in his name also. (Italics supplied)
Such commission of specific fraudulent conduct is absent in the present case. Other than
asserting that petitioners are guilty of fraud because they secured title to Lot Nos. 2-A and 2-E
with an area twice bigger than what CANUTO allegedly sold to CONSOLACION, REMEDIOS did
not present any other proof of petitioners' fraudulent conduct akin to Adille.
CONSOLACION obtained title to Lot Nos. 2-A and 2-E through theKASULATAN executed by
CANUTO and the JOINT AFFIDAVIT executed by his surviving children, one of whom, Felicidad,
is the mother of REMEDIOS. The KASULATAN referred to the sale of CANUTO's 10/70 share in
Lot 2 without specifying the area of the lot sold. The JOINT AFFIDAVIT referred to the "Plano
de Subdivision Psd-34713" without also specifying the area of the lot sold. However, Subdivision
Plan Psd 34713, as certified by the Assistant Director of Lands on 30 May 1952, showed an area
of 2,670 square meters in the name of CANUTO. Based on these documents, the Register of
Deeds issued TCT No. (232252) 1321 to CONSOLACION covering an area of 2,670 square
meters.
REMEDIOS does not assail the KASULATAN or the JOINT AFFIDAVIT as fictitious or forged.
REMEDIOS even admits the authenticity of Subdivision Plan Psd 34713 as certified by the
Assistant Director of Lands. 21Moreover, REMEDIOS has not contested petitioners' claim that
CANUTO doubled his share in Lot 2 by acquiring VICTORIANO's share. 22
Plainly, the increase in the area sold from 1,335 square meters to 2,670 square meters is a
glaring mistake. There is, however, no proof whatsoever that this increase in area was the
result of fraud. Allegations of fraud in actions to enforce implied trusts must be proved by clear
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and convincing evidence. 23 Adille, which is anchored on fraud, 24 cannot apply to the
present case.
At any rate, even if we apply Adille to this case, prescription still bars REMEDIOS' complaint. As
executrix of CATALINA's LAST WILL, REMEDIOS submitted to the then Court of First Instance of
Caloocan in Special Proceedings Case No. C-208 the inventory of all the property comprising
CATALINA's estate, which included Lot Nos. 2-A and 2-E. In a motion dated 7 November 1977,
CONSOLACION sought the exclusion of these lots from the inventory, invoking her title over
them. REMEDIOS was served a copy of the motion on 8 November 1977 against which she filed
an opposition. Nevertheless, the trial court overruled REMEDIOS' objection. In its order of 3
January 1978, the trial court granted CONSOLACION's motion and ordered the exclusion of Lot
Nos. 2-A and 2-E from the estate of CATALINA. REMEDIOS did not appeal from this ruling.
REMEDIOS thus had actual notice of petitioners' adverse title on 8 November 1977. Even if, for
the sake of argument, the ten-year prescriptive period begins to run upon actual notice of the
adverse title, still REMEDIOS' right to file this suit has prescribed. REMEDIOS had until 11
November 1987 within which to file her complaint. When she did so on 4 February 1988, the
prescriptive period had already lapsed.

Respondent is Not a Real Party-in-Interest

Not only does prescription bar REMEDIOS' complaint. REMEDIOS is also not a real party-ininterest who can file the complaint, as the trial court correctly ruled.
The 1997 Rules of Civil Procedure require that every action must be prosecuted or defended in
the name of the real party-in-interest who is the party who stands to benefit or suffer from the
judgment in the suit. 25If one who is not a real party-in-interest brings the action, the suit is
dismissible for lack of cause of action. 26

REMEDIOS anchored her claim over Lot Nos. 2-A and 2-E (or over its one-half portion) on the
devise of these lots to her under CATALINA's LAST WILL. However, the trial court found that
the probate court did not issue any order admitting the LAST WILL to probate. REMEDIOS does
not contest this finding. Indeed, during the trial, REMEDIOS admitted that Special Proceedings
Case No. C-208 is still pending. 27
Article 838 of the Civil Code states that "[N]o will shall pass either real or personal property
unless it is proved and allowed in accordance with the Rules of Court." This Court has
interpreted this provision to mean, "until admitted to probate, [a will] has no effect whatever
and no right can be claimed thereunder." 28 REMEDIOS anchors her right in filing this suit on
her being a devisee of CATALINA's LAST WILL. However, since the probate court has not
admitted CATALINA's LAST WILL, REMEDIOS has not acquired any right under the LAST WILL.
REMEDIOS is thus without any cause of action either to seek reconveyance of Lot Nos. 2-A and
2-E or to enforce an implied trust over these lots.
The appellate court tried to go around this deficiency by ordering the reconveyance of Lot Nos.
2-A and 2-E to REMEDIOS in her capacity as executrix of CATALINA's LAST WILL. This is
inappropriate because REMEDIOS sued petitioners not in such capacity but as the alleged
owner of the disputed lots. Thus, REMEDIOS alleged in her complaint:
3. The plaintiff is a niece and compulsory heir of the late CATALINA SIOSON who died single
and without any child of her own and who, during her lifetime, was the owner of those two (2)
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parcels of land located at Tanza, Navotas, Rizal (now Metro Manila), formerly covered by
Original Certificate of Title No. 4207 of the Registry of Deeds for the Province of Rizal, . . .
4. The plaintiff, aside from being the compulsory heir of the deceased CATALINA SIOSON, has

sole and exclusive claim of ownership over the above-mentioned two (2) parcels of land by
virtue of a will or "Huling Habilin at Pagpapasiya" executed by Catalina Sioson on May 19,
1964 before Notary Public Efren Y. Angeles at Navotas, Rizal, in which document the deceased
Catalina Sioson specifically and exclusively bequeathed to the plaintiff the above-mentioned
Lots 2-A and 2-E of Psd-34713 approved by the Bureau of Lands on May 30, 1952. Copy of the
"Huling Habilin at Pagpapasiya" consisting of four (4) pages is hereto attached and forms an
integral part hereof as Annex "A";
5. Sometime on or about February, 1987, plaintiff discovered that the above-mentioned Lots 2A and 2-E of subdivision plan Psd-34713 are now registered or titled in the name of the
defendants under Transfer Certificate of Title No. (232252) 1321 of the Registry of Deeds of
Rizal, now Metro-Manila District III. Copy of the title is hereto attached and forms an integral
part hereof as Annex "B";
6. Upon further inquiry and investigation, plaintiff discovered that the defendants were able to
obtain title in their name of the said parcels of land by virtue of a "Kasulatan ng Bilihang
Tuluyan" allegedly executed by Canuto Sioson on September 26, 1956 before Notary Public
Jose [T.] de los Santos of Navotas, Metro-Manila. Copy of the said document is hereto attached
and forms an integral part hereof as Annex "C";
7. The plaintiff also discovered that although . . . the original sale did not specify the parcels of
land sold by Canuto Sioson, the defendants submitted an alleged Affidavit executed by Felicidad
Sioson and Beatriz Sioson identifying the lots sold by Canuto Sioson to the defendants as Lots
2-A and 2-E of subdivision plan Psd-34713. Copy of the Affidavit dated October 3, 1968 on the
basis of which the present Transfer Certificate of Title No. (232252) 1321 was issued to the
defendants is hereto attached and forms an integral part hereof as Annex "D";
8. The defendants are clearly guilty of fraud in presenting the aforementioned Affidavit (Annex
"D") to the Register of Deeds as the basis of their claim to Lots 2-A and 2-E in view of the fact
that the parcels sold to them by Canuto Sioson, assuming there was such a sale, were different
parcels of land, Lots 2-A and 2-E being the properties of the late Catalina Sioson who
bequeathed the same to the plaintiff.
xxx xxx xxx
12. Because of the defendants' fraudulent actuations on this matter, plaintiff suffered and

continious [sic] to suffer moral damages arising from anxiety, shock and wounded feelings.
Defendants should also be assessed exemplary damages by way of a lesson to deter them from
again committing the fraudulent acts, or acts of similar nature, by virtue of which they were
able to obtain title to the parcels of land involved in this case . . . 29 (Italics supplied)
Indeed, all throughout the proceedings below and even in her Comment to this petition,
REMEDIOS continued to pursue her claim as the alleged owner of one-half of the disputed lots.

Other Matters Raised in the Petition

The Court deems it unnecessary to pass upon the other errors petitioners assigned concerning
the award of damages and attorneys fees to REMEDIOS. Such award assumes that REMEDIOS
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is a real party-in-interest and that she timely filed her complaint. As earlier shown, this is not
the case.
WHEREFORE, we GRANT the petition. The Decision of the Court of Appeals dated 31 January
1994 and its Resolution dated 15 June 1994 are SET ASIDE. The complaint filed by respondent
Remedios Eugenio-Gino, dated 2 February 1988 is DISMISSED.
SO ORDERED.
||| (Spouses Pascual v. Court of Appeals, G.R. No. 115925, August 15, 2003)

Validity of a will
[G.R. No. L-56340. June 24, 1983.]
SPOUSES ALVARO PASTOR, JR. and MA. ELENA ACHAVAL DE
PASTOR, petitioners, vs. THE COURT OF APPEALS, JUAN Y. REYES, JUDGE OF BRANCH
I, COURT OF APPEALS, JUAN Y. REYES, JUDGE OF BRANCH I, COURT OF FIRST
INSTANCE OF CEBU and LEWELLYN BARLITO QUEMADA, respondents.

Pelaez, Pelaez, & Pelaez Law Office for petitioners.

Ceniza, Rama & Associates for private respondents.
SYLLABUS
1.REMEDIAL LAW; SPECIAL PROCEEDINGS; PROBATE OF WILL; ISSUE CONFINED TO THE
EXTRINSIC VALIDITY OF WILLS. In a special proceeding for the probate of a will, the issue
by and large is restricted to the extrinsic validity of a will, i.e., whether the testator, being of
sound mind, freely executed the will in accordance with the formalities prescribed by law (Rules
of Court, Rule 75, Section 1; Rule 76, Section 9).
2.ID.; ID.; ID.; ID.; QUESTION OF OWNERSHIP NOT RESOLVED WITH FINALITY. As a rule,
the question of ownership is an extraneous matter which the Probate Court can not resolve with
finality. Thus, for the purpose of determining whether a certain property should be included in
the inventory of estate properties, the Probate Court may pass upon the title thereto, but such
determination is provisional, not conclusive, and is subject to the final decision in a separate
action to resolve title (Valero Vda. de Rodriguez vs. Court of Appeals. 91 SCRA 540).
3.ID.; CIVIL ACTION; JUDGMENT; EXECUTION MUST CONFORM WITH THE DISPOSITIVE PART
OF THE DECISION. The rule is that execution of judgment must conform to that decreed in
the dispositive part of the decision (Philippine-American Insurance Co. vs. Honorable Flores, 97
SCRA 811). However, in case of ambiguity or uncertainty, the body of the decision may be
scanned for guidance in construing the judgment (Heirs of Presto vs. Galang, 78 SCRA 534;
Fabular vs. Court of Appeals. 119 SCRA 329, Robles vs. Timario, 107 Phil. 809).
4.ID.; SPECIAL CIVIL ACTIONS; CERTIORARI; REMEDY PROPER IN CASE OF GRAVE ABUSE OF
DISCRETION IN THE ISSUANCE OF THE ORDER OF EXECUTION. Private respondent
challenges the propriety of certiorari as a means to assail the validity of the disputed Order of
Execution. He contends that the error, if any, is one of judgment. not jurisdiction. and properly
correctible only on appeal. not certiorari. Under the circumstances of the case at bar, the
challenge must be rejected. It is within a court's competence to order the execution of a final
judgment; but to order the execution of a final order (which is not even meant to be executed)
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by reading into it terms that are not there and in utter disregard of existing rules and law, is
manifest grave abuse of discretion tantamount to lack of jurisdiction. Consequently, the rule
that certiorari may not be invoked to defeat the right of a prevailing party to the execution of a
valid and final judgment. is inapplicable. For when an order of execution is issued with grave
abuse of discretion or is at variance with the judgment sought to be enforced (PVTA vs.
Honorable Gonzales, 92 SCRA 172), certiorari will lie to abate the order of execution.
5.CIVIL LAW; WILLS AND SUCCESSION; LEGACY; ORDERED PAYMENT VIOLATIVE OF THE
RULE REQUIRING PRIOR LIQUIDATION OF THE ESTATE. The ordered payment of legacy
would be violative of the rule requiring prior liquidation of the estate of the deceased, i.e., the
determination of the assets of the estate and payment of all debts and expenses, before
apportionment and distribution of the residue among the heirs and legatees (Bernardo vs. Court
of Appeals, 7 SCRA 367).

6.TAXATION; NATIONAL INTERNAL REVENUE CODE; ESTATE TAX; PAYMENT THEREOF

REQUIRED BEFORE DELIVERY OF INHERITED PROPERTY. Neither has the estate tax been
paid on the estate of Pastor, Sr. Payment therefore of the legacy to Quemada would collide with
the provision of the National Internal Revenue Code requiring payment of the estate tax before
delivery to any beneficiary of his distributive share of the estate (Section 107 [c]).
7.CIVIL LAW; WILLS AND SUCCESSION; LEGACY, NOT A DEBT. A legacy is not a debt of the
estate; indeed, legatees are among those against whom execution is authorized to be issued.
DECISION
PLANA, J p:
I.FACTS:
This is a case of hereditary succession.
Alvaro Pastor, Sr. (PASTOR, SR.), a Spanish subject, died in Cebu City on June 5, 1966,
survived by his Spanish wife Sofia Bossio (who also died on October 21, 1966), their two
legitimate children Alvaro Pastor, Jr. (PASTOR, JR.) and Sofia Pastor de Midgely (SOFIA), and
an illegitimate child, not natural, by the name of Lewellyn Barlito Quemada (QUEMADA).
PASTOR, JR. is a Philippine citizen, having been naturalized in 1936. SOFIA is a Spanish subject.
QUEMADA is a Filipino by his mother's citizenship.
On November 13, 1970, QUEMADA filed a petition for the probate and allowance of an alleged
holographic will of PASTOR, SR. with the Court of First Instance of Cebu, Branch I (PROBATE
COURT), docketed as SP No. 3128-R. The will contained only one testamentary disposition: a
legacy in favor of QUEMADA consisting of 30% of PASTOR, SR.'s 42% share in the operation by
Atlas Consolidated Mining and Development Corporation (ATLAS) of some mining claims in PiaBarot, Cebu.
On November 21, 1970, the PROBATE COURT, upon motion of QUEMADA and after an ex
parte hearing, appointed him special administrator of the entire estate of PASTOR, SR., whether
or not covered or affected by the holographic will. He assumed office as such on December 4,
1970 after filing a bond of P5,000.00.
On December 7, 1970, QUEMADA as special administrator, instituted against PASTOR, JR. and
his wife an action for reconveyance of alleged properties of the estate, which included the
properties subject of the legacy and which were in the names of the spouses PASTOR, JR. and
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his wife, Maria Elena Achaval de Pastor, who claimed to be the owners thereof in their own
rights, and not by inheritance. The action, docketed as Civil Case No. 274-R, was filed with the
Court of First Instance of Cebu, Branch IX. LLjur
On February 2, 1971, PASTOR, JR. and his sister SOFIA filed their opposition to the petition for
probate and the order appointing QUEMADA as special administrator.
On December 5, 1972, the PROBATE COURT issued an order allowing the will to probate.
Appealed to the Court of Appeals in CA-G.R. No. 52961-R, the order was affirmed in a decision
dated May 9, 1977. On petition for review, the Supreme Court in G.R. No. L-46645 dismissed
the petition in a minute resolution dated November 1, 1977 and remanded the same to the
PROBATE COURT after denying reconsideration on January 11, 1978.
For two years after remand of the case to the PROBATE COURT, QUEMADA filed pleading after
pleading asking for payment of his legacy and seizure of the properties subject of said legacy.
PASTOR, JR. and SOFIA opposed these pleadings on the ground of pendency of the
reconveyance suit with another branch of the Cebu Court of First Instance. All pleadings
remained unacted upon by the PROBATE COURT.
On March 5, 1980, the PROBATE COURT set the hearing on the intrinsic validity of the will for
March 25, 1980, but upon objection of PASTOR, JR. and SOFIA on the same ground of
pendency of the reconveyance suit, no hearing was held on March 25. Instead, the PROBATE
COURT required the parties to submit their respective position papers as to how much
inheritance QUEMADA was entitled to receive under the will. Pursuant thereto, PASTOR, JR. and
SOFIA submitted their Memorandum of authorities dated April 10, which in effect showed that
determination of how much QUEMADA should receive was still premature. QUEMADA submitted
his Position paper dated April 20, 1980. ATLAS, upon order of the Court, submitted a sworn
statement of royalties paid to the Pastor Group of claimants from June 1966 (when Pastor, Sr.
died) to February 1980. The statement revealed that of the mining claims being operated by
ATLAS, 60% pertained to the Pastor Group distributed as follows:
1.A. Pastor, Jr.40.5%
2.E. Pelaez, Sr.15.0%
3.B. Quemada4.5%
On August 20, 1980, while the reconveyance suit was still being litigated in Branch IX of the
Court of First Instance of Cebu, the PROBATE COURT issued the now assailed Order of
Execution and Garnishment, resolving the question of ownership of the royalties payable by
ATLAS and ruling in effect that the legacy to QUEMADA was not inofficious. [There was
absolutely no statement or claim in the Order that the Probate Order of December 5, 1972 had
previously resolved the issue of ownership of the mining rights of royalties thereon, nor the
intrinsic validity of the holographic will.]
The order of August 20, 1980 found that as per the holographic will and a written
acknowledgment of PASTOR, JR. dated June 17, 1962, of the above 60% interest in the mining
claims belonging to the Pastor Group, 42% belonged to PASTOR, SR. and only 33% belonged
to PASTOR, JR. The remaining 25% belonged to E. Pelaez, also of the Pastor Group. The
PROBATE COURT thus directed ATLAS to remit directly to QUEMADA the 42% royalties due
decedent's estate, of which QUEMADA was authorized to retain 75% for himself as legatee and
to deposit 25% with a reputable banking institution for payment of the estate taxes and other
obligations of the estate. The 33% share of PASTOR, JR. and/or his assignees was ordered
126

garnished to answer for the accumulated legacy of QUEMADA from the time of PASTOR, SR.'s
death, which amounted to over two million pesos. cdphil
The order being "immediately executory", QUEMADA succeeded in obtaining a Writ of Execution
and Garnishment on September 4, 1980, and in serving the same on ATLAS on the same day.
Notified of the Order on September 6, 1980, the oppositors sought reconsideration thereof on
the same date primarily on the ground that the PROBATE COURT gravely abused its discretion
when it resolved the question of ownership of the royalties and ordered the payment of
QUEMADA's legacy after prematurely passing upon the intrinsic validity of the will. In the
meantime, the PROBATE COURT ordered suspension of payment of all royalties due PASTOR,
JR. and/or his assignees until after resolution of oppositors' motion for reconsideration.

Before the Motion for Reconsideration could be resolved, however, PASTOR, JR., this time
joined by his wife Ma. ELENA ACHAVAL DE PASTOR, filed with the Court of Appeals a Petition
for Certiorari and Prohibition with a prayer for writ of preliminary injunction (CA-G.R. No. SP11373-R). They assailed the Order dated August 20, 1980 and the writ of execution and
garnishment issued pursuant thereto. The petition was denied on November 18, 1980 on the
grounds (1) that its filing was premature because the Motion for Reconsideration of the
questioned Order was still pending determination by the PROBATE COURT; and (2) that
although "the rule that a motion for reconsideration is prerequisite for an action for certiorari is
never an absolute rule," the Order assailed is "legally valid."
On December 9, 1980, PASTOR, JR. and his wife moved for reconsideration of the Court of
Appeal's decision of November 18, 1980, calling the attention of the appellate court to another
order of the Probate Court dated November 11, 1980 (i.e., while their petition for certiorari was
pending decision in the appellate court), by which the oppositors' motion for reconsideration of
the Probate Court's Order of August 20, 1980 was denied. [The November 11 Order declared
that the questions of intrinsic validity of the will and of ownership over the mining claims (not
the royalties alone) had been finally adjudicated by the final and executory Order of December
5, 1972, as affirmed by the Court of Appeals and the Supreme Court, thereby rendering moot
and academic the suit for reconveyance then pending in the Court of First Instance of Cebu,
Branch IX. It clarified that only the 33% share of PASTOR, JR. in the royalties (less than 7.5%
share which he had assigned to QUEMADA before PASTOR, SR. died) was to be garnished and
that as regards PASTOR, SR.'s 42% share, what was ordered was just the transfer of its
possession to the custody of the PROBATE COURT through the special administrator. Further,
the Order granted QUEMADA 6% interest on his unpaid legacy from August 1980 until fully
paid.] Nonetheless, the Court of Appeals denied reconsideration.prcd
Hence, this Petition for Review by certiorari with prayer for a writ of preliminary injunction,
assailing the decision of the Court of Appeals dated November 18, 1980 as well as the orders of
the Probate Court dated August 20, 1980, November 11, 1980 and December 17, 1980, filed by
petitioners on March 26, 1981, followed by a Supplemental Petition with Urgent Prayer for
Restraining Order.
In April 1981, the Court (First Division) issued a writ of preliminary injunction, the lifting of
which was denied in the Resolution of the same Division dated October 18, 1982, although the
bond of petitioners was increased from P50.000.00 to P100,000.00.

127

Between December 21, 1981 and October 12, 1982, private respondent filed seven successive
motions for early resolution. Five of these motions expressly prayed for the resolution of the
question as to whether or not the petition should be given due course.
On October 18, 1982, the Court (First Division) adopted a resolution stating that "the petition in
fact and in effect was given due course when this case was heard on the merits on September
7, (should be October 21, 1981) and concise memoranda in amplification of their oral
arguments on the merits of the case were filed by the parties pursuant to the resolution of
October 21, 1981 . . ." and denied in a resolution dated December 13, 1982, private
respondent's "Omnibus motion to set aside resolution dated October 18, 1982 and to submit
the matter of due course to the present membership of the Division; and to reassign the case to
another ponente."
Upon Motion for Reconsideration of the October 18, 1982 and December 13, 1982 Resolutions,
the Court en banc resolved to CONFIRM the questioned resolutions insofar as they resolved that
the petition in fact and in effect had been given due course.
II.ISSUES:
Assailed by the petitioners in these proceedings is the validity of the Order of execution and
garnishment dated August 20, 1980 as well as the Orders subsequently issued allegedly to
implement the Probate Order of December 5, 1972, to wit: the Order of November 11, 1980
declaring that the Probate Order of 1972 indeed resolved the issues of ownership and intrinsic
validity of the will, and reiterating the Order of Execution dated August 20, 1980; and the Order
of December 17, 1980 reducing to P2,251,516.74 the amount payable to QUEMADA
representing the royalties he should have received from the death of PASTOR, SR. in 1966 up
to February 1980. LLjur
The Probate Order itself, insofar as it merely allowed the holographic will in probate, is not
questioned. But petitioners denounce the Probate Court for having acted beyond its jurisdiction
or with grave abuse of discretion when it issued the assailed Orders. Their argument runs this
way: Before the provisions of the holographic will can be implemented, the questions of
ownership of the mining properties and the intrinsic validity of the holographic will must first be
resolved with finality. Now, contrary to the position taken by the Probate Court in 1980 i.e.,
almost eight years after the probate of the will in 1972 the Probate Order did not resolve the
two said issues. Therefore, the Probate Order could not have resolved and actually did not
decide QUEMADA's entitlement to the legacy. This being so, the Orders for the payment of the
legacy in alleged implementation of the Probate Order of 1972 are unwarranted for lack of
basis.

Closely related to the foregoing is the issue raised by QUEMADA: The Probate Order of 1972
having become final and executory, how can its implementation (payment of legacy) be
restrained? Of course, the question assumes that QUEMADA's entitlement to the legacy was
finally adjudged in the Probate Order.
On the merits, therefore, the basic issue is whether the Probate Order of December 5, 1972
resolved with finality the questions of ownership and intrinsic validity. A negative finding will
necessarily render moot and academic the other issues raised by the parties, such as the
jurisdiction of the Probate Court to conclusively resolve title to property, and the
constitutionality and repercussions of a ruling that the mining properties in dispute, although in
the name of PASTOR, JR. and his wife, really belonged to the decedent despite the latter's
constitutional disqualification as an alien.
128

On the procedural aspect, placed in issue is the propriety of certiorari as a means to assail the
validity of the order of execution and the implementing writ.
III.DISCUSSION:
1.Issue of Ownership
(a)In a special proceeding for the probate of a will, the issue by and large is restricted to
the extrinsic validity of the will, i.e., whether the testator, being of sound mind, freely executed
the will in accordance with the formalities prescribed by law. (Rules of Court, Rule 75, Section
1; Rule 76, Section 9.) As a rule, the question of ownership is an extraneous matter which the
Probate Court cannot resolve with finality. Thus, for the purpose of determining whether a
certain property should or should not be included in the inventory of estate properties, the
Probate Court may pass upon the title thereto, but such determination is provisional, not
conclusive, and is subject to the final decision in a separate action to resolve title. [3 Moran,
Comments on the Rules of Court (1980 ed.), p. 458; Valero Vda. de Rodriguez vs. Court of
Appeals, 91 SCRA 540.] LLjur
(b)The rule is that execution of a judgment must conform to that decreed in the dispositive
part of the decision. (Philippine-American Insurance Co. vs. Honorable Flores, 97 SCRA 811.)
However, in case of ambiguity or uncertainty, the body of the decision may be scanned for
guidance in construing the judgment. (Heirs of Presto vs. Galang, 78 SCRA 534; Fabular vs.
Court of Appeals, 119 SCRA 329; Robles vs. Timario, 107 Phil. 809.)
The Order sought to be executed by the assailed Order of execution is the Probate Order of
December 5, 1972 which allegedly resolved the question of ownership of the disputed mining
properties. The said Probate Order enumerated the issues before the Probate Court, thus:

"Unmistakably, there are three aspects in these proceedings: (1) the probate of the holographic
will; (2) the intestate estate aspect; and (3) the administration proceedings for the purported
estate of the decedent in the Philippines.
"In its broad and total perspective the whole proceedings are being impugned by the oppositors
on jurisdictional grounds, i.e., that the fact of the decedent's residence and existence of
properties in the Philippines have not been established.
"Specifically placed in issue with respect to the probate proceedings are: (a) whether or not the
holographic will (Exhibit "J") has lost its efficacy as the last will and testament upon the death
of Alvaro Pastor, Sr. on June 5, 1966, in Cebu City, Philippines; (b) Whether or not the said will
has been executed with all the formalities required by law; and (c) Did the late presentation of
the holographic will affect the validity of the same?
"Issues In the Administration Proceedings are as follows: (1) Was the ex-parte appointment of
the petitioner as special administrator valid and proper? (2) Is there any indispensable necessity
for the estate of the decedent to be placed under administration? (3) Whether or not petition is
qualified to be a special administrator of the estate; and (4) Whether or not the properties
listed in the inventory (submitted by the special administrator but not approved by the Probate
Court) are to be excluded."
Then came what purports to be the dispositive portion:
"Upon the foregoing premises, this Court rules on and resolves some of the problems and
issues presented in these proceedings, as follows:
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"(a)The Court has acquired jurisdiction over the probate proceedings As it hereby allows and
approves the so-called holographic will of testator Alvaro Pastor, Sr., executed on July 31, 1961
with respect to its extrinsic validity, the same having been duly authenticated pursuant to the
requisites or solemnities prescribed by law. Let, therefore, a certificate of its allowance be
prepared by the Branch Clerk of this Court to be signed by this Presiding Judge, and attested by
the seal of the Court, and thereafter attached to the will, and the will and certificate filed and
recorded by the clerk. Let attested copies of the will and of the certificate of allowance thereof
be sent to Atlas Consolidated Mining & Development Corporation, Goodrich Bldg., Cebu City,
and the Register of Deeds of Cebu or of Toledo City, as the case may be, for recording.

"(b)There was a delay in the granting of the letters testamentary or of administration for as a
matter of fact, no regular executor and/or administrator has been appointed up to this time
and the appointment of a special administrator was, and still is, justified under the
circumstances to take possession and charge of the estate of the deceased in the Philippines
(particularly in Cebu) until the problems causing the delay are decided and the regular executor
and/or administrator appointed.
"(c)There is a necessity and propriety of a special administrator and later on an executor and/or
administrator in these proceedings, in spite of this Court's declaration that the oppositors are
the forced heirs and the petitioner is merely vested with the character of a voluntary heir to the
extent of the bounty given to him (under) the will insofar as the same will not prejudice the
legitimes of the oppositors, for the following reasons:
1.To submit a complete inventory of the estate of the decedent-testator Alvaro Pastor, Sr.;

2.To administer and to continue to put to prolific utilization of the properties of the decedent;
3.To keep and maintain the houses and other structures and fences belonging to the estate,
since the forced heirs are residing in Spain, and prepare them for delivery to the heirs in good
order after partition and when directed by the Court, but only after the payment of estate and
inheritance taxes;
"(d)Subject to the outcome of the suit for reconveyance of ownership and possession of real
and personal properties in Civil Case No. 274-T before Branch IX of the Court of First Instance
of Cebu, the intestate estate administration aspect must proceed, unless, however, it is duly
proven by the oppositors that debts of the decedent have already been paid, that there had
been an extrajudicial partition or summary one between the forced heirs, that the legacy to be
given and delivered to the petitioner does not exceed the free portion of the estate of the
testator, that the respective shares of the forced heirs have been fairly apportioned, distributed
and delivered to the two forced heirs of Alvaro Pastor, Sr., after deducting the property willed
to the petitioner, and the estate and inheritance taxes have already been paid to the
Government thru the Bureau of Internal Revenue.
"The suitability and propriety of allowing petitioner to remain as special administrator or
administrator of the other properties of the estate of the decedent, which properties are not
directly or indirectly affected by the provisions of the holographic will (such as bank deposits,
land in Mactan, etc.), will be resolved in another order as separate incident,considering that this

order should have been properly issued solely as a resolution on the issue of whether or not to
allow and approve the aforestated will." (Emphasis supplied.)
130

Nowhere in the dispositive portion is there a declaration of ownership of specific properties. On

the contrary, it is manifest therein that ownership was not resolved. For it confined itself to the
question of extrinsic validity of the will, and the need for and propriety of appointing a special
administrator. Thus it allowed and approved the holographic will "with respect to its extrinsic
validity, the same having been duly authenticated pursuant to the requisites or solemnities
prescribed by law." It declared that the intestate estate administration aspect must proceed
"subject to the outcome of the suit for reconveyance of ownership and possession of reel and
personal properties in Civil Case 274-T before Branch IX of the CFI of Cebu." [Parenthetically,
although the statement refers only to the "intestate" aspect, it defies understanding how
ownership by the estate of some properties could be deemed finally resolved for purposes
of testateadministration, but not so for intestate purposes. Can the estate be the owner of a
property for testate but not for intestate purposes?] Then again, the Probate Order (while
indeed it does not direct the implementation of the legacy) conditionally stated that the
intestate administration aspect must proceed "unless . . . it is proven . . . that the legacy to be
given and delivered to the petitioner does not exceed the free portion of the estate of the
testator," which clearly implies that the issue of impairment of legitime (an aspect of intrinsic
validity) was in fact not resolved. Finally, the Probate Order did not rule on the propriety of
allowing QUEMADA to remain as special administrator of estate properties not covered by the
holographic will, "considering that this (Probate) Order should have been properly issued solely
as a resolution on the issue of whether or not to allow and approve the aforestated will." prLL
(c)That the Probate Order did not resolve the question of ownership of the properties listed in
the estate inventory was appropriate, considering that the issue of ownership was the very
subject of controversy in the reconveyance suit that was still pending in Branch IX of the Court
of First Instance of Cebu.

(d)What, therefore, the Court of Appeals and, in effect, the Supreme Court affirmed en
toto when they reviewed the Probate Order were only the matters properly adjudged in the said
Order.
(e)In an attempt to justify the issuance of the order of execution dated August 20, 1980, the
Probate Court in its Order of November 11, 1980 explained that the basis for its conclusion that
the question of ownership had been formally resolved by the Probate Order of 1972 are the
findings in the latter Order that (1) during the lifetime of the decedent, he was receiving
royalties from ATLAS; (2) he had resided in the Philippines since pre-war days and was engaged
in the mine prospecting business since 1937 particularly in the City of Toledo; and (3) PASTOR,
JR. was only acting as dummy for his father because the latter was a Spaniard.
Based on the premises laid, the conclusion is obviously farfetched.
(f)It was, therefore, error for the assailed implementing Orders to conclude that the Probate
Order adjudged with finality the question of ownership of the mining properties and royalties,
and that, premised on this conclusion, the dispositive portion of the said Probate Order directed
the special administrator to pay the legacy in dispute.
2.Issue of Intrinsic Validity of the Holographic Will
(a)When PASTOR, SR. died in 1966, he was survived by his wife, aside from his two legitimate
children and one illegitimate son. There is therefore a need to liquidate the conjugal partnership
and set apart the share of PASTOR, SR.'s wife in the conjugal partnership preparatory to the
administration and liquidation of the estate of PASTOR, SR. which will include, among others,
the determination of the extent of the statutory usufructuary right of his wife until her
131

death. ** When the disputed Probate order was issued on December 5, 1972, there had been
no liquidation of the community properties of PASTOR, SR. and his wife.
(b)So, also, as of the same date, there has been no prior definitive determination of the assets
of the estate of PASTOR, SR. There was an inventory of his properties presumably prepared by
the special administrator, but it does not appear that it was ever the subject of a hearing or
that it was judiciary approved. The reconveyance or recovery of properties allegedly owned but
not in the name of PASTOR, SR. was still being litigated in another court.
(c)There was no appropriate determination, much less payment, of the debts of the decedent
and his estate. Indeed, it was only in the Probate Order of December 5, 1972 where the
Probate Court ordered that
". . . a notice be issued and published pursuant to the provisions of Rule 86 of the Rules of
Court, requiring all persons having money claims against the decedent to file them in the office
of the Branch Clerk of this Court."
(d)Nor had the estate tax been determined and paid, or at least provided for, as of December
5, 1972.
(e)The net assets of the estate not having been determined, the legitime of the forced heirs in
concrete figures could not be ascertained.
(f)All the foregoing deficiencies considered, it was not possible to determine whether the legacy
of QUEMADA a fixed share in a specific property rather than an aliquot part of the entire net
estate of the deceased would produce an impairment of the legitime of the compulsory heirs.
(g)Finally, there actually was no determination of the intrinsic validity of the will in other
respects. It was obviously for this reason that as late as March 5, 1980 more than 7 years
after the Probate Order was issued the Probate Court scheduled on March 25, 1980 a
hearing on the intrinsicvalidity of the will.
3.Propriety of Certiorari
Private respondent challenges the propriety of certiorari as a means to assail the validity of the
disputed Order of execution. He contends that the error, if any, is one of judgment, not
jurisdiction, and properly correctible only by appeal, not certiorari. llcd
Under the circumstances of the case at bar, the challenge must be rejected. Grave abuse of
discretion amounting to lack of jurisdiction is much too evident in the actuations of the probate
court to be overlooked or condoned.

(a)Without a final, authoritative adjudication of the issue as to what properties compose the
estate of PASTOR, SR. in the face of conflicting claims made by heirs and a non-heir (MA.
ELENA ACHAVAL DE PASTOR) involving properties not in the name of the decedent, and in the
absence of a resolution on the intrinsic validity of the will here in question, there was no basis
for the Probate Court to hold in its Probate Order of 1972, which it did not, that private
respondent is entitled to the payment of the questioned legacy. Therefore, the Order of
Execution of August 20, 1980 and the subsequent implementing orders for the payment of
QUEMADA's legacy, in alleged implementation of the dispositive part of the Probate Order of
December 5, 1972, must fall for lack of basis.

132

(b)The ordered payment of legacy would be violative of the rule requiring prior liquidation of
the estate of the deceased, i.e., the determination of the assets of the estate and payment of
all debts and expenses, before apportionment and distribution of the residue among the heirs
and legatees. (Bernardo vs. Court of Appeals, 7 SCRA 367.)
(c)Neither has the estate tax been paid on the estate of PASTOR, SR. Payment therefore of the
legacy to QUEMADA would collide with the provision of the National Internal Revenue Code
requiring payment of estate tax before delivery to any beneficiary of his distributive share of the
estate (Section 107 [c]).
(d)The assailed order of execution was unauthorized, having been issued purportedly under
Rule 88, Section 6 of the Rules of Court which reads:
"Sec. 6.Court to fix contributive shares where devisees, legatees, or heirs have been in
possession. Where devisees, legatees, or heirs have entered into possession of portions of
the estate before the debts and expenses have been settled and paid and have become liable
to contribute for the payment of such debts and expenses, the court having jurisdiction of the
estate may, by order for that purpose, after hearing, settle the amount of their several
liabilities, and order how much and in what manner each person shall contribute, and may issue
execution as circumstances require."
The above provision clearly authorizes execution to enforce payment ofdebts of estate. A legacy
is not a debt of the estate; indeed, legatees are among those against whom execution is
authorized to be issued.
". . . there is merit in the petitioners' contention that the probate court generally cannot issue a
writ of execution. It is not supposed to issue a writ of execution because its orders usually refer
to the adjudication of claims against the estate which the executor or administrator may satisfy
without the necessity of resorting to a writ of execution. The probate court, as such, does not
render any judgment enforceable by execution.
"The circumstances that the Rules of Court expressly specifies that the probate court may issue
execution (a) to satisfy (debts of the estate out of) the contributive shares of devisees, legatees
and heirs in possession of the decedent's assets (Sec. 6, Rule 88), (b) to enforce payment of
the expenses of partition (Sec. 3, Rule 90), and (c) to satisfy the costs when a person is cited
for examination in probate proceedings (Sec. 13, Rule 142) may mean, under the rule
of inclusion unius est exclusion alterius, that those are the only instances when it can issue a
writ of execution. (Vda. de Valera vs. Ofilada, 59 SCRA 96, 108.)
(d)It is within a court's competence to order the execution of a final judgment; but to order the
execution of a final order (which is not even meant to be executed) by reading into it terms that
are not there and in utter disregard of existing rules and law, is manifest grave abuse of
discretion tantamount to lack of jurisdiction. Consequently, the rule that certiorari may not be
invoked to defeat the right of a prevailing party to the execution of a valid and final judgment,
is inapplicable. For when an order of execution is issued with grave abuse of discretion or is at
variance with the judgment sought to be enforced (PVTA vs. Honorable Gonzales, 92 SCRA
172), certiorari will lie to abate the order of execution.
(e)Aside from the propriety of resorting to certiorari to assail an order of execution which varies
the terms of the judgment sought to be executed or does not find support in the dispositive
part of the latter, there are circumstances in the instant case which justify the remedy applied
for.
133

Petitioner MA. ELENA ACHAVAL DE PASTOR, wife of PASTOR, JR., is the holder in her own right
of three mining claims which are one of the objects of conflicting claims of ownership. She is
not an heir of PASTOR, SR. and was not a party to the probate proceedings. Therefore, she
could not appeal from the Order of execution issued by the Probate Court. On the other hand,
after the issuance of the execution order, the urgency of the relief she and her co-petitioner
husband seek in the petition for certiorari militates against requiring her to go through the
cumbersome procedure of asking for leave to intervene in the probate proceedings to enable
her, if leave is granted, to appeal from the challenged order of execution which has ordered
the immediate transfer and/or garnishment of the royalties derived from mineral properties of
which she is the duly registered owner and/or grantee together with her husband. She could
not have intervened before the issuance of the assailed orders because she had no valid ground
to intervene. The matter of ownership over the properties subject of the execution was then
still being litigated in another court in a reconveyance suit filed by the special administrator of
the estate of PASTOR, SR. llcd
Likewise, at the time petitioner PASTOR, JR. filed the petition for certiorari with the Court of
Appeals, appeal was not available to him since his motion for reconsideration of the execution
order was still pending resolution by the Probate Court. But in the face of actual garnishment of
their major source of income, petitioners could no longer wait for the resolution of their motion
for reconsideration. They needed prompt relief from the injurious effects of the execution order.
Under the circumstances, recourse to certiorari was the feasible remedy.
WHEREFORE, the decision of the Court of Appeals in CA-G.R. No. SP-11373-R is reversed. The
Order of execution issued by the probate Court dated August 20, 1980, as well as all the Orders
issued subsequent thereto in alleged implementation of the Probate Order dated December 5,
1972, particularly the Orders dated November 11, 1980 and December 17, 1980, are hereby set
aside; and this case is remanded to the appropriate Regional Trial Court for proper proceedings,
subject to the judgment to be rendered in Civil Case No. 274-R.
SO ORDERED.
||| (Pastor, Jr. v. Court of Appeals, G.R. No. L-56340, June 24, 1983)

No opposition to probate of the lost or destroyed will

[G.R. Nos. L-3087 & L-3088. July 31, 1954.]
In re: Testate Estate of the deceased JOSE B. SUNTAY. SILVINO SUNTAY, petitionerappellant, vs. FEDERICO C. SUNTAY, administrator-appellee.

Claro M. Recto for appellant.

Sison & Aruego for appellee.
SYLLABUS
1. WILLS PROBATIVE OF WILLS; ASSIGNMENT OF INTEREST IN THE WILL ESTATE, NOT A
BAR TO PROBATE OF A LOST OF FOREIGN WILL. In an intestate proceeding that had
already been instituted in the Philippines, the widow and child of the testator are not estopped
from asking for the probate of a lost will or of a foreign will just because of a lost will or of a
foreign will just because of the transfer of assignment of their share, right, title and interest in
134

the estate of the deceased, The validity and legality of such assignments can not be threshed
out in the probate proceeding which is concerned only with the probate of the will.
2. ID.; ID.; PROOF OF LOST WILL; PROVISION OF WILL MUST BE PROVED BY AT LEAST TWO
CREDIBLE WITNESSES; WHO ARE CREDIBLE WITNESSES. Granting that a will was duly
executed and that it was in existence at the time of, and not revoked before, the death of the
testator, still the provisions of the lost will must be clearly and distinctly p[roved by at least two
credible witnesses. "Credible witnesses" mean competent witnesses and not those who testify
to facts from or upon hearsay.
3. ID.; PROBATE OF WILL IS A PROCEEDING IN REM; NOTICE TO ALL PARTIES ESSENTIAL
FOR ITS VALIDITY. In the absence of proof that the municipal district court of Amoy is a
probate court and on the Chinese law of procedure in probate matters, it may be presumed that
the proceedings in the matter of probating or allowing a will in the Chinese courts are the same
as those provided for in our laws on the subject. It is a proceeding in re, and for the validity of
such proceedings personal notice or by publication or both to all interested parties must be
made.
4. ID.; ID.; PROCEEDINGS LIKENED TO A DEPOSITION OR TO A PERPETUATION OF
TESTIMONY. The proceedings had in the municipal district court of Amoy, China, may be
likened to a deposition or to as perpetuation of testimony, and even if it were so, notice all
interested parties was necessary for the validity of such proceedings.
5. ID.; WILLS PROVED IN A FOREIGN COUNTRY; PROBATE SHOULD BE IN ACCORDANCE
WITH ACCEPTED BASIC AND FUNDAMENTAL CONCEPTS AND PRINCIPLES. Where it appears
that the proceedings in the court of a foreign country were held for the purpose of taking the
testimony of two attesting witnesses to the will and the order of the probate court did not
purport to allow the will, the proceedings cannot be deemed to be for the probate of a will, as it
was not done in accordance with the basic fundamental concepts and principles followed in the
probate and allowance of wills. Consequently, the will referred to therein cannot be allowed ,
filed and recorded by a competent court of this country.
6. WILL PROBATE OF; LACK OF OBJECTION TO PROBATE OF LOST OF WILL DOES
EXECUTION. The lack of objection to the probate of a lost will does not relieve the proponent
thereof or the party interested in its probate from establishing its due execution and proving
clearly and distinctly the provisions thereof by at least two credible witnesses, as provided for in
section 6, Rule 77 of the Rules of Court.
7. ID., APPEALS; JURISDICTION OF SUPREME COURT TO REVIEW FINDINGS OF FACT AND
LEGAL PRONOUNCEMENTS IN CASES INVOLVING MORE THAN P50,000. In appeal from a
judgment of the probate court, the Supreme Court, in the exercise of its appellate jurisdiction,
has the power to review and correct erroneous findings of fact and legal pronouncements of the
probate court, where the amount involved is more than P50,000.
DECISION
PADILLA, J p:
This is an appeal from a decree of the Court of First Instance of Bulacan disallowing the alleged
will and testament executed in Manila on November 1929, and the alleged last will and
testament executed in Kulangsu, Amoy, China, on 4 January 1931, by Jose B. Suntay. The value
of the estate left by the deceased is more than P50,000.
135

On 14 May 1934 Jose B. Suntay, a Filipino citizen and resident of the Philippines, died in the city
of Amoy, Fookien province, Republic of China, leaving real and personal properties in the
Philippines and a house in Amoy, Fookien province, China, and children by the first marriage
had with the late Manuela T. Cruz namely, Apolonio, Concepcion, Angel, Manuel, Federico, Ana,
Aurora, Emiliano and Jose, Jr. and a child named Silvino by the second marriage had with Maria
Natividad Lim Billian who survived him. Intestate proceedings were instituted in the Court of
First Instance of Bulacan (special proceedings No. 4892) and after hearing letters of
administration were issued to Apolonio Suntay. After the latter's death Federico C. Suntay was
appointed administrator of the estate. On 15 October 1934 the surviving widow filed a petition
in the Court of First Instance of Bulacan for the probate of a last will and testament claimed to
have been executed and signed in the Philippines on November 1929 by the late Jose B.Suntay.
This petition was denied because of the loss of said will after the filing of the petition and
before the hearing thereof and of the insufficiency of the evidence to establish the loss of the
said will. An appeal was taken from said order denying the probate of the will and this Court
held the evidence before the probate court sufficient to prove the loss of the will and remanded
the case to the Court of First Instance of Bulacan for further proceedings (63 Phil., 793). In
spite of the fact that a commission from the probate court was issued on 24 April 1937 for the
taking of the deposition of Go Toh, an attesting witness to the will, on 7 February 1938 the
probate court denied a motion for continuance of the hearing sent by cablegram from China by
the surviving widow and dismissed the petition. In the meantime the Pacific War supervened.
After liberation, claiming that he had found among the files, records and documents of his late
father a will and testament in Chinese characters executed and signed by the deceased on 4
January 1931 and that the same was filed, recorded and probated in the Amoy district court,
Province of Fookien, China, Silvino Suntay filed a petition in the intestate proceedings praying
for the probate of the will executed in the Philippines on November 1929 (Exhibit B) or of the
will executed in Amoy, Fookien, China, on 4 January 1931 (Exhibit N).
There is no merit in the contention that the petitioner Silvino Suntay and his mother Maria
Natividad Lim Billian are estopped from asking for the probate of the lost will or of the foreign
will because of the transfer or assignment of their share right, title and interest in the estate of
the late Jose B. Suntay to Jose G. Gutierrez and the spouses Ricardo Gutierrez and Victoria
Goo and the subsequent assignment thereof by the assignees to Francisco Pascual and by the
latter to Federico C. Suntay, for the validity and legality of such assignments cannot be
threshed out in this proceedings which is concerned only with the probate of the will and
testament executed in the Philippines on November 1929 or of the foreign will allegedly
executed in Amoy on 4 January 1931 and claimed to have been probated in the municipal
district court of Amoy, Fookien province, Republic of China.

As to prescription, the dismissal of the petition for probate of the will on 7 February 1938 was
no bar to the filing of this petition on 18 June 1947, or before the expiration of ten years.
As to the lost will, section 6, Rule 77, provides:
No will shall be proved as a lost or destroyed will unless the execution and validity of the same
be established, and the will is proved to have been in existence at the time of the death of the
testator, or is shown to have been fraudulently or accidentally destroyed in the lifetime of the
testator without his knowledge, nor unless its provisions are clearly and distinctly proved by at
least two credible witnesses. When a lost will is proved, the provisions thereof must be distinctly
stated and certified by the judge, under the seal of the court, and the certificate must be filed
and recorded as other wills are filed and recorded.
136

The witnesses who testified to the provisions of the lost will are Go Toh, an attesting witness,
Anastacio Teodoro and Ana Suntay. Manuel Lopez, who was an attesting witness to the lost
will, was dead at the time of the hearing of this alternative petition. In his deposition Go Toh
testifies that he was one of the witnesses to the lost will consisting of twenty-three sheets
signed by Jose B. Suntay at the bottom of the will and each and every page thereof in the
presence of Alberto Barretto, Manuel Lopez and himself and underneath the testator's signature
the attesting witnesses signed and each of them signed the attestation clause and each and
every page of the will in the presence of the testator and of the other witnesses (answers to the
31st, 41st, 42nd, 49th, 50th, 55th and 63rd interrogatories, Exhibit D-1), but did not take part
in the drafting thereof (answer to the 11th interrogatory, Id.); that he knew the contents of the
will written in Spanish although he knew very little of that language (answers to the 22nd and
23rd interrogatories and to X-2 cross-interrogatory, Id.) and all he knows about the contents of
the lost will was revealed to him by Jose B. Suntay at the time it was executed (answers to the
25th interrogatory and to X-4 and X-8 cross-interrogatories, Id.); that Jose B. Suntay told him
that the contents thereof are the same as those of the draft (Exhibit B) (answers to the 33rd
interrogatory and to X-8 cross-interrogatory, Id.) which he saw in the office of Alberto Barretto
in November 1929 when the will was signed (answers to the 69th, 72nd, and 74th
interrogatories, Id); that Alberto Barretto handed the draft and said to Jose B. Suntay: "You had
better see if you want any correction" (answers to the 81st, 82nd and 83rd interrogatories, Id.);
that "after checking Jose B. Suntay put the 'Exhibit B' in his pocket and had the original signed
and executed" (answers to the 91st interrogatory, and to X-18 cross-interrogatory, Id.); that
Mrs. Suntay had the draft of the will (Exhibit B) translated into Chinese and he read the
translation (answers to the 67th interrogatory, Id.); that he did not read the will and did not
compare it (check it up) with the draft (Exhibit B) (answers to X-6 and X-20 crossinterrogatories, Id.).

Ana Suntay testifies that sometime in September 1934 in the house of her brother
Apolonio Suntay she learned that her father left a will "because of the arrival of my brother
Manuel Suntay, who was bringing along with him certain document and he told us or he was
telling us that it was the will of our father Jose B. Suntay which was taken from Go Toh.." (p.
524, t. s. n., hearing of 24 February 1948); that she saw her brother Apolonio Suntay read the
document in her presence and of Manuel and learned of the adjudication made in the will by
her father of his estate, to wit: one-third to his children, one-third to Silvino and his mother and
the other third to Silvino. Apolonio, Concepcion and Jose, Jr. (pp. 526-8, 530-1, 542, t. s.
n. Id.); that "after Apolonio read that portion, then he turned over the document to Manuel,
and he went away," (p. 528, t. s. n., Id.). On cross-examination, she testifies that she read the
part of the will on adjudication to know what was the share of each heir (pp. 530, 544, t. s.
n., Id.) and on redirect she testifies that she saw the signature of her father, Go Toh, Manuel
Lopez and Alberto Barretto (p. 546, t. s. n., Id.).
Anastacio Teodoro testifies that one day in November 1934 (p. 273, t. s. n., hearing of 19
January 1948), before the last postponement of the hearing granted by the Court, Go Toh
arrived at his law office in the De los Reyes Building and left an envelope wrapped in red
handkerchief [Exhibit C] (p. 32, t. s. n., hearing of 13 October 1947); that he checked up the
signatures on the envelope Exhibit A with those on the will placed in the envelope (p. 33,
t.s.n., Id.); that the will was exactly the same as the draft Exhibit B (pp. 32, 47, 50, t. s.
n., Id.).
137

If the will was snatched after the delivery thereof by Go Toh to Anastacio Teodoro and returned
by the latter to the former because they could not agree on the amount of fees, the former
coming to the latter's office straight from the boat (p. 315, t. s. n., hearing of 19 January 1948)
that brought him to the Philippines from Amoy, and that delivery took place in November 1934
(p. 273, t. s. n., Id.), then the testimony of Ana Suntay that she saw and heard her brother
Apolonio Suntay read the will sometime in September 1934 (p. 524, t. s. n., hearing of 24
February 1948), must not be true.
Although Ana Suntay would be a good witness because she was testifying against her own
interest, still the fact remains that she did not read the whole will but only the adjudication (pp.
526-8, 530- 1, 542, t. s. n., Id.) and saw only the signature, of her father and of the witnesses
Go Toh, Manuel Lopez and Alberto Barretto (p. 546, t. s. n.,Id.). But her testimony on crossexamination that she read the part of the will on adjudication is inconsistent with her testimony
in chief that after Apolonio had read that part of the will he turned over or handed the
document to Manuel who went away (p. 528, t. s. n., Id.).
If it is true that Go Toh saw the draft Exhibit B in the office of Alberto Barretto in November
1929 when the will was signed, then the part of his testimony that Alberto Barretto handed the
draft to Jose B. Suntay to whom he said: "You had better see if you want any correction" and
that "after checking Jose B. Suntay put the 'Exhibit B' in his pocket and had the original signed
and executed" cannot be true, for it was not the time for correcting the draft of the will,
because it must have been corrected before and all corrections and additions written in lead
pencil must have been inserted and copied in the final draft of the will which was signed on that
occasion. The bringing in of the draft (Exhibit B) on that occasion is just to fit it within the
framework of the appellant's theory. At any rate, all of Go Toh's testimony by deposition on the
provisions of the alleged lost will is hearsay, because he came to know or he learned of them
from information given him by Jose B. Suntay and from reading the translation of the draft
(Exhibit B) into Chinese.
Much stress is laid upon the testimony of Federico C. Suntay who testifies that he read the
supposed will or the alleged will of his father and that the share of the surviving widow,
according to the will, is two-thirds of the estate (p. 229, t. s. n., hearing of 24 October 1947).
But this witness testified to oppose the appointment of a co-administrator of the estate, for the
reason that he had acquired the interest of the surviving widow not only in the estate of her
deceased husband but also in the conjugal property (pp. 148, 205, 228, 229, 231, t. s. n., Id.)
Whether he read the original will or just the copy thereof (Exhibit B) is not clear. For him the
important point was that he had acquired all the share, participation and interest of the
surviving widow and of the only child by the second marriage in the estate of his deceased
father. Be that as it may, his testimony that under the will the surviving widow would take twothirds of the estate of the late Jose B Suntay is at variance with Exhibit B and the testimony of
Anastacio Teodoro. According to the latter, the third for strict legitime is for the ten children;
the third for betterment is for Silvino, Apolonio, Concepcion and Jose Jr.; and the third for free
disposal is for the surviving widow and her child Silvino.
Hence, granting that there was a will duly executed by Jose B. Suntay placed in the envelope
(Exhibit A) and that it was in existence at the time of, and not revoked before, his death, still
the testimony of Anastacio Teodoro alone falls short of the legal requirement that the provisions
of the lost will must be "clearly and distinctly proved by at least two credible witnesses."
Credible witnesses mean competent witnesses and those who testify to facts from or upon
hearsay are neither competent nor credible witnesses.
138

On the other hand, Alberto Barretto testifies that in the early part of 1929 he prepared or drew
up two wills for Jose B. Suntay at the latter's request, the rough draft of the first will was in his
own handwriting, given to Manuel Lopez for the final draft or typing and returned to him; that
after checking up the final with the rough draft he tore it and returned the final draft to Manuel
Lopez; that this draft was in favor of all the children and the widow (pp. 392-4, 449, t. s. n.,
hearing of 21 February 1948); that two months later Jose B. Suntay and Manuel Lopez called
on him and the former asked him to draw up another will favoring more his wife and child
Silvino; that he had the rough draft of the second will typed (pp. 395. 449 t. s. n., Id.) and gave
it to Manuel Lopez (p. 396. t. s. n., Id.); that he did not sign as witness the second will of Jose
B. Suntaycopied from the typewritten draft [Exhibit B] (p. 420, t. s. n., Id.); that the
handwritten insertions or additions in lead pencil to Exhibit B are not his (pp. 415-7, 435-6, 457,
t. s. n., Id.); that the final draft of the first will made up of four or five pages (p. 400, t. s.
n., Id.) was signed and executed, two or three months after Suntay and Lopez had called on
him (pp. 397-8, 403, 449, t. s. n., Id.) in his office at the Cebu Portland Cement in the China
Banking Building on Dasmarias street by Jose B. Suntay, Manuel Lopez and a Chinaman who
had all come from Hagonoy (p. 398, t. s. n., Id.); that on that occasion they brought an
envelope (Exhibit A) where the following words were written: "Testamento de Jose B. Suntay"
(pp. 399, 404, t, s. n., Id.); that after the signing of the will it was placed inside the envelope
(Exhibit A) together with an inventory of the properties of Jose B. Suntay and the envelope was
sealed by the signatures of the testator and the attesting witnesses (pp. 398, 401, 441, 443,
461, t. s. n., Id.); that he again saw the envelope (Exhibit A) in his house one Saturday in the
later part of August 1934, brought by Go Toh and it was then in perfect condition (pp. 405-6,
411, 440-2, t. s. n.,Id.); that on the following Monday Go Toh went to his law office bringing
along with him the envelope (Exhibit A) in the same condition; that he told Go Toh that he
would charge P25,000 as fee for probating the will (pp. 406, 440-2, Id.); that Go Toh did not
leave the envelope (Exhibit A) either in his house or in his law office (p. 407, t. s. n., Id.); that
Go Toh said he wanted to keep it and on no occasion did Go Toh leave it to him (pp. 409, 410,
t. s. n., Id.).
The testimony of Go Toh taken and heard by Assistant Fiscal F. B. Albert in connection with the
complaint for estafa filed against Manuel Suntay for the alleged snatching of the envelope
(Exhibit A), corroborates the testimony of Alberto Barretto to the effect that only one will was
signed by Jose B. Suntay at his office in which he (Alberto Barretto), Manuel Lopez and Go Toh
took part as attesting witnesses (p. 15, t. s. n., Exhibit 6). Go Toh testified before the same
assistant fiscal that he did not leave the will in the hands of Anastacio Teodoro (p. 26, t. s. n.,
Exhibit 6). He said, quoting his own words, "Because I can not give him this envelope even
though the contract (on fees) was signed. I have to bring that document to court or to
anywhere else myself." (p. 27, t. s. n., Exhibit 6).
As to the will claimed to have been executed on 4 January 1931 in Amoy, China, the law on the
point is Rule 78. Section 1 of the rule provides:
Wills proved and allowed in a foreign country, according to the laws of such country, may be
allowed, filed, and recorded by the proper Court of First Instance in the Philippines.
Section 2 provides:
When a copy of such will and the allowance thereof, duly authenticated, is filed with a petition
for allowance in the Philippines, by the executor or other person interested, in the court having
jurisdiction, such court shall fix a time and place for the hearing, and cause notice thereof to be
given as in case of an original will presented for allowance.
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Section 3 provides:

If it appears at the hearing that the will should be allowed in the Philippines, the court shall so
allow it, and a certificate of its allowance, signed by the Judge, and attested by the seal of the
court, to which shall be attached a copy of the will, shall be filed and recorded by the clerk, and
the will shall have the same effect as if originally proved and allowed in such court.

The fact that the municipal district court of Amoy, China, is a probate court must be proved.
The law of China on procedure in the probate or allowance of wills must also be proved. The
legal requirements for the execution of a valid will in China in 1931 should also be established
by competent evidence. There is no proof on these points. The unverified answers to the
questions propounded by counsel for the appellant to the Consul General of the Republic of
China set forth in Exhibits R-1 and R-2, objected to by counsel for the appellee, are
inadmissible, because apart from the fact that the office of Consul General does not qualify and
make the person who holds it an expert on the Chinese law on procedure in probate matters, if
the same be admitted, the adverse party would be deprived of his right to confront and crossexamine the witness. Consuls are appointed to attend to trade matters. Moreover, it appears
that all the proceedings had in the municipal district court of Amoy were for the purpose of
taking the testimony of two attesting witnesses to the will and that the order of the municipal
district court of Amoy does not purport to probate the will. In the absence of proof that the
municipal district court of Amoy is a probate court and on the Chinese law of procedure in
probate matters, it may be presumed that the proceedings in the matter of probating or
allowing a will in the Chinese courts are the same as those provided for in our laws on the
subject. It is a proceedings in rem and for the validity of such proceedings personal notice or by
publication or both to all interested parties must be made. The interested parties in the case
were known to reside in the Philippines. The evidence shows that no such notice was received
by the interested parties residing in the Philippines (pp. 474, 476, 481, 503-4, t. s. n., hearing
of 24 February 1948). The proceedings had in the municipal district court of Amoy, China, may
be likened to a deposition or to a perpetuation of testimony, and even if it were so it does not
measure or come up to the standard of such proceedings in the Philippines for lack of notice to
all interested parties and the proceedings were held at the back of such interested parties.
The order of the municipal district court of Amoy, China, which reads, as follows:
ORDER:
SEE BELOW

The above minutes were satisfactorily confirmed by the interrogated parties, who declare that
there are no errors, after said minutes were loudly read and announced actually in the court.
Done and subscribed on the Nineteenth day of the English month of the 35th year of the
Republic of China in the Civil Section of the Municipal District Court of Amoy, China.
HUANG KUANG CHENG

Clerk of Court
CHIANG TENG HWA

Judge
(Exhibit N-13, p. 89 Folder of Exhibits.)
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does not purport to probate or allow the will which was the subject of the proceedings. In view
thereof, the will and the alleged probate thereof cannot be said to have been done in
accordance with the accepted basic and fundamental concepts and principles followed in the
probate and allowance of wills. Consequently, the authenticated transcript of proceedings held
in the municipal district court of Amoy, China, cannot be deemed and accepted as proceedings
leading to the probate or allowance of a will and, therefore, the will referred to therein cannot
be allowed, filed and recorded by a competent court of this country.
The decree appealed from is affirmed, without pronouncement as to costs.

Pablo, Bengzon, A. Reyes, Labrador and Concepcion, JJ., concur.

Separate Opinions
PARAS, C.J., dissenting:
As a preliminary statement we may well refer to the case of Maria Natividad Lim Billian,
petitioner and appellant, vs. Apolonio Suntay, Angel Suntay, Manuel Suntay, and Jose Suntay,
oppositors and appellees, 63 Phil., 793-97, in which the following decision was rendered by this
Court on November 25, 1936, holding that the will executed by Jose B. Suntay who died in the
City of Amoy, China, on May 14, 1934, was lost under the circumstances pointed out therein,
and ordering the return of the case to the Court of First Instance of Bulacan for further
proceedings:
"On May 14, 1934, Jose B. Suntay died in the City of Amoy, China. He married twice, the first
time to Manuela T. Cruz with whom he had several children now residing in the Philippines, and
the second time to Maria Natividad Lim Billian with whom he had a son.

"On the same date, May 14, 1934, Apolonio Suntay, eldest son of the deceased by his first
marriage, filed the latter's intestate in the Court of First Instance of Manila (civil case No. 4892).
"On October 15, 1934, and in the same court, Maria Natividad Lim Billian also instituted the
present proceedings for the probate of a will allegedly left by the deceased.
"According to the petitioner, before the deceased died in China he left with her a sealed
envelope (Exhibit A) containing his will and, also another document (Exhibit B of the petitioner)
said to be a true copy of the original contained in the envelope. The will in the envelope was
executed in the Philippines, with Messrs. Go Toh, Alberto Barreto and Manuel Lopez as attesting
witnesses. On August 25, 1934, Go Toh, as attorney-in-fact of the petitioner, arrived in the
Philippine with the will in the envelope and its copy Exhibit B. While Go Toh was showing this
envelope to Apolonio Suntay and Angel Suntay, children by first marriage of the deceased, they
snatched and opened it and, after getting its contents and throwing away the envelope, they
fled.
"Upon this allegation, the petitioner asks in this case that the brothers Apolonio, Angel, Manuel
and Jose Suntay, children by the first marriage of the deceased, who allegedly have the
document contained in the envelope which is the will of the deceased, be ordered to present it
in court, that a day be set for the reception of evidence on the will, and that the petitioner be
appointed executrix pursuant to the designation made by the deceased in the will.
"In answer to the court's order to present the alleged will, the brothers Apolonio, Angel, Manuel
and Jose Suntay stated that they did not have the said will and denied having snatched it from
Go Toh.
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"In view of the allegations of the petition and the answer of the brothers Apolonio, Angel,
Manuel and Jose Suntay, the questions raised herein are: The loss of the alleged will of the
deceased, whether Exhibit B accompanying the petition is an authentic copy thereof, and
whether it has been executed with all the essential and necessary formalities required by law
for its probate.
"At the trial of the case on March 26, 1934, the petitioner put two witnesses upon the stand, Go
Toh and Tan Boon Chong, who corroborated the allegation that the brothers Apolonio and
Angel appropriated the envelope in the circumstances above-mentioned. The oppositors have
not adduced any evidence counter to the testimony of these two witnesses. The court, while
making no express finding on this fact, took it for granted in its decision; but it dismissed the
petition believing that the evidence is insufficient to establish that the envelope seized from Go
Toh contained the will of the deceased, and that the said will was executed with all the
essential and necessary formalities required by law for its probate.
"In our opinion, the evidence is sufficient to establish the loss of the document contained in the
envelope. Oppositors' answer admits that, according to Barreto, he prepared a will of the
deceased to which he later become a witness together with Go Toh and Manuel Lopez, an that
this will was placed in an envelope which was signed by the deceased and by the instrumental
witnesses. In court there was presented and attached to the case an open and empty envelope
signed by Jose B. Suntay, Alberto Barretto, Go Toh and Manuel Lopez. It is thus undeniable that
this envelope A is the same one that contained the will executed by the deceased drafted by
Barretto and with the latter, Go Toh and Manuel Lopez as attesting witnesses. These tokens
sufficiently point to the loss of the will of the deceased, a circumstance justifying the
presentation of secondary evidence of its contents and of whether it was executed with all the
essential and necessary legal formalities.
"The trial of this case was limited to the proof of loss of the will, and from what has taken place
we deduce that it was not petitioner's intention to raise, upon the evidence adduced by her, the
other points involved herein, namely, as we have heretofore indicated, whether Exhibit B is a
true copy of the will and whether the latter was executed with all the formalities required by
law for its probate. The testimony of Alberto Barreto bears importantly in this connection.
"Wherefore, the loss of the will executed by the deceased having been sufficiently established,
it is ordered that this case be remanded to the court of origin for further proceedings in
obedience to this decision, without any pronouncement as to the costs. So ordered".
On June 18, 1947, Silvino Suntay, the herein petitioner, filed a petition in the court of First
Instance of Bulacan praying "that an order be issued (a) either directing the continuation of the
proceedings in the case remanded by the Supreme Court by virtue of its decision in G. R. No.
44276 and fixing a date for the reception of evidence of the contents of the will declared lost, or
the allowance, filing and recording of the will of the deceased which had been duly probated in
China, upon the presentation of the certificates and authentications required by Section 41,
Rule 123 (Yu Chengco vs. Tiaoqui supra), or both proceedings concurrently and simultaneously;
(b) that letters of administration be issued to herein petitioner as co-administrator of the estate
of the deceased together with Federico Suntay; and (c) that such other necessary and proper
orders be issued which this Honorable Court deems appropriate in the premises." While this
petition was opposed by Federico C. Suntay, son of the deceased Jose B.Suntay with his first
wife, Manuela T. Cruz, the other children of the first marriage, namely, Ana Suntay,
Aurora Suntay, Concepcion Suntay, Lourdes Guevara Vda. de Sunatay, Manuel Suntay and
Emiliano Suntay, filed the following answer stating that they had no opposition thereto; "Come
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now the heirs Concepcion Suntay, Ana Suntay, Aurora Suntay, Lourdes Guevara Vda.
de Suntay, Manuel Suntay, and Emiliano Suntay, through their undersigned attorney, and, in
answer to the alternative petition filed in these proceedings by Silvino Suntay, through counsel,
dated June 18, 1947, to this Honorable Court respectfully state that, since said alternative
petition seeks only to put into effect the testamentary disposition and wishes of their late
father, they have no opposition thereto."

After hearing, the Court of First Instance of Bulacan rendered on April 19, 1948, the following
decision:
"This action is for the legalization of the alleged will of Jose B. Suntay, deceased.
"In order to have a comprehensive understanding of this case, it is necessary to state the
background on which the alternative petition of the herein petitioner Silvino Suntay has been
based.
"The decision of the Supreme Court (Exhibit O), in re will of the deceased Jose B. Suntay, 63
Phil., 793-797, is hereunder produced:
(As quoted above)
"The above quoted decision of the Supreme Court was promulgated on November 25, 1936
(Exhibit O).
"The Clerk of the Court of Court of First Instance of Bulacan notified the parties of the decision
on December 15, 1936; and the case was set for hearing on February 12, 1937, but it was
transferred to March 29, 1937 (Exhibit C), on motion of the then petitioned until 'further setting'
in the order of court dated March 18, 1937, upon motion of the petitioner (Exhibit H).
"In the meantime, the deposition of Go Toh was being sought (Exhibit H).
"The hearing of the case was again set for February 7, 1936, by order of the court dated
January 5, 1938, upon motion of Emiliano Suntay and Jose Suntay, Jr. On the same day of the
hearing which had been set, the petitioner, then, Maria Natividad Lim Bilian, set a telegram
from Amoy, China, addressed to the Court of First Instance of Bulacan moving for the
postponement of the hearing on the ground that Atty. Eriberto de Silva who was representing
her died (Exhibit K). The court, instead of granting the telegraphic motion for postponement,
dismissed the case in the order dated February 7, 1938 (Exhibit L).
"On July 3, 1947, the petitioner Silvino Suntay filed a motion for the consolidation of the
intestate Estate of the deceased Jose B. Suntay, Special Proceeding No. 4892 and the Testate
Estate of Jose B. Suntay, Special Proceeding No. 4952, which latter case is the subject of the
said alternative petition. The motion for the merger and consolidation of the two cases was
granted on July 3, 1947.
"The oppositor, Federico C. Suntay, in the Testate Proceeding filed a motion to dismiss the
alternative petition on November 14, 1947, which was denied by the court in its resolution of
November 22, 1947. The said oppositor not being satisfied with the ruling of this court denying
the motion to dismiss, filed before the Supreme Court a petition for a writ of certiorari with
preliminary injunction, which was dismissed for lack of merit on January 27, 1948.

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"In obedience to the decision of the Supreme Court (Exhibit O) and upon the alternative
petition of Silvino Suntay, and, further, upon the dismissal of the petition for a writ of certiorari
with preliminary injunction, the court was constrained to proceed with the hearing of the
probate of the lost will, the draft of which is Exhibit B, or the admission and recording of the will
which had been probated in Amoy, China.
"The evidence for the petitioner, Silvino Suntay, shows that Jose B. Suntay married twice; first
to Manuela T. Cruz who died on June 15, 1920 and had begotten with her Apolonio, now
deceased, Concepcion, Angel, Manuel, Federico, Ana, Aurora, Emiliano and Jose, Jr., all
surnamed Suntay, and second, to Maria Natividad Lim Billian with whom he had as the only
child Silvino Suntay, the petitioner herein.
"Some time in November 1929, Jose B. Suntay executed his last will and testament in the office
of Atty. Alberto Barretto in Manila, which was witnessed by Alberto Barretto, Manuel Lopez and
Go Toh. The will was prepared by said Alberto Barretto upon the instance of Jose B. Suntay,
and it was written in the Spanish language which was understood and spoken by said testator.
After the due execution of the will, that is signing every page and the attestation clause by the
testator and the witnesses in the presence of each other, the will was placed inside the
envelope (Exhibit A), sealed and on the said envelope the testator and the three subscribing
witnesses also signed, after which it was delivered to Jose B. Suntay.
"A year or so after the execution of the will, Jose B. Suntay together with his second wife Maria
Natividad Lim Billian and Silvino Suntay who was then of tender age went to reside in Amoy,
Fookien, China, where he died on May 14, 1934. The will was entrusted to the widow, Maria
Natividad Lim Billian.
"Upon the death of Jose B. Suntay on May 14, 1934, Apolonio Suntay, the oldest son now
deceased, instituted the Intestate Proceedings No. 4892, upon the presumption that no will
existed. Maria Natividad Lim Billian who remained in Amoy, China, had with her the will and she
engaged the services of the law firm of Barretto and Teodoro for the probate of the will. Upon
the request of the said attorneys the will was brought to the Philippines by Go Toh who was
one of the attesting witnesses, and it was taken to the law office of Barretto and Teodoro. The
law firm of Barretto and Teodoro was composed of Atty. Alberto Barretto and Judge Anastacio
Teodoro. The probate of the will was entrusted to the junior partner Judge Anastacio Teodoro;
and, upon the presentation of the sealed envelope to him, he opened it and examined the said
will preparatory to the filing of the petition for probate. There was a disagreement as to the
fees to be paid by Maria Natividad Lim Billian, and as she (through Go Toh) could not agree to
pay, P20,000 as fees, the will was returned to Go Toh by Judge Anastacio Teodoro after the
latter had kept it in his safe, in his office, for three days.
"Subsequently, the will inside the envelope was snatched from Go Toh by Manuel Suntay and
Jose, Jr., which fact has been established in the decision of the Supreme Court at the beginning
of this decision. Go Toh could recover the envelope (Exhibit A) and the piece of cloth with
which the envelope was wrapped (Exhibit C).
"The Testate Proceeding was filed nevertheless and in lieu of the lost will a draft of the will
(Exhibit B) was presented as secondary evidence for probate. It was disallowed by this court
through Judge Buenaventura Ocampo, but on appeal the Supreme Court remanded the case to
this court for further proceeding (Exhibit C ).
"In the meantime, a Chinese will which was executed in Amoy Fookien, China, on January 4,
1931, by Jose B. Suntay, written in Chinese characters (Exhibit P) was discovered in Amoy,
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China, among the papers left by Jose B. Suntay, and said will had been allowed to probate in
the Amoy District Court, China, which is being also presented by Silvino Suntay for allowance
and recording in this court.
"The said petition is opposed by Federico C. Suntay on the main ground that Maria Natividad
Lim Billian and Silvino Suntay have no more interest in the properties left by Jose B. Suntay,
because they have already sold their respective shares, interests and participations. But such a
ground of opposition is not of moment in the instant case, because the proposition involved
herein in the legalization of the lost will or the allowance and recording of the will which had
been probated in Amoy, China.
"It is now incumbent upon this court to delve into the evidence whether or not Jose B. Suntay,
deceased, left a will (the draft of which is Exhibit B) and another will which was executed and
another will which was executed and probated in Amoy, China.
"There is no longer any doubt that Jose B. Suntay while he was still residing in the Philippines,
had executed a will; such is the conclusion of the Supreme Court in its decision (Exhibit O).
That the will was snatched and it has never been produced in court by those who snatched it,
and consequently considered lost, is also an established fact.
"The contention of the oppositor, Federico C. Suntay, is that the will that was executed by Jose
B. Suntay in the Philippines contained provisions which provided for equal distribution of the
properties among the heirs; hence, the draft (Exhibit B) cannot be considered as secondary
evidence, because it does not provide for equal distribution, but it favors Maria Natividad Lim
Billian and Silvino Suntay. He relies on the testimony of Atty. Alberto Barretto who declared that
the first will which he drafted and reduced into a plain copy was the will that was executed by
Jose B. Suntay and placed inside the envelope (Exhibit A).
"Granting that the first will which Atty. Alberto Barretto had drafted became the will of Jose
B. Suntay and it was snatched by, and, therefore, it had fallen into the hands of,
Manuel Suntay and the brothers of the first marriage, it stands to reason that said
Manuel Suntay and brothers would have been primarily interested in the production of said will
in court, for obvious reasons, namely, that they would have been favored. But it was
suppressed and 'evidence willfully suppressed would be adverse if produced' (Section 69 (e),
Rule 123 of the Rules of Court). The contention, therefore, that the first will which was drafted
by Atty. Barretto was the one placed inside the envelope (Exhibit A) is untenable.
"It might be said in this connection that the draft of the will (Exhibit B) has been admitted by
Atty. Alberto Barretto as identical in substance and form to the second draft which he prepared
in typewriting; it differs only, according to him, in style. He denied that the insertions in long
hand in the said draft are in his own handwriting; however, Judge Anastacio Teodoro averred
that the said insertions are the handwriting of Atty. Alberto Barretto. But when Atty. Alberto
Barretto was asked to show any manuscript of his for purposes of comparison, he declined to
do so alleging that he did not have any document in his possession showing his handwriting
notwithstanding the fact that he was testifying in his own house at 188 Sta. Mesa Boulevard,
Manila. Be further testified that the first will he drafted contained four or five pages, but the
second draft contained twenty-three pages; that he declared in one breath that he did not read
the will any more when it was signed by the testator and the attesting witnesses because it
would take up much time, and in the same breath he declared that he checked it before it was
signed; and that he destroyed the draft of the first will which was in his own handwriting, but
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he delivered the draft of the second will which he prepared to Jose B. Suntay in the presence of
Manuel Lopez, now deceased.

"Whether or not the final plain copy of the draft of the will (Exhibit B) was executed by the
testator, Jose B. Suntay, and attested by the subscribing witnesses, Atty. Alberto Barretto,
Manuel Lopez and Go Toh, is the pivotal point in this instant case. Judge Anastacio Teodoro
testified that he opened the sealed envelope when it was given to him by Go Toh preparatory
to the presentation of the petition for the probate of the said will. As the lawyer entrusted with
that task, he had to examine the will and have it copied to be reproduced or appended to the
petition. He could not do otherwise if he is worth his salt as a good lawyer; he could not
perform the stunt of 'blind flying' in the judicial firmament. Every step must be taken with
certainty and precision under any circumstances. Be could not have talked about the attorney's
fees with Go Toh, unless he has not examined the will beforehand. And, declaring that it was
the exact draft of the will that was inside the envelope (Exhibit A), the testimony of Atty.
Alberto Barretto to the contrary notwithstanding.
"The testimony of Judge Anastacio Teodoro is corroborated by Go Toh, one of the attesting
witnesses, in his deposition (Exhibit D-1).
"Ana Suntay, one of the heirs and who would be affected adversely by the legalization of the
will in question, also testified on rebuttal that she saw the original will in the possession of
Manuel Suntay, immediately after the snatching. She read it and she particularly remembers the
manner in which the properties were to be distributed. Exhibit B was shown to her on the
witness stand and she declared that the provision regarding the distribution of the properties in
said Exhibit B is the same as that contained in the original will. Said testimony of Ana Suntay,
therefore, belies the testimony of Atty. Alberto Barretto.
"With respect to the proof of lost or destroyed will, Section 6 of Rule 77 provides as follows:
'No will shall be proved as a lost or destroyed will unless the execution and validity of the same
be established, and the will is proved to have been in existence at the time of the death of the
testator, or it is shown to have been fraudulently or accidentally destroyed in the lifetime of the
testator without his knowledge, nor unless its provisions are clearly and distinctly proved by at
least two credible witnesses. When a lost will is proved, the provisions thereof must be distinctly
stated and certified by the judge, under the seal of the court, and the certificate must be filed
and recorded as other wills are filed and recorded.'
"Section 8 of the same Rule provides as follows:
'If it appears at the time fixed for the hearing that the subscribing witnesses are dead or insane,
or that none of them resides in the Philippines the court may admit the testimony of other
witnesses to prove the sanity of the testator, and the due execution of the will; and as evidence
of the due execution of the will, it may admit proof of the handwriting of the testator and of the
subscribing witnesses, or any of them.'
"Manuel Lopez as one of the subscribing witnesses is dead. Atty. Alberto Barretto and Go Toh
are still living. The former testified during the hearing, while Go Toh's deposition was introduced
in evidence which was admitted. In the absence of the testimony of Manuel Lopez, deceased,
the testimony of Judge Anastacio Teodoro and Ana Suntay was received.

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"It is an established fact that the will, draft of which is Exhibit B, was lost or destroyed; that it
was executed and valid and that it existed at the time of the death of Jose B. Suntay. These
circumstances also apply to the will (Exhibit P) which was executed in Amoy, China.
"The contents of the Chinese will is substantially the same as the draft (Exhibit B). Granting that
the will executed in the Philippines is non-existent as contended by the oppositor, although the
findings of this court is otherwise, the will executed and probated in China should be allowed
and recorded in this court. All the formalities of the law in China had been followed in its
execution, on account of which it was duly probated in the Amoy District Court. There is no
cogent reason, therefore, why it should not be admitted and recorded in this jurisdiction.
"The said will (Exhibit P) in Chinese characters is presented as an alternate in case the will
executed in the Philippines would not be allowed to probate, or as a corroborative evidence that
the will, the draft of which is Exhibit B, has been duly executed in the Philippines by Jose
B. Suntay.
"Rule 78 of the Rules of Court covers the allowance of will proved outside of the Philippines and
administration of estate thereunder.
"Section 1 of said rule provides:
'Wills proved and allowed in the United States, or any state or territory thereof, or in foreign
country, according to the laws of such state, territory, or country, may be allowed, filed, and
recorded by the proper Court of First Instance in the Philippines.'
"Section 2 of the same rule provides:
'When a copy of such will and the allowance thereof, duly authenticated, is filed with a petition
for allowance in the Philippines, by the executor or other person interested, in the court having
jurisdiction, such court shall fix a time and place for the hearing, and cause notice thereof to be
given as in case of an original will presented for allowance.'
"This court has delved deep into the evidence adduced during the hearing with that penetrating
scrutiny in order to discover the real facts; it has used unsparingly the judicial scapel; and it has
winnowed the evidenced to separate the grain from the chaff. All the facts lead to the inevitable
conclusion that Jose B.Suntay, in his sound and disposing mind and not acting under duress or
undue influence, executed the will which is lost, the draft of which is Exhibit B, with all the
necessary formalities prescribed by law. He, likewise, executed the second will (Exhibit P) in
Amoy, China, which has been duly probated in Amoy District Court, a corroborative evidence
that the testator really executed the will. Copies of the said wills duly certified and under the
seal of the court are appended hereto, marked Exhibits B and P, and they form part of this
decision.
"In view of the foregoing considerations, the court is of the opinion and so declares that the
draft of the will (Exhibit B) is, to all legal intents and purposes, and testament of the deceased
Jose B. Suntay. With costs against the oppositor, Federico C. Suntay."
Oppositor Federico C. Suntay filed on May 20, 1948, a motion for new trial and to set aside the
decision rendered on April 19, 1948, to which the petitioner filed an opposition, followed by a
reply filed by the oppositor and an answer on the part of the petitioner. Without reopening the
case and receiving any new or additional evidence, the Court of First Instance of Bulacan, on
September 29, 1948, promulgated the following resolution setting aside his first decision and
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disallowing the wills sought to be probated by the petitioner in his alterative petition filed on
June 18, 1947:
"This is a motion for new trial and to set aside the decision legalizing the will of Jose
B. Suntay and allowing and recording another will executed by him in Amoy, China.
"By virtue of this motion, this court is constrained to go over the evidence and the law
applicable thereto with the view of ascertaining whether or not the motion is well founded. Both
parties have presented extensive memoranda in support of their respective contentions.
"This court has gone over the evidence conscientiously, and it reiterates its findings of the same
facts in this resolution, whether or not the facts established by the petitioner, Silvino Suntay,
warrant the legalization of the lost will and the allowance and recording of the will that was
executed in Amoy, China, is therefore, the subject of this instant motion.

"A. As to the legalization of the Lost Will. There is no question in the mind of this court that
the original will which Jose B. Suntay, deceased executed in the Philippines in the year 1929
was lost (Exhibit O, Decision of the Supreme Court). The evidence adduced by the petitioner
during the hearing has established through the testimony of Judge Anastacio Teodoro and that
of Go Toh (an attesting witness) that the will was executed by Jose B. Suntay, deceased, with
all the formalities required by law. For the purpose of legalizing an original and existing will, the
evidence on record is sufficient as to the execution and attesting in the manner required by law.
"Section 8 of Pule 77 provides as follows:
'SEC. 8. Proof when witnesses dead or insane or do not reside in the Philippines. If it appears
at the time fixed for the hearing that the subscribing witnesses are dead or insane, or that none
of them resides in the Philippines, the court may admit the testimony of other witnesses to
prove the sanity of the testator, and the due execution of the will; and as evidence of the
execution of the will, may admit proof of the handwriting of the testator and of the subscribing
witnesses, or any of them.'
"Section 11 of said rule also provides as follows:
'SEC. 11. Subscribing witnesses produced or accounted for where contest. If the will is
contested, all the subscribing witnesses 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 the subscribing witnesses are present in the
Philippines, but outside the province where the will has been filed, their deposition must be
taken. If all or some of the subscribing witnesses produced and examined 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 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."

"The three attesting witnesses were Manuel Lopez, deceased Alberto Barretto and Go Toh. The
last two witnesses are still living; the former testified against and the latter in favor. In other
words, the attesting witness, Go Toh, only, testified in his deposition in favor of the due
execution of the will. Hence, the petitioner presented another witness, Judge Anastacio
Teodoro, to establish and prove the due execution of the said will. Ana Suntay was also
presented as a witness in rebuttal evidence. The testimony of Go Toh in his deposition as an
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attesting witness, coupled with the testimony of Judge Anastacio Teodoro who was able to
examine the original will that was executed by Jose B. Suntay, deceased, when it was given to
him by Go Toh for the purpose of filing the petition in court for its legalization, and could
recognize the signatures of the testator as well as of the three attesting witnesses on the said
original will is sufficient to convince the court that the original will was executed by the
deceased Jose B. Suntay with all the formalities required by law. The original will, therefore, if it
was presented in court to probate would be allowed to all legal intents and purposes. But it was
not the original will that was presented, because it was lost, but an alleged draft (Exhibit B) of
the said original will which does not bear the signature of the testator and any of the attesting
witness. The original will was duly executed with all the formalities required by law, but it was
unfortunately lost; and the curtain falls for the next setting.
"The Court is now confronted with the legalization of the lost will whether or not the draft
(Exhibit B) should be admitted as secondary evidence in lieu of the lost will and allowed to
probate.
"Section 6 of Rule 77 provides as follows:
'SEC. 6. Proof of lost or destroyed will Certificate thereupon. No will shall be proved as a
lost will or destroyed will unless the execution and validity of the same be established, and the
will is proved to have been in existence at the time of the death of the testator, or is shown to
have been fraudulently or accidentally destroyed in the lifetime of the testator without his
knowledge, nor unless its provisions are clearly and distinctly proved by at least two credible
witnesses. When a lost will is proved, the provisions thereof must be distinctly stated and
certified by the Judge, under the seal of the court and the certificate must be filed and recorded
as other wills are filed and recorded.' (Emphasis Court's)

"From the above quoted provision of the law, it is clear that the petitioner should not only
establish the execution and validity of the will, its existence at the time of the death of the
testator or its fraudulent and accidental destruction in the lifetime of the testator without his
knowledge, but also must prove its provisions clearly and distinctly by at least two credible
witnesses. The exact language of the clause in the above quoted provision of the law is 'nor
unless its provisions are clearly and distinctly proved by at least two credible witnesses.' The
legalization of a lost will is not so easy, therefore, as that of an original will. The question,
therefore, is boiled down to, and projected on the screen, in a very sharp focus; namely, the
execution and validity must be established and the provisions must be clearly and distinctly
proved by at least credible witnesses.
"Granting that the execution and validity of the lost will have been established through the
testimony of Judge Anastacio Teodoro and Go Toh, and perhaps superficially by the rebuttal
witness, Ana Suntay, does it follow that the provisions of the lost will have been clearly and
distinctly proved by at least two credible witnesses? A careful review of the evidence has
revealed that at most the only credible witness who testified as to the provisions of the will was
Judge Anastacio Teodoro, and yet he testified on the provisions of the lost will with the draft
(Exhibit B) in his hands while testifying. It may be granted, however, that with or without the
draft of the will (Exhibit B) in his hands, he could have testified clearly and distinctly on the
provisions of the said lost will, because he had kept the will in his safe, in his office, for three
days, after opening it, and he is well versed in Spanish language in which the will as written.
But did the attesting witness Go Toh, testify in his deposition and prove clearly and distinctly
the provisions of the lost will? He did not, and he could not have done so even if he tried
because the original will was not read to him nor by him before or at the signing of the same. It
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was written in Spanish and he did not and does not understand the Spanish language. Neither
was there any occasion for him to have the contents of the said will, after its execution and
sealing inside the envelope (Exhibit A), read to him because it was opened only when Judge
Teodoro had examined it and then subsequently snatched from Go Toh. Ana Suntay on rebuttal
did not, likewise, prove clearly and distinctly the provisions of the said lost will because she has
not had enough schooling and she does possess adequate knowledge of the Spanish language
as shown by the fact that she had to testify in Tagalog on the witness stand.
"It is evident, therefore, that although the petitioner has established the execution and validity
of the lost will, yet he has not proved clearly and distinctly the provisions of the will by at least
two credible witnesses.
"B. As to the Allowance and Recording of the will Executed in Amoy, China. Jose B. Suntay,
while he was residing in China during the remaining years of his life, executed also a will,
written in Chinese characters, the translation of which is marked Exhibit P. It was allowed to
probate in the District Court of Amoy, China. The question is whether or not the said will should
be allowed and recorded in this jurisdiction.
"Section 1 of Rule 78 provides as follows:
'SEC. 1. Will proved outside Philippines may be allowed here. Will proved and allowed in the
United States, or any state or territory thereof, or in a foreign country, according to the laws of
such state, territory, or country, may be allowed, filed, and recorded by the proper court of First
Instance in the Philippines.'
"Section 2 of the same Rule also provides:
'SEC. 2. Notice of Hearing for allowance. When a copy of such will and the allowance thereof,
duly authenticated, is filed with a petition for allowance in the Philippines by the executor or
other person interested, in the Court having jurisdiction, such court shall fix a time and place for
the hearing, and cause notice thereof to be given as in case of an original will presented for
allowance.'
"Sections 41 and 42 of Rule 123 provides as follows:
'SEC. 41. Proof of Public or official record. An official record or an entry therein, when
admissible for any purpose, may be evidenced by an official publication thereof or by a copy
attested by the officer having the legal custody of the record, or by his deputy, and
accompanied, if the record is not kept in the Philippines, with a certificate that such officer has
the custody. If the office in which the record is kept is within the United States or its territory,
the certificate may be made by a judge of a court of record of the district or political subdivision
in which the record is kept, authenticated by the seal of the court, or may be made by any
public officer having a seal of the office and having official duties in the district or political
subdivision in which the record is kept, authenticated by the seal of his office. In the office in
which the record is kept is in a foreign country, the certificate may be made by a secretary of
embassy or legation, consul general, consul, vice consul, or consular agent or by any officer in
the foreign service of the United States stationed in the foreign country in which the record is
kept, and authenticated by the seal of his office.'
'SEC. 42. What attestation of copy must state. Whenever a copy of writing is attested for the
purpose of evidence, the attestation must state, in substance, that the copy is a correct copy of
the original, or a specific part thereof, as the case may be. The attestation must be under the
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official seal of the attesting officer, if there be any, or if he be the clerk of a court having a seal,
under the seal of such court.'
"In the case of Yu Changco vs. Tiaoqui, 11 Phil. 598, 599, 600, our Supreme Court said:
'Section 637 of the Code of Civil Procedure says that wills proved and allowed in a foreign
country, according to the laws of such country, may be allowed, filed, and recorded in the Court
of First Instance of the province in which the testator has real or personal estate on which such
will may operate; but section 638 requires that the proof of the authenticity of a will executed
in a foreign country must be duly "authenticated". Such authentication, considered as a foreign
judicial record, is prescribed by section 304, which requires the attestation of the clerk or of the
legal keeper of the records with the seal of the court annexed, if there be a seal, together with
a certificate of the chief judge or presiding magistrate that the signature of either of the
functionaries attesting the will is genuine, and, finally, the certification of the authenticity of the
signature of such judge or presiding magistrate, by the ambassador, minister, consul, vice
consul or consular agent of the United States in such foreign country. And, should the will be
considered, from an administrative point of view, as a mere official document "of a foreign
country", it may be proved, "by the original, or by a copy certified by the legal keeper thereof,
with a certificate, under the seal of the country or sovereign, that the document is a valid and
subsisting document of such country, and that the copy is duly certified by the officer having
the legal custody of the original". (Sec. 313, par. 8).'

"In the case of Fluemer vs. Hix, 54 Phil. 610, 611, 612, and 613, our Supreme Court said:
'It is the theory of the petitioner that the alleged will was executed in Elkins, West Virginia, on
November 3, 1925, by Hix who had his residence in that jurisdiction, and that the laws of West
Virginia govern. To this end, there was submitted a copy of section 3868 of Acts 1882, c. 84 as
found in West Virginia Code, Annotated, by Hogg, Charles E., Vol. 2, 1914, p. 1690, and as
certified to by the Director of the National Library. But this was far from compliance with the
law. The laws of a foreign jurisdiction do not prove themselves in our courts. The courts of the
Philippine Islands are not authorized to take judicial notice of the laws of the various States of
the American Union. Such laws must be proved as facts. (In re Estate of Johnson (1918), 39
Phil., 156.) Here the requirements of the law were not met. There was no showing that the
book from which an extract was taken was printed or published under the authority of the State
of West Virginia, as provided in section 300 of the Code of Civil Procedure. Nor was the extract
from the law attested by the certificate of the officer having charge of the original under the
seal of the State of West Virginia, as provided in section 301 of the Code of Civil Procedure. No
evidence was introduced to show that the extract from the laws of West Virginia was in force at
the time the alleged will was executed.
'It was also necessary for the petitioner to prove that the testator had his domicile in West
Virginia and not in the Philippine Islands. The only evidence introduced to establish this fact
consisted of the recitals in the alleged will and the testimony of the petitioner.
'While the appeal was pending submission in this court, the attorney for the appellant presented
an unverified petition asking the court to accept as part of the evidence the documents
attached to the petition. One of these documents discloses that a paper writing purporting to be
the last will and testament of Edward Randolph Hix, deceased, was presented for probate on
June 8, 1929, to the clerk of Randolph County, State of West Virginia, in vacation, and was duly
proven by the oaths of Dana Vansley and Joseph L. Madden, the subscribing witnesses thereto,
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and ordered to be recorded and filed. It was shown by another document that in vacation, on
June 8, 1929, the clerk of court of Randolph County, West Virginia, appointed Claude E.
Maxwell as administrator, cum testamento annexo, of the estate of Edward Randolph Hix,
deceased . . . However this may be no attempt has been made to comply with the provisions of
sections 637, 638, and 639 of the Code of Civil Procedure, for no hearing on the question of the
allowance of a will said to have been proved and allowed in West Virginia has been requested. .
.'
"Granting that the will of Jose B. Suntay which was executed in Amoy, China, was validly done
in accordance with the law of the Republic of China on the matter, is it necessary to prove in
this jurisdiction the existence of such law in China as a prerequisite to the allowance and
recording of said will? The answer is in the affirmative as enunciated in Fluemer vs. Hix, supra,
and in Yaez de Barnuevo vs. Fuster, 29 Phil., 606. In the latter case, the Supreme Court said:

'A foreign law may be proved by the certificate of the officer having in charge of the original,
under the seal of the state or country. It may also be proved by an official copy of the same
published under the authority of the particular state and purporting to contain such law. (Secs.
300 and 301, Act No. 190.), (Syllabus.)
"The provisions of section 300 and 301 of the Code of Civil Procedure (Act No. 190) are as
follows:
'SEC. 300. Printed laws of the State or Country. Books printed or published under the
authority of the United States, or one of the States of the United States, or a foreign country,
and purporting to contain statutes, codes, or other written law of such State or country or
proved to be commonly admitted in the tribunals of such State or country an evidence of the
written law thereof, are admissible in the Philippine Islands are evidence of such law.'
'SEC. 301. Attested copy of foreign laws. A copy of the written law or other public writing of
any state or country, attested by the certificate of the officer having charge of the original,
under the seal of the state or country, is admissible as evidence of such law or writing.'
"The petitioner has presented in evidence the certification of the Chinese Consul General,
Tsutseng T. Shen, of the existence of the law in China (Exhibit B-3), relative to the execution
and probate of the will executed by Jose B. Suntay in Amoy, China (Exhibit P). Is that evidence
admissible, in view of the provisions of Sections 41 and 42 of the Rules of the Rules of Court. Is
the said certification of the Chinese Consul General in the Philippines a substantial compliance
with the provisions of the above mentioned section 41 and 42 of our Rules of Court?
"This court has its doubts as to the admissibility in evidence of the Chinese Consul General in
the Philippines of the existence of the laws of Republic of China relative to the execution and
probate of a will executed in China. Such law may exist in China, but
'An official record or an entry therein, when admissible for any purpose, may be evidence by an
official publication thereof or by a copy attested by the officer having the legal custody of the
record, or by his deputy, and accompanied, if the record is not kept in the Philippines, with a
certificate that such officer has the custody. . . . If the office in which the record is kept is in a
foreign country, the certificate may be made by a secretary of embassy or legation, consul
general, consul, vice consul, or consular agent or by any officer in the foreign service of the
United States stationed in the foreign country in which the record is kept, and authenticated by
the seal of his office.' (Sec. 41 of Rule 123.)
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"The law of the Republic of China is a public or official record and it must be proved in this
jurisdiction through the means prescribed by our Rules of Court. It is, therefore, obvious that
the Chinese Consul General in the Philippines who certified as to the existence of such law is
not the officer having the legal custody of the record, nor is he a deputy of such officer. And, if
the office in which the record is kept is in a foreign country, the certificate may be made by a
secretary of embassy or legation, consul general, consul, vice consul, or consular agent or by
any officer in the foreign service of the United States stationed in the foreign country in which
the record is kept, and authenticated by the seal of his office.
It is clear, therefore, that the above provisions of the Rules of Court (Rule 123, sec 41) not
having been complied with, the doubt of this court has been dissipated, and it is of the opinion
and so holds that the certification of the Chinese Consul General alone is not admissible as
evidence in the jurisdiction.

"The evidence of record is not clear as to whether Jose B. Suntay, who was born in China, but
resided in the Philippines for a long time, has become a Filipino citizen by naturalization, or he
remained a citizen of the Republic of China. The record does not, likewise, show with certainty
whether or not he had changed his permanent domicile from the Philippines to Amoy, China.
His change of permanent domicile could only be inferred. But the question of his permanent
domicile pales into insignificance in view of the overtowering fact that the law of China
pertinent to the allowance and recording of the said will in this jurisdiction has been
satisfactorily established by the petitioner.
"Both the petitioner and the oppositor have extensively urged in their respective memorandum
and in the oral argument in behalf of the oppositor the question of estoppel. The consideration
of the points raised by them would open the door to the appreciation of the intrinsic validity of
the provisions of the will which is not of moment at the present stage of the proceeding. While
the probate of a will is conclusive as to the compliance with all formal requisites necessary to
the lawful execution of the will, such probate does not affect the intrinsic validity of the
provisions of the will. With respect to the latter the will is governed by the substantive law
relative to descent and distribution. (In re Johnson, 39 Phil., 157).
"IN VIEW OF THE FOREGOING, and upon reconsideration, the previous decision rendered in
this case allowing the will (Exhibit B) and allowing and recording the foreign will (Exhibit P) is
set aside; and this court is of the opinion and so holds that the said two wills should be, as they
are hereby disallowed. Without special pronouncement as to costs."
It is very significant that in the foregoing resolution, the Court of First Instance of Bulacan
"reiterates its finding of the same facts in this resolution," and merely proceeds to pose the sole
question "whether or not the facts established by the petitioner, Silvino Suntay, warrant the
legalization of the lost will and allowance and recording of the will that was executed in Amoy,
China." The somersault executed by the trial court is premised on the ground that "although the
petitioner has established the execution and validity of the lost will, yet he has not proved
clearly and distinctly the provisions of the will by at least two credible witnesses"; and that,
assuming that the will of Jose B. Suntay executed in Amoy, China, was in accordance with the
law of the Republic of China, the certification of the Chinese Consul General in the Philippines
as the existence of such law is not admissible evidence in this jurisdiction. In effect the
resolution on the motion for reconsideration promulgated by the trial court, and the decision of
the majority herein, adopt the position that the testimony of Judge Anastacio Teodoro as to the
provisions of the lost will, while credible and perhaps sufficient in extent, is not corroborated by
the witnesses Go Toh and Ana Suntay and, therefore, falls short of the requirement in section
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6, Rule 77, of the Rules of Court that the provisions of the lost will must be "clearly and
distinctly proved by at least two witnesses." That this requirement was obviously construed to
mean that the exact provisions are to be established, may be deduced from the following
dialogue between his Honor, Judge Potenciano Pecson, and Attorney Teofilo Sison, new counsel
for oppositor Federico C. Suntay, who appeared for the first time at the ex parte hearing of
oppositor's motion for new trial on September 1, 1949:

"COURT: However, Rule 77, Section 6, provides in proving a lost will, the provisions of the lost
will must be distinctly stated and certified by the Judge.
"ATTY. TEOFILO SISON: Yes, Your Honor.
"COURT: That presupposes that the judge could only certify to the exact provisions of the will
from the evidence presented.
"ATTY. TEOFILO SISON: That is our contention, provided that provision is clearly established by
two credible witnesses so that the Court could state that in the decision, we agree, that is the
very point.
(t. s. n. 75, Session of Sept. 1, 1948)"
The sound rule, however, as we have found it to be, as to the degree of proof required to
establish the contents of a lost or destroyed will, is that there is sufficient compliance if two
witnesses have substantiated the provisions affecting the disposition of the testator's
properties; and this is especially necessary to prevent the "perpetration of fraud by permitting a
presumption to supply the suppressed proof," to keep a wrong-doer from utilizing the rule as
his "most effective weapon," or to avoid the enjoyment of a "premium from the rascality of one
whose interests might suggest the destruction of a will."
"Section 1865 of the Code requires that the provisions of a lost will must be clearly and
distinctly proved by at least two credible witnesses before it can be admitted to probate; but
this section must receive a liberal construction (Hook vs. Pratt, 8 Hun. 102-109) and its spirit is
complied with by holding that it applies only to those provisions which affect the disposition of
the testator's property and which are of the substance of the will."
"The allegations of the contents of the will are general, and under ordinary circumstances,
would be in sufficient; but the fact alleged, if proven as alleged, would certainly authorize the
establishment of the will so far as its bequests are concerned. To require that a copy of the will
or the language of the bequests, in detail, should be pleaded, where no copy has been
preserved, and where the memory of the witnesses does not hold the exact words, would not
only deny the substance for mere form, but would offer a premium upon the rascality of one
whose interests might suggest the destruction of a will. As said in Anderson vs. Irwin, 101 Ill.
411: 'The instrument in controversy having been destroyed without the fault of the defendant in
error . . . and there not appearing to be any copy of it in existence, it would be equivalent to

denying the complainant relief altogether to require her to prove the very terms in which it was
conceived. All that could reasonably be required of her under the circumstances could be to
show in general terms the disposition which the testator made of his property by the
instruments; that it purported to be his will and was duly attested by the requisite number of
witnesses.' In Allison vs. Allison, 7 Dana 91, it was said in speaking of the character and extent
of proof required in such a case:' nor is there any just ground to object to the proof because
the witnesses have not given the language of the will or the substance thereof. They have
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given the substance of the different devises as to the property or interest devised, and to whom
devised and we would not stop, in the case of a destroyed will, to scan with rigid scrutiny the
form of the proof, provided we are satisfied of the substance of its provisions.' " (Joses vs.
Casler 139 Ind. 392, 38 N. E. 812).
"The evidence in the case falls short of establishing the existence of such a writing, except as it
may be presumed, under the maxim Omnia presaumuntur in odium spoliateris." There was
evidence tending to show that the second will of Anne Lambie was in the possession of Francis
Lambie, and that it came to the hands of the proponents, warranting the inference that it has
been suppressed or destroyed. If from this evidence the jury found such paper destroyed the
law permits the presumption that it was legally drawn and executed, notwithstanding the terms
of the statute, which requires the revoking instrument to be formally executed. If a will be lost,

secondary evidence may be given of its contents; if suppressed or destroyed, the same is true;
and, if necessary the law will prevent the perpetration of a fraud by permitting a presumption to
supply the suppressed proof. We cannot assent to the proposition that the statute is so right as
to be the wrong-doer's most effective weapon. The misconduct once established to the
satisfaction of the jury, it is no hardship to the wrongdoer to say. 'Produce the evidence in your
possession, or we will presume that your opponent's contention is true.' When one deliberately
destroys, or purposely induces another to destroy, a written instrument subsequently become a
matter of judicial inquiry between the spoliator and an innocent party, the latter will not be
required to make strict proof of the contents of such instrument in order to establish a right
founded thereon. Brook, Leg. Max. 676, Preston vs. Preston, 132, Atl. 55, 61. (Re Lambie's
Estate, 97 Mich. 55, 56 N. W. 225)"
Judged from the standard set forth in the foregoing authorities, and bearing in mind that the
circumstances of this case lead to the only conclusion that the loss of the will in question is of
course imputable to those whose interests are adverse to the petitioner and the widow Lim
Billian, we have no hesitancy in holding the view that the dispositions of the properties left by
the deceased Jose B. Suntay as provided in his will which was lost or snatched in the manner
recited in the decision of this Court in the case of Lim Billian vs. Suntay, 63 Phil., 798-797, had
been more than sufficiently proved by the testimony of Judge Anastacio Teodoro, Go Toh, and
Ana Suntay, supported conclusively by the draft of the lost will presented in evidence as Exhibit
"B", and even by the testimony of oppositor Federico C. Suntay himself.
It is to be recalled that the trial Judge, in his first decision of April 19, 1948, made the following
express findings with respect to the testimony of Judge Teodoro: "Judge Anastacio Teodoro
testified that he opened the sealed envelope when it was given to him by Go Toh preparatory
to the presentation of the petition for the probate of the said will. As the lawyer entrusted with
that task, he had to examine the will and have it copied to be reproduced or appended to the
petition. He could not do otherwise if he is worth his salt as a good lawyer. He could not
perform the stunt of 'blind flying' in the judicial firmament. Every step must be taken with
certainty and precision under any circumstances. He could not have talked about the attorney's
fees with Go Toh, unless he has not examined the will beforehand. And, when he was shown
Exhibit B, he did not hesitate in declaring that it was the exact draft of the will that was inside
the envelope (Exhibit A), the testimony of Atty. Alberto Barretto to the contrary
notwithstanding."
We should not forget, in this connection, that in the resolution on the motion for
reconsideration the trial Judge reiterated the findings in his decision, although as regards the
testimony of Judge Teodoro admittedly "the only credible witness who testified as to the
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provisions of the will," he observed that Judge Teodoro had the draft Exhibit "B" in his hands
while testifying. We cannot see any justification for the observation, assuming that Judge
Teodoro consulted the draft, since even the trial Judge granted that he "could have testified
clearly and distinctly on the provisions of the said lost will, because he had kept the will in his
safe, in his office, for three days, after opening it, and he is well versed in Spanish language in
which the will was written." As a matter of fact, however, it is not true that Judge Teodoro had
the draft in question before him while testifying as may be seen from the following passages of
the transcript:
"Q. And, have you read that will which was inside this envelope, Exhibit A? "A. Yes.
"Q. Do you remember more or less the contents of the will?
"ATTY. FERRIN: With our objection, the best evidence is original will itself, Your Honor.

"ATTY. RECTO: We are precisely proving by means of secondary evidence, the contents of the
will, because according to the Supreme Court, and that is a fact already decided, that the will of
Jose B. Suntay was lost and that is res judicata.
"Court: Witness may answer.
"WITNESS: I remember the main features of the will because as I said I was the one fighting
for the postponement of the hearing of the intestate case because I was asked by Don Alberto
Barretto to secure the postponement until the will that was executed by the deceased is sent
here by the widow from China, with whom we communicated with several letters, and when the
will arrived I had to check the facts as appearing in the will, and examined fully in connection
with the facts alleged in the intestate, and there was a striking fact in the intestate that
Apolonio Suntay has.
"ATTY. FERRIN: (Interrupting) May we ask that the witness answer categorically the questions
of Atty. Recto, it seems that the answers of the witness are kilometric . . .
"ATTY. RECTO: Sometimes the question cannot be answered fully unless the witness would
relate and give all the facts.
"COURT: The Attorney for the Administrator may move for the striking out of any testimony
that is not responsive to the question.
"ATTY. FERRIN: That is why, our objection, the answer is out of the question.
"COURT: Atty. Recto may propound another question.

"ATTY. RECTO: I heard the witness was saying something and he has not finished the
sentence, and I want to ask the Court just to allow the witness to finish his sentence.
"COURT: You may finish.
"WITNESS: "A. There was a sentence, the point I was trying to check first was whether the
value of the estate left by the deceased was SIXTY THOUSAND PESOS (P60,000.00) as
Apolonio Suntay made it appear in his petition, and when I looked at the original will, I found
out that it was several hundred thousand pesos, several thousands of pesos, hundreds of
pesos, that was very striking fact to me because the petition for intestate was for SIXTY
THOUSAND PESOS (P60,000.00), and I came to know that it was worth more than SEVEN
HUNDRED THOUSAND (P700,000.00) PESOS.
156

"Q. Do you remember, Judge, the disposition of the will, the main disposition of the will? "A.
Yes, because our client were the widow, Maria Natividad Lim Billian, and his son, Silvino, the
only son in the second marriage, that was very important for me to know.
"Q. How were the properties distributed according to that will? A. The properties were
distributed into three (3) parts, one part which we call legitima corta, were equally distributed
to the ten (10) children, nine (9) in the first marriage, and one (1) in the second marriage with
Maria Natividad Lim Billian. The other third, the betterment was given to four (4) children,
Concepcion, and Apolonio getting a quite substantial share in the betterment, around SIXTY
THOUSAND (P60,000.00) for Concepcion, Apolonio the the amount of SEVENTY THOUSAND
(70,000.00) PESOS or little over, and then about ONE HUNDRED THOUSAND (P100,000.00)
PESOS of the betterment in favor of Silvino, the minor of the second marriage, and to Jose
equal to Concepcion.
"Q. So the betterment, as I understand from you went to four (4) children 7. "A. Yes.
"Q. Silvino in the second marriage, Concepcion, Apolonio and Jose in the first marriage? "A.
Yes.
"Q. What about the free disposal? "A. The free disposal was disposed in favor of the widow,
Maria Natividad Lim Billian and Silvino, his minor son in equal parts.
"Q. What about if you remember, if there was something in the will in connection with that
particular of the usufruct of the widow? "A. It was somewhat incorporated into the assets of
the estate left by the deceased.

"Q. Do you remember the number of pages of which that will consisted? "A. Twenty-three
(23) pages.
"Q. Do you remember if the pages were signed by the testator? "A. Yes, sir, it was signed.
"Q. And the foot of the testament or the end of the testament, was it signed by the testator?
"A. Yes, sir, and the attestation clause was the last page signed by the three instrumental
witnesses, Alberto Barretto, one Chinaman Go Toh, and Manuel Lopez, my former Justice of the
Peace of Hagonoy.
"Q. Do you remember if these witnesses signed on the different pages of the will? "A. Yes,
sir, they signed with their name signatures."
"Q. Showing you this document consisting of twenty-three (23) pages in Spanish and which
document appears already attached to this same testamentary proceedings and already marked
as EXHIBIT B, will you please tell the Court if and for instance on page eight (8) of this
document, pagina octavo, it says, there are handwritings in pencil, some of which read as
follows: 'Los cinco octavos (5/8) partes corresponds a mi hijo Emiliano', can you recognize
whose handwriting is that? "A. From my best estimate it is the handwriting of Don Alberto
Barretto.
"Q. About the end of the same page eight (8) pagina octavo, of the same document Exhibit B,
there is also the handwriting in pencil which reads: 'La otra sexta parte (6.a) corresponde a
Bonifacio Lopez', can you recognize that handwriting? "A. Yes, sir, this is the handwriting of
Don Alberto Barretto, and I wish to call the attention of the Court to compare letter "B" which is
157

in capital letter with the signature of Don Alberto Barretto in the envelope, 'Alberto Barretto'
and stroke identifies one hand as having written those words.
"Q. Will you please go over cursorily this document, Exhibit B composed of twenty-three (23)

pages and please tell the Court if this document had anything to do with the will which
according to you was contained in the envelope, Exhibit A? "A. This is exactly the contents of
the original will which I received and kept in my office inside the safe for three (3) days, and I
precisely took special care in the credits left by the deceased, and I remember among them,
were the De Leon family, and Sandiko, well known to me, and then the disposition of the
estate, divided into three (3) equal parts, and I noticed that they are the contents of the will
read."
His Honor, Judge Pecson, was positive in his first decision that "the testimony of Judge
Anastacio Teodoro is corroborated by Go Toh, one of the attesting witnesses, in his deposition
(Exhibit D-1)." Yet in setting aside his first decision, he remarked that Go Toh's testimony did
not prove clearly and distinctly the provision of the lost will, because: "He did not, and he could
not have done so even if he tried because the original will was not read to him nor by him
before or at the signing of the same. It was written in Spanish and he did not and does not
understand the Spanish language. Neither was there any occasion for him to have the contents
of the said will, after its execution and sealing inside the envelope (Exhibit A), read to him,
because it was opened only when Judge Teodoro had examined it and then subsequently
snatched from Go Toh."
The later position thus taken by Judge Pecson is palpably inconsistent with the following
unequivocal statements of Go Toh contained in his desposition taken in Amoy, China, on April
17, 1938, and in opositor's Exhibit "6":

"26. State what you know of the contents of that will. ". . . Regarding (1) expenditures (2)
Philippine citizenship; (3) Distribution of estates among children (4) Taking care of grave lot;
(5) guardianship of Silvino Suntay and (6) after paying his debts he will have approximately
720,000 pesos left. This amount will be divided into three equal parte of 240,000 parts each.
The first part is to be divided equally among the ten children born by the first and second wives
and the second part among the three sons Silvino Suntay, 75,000 approximately;
Apolonio Suntay, 50,000 pesos approximately; Jose Suntay and Concepcion Suntay, 36,000
each approximately. The third part is to be divided between Maria Lim Billian and
Silvino Suntay; each will get approximately 110,000 pesos. Silvino Suntay will get a total of
210,000 pesos approximately, Maria Natividad Lim Billian a total of 290,000 approximately, and
Apolonio Suntay a total of 80,000 approximately, Concepcion Suntay and Jose Suntaywill get
60,000 pesos each approximately. The rest of the children will get approximately 29,000 each.
The way of distribution of the property of Jose B. Suntay, movable and immovable, and the
outstanding debts to be collected was arranged by Jose B. Suntay."
xxx xxx xxx
"78. On the occasion of the execution of the testament of Jose B. Suntay, state whether or not
you say Exhibit B . . . Yes.
"79. In the affirmative case, state if you know who had the possession of Exhibit B and the
testament the first time you saw them on that occasion. . . .Yes, I know who had possession
of them.

158

"80. Can you say whether or not Jose B. Suntay happened to get those documents later on, on
that same occasion? . . . He got them after the execution.
"81. Please name the person who gave those documents to Mr. Suntay. . . . Alberto Barretto
gave the documents to Jose B. Suntay,
"82. Did the person who gave those documents to Suntay say anything to him (Suntay) at the
time of giving them? . . . Yes.
"83. If so what was it that he said, if he said any? . . . He said, 'You had better see if you
went any correction.'
"84. What did Mr. Suntay do after those documents were given to him? . . . Jose
B. Suntay looked at them and then gave one copy to Manuel Lopez for checking.
"85. State whether or not Mr. Suntay gave one of those documents to another man. . . . Yes.
"86. In the affirmative case, can you say which of the two documents was given and who the
men was? . . . Yes he gave Exhibit B to Manuel Lopez.
"87. State whether or not Mr. Suntay said something to the man to whom he gave one of those
documents. . . . Yes.
"88. In the affirmative case can you repeat more or less what Mr. Suntay said to that man? .
. .. Be told him to read it for checking.
"89. State if you know what did the man do with one of those documents given to him. . . .
He took it and read it for checking.
"90. What did in turn Mr. Suntay do with the other one left with him? . . . Jose
B. Suntay looked at the original and checked them.
"91. What was done with those documents later on if there was anything done with them? . .
. After checking, Jose B. Suntay put Exhibit B in his pocket and had the original signed and
executed.
"92. What was done with the testament of Jose B. Suntay after it was signed by the testator
and its witnesses? . . . It was taken away by Jose B. Suntay." (Exhibit D, D-1.).
"Q. Did you know the contents of this envelope? "A. I knew that it was a will.
"Q. But did you know the provisions of the will? "A. It is about the distribution of the
property to the heirs.

"Q. Did you know how the property was distributed according to the will? "A. I know that

more than P500,000 was for the widow and her son, more than P100,000 for the heirs that are
in the family." (Exhibit "6", p. 28).
Q. You stated that you were one of the witnesses to the will and that the will was written in
Spanish. Was it written in typewriting or in handwriting of somebody? "A. That will was
written in typewriting.
"Q. Did you read the contents of that will, or do you know the contents of that will? A. No,
sir, because I do not know Spanish.
"Q. How do you know that it was the will of Jose B. Suntay? "A. Because I was one of the
signers and I saw it." (Exhibit "6", p. 19.)
159

"22. Do you understand the language in which that will was written? . . . I know a little
Spanish."
"23. Do you talk or write that language? I can write and talk a little Spanish." (Exhibits D, D-1.)
As to Ana Suntay's corroborating testimony, Judge Pecson aptly made the following findings:
"Ana Suntay, one of the heirs and who would be affected adversely by the legalization of the
will in question, also testified on rebuttal that she saw the original will in the possession of
Manuel Suntay immediately after the snatching. She read it and she particularly remembers the
manner in which the properties were to be distributed. Exhibit B was shown to her on the
witness stand and she declared that the provision regarding the distribution of the properties in
said Exhibit B is the same as that contained in the original will. Said testimony of Ana Suntay,
therefore, belies the testimony of Atty. Alberto Barretto." And yet in the resolution on the
motion for new trial, the trial Judge had to state that "Ana Suntay on rebuttal did not, likewise,
prove clearly and distinctly the provisions of the said lost will, because she has not had enough
schooling and she does not possess adequate knowledge of the Spanish language as shown by
the fact that she had to testify in Tagalog on the witness stand." The potent error committed by
Judge Pecson in reversing his views as regards Ana's testimony, is revealed readily in the
following portions of the transcript:.

"P. Cuantas paginas tenia aquel documento a que usted se refiere? R. Probablemente seria
mas de veinte (20) paginas.
"P. No serian treinta (30) paginas? "ABOGADO RECTO: La testigo ha contestado ya que mas
de veinte (20).

"JUZGADO: Se estima.
"ABOGADO MEJIA:
"P. Usted personalmente leyo el documento? "R. Yo leyo mi hermano en presencia mia.
"P. La pregunta es, si usted personalmente ha leido el documento? "R. Si, lo he visto.
"P. No solamente le pregunto a usted si Vd. ha visto el testamento sino si usted ha leido
personalmente el testamento? "R. Si la parte de la adjudicacion lo he leido para asegurarme
a que porcion corrasponder a cada uno de nosotros.
"P. Puede usted repetir poco mas o menos esa porcion a que se hacia la distribucion del
alegado testamento? "R. Como ya he declarado, que las propiedades de mi difunto padre se
habian dividido en tres partes, una tercera parte se nos adjudica a nosotros diez (10) hijos en
primeros nupcias y segunda nupcia, la segunda tercera parte los adjudica a la viuda y a Silvino,
y la otra tercera parte se lo adjudica a sus hijos como mejora a Silvino, Apolonio, Concepcion y
Jose.
"P. Eso, tal como usted personalmente lo leyo en el documento? "R. Si Senor.
"P. Quiere usted tener la bondad, seora, de repetir poco mas o menos las palabras en ese
documento que se distribuia las propiedades del defundo padre usted como usted relata aqui?
"ABOGADO RECTO: Objetamos a la pregunta por falta de base, porque elle solamente sa fijo en
la parte como se distribuian las propiedades pero no ha dicho la testigo que ella lo ha puesto de
memoria, ni Vd. ha preguntado en que lenguaja estaba escrito el testamento . .
160

"JUZGADO: Se estima.

"ABOGADO MEJIA:
"P. Sabe usted en que lenguaje estaba redactado el documento que usted leyo personalmente?
"R. En Castellano.
"P. Puede usted repetirnos ahora en Castellano algunas frases o palabras como se hizo la
distribucion en aquel supuesto testamento?
"ABOGADO RECTO: Objecion, por falta de base, uno puede entender el espaol y sin embargo
no podra repetir lo que ha leido, y no se sabe todavia si ha estudiado el espaol bastante hasta
el punto de poder hablarlo.
"JUZGADO: Se estima.

Abogado Mejia.
"P. Usted dijo que estaba puesto en castellano el supuesto testamento que Vda. leyo, usted
poso el castellano? "R. Yo entiendo el castellano, pero no puedo hablar bien.
"P. Usted estudio el castellano en algun colegio? "R. Si, seor, en Sta. Catalina.
"P. Cuantos aos? "R. Nuestros estudios no han sido continuous porque mi padre noe
ingresaba en el colegio y despues nos sacaba para estar afuera, y no era continuo nuestro
estudio.
"P. Pero en total, como cuantos meses o aos estaba usted en el colegio aprendiendo el
castellano? "R. Unos cuatro o cinco aos.

"P. Entonces usted puede leer el castellano con facilidad, senora? "R. Si, castellano sencillo
puedo entender y lo puedo leer.
"P. Usted entiende las preguntas que se le dirigian aqui en castellano sin interpretacion o sin el
interprete? "R. Si, Seor.
"P. Puede usted contestar en castellano? "R. Bueno, pero como usted debe comprender
quisiera asegurarme del significado antes de contestar, por eso quiero que la pregunta se me
traduzca antes. asi puedo contestar debidamente." (t. s. n. pp. 533-534.)
We are really at a loss to understand why, without any change whatsoever in the evidence, the
trial Judge reversed his first decision, particularly when he announced therein that "it is now
incumbent upon this court to delve into the evidence whether or not Jose B. Suntay, deceased,
left a will (the draft of which is Exhibit B) and another will which was executed and probated in
Amoy, China." His action is indeed surprising when we take into account the various
circumstantial features presently to be stated, that clearly confirm the testimony of Judge
Anastacio Teodoro, Go Toh and Ana Suntay, or otherwise constitute visible indicia of oppositor's
desire to frustrate the wishes of his father, Jose B. Suntay.
In our opinion the most important piece of evidence in favor of the petitioner's case is the draft
of the lost will, Exhibit "B." Its authenticity cannot be seriously questioned, because according
to the trial Judge himself, oppositor's own witness, Atty. Alberto Barretto, admitted it to be
"identical in substance and form to the second draft which he prepared in typewriting." Indeed,
all the "A's" and "B's" in the handwritten insertions on the draft are very similar to those in
Barretto's admittedly genuine signature on the envelope, Exhibit "A." The finding of Judge
161

Pecson on the point in his first decision (reiterated expressly in the resolution on the motion for
new trial), should control, not only because it is in accordance with the evidence but because
the oppositor had failed and did not even attempt to have the trial Judge reconsider or reverse
his factual conclusions. The draft, Exhibit "B," having been positively identified by the witnesses
for the petitioner to be an exact copy of the lost will of Jose B.Suntay, is therefore conclusive.
Oppositor's effort to show that said draft was never signed in final form, and was thought of
merely to deceive petitioner's mother, Lim Billian, and that the will actually executed and put in
the envelope, Exhibit "A", provided that the testator's estate would be divided equally among
his heirs, as in the case of intestacy, was necessarily futile because, if this allegation is true, the
will would not have been "snatched" from Go Toh and the loss certainly cannot be imputed
to the widow Lim Billian or the petitioner; the snatched will would have been produced to put
an end to petitioner's and his mother's claim for greater inheritance or participation under the
lost will; and the envelope containing the first will providing for equal shares, would not have
been entrusted to the care and custody of the widow Lim Billian.
It is very noteworthy that out of the nine children of the first marriage, only Angel, Jose and
Federico Suntay had opposed the probate of the will in question; the rest, namely, Ana, Aurora,
Concepcion, Lourdes, Manuel and Emiliano Suntay, having expressly manifested in their answer
that they had no opposition thereto, since the petitioner's alternative petition "seeks only to put
into effect the testamentary disposition and wishes of their late father." This attitude is
significantly an indication of the justness of petitioner's claim, because it would have been to
their greater advantage if they had sided with oppositor Federico Suntay in his theory of equal
inheritance for all the children of Jose B. Suntay. Under the lost will or its draft Exhibit "B", each
of the Suntay children would receive only some P25,000.00, whereas in case of intestacy or
under the alleged will providing for equal shares, each of them would receive some
P100,000.00. And yet the Suntay children other than Angel, Jose and Federico had chosen to
give their conformity to the alternative petition in this case.
Another unequivocal confirmation of the lost will is the will which Jose B. Suntay executed in
Amoy, Fookien, China, on January 4, 1931, and probated in Amoy District Court, China,
containing virtually the same provisions as those in the draft Exhibit "B". What better evidence
is there of an man's desire or insistence to express his last wishes than the execution of a will
reiterating the same provisions contained in an earlier w ill. Assuming that the Chinese will
cannot be probated in the jurisdiction, its probative value as corroborating evidence cannot be
ignored.
Oppositor himself had admitted having read the will in question under which the widow Lim
Billian was favored; and this again in a way goes to corroborate the evidence for the petitioner
as to the contents of the will sought to be probated.
"COURT:
"Q. Have you read the supposed will or the alleged will of your father?
"A. Yes, sir.
"COURT:
"Q. Can you tell the court the share or participation in the inheritance of Maria Natividad Lim

Billian according to the will?

162

"A. Yes sir, she will inherit, I think, two-thirds (2/3) of the estate, in other words she is the
most favored in the will, so when they sold that, they sold everything, they are selling
everything even the conjugal property." (t. s. n. 228-229.)
The decision of the majority leans heavily on the testimony of Atty. Alberto Barretto, forgetful
perhaps of the fact that the trial Judge gave no credence to said witness. It should be repeated
that Judge Pecson reiterated in the resolution on the motion for new trial all his findings in the
first decision. If as Atty. Barretto testified, Lim Billian was entitled under the will actually signed
by Jose Suntay only to P10,000.00, in addition to properties in China valued at P15,000.00, the
fees of P25,000.00 admittedly asked by him would absorb her entire inheritance; and this would
normally not be done by any law practitioner. Upon the other hand, there is evidence to the
effect that Atty. Barretto might have become hostile to the petitioner and his mother Lim Billian
in view of the latter's refusal to agree to the amount of P25,000.00 and her offer to pay only
P100.00. There is also evidence tending to show that as early as 1942, Atty. Barretto was paid
by oppositor Federico Suntay the sum of P16,000.00 which, although allegedly for services in
the testate proceedings, was paid out of the personal funds of said oppositors to supply Atty.
Barretto's needs. This circumstances perhaps further explains why the latter had to support the
side of Federico Suntay.
We have quoted in full the decision of this court in the "snatching" case and the first decision of
Judge Pecson in this case, both in the hope and in the belief (1) that the first would reveal the
manner by which those adversely affected had planned to prevent the last wishes of the
deceased Jose B. Suntay from being carried out, and (2) that the second, by the facts correctly
recited therein and by the force and accuracy of its logic would amply show the weakness and
utter lack of foundation of the resolution on the motion for reconsideration. We have set forth
at length pertinent portions of the testimony of various witnesses to demonstrate more plainly
the plausibility of the original decision of Judge Pecson, and the latter's consequent bad
judgment in having forced himself to accomplish a somersault, a feat which the majority, in my
opinion, have mistakenly commended. We have found this to be one of the cases of this court
in which we have had occasion to participate, where there can be absolutely no doubt as to the
result - outright reversal - for which, with due respect to the majority opinion, we vote without
hesitancy.

Montemayor and Jugo, JJ., concur.

RESOLUTION
November 5, 1954
PADILLA, J.:
This is a motion for reconsideration of the decision promulgated on 31 July 1954, affirming the
decree of the Court of First Instance of Bulacan which disallowed the alleged last will and
testament executed in November 1929 and the alleged last will and testament executed in
Kulangsu, Amoy, China, on 4 January 1931, by Jose B. Suntay, without pronouncement as to
costs, on grounds that will presently be taken up and discussed.
Appellant points to an alleged error in the decision where it states that
. . . This petition was denied because of the loss of said will after the filing of the petition and
before the hearing thereof, . . .
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because according to him the "will was lost before not after (the) filing of the petition." This
slight error, if it is an error at all, does not, and cannot, after the conclusions and
pronouncements made in the judgment rendered in the case. In his alternative petition the
appellant alleges:
4. That on October 15, 1934, Maria Natividad Lim Billian, the mother of the herein petitioner
filed a petition in this court for the allowance and probate of a last will and testament executed,
and signed in the Philippines in the year 1929 by said deceased Jose B. Suntay. (P. 3, amended
record on appeal.)
If such last will and testament was already lost or destroyed at the time of the filing of the
petition by Maria Natividad Lim Billian (15 October 1934), the appellant would have so stated
and alleged. If Anastacio Teodoro, a witness for the appellant, is to be believed when he
testified
. . . that one day in November 1934 (p. 273, t. s. n., hearing of 19 January 1948), . . . Go Toh
arrived at his law office in the De los Reyes Building and left an envelope wrapped in red
handkerchief [Exhibit C] (p. 32, t. s. n., hearing of 13 October 1947);. . .
and
If the will was snatched after the delivery thereof by Go Toh to Anastacio Teodoro and returned
by the latter to the former because they could not agree on the amount of fees, . . .
then on 15 October 1934, the date of the filing of the petition, the will was not yet lost. And if
the facts alleged in paragraph 5 of the appellant's alternative petition which states:
That this Honorable Court, after hearing, denied the aforesaid petition for probate filed by Maria
Natividad Lim Billian in view of the loss and/or destruction of said will subsequent to the filing of
said petition and prior to the hearing thereof, and the alleged insufficiency of the evidence
adduced to established the loss and/or destruction of the said will, (Emphasis supplied. P. 3,
amended record on appeal.)
may be relied upon, then the alleged error pointed out by the appellant, if it is an error, is due
to the allegation in said paragraph of his alternative petition. Did the appellant allege the facts
in said paragraph with reckless abandon? Or, did the appellant make the allegation as
erroneously as that which he made in paragraph 10 of the alternative petition that "his will
which was lost and ordered probated by our Supreme Court in G. R. No. 44276, above referred
to?" (P. 7, amended record on appeal.) This Court did not order the probate of the will in said
case because if it did, there would have been no further and subsequent proceedings in the
case after the decision of this Court referred to had been rendered and had become final. Be
that as it may, whether the loss of the will was before or subsequent to the filing of the
petition, as already stated, the fact would not affect in the slightest degree the conclusions and
pronouncements made by this Court.
The appellant advances the postulate that the decision of this Court in the case of Lim Billian
vs. Suntay, G. R. No. 44276, 63 Phil., 793, constitues res judicata on these points: (a) that only
one will was prepared by attorney Baretto, and (b) that the issue to be resolved by the trial
court was whether the draft (Exhibit B) is a true copy or draft of the snatched will, and
contends that these points already adjudged were overlooked in the majority opinion. The
decision of this Court in the case referred to does not constitute res judicata on the points
adverted to by the appellant. The only point decided in that case is that "the evidence is
sufficient to establish the loss of the document contained in the envelope." In the opinion of
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this Court, this circumstance justified "the presentation of secondary evidence of its contents
and of whether it was executed with all the essential and necessary legal formalities." That is all
that was decided. This Court further said:
The trial of this case was limited to the proof of loss of the will, and from what has taken place
we deduce that it was not petitioner's intention to raise, upon the evidence adduced by her, the
other points involved herein, namely, as we have heretofore indicated, whether Exhibit B is a
true copy of the will and whether the latter was executed with all the formalities required by
law for its probate. the testimony of Alberto Barretto bears importantly in this connection. (P.
796, supra.)
Appellant's contention that he question before the probate court was whether the draft (Exhibit
B) is a true copy or draft of the snatched will is a mistaken interpretation and view of the
decision of this Court in the case referred to, for if this Court did make that pronouncement,
which, of course, it did not, such pronouncement would be contrary to law and would have
been a grievous and irreparable mistake, because what the Court passed upon and decided in
that case, as already stated, is that there was sufficient evidence to prove the loss of the will
and that the next step was to prove by secondary evidence its due execution in accordance
with the formalities of the law and its contents, clearly and distinctly, by the testimony of at
least two credible witnesses. 1
The appellant invokes Rule 133 to argue that Rule 77 should not have been applied to the case
by the provisions of section 623 of the Code and Civil Procedure (Act No. 190), for the reason
that this case had been commenced before the Rules of Court took effect. But Rule 133 cited by
the appellant provides:
These rules shall take effect on July 1, 1940. They shall govern all cases brought after they take
effect, and also all further proceedings in cases then pending, except to the extent that in the
opinion of the court their application would not be feasible or would work injustice, in which
event the former procedure shall apply. (Emphasis supplied.)
So, Rule 77 applies to this case because it was a further proceedings in case then pending. But
even if section 623 of the Code of Civil Procedure were to be applied, still the evidence to prove
the contents and due execution of the will and the fact of its unauthorized destruction,
cancellation, or obliteration must be established "by full evidence to the satisfaction of the
Court." This requirement may even be more strict and exacting than the two - witness rule
provided for in section 6, Rule 77. The underlying reason for the exacting provisions found in
section 623 of Act No. 190 and section 6, Rule 77, the product of experience and wisdom, is to
prevent imposters from foisting, or at least to make for them difficult to foist, upon probate
courts alleged last wills or testaments that were never executed.
In commenting unfavorably upon the decree disallowing the lost will, both the appellant and the
dissenting opinion suffer from an infirmity born of a mistaken premise that all the conclusions
and pronouncements made by the probate court in the first decree which allowed the probate
of the lost will of the late Jose B. Suntaymust be accepted by this Court. This is an error. It
must be borne in mind that this is not a petition for a writ of certiorari to review a judgment of
the Court of Appeals on questions of law where the findings of fact by said Court are binding
upon this Court. This is an appeal from the probate court, because the amount involved in the
controversy exceeds P50,000, and this Court in the exercise of its appellate jurisdiction must
review the evidence and the findings of fact and legal pronouncements made by the probate
court. If such conclusions and pronouncements are unjustified and erroneous this Court is in
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duty bound to correct them. Not long after entering the first decree the probate court was
convinced that it had committed a mistake, so it set aside the decree and entered another. This
Court affirmed the last decree not precisely upon the facts found by the probate court but upon
facts found by it after a careful review and scrutiny of the evidence, parole and documentary.
After such review this Court has found that the provisions of the will had not been established
clearly and distinctly by at least two credible witnesses and that conclusion is unassailable
because it is solidly based on the established facts and in accordance with law.
The appellant and the dissent try to make much out of a pleading filed by five (5) children and
the widow of Apolonio Suntay, another child of the deceased by the first marriage, wherein they
state that
. . . in answer to the alternative petition filed in these proceedings by Silvino Suntay, through
counsel, dated June 18, 1947, to this Honorable Court respectfully state that, since said
alternative petition seeks only to put into effect the testamentary disposition and wishes of their
late father, they have no opposition thereto. (Pp. 71-72, amended record on appeal.)
Does that mean that they were consenting to the probate of the lost will? Of course not. If the
lost will sought to be probated in the alternative petition was really the will of their late father,
they, as good children, naturally had, could have, no objection to its probate. That is all that
their answer implies and means. But such lack of objection to the probate of the lost will does
not relieve the proponent thereof or the party interested in its probate from establishing its due
execution and proving clearly and distinctly the provisions thereof by at least two credible
witnesses. It does not mean that they accept the draft Exhibit B as an exact and true copy of
the lost will and consent to its probate. Far from it. In the pleading copied in the dissent, which
the appellant has owned and used as argument in the motion for reconsideration, there is
nothing that may bolster up his contention. Even if all the children were agreeable to the
probate of said lost will, still the due execution of the lost will must be established and the
provisions thereof proved clearly and distinctly by at least two credible witnesses, as provided
for in section 6, Rule 77. The appellant's effort failed to prove what is required by the rule. Even
if the children of the deceased by the first marriage, out of generosity, were willing to donate
their shares in the estate of their deceased father or parts thereof to their step mother and her
only child, the herein appellant, still the donation, if validly made, would not dispense with the
proceedings for the probate of the will in accordance with section 6, Rule 77, because the
former may convey by way of donation their shares in the state of their deceased father or
parts thereof to the latter only after the decree disallowing the will shall have been rendered
and shall have become final. If the lost will is allowed to probate there would be no room for
such donation except of their respective shares in the probated will.

The part of the deposition of Go Toh quoted in the motion for reconsideration which appellant
underscores does not refer to Go Toh but to Manuel Lopez. Even if Go Toh heard Manuel Lopez
read the draft (Exhibit B) for the purpose of checking it up with the original held and read by
Jose B. Suntay, Go Toh should not have understood the provisions of the will because he knew
very little of the Spanish language in which the will was written (answer to 22nd and 23rd
interrogatories and to X-2 cross-interrogatory). In fact, he testifies in his deposition that all he
knows about the contents of the lost will was revealed to him by Jose B. Suntay at the time it
was executed (answers to 25th interrogatory and to X-4 and X-8 cross-interrogatories); that
Jose B. Suntay told him that the contents thereof are the same as those of the draft [Exhibit B]
(answers to 33rd interrogatory and to X-8 cross-interrogatory); that Mrs. Suntay had the draft
166

of the will (Exhibit B) translated into Chinese and he read the translation (answer to the 67th
interrogatory); that he did not read the will and did not compare it (check it up) with the draft
[Exhibit B] (answers to X-6 and X-20 cross-interrogatories). We repeat that
. . . all of Go Toh's testimony by deposition on the provisions of the alleged lost will is hearsay,
because he came to know or he learned of them from information given him by Jose
B. Suntay and from reading the translation of the draft (Exhibit B) into Chinese. This finding
cannot be contested and assailed.
The appellant does not understand how the Court came to the conclusion that Ana Suntay, a
witness for the appellant could not have read the part of the will on adjudication. According to
her testimony "she did not read the whole will but only the adjudication," which, this Court
found, "is inconsistent with her testimony in chief (to the effect) that 'after Apolonio read that
portion, then he turned over the document to Manuel, and he went away.'" (P. 528, t. s. n.,
hearing of 24 February 1948.) And appellant asks the question: "Who went away? Was it
Manuel or Apolonio?" In answer to his own question the appellant says: "The more obvious
inference is that it was Apolonio and not Manuel who went away." This inference made by the
appellant not only is not obvious but it is also illogical, if it be borne in mind that Manuel came
to the house of Apolonio and it happened that Ana was there, according to her testimony. So
the sentence "he went away" in Ana's testimony must logically and reasonably refer to Manuel,
who was a caller or visitor in the house of his brother Apolonio and not to the latter who was in
his house. If it was Apolonio who "went away," counsel for the appellant could have brought
that out by a single question. As the evidence stands could it be said that the one who went
away was Apolonio and not Manuel? The obvious answer is that it was Manuel. That inference
is the result of a straight process of reasoning and clear thinking.
There is a veiled insinuation in the dissent that Alberto Barretto testified as he did because he
had been paid by Federico C. Suntay the sum of P16,000. Federico C.Suntay testifies on the
point thus
Q. You mentioned in your direct testimony that you paid certain amount to Atty. Alberto Baretto
for services rendered, how much did you pay?
A. Around SIXTEEN THOUSAND (P16,000.00).
Q. When did you make the payment?
A. During the Japanese time.
Q. Did you state that fact in any accounts you presented to the Court?

A. I do not quite remember that.

. . . (P. 180, t. s. n., hearing of 24 October 1947.)
Q. When you made that payment, was (it) your intention to charge it to the state or to collect it
later from the estate?
A. Yes, sir.
Q. More or less when was such payment made, during the Japanese time, what particular
month and year, do you remember?
A. I think in 1942.
167

Q. And you said you paid him because of services he rendered?

A. Upon the order to the Court.

Q. And those services were precisely because he made a will and he made a will which was lost,
the will of Jose B. Suntay? . . . (P. 181, t. s. n., supra.)
A. I think I remember correctly according to ex-Representative Vera who is the administrator
whom I followed at that time, that was paid according to the services rendered by Don Alberto
Barretto with regard to our case in the testamentaria but he also rendered services to my
father.
Q. At least your Counsel said that there was an order of the Court ordering you to pay that, do
you have that copy of the order?
A. Yes, sir, I have, but I think that was burned. (P. 184, t. s. n., supra.)
So the sum of P16,000 was paid upon recommendation of the former administrator and order
of the probate court for services rendered by Alberto Baretto not only in the probate
proceedings but also for services rendered to his father. But if this sum of P16,000 paid to
Alberto Barretto upon recommendation of the previous administrator and order of the probate
court for professional services rendered in the probate proceedings and to the deceased in his
lifetime be taken against his truthfulness and veracity as to affect adversely his testimony, what
about the professional services of Anastacio Teodoro who appeared in this case as one of the
attorneys for the petitioner- appellant? (P. 2, t. s. n., hearing of 13 October 1947.) Would that
not likewise or by the same token affect his credibility? Is not the latter's interest more
compelling than the former's?

For the foregoing reasons, the motion for reconsideration is denied.

Pablo, Bengzon, Reyes, A. and Concepcion, JJ., concur.

Separate Opinions
PARAS, C.J., dissenting:
For the same reasons and considerations set forth in detail in my dissent promulgated on July
31, 1954, I vote to grant the motion for reconsideration.

Montemayor and Jugo, JJ., concur.

||| (Suntay v. Suntay, G.R. Nos. L-3087 & L-3088, July 31, 1954)

Intervention
[G.R. No. L-17091. September 30, 1963.]
IN THE MATTER OF THE ESTATE OF THE DECEASED CHUNG LIU, NGO THE
HUA, petitioner-appellant, vs. CHUNG KIAT HUA, LILY CHUNG CHO, BONIFACIO CHUNG
SIONG PEK and CHUNG KA BIO, oppositors-appellees, CHUNG KIAT KANG, oppositorappellant,PHILIPPINE TRUST COMPANY, special administrator.

Lorenzo Sumulong for petitioner-appellant.

Zosimo Rivas for oppositor-appellant Chung Kiat Kang.
168

Bienvenido A. Tan, Jr. for oppositor-appellee Bonifacio Chung Siong Pek.

Crispin D. Baizas for other oppositors-appellees.

SYLLABUS
1. ADMINISTRATORS & EXECUTORS; APPOINTMENT; ORDER OF PREFERENCE;
DETERMINATION OF RELATIONSHIPS OF PARTIES BY COURT. What the court is enjoined by
Sec. 1, Rule 91 of the Rules of Court from doing is the distribution of the residue of the estate
before its obligations are first paid, but the court is not enjoined from making a declaration of
heirs prior to the satisfaction of these obligations. In case at bar the court did not purport to
make a declaration of heirs, but only sought to determine the relationship of the parties to be
able to appoint an administrator in accordance with the order of preference established in Sec.
5, Rule 79 of the Rules of Court. The issue of heirship is one to be determined in the decree of
distribution; the findings of the court in the case at bar on the relationship of the parties is not
a determination of such relationships as a basis of distribution.
2. ID.; INTERVENTION BY INTERESTED PARTY; CASE AT BAR. It is well settled that for a
person to be able to intervene in an administration proceeding concerning the estate of a
deceased, he must have an interest in such estate. An interested party has been defined as one
who would be benefited by the estate, such as an heir, or one who has a certain claim against
the estate, such as a creditor. As appellant in the case at bar does not claim to be a creditor nor
is he an heir in accordance with the law of the country of the deceased, he has no legal interest
in the decedent's estate and cannot he appointed as co- administrator thereof.
DECISION
LABRADOR, J p:
This is an appeal from an order of the Court of First Instance of Rizal, Pasay City Branch, Hon.
Jesus Perez, presiding, appointing Chung Kiat Hua as administrator of the estate of the
deceased Chung Liu in Special Proceeding No. 1552-P of said court.
On December 7, 1957, Ngo The Hua, claiming to be the surviving spouse of the deceased
Chung Liu, filed a petition to be appointed administratrix of the estate of the aforementioned
deceased. Her petition was opposed by Chung Kiat Hua, Lily Chung Cho, Bonifacio Chung Siong
Pek and Chung Ka Bio, all claiming to be children of the deceased Chung Liu by his first wife,
Tan Hua. They claim that Ngo The Hua is morally and physically unfit to execute the duties of
the trust as administratrix, and that she and the deceased have secured an absolute divorce in
Taiwan, both being Chinese citizens, confirmed and legalized by the Taipei District Court,
Taipei, Taiwan on August 25, 1955. In this same opposition they prayed that Chung Kiat Hua,
allegedly the eldest child of the deceased, be appointed administrator instead. These oppositors'
prayer was in turn opposed by Ngo The Hua who claimed that the oppositors are not children of
Chung Liu.
On January 13, 1957, Chung Kiat Kang, claiming to be a nephew of the deceased, filed his
opposition to the appointment of either Ngo The Hua or Chung Kiat Hua, on the ground that to
be appointed, they must first prove their respective relationship to the deceased Chung Liu, and
prayed that he be appointed administrator.
The petition was heard and evidence presented by both petitioner Ngo The Hua and the
oppositors Chung Kiat Hua, et al. When Chung Kiat Kang's turn to present his evidence came,
he manifested, through his counsel, that he was waiving his right to present evidence in so far
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as the appointment of administrator of the estate is concerned. (t.s.n. pp. 3-6, hearing of July
3, 1958).
On December 2, 1959, after a lengthy hearing, the lower court found that Ngo The Hua and the
deceased were validly divorced by the aforementioned Taipei District Court, and that Chung Kiat
Hua, Lily Chung Cho, Bonifacio Chung Siong Pek and Chung Kiat Bio are children of the
deceased. So it issued the order appointing Chung Kiat Hua as administrator of the estate of
Chung Liu.
From this order, both the petitioner and Chung Kiat Kang appealed. On May 30, 1961, however,
petitioner Ngo The Hua filed a petition to withdraw her appeal stating that she had entered into
an amicable settlement with the oppositors-appellees. Her petition was granted by this Court in
a resolution dated June 26, 1961.
Hence only the appeal of oppositor Chung Kiat Kang remains for the consideration of this Court.
Appellant now contends that the lower court erred in passing upon the validity of the divorce
obtained by the petitioner and the deceased and upon the filiation of the oppositors-appellees,
such being a prejudgment "since it is well-settled that the declaration of heirs shall only take
place after all debts, expenses and taxes have been paid" in accordance with Sec. 1, Rule 91 of
the Rules of Court. The pertinent portion of the section cited by appellant is as follows:
"Section 1. When order for distribution of residue made. . . . When the debts, funeral
charges, and expenses of administration, the allowances to the widow, and inheritance tax, if
any, chargeable to the estate in accordance with law, have been paid, the court . . . shall assign
the residue of the estate of the persons entitled to the same . . .
"No distribution shall be allowed until the payment of the obligations above-mentioned has
been made or provided for . . ." (Italics supplied)
A cursory reading of the above-quoted section discloses that what the court is enjoined from
doing is the assignment or distribution of the residue of the deceased's estate before the abovementioned obligations chargeable to the estate are first paid Nowhere from said section may it
be inferred that the court cannot make a declaration of heirs prior to the satisfaction of these
obligations. It is to be noted, however, that the court in making the appointment of the
administrator did not purport to make a declaration of heirs.
On the other hand, it is clear from the facts of this case that it was deemed necessary by the
lower court to determine the relationship of the parties, as advanced by the petitioner and the
oppositors-appellees, to be able to appoint an administrator in accordance with the order of
preference established in Section 5, Rule 79 of the Rules of Court. Said section provides that
letters of administration shall be granted to the surviving spouse, the next of kin, or to any
principal creditor, in this order.Oppositors-appellees denied petitioner Ngo The Hua's claim that
she is the surviving spouse of Chung Liu, and the petitioner likewise denied the oppositorsappellees' claim that they are children of the deceased. Since these applicants were asking for
the letter of administration on the theory that they are preferred according to Section 5 of Rule
79 because of their relationship to the deceased Chung Liu, the lower court necessarily had to
pass first on the truth of their respective claims of relationship to be able to appoint an
administrator in accordance with the aforementioned order of preference.
Let it be made clear that what the lower court actually decided and what we also decide is the
relationship between the deceased and the parties claiming the right to be appointed his
administrator, to determine who among them is entitled to the administration, not who are his
170

heirs who are entitled to share in his estate. This issue of heirship is one to be determined in
the decree of distribution, and the findings of the court in the case at bar on the relationship of
the parties is not a final determination of such relationships as a basis of distribution.
Having resolved the issue raised, it is unnecessary to rule on the other questions raised by the
appellant Chung Kiat Kang. It is well-settled that for a person to be able to intervene in an
administration proceeding concerning the estate of a deceased, it is necessary for him to have
interest in such estate (Sec. 4, Rule 80, Rules of Court; Moran, Comments on the Rules of
Court, Vol. II, 1957 ed. p. 382). An interested party has been defined in this connection as one
who would be benefited by the estate, such as an heir, or one who has a certain claim against
the estate, such as a creditor (Saguinsin vs. Lindayag, et al., G.R. No. L-17759, Dec. 17, 1962;
Intestate Estate of Julio Magbanwa, 40 O.G., 1171; Williams vs.Williams, 113 Ga. 1006, cited in
Francisco, Rules of Court, Vol. 1955 ed., p. 411). Appellant Chung Kiat Kang does not claim to
be a creditor of Chung Liu's estate. Neither is he an heir in accordance with the Civil Code of
the Republic of China (Exh. 28 of Chung Kiat Hua), the law that applies in this case, Chung Liu
being a Chinese citizen (Art. 16, New Civil Code). The appellant not having any interest in
Chung Liu's estate, either as heir or creditor, he cannot be appointed as co-administrator of the
estate, as he now prays.
WHEREFORE, the order appealed from is hereby affirmed, with costs against appellants. So
ordered.
||| (In re: Chung Liu v. Chung Kiat Hua, G.R. No. L-17091, September 30, 1963)

Testators capacity

[G.R. No. 168156. December 6, 2006.]

HEIRS OF ROSENDO LASAM, Represented by Rogelio Lasam and Atty. Edward P.
Llonillo, petitioners, vs. VICENTA UMENGAN,respondent.
DECISION
CALLEJO, SR., J p:
Before the Court is the petition for review on certiorari filed by the Heirs of Rosendo Lasam,
represented by Rogelio M. Lasam and Atty. Edward P. Llonillo, seeking the reversal of the
Decision 1 dated February 16, 2005 of the Court of Appeals (CA) in CA-G.R. SP No. 80032. The
assailed decision reversed and set aside the decision of the Regional Trial Court (RTC) of
Tuguegarao City, Cagayan and dismissed, for lack of merit, the complaint for unlawful detainer
file by the said heirs against respondent Vicenta Umengan.
The RTC decision affirmed that of the Municipal Trial Court in Cities (MTCC) of the same city,
Branch III, which had rendered judgment in favor of the heirs of Rosendo Lasam and directed
the ejectment of respondent Vicenta Umengan from the lot subject of litigation.
The present petition likewise seeks the reversal of the CA Resolution dated May 17, 2005
denying the motion for reconsideration filed by the heirs of Rosendo Lasam.
As culled from the records, the backdrop of the present case is as follows
The lot subject of the unlawful detainer case is situated in Tuguegarao City, Cagayan. It is the
eastern half portion of Lot No. 5427 and Lot No. 990. The first lot, Lot No. 5427 containing an
171

area of 1,037 square meters, is covered by Original Certificate of Title (OCT) No. 196. The
second lot, Lot No. 990 containing an area of 118 sq m, is covered by OCT No. 1032. These lots
are registered in the names of the original owners, spouses Pedro Cuntapay and Leona
Bunagan.
In an instrument denominated as Deed of Confirmation and acknowledged before a notary
public on June 14, 1979, the heirs of the said spouses conveyed the ownership of Lots Nos. 990
and 5427 in favor of their two children, Irene Cuntapay and Isabel Cuntapay. In another
instrument entitled Partition Agreement and acknowledged before a notary public on December
28, 1979, it was agreed that the eastern half portion (subject lot) of Lots Nos. 990 and 5427
shall belong to the heirs of Isabel Cuntapay. On the other hand, the remaining portion thereof
(the west portion) shall belong to the heirs of Irene Cuntapay. The subject lot (eastern half
portion) has an area of 554 sq m. cSATEH

Isabel Cuntapay had four children by her first husband, Domingo Turingan, namely: Abdon,
Sado (deceased), Rufo and Maria. When Domingo Turingan passed away, Isabel Cuntapay
remarried Mariano Lasam. She had two other children by him, namely: Trinidad and Rosendo.
Sometime in January 2001, the heirs of Rosendo Lasam (son of Isabel Cuntapay by her second
husband) filed with the MTCC a complaint for unlawful detainer against Vicenta Umengan, who
was then occupying the subject lot. Vicenta Umengan is the daughter of Abdon Turingan (son
of Isabel Cuntapay by her first husband).
In their complaint, the heirs of Rosendo Lasam alleged that they are the owners of the subject
lot, having inherited it from their father. Rosendo Lasam was allegedly the sole heir of the
deceased Pedro Cuntapay through Isabel Cuntapay. During his lifetime, Rosendo Lasam
allegedly temporarily allowed Vicenta Umengan to occupy the subject lot sometime in 1955.
The latter and her husband allegedly promised that they would vacate the subject lot upon
demand. However, despite written notice and demand by the heirs of Rosendo Lasam, Vicenta
Umengan allegedly unlawfully refused to vacate the subject lot and continued to possess the
same. Accordingly, the heirs of Rosendo Lasam were constrained to institute the action for
ejectment.
In her Answer with Counterclaim, Vicenta Umengan specifically denied the material allegations
in the complaint. She countered that when Isabel Cuntapay passed away, the subject lot was
inherited by her six children by her first and second marriages through intestate succession.
Each of the six children allegedly had a pro indiviso share of 1/6 of the subject lot.
It was further alleged by Vicenta Umengan that her father, Abdon Turingan, purchased the
respective 1/6 shares in the subject lot of his siblings Maria and Sado. These conveyances were
allegedly evidenced by the Deed of Sale dated March 3, 1975, appearing as Doc. No. 88, Page
No. 36, Book No. XIV, series of 1975 of the notarial book of Atty. Pedro Lagui.
Prior thereto, Rufo already sold his 1/6 share in the subject lot to Vicenta Umengan and her
husband as evidenced by the Deed of Sale dated June 14, 1961, appearing as Doc. No. 539,
Page No. 41, Book No. V, series of 1961 of the notarial book of Atty. Pedro Lagui. Also on June
14, 1961, Abdon donated his 1/6 share in the subject lot to her daughter Vicenta Umengan as
evidenced by the Deed of Donation appearing as Doc. No. 538, Page No. 41, Book No. V, series
of 1961 of the notarial book of the same notary public.
According to Vicenta Umengan, the children of Isabel Cuntapay by her second husband
(Rosendo and Trinidad Lasam) own only 2/6 portion of the subject lot. She thus prayed that the
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complaint for ejectment be dismissed and that the heirs of Rosendo Lasam be ordered to pay
her damages.
The MTCC rendered judgment in favor of the heirs of Rosendo Lasam and directed the
ejectment of Vicenta Umengan. In so ruling, the MTCC gave credence to the newly discovered
last will and testament (entitledTestamento Abierto) purportedly executed by Isabel Cuntapay
where she bequeathed the subject lot to her son, Rosendo Lasam, thus:
. . . my share 1/5th (one-fifth) of the Cuntapay heirs, bordered on the North by Sr. Elia Canapi;
to the South, by Calle Aguinaldo; to the East, by Calle P. Burgos and the West, by the late Don
Luis Alonso; on the property which is my share stands a house of light materials where I
presently reside; this 1/5th (one-fifth) share of my inheritance from the Cuntapays I leave to
my son Rosendo Lasam and also the aforementioned house of light material . . . 2
The MTCC reasoned that the heirs of Rosendo Lasam anchored their claim over the subject lot
on the last will and testament of Isabel Cuntapay while Vicenta Umengan hinged hers on
intestate succession and legal conveyances. Citing jurisprudence 3 and Article 1080 4 of the
Civil Code, the MTCC opined that testacy was favored and that intestacy should be avoided and
the wishes of the testator should prevail. It observed that the last will and testament of Isabel
Cuntapay was not yet probated as required by law; nonetheless, the institution of a probate
proceeding was not barred by prescription. IDScTE
With the finding that the subject lot was already bequeathed by Isabel Cuntapay to Rosendo
Lasam, the MTCC held that the siblings Abdon, Sado, Rufo and Maria Turingan no longer had
any share therein. Consequently, they could not convey to Vicenta Umengan what they did not
own. On the issue then of who was entitled to possession of the subject lot, the MTCC ruled in
favor of the heirs of Rosendo Lasam as it found that Vicenta Umengan's possession thereof was
by mere tolerance. The dispositive portion of the MTCC decision reads:
WHEREFORE, in the light of the foregoing considerations, this Court Resolve[d] to order the
EJECTMENT of VICENTA T. UMENGAN and in her place INSTITUTE THE HEIRS OF ROSENDO
LASAM.
It is further ordered the defendant shall pay the Heirs of Rosendo Lasam the sum of P500.00
pesos representing the monthly rental of the land from August 2000 to the time this case shall
have been terminated.
Ordering the defendant to pay the plaintiffs the amount of P20,000.00 attorney's fees plus cost
of this litigation.
So Ordered. 5
On appeal, the RTC affirmed in toto the decision of the MTCC. The RTC echoed the reasoning of
the MTCC that the testamentary disposition of the property of Isabel Cuntapay should be
respected, and that the heirs of Rosendo Lasam have a better right to possess the subject lot.
Undaunted, Vicenta Umengan filed an appeal with the CA. She argued that the MTCC had no
jurisdiction over the case as it involved the recovery ofownership of the subject lot, not merely
recovery of possession or unlawful detainer. She also assailed the RTC's and the MTCC's holding
that the purported Testamento Abierto of Isabel Cuntapay prevails over Vicenta Umengan's
muniments of title and, consequently, the heirs of Rosendo Lasam have a better right to the
subject lot than Vicenta Umengan.
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In the assailed Decision dated February 16, 2005, the CA reversed and set aside the decision of
the RTC. The appellate court preliminarily upheld the jurisdiction of the MTCC over the subject
matter as it found that the allegations in the complaint made out a case for unlawful detainer.
The heirs of Rosendo Lasam in their complaint, according to the CA, only sought for Vicenta
Umengan to vacate and surrender possession of the subject lot. The CA also rejected the
contention of the heirs of Rosendo Lasam that the issue of ownership of the subject lot had
already been settled in another case, Civil Case No. 4917, before RTC (Branch 3) of Tuguegarao
City. The CA stated that the trial court's order dismissing the said case was not a "judgment on
the merits" as to constitute res judicata.
However, the CA declared that the RTC, as well as the MTCC, erred in ruling that, by virtue of
the purported last will and testament of Isabel Cuntapay, the heirs of Rosendo Lasam have a
better right to the subject lot over Vicenta Umengan. The CA explained that the said last will
and testament did not comply with the formal requirements of the law on wills.6
Specifically, the CA found that the pages of the purported last will and testament were not
numbered in accordance with the law. Neither did it contain the requisite attestation clause.
Isabel Cuntapay as testator and the witnesses to the will did not affix their respective
signatures on the second page thereof. The said instrument was likewise not acknowledged
before a notary public by the testator and the witnesses. The CA even raised doubts as to its
authenticity, noting that while Isabel Cuntapay died in 1947 and the heirs of Rosendo Lasam
claimed that they discovered the same only in 1997, a date May 19, 1956 appears on the
last page of the purported will. The CA opined that if this was the date of execution, then the
will was obviously spurious. On the other hand, if this was the date of its discovery, then the CA
expressed bafflement as to why the heirs of Rosendo Lasam, through their mother, declared in
the Partition Agreement dated December 28, 1979 that Isabel Cuntapay died intestate.DCTHaS

It was observed by the CA that as against these infirmities in the claim of the heirs of Rosendo
Lasam, Vicenta Umengan presented a Deed of Sale and a Deed of Donation to justify her
possession of the subject lot. The CA noted that she has also possessed the subject property
since 1955. Such prior possession, the CA held, gave Vicente Umengan the right to remain in
the subject lot until a person with a better right lawfully ejects her. The heirs of Rosendo Lasam
do not have such a better right. The CA stressed that the ruling on the issue of physical
possession does not affect the title to the subject lot nor constitute a binding and conclusive
adjudication on the merits on the issue of ownership. The parties are not precluded from filing
the appropriate action to directly contest the ownership of or the title to the subject lot.

The decretal portion of the assailed decision of the CA reads:

WHEREFORE, premises considered, the appeal is GRANTED. The August 29, 2003 decision of
the RTC, Branch 1, Tuguegarao City, Cagayan in Civil Case No. 5924 is hereby REVERSED and
SET ASIDE. Private respondents' complaint for unlawful detainer against petitioner is dismissed
for lack of merit.
SO ORDERED. 7
The heirs of Rosendo Lasam sought the reconsideration thereof but their motion was denied by
the CA in its Resolution dated May 17, 2005.
The heirs of Rosendo Lasam (petitioners) now come to the Court alleging that the CA
committed reversible error in setting aside the decision of the RTC, which had affirmed that of
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the MTCC, and dismissing their complaint for unlawful detainer against respondent Vicenta
Umengan.
Petitioners argue that the CA erred when it held, on one hand, that the MTCC had jurisdiction
over the subject matter of the complaint as the allegations therein make out a case for unlawful
detainer but, on the other hand, proceeded to discuss the validity of the last will and testament
of Isabel Cuntapay.
Petitioners insist that respondent is holding the subject lot by mere tolerance and that they, as
the heirs of Rosendo Lasam who was the rightful owner of the subject lot, have a better right
thereto. It was allegedly error for the CA to declare the last will and testament of Isabel
Cuntapay as null and void for its non-compliance with the formal requisites of the law on wills.
The said matter cannot be resolved in an unlawful detainer case, which only involves the issue
of material or physical possession of the disputed property. In any case, they maintain that the
said will complied with the formal requirements of the law.
It was allegedly also erroneous for the CA to consider in respondent's favor the deed of sale
and deed of donation covering portions of the subject lot, when these documents had already
been passed upon by the RTC (Branch 3) of Tuguegarao City in Civil Case No. 4917 when it
dismissed the respondent's complaint for partition of the subject lot. The said order allegedly
constituted res judicata and may no longer be reviewed by the CA.
Petitioners emphasize that in an unlawful detainer case, the only issue to be resolved is who
among the parties is entitled to the physical or material possession of the property in dispute.
On this point, the MTCC held (and the same was affirmed by the RTC) that petitioners have a
better right since the "merely tolerated" possession of the respondent had already expired upon
the petitioners' formal demand on her to vacate. In support of this claim, they point to the
affidavit of Heliodoro Turingan, full brother of the respondent, attesting that the latter's
possession of the subject lot was by mere tolerance of Rosendo Lasam who inherited the same
from Isabel Cuntapay.
According to petitioners, respondent's predecessors-in-interest from whom she derived her
claim over the subject lot by donation and sale could not have conveyed portions thereof to
her, as she had claimed, because until the present, it is still covered by OCT Nos. 196 and 1032
under the names of Pedro and Leona Cuntapay. Their respective estates have not been settled
up to now. HTAIcD
It is also the contention of petitioners that the CA should have dismissed outright respondent's
petition filed therewith for failure to comply with the technical requirements of the Rules of
Court. Specifically, the petition was not allegedly properly verified, lacked statement of material
dates and written explanation on why personal service was not made.
This last contention of petitioners deserves scant consideration. The technical requirements for
filing an appeal are not sacrosanct. It has been held that while the requirements for perfecting
an appeal must be strictly followed as they are considered indispensable interdictions against
needless delays and for orderly discharge of judicial business, the law does admit of exceptions
when warranted by circumstances. 8 In the present case, the CA cannot be faulted in choosing
to overlook the technical defects of respondent's appeal. After all, technicality should not be
allowed to stand in the way of equitably and completely resolving the rights and obligations of
the parties. 9
The Court shall now resolve the substantive issues raised by petitioners.
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It is well settled that in ejectment suits, the only issue for resolution is the physical or material
possession of the property involved, independent of any claim of ownership by any of the party
litigants. However, the issue of ownership may be provisionally ruled upon for the sole purpose
of determining who is entitled to possession de facto. 10
In the present case, petitioners base their claim of right to possession on the theory that their
father, Rosendo Lasam, was the sole owner of the subject lot by virtue of the newly discovered
last will and testament of Isabel Cuntapay bequeathing the same to him. Respondent is
allegedly holding the subject lot by mere tolerance of Rosendo Lasam and, upon the petitioners'
formal demand on her to vacate the same, respondent's right to possess it has expired.
On the other hand, respondent hinges her claim of possession on the legal conveyances made
to her by the children of Isabel Cuntapay by her first husband, namely, Maria, Rufo, Sado and
Abdon. These conveyances were made through the sale and donation by the said siblings of
their respective portions in the subject lot to respondent as evidenced by the pertinent deeds.
The CA correctly held that, as between the respective claims of petitioners and respondent, the
latter has a better right to possess the subject lot.
As earlier stated, petitioners rely on the last will and testament of Isabel Cuntapay that they
had allegedly newly discovered. On the basis of this instrument, the MTCC and RTC ruled that
petitioners have a better right to the possession of the subject lot because, following the law on
succession, it should be respected and should prevail over intestate succession.
However, contrary to the ruling of the MTCC and RTC, the purported last will and testament of
Isabel Cuntapay could not properly be relied upon to establish petitioners' right to possess the
subject lot because, without having been probated, the said last will and testament could not be
the source of any right.
Article 838 of the Civil Code is instructive:
Art. 838. No will shall pass either real or personal property unless it is proved and allowed in
accordance with the Rules of Court.
The testator himself may, during his lifetime, petition the court having jurisdiction for the
allowance of his will. In such case, the pertinent provisions of the Rules of Court for the
allowance of wills after the testator's death shall govern. ICHcTD
The Supreme Court shall formulate such additional Rules of Court as may be necessary for the
allowance of wills on petition of the testator.
Subject to the right of appeal, the allowance of the will, either during the lifetime of the testator
or after his death, shall be conclusive as to its due execution.
In Caiza v. Court of Appeals, 11 the Court ruled that: "[a] will is essentially ambulatory; at any
time prior to the testator's death, it may be changed or revoked; and until admitted to
probate, it has no effect whatever and no right can be claimed thereunder, the law
being quite explicit: 'No will shall pass either real or personal property unless it is proved and
allowed in accordance with the Rules of Court.'" 12
Dr. Tolentino, an eminent authority on civil law, also explained that "[b]efore any will can
have force or validity it must be probated. To probate a will means to prove before some
officer or tribunal, vested by law with authority for that purpose, that the instrument offered to
be proved is the last will and testament of the deceased person whose testamentary act it is
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alleged to be, and that it has been executed, attested and published as required by law, and
that the testator was of sound and disposing mind. It is a proceeding to establish the validity of
the will." 13Moreover, the presentation of the will for probate is mandatory and is a matter of
public policy. 14
Following the above truisms, the MTCC and RTC, therefore, erroneously ruled that petitioners
have a better right to possess the subject lot on the basis of the purported last will and
testament of Isabel Cuntapay, which, to date, has not been probated. Stated in another
manner, Isabel Cuntapay's last will and testament, which has not been probated, has no effect
whatever and petitioners cannot claim any right thereunder.
Hence, the CA correctly held that, as against petitioners' claim, respondent has shown a better
right of possession over the subject lot as evidenced by the deeds of conveyances executed in
her favor by the children of Isabel Cuntapay by her first marriage.
Contrary to the claim of petitioners, the dismissal of respondent's action for partition in Civil
Case No. 4917 before the RTC (Branch 3) of Tuguegarao City does not constitute res
judicata on the matter of the validity of the said conveyances or even as to the issue of the
ownership of the subject lot. The order dismissing respondent's action for partition in Civil Case
No. 4917 stated thus:

For resolution is a motion to dismiss based on defendants' [referring to the petitioners herein]
affirmative defenses consisting inter alia in the discovery of a last will and testament of Isabel
Cuntapay, the original owner of the land in dispute.
xxx xxx xxx
It appears, however, that the last will and testament of the late Isabel Cuntapay has not yet
been allowed in probate, hence, there is an imperative need to petition the court for the
allowance of said will to determine once and for all the proper legitimes of legatees and
devisees before any partition of the property may be judicially adjudicated.
It is an elementary rule in law that testate proceedings take precedence over any other action
especially where the will evinces the intent of the testator to dispose of his whole estate.
With the discovery of the will of the late Isabel Cuntapay in favor of the defendants, the Court
can order the filing of a petition for the probate of the same by the interested party.
WHEREFORE, in light of the foregoing considerations, let the above-entitled case be as it is
hereby DISMISSED. aSDCIE
SO ORDERED. 15
For there to be res judicata, the following elements must be present: (1) finality of the former
judgment; (2) the court which rendered it had jurisdiction over the subject matter and the
parties; (3) it must be a judgment on the merits; and (4) there must be, between the first and
second actions, identity of parties, subject matter and causes of action. 16The third
requisite, i.e., that the former judgment must be a judgment on the merits, is not present
between the action for partition and the complaint a quo for unlawful detainer. As aptly
observed by the CA:

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Our reading of the Orders (dated June 16, 1997 and October 13, 1997) in Civil Case No. 4917
reveals that the RTC, Branch 3, Tuguegarao, Cagayan, dismissed the complaint for partition
because of the discovery of the alleged last will and testament of Isabel Cuntapay. The court
did not declare respondents [referring to the petitioners herein] the owners of the disputed
property. It simply ordered them to petition the court for the allowance of the will to determine
the proper legitimes of the heirs prior to any partition. Instead of filing the appropriate petition
for the probate of Isabel Cuntapay's will, the respondents filed the present complaint for
unlawful detainer. Viewed from this perspective, we have no doubt that the court's Orders cited
by the respondents are not "judgments on the merits" that would result in the application of the
principle of res judicata. Where the trial court merely refrained from proceeding with the case

and granted the motion to dismiss with some clarification without conducting a trial on the
merits, there is no res judicata. 17
Further, it is not quite correct for petitioners to contend that the children of Isabel Cuntapay by
her first marriage could not have conveyed portions of the subject lot to respondent, as she had
claimed, because until the present, it is still covered by OCT Nos. 196 and 1032 under the
names of Pedro and Leona Cuntapay. To recall, it was already agreed by the heirs of the said
spouses in a Partition Agreement dated December 28, 1979 that the subject lot would belong to
Isabel Cuntapay. The latter died leaving her six children by both marriages as heirs. Considering
that her purported last will and testament has, as yet, no force and effect for not having been
probated, her six children are deemed to be co-owners of the subject lot having their
respective pro indiviso shares. The conveyances made by the children of Isabel Cuntapay by
her first marriage of their respective pro indiviso shares in the subject lot to respondent are
valid because the law recognizes the substantive right of heirs to dispose of their ideal share in
the co-heirship and/co-ownership among the heirs. The Court had expounded the principle in
this wise:
This Court had the occasion to rule that there is no doubt that an heir can sell whatever right,
interest, or participation he may have in the property under administration. This is a matter
which comes under the jurisdiction of the probate court.
The right of an heir to dispose of the decedent's property, even if the same is under
administration, is based on the Civil Code provision stating that the possession of hereditary
property is deemed transmitted to the heir without interruption and from the moment of the
death of the decedent, in case the inheritance is accepted. Where there are however, two or
more heirs, the whole estate of the decedent is, before its partition, owned in common by such
heirs.
The Civil Code, under the provisions of co-ownership, further qualifies this right. Although it is
mandated that each co-owner shall have the full ownership of his part and of the fruits and
benefits pertaining thereto, and thus may alienate, assign or mortgage it, and even substitute
another person in its enjoyment, the effect of the alienation or the mortgage, with respect to
the co-owners, shall be limited to the portion which may be allotted to him in the division upon
the termination of the co-ownership. In other words, the law does not prohibit a co-owner from
selling, alienating or mortgaging his ideal share in the property held in common.
As early as 1942, this Court has recognized said right of an heir to dispose of property under
administration. In the case ofTeves de Jakosalem vs. Rafols, et al., it was said that the sale
made by an heir of his share in an inheritance, subject to the result of the pending
administration, in no wise, stands in the way of such administration. The Court then relied on
the provision of the old Civil Code, Article 440 and Article 399 which are still in force as Article
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533 and Article 493, respectively, in the new Civil Code. The Court also cited the words of a
noted civilist, Manresa: "Upon the death of a person, each of his heirs becomes the undivided
owner of the whole estate left with respect to the part or portion which might be adjudicated to
him, a community of ownership being thus formed among the co-owners of the estate which
remains undivided.'" 18
Contrary to the assertion of petitioners, therefore, the conveyances made by the children of
Isabel Cuntapay by her first marriage to respondent are valid insofar as their pro indiviso shares
are concerned. Moreover, the CA justifiably held that these conveyances, as evidenced by the
deed of donation and deed of sale presented by respondent, coupled with the fact that she has
been in possession of the subject lot since 1955, establish that respondent has a better right to
possess the same as against petitioners whose claim is largely based on Isabel Cuntapay's last
will and testament which, to date, has not been probated; hence, has no force and effect and
under which no right can be claimed by petitioners. Significantly, the probative value of the
other evidence relied upon by petitioners to support their claim, which was the affidavit of
Heliodoro Turingan, was not passed upon by the MTCC and the RTC. Their respective decisions
did not even mention the same. SHTEaA
In conclusion, it is well to stress the CA's admonition that
. . . our ruling on the issue of physical possession does not affect title to the property nor
constitute a binding and conclusive adjudication on the merits on the issue of ownership. The
parties are not precluded from filing the appropriate action directly contesting the ownership of
or the title to the property. 19
Likewise, it is therefore in this context that the CA's finding on the validity of Isabel Cuntapay's
last will and testament must be considered. Such is merely a provisional ruling thereon for the
sole purpose of determining who is entitled to possession de facto.
WHEREFORE, premises considered, the petition is DENIED. The assailed Decision dated
February 16, 2005 and the Resolution dated May 17, 2005 of the Court of Appeals in CA-G.R.
SP No. 80032 are AFFIRMED.
SO ORDERED.
||| (Heirs of Lasam v. Umengan, G.R. No. 168156, December 06, 2006)

Probate and right of disposition

[G.R. Nos. 140371-72. November 27, 2006.]
DY YIENG SEANGIO, BARBARA D. SEANGIO and VIRGINIA D.
SEANGIO, petitioners, vs. HON. AMOR A. REYES, in her capacity as Presiding Judge,
Regional Trial Court, National Capital Judicial Region, Branch 21, Manila, ALFREDO
D. SEANGIO, ALBERTO D. SEANGIO, ELISA D. SEANGIO-SANTOS, VICTOR D.
SEANGIO, ALFONSO D. SEANGIO, SHIRLEY D. SEANGIO-LIM, BETTY D. SEANGIOOBAS and JAMES D. SEANGIO, respondents.
DECISION
AZCUNA, J p:

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This is a petition for certiorari 1 with application for the issuance of a writ of preliminary
injunction and/or temporary restraining order seeking the nullification of the orders, dated
August 10, 1999 and October 14, 1999, of the Regional Trial Court of Manila, Branch 21 (the
RTC), dismissing the petition for probate on the ground of preterition, in the consolidated cases,
docketed as SP. Proc. No. 98-90870 and SP. Proc. No. 99-93396, and entitled, "In the Matter of
the Intestate Estate of Segundo C. Seangio v. Alfredo D. Seangio, et al." and "In the Matter of

the Probate of the Will of Segundo C. Seangio v. Dy Yieng Seangio, Barbara D. Seangio and
Virginia Seangio."
The facts of the cases are as follows:
On September 21, 1988, private respondents filed a petition for the settlement of the intestate
estate of the late Segundo Seangio, docketed as Sp. Proc. No. 98-90870 of the RTC, and
praying for the appointment of private respondent Elisa D. Seangio-Santos as special
administrator and guardian ad litem of petitioner Dy Yieng Seangio.
Petitioners Dy Yieng, Barbara and Virginia, all surnamed Seangio, opposed the petition. They
contended that: 1) Dy Yieng is still very healthy and in full command of her faculties; 2) the
deceased Segundo executed a general power of attorney in favor of Virginia giving her the
power to manage and exercise control and supervision over his business in the Philippines; 3)
Virginia is the most competent and qualified to serve as the administrator of the estate of
Segundo because she is a certified public accountant; and, 4) Segundo left a holographic will,
dated September 20, 1995, disinheriting one of the private respondents, Alfredo Seangio, for
cause. In view of the purported holographic will, petitioners averred that in the event the
decedent is found to have left a will, the intestate proceedings are to be automatically
suspended and replaced by the proceedings for the probate of the will.

On April 7, 1999, a petition for the probate of the holographic will of Segundo, docketed as SP.
Proc. No. 99-93396, was filed by petitioners before the RTC. They likewise reiterated that the
probate proceedings should take precedence over SP. Proc. No. 98-90870 because testate
proceedings take precedence and enjoy priority over intestate proceedings. 2
The document that petitioners refer to as Segundo's holographic will is quoted, as follows:
Kasulatan sa pag-aalis ng mana
Tantunin ng sinuman
Ako si Segundo Seangio Filipino may asawa naninirahan sa 465-A Flores St., Ermita, Manila at
nagtatalay ng maiwanag na pag-iisip at disposisyon ay tahasan at hayagang inaalisan ko ng
lahat at anumang mana ang paganay kong anak na si AlfredoSeangio dahil siya ay naging
lapastangan sa akin at isan beses siya ng sasalita ng masama harapan ko at mga kapatid niya
na si Virginia Seangio labis kong kinasama ng loob ko at sasabe rin ni Alfredo sa akin na ako
nasa ibabaw gayon gunit daratin ang araw na ako nasa ilalim siya at siya nasa ibabaw. IaEScC
Labis kong ikinasama ng loob ko ang gamit ni Alfredo ng akin pagalan para makapagutang na
kuarta siya at kanya asawa na si Merna de los Reyes sa China Bangking Corporation na millon
pesos at hindi ng babayad at hindi ng babayad ito ay nagdulot sa aking ng malaking kahihiya sa
mga may-ari at stockholders ng China Banking.
At ikinagalit ko pa rin ang pagkuha ni Alfredo at ng kanyang asawa na mga custome[r] ng
Travel Center of the Philippines na pinagasiwaan ko at ng anak ko si Virginia.
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Dito ako nagalit din kaya gayon ayoko na bilanin si Alfredo ng anak ko at hayanan kong
inaalisan ng lahat at anoman mana na si Alfredo at si Alfredo Seangio ay hindi ko siya anak at
hindi siya makoha mana.
Nila[g]daan ko ngayon ika 20 ng Setyembre 1995 sa longsod ng Manila sa harap ng tatlong
saksi. 3
(signed)
Segundo Seangio
Nilagdaan sa harap namin
(signed)
Dy Yieng Seangio (signed)
Unang Saksi ikalawang saksi
(signed)
ikatlong saksi
On May 29, 1999, upon petitioners' motion, SP. Proc. No. 98-90870 and SP. Proc. No. 99-93396
were consolidated. 4
On July 1, 1999, private respondents moved for the dismissal of the probate
proceedings 5 primarily on the ground that the document purporting to be the holographic will
of Segundo does not contain any disposition of the estate of the deceased and thus does not
meet the definition of a will under Article 783 of the Civil Code. According to private
respondents, the will only shows an alleged act of disinheritance by the decedent of his eldest
son, Alfredo, and nothing else; that all other compulsory heirs were not named nor instituted as
heir, devisee or legatee, hence, there is preterition which would result to intestacy. Such being
the case, private respondents maintained that while procedurally the court is called upon to rule
only on the extrinsic validity of the will, it is not barred from delving into the intrinsic validity of
the same, and ordering the dismissal of the petition for probate when on the face of the will it
is clear that it contains no testamentary disposition of the property of the decedent.
Petitioners filed their opposition to the motion to dismiss contending that: 1) generally, the
authority of the probate court is limited only to a determination of the extrinsic validity of the
will; 2) private respondents question the intrinsic and not the extrinsic validity of the will; 3)
disinheritance constitutes a disposition of the estate of a decedent; and, 4) the rule on
preterition does not apply because Segundo's will does not constitute a universal heir or heirs to
the exclusion of one or more compulsory heirs. 6
On August 10, 1999, the RTC issued its assailed order, dismissing the petition for probate
proceedings:
A perusal of the document termed as "will" by oppositors/petitioners Dy Yieng Seangio, et al.,
clearly shows that there is preterition, as the only heirs mentioned thereat are Alfredo and
Virginia. [T]he other heirs being omitted, Article 854 of the New Civil Code thus applies.
However, insofar as the widow Dy Yieng Seangio is concerned, Article 854 does not apply, she
not being a compulsory heir in the direct line.

181

As such, this Court is bound to dismiss this petition, for to do otherwise would amount to an
abuse of discretion. The Supreme Court in the case of Acain v. Intermediate Appellate
Court [155 SCRA 100 (1987)] has made its position clear: "for . . . respondents to have
tolerated the probate of the will and allowed the case to progress when, on its face, the will
appears to be intrinsically void . . . would have been an exercise in futility. It would have meant
a waste of time, effort, expense, plus added futility. The trial court could have denied its
probate outright or could have passed upon the intrinsic validity of the testamentary provisions
before the extrinsic validity of the will was resolved (underscoring supplied).
WHEREFORE, premises considered, the Motion to Suspend Proceedings is hereby DENIED for
lack of merit. Special Proceedings No. 99-93396 is hereby DISMISSED without pronouncement
as to costs. aDHCEA
SO ORDERED. 7
Petitioners' motion for reconsideration was denied by the RTC in its order dated October 14,
1999.
Petitioners contend that:
THE RESPONDENT JUDGE ACTED IN EXCESS OF HER JURISDICTION OR WITH GRAVE ABUSE
OF DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION AND DECIDED A
QUESTION OF LAW NOT IN ACCORD WITH LAW AND JURISPRUDENCE IN ISSUING THE
QUESTIONED ORDERS, DATED 10 AUGUST 1999 AND 14 OCTOBER 1999 (ATTACHMENTS "A"
AND "B" HEREOF) CONSIDERING THAT:
I

THE RESPONDENT JUDGE, WITHOUT EVEN COMPLYING WITH SECTIONS 3 AND 4 OF RULE 76
OF THE RULES OF COURT ON THE PROPER PROCEDURE FOR SETTING THE CASE FOR INITIAL
HEARING FOR THE ESTABLISHMENT OF THE JURISDICTIONAL FACTS, DISMISSED THE
TESTATE CASE ON THE ALLEGED GROUND THAT THE TESTATOR'S WILL IS VOID ALLEGEDLY
BECAUSE OF THE EXISTENCE OF PRETERITION, WHICH GOES INTO THE INTRINSIC VALIDITY
OF THE WILL, DESPITE THE FACT THAT IT IS A SETTLED RULE THAT THE AUTHORITY OF
PROBATE COURTS IS LIMITED ONLY TO A DETERMINATION OF THE EXTRINSIC VALIDITY OF
THE WILL, I.E., THE DUE EXECUTION THEREOF, THE TESTATOR'S TESTAMENTARY CAPACITY
AND THE COMPLIANCE WITH THE REQUISITES OR SOLEMNITIES PRESCRIBED BY LAW;
II
EVEN ASSUMING ARGUENDO THAT THE RESPONDENT JUDGE HAS THE AUTHORITY TO RULE
UPON THE INTRINSIC VALIDITY OF THE WILL OF THE TESTATOR, IT IS INDUBITABLE FROM
THE FACE OF THE TESTATOR'S WILL THAT NO PRETERITON EXISTS AND THAT THE WILL IS
BOTH INTRINSICALLY AND EXTRINSICALLY VALID; AND,
III
RESPONDENT JUDGE WAS DUTY BOUND TO SUSPEND THE PROCEEDINGS IN THE INTESTATE
CASE CONSIDERING THAT IT IS A SETTLED RULE THAT TESTATE PROCEEDINGS TAKE
PRECEDENCE OVER INTESTATE PROCEEDINGS.
Petitioners argue, as follows:

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First, respondent judge did not comply with Sections 3 and 4 of Rule 76 of the Rules of Court
which respectively mandate the court to: a) fix the time and place for proving the will when all
concerned may appear to contest the allowance thereof, and cause notice of such time and
place to be published three weeks successively previous to the appointed time in a newspaper
of general circulation; and, b) cause the mailing of said notice to the heirs, legatees and
devisees of the testator Segundo;
Second, the holographic will does not contain any institution of an heir, but rather, as its title
clearly states, Kasulatan ng Pag-Aalis ng Mana, simply contains a disinheritance of a compulsory
heir. Thus, there is no preterition in the decedent's will and the holographic will on its face is
not intrinsically void;

Third, the testator intended all his compulsory heirs, petitioners and private respondents alike,
with the sole exception of Alfredo, to inherit his estate. None of the compulsory heirs in the
direct line of Segundo were preterited in the holographic will since there was no institution of
an heir;
Fourth, inasmuch as it clearly appears from the face of the holographic will that it is both
intrinsically and extrinsically valid, respondent judge was mandated to proceed with the hearing
of the testate case; and,
Lastly, the continuation of the proceedings in the intestate case will work injustice to
petitioners, and will render nugatory the disinheritance of Alfredo. CDAHaE
The purported holographic will of Segundo that was presented by petitioners was dated, signed
and written by him in his own handwriting. Except on the ground of preterition, private
respondents did not raise any issue as regards the authenticity of the document.
The document, entitled Kasulatan ng Pag-Aalis ng Mana, unmistakably showed Segundo's
intention of excluding his eldest son, Alfredo, as an heir to his estate for the reasons that he
cited therein. In effect, Alfredo was disinherited by Segundo.
For disinheritance to be valid, Article 916 of the Civil Code requires that the same must be
effected through a will wherein the legal cause therefor shall be specified. With regard to the
reasons for the disinheritance that were stated by Segundo in his document, the Court believes
that the incidents, taken as a whole, can be considered a form of maltreatment of Segundo by
his son, Alfredo, and that the matter presents a sufficient cause for the disinheritance of a child
or descendant under Article 919 of the Civil Code:

Article 919. The following shall be sufficient causes for the disinheritance of children and
descendants, legitimate as well as illegitimate:
(1) When a child or descendant has been found guilty of an attempt against the life of the
testator, his or her spouse, descendants, or ascendants;
(2) When a child or descendant has accused the testator of a crime for which the law prescribes
imprisonment for six years or more, if the accusation has been found groundless;
(3) When a child or descendant has been convicted of adultery or concubinage with the spouse
of the testator;

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(4) When a child or descendant by fraud, violence, intimidation, or undue influence causes the
testator to make a will or to change one already made;
(5) A refusal without justifiable cause to support the parents or ascendant who disinherit such
child or descendant;
(6) Maltreatment of the testator by word or deed, by the child or descendant; 8
(7) When a child or descendant leads a dishonorable or disgraceful life;
(8) Conviction of a crime which carries with it the penalty of civil interdiction.
Now, the critical issue to be determined is whether the document executed by Segundo can be
considered as a holographic will.
A holographic will, as provided under Article 810 of the Civil Code, must be entirely written,
dated, and signed by the hand of the testator himself. It is subject to no other form, and may
be made in or out of the Philippines, and need not be witnessed.
Segundo's document, although it may initially come across as a mere disinheritance instrument,
conforms to the formalities of a holographic will prescribed by law. It is written, dated and
signed by the hand of Segundo himself. An intent to dispose mortis causa 9 can be clearly
deduced from the terms of the instrument, and while it does not make an affirmative
disposition of the latter's property, the disinheritance of Alfredo, nonetheless, is an act of
disposition in itself. In other words, the disinheritance results in the disposition of the property
of the testator Segundo in favor of those who would succeed in the absence of Alfredo. 10
Moreover, it is a fundamental principle that the intent or the will of the testator, expressed in
the form and within the limits prescribed by law, must be recognized as the supreme law in
succession. All rules of construction are designed to ascertain and give effect to that intention.
It is only when the intention of the testator is contrary to law, morals, or public policy that it
cannot be given effect. 11
Holographic wills, therefore, being usually prepared by one who is not learned in the law, as
illustrated in the present case, should be construed more liberally than the ones drawn by an
expert, taking into account the circumstances surrounding the execution of the instrument and
the intention of the testator. 12 In this regard, the Court is convinced that the document, even
if captioned as Kasulatan ng Pag-Aalis ng Mana, was intended by Segundo to be his last
testamentary act and was executed by him in accordance with law in the form of a holographic
will. Unless the will is probated, 13 the disinheritance cannot be given effect. 14
With regard to the issue on preterition, 15 the Court believes that the compulsory heirs in the
direct line were not preterited in the will. It was, in the Court's opinion, Segundo's last
expression to bequeath his estate to all his compulsory heirs, with the sole exception of Alfredo.
Also, Segundo did not institute an heir 16 to the exclusion of his other compulsory heirs. The
mere mention of the name of one of the petitioners, Virginia, in the document did not operate
to institute her as the universal heir. Her name was included plainly as a witness to the
altercation between Segundo and his son, Alfredo. HSEIAT
Considering that the questioned document is Segundo's holographic will, and that the law
favors testacy over intestacy, the probate of the will cannot be dispensed with. Article 838 of
the Civil Code provides that no will shall pass either real or personal property unless it is proved

184

and allowed in accordance with the Rules of Court. Thus, unless the will is probated, the right
of a person to dispose of his property may be rendered nugatory. 17
In view of the foregoing, the trial court, therefore, should have allowed the holographic will to
be probated. It is settled that testate proceedings for the settlement of the estate of the
decedent take precedence over intestate proceedings for the same purpose. 18
WHEREFORE, the petition is GRANTED. The Orders of the Regional Trial Court of Manila, Branch
21, dated August 10, 1999 and October 14, 1999, are set aside. Respondent judge is directed
to reinstate and hear SP Proc. No. 99-93396 for the allowance of the holographic will of
Segundo Seangio. The intestate case or SP. Proc. No. 98-90870 is hereby suspended until the
termination of the aforesaid testate proceedings.
No costs.

SO ORDERED.
||| (Dy Yieng Seangio v. Reyes, G.R. Nos. 140371-72, November 27, 2006)

No prescirption
[G.R. No. 48840. December 29, 1943.]
ERNESTO M. GUEVARA, petitioner-appellant, vs. ROSARIO GUEVARA and her husband
PEDRO BUISON, respondents-appellees.

Primicias, Abad, Mencias & Castillo for appellant.

Pedro C. Quinto for appellees.

SYLLABUS
1. WILLS; PRESENTATION OF WILL FOR PROBATE IS MANDATORY; SETTLEMENT OF ESTATE
ON BASIS OF INTESTACY WHEN DECEDENT LEFT A WILL, AGAINST THE LAW. We hold that
under section 1 of Rule 74, in relation to Rule 76, if the decedent left a will and no debts and
the heirs and legatees desire to make an extrajudicial partition of the estate, they must first
present that will to the court for probate and divide the estate in accordance with the will. They
may not disregard the provisions of the will unless those provisions are contrary to law. Neither
may they do away with the presentation of the will to the court for probate, because such
suppression of the will is contrary to law and public policy. The law enjoins the probate of the
will and public policy requires it, because unless the will is probated and notice thereof given to
the whole world, the right of a person to dispose of his property by will may be rendered
nugatory, as is attempted to be done in the instant case. Absent legatees and devisees, or such
of them as may have no knowledge of the will, could be cheated of their inheritance thru the
collusion of some of the heirs who might agree to the partition of the estate among themselves
to the exclusion of others.
2. ID.; ID.; ID. Even if the decedent left no debts and nobody raises any question as to the
authenticity and due execution of the will, none of the heirs may sue for the partition of the
estate in accordance with that will without first securing its allowance or probate of the court:
first, because the law expressly provides that "no will shall pass either real or personal estate
unless it is proved and allowed in the proper court"; and, second, because the probate of a will,
which is a proceeding in rem, cannot be dispensed with and substituted by any other
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proceeding, judicial or extrajudicial, without offending against public policy designed to

effectuate the testator's right to dispose of his property by will in accordance with law and to
protect the rights of the heirs and legatees under the will thru the means provided by law,
among which are the publication and the personal notices to each and all of said heirs and
legatees. Nor may the court approve and allow the will presented in evidence in such an action
for partition, which is one in personam, any more than it could decree the registration under
the Torrens system of the land involved in an ordinary action for reivindicacion or partition.
3. TORRENS REGISTRATION; REGISTRATION DOES NOT AFFECT RIGHTS OF PARTITION
BETWEEN LEGATEES. It results that the interested parties consented to the registration of
the land in question in the name of E. M. G. alone subject to the implied trust on account of
which he is under obligation to deliver and convey to them their corresponding shares after all
the debts of the original owner of said land had been paid. Such finding does not constitute a
reversal of the decision and decree of registration, which merely confirmed the petitioner's title;
and in the absence of any intervening innocent third party, the petitioner may be compelled to
fulfill the promise by virtue of which he acquired his title. That is authorized by section 70 of the
Land Registration Act, cited by the Court of Appeals, and by the decision of this Court in
Severino vs. Severino, 44 Phil., 343, and the cases therein cited.
DECISION
OZAETA, J p:
Ernesto M. Guevara and Rosario Guevara, legitimate son and natural daughter, respectively, of
the deceased Victorino L. Guevara, are litigating here over their inheritance from the latter. The
action was commenced on November 12, 1937, by Rosario Guevara to recover from Ernesto
Guevara what she claims to be her strict ligitime as an acknowledged natural daughter of the
deceased to wit, a portion of 423,492 square meters of a large parcel of land described in
original certificate of title No. 51691 of the province of Pangasinan, issued in the name of
Ernesto M. Guevara and to order the latter to pay her P6,000 plus P2,000 a year as damages
for withholding such legitime from her. The defendant answered the complaint contending that
whatever right or rights the plaintiff might have had, had been barred by the operation of law.
It appears that on August 26, 1931, Victorino L. Guevara executed a will (exhibit A), apparently
with all the formalities of the law, wherein he made the following bequests: To his stepdaughter
Candida Guevara, a pair of earrings worth P150 and a gold chain worth P40; to his son Ernesto
M. Guevara, a gold ring worth P180 and all the furniture, pictures, statues, and other religious
objects found in the residence of the testator in Poblacion Sur, Bayambang, Pangasinan; "a mi
hija Rosario Guevara," a pair of earrings worth P120; to his stepson Pio Guevara, a ring worth
P120; and to his wife by second marriage, Angustia Posadas, various pieces of jewelry worth
P1,020.
He also made the following devises: "A mis hijos Rosario Guevara y Ernesto M. Guevara y a mis
hijastros, Vivencio, Eduviges, Dionisia, Candida y Pio, apellidados Guevara," a residential lot
with its improvements situate in the town of Bayambang, Pangasinan, having an area of 960
square meters and assessed at P540; to his wife Angustia Posadas he confirmed the
donation propter nuptias theretofore made by him to her of a portion of 25 hectares of the
large parcel of land of 259-odd hectares described in plan Psu-66618. He also devised to her a
portion of 5 hectares of the same parcel of land by way of complete settlement of her
usufructuary right.
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He set aside 100 hectares of the same parcel of land to be disposed of either by him during his
lifetime or by his attorney-in-fact Ernesto M. Guevara in order to pay all his pending debts and
to defray his expenses and those of his family up to the time of his death.
The remander of said parcel of land he disposed of in the following manner:
"(d). Toda la porcion restante de mi terreno arriba descrito, de la extension superficial
aproximada de ciento veintinueve (129) hectareas setenta (70) areas, y veinticinco (25)
centiareas, con todas sus mejoras existentes en la misma, dejo y distribuyo, pro-indiviso, a mis
siguientes herederos como sigue:
"A mi hijo legitimo, Ernesto M. Guevara, ciento ocho (108) hectareas, ocho (8) areas y
cincuenta y cuatro (54) centiareas, hacia la parte que colinda al Oeste de las cien (100)
hectareas referidas en el inciso (a) de este parrafo del testamento, como su propiedad absoluta
y exclusiva, en la cual extension superficial estan incluidas cuarenta y tres (43) hectareas,
veintitres (23) areas y cuarenta y dos (42) centiareas que le doy en concepto de mejora.
"A mi hija natural reconocida, Rosario Guevara, veintiun (21) hectareas, sesenta y un (61) areas
y setenta y un (71) centiareas, que es la parte restante.
"Duodecimo. Nombro por la presente como Albacea Testamentario a mi hijo Ernesto M.
Guevara, con relevacion de fianza. Y una vez legalizado este testamento, y en cuanto sea
posible, es mi deseo, que los herederos y legatarios aqui nombrados se repartan
extrajudicialmente mis bienes de conformidad con mis disposiciones arriba consignadas."
Subsequently, and on July 12, 1933, Victorino L. Guevara executed a deed of sale (exhibit 2) in
favor of Ernesto M. Guevara whereby he conveyed to him the southern half of the large parcel
of land of which he had theretofore disposed by the will above mentioned, in consideration of
the sum of P1 and other valuable considerations, among which were the payment of all his
debts and obligations amounting to not less than P16,500, his maintenance up to his death, and
the expenses of his last illness and funeral expenses. As to the northern half of the same parcel
of land, he declared: "Hago constar tambien que reconozco a mi referido hijo Ernesto M.
Guevara como dueo de la mitad norte de la totalidad y conjunto de los referidos terrenos por
haberlos comprado de su propio peculio del Sr. Rafael T. Puzon a quien habia vendido con
anterioridad."
On September 27, 1933, final decree of registration was issued in land registration case No.
15174 of the Court of First Instance of Pangasinan, and pursuant thereto original certificate of
title No. 51691 of the same province was issued on October 12 of the same year in favor of
Ernesto M. Guevara over the whole parcel of land described in the deed of sale above referred
to. The registration proceeding had been commenced on November 1, 1932, by Victorino L.
Guevara and Ernesto M. Guevara as applicants, with Rosario, among others, as oppositor; but
before the trial of the case Victorino L. Guevara withdrew as applicant and Rosario Guevara and
her co-oppositors also withdrew their opposition, thereby facilitating the issuance of the title in
the name of Ernesto M. Guevara alone.
On September 27, 1933, Victorino L. Guevara died. His last will and testament, however, was
never presented to the court for probate, nor has any administration proceeding ever been
instituted for the settlement of his estate. Whether the various legatees mentioned in the will
have received their respective legacies or have even been given due notice of the execution of
said will and of the dispositions therein made in their favor, does not affirmatively appear from
the record of this case. Ever since the death of Victorino L. Guevara, his only legitimate son
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Ernesto M. Guevara appears to have possessed the land adjudicated to him in the registration
proceeding and to have disposed of various portions thereof for the purpose of paying the
debts left by his father.
In the meantime Rosario Guevara, who appears to have had her father's last will and testament
in her custody, did nothing judicially to invoke the testamentary dispositions made therein in
her favor, whereby the testator acknowledged her as his natural daughter and, aside from
certain legacies and bequests, devised to her a portion of 21.6171 hectares of the large parcel
of land described in the will. But a little over four years after the testator's demise, she (assisted
by her husband) commenced the present action against Ernesto M. Guevara alone for the
purpose hereinbefore indicated; and it was only during the trial of this case that she presented
the will to the court, not for the purpose of having it probated but only to prove that the
deceased Victorino L. Guevara had acknowledged her as his natural daughter. Upon that proof
of acknowledgment she claimed her share of the inheritance from him, but on the theory or
assumption that he died intestate, because the will had not been probated, for which reason,
she asserted, the betterment therein made by the testator in favor of his legitimate son Ernesto
M. Guevara should be disregarded. Both the trial court and the Court of Appeals sustained that
theory.

Two principal questions are before us for determination: (1) the legality of the procedure
adopted by the plaintiff (respondent herein) Rosario Guevara; and (2) the efficacy of the deed
of sale exhibit 2 and the effect of the certificate of title issued to the defendant (petitioner
herein) Ernesto M. Guevara.
I
We cannot sanction the procedure adopted by the respondent Rosario Guevara, it being in our
opinion in violation of procedural law and an attempt to circumvent and disregard the last will
and testament of the decedent. The Code of Civil Procedure, which was in force up to the time
this case was decided by the trial court, contains the following pertinent provisions:
"Sec. 625. Allowance Necessary, and Conclusive as to Execution. No will shall pass either the
real or personal estate, unless it is proved and allowed in the Court of First Instance, or by
appeal to the Supreme Court; and the allowance by the court of a will of real and personal
estate shall be conclusive as to its due execution.
"Sec. 626. Custodian of Will to Deliver. The person who has the custody of a will shall, within
thirty days after he knows of the death of the testator, deliver the will into the court which has
jurisdiction, or to the executor named in the will.
"Sec. 627. Executor to Present Will and Accept or Refuse Trust. A person named as executor
in a will, shall within thirty days after he knows of the death of the testator, or within thirty days
after he knows that he is named executor, if he obtained such knowledge after knowing of the
death of the testator, present such will to the court which has jurisdiction, unless the will has
been otherwise returned to said court, and shall, within such period, signify to the court his
acceptance of the trust, or make known in writing his refusal to accept it.
"Sec. 628. Penalty. A person who neglects any of the duties required in the two preceding
sections, unless he gives a satisfactory excuse to the court, shall be subject to a fine not
exceeding one thousand dollars.
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"Sec. 629. Person Retaining Will may be Committed. If a person having custody of a will
after the death of the testator neglects without reasonable cause to deliver the same to the
court having jurisdiction, after notice by the court so to do, he may be committed to the prison
of the province by a warrant issued by the court, and there kept in close confinement until he
delivers the will."
The foregoing provisions are now embodied in Rule 76 of the new Rules of Court, which took
effect on July 1, 1940.
The proceeding for the probate of a will is one in rem, with notice by publication to the whole
world and with personal notice to each of the known heirs, legatees, and devisees of the
testator (section 630, C. C. P., and sections 3 and 4, Rule 77). Altho not contested (section 5,
Rule 77), the due execution of the will and the fact that the testator at the time of its execution
was of sound and disposing mind and not acting under duress, menace, and undue influence or
fraud, must be proved to the satisfaction of the court, and only then may the will be legalized
and given effect by means of a certificate of its allowance, signed by the judge and attested by
the seal of the court; and when the will devises real property, attested copies thereof and of the
certificate of allowance must be recorded in the register of deeds of the province in which the
land lies. (Section 12, Rule 77, and section 624, C. C. P.)
It will readily be seen from the above provisions of the law that the presentation of a will to the
court for probate is mandatory and its allowance by the court is essential and indispensable to
its efficacy. To assure and compel the probate of a will, the law punishes a person who neglects
his duty to present it to the court with a fine not exceeding P2,000, and if he should persist in
not presenting it, he may be committed to prison and kept there until he delivers the will.
The Court of Appeals took express notice of these requirements of the law and held that a will,
unless probated, is ineffective. Nevertheless it sanctioned the procedure adopted by the
respondent for the following reasons:
"The majority of the Court is of the opinion that if this case is dismissed ordering the filing of
testate proceedings, it would cause injustice, inconvenience, delay, and much expense to the
parties, and that therefore, it is preferable to leave them in the very status which they
themselves have chosen, and to decide their controversy once and for all, since, in a similar
case, the Supreme Court applied that same criterion ( Leao vs. Leao, supra), which is now
sanctioned by section 1 of Rule 74 of the Rules of Court. Besides, section 6 of Rule 124
provides that, if the procedure which the court ought to follow in the exercise of its jurisdiction
is not specifically pointed out by the Rules of Court, any suitable process or mode of procedure
may be adopted which appears most consistent to the spirit of the said Rules. Hence, we
declare the action instituted by the plaintiff to be in accordance with law."
Let us look into the validity of these considerations. Section 1 of Rule 74 provides as follows:
"Section 1. Extrajudicial settlement by agreement between heirs. If the decedent left no
debts and the heirs and legatees are all of age, or the minors are represented by their judicial
guardians, the parties may, without securing letters of administration, divide the estate among
themselves as they see fit by means of a public instrument filed in the office of the register of
deeds, and should they disagree, they may do so in an ordinary action of partition. If there is
only one heir or one legatee, he may adjudicate to himself the entire estate by means of an
affidavit filed in the office of the register of deeds. It shall be presumed that the decedent left
no debts if no creditor files a petition for letters of administration within two years after the
death of the decedent."
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That is a modification of section 596 of the Code of Civil Procedure, which reads as follows:

"Sec. 596. Settlement of Certain Intestates Without Legal Proceedings. Whenever all the
heirs of a person who died intestate are of lawful age and legal capacity and there are no debts
due from the estate, or all the debts have been paid the heirs may, by agreement duly
executed in writing by all of them, and not otherwise, apportion and divide the estate among
themselves, as they may see fit, without proceedings in court."
The implication is that by the omission of the word "intestate" and the use of the word
"legatees" in section 1 of Rule 74, a summary extrajudicial settlement of a deceased person's
estate, whether he died testate or intestate, may be made under the conditions specified. Even
if we give retroactive effect to section 1 of Rule 74 and apply it here, as the Court of Appeals
did, we do not believe it sanctions the nonpresentation of a will for probate and much less the
nullification of such will thru the failure of its custodian to present it to the court for probate; for
such a result is precisely what Rule 76 sedulously provides against. Section 1 of Rule 74 merely
authorizes the extrajudicial or judicial partition of the estate of a decedent "without securing
letters of administration." It does not say that in case the decedent left a will the heirs and
legatees may divide the estate among themselves without the necessity of presenting the will to
the court for probate. The petition to probate a will and the petition to issue letters of
administration are two different things, altho both may be made in the same case. The
allowance of a will precedes the issuance of letters testamentary or of administration (section 4,
Rule 78). One can have a will probated without necessarily securing letters testamentary or of
administration. We hold that under section 1 of Rule 74, in relation to Rule 76, if the decedent
left a will and no debts and the heirs and legatees desire to make an extrajudicial partition of
the estate, they must first present that will to the court for probate and divide the estate in
accordance with the will. They may not disregard the provisions of the will unless those
provisions are contrary to law. Neither may they do away with the presentation of the will to
the court for probate, because such suppression of the will is contrary to law and public policy.
The law enjoins the probate of the will and public policy requires it, because unless the will is
probated and notice thereof given to the whole world, the right of a person to dispose of his
property by will may be rendered nugatory, as is attempted to be done in the instant case.
Absent legatees and devisees, or such of them as may have no knowledge of the will, could be
cheated of their inheritance thru the collusion of some of the heirs who might agree to the
partition of the estate among themselves to the exclusion of others.
In the instant case there is no showing that the various legatees other than the present litigants
had received their respective legacies or that they had knowledge of the existence and of the
provisions of the will. Their right under the will cannot be disregarded, nor may those rights be
obliterated on account of the failure or refusal of the custodian of the will to present it to the
court for probate.
Even if the decedent left no debts and nobody raises any question as to the authenticity and
due execution of the will, none of the heirs may sue for the partition of the estate in accordance
with that will without first securing its allowance or probate by the court, first, because the law
expressly provides that "no will shall pass either real or personal estate unless it is proved and
allowed in the proper court"; and, second, because the probate of a will, which is a
proceeding in rem, cannot be dispensed with and substituted by any other proceeding, judicial
or extrajudicial, without offending against public policy designed to effectuate the testator's
right to dispose of his property by will in accordance with law and to protect the rights of the
heirs and legatees under the will thru the means provided by law, among which are the
190

publication and the personal notices to each and all of said heirs and legatees. Nor may the
court approve and allow the will presented in evidence in such an action for partition, which is
one in personam, any more than it could decree the registration under the Torrens system of
the land involved in an ordinary action for reivindicacion or partition.

We therefore believe and so hold that section 1 of Rule 74, relied upon by the Court of Appeals,
does not sanction the procedure adopted by the respondent.
The case of Leao vs. Leao (25 Phil., 180), cited by the Court of Appeals, like section 1 of Rule
74, sanctions the extrajudicial partition by the heirs of the properties left by a decedent, but not
the nonpresentation of a will for probate. In that case one Paulina Ver executed a will on
October 11, 1902, and died on November 1, 1902. Her will was presented for probate on
November 10, 1902, and was approved and allowed by the Court on August 16, 1904. In the
meantime, and on November 10, 1902, the heirs went ahead and divided the properties among
themselves and some of them subsequently sold and disposed of their shares to third persons.
It does not affirmatively appear in the decision in that case that the partition made by the heirs
was not in accordance with the will or that they in any way disregarded the will. In closing the
case by its order dated September 1, 1911, the trial court validated the partition, and one of the
heirs, Cunegunda Leao, appealed. In deciding the appeal this Court said:
"The principal assignment of error is that the lower court committed an error in deciding that
the heirs and legatees of the estate of Da. Paulina Ver had voluntarily divided the estate
among themselves."
In resolving that question this Court said:

"In view of the positive finding of the judge of the lower court that there had been a voluntary
partition of the estate among the heirs and legatees, and in the absence of positive proof to the
contrary, we must conclude that the lower court had some evidence to support its conclusion."
Thus it will be seen that as a matter of fact no question of law was raised and decided in that
case. That decision cannot be relied upon as an authority for the unprecedented and unheard
of procedure adopted by the respondent whereby she seeks to prove her status as an
acknowledged natural child of the decedent by his will and attempts to nullify and circumvent
the testamentary dispositions made by him by not presenting the will to the court for probate
and by claiming her legitime as an acknowledged natural child on the basis of intestacy; and
that in the face of express mandatory provisions of the law requiring her to present the will to
the court for probate.
In the subsequent case of Riosa vs. Rocha (1926), 48 Phil. 737, this Court departed from the
procedure sanctioned by the trial court and impliedly approved by this Court in the Leao case,
by holding that an extrajudicial partition is not proper in testate succession. In the Riosa case
the Court, speaking thru Chief Justice Avancea, held:
"1. EXTRAJUDICIAL PARTITION; NOT PROPER IN TESTATE SUCCESSION. Section 596 of the
Code of Civil Procedure, authorizing the heirs of a person who died intestate to make
extrajudicial partition of the property of the deceased, without going into any court of justice,
makes express reference to intestate succession, and therefore excludes testate succession.
"2. ID.; EFFECTS OF; TESTATE SUCCESSION. In the instant case, which is a testate
succession, the heirs made an extrajudicial partition of the estate and at the same time
191

instituted proceeding for the probate of the will and the administration of the estate. When the
time came for making the partition, they submitted to the court the extrajudicial partition
previously made by them, which the court approved. Held: That for the purposes of the
reservation and the rights and obligations created thereby, in connection with the relatives
benefited, the property must not be deemed transmitted to the heirs from the time the
extrajudicial partition was made, but from the time said partition was approved by the court."
(Syllabus.)
The Court of Appeals also cites section 6 of Rule 124, which provides that if the procedure
which the court ought to follow in the exercise of its jurisdiction is not specifically pointed out
by the Rules of Court, any suitable process or mode of proceeding may be adopted which
appears most conformable to the spirit of the said Rules. That provision is not applicable here
for the simple reason that the procedure which the court ought to follow in the exercise of its
jurisdiction is specifically pointed out and prescribed in detail by Rules 74, 76, and 77 of the
Rules of Court.
The Court of Appeals also said "that if this case is dismissed, ordering the filing of testate
proceedings, it would cause injustice, inconvenience, delay, and much expense to the parties."
We see no injustice in requiring the plaintiff not to violate but to comply with the law. On the
contrary, an injustice might be committed against the other heirs and legatees mentioned in the
will if the attempt of the plaintiff to nullify said will by not presenting it to the court for probate
should be sanctioned. As to the inconvenience, delay, and expense, the plaintiff herself is to
blame because she was the custodian of the will and she violated the duty imposed upon her by
sections 2, 4, and 5 of Rule 76, which command her to deliver said will to the court on pain of a
fine not exceeding P2,000 and of imprisonment for contempt of court. As for the defendant, he
is not complaining of inconvenience, delay, and expense, but on the contrary he is insisting that
the procedure prescribed by law be followed by the plaintiff.
Our conclusion is that the Court of Appeals erred in declaring the action instituted by the
plaintiff to be in accordance with law. It also erred in awarding relief to the plaintiff in this
action on the basis of intestacy of the decedent notwithstanding the proven existence of a will
left by him and solely because said will has not been probated due to the failure of the plaintiff
as custodian thereof to comply with the duty imposed upon her by the law.
It is apparent that the defendant Ernesto M. Guevara, who was named executor in said will, did
not take any step to have it presented to the court for probate and did not signify his
acceptance of the trust or refusal to accept it as required by section 3 of Rule 76 (formerly
section 627 of the Code of Civil Procedure), because his contention is that said will, insofar as
the large parcel of land in litigation is concerned, has been superseded by the deed of sale
exhibit 2 and by the subsequent issuance of the Torrens certificate of title in his favor.
II
This brings us to the consideration of the second question, referring to the efficacy of the deed
of sale exhibit 2 and the effect of the certificate of title issued to the defendant Ernesto M.
Guevara. So that the parties may not have litigated here in vain insofar as that question is
concerned, we deem it proper to decide it now and obviate the necessity of a new action.
The deed of sale exhibit 2 executed by and between Victorino L. Guevara and Ernesto M.
Guevara before a notary public on July 12, 1933, may be divided into two parts: (a) insofar as it
disposes of and conveys to Ernesto M. Guevara the southern half of Victorino L. Guevara's
hacienda of 259-odd hectares in consideration of P1 and other valuable considerations therein
192

mentioned; and (b) insofar as it declares that Ernesto M. Guevara became the owner of the
northern half of the same hacienda by repurchasing it with his own money from Rafael T.
Puzon.
A. As to the conveyance of the southern half of the hacienda to Ernesto M. Guevara in
consideration of the latter's assumption of the obligation to pay all the debts of the deceased,
the Court of Appeals found it to be valid and efficacious because: "(a) it has not been proven
that the charges imposed as a condition is [are] less than the value of the property; and (b)
neither has it been proven that the defendant did not comply with the conditions imposed upon
him in the deed of transfer." As a matter of fact the Court of Appeals found: "It appears that
the defendant has been paying the debts left by his father. To accomplish this, he had to
alienate considerable portions of the above-mentioned land. And we cannot brand such
alienation as anomalous unless it is proven that they have exceeded the value of what he has
acquired by virtue of the deed of July 12, 1933, and that of his corresponding share in the
inheritance." The finding of the Court of Appeals on this aspect of the case is final and
conclusive upon the respondent, who did not appeal therefrom.

B. With regard to the northern half of the hacienda, the findings of fact and of law made by the
Court of Appeals are as follows:
"The defendant has tried to prove that with his own money, he bought from Rafael Puzon onehalf of the land in question, but the Court a quo, after considering the evidence, found it not
proven; we hold that such conclusion is well founded. The acknowledgment by the deceased,
Victorino L. Guevara, of the said transactions, which was inserted incidentally in the document
of July 12, 1933, is clearly belied by the fact that the money paid to Rafael Puzon came from
Silvestre P. Coquia, to whom Victorino L. Guevara had sold a parcel of land with the right of
repurchase. The defendant, acting for his father, received the money and delivered it to Rafael
Puzon to redeem the land in question, and instead of executing a deed of redemption in favor
of Victorino L. Guevara, the latter executed a deed of sale in favor of the defendant.
"The plaintiff avers that she withdrew her opposition to the registration of the land in the name
of the defendant, because of the latter's promise that after paying all the debts of their father,
he would deliver to her and to the widow their corresponding shares. As their father then was
still alive, there was no reason to require the delivery of her share and that was why she did not
insist on her opposition, trusting on the reliability and sincerity of her brother's promise. The
evidence shows that such promise was really made. The registration of land under the Torrens
system does not have the effect of altering the laws of succession, or the rights of partition
between coparceners, joint tenants, and other cotenants nor does it change or affect in any
other way any other rights and liabilities created by law and applicable to unregistered land
(sec. 70, Land Registration Law). The plaintiff is not, then, in estoppel, nor can the doctrine
of res judicata be invoked against her claim. Under these circumstances, she has the right to
compel the defendant to deliver her corresponding share in the estate left by the deceased,
Victorino L. Guevara."

In his tenth to fourteenth assignments of error the petitioner assails the foregoing findings of
the Court of Appeals. But the findings of fact made by said court are final and not reviewable by
us on certiorari. The Court of Appeals found that the money with which the petitioner
repurchased the northern half of the land in question from Rafael Puzon was not his own but
his father's, it being the proceeds of the sale of a parcel of land made by the latter to Silvestre
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P. Coquia. Said court also found that the respondent withdrew her opposition to the registration
of the land in the name of the petitioner upon the latter's promise that after paying all the debts
of their father he would deliver to her and to the widow their corresponding shares. From these
facts, it results that the interested parties consented to the registration of the land in question
in the name of Ernesto M. Guevara alone subject to the implied trust on account of which he is
under obligation to deliver and convey to them their corresponding shares after all the debts of
the original owner of said land had been paid. Such finding does not constitute a reversal of the
decision and decree of registration, which merely confirmed the petitioner's title; and in the
absence of any intervening innocent third party, the petitioner may be compelled to fulfill the
promise by virtue of which he acquired his title. That is authorized by section 70 of the Land
Registration Act, cited by the Court of Appeals, and by the decision of this Court in Severino vs.
Severino, 44 Phil., 343, and the cases therein cited.
Upon this phase of the litigation, we affirm the finding of the Court of Appeals that the northern
half of the land described in the will exhibit A and in original certificate of title No. 51691 still
belongs to the estate of the deceased Victorino L. Guevara. In the event the petitioner Ernesto
M. Guevara has alienated any portion thereof, he is under obligation to compensate the estate
with an equivalent portion from the southern half of said land that has not yet been sold. In
other words, to the estate of Victorino L. Guevara still belongs one half of the total area of the
land described in said original certificate of title, to be taken from such portions as have not yet
been sold by the petitioner, the other half having been lawfully acquired by the latter in
consideration of his assuming the obligation to pay all the debts of the deceased.
Wherefore, that part of the decision of the Court of Appeals which declares in effect that
notwithstanding exhibit 2 and the issuance of original certificate of title No. 51691 in the name
of Ernesto M. Guevara, one half of the land described in said certificate of title belongs to the
estate of Victorino L. Guevara and the other half to Ernesto M. Guevara in consideration of the
latter's assumption of the obligation to pay all the debts of the deceased, is hereby affirmed;
but the judgment of said court insofar as it awards any relief to the respondent Rosario
Guevara in this action is hereby reversed and set aside, and the parties herein are hereby
ordered to present the document exhibit A to the proper court for probate in accordance with
law, without prejudice to such action as the provincial fiscal of Pangasinan may take against the
responsible party or parties under section 4 of Rule 76. After the said document is approved
and allowed by the court as the last will and testament of the deceased Victorino L. Guevara,
the heirs and legatees therein named may take such action, judicial or extrajudicial, as may be
necessary to partition the estate of the testator, taking into consideration the pronouncements
made in part II of this opinion. No finding as to costs in any of the three instances.

||| (Guevara v. Guevara, G.R. No. 48840, December 29, 1943)

Probate during lifetime of the testator

[G.R. No. 129505. January 31, 2000.]
OCTAVIO S. MALOLES II, petitioner, vs. PACITA DE LOS REYES PHILLIPS,respondent.
[G.R. No. 133359. January 31, 2000.]
OCTAVIO S. MALOLES II, petitioner, vs. COURT OF APPEALS, HON. FERNANDO V.
GOROSPE, JR., in his Official Capacity as Presiding Judge of RTC-Makati, Branch 61,
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and PACITA PHILLIPS as the alleged executrix of the alleged will of the late Dr.
Arturo de Santos,respondents.

Dollete Blanco Ejercito and Associates for petitioner.

Rodrigo Berenguer & Guno for private respondent.
SYNOPSIS
Dr. Arturo de Santos, Filipino, and a resident of Makati City, filed a petition for probate of his
will in the Regional Trial Court, Branch 61, Makati, docketed as Sp. Proc. No. M-4223. Dr. De
Santos alleged that he had no compulsory heirs; that he had named in his will as sole legatee
and devisee the Arturo de Santos Foundation, Inc.; that he had disposed by his will his
properties with an approximate value of not less than P2,000,000.00; and that copies of said
will were in the custody of the named executrix, private respondent Pacita delos Reyes Phillips
of RTC-Makati, issued an order granting the petition and allowing the will. Petitioner Octavio S.
Maloles II filed a motion for intervention claiming that as the only child of Alicia de Santos
(testator's sister) and Octavio L. Maloles, Sr., he was the sole full bloodied nephew and nearest
of kin of Dr. De Santos. He also prayed for reconsideration of the order allowing the will and for
the issuance of letters of administration in his name. Private respondent refiled a petition for
the issuance of letters testamentary with the Regional Trial Court, Makati, Branch 65, docketed
as Sp. Proc. No. M-4343. Upon private respondent's motion, Branch 65 issued an order
appointing her as special administrator of Dr. De Santos' estate. Petitioner sought to intervene
in Sp. Proc. No. M-4343 and to set aside the appointment of private respondent as special
administrator. Branch 65 ordered the transfer of Sp. Proc. No. M-4343 to Branch 61 on the
ground that it is related to the case before said Branch 61 and later issued another order
returning the records of the case of Sp. Proc. No. M-4343 on the ground that there was a
pending case involving the Estate of decedent Arturo de Santos before said court. Branch 65
eventually granted petitioner's motion for intervention. On petition for certiorari by private
respondent, the Court of Appeals rendered a decision setting aside the order of Branch 65 on
the ground that petitioner had not shown any right or interest to intervene in Sp. Proc. No. M4343. Hence, the present petition. Petitioner contended that the probate proceedings in Branch
61 did not terminate upon the issuance of the order allowing the will of Dr. De Santos. He
argued that the proceedings must continue until the estate is fully distributed pursuant to
Section l, Rule 73, Rules of Court, and for such reason Branch 65 could not lawfully act upon
private respondent's petition for issuance of letters testamentary; that as the next of kin and
creditor of the testator, he has the right to intervene in the probate proceedings. Petitioner also
contended that private respondent committed forum shopping when she filed the petition for
issuance of letters testamentary, while the probate proceedings were still pending.
The Supreme Court ruled that Branch 65 had jurisdiction over Sp. Proc. No. M-4343 and there
was no basis for the ruling of Branch 65 that the probate proceedings did not cease upon the
allowance or disallowance of a will but continues up to such time that the entire estate of the
testator had been partitioned and distributed. The Court also ruled that even if petitioner is the
next of kin of Dr. De Santos, he cannot be considered as an "heir" because Dr. De Santos has
no compulsory or forced heirs so he may legally dispose his entire estate by will. Petitioner's
contention that private respondent committed forum shopping was also found by the Court
unmeritorious. There was no identity between the two petitions nor was the petition for probate
filed during the pendency of the petition for issuance of letters testamentary. The petition for
probate filed by Dr. De Santos, the testator, was solely for the purpose of authenticating his will
and upon allowance thereof, the proceeding was considered terminated. However, the petition
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for issuance of letters testamentary was filed by private respondent for the purpose of securing
authority from the court to administer the estate and put into effect the will of the testator. Said
proceeding, on the other hand, terminated upon the distribution and delivery of the legacies
and devises named in the will.
SYLLABUS
1. REMEDIAL LAW; SPECIAL PROCEEDINGS; SETTLEMENT OF ESTATES OF DECEASED
PERSONS; VENUE; INSOFAR AS THE VENUE OF PETITIONS FOR PROBATE OF WILLS IS
CONCERNED, IT DOES NOT BAR OTHER BRANCHES OF THE SAME COURT FROM TAKING
COGNIZANCE OF THE SETTLEMENT OF THE ESTATE OF THE TESTATOR AFTER HIS DEATH.
The jurisdiction over probate proceedings and settlement of estates with approximate value of
over P100,000.00 (outside Metro Manila) or P200,000.00 (in Metro Manila) belongs to the
regional trial courts under B.P. Blg. 129, as amended. The different branches comprising each
court in one judicial region do not possess jurisdictions independent of and incompatible with
each other. It is noteworthy that, although Rule 73, 1 applies insofar as the venue of the
petition for probate of the will of Dr. De Santos is concerned, it does not bar other branches of
the same court from taking cognizance of the settlement of the estate of the testator after his
death. As held in the leading case ofBacalso v. Ramolote: The various branches of the Court of
First Instance of Cebu under the Fourteenth Judicial District, are a coordinate and co-equal
courts, and the totality of which is only one Court of First Instance. The jurisdiction is vested in
the court, not in the judges. And when a case is filed in one branch, jurisdiction over the case
does not attach to the branch or judge alone, to the exclusion of the other branches. Trial may
be held or proceedings continue by and before another branch or judge. It is for this reason
that Section 57 of the Judiciary Act expressly grants to the Secretary of Justice, the
administrative right or power to apportion the cases among the different branches, both for the
convenience of the parties and for the coordination of the work by the different branches of the
same court. The apportionment and distribution of cases does not involve a grant or limitation
of jurisdiction, the jurisdiction attaches and continues to be vested in the Court of First Instance
of the province, and the trials may be held by any branch or judge of the court. Necessarily,
therefore, Branch 65 of the RTC of Makati City has jurisdiction over Sp. Proc. No. M-4343.
2. ID.; ID.; PETITIONER HAS NO RIGHT TO INTERVENE AND OPPOSE PETITION FOR
ISSUANCE OF LETTERS TESTAMENTARY BASED ON HIS ALLEGATION THAT HE IS A CREDITOR
OF DECEASED, SINCE TESTATOR INSTITUTED OR NAMED AN EXECUTOR IN HIS WILL AND IT
IS INCUMBENT UPON COURT TO RESPECT DESIRES OF TESTATOR. Under Rule 79, Section
1, it has been held that an "interested person" is one who would be benefited by the estate,
such as an heir, or one who has a claim against the estate, such as a creditor, and whose
interest is material and direct, not merely incidental or contingent. Even if petitioner is the
nearest next of kin of Dr. De Santos, he cannot be considered an "heir" of the testator. It is a
fundamental rule of testamentary succession that one who has no compulsory or forced heirs
may dispose of his entire estate by will. Thus, Art. 842 of the Civil Code provides: One who has
no compulsory heirs may dispose by will of all his estate or any part of it in favor of any person
having capacity to succeed. One who has compulsory heirs may dispose of his estate provided
he does not contravene the provisions of this Code with regard to the legitimate of said heirs.
Compulsory heirs are limited to the testator's (1) Legitimate children and descendants, with
respect to their legitimate parents and ascendants; (2) In default of the foregoing, legitimate
parents and ascendants, with respect to their legitimate children and descendants; (3) The
widow or widower; (4) Acknowledged natural children, and natural children by legal fiction; (5)
Other illegitimate children referred to in Article 287 of the Civil Code. Petitioner, as nephew of
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the testator, is not a compulsory heir who may have been preterited in the testator's will. Nor
does he have any right to intervene in the settlement proceedings based on his allegation that
he is a creditor of the deceased. Since the testator instituted or named an executor in his will, it
is incumbent upon the Court to respect the desires of the testator. As we stated in Ozaeta v.
Pecson: The choice of his executor is a precious prerogative of a testator, a necessary
concomitant of his right to dispose of his property in the manner he wishes. It is natural that
the testator should desire to appoint one of his confidence, one who can be trusted to carry out
his wishes in the disposal of his estate. The curtailment of this right may be considered a
curtailment of the right to dispose. Only if the appointed executor is incompetent, refuses the
trust, or fails to give bond may the court appoint other persons to administer the estate. None
of these circumstances is present in this case. HaSEcA
3. ID.; CIVIL PROCEDURE; FORUM SHOPPING; NOT COMMITTED BY PRIVATE RESPONDENT'S
ACT OF FILING THE PETITION FOR THE ISSUANCE OF LETTERS TESTAMENTARY WHILE THE
PROBATE PROCEEDINGS WERE STILL PENDING IN ANOTHER COURT; THERE IS NO IDENTITY
BETWEEN THE TWO PETITIONS, NOR WAS THE LATTER FILED DURING THE PENDENCY OF
THE FORMER. Petitioner contends that private respondent is guilty of forum shopping when
she filed the petition for issuance of letters testamentary (Sp. Proc. No. M-4343) while the
probate proceedings (Sp. Proc. No. M-4223) were still pending. According to petitioner, there is
identity of parties, rights asserted, and reliefs prayed for in the two actions which are founded
on the same facts, and a judgment in either will result in res judicata in the other. This
contention has no merit. As stated earlier, the petition for probate was filed by Dr. De Santos,
the testator, solely for the purpose of authenticating his will. Upon the allowance of his will, the
proceedings were terminated. On the other hand, the petition for issuance of letters
testamentary was filed by private respondent, as executor of the estate of Dr. De Santos, for
the purpose of securing authority from the Court to administer the estate and put into effect
the will of the testator. The estate settlement proceedings commenced by the filing of the
petition terminates upon the distribution and delivery of the legacies and devises to the persons
named in the will. Clearly, there is no identity between the two petitions, nor was the latter filed
during the pendency of the former. There was, consequently, no forum shopping.

DECISION
MENDOZA, J p:
These are petitions for review on certiorari of the decisions of the Thirteenth and the Special
Eight Divisions of the Court of Appeals which ruled that petitioner has no right to intervene in
the settlement of the estate of Dr. Arturo de Santos. The cases were consolidated considering
that they involve the same parties and some of the issues raised are the same. LibLex
The facts which gave rise to these two petitions are as follows:
On July 20, 1995, Dr. Arturo de Santos, Filipino and a resident of Makati City, filed a petition for
probate of his will 1 in the Regional Trial Court, Branch 61, Makati, docketed as Sp. Proc. No.
M-4223. In his petition, Dr. De Santos alleged that he had no compulsory heirs; that he had
named in his will as sole legatee and devisee the Arturo de Santos Foundation, Inc.; that he
disposed by his will his properties with an approximate value of not less than P2,000,000.00;
and that copies of said will were in the custody of the named executrix, private respondent
Pacita de los Reyes Phillips. A copy of the will 2 was annexed to the petition for probate.
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On February 16, 1996, Judge Fernando V. Gorospe, Jr. of RTC-Makati, Branch 61 issued an
order granting the petition and allowing the will. The order reads:
On 03 August 1995, the Court issued an Order setting the hearing of the petition on 12
September 1995, at 8:30 o'clock in the morning, copies of which were served to Arturo de
Santos Foundation, Inc. and Ms. Pacita de los Reyes Phillips (Officer's Return, dated 04
September 1995 attached to the records). When the case was called for hearing on the date
set, no oppositor appeared nor any written opposition was ever filed and on motion of
petitioner, he was allowed to adduce his evidence in support of the petition.
Petitioner personally appeared before this Court and was placed on the witness stand and was
directly examined by the Court through "free wheeling" questions and answers to give this
Court a basis to determine the state of mind of the petitioner when he executed the subject
will. After the examination, the Court is convinced that petitioner is of sound and disposing
mind and not acting on duress, menace and undue influence or fraud, and that petitioner
signed his Last Will and Testament on his own free and voluntary will and that he was neither
forced nor influenced by any other person in signing it.
Furthermore, it appears from the petition and the evidence adduced that petitioner in his
lifetime, executed his Last Will and Testament (Exhs. "A", "A-1", "A-2", "A-4", "A-5") at his
residence situated at 9 Bauhinia corner Intsia Streets, Forbes Park, Makati City; said Last Will
and Testament was signed in the presence of his three (3) witnesses, namely, to wit: Dr.
Elpidio Valencia (Exhs. "A-6", "A-7", "A-8", "A-16", "A-16-A"), Atty. Edward J. Berenguer (Exhs.
"A-3", "A-3-A", "A-9", "A-10", & "A-11"), and Atty. Victoria C. delos Reyes (Exhs. "A-12", "A-13",
"A-14", "A-17", & "A-18"), who in turn, in the presence of the testator and in the presence of
each and all of the witnesses signed the said Last Will and Testament and duly notarized before
Notary Public Anna Melissa L. Rosario (Exh. "A-15"); on the actual execution of the Last Will
and Testament, pictures were taken (Exhs. "B" to "B-3").
Petitioner has no compulsory heirs and Arturo de Santos Foundation, Inc., with address at No. 9
Bauhinia corner Intsia Streets, Forbes Park, Makati City has been named as sole legatee and
devisee of petitioner's properties, real and personal, approximately valued at not less than P2
million, Ms. Pacita de los Reyes Phillips was designated as executor and to serve as such
without a bond.
From the foregoing facts, the Court finds that the petitioner has substantially established the
material allegations contained in his petition. The Last Will and Testament having been
executed and attested as required by law; that testator at the time of the execution of the will
was of sane mind and/or not mentally incapable to make a Will; nor was it executed under
duress or under the influence of fear or threats; that it was in writing and executed in the
language known and understood by the testator duly subscribed thereof and attested and
subscribed by three (3) credible witnesses in the presence of the testator and of another; that
the testator and all the attesting witnesses signed the Last Will and Testament freely and
voluntarily and that the testator has intended that the instrument should be his Will at the time
of affixing his signature thereto.
WHEREFORE, as prayed for by the petitioner (testator himself) the petition for the allowance of
the Last Will and Testament of Arturo de Santos is hereby APPROVED and ALLOWED.
Shortly after the probate of his will, Dr. De Santos died on February 26, 1996.

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On April 3, 1996, petitioner Octavio S. Maloles II filed a motion for intervention claiming that, as
the only child of Alicia de Santos (testator's sister) and Octavio L. Maloles, Sr., he was the sole
full-blooded nephew and nearest of kin of Dr. De Santos. He likewise alleged that he was a
creditor of the testator. Petitioner thus prayed for the reconsideration of the order allowing the
will and the issuance of letters of administration in his name.
On the other hand, private respondent Pacita de los Reyes Phillips, the designated executrix of
the will, filed a motion for the issuance of letters testamentary with Branch 61. Later, however,
private respondent moved to withdraw her motion. This was granted, while petitioner was
required to file a memorandum of authorities in support of his claim that said court (Branch 61)
still had jurisdiction to allow his intervention. 3
Petitioner filed his memorandum of authorities on May 13, 1996. On the other hand, private
respondent, who earlier withdrew her motion for the issuance of letters testamentary in Branch
61, refiled a petition for the same purpose with the Regional Trial Court, Makati, which was
docketed as Sp. Proc. No. M-4343 and assigned to Branch 65.
Upon private respondent's motion, Judge Salvador Abad Santos of Branch 65 issued an order,
dated June 28, 1996, appointing her as special administrator of Dr. De Santos's estate. cda
On July 29, 1996, petitioner sought to intervene in Sp. Proc. No. M-4343 and to set aside the
appointment of private respondent as special administrator. He reiterated that he was the sole
and full-blooded nephew and nearest of kin of the testator; that he came to know of the
existence of Sp. Proc. No. M-4343 only by accident; that the probate proceedings in Sp. Proc.
No. M-4223 before Branch 61 of the same court was still pending; that private respondent
misdeclared the true worth of the testator's estate; that private respondent was not fit to be the
special administrator of the estate; and that petitioner should be given letters of administration
for the estate of Dr. De Santos.
On August 28, 1996, Judge Abad Santos ordered the transfer of Sp. Proc. No. M-4343 to Branch
61, on the ground that "[it] is related to the case before Judge Gorospe of RTC Branch 61 . . ."
It appears, however, that in Sp. Proc. No. M-4223, Judge Gorospe had denied on August 26,
1996 petitioner's motion for intervention. Petitioner brought this matter to the Court of Appeals
which, in a decision 4 promulgated on February 13, 1998, upheld the denial of petitioner's
motion for intervention.
Meanwhile, Judge Gorospe issued an order, dated September 4, 1996, returning the records of
Sp. Proc. No. M-4343 to Branch 65 on the ground that there was a pending case involving the
Estate of Decedent Arturo de Santos pending before said court. The order reads:
Acting on the ORDER dated 28 August 1996 of Branch 65, this Court, transferring this case to
this Branch 61 on the ground that this case is related with a case before this Court, let this case
be returned to Branch 65 with the information that there is no related case involving the
ESTATE OF DECEDENT ARTURO DE SANTOS pending before this Branch.
There is, however, a case filed by ARTURO DE SANTOS, as petitioner under Rule 76 of the
Rules of Court for the Allowance of his will during his lifetime docketed as SP. PROC. NO. M4223 which was already decided on 16 February 1996 and has become final.
It is noted on records of Case No. M-4223 that after it became final, herein Petitioner Pacita de
los Reyes Phillips filed a MOTION FOR THE ISSUANCE OF LETTERS TESTAMENTARY, which was
subsequently withdrawn after this Court, during the hearing, already ruled that the motion
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could not be admitted as the subject matter involves a separate case under Rule 78 of the
Rules of Court, and movant withdrew her motion and filed this case (No. 4343).
Octavio de Santos Maloles [II] filed a MOTION FOR INTERVENTION before Case No. M-4223
and this motion was already DENIED in the order (Branch 61) of 26 August 1996 likewise for
the same grounds that the matter is for a separate case to be filed under Rule 78 of the Rules
of Court and cannot be included in this case filed under Rule 76 of the Rules of Court.
It is further noted that it is a matter of policy that consolidation of cases must be approved by
the Presiding Judges of the affected Branches.
Initially, in his decision dated September 23, 1996, 5 Judge Abad Santos appeared firm in his
position that " . . . it would be improper for (Branch 65) to hear and resolve the petition (Sp.
Proc. No. M-4343)," considering that the probate proceedings were commenced with Branch
61. He thus ordered the transfer of the records back to the latter branch. However, he later
recalled his decision and took cognizance of the case "to expedite the proceedings." Thus, in his
Order, dated October 21, 1996, he stated:
Considering the refusal of the Hon. Fernando V. Gorospe Jr. of Branch 61 to continue hearing
this case notwithstanding the fact that said branch began the probate proceedings of the estate
of the deceased and must therefore continue to exercise its jurisdiction to the exclusion of all
others, until the entire estate of the testator had been partitioned and distributed as per Order
dated 23 September 1996, this branch (Regional Trial Court Branch 65) shall take cognizance of
the petition if only to expedite the proceedings, and under the concept that the Regional Trial
Court of Makati City is but one court.

Furnish a copy of this order to the Office of the Chief justice and the Office of the Court
Administrator, of the Supreme Court; the Hon. Fernando V. Gorospe, Jr.; Pacita De Los Reyes
Phillips, Petitioner; and Octavio de Santos Maloles, Intervenor.
On November 4, 1996, Judge Abad Santos granted petitioner's motion for intervention. Private
respondent moved for a reconsideration but her motion was denied by the trial court. She then
filed a petition for certiorari in the Court of Appeals which, on February 26, 1997, rendered a
decision 6 setting aside the trial court's order on the ground that petitioner had not shown any
right or interest to intervene in Sp. Proc. No. M-4343.
Hence, these petitions which raise the following issues:
1. Whether or not the Honorable Regional Trial Court Makati, Branch 61 has lost jurisdiction
to proceed with the probate proceedings upon its issuance of an order allowing the will of Dr.
Arturo de Santos.
2. Whether or not the Honorable (Regional Trial Court Makati, Branch 65) acquired
jurisdiction over the petition for issuance of letters testamentary filed by (private) respondent.
3. Whether or not the petitioner, being a creditor of the late Dr. Arturo de Santos, has a right to
intervene and oppose the petition for issuance of letters testamentary filed by the respondent.
4. Whether or not (private) respondent is guilty of forum shopping in filing her petition for
issuance of letters testamentary with the Regional Trial Court Makati, Branch 65 knowing
fully well that the probate proceedings involving the same testate estate of the decedent is still
pending with the Regional Trial Court Makati, Branch 61. prLL
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First. Petitioner contends that the probate proceedings in Branch 61 of RTC-Makati did not
terminate upon the issuance of the order allowing the will of Dr. De Santos. Citing the cases
of Santiesteban v. Santiesteban 7 and Tagle v. Manalo, 8 he argues that the proceedings must
continue until the estate is fully distributed to the lawful heirs, devisees, and legatees of the
testator, pursuant to Rule 73, 1 of the Rules of Court. Consequently, petitioner contends that
Branch 65 could not lawfully act upon private respondent's petition for issuance of letters
testamentary.
The contention has no merit.
In cases for the probate of wills, it is well-settled that the authority of the court is limited to
ascertaining the extrinsic validity of the will, i.e., whether the testator, being of sound mind,
freely executed the will in accordance with the formalities prescribed by law. 9
Ordinarily, probate proceedings are instituted only after the death of the testator, so much so
that, after approving and allowing the will, the court proceeds to issue letters testamentary and
settle the estate of the testator. The cases cited by petitioner are of such nature. In fact, in
most jurisdictions, courts cannot entertain a petition for probate of the will of a living testator
under the principle of ambulatory nature of wills. 10
However, Art. 838 of the Civil Code authorizes the filing of a petition for probate of the will filed
by the testator himself. It provides:
CIVIL CODE, ART. 838. No will shall pass either real or personal property unless it is proved and
allowed in accordance with the Rules of Court.
The testator himself may, during his lifetime, petition the court having jurisdiction for the
allowance of his will. In such case, the pertinent provisions of the Rules of Court for the
allowance of wills after the testator's death shall govern.
The Supreme Court shall formulate such additional Rules of Court as may be necessary for the
allowance of wills on petition of the testator.
Subject to the right of appeal, the allowance of the will, either during the lifetime of the testator
or after his death, shall be conclusive as to its due execution.
Rule 76, 1 likewise provides:
SEC. 1. Who may petition for the allowance of will. Any executor, devisee, or legatee named
in a will, or any other person interested in the estate, may, at any time after the death of the
testator, petition the court having jurisdiction to have the will allowed, whether the same be in
his possession or not, or is lost or destroyed.
The testator himself may, during his lifetime, petition in the court for the allowance of his will.
The rationale for allowing the probate of wills during the lifetime of testator has been explained
by the Code Commission thus:
Most of the cases that reach the courts involve either the testamentary capacity of the testator
or the formalities adopted in the execution of wills. There are relatively few cases concerning
the intrinsic validity of testamentary dispositions. It is far easier for the courts to determine the
mental condition of a testator during his lifetime than after his death. Fraud, intimidation and
undue influence are minimized. Furthermore, if a will does not comply with the requirements
prescribed by law, the same may be corrected at once. The probate during the testator's life,
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therefore, will lessen the number of contest upon wills. Once a will is probated during the
lifetime of the testator, the only questions that may remain for the courts to decide after the
testator's death will refer to the intrinsic validity of the testamentary dispositions. It is possible,
of course, that even when the testator himself asks for the allowance of the will, he may be
acting under duress or undue influence, but these are rare cases.
After a will has been probated during the lifetime of the testator, it does not necessarily mean
that he cannot alter or revoke the same before his death. Should he make a new will, it would
also be allowable on his petition, and if he should die before he has had a chance to present
such petition, the ordinary probate proceeding after the testator's death would be in order. 11
Thus, after the allowance of the will of Dr. De Santos on February 16, 1996, there was nothing
else for Branch 61 to do except to issue a certificate of allowance of the will pursuant to Rule
73, 12 of the Rules of Court. There is, therefore, no basis for the ruling of Judge Abad Santos
of Branch 65 of RTC-Makati that
Branch 61 of the Regional Trial Court of Makati having begun the probate proceedings of the
estate of the deceased, it continues and shall continue to exercise said jurisdiction to the
exclusion of all others. It should be noted that probate proceedings do not cease upon the
allowance or disallowance of a will but continues up to such time that the entire estate of the
testator had been partitioned and distributed.
The fact that the will was allowed during the lifetime of the testator meant merely that the
partition and distribution of the estate was to be suspended until the latter's death. In other
words, the petitioner, instead of filing a new petition for the issuance of letters testamentary,
should have simply filed a manifestation for the same purpose in the probate court. 12

Petitioner, who defends the order of Branch 65 allowing him to intervene, cites Rule 73, 1
which states: llcd

Where estate of deceased persons settled. If the decedent is an inhabitant of the Philippines
at the time of his death, whether a citizen or an alien, his will shall be proved, or letters of
administration granted, and his estate settled, in the Court of First Instance in the province in
which he resides at the time of his death, and if he is an inhabitant of a foreign country, the
Court of First Instance of any province in which he had estate. The court first taking cognizance
of the settlement of the estate of a decedent, shall exercise jurisdiction to the exclusion of all
other courts. The jurisdiction assumed by a court, so far as it depends on the place of residence
of the decedent, or of the location of his estate, shall not be contested in a suit or proceeding,
except in an appeal from that court, in the original case, or when the want of jurisdiction
appears on the record.
The above rule, however, actually provides for the venue of actions for the settlement of the
estate of deceased persons. In Garcia Fule v. Court of Appeals, it was held: 13
The aforequoted Section 1, Rule 73 (formerly Rule 75, Section 1), specifically the clause "so far
as it depends on the place of residence of the decedent, or of the location of the state," is in
reality a matter of venue, as the caption of the Rule indicates: "Settlement of Estate of
Deceased Persons. Venue and Processes." It could not have been intended to define the
jurisdiction over the subject matter, because such legal provision is contained in a law of
procedure dealing merely with procedural matters. Procedure is one thing, jurisdiction over the
subject matter is another. The power or authority of the court over the subject matter "existed
was fixed before procedure in a given cause began." That power or authority is not altered or
202

changed by procedure, which simply directs the manner in which the power or authority shall
be fully and justly exercised. There are cases though that if the power is not exercised
conformably with the provisions of the procedural law, purely, the court attempting to exercise
it loses the power to exercise it legally. However, this does not amount to a loss of jurisdiction
over the subject matter. Rather, it means that the court may thereby lose jurisdiction over the
person or that the judgment may thereby be rendered defective for lack of something essential
to sustain it. The appearance of this provision in the procedural law at once raises a strong
presumption that it has nothing to do with the jurisdiction of the court over the subject matter.
In plain words, it is just a matter of method, of convenience to the parties.
Indeed, the jurisdiction over probate proceedings and settlement of estates with approximate
value of over P100,000.00 (outside Metro Manila) or P200,000.00 (in Metro Manila) belongs to
the regional trial courts under B.P. Blg. 129, as amended. The different branches comprising
each court in one judicial region do not possess jurisdictions independent of and incompatible
with each other. 14

It is noteworthy that, although Rule 73, 1 applies insofar as the venue of the petition for
probate of the will of Dr. De Santos is concerned, it does not bar other branches of the same
court from taking cognizance of the settlement of the estate of the testator after his death. As
held in the leading case of Bacalso v. Ramolote: 15
The various branches of the Court of First Instance of Cebu under the Fourteenth Judicial
District, are a coordinate and co-equal courts, and the totality of which is only one Court of First
Instance. The jurisdiction is vested in the court, not in the judges. And when a case is filed in
one branch, jurisdiction over the case does not attach to the branch or judge alone, to the
exclusion of the other branches. Trial may be held or proceedings continue by and before
another branch or judge. It is for this reason that Section 57 of the Judiciary Act expressly
grants to the Secretary of Justice, the administrative right or power to apportion the cases
among the different branches, both for the convenience of the parties and for the coordination
of the work by the different branches of the same court. The apportionment and distribution of
cases does not involve a grant or limitation of jurisdiction, the jurisdiction attaches and
continues to be vested in the Court of First Instance of the province, and the trials may be held
by any branch or judge of the court.
Necessarily, therefore, Branch 65 of the RTC of Makati City has jurisdiction over Sp. Proc. No.
M-4343.

Second. Petitioner claims the right to intervene in and oppose the petition for issuance of letters
testamentary filed by private respondent. He argues that, as the nearest next of kin and
creditor of the testator, his interest in the matter is material and direct. In ruling that petitioner
has no right to intervene in the proceedings before Branch 65 of RTC-Makati City, the Court of
Appeals held:
The private respondent herein is not an heir or legatee under the will of the decedent Arturo de
Santos. Neither is he a compulsory heir of the latter. As the only and nearest collateral relative
of the decedent, he can inherit from the latter only in case of intestacy. Since the decedent has
left a will which has already been probated and disposes of all his properties the private
respondent can inherit only if the said will is annulled. His interest in the decedent's estate is,
therefore, not direct or immediate.
203

His claim to being a creditor of the estate is a belated one, having been raised for the first time
only in his reply to the opposition to his motion to intervene, and, as far as the records show,
not supported by evidence.
. . . [T]he opposition must come from one with a direct interest in the estate or the will, and the
private respondent has none. Moreover, the ground cited in the private respondent's opposition,
that the petitioner has deliberately misdeclared the truth worth and value of the estate, is not
relevant to the question of her competency to act as executor. Section 2, Rule 76 of the Rules
of Court requires only an allegation of the probable value and character of the property of the
estate. The true value can be determined later on in the course of the settlement of the
estate. 16
Rule 79, 1 provides:

Opposition to issuance of letters testamentary. Simultaneous petition for administration. Any

person interested in a will may state in writing the grounds why letters testamentary should not
issue to the persons named therein as executors, or any of them, and the court, after hearing
upon notice, shall pass upon the sufficiency of such grounds. A petition may, at the same time,
be filed for letters of administration with the will annexed. LibLex
Under this provision, it has been held that an "interested person" is one who would be
benefited by the estate, such as an heir, or one who has a claim against the estate, such as a
creditor, and whose interest is material and direct, not merely incidental or contingent. 17
Even if petitioner is the nearest next of kin of Dr. De Santos, he cannot be considered an "heir"
of the testator. It is a fundamental rule of testamentary succession that one who has no
compulsory or forced heirs may dispose of his entire estate by will. Thus, Art. 842 of the Civil
Code provides:
One who has no compulsory heirs may dispose by will of all his estate or any part of it in favor
of any person having capacity to succeed.
One who has compulsory heirs may dispose of his estate provided he does not contravene the
provisions of this Code with regard to the legitimate of said heirs.
Compulsory heirs are limited to the testator's
(1) Legitimate children and descendants, with respect to their legitimate parents and
ascendants;
(2) In default of the foregoing, legitimate parents and ascendants, with respect to their
legitimate children and descendants;
(3) The widow or widower;
(4) Acknowledged natural children, and natural children by legal fiction;
(5) Other illegitimate children referred to in Article 287 of the Civil Code. 18
Petitioner, as nephew of the testator, is not a compulsory heir who may have been preterited in
the testator's will.
Nor does he have any right to intervene in the settlement proceedings based on his allegation
that he is a creditor of the deceased. Since the testator instituted or named an executor in his
204

will, it is incumbent upon the Court to respect the desires of the testator. As we stated
in Ozaeta v. Pecson: 19
The choice of his executor is a precious prerogative of a testator, a necessary concomitant of
his right to dispose of his property in the manner he wishes. It is natural that the testator
should desire to appoint one of his confidence, one who can be trusted to carry out his wishes
in the disposal of his estate. The curtailment of this right may be considered a curtailment of
the right to dispose.
Only if the appointed executor is incompetent, refuses the trust, or fails to give bond may the
court appoint other persons to administer the estate. 20 None of these circumstances is
present in this case.

Third. Petitioner contends that private respondent is guilty of forum shopping when she filed
the petition for issuance of letters testamentary (Sp. Proc. No. M-4343) while the probate
proceedings (Sp. Proc. No. M-4223) were still pending. According to petitioner, there is identity
of parties, rights asserted, and reliefs prayed for in the two actions which are founded on the
same facts, and a judgment in either will result in res judicata in the other.
This contention has no merit. As stated earlier, the petition for probate was filed by Dr. De
Santos, the testator, solely for the purpose of authenticating his will. Upon the allowance of his
will, the proceedings were terminated.
On the other hand, the petition for issuance of letters testamentary was filed by private
respondent, as executor of the estate of Dr. De Santos, for the purpose of securing authority
from the Court to administer the estate and put into effect the will of the testator. The estate
settlement proceedings commenced by the filing of the petition terminates upon the distribution
and delivery of the legacies and devises to the persons named in the will. Clearly, there is no
identity between the two petitions, nor was the latter filed during the pendency of the former.
There was, consequently, no forum shopping.
WHEREFORE, the petition is DENIED and the decisions of the Court of Appeals are hereby
AFFIRMED. llcd
SO ORDERED.
||| (Maloles II v. Pacita de Los Reyes Phillips, G.R. No. 129505, 133359, January 31, 2000)

GROUNDS FOR DISALLOWANCE OF WILLS

Grounds exclusive
[G.R. No. 106720. September 15, 1994.]
SPOUSES ROBERTO AND THELMA AJERO, petitioners, vs. THE COURT OF APPEALS
AND CLEMENTE SAND, respondents.
DECISION
PUNO, J p:
This is an appeal by certiorari from the Decision of the Court of Appeals 1 in CA-G.R. CV No.
22840, dated March 30, 1992, the dispositive portion of which reads:
205

"PREMISES CONSIDERED, the questioned decision of November 19, 1988 of the trial court is
hereby REVERSED and SET ASIDE, and the petition for probate is hereby DISMISSED. No
costs."
The earlier Decision was rendered by the RTC of Quezon City, Branch 94, 2 in Sp. Proc. No. Q37171, and the instrument submitted for probate is the holographic will of the late Annie Sand,
who died on November 25, 1982.
In the will, decedent named as devisees, the following: petitioners Roberto and Thelma Ajero,
private respondent Clemente Sand, Meriam S. Arong, Leah Sand, Lilia Sand, Edgar Sand, Fe
Sand, Lisa S. Sand, and Dr. Jose Ajero, Sr., and their children. prLL
On January 20, 1983, petitioners instituted Sp. Proc. No. Q-37171, for allowance of decedent's
holographic will. They alleged that at the time of its execution, she was of sound and disposing
mind, not acting under duress, fraud or undue influence, and was in every respect capacitated
to dispose of her estate by will.
Private respondent opposed the petition on the grounds that: neither the testament's body nor
the signature therein was in decedent's handwriting; it contained alterations and corrections
which were not duly signed by decedent; and, the will was procured by petitioners through
improper pressure and undue influence. The petition was likewise opposed by Dr. Jose Ajero.
He contested the disposition in the will of a house and lot located in Cabadbaran, Agusan Del
Norte. He claimed that said property could not be conveyed by decedent in its entirety, as she
was not its sole owner.
Notwithstanding the oppositions, the trial court admitted the decedent's holographic will to
probate. It found, inter alia:

"Considering then that the probate proceedings herein must decide only the question of identity
of the will, its due execution and the testamentary capacity of the testatrix, this probate court
finds no reason at all for the disallowance of the will for its failure to comply with the formalities
prescribed by law nor for lack of testamentary capacity of the testatrix.
"For one, no evidence was presented to show that the will in question is different from the will
actually executed by the testatrix. The only objections raised by the oppositors . . . are that the
will was not written in the handwriting of the testatrix which properly refers to the question of
its due execution, and not to the question of identity of will. No other will was alleged to have
been executed by the testatrix other than the will herein presented. Hence, in the light of the
evidence adduced, the identity of the will presented for probate must be accepted, i.e., the will
submitted in Court must be deemed to be the will actually executed by the testatrix.
"xxx xxx xxx
"While the fact that it was entirely written, dated and signed in the handwriting of the testatrix
has been disputed, the petitioners, however, have satisfactorily shown in Court that the
holographic will in question was indeed written entirely, dated and signed in the handwriting of
the testatrix. Three (3) witnesses who have convincingly shown knowledge of the handwriting
of the testatrix have been presented and have explicitly and categorically identified the
handwriting with which the holographic will in question was written to be the genuine
handwriting and signature of the testatrix. Given then the aforesaid evidence, the requirement
of the law that the holographic will be entirely written, dated and signed in the handwriting of
the testatrix has been complied with.
206

"xxx xxx xxx

"As to the question of the testamentary capacity of the testatrix, (private respondent) Clemente
Sand himself has testified in Court that the testatrix was completely in her sound mind when he
visited her during her birthday celebration in 1981, at or around which time the holographic will
in question was executed by the testatrix. To be of sound mind, it is sufficient that the testatrix,
at the time of making the will, knew the value of the estate to be disposed of, the proper object
of her bounty, and the character of the testamentary act . . . The will itself shows that the
testatrix even had detailed knowledge of the nature of her estate. She even identified the lot
number and square meters of the lots she had conveyed by will. The objects of her bounty
were likewise identified explicitly. And considering that she had even written a nursing book
which contained the law and jurisprudence on will and succession, there is more than sufficient
showing that she knows the character of the testamentary act.
"In this wise, the question of identity of the will, its due execution and the testamentary
capacity of the testatrix has to be resolved in favor of the allowance of probate of the will
submitted herein.
"Likewise, no evidence was presented to show sufficient reason for the disallowance of herein
holographic will. While it was alleged that the said will was procured by undue and improper
pressure and influence on the part of the beneficiary or of some other person, the evidence
adduced have not shown any instance where improper pressure or influence was exerted on
the testatrix. (Private respondent) Clemente Sand has testified that the testatrix was still alert
at the time of the execution of the will, i.e., at or around the time of her birth anniversary
celebration in 1981. It was also established that she is a very intelligent person and has a mind
of her own. Her independence of character and to some extent, her sense of superiority, which
has been testified to in Court, all show the unlikelihood of her being unduly influenced or
improperly pressured to make the aforesaid will. It must be noted that the undue influence or
improper pressure in question herein only refer to the making of a will and not as to the specific
testamentary provisions therein which is the proper subject of another proceeding. Hence,
under the circumstances, this Court cannot find convincing reason for the disallowance of the
will herein.
"Considering then that it is a well-established doctrine in the law on succession that in case of
doubt, testate succession should be preferred over intestate succession, and the fact that no
convincing grounds were presented and proven for the disallowance of the holographic will of
the late Annie Sand, the aforesaid will submitted herein must be admitted to
probate." 3 (Emphasis omitted.)

On appeal, said Decision was reversed, and the petition for probate of decedent's will was
dismissed. The Court of Appeals found that, "the holographic will fails to meet the requirements
for its validity." 4 It held that the decedent did not comply with Articles 813 and 814 of the New
Civil Code, which read, as follows:
"Article 813: When a number of dispositions appearing in a holographic will are signed without
being dated, and the last disposition has a signature and date, such date validates the
dispositions preceding it, whatever be the time of prior dispositions."
"Article 814: In case of insertion, cancellation, erasure or alteration in a holographic will, the
testator must authenticate the same by his full signature."

207

It alluded to certain dispositions in the will which were either unsigned and undated, or signed
but not dated. It also found that the erasures, alterations and cancellations made thereon had
not been authenticated by decedent. llcd
Thus, this appeal which is impressed with merit.
Section 9, Rule 76 of the Rules of Court provides that wills shall be disallowed in any of the
following cases:
"(a) If not executed and attested as required by law;
(b) If the testator was insane, or otherwise mentally incapable to make a will, at the time of its
execution;
(c) If it was executed under duress, or the influence of fear, or threats;

(d) If it was procured by undue and improper pressure and influence, on the part of the
beneficiary, or of some other person for his benefit;
(e) If the signature of the testator was procured by fraud or trick, and he did not intend that
the instrument should be his will at the time of fixing his signature thereto."
In the same vein, Article 839 of the New Civil Code reads:
"Article 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 will, 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."
These lists are exclusive; no other grounds can serve to disallow a will. 5 Thus, in a petition to
admit a holographic will to probate, the only issues to be resolved are: (1) whether the
instrument submitted is, indeed, the decedent's last will and testament; (2) whether said will
was executed in accordance with the formalities prescribed by law; (3) whether the decedent
had the necessary testamentary capacity at the time the will was executed; and, (4) whether
the execution of the will and its signing were the voluntary acts of the decedents. 6
In the case at bench, respondent court held that the holographic will of Anne Sand was not
executed in accordance with the formalities prescribed by law. It held that Articles 813 and 814
of the New Civil Code, ante, were not complied with, hence, it disallowed the probate of said
will. This is erroneous. cdrep

We reiterate what we held in Abangan vs. Abangan, 40 Phil. 476, 479 (1919), that:
208

"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 primordial 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
frustrative of the testator's last will, must be disregarded."
For purposes of probating non-holographic wills, these formal solemnities include the
subscription, attestation, and acknowledgment requirements under Articles 805 and 806 of the
New Civil Code.
In the case of holographic wills, on the other hand, what assures authenticity is the
requirement that they be totally autographic or handwritten by the testator himself, 7 as
provided under Article 810 of the New Civil Code, thus:
"A person may execute a holographic will which must be entirely written, dated, and signed by
the hand of the testator himself. It is subject to no other form, and may be made in or out of
the Philippines, and need not be witnessed." (Emphasis supplied.)
Failure to strictly observe other formalities will not result in the disallowance of a holographic
will that is unquestionably handwritten by the testator.
A reading of Article 813 of the New Civil Code shows that its requirement affects the validity of
the dispositions contained in the holographic will, but not its probate. If the testator fails to sign
and date some of the dispositions, the result is that these dispositions cannot be effectuated.
Such failure, however, does not render the whole testament void.
Likewise, a holographic will can still be admitted to probate, notwithstanding non-compliance
with the provisions of Article 814. In the case of Kalaw vs. Relova, 132 SCRA 237, 242 (1984),
this Court held: cdrep
"Ordinarily, when a number of erasures, corrections, and interlineations made by the testator in
a holographic Will have not been noted under his signature, . . . the Will is not thereby
invalidated as a whole, but at most only as respects the particular words erased, corrected or
interlined. Manresa gave an identical commentary when he said 'la omision de la salvedad no
anula el testamento, segun la regla de jurisprudencia establecida en la sentencia de 4 de Abril
de 1895.'" 8 (Emphasis omitted.)
Thus, unless the unauthenticated alterations, cancellations or insertions were made on the date
of the holographic will or on testator's signature, 9 their presence does not invalidate the will
itself. 10 The lack of authentication will only result in disallowance of such changes.
It is also proper to note that the requirements of authentication of changes and signing and
dating of dispositions appear in provisions (Articles 813 and 814) separate from that which
provides for the necessary conditions for the validity of the holographic will (Article 810). The
distinction can be traced to Articles 678 and 688 of the Spanish Civil Code, from which the
present provisions covering holographic wills are taken. They read as follows:
"Article 678: A will is called holographic when the testator writes it himself in the form and with
the requisites required in Article 688.
209

"Article 688: Holographic wills may be executed only by persons of full age.

"In order that the will be valid it must be drawn on stamped paper corresponding to the year of
its execution, written in its entirety by the testator and signed by him, and must contain a
statement of the year, month and day of its execution.
"If it should contain any erased, corrected, or interlined words, the testator must identify them
over his signature.
"Foreigners may execute holographic wills in their own language."
This separation and distinction adds support to the interpretation that only the requirements of
Article 810 of the New Civil Code and not those found in Articles 813 and 814 of the same
Code are essential to the probate of a holographic will.
The Court of Appeals further held that decedent Annie Sand could not validly dispose of the
house and lot located in Cabadbaran, Agusan del Norte, in its entirety. This is correct and must
be affirmed. LexLib
As a general rule, courts in probate proceedings are limited to pass only upon the extrinsic
validity of the will sought to be probated. However, in exceptional instances, courts are not
powerless to do what the situation constrains them to do, and pass upon certain provisions of
the will. 11 In the case at bench, decedent herself indubitably stated in her holographic will
that the Cabadbaran property is in the name of her late father, John H. Sand (which led
oppositor Dr. Jose Ajero to question her conveyance of the same in its entirety.). Thus, as
correctly held by respondent court, she cannot validly dispose of the whole property, which she
shares with her father's other heirs.

IN VIEW WHEREOF, the instant petition is GRANTED. The Decision of the Court of Appeals in
CA-G.R. CV No. 22840, dated March 30, 1992, is REVERSED and SET ASIDE, except with
respect to the invalidity of the disposition of the entire house and lot in Cabadbaran, Agusan del
Norte. The Decision of the Regional Trial Court of Quezon City, Branch 94 in Sp. Proc. No. Q37171, dated November 19, 1988, admitting to probate the holographic will of decedent Annie
Sand, is hereby REINSTATED, with the above qualification as regards the Cabadbaran property.
No costs. LexLib
SO ORDERED.
||| (Spouses Ajero v. Court of Appeals, G.R. No. 106720, September 15, 1994)

210