Professional Documents
Culture Documents
FRETTI
GANCHOON
I.
FERNAN, C.J.:
This is a petition for review on certiorari seeking the reversal of:
(a) the decision of the Fourth Civil Cases Division of the
Intermediate Appellate Court dated August 31, 1983 in AC-G.R.
CV No. 56626 entitled "Jesus Yanes et al. v. Dr. Rodolfo Siason et
al." affirming the decision dated July 8, 1974 of the Court of First
Instance of Negros Occidental insofar as it ordered the petitioners
to pay jointly and severally the private respondents the sum of
P20,000.00 representing the actual value of Lots Nos. 773-A and
773-B of the cadastral survey of Murcia, Negros Occidental
and reversing the subject decision insofar as it awarded the sums
of P2,000.00, P5,000.00 and P2,000.00 as actual damages, moral
damages and attorney's fees, respectively and (b) the resolution
of said appellate court dated May 30, 1984, denying the motion
for reconsideration of its decision.
The real properties involved are two parcels of land identified as
Lot 773-A and Lot 773-B which were originally known as Lot 773 of
the cadastral survey of Murcia, Negros Occidental. Lot 773, with
an area of 156,549 square meters, was registered in the name of
the heirs of Aniceto Yanes under Original Certificate of Title No.
RO-4858 (8804) issued on October 9, 1917 by the Register of
Deeds of Occidental Negros (Exh. A).
Aniceto Yanes was survived by his children, Rufino, Felipe and
Teodora. Herein private respondents, Estelita, Iluminado and
Jesus, are the children of Rufino who died in 1962 while the other
private respondents, Antonio and Rosario Yanes, are children of
Felipe. Teodora was survived by her child, Jovita (Jovito) Alib. 1 It is
not clear why the latter is not included as a party in this case.
Aniceto left his children Lots 773 and 823. Teodora cultivated only
three hectares of Lot 823 as she could not attend to the other
portions of the two lots which had a total area of around twentyfour hectares. The record does not show whether the children of
Felipe also cultivated some portions of the lots but it is
established that Rufino and his children left the province to settle
in other places as a result of the outbreak of World War II.
According to Estelita, from the "Japanese time up to peace time",
they did not visit the parcels of land in question but "after
liberation", when her brother went there to get their share of the
sugar produced therein, he was informed that Fortunato Santiago,
Fuentebella (Puentevella) and Alvarez were in possession of Lot
773. 2
It is on record that on May 19, 1938, Fortunato D. Santiago was
issued Transfer Certificate of Title No. RF 2694 (29797) covering
Lot 773-A with an area of 37,818 square meters. 3 TCT No. RF
2694 describes Lot 773-A as a portion of Lot 773 of the cadastral
survey of Murcia and as originally registered under OCT No. 8804.
The bigger portion of Lot 773 with an area of 118,831 square
meters was also registered in the name of Fortunato D. Santiago
on September 6, 1938 Under TCT No. RT-2695 (28192 ). 4 Said
transfer certificate of title also contains a certification to the
effect that Lot 773-B was originally registered under OCT No.
8804.
On May 30, 1955, Santiago sold Lots 773-A and 773-B to Monico
B. Fuentebella, Jr. in consideration of the sum of
P7,000.00. 5 Consequently, on February 20, 1956, TCT Nos. T19291 and T-19292 were issued in Fuentebella's name. 6
In its decision of July 8, 1974, the lower court found that Rodolfo
Siason, who purchased the properties in question thru an agent as
he was then in Mexico pursuing further medical studies, was a
buyer in good faith for a valuable consideration. Although the
Yaneses were negligent in their failure to place a notice of lis
pendens"before the Register of Deeds of Negros Occidental in
order to protect their rights over the property in question" in Civil
Case No. 5022, equity demanded that they recover the actual
value of the land because the sale thereof executed between
Alvarez and Siason was without court approval. 28 The dispositive
portion of the decision states:
IN VIEW OF THE FOREGOING CONSIDERATION, judgment is hereby
rendered in the following manner:
A. The case against the defendant Dr. Rodolfo Siason and the
Register of Deeds are (sic) hereby dismmissed,
B. The defendants, Laura, Flora and Raymundo, all surnamed
Alvarez being the legitimate children of the deceased Rosendo
Alvarez are hereby ordered to pay jointly and severally the
plaintiffs the sum of P20,000.00 representing the actual value of
Lots Nos. 773-A and 773-B of Murcia Cadastre, Negros Occidental;
the sum of P2,000.00 as actual damages suffered by the plaintiff;
the sum of P5,000.00 representing moral damages and the sum
of P2.000 as attorney's fees, all with legal rate of interest from
date of the filing of this complaint up to final payment.
C. The cross-claim filed by the defendant Dr. Rodolfo Siason
against the defendants, Laura, Flora and Raymundo, all surnamed
Alvarez is hereby dismissed.
D. Defendants, Laura, Flora and Raymundo, all surnamed Alvarez
are hereby ordered to pay the costs of this suit.
SO ORDERED. 29
Art. 1311. Contract stake effect only between the parties, their
assigns and heirs except in case where the rights and obligations
arising from the contract are not transmissible by their nature, or
by stipulation or by provision of law. The heir is not liable beyond
the value of the property received from the decedent.
As explained by this Court through Associate Justice J.B.L. Reyes
in the case of Estate of Hemady vs. Luzon Surety Co., Inc. 41
The binding effect of contracts upon the heirs of the deceased
party is not altered by the provision of our Rules of Court that
money debts of a deceased must be liquidated and paid from his
estate before the residue is distributed among said heirs (Rule
89). The reason is that whatever payment is thus made from the
state is ultimately a payment by the heirs or distributees, since
the amount of the paid claim in fact diminishes or reduces the
shares that the heirs would have been entitled to receive.
Under our law, therefore. the general rule is that a party's
contractual rights and obligations are transmissible to the
successors.
The rule is a consequence of the progressive "depersonalization"
of patrimonial rights and duties that, as observed by Victorio
Polacco has characterized the history of these institutions. From
the Roman concept of a relation from person to person, the
obligation has evolved into a relation from patrimony to
patrimony with the persons occupying only a representative
position, barring those rare cases where the obligation is strictly
personal, i.e., is contracted intuitu personae, in consideration of
its performance by a specific person and by no other.
xxx xxx xxx
Petitioners being the heirs of the late Rosendo Alvarez, they
cannot escape the legal consequences of their father's
transaction, which gave rise to the present claim for damages.
That petitioners did not inherit the property involved herein is of
no moment because by legal fiction, the monetary equivalent
thereof devolved into the mass of their father's hereditary estate,
and we have ruled that the hereditary assets are always liable in
their totality for the payment of the debts of the estate. 42
DECISION
REYES, J. B. L., J.:
Appeal by Luzon Surety Co., Inc., from an order of the Court of
First Instance of Rizal, presided by Judge Hermogenes Caluag,
dismissing its claim against the Estate of K. H. Hemady (Special
Proceeding No. Q-293) for failure to state a cause of action.
The Luzon Surety Co. had filed a claim against the Estate based
on twenty different indemnity agreements, or counter bonds,
each subscribed by a distinct principal and by the deceased K. H.
Hemady, a surety solidary guarantor) in all of them, in
consideration of the Luzon Surety Co.s of having guaranteed, the
various principals in favor of different creditors. The twenty
counterbonds, or indemnity agreements, all contained the
following stipulations:
Premiums. As consideration for this suretyship, the
undersigned jointly and severally, agree to pay the COMPANY the
sum of ________________ (P______) pesos, Philippines Currency, in
advance as premium there of for every __________ months or
fractions thereof, this ________ or any renewal or substitution
thereof is in effect.
DECISION
CALLEJO, SR., J.:
Before us is a petition for review on certiorari under Rule 45 of the
Revised Rules of Court which seeks the reversal of the
Decision1 of the Court of Appeals dated May 30, 2001 in CA-G.R.
CV No. 48831 affirming the dismissal2 of the petitioners
complaint in Civil Case No. 18909 by the Regional Trial Court (RTC)
of Makati City, Branch 63.
The antecedent facts are as follows:
On May 31, 1980, the First Countryside Credit Corporation (FCCC)
and Efraim M. Santibaez entered into a loan agreement3 in the
amount of P128,000.00. The amount was intended for the
payment of the purchase price of one (1) unit Ford 6600
Agricultural All-Purpose Diesel Tractor. In view thereof, Efraim and
his son, Edmund, executed a promissory note in favor of the
FCCC, the principal sum payable in five equal annual
amortizations ofP43,745.96 due on May 31, 1981 and every May
31st thereafter up to May 31, 1985.
On December 13, 1980, the FCCC and Efraim entered into another
loan agreement,4 this time in the amount ofP123,156.00. It was
intended to pay the balance of the purchase price of another unit
of Ford 6600 Agricultural All-Purpose Diesel Tractor, with
accessories, and one (1) unit Howard Rotamotor Model AR 60K.
Again, Efraim and his son, Edmund, executed a promissory note
for the said amount in favor of the FCCC. Aside from such
promissory note, they also signed a Continuing Guaranty
Agreement5 for the loan dated December 13, 1980.
On January 29, 1990, the case was unloaded and re-raffled to the
RTC of Makati City, Branch 63.14Consequently, trial on the merits
ensued and a decision was subsequently rendered by the court
dismissing the complaint for lack of merit. The decretal portion of
the RTC decision reads:
WHEREFORE, judgment is hereby rendered DISMISSING the
complaint for lack of merit.15
The trial court found that the claim of the petitioner should have
been filed with the probate court before which the testate estate
of the late Efraim Santibaez was pending, as the sum of money
being claimed was an obligation incurred by the said decedent.
The trial court also found that the Joint Agreement apparently
executed by his heirs, Edmund and Florence, on July 22, 1981,
was, in effect, a partition of the estate of the decedent. However,
the said agreement was void, considering that it had not been
approved by the probate court, and that there can be no valid
partition until after the will has been probated. The trial court
further declared that petitioner failed to prove that it was the now
defunct Union Savings and Mortgage Bank to which the FCCC had
assigned its assets and liabilities. The court also agreed to the
contention of respondent Florence S. Ariola that the list of assets
and liabilities of the FCCC assigned to Union Savings and
Mortgage Bank did not clearly refer to the decedents account.
Ruling that the joint agreement executed by the heirs was null
and void, the trial court held that the petitioners cause of action
against respondent Florence S. Ariola must necessarily fail.
The petitioner appealed from the RTC decision and elevated its
case to the Court of Appeals (CA), assigning the following as
errors of the trial court:
1. THE COURT A QUO ERRED IN FINDING THAT THE JOINT
AGREEMENT (EXHIBIT A) SHOULD BE APPROVED BY THE PROBATE
COURT.
2. THE COURT A QUO ERRED IN FINDING THAT THERE CAN BE NO
VALID PARTITION AMONG THE HEIRS UNTIL AFTER THE WILL HAS
BEEN PROBATED.
I.
THE HONORABLE COURT OF APPEALS ERRED IN FINDING THAT
THE JOINT AGREEMENT SHOULD BE APPROVED BY THE PROBATE
COURT.
II.
THE COURT OF APPEALS ERRED IN FINDING THAT THERE CAN BE
NO VALID PARTITION AMONG THE HEIRS OF THE LATE EFRAIM
SANTIBAEZ UNTIL AFTER THE WILL HAS BEEN PROBATED.
III.
THE COURT OF APPEALS ERRED IN NOT FINDING THAT THE
RESPONDENT HAD WAIVED HER RIGHT TO HAVE THE CLAIM RELITIGATED IN THE ESTATE PROCEEDING.
IV.
RESPONDENTS CAN, IN FACT, BE HELD JOINTLY AND SEVERALLY
LIABLE WITH THE PRINCIPAL DEBTOR THE LATE EFRAIM
SANTIBAEZ ON THE STRENGTH OF THE CONTINUING GUARANTY
AGREEMENT EXECUTED IN FAVOR OF PETITIONER-APPELLANT
UNION BANK.
V.
THE PROMISSORY NOTES DATED MAY 31, 1980 IN THE SUM
OF P128,000.00 AND DECEMBER 13, 1980 IN THE AMOUNT
OF P123,000.00 CATEGORICALLY ESTABLISHED THE FACT THAT
THE RESPONDENTS BOUND THEMSELVES JOINTLY AND SEVERALLY
LIABLE WITH THE LATE DEBTOR EFRAIM SANTIBAEZ IN FAVOR OF
PETITIONER UNION BANK.19
Section 5. Claims which must be filed under the notice. If not filed
barred; exceptions. All claims for money against the decedent,
arising from contract, express or implied, whether the same be
due, not due, or contingent, all claims for funeral expenses for the
last sickness of the decedent, and judgment for money against
the decedent, must be filed within the time limited in the notice;
otherwise they are barred forever, except that they may be set
forth as counterclaims in any action that the executor or
administrator may bring against the claimants. Where an
executor or administrator commences an action, or prosecutes an
action already commenced by the deceased in his lifetime, the
debtor may set forth by answer the claims he has against the
decedent, instead of presenting them independently to the court
as herein provided, and mutual claims may be set off against
each other in such action; and if final judgment is rendered in
favor of the defendant, the amount so determined shall be
considered the true balance against the estate, as though the
claim had been presented directly before the court in the
administration proceedings. Claims not yet due, or contingent,
may be approved at their present value.
The filing of a money claim against the decedents estate in the
probate court is mandatory.30 As we held in the vintage case of Py
Eng Chong v. Herrera:31
This requirement is for the purpose of protecting the estate of
the deceased by informing the executor or administrator of the
claims against it, thus enabling him to examine each claim and to
determine whether it is a proper one which should be allowed.
The plain and obvious design of the rule is the speedy settlement
of the affairs of the deceased and the early delivery of the
property to the distributees, legatees, or heirs. `The law strictly
requires the prompt presentation and disposition of the claims
against the decedent's estate in order to settle the affairs of the
estate as soon as possible, pay off its debts and distribute the
residue.32
This brings us to the plea that the Court of First Instance of Rizal
had no jurisdiction to approve the compromise with Jose de Borja
(Annex A) because Tasiana Ongsingco was not an heir in the
estate of Josefa Tangco pending settlement in the Rizal Court, but
she was an heir of Francisco de Borja, whose estate was the
object of Special Proceeding No. 832 of the Court of First Instance
of Nueva Ecija. This circumstance is irrelevant, since what was
sold by Tasiana Ongsingco was only her eventual share in the
estate of her late husband, not the estate itself; and as already
shown, that eventual share she owned from the time of
Francisco's death and the Court of Nueva Ecija could not bar her
selling it. As owner of her undivided hereditary share, Tasiana
could dispose of it in favor of whomsoever she chose. Such
alienation is expressly recognized and provided for by article 1088
of the present Civil Code:
Art. 1088. Should any of the heirs sell his hereditary rights to a
stranger before the partition, any or all of the co-heirs may be
subrogated to the rights of the purchaser by reimbursing him for
the price of the sale, provided they do so within the period of one
month from the time they were notified in writing of the sale of
the vendor.
If a sale of a hereditary right can be made to a stranger, then a
fortiori sale thereof to a coheir could not be forbidden.
Tasiana Ongsingco further argues that her contract with Jose de
Borja (Annex "A") is void because it amounts to a compromise as
to her status and marriage with the late Francisco de Borja. The
point is without merit, for the very opening paragraph of the
agreement with Jose de Borja (Annex "A") describes her as "the
heir and surviving spouse of Francisco de Borja by his second
marriage, Tasiana Ongsingco Vda. de de Borja", which is in itself
definite admission of her civil status. There is nothing in the text
of the agreement that would show that this recognition of
Ongsingco's status as the surviving spouse of Francisco de Borja
was only made in consideration of the cession of her hereditary
rights.
In her brief, Tasiana Ongsingco also pleads that the time elapsed
in the appeal has affected her unfavorably, in that while the
purchasing power of the agreed price of P800,000 has diminished,
the value of the Jalajala property has increased. But the fact is
that her delay in receiving the payment of the agreed price for
her hereditary interest was primarily due to her attempts to nullify
the agreement (Annex "A") she had formally entered into with the
advice of her counsel, Attorney Panaguiton. And as to the
devaluation de facto of our currency, what We said in Dizon
Rivera vs. Dizon, L-24561, 30 June 1970, 33 SCRA 554, that
"estates would never be settled if there were to be a revaluation
with every subsequent fluctuation in the values of currency and
properties of the estate", is particularly opposite in the present
case.
Coming now to Case G.R. No. L-28611, the issue is whether the
Hacienda de Jalajala (Poblacion), concededly acquired by
Francisco de Borja during his marriage to his first wife, Josefa
Tangco, is the husband's private property (as contended by his
second spouse, Tasiana Ongsingco), or whether it forms part of
the conjugal (ganancial) partnership with Josefa Tangco. The Court
of First Instance of Rizal (Judge Herminio Mariano, presiding)
declared that there was adequate evidence to overcome the
presumption in favor of its conjugal character established by
Article 160 of the Civil Code.
We are of the opinion that this question as between Tasiana
Ongsingco and Jose de Borja has become moot and academic, in
view of the conclusion reached by this Court in the two preceding
cases (G.R. No. L-28568), upholding as valid the cession of
Tasiana Ongsingco's eventual share in the estate of her late
husband, Francisco de Borja, for the sum of P800,000 with the
accompanying reciprocal quit-claims between the parties. But as
the question may affect the rights of possible creditors and
legatees, its resolution is still imperative.
After trial, the Court of First Instance of Rizal, per Judge Herminio
Mariano, held that the plaintiff had adduced sufficient evidence to
rebut the presumption, and declared the Hacienda de Jalajala
(Poblacion) to be the exclusive private property of the late
Francisco de Borja, and his Administratrix, Tasiana Ongsingco Vda.
de Borja, to be entitled to its possession. Defendant Jose de Borja
then appealed to this Court.
The evidence reveals, and the appealed order admits, that the
character of the Hacienda in question as owned by the conjugal
partnership De Borja-Tangco was solemnly admitted by the late
Francisco de Borja no less than two times: first, in the Reamended
Inventory that, as executor of the estate of his deceased wife
Josefa Tangco, he filed in the Special Proceedings No. 7866 of the
Court of First Instance of Rizal on 23 July 1953 (Exhibit "2"); and
again, in the Reamended Accounting of the same date, also filed
in the proceedings aforesaid (Exhibit "7"). Similarly, the plaintiff
Tasiana O. Vda. de Borja, herself, as oppositor in the Estate of
Josefa Tangco, submitted therein an inventory dated 7 September
1954 (Exhibit "3") listing the Jalajala property among the
"Conjugal Properties of the Spouses Francisco de Borja and Josefa
Tangco". And once more, Tasiana Ongsingco, as administratrix of
the Estate of Francisco de Borja, in Special Proceedings No. 832 of
the Court of First Instance of Nueva Ecija, submitted therein in
December, 1955, an inventory wherein she listed the Jalajala
Hacienda under the heading "Conjugal Property of the Deceased
Spouses Francisco de Borja and Josefa Tangco, which are in the
possession of the Administrator of the Testate Estate of the
Deceased Josefa Tangco in Special Proceedings No. 7866 of the
Court of First Instance of Rizal" (Exhibit "4").
MARTIN, J:
This is a petition for review 1 of the Order of the Court of First
Instance of Abra in Civil Case No. 856, entitled Fortunata Barcena
vs. Leon Barcena, et al., denying the motions for reconsideration
of its order dismissing the complaint in the aforementioned case.
On March 31, 1975 Fortunata Barcena, mother of minors Rosalio
Bonilla and Salvacion Bonilla and wife of Ponciano Bonilla,
instituted a civil action in the Court of First Instance of Abra, to
quiet title over certain parcels of land located in Abra.
On May 9, 1975, defendants filed a written motion to dismiss the
complaint, but before the hearing of the motion to dismiss, the
counsel for the plaintiff moved to amend the complaint in order to
include certain allegations therein. The motion to amend the
complaint was granted and on July 17, 1975, plaintiffs filed their
amended complaint.
On August 4, 1975, the defendants filed another motion to
dismiss the complaint on the ground that Fortunata Barcena is
dead and, therefore, has no legal capacity to sue. Said motion to
dismiss was heard on August 14, 1975. In said hearing, counsel
for the plaintiff confirmed the death of Fortunata Barcena, and
asked for substitution by her minor children and her husband, the
petitioners herein; but the court after the hearing immediately
dismissed the case on the ground that a dead person cannot be a
real party in interest and has no legal personality to sue.
On August 19, 1975, counsel for the plaintiff received a copy of
the order dismissing the complaint and on August 23, 1975, he
moved to set aside the order of the dismissal pursuant to Sections
16 and 17 of Rule 3 of the Rules of Court. 2
The Court reverses the respondent Court and sets aside its order
dismissing the complaint in Civil Case No. 856 and its orders
denying the motion for reconsideration of said order of dismissal.
While it is true that a person who is dead cannot sue in court, yet
he can be substituted by his heirs in pursuing the case up to its
completion. The records of this case show that the death of
Fortunata Barcena took place on July 9, 1975 while the complaint
was filed on March 31, 1975. This means that when the complaint
was filed on March 31, 1975, Fortunata Barcena was still alive,
and therefore, the court had acquired jurisdiction over her person.
If thereafter she died, the Rules of Court prescribes the procedure
whereby a party who died during the pendency of the proceeding
can be substituted. Under Section 16, Rule 3 of the Rules of Court
"whenever a party to a pending case dies ... it shall be the duty of
his attorney to inform the court promptly of such death ... and to
give the name and residence of his executor, administrator,
guardian or other legal representatives." This duty was complied
with by the counsel for the deceased plaintiff when he manifested
before the respondent Court that Fortunata Barcena died on July
9, 1975 and asked for the proper substitution of parties in the
case. The respondent Court, however, instead of allowing the
substitution, dismissed the complaint on the ground that a dead
person has no legal personality to sue. This is a grave error.
Article 777 of the Civil Code provides "that the rights to the
succession are transmitted from the moment of the death of the
decedent." From the moment of the death of the decedent, the
heirs become the absolute owners of his property, subject to the
rights and obligations of the decedent, and they cannot be
deprived of their rights thereto except by the methods provided
for by law. 3 The moment of death is the determining factor when
the heirs acquire a definite right to the inheritance whether such
right be pure or contingent. 4 The right of the heirs to the property
of the deceased vests in them even before judicial declaration of
their being heirs in the testate or intestate proceedings. 5 When
Fortunata Barcena, therefore, died her claim or right to the
parcels of land in litigation in Civil Case No. 856, was not
extinguished by her death but was transmitted to her heirs upon
her death. Her heirs have thus acquired interest in the properties
in litigation and became parties in interest in the case. There is,
therefore, no reason for the respondent Court not to allow their
substitution as parties in interest for the deceased plaintiff.
Under Section 17, Rule 3 of the Rules of Court "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 such time as
may be granted ... ." The question as to whether an action
survives or not depends on the nature of the action and the
damage sued for. 6 In the causes of action which survive the
wrong complained affects primarily and principally property and
property rights, the injuries to the person being merely incidental,
while in the causes of action which do not survive the injury
complained of is to the person, the property and rights of property
affected being incidental. 7 Following the foregoing criterion the
claim of the deceased plaintiff which is an action to quiet title
over the parcels of land in litigation affects primarily and
principally property and property rights and therefore is one that
survives even after her death. It is, therefore, the duty of the
respondent Court to order the legal representative of the
deceased plaintiff to appear and to be substituted for her. But
what the respondent Court did, upon being informed by the
counsel for the deceased plaintiff that the latter was dead, was to
dismiss the complaint. This should not have been done for under
the same Section 17, Rule 3 of the Rules of Court, it is even the
duty of the court, if the legal representative fails to appear, to
order the opposing party to procure the appointment of a legal
representative of the deceased. In the instant case the
respondent Court did not have to bother ordering the opposing
party to procure the appointment of a legal representative of the
deceased because her counsel has not only asked that the minor
children be substituted for her but also suggested that their uncle
be appointed as guardian ad litem for them because their father
is busy in Manila earning a living for the family. But the
respondent Court refused the request for substitution on the
ground that the children were still minors and cannot sue in court.
This is another grave error because the respondent Court ought to
have known that under the same Section 17, Rule 3 of the Rules
of Court, the court is directed to appoint a guardian ad litem for
the minor heirs. Precisely in the instant case, the counsel for the
BELLOSILLO, J.:
This petition for review on certiorari seeks to reverse the 30
March 1994. Decision and 21 December 1994 Resolution of
respondent Court of Appeals which upheld the right of private
respondents as heirs of Lourdes Sampayo to demand partition
under Art. 494 of the Civil Code.
Lourdes Sampayo and Ignacio Conti, married to Rosario Cuado,
were the co-owners of the property in litigation consisting of a
539-square meter lot at the corner of Zamora and Abellanosa
Streets, Lucena City, covered by TCT No. T-15374, with a house
erected thereon. 1 On 17 March 1986 Lourdes Sampayo died
intestate without issue. 2Subsequently, on 1 April 1987 private
respondents Josefina S. Reyes, Bernardita S. Palilio, Herminia S.
Palilio, Remedios A. Sampayo, Iluminada A. Sampayo, Enrico A.
SAMPAYO, Carlos A. Sampayo, Gelleroso C. Sampayo, Myrna C.
Sampayo, Rosalina C. Sampayo, Manuel C. Sampayo, Delia. A.
Sampayo, Corazon C. Sampayo, Nilo C. Sampayo, Lolita A.
Sampayo and Norma A. Sampayo, all represented by their
Attorney-in-Fact Lydia S. Reyes, with Lolita A. Sampayo acting also
in her own behalf and as Attorney-in-Fact of Norma A. Sampayo,
all claiming to be collateral relatives of the deceased Lourdes
Sampayo, filed an action for partition and damages before RTC-Br.
54, Lucena City. 3
The spouses Ignacio Conti and Rosario Cuario refused the
partition on the ground that private respondents failed to produce
any document to produce that they were the rightful heirs of
Lourdes Sampayo. 4 On 30 August 1987 Ignacio Conti died and
was substituted as party-defendant by his children Asuncion,
Francisco, Milagros, Joselito, Luisito, Diego and Teresita, all
surnamed Conti. 5
To rebut whatever rights the alleged heirs of Lourdes had over the
subject lot, petitioners presented Rosario Cuario Conti, Rosal
Ladines Malundas and Rodolfo Espineli. Rosario testified that the
subject property was co-owned in equal shares by her husband
Ignacio Conti and Lourdes Sampayo and that her family (Rosario)
had been staying in the subject property since 1937. 11 In fact,
she said that her late husband Ignacio Conti paid for the real
estate taxes 12 and spent for the necessary repairs and
improvements thereon 13 because by agreement Lourdes would
leave her share of the property to them. 14
However, as correctly found by the trial court, no will, either
testamentary or holographic, was presented by petitioners to
substantiate this claim. 15 Rosario also disclosed that when
Lourdes died her remains were taken by her-relatives from their
house. 16 When cross examined on who those relatives were, she
replied that the only one she remembered was Josefina since
there were many relatives who came. When asked who Josefina's
parents were, she said she could not recall. Likewise, when asked
who the parents of Lourdes were, Rosario denied having ever
known them. 17
Another witness, Rosa Ladines Malundas, narrated that she used
to be the neighbor and hairdresser of the deceased Lourdes
Sampayo who told her that upon her death her share would go to
Ignacio Conti whom she considered as her brother since both of
them were "adopted" by their foster parents Gabriel Cord and
Anastacia Allarey Cord, 18 although she admitted that she did not
know whether Lourdes had other relatives. 19
According to another witness, Rodolfo Espineli, he took pictures of
the tombs bearing the tombstones of Gabriel Cord and Anastacia
Allarey Cord and Ignacio Conti as well as that of Lourdes Sampayo
who was supposed to have been interred beside her "adoptive"
parents. However, as revealed by Rosario during her direct
examination, Lourdes was not in fact interred there because her
relatives took her remains. 20
Claro Quison died in 1902. It was proven at the trial that the
present plaintiffs are next of kin and heirs, but it is said by the
appellants that they are not entitled to maintain this action
because there is no evidence that any proceedings have been
taken in court for the settlement of the estate of Claro Quison;
and that without such settlement, the heirs cannot maintain this
action. There is nothing in this point. As well by the Civil Code as
by the Code of Civil Procedure, the title to the property owned by
a person who dies intestate passes at once to his heirs. Such
transmission is, under the present law, subject to the claims of
administration and the property may be taken from the heirs for
the purpose of paying debts and expenses, but this does not
prevent an immediate passage of the title, upon the death of the
intestate, from himself to his heirs. Without some showing that a
judicial administrator had been appointed in proceedings to settle
the estate of Claro Quison, the right of the; plaintiffs to maintain
this action is established.
Conformably with the foregoing and taken in conjunction with
Arts. 777 and 494 32 of the Civil Code, from the death of Lourdes
Sampayo her rights as a co-owner, incidental to which is the right
to ask for partition at any time or to terminate the co-ownership,
were transmitted to her rightful heirs. In so demanding partition
private respondents merely exercised the right originally
pertaining to the decedent, their predecessor-in-interest.
Petitioners' theory as to the requirement of publication would
have been correct had the action been for the partition of the
estate of Lourdes Sampayo, or if we were dealing with
extrajudicial settlement by agreement between heirs and the
summary settlement of estates of small value. 33 But what private
respondents are pursuing is the mere segregation of Lourdes'
one-half share which they inherited; from her through intestate
succession. This is a simple case of ordinary partition between coowners. The applicable law in point is Sec. 1 of Rules 69 of the
Rules of Court
DECISION
NACHURA, J.:
This petition, filed under Rule 65 of the Rules of Court, assails the
Court of Appeals (CA) Decision1and Resolution2 in CA-G.R. SP No.
58090 which reversed, set aside and recalled the Regional Trial
Court (RTC) Orders3 in Civil Case No. 51203.
First, the long settled facts.
Marcelo and Teofista Isagon Suarez'4 marriage was blessed with
both material wealth and progeny in herein respondents, namely,
Danilo,5 Eufrocina, Marcelo Jr., Evelyn, and Reggineo, 6 all
surnamed Suarez. During their marriage, governed by the
conjugal partnership of gains regime, they acquired numerous
properties, which included the following: (1) a parcel of land
situated in Barrio Caniogan, Pasig with an area of 348 square
meters covered by Transfer Certificate of Title (TCT) No. 30680;
(2) property located in Pinagbuhatan, Pasig, with an area of 1,020
square meters under Tax Declaration No. A-016-01003; and (3)
Lot Nos. 5, 6 & 7, Block 2 covered by Tax Declaration No. A01700723 (subject properties).
After the death of Marcelo Sr. in 1955, Teofista and herein
respondents, as well as Elpidio Suarez, 7executed an Extrajudicial
Settlement of Estate,8 partitioning Marcelo Sr.'s estate, thus:
WHEREAS, the said deceased is survived by the parties hereto
who are his only legal heirs: TEOFISTA ISAGON, being the
surviving spouse, and EUFROCINA S. ANDRES, ELPIDIO SUAREZ,
DANILO SUAREZ, EVELYN SUAREZ, MARCELO SUAREZ, JR. and
REGGINEO SUAREZ, being the legitimate children of the deceased
with the said TEOFISTA ISAGON;
WHEREAS, the minors ELPIDIO, SUAREZ, DANILO SUAREZ, EVELYN
SUAREZ, MARCELO SUAREZ, JR. and REGGINEO SUAREZ are
represented herein by EUFROCINA S. ANDRES, in her capacity as
the guardian and legal administrator of the property of the said
minors;
WHEREAS, there are no known debts or financial obligations of
whatever nature and amount against the estate of the deceased;
(b) Three (3) parcels of land covered by TCT Nos. 33982, 33983
and 33984, situated at Barrio Pineda, Municipality of Pasig,
Province of Rizal, with an assessed value ofP560.00.
(c) A parcel of land covered by TCT 33986, situated at Barrio
Pineda, Municipality of Pasig, Province of Rizal, with an assessed
value of P440.00.
(d) Two (2) parcels of land, being Lots Nos. 42 and 44 of the
amendment-subdivision plan TY-4653-Amd., being a portion of Lot
2 described on the original plan II-4653, G.L.R.O. Record No. _____,
situated at Barrio Santolan, Municipality of Pasig, Province of
Rizal, with a total assessed value of P590.00.
(e) Two parcels of land, being Lots Nos. 43 and 45 of the
amendment-subdivision plan TY-4653-Amd., being a portion of Lot
2 described on the original plan II-4653, G.L.R.O. Record No.
_______, situated at Barrio Santolan, Municipality of Pasig, Province
of Rizal, with a total assessed value of P1,190.00.
(f) A parcel of land, being Lot No. 6, Block 269 of the subdivision
plan pos-112, being a portion of Lot 2, Block 348, Psd-3188,
G.L.R.O. Record Nos. 375,699 and 917, situated at San Felipe Neri,
Province of Rizal, with an assessed value of P6,340.00.
(g) A parcel of land covered by OCT No. 391, situated in the
Municipality of Taytay, Province of Rizal, with an assessed value
of P1,840.00.
(h) TWELVE THOUSAND (12,000) shares of stock of the
Consolidated Mines, Inc. represented by Certificate No. 71-5-B (for
1,000 shares) and Certificate No. 12736 (for 11,000 shares).
PROVIDED, that their title to the properties hereinabove
mentioned shall be in common and the share of each heir
being pro indiviso.
12. That all the efforts were in vain, as said record could not be
located anywhere;
13. That the undersigned now concludes that the first volume of
the above-entitled case was probably lost during the renovation of
the Justice Hall Building, and will have to be reconstituted with the
use of documents in the possession of the parties, or documents
entered as exhibits in other Courts.14
In this regard, herein respondents filed a Motion for Reconstitution
of Records15 of the case. Initially, petitioner Valente, and the other
defendants -- Violeta, Virginia and Maria Concepcion -- opposed
the motion.16 However, the trial court eventually granted the
motion for reconstitution, and ordered petitioner Valente and the
other defendants to submit a copy of their Answer filed thereat
and copies of other pleadings pertinent to the case. 17
Thereafter, three (3) incidents, among numerous others, set off by
the parties' pleadings, are worth mentioning, to wit:
1. A Motion for Leave to File and Admit Supplemental
Complaint18 filed by herein respondents. The Supplemental
Complaint additionally prayed that the levy and sale at public
auction of the subject properties be annulled and set aside, as the
bid price was unconscionable and grossly inadequate to the
current value of the subject properties. The Supplemental
Complaint further sought a re-bidding with respect to Teofista's
share in the subject properties. Finally, it prayed that TCT No.
6509 in the name of petitioner Valente, Violeta, Virginia and Maria
Concepcion be cancelled and TCT No. 30680 in the name of
Marcelo Suarez, married to Teofista Isagon, be reinstated.
2. A Manifestation and Motion (to Execute/Enforce Decision dated
September 4, 1992 of the Supreme Court)19 filed by herein
respondents pointing out that the Supreme Court itself had noted
the current increased value of the subject properties and that
petitioner Valente, Violeta, Virginia and Maria Concepcion unjustly
enriched themselves in appropriating the subject properties worth
millions then, for a measly bid price of P94,170.00, for a judgment
obligation worth only P70,000.00.
While this Court is of the view that trial on the merits is necessary
for the purpose of giving the plaintiffs [herein respondents] a
chance to adduce evidence to sustain their complaint and the
defendants [including petitioner Valente] to prove their defense,
consistent with the directive of the Honorable Supreme Court (in
its Decision promulgated on September 4, 1992), the Court is,
however, confronted with the very recent decision of the
Honorable Supreme Court in "Heirs of Guido Yaptinchay, et al. vs.
Del Rosario, et al., G.R. No. 124320, March 2, 1999" where it held
that The declaration of heirship must be made in an administration
proceeding, and not in an independent civil action. This doctrine
was reiterated in Solve vs. Court of Appeals (182 SCRA 119, 128).
The trial court cannot make a declaration of heirship in the civil
action for the reason that such a declaration can only be made in
a special proceeding. Under Section 3, Rule 1 of the 1997 Revised
Rules of Court, a civil action is defined as "one by which a party
sues another for the enforcement or protection of a right, or the
prevention or redress of a wrong" while a special proceeding is "a
remedy by which a party seeks to establish a status, a right, or a
particular fact." It is then decisively clear that the declaration of
heirship can be made only in a special proceeding inasmuch as
the petitioners here are seeking the establishment of a status or
right.
In as much as the leading case on the matter is that of "Heirs of
Yaptinchay v. Del Rosario, G.R. No. 124320, March 2, 1999" it is
left with no choice but to obey said latter doctrine.
WHEREFORE, the foregoing premises considered, this Court holds
that in the light of the doctrine laid down in the case of "Heirs of
Yaptinchay vs. Del Rosario, G.R. No. 124320, March 2, 1999" this
case is dismissed without prejudice to the plaintiffs' [herein
respondents'] filing a special proceeding consistent with said
latest ruling.26
Herein respondents moved for reconsideration thereof which,
however, was denied by the RTC, Branch 67 on March 14, 2000. 27
DECISION
SANDOVAL-GUTIERREZ, J.:
For our resolution is the instant Petition for Review
on Certiorari under Rule 45 of the 1997 Rules of Civil Procedure,
as amended, seeking to reverse the Decision 1 of the Court of
Appeals ( Sixteenth Division) dated January 14, 1999 in CA-G.R.
SP No. 49926.
The facts of the case are not in dispute, thus:
Spouses Domingo and Josefa Nicolas are the registered owners of
two (2) parcels of land located at Sanville Subdivision, Quezon
City as evidenced by Transfer Certificates of Title (TCT) Nos.
156339 and 156341 of the Registry of Deeds, same city. On these
lots is the residential house of spouses Nicolas and their two
children, herein petitioners. These properties are conjugal.
On May 19, 1986, Domingo Nicolas passed away.
On June 11, 1988, a fire gutted the office of the Register of Deeds
of Quezon City. Among the records destroyed were the original
copies of TCTs Nos. 156339 and 156341.
Sometime in 1988, Josefa Nicolas, the surviving spouse of
Domingo, filed with the Land Registration Administration (LRA) an
application for reconstitution of the two (2) land titles.
In 1991, the LRA approved the application and ordered the
reconstitution of the destroyed TCTs but only in the name of
applicant Josefa Nicolas.
In 1998, petitioners learned that their mother mortgaged the lots
with the Metropolitan Bank & Trust Co., herein respondent; that
the mortgage had been foreclosed; that respondent had the land
titles consolidated in its name; and that respondent filed with the
Regional Trial Court (RTC), Branch 77, Quezon City a petition for
the issuance of a writ of possession (LRC Case No. Q-8019[96])
which was granted on January 15, 1998.
Petitioners then filed with the RTC, Branch 22, Quezon City Civil
Case No. Q-98-34312 for Annulment of Reconstituted Titles,
Mortgage and Sale at Public Auction. This case is still pending
trial.
Petitioners also filed with the RTC, Branch 77, Quezon City a
motion to quash the writ of possession, but it was denied on
September 10, 1998. Thereupon, they filed with the Court of
Appeals a petition for certiorari, docketed as CA-G.R. SP No.
49926. However, the appellate court dismissed the petition. It
held that the trial court, in issuing the writ of possession in favor
of the respondent, did not commit grave abuse of discretion
amounting to lack or excess of jurisdiction considering that the
trial court has the ministerial task to issue such writ.
Petitioners seasonably filed a motion for reconsideration, but this
was denied by the Court of Appeals in its Resolution of February
24, 1999.
Hence, the instant petition.
Petitioners contend that the Court of Appeals erred in dismissing
their petition for certiorari, invoking our ruling inRivero de Ortega
v. Natividad2 which reads:
The general rule is that after a sale has been made under a
decree in a foreclosure suit, the court has the power to give
possession to the purchaser, and the latter will not be driven to
an action in law to obtain possession. The power of the court to
issue a process and place the purchaser in possession, is said to
rest upon the ground that it has power to enforce its own decrees
and thus avoid circuitous actions and vexatious litigation. But
where a party in possession was not a party to the foreclosure,
and did not acquire his possession from a person who was bound
by the decree, but who is a mere stranger and who entered into
possession before the suit was begun, the court has no power to
deprive him of possession by enforcing the decree. Thus, it was
held that only parties to the suit, persons who came in under
them pendente lite, and trespassers or intruders without title, can
be evicted by a writ of possession. The reason for this limitation is
that the writ does not issue in case of doubt, nor will a question of
legal title be tried or decided in proceedings looking to the
exercise of the power of the court to put a purchaser in
possession. A very serious question may arise upon full proofs as
to where the legal title to the property rests, and should not be
disposed of in a summary way. The petitioner, it is held, should be
required to establish his title in a proceeding directed to that end.
Here, petitioners as children and, therefore, compulsory heirs of
spouses Nicolas, acquired ownership of portions of the lots as
their legitime upon the death of their father or prior to the
foreclosure of mortgage and the filing by the respondent of its
petition for the issuance of a writ of possession. Consequently,
petitioners are strangers or third parties therein whose rights
cannot be determined as they were not impleaded by respondent.
Verily, they should not be deprived of their legitime by the
enforcement of the writ of possession. Clearly, therefore, the writ
of possession should not include parts of the two lots pertaining
to petitioners.
Records indicate that the estate of Domingo Nicolas has not been
judicially or extra-judicially settled.
SARMIENTO, J.:
This case is a chapter in an earlier suit decided by this
Court 1 involving the probate of the two wills of the late Dolores
Luchangco Vitug, who died in New York, U. S.A., on November 10,
1980, naming private respondent Rowena Faustino-Corona
executrix. In our said decision, we upheld the appointment of
Nenita Alonte as co-special administrator of Mrs. Vitug's estate
with her (Mrs. Vitug's) widower, petitioner Romarico G. Vitug,
pending probate.
On January 13, 1985, Romarico G. Vitug filed a motion asking for
authority from the probate court to sell certain shares of stock
and real properties belonging to the estate to cover allegedly his
advances to the estate in the sum of P667,731.66, plus interests,
which he claimed were personal funds. As found by the Court of
Appeals, 2the alleged advances consisted of P58,147.40 spent for
the payment of estate tax, P518,834.27 as deficiency estate tax,
and P90,749.99 as "increment thereto." 3 According to Mr. Vitug,
he withdrew the sums of P518,834.27 and P90,749.99 from
savings account No. 35342-038 of the Bank of America, Makati,
Metro Manila.
On April 12, 1985, Rowena Corona opposed the motion to sell on
the ground that the same funds withdrawn from savings account
No. 35342-038 were conjugal partnership properties and part of
the estate, and hence, there was allegedly no ground for
reimbursement. She also sought his ouster for failure to include
the sums in question for inventory and for "concealment of funds
belonging to the estate." 4
Vitug insists that the said funds are his exclusive property having
acquired the same through a survivorship agreement executed
with his late wife and the bank on June 19, 1970. The agreement
provides:
DECISION
DEL CASTILLO, J.:
It is incumbent upon those who oppose the probate of a will to
clearly establish that the decedent was not of sound and
disposing mind at the time of the execution of said will.
Otherwise, the state is duty-bound to give full effect to the wishes
of the testator to distribute his estate in the manner provided in
his will so long as it is legally tenable. 1
Before us is a Petition for Review on Certiorari 2 of the June 15,
2006 Decision3 of the Court of Appeals (CA) in CA-G.R. CV No.
80979 which reversed the September 30, 2003 Decision4 of the
Regional Trial Court (RTC), Branch 52, Guagua, Pampanga in
Special Proceedings No. G-1186. The assailed CA Decision granted
the petition for probate of the notarial will of Paciencia Regala
(Paciencia), to wit:
WHEREFORE, premises considered, finding the appeal to be
impressed with merit, the decision in SP. PROC. NO. G-1186 dated
30 September 2003, is hereby SET ASIDE and a new one entered
GRANTING the petition for the probate of the will of PACIENCIA
REGALA.
SO ORDERED.5
Also assailed herein is the August 31, 2006 CA Resolution 6 which
denied the Motion for Reconsideration thereto.
Petitioners call us to reverse the CAs assailed Decision and
instead affirm the Decision of the RTC which disallowed the
notarial will of Paciencia.
Factual Antecedents
Paciencia was a 78 year old spinster when she made her last will
and testament entitled "Tauli Nang Bilin o Testamento Miss
Paciencia Regala"7 (Will) in the Pampango dialect on September
13, 1981. The Will, executed in the house of retired Judge
Ernestino G. Limpin (Judge Limpin), was read to Paciencia twice.
After which, Paciencia expressed in the presence of the
instrumental witnesses that the document is her last will and
testament. She thereafter affixed her signature at the end of the
said document on page 38 and then on the left margin of pages 1,
2 and 4 thereof.9
The witnesses to the Will were Dra. Maria Lioba A. Limpin (Dra.
Limpin), Francisco Garcia (Francisco) and Faustino R. Mercado
(Faustino). The three attested to the Wills due execution by
affixing their signatures below its attestation clause 10 and on the
left margin of pages 1, 2 and 4 thereof,11 in the presence of
Paciencia and of one another and of Judge Limpin who acted as
notary public.
Childless and without any brothers or sisters, Paciencia
bequeathed all her properties to respondent Lorenzo R. Laxa
(Lorenzo) and his wife Corazon F. Laxa and their children Luna
Lorella Laxa and Katherine Ross Laxa, thus:
xxxx
Fourth - In consideration of their valuable services to me since
then up to the present by the spouses LORENZO LAXA and
CORAZON F. LAXA, I hereby BEQUEATH, CONVEY and GIVE all my
properties enumerated in parcels 1 to 5 unto the spouses
LORENZO R. LAXA and CORAZON F. LAXA and their children, LUNA
LORELLA LAXA and KATHERINE LAXA, and the spouses Lorenzo R.
Laxa and Corazon F. Laxa both of legal age, Filipinos, presently
residing at Barrio Sta. Monica, [Sasmuan], Pampanga and their
children, LUNA LORELLA and KATHERINE ROSS LAXA, who are still
not of legal age and living with their parents who would decide to
bequeath since they are the children of the spouses;
xxxx
For his part, Lorenzo testified that: from 1944 until his departure
for the USA in April 1980, he lived in Sasmuan, Pampanga with his
family and his aunt, Paciencia; in 1981 Paciencia went to the USA
and lived with him and his family until her death in January 1996;
the relationship between him and Paciencia was like that of a
mother and child since Paciencia took care of him since birth and
took him in as an adopted son; Paciencia was a spinster without
children, and without brothers and sisters; at the time of
Paciencias death, she did not suffer from any mental disorder and
was of sound mind, was not blind, deaf or mute; the Will was in
the custody of Judge Limpin and was only given to him after
Paciencias death through Faustino; and he was already residing in
the USA when the Will was executed.33 Lorenzo positively
identified the signature of Paciencia in three different documents
and in the Will itself and stated that he was familiar with
Paciencias signature because he accompanied her in her
transactions.34 Further, Lorenzo belied and denied having used
force, intimidation, violence, coercion or trickery upon Paciencia
to execute the Will as he was not in the Philippines when the
same was executed.35 On cross-examination, Lorenzo clarified
that Paciencia informed him about the Will shortly after her arrival
in the USA but that he saw a copy of the Will only after her
death.36
As to Francisco, he could no longer be presented in court as he
already died on May 21, 2000.
For petitioners, Rosie testified that her mother and Paciencia were
first cousins.37 She claimed to have helped in the household
chores in the house of Paciencia thereby allowing her to stay
therein from morning until evening and that during the period of
her service in the said household, Lorenzos wife and his children
were staying in the same house.38 She served in the said
household from 1980 until Paciencias departure for the USA on
September 19, 1981.39
The attestation shall state the number of pages used upon which
the will is written, and the fact that the testator signed the will
and every page thereof, or caused some other person to write his
name, under his express direction, in the presence of the
instrumental witnesses, and that the latter witnessed and signed
the will and all the pages thereof in the presence of the testator
and of one another.
If the attestation clause is in a language not known to the
witnesses, it shall be interpreted to them.
Art. 806. Every will must be acknowledged before a notary public
by the testator and the witnesses. The notary public shall not be
required to retain a copy of the will, or file another with the Office
of the Clerk of Court.
Here, a careful examination of the face of the Will shows faithful
compliance with the formalities laid down by law. The signatures
of the testatrix, Paciencia, her instrumental witnesses and the
notary public, are all present and evident on the Will. Further, the
attestation clause explicitly states the critical requirement that
the testatrix and her instrumental witnesses signed the Will in the
presence of one another and that the witnesses attested and
subscribed to the Will in the presence of the testator and of one
another. In fact, even the petitioners acceded that the signature
of Paciencia in the Will may be authentic although they question
her state of mind when she signed the same as well as the
voluntary nature of said act.
The burden to prove that Paciencia was of unsound mind at the
time of the execution of the will lies on the shoulders of the
petitioners.
Petitioners, through their witness Rosie, claim that Paciencia was
"magulyan" or forgetful so much so that it effectively stripped her
of testamentary capacity. They likewise claimed in their Motion for
Reconsideration66 filed with the CA that Paciencia was not only
"magulyan" but was actually suffering from paranoia. 67
We are not convinced.
B. Formalities of Wills
1. Ordinary Wills (Arts 804-809)
A.M. No. 2026-CFI December 19, 1981
NENITA DE VERA SUROZA, complainant,
vs.
JUDGE REYNALDO P. HONRADO of the Court of First Instance of Rizal, Pasig Branch
25 and EVANGELINE S. YUIPCO, Deputy Clerk of Court, respondents.
AQUINO, J.:
Should disciplinary action be taken against respondent judge for
having admitted to probate a will, which on its face
is void because it is written in English, a language not known to
the illiterate testatrix, and which is probably aforged will because
she and the attesting witnesses did not appear before the notary
as admitted by the notary himself?
That question arises under the pleadings filed in the testate case
and in the certiorari case in the Court of Appeals which reveal the
following tangled strands of human relationship:
Mauro Suroza, a corporal in the 45th Infantry of the U.S. Army
(Philippine Scouts), Fort McKinley, married Marcelina Salvador in
1923 (p. 150, Spec. Proc. No. 7816). They were childless. They
reared a boy named Agapito who used the surname Suroza and
who considered them as his parents as shown in his 1945
marriage contract with Nenita de Vera (p. 15, Rollo of CA-G.R. No.
08654-R; p. 148, Rollo of Testate Case showing that Agapito was 5
years old when Mauro married Marcelina in 1923).
Mauro died in 1942. Marcelina, as a veteran's widow, became a
pensioner of the Federal Government. That explains why on her
death she had accumulated some cash in two banks.
Agapito and Nenita begot a child named Lilia who became a
medical technologist and went abroad. Agapito also became a
soldier. He was disabled and his wife Nenita was appointed as his
guardian in 1953 when he was declared an incompetent in Special
Proceeding No. 1807 of the Court of First Instance of Rizal, Pasig
Branch I (p. 16, Rollo of CA-G.R. No. 08654-R).
In that connection, it should be noted that a woman named
Arsenia de la Cruz wanted also to be his guardian in another
proceeding. Arsenia tried to prove that Nenita was living
separately from Agapito and that she (Nenita) admitted to
Marcelina that she was unfaithful to Agapito (pp. 61-63, Record of
testate case).
September 5, 1936
Julian Rodriguez and Gliceria Quisonia testified that they had not
seen Attorney Almario in the morning of September 7, 1933, in
the house of the deceased where they were then living, and that
the first time that they saw him there was at about 12 o'clock
noon on September 8th of said year, when Leoncia Tolentino was
already dead, Gliceria Quisonia stating that on that occasion
Almario arrived there accompanied only by woman named Pacing.
They did not state that Almario was accompanied by Pedro L.
Cruz, Jose Ferrer Cruz and Perfecto L. Ona, the instrumental
witnesses of the will. Said two witnesses, however, could not but
admit that their room was situated at the other end of the rooms
occupied by the deceased herself and by the petitioner Victorio
Payad, and that their said room and that of Victorio Payad are
separated by the stairs of the house; that Gliceria Quisonia saw
the deceased only once on the 7th and twice on the 8th, and that
Julian Rodriguez stayed in his room, without leaving it, from 9 to
12 o'clock a. m. on the 7th of said month. Gliceria Quisonia
further stated that in the morning of September 7th, she prepared
the noonday meal in the kitchen which was situated under the
house. Under such circumstances it is not strange that the two did
not see the testatrix when, according to the evidence for the
petitioner, she made her will and signed it by means of her
thumbmark. In order to be able to see her and also Almario and
the instrumental witnesses of the will, on that occasion, it was
necessary for them to enter the room where the deceased was, or
at least the adjoining room where the will was prepared by
Attorney Almario, but they did not do so.
Gliceria Quisonia and Julian Rodriguez also testified that on the
7th the testatrix was already so weak that she could not move
and that she could hardly be understood because she could no
longer enunciate, making it understood thereby, that in such
condition it was absolutely impossible for her to make any will.
The attorney for the oppositor insists likewise and more so
because, according to him and his witness Paz de Leon, two days
before the death of the testatrix, or on September 6, 1933, she
could not even open her eyes or make herself understood.
(Sgd.) "ROSENDA
CORTES
Nor is such requirement found in any other branch of the law. The
name of a person who is unable to write may be signed by
another by express direction to any instrument known to the law.
There is no necessity whatever, so far as the validity of the
instrument is concerned, for the person who writes the name of
the principal in the document to sign his own name also. As a
matter of policy it may be wise that he do so inasmuch as it would
give such intimation as would enable a person proving the
document to demonstrate more readily the execution by the
principal. But as a matter of essential validity of the document, it
is unnecessary. The main thing to be established in the execution
of the will is the signature of the testator. If that signature is
proved, whether it be written by himself or by another at his
request, it is none the less valid, and the fact of such signature
can be proved as perfectly and as completely when the person
signing for the principal omits to sign his own name as it can
when he actually signs. To hold a will invalid for the lack of the
signature of the person signing the name of the principal is, in the
particular case, a complete abrogation of the law of wills, as it
rejects and destroys a will which the statute expressly declares is
valid.
There have been cited three cases which it is alleged are in
opposition to the doctrine which we have herein laid down. They
are Ex parte Santiago (4 Phil. Rep., 692), Ex parte Arcenas (4 Phil.
Rep., 700), and Guison vs.Concepcion (5 Phil. Rep., 551). Not one
of these cases is in point. The headnote in the case last above
stated gives an indication of what all of cases are and the
question involved in each one of them. It says:
The testatrix was not able to sign it for her. Instead of writing her
name he wrote his own upon the will.Held, That the will was not
duly executed.
All of the above cases are precisely of this character. Every one of
them was a case in which the person who signed the will for the
testator wrote his own name to the will instead of writing that of
the testator, so that the testator's name nowhere appeared
attached to the will as the one who executed it. The case of Ex
parte Arcenas contains the following paragraph:
Where a testator does not know, or is unable for any reason, to
sign the will himself, it shall be signed in the following manner:
"John Doe, by the testator, Richard Roe;" or in this form: "By the
testator. John Doe, Richard Roe." All this must be written by the
witness signing at the request of the testator.
The only question for decision in that case, as we have before
stated, was presented by the fact that the person who was
authorized to sign the name of the testator to the will actually
failed to sign such name but instead signed his own thereto. The
decision in that case related only to that question.
Aside from the presentation of an alleged subsequent will the
contestants in this case have set forth no reason whatever why
the will involved in the present litigation should not be probated.
The due and legal execution of the will by the testatrix is clearly
established by the proofs in this case. Upon the facts, therefore,
the will must be probated. As to the defense of a subsequent will,
that is resolved in case No. 6284 of which we have already
spoken. We there held that said later will not the will of the
deceased.
The judgment of the probate court must be and is hereby
reversed and that court is directed to enter an order in the usual
form probating the will involved in this litigation and to proceed
with such probate in accordance with law.
Arellano, C.J., Mapa and Carson, JJ., concur.
Separate Opinions
TORRES, J., concurring:
The undersigned agrees and admits that section 618 of the Code
of Civil Procedure does not expressly require that, when the
testator or testatrix is unable or does not know how to sign, the
person who, in the presence and under the express direction of
either of them, writes in the name of the said testator or testatrix
must also sign his own name thereto, it being sufficient for the
validity of the will that the said person so requested to sign the
testator or testatrix write the name of either in his own
handwriting.
Since this court began to decide cases with regard to the form,
conditions and validity of wills executed in accordance with the
provisions of the Code of Civil Procedure, never has the specific
point just above mentioned been brought into question. Now for
the first time is affirmed in the majority opinion, written by the
learned and distinguished Hon. Justice Moreland, that, not being
required by the said code, the signature of the name of the
person who, at the request of the testator or testatrix, writes the
name of either of the latter to the will executed, is not necessary.
Various and considerable in number have been the decisions
rendered by this court in which, as will be seen further on, upon
applying the said section 618 of Code of Civil Procedure and
requiring its observance in cases where the testator or testatrix is
unable or does not know how to sign his or her name, expressly
prescribed the practical method of complying with the provisions
of the law on the subject. Among these decisions several were
written by various justices of this court, some of whom are no
longer on this bench, as they have ceased to hold such position.
Paragraph 2 of the syllabus of case No. 2002, Ex parte Delfin
Santiago,1 concerning the probate of a will, reads as follows:
Wills, authentication of . Where a will is not signed by a testator
but by some other person in his presence and by his direction,
such other person should affix the name of the testator thereto,
and it is not sufficient that he sign his own name for and instead
of the name of the testator.
Paragraph 1 of the syllabus of case No. 1708, Ex
parte Arcenas,2 in the matter of the probate of a will, states:
The recital of the name of the testator as written below the will at
his request serves as a signature by a third person.
Moreover among the grounds given as a basis for this same
decision, the following appears:
In sustaining this form of signature, this court does not intend to
qualify the decisions in Ex parte Santiago (4 Phil. Rep., 692), Ex
parte Arcenas, above quoted, or in Abaya vs. Zalamero. In the
Arcenas case the court pointed out the correct formula for a
signature which ought to be followed, but did not mean to exclude
any other for substantially equivalent.
In the syllabus of decision No. 4454,6 Ex parte Ondevilla et al., the
following appears:
The testatrix was unable to sign her will with her own hand and
requested another person to sign for her in her presence. This the
latter did, first writing the name of the testatrix and signing his
own name below:Held, That the signature of the testatrix so
affixed is sufficient and a will thus executed is admissible to
probate. (Ex parte Arcenas, 4 Phil. Rep., 700.)
The syllabus of decision No. 51497 sets forth that:
The legality of a will is not affected by the insertion, supposed to
have been made subsequently, of another name before that of
the testator when such name may be treated as nonexistent
without affecting its validity.
Among the conclusions contained in this last decision the
following is found:
Although the said words "For Simplicia de los Santos" be
considered as inserted subsequently, which we neither affirm nor
deny, because a specific determination either way is unnecessary,
in our opinion the signature for the testatrix placed outside of the
body of the will contains the name of the testatrix as if she signed
the will, and also the signature of the witness who, at her request,
wrote the name of the testatrix and signed for her, affirming the
truth of this fact, attested by the other witnesses then present.
And this fully complies with the provisions of section 618 of the
Act.
It is true that in none of the decisions above quoted was the rule
established that the person who, at the request of the testator or
testatrix, signed the latter's or the former's name and surname to
the will must affix his own signature; but it no less true that, in
prescribing the method in which the provisions of the said section
618 to be complied with, it was stated that, in order that a will so
executed might be admitted to probate, it was an indispensable
requisite that the person requested to sign in place of the testator
or testatrix, should write the latter's or the former's name and
surname at the foot of the will in the presence and under the
direction of either, as the case might be, and should afterwards
sign the instrument with his own name and surname.
The statement that the person who writes the name and surname
of the testator or testatrix at the foot of the will should likewise
affix his own signature thereto, name and surname, though it be
considered to be neither a rule nor a requisite necessary to follow
for the admission of the will to probate, yet it is unquestionable
that, in inserting this last above-mentioned detail in the aforesaid
decisions, it was deemed to be a complement and integral part of
the required conditions for the fulfillment of the provisions of the
law.
It is undisputable that the latter does not require the said
subscription and signature of the person requested to affix to the
will the name of the testator or testatrix who is not able to sign;
but by stating in the decisions hereinabove quoted that the name
and surname of the said person should be affixed by him, no act
prohibited by law was recommended or suggested, nor may such
a detail be understood to be contrary or opposed to the plain
provisions thereof.
We have examined the record and are satisfied, as the trial court
was, that the testatrix signed both original and duplicate copies
(Exhibits "A" and "A-1", respectively) of the will spontaneously, on
the same in the presence of the three attesting witnesses, the
notary public who acknowledged the will; and Atty. Samson, who
actually prepared the documents; that the will and its duplicate
were executed in Tagalog, a language known to and spoken by
both the testator and the witnesses, and read to and by the
testatrix and Atty. Fermin Samson, together before they were
actually signed; that the attestation clause is also in a language
known to and spoken by the testatrix and the witnesses. The
opinion of expert for oppositors, Mr. Felipe Logan, that the
signatures of the testatrix appearing in the duplicate original were
not written by the same had which wrote the signatures in the
original will leaves us unconvinced, not merely because it is
directly contradicted by expert Martin Ramos for the proponents,
but principally because of the paucity of the standards used by
him to support the conclusion that the differences between the
standard and questioned signatures are beyond the writer's range
of normal scriptural variation. The expert has, in fact, used as
standards only three other signatures of the testatrix besides
those affixed to the original of the testament (Exh. A); and we feel
that with so few standards the expert's opinion and the signatures
in the duplicate could not be those of the testatrix becomes
extremely hazardous. This is particularly so since the comparison
charts Nos. 3 and 4 fail to show convincingly that the are radical
differences that would justify the charge of forgery, taking into
account the advanced age of the testatrix, the evident variability
of her signatures, and the effect of writing fatigue, the duplicate
being signed right the original. These, factors were not discussed
by the expert.
This would not be the first time that this Court departs from a
strict and literal application of the statutory requirements, where
the purposes of the law are otherwise satisfied. Thus, despite the
literal tenor of the law, this Court has held that a testament, with
the only page signed at its foot by testator and witnesses, but not
in the left margin, could nevertheless be probated (Abangan vs.
Abangan, 41 Phil. 476); and that despite the requirement for the
correlative lettering of the pages of a will, the failure to make the
first page either by letters or numbers is not a fatal defect (Lopez
vs. Liboro, 81 Phil. 429). These precedents exemplify the Court's
policy to require satisfaction of the legal requirements in order to
guard against fraud and bid faith but without undue or
unnecessary curtailment of the testamentary privilege.
The appellants also argue that since the original of the will is in
existence and available, the duplicate (Exh. A-1) is not entitled to
probate. Since they opposed probate of original because it lacked
one signature in its third page, it is easily discerned that
oppositors-appellants run here into a dilemma; if the original is
defective and invalid, then in law there is no other will but the
duly signed carbon duplicate (Exh. A-1), and the same is
probatable. If the original is valid and can be probated, then the
objection to the signed duplicate need not be considered, being
superfluous and irrelevant. At any rate, said duplicate, Exhibit A-1,
serves to prove that the omission of one signature in the third
page of the original testament was inadvertent and not
intentional.
In requiring that each and every sheet of the will should also be
signed on the left margin by the testator and three witnesses in
the presence of each other, Act No. 2645 (which is the one
applicable in the case) evidently has for its object (referring to the
body of the will itself) to avoid the substitution of any of said
sheets, thereby changing the testator's dispositions. But when
these dispositions are wholly written on only one sheet signed at
the bottom by the testator and three witnesses (as the instant
case), their signatures on the left margin of said sheet would be
completely purposeless. In requiring this signature on the margin,
the statute took into consideration, undoubtedly, the case of a will
written on several sheets and must have referred to the sheets
which the testator and the witnesses do not have to sign at the
bottom. A different interpretation would assume that the statute
requires that this sheet, already signed at the bottom, be signed
twice. We cannot attribute to the statute such an intention. As
these signatures must be written by the testator and the
witnesses in the presence of each other, it appears that, if the
signatures at the bottom of the sheet guaranties its authenticity,
another signature on its left margin would be unneccessary; and if
they do not guaranty, same signatures, affixed on another part of
same sheet, would add nothing. We cannot assume that the
statute regards of such importance the place where the testator
and the witnesses must sign on the sheet that it would consider
that their signatures written on the bottom do not guaranty the
authenticity of the sheet but, if repeated on the margin, give
sufficient security.
In requiring that each and every page of a will must be numbered
correlatively in letters placed on the upper part of the sheet, it is
likewise clear that the object of Act No. 2645 is to know whether
any sheet of the will has been removed. But, when all the
dispositive parts of a will are written on one sheet only, the object
of the statute disappears because the removal of this single
sheet, although unnumbered, cannot be hidden.
The will, consisting of two (2) pages and written in the vernacular
Pilipino, read in full:
HULING HABILIN NI EUGENIA E. IGSOLO
SA NGALAN NG MAYKAPAL, AMEN:
AKO, si EUGENIA E. IGSOLO, nakatira sa 500 San Diego St.,
Sampaloc, Manila, pitongput siyam (79) na gulang, nasa hustong
pagi-isip, pag-unawa at memoria ay nag-hahayag na ito na ang
aking huling habilin at testamento, at binabali wala ko lahat ang
naunang ginawang habilin o testamento:
Una-Hinihiling ko na ako ay mailibing sa Sementerio del Norte, La
Loma sang-ayong sa kaugalian at patakaran ng simbahang
katoliko at ang taga-pag-ingat (Executor) ng habiling ito ay
magtatayo ng bantayog upang silbing ala-ala sa akin ng aking
pamilya at kaibigan;
Pangalawa-Aking ipinagkakaloob at isinasalin ang lahat ng
karapatan sa aking pamangkin na si Felix Azuela, na siyang nagalaga sa akin sa mahabang panahon, yaong mga bahay na
nakatirik sa lote numero 28, Block 24 at nakapangalan sa
Pechaten Korporasyon, ganoon din ibinibigay ko ang lahat ng
karapatan sa bahay na nakatirik sa inoopahan kong lote, numero
43, Block 24 na pag-aari ng Pechaten Corporation. Ipinagkakaloob
kong buong buo ang lahat ng karapatan sa bahay at lupa na nasa
500 San Diego St., Lot 42, Block 24, Sampaloc, Manila kay Felix
Azuela at ang pagkakaloob kong ito ay walang pasubalit at
kondiciones;
Pangatlo- Na ninunumbrahan ko si VART PAGUE na siyang
nagpapatupad ng huling habiling ito at kagustuhan ko rin na hindi
na kailanman siyang mag-lagak ng piyansiya.
Aking nilagdaan ang Huling Habilin na ito dito sa Maynila ika 10
ng Hunyo, 1981.
(Sgd.)
EUGENIA E. IGSOLO
(Tagapagmana)
PATUNAY NG MGA SAKSI
The probate petition adverted to only two (2) heirs, legatees and
devisees of the decedent, namely: petitioner himself, and one
Irene Lynn Igsolo, who was alleged to have resided abroad.
Petitioner prayed that the will be allowed, and that letters
testamentary be issued to the designated executor, Vart Prague.
The petition was opposed by Geralda Aida Castillo (Geralda
Castillo), who represented herself as the attorney-in-fact of "the
12 legitimate heirs" of the decedent.2 Geralda Castillo claimed
that the will is a forgery, and that the true purpose of its
emergence was so it could be utilized as a defense in several
court cases filed by oppositor against petitioner, particularly for
forcible entry and usurpation of real property, all centering on
petitioners right to occupy the properties of the decedent. 3 It also
asserted that contrary to the representations of petitioner, the
decedent was actually survived by 12 legitimate heirs, namely
her grandchildren, who were then residing abroad. Per records, it
was subsequently alleged that decedent was the widow of
Bonifacio Igsolo, who died in 1965,4 and the mother of a
legitimate child, Asuncion E. Igsolo, who predeceased her mother
by three (3) months.5
Oppositor Geralda Castillo also argued that the will was not
executed and attested to in accordance with law. She pointed out
that decedents signature did not appear on the second page of
the will, and the will was not properly acknowledged. These twin
arguments are among the central matters to this petition.
After due trial, the RTC admitted the will to probate, in an Order
dated 10 August 1992.6 The RTC favorably took into account the
testimony of the three (3) witnesses to the will, Quirino Agrava,
Lamberto Leano, and Juanito Estrada. The RTC also called to fore
"the modern tendency in respect to the formalities in the
execution of a will x x x with the end in view of giving the testator
more freedom in expressing his last wishes;" 7 and from this
perspective, rebutted oppositors arguments that the will was not
properly executed and attested to in accordance with law.
With regard to the oppositors argument that the will was not
numbered correlatively in letters placed on upper part of each
page and that the attestation did not state the number of pages
thereof, it is worthy to note that the will is composed of only two
pages. The first page contains the entire text of the testamentary
dispositions, and the second page contains the last portion of the
attestation clause and acknowledgement. Such being so, the
defects are not of a serious nature as to invalidate the will. For the
same reason, the failure of the testatrix to affix her signature on
the left margin of the second page, which contains only the last
portion of the attestation clause and acknowledgment is not a
fatal defect.
As regards the oppositors assertion that the signature of the
testatrix on the will is a forgery, the testimonies of the three
subscribing witnesses to the will are convincing enough to
establish the genuineness of the signature of the testatrix and the
due execution of the will.8
The Order was appealed to the Court of Appeals by Ernesto
Castillo, who had substituted his since deceased mother-in-law,
Geralda Castillo. In a Decision dated 17 August 1995, the Court of
Appeals reversed the trial court and ordered the dismissal of the
petition for probate.9 The Court of Appeals noted that the
attestation clause failed to state the number of pages used in the
will, thus rendering the will void and undeserving of probate. 10
Hence, the present petition.
Petitioner argues that the requirement under Article 805 of the
Civil Code that "the number of pages used in a notarial will be
stated in the attestation clause" is merely directory, rather than
mandatory, and thus susceptible to what he termed as "the
substantial compliance rule."11
The solution to this case calls for the application of Articles 805
and 806 of the Civil Code, which we replicate in full.
In the same vein, petitioner cites the report of the Civil Code
Commission, which stated that "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. This objective is in
accord with the [modern tendency] in respect to the formalities in
the execution of wills."24 However, petitioner conveniently omits
the qualification offered by the Code Commission in the very
same paragraph he cites from their report, that such liberalization
be "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."25
Caneda v. Court of Appeals26 features an extensive discussion
made by Justice Regalado, speaking for the Court on the
conflicting views on the manner of interpretation of the legal
formalities required in the execution of the attestation clause in
wills.27 Uy Coque and Andrada are cited therein, along with
several other cases, as examples of the application of the rule of
strict construction.28 However, the Code Commission opted to
recommend a more liberal construction through the "substantial
compliance rule" under Article 809. A cautionary note was struck
though by Justice J.B.L. Reyes as to how Article 809 should be
applied:
x x x The rule must be limited to disregarding those defects that
can be supplied by an examination of the will itself: whether all
the pages are consecutively numbered; whether the signatures
appear in each and every page; whether the subscribing
witnesses are three or the will was notarized. All these are facts
that the will itself can reveal, and defects or even omissions
concerning them in the attestation clause can be safely
disregarded. But the total number of pages, and whether all
persons required to sign did so in the presence of each other must
substantially appear in the attestation clause, being the only
check against perjury in the probate proceedings. 29 (Emphasis
supplied.)
For one, the attestation clause was not signed by the instrumental
witnesses. While the signatures of the instrumental witnesses
appear on the left-hand margin of the will, they do not appear at
the bottom of the attestation clause which after all consists of
their averments before the notary public.
Cagro v. Cagro36 is material on this point. As in this case, "the
signatures of the three witnesses to the will do not appear at the
bottom of the attestation clause, although the page containing
the same is signed by the witnesses on the left-hand
margin."37 While three (3) Justices38 considered the signature
requirement had been substantially complied with, a majority of
six (6), speaking through Chief Justice Paras, ruled that the
attestation clause had not been duly signed, rendering the will
fatally defective.
There is no question that the signatures of the three witnesses to
the will do not appear at the bottom of the attestation clause,
although the page containing the same is signed by the witnesses
on the left-hand margin.
We are of the opinion that the position taken by the appellant is
correct. The attestation clause is "a memorandum of the facts
attending the execution of the will" required by law to be made by
the attesting witnesses, and it must necessarily bear their
signatures. An unsigned attestation clause cannot be considered
as an act of the witnesses, since the omission of their signatures
at the bottom thereof negatives their participation.
The petitioner and appellee contends that signatures of the three
witnesses on the left-hand margin conform substantially to the
law and may be deemed as their signatures to the attestation
clause. This is untenable, because said signatures are in
compliance with the legal mandate that the will be signed on the
left-hand margin of all its pages. If an attestation clause not
signed by the three witnesses at the bottom thereof, be admitted
as sufficient, it would be easy to add such clause to a will on a
subsequent occasion and in the absence of the testator and any
or all of the witnesses.39
Yet, there is another fatal defect to the will on which the denial of
this petition should also hinge. The requirement under Article 806
that "every will must be acknowledged before a notary public by
the testator and the witnesses" has also not been complied with.
The importance of this requirement is highlighted by the fact that
it had been segregated from the other requirements under Article
805 and entrusted into a separate provision, Article 806. The nonobservance of Article 806 in this case is equally as critical as the
other cited flaws in compliance with Article 805, and should be
treated as of equivalent import.
In lieu of an acknowledgment, the notary public, Petronio Y.
Bautista, wrote "Nilagdaan ko at ninotario ko ngayong10 ng
Hunyo 10 (sic), 1981 dito sa Lungsod ng Maynila."40 By no manner
of contemplation can those words be construed as an
acknowledgment. An acknowledgment is the act of one who has
executed a deed in going before some competent officer or court
and declaring it to be his act or deed. 41 It involves an extra step
undertaken whereby the signor actually declares to the notary
that the executor of a document has attested to the notary that
the same is his/her own free act and deed.
It might be possible to construe the averment as a jurat, even
though it does not hew to the usual language thereof. A jurat is
that part of an affidavit where the notary certifies that before
him/her, the document was subscribed and sworn to by the
executor.42 Ordinarily, the language of the jurat should avow that
the document was subscribed and sworn before the notary public,
while in this case, the notary public averred that he himself
"signed and notarized" the document. Possibly though, the word
"ninotario" or "notarized" encompasses the signing of and
swearing in of the executors of the document, which in this case
would involve the decedent and the instrumental witnesses.
PANGANIBAN, J.:
The law favors the probate of a will. Upon those who oppose it
rests the burden of showing why it should not be allowed. In the
present case, petitioner has failed to discharge this burden
satisfactorily. For this reason, the Court cannot attribute any
reversible error on the part of the appellate tribunal that allowed
the probate of the will.
The Case
Before the Court is a Petition for Review1 under Rule 45 of the
Rules of Court, seeking to reverse and set aside the December 12,
2002 Decision2 and the March 7, 2003 Resolution3 of the Court of
Appeals (CA) in CA-GR CV No. 44296. The assailed Decision
disposed as follows:
"WHEREFORE, the appeal is GRANTED, and the Decision appealed
from is REVERSED and SET ASIDE. In its place judgment is
rendered approving and allowing probate to the said last will and
testament of Placido Valmonte and ordering the issuance of
letters testamentary to the petitioner Josefina Valmonte. Let this
case be remanded to the court a quo for further and concomitant
proceedings."4
The assailed Resolution denied petitioners Motion for
Reconsideration.
The Facts
The facts were summarized in the assailed Decision of the CA, as
follows:
"x x x: Like so many others before him, Placido toiled and lived for
a long time in the United States until he finally reached
retirement. In 1980, Placido finally came home to stay in the
Philippines, and he lived in the house and lot located at #9200
Catmon St., San Antonio Village, Makati, which he owned in
common with his sister Ciriaca Valmonte and titled in their names
in TCT 123468. Two years after his arrival from the United States
and at the age of 80 he wed Josefina who was then 28 years old,
in a ceremony solemnized by Judge Perfecto Laguio, Jr. on
February 5, 1982. But in a little more than two years of wedded
bliss, Placido died on October 8, 1984 of a cause written down
as COR PULMONALE.
"Placido executed a notarial last will and testament written in
English and consisting of two (2) pages, and dated June 15, 1983
but acknowledged only on August 9, 1983. The first page contains
the entire testamentary dispositions and a part of the attestation
clause, and was signed at the end or bottom of that page by the
testator and on the left hand margin by the three instrumental
witnesses. The second page contains the continuation of the
attestation clause and the acknowledgment, and was signed by
the witnesses at the end of the attestation clause and again on
the left hand margin. It provides in the body that:
LAST WILL AND TESTAMENT OF PLACIDO VALMONTE IN THE
NAME OF THE LORD AMEN:
I, PLACIDO VALMONTE, of legal age, married to Josefina Cabansag
Valmonte, and a resident of 9200 Catmon Street, Makati, Metro
Manila, 83 years of age and being of sound and disposing mind
and memory, do hereby declare this to be my last will and
testament:
1. It is my will that I be buried in the Catholic Cemetery, under the
auspices of the Catholic Church in accordance with the rites and
said Church and that a suitable monument to be erected and
provided my by executrix (wife) to perpetuate my memory in the
minds of my family and friends;
"It then found these grounds extant and proven, and accordingly
disallowed probate."5
Ruling of the Court of Appeals
Reversing the trial court, the appellate court admitted the will of
Placido Valmonte to probate. The CA upheld the credibility of the
notary public and the subscribing witnesses who had
acknowledged the due execution of the will. Moreover, it held that
the testator had testamentary capacity at the time of the
execution of the will. It added that his "sexual exhibitionism and
unhygienic, crude and impolite ways"6 did not make him a person
of unsound mind.
Hence, this Petition.7
Issues
Petitioner raises the following issues for our consideration:
"I.
Whether or not the findings of the probate court are entitled to
great respect.
"II.
Whether or not the signature of Placido Valmonte in the subject
will was procured by fraud or trickery, and that Placido Valmonte
never intended that the instrument should be his last will and
testament.
"III.
Whether or not Placido Valmonte has testamentary capacity at
the time he allegedly executed the subject will." 8
In short, petitioner assails the CAs allowance of the probate of
the will of Placido Valmonte.
This Courts Ruling
The Petition has no merit.
Main Issue:
Probate of a Will
Q Why did you not make the necessary correction on the date
appearing on the body of the document as well as the attestation
clause?
A Because I do not like anymore to make some alterations so I put
it in my own handwriting August 9, 1983 on the
acknowledgement. (tsn, June 11, 1985, pp. 8-10)
Eugenio Gomez:
Q It appears on the first page Mr. Witness that it is dated June 15,
1983, whereas in the acknowledgement it is dated August 9,
1983, will you look at this document and tell us this discrepancy
in the date?
A We went to Atty. Sarmiento together with Placido Valmonte and
the two witnesses; that was first week of June and Atty. Sarmiento
told us to return on the 15th of June but when we returned, Atty.
Sarmiento was not there.
Q When you did not find Atty. Sarmiento on June 15, 1983, did you
again go back?
A We returned on the 9th of August and there we signed.
Q This August 9, 1983 where you said it is there where you
signed, who were your companions?
A The two witnesses, me and Placido Valmonte. (tsn, November
25, 1985, pp. 7-8)
Felisa Gomez on cross-examination:
Q Why did you have to go to the office of Atty. Floro Sarmiento,
three times?
xxxxxxxxx
A The reason why we went there three times is that, the first
week of June was out first time. We went there to talk to Atty.
Sarmiento and Placido Valmonte about the last will and
testament. After that what they have talked what will be placed in
the testament, what Atty. Sarmiento said was that he will go back
on the 15th of June. When we returned on June 15, Atty.
Sarmiento was not there so we were not able to sign it, the will.
That is why, for the third time we went there on August 9 and that
was the time we affixed our signature. (tsn, October 13, 1986, pp.
4-6)
Josie Collado:
Q When you did not find Atty. Sarmiento in his house on June 15,
1983, what transpired?
A The wife of Atty. Sarmiento told us that we will be back on
August 9, 1983.
Q And on August 9, 1983 did you go back to the house of Atty.
Sarmiento?
A Yes, Sir.
Q For what purpose?
A Our purpose is just to sign the will.
Q Were you able to sign the will you mentioned?
A Yes sir. (tsn, October 21, 1987, pp. 4-5)"22
Notably, petitioner failed to substantiate her claim of a "grand
conspiracy" in the commission of a fraud. There was no showing
that the witnesses of the proponent stood to receive any benefit
from the allowance of the will. The testimonies of the three
subscribing witnesses and the notary are credible evidence of its
due execution.23Their testimony favoring it and the finding that it
was executed in accordance with the formalities required by law
should be affirmed, absent any showing of ill motives. 24
Capacity to Make a Will
In determining the capacity of the testator to make a will, the Civil
Code gives the following guidelines:
"Article 798. In order to make a will it is essential that the testator
be of sound mind at the time of its execution.
In the case before us, where ingenuity could not suggest any
possible prejudice to any person, as attendant upon the actual
deviation from the letter of the law, such deviation must be
considered too trivial to invalidate the instrument.
It results that the legal errors assigned are not sustainable, and
the judgment appealed from will be affirmed. It is so ordered, with
costs against the appellants.
Johnson, Araullo, Avancea and Villamor, JJ., concur.
Petitioner had to pay just the same, his belief that he would be
thus exempted having failed to command the assent of
respondent Judge, the Honorable Conrado M. Vasquez, who issued
the following order of November 6, 1965: "'Oppositor, Father Lucio
Garcia is hereby ordered to pay the corresponding fees of the
filing of his petition for allowance of will and issuance of letters of
administration with the will annexed, dated September 30, 1965
within fifteen (15) days from notice hereof, failure of which the
said petition will be considered dismissed.'" 2Payment was made
by him on December 2, 1965, coupled with a reservation that he
would seek a definite ruling from us.
Hence this petition for certiorari filed on November 9, 1966, the
sole question raised being the alleged error of the respondent
Judge in ordering the payment of the aforesaid docket fee
considering that previously, with reference to an alleged will of
the same estate of the decedent in connection with the petition
for probate filed, such a fee had been collected. It is petitioner's
contention that the challenged order of respondent Judge
amounted to a grave abuse of discretion correctible
by certiorari.lawphi1.et
Respondent Judge did not even bother to answer the petition. It
is understandable why. On its face, it is obviously without merit. A
petition for probate of a will having been filed by petitioner, he
could not escape the payment of the corresponding docket fee.
The argument based on the allegation that there was such a
previous payment in connection with another will of the same
decedent sought to be probated does not carry the day. It is bereft
of any persuasive force.
R E S O L U T I O N*
FERNANDO, J.:
This is a motion for the reconsideration of our decision of March
28, 1969, filed by petitioner. In the opinion rendered in that case,
we stated: "Petitioner should have been aware that there is no
escape from the payment of the corresponding docket fee,
otherwise, the Court is not called upon to act on a complaint or
petition. Nor does it suffice to vary the rule simply because there
is only one decedent whose estate is thus to be disposed of by
will that must first be probated. It is not farfetched or implausible
that a decedent could have left various wills. Under such
circumstances, there is nothing inherently objectionable in thus
exacting the payment of a docket fee, every time a will is sought
to be probated. Petitioner here could have sought the probate of
the will presented by him in the same proceeding. He did not; he
filed instead a separate action."
While not disputing the correctness of the above principle
announced, petitioner, in this motion for reconsideration, would
assert that he did not file a separate action "but instead elected
to file the probate of the decedent's 1956 Will in the same Sp.
Proc. 62618, then pending before the respondent Court."
Petitioner's statement of fact is correct. Under the circumstances
then, while the doctrine to the effect that a court of justice is not
called upon to act on a complaint will petition in the absence of a
payment of the corresponding docket fee every time a will is
sought to be probated must be considered as subsisting, it finds
no application to the present case, as petitioner did not file a
separate action but instead sought to have the other will probated
in the same special proceedings then pending before respondent
Court. He is therefore entitled to have our decision reconsidered.
WHEREFORE, the decision of March 28, 1969 is set aside and the
petition for certiorari granted, with petitioner being thus entitled
to the refund of the second docket fee of P940.00 paid under
Receipt No. J-1459986 issued on December 2, 1965, and the order
of respondent Court of November 6, 1965 ordering such payment
of the second docket fee annulled. Without pronouncement as to
costs.lawphi1.et
Reyes, J.B.L., Dizon, Makalintal, Zaldivar, Sanchez and Capistrano,
JJ., concur.
Teehankee and Barredo, JJ., took no part.
Concepcion, C.J., and Castro, J., are on leave.
Footnotes
*
Editor's Note: See main decision in 27 SCRA 505.
A petition for the probate of the notarial will and codicil was filed
upon the testator's death on 3 January 1979 by private
respondent as executor with the Court of First Instance, now
Regional Trial Court, of Siniloan, Laguna. 5Petitioner, in turn, filed
an Opposition on the following grounds: that the will sought to be
probated was not executed and attested as required by law; that
the testator was insane or otherwise mentally incapacitated to
make a will at the time of its execution due to senility and old
age; that the will was executed under duress, or influence of fear
and threats; that it was procured by undue and improper pressure
and influence on the part of the beneficiary who stands to get the
lion's share of the testator's estate; and lastly, that the signature
of the testator was procured by fraud or trick.
When the oppositor (petitioner) failed to substantiate the grounds
relied upon in the Opposition, a Probate Order was issued on 27
June 1983 from which an appeal was made to respondent court.
The main thrust of the appeal was that the deceased was blind
within the meaning of the law at the time his "Huling Habilin" and
the codicil attached thereto was executed; that since the reading
required by Art. 808 of the Civil Code was admittedly not
complied with, probate of the deceased's last will and codicil
should have been denied.
On 11 April 1986, the Court of Appeals rendered the decision
under review with the following findings: that Brigido Alvarado
was not blind at the time his last will and codicil were executed;
that assuming his blindness, the reading requirement of Art. 808
was substantially complied with when both documents were read
aloud to the testator with each of the three instrumental
witnesses and the notary public following the reading with their
respective copies of the instruments. The appellate court then
concluded that although Art. 808 was not followed to the letter,
there was substantial compliance since its purpose of making
known to the testator the contents of the drafted will was served.
That Art. 808 was not followed strictly is beyond cavil. Instead of
the notary public and an instrumental witness, it was the lawyer
(private respondent) who drafted the eight-paged will and the
five-paged codicil who read the same aloud to the testator, and
read them only once, not twice as Art. 808 requires.
Private respondent however insists that there was substantial
compliance and that the single reading suffices for purposes of
the law. On the other hand, petitioner maintains that the only
valid compliance or compliance to the letter and since it is
admitted that neither the notary public nor an instrumental
witness read the contents of the will and codicil to Brigido,
probate of the latter's will and codicil should have been
disallowed.
We sustain private respondent's stand and necessarily, the
petition must be denied.
This Court has held in a number of occasions that substantial
compliance is acceptable where the purpose of the law has been
satisfied, the reason being that the solemnities surrounding the
execution of wills are intended to protect the testator from all
kinds of fraud and trickery but are never intended to be so rigid
and inflexible as to destroy the testamentary privilege. 14
In the case at bar, private respondent read the testator's will and
codicil aloud in the presence of the testator, his three
instrumental witnesses, and the notary public. Prior and
subsequent thereto, the testator affirmed, upon being asked, that
the contents read corresponded with his instructions. Only then
did the signing and acknowledgement take place. There is no
evidence, and petitioner does not so allege, that the contents of
the will and codicil were not sufficiently made known and
communicated to the testator. On the contrary, with respect to
the "Huling Habilin," the day of the execution was not the first
time that Brigido had affirmed the truth and authenticity of the
contents of the draft. The uncontradicted testimony of Atty. Rino
is that Brigido Alvarado already acknowledged that the will was
drafted in accordance with his expressed wishes even prior to 5
November 1977 when Atty. Rino went to the testator's residence
precisely for the purpose of securing his conformity to the draft. 15
Moreover, it was not only Atty. Rino who read the documents on
5 November and 29 December 1977. The notary public and the
three instrumental witnesses likewise read the will and codicil,
albeit silently. Afterwards, Atty. Nonia de la Pena (the notary
public) and Dr. Crescente O. Evidente (one of the three
instrumental witnesses and the testator's physician) asked the
testator whether the contents of the document were of his own
free will. Brigido answered in the affirmative. 16 With four persons
following the reading word for word with their own copies, it can
be safely concluded that the testator was reasonably assured that
what was read to him (those which he affirmed were in
accordance with his instructions), were the terms actually
appearing on the typewritten documents. This is especially true
when we consider the fact that the three instrumental witnesses
were persons known to the testator, one being his physician (Dr.
Evidente) and another (Potenciano C. Ranieses) being known to
him since childhood.
The spirit behind the law was served though the letter was not.
Although there should be strict compliance with the substantial
requirements of the law in order to insure the authenticity of the
will, the formal imperfections should be brushed aside when they
do not affect its purpose and which, when taken into account,
may only defeat the testator's will. 17
As a final word to convince petitioner of the propriety of the trial
court's Probate Order and its affirmance by the Court of Appeals,
we quote the following pronouncement in Abangan
v. Abangan, 18 to wit:
The object of the solemnities surrounding the execution of wills is
to close the door against bad faith and fraud, to avoid the
substitution of wills and testaments and to guaranty their truth
and authenticity. Therefore the laws on the 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 will, must be
disregarded (emphasis supplied).
Brigido Alvarado had expressed his last wishes in clear and
unmistakable terms in his "Huling Habilin" and the codicil
attached thereto. We are unwilling to cast these aside fro the
mere reason that a legal requirement intended for his protection
was not followed strictly when such compliance had been
rendered unnecessary by the fact that the purpose of the law, i.e.,
to make known to the incapacitated testator the contents of the
draft of his will, had already been accomplished. To reiterate,
substantial compliance suffices where the purpose has been
served.
It will be noted that Article 805 requires that the witness should
both attest and subscribe to the will in the presence of the
testator and of one another. "Attestation" and "subscription" differ
in meaning. Attestation is the act of senses, while subscription is
the act of the hand. The former is mental, the latter mechanical,
and to attest a will is to know that it was published as such, and
to certify the facts required to constitute an actual and legal
publication; but to subscribe a paper published as a will is only to
write on the same paper the names of the witnesses, for the sole
purpose of identification. 31
In Taboada vs. Rizal, 32 we clarified that 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. As it involves a mental act, there would
be no means, therefore, of ascertaining by a physical examination
of the will whether the witnesses had indeed signed in the
presence of the testator and of each other unless this is
substantially expressed in the attestation.
It is contended by petitioners that the aforequoted attestation
clause, in contravention of the express requirements of the third
paragraph of Article 805 of the Civil Code for attestation clauses,
fails to specifically state the fact that the attesting witnesses the
testator sign the will and all its pages in their presence and that
they, the witnesses, likewise signed the will and every page
thereof in the presence of the testator and of each other. We
agree.
3. We stress once more that under Article 809, the defects and
imperfections must only be with respect to the form of the
attestation or the language employed therein. Such defects or
imperfections would not render a will invalid should it be proved
that the will was really executed and attested in compliance with
Article 805. In this regard, however, the manner of proving the
due execution and attestation has been held to be limited to
merely an examination of the will itself without resorting to
evidence aliunde, whether oral or written.
The foregoing considerations do not apply where the attestation
clause totally omits the fact that the attesting witnesses signed
each and every page of the will in the presence of the testator
and of each other. 35 In such a situation, the defect is not only in
the form or language of the attestation clause but the total
absence of a specific element required by Article 805 to be
specifically stated in the attestation clause of a will. That is
precisely the defect complained of in the present case since there
is no plausible way by which we can read into the questioned
attestation clause statement, or an implication thereof, that the
attesting witness did actually bear witness to the signing by the
testator of the will and all of its pages and that said instrumental
witnesses also signed the will and every page thereof in the
presence of the testator and of one another.
Furthermore, the rule on substantial compliance in Article 809
cannot be revoked or relied on by respondents since it
presupposes that the defects in the attestation clause can be
cured or supplied by the text of the will or a consideration of
matters apparent therefrom which would provide the data not
expressed in the attestation clause or from which it may
necessarily be gleaned or clearly inferred that the acts not stated
in the omitted textual requirements were actually complied within
the execution of the will. In other words, defects must be
remedied by intrinsic evidence supplied by the will itself.
The other view which advocated the rule that statutes which
prescribe the formalities that should be observed in the execution
of wills are mandatory in nature and are to be strictly construed
was followed in the subsequent cases of In the Matter of the
Estate of Saguinsin, 43 In re Will of Andrada, 44 Uy Coque vs.
Sioca, 45 In re Estate of Neumark, 46 and Sano vs. Quintana. 47
Gumban vs. Gorecho, et al., 48 provided the Court with the
occasion to clarify the seemingly conflicting decisions in the
aforementioned cases. In said case of Gumban, the attestation
clause had failed to state that the witnesses signed the will and
each and every page thereof on the left margin in the presence of
the testator. The will in question was disallowed, with these
reasons therefor:
In support of their argument on the assignment of error abovementioned, appellants rely on a series of cases of this court
beginning with (I)n the Matter of the (E)state of Saguinsin ([1920],
41 Phil., 875), continuing with In re Will of Andrada [1921], 42
Phil., 180), Uy Coque vs. Navas L. Sioca [1922], 43 Phil., 405),
and In re Estate of Neumark ([1923], 46 Phil., 841), and ending
with Sano vs. Quintana ([1925], 48 Phil., 506). Appellee counters
with the citation of a series of cases beginning with Abangan vs.
Abangan ([1919], 40 Phil., 476), continuing through Aldaba vs.
Roque ([1922], 43 Phil., 378), and Fernandez vs. Vergel de
Dios ([1924], 46 Phil., 922), and culminating in Nayve vs. Mojal
and Aguilar ([1924], 47 Phil., 152). In its last analysis, our task is
to contrast and, if possible, conciliate the last two decisions cited
by opposing counsel, namely, those of Sano vs. Quintana,supra,
and Nayve vs. Mojal and Aguilar, supra.
... The law has a tender regard for the will of the testator
expressed in his last will and testament on the ground that any
disposition made by the testator is better than that which the law
can make. For this reason, intestate succession is nothing more
than a disposition based upon the presumed will of the decedent.
Thus, the prevailing policy is to require satisfaction of the legal
requirements in order to guard against fraud and bad faith but
without undue or unnecessary curtailment of testamentary
privilege Icasiano v. Icasiano, 11 SCRA 422). If a Will has been
executed in substantial compliance with the formalities of the law,
and the possibility of bad faith and fraud in the exercise thereof is
obviated, said Win should be admitted to probate (Rey v.
Cartagena 56 Phil. 282). Thus,
xxx xxx xxx
... More than anything else, the facts and circumstances of record
are to be considered in the application of any given rule. If the
surrounding circumstances point to a regular execution of the wilt
and the instrument appears to have been executed substantially
in accordance with the requirements of the law, the inclination
should, in the absence of any suggestion of bad faith, forgery or
fraud, lean towards its admission to probate, although the
document may suffer from some imperfection of language, or
other non-essential defect. ... (Leynez v. Leynez 68 Phil. 745).
If the testator, in executing his Will, attempts to comply with all
the requisites, although compliance is not literal, it is sufficient if
the objective or purpose sought to be accomplished by such
requisite is actually attained by the form followed by the testator.
The purpose of the solemnities surrounding the execution of Wills
has been expounded by this Court in Abangan v. Abanga 40 Phil.
476, where we ruled that:
The object of the solemnities surrounding the execution of wills is
to close the door against bad faith and fraud, to avoid substitution
of wills and testaments and to guaranty their truth and
authenticity. ...
April 5, 1990
PARAS, J.:
The sole issue in this case is whether or not the alleged
holographic will of one Melecio Labrador is dated, as provided for
in Article 8102 of the New Civil Code.
The antecedent and relevant facts are as follows: On June 10,
1972, Melecio Labrador died in the Municipality of Iba, province of
Zambales, where he was residing, leaving behind a parcel of land
designated as Lot No. 1916 under Original Certificate of Title No.
P-1652, and the following heirs, namely: Sagrado, Enrica,
Cristobal, Jesus, Gaudencio, Josefina, Juliana, Hilaria and Jovita, all
surnamed Labrador, and a holographic will.
On July 28, 1975, Sagrado Labrador (now deceased but
substituted by his heirs), Enrica Labrador and Cristobal Labrador,
filed in the court a quo a petition for the probate docketed as
Special Proceeding No. 922-I of the alleged holographic will of the
late Melecio Labrador.
II Second Page
And this is the day in which we agreed that we are making the
partitioning and assigning the respective assignment of the said
fishpond, and this being in the month of March, 17th day, in the
year 1968, and this decision and or instruction of mine is the
matter to be followed. And the one who made this writing is no
other than MELECIO LABRADOR, their father.
Now, this is the final disposition that I am making in writing and it
is this that should be followed and complied with in order that any
differences or troubles may be forestalled and nothing will happen
along these troubles among my children, and that they will be in
good relations among themselves, brothers and sisters;
And those improvements and fruits of the land; mangoes,
bamboos and all coconut trees and all others like the other kind of
bamboo by name of Bayog, it is their right to get if they so need,
in order that there shall be nothing that anyone of them shall
complain against the other, and against anyone of the brothers
and sisters.
III THIRD PAGE
And that referring to the other places of property, where the said
property is located, the same being the fruits of our earnings of
the two mothers of my children, there shall be equal portion of
each share among themselves, and or to be benefitted with all
those property, which property we have been able to acquire.
That in order that there shall be basis of the truth of this writing
(WILL) which I am here hereof manifesting of the truth and of the
fruits of our labor which their two mothers, I am signing my
signature below hereof, and that this is what should be complied
with, by all the brothers and sisters, the children of their two
mothers JULIANA QUINTERO PILARISA and CASIANA AQUINO
VILLANUEVA Your father who made this writing (WILL), and he is,
MELECIO LABRADOR y RALUTIN (p. 46, Rollo)
The petition, which principally alleges that the holographic will is
really dated, although the date is not in its usual place, is
impressed with merit.
The will has been dated in the hand of the testator himself in
perfect compliance with Article 810.1wphi1 It is worthy of note
to quote the first paragraph of the second page of the holographic
will, viz:
And this is the day in which we agreed that we are making the
partitioning and assigning the respective assignment of the said
fishpond, and this being in the month of March, 17th day, in the
year 1968, and this decision and or instruction of mine is the
matter to be followed. And the one who made this writing is no
other than MELECIO LABRADOR, their father. (emphasis supplied)
(p. 46, Rollo)
The law does not specify a particular location where the date
should be placed in the will. The only requirements are that the
date be in the will itself and executed in the hand of the testator.
These requirements are present in the subject will.
Respondents claim that the date 17 March 1968 in the will was
when the testator and his beneficiaries entered into an agreement
among themselves about "the partitioning and assigning the
respective assignments of the said fishpond," and was not the
date of execution of the holographic will; hence, the will is more of
an "agreement" between the testator and the beneficiaries
thereof to the prejudice of other compulsory heirs like the
respondents. This was thus a failure to comply with Article 783
which defines a will as "an act whereby a person is permitted,
with the formalities prescribed by law, to control to a certain
degree the disposition of his estate, to take effect after his death."
The opposition to the probate was on the ground that (1) the
execution of the will was procured by undue and improper
pressure and influence on the part of the petitioner and his wife,
and (2) that the testatrix did not seriously intend the instrument
to be her last will, and that the same was actually written either
on the 5th or 6th day of August 1957 and not on November 20,
1956 as appears on the will.
The probate was denied on the ground that under Article 811 of
the Civil Code, the proponent must present three witnesses who
could declare that the will and the signature are in the writing of
the testatrix, the probate being contested; and because the lone
witness presented by the proponent "did not prove sufficiently
that the body of the will was written in the handwriting of the
testatrix."
The proponent appealed, urging: first, that he was not bound to
produce more than one witness because the will's authenticity
was not questioned; and second, that Article 811 does not
mandatorily require the production of three witnesses to identify
the handwriting and signature of a holographic will, even if its
authenticity should be denied by the adverse party.
Article 811 of the Civil Code of the Philippines is to the following
effect:
ART. 811. In the probate of a holographic will, it shall be necessary
that at least one witness who knows the handwriting and
signature of the testator explicitly declare that the will and the
signature are in the handwriting of the testator. If the will is
contested, at least three of such witnesses shall be required.
In the absence of any competent witnesses referred to in the
preceding paragraph, and if the court deems it necessary, expert
testimony may be resorted to. (691a).
We agree with the appellant that since the authenticity of the will
was not contested, he was not required to produce more than one
witness; but even if the genuineness of the holographic will were
contested, we are of the opinion that Article 811 of our present
Civil Code can not be interpreted as to require the compulsory
presentation of three witnesses to identify the handwriting of the
testator, under penalty of having the probate denied. Since no
witness may have been present at the execution of a holographic
will, none being required by law (Art. 810, new Civil Code), it
becomes obvious that the existence of witness possessing the
requisite qualifications is a matter beyond the control of the
proponent. For it is not merely a question of finding and producing
any three witnesses; they must be witnesses "who know the
handwriting and signature of the testator" and who can declare
(truthfully, of course, even if the law does not so express) "that
the will and the signature are in the handwriting of the testator".
There may be no available witness of the testator's hand; or even
if so familiarized, the witnesses may be unwilling to give a
positive opinion. Compliance with the rule of paragraph 1 of
Article 811 may thus become an impossibility. That is evidently
the reason why the second paragraph of Article 811 prescribes
that
in the absence of any competent witness referred to in the
preceding paragraph, and if the court deems it necessary, expert
testimony may be resorted to.
As can be seen, the law foresees the possibility that no qualified
witness may be found (or what amounts to the same thing, that
no competent witness may be willing to testify to the authenticity
of the will), and provides for resort to expert evidence to supply
the deficiency.
It may be true that the rule of this article (requiring that three
witnesses be presented if the will is contested and only one if no
contest is had) was derived from the rule established for ordinary
testaments (cf. Cabang vs. Delfinado, 45 Phil., 291; Tolentino vs.
Francisco, 57 Phil., 742). But it can not be ignored that the
requirement can be considered mandatory only in the case of
ordinary testaments, precisely because the presence of at least
three witnesses at the execution of ordinary wills is made by law
essential to their validity (Art. 805). Where the will is holographic,
no witness need be present (Art. 10), and the rule requiring
production of three witnesses must be deemed merely permissive
if absurd results are to be avoided.
Again, under Article 811, the resort to expert evidence is
conditioned by the words "if the Court deem it necessary", which
reveal that what the law deems essential is that the Court should
be convinced of the will's authenticity. Where the prescribed
number of witnesses is produced and the court is convinced by
their testimony that the ill is genuine, it may consider it
unnecessary to call for expert evidence. On the other hand, if no
competent witness is available, or none of those produced is
convincing, the Court may still, and in fact it should, resort to
handwriting experts. The duty of the Court, in fine, is to exhaust
all available lines of inquiry, for the state is as much interested as
the proponent that the true intention of the testator be carried
into effect.
Commenting on analogous provisions of Article 691 of the Spanish
Civil Code of 1889, the noted Commentator, Mucuis Scaevola (Vol.
12, 2nd Ed., p.421), sagely remarks:
(3) Whether or not the Court of Appeals erred in not analyzing the
signatures in the holographic will of Matilde Seo Vda. de
Ramonal.
In this petition, the petitioners ask whether the provisions of
Article 811 of the Civil Code are permissive or mandatory. The
article provides, as a requirement for the probate of a contested
holographic will, that at least three witnesses explicitly declare
that the signature in the will is the genuine signature of the
testator.1wphi1.nt
We are convinced, based on the language used, that Article 811
of the Civil Code is mandatory. The word "shall" connotes a
mandatory order. We have ruled that "shall" in a statute
commonly denotes an imperative obligation and is inconsistent
with the idea of discretion and that the presumption is that the
word "shall," when used in a statute is mandatory. 11
Laws are enacted to achieve a goal intended and to guide against
an evil or mischief that aims to prevent. In the case at bar, the
goal to achieve is to give effect to the wishes of the deceased and
the evil to be prevented is the possibility that unscrupulous
individuals who for their benefit will employ means to defeat the
wishes of the testator.
So, we believe that the paramount consideration in the present
petition is to determine the true intent of the deceased. An
exhaustive and objective consideration of the evidence is
imperative to establish the true intent of the testator.
It will be noted that not all the witnesses presented by the
respondents testified explicitly that they were familiar with the
handwriting of testator. In the case of Augusto Neri, clerk of court,
Court of First Instance, Misamis Oriental, he merely identified the
record of Special Proceedings No. 427 before said court. He was
not presented to declare explicitly that the signature appearing in
the holographic was that of the deceased.
Generosa E. Senon, the election registrar of Cagayan de Oro City,
was presented to identify the signature of the deceased in the
voter's affidavit, which was not even produced as it was no longer
available.
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Q. In addition to collection of rentals, posting records of accounts
of tenants and deed of sale which you said what else did you do
to acquire familiarity of the signature of Matilde Vda De Ramonal?
A. Posting records.
Q. Aside from that?
A. Carrying letters.
Q. Letters of whom?
A. Matilde.
Q. To whom?
A. To her creditors.15
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Q. You testified that at time of her death she left a will. I am
showing to you a document with its title "tugon" is this the
document you are referring to?
A. Yes, sir.
Q. Showing to you this exhibit "S", there is that handwritten
"tugon", whose handwriting is this?
A. My Aunt.
Q. Why do you say this is the handwriting of your aunt?
A. Because I am familiar with her signature. 16
What Ms. Binanay saw were pre-prepared receipts and letters of
the deceased, which she either mailed or gave to her tenants. She
did not declare that she saw the deceased sign a document or
write a note.
Further, during the cross-examination, the counsel for petitioners
elicited the fact that the will was not found in the personal
belongings of the deceased but was in the possession of Ms.
Binanay. She testified that:
Q. Mrs. Binanay, when you were asked by counsel for the
petitioners if the late Matilde Seno vda de Ramonal left a will you
said, yes?
A. Yes, sir.
Q. Who was in possession of that will?
A. I.
Q. Since when did you have the possession of the will?
A. It was in my mother's possession.
Q. So, it was not in your possession?
A. Sorry, yes.
Q. And when did you come into possession since as you said this
was originally in the possession of your mother?
A. 1985.17
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Q. Now, Mrs. Binanay was there any particular reason why your
mother left that will to you and therefore you have that in your
possession?
A. It was not given to me by my mother, I took that in the
aparador when she died.
Q. After taking that document you kept it with you?
A. I presented it to the fiscal.
Q. For what purpose?
A. Just to seek advice.
Q. Advice of what?
A. About the will.18
In her testimony it was also evident that Ms. Binanay kept the fact
about the will from petitioners, the legally adopted children of the
deceased. Such actions put in issue her motive of keeping the will
a secret to petitioners and revealing it only after the death of
Matilde Seo Vda. de Ramonal.
In the testimony of Ms. Binanay, the following were established:
Q. Now, in 1978 Matilde Seno Vda de Ramonal was not yet a
sickly person is that correct?
A. Yes, sir.
Q. She was up and about and was still uprightly and she could
walk agilely and she could go to her building to collect rentals, is
that correct?
A. Yes, sir.19
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A. Yes, sir.21
Evangeline Calugay declared that the holographic will was
written, dated and signed in the handwriting of the testator. She
testified that:
Q. You testified that you stayed with the house of the spouses
Matilde and Justo Ramonal for the period of 22 years. Could you
tell the court the services if any which you rendered to Matilde
Ramonal?
A. During my stay I used to go with her to the church, to market
and then to her transactions.
Q. What else? What services that you rendered?
A. After my college days I assisted her in going to the bank,
paying taxes and to her lawyer.
Q. What was your purpose of going to her lawyer?
A. I used to be her personal driver.
Q. In the course of your stay for 22 years did you acquire
familiarity of the handwriting of Matilde Vda de Ramonal?
A. Yes, sir.
Q. How come that you acquired familiarity?
A. Because I lived with her since birth. 22
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Q. Now, I am showing to you Exhibit S which is captioned
"tugon" dated Agosto 30, 1978 there is a signature here below
item No. 1, will you tell this court whose signature is this?
A. Yes, sir, that is her signature.
Q. Why do you say that is her signature?
A. I am familiar with her signature.23
So, the only reason that Evangeline can give as to why she was
familiar with the handwriting of the deceased was because she
lived with her since birth. She never declared that she saw the
deceased write a note or sign a document.
The former lawyer of the deceased, Fiscal Waga, testified that:
Q. Do you know Matilde Vda de Ramonal?
A. That is true.30
From the testimonies of these witnesses, the Court of Appeals
allowed the will to probate and disregard the requirement of three
witnesses in case of contested holographic will, citing the decision
in Azaola vs. Singson,31ruling that the requirement is merely
directory and not mandatory.
In the case of Ajero vs. Court of Appeals,32 we said that "the
object of the solemnities surrounding the execution of wills is to
close the door against bad faith and fraud, to avoid substitution of
wills and testaments and to guaranty their truth and authenticity.
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.
However, we cannot eliminate the possibility of a false document
being adjudged as the will of the testator, which is why if the
holographic will is contested, that law requires three witnesses to
declare that the will was in the handwriting of the deceased.
The will was found not in the personal belongings of the deceased
but with one of the respondents, who kept it even before the
death of the deceased. In the testimony of Ms. Binanay, she
revealed that the will was in her possession as early as 1985, or
five years before the death of the deceased.
There was no opportunity for an expert to compare the signature
and the handwriting of the deceased with other documents signed
and executed by her during her lifetime. The only chance at
comparison was during the cross-examination of Ms. Binanay
when the lawyer of petitioners asked Ms. Binanay to compare the
documents which contained the signature of the deceased with
that of the holographic will and she is not a handwriting expert.
Even the former lawyer of the deceased expressed doubts as to
the authenticity of the signature in the holographic will.
It follows that the validity of the joint will, in so far as the estate of
the wife was concerned, must be, on her death, reexamined and
adjudicated de novo, since a joint will is considered a separate will
of each testator. Thus regarded, the holding of the court of First
Instance of Cebu that the joint will is one prohibited by law was
correct as to the participation of the deceased Gervasia Rebaca in
the properties in question, for the reasons extensively discussed
in our decision in Bilbao vs. Bilbao, 87 Phil. 144, that explained
the previous holding in Macrohon vs. Saavedra, 51 Phil. 267.
Therefore, the undivided interest of Gervasia Rebaca should pass
upon her death to her heirs intestate, and not exclusively to the
testamentary heir, unless some other valid will in her favor is
shown to exist, or unless she be the only heir intestate of said
Gervasia.
It is unnecessary to emphasize that the fact that joint wills should
be in common usage could not make them valid when our Civil
Codes consistently invalidated them, because laws are only
repealed by other subsequent laws, and no usage to the contrary
may prevail against their observance (Art. 5, Civ. Code of 1889;
Art. 7, Civil Code of the Philippines of 1950).
WITH THE FOREGOING MODIFICATION, the judgment of the Court
of Appeals in CA-G.R. No. 23763-R is affirmed. No Costs.