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SUCCESSION ATTY.

FRETTI
GANCHOON
I.

Definition of Succession, Kinds and Basic Concepts Arts. 774782)


G.R. No. L-68053 May 7, 1990 LAURA ALVAREZ, FLORA ALVAREZ
and RAYMUNDO ALVAREZ, petitioners,
vs. THE HONORABLE INTERMEDIATE APELLATE COURT and JESUS
YANES, ESTELITA YANES, ANTONIO YANES, ROSARIO YANES, and
ILUMINADO YANES, respondents.Francisco G. Banzon for
petitioner.Renecio R. Espiritu for private respondents.

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

After Fuentebella's death and during the settlement of his estate,


the administratrix thereof (Arsenia R. Vda. de Fuentebella, his
wife) filed in Special Proceedings No. 4373 in the Court of First
Instance of Negros Occidental, a motion requesting authority to
sell Lots 773-A and 773-B. 7 By virtue of a court order granting
said motion, 8 on March 24, 1958, Arsenia Vda. de Fuentebella
sold said lots for P6,000.00 to Rosendo Alvarez. 9 Hence, on April
1, 1958 TCT Nos. T-23165 and T-23166 covering Lots 773-A and
773-B were respectively issued to Rosendo Alvarez. 10
Two years later or on May 26, 1960, Teodora Yanes and the
children of her brother Rufino, namely, Estelita, Iluminado and
Jesus, filed in the Court of First Instance of Negros Occidental a
complaint against Fortunato Santiago, Arsenia Vda. de
Fuentebella, Alvarez and the Register of Deeds of Negros
Occidental for the "return" of the ownership and possession of
Lots 773 and 823. They also prayed that an accounting of the
produce of the land from 1944 up to the filing of the complaint be
made by the defendants, that after court approval of said
accounting, the share or money equivalent due the plaintiffs be
delivered to them, and that defendants be ordered to pay
plaintiffs P500.00 as damages in the form of attorney's fees. 11
During the pendency in court of said case or on November 13,
1961, Alvarez sold Lots 773-A, 773-B and another lot for
P25,000.00 to Dr. Rodolfo Siason. 12 Accordingly, TCT Nos. 30919
and 30920 were issued to Siason, 13 who thereafter, declared the
two lots in his name for assessment purposes. 14
Meanwhile, on November 6, 1962, Jesus Yanes, in his own behalf
and in behalf of the other plaintiffs, and assisted by their counsel,
filed a manifestation in Civil Case No. 5022 stating that the
therein plaintiffs "renounce, forfeit and quitclaims (sic) any claim,
monetary or otherwise, against the defendant Arsenia Vda. de
Fuentebella in connection with the above-entitled case." 15
On October 11, 1963, a decision was rendered by the Court of
First Instance of Negros Occidental in Civil Case No. 5022, the
dispositive portion of which reads:

WHEREFORE, judgment is rendered, ordering the defendant


Rosendo Alvarez to reconvey to the plaintiffs lots Nos. 773 and
823 of the Cadastral Survey of Murcia, Negros Occidental, now
covered by Transfer Certificates of Title Nos. T-23165 and T-23166
in the name of said defendant, and thereafter to deliver the
possession of said lots to the plaintiffs. No special pronouncement
as to costs.
SO ORDERED. 16
It will be noted that the above-mentioned manifestation of Jesus
Yanes was not mentioned in the aforesaid decision.
However, execution of said decision proved unsuccessful with
respect to Lot 773. In his return of service dated October 20,
1965, the sheriff stated that he discovered that Lot 773 had been
subdivided into Lots 773-A and 773-B; that they were "in the
name" of Rodolfo Siason who had purchased them from Alvarez,
and that Lot 773 could not be delivered to the plaintiffs as Siason
was "not a party per writ of execution." 17
The execution of the decision in Civil Case No. 5022 having met a
hindrance, herein private respondents (the Yaneses) filed on July
31, 1965, in the Court of First Instance of Negros Occidental a
petition for the issuance of a new certificate of title and for a
declaration of nullity of TCT Nos. T-23165 and T-23166 issued to
Rosendo Alvarez. 18 Thereafter, the court required Rodolfo Siason
to produce the certificates of title covering Lots 773 and 823.
Expectedly, Siason filed a manifestation stating that he purchased
Lots 773-A, 773-B and 658, not Lots 773 and 823, "in good faith
and for a valuable consideration without any knowledge of any
lien or encumbrances against said properties"; that the decision in
the cadastral proceeding 19 could not be enforced against him as
he was not a party thereto; and that the decision in Civil Case No.
5022 could neither be enforced against him not only because he
was not a party-litigant therein but also because it had long
become final and executory. 20 Finding said manifestation to be
well-founded, the cadastral court, in its order of September 4,
1965, nullified its previous order requiring Siason to surrender the
certificates of title mentioned therein. 21

In 1968, the Yaneses filed an ex-parte motion for the issuance of


an alias writ of execution in Civil Case No. 5022. Siason opposed
it. 22 In its order of September 28, 1968 in Civil Case No. 5022, the
lower court, noting that the Yaneses had instituted another action
for the recovery of the land in question, ruled that at the
judgment therein could not be enforced against Siason as he was
not a party in the case. 23
The action filed by the Yaneses on February 21, 1968 was for
recovery of real property with damages. 24 Named defendants
therein were Dr. Rodolfo Siason, Laura Alvarez, Flora Alvarez,
Raymundo Alvarez and the Register of Deeds of Negros
Occidental. The Yaneses prayed for the cancellation of TCT Nos. T19291 and 19292 issued to Siason (sic) for being null and void;
the issuance of a new certificate of title in the name of the
Yaneses "in accordance with the sheriffs return of service dated
October 20, 1965;" Siason's delivery of possession of Lot 773 to
the Yaneses; and if, delivery thereof could not be effected, or, if
the issuance of a new title could not be made, that the Alvarez
and Siason jointly and severally pay the Yaneses the sum of
P45,000.00. They also prayed that Siason render an accounting of
the fruits of Lot 773 from November 13, 1961 until the filing of the
complaint; and that the defendants jointly and severally pay the
Yaneses moral damages of P20,000.00 and exemplary damages of
P10,000.00 plus attorney's fees of P4, 000.00. 25
In his answer to the complaint, Siason alleged that the validity of
his titles to Lots 773-A and 773-B, having been passed upon by
the court in its order of September 4, 1965, had become res
judicata and the Yaneses were estopped from questioning said
order. 26 On their part, the Alvarez stated in their answer that the
Yaneses' cause of action had been "barred by res judicata, statute
of limitation and estoppel." 27

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

The Alvarez appealed to the then Intermediate Appellate Court


which in its decision of August 31, 1983 30 affirmed the lower
court's decision "insofar as it ordered defendants-appellants to
pay jointly and severally the plaintiffs-appellees 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 is
reversed 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." 31 The dispositive portion of said decision
reads:
WHEREFORE, the decision appealed from is affirmed insofar as it
ordered defendants-appellants to pay jointly and severally the
plaintiffs- appellees 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 is reversed 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.
No costs.
SO ORDERED. 32
Finding no cogent reason to grant appellants motion for
reconsideration, said appellate court denied the same.
Hence, the instant petition. ln their memorandum petitioners
raised the following issues:
1. Whethere or not the defense of prescription and estoppel had
been timely and properly invoked and raised by the petitioners in
the lower court.
2. Whether or not the cause and/or causes of action of the private
respondents, if ever there are any, as alleged in their complaint
dated February 21, 1968 which has been docketed in the trial
court as Civil Case No. 8474 supra, are forever barred by statute
of limitation and/or prescription of action and estoppel.

3. Whether or not the late Rosendo Alvarez, a defendant in Civil


Case No. 5022, supra and father of the petitioners become a privy
and/or party to the waiver (Exhibit 4-defendant Siason) in Civil
Case No. 8474, supra where the private respondents had
unqualifiedly and absolutely waived, renounced and quitclaimed
all their alleged rights and interests, if ever there is any, on Lots
Nos. 773-A and 773-B of Murcia Cadastre as appearing in their
written manifestation dated November 6, 1962 (Exhibits "4"
Siason) which had not been controverted or even impliedly or
indirectly denied by them.
4. Whether or not the liability or liabilities of Rosendo Alvarez
arising from the sale of Lots Nos. 773-A and 773-B of Murcia
Cadastre to Dr. Rodolfo Siason, if ever there is any, could be
legally passed or transmitted by operations (sic) of law to the
petitioners without violation of law and due process . 33
The petition is devoid of merit.
As correctly ruled by the Court of Appeals, it is powerless and for
that matter so is the Supreme Court, to review the decision in
Civil Case No. 5022 ordering Alvarez to reconvey the lots in
dispute to herein private respondents. Said decision had long
become final and executory and with the possible exception of Dr.
Siason, who was not a party to said case, the decision in Civil
Case No. 5022 is the law of the case between the parties thereto.
It ended when Alvarez or his heirs failed to appeal the decision
against them. 34

Thus, it is axiomatic that when a right or fact has been judicially


tried and determined by a court of competent jurisdiction, so long
as it remains unreversed, it should be conclusive upon the parties
and those in privity with them in law or estate. 35 As consistently
ruled by this Court, every litigation must come to an end. Access
to the court is guaranteed. But there must be a limit to it. Once a
litigant's right has been adjudicated in a valid final judgment of a
competent court, he should not be granted an unbridled license to
return for another try. The prevailing party should not be harassed
by subsequent suits. For, if endless litigation were to be allowed,
unscrupulous litigations will multiply in number to the detriment
of the administration of justice. 36
There is no dispute that the rights of the Yaneses to the properties
in question have been finally adjudicated in Civil Case No. 5022.
As found by the lower court, from the uncontroverted evidence
presented, the Yaneses have been illegally deprived of ownership
and possession of the lots in question. 37 In fact, Civil Case No.
8474 now under review, arose from the failure to execute Civil
Case No. 5022, as subject lots can no longer be reconveyed to
private respondents Yaneses, the same having been sold during
the pendency of the case by the petitioners' father to Dr. Siason
who did not know about the controversy, there being no lis
pendens annotated on the titles. Hence, it was also settled
beyond question that Dr. Siason is a purchaser in good faith.
Under the circumstances, the trial court did not annul the sale
executed by Alvarez in favor of Dr. Siason on November 11, 1961
but in fact sustained it. The trial court ordered the heirs of
Rosendo Alvarez who lost in Civil Case No. 5022 to pay the
plaintiffs (private respondents herein) the amount of P20,000.00
representing the actual value of the subdivided lots in dispute. It
did not order defendant Siason to pay said amount. 38

As to the propriety of the present case, it has long been


established that the sole remedy of the landowner whose
property has been wrongfully or erroneously registered in
another's name is to bring an ordinary action in the ordinary court
of justice for reconveyance or, if the property has passed into the
hands of an innocent purchaser for value, for damages. 39 "It is
one thing to protect an innocent third party; it is entirely a
different matter and one devoid of justification if deceit would be
rewarded by allowing the perpetrator to enjoy the fruits of his
nefarious decided As clearly revealed by the undeviating line of
decisions coming from this Court, such an undesirable eventuality
is precisely sought to be guarded against." 40
The issue on the right to the properties in litigation having been
finally adjudicated in Civil Case No. 5022 in favor of private
respondents, it cannot now be reopened in the instant case on the
pretext that the defenses of prescription and estoppel have not
been properly considered by the lower court. Petitioners could
have appealed in the former case but they did not. They have
therefore foreclosed their rights, if any, and they cannot now be
heard to complain in another case in order to defeat the
enforcement of a judgment which has longing become final and
executory.
Petitioners further contend that the liability arising from the sale
of Lots No. 773-A and 773-B made by Rosendo Alvarez to Dr.
Rodolfo Siason should be the sole liability of the late Rosendo
Alvarez or of his estate, after his death.
Such contention is untenable for it overlooks the doctrine
obtaining in this jurisdiction on the general transmissibility of the
rights and obligations of the deceased to his legitimate children
and heirs. Thus, the pertinent provisions of the Civil Code state:
Art. 774. Succession is a mode of acquisition by virtue of which
the property, rights and obligations to the extent of the value of
the inheritance, of a person are transmitted through his death to
another or others either by his will or by operation of law.
Art. 776. The inheritance includes all the property, rights and
obligations of a person which are not extinguished by his death.

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

It must, however, be made clear that petitioners are liable only to


the extent of the value of their inheritance. With this clarification
and considering petitioners' admission that there are other
properties left by the deceased which are sufficient to cover the
amount adjudged in favor of private respondents, we see no
cogent reason to disturb the findings and conclusions of the Court
of Appeals.
WHEREFORE, subject to the clarification herein above stated, the
assailed decision of the Court of Appeals is hereby AFFIRMED.
Costs against petitioners.
SO ORDERED.

[G.R. No. L-8437. November 28, 1956.] ESTATE OF K. H. HEMADY,


deceased, vs. LUZON SURETY CO., INC., claimant-Appellant.

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.

Indemnity. The undersigned, jointly and severally, agree at all


times to indemnify the COMPANY and keep it indemnified and
hold and save it harmless from and against any and all damages,
losses, costs, stamps, taxes, penalties, charges, and expenses of
whatsoever kind and nature which the COMPANY shall or may, at
any time sustain or incur in consequence of having become surety
upon this bond or any extension, renewal, substitution or
alteration thereof made at the instance of the undersigned or any
of them or any order executed on behalf of the undersigned or
any of them; and to pay, reimburse and make good to the
COMPANY, its successors and assigns, all sums and amount of
money which it or its representatives shall pay or cause to be
paid, or become liable to pay, on account of the undersigned or
any of them, of whatsoever kind and nature, including 15% of the
amount involved in the litigation or other matters growing out of
or connected therewith for counsel or attorneys fees, but in no
case less than P25. It is hereby further agreed that in case of
extension or renewal of this ________ we equally bind ourselves for
the payment thereof under the same terms and conditions as
above mentioned without the necessity of executing another
indemnity agreement for the purpose and that we hereby equally
waive our right to be notified of any renewal or extension of this
________ which may be granted under this indemnity agreement.
Interest on amount paid by the Company. Any and all sums of
money so paid by the company shall bear interest at the rate of
12% per annum which interest, if not paid, will be accummulated
and added to the capital quarterly order to earn the same
interests as the capital and the total sum thereof, the capital and
interest, shall be paid to the COMPANY as soon as the COMPANY
shall have become liable therefore, whether it shall have paid out
such sums of money or any part thereof or not.
xxx
xxx
xxx

Waiver. It is hereby agreed upon by and between the


undersigned that any question which may arise between them by
reason of this document and which has to be submitted for
decision to Courts of Justice shall be brought before the Court of
competent jurisdiction in the City of Manila, waiving for this
purpose any other venue. Our right to be notified of the
acceptance and approval of this indemnity agreement is hereby
likewise waived.
xxx
xxx
xxx
Our Liability Hereunder. It shall not be necessary for the
COMPANY to bring suit against the principal upon his default, or to
exhaust the property of the principal, but the liability hereunder of
the undersigned indemnitor shall be jointly and severally, a
primary one, the same as that of the principal, and shall be
exigible immediately upon the occurrence of such default. (Rec.
App. pp. 98- 102.)
The Luzon Surety Co., prayed for allowance, as a contingent
claim, of the value of the twenty bonds it had executed in
consideration of the counterbonds, and further asked for
judgment for the unpaid premiums and documentary stamps
affixed to the bonds, with 12 per cent interest thereon.
Before answer was filed, and upon motion of the administratrix of
Hemadys estate, the lower court, by order of September 23,
1953, dismissed the claims of Luzon Surety Co., on two
grounds: (1) that the premiums due and cost of documentary
stamps were not contemplated under the indemnity agreements
to be a part of the undertaking of the guarantor (Hemady), since
they were not liabilities incurred after the execution of the
counterbonds; and (2) that whatever losses may occur after
Hemadys death, are not chargeable to his estate, because upon
his death he ceased to be guarantor.
Taking up the latter point first, since it is the one more far
reaching in effects, the reasoning of the court below ran as
follows:

The administratrix further contends that upon the death of


Hemady, his liability as a guarantor terminated, and therefore, in
the absence of a showing that a loss or damage was suffered, the
claim cannot be considered contingent. This Court believes that
there is merit in this contention and finds support in Article 2046
of the new Civil Code. It should be noted that a new requirement
has been added for a person to qualify as a guarantor, that
is integrity. As correctly pointed out by the Administratrix,
integrity is something purely personal and is not transmissible.
Upon the death of Hemady, his integrity was not transmitted to
his estate or successors. Whatever loss therefore, may occur after
Hemadys death, are not chargeable to his estate because upon
his death he ceased to be a guarantor.
Another clear and strong indication that the surety company has
exclusively relied on the personality, character, honesty and
integrity of the now deceased K. H. Hemady, was the fact that in
the printed form of the indemnity agreement there is a paragraph
entitled Security by way of first mortgage, which was expressly
waived and renounced by the security company. The security
company has not demanded from K. H. Hemady to comply with
this requirement of giving security by way of first mortgage. In
the supporting papers of the claim presented by Luzon Surety
Company, no real property was mentioned in the list of properties
mortgaged which appears at the back of the indemnity
agreement. (Rec. App., pp. 407-408).
We find this reasoning untenable. Under the present Civil Code
(Article 1311), as well as under the Civil Code of 1889 (Article
1257), the rule is that
Contracts take effect only as between the parties, their assigns
and heirs, except in the case where the rights and obligations
arising from the contract are not transmissible by their nature, or
by stipulation or by provision of law.

While in our successional system the responsibility of the heirs for


the debts of their decedent cannot exceed the value of the
inheritance they receive from him, the principle remains intact
that these heirs succeed not only to the rights of the deceased
but also to his obligations. Articles 774 and 776 of the New Civil
Code (and Articles 659 and 661 of the preceding one) expressly
so provide, thereby confirming Article 1311 already quoted.
ART. 774. Succession is a mode of acquisition by virtue of
which the property, rights and obligations to the extent of the
value of the inheritance, of a person are transmitted through his
death to another or others either by his will or by operation of
law.
ART. 776. The inheritance includes all the property, rights and
obligations of a person which are not extinguished by his death.
In Mojica vs. Fernandez, 9 Phil. 403, this Supreme Court ruled:
Under the Civil Code the heirs, by virtue of the rights of
succession are subrogated to all the rights and obligations of the
deceased (Article 661) and cannot be regarded as third parties
with respect to a contract to which the deceased was a party,
touching the estate of the deceased (Barrios vs. Dolor, 2 Phil. 44).
xxx
xxx
xxx
The principle on which these decisions rest is not affected by the
provisions of the new Code of Civil Procedure, and, in accordance
with that principle, the heirs of a deceased person cannot be held
to be third persons in relation to any contracts touching the real
estate of their decedent which comes in to their hands by right of
inheritance; chan roblesvirtualawlibrarythey take such property
subject to all the obligations resting thereon in the hands of him
from whom they derive their rights.
(See also Galasinao vs. Austria, 51 Off. Gaz. (No. 6) p. 2874 and
de Guzman vs. Salak, 91 Phil., 265).

The binding effect of contracts upon the heirs of the deceased


party is not altered by the provision in 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
estate is ultimately a payment by the heirs and 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 partys
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. The transition is marked by the disappearance of the
imprisonment for debt.
Of the three exceptions fixed by Article 1311, the nature of the
obligation of the surety or guarantor does not warrant the
conclusion that his peculiar individual qualities are contemplated
as a principal inducement for the contract. What did the creditor
Luzon Surety Co. expect of K. H. Hemady when it accepted the
latter as surety in the counterbonds? Nothing but the
reimbursement of the moneys that the Luzon Surety Co. might
have to disburse on account of the obligations of the principal
debtors. This reimbursement is a payment of a sum of money,
resulting from an obligation to give; and to the Luzon Surety Co.,
it was indifferent that the reimbursement should be made by
Hemady himself or by some one else in his behalf, so long as the
money was paid to it.

The second exception of Article 1311, p. 1, is intransmissibility by


stipulation of the parties. Being exceptional and contrary to the
general rule, this intransmissibility should not be easily implied,
but must be expressly established, or at the very least, clearly
inferable from the provisions of the contract itself, and the text of
the agreements sued upon nowhere indicate that they are nontransferable.
(b) Intransmisibilidad por pacto. Lo general es la
transmisibilidad de darechos y obligaciones; chan
roblesvirtualawlibraryle excepcion, la intransmisibilidad. Mientras
nada se diga en contrario impera el principio de la transmision,
como elemento natural a toda relacion juridica, salvo las
personalisimas. Asi, para la no transmision, es menester el pacto
expreso, porque si no, lo convenido entre partes trasciende a sus
herederos.
Siendo estos los continuadores de la personalidad del causante,
sobre ellos recaen los efectos de los vinculos juridicos creados por
sus antecesores, y para evitarlo, si asi se quiere, es indespensable
convension terminante en tal sentido.
Por su esencia, el derecho y la obligacion tienden a ir ms all de
las personas que les dieron vida, y a ejercer presion sobre los
sucesores de esa persona; chan roblesvirtualawlibrarycuando no
se quiera esto, se impone una estipulacion limitativa
expresamente de la transmisibilidad o de cuyos tirminos
claramente se deduzca la concresion del concreto a las mismas
personas que lo otorgon. (Scaevola, Codigo Civil, Tomo XX, p.
541-542) (Emphasis supplied.)
Because under the law (Article 1311), a person who enters into a
contract is deemed to have contracted for himself and his heirs
and assigns, it is unnecessary for him to expressly stipulate to
that effect; hence, his failure to do so is no sign that he intended
his bargain to terminate upon his death. Similarly, that the Luzon
Surety Co., did not require bondsman Hemady to execute a
mortgage indicates nothing more than the companys faith and
confidence in the financial stability of the surety, but not that his
obligation was strictly personal.

The third exception to the transmissibility of obligations under


Article 1311 exists when they are not transmissible by operation
of law. The provision makes reference to those cases where the
law expresses that the rights or obligations are extinguished by
death, as is the case in legal support (Article 300), parental
authority (Article 327), usufruct (Article 603), contracts for a piece
of work (Article 1726), partnership (Article 1830 and agency
(Article 1919). By contract, the articles of the Civil Code that
regulate guaranty or suretyship (Articles 2047 to 2084) contain no
provision that the guaranty is extinguished upon the death of the
guarantor or the surety.
The lower court sought to infer such a limitation from Art. 2056, to
the effect that one who is obliged to furnish a guarantor must
present a person who possesses integrity, capacity to bind
himself, and sufficient property to answer for the obligation which
he guarantees. It will be noted, however, that the law requires
these qualities to be present only at the time of the perfection of
the contract of guaranty. It is self-evident that once the contract
has become perfected and binding, the supervening incapacity of
the guarantor would not operate to exonerate him of the eventual
liability he has contracted; chan roblesvirtualawlibraryand if that
be true of his capacity to bind himself, it should also be true of his
integrity, which is a quality mentioned in the article alongside the
capacity.
The foregoing concept is confirmed by the next Article 2057, that
runs as follows:
ART. 2057. If the guarantor should be convicted in first
instance of a crime involving dishonesty or should become
insolvent, the creditor may demand another who has all the
qualifications required in the preceding article. The case is
excepted where the creditor has required and stipulated that a
specified person should be guarantor.

From this article it should be immediately apparent that the


supervening dishonesty of the guarantor (that is to say, the
disappearance of his integrity after he has become bound) does
not terminate the contract but merely entitles the creditor to
demand a replacement of the guarantor. But the step remains
optional in the creditor:chanroblesvirtuallawlibrary it is his right,
not his duty; chan roblesvirtualawlibraryhe may waive it if he
chooses, and hold the guarantor to his bargain. Hence Article
2057 of the present Civil Code is incompatible with the trial
courts stand that the requirement of integrity in the guarantor or
surety makes the latters undertaking strictly personal, so linked
to his individuality that the guaranty automatically terminates
upon his death.
The contracts of suretyship entered into by K. H. Hemady in favor
of Luzon Surety Co. not being rendered intransmissible due to the
nature of the undertaking, nor by the stipulations of the contracts
themselves, nor by provision of law, his eventual liability
thereunder necessarily passed upon his death to his heirs. The
contracts, therefore, give rise to contingent claims provable
against his estate under section 5, Rule 87 (2 Moran, 1952 ed., p.
437; chan roblesvirtualawlibraryGaskell & Co. vs. Tan Sit, 43 Phil.
810, 814).
The most common example of the contigent claim is that which
arises when a person is bound as surety or guarantor for a
principal who is insolvent or dead. Under the ordinary contract of
suretyship the surety has no claim whatever against his principal
until he himself pays something by way of satisfaction upon the
obligation which is secured. When he does this, there instantly
arises in favor of the surety the right to compel the principal to
exonerate the surety. But until the surety has contributed
something to the payment of the debt, or has performed the
secured obligation in whole or in part, he has no right of action
against anybody no claim that could be reduced to judgment.
(May vs. Vann, 15 Pla., 553; chan roblesvirtualawlibraryGibson vs.
Mithell, 16 Pla., 519; chan roblesvirtualawlibraryMaxey vs. Carter,
10 Yarg. [Tenn.], 521 Reeves vs. Pulliam, 7 Baxt. [Tenn.],
119; chan roblesvirtualawlibraryErnst vs. Nou, 63 Wis., 134.)

For Defendant administratrix it is averred that the above doctrine


refers to a case where the surety files claims against the estate of
the principal debtor; and it is urged that the rule does not apply
to the case before us, where the late Hemady was a surety, not a
principal debtor. The argument evinces a superficial view of the
relations between parties. If under the Gaskell ruling, the Luzon
Surety Co., as guarantor, could file a contingent claim against the
estate of the principal debtors if the latter should die, there is
absolutely no reason why it could not file such a claim against the
estate of Hemady, since Hemady is a solidary co-debtor of his
principals. What the Luzon Surety Co. may claim from the estate
of a principal debtor it may equally claim from the estate of
Hemady, since, in view of the existing solidarity, the latter does
not even enjoy the benefit of exhaustion of the assets of the
principal debtor.
The foregoing ruling is of course without prejudice to the
remedies of the administratrix against the principal debtors under
Articles 2071 and 2067 of the New Civil Code.
Our conclusion is that the solidary guarantors liability is not
extinguished by his death, and that in such event, the Luzon
Surety Co., had the right to file against the estate a contingent
claim for reimbursement. It becomes unnecessary now to discuss
the estates liability for premiums and stamp taxes, because
irrespective of the solution to this question, the Luzon Suretys
claim did state a cause of action, and its dismissal was erroneous.
Wherefore, the order appealed from is reversed, and the records
are ordered remanded to the court of origin, with instructions to
proceed in accordance with law. Costs against the
Administratrix- Appellee. SO ORDERED.

G.R. No. 149926


February 23, 2005 UNION BANK OF THE
PHILIPPINES, petitioner,
vs.
EDMUND SANTIBAEZ and FLORENCE SANTIBAEZ
ARIOLA, respondents.

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.

Sometime in February 1981, Efraim died, leaving a holographic


will.6 Subsequently in March 1981, testate proceedings
commenced before the RTC of Iloilo City, Branch 7, docketed as
Special Proceedings No. 2706. On April 9, 1981, Edmund, as one
of the heirs, was appointed as the special administrator of the
estate of the decedent.7 During the pendency of the testate
proceedings, the surviving heirs, Edmund and his sister Florence
Santibaez Ariola, executed a Joint Agreement8 dated July 22,
1981, wherein they agreed to divide between themselves and
take possession of the three (3) tractors; that is, two (2) tractors
for Edmund and one (1) tractor for Florence. Each of them was to
assume the indebtedness of their late father to FCCC,
corresponding to the tractor respectively taken by them.
On August 20, 1981, a Deed of Assignment with Assumption of
Liabilities9 was executed by and between FCCC and Union Savings
and Mortgage Bank, wherein the FCCC as the assignor, among
others, assigned all its assets and liabilities to Union Savings and
Mortgage Bank.
Demand letters10 for the settlement of his account were sent by
petitioner Union Bank of the Philippines (UBP) to Edmund, but the
latter failed to heed the same and refused to pay. Thus, on
February 5, 1988, the petitioner filed a Complaint 11 for sum of
money against the heirs of Efraim Santibaez, Edmund and
Florence, before the RTC of Makati City, Branch 150, docketed as
Civil Case No. 18909. Summonses were issued against both, but
the one intended for Edmund was not served since he was in the
United States and there was no information on his address or the
date of his return to the Philippines.12 Accordingly, the complaint
was narrowed down to respondent Florence S. Ariola.
On December 7, 1988, respondent Florence S. Ariola filed her
Answer13 and alleged that the loan documents did not bind her
since she was not a party thereto. Considering that the joint
agreement signed by her and her brother Edmund was not
approved by the probate court, it was null and void; hence, she
was not liable to the petitioner under the joint agreement.

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.

3. THE COURT A QUO ERRED IN NOT FINDING THAT THE


DEFENDANT HAD WAIVED HER RIGHT TO HAVE THE CLAIM RELITIGATED IN THE ESTATE PROCEEDING.16
The petitioner asserted before the CA that the obligation of the
deceased had passed to his legitimate children and heirs, in this
case, Edmund and Florence; the unconditional signing of the joint
agreement marked as Exhibit "A" estopped respondent Florence
S. Ariola, and that she cannot deny her liability under the said
document; as the agreement had been signed by both heirs in
their personal capacity, it was no longer necessary to present the
same before the probate court for approval; the property
partitioned in the agreement was not one of those enumerated in
the holographic will made by the deceased; and the active
participation of the heirs, particularly respondent Florence S.
Ariola, in the present ordinary civil action was tantamount to a
waiver to re-litigate the claim in the estate proceedings.
On the other hand, respondent Florence S. Ariola maintained that
the money claim of the petitioner should have been presented
before the probate court.17
The appellate court found that the appeal was not meritorious
and held that the petitioner should have filed its claim with the
probate court as provided under Sections 1 and 5, Rule 86 of the
Rules of Court. It further held that the partition made in the
agreement was null and void, since no valid partition may be had
until after the will has been probated. According to the CA, page
2, paragraph (e) of the holographic will covered the subject
properties (tractors) in generic terms when the deceased referred
to them as "all other properties." Moreover, the active
participation of respondent Florence S. Ariola in the case did not
amount to a waiver. Thus, the CA affirmed the RTC decision, viz.:
WHEREFORE, premises considered, the appealed Decision of the
Regional Trial Court of Makati City, Branch 63, is hereby
AFFIRMED in toto.
SO ORDERED.18
In the present recourse, the petitioner ascribes the following
errors to the CA:

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

The petitioner claims that the obligations of the deceased were


transmitted to the heirs as provided in Article 774 of the Civil
Code; there was thus no need for the probate court to approve
the joint agreement where the heirs partitioned the tractors
owned by the deceased and assumed the obligations related
thereto. Since respondent Florence S. Ariola signed the joint
agreement without any condition, she is now estopped from
asserting any position contrary thereto. The petitioner also points
out that the holographic will of the deceased did not include nor
mention any of the tractors subject of the complaint, and, as such
was beyond the ambit of the said will. The active participation and
resistance of respondent Florence S. Ariola in the ordinary civil
action against the petitioners claim amounts to a waiver of the
right to have the claim presented in the probate proceedings, and
to allow any one of the heirs who executed the joint agreement to
escape liability to pay the value of the tractors under
consideration would be equivalent to allowing the said heirs to
enrich themselves to the damage and prejudice of the petitioner.
The petitioner, likewise, avers that the decisions of both the trial
and appellate courts failed to consider the fact that respondent
Florence S. Ariola and her brother Edmund executed loan
documents, all establishing thevinculum juris or the legal bond
between the late Efraim Santibaez and his heirs to be in the
nature of a solidary obligation. Furthermore, the Promissory Notes
dated May 31, 1980 and December 13, 1980 executed by the late
Efraim Santibaez, together with his heirs, Edmund and
respondent Florence, made the obligation solidary as far as the
said heirs are concerned. The petitioner also proffers that,
considering the express provisions of the continuing guaranty
agreement and the promissory notes executed by the named
respondents, the latter must be held liable jointly and severally
liable thereon. Thus, there was no need for the petitioner to file its
money claim before the probate court. Finally, the petitioner
stresses that both surviving heirs are being sued in their
respective personal capacities, not as heirs of the deceased.

In her comment to the petition, respondent Florence S. Ariola


maintains that the petitioner is trying to recover a sum of money
from the deceased Efraim Santibaez; thus the claim should have
been filed with the probate court. She points out that at the time
of the execution of the joint agreement there was already an
existing probate proceedings of which the petitioner knew about.
However, to avoid a claim in the probate court which might delay
payment of the obligation, the petitioner opted to require them to
execute the said agreement.
According to the respondent, the trial court and the CA did not err
in declaring that the agreement was null and void. She asserts
that even if the agreement was voluntarily executed by her and
her brother Edmund, it should still have been subjected to the
approval of the court as it may prejudice the estate, the heirs or
third parties. Furthermore, she had not waived any rights, as she
even stated in her answer in the court a quo that the claim should
be filed with the probate court. Thus, the petitioner could not
invoke or claim that she is in estoppel.
Respondent Florence S. Ariola further asserts that she had not
signed any continuing guaranty agreement, nor was there any
document presented as evidence to show that she had caused
herself to be bound by the obligation of her late father.
The petition is bereft of merit.
The Court is posed to resolve the following issues: a) whether or
not the partition in the Agreement executed by the heirs is valid;
b) whether or not the heirs assumption of the indebtedness of
the deceased is valid; and c) whether the petitioner can hold the
heirs liable on the obligation of the deceased.
At the outset, well-settled is the rule that a probate court has the
jurisdiction to determine all the properties of the deceased, to
determine whether they should or should not be included in the
inventory or list of properties to be administered. 20 The said court
is primarily concerned with the administration, liquidation and
distribution of the estate.21
In our jurisdiction, the rule is that there can be no valid partition
among the heirs until after the will has been probated:

In testate succession, there can be no valid partition among the


heirs until after the will has been probated. The law enjoins the
probate of a will and the public requires it, because unless a will is
probated and notice thereof given to the whole world, the right of
a person to dispose of his property by will may be rendered
nugatory. The authentication of a will decides no other question
than such as touch upon the capacity of the testator and the
compliance with those requirements or solemnities which the law
prescribes for the validity of a will. 22
This, of course, presupposes that the properties to be partitioned
are the same properties embraced in the will. 23In the present
case, the deceased, Efraim Santibaez, left a holographic
will24 which contained, inter alia, the provision which reads as
follows:
(e) All other properties, real or personal, which I own and may be
discovered later after my demise, shall be distributed in the
proportion indicated in the immediately preceding paragraph in
favor of Edmund and Florence, my children.
We agree with the appellate court that the above-quoted is an allencompassing provision embracing all the properties left by the
decedent which might have escaped his mind at that time he was
making his will, and other properties he may acquire thereafter.
Included therein are the three (3) subject tractors. This being so,
any partition involving the said tractors among the heirs is not
valid. The joint agreement25 executed by Edmund and Florence,
partitioning the tractors among themselves, is invalid, specially so
since at the time of its execution, there was already a pending
proceeding for the probate of their late fathers holographic will
covering the said tractors.

It must be stressed that the probate proceeding had already


acquired jurisdiction over all the properties of the deceased,
including the three (3) tractors. To dispose of them in any way
without the probate courts approval is tantamount to divesting it
with jurisdiction which the Court cannot allow. 26 Every act
intended to put an end to indivision among co-heirs and legatees
or devisees is deemed to be a partition, although it should purport
to be a sale, an exchange, a compromise, or any other
transaction.27 Thus, in executing any joint agreement which
appears to be in the nature of an extra-judicial partition, as in the
case at bar, court approval is imperative, and the heirs cannot
just divest the court of its jurisdiction over that part of the estate.
Moreover, it is within the jurisdiction of the probate court to
determine the identity of the heirs of the decedent. 28 In the
instant case, there is no showing that the signatories in the joint
agreement were the only heirs of the decedent. When it was
executed, the probate of the will was still pending before the court
and the latter had yet to determine who the heirs of the decedent
were. Thus, for Edmund and respondent Florence S. Ariola to
adjudicate unto themselves the three (3) tractors was a
premature act, and prejudicial to the other possible heirs and
creditors who may have a valid claim against the estate of the
deceased.

The question that now comes to fore is whether the heirs


assumption of the indebtedness of the decedent is binding. We
rule in the negative. Perusing the joint agreement, it provides that
the heirs as parties thereto "have agreed to divide between
themselves and take possession and use the above-described
chattel and each of them to assume the indebtedness
corresponding to the chattel taken as herein after stated which is
in favor of First Countryside Credit Corp."29 The assumption of
liability was conditioned upon the happening of an event, that is,
that each heir shall take possession and use of their respective
share under the agreement. It was made dependent on the
validity of the partition, and that they were to assume the
indebtedness corresponding to the chattel that they were each to
receive. The partition being invalid as earlier discussed, the heirs
in effect did not receive any such tractor. It follows then that the
assumption of liability cannot be given any force and effect.
The Court notes that the loan was contracted by the decedent.
The petitioner, purportedly a creditor of the late Efraim
Santibaez, should have thus filed its money claim with the
probate court in accordance with Section 5, Rule 86 of the Revised
Rules of Court, which provides:

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

Perusing the records of the case, nothing therein could hold


private respondent Florence S. Ariola accountable for any liability
incurred by her late father. The documentary evidence presented,
particularly the promissory notes and the continuing guaranty
agreement, were executed and signed only by the late Efraim
Santibaez and his son Edmund. As the petitioner failed to file its
money claim with the probate court, at most, it may only go after
Edmund as co-maker of the decedent under the said promissory
notes and continuing guaranty, of course, subject to any defenses
Edmund may have as against the petitioner. As the court had not
acquired jurisdiction over the person of Edmund, we find it
unnecessary to delve into the matter further.
We agree with the finding of the trial court that the petitioner had
not sufficiently shown that it is the successor-in-interest of the
Union Savings and Mortgage Bank to which the FCCC assigned its
assets and liabilities.33 The petitioner in its complaint alleged that
"by virtue of the Deed of Assignment dated August 20, 1981
executed by and between First Countryside Credit Corporation
and Union Bank of the Philippines"34 However, the documentary
evidence35 clearly reflects that the parties in the deed of
assignment with assumption of liabilities were the FCCC, and the
Union Savings and Mortgage Bank, with the conformity of Bancom
Philippine Holdings, Inc. Nowhere can the petitioners
participation therein as a party be found. Furthermore, no
documentary or testimonial evidence was presented during trial
to show that Union Savings and Mortgage Bank is now, in fact,
petitioner Union Bank of the Philippines. As the trial court
declared in its decision:
[T]he court also finds merit to the contention of defendant that
plaintiff failed to prove or did not present evidence to prove that
Union Savings and Mortgage Bank is now the Union Bank of the
Philippines. Judicial notice does not apply here. "The power to
take judicial notice is to [be] exercised by the courts with caution;
care must be taken that the requisite notoriety exists; and every
reasonable doubt upon the subject should be promptly resolved in
the negative." (Republic vs. Court of Appeals, 107 SCRA 504). 36

This being the case, the petitioners personality to file the


complaint is wanting. Consequently, it failed to establish its cause
of action. Thus, the trial court did not err in dismissing the
complaint, and the CA in affirming the same.
IN LIGHT OF ALL THE FOREGOING, the petition is hereby DENIED.
The assailed Court of Appeals Decision is AFFIRMED. No costs.
SO ORDERED.

G.R. No. L-4963


January 29, 1953 MARIA USON, plaintiffappellee,
vs. MARIA DEL ROSARIO, CONCEPCION NEBREDA, CONRADO
NEBREDA, DOMINADOR NEBREDA, AND FAUSTINO NEBREDA,
Jr., defendants-appellants.

Priscilo Evangelista for appellee.


Brigido G. Estrada for appellant.
BAUTISTA ANGELO, J.:
This is an action for recovery of the ownership and possession of
five (5) parcels of land situated in the Municipality of Labrador,
Province of Pangasinan, filed by Maria Uson against Maria del
Rosario and her four children named Concepcion, Conrado,
Dominador, and Faustino, surnamed Nebreda, who are all of minor
age, before the Court of First Instance of Pangasinan.
Maria Uson was the lawful wife of Faustino Nebreda who upon his
death in 1945 left the lands involved in this litigation. Faustino
Nebreda left no other heir except his widow Maria Uson. However,
plaintiff claims that when Faustino Nebreda died in 1945, his
common-law wife Maria del Rosario took possession illegally of
said lands thus depriving her of their possession and enjoyment.
Defendants in their answer set up as special defense that on
February 21, 1931, Maria Uson and her husband, the late Faustino
Nebreda, executed a public document whereby they agreed to
separate as husband and wife and, in consideration of their
separation, Maria Uson was given a parcel of land by way of
alimony and in return she renounced her right to inherit any other
property that may be left by her husband upon his death (Exhibit
1).
After trial, at which both parties presented their respective
evidence, the court rendered decision ordering the defendants to
restore to the plaintiff the ownership and possession of the lands
in dispute without special pronouncement as to costs. Defendants
interposed the present appeal.

There is no dispute that Maria Uson, plaintiff-appellee, is the


lawful wife of Faustino Nebreda, former owner of the five parcels
of lands litigated in the present case. There is likewise no dispute
that Maria del Rosario, one of the defendants-appellants, was
merely a common-law wife of the late Faustino Nebreda with
whom she had four illegitimate children, her now co-defendants.
It likewise appears that Faustino Nebreda died in 1945 much prior
to the effectivity of the new Civil Code. With this background, it is
evident that when Faustino Nebreda died in 1945 the five parcels
of land he was seized of at the time passed from the moment of
his death to his only heir, his widow Maria Uson (Article 657, old
Civil Code).As this Court aptly said, "The property belongs to the
heirs at the moment of the death of the ancestor as completely as
if the ancestor had executed and delivered to them a deed for the
same before his death" (Ilustre vs. Alaras Frondosa, 17 Phil., 321).
From that moment, therefore, the rights of inheritance of Maria
Uson over the lands in question became vested.
The claim of the defendants that Maria Uson had relinquished her
right over the lands in question because she expressly renounced
to inherit any future property that her husband may acquire and
leave upon his death in the deed of separation they had entered
into on February 21, 1931, cannot be entertained for the simple
reason that future inheritance cannot be the subject of a contract
nor can it be renounced (1 Manresa, 123, sixth edition; Tolentino
on Civil Code, p. 12; Osorio vs. Osorio and Ynchausti Steamship
Co., 41 Phil., 531).
But defendants contend that, while it is true that the four minor
defendants are illegitimate children of the late Faustino Nebreda
and under the old Civil Code are not entitled to any successional
rights, however, under the new Civil Code which became in force
in June, 1950, they are given the status and rights of natural
children and are entitled to the successional rights which the law
accords to the latter (article 2264 and article 287, new Civil
Code), and because these successional rights were declared for
the first time in the new code, they shall be given retroactive
effect even though the event which gave rise to them may have
occurred under the prior legislation (Article 2253, new Civil Code).

There is no merit in this claim. Article 2253 above referred to


provides indeed that rights which are declared for the first time
shall have retroactive effect even though the event which gave
rise to them may have occurred under the former legislation, but
this is so only when the new rights do not prejudice any vested or
acquired right of the same origin. Thus, said article provides that
"if a right should be declared for the first time in this Code, it shall
be effective at once, even though the act or event which gives
rise thereto may have been done or may have occurred under the
prior legislation, provided said new right does not prejudice or
impair any vested or acquired right, of the same origin." As
already stated in the early part of this decision, the right of
ownership of Maria Uson over the lands in question became
vested in 1945 upon the death of her late husband and this is so
because of the imperative provision of the law which commands
that the rights to succession are transmitted from the moment of
death (Article 657, old Civil Code). The new right recognized by
the new Civil Code in favor of the illegitimate children of the
deceased cannot, therefore, be asserted to the impairment of the
vested right of Maria Uson over the lands in dispute.
As regards the claim that Maria Uson, while her deceased
husband was lying in state, in a gesture of pity or compassion,
agreed to assign the lands in question to the minor children for
the reason that they were acquired while the deceased was living
with their mother and Maria Uson wanted to assuage somewhat
the wrong she has done to them, this much can be said; apart
from the fact that this claim is disputed, we are of the opinion that
said assignment, if any, partakes of the nature of a donation of
real property, inasmuch as it involves no material consideration,
and in order that it may be valid it shall be made in a public
document and must be accepted either in the same document or
in a separate one (Article 633, old Civil Code). Inasmuch as this
essential formality has not been followed, it results that the
alleged assignment or donation has no valid effect.
WHEREFORE, the decision appealed from is affirmed, without
costs.

Paras, C.J., Pablo, Bengzon, Padilla, Tuason, Montemayor, Reyes,


Jugo and Labrador, JJ., concur.

G.R. No. L-28040 August 18, 1972 TESTATE ESTATE OF JOSEFA


TANGCO, JOSE DE BORJA, administrator-appellee; JOSE DE BORJA,
as administrator, CAYETANO DE BORJA, MATILDE DE BORJA and
CRISANTO DE BORJA (deceased) as Children of Josefa
Tangco, appellees, vs. TASIANA VDA. DE DE BORJA, Special
Administratrix of the Testate Estate of Francisco de
Borja,appellant. G.R. No L-28568 August 18, 1972 TESTATE
ESTATE OF THE LATE FRANCISCO DE BORJA, TASIANA O. VDA. DE
DE BORJA, special Administratrix appellee, vs. JOSE DE
BORJA, oppositor-appellant. G.R. No. L-28611 August 18, 1972
TASIANA 0. VDA. DE BORJA, as Administratrix of the Testate Estate
of the late Francisco de Borja,plaintiff-appellee,
vs. JOSE DE BORJA, as Administrator of the Testate Estate of the
late Josefa Tangco, defendant-appellant.L-28040Pelaez, Jalandoni
& Jamir for administrator-appellee.Quiogue & Quiogue for
appellee Matilde de Borja.Andres Matias for appellee Cayetano de
Borja.Sevilla & Aquino for appellant.L-28568Sevilla & Aquino for
special administratrix-appellee.Pelaez, Jalandoni & Jamir for
oppositor-appellant.L-28611Sevilla & Aquino for plaintiffappellee.Pelaez, Jalandoni & Jamir and David Gueverra for
defendant-appellant.

REYES, J.B.L., J.:p


Of these cases, the first, numbered L-28040 is an appeal by
Tasiana Ongsingco Vda. de de Borja, special administratrix of the
testate estate of Francisco de Borja, 1 from the approval of a
compromise agreement by the Court of First Instance of Rizal,
Branch I, in its Special Proceeding No. R-7866, entitled, "Testate
Estate of Josefa Tangco, Jose de Borja, Administrator".
Case No. L-28568 is an appeal by administrator Jose Borja from
the disapproval of the same compromise agreement by the Court
of First Instance of Nueva Ecija, Branch II, in its Special Proceeding
No. 832, entitled, "Testate Estate of Francisco de Borja, Tasiana O.
Vda. de de Borja, Special Administratrix".
And Case No. L-28611 is an appeal by administrator Jose de Borja
from the decision of the Court of First Instance of Rizal, Branch X,
in its Civil Case No. 7452, declaring the Hacienda Jalajala
Poblacion, which is the main object of the aforesaid compromise
agreement, as the separate and exclusive property of the late
Francisco de Borja and not a conjugal asset of the community with
his first wife, Josefa Tangco, and that said hacienda pertains
exclusively to his testate estate, which is under administrator in
Special Proceeding No. 832 of the Court of First Instance of Nueva
Ecija, Branch II.

It is uncontested that Francisco de Borja, upon the death of his


wife Josefa Tangco on 6 October 1940, filed a petition for the
probate of her will which was docketed as Special Proceeding No.
R-7866 of the Court of First Instance of Rizal, Branch I. The will
was probated on 2 April 1941. In 1946, Francisco de Borja was
appointed executor and administrator: in 1952, their son, Jose de
Borja, was appointed co-administrator. When Francisco died, on
14 April 1954, Jose became the sole administrator of the testate
estate of his mother, Josefa Tangco. While a widower Francisco de
Borja allegedly took unto himself a second wife, Tasiana
Ongsingco. Upon Francisco's death, Tasiana instituted testate
proceedings in the Court of First Instance of Nueva Ecija, where, in
1955, she was appointed special administratrix. The validity of
Tasiana's marriage to Francisco was questioned in said
proceeding.
The relationship between the children of the first marriage and
Tasiana Ongsingco has been plagued with several court suits and
counter-suits; including the three cases at bar, some eighteen
(18) cases remain pending determination in the courts. The
testate estate of Josefa Tangco alone has been unsettled for more
than a quarter of a century. In order to put an end to all these
litigations, a compromise agreement was entered into on 12
October 1963, 2 by and between "[T]he heir and son of Francisco
de Borja by his first marriage, namely, Jose de Borja personally
and as administrator of the Testate Estate of Josefa Tangco," and
"[T]he heir and surviving spouse of Francisco de Borja by his
second marriage, Tasiana Ongsingco Vda. de Borja, assisted by
her lawyer, Atty. Luis Panaguiton Jr." The terms and conditions of
the compromise agreement are as follows:
AGREEMENT
THIS AGREEMENT made and entered into by and between
The heir and son of Francisco de Borja by his first marriage,
namely, Jose de Borja personally and as administrator of the
Testate Estate of Josefa Tangco,
AND

The heir and surviving spouse of Francisco de Borja by his second


marriage, Tasiana Ongsingco Vda. de Borja, assisted by her
lawyer, Atty. Luis Panaguiton Jr.
WITNESSETH
THAT it is the mutual desire of all the parties herein terminate and
settle, with finality, the various court litigations, controversies,
claims, counterclaims, etc., between them in connection with the
administration, settlement, partition, adjudication and distribution
of the assets as well as liabilities of the estates of Francisco de
Borja and Josefa Tangco, first spouse of Francisco de Borja.
THAT with this end in view, the parties herein have agreed
voluntarily and without any reservations to enter into and execute
this agreement under the following terms and conditions:
1. That the parties agree to sell the Poblacion portion of the
Jalajala properties situated in Jalajala, Rizal, presently under
administration in the Testate Estate of Josefa Tangco (Sp. Proc. No.
7866, Rizal), more specifically described as follows:
Linda al Norte con el Rio Puwang que la separa de la jurisdiccion
del Municipio de Pililla de la Provincia de Rizal, y con el pico del
Monte Zambrano; al Oeste con Laguna de Bay; por el Sur con los
herederos de Marcelo de Borja; y por el Este con los terrenos de la
Familia Maronilla
with a segregated area of approximately 1,313 hectares at the
amount of P0.30 per square meter.

2. That Jose de Borja agrees and obligates himself to pay Tasiana


Ongsingco Vda. de de Borja the total amount of Eight Hundred
Thousand Pesos (P800,000) Philippine Currency, in cash, which
represent P200,000 as his share in the payment and P600,000 as
pro-rata shares of the heirs Crisanto, Cayetano and Matilde, all
surnamed de Borja and this shall be considered as full and
complete payment and settlement of her hereditary share in the
estate of the late Francisco de Borja as well as the estate of Josefa
Tangco, Sp. Proc. No. 832-Nueva Ecija and Sp. Proc. No. 7866Rizal, respectively, and to any properties bequeathed or devised
in her favor by the late Francisco de Borja by Last Will and
Testament or by Donation Inter Vivos or Mortis Causa or
purportedly conveyed to her for consideration or otherwise. The
funds for this payment shall be taken from and shall depend upon
the receipt of full payment of the proceeds of the sale of Jalajala,
"Poblacion."
3. That Tasiana Ongsingco Vda. de de Borja hereby assumes
payment of that particular obligation incurred by the late
Francisco de Borja in favor of the Rehabilitation Finance
Corporation, now Development Bank of the Philippines,
amounting to approximately P30,000.00 and also assumes
payment of her 1/5 share of the Estate and Inheritance taxes on
the Estate of the late Francisco de Borja or the sum of P3,500.00,
more or less, which shall be deducted by the buyer of Jalajala,
"Poblacion" from the payment to be made to Tasiana Ongsingco
Vda. de Borja under paragraph 2 of this Agreement and paid
directly to the Development Bank of the Philippines and the heirschildren of Francisco de Borja.
4. Thereafter, the buyer of Jalajala "Poblacion" is hereby
authorized to pay directly to Tasiana Ongsingco Vda. de de Borja
the balance of the payment due her under paragraph 2 of this
Agreement (approximately P766,500.00) and issue in the name of
Tasiana Ongsingco Vda. de de Borja, corresponding certified
checks/treasury warrants, who, in turn, will issue the
corresponding receipt to Jose de Borja.

5. In consideration of above payment to Tasiana Ongsingco Vda.


de de Borja, Jose de Borja personally and as administrator of the
Testate Estate of Josefa Tangco, and Tasiana Ongsingco Vda. de de
Borja, for themselves and for their heirs, successors, executors,
administrators, and assigns, hereby forever mutually renounce,
withdraw, waive, remise, release and discharge any and all
manner of action or actions, cause or causes of action, suits,
debts, sum or sums of money, accounts, damages, claims and
demands whatsoever, in law or in equity, which they ever had, or
now have or may have against each other, more specifically Sp.
Proceedings Nos. 7866 and 1955, CFI-Rizal, and Sp. Proc. No. 832Nueva Ecija, Civil Case No. 3033, CFI Nueva Ecija and Civil Case
No. 7452-CFI, Rizal, as well as the case filed against Manuel Quijal
for perjury with the Provincial Fiscal of Rizal, the intention being to
completely, absolutely and finally release each other, their heirs,
successors, and assigns, from any and all liability, arising wholly
or partially, directly or indirectly, from the administration,
settlement, and distribution of the assets as well as liabilities of
the estates of Francisco de Borja and Josefa Tangco, first spouse
of Francisco de Borja, and lastly, Tasiana Ongsingco Vda. de de
Borja expressly and specifically renounce absolutely her rights as
heir over any hereditary share in the estate of Francisco de Borja.
6. That Tasiana Ongsingco Vda. de de Borja, upon receipt of the
payment under paragraph 4 hereof, shall deliver to the heir Jose
de Borja all the papers, titles and documents belonging to
Francisco de Borja which are in her possession and said heir Jose
de Borja shall issue in turn the corresponding receive thereof.
7. That this agreement shall take effect only upon the fulfillment
of the sale of the properties mentioned under paragraph 1 of this
agreement and upon receipt of the total and full payment of the
proceeds of the sale of the Jalajala property "Poblacion",
otherwise, the non-fulfillment of the said sale will render this
instrument NULL AND VOID AND WITHOUT EFFECT THEREAFTER.
IN WITNESS WHEREOF, the parties hereto have her unto set their
hands in the City of Manila, Philippines, the 12th of October, 1963.

On 16 May 1966, Jose de Borja submitted for Court approval the


agreement of 12 October 1963 to the Court of First Instance of
Rizal, in Special Proceeding No. R-7866; and again, on 8 August
1966, to the Court of First Instance of Nueva Ecija, in Special
Proceeding No. 832. Tasiana Ongsingco Vda. de de Borja opposed
in both instances. The Rizal court approved the compromise
agreement, but the Nueva Ecija court declared it void and
unenforceable. Special administratrix Tasiana Ongsingco Vda. de
de Borja appealed the Rizal Court's order of approval (now
Supreme Court G.R. case No. L-28040), while administrator Jose
de Borja appealed the order of disapproval (G.R. case No. L28568) by the Court of First Instance of Nueva Ecija.
The genuineness and due execution of the compromised
agreement of 12 October 1963 is not disputed, but its validity is,
nevertheless, attacked by Tasiana Ongsingco on the ground that:
(1) the heirs cannot enter into such kind of agreement without
first probating the will of Francisco de Borja; (2) that the same
involves a compromise on the validity of the marriage between
Francisco de Borja and Tasiana Ongsingco; and (3) that even if it
were valid, it has ceased to have force and effect.
In assailing the validity of the agreement of 12 October 1963,
Tasiana Ongsingco and the Probate Court of Nueva Ecija rely on
this Court's decision in Guevara vs. Guevara. 74 Phil. 479,
wherein the Court's majority held the view that the presentation
of a will for probate is mandatory and that the settlement and
distribution of an estate on the basis of intestacy when the
decedent left a will, is against the law and public policy. It is
likewise pointed out by appellant Tasiana Ongsingco that Section
1 of Rule 74 of the Revised Rules explicitly conditions the validity
of an extrajudicial settlement of a decedent's estate by
agreement between heirs, upon the facts that "(if) the
decedentleft no will and no debts, and the heirs are all of age, or
the minors are represented by their judicial and legal
representatives ..." The will of Francisco de Borja having been
submitted to the Nueva Ecija Court and still pending probate
when the 1963 agreement was made, those circumstances, it is
argued, bar the validity of the agreement.

Upon the other hand, in claiming the validity of the compromise


agreement, Jose de Borja stresses that at the time it was entered
into, on 12 October 1963, the governing provision was Section 1,
Rule 74 of the original Rules of Court of 1940, which allowed the
extrajudicial settlement of the estate of a deceased person
regardless of whether he left a will or not. He also relies on the
dissenting opinion of Justice Moran, in Guevara vs. Guevara, 74
Phil. 479, wherein was expressed the view that if the parties have
already divided the estate in accordance with a decedent's will,
the probate of the will is a useless ceremony; and if they have
divided the estate in a different manner, the probate of the will is
worse than useless.
The doctrine of Guevara vs. Guevara, ante, is not applicable to
the case at bar. This is apparent from an examination of the terms
of the agreement between Jose de Borja and Tasiana Ongsingco.
Paragraph 2 of said agreement specifically stipulates that the sum
of P800,000 payable to Tasiana Ongsingco
shall be considered as full complete payment settlement of
her hereditary share in the estate of the late Francisco de Borja as
well as the estate of Josefa Tangco, ... and to any properties
bequeathed or devised in her favor by the late Francisco de Borja
by Last Will and Testament or by Donation Inter Vivos or Mortis
Causa or purportedly conveyed to her for consideration or
otherwise.

This provision evidences beyond doubt that the ruling in the


Guevara case is not applicable to the cases at bar. There was here
no attempt to settle or distribute the estate of Francisco de Borja
among the heirs thereto before the probate of his will. The clear
object of the contract was merely the conveyance by Tasiana
Ongsingco of any and all her individual share and interest, actual
or eventual in the estate of Francisco de Borja and Josefa Tangco.
There is no stipulation as to any other claimant, creditor or
legatee. And as a hereditary share in a decedent's estate is
transmitted or vested immediately from the moment of the death
of such causante or predecessor in interest (Civil Code of the
Philippines, Art. 777) 3 there is no legal bar to a successor (with
requisite contracting capacity) disposing of her or his hereditary
share immediately after such death, even if the actual extent of
such share is not determined until the subsequent liquidation of
the estate. 4 Of course, the effect of such alienation is to be
deemed limited to what is ultimately adjudicated to the vendor
heir. However, the aleatory character of the contract does not
affect the validity of the transaction; neither does the coetaneous
agreement that the numerous litigations between the parties (the
approving order of the Rizal Court enumerates fourteen of them,
Rec. App. pp. 79-82) are to be considered settled and should be
dismissed, although such stipulation, as noted by the Rizal Court,
gives the contract the character of a compromise that the law
favors, for obvious reasons, if only because it serves to avoid a
multiplicity of suits.
It is likewise worthy of note in this connection that as the
surviving spouse of Francisco de Borja, Tasiana Ongsingco was his
compulsory heir under article 995 et seq. of the present Civil
Code. Wherefore, barring unworthiness or valid disinheritance, her
successional interest existed independent of Francisco de Borja's
last will and testament and would exist even if such will were not
probated at all. Thus, the prerequisite of a previous probate of the
will, as established in the Guevara and analogous cases, can not
apply to the case of Tasiana Ongsingco Vda. de de Borja.

Since the compromise contract Annex A was entered into by and


between "Jose de Borja personally and as administrator of the
Testate Estate of Josefa Tangco" on the one hand, and on the
other, "the heir and surviving spouse of Francisco de Borja by his
second marriage, Tasiana Ongsingco Vda. de de Borja", it is clear
that the transaction was binding on both in their individual
capacities, upon the perfection of the contract, even without
previous authority of the Court to enter into the same. The only
difference between an extrajudicial compromise and one that is
submitted and approved by the Court, is that the latter can be
enforced by execution proceedings. Art. 2037 of the Civil Code is
explicit on the point:
8. Art. 2037. A compromise has upon the parties the effect and
authority of res judicata; but there shall be no execution except in
compliance with a judicial compromise.
It is argued by Tasiana Ongsingco that while the agreement Annex
A expressed no definite period for its performance, the same
was intended to have a resolutory period of 60 days for its
effectiveness. In support of such contention, it is averred that
such a limit was expressly stipulated in an agreement in similar
terms entered into by said Ongsingco with the brothers and sister
of Jose de Borja, to wit, Crisanto, Matilde and Cayetano, all
surnamed de Borja, except that the consideration was fixed at
P600,000 (Opposition, Annex/Rec. of Appeal, L-28040, pp. 39- 46)
and which contained the following clause:
III. That this agreement shall take effect only upon the
consummation of the sale of the property mentioned herein and
upon receipt of the total and full payment of the proceeds of the
sale by the herein owner heirs-children of Francisco de Borja,
namely, Crisanto, Cayetano and Matilde, all surnamed de Borja;
Provided that if no sale of the said property mentioned herein is
consummated, or the non-receipt of the purchase price thereof by
the said owners within the period of sixty (60) days from the date
hereof, this agreement will become null and void and of no further
effect.

Ongsingco's argument loses validity when it is considered that


Jose de Borja was not a party to this particular contract (Annex 1),
and that the same appears not to have been finalized, since it
bears no date, the day being left blank "this day of October
1963"; and while signed by the parties, it was not notarized,
although plainly intended to be so done, since it carries a
proposed notarial ratification clause. Furthermore, the
compromise contract with Jose de Borja (Annex A), provides in its
par. 2 heretofore transcribed that of the total consideration of
P800, 000 to be paid to Ongsingco, P600,000 represent the
"prorata share of the heirs Crisanto, Cayetano and Matilde all
surnamed de Borja" which corresponds to the consideration of
P600,000 recited in Annex 1, and that circumstance is proof that
the duly notarized contract entered into wit Jose de Borja under
date 12 October 1963 (Annex A), was designed to absorb and
supersede the separate unformalize agreement with the other
three Borja heirs. Hence, the 60 days resolutory term in the
contract with the latter (Annex 1) not being repeated in Annex A,
can not apply to the formal compromise with Jose de Borja. It is
moreover manifest that the stipulation that the sale of the
Hacienda de Jalajala was to be made within sixty days from the
date of the agreement with Jose de Borja's co-heirs (Annex 1) was
plainly omitted in Annex A as improper and ineffective, since the
Hacienda de Jalajala (Poblacion) that was to be sold to raise the
P800,000 to be paid to Ongsingco for her share formed part of the
estate of Francisco de Borja and could not be sold until authorized
by the Probate Court. The Court of First Instance of Rizal so
understood it, and in approving the compromise it fixed a term of
120 days counted from the finality of the order now under appeal,
for the carrying out by the parties for the terms of the contract.

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.

It is finally charged by appellant Ongsingco, as well as by the


Court of First Instance of Nueva Ecija in its order of 21 September
1964, in Special Proceedings No. 832 (Amended Record on Appeal
in L-28568, page 157), that the compromise agreement of 13
October 1963 (Annex "A") had been abandoned, as shown by the
fact that, after its execution, the Court of First Instance of Nueva
Ecija, in its order of 21 September 1964, had declared that "no
amicable settlement had been arrived at by the parties", and that
Jose de Borja himself, in a motion of 17 June 1964, had stated that
the proposed amicable settlement "had failed to materialize".

It is difficult to believe, however, that the amicable settlement


referred to in the order and motion above-mentioned was the
compromise agreement of 13 October 1963, which already had
been formally signed and executed by the parties and duly
notarized. What the record discloses is that some time after its
formalization, Ongsingco had unilaterally attempted to back out
from the compromise agreement, pleading various reasons
restated in the opposition to the Court's approval of Annex "A"
(Record on Appeal, L-20840, page 23): that the same was invalid
because of the lapse of the allegedly intended resolutory period of
60 days and because the contract was not preceded by the
probate of Francisco de Borja's will, as required by this
Court's Guevarra vs. Guevara ruling; that Annex "A" involved a
compromise affecting Ongsingco's status as wife and widow of
Francisco de Borja, etc., all of which objections have been already
discussed. It was natural that in view of the widow's attitude, Jose
de Borja should attempt to reach a new settlement or novatory
agreement before seeking judicial sanction and enforcement of
Annex "A", since the latter step might ultimately entail a longer
delay in attaining final remedy. That the attempt to reach another
settlement failed is apparent from the letter of Ongsingco's
counsel to Jose de Borja quoted in pages 35-36 of the brief for
appellant Ongsingco in G.R. No. 28040; and it is more than
probable that the order of 21 September 1964 and the motion of
17 June 1964 referred to the failure of the parties' quest for a
more satisfactory compromise. But the inability to reach a
novatory accord can not invalidate the original compromise
(Annex "A") and justifies the act of Jose de Borja in finally seeking
a court order for its approval and enforcement from the Court of
First Instance of Rizal, which, as heretofore described, decreed
that the agreement be ultimately performed within 120 days from
the finality of the order, now under appeal.
We conclude that in so doing, the Rizal court acted in accordance
with law, and, therefore, its order should be upheld, while the
contrary resolution of the Court of First Instance of Nueva Ecija
should be, and is, reversed.

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.

It is undisputed that the Hacienda Jalajala, of around 4,363


hectares, had been originally acquired jointly by Francisco de
Borja, Bernardo de Borja and Marcelo de Borja and their title
thereto was duly registered in their names as co-owners in Land
Registration Case No. 528 of the province of Rizal, G.L.R.O. Rec.
No. 26403 (De Barjo vs. Jugo, 54 Phil. 465). Subsequently, in
1931, the Hacienda was partitioned among the co-owners: the
Punta section went to Marcelo de Borja; the Bagombong section
to Bernardo de Borja, and the part in Jalajala proper (Poblacion)
corresponded to Francisco de Borja (V. De Borja vs. De Borja 101
Phil. 911, 932).
The lot allotted to Francisco was described as
Una Parcela de terreno en Poblacion, Jalajala: N. Puang River; E.
Hermogena Romero; S. Heirs of Marcelo de Borja O. Laguna de
Bay; containing an area of 13,488,870 sq. m. more or less,
assessed at P297,410. (Record on Appeal, pages 7 and 105)
On 20 November 1962, Tasiana O. Vda. de Borja, as Administratrix
of the Testate Estate of Francisco de Borja, instituted a complaint
in the Court of First Instance of Rizal (Civil Case No. 7452) against
Jose de Borja, in his capacity as Administrator of Josefa Tangco
(Francisco de Borja's first wife), seeking to have the Hacienda
above described declared exclusive private property of Francisco,
while in his answer defendant (now appellant) Jose de Borja
claimed that it was conjugal property of his parents (Francisco de
Borja and Josefa Tangco), conformably to the presumption
established by Article 160 of the Philippine Civil Code
(reproducing Article 1407 of the Civil Code of 1889), to the effect
that:
Art. 160. All property of the marriage is presumed to belong to the
conjugal partnership, unless it be proved that it pertains
exclusively to the husband or to the wife.
Defendant Jose de Borja further counterclaimed for damages,
compensatory, moral and exemplary, as well as for attorney's
fees.

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").

Notwithstanding the four statements aforesaid, and the fact that


they are plain admissions against interest made by both Francisco
de Borja and the Administratrix of his estate, in the course of
judicial proceedings in the Rizal and Nueva Ecija Courts,
supporting the legal presumption in favor of the conjugal
community, the Court below declared that the Hacienda de
Jalajala (Poblacion) was not conjugal property, but the private
exclusive property of the late Francisco de Borja. It did so on the
strength of the following evidences: (a) the sworn statement by
Francis de Borja on 6 August 1951 (Exhibit "F") that
He tomado possession del pedazo de terreno ya delimitado
(equivalente a 1/4 parte, 337 hectareas) adjunto a mi terreno
personal y exclusivo (Poblacion de Jalajala, Rizal).
and (b) the testimony of Gregorio de Borja, son of Bernardo de
Borja, that the entire Hacienda had been bought at a foreclosure
sale for P40,100.00, of which amount P25,100 was contributed by
Bernardo de Borja and P15,000. by Marcelo de Borja; that upon
receipt of a subsequent demand from the provincial treasurer for
realty taxes the sum of P17,000, Marcelo told his brother
Bernardo that Francisco (son of Marcelo) wanted also to be a coowner, and upon Bernardo's assent to the proposal, Marcelo issue
a check for P17,000.00 to pay the back taxes and said that the
amount would represent Francisco's contribution in the purchase
of the Hacienda. The witness further testified that
Marcelo de Borja said that that money was entrusted to him by
Francisco de Borja when he was still a bachelor and which he
derived from his business transactions. (Hearing, 2 February
1965, t.s.n., pages 13-15) (Emphasis supplied)

The Court below, reasoning that not only Francisco's sworn


statement overweighed the admissions in the inventories relied
upon by defendant-appellant Jose de Borja since probate courts
can not finally determine questions of ownership of inventoried
property, but that the testimony of Gregorio de Borja showed that
Francisco de Borja acquired his share of the original Hacienda with
his private funds, for which reason that share can not be regarded
as conjugal partnership property, but as exclusive property of the
buyer, pursuant to Article 1396(4) of Civil Code of 1889 and
Article 148(4) of the Civil Code of the Philippines.
The following shall be the exclusive property of each spouse:
xxx xxx xxx
(4) That which is purchased with exclusive money of the wife or of
the husband.
We find the conclusions of the lower court to be untenable. In the
first place, witness Gregorio de Borja's testimony as to the source
of the money paid by Francisco for his share was plain hearsay,
hence inadmissible and of no probative value, since he was
merely repeating what Marcelo de Borja had told him (Gregorio).
There is no way of ascertaining the truth of the statement, since
both Marcelo and Francisco de Borja were already dead when
Gregorio testified. In addition, the statement itself is improbable,
since there was no need or occasion for Marcelo de Borja to
explain to Gregorio how and when Francisco de Borja had earned
the P17,000.00 entrusted to Marcelo. A ring of artificiality is
clearly discernible in this portion of Gregorio's testimony.

As to Francisco de Borja's affidavit, Exhibit "F", the quoted portion


thereof (ante, page 14) does not clearly demonstrate that the "mi
terreno personal y exclusivo (Poblacion de Jalajala, Rizal) " refers
precisely to the Hacienda in question. The inventories (Exhibits 3
and 4) disclose that there were two real properties in Jalajala
owned by Francisco de Borja, one of 72.038 sq. m., assessed at
P44,600, and a much bigger one of 1,357.260.70 sq. m., which is
evidently the Hacienda de Jalajala (Poblacion). To which of these
lands did the affidavit of Francisco de Borja (Exhibit "F") refer to?
In addition, Francisco's characterization of the land as "mi terreno
personal y exclusivo" is plainly self-serving, and not admissible in
the absence of cross examination.
It may be true that the inventories relied upon by defendantappellant (Exhibits "2", "3", "4" and "7") are not conclusive on the
conjugal character of the property in question; but as already
noted, they are clear admissions against the pecuniary interest of
the declarants, Francisco de Borja and his executor-widow,
Tasiana Ongsingco, and as such of much greater probative weight
than the self-serving statement of Francisco (Exhibit "F"). Plainly,
the legal presumption in favor of the conjugal character of the
Hacienda de Jalajala (Poblacion) now in dispute has not been
rebutted but actually confirmed by proof. Hence, the appealed
order should be reversed and the Hacienda de Jalajala (Poblacion)
declared property of the conjugal partnership of Francisco de
Borja and Josefa Tangco.
No error having been assigned against the ruling of the lower
court that claims for damages should be ventilated in the
corresponding special proceedings for the settlement of the
estates of the deceased, the same requires no pro announcement
from this Court.
IN VIEW OF THE FOREGOING, the appealed order of the Court of
First Instance of Rizal in Case No. L-28040 is hereby affirmed;
while those involved in Cases Nos. L-28568 and L-28611 are
reversed and set aside. Costs against the appellant Tasiana
Ongsingco Vda. de Borja in all three (3) cases.

Concepcion, C.J., Makalintal, Zaldivar, Castro, Teehankee,


Barredo, Makasiar, Antonio and Esguerra, JJ., concur.
Fernando, J., took no part.

G.R. No. L-41715 June 18, 1976 ROSALIO BONILLA (a minor)


SALVACION BONILLA (a minor) and PONCIANO BONILLA (their
father) who represents the minors, petitioners,
vs.
LEON BARCENA, MAXIMA ARIAS BALLENA, ESPERANZA BARCENA,
MANUEL BARCENA, AGUSTINA NERI, widow of JULIAN TAMAYO and
HON. LEOPOLDO GIRONELLA of the Court of First Instance of
Abra, respondents.Federico Paredes for petitioners.Demetrio V.
Pre for private respondents.

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

On August 28, 1975, the court denied the motion for


reconsideration filed by counsel for the plaintiff for lack of merit.
On September 1, 1975, counsel for deceased plaintiff filed a
written manifestation praying that the minors Rosalio Bonilla and
Salvacion Bonilla be allowed to substitute their deceased mother,
but the court denied the counsel's prayer for lack of merit. From
the order, counsel for the deceased plaintiff filed a second motion
for reconsideration of the order dismissing the complaint claiming
that the same is in violation of Sections 16 and 17 of Rule 3 of the
Rules of Court but the same was denied.
Hence, this petition for review.

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

deceased plaintiff has suggested to the respondent Court that the


uncle of the minors be appointed to act as guardian ad litem for
them. Unquestionably, the respondent Court has gravely abused
its discretion in not complying with the clear provision of the Rules
of Court in dismissing the complaint of the plaintiff in Civil Case
No. 856 and refusing the substitution of parties in the case.
IN VIEW OF THE FOREGOING, the order of the respondent Court
dismissing the complaint in Civil Case No. 856 of the Court of First
Instance of Abra and the motions for reconsideration of the order
of dismissal of said complaint are set aside and the respondent
Court is hereby directed to allow the substitution of the minor
children, who are the petitioners therein for the deceased plaintiff
and to appoint a qualified person as guardianad litem for them.
Without pronouncement as to costs.
SO ORDERED.

G.R. No. 118464 December 21, 1998 HEIRS OF IGNACIO CONTI


and ROSARIO CUARIO, petitioner,
vs.
COURT OF APPEALS and LYDIA S. REYES as Attorney-in-Fact of
JOSEFINA S. REYES, BERNARDITA S. PALILIO, HERMINIA S. PALILIO,
REMEDIOS A. SAMPAYO, ILUMINADA A. SAMPAYO, ENRICO A.
SAMPAYO CARLOS A. SAMPAYO, GENEROSO C. SAMPAYO, MYRNA
C. SAMPAYO, ROSALINO C. SAMPAYO, MANUEL C. SAMPAYO, DELIA
A. SAMPAYO, CORAZON C. SAMPAYO, NILO C. SAMPAYO, and
LOLITA A. SAMPAYO in her own behalf and as Attorney-in-Fact of
NORMA A. SAMPAYO, respondents.

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

At the trial, private respondents presented Lydia Sampayo Reyes


and Adelaida Sampayo to prove that they were the collateral heirs
of the deceased Lourdes Sampayo and therefore entitled to her
rights as co-owner of the subject lot. Bringing with her the original
copy of her certificate of live birth showing that her father was
Inocentes Reyes and her mother was Josefina Sampayo, 6 Lydia
Sampayo Reyes testified that she was one of the nieces of
Lourdes Sampayo, being the daughter of Josefina Sampayo, the
only living sibling of Lourdes. Lydia also testified that Lourdes had
another sister named Remedios J. Sampayo who died in 1948, and
two brothers, Manuel J. Sampayo and Luis J. Sampayo who died in
1983 and 1960, respectively. To prove that Josefina, Remedios,
Luis and Manuel were siblings of Lourdes, their baptismal
certificates together with a photocopy of the birth certificate of
Manuel Sampayo were offered in evidence. These documents
showed that their father and mother, like Lourdes Sampayo, were
Antonio Sampavo and Brigida Jaraza.
The certificates of baptism presented as part of the testimony of
Lydia Sampayo Reyes were prepared by Rev. Franklin C. Rivero
who duly certified that all data therein written were in accordance
with the church records, hence, the lower left portion of the
documents bearing the seal of the church with the notation as to
where the documents were logged in particular. 7 The baptismal
certificates were presented in lieu of the birth certificates because
the repository of those documents, the Office of the Civil Registrar
of Lucena City, had been razed by fire On two separate occasions,
27 November 1974 and 30 August 1983, thus all civil registration
records were totally burned. 8 On the other hand, a photocopy of
Manuel's birth certificate dated 25 October 1919 (Exh.
"I") 9 showed that it was issued by the Local Civil Registrar of
Lucena, Tayabas (now Lucena City).
Adelaida Sampayo, widow of Manuel Sampayo, testified that her
husband Manuel was the brother of the deceased Lourdes, and
with the death of Manuel, Luis and Remedios, the only living
sibling of Lourdes was Josefina. 10

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

On 4 April 1991 the trial court declared private respodents as the


rightful heirs of Lourdes Sampayo. It further ordered private
respondents and petitioners to submit a project of partition of the
residential house and lot for confirmation by the court. 21
Petitioners elevated the case to the Court of Appeals contending
that the trial court erred in finding that private respondents were
the heirs of Lourdes Sampayo and that they were entitled to the
partition of the lot and the improvements thereon. 22
On 30 March 1994 the Court of Appeals affirmed the assailed RTC
decision and held 23
In the instant case, plaintiffs [now private respondents] were able
to prove and establish by preponderance of evidence that they
are the collateral heirs of deceased Lourdes Sampayo and
therefore the lower court did not err in ordering herein plaintiffs
[now private respondents] and defendants [now petitioners] to
submit a project of partition of the residential house and lot
owned in common by the deceased Lourdes Sampayo and
defendant spouses Conti for confirmation by the court . . . .
Considering our earlier finding that the lower court did not err in
declaring herein plaintiffs [now private respondents] as heirs of
deceased Sampayo and therefore entitled to inherit her property,
the argument of the appellants [now petitioners] that the
plaintiffs [now private respondents] are not entitled, to partition is
devoid of merit (insertions in 11 supplied).

Respondent court also ruled, citing Hernandez v.


Padua 24 and Marabilles v. Quito, 25 that a prior and separate
judicial declaration of heirship was not necessary 26 and that
private respondents became the co-owners of the portion of the
property owned and registered in the name of Lourdes Sampayo
upon her death and, consequently, entitled to the immediate
possession thereof and all other incidents/rights of ownership as
provided for by law, including the right to demand partition under
Art. 777 of the Civil Code, 27 and Ilustre v. Alaras
Frondosa 28 holding that the property belongs to the heirs at the
moment of death of the decedent, as completely as if he had
executed and delivered to them a deed for the same before his
death.
The appellate court subsequently denying a motion for
reconsideration upheld the probative value of the documentary
and testimonial evidence of private respondents and faulted
petitioners for not having subpoenaed Josefina if they believed
that she was a vital witness in the case. 29 Hence, petitioners
pursued this case arguing that a complaint for partition to claim a
supposed share of the deceased co-owner cannot prosper without
prior settlement of the latter's estate and compliance with all
legal requirements especially publication, and private
respondents were not able to prove by competent evidence their
relationship with the deceased. 30
There is no merit in the petition. A prior settlement of the estate
is not essential before the heirs can commence any action
originally pertaining to the deceased as we explained in Quison v.
Salud 31

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

Sec. 1. Complaint in an action for partition of real estate. A


person having the right to compel the partition of real estate may
do so as in this rule prescribed, setting forth in his complaint the
nature and extent of his title and an adequate description of the
real estate of which partition is demanded and joining as
defendants all the other persons interested in the property.
A cursory reading of the aforecited rule shows that publication is
not required as erroneously maintained by petitioners. There are
two (2) simultaneous issues in an action for partition. First,
whether the plaintiff is indeed a co-owner of the property sought
to be partitioned, and second, if answered in the affirmative, the
manner of the division of the property, i.e., what portion should
go to which co-owner. 34 Thus, in this case, we must determine
whether private respondents, by preponderance of evidence,
have been able to establish that they are co-owners by way of
succession as collateral heirs of the late Lourdes Sampayo as they
claim to be, either a sister, a nephew or a niece. These, private
respondents were able to prove in the trial court as well as before
respondent Court of Appeals.
Petitioners however insist that there was no such proof of filiation
because: (a) mere photocopies of birth certificates do not prove
filiation; (b) certifications on non-availability of records of birth do
not prove filiation; (c) baptismal certificates do not prove filiation
of alleged collateral relatives of the deceased; and, (d) the
testimonies of Lydia S. Reyes, alleged daughter of Josefina Reyes,
and Adelaida Sampayo, alleged sister-in-law of Josefina and
Lourdes, were incompetent as Lydia was made to testify on
events which happened before her birth while Adelaida testified
on matters merely narrated to her. 35
We are not persuaded. Altogether, the documentary and
testimonial evidence submitted that private respondents are
competent and adequate proofs that private respondents are
collateral heirs of Lourdes Sampayo. Private respondents assert
that they are co-owners of one-half (1/2) pro-indiviso share of the
subject property by way of legal or intestate succession.

Succession is a mode of acquisition by vietue of which the


property, rights and obligations to the extent of the value of the
inheritance of a person are transmitted through his death to
another or others either by his will or by operation of law. 36 Legal
or intestate succession takes place if a person dies without a will,
or with a void will, or one which has subsequently lost its
validity. 37 If there are no descendants, ascendants, illegitimate
children, or a surviving spuoses, the collateral relatives shall
succeed to the entire estate of the decedent. 38 It was established
during the trial that Lourdes died intestate and without issues.
Private respondents as sister, nephews and nieces now claim to
be the collateral relatives of Lourdes.
Under Art. 172 of the Family Code, 39 the filiation of ligitimate
children shall be proved by any other means allowed by the Rules
of Court and special laws, in the absence of a record of birth or a
parent's admission of such legitimate filiation in a public or
private document duly signed by the parent. Such other proof of
one's filiation may be a baptismal certificate, a judicial admission,
a family Bible in which his name has been entered, common
reputation respecting his pedigree, admission by silence, the
testimonies of witnesses and other kinds of proof admissible
under Rule 130 of the Rules of Court. 40 By analogy, this method
of proving filiation may also be utilized in the instant case.
Public documents are the written official acts, or records of the
official act of the sovereign authority, official bodies and tribunals,
and public officers, whether of the Philippines, or of a foreign
country. 41 The baptismal certificates presented in evidence by
private respondents are public documents. Parish priests continue
to be the legal custodians of the parish records and are
authorized to issue true copies, in the form of certificates, of the
entries contained therein. 42
The admissibility of baptismal certificates offered by Lydia S.
Reyes, absent the testimony of the officiating priest or the official
recorder, was settled in People v. Ritter, citing U.S. v. de Vera (28
Phil.105 [1914], 43 thus.

. . . the entries made in the Registry Book may be considered as


entries made in the course of the business under Section 43 of
Rule 130, which is an exception to the hearsay rule. The baptisms
administered by the church are one of its transactions in the
exercise of ecclesiastical duties and recorded in the book of the
church during this course of its business.
It may be argued that baptismal certificates are evidence only of
the administration of the sacrament, but in this case, there were
four (4) baptismal certificates which, when taken together,
uniformly show that Lourdes, Josefina, Remedios and Luis had the
same set of parents, as indicated therein. Corroborated by the
undisputed testimony of Adelaida Sampayo that with the demise
of Lourdes and her brothers Manuel, Luis and sister Remedios, the
only sibling left was Josefina Sampayo Reyes, such baptismal
certificates have acquired evidentiary weight to prove filiation.
Petitioners' objection to the photocopy of the certificate of birth of
Manuel Sampayo was properly discarded by the court a quo and
respondent Court of Appeals. According to Sec. 3, par. (1), Rule
130, of the Rules of Court, when the subject of inquiry is the
contents of a document, no evidence shall be admissible other
than the original document itself except when the original has
been lost or destroyed or cannot be produced in court, without
bad faith on the part of the offeror. The loss or destruction of the
original certificate of birth of Manuel T. Sampayo was duly
established by the certification issued by the Office of the Local
Civil Registrar of Lucena City to the effect that its office was
completely destroyed by fire on 27 November 1974 and 30
August 1983, respectively, and as a consequence thereof, all civil
registration records were totally burned.

Apparently, there seems to be some merit in petitioners'


contention that the testimony of Adelaida Sampayo cannot prove
filiation for being hearsay considering that there was no
declaration ante litem motam as required by the rules, i.e., that
the declaration relating to pedigree was made before the
controversy occurred. Nonetheless, petitioners made no move to
dispute her testimony in open court when she was mentioning
who the brothers and sisters of Lourdes were. As correctly
observed by the trial court in explicit terms, "the documentary
and testimonial evidence not were not disputed by defendants"
(now petitioners). 44 Notably, when Rosario Cuario Conti took the
witness stand, she admitted that she was not aware of the
identities of the parents of the deceased. Clearly, this runs,
counter to the relationship akin to filial bonding which she
professed she had enjoyed with the decedent. As wife of Ignacio
Contil, she was supposedly a "sister-in-law" of the deceased
Lourdes Sampayo who regarded Ignacio as a brother. However, in
sum, we rule that all the pieces of evidence adduced, taken
together, clearly preponderate to the right of private respondents
to maintain the action for partition. Absent any reversible error in
the assailed Decision and Resolution of the Court of Appeals, this
petition for review on certiorari will not lie.
WHEREFORE, the petition is DENIED. The assailed Decision dated
30 March 1994 and Resolution dated 21 December 1994 of the
Court of Appeals are AFFIRMED. Costs against petitioners.
SO ORDERED.

G.R. No. 149017


November 28, 2008 VALENTE
RAYMUNDO,petitioner, vs. TEOFISTA ISAGON VDA. DE SUAREZ,
DANILO I. SUAREZ, EUFROCINA SUAREZ, MARCELO I. SUAREZ, JR,
EVELYN SUAREZ, ET AL., respondents.

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;

NOW, THEREFORE, in consideration of the foregoing premises, the


Parties have agreed to settle and liquidate the assets of the
conjugal partnership between the deceased and TEOFISTA
ISAGON, and to settle and adjudicate the estate of the said
deceased, by and pursuance to these presents, in the following
manner, to wit:
1. That TEOFISTA ISAGON, as the surviving spouse and partner of
the deceased, shall receive in absolute and exclusive ownership
the following properties as her lawful share in the assets of the
conjugal partnership of gains between her and the deceased, to
wit:
(a) Half (1/2) interest and participation in the parcel of land
covered by Tax Declaration No. 6938, situated at Sitio Pantayan,
Municipality of Taytay, Province of Rizal;
(b) Half (1/2) interest and participation in the parcel of land
covered by Tax Declaration No. 6939, situated at Sitio Pantayan,
Municipality of Taytay, Province of Rizal;
(c) Half (1/2) interest and participation in the parcel of land
covered by TCT No. 38291, situated at Barrio Rosario, Municipality
of Pasig, Province of Rizal;
(d) Half (1/2) interest and participation in the parcel of land
covered by TCT No. 38290, situated at Barrio Rosario, Municipality
of Pasig, Province of Rizal;
(e) TWELVE THOUSAND FIVE HUNDRED THIRTY PESOS AND
NINETY (P12,530.90) deposited with the Commercial Bank and
Trust Company of the Philippines, and THIRTY-NINE PESOS
(P39.00) deposited with Prudential Bank.
2. That the Parties TEOFISTA ISAGON, EUFROCINA S. ANDRES,
ELPIDIO SUAREZ, DANILO SUAREZ, EVELYN SUAREZ, MARCELO
SUAREZ, JR. and REGGINEO SUAREZ, shall each and all receive
and be entitled to a share equivalent to one-seventh (1/7) of the
estate of the deceased MARCELO SUAREZ, which estate is
comprised of the following properties, to wit:
(a) A parcel of land covered by TCT No. 30680, situated at Barrio
Kaniogan, Municipality of Pasig, Province of Rizal, with an
assessed value of P4,150.00.

(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.

Curiously, despite the partition, title to the foregoing properties,


explicitly identified in the Extrajudicial Settlement of Estate as
forming part of Marcelo's and Isagon's property regime, remained
in the couple's name. Not surprisingly, Teofista continued to
administer and manage these properties. On the whole, apart
from those now owned exclusively by Teofista, all the properties
were held pro indiviso by Teofista and her children; and respective
titles thereto were not changed, with Teofista as de
facto administrator thereof.
In 1975, Rizal Realty Corporation (Rizal Realty) and Teofista, the
latter owning ninety percent (90%) of the former's shares of
stock, were sued by petitioner Valente Raymundo, his wife
Violeta, Virginia Banta and Maria Concepcion Vito (plaintiffs) in
consolidated cases for Rescission of Contract and Damages,
docketed as Civil Case Nos. 21736 to 21739. Thereafter, in 1975,
the then Court of First Instance (CFI) of Rizal, Branch 1, rendered
judgment: (1) rescinding the respective contracts of plaintiffs with
Rizal Realty and Teofista, and (2) holding the two defendants
solidarily liable to plaintiffs for damages in the aggregate principal
amount of about P70,000.00.9
When the judgment of the CFI became final and executory, herein
subject properties were levied and sold on execution on June 24,
1983 to satisfy the judgment against Teofista and Rizal Realty. The
aforementioned plaintiffs were the highest bidder, and bought the
levied properties for the amount ofP94,170.00. As a result, a
certificate of sale was issued to them and registered in their favor
on August 1, 1983. On July 31, 1984, the Provincial Sheriff of Rizal
issued a final deed of sale over the subject properties.

Parenthetically, before expiration of the redemption period, or on


June 21, 1984, herein respondents filed a revindicatory action
against petitioner Valente, Violeta, Virginia and Maria Concepcion,
docketed as Civil Case No. 51203, for the annulment of the
auction sale and recovery of ownership of the levied properties.
Essentially, respondents alleged in their complaint that they
cannot be held liable for the judgment rendered against their
mother, Teofista, not having been impleaded therein; and
consequently, the subject properties, which they own pro
indiviso with their mother, can neither be levied nor be sold on
execution.
Meanwhile, the RTC, Branch 151, formerly the CFI, Branch 1, in
Civil Case Nos. 21376 to 21379, issued an Order10 directing
Teofista: (1) to vacate the subject properties, (2) to desist from
despoiling, dismantling, removing or alienating the improvements
thereon, (3) to place petitioner Valente, Violeta, Virginia and Maria
Concepcion in peaceful possession thereof, and (4) to surrender
to them the owner's duplicate copy of the torrens title and other
pertinent documents. Herein respondents, joined by their mother,
Teofista, filed a Motion for Reconsideration arguing that the
subject properties are co-owned by them and further informing
the RTC of the filing and pendency of Civil Case No. 51203.
Nonetheless, the trial court denied Teofista's and herein
respondents' motion, reiterated its previous order, which included,
among others, the order for Teofista and all persons claiming right
under her, to vacate the lots subject of the judicial sale.
Undaunted, Teofista and herein respondents filed a petition
for certiorari before the CA to annul the foregoing orders. The
appellate court, on July 6, 1987, dismissed Teofista's and herein
respondents' petition, thus:

We believe this petition cannot prosper for two reasons. First, as


purported case for certiorari it fails to show how the respondent
judge had acted without or in excess of jurisdiction or with grave
abuse of discretion. The two orders being assailed were preceded
by a final judgment, a corresponding writ of execution, a levy on
execution and a judicial sale, all of which enjoy a strong sense
presumption of regularity.
Secondly, as far as [petitioner] Teofista Suarez is concerned, she
cannot complain about the levy because she was a party in the
consolidated cases where judgment was rendered against her in
her personal capacity. Since she did not appeal from the decision,
she cannot say that the judgment is erroneous for an obligation
that belong to the corporation. And with respect to the children of
Teofista Suarez, who are co-petitioners in this proceedings [herein
respondents], suffice it to point out that not being parties in the
consolidated cases, what they should have done was to
immediately file a third party claim. The moment levy was made
on the parcels of land, which they claim are theirs by virtue of
hereditary succession, they should have seasonably filed such
claim to protect their rights. As the record discloses, however, the
children chose to remain silent, and even allowed the auction sale
to be held, filing almost a year later a half-hearted complaint to
annul the proceedings which they allowed to be dismissed by not
diligently prosecuting it.
In Santos v. Mojica (10 SCRA 318), a partition case with thirdparty claimants, the Supreme Court came out with the following
ruling: "The procedure (a petition for certiorari) followed by him (a
petitioner not party to the original partition case) in vindicating
his right is not the one sanctioned by law, for he should have filed
a separate and independent action making parties therein the
sheriff and the plaintiffs responsible for the execution xxx. It can,
therefore, be said that (he) acted improperly in filing the present
petition because his remedy was to file a separate and
independent action to vindicate his ownership over the land.
WHEREFORE, the petition is denied and the restraining order
previously issued is DISSOLVED, with costs against petitioners. 11

On the other litigation front concerning Civil Case No. 51203, a


writ of preliminary injunction was issued by the RTC Pasig, Branch
155, on February 25, 1985, enjoining petitioner Valente, Violeta,
Virginia and Maria Concepcion from transferring to third parties
the levied properties based on its preliminary finding that the
auctioned properties are co-owned by Teofista and herein
respondents. Subsequently, however, Civil Case No. 51203 was
dismissed by the RTC, Branch 155, at the instance of petitioner
Valente for failure of herein respondents to prosecute. But in yet
another turn of events, the RTC, Branch 155, lifted its previous
order of dismissal and directed the issuance of alias summons.
Thus, it was now petitioner Valente's, Violeta's, Virginia's and
Maria Concepcion's turn to file a petition for certiorari with the CA,
assailing the various orders of the RTC, Branch 155, which all
rejected their bid to dismiss Civil Case No. 51203. The CA granted
their petition, thus:
And the fact that herein private respondents, as the legal heirs of
Teofista Vda. de Suarez and supposedly not parties in Civil Case
Nos. 21376 - 21379 does not preclude the application of the
doctrine of res judicata since, apart from the requisites
constitutive of this procedural tenet, they were admittedly the
children of Teofista Suarez, who is the real party-in-interest in the
previous final judgment. As successors-in-interest of Teofista
Suarez, private respondents merely stepped into the shoes of
their mother in regard to the levied pieces of property. Verily,
there is identity of parties, not only where the parties in both
actions are the same, but where there is privity with them as in
the cases of successors-in-interest by title subsequent to the
commencement of the action or where there is substantial
identity.
Finally, the action to annul the judicial sale filed by herein private
respondents is not the reinvindicatory suit, much less the third
party claim contemplated by Section 17 of Rule 39.

WHEREFORE, the petition for certiorari is hereby granted and the


questioned orders dated February 25, 1985, May 19, 1989 and
February 26, 1990 issued in Civil Case No. 51203 are hereby
annulled; further respondent judge is ordered to dismiss Civil
Case No. 51203.12
From this ruling, herein respondents appealed to the Supreme
Court. In Suarez v. Court of Appeals, 13 we reversed the appellate
court, thus:
Even without touching on the incidents and issues raised by both
petitioner [herein respondents] and private respondents
[petitioner Valente, Violeta, Virginia and Maria Concepcion] and
the developments subsequent to the filing of the complaint, [w]e
cannot but notice the glaring error committed by the trial court.
It would be useless to discuss the procedural issue on the validity
of the execution and the manner of publicly selling en masse the
subject properties for auction. To start with, only one-half of the 5
parcels of land [subject properties] should have been the subject
of the auction sale.
The law in point is Article 777 of the Civil Code, the law applicable
at the time of the institution of the case:
The rights to the succession are transmitted from the moment of
the death of the decedent."
Article 888 further provides:
"The legitime of the legitimate children and descendants consists
of one-half of the hereditary estate of the father and of the
mother.
The latter may freely dispose of the remaining half, subject to the
rights of illegitimate children and of the surviving spouse as
hereinafter provided."
Article 892, par. 2 likewise provides:
"If there are two or more legitimate children or descendants, the
surviving spouse shall be entitled to a portion equal to the
legitime of each of the legitimate children or descendants."
Thus, from the foregoing, the legitime of the surviving spouse is
equal to the legitime of each child.

The proprietary interest of petitioners [herein respondents] in the


levied and auctioned property is different from and adverse to
that of their mother [Teofista]. Petitioners [herein respondents]
became co-owners of the property not because of their mother
[Teofista] but through their own right as children of their deceased
father [Marcelo Sr.]. Therefore, petitioners [herein respondents]
are not barred in any way from instituting the action to annul the
auction sale to protect their own interest.
WHEREFORE, the decision of the Court of Appeals dated July 27,
1990 as well as its Resolution of August 28, 1990 are hereby
REVERSED and set aside; and Civil Case No. 51203 is reinstated
only to determine that portion which belongs to petitioners and to
annul the sale with regard to said portion.
It was at this point when another series of events transpired,
culminating in the present petition.
Upon our reinstatement of Civil Case No. 51203, each and every
pleading filed by herein respondents, as plaintiffs therein, was
hotly contested and opposed by therein defendants, including
petitioner Valente. Moreover, even at that stage, when the case
had been remanded with a directive to "determine that portion
which belongs to [herein respondents] and to annul the sale with
regard to said portion," Civil Case No. 51203 had to be re-raffled
and transferred, for varied reasons, to the different court
branches in Pasig City. In between all these, petitioner Valente,
along with the other defendants, repeatedly filed a Motion to
Dismiss Civil Case No. 51203 for the purported failure of herein
respondents to prosecute the case. Most of these Motions to
Dismiss were denied.
With each transfer of Civil Case No. 51203, the judge to which the
case was raffled had to study the records anew. Expectedly, part
of the records went missing and were lost. On April 12, 1993, the
Clerk of Court of RTC, Branch 71, to which Civil Case No. 51203
was remanded, filed a report on the records of the case, to wit:
1. The first volume of the record in the above-entitled case was
recorded as received on June 20, 1990, by Sheriff Alejandro O.
Loquinario;

2. That the staff of Branch 71 at this time was sharing a small


room with Branch 161 at the First Floor of the Justice Hall, and as
the Branch was newly formed, it had no equipment or furniture of
its own, and was still undermanned;
3. That sometime in August 1990, Branch 71 moved to the
staffroom of Branch 159 at the Second Floor of the Justice Hall;
4. That on October 25, 1990, this Court received a Notice of
Judgment dated October 22, 1990 from the Court of Appeals that
ruled the dismissal of the above-entitled case, and as per
standing instructions of Judge Graduacion A. Reyes-Claravall, the
same was bound as volume 2 of the case;
5. That just before the Christmas vacation in 1991, the branch
was forced to hastily move all of its records and equipment to
branch 69, because of the unexpected notice we received that the
room we were occupying was to be demolished in order to meet
the schedule for the renovation of the building;
6. That unfortunately, the room was demolished before the
undersigned could make a last check to see if everything was
transferred;
7. That it was only later on that this office discovered that
important documents were indeed lost, including transcripts of
stenographic notes in a case that was submitted for decision;
8. That sometime in May 1992, the branch moved its Office to its
present location;
9. That on March 8, 1993, this Court received a copy of a Decision
of the Supreme Court reversing the earlier ruling of the Court of
Appeals;
10. That it was at this time that the first volume of this case,
which was bundled along with other cases which were decided
and/or archived, was reported as missing;
11. That from the time the same was found to be missing, Judge
Claravall ordered that a search for the same be made in all of the
offices wherein this branch was forced to share a room with, as
well as the Court of Appeals, in the event that the same was
transmitted to said Court;

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.

3. An Urgent Motion [to direct compliance by plaintiffs (herein


respondents) with Supreme Court Decision or to consider the
matter submitted without evidence on the part of plaintiffs] 20 filed
by therein defendants, including herein petitioner Valente,
pointing out that plaintiffs (herein respondents) have yet to
comply with the RTC, Branch 67 Order commanding them to
submit (to the RTC) any evidence showing settlement of the
estate of the deceased Marcelo Suarez, in order for the court to
determine the portion in the estate which belongs to Teofista. The
Urgent Motion stated in paragraph 2, thus:
2. The defendants [including herein petitioner Valente] did
everything possible to expedite the disposition of this case while
the plaintiffs [herein respondents] did everything possible to
DELAY the disposition of the same obviously because the plaintiffs
[herein respondents] are in full possession and enjoyment of the
property in dispute. In its decision of September 4, 1992, the
SUPREME COURT nullified TWO final and executory DECISIONS of
the Court of Appeals in an unprecedented action. In said decision,
the Supreme Court ordered the plaintiffs [herein respondents] to
establish with evidence their personality as heirs of Marcelo
Suarez, and after being able to do so, to adduce evidence that
would determine what portion belongs to plaintiffs hence the
above matters need be litigated upon before the RTC can "annul
the sale with regard to said portion" (belonging to the plaintiffs
alleged heirs).
On these incidents, the records reveal the following Orders issued
by the different branches of the RTC:
1. Order dated March 17, 1995, issued by Presiding Judge Rodrigo
B. Lorenzo of Branch 266, Pasig City, admitting herein
respondents' Supplemental Complaint.21

2. Order dated January 22, 1996, issued by Judge Apolinario B.


Santos resolving: (a) herein respondents' Manifestation and
Motion (to execute/enforce Decision dated September 4, 1992 of
the Supreme Court), and (b) therein defendants' (including herein
petitioner Valente's) Request for Answer to Written
Interrogatories.22 The RTC, Branch 67, resolved the incidents,
thus:
From the foregoing uncontroverted facts, this Court is convinced
beyond a shadow of doubt that the Decision of the Supreme Court
of September 4, 1992, being the final arbiter in any judicial
dispute, should be implemented for the following reasons:
xxxx
On the request for Answers to Written Interrogatories filed by the
defendants, it is obvious that at this stage of the proceedings
where the Supreme Court had already pronounced the undisputed
facts, which binds this court, the answer sought to be elicited
through written interrogatories, therefore, are entirely irrelevant,
aside from having been filed way out of time.
WHEREFORE, premises considered, this court, implements the
decision of the Supreme Court dated September 4, 1992 which
mandates that:
"xxx and Civil Case No. 51203 is reinstated only to determine that
portion which belongs to petitioner and to annul the sale with
regard to said portion."
In order to enforce such mandate of the Supreme Court, this court
orders that:
a. The auction sale of the five (5) parcels of land and all prior and
subsequent proceedings in relation thereto are declared null and
void.
b. Transfer Certificate of Title No. 6509 in the name of defendant
Valente Raymundo is also declared null and void, and the Register
of Deeds of Rizal, Pasig City, is ordered to issue a new one in the
name of the deceased Marcelo Suarez or to reinstate Transfer
Certificate of Title No. 30680 in the name of Marcelo Suarez.

c. Teofista Suarez is ordered to reimburse the amount


of P94,170.00, plus legal interest from the date of issuance of this
order, and failing which, the portion of the estate of Marcelo
Suarez belonging to the surviving spouse, Teofista Suarez, may be
levied on execution.
d. [Herein respondents], including Teofista Suarez, are hereby
ordered to submit to this court any evidence showing settlement
of the estate of the deceased, Marcelo Suarez, in order for this
court to determine the portion in the estate which belongs to
Teofista Suarez.
Therein defendants, including petitioner Valente, filed a Motion for
Reconsideration which the trial court denied on May 29, 1996.
3. Order dated September 10, 1996, issued by Judge Santos
denying the appeal interposed by petitioner Valente from the
January 22, 1996 and May 29, 1996 Orders, ruling that these are
interlocutory orders, and, therefore, not appealable. 23
4. Order dated April 8, 1999, issued by Pairing Judge Santiago
Estrella which declared, thus:
Considering that counsel for the plaintiffs does not have the birth
certificates of the heirs of the plaintiff to prove their affiliation
with the deceased which is one of the matters written in the
decision of the higher court which must be complied with, and in
order for counsel for the plaintiffs [herein respondents] to have
the opportunity to complete all documentary evidence and in
view of abbreviating the proceedings and as prayed for, today's
scheduled pre-trial is re-set for the last time to May 19, 1999 at
8:30 a.m.
In this connection, counsel for plaintiffs [herein respondents] is
advised to secure all the documentary evidence she needs
material to this case which will expedite the disposition of this
case.24

This last Order and therein defendants' Urgent Motion spawned


another contentious issue between the parties. In this connection,
Judge Estrella issued an Order25 requiring the parties to file their
respective position papers due to the "divergent views on the
nature of the hearing that should be conducted in compliance
with" our decision in Suarez. Both parties duly filed their position
papers, with herein respondents attaching thereto a copy of the
Extrajudicial Settlement of Estate executed by the heirs of
Marcelo Suarez in 1957.
In resolving this latest crossfire between the parties, the RTC,
Branch 67, issued an Order dated January 11, 2000, which reads,
in part:
This Court is of the view that the Honorable Supreme Court is not
a trier of facts, precisely it directed that the records of this case
be remanded to the Regional Trial Court for further proceedings.
xxxx
It is a matter of record that there was no trial on the merits
completed in the Regional Trial Court. xxx The Supreme Court
reversed the judgment of the Court of Appeals and ordered the
reinstatement of Civil Case No. 51203. Naturally, there was no
trial on the merits before this Court that allowed the parties to
adduce evidence to establish their respective claims in the
plaintiffs' [herein respondents] complaint and in the defendants'
[including petitioner Valente] counter-claim, respectively. It is in
this context that the Honorable Supreme Court reinstated the
"action [of herein respondents] to annul the auction sale to
protect their [herein respondents] own interest.

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

Consequently, herein respondents filed a petition


for certiorari before the CA alleging grave abuse of discretion in
the trial court's order dismissing Civil Case No. 51203 without
prejudice. All the defendants in the trial court were impleaded as
private respondents in the petition. Yet, curiously, only petitioner
Valente filed a Comment thereto. The appellate court granted the
petition, recalled and set aside RTC, Branch 67's Orders dated
January 11, 2000 and March 14, 2000, and reinstated Judge
Santos' Orders dated May 29, 1996 and September 6, 1996. It
disposed of the petition, thus:
We agree with [herein respondents].
On September 4, 1992, the Supreme Court (G.R. No. 94918)
reversed the decision of the Court of Appeals and mandates that
Civil Case No. 51203 be reinstated in order to determine the
portion in the estate which belongs to Teofista Suarez. The sale of
the parcels of land was declared null and void. Necessarily, the
title (TCT No. 5809) in the name of respondents was also declared
null and void. xxx
xxxx
Hon. Apolinario Santos of Br. 67, Regional Trial Court, Pasig City,
on January 22, 1996 and on motion of [herein respondents],
issued an order to execute/enforce the decision of the Supreme
Court xxx.
xxxx
[Petitioner Valente, Violeta, Virginia and Maria Concepcion] filed a
notice of appeal on the order of Judge Santos. The appeal, on
motion of [herein respondents] was denied on September 10,
1996. Obviously, the decision of the Supreme Court had become
final and executory. Likewise, both orders of Judge Santos dated
May 29, 1996 denying the motion for reconsideration and the
denial of the notice of appeal dated September 6, 1996 had also
become final and executory.
The denial of petitioner Valente's Motion for Reconsideration
prompted the filing of this present petition for certiorari.

Petitioner Valente posits that the appellate court committed grave


abuse of discretion in recalling and setting aside the Orders of
Judge Estrella and reinstating those of Judge Santos because:
1. The CA ruled that the Orders dated May 29, 1996 and
September 6, 1996 issued by Judge Santos were final and
executory, and yet the latter did not allow an appeal to be taken
therefrom ratiocinating that the questioned orders were
interlocutory, and therefore, not appealable; and
2. The CA ignored and violated the Supreme Court's ruling in Heirs
of Yaptinchay v. Del Rosario28 which held that a declaration of
heirship must be made in a special proceeding and not in a civil
action.
We find the petition bereft of merit.
At the outset, we note that petitioner Valente incorrectly filed a
petition for certiorari to appeal the CA decision. Petitioner should
have filed a petition for review on certiorari under Rule 45 of the
Rules of Court. Simply imputing in a petition that the decision
sought to be reviewed is tainted with grave abuse of discretion
does not magically transform a petition into a special civil action
for certiorari. The CA decision disposed of the merits of a special
civil action, an original petition, filed thereat by herein
respondents. That disposition is a final and executory order,
appealable to, and may be questioned before, this Court by
persons aggrieved thereby, such as petitioner Valente, via Rule
45.
On this score alone, the petition should have been dismissed
outright. However, we have disregarded this procedural flaw and
now resolve this case based on the merits or lack thereof.
Petitioner asseverates that the assailed CA ruling "is unfair and it
amounts to a trickery to prevent an appeal against a final order
by claiming that the appealed order is merely interlocutory and
later maintain that the same order has become final after
declaring it to be interlocutory."

We reject petitioner's paltry contention. Petitioner apparently


does not comprehend the distinction between an interlocutory
order which is final and executory, and a final order which
disposes of the controversy or case; much less, understand the
available remedies therefrom.
We have defined an interlocutory order as referring to something
between the commencement and the end of the suit which
decides some point or matter but it is not the final decision on the
whole controversy.29 It does not terminate or finally dismiss or
finally dispose of the case, but leaves something to be done by
the court before the case is finally decided on the merits. 30 Upon
the other hand, a final order is one which leaves to the court
nothing more to do to resolve the case. 31
On more than one occasion, we laid down the test to ascertain
whether an order is interlocutory or final i.e., "Does it leave
something to be done in the trial court with respect to the merits
of the case?" If it does, it is interlocutory; if it does not, it is final.
The key test to what is interlocutory is when there is something
more to be done on the merits of the case. 32 The Orders dated
May 29, 1996 and September 6, 1996 issued by Judge Santos are
interlocutory, and therefore, not appealable, as they leave
something more to be done on the merits of the case. In fact, in
paragraph (d) of Judge Santos' Order dated May 29, 1996, herein
respondents were directed to submit evidence showing
settlement of the estate of the deceased Marcelo Sr.
Contrary to petitioner Valente's stance, there is no trickery or
chicanery in the CA's distinction between an interlocutory and a
final order. Indeed, as ruled by the CA, the RTC Order denying
petitioner Valente's Notice of Appeal attained finality when he
failed to file a petition for certiorariunder Rule 65 of the Rules of
Court.
We cannot overemphasize the rule that the correct identification
of the nature of an assailed order determines the remedies
available to an aggrieved party. The old Rules of Court in Section
2, Rule 41 reads, thus:

SEC. 2. Judgments or orders subject to appeal.-Only final


judgments or orders shall be subject to appeal. No interlocutory or
incidental judgment or order shall stay the progress of an action,
nor shall it be the subject of appeal until final judgment or order is
rendered for one party or the other.
xxxx
With the advent of the 1997 Rules of Civil Procedure, Section 1,
Rule 41 now provides for the appropriate remedy to be taken from
an interlocutory order, thus:
SECTION 1. Subject of appeal. - An appeal may be taken from a
judgment or final order that completely disposes of the case, or of
a particular matter therein when declared by these Rules to be
appealable.
No appeal may be taken from:
xxx
(c) An interlocutory order;
xxx
In all the above instances where the judgment or final order is not
appealable, the aggrieved party may file an appropriate special
civil action under Rule 65.
Clearly, the denial of therein defendants' (including petitioner
Valente's) appeal from the Orders dated May 29, 1996 and
September 6, 1996 was in order. Thus, the CA decision affirming
the RTC's denial was correct.
Further, on this crucial distinction as applied to this case,
petitioner Valente filed a petition forcertiorari from the CA
decision in CA-G.R. SP No. 58090, which is not an interlocutory
order. It is a final order which completely disposed of the merits of
the case with nothing more left to be done therein. The correct
and available remedy available to petitioner Valente was, as
previously discussed, a petition for review on certiorari under Rule
45 of the Rules of Court.

In fine, petitioner Valente erroneously sought relief through


reversed remedies. He tried to appeal the interlocutory orders of
the RTC which are unappealable. Thus, the RTC properly denied
his Notice of Appeal, and the CA correctly upheld the RTC. He
should have filed a petition for certiorari; under Rule 65. On the
other hand, from the final order of the CA, he comes before this
Court on a petition for certiorari under Rule 65, when the proper
remedy is an appeal by certiorari under Rule 45.
In the recent case of Jan-Dec Construction Corporation v. Court of
Appeals33 we ruled in this wise:
As a rule, the remedy from a judgment or final order of the CA is
appeal via petition for review under Rule 45 of the Rules.
Under Rule 45, decisions, final orders or resolutions of the CA in
any case, i.e., regardless of the nature of the action or
proceedings involved, may be appealed to the Court by filing a
petition for review, which would be but a continuation of the
appellate process over the original case. It seeks to correct errors
of judgment committed by the court, tribunal, or officer. In
contrast, a special civil action for certiorari under Rule 65 is an
independent action based on the specific grounds therein
provided and proper only if there is no appeal or any plain,
speedy and adequate remedy in the ordinary course of law. It is
an extraordinary process for the correction of errors of jurisdiction
and cannot be availed of as a substitute for the lost remedy of an
ordinary appeal.
Independently of this procedural infirmity, even on the merits of
the case, the petition does not fare otherwise. It must be
dismissed for lack of merit.
Petitioner Valente insists that, following our ruling in Heirs of
Yaptinchay v. Del Rosario,34 herein respondents must first be
declared heirs of Marcelo Sr. before they can file an action to
annul the judicial sale of what is, undisputedly, conjugal property
of Teofista and Marcelo Sr.
We disagree. Our ruling in Heirs of Yaptinchay is not applicable.

Herein respondents' status as legitimate children of Marcelo Sr.


and Teofista and thus, Marcelo Sr.'s heirs has been firmly
established, and confirmed by this Court in Suarez v. Court of
Appeals.35 True, this Court is not a trier of facts, 36 but as the final
arbiter of disputes,37 we found and so ruled that herein
respondents are children, and heirs of their deceased father,
Marcelo Sr. This having been settled, it should no longer have
been a litigated issue when we ordered a remand to the lower
court. In short, petitioner Valente's, Violeta's, Virginia's, and Maria
Concepcion's representation in the RTC that our ruling in Suarez
required herein respondents to present evidence of their affiliation
with the deceased, Marcelo Sr., is wrong.
As was set forth in the dispositive portion of Suarez, "Civil Case
No. 51203 is reinstated only to determine that portion which
belongs to [herein respondents] and to annul the sale with regard
to said portion." There is clearly no intimation in our decision for
the RTC to have to determine an already settled issue i.e., herein
respondents' status as heirs of Marcelo Sr.
Moreover, petitioner Valente cannot assail, directly or indirectly,
the status of herein respondents as legitimate children of Marcelo
Sr. and Teofista, and likewise demand that herein respondents
first prove their filiation to Marcelo Sr. The following records bear
out Marcelo, Sr.'s and Teofista's paternity of herein respondents,
and the latter's status as legitimate children:
1. The CA decision in CA-G.R. SP Nos. 10646 to 10649 where
Teofista, along with herein respondents, questioned the RTC,
Branch 151's Orders dated October 10, 1984 and October 14,
1986. Although the CA ruled against Teofista and herein
respondents, it explicitly recognized the latter's status as
legitimate children of Teofista and Marcelo Sr.; and 38

2. The CA decision in CA-G.R. SP No. 20320 which incorrectly ruled


that herein respondents were, as children of Teofista, merely
successors-in-interest of the latter to the property and by virtue
thereof, bound by the judgment in Civil Case Nos. 21376 to 21379
consistent with the doctrine of res judicata.39 We subsequently
reversed this ruling on the wrong application of res judicata in the
conclusive case of Suarez. We retained and affirmed, however,
the CA's factual finding of herein respondents' status as heirs of
Marcelo Sr. We categorically held therein that "the proprietary
interest of [herein respondents] in the levied and auctioned
[properties] is different from and adverse to that of [Teofista].
[Herein respondents] became co-owners of the property not
because of [Teofista] but through their own right as children of
their deceased father [, Marcelo Sr.]."
Clearly, herein respondents' long possessed status of legitimate
children of Marcelo Sr. and Teofista cannot be indirectly or directly
attacked by petitioner Valente in an action to annul a judicial sale.
Articles 262,40 263,41 265 and 26642 of the Civil Code, the
applicable law at the time of Marcelo's death, support the
foregoing conclusion, to wit:
Art. 262. The heirs of the husband may impugn the legitimacy of
the child only in the following cases:
(1) If the husband should die before the expiration of the period
fixed for bringing his action;
(2) If the husband should die after the filing of the complaint,
without having desisted from the same;
(3) If the child was born after the death of the husband.
Art. 263. The action to impugn the legitimacy of the child shall be
brought within one year from the recording of birth in the Civil
Register, if the husband should be in the same place, or in a
proper case, any of his heirs.
If he or his heirs are absent, the period shall be eighteen months
if they should reside in the Philippines; and two years if abroad. If
the birth of the child has been concealed, the term shall be
counted from the discovery of the fraud.

Art. 265. The filiation of legitimate children is proved by the


record of birth appearing in the Civil Register, or by an authentic
document or a final judgment.
Art. 266. In the absence of the titles indicated in the preceding
article, the filiation shall be proved by the continuous possession
of status of a legitimate child.
In Heirs of Yaptinchay, the complaint for annulment and/or
declaration of nullity of certain TCT's was dismissed for failure of
the petitioners to demonstrate "any proof or even a semblance of
it" that they had been declared the legal heirs of the deceased
couple, the spouses Yaptinchay. In stark contrast, the records of
this case reveal a document, an Extrajudicial Settlement of
Marcelo Sr.'s estate, which explicitly recognizes herein
respondents as Marcelo Sr.'s legitimate children and heirs. The
same document settles and partitions the estate of Marcelo Sr.
specifying Teofista's paraphernal properties, and separates the
properties she owns in common with her children, herein
respondents. Plainly, there is no need to re-declare herein
respondents as heirs of Marcelo Sr., and prolong this case
interminably.
Petitioner Valente, along with Violeta, Virginia and Maria
Concepcion, became owners of the subject properties only by
virtue of an execution sale to recover Teofista's judgment
obligation. This judgment obligation is solely Teofista's, and
payment therefor cannot be made through an execution sale of
properties not absolutely owned by her. These properties were
evidently conjugal properties and were, in fact, even titled in the
name of Marcelo, Sr. married to Teofista. Thus, upon Marcelo Sr.'s
death, by virtue of compulsory succession, Marcelo Sr.'s share in
the conjugal partnership was transmitted by operation of law to
his compulsory heirs.

Compulsory succession is a distinct kind of succession, albeit not


categorized as such in Article 77843of the Civil Code. It reserves a
portion of the net estate of the decedent in favor of certain heirs,
or group of heirs, or combination of heirs, prevailing over all kinds
of succession.44 The portion that is so reserved is the legitime.
Article 886 of the Civil Code defines legitime as "that part of the
testator's property which he cannot dispose of because the law
has reserved it for certain heirs who are, therefore, called
compulsory heirs." Herein respondents are primary compulsory
heirs,45 excluding secondary compulsory heirs,46 and preferred
over concurring compulsory heirs in the distribution of the
decedent's estate.47
Even without delving into the Extrajudicial Settlement of Marcelo
Sr.'s estate in 1957, it must be stressed that herein respondents'
rights to the succession vested from the moment of their father's
death.48 Herein respondents' ownership of the subject properties
is no longer inchoate; it became absolute upon Marcelo's death,
although their respective shares therein remained pro indiviso.
Ineluctably, at the time the subject properties were sold on
execution sale to answer for Teofista's judgment obligation, the
inclusion of herein respondents' share therein was null and void.
In fine, Teofista's ownership over the subject properties is not
absolute. Significantly, petitioner Valente does not even attempt
to dispute the conjugal nature of the subject properties. Since
Teofista owns only a portion of the subject properties, only that
portion could have been, and was actually, levied upon and sold
on auction by the provincial sheriff of Rizal. Thus, a separate
declaration of heirship by herein respondents is not necessary to
annul the judicial sale of their share in the subject properties.
We note the recent case of Portugal v. Portugal-Beltran,49 where
we scrutinized our rulings in Heirs of Yaptinchay and the cited
cases of Litam v. Rivera50 and Solivio v. Court of
Appeals,51 and Guilas v. CFI Judge of Pampanga52 cited in Solivio.
We ruled thus:

The common doctrine in Litam, Solivio and Guilas in which


the adverse parties are putative heirs to the estate of a decedent
or parties to the special proceedings for its settlement is that if
the special proceedings are pending, or if there are no special
proceedings filed but there is, under the circumstances of the
case, a need to file one, then the determination of, among other
issues, heirship should be raised and settled in said special
proceedings. Where special proceedings had been instituted but
had been finally closed and terminated, however, or if a putative
heirs has lost the right to have himself declared in the special
proceedings as co-heir and he can no longer ask for its reopening, then an ordinary civil action can be filed for his
declaration as heir in order to bring about the annulment of the
partition or distribution or adjudication of a property or properties
belonging to the estate of the deceased.
In the case at bar, respondent, believing rightly or wrongly that
she was the sole heir to Portugal's estate, executed on February
15, 1988 the questioned Affidavit of Adjudication under the
second sentence of Rule 74, Section of the Revised Rules of Court.
Said rule is an exception to the general rule that when a person
dies leaving property, it should be judicially administered and the
competent court should appoint a qualified administrator, in the
order established in Sec. 6, Rule 78 in case the deceased left no
will, or in case he did, he failed to name an executor therein.
xxx
It appearing, however, that in the present case the only property
of the intestate estate of Portugal is the Caloocan parcel of land,
to still subject it, under the circumstances of the case, to a special
proceeding which could be long, hence, not expeditious, just to
establish the status of petitioners as heirs is not only impractical;
it is burdensome to the estate with the costs and expenses of an
administration proceedings. And it is superfluous in light of the
fact that the parties to the civil case-subject of the present case,
could and had already in fact presented evidence before the trial
court which assumed jurisdiction over the case upon the issues it
defined during pre-trial.

In fine, under the circumstances of the present case, there being


no compelling reason to still subject Portugal's estate to
administration proceedings since a determination of petitioners'
status as heirs could be achieved in the civil case filed by
petitioners xxx.53
All told, under the circumstances, in addition to the already
settled status of herein respondents as heirs of Marcelo Sr., there
is no need to dismiss Civil Case No. 51203 and require herein
respondents to institute a separate special proceeding for a
declaration of their heirship.
WHEREFORE, premises considered, the petition is DENIED. The
Decision of the Court of Appeals in CA-G.R. SP No. 58090
is AFFIRMED. The Orders dated May 29, 1996 and September 6,
1996 issued by Judge Santos are REINSTATED. Costs against the
petitioner.
SO ORDERED.

G.R. No. 137548


September 3, 2007 HEIRS OF THE LATE
DOMINGO N. NICOLAS, petitioners,
vs.
METROPOLITAN BANK & TRUST COMPANY, respondent.

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.

It is basic that after consolidation of title in the buyers name for


failure of the mortgagor to redeem, the writ of possession
becomes a matter of right3 and its issuance to a purchaser in an
extra-judicial foreclosure is merely a ministerial
function.4 However, considering the circumstances obtaining in
this case and following our ruling in Rivero de Ortega, earlier
cited, we hold that such writ of possession should apply only to
the share of Josefa as may be determined in Civil Case No. Q-9834312 or in any other proceeding that may be instituted by
petitioners for the purpose of settling the undivided estate of
Domingo Nicolas.
WHEREFORE, we GRANT the petition. The assailed Decision of the
Court of Appeals in CA-G.R. SP No. 49926 isMODIFIED in the
sense that the writ of possession issued by the RTC, Branch 77,
Quezon City in LRC Case No. Q-8019(96) shall apply only to such
portion of the lots pertaining to Josefa Nicolas as may be
determined in Civil Case No. Q-98-34312 or in any other proper
proceeding which petitioners may file.
SO ORDERED.
II.

Testamentary/ Testate Succession

A. Characteristics & Construction of Wills, Testamentary


Capacity & Intent (Arts. 783-803)
G.R. No. 82027 March 29, 1990
ROMARICO G. VITUG, petitioner,
vs.
THE HONORABLE COURT OF APPEALS and ROWENA FAUSTINOCORONA, respondents.
Rufino B. Javier Law Office for petitioner.
Quisumbing, Torres & Evangelista for private respondent.

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:

We hereby agree with each other and with the BANK OF


AMERICAN NATIONAL TRUST AND SAVINGS ASSOCIATION
(hereinafter referred to as the BANK), that all money now or
hereafter deposited by us or any or either of us with the BANK in
our joint savings current account shall be the property of all or
both of us and shall be payable to and collectible or withdrawable
by either or any of us during our lifetime, and after the death of
either or any of us shall belong to and be the sole property of the
survivor or survivors, and shall be payable to and collectible or
withdrawable by such survivor or survivors.
We further agree with each other and the BANK that the receipt or
check of either, any or all of us during our lifetime, or the receipt
or check of the survivor or survivors, for any payment or
withdrawal made for our above-mentioned account shall be valid
and sufficient release and discharge of the BANK for such
payment or withdrawal. 5
The trial courts 6 upheld the validity of this agreement and
granted "the motion to sell some of the estate of Dolores L. Vitug,
the proceeds of which shall be used to pay the personal funds of
Romarico Vitug in the total sum of P667,731.66 ... ."7
On the other hand, the Court of Appeals, in the petition for
certiorari filed by the herein private respondent, held that the
above-quoted survivorship agreement constitutes a
conveyance mortis causa which "did not comply with the
formalities of a valid will as prescribed by Article 805 of the Civil
Code," 8 and secondly, assuming that it is a mere donation inter
vivos, it is a prohibited donation under the provisions of Article
133 of the Civil Code. 9
The dispositive portion of the decision of the Court of Appeals
states:

WHEREFORE, the order of respondent Judge dated November 26,


1985 (Annex II, petition) is hereby set aside insofar as it granted
private respondent's motion to sell certain properties of the estate
of Dolores L. Vitug for reimbursement of his alleged advances to
the estate, but the same order is sustained in all other respects.
In addition, respondent Judge is directed to include provisionally
the deposits in Savings Account No. 35342-038 with the Bank of
America, Makati, in the inventory of actual properties possessed
by the spouses at the time of the decedent's death. With costs
against private respondent. 10
In his petition, Vitug, the surviving spouse, assails the appellate
court's ruling on the strength of our decisions inRivera v. People's
Bank and Trust Co. 11 and Macam v. Gatmaitan 12 in which we
sustained the validity of "survivorship agreements" and
considering them as aleatory contracts. 13
The petition is meritorious.
The conveyance in question is not, first of all, one of mortis
causa, which should be embodied in a will. A will has been defined
as "a personal, solemn, revocable and free act by which a
capacitated person disposes of his property and rights and
declares or complies with duties to take effect after his
death." 14 In other words, the bequest or device must pertain to
the testator. 15 In this case, the monies subject of savings account
No. 35342-038 were in the nature of conjugal funds In the case
relied on, Rivera v. People's Bank and Trust Co., 16 we rejected
claims that a survivorship agreement purports to deliver one
party's separate properties in favor of the other, but simply, their
joint holdings:
xxx xxx xxx

... Such conclusion is evidently predicated on the assumption that


Stephenson was the exclusive owner of the funds-deposited in the
bank, which assumption was in turn based on the facts (1) that
the account was originally opened in the name of Stephenson
alone and (2) that Ana Rivera "served only as housemaid of the
deceased." But it not infrequently happens that a person deposits
money in the bank in the name of another; and in the instant case
it also appears that Ana Rivera served her master for about
nineteen years without actually receiving her salary from him. The
fact that subsequently Stephenson transferred the account to the
name of himself and/or Ana Rivera and executed with the latter
the survivorship agreement in question although there was no
relation of kinship between them but only that of master and
servant, nullifies the assumption that Stephenson was the
exclusive owner of the bank account. In the absence, then, of
clear proof to the contrary, we must give full faith and credit to
the certificate of deposit which recites in effect that the funds in
question belonged to Edgar Stephenson and Ana Rivera; that they
were joint (and several) owners thereof; and that either of them
could withdraw any part or the whole of said account during the
lifetime of both, and the balance, if any, upon the death of either,
belonged to the survivor. 17
xxx xxx xxx
In Macam v. Gatmaitan, 18 it was held:
xxx xxx xxx

This Court is of the opinion that Exhibit C is an aleatory contract


whereby, according to article 1790 of the Civil Code, one of the
parties or both reciprocally bind themselves to give or do
something as an equivalent for that which the other party is to
give or do in case of the occurrence of an event which is uncertain
or will happen at an indeterminate time. As already stated,
Leonarda was the owner of the house and Juana of the Buick
automobile and most of the furniture. By virtue of Exhibit C, Juana
would become the owner of the house in case Leonarda died first,
and Leonarda would become the owner of the automobile and the
furniture if Juana were to die first. In this manner Leonarda and
Juana reciprocally assigned their respective property to one
another conditioned upon who might die first, the time of death
determining the event upon which the acquisition of such right by
the one or the other depended. This contract, as any other
contract, is binding upon the parties thereto. Inasmuch as
Leonarda had died before Juana, the latter thereupon acquired the
ownership of the house, in the same manner as Leonarda would
have acquired the ownership of the automobile and of the
furniture if Juana had died first. 19
xxx xxx xxx
There is no showing that the funds exclusively belonged to one
party, and hence it must be presumed to be conjugal, having
been acquired during the existence of the marita. relations. 20
Neither is the survivorship agreement a donation inter vivos, for
obvious reasons, because it was to take effect after the death of
one party. Secondly, it is not a donation between the spouses
because it involved no conveyance of a spouse's own properties
to the other.

It is also our opinion that the agreement involves no modification


petition of the conjugal partnership, as held by the Court of
Appeals, 21 by "mere stipulation" 22 and that it is no "cloak" 23 to
circumvent the law on conjugal property relations. Certainly, the
spouses are not prohibited by law to invest conjugal property,
say, by way of a joint and several bank account, more commonly
denominated in banking parlance as an "and/or" account. In the
case at bar, when the spouses Vitug opened savings account No.
35342-038, they merely put what rightfully belonged to them in a
money-making venture. They did not dispose of it in favor of the
other, which would have arguably been sanctionable as a
prohibited donation. And since the funds were conjugal, it can not
be said that one spouse could have pressured the other in placing
his or her deposits in the money pool.
The validity of the contract seems debatable by reason of its
"survivor-take-all" feature, but in reality, that contract imposed a
mere obligation with a term, the term being death. Such
agreements are permitted by the Civil Code. 24
Under Article 2010 of the Code:
ART. 2010. By an aleatory contract, one of the parties or both
reciprocally bind themselves to give or to do something in
consideration of what the other shall give or do upon the
happening of an event which is uncertain, or which is to occur at
an indeterminate time.
Under the aforequoted provision, the fulfillment of an aleatory
contract depends on either the happening of an event which is (1)
"uncertain," (2) "which is to occur at an indeterminate time." A
survivorship agreement, the sale of a sweepstake ticket, a
transaction stipulating on the value of currency, and insurance
have been held to fall under the first category, while a contract
for life annuity or pension under Article 2021, et sequentia, has
been categorized under the second. 25 In either case, the element
of risk is present. In the case at bar, the risk was the death of one
party and survivorship of the other.
However, as we have warned:
xxx xxx xxx

But although the survivorship agreement is per se not contrary to


law its operation or effect may be violative of the law. For
instance, if it be shown in a given case that such agreement is a
mere cloak to hide an inofficious donation, to transfer property in
fraud of creditors, or to defeat the legitime of a forced heir, it may
be assailed and annulled upon such grounds. No such vice has
been imputed and established against the agreement involved in
this case. 26
xxx xxx xxx
There is no demonstration here that the survivorship agreement
had been executed for such unlawful purposes, or, as held by the
respondent court, in order to frustrate our laws on wills,
donations, and conjugal partnership.
The conclusion is accordingly unavoidable that Mrs. Vitug having
predeceased her husband, the latter has acquired upon her death
a vested right over the amounts under savings account No.
35342-038 of the Bank of America. Insofar as the respondent
court ordered their inclusion in the inventory of assets left by Mrs.
Vitug, we hold that the court was in error. Being the separate
property of petitioner, it forms no more part of the estate of the
deceased.
WHEREFORE, the decision of the respondent appellate court,
dated June 29, 1987, and its resolution, dated February 9, 1988,
are SET ASIDE.
No costs.
SO ORDERED.
G.R. No. 174489

April 11, 2012

ANTONIO B. BALTAZAR, SEBASTIAN M. BALTAZAR, ANTONIO L. MANGALINDAN, ROSIE


M. MATEO, NENITA A. PACHECO, VIRGILIO REGALA, JR., and RAFAEL
TITCO, Petitioners,
vs.
LORENZO LAXA, Respondent.

DECISION
DEL CASTILLO, J.:
It is incumbent upon those who oppose the probate of a will to
clearly establish that the decedent was not of sound and
disposing mind at the time of the execution of said will.
Otherwise, the state is duty-bound to give full effect to the wishes
of the testator to distribute his estate in the manner provided in
his will so long as it is legally tenable. 1
Before us is a Petition for Review on 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

[Sixth] - Should other properties of mine may be discovered aside


from the properties mentioned in this last will and testament, I am
also bequeathing and giving the same to the spouses Lorenzo R.
Laxa and Corazon F. Laxa and their two children and I also
command them to offer masses yearly for the repose of my soul
and that of D[]a Nicomeda Regala, Epifania Regala and their
spouses and with respect to the fishpond situated at San Antonio,
I likewise command to fulfill the wishes of D[]a Nicomeda Regala
in accordance with her testament as stated in my testament. x x
x12
The filial relationship of Lorenzo with Paciencia remains
undisputed. Lorenzo is Paciencias nephew whom she treated as
her own son. Conversely, Lorenzo came to know and treated
Paciencia as his own mother.13Paciencia lived with Lorenzos
family in Sasmuan, Pampanga and it was she who raised and
cared for Lorenzo since his birth. Six days after the execution of
the Will or on September 19, 1981, Paciencia left for the United
States of America (USA). There, she resided with Lorenzo and his
family until her death on January 4, 1996.
In the interim, the Will remained in the custody of Judge Limpin.
More than four years after the death of Paciencia or on April 27,
2000, Lorenzo filed a petition14 with the RTC of Guagua, Pampanga
for the probate of the Will of Paciencia and for the issuance of
Letters of Administration in his favor, docketed as Special
Proceedings No. G-1186.

There being no opposition to the petition after its due publication,


the RTC issued an Order on June 13, 200015allowing Lorenzo to
present evidence on June 22, 2000. On said date, Dra. Limpin
testified that she was one of the instrumental witnesses in the
execution of the last will and testament of Paciencia on
September 13, 1981.16The Will was executed in her fathers (Judge
Limpin) home office, in her presence and of two other witnesses,
Francisco and Faustino.17 Dra. Limpin positively identified the Will
and her signatures on all its four pages. 18 She likewise positively
identified the signature of her father appearing
thereon.19 Questioned by the prosecutor regarding Judge Limpins
present mental fitness, Dra. Limpin testified that her father had a
stroke in 1991 and had to undergo brain surgery. 20 The judge can
walk but can no longer talk and remember her name. Because of
this, Dra. Limpin stated that her father can no longer testify in
court.21
The following day or on June 23, 2000, petitioner Antonio Baltazar
(Antonio) filed an opposition22 to Lorenzos petition. Antonio
averred that the properties subject of Paciencias Will belong to
Nicomeda Regala Mangalindan, his predecessor-in-interest; hence,
Paciencia had no right to bequeath them to Lorenzo. 23
Barely a month after or on July 20, 2000, Antonio, now joined by
petitioners Sebastian M. Baltazar, Virgilio Regala, Jr., Nenita A.
Pacheco, Felix B. Flores, Rafael Titco, Rosie M. Mateo (Rosie) and
Antonio L. Mangalindan filed a Supplemental
Opposition24 contending that Paciencias Will was null and void
because ownership of the properties had not been transferred
and/or titled to Paciencia before her death pursuant to Article
1049, paragraph 3 of the Civil Code.25 Petitioners also opposed
the issuance of Letters of Administration in Lorenzos favor
arguing that Lorenzo was disqualified to be appointed as such, he
being a citizen and resident of the USA.26Petitioners prayed that
Letters of Administration be instead issued in favor of Antonio. 27

Later still on September 26, 2000, petitioners filed an Amended


Opposition28 asking the RTC to deny the probate of Paciencias Will
on the following grounds: the Will was not executed and attested
to in accordance with the requirements of the law; that Paciencia
was mentally incapable to make a Will at the time of its
execution; that she was forced to execute the Will under duress or
influence of fear or threats; that the execution of the Will had
been procured by undue and improper pressure and influence by
Lorenzo or by some other persons for his benefit; that the
signature of Paciencia on the Will was forged; that assuming the
signature to be genuine, it was obtained through fraud or trickery;
and, that Paciencia did not intend the document to be her Will.
Simultaneously, petitioners filed an Opposition and
Recommendation29 reiterating their opposition to the appointment
of Lorenzo as administrator of the properties and requesting for
the appointment of Antonio in his stead.
On January 29, 2001, the RTC issued an Order30 denying the
requests of both Lorenzo and Antonio to be appointed
administrator since the former is a citizen and resident of the USA
while the latters claim as a co-owner of the properties subject of
the Will has not yet been established.
Meanwhile, proceedings on the petition for the probate of the Will
continued. Dra. Limpin was recalled for cross-examination by the
petitioners. She testified as to the age of her father at the time
the latter notarized the Will of Paciencia; the living arrangements
of Paciencia at the time of the execution of the Will; and the lack
of photographs when the event took place. 31
Aside from Dra. Limpin, Lorenzo and Monico Mercado (Monico)
also took the witness stand. Monico, son of Faustino, testified on
his fathers condition. According to him his father can no longer
talk and express himself due to brain damage. A medical
certificate was presented to the court to support this allegation. 32

For his part, Lorenzo testified that: from 1944 until his departure
for the USA in April 1980, he lived in Sasmuan, Pampanga with his
family and his aunt, Paciencia; in 1981 Paciencia went to the USA
and lived with him and his family until her death in January 1996;
the relationship between him and Paciencia was like that of a
mother and child since Paciencia took care of him since birth and
took him in as an adopted son; Paciencia was a spinster without
children, and without brothers and sisters; at the time of
Paciencias death, she did not suffer from any mental disorder and
was of sound mind, was not blind, deaf or mute; the Will was in
the custody of Judge Limpin and was only given to him after
Paciencias death through Faustino; and he was already residing in
the USA when the Will was executed.33 Lorenzo positively
identified the signature of Paciencia in three different documents
and in the Will itself and stated that he was familiar with
Paciencias signature because he accompanied her in her
transactions.34 Further, Lorenzo belied and denied having used
force, intimidation, violence, coercion or trickery upon Paciencia
to execute the Will as he was not in the Philippines when the
same was executed.35 On cross-examination, Lorenzo clarified
that Paciencia informed him about the Will shortly after her arrival
in the USA but that he saw a copy of the Will only after her
death.36
As to Francisco, he could no longer be presented in court as he
already died on May 21, 2000.
For petitioners, Rosie testified that her mother and Paciencia were
first cousins.37 She claimed to have helped in the household
chores in the house of Paciencia thereby allowing her to stay
therein from morning until evening and that during the period of
her service in the said household, Lorenzos wife and his children
were staying in the same house.38 She served in the said
household from 1980 until Paciencias departure for the USA on
September 19, 1981.39

On September 13, 1981, Rosie claimed that she saw Faustino


bring "something" for Paciencia to sign at the latters
house.40 Rosie admitted, though, that she did not see what that
"something" was as same was placed inside an
envelope.41 However, she remembered Paciencia instructing
Faustino to first look for money before she signs them. 42 A few
days after or on September 16, 1981, Paciencia went to the house
of Antonios mother and brought with her the said
envelope.43 Upon going home, however, the envelope was no
longer with Paciencia.44Rosie further testified that Paciencia was
referred to as "magulyan" or "forgetful" because she would
sometimes leave her wallet in the kitchen then start looking for it
moments later.45 On cross examination, it was established that
Rosie was neither a doctor nor a psychiatrist, that her conclusion
that Paciencia was "magulyan" was based on her personal
assessment,46 and that it was Antonio who requested her to
testify in court.47

In his direct examination, Antonio stated that Paciencia was his


aunt.48 He identified the Will and testified that he had seen the
said document before because Paciencia brought the same to his
mothers house and showed it to him along with another
document on September 16, 1981.49 Antonio alleged that when
the documents were shown to him, the same were still
unsigned.50 According to him, Paciencia thought that the
documents pertained to a lease of one of her rice lands, 51 and it
was he who explained that the documents were actually a special
power of attorney to lease and sell her fishpond and other
properties upon her departure for the USA, and a Will which would
transfer her properties to Lorenzo and his family upon her
death.52 Upon hearing this, Paciencia allegedly uttered the
following words: "Why will I never [return], why will I sell all my
properties?" Who is Lorenzo? Is he the only [son] of God? I have
other relatives [who should] benefit from my properties. Why
should I die already?"53 Thereafter, Antonio advised Paciencia not
to sign the documents if she does not want to, to which the latter
purportedly replied, "I know nothing about those, throw them
away or it is up to you. The more I will not sign them." 54 After
which, Paciencia left the documents with Antonio. Antonio kept
the unsigned documents
and eventually turned them over to Faustino on September 18,
1981.55
Ruling of the Regional Trial Court
On September 30, 2003, the RTC rendered its Decision56 denying
the petition thus:
WHEREFORE, this court hereby (a) denies the petition dated April
24, 2000; and (b) disallows the notarized will dated September
13, 1981 of Paciencia Regala.
SO ORDERED.57
The trial court gave considerable weight to the testimony of Rosie
and concluded that at the time Paciencia signed the Will, she was
no longer possessed of sufficient reason or strength of mind to
have testamentary capacity.58
Ruling of the Court of Appeals

On appeal, the CA reversed the RTC Decision and granted the


probate of the Will of Paciencia. The appellate court did not agree
with the RTCs conclusion that Paciencia was of unsound mind
when she executed the Will. It ratiocinated that "the state of
being magulyan does not make a person mentally unsound so
[as] to render [Paciencia] unfit for executing a Will." 59 Moreover,
the oppositors in the probate proceedings were not able to
overcome the presumption that every person is of sound mind.
Further, no concrete circumstances or events were given to prove
the allegation that Paciencia was tricked or forced into signing the
Will.60
Petitioners moved for reconsideration 61 but the motion was denied
by the CA in its Resolution62 dated August 31, 2006.
Hence, this petition.
Issues
Petitioners come before this Court by way of Petition for Review
on Certiorari ascribing upon the CA the following errors:
I.
THE HONORABLE COURT OF APPEALS SERIOUSLY ERRED WHEN IT
ALLOWED THE PROBATE OF PACIENCIAS WILL DESPITE
RESPONDENTS UTTER FAILURE TO COMPLY WITH SECTION 11,
RULE 76 OF THE RULES OF COURT;
II.
THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN MAKING
CONCLUSIONS NOT IN ACCORDANCE WITH THE EVIDENCE ON
RECORD;
III.
THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN RULING
THAT PETITIONERS FAILED TO PROVE THAT PACIENCIA WAS NOT
OF SOUND MIND AT THE TIME THE WILL WAS ALLEGEDLY
EXECUTED63
The pivotal issue is whether the authenticity and due execution of
the notarial Will was sufficiently established to warrant its
allowance for probate.
Our Ruling

We deny the petition.


Faithful compliance with the formalities laid down by law is
apparent from the face of the Will.
Courts are tasked to determine nothing more than the extrinsic
validity of a Will in probate proceedings. 64 This is expressly
provided for in Rule 75, Section 1 of the Rules of Court, which
states:
Rule 75
Production of Will. Allowance of Will Necessary.
Section 1. Allowance necessary. Conclusive as to execution. No
will shall pass either real or personal estate unless it is proved
and allowed in the proper court. Subject to the right of appeal,
such allowance of the will shall be conclusive as to its due
execution.
Due execution of the will or its extrinsic validity pertains to
whether the testator, being of sound mind, freely executed the
will in accordance with the formalities prescribed by law. 65 These
formalities are enshrined in Articles 805 and 806 of the New Civil
Code, to wit:
Art. 805. Every will, other than a holographic will, must be
subscribed at the end thereof by the testator himself or by the
testator's name written by some other person in his presence,
and by his express direction, and attested and subscribed by
three or more credible witnesses in the presence of the testator
and of one another.
The testator or the person requested by him to write his name
and the instrumental witnesses of the will, shall also sign, as
aforesaid, each and every page thereof, except the last, on the
left margin, and all the pages shall be numbered correlatively in
letters placed on the upper part of each page.

The attestation shall state the number of pages used upon which
the will is written, and the fact that the testator signed the will
and every page thereof, or caused some other person to write his
name, under his express direction, in the presence of the
instrumental witnesses, and that the latter witnessed and signed
the will and all the pages thereof in the presence of the testator
and of one another.
If the attestation clause is in a language not known to the
witnesses, it shall be interpreted to them.
Art. 806. Every will must be acknowledged before a notary public
by the testator and the witnesses. The notary public shall not be
required to retain a copy of the will, or file another with the Office
of the Clerk of Court.
Here, a careful examination of the face of the Will shows faithful
compliance with the formalities laid down by law. The signatures
of the testatrix, Paciencia, her instrumental witnesses and the
notary public, are all present and evident on the Will. Further, the
attestation clause explicitly states the critical requirement that
the testatrix and her instrumental witnesses signed the Will in the
presence of one another and that the witnesses attested and
subscribed to the Will in the presence of the testator and of one
another. In fact, even the petitioners acceded that the signature
of Paciencia in the Will may be authentic although they question
her state of mind when she signed the same as well as the
voluntary nature of said act.
The burden to prove that Paciencia was of unsound mind at the
time of the execution of the will lies on the shoulders of the
petitioners.
Petitioners, through their witness Rosie, claim that Paciencia was
"magulyan" or forgetful so much so that it effectively stripped her
of testamentary capacity. They likewise claimed in their Motion for
Reconsideration66 filed with the CA that Paciencia was not only
"magulyan" but was actually suffering from paranoia. 67
We are not convinced.

We agree with the position of the CA that the state of being


forgetful does not necessarily make a person mentally unsound so
as to render him unfit to execute a Will. 68 Forgetfulness is not
equivalent to being of unsound mind. Besides, Article 799 of the
New Civil Code states:
Art. 799. To be of sound mind, it is not necessary that the testator
be in full possession of all his reasoning faculties, or that his mind
be wholly unbroken, unimpaired, or unshattered by disease, injury
or other cause.
It shall be sufficient if the testator was able at the time of making
the will to know the nature of the estate to be disposed of, the
proper objects of his bounty, and the character of the
testamentary act.
In this case, apart from the testimony of Rosie pertaining to
Paciencias forgetfulness, there is no substantial evidence,
medical or otherwise, that would show that Paciencia was of
unsound mind at the time of the execution of the Will. On the
other hand, we find more worthy of credence Dra. Limpins
testimony as to the soundness of mind of Paciencia when the
latter went to Judge Limpins house and voluntarily executed the
Will. "The testimony of subscribing witnesses to a Will concerning
the testators mental condition is entitled to great weight where
they are truthful and intelligent."69 More importantly, a testator is
presumed to be of sound mind at the time of the execution of the
Will and the burden to prove otherwise lies on the oppositor.
Article 800 of the New Civil Code states:
Art. 800. The law presumes that every person is of sound mind, in
the absence of proof to the contrary.
The burden of proof that the testator was not of sound mind at
the time of making his dispositions is on the person who opposes
the probate of the will; but if the testator, one month, or less,
before making his will was publicly known to be insane, the
person who maintains the validity of the will must prove that the
testator made it during a lucid interval.

Here, there was no showing that Paciencia was publicly known to


be insane one month or less before the making of the Will.
Clearly, thus, the burden to prove that Paciencia was of unsound
mind lies upon the shoulders of petitioners. However and as
earlier mentioned, no substantial evidence was presented by
them to prove the same, thereby warranting the CAs finding that
petitioners failed to discharge such burden.
Furthermore, we are convinced that Paciencia was aware of the
nature of her estate to be disposed of, the proper objects of her
bounty and the character of the testamentary act. As aptly
pointed out by the CA:
A scrutiny of the Will discloses that [Paciencia] was aware of the
nature of the document she executed. She specially requested
that the customs of her faith be observed upon her death. She
was well aware of how she acquired the properties from her
parents and the properties she is bequeathing to LORENZO, to his
wife CORAZON and to his two (2) children. A third child was born
after the execution of the will and was not included therein as
devisee.70
Bare allegations of duress or influence of fear or threats, undue
and improper influence and pressure, fraud and trickery cannot be
used as basis to deny the probate of a will.
An essential element of the validity of the Will is the willingness of
the testator or testatrix to execute the document that will
distribute his/her earthly possessions upon his/her death.
Petitioners claim that Paciencia was forced to execute the Will
under duress or influence of fear or threats; that the execution of
the Will had been procured by undue and improper pressure and
influence by Lorenzo or by some other persons for his benefit; and
that assuming Paciencias signature to be genuine, it was
obtained through fraud or trickery. These are grounded on the
alleged conversation between Paciencia and Antonio on
September 16, 1981 wherein the former purportedly repudiated
the Will and left it unsigned.
We are not persuaded.

We take into consideration the unrebutted fact that Paciencia


loved and treated Lorenzo as her own son and that love even
extended to Lorenzos wife and children. This kind of relationship
is not unusual. It is in fact not unheard of in our culture for old
maids or spinsters to care for and raise their nephews and nieces
and treat them as their own children. Such is a prevalent and
accepted cultural practice that has resulted in many family
discords between those favored by the testamentary disposition
of a testator and those who stand to benefit in case of intestacy.
In this case, evidence shows the acknowledged fact that
Paciencias relationship with Lorenzo and his family is different
from her relationship with petitioners. The very fact that she
cared for and raised Lorenzo and lived with him both here and
abroad, even if the latter was already married and already has
children, highlights the special bond between them. This
unquestioned relationship between Paciencia and the devisees
tends to support the authenticity of the said document as against
petitioners allegations of duress, influence of fear or threats,
undue and improper influence, pressure, fraud, and trickery
which, aside from being factual in nature, are not supported by
concrete, substantial and credible evidence on record. It is worth
stressing that bare arguments, no matter how forceful, if not
based on concrete and substantial evidence cannot suffice to
move the Court to uphold said allegations. 71 Furthermore, "a
purported will is not [to be] denied legalization on dubious
grounds. Otherwise, the very institution of testamentary
succession will be shaken to its foundation, for even if a will has
been duly executed in fact, whether x x x it will be probated
would have to depend largely on the attitude of those interested
in [the estate of the deceased]."72
Court should be convinced by the evidence presented before it
that the Will was duly executed.
Petitioners dispute the authenticity of Paciencias Will on the
ground that Section 11 of Rule 76 of the Rules of Court was not
complied with. It provides:
RULE 76

Allowance or Disallowance of Will


Section 11. Subscribing witnesses produced or accounted for
where will contested. If the will is contested, all the subscribing
witnesses, and the notary in the case of wills executed under the
Civil Code of the Philippines, if present in the Philippines and not
insane, must be produced and examined, and the death, absence,
or insanity of any of them must be satisfactorily shown to the
court. If all or some of such witnesses are present in the
Philippines but outside the province where the will has been filed,
their deposition must be taken. If any or all of them testify against
the due execution of the will, or do not remember having attested
to it, or are otherwise of doubtful credibility, the will may
nevertheless, be allowed if the court is satisfied from the
testimony of other witnesses and from all the evidence presented
that the will was executed and attested in the manner required by
law.
If a holographic will is contested, the same shall be allowed if at
least three (3) witnesses who know the handwriting of the
testator explicitly declare that the will and the signature are in the
handwriting of the testator; in the absence of any competent
witnesses, and if the court deem it necessary, expert testimony
may be resorted to. (Emphasis supplied.)
They insist that all subscribing witnesses and the notary public
should have been presented in court since all but one witness,
Francisco, are still living.
We cannot agree with petitioners.

We note that the inability of Faustino and Judge Limpin to appear


and testify before the court was satisfactorily explained during the
probate proceedings. As testified to by his son, Faustino had a
heart attack, was already bedridden and could no longer talk and
express himself due to brain damage. To prove this, said witness
presented the corresponding medical certificate. For her part, Dra.
Limpin testified that her father, Judge Limpin, suffered a stroke in
1991 and had to undergo brain surgery. At that time, Judge Limpin
could no longer talk and could not even remember his daughters
name so that Dra. Limpin stated that given such condition, her
father could no longer testify. It is well to note that at that point,
despite ample opportunity, petitioners neither interposed any
objections to the testimonies of said witnesses nor challenged the
same on cross examination. We thus hold that for all intents and
purposes, Lorenzo was able to satisfactorily account for the
incapacity and failure of the said subscribing witness and of the
notary public to testify in court. Because of this the probate of
Paciencias Will may be allowed on the basis of Dra. Limpins
testimony proving her sanity and the due execution of the Will, as
well as on the proof of her handwriting. It is an established rule
that "[a] testament may not be disallowed just because the
attesting witnesses declare against its due execution; neither
does it have to be necessarily allowed just because all the
attesting witnesses declare in favor of its legalization; what is
decisive is that the court is convinced by evidence before it, not
necessarily from the attesting witnesses, although they must
testify, that the will was or was not duly executed in the manner
required by law."731wphi1

Moreover, it bears stressing that "[i]rrespective x x x of the


posture of any of the parties as regards the authenticity and due
execution of the will x x x in question, it is the mandate of the law
that it is the evidence before the court and/or [evidence that]
ought to be before it that is controlling." 74 "The very existence of
[the Will] is in itself prima facie proof that the supposed [testatrix]
has willed that [her] estate be distributed in the manner therein
provided, and it is incumbent upon the state that, if legally
tenable, such desire be given full effect independent of the
attitude of the parties affected thereby."75 This, coupled with
Lorenzos established relationship with Paciencia, the evidence
and the testimonies of disinterested witnesses, as opposed to the
total lack of evidence presented by petitioners apart from their
self-serving testimonies, constrain us to tilt the balance in favor of
the authenticity of the Will and its allowance for probate.
WHEREFORE, the petition is DENIED. The Decision dated June 15,
2006 and the Resolution dated August 31, 2006 of the Court of
Appeals in CA-G.R. CV No. 80979 are AFFIRMED.
SO ORDERED.

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).

Judge Bienvenido A. Tan dismissed the second guardianship


proceeding and confirmed Nenita's appointment as guardian of
Agapito (p. 16, Rollo of CA case). Agapito has been staying in a
veteran's hospital in San Francisco or Palo Alto, California (p. 87,
Record).
On a date not indicated in the record, the spouses Antonio Sy and
Hermogena Talan begot a child named Marilyn Sy, who, when a
few days old, was entrusted to Arsenia de la Cruz (apparently a
girl friend of Agapito) and who was later delivered to Marcelina
Salvador Suroza who brought her up as a supposed daughter of
Agapito and as her granddaughter (pp. 23-26, Rollo of CA-G.R.
No.SP-08654-R). Marilyn used the surname Suroza. She stayed
with Marcelina but was not legally adopted by Agapito. She
married Oscar Medrano and is residing at 7666 J.B. Roxas Street,
Makati, apparently a neighbor of Marina Paje, a resident of 7668
J.B. Roxas Street.
Marcelina supposedly executed a notarial will in Manila on July 23,
1973, when she was 73 years old. That will which is in English
was thumbmarked by her. She was illiterate. Her letters in English
to the Veterans Administration were also thumbmarked by her
(pp. 38-39, CA Rollo). In that wig, Marcelina bequeathed all her
estate to her supposed granddaughter Marilyn.
Marcelina died on November 15, 1974 at the Veterans Hospital in
Quezon City. At the time of her death, she was a resident of 7374
San Maximo Street, Olimpia, Makati, Rizal. She owned a 150square meter lot and house in that place. She acquired the lot in
1966 (p. 134, Record of testate case).
On January 13, 1975, Marina Paje, alleged to be a laundrywoman
of Marcelina (P. 97, CA Rollo) and the executrix in her will (the
alternate executrix was Juanita Macaraeg, mother of Oscar,
Marilyn's husband), filed with the Court of First Instance of Rizal,
Pasig Branch 25, a petition for the probate of Marcelina's alleged
will. The case was assigned to Judge Reynaldo P. Honrado.

As there was no opposition, Judge Honrado commissioned his


deputy clerk of court, Evangeline S. Yuipco, to hear the evidence.
The transcripts of the stenographic notes taken at the hearing
before the deputy clerk of court are not in the record.
In an order dated March 31, 1975, Judge Honrado appointed
Marina as administratrix. On the following day, April 1, Judge
Honrado issued two orders directing the Merchants Banking
Corporation and the Bank of America to allow Marina to withdraw
the sum of P10,000 from the savings accounts of Marcelina S.
Suroza and Marilyn Suroza and requiring Corazon Castro, the
custodian of the passbooks, to deliver them to Marina.
Upon motion of Marina, Judge Honrado issued another order dated
April 11, 1975, instructing a deputy sheriff to eject the occupants
of the testatrix's house, among whom was Nenita V. Suroza, and
to place Marina in possession thereof.
That order alerted Nenita to the existence of the testamentary
proceeding for the settlement of Marcelina's estate. She and the
other occupants of the decedent's house filed on April 18 in the
said proceeding a motion to set aside the order of April 11
ejecting them. They alleged that the decedent's son Agapito was
the sole heir of the deceased, that he has a daughter named Lilia,
that Nenita was Agapito's guardian and that Marilyn was not
Agapito's daughter nor the decedent's granddaughter (pp. 52-68,
Record of testate case). Later, they questioned the probate
court's jurisdiction to issue the ejectment order.
In spite of the fact that Judge Honrado was already apprised that
persons, other than Marilyn, were claiming Marcelina's estate, he
issued on April 23 an order probating her supposed will wherein
Marilyn was the instituted heiress (pp. 74-77, Record).

On April 24, Nenita filed in the testate case an omnibus petition


"to set aside proceedings, admit opposition with counter-petition
for administration and preliminary injunction". Nenita in that
motion reiterated her allegation that Marilyn was a stranger to
Marcelina, that the will was not duly executed and attested, that it
was procured by means of undue influence employed by Marina
and Marilyn and that the thumbmarks of the testatrix were
procured by fraud or trick.
Nenita further alleged that the institution of Marilyn as heir is void
because of the preterition of Agapito and that Marina was not
qualified to act as executrix (pp. 83-91, Record).
To that motion was attached an affidavit of Zenaida A. Penaojas
the housemaid of Marcelina, who swore that the alleged will was
falsified (p. 109, Record).
Not content with her motion to set aside the ejectment order
(filed on April 18) and her omnibus motion to set aside the
proceedings (filed on April 24), Nenita filed the next day, April 25,
an opposition to the probate of the will and a counter-petition for
letters of administration. In that opposition, Nenita assailed the
due execution of the will and stated the names and addresses of
Marcelina's intestate heirs, her nieces and nephews (pp. 113-121,
Record). Nenita was not aware of the decree of probate dated
April 23, 1975.
To that opposition was attached an affidavit of Dominga Salvador
Teodocio, Marcelina's niece, who swore that Marcelina never
executed a win (pp. 124-125, Record).
Marina in her answer to Nenita's motion to set aside the
proceedings admitted that Marilyn was not Marcelina's
granddaughter but was the daughter of Agapito and Arsenia de la
Cruz and that Agapito was not Marcelina's sonbut merely
an anak-anakan who was not legally adopted (p. 143, Record).
Judge Honrado in his order of July 17, 1975 dismissed Nenita's
counter-petition for the issuance of letters of administration
because of the non-appearance of her counsel at the hearing. She
moved for the reconsideration of that order.

In a motion dated December 5, 1975, for the consolidation of all


pending incidents, Nenita V. Suroza reiterated her contention that
the alleged will is void because Marcelina did not appear before
the notary and because it is written in English which is not known
to her (pp. 208-209, Record).
Judge Honrado in his order of June 8, 1976 "denied" the various
incidents "raised" by Nenita (p. 284, Record).
Instead of appealing from that order and the order probating the
wig, Nenita "filed a case to annul" the probate proceedings (p.
332, Record). That case, Civil Case No. 24276, Suroza vs. Paje and
Honrado (p. 398, Record), was also assigned to Judge Honrado. He
dismissed it in his order of February 16, 1977 (pp. 398-402,
Record).
Judge Honrado in his order dated December 22, 1977, after noting
that the executrix had delivered the estate to Marilyn, and that
the estate tax had been paid, closed the testamentary
proceeding.
About ten months later, in a verified complaint dated October 12,
1978, filed in this Court, Nenita charged Judge Honrado with
having probated the fraudulent will of Marcelina. The complainant
reiterated her contention that the testatrix was illiterate as shown
by the fact that she affixed her thumbmark to the will and that
she did not know English, the language in which the win was
written. (In the decree of probate Judge Honrado did not make
any finding that the will was written in a language known to the
testatrix.)
Nenita further alleged that Judge Honrado, in spite of his
knowledge that the testatrix had a son named Agapito (the
testatrix's supposed sole compulsory and legal heir), who was
preterited in the will, did not take into account the consequences
of such a preterition.
Nenita disclosed that she talked several times with Judge Honrado
and informed him that the testatrix did not know the executrix
Marina Paje, that the beneficiary's real name is Marilyn Sy and
that she was not the next of kin of the testatrix.

Nenita denounced Judge Honrado for having acted corruptly in


allowing Marina and her cohorts to withdraw from various banks
the deposits Marcelina.
She also denounced Evangeline S. Yuipco, the deputy clerk of
court, for not giving her access to the record of the probate case
by alleging that it was useless for Nenita to oppose the probate
since Judge Honrado would not change his decision. Nenita also
said that Evangeline insinuated that if she (Nenita) had ten
thousand pesos, the case might be decided in her favor.
Evangeline allegedly advised Nenita to desist from claiming the
properties of the testatrix because she (Nenita) had no rights
thereto and, should she persist, she might lose her pension from
the Federal Government.
Judge Honrado in his brief comment did not deal specifically with
the allegations of the complaint. He merely pointed to the fact
that Nenita did not appeal from the decree of probate and that in
a motion dated July 6, 1976 she asked for a thirty day period
within which to vacate the house of the testatrix.
Evangeline S. Yuipco in her affidavit said that she never talked
with Nenita and that the latter did not mention Evangeline in her
letter dated September 11, 1978 to President Marcos.
Evangeline branded as a lie Nenita's imputation that she
(Evangeline) prevented Nenita from having access to the record
of the testamentary proceeding. Evangeline was not the
custodian of the record. Evangeline " strongly, vehemently and
flatly denied" Nenita's charge that she (Evangeline) said that the
sum of ten thousand pesos was needed in order that Nenita could
get a favorable decision. Evangeline also denied that she has any
knowledge of Nenita's pension from the Federal Government.
The 1978 complaint against Judge Honorado was brought to
attention of this Court in the Court Administrator's memorandum
of September 25, 1980. The case was referred to Justice Juan A.
Sison of the Court of Appeals for investigation, report and
recommendation. He submitted a report dated October 7, 1981.

On December 14, 1978, Nenita filed in the Court of Appeals


against Judge Honrado a petition for certiorari and prohibition
wherein she prayed that the will, the decree of probate and all the
proceedings in the probate case be declared void.
Attached to the petition was the affidavit of Domingo P. Aquino,
who notarized the will. He swore that the testatrix and the three
attesting witnesses did not appear before him and that he
notarized the will "just to accommodate a brother lawyer on the
condition" that said lawyer would bring to the notary the testatrix
and the witnesses but the lawyer never complied with his
commitment.
The Court of Appeals dismissed the petition because Nenita's
remedy was an appeal and her failure to do so did not entitle her
to resort to the special civil action of certiorari (Suroza vs.
Honrado, CA-G.R. No. SP-08654, May 24, 1981).
Relying on that decision, Judge Honrado filed on November 17,
1981 a motion to dismiss the administrative case for having
allegedly become moot and academic.
We hold that disciplinary action should be taken against
respondent judge for his improper disposition of the testate case
which might have resulted in a miscarriage of justice because the
decedent's legal heirs and not the instituted heiress in the void
win should have inherited the decedent's estate.
A judge may be criminally liable or knowingly rendering an unjust
judgment or interlocutory order or rendering a manifestly unjust
judgment or interlocutory order by reason of inexcusable
negligence or ignorance (Arts. 204 to 206, Revised Penal Code).
Administrative action may be taken against a judge of the court of
first instance for serious misconduct or inefficiency ( Sec. 67,
Judiciary Law). Misconduct implies malice or a wrongful intent, not
a mere error of judgment. "For serious misconduct to exist, there
must be reliable evidence showing that the judicial acts
complained of were corrupt or inspired by an intention to violate
the law, or were in persistent disregard of well-known legal rules"
(In re lmpeachment of Horrilleno, 43 Phil. 212, 214-215).

Inefficiency implies negligence, incompetence, ignorance and


carelessness. A judge would be inexcusably negligent if he failed
to observe in the performance of his duties that diligence,
prudence and circumspection which the law requires in the
rendition of any public service (In re Climaco, Adm. Case No. 134J, Jan. 21, 1974, 55 SCRA 107, 119).
In this case, respondent judge, on perusing the will and noting
that it was written in English and was thumbmarked by an
obviously illiterate testatrix, could have readily perceived that the
will is void.
In the opening paragraph of the will, it was stated that English
was a language "understood and known" to the testatrix. But in
its concluding paragraph, it was stated that the will was read to
the testatrix "and translated into Filipino language". (p. 16, Record
of testate case). That could only mean that the will was written in
a language not known to the illiterate testatrix and, therefore, it is
void because of the mandatory provision of article 804 of the Civil
Code that every will must be executed in a language or dialect
known to the testator. Thus, a will written in English, which was
not known to the Igorot testator, is void and was disallowed (Acop
vs. Piraso, 52 Phil. 660).
The hasty preparation of the will is shown in the attestation
clause and notarial acknowledgment where Marcelina Salvador
Suroza is repeatedly referred to as the "testator" instead of
"testatrix".
Had respondent judge been careful and observant, he could have
noted not only the anomaly as to the language of the will but also
that there was something wrong in instituting the supposed
granddaughter as sole heiress and giving nothing at all to her
supposed father who was still alive.
Furthermore, after the hearing conducted by respondent deputy
clerk of court, respondent judge could have noticed that the
notary was not presented as a witness.

In spite of the absence of an opposition, respondent judge should


have personally conducted the hearing on the probate of the will
so that he could have ascertained whether the will was validly
executed.
Under the circumstances, we find his negligence and dereliction
of duty to be inexcusable.
WHEREFORE, for inefficiency in handling the testate case of
Marcelina S. Suroza, a fine equivalent to his salary for one month
is imposed on respondent judge (his compulsory retirement falls
on December 25, 1981).
The case against respondent Yuipco has become moot and
academic because she is no longer employed in the judiciary.
Since September 1, 1980 she has been assistant city fiscal of
Surigao City. She is beyond this Court's disciplinary jurisdiction
(Peralta vs. Firm Adm. Matter No. 2044-CFI November 21, 1980,
101 SCRA 225).
SO ORDERED.
G.R. No. 42258

September 5, 1936

In re Will of the deceased Leoncia Tolentino. VICTORIO PAYAD, petitioner-appellant,


vs.
AQUILINA TOLENTINO, oppositor-appellant.

Vicente Foz, Marciano Almario, and Leonardo Abola for petitionerappellant.


Leodegario Azarraga for oppositor-appellant.
DIAZ, J.:
There are two motions filed by the oppositor Aquilina Tolentino,
pending resolution: That of January 29, 1935, praying for the
reconsideration of the decision of the court and that of the same
date, praying for a new trial.
The oppositor bases her motion for reconsideration upon the
following facts relied upon in her pleading:
1. That the testatrix did not personally place her thumbmark on
her alleged will;
2. That the testatrix did not request Attorney Almario to write her
name and surname on the spaces of the will where she should
place her thumbmarks;
3. That the will in question was not signed by the testatrix on the
date indicated therein;
4. That the testatrix never made the will in question; and
5. That on the date the will in question was executed, the testatrix
was no longer in a physical or mental condition to make it.

We have again reviewed the evidence to determine once more


whether the errors assigned by the oppositor in her brief have not
been duly considered, whether some fact or detail which might
have led us to another conclusion has been overlooked, or
whether the conclusions arrived at in our decision are not
supported by the evidence. We have found that the testatrix
Leoncia Tolentino, notwithstanding her advanced age of 92 years,
was in good health until September 1, 1933. She had a slight cold
on said date for which reason she was visited by her physician, Dr.
Florencio Manuel. Said physician again visited her three or four
days later and found her still suffering from said illness but there
was no indication that she had but a few days to live. She ate
comparatively well and conserved her mind and memory at least
long after noon of September 7, 1933. She took her last
nourishment of milk in the morning of the following day,
September 8, 1933, and death did not come to her until 11
o'clock sharp that morning.

The will in question was prepared by Attorney Marciano Almario


between 11 and 12 o'clock noon on September 7, 1933, in the
house of the testatrix Leoncia Tolentino, after she had expressed
to said attorney her desire to make a will and bequeath her
property to the petitioner Victorio Payad in compensation
according to her, for his diligent and faithful services rendered to
her. Victorio Payad had grown up under the care of the testatrix
who had been in her home from childhood. The will was written by
Attorney Almario in his own handwriting, and was written in
Spanish because he had been instructed to do so by the testatrix.
It was later read to her in the presence of Pedro L. Cruz, Jose
Ferrer Cruz, Perfecto L. Ona and other persons who were then
present. The testatrix approved all the contents of the document
and requested Attorney Almario to write her name where she had
to sign by means of her thumbmark in view of the fact that her
fingers no longer had the necessary strength to hold a pen. She
did after having taken the pen and tried to sign without anybody's
help. Attorney Almario proceeded to write the name of the
testatrix on the three pages composing the will and the testatrix
placed her thumbmark on said writing with the help of said
attorney, said help consisting in guiding her thumb in order to
place the mark between her name and surname, after she herself
had moistened the tip of her thumb with which she made such
mark, on the ink pad which was brought to her for said purpose.
Said attorney later signed the three pages of the will in the
presence of the testatrix and also of Pedro L. Cruz, and Jose Ferrer
Cruz and Perfecto L. Ona, who, in turn, forthwith signed it
successively and exactly under the same circumstances above
stated.
In support of her claim that the testatrix did not place her
thumbmark on the will on September 7, 1983, and that she never
made said will because she was no longer physically or mentally
in a condition do so, the oppositor cites the testimony of Julian
Rodriguez, Gliceria Quisonia, Paz de Leon and her own.

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.

The testimony of said witnesses is not sufficient to overthrow, or


discredit the testimony of the petitioner-appellant or that of
Attorney Almario and the three instrumental witnesses of the will
because, to corroborate them, we have of record the testimony of
the physician of the deceased and the accountant Ventura Loreto
who are two disinterested witnesses, inasmuch as the outcome of
these proceedings does not affect them in the least. The two
testified that two, three or four days before the death of the
testatrix, they visited her in her home, the former professionally,
and the latter as an acquaintance, and they then found her not so
ill as to be unable to move or hold a conversation. They stated
that she spoke to them intelligently; that she answered all the
questions which they had put to her, and that she could still move
in spite of her weakness.
In view of the foregoing facts and considerations, we deem it
clear that the oppositor's motion for reconsideration is unfounded.
The oppositor's motion for a new trial is based upon the following
facts: (1) That upon her death, the deceased left a letter signed
by herself, placed in a stamped envelope and addressed to
Teodoro R. Yangco, with instructions not to open it until after her
death; (2) that there are witnesses competent to testify on the
letter in question, in addition to other evidence discovered later,
which could not be presented at the trial; (3) that in the letter left
by the deceased, she transfers all her property to Teodoro R.
Yangco stating therein that, upon her death, all the property in
question should become Yangco's. From this alleged fact, the
oppositor infers that the deceased never had and could not have
had the intention to make the will in question, and (4) that said
oppositor knew of the existence of said letter only after her
former attorney, Alejandro Panis, had been informed thereof in
May, 1935, by one of Teodoro R. Yangco's attorneys named Jose
Cortes.

Subsequent to the presentation of the motion for a new trial, the


oppositor filed another supplementary motion alleging that she
had discovered some additional new evidence consisting in the
affidavit of Attorney Gabino Fernando Viola wherein the latter
affirms that Victorio Payad had called him on September 5, 1933,
to prepare the will of the deceased but he did not do so because
after seeing her he had been convinced that she could not make a
will because she had lost her speech and her eyes were already
closed.
The affidavits of Attorneys Jose Cortes and Gabino Fernando Viola,
substantially affirming the facts alleged by the oppositor, are
attached to both motions for a new trial.
The affidavits of Attorneys Jose Cortes and Gabino Fernando Viola
are not and cannot be newly discovered evidence, and are not
admissible to warrant the holding of a new trial, because the
oppositor had been informed of the facts affirmed by Attorney
Jose Cortes in his affidavit long before this case was decided by
this court. It is stated in said affidavit that in May, 1935, Attorney
Jose Cortes revealed to the attorney for oppositor the fact that the
deceased had left a letter whereby she transferred all her
property to Teodoro R. Yangco, and the judgment was rendered
only on January 15, 1936, or eight months later.

The oppositor contends that she had no reason to inform the


court of said newly discovered evidence inasmuch as the
judgment of the lower court was favorable to her. She, however,
overlooks the fact that she also appealed from the decision of the
lower court and it was her duty, under the circumstances, to
inform this court of the discovery of said allegedly newly
discovered evidence and to take advantage of the effects thereof
because, by so doing, she could better support her claim that the
testatrix made no will, much less the will in question. Said
evidence, is not new and is not of the nature of that which gives
rise to a new trial because, under the law, in order that evidence
may be considered newly discovered evidence and may serve as
a ground for a new trial, it is necessary (a) that it could not have
been discovered in time, even by the exercise of due diligence;
(b) that it be material, and (c) that it also be of such a character
as probably to change the result if admitted (section 497, Act No.
190; Banal vs. Safont, 8 Phil., 276).
The affidavit of Attorney Cortes is neither material nor important
in the sense that, even considering it newly discovered evidence,
it will be sufficient to support the decision of the lower court and
modify that of this court. It is simply hearsay or, at most,
corroborative evidence. The letter of the deceased Leoncia
Tolentino to Teodoro R. Yangco would, in the eyes of the law, be
considered important or material evidence but this court has not
the letter in question before it, and no attempt was ever made to
present a copy thereof.

The affidavit of Attorney Gabino Fernando Viola or testimony he


may give pursuant thereto is not more competent than that of
Attorney Jose Cortes because, granting that when he was called
by Victorio Payad to help the deceased Leoncia Tolentino to make
her will and he went to her house on September 5, 1933, the
deceased was almost unconscious, was unintelligible and could
not speak, it does not necessarily mean that on the day she made
her will, September 7, 1933, she had not recovered consciousness
and all her mental faculties to capacitate her to dispose of all her
property. What Attorney Gabino Fernando Viola may testify
pursuant to his affidavit in question is not and can not be newly
discovered evidence of the character provided for by law, not only
because it does not exclude the possibility that testatrix had
somewhat improved in health, which possibility became a reality
at the time she made her will because she was then in the full
enjoyment of her mental faculties, according to the testimony of
Pedro L. Cruz, Jose Ferrer Cruz, Perfecto L. Ona, Victorio Payad and
Marciano Almario, but also because during the hearing of these
proceedings in the Court of First Instance, Attorney Viola was
present, and the oppositor then could have very well called him to
the witness stand, inasmuch as her attorney already knew what
Attorney Viola was to testify about, yet she did not call him. The
last fact is shown by the following excerpt from pages 148 to 150
of the transcript:
Mr. PANIS (attorney for the oppositor, addressing the court): Your
Honor, I should like to present as the last witness Attorney
Fernando Viola who was called by the petitioner Victoria Payad to
prepare the will of the deceased in his favor on September 5,
1933.
COURT: But, Mr. Panis, are you going to testify for Attorney
Fernando Viola? Mr. PANIS: No, Your Honor.
COURT: Well, where is that attorney? Where is that witness whom
you wish to call to the witness stand? Mr. PANIS: Your Honor, he
is busy in the branch, presided over by Judge Sison.

COURT: And when can he come? Mr. PANIS. I am now going to


find out, Your Honor. If the other party, Your Honor, is willing to
admit what said witness is going to testify in the sense that said
Attorney Fernando Viola went to the house of the deceased on
September 5, 1933, for the purpose of talking to the deceased to
draft the will upon petition of Mr. Victorio Payad; if the other party
admits that, then I am going waive the presentation of the
witness Mr. Fernando Viola.
Mr. ALMARIO (attorney for the petitioner): We cannot admit that.
COURT: The court had already assumed beforehand that the other
party would not admit that proposition.
Mr. PANIS: I request Your Honor to reserve us the right to call the
witness, Mr. Viola, without prejudice to the other party's calling
the witness it may wish to call.
COURT: The court reserves to the oppositor its right to call
Attorney Viola to the witness stand.
If, after all, the oppositor did not decide to call Attorney Viola to
testify as a witness in her favor, it might have been because she
considered his testimony unimportant and unnecessary, and at
the present stage of the proceedings, it is already too late to
claim that what said attorney may now testify is a newly
discovered evidence.
For the foregoing considerations, those stated by this court in the
original decision, and the additional reason that, as held in the
case of Chung Kiat vs. Lim Kio (8 Phil., 297), the right to a new
trial on the ground of newly discovered evidence is limited to
ordinary cases pending in this court on bills of exceptions, the
motion for reconsideration and a new trial filed by the oppositor
are hereby denied, ordering that the record be remanded
immediately to the lower court. So ordered.
Avancea, C. J., Villa-Real, Abad Santos, Imperial, and Laurel,
JJ., concur.

G.R. No. L-4067

November 29, 1951

In the Matter of the will of ANTERO MERCADO, deceased.


ROSARIO GARCIA, petitioner,
vs.
JULIANA LACUESTA, ET AL., respondents.
Elviro L. Peralta and Hermenegildo A. Prieto for petitioner.
Faustino B. Tobia, Juan I. Ines and Federico Tacason for
respondents.
PARAS, C.J.:
This is an appeal from a decision of the Court of Appeals
disallowing the will of Antero Mercado dated January 3, 1943. The
will is written in the Ilocano dialect and contains the following
attestation clause:
We, the undersigned, by these presents to declare that the
foregoing testament of Antero Mercado was signed by himself and
also by us below his name and of this attestation clause and that
of the left margin of the three pages thereof. Page three the
continuation of this attestation clause; this will is written in
Ilocano dialect which is spoken and understood by the testator,
and it bears the corresponding number in letter which compose of
three pages and all them were signed in the presence of the
testator and witnesses, and the witnesses in the presence of the
testator and all and each and every one of us witnesses.
In testimony, whereof, we sign this statement, this the third day
of January, one thousand nine hundred forty three, (1943) A.D.
(Sgd.) NUMERIANO
EVANGELISTA
(Sgd.) BIBIANA ILLEGIBLE

(Sgd.) "ROSENDA
CORTES

The will appears to have been signed by Atty. Florentino Javier


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

What has been said makes it unnecessary for us to determine


there is a sufficient recital in the attestation clause as to the
signing of the will by the testator in the presence of the
witnesses, and by the latter in the presence of the testator and of
each other.
Wherefore, the appealed decision is hereby affirmed, with against
the petitioner. So ordered.
Feria, Pablo, Bengzon, Padilla, Reyes, Jugo and Bautista Angelo,
JJ., concur.

G.R. No. L-6285


February 15, 1912
PEDRO BARUT, petitioner-appellant,
vs.
FAUSTINO CABACUNGAN, ET AL., opponents-appellees.
A. M. Jimenez for appellant.
Ramon Querubin for appellees.
MORELAND, J.:
This case is closely connected with the case of Faustino
Cabacungan vs. Pedro Barut and another, No. 6284,1just decided
by this court, wherein there was an application for the probate of
an alleged last will and testament of the same person the probate
of whose will is involved in this suit.
This appeal arises out of an application on the part of Pedro Barut
to probate the last will and testament of Maria Salomon,
deceased. It is alleged in the petition of the probate that Maria
Salomon died on the 7th day of November, 1908, in the pueblo of
Sinait, Ilocos Sur, leaving a last will and testament bearing date
March 2, 1907. Severo Agayan, Timotea Inoselda, Catalino
Ragasa, and A. M. Jimenez are alleged to have been witnesses to
the execution thereof. By the terms of said will Pedro Barut
received the larger part of decedent's property.

The original will appears on page 3 of the record and is in the


Ilocano dialect. Its translation into Spanish appears at page 11.
After disposing of her property the testatrix revoked all former
wills by her made. She also stated in said will that being unable to
read or write, the same had been read to her by Ciriaco
Concepcion and Timotea Inoselda and that she had instructed
Severo Agayan to sign her name to it as testatrix.
The probate of the will was contested and opposed by a number
of the relatives of the deceased on various grounds, among them
that a later will had been executed by the deceased. The will
referred to as being a later will is the one involved in case No.
6284 already referred to. Proceeding for the probate of this later
will were pending at the time. The evidence of the proponents
and of the opponents was taken by the court in both cases for the
purpose of considering them together.
In the case before us the learned probate court found that the will
was not entitled to probate upon the sole ground that the
handwriting of the person who it is alleged signed the name of the
testatrix to the will for and on her behalf looked more like the
handwriting of one of the other witnesses to the will than that of
the person whose handwriting it was alleged to be. We do not
believe that the mere dissimilarity in writing thus mentioned by
the court is sufficient to overcome the uncontradicted testimony
of all the witnesses to the will that the signature of the testatrix
was written by Severo Agayan at her request and in her presence
and in the presence of all the witnesses to the will. It is immaterial
who writes the name of the testatrix provided it is written at her
request and in her presence and in the presence of all the
witnesses to the execution of the will.

The court seems , by inference at least, to have had in mind that


under the law relating to the execution of a will it is necessary
that the person who signs the name of the testatrix must
afterwards sign his own name; and that, in view of the fact that,
in the case at bar, the name signed below that of the testatrix as
the person who signed her name, being, from its appearance, not
the same handwriting as that constituting the name of the
testatrix, the will is accordingly invalid, such fact indicating that
the person who signed the name of the testatrix failed to sign his
own. We do not believe that this contention can be sustained.
Section 618 of the Code of Civil Procedure reads as follows:
No will, except as provided in the preceding section, shall be valid
to pass any estate, real or personal, nor charge or effect the
same, unless it be in writing and signed by the testator, or by the
testator's name written by some other person in his presence,
and by his expenses direction, and attested and subscribed by
three or more credible witnesses in the presence of the testator
and of each. . . .
This is the important part of the section under the terms of which
the court holds that the person who signs the name of the
testator for him must also sign his own name The remainder of
the section reads:
The attestation shall state the fact that the testator signed the
will, or caused it to be signed by some other person, at his
express direction, in the presence of three witnesses, and that
they attested and subscribed it in his presence and in the
presence of each other. But the absence of such form of
attestation shall not render the will invalid if it is proven that the
will was in fact signed and attested as in this section provided.

From these provisions it is entirely clear that, with respect to


the validity of the will, it is unimportant whether the person who
writes the name of the testatrix signs his own or not. The
important thing is that it clearly appears that the name of the
testatrix was signed at her express direction in the presence of
three witnesses and that they attested and subscribed it in her
presence and in the presence of each other. That is all the statute
requires. It may be wise as a practical matter that the one who
signs the testator's name signs also his own; but that it is not
essential to the validity of the will. Whether one parson or another
signed the name of the testatrix in this case is absolutely
unimportant so far as the validity of her will is concerned. The
plain wording of the statute shows that the requirement laid down
by the trial court, if it did lay down, is absolutely unnecessary
under the law; and the reasons underlying the provisions of the
statute relating to the execution of wills do not in any sense
require such a provision. From the standpoint of language it is an
impossibility to draw from the words of the law the inference that
the persons who signs the name of the testator must sign his own
name also. The law requires only three witnesses to a will, not
four.

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:

1. Wills, requisites of; Civil Code, article repealed. Article 695 of


the Civil Procedure; consequently where a testator is unable to
sign his name, the person signing at his request must write at the
bottom of the will the full name of the testator in the latter's
presence, and by his express direction, and then sign his own
name in full.
In the syllabus of decision No. 2586, Tomas Guison vs. Maria
Concepcion,3 the following statements appear:
Wills; inability to sign; signature by another. The testatrix was
not able to sign her name to the will, and she requested another
person to sign it for her. Held, That the will was not duly executed.
(Following Ex parte Arcenas et al., No. 1708, August 24, 1905; Ex
parte Arcenas et al., No. 1708, August 24, 1905; Ex
parte Santiago, No. 2002, August 18, 1905.)
The following syllabus precedes decision No. 3907: 4
Execution of wills. Where it appears in a will that the testator
has stated that by reason of his inability to sign his name he
requested one of the three witnesses present to do so, and that
as a matter of fact, the said witness wrote the name and surname
of the testator who, stating that the instrument executed by him
contained his last will, put the sign of the cross between his said
name and surname, all of which details are set forth in a note
which the witnesses forthwith subscribed in the presence of the
testator and of each other, said will may be probated.
When the essential requisites of section 618 of the Code of Civil
Procedure for the execution and validity of a will have been
complied with, the fact that the witness who was requested to
sign the name of the testator, omitted to state the words 'by
request of .......... the testator,' when writing with his own hand
the name and surname of the said testator, and the fact that said
witness subscribed his name together with the other witnesses
and not below the name of the testator, does not constitute a
defect nor invalidate the said will.
The following statement appears in the syllabus of case No. 4132,
in the matter of the will of Maria Siason: 5

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.

In the preceding decision itself, it is recognized to be convenient


and even prudent to require that the person requested to write
the name of the testator or testatrix in the will also sign the
instrument with his own name and surname. This statement
induces us to believe that, in behalf of the inhabitants of this
country and for sake of an upright administration of justice, it
should be maintained that such a signature must appear in the
will, since no harm could accrue to anyone thereby and, on the
contrary, it would serve as a guarantee of the certainty of the act
performed and also might eliminate some possible cause of
controversy between the interested parties.
The undersigned feels it his duty to admit that, though convinced
of the complete repeal of article 695 of the Civil Code and, while
he conceded that, in the examination and qualification of a will for
the purpose of its probate, one has but to abide by the provisions
of said section 618 of the Code of Civil Procedure, the sole law
applicable in the matter, yet, perhaps imbued with the strongly
impelled by a traditional conception of the laws which he has
known since youth, relative to the form of execution of
testaments, he believed it to be a vary natural and common
sense requisite that the signature, with his own name and
surname, of the person requested to write in the will the name
and surname of the testator or testatrix should form a part of the
provisions of the aforementioned section 618.
He undoubtedly thought, perhaps mistakenly, that such a
requisite of the signature of the person before referred to a
requisite deemed to be convenient and prudent in the majority
opinion formed a part of the provisions of the law, since the
latter contains nothing that prohibits it. The aforementioned
different decisions were drawn up in the form in which they
appear, and signed without dissent by all the justices of the court
on various dates. None of them hesitated to sign the decisions,
notwithstanding that it was expressly held therein that the person
above mentioned should, besides writing in the will the name and
surname of the testator or testatrix, also sign the said instrument
with his own name and surname.

Without being understood to criticize the provision contained in


the said section 618 of the Code of Civil Procedure it will not be
superfluous to mention that the system adopted in this section is
the same as was in vogue under the former laws that governed in
these Islands, with respect to witnesses who were not able or did
not know how to sign their testimony given in criminal or civil
cases, in which event any person at all might write the name and
surname of the witness who was unable or did not know how to
sign, at the foot of his deposition, where a cross was then drawn,
and, this done, it was considered that the instrument had been
signed by the witness, though it is true that all these formalities
were performed before the judge and the clerk or secretary of the
court, which thereupon certified that such procedure was had in
accordance with the law.
The difference is that in the will, pursuant to section 618 of the
Code of Civil Procedure, the person who writes the name and
surname of the testator or testatrix does so by the order and
express direction of the one or of the other, and this fact must be
recorded in the will; but in the matter of the signature of a
deposition, the witness, who could not or did not know how to
sign, did not need to designate anyone to write the deponent's
name and surname, and in practice the witness merely made a
cross beside his name and surname, written by whomever it be.
With regard to the execution of wills in accordance with the
provisions of previous statutes, among them those of the Civil
Code, the person or witness requested by the testator or testatrix
who was not able or did not know how to sign, authenticated the
will by signing it with his own name and surname, preceded by
the words "at the request of the testator or testatrix." Paragraph 2
of article 695 of the Civil Code contains the following provisions
bearing on the subject:
Should the testator declare that he does not know how, or is not
able to sign, one of the attesting witnesses or another person
shall do so for him at his request, the notary certifying thereto.
This shall be done if any one of the witnesses can not sign.

So that, prior to the enforcement in this country in 1901 of the


Code of Civil procedure prescribed by the old laws with respect to
the signing of a will by a testator or testatrix who did not know
how or who could not sign, consisted in that the person appointed
and requested by the testator or testatrix to sign in his or her
stead, such fact being recorded in the will, merely affixed at the
bottom of the will and after the words "at the request of the
testator," his own name, surname and paragraph.
It is not at all strange that the attorneys of this country, imbued
with and inspired by these legal provisions, which it may said, are
traditional to them in the ideas they have formed of the existing
laws in the matter of procedure in compliance therewith as
regards the execution and signing of a will, should have believed
that, after the name and surname of the testator or testatrix had
been written at the foot of the will, the person who signed the
instrument in the manner mentioned should likewise sign the
same with his own name and surname.
If in various decisions it has been indicated that the person who,
under the express direction of the testator or testatrix, wrote the
latter's or the former's name and surname, should also sign the
will with his own name and surname, and since this suggestion is
not opposed or contrary to the law, the undersigned is of opinion
that it ought not to be modified or amended, but that, on the
contrary, it should be maintained as a requisite established by the
jurisprudence of this court, inasmuch as such a requisite is not
contrary to law, to public order, or to good custom, is in
consonance with a tradition of this country, does not prejudice the
testator nor those interested in an inheritance, and, on the
contrary, constitutes another guarantee of the truth and
authenticity of the letters with which the name and surname of
the testator of testatrix are written, in accordance with his or her
desire as expressed in the will.

Even though the requisites referred to were not recognized in


jurisprudence and were unsupported by any legal doctrine
whatever, yet, since it is in harmony with the juridical usages and
customs observed in this country, it ought, in the humble opinion
of the writer, to be maintained for the benefit of the inhabitants of
the Islands and for the sake of a good administration of justice,
because it is not a question of a dangerous innovation or of one
prejudicial to the public good, but a matter of the observance of a
convenient, if not a necessary detail, introduced by the
jurisprudence of the courts and which in the present case has
filed a vacancy left by the positive written law.
The foregoing considerations, which perhaps have not the support
of better premises, but in the opinion of the undersigned, are
conducive to the realization of the purposes of justice, have
impelled him to believe that the proposition should be enforced
that the witness requested or invited by the testator or testatrix
to write his or her name to the will, should also subscribed the
instrument by signing thereto his own name and surname; and
therefore, with the proper finding in this sense, and reversal of the
judgment appealed from, that the court below should be ordered
to proceed with the probate of the will of the decedent, Maria
Salomon, in accordance with the law.
G.R. No. L-18979
June 30, 1964
IN THE MATTER OF THE TESTATE ESTATE OF THE LATE JOSEFA
VILLACORTE.
CELSO ICASIANO, petitioner-appellee,
vs.
NATIVIDAD ICASIANO and ENRIQUE ICASIANO, oppositorsappellants.
Jose W. Diokno for petitioner-appellee.
Rosendo J. Tansinin for oppositor-appellant Natividad Icasiano.
Jaime R. Nuevas for oppositor-appellant Enrique Icasiano.
REYES, J.B.L., J.:

Appeal from an order of the Court of First Instance of Manila


admitting to probate the document and its duplicate, marked as
Exhibits "A" and "A-1", as the true last will and testament of
Josefa Villacorte, deceased, and appointing as executor Celso
Icasiano, the person named therein as such.
This special proceeding was begun on October 2, 1958 by a
petition for the allowance and admission to probate of the
original, Exhibit "A" as the alleged will of Josefa Villacorte,
deceased, and for the appointment of petitioner Celso Icasiano as
executor thereof.
The court set the proving of the alleged will for November 8,
1958, and caused notice thereof to be published for three (3)
successive weeks, previous to the time appointed, in the
newspaper "Manila chronicle", and also caused personal service
of copies thereof upon the known heirs.
On October 31, 1958, Natividad Icasiano, a daughter of the
testatrix, filed her opposition; and on November 10, 1958, she
petitioned to have herself appointed as a special administrator, to
which proponent objected. Hence, on November 18, 1958, the
court issued an order appointing the Philippine Trust Company as
special administrator.1wph1.t
On February 18, 1959, Enrique Icasiano, a son of the testatrix,
also filed a manifestation adopting as his own Natividad's
opposition to the probate of the alleged will.

On March 19, 1959, the petitioner proponent commenced the


introduction of his evidence; but on June 1, 1959, he filed a
motion for the admission of an amended and supplemental
petition, alleging that the decedent left a will executed in
duplicate with all the legal requirements, and that he was, on that
date, submitting the signed duplicate (Exhibit "A-1"), which he
allegedly found only on or about May 26, 1959. On June 17, 1959,
oppositors Natividad Icasiano de Gomez and Enrique Icasiano filed
their joint opposition to the admission of the amended and
supplemental petition, but by order of July 20, 1959, the court
admitted said petition, and on July 30, 1959, oppositor Natividad
Icasiano filed her amended opposition. Thereafter, the parties
presented their respective evidence, and after several hearings
the court issued the order admitting the will and its duplicate to
probate. From this order, the oppositors appealed directly to this
Court, the amount involved being over P200,000.00, on the
ground that the same is contrary to law and the evidence.

The evidence presented for the petitioner is to the effect that


Josefa Villacorte died in the City of Manila on September 12, 1958;
that on June 2, 1956, the late Josefa Villacorte executed a last will
and testament in duplicate at the house of her daughter Mrs.
Felisa Icasiano at Pedro Guevara Street, Manila, published before
and attested by three instrumental witnesses, namely: attorneys
Justo P. Torres, Jr. and Jose V. Natividad, and Mr. Vinicio B. Diy; that
the will was acknowledged by the testatrix and by the said three
instrumental witnesses on the same date before attorney Jose
Oyengco Ong, Notary Public in and for the City of Manila; and that
the will was actually prepared by attorney Fermin Samson, who
was also present during the execution and signing of the
decedent's last will and testament, together with former Governor
Emilio Rustia of Bulacan, Judge Ramon Icasiano and a little girl. Of
the said three instrumental witnesses to the execution of the
decedent's last will and testament, attorneys Torres and Natividad
were in the Philippines at the time of the hearing, and both
testified as to the due execution and authenticity of the said will.
So did the Notary Public before whom the will was acknowledged
by the testatrix and attesting witnesses, and also attorneys
Fermin Samson, who actually prepared the document. The latter
also testified upon cross examination that he prepared one
original and two copies of Josefa Villacorte last will and testament
at his house in Baliuag, Bulacan, but he brought only one original
and one signed copy to Manila, retaining one unsigned copy in
Bulacan.
The records show that the original of the will, which was
surrendered simultaneously with the filing of the petition and
marked as Exhibit "A" consists of five pages, and while signed at
the end and in every page, it does not contain the signature of
one of the attesting witnesses, Atty. Jose V. Natividad, on page
three (3) thereof; but the duplicate copy attached to the amended
and supplemental petition and marked as Exhibit "A-1" is signed
by the testatrix and her three attesting witnesses in each and
every page.

The testimony presented by the proponents of the will tends to


show that the original of the will and its duplicate were subscribed
at the end and on the left margin of each and every page thereof
by the testatrix herself and attested and subscribed by the three
mentioned witnesses in the testatrix's presence and in that of one
another as witnesses (except for the missing signature of attorney
Natividad on page three (3) of the original); that pages of the
original and duplicate of said will were duly numbered; that the
attestation clause thereof contains all the facts required by law to
be recited therein and is signed by the aforesaid attesting
witnesses; that the will is written in the language known to and
spoken by the testatrix that the attestation clause is in a
language also known to and spoken by the witnesses; that the will
was executed on one single occasion in duplicate copies; and that
both the original and the duplicate copies were duly
acknowledged before Notary Public Jose Oyengco of Manila on the
same date June 2, 1956.
Witness Natividad who testified on his failure to sign page three
(3) of the original, admits that he may have lifted two pages
instead of one when he signed the same, but affirmed that page
three (3) was signed in his presence.

Oppositors-appellants in turn introduced expert testimony to the


effect that the signatures of the testatrix in the duplicate (Exhibit
"A-1") are not genuine nor were they written or affixed on the
same occasion as the original, and further aver that granting that
the documents were genuine, they were executed through
mistake and with undue influence and pressure because the
testatrix was deceived into adopting as her last will and
testament the wishes of those who will stand to benefit from the
provisions of the will, as may be inferred from the facts and
circumstances surrounding the execution of the will and the
provisions and dispositions thereof, whereby proponentsappellees stand to profit from properties held by them as
attorneys-in-fact of the deceased and not enumerated or
mentioned therein, while oppositors-appellants are enjoined not
to look for other properties not mentioned in the will, and not to
oppose the probate of it, on penalty of forfeiting their share in the
portion of free disposal.

We have examined the record and are satisfied, as the trial court
was, that the testatrix signed both original and duplicate copies
(Exhibits "A" and "A-1", respectively) of the will spontaneously, on
the same in the presence of the three attesting witnesses, the
notary public who acknowledged the will; and Atty. Samson, who
actually prepared the documents; that the will and its duplicate
were executed in Tagalog, a language known to and spoken by
both the testator and the witnesses, and read to and by the
testatrix and Atty. Fermin Samson, together before they were
actually signed; that the attestation clause is also in a language
known to and spoken by the testatrix and the witnesses. The
opinion of expert for oppositors, Mr. Felipe Logan, that the
signatures of the testatrix appearing in the duplicate original were
not written by the same had which wrote the signatures in the
original will leaves us unconvinced, not merely because it is
directly contradicted by expert Martin Ramos for the proponents,
but principally because of the paucity of the standards used by
him to support the conclusion that the differences between the
standard and questioned signatures are beyond the writer's range
of normal scriptural variation. The expert has, in fact, used as
standards only three other signatures of the testatrix besides
those affixed to the original of the testament (Exh. A); and we feel
that with so few standards the expert's opinion and the signatures
in the duplicate could not be those of the testatrix becomes
extremely hazardous. This is particularly so since the comparison
charts Nos. 3 and 4 fail to show convincingly that the are radical
differences that would justify the charge of forgery, taking into
account the advanced age of the testatrix, the evident variability
of her signatures, and the effect of writing fatigue, the duplicate
being signed right the original. These, factors were not discussed
by the expert.

Similarly, the alleged slight variance in blueness of the ink in the


admitted and questioned signatures does not appear reliable,
considering the standard and challenged writings were affixed to
different kinds of paper, with different surfaces and reflecting
power. On the whole, therefore, we do not find the testimony of
the oppositor's expert sufficient to overcome that of the notary
and the two instrumental witnesses, Torres and Natividad (Dr. Diy
being in the United States during the trial, did not testify).
Nor do we find adequate evidence of fraud or undue influence.
The fact that some heirs are more favored than others is proof of
neither (see In re Butalid, 10 Phil. 27; Bugnao vs. Ubag, 14 Phil.
163; Pecson vs. Coronal, 45 Phil. 216). Diversity of apportionment
is the usual reason for making a testament; otherwise, the
decedent might as well die intestate. The testamentary
dispositions that the heirs should not inquire into other property
and that they should respect the distribution made in the will,
under penalty of forfeiture of their shares in the free part do not
suffice to prove fraud or undue influence. They appear motivated
by the desire to prevent prolonged litigation which, as shown by
ordinary experience, often results in a sizeable portion of the
estate being diverted into the hands of non-heirs and speculators.
Whether these clauses are valid or not is a matter to be litigated
on another occassion. It is also well to note that, as remarked by
the Court of Appeals in Sideco vs. Sideco, 45 Off. Gaz. 168, fraud
and undue influence are mutually repugnant and exclude each
other; their joining as grounds for opposing probate shows
absence of definite evidence against the validity of the will.

On the question of law, we hold that the inadvertent failure of one


witness to affix his signature to one page of a testament, due to
the simultaneous lifting of two pages in the course of signing, is
not per se sufficient to justify denial of probate. Impossibility of
substitution of this page is assured not only the fact that the
testatrix and two other witnesses did sign the defective page, but
also by its bearing the coincident imprint of the seal of the notary
public before whom the testament was ratified by testatrix and all
three witnesses. The law should not be so strictly and literally
interpreted as to penalize the testatrix on account of the
inadvertence of a single witness over whose conduct she had no
control, where the purpose of the law to guarantee the identity of
the testament and its component pages is sufficiently attained, no
intentional or deliberate deviation existed, and the evidence on
record attests to the full observance of the statutory requisites.
Otherwise, as stated in Vda. de Gil. vs. Murciano, 49 Off. Gaz.
1459, at 1479 (decision on reconsideration) "witnesses may
sabotage the will by muddling or bungling it or the attestation
clause".
That the failure of witness Natividad to sign page three (3) was
entirely through pure oversight is shown by his own testimony as
well as by the duplicate copy of the will, which bears a complete
set of signatures in every page. The text of the attestation clause
and the acknowledgment before the Notary Public likewise
evidence that no one was aware of the defect at the time.

This would not be the first time that this Court departs from a
strict and literal application of the statutory requirements, where
the purposes of the law are otherwise satisfied. Thus, despite the
literal tenor of the law, this Court has held that a testament, with
the only page signed at its foot by testator and witnesses, but not
in the left margin, could nevertheless be probated (Abangan vs.
Abangan, 41 Phil. 476); and that despite the requirement for the
correlative lettering of the pages of a will, the failure to make the
first page either by letters or numbers is not a fatal defect (Lopez
vs. Liboro, 81 Phil. 429). These precedents exemplify the Court's
policy to require satisfaction of the legal requirements in order to
guard against fraud and bid faith but without undue or
unnecessary curtailment of the testamentary privilege.
The appellants also argue that since the original of the will is in
existence and available, the duplicate (Exh. A-1) is not entitled to
probate. Since they opposed probate of original because it lacked
one signature in its third page, it is easily discerned that
oppositors-appellants run here into a dilemma; if the original is
defective and invalid, then in law there is no other will but the
duly signed carbon duplicate (Exh. A-1), and the same is
probatable. If the original is valid and can be probated, then the
objection to the signed duplicate need not be considered, being
superfluous and irrelevant. At any rate, said duplicate, Exhibit A-1,
serves to prove that the omission of one signature in the third
page of the original testament was inadvertent and not
intentional.

That the carbon duplicate, Exhibit A-1, was produced and


admitted without a new publication does not affect the jurisdiction
of the probate court, already conferred by the original publication
of the petition for probate. The amended petition did not
substantially alter the one first filed, but merely supplemented it
by disclosing the existence of the duplicate, and no showing is
made that new interests were involved (the contents of Exhibit A
and A-1 are admittedly identical); and appellants were duly
notified of the proposed amendment. It is nowhere proved or
claimed that the amendment deprived the appellants of any
substantial right, and we see no error in admitting the amended
petition.
IN VIEW OF THE FOREGOING, the decision appealed from is
affirmed, with costs against appellants.
Bengzon, C.J., Padilla, Bautista Angelo, Labrador, Concepcion,
Paredes, Regala and Makalintal, JJ., concur.
Barrera and Dizon, JJ., took no part.

G.R. No. L-13431


November 12, 1919
In re will of Ana Abangan.
GERTRUDIS ABANGAN, executrix-appellee,
vs.
ANASTACIA ABANGAN, ET AL., opponents-appellants.
Filemon Sotto for appellants.
M. Jesus Cuenco for appellee.
AVANCEA, J.:
On September 19, 1917, the Court of First Instance of Cebu
admitted to probate Ana Abangan's will executed July, 1916. From
this decision the opponent's appealed.

Said document, duly probated as Ana Abangan's will, consists of


two sheets, the first of which contains all of the disposition of the
testatrix, duly signed at the bottom by Martin Montalban (in the
name and under the direction of the testatrix) and by three
witnesses. The following sheet contains only the attestation
clause duly signed at the bottom by the three instrumental
witnesses. Neither of these sheets is signed on the left margin by
the testatrix and the three witnesses, nor numbered by letters;
and these omissions, according to appellants' contention, are
defects whereby the probate of the will should have been denied.
We are of the opinion that the will was duly admitted to probate.

In requiring that each and every sheet of the will should also be
signed on the left margin by the testator and three witnesses in
the presence of each other, Act No. 2645 (which is the one
applicable in the case) evidently has for its object (referring to the
body of the will itself) to avoid the substitution of any of said
sheets, thereby changing the testator's dispositions. But when
these dispositions are wholly written on only one sheet signed at
the bottom by the testator and three witnesses (as the instant
case), their signatures on the left margin of said sheet would be
completely purposeless. In requiring this signature on the margin,
the statute took into consideration, undoubtedly, the case of a will
written on several sheets and must have referred to the sheets
which the testator and the witnesses do not have to sign at the
bottom. A different interpretation would assume that the statute
requires that this sheet, already signed at the bottom, be signed
twice. We cannot attribute to the statute such an intention. As
these signatures must be written by the testator and the
witnesses in the presence of each other, it appears that, if the
signatures at the bottom of the sheet guaranties its authenticity,
another signature on its left margin would be unneccessary; and if
they do not guaranty, same signatures, affixed on another part of
same sheet, would add nothing. We cannot assume that the
statute regards of such importance the place where the testator
and the witnesses must sign on the sheet that it would consider
that their signatures written on the bottom do not guaranty the
authenticity of the sheet but, if repeated on the margin, give
sufficient security.
In requiring that each and every page of a will must be numbered
correlatively in letters placed on the upper part of the sheet, it is
likewise clear that the object of Act No. 2645 is to know whether
any sheet of the will has been removed. But, when all the
dispositive parts of a will are written on one sheet only, the object
of the statute disappears because the removal of this single
sheet, although unnumbered, cannot be hidden.

What has been said is also applicable to the attestation clause.


Wherefore, without considering whether or not this clause is an
essential part of the will, we hold that in the one accompanying
the will in question, the signatures of the testatrix and of the
three witnesses on the margin and the numbering of the pages of
the sheet are formalities not required by the statute. Moreover,
referring specially to the signature of the testatrix, we can add
that same is not necessary in the attestation clause because this,
as its name implies, appertains only to the witnesses and not to
the testator since the latter does not attest, but executes, the will.
Synthesizing our opinion, we hold that in a will consisting of two
sheets the first of which contains all the testamentary dispositions
and is signed at the bottom by the testator and three witnesses
and the second contains only the attestation clause and is signed
also at the bottom by the three witnesses, it is not necessary that
both sheets be further signed on their margins by the testator and
the witnesses, or be paged.
The object of the solemnities surrounding the execution of wills is
to close the door against bad faith and fraud, to avoid substitution
of wills and testaments and to guaranty their truth and
authenticity. Therefore the laws on this subject should be
interpreted in such a way as to attain these primordal ends. But,
on the other hand, also one must not lose sight of the fact that it
is not the object of the law to restrain and curtail the exercise of
the right to make a will. So when an interpretation already given
assures such ends, any other interpretation whatsoever, that adds
nothing but demands more requisites entirely unnecessary,
useless and frustative of the testator's last will, must be
disregarded. lawphil.net
As another ground for this appeal, it is alleged the records do not
show that the testarix knew the dialect in which the will is written.
But the circumstance appearing in the will itself that same was
executed in the city of Cebu and in the dialect of this locality
where the testatrix was a neighbor is enough, in the absence of
any proof to the contrary, to presume that she knew this dialect in
which this will is written.

For the foregoing considerations, the judgment appealed from is


hereby affirmed with costs against the appellants. So ordered.
Arellano, C.J., Torres, Johnson, Araullo, Street and Malcolm, JJ.,
concur.

G.R. No. L-5826, Testate Estate of Cagro. Cagro v. Cagro et al., 92


Phil. 1032
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
April 29, 1953
G.R. No. L-5826
Testate estate of the late VICENTE CAGRO. JESUSA
CAGRO, petitioner-appellee,
vs.
PELAGIO CAGRO, ET AL., oppositors-appellants.
Clouduallo Lucero and Vicente C. Santos for appellants.
Marciano Chitongco and Zosimo B. Echanova for appellee.
PARAS, C.J.:
This is an appeal interposed by the oppositors from a decision of
the Court of First Instance of Samar, admitting to probate the will
allegedly executed by Vicente Cagro who died in Laoangan,
Pambujan, Samar, on February 14, 1949.
The main objection insisted upon by the appellant in that the will
is fatally defective, because its attestation clause is not signed by
the attesting witnesses. 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.
Wherefore, the appealed decision is reversed and the probate of
the will in question denied. So ordered with costs against the
petitioner and appellee.
Pablo, Bengzon, Montemayor, Jugo and Labrador, JJ., concur.
Separate Opinions
BAUTISTA ANGELO, J., dissenting:
I dissent. In my opinion the will in question has substantially
complied with the formalities of the law and, therefore, should be
admitted to probate . It appears that the will was signed by the
testator and was attested by three instrumental witnesses, not
only at the bottom, but also on the left-hand margin. The
witnesses testified not only that the will was signed by the
testator in their presence and in the presence of each other but
also that when they did so, the attestation clause was already
written thereon. Their testimony has not been contradicted. The
only objection set up by the oppositors to the validity of the will is
the fact that the signatures of the instrumental witnesses do not
appear immediately after the attestation clause.

This objection is too technical to be entertained. In the case


of Abangan vs. Abangan, (40 Phil., 476), this court said that when
the testamentary 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 such a case, the court
said, the requirement of the signatures on the left hand margin
was not necessary because the purpose of the law which is to
avoid the substitution of any of the sheets of the will, thereby
changing the testator's dispositions has already been
accomplished. We may say the same thing in connection with the
will under consideration because while the three instrumental
witnesses did not sign immediately by the majority that it may
have been only added on a subsequent occasion and not at the
uncontradicted testimony of said witnesses to the effect that such
attestation clause was already written in the will when the same
was signed.
The following observation made by this court in the Abangan case
is very fitting:
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 i
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 already given assures
such ends, any other interpretation whatsoever, that adds nothing
but demands more requisites entirely unnecessary useless and
frustrative of the testator's last will, must be disregarded. (supra)
We should not also overlook the liberal trend of the New Civil
Code in the matter of interpretation of wills, the purpose of which,
in case of doubt, is to give such interpretation that would have
the effect of preventing intestacy (article 788 and 791, New Civil
Code)

I am therefore of the opinion that the will in question should be


admitted to probate.
Feria, J., concurs.
TUASON, J., dissenting:
I cuncur in Mr. Justice Bautista's dissenting opinion and may add
that the majority decision erroneously sets down as a fact that the
attestation clause was no signed when the witnesses signatures
appear on the left margin and the real and only question is
whether such signatures are legally sufficient.
The only answers, in our humble opinion, is yes. The law on wills
does not provide that the attesting witness should sign the clause
at the bottom. In the absence of such provision, there is no reason
why signatures on the margin are not good. A letter is not any the
less the writter's simply because it was signed, not at the
conventional place but on the side or on top.
Feria, J., concurs.
G.R. No. L-5971
February 27, 1911
BEATRIZ NERA, ET AL., plaintiffs-appellees,
vs.
NARCISA RIMANDO, defendant-appellant.
Valerio Fontanilla and Andres Asprer for appellant.
Anacleto Diaz for appellees.
CARSON, J.:
The only question raised by the evidence in this case as to the
due execution of the instrument propounded as a will in the court
below, is whether one of the subscribing witnesses was present in
the small room where it was executed at the time when the
testator and the other subscribing witnesses attached their
signatures; or whether at that time he was outside, some eight or
ten feet away, in a large room connecting with the smaller room
by a doorway, across which was hung a curtain which made it
impossible for one in the outside room to see the testator and the
other subscribing witnesses in the act of attaching their
signatures to the instrument.

A majority of the members of the court is of opinion that this


subscribing witness was in the small room with the testator and
the other subscribing witnesses at the time when they attached
their signatures to the instrument, and this finding, of course,
disposes of the appeal and necessitates the affirmance of the
decree admitting the document to probate as the last will and
testament of the deceased.
The trial judge does not appear to have considered the
determination of this question of fact of vital importance in the
determination of this case, as he was of opinion that under the
doctrine laid down in the case of Jaboneta vs. Gustilo (5 Phil. Rep.,
541) the alleged fact that one of the subscribing witnesses was in
the outer room when the testator and the other describing
witnesses signed the instrument in the inner room, had it been
proven, would not be sufficient in itself to invalidate the execution
of the will. But we are unanimously of opinion that had this
subscribing witness been proven to have been in the outer room
at the time when the testator and the other subscribing witnesses
attached their signatures to the instrument in the inner room, it
would have been invalid as a will, the attaching of those
signatures under circumstances not being done "in the presence"
of the witness in the outer room. This because the line of vision
from this witness to the testator and the other subscribing
witnesses would necessarily have been impeded by the curtain
separating the inner from the outer one "at the moment of
inscription of each signature."
In the case just cited, on which the trial court relied, we held that:
The true test of presence of the testator and the witnesses in the
execution of a will is not whether they actually saw each other
sign, but whether they might have been seen each other sign,
had they chosen to do so, considering their mental and physical
condition and position with relation to each other at the moment
of inscription of each signature.

But it is especially to be noted that the position of the parties with


relation to each other at the moment of the subscription of each
signature, must be such that they may see each other sign if they
choose to do so. This, of course, does not mean that the testator
and the subscribing witnesses may be held to have executed the
instrument in the presence of each other if it appears that they
would not have been able to see each other sign at that moment,
without changing their relative positions or existing conditions.
The evidence in the case relied upon by the trial judge discloses
that "at the moment when the witness Javellana signed the
document he was actually and physically present and in such
position with relation to Jaboneta that he could see everything
that took place by merely casting his eyes in the proper direction
and without any physical obstruction to prevent his doing so." And
the decision merely laid down the doctrine that the question
whether the testator and the subscribing witnesses to an alleged
will sign the instrument in the presence of each other does not
depend upon proof of the fact that their eyes were actually cast
upon the paper at the moment of its subscription by each of
them, but that at that moment existing conditions and their
position with relation to each other were such that by merely
casting the eyes in the proper direction they could have seen
each other sign. To extend the doctrine further would open the
door to the possibility of all manner of fraud, substitution, and the
like, and would defeat the purpose for which this particular
condition is prescribed in the code as one of the requisites in the
execution of a will.
The decree entered by the court below admitting the instrument
propounded therein to probate as the last will and testament of
Pedro Rimando, deceased, is affirmed with costs of this instance
against the appellant.
Arellano, C. J., Mapa, Moreland and Trent, JJ., concur.

G.R. No. 122880

April 12, 2006

FELIX AZUELA, Petitioner,


vs.
COURT OF APPEALS, GERALDA AIDA CASTILLO substituted by
ERNESTO G. CASTILLO, Respondents.
DECISION
TINGA, J.:
The core of this petition is a highly defective notarial will,
purportedly executed by Eugenia E. Igsolo (decedent), who died
on 16 December 1982 at the age of 80. In refusing to give legal
recognition to the due execution of this document, the Court is
provided the opportunity to assert a few important doctrinal rules
in the execution of notarial wills, all self-evident in view of Articles
805 and 806 of the Civil Code.
A will whose attestation clause does not contain the number of
pages on which the will is written is fatally defective. A will whose
attestation clause is not signed by the instrumental witnesses is
fatally defective. And perhaps most importantly, a will which does
not contain an acknowledgment, but a merejurat, is fatally
defective. Any one of these defects is sufficient to deny probate. A
notarial will with all three defects is just aching for judicial
rejection.
There is a distinct and consequential reason the Civil Code
provides a comprehensive catalog of imperatives for the proper
execution of a notarial will. Full and faithful compliance with all
the detailed requisites under Article 805 of the Code leave little
room for doubt as to the validity in the due execution of the
notarial will. Article 806 likewise imposes another safeguard to
the validity of notarial wills that they be acknowledged before a
notary public by the testator and the witnesses. A notarial will
executed with indifference to these two codal provisions opens
itself to nagging questions as to its legitimacy.
The case stems from a petition for probate filed on 10 April 1984
with the Regional Trial Court (RTC) of Manila. The petition filed by
petitioner Felix Azuela sought to admit to probate the notarial will
of Eugenia E. Igsolo, which was notarized on 10 June 1981.
Petitioner is the son of the cousin of the decedent.

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

Ang kasulatang ito, na binubuo ng ____ dahon pati ang huling


dahong ito, na ipinahayag sa amin ni Eugenia E. Igsolo,
tagapagmana na siya niyang Huling Habilin, ngayon ika-10 ng
Hunyo 1981, ay nilagdaan ng nasabing tagapagmana sa ilalim ng
kasulatang nabanggit at sa kaliwang panig ng lahat at bawat
dahon, sa harap ng lahat at bawat sa amin, at kami namang mga
saksi ay lumagda sa harap ng nasabing tagapagmana at sa harap
ng lahat at bawat isa sa amin, sa ilalim ng nasabing kasulatan at
sa kaliwang panig ng lahat at bawat dahon ng kasulatan ito.
EUGENIA E. IGSOLO
address: 500 San Diego St.
Sampaloc, Manila Res. Cert. No. A-7717-37
Issued at Manila on March 10, 1981.
QUIRINO AGRAVA
address: 1228-Int. 3, Kahilum
Pandacan, Manila Res. Cert. No. A-458365
Issued at Manila on Jan. 21, 1981
LAMBERTO C. LEAO
address: Avenue 2, Blcok 7,
Lot 61, San Gabriel, G.MA., Cavite Res.
Cert. No. A-768277 issued at Carmona, Cavite on Feb. 7, 1981
JUANITO ESTRERA
address: City Court Compound,
City of Manila Res. Cert. No. A574829
Issued at Manila on March 2, 1981.
Nilagdaan ko at ninotario ko ngayong 10 ng Hunyo 10, 1981 dito
sa Lungsod ng Maynila.
(Sgd.)
PETRONIO Y. BAUTISTA
Doc. No. 1232 ; NOTARIO PUBLIKO
Page No. 86 ; Until Dec. 31, 1981
Book No. 43 ; PTR-152041-1/2/81-Manila
Series of 1981 TAN # 1437-977-81
The three named witnesses to the will affixed their signatures on
the left-hand margin of both pages of the will, but not at the
bottom of the attestation clause.

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.

After a careful examination of the will and consideration of the


testimonies of the subscribing and attesting witnesses, and
having in mind the modern tendency in respect to the formalities
in the execution of a will, i.e., the liberalization of the
interpretation of the law on the formal requirements of a will with
the end in view of giving the testator more freedom in expressing
his last wishes, this Court is persuaded to rule that the will in
question is authentic and had been executed by the testatrix in
accordance with law.
On the issue of lack of acknowledgement, this Court has noted
that at the end of the will after the signature of the testatrix, the
following statement is made under the sub-title, "Patunay Ng Mga
Saksi":
"Ang kasulatang ito, na binubuo ng _____ dahon pati ang huling
dahong ito, na ipinahayag sa amin ni Eugenia N. Igsolo,
tagapagmana na siya niyang Huling Habilin, ngayong ika-10 ng
Hunyo 1981, ay nilagdaan ng nasabing tagapagmana sa ilalim ng
kasulatang nabanggit at sa kaliwang panig ng lahat at bawat
dahon, sa harap ng lahat at bawat sa amin, at kami namang mga
saksi ay lumagda sa harap ng nasabing tagapagmana at sa harap
ng lahat at bawat isa sa amin, sa ilalim ng nasabing kasulatan at
sa kaliwang panig ng lahat at bawat dahon ng kasulatan ito."
The aforequoted declaration comprises the attestation clause and
the acknowledgement and is considered by this Court as a
substantial compliance with the requirements of the law.
On the oppositors contention that the attestation clause was not
signed by the subscribing witnesses at the bottom thereof, this
Court is of the view that the signing by the subscribing witnesses
on the left margin of the second page of the will containing the
attestation clause and acknowledgment, instead of at the bottom
thereof, substantially satisfies the purpose of identification and
attestation of the will.

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.

Art. 805. Every will, other than a holographic will, must be


subscribed at the end thereof by the testator himself or by the
testator's name written by some other person in his presence,
and by his express direction, and attested and subscribed by
three or more credible witnesses in the presence of the testator
and of one another.
The testator or the person requested by him to write his name
and the instrumental witnesses of the will, shall also sign, as
aforesaid, each and every page thereof, except the last, on the
left margin, and all the pages shall be numbered correlatively in
letters placed on the upper part of each page.
The attestation shall state the number of pages used upon which
the will is written, and the fact that the testator signed the will
and every page thereof, or caused some other person to write his
name, under his express direction, in the presence of the
instrumental witnesses, and that the latter witnessed and signed
the will and all the pages thereof in the presence of the testator
and of one another.
If the attestation clause is in a language not known to the
witnesses, it shall be interpreted to them.
Art. 806. Every will must be acknowledged before a notary public
by the testator and the witnesses. The notary public shall not be
required to retain a copy of the will, or file another with the office
of the Clerk of Court.
The appellate court, in its Decision, considered only one defect,
the failure of the attestation clause to state the number of pages
of the will. But an examination of the will itself reveals several
more deficiencies.
As admitted by petitioner himself, the attestation clause fails to
state the number of pages of the will. 12 There was an incomplete
attempt to comply with this requisite, a space having been
allotted for the insertion of the number of pages in the attestation
clause. Yet the blank was never filled in; hence, the requisite was
left uncomplied with.

The Court of Appeals pounced on this defect in reversing the trial


court, citing in the process Uy Coque v. Navas L. Sioca13 and In re:
Will of Andrada.14 In Uy Coque, the Court noted that among the
defects of the will in question was the failure of the attestation
clause to state the number of pages contained in the will. 15 In
ruling that the will could not be admitted to probate, the Court
made the following consideration which remains highly relevant to
this day: "The purpose of requiring the number of sheets to be
stated in the attestation clause is obvious; the document might
easily be so prepared that the removal of a sheet would
completely change the testamentary dispositions of the will and
in the absence of a statement of the total number of sheets such
removal might be effected by taking out the sheet and changing
the numbers at the top of the following sheets or pages. If, on the
other hand, the total number of sheets is stated in the attestation
clause the falsification of the document will involve the inserting
of new pages and the forging of the signatures of the testator and
witnesses in the margin, a matter attended with much greater
difficulty."16
The case of In re Will of Andrada concerned a will the attestation
clause of which failed to state the number of sheets or pages
used. This consideration alone was sufficient for the Court to
declare "unanim[ity] upon the point that the defect pointed out in
the attesting clause is fatal."17 It was further observed that "it
cannot be denied that the x x x requirement affords additional
security against the danger that the will may be tampered with;
and as the Legislature has seen fit to prescribe this requirement,
it must be considered material."18
Against these cited cases, petitioner cites Singson v.
Florentino19 and Taboada v. Hon. Rosal,20 wherein the Court
allowed probate to the wills concerned therein despite the fact
that the attestation clause did not state the number of pages of
the will. Yet the appellate court itself considered the import of
these two cases, and made the following distinction which
petitioner is unable to rebut, and which we adopt with approval:

Even a cursory examination of the Will (Exhibit "D"), will readily


show that the attestation does not state the number of pages
used upon which the will is written. Hence, the Will is void and
undeserving of probate.
We are not impervious of the Decisions of the Supreme Court in
"Manuel Singson versus Emilia Florentino, et al., 92 Phil. 161 and
Apolonio [Taboada] versus Hon. Avelino Rosal, et al., 118 SCRA
195," to the effect that a will may still be valid even if the
attestation does not contain the number of pages used upon
which the Will is written. However, the Decisions of the Supreme
Court are not applicable in the aforementioned appeal at bench.
This is so because, in the case of "Manuel Singson versus Emilia
Florentino, et al., supra," although the attestation in the subject
Will did not state the number of pages used in the will, however,
the same was found in the last part of the body of the Will:
"x x x

The law referred to is article 618 of the Code of Civil Procedure, as


amended by Act No. 2645, which requires that the attestation
clause shall state the number of pages or sheets upon which the
will is written, which requirement has been held to be mandatory
as an effective safeguard against the possibility of interpolation or
omission of some of the pages of the will to the prejudice of the
heirs to whom the property is intended to be bequeathed (In re
Will of Andrada, 42 Phil. 180; Uy Coque vs. Navas L. Sioca, 43
Phil., 405; Gumban vs. Gorcho, 50 Phil. 30; Quinto vs. Morata, 54
Phil. 481; Echevarria vs. Sarmiento, 66 Phil. 611). The ratio
decidendi of these cases seems to be that the attestation clause
must contain a statement of the number of sheets or pages
composing the will and that if this is missing or is omitted, it will
have the effect of invalidating the will if the deficiency cannot be
supplied, not by evidence aliunde, but by a consideration or
examination of the will itself. But here the situation is different.
While the attestation clause does not state the number of sheets
or pages upon which the will is written, however, the last part of
the body of the will contains a statement that it is composed of
eight pages, which circumstance in our opinion takes this case out
of the rigid rule of construction and places it within the realm of
similar cases where a broad and more liberal view has been
adopted to prevent the will of the testator from being defeated by
purely technical considerations." (page 165-165, supra)
(Underscoring supplied)
In "Apolonio Tabaoda versus Hon. Avelino Rosal, et al." supra, the
notarial acknowledgement in the Will states the number of pages
used in the:
"x x x

We have examined the will in question and noticed that the


attestation clause failed to state the number of pages used in
writing the will. This would have been a fatal defect were it not for
the fact that, in this case, it is discernible from the entire will that
it is really and actually composed of only two pages duly signed
by the testatrix and her instrumental witnesses. As earlier stated,
the first page which contains the entirety of the testamentary
dispositions is signed by the testatrix at the end or at the bottom
while the instrumental witnesses signed at the left margin. The
other page which is marked as "Pagina dos" comprises the
attestation clause and the acknowledgment. The
acknowledgment itself states that "this Last Will and Testament
consists of two pages including this page" (pages 200-201, supra)
(Underscoring supplied).
However, in the appeal at bench, the number of pages used in the
will is not stated in any part of the Will. The will does not even
contain any notarial acknowledgment wherein the number of
pages of the will should be stated.21
Both Uy Coque and Andrada were decided prior to the enactment
of the Civil Code in 1950, at a time when the statutory provision
governing the formal requirement of wills was Section
618 of the Code of Civil Procedure.22 Reliance on these cases
remains apropos, considering that the requirement that the
attestation state the number of pages of the will is extant from
Section 618.23 However, the enactment of the Civil Code in 1950
did put in force a rule of interpretation of the requirements of
wills, at least insofar as the attestation clause is concerned, that
may vary from the philosophy that governed these two cases.
Article 809 of the Civil Code states: "In the absence of bad faith,
forgery, or fraud, or undue and improper pressure and influence,
defects and imperfections in the form of attestation or in the
language used therein shall not render the will invalid if it is
proved that the will was in fact executed and attested in
substantial compliance with all the requirements of article 805."

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.)

The Court of Appeals did cite these comments by Justice J.B.L.


Reyes in its assailed decision, considering that the failure to state
the number of pages of the will in the attestation clause is one of
the defects which cannot be simply disregarded. In Caneda itself,
the Court refused to allow the probate of a will whose attestation
clause failed to state that the witnesses subscribed their
respective signatures to the will in the presence of the testator
and of each other,30 the other omission cited by Justice J.B.L.
Reyes which to his estimation cannot be lightly disregarded.
Caneda suggested: "[I]t may thus be stated that the rule, as it
now stands, is that omission which can be supplied by an
examination of the will itself, without the need of resorting to
extrinsic evidence, will not be fatal and, correspondingly, would
not obstruct the allowance to probate of the will being assailed.
However, those omissions which cannot be supplied except by
evidence aliunde would result in the invalidation of the attestation
clause and ultimately, of the will itself."31 Thus, a failure by the
attestation clause to state that the testator signed every page
can be liberally construed, since that fact can be checked by a
visual examination; while a failure by the attestation clause to
state that the witnesses signed in one anothers presence should
be considered a fatal flaw since the attestation is the only textual
guarantee of compliance.32

The failure of the attestation clause to state the number of pages


on which the will was written remains a fatal flaw, despite Article
809. The purpose of the law in requiring the clause to state the
number of pages on which the will is written is to safeguard
against possible interpolation or omission of one or some of its
pages and to prevent any increase or decrease in the pages. 33 The
failure to state the number of pages equates with the absence of
an averment on the part of the instrumental witnesses as to how
many pages consisted the will, the execution of which they had
ostensibly just witnessed and subscribed to. Following Caneda,
there is substantial compliance with this requirement if the will
states elsewhere in it how many pages it is comprised of, as was
the situation inSingson and Taboada. However, in this case, there
could have been no substantial compliance with the requirements
under Article 805 since there is no statement in the attestation
clause or anywhere in the will itself as to the number of pages
which comprise the will.
At the same time, Article 809 should not deviate from the need to
comply with the formal requirements as enumerated under Article
805. Whatever the inclinations of the members of the Code
Commission in incorporating Article 805, the fact remains that
they saw fit to prescribe substantially the same formal requisites
as enumerated in Section 618 of the Code of Civil Procedure,
convinced that these remained effective safeguards against the
forgery or intercalation of notarial wills. 34 Compliance with these
requirements, however picayune in impression, affords the public
a high degree of comfort that the testator himself or herself had
decided to convey property post mortem in the manner
established in the will.35 The transcendent legislative intent, even
as expressed in the cited comments of the Code Commission, is
for the fruition of the testators incontestable desires, and not for
the indulgent admission of wills to probate.
The Court could thus end here and affirm the Court of Appeals.
However, an examination of the will itself reveals a couple of even
more critical defects that should necessarily lead to its rejection.

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

The Court today reiterates the continued efficacy of Cagro. Article


805 particularly segregates the requirement that the instrumental
witnesses sign each page of the will, from the requisite that the
will be "attested and subscribed by [the instrumental witnesses]."
The respective intents behind these two classes of signature are
distinct from each other. The signatures on the left-hand corner of
every page signify, among others, that the witnesses are aware
that the page they are signing forms part of the will. On the other
hand, the signatures to the attestation clause establish that the
witnesses are referring to the statements contained in the
attestation clause itself. Indeed, the attestation clause is separate
and apart from the disposition of the will. An unsigned attestation
clause results in an unattested will. Even if the instrumental
witnesses signed the left-hand margin of the page containing the
unsigned attestation clause, such signatures cannot demonstrate
these witnesses undertakings in the clause, since the signatures
that do appear on the page were directed towards a wholly
different avowal.
The Court may be more charitably disposed had the witnesses in
this case signed the attestation clause itself, but not the left-hand
margin of the page containing such clause. Without diminishing
the value of the instrumental witnesses signatures on each and
every page, the fact must be noted that it is the attestation
clause which contains the utterances reduced into writing of the
testamentary witnesses themselves. It is the witnesses, and not
the testator, who are required under Article 805 to state the
number of pages used upon which the will is written; the fact that
the testator had signed the will and every page thereof; and that
they witnessed and signed the will and all the pages thereof in
the presence of the testator and of one another. The only proof in
the will that the witnesses have stated these elemental facts
would be their signatures on the attestation clause.
Thus, the subject will cannot be considered to have been validly
attested to by the instrumental witnesses, as they failed to sign
the attestation clause.

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.

Yet even if we consider what was affixed by the notary public as


a jurat, the will would nonetheless remain invalid, as the express
requirement of Article 806 is that the will be "acknowledged", and
not merely subscribed and sworn to. The will does not present any
textual proof, much less one under oath, that the decedent and
the instrumental witnesses executed or signed the will as their
own free act or deed. The acknowledgment made in a will
provides for another all-important legal safeguard against
spurious wills or those made beyond the free consent of the
testator. An acknowledgement is not an empty meaningless
act.43 The acknowledgment coerces the testator and the
instrumental witnesses to declare before an officer of the law that
they had executed and subscribed to the will as their own free act
or deed. Such declaration is under oath and under pain of perjury,
thus allowing for the criminal prosecution of persons who
participate in the execution of spurious wills, or those executed
without the free consent of the testator. It also provides a further
degree of assurance that the testator is of certain mindset in
making the testamentary dispositions to those persons he/she
had designated in the will.
It may not have been said before, but we can assert the rule, selfevident as it is under Article 806. A notarial will that is not
acknowledged before a notary public by the testator and the
witnesses is fatally defective, even if it is subscribed and sworn to
before a notary public.
There are two other requirements under Article 805 which were
not fully satisfied by the will in question. We need not discuss
them at length, as they are no longer material to the

disposition of this case. The provision requires that the testator


and the instrumental witnesses sign each and every page of the
will on the left margin, except the last; and that all the pages shall
be numbered correlatively in letters placed on the upper part of
each page. In this case, the decedent, unlike the witnesses, failed
to sign both pages of the will on the left margin, her only
signature appearing at the so-called "logical end" 44 of the will on
its first page. Also, the will itself is not numbered correlatively in
letters on each page, but instead numbered with Arabic numerals.
There is a line of thought that has disabused the notion that these
two requirements be construed as mandatory. 45 Taken in isolation,
these omissions, by themselves, may not be sufficient to deny
probate to a will. Yet even as these omissions are not decisive to
the adjudication of this case, they need not be dwelt on, though
indicative as they may be of a general lack of due regard for the
requirements under Article 805 by whoever executed the will.
All told, the string of mortal defects which the will in question
suffers from makes the probate denial inexorable.
WHEREFORE, the petition is DENIED. Costs against petitioner.
SO ORDERED.

G.R. No. L-32213 November 26, 1973


AGAPITA N. CRUZ, petitioner,
vs.
HON. JUDGE GUILLERMO P. VILLASOR, Presiding Judge of Branch I,
Court of First Instance of Cebu, and MANUEL B.
LUGAY, respondents.
Paul G. Gorrez for petitioner.
Mario D. Ortiz for respondent Manuel B. Lugay.
ESGUERRA, J.:

Petition to review on certiorari the judgment of the Court First


Instance of Cebu allowing the probate of the last will a testament
of the late Valente Z. Cruz. Petitioner-appellant Agapita N. Cruz,
the surviving spouse of the said decease opposed the allowance
of the will (Exhibit "E"), alleging the will was executed through
fraud, deceit, misrepresentation and undue influence; that the
said instrument was execute without the testator having been
fully informed of the content thereof, particularly as to what
properties he was disposing and that the supposed last will and
testament was not executed in accordance with law.
Notwithstanding her objection, the Court allowed the probate of
the said last will and testament Hence this appeal by certiorari
which was given due course.
The only question presented for determination, on which the
decision of the case hinges, is whether the supposed last will and
testament of Valente Z. Cruz (Exhibit "E") was executed in
accordance with law, particularly Articles 805 and 806 of the new
Civil Code, the first requiring at least three credible witnesses to
attest and subscribe to the will, and the second requiring the
testator and the witnesses to acknowledge the will before a
notary public.

Of the three instrumental witnesses thereto, namely Deogracias T.


Jamaloas Jr., Dr. Francisco Paares and Atty. Angel H. Teves, Jr.,
one of them, the last named, is at the same time the Notary
Public before whom the will was supposed to have been
acknowledged. Reduced to simpler terms, the question was
attested and subscribed by at least three credible witnesses in
the presence of the testator and of each other, considering that
the three attesting witnesses must appear before the notary
public to acknowledge the same. As the third witness is the
notary public himself, petitioner argues that the result is that only
two witnesses appeared before the notary public to acknowledge
the will. On the other hand, private respondent-appellee, Manuel
B. Lugay, who is the supposed executor of the will, following the
reasoning of the trial court, maintains that there is substantial
compliance with the legal requirement of having at least three
attesting witnesses even if the notary public acted as one of
them, bolstering up his stand with 57 American Jurisprudence, p.
227 which, insofar as pertinent, reads as follows:
It is said that there are, practical reasons for upholding a will as
against the purely technical reason that one of the witnesses
required by law signed as certifying to an acknowledgment of the
testator's signature under oath rather than as attesting the
execution of the instrument.

After weighing the merits of the conflicting claims of the parties,


We are inclined to sustain that of the appellant that the last will
and testament in question was not executed in accordance with
law. The notary public before whom the will was acknowledged
cannot be considered as the third instrumental witness since he
cannot acknowledge before himself his having signed the will. To
acknowledge before means to avow (Javellana v. Ledesma, 97
Phil. 258, 262; Castro v. Castro, 100 Phil. 239, 247); to own as
genuine, to assent, to admit; and "before" means in front or
preceding in space or ahead of. (The New Webster Encyclopedic
Dictionary of the English Language, p. 72; Funk & Wagnalls New
Standard Dictionary of the English Language, p. 252; Webster's
New International Dictionary 2d. p. 245.) Consequently, if the
third witness were the notary public himself, he would have to
avow assent, or admit his having signed the will in front of
himself. This cannot be done because he cannot split his
personality into two so that one will appear before the other to
acknowledge his participation in the making of the will. To permit
such a situation to obtain would be sanctioning a sheer absurdity.
Furthermore, the function of a notary public is, among others, to
guard against any illegal or immoral arrangement Balinon v. De
Leon, 50 0. G. 583.) That function would defeated if the notary
public were one of the attesting instrumental witnesses. For them
he would be interested sustaining the validity of the will as it
directly involves him and the validity of his own act. It would place
him in inconsistent position and the very purpose of
acknowledgment, which is to minimize fraud (Report of Code
Commission p. 106-107), would be thwarted.

Admittedly, there are American precedents holding that notary


public may, in addition, act as a witness to the executive of the
document he has notarized. (Mahilum v. Court Appeals, 64 0. G.
4017; 17 SCRA 482; Sawyer v. Cox, 43 Ill. 130). There are others
holding that his signing merely as notary in a will nonetheless
makes him a witness thereon (Ferguson v. Ferguson, 47 S. E. 2d.
346; In Re Douglas Will, N. Y. S. 2d. 641; Ragsdal v. Hill, 269 S. W.
2d. 911, Tyson Utterback, 122 So. 496; In Re Baybee's Estate 160
N. 900; W. Merill v. Boal, 132 A. 721; See also Trenwith v.
Smallwood, 15 So. 1030). But these authorities do not serve the
purpose of the law in this jurisdiction or are not decisive of the
issue herein because the notaries public and witnesses referred to
aforecited cases merely acted as instrumental, subscribing
attesting witnesses, and not as acknowledgingwitnesses. He the
notary public acted not only as attesting witness but also
acknowledging witness, a situation not envisaged by Article 805
of the Civil Code which reads:
ART. 806. Every will must be acknowledged before a notary public
by the testator and the witnesses. The notary public shall not be
required to retain a copy of the will or file another with the office
of the Clerk of Court. [Emphasis supplied]
To allow the notary public to act as third witness, or one the
attesting and acknowledging witnesses, would have the effect of
having only two attesting witnesses to the will which would be in
contravention of the provisions of Article 80 be requiring at least
three credible witnesses to act as such and of Article 806 which
requires that the testator and the required number of witnesses
must appear before the notary public to acknowledge the will. The
result would be, as has been said, that only two witnesses
appeared before the notary public for or that purpose. In the
circumstances, the law would not be duly in observed.
FOR ALL THE FOREGOING, the judgment appealed from is hereby
reversed and the probate of the last will and testament of Valente
Z. Cruz (Exhibit "E") is declared not valid and hereby set aside.
Cost against the appellee.

Makalintal, C.J., Castro, Teehankee, Makasiar and Muoz Palma,


JJ., concur.

G.R. No. L-7179


June 30, 1955
Testate Estate of the Late Apolinaria Ledesma. FELICIDAD
JAVELLANA, petitioner-appellee,
vs.
DOA MATEA LEDESMA, oppositor-appellant.
Fulgencio Vega and Felix D. Bacabac for appellant.
Benjamin H. Tirot for appellee.
REYES, J.B.L., J.:
By order of July 23, 1953, the Court of First Instance of Iloilo
admitted to probate the documents in the Visayan dialect,
marked Exhibits D and E, as the testament and codicil duly
executed by the deceased Da. Apolinaria Ledesma Vda. de
Javellana, on March 30, 1950, and May 29, 1952, respectively,
with Ramon Tabiana, Gloria Montinola de Tabiana and Vicente Yap
as witnesses. The contestant, Da. Matea Ledesma, sister and
nearest surviving relative of said deceased, appealed from the
decision, insisting that the said exhibits were not executed in
conformity with law. The appeal was made directly to this Court
because the value of the properties involved exceeded two
hundred thousand pesos.
Originally the opposition to the probate also charged that the
testatrix lacked testamentary capacity and that the dispositions
were procured through undue influence. These grounds were
abandoned at the hearing in the court below, where the issue was
concentrated into three specific questions: (1) whether the
testament of 1950 was executed by the testatrix in the presence
of the instrumental witnesses; (2) whether the acknowledgment
clause was signed and the notarial seal affixed by the notary
without the presence of the testatrix and the witnesses; and (3) if
so, whether the codicil was thereby rendered invalid and
ineffective. These questions are the same ones presented to us
for resolution.

The contestant argues that the Court below erred in refusing


credence to her witnesses Maria Paderogao and Vidal Allado, cook
and driver, respectively, of the deceased Apolinaria Ledesma.
Both testified that on March 30, 1950, they saw and heard Vicente
Yap (one of the witnesses to the will) inform the deceased that he
had brought the "testamento" and urge her to go to attorney
Tabiana's office to sign it; that Da. Apolinaria manifested that she
could not go, because she was not feeling well; and that upon
Yap's insistence that the will had to be signed in the attorney's
office and not elsewhere, the deceased took the paper and signed
it in the presence of Yap alone, and returned it with the statement
that no one would question it because the property involved was
exclusively hers.

Our examination of the testimony on record discloses no grounds


for reversing the trial Court's rejection of the improbable story of
the witnesses. It is squarely contradicted by the concordant
testimony of the instrumental witnesses, Vicente Yap, Atty. Ramon
Tabiana, and his wife Gloria Montinola, who asserted under oath
that the testament was executed by testatrix and witnesses in the
presence of each other, at the house of the decedent on General
Hughes St., Iloilo City, on March 30, 1950. And it is highly unlikely,
and contrary to usage, that either Tabiana or Yap should have
insisted that Da. Apolinaria, an infirm lady then over 80 years old,
should leave her own house in order to execute her will, when all
three witnesses could have easily repaired thither for the purpose.
Moreover, the cross-examination has revealed fatal flaws in the
testimony of Contestant's witnesses. Both claim to have heard the
word "testamento" for the first time when Yap used it; and they
claimed ability to recall that word four years later, despite the fact
that the term meant nothing to either. It is well known that what
is to be remembered must first be rationally conceived and
assimilated (II Moore on Facts, p. 884). Likewise, Maria Paderogao
was positive that Yap brought the will, and that the deceased
alone signed it, precisely on March 30, 1950; but she could
remember no other date, nor give satisfactory explanation why
that particular day stuck in her mind. Worse still, Allado claimed
to have heard what allegedly transpired between Yap and Da.
Apolinaria from the kitchen of the house, that was later proved to
have been separated from the deceased's quarters, and standing
at a much lower level, so that conversations in the main building
could not be distinctly heard from the kitchen. Later, on redirect
examination, Allado sought to cure his testimony by claiming that
he was upstairs in a room where the servants used to eat when
he heard Yap converse with his mistress; but this correction is
unavailing, since it was plainly induced by two highly leading
questions from contestant's counsel that had been previously
ruled out by the trial Court. Besides, the contradiction is hardly
consonant with this witness' 18 years of service to the deceased.

Upon the other hand, the discrepancies in the testimony of the


instrumental witnesses urged upon us by the contestantappellant, concerning the presence or absence of Aurelio
Montinola at the signing of the testament or of the codicil, and the
identity of the person who inserted the date therein, are not
material and are largely imaginary, since the witness Mrs. Tabiana
confessed inability to remember all the details of the transaction.
Neither are we impressed by the argument that the use of some
Spanish terms in the codicil and testament (likelegado, partes
iguales, plena propiedad) is proof that its contents were not
understood by the testatrix, it appearing in evidence that those
terms are of common use even in the vernacular, and that the
deceased was a woman of wide business interests.
The most important variation noted by the contestants concerns
that signing of the certificate of acknowledgment (in Spanish)
appended to the Codicil in Visayan, Exhibit E. Unlike the
testament, this codicil was executed after the enactment of the
new Civil Code, and, therefore, had to be acknowledged before a
notary public (Art. 806). Now, the instrumental witnesses (who
happen to be the same ones who attested the will of 1950)
asserted that after the codicil had been signed by the testatrix
and the witnesses at the San Pablo Hospital, the same was signed
and sealed by notary public Gimotea on the same occasion. On
the other hand, Gimotea affirmed that he did not do so, but
brought the codicil to his office, and signed and sealed it there.
The variance does not necessarily imply conscious perversion of
truth on the part of the witnesses, but appears rather due to a
well-established phenomenon, the tendency of the mind, in
recalling past events, to substitute the usual and habitual for what
differs slightly from it (II Moore on Facts, p. 878; The Ellen
McGovern, 27 Fed. 868, 870).

At any rate, as observed by the Court below, whether or not the


notary signed the certification of acknowledgment in the presence
of the testatrix and the witnesses, does not affect the validity of
the codicil. Unlike the Code of 1889 (Art. 699), the new Civil Code
does not require that the signing of the testator, witnesses and
notary should be accomplished in one single act. A comparison of
Articles 805 and 806 of the new Civil Code reveals that while
testator and witnesses sign in the presence of each other, all that
is thereafter required is that "every will must be acknowledged
before a notary public by the testator and the witnesses" (Art.
806); i.e., that the latter should avow to the certifying officer the
authenticity of their signatures and the voluntariness of their
actions in executing the testamentary disposition. This was done
in the case before us. The subsequent signing and sealing by the
notary of his certification that the testament was duly
acknowledged by the participants therein is no part of the
acknowledgment itself nor of the testamentary act. Hence their
separate execution out of the presence of the testatrix and her
witnesses can not be said to violate the rule that testaments
should be completed without interruption (Andalis vs. Pulgueras,
59 Phil. 643), or, as the Roman maxim puts it, "uno codem die ac
tempore in eadem loco", and no reversible error was committed
by the Court in so holding. It is noteworthy that Article 806 of the
new Civil Code does not contain words requiring that the testator
and the witnesses should acknowledge the testament on the
same day or occasion that it was executed.
The decision admitting the will to probate is affirmed, with costs
against appellant.
Bengzon, Acting C.J., Padilla, Montemayor, Reyes, A., Jugo,
Bautista Angelo, Labrador, and Concepcion, JJ.,concur.
G.R. No. 157451 December 16, 2005
LETICIA VALMONTE ORTEGA, Petitioner,
vs.
JOSEFINA C. VALMONTE, Respondent.
DECISION

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;

2. I give, devise and bequeath unto my loving wife, JOSEFINA C.


VALMONTE, one half (1/2) portion of the follow-described
properties, which belongs to me as [co-owner]:
a. Lot 4-A, Block 13 described on plan Psd-28575, LRC, (GLRO),
situated in Makati, Metro Manila, described and covered by TCT
No. 123468 of the Register of Deeds of Pasig, Metro-Manila
registered jointly as co-owners with my deceased sister (Ciriaca
Valmonte), having share and share alike;
b. 2-storey building standing on the above-described property,
made of strong and mixed materials used as my residence and
my wife and located at No. 9200 Catmon Street, Makati, Metro
Manila also covered by Tax Declaration No. A-025-00482, Makati,
Metro-Manila, jointly in the name of my deceased sister, Ciriaca
Valmonte and myself as co-owners, share and share alike or equal
co-owners thereof;
3. All the rest, residue and remainder of my real and personal
properties, including my savings account bank book in USA which
is in the possession of my nephew, and all others whatsoever and
wherever found, I give, devise and bequeath to my said wife,
Josefina C. Valmonte;
4. I hereby appoint my wife, Josefina C. Valmonte as sole executrix
of my last will and testament, and it is my will that said executrix
be exempt from filing a bond;
IN WITNESS WHEREOF, I have hereunto set my hand this 15th day
of June 1983 in Quezon City, Philippines.
"The allowance to probate of this will was opposed by Leticia on
the grounds that:
1. Petitioner failed to allege all assets of the testator, especially
those found in the USA;
2. Petitioner failed to state the names, ages, and residences of
the heirs of the testator; or to give them proper notice pursuant to
law;
3. Will was not executed and attested as required by law and legal
solemnities and formalities were not complied with;
4. Testator was mentally incapable to make a will at the time of
the alleged execution he being in an advance sate of senility;

5. Will was executed under duress, or the influence of fear or


threats;
6. Will was procured by undue and improper influence and
pressure on the part of the petitioner and/or her agents and/or
assistants; and/or
7. Signature of testator was procured by fraud, or trick, and he did
not intend that the instrument should be his will at the time of
affixing his signature thereto;
and she also opposed the appointment as Executrix of Josefina
alleging her want of understanding and integrity.
"At the hearing, the petitioner Josefina testified and called as
witnesses the notary public Atty. Floro Sarmiento who prepared
and notarized the will, and the instrumental witnesses spouses
Eugenio Gomez, Jr. and Feliza Gomez and Josie Collado. For the
opposition, the oppositor Leticia and her daughter Mary Jane
Ortega testified.

"According to Josefina after her marriage with the testator they


lived in her parents house at Salingcob, Bacnotan, La Union but
they came to Manila every month to get his $366.00 monthly
pension and stayed at the said Makati residence. There were
times though when to shave off on expenses, the testator would
travel alone. And it was in one of his travels by his lonesome self
when the notarial will was made. The will was witnessed by the
spouses Eugenio and Feliza Gomez, who were their wedding
sponsors, and by Josie Collado. Josefina said she had no
knowledge of the existence of the last will and testament of her
husband, but just serendipitously found it in his attache case after
his death. It was only then that she learned that the testator
bequeathed to her his properties and she was named the
executrix in the said will. To her estimate, the value of property
both real and personal left by the testator is worth more or less
P100,000.00. Josefina declared too that the testator never
suffered mental infirmity because despite his old age he went
alone to the market which is two to three kilometers from their
home cooked and cleaned the kitchen and sometimes if she could
not accompany him, even traveled to Manila alone to claim his
monthly pension. Josefina also asserts that her husband was in
good health and that he was hospitalized only because of a cold
but which eventually resulted in his death.

"Notary Public Floro Sarmiento, the notary public who notarized


the testators will, testified that it was in the first week of June
1983 when the testator together with the three witnesses of the
will went to his house cum law office and requested him to
prepare his last will and testament. After the testator instructed
him on the terms and dispositions he wanted on the will, the
notary public told them to come back on June 15, 1983 to give
him time to prepare it. After he had prepared the will the notary
public kept it safely hidden and locked in his drawer. The testator
and his witnesses returned on the appointed date but the notary
public was out of town so they were instructed by his wife to
come back on August 9, 1983, and which they did. Before the
testator and his witnesses signed the prepared will, the notary
public explained to them each and every term thereof in Ilocano,
a dialect which the testator spoke and understood. He likewise
explained that though it appears that the will was signed by the
testator and his witnesses on June 15, 1983, the day when it
should have been executed had he not gone out of town, the
formal execution was actually on August 9, 1983. He reasoned
that he no longer changed the typewritten date of June 15, 1983
because he did not like the document to appear dirty. The notary
public also testified that to his observation the testator was
physically and mentally capable at the time he affixed his
signature on the will.

"The attesting witnesses to the will corroborated the testimony of


the notary public, and testified that the testator went alone to the
house of spouses Eugenio and Feliza Gomez at GSIS Village,
Quezon City and requested them to accompany him to the house
of Atty. Floro Sarmiento purposely for his intended will; that after
giving his instructions to Atty. Floro Sarmiento, they were told to
return on June 15, 1983; that they returned on June 15, 1983 for
the execution of the will but were asked to come back instead on
August 9, 1983 because of the absence of the notary public; that
the testator executed the will in question in their presence while
he was of sound and disposing mind and that he was strong and
in good health; that the contents of the will was explained by the
notary public in the Ilocano and Tagalog dialect and that all of
them as witnesses attested and signed the will in the presence of
the testator and of each other. And that during the execution, the
testators wife, Josefina was not with them.
"The oppositor Leticia declared that Josefina should not inherit
alone because aside from her there are other children from the
siblings of Placido who are just as entitled to inherit from him. She
attacked the mental capacity of the testator, declaring that at the
time of the execution of the notarial will the testator was already
83 years old and was no longer of sound mind. She knew whereof
she spoke because in 1983 Placido lived in the Makati residence
and asked Leticias family to live with him and they took care of
him. During that time, the testators physical and mental
condition showed deterioration, aberrations and senility. This was
corroborated by her daughter Mary Jane Ortega for whom Placido
took a fancy and wanted to marry.
"Sifting through the evidence, the court a quo held that [t]he
evidence adduced, reduces the opposition to two grounds,
namely:
1. Non-compliance with the legal solemnities and formalities in
the execution and attestation of the will; and
2. Mental incapacity of the testator at the time of the execution of
the will as he was then in an advanced state of senility

"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

At the outset, we stress that only questions of law may be raised


in a Petition for Review under Section 1 of Rule 45 of the Rules of
Court. As an exception, however, the evidence presented during
the trial may be examined and the factual matters resolved by
this Court when, as in the instant case, the findings of fact of the
appellate court differ from those of the trial court. 9
The fact that public policy favors the probate of a will does not
necessarily mean that every will presented for probate should be
allowed. The law lays down the procedures and requisites that
must be satisfied for the probate of a will. 10 Verily, Article 839 of
the Civil Code states the instances when a will may be disallowed,
as follows:
"Article 839. The will shall be disallowed in any of the following
cases:
(1) If the formalities required by law have not been complied with;
(2) If the testator was insane, or otherwise mentally incapable of
making a will, at the time of its execution;
(3) If it was executed through force or under duress, or the
influence of fear, or threats;
(4) If it was procured by undue and improper pressure and
influence, on the part of the beneficiary or of some other person;
(5) If the signature of the testator was procured by fraud;
(6) If the testator acted by mistake or did not intend that the
instrument he signed should be his will at the time of affixing his
signature thereto."
In the present case, petitioner assails the validity of Placido
Valmontes will by imputing fraud in its execution and challenging
the testators state of mind at the time.
Existence of Fraud in the
Execution of a Will

Petitioner does not dispute the due observance of the formalities


in the execution of the will, but maintains that the circumstances
surrounding it are indicative of the existence of fraud. Particularly,
she alleges that respondent, who is the testators wife and sole
beneficiary, conspired with the notary public and the three
attesting witnesses in deceiving Placido to sign it. Deception is
allegedly reflected in the varying dates of the execution and the
attestation of the will.
Petitioner contends that it was "highly dubious for a woman at the
prime of her young life [to] almost immediately plunge into
marriage with a man who [was] thrice her age x x x and who
happened to be [a] Fil-American pensionado," 11 thus casting doubt
on the intention of respondent in seeking the probate of the will.
Moreover, it supposedly "defies human reason, logic and common
experience"12 for an old man with a severe psychological
condition to have willingly signed a last will and testament.
We are not convinced. Fraud "is a trick, secret device, false
statement, or pretense, by which the subject of it is cheated. It
may be of such character that the testator is misled or deceived
as to the nature or contents of the document which he executes,
or it may relate to some extrinsic fact, in consequence of the
deception regarding which the testator is led to make a certain
will which, but for the fraud, he would not have made." 13
We stress that the party challenging the will bears the burden of
proving the existence of fraud at the time of its execution. 14 The
burden to show otherwise shifts to the proponent of the will only
upon a showing of credible evidence of fraud. 15 Unfortunately in
this case, other than the self-serving allegations of petitioner, no
evidence of fraud was ever presented.
It is a settled doctrine that the omission of some relatives does
not affect the due execution of a will.16 That the testator was
tricked into signing it was not sufficiently established by the fact
that he had instituted his wife, who was more than fifty years his
junior, as the sole beneficiary; and disregarded petitioner and her
family, who were the ones who had taken "the cudgels of taking
care of [the testator] in his twilight years." 17

Moreover, as correctly ruled by the appellate court, the conflict


between the dates appearing on the will does not invalidate the
document, "because the law does not even require that a
[notarial] will x x x be executed and acknowledged on the same
occasion."18 More important, the will must be subscribed by the
testator, as well as by three or more credible witnesses who must
also attest to it in the presence of the testator and of one
another.19 Furthermore, the testator and the witnesses must
acknowledge the will before a notary public. 20 In any event, we
agree with the CA that "the variance in the dates of the will as to
its supposed execution and attestation was satisfactorily and
persuasively explained by the notary public and the instrumental
witnesses."21
The pertinent transcript of stenographic notes taken on June 11,
1985, November 25, 1985, October 13, 1986, and October 21,
1987 -- as quoted by the CA -- are reproduced respectively as
follows:
"Atty. Floro Sarmiento:
Q You typed this document exhibit C, specifying the date June 15
when the testator and his witnesses were supposed to be in your
office?
A Yes sir.
Q On June 15, 1983, did the testator and his witnesses come to
your house?
A They did as of agreement but unfortunately, I was out of town.
xxxxxxxxx
Q The document has been acknowledged on August 9, 1983 as
per acknowledgement appearing therein. Was this the actual date
when the document was acknowledged?
A Yes sir.
Q What about the date when the testator and the three witnesses
affixed their respective signature on the first and second pages of
exhibit C?
A On that particular date when it was acknowledged, August 9,
1983.

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.

"Article 799. To be of sound mind, it is not necessary that the


testator be in full possession of all his reasoning faculties, or that
his mind be wholly unbroken, unimpaired, or shattered by
disease, injury or other cause.
"It shall be sufficient if the testator was able at the time of making
the will to know the nature of the estate to be disposed of, the
proper objects of his bounty, and the character of the
testamentary act.
"Article 800. The law presumes that every person is of sound
mind, in the absence of proof to the contrary.
"The burden of proof that the testator was not of sound mind at
the time of making his dispositions is on the person who opposes
the probate of the will; but if the testator, one month, or less,
before making his will was publicly known to be insane, the
person who maintains the validity of the will must prove that the
testator made it during a lucid interval."
According to Article 799, the three things that the testator must
have the ability to know to be considered of sound mind are as
follows: (1) the nature of the estate to be disposed of, (2) the
proper objects of the testators bounty, and (3) the character of
the testamentary act. Applying this test to the present case, we
find that the appellate court was correct in holding that Placido
had testamentary capacity at the time of the execution of his will.
It must be noted that despite his advanced age, he was still able
to identify accurately the kinds of property he owned, the extent
of his shares in them and even their locations. As regards the
proper objects of his bounty, it was sufficient that he identified his
wife as sole beneficiary. As we have stated earlier, the omission of
some relatives from the will did not affect its formal validity. There
being no showing of fraud in its execution, intent in its disposition
becomes irrelevant.
Worth reiterating in determining soundness of mind is Alsua-Betts
v. CA,25 which held thus:

"Between the highest degree of soundness of mind and memory


which unquestionably carries with it full testamentary capacity,
and that degrees of mental aberration generally known as
insanity or idiocy, there are numberless degrees of mental
capacity or incapacity and while on one hand it has been held
that mere weakness of mind, or partial imbecility from disease of
body, or from age, will not render a person incapable of making a
will; a weak or feebleminded person may make a valid will,
provided he has understanding and memory sufficient to enable
him to know what he is about to do and how or to whom he is
disposing of his property. To constitute a sound and disposing
mind, it is not necessary that the mind be unbroken or unimpaired
or unshattered by disease or otherwise. It has been held that
testamentary incapacity does not necessarily require that a
person shall actually be insane or of unsound mind." 26
WHEREFORE, the Petition is DENIED, and the assailed Decision
and Resolution of the Court of Appeals areAFFIRMED. Costs
against petitioner.
SO ORDERED.

G.R. No. 15566


September 14, 1921
EUTIQUIA AVERA, petitioner-appellee,
vs.
MARINO GARCIA, and JUAN RODRIGUEZ, as guardian of the minors
Cesar Garcia and Jose Garcia,objectors-appellants.
Dionisio Villanueva for appellants.
Marcelino Lontok for appellee.
STREET, J.:

In proceedings in the court below, instituted by Eutiquia Avera for


probate of the will of one Esteban Garcia, contest was made by
Marino Garcia and Juan Rodriguez, the latter in the capacity of
guardian for the minors Jose Garcia and Cesar Garcia. Upon the
date appointed for the hearing, the proponent of the will
introduced one of the three attesting witnesses who testified
with details not necessary to be here specified that the will was
executed with all necessary external formalities, and that the
testator was at the time in full possession of disposing faculties.
Upon the latter point the witness was corroborated by the person
who wrote the will at the request of the testator. Two of the
attesting witnesses were not introduced, nor was their absence
accounted for by the proponent of the will.
When the proponent rested the attorney for the opposition
introduced a single witness whose testimony tended to show in a
vague and indecisive manner that at the time the will was made
the testator was so debilitated as to be unable to comprehend
what he was about.
After the cause had been submitted for determination upon the
proof thus presented, the trial judge found that the testator at the
time of the making of the will was of sound mind and disposing
memory and that the will had been properly executed. He
accordingly admitted the will to probate.
From this judgment an appeal was taken in behalf of the persons
contesting the will, and the only errors here assigned have
reference to the two following points, namely, first, whether a will
can be admitted to probate, where opposition is made, upon the
proof of a single attesting witness, without producing or
accounting for the absence of the other two; and, secondly,
whether the will in question is rendered invalid by reason of the
fact that the signature of the testator and of the three attesting
witnesses are written on the right margin of each page of the will
instead of the left margin.

Upon the first point, while it is undoubtedly true that an


uncontested will bay be proved by the testimony of only one of
the three attesting witnesses, nevertheless in
Cabang vs. Delfinado (34 Phil., 291), this court declared after an
elaborate examination of the American and English authorities
that when a contest is instituted, all of the attesting witnesses
must be examined, if alive and within reach of the process of the
court.
In the present case no explanation was made at the trial as to
why all three of the attesting witnesses were not produced, but
the probable reason is found in the fact that, although the petition
for the probate of this will had been pending from December 21,
1917, until the date set for the hearing, which was April 5, 1919,
no formal contest was entered until the very day set for the
hearing; and it is probable that the attorney for the proponent,
believing in good faith the probate would not be contested,
repaired to the court with only one of the three attesting
witnesses at hand, and upon finding that the will was contested,
incautiously permitted the case to go to proof without asking for a
postponement of the trial in order that he might produce all the
attesting witnesses.
Although this circumstance may explain why the three witnesses
were not produced, it does not in itself supply any basis for
changing the rule expounded in the case above referred to; and
were it not for a fact now to be mentioned, this court would
probably be compelled to reverse this case on the ground that the
execution of the will had not been proved by a sufficient number
of attesting witnesses.

It appears, however, that this point was not raised by the


appellant in the lower court either upon the submission of the
cause for determination in that court or upon the occasion of the
filing of the motion for a new trial. Accordingly it is insisted for the
appellee that this question cannot now be raised for the first time
in this court. We believe this point is well taken, and the first
assignment of error must be declared not be well taken. This
exact question has been decided by the Supreme Court of
California adversely to the contention of the appellant, and we
see no reason why the same rule of practice should not be
observed by us. (Estate of McCarty, 58 Cal., 335, 337.)
There are at least two reason why the appellate tribunals are
disinclined to permit certain questions to be raised for the first
time in the second instance. In the first place it eliminates the
judicial criterion of the Court of First Instance upon the point there
presented and makes the appellate court in effect a court of first
instance with reference to that point, unless the case is remanded
for a new trial. In the second place, it permits, if it does not
encourage, attorneys to trifle with the administration of justice by
concealing from the trial court and from their opponent the actual
point upon which reliance is placed, while they are engaged in
other discussions more simulated than real. These considerations
are, we think, decisive.

In ruling upon the point above presented we do not wish to be


understood as laying down any hard and fast rule that would
prove an embarrassment to this court in the administration of
justice in the future. In one way or another we are constantly here
considering aspects of cases and applying doctrines which have
escaped the attention of all persons concerned in the litigation
below; and this is necessary if this court is to contribute the part
due from it in the correct decision of the cases brought before it.
What we mean to declare is that when we believe that substantial
justice has been done in the Court of First Instance, and the point
relied on for reversal in this court appears to be one which ought
properly to have been presented in that court, we will in the
exercise of a sound discretion ignore such question relates a
defect which might have been cured in the Court of First Instance
if attention had been called to it there. In the present case, if the
appellant had raised this question in the lower court, either at the
hearing or upon a motion for a new trial, that court would have
had the power, and it would have been is duty, considering the
tardy institution of the contest, to have granted a new trial in
order that all the witnesses to the will might be brought into
court. But instead of thus calling the error to the attention of the
court and his adversary, the point is first raised by the appellant
in this court. We hold that this is too late.
Properly understood, the case of Cabang vs. Delfinado, supra,
contains nothing inconsistent with the ruling we now make, for it
appears from the opinion in that case that the proponent of the
will had obtained an order for a republication and new trial for the
avowed purpose of presenting the two additional attesting
witnesses who had not been previously examined, but
nevertheless subsequently failed without any apparent reason to
take their testimony. Both parties in that case were therefore fully
apprised that the question of the number of witnesses necessary
to prove the will was in issue in the lower court.

The second point involved in this case is whether, under section


618 of the Code of Civil Procedure, as amended by Act No. 2645,
it is essential to the validity of a will in this jurisdiction that the
names of the testator and the instrumental witnesses should be
written on the left margin of each page, as required in said Act,
and not upon the right margin, as in the will now before us; and
upon this we are of the opinion that the will in question is valid. It
is true that the statute says that the testator and the instrumental
witnesses shall sign their names on the left margin of each and
every page; and it is undeniable that the general doctrine is to
the effect that all statutory requirements as to the execution of
wills must be fully complied with. The same doctrine is also
deducible from cases heretofore decided by this court.
Still some details at times creep into legislative enactments which
are so trivial it would be absurd to suppose that the Legislature
could have attached any decisive importance to them. The
provision to the effect that the signatures of the testator and
witnesses shall be written on the left margin of each page
rather than on the right margin seems to be this character. So
far as concerns the authentication of the will, and of every part
thereof, it can make no possible difference whether the names
appear on the left or no the right margin, provided they are on
one or the other. In Caraig vs. Tatlonghari (R. G. No. 12558,
decided March 23, 1918, not reported), this court declared a will
void which was totally lacking in the signatures required to be
written on its several pages; and in the case of Re estate of
Saguinsin (41 Phil., 875), a will was likewise declared void which
contained the necessary signatures on the margin of each leaf
( folio), but not in the margin of each page containing written
matter.

The instrument now before us contains the necessary signatures


on every page, and the only point of deviation from the
requirement of the statute is that these signatures appear in the
right margin instead of the left. By the mode of signing adopted
every page and provision of the will is authenticated and guarded
from possible alteration in exactly the same degree that it would
have been protected by being signed in the left margin; and the
resources of casuistry could be exhausted without discovering the
slightest difference between the consequences of affixing the
signatures in one margin or the other.
The same could not be said of a case like that of Estate of
Saguinsin, supra, where only the leaves, or alternate pages, were
signed and not each written page; for as observed in that case by
our late lamented Chief Justice, it was possible that in the will as
there originally executed by the testratrix only the alternative
pages had been used, leaving blanks on the reverse sides, which
conceivably might have been filled in subsequently.
The controlling considerations on the point now before us were
well stated In Re will of Abangan (40 Phil., 476, 479), where the
court, speaking through Mr. Justice Avancea, in a case where the
signatures were placed at the bottom of the page and not in the
margin, said:
The object of the solemnities surrounding the execution of wills is
to close the door against bad faith and fraud, to avoid substitution
o will and testaments and to guarantee their truth and
authenticity. Therefore the laws on this subject should be
interpreted in such a way as to attain these primordial ends. But,
on the other hand, also one must not lose sight of the fact that it
is not the object of the law to restrain and curtail the exercise of
the right to make a will. So when an interpretation already given
assures such ends, any other interpretation whatsoever, that adds
nothing but demands more requisites entirely unnecessary,
useless and frustrative of the testator's last will, must be
disregarded.

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.

G.R. No. L-26808


March 28, 1969
REV. FATHER LUCIO V. GARCIA, petitioner,
vs.
HON. CONRADO M. VASQUEZ, respondent.
Antonio Enrile Inton and Conrado B. Enriquez for petitioner.
No appearance for respondent.
FERNANDO, J.:
Petitioner in this certiorari proceeding was averse to paying the
docket fees in the amount of P940.00 for the probate of a will of
the decedent, Gliceria A. del Rosario. He was of the belief that no
such fee should be collected as previously another alleged will of
the same deceased was filed for probate by another party with
the corresponding docket fee having been paid. He would assert,
as set forth in the petition, "that after [such payment] by the
original petitioner, Consuelo Gonzales, there is no more need for
[him] to pay additional or separate docket fees for their petitions,
since they all refer to the settlement of only one estate, the
Estate of Gliceria A. del Rosario." 1

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.

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.
One last point. The Rules of Court require that for all clerical
services in the allowance of will, the "fees payable out of the
estate shall be collected in accordance with the value of the
property involved ...." 3 The specific legal provision is thus clear
and unmistakable. It is the clerical service in the allowance of the
will that has to be paid for. The docket fees exist for that purpose
and must be collected at the outset. There is no exception
according to the above legal provision. It needs no interpretation.
It must be applied in accordance with the specific language thus
employed. 4 Respondent Judge acted in accordance with the clear
tenor of the controlling legal norm. The alleged grievance of
petitioner that there was a grave abuse of discretion does not
merit any attention. As a matter of fact, on this point, respondent
Judge had no discretion to abuse. The docket fees had to be paid.
There is no escape for petitioner.
WHEREFORE, this petition for certiorari is denied, with costs
against petitioner.
Concepcion, C.J., Reyes, J.B.L., Dizon, Makalintal, Zaldivar,
Sanchez, Castro, Capistrano and Teehankee, JJ., concur.
Barredo, J., reserves his vote
G.R. No. L-26808
May 23, 1969
REV. FATHER LUCIO V. GARCIA, petitioner,
vs.
HON. CONRADO M. VASQUEZ, respondent.

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.

G.R. No. 74695 September 14, 1993


In the Matter of the Probate of the Last Will and Testament of the
Deceased Brigido Alvarado, CESAR ALVARADO, petitioner,
vs.
HON. RAMON G. GAVIOLA, JR., Presiding Justice, HON. MA.
ROSARIO QUETULIO LOSA and HON. LEONOR INES LUCIANO,
Associate Justices, Intermediate Appellate Court, First Division
(Civil Cases), and BAYANI MA. RINO, respondents.
Vicente R. Redor for petitioner.
Bayani Ma. Rino for and in his own behalf.
BELLOSILLO, J.:
Before us is an appeal from the Decision dated 11 April 1986 1 of
the First Civil Cases Division of the then Intermediate Appellate
Court, now Court of Appeals, which affirmed the Order dated 27
June 1983 2 of the Regional Trial Court of Sta. Cruz, Laguna,
admitting to probate the last will and testament 3 with codicil 4 of
the late Brigido Alvarado.

On 5 November 1977, the 79-year old Brigido Alvarado executed


a notarial will entitled "Huling Habilin" wherein he disinherited an
illegitimate son (petitioner) and expressly revoked a previously
executed holographic will at the time awaiting probate before
Branch 4 of the Regional Trial Court of sta. Cruz, Laguna.
As testified to by the three instrumental witnesses, the notary
public and by private respondent who were present at the
execution, the testator did not read the final draft of the will
himself. Instead, private respondent, as the lawyer who drafted
the eight-paged document, read the same aloud in the presence
of the testator, the three instrumental witnesses and the notary
public. The latter four followed the reading with their own
respective copies previously furnished them.
Meanwhile, Brigido's holographic will was subsequently admitted
to probate on 9 December 1977. On the 29th day of the same
month, a codicil entitled "Kasulatan ng Pagbabago sa Ilang
Pagpapasiya na Nasasaad sa Huling Habilin na may Petsa
Nobiembre 5, 1977 ni Brigido Alvarado" was executed changing
some dispositions in the notarial will to generate cash for the
testator's eye operation. Brigido was then suffering from
glaucoma. But the disinheritance and revocatory clauses were
unchanged. As in the case of the notarial will, the testator did not
personally read the final draft of the codicil. Instead, it was private
respondent who read it aloud in his presence and in the presence
of the three instrumental witnesses (same as those of the notarial
will) and the notary public who followed the reading using their
own copies.

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.

The issues now before us can be stated thus: Was Brigido


Alvarado blind for purpose of Art, 808 at the time his "Huling
Habilin" and its codicil were executed? If so, was the doublereading requirement of said article complied with?
Regarding the first issue, there is no dispute on the following
facts: Brigido Alvarado was not totally blind at the time the will
and codicil were executed. However, his vision on both eyes was
only of "counting fingers at three (3) feet" by reason of the
glaucoma which he had been suffering from for several years and
even prior to his first consultation with an eye specialist on
14 December 1977.
The point of dispute is whether the foregoing circumstances
would qualify Brigido as a "blind" testator under Art. 808 which
reads:
Art. 808. If the testator is blind, the will shall be read to him twice;
once, by one of the subscribing witnesses, and again, by the
notary public before whom the will is acknowledged.
Petitioner contends that although his father was not totally blind
when the will and codicil were executed, he can be so considered
within the scope of the term as it is used in Art. 808. To support
his stand, petitioner presented before the trial court a medical
certificate issued by Dr. Salvador R. Salceda, Director of the
Institute of Opthalmology (Philippine Eye Research Institute), 6 the
contents of which were interpreted in layman's terms by Dr.
Ruperto Roasa, whose expertise was admitted by private
respondent. 7 Dr. Roasa explained that although the testator could
visualize fingers at three (3) feet, he could no longer read either
printed or handwritten matters as of 14 December 1977, the day
of his first consultation. 8
On the other hand, the Court of Appeals, contrary to the medical
testimony, held that the testator could still read on the day the
will and the codicil were executed but chose not to do so because
of "poor eyesight." 9 Since the testator was still capable of reading
at that time, the court a quo concluded that Art. 808 need not be
complied with.
We agree with petitioner in this respect.

Regardless of respondent's staunch contention that the testator


was still capable of reading at the time his will and codicil were
prepared, the fact remains and this was testified to by his
witnesses, that Brigido did not do so because of his
"poor," 10 "defective," 11 or "blurred" 12 vision making it necessary
for private respondent to do the actual reading for him.
The following pronouncement in Garcia vs. Vasquez 13 provides an
insight into the scope of the term "blindness" as used in Art. 808,
to wit:
The rationale behind the requirement of reading the will to the
testator if he is blind or incapable of reading the will himself (as
when he is illiterate), is to make the provisions thereof known to
him, so that he may be able to object if they are not in
accordance with his wishes . . .
Clear from the foregoing is that Art. 808 applies not only to blind
testators but also to those who, for one reason or another, are
"incapable of reading the(ir) will(s)." Since Brigido Alvarado was
incapable of reading the final drafts of his will and codicil on the
separate occasions of their execution due to his "poor,"
"defective," or "blurred" vision, there can be no other course for
us but to conclude that Brigido Alvarado comes within the scope
of the term "blind" as it is used in Art. 808. Unless the contents
were read to him, he had no way of ascertaining whether or not
the lawyer who drafted the will and codicil did so confortably with
his instructions. Hence, to consider his will as validly executed
and entitled to probate, it is essential that we ascertain whether
Art. 808 had been complied with.
Article 808 requires that in case of testators like Brigido Alvarado,
the will shall be read twice; once, by one of the instrumental
witnesses and, again, by the notary public before whom the will
was acknowledged. The purpose is to make known to the
incapacitated testator the contents of the document before
signing and to give him an opportunity to object if anything is
contrary to his instructions.

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.

WHEREFORE, the petition is DENIED and the assailed Decision of


respondent Court of Appeals dated 11 April 1986 is AFFIRMED.
Considering the length of time that this case has remained
pending, this decision is immediately executory. Costs against
petitioner.
SO ORDERED.

G.R. No. 103554 May 28, 1993


TEODORO CANEDA, LORENZA CANEDA, TERESA CANEDA, JUAN
CABALLERO, AUREA CABALLERO, OSCAR LAROSA, HELEN
CABALLERO, SANTOS CABALLERO, PABLO CABALLERO, VICTOR
RAGA, MAURICIA RAGA, QUIRICA RAGA, RUPERTO ABAPO,
represented herein by his Attorney-in-Fact, ARMSTICIA * ABAPO
VELANO, and CONSESO CANEDA, represented herein by his heirs,
JESUS CANEDA, NATIVIDAD CANEDA and ARTURO
CANEDA, petitioners,
vs.
HON. COURT OF APPEALS and WILLIAM CABRERA, as Special
Administrator of the Estate of Mateo Caballero, respondents.
Palma, Palma & Associates for petitioners.
Emilio Lumontad, Jr. for private respondents.
REGALADO, J.:
Presented for resolution by this Court in the present petition for
review on certiorari is the issue of whether or not the attestation
clause contained in the last will and testament of the late Mateo
Caballero complies with the requirements of Article 805, in
relation to Article 809, of the Civil Code.

The records show that on December 5, 1978, Mateo Caballero, a


widower without any children and already in the twilight years of
his life, executed a last will and testament at his residence in
Talisay, Cebu before three attesting witnesses, namely, Cipriano
Labuca, Gregorio Cabando and Flaviano Toregosa. The said
testator was duly assisted by his lawyer, Atty. Emilio Lumontad,
and a notary public, Atty. Filoteo Manigos, in the preparation of
that last will. 1 It was declared therein, among other things, that
the testator was leaving by way of legacies and devises his real
and personal properties to Presentacion Gaviola, Angel Abatayo,
Rogelio Abatayo, Isabelito Abatayo, Benoni G. Cabrera and
Marcosa Alcantara, all of whom do not appear to be related to the
testator. 2
Four months later, or on April 4, 1979, Mateo Caballero himself
filed a petition docketed as Special Proceeding No. 3899-R before
Branch II of the then Court of First Instance of Cebu seeking the
probate of his last will and testament. The probate court set the
petition for hearing on August 20, 1979 but the same and
subsequent scheduled hearings were postponed for one reason to
another. On May 29, 1980, the testator passed away before his
petition could finally be heard by the probate court. 3 On February
25, 1981, Benoni Cabrera, on of the legatees named in the will,
sough his appointment as special administrator of the testator's
estate, the estimated value of which was P24,000.00, and he was
so appointed by the probate court in its order of March 6, 1981. 4
Thereafter, herein petitioners, claiming to be nephews and nieces
of the testator, instituted a second petition, entitled "In the Matter
of the Intestate Estate of Mateo Caballero" and docketed as
Special Proceeding No. 3965-R, before Branch IX of the aforesaid
Court of First Instance of Cebu. On October 18, 1982, herein
petitioners had their said petition intestate proceeding
consolidated with Special Proceeding No. 3899-R in Branch II of
the Court of First Instance of Cebu and opposed thereat the
probate of the Testator's will and the appointment of a special
administrator for his estate. 5

Benoni Cabrera died on February 8, 1982 hence the probate


court, now known as Branch XV of the Regional Trial Court of
Cebu, appointed William Cabrera as special administrator on June
21, 1983. Thereafter, on July 20, 1983, it issued an order for the
return of the records of Special Proceeding No. 3965-R to the
archives since the testate proceeding for the probate of the will
had to be heard and resolved first. On March 26, 1984 the case
was reraffled and eventually assigned to Branch XII of the
Regional Trial Court of Cebu where it remained until the
conclusion of the probate proceedings. 6
In the course of the hearing in Special Proceeding No. 3899-R,
herein petitioners appeared as oppositors and objected to the
allowance of the testator's will on the ground that on the alleged
date of its execution, the testator was already in the poor state of
health such that he could not have possibly executed the same.
Petitioners likewise reiterated the issue as to the genuineness of
the signature of the testator therein. 7
On the other hand, one of the attesting witnesses, Cipriano
Labuca, and the notary public Atty. Filoteo Manigos, testified that
the testator executed the will in question in their presence while
he was of sound and disposing mind and that, contrary to the
assertions of the oppositors, Mateo Caballero was in good health
and was not unduly influenced in any way in the execution of his
will. Labuca also testified that he and the other witnesses attested
and signed the will in the presence of the testator and of each
other. The other two attesting witnesses were not presented in
the probate hearing as the had died by then. 8
On April 5, 1988, the probate court rendered a decision declaring
the will in question as the last will and testament of the late
Mateo Caballero, on the ratiocination that:

. . . The self-serving testimony of the two witnesses of the


oppositors cannot overcome the positive testimonies of Atty.
Filoteo Manigos and Cipriano Labuca who clearly told the Court
that indeed Mateo Caballero executed the Last Will and Testament
now marked Exhibit "C" on December 5, 1978. Moreover, the fact
that it was Mateo Caballero who initiated the probate of his Will
during his lifetime when he caused the filing of the original
petition now marked Exhibit "D" clearly underscores the fact that
this was indeed his Last Will. At the start, counsel for the
oppositors manifested that he would want the signature of Mateo
Caballero in Exhibit "C" examined by a handwriting expert of the
NBI but it would seem that despite their avowal and intention for
the examination of this signature of Mateo Caballero in Exhibit
"C", nothing came out of it because they abandoned the idea and
instead presented Aurea Caballero and Helen Caballero Campo as
witnesses for the oppositors.
All told, it is the finding of this Court that Exhibit "C" is the Last
Will and Testament of Mateo Caballero and that it was executed in
accordance with all the requisites of the law. 9
Undaunted by the said judgment of the probate court, petitioners
elevated the case in the Court of Appeals in CA-G.R. CV No.
19669. They asserted therein that the will in question is null and
void for the reason that its attestation clause is fatally defective
since it fails to specifically state that the instrumental witnesses
to the will witnessed the testator signing the will in their presence
and that they also signed the will and all the pages thereof in the
presence of the testator and of one another.
On October 15, 1991, respondent court promulgated its
decision 10 affirming that of the trial court, and ruling that the
attestation clause in the last will of Mateo Caballero substantially
complies with Article 805 of the Civil Code, thus:

The question therefore is whether the attestation clause in


question may be considered as having substantialy complied with
the requirements of Art. 805 of the Civil Code. What appears in
the attestation clause which the oppositors claim to be defective
is "we do certify that the testament was read by him and the
attestator, Mateo Caballero, has published unto us the foregoing
will consisting of THREE PAGES, including the acknowledgment,
each page numbered correlatively in letters of the upper part of
each page, as his Last Will and Testament, and he has signed the
same and every page thereof, on the spaces provided for his
signature and on the left hand margin in the presence of the said
testator and in the presence of each and all of us (emphasis
supplied).
To our thinking, this is sufficient compliance and no evidence need
be presented to indicate the meaning that the said will was
signed by the testator and by them (the witnesses) in the
presence of all of them and of one another. Or as the language of
the law would have it that the testator signed the will "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 not completely or
ideally perfect in accordance with the wordings of Art. 805 but
(sic) the phrase as formulated is in substantial compliance with
the requirement of the law." 11
Petitioners moved for the reconsideration of the said ruling of
respondent court, but the same was denied in the latter's
resolution of January 14, 1992, 12 hence this appeal now before
us. Petitioners assert that respondent court has ruled upon said
issue in a manner not in accord with the law and settled
jurisprudence on the matter and are now questioning once more,
on the same ground as that raised before respondent court, the
validity of the attestation clause in the last will of Mateo
Caballero.

We find the present petition to be meritorious, as we shall shortly


hereafter, after some prefatory observations which we feel should
be made in aid of the rationale for our resolution of the
controversy.
1. A will has been defined as a species of conveyance whereby a
person is permitted, with the formalities prescribed by law, to
control to a certain degree the disposition of his estate after his
death. 13 Under the Civil Code, there are two kinds of wills which a
testator may execute. 14 the first kind is the ordinary or attested
will, the execution of which is governed by Articles 804 to 809 of
the Code. Article 805 requires that:
Art. 805. Every will, other than a holographic will, must be
subscribed at the end thereof by the testator himself or by the
testator's name written by some other person in his presence,
and by his express direction, and attested and subscribed by
three or more credible witnesses in the presence of the testator
and of one another.
The testator or the person requested by him to write his name
and the instrumental witnesses of the will, shall also sign, as
aforesaid, each and every page thereof, except the last, on the
left margin, and all the pages shall be numbered correlatively in
letters placed on the upper part of each page.
The attestation should 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 witness,
it shall be interpreted to them.

In addition, the ordinary will must be acknowledged before a


notary public by a testator and the attesting witness. 15 hence it is
likewise known as notarial will. Where the attestator is deaf or
deaf-mute, Article 807 requires that he must personally read the
will, if able to do so. Otherwise, he should designate two persons
who would read the will and communicate its contents to him in a
practicable manner. On the other hand, if the testator is blind, the
will should be read to him twice; once, by anyone of the witnesses
thereto, and then again, by the notary public before whom it is
acknowledged. 16
The other kind of will is the holographic will, which Article 810
defines as one that is entirely written, dated, and signed by the
testator himself. This kind of will, unlike the ordinary type,
requires no attestation by witnesses. A common requirement in
both kinds of will is that they should be in writing and must have
been executed in a language or dialect known to the testator. 17
However, in the case of an ordinary or attested will, its attestation
clause need not be written in a language or dialect known to the
testator since it does not form part of the testamentary
disposition. Furthermore, the language used in the attestation
clause likewise need not even be known to the attesting
witnesses. 18 The last paragraph of Article 805 merely requires
that, in such a case, the attestation clause shall be interpreted to
said witnesses.
An attestation clause refers to that part of an ordinary will
whereby the attesting witnesses certify that the instrument has
been executed before them and to the manner of the execution
the same. 19 It is a separate memorandum or record of the facts
surrounding the conduct of execution and once signed by the
witnesses, it gives affirmation to the fact that compliance with the
essential formalities required by law has been observed. 20 It is
made for the purpose of preserving in a permanent form a record
of the facts that attended the execution of a particular will, so
that in case of failure of the memory of the attesting witnesses, or
other casualty, such facts may still be proved. 21

Under the third paragraph of Article 805, such a clause, the


complete lack of which would result in the invalidity of the
will, 22 should state (1) the number of the pages used upon which
the will is written; (2) that the testator signed, or expressly
caused another to sign, the will and every page thereof in the
presence of the attesting witnesses; and (3) that theattesting
witnesses witnessed the signing by the testator of the will and all
its pages, and that said witnesses also signed the will and every
page thereof in the presence of the testator and of one another.
The purpose of the law in requiring the clause to state the number
of pages on which the will is written is to safeguard against
possible interpolation or omission of one or some of its pages and
to prevent any increase or decrease in the pages; 23 whereas the
subscription of the signature of the testator and the attesting
witnesses is made for the purpose of authentication and
identification, and thus indicates that the will is the very same
instrument executed by the testator and attested to by the
witnesses. 24
Further, by attesting and subscribing to the will, the witnesses
thereby declare the due execution of the will as embodied in the
attestation clause. 25 The attestation clause, therefore, provide
strong legal guaranties for the due execution of a will and to
insure the authenticity thereof. 26 As it appertains only to the
witnesses and not to the testator, it need be signed only by
them. 27 Where it is left unsigned, it would result in the
invalidation of the will as it would be possible and easy to add the
clause on a subsequent occasion in the absence of the testator
and its witnesses. 28
In its report, the Code Commission commented on the reasons of
the law for requiring the formalities to be followed in the
execution of wills, in the following manner:

The underlying and fundamental objectives permeating the


provisions on the law on wills in this Project consists in the
liberalization of the manner of their execution with the end in
view of giving the testator more freedom in expressing his last
wishes, but with sufficient safeguards and restrictions to prevent
the commission of fraud and the exercise of undue and improper
pressure and influence upon the testator.
This objective is in accord with the modern tendency with respect
to the formalities in the execution of wills. . . . 29
2. An examination of the last will and testament of Mateo
Caballero shows that it is comprised of three sheets all of which
have been numbered correlatively, with the left margin of each
page thereof bearing the respective signatures of the testator and
the three attesting witnesses. The part of the will containing the
testamentary dispositions is expressed in the Cebuano-Visayan
dialect and is signed at the foot thereof by the testator. The
attestation clause in question, on the other hand, is recited in the
English language and is likewise signed at the end thereof by the
three attesting witnesses hereto. 30 Since it is the proverbial bone
of contention, we reproduce it again for facility of reference:
We, the undersigned attesting Witnesses, whose Residences and
postal addresses appear on the Opposite of our respective names,
we do hereby certify that the Testament was read by him and the
testator, MATEO CABALLERO; has published unto us the foregoing
Will consisting of THREE PAGES, including the Acknowledgment,
each page numbered correlatively in the letters on the upper part
of each page, as his Last Will and Testament and he has the same
and every page thereof, on the spaces provided for his signature
and on the left hand margin, in the presence of the said testator
and in the presence of each and all of us.

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.

What is fairly apparent upon a careful reading of the attestation


clause herein assailed is the fact that while it recites that the
testator indeed signed the will and all its pages in the presence of
the three attesting witnesses and states as well the number of
pages that were used, the same does not expressly state therein
the circumstance that said witnesses subscribed their respective
signatures to the will in the presence of the testator and of each
other.
The phrase "and he has signed the same and every page thereof,
on the spaces provided for his signature and on the left hand
margin," obviously refers to the testator and not the instrumental
witnesses as it is immediately preceded by the words "as his Last
Will and Testament." On the other hand, although the words "in
the presence of the testator and in the presence of each and all of
us" may, at first blush, appear to likewise signify and refer to the
witnesses, it must, however, be interpreted as referring only to
the testator signing in the presence of the witnesses since said
phrase immediately follows the words "he has signed the same
and every page thereof, on the spaces provided for his signature
and on the left hand margin." What is then clearly lacking, in the
final logical analysis , is the statement that the witnesses signed
the will and every page thereof in the presence of the testator
and of one another.
It is our considered view that the absence of that statement
required by law is a fatal defect or imperfection which must
necessarily result in the disallowance of the will that is here
sought to be admitted to probate. Petitioners are correct in
pointing out that the aforestated defect in the attestation clause
obviously cannot be characterized as merely involving the form of
the will or the language used therein which would warrant the
application of the substantial compliance rule, as contemplated in
the pertinent provision thereon in the Civil Code, to wit:

Art. 809. In the absence of bad faith, forgery, or fraud, or undue


and improper pressure and influence, defects and imperfections in
the form of attestation or in the language used therein shall not
render the will invalid if it is not proved that the will was in fact
executed and attested in substantial compliance with all the
requirements of article 805" (Emphasis supplied.)
While it may be true that the attestation clause is indeed
subscribed at the end thereof and at the left margin of each page
by the three attesting witnesses, it certainly cannot be
conclusively inferred therefrom that the said witness affixed their
respective signatures in the presence of the testator and of each
other since, as petitioners correctly observed, the presence of
said signatures only establishes the fact that it was indeed
signed, but it does not prove that the attesting witnesses did
subscribe to the will in the presence of the testator and of each
other. The execution of a will is supposed to be one act so that
where the testator and the witnesses sign on various days or
occasions and in various combinations, the will cannot be
stamped with the imprimatur of effectivity. 33
We believe that the further comment of former Justice J.B.L.
Reyes 34 regarding Article 809, wherein he urged caution in the
application of the substantial compliance rule therein, is correct
and should be applied in the case under consideration, as well as
to future cases with similar questions:
. . . 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 theses 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. (Emphasis
ours.)

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.

In the case at bar, contrarily, proof of the acts required to have


been performed by the attesting witnesses can be supplied by
only extrinsic evidence thereof, since an overall appreciation of
the contents of the will yields no basis whatsoever from with such
facts may be plausibly deduced. What private respondent insists
on are the testimonies of his witnesses alleging that they saw the
compliance with such requirements by the instrumental
witnesses, oblivious of the fact that he is thereby resorting to
extrinsic evidence to prove the same and would accordingly be
doing by the indirection what in law he cannot do directly.
4. Prior to the advent of the Civil Code on August 30, 1950, there
was a divergence of views as to which manner of interpretation
should be followed in resolving issues centering on compliance
with the legal formalities required in the execution of wills. The
formal requirements were at that time embodied primarily in
Section 618 of Act No. 190, the Code of Civil Procedure. Said
section was later amended by Act No. 2645, but the provisions
respecting said formalities found in Act. No. 190 and the
amendment thereto were practically reproduced and adopted in
the Civil Code.
One view advance the liberal or substantial compliance rule. This
was first laid down in the case of Abangan vs. Abangan, 36 where it
was held 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 guarantee
their truth and authenticity. Therefore, the laws on this subject
should be interpreted in such a way as to attain these primordial
ends. Nonetheless, it was also emphasized that 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, hence when an
interpretation already given assures such ends, any other
interpretation whatsoever that adds nothing but demands more
requisites entirely unnecessary, useless and frustrative of the
testator's last will, must be disregarded. The subsequent cases
of Avera vs. Garcia, 37 Aldaba vs. Roque, 38 Unson vs.
Abella, 39Pecson vs. Coronel, 40 Fernandez vs. Vergel de Dios, et
al., 41 and Nayve vs. Mojal, et al. 42 all adhered to this position.

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.

In the case of Sano vs. Quintana, supra, it was decided that an


attestation clause which does not recite that the witnesses signed
the will and each and every page thereof on the left margin in the
presence of the testator is defective, and such a defect annuls the
will. The case of Uy Coque vs. Sioca, supra, was cited, but the
case of Nayve vs. Mojal and Aguilar, supra, was not mentioned. In
contrast, is the decision in Nayve vs. Mojal and Aguilar, supra,
wherein it was held that the attestation clause must estate the
fact that the testator and the witnesses reciprocally saw the
signing of the will, for such an act cannot be proved by the mere
exhibition of the will, if it is not stated therein. It was also held
that the fact that the testator and the witnesses signed each and
every page of the will can be proved also by the mere
examination of the signatures appearing on the document itself,
and the omission to state such evident facts does not invalidate
the will.
It is a habit of courts to reaffirm or distinguish previous cases;
seldom do they admit inconsistency in doctrine. Yet here, unless
aided impossible to reconcile the Mojal and Quintana decisions.
They are fundamentally at variance. If we rely on one, we affirm.
If we rely on the other, we reverse.
In resolving this puzzling question of authority, three outstanding
points may be mentioned. In the first place, the Mojal, decision
was concurred in by only four members of the court, less than a
majority, with two strong dissenting opinions; the Quintana
decision was concurred in by seven members of the court, a clear
majority, with one formal dissent. In the second place, the Mojal
decision was promulgated in December, 1924, while the Quintana
decision was promulgated in December, 1925; the Quintana
decision was thus subsequent in point of time. And in the third
place, the Quintana decision is believed more nearly to conform
to the applicable provisions of the law.

The right to dispose of property by will is governed entirely by


statute. The law of the case is here found in section 61 of the
Code of Civil Procedure as amended by Act No. 2645, and in
section 634 of the same Code, as unamended. It is in part
provided in section 61, as amended that "No will . . .shall be
valid . . . unless . . .." It is further provided in the same section
that "The attestation shallstate the number of sheets or 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 three witnesses, and the latter witnessed and signed
the will and all pages thereof in the presence of the testator and
of each other." Codal section 634 provides that "The will shall be
disallowed in either of the following case: 1. If not executed
and attested as in this Act provided." The law not alone carefully
makes use of the imperative, but cautiously goes further and
makes use of the negative, to enforce legislative intention. It is
not within the province of the courts to disregard the legislative
purpose so emphatically and clearly expressed.
We adopt and reaffirm the decision in the case of Sano vs.
Quintana, supra, and, to the extent necessary, modify the
decision in the case of Nayve vs. Mojal and Aguilar, supra.
(Emphases in the original text).
But after the Gumban clarificatory pronouncement, there were
decisions of the Court that once more appeared to revive the
seeming diversity of views that was earlier threshed out therein.
The cases of Quinto vs. Morata, 49Rodriguez vs.
Alcala, 50 Enchevarria vs. Sarmiento, 51 and Testate Estate of
Toray 52 went the way of the ruling as restated in Gumban. But De
Gala vs. Gonzales, et al., 53 Rey vs. Cartagena, 54 De Ticson vs. De
Gorostiza, 55 Sebastian vs. Panganiban, 56 Rodriguez vs.
Yap, 57 Grey vs. Fabia, 58 Leynez vs. Leynez, 59 Martir vs.
Martir, 60 Alcala vs. De Villa, 61 Sabado vs.
Fernandez, 62 Mendoza vs. Pilapil, 63 and Lopez vs.
Liboro, 64 veered away from the strict interpretation rule and
established a trend toward an application of the liberal view.

The Code Commission, cognizant of such a conflicting welter of


views and of the undeniable inclination towards a liberal
construction, recommended the codification of the substantial
compliance rule, as it believed this rule to be in accord with the
modern tendency to give a liberal approach to the interpretation
of wills. Said rule thus became what is now Article 809 of the Civil
Code, with this explanation of the Code Commission:
The present law provides for only one form of executing a will,
and that is, in accordance with the formalities prescribed by
Section 618 of the Code of Civil Procedure as amended by Act No.
2645. The Supreme Court of the Philippines had previously upheld
the strict compliance with the legal formalities and had even said
that the provisions of Section 618 of the Code of Civil Procedure,
as amended regarding the contents of the attestation clause were
mandatory, and non-compliance therewith invalidated the will (Uy
Coque vs. Sioca, 43 Phil. 405). These decisions necessarily
restrained the freedom of the testator in disposing of his property.
However, in recent years the Supreme Court changed its attitude
and has become more liberal in the interpretation of the
formalities in the execution of wills. This liberal view is enunciated
in the cases ofRodriguez vs. Yap, G.R. No. 45924, May 18,
1939; Leynez vs. Leynez, G.R. No. 46097, October 18,
1939; Martir vs. Martir, G.R. No. 46995, June 21, 1940; and Alcala
vs. Villa, G.R. No. 47351, April 18, 1941.
In the above mentioned decisions of our Supreme Court, it has
practically gone back to the original provisions of Section 618 of
the Code of Civil Procedure before its amendment by Act No. 2645
in the year 1916. To turn this attitude into a legislative declaration
and to attain the main objective of the proposed Code in the
liberalization of the manner of executing wills, article 829 of the
Project is recommended, which reads:

"Art. 829. In the absence of bad faith, forgery, or fraud, or undue


and improper pressure and influence, defects and imperfections in
the form of attestation or in the language used therein shall not
render the will invalid if it is proved that the will was in fact
executed and attested in substantial compliance with all the
requirements of article 829."65
The so-called liberal rule, the Court said in Gil vs.
Murciano, 66 "does not offer any puzzle or difficulty, nor does it
open the door to serious consequences. The later decisions do tell
us when and where to stop; they draw the dividing line with
precision. They do not allow evidence aliunde to fill a void in any
part of the document or supply missing details that should appear
in the will itself. They only permit a probe into the will, an
exploration into its confines, to ascertain its meaning or to
determine the existence or absence of the requisite formalities of
law. This clear, sharp limitation eliminates uncertainty and ought
to banish any fear of dire results."
It may thus be stated that the rule, as it now stands, is that
omissions which can be supplied by an examination of the will
itself, without the need of resorting to extrinsic evidence, will not
be fatal and, correspondingly, would not obstruct the allowance to
probate of the will being assailed. However, those omissions
which cannot be supplied except by evidence aliunde would result
in the invalidation of the attestation clause and ultimately, of the
will itself.67
WHEREFORE, the petition is hereby GRANTED and the impugned
decision of respondent court is hereby REVERSED and SET ASIDE.
The court a quo is accordingly directed to forthwith DISMISS its
Special Proceeding No. 3899-R (Petition for the Probate of the Last
Will and Testament of Mateo Caballero) and to REVIVE Special
Proceeding No. 3965-R (In the matter of the Intestate Estate of
Mateo Caballero) as an active case and thereafter duly proceed
with the settlement of the estate of the said decedent.
SO ORDERED.

G.R. No. 176943


October 17, 2008
DANILO ALUAD, LEONORA ALUAD, DIVINA ALUAD, PROSPERO
ALUAD, and CONNIE ALUAD, petitioners,
vs.
ZENAIDO ALUAD, respondent.
DECISION
CARPIO MORALES, J.:
Petitioners mother, Maria Aluad (Maria), and respondent Zenaido
Aluad were raised by the childless spouses Matilde Aluad (Matilde)
and Crispin Aluad (Crispin).
Crispin was the owner of six lots identified as Lot Nos. 674, 675,
676, 677, 680, and 682 of the Pilar Cadastre, Capiz. After Crispin
died, his wife Matilde adjudicated the lots to herself. 1
On November 14, 1981, Matilde executed a document entitled
"Deed of Donation of Real Property Inter Vivos" 2(Deed of
Donation) in favor of petitioners mother Maria 3 covering all the
six lots which Matilde inherited from her husband Crispin. The
Deed of Donation provided:
That, for and in consideration of the love and affection of the
DONOR [Matilde] for the DONEE [Maria], the latter being adopted
and hav[ing] been brought up by the former the DONOR, by these
presents, transfer and convey, BY WAY OF DONATION, unto the
DONEE the property above-described, to become effective upon
the death of the DONOR, but in the event that the DONEE should
die before the DONOR, the present donation shall be deemed
rescinded and [of] no further force and effect; Provided, however,
that anytime during the lifetime of the DONOR or anyone of them
who should survive, they could use[,] encumber or even dispose
of any or even all of the parcels of land herein
donated.4 (Emphasis and underscoring supplied)
On September 30, 1986, Original Certificates of Title over Lot Nos.
674 and 676 were issued in Matildes name.
On August 26, 1991, Matilde sold Lot No. 676 to respondent by a
Deed of Absolute Sale of Real Property.5

Subsequently or on January 14, 1992, Matilde executed a last will


and testament,6 devising Lot Nos. 675, 677, 682, and 680 to
Maria, and her "remaining properties" including Lot No. 674 to
respondent.
Matilde died on January 25, 1994, while Maria died on September
24 of the same year.7
On August 21, 1995, Marias heirs-herein petitioners filed before
the Regional Trial Court (RTC) of Roxas City a Complaint, 8 for
declaration and recovery of ownership and possession of Lot
Nos. 674 and 676, and damages against respondent, alleging:
That in 1978, plaintiff[s] possessed the two (2) parcels of land
above-described until January 1991 when defendant entered and
possessed the two (2) parcels of land claiming as the adopted son
of Crispin Aluad who refused to give back possession until Matilde
Aluad died in [1994] and then retained the possession thereof up
to and until the present time, thus, depriving the plaintiffs of the
enjoyment of said parcels of land x x x;
That after the death of Matilde R. Aluad, the plaintiffs succeeded
by inheritance by right of representation from their deceased
mother, Maria Aluad who is the sole and only daughter of Matilde
Aluad[.]9
To the complaint respondent alleged in his Answer. 10
That Lot 674 is owned by the defendant as this lot was
adjudicated to him in the Last Will and Testament of Matilde Aluad
x x x while Lot 676 was purchased by him from Matilde Aluad.
These two lots are in his possession as true owners
thereof.11 (Underscoring supplied)
Petitioners later filed a Motion for Leave to Amend Complaint
Already Filed to Conform to Evidence12 to which it annexed an
Amended Complaint13 which cited the donation of the six lots via
Deed of Donation in favor of their mother Maria. Branch 15 of the
RTC granted the motion and admitted the Amended Complaint. 14

Respondent filed an Amended Answer15 contending, inter alia,


that the Deed of Donation is forged and falsified and petitioners
change of theory showed that "said document was not existing at
the time they filed their complaint and was concocted by them
after realizing that their false claim that their mother was the only
daughter of Matild[e] Aluad cannot in anyway be established by
them";16 and that if ever said document does exist, the same was
already revoked by Matilde "when [she] exercised all acts of
dominion over said properties until she sold Lot 676 to defendant
and until her death with respect to the other lots without any
opposition from Maria Aluad."17
The trial court, by Decision18 of September 20, 1996, held that
Matilde could not have transmitted any right over Lot
Nos. 674 and 676 to respondent, she having previously alienated
them to Maria via the Deed of Donation. Thus it disposed:
WHEREFORE, in view of the foregoing, judgment is hereby
rendered:
1. Declaring the plaintiffs as the rightful owners of the subject
Lots Nos. 674 and 676, Pilar Cadastre;
2. Ordering the defendant to deliver the possession of the subject
lots to the plaintiffs;
3. Ordering the defendant to pay the plaintiffs:
a. Thirty thousand pesos (P30,000.00) as attorneys fees;
b. Twenty thousand pesos (P20,000.00), representing the income
from subject Lot 676, a year from 1991 up to the time said lot is
delivered to the plaintiffs, together with the interest thereof at the
legal rate until fully paid;
c. Ten thousand pesos (P10,000.00), representing the income
from the subject Lot No. 674, a year from 1991 up to the time said
lot is delivered to the plaintiffs, plus legal interest thereof at the
legal rate until fully paid; and
d. The costs of the suit.
Defendants counterclaim is ordered dismissed for lack of merit.
SO ORDERED.19

On petitioners motion, the trial court directed the issuance of a


writ of execution pending appeal.20 Possession of the subject lots
appears to have in fact been taken by petitioners.
By Decision21 of August 10, 2006, the Court of Appeals reversed
the trial courts decision, it holding that the Deed of Donation was
actually a donation mortis causa, not inter vivos, and as such it
had to, but did not, comply with the formalities of a will. Thus, it
found that the Deed of Donation was witnessed by only two
witnesses and had no attestation clause which is not in
accordance with Article 805 of the Civil Code, reading:
Art. 805. Every will, other than a holographic will, must be
subscribed at the end thereof by the testator himself or by the
testators name written by some other person in his presence,
and by his express direction, and attested and subscribed by
three or more credible witnesses in the presence of the testator
and of one another.
The testator or the person requested by him to write his name
and the instrumental witnesses of the will shall, also sign, as
aforesaid, each and every page thereof, except the last on the left
margin and all the pages shall be numbered correlatively in
letters placed on the upper part of each page.
The attestation shall state the number of pages used upon which
the will is written, and the fact that that 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.
While the appellate court declared respondent as the rightful
owner of Lot No. 676, it did not so declare with respect to Lot No.
674, as Matildes last will and testament had not yet been
probated. Thus the Court of Appeals disposed:

WHEREFORE, finding the instant petition worthy of merit, the


same is hereby GRANTED and the Decision of the Regional Trial
Court of Roxas City, Branch 15, dated 20 September 1996, in Civil
Case No. V-6686 for declaration of ownership, recovery of
ownership and possession, and damages is REVERSED and SET
ASIDE.
A new one is entered in its stead declaring defendant-appellant as
the lawful owner of Lot [No.] 676of the Pilar Cadastre.
Accordingly, plaintiffs-appellees are directed to return the
possession of the said lot to the defendant-appellant.
Moreover, plaintiffs-appellees are ordered to pay P40,000.00 to
defendant-appellant as attorneys fees and litigation expenses.
Costs against plaintiffs-appellees.
SO ORDERED.22 (Emphasis in the original; underscoring supplied)
Their Motion for Reconsideration23 having been
denied,24 petitioners filed the present Petition for
Review,25contending that the Court of Appeals erred
I
X X X WHEN IT REVERSED THE DECISION OF THE COURT BELOW
(RTC, Branch 15, Roxas City) HOLDING THAT THE DEED OF
DONATION INTER VIVOS IN FAVOR OF PETITIONERS MOTHER IS IN
FACT A DONATION MORTIS CAUSA.
II
X X X WHEN IT RULED THAT RESPONDENT IS THE RIGHTFUL
OWNER OF LOT NO. 676 AS LOT BUYER ON THE BASIS OF A DEED
OF SALE EXECUTED BY THE DONOR WHO HAD NO MORE RIGHT
TO SELL THE SAME.
III
X X X WHEN IT FAILED TO DECLARE PETITIONERS THE RIGHTFUL
OWNER OF LOT NO. 674 AFTER HAVING RULED WHEN IT HELD
THAT RESPONDENT CANNOT BE DECLARED OWNER THEREOF.
IV

X X X WHEN IT HELD THAT THE ISSUANCE OF A WRIT OF


EXECUTION PENDING APPEAL IS IN VIOLATION OF PARAGRAPH (a)
SECTION 2, RULE 39, OF THE RULES OF COURT (AND ORDERING
PETITIONERS TO RETURN POSSESSION OF LOT 676 TO
RESPONDENT) AND ORDERING PETITIONERS TO PAY ATTORNEYS
FEES AND COST[S] OF SUIT.26
As did the appellate court, the Court finds the donation to
petitioners mother one of mortis causa, it having the following
characteristics:
(1) It conveys no title or ownership to the transferee before the
death of the transferor; or what amounts to the same thing, that
the transferor should retain the ownership (full or naked) and
control of the property while alive;
(2) That before the death of the transferor, the transfer should be
revocable by the transferor at will,ad nutum; but revocability may
be provided for indirectly by means of a reserved power in the
donor to dispose of the properties conveyed; and
(3) That the transfer should be void if the transferor should
survive the transferee.27 (Emphasis and underscoring supplied)
The phrase in the earlier-quoted Deed of Donation "to become
effective upon the death of the DONOR" admits of no other
interpretation than to mean that Matilde did not intend to transfer
the ownership of the six lots to petitioners mother during her
(Matildes) lifetime.28

The statement in the Deed of Donation reading "anytime during


the lifetime of the DONOR or anyone of them who should survive,
they could use, encumber or even dispose of any or even all the
parcels of land herein donated"29 means that Matilde retained
ownership of the lots and reserved in her the right to dispose
them. For the right to dispose of a thing without other limitations
than those established by law is an attribute of ownership. 30 The
phrase in the Deed of Donation "or anyone of them who should
survive" is of course out of sync. For the Deed of Donation clearly
stated that it would take effect upon the death of the donor,
hence, said phrase could only have referred to the donor Matilde.
Petitioners themselves concede that such phrase does not refer to
the donee, thus:
x x x [I]t is well to point out that the last provision (sentence) in
the disputed paragraph should only refer to Matilde Aluad, the
donor, because she was the only surviving spouse at the time the
donation was executed on 14 November 1981, as her husband
Crispin Aluad [] had long been dead as early as 1975. 31
The trial court, in holding that the donation was inter vivos,
reasoned:

x x x The donation in question is subject to a resolutory term or


period when the donor provides in the aforequoted provisions,
"but in the event that the DONEE should die before the DONOR,
the present donation shall be deemed rescinded and [of] no
further force and effect". When the donor provides that should the
"DONEE" xxx die before the DONOR, the present donation shall be
deemed rescinded and [of] no further force and effect" the logical
construction thereof is that after the execution of the subject
donation, the same became effective immediately and shall be
"deemed rescinded and [of] no further force and effect" upon the
arrival of a resolutory term or period, i.e., the death of the donee
which shall occur before that of the donor. Understandably, the
arrival of this resolutory term or period cannot rescind and render
of no further force and effect a donation which has never become
effective, because, certainly what donation is there to be
rescinded and rendered of no further force and effect upon the
arrival of said resolutory term or period if there was no donation
which was already effective at the time when the donee died?
32
(Underscoring supplied)
A similar ratio in a case had been brushed aside by this Court,
however, thus:
x x x [P]etitioners contend that the stipulation on rescission in
case petitioners [donee] die ahead of [donor] Cabatingan is a
resolutory condition that confirms the nature of the donation
as inter vivos.
Petitioners arguments are bereft of merit. 33
xxxx

x x x The herein subject deeds expressly provide that the


donation shall be rescinded in case [donees] the petitioners
predecease [the donor] Conchita Cabatingan. As stated in Reyes
v. Mosqueda, one of the decisive characteristics of a
donation mortis causa is that the transfer should be considered
void if the donor should survive the donee. This is exactly what
Cabatingan provided for in her donations. If she really intended
that the donation should take effect during her lifetime and that
the ownership of the properties donated to the donee or
independently of, and not by reason of her death, she would not
have expressed such proviso in the subject deeds. 34 (Underscoring
supplied)
As the Court of Appeals observed, "x x x [t]hat the donation
is mortis causa is fortified by Matildes acts of possession as she
continued to pay the taxes for the said properties which remained
under her name; appropriated the produce; and applied for free
patents for which OCTs were issued under her name." 35
The donation being then mortis causa, the formalities of a will
should have been observed36 but they were not, as it was
witnessed by only two, not three or more witnesses following
Article 805 of the Civil Code.37
Further, the witnesses did not even sign the attestation
clause38 the execution of which clause is a
requirementseparate from the subscription of the will and the
affixing of signatures on the left-hand margins of the pages of the
will. So the Court has emphasized:

x x x Article 805 particularly segregates the requirement that the


instrumental witnesses sign each page of the will from the
requisite that the will be "attested and subscribed by [the
instrumental witnesses]. The respective intents behind these two
classes of signature[s] are distinct from each other. The
signatures on the left-hand corner of every page signify, among
others, that the witnesses are aware that the page they are
signing forms part of the will. On the other hand, the signatures to
the attestation clause establish that the witnesses are referring to
the statements contained in the attestation clause itself. Indeed,
the attestation clause is separate and apart from the disposition
of the will. An unsigned attestation clause results in an unattested
will. Even if the instrumental witnesses signed the left-hand
margin of the page containing the unsigned attestation clause,
such signatures cannot demonstrate these witnesses
undertakings in the clause, since the signatures that do appear on
the page were directed towards a wholly different avowal.
x x x It is the witnesses, and not the testator, who are
required under Article 805 to state the number of pages used
upon which the will is written; the fact that the testator had
signed the will and every page thereof; and that they witnessed
and signed the will and all the pages thereof in the presence of
the testator and of one another. The only proof in the will that the
witnesses have stated these elemental facts would be their
signatures on the attestation clause.39 (Emphasis and
underscoring supplied)
Furthermore, the witnesses did not acknowledge the will before
the notary public,40 which is not in accordance with the
requirement of Article 806 of the Civil Code that every will must
be acknowledged before a notary public by the testator and the
witnesses.
More. The requirement that all the pages of the will must be
numbered correlatively in letters placed on the upper part of each
page was not also followed.41

The Deed of Donation which is, as already discussed, one of


mortis causa, not having followed the formalities of a will, it is
void and transmitted no right to petitioners mother. But even
assuming arguendo that the formalities were observed, since it
was not probated, no right to Lot Nos. 674 and 676 was
transmitted to Maria.42 Matilde thus validly disposed of Lot No.
674 to respondent by her last will and testament, subject of
course to the qualification that her (Matildes) will must be
probated. With respect to Lot No. 676, the same had, as
mentioned earlier, been sold by Matilde to respondent on August
26, 1991.
Petitioners nevertheless argue that assuming that the donation of
Lot No. 674 in favor of their mother is indeedmortis causa, hence,
Matilde could devise it to respondent, the lot should nevertheless
have been awarded to them because they had acquired it by
acquisitive prescription, they having been in continuous,
uninterrupted, adverse, open, and public possession of it in good
faith and in the concept of an owner since 1978. 43
Petitioners failed to raise the issue of acquisitive prescription
before the lower courts, however, they having laid their claim on
the basis of inheritance from their mother. As a general rule,
points of law, theories, and issues not brought to the attention of
the trial court cannot be raised for the first time on appeal. 44 For a
contrary rule would be unfair to the adverse party who would
have no opportunity to present further evidence material to the
new theory, which it could have done had it been aware of it at
the time of the hearing before the trial court. 45
WHEREFORE, the petition is DENIED.
SO ORDERED.
Holographic Wills (Arts 810-814)

G.R. No. L-38338 January 28, 1985

IN THE MATTER OF THE INTESTATE ESTATE OF ANDRES G. DE


JESUS AND BIBIANA ROXAS DE JESUS, SIMEON R. ROXAS & PEDRO
ROXAS DE JESUS, petitioners,
vs.
ANDRES R. DE JESUS, JR., respondent.
Raul S. Sison Law Office for petitioners.
Rafael Dinglasan, Jr. for heir M. Roxas.
Ledesma, Guytingco Velasco and Associates for Ledesa and A. R.
de Jesus.
GUTIERREZ, JR., J.:
This is a petition for certiorari to set aside the order of respondent
Hon. Jose C. Colayco, Presiding Judge Court of First Instance of
Manila, Branch XXI disallowing the probate of the holographic Will
of the deceased Bibiana Roxas de Jesus.
The antecedent facts which led to the filing of this petition are
undisputed.
After the death of spouses Andres G. de Jesus and Bibiana Roxas
de Jesus, Special Proceeding No. 81503 entitled "In the Matter of
the Intestate Estate of Andres G. de Jesus and Bibiana Roxas de
Jesus" was filed by petitioner Simeon R. Roxas, the brother of the
deceased Bibiana Roxas de Jesus.
On March 26, 1973, petitioner Simeon R. Roxas was appointed
administrator. After Letters of Administration had been granted to
the petitioner, he delivered to the lower court a document
purporting to be the holographic Will of the deceased Bibiana
Roxas de Jesus. On May 26, 1973, respondent Judge Jose Colayco
set the hearing of the probate of the holographic Win on July 21,
1973.

Petitioner Simeon R. Roxas testified that after his appointment as


administrator, he found a notebook belonging to the deceased
Bibiana R. de Jesus and that on pages 21, 22, 23 and 24 thereof, a
letter-win addressed to her children and entirely written and
signed in the handwriting of the deceased Bibiana R. de Jesus was
found. The will is dated "FEB./61 " and states: "This is my win
which I want to be respected although it is not written by a
lawyer. ...
The testimony of Simeon R. Roxas was corroborated by the
testimonies of Pedro Roxas de Jesus and Manuel Roxas de Jesus
who likewise testified that the letter dated "FEB./61 " is the
holographic Will of their deceased mother, Bibiana R. de Jesus.
Both recognized the handwriting of their mother and positively
Identified her signature. They further testified that their deceased
mother understood English, the language in which the
holographic Will is written, and that the date "FEB./61 " was the
date when said Will was executed by their mother.
Respondent Luz R. Henson, another compulsory heir filed an
"opposition to probate" assailing the purported holographic Will of
Bibiana R. de Jesus because a it was not executed in accordance
with law, (b) it was executed through force, intimidation and/or
under duress, undue influence and improper pressure, and (c) the
alleged testatrix acted by mistake and/or did not intend, nor could
have intended the said Will to be her last Will and testament at
the time of its execution.
On August 24, 1973, respondent Judge Jose C. Colayco issued an
order allowing the probate of the holographic Will which he found
to have been duly executed in accordance with law.
Respondent Luz Roxas de Jesus filed a motion for reconsideration
alleging inter alia that the alleged holographic Will of the
deceased Bibiana R. de Jesus was not dated as required by Article
810 of the Civil Code. She contends that the law requires that the
Will should contain the day, month and year of its execution and
that this should be strictly complied with.

On December 10, 1973, respondent Judge Colayco reconsidered


his earlier order and disallowed the probate of the holographic
Will on the ground that the word "dated" has generally been held
to include the month, day, and year. The dispositive portion of the
order reads:
WHEREFORE, the document purporting to be the holographic Will
of Bibiana Roxas de Jesus, is hereby disallowed for not having
been executed as required by the law. The order of August 24,
1973 is hereby set aside.
The only issue is whether or not the date "FEB./61 " appearing on
the holographic Will of the deceased Bibiana Roxas de Jesus is a
valid compliance with the Article 810 of the Civil Code which
reads:
ART. 810. A person may execute a holographic will which must be
entirely written, dated, and signed by the hand of the testator
himself. It is subject to no other form, and may be made in or out
of the Philippines, and need not be witnessed.
The petitioners contend that while Article 685 of the Spanish Civil
Code and Article 688 of the Old Civil Code require the testator to
state in his holographic Win the "year, month, and day of its
execution," the present Civil Code omitted the phrase Ao mes y
dia and simply requires that the holographic Will should be dated.
The petitioners submit that the liberal construction of the
holographic Will should prevail.

Respondent Luz Henson on the other hand submits that the


purported holographic Will is void for non-compliance with Article
810 of the New Civil Code in that the date must contain the year,
month, and day of its execution. The respondent contends that
Article 810 of the Civil Code was patterned after Section 1277 of
the California Code and Section 1588 of the Louisiana Code whose
Supreme Courts had consistently ruled that the required date
includes the year, month, and day, and that if any of these is
wanting, the holographic Will is invalid. The respondent further
contends that the petitioner cannot plead liberal construction of
Article 810 of the Civil Code because statutes prescribing the
formalities to be observed in the execution of holographic Wills
are strictly construed.
We agree with the petitioner.
This will not be the first time that this Court departs from a strict
and literal application of the statutory requirements regarding the
due execution of Wills. We should not overlook the liberal trend of
the Civil Code in the manner of execution of Wills, the purpose of
which, in case of doubt is to prevent intestacy
The underlying and fundamental objectives permeating the
provisions of the law on wigs in this Project consists in the
liberalization of the manner of their execution with the end in
view of giving the testator more freedom in expressing his last
wishes, but with sufficien safeguards and restrictions to prevent
the commission of fraud and the exercise of undue and improper
pressure and influence upon the testator.
This objective is in accord with the modem tendency with respect
to the formalities in the execution of wills. (Report of the Code
Commission, p. 103)
In Justice Capistrano's concurring opinion in Heirs of Raymundo
Castro v. Bustos (27 SCRA 327) he emphasized that:
xxx xxx xxx

... 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. ...

In particular, a complete date is required to provide against such


contingencies as that of two competing Wills executed on the
same day, or of a testator becoming insane on the day on which a
Will was executed (Velasco v. Lopez, 1 Phil. 720). There is no such
contingency in this case.
We have carefully reviewed the records of this case and found no
evidence of bad faith and fraud in its execution nor was there any
substitution of Wins and Testaments. There is no question that the
holographic Will of the deceased Bibiana Roxas de Jesus was
entirely written, dated, and signed by the testatrix herself and in
a language known to her. There is also no question as to its
genuineness and due execution. All the children of the testatrix
agree on the genuineness of the holographic Will of their mother
and that she had the testamentary capacity at the time of the
execution of said Will. The objection interposed by the oppositorrespondent Luz Henson is that the holographic Will is fatally
defective because the date "FEB./61 " appearing on the
holographic Will is not sufficient compliance with Article 810 of
the Civil Code. This objection is too technical to be entertained.
As a general rule, the "date" in a holographic Will should include
the day, month, and year of its execution. However, when as in
the case at bar, there is no appearance of fraud, bad faith, undue
influence and pressure and the authenticity of the Will is
established and the only issue is whether or not the date
"FEB./61" appearing on the holographic Will is a valid compliance
with Article 810 of the Civil Code, probate of the holographic Will
should be allowed under the principle of substantial compliance.
WHEREFORE, the instant petition is GRANTED. The order appealed
from is REVERSED and SET ASIDE and the order allowing the
probate of the holographic Will of the deceased Bibiana Roxas de
Jesus is reinstated.
SO ORDERED.

G.R. Nos. 83843-44

April 5, 1990

IN THE MATTER OF THE PETITION TO APPROVE THE WILL OF


MELECIO LABRADOR. SAGRADO LABRADOR (Deceased),
substituted by ROSITA LABRADOR, ENRICA LABRADOR, and
CRISTOBAL LABRADOR, petitioners-appellants,
vs.
COURT OF APPEALS, 1 GAUDENCIO LABRADOR, and JESUS
LABRADOR, respondents-appellees.
Benjamin C. Santos Law Offices for petitioners.
Rodrigo V. Fontelera for private respondents.

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.

Subsequently, on September 30, 1975, Jesus Labrador (now


deceased but substituted by his heirs), and Gaudencio Labrador
filed an opposition to the petition on the ground that the will has
been extinguished or revoked by implication of law, alleging
therein that on September 30, 1971, that is, before Melecio's
death, for the consideration of Six Thousand (P6,000) Pesos,
testator Melecio executed a Deed of Absolute Sale, selling,
transferring and conveying in favor of oppositors Jesus and
Gaudencio Lot No. 1916 and that as a matter of fact, O.C.T. No. P1652 had been cancelled by T.C.T. No. T-21178. Earlier however,
in 1973, Jesus Labrador sold said parcel of land to Navat for only
Five Thousand (P5,000) Pesos. (Rollo, p. 37)
Sagrado thereupon filed, on November 28, 1975, against his
brothers, Gaudencio and Jesus, for the annulment of said
purported Deed of Absolute Sale over a parcel of land which
Sagrado allegedly had already acquired by devise from their
father Melecio Labrador under a holographic will executed on
March 17, 1968, the complaint for annulment docketed as Civil
Case No. 934-I, being premised on the fact that the aforesaid
Deed of Absolute Sale is fictitious.
After both parties had rested and submitted their respective
evidence, the trial court rendered a joint decision dated February
28, 1985, allowing the probate of the holographic will and
declaring null and void the Deed of Absolute sale. The court a
quo had also directed the respondents (the defendants in Civil
Case No. 934-I) to reimburse to the petitioners the sum of
P5,000.00 representing the redemption price for the property paid
by the plaintiff-petitioner Sagrado with legal interest thereon from
December 20, 1976, when it was paid to vendee a retro.
Respondents appealed the joint decision to the Court of Appeals,
which on March 10, 1988 modified said joint decision of the
court a quo by denying the allowance of the probate of the will for
being undated and reversing the order of reimbursement.
Petitioners' Motion for Reconsideration of the aforesaid decision
was denied by the Court of Appeals, in the resolution of June 13,
1988. Hence, this petition.

Petitioners now assign the following errors committed by


respondent court, to wit:
I
THE COURT OF APPEALS ERRED IN NOT ALLOWING AND
APPROVING THE PROBATE OF THE HOLOGRAPHIC WILL OF THE
TESTATOR MELECIO LABRADOR; and
II
THE COURT OF APPEALS ERRED IN FINDING THAT THE ORDER OF
THE LOWER COURT DIRECTING THE REIMBURSEMENT OF THE FIVE
THOUSAND PESOS REPRESENTING THE REDEMPTION PRICE WAS
ERRONEOUS.
The alleged undated holographic will written in Ilocano translated
into English, is quoted as follows:
ENGLISH INTERPRETATION OF THE WILL OF THE
LATE MELECIO LABRADOR WRITTEN IN ILOCANO
BY ATTY. FIDENCIO L. FERNANDEZ
I First Page
This is also where it appears in writing of the place which is
assigned and shared or the partition in favor of SAGRADO
LABRADOR which is the fishpond located and known place as
Tagale.
And this place that is given as the share to him, there is a
measurement of more or less one hectare, and the boundary at
the South is the property and assignment share of ENRICA
LABRADOR, also their sister, and the boundary in the West is the
sea, known as the SEA as it is, and the boundary on the NORTH is
assignment belonging to CRISTOBAL LABRADOR, who likewise is
also their brother. That because it is now the time for me being
now ninety three (93) years, then I feel it is the right time for me
to partition the fishponds which were and had been bought or
acquired by us, meaning with their two mothers, hence there shall
be no differences among themselves, those among brothers and
sisters, for it is I myself their father who am making the
apportionment and delivering to each and everyone of them the
said portion and assignment so that there shall not be any cause
of troubles or differences among the brothers and sisters.

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."

Respondents are in error. The intention to show 17 March 1968 as


the date of the execution of the will is plain from the tenor of the
succeeding words of the paragraph. As aptly put by petitioner, the
will was not an agreement but a unilateral act of Melecio Labrador
who plainly knew that what he was executing was a will. The act
of partitioning and the declaration that such partitioning as the
testator's instruction or decision to be followed reveal that
Melecio Labrador was fully aware of the nature of the estate
property to be disposed of and of the character of the
testamentary act as a means to control the disposition of his
estate.
Anent the second issue of finding the reimbursement of the
P5,000 representing the redemption price as erroneous,
respondent court's conclusion is incorrect. When private
respondents sold the property (fishpond) with right to repurchase
to Navat for P5,000, they were actually selling property belonging
to another and which they had no authority to sell, rendering such
sale null and void. Petitioners, thus "redeemed" the property from
Navat for P5,000, to immediately regain possession of the
property for its disposition in accordance with the will. Petitioners
therefore deserve to be reimbursed the P5,000.
PREMISES CONSIDERED, the decision of the Court of Appeals
dated March 10, 1988 is hereby REVERSED. The holographic will
of Melecio Labrador is APPROVED and ALLOWED probate. The
private respondents are directed to REIMBURSE the petitioners
the sum of Five Thousand Pesos (P5,000.00).
SO ORDERED.

G.R. No. L-12190


August 30, 1958
TESTATE ESTATE OF FELICIDAD ESGUERRA ALTO-YAP deceased.
FAUSTO E. GAN, petitioner-appellant,
vs.
ILDEFONSO YAP, oppositor-appellee.

Benedicto C. Belran, Crispin D. Baizas and Roberto H. Benitez for


appellant.
Arturo M. Tolentino for appellee.
BENGZON, J.:
On November 20, 1951, Felicidad Esguerra Alto Yap died of heart
failure in the University of Santo Tomas Hospital, leaving
properties in Pulilan, Bulacan, and in the City of Manila.
On March 17, 1952, Fausto E. Gan initiated them proceedings in
the Manila court of first instance with a petition for the probate of
a holographic will allegedly executed by the deceased,
substantially in these words:
Nobyembre 5, 1951.
Ako, si Felicidad E. Alto-Yap, may asawa, at ganap na pag-iisip, ay
nagsasalaysay na ang aking kayamanan sa bayan ng Pulilan,
Bulacan ay aking ipinamamana sa aking mga kamag-anakang
sumusunod:
Vicente Esguerra,
5 Bahagi
Sr. .........................................
....
Fausto E.
2 Bahagi
Gan .......................................
..................
Rosario E.
2 Bahagi
Gan .......................................
..................
Filomena
1 Bahagi
Alto .......................................
...................
Beatriz
1 Bahagi
Alto .......................................
.......................

At ang aking lahat ng ibang kayamanan sa Maynila at iba


panglugar ay aking ipinamamana sa aking asawang si Idelfonso
D. Yap sa kondisyong siya'y magpapagawa ng isang Health Center
na nagkakahalaga ng di kukulangin sa halagang P60,000.00 sa
bayan ng Pulilan, Bulacan, na nakaukit ang aking pangalang
Felicidad Esguerra-Alto. At kung ito ay may kakulangan man ay
bahala na ang aking asawa ang magpuno upang matupad ang
aking kagustuhan.

(Lagda) Felicidad E. AltoYap.


Opposing the petition, her surviving husband Ildefonso Yap
asserted that the deceased had not left any will, nor executed any
testament during her lifetime.
After hearing the parties and considering their evidence, the Hon.
Ramon R. San Jose, Judge,1 refused to probate the alleged will. A
seventy-page motion for reconsideration failed. Hence this
appeal.
The will itself was not presented. Petitioner tried to establish its
contents and due execution by the statements in open court of
Felina Esguerra, Primitivo Reyes, Socorro Olarte and Rosario Gan
Jimenez, whose testimonies may be summarized as follows:
Sometime in 1950 after her last trip abroad, Felicidad Esguerra
mentioned to her first cousin, Vicente Esguerra, her desire to
make a will. She confided however that it would be useless if her
husband discovered or knew about it. Vicente consulted with
Fausto E. Gan, nephew of Felicidad, who was then preparing for
the bar examinations. The latter replied it could be done without
any witness, provided the document was entirely in her
handwriting, signed and dated by her. Vicente Esguerra lost no
time in transmitting the information, and on the strength of it, in
the morning of November 5, 1951, in her residence at Juan Luna
Street, Manila, Felicidad wrote, signed and dated a holographic
will substantially of the tenor above transcribed, in the presence
of her niece, Felina Esguerra (daughter of Vicente), who was
invited to read it. In the afternoon of that day, Felicidad was
visited by a distant relative, Primitivo Reyes, and she allowed him
to read the will in the presence of Felina Esguerra, who again read
it.
Nine days later, he had other visitors: Socorro Olarte a cousin,
and Rosario Gan Jimenez, a niece. To these she showed the will,
again in the presence of Felina Esguerra, who read it for the third
time.

When on November 19, 1951, Felicidad was confined at the U.S.T.


Hospital for her last illness, she entrusted the said will, which was
contained in a purse, to Felina Esguerra. But a few hours later,
Ildefonso Yap, her husband, asked Felina for the purse: and being
afraid of him by reason of his well-known violent temper, she
delivered it to him. Thereafter, in the same day, Ildefonso Yap
returned the purse to Felina, only to demand it the next day
shortly before the death of Felicidad. Again, Felina handed it to
him but not before she had taken the purse to the toilet, opened it
and read the will for the last time.2
From the oppositor's proof it appears that Felicidad Esguerra had
been suffering from heart disease for several years before her
death; that she had been treated by prominent physicians, Dr.
Agerico Sison, Dr. Agustin Liboro and others; that in May 1950
husband and wife journeyed to the United States wherein for
several weeks she was treated for the disease; that thereafter she
felt well and after visiting interesting places, the couple returned
to this country in August 1950. However, her ailment recurred,
she suffered several attacks, the most serious of which happened
in the early morning of the first Monday of November 1951 (Nov.
5). The whole household was surprised and alarmed, even the
teachers of the Harvardian Colleges occupying the lower floors
and of by the Yap spouses. Physician's help was hurriedly called,
and Dr. Tanjuaquio arrived at about 8:00 a.m., found the patient
hardly breathing, lying in bed, her head held high by her husband.
Injections and oxygen were administered. Following the doctor's
advice the patient stayed in bed, and did nothing the whole day,
her husband and her personal attendant, Mrs. Bantique,
constantly at her side. These two persons swore that Mrs.
Felicidad Esguerra Yap made no will, and could have made no will
on that day.

The trial judge refused to credit the petitioner's evidence for


several reasons, the most important of which were these: (a) if
according to his evidence, the decedent wanted to keep her will a
secret, so that her husband would not know it, it is strange she
executed it in the presence of Felina Esguerra, knowing as she did
that witnesses were unnecessary; (b) in the absence of a showing
that Felina was a confidant of the decedent it is hard to believe
that the latter would have allowed the former to see and read the
will several times; (c) it is improbable that the decedent would
have permitted Primitivo Reyes, Rosario Gan Jimenez and Socorro
Olarte to read her will, when she precisely wanted its contents to
remain a secret during her lifetime; (d) it is also improbable that
her purpose being to conceal the will from her husband she would
carry it around, even to the hospital, in her purse which could for
one reason or another be opened by her husband; (e) if it is true
that the husband demanded the purse from Felina in the U.S.T.
Hospital and that the will was there, it is hard to believe that he
returned it without destroying the will, the theory of the petitioner
being precisely that the will was executed behind his back for fear
he will destroy it.
In the face of these improbabilities, the trial judge had to accept
the oppositor's evidence that Felicidad did not and could not have
executed such holographic will.
In this appeal, the major portion of appellant's brief discussed the
testimony of the oppositor and of his witnesses in a vigorous
effort to discredit them. It appears that the same arguments, or
most of them, were presented in the motion to reconsider; but
they failed to induce the court a quo to change its mind. The
oppositor's brief, on the other hand, aptly answers the criticisms.
We deem it unnecessary to go over the same matters, because in
our opinion the case should be decided not on the weakness of
the opposition but on the strength of the evidence of the
petitioner, who has the burden of proof.

The Spanish Civil Code permitted the execution of holographic


wills along with other forms. The Code of Civil Procedure (Act 190)
approved August 7, 1901, adopted only one form, thereby
repealing the other forms, including holographic wills.
The New Civil Code effective in 1950 revived holographic wills in
its arts. 810-814. "A person may execute a holographic will which
must be entirely written, dated, and signed by the hand of the
testator himself. It is subject to no other form and may be made in
or out of the Philippines, and need not be witnessed."
This is indeed a radical departure from the form and solemnities
provided for wills under Act 190, which for fifty years (from 1901
to 1950) required wills to be subscribed by the testator and three
credible witnesses in each andevery page; such witnesses to
attest to the number of sheets used and to the fact that the
testator signed in their presence and that they signed in the
presence of the testator and of each other.
The object of such requirements it has been said, is to close the
door against bad faith and fraud, to prevent substitution of wills,
to guarantee their truth and authencity (Abangan vs. Abangan, 40
Phil., 476) and to avoid those who have no right to succeed the
testator would succeed him and be benefited with the probate of
same. (Mendoza vs. Pilapil, 40 Off. Gaz., 1855). However, formal
imperfections may be brushed aside when authenticity of the
instrument is duly proved. (Rodriguez vs Yap, 40 Off. Gaz. 1st
Supp. No. 3 p. 194.)
Authenticity and due execution is the dominant requirements to
be fulfilled when such will is submitted to the courts for
allowance. For that purpose the testimony of one of the
subscribing witnesses would be sufficient if there is no opposition
(Sec. 5, Rule 77). If there is, the three must testify, if available.
(Cabang vs. Delfinado, 34 Phil., 291; Tolentino vs. Francisco, 57
Phil., 742). From the testimony of such witnesses (and of other
additional witnesses) the court may form its opinion as to the
genuineness and authenticity of the testament, and the
circumstances its due execution.

Now, in the matter of holographic wills, no such guaranties of


truth and veracity are demanded, since as stated, they need no
witnesses; provided however, that they are "entirely written,
dated, and signed by the hand of the testator himself." The law, it
is reasonable to suppose, regards the document itself as material
proof of authenticity, and as its own safeguard, since it could at
any time, be demonstrated to be or not to be in the hands of
the testator himself. "In the probate of a holographic will" says the
New Civil Code, "it shall be necessary that at least one witness
who knows the handwriting and signature of the testator explicitly
declare that the will and the signature are in the handwriting of
the testator. If the will is contested, at least three such witnesses
shall be required. In the absence of any such witnesses, (familiar
with decedent's handwriting) and if the court deem it necessary,
expert testimony may be resorted to."
The witnesses so presented do not need to have seen the
execution of the holographic will. They may be mistaken in their
opinion of the handwriting, or they may deliberately lie in
affirming it is in the testator's hand. However, the oppositor may
present other witnesses who also know the testator's handwriting,
or some expert witnesses, who after comparing the will with other
writings or letters of the deceased, have come to the conclusion
that such will has not been written by the hand of the deceased.
(Sec. 50, Rule 123). And the court, in view of such contradictory
testimony may use its own visual sense, and decide in the face of
the document, whether the will submitted to it has indeed been
written by the testator.
Obviously, when the will itself is not submitted, these means of
opposition, and of assessing the evidence are not available. And
then the only guaranty of authenticity3 the testator's
handwriting has disappeared.

Therefore, the question presents itself, may a holographic will be


probated upon the testimony of witnesses who have allegedly
seen it and who declare that it was in the handwriting of the
testator? How can the oppositor prove that such document was
not in the testator's handwriting? His witnesses who know
testator's handwriting have not examined it. His experts can not
testify, because there is no way to compare the alleged testament
with other documents admittedly, or proven to be, in the
testator's hand. The oppositor will, therefore, be caught between
the upper millstone of his lack of knowledge of the will or the form
thereof, and the nether millstone of his inability to prove its
falsity. Again the proponent's witnesses may be honest and
truthful; but they may have been shown a faked document, and
having no interest to check the authenticity thereof have taken no
pains to examine and compare. Or they may be perjurers boldly
testifying, in the knowledge that none could convict them of
perjury, because no one could prove that they have not "been
shown" a document which they believed was in the handwriting of
the deceased. Of course, the competency of such perjured
witnesses to testify as to the handwriting could be tested by
exhibiting to them other writings sufficiently similar to those
written by the deceased; but what witness or lawyer would not
foresee such a move and prepare for it? His knowledge of the
handwriting established, the witness (or witnesses) could simply
stick to his statement: he has seen and read a document which he
believed was in the deceased's handwriting. And the court and
the oppositor would practically be at the mercy of such witness
(or witnesses) not only as to the execution, but also as to the
contents of the will. Does the law permit such a situation?
The Rules of Court, (Rule 77) approved in 1940 allow proof (and
probate) of a lost or destroyed will by secondary evidence the
testimony of witnesses, in lieu of the original document. Yet such
Rules could not have contemplated holographic wills which could
not then be validly made here. (See also Sec. 46, Rule 123; Art.
830-New Civil Code.)
Could Rule 77 be extended, by analogy, to holographic wills?

Spanish commentators agree that one of the greatest objections


to the holographic will is that it may be lost or stolen 4 an
implied admission that such loss or theft renders it useless..
This must be so, because the Civil Code requires it to be
protocoled and presented to the judge, (Art. 689) who shall
subscribe it and require its identity to be established by the three
witnesses who depose that they have no reasonable doubt
that the will was written by the testator (Art. 691). And if the
judge considers that the identity of the will has been proven he
shall order that it be filed (Art. 693). All these, imply presentation
of the will itself. Art. 692 bears the same implication, to a greater
degree. It requires that the surviving spouse and the legitimate
ascendants and descendants be summoned so that they may
make "any statement they may desire to submit with respect to
the authenticity of the will." As it is universally admitted that the
holographic will is usually done by the testator and by himself
alone, to prevent others from knowing either its execution or its
contents, the above article 692 could not have the idea of simply
permitting such relatives to state whether they know of the will,
but whether in the face of the document itself they think the
testator wrote it. Obviously, this they can't do unless the will
itself is presented to the Court and to them.
Undoubtedly, the intention of the law is to give the near relatives
the choice of either complying with the will if they think it
authentic, or to oppose it, if they think it spurious. 5 Such purpose
is frustrated when the document is not presented for their
examination. If it be argued that such choice is not essential,
because anyway the relatives may oppose, the answer is that
their opposition will be at a distinct disadvantage, and they
have the right and privilege to comply with the will, if genuine, a
right which they should not be denied by withholding inspection
thereof from them.

We find confirmation of these ideas--about exhibition of the


document itself--in the decision of the Supreme Court of Spain of
June 5, 1925, which denied protocolization or probate to a
document containing testamentary dispositions in the handwriting
of the deceased, but apparently mutilated, the signature and
some words having been torn from it. Even in the face of
allegations and testimonial evidence (which was controverted),
ascribing the mutilation to the opponents of the will. The
aforesaid tribunal declared that, in accordance with the provision
of the Civil Code (Spanish) the will itself, whole and unmutilated,
must be presented; otherwise, it shall produce no effect.
Considerando que sentado lo anterior, y estableciendose en el
parrafo segundo del articulo 688 del Codigo civil, que para que
sea valido el testamento olografo debera estar escrito todo el y
firmado por testador, con expression del ao, mes y dia en que se
otorque, resulta evidente que para la validez y eficacia de esos
testamentos, no basta la demostracion mas o menos cumplida de
que cuando se otorgaron se Ilenaron todos esos requisitos, sino
que de la expresada redaccion el precepto legal, y por el tiempo
en que el verbo se emplea, se desprende la necesidad de que el
documento se encuentre en dichas condiciones en el momento de
ser presentado a la Autoridad competente, para au adveracion y
protocolizacion; y como consecuencia ineludible de ello, forzoso
es affirmar que el de autos carece de validez y aficacia, por no
estarfirmado por el testador, cualquiera que sea la causa de la
falta de firma, y sin perjuicio de las acciones que puedan ejercitar
los perjudicados, bien para pedir indemnizacion por el perjuicio a
la persona culpable, si la hubiere, o su castigo en via criminal si
procediere, por constituir dicha omision un defecto insubsanable .
...
This holding aligns with the ideas on holographic wills in the Fuero
Juzgo, admittedly the basis of the Spanish Civil Code provisions on
the matter.6

PRECEDENTES LEGALES--Fuero Juzgo, libro segundo, titulo V, ley


15--E depues que los herederos e sus fijos ovieren esta manda,
fasta ... annos muestrenla al obispo de la tierra, o al juez fasta VI
meses y el obispo o el juez tomen otros tales tres escritos, que
fuesen fechos por su mano daquel que fizo la manda; e por
aquellos escriptos, si semjara la letra de la manda, sea
confirmada la manda. E depues que todo esto fuere connoscido,
el obispo o el juez, o otras testimonios confirmen el escripto de la
manda otra vez, y en esta manera vala la manda. (Art. 689,
Scaevola--Codigo Civil.)
(According to the Fuero above, the will itself must be compared
with specimens of the testators handwriting.)
All of which can only mean: the courts will not distribute the
property of the deceased in accordance with his holographic will,
unless they are shown his handwriting and signature. 7
Parenthetically, it may be added that even the French Civil Law
considers the loss of the holographic will to be fatal. (Planiol y
Ripert, Derecho Civil Frances, traduccion por Diaz Cruz, 1946,
Tomo V, page 555).
Taking all the above circumstances together, we reach the
conclusion that the execution and the contents of a lost or
destroyed holographic will may not be proved by the bare
testimony of witnesses who have seen and/or read such will. 8
Under the provisions of Art. 838 of the New Civil Code, we are
empowered to adopt this opinion as a Rule of Court for the
allowance of such holographic wills. We hesitate, however, to
make this Rule decisive of this controversy, simultaneously with
its promulgation. Anyway, decision of the appeal may rest on the
sufficiency, rather the insufficiency, of the evidence presented by
petitioner Fausto E. Gan.

At this point, before proceeding further, it might be convenient to


explain why, unlike holographic wills, ordinary wills may be
proved by testimonial evidence when lost or destroyed. The
difference lies in the nature of the wills. In the first, the only
guarantee of authenticity is the handwriting itself; in the second,
the testimony of the subscribing or instrumental witnesses (and of
the notary, now). The loss of the holographic will entails the loss
of the only medium of proof; if the ordinary will is lost, the
subscribing witnesses are available to authenticate.
In the case of ordinary wills, it is quite hard to convince three
witnesses (four with the notary) deliberately to lie. And then their
lies could be checked and exposed, their whereabouts and acts on
the particular day, the likelihood that they would be called by the
testator, their intimacy with the testator, etc. And if they were
intimates or trusted friends of the testator they are not likely to
end themselves to any fraudulent scheme to distort his wishes.
Last but not least, they can not receive anything on account of
the will.
Whereas in the case of holographic wills, if oral testimony were
admissible9 only one man could engineer the fraud this way: after
making a clever or passable imitation of the handwriting and
signature of the deceased, he may contrive to let three honest
and credible witnesses see and read the forgery; and the latter,
having no interest, could easily fall for it, and in court they would
in all good faith affirm its genuineness and authenticity. The will
having been lost the forger may have purposely destroyed it in
an "accident" the oppositors have no way to expose the trick
and the error, because the document itself is not at hand. And
considering that the holographic will may consist of two or three
pages, and only one of them need be signed, the substitution of
the unsigned pages, which may be the most important ones, may
go undetected.

If testimonial evidence of holographic wills be permitted, one


more objectionable feature feasibility of forgery would be
added to the several objections to this kind of wills listed by
Castan, Sanchez Roman and Valverde and other well-known
Spanish Commentators and teachers of Civil Law. 10
One more fundamental difference: in the case of a lost will, the
three subscribing witnesses would be testifying to a fact which
they saw, namely the act of the testator of subscribing the will;
whereas in the case of a lost holographic will, the witnesses would
testify as to their opinion of the handwriting which they allegedly
saw, an opinion which can not be tested in court, nor directly
contradicted by the oppositors, because the handwriting itself is
not at hand.
Turning now to the evidence presented by the petitioner, we find
ourselves sharing the trial judge's disbelief. In addition to the
dubious circumstances described in the appealed decision, we
find it hard to believe that the deceased should show her will
precisely to relatives who had received nothing from it: Socorro
Olarte and Primitivo Reyes. These could pester her into amending
her will to give them a share, or threaten to reveal its execution to
her husband Ildefonso Yap. And this leads to another point: if she
wanted so much to conceal the will from her husband, why did
she not entrust it to her beneficiaries? Opportunity to do so was
not lacking: for instance, her husband's trip to Davao, a few days
after the alleged execution of the will.
In fine, even if oral testimony were admissible to establish and
probate a lost holographic will, we think the evidence submitted
by herein petitioner is so tainted with improbabilities and
inconsistencies that it fails to measure up to that "clear and
distinct" proof required by Rule 77, sec. 6. 11
Wherefore, the rejection of the alleged will must be sustained.
Judgment affirmed, with costs against petitioner.

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

IN THE MATTER OF THE PETITION TO APPROVE THE WILL OF


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

The appellees likewise moved for the consolidation of the case


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

Appellant's motion for reconsideration was denied. Hence, an


appeal to the Court of Appeals in which it is contended that the
dismissal of appellant's petition is contrary to law and well-settled
jurisprudence.
On July 7, 1980, appellees moved to forward the case to this
Court on the ground that the appeal does not involve question of
fact and alleged that the trial court committed the following
assigned errors:
I. THE LOWER COURT ERRED IN HOLDING THAT A LOST
HOLOGRAPHIC WILL MAY NOT BE PROVED BY A COPY THEREOF;
II. THE LOWER COURT ERRED IN HOLDING THAT THE DECEDENT
HAS DISCARDED BEFORE HIS DEATH THE MISSING HOLOGRAPHIC
WILL;
III. THE LOWER COURT ERRED IN DISMISSING APPELLANT'S WILL.

The only question here is whether a holographic will which was


lost or cannot be found can be proved by means of a photostatic
copy. Pursuant to Article 811 of the Civil Code, probate of
holographic wills is the allowance of the will by the court after its
due execution has been proved. The probate may be uncontested
or not. If uncontested, at least one Identifying witness is required
and, if no witness is available, experts may be resorted to. If
contested, at least three Identifying witnesses are required.
However, if the holographic will has been lost or destroyed and no
other copy is available, the will can not be probated because the
best and only evidence is the handwriting of the testator in said
will. It is necessary that there be a comparison between sample
handwritten statements of the testator and the handwritten will.
But, a photostatic copy or xerox copy of the holographic will may
be allowed because comparison can be made with the standard
writings of the testator. In the case of Gam vs. Yap, 104 PHIL. 509,
the Court ruled that "the execution and the contents of a lost or
destroyed holographic will may not be proved by the bare
testimony of witnesses who have seen and/or read such will. The
will itself must be presented; otherwise, it shall produce no effect.
The law regards the document itself as material proof of
authenticity." But, in Footnote 8 of said decision, it says that
"Perhaps it may be proved by a photographic or photostatic copy.
Even a mimeographed or carbon copy; or by other similar means,
if any, whereby the authenticity of the handwriting of the
deceased may be exhibited and tested before the probate court,"
Evidently, the photostatic or xerox copy of the lost or destroyed
holographic will may be admitted because then the authenticity
of the handwriting of the deceased can be determined by the
probate court.
WHEREFORE, the order of the lower court dated October 3, 1979,
denying appellant's motion for reconsideration dated August 9,
1979, of the Order dated July 23, 1979, dismissing her petition to
approve the will of the late Ricardo B. Bonilla, is hereby SET
ASIDE.
SO ORDERED.

G.R. No. L-14003


August 5, 1960
FEDERICO AZAOLA, petitioner-appellant,
vs.
CESARIO SINGSON, oppositor-appellee.
F. Lavides and L.B. Alcuaz for appellant.
Vicente J. Cuna and P.S. Singson for appellee.
REYES, J.B.L., J.:
This appeal, taken on points of law from a decision rendered on
15 January 1958 by the Court of First Instance of Quezon City in
its Special Proceedings No. Q-2640, involves the determination of
the quantity of evidence required for the probate of a holographic
will.
The established facts are thus summarized in the decision
appealed from (Rec. App. pp. 22-24):

"Briefly speaking, the following facts were established by the


petitioner; that on September 9, 1957, Fortunata S. Vda. de Yance
died at 13 Luskot, Quezon City, known to be the last residence of
said testatrix; that Francisco Azaola, petitioner herein for probate
of the holographic will, submitted the said holographic will (Exh.
C) whereby Maria Milagros Azaola was made the sole heir as
against the nephew of deceased Cesario Singson; that witness
Francisco Azaola testified that he saw the holographic will (Exh. C)
one month, more or less, before the death of the testatrix, as the
same was handed to him and his wife; that the witness testified
also that he recognized all the signatures appearing in the
holographic will (Exh. C) as the handwriting of the testatrix and to
reinforce said statement, witness presented the mortgage (Exh.
E), the special power of the attorney (Exh. F), and the general
power of attorney (Exh. F-1), besides the deeds of sale (Exhs. G
and G-1) including an affidavit (Exh. G-2), and that there were
further exhibited in court two residence certificates (Exhs. H and
H-1) to show the signatures of the testatrix, for comparison
purposes; that said witness, Azaola, testified that the penmanship
appearing in the aforesaid documentary evidence is in the
handwriting of the testatrix as well as the signatures appearing in
the aforesaid documentary evidence is in the handwriting of the
testatrix as well as the signatures appearing therein are the
signatures of the testatrix; that said witness, in answer to a
question of his counsel admitted that the holographic will was
handed to him by the testatrix. "apparently it must have been
written by her" (t.s.n., p. 11). However, on page 16 on the same
transcript of the stenographic notes, when the same witness was
asked by counsel if he was familiar with the penmanship and
handwriting of the deceased Fortunata Vda. de Yance, he
answered positively in the affirmative and when he was asked
again whether the penmanship referred to in the previous answer
as appearing in the holographic will (Exh. C) was hers (testatrix'),
he answered, "I would definitely say it is hers"; that it was also
established in the proceedings that the assessed value of the
property of the deceased in Luskot, Quezon City, is in the amount
of P7,000.00.

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:

La manera como esta concebida la redaccion del ultimo apartado


de dicho precepto induce la conclusion de que siempre o por lo
menos, en la mayor parte de los casos, el Juez debe acudir al
criterio pericial para que le ilustre acerca de la autenticidad del
testamento olografo, aunque ya esten insertas en los autos del
expediente las declaraciones testificales. La prudencia con que el
Juez debe de proceder en resoluciones de transcendencia asi lo
exige, y la indole delicada y peligrosa del testamento olografo lo
hace necesario para mayor garantia de todos los interes
comprometidos en aquel.
En efecto, el cotejo pericial de letras puede ser una confirmacion
facultativa del dicho profano de los testigos y un modo de
desvanecer las ultimas dudas que pudieran ocurrir al Juez acerca
de la autenticidad que trata de averigaur y declarar. Para eso se
ha escrito la frase del citado ultimo apartado, (siempre que el Juez
lo estime conveniente), haya habido o no testigos y dudaran o no
estos respecto de los extremos por que son preguntados.
El arbitrio judicial en este caso debe formarse con independencia
de los sucesos y de su significacion, para responder debidamente
de las resoluciones que haya de dictar.
And because the law leaves it to the trial court if experts are still
needed, no unfavourable inference can be drawn from a party's
failure to offer expert evidence, until and unless the court
expresses dissatisfaction with the testimony of the lay witnesses.
Our conclusion is that the rule of the first paragraph of Article 811
of the Civil Code is merely directory and is not mandatory.
Considering, however, that this is the first occasion in which this
Court has been called upon to construe the import of said article,
the interest of justice would be better served, in our opinion, by
giving the parties ample opportunity to adduce additional
evidence, including expert witnesses, should the Court deem
them necessary.
In view of the foregoing, the decision appealed from is set aside,
and the records ordered remanded to the Court of origin, with
instructions to hold a new trial in conformity with this opinion. But
evidence already on record shall not be retaken. No costs.

G.R. No. 123486


August 12, 1999
EUGENIA RAMONAL CODOY, and MANUEL RAMONAL, petitioners,
vs.
EVANGELINE R. CALUGAY, JOSEPHINE SALCEDO, and UEFEMIA
PATIGAS, respondents.
PARDO, J.:
Before us is a petition for review on certiorari of the decision of
the Court of Appeals1 and its resolution denying reconsideration,
ruling:
Upon the unrebutted testimony of appellant Evangeline Calugay
and witness Matilde Ramonal Binanay, the authenticity of
testators holographic will has been established and the
handwriting and signature therein (exhibit S) are hers, enough to
probate said will. Reversal of the judgment appealed from and the
probate of the holographic will in question be called for. The rule
is that after plaintiff has completed presentation of his evidence
and the defendant files a motion for judgment on demurrer to
evidence on the ground that upon the facts and the law plaintiff
has shown no right to relief, if the motion is granted and the order
to dismissal is reversed on appeal, the movant loses his right to
present evidence in his behalf (Sec, 1 Rule 35 Revised Rules of
Court). Judgment may, therefore, be rendered for appellant in the
instant case.
Wherefore, the order appealed from is REVERSED and judgment
rendered allowing the probate of the holographic will of the
testator Matilde Seo Vda. de Ramonal. 2
The facts are as follows:
On April 6, 1990, Evangeline Calugay, Josephine Salcedo and
Eufemia Patigas, devisees and legatees of the holographic will of
the deceased Matilde Seo Vda. de Ramonal, filed with the
Regional Trial Court, Misamis Oriental, Branch 18, a petition 3 for
probate of the holographic will of the deceased, who died on
January 16, 1990.

In the petition, respondents claimed that the deceased Matilde


Seo Vda. de Ramonal, was of sound and disposing mind when
she executed the will on August 30, 1978, that there was no
fraud, undue influence, and duress employed in the person of the
testator, and will was written voluntarily.
The assessed value of the decedent's property, including all real
and personal property was about P400,000.00, at the time of her
death.4
On June 28, 1990, Eugenia Ramonal Codoy and Manuel Ramonal
filed an opposition5 to the petition for probate, alleging that the
holographic will was a forgery and that the same is even illegible.
This gives an impression that a "third hand" of an interested party
other than the "true hand" of Matilde Seo Vda. de Ramonal
executed the holographic will.
Petitioners argued that the repeated dates incorporated or
appearing on will after every disposition is out of the ordinary. If
the deceased was the one who executed the will, and was not
forced, the dates and the signature should appear at the bottom
after the dispositions, as regularly done and not after every
disposition. And assuming that the holographic will is in the
handwriting of the deceased, it was procured by undue and
improper pressure and influence on the part of the beneficiaries,
or through fraud and trickery.1wphi1.nt
Respondents presented six (6) witnesses and various
documentary evidence. Petitioners instead of presenting their
evidence, filed a demurrer6 to evidence, claiming that
respondents failed to establish sufficient factual and legal basis
for the probate of the holographic will of the deceased Matilde
Seo Vda. de Ramonal.
On November 26, 1990, the lower Court issued an order, the
dispositive portion of which reads:

WHEREFORE, in view of the foregoing consideration, the Demurrer


to Evidence having being well taken, same is granted, and the
petition for probate of the document (Exhibit "S") on the
purported Holographic Will of the late Matilde Seo Vda. de
Ramonal, is denied for insufficiency of evidence and lack of
merits.7
On December 12, 1990, respondents filed a notice of appeal, 8 and
in support of their appeal, the respondents once again reiterated
the testimony of the following witnesses, namely: (1) Augusto
Neri; (2) Generosa Senon; (3) Matilde Ramonal Binanay; (4)
Teresita Vedad; (5) Fiscal Rodolfo Waga; and (6) Evangeline
Calugay.
To have a clear understanding of the testimonies of the witnesses,
we recite an account of their testimonies.
Augusto Neri, Clerk of Court, Court of First Instance of Misamis
Oriental, where the special proceedings for the probate of the
holographic will of the deceased was filed. He produced and
identified the records of the case. The documents presented bear
the signature of the deceased, Matilde Seo Vda. de Ramonal, for
the purpose of laying the basis for comparison of the handwriting
of the testatrix, with the writing treated or admitted as genuine
by the party against whom the evidence is offered.
Generosa Senon, election registrar of Cagayan de Oro, was
presented to produced and identify the voter's affidavit of the
decedent. However, the voters' affidavit was not produced for the
same was already destroyed and no longer available.

Matilde Ramonal Binanay, testified that the deceased Matilde


Seo Vda. de Ramonal was her aunt, and that after the death of
Matilde's husband, the latter lived with her in her parent's house
for eleven (11) years from 1958 to 1969. During those eleven (11)
years of close association the deceased, she acquired familiarity
with her signature and handwriting as she used to accompany her
(deceased Matilde Seo Vda. de Ramonal) in collecting rentals
from her various tenants of commercial buildings, and deceased
always issued receipts. In addition to this, she (witness Matilde
Binanay) assisted the deceased in posting the records of the
accounts, and carried personal letters of the deceased to her
creditors.
Matilde Ramonal Binanay further testified that at the time of the
death of Matilde Vda. de Ramonal, she left a holographic will
dated August 30, 1978, which was personally and entirely written,
dated and signed, by the deceased and that all the dispositions
therein, the dates, and the signatures in said will, were that of the
deceased.
Fiscal Rodolfo Waga testified that before he was appointed City
Fiscal of Cagayan de Oro, he was a practicing lawyer, and handled
all the pleadings and documents signed by the deceased in
connection with the proceedings of her late husband, as a result
of which he is familiar with the handwriting of the latter. He
testified that the signature appearing in the holographic will was
similar to that of the deceased, Matilde Seo Vda. de Ramonal,
but he can not be sure.
The fifth witness presented was Mrs. Teresita Vedad, an employee
of the Department of Environment and Natural Resources, Region
10. She testified that she processed the application of the
deceased for pasture permit and was familiar with the signature
of the deceased, since the signed documents in her presence,
when the latter was applying for pasture permit.

Finally, Evangeline Calugay, one of the respondents, testified that


she had lived with the deceased since birth, and was in fact
adopted by the latter. That after a long period of time she became
familiar with the signature of the deceased. She testified that the
signature appearing in the holographic will is the true and
genuine signature of Matilde Seo Vda. de Ramonal.
The holographic will which was written in Visayan, is translated in
English as follows:
Instruction
August 30, 1978
1. My share at Cogon, Raminal Street, for Evangeline Calugay.
(Sgd) Matilde Vda de Ramonal
August 30, 1978
2. Josefina Salcedo must be given 1,500 square meters at Pinikan
Street.
(Sgd) Matilde Vda de Ramonal
August 30, 1978
3. My jewelry's shall be divided among:
1. Eufemia Patigas
2. Josefina Salcedo
3. Evangeline Calugay
(Sgd) Matilde Vda de Ramonal
August 30, 1978
4. I bequeath my one (1) hectare land at Mandumol, Indahag to
Evangeline R. Calugay
(Sgd) Matilde Vda de Ramonal
August 30, 1978
5. Give the 2,500 Square Meters at Sta. Cruz Ramonal Village in
favor of Evangeline R. Calugay, Helen must continue with the Sta.
Cruz, once I am no longer around.
(Sgd) Matilde Vda de Ramonal
August 30, 1978
6. Bury me where my husband Justo is ever buried.
(Sgd) Matilde Vda de Ramonal

August 30, 1978


Gene and Manuel:
Follow my instruction in order that I will rest peacefully.
Mama
Matilde Vda de Ramonal
On October 9, 1995, the Court of Appeals, rendered
decision9 ruling that the appeal was meritorious. Citing the
decision in the case of Azaola vs. Singson, 109 Phil. 102, penned
by Mr. Justice J. B. L. Reyes, a recognized authority in civil law, the
Court of Appeals held:
. . . 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 the
holographic will, none being required by law (art. 810, new civil
code), it becomes obvious that the existence of witnesses
possessing the requisite qualifications is a matter beyond the
control of the proponent. For it is not merely a question of finding
and producing any three witnesses; they must be witnesses "who
know the handwriting and signature of the testator" and who can
declare (truthfully, of course, even if the law does not express)
"that the will and the signature are in the handwriting of the
testator." There may be no available witness acquainted with the
testator's hand; or even if so familiarized, the witness maybe
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 see, the law foresees, the possibility that no qualified


witness ma 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. Delfianado, 45 PHIL 291; Tolentino v.
Francisco, 57 PHIL 742). But it can not be ignored that the
requirement can be considered mandatory only in 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 Art. 811, the resort to expert evidence is conditioned
by the words "if the court deem it necessary", which reveal that
what the law deems essential is that the court should be
convinced of the will's authenticity. Where the prescribed number
of witnesses is produced and the court is convinced by their
testimony that the will is genuine, it may consider it unnecessary
to call for expert evidence. On the other hand, if no competent
witness is available, or none of those produced is convincing, the
court may still, and in fact it should resort to handwriting experts.
The duty of the court, in fine, is to exhaust all available lines of
inquiry, for the state is as much interested as the proponent that
the true intention of the testator be carried into effect.

Paraphrasing Azaola vs. Singson, even if the genuineness of the


holographic will were contested, Article 811 of the civil code
cannot be interpreted as to require the compulsory presentation
of three witnesses to identify the handwriting of the testator,
under penalty of the having the probate denied. No witness need
be present in the execution of the holographic will. And the rule
requiring the production of three witnesses is merely permissive.
What the law deems essential is that the court is convinced of the
authenticity of the will. Its duty is to exhaust all available lines of
inquiry, for the state is as much interested in the proponent that
the true intention of the testator be carried into effect. And
because the law leaves it to the trial court to decide if experts are
still needed, no unfavorable inference can be drawn from a
party's failure to offer expert evidence, until and unless the court
expresses dissatisfaction with the testimony of the lay
witnesses.10
According to the Court of Appeals, Evangeline Calugay, Matilde
Ramonal Binanay and other witnesses definitely and in no
uncertain terms testified that the handwriting and signature in the
holographic will were those of the testator herself.
Thus, upon the unrebutted testimony of appellant Evangeline
Calugay and witness Matilde Ramonal Binanay, the Court of
Appeals sustained the authenticity of the holographic will and the
handwriting and signature therein, and allowed the will to
probate.
Hence, this petition.
The petitioners raise the following issues:
(1) Whether or not the ruling of the case of Azaola vs. Singson,
109 Phil. 102, relied upon by the respondent Court of Appeals,
was applicable to the case.
(2) Whether or not the Court of Appeals erred in holding that
private respondents had been able to present credible evidence
to that the date, text, and signature on the holographic will
written entirely in the hand of the testatrix.

(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.

Matilde Ramonal Binanay, on the other hand, testified that:


Q. And you said for eleven (11) years Matilde Vda de Ramonal
resided with your parents at Pinikitan, Cagayan de Oro City. Would
you tell the court what was your occupation or how did Matilde
Vda de Ramonal keep herself busy that time?
A. Collecting rentals.
Q. From where?
A. From the land rentals and commercial buildings at PabayoGomez streets.12
xxx
xxx
xxx
Q. Who sometime accompany her?
A. I sometimes accompany her.
Q. In collecting rentals does she issue receipts?
A. Yes, sir.13
xxx
xxx
xxx
Q. Showing to you the receipt dated 23 October 1979, is this the
one you are referring to as one of the receipts which she issued to
them?
A. Yes, sir.
Q. Now there is that signature of Matilde vda. De Ramonal,
whose signature is that Mrs. Binanay?
A. Matilde vda. De Ramonal.
Q. Why do you say that is the signature of Matilde Vda. De
Ramonal?
A. I am familiar with her signature.
Q. Now, you tell the court Mrs. Binanay, whether you know
Matilde vda de Ramonal kept records of the accounts of her
tenants?
A. Yes, sir.
Q. Why do you say so?
A. Because we sometimes post a record of accounts in behalf of
Matilde Vda. De Ramonal.
Q. How is this record of accounts made? How is this reflected?
A. In handwritten.14

xxx
xxx
xxx
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
xxx
xxx
xxx
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
xxx
xxx
xxx
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
xxx
xxx
xxx

Q. Now, let us go to the third signature of Matilde Ramonal. Do


you know that there are retracings in the word Vda.?
A. Yes, a little. The letter L is continuous.
Q. And also in Matilde the letter L is continued to letter D?
A. Yes, sir.
Q. Again the third signature of Matilde Vda de Ramonal the letter
L in Matilde is continued towards letter D.
A. Yes, sir.
Q. And there is a retracing in the word Vda.?
A. Yes, sir.20
xxx
xxx
xxx
Q. Now, that was 1979, remember one year after the alleged
holographic will. Now, you identified a document marked as
Exhibit R. This is dated January 8, 1978 which is only about eight
months from August 30, 1978. Do you notice that the signature
Matilde Vda de Ramonal is beautifully written and legible?
A. Yes, sir the handwriting shows that she was very exhausted.
Q. You just say that she was very exhausted while that in 1978
she was healthy was not sickly and she was agile. Now, you said
she was exhausted?
A. In writing.
Q. How did you know that she was exhausted when you were not
present and you just tried to explain yourself out because of the
apparent inconsistencies?
A. That was I think. (sic).
Q. Now, you already observed this signature dated 1978, the
same year as the alleged holographic will. In exhibit I, you will
notice that there is no retracing; there is no hesitancy and the
signature was written on a fluid movement. . . . And in fact, the
name Eufemia R. Patigas here refers to one of the petitioners?
A. Yes, sir.
Q. You will also notice Mrs. Binanay that it is not only with the
questioned signature appearing in the alleged holographic will
marked as Exhibit X but in the handwriting themselves, here you
will notice the hesitancy and tremors, do you notice that?

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
xxx
xxx
xxx
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. Yes, sir I know her because she is my godmother the husband


is my godfather. Actually I am related to the husband by
consanguinity.
Q. Can you tell the name of the husband?
A. The late husband is Justo Ramonal. 24
xxx
xxx
xxx
Q. Can you tell this court whether the spouses Justo Ramonal
and Matilde Ramonal have legitimate children?
A. As far as I know they have no legitimate children. 25
xxx
xxx
xxx
Q. You said after becoming a lawyer you practice your
profession? Where?
A. Here in Cagayan de Oro City.
Q. Do you have services rendered with the deceased Matilde vda
de Ramonal?
A. I assisted her in terminating the partition, of properties.
Q. When you said assisted, you acted as her counsel? Any sort of
counsel as in what case is that, Fiscal?
A. It is about the project partition to terminate the property,
which was under the court before.26
xxx
xxx
xxx
Q. Appearing in special proceeding no. 427 is the amended
inventory which is marked as exhibit N of the estate of Justo
Ramonal and there appears a signature over the type written
word Matilde vda de Ramonal, whose signature is this?
A. That is the signature of Matilde Vda de Ramonal.
Q. Also in exhibit n-3, whose signature is this?
A. This one here that is the signature of Mrs. Matilde vda de
Ramonal.27
xxx
xxx
xxx
Q. Aside from attending as counsel in that Special Proceeding
Case No. 427 what were the other assistance wherein you were
rendering professional service to the deceased Matilde Vda de
Ramonal?

A. I can not remember if I have assisted her in other matters but


if there are documents to show that I have assisted then I can
recall.28
xxx
xxx
xxx
Q. Now, I am showing to you exhibit S which is titled "tugon",
kindly go over this document, Fiscal Waga and tell the court
whether you are familiar with the handwriting contained in that
document marked as exhibit "S"?
A. I am not familiar with the handwriting.
Q. This one, Matilde Vda de Ramonal, whose signature is this?
A. I think this signature here it seems to be the signature of Mrs.
Matilde vda de Ramonal.
Q. Now, in item No. 2 there is that signature here of Matilde Vda
de Ramonal, can you tell the court whose signature is this?
A. Well, that is similar to that signature appearing in the project
of partition.
Q. Also in item no. 3 there is that signature Matilde Vda de
Ramonal, can you tell the court whose signature is that?
A. As I said, this signature also seems to be the signature of
Matilde vda de Ramonal.
Q. Why do you say that?
A. Because there is a similarity in the way it is being written.
Q. How about this signature in item no. 4, can you tell the court
whose signature is this?
A. The same is true with the signature in item no. 4. It seems
that they are similar.29
xxx
xxx
xxx
Q. Mr. Prosecutor, I heard you when you said that the signature
of Matilde Vda de Ramonal Appearing in exhibit S seems to be the
signature of Matilde vda de Ramonal?
A. Yes, it is similar to the project of partition.
Q. So you are not definite that this is the signature of Matilde
vda de Ramonal. You are merely supposing that it seems to be her
signature because it is similar to the signature of the project of
partition which you have made?

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.

A visual examination of the holographic will convince us that the


strokes are different when compared with other documents
written by the testator. The signature of the testator in some of
the disposition is not readable. There were uneven strokes,
retracing and erasures on the will.
Comparing the signature in the holographic will dated August 30,
1978,33 and the signatures in several documents such as the
application letter for pasture permit dated December 30,
1980,34 and a letter dated June 16, 1978,35 the strokes are
different. In the letters, there are continuous flows of the strokes,
evidencing that there is no hesitation in writing unlike that of the
holographic will. We, therefore, cannot be certain that ruling
holographic will was in the handwriting by the deceased.
IN VIEW WHEREOF, the decision appealed from is SET ASIDE. The
records are ordered remanded to the court of origin with
instructions to allow petitioners to adduce evidence in support of
their opposition to the probate of the holographic will of the
deceased Matilde Seo vda. de Ramonal.1wphi1.nt
No costs.
SO ORDERED.

G.R. No. 106720 September 15, 1994


SPOUSES ROBERTO AND THELMA AJERO, petitioners,
vs.
THE COURT OF APPEALS AND CLEMENTE SAND, respondents.
Miguel D. Larida for petitioners.
Montilla Law Office for private respondent.
PUNO, J.:
This is an appeal by certiorari from the Decision of the Court of
Appeals 1 in CA-G.R. CV No. 22840, dated March 30, 1992, the
dispositive portion of which reads;

PREMISES CONSIDERED, the questioned decision of November 19,


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

For one, no evidence was presented to show that the will in


question is different from the will actually executed by the
testatrix. The only objections raised by the oppositors . . . are that
the will was not written in the handwriting of the testatrix which
properly refers to the question of its due execution, and not to the
question of identity of will. No other will was alleged to have been
executed by the testatrix other than the will herein presented.
Hence, in the light of the evidence adduced, the identity of the
will presented for probate must be accepted, i.e., the will
submitted in Court must be deemed to be the will actually
executed by the testatrix.
xxx xxx xxx
While the fact that it was entirely written, dated and signed in the
handwriting of the testatrix has been disputed, the petitioners,
however, have satisfactorily shown in Court that the holographic
will in question was indeed written entirely, dated and signed in
the handwriting of the testatrix. Three (3) witnesses who have
convincingly shown knowledge of the handwriting of the testatrix
have been presented and have explicitly and categorically
identified the handwriting with which the holographic will in
question was written to be the genuine handwriting and signature
of the testatrix. Given then the aforesaid evidence, the
requirement of the law that the holographic will be entirely
written, dated and signed in the handwriting of the testatrix has
been complied with.
xxx xxx xxx

As to the question of the testamentary capacity of the testratix,


(private respondent) Clemente Sand himself has testified in Court
that the testatrix was completely in her sound mind when he
visited her during her birthday celebration in 1981, at or around
which time the holographic will in question was executed by the
testatrix. To be of sound mind, it is sufficient that the testatrix, at
the time of making the will, knew the value of the estate to be
disposed of, the proper object of her bounty, and thecharacter of
the testamentary act . . . The will itself shows that the testatrix
even had detailed knowledge of the nature of her estate. She
even identified the lot number and square meters of the lots she
had conveyed by will. The objects of her bounty were likewise
identified explicitly. And considering that she had even written a
nursing book which contained the law and jurisprudence on will
and succession, there is more than sufficient showing that she
knows the character of the testamentary act.
In this wise, the question of identity of the will, its due execution
and the testamentary capacity of the testatrix has to be resolved
in favor of the allowance of probate of the will submitted herein.

Likewise, no evidence was presented to show sufficient reason for


the disallowance of herein holographic will. While it was alleged
that the said will was procured by undue and improper pressure
and influence on the part of the beneficiary or of some other
person, the evidence adduced have not shown any instance
where improper pressure or influence was exerted on the
testatrix. (Private respondent) Clemente Sand has testified that
the testatrix was still alert at the time of the execution of the
will, i.e., at or around the time of her birth anniversary celebration
in 1981. It was also established that she is a very intelligent
person and has a mind of her own. Her independence of character
and to some extent, her sense of superiority, which has been
testified to in Court, all show the unlikelihood of her being unduly
influenced or improperly pressured to make the aforesaid will. It
must be noted that the undue influence or improper pressure in
question herein only refer to the making of a will and not as to the
specific testamentary provisions therein which is the proper
subject of another proceeding. Hence, under the circumstances,
this Court cannot find convincing reason for the disallowance of
the will herein.
Considering then that it is a well-established doctrine in the law
on succession that in case of doubt, testate succession should be
preferred over intestate succession, and the fact that no
convincing grounds were presented and proven for the
disallowance of the holographic will of the late Annie Sand, the
aforesaid will submitted herein must be admitted to
probate. 3 (Citations omitted.)
On appeal, said Decision was reversed, and the petition for
probate of decedent's will was dismissed. The Court of Appeals
found that, "the holographic will fails to meet the requirements for
its validity." 4 It held that the decedent did not comply with
Articles 813 and 814 of the New Civil Code, which read, as
follows:

Art. 813: When a number of dispositions appearing in a


holographic will are signed without being dated, and the last
disposition has a signature and date, such date validates the
dispositions preceding it, whatever be the time of prior
dispositions.
Art. 814: In case of insertion, cancellation, erasure or alteration in
a holographic will, the testator must authenticate the same by his
full signature.
It alluded to certain dispositions in the will which were either
unsigned and undated, or signed but not dated. It also found that
the erasures, alterations and cancellations made thereon had not
been authenticated by decedent.
Thus, this appeal which is impressed with merit.
Section 9, Rule 76 of the Rules of Court provides that will shall be
disallowed in any of the following cases:
(a) If not executed and attested as required by law;
(b) If the testator was insane, or otherwise mentally incapable to
make a will, at the time of its execution;
(c) If it was executed under duress, or the influence of fear, or
threats;
(d) If it was procured by undue and improper pressure and
influence, on the part of the beneficiary, or of some other person
for his benefit;
(e) If the signature of the testator was procured by fraud or trick,
and he did not intend that the instrument should be his will at the
time of fixing his signature thereto.
In the same vein, Article 839 of the New Civil Code reads:
Art. 839: The will shall be disallowed in any of the following cases;
(1) If the formalities required by law have not been complied with;
(2) If the testator was insane, or otherwise mentally incapable of
making a will, at the time of its execution;
(3) If it was executed through force or under duress, or the
influence of fear, or threats;
(4) If it was procured by undue and improper pressure and
influence, on the part of the beneficiary or of some other person;

(5) If the signature of the testator was procured by fraud;


(6) If the testator acted by mistake or did not intend that the
instrument he signed should be his will at the time of affixing his
signature thereto.
These lists are exclusive; no other grounds can serve to disallow a
will. 5 Thus, in a petition to admit a holographic will to probate,
the only issues to be resolved are: (1) whether the instrument
submitted is, indeed, the decedent's last will and testament; (2)
whether said will was executed in accordance with the formalities
prescribed by law; (3) whether the decedent had the necessary
testamentary capacity at the time the will was executed; and, (4)
whether the execution of the will and its signing were the
voluntary acts of the decedent. 6
In the case at bench, respondent court held that the holographic
will of Anne Sand was not executed in accordance with the
formalities prescribed by law. It held that Articles 813 and 814 of
the New Civil Code, ante, were not complied with, hence, it
disallowed the probate of said will. This is erroneous.
We reiterate what we held in Abangan vs. Abangan, 40 Phil. 476,
479 (1919), 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. So when an interpretation already given
assures such ends, any other interpretation whatsoever, that adds
nothing but demands more requisites entirely unnecessary,
useless and frustrative of the testator's last will, must be
disregarded.
For purposes of probating non-holographic wills, these formal
solemnities include the subscription, attestation, and
acknowledgment requirements under Articles 805 and 806 of the
New Civil Code.

In the case of holographic wills, on the other hand, what assures


authenticity is the requirement that they be totally autographic or
handwritten by the testator himself, 7 as provided under Article
810 of the New Civil Code, thus:
A person may execute a holographic will which must be entirely
written, dated, and signed by the hand of the testator himself. It
is subject to no other form, and may be made in or out of the
Philippines, and need not be witnessed. (Emphasis supplied.)
Failure to strictly observe other formalities will not result in the
disallowance of a holographic will that is unquestionably
handwritten by the testator.
A reading of Article 813 of the New Civil Code shows that its
requirement affects the validity of the dispositions contained in
the holographic will, but not its probate. If the testator fails to sign
and date some of the dispositions, the result is that these
dispositions cannot be effectuated. Such failure, however, does
not render the whole testament void.
Likewise, a holographic will can still be admitted to probate,
notwithstanding non-compliance with the provisions of Article
814. In the case of Kalaw vs. Relova 132 SCRA 237 242 (1984),
this Court held:
Ordinarily, when a number of erasures, corrections, and
interlineations made by the testator in a holographic Will have not
been noted under his signature, . . . the Will is not thereby
invalidated as a whole, but at most only as respects the particular
words erased, corrected or interlined. Manresa gave an identical
commentary when he said "la omission de la salvedad no anula el
testamento, segun la regla de jurisprudencia establecida en la
sentencia de 4 de Abril de 1985." 8 (Citations omitted.)
Thus, unless the unauthenticated alterations, cancellations or
insertions were made on the date of the holographic will or on
testator's signature, 9 their presence does not invalidate the will
itself. 10 The lack of authentication will only result in disallowance
of such changes.

It is also proper to note that the requirements of authentication of


changes and signing and dating of dispositions appear in
provisions (Articles 813 and 814) separate from that which
provides for the necessary conditions for the validity of the
holographic will (Article 810). The distinction can be traced to
Articles 678 and 688 of the Spanish Civil Code, from which the
present provisions covering holographic wills are taken. They read
as follows:
Art. 678: A will is called holographic when the testator writes it
himself in the form and with the requisites required in Article 688.
Art. 688: Holographic wills may be executed only by persons of
full age.
In order that the will be valid it must be drawn on stamped paper
corresponding to the year of its execution, written in its entirety
by the testator and signed by him, and must contain a statement
of the year, month and day of its execution.
If it should contain any erased, corrected, or interlined words, the
testator must identify them over his signature.
Foreigners may execute holographic wills in their own language.
This separation and distinction adds support to the interpretation
that only the requirements of Article 810 of the New Civil Code
and not those found in Articles 813 and 814 of the same Code
are essential to the probate of a holographic will.
The Court of Appeals further held that decedent Annie Sand could
not validly dispose of the house and lot located in Cabadbaran,
Agusan del Norte, in its entirety. This is correct and must be
affirmed.

As a general rule, courts in probate proceedings are limited to


pass only upon the extrinsic validity of the will sought to be
probated. However, in exceptional instances, courts are not
powerless to do what the situation constrains them to do, and
pass upon certain provisions of the will. 11 In the case at bench,
decedent herself indubitably stated in her holographic will that
the Cabadbaran property is in the name of her late father, John H.
Sand (which led oppositor Dr. Jose Ajero to question her
conveyance of the same in its entirety). Thus, as correctly held by
respondent court, she cannot validly dispose of the whole
property, which she shares with her father's other heirs.
IN VIEW WHEREOF, the instant petition is GRANTED. The Decision
of the Court of Appeals in CA-G.R. CV No. 22840, dated March 30,
1992, is REVERSED and SET ASIDE, except with respect to the
invalidity of the disposition of the entire house and lot in
Cabadbaran, Agusan del Norte. The Decision of the Regional Trial
Court of Quezon City, Branch 94 in Sp. Proc. No. Q-37171, dated
November 19, 1988, admitting to probate the holographic will of
decedent Annie Sand, is hereby REINSTATED, with the above
qualification as regards the Cabadbaran property. No costs.
SO ORDERED.

G.R. No. L-40207 September 28, 1984


ROSA K. KALAW, petitioner,
vs.
HON. JUDGE BENJAMIN RELOVA, Presiding Judge of the CFI of
Batangas, Branch VI, Lipa City, and GREGORIO K.
KALAW, respondents.
Leandro H. Fernandez for petitioner.
Antonio Quintos and Jose M. Yacat for respondents.
MELENCIO-HERRERA, J.:

On September 1, 1971, private respondent GREGORIO K. KALAW,


claiming to be the sole heir of his deceased sister, Natividad K.
Kalaw, filed a petition before the Court of First Instance of
Batangas, Branch VI, Lipa City, for the probate of her holographic
Will executed on December 24, 1968.
The holographic Will reads in full as follows:
My Last will and Testament
In the name of God, Amen.
I Natividad K. Kalaw Filipino 63years of age, single, and a resident
of Lipa City, being of sound and disposing mind and memory, do
hereby declare thus to be my last will and testament.
1. It is my will that I'll be burried in the cemetery of the catholic
church of Lipa City. In accordance with the rights of said Church,
and that my executrix hereinafter named provide and erect at the
expose of my state a suitable monument to perpetuate my
memory.
xxx xxx xxx
The holographic Will, as first written, named ROSA K. Kalaw, a
sister of the testatrix as her sole heir. Hence, on November 10,
1971, petitioner ROSA K. Kalaw opposed probate alleging, in
substance, that the holographic Will contained alterations,
corrections, and insertions without the proper authentication by
the full signature of the testatrix as required by Article 814 of the
Civil Code reading:
Art. 814. In case of any insertion, cancellation, erasure or
alteration in a holographic will the testator must authenticate the
same by his full signature.
ROSA's position was that the holographic Will, as first written,
should be given effect and probated so that she could be the sole
heir thereunder.
After trial, respondent Judge denied probate in an Order, dated
September 3, 197 3, reading in part:

The document Exhibit "C" was submitted to the National Bureau


of Investigation for examination. The NBI reported that the
handwriting, the signature, the insertions and/or additions and the
initial were made by one and the same person. Consequently,
Exhibit "C" was the handwriting of the decedent, Natividad K.
Kalaw. The only question is whether the win, Exhibit 'C', should be
admitted to probate although the alterations and/or insertions or
additions above-mentioned were not authenticated by the full
signature of the testatrix pursuant to Art. 814 of the Civil Code.
The petitioner contends that the oppositors are estopped to
assert the provision of Art. 814 on the ground that they
themselves agreed thru their counsel to submit the Document to
the NBI FOR EXAMINATIONS. This is untenable. The parties did not
agree, nor was it impliedly understood, that the oppositors would
be in estoppel.
The Court finds, therefore, that the provision of Article 814 of the
Civil Code is applicable to Exhibit "C". Finding the insertions,
alterations and/or additions in Exhibit "C" not to be authenticated
by the full signature of the testatrix Natividad K. Kalaw, the Court
will deny the admission to probate of Exhibit "C".
WHEREFORE, the petition to probate Exhibit "C" as the
holographic will of Natividad K. Kalaw is hereby denied.
SO ORDERED.
From that Order, GREGORIO moved for reconsideration arguing
that since the alterations and/or insertions were the testatrix, the
denial to probate of her holographic Will would be contrary to her
right of testamentary disposition. Reconsideration was denied in
an Order, dated November 2, 1973, on the ground that "Article
814 of the Civil Code being , clear and explicit, (it) requires no
necessity for interpretation."

From that Order, dated September 3, 1973, denying probate, and


the Order dated November 2, 1973 denying reconsideration,
ROSA filed this Petition for Review on certiorari on the sole legal
question of whether or not theoriginal unaltered text after
subsequent alterations and insertions were voided by the Trial
Court for lack of authentication by the full signature of the
testatrix, should be probated or not, with her as sole heir.
Ordinarily, when a number of erasures, corrections, and
interlineations made by the testator in a holographic Will litem not
been noted under his signature, ... the Will is not thereby
invalidated as a whole, but at most only as respects the particular
words erased, corrected or interlined.1 Manresa gave an Identical
commentary when he said "la omision de la salvedad no anula el
testamento, segun la regla de jurisprudencia establecida en la
sentencia de 4 de Abril de 1895." 2
However, when as in this case, the holographic Will in dispute had
only one substantial provision, which was altered by substituting
the original heir with another, but which alteration did not carry
the requisite of full authentication by the full signature of the
testator, the effect must be that the entire Will is voided or
revoked for the simple reason that nothing remains in the Will
after that which could remain valid. To state that the Will as first
written should be given efficacy is to disregard the seeming
change of mind of the testatrix. But that change of mind can
neither be given effect because she failed to authenticate it in the
manner required by law by affixing her full signature,
The ruling in Velasco, supra, must be held confined to such
insertions, cancellations, erasures or alterations in a holographic
Will, which affect only the efficacy of the altered words
themselves but not the essence and validity of the Will itself. As it
is, with the erasures, cancellations and alterations made by the
testatrix herein, her real intention cannot be determined with
certitude. As Manresa had stated in his commentary on Article
688 of the Spanish Civil Code, whence Article 814 of the new Civil
Code was derived:

... No infringe lo dispuesto en este articulo del Codigo (el 688) la


sentencia que no declara la nulidad de un testamento olografo
que contenga palabras tachadas, enmendadas o entre renglones
no salvadas por el testador bajo su firnia segun previene el
parrafo tercero del mismo, porque, en realidad, tal omision solo
puede afectar a la validez o eficacia de tales palabras, y nunca al
testamento mismo, ya por estar esa disposicion en parrafo aparte
de aquel que determine las condiciones necesarias para la validez
del testamento olografo, ya porque, de admitir lo contrario, se
Ilegaria al absurdo de que pequefias enmiendas no salvadas, que
en nada afectasen a la parte esencial y respectiva del
testamento, vinieran a anular este, y ya porque el precepto
contenido en dicho parrafo ha de entenderse en perfecta armonia
y congruencia con el art. 26 de la ley del Notariado que declara
nulas las adiciones apostillas entrerrenglonados, raspaduras y
tachados en las escrituras matrices, siempre que no se salven en
la forma prevenida, paro no el documento que las contenga, y con
mayor motivo cuando las palabras enmendadas, tachadas, o
entrerrenglonadas no tengan importancia ni susciten duda alguna
acerca del pensamiento del testador, o constituyan meros
accidentes de ortografia o de purez escrituraria, sin trascendencia
alguna(l).
Mas para que sea aplicable la doctrina de excepcion contenida en
este ultimo fallo, es preciso que las tachaduras, enmiendas o
entrerrenglonados sin salvar saan de pala bras que no afecter4
alteren ni uarien de modo substancial la express voluntad del
testador manifiesta en el documento. Asi lo advierte la sentencia
de 29 de Noviembre de 1916, que declara nulo un testamento
olografo por no estar salvada por el testador la enmienda del
guarismo ultimo del ao en que fue extendido 3(Emphasis ours).
WHEREFORE, this Petition is hereby dismissed and the Decision of
respondent Judge, dated September 3, 1973, is hereby affirmed in
toto. No costs.
SO ORDERED.
Plana, Gutierrez, Jr. and De la Fuente, JJ., concur.
Relova, J., took no part.

Rules on Conflict of Laws (Arts. 815-819)


G.R. No. L-20234
December 23, 1964
PAULA DE LA CERNA, ET AL., petitioners,
vs.
MANUELA REBACA POTOT, ET AL., and THE HONORABLE COURT
OF APPEALS, respondents.
Philip M. Alo and Crispin M. Menchavez for petitioners.
Nicolas Jumapao for respondents.
REYES, J.B.L., J.:
Appeal by Paula de la Cerna and others from a decision of the
Court of Appeals, Sixth Division (C.A.-G.R. No. 23763-R) reversing
that of the Court of First Instance of Cebu (Civ. Case No. R-3819)
and ordering the dismissal of an action for partition.
The factual background appears in the following portion of the
decision of the Court of Appeals (Petition, Annex A, pp. 2-4):

It appears that on May 9, 1939, the spouses, Bernabe de la Serna


and Gervasia Rebaca, executed a joint last will and testament in
the local dialect whereby they willed that "our two parcels of land
acquired during our marriage together with all improvements
thereon shall be given to Manuela Rebaca, our niece, whom we
have nurtured since childhood, because God did not give us any
child in our union, Manuela Rebaca being married to Nicolas
Potot", and that "while each of the testators is yet living, he or she
will continue to enjoy the fruits of the two lands aforementioned",
the said two parcels of land being covered by Tax No. 4676 and
Tax No. 6677, both situated in sitio Bucao, barrio Lugo,
municipality of Borbon, province of Cebu. Bernabe dela Serna died
on August 30, 1939, and the aforesaid will was submitted to
probate by said Gervasia and Manuela before the Court of First
Instance of Cebu which, after due publication as required by law
and there being no opposition, heard the evidence, and, by Order
of October 31, 1939; in Special Proceedings No. 499, "declara
legalizado el documento Exhibit A como el testamento y ultima
voluntad del finado Bernabe de la Serna con derecho por parte du
su viuda superstite Gervasia Rebaca y otra testadora al propio
tiempo segun el Exhibit A de gozar de los frutos de los terranos
descritos en dicho documents; y habido consideracion de la
cuantia de dichos bienes, se decreta la distribucion sumaria de los
mismos en favor de la logataria universal Manuela Rebaca de
Potot previa prestacion por parte de la misma de una fianza en la
sum de P500.00 para responder de cualesquiera reclamaciones
que se presentare contra los bienes del finado Bernabe de la
Serna de los aos desde esta fecha" (Act Esp. 499, Testamentaria
Finado Bernabe de la Serna) Upon the death of Gervasia Rebaca
on October 14, 1952, another petition for the probate of the same
will insofar as Gervasia was concerned was filed on November 6,
1952, being Special Proceedings No. 1016-R of the same Court of
First Instance of Cebu, but for failure of the petitioner, Manuela R.
Potot and her attorney, Manuel Potot to appear, for the hearing of
said petition, the case was dismissed on March 30, 1954 Spec.
Proc. No. 1016-R, In the matter of the Probate of the Will of
Gervasia Rebaca).

The Court of First Instance ordered the petition heard and


declared the testament null and void, for being executed contrary
to the prohibition of joint wills in the Civil Code (Art. 669, Civil
Code of 1889 and Art. 818, Civil Code of the Philippines); but on
appeal by the testamentary heir, the Court of Appeals reversed,
on the ground that the decree of probate in 1939 was issued by a
court of probate jurisdiction and conclusive on the due execution
of the testament. Further, the Court of Appeals declared that:
... . It is true the law (Art. 669, old Civil Code; Art. 818, new Civil
Code). prohibits the making of a will jointly by two or more
persons either for their reciprocal benefit or for the benefit of a
third person. However, this form of will has long been sanctioned
by use, and the same has continued to be used; and when, as in
the present case, one such joint last will and testament has been
admitted to probate by final order of a Court of competent
jurisdiction, there seems to be no alternative except to give effect
to the provisions thereof that are not contrary to law, as was done
in the case of Macrohon vs. Saavedra, 51 Phil. 267, wherein our
Supreme Court gave effect to the provisions of the joint will
therein mentioned, saying, "assuming that the joint will in
question is valid."
Whence this appeal by the heirs intestate of the deceased
husband, Bernabe de la Cerna.

The appealed decision correctly held that the final decree of


probate, entered in 1939 by the Court of First Instance of Cebu
(when the testator, Bernabe de la Cerna, died), has conclusive
effect as to his last will and testament despite the fact that even
then the Civil Code already decreed the invalidity of joint wills,
whether in favor of the joint testators, reciprocally, or in favor of a
third party (Art. 669, old Civil Code). The error thus committed by
the probate court was an error of law, that should have been
corrected by appeal, but which did not affect the jurisdiction of
the probate court, nor the conclusive effect of its final decision,
however erroneous. A final judgment rendered on a petition for
the probate of a will is binding upon the whole world (Manalo vs.
Paredes, 47 Phil. 938; In re Estates of Johnson, 39 Phil. 156); and
public policy and sound practice demand that at the risk of
occasional errors judgment of courts should become final at some
definite date fixed by law. Interest rei publicae ut finis set
litium (Dy Cay vs. Crossfield, 38 Phil, 521, and other cases cited in
2 Moran, Comments on the Rules of Court (1963 Ed., p. 322).
Petitioners, as heirs and successors of the late Bernabe de la
Cerna, are concluded by the 1939 decree admitting his will to
probate. The contention that being void the will cannot be
validated, overlooks that the ultimate decision on Whether an act
is valid or void rests with the courts, and here they have spoken
with finality when the will was probated in 1939. On this court, the
dismissal of their action for partition was correct.
But the Court of Appeals should have taken into account also, to
avoid future misunderstanding, that the probate decree in 1989
could only affect the share of the deceased husband, Bernabe de
la Cerna. It could not include the disposition of the share of the
wife, Gervasia Rebaca, who was then still alive, and over whose
interest in the conjugal properties the probate court acquired no
jurisdiction, precisely because her estate could not then be in
issue. Be it remembered that prior to the new Civil Code, a will
could not be probated during the testator's lifetime.

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.

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