Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. L-25966 November 1, 1926

In the matter of the estate of Tomas Rodriguez, deceased. MANUEL TORRES,

special administrator, and LUZ LOPEZ DE BUENO, heir, appellee,
vs.
MARGARITA LOPEZ, opponent-appellant.

Marcaida, Capili and Ocampo and Camus, Delgado and Recto for appellant.
Araneta and Zaragoza for appellee.

STREET, J.:

This appeal involves a controversy over one-half of the estate of Tomas Rodriguez,
decedent. The appellant, Margarita Lopez, claims said half by the intestate succession
as next of kin and nearest heir; while the appellee, Luz Lopez de Bueno, claims the
same by accredition and in the character of universal heir the will of the decedent. The
trial court decided the point of controversy in favor of Luz Lopez de Bueno, and
Margariat Lopez appealed.

The facts necessary to an understanding of the case are these: On January 3, 1924,
Tomas Rodriguez executed his last will and testament, in the second clause of which he
declared:

I institute as the only and universal heirs to all my property, my cousin Vicente F.
Lopez and his daughter Luz Lopez de Bueno.

Prior to the time of the execution of this will the testator, Tomas Rodriguez, had been
judicially declared incapable of taking care of himself and had been placed under the
care of his cousin Vicente F. Lopez, as guardian. On January 7, 1924, or only four days
after the will above-mentioned was made, Vicente F. Lopez died; and the testator,
Tomas Rodriguez, died on February 25, 1924, thereafter. At the time the will was made
Vicente F. Lopez had not presented his final accounts as guardian, and no such
accounts had been presented by him at the time of his death. Margariat Lopez was a
cousin and nearest relative of the decedent. The will referred to, and after having been
contested, has been admitted to probate by judicial determination (Torres and Lopez de
Bueno vs. Lopez, 48 Phil., 772).
Our discussion of the legal problem presented should begin with article 753 of the Civil
Code which in effect declares that, with certain exceptions in favor of near relatives, no
testamentary provision shall be valid when made by a ward in favor of his guardian
before the final accounts of the latter have been approved. This provision is of
undoubted application to the situation before us; and the provision made in the will of
Tomas Rodriguez in favor of Vicente F. Lopez was not any general incapacity on his
part, but a special incapacity due to the accidental relation of guardian and ward
existing between the parties.

We now pass to article 982 of the Civil Code, defining the right of accretion. It is there
declared, in effect, that accretion take place in a testamentary succession, first when the
two or more persons are called to the same inheritance or the same portion thereof
without special designation of shares; and secondly, when one of the persons so called
dies before the testator or renounces the inheritance or is disqualifying to receive it. In
the case before us we have a will calling Vicente F. Lopez and his daughter, Luz Lopez
de Bueno, to the same inheritance without special designation of shares. In addition to
this, one of the persons named as heir has predeceased the testator, this person being
also disqualified to receive the estate even if he had been alive at the time of the
testator's death. This article (982) is therefore also of exact application to the case in
hand; and its effect is to give to the survivor, Luz Lopez de Bueno, not only the
undivided half which she would have received in conjunction with her father if he had
been alive and qualified to take, but also the half which pertained to him. There was no
error whatever, therefore, in the order of the trial court declaring Luz Lopez de Bueno
entitled to the whole estate.

The argument in favor of the appellant supposes that there has supervened a partial
intestacy with respect to the half of the estate which was intended for Vicente F. Lopez
and that this half has descended to the appellant, Margarita Lopez, as next of kin and
sole heir at law of the decedent. In this connection attention is directed to article 764 of
the Civil Code wherein it is declared, among other things, that a will may be valid even
though the person instituted as heir is disqualified to inherit. Our attention is next invited
to article 912 wherein it is declared, among other things, that legal succession takes
place if the heir dies before the testator and also when the heir instituted is disqualified
to succeed. Upon these provisions an argument is planted conducting to the conclusion
that the will of Tomas Rodriguez was valid, notwithstanding the fact that one of the
individuals named as heirs in the will was disqualified to take, and that as a
consequence Margarita Lopez s entitled to inherit the share of said disqualified heir.

We are the opinion that this contention is untenable and that the appellee clearly has
the better right. In playing the provisions of the Code it is the duty of the court to
harmonize its provisions as far as possible, giving due effect to all; and in case of
conflict between two provisions the more general is to be considered as being limited by
the more specific. As between articles 912 and 983, it is obvious that the former is the
more general of the two, dealing, as it does, with the general topic of intestate
succession while the latter is more specific, defining the particular conditions under
which accretion takes place. In case of conflict, therefore, the provisions of the former
article must be considered limited by the latter. Indeed, in subsection 3 of article 912 the
provision with respect to intestate succession is expressly subordinated to article 983 by
the expression "and (if) there is no right of accretion." It is true that the same express
qualification is not found in subsection 4 of article 912, yet it must be so understood, in
view of the rule of interpretation above referred to, by which the more specific is held to
control the general. Besides, this interpretation supplies the only possible means of
harmonizing the two provisions. In addition to this, article 986 of the Civil Code affords
independent proof that intestate succession to a vacant portion can only occur when
accretion is impossible.

The attorneys for the appellant direct attention to the fact that, under paragraph 4 of
article 912, intestate succession occurs when the heir instituted is disqualified to
succeed (incapaz de suceder), while, under the last provision in paragraph 2 of article
982, accretion occurs when one of the persons called to inherit under the will is
disqualified to receive the inheritance (incapaz de recibirla). A distinction is then drawn
between incapacity to succeed and incapacity to take, and it is contended that the
disability of Vicente F. Lopez was such as to bring the case under article 912 rather
than 982. We are of the opinion that the case cannot be made to turn upon so refined
an interpretation of the language of the Code, and at any rate the disability to which
Vicente F. Lopez was subject was not a general disability to succeed but an accidental
incapacity to receive the legacy, a consideration which makes a case for accretion
rather than for intestate succession.

The opinions of the commentators, so far as they have expressed themselves on the
subject, tend to the conclusion that the right of accretion with regard to portions of an
inheritance left vacant by the death or disqualification of one of the heirs or his
renunciation of the inheritance is governed by article 912, without being limited, to the
extent supposed in appellant's brief, by provisions of the Code relative to intestate
succession (Manresa, Comentarios al Codigo Civil Espaol, 4th ed., vol. VII, pp. 310,
311; id., 34; 13 Mucius Scaevola, pp. 372, 373, 285-287; 16 Mucius Scaevola, 186).
Says Escriche: "It is to be understood that one of the coheirs or colegatees fails if
nonexistent at the time of the making of the will, or he renounces the inheritance or
legacy, if he dies before the testator, if the condition be not fulfilled, or if he becomes
otherwise incapacitated. . . . (Diccionario de Legislacion y Jurisprudencia, vol. I, p.
225.)lawphil.net

In conclusion it may be worth observing that there has always existed both in the civil
and in the common law a certain legal intendment, amounting to a mild presumption,
against partial intestacy. In Roman law, as is well known, partial testacy systems a
presumption against it, a presumption which has its basis in the supposed intention
of the testator.

The judgment appealed from will be affirmed, and it is so ordered, with costs against the
appellant.

Avancea, C, J., Villamor, Ostrand, Johns, Romualdez and Villa-Real, JJ., concur.
Nenita Suroza vs Honrado
110 SCRA 388 Succession Will should be Written in a Language Known to the
Testator

In 1973, Marcelina Suroza supposedly executed a notarial will bequeathing her

house and lot to a certain Marilyn Suroza. In 1974, Marcelina died. Marina Paje was
named as the executrix in the said will and she petitioned before CFI Rizal that the
will be admitted to probate. The presiding judge, Honrado admitted the will to
probate and assigned Paje as the administratrix. Honrado also issued an ejectment
order against the occupants of the house and lot subject of the will.

Nenita Suroza, daughter in law of Marcelina (her husband, son of Marcelina was
confined in the Veterans Hospital), learned of the probate proceeding when she
received the ejectment order (as she was residing in said house and lot).

Nenita opposed the probate proceeding. She alleged that the said notarial will is
void because (a) the instituted heir therein Marilyn Suroza is actually Marilyn Sy and
she is a stranger to Marcelina, (b) the only son of Marcelina, Agapito Suroza, is still
alive and is the compulsory heir, (c) the notarial will is written in English a language
not known to Marcelina because the latter was illiterate so much so that she merely
thumbmarked the will, (d) the notary public who notarized will admitted that
Marcelina never appeared before him and that he notarized the said will merely to
accommodate the request of a lawyer friend but with the understanding that
Marcelina should later appear before him but that never happened.

Honrado still continued with the probate despite the opposition until testamentary
proceeding closed and the property transferred to Marilyn Sy.

Nenita then filed this administrative case against Honrado on the ground of
misconduct.

ISSUE: Whether or not Honrado is guilty of misconduct for admitting into probate a
void will.

HELD: Yes. Despite the valid claim raised by Nenita, he still continued with the
testamentary proceeding, this showed his wrongful intent. He may even be
criminally liable for knowingly rendering an unjust judgment or interlocutory order or
rendering a manifestly unjust judgment or interlocutory order by reason of
inexcusable negligence or ignorance.

The will is written in English and was thumb marked by an obviously illiterate
Marcelina. This could have readily been perceived by Honrado that 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.
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. Had Honrado 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 to Marilyn Sy as sole heiress and giving nothing
at all to Agapito who was still alive.

Honrado was fined by the Supreme Court.

Matias v. Salud
L-10751, 23 June 1958

FACTS:

The CFI denied probate of the will of Gabina Raquel. It must be noted that
GabinaRaquel was suffering from herpes zoster that afflicted the right arm
and shoulder of the testatrix, which made writing difficult and a painful act.
Thus, upon the insistence of the attorney, Gabina attempted to sign, but since
it was so painful she just managed to thumbmarked the foot of the document
and the left margin at each page. The parties opposing the probate of the will
contended that the will was void due to the irregularities in the execution
thereof.

One of the points raised by the oppositors was that the finger mark cannot
beregarded as the decedents valid signature as it does not show distinct
identifying ridgelines. And since the finger mark was an invalid signature,
there must appear in the attestation clause that another person wrote the
testators name at his request.

ISSUE:

W/N the will was valid.

HELD:

YES. As to the clarity of the ridge impressions, it is so dependent on

aleatoryrequirements as to require dexterity that can be expected of very few
persons; testators should not be required to possess the skill of trained
officers.

And as to the validity of the thumbprints as signature, the SC held that it has
been held in a long line of cases that a thumbprint is always a valid and
sufficient signature for the purpose of complying with the requirement of the
article.

Furthermore, the validity of thumbprints should not be limited in cases of

illness or infirmity. A thumbprint is considered as a valid and sufficient
signature in complying with the requirements of the article.

Rosario Garcia vs Juliana

Lacuesta
90 Phil 189 Succession Signing Using an X Mark

Antero Mercado left a will dated January 3, 1943. The will appears to have been
signed by Atty. Florentino Javier as he wrote the name of Antero Mercado and his
name for the testatior on the will. HOWEVER, immediately after Antero Mercados
will, Mercado himself placed an X mark.
The attestation clause was signed by three instrumental witnesses. Said attestation
clause states that all pages of the will 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. The attestation clause however did not indicate that
Javier wrote Antero Mercados name.

ISSUE: Whether or not the will is valid.

HELD: No. The attestation clause is fatally defective for failing to state that Antero
Mercado caused Atty. Florentino Javier to write the testators name under his
express direction, as required by Section 618 of the Code of Civil Procedure.

But is there really a need for such to be included in the attestation clause
considering that even though Javier signed for Antero, Antero himself placed his
signature by virtue of the X mark, and by that, Javiers signature is merely a
surplusage? That the placing of the X mark is the same as placing Anteros thumb
mark.

No. Its not the same as placing the testators thumb mark. It would have been
different had it been proven that the X mark was Anteros usual signature or was
even one of the ways by which he signs his name. If this were so, failure to state the
writing by somebody else would have been immaterial, since he would be
considered to have signed the will himself.

Barut v. Cabacungan
21 P 461

FACTS:

Barut applied for the probate of the will of deceased, Maria Salomon. The
testatrix stated in the will that being unable to read or write, the will was 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
was contested by a number of the relatives of the deceased on various grounds.

The probate court found that the will was not entitled to probate because 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 to the person whose handwriting it was alleged
to be (i.e. The probate court denied probate because the signature seemed to
not have been by Severo Agayan but by another witness).

ISSUE:

Was the dissimilarity in handwriting sufficient to deny probate of the will?

HELD:

No. The SC found that the mere dissimilarity in writing is sufficient to

overcome the uncontradicted testimony of all the witnesses that the signature
of the testatrix was written by Severo Agayan. It is also 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.

Based on Section 618 of the Code of Civil Procedure, it is 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 3 witnesses and that they attested
and subscribed it in her presence and in the presence of each other. It may be
wise that the one who signs the testators namesigns also his own; but that is
not essential to the validity of the will.

The court also held that the 3 cases cited by the lower court was not
applicable. In those cases, the person who signed the will for the testator wrote
his own name instead of the testators, so that the testators name nowhere
appeared in the will, and were thus wills not duly executed
Lucio Balonan vs Eusebia
Abellana
109 Phil 369 Succession Signature of Testator

Anacleta Abellana left a will. In said will, she let a certain Juan Bello sign the will for
her. The will consists of two pages. The first page is signed by Juan Abello and
under his name appears typewritten Por la testadora Anacleta Abellana. On the
second page, appears the signature of Juan Bello under whose name appears the
phrase, Por la Testadora Anacleta Abellana this time, the phrase is handwritten.

ISSUE: Whether or not the signature of Bello appearing above the typewritten
phrase Por la testadora Anacleta Abellana comply with the requirements of the law
prescribing the manner in which a will shall be executed.

HELD: No. Article 805 of the Civil Code provides that:

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.

In the case at bar the name of the testatrix, Anacleta Abellana, does not appear
written under the will by said Abellana herself, or by Juan Abello. There is, therefore,
a failure to comply with the express requirement in the law that the testator must
himself sign the will, or that his name be affixed thereto by some other person in his
presence and by his express direction.

Note that the phrase Por la testadora Anacleta Abellana was typewritten and
above it was the signature of Abello so in effect, when Abello only signed his name
without writing that he is doing so for Anacleta, he actually omitted the name of the
testatrix. This is a substantial violation of the law and would render the will invalid.

Beatriz Nera vs Narcisa

Rimando
18 Phil 450 Succession What In the presence of each other means

When a certain will was being signed, it was alleged that the testator and some
subscribing witnesses were in the inner room while the other subscribing witnesses
were in the outer room. What separates the inner room from the outer room was a
curtain. The trial court ignored this fact in its determination of the case as it ruled that
the determination of this specific fact will not affect the outcome of the case.

ISSUE: What is the true test of the testators or the witness presence in the signing
of a will?

HELD: The Supreme Court emphasized 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 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.

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.

The Supreme Court, in this case, determined that all the parties were in the same
small room when each other signed. Hence, they were in each others presence
(though the facts of the case didnt elaborate the SC just ruled so). The SC ruled
that if some of the witnesses were really in the outer room (a fact which was not
established according to the SC) separated by a curtain, then the will is invalid, the
attaching of those signatures under circumstances not being done in the presence
of the witness in the outer room

Apolonio Taboada vs Avelino

Rosal
118 SCRA 195 Succession Substantial Compliance

Dorotea Perez left a will. The will has two pages. On the first page, which contains
the entire testamentary dispositions, were the signatures of the three instrumental
witnesses and that of Dorotea Perez. The signatures of the three instrumental
witnesses were on the left margin while Perez signature was on the bottom. On the
second page, which contains the attestation clause and the acknowledgement, were
the signatures of the three attesting witnesses and that of Dorotea Perez. The
attestation clause failed to state the number of pages used in the will. Taboada
petitioned for the admission to probate of the said will. The judge who handled the
petition was Judge Ramon Pamatian. He denied the petition. Taboada filed a motion
for reconsideration but Pamatian was not able to act on it because he was
transferred to another jurisdiction. The case was inherited by Judge Rosal who also
denied the MFR on the grounds that a) that the testator and the instrumental
witnesses did not all sign on the left margin of the page as prescribed by law; that
the testator and the witnesses should have placed their signature in the same place
b) that the attestation clause failed to state the number of pages used in writing the
will this, according to Judge Rosal violated the requirement 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.

ISSUE: Whether or not the will should be admitted to probate.

HELD: Yes. The law must be interpreted liberally.

Further, there is substantial compliance with the law. It would be absurd that the
legislature intended to place so heavy an import on the space or particular location
where the signatures are to be found as long as this space or particular location
wherein the signatures are found is consistent with good faith.

The failure to include in the attestation clause of the number of pages used in writing
the will would have been a fatal defect. But then again, the matter should be
approached liberally. There were only two pages in the will left by Perez. The first
page contains the entirety of the testamentary dispositions and 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. Further, the acknowledgment itself
states that This Last Will and Testament consists of two pages including this page.
Icasiano vs. Icasiano
G.R. No. L-18979 June 30, 1964

Facts:
1. Celso Icasiano, filed a petition for the probate of the will of Josefa
Villacorte and for his appointment as executor thereof. It appears from the
evidence that the testatrix died on September 12, 1958. She executed a will in
Tagalog, and through the help of her lawyer, it was prepared in duplicates, an
original and a carbon copy.

2. On the day that it was subscribed and attested, the lawyer only brought the
original copy of the will while the carbon duplicate (unsigned) was left in
Bulacan. One of the witnesses failed to sign one of the pages in the original
copy but admitted he may have lifted 2 pages simultaneously instead when he
signed the will. Nevertheless, he affirmed that the will was signed by the
testator and other witnesses in his presence.

Issue: Whether or not the failure of one of the subscribing witnesses to

affix his signature to a page is sufficient to deny probate of the will

RULING: No, the failure to sign was entirely through pure oversight or mere
inadvertence. Since the duplicated bore the required signatures, this proves
that the omission was not intentional. Even if the original is in existence, a
duplicate may still be admitted to probate since the original is deemed to be
defective, then in law, there is no other will bu the duly signed carbon
duplicate and the same can be probated.

The law should not be strictly and literally interpreted as to penalize the
testatrix on account of the inadvertence of a single witness over whose
conduct she has no control of. Where the purpose of the law is to guarantee
the identity of the testament and its component pages, and there is no
intentional or deliberate deviation existed.

Note that this ruling should not be taken as a departure from the rules that the
will should be signed by the witnesses on every page. The carbon copy
duplicate was regular in all respects.

Testate Estate of Cagro v.

Cagro Digest
Testate Estate of Cagro vs. Cagro
G.R. L-5826

Facts:
1. The case is an appeal interposed by the oppositors from a decision of the
CFI of Samar which admitted to probate a will allegedly executed by Vicente
Cagro who died in Pambujan, Samar on Feb. 14, 1949.

2. The appellants insisted that the will is defective because the attestation was
not signed by the witnesses at the bottom although the page containing the
same was signed by the witnesses on the left hand margin.

3. Petitioner contended that the signatures of the 3 witnesses on the left hand
margin conform substantially to law and may be deemed as their signatures
to the attestation clause.

Issue: Whether or not the will is valid

HELD: Will is not valid. The attestation clause is a memorandum of the facts
attending the execution of the will. It is 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 negatives their
participation.

Moreover, the signatures affixed on the let hand margin is not substantial
conformance to the law. The said signatures were merely in conformance
with the requirement that the will must be signed on the left-hand margin of
all its pages. If the attestation clause is unsigned by the 3 witnesses at the
bottom, it would be easier to add clauses to a will on a subsequent occasion
and in the absence of the testator and any or all of the witnesses.

The probate of the will is denied.

Abangan vs. Abangan Digest

Abangan v. Abangan

Facts:
1. On September 1917, the CFI of Cebu admitted to probate Ana Abangan's
will executed on July 1916. It is from this decision which the opponent
appealed. It is alleged that the records do not show the testatrix knew the
dialect in which the will was written.

Issue: Whether or not the will was validly probated

YES. The circumstance appearing on the will itself, that it was executed in
Cebu City and in the dialect of the place where the testarix is a resident is
enough to presume that she knew this dialect in the absence of any proof to
the contrary. On the authority of this case and that of Gonzales v Laurel, it
seems that for the presumption to apply, the following must appear: 1) that
the will must be in a language or dialect generally spoken in the place of
execution, and, 2) that the testator must be a native or resident of the said
locality

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. L-14322 February 25, 1960

In the matter of the TESTATE ESTATE OF PETRONILA TAMPOY, deceased,

vs.
DIOSDADA ALBERASTINE, petitioner-appellant.

Agustin Y. Kintanar for appellant.

BAUTISTA ANGELO, J.:

This concerns the probate of a document which purports to be the last will and
testament of one Petronila Tampoy. After the petition was published in accordance with
law and petitioner had presented oral and documentaryevidence, the trial court denied
the petition on the ground that the left hand margin of the first of the will does not bear
the thumbmark of the testatrix. Petitioner appealed from this ruling but the Court of
Appeals certified the case to us because it involves purely a question of law.

The facts of this case as found by the trial court as follows:

De las pruebas resulta que Petronila Tampoy, ya viuda y sin hijos, rogo a
Bonigfacio Mioza que la leyera el testamento Exhibito A y la expicara su
contenido en su casa en al calle San Miguel, del municipio de Argao, provincia
de Cebu, en 19 de noviember de 1939, y lasi lo hizo Bonifacio Mioza en
presencia de los tres testigos instrumentales, Rosario K. Chan, Mauricio de la
Pea y Simeon Omboy, y despues de conformarse con el contendido del
testamento, ella rogo a Bonifacio Mioza, que escribiera su nombre al pie del
testamento, en la pagina segunda, y asi lo hizo Bonifacio Mioza, y despues ella
estampo su marca digital entra su nombre y apelido en presencia de todos y
 cada uno de los tres testigos instrumentales, Rosario K. Chan, Mauricio de la
Pea y Simeon Omboy y de Bonifacio Mioza, y despues, Bonifacio Mioza
firmo tambien al pie del todos y cada uno de lo tres testigos arriba nombrados.
La testadora asi como Bonifacio Mioza parte de la primera pagina del
testamento qeu se halla compuesto de dos paginas. Todos y cada uno de los
tres testigos instrumentales, Rosario K. Chan, Mauricio de la Pea y Simeon
Omboy, firmaron al pie de la clausula de atestiguamiento que esta escrita en la
pagina segunda del testamento y en la margen izquierda de la misma pagina 2 y
de la pagina primera en presencia de la testadora, de Bonifacio Mioza, del
abogado Kintanar y de todos y cada uno de ellos. El testamento fue otorgado por
la testadora libre y expontaneament, sin haber sido amenazada, forzada o
intimidada, y sin haberse ejercido sobre ella influencia indebida, estando la
misma en pleno uso de sus facultades mentales y disfrutando de buena salud.
La testadore fallecio en su case en Argao en 22 de febrero de 1957 (Vease
certificado de defuncion Exhibito B). La heredera instituida en el testamento,
Carmen Alberastine, murio dos semanas despues que la testadora, o sea en 7
de Marzo de 1957, dejando a su madre, la solicitante Diosdada Alberastine.

The above facts are not controverted, there being no opposition to the probate of the
will. However, the trial court denied the petition on the ground that the first page of the
will does not bear the thumbmark of the testatrix. Petitioner now prays that this ruling be
set aside for the reason that, although the first page of the will does not bear the
thumbmark of the testatrix, the same however expresses her true intention to givethe
property to her whose claims remains undisputed. She wishes to emphasize that no one
has filed any to the opposition to the probate of the will and that while the first page
does not bear the thumbmark of the testatrix, the second however bears her thumbmark
and both pages were signed by the three testimonial witnesses. Moreover, despite the
fact that the petition for probate is unoppossed, the three testimonial witnesses testified
and manifested to the court that the document expresses the true and voluntary will of
the deceased.

This contention cannot be sustained as it runs counter to the express provision of the
law. Thus, Section 618 of Act 190, as amended, requires that the testator sign the will
and each and every page thereof in the presence of the witnesses, and that the latter
sign the will and each and every page thereof in the presence of the testator and of
each other, which requirement should be expressed in the attestation clause. This
requirement is mandatory, for failure to comply with it is fatal to the validity of the will
(Rodriguez vs. Alcala, 55 Phil., 150). Thus, it has been held that "Statutes prescribing
the formalities to be observed in the execution of wills are very strictly construed. As
stated in 40 Cyc., at page 1097, 'A will must be executed in accordance with the
statutory requirements; otherwise it is entirely void.' All these requirements stand as of
equal importance and must be observed, and courts cannot supply the defective
execution of a will. No power or discretion is vested in them, either to superadd other
conditions or dispence with those enumerated in the statutes" (Uy Coque vs. Navas L.
Sioca, 43 Phil., 405, 407; See also Sao vs. Quintana, 48 Phil., 506; Gumban vs.
Gorecho, 50 Phil., 30; Quinto vs. Morata, 54 Phil., 481).
Since the will in question suffers from the fatal defect that it does not bear the
thumbmark of the testatrix on its first page even if it bears the signature of the three
instrumental witnesses, we cannot escape the conclusion that the same fails to comply
with the law and therefore, cannot be admitted to probate.

Wherefore, the order appealed from is affirmed, without pronouncement as to costs.

Cruz v. Villasor
G.R. L-32213 November 26, 1973
Ponente: Esguerra, J.:

Facts:
1. The CFI of Cebu allowed the probate of the last will and testament of the
late Valenti Cruz. However, the petitioner opposed the allowance of the will
alleging that it was executed through fraud, deceit, misrepresentation, and
undue influence. He further alleged that the instrument was executed without
the testator having been informed of its contents and finally, that it was not
executed in accordance with law.

2. One of the witnesses, Angel Tevel Jr. was also the notary before whom the
will was acknowledged. Despite the objection, the lower court admitted the
will to probate on the ground that there is substantial compliance with the
legal requirements of having at least 3 witnesses even if the notary public was
one of them.

Issue: Whether or not the will is valid in accordance with Art. 805 and
806 of the NCC

HELD: NO.
The will is not valid. The notary public cannot be considered as the third
instrumental witness since he cannot acknowledge before himself his having
signed the said will. An acknowledging officer cannot serve as witness at the
same time.
To acknowledge before means to avow, or to own as genuine, to assent,
admit, and 'before' means in front of or preceding in space or ahead of. The
notary cannot split his personality into two so that one will appear before the
other to acknowledge his participation int he making of the will. To permit
such situation would be absurd.

Finally, the function of a notary among others is to guard against any illegal
or immoral arrangements, a function defeated if he were to be one of the
attesting or instrumental witnesses. He would be interested in sustaining the
validity of the will as it directly involves himself and the validity of his own
act. he would be in an inconsistent position, thwarting the very purpose of the
acknowledgment, which is to minimize fraud.

Jose Gabucan vs Judge Luis

Manta
95 SCRA 751 Remedial Law Special Proceedings Probate of Will
Documentary Stamp on Notarial Will

I n 1977, Judge Luis Manta dismissed a probate proceeding because the notarial

will presented in the said case lacked a documentary stamp. Judge Manta ruled that
the lack of of documentary stamp made the will inadmissible in evidence and as
such there is no will and testament to probate.

Jose Gabucan, a party in the said case, thereafter affixed the required documentary
stamp and then moved for reconsideration but the judge refused to reconsider his
ruling. Hence, Gabucan filed a petition for mandamus to compel the judge to admit
the notarial will.
ISSUE: Whether or not a notarial will presented in court which originally has no
documentary stamp may still be admitted after the required documentary stamp was
affixed.

HELD: Yes. It is true that the law (the [old] Tax Code now Sec. 201 of R.A. 8424)
requires a notarial will to have a documentary stamp:

SEC. 238. Effect of failure to stamp taxable document. An instrument, document,

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

Thus, a notarial will without a documentary stamp may not be admitted in evidence.
However, once the said documentary stamp is affixed, then the deficiency is cured
and it can now be admitted in evidence. The documentary stamp may be affixed at
the time the taxable document is presented in evidence.

Javellana vs. Ledesma

G.R. No. L-7179

Facts:
1. The CFI of Iloilo admitted to probate a will and codicil executed by the
deceased Apolinaria Ledesma in July 1953. This testament was deemed
executed on May 1950 and May 1952. The contestant was the sister and
nearest surviving relative of the deceased. She appealed from this decision
alleging that the will were not executed in accordance with law.

2. The testament was executed at the house of the testatrix. One the other
hand, the codicil was executed after the enactment of the New Civil Code
(NCC), and therefore had to be acknowledged before a notary public. Now,
the contestant, who happens to be one of the instrumental witnesses asserted
that after the codicil was signed and attested at the San Pablo hospital, that
Gimotea (the notary) signed and sealed it on the same occasion. Gimotea,
however, said that he did not do so, and that the act of signing and sealing
was done afterwards.

2. One of the allegations was that the certificate of acknowledgement to the

codicil was signed somewhere else or in the office of the notary. The ix and
the witnesses at the hospital, was signed and sealed by the notary only when
he brought it in his office.

Issue: Whether or not the signing and sealing of the will or codicil in the
absence of the testator and witnesses affects the validity of the will

RULING: NO. Unlike in the Old Civil Code of 1899, the NCC does not
require that the signing of the testator, the witnesses and the notary be
accomplished in one single act. All that is required is that every will must be
acknowledged before a notary public by the testator and witnesses. The
subsequent signing and sealing is not part of the acknowledgement itself nor
of the testamentary act. Their separate execution out of the presence of the
testator and the witnesses cannot be a violation of the rule that testaments
should be completed without interruption.
Republic of the Philippines
SUPREME COURT
Manila

FIRST DIVISION

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

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

BIBIANA ROXAS DE JESUS, SIMEON R. ROXAS & PEDRO ROXAS DE
JESUS, petitioners,
vs.
ANDRES R. DE JESUS, JR., respondent.

Raul S. Sison Law Office for petitioners.

Rafael Dinglasan, Jr. for heir M. Roxas.

Ledesma, Guytingco Velasco and Associates for Ledesa and A. R. de Jesus.

GUTIERREZ, JR., J.:

This is a petition for certiorari to set aside the order of respondent Hon. Jose C.
Colayco, Presiding Judge Court of First Instance of Manila, Branch XXI disallowing the
probate of the holographic Will of the deceased Bibiana Roxas de Jesus.

The antecedent facts which led to the filing of this petition are undisputed.

After the death of spouses Andres G. de Jesus and Bibiana Roxas de Jesus, Special
Proceeding No. 81503 entitled "In the Matter of the Intestate Estate of Andres G. de
Jesus and Bibiana Roxas de Jesus" was filed by petitioner Simeon R. Roxas, the
brother of the deceased Bibiana Roxas de Jesus.

On March 26, 1973, petitioner Simeon R. Roxas was appointed administrator. After
Letters of Administration had been granted to the petitioner, he delivered to the lower
court a document purporting to be the holographic Will of the deceased Bibiana Roxas
de Jesus. On May 26, 1973, respondent Judge Jose Colayco set the hearing of the
probate of the holographic Win on July 21, 1973.

Petitioner Simeon R. Roxas testified that after his appointment as administrator, he

found a notebook belonging to the deceased Bibiana R. de Jesus and that on pages 21,
22, 23 and 24 thereof, a letter-win addressed to her children and entirely written and
signed in the handwriting of the deceased Bibiana R. de Jesus was found. The will is
dated "FEB./61 " and states: "This is my win which I want to be respected although it is
not written by a lawyer. ...

The testimony of Simeon R. Roxas was corroborated by the testimonies of Pedro Roxas
de Jesus and Manuel Roxas de Jesus who likewise testified that the letter dated
"FEB./61 " is the holographic Will of their deceased mother, Bibiana R. de Jesus. Both
recognized the handwriting of their mother and positively Identified her signature. They
further testified that their deceased mother understood English, the language in which
the holographic Will is written, and that the date "FEB./61 " was the date when said Will
was executed by their mother.

Respondent Luz R. Henson, another compulsory heir filed an "opposition to probate"

assailing the purported holographic Will of Bibiana R. de Jesus because a it was not
executed in accordance with law, (b) it was executed through force, intimidation and/or
under duress, undue influence and improper pressure, and (c) the alleged testatrix
acted by mistake and/or did not intend, nor could have intended the said Will to be her
last Will and testament at the time of its execution.
On August 24, 1973, respondent Judge Jose C. Colayco issued an order allowing the
probate of the holographic Will which he found to have been duly executed in
accordance with law.

Respondent Luz Roxas de Jesus filed a motion for reconsideration alleging inter alia
that the alleged holographic Will of the deceased Bibiana R. de Jesus was not dated as
required by Article 810 of the Civil Code. She contends that the law requires that the
Will should contain the day, month and year of its execution and that this should be
strictly complied with.

On December 10, 1973, respondent Judge Colayco reconsidered his earlier order and
disallowed the probate of the holographic Will on the ground that the word "dated" has
generally been held to include the month, day, and year. The dispositive portion of the
order reads:

WHEREFORE, the document purporting to be the holographic Will of

Bibiana Roxas de Jesus, is hereby disallowed for not having been
executed as required by the law. The order of August 24, 1973 is hereby
set aside.

The only issue is whether or not the date "FEB./61 " appearing on the holographic Will
of the deceased Bibiana Roxas de Jesus is a valid compliance with the Article 810 of
the Civil Code which reads:

ART. 810. A person may execute a holographic will which must be entirely
written, dated, and signed by the hand of the testator himself. It is subject
to no other form, and may be made in or out of the Philippines, and need
not be witnessed.

The petitioners contend that while Article 685 of the Spanish Civil Code and Article 688
of the Old Civil Code require the testator to state in his holographic Win the "year,
month, and day of its execution," the present Civil Code omitted the phrase 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 oppositor-respondent Luz Henson is that the holographic
Will is fatally defective because the date "FEB./61 " appearing on the holographic Will is
not sufficient compliance with Article 810 of the Civil Code. This objection is too
technical to be entertained.

As a general rule, the "date" in a holographic Will should include the day, month, and
year of its execution. However, when as in the case at bar, there is no appearance of
fraud, bad faith, undue influence and pressure and the authenticity of the Will is
established and the only issue is whether or not the date "FEB./61" appearing on the
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.

Teehankee (Chairman), Melencio-Herrera, Plana, Relova and De la Fuente, JJ., concur.

Magsaysay-Labrador, et. al. vs. Court of Appeals
[GR 58168, 19 December 1989]

Facts: On 9 February 1979, Adelaida Rodriguez-Magsaysay, widow and special

administratix of the estate of the late Senator Genaro Magsaysay, brought before the then
Court of First Instance of Olongapo an action against Artemio Panganiban, Subic Land
Corporation (SUBIC), Filipinas Manufacturer's Bank (FILMANBANK) and the Register of
Deeds of Zambales, for the annulment of the Deed of Assignment executed by the late
Senator in favor of SUBIC (as a result of which TCT 3258 was cancelled and TCT 22431
issued in the name of SUBIC), for the annulment of the Deed of Mortgage executed by
SUBIC in favor of FILMANBANK (dated 28 April 1977 in the amount of P 2,700,000.00),
and cancellation of TCT 22431 by the Register of Deeds, and for the latter to issue a new
title in her favor. On 7 March 1979, Concepcion Magsaysay-Labrador, Soledad Magsaysay-
Cabrera, Luisa Magsaysay-Corpuz, Felicidad Magsaysay, and Mercedes Magsaysay-Diaz,
sisters of the late senator, filed a motion for intervention on the ground that on 20 June
1978, their brother conveyed to them 1/2 of his shareholdings in SUBIC or a total of
416,566.6 shares and as assignees of around 41 % of the total outstanding shares of such
stocks of SUBIC, they have a substantial and legal interest in the subject matter of litigation
and that they have a legal interest in the success of the suit with respect to SUBIC. On 26
July 1979, the trial court denied the motion for intervention, and ruled that petitioners have
no legal interest whatsoever in the matter in litigation and their being alleged assignees or
transferees of certain shares in SUBIC cannot legally entitle them to intervene because
SUBIC has a personality separate and distinct from its stockholders.

On appeal, the Court of Appeals found no factual or legal justification to disturb the findings
of the lower court. The appellate court further stated that whatever claims the Magsaysay
sisters have against the late Senator or against SUBIC for that matter can be ventilated in a
separate proceeding. The motion for reconsideration of the Magsaysay sisters was denied.
Hence, the petition for review on certiorari.

Issue: Whether the Magsaysay sister, allegedly stockholders of SUBIC, are interested
parties in a case where corporate properties are in dispute.

Held: Viewed in the light of Section 2, Rule 12 of the Revised Rules of Court, the
Magsaysay sisters have no legal interest in the subject matter in litigation so as to entitle
them to intervene in the proceedings. To be permitted to intervene in a pending action, the
party must have a legal interest in the matter in litigation, or in the success of either of the
parties or an interest against both, or he must be so situated as to be adversely affected by
a distribution or other disposition of the property in the custody of the court or an officer
thereof . Here, the interest, if it exists at all, of the Magsaysay sisters is indirect, contingent,
remote, conjectural, consequential and collateral. At the very least, their interest is purely
inchoate, or in sheer expectancy of a right in the management of the corporation and to
share in the profits thereof and in the properties and assets thereof on dissolution, after
payment of the corporate debts and obligations. While a share of stock represents a
proportionate or aliquot interest in the property of the corporation, it does not vest the owner
thereof with any legal right or title to any of the property, his interest in the corporate
property being equitable or beneficial in nature. Shareholders are in no legal sense the
owners of corporate property, which is owned by the corporation as a distinct legal person.

Kalaw v. Relova
132 SCRA 237

FACTS:

On September 1, 1971,Gregorio Kalaw, claiming to be the sole heir of his

deceased sister, Natividad Kalaw, filed a petition for the probate of
her holographic Will executed on December 24, 1968.

The holographic Will, as first written, named Rosa Kalaw, a sister of the
testatrix as her sole heir. She opposed probate alleging that
the holographic Will containedalterations, 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.

ROSAs position was that the holographic Will, as first written, should be
given effect and probated so that she could be the sole heir thereunder.

Trial Court denied petition to probate the holographic will. Reconsideration

denied.

ISSUE:
W/N the original unaltered text after subsequent alterations and insertions
were voided by the Trial Court for lack of authentication by the full signature
of the testatrix, should be probated or not, with Rosa as sole heir.

HELD:

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.

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 mannerrequired 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

TESTATE ESTATE OF FELICIDAD ESGUERRA ALTO-YAP deceased. FAUSTO

E. GAN, petitioner-appellant,vs. ILDEFONSO YAP, oppositor-appellee.G.R.
No. L-12190, August 30, 1958FACTS
On November 20, 1951, Felicidad Esguerra Alto Yap died of heart failure in the
University of SantoTomas Hospital, leaving properties in Pulilan, Bulacan, and in the
City of Manila.
On March 17, 1952, Fausto E. Gan initiated these proceedings in the Manila court
of first instance with a petition for the probate of a holographic will allegedly
executed by the deceased. 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, refused to probate the alleged will. A seventy-page
motion for reconsideration failed. Hence this appeal.
ISSUE
WON 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?
HELD
NO. 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 loss of the holographic will entails the loss of the
only medium of proof. 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.

Rodelas v. Aranza
119 SCRA 16

FACTS:

Rodelas filed a petition with the CFI of Rizal for the probate of
the holographic will of Ricardo B. Bonilla and the issuance of letters
testamentary in her favor.
Aranza, et al. filed a MTD on the grounds of:

1.Rodelas 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 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, it was merely an instruction as to the management
and improvement of the schools and colleges founded by the decedent;
3.the hollographic will itself, and not an alleged copy thereof, must be
produced, otherwise it would produce no effect because lost or
destroyed holographic wills cannot be proved by secondary evidence unlike
ordinary wills.

4.the deceased did not leave any will, holographic or otherwise, executed and
attested as required by law.

MTD was denied. Aranza et al. filed an MR, Rodelas filed an opposition.

The CFI set aside its order and dismissed the petition for the probate of the
will stating that 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.

And that the alleged holographic will was executed on January 25, 1962 while
Ricardo B. Bonilla died on May 13, 1976. The lapse of more than 14 years from
the time of the execution of the will to the death of the decedent and the fact
that the original of the will could not be located shows to that the decedent
had discarded the alleged holographic will before his death.

Rodelas filed an MR which was denied. Rodelas appealed to the CA. Aranza et
al. moved to forward the case to the SC as it involves a question of law not of
fact.

ISSUE:

W/N a holographic will which was lost or cannot be found can be proved by
means of a photostatic copy.

HELD:

If the holographic will has been lost or destroyed and no other copy
is available, the will cannot be probated because the best and only evidence is
the handwriting of the testator in said will. It is necessary that there be a
comparison between samplehandwritten 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 by the probate court with the standard
writings of the testator. The probate court would be able to determine the
authenticity of the handwriting 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,

Maloto v. Court of Appeals

G.R. No. 76464 February 29, 1988
Sarmiento, J. (Ponente)

Facts:
1. Petitioners and respondents are the nieces/nephews or Adriana Maloto who
died in 1963. The four heirs believed that the deceased did not leave a will,
hence they filed an intestate proceeding. However, the parties executed an
extrajudicial settlement of the estate dividing it into four equal parts.

2. In 1967, Atty. Sulpicio Palma, ex-associate of the deceased's counsel

allegedly discovered her last will which was purportedly dated 1940, inside a
cabinet. Hence the annulment of the proceedings and a probate petition was
filed by the devisees and legatees. The said will was allegedly burned by the
house helper under the instruction of the deceased

3. The lower court denied the probate on the ground that the animus
revocandi in the burning of the will was sufficiently proven.

Issue: Whether or not there was valid revocation of the will

RULING: No, there was no revocation. For a valid revocation to

occur,the 'corpus' and 'animus' must concur, one without the other will not
produce a valid revocation. The physical act of destruction of a will must
come with an intention to revoke (animus revocandi). In this case, there's
paucity of evidence to comply with the said requirement. The paper burned
was not established to be the will and the burning though done under her
express direction was not done in her presence.

Under Art. 830, the physical act of destruction, in this case the burning of the
will, does not constitute an effective revocation, unless it is coupled
with animus revocandi on the part of the testator. Since animus is a state of
mind, it has to be accompanied by an overt physical act of burning, tearing,
obliterating or cancelling done by the testator himself or by another under his
express direction and presence.
Gago vs. Mamuyac
G.R. No. L-26317 January 29, 1927
Johnson, J. (Ponente)

Facts:
1. Previously, Francisco Gago filed a petition for the probate of a will of
Miguel Mamuyac executed on July 27, 1918. The oppositors alleged that the
said will was already annulled and revoked. It appeared that on April 16,
1919, the deceased executed another will. The lower court denied the probate
of the first will on the ground of the existence of the second will.

2. Another petition was filed to seek the probate of the second will. The
oppositors alleged that the second will presented was merely a copy.
According to the witnesses, the said will was allegedly revoked as per the
testimony of Jose Tenoy, one of the witnesses who typed the document.
Another witness testified that on December 1920 the original will was
actually cancelled by the testator.

3. The lower court denied the probate and held that the same has been
annulled and revoked.

Issue: Whether or not there was a valid revocation of the will

RULING: Yes. The will was already cancelled in 1920. This was inferred
when after due search, the original will cannot be found. When the will which
cannot be found in shown to be in the possession of the testator when last
seen, the presumption is that in the absence of other competent evidence, the
same was deemed cancelled or destroyed. The same presumption applies
when it is shown that the testator has ready access to the will and it can no
longer be found after his death.

Nepomuceno v. Court of Appeals

No. L-62952, October 9, 1985

Martin Jugo died on July 16, 1974 in Malabon, Rizal. He left a last Will and
Testament where he named and appointed petitioner Sofia Nepomuceno as
his sole and only executor of his estate. It is clearly stated in the will that the
testator was legally married to a certain Rufina Gomez by whom he had two
legitimate children, but since 1952, he had been estranged from his lawfully
wedded wife and had been living with petitioner as husband and wife. In fact,
on December 5, 1952, the testator Martin Jugo and the petitioner herein,
Sofia, were married on Tarlac before the Justice of the Peace. The testator
devised to his forced heirs, namely, his legal wife Rufina Gomez and his
children his entire estate and the free portion thereof to herein petitioner.
Subsequently, the petitioner filed a petition for the probate of the last will and
testament of the deceased, but the legal wife of the testator Rufina and her
children filed an opposition alleging inter alia that the execution of the will
was procured by undue and improper influence on the part of the petitioner;
that at the time of the execution of the will, the testator was already very sick
and that the petitioner having admitted her living in concubinage with the
testator, she is wanting integrity and thus letters testamentary should not
be issued to her.
The lower court denied the probate of the will on the ground that as the
testator admitted in his will to cohabiting with the petitioner because on the
face of the will, the invalidity of its intrinsic provisions is evident. The
appellate court declared the will to be valid except that the devise in favor of
the petitioner is null and void.

ISSUE: Whether or not the donation made by the testator in favor of herein
petitioner was valid.

No. There is no question from the records about the fact of a prior existing
marriage when Martin Jugo lived together in an ostensible marital
relationship for 22 years until his death. It is also a fact that Martin Jugo and
Sofia Nepomuceno contracted a marriage before the Justice of the Peace of
Tarlac. The man was then 51 years old while the woman was 48. Nepomuceno
contends that she acted in good faith for 22 years in the belief that she
was legally married to the testator. The records do not sustain that she acted
in good faith for 22 years in the belief that she was legally married to the
testator, since the last will and testament itself expressly admits indubitably
on its face the meretricious relationship between the testator and petitioner,
the devisee.
Moreover, the prohibition in Article 739 of the Civil Code is against the
making of a donation between persons who are living in adultery or
concubinage. It is the donation which becomes void. The giver cannot give
even assuming that the recipient may receive. The very wordings of the will
invalidate the legacy because the testator admitted he was disposing the
properties to a person with whom he had been living in concubinage.

Gallanosa v. Arcangel

Facts:

1. Florentino Gallanosa executed a will in 1938 when he was 80 years old.

He owned 61 parcels of and at that time. He died in 1939 childless and
survived by his brother Leon. In his will, he bequethed his 1/2 share of the
conjugal estate to his second wife Tecla and if she predecease him (as what
occurred), the said share shall be assigned to the spouses Gallanosa (Pedro &
Corazon). Pedro is Tecla's son by her 1st marriage. He also gave 3 parcels of
land to Adolfo, his protege.

2. The said will was admitted to probate with Gallanosa as executor. In 1952,
thjhe legal heirs filed an action for the recovery of said 61 parcels of land.
The action was dismissed on the ground of res judicata. Then, 28 years after
probate, another acton agaisnt Gallanosa for annulment of the will, recovery
of the lands alleging fraud and deceit, was filed. As a result, the lower court
set aide the 1939 decree of probate.

Issue: Whether or not a will which has been probated may still be
annulled

RULING: No. A final decree of probate is conclusive as to the due execution

of the will. Due execution means that the testator was of sound and disposing
mind at the time of the execution and that he was not acting under duress,
menace, fraud or undue influence. Finally, that it was executed in accordance
with the formalities provided by law.
The period for seeking relief under Rule 38 has already expired, hence the
judgment may only be set aside on the grounds of, 1) lack of jurisdiction or
lack of due process of law, and 2) the judgment was obtained by means of
extrinsic collateral fraud (which must be filed within 4 years from the
discovery). Finally, Art. 1410 cannot apply to wills and testament.

Austria v. Reyes
31 SCRA 754

FACTS:

Basilia Austria vda. de Cruz filed with the CFI of Rizal a petition for probate,
ante mortem, of her last will and testament. The probate was opposed by the
present petitioners, who are nephews and nieces of Basilia. The will was
subsequently allowed with the bulk of her estate designated for respondents,
all of whom were Basilias legally adopted children. The petitioners, claiming
to be the nearest of kin of Basilia, assert that the respondents had not in fact
been adopted by the decedent in accordance with law, thereby making them
mere strangers to the decedent and without any right to succeed as heirs.
Petitioners argue that this circumstanceshould have left the whole estate of
Basilia open to intestacy with petitioners being the compulsory heirs.

It is alleged by petitioners that the language used imply that Basilia was
deceived into believing that she was legally bound to bequeath one-half of her
entire estate to the respondents as the latters legitime, with the inference that
respondents would not have instituted the respondents as heirs had the fact of
spurious adoption been known to her. The petitioners inferred that from the
use of the terms, sapilitang tagapagmana (compulsory heirs) and sapilitang
mana (legitime), the impelling reason or cause for the institution of the
respondents was the testatrixs belief that under the law she could not do
otherwise. Thus Article 850 of the Civil Code applies whereby, the statement
of a false cause for the institution of an heir shall be considered as not written,
unless it appears from the will that the testator would not have made such
institution if he had known the falsity of such cause.
ISSUE:

W/N the lower court committed grave abuse of discretion in barring the
petitioners nephews and niece from registering their claim even to properties
adjudicated by the decedent in her will.

HELD:

No. Before the institution of heirs may be annulled under article 850 of the
Civil Code, the following requisites must concur: First, the cause for the
institution of heirs must be stated in the will; second, the cause must be shown
to be false; and third, it must appear from the face of the will that the testator
would not have made such institution if he had known the falsity of the cause.
The decedents will does not state in a specific or unequivocal manner the
cause for such institution of heirs. Absent such we look at other
considerations. The decedents disposition of the free portion of her estate,
which largely favored the respondents, compared with the relatively
small devise of land which the decedent left for her blood relatives, shows a
perceptible inclination on her part to give the respondents more than what she
thought the law enjoined her to give to them. Excluding the respondents from
theinheritance, considering that petitioner nephews and nieces would succeed
to the bulk of the testate by virtue of intestacy, would subvert the clear wishes
of the decedent.

Testacy is favored and doubts are resolved on its side, especially where the will
evinces an intention on the part of the testator to dispose of practically his
whole estate, as was done in this case. Intestacy should be avoided and the
wishes of the testator should be allowed to prevail. Granted that a probate
court has found, by final judgment, that the decedent possessed testamentary
capacity and her last will was executed free from falsification, fraud, trickery
or undue influence, it follows that giving full expression to her will must be in
order.

Nuguid v. Nuguid
GR L-23445, June 23, 1966
FACTS:

Rosario died single, without descendants, legitimate or illegitimate. Surviving

were her legitimate parents, Felix and Paz, and 6 brothers and sisters. One
of the siblings filed a holographic will allegedly executed by Rosario 11 years
before her death and prayed that she be admitted to the probate and be
appointed administrator. The parents opposed saying that they are the
compulsory heirs of the decedent in the direct ascending line and that the will
should be void on the ground of absolute preterition.

ISSUE:

Is the will void on the ground of preterition?

RULING:

YES. The decedent left no descendants, legitimate or illegitimate. But she

left forced heirs in the direct ascending line her parents. And, the will
completely omits both of them; thus receiving nothing by the testament,
depriving them of their legitime; neither were they expressly disinherited. This
is a clear case of preterition. Note that A. 854 of the NCC merely nullifies the
institution of heir. Considering that the will presented solely provides for the
institution of the petitioner asuniversal heir and nothing more, the result is
the same. The will is null and void.

CONSTANTINO C. ACAIN vs. HON. INTERMEDIATE APPELLATE COURT, VIRGINIA A.

FERNANDEZ and ROSA DIONGSON

G.R. No. 72706 October 27, 1987

PARAS, J.:

Facts:

Constantino Acain filed on the RTC, a petition for the probate of the will of the late Nemesio
Acain and for the issuance to the same petitioner of letters testamentary, on the premise that
Nemesio Acain died leaving a will in which petitioner and his brothers Antonio, Flores and Jose
and his sisters Anita, Concepcion, Quirina and Laura were instituted as heirs. The will contained
provisions on burial rites, payment of debts, and the appointment of a certain Atty. Ignacio G.
Villagonzalo as the executor of the testament.

On the disposition of the testator's property, the will provided: THIRD: All my shares that I may
receive from our properties. house, lands and money which I earned jointly with my wife Rosa
Diongson shall all be given by me to my brother SEGUNDO ACAIN Filipino, widower, of legal
age and presently residing at 357-C Sanciangko Street, Cebu City. In case my brother Segundo
Acain pre-deceased me, all the money properties, lands, houses there in Bantayan and here in
Cebu City which constitute my share shall be given to me to his children, namely: Anita,
Constantino, Concepcion, Quirina, laura, Flores, Antonio and Jose, all surnamed Acain.

Obviously, Segundo pre-deceased Nemesio. Thus it is the children of Segundo who are
claiming to be heirs, with Constantino as the petitioner. The oppositors filed a motion to dismiss
on the following grounds for the petitioner has no legal capacity to institute these proceedings;
(2) he is merely a universal heir and (3) the widow and the adopted daughter have been
pretirited.

Issue:

Whether or not private respondents have been preterated

Ruling:

Preterition consists in the omission in the testator's will of the forced heirs or anyone of them
either because they are not mentioned therein, or, though mentioned, they are neither instituted
as heirs nor are expressly disinherited. Insofar as the widow is concerned, Article 854 of the
Civil Code may not apply as she does not ascend or descend from the testator, although she is
a compulsory heir. Stated otherwise, even if the surviving spouse is a compulsory heir, there is
no preterition even if she is omitted from the inheritance, for she is not in the direct line. (Art.
854, Civil code) however, the same thing cannot be said of the other respondent Virginia A.
Fernandez, whose legal adoption by the testator has not been questioned by petitioner. Under
Article 39 of P.D. No. 603, known as the Child and Youth Welfare Code, adoption gives to the
adopted person the same rights and duties as if he were a legitimate child of the adopter and
makes the adopted person a legal heir of the adopter. It cannot be denied that she has totally
omitted and preterited in the will of the testator and that both adopted child and the widow were
deprived of at least their legitime. Neither can it be denied that they were not expressly
disinherited. Hence, this is a clear case of preterition of the legally adopted child.

Adjudication:
PREMISES CONSIDERED, the petition is hereby DENIED for lack of merit